In re: GH.

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Electronically Filed
Supreme Court
SCWC-XX-XXXXXXX
10-OCT-2022
07:59 AM
Dkt. 15 OP

IN THE SUPREME COURT OF THE STATE OF HAWAIʻI

---o0o---
________________________________________________________________

IN THE INTEREST OF GH
________________________________________________________________

SCWC-XX-XXXXXXX

CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-XX-XXXXXXX; CASE NO. FC-J 0105711)

OCTOBER 10, 2022

RECKTENWALD, C.J., NAKAYAMA, McKENNA, WILSON, AND EDDINS, JJ.

OPINION OF THE COURT BY McKENNA, J.

I. Introduction

This case arises from an adjudication of GH (“Minor”), a

teenager at the time, as a law violator by the Family Court of

the First Circuit (“family court”), for sexually assaulting the

complaining witness (“CW”), who was nine years old at the time

of the assault.

On certiorari, Minor alleges the Intermediate Court of

Appeals (“ICA”) erred by (1) affirming the family court’s
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exclusion, based on Rule 412 (2016) of the Hawaiʻi Rules of

Evidence (“HRE”), of Minor’s proffered extrinsic evidence of

CW’s past false sexual assault allegations; (2) concluding the

family court had not erred by failing to make a preliminary

determination as to the truth or falsity of CW’s past sexual

assault allegations, as required by State v. West, 95 Hawaiʻi

452, 24 P.3d 648 (2001); and (3) concluding there was sufficient

evidence to deem Minor a law violator.

We preliminarily address the untimeliness of Minor’s

certiorari application, which was filed more than eight months

after the ICA’s October 30, 2020 judgment on appeal. In State

v. Uchima, 147 Hawaiʻi 64, 464 P.3d 852 (2020), we held that a

defendant in a criminal case has the right to effective

assistance of counsel during all stages of an appeal, which

includes procedural compliance with the statutory requirements

for filing an application for writ of certiorari. 147 Hawaiʻi at

79, 464 P.3d at 867. We have also held that “[b]ecause

effective assistance of counsel is fundamental to a fair trial,

it should be guaranteed in juvenile law violator proceedings as

have other fundamental criminal case guarantees.” In re Doe,

107 Hawaiʻi 12, 16, 108 P.3d 966, 970 (2005). Hence, Uchima’s

holding applies to juvenile law violation cases.

Addressing the merits, we hold that (1) under the

circumstances of this case, it was an abuse of discretion for

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the family court to exclude the proffered evidence based on the

procedural notice requirements of HRE Rule 412; (2) as further

discussed below, if a defendant seeks to admit a complaining

witness’s false allegations of sexual assault, then

admissibility of such evidence is not subject to HRE Rule 412 or

West, 95 Hawaiʻi 452, 24 P.3d 648; and (3) Minor’s insufficiency

of evidence argument lacks merit.

We therefore vacate the ICA’s October 30, 2020 judgment on

appeal as well as the family court’s June 5, 2019 decree, July

23, 2019 order, and September 24, 2019 findings of fact and

conclusions of law. We remand to the family court for

proceedings consistent with this opinion.

II. Background

A. Family court proceedings

1. Charges

On February 5, 2019, the State of Hawaiʻi (“the State”)

filed six amended petitions against Minor1: one for first-degree

1 Minor comes within the purview of Hawaiʻi Revised Statutes (“HRS”) §
571-11 (2018), which states in relevant part:

Except as otherwise provided in this chapter, the court
shall have exclusive original jurisdiction in proceedings:

(1) Concerning any person who is alleged to have
committed an act prior to achieving eighteen years of
age that would constitute a violation or attempted
violation of any federal, state, or local law or
county ordinance.

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sexual assault,2 four for third-degree sexual assault,3 and one

for attempted first-degree sexual assault.4

2. Motion in limine and hearing on the motion

On February 8, 2019, the State filed a motion in limine

based on HRE Rule 4125 to prohibit the defense and witnesses from

referring to “[a]ny evidence, including but not limited to

reputation and/or opinion, relating to the past sexual history,

behavior and/or character of [CW].” At the time, trial was

scheduled for April 17, 2019. The State said it had reviewed

child welfare reports and believed Minor might attempt to

inquire into the past sexual history of CW in violation of HRE

Rule 412. Minor did not file a memorandum in response to this

motion. Minor also did not file any HRE Rule 412(c) notice or

2 HRS § 707-730 (2014) provided in relevant part: “(1) A person commits
the offense of sexual assault in the first degree if: . . . (b) The person
knowingly engages in sexual penetration with another person who is less than
fourteen years old[.]”

