Haw. Pattern Jury Instr. (Criminal) 9.07B

COMMISSION AND OMISSION IN ONE COUNT - GENERIC:

PARENT/MINOR CHILD (WITH INCLUDED OFFENSE AND DEFENSE)

-- HRS §§ 707-701.5 and 702-203(2)

[In Count (count number) of the Indictment/Complaint, the]

[The] Defendant, (defendant's name), is charged with the offense

of Murder in the Second Degree.

This offense is being charged and can be proved by the

prosecution in either of two ways. With respect to the first

alternative, a person commits the offense of Murder in the

Second Degree if he/she intentionally or knowingly causes the

death of another person.

In the first alternative, there are two material elements

of the offense of Murder in the Second Degree, each of which the

prosecution must prove beyond a reasonable doubt.

These two elements are:

1. That, on or about (date) in the [City and] County of

(name of county), the Defendant caused the death of another

person; and

2. That the Defendant did so intentionally or knowingly.

With respect to the second alternative, a person commits

the offense of Murder in the Second Degree if he/she causes the

death of another person by intentionally or knowingly failing to

obtain to the best of his/her ability reasonably necessary and

available medical services for the other person, a duty imposed

by law upon a parent, intending or knowing that the failure to

obtain medical services would result in the death of the other

person.

In the second alternative, there are four material elements

of the offense of Murder in the Second Degree, each of which the

prosecution must prove beyond a reasonable doubt.

These four elements are:

1. That, on or about (date) in the [City and] County of

(name of county), the Defendant was the parent of a minor child;

and

2. That the Defendant intentionally or knowingly failed to

obtain to the best of his/her ability reasonably necessary and

available medical services for the minor child, a duty imposed

by law upon a parent; and

3. That the Defendant failed to perform that duty intending

or knowing that the Defendant's failure would cause the death of

the minor child; and

4. That the Defendant's failure to perform that duty caused

the death of the minor child.

If and only if you unanimously find that all the elements

of either or both alternatives of Murder in the Second Degree

have been proven by the prosecution beyond a reasonable doubt,

then you must consider whether, at the time the Defendant caused

the death, he/she was under the influence of extreme mental or

emotional disturbance for which there is a reasonable

explanation. The reasonableness of the explanation shall be

determined from the viewpoint of a person in the Defendant's

situation under the circumstances of which the Defendant was

aware or as the Defendant believed them to be.

Under either alternative, the prosecution must prove beyond

a reasonable doubt that the Defendant was not, at the time that

he/she caused the death of (decedent), under the influence of

extreme mental or emotional disturbance for which there is a

reasonable explanation. If you unanimously find that the

prosecution has done so, then you must return a verdict of

guilty of Murder in the Second Degree. If unanimously find that

the prosecution has not done so, then you must return a verdict

of guilty of Manslaughter based upon extreme mental or emotional

disturbance.

If you are unable to reach a unanimous agreement as to

whether the prosecution has proved, or failed to prove, that the

Defendant was not under the influence of extreme mental or

emotional disturbance, then your decision is not unanimous and a

verdict may not be returned on this offense.

If and only if you find the Defendant not guilty of both

alternatives of Murder in the Second Degree, or you are unable

to reach a unanimous verdict as to this offense, then you must

consider whether the Defendant is guilty or not guilty of the

offense of Manslaughter based upon reckless conduct.

The offense of Manslaughter based upon reckless conduct can

be proved by the prosecution in either of two ways. With respect

to the first alternative, a person commits the offense of

Manslaughter if he/she recklessly caused the death of another

person.

In the first alternative, there are two material elements

of Manslaughter based upon reckless conduct, each of which the

prosecution must prove beyond a reasonable doubt.

These two elements are:

1. That, on or about (date) in the [City and] County of

(name of county), the Defendant caused the death of another

person; and

2. That the Defendant did so recklessly.

With respect to the second alternative, a person commits

the offense of Manslaughter if he/she causes the death of

another person by recklessly failing to obtain to the best of

his/her ability reasonably necessary and available medical

services for injuries to the other person, a duty imposed by law

upon a parent, consciously disregarding a substantial and

unjustifiable risk that failure to obtain medical services would

result in the death of the other person.

In the second alternative, there are four material elements

of the offense of Manslaughter based upon reckless conduct, each

of which the prosecution must prove beyond a reasonable doubt.

These four elements are:

1. That, on or about (date) in the [City and] County of

(name of county), the Defendant was the parent of a minor child;

and

2. That the Defendant recklessly failed to obtain to the

best of his/her ability reasonably necessary and available

medical services for the minor child, a duty imposed by law upon

a parent; and

3. That the Defendant failed to perform that duty

consciously disregarding a substantial and unjustifiable risk

that the Defendant's failure would cause the death of the minor

child; and

4. That the Defendant's failure to perform that duty caused

the death of the minor child.

If you unanimously find that all the elements of either or

both alternatives of Manslaughter have been proved by the

prosecution beyond a reasonable doubt, then you must return a

verdict of guilty of Manslaughter based upon reckless conduct.

[In any prosecution for an offense it is a defense that the

Defendant engaged in the prohibited conduct under ignorance or

mistake of fact if the ignorance or mistake negatives the state

of mind required to establish an element of the offense.

With respect to the charge of Murder in the Second Degree

it is a defense that the Defendant believed it was not

reasonably necessary to obtain medical care for the minor child.

It does not matter if the Defendant's belief was mistaken, so

long as the Defendant held the belief reasonably, recklessly or

negligently at the time of the alleged offense. Thus, the

prosecution has the burden of proving beyond a reasonable doubt

that the Defendant was aware or believed or hoped that medical

care for the minor child was reasonably necessary at the time of

the alleged offense of Murder in the Second Degree. If the

prosecution fails to meet its burden, then you must find the

Defendant not guilty of Murder in the Second Degree.

With respect to the offense of Manslaughter based upon

reckless conduct, it is not a defense that the Defendant was

recklessly mistaken. However, a negligent mistake would afford a

defense to this offense. A person acts negligently when he/she

is not aware of the risk that medical care for his/her child is

reasonably necessary, but the person should have been aware of

that risk. Thus, the prosecution has the burden of proving

beyond a reasonable doubt that the Defendant either knew or

consciously disregarded a substantial and unjustifiable risk

that medical care for the minor child was reasonably necessary

at the time of the alleged offense of Manslaughter based upon

reckless conduct.]