State v. Kony.

***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***

Electronically Filed
Supreme Court
SCWC-12-0001114
04-MAY-2016
08:46 AM

IN THE SUPREME COURT OF THE STATE OF HAWAIʻI

---o0o---

STATE OF HAWAIʻI,
Respondent/Plaintiff-Appellee,

vs.

LAST KONY,
Petitioner/Defendant-Appellant.

SCWC-12-0001114

CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-12-0001114; CR. NO. 11-1-1294)

MAY 4, 2016

McKENNA, POLLACK, AND WILSON, JJ.,
AND RECKTENWALD, C.J., CONCURRING, WITH WHOM NAKAYAMA, J., JOINS

OPINION OF THE COURT BY POLLACK, J.

This case involves the admissibility of expert

testimony in child sexual abuse cases. Last Kony challenges his

convictions of sexual assault of a minor on the grounds that

expert testimony regarding child sexual abuse is no longer

relevant, the statistical data presented during his trial was
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misleading and highly prejudicial, and the evidence presented

during his trial improperly profiled him as a sex offender. We

affirm the trial court’s ruling as to the relevancy of the

expert testimony in this case regarding the unique

characteristics of child sexual abuse victims admitted to assist

the jury “to comprehend something not commonly known or

understood”--delayed reporting. State v. Batangan, 71 Haw. 552,

557-58, 799 P.2d 48, 52-54 (1990). Additionally, although we

conclude that Kony did not properly preserve for appeal his

argument that the expert testimony presented in this case was

unfairly prejudicial or misleading, we provide guidance in light

of the Intermediate Court of Appeals’ analysis of this issue.

I. Background

Kony was charged in the Circuit Court of the First

Circuit (circuit court) with sexual assault of a minor. The

charges consisted of three counts of sexual assault in the first

degree and six counts of sexual assault in the third degree.1

1
Sexual assault in the first degree is a violation of HRS § 707-
730(1)(c) (2008), which states:

(1) A person commits the offense of sexual assault in the
first degree if:

. . . .

(c) The person knowingly engages in sexual
penetration with a person who is at least fourteen years
old but less than sixteen years old; provided that:

(continued . . .)

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The complaining witness (Minor) lived in the same household with

Kony, along with six family members and one other person. Kony

was the boyfriend of Minor’s half-sister and father to two

children in the home.2 Minor was fifteen years of age at the

time of the alleged sexual assaults.

A. Pre-trial motion to exclude expert testimony

Prior to the start of trial, Kony filed a motion in

limine to exclude the expert testimony of Dr. Alexander Jay

Bivens. Kony asserted that Dr. Bivens’ testimony would be

irrelevant and that its probative value would be substantially

(continued . . .)
(i) The person is not less than five years older
than the minor; and

(ii) The person is not legally married to the minor
. . . .

Sexual assault in the third degree is a violation of HRS
§ 707-732(1)(c) (2009), which provides:

(1) A person commits the offense of sexual assault in the
third degree if:

. . . .

(c) The person knowingly engages in sexual contact
with a person who is at least fourteen years old but
less than sixteen years old; provided that:

(i) The person is not less than five years older
than the minor; and

(ii) The person is not legally married to the minor
. . . .
2
Minor explained that the family considered Kony and her half-
sister married, although the two were not legally married.

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outweighed by the danger of unfair prejudice, specifically

Kony’s propensity to commit the crime for which he was charged.

At the hearing on the motion in limine,3 the State

explained that the reporting of the abuse in this case was

delayed and that Dr. Bivens would provide expert testimony on

why delayed reporting commonly occurs in sexual abuse cases.

The State expressed that its questioning of Dr. Bivens would be

limited to what factors could hypothetically lead to delayed

reporting. The defense expressed a concern that Dr. Bivens

would testify about inaccuracies of a witness’ testimony; the

Court responded that such testimony would not be allowed:

THE COURT: . . . I’m not going to let the State get into
that. I mean, he won’t have heard the testimony. So, you
know, what’s his testimony on that going to be?
Hypothetically I’ve had cases before where they, you know,
they testified this way. I mean, I’m going to have to go
question by question on that one. I take this motion to be
though basically to preclude him from taking the stand,
preclude the State from putting him on.

[Defense Counsel]: That’s correct, your honor. Just,
you know, basically he’s, you know, from my view, not
related to this case and therefore irrevelant [sic].

The circuit court ruled that it would allow Dr. Bivens to

testify, but the court reiterated that if defense counsel

thought any of the State’s questions were objectionable,

3
The Honorable Glenn J. Kim presided over the motion and trial
proceedings in this case.

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the court would rule “question by question” on any

objections.

I’m going to allow the State to call him on this issue of
delayed reporting. And obviously they’re going to have to
qualify him as an expert and then -- but that’s the offer
of proof and that’s as far as I’m concerned what I’m going
to allow as far as the testimony, and aside from that,
we’re just going to go question by question. [Prosecutor]
will ask the question. If you think it’s objectionable,
you go ahead and object, [Defense Counsel], and I’ll rule
question by question basically.

B. Testimony adduced by State

At trial, Minor testified that from May to August

2011, Kony sexually assaulted her three times in her room at the

shared home. The first incident occurred on the morning of her

fifteenth birthday on May 6, 2011, just after midnight. Minor

testified that she was asleep in her bedroom with her door

locked but the lock could be picked with a fingernail. Minor

knew it was Kony because he told her “Don’t worry, be quiet, it

was just him,” and she also recognized his figure and voice.