3 HRS § 707-732 (2014) provided in relevant part: “(1) A person commits
the offense of sexual assault in the third degree if: . . . (b) The person
knowingly subjects to sexual contact another person who is less than fourteen
years old or causes such a person to have sexual contact with the person[.]”

4 HRS § 705-500 (2014) provides in relevant part:

(1) A person is guilty of an attempt to commit a crime if
the person:
. . . .
(b) Intentionally engages in conduct which, under the
circumstances as the person believes them to be,
constitutes a substantial step in a course of conduct
intended to culminate in the person’s commission of
the crime.

5 See infra Section IV.B.1 for relevant portions of HRE Rule 412.

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motion regarding CW’s past sexual behavior allegations of sexual

assault by others.

Just before beginning the rescheduled June 4, 2019 bench

trial, the family court heard the State’s motion in limine. The

State indicated Minor might attempt to inquire into CW’s past

sexual history, which it said must be excluded under HRE Rule

412. Minor responded that although he would not offer evidence

of CW’s past sexual conduct, he would be going into accusations

she had made against others.

3. Bench trial

At trial, various witnesses testified. CW testified as

follows:

She was sexually assaulted by Minor when she was nine years

old. At the time, she lived with her mother and father, two

older sisters, the sisters’ boyfriends, and her little sister.

She met Minor as a friend of a neighbor with whom she often

spent time. She came to view Minor as an older brother, and

Minor often slept over at her house.

One night, Minor came into her room and sexually assaulted

her. CW described the assault in detail. Minor told her that

if she told anyone, something would happen to her. CW did not

speak about what happened until she told a hospital employee.

CW was later transferred into the care of a foster mother,

her aunt. Her aunt had a daughter, CW’s cousin, who was three

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years older. After moving in with her aunt, CW went to the

Children’s Justice Center (“CJC”) and spoke with an interviewer

about the sexual assault by Minor. She was later taken to a

doctor for a physical examination.

On cross-examination, Minor asked CW whether she had told

her cousin that her sister’s boyfriend had sexually assaulted

her. CW responded she had told her cousin that her sister’s

boyfriend would watch her when she slept, but denied saying he

had touched her sexually. Minor asked the same question

regarding CW’s father. CW responded she had only told her

cousin her father at times made her feel uncomfortable. Minor

also asked whether CW told her cousin that another cousin had

touched and raped her. The court sustained the State’s

objection to this question.

Minor then also asked whether CW had told her aunt she had

been sexually assaulted by her father. The State objected on

relevance and hearsay grounds. Minor responded he was

attempting to cross-examine CW regarding past false accusations

of sexual assault, stating “when the [CW] made a statement to

the police, she denied these false accusations.” The family

court concluded it would “allow some leeway” and permitted Minor

to ask CW whether she had told her aunt she had been sexually

assaulted by her father. CW again responded she had not said

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that her father sexually assaulted her, but that certain things

he did had made her uncomfortable.

Minor then attempted to adduce extrinsic evidence of CW’s

alleged false sexual assault allegations. Minor called CW’s

aunt as a witness and asked what CW had said about being

sexually assaulted. The family court sua sponte disallowed a

response on hearsay grounds.6 Minor then indicated he was ready

to call CW’s cousin to the stand to ask similar questions about

CW’s false allegations, but the family court disallowed any such

testimony.7

At the close of evidence, the family court ruled it had

properly excluded testimony from others concerning CW’s past

statements regarding other alleged sexual assaults because Minor

never filed a HRE Rule 412 motion with fifteen days’ notice

before trial. Minor argued that a HRE Rule 412 motion was not

necessary because the defense only intended to ask about false

accusations, not sexual behavior, but the family court

disagreed.

6 The anticipated evidence was not being proffered for the truth of the
matter asserted.

7
Minor also questioned Detective Cadiz, who had watched the CJC
interview through a window, about what CW had said. Defense counsel
attempted to elicit evidence that, contrary to her trial testimony, CW never
said that her father made her uncomfortable.

