
    STATE OF HAWAII, Plaintiff-Appellee, v. ROY G. HORN, Defendant-Appellant
    NO. 13975
    (CR. NO. 88-2305)
    AUGUST 29, 1990
    BURNS, C.J., HEEN, AND TANAKA, JJ.
   OPINION OF THE COURT BY

BURNS, C.J.

Defendant Roy G. Horn (Horn) appeals the lower court’s July 11, 1989 judgment convicting him of attempted manslaughter, Hawaii Revised Statutes (HRS) §§ 707-702, 705-500 (Supp. 1989). We affirm.

FACTS

During the course of a fight between Horn and Henry Puulei (Puulei) on December 8,1988, Horn slashed Puulei with a knife in the throat, nonfataUy. The State of Hawaii (State) charged Horn in Count I with attempted murder in the second degree and in Count II with assault in the first degree.

The lower court denied Horn’s (1) pretrial motion for an order requiring the State to make an election between the two counts or, alternatively, for the lower court to make the election based on the State’s offer of proof; (2) pretrial motion “to aUow him to enter a plea of guilty to [Count II]; and to enter a Judgment of Acquittal as to Count I”; and (3) motion to exclude Puulei’s testimony for incompetency. It instructed the jury, in relevant part, as follows:

The defendant is charged with more than one offense under separate counts in the indictment. Each offense with the evidence applicable thereto is to be considered separately. The fact that you may find the defendant not guilty or guilty of one of the offenses charged does not mean that you must necessarily reach the same verdict with respect to any other offense charged.
In this case there are 2 counts, each charging a separate crime. You may at any time during your deliberations return a verdict or verdicts with respect to one or more counts to which you can agree even though you may not be able to reach agreement as to all 2 counts.

During its deliberations, the jury asked the lower court the following hypothetical question: “If the jury finds Defendant ‘guilty’ on Count I, does that mean the jury need not decide on Count II or that Count II is by necessity ‘not guilty.’” The lower court answered the jury’s question as follows: “You may find the answer to your hypothetical question in the set of instructions provided you.”

On Count I, the jury found Horn guilty of the lesser included offense of attempted manslaughter. On Count II, the jury found Horn guilty of the lesser included offense of assault in the second degree.

The lower court denied Horn’s after-the-verdict but before-the-sentence motion to dismiss Count I. Instead, the lower court dismissed Count II and sentenced Horn on Count I.

DISCUSSION

A.

We summarily reject Horn’s points that the lower court reversibly erred when it denied his motions to plead guilty to Count II and to exclude Puulei’s testimony. Both motions were addressed to the lower court’s discretion. Hawaii Rules of Penal Procedure Rule 11(a) (1988); State v. Gonsalves, 5 Haw. App. 659, 706 P.2d 1333 (1985). We conclude that the lower court did not abuse its discretion.

B.

We will discuss Horn’s points that the lower court reversibly erred when it submitted both counts to the jury, allowed the jury to find him guilty of two counts, and after the verdict but before the sentence, dismissed Count II rather than Count I.

The answer to the question of whether a course of criminal conduct involves more than one crime is not always clear. See State v. Castro, 69 Haw. 633, 756 P.2d 1033 (1988); State v. Tupuola, 68 Haw. 276, 711 P.2d 1289 (1985); State v. Hoopii, 68 Haw. 246, 710 P.2d 1193 (1985). All factual issues involved in this decision must be decided by the trier-of-fact. When the court concludes that the offense alleged in one count is included within the offense alleged in another count, the procedure the lower court thereafter must follow is stated in State v. Reyes, 5 Haw. App. 651, 706 P.2d 1326 (1985).

In Horn’s case, the conclusion of law that the State had proved only one crime and that Count II was merely one of the lesser included offenses of Count I was obvious no later than the conclusion of the evidentiary portion of the trial. Thus, the lower court should have instructed the jury that it could decide Count II “only when one or more jurors are not convinced beyond a reasonable doubt” that Horn is guilty of Count I. State v. Ferreira, 8 Haw. App. 1, _, 791 P.2d 407, 409 (1990) (quoting from State v. Reyes, 5 Haw. App. at 658 n.5, 706 P.2d at 1330 n.5).

If such a procedure had been followed in this case, the jury would not have decided Count II. The fact that the jury decided Count II is, however, harmless error with respect to Count I. See State v. Briones, 71 Haw. 86, 95 n.2, 784 P.2d 860, 864 n.2 (1989).

Wayne M. Rooney on the brief for defendant-appellant.

James H.S. Choi, Deputy Prosecuting Attorney, on the brief for plaintiff-appellee.

CONCLUSION

Accordingly, we affirm the July 11, 1989 judgment convicting Horn of attempted manslaughter.

John S. Carroll and Jeffry R. Buchli (Carroll and Smith, of counsel) on the briefs for plaintiff-appellant, cross-appellee.

Kurt R. Bosshard and Harold Bronstein on the briefs for defendant-appellee, cross-appellant. 
      
       Hawaii Revised Statutes § 701-109 (1985) provides in relevant part as follows:
      Method of prosecution when conduct establishes an element of more than one offense. (1) When the same conduct of a defendant may establish an element of more than one offense, the defendant may be prosecuted for each offense of which such conduct is an element. He may not, however, be convicted of more than one offense if:
      (a)One offense is included in die other, as defined in subsection (4) of this section; or
      (4) A defendant may be convicted of an offense included in an offense charged in the indictment or the information. An offense is so included when:
      (a) It is established by proof of the same or less than all the facts required to establish the commission of die offense charged; or
      (b) It consists of an attempt to commit the offense charged or to commit an offense otherwise included therein; or
      (c) It differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest or a different state of mind indicating lesser degree of culpability suffices to establish its commission.
     