Minor testified that the second incident occurred approximately

two weeks later. Kony came in her bedroom, and he told her that

it was him again. During the second incident, Kony told her

that there would be problems if her family found out about his

“coming in her room.” The last incident occurred a few days

before Minor reported the events to her mother on August 12,

2011.

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Minor indicated that Kony was not in her room for more

than five minutes during any of the incidents. Minor testified

that she did not scream during the incidents because she “was

shocked it happened,” but she told Kony to “get out.” She also

testified that she was worried about her “family being messed

up,” she felt bad for her sister, and she was scared.

Minor testified that the first person she told about

the incidents was her cousin who she told “[w]hile it was

happening.” Cousin explained that she and Minor were “very

close” and that Minor “didn’t know what to do and what to say to

her family because [Minor] said that’s her sister’s boyfriend.”

Cousin testified that Minor told her the rape happened a single

time and that Kony “tried to do other things like touch her”

several other times.

Minor explained that she did not tell her parents

or other family members because she was not “close” to any

of them. Minor testified that she did not tell her mother

until an argument occurred between them. At that time,

Minor’s mother was accusing her of being “bad” and asked

her why she could not be more like her sisters, at which

point Minor told her mother about the incidents.

Minor’s mother testified that she confronted

Kony, who stated that he was “sorry and he didn’t know what

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got into him that made him do that.” Kony did not state

what he did, but he did tell the mother that he went inside

Minor’s room and “he was sorry he did it.”

After the confrontation, Kony moved out of the home.

Weeks later, Minor’s father was informed, and he reported

Minor’s allegations to the police. Father also confronted Kony,

and Father testified that during the confrontation, Kony

apologized for being inside Minor’s room.

C. Dr. Bivens’ testimony

Dr. Bivens was qualified, without objection, as an

expert for the State in clinical psychology with an emphasis on

the dynamics of child sexual abuse. Dr. Bivens testified that

he did not have any information about the case. Dr. Bivens

explained that he understood he was testifying in order to

provide information to the jury about the nature of child sexual

abuse to assist the jury in making their own determination about

the facts of the case.

The State asked Dr. Bivens where child sexual abuse

usually occurs. Dr. Bivens answered in terms of whether the

offender was an “incest offender” or an offender outside the

family:

[Dr. Bivens:] [T]here have been a couple of -- a couple
of significant studies. And when I say “significant,” I
mean to say these are studies that are regarded as being
done very well on this topic. And what I found was that a
hundred percent of incest offenders, offenders offending

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against family members, committed their -- committed
offenses in their own home. And what that means is that a
hundred percent of incest victims experience sexual abuse
within their own home.

When it’s outside the family, about 50 percent of --
about 50 percent, a little over 50 percent, 54 percent of
offenses occur in the molester’s home, and, um, a little
less than 50 percent, 46 percent say, occur in the child’s
home. So as strangers that may seem to the layperson a lot
of times it’s happening either in the child’s home or in
the molester’s home.

[Prosecutor:] Well, a lot of times? It sounds like a
hundred percent of the time it’s in one of those two
places.

[Dr. Bivens:] Well, it sounds that way. Now I don’t
mean to be misleading. It can also happen in a car or in
some other isolated place. But what we are talking about
is that, um -- is that incest molesters virtually always
seem to commit some molestation in their own home, and they
always seem -- and so in other words -- how can I put this
-- it could happen elsewhere also, but in their own home
seems to come up virtually every time we look at it for the
victims and for the molesters as described.

Dr. Bivens explained how percentages “work” and their

relative reliability:

Well, there are error rates associated with percentages
always. And there are ways that researchers look at this.
Um, there are these statistics called “standard deviations”
and things like that. The studies that I’ll be talking
about today have enough individuals included in the study
so that the percentages are relatively reliable.
Percentages should only be used to be given a general idea
of, you know, how the phenomenon most often occurs.
Something like that.

Dr. Bivens then provided percentages as to the nature

of preexisting relationships between a sexually abused child and

their abuser, including percentages of cases in Hawaiʻi where the

offender had a family relationship with the victim:

Right. Well, eighty -- consistently across numerous
studies -- I don’t even know how many studies -- 85 percent
of sexual abuse victims have a pre-existing non-sexual

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relationship with their molester. Um, this doesn’t have to
be a family relationship.

In Hawaii the cases that we get reported to us we’re
looking at about 50 per -- a little over 50 percent do have
a family relationship. Um, and if it’s not a family
relationship, um, it -- it is a pre-existing relationship
of some kind between the child and the molester.

And beyond that a recent study showed that about 70
percent of molesters had a relationship with the child’s
parents, so you get a sense of the significance that the
person -- the significant role that the individual plays in
the child’s life prior to any molestation happening.

Dr. Bivens also explained that the relationship is considered

incest as long as the offender is a family member living in the

child’s home. The State inquired about the gender of abusers,

and Dr. Bivens gave the following answer:

Unfortunately over 95 percent of sexual crimes are
committed by males. And let me just be more specific. Sex
crimes against children are committed by males. It’s a
pretty rare phenomenon for females to do it. And when they
do it, their victims are usually older. So if you’re
talking about younger victims, it’s even higher than 95
percent. It just seems to be a male problem. Perpetrators
are typically male.

Dr. Bivens then discussed reporting of the sexual

abuse, opining that “delayed disclosure is the rule, not the

exception.” He explained that large scale studies have found

that two thirds of adults who say that they were sexually

molested as children never told anyone before the age of

eighteen. Dr. Bivens identified mothers and close friends as

the persons sexually abused children most often tell and

provided percentages to substantiate this assertion:

[T]he most typical person that a child will tell is their
mother. Okay. The next most common -- so about 33 percent
of children who tell will tell their mother. About a same

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number of children, 32 percent or so, will tell a close
friend and usually in their teenage years when they start
feeling like they have more of a voice. So as their age
increases, their likelihood of telling increases because
they feel like they’re able to talk better, they’re able to
make their points a little more forcefully.

