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Electronically Filed
Supreme Court
SCWC-10-0000101
05-DEC-2012
09:31 AM
IN THE SUPREME COURT OF THE STATE OF HAWAI#I
---o0o---
STATE OF HAWAI#I, Respondent/Plaintiff-Appellee,
vs.
JAMES MUNDON, Petitioner/Defendant-Appellant.
SCWC-10-0000101
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-10-0000101; CR. NO. 05-1-0206)
December 5, 2012
NAKAYAMA, ACTING C.J., ACOBA, MCKENNA, AND POLLACK JJ., AND
CIRCUIT JUDGE NISHIMURA, IN PLACE OF RECKTENWALD, C.J., RECUSED
OPINION OF THE COURT BY ACOBA, J.
We hold, that the Circuit Court of the Fifth Circuit
(the court)1 erred by permitting Respondent/ Plaintiff-Appellee
State of Hawai#i (Respondent) to introduce evidence of acts
allegedly committed by Petitioner/Defendant-Appellant James
Mundon (Petitioner) for which a jury had acquitted him in a prior
trial. The introduction of such evidence violates the principle
of collateral estoppel embodied in the double jeopardy clause of
1
The Honorable Kathleen Watanabe presided.
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article I, section 10 of the Hawai#i Constitution. Because of
the likelihood of retrial, we also hold that the court (1) did
not err in denying Petitioner’s discovery request because any
error was harmless, (2) did not improperly limit Petitioner’s
cross-examination by sustaining Respondent’s objection to
Petitioner’s question regarding whether he “released” the
complaining witness (hereafter Complainant) for purposes of the
kidnapping offense, (3) erred in allowing Respondent and
witnesses to use the term “victim” in their testimony, but that
any such error was harmless and (4) erred by using information
not provided to Petitioner as a basis for determining
Petitioner’s sentences.
For the reasons stated herein, we (1) affirm
Petitioner’s convictions for two counts of Assault in the Third
Degree, (2) vacate his convictions for Attempted Sexual Assault
in the First Degree and Kidnapping, and (3) vacate the court’s
sentence on Petitioner’s convictions for the two counts of
Assault in the Third Degree. In that light, we affirm in part
and vacate in part the Judgment, Guilty Conviction, and Sentence
entered by the court on October 13, 2010; affirm in part2 and
vacate in part the June 27, 2012 judgment of the ICA filed
2
Before the Intermediate Court of Appeals (ICA), Petitioner
challenged the court’s order that Petitioner pay restitution for Complainant’s
backpack because “restitution was not included in his original sentence.”
State v. Mundon, No. CAAP-10-0000101, 2012 WL 1473433, at *5 (App. Apr. 27,
2012) (hereinafter “Mundon II”). The ICA determined that” restitution for
Complainant’s backpack . . . violate[d] Hawai#i Revised Statutes (HRS) §
706–609 (Supp. 2004), which prohibits an increased sentence after an
appeal[.]” Id. Neither party challenged the ICA’s ruling in this regard and
therefore we affirm this part of the ICA’s Summary Disposition Order.
2
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pursuant to its April 27, 2012 SDO; and remand to the court for
further proceedings consistent with this opinion.
I.
A.
On August 15, 2005, Respondent filed a twenty-eight-
count indictment against Petitioner, all stemming from alleged
incidents occurring on the evening of February 4, 2004, and the
early morning of February 5, 2004. In his first trial,
Petitioner represented himself, with stand-by counsel. On the
charges, Petitioner was acquitted of all four counts (counts 1,
2, 3, and 22) of Sexual Assault in the Third Degree3
(Petitioner’s hand on Complainant’s genitals), all five counts
(counts 5-9) of Sexual Assault in the Third Degree (Petitioner’s
hand on Complainant’s breast), all twelve counts (counts 10-21)
of Sexual Assault in the Third Degree (Petitioner’s mouth on
Complainant’s breast), one of two counts of Terroristic
Threatening in the First Degree (TT1)4 (count 26), and one count
(count 23) of Attempted Sexual Assault in the Third Degree5
3
HRS § 707-732(1)(f) (Supp. 2004) states that “[a] person commits
the offense of sexual assault in the third degree if . . . [t]he person
knowingly, by strong compulsion, has sexual contact with another person or
causes another person to have sexual contact with the actor.
4
At the time of the offense, HRS § 707-716(1)(d) (1993) provided
that “[a] person commits the offense of terroristic threatening in the first
degree if the person commits terroristic threatening . . . [w]ith use of a
dangerous instrument[.]”
5
HRS § 705-500 (1993) provides as follows:
§ 705-500 Criminal Attempt
(1) A person is guilty of an attempt to commit a crime if the
person:
(continued...)
3
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(Complainant’s hand on Petitioner’s penis).
Petitioner was found guilty on one count of TT1 (count
4), one count of Kidnapping6 (count 24), one count of Assault in
the Third Degree7 (count 25), one count (count 27) of Attempted
Assault in the First Degree,8 and one count (count 28) of
5
(...continued)
(a) Intentionally engages in conduct which would
constitute the crime if the attendant
circumstances were as the person believes them
to be; or
(b) Intentionally engages in conduct which, under
the circumstances as the person believes them to
be, constitutes a substantial step in a course
of conduct intended to culminate in the person's
commission of the crime.
(2) When causing a particular result is an element of the
crime, a person is guilty of an attempt to commit the
crime if, acting with the state of mind required to
establish liability with respect to the attendant
circumstances specified in the definition of the
crime, the person intentionally engages in conduct
which is a substantial step in a course of conduct
intended or known to cause such a result.
(3) Conduct shall not be considered a substantial step
under this section unless it is strongly corroborative
of the defendant's criminal intent.
6
HRS § 707-720(1)(d) (1993) provides that “[a] person commits the
offense of kidnapping if the person intentionally or knowingly restrains
another person with intent to . . . [i]nflict bodily injury upon that person
or subject that person to a sexual offense[.]”
7
HRS § 707-712 (1993) provides as follows:
§ 707-712 Assault in the third degree. (1) A person
commits the offense of assault in the third degree if the
person:
(a) Intentionally, knowingly, or recklessly causes
bodily injury to another person; or
(b) Negligently causes bodily injury to another
person with a dangerous instrument.
(2) Assault in the third degree is a misdemeanor
unless committed in a fight or scuffle entered into by
mutual consent, in which case it is a petty misdemeanor.
8
HRS § 707-710 (1993) states that “[a] person commits the offense
of assault in the first degree if the person intentionally or knowingly causes
(continued...)
4
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Attempted Sexual Assault in the First Degree (attempted digital
penetration)9.
On certiorari from the first trial, this court
concluded that (1) because, in support of the Attempted Sexual
Assault in the First Degree charge (count 28), Respondent offered
evidence that Petitioner “stuck his hand in the [C]omplainant’s
underwear and touched her outer labia three times[,]” and “[t]he
evidence and the reasonable inferences therefrom established that
[Petitioner] made three separate attempts to subject the
[C]omplainant to an act of sexual penetration[,]” it was plain
error for the court not to issue a specific unanimity instruction
advising the jury that all twelve of its members must agree on
which of the three acts supported count 28, State v. Mundon, 121
Hawai#i 339, 350, 352-53, 219 P.3d 1126, 1137, 1139-40 (2009)
(hereinafter, “Mundon I”); (2) because the prosecution argued to
the jury in support of the two TT1 counts (counts 4 and 26) that
there were two separate instances in which Petitioner threatened
Complainant with a knife, and no specific unanimity instruction
was given to the jury, it was impossible to know whether all
twelve jurors agreed that the same underlying act supported the
TT1 conviction, id. at 353-55, 219 P.3d at 1140-42; (3) the trial
8
(...continued)
serious bodily injury to another person.”
9
HRS § 707-730(1)(a) (Supp. 2004) states: “A person commits the
offense of sexual assault in the first degree if . . . [t]he person knowingly
subjects another person to an act of sexual penetration by strong
compulsion[.]”
5
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court’s denial of Petitioner’s motions seeking written
transcripts of the preliminary hearing and grand jury proceedings
was not harmless beyond a reasonable doubt, id. at 355-58, 219
P.3d at 1142-45; and (4) Petitioner was denied his constitutional
due process right to adequately prepare his defense when the
trial court proceeded with motions in limine although Petitioner
did not have his trial materials and could not properly respond
to the prosecution’s motions in limine, id. at 358-59, 219 P.3d
at 1145-46. This court reversed Petitioner’s conviction for the
one TT1 count (count 4),10 and vacated Petitioner’s remaining
convictions (counts 24, 25, 27, and 28) and remanded the case for
a new trial. Id. at 372, 219 P.3d at 1159.
II.
On remand at Petitioner’s second trial, the charges
were renumbered as follows: count 1--Attempted Sexual Assault in
the First Degree, HRS §§ 705-500 and 707-730(1)(a) (renumbered
from Count 28); count 2--Kidnapping, HRS § 707-720(1)(d)
(renumbered from count 24); count 3--Attempted Assault in the
Second Degree, HRS §§ 705-500, 707-711 (renumbered from count 27)
10
This court stated that because Petitioner was charged with two
counts of TTI, the prosecution introduced evidence of two distinct acts
supporting those counts, no specific unanimity instruction was given, and the
jury convicted on one count and acquitted on the other, there was no way to
know which specific act served as the basis for the jury’s conviction on count
4. Mundon I, 121 Hawai#i at 355, 219 P.3d at 1142. According to Mundon I,
remanding for retrial on count 4 raised the distinct possibility that
Petitioner could be retried for an offense involving the conduct of which he
was acquitted. Id. Because retrying Petitioner on count 4 would violate
Petitioner’s double jeopardy rights, this court determined that the conviction
on that count had to be reversed. Id.
6
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(attempted bodily injury to Complainant),11 and count 4--Assault
in the Third Degree, HRS § 707-712(1)(a) (renumbered from count
25). In his second trial, Petitioner again represented himself,
with different stand-by counsel.
