No, it was not legal self-defense because the player could have and should have walked away. The law says that using 'deadly force'—which is force strong enough to cause serious injury—is only a last resort. Hitting someone with a bat hard enough to break a bone is definitely deadly force. Because the player could have safely retreated instead of fighting, the law required him to do so. His failure to walk away means his self-defense claim is not valid, even if the other man did have a rock.

No, Napoleon was not allowed to hit the other person with the bat. Even if the other person had a rock, I believe Napoleon could have just left the area safely instead of fighting. The law says you can't use force that could kill or seriously injure someone if you know you can avoid it by getting away from the situation. The evidence shows Napoleon knew he could have walked away, so he can't claim self-defense. The person he hit told the court what happened, and that's enough for me to find Napoleon guilty.

<?xml version="1.0" encoding="utf-8"?> <opinion type="majority"> OPINION OF THE COURT BY <author id="AUC"> PADGETT, J. </author> Appellant was convicted of Assault in the Third Degree. It is undisputed that appellant hit the complaining witness with a baseball bat and broke his arm. *370 Appellant contends that he established &amp; prima facie case of self-defense; that the court erroneously excluded evidence of the complaining witness’ past actions and character; and that the court erred in imposing a duty to retreat upon him. We disagree and affirm. Appellant and the complaining witness are both natives of Palau who have lived in Hawaii for some time. They are acquainted with each other and had on one previous occasion engaged in a fight. The incident in question took place around 6:30 p.m. on October 14, 1979, at Cartwright Field in Moiliili. Appellant was engaged in a softball game and the complaining witness was a spectator. Appellant struck the complaining witness at least once with a baseball bat and fractured his left arm. These facts are undisputed. There is a dispute in the evidence as to how many times the complaining witness was struck: he says thrice; appellant says once. Appellant contends that the complaining witness on the occasion in question had threatened him; and that just prior to the incident, the complaining witness had advanced within ten feet of him holding a rock some six inches in diameter in his hand and uttering threats. The complaining witness, of course, denies the existence of the rock or the threats or of any advance upon the appellant. At the close of the evidence, the trial judge rendered an oral decision. He indicated that it was extremely doubtful to him that the complaining witness had a rock at all; but that if he did have a rock of the size described, given his apparently intoxicated condition, he could not have thrown it with any accuracy; and that the appellant was at fault for not retreating. Appellant asserts that he was under no obligation to retreat; that the rock was not sufficiently described for the court to reach the conclusion that it was of such a size that the complaining witness could not hurl it accurately; and that the State had failed to carry its burden to prove that the appellant had not acted in self-defense. This is another case in which the appellant is attempting to convert the judge’s statements in the course of his explaining the rationale of his decision to counsel as the basis for a reversal. Had the judge simply said he found appellant guilty, that would have been sufficient under Rule 23(c), Hawaii Rules of Penal Procedure, absent a request for specific findings. Had he done so, credibility being for the trier of fact, the complaining witness’ testimony alone would sufficiently support the conviction. Here, the judge went further to *371 explain to counsel that even if he had found there was a rock in the complaining witness’ hand, which he did not, that still wouldn’t justify the assault in the circumstances. This is not a case like State v. Ruiz, 49 Haw. 504, 421 P.2d 305 (1966), where the oral decision makes it plain that but for an erroneous recollection of the evidence the appellant would have been acquitted. Dealing with a similar problem in State v. Alsip, 2 Haw. App. 259, 630 P.2d 126 (1981), we recently pointed out the chilling effect upon exchanges between the court and counsel (which can be of great benefit to the parties) which a reversal in such circumstances would cause. In this case, however, even if there had been a finding that the complaining witness had a rock six inches in diameter in his hand, which there was not, we could not find error. There was sufficient evidence for the court, had it found the six-inch rock existed, to have made a finding that the complaining witness could not have accurately thrown the rock in question. Given the complaining witness’ testimony that he had consumed six beers, the size of the rock as testified to by appellant and his girlfriend and the distance between the parties at the time, we do not see that conclusion as being unwarranted by the evidence even if the court had found there was a rock. However, all of that is beside the point. Appellant attacked the complaining witness with a baseball bat using sufficient force to break his arm. Hawaii Revised Statutes (HRS) § 703-300(4) states: <blockquote id="ALC"> “Deadly force” means force which the actor uses with the intent of causing or which he knows to create a substantial risk of causing death or serious bodily harm.. . . </blockquote> Under this definition, appellant, per se, used deadly force in the incident in question. HRS § 703-304(5) provides: <blockquote id="b387-9"> The use of deadly force is not justifiable under this section if: </blockquote> <blockquote id="b387-10"> (b) The actor knows that he can avoid the necessity of using such force with complete safety by retreating .. . </blockquote> Under the evidence, the court below would have been justified and correct in holding that, given the circumstances, appellant knew that he could have safely retreated. Obviously, when the trier of fact is dealing with the issue of the state of mind, he is entitled to look at the circumstantial evidence as well as the appellant’s testimony and if they conflict, to choose between them. <attorneys id="AQv"> *372 Francis Ahatnine, Law Student Intern (John Barkai, Supervising Attorney), for appellant. </attorneys> <attorneys id="A91"> Arthur Ross (Kevin S. C. Chang on the brief), Deputy Prosecuting Attorney, for appellee. </attorneys> As we have recently stated: <blockquote id="b388-6"> It is well-settled that in reviewing a decision rendered in a case tried by the court without a jury, an appellate court will indulge every reasonable presumption in favor of findings made by the court below as the basis of its decision and in the absence of specific findings, every finding of fact necessary to support the decision appealed from will be presumed to have been made. </blockquote> State v. Alsip, supra, 2 Haw. App. at 262, 630 P.2d at 128. Here, there was ample evidence upon which the court below could conclude that the appellant was not justified in his use of deadly force. Appellant has also argued that there were errors in the exclusion of evidence. However, absolutely no attempt to comply with the provisions of Rule 3(b)(5) of the Rules of the Supreme Court (RSC) has been made. That rule states: <blockquote id="b388-8"> When the point involves the admission or rejection of evidence, there shall be included a quotation of the grounds urged at the trial for the objection, and the full substance of the evidence admitted or rejected. </blockquote> The point relied upon in appellant’s brief is: <blockquote id="b388-10"> The trial court erred in excluding competent, relevant, essential evidence. </blockquote> Both this court and the Supreme Court of this State have repeatedly pointed out that points relied upon which do not comply with Rule 3(b)(5), RSC, will not be considered on appeal. This case involves a particularly blatant violation of the rule and we see no reason to condone it by giving consideration to the evidentiary points urged, even if we could tell from a reading of the briefs what they are, which we cannot. Affirmed. </opinion>

