State v. Veikoso

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Electronically Filed
Supreme Court
SCWC-30138
12-SEP-2011
09:45 AM

IN THE SUPREME COURT OF THE STATE OF HAWAI#I

---o0o---

STATE OF HAWAI#I, Petitioner/Plaintiff-Appellee

vs.

JOHN C. VEIKOSO, Respondent/Defendant-Appellant

NO. SCWC-30138

CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CR. NO. 09-1-0194)

SEPTEMBER 12, 2011

RECKTENWALD, C.J., NAKAYAMA, ACOBA, DUFFY, AND MCKENNA, JJ.

OPINION OF THE COURT BY ACOBA, J.

We hold that, although the Intermediate Court of

Appeals (ICA) held that the circuit court of the first circuit

(the court)1 erred in admitting the testimony of Dr. Wayne Lee

(Dr. Lee), the physician who examined Complaining Witness (CW) #2

1
The Honorable Steven S. Alm presided.
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regarding alleged threats made by Respondent/Defendant-Appellant

John C. Veikoso (Respondent) against CW #2, the ICA committed

grave error in concluding that the error was not harmless. See

State v. Veikoso, No. 30138, 2010 WL 5037006, at *16-17 (App.

Dec. 9, 2010) (mem.). In our view, the error in admitting such

testimony was harmless beyond a reasonable doubt. Accordingly,

we reverse the February 1, 2011 judgment of the ICA, filed

pursuant to its December 9, 2010 Memorandum Opinion (memo op.),2

insofar as it vacated the court’s September 28, 2009 Judgment

convicting Respondent on Counts 4-8 (involving CW #2) and

remanded those counts for a new trial.3

I.

On February 11, 2009, Respondent was charged by

Petitioner/Plaintiff-Appellee State of Hawai#i (Petitioner) in an

eight-count indictment with: (1) Sexual Assault in the First

Degree, Hawai#i Revised Statutes (HRS) § 707-730(1)(a) (Supp.

2009) (Counts 1 and 2 involving Complaining Witness (CW) #1 and

Counts 4 (sexual penetration of penis into mouth) and 5 (sexual

penetration of penis into vagina) involving CW #2)4; (2) Sexual

2
The memo op. was filed by Presiding Judge Alexa D.J. Fujise and
Associate Judges Katherine G. Leonard and Lisa M. Ginoza.

3
Inasmuch as Respondent did not file an application for writ of
certiorari seeking review of the opinion of the ICA, the ICA’s judgment is
affirmed insofar as it affirmed the September 28, 2009 Judgment of the court
as to Respondent’s convictions on Counts 1-3.

4
HRS § 707-730(1) provides in relevant part:

§707-730 Sexual Assault in the first degree. (1) A
person commits the offense of sexual assault in the first
degree if:
(a) The person knowingly subjects another person to
(continued...)

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Assault in the Third Degree, HRS § 707-732(1)(f) (Supp. 2009)5

(Count 6 (mouth on breast) and 7 (hand on breast) involving CW

#2); and (3) Kidnapping, HRS § 707-720(1)(d) and/or (e) (Supp.

2009) (Count 3 involving CW #1 and Count 8 (with intent to

inflict bodily injury or to subject to sexual offense or to

terrorize) involving CW #2).6 Counts 1 through 3 arose from

events taking place on January 18, 2009, involving CW #1, and

Counts 4 through 8 from events taking place on February 7, 2009

involving CW #2. According to Petitioner, on separate occasions,

Respondent solicited CW #1 and CW #2 respectively, who were

working as prostitutes, from the same location, “drove both women

over the Pali Highway--while threatening, terrifying, and beating

them--to Maunawili Elementary School, where he sexually assaulted

them in a similar manner at the same bench, after which he

abruptly changed his demeanor to reflect a caring and [sic]

concern for his victims.”

4
(...continued)
an act of sexual penetration by strong
compulsion.

5
HRS § 707-732 provides in relevant part:

§707-732 Sexual Assault in the third degree. (1) A
person commits the offense of sexual assault in the third
degree if:
(f) The person knowingly, by strong compulsion, has
sexual contact with another person or causes
another to have sexual contact with the actor.

6
HRS § 707-720(1) provides in relevant part:

§707-720 Kidnapping. (1) 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[.]

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II.

The following essential matters, some verbatim, are

from the record, the ICA opinion, and the submissions of the

parties.

The charges in the case were joined pursuant to Hawai#i

Rules of Penal Procedure (HRPP) Rule 8 (2009), which permits the

joinder of two or more offenses, with each offense stated in a

separate count, when the offenses “(1) are of the same or similar

character, even if not part of a single scheme or plan; or

(2) are based on the same conduct or on a series of acts

connected together or constituting parts of a single scheme or

plan.” As discussed infra, Respondent filed a Motion for

Severance of the Charges (Motion for Severance) arguing that he

would be prejudiced by the joinder. Petitioner contended, inter

alia, that Respondent would not be prejudiced by the joinder

because the evidence supporting each offense would likely be

admissible against Respondent, even if tried separately, to show

intent, common scheme, plan, design or modus operandi.

Respondent’s motion was denied by the court and the separate

offenses involving CW #1 and CW #2 were joined in the same trial.

III.

A.

Opening Argument

At trial, defense counsel contended in his opening

argument that CW #2 consented to having sex with Respondent and

“voluntarily went in[to Respondent’s] car, with the purpose of

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making money.” He suggested that CW #2 had fabricated the

complaint against Respondent because “at some point . . . there

was a dispute about the money being paid or not paid”; “there was

an agreement for $120[,]” but the $120 “was found folded in

[Respondent’s] pocket.”

B.

CW #1’s Testimony

The incident pertaining to CW #1 is not at issue on

certiorari. See supra note 7. Petitioner contends that the

testimony of both complaining witnesses may be considered as part

of the evidence to be weighed in CW #2’s case. Inasmuch as we

conclude, for the reasons stated herein, that the evidence

regarding CW #1 cannot be considered with the evidence regarding

CW #2, CW #1’s testimony is not included herein.

C.

CW #2’s Testimony

CW #2 testified that in the early morning hours of

February 7, 2009, she was “down at Nuuanu [Avenue], behind [the

stores] Pali Longs [and] Safeway,” when Respondent drove up in a

Ford Mustang and asked her if she wanted to “cruise with him.”

CW #2 agreed and voluntarily entered the vehicle. As Respondent

drove over the Pali Highway, Respondent “kept saying, Oh I can

take you back if you’re scared. . . . I can go get somebody else.

If you want to go back, just tell me.” But CW #2 said, “I don’t

mind. We can go hang out.” As Respondent turned into a dark

neighborhood on Old Pali Road, he reiterated that he could take

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her back if she was scared. She finally said, “Okay, already.

. . . Just take me back[.]” Then, Respondent responded, “Oh,

why? Are you scared of me now?” CW #2 reached for the phone

“because [she] was scared”; Respondent grabbed it from her,

struck her face and the back of her head several times, grabbed

her hair, and pulled her down to the center console. CW #2 saw

blood dripping from her face onto the console. She also

indicated that when hit on the back of the head, she “blacked

out[,]” but eventually regained consciousness. Respondent

repeatedly told CW #2, “Shut the fuck up[,] . . . you’re going to

do what I tell you to do[,]” while grabbing her by the hair and

pulling her down. CW #2 thought she was going to die.