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4. Adjudication and sentence

The family court then adjudicated Minor a law violator on

one count of first-degree sexual assault and two counts of

third-degree sexual assault and dismissed the remaining counts

with prejudice. The family court committed Minor to the custody

of the Office of Youth Services for commitment to the Hawaiʻi

Youth Correctional Facility until age nineteen, with orders for

the Minor to be referred for behavioral services. On June 5,

2019, the family court filed its “Decree Re: Law Violation

Petition(s)” (“June 5, 2019 decree”).

5. Post-trial motions

On June 13, 2019, Minor moved for a new trial, arguing the

family court erred in precluding Minor from eliciting evidence

of CW’s false accusations of sexual assault by others. Citing

to West, 95 Hawaiʻi 452, 24 P.3d 648, Minor asserted such

evidence was not “sexual conduct” evidence under HRE Rule 412.

Minor also alternatively argued that, pursuant to West, the

family court erred in not making a preliminary determination as

to the falsity of CW’s prior allegations. Minor argued he would

have met his burden of proving that CW’s statements were false.

Minor also asserted that there were “prejudicial violations of

the Minor’s constitutional rights” and that he had been denied a

fair trial.

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On July 23, 2019, the family court affirmed its evidentiary

rulings based on Minor’s failure to file a HRE Rule 412 motion

before trial (“July 23, 2019 order”). The family court’s post-

appeal September 24, 2019 findings of fact and conclusions of

law stated (1) defense counsel never filed a HRE Rule 412 motion

before trial; (2) under West, 95 Hawaiʻi at 459, 24 P.3d at 655,

“where the truth or falsity of a statement regarding an

unrelated sexual assault is unknown, it falls within the purview

of the rape shield statute and must be analyzed accordingly”;

(3) defense counsel only asserted CW’s prior statements may have

been false; and (4) because the threshold of falsity was not

met, CW’s statements fell within HRE Rule 412 and were properly

excluded.

B. ICA proceedings

On appeal to the ICA, Minor argued the family court erred

because (1) evidence of CW’s prior inconsistent statements about

prior sexual assaults should have been admitted under HRE Rule

613(b) (2016);8 (2) CW’s allegations should not have been

excluded under HRE Rule 412 because West held that a complaining

witness’s false statements of prior unrelated sexual assaults

8 HRE Rule 613(b) provides:

Extrinsic evidence of prior inconsistent statement of
witness. Extrinsic evidence of a prior inconsistent
statement by a witness is not admissible unless, on direct
or cross-examination, (1) the circumstances of the
statement have been brought to the attention of the
witness, and (2) the witness has been asked whether the
witness made the statement.

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are not excluded by HRE Rule 412; (3) in any event, the family

court should have made a preliminary determination as to the

falsity of CW’s prior allegations based on West; and (4) there

was insufficient evidence that he was a law violator.

In its summary disposition order, the ICA held evidence of

CW’s past sexual assault allegations was inadmissible under HRE

Rule 412. The ICA concluded the family court did not err in not

making a preliminary determination as to the falsity of CW’s

allegations because Minor failed to comply with HRE Rule

412(c)’s written notice requirement. The ICA also held that

even though the family court had not made a preliminary

determination as to falsity, the family court could find in its

post-trial findings that falsity had not been shown.

Additionally, the ICA held CW’s inconsistent statements

inadmissible under HRE Rule 613 because HRE Rule 412, a law of

specific application, controls over HRE Rule 613, a law of

general application. Finally, the ICA held there was sufficient

evidence to support Minor’s adjudication as a law violator. The

ICA thus affirmed the family court’s June 5, 2019 decree and

July 23, 2019 order.

C. Supreme Court proceedings

More than eight months after the ICA’s October 30,

2020 judgment on appeal, Minor’s counsel filed an untimely

certiorari application. Defense counsel states, “Due to

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counsel’s error, an application for writ of certiorari was

not filed in a timely fashion in the above-entitled matter.

However, pursuant to the principles outlined in State v.

Uchima, . . . we ask that this court consider the arguments

and representations presented herein.”

III. Standards of review

A. Jurisdiction

The existence of jurisdiction is a question of law and is

reviewed de novo under the right/wrong standard. Lingle v. Haw.

Gov’t Emps. Ass’n, Local 152, 107 Hawaiʻi 178, 182, 111 P.3d 587,

591 (2005).

