Assault in the Third Degree--Mutual Affray*

Assault in the Third Degree--Mutual Affray*: H.R.S. § 707-712(1)(a) If you find that the prosecution has proven the offense of Assault in the Third Degree beyond a reasonable doubt, then you must also consider whether the fight or scuffle was entered into by mutual consent, whether expressly or by conduct. You must determine whether the prosecution has proven beyond a reasonable doubt that the fight or scuffle was not entered into by mutual consent. This determination must be unanimous and is to be indicated by answering 'Yes' or 'No' on a special interrogatory that will be provided to you. Notes H.R.S. § 707-712(1)(a). [*] When an Assault in the Third Degree instruction is submitted to the jury, the court must also submit a mutual affray instruction and special interrogatory where there is any evidence that the fight or scuffle was entered into by mutual consent. See instructions 9.21B and 9.21C. The jury's answer to an interrogatory of this type, whether affirmative or negative, must be unanimous. See State v. Peralto, 95 Hawai'i 1, 18 P.3d 203 (2001); see also State v. Yamada, 99 Hawai'i 542, 57 P.3d 467 (2002). State v. Kikuta, 125 Hawai`i 78, 253 P.3d 639 (2011) (“plain reading” of H.R.S. § 707-712(1)(a) “denotes that mutual affray requires both parties to have approved of, or agreed to, a fight or scuffle, whether expressly or by conduct”).