State v. Behrendt

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IN THE SUPREME COURT OF THE STATE OF HAWAfI

---o00---

STATE oF HAWAI‘I,
Respondent/Plaintiff-Appellee,

manual

VS.

'1€ =HH‘F 61 SHVG¥@Z

ROBERT JAMES BEHRENDT aka RUNNING BEAR,
_ Petitioner/Defendant-Appellant.

NO. 2919l

CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CR NO. 07-1-OO61K) '

AUGUST l9, 2010

NAKAYAMA, DUFFY, AND RECKTENWALD, JJ.;
WITH ACOBA, J., DISSENTING

OPINION OF THE COURT BY RECKTENWALD, J.

also known as Running Bear,

MOON, C.J.,

Defendant Robert Behrendt,
was convicted of sexual assault for conduct involving Sl, a minor

under the age of l6. We must decide whether evidence of sexual

contacts between Behrendt and SI that occurred prior to the

conduct charged in this case was admissible under HawaFi Rules

cited infra. F0r the

of Evidence (HRE) Rules 404(b) and 403,

reasons set forth below, we conclude that the Circuit Court of

the Third Circuit1 did not err in admitting that evidence.

SI grew up in Kona, HawaFi, but moved to South Dakota

when she was ll to live with Behrendt and her sister, LI, who was

1 The H0norab1e Elizabeth A. Strance presided.

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married to Behrendt. The evidence presented by the State of
Hawafi at trial established that after SI arrived in South
Dakota, Behrendt suggested that SI shower with him when they were
alone. SI refused initially, but subsequently agreed. Behrendt
had SI touch him sexually during these showers, and also touched
SI. Eventually, they began to have intercourse, and Behrendt
told SI not to tell anyone. SI, who was confused and frightened
by what was happening, complied with that request.

When SI was l4, she returned to Kona with Behrendt and

LI. Behrendt and SI continued to have sexual relations. SI
eventually broke off her sexual relationship with Behrendt, but
did not report it to police until more than a year later.
Behrendt was subsequently indicted for three counts of sexual
assault in the first degree`in violation of HawaFi Revisedv
Statutes (HRS) § 707-730(l)(c) (Supp. 20O6)2 for the conduct
which occurred in Kona. The indictment grouped the three counts
based on the time periods in which SI lived at three different
houses in Kona: (l) Count l: the Kamani Trees house, covering the
period from September 2002 through February 2003, (2) Count 2:
the Aloha Kona house, covering the period from February 2003
through May 2004; and (3) Count 3: the Pumehana house, covering

the period from May 2004 through August 2004. Behrendt was also

2 HRS § 70'7~730(1) (c) (Supp. 2006) provides that a person engages in
first degree sexual assault when " [t]he person knowingly engages in sexual
penetration with a person who is at least fourteen years old but less than
sixteen old; provided that: (i) The person is not less than five years older
than the min0r; and (ii) The person is not legally married to the minor;

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indicted for kidnapping in violation of HRS § 707-720(l)(d) & (e)
(l993)3 (Count 4) with respect to an incident that occurred in
January 2005.

Behrendt moved in limine to exclude testimony
concerning the instances of sexual contact that occurred while SI
was living in South Dakota.4 The circuit court held that the
evidence was probative of motive, opportunity and plan, and that
its probative value was not outweighed by its prejudicial effect.
A jury found Behrendt guilty of the lesser included offense of
sexual assault in the third degree in violation of HRS § 707-732
(Supp. 20O6)5 on Counts l~3, and the lesser included offense of
unlawful imprisonment in the first degree in violation of HRS §
707-721 (l993)5 on Count 4. In a summary disposition order

(SDO), the Intermediate Court of Appeals (ICA) affirmed the

3 HRS § 707-720(1) (l993) provides, in relevant part, that “[a]
person commits the offense of kidnapping if the person intentionally or
knowingly restrains another person with intent to: . . . (d) Inflict bodily
injury upon that person or subject that person to a sexual offense; (e)
Terrorize that person or a third person; .”

4 There was also some evidence of sexual contacts which occurred
while SI was traveling with LI and Behrendt elsewhere on the mainland,
including washington state. For ease of reference, we will refer to these
events collectively as the South Dakota evidence.

5 HRS § 707-732(l)(c) (Supp. 2006) provides that a person engages in
third degree sexual assault when “[t]he person knowingly engages in sexual
contact with a person who is at least fourteen years old but less than sixteen
years old; provided that: (i) The person is not less than five years older
than the minor; and (ii) The person is not legally married to the minor;

ll

5 HRS § 707-721 (1993) provides, in relevant part, that “[a] person
commits the offense of unlawful imprisonment in the first degree if the person
knowingly restrains another person: (a) Under circumstances which expose the
person to the risk of serious bodily injury; or (b) In a condition of
involuntary servitude.”

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convictions on Counts l, 2, and 4, but vacated the conviction on
Count 3 because the circuit court did not properly instruct the
jury on the law applicable to Count 3 at the time of the offense.

In his application for a writ of certiorari
(application), Behrendt argues that the circuit court erred in
admitting the South Dakota evidence. However, we agree with the
circuit court that the evidence was probative of Behrendt's
opportunity to commit the offenses in HawaFi without being
detected. Moreover, the circuit court did not abuse its
discretion in determining that the admission of the evidence
would not unduly prejudice Behrendt.

Behrendt also argues that the circuit court erred in
instructing the jury on the lesser included offense of sexual
assault in the third degree, and that there was insufficient
evidence to support the convictions on Counts 1-3 because the
evidence referred only to sexual penetration, rather than sexual
contact. However, for the reasons set forth below, we reject
those arguments. 2

Accordingly, we affirm the ICA's November 24, 2009
judgment.

I . BACKGROUND
A. Pre-trial Proceedings Regarding Other Acts Evidence

The State filed a Notice of Intent to Use Specified

Evidence, to “give[] notice that the State intends to present

evidence relating to [Behrendt's] pattern of threats to [SI], and

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the grooming and ongoing nature/length of their relationship."
The State attached police reports that contained allegations off
sexual contacts in South Dakota. In response, Behrendt filed a
motion in limine, arguing that the evidence was inadmissible
under HRE Rules 40l, 403 and 404. He also asserted that SI was
fabricating the allegations because Behrendt and LI were in the
middle of a divorce and custody dispute over their daughter.

The circuit court granted Behrendt's motion without
prejudice, explaining that the State did not clearly identify all
the prior bad act evidence it intended to offer in its case-in-
chief or explain how it was relevant, and did not analyze the
balancing of probative value versus prejudicial effect.

The State filed an amended notice and motion to _
reconsider. The State included detailed descriptions of the
expected testimony of each proposed witness, and argued that the
evidence of the prior acts was relevant “to show the defendant's
motive, purpose and intent; to show opportunity; and to show why

[SI] did not, for years, disclose the abuse.” .Additionally, the

State explained why each witnesses' testimony was relevant, and

analyzed its admissibility under HRE Rule 403. Behrendt filed an
opposition arguing, inter alia, that “there are 23 months of
context in Hawaii, which is abundantly sufficient to establish

COD.C€XC . ”

The circuit court granted in part and denied in part

the State's motion for reconsideration. The circuit court

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rejected the State's argument that prior bad act evidence is
always relevant to explain the context of the relationship
between the defendant and complaining witness, and concluded that
the expected testimony of two of the State's witnesses7 was not
admissible because the probative value did not outweigh the
prejudicial effect and the State's offer of proof was vague and

cumulative. The circuit court’s order additionally provided, in

relevant parts

The court grants that portion of State's Motion
to Reconsider admission of testimony concerning “other
acts” that allegedly occurred outside of the State of
Hawaii as follows. The Court concludes that the issue
of “delayed reporting” is squarely before the jury, as
well as possible issues of consent concerning the
kidnapping charge. The Court finds that the “other bad

acts” allegedly committed outside of the State of

Hawaii as described b SI LI and LI's friend
Trista], are relevant to show motive, opbortunitv and
plan,

The court having concluded that the testimony is
relevant, next balances whether relevant evidence
should be excluded because its probative value is
substantially outweighed by other factors, including
danger of unfair prejudice, confusion of issues or
misleading the jury, pursuant to Rule 403, [HRE].