A.
Prior to trial, on March 18, 2010, Petitioner filed a
request for discovery of, inter alia, “[a]ny written documents
supplied to [Complainant by Respondent] via e-mail, facsimile
transmission, and U.S. mail secretly used to study, memorize,
rehearse, and prepare her material trial testimony between
February 2004-February 2007[.]” On March 30, 2010, Petitioner
made a second discovery request for the same materials. On April
13, 2010, the court filed an order denying Petitioner’s request
on the ground that correspondence between Respondent and
Complainant constituted Respondent’s “attorney work product.”
B.
Just prior to opening statement, Respondent,
referencing Odum v. State, 989 A.2d 232, 244–45 (Md. 2010),
indicated that it would introduce evidence of all of the acts for
which Petitioner had been acquitted in his first trial.
Petitioner objected to the admission of such evidence. The court
overruled the objection.
11
In Petitioner’s first trial he was charged with Attempted Assault
in the First Degree (serious bodily injury). On retrial, Petitioner was tried
instead of Attempted Assault in the Second Degree (substantial bodily injury).
7
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At trial, Respondent called, among others, the
following witnesses: Complainant, Christopher Ronon (Ronon),
Kauai Police Department (KPD) Officers Clyde Caires (Officer
Caires), James Rabasa (Officer Rabasa), Rolland Peahu (Officer
Peahu) and Jesse Castro (Officer Castro), Lieutenant Sherwin
Perez (Lieutenant Perez), and Nancy Wall (Wall).
1.
Complainant testified that she arrived on Kauai from
Canada on February 3, 2004. On her second day on the island, she
met a man named “Tito” (Felix Guzman) during a bus ride. When
she mentioned to Tito that she planned to stay on the beach, he
advised her that it was not safe to do so. Complainant and Tito
left the bus at a stop near Kapaa. Tito asked Complainant to
wait at a bench while he went to see if there was room for
Complainant at a nearby hostel.
While waiting, Complainant saw Petitioner pacing near
the water with a flashlight. Complainant asked him what he was
doing and for the time. Petitioner told her he was fishing, and
that it was 10 p.m. Tito returned and related that the hostel
was full. Petitioner mentioned that “he had connections [from]
his fire inspection job” and that he could get a hotel room for
Complainant at a “hugely discounted rate[.]”
Petitioner appeared to make some telephone calls. Complainant
saw Tito and Petitioner conversing but was unable to hear what
they were saying. Complainant advised Petitioner that she was
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tired and was “just going to snooze where [she] was sitting[.]”
Petitioner offered to allow Complainant to sleep in the cab of
his truck. Complainant awoke to find the truck moving;
Complainant had “no idea” where she was and Tito was not in the
truck. When she inquired regarding Tito’s whereabouts,
Petitioner informed her that he had given Tito forty dollars and
instructed him to go ahead and secure a hotel room.
Complainant and Petitioner eventually ended up at an
“open area.” Petitioner told Complainant that the hotel “was in
the distance” and that Petitioner was supposed to flash his
lights and Tito would come to the truck. Petitioner flashed his
lights but Tito did not come. Petitioner exited the truck and
told Complainant he was going to look for Tito. After a while,
Petitioner returned with “no news of seeing him.”
Complainant told Petitioner that she “needed to go
pee.” Petitioner “ripped off a piece of towel” for Complainant
“to wipe with after.” Complainant went to use the restroom and
returned to the truck, sat in the passenger seat, and tried to
fall asleep. Just before she fell asleep, Petitioner told her
that they needed to leave. He related that he was going to the
other “access part of the hotel” because there may have been some
confusion regarding where to meet. Petitioner explained he was
frustrated because they had been “waiting too long” and “Tito
owed him money.”
9
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Complainant told Petitioner she wanted to return to the
area where she had slept the previous night and then fell back
asleep. When she awoke, they were headed down a bumpy road. The
truck stopped and Complainant observed lights to the right side
of the vehicle and “bushy” trees to the left; she also heard the
ocean in front of her. Petitioner stated that they were at “the
other access point to the hotel,” then left with a flashlight and
told Complainant that he was going to look for Tito or a security
guard.
Petitioner returned “without any news of either of
them.” Petitioner instructed Complainant to roll up her window
and lock the doors because there were “wild cats” in the area.
He then went to look for Tito or a security guard one more time.
This time when Petitioner returned, he informed Complainant that
he had instructed a security guard who had seen Tito on the hotel
property to direct Tito to the truck.
Complainant started to “drift off again.” She awoke
shortly after and Petitioner’s hand “had already gone up the
bottom of [her] dress” and he was “touching [her] outer labia.”12
Complainant believed she had given Petitioner the “wrong
impression” so she “apologized and wiggled away and said like I’m
sorry, I don’t actually like you, I’m really sorry.” Petitioner
was “super apologetic and [he] backed off right away and said
12
Webster’s dictionary defines “outer labia” or “labia majora” as
“the outer fatty folds of the vulva bounding the vestibule.”
Merriam Webster’s Collegiate Dictionary 649 (10th ed. 1993).
10
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just like I’m sorry and [] it won’t happen again.” She thought
everything “was all cleared up” so she went back to sleep, but
when she awoke, Petitioner again had his hand “up [her] dress and
under the waistband of [her] panties and [was] trying to go
further down and touching [sic] the outer labia area.”
She thought Petitioner was confused so she reiterated
what she had said earlier, only “more loudly” and “repeated it a
couple more times.” Petitioner seemed “shocked” and “backed
away” and “apologized profusely[.]” Complainant fell asleep,
assuming everything was clear to Petitioner, but when she woke
up, once again, Petitioner’s arm was up her dress and he was
“touching [her] outer labia[.]” Complainant “did not want to
spend one moment around any longer” so she grabbed her bag and
turned to leave by the passenger door. Petitioner grabbed her
from behind and squeezed her tight. She asked him what he was
doing and instructed him to let go of her. Petitioner threatened
that “he had a knife” and would “cut [her] if [she] wasn’t still
and to shut up.” Complainant felt “something cold and [] sharp-
edged” pressed against her neck but did not actually see a knife.
Complainant asked Petitioner what he wanted her to do
and he told her to take off her clothes. When she said “no,” he
told her he would “cut” her so she took off most of her clothes
but did not take off her dress. When she refused to take off her
dress, Petitioner warned her that she did not want to see him
11
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“fully angry” because Petitioner did not know what he would do.
As a result, Complainant complied.
Petitioner then began to touch and kiss Complainant’s
breasts. She stated that his hands were “kind of like all over”
and one of his hands again went under the waistband of her
underwear and over her outer labia area. She was “wiggling the
entire time and trying to get away[.]” She told him that she
“was menstruating” but he responded he did not care and continued
to “grope” her. Petitioner directed Complainant to “touch his
penis” and when she refused, he became “angry” and threatened to
tie her up. He reached into his glove compartment and pulled out
some rope and tape.
In an attempt to get Petitioner “to be repulsed[,]”
Complainant stated she needed to “pee and poo.” Petitioner told
her to “go in the truck[,]” but she begged to exit the truck, and
he agreed. She got out and “went both pee and poo.” Petitioner
handed her a towel after. She then hurried back to the vehicle,
grabbed her backpack and “ran as fast as she could with [her] bag
on [her] back[.]” Complainant did not get very far before
Petitioner caught up with her and grabbed her by the underwear.
Petitioner tackled her from behind and “shoved [her] . . . to the
ground.” Her chin, knees, and elbows hit the ground.
When Complainant began screaming, Petitioner shoved
sand and his fingers down her throat. She tried to get the knife
away from Petitioner but her attempts were “futile” because he
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was “really strong.” She wanted to bite his fingers but
Petitioner’s hand “was too far down [her] throat[.]” At some
point during the struggle, Petitioner punched Complainant in the
rib area. Petitioner then started “breathing really heavily”;
“like overly labored.” Complainant saw Petitioner suddenly “go
pale,” and look “really weird and sick[.]” She told him she
would not run away and that she would take off her sandals as
proof. Petitioner apparently believed her and backed up a bit.
Complainant removed her sandals and started running.
Complainant ran toward the hotel but came to a canal.
She crossed through the canal, and ran to the oceanfront units.
She went up to one of the units and began banging on the patio
window and yelling. A man came to the screen door and she said,
“He’s after me and he’s going to hurt me, let me in, I need to
get in.” She was given a sheet to wrap around her and some
clothing.
The police were called and she informed them that
“someone had tried to rape [her]” and provided Petitioner’s first
name, and a description of Petitioner and his vehicle.
Complainant told Officer Caires that she had left her clothing in
Petitioner’s truck and that there were fire extinguishers and
milk cartons in the back of the truck.
2.
Ronon testified that on February 5, 2004, he was
vacationing on Kauai with his wife and two other couples. They
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were staying in a condominium unit at Kauai Beach Villas. At
approximately 3:30 a.m., he and his wife heard pounding on the
sliding door and someone yelling, “[H]elp me, help me; let me in;
he’s after me; he’s got a knife.” Ronon opened the sliding door
and a young woman in underwear, whom Ronon identified as
Complainant, ran past him and crouched down on the side of the
bed and said, “[H]e’s after me; he tried to rape me; he attacked
me.” The woman also stated, several times, that “he has a
knife.” According to Ronon, the woman was shaking
“uncontrollably,” and looked “to be in a state of panic.” Ronan
called the police and they arrived ten minutes later.
3.
Officer Caires testified that at approximately 3:20
a.m. on February 5, 2004, he was dispatched to one of the rooms
at the Kauai Beach Villas. He observed a woman wrapped in a
white sheet shaking uncontrollably. She told him she was twenty-
one years old. Having determined that a “major crime” had
occurred, he called detectives to take over the investigation.
4.
