State v. Feliciano

NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
31-AUG-2020
08:00 AM

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

STATE OF HAWAI#I, Plaintiff-Appellee,
v.
ALLAN MICHAEL G. FELICIANO,
aka ALLAN M. GAMON FELICIANO,
Defendant-Appellant

APPEAL FROM THE FAMILY COURT OF THE THIRD CIRCUIT
(CASE NO. 3FFC-XX-XXXXXXX)

MEMORANDUM OPINION
(By: Hiraoka and Wadsworth, JJ., and
Leonard, Presiding Judge, dissenting)

Defendant-Appellant Allan Michael G. Feliciano, also
known as Allan M. Gamon Feliciano (Feliciano), appeals from the
Judgment of Conviction and Probation Sentence (Judgment), entered
on June 2, 2017, in the Family Court of the Third Circuit (Family
Court).1/ After a jury trial, Feliciano was convicted of Abuse
of Family or Household Member, in violation of Hawaii Revised
Statutes (HRS) § 709-906(1) (Supp. 2016).2/

1/
The Honorable Ronald Ibarra presided.
2/
HRS § 706-906(1) provides, in relevant part:

It shall be unlawful for any person, singly or in concert,
to physically abuse a family or household member . . . .
For the purposes of this section:
. . . .

"Family or household member":
(continued...)
 NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER

On appeal, Feliciano contends that the Family Court
erred in allowing the State to adduce at trial evidence of a
prior bad act that Feliciano allegedly committed in February
2016, when he allegedly pushed the complaining witness (CW), his
then-wife, out of a chair.
After reviewing the record on appeal and the relevant
legal authorities, and giving due consideration to the issues
raised and the arguments advanced by the parties, we affirm the
Judgment for the reasons set forth below.

I. RELEVANT BACKGROUND

On February 2, 2017, Feliciano was charged by complaint
with "intentionally, knowingly or recklessly physically abus[ing
the CW], a family or household member," in violation of HRS
§ 709-906(1). The charge stemmed from an incident in the early
morning hours of January 14, 2017 in which Feliciano allegedly
struck the CW in the face.3/ In his disclosure of defenses filed
on March 7, 2017, Feliciano asserted that at trial, he "may rely
on [several] defenses," including that he "lacked the specific
state of mind required to commit the offense charged," and that
he acted in "[s]elf defense[.]"
On April 21, 2017, the State filed a notice of intent
to use evidence of Feliciano's "prior bad acts" at trial –
namely, "[f]acts and [c]ircumstances documented in police report
C17001634 and in interviews with [the CW] detailing an incident
in 2016 in which [Feliciano] pushed [the CW] out of a chair" (the
chair incident). In response to Feliciano's subsequent motion in
limine to exclude the evidence, the State asserted, among other

2/
(...continued)
(a) Means spouses or reciprocal beneficiaries, former
spouses or reciprocal beneficiaries, persons in a
dating relationship as defined under section 586-1,
persons who have a child in common, parents, children,
persons related by consanguinity, and persons jointly
residing or formerly residing in the same dwelling
unit[.]
3/
The incident followed a party at the home of Feliciano and the CW
on the evening of January 13, 2017. Hence, the complaint alleged that
Feliciano committed the charged offense "[o]n or about the 13th day of
January, 2017[.]

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things, that: (a) the chair incident contributed to the CW's
medical use of marijuana; (b) Feliciano, through counsel, had
indicated an intention to raise at trial the issue of the CW's
use of marijuana on the night of January 13, 2017; (c) the State
intended to elicit testimony of the chair incident as necessary
to explain the CW's medical use of marijuana; and (d) the chair
incident was also relevant to rebut Feliciano's expected defenses
of ignorance or mistake and self-defense, as noted in Feliciano's
disclosure of defenses and proposed special jury instructions.
Prior to the start of trial on June 1, 2017, the
Circuit Court denied Feliciano's motion to exclude evidence of
the chair incident,4/ in the following exchange:
[Deputy Prosecuting Attorney (DPA)]: -- far as the
prior bad acts, the State is just trying to reserve its
ability to bring up a prior incident between the defendant
and the [CW] with regard --

THE COURT: You did provide notice --
[DPA]: Yes.

THE COURT: -- so yes.

So you talking about prior actions of the defendant
may be relevant?

[DPA]: If that --
THE COURT: If the --

[DPA]: -- her marijuana usage is brought up.

THE COURT: If the door is opened.

[DPA]: Yes.
THE COURT: So well to that extent, if the motion in
limine is prohibiting that, motion is denied.

At trial, during Feliciano's opening statement, defense
counsel portrayed the CW as "under the influence of various
substances" on the night of January 13, 2017, and claimed that
Feliciano's "actions were justified." Specifically, defense
counsel stated:
The evidence will show that nothing that [the CW] did
on that night made sense. She was under the influence of
various substances. She was behaving aggressively. At the
end of the night she was in bed with another man in the home
that she and her husband purchased together.

4/
A written order denying Feliciano's motion in limine was entered
on June 13, 2017.

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. . . Feliciano is not guilty of abuse of family or
household member. He was the one who was acting reasonably
that night. His actions were justified and they were
permitted under the law. 5/

Moments later, defense counsel described the couple's "rocky"
relationship:
He loved his wife. He loved his job. They owned a
home. He's proudly serving his country. Things started to
get rocky and within the last couple years they got more and
more rocky. There were nights that [CW] was not coming
home.

Defense counsel then returned to the night of the incident,
stating in part:
Now, again, nothing that [the CW] did on that night
made sense. . . .
Now [Feliciano] goes to bed and there are couple of
people still hanging out. Around 2:00 in the early morning
he wakes up. He notices that [the CW] is not with
him. . . .

He walks out into the living room. In the living room
is a couch that folds out into a bed. The couch is folded
out into the bed. And under the blankets on that couch he
sees his wife and his friend. They're asleep.

. . . So he wakes her up and what he does is
reasonable. He asks her to come to bed. . . .
And for a little bit, [the CW] agrees. She's groggy.
Intoxicated. . . .

And then they get into an argument and she pushes him.
She lunges at him. And she says, "Take your drunken friend
to bed. Take your friend to bed." Again, nothing is making
sense and he reacts and he slaps her, and he reacts
reasonably. . . .

Following opening statements, the State called the CW
as its first witness. The CW testified that on the evening of
January 13, 2017, she and Feliciano had a get together with
friends at their home. The CW did not have anything to drink
that night, but she did use marijuana. She explained that she
had a medical marijuana license — that she suffered from chronic
back pain and used marijuana for pain management. She confirmed
that at the gathering that night, Feliciano was drinking alcohol
"the whole time."

5/
Similarly, in her closing statement, defense counsel argued that
the CW acted under "intoxication by marijuana," and that Feliciano "ha[d] no
obligation under the law to stand there and take it."