Specific factors that the court has considered
in the Rule 403 analysis in deciding whether to admit
“other acts”, include the strength of evidence of the
prior act, the time elapsed between the prior and
[sic] crimes charged, the need for the other acts,
efficacy of alternative proof, and whether the other
acts are likely to raise overmastering hostility. Ihe
Court concludes that the prejudice of admitting the
testimon of SI LI and LI's friend Trista
does not outweigh the relevance, and that a cautionary
instruction ameliorates any prejudice.

III. OTHER BAD ACTS OCCURRING IN HAWAII.

The court finds that most of the witnesses who

7 The witnesses, cousins of SI and LI, were expected to testify that
Behrendt, SI, and LI “visited them in 2002 before their return to Hawaii, and
[Behrendt] seemed unusually physical with [SI.]”

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will testify to the relationship between the defendant
and the complaining witness will present testimony
that could be considered “other bad acts”. Many are
family and friends who may have been in close contact
with the defendant and minor, several living in the
same household. Some of the testimony describes acts,
such as holding hands and kissing, that could be
considered either innocent or a “bad act”.

The court finds and concludes that the testimony
of the following witnesses concerning “other acts” or
“bad acts” that happened in Hawaii is relevant to
motive, opportunity, intent and plan[.] The court
further finds that the probative value is not
“substantially outweighed” by other factors, including
danger of unfair prejudice, confusion of issues or
misleading the jury. The court finds that a
cautionary instruction ameliorates any
prejudice,

(Emphases added).
B. Tria1

The relevant evidence at trial was, in summary, as
follows. 3

1. State's Case
a. SI's Testimony
(l) South Dakota

In November of 1999, when SI was eleven years old, she
moved out of her parents' home in Kona and went to live with LI
and Behrendt in South Dakota.8 SI testified that in South
Dakota, Behrendt would take her to school every day, pick her up
in the afternoon and take her back to the apartment, and they
would talk and play video games while LI was still at work.
Behrendt would talk with SI about “other boys” and said,

“[y]ou'll soon have a boyfriend.” After living there for a few

8 Behrendt is twelve years older than SI, and LI is eleven years
older than SI.

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months, SI and Behrendt went to the pool one day, and when they
got home “[Behrendt] asked [her] to take off [her] clothes, and
[] take a shower together[,]” but SI refused. The next time they
went to the pool, however, Behrendt told SI that “it was okay”
for her to shower with him and that he had asked LI and that “she
said it was okay.” After that, SI “trusted him” and showered
with Behrendt while both of them were naked, and “[Behrendt]
would be erect sometimes, and he would tell me to grab onto him,
grab onto his dick.” SI testified that their showers eventually
progressed to the point where Behrendt would touch SI's genitalia

and insert his penis into her genitalia, She was afraid to tell

him no “[b]ecause he was an adult” and had told her that “it was

okay.” SI testified that she and Behrendt also had “sexual
contact” elsewhere in the apartment, and that Behrendt showed SI
a videotape of pornography. SI testified that they had sex
“[o]ften” in South Dakota, and that she remembered it being more
frequent than when they later returned to HawaiH~

During the first few months of these sexual encounters,
SI “felt like [she] loved [Behrendt] as a brother. But then [she]
just . . . knew that there was something wrong. But [she] was
confused” and would “push[] him off a lot” and “be rude to him.”
SI also testified that after about the tenth time she and
Behrendt had sex, he told her not to tell LI and that if she told
“he would end up going to jail.” _SI testified “it seemed like

[Behrendt] was changing it to be like a relationship” and “was

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thinking of [her] as a girlfriend” but that she was annoyed by it
and “didn’t want him.”

SI also recalled a time when she attended a going~away
party at the home of LI's friend Trista, and she and Behrendt
were sitting outside when a boy walked by whom SI identified as
her “boyfriend” and this made Behrendt “mad.” Later on she and
Behrendt went into the bathroom together, and he kissed her, He
said, “[l]et's do it inside the bathroom,” but SI told him no.
Behrendt “got upset” and “ended up head-butting the wall[.]”

SI testified that she did not confide in her sister
when they lived in South Dakota because she “was scared” and

“[LI] always seemed happy, so I also felt guilt that I would have

'ruined her life.” SI recalled that LI had asked her if Behrendt

was touching SI like their uncle had,9 but SI just shook her head
and said nothing.
(2) Return to Hawaii
Behrendt, LI and SI returned to Hawafi in September

2002, when SI was fourteen years old. SI testified that around
that time, she started “liking [Behrendt], because he was there
for [her]” and they had a “[f]riendship” where SI “told him
everything[,]” he bought her things and would stick up for her.

SI was home schooled in HawaiHq and Behrendt was the only person

- 9 SI testified that when she was in 3rd or 4th grade, she told a
teacher at school that her uncle had molested her when she was four or 'five.
LI also testified that the same uncle molested LI when LI was six. After SI
was molested, SI received counseling.

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SI got along with because her family “was broken apart” and
“didn’t get along.”

(a) Kamani Trees §Count 11
SI, Behrendt and LI moved into the Kamani Trees house,

along with SI's parents, her older brother (Brother) and
Brother's children. During this time, SI slept in the same bed
as LI and Behrendt. SI and Behrendt continued to have sexual
intercourse approximately three to five times per month in both
the bedroom and the bathroom. SI specifically recounted the
first time they had intercourse at Kamani Trees, in which
Behrendt “turned [her] around and [] had sexual intercourse with
[her] in the back[,]” while LI slept next to them. SI also

testified that they also had oral sex “[a]nytime [they] would

have sexual intercourse[,]” where she “would just lick him or []"

would suck on his dick.”

(b) Aloha Kona house §Count 21

SI, Behrendt, and LI next lived at the Aloha Kona house
from February 2003 until April or May 2004, with SI's parents,
Brother and Brother's children. SI's bedroom consisted of a
curtained-off area of the living room. Behrendt would come into
her bedroom early in the morning, SI would braid his hair, she
and Behrendt would talk and he would tell SI “[h]ow much he loved
[her].” They continued to have sexual intercourse once or twice
a week in SI's curtained-off room and sometimes in the bedroom

Behrendt and LI shared. Behrendt would also drive SI to.a nearby

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construction site and they had sex in the back of the car.
SI and LI hardly spoke because they “were fighting
[for] attention from Bear” and “[LI] had a feeling of something
that was going on between the two of us.” Behrendt, who was of
Native American ancestry, told SI to call him “[h]igna[,]” which
was the Lakota name for husband. Behrendt told SI that in his
Lakota culture, “they had two wives” who were sisters. SI felt
“like that [Behrendt] could be my husband. That I loved him, And
I was confused.”
After living in the Aloha Kona house, SI moved with her

parents, LI and Behrendt to a house on Painted Church Road in
Kona, and she and Behrendt had sexual intercourse in one of the

rooms of the house.

(c) Pumehana House (Count 3)

In May 2004, when SI was fifteen years old, LI,

Behrendt, and SI moved into the Pumehana House, along with SI and
LI's parents, Brother, and Brother's children, and lived there
until November 2004. SI and Behrendt continued to have sexual
intercourse about once a month. Again, a curtained-off area
served as SI's bedroom, and SI continued to braid Behrendt's hair
and then he would want to have “a quickie or something.” They
would also have sex in rental cars from Behrendt's workplace,
SI's mother’s car, and once at a storage place nearby where
Behrendt had SI “bent over the back seat[.]” Also, about one

month before SI's sixteenth birthday, Behrendt took her in a

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rental car to a construction site in Kaloko, they had sexual
intercourse} and Behrendt asked her if she wanted to have anal
intercourse and she “[s]hrugged.” Behrendt then “attempt[ed] it”
and “put his penis in [her] anal, [her] butt.”