B. Admissibility of evidence
When application of a particular evidentiary rule can yield
only one correct result, the proper standard for appellate
review is the right/wrong standard. However, the
traditional abuse of discretion standard should be applied
in the case of those rules of evidence that require a
“judgment call” on the part of the trial court.

State v. Heggland, 118 Hawaiʻi 425, 434, 193 P.3d 341, 350 (2008)

(citation omitted).

C. Exclusion of admissible evidence

A trial court’s error in excluding evidence prejudicially

affects a defendant’s right to a fair trial and requires vacatur

unless the exclusion was harmless beyond a reasonable doubt.

See State v. Kato, 147 Hawaiʻi 478, 497, 465 P.3d 925, 944

(2020); State v. Abion, 148 Hawaiʻi 445, 448, 478 P.3d 270, 273

(2020).

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D. Statutory interpretation
The interpretation of a statute is a question of law
that this court reviews de novo. When construing a
statute, our foremost obligation is to ascertain and give
effect to the intention of the legislature, which is to be
obtained primarily from the language contained in the
statute itself. And we must read statutory language in the
context of the entire statute and construe it in a manner
consistent with its purpose.

Abion, 148 Hawaiʻi at 454, 478 P.3d at 279 (citations omitted).

E. Sufficiency of the evidence
Evidence adduced in the trial court must be considered in
the strongest light for the prosecution when the appellate
court passes on the legal sufficiency of such evidence to
support a conviction. The test on appeal is not whether
guilt is established beyond a reasonable doubt, but whether
there was substantial evidence to support the conclusion of
the trier of fact. Indeed, even if it could be said in a
bench trial that the conviction is against the weight of
the evidence, as long as there is substantial evidence to
support the requisite findings for conviction, the trial
court will be affirmed. Substantial evidence is credible
evidence which is of sufficient quality and probative value
to enable a person of reasonable caution to support a
conclusion.

State v. Xiao, 123 Hawaiʻi 251, 257, 231 P.3d 968, 974 (2010)

(cleaned up).

IV. Discussion

A. Uchima applies to juvenile proceedings

Minor’s certiorari application was filed approximately

eight months after the ICA’s judgment on appeal. Under HRS §

602-59(a) and (c) (2016 & Supp. 2017), however, a party has up

to thirty days after the ICA’s judgment on appeal or dismissal

order to file a certiorari application with this court. A party

may extend this deadline by an additional thirty days upon

written request. HRS § 602-59(c).

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In Uchima, 147 Hawaiʻi at 82, 464 P.3d at 870, we held this

court may “decline to dismiss an application for writ of

certiorari as untimely and proceed to review its merits when it

is plain from the record that defense counsel failed to comply

with the procedural requirements for filing the application.”

(Citation omitted). Uchima held that the Hawaiʻi Constitution

“guarantees a defendant in a criminal case the right to the

effective assistance of counsel on certiorari review in the same

manner that it does during all other critical stages of the

criminal proceedings.” 147 Hawaiʻi at 76, 464 P.3d at 864.

This court has also held that “[b]ecause effective

assistance of counsel is fundamental to a fair trial, it should

be guaranteed in juvenile law violator proceedings as have other

fundamental criminal case guarantees.” In re Doe, 107 Hawaiʻi

12, 16, 108 P.3d 966, 970 (2005). Hence, Uchima also applies to

juvenile law violation proceedings.

Here, defense counsel admitted ineffective assistance of

counsel, indicating in the certiorari application that “[d]ue to

counsel’s error, an application for writ of certiorari was not

filed in a timely fashion[.]” We therefore decline to dismiss

Minor’s certiorari application and now turn to its merits. We

address Minor’s questions on certiorari as follows.

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B. The proffered evidence should not have been excluded

At trial, Minor sought to introduce extrinsic evidence that

CW made false statements of sexual assault against others. The

family court and ICA held the proffered evidence inadmissible

based on HRE Rule 412, as applied by West, 95 Hawaiʻi 452, 24

P.3d 648.

1. HRE Rule 412’s plain language renders it inapplicable
to false allegations of sexual assault

HRE Rule 412 provides in relevant part as follows:

Rule 412. Sexual offense and sexual harassment cases;
relevance of victim’s past behavior.