When CW #2 attempted to escape, Respondent told her,

“Oh, try and get out[,]” but when CW #2 grabbed the door handle,

he “grabbed [her] hair again” and said, “What the fuck are you

doing?” When she tried to pull away from Respondent, he began to

hit her on the back of the head with his fist or elbow. When she

began screaming and pleading for Respondent to let her go,

Respondent threatened, “Shut the fuck up or I’m going to shoot

you.” (Emphasis added.) CW #2 finally yanked her hair free from

Respondent’s hand and he said, “Oh, what the fuck are you doing?

I’m going to crack you again.” After that, CW #2 remained quiet

so that Respondent would not hurt her anymore.

As they headed down the windward side of the Pali

Highway, Respondent told CW #2 that he would let her go at a

nearby bus stop and give her money to catch the bus home. But as

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they passed the bus stop, Respondent continued to drive and

eventually turned into the Maunawili area. At some point, CW #2

attempted to turn off Respondent’s ignition and Respondent said,

“Look at what the fuck you did, bitch. . . . Oh, you want me to

crack you again?” Respondent remarked, “The last girl that was

with me got out, but she broke her collarbone.”7

Respondent continued to drive through the dark stretch

of Maunawili and eventually turned into Maunawili Elementary

School. As he pulled in, he said, “[Y]ou can tell your friends

this is where you got fucked.” He pulled into a dark area near a

dumpster and said, “[Y]ou’re going to do whatever I want you to

do and then you can go; You’ll be fine if you do it.” Respondent

then pulled CW #2 out of the vehicle by her hair and dragged her

to a bench.

At the bench, Respondent undressed, undressed CW #2,

put his penis “[i]nto her mouth” and forced CW #2 to perform oral

sex on him. She did not scream because she “was scared

[Respondent] was either going to hurt [her] or kill [her].”

Thereafter, Respondent laid down and instructed CW #2 “to get on

top of him.” She again complied, believing that “he was going to

hit [her] again or kill [her].” Respondent “put his penis into

7
It is noted that the court orally instructed the jury it was to
consider CW #2’s allegation that Respondent “made a statement to her about the
last person to jump out of the car got a broken collarbone,” “only as evidence
in this particular matter regarding [CW #2].” The court further instructed
that “evidence regarding each matter is to be considered separately and used
only in the charges pertaining to a particular incident.” The court stated,
“They don’t get in any way mixed up with each other. It can’t be considered
in any other way than . . . in regards to this particular incident, with this
particular witness[.]”

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[CW #2’s] vagina” and “made [her] suck his penis one more time.”

Then, he made CW #2 lay down on the bench, kissed her, bit her

lip, and spat inside her mouth as he placed “his hand . . . on

[her] neck area” and “press[ed] down on . . . [her] throat”

making it “hard to breathe.” Respondent also “touched [CW #2’s]

breast, and then [] put his mouth on her breast.” He told CW #2

that he was going to ejaculate “in [her] mouth” and she was

“going to swallow it.” CW #2 “got on top of him one more time”;

Respondent said, “Oh, get ready.” CW #2 “got off” of Respondent

and Respondent “grabbed her neck[,]” “stuck his penis into her

mouth and ejaculated”; he said, “Oh, you better swallow it.”

After the incident, Respondent said, “I’ll give you

your cell phone back” if you “just come with me back to my car.”

CW #2 told Respondent that she would meet him at the side of his

car so he could give it to her. She started walking quickly

toward the parking lot, but removed her shoes, and began running

toward the highway. She attempted to flag down several cars

until finally, Chad Ogawa (Ogawa) stopped. She ran up to his car

and said, “Sir, Sir, please help me, please help me[.]” As they

were driving, CW #2 saw that the Ford Mustang was still parked by

the dumpster. Ogawa could not see the license plate number so he

got out of the vehicle and walked towards the Ford Mustang.

Ogawa returned to the vehicle with the license plate number and

told CW #2 to save it in his cell phone.

Ogawa then drove CW #2 to a “7-Eleven” store to leave

her with one of his classmates, who “was going to call the cops.”

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After the police arrived, they took CW #2 to a residence where

she identified Respondent as her assailant and recognized the

Ford Mustang by a sticker that was on the windshield.

Ogawa’s Testimony

Ogawa testified that in early morning hours of

February 7, 2009, he was driving home from a nightclub, and as he

drove past Maunawili Elementary School, CW #2 ran up to his car

and asked him for help. CW #2 was “frantic”; her blouse was

ripped and she had blood on her lip. She told Ogawa that “she

just got raped at the school right across the street.” Ogawa

told her to get in the car and as they started driving past the

school, CW #2 said, “‘There he is.’” Ogawa got out of his car

and started “sneaking up to [Respondent’s] car.” Ogawa took down

the license plate number, and recorded it in his cell phone.

Ogawa then drove to 7-Eleven, where an employee at the gas

station called 911 and placed a report. Ogawa did not call the

police himself because he had an outstanding traffic warrant.

Dr. Lee’s Testimony

Petitioner’s expert witness, Dr. Lee, testified that on

February 7, 2009, he examined CW #2 at the Kapiolani Medical

Center’s Sex Abuse Treatment Center for three hours. Dr. Lee

testified that “[t]he purpose of [his] examination was to examine

the patient for any injuries that might need medical attention

and also to gather forensic evidence.” He explained that there

are two parts to the exam: the first part is the historical exam

to find out “the nature of your complaint and why you’re at the

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doctor’s office” and the second part of the exam is the physical

exam.

During the historical exam, CW #2 complained of pain in

her upper lip, a bleeding nose, pain on the left side of her face

and the back of her head, blood when she wiped after using the

restroom, pain on her left arm, and marks on her right hip. When

Dr. Lee asked her how the pain and bleeding started, she told him

that her assailant punched her nose, causing it to bleed; punched

her cheek and the back of her head, causing her to have a

headache and ringing in her ears; grabbed her arm, causing pain;

pulled her out of her car, causing pain on her right hip; punched

her lips and left side of her face; pulled her hair; and bit her

lip and left breast. CW #2 also told Dr. Lee that her assailant

“put his penis in her vagina[,]” and that she was scared because

he grabbed her throat, “made her massage his penis[,]” perform

oral sex on him, rubbed her genital area, fondled her breast and

entire body, kissed her breasts, spat in her mouth, and

ejaculated in her mouth and forced her to swallow. CW #2 told

Dr. Lee that “she did it” because she “was scared” and “[d]idn’t

want to get hit again.”

In addition, Dr. Lee testified that he asked CW #2 “if

there were any threats involved” and she said yes. (Emphasis

added.) According to Dr. Lee, CW #2 told him that Respondent

said “[she] wouldn’t be going home if [she] didn’t do what he

told [her] to do.” (Emphasis added.) Dr. Lee further testified

that CW #2 told him, “‘He said he would shoot me. He said I’d be

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lucky to go home today because most girls don’t go home[.]’”

(Emphasis added.)

During the physical examination, Dr. Lee found that CW

#2 had “tenderness” to her breast; “recent abrasions or scratches

on her ride side of her neck and her right thigh”; lesions on her

neck; “tenderness” and “pain in her left shoulder and arm”; “a

two-centimeter area” on the back of her neck “that was raised and

tender,” “consistent with a hematoma” or “lump” or “a ‘goose

egg[]’ on her scalp,” with “bleeding under the skin”; “a recent

contusion”; a “red” and “swollen lip”; tenderness on the bridge

of her nose; and multiple, recent contusions, bruises and

abrasions on her body. According to Dr. Lee, CW #2 had pain, but

no marks, on her right shoulder, at the bridge of her nose, and

in the cheek bone area.

In his pelvic examination, Dr. Lee observed some

redness on her external genitalia, indicating “that recently

there was some irritation there.” Dr. Lee also discovered a

loose black hair, which did not match CW #2's hair color. Id.