(d) Gabby's House & Crazy Horse Apartments

SI testified that four or five months after she turned
sixteen, she moved out of the Pumehana house and in with a
friend, Gabby, and Gabby's father for a few months until her
“family drama” cooled down. At this time, LI moved to the
mainland, and Behrendt moved out of the Pumehana house and into
the Crazy Horse Apartments in Kona. SI moved in with Behrendt,
and started dating a boy named Brandon. She and Behrendt had
arguments about Brandon because “[Behrendt] didn't want [her] to
be going out with [him].”

(e) Januar 17 2005 incident Count 4

SI testified that she had a disagreement with Behrendt
on January l7, 2005 in the Crazy Horse apartment after Sl told
him that she didn't want to have sex with him anymore because she
was dating Brandon. SI tried to get out of the apartment but
Behrendt “pulled [her] back and threw [her] to the ground” and
“straddled [her] down.” SI screamed and tried to break free, but
Behrendt told her to “[b]e quiet[,]” slapped her on the face and
arm, “unZipped himself and [] took out his penis[,]” and told SI
he was going to get her pregnant. SI eventually ran out of the

apartment, but Behrendt brought her back. They got into

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Behrendt's car and continued to struggle, and Behrendt slapped
her. SI testified that she was scared that Behrendt may kill
her. Finally, Behrendt dropped SI off at Gabby's house, SI
called Brandon to pick her up, and Brandon's parents called the
police.

SI testified that the police arrived a day and a half
later in response to SI being reported a runaway, and took SI to
the station. She told police Behrendt hit her and that she had
bruises on her arm and her ribs hurt, but did not tell them about
their sexual relationship because she “didn’t want him to go to
jail.”

(f) Alleged abuse reported

On March 22, 2006, Behrendt came into Jamba Juice where
SI worked, and when SI saw him, she became upset. SI's boss
asked her what was wrong, and SI told her about her sexual
history and relationship with Behrendt. SI next told LI, who
went to the police. 3

b. LI's TestimonyN

(l) South Dakota
m Prior to LI's testimony, which preceded SI's testimony, the

circuit court gave the following cautionary instruction:

Ladies and gentlemen of the jury, you are about to
hear evidence that the defendant may have engaged in
other crimes, wrongs, or acts. You must not use this
evidence to determine that the defendant is a person
of bad character and, therefore, must have committed
the offenses charged in this case. Such evidence may
be considered by you only on the issues of defendant's
motive; opportunity, and intent and for no other
purpose.

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LI testified that Behrendt would spend time with SI at
home until LI returned from work each day, Behrendt told LI that
he took showers with SI at their apartment, and LI told him “it
was inappropriate for him to be doing that with her.” Behrendt
responded that “it was okay.” LI also observed SI and Behrendt

“horse-playing around” one day at their apartment:

[SI] ended up underneath him, and he was on top of
her, with - you know, just the way how they were like
looking at each other like made me kind of feel
uncomfortable and that he was like - the way how he
was stroking her hair back just made me very
uncomfortable like, you know, why are they acting like

that towards each other, you know.

LI did not confront Behrendt about this incident
because she “was scared.”

LI recounted a time when they went to a party at her
friend Trista's house and Behrendt “all of a sudden [] just kind
of got upset” and was acting “really jealous.” Then he and SI
went upstairs to the bathroom for about thirty minutes. After

they came out, LI noticed that there was a hole in the wall in

the bathroom, that SI had “a red mark” that “looked like a

,hickey” and was “very upset.” LI confronted Behrendt about it

and he told her that “he accidentally grabbed [SI] by the
neck[.]”

LI also recalled an incident when they were on their
way back to HawaFi and staying at a cousin’s house in
Washington. LI testified that LI, Behrendt and SI were sleeping

next to each other on the floor one night, and SI and Behrendt

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. . . started acting kind of weird with each
other. So I kind of stayed up so where to see how they
would act towards each other. And during this night I
heard - it was pitch black, and I heard him say get on
top. And she's like, no. And I was just wondering like
what are they talking about, you know.

And then I saw her on top. And then I was like,
what are they doing, you know. In my mind I was
thinking like why are they - what are they doing, you
know. And so - and then all I hear her say was ouch.
And I'm like, What's going on? So I put my arm around
him, and so - and all he could do was like just move
my arm[.]

LI did not confront Behrendt because she “was scared of
the fact of what was happening” and “didn’t know what to do at
that time[.]” LI confronted SI the next morning, but SI told‘her
that nothing was going on.

LI further testified that SI would call Behrendt higna,
which meant husband in Lakota. When.LI talked to Behrendt about
his interactions with SI, he would yell at her and tell her that
she was “selfish” and “a bitch for interfering.” LI testified
that “[Behrendt] told me a long time ago that when he gets
married to me or if I had a sister or someone younger than I am,
he would take ‘em as a wife.”

(2>

LI testified that when she and Behrendt lived at the
Kamani Trees house, SI would sleep in bed with them. “[Behrendt]
was starting to act very jealous” and he and SI were always
together and “were still taking showers together.” ,When LI
talked to Behrendt about taking showers with SI, “he got upset
with me and grabbed me by the arm and started shaking me and

telling me I was selfish and I was ruining everything [that] he

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wanted to do. And I was interfering with both of them.” LI also
noticed that “[t]hey started kissing” and “[Behrendt] started
holding her hand, putting his arms around her and, you know, just
like a boyfriend and girlfriend[.]” LI testified that when she

asked him about it,

He just told me that he - you know, it was his culture
and that I was ruining his culture because he's Native
American. And that in the mainland, they used to do
that all the time, that they used to hold hands and
nobody said anything. And now that we moved down here,
that everybody's saying something and, you know, it
was wrong for them to do it.

When they moved to the Aloha Kona house, sometimes LI
would wake up early in the morning and Behrendt would be in SI's
curtained-off bedroom, Behrendt told her that SI was braiding
his hair, Also, Behrendt would get upset when she or others in

her family would “say something to him about how he was acting

. towards fSI].”

When they moved to the Pumehana house, Behrendt and SI
“got closer” and “[h]e was always around her all the
time, . . . you couldn't separate them.” They also “started
wearing rings together.” LI and Behrendt had a daughter in June
2004, and Behrendt told LI that “he wanted SI to be called mom
also.” LI tried to get Behrendt to move to the mainland, but he
did not want to move unless SI moved with them.

In November 2004, LI moved to Washington and lived with
her cousin for a few months. LI returned to Hawafi on 2
January ll, 2005, and moved back in with Behrendt on the 23rd.

Behrendt told LI that he and SI had gotten in a fight about

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something when they were in the car and that he hit her with the
back of his hand. After LI moved in, she never saw SI with
Behrendt.

LI testified that SI told her about her sexual
relationship with Behrendt in March 2006, and LI called the
police. Afterwards, LI and her daughter moved back to the
Pumehana house.

c. h Testimony of Dr. A1exander Bivens

Dr. Alexander Bivens, Ph.D., testified for the State as
an expert in the area of child and adolescent psychology, with a
specialization in child sexual abuse. He testified that it is
typical for a child who has been sexually abused to wait a very
long time to tell anyone about it,“ especially when they are
assaulted by a family member,n and identified the methods
typically used by an abuser to gain the trust of the child.
These methods include spending a lot of time with the child,
giving them attention, touching them non-sexually, telling them
they are special, treating them like an adult, or tricking them

into feeling safe with the abuser. Dr. Bivens also testified

/

n Dr. Bivens indicated that the reasons a child may not disclose the
abuse include: “fear for their own safety,” feeling “ashamed” or “blam[ing]
themselves,” “trying not to think about the abuse,” feeling like reporting
would not help to end the abuse, or a fear of the “impact on their family.”

n Dr. Bivens testified that a brother-in-law living in the same home
with, and abusing, the child victim would be considered an incest situation.

He further indicated that some abusers sexually assault the child with another'

non~collaborating adult present in the same bed because “[i]t help[s] the
molester feel like a big guy, to be able to get away with it” or because they
are “so sexually compulsive that they couldn't keep themselves from doing it.”