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The CW further testified that when "some roughhousing"
broke out between two of the guests, Feliciano became involved in
the argument, and the CW tried to calm him down to keep him from
fighting. As the CW talked to Feliciano, he grabbed and twisted
her wrist. The CW then went into the house, shut off the lights,
pulled out the bed from the couch, and fell asleep on the couch
bed with her clothes on. In the early morning, she was pulled
out of the bed by Feliciano, and she saw that one of his friends
was also sleeping on the couch bed with his clothes on. The CW
told Feliciano that "[she] didn't wanna go and sleep in the room
with him, in the same bed, and [she] told him to take his friend
with him 'cause [she] was sleeping on the couch first." After
that, Feliciano, who was "under the influence of alcohol," "got
mad at [her.] And . . . he said, 'Oh, why you don't wanna come
sleep in the room with me, 'cause I hurt you? You don't know
what hurting is. You don't know what abuse is. I'll show you.'"
Then, according to the CW, Feliciano struck her on the left side
of her face with his right fist. She said that both of her hands
were "at her side" when Feliciano struck her, and that she
"blacked out and . . . fell on the ground" after being hit.
On cross-examination, defense counsel initially asked
the CW about her marijuana use, her medical marijuana card, and
other prescribed medications she was taking. Defense counsel
also asked the CW about the couple's separation for several
months prior to the night that Feliciano struck her:
Q. . . . .
And at this time around January you were not
actually staying at that Mamalahoa home frequently, were
you?

A. I had just moved back, yeah.
Q. Okay.
How long had you been gone before?

A. About six months.
Q. And you were –

A. I was separated.
Q. -- staying at your parents' house before
then –
A. Yeah.

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Defense counsel did not ask why the couple had separated.
During his own testimony, Feliciano disputed the CW's
account of events on the night at issue. He testified that after
a get together with friends at the couple's home, he fell asleep
in the master bedroom and woke up to find that the CW was not in
bed. He went to look for her and found her sleeping in the
living room on the pull-out couch bed "under the covers with one
of [his] friends." Feliciano stated that he woke up the CW and
pulled her up to go back to the bedroom; as they were walking,
she pulled her hand away, became angry, and kept pushing him
until he reacted by slapping her face.
Feliciano further testified:
Q. (By [defense counsel]) . . . [Y]ou're aware that at
this time [the CW] is on a number of medications; is that
right?

A. Yes.

Q. Including marijuana?
A. Yes.

Q. Okay. Were you on any sort of medication?
A. No. I didn't need any of that stuff to try and get
anything out.

On direct examination, Feliciano also testified about
his marital relationship with the CW, including the roughly six-
month period before January 2017 when the couple separated and
the CW was living at her parents' home. Feliciano stated that
the relationship began to deteriorate after the CW "started going
heavy on marijuana usage" and that the CW eventually "moved out
on her own." He testified, in relevant part, as follows:
Q. Okay, and then if you can briefly just describe to us
your marriage to [the CW].
A. At the beginning it was great. You know, we were
newlyweds. We did everything together. We compromised.
Just this past few years she started going heavy on
marijuana usage and she stopped going to work. I would come
home from work and I would just catch her watching TV,
smoking all day. I would have to clean up after the animals
and cook dinner at night after working all day.

. . . .
Q. (By [DEFENSE COUNSEL]) So you mentioned that you would
get home after working and [the CW] would be home?
A. Yes, she would be home.

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Q. Okay, and this is in the context of things were a little
bit rocky in your relationship earlier this year; is that
fair to say?
A. Yes. She wouldn't -- like during --

Q. . . . You mentioned that she would smoke marijuana.
Where would she get her marijuana from?
A. She would make deals with her friends. She would buy
from her friends.
Q. Okay, and then after things started going downhill, did
you guys ever talk about separating?
A. She wanted to separate but I didn't want to separate. I
felt like we could try and work something out.
Q. So had you talked to her about working things out?

A. I have but she wanted to separate because --
Q. So at some point did you separate?

A. Yes, we did.
Q. Okay, and what did that involve?
A. Before January we were separated for about six months.
She was living at her parents' house and I was up at the
house. I didn't want to separate. She moved out on her
own. She would come home once in a while but during that
time frame she got into a lot of trouble. She crashed --

[DPA]: Objection.

THE COURT: Sustained.

Later in his testimony, Feliciano further discussed the
couple's separation as follows:
Q. So you had just previously testified that [the CW] had
not been living there but was she there on that
night?
A. She was.

Q. And can you tell us, what was she doing at the party?
A. She was there. We were -- she was actually staying
there for about a week and a half now. We were trying to
work things out.

On cross-examination, the State asked Feliciano about
finding the CW on the couch with his friend:
Q. And when you saw them, you got upset; correct?

A. Yes, yes, I did.
Q. And part of the reason you got upset is because you had
been cheated on before?

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A. Correct.6/
Q. So you thought [the CW] was sleeping with your friend in
a more than just laying next to each other?
A. It looked like it, yes.

Q. In your own house; correct?
A. Correct.

Q. And you were angry?
A. Well, I was more worried. I was sad.
Q. And you were so angry, you pulled her out of the bed?
A. That's incorrect.
Q. You didn't pull her out of the bed?

A. I didn't pull her out of the bed in an angrily [sic]
manner.

Q. Why pull her up at all?
A. So she could come to bed with me.
Q. Shouldn't she make that decision herself?

A. To sleep with another man?
Q. Can you force -- do you think you should be able to
force your wife to come to bed with you?

. . . .
A. Yes, it was her choice to stay I guess.

(Footnote added.)
Shortly after this testimony, the State followed up
with Feliciano about the couple's prior separation, and he
testified as follows:
Q. Now, you mentioned that [the CW] wanted to separate and
she had moved out earlier?

A. Yes.
Q. Why did she move out?
A. She had her –- to be honest, I don't really know why,
the real reason why she wanted to separate.
Q. Did she move out because of something you had done
to her?

A. Not that I recall.

Q. Did she move out because of something you had done to

6/
Feliciano testified that the person who had previously cheated on
him was not the CW.

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her in February of last year?
[DEFENSE COUNSEL]: Objection.
THE COURT: Overruled. Opened the door.

A. I don't– I don't remember doing anything to her in
February.
Q. (By [the DPA]) Did you push her out of a chair in
February because you were upset about something to eat?

A. No, I didn't .

After the defense rested and the jury left the
courtroom, the State said it would call the CW as a rebuttal
witness. The following exchange then occurred:
[DEFENSE COUNSEL]: So if the State does not get into
these prior bad acts that were brought out, then we won't
need a surrebuttal. The prosecutor asked --
THE COURT: Well, this is a different issue, whether
the State did elicit proper foundation to address what the
court over your objection ruled or overruled your objection,
being the door was opened as far as he doesn't have a
drinking problem, he -- and the other incident for which she
said that a reason for her moving out is that --

[DPA]: The only thing I'm going to --

THE COURT: What's the rebuttal then?
[DPA]: It's the self-defense, whether or not she was
pushing him, and the chair incident.

[DEFENSE COUNSEL]: That's the concern, the chair
incident. This is an entire other incident. He should have
an opportunity to explain.

[DPA]: He just did.

THE COURT: He was given the opportunity to deny it.
That's the reason -- because he raised it himself that she
moved out and he asked the question why is she moving out.
[DEFENSE COUNSEL]: Okay, but depending on her
testimony, what she says, this new information, which we
might not be aware of, that's the concern.

