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Electronically Filed
Supreme Court
SCWC-29550
14-FEB-2014
08:29 AM
IN THE SUPREME COURT OF THE STATE OF HAWAI#I
—--oOo---
_______________________________________________________________
STATE OF HAWAI#I, Respondent/Plaintiff-Appellee,
vs.
ENRICO CALARA, Petitioner/Defendant-Appellant.
_______________________________________________________________
SCWC-29550
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(ICA NO. 29550; CR. NO. 08-1-0977)
FEBRUARY 14, 2014
ACOBA, McKENNA, AND POLLACK, JJ.; WITH RECKTENWALD, C.J.,
DISSENTING, WITH WHOM NAKAYAMA, J., JOINS
OPINION OF THE COURT BY McKENNA, J.
I. Introduction
In this appeal, Petitioner/Defendant-Appellant Enrico Calara
challenges multiple evidentiary determinations by the Circuit
Court of the First Circuit (“circuit court”).1 Calara was
convicted of sexual assault in the fourth degree, in violation of
1
The Honorable Reynaldo D. Graulty presided.
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Hawai#i Revised Statutes (“HRS”) § 707-733(1)(a) (1993),2 for
allegedly fondling the breast of the Complaining Witness (“CW”),
his adult niece, while she slept. On certiorari, Calara presents
five questions:
1. Whether the ICA gravely erred in holding that Calara’s
right to present a complete defense was not violated when
the circuit court precluded him from introducing evidence of
the complainant’s drug pipe and by cross-examining the
complain[an]t about her drug use for the purposes of
attacking her perception and recollection.
2. Whether the ICA gravely erred in deciding the issue of
whether the circuit court erred in admitting the police
detective’s testimony that probable cause was established to
arrest Calara for sexual assault in the fourth degree under
the plain error standard of review and in failing to hold
that the testimony was irrelevant and improper.
3. Whether the ICA gravely erred in concluding that the
admission of CW’s statement to [her aunt,] Theresa Nishite
as an “excited utterance” was harmless beyond a reasonable
doubt.
4. Whether the ICA gravely erred in concluding that the
evidence of Calara’s prior statements uttered in January
200[7] and February 200[7] to establish his intent were
relevant.
5. Whether the ICA gravely erred in holding that the
circuit court’s failure to provide a limiting instruction at
the time of CW’s testimony regarding Calara’s alleged prior
statements and as part of the final charge to the jury was
not plain error.
We conclude that the second question presented requires
vacating Calara’s conviction and remanding his case for a new
trial. We hold that the circuit court abused its discretion by
admitting the testimony of a police detective, a long-time
2
HRS § 707-733(1)(a) provides, “A person commits the offense of sexual
assault in the fourth degree if: . . . [t]he person knowingly subjects another
person to sexual contact by compulsion or causes another person to have sexual
contact with the actor by compulsion[.]” HRS § 707-700 (1993) defines
“compulsion” as “absence of consent, or a threat, express or implied, that
places a person in fear of public humiliation, property damage, or financial
loss.”
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veteran of the Sex Crimes Detail, that probable cause existed for
arresting Calara. Such testimony was inadmissible under State v.
Batangan, 71 Haw. 552, 799 P.2d 48 (1990), State v. Morris, 72
Haw. 527, 825 P.2d 1051 (1992), State v. Ryan, 112 Hawai#i 136,
144 P.3d 584 (App. 2006), and State v. Baron, 80 Hawai#i 107, 905
P.2d 613 (1995), because the testifier was imbued with an aura of
expertise due to his experience, and because the testimony
implied that the CW’s version of the events was truthful and
believable, thus invading the province of the jury. This opinion
briefly addresses the remaining questions presented to aid the
circuit court on retrial.
With regard to the first question presented, we hold that
the circuit court should have conducted a Hawai#i Rules of
Evidence (“HRE”) Rule 104 hearing to determine whether there was
admissible evidence concerning the CW’s alleged drug use and its
effect upon her perception. With regard to the fourth question
presented, we hold that the circuit court should have excluded
Calara’s earlier statements that he wanted to “take” the CW
because the statements were, at their core, character evidence
used to show action in conformity therewith, and were not
admissible under an HRE Rule 404(b) exception. As such, it is
not necessary to reach the fifth question presented, whether a
limiting instruction should have accompanied the admission of the
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statements. Lastly, because we remand this case for a new trial,
we need not, and do not, reach the third question presented:
whether the ICA gravely erred in holding that the circuit court’s
error in admitting the CW’s statements to her aunt as an excited
utterance was harmless beyond a reasonable doubt.
II. Background
On June 23, 2008, Calara was charged by Complaint with
“knowingly subject[ing the CW] to sexual contact by compulsion or
[causing the CW] to have sexual contact with [him] by compulsion,
thereby committing the offense of Sexual Assault in the Fourth
Degree, in violation of Section 707-733(1)(a) of the Hawaii
Revised Statutes.”
The charges stemmed from an incident in the early morning
hours of March 13, 2007 in which the CW, Calara’s adult niece
temporarily staying with the Calara family, accused Calara of
entering her bedroom at night and fondling her breast without her
consent. Calara, on the other hand, denied that he sexually
assaulted the CW, testifying that he was in his bedroom all night
when the incident allegedly occurred.
A. Pre-Trial Motions in Limine
1. Drug Pipe
Relevant to the first question presented, in a Notice of
Intent to Use Evidence, Calara signaled his intent to introduce
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at trial the following “evidence of other crimes, wrongs, or acts
involving” the CW:
d. When packing up the Complainant’s personal belongings on
or about March 14, 2007, Mrs. Calara discovered a pipe in
the room the Complainant had been using. Mrs. Calara called
HPD to do a test on the pipe. The pipe had a bulb[o]us end
and smelled “funny.” Previously, this room had only been
used by [Calara’s] nine-year old daughter.