(a) Notwithstanding any other provision of law, in a
criminal case in which a person is accused of a sexual
offense, reputation or opinion evidence of the past sexual
behavior of an alleged victim of the sexual offense is not
admissible to prove the character of the victim to show
action in conformity therewith.

(b) Notwithstanding any other provision of law, in a
criminal case in which a person is accused of a sexual
offense, evidence of an alleged victim’s past sexual
behavior other than reputation or opinion evidence is not
admissible to prove the character of the victim to show
action in conformity therewith, unless the evidence is:

(1) Admitted in accordance with subsection
(c)(1) and (2) and is constitutionally required to be
admitted; or

(2) Admitted in accordance with subsection (c)
and is evidence of:

(A) Past sexual behavior with persons
other than the accused, offered by the accused
upon the issue of whether the accused was or
was not, with respect to the alleged victim,
the source of semen or injury; or

(B) Past sexual behavior with the
accused and is offered by the accused upon the
issue of whether the alleged victim consented
to the sexual behavior with respect to which
sexual assault is alleged.

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(c)(1) If the person accused of committing a sexual
offense intends to offer under subsection (b) evidence of
specific instances of the alleged victim’s past sexual
behavior, the accused shall make a written motion to offer
the evidence not later than fifteen days before the date on
which the trial in which the evidence is to be offered is
scheduled to begin, except that the court may allow the
motion to be made at a later date, including during trial,
if the court determines either that the evidence is newly
discovered and could not have been obtained earlier through
the exercise of due diligence or that the issue to which
the evidence relates has newly arisen in the case. Any
motion made under this paragraph shall be served on all
other parties and on the alleged victim.

(2) The motion described in paragraph (1)
shall be accompanied by a written offer of proof. If
the court determines that the offer of proof contains
evidence described in subsection (b), the court shall
order a hearing in chambers to determine if the
evidence is admissible. At the hearing, the parties
may call witnesses, including the alleged victim, and
offer relevant evidence. Notwithstanding subsection
(b) of rule 104, if the relevancy of the evidence
that the accused seeks to offer in the trial depends
upon the fulfillment of a condition of fact, the
court, at the hearing in chambers or at a subsequent
hearing in chambers scheduled for this purpose, shall
accept evidence on the issue of whether the condition
of fact is fulfilled and shall determine the issue.

(3) If the court determines on the basis of
the hearing described in paragraph (2) that the
evidence that the accused seeks to offer is relevant
and that the probative value of the evidence
outweighs the danger of unfair prejudice, the
evidence shall be admissible in the trial to the
extent an order made by the court specifies evidence
that may be offered and areas with respect to which
the alleged victim may be examined or cross-examined.

. . . .

(h) For purposes of this rule, the term “past sexual
behavior” means sexual behavior other than the sexual
behavior with respect to which a sexual offense or sexual
harassment is alleged.

HRE Rule 412 prohibits evidence of a complaining witness’s

“past sexual behavior” in a criminal case in which a defendant

is charged with sexual assault when offered for certain

purposes. HRE Rule 412(h) defines “past sexual behavior” as

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“sexual behavior other than the sexual behavior with respect to

which a sexual offense or sexual harassment is alleged.”

State v. Kelekolio, 74 Haw. 479, 849 P.2d 58 (1993), noted

that although HRE Rule 412 does not define “behavior” as used in

the term “sexual behavior,” it “pertains to the admissibility of

the sexual assault victim’s past sexual conduct.” 74 Haw. at

521 n.19, 849 P.2d at 77 n.19 (cleaned up) (citing S. Stand.

Comm. Rep. No. 22–80, in 1980 Senate Journal, at 1034). We

pointed out that “conduct” means a “mode of action” or

“something done.” Id. (first quoting Conduct, Black’s Law

Dictionary (6th ed. 1990); and then quoting Action, Black’s Law

Dictionary (6th ed. 1990)). Hence, Kelekolio concluded that

false allegations of sexual activity do not fall under HRE Rule

412. See 74 Haw. at 521, 849 P.2d at 77.9

2. West

In West, defense counsel sought to introduce evidence

regarding a four-year-old’s statement that she had been sexually

9
In Kelekolio, the complaining witness had Down syndrome and functioned
at the cognitive level of a four- to seven-year-old. 74 Haw. at 486, 849
P.2d at 63. The defendant sought to introduce evidence that the complaining
witness habitually fantasized about sex, had previously reported sexual
encounters with an imaginary boyfriend, and had previously reported that she
was pregnant when she was not. 74 Haw. at 489-498, 849 P.2d at 64-68. The
defendant argued that if the complaining witness previously fantasized sexual
events, then the jury could find that she fantasized the alleged sexual
assault by the defendant. 74 Haw. at 520, 849 P.2d at 77.