THE COURT: So the only incident for which the
prosecutor is going to seek rebuttal is why she moved out
and it is because of the chair because you raised that and
he denied it, not any other reasons. 7/

7/
As the dissent points out, the prosecutor then stated: "I'm not
going to ask her about why she moved out at all. I'm going to ask her about
the chair incident." The court responded: "But that's the reason why you
pointed the question to him as a reason for her moving out." The prosecutor
then said, "Right, and he denied it. . . . If I asked her why she moved out,
there may be other things[,]" and the court responded, "Maybe you can point --
I'll ask you a leading question, did you move out because of that incident,
and she can say yes or no." That is essentially how the State asked the
(continued...)

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Following a brief recess, the proceedings continued
without the jury. The Circuit Court stated, in relevant part:
THE COURT: . . . [S]o I'm going to read the
instruction before she testifies. You are about to hear
evidence that the defendant at another time may have
committed other wrongs. This is the allegation, pushing out
of a chair, right? This evidence, if believed by you, may
be considered only on the issue of the relationship of the
parties, and do not consider this evidence for any other
reason. You must not use this evidence to conclude that
because defendant at another time may have engaged in other
wrongs that he is a person of bad character and, therefore,
must have committed the offense charged in this case.
[DEFENSE COUNSEL]: No objection.
[DPA]: No objection.

THE COURT: And this will be given prior to her
testimony and that's the only time that the court will give
this instruction.

After the jury returned to the courtroom, a bench
conference was held:
THE COURT: This is a bench conference on the record.
The reason the court is giving this instruction and to
allow the rebuttal question is because defendant testified
on the relationship between the parties by saying she used
drugs or marijuana and that-- well, the relationship was
raised and the inference was also left that she moved out
for different reasons. That was the inference. And the
court has also looked at the 403 balancing factor,
prejudicial versus probative, and finds this is more
probative than prejudicial.

After the conclusion of the bench conference, the
Circuit Court instructed the jury as follows:
THE COURT: Back on the record. . . .

So, Ladies and Gentlemen, you are about to hear
evidence that the defendant at another time may have
committed other wrongs. This evidence, if believed by you,
may be considered only on the issue of the relationship of
the parties. You must not -- do not consider this evidence
for any other reason. You must not use this evidence to
conclude that because the defendant at another time may have
committed other wrongs that he is a person of bad character
and, therefore, must have committed the offense charged in
this case.

7/
(...continued)
question in rebuttal. See infra. Thus, it appears that in stating, "I'm not
going to ask her about why she moved out at all," the prosecutor was merely
declining to ask an open-ended question that conceivably could have invited
other prejudicial testimony regarding Feliciano. Instead, at the court's
suggestion, the State elicited narrower testimony regarding the chair
incident, which was the minimum necessary to obtain its probative value. See
infra.

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The CW was called as a rebuttal witness and testified,
in relevant part, as follows:
Q. In -- when you moved out in 2016, did you move out
because he pushed you out of a chair in February of 2016?
A. Yes, yes.

II. DISCUSSION

Feliciano contends that the Circuit Court abused its
discretion when it allowed the State: (1) to cross-examine him
about the chair incident; and (2) to call the CW to rebut
Feliciano's testimony denying the chair incident. The State
argues, and the Family Court ruled, that Feliciano "opened the
door" to this evidence by testifying on direct examination that
the CW's marijuana usage had led to the deterioration of the
couple's relationship and their temporary separation. The State
further argues that the same evidence, when analyzed
independently under Hawaii Rules of Evidence (HRE) Rule 404(b),8/
was: (1) relevant, and (2) more probative than prejudicial.
We address each of these contentions, in turn, below.

A. Opening-the-Door Doctrine
"The 'opening the door' doctrine is essentially a rule
of expanded relevancy . . . ." State v. Lavoie, 145 Hawai#i 409,
422, 453 P.3d 229, 242 (2019) (quoting State v. James, 677 A.2d
734, 742 (N.J. 1996)). "Under this doctrine, when one party
introduces inadmissible evidence, the opposing party may respond
by introducing inadmissible evidence on the same issue." Id.
(emphasis added; brackets omitted) (quoting State v. Fukusaku, 85
Hawai#i 462, 497, 946 P.2d 32, 67 (1997)). However, the opening-
the-door doctrine "generally does not allow a party to admit
evidence that is otherwise inadmissible to rebut an opponent's

8/
HRE Rule 404(b) provides, in 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.

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relevant and admissible evidence." Id. at 423, 453 P.3d at 243
(emphasis added) (citing Clark v. State, 629 A.2d 1239, 1244 (Md.
1993)).
Here, Feliciano argues that his testimony about the
CW's marijuana use and its effect on the couple's relationship
was only "slightly relevant" to either side's theory of the case.
The State, on the other hand, contends that "the entire defense
was to portray the [the CW] as an unfaithful and intoxicated
person of bad character[.]" The State further contends that
"[d]efense counsel's presentation at trial suggested the evidence
of [the CW's] use of marijuana was very relevant[,]" and that
Feliciano adduced the evidence to undermine the CW's character
and credibility. Neither party contends — nor did the Family
Court rule — that Feliciano's testimony was irrelevant or
otherwise inadmissible. Further, we conclude that Feliciano's
testimony was relevant to the couple's relationship, including
the reason for their prior separation, as further discussed
below. Accordingly, because Feliciano's testimony regarding the
CW's marijuana use was admissible, the State's cross-examination
of Feliciano and the CW's rebuttal testimony regarding the chair
incident, if otherwise inadmissible, would not generally be
admissible under the "opening the door" doctrine.
In Lavoie, however, the supreme court recognized
"authority from other jurisdictions for the proposition that the
door may also be opened to inadmissible evidence when a party
offers admissible evidence that is false or misleading if
considered in isolation." 145 Hawai#i at 424, 453 P.3d at 244;
see id. at 424 n.30, 453 P.3d at 244 n.30 (citing Valadez v.
Watkins Motor Lines, Inc., 758 F.3d 975, 981 (8th Cir. 2014)
(holding that a party may open the door to inadmissible evidence
to the extent that the inadmissible evidence "clears up a false
impression" or "clarifyies or completes an issue opened up by
opposing counsel") (brackets omitted); United States v. Osazuwa,
564 F.3d 1169, 1175 (9th Cir. 2009) (same); United States v.
Brown, 921 F.2d 1304, 1307 (D.C. Cir. 1990) (same); State v.
Carlson, 767 A.2d 421, 425 (N.H. 2001) (same)). The court
concluded that "such a rule would not apply here even if this

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court were to adopt it because no aspect of [the witness's]
testimony was shown to be false or misleading."9/ Lavoie, 145
Hawai#i at 424, 453 P.3d at 244.
Here, in contrast, Feliciano presented evidence and
argument, as part of his theory of the case, to portray the CW as
an unfaithful, drug-abusing spouse who was responsible for the
couple's prior separation, as well as for Feliciano's conduct on
the night he struck her. In this context, Feliciano's testimony
created at least the strong impression that the CW's marijuana
usage had led to the deterioration of the couple's relationship
and their temporary separation. On cross-examination, before any
objection by defense counsel, he denied that the CW had moved out
"because of something [he] had done to her." Under these
circumstances, the State's further cross-examination of Feliciano
about the chair incident challenged his account of the reason for
the couple's separation. Similarly, the CW's rebuttal testimony
directly rebutted Feliciano's account by linking the couple's
separation to the chair incident. This evidence, in turn, shed
light on the purportedly true nature of the couple's
relationship. The State thus offered direct evidence which, if
believed, would show that Feliciano's testimony regarding the
couple's relationship and separation was false or misleading.
Cf. Lavoie, 145 Hawai#i at 424, 453 P.3d at 244 (no indication
that a witness's testimony was likely to convey a false
impression where it was never shown that instances of abuse had
any relation to the couple's separation).