Dr. Lee “noted that at the time of [his examination,] there was

some scant pinkish vaginal discharge” and later in the

examination he “saw it coming from the . . . opening of the

cervix.” Dr. Lee “assumed that this was the beginning of a

menstrual period for her” because “blood coming from the cervix

is--you know, . . . a menstrual period.” When asked whether his

bimanual examination was “consistent with penetration of the

genital opening[,]” Dr. Lee responded, “Yes, it was.” Although

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he indicated that the bimanual examination, during which he

places “fingers inside of her vagina[,]” “was unremarkable,”

“normal,” Dr. Lee was asked on redirect examination, “[T]he fact

that you don’t see injuries to the genital area, does that rule

out a sexual assault?” He responded, “No, It does not.”8

At the close of Dr. Lee’s testimony, defense counsel

moved to strike Dr. Lee’s testimony regarding statements that CW

#2 was assaulted and threatened by Respondent, arguing that such

testimony has “nothing to do with a physical examination.” The

following exchange took place:
THE COURT: Under 803(b)(4)[9 ] statements for purposes
of medical diagnosis, the doctor has to do a thorough
diagnosis; and based on the diagnosis, it’s going to lead to
the appropriate treatment. So finding out, for instance,
whether an assault takes place or takes place with a
stranger or intimate family member is going to have to do
with the doctor’s treatment recommendations on staying away
from people, being close to people. Her talking about it in
her history of talking about it is an integral part of that.
And the treatment he may order may include psychological
counseling, may include post-traumatic stress disorder, if

8
On appeal, Respondent argued that the court erred in allowing Dr.
Lee to opine that his findings did not rule out sexual assault where there was
no physical evidence to support his opinion. According to Respondent, this
was error because “the testimony had the improper prejudicial effect of
bolstering CW # 2’s credibility.” Veikoso, 2010 WL 5037006, at *11. The ICA
rejected the argument, reasoning that Dr. Lee “testified that his findings did
not ‘rule out’ sexual assault.” Id.

9
Hawai#i Rules of Evidence (HRE) Rule 803(b)(4) (1993) provides:

Hearsay exceptions; availability of declarant
immaterial. The following are not excluded by the hearsay
rule, even though the declarant is available as a witness:
. . . .
(b) Other exceptions.
. . . .
(4) Statements made for purposes of medical
diagnosis or treatment and describing medical
history, or past or present symptoms, pain, or
sensations, or the inception or general
character of the cause or external source
thereof insofar as reasonably pertinent to
diagnosis or treatment.

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appropriate; and the only way that can come about is to get
the history from her. So the objection is noted, but it is
overruled under 803(b)(4).
And because [CW #2] is present, she’s going to be
available for cross-examination so there’s no confrontation
clause issue at this time.
[DEFENSE COUNSEL]: I’d just like to point out, [Y]our
[H]onor, that the purpose of this examination was not for
purposes of diagnosis and treatment. The purpose of this
examination was for--it’s a sex assault examination. So I
don’t believe the doctor even testified as to what
treatment, if anything, he was going to recommend. By
allowing this doctor to testify as to what [CW #2] may have
said will bolster--unnecessarily bolster the testimony of
[CW #2] in this case.
THE COURT: Okay. I think it’s for both. The
doctor’s examination is to look for evidence of sex assault
trauma, if that’s what really happened; but her statements
to him are for both diagnosis and treatment and referral.
So I think it’s for all of those purposes. So your
objection is noted and overruled.

(Emphasis added.)

Testimony of Cathy Matsuoka

Cathy Matsuoka (Matsuoka) testified that as to evidence

relating to CW #2, she examined dried secretion swabs, a blood

sample, vaginal swabs, pubic hair combings collected from CW #2,

four swab samples with blood-like substances collected from a

Ford Mustang, and a pair of jean shorts recovered from

Respondent. Matsuoka indicated that the samples were collected

from “the back cup holder on the driver’s side[,]” “the back cup
holder on the passenger side[,]” “the front cup holder on the

passenger side[,]” and the “middle storage compartment” of

Respondent’s vehicle. All swab samples collected from the Ford

Mustang were determined to be human blood and matched the DNA

profile of CW #2. Matsuoka also detected human blood on

Respondent’s jean shorts and determined that the DNA profile of

the blood matched CW #2’s DNA profile. As to CW #2’s vaginal

swabs, semen was indicated, but no male DNA was present in that

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particular sample. The DNA profile of the dried secretion swab

excluded Respondent as a possible contributor.

Closing Argument

Respondent did not testify at trial. During closing

argument, defense counsel again argued that CW #2 had consented

to having sex with Respondent, and that this was a case of

Respondent “not having money to pay for sex.” According to the

defense, after “taking the 120 dollars, [] there was a

disagreement.”

D.

Jury Verdict and Sentencing

On July 29, 2009, the jury found Respondent guilty on

all eight counts. On September 28, 2009, the court sentenced

Respondent.

IV.

On October 28, 2009, Respondent filed a notice of

appeal. Relevant to our disposition, Respondent argued on appeal

that the court erred in admitting Dr. Lee’s testimony regarding

Respondent’s threats and opinions regarding the lack of forensic

evidence. The ICA rejected all of Respondent’s other arguments,

but determined that the court erred in admitting Dr. Lee’s

testimony regarding alleged threats made by Respondent against CW

#2 and that such error was not harmless beyond a reasonable

doubt.

A.

In support of its conclusion that the court erred in

admitting Dr. Lee’s testimony regarding threats, the ICA noted

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that Hawai#i courts have not fully developed the reach of HRE

Rule 803(b)(4) as to the admissibility of threats. It was noted

that “[o]ther courts generally admit hearsay statements

describing the physical nature of the assault, as such statements

pertain to the “cause or external source of the injuries.”

Veikoso, 2010 WL 5037006, at *12 (citing Guam v. Ignacio, 10 F.3d

608, 613 (9th Cir. 1993)). The ICA concluded that “Dr. Lee’s

testimony regarding CW # 2’s description of the physical aspects

of the assault was admissible under this reasoning.” Id.

However, the ICA stated that as to statements regarding

fault, “courts have tended to adopt either a broad or narrow

interpretation of this hearsay exception.” Id. “Under the

narrower interpretation, courts will not admit hearsay statements

pertaining to fault[,] . . . including those regarding the

identity of the assailant[.]” Id. “Under the broader

interpretation, courts appear to be more willing to admit hearsay

statements assigning fault,” and in the child abuse context,

statements relating to the assailant’s identity. Id. It was

noted that “[s]everal jurisdictions have extended this reasoning

to domestic assault complainants, as their ongoing safety and

psychological treatment depends on the identity of the abuser.”

Id.

According to the ICA, however, “even courts employing

the broad interpretation generally do not admit statements

describing alleged threats the defendant made to the

complainant.” Id. The ICA stated that although only “[a]

handful of cases have dealt with the type of hearsay at issue in

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this case--alleged threats of the assailant[--t]he overwhelming

majority have held the threats inadmissible” as unrelated to

medical diagnosis or treatment. Id. at *13. The ICA adopted the

majority view, determining that Dr. Lee’s testimony regarding

alleged threats was inadmissible because “there is no testimony

linking [Respondent]’s alleged threats to the cause or inception

of CW # 2’s injuries.” Id. The ICA acknowledged that this court

has held that HRE 803(b)(4) “extends to statements made for the

purpose of psychological treatment.” Id. at *14 (citations

omitted).10 According to the ICA, although “alleged threats

could arguably be admissible if conveyed for the purpose of

psychological diagnosis or treatment, no such foundation was laid

here.” Id. In accordance with the foregoing, the ICA held that

the court erred in admitting the testimony under HRE Rule

803(b)(4). Id. at *15.