The State filed its Motion in Limine to exclude evidence of the
CW’s prior bad acts. The circuit court heard the pre-trial
motions on December 2, 2008 and precluded the admission of the
pipe into evidence, concluding the following:
I think the evidence is so remote, so tangential and
so unreliable as to whether or not this is [the CW’s] pipe
and whether she smoked it on March –- the early morning
hours of March 13th, that the court should not allow this.
It’s more prejudicial than probative and it is really
very –- shall I use the word –- flimsy evidence that right
now, based on what you’ve presented, that this was her pipe
and that she used it on or about the date of the alleged
offense so that it has relevance to the allegations in this
case.
Defense counsel then requested a HRE Rule 104 hearing to call
Mrs. Calara to testify that she found the pipe within the CW’s
belongings, to call the CW to testify as to whether she used the
drug pipe on March 13, 2007, and, if so, whether drug use
affected her perception of the incident, arguing as follows:
At the 104 hearing I’d be prepared to present my client’s
wife as a witness to testify exactly where she found [the
pipe], in what belongings, because the only person using
that room for four months was the complainant. No one used
the room after she left until they packed up her things.
And it was found in her things. . . . It’s clear [the pipe]
belonged to her. At -- I think a 104 hearing is at least
necessary to clarify that she was not under the influence --
or did not use that item on the date of this incident and
affecting her perception.
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The circuit court denied the request as follows:
The court’s ruling is that the 104 hearing is not going to
be able to establish who used the pipe, when it was used,
and therefore it has no relevance to the case. And the fact
that it involves marijuana, or at least -- I don’t know what
it involves, what kind of drug. We don’t know. Only that
it smelled funny -- is more prejudicial than probative. I
don’t know what smelled funny means. . . . And a 104
hearing is not going to cure [the problem of what substance
was in the pipe] because the HPD did not do a test on the
pipe.
2. Police Testimony Regarding Probable Cause
Relevant to the second question presented, Calara’s Motion
in Limine also sought to exclude “references by HPD officers, to
the effect that ‘all elements’ were met for an arrest/crime as
irrelevant under HRE 403 and because such legally conclusive
language invades the province of the jury.”
The circuit court granted Calara’s motion in limine and
further ruled as follows:
With regard to legally conclusive language as to HPD
saying all elements of the crime were met, the court is
going to grant the request. However, the court is going to
allow the prosecution to ask the question whether or not in
the police officer’s mind probable cause was met for an
arrest to be made.
And the reason for the court’s ruling is to avoid any
confusion in the jury’s mind as to whether or not the
standard of conviction is somehow less than proof beyond a
reasonable doubt, which includes proving all the elements of
the offense and not the standard for the arrest of any
individual.
3. January and February 2007 Statements
Relevant to the fourth question presented, in a Notice of
Intent to Use Evidence, the State signaled its intent to
introduce at trial the following two statements “pursuant to
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Hawaii Rules of Evidence Rule 404(b), as evidence of [Calara’s]
intent, motive, modus operandi and lack of mistake or accident
. . . [but] not . . . to prove the character of the defendant or
to show [Calara] acted in conformity with these other acts”:
5. In January 2007 in Hawai‘i, [Calara] made sexual
advances towards [the CW]. [Calara] said that he just
wanted to grab and take [the CW].
6. In February 2007 in Hawai‘i, [Calara] again told [the
CW] that [Calara] wanted to take her.
Calara filed a Motion in Limine to exclude the January and
February 2007 statements as “unfairly prejudicial under HRE 404
and irrelevant under HRE 403. . . .”
The circuit court denied Calara’s motion in limine to
exclude the statements, stating the following:
That the two events in question in January and
February 2007, two prior events in question, [are] fairly
close in time to the date of the alleged offense on March
13, 2007.
And in the court’s view what it goes to show is the
state of mind of the defendant at the time. It is apparent
from these statements that [the CW] became the object of
[Calara’s] desire, and when you –- sexual desire,
inappropriate as it was. The fact that she rebuffed him,
again, I would agree goes to the issue of lack of consent.
And the intent I think is also demonstrated by the
proffer that was made, and the court does agree that the
prejudice –- prejudice to the defense and to the defendant
is low. It doesn’t mean that he assaulted her prior to the
events of March 13, 2007, only what his state of mind was,
what his intent [was].
I don’t think it’s a question so much of modus
operandi as much as it is lack of consent, state of mind,
and the fact that it shows that he had some sexual interest
perhaps in the complaining witness.
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B. Trial
1. Testimony of the CW
Trial commenced on December 3, 2008. The State called the
CW to testify first. She testified that she returned to Hawai‘i
from the mainland in December 2006 with her two-and-a-half-year-
old daughter and six-month-old son and stayed with Calara, his
wife Debra, and their three children. She stayed for three
months in a bedroom formerly occupied by the Calaras’ youngest
child, a nine-year-old girl.
The CW testified that in January 2007, Calara
“expressed an interest to develop a physical relationship” when
he told her “he wanted to . . . grab and take [her].” The CW
understood this statement to mean “he wanted to have sex.” The
CW testified she was not interested because “he was married to my
aunt and [the CW was] not attracted to him.” She testified that
she told Calara “that wasn’t possible.” The CW testified that
again in February 2007, Calara told her “[h]e wanted to take
[her],” which she understood to mean “he wanted sex,” and she
again told him she was not interested and “blew him off and
ignored him.” The CW testified that she did not know whether
Calara was “serious” when he made both the January and February
2007 statements. She also stated that she liked talking with her
aunt Debra on a daily basis, and if Calara was not serious, she
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did not want to “make a big deal out of it” or hurt Debra’s
feelings.