9/
The supreme court also stated that it "may have implicitly
rejected the rule [that a party may open the door to inadmissible evidence
that clears up a false or misleading impression] in Fukusaku[.]" Lavoie, 145
Hawai#i at 424, 453 P.3d at 244. We do not read Fukusaku as having reached
this result. There, the court concluded that general testimony elicited from
an expert on cross-examination by defense counsel about the absence of blood
on the cushions in the defendant's apartment did not open the door to
testimony about inadmissible test results indicating the presence of blood in
some areas of the apartment. See 85 Hawai #i at 497, 946 P.2d at 67. The
latter results came from tests that were subject to false positive reactions,
and confirmatory tests had not been conducted to conclusively establish the
presence of human blood. The trial court thus ruled that the test results
were not relevant, and that, even if relevant, they were more prejudicial than
probative. Id. at 496-97, 946 P.2d at 66-67. Fukusaku therefore did not
present a situation where a party was shown to have offered evidence creating
a false or misleading impression.

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Although Feliciano now contends that the couple's
relationship and separation were only "slightly relevant," at
trial, he attributed the couple's "rocky" relationship to the
CW's marijuana use. Indeed, defense counsel later tied the CW's
marijuana use to Feliciano's self-defense justification, arguing
to the jury that "intoxication by marijuana" was "not a defense
to [the CW's] actions" on the night of the alleged offense, and
Feliciano "ha[d] no obligation under the law to stand there and
take it."
"When a defendant leaves the trier of fact with a false
or misleading impression, the State is entitled to counter with
evidence to refute the impression created by the defendant and
cure the misleading advantage." Carlson, 767 A.2d at 425
(quoting State v. MacRae, 677 A.2d 698, 704 (N.H. 1996)). We
conclude that under these circumstances, where Feliciano offered
evidence that could be shown to be false or misleading in
isolation, the State's cross-examination of Feliciano and the
CW's rebuttal testimony regarding the chair incident were
admissible to place Feliciano's testimony in its proper context
and to correct the allegedly false impression created by that
testimony. See Clay v. State, 102 S.W.3d 794, 797 (Tex. App.
2003) ("Where the defendant delves into part of a subject, the
[prosecution] is entitled to inquire into the whole of the matter
in order to explain it or correct a false impression, even if the
later evidence might otherwise be inadmissible."). The Family
Court therefore properly admitted the evidence for that purpose.

B. Probative Value and the Danger of Unfair Prejudice
We further conclude that, even apart from the opening-
the-door doctrine, the State's introduction of the prior-bad-act
evidence independently passes muster under HRE Rule 404(b).
Under that rule, "any purpose for which bad-acts evidence is
introduced is a proper purpose so long as the evidence is not
offered solely to prove character." State v. Acker, 133 Hawai#i
253, 277, 327 P.3d 931, 955 (2014) (quoting State v. Yamada, 116
Hawai#i 422, 435, 173 P.3d 569, 582 (App. 2007)).
Here, the State's cross-examination of Feliciano was
offered for at least one proper purpose, namely, to show the full

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context of the couple's relationship and, relatedly, to test
Feliciano's credibility as a witness after he testified that the
CW's marijuana use led to the couple's separation. See State v.
Locken, 134 Hawai#i 376, 381, 341 P.3d 1176, 1181 (App. 2014).
Similarly, the CW's rebuttal testimony contradicted Feliciano's
denial that the CW had moved out because of the chair incident,
thereby impeaching Feliciano's credibility. See id. At the same
time, the cross-examination and rebuttal testimony served to
rehabilitate the CW's character and credibility, which Feliciano
had sought to undermine through his testimony. As such, the line
of questioning and the rebuttal testimony were probative of
issues of consequence in the case. See HRE Rule 404(b).
The full context of the couple's relationship also bore
on Feliciano's self-defense justification. Feliciano was charged
with intentionally, knowingly, or recklessly causing physical
abuse of a family or household member in violation of HRS § 709-
906(1).10/ He claimed that he was justified in that he acted in
self-defense, thereby putting in dispute his state of mind when
he struck the CW. See Arakawa, 101 Hawai#i at 32-33, 61 P.3d at
543-44. In particular, the context of the couple's relationship,
including Feliciano's alleged prior abuse of the CW, was
probative of whether he reasonably believed that striking the CW
was immediately necessary for the purpose of protecting himself
against the CW's alleged use of unlawful force against him.11/

10/
Because HRS § 709-906 does not specify the state of mind required,
HRS § 702-204 (2014) provides the default. See State v. Arakawa, 101 Hawai #i
26, 32, 61 P.3d 537, 543 (App. 2002). Section 702-204 provides, in relevant
part: "When the state of mind required to establish an element of an offense
is not specified by the law, that element is established if, with respect
thereto, a person acts intentionally, knowingly, or recklessly."
11/
While the Hawai#i appellate courts have not directly addressed the
interplay between a defendant's self-defense claim and his or her prior acts
of domestic abuse against the same victim, a number of courts in other
jurisdictions have concluded that such acts can be admissible in some
circumstances to rebut a defendant's self-defense claim, "usually by proving
that the defendant could not reasonably have feared the victim or that he or
she acted inconsistently with a reactionary defensive outburst." See State v.
Richards, 879 N.W.2d 140, 148 (Iowa 2016) (citing several cases). In
Richards, for example, the Iowa Supreme Court held that evidence of the
defendant's prior acts of domestic violence against the victim was probative
of whether the defendant acted, as he claimed, in furtherance of a belief that
he needed to protect himself against imminent injury at the victim's hands.
879 N.W. 2d at 152. Similarly, in State v. Dukette, 761 A.2d 442, 446-47
(N.H. 2000), the New Hampshire Supreme Court ruled that "evidence that the
(continued...)

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See HRS § 703-304; State v. Augustin, 101 Hawai#i 127, 128, 63
P.3d 1097, 1098 (2002) ("With respect to the use-of-force
defenses, the defendant's belief must be 'reasonable[.]'" (citing
HRS § 703-300 (1993) ("'Believes' means reasonably believes."))).
The record shows that the Family Court also weighed the
probative value of the alleged prior abuse against the danger of
unfair prejudice. See HRE Rule 403.12/ The Family Court's
balancing under HRE Rule 403 is reviewed for an abuse of
discretion. State v. Richie, 88 Hawai#i 19, 37, 960 P.2d 1227,
1245 (1998). Here, based on our review of the record, we cannot
conclude that the Family Court abused its discretion in
determining that the evidence was more probative than prejudicial
and thus admitting the evidence.
When weighing probative value versus prejudicial
effect, a court must consider a variety of factors, including:
the strength of the evidence as to the commission of
the other crime, the similarities between the crimes,
the interval of time that has elapsed between the
crimes, the need for the evidence, the efficacy of
alternative proof, and the degree to which the
evidence probably will rouse the jury to overmastering
hostility.