The State next asked whether the scientific literature

that Dr. Bivens had been discussing offered any insights into

what causes delayed reporting. The defense objected to Dr.

Bivens’ response to this question on relevancy grounds,

apparently because the answer related to children less than ten

years old. Dr. Bivens was allowed to complete his answer to the

question, but the court instructed defense counsel to “[k]eep

objecting as to questions that come if you feel it’s

appropriate.” Dr. Bivens continued his answer, referring to a

study involving two groups of children--five-year-olds and

seven-year-olds. Defense counsel again objected on relevancy

grounds, and the court stated that if Dr. Bivens continued to

discuss five to seven year-olds, it would “start sustaining

objections.” The prosecutor then sought permission from the

court to lead the witness toward certain age groups” to save

time. The court declined to grant pre-permission for any

particular question, again stating that if defense counsel

objected, the court would rule.

Dr. Bivens explained that older children, particularly

teenage girls, appeared more reluctant to reveal information

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about sexual assaults. He then provided exact percentages as to

the reasons given by women who reported being sexually abused as

children for their delay in reporting:

[A]bout 29 percent said they expected not to be
believed. About 25 percent said they were embarrassed. A
similar number, 24 percent, said they didn’t want to upset
anyone or cause chaos in their family.

Eighteen percent said they didn’t want to harm the
abuser because they had a relationship with the abuser and
they didn’t want to get the abuser in trouble. So that
gives you kind of an interesting picture of what can go on
for sexually abused females.

Dr. Bivens next discussed the dynamics of child sex

abuse and how it relates to delayed reporting. The State asked

whether multiple incidents of abuse over time affects delayed

reporting. Dr. Bivens responded that multiple incidents of

abuse “implies delayed reporting.” Dr. Bivens explained that

children feel guilty for not reporting earlier and worry that

they are going to be blamed for not reporting.

Dr. Bivens also identified the type of circumstances

where victims of abuse will finally report the molestation by

the offender. He explained that “some of the classic ones are

like an anger-inducing incident where the child is being held

accountable for being negative or bad or hypocritical.” Dr.

Bivens described how the victim might feel they have nothing to

lose by telling the truth:

There’s something that’s got them so upset that maybe
they’re already in so much trouble, they don’t feel like
they have anything else to lose by telling the truth, um,
and so they’re not so afraid of the consequences. Um,

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sometimes the proximity of the offender. If the offender
has left but then is now coming back or if the child --
yeah, so if the offender is then out of the house and is
then coming back, the child may disclose to tell in order
to protect themselves.

The court, sua sponte, intervened striking from the record what

Dr. Bivens said about the child telling the truth and instructed

the jury to disregard it.4

D. Testimony adduced by Kony

Kony’s girlfriend, Minor’s half-sister, testified that

she and Kony lived with Kony’s sister at a separate home, they

never lived at Minor’s home, and Kony never stayed the night at

Minor’s home. Kony’s girlfriend also testified that Kony never

apologized to Minor’s parents for anything he did to Minor, and

she denied that Kony was confronted by Minor’s parents.

A co-worker of Kony testified that Kony worked a 1:00

AM to 8:00 AM shift at a cleaning company from May 31, 2011, to

September, 2011. The co-worker testified that Kony arrived to

work on the Honolulu city bus. Kony stipulated to the entry of

his record cards into evidence, showing the hours and days he

was working. Kony’s record cards indicate that Kony was not

4
Dr. Bivens also described how sexual abuse affects memory. He
discussed the effects of trauma on a victim’s memory citing a study involving
children in car accidents. Defense counsel objected to this testimony as
irrelevant, and the court sustained the objection.

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scheduled for work on nine days in June, seven days in July, and

nine days in August, 2011. Kony did not testify.

Kony was found guilty and sentenced to terms of

incarceration of twenty years for three counts of sexual assault

in the first degree and five years for three counts of sexual

assault in the third degree, with the terms to run concurrently.5

Kony filed an appeal to the Intermediate Court of Appeals (ICA)

from the November 28, 2012 Judgment of Conviction and Sentence.

E. ICA Proceedings

Kony’s opening brief, raised a single point of error--

that the circuit court erred in allowing Dr. Bivens’ testimony.

Kony argued that Dr. Bivens’ testimony was not of assistance to

the jury because the commonness of delayed disclosure of child

victims no longer constituted specialized knowledge outside the

common experience of the jury. Kony also asserted that Dr.

Bivens’ testimony relied on statistics in a manner that was

misleading and highly prejudicial. Kony further contended that

the statistical and profile evidence cited by Dr. Bivens vouched

for Minor’s credibility.

In its answering brief, the State argued that Dr.

Bivens’ testimony was relevant to assist the jury in

5
At the close of the prosecution’s case, the trial court granted
Kony’s motion for judgment of acquittal as to Counts 2, 5, and 8.

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understanding behaviors and phenomena associated with sexual

abuse. The State contended Kony was not prejudiced by Dr.

Bivens’ testimony and maintained that Kony did not object to the

testimony on the grounds that it was profile evidence or that

the doctor’s use of statistics was highly prejudicial. The

State asserted that it did not misinterpret any statistics

mentioned by Dr. Bivens or improperly suggest during closing

argument that Kony was guilty because he matched a profile of

individuals who sexually assault children.