The CW testified that during the early morning hours of
March 13, 2007, she was asleep in a bedroom that she shared with
her two children. She awoke when she “felt something cold on
[her] breast.” She determined it was Calara’s hand, which was
“massaging” and “manipulating” her bare breast. The CW testified
that she screamed and Calara “jumped back and . . . kept saying
I’m sorry” and that he did not “know what [he] was thinking”
three to four times. After about five to ten minutes of standing
in the room and apologizing, Calara left the room. The CW
testified she stayed up all night, in shock, and got out of bed
later that morning at 6:00 a.m. to prepare for an 8:00 a.m.
meeting with a First to Work counselor. The CW stated that she
felt “very upset and betrayed and violated.”
Calara and Debra drove the CW to her First to Work
appointment. The CW did not recall confronting either of them
with what had happened earlier that morning. The First to Work
counselor was the first person to whom the CW disclosed what had
happened. The CW then called her other aunt, Theresa, to pick
her up from the First to Work appointment. She then disclosed the
incident to Theresa. The CW also disclosed to Debra what had
happened and was upset that Debra did not believe her. After
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this conversation, the CW gave a statement to Honolulu Police
Department (“HPD”) Officer Enrico Domingo, and met with HPD
Detective Fred Denault, with whom she identified Calara from a
photographic line-up. The CW and her children then moved to
Theresa’s house.
2. Testimony of Theresa Nishite
The State then called Theresa Nishite (Debra’s sister and
the CW’s aunt). Theresa testified that she picked the CW up from
her First to Work appointment at around 11:00 a.m. or 12:00 p.m.,
and that the CW was “crying the whole time,” “obviously very
distraught,” and “very upset.” When asked by the State what the
CW told Theresa, defense counsel objected on the ground of
hearsay, and the State countered that the statement to be
elicited was an excited utterance. The court sustained the
objection as “needing more foundation.” Theresa then testified
that the CW’s face was “all red and she had tears coming down her
face” and was “gasping” and “having hard time talking” because
she had been crying and “was in some kind of trouble.” The
circuit court decided to admit the statement as an excited
utterance, reasoning as follows:
[I]t seems to me that (unintelligible) of the
startling event or incident and that this was the first
opportunity that [the CW] had to tell somebody about it.
She did not discuss it with anybody else from the time that
the incident allegedly occurred of 2:30 in the morning.
She testified that she –- previously testified that
she woke with the intention of taking the bus but that she
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accepted the offer to drive her to the DHS office from the
Calaras, and it was at that particular point that she saw
her Aunt Theresa that she began to engage in this emotional
outburst.
And the court does believe that the sufficient
foundation has been laid and that she made these utterances
while still under the stress of the excitement caused by the
event or condition.
The “excited utterance” eventually elicited from Theresa was the
following:
(Unintelligible) said that she went to sleep and that
[Calara] had come into her bedroom and had touched her under
her shirt and her kids were in the room and (unintelligible)
while she was talking she was crying so she kind of
(unintelligible) to kind of continue on but to the gist of
it she just had mentioned that [Calara] had touched her
while she was (unintelligible) –- when she was sleeping.
3. Testimony of Officer Enrico Domingo
The State then called HPD Officer Enrico Domingo, who
testified that the CW made a walk-in complaint, made a statement,
and identified Calara as the person who touched her.
4. Testimony of Detective Fred Denault
The State then called Detective Fred Denault, who testified
that he interviewed the CW and showed her a photographic line-up,
from which she picked out Calara as the person who touched her.
Then the following exchange occurred with regard to “probable
cause” for arresting Calara:
Q [The State]: So after you conducted the lineup, did you
have probable cause to enri –- arrest Enrico Calara for
misdemeanor sexual assault?
A [Denault]: Yes.
Q: And why is that?
A: Well, based on the --
[Defense counsel]: Objection, Your Honor. Um, lack of
foundation and irrelevant.
The court: I’ll overrule the objection. You may proceed.
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Q [The State]: So after you conducted the photo lineup, did
you have probable cause to arrest Enrico Calara for
misdemeanor sexual assault?
A: Yes.
Q: And why?
A: Based on the complaint written by the complaining
witness which included the offenses of sex assault in the
fourth degree which involve sexual contact to another person
without consent, and I affirmed her statement with her that
day while conducting the photographic lineup, and she
positively identified the suspect as Enrico Calara via
photograph, and that then his identity was then confirmed
regarding the possible suspect involved in this case there
was probable cause established.
Q: Thank you.
And when you say you affirmed her statement, was that
the written statement that she had given Officer Domingo?
A: Yes. I brought the report with me and then I had her
review the statement to confirm that what’s –- what she had
written in that was the events that she was alleging.
The State then rested.
5. Testimony of Debra Calara
The defense called as its first witness Debra Calara,
Calara’s wife, who testified that she and her teenage son were
both working during the early morning hours of March 13, 2007 and
were not home.
6. Testimony of Kristy Calara
The defense called as its second witness Calara’s eighteen-
year-old daughter, Kristy Calara. She testified that the night
of the alleged incident, she had gone to her room around 9:00
p.m. and was still there and awake during the early morning hours
of March 13, 2007. Her bedroom was diagonally across from the
CW’s bedroom. She testified that she, Calara, the Calaras’ nine-
year-old daughter, and the CW and her children were home, but
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Debra and the Calaras’ teenage son were at work. She testified
that she did not hear Calara’s or the CW’s doors open or the CW
scream at around 2:30 or 2:45 in the morning.
7. Testimony of Calara
The defense called Calara to testify last. Calara denied
looking the CW up and down and stating to her that he wanted to
“take her” in January and February 2007. He also testified that
he had been in his bedroom from 9:00 p.m. on March 12, 2007 to
6:00 a.m. the following morning. He testified that he stayed in
his bedroom all night and denied touching the CW’s breast.
The jury returned a guilty verdict. Calara timely appealed.
C. Appeal
On appeal, Calara raised the following points of error,
which are similar to the questions presented on certiorari:
1. The circuit court erred by precluding the defense from
introducing evidence of [the CW’s] pipe used to ingest drugs
and from cross-examining her as to her drug use to attack
her perception and recollection.