Because the defendant had not presented an offer of proof explaining
that he was not seeking to adduce evidence of the complainant’s past sexual
behavior, however, this court affirmed the trial court’s exclusion of the
proffered evidence. 74 Haw. at 522-23, 849 P.2d at 78.

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assaulted by someone other than the defendant. 95 Hawaiʻi at

454-55, 24 P.3d at 650-51. Defense counsel sought admission of

the evidence, but indicated it was unclear whether the

statements of the four-year-old were true or false. 95 Hawaiʻi

at 455, 24 P.3d at 651.

West initially recognized cases holding that evidence of

false statements of unrelated sexual assaults are not excluded

by HRE Rule 412 because they are not evidence of sexual conduct.

95 Hawaiʻi at 457-58, 24 P.3d at 653-54. But we noted that

courts have made admissibility of sexual assault allegations

dependent on actual falsity and have required a threshold

determination regarding truth or falsity. 95 Hawaiʻi at 458, 24

P.3d at 654.10 We held that:

where a defendant seeks to admit allegedly false statements
made by a complainant regarding an unrelated sexual
assault, the trial court must make a preliminary
determination based on a preponderance of the evidence that
the statements are false. Correlatively, where the trial

10 Some states’ rape shield statutes specifically allow evidence of false
sexual assault allegations when the probative value of such evidence
outweighs potential prejudice. See ARIZ. REV. STAT. ANN. § 13-1421(A)(5) (2022)
(allowing evidence of “false allegations of sexual misconduct made by the
victim against others”); IDAHO R. EVID. Rule 412(b)(3) (2022) (allowing “false
allegations of sex crimes made at an earlier time”); MISS. R. EVID. Rule
412(b)(2) (2022) (allowing “ false allegations of sexual offenses made at any
time before trial by the victim”); OKLA. STAT. tit. 12, § 2412(B)(2) (2022)
(allowing “[f]alse allegations of sexual offenses”); VT. STAT. ANN. tit. 13, §
3255(a)(3)(C) (2022) (allowing “evidence of specific instances of the
complaining witness’ past false allegations of violations of this chapter”);
WIS. STAT. § 972.11(2)(b)(3) (2022) (allowing “[e]vidence of prior untruthful
allegations of sexual assault made by the complaining witness”).

Other states’ rape shield statutes do not specifically reference false
sexual assault allegations, and admission of such evidence appears dependent
on caselaw. See, e.g., Miller v. State, 779 P.2d 87 (Nev. 1989); Clinebell
v. Commonwealth, 368 S.E.2d 263 (Va. 1988).

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court is unable to determine by a preponderance of the
evidence that the statement is false, the defendant has
failed to meet [their] burden, and the evidence may be
properly excluded.

95 Hawaiʻi at 460, 24 P.3d at 656.

Hence, West conditioned admissibility of unrelated sexual

assault evidence upon compliance with HRE Rule 412 procedural

requirements even when the defense proffers the evidence based

on falsity. See id. In addition, West imposed a requirement on

trial courts to make a threshold determination as to truth or

falsity and expressly determine falsity before admitting any

such evidence. See id. We indicated we were doing so because

“to permit reception of evidence which may be true or false

would allow circumvention of the rape shield statute because the

jury may be tempted to consider evidence about an alleged

victim’s sexual conduct in order to determine the victim’s

credibility.” 95 Hawaiʻi at 459, 24 P.3d at 655 (cleaned up).

3. West’s procedural notice requirements have been
limited by Pond

Based on West, both the family court and the ICA concluded

that Minor’s failure to file a HRE Rule 412(c)(1) notice or

motion at least fifteen days before trial precluded him from

introducing extrinsic evidence of allegedly false allegations of

sexual assault CW had made to others.

Under the circumstances of this case, however, the

proffered evidence should not have been excluded based on HRE

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Rule 412. This is because the procedural requirements of HRE

Rule 412 have been limited by State v. Pond, 118 Hawaiʻi 452, 193

P.3d 368 (2008).