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about four “primary processes” abusers utilize: (l) seduction and
testing, which “involves taking normal adult-child touch, which
would be a hug, a kiss, that sort of affectionate touching,

and slowly incorporating sexual touch”; (2) masking sex as

a game, such as wrestling or tickling; (3) emotional-verbal
coercion, in which the abuser talks about sex overtly or rewards
for having sex, or tells the child that he or she will avoid
punishment for other acts if the child has sex with the abuser;
and (4) taking advantage of the child in a vulnerable position,
such as approaching a child who is sleeping or who has just taken
a bath.

d. State's other witnesses

The State's other witnesses included a nurse who
examined Behrendt in order to confirm testimony by SI that
Behrendt had a distinctive freckle and unusually thick
circumcision scar on his penis.- 1

2. Defense Case

1 a. Behrendt's testimony

Behrendt denied having had any sexual interactions with

' SI. He “loved [SI] like a daughter” and “considered her [his]

_child.V He would kiss SI (“a peck”) like he used to do with his

family. Behrendt testified that when SI lived with him and LI in
South Dakota, he would take her to and from school each day and
help her with her homework when they got home. He and LI would

take SI to the pool and LI always took SI to the girls' showers.

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Behrendt never took SI to the pool by himself, and the only time
he showered with SI was at the beach in HawaFi with their
swimsuits on.

Behrendt testified that he and LI decided to move back
to Hawaifi in the summer of 2002 to start a family. At the going
away party at Trista's house, SI got upset after a boy walked by
and went upstairs to the bathroom. He and LI went upstairs
together to talk to her, and then Behrendt went back downstairs
and LI stayed with SI. Trista later called them about a small
hole in her bathroom wall, and even though Behrendt did not know
how it got there, he fixed it for her.

Behrendt testified that when they returned to Hawafi,
they moved in with SI and LI's family, who was “like their own
group” and “did their own thing.” LI braided his hair until
their daughter was born, and then SI took over. Behrendt would
wake up at four in the morning for work, he would go into SI's
room, “open up the curtains, sit down on the bed” and SI would
braid his hair for ten minutes and then he would leave for work.
He denied ever having a “romantic liaison” with SI or ever,
telling his daughter to call SI “mom.”

Behrendt testified that in August or September 2004, he
and LI discussed moving to Washington, but he did not want to go
because he didn't have any money because “[LI] cleaned out” his
bank account. Behrendt was “stressing out” because their

“marriage [was] falling apart[,]” and “was extremely upset when

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[LI] left.f After LI moved out, her parents told him to leave
their house. Behrendt then lived in his car for about a month,
and moved into the Crazy Horse apartment on December l7, 2004.

Behrendt testified that SI never lived with him at the
Crazy Horse apartment, and that he had never given her a key to
the apartment, SI was dating Brandon at the time, and Behrendt
was never jealous of Brandon. On January 15 or l6, 2005, LI and
their daughter moved in with Behrendt, along with Behrendt's
sister. Behrendt testified that he received a phone call from SI
on January ll, 2005, they had a conversation, he talked to LI
about it, and then he went back to sleep.

After his rental agreement terminated in June 2005,
Behrendt moved to another place, and LI moved in with her
parents, He and LI agreed that their marriage was over, and in
November 2005, Behrendt started seeing another woman.

/b. Other Defense witnesses'

The defense called several other witnesses, including
Behrendt's mother and two sisters (one of whom lived with SI, LI,
and Behrendt for eight months in South Dakota), who testified
that they did not notice anything unusual about the way Behrendt
treated LI or SI. Rather, Behrendt treated SI like his little
sister and hugged and kissed her like he did with all his
siblings. One of his sisters also testified that she had found
portions of SI's journal which described some sexual incidents

between SI and Behrendt at the Aloha Kona house, and that SI

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subsequently told her that she made it all up to hurt LI.
Additionally, a friend of Behrendt's testified that she became

friends with SI, and that in November 2O06L SI told her that she

,had lied in court about having sex with a guy named Running Bear.

C. Jury Instructions and verdict
1. Jury Instructions
At the conclusion of trial, the circuit court
instructed the jury with regard to the prior bad act evidence as

follows:

You have heard evidence that the defendant at
another time, may have engaged in other wrongs or
acts. You must not use this evidence to determine
that the defendant is a person of bad character and
therefore must have committed the offenses charged in
this case. Such evidence may be considered by you

only on the issue of the defendant's motive,
opportunity, or intent and for no other purpose.

(Emphasis added).

The circuit court also instructed the jury on the
offense of sexual assault in the first degree, HRS § 707-
730(l)(c), and the lesser included offense of sexual assault in
the third degree, HRS § 707-732(l)(c). Defense counsel did not
object to giving the lesser included offense instruction, but did
object that the instruction did not correctly set forth the state
of mind requirement.

After the jury began its deliberations, it sent the
circuit court the following question: “What purpose do we put to
the evidence and testimony from S. Dakota[?]” The circuit court

responded by referring the jury to the instruction involving the

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prior bad act evidence referenced above.
2. verdict and motion for judgment of acquittal

The jury returned a verdict finding Behrendt: (l)
guilty of the lesser included offense of sexual assault in the
third degree on Counts l, 2, and 3; and (2) guilty of the lesser
included offense of unlawful imprisonment‘in the first degree,
HRS § 707-72l, on Count 4.

Behrendt filed a Motion for Judgment of Acquittal and a
Motion for New Trial, arguing that there was no evidence
presented of “sexual contact” between Behrendt and SI with
respect to Counts 1-3, but rather only “sexual penetration.” The
circuit court denied the motion.

On April 16; 2008, the circuit court filed its
Judgment, Guilty Conviction and Sentence, sentencing Behrendt to
five years imprisonment.
D. ICA Appea1

On appeal to the ICA, Behrendt raised eight points of
error (only three of which are raised in his current
application): (l) that the circuit court erred in admitting
character evidence in violation of HRE Rules 404(b) and 403; (2)
that the circuit court erroneously admitted Dr. Bivens' expert
testimony; (3) that the circuit court erred in permitting LI to
testify regarding entries in her diary and in admitting her diary
into evidence; (4) that the circuit court erred in refusing to

stay the trial for one day due to the birth of Behrendt's child;

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(5) that the circuit court erred in instructing the jury on the
lesser included offense of sexual assault in the third degree for
Counts 1, 2, and 3 since there was no reasonable basis in the
evidence to justify giving the instruction; (6) that the circuit
court erred in providing the jury with an incorrect definition of

“sexual contact” as to Counts 1, 2 and 3; (7) that there was

'insufficient evidence to support Behrendt's conviction for sexual

assault in the third degree; and (8) that the circuit court's
inclusion of the phrase “exact date is not required” in the jury
instructions with regard to the incidents charged in Counts 1-4
amounted to plain error. '
In its November 4, 2009 SDO, the ICA rejected

Behrendt's argument with respect to prior bad act evidence, and

concluded that:

[] The circuit court properly admitted evidence
of Behrendt's prior bad acts under HRE Rule 404(b) as
evidence of delayed reporting, preparation, planning,
and common scheme. Delayed reporting was an issue of
consequence in the trial because [SI’s] silence over a
two-year period of sexual abuse raised a serious issue
as to her credibility. Additionally, Behrendt
insinuated that [SI] conveniently came forward to help
[SI’s] sister [] win custody of [LI] and Behrendt's
child from Behrendt.[n] The prior-bad-act evidence
also explained a unique household dynamic that helped
the trier-of-fact understand allegations of abuse in
Hawaii in general. The evidence was therefore
relevant for a purpose other than mere propensity.

The circuit court's limiting instructions on the
admission of this prior-bad-act evidence ameliorated
any prejudice it may have created. we accordingly
find no abuse of discretion.

n This is an apparent reference to defense counsel’s closing
argument, in which counsel suggested that SI and LI had lied about the
incidents of sexual contact between SI and Behrendt so LI could obtain custody
of her daughter.

