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Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
23-FEB-2021
07:51 AM
Dkt. 43 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
STATE OF HAWAI#I, Plaintiff-Appellee, v.
RICKY R. KUSUMOTO, also known as Ricky R.S. Kusumoto,
Defendant-Appellant
APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT
HONOLULU DIVISION
(CASE NO. 1DCW-XX-XXXXXXX)
SUMMARY DISPOSITION ORDER
(By: Hiraoka, Presiding Judge, and Wadsworth and Nakasone, JJ.)
Defendant-Appellant Ricky R. Kusumoto, also known as
Ricky R.S. Kusumoto (Kusumoto), appeals from the Judgment and
Notice of Entry of Judgment, entered on March 15, 2019, in the
District Court of the First Circuit, Honolulu Division (District
Court).1/ Following a bench trial, Kusumoto was convicted of
Terroristic Threatening in the Second Degree (TT2), in violation
of Hawaii Revised Statutes (HRS) § 707-717(1).2/ He was sentenced
1/
The Honorable Philip Doi presided.
2/
HRS § 707-717(1) (2014) provides:
A person commits the offense of terroristic
threatening in the second degree if the person commits
terroristic threatening other than as provided in section
707-716 [Terroristic threatening in the first degree].
HRS § 707-715(1) (2014) states, in relevant part:
A person commits the offense of terroristic
threatening if the person threatens, by word or conduct, to
cause bodily injury to another person . . . :
(1) With the intent to terrorize, or in reckless
disregard of the risk of terrorizing, another
person[.]
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to one year of probation with conditions that included a 60-day
jail term.
On appeal, Kusumoto contends that: (1) it was plain
error to admit testimony from the complaining witness (CW) that
Kusumoto killed her rabbit; and (2) Kusumoto's trial counsel
(defense counsel) provided ineffective assistance by failing to
properly object to the CW's testimony about the rabbit and by
asking Kusumoto about the rabbit on direct examination.
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 resolve
Kusumoto's contentions as follows.
I. BACKGROUND
The TT2 charge stemmed from an incident in which
Kusumoto allegedly threatened to kill the CW, his girlfriend.
Although the CW recanted at trial, her original statement about
the incident is summarized in a police report signed by the CW on
December 15, 2018, at 10:31 a.m., which describes the following
events:
On December 15, 2018, the CW woke up Kusumoto at 7:30
a.m. to tell him she was going to return to her house and would
be back in a few days. Kusumoto responded, "If you leave I'll
kill you." Kusumoto then grabbed a knife and approached the CW
on the bed saying, "You're not leaving." The CW got up to leave,
but Kusumoto swung the knife at the CW and cut her nose. The CW
pushed Kusumoto away and left the room. The CW explained that
they were arguing about money, and that she felt afraid and
"serious that [Kusumoto] would kill" her, and she left the house
and called the police.
At trial on December 26, 2018, the CW recanted,
testifying instead that she used the knife to slice her own nose
to frame Kusumoto. In light of the recantation, on January 1,
2019, the State filed a notice of intent to use evidence of
Kusumoto's "other crimes, wrongs or acts" (Notice). Through the
Notice, the State sought to offer evidence of several alleged
instances of prior acts of abuse by Kusumoto, each documented by
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a separate police report.3/ The Notice stated in part: "This
evidence is offered pursuant to Hawai#i Rules of Evidence (HRE)
Rules 403, 404(b), 608, 609, 613(b), and 802.1(1), State v.
Clark, 83 Hawai#i 289, 926 P.2d 194 (1996), and State v. Eastman,
81 Hawai#i 131, 912 P.2d 57 (1996), as evidence of the context of
the relationship between [Kusumoto] and [the CW] to explain [the
CW's] recantation at trial." While the Notice described the
prior acts of abuse in some detail, it did not identify or
describe any incident in which Kusumoto allegedly killed the CW's
rabbit.
Trial continued on March 15, 2019, at which time the
State played recordings of the CW's December 15, 2018 911 phone
call and her interview with police that same day. The State also
questioned the CW about the police reports identified in the
Notice, including a report she made regarding an incident on
May 24, 2018. During her testimony regarding this incident,
which follows, the CW stated that Kusumoto had killed her rabbit:
Q [by the State] Okay. And in that [police] statement
you noted that you thought that [Kusumoto] thought you were
flirting with men, but you were taking pictures of your
rabbit. Do you recall making that statement?