B.

The ICA then proceeded to consider whether the court’s

error was harmless beyond a reasonable doubt and held that it was

not. See id. According to the ICA, “in adult sexual assault

cases, the credibility of the complainant is paramount[]” and

where, as in this case, the defendant raises a defense of

consent, the complaining witness is “critical . . . as he or she

is often the sole eyewitness to what occurred.” Id. It was

10
The ICA cited to State v. Yamada, 99 Hawai#i 542, 546-47, 556, 57
P.3d 467, 471-72, 481 (2002), where this “court held that a videotape of the
defendant’s ‘reenactment’ of the events giving rise to prosecution was
admissible because the reenactment was conducted to aid the treating
psychologist in making a diagnosis.” Veikoso, 2010 WL 5037006, at *14.

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noted that Respondent “attempted to cast doubt upon CW # 2’s

credibility on several bases” including,
her failure to disclose to the [g]rand [j]ury that she was
working as a prostitute; her failure to disclose until the
week of trial that she had sex for a fee with another man
earlier that same night; her failure to report the incident
immediately after it happened; and discrepancies with her
[g]rand [j]ury testimony.

Id.

While acknowledging that Petitioner “presented limited

corroborating evidence from Dr. Lee and Ogawa,” the ICA found it
significant that “the statement concerning alleged threats went

to the heart of the key witness’s testimony[,]” was “not

cumulative to other evidence[,]” and “[s]everal of the most

damaging statements were conveyed solely through Dr. Lee’s

hearsay testimony.” Id. The ICA noted that, for example,

“CW # 2 never testified that [Respondent] told her ‘she’d be

lucky to go home today’” or that Respondent had allegedly

remarked that “‘most girls don’t go home.’” Id. (brackets

omitted). Thus, according to the ICA, “[t]he jury was [] allowed

to consider evidence it should not have heard[]” and “[t]he

threats to which CW # 2 did testify arguably were colored with

heightened credibility as a result of Dr. Lee’s improper

testimony.” Id. In the ICA’s view, “[t]he alleged threats,

relayed in raw terms as vivid and concrete quotations and

repeated several times, may have tipped the scale in favor of

CW # 2’s credibility.” Id. It therefore concluded “that there

is a reasonable possibility that the error might have contributed

to the conviction and we cannot conclude that the error was

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harmless beyond a reasonable doubt.” Id. The ICA’s conclusion

ultimately led to the filing of Petitioner’s Application, which

poses the only question before this court.

V.

Petitioner’s Application filed on May 2, 2011, sets

forth the following question: “In light of the overwhelming

evidence of [Respondent’s] sexual assaults and kidnapping

convictions involving CW #2, did the ICA err gravely in vacating

and remanding Counts 4 through 8 for a new trial on account of

Dr. Lee’s testimony concerning CW #2’s report of the threats

[Respondent] made against her?” Respondent filed a Response to

Petitioner’s Application on May 17, 2011 (Response).

VI.

A.

Petitioner does not challenge, but agrees with the

ICA’s conclusion that the court erred in admitting Dr. Lee’s

testimony regarding alleged threats made by Respondent against CW

#2 under HRE Rule 803(b)(4). Petitioner states that it “has no

quarrel with the ICA” as to its conclusion that the court “erred

in admitting” “Dr Lee’s testimony regarding CW #2’s report of

[Respondent’s] threats” “under HRS Rule 803(b)(4)” where “Dr. Lee

did not explain the connection between the threats and the

necessity of any treatment, psychological or otherwise.”

However, Petitioner disagrees “with the ICA’s ruling that the

error below was not harmless.”

Citing State v. Machado, 109 Hawai#i 445, 453-56, 127

P.3d 941, 949-52 (2006), Petitioner contends that “there was no

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reasonable possibility that the error contributed to

[Respondent]’s conviction.” According to Petitioner, in Machado,

the trial court admitted as an excited utterance a police

sergeant’s testimony regarding statements made to him by the

complainant upon arriving at her home. (Citing id. at 448-49,

127 P.3d at 944-45.) As Petitioner noted, this court determined

that although the circuit court erred in admitting the testimony

as an excited utterance, the error was harmless in light of the

entire record because even in the absence of the improper

testimony, “the [complainant’s] testimony and her 911 call[11]

established the elements of the . . . charges beyond a reasonable

doubt[.]” (Citing id. at 453-56, 127 P.3d at 949-52.)

Petitioner maintains that, in contrast to Machado, the

ICA “examined the error in isolation and purely in the

abstract[,]” “fail[ing] to balance the error against the

overwhelming, compelling evidence” supporting Respondent’s

convictions. First, Petitioner notes that the instant case did

not “present the typical ‘he said, she said’ credibility battle

between the victim and the accused” since Respondent “never

11
The complainant had placed a call to the police, which was played
for the jury. The 911 call included the following statements:

1. “Please hurry up he’s going to kill me, please hurry”
2. “My boyfriend Dennis Machado”
3. “He choked me and he, he tried to stab me with a
knife, please help me, please help me”
4. “He choked me and he, he choked and he held me on the
ground and stepped on my head, he pinned me down and
tried to stab me, and he slammed me into the wall,
please, please”
5. “Somebody’s here, the police are here”

Machado, 109 Hawai#i at 448, 127 P.3d at 944.

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testified, and indeed, presented no evidence on his behalf at

trial.” Thus, Petitioner avers that, because there was nothing

indicating that CW #2 was not credible, CW #2’s “testimony alone

evinced beyond a reasonable doubt that [Respondent] kidnapped her

with intent to subject her to sexual advance [and] terrorize her”

and that Respondent “sexually assaulted her on at least four

occasions by strong compulsion” and had other “sexual contact

with her by strong compulsion.”

Additionally, Petitioner points out that the scientific

evidence proved that “CW #2’s blood was in [Respondent’s] Mustang

and on his shorts.” According to Petitioner, such evidence

objectively establishes that Respondent’s sexual contact with CW

#2 was not consensual. In Petitioner’s view, the evidence was

also overwhelming because of the testimony of both complaining

witnesses. Based on the foregoing, Petitioner contends that

“[i]t is inconceivable that Dr. Lee’s testimony . . . might have

had anything to do with [Respondent’s] convictions in light of

the entire record.”

B.

Respondent’s Response states that Petitioner fails to

point to overwhelming, compelling evidence supporting

Respondent’s convictions. First, Respondent notes that “adult

sexual cases are often credibility contests” and here, CW #2’s

credibility was called into question on several different

grounds, including her “failure to inform the [g]rand [j]ury that

she was working as a prostitute, her eve-of-trial disclosure that

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she engaged in sex for a fee the same night as her encounter with

[Respondent], and other discrepancies between her testimony and

other accounts she gave under oath.” Thus, Respondent contends

that CW #2’s “testimony alone does not constitute ‘overwhelming,

compelling evidence’ that would render the [] court’s error

harmless beyond a reasonable doubt.”

Next, as to the presence of CW #2’s blood in

Respondent’s Mustang and on his shorts, Respondent contends that

such presence “can be interpreted in many different ways” and

“absolutely does not offer ‘objective’ conclusions of any kind,

especially in light of Dr. Lee’s testimony that CW #2 was

starting her menstrual period.”