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(Citations omitted);

The ICA additionally rejected each of Behrendt's
remaining points of error, with the exception of his sixth point
regarding the definition of “sexual contact.” Specifically, the
ICA recognized that the definitions of “sexual contact” and
“sexual penetration” had been amended effective May lO, 2004, and
therefore, as to Count 3, the circuit court had provided the jury
with the pre-amendment definitions. The ICA held that this error
was not harmless, and therefore vacated Behrendt's conviction
with’respect to Count 3. The ICA concluded that there was
sufficient evidence to prove that Behrendt engaged in “sexual
contact” as to Count 3, and therefore remanded for a new trial on
that count .14

The IOA filed its judgment on November 24, 2009, and
Behrendt timely filed his application on February 22, 2010.

E. Questions Presented
'Behrendt's application presents the following

questions:

l. whether the ICA gravely erred in affirming
Behrendt's convictions for Sexual Assault in the Third
Degree and Unlawful Imprisonment[15] because:

“ The ICA also concluded that the circuit court had a rational basis
to instruct the jury on the lesser included offense of sexual assault in the
third degree, and that there was substantial evidence to support Behrendt's
convictions for Counts 1 and 2. '

5 Although Behrendt provides extensive argument as to why his
convictions for Counts l, 2 and 3 cannot stand, he provides no further
argument with respect to his conviction for Count 4. Therefore, Count 4 will
not be further discussed. §ee HawaFi Rules of Appellate Procedure Rule
40.l(d)(1).

24

An.\

(2008)

B.

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a. At trial, the court erroneously admitted
character evidence in violation of Hawaii Rule of
Evidence (HRE), rules 404(b) and 403;

y b. The circuit court erroneously instructed the
jury on the included offense of Sexual Assault in the
Third Degree in Counts 1-3, where there was not '
reasonable basis in the evidence for these count
[sich

c. There was insufficient evidence to sustain
Behrendt's conviction for three counts of Sexual
Assault in the Third Degree.

II. STANDARDS OF REVIEW

Admissibi1ity of Evidence under HRE Rules 401, 403 & 404(b)

“Prior bad act” evidence under [HRE] Rule 404(b)
. is admissible when it is 1) relevant and 2) more
probative than prejudicial. A trial court's
determination that evidence is “relevant” within the
meaning of HRE Rule 401 is reviewed under the
right/wrong standard of review. However, a trial
court's balancing of the¢probative value of prior bad
act evidence against the prejudicial effect of such
evidence under HRE Rule 403 . . . is reviewed for
abuse of discretion. An abuse of discretion occurs
when the court clearly exceeds the bounds of reason or
disregards rules or principles of law to the
substantial detriment of a party litigant.

State v. Fetelee, 117 HawaiH.53, 62-63, 175 P.3d 709, 718-19
(citation omitted).

Jury Instructions

The standard of review for a trial court's issuance or
refusal of'a jury instruction is whether, when read
and considered as a whole, the instructions given are
prejudicially insufficient, erroneous, inconsistent,
or misleading. Erroneous instructions are
presumptively harmful and are a ground for reversal
unless it affirmatively appears from the record as a
whole that the error was not prejudicial. In other
words, error is not to be viewed in isolation and
considered purely in the abstract.

State v. Kassebeer, 118 Hawaii 493, 504, 193 P.3d 409, 420

(2008)

(quotation marks, citations, and brackets omitted).

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C. sufficiency of the Evidence

[E]vidence 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.

State v. Richie, 88 HawaFi l9, 33, 960 P.2d l227, 1241 (1998)
(citation omitted). “‘Substantial evidence' as to every material
element of the offense charged is credible evidence which is of
sufficient quality and probative value to enable a person of
reasonable caution to support a conclusion.” ;dg (internal

quotation marks and citation omitted).

III. DISCUSSION

A. Genera1 Principles App1icable to Admission of Evidence Under
HRE Rule 404(b) and 403

HRE Rule 404(b) (Supp. 2007) provides:

(b) 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. lt
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. In criminal cases, the
proponent of evidence to be offered under this subsection
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,

The rule prohibits the admission of evidence introduced
for the sole purpose of establishing that a defendant possesses a
criminal character and acted in conformity with that character.
Although such evidence may not be used solely for the purpose of

establishing criminal propensity, under certain circumstances it

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may be offered to prove other facts of consequence. ee State v.p

Kassebeer, 118 HawaiH.493, 506, 193 P.3d 409, 422 (2008). Such
facts include, but are not limited to, “motive, opportunity,
intent, preparation, plan, knowledge, identity, modus operandi,
or absence of mistake or accident.” HRE Rule 404(b). “The list
of permissible purposes in Rule 404(b) is not intended to be
exhaustive ‘for the range of relevancy outside the ban is almost
indefinite.'” State v. Clark, 83 HawaFi 289, 300-01, 926 P.2d
l94, 205-06 (1996) (citation omitted); State v. Cordeiro, 99
HawaiH.390, 414, 56 P.3d 692, 716 (2002). “Rule 404(b) was
intended not to define the set of permissible purposes for which
bad-acts evidence may be admitted but rather to_define the gne
impermissible purpose for such evidence. . . . : a person who
commits a crime probably has a defect of character; a person with
a defect of character is more likely than people generally to
have committed the act in question.” Qlark, 83 HawaFi at 301,
926 P.2d at 206 (citation and brackets omitted; emphasis in
original).
when evidence is offered for substantive reasons rather

than propensity, a trial court must additionally weigh the
potential prejudicial effects of the evidence against its

probative value under HRE Rule 403.” See Kassebeer, 118 HawaFi

15 HRE Rule 403 states: "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. "

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at 507, 193 P.3d at 423; Commentary to HRE Rule 404 (stating that
if offered for “specified purposes other than mere character and
propensity . . . ‘other crimes, wrongs, or acts' evidence may be
admissible provided the Rule 403 test is met”).
In State v. Castro, 69 Haw. 633, 756 P.2d 1033 (1988),

this court discussed the dangers of admitting propensity
evidence, and stressed the need for courts to apply this

balancing test even when evidence is substantively relevant:

The framers of the rule recognized that “[c]haracter
evidence is of slight probative value and may be very
prejudicial.” For “[i]t tends to distract the trier of fact
from the main question of what actually happened on the
particular occasion.” And “[i]t . . . permits the trier
. ` to reward the good man and to punish the bad man
because of their respective characters despite what the
evidence in the case shows actually happened.”

Yet even when the evidence of other crimes, wrongs or
acts tends to establish a fact of consequence to the
determination of the case, the trial court is still obliged
to exclude the evidence “if its probative value is
substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the jury, or by
considerations of undue delay, waste of time, or needless
presentation of cumulative evidence.” [HRE Rule] 403. For
the use of the word ‘may' in [HRE Rule] 404(b) was not
intended to confer any arbitrary discretion on the trial
judge but was rather designed to trigger the Rule 403
balance.

ldy at 643, 756 P.2d at 1041 (some brackets in the original; some
internal quotation marks and citations omitted).

Therefore, we must determine (1) if the South Dakota
evidence was probative of any fact of consequence other than
character and propensity; and, if so, (2) whether the circuit
court abused its discretion in determining that the probative

value of the evidence substantially outweighed the danger of

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unfair prejudice to Behrendt.” §ee Addison M. Bowman, Hawaii
Rules of Evidence Manual § 404-3[1] (2008-2009 ed.) [hereinafter
Bowman]; State v. Fetelee, 117 Hawaii 53, 62-63, 175 P.3d 709,
718-19 (2008) (“‘Prior bad act’ evidence under HRE Rule 404(b) is
admissible when it is 1) relevant and 2) more probative than
prejudicial.”) (citation, brackets and ellipses omitted); §ta;e

v. Renon, 73 Haw. 23, 32, 828 P.2d 1266, 1270 (1992).