State v. Renon, 73 Haw. 23, 38, 828 P.2d 1266, 1273 (1992)
(quoting State v. Castro, 64 Haw. 633, 644, 756 P.2d 1033, 1041
(1988)).
First, the evidence of the chair incident was clear and
direct, as it was based on the testimony of the victim, the CW.
See Richards, 879 N.W.2d at 152 ("[a] victim's testimony,
standing alone, satisfies the requirement of clear proof"
(quoting State v. Jones, 464 N.W.2d 241, 243 (Iowa 1990))).
Feliciano disputes the CW's credibility, as she admitted on
cross-examination that she moved out several months after the

11/
(...continued)

defendant previously committed unprovoked assaults upon the alleged victim to
which the alleged victim did not respond violently undermine[d] the
defendant's argument that she reasonably believed the alleged victim was about
to use unlawful . . . force against her."
12/
HRE Rule 403 provides for the exclusion of relevant evidence where
"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."

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chair incident. However, the CW's testimony was sufficient to
support the probative value of the evidence, and it was for the
jury to determine the CW's credibility.
Second, there were similarities between the chair
incident and the present offense, both of which were acts of
domestic violence directed toward the same victim. Indeed,
Feliciano concedes that the similarities between the two
incidents "probably weigh[] in favor of the State." While the
incidents were not identical, we conclude that the similarities
weighed in favor of admitting the chair-incident evidence.
Third, the interval of time that elapsed between the
chair incident and the present offense – less than a year – did
not diminish the probative value of the context of the
relationship. See, e.g., Richards, 879 N.W.2d at 144, 153
(affirming admission of evidence of other abusive acts that
allegedly occurred "within the previous year"); Dukette, 761 A.2d
at 446 (the other acts "were not so removed in time as to render
them irrelevant" because they occurred within three years of the
charged conduct (citing State v. Allen, 514 A.2d 1263, 1268 (N.H.
1986))). Here, again, Feliciano admits that this factor
"probably weighs in favor of the State[,]" and we reach the same
conclusion.
Fourth, the need for the evidence was substantial. The
trial was largely a credibility contest between Feliciano and the
CW, and Feliciano sought to undermine the CW's character and
credibility by portraying her as an unfaithful, drug-abusing
spouse who was responsible for the couple's prior separation.
Under these circumstances, the State's cross-examination of
Feliciano and the CW's rebuttal testimony regarding the chair
incident were admissible to impeach Feliciano's credibility, to
rehabilitate the CW's credibility, and to provide the jury with a
fuller picture of the couple's relationship.
In addition, the evidence regarding the chair incident
helped to rebut Feliciano's self-defense justification. During
her opening statement, defense counsel asserted that on the night
the CW was struck, "[s]he was under the influence of various
substances[,]" and "was behaving aggressively." Defense counsel

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continued: "[Feliciano] was the one who was acting reasonably
that night. His actions were justified and they were permitted
under the law." (Emphasis added.) Similarly, in her closing,
defense counsel argued that the CW acted under "intoxication by
marijuana," and that Feliciano "ha[d] no obligation under the law
to stand there and take it." In this context, evidence of the
chair incident was probative of whether Feliciano, as he claimed,
could have reasonably believed that striking the CW was
immediately necessary for the purpose of protecting himself. See
supra.
Fifth, given Feliciano's denial of the chair incident,
the efficacy of alternative proof was low. In fact, it does not
appear there was any alternative proof available.
Sixth, the degree to which the evidence would rouse the
jury to overmastering hostility was low. The CW answered only a
single "yes" or "no" question regarding the chair incident; she
was not permitted to describe any resulting injury; and the chair
incident as briefly described appeared to have been less violent
than the present offense, and was thus unlikely to rouse the jury
to overmastering hostility. See, e.g., Richards, 879 N.W.2d at
152 ("the district court carefully circumscribed the scope of the
other acts testimony and thereby limited its potential
prejudicial impact" (citing State v. Rodriquez, 636 N.W.2d 234,
243 (Iowa 2001))).
Indeed, the testimony regarding the chair incident was
much narrower, and far less likely to engender ill will in the
jury, than the prior-bad-act evidence considered in State v.
Gallagher, 146 Hawai#i 462, 463 P.3d 1119 (2020). There, the
supreme court ruled that the trial court abused its discretion in
allowing the admission of four prior incidents that "involved
aggressive, obscenity-laden, and angry misconduct by [the
defendant] toward the [complaining witnesses,]" including
testimony regarding "specific details of each incident in which
[the defendant] had harassed the family[,]" as well as the
escalating nature of the incidents, the terror they engendered,
and the protective countermeasures they prompted. Id. at 470,
472, 463 P.3d at 1127, 1129. In analyzing the HRE Rule 404(b)

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factors, the court deemed the four prior incidents, which did not
involve property damage, only marginally probative of the
defendant's awareness or knowledge of the extent of damage his
actions would cause in the underlying offense, which involved
property damage to a vehicle. Id. at 472, 463 P.3d at 1129.
The court further found that the "extensive surrounding details
of the incidents," – in particular, "the recounting of the
[complaining witnesses'] ongoing fear of [the defendant]" – "had
no bearing on this issue." Id. Rather than present these
details, "the State could have elicited a much less elaborate
recounting of the prior incidents, greatly limiting testimony to
the aspects of the incidents that ostensibly bore on [the
defendant's] state of mind." Id. at 473, 463 P.3d at 1130; see
also id., 463 P.3d at 1130 ("the number of prior incidents should
have been limited to the minimum sufficient to obtain the
asserted probative value the conduct offered"). Ultimately, the
court concluded that "the number of prior incidents and the
involved circumstances had a high potential to rouse the jury to
overmastering hostility against [the defendant]." Id. at 474,
463 P.3d at 1131 (internal quotation marks omitted) (citing State
v. Behrendt, 124 Hawai#i 90, 106, 237 P.3d 1156, 1172 (2010)).
Here, in contrast, just one prior bad act – the chair
incident – was admitted into evidence, and that act, like the
present offense, involved domestic violence directed at the CW.
In addition, no prejudicial details (e.g., resulting injury to,
and fearful reactions by, the CW) were elicited. Rather,
consistent with the court's admonition in Gallagher, the State
elicited "a much less elaborate recounting of the prior
incident[]," which bore on the context of Feliciano and the CW's
relationship, and was probative of their respective credibility
during trial. See supra. In short, here, the narrow testimony
regarding the chair incident was higher in probative value, with
a much lower potential for prejudicial effect, than the prior-
bad-act evidence that was ruled inadmissible in Gallagher.
In addition, immediately before the CW's rebuttal
testimony regarding the chair incident, the Family Court gave the
jury a limiting instruction, which properly informed the jury

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that the evidence, if believed, could be considered only on the
issue of the parties' relationship, and must not be considered to
determine that Feliciano was a person of bad character. The jury
is presumed to follow the trial court's instruction, and the
limiting instruction served to mitigate any unfair prejudice
resulting from the evidence of the chair incident. See Locken,
134 Hawai#i at 381, 341 P.3d at 1181; see also Richards, 879
N.W.2d at 153 ("The district court followed 'the better practice'
and gave the jury a limiting instruction curtailing the danger of
unfair prejudice." (citing State v. Bayles, 551 N.W.2d 600, 608
(Iowa 1996))).
Feliciano argues that the limiting instruction was
"nullified" by another limiting instruction that the Family Court
provided in its final instructions to the jury before
deliberation. That instruction stated:
THE COURT: . . . You have heard evidence that the defendant
at another time may have engaged in other acts. This
evidence, if believed by you, may be considered only on the
issue of defendant's motive to commit the offense charged.
Do not consider this evidence for any other reason. You
must not use this evidence to conclude that because the
defendant at other times may have engaged in other acts that
he is a person of bad character and, therefore, must have
committed the offense charged in this case. In considering
the evidence for the limited purpose for which it has been
received, you must weigh it in the same manner as you would
all other evidence in this case and consider it along with
all other evidence in this case.