2. The circuit court erred in admitting Detective Denault’s
testimony that probable cause was established to arrest
Enrico Calara for sexual assault in the fourth degree.
3. The circuit court erred in admitting [the CW’s]
statement to Theresa Nishite as an “excited utterance.”
4. The circuit court erred in admitting evidence of Enrico
Calara’s prior statements uttered in January 200[7] and
February 200[7] to establish his intent.
5. The circuit court plainly erred in failing to provide a
limiting instruction at the time of [the CW’s] testimony
regarding Enrico Calara’s alleged prior statements and as
part of the final charge to the jury.
The ICA concluded that Calara’s appeal was “without merit”
and affirmed his judgment of conviction and probation sentence.
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State v. Calara, No. 29550 (App. Feb. 14, 2013)(SDO) at 2, 7. As
to Calara’s first point of error, the ICA concluded that the
circuit court properly ruled that “the evidence is so remote, so
tangential and so unreliable” as to whether the pipe belonged to
the CW and as to whether she smoked it around the time of the
incident that it was properly excluded and was more prejudicial
than probative. Calara, SDO at 3. Citing State v. Sabog, 108
Hawai#i 102, 109-11, 117 P.3d 834, 841-43 (App. 2005), the ICA
further held, “[T]he circuit court did not foreclose Calara from
cross-examining CW regarding possible drug use on the day of the
event.” Id. Under Sabog, reasoned the ICA, “Calara was entitled
to cross-examine CW as to whether any drug use affected her
perception and recollection of the incident.” Id.
As to Calara’s second point of error, the ICA stated,
“Calara did not object to this testimony at trial,” and “Calara
has not demonstrated that his substantial rights were affected by
Denault’s testimony.” Calara, SDO at 3-4. The ICA then
distinguished three cases cited by Calara, Batangan, 71 Haw. 552,
799 P.2d 48; Morris, 72 Haw. 527, 825 P.2d 1051; and Ryan, 112
Hawai#i 136, 144 P.3d 584, from the instant case on the basis
that “all involved witnesses offering opinions on victim-
complainants’ credibility.” Calara, SDO at 4 (footnote omitted).
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The ICA further noted, “Denault’s testimony, on the other hand,
explained the events that led to Calara’s arrest.” Id.
As to Calara’s third point of error, the ICA agreed with
Calara that the circuit court should not have admitted Theresa’s
testimony about what the CW told her of the incident as an
excited utterance, because the CW’s statements “were too remote
from the alleged sexual assault[,]” “neither spontaneous nor
impulsive[,]” and “the result of reflection.” Calara, SDO at 5.
Nevertheless, the ICA held that the circuit court’s error “was
harmless beyond a reasonable doubt because it was cumulative of
CW’s and Denault’s testimony at trial.” Id. (citation omitted).
As to Calara’s fourth point of error, the ICA held that
Calara’s January and February 2007 statements were admissible as
“relevant to understanding [Calara’s] state of mind, as well as
CW’s lack of consent,” and that their probative value was not
substantially outweighed by danger of unfair prejudice,
confusion, or misleading the jury. Calara, SDO at 6.
As to Calara’s fifth point of error, the ICA cited HRE Rule
105 to support its conclusion that Calara should have requested a
limiting instruction. Calara, SDO at 7. The ICA also held that
“Calara did not demonstrate the circuit court’s failure to sua
sponte provide a limiting instruction regarding CW’s testimony
impair[ed] his substantial rights.” Id. (citation omitted).
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III. Discussion
A. Police Testimony Regarding Probable Cause
As it forms the basis for our remand, Calara’s second
question presented is addressed first. Calara’s second question
presented is
2. Whether the ICA gravely erred in deciding the issue of
whether the circuit court erred in admitting the police
detective’s testimony that probable cause was established to
arrest Calara for sexual assault in the fourth degree under
the plain error standard of review and in failing to hold
that the testimony was irrelevant and improper.
As a preliminary matter, defense counsel did object to Denault’s
probable cause testimony, as the following transcript excerpt
demonstrates:
Q [The State]: So after you conducted the lineup, did you
have probable cause to enri – arrest Enrico Calara for
misdemeanor sexual assault?
A [Denault]: Yes.
Q: And why is that?
A: Well, based on the --
[Defense counsel]: Objection, Your Honor. Um, lack of
foundation and irrelevant.
The court: I’ll overrule the objection. You may proceed.
Q [The State]: So after you conducted the photo lineup, did
you have probable cause to arrest Enrico Calara for
misdemeanor sexual assault?
A: Yes.
The ICA should not have reviewed the admissibility of Denault’s
probable cause testimony under the plain error standard.3
3
Even if it could be said that defense counsel’s objection did not
properly preserve the error (i,e., because the basis for the objection
differed from the point of error raised on appeal), under a plain error
standard of review, Denault’s probable cause testimony nevertheless affected
Calara’s substantial rights. Ryan, 112 Hawai‘i at 141, 144 P.3d at 589 (“We
also conclude that the error in permitting the officers to testify about the
CW’s credibility in accusing [the defendant] affected [the defendant’s]
substantial rights.”) The Ryan line of cases is discussed in greater detail
further in this section.
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Further, the ICA did not adequately distinguish Batangan,
Morris, and Ryan from the instant case. The ICA stated only that
those cases “all involved witnesses offering opinions on victim-
complainants’ credibility.” Calara, SDO at 4. That distinction
is not entirely true. In those cases, the expert witnesses (or
those witnesses with an aura of expertise) did not directly
“offer[] opinions” about a victim-complainant’s credibility, yet
their testimony had that effect. Those cases are discussed in
greater detail, next.
