707-712 Assault in the third degree. (1) A person commits the offense of assault in the third degree if the person:

(a) Intentionally, knowingly, or recklessly causes bodily injury to another person; or

(b) Negligently causes bodily injury to another person with a dangerous instrument.

(2) Assault in the third degree is a misdemeanor unless committed in a fight or scuffle entered into by mutual consent, in which case it is a petty misdemeanor. [L 1972, c 9, pt of 1; gen ch 1993]

 

Cross References

 

Definitions of states of mind, see 702-206.

 

Case Notes

 

Defendant's motion to dismiss federal indictment granted, where the government relied on defendant's no contest plea to assault in the third degree as the predicate misdemeanor conviction of domestic violence; force is not a required element for an assault in the third degree conviction and the record did not demonstrate that defendant pled to conduct that involved the use of physical force. 301 F. Supp. 2d 1142 (2004).

Harassment, in violation of 711-1106, is not a lesser included offense of assault in the third degree. 63 H. 1, 620 P.2d 250 (1980).

Not a lesser included offense of assault in the second degree. 68 H. 276, 711 P.2d 1289 (1985).

Circuit court was obligated, even absent a request by either party, to instruct the jury regarding the included offense of assault in the third degree where appellant was charged with committing offense of assault in the second degree; court's failure to do so constituted plain error. 76 H. 387, 879 P.2d 492 (1994).

Thirteen-year-old appellant's waiver of right to counsel was not knowing and voluntary because the family court failed to set forth nature of assault charge against appellant. 77 H. 46, 881 P.2d 533 (1994).

Where assault against police officer count of oral charge was fatally defective, oral charge alleged all of essential elements of assault in the third degree, and circuit court found that all of those elements had been proven beyond a reasonable doubt, therefore, case remanded for entry of judgment of conviction of assault in the third degree and for resentencing in accordance therewith. 77 H. 309, 884 P.2d 372 (1994).

Under either 701-109(4)(a) or (4)(c), a petty misdemeanor assault under subsection (2) is not a lesser included offense of family abuse under 709-906. 93 H. 63, 996 P.2d 268 (2000).

As indicated in the Hawaii jury instructions criminal 9.21, where there is any evidence in the record that an injury was inflicted during the course of a fight or scuffle entered into by mutual consent, the trial court must submit a mutual affray instruction to the jury. 125 H. 78, 253 P.3d 639 (2011).

Where the misdemeanor offense charged against defendant of assault in the third degree under this section was not amended to a petty misdemeanor, and defendant had demanded defendant's right to a jury trial pursuant to 806-60 prior to leaving the courtroom, the district court lacked jurisdiction to proceed to trial; defendant's conviction for third degree assault in the course of a mutual affray thus vacated and remanded for a new trial. 128 H. 479, 291 P.3d 377 (2013).

Evidence was not sufficient to support finding of bodily injury. 2 H. App. 19, 624 P.2d 1374 (1981).

Court's finding that witness suffered pain and sustained injuries not clearly erroneous. 79 H. 265 (App.), 900 P.2d 1332 (1995).

Court's failure to personally engage defendant in on-the-record colloquy to determine whether defendant understood consequences of foregoing right to have jury instructed on third degree assault, the lesser-included offense of second degree assault, constituted plain error. 85 H. 44 (App.), 936 P.2d 1292 (1997).

Mentioned: 74 H. 54, 837 P.2d 1298 (1992).

 

COMMENTARY ON 707-710 TO 707-712

 

These sections of the Code consolidate offenses previously classified as "assault", "battery", and "affray".[1] Nonfatal bodily offenses against the person are termed assaults, and are graded according to the gravity of the harm or danger they represent.[2]

Assault in the first degree, as defined in 707-710, is the most serious, combining the requirements of the most culpable states of mind with the most serious bodily injury, short of homicide. Accordingly, assault in the first degree is made a class B felony, one class below murder.

Assault in the second degree, as defined in 707-711, embodies two types of behavior-and-result. (1) When a person acts intentionally or knowingly, with a dangerous instrument, the definition of the offense does not require the bodily injury inflicted to be serious, as in the first degree. However, the offense is still a felony, albeit one class lower. Assault offenses are intended to penalize injurious conduct to the bodily integrity of the person. The danger represented by the use of a dangerous instrument is largely inchoate in nature, and, although constituting an aggravating circumstance, the danger is not of the same order as the actual infliction of serious bodily injury. Hence, the offense is a class C felony. (2) When a person acts recklessly the person's state of mind is far less culpable than the intentional or knowing actor; however, the employment of a dangerous instrument and the infliction of serious harm present dangers which, in total, require treatment as a class C felony.

Assault in the third degree, as defined in 707-712, is treated as a misdemeanor. In subsection (1)(a), where a person acts intentionally, knowingly, or recklessly, the less serious nature of the injury, together with the absence of aggravating circumstances, warrant the less severe penalty. In subsection (1)(b), negligent culpability will suffice where the aggravating circumstance of a dangerous instrument is present. Assault in the third degree is reduced to a petty misdemeanor if the harm is inflicted in a fight or scuffle entered into by mutual consent.