A Yes.
Q And was that statement true?
A Yes.
Q Okay. So that part of the statement was true?
A Yes.
Q Okay. So he did think that you were flirting with
men?
A Yes.
Q But you were --
A Yes.
Q -- taking pictures of your rabbit?
A Huh?
Q You were taking photographs of your rabbit?
A Yes.
3/
The memorandum accompanying the Notice also sought to introduce
the CW's 911 recorded phone call and a recorded interview with police about
the December 15, 2018 incident, as substantive evidence of Kusumoto's guilt.
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. . . .
Q Okay. And how old is your rabbit now?
A He would be three today.
Q What do you mean by "would be"?
A Um, [Kusumoto] killed him[.]
Defense counsel did not object to the latter two
questions or move to strike the CW's answers.
On redirect examination, the State asked the CW about
the rabbit again, at which point defense counsel objected "as to
relevance." The District Court overruled the objection in the
following exchange:
Q [by the State] You know, when I was asking you about
the incident that occurred on the beach, May 24, 2018, you
talked about your rabbit.
A Yes.
Q And at one point you said that [Kusumoto] killed
your rabbit?
A Yes.
Q Can you talk about that? What happened?
[Defense Counsel]: Your Honor, I'm gonna object to
this as to relevance. This is -- this case isn't about a
rabbit.
[State]: It is about the credibility of this
witness.
THE COURT: Okay. Um, overruled.
Q BY [the State]: What happened with the rabbit?
A Well, he gave me two stories.
Q What were they?
A He said he snapped his neck was the first story.
Q Okay. And the second?
A And then the second story was he threw him against
the wall.
Q Did he say why?
A Because he was mad at me.
Q And why was that?
A Because I didn't come home.
(Emphasis added.)
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When the defense presented its case, Kusumoto testified
on direct examination about the December 15, 2018 incident as
follows: He awoke and found three piles of feces from the dogs,
so he asked the CW to help him clean it up, but she refused
because she wanted to get coffee. Kusumoto "lost it" when the CW
said she was going home and would not get him coffee. However,
he did not threaten to kill the CW and did not cut her with a
knife.
Defense counsel also questioned Kusumoto about the
rabbit, as follows:
Q [by Defense Counsel] So let's talk about the -- the
rabbit briefly. Okay?
A Yeah.
Q So–
A That -- that -- she broke my heart. She broke up
with me, and I just took it out on the rabbit, you know.
Hey, man, I feel -- I couldn't live with myself. I -- I
talked to -- other mental health workers up at Diamond Head
Mental Health Clinic. I go there. And I talked to them,
spill my guts that I couldn't live with myself. Over there
too, I couldn't live with myself. Even to this day, you
know, I go in the backyard just to look at the burial plot.
So I see the rocks there. I --
Q Okay.
A I think about the moment that I lost it. It's not
-- it wasn't healthy.
Q Okay.
A Did --
A And I don't ever want to go that far ever again.
Q Do you regret?
A I regret.
During closing arguments, the State did not mention the
rabbit. However, defense counsel briefly stated that Kusumoto
"was straight up about killing [the CW]'s rabbit when he was
angry."
II. DISCUSSION
Kusumoto contends that the testimony regarding "the
killing of the rabbit" (the rabbit testimony) was inadmissible
because it was irrelevant under HRE Rule 401, more prejudicial
than probative under HRE Rule 403, and improper character
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evidence under HRE Rule 404. He also argues that the
State failed to give reasonable notice that it intended to offer
such evidence at trial, as required by HRE Rule 404(b).
In Clark, the Hawai#i Supreme Court held:
[W]here the complaining witness recants his or her pre-trial
accusation [of abuse] against the defendant, evidence of
prior acts of domestic violence involving the complaining
witness and the defendant is admissible, subject to the HRE
[Rule] 403 balancing test, to show the jury the context of
the relationship between the victim and the defendant, where
the relationship is offered as a possible explanation for
the complaining witness's recantation at trial.