Also, Respondent maintains that the evidence of both

complaining witnesses cannot be considered together. According

to Respondent, although the ICA stated that the evidence would

likely have been admissible against Respondent if the cases had

been tried separately to show modus operandi or identity, such

evidence would not be admissible to prove Respondent’s guilt. In

addition, Respondent notes that the jury received a cautionary

instruction prohibiting it from considering the evidence in such

a manner.

Finally, Respondent argues that although Petitioner

focuses on the ICA’s conclusion that “Dr. Lee’s testimony ‘may

have tipped the scale in favor of CW #2’s credibility,’” (quoting

Veikoso, 2010 WL 5037006, at *8), Petitioner “ignores the ICA’s

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thorough analysis of all the evidence[.]” Respondent points to

the following passage in support of the foregoing contention:
“The hearsay testimony was highly prejudicial to
[Respondent]. The alleged threats were repeated several
times and were presented as CW # 2’s own words. Moreover,
in adult sexual assault cases, the credibility of the
complainant is paramount. The complaining witness is
critical to establishing a lack of consent, as he or she is
often the sole eyewitness to what occurred. Although
[Petitioner] presented limited corroborating evidence from
Dr. Lee and Ogawa, CW # 2’s credibility was still critical
to establishing all five counts. [Respondent] argued a
defense of consent in his closing argument. He attempted to
cast doubt upon CW # 2’s credibility on several bases: her
failure to disclose to the [g]rand [j]ury that she was
working as a prostitute; her failure to disclose until the
week of trial that she had sex for a fee with another man
earlier that same night; her failure to report the incident
immediately after it happened; and discrepancies with her
[g]rand [j]ury testimony.”

(Quoting Veikoso, 2010 WL 5037006, at *15.)

VII.

“Regarding the erroneous admission of evidence by a

trial court, this court has said that[, e]ven if the trial court

erred in admitting evidence, a defendant’s conviction will not be

overturned if the error was harmless beyond a reasonable

doubt[.]” Machado, 109 Hawai#i at 452, 127 P.3d at 948 (internal

quotation marks and citation omitted). Under this standard,

“[t]he error is not to be viewed in isolation and considered

purely in the abstract.” Id. (internal quotation marks and

citation omitted). Rather, the error “must be examined in the

light of the entire proceedings and given the effect which the

whole record shows it to be entitled. In that context, the real

question becomes whether there is a reasonable possibility that

error might have contributed to conviction.” Id. at 452-53, 127

P.3d at 948-49 (internal quotation marks and citation omitted).

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VIII.

With respect to assessing whether the erroneous

admission of evidence was harmless beyond a reasonable doubt,

this court has stated that the “[m]ere sufficiency of the

evidence to support the jury verdict, apart from that aspect of

the case affected by the error, would not be enough.” State v.

Pokini, 57 Haw. 26, 30, 548 P.2d 1402, 1405 (1976). However,

Petitioner is correct that this court had held that “‘[w]here

there is a wealth of overwhelming and compelling evidence tending

to show the defendant guilty beyond a reasonable doubt, errors in

the admission or exclusion of evidence are deemed harmless.’”

State v. Toyomura, 80 Hawai#i 8, 27, 904 P.2d 893, 912 (1995)

(quoting State v. Nakamura, 65 Haw. 74, 80, 648 P.2d 183, 187

(1982)); accord State v. Rivera, 62 Haw. 120, 128, 612 P.2d 526,

532 (1980).

IX.

We first consider whether CW #1’s testimony may be

weighed in assessing whether there was overwhelming and

compelling evidence tending to show Respondent was guilty of

Counts 4-8 beyond a reasonable doubt. As indicated, the offenses

involving CW #1 and CW #2 were joined pursuant to HRPP Rule 8.

Respondent filed his Motion for Severance on May 6, 2009, arguing

that he would be prejudiced by the joinder of offenses. On

May 11, 2009, Petitioner filed its Memorandum in Opposition to

Respondent’s Motion for Severance, maintaining that the defendant

seeking severance has the burden of showing prejudice would

result from joinder of the offenses.

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Petitioner noted that one instance in which joinder may

deny a defendant a fair trial is where evidence damaging to the

defendant would not have been admissible if the offenses had been

tried separately. Petitioner contended that here (1) the

evidence supporting CW #1 would be admissible against Respondent

as to counts involving CW #2 to show intent, common scheme, plan,

design or modus operandi and (2) although consolidated trials

will almost always permit the admission of some evidence that

would not be admissible as to each and every count if tried

separately, any potential prejudice may be effectively dispelled

by a jury instruction that each count and the evidence that

applies to each count is to be considered separately. The court

denied Respondent’s Motion for Severance on June 4, 2009.

On appeal, Respondent argued that he was prejudiced by

the joinder. In considering the foregoing argument, the ICA

stated that Respondent was not prejudiced by inadmissable

evidence because the evidence of the incident involving CW #1

“would likely have been admissible to show modus operandi and

identity” because the “two incidents are so ‘strikingly similar

. . . as to support the inference that both were the handiwork of

the very same person.’” Veikoso, 2010 WL 5037006, at *8 (quoting

Commentary to HRE Rule 404). However, the ICA was incorrect.

Here, the testimony of CW #1 would not be admissible to

prove identity because identity was not disputed. Rather,

Respondent raised a defense of consent and suggested that CW #2

had fabricated the complaint because “at some point[,] . . .

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there was a dispute about the money being paid or not paid”;

“there was an agreement for $120[,]” but the $120 “was found

folded in [Respondent’s] pocket.” See supra. According to

Respondent, this was a case of Respondent “not having money to

pay for sex.” Thus, the testimony of CW #1 was not admissible

against Respondent as to Counts 4-8 to show identity.

Furthermore, this court has explained that modus

operandi evidence ultimately goes to identity and consequently,

where “the identity of the perpetrator of the crimes [is] not

denied, [] the admission of the other crimes evidence as proof of

modus operandi cannot be justified[.]” State v. Castro, 69 Haw.

633, 645, 756 P.2d 1033, 1042 (1988); see People v. Boyd, 851

N.E.2d 827, 836 (Ill. App. Ct. 2006) (stating that “[m]odus

operandi evidence ordinarily is not relevant where identity is

not at issue”; because “the defense theory was consent, the

identity of the offender was not at issue” and “[m]odus operandi

would not have been a relevant basis to admit the other crimes

evidence”); Rosky v. State, 111 P.3d 690, 698 (Nev. 2005)

(stating that “[g]enerally, modus operandi evidence is proper in

situations where a positive identification of the perpetrator has

not been made, and the offered evidence establishes a signature

crime so clear as to establish the identity of the person on

trial”) (internal quotation marks and citations omitted). Again,

because identity was not in dispute in this case, CW #1’s

testimony was not admissible against Respondent as to charges

involving CW #2 to show modus operandi. Nevertheless, excluding

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CW #1’s testimony, there was overwhelming evidence presented

tending to show that Respondent was guilty of Counts 4-8 beyond a

reasonable doubt.12

X.

A.

As noted supra, Respondent was charged with two counts

of Sexual Assault in the First Degree. As to Count 4, the jury

was instructed that the offense of Sexual Assault in the First

Degree has three material elements: (1) Respondent subjected CW

#2 to an act of sexual penetration13 by inserting his penis into

12
Although the jury heard CW #1’s testimony, here, the court
instructed the jury that it was to consider the evidence that applies to each
count separately. At the close of trial, the court instructed the jury as
follows:

The defendant is charged with more than one offense under
separate counts in the indictment. Each count and the
evidence that applies to that count is to be considered
separately. The fact that you may find the defendant not
guilty, or guilty of one of the counts charged, does not
mean that you must reach the same verdict with respect to
any other count charged.