In Batangan, 71 Haw. at 555, 799 P.2d at 50, an expert
witness (a clinical psychologist with a subspecialty in the
treatment of sexually abused children) testified that he
interviewed the complainant (a very young child) and explained
“how he evaluates whether a child is telling the truth about
being sexually assaulted.” The expert then “implicitly testified
that Complainant was believable and that she has been abused by
Defendant.” Id. (emphasis added). Even though the expert witness
“did not explicitly say that Complainant was ‘truthful’ or
‘believable,’” we held, “there is no doubt in our minds that the
jury was left with a clear indication of his conclusion that
Complainant was truthful and believable.” 71 Haw. at 563, 799
P.2d at 54.
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In Morris, 72 Haw. at 529, 825 P.2d at 1052, an expert
witness, who “had no physical evidence [of chronic sexual abuse]
whatsoever,” opined that the child complainant was chronically
sexually abused. This court held his opinion “had to have been
based on the child’s statements to others. This is one of those
cases like Batangan where, although the expert witness does not
say that the child is truthful, or that he believes the child,
the clear implication of his testimony is just that, and the
admission of that testimony in this case was reversible error.”
Id. (emphasis added).
In Ryan, this court extended Batangan’s expert witness
holding to situations in which non-experts (here, responding
police officers) implicitly concluded a complaining witness was
credible. 112 Hawai‘i at 141, 144 P.3d at 589 (“The Hawai‘i
Supreme Court’s reasons for condemning the expert’s testimony in
Batangan applies to the officers’ testimony in Ryan’s case.”)
This was because “[t]he emphasis on the officers’ training and
experience in domestic violence cases served to give the officers
an aura of being experts in evaluating the truthfulness of
statements made by an alleged victim in domestic violence cases.”
Id. Also, in Ryan (like in Batangan and Morris), the responding
officers gave no direct opinion supporting the complainant’s
credibility, yet this court held that their testimony had that
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effect. The deputy prosecutor “did not directly ask [the
responding officers] for their opinion on whether the CW had told
them the truth.” Id. Rather, the “questions posed to the
officers were couched in terms of whether they had any reason or
evidence that would cause them not to believe the CW’s
allegations against [the defendant].” Id. This court held,
“[G]iven the DPA’s repeated questioning on this subject and the
context in which the questions were asked, the only purpose
served by the questioning was to inject into the trial the
officers’ opinion that the CW’s allegations were true. . . .
Viewed in context, the effect of the officers’ testimony was the
same as a direct expression of their opinion that the CW had told
them the truth.” Id. (emphasis added).
Similarly, in Baron, 80 Haw. at 116, 905 P.2d at 622, we
concluded that the screening prosecutor’s testimony that she
decided to bring charges against the defendant meant the
screening prosecutor “impliedly found the complainant’s
allegations to be truthful.” We noted that, in a case concerning
the credibility of the complainant, “the testimony of the
[screening prosecutor] unfairly influenced the jury.” Id.
In short, Hawai‘i appellate courts have held that such
implicit conclusions about a complaining witness’s testimony
should be precluded. See Batangan, 71 Haw. at 558, 799 P.2d at
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52 (“[C]onclusory opinions that abuse did occur and that the
child victim’s report of abuse is truthful and believable is of
no assistance to the jury, and therefore, should not be admitted.
Such testimony is precluded by HRE Rule 702.”)(emphasis added);
Ryan, 112 Hawai‘i at 141, 144 P.3d at 589 (“Accordingly, under
the circumstances of this case, we hold that the family court
abused its discretion in permitting [the responding officers’]
testimony.”); Baron, 80 Haw. at 116, 905 P.2d at 622 (“[W]e hold
that the trial court abused its discretion by not precluding the
testimony of [the screening prosecutor].”).
Preclusion is necessary because this type of testimony
invades the province of the jury by usurping its power to make
credibility determinations. See Batangan, 71 Haw. at 559, 799
P.2d at 52 (“The expert’s use of words such as ‘truthful’ and
‘believable’ is not talismanic. But where the effect of the
expert’s opinion is ‘the same as directly opining on the
truthfulness of the complaining witness,’ such testimony invades
the province of the jury.”)(citation omitted; emphasis added);
Ryan, 112 Hawai‘i at 141, 144 P.3d at 589 (“We conclude that the
officers’ testimony, which was tantamount to an expression of
their opinion that the CW had been truthful in accusing [the
defendant], impermissibly invaded the province of the
jury.”)(citation omitted; emphasis added).
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Admission of this type of testimony provides grounds for
vacating a conviction. See Morris, 72 Haw. at 529, 825 P.2d at
1052 (“[T]he admission of [implicit expert testimony that the
complainant was truthful or believable] in this case was
reversible error. . . . Accordingly, we vacate the judgment below
and remand the case for a new trial.”)(emphases added); Baron, 80
Haw. at 116, 905 P.2d at 622 (“The prejudice to Appellant is
patently clear and warrants a reversal in this case. We
therefore vacate the guilty verdicts and remand the case to the
circuit court for a new trial.”)(emphases added).
In the instant appeal, like in Batangan, Morris, Ryan, and
Baron, Denault did not directly testify that he found the CW
credible, but his testimony had that effect. He testified to the
following:
Q [BY THE STATE]: So after you conducted the photo lineup,
did you have probable cause to arrest Enrico Calara for
misdemeanor sexual assault?
A [BY DENAULT]: Yes.
Q: And why?
A: Based on the complaint written by the complaining
witness which included the offenses of sex assault in the
fourth degree which involve sexual contact to another person
without consent, and I affirmed her statement with her that
day while conducting the photographic lineup, and she
positively identified the suspect as Enrico Calara via
photograph, and that then his identity was then confirmed
regarding the possible suspect involved in this case there
was probable cause established.
Q: Thank you.
And when you say you affirmed her statement, was that
the written statement that she had given Officer Domingo?
A: Yes. I brought the report with me and then I had her
review the statement to confirm that what’s – what she had
written in that was the events that she was alleging.
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Denault, a 26-year veteran of HPD assigned to the Sex Crimes
Detail, was imbued with “an aura of expertise” like the
responding officers in Ryan. Thus, when he testified that his
decision to arrest Calara was based on his assessment that the
CW’s allegations provided him with probable cause, such testimony
“was tantamount to an expression of [his] opinion that the CW had
been truthful in accusing” Calara. Ryan, 112 Hawai‘i at 141, 144
P.3d at 589.