Feliciano contends that this "'motive' instruction," when read in
conjunction with the limiting instruction that was given before
the CW's rebuttal testimony, was confusing and misleading.
We note that Feliciano did not object to this
instruction during trial, and, on appeal, he does not assert any
alleged deficiency in the instruction as a point of error.13/ He
merely contends that it undermined the efficacy of the earlier
limiting instruction. We disagree.
Immediately prior to giving the "motive instruction,"
the Family Court provided the following instruction to the jury:
Several times during the trial, I've told you that
certain evidence was allowed in this trial for a particular

13/
Indeed, Feliciano requested that the Family Court's jury
instructions include Instruction 2.03, Other Crimes, Wrongs or Acts from the
Hawai#i Pattern Jury Instructions - Criminal.

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and limited purpose. When you consider that evidence, you
must limit your consideration to that purpose.
This instruction evoked the court's earlier limiting instruction,
given immediately before the CW's testimony regarding the chair
incident, which instructed the jury that evidence of Feliciano's
"other wrongs," if believed, could be considered only on the
issue of the relationship of the parties and not to determine
that Feliciano was a person of bad character.
In contrast, the subsequent "motive instruction"
referred to evidence that Feliciano may have engaged in "other
acts," which, if believed, could be considered only on the issue
of Feliciano's motive to commit the offense charged. We do not
read this instruction as referring to the "other wrong," i.e.,
the chair incident, about which the CW testified. There was also
testimony regarding other acts of Feliciano (e.g., an alleged
substance abuse problem) that may have been relevant to
Feliciano's motive or intent to commit the offense. The "motive
instruction" did not nullify the prior limiting instruction that
the Family Court gave to mitigate any unfair prejudice resulting
from the evidence of the chair incident.

III. CONCLUSION

Accordingly, we conclude that the Family Court did not
abuse its discretion in allowing the State (1) to cross-examine
Feliciano about the chair incident, and (2) to call the CW to
rebut Feliciano's testimony denying the chair incident. We
therefore affirm the Judgment of Conviction and Probation
Sentence, entered on June 2, 2017, in the Family Court of the
Third Circuit.
DATED: Honolulu, Hawai#i, August 31, 2020.

On the briefs:
/s/ Keith K. Hiraoka
William H. Jameson, Jr., Associate Judge
Deputy Public Defender
for Defendant-Appellant.
/s/ Clyde J. Wadsworth
Linda L. Walton, Associate Judge
Deputy Prosecuting Attorney,
County of Hawai#i,
for Plaintiff-Appellee.

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DISSENTING OPINION BY LEONARD, J.

Respectfully, I dissent. As discussed in the

Majority's disposition, Defendant-Appellant Allan Michael G.

Feliciano (Feliciano) contends that the Family Court of the Third

Circuit (Family Court) erred in allowing the State to adduce

evidence of a prior bad act that he allegedly committed in

February 2016 – eleven months prior to the alleged incident

underlying the abuse charge against Feliciano – when he allegedly

pushed his wife, the complaining witness (CW), out of a chair.

Roughly four months after the alleged chair incident, CW

temporarily moved out of the couple's home. After the Family

Court ruled that it would allow the State to ask Feliciano

whether CW moved out because he pushed CW out of a chair in the

prior February, he denied it. The State was then allowed on

rebuttal to ask CW whether she moved out because Feliciano pushed

her out of a chair in February of 2016, and she said yes.

I. The Opened-the-Door Rulings

In the first instance, the Family Court allowed the

alleged-chair-incident evidence to be introduced because

Feliciano "opened the door." The State made no argument just

prior to the Family Court's ruling, but subsequently argued that

it was calling CW in rebuttal for "the self-defense, whether or

not she was pushing him, and the chair incident." When

discussing the potential rebuttal testimony of CW, the court

stated: "So the only incident for which the prosecutor is going

to seek rebuttal is why she moved out and it is because of the
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chair because you raised that and he denied it, not any other

reasons." The prosecutor then clarified: "I'm not going to ask

her why she moved out at all. I'm going to ask her about the

chair incident." The Family Court later explained that the

alleged-chair-incident evidence was made relevant "because the

defendant testified on the relationship between the parties by

saying she used drugs or marijuana and that -- well, the

relationship was raised and that the inference also was left that

she moved out for different reasons." The Family Court further

stated that it had "also looked at the [Hawai#i Rules of Evidence

(HRE) Rule] 403 balancing factor[s], prejudicial versus

probative, and [found the alleged-chair-incident evidence to be]

more probative than prejudicial."

On appeal, as the Majority explains, the State argues

that Feliciano opened the door to the alleged-chair-incident

evidence by testifying that CW's marijuana usage had led to the

deterioration of their relationship.

Citing State v. Lavoie, 145 Hawai#i 409, 422, 453 P.3d

229, 242 (2019), the Majority recognizes that the opening-the-

door doctrine is a rule of "expanded relevancy." Under the

opening-the-door doctrine analyzed in Lavoie, when one party

introduces inadmissible evidence, that evidence may be countered

by inadmissible evidence from the opposing party. Id. (citing

State v. Fukusaku, 85 Hawai#i 462, 497, 946 P.2d 32, 67 (1997)).

The supreme court pointed out that this doctrine does not allow

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inadmissible evidence to be admitted to rebut inferences raised

by the introduction of admissible evidence. Id. at 422-23, 453

P.3d 242-43 (citation omitted).1

On appeal in this case, the State does not argue that

Feliciano introduced inadmissible evidence, and therefore opened

the door to the State's introduction of inadmissible evidence.

Instead, the State now argues that Feliciano's strategy was to

portray CW as a person of bad character, i.e., someone who smoked

a lot of marijuana and might have been unfaithful to her husband.

However, at trial, the fact that CW smoked marijuana was raised

in the State's direct examination of CW, where it was described

as medical marijuana for back pain. Similarly, the fact that

Feliciano found CW sleeping next to his friend was raised in the

State's direct examination of CW, where she explained that she

fell asleep on the couch first and only discovered the friend

next to her when Feliciano woke her up. On appeal, the State

further argues that Feliciano brought up the issue of the prior

separation to induce sympathy for him and to attack CW's

credibility. However, before the Family Court, the State posited

that "I'm not going to ask her why she moved out at all. I'm

going to ask her about the chair incident."

1
In Lavoie, the supreme court recognized that other jurisdictions
have held that admissible evidence that is false or misleading in isolation
may open the door to inadmissible evidence that clears up a false impression
or clarifies misleading evidence. 145 Hawai #i at 424, 453 P.3d at 244.
However, the supreme court in Lavoie further stated that it "may have
implicitly rejected [this proposition] in Fukusaku," before noting that such a
rule would not apply in the case before it even if the court were to adopt it.
Id. (citation omitted).