Thus, we may presume that the jury did not consider CW #1’s testimony in
reaching its verdict as to Counts 4-8. See State v. Webster, 94 Hawai#i 241,
248-49, 11 P.3d 466, 473-74 (2000) (“A jury is presumed to follow the court’s
instructions.” (Quoting State v. Cardus, 86 Hawai#i 426, 438, 949 P.2d 1047,
1059 (App. 1997).)).

13
HRS § 707-700 (Supp. 2009) defines “sexual penetration” as
follows:

“Sexual penetration” means:
(1) 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.
As used in this definition, “genital opening”
includes the anterior surface of the vulva or
labia majora; or
(2) Cunnilingus or anilingus, whether or not actual
penetration has occurred.

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her mouth, (2) by strong compulsion,14 and (3) did so knowingly15

as to each element of the offense. As to Count 5, the jury was

instructed that the elements of Sexual Assault in the First

Degree were: (1) Respondent subjected CW #2 to an act of sexual

penetration by inserting his penis into her genital opening,

(2) by strong compulsion, and (3) did so knowingly as to each

element of the offense.

1.

As to the element of “sexual penetration” under Count

4, CW #2 testified that Respondent put his penis “[i]nto [her]

mouth” and forced her to perform oral sex on him. She further

testified that after forcing her to have vaginal sex, Respondent

“made [her] suck his penis one more time.” Then, according to CW

#2, Respondent told her that he was going to ejaculate “in [her]

mouth[,]” “stuck his penis into her mouth[,] ejaculated[,]” and

said, “[Y]ou better swallow it.” CW #2’s testimony was

14
HRS § 707-700 (1993) defines “strong compulsion” as follows:

“Strong compulsion” means the use of or attempt to use
one or more of the following to overcome a person:
(1) A threat, express or implied, that places a
person in fear of bodily injury to the
individual or another person, or in fear that
the person or another person will be kidnapped;
(2) A dangerous instrument; or
(3) Physical force.

(Emphases added.)

15
HRS § 702-206(2) (1993) defines “knowingly” as follows:

(a) A person acts knowingly with respect to his conduct
when he is aware that his conduct is of that nature.
(b) A person acts knowingly with respect to attendant
circumstances when he is aware that such circumstances
exist.
(c) A person acts knowingly with respect to a result of
his conduct when he is aware that it is practically
certain that his conduct will cause such a result.

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corroborated by Dr. Lee’s testimony that CW #2 told him during

her physical examination that her assailant made her perform oral

sex on him, ejaculated in her mouth, and made her swallow.

As to the element of “sexual penetration” under

Count 5, CW #2 testified that Respondent “put his penis into

[her] vagina[.]” The foregoing testimony was corroborated in

this case by Dr. Lee’s testimony that CW #2 related to him during

her physical examination that her assailant “put his penis in her

vagina.” Dr. Lee also indicated that his bimanual examination

was “consistent with penetration of the genital opening.” In

addition, according to the testimony of Ogawa, when CW #2 ran up

to his car, her blouse was ripped and she told him immediately

upon entering his vehicle that “she just got raped at the school

right across the street.”

2.

As to the element of “strong compulsion” under both

Counts 4 and 5, there was evidence that Respondent used both

“threat[s],” plac[ing] [CW #2] in fear of bodily injury” or “in

fear that [she would] . . . be kidnapped[,]” and “physical force”

“to overcome CW #2.” HRS § 707-700. As to threats, CW #2

testified that Respondent repeatedly told her, “Shut the fuck

up[,] . . . you’re going to do what I tell you to do”; when she

started screaming, Respondent threatened, “Shut the fuck up or

I’m going to shoot you”; when Respondent grabbed CW #2’s hair

after she grabbed the handle of Respondent’s vehicle, CW #2

pulled free and Respondent said, “Oh, what the fuck are you

doing? I’m going to crack you again”; while driving, CW #2

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turned off Respondent’s ignition and Respondent said, “Look at

what the fuck you did, bitch. . . . Oh, you want me to crack you

again?”; at some point after she had attempted to escape from his

vehicle, Respondent told CW #2 that “[t]he last girl that was

with [him] got out, but she broke her collarbone”; upon arriving

at Maunawili Elementary School, Respondent warned, “[Y]ou’re

going to do whatever I want you to do and then you can go; You’ll

be fine if you do it.”

There was also evidence that Respondent used

“[p]hysical force” to overcome CW #2. CW #2 testified that

Respondent struck her in the face and the back of the head

several times, grabbed her hair, and pulled her down to the

center console, causing her to bleed and “black[] out.” She

stated that when she attempted to free her hair from Respondent’s

hands, he hit her on the back of the head with his fist or elbow.

Once at the school, Respondent dragged her by the hair to a bench

before demanding her to perform oral and vaginal sex. He then

placed his hands on her neck and pressed down on her throat,

making it difficult for her to breathe, and ejaculated in her

mouth.

CW #2’s testimony regarding the physical force used by

Respondent against her was corroborated by Dr. Lee’s testimony.

As recounted, Dr. Lee testified that CW #2 related to him that

her assailant punched her nose, causing it bleed; punched her

cheek and the back of her head, causing her to have a headache

and ringing in her ears; grabbed her arm, causing pain; pulled

her out of her car, causing pain on her right hip; punched her

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lips and left side of her face; pulled her hair; and bit her lip

and left breast.

Dr. Lee further testified that during his physical

examination of CW #2, he observed “tenderness” in her breast;

“recent abrasions or scratches on her ride side of her neck and

her right thigh”; lesions on her neck; “tenderness” and “pain in

her left shoulder and arm”; “a two-centimeter area” on the back

of her neck “that was raised and tender,” “consistent with a

hematoma” or “lump” or “a goose egg[] on her scalp,” with

“bleeding under the skin”; “a recent contusion”; a “red” and

“swollen lip”; tenderness on the bridge of her nose; and

multiple, recent contusions, bruises and abrasions on her body.

CW #2’s testimony regarding Respondent’s use of physical force

against her was also corroborated by Ogawa’s testimony that CW #2

had blood on her lip when she ran up to his car and asked for

help.

In addition, the physical evidence presented in this

case confirmed that CW #2’s blood was in Respondent’s vehicle and

on his shorts, further corroborating CW #2’s testimony.

Respondent contends that the physical evidence does not offer

“‘objective’ conclusions of any kind, especially in light of Dr.

Lee’s testimony that CW #2 was starting her menstrual period.”

However, it is significant that Matsuoka testified the blood was

discovered on the “middle compartment” and “cup holder” of

Respondent’s vehicle, which corroborates CW #2’s testimony that

Respondent pulled her down to the center console, causing her to

bleed.

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Finally, there was evidence that Respondent’s threats

and force was sufficient to overcome CW #2. According to CW #2’s

testimony, she did not scream and complied with Respondent’s

demands because she was “scared [he] was going to hit [her] [] or

kill [her].” CW #2’s testimony in that regard was corroborated

by Dr. Lee’s testimony that CW #2 told Dr. Lee that “she did it”

because she “was scared” and “[d]idn’t want to get hit again.”

3.