B. Evidence of Sexual Contacts in South Dakota was Probative of
Opportunity

The State's evidence” established that the first
charged incidents of sexual assault in Hawaii occurred while SI,
LI and Behrendt were living at the Kamani Trees house with SI's
family. By that time, Behrendt and SI had been engaging in
sexual intercourse for at least two years. The first sexual
contact in Hawaii occurred one night while SI was sleeping in
the same bed with LI and Behrendt, and Behrendt turned SI on her
side and had vaginal intercourse with her from behind. They

continued to have sexual intercourse about three to five times a

" In conducting this analysis, we note that there is some variation
between the purposes identified by the circuit court in its written order
(motive, opportunity and plan) and in its instructions to the jury (motive,
opportunity and intent). However, since we conclude that the evidence was
probative of opportunity, which was identified by the circuit court both in
its order and its instruction, that variation is not material in the
circumstances of this case.

w This court may use evidence adduced at trial in order to determine
whether the circuit court abused its discretion in granting, in part, the
State's motion to reconsider the circuit court's grant of Behrendt's earlier
motion in limine, See, e.qy, MiVamoto v. Lum, 104 Hawafi 1, 7, 84 P.3d 509,
515 (2004) (“The denial of a motion in limine, in itself, is not reversible

error. ._. . the real test is not in the disposition of the motion but in the
admission of evidence at trial.”) (internal quotation marks and citation
omitted).

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month while living at that house.

The prior sexual contacts between SI and Behrendt in
South Dakota were relevant to establish Behrendt's opportunity to
engage in the sexual contacts in Hawaii without being detected.
The evidence established how the relationship between Behrendt
and SI had developed so that the sexual contacts in Kona could
take place without SI reporting them. Absent that evidence, it
would be implausible that Behrendt could suddenly engage in

sexual intercourse with SI in a house they shared with her family

while SI's sister slept in the same bed, without SI reporting it.

Specifically, the evidence from South Dakota
established that Behrendt had initially explored SI's willingness
to engage in sexual conduct by first suggesting that they take
showers together, then having her touch his penis in the shower,
followed by him touching her genitalia, and then progressing to
sexual intercourse.

The State's expert witness on child sexual abuse, Dr.
Bivens, testified about a study involving interviews of
approximately thirty child sexual offenders, who identified
“seduction and testing” as a method they used to accomplish the

abuse:

Seduction and testing involves taking
normal adult-child touch, which would be a hug, a
kiss, that sort of affectionate touching, which I hope
is happening between adults and children, and slowly
incorporating sexual touch into.

The classic example that’s in the book is
watching television, snuggling on the couch. And what
the abuser will do is touch more frequently in more
sexual ways. Now that’s the seduction part, The

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~testing part is that all the molesters reported that
they were waiting and monitoring the reaction of the
child. And what they reported was that they said that
if the child was going to startle or somehow react in
a way that let them know that they were going to get
into trouble for it that they would have backed off
completely.

The evidence also established that Behrendt developed a
relationship of trust and control with Sl in South Dakota.
Behrendt was Sl's primary caretaker when SI's sister was working,
bought her things, and took her side when she had disagreements
with her sister.” He assured her that their sexual touching was
“okay” and that her sister said it was “okay” for them to shower
together, Also, he showed her a pornographic videotape when they
were alone together.”

After their relationship became sexua1, Sl testified
that at first she was “confused” and occasionally acted rude to
Behrendt to “push[] him off.” On those occasions, he would

discipline her by putting her nose on the wall for a few minutes,

¢

w Dr. Bivens testified that abusers typically use various strategies
to gain the trust of the child, such as spending a lot of time with the child,
giving them attention, touching them non-sexually, telling them they are
special, treating them like an adult, or tricking them into feeling safe with
the abuser.

” Dr. Bivens also testified about the significance of the display of
pornography to a child:

Introduction to pornography usually is put under the
category of emotional and verbal coercion. lt is
usually regarded as a form of sexual abuse in and of
itself. lt clearly raises the topic of sexuality with
the child. lt will very likely lead to more
sexualized behavior by the child, perhaps get the
child to become interested in sexuality and things
like that. lt would certainly be lots of negative
effects.

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or he and LI would threaten to send her back to HawaiHM21
Behrendt also repeatedly told Sl that she could not tell about
what was happening or he would be separated from her and would go
to jail.

Sl testified that by the time that SI, her sister and
Behrendt returned to Kona, she had grown close to Behrendt and

“started liking him” because he was there for her as a friend:

l told him everything. [He] [b]ought me stuff.
lf anytime there was an argument, like an argument
between me and my sister or something, it seems like
he stuck up for me. Or even when we got back to my
parents, my parents -- all of us, we would argue about
something or just have a disagreement, and he was
always sticking up for me, like he was there for me.

ln sum, by the time that SI returned to HawaFi, Sl had
become acclimated to the sexual contact.. Her relationship with
Behrendt had developed from the early stages when she would
occasionally act rudely and “push him off,” to the point where
she had grown close to him and “started liking him, because he
was there for me.” °Thus, when Behrendt had sex with Sl at Kamani
Trees while her sister slept in the same bed, it was another
contact in an established sexual relationship. SI's failure to
cry out or tell anyone what had occurred that night and on the
subsequent occasions of sexual contact in HawaFi was consistent

with the relationship that had been established in South Dakota.

Thus, the evidence of the sexual contacts in South Dakota was

n Dr. Bivens testified that “emotional and verbal coercion” is
another common strategy used by child sexual abusers, in which the abuser will
“talk about rewards for having sex or withdrawal with punishment. l won't
punish you for being late if you give me some sex, that type of thing.”

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relevant to show Behrendt's opportunity to commit the charged
sexual assaults in Hawafi without being detected.

There are no HawaFi cases involving child sexual abuse
that address the admissibility of the defendant's prior sexual
interaction with the complaining witness. However, cases from
other jurisdictions have held that such evidence is admissible
under rules comparable to HRE Rule 404(b). See, e.g., State v.
ggx, 169 P.3d 806, 813-14 (Utah Ct. App. 2007) (holding that
evidence of an uncharged incident of sexual conduct was
admissible to demonstrate an ongoing pattern of behavior by the

defendant toward one particular victim) (citing State v. Reed, 8

P.3d 1025, 1030-32 (Utah 2000) (concluding that evidence of

specific uncharged instances of the defendant's treatment of the

child “demonstrated the manner in which [the defendant] intensely
pursued the victim over a three-and-a-half year period in order

to gain opportunity to commit the unlawful sexual acts”)); State

v. Baptista, 894 A.2d 911, 915-16 (R.l. 2006) (holding that
evidence of uncharged sexual assaults against defendant's step-
daughter over a period of two and a half years was admissible to
show the defendant's intent and lewd disposition toward the
particular child victim); State v. Paul, 769 N.w.2d 416, 425-26
(N.D. 2009) (approving trial court's admission of evidence that
defendant made complaining witness watch “nasty movies” and

engaged in sexual conduct with her in another state prior to the

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charged conduct as probative of plan and preparation).”
In sum, the State clearly articulated a legitimate

purpose for the evidence, i.e., establishing Behrendt's

opportunity to commit the offenses in Hawaii without being

detected. Both the testimony of Sl and the testimony of Dr.

Bivens provided the evidentiary foundation for that non-character»

use of the evidence. Thus, this is not a situation where the
state offered a pretextual reason for the admission of the
evidence, but in fact appeared to be using it to establish the
bad character of the defendant. _fy Fetelee, 117 Hawaii at 82-
85, 175 P.3d at 738-741 (in case of attempted murder, attempted
assault and theft, concluding that evidence of an unrelated prior
incident where the defendant entered his neighbor's apartment and
punched a visitor would likely cause the jury to “infer[] that
[the defendant] was a violent person of bad character” and was
therefore not admissible under HRE 404(b)).

Accordingly, we conclude that the evidence of sexual

contacts in South Dakota was relevant to establish opportunity.”

” we note that some of the purposes identified by these courts are
overlapping. Thus, when a defendant engages in behavior that culminates in a
sexual relationship with a child, the evidence of that behavior could be
admissible to show that defendant had a plan (to gain the child's trust and
acquiescence), engaged in preparation (by seducing and testing the child) and
did so in order to have the opportunity to engage in sexual conduct with the
child without being detected.

” Since we conclude that the evidence was relevant to establish
opportunity, we need not determine whether the other purposes identified by
the circuit court were relevant in these circumstances. Q§y State v. Austin,
70 Haw. 300, 305-08, 769 P.2d 1098, 1101-02 (1989) (trial court instructed the
jury that it could consider evidence of the defendant's prior uncharged acts
for seven purposes delineated in HRE 404(b); this court concluded that the

(continued...)