At approximately 4:00 a.m. on February 5, 2004, Officer
Peahu and Officer Castro were dispatched to Petitioner’s
residence. They discovered Petitioner’s Ford pickup truck parked
on the front lawn. In the truck bed were fire extinguishers and
milk cartons. Petitioner was sleeping in the truck and when the
officers approached, he woke up and got out of his vehicle.
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Officer Peahu noticed Petitioner had “sweat on his face,” his
shirt was damp, and his shirt and shorts were dirty. Officer
Castro observed “cuts and scrapes” on both of Petitioner’s knees,
and sand on his feet and “around the open wound” on Petitioner’s
knee. Petitioner was placed under arrest. Officer Castro saw a
dress and folding knife on the driver’s seat, and white rope and
a roll of tape on the floorboard.
Complainant’s backpack and sandals were found in a
sandy area near Marine Camp Road, the area where Complainant
alleged she was assaulted. Lieutenant Perez testified that a
white towel with fecal matter was found near a bush in the area.
5.
The court qualified Wall, a retired registered nurse,
as an expert in the field of nursing, and as a Sexual Assault
Nurse Examiner (SANE). Wall examined Complainant on February 5,
2004, and observed multiple bruises, lacerations, and abrasions
on Complainant’s body. Sand fell from Complainant’s head and
pubic hair when she combed through it. Wall indicated that
Complainant appeared to be menstruating at the time of the
examination.
Complainant had bruising and marks on her neck,
consistent with Complainant’s statement that she felt pressure on
her neck from a cold, hard, possibly sharp object. Complainant
also had a “recent abrasion” on her knee with particles of sand
on the abrasion. Wall answered affirmatively when asked whether
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such an injury was consistent with Complainant’s story that she
fell in the sand while attempting to escape. According to Wall,
the minor lacerations on Complainant’s elbows were also
consistent with Complainant being tackled from behind.
6.
Petitioner did not testify at trial.
C.
Petitioner was found guilty of Attempted Sexual Assault
in the First Degree (count 1, renumbered from Count 28);
Kidnapping-No voluntary release13 (count 2, renumbered from count
24), the lesser included offense of Assault in the Third Degree
(count 3, renumbered from count 27, Attempted Assault in the
Second Degree), and Assault in the Third Degree (count 4,
renumbered from count 25). He was sentenced to twenty years of
imprisonment in counts 1 and 2 and one year of imprisonment in
counts 3 and 4. The twenty-year terms in counts 1 and 2 were
ordered to run consecutively, the one-year terms in counts 3 and
4 were ordered to run concurrently with each other and
concurrently with the terms in counts 1 and 2. [RA at 1239] The
court ordered a mandatory minimum period of imprisonment of six
years and eight months in count 1 and 2, without the possibility
of parole. [Id.]
13
Kidnapping is “a class A felony” except “[i]n a prosecution for
kidnapping, it is a defense which reduces the offense to a class B felony that
the defendant voluntarily released the victim, alive and not suffering from
serious or substantial bodily injury, in a safe place prior to trial.” HRS §
707-720(2) and (3) (emphasis added).
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II.
Petitioner appealed once again. On appeal to the ICA,
Petitioner argued that the court erred by:
(1) improperly limiting discovery; (2) improperly permitting
evidence of acts for which [Petitioner] was acquitted in the
first trial, without also admitting evidence that
[Petitioner] was acquitted of those alleged acts; (3)
improperly limiting cross examination of the [Complainant];
(4) improperly allowing [Respondent] to make references to
[the] Complainant as “victim” over the objection of the
defense; and (5) imposing consecutive twenty year sentences,
an award of restitution, and a mandatory minimum term of
imprisonment.
Mundon II, 2012 WL 1473433, at *1.
As to the first point, the ICA rejected Petitioner’s
argument that the court erred in denying Petitioner’s discovery
request because, (1) although Hawai#i Rules of Penal Procedure
(HRPP) Rule 16(b)(1)(i)14 requires the prosecution to disclose to
14
HRPP Rule 16(b) provides as follows:
b) Disclosure by the Prosecution.
(1) Disclosure of Matters Within Prosecution's
Possession. The prosecutor shall disclose to the defendant
or the defendant’s attorney the following material and
information within the prosecutor’s possession or control:
(i) the names and last known addresses of persons whom
the prosecutor intends to call as witnesses in the
presentation of the evidence in chief, together with any
relevant written or recorded statements, provided that
statements recorded by the prosecutor shall not be subject
to disclosure;
(ii) any written or recorded statements and the
substance of any oral statements made by the defendant, or
made by a co-defendant if intended to be used in a joint
trial, together with the names and last known addresses of
persons who witnessed the making of such statements;
(iii) any reports or statements of experts, which were
made in connection with the particular case or which the
prosecutor intends to introduce, or which are material to
the preparation of the defense and are specifically
designated in writing by defense counsel, including results
of physical or mental examinations and of scientific tests,
(continued...)
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the defendant “‘any relevant written or recorded statements,’”
assuming some of the material requested constituted “statements,”
they would be “statements recorded by the prosecution” and hence
not subject to disclosure, id. at *2; (2) the material sought by
Petitioner would not tend to negate Petitioner’s guilt, id.; and
(3) the material requested constituted attorney-work product
under HRPP Rule 16(e)(5)(I). Id.
As to the second point, the ICA determined that because
“the acts underlying the acquitted charges were intrinsic to a
charge for which [Petitioner] was retried, [] it was not error to
admit evidence of those acts.” Id. (citing Odum, 989 A.2d at
244–45). In the ICA’s view, the court did not abuse its
discretion in concluding that the evidence of acts supporting the
acquitted charges were relevant and not unfairly prejudicial.
14
(...continued)
experiments, or comparisons;
(iv) any books, papers, documents, photographs, or
tangible objects which the prosecutor intends to introduce,
or which were obtained from or which belong to the
defendant, or which are material to the preparation of the
defense and are specifically designated in writing by
defense counsel;
(v) a copy of any Hawai#i criminal record of the
defendant and, if so ordered by the court, a copy of any
criminal record of the defendant outside the State of
Hawai#i;
(vi) whether there has been any electronic
surveillance (including wiretapping) of conversations to
which the defendant was a party or occurring on the
defendant's premises; and
(vii) any material or information which tends to |
negate the guilt of the defendant as to the offense charged
or would tend to reduce the defendant’s punishment therefor.
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Id. According to the ICA, the court “properly sought to preclude
all references to the first trial because such evidence, under
a[] Hawai#i Rules of Evidence (HRE) Rule 403 balancing, could
result in unfair prejudice, confusion of the issues or misleading
the jury.” Id. (emphasis in original). The ICA further
concluded that the court did not err in admitting evidence of
acts supporting the acquitted charges without permitting
Petitioner to introduce evidence of the acquittals. Id.
As to the third point, the ICA concluded that
Petitioner was not denied his right to meaningful cross-
examination when the court sustained Respondent’s objection to
Petitioner’s question, “What was [Petitioner] doing when he
agreed to let you go?” Id. at *4. The ICA reasoned that there
was no evidence that Petitioner voluntarily agreed to let
Complainant go. Id. Moreover, Petitioner was not precluded from
rephrasing the question and was able to and did in fact cross-
examine Complainant extensively on the issue of voluntary
release. Id.
As to the fourth point, the ICA did not decide whether
Respondent’s references to Complainant as the “victim” was error.
The ICA held instead that, assuming it was error, the error was
harmless beyond a reasonable doubt because (1) there were only a
few “victim” references by the deputy prosecutor, and (2) the
court’s instructions regarding the presumption of innocence cured
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any error. Id. at *5 (citing State v. Nomura, 79 Hawai#i 413,
416-18, 903 P.2d 718, 721-23 (App. 1995)).
As to the fifth point, the ICA held it was not error
for the court to justify the imposition of consecutive twenty-
year sentences, in part, on the ground that Petitioner was “‘in
the same category as [the defendant in another sexual assault
case] in terms of the need for consecutive sentencing.’”15 Id.
In addition, the ICA pointed out that the court evaluated the
factors set forth under HRS § 706–606 (1993).16
III.
In his Application for Writ of Certiorari, Petitioner
15
As noted, Petitioner also challenged the court’s order that
Petitioner pay restitution for Complainant’s backpack because “restitution was
not included in his original sentence.” Mundon II, 2012 WL 1473433, at *5.
None of the parties challenge the ICA’s ruling in this regard and hence this
issue is not addressed further.
16
HRS § 706-606 provides as follows:
§ 706-606 Factors to be considered in imposing a
sentence. The court, in determining the particular sentence
to be imposed, shall consider:
(1) The nature and circumstances of the offense and
the history and characteristics of the
defendant;
(2) The need for the sentence imposed:
(a) To reflect the seriousness of the offense,
to promote respect for law, and to provide
just punishment for the offense;
(b) To afford adequate deterrence to criminal
conduct;
(c) To protect the public from further crimes
of the defendant; and
(d) To provide the defendant with needed
educational or vocational training,
medical care, or other correctional
treatment in the most effective manner;
(3) The kinds of sentences available; and
(4) The need to avoid unwarranted sentence
disparities among defendants with similar
records who have been found guilty of similar
conduct.
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raises the same questions raised before the ICA:
1. Did the ICA err in affirming the [court’s] limit on
discovery?
2. Did the ICA err in affirming the admission of evidence
at retrial, of crimes for which [Petitioner] had been acquitted in
the first trial?
3. Did the ICA err in affirming limits of cross-examination
of [Respondent’s] witness?
4. Did the ICA err in affirming [Respondent’s] references
to [] [C]omplainant as “victim?”
5. Did the ICA err in affirming the [court’s] imposition of
[a] consecutive sentence upon improper grounds?[ 17]
Respondent did not file a Response to the Application.
IV.
Petitioner’s first question relates to his request for
documents supplied to Complainant between February 2004 and
February 2007, which the court denied on the ground that the
material requested constituted attorney work product.