As to the requisite state of mind under Counts 4 and 5,

a person acts “knowingly” with respect to his or her conduct when

he is aware that his conduct is of that nature. HRS § 702-

206(2). This court has stated that “it is not necessary for the

prosecution to introduce direct evidence of a defendant’s state

of mind in order to prove that the defendant acted intentionally,

knowingly or recklessly.” State v. Eastman, 81 Hawai#i 131,

140-41, 913 P.2d 57, 66-67 (1996) (citing State v. Rushing, 62

Haw. 102, 106, 612 P.2d 103, 106-07 (1980)). “Given the

difficulty of proving the requisite state of mind by direct

evidence in criminal cases, proof by circumstantial evidence and

reasonable inferences arising from circumstances surrounding the

defendant’s conduct is sufficient.” Id. (citing State v. Batson,

73 Haw. 236, 254, 831 P.2d 924, 934 (1992)). “The mind of an

alleged offender may be read from his acts, conduct and

inferences fairly drawn from all the circumstances.” Id. (citing

Batson, 73 Haw. at 254, 831 P.2d at 934).

As to whether Respondent knowingly subjected CW #2 to

an act of sexual penetration under Count 4, CW #2 testified that

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Respondent dragged her to a bench, undressed himself and CW #2

before inserting his penis “[i]nto her mouth” and forcing her to

perform oral sex on him. According to CW #2’s testimony,

Respondent then told her that he was going to ejaculate “in [her]

mouth” and she was “going to swallow it.” He then placed his

penis into CW #2’s mouth a second time and ejaculated therein.

It may be “‘reasonabl[y] infer[red] [] from [the] circumstances

surrounding [Respondent]’s conduct[,]’” Eastman, 81 Hawai#i at

140-41, 913 P.2d at 66-67 (citing Batson, 73 Haw. at 254, 831

P.2d at 934), that Respondent was “aware” he was placing his

penis in CW #2’s mouth, thereby indicating that he knowingly

subjected CW #2 to an act of sexual penetration under Count 4.

As to whether Respondent knowingly subjected CW #2 to

an act of sexual penetration under Count 5, CW #2 testified that

when they arrived at the school, Respondent said, “[Y]ou can tell

your friends this is where you got fucked.” Before placing his

penis into her vagina, Respondent dragged CW #2 by the hair to a

bench, undressed himself and CW #2, and instructed CW #2 “to get

on top of him.” It may be reasonably inferred from the

circumstances surrounding Respondent’s conduct that Respondent

was “aware” he was placing his penis into CW #2’s vagina, and

therefore, knowingly subjected CW #2 to an act of sexual

penetration under Count 5.

As to the element of strong compulsion, CW #2 testified

that Respondent continued to use force against her even after she

started bleeding and blacked out. After being threatened and hit

several times, CW #2 began screaming, but Respondent continued to

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threaten and use force against CW #2. In addition, Respondent

threatened and used force against CW #2 more than once. It may

be inferred from the circumstances that Respondent was “aware” he

was using threats and force to overcome CW #2, and therefore,

knowingly subjected CW #2 to acts of sexual penetration by strong

compulsion.

In light of the foregoing, there was “overwhelming

. . . evidence tending to show [Respondent] guilty [of Counts 4

and 5] beyond a reasonable doubt[.]” Toyomura, 80 Hawai#i at 27,

904 P.2d at 912.

B.

With respect to Counts 6 and 7, Respondent was charged

with two separate counts of Sexual Assault in the Third Degree.

The jury was instructed as to Count 6 that the offense of Sexual

Assault in the Third degree has three material elements:

(1) Respondent subjected CW #2 to sexual contact16 by placing his

hand on her breast, (2) by strong compulsion, (3) and did so

knowingly as to each element of the offense. The jury was

instructed that the elements of Counts 7 were: (1) Respondent

subjected CW #2 to sexual contact by placing his mouth on her

breast, (2) by strong compulsion, (3) and did so knowingly as to

each element of the offense.

16
HRS § 707-700 (Supp. 2009) defines “sexual contact” as follows:

“Sexual contact” means 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.

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1.

With respect to the first element of Counts 6 and 7, CW

#2 testified that Respondent “touched [her] breast, and . . . put

his mouth on her breast.” Dr. Lee corroborated the foregoing,

testifying that CW #2 related to him during her physical

examination that her assailant “fondled her . . . boobs” and

“kissed her breasts[.]” He also testified that CW #2 told him

that her assailant had bitten her breast, and noted that during

his physical examination of CW #2, she had “minimal tenderness”

in her left breast, meaning that “when Dr. Lee” touched it[, CW

#2] was sensitive or . . . sore[.]”

2.

As discussed in the previous section, there was

evidence supporting the element of strong compulsion for purposes

of Counts 6 and 7.

3.

With respect to whether Respondent knowingly subjected

Respondent to sexual contact under Counts 6 and 7, as indicated

in the previous section, prior to Respondent placing his hand and

mouth on CW #2’s breast, he dragged her to a bench by the hair,

undressed himself and CW #2, and forced her to perform oral and

vaginal sex. Thereafter, he “laid [her] down on the bench[,]”

“kissed [her,]” and touched and placed his mouth on her breast.

It may be reasonably inferred from the circumstances surrounding

Respondent’s conduct that Respondent was “aware” he was touching

and placing his mouth on CW #2’s breast, and therefore, knowingly

subjected CW #2 to sexual contact.

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With respect to the element of strong compulsion, for

the reasons discussed in the previous section, it may be inferred

from the circumstances that Respondent was aware he was using

threats and force to overcome CW #2. Thus, there was evidence

that Respondent knowingly subjected CW #2 to sexual contact, by

strong compulsion.

Based on the foregoing, there was “overwhelming and

compelling evidence tending to show [Respondent] guilty [of

Counts 6 and 7] beyond a reasonable doubt” such that the “errors

in the admission” of Dr. Lee’s testimony regarding threats may be

“deemed harmless.” Toyomura, 80 Hawai#i at 27, 904 P.2d at 912

(internal quotation marks and citation omitted).

C.

The jury was instructed as to Count 8 that the offense

of Kidnapping has three material elements: (1) Respondent

restrained CW #2,17 (2) intentionally18 or knowingly,19 (3) with

17
HRS § 707-700 (1993) defines “restrain” as follows:

“Restrain” means to restrict a person’s movement in
such a manner as to interfere substantially with the
person’s liberty:
(1) By means of force, threat, or deception; or
(2) If the person is under the age of eighteen or
incompetent, without the consent of the
relative, person, or institution having lawful
custody of the person.

(Emphasis added.)

18
HRS § 702-206(1) (1993) defines “intentionally” as follows:

(a) A person acts intentionally with respect to his
conduct when it is his conscious object to engage in
such conduct.
(b) A person acts intentionally with respect to attendant
circumstances when he is aware of the existence of
such circumstances or believes or hopes that they
exist.

(continued...)

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intent to inflict bodily injury upon CW #2 or subject CW #2 to a

sexual offense or terrorize CW #2. HRS § 707-720(d) & (e).

1.

As to the element of restraint, there was evidence that

Respondent “restrict[ed CW #2]’s movement in such a manner as to

interfere substantially with [CW #2]’s liberty . . . [b]y means

of force” and “threat.” HRS § 707-700. As to the use of force

to restrain CW #2, CW #2 testified that when she asked Respondent

to take her back and reached for her phone, Respondent grabbed it

from her, struck her in the face and the back of the head several

times, grabbed her hair, and pulled her down to the center

console, causing her to bleed and “black[] out.” When CW #2

attempted to escape from the vehicle, Respondent told her, “Oh,

try and get out[,]” but when she grabbed the door handle, he

“grabbed [her] hair again” and said, “What the fuck are you

doing?” Then, when she tried to pull her hair away from

Respondent, he hit her on the back of her head with his fist or

elbow. As stated, CW #2’s testimony regarding the use of force

against her was corroborated by the testimonies of Dr. Lee and

Ogawa, as well as the physical evidence presented. See supra.