Further, the circuit court’s contemplated cure for admitting
such testimony does not appear on the record and would not change
this result. At the hearing on the motions in limine, the
circuit court explained that it would allow the testimony under
the following circumstances:
With regard to legally conclusive language as to HPD
saying all elements of the crime were met, the court is
going to grant the [defense’s] request [to exclude legally
conclusive language]. However, the court is going to allow
the prosecution to ask the question whether or not in the
police officer’s mind probable cause was met for an arrest
to be made.
And the reason for the court’s ruling is to avoid any
confusion in the jury’s mind as to whether or not the
standard of conviction is somehow less than proof beyond a
reasonable doubt, which includes proving all the elements of
the offense and not the standard for the arrest of any
individual.
The jury was not provided with any instruction regarding the
difference between probable cause and proof beyond a reasonable
doubt. Therefore, as Calara argued, in addition to Denault’s
testimony invading the province of the jury by bolstering the
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CW’s credibility, there was also a possibility that the jury
overly weighted the probable cause testimony in its reasonable
doubt determination, and this may have contributed to Calara’s
conviction.
The ICA also concluded that Denault’s testimony merely
“explained the events that led to Calara’s arrest.” Calara, SDO
at 4. However, this court previously rejected a similar argument
in Ryan. In that case, the State argued that the responding
officers’ opinions “were directed more toward the completeness of
the police investigation.” 112 Hawai‘i at 141, 144 P.3d at 589.
We disagreed, because “[t]he defense did not attack the actions
of [the responding officers] or the thoroughness of the HPD’s
investigation.” Id. Similarly, in this case, Calara never
attacked the probable cause determination. We concluded in Ryan,
“The context in which the officers were questioned convinces us
that the officers’ testimony was directed at whether they
believed the CW was truthful in her allegations and not at the
thoroughness of their investigation.” Id. So, too, was
Denault’s testimony that the CW’s statement provided him with
probable cause to arrest Calara: his statement implied he
believed the CW’s allegations.
In short, Denault’s probable cause testimony should have
been precluded under Batangan, Morris, Ryan, and Baron. The
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admission of the probable cause testimony was an abuse of
discretion. Therefore, we vacate the ICA’s judgment on appeal,
vacate the circuit court’s judgment of conviction and probation
sentence, and remand Calara’s case to the circuit court for
retrial.
We address the remaining issues raised by Calara to the
extent necessary to resolve this appeal and to assist the circuit
court on retrial.
B. Preclusion of Evidence of Drug Pipe
On certiorari, Calara’s first question presented is
1. Whether the ICA gravely erred in holding that Calara’s
right to present a complete defense was not violated when
the circuit court precluded him from introducing evidence of
the complainant’s drug pipe and by cross-examining the
complain[an]t about her drug use for the purposes of
attacking her perception and recollection.
In his Notice of Intent to Use Evidence, Calara signaled his
intent to introduce at trial as “evidence of other crimes,
wrongs, or acts involving” the CW a pipe found in the room
occupied by the CW by Mrs. Calara. His counsel requested a HRE
Rule 104 hearing as follows:
At the 104 hearing I’d be prepared to present my client’s
wife as a witness to testify exactly where she found [the
pipe], in what belongings, because the only person using
that room for four months was the complainant. No one used
the room after she left until they packed up her things.
And it was found in her things. . . . It’s clear [the pipe]
belonged to her. At -- I think a 104 hearing is at least
necessary to clarify that she was not under the influence --
or did not use that item on the date of this incident and
affecting her perception.
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The circuit court denied the request as follows:
The court’s ruling is that the 104 hearing is not going to
be able to establish who used the pipe, when it was used,
and therefore it has no relevance to the case. And the fact
that it involves marijuana, or at least -- I don’t know what
it involves, what kind of drug. We don’t know. Only that
it smelled funny -- is more prejudicial than probative. I
don’t know what smelled funny means. . . . And a 104
hearing is not going to cure [the problem of what substance
was in the pipe] because the HPD did not do a test on the
pipe.
The circuit court erred in deciding that a HRE Rule 104
hearing was not necessary. HRE Rule 104 provides, in relevant
part:
Preliminary questions.
(a) Questions of admissibility generally. Preliminary
questions concerning the qualification of a person to be a
witness, the existence of a privilege, or the admissibility
of evidence shall be determined by the court, subject to the
provisions of subsection (b). In making its determination
the court is not bound by the rules of evidence except those
with respect to privileges.
(b) Relevancy conditioned on fact. When the relevancy of
evidence depends upon the fulfillment of a condition of
fact, the court shall admit it upon, or subject to, the
introduction of evidence sufficient to support a finding of
the fulfillment of the condition. . . .
The circuit court focused solely on the pipe evidence in denying
the HRE Rule 104 hearing, finding the evidence inadmissible as
irrelevant because the pipe had not been tested. The effect of
the denial of the HRE Rule 104 hearing was broader, however, in
that it precluded any evidence of drug use as potentially
relevant to the CW’s perception of the alleged event. As such,
the circuit court’s decision was inconsistent with Sabog, 108
Hawai#i at 111, 117 P.3d at 843, which held a defendant is
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entitled to cross-examine a witness concerning the witness’s
“drug use and addiction at or near the time of the incident to
the extent that it affected [the witness’s] perception or
recollection of the alleged event. . . .” A HRE Rule 104 hearing
would have allowed the circuit court to determine whether there
was any evidence relevant to the issue of the CW’s purported drug
use as affecting her perception.
C. Excited Utterance
On certiorari, Calara’s third question presented is
3. Whether the ICA gravely erred in concluding that the
admission of CW’s statement to Theresa Nishite as an
“excited utterance” was harmless beyond a reasonable doubt.
