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NO. 30079
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAfI
50 =8 %W OEY~EHI"G¥UZ
HERMAN-LEE KAOPUA, SR., Petitioner-Appellant,
VS. `
STATE oF HAWAI‘I, Respondent-Appellee
APPEAL FROM THE CIRCUIT COURT OF THE FIFTH CIRCUIT
(S.P.P. NO. 09-1-OOO7)
SUMMARY DISPOSITION ORDER
(By: Nakamura, Chief Judge, Leonard, and Reifurth, JJ.)
Petitioner-Appellant Herman-Lee Kaopua Sr. (Kaopua)
appeals from the "Findings of Fact; Conclusions of Law; Order
Denying Petitioner Herman Kaopua, Sr.'s Petition for Post-
Conviction Relief" (Order Denying Second Petition), which was
filed on August 28, 2009, in the Circuit Court of the Fifth
Circuit (circuit court).W We affirm.
I.
In Kaopua's underlying criminal case, Respondent~
Appellee State of Hawafi (State) charged Kaopua by indictment
with six counts of sexual assault. The same person (Minor) was
named as the alleged victim in each count.
alleged that Minor was less than fourteen years old at the time
Counts 1 through 5 charged Kaopua with
The indictment
of the charged offenses.
first degree sexual assault of Min0r, in violation of Hawaii
y The Honorable Randal G.B. Valenciano presided over the proceedings
relevant to this appeal.
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Revised Statutes (HRS) § 707-730(1)(b) (1993).W Count 6 charged
Kaopua with continuous sexual assault against a minor under the
age of fourteen years, in violation of 707~733.5 (Supp. 1999).Y
Count 6 encompassed the same time frame (November 6, 1995 to
January 26, 2001) as the acts alleged in Counts 1 through 5.
After a jury-waived bench trial, the Family Court of
the Fifth Circuit (family court)9 found that Kaopua had
committed four discrete acts of first degree sexual assault, as
charged in Counts 1 through 4, but found that there was
F During the times relevant to this case, HRS § 707-730(1)(b) provided:
(1) A person commits the offense of sexual assault in the
first degree if:
(b) The person knowingly subjects to sexual penetration
another person who is less than fourteen years old;
provided this paragraph shall not be construed to
prohibit practitioners licensed under chapter 453,
455, or 460, from performing any act within their
respective practices.
W During the time relevant to this case, HRS § 707-733.5 provided in
relevant part:
(l) Any person who:
(a) Either resides in the same home with a minor under the
age of fourteen years or has recurring access to the
minor; and
(b) Engages in three or more acts of sexual penetration or
sexual contact with the minor over a period of time,
but while the minor is under the age of fourteen
years,
is guilty of the offense of continuous sexual assault of a minor
under the age of fourteen years.
(3) No other felony sex offense involving the same victim
may be charged in the same proceeding with a charge under this
section, unless the other charged offense occurred outside the
time frame of the offense charged under this section or the other
offense is charged in the alternative. A defendant may be charged
with only one count under this section unless more than one victim
is involved, in which case a separate count may be charged for
each victim.
5 The Honorable Clifford L. Nakea presided over Kaopua's underlying
criminal case.
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insufficient evidence to support Count 5. Based on its findings
that Kaopua had engaged in three or more acts of sexual
penetration as charged in Counts 1 through 4, the family court
found Kaopua guilty of Count 6. The family court, however,
dismissed Counts 1 through 4 on the ground that convictions on
those counts were precluded by the conviction on Count 6 for
violating HRS § 707-733.5. Under HRS § 707-733.5(3),W "[n]o
other felony sex offense involving the same victim may be charged
in the same proceeding with a charge under this section [(for
continuous sexual assault of a minor under the age of fourteen
years)], unless the other charged offense occurred outside the
time frame of the offense charged under this section or the other
offense is charged in the alternative." Neither exception set
forth in HRS § 707-733.5(3) applied to Counts 1 through 4.
Despite finding that Kaopua had committed acts of sexual
penetration as charged in Counts 1 thorough 4 and only dismissing
those counts because of HRS § 707-733.5(3), the family court on
April 9, 2002, entered a Judgment of Acquittal as to Counts 1
through 4 as well as on Count 5.
Kaopua appealed his conviction on Count 6, and the
State cross-appealed. On cross~appeal, the State argued that the
family court's oral decision to dismiss Counts 1 through 4 as a
matter of law under HRS § 707-733.5(3) was inconsistent with its
subsequent entry of a Judgment of Acquittal on those counts. The
Hawafi Supreme Court remanded the case for clarification as to
the family court's disposition of Counts 1 through 5. On remand,
the family court clarified that Counts 1 through 5 were dismissed
as~a matter of law pursuant to HRS § 707-733.5(3) because they
involved the same victim and time frame as Count 6 and were not
charged in the alternative to Count 6. The family court
therefore entered an order that dismissed`Counts 1 through 5,
vacated the Judgment of Acquittal entered as to Counts 1 through
5, and superceded the vacated Judgment of Acquittal with its
§/ See footnote 3, supra.