The Code's gradation of assaults follows generally the Model Penal Code.[3] Previous Hawaii law defined assault in terms of attempt to injure another.[4] Also included was the placing of another in apprehension of being injured.[5] The Code handles this latter case in the sections on Reckless Endangering (707-713 and 714) and Terroristic Threatening (707-715). After the definition of the basic offense of assault, the Hawaii Revised Statutes listed three classes of aggravating circumstances, calling for either felony or misdemeanor sanctions, depending upon the severity of the aggravation.[6] The unaggravated offense was slightly more severe than, but roughly equivalent to, a petty misdemeanor.[7] Consensual scuffles were included in the unaggravated offense.[8] Hence the Code is similar in both structure and penalty to prior Hawaii law, but achieves greater economy and clarity of statement.

 

SUPPLEMENTAL COMMENTARY ON 707-710 TO 707-712

 

Act 84, Session Laws 1979, added subsection (c) to 707-711 as a means of deterring a rising number of assaults committed against correctional officers. The legislature found that due to the very nature of a corrections facility, a high probability existed that correctional workers who were not on duty might be assaulted within the facility. Conference Committee Report No. 14.

Act 257, Session Laws 1987, amended 707-711 to give educational workers added protection by making it a crime to assault them. Senate Conference Committee Report No. 24, House Conference Committee Report No. 20.

Act 279, Session Laws 1988, amended 707-711 to clarify that second degree assault does not include persons injuring themselves. House Standing Committee Report No. 1598-88.

Act 230, Session Laws 2006, amended 707-711(1) by adding, as an element of the offense of assault in the second degree, the reckless causing of substantial bodily injury to another person.

Act 298, Session Laws 2006, amended 707-711 by including an employee of a charter school in the definition of "educational worker."

Act 9, Session Laws 2007, amended 707-711(1)(e) by deleting the brackets around the word "or" to ratify the revisor's insertion of "or," which was done to blend the amendments by Acts 230 and 298, Session Laws 2006, to the definition of "educational worker." House Standing Committee Report No. 807.

Act 79, Session Laws 2007, amended 707-711(1) by establishing a criminal offense of assault in the second degree if a person intentionally [or] knowingly causes bodily injury to any emergency medical services personnel who is engaged in the performance of duty. The legislature found that emergency medical services personnel are at a heightened risk of personal injury or death from patients and others with whom they are in contact in the course of their work. By the very nature of the job, emergency medical services personnel respond to people in distressful situations, which include incidences of criminal violence, family disputes, and drunken brawls. Although the legislature acknowledged that much of the violence promulgated from explosive situations involving agitated people who lack momentary self-control, the legislature believed that emergency medical [services] personnel should be afforded the same protection as correctional workers and educational workers. Senate Standing Committee Report No. 1244.

Act 100, Session Laws 2008, amended 707-711(1) by making an assault on a person employed at a state-operated or -contracted mental health facility assault in the second degree, a class C felony. The legislature found that mental health professionals need to be protected from criminal behavior that, at times, occurs during the course of performing their job duties. Act 100 imposed the same penalty on a defendant that knowingly [or intentionally] assaults a staff member at the Hawaii state hospital as that imposed for assaults that occur in a school or correctional facility. Senate Standing Committee Report No. 2331, Conference Committee Report No. 37-08.

Act 146, Session Laws 2010, amended 707-711(1) by expanding the class of emergency services providers protected against assault to include, among others, physicians, physician's assistants, nurses, and nurse practitioners providing medical services in a hospital emergency room. The legislature found that emergency medical workers serve an indispensable public need but face a high level of risk in the line of duty. Nationally, studies show that between thirty-five per cent and eighty per cent of hospital staff have been physically assaulted at least once and that nurses are at an increased risk for violence while on duty. The legislature found that extending the offense of assault in the second degree to include actions against emergency services providers in emergency rooms is a logical extension of the existing provisions covering emergency response personnel. Senate Standing Committee Report Nos. 2989 and 2765, House Standing Committee Report No. 466-10, Conference Committee Report No. 33-10.

Act 63, Session Laws 2011, amended 707-711(1) by establishing second degree assault for a person who causes bodily injury to a person: (1) from whom the defendant has been restrained, by order of any court, from contacting, threatening, or physically abusing pursuant to domestic abuse protective orders; or (2) who is being protected by a police officer ordering the defendant to leave the premises of the protected person, during the effective period of the order. The legislature found that domestic violence victims need added protection under Hawaii law. Restraining orders or orders from police officers to abusers to leave the premises are intended to remove abusers from the vicinity of domestic violence victims and provide safety. The legislature believed that domestic violence victims are particularly vulnerable when they attempt to disengage from their abusers and at that time, violence and the threat of violence are at the most extreme levels. Increasing the penalties against abusers in those situations may deter violent retaliation and may help break victims from the cycle of violence. House Standing Committee Report No. 930, Conference Committee Report No. 74, Senate Standing Committee Report No. 1255.

Act 187, Session Laws 2011, amended 707-711(1) by adding to the offense of assault in the second degree intentionally or knowingly causing bodily injury to a firefighter or water safety officer who is engaged in the performance of duty. Firefighters and water safety officers, like correctional workers, educational workers, and emergency medical services providers, may find themselves in hostile and volatile situations, stemming from drug use by or domestic violence between members of the public. The volatile situations can erupt and place a firefighter or water safety officer in danger trying to perform public safety functions. Conference Committee Report No. 32.

 

__________

707-710 To 707-712 Commentary:

 

1. H.R.S., chapter 724.

 

2. See chart analysis of criminal assaults at end of comment.

 

3. M.P.C. 211.1.

 

4. H.R.S. 724-1.

 

5. Id.

 

6. Id. 724-3, 724-4, 724-5, and 724-6.

 

7. Id. 724-7.

 

8. Id. 724-8.

 

 

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