83 Hawai#i at 303, 926 P.2d at 208. See State v. Asuncion, 110
Hawai#i 154, 165-66, 129 P.3d 1182, 1193-94 (App. 2006) (evidence
of prior acts of domestic violence was admissible where the
defendant's girlfriend recanted a portion of the statement she
gave to police regarding abuse by the defendant).
The State contends that the rabbit testimony, like the
evidence of prior domestic abuse in Clark, was admissible "to
show CW's relationship with Kusumoto as a possible explanation
for her recanting at trial." More specifically, the State
argues:
CW's testimony that Kusumoto killed her rabbit because he
was mad that she did not come home makes the fact that CW
was in an abusive relationship with Kusumoto more probable.
The context of that relationship makes it more probable that
CW would recant her original report to protect Kusumoto from
being convicted.
While this argument is consistent with the reasoning in Clark, it
does not by itself establish the relevance of the CW's testimony
as to Kusumoto's "two stories" about how he killed the rabbit, or
the basis for the admissibility of that testimony under HRE Rule
404(b).
Moreover, the State does not adequately explain its
alleged failure to comply with the notice requirement of HRE Rule
404(b) with respect to any of the rabbit testimony. This issue
is dispositive. HRE Rule 404(b) provides that, "[i]n criminal
cases, the proponent of evidence to be offered under [HRE Rule
404(b)] shall provide reasonable notice in advance of trial, or
during trial if the court excuses pretrial notice on good cause
shown, of the date, location, and general nature of any such
evidence it intends to introduce at trial." (Emphasis added.)
See State v. Pond, 118 Hawai#i 452, 462–67, 193 P.3d 368, 378–83
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(2008) (concluding that the notice requirement of HRE Rule 404(b)
"protects parties and the jury trial system from falling prey to
opposing counsel's trial tactics and strategies that do not
promote a fair trial.")
Here, following the CW's recantation during trial, the
State gave notice of its intention to offer evidence of prior
acts of domestic violence by Kusumoto. The Notice expressly
stated that the evidence was offered pursuant to, among other
things, HRE Rule 404(b) and Clark, "as evidence of the context of
the relationship between [Kusumoto] and [the CW] to explain [the
CW's] recantation at trial." On appeal, the State argues that
the rabbit testimony was relevant and admissible on the same
basis.4/ See supra; see also Clark, 83 Hawai#i at 299-303, 926
P.2d at 204-08 (analyzing proffered evidence of prior acts of
domestic violence under HRE Rules 403 and 404(b)). Yet the
Notice did not say that the State intended to offer evidence
about Kusumoto killing the CW's rabbit. Thus, the rabbit
testimony should not have been admitted into evidence under HRE
Rule 404(b).
The District Court, however, admitted the rabbit
testimony without any objection from the defense on this ground,
i.e., lack of notice.5/ We therefore review the admission of the
rabbit testimony for plain error. See Hawai#i Rules of Penal
Procedure Rule 52(b). The supreme court has summarized the plain
error standard as follows:
It is firmly established that the relevant inquiry
when evaluating whether a trial court's plain error may be
noticed is whether the error affected substantial rights.
Thus, a reviewing court has discretion to correct plain
error when the error is not harmless beyond a reasonable
doubt.
. . . .
4/
The State also argues that the rabbit testimony was separately
admissible as evidence of the character of a witness, i.e., the CW, under HRE
Rule 404(a)(3), which does not contain a notice requirement. However, in the
District Court, the State did not offer evidence of Kusumoto's prior acts of
domestic abuse under HRE Rule 403(a)(3) and, given the circumstances, we
decline to recognize the rabbit testimony as evidence of the CW's character.
See Pond, 118 Hawai#i at 468, 193 P.3d at 384.
5/
In fact, the defense did not object to the rabbit testimony on any
ground when it was first elicited. See supra.
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. . . If there is a reasonable possibility that the
error contributed to the conviction, the error is not
harmless beyond a reasonable doubt, and the conviction must
be set aside.
State v. Ui, 142 Hawai#i 287, 297, 418 P.3d 628, 638 (2018)
(citations, footnotes, and internal quotation marks omitted;
emphases added).