We agree with the ICA that the CW’s statement to Theresa Nishite
was not an excited utterance and should not have been admitted
into evidence. Calara, SDO at 5. As we are remanding this case
for retrial based on the circuit court’s admission of Denault’s
probable cause testimony, we need not, and do not, reach the
issue of whether the ICA gravely erred in holding that the
admission of the statement as an excited utterance was harmless
beyond a reasonable doubt.
D. January and February 2007 Statements
On certiorari, Calara’s fourth question presented is
4. Whether the ICA gravely erred in concluding that the
evidence of Calara’s prior statements uttered in January
200[7] and February 200[7] to establish his intent were
relevant.
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The two prior statements Calara uttered in January and February
2007 were that he wanted to “take” the CW, statements which the
CW believed indicated Calara’s sexual interest in her. Via
motion in limine, Calara sought to have the statements excluded
as “unfairly prejudicial under HRE 404 and irrelevant under HRE
403. . . .” The circuit court denied the motion in limine as
follows:
That the two events in question in January and
February 2007, two prior events in question, [are] fairly
close in time to the date of the alleged offense on March
13, 2007.
And in the court’s view what it goes to show is the
state of mind of the defendant at the time. It is apparent
from these statements that [the CW] became the object of
[Calara’s] desire, and when you –- sexual desire,
inappropriate as it was. The fact that she rebuffed him,
again, I would agree goes to the issue of lack of consent.
And the intent I think is also demonstrated by the
proffer that was made, and the court does agree that the
prejudice –- prejudice to the defense and to the defendant
is low. It doesn’t mean that he assaulted her prior to the
events of March 13, 2007, only what his state of mind was,
what his intent [was].
I don’t think it’s a question so much of modus
operandi as much as it is lack of consent, state of mind,
and the fact that it shows that he had some sexual interest
perhaps in the complaining witness.
In short, the circuit court admitted the statements under HRE
Rule 404(b) for the purpose of showing Calara’s state of mind or
intent, and the CW’s lack of consent. None of these purposes
supported the admission of the statements under HRE Rule 404(b),
however. Instead, the statements, at their core, tended to prove
the character of Calara in order to show action in conformity
therewith, and should have been excluded.
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HRE Rule 404(b) states, in relevant part
Other crimes, wrongs, or acts. Evidence of other crimes,
wrongs, or acts is not admissible to prove the character of
a person in order to show action in conformity therewith.
It may, however, be admissible where such evidence is
probative of another fact that is of consequence to the
determination of the action, such as proof of motive,
opportunity, intent, preparation, plan, knowledge, identity,
modus operandi, or absence of mistake or accident. . . .
“[W]hen evidence of other crimes, wrongs, and acts is offered by
the prosecution, the problem for the trial court is one ‘of
classifying and then balancing[, if necessary]. . . the
prejudicial impact of the evidence [with] its probative worth.”
State v. Castro, 69 Haw. 633, 644, 756 P.2d 1033, 1041
(1988)(first set of brackets in original; second set of brackets
added). “If its purpose is only ‘to show some propensity to
commit the crime at trial, there is no room for ad hoc balancing.
The evidence is then unequivocally inadmissible[.]’” Id. See
also Addison M. Bowman, Hawai#i Rules of Evidence Manual (2012-
2013) at 4-49 (“[I]f a fact of consequence other than character
cannot be identified, then the evidence has no legitimate
probative value.”)
In this case, the statements were not probative of any other
fact that was of consequence to Calara’s case. Specifically,
they were not probative of Calara’s state of mind or intent, or
the CW’s lack of consent. Reviewing the record, it is clear that
Calara’s defense was he did not do the act; he testified that he
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remained in his bedroom all night and did not enter the CW’s
bedroom, where she alleged the sexual assault took place. The
CW’s consent was never at issue. Therefore, the circuit court
abused its discretion in admitting the January and February 2007
statements to show the CW’s lack of consent.
The district court also abused its discretion in admitting
the January and February 2007 statements to show Calara’s state
of mind or intent. Intent is “the state of mind with which an
act is done. . . .” State v. Torres, 85 Hawai#i 417, 422, 945
P.2d 849, 854 (App. 1997)(citation omitted). “Because mens rea
is an element of the prosecution’s case-in-chief, in most
criminal cases, the intent inferences of rule 404(b) require
analytical rigor.” Bowman, Hawai#i Rules of Evidence Manual
(2012-2013) at 4-53. “Without the necessity that arises when a
mental defense is interposed to a criminal charge, admission of
‘other crimes’ to prove intent is strongly suspect because
intent, although elemental, is subsumed within the charged acts
and typically stands or falls with the proof of them.” Id.
In this case, Calara did not put his intent in issue in the
way a defendant arguing that a touching was due to mistake,
accident, or some other innocent explanation would. Again,
Calara’s defense was that he was not in the CW’s room, so the
touching simply did not occur. Thus, Calara’s case can be
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distinguished from two factually similar cases in which the
defendant’s prior sexually inappropriate comments were properly
admitted under HRE Rule 404(b) to show intent: Torres, 85
Hawai#i 417, 945 P.2d 849, and State v. Mars, 116 Hawai#i 125, 170
P.3d 861 (App. 2007).
In Torres, 85 Hawai#i at 418-19, 945 P.2d at 850-51, the
defendant was convicted of sexual assault in the first degree for
having inserted his finger into his nine-year-old niece’s vagina
while he was bathing her. On appeal, the defendant claimed that
the circuit court abused its discretion in admitting evidence
regarding four prior bad acts, one of which was evidence that the
defendant told the complainant “to find a place to make love[.]”