Complainant replaced her earlier description of being “groped” in
her underwear with a reference to her “outer labia” being
touched.
Prior to Petitioner’s second trial, Complainant did not
use the term “outer labia.” The statutory definition of “sexual
penetration,” for purposes of Sexual Assault in the Third Degree
is defined in part as any intrusion of any part of a person’s
body or of any object into the genital or anal opening.” HRS §
707-700 (Supp. 2004). In 2006, HRS § 707-700 was amended to
define “genital opening” as including “the anterior surface of
the vulva or labia majora[.]” See 2006 Haw. Sess. Laws Act 230,
§ 26 at 1013-14 (emphasis added). Complainant’s use of the term
17
Petitioner raised the same arguments on appeal to the ICA. See
Mundon II, 2012 WL 1473433, at *1.
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“outer labia” would arguably serve as some basis for Petitioner’s
request.
As Respondent noted in its Answering Brief, the
prosecution is not required to disclose all information,
correspondence, evidence, and other material in its possession.
HRPP Rule 16(b)(1)(vii) requires the prosecutor to disclose “any
material or information which tends to negate the guilt of the
defendant as to the offense charged or would tend to reduce the
defendant’s punishment therefor.”
The materials requested by Petitioner constituted
“correspondence” between Respondent and Complainant, and
“records” (statement made by Complainant to the police) under the
rule. HRPP Rule 16(e)(5)(i) protects correspondence and reports
only “to the extent that they contain the opinions, theories or
conclusions” of the attorney or the attorney’s member or legal
staff. Respondent has not alleged that the materials requested
by Petitioner contained any of its “opinions, theories or
conclusions” relating to the case. Here, the court did not
ascertain whether the material requested actually constituted
protected work product of Respondent.
Petitioner suggested before the ICA that it may be
error for the court to make a determination regarding discovery
of material claimed to be privileged without at least conducting
an in camera review of the documents at issue. See O'Connell,
332 S.W.3d at 44 (concluding that it was improper for the court
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to order discovery of work product without a prior in camera
inspection). However, any error was harmless in this case.
As disclosed in oral argument before this court,
Petitioner’s concern was only with the use of the term “outer
labia.” However, Petitioner did have the opportunity to cross-
examine Complainant regarding her use of that term. Petitioner’s
cross-examination of Complainant regarding this issue, under the
circumstances here, rendered any error harmless. Accordingly,
the ICA did not gravely err in affirming the denial of
Petitioner’s discovery request.
V.
In connection with Petitioner’s second question,
Petitioner maintains that the court’s error violated his rights
against double jeopardy under the Fifth Amendment to the United
States Constitution and article 1, section 10 of the Hawai#i
Constitution,18 and his rights to due process and equal
protection under the Fifth and Fourteenth Amendments to the
United States Constitution, and article 1, sections 519 and 14 of
18
Article 1, section 10 of the Hawai#i Constitution states, in
relevant part, that “nor shall any person be subject for the same offense to
be twice put in jeopardy.” Haw. Const. Art. 1, § 10.
19
Article I, section 5 of the Hawai#i Constitution provides that
“[n]o person shall be deprived of life, liberty or property without due
process of law, nor be denied the equal protection of the laws, nor be denied
the enjoyment of the person’s civil rights or be discriminated against in the
exercise thereof because of race, religion, sex or ancestry.” Article I,
section 14 of the Hawai#i Constitution provides in part that “[i]n all
criminal prosecutions, the accused shall enjoy the right . . . to be informed
of the nature and cause of the accusation[.]”
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the Hawai#i Constitution. We decide this question under Article
1, Section 10.
As stated, Respondent indicated prior to trial that it
intended to introduce evidence of “[a]ll of the acts that
occurred in the incident,” including the acts of which Petitioner
was acquitted. Respondent had apparently presented the court
with a memorandum of law, referencing Odum, which was attached
thereto. This memorandum does not appear to have been filed.
Petitioner, acting pro se, initially noted that in
Odum, there were five accomplices whereas in the instant case,
Petitioner was the only person involved. Because it had been
proven that he “didn’t do” those acts, Petitioner argued it would
not “be fair” to introduce those acts in his second trial. For
example, he noted he was acquitted of “touching [Complainant’s]
genital area” and that “it would be unfair for [Respondent] to
use that –- again, to convict [him] for the attempted crimes or
continuing conduct of the attempted sexual assault and kidnapping
charge.”
Next, Petitioner maintained that use of the acts of
which he was acquitted would violate his “constitutional rights
[against] double jeopardy.” Petitioner specifically stated that
in order to convict him of attempted sexual assault in the first
degree, Respondent would need to prove that “touching the
genital[s]” was “a substantial step.” He urged, however, that it
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would be a violation of double jeopardy for Respondent to
introduce evidence in his second trial that he touched
Complainant’s genitals because he was acquitted of such acts in
his first trial.
Finally, Petitioner argued that introducing these acts
would “raise questions to these new jurors” regarding his first
trial. Thus, he maintained that allowing Respondent to
“reintroduce evidence that [he] was acquitted for [sic] would . .
. prejudice [him].”
In response, Respondent related that although the Odum
court ruled that Rule 404(b) of the Maryland Rules of Evidence
did not apply because these were not other or “prior bad acts,”
the evidence was relevant to establishing Petitioner’s state of
mind for the retried offenses. Respondent stated, for example,
that such acts would “show that [Petitioner] had the intent [to]
unlawfully restrain[] [Complainant] in order to subject her to a
sexual offense.” In addition, Respondent argued that although
the evidence was prejudicial, the risk of prejudice did not
outweigh its probative value.
The court ruled that Respondent would not be “precluded
from admitting evidence of all of the offenses that [Petitioner]
faced during his first trial, as they were all part of the same
criminal episode of the charges he faces on retrial.” (Emphasis
added.) The court added that “any alleged prejudice . . . [did]
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not outweigh the probative value of the evidence[.]”20
Subsequently, acquitted acts were introduced in connection with
the Attempted Sexual Assault in the First Degree and the
Kidnapping charges.
VI.
Respondent argued to the ICA that the evidence was
properly admitted because (1) the acts “were all part of the same
criminal episode” and hence admissible, (2) under HRE Rule 403,
the evidence was “highly probative” and although prejudicial, not
“unfairly” prejudicial, (quoting Odum, 989 A.2d at 245) (emphasis
in original), and (3) Petitioner was not subjected to double
jeopardy because (a) the acquittals meant only that the jury had
reasonable doubt as to whether he completed the sexual contact,21
(b) he was retried only for Attempted Sexual Assault in the First
Degree, and (c) although acquitted of touching Complainant’s
genitals, evidence of such acts could be offered to support the
“substantial step” for purposes of the Attempted Sexual Assault
in the First Degree count.
20
Although the court referenced prejudice and probative value, the
court did not specifically cite HRE Rule 403.
21
Respondent asserted that Petitioner’s acquittal in his first trial
of all Sexual Assault in the Third Degree charges meant only that the jury
could not find beyond a reasonable doubt that Petitioner completed the alleged
sexual contact but it does not mean he did not commit a substantial step
toward sexual penetration by reaching “under the waistband of [Complainant’s]
panties, to her vaginal area.”
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Respondent did not challenge Petitioner’s alternative
argument that the court should have at least instructed the jury
that Petitioner had been acquitted of “completed sexual
contact[.]” Instead, Respondent argued that the court’s error
was harmless beyond a reasonable doubt because “[t]he jury was
properly instructed as to the offense of Attempted Sexual Assault
in the First Degree, including a specific unanimity instruction,
and the jury only needed to find a ‘substantial step’ in
furtherance of sexual penetration by strong compulsion; it did
not need to find completed sexual contact.”
VII.
A.
It is established that the guarantee against “‘[d]ouble
jeopardy protects individuals against: (1) a second prosecution
for the same offense after acquittal; (2) a second prosecution
for the same offense after conviction; and (3) multiple
punishments for the same offense.’” State v. Ake, 88 Hawai#i 389,
392, 967 P.2d 221, 224 (1998) (quoting State v. Quitog, 85 Hawai#i
128, 141, 938 P.2d 559, 572 (1997)). Double jeopardy does not,
however, “prohibit a state from retrying a defendant whose
judgment of conviction is set aside because of [the trial
court’s] error.” State v. Cabral, 8 Haw. App. 506, 511, 810 P.2d
672, 676 (1991). In this case Petitioner was not retried on the
counts of which he was convicted, but only on the counts vacated
in Mundon I on account of trial error. Therefore, double
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jeopardy does not bar retrial on the counts for which Petitioner
was convicted.
B.
However, the United States Supreme Court has held that
“collateral estoppel” is a principle embodied in the right
against double jeopardy, and precludes relitigation of issues
already decided, even when double jeopardy is not necessarily
implicated. Ashe v. Swenson, 397 U.S. 436, 443 (1970). In Ashe,
the defendant was charged with armed robbery arising from an
incident during which four masked men, armed with shotguns, broke
into the basement of a home while six men were engaged in a poker
game, and robbed them. Id. at 437. The defendant was one of
four men arrested in connection with the incident. Id. He was
tried for the armed robbery of one of the poker players, and was
found not guilty. Id. at 439.
Six weeks later, the defendant was brought to trial for
the robbery of another participant in the poker game. Id.
Although the witnesses were for the most part the same, the
testimony was substantially stronger in the second trial. Id. at
439-440. For example, two witnesses who had been unable to
identify the defendant as one of the robbers, testified in the
second trial as to the defendant’s features, size, and
mannerisms. Id. at 440. Another witness who identified the
defendant only by size and actions in the first trial, identified
the defendant by the unusual sound of his voice. Id. The
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prosecution also declined to call a participant in the poker game
whose identification testimony in the defendant’s first trial had
been “conspicuously negative.” Id. The defendant was found
guilty in the second trial. Id.