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C. The Probative value of the Evidence of Sexual Contacts in
South Dakota was Not Outweighed by Any Prejudicia1 Effect

we next consider whether the probative value of the
evidence was “substantially outweighed” by the danger of unfair
prejudice to Behrendt. HRE Rule 403. when weighing probative
value versus prejudicial effect in this context, 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)
(citation omitted).

In the instant case, these factors weigh in favor of
admission of the evidence. The strength of the evidence of the
uncharged conduct is essentially the same as for the charged

offenses, since the State relied primarily on the testimony of

SI, together with the testimony of her sister and the

observations of some other witnesses, to establish both the

conduct in South Dakota and the conduct in HawaFi. Qjg Reed, 8
P.3d at 1030-32 (concluding that evidence of both charged and
uncharged instances of the defendant's sexual contact with the
child victim “were essentially interchangeable, were of the same

nature and character as the primary offense, and were carried out

(...continued)
trial court properly admitted the evidence of prior uncharged offenses under
HRE 404(b), analyzing two of the seven purposes).

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on the same victim during the same uninterrupted course of
conduct[,]” and therefore the probative value of the evidence of
the uncharged instances outweighed the prejudicial effect).

The similarities between the crimes were strong, since
the conduct in South Dakota was in substance the same as that in
HawaFi, i.e., alleged sexual contact between Sl and Behrendt.
And although the South Dakota conduct took place over a several-
year period, it immediately preceded the conduct in HawaiH.and.
thus was not remote in time. _fy State v. Maelega, 80 Hawaii
172, 183, 907 P.2d 758, 769 (1995) (holding that the trial court
did not abuse its discretion in concluding that prior bad act
evidence was more probative than prejudicial; the trial court
noted, inter alia, that “verv little time fl elapsed between the
prior act evidence and the instant offense charged”) (emphasis
adaed) . `

There was also a substantial need for the evidence. we
have previously emphasized “the importance of the need factor,”

Clark, 83 Hawafi at 303, 926 P.2d at 208 (citations omitted),

and one commentator has observed that in a case involving “high
relevance and strong need, the rule 403 balance will always favor
admissibility.” Bowman § 404-3[2][B]. Absent the evidence of
sexual contacts between Sl and Behrendt in South Dakota, the jury
would have been left with the false impression that the sexual
contact started at Kamani Trees. Sl's failure to cry out when

Behrendt had sexual intercourse with her the first time at Kamani

/

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Trees, as her sister slept nearby, and her failure to report that
incident as well as the subsequent incidents, would have been
inexplicable, as would the fact that Behrendt would suddenly
engage in such conduct after having lived in close proximity to
SI for three years.

This court has previously recognized that testimony
regarding a defendant's prior bad acts can be highly probative in
understanding the conduct of a complaining witness in a sexual
assault case. ln State v. laukea, 56 Haw. 343, 537 P.2d 724
(1975), the complaining witness was a psychiatric social worker
who was abducted and raped by the defendant. The complaining
witness knew of the defendant's prior acts of violence and rape
while treating him as part of her duties. ;dp at 352, 537 P.2d
at 731. She testified that she remained calm during the assault,
both because of her training in how to deal with crisis
situations, and because she was afraid of provoking the defendant
to violence given what she knew about his past. ;dp at 347, 537
P.2d at 728. This court held that her testimony about her
knowledge of defendant's prior bad acts was relevant to show lack

of consent, and noted that:

The testimony of the complaining witness
concerning the prior crimes which, to her knowledge,
appellant had committed, credibly explained and placed
in context many of her statements to and actions
toward him. Her fear of the appellant was in part due
to his past history of attacks on women. The
complaining witness made every effort to remain calm_
and to refrain from screaming because of her training
as a psychiatric social worker. ln her judgment she
had a better chance of avoiding serious bodily injury
if she remained calm. She feared that he would ‘cut
her up’ if she ‘tried to fight him.'

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lt was important that the jury know all of the
facts involved so that they would not mistakenly
construe the complaining witness's calm manner and
lack of screaming as indicative of consent or lack of
forcible compulsion.

;dp at 352, 537 P.2d at 731.

while the issue in laukea was lack of consent, and the
issue here concerns SI's failure to promptly report the sexual
contacts in HawaiH, nevertheless the underlying principle is the
same: there is a substantial need for prior bad acts evidence
when the exclusion of that evidence will create a false
impression by the jury regarding the actions of the complaining
witness.

The next Rule 403 factor, the efficacy of alternative
proof, also weighs in favor of admitting the South Dakota
evidence. lhere was no alternative way to establish the
progression of Behrendt's behaviors, including his seduction and
testing of Sl and his development of a relationship of trust and
control over her as their sexual relationship evolved. Although
there was evidence that showed Behrendt's continued, and indeed,
intensified efforts to maintain his relationship of trust and
control with Sl after they returned to HawaFi, that evidence
would be likely to confuse rather than enlighten the jury absent
the context provided by the prior conduct in South Dakota.

Finally, the evidence of the conduct in South Dakota
was not likely to rouse the jury to an overmastering sense of
hostility against Behrendt. The conduct in South Dakota was of
the same general type and involved the same complaining witness

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as the conduct in HawaiHn The jury heard testimony from Sl
about numerous sexual encounters between Sl and Behrendt in
HawaFi, including acts of sexual intercourse preceded on most
occasions by Sl licking Behrendt's penis “to get it wet,” and an
occasion when Behrendt attempted to or did insert his penis in

her anus. As the Court of Appeals of Utah noted:

[T]he evidence was not unfairly prejudicial because
[the complaining witness's] testimony regarding the
[uncharged] sexual abuse that occurred in wasatch
County was essentially interchangeable with and of the
same nature and character as her testimony regarding
Defendant’s [charged] conduct in Salt Lake County.
Such evidence of multiple acts of similar or identical
abuse is unlikely to prejudice a jury; jurors will
either believe or disbelieve the testimony based on
the witness's credibility, not whether the witness
asserts an act occurred [an additional time].

gpx, 169 P.3d at 814 (quotations and citations omitted, some,
brackets in original and some added).
The primary difference between the sexual conduct in

Hawaii and that in South Dakota was that the South Dakota
conduct occurred while Sl was several years younger, and,
according to SI, occurred more frequently than in HawaFi. Those
are relevant considerations which could, depending on the
circumstances, provide a basis for limiting such evidence or
excluding it altogether. However, we do not believe that they
caused “overmastering hostility” in the circumstances of this
case, particularly since the State did not argue in closing that
SI's age at the time of the South Dakota contacts made Behrendt's
conduct more culpable or reprehensible, and since there was

evidence of a substantial number of contacts in Hawafi over a

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period of about two years.
we further note that the potential for juror confusion
here did not tip the balance against admission of the evidence.
_ee HRE Rule 403. As noted above, the jury did send a question
to the court regarding how to use the testimony and evidence from
South Dakota. `However, the court responded appropriately by
referring the jury back to the court's limiting instruction

regarding the permissible purposes for that evidence, and there

were no further questions from the jury on that subject. The

fact that the jury had a question, without more, does not
establish that the jury was confused. To the contrary, it is not
surprising that the jury asked for clarification, since the
court's instruction did not specifically state that it was
referring to the evidence from South Dakota. By`referring the
jury back to that instruction in response to its question, the
court clarified that the instruction covered the South Dakota
evidence, and there is no basis for concluding that the admission

of the South Dakota evidence resulted in any prejudicial jury

5 confusion.

ln sum, this court has stated that “the determination

lof the admissibility of relevant evidence under HRE 403 is

eminently suited to the trial court's exercise of its discretion
because it requires a cost-benefit calculus and a delicate
balance between probative value and prejudicial effect.” Clark,

83 HawaFi at 302, 926 P.2d at 207 (citations omitted). The

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circuit court here carefully considered that balance. lt required
the State to give a detailed description of the evidence prior to
trial, and refused to admit some of the proposed testimony.“ we
cannot say that the circuit court abused its discretion in
concluding that the probative value of the evidence it admitted
was not outweighed by its prejudicial effect. 0

D. There was Sufficient Evidence to Instruct the Jury on the
Lesser Inc1uded Offense of Sexual Assault in the Third
Degree for Counts 1-3, and to sustain Behrendt's Convictions

Behrendt argues that the circuit court erred in
instructing the jury on the offense of sexual assault in the
third degree because “[t]he only evidence that was presented by
the State in regard to sexual assault was evidence of repeated
sexual penetrations,” which would constitute first degree sexual
assault, Behrendt similarly argues that there was insufficient
evidence to support his convictions for Counts 1-3 and therefore
the circuit court erred in denying his motion for judgment of
acquittal.