In reply to the State, Kony argued that he did not

waive his challenge to Dr. Bivens’ testimony. Kony contended

that he argued in his motion in limine that Dr. Bivens’

testimony was not relevant and that its minimal probative value

was outweighed by its prejudicial effect. Kony maintained that

he was not required to continuously object throughout the trial

after the court had definitively ruled to allow Dr. Bivens’

testimony because the court’s invitation for the defense to

object was only if defense counsel believed that the State was

exceeding the scope of the court’s ruling.

The ICA issued a Summary Disposition Order (SDO)

affirming the circuit court’s judgment of conviction. The ICA

rejected Kony’s argument that expert testimony regarding delayed

reporting is no longer helpful to juries. The ICA also assumed

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that Kony preserved his objections to Dr. Bivens’ testimony for

improper bolstering of the complaining witnesses’ credibility

and profiling of Kony as a sex offender and held that those

arguments were meritless. The ICA noted that Dr. Bivens

testified that error rates are always associated with

percentages and that Kony acknowledged that Dr. Bivens did not

have any information about the case.

Judge Reifurth concurred in the result, but he wrote

separately to clarify his understanding of the Hawaiʻi Rules of

Evidence (HRE) Rule 403 analysis that would apply--had Kony

properly raised his objections that elements of Dr. Bivens’

testimony were misleading and unduly prejudicial. Judge

Reifurth explained that the potential prejudice of the evidence

should be assessed against its probative value under HRE Rule

403. Judge Reifurth stated that he would have resolved the

issue of prejudice, arising from expert testimony regarding the

typical characteristics and behaviors of child sexual abusers,

as waived because Kony failed to object at trial to any

testimony of Dr. Bivens as prejudicial.

II. Standards of Review

We apply the right/wrong standard in reviewing

challenges to a court’s relevancy decision under HRE Rules 703,

401, and 402. State v. Vliet, 95 Hawaiʻi 94, 107, 19 P.3d 42, 55

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(2001). “Evidentiary decisions based on HRE Rule 403, which

require a ‘judgment call’ on the part of the trial court, are

reviewed for an abuse of discretion.” State v. Richie, 88

Hawaiʻi 19, 37, 960 P.2d 1227, 1245 (1998) (footnote omitted)

(quoting State v. Arceo, 84 Hawaiʻi 1, 11, 928 P.2d 843, 853

(1996)). “An abuse of discretion occurs when the decisionmaker

‘exceeds the bounds of reason or disregards rules or principles

of law or practice to the substantial detriment of a party.’”

Vliet, 95 Hawaiʻi at 107, 19 P.3d at 55 (quoting In re Water Use

Permit Applications, 94 Hawaiʻi 97, 183, 9 P.3d 409, 495 (2000)).

III. Discussion

Kony contends that the ICA gravely erred in holding

that the circuit court did not err in allowing the testimony of

Dr. Bivens as an expert in clinical psychology and the dynamics

of child sexual abuse and permitting testimony on the issue of

delayed reporting. Kony maintains that the testimony “was not

relevant, not proper expert testimony, improperly profiled

[Kony] as a sex offender and relied on statistical data that was

misleading and highly prejudicial.”

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A. Kony’s Relevancy Objection to Dr. Bivens’ Testimony

The admission of expert testimony is initially

governed by HRE Rule 702.6 Under HRE Rule 702, an expert witness

may testify in the form of an opinion or otherwise if

“scientific, technical, or other specialized knowledge will

assist the trier of fact to understand the evidence or to

determine a fact in issue.” HRE Rule 702 (1993). One of the

“touchstones of admissibility for expert testimony under HRE

Rule 702” is relevance.7 Vliet, 95 Hawaiʻi at 106, 19 P.3d at

54; see also State v. Batangan, 71 Haw. 552, 562, 799 P.2d 48,

54 (1990). “In determining the relevancy issue, the trial

courts’ function is akin to the relevancy analysis adopted in

applying HRE Rules 401 and 402.”8 Vliet, 95 Hawaiʻi at 106, 19

6
HRE Rule 702 provides the following:

If scientific, technical, or other specialized knowledge
will assist the trier of fact to understand the evidence or
to determine a fact in issue, a witness qualified as an
expert by knowledge, skill, experience, training, or
education may testify thereto in the form of an opinion or
otherwise. In determining the issue of assistance to the
trier of fact, the court may consider the trustworthiness
and validity of the scientific technique or mode of
analysis employed by the proffered expert.

HRE Rule 702 (1993).
7
Another touchstone of admissibility under HRE Rule 702 is
reliability. Vliet, 95 Hawaiʻi at 106, 19 P.3d at 54. We do not consider the
reliability of the evidence as Kony only objects to the testimony as not
relevant.
8
Under HRE Rule 401, “relevant evidence” “means evidence having
any tendency to make the existence of any fact that is of consequence to the
(continued . . .)

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P.3d at 54 (footnotes omitted). “The critical inquiry with

respect to expert testimony is whether such testimony will

assist the trier of fact to understand the evidence or determine

a fact in issue.” State v. Fukusaku, 85 Hawaiʻi 462, 472, 946

P.2d 32, 42 (1997) (quoting State v. Maelega, 80 Hawaiʻi 172,

181, 907 P.2d 758, 767 (1995)). In State v. Batangan, 71 Haw.