As noted, the State filed a HRE Rule 412 motion in limine

on February 8, 2019, more than two months before the then-

scheduled April 17, 2019 trial date. When the motion was filed,

it was scheduled to be heard on March 4, 2019. After the motion

in limine was filed, the trial date was continued to June 4,

2019. For some reason, the motion was never heard before the

June 4, 2019 trial date, although the motion was originally

scheduled to be heard well before trial and it appears there

were various pretrial conferences.

Pond, 118 Hawaiʻi 452, 193 P.3d 368, addressed HRE Rule

404(b)’s (2016) requirement that the proponent of “prior bad

act” evidence give “reasonable notice.” In doing so, we

discussed United States Supreme Court precedent regarding the

constitutionality of and reasons for notice requirements in the

context of rape shield statutes like HRE Rule 412:

The rape shield statute, designed to protect victims
of rape from being subjected to harassing or irrelevant
questions concerning their past sexual behavior, permits a
defendant to introduce evidence of [their] own past sexual
conduct with the victim if the defendant files a written
motion and an offer of proof within ten days after he is
arraigned. . . .

The Supreme Court recognized that the rape shield
statute implicates the sixth amendment and that, to the
extent that it operates to prevent a criminal defendant
from presenting relevant evidence, the defendant’s ability
to confront adverse witnesses and present a defense is

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diminished. This does not necessarily render the statute
unconstitutional. [The Court] observed that the
defendant’s right to present relevant evidence may, in
appropriate cases, bow to accommodate other legitimate
interests in the criminal trial process.

Pursuant to this rule, the Supreme Court recognized
the state’s interest in the policy underlying the rape
shield statute's procedural prerequisites—to
protect rape victims from surprise, harassment, and
invasions of privacy, and permit the prosecution to
investigate the evidence. . . . Based on its prior rulings
and the state’s interest in the rape shield statute, [the
Court] ruled that precluding evidence based on
the rape shield statute’s notice requirement is not per
se unconstitutional. However, it remanded the case to
determine whether the trial court abused its discretion by
precluding [the defendant’s] evidence.

Pond, 118 Hawaiʻi at 464-65, 193 P.3d at 380-81 (cleaned up).

Pond recognizes that although constitutional rights

implicated by a rape-shield statute are not automatically

violated by notice requirements, such notice requirements must

further “legitimate interests,” which are to “protect rape

victims from surprise, harassment, and invasions of privacy, and

permit the prosecution to investigate the evidence.” See id.

Pond also recognized that the notice requirement is subject to

an abuse of discretion review. See 118 Hawaiʻi at 461, 193 P.3d

at 377.

Whether or not HRE Rule 412 applies to false allegations of

sexual assault, under the circumstances of this case, it was an

abuse of discretion for the family court to exclude the

proffered evidence based on the procedural notice requirements

of HRE Rule 412. The State knew about the evidence and filed a

HRE Rule 412 motion in limine months before trial. The State’s

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motion and its arguments at the June 4, 2019 hearing indicate it

filed the HRE Rule 412 motion in limine because it had reviewed

the child welfare reports and was aware that evidence regarding

sexual assaults by others could be elicited by Minor. The State

was not surprised and was not precluded from investigating the

evidence it already knew. Thus, it was error to exclude the

evidence based on failure to comply with HRE Rule 412 procedural

notice requirements.

4. West must be clarified

Minor also challenges (1) the family court’s post-trial

determination that it had properly excluded the evidence because

Minor had failed to establish falsity as required by West; and

(2) the ICA’s ruling the family court could make that finding

even though the family court had not made a preliminary

determination as to falsity.

As discussed, West initially recognized that false

allegations of unrelated sexual assaults are not excluded by HRE

Rule 412. See 95 Hawaiʻi at 457-58, 24 P.3d at 653-54. Yet, in

addition to requiring compliance with HRE Rule 412 procedural

requirements, West held that “where a defendant seeks to admit

allegedly false statements made by a complainant regarding an

unrelated sexual assault, the trial court must make a

preliminary determination based on a preponderance of the

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evidence that the statements are false.” 95 Hawaiʻi at 460, 24

P.3d at 656.