Relying on the doctrine of collateral estoppel, the Court
reversed the defendant’s conviction. The Court explained that
collateral estoppel means that “when an issue of ultimate fact
has once been determined by a valid and final judgment, that
issue cannot again be litigated between the same parties in any
future lawsuit.”22 Id. at 443. The Court held that the doctrine
prevented the prosecution from relitigating in the second trial
the ultimate fact issue of whether the defendant had participated
in the robbery that had previously been determined by a valid and
final judgment in the first trial. Id. at 446.
The Court remarked that at common law and under the
early federal statutes, “a single course of criminal conduct was
likely to yield but a single offense.” Id. at 446 n.9. However,
more recently, with the “extraordinary proliferation of
22
Where, as in this case, a defendant is retried, collateral
estoppel does not squarely apply “since retrial cannot be ‘collateral’ if it
is a ‘continuation’ of the first trial.” U.S. v. Bailin, 977 F.2d 270, 276
(7th 1992). Instead, "[i]ssue preclusion ‘within the confines of a single
claim or cause of action’ is known as ‘direct estoppel.’” Id. (citing 18
Charles A. Wright et al., Federal Practice & Procedure § 4418, at 169 (1981)
(Federal Practice & Procedure)). Both collateral estoppel and direct estoppel
“bar the government from relitigating issues that were necessarily and finally
decided in the defendant’s favor by reason of the jury’s partial acquittal on
other counts.” Id. at 276-77; see also Yeager v. United States, 557 U.S. 110,
120 (2009) (holding that the Ashe doctrine includes direct estoppel).
However, because the cases generally refer to collateral estoppel, that term
is employed herein.
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overlapping and related statutory offenses, it became possible
for prosecutors to spin out a startlingly numerous series of
offenses from a single alleged criminal transaction.” Id. As
the number of offenses increased, “the potential for unfair and
abusive reprosecutions became far more pronounced.” Id. Thus,
the courts soon recognized the need to prevent abuses through the
doctrine of collateral estoppel. Id.
However, in applying the doctrine of collateral
estoppel to a general jury verdict of acquittal, courts must be
careful not to take a “hypertechnical and archaic approach,” but
should, “with realism and rationality . . . examine the record of
a prior proceeding, taking into account the pleadings, evidence,
charge, and other relevant matter, and conclude whether a
rational jury could have grounded its verdict upon an issue other
than that which the defendant seeks to foreclose from
consideration[.]” Id. at 444 (emphasis added). The inquiry
“‘must be set in a practical frame and viewed with an eye to all
the circumstances of the proceedings.’” Id. (Quoting Sealfon v.
United States, 332 U.S. 575, 579 (1948)). Otherwise, “[a]ny test
more technically restrictive would, of course, simply amount to a
rejection of the rule of collateral estoppel in criminal
proceedings, at least in every case where the first judgment was
based upon a general verdict of acquittal.” Id.
Applying collateral estoppel to the case at hand, the
Court reasoned that once a jury had “determined by its verdict
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that the [defendant] was not one of the robbers, the State could
[not] constitutionally hale him before a new jury to litigate
that issue again.” Id. at 445 (emphasis added). In other words,
because a jury had already determined “there was at least a
reasonable doubt that the [the defendant] was one of the robbers,
the State could not present the same or different identification
evidence in a second prosecution . . . in the hope that a
different jury might find that evidence more convincing.” Id. at
446 (emphasis added).
C.
1.
In Dowling v. United States, 493 U.S. 342 (1990),
however, a majority of the Court appeared to employ a more
technical and restrictive definition of collateral estoppel. In
that case, the defendant was charged with bank and armed robbery.
Id. at 344. The bank robber had been wearing a ski mask during
the robbery. Id. The defendant’s first trial ended in a hung
jury. Id. In his second trial, the defendant was convicted on
both counts but his convictions were reversed on appeal. Id. In
his third trial, the prosecution sought to call Vena Henry to
testify regarding a crime of which the defendant had been
acquitted. Id. at 344-345. Henry would testify that two men,
one wearing a mask and carrying a small handgun, entered her home
approximately two weeks after the bank robbery, and that she was
able to unmask the masked man, whom she would identify as the
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defendant. Id. The prosecution argued that the testimony was
admissible because Federal Rules of Evidence (FRE) Rule 404(b)
allowed the admission of crimes, wrongs, or acts for purposes
other than character evidence, i.e., to establish that the mask
described by Henry was similar to the mask worn in the bank
robbery, and to establish that the defendant could be linked to
the other man alleged to have entered Henry’s home. Id. at 345.
Under FRE Rule 404(b) the Government only had to
establish that the other acts had occurred by a preponderance of
the evidence. Id. at 356. The district court admitted the
evidence, reasoning that it was highly probative circumstantial
evidence. Id. at 345. Henry was permitted to testify but
following her testimony, the district court instructed the jury
that the defendant had been acquitted of robbing Henry, and
emphasized the limited purpose for which Henry’s testimony was
being offered. Id. at 345-46. The court reiterated that
admonition in its final charge to the jury. Id. at 346.
The majority assumed that “Dowling’s acquittal
established that there was a reasonable doubt as to whether
Dowling was the masked man who entered Vena Henry's home[.]” Id.
But, according to the majority, “to introduce evidence on this
point at the bank robbery trial, the Government did not have to
demonstrate that Dowling was the man who entered the home beyond
a reasonable doubt: the Government sought to introduce Henry’s
testimony under Rule 404(b),” and “‘[i]n the Rule 404(b) context,
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similar act evidence is relevant only if the jury can reasonably
conclude that the act occurred and that the defendant was the
actor.’” Id. (quoting Huddleston v. United States, 485 U.S. 681
(1988)). Thus, “[b]ecause a jury might reasonably conclude that
Dowling was the masked man who entered Henry’s home, even if it
did not believe beyond a reasonable doubt that Dowling committed
the crimes charged at the first trial, the collateral estoppel
component of the Double Jeopardy Clause [was] inapposite.” Id.
at 348-49. Consequently, the majority held that “an acquittal in
a criminal case does not preclude the Government from
relitigating an issue when it is presented in a subsequent action
governed by a lower standard of proof.”23 Id. at 349.
The majority based its holding on prior cases that it
said supported this proposition. (Citing United States v. One
Assortment of 89 Firearms, 465 U.S. 354 (1984), and One Lot
Emerald Cut Stones v. United States, 409 U.S. 232 (1972)). In
both of those cases the Court had allowed the evidence to be
admitted in the in rem proceedings “partly because of the clearly
lower standard of proof in the subsequent civil proceeding and
partly because the later proceeding was remedial rather than
punitive in nature.” United States v. Crispino, 586 Supp. 1525,
23
The Court was referring to the fact that under FRE 404(b) evidence
of the prior acquitted crime (Henry’s testimony) would be admissible “if the
jury can reasonably conclude that the act occurred and that the defendant was
the actor,” and “the Government did not have to demonstrate that Dowling was
the man who entered the home beyond a reasonable doubt.” Dowling, 493 U.S. at
348.
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1533 (1984). Following the civil cases, the jury verdict in the
first action did not “negate the possibility that a preponderance
of the evidence could show that [the defendant] was engaged in”
an act of which the defendant was later acquitted. Id.
Alternatively, the majority held that even if the lower
standard of proof under FRE Rule 404(b) applied in a second
proceeding did not avoid the collateral estoppel issue, the
evidence would still be admissible. Id. at 350. Dowling noted
that Ashe stated “that where a previous judgment of acquittal was
based on a general verdict, courts must . . . ‘conclude whether a
rational jury could have grounded its verdict on an issue other
than that which the defendant seeks to foreclose from
consideration.’” Id. (quoting Ashe, 397 U.S. at 444). In that
regard, the defendant “did not demonstrate that his acquittal in
his first trial represented a jury determination that he was not
one of the men who entered Henry’s home.” Id.
2.
Justice Brennan, joined by Justice Marshall and Justice
Stevens, dissented. Justice Brennan wrote that “[t]o permit a
second trial after an acquittal, however mistaken the acquittal
may have been, would present an unacceptably high risk that the
Government, with its vastly superior resources, might wear down
the defendant, so that even though innocent he may be found
guilty.” Id. at 355 (internal quotation marks and citation
omitted).
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In addition to protecting against retrial for the same
offense, the doctrine of collateral estoppel protects the
defendant from having to relitigate any ultimate facts resolved
in the defendant’s favor by the prior acquittal. Id. at 356.
Thus, the collateral estoppel doctrine “would preclude the
Government from introducing evidence which relies on facts
previously determined in the defendant’s favor by an acquittal.”
Id.
In Justice Brennan’s view, the majority’s analysis was
“inconsistent with [the Court’s] admonition in Ashe that an
excessively technical approach to collateral estoppel ‘would, of
course, simply amount to a rejection of the rule of collateral
estoppel in criminal cases, at least in every case where the
first judgment was based upon a general verdict of acquittal.’”
Id. at 358 (emphasis in original) (quoting Ashe, 397 U.S. at
444). Justice Brennan elaborated that “[w]henever a defendant is
forced to relitigate the facts underlying a prior offense for
which he has been acquitted, there is a risk that the jury
erroneously will decide that he is guilty of that offense[.]”
Id. at 361. The danger is that “the jury may feel that the
defendant should be punished for [extrinsic] activity even if he
is not guilty of the offense charged.” Id. at 362. There is
also a risk that “the evidence may lead the jury to conclude
that, having committed a crime of the type charged, the defendant
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is likely to repeat it.” Id. (internal quotation marks and
citation omitted).