HRS § 707-730(1)(c) provides that a person commits the
offense of first degree sexual assault when “[t]he person
knowingly engages in sexual penetration with a person who is at
least fourteen years old but less than sixteen years old;

provided that: (i) The person is not less than five years older

24 As noted above, the circuit court concluded that the testimony of
two of the State's proposed witnesses was inadmissible because it would be
cumulative and the prejudicial value would outweigh the probative value. S_e_e_
supra, part l.A. & note 7.

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than the minor; and (ii) The person is not legally married to the
minor; . . . .” -HRS § 707-732(1)(c) defines the offense of third
degree sexual assault the same way as HRS § 707-730(l), except
that a person commits the offense of third degree sexual assault
by engaging in “sexual contact” rather than “sexual penetration.”

As noted above, part l.D, the lCA concluded that there
was sufficient evidence to support Behrendt's convictions on all
counts, but remanded for a new trial on Count 3 because of the
circuit court's failure to properly instruct the jury on the

amended definition of “sexual contact.”” The State

5 As explained by the lCA, the definitions of both “sexual contact”
and “sexual penetration” were amended in 2004, in response to this court's
holding in State v. Mueller, 102 HawaFi 391, 76 P.3d 943 (2003), which
overruled this court's previous holding in State v. Rulona, 71 Haw. 127, 785

P.2d 615 (l990).

Prior to 2004, “sexual penetration” was defined as:

vaginal intercourse, anal intercourse, fellatio,
cunnilingus, anilingus, deviate sexual intercourse, or
any intrusion of any part of a person's body or of any
object into the genital or anal opening of another
person's body; it occurs upon any penetration, however
slight, but emission is not required.

HRS § 707-700 (Supp. 1986 & 1993).
“Sexual contact” was defined as:

any touching of the sexual or other intimate parts of
a person not married to the actor, or of the sexual or
other intimate parts of the actor by the person,
whether directly or through the clothing or other
material intended to cover the sexual or other
intimate parts.

HRS § 707-700 (Supp. 1937 t 1993“).

ln Mueller, involving alleged acts of cunnilingus, this court held
that the plain language of HRS § 707-700, specifically the phrase “it occurs
upon any penetration, however slight,” “mandates proof of ‘penetration[,]'” in
order to convict for sexual assault in the first degree for acts of
cunnilingus. 102 Hawafi at 393, 76 P.3d at 945. Thereafter the legislature
amended the definitions of “sexual penetration” and “sexual contact” in HRS §
(continued...)

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did not appeal the lCA's conclusion with respect to Count 3, nor
does Behrendt address it in his application. Therefore, we must
determine whether there was a rational basis for the circuit
court to instruct the jury on sexual assault in the third degree
for Counts 1 and 2, see State v. Kinnane, 79 Hawaii 46, 49, 987
P.2d 973, 976 (l995) (“in the absence of [] a rational basis in
the evidence, the trial court should not instruct the jury as to
included offenses”) (emphasis omitted), and whether there was
sufficient evidence to support Behrendt's convictions on all
three counts.j we conclude that there was, and therefore affirm-
the lCA.

The definition of “sexual contact” in HRS § 707-700

(...continued)
707-700, effective May 10, 2004, for the purpose of clarifying that the
definition of “sexual penetration” would include cunnilingus and anilingus
whether or not actual penetration occurred. 2004 Haw. Sess. Laws Act 61, § 2
at 302-03.

The definition of “sexual penetration” was therefore amended to
read as follows:

(l) Vaginal intercourse, anal intercourse, fellatio,
deviate sexual intercourse, or any intrusion of any
'part of a person's body or of any object into the
genital or anal opening of another person's body; it
occurs upon any penetration, however slight, but
emission is not required; pp

(2) Cunnilingus or anilingus, whether or not actual

penetration has occurred.

HRS § 707-700 (Supp. 2004) (emphasis added).

The definition of “sexual contact” was amended to read as follows:

any touching, other than acts of “sexual penetration”,

of the sexual or other intimate parts of a person not
married to the actor, or of the sexual or other
intimate parts of the actor by the person, whether
directly or through the clothing or other material
intended to cover the sexual or other intimate parts.

HRS § 707-700 (Supp. 2004) (emphasis added).

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(both the current definition, effective during the time period
covering Count 3, and the definition prior to the 2004
amendments, effective during the time period covering Counts 1

and 2), states that “sexual contact” includes “any touching” “of

the sexual or other intimate parts of a person not married to the
actor, or of the sexual or other intimate parts of the actor by

the person, whether directly or through the clothing or other
material intended to cover the sexual or other intimate parts.”
HRS § 707-700 (1993 & Supp. 2004) (emphasis added). \
Sl testified that she and Behrendt repeatedly engaged
in sexual intercourse over the time periods covered by Counts 1-
3._ Sl also recounted some of the specific instances in which
they had intercourse. For example, at a time when living at the
Kamani Trees house (Count 1), Sl testified that she was sleeping

\

one night and Behrendt “turned me around and he had sexual

‘intercourse with me in the back.” when living at the Aloha Kona

house (Count 2), Sl recounted a time when Behrendt asked her if
she “wanna do it” and “[Behrendt] just did sexual intercourse
from behind” where Sl “was over the bed, standing up, leaning
over.” Also while living at the Aloha Kona house, Sl testified
that Behrendt would take her to a construction site nearby and
they would have sexual intercourse in the car, where “he would
have me sit on top of him, where he’s behind me, or he would have
me straddle him.” Sl also recounted a time when Behrendt took

her to a nearby construction and “had me in the car, in the back

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seat, and l just . . . was . . . like bent over the back seat,
and he was behind me[,]” and then Behrendt inserted his penis
into Sl's vagina. Sl also testified that Behrendt also took her
in a rental car to a different construction site in Kaloko where
they had sexual intercourse, and then Behrendt asked Sl if she
wanted to “do anal” and told her that it wouldn’t hurt and other
girls do it. The DPA asked Sl if Behrendt “attempt[ed] it” and
Sl replied “[y]es” and that “he put his penis in my anal, my
butt.”

Although this testimony indicates that there were

incidents of sexual penetration between Sl and Behrendt, which

§ would support a conviction for sexual assault in the first

degree, a rational juror could have inferred that there was
“sexual contact” prior to the penetration, i.e., that there was
“touching” of “the sexual or other intimate parts” of SI, such as
Sl's genitalia, buttocks, or other intimate parts, either
directly or through clothing, or that Sl touched Behrendt's
“sexual or other intimate parts.” HRS § 707-700. This testimony,
therefore, provided a rational basis to instruct the jury on
sexual assault in the third degree, Kinnane, 79 Hawafi at 49,
987 P.2d at 976, and, when considered in the strongest light for
the prosecution, was also sufficient to sustain Behrendt's

convictions 'Riohio, 33 Hawai‘i at 33, 960 P.2d at 1241.

rv. concLUsron
The circuit court properly admitted the South Dakota

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evidence because the evidence was probative of Behrendt's
opportunity to commit the offenses in Hawaii without being
detected, and its probative value outweighed any prejudicial
effect.

we further hold that the circuit court did not err by
instructing the jury on the lesser included offense of sexual
assault in the third degree, and that there was sufficient
evidence to support the convictions on Counts 1-3,

Accordingly, we affirm the lCA’s November 24, 2009

judgment. §

Ronette M. Kawakami, ~{-&L,¢_,,,,LL»,_@,'“?\@¢¢