552, 799 P.2d 48 (1990), this court considered the admissibility

of expert testimony under HRE Rule 702 regarding the patterns of

behavior of child victims of sexual abuse. 71 Haw. at 555, 799

P.2d at 50. The court in Batangan found that sexual abuse of

children “is a particularly mysterious phenomenon,” Id. at 557,

799 P.2d at 51 (quoting State v. Castro, 69 Haw. 633, 648, 756

P.2d 1033, 1044 (1988)). The court also observed that the jury

may lack an adequate foundation “for assessing the credibility

of a young child who complains of sexual abuse” because

“[n]ormally,” seemingly bizarre behavior such as delayed

reporting might “be attributed to inaccuracy or prevarication.”

Id. (quoting State v. Myers, 359 N.W.2d 604, 610 (Minn. 1984)).

Expert testimony, therefore, explains to the jurors “the unique

interpersonal dynamics involved in prosecutions for intrafamily

(continued . . .)
determination of the action more probable or less probable than it would be
without the evidence.” HRE Rule 401 (1993).

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child sexual abuse” and corrects “widely held misconceptions,”

in order that the jury “may evaluate the evidence free of the

constraints of popular myths.” Id. at 557-58, 799 P.2d at 52

(first quoting Wheat v. State, 527 A.2d 269, 275 (Del. Super.

Ct. 1987); then quoting People v. Gray, 231 Cal. Rptr. 658, 660–

661 (Cal. Ct. App. 1986)).

The Batangan court found that expert testimony was

necessary to address “patterns of behavior” of minor victims of

sexual assault “which are seemingly inconsistent with behavioral

norms of other victims of assault,” including delayed reporting.

Id. at 557, 799 P.2d at 5. The court noted that “it is helpful

for the jury to know that many child victims of sexual abuse

behave in the same manner.” Id. at 557, 799 P.2d at 52. While

Batangan stands for the proposition that such testimony is

helpful to the jury in cases involving “‘seemingly bizarre’

behavior of child sex abuse victims,” id. at 558, 799 P.2d at

52, such testimony is not indiscriminately admissible under

Batangan and instead must be evaluated under the requirements of

HRE Rules 702, 401, 403, and other rules of evidence.

In this case, Dr. Bivens discussed delayed reporting

by children identified as victims of sexual abuse. Kony argued

on appeal that expert opinion is no longer needed to explicate

the phenomenon of delayed reporting. However, under Batangan

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expert testimony regarding “seemingly bizarre” behavior of

victims, including the phenomenon of delayed reporting, has been

held to be helpful to the jury where reporting by a child victim

of sexual abuse is delayed. At the motion in limine hearing,

Kony’s position was that Dr. Bivens’ testimony was not related

to this case and therefore irrelevant. The testimony from Minor

indicates that her reporting of the abuse, which first occurred

in May 2011, was delayed until August 2011. Consequently, the

record in this case supports a determination by the trial court

that it would be helpful for the jury to hear expert testimony

that delayed reporting is a common phenomenon in incidents of

child sexual abuse. Thus, the circuit court did not err in

determining that Dr. Bivens’ testimony regarding delayed

reporting was relevant and admissible.

B. Absence of Other Objections to Dr. Bivens’ Testimony

1.

Kony also contends that Dr. Bivens’ testimony

improperly profiled him as a sex offender and that the

statistical data referenced in his testimony was misleading and

highly prejudicial. Kony argues that, under HRE Rule 103,9 he

9
HRE Rule 103(a) (2006) states:

(continued . . .)

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maintained his objection to all of the evidence provided by Dr.

Bivens by objecting to his entire testimony. However, under the

circumstances of this case, we find that Kony did not preserve

his objection for appellate review.

The circuit court in its motion in limine ruling

specifically indicated that it was allowing Dr. Bivens’

testimony only insofar as it addressed the issue of delayed

reporting. During the motion in limine hearing, the court

explained that it understood Kony’s motion as requesting the

court to preclude Dr. Bivens from taking the stand at all.

While the court allowed Dr. Bivens to testify, the court

instructed defense counsel to raise objections as counsel

(continued . . .)
Effect of erroneous ruling. Error may not be predicated
upon a ruling which admits or excludes evidence unless a
substantial right of the party is affected, and:

(1) Objection. In case the ruling is one admitting
evidence, a timely objection or motion to strike appears
of record, stating the specific ground of objection, if
the specific ground was not apparent from the context;
or

(2) Offer of proof. In case the ruling is one
excluding evidence, the substance of the evidence was
made known to the court by offer or was apparent from
the context within which questions were asked.

Once the court makes a definitive ruling on the record
admitting or excluding evidence, either at or before trial,
a party need not renew an objection or offer of proof to
preserve a claim of error for appeal.

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determined appropriate, and the court would rule “question by

question.”

Yeah. Well, I understand. I understand your
position. And in these kinds of cases the defense as a
matter of course tries to keep Dr. Bivens off the stand and
I understand why.

I’m going to allow the State to call him on this
issue of delayed reporting. And obviously they’re going to
have to qualify him as an expert and then -- but that’s the
offer of proof and that’s as far as I’m concerned what I’m
going to allow as far as the testimony, and aside from
that, we’re just going to go question by question.
[Prosecutor] will ask the question. If you think it’s
objectionable, you go ahead and object, [Defense Counsel],
and I’ll rule question by question basically.

(Emphases added).

