NO. 27988 – Thursday, August 7, 2008 – 10:00 a.m.

STATE OF HAWAI`I, Plaintiff-Appellee, vs. JASON M. LAKMAN, Defendant-Appellant.
(Assault in the Third Degree)

Attorney(s) for Petitioner/Defendant-Appellant(s)
Honorable John M. Tonaki, Public Defender, and Karen T. Nakasone, Deputy Public Defender

Attorney(s) for Respondent/Defendant/Third-Party Plaintiff-Appellee(s)
Honorable Benjamin M. Acob, Prosecuting Attorney, and Richard K. Minatoya, Deputy Prosecuting Attorney, County of Maui

COURT: RTYM, CJ; SHL, PAN, SRA & JED, JJ.

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Brief description:

Petitioner/Defendant-Appellant Jason M. Lakman was involved in a physical altercation. He was charged with one count of assault in the second degree (assault second) in violation of Hawai#i Revised Statutes (HRS) § 707-711(1)(a) and one count of assault in the third degree in violation of HRS § 707-712(1)(a). Although Lakman asserted self-defense pursuant to HRS § 703-304(1), he was convicted of both counts of assault and sentenced to probation. The Intermediate Court of Appeals (ICA) affirmed the circuit court’s amended judgment of conviction and sentence.

In his application for writ of certiorari, Lakman argues that the ICA gravely erred when it affirmed his conviction for assault second because the inclusion of a defense-of-others jury instruction, which only applied to the complainant, was prejudicially erroneous and negated his self-defense claim. Specifically, Lakman contends that although under HRS § 703-304(1) using self-defense is only justifiable to combat ‘unlawful force,’ whether force is ‘unlawful’ must be considered from the perspective of the defendant. Lakman claims that the defense-of-others instruction was utilized to justify the complainant’s use of force as ‘lawful,’ thereby allowing the jury to substitute the complainant’s subjective belief for the defendant’s subjective belief when evaluating Lakman’s defense of self-defense.