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The State cites State v. Kazanas, 138 Hawai#i 23, 375

P.3d 1261 (2016), for the proposition that the defendant in that

case opened the door to one incident of prior-bad-acts evidence

that was necessary to counter his testimony that he could not

have attacked the complaining witness because he was physically

unable to attack a person, i.e., Kazanas denied that he was the

attacker and therefore it was necessary to establish his identity

as the perpetrator. Here, however, Feliciano did not deny that

he struck CW; Feliciano testified that he struck CW prior to

Family Court's ruling on the alleged-chair-incident evidence.

Instead, he characterized his actions as self-defense.

Feliciano did state that he did not want CW to move out

and that she wanted to separate and she initiated the move-out.

This did not open the door to prior-bad-acts testimony, without

regard to the probative nature and prejudicial effect of the

testimony. The Family Court's explanation to the jury, that the

alleged-chair-incident evidence was to be considered "on the

issue of the relationship of the parties," is unrelated to any

purported opening by Feliciano that was countered or clarified by

the alleged-chair-incident evidence. Feliciano's testimony did

not open the door to an allegation that Feliciano committed

another act of abuse eleven months earlier, which allegedly led

to CW's leaving him four months later.

Finally, as noted above, Hawaii's opening-the-door

doctrine is a rule of expanded relevancy. Even if Feliciano's

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testimony made the reasons for CW's departure from the couple's

home more relevant pursuant to the opening-the-door doctrine,

absent clear precedent to the contrary, I cannot conclude that

the opening-the-door doctrine obviates the need to balance the

probative value of the evidence against its potential prejudice.2

The reason for CW's move-out was not a fact of consequence to the

determination of whether Feliciano committed the charged offense.

Thus, the admissibility of the testimony regarding Feliciano's

alleged prior bad act must be evaluated on its own merit pursuant

to HRE Rules 403 and 404(b).

II. HRE Rules 403 and 404(b)

Generally, under HRE Rules 401, 403, and 404(b),

evidence of a criminal defendant's prior bad acts is admissible

only where it is relevant and necessary to establish an element

of the State's case. See generally State v. Gallagher, 146

Hawai#i 462, 463 P.3d 1119 (2020). Relevance is defined in broad

terms as "evidence having any tendency to make the existence of

any fact that is of consequence to the determination of the

action more probable or less probable than it would be without

the evidence." HRE Rule 401. Evidence of a defendant's prior

bad acts "may [] be admissible where such evidence is probative

of another fact that is of consequence to the determination of

2
Although the Family Court later stated that the court balanced the
prejudicial nature of the alleged-chair-incident against its probative value,
the court allowed the State to pursue questioning in front of the jury about
whether CW moved out because of something Feliciano did to her, and then
whether he pushed her out of a chair because he was upset about something to
eat, before ruling on the issue of prejudice.

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the action, such as proof of motive, opportunity, intent,

preparation, plan, knowledge, identity, modus operandi, or

absence of mistake or accident." HRE Rule 404(b). Here, the

Family Court did not admit the prior-bad-acts evidence for any of

these purposes.

More importantly, prior-bad-acts evidence may not be

used to "prove the character of a person in order to show action

in conformity therewith." Id. Such 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." HRE Rule 403. Admissibility of prior-bad-acts evidence

is therefore limited and circumscribed by the demonstrable need

for such evidence. Gallagher, 146 Hawai#i at 472-73, 463 P.3d at

1129-30. This condition serves to protect a defendant from

improper jury bias and engendered hostility by limiting the

State's case to the bounds of facts that bear on the defendant's

culpability for the alleged crime at bar, rather than based on

considerations that are independent of the charged offense. Id.

at 481, 463 P.3d at 1138.

Determining whether to admit prior-bad-acts evidence

thus requires balancing the probative value and necessity of the

evidence to the State's case with its potential prejudicial

effect against the defendant. As the supreme court has held, and

repeatedly affirmed, this balancing test requires a trial judge

to consider the following factors:

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the strength of the evidence as to the commission of the
other crime, the similarities between the crimes, the
interval of time that has elapsed between the crimes, the
need for the evidence, the efficacy of alternative proof,
and the degree to which the evidence probably will rouse the
jury to overmastering hostility.

Id. at 470, 463 P.3d at 1127 (quoting State v. Behrendt, 124

Hawai#i 90, 106, 237 P.3d 1156, 1172 (2010) (quoting State v.

Renon, 73 Haw. 23, 38, 828 P.2d 1266, 1273 (1992))).

Fundamentally, these factors are to be "considered in light of

the purpose for which the evidence [is] offered." Id.

Turning to the case at bar, we analyze the Family

Court's application of the balancing test factors under the abuse

of discretion standard. See State v. Acker, 133 Hawai#i 253,

274, 327 P.3d 931, 952 (2014); see also Gallagher, 146 Hawai#i at

470, 463 P.3d at 1127. Where an abuse of discretion is found,

this court must vacate the defendant's conviction unless the

error is harmless beyond a reasonable doubt. See Gallagher, 146

Hawai#i at 470, 463 P.3d at 1127 (citation omitted).

In Gallagher, the defendant was charged and convicted

of criminal property damage in the second degree. Id. at 464,

463 P.3d at 1121. The alleged property damage occurred after a

"series of escalating events" involving four prior incidents of

"aggressive and erratic behavior by the defendant directed at the

complaining witnesses and their home." Id. at 464, 463 P.3d at

1121. Gallagher sought to exclude evidence of these prior bad

acts on the grounds that they were irrelevant and unfairly

prejudicial under HRE Rules 404 and 403. Id. at 469-70, 463 P.3d

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at 1126-27. On review, the supreme court held that the trial

court abused its discretion in admitting the evidence, concluding

that the "risk of unfair prejudice posed by the introduction of

the four prior incidents substantially outweighed their limited

probative value." Id. at 464, 463 P.3d at 1121. The Court

further held that the error was not harmless beyond a reasonable

doubt and therefore vacated the conviction. Id. at 481–82, 463

P.3d at 1138–39.

In this case, the disputed evidence adduced at trial is

purported to provide context about the relationship between

Feliciano and CW, in the lead up to the offense of Abuse of a

Family or Household Member, of which Feliciano was convicted.

The alleged-chair-incident evidence, although relevant to why CW

moved out, is also relevant to whether the parties had a frayed

and physically abusive relationship. Evidence concerning the

couple's relationship could bear on whether it was more or less

probable that Feliciano either struck CW in the face with his

fist on January 14, 2017, as CW testifed, or that Feliciano

slapped CW in self–defense on the morning in question.

Nevertheless, marginally probative evidence of prior abuse has a

great potential for unfair prejudice. See Lavoie, 145 Hawai#i at

426, 453 P.3d at 246 (in light of the stigma attached to domestic

abusers, evidence of prior abuse is highly likely to rouse a jury

to overmastering hostility against a defendant charged with

domestic abuse) (citations omitted).

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The first factor to be considered in determining

whether the Family Court abused its discretion in admitting the

alleged-chair-incident evidence is the strength of the testimony.