85 Hawai#i at 422, 945 P.2d at 854 (brackets in original). The
ICA concluded that the statement was relevant and probative to
show the defendant’s motive and intent to later sexually assault
the complainant in the bathtub. Id. The defendant had testified
at trial that “he ‘had no bad intentions’ when he agreed to bathe
Complainant and wash her vagina. He also vehemently denied ever
digitally penetrating her vagina.” Id. The complainant, on the
other hand, testified that when she and the defendant were alone
at home, the defendant told her to put her leg up in the bath,
inserted his finger in her vagina, at which point, the
Complainant said, “Ouch,” and the defendant told her not to tell
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anybody. 85 Hawai#i at 419-20, 945 P.2d at 851-52. The ICA
stated, “In this case, it was undisputed that Defendant washed
Complainant’s vagina. However, there was a dispute regarding who
prompted the bath and what occurred during the bath.
Consequently, evidence of why Defendant bathed Complainant--
i.e., Defendant’s motive, purpose, and intent for washing
Complainant’s vagina-- were undoubtedly relevant to prove a fact
of consequence, that Defendant “knowingly subjected [Complainant]
to sexual penetration[.]” 85 Hawai#i at 422, 945 P.2d at 854
(emphasis in original).
In Mars, 116 Hawai#i at 128, 170 P.3d at 864, a defendant
was convicted of three counts of sexual assault in the first
degree for having had oral and anal sex with a fifteen-year-old
boy while both were in a bathroom. On appeal, the defendant
argued that the circuit court abused its discretion in admitting
the following prior statements the defendant made to the fifteen-
year-old boy: (1) that the boy should “pull up [his] pants and
not show [his] underwear because there were ‘perverts’ in the
area”; (2) that “he should be careful about his underwear because
the intermediate school students ‘liked them’”; (3) that the boy
was “largely hung and a lot of people would like that”; and (4)
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that the boy “had too much hair down there.” 116 Hawai#i at 129,
170 P.3d at 865.
At trial, the fifteen-year-old boy testified that the
defendant entered the bathroom while the boy was in the Jacuzzi,
indicated that he wanted to have sex with the boy (as the two had
done before), and the boy complied. 116 Hawai#i at 130, 170 P.3d
at 866. The defendant, on the other hand, testified that he had
the runs and needed to use the nearest bathroom (the one that,
unbeknownst to the defendant, was occupied by the boy at the
time). 116 Hawai#i at 131, 170 P.3d at 867. The defendant
testified that he entered the unlocked bathroom, sat on the
toilet, then saw the boy’s head peek out of the Jacuzzi. Id.
The defendant denied sexually assaulting the fifteen-year-old
boy. Id. The ICA concluded that the reasoning in Torres was
directly applicable to the defendant’s case. 116 Hawai#i at 141,
170 P.3d at 877. It held the defendant’s comments were relevant
to show the defendant’s motive, purpose, and intent when he
joined the fifteen-year-old boy in the bathroom when the assaults
took place, and were thus admissible under HRE Rule 404(b). Id.
This case is distinguishable from Torres and Mars. In
Torres and Mars, both defendants denied sexually assaulting the
complaining witnesses, and both defendants offered explanations
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for why they were in the bathroom with the complaining witnesses.
In doing so, they put at issue their motive and intent for being
in the location where the sexual assaults took place. Therefore,
prior inappropriate sexual statements made by both defendants to
the minor complaining witnesses were admissible under HRE Rule
404(b) as “probative of another fact that is of consequence to
the determination of the action,” i.e., countering the
defendants’ innocent explanations as to why they were alone with
their bathing and vulnerable minor complaining witnesses, and
tending to show that they knowingly touched the complaining
witnesses.
No similar circumstances exist in this case, where Calara
did not concede that he was in the CW’s bedroom for some innocent
reason when the alleged touching occurred, such that evidence of
the prior statements would be probative of a fact of consequence,
i.e., the state of mind or intent tending to explain his presence
in her bedroom and tending to explain the touching. Therefore,
the circuit court abused its discretion in admitting the January
and February 2007 statements under HRE Rule 404(b) as bearing on
Calara’s state of mind or intent.
E. The Absence of a Limiting Instruction
On certiorari, Calara’s fifth question presented is
5. Whether the ICA gravely erred in holding that the
circuit court’s failure to provide a limiting instruction at
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the time of CW’s testimony regarding Calara’s alleged prior
statements and as part of the final charge to the jury was
not plain error.
Our holding that the January and February 2007 statements should
not have been admitted under HRE Rule 404(b) obviates the need to
reach the issue of whether the circuit court should have issued a
limiting instruction to the jury as to the purposes for which
those statements were to be used.
IV. Conclusion
We hold (1) that the circuit court abused its discretion by
admitting the testimony of the police detective that probable
cause existed for arresting Calara because such testimony was
inadmissible under Batangan, 71 Haw. 552, 799 P.2d 48; Morris, 72
Haw. 527, 825 P.2d 1051; Ryan, 112 Hawai#i 136, 144 P.3d 584; and
Baron, 80 Hawai#i 107, 905 P.2d 613; (2) that the circuit court
should have conducted a HRE Rule 104 hearing to determine whether
there was admissible evidence concerning the CW’s alleged drug
use and its effect upon her perception; (3) that the circuit
court should have excluded Calara’s earlier statements that he
wanted to “take” the complaining witness because the statements
were, at their core, character evidence used to show action in
conformity therewith, and were not admissible under an HRE Rule
404(b) exception; as such, (4) it is not necessary to reach the
issue of whether a limiting instruction should have accompanied
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the admission of the statements; and (5) because we remand this
case for a new trial, we need not, and do not, reach the issue of
whether the ICA gravely erred in holding that the circuit court’s
error in admitting the CW’s statements to her aunt as an excited
utterance were harmless beyond a reasonable doubt. We vacate the
ICA’s Judgment on Appeal, vacate the circuit court’s judgment of
conviction and probation sentence, and remand this case to the
circuit court for retrial.
Jason Z. Say /s/ Simeon R. Acoba, Jr.
for petitioner
/s/ Sabrina S. McKenna
Stephen K. Tsushima
for respondent /s/ Richard W. Pollack
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