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order of dismissal. After the circuit court entered this order,
the parties stipulated to the dismissal of the State‘s cross-
appeal.
In the direct appeal of his judgment, Kaopua challenged
his conviction on Count 6, claiming that his jury-trial waiver
was invalid. On February 12, 2004, the HawaiH.Supreme Court
issued a summary disposition order affirming Kaopua's judgment of
conviction in Appeal No. 25009.
On January 20, 2006, Kaopua filed a Petition for Post-
conviction Relief pursuant to Rule 40 of the Hawaii Rule of Penal
,Procedure (HRPP) (First Petition) in SPP No. 06-1-OOO1 and an
amended First Petition on February 27, 2006. The circuit court9
denied the claims raised in the First Petition and the amended
First Petition on November 24, 2006. On October 23, 2007, Kaopua
filed a "Default Rule 55 (a)(e) HFCR and Rule 40(d) HRPP"
(Default Rule Motion) which the circuit courtW denied on
November 14, 2007. Kaopua appealed the denial of his Default
Rule Motion in Appeal No. 28907. This court dismissed Kaopua's
appeal in Appeal No. 28907 on January 26, 2009, for lack of
appellate jurisdiction because there was no final appealable
order,
II.
On June 25, 2009, Kaopua filed a "Post-Conviction
Proceeding Rule 40(a)(1)(i, iii, iv) HRPP" (Second Petition),
which forms the basis of this appeal. On August 28, 2009, the
circuit court denied the Second Petition without a hearing and
issued its Order Denying Second Petition.
Kaopua argues on appeal, as he did in the Second
Petition, that he was improperly convicted of Count 6 because the
trial court concluded that he did not commit the separate acts of
sexual assault charged in Counts 1 through 5, and therefore, the
9 The Honorable George M. Masuoka presided.
1/ The Honorable Kathleen N.A. Watanabe presided.
4
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trial court should not have convicted him of the offense of
continuous sexual assault against a minor under the age of
fourteen years charged in Count 6. He also claims that there was
insufficient evidence to convict him of Count 6.
Upon careful review of the record and the briefs
submitted by the parties, we resolve Kapoua's claims as follows:
1. Kaopua did not prove the existence of
extraordinary circumstances to justify his failure to raise the
issues in the Second Petition in his direct appeal or in the
First Petition. Therefore, he waived the issues raised in the
second Petition. HRPP Rule 40(a) (3) (2006) .§/
2. Even if not waived, Kaopua's claims are without
merit. Kaopua claims that his conviction on Count 6 is improper
and violates double jeopardy because it is based on the acts
underlying Counts 1 through 4 for which he as "acquitted" by the
family court. This claim is based on the erroneous premise that
the family court acquitted Kaopua of Counts 1 through 4.
Although the family court initially entered a Judgment of
Acquittal as to those counts, on remand from the HawaFi Supreme
Court, the family court vacated its judgments of acquittal on
Counts 1 through 4 and instead dismissed those counts. Because
the family court did not acquit Kaopua of Counts 1 through 4, but
instead dismissed those counts pursuant to HRS § 707-733.5(3)
after finding that Kaopua had committed the acts of sexual
penetration charged therein, the family court properly based
Kaopua's conviction on Count 6 on Kaopua\s commission of the acts
alleged in Count 1 through 4. ’
3. We reject Kaopua's claims that there was
insufficient evidence to support his conviction and that his
conduct did not satisfy the requirements of the HRS § 707-733.5
offense of continuous sexual assault of a minor under the age of
§/ To_the extent that Kaopua contends that he did previously raise
claims contained in the Second Petition, those claims are barred as having
been previously ruled upon. HRPP Rule 40(a) (3) .
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fourteen years charged in Count 6. Kaopua's interpretation of
HRS § 707-733.5 as requiring proof that a person "plac[ed] the
penis into the vagina and then mov[ed] the penis back and forth
three or more times within the vagina" is wrong. Kaopua also
apparently contends that there was insufficient evidence of
sexual penetration because the State used "only testimony" and
the injuries observed during the vaginal examination of Minor
could have been a normal variant. This contention is without
merit as the prosecution can prove sexual penetration based on
testimony that does not include corroborating evidence from a
physical examination.
III.
The Order Denying Second Petition that was filed by the
circuit court on August 28, 2009, is affirmed.
DATED; Honolulu, Hawai‘i, June 30, 2010.
On the briefs:
Herman-Lee Kaopua, Sr. Chief Judge
Petitioner-Appellant Pro Se
Tracy Murakami j
Deputy Prosecuting Attorney
for Respondent-Appellee
ds
downum
Associate Judge