Justice Brennan also attacked the majority’s use of
civil cases to justify its holding “those forfeiture cases
involved civil remedial measures rather than criminal
punishment.” Id. at 359 (citations omitted). Never before had
“such reasoning [been applied] to a successive criminal
prosecution in which the Government [sought] to punish the
defendant and hinge[d] that punishment at least in part on a
criminal act for which the defendant ha[d] been acquitted.” Id.
at 360. Indeed, in Ashe the Court had indicated to the contrary:
“It is much too late to suggest that [collateral estoppel] is not
fully applicable to a former judgment in a criminal case,”
because “the judgment may reflect only a belief that the
Government had not met the higher burden of proof [(beyond a
reasonable doubt)] exacted in such cases for the Government’s
evidence as a whole. . . .” 397 U.S. at 443 (citation omitted).
According to Justice Brennan, “[b]y definition, when the
Government fails to prove a defendant guilty beyond a reasonable
doubt, the defendant is considered legally innocent.” Id.
(emphasis added). Justice Brennan believed that at least with
respect to subsequent criminal prosecutions, “the acquitted
defendant is to be treated as innocent and in the interests of
fairness and finality made no more to answer for his alleged
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crime.” Id. (citing State v. Wakefield, 278 N.W.2d 307, 308
(Minn. 1979)).
VIII.
A.
Ashe appears to reflect the better reasoned approach
and the rationale therein is hereby adopted under the Hawai#i
Constitution.24 Recognizing that the proliferation of statutory
offenses allows the prosecution to charge a defendant with
multiple counts based on the same incident, the Court adopted the
collateral estoppel doctrine to curb potential abuses. See Ashe,
397 U.S. at 443-444. The Court intended to prevent putting a
defendant in the position of having to relitigate his guilt as to
an issue already decided in his favor by an acquittal. See id.
at 445-446 (“For whatever else that constitutional guarantee may
embrace . . . it surely protects a man who has been acquitted
from having to ‘run the gauntlet’ a second time.”).
24
This court, “[a]s the ultimate judicial tribunal with final,
unreviewable authority to interpret and enforce the Hawai#i Constitution, [is]
free to give broader protection than that given by the federal constitution.”
State v. Detroy, 102 Hawai#i 13, 22, 72 P.3d 485, 494 (2003). We therefore
independently adopt the collateral estoppel rule as set forth in Ashe as being
embodied in the double jeopardy clause of the Hawai#i Constitution.
It must be noted that “state courts are absolutely free to
interpret state constitutional provisions to accord greater protection to
individual rights than do similar provisions of the United States
Constitution.” Arizona v. Evans, 514 U.S. 1, 8 (1995). “If a state court
chooses merely to rely on federal precedents as it would on the precedents of
all other jurisdictions, then it need only make clear by a plain statement in
its judgment or opinion that the federal cases are being used only for the
purpose of guidance, and do not themselves compel the result that the court
has reached.” Michigan v. Long, 463 U.S. 1032, 1041 (1983). In consonance
with Long, federal cases are cited in this opinion only for the purpose of
guidance as to the issues raised by Petitioner in this case. The Hawai#i
Constitution, as opposed to federal law, compels the result reached herein.
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Yet, under Dowling, the prosecution is permitted to
introduce evidence that the defendant committed an act for which
the defendant was already acquitted, so long as the burden to
establish the occurrence of the act is less than beyond a
reasonable doubt such as admission of evidence under FRE 404(b).
This undermines the legal presumption that a defendant is
innocent until proven guilty. See Dowling, 493 U.S. at 361, n.4
(Brennan J., dissenting) (holding that “when the Government fails
to prove a defendant guilty beyond a reasonable doubt, the
defendant is considered legally innocent,” and “with respect to
subsequent criminal prosecutions, ‘the acquitted defendant is to
be treated as innocent and in the interests of fairness and
finality made no more to answer for his alleged crime.’”)
(quoting Wakefield, 278 N.W.2d at 308. The prosecution in effect
is allowed to argue that despite its failure to prove that the
defendant was guilty of an act in the first trial, the defendant
is not innocent and has, despite the prior acquittal, committed
the act. See id. at 363.
Additionally, admitting evidence of an acquitted crime
compels a defendant (if he or she hopes to prevent the jury from
deciding the issue against him) to again defend the same conduct
for which he or she had already been acquitted. In this regard,
the majority’s position in Dowling is contrary to Ashe. Compare
Dowling, 493 U.S. at 352 (“We recognize that the introduction of
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evidence in circumstances like those involved here has the
potential to prejudice the jury or unfairly force the defendant
to spend time and money relitigating matters considered at the
first trial.”) with Ashe, 397 U.S. at 445 (“Once a jury had
determined upon conflicting testimony that there was at least a
reasonable doubt that the petitioner was one of the robbers, the
State could not present the same or different identification
evidence in a second prosecution for the robbery of [the
complainant] in the hope that a different jury might find that
evidence more convincing.”). Moreover, the passage of time and
the additional expense of having to defend against acts that were
not charged may make it more difficult for the defendant to mount
a second defense. Dowling, 493 U.S. at 363 (Brennan J.,
dissenting).
Further, there is a risk that the jury will convict the
defendant because it believes that the fact that the defendant
committed the prior act (despite the acquittal) makes it more
likely that the defendant committed the charged offense. There
is also a risk that the jury will feel that the defendant was
guilty of the prior acquitted charge even if it believes the
defendant is not guilty of the charged offense, and will convict
the defendant in order to punish him for the prior offense.
These dangers, which strike at the heart of the protections
embodied in the Double Jeopardy Clause are not addressed by the
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majority in Dowling. Ashe and the dissenters’ view25 in Dowling
are thus more faithful than the majority’s position in Dowling to
the principles of the presumption of innocence, the burden of
proof beyond a reasonable doubt, and the efficacy of an
acquittal.
Also, the majority in Dowling does precisely what Ashe
admonishes should not be done, inasmuch as the majority employs a
hypertechnical approach to the doctrine of collateral estoppel.
In Ashe, the Court had explained that “[i]f a later court is
permitted to state that the jury may have disbelieved substantial
and uncontradicted evidence of the prosecution on a point the
defendant did not contest, the possible multiplicity of
prosecutions is staggering.”26 397 U.S. at 444 n.9. Moreoever,
25
In the past, this court has not hesitated to adopt the dissents in
U.S. Supreme Court cases when it was believed the dissent was better reasoned
than the majority opinion. See, e.g., State v. Cuntapay, 104 Hawai#i 109, 85
P.3d 634 (2004) (agreeing with the dissent in Minnesota v. Carter, 525 U.S. 83
(1998)); see also State v. Kam, 69 Haw. 483, 748 P.2d 372 (1988)(adopting the
reasoning of the dissent in Pope v. Illinois, 481 U.S. 497 (1987)); State v.
Santiago, 53 Haw. 254, 492 P.2d 657 (1971) (adopting the dissent in Harris v.
New York, 401 U.S. 222 (1971)).
26
The principles of Ashe may have been codified by our legislature
in HRS § 701-111(2) (Supp. 2004), which provides as follows:
§ 701-111 When Prosecution is barred by former prosecution
for a different offense
Although a prosecution is for a violation of a different
statutory provision or is based on different facts, it is barred
by a former prosecution under any of the following circumstances:
(2) The former prosecution was terminated by an
acquittal or by a final order or judgment for
the defendant which has not been set aside,
reversed, or vacated and which acquittal, final
order, or judgment necessarily required a
determination inconsistent with a fact which
must be established for conviction of the second
(continued...)
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“such a restrictive definition of ‘determined’ amounts simply to
a rejection of collateral estoppel, since it is impossible to
imagine a statutory offense in which the government has to prove
only one element or issue to sustain a conviction.”2728 Id.
(emphasis added).
B.
Banther v. State, 884 A.2d 487 (Del. 2005), decided
post-Dowling, is also instructive. In Banther, Banther was
acquitted in his first trial of conspiring to commit murder, but
convicted of first-degree murder. Id. at 489. On appeal,
however, the Delaware Supreme Court vacated the murder conviction
and remanded for retrial. Id. On retrial, the prosecution
attempted to prove the first-degree murder charge by establishing
accomplice liability, specifically arguing that Banther agreed to
aid the principal, his accomplice, in “planning” the murder.
Id. The supreme court of Delaware reversed Banther’s conviction
for first-degree murder and remanded for a new trial, concluding
26
(...continued)
offense.
Our statute is modeled after the Model Penal Code. HRS § 701-111 was not
raised or argued by either party. Assuming its application, HRS § 701-111
reiterates, but does not replace, the constitutional rule.
27
The term “determined” refers to the court’s use of that word in
preceding text, that “Collateral Estoppel” means simply that “‘when an issue
of ultimate fact has once been determined by a valid and final judgment, that
issue cannot again be litigated between the same parties in any future
lawsuit.’” Dowling, 493 U.S. at 347 (quoting Ashe, 397 U.S. at 443) (emphasis
added).
28
As the double jeopardy clause applies only to criminal
prosecutions, the collateral estoppel rule adopted herein does not affect the
standard for collateral estoppel in civil cases.
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that in allowing the prosecution to make this argument, the trial
court “failed to account for the collateral estoppel effect of
the earlier acquittal for conspiracy.” Id.
That court noted that the Delaware Constitution
protects defendants against double jeopardy and that
“[p]rinciples of double jeopardy . . . are subsumed by the
broader doctrine of collateral estoppel, which ‘means simply that
when an issue of ultimate fact has once been determined by a
valid and final judgment, that issue cannot be litigated between
the same parties in any future law suit.’” Id. at 492 (quoting
Marine v. State, 624 A.2d 1181, 1190 (Del. 1993) (citing Ashe,
397 U.S. at 443)).29 Conspiracy required, in part, an intent to
agree to aid another in the planning of a felony. Id. at 493.
But accomplice liability may be established by acting
“unilaterally, without a preexisting agreement, by spontaneously
deciding to aid, counsel, or attempting to aid another, or by
agreeing to aid a principal in planning or committing a crime.”
Id.
