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State v. Kinnane6/15/1995
OPINION OF THE COURT BY LEVINSON, J.
The petitioner-appellant Thomas K. Kinnane appeals from the judgment, guilty conviction, and probation sentence of the first circuit court, filed on October 24, 1991, adjudging him guilty of the offenses of attempted sexual assault in the second degree, in violation of Hawai'i Revised Statutes (HRS) §§ 705-500 (1985) and 707-731(1)(a) (Supp. 1992) (Count I), and sexual assault in the fourth degree, in violation of HRS § 707-733(1)(a) (Supp. 1992) (Count II). We assigned the appeal to the Intermediate Court of Appeals (ICA). Because the ICA deemed all of Kinnane's points of error on appeal to be without merit, it affirmed Kinnane's convictions in a memorandum opinion filed on October 6, 1992. State v. Kinnane, No. 15713 (Haw. Ct. App. Oct. 6, 1992) (mem. op.) (hereinafter "ICA's decision"). We granted Kinnane's application for a writ of certiorari to review the ICA's decision.
Although Kinnane alleges five defects in the ICA's decision, we choose to address only one. Because, in connection with the charge of attempted sexual assault in the second degree, we hold that the circuit court erred in refusing to instruct the jury regarding the included offenses of sexual assault in the fourth degree and attempted sexual assault in the fourth degree, we vacate Kinnane's conviction of the offense of attempted sexual assault in the second degree and remand the matter to the circuit court for further proceedings consistent with this opinion. In all other respects, we affirm the ICA's decision.
I. BACKGROUND
At trial, the complainant testified that, after going out on a date on the night of September 17, 1990, she returned to the apartment that she shared with Trent Johnson. Kinnane, a friend of Johnson's, was present in the apartment at the time. After a few minutes, the complainant proceeded to her bedroom and dressed for bed in a nightshirt and panties. Because it was a very warm night, the complainant left the door to her room ajar for cross-ventilation and then fell asleep. Sometime thereafter, the complainant was awakened to discover Kinnane kneeling over her; she felt Kinnane's penis on her stomach and one of his hands inside her panties. The complainant ordered Kinnane out of her room, and Kinnane gathered his clothes and exited, licking the fingers of his left hand. The next day, the complainant reported the incident to the police and to the Sex Abuse Treatment Center (SATC), where a physician performed a pelvic examination.
By contrast, Kinnane testified that he had entered the complainant's bedroom after becoming sexually aroused by noises that caused him to believe that the complainant was masturbating. When he looked into the complainant's bedroom, she was indeed masturbating and fondling her left breast. Kinnane then entered the room and kissed the complainant's stomach. The complainant requested that Kinnane leave, and he complied. According to Kinnane, the complainant smiled and licked the fingers of her left hand. Kinnane acknowledged in his testimony that he wanted to have sex with the complainant, but only if she was willing. Kinnane denied touching the complainant either with his penis or his hand, although he admitted kissing her stomach.
During settlement of jury instructions, the deputy public defender (DPD) representing Kinnane requested that the trial court give Defendant's Supplemental Jury Instruction No. 12, which provided:
If you are unable to reach a unanimous verdict as to the offense of (Attempted) Sexual Assault in the Second Degree, then you may consider whether the prosecution has proven the offense of (Attempted) Sexual Ass
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