Despite the court’s caveat regarding the limited

nature of its in limine ruling, which permitted Dr. Bivens to

testify on the limited issue of delayed reporting, Kony did not

raise objections during trial on the grounds that Dr. Bivens’

testimony consisted of profile evidence or that the statistical

evidence was misleading or prejudicial. In addition, the court

reiterated during Dr. Bivens’ testimony that it would entertain

objections. However, Kony’s only objections were based on

relevancy grounds as Dr. Bivens was referencing studies related

to younger children.10

10
The defense objected twice during Dr. Bivens explanation of
delayed reporting, once concerning prepubescent children and once regarding
five and seven year-olds. The court overruled the objection to allow the
witness to finish the question but indicated that if Dr. Bivens continued to
talk about five to seven-year-olds, the court would begin sustaining
objections. Similarly, Kony’s third objection was to Dr. Bivens’ testimony
(continued . . .)

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HRE Rule 103(a)(1) requires a “specific” objection or

a motion to strike if the ground is “not apparent from the

context.” Vliet, 91 Hawaiʻi at 298-99, 983 P.2d 189, 199-200

(quoting Tabieros v. Clark Equip. Co., 85 Hawaiʻi 336, 379 n.29,

944 P.2d 1279, 1322 n.29 (1997)); see also State v. Kassebeer,

118 Hawaiʻi 493, 505, 193 P.3d 409, 421 (2008) (holding that the

defendant waived the right to challenge testimony regarding the

chain of custody of a handgun due to his failure to object);

State v. Uyesugi, 100 Hawaiʻi 442, 464, 60 P.3d 843, 864-865

(2002) (noting that defendant has the burden under HRE Rule 103

to create an adequate record in order to preserve an error for

review).

Under the specific circumstances of this case, where

the defendant moved in limine to entirely exclude an expert from

testifying but the evidence that the prosecution stated it

intended to elicit was admissible, the defendant was

specifically instructed by the court to object during the course

of the trial to objectionable testimony, and the defendant did

(continued . . .)
regarding seducing and testing of a younger child, in which sexual touching
by the molester is incorporated into the adult-child relationship. Kony’s
objection, which was overruled, was that the testimony was irrelevant. The
defense’s final objection to Dr. Bivens’ testimony, which was sustained, was
in regard to the “tunnel memory” effect observed in young children involved
in car accidents.

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not properly object, the requirements of HRE Rule 103 were not

fulfilled.11 Kony therefore did not preserve his right to raise

the issues of whether Dr. Bivens’ testimony profiled him as a

sex offender and whether the statistical evidence was unfairly

prejudicial or misleading. Accordingly, we do not consider the

merits of Kony’s arguments on these issues. However, because

the ICA’s analysis assumed arguendo that Kony properly preserved

his objections and concluded the objections were without merit,

we provide guidance on the application of HRE Rule 403 to

statistical evidence.12

2.

The expert testimony presented to the jury in this

case included statistics regarding child sexual abuse, such as

the following: “over 95 percent of sexual crimes are committed

by males”; “a recent study showed that about 70 percent of

molesters had a relationship with the child’s parents”; “85

percent of sexual abuse victims have a pre-existing non-sexual

relationship with their molester and “in Hawaii . . . a little

11
Plain error was not raised in the appellate briefs or the
certiorari application. Given the circumstances of this case, including the
circuit court’s multiple invitations for defense counsel to object to the
testimony at issue and Kony’s proffered defense, plain error review is not
warranted. See State v. Fox, 70 Haw. 46, 56, 760 P.2d 670, 676 (1988)
(discussing the standard for plain error review).
12
We do not discuss Kony’s contention that Dr. Bivens testimony
improperly profiled him as a sex offender.

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over 50 percent do have a family relationship . . . between the

child and the molester”; and “a hundred percent of incest

victims experience sexual abuse within their own home.”

Although the ICA majority ostensibly evaluated the

merits of Kony’s argument that it was error for the trial court

to admit the testimony because it was unduly prejudicial and

misleading under HRE Rule 403, the ICA’s analysis included no

discussion of the potential prejudice of this statistical data.

Additionally, there was no weighing of the potential for unfair

prejudice against the probative value of Dr. Bivens’ testimony.

The ICA’s analysis instead seems to find that, because Dr.

Bivens’ testimony is relevant and not categorically excluded, it

must always be admitted when applying HRE Rule 403.13 However,

while expert testimony regarding child sexual abuse may be

admissible to “assist the jury” under Batangan, it should only

13
In its ruling, the ICA states that “Hawaiʻi courts have
consistently held that Dr. Bivens’s generalized testimony ‘was helpful to the
jury and relevant to provide context to evaluate the behavior of the Child
where normal indicia of reliability may not apply,’” and it cites to two
unpublished dispositions of the ICA and Batangan in support of this
proposition.

The ICA also seems to have found it significant that Dr. Bivens
did not have any information about the case. While this appears relevant to
the question of whether Dr. Bivens’ testimony could be perceived as directly
opining on Minor’s credibility or Kony’s guilt, it is not clear how the
absence of such information by Dr. Bivens would address the potential
prejudice of statistical evidence, and, in fact, it seemingly may have had
the effect of enhancing prejudice by the factual match between the
percentages and the circumstances presented at trial.

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be admitted if it may be presented “without unduly prejudicing

the defendant.” Batangan, 71 Haw. at 557-58, 799 P.2d at 51-52.

Said another way, Batangan does not exempt expert testimony

concerning child sexual abuse victims from the weighing required

by HRE Rule 403.