Following closing arguments, the District Court found
Kusumoto guilty of TT2. In rendering its decision, the District
Court stated, in relevant part:
[A]s both sides have argued, the -- it comes down to the
credibility of the witnesses as many cases do.
. . . .
. . . Mr. Kusumoto said, well, that's when he lost it,
when he, uh, noticed the dog feces, uh, which I can
understand. That's -- that's not what you want to wake up
to. Uh, but [the CW] never mentioned the dogs or any dog
feces. Uh, it seems a little odd to me that the thing that
started the argument at 6:30 or so in the morning, uh, is
not mentioned at all.
. . . [M]y impression of the testimony is in line with
what [the State] has argued, uh, that, uh, [the CW's]
recantation of her report as evidenced by the interview with
Detective Mikki appears to be an afterthought. The . . .
original recitation of the events,[ ]description of the
events made on December 15th, and, uh, and then recorded in
. . . Exhibit No. 2 . . . also on December 15, 2018, uh,
appear to be the accurate -- appear to me to be the accurate
renditions of the -- of the events and I am convinced beyond
a reasonable doubt that the State has proven its case.
(Emphasis added.)
Thus, the District Court's determination of Kusumoto's
guilt "c[ame] down to the credibility of the witnesses." While
the District Court did not expressly mention the rabbit testimony
in this context,6/ that testimony appears to have been offered
6/
Following Kusumoto's conviction, the District Court briefly
referred to the rabbit testimony in sentencing Kusumoto. Specifically, after
Kusumoto asserted that he was "not really a hostile guy," the District Court
stated, in relevant part:
All right. Well, uh, okay. I mean . . . there's been
no dispute regarding the fact that you may have some anger
issues. You've said that yourself.
. . . [A]s far as hostility goes . . . taking your
anger out on the rabbit does seem to be a bit extreme. . .
on the other hand . . . your past criminal record does not
indicate, uh, a great deal. Uh, yes, motions to revoke
probation, but we don't know the -- one was dismissed and we
don't really know the disposition of the other and we don't
(continued...)
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under HRE Rule 404(b) and Clark to explain the CW's recantation
at trial. See supra. In addition, when defense counsel raised a
relevance objection to the second instance of the rabbit
testimony, the District Court overruled the objection following
the State's assertion that "[i]t is about the credibility of this
witness." On this record, we conclude there is a reasonable
possibility that the error in admitting the rabbit testimony
contributed to Kusumoto's conviction. Therefore, the error was
not harmless beyond a reasonable doubt and the conviction must be
set aside. See Ui, 142 Hawai#i at 297, 418 P.3d at 638; State v.
Jones, 148 Hawai#i 152, 171, 468 P.3d 166, 185 (2020).
Given our conclusion, we do not reach Kusumoto's second
issue on appeal.
Therefore, the Judgment and Notice of Entry of
Judgment, entered on March 15, 2019, in the District Court of the
First Circuit, Honolulu Division, is vacated and this case is
remanded for a new trial before a different judge.7/
DATED: Honolulu, Hawai#i, February 23, 2021.
On the briefs: /s/ Keith K. Hiraoka
Presiding Judge
Jonathan Burge
for Defendant-Appellant.
/s/ Clyde J. Wadsworth
Sonja P. McCullen, Associate Judge
Deputy Prosecuting Attorney,
City & County of Honolulu,
for Plaintiff-Appellee. /s/ Karen T. Nakasone
Associate Judge
6/
(...continued)
know the reasons why.
. . . Um, but I will agree with [the State] that it
is a serious situation. I understand you disagree with my
decision, . . . and that's fine.
. . . [S]o I don't think the one year is appropriate
based upon your prior record . . . you say you are
undergoing counseling or [defense counsel] echoed that. Um,
I'm going to say 60 days in jail.
7/
Although we believe the District Court could be fair, under the
circumstances, we conclude "the appearance of justice would be better served
if this case were remanded to a different judge." State v. Domut, 146 Hawai #i
183, 195, 457 P.3d 822, 834 (2020); see State v. Stanley, 110 Hawai #i 116,
129, 129 P.3d 1144, 1157 (App. 2005).
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