As to the use of threats to restrain CW #2, CW #2

testified that when she started screaming and pleaded for

Respondent to let her go, Respondent said, “Shut the fuck up or

18
(...continued)
(c) A person acts intentionally with respect to a result
of his conduct when it is his conscious object to
cause such a result.

19
See supra note 15 for the definition of “knowingly.”

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I’m going to shoot you.” Respondent repeatedly warned, “Shut the

fuck up[,] . . . you’re going to do what I tell you to do.”

According to CW #2’s testimony, she attempted to open the door to

the vehicle but Respondent grabbed her hair and said, “Oh, what

the fuck are you doing? I’m going to crack you again.” After

she had tried to escape, Respondent told CW #2 that “[t]he last

girl that was with [him] got out, but [] broke her collarbone.”

Then, upon arriving at the school, Respondent told her, “[Y]ou’re

going to do whatever I want you to do and then you can go; You’ll

be fine if you do it.” She eventually kept quiet and ceased from

attempting to escape because she was afraid Respondent would hurt

or kill her.

2.

As to the second element of Kidnapping, Respondent must

have intentionally or knowingly restrained CW #2 by use of

threats or force. A person acts intentionally with respect to

his conduct when it is his conscious object to engage in such

conduct. HRS § 702-206(1). Here, there was evidence indicating

that Respondent’s use of force was specifically in response to CW

#2’s requests for Respondent to let her go and attempts to

escape. According to CW #2, after she entered Respondent’s

vehicle, when she told him to take her back, Respondent said,

“Oh, why? Are you scared of me now?” When CW #2 reached for her

cell phone because she was scared, Respondent struck her in the

face and back of the head. Thereafter, he told her to try to

escape, but he grabbed her by the hair and struck her on the back

of her head with his fist or elbow when she tried to break free.

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Similarly, Respondent’s threats against CW #2 were also

made specifically in response to CW #2’s request to let her go

and attempts to escape. When CW #2 began screaming and pleaded

with Respondent to let her go, Respondent threatened to shoot CW

#2. When she tried to escape from his vehicle, he threatened to

strike her again. He then warned that another female’s attempt

to escape resulted in the female breaking her collarbone.

Respondent told CW #2 that if she did as he told her to, she

would be “fine.” Here, there was evidence from which it may be

inferred that it was Respondent’s conscious object to restrain CW

#2 by means of threat of force.

As noted, a person acts “knowingly” with respect to his

conduct when he is aware that his conduct is of that nature. HRS

§ 702-206(2). It may also be inferred from the foregoing

evidence that Respondent was “aware” he was restraining CW #2 by

use of threat or force.

3.

As to the third element of Kidnapping, there was

evidence that Respondent restrained CW #2 with intent to inflict

bodily injury upon CW #2, subject CW #2 to a sexual offense or

terrorize CW #2. HRS § 707-720(d) & (e). As discussed supra,

there was corroborated evidence that Respondent restrained CW #2

for the purpose of terrorizing her with threats and to inflict

bodily injury on her. There was also evidence that Respondent

restrained her for the purpose of committing a sexual offense,

i.e., sexual assault in the first and third degrees. See supra.

In sum, there was “overwhelming and compelling evidence tending

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to show [Respondent] guilty [of Count 8] beyond a reasonable

doubt,” such that the “errors in the admission” of Dr. Lee’s

testimony regarding threats may be “deemed harmless.” Toyomura,

80 Hawai#i at 27, 904 P.2d at 912 (internal quotation marks and

citation omitted).

XI.

According to the ICA, the admission of Dr. Lee’s

threats was not harmless beyond a reasonable doubt because, in

its view, the testimony “may have tipped the scale in favor of CW

#2’s credibility.” Veikoso, 2010 WL 5037006, at *15. However,

even if the ICA was correct, Dr. Lee’s improper testimony

regarding threats would have bolstered or corroborated CW #2’s

testimony, if at all, only as to the alleged threats made by

Respondent against her. With respect to Counts 4 through 7, the

evidence of the other threats would support the element of strong

compulsion. Notably, however, the element of strong compulsion

may be proved by establishing that the actor used threats or

force against a person. See HRS § 707-700 (defining “strong

compulsion” as “the use of or attempt to use” “[a] threat,

express or implied, that places a person in fear of bodily injury

to the individual or another person, or in fear that the person

or another person will be kidnapped[] . . . or . . . [p]hysical

force” “to overcome a person”) (emphases added). Similarly, as

to Count 8, evidence of threats would support the element of

restraint. But, that element may likewise be proved by

establishing that the actor used threats or force against a

person. See id. (defining “restraint” as “restrict[ing] a

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person’s movement in such a manner as to interfere substantially

with the person’s liberty . . . [b]y means of force, threat, or

deception”) (emphasis added).

Here, there were numerous instances of threats other

than the two objectionable ones related by Dr. Lee, that were

corroborated by the evidence. Additionally, there was compelling

evidence that Respondent not only threatened CW #2, but also used

force against her. That testimony would not have been bolstered

by Dr. Lee’s improper testimony regarding threats. Rather, CW

#2’s testimony regarding force was corroborated by admissible

testimony by Dr. Lee regarding physical injuries, Ogawa’s

testimony, and the physical evidence presented in this case.

Hence, there was overwhelming evidence of force used by

Respondent to overcome CW #2, which would establish the element

of “strong compulsion” for purposes of Sexual Assault in the

First and Third Degree, and the element of “restraint” for

purposes of Kidnapping, beyond Dr. Lee’s testimony regarding the

two challenged threats. See State v. Haili, 103 Hawai#i 89, 106,

79 P.3d 1263, 1280 (2003) (concluding that “[t]he erroneous

admission of evidence that [the victim] told others that [the

defendant] was threatening to kill her” was “harmless” because

“[e]ven without the admission of this hearsay testimony, the jury

still would have heard testimony that [the defendant] threatened

[the victim’s] life”); see also State v. Perez, 64 Haw. 232, 234,

638 P.2d 335, 337 (1981) (stating that even if it could be said

that the trial court erred in admitting testimony regarding the

contents of an anonymous phone call, the error was harmless

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beyond a reasonable doubt because “[t]he anonymous phone call was

not the only evidence that connected appellant to the victim”;

the victim identified the defendant’s picture as her attacker,

noted that the defendant was wearing the same coat he was wearing

when she was attacked, and also identified him in court). In

that light, there is no “possibility” of a “reasonable” nature

that the error “contributed to [Respondent’s] conviction.”

Machado, 109 Hawai#i at 452, 127 P.3d at 948. Thus, the error

was harmless beyond a reasonable doubt.

XII.

Based on the foregoing, the ICA gravely erred in

concluding that Dr. Lee’s testimony regarding two threats was not

harmless beyond a reasonable doubt. Veikoso, 2010 WL 5037006, at

*15. Accordingly, we reverse the February 1, 2011 Judgment of

the ICA insofar as it vacated the court’s September 28, 2009

Judgment as to Respondent’s conviction for Counts 4-8, and we

reinstate and affirm the court’s said September 28, 2009 Judgment

as to Counts 4-8.

James M. Anderson, Deputy /s/ Mark E. Recktenwald
Prosecuting Attorney,
City & County of Honolulu, /s/ Paula A. Nakayama
for petitioner/plaintiff-
appellee. /s/ Simeon R. Acoba, Jr.

Randall K. Hironaka /s/ James E. Duffy, Jr.
(Miyoshi & Hironaka),
(Joyce Matsumori-Hoshijo /s/ Sabrina S. McKenna
on the briefs), for
respondent/defendant-
appellant.

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