Unlike in Gallagher, where the offered testimony was a series of

escalating and undisputed events attested to by multiple

witnesses, Gallagher, 146 Hawai#i at 464, 463 P.3d at 1121,

Feliciano testified that the chair incident did not happen. CW's

testimony was quite narrow, attesting only that she moved out of

their home because Feliciano pushed her out of a chair in

February of 2016. This testimony is arguably weakened by the

delay between the alleged chair incident and her move out months

later. Although the testimony in question arguably falls within

the scope of its purpose of providing context regarding the

nature of the parties' relationship, it is in dispute and

uncorroborated, and it addresses an issue that is only

peripherally related to the alleged offense. See Lavoie, 145

Hawai#i at 426, 453 P.3d at 246 ("evidence of Lavoie's prior

abuse had little, if any, probative value as to his state of mind

at the time of the shooting or to its reasonableness"). The

strength of this evidence weighs against admittance.

Likewise, the alleged-chair-incident evidence relates

to an isolated incident that is separated by nearly a year from

the charged offense under consideration. In contrast, in

Gallagher, the four prior bad acts took place over a six-month

period culminating eleven days prior to the property damage at

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issue. See 146 Hawai#i at 471, 463 P.3d at 1128. Here, there

are no intervening events linking the two alleged acts. In fact,

the only thing that appears to link these events is that they

both involve allegations that Feliciano abused his wife. The

distance in time, and limited relevance (except for propensity,

of course), of the alleged-chair-incident evidence to the offense

thus limits the permissible probative value that can be derived

from admitting the testimony.

On the other hand, the similarities between Feliciano's

alleged actions cannot be overlooked. Pushing an adult out of a

chair is a physical and aggressive act, much like striking

someone in the face. While the effect or specific intent of a

slap or punch may differ in degree, the abusive quality is rather

similar.

Although similarity can be used to confirm identity or

establish voluntariness vis–à–vis common methodology, a close

connection in the nature of prior and current misconduct "may

also increase the likelihood that a jury will consider the

previous conduct to conclude that the defendant has a propensity

for committing such acts, which is a prohibited inference." Id.

at 472, 463 P.3d at 1129 (citing HRE Rule 404(b)); accord State

v. Murray, 116 Hawai#i 3, 20, 169 P.3d 955, 972 (2007). Where

identity, or another core issue, is not in dispute, such evidence

could confuse or mislead the jury. See Gallagher, 146 Hawai#i at

476, 463 P.3d at 1133. Even though the similar nature of the

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acts here suggests some probative value, prudential concerns

animating the prohibition on propensity evidence lead to the

conclusion that the alleged-chair-incident evidence is highly

prejudicial to Feliciano and militate against admission.

The fourth factor of the balancing test is the need for

the proffered evidence. Considering the permissible

consideration of the evidence, as explained to the jury – to

elicit context about the couple's relationship – it appears from

the record that ample evidence had already been introduced

regarding the frayed nature of the marriage and establishing that

Feliciano and CW had a difficult relationship. There was

evidence that Feliciano was critical of CW's marijuana

consumption; there was also evidence that CW was critical of

Feliciano's alcohol consumption. It does not appear to me that

there is a "demonstrable need to introduce evidence of prior bad

acts" to consider the issue of the relationship of the parties in

this case. See id. at 473, 463 P.3d at 1130. This factor weighs

against admittance.

I recognize that there was no alternative evidence of

Feliciano's alleged prior misconduct available to the jury to

negate the "necessity" of alleged-chair-incident evidence and the

Family Court allowed no prejudicial details of the alleged

earlier incident. Unlike in Gallagher, where there was lengthy

testimony, multiple witnesses, and photographical evidence of the

extent of the property damage, the permitted testimony was

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limited to Feliciano's denial that the incident took place and

CW's testimony that the incident was the reason that she moved

out. See id. at 474, 463 P.3d at 1131. This dearth of

alternative evidence weighs in favor of admitting the chair-

incident testimony.

The ultimate factor of the balancing test is whether

the evidence is highly prejudicial, often stated as whether the

evidence has "the potential to rouse the jury to overmastering

hostility" against a defendant. Id. at 470, 463 P.3d at 1127

(citation omitted). Evidence of prior bad acts can engender an

emotional response in the jury and tend to suggest decision on an

improper, often emotional, basis. This is the axiom of prejudice

prohibited by HRE Rules 403 and 404(b). See id. at 476–77, 463

P.3d at 1133–34. Here, although there was limited presentation

of a single prior bad act, CW's testimony retained the potential

to inspire ill–will and hostility toward Feliciano as an abusive

husband based on the prior alleged incident. The bare fact that

CW allegedly moved out of their home because of an alleged prior

incident of abuse carries a high risk of a prejudicial inference

that he did abuse her before and therefore he probably abused her

again. This is the prototype of propensity evidence that should

be allowed only when the probative value concerning an element of

the offense or the defendant's defense is high.

In light of these considerations, the potential for

unfair prejudice substantially outweighed the evidence's

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probative value and the Family Court abused its discretion when

it overruled Feliciano's objections and allowed the alleged-

chair-incident evidence.

The Family Court's limiting instruction attempted to

minimize the prejudicial effect of the alleged-chair-incident

evidence by limiting the jury's consideration to the rather vague

issue of "the relationship of the parties." While the Majority

disposition correctly cites Hawai#i cases holding that the jury

is presumed to follow the trial court's instruction, I conclude

that this vague instruction is prejudicially insufficient to

prevent the jury from, for example, concluding from the alleged-

chair-incident evidence that the relationship was an abusive one

and therefore Feliciano is more likely to have committed the

charged offense. This insufficiency was later compounded by the

Family Court's inconsistent and confusing instruction that the

evidence of the alleged-chair-incident evidence could be only

considered on the issue of the defendant's motive. When read and

considered as a whole, the Family Court's jury instructions

pertaining to the alleged-chair-incident evidence were

"prejudicially insufficient, erroneous, inconsistent, or

misleading." See generally State v. Nichols, 111 Hawai#i 327,

334, 141 P.3d 974, 981 (2006). On the record in this case, the

Family Court's jury instructions failed to mitigate the

prejudicial effect of the alleged-chair-incident evidence.

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Finally, it is necessary to consider whether the Family

Court's error was harmless beyond a reasonable doubt. The

harmless beyond a reasonable doubt standard requires us to

"examine the record and determine whether there is a reasonable

possibility that the error complained of might have contributed

to the conviction." Gallagher, 146 Hawai#i at 481, 463 P.3d at

1138 (citation omitted). Although the impermissible evidence at

issue here was limited, the fact remains that prejudice can

spring from even the smallest inference. On the other hand, the

undisputed evidence at trial included that Feliciano struck his

wife and the only disputed issue was whether it was abuse or

self-defense. It cannot be ruled out that, based on the alleged-

chair-incident evidence, the jury would have viewed Feliciano's

conduct as part of a pattern of abuse and convicted Feliciano out

of a desire to relieve CW of the burden of this hardship. Thus,

there is a real possibility that the error contributed to

Feliciano's conviction, and I cannot conclude that the error was

harmless beyond a reasonable doubt.

Accordingly, I would vacate the Family Court's June 2,

2017 Judgment and remand this case to the Family Court for a new

trial.

/s/ Katherine G. Leonard
Presiding Judge

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