Under HRE Rule 403, relevant evidence may be excluded

if its probative value is substantially outweighed by the danger

of unfair prejudice or the danger of misleading the jury.14

Because expert evidence “can be both powerful and quite

misleading,” “the judge in weighing possible prejudice against

probative force under Rule 403 . . . exercises more control over

experts than over lay witnesses.” Vliet, 95 Hawaiʻi at 108, 19

P.3d at 56 (quoting Daubert v. Merrell Dow Pharm., Inc., 509

U.S. 579, 596 (1993)); see also United States v. Chischilly, 30

F.3d 1144, 1156 (9th Cir. 1994) (“[W]e take seriously the

Court’s admonition in Daubert that scientific evidence must

withstand close scrutiny under Rule 403.”), overruled on other

14
HRE Rule 403 provides as follows:

Although relevant, evidence may be excluded if its probative
value is substantially outweighed by the danger of unfair
prejudice, confusion of the issues, or misleading the jury, or by
considerations of undue delay, waste of time, or needless
presentation of cumulative evidence.

HRE Rule 403 (1993).

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grounds by United States v. Preston, 751 F.3d 1008 (9th Cir.

2014)).

Thus, “the possibility that the jury may be unduly

influenced by the expert’s opinion would mitigate against

admission.” Batangan, 71 Haw. at 562, 799 P.2d at 54 (quoting

State v. Kim, 64 Haw. 598, 606, 645 P.2d 1330, 1337 (1982)).

Indeed, the Batangan court expressly recognized that, even when

probative, “[s]cientific and expert testimony, with their ‘aura

of special reliability and trustworthiness,’ courts the danger

that the triers of fact will ‘abdicate [their] role of critical

assessment,’ and ‘surrender [ ] their own common sense in

weighing testimony.’” Batangan, 71 Haw. at 556, 799 P.2d at 51

(second and third alterations in original) (first quoting United

States v. Amaral, 488 F.2d 1148, 1152 (9th Cir. 1973); then

quoting State v. Brown, 297 Or. 404, 439, 687 P.2d 751, 773

(1984); and then quoting United States v. Azure, 801 F.2d 336,

341 (8th Cir. 1986)). The Batangan court recognized that expert

testimony regarding the common behavior of child sexual abuse

victims “carries the potential of bolstering the credibility of

one witness and conversely refuting the credibility of another.”

Id. at 556, 799 P.2d at 51. Accordingly, the “pertinent

consideration is whether the expert testimony will assist the

jury without unduly prejudicing the defendant.” Id.

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Expert testimony that employs the use of statistics

presents further hazards that courts must be sensitive to when

applying the HRE Rule 403 weighing of the probative value

against the danger of unfair prejudice or misleading of the

jury. See, e.g., Chischilly, 30 F.3d at 1156 (“Numerous hazards

attend the courtroom presentation of statistical evidence of any

sort. Accordingly, Rule 403 requires judicial vigilance against

the risk that such evidence will inordinately distract the jury

from or skew its perception of other, potentially exculpatory

evidence lacking not so much probative force as scientific

gloss.” (footnotes omitted)). Commentators have also warned

against “the use of probability evidence on crucial points in

criminal prosecutions.” David McCord, Expert Psychological

Testimony About Child Complainants in Sexual Abuse Prosecutions:

A Foray into the Admissibility of Novel Psychological Evidence,

77 J. Crim. L. & Criminology 1, 55 (1986). Such evidence may

overwhelm the jury “to the extent that it attributes more

probative value to the evidence than it actually has” and leads

to “unfair prejudice, confusion of the issues, or misleading the

jury.”15 McCord, supra, at 58.

15
Dr. Bivens began his testimony by emphasizing that his statistics
were trustworthy, stating that the studies he was citing were “significant”
because they were “regarded as being done very well on this topic.” Although
Dr. Bivens did state that statistics have some margin of error, he also
(continued . . .)

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Additionally, statistical evidence regarding the

behavior of offenders and victims may undermine the reasonable

doubt standard to the extent that such data is used by the jury

in making its ultimate determination regarding a defendant’s

guilt.16 Id. at 56-58. A fundamental problem of such testimony

is that it “invites the jury to convict the defendant on the

basis of a statistical probability rather than on the basis of

the evidence in the case.” Id. at 55. However, the idea of

reasonable doubt requires proof connecting the defendant to the

crime and does not permit proof that a defendant is more likely

to be guilty because he or she may share characteristics or

traits with discrete populations of offenders.17

(continued . . .)
stated that “[t]he studies that I’ll be talking about today have enough
individuals included in the study so that the percentages are relatively
reliable.” He also stated, “Percentages should only be used to be given a
general idea of, you know, how the phenomenon most often occurs.”
16
See Laurence H. Tribe, Trial by Mathematics: Precision and
Ritual in the Legal Process, 84 Harv. L. Rev. 1329, 1372-75 (1971).
17
See State v. Transfiguracion, No. SCWC-11-0000048 2013 WL
1285112, at *6 (Haw. Mar. 28, 2013) (Order Rejecting Application for Writ of
Certiorari) (Acoba, J., dissenting); see also State v. Claflin, 690 P.2d
1186, 1190 (Wash. Ct. App. 1984) (“An opinion that the defendant
statistically is more likely to have committed the crime because of his
membership in a group--in this case, his paternalistic relationships to the
victims--is inadmissible.”); Hall v. State, 692 S.W.2d 769, 773 (Ark. App.
1985) (rejecting evidence that “in 75% to 80% of such cases the perpetrator
is known to the children involved” and “50% of child sexual abuse cases occur
in either the home of the child or the perpetrator” because it “was not of
proper benefit to the jury,” “tended to focus the attention of the jury upon
whether the evidence against the defendant matched the evidence in the usual
case involving the sexual abuse of a young child,” and was “distractive and
prejudicial”).