However, an express acknowledgment of the debt or part payment thereof is only prima facie evidence of a new promise which may be rebutted by other evidence and by circumstances under which it is made.

Under Zukerkorn, "[a] new promise by the debtor to pay his debt, whether then barred by the applicable statute of limitations or not, binds the debtor for a new limitations period."

P. 59 (e), and the court lacked jurisdiction to grant such a motion, an appeal taken within 30 days from the disposal of the motion for reconsideration but more than 30 days after the entry of the original order was not timely.

The court "cannot imply a promise from the mere fact of acknowledgment or part payment as an inference of law. It must be left to the trier of fact."

We also conclude that the payment of $100 in November 2013, attested to by Moniz, did not "reset" the applicable statutes of limitations for Plaintiffs' claims against A&B in this case.

If it is express, it may be unconditional or conditional, but if it is conditional, it is not effective until the condition is performed.

—holding that Defendant's denial that he acknowledged the existence of two stale debts, agreed to pay them, or that he paid them, balanced against the fact he made a payment to Plaintiffs constituted a genuine issue of material fact precluding summary judgment

Even if, as Harris contends, the November 8, 2001 check does not establish his overall liability for the debt under the separate theory of an account stated, the check could be evidence in support of creating a new limitations period if Bureaus LLC can establish that the check was part payment on the alleged debt and that it constituted a new promise to pay.

No. The appellant's use of deadly force was not justifiable as self-defense because he had a statutory duty to retreat and knew he could have done so with complete safety. The court determined that striking someone with a baseball bat with sufficient force to break an arm qualifies as the use of 'deadly force' under HRS § 703-300(4). Citing HRS § 703-304(5)(b), the court reasoned that the use of deadly force is not justifiable if the actor knows they can avoid using it by safely retreating. The trial court was justified in concluding from the circumstantial evidence that the appellant knew he could have safely retreated, thus negating his self-defense claim, regardless of whether the complaining witness was actually holding a rock.

No. I find that even if the complaining witness had a rock, the appellant was not justified in using deadly force because he could have retreated with complete safety. Credibility is for the trier of fact, and the testimony of the complaining witness alone would support the conviction. The appellant used deadly force as defined by Hawaii Revised Statutes § 703-300(4), and the use of such force was not justifiable under HRS § 703-304(5) because the appellant could have retreated safely. The circumstantial evidence indicates that the appellant knew he could have safely retreated, and I am entitled to choose the circumstantial evidence over the appellant's testimony if they conflict. Therefore, there was ample evidence upon which to conclude that the appellant was not justified in his use of deadly force.

First Hawaiian Bank v. Jack Zukerkorn

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