In arguing that Banther acted as an accomplice by
aiding the principal in planning the murder, the State implied
Banther acted jointly as opposed to unilaterally. Id. The
Delaware Supreme Court concluded that “[t]he State’s references
29
Banther noted that the doctrine of collateral estoppel is codified
in a Delaware statute. That statute is worded identically to HRS § 701-
111(2).
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to Banther’s planning focused on concerted actions, which
although not labeled as a ‘conspiracy,’ nonetheless operated as
the functional equivalent of the agreement element that is
fundamental to a conspiracy.” Id. But, because Banther had
already been acquitted of conspiracy to commit murder, that court
concluded, “The earlier jury must have rejected the fact of an
agreement between Banther and [the principal.]” Id. at 494.
Consequently, Banther held under collateral estoppel principles,
that accomplice liability could be established only “on the basis
of Banther’s individual, independent and spontaneous actions-not
on the basis of a theory that he and [the principal] had ‘worked
together’ on the plan.” Id.
Similarly, in the instant case, Respondent prosecuted
both the Attempted Sexual Assault in the First Degree and
Kidnapping charges by seeking to establish that Petitioner had
committed acts of sexual assault for which he had already been
acquitted. Collateral estoppel bars the prosecution from seeking
to have the jury decide for the second time whether Petitioner
had in fact committed the acts of which he had already been
acquitted in his first trial.30
30
Respondent, the court and the ICA incorrectly relied on Odum.
Odum was charged with, and tried for, his involvement with four others in the
armed robbery, carjacking, kidnapping, and murder of two individuals. 989
A.2d at 234. He was acquitted on all offenses except for kidnapping. Id. At
Odum’s retrial, the State sought to present evidence relating to the acquitted
crimes. Id. Odum attempted to preclude such evidence, arguing that the
prosecution was barred by the doctrine of collateral estoppel. Id. at 235-36.
Nevertheless, the trial court admitted the evidence as relevant “to the
overall criminal venture and to the [d]efendant’s role and participation” and
(continued...)
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IX.
In this case, in order to convict Petitioner of
Attempted Sexual Assault in the First Degree (digital
penetration), Respondent was required to prove beyond a
reasonable doubt that Petitioner had taken a “substantial step”
toward digitally penetrating Complainant, and that he exerted
“strong compulsion.” Respondent sought to establish that
Petitioner had taken a substantial step toward digitally
penetrating Complainant in the second trial by proving beyond a
reasonable doubt that Petitioner had touched Complainant’s labia.
Respondent also apparently argued that the fact that Petitioner
“fondled” Complainant’s breasts demonstrated strong compulsion.31
30
(...continued)
as probative of events before the kidnapping that was not outweighed by any
unfair prejudice. Id. at 236.
The Maryland Supreme Court, relying on Dowling, Id. at 241, held
that evidence of the acquitted counts could be admitted in the second trial
for a purpose that would not require the State to prove those acts beyond a
reasonable doubt. Similarly, here, for example, Respondent argued that the
evidence was relevant to proving Petitioner’s requisite intent for the
attempted sexual assault and kidnapping offenses. But, in admitting evidence
of such acts based upon a lower standard of proof than beyond a reasonable
doubt, Odum followed Dowling. As discussed supra, the precepts in Ashe, as
opposed to Dowling, should govern.
31
Specifically as to the “substantial step” element for count 1,
Respondent identified Petitioner’s touching of Complainant’s labia as the
“substantial step” Petitioner took toward penetration. In closing argument
during the second trial, the prosecution argued:
Did [Petitioner] take a substantial step in causing
sexual penetration by strong compulsion? Strong
compulsion [sic] is any intrusion of any part of a
person’s body into the genital opening. We heard how
close the labia was. And that after he had held the
knife to her, he fondled her breast. But the sexual
assault here is when he put his hand under her
underwear and he was on top of her labia and he was
going to digitally penetrate her.
(continued...)
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It must first be determined whether Petitioner’s
acquittal in his first trial on counts 1, 2, 3, and 22, Sexual
Assault in the Third Degree (hand on genitals), on counts 5, 6,
7, 8 (hand on breast), and on counts 9, 10, 11, 12, 13, 14, 15,
16, 17, 18, 19, 20, 21 (mouth on breast) amount to a decision by
the jury that Petitioner did not in fact touch Complainant’s
labia and breasts or put his mouth on her breasts. See Ashe, 397
U.S. at 443 (“‘Collateral estoppel’ . . . means simply that when
an issue of ultimate fact has once been determined by a valid and
final judgment, that issue cannot again be litigated between the
same parties in any future lawsuit.”). As noted, this inquiry
“must be set in a practical frame and viewed with an eye to all
the circumstances of the proceedings.” Id. It must be borne in
mind that “the ground[s] of acquittal cannot generally be
ascertained.” United States v. Mespoulede, 597 F.2d 329, 333
(1979). Thus, in ascertaining whether an acquittal reflects a
jury’s determination as to a particular issue, a court “must not
make the defendant’s task even more formidable by straining to
postulate ‘hypertechnical and unrealistic’ grounds on which the
jury could conceivably have rested its conclusions[.]” Id.
(quoting United States v. Jacobson, 547 F.2d 21, 23 (2d Cir.
1976)).
31
(...continued)
(Emphasis added).
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A.
1.
The indictment against Petitioner in his first trial on
counts 1, 2, 3, and 22, Sexual Assault in the Third Degree,
stated, identically, as follows:
On or about the 5th day of February, 2004, in the
County of Kauai, State of Hawai#i, [Petitioner] did
knowingly, by strong compulsion, have sexual contact with
[Complainant], by putting his hand on her genitals, thereby
committing the offense of Sexual Assault in the Third Degree
in violation of Section 707-732(1)(f) of the [HRS].
(Emphasis added.) The indictment on counts 5, 6, 7, 8, 9 and
likewise stated identically:
On or about the 5th day of February, 2004, in the
County of Kauai, State of Hawai#i, [Petitioner] did
knowingly, by strong compulsion, have sexual contact with
[Complainant], by putting his hand on her breast, thereby
committing the offense of Sexual Assault in the Third Degree
in violation of Section 707-732(1)(f) of the [HRS].
(Emphasis added.) The same pertained to counts 10, 11, 12, 13,
14, 15, 16, 17, 18, 19, 20, and 21:
On or about the 5th day of February, 2004, in the
County of Kauai, State of Hawai#i, [Petitioner] did
knowingly, by strong compulsion, have sexual contact with
[Complainant], by putting his mouth on her breast, thereby
committing the offense of Sexual Assault in the Third Degree
in violation of Section 707-732(1)(f) of the [HRS].
In order to find Petitioner guilty of these offenses,
then, Respondent was required to prove that Petitioner subjected
Complainant to sexual contact (1) by placing his hand on her
genitals and breasts, and by placing his mouth on her breasts,
(2) by strong compulsion, and (3) by doing so knowingly as to the
foregoing elements. See State v. Veikoso, 126 Hawai#i 267, 280,
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270 P.3d 997, 1010 (2011). As recounted, Petitioner was found
not guilty of the foregoing offenses.
In light of the number of times Complainant maintained
Petitioner had touched her genitals and touched and put his mouth
on her breasts, the acquittals could not have been predicated on
the jury’s finding that Petitioner had done these acts, but done
so unknowingly. See Mespoulede, 597 F.2d at 333 (concluding that
the jury’s acquittal for possession of cocaine with intent to
distribute could not have been predicated on a finding by the
jury that the defendant possessed the cocaine but did not intend
to distribute it in light of the quantity the defendant was
charged with possessing). The jury in the first trial also
convicted Petitioner of “intentionally engag[ing] in conduct
which, under the circumstances as he believed them to be,
constituted a substantial step in a course of conduct intended to
culminate in his commission of the crime of Sexual Assault in the
First Degree[,]” pursuant to count 28 of the indictment.
(Emphases added.) Petitioner “commits the offense of Sexual
Assault in the First Degree . . . if he knowingly subjects
another person to an act of sexual penetration by strong
compulsion.” HRS § 707-730 (emphasis added). It would appear,
then, that the jury believed Petitioner acted with knowledge and
intent.
Nor does it appear that the jury determined that
Petitioner did in fact touch Complainant’s genitals and breasts
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and put his mouth on her breasts, but did not do so “by strong
compulsion.” To reiterate, “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.
HRS § 707-700. The jury convicted Petitioner of Kidnapping in
his first trial, which required Respondent to prove that
Petitioner “restrained” Complainant, HRS § 707-720(1)(d), which
is defined as “restrict[ing] a person’s movement in such a manner
as to interfere substantially with the person’s liberty . . .
[b]y means of force, threat, or deception[,]” HRS 707-700 (1993).
Hence, it may be presumed that the jury did conclude Petitioner
exercised strong compulsion over Petitioner at some point.
Additionally, as discussed, the jury in the first trial
also convicted Petitioner of count 28, Attempted Sexual Assault
in the First Degree, in violation of HRS §§ 705-500 and 707-
730(1)(a). As related, Petitioner “commits the offense of Sexual
Assault in the First Degree . . . if he knowingly subjects
another person to an act of sexual penetration by strong
compulsion.” HRS § 707-730 (emphasis added). Since the jury
found that Petitioner acted with strong compulsion in attempting
to sexually penetrate Complainant, it would seem highly unlikely
that a rational jury could also find that Petitioner did not use
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strong compulsion in touching Complainant’s genitals and breasts
or in kissing Complainant’s breasts.32
The jury verdict is logical and can be reconciled if
the jury concluded that Petitioner attempted to sexually assault
Complainant (acting with the requisite knowledge and employing
strong compulsion as required to convict of that offense) but
never completed the acts of touching her genitals and breasts or
putting his mouth on her breasts, which were the acquitted acts
upon which the offenses were predicated. Thus, based on the
indictment and evidence presented in this case, it may be
presumed that the jury decided in Petitioner’s first trial that
Petitioner did not actually touch Complainant’s genitals, as
charged in counts 1, 2, 3, and 22, touch her breasts, as charged
in counts 5, 6, 7, 8, and 9, or put his mouth on her breasts, as
charged in counts 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, and
21.