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A court should also consider the manner in which the

statistical information is presented because statistical

evidence has the potential to be misleading and given undue

weight by the jury based on how it is adduced. For example,

commentators have observed that statistics in sexual abuse cases

may mislead the jury based on the manner in which the

statistical information is presented. See Thomas D. Lyon and

Jonathan J. Koehler, The Relevance Ratio: Evaluating the

Probative Value of Expert Testimony in Child Sexual Abuse Cases,

82 Cornell L. Rev. 43, 47 (1996). Testimony that a percentage

of offenders or victims have a particular characteristic may be

misleading unless the percentage of all persons with the

relevant characteristic that are offenders or victims is also

stated. Thus, a statistic that 95 percent of burglaries are

committed by persons within a certain economic group has the

potential to be serious misleading without also stating the

percentage of all persons within that economic group who commit

burglaries.

In this case, Dr. Bivens testified that “over 95

percent of sexual crimes are committed by males.” However,

testimony that 95 percent of a certain category of criminal

offenders are male would not appear to assist the jury in

comprehending something not commonly known or understood. See

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Batangan, 71 Haw. at 562, 799 P.2d at 54. And, even assuming

admissibility, there appears to be little or no probative value

that may be discerned by admission of this evidence. Further,

the manner in which the statistic was presented had the

potential to be misleading because the fact that 95 percent of

sexual abusers are male does not indicate the probability that a

person with the relevant characteristic--here, that of being

male--is also an offender. The percentage of all men who

sexually abuse children was not stated by Dr. Bivens, and

without such context, the testimony appears significantly

misleading.

This is not to suggest that providing the jury with

additional statistics is the appropriate approach to rectify

problematic statistics. Instead, when statistics are

potentially misleading, in posing a risk, for example, that the

jury may consider that the defendant’s relationships or

characteristics make it more likely that the defendant committed

the offense, then the court must carefully weigh the danger of

improper influence upon the jury in its HRE Rule 403 analysis of

the proffered testimony.18 See Vliet, 95 Hawaiʻi at 108, 19 P.3d

18
See State v. Petrich, 683 P.2d 173, 180 (Wash. 1984) (precluding
on retrial expert’s testimony that in “eighty-five to ninety percent of our
cases, the child is molested by someone they already know,” as it “invites
the jury to conclude that because of defendant’s particular relation
(continued . . .)

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at 56 (“Expert evidence can be both powerful and quite

misleading because of the difficulty in evaluating it. Because

of this risk, the judge . . . under Rule 403 . . . exercises

more control over experts than over lay witnesses.” (quoting

Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 596 (1993)).

As stated, the testimony in this case included

numerous statistical percentages: “70 percent of molesters had a

relationship with the child’s parents”; “a hundred percent of

incest victims experience sexual abuse in their home”; and that

“85 percent of sexual abuse victims have a pre-existing[,] non-

sexual relationship with their abuser,” and in Hawaiʻi

specifically, “50 percent do have a family relationship.”

Because the ICA considered that an adequate objection was made

to this evidence, the ICA should have taken into account the

problematic nature of these statistics in considering whether

their probative value was substantially outweighed by the danger

of unfair prejudice or whether the evidence was misleading.

(continued . . .)
relationship to the victim, he is statistically more likely to have committed
the crime”), overruled in part on other grounds by State v. Kitchen, 756 P.2d
105 (Wash. 1988); Stephens v. State, 774 P.2d 60, 64 (Wyo. 1989) (observing
that it was “difficult [ ] to understand how statistical information would
assist a trier of fact in reaching a determination as to guilt in an
individual case” in reviewing expert’s testimony that informed the jury “that
statistically eighty to eighty-five percent of child sexual abuse is
committed by a relative close to the child”), overruled in part on other
grounds by Large v. State, 177 P.3d 807, 816 (Wyo. 2008).

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Judge Reifurth noted in his concurring opinion that the ICA

majority’s approach seems to admit expert testimony “so long as

it may be deemed contextually relevant.” We agree with Judge

Reifurth that this “is not the right measure” and that “the

potential prejudice of such evidence should be assessed against

its probative value.” However, because Kony did not properly

preserve his argument that the testimony was unduly prejudicial

or misleading, we need not consider the extent of any unfair

prejudice to Kony or the possibility of misleading of the jury

under HRE Rule 403.

IV. Conclusion

Batangan instructs that “[c]ourts must proceed with

caution in admitting expert testimony” in cases involving the

sexual abuse of children. Batangan, 71 Haw. at 562, 799 P.2d at

53. Such evidence is admissible if it will “assist the jury to

comprehend something not commonly known or understood,” such as

“seemingly bizarre behavior of child sex abuse victims.” Id. at

557-58, 799 P.2d at 52-54. If the evidence will assist the

jury, then the court, upon objection, must determine the probity

of the evidence in relation to the danger of unfair prejudice,

any misleading aspects of the evidence, or potential for undue

influence. See id. at 556, 799 P.2d at 51. In making this

determination, courts must recognize that “this type of expert

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testimony carries the potential of bolstering the credibility of

one witness and conversely refuting the credibility of another.”

Id. at 558. Consequently, expert testimony of this nature

should be carefully evaluated under HRE Rule 403 to ensure that

proffered statistical evidence is not misleading or unfairly

prejudicial.

For the reasons discussed and in light of the record

in this case, the November 28, 2012 Judgment of Conviction and

Sentence and the ICA Judgment on Appeal are affirmed.

John M. Tonaki and /s/ Sabrina S. McKenna
Jon N. Ikenaga
for petitioner /s/ Richard W. Pollack

Donn Fudo /s/ Michael D. Wilson
for respondent

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