This holding of West raises significant issues. As

recognized by Kelekolio and initially in West, false allegations

of sexual assault are not sexual conduct, which is the subject

of HRE Rule 412. West also implicates the constitutional rights

of criminal defendants.11 Additionally, as a practical matter, a

trial court may not be able to ascertain whether a complaining

witness’s allegations of sexual assault by others are true or

false. And even in a bench trial, as in this case, it can be

error for the court to reject evidence which, if admitted, would

present an essential factual issue for itself as the trier of

fact. See Abion, 148 Hawaiʻi at 448, 478 P.3d at 273.

11 Such rights include rights to confrontation, cross-examination, and to
present a complete defense, which also apply to minors in juvenile
proceedings. For example, we have noted:

HRE 412 cannot override the constitutional rights of the
accused. Under sections 5 and 14 of Article I of our State
Constitution, appellant’s right of confrontation includes a
right to appropriate cross-examination of the complaining
witness.

State v. Calbero, 71 Haw. 115, 124, 785 P.2d 157, 161 (1989).

For adults, the constitutional right to a jury trial may also be
implicated. For example, we have stated:

The rule requiring the submission of factual determinations
to the jury if there is any evidence upon which the jury
may act is based on the principle that credibility of
witnesses and weight of the evidence are for the jury to
decide. The court should not invade the jury’s province of
making factual determinations.

State v. Riveira, 59 Haw. 148, 154, 577 P.2d 793, 797 (1978) (citation
omitted).

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This case is an example of the difficulty of applying West.

We therefore revisit and clarify West as follows: If a

defendant seeks to admit a complaining witness’s false

allegations of sexual assault, then admissibility is not subject

to HRE Rule 412 or West. Defendants seeking to admit such

evidence must make it clear the evidence is being proffered for

its falsity. We do not address the applicability of other rules

of evidence, including HRE Rule 403 (2016).12 A court must also,

however, consider the constitutional rights of the defendant.13

When a defendant seeks to admit evidence of sexual assault

allegations based on their truth or where truth or falsity is

unclear, the admission of such evidence is subject to HRE Rule

412. However, we abrogate West’s requirement that the trial

court make a preliminary determination based on a preponderance

of the evidence that the statements are false before allowing

admission. For such evidence, HRE Rule 412 explicitly requires

compliance with HRE Rule 412(c) procedural requirements as well

as consideration of a defendant’s constitutional rights. See

HRE Rule 412(b)(1). HRE Rule 403 considerations also come into

12 HRE Rule 403 provides, “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.”

13 See supra note 11.

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play, but are also subject to a defendant’s constitutional

rights.

If any evidence of a complaining witness’s allegations of

sexual assault by others is admitted in jury trials, the court

should give appropriate limiting instructions.

In this case, Minor proffered extrinsic evidence that CW

had made false statements of sexual assault against others. For

the reasons explained above, we hold that this evidence was not

subject to HRE Rule 412 or West.14 The exclusion of the evidence

proffered in this case was not harmless beyond a reasonable

doubt. Minor’s adjudication as a law violator must therefore be

vacated.

C. The insufficient evidence argument is without merit

Finally, in a conclusory fashion, Minor asserts that there

was insufficient evidence for the family court to adjudicate him

a law violator. Appellate challenges to the sufficiency of

evidence must always be decided. State v. Davis, 133 Hawaiʻi

102, 116, 324 P.3d 912, 926 (2014).

Viewing the record in the light most favorable to the

State, there was sufficient evidence to support the family

14 The foundational requirements of HRE Rule 613(b) had been met. See
supra note 8. The issue of whether any of the proffered evidence could or
should have been excluded based on HRE Rule 403, consistent with Minor’s
constitutional rights, is not before us.

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court’s adjudication of Minor as a law violator on Counts 1,2,

and 4. This argument on certiorari is devoid of merit.

V. Conclusion

Hence, we vacate the ICA’s October 30, 2020 judgment on

appeal as well as the family court’s June 5, 2019 decree, July

23, 2019 order, and September 24, 2019 findings of fact and

conclusions of law. We remand to the family court for

proceedings consistent with this opinion.

Walter J. Rodby /s/ Mark E. Recktenwald
for petitioner
/s/ Paula A. Nakayama
Brian R. Vincent
for respondent /s/ Sabrina S. McKenna

/s/ Michael D. Wilson

/s/ Todd W. Eddins

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