2.
During the second trial, Respondent nevertheless
introduced evidence that Petitioner touched Complainant’s
genitals33 and breasts, and that he put his mouth on her breasts.
32
Assuming arguendo, any ambiguity about the presence of strong
compulsion in connection with Petitioner’s alleged acts of the touching of
Complainant’s genitals, this would seemingly apply “realism and rationality,”
Ashe, 397 U.S. at 444, in squaring the acquittal verdicts with the convictions
for Attempted Sexual Assault in the First Degree and Kidnapping.
33
In its case-in-chief, Respondent adduced testimony from
Complainant regarding four specific instances in which Petitioner touched what
Complainant specifically referred to as her “outer labia.” Complainant stated
(continued...)
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Respondent argued to the jury that the act of touching
Complainant’s genitals was a substantial step necessary to
complete the offense of Attempted Sexual Assault in the First
Degree. Respondent also apparently contended that all three acts
were relevant to establish Petitioner’s state of mind with
respect to that offense.
However, the jury decided these issues in the
Petitioner’s “favor by reason of the jury’s partial acquittal on
other counts [in the first trial].” See United States v. Bailin,
977 F.2d 270, 276 (7th Cir. 1992) (holding that collateral
estoppel applies when a defendant faces a new trial on counts
subject to a mistrial and the defendant was acquitted of other
counts in the original trial); see also Yeager v. United States,
557 U.S. 110, 120 (2009) (holding that “the reasoning in Ashe is
controlling” when a “case involves an acquittal on some counts
33
(...continued)
that she had fallen asleep and when she awoke Petitioner’s hand “had already
gone up the bottom of [her] dress” and he was “touching [her] outer labia.”
She indicated that she fell back asleep and awoke once again with Petitioner’s
hand “up [her] dress and under the waistband of [her] panties and trying to go
further down and touching the outer labia area.” She testified that she went
back asleep, believing everything was clear to Petitioner, but Petitioner
again touched her “outer labia[.]” Complainant said he told her to get
undressed and again placed his hand “under the waistband of her underwear and
over her outer labia area.”
Respondent asked Complainant, “When you mention the outer labia,
that is the part that’s on the outside or your vaginal area?” Complainant
answered affirmatively. Respondent then asked, “[so you] mention he started
touching and kissing your breasts and then he groped and his hand was under
your waistband, over the outer labia, close to your vaginal area?”
Complainant again answered in the affirmative. When Respondent asked
Complainant to explained what she meant by grope, Complainant explained,
“Going under the waistband of my panties. . . . And touching the outer
labia.”
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and a mistrial on others”). Applying collateral estoppel,
Petitioner’s alleged touching of Complainant’s genitals and
breasts and the placing of his mouth on her breasts could
therefore not be relitigated before the second jury. See Ashe,
397 U.S. at 447. It is apparent that under Ashe, Respondent’s
attempt to use the acts of which Petitioner was acquitted to
establish beyond a reasonable doubt that Petitioner committed a
substantial step toward the commission of Sexual Assault in the
First Degree was prohibited by the first jury’s prior
determination in favor of Petitioner to the effect that these
acts did not occur. The court therefore erred in allowing
Respondent to use evidence of these acts to establish a
substantial step toward the commission of the subject offenses.
Respondent also argues that the acts were relevant to
show Petitioner’s intent. Again, applying the rational jury
standard established in Ashe, the jury in the first trial had
already decided that Petitioner did not commit the acts of
touching Complainant’s genitals and breasts or of placing his
mouth on her breasts. Ashe does not differentiate between the
use of acts to establish an element of the offense beyond a
reasonable doubt and their introduction under a lower standard of
proof pursuant to the rules of evidence. Id. at 443. As Ashe
maintained, “‘[i]t is much too late to suggest that this
principle [of collateral estoppel] is not fully applicable to a
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former judgment in a criminal case, . . . because the judgment
may reflect only a belief that the Government had not met the
higher burden of proof [beyond a reasonable doubt] exacted in
such cases[.]’” Id. (quoting United States v. Kramer, 289 F.2d
909, 913 (1961)). Therefore, the acts of which Petitioner was
acquitted should have been excluded from trial. The conviction
for Attempted Sexual Assault in the First Degree must be vacated
and the case remanded with instructions that evidence of the
acquitted acts must be excluded in any retrial.34
B.
To prove that Petitioner committed Kidnapping, HRS §
707-720(1)(d), Respondent had to establish that Petitioner
“intentionally or knowingly restrain[ed Complainant], with the
intent to inflict bodily injury upon her or subject her to a
sexual offense[.]” (Emphasis added.) It appears that in this
case, Respondent attempted to show that Petitioner intended both
to inflict bodily injury and to subject Complainant to a sexual
34
In State v. Lemalu, 72 Haw. 130, 809 P.2d 442 (1991), under the
driving under the influence of intoxicating liquor statute in existence at the
time, HRS § 291-4(a) (1985), the State could prove a violation through two
alternative sections of the statute, HRS § 291-4(a)(1) and HRS § 291-4(a)(2).
Lemalu noted that prior cases had held that an acquittal on either section
(a)(1) or section (a)(2) was an acquittal “in form only,” and did not
constitute an acquittal on the HRS § 291-4(a) charge as a whole. Id. at 139,
809 P.2d at 447. When an acquittal was “in form only,” Lemalu held that
double jeopardy concerns were not implicated, and, therefore, the State could
retry a defendant based on the section of the statute subject to the judgment
of acquittal. Id. Lemalu is inconsistent with our holding that once an
acquittal is based on a finding that the defendant did not commit certain
acts, collateral estoppel prevents the prosecution from introducing evidence
of those acts in a subsequent trial.
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offense. Respondent argued this to the jury in closing argument.
Kidnapping. This is important. Did he intentionally
restrain [Petitioner] to inflict bodily injury or subject
her to a sexual offense. Restrain means to do so or
interfere with her liberty by means of force, threat or
deception. Again, clearly, he deceived her into locking the
doors [of the vehicle], [he] roll[ed] up the windows,
grabbed her torso, held a knife to her throat, ordered her
to take off her clothes, touched -- or attempted to touch
her labia, licked her breast, asked her to touch his penis.
She ran from his prison. He chased her, ripped her panties,
tackled her to the ground. He had the knife. He’s hitting
her body. He’s pushing her. She’s trying to get up. He’s
shoving sand in her mouth to prevent her from yelling for
help until she’s finally able to run away from his grasp[.]
(Emphasis added).
As is evident, Respondent relied on acts of which
Petitioner was acquitted (placing his hand on Complainant’s
breasts or genitals, or his mouth on her genitals, or asking her
to touch his penis35) in order to make the case that Petitioner
had the intent to subject Complainant to a sexual assault. But
as explained, supra, Respondent was barred from relying on those
acts under the Ashe rationale because the issue of whether
35
The same reasons, discussed supra, that demonstrate that a
rational jury must have found that Petitioner did not touch Complainant’s
breasts or genitals also demonstrate that the only basis on which a rational
jury could have acquitted Petitioner on the charge of Attempted Sexual Assault
in the Third Degree (Complainant’s hand on Petitioner’s penis) was that there
was a failure to prove that Petitioner ordered Complainant to touch his penis.
The only evidence presented to support this charge was Complainant’s testimony
that Petitioner told her to touch his penis. As discussed supra, the jury’s
other findings in the first trial preclude a determination that Complainant
was not subject to “strong compulsion.” Moreover, under the circumstances of
this case, the demand itself would constitute a substantial step in the
offense of Attempted Sexual Assault in the Third Degree. Because the
“substantial step” required to prove Attempted Sexual Assault in the Third
Degree would have been Petitioner’s demand, and the demand itself is evidence
of Petitioner’s intent, a rational jury could not have acquitted Petitioner
unless it found that the prosecution failed to prove beyond a reasonable doubt
that the demand was made.
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Petitioner had committed those acts had been finally resolved in
Petitioner’s favor by the acquittals in the first trial. As
such, it was error for the court to allow Respondent to argue
that those acts established that Petitioner intended to sexually
assault Complainant.
As noted, Respondent also argued to the jury that
Petitioner had the intent to inflict bodily injury. It is
impossible to ascertain whether the jury relied on the intent to
commit sexual assault (which was predicated on the acts of which
Petitioner was acquitted) or the intent to inflict bodily injury.
Therefore, Petitioner’s conviction on the Kidnapping count must
be vacated and the case remanded due to the erroneous admission
of the sexual assault acts, as the jury may have relied on those
acts to convict Petitioner of Kidnapping. Thus, on remand,
evidence of the acquitted sex assault acts must be excluded in
any retrial.36
36
Petitioner also argues that Respondent’s use of the acts of which
Petitioner was acquitted violated his right to due process. As noted by
Justice Brennan, according double jeopardy significance to an acquittal
“reflects both an institutional interest in preserving the finality of
judgments and a strong public interest in protecting individuals against
governmental overreaching.” Dowling, 493 U.S. at 355 (Brennan, J.,
dissenting). In State v. Perkins, 349 So. 2d 161, 162-63 (Fl. 1977), the
Florida Supreme Court held that under the Florida Constitution, it was
“fundamentally unfair to a defendant to admit evidence of acquitted crimes.”
That court has since reaffirmed its holding in Perkins. See Burr
v. State, 576 So. 2d 278 (Fl. 1991) (clarifying that Perkins was based on an
independent state law ground after a remand from the United States Supreme
Court for the Supreme Court of Florida to reconsider its decision in light of
Dowling); see also State v. Shropshire, 45 S.W.3d 64 (Tenn. Crim. App. 2000)
(holding that “an acquittal precludes the possibility of an inference that the
defendant committed the crime”). Petitioner should not be compelled to
relitigate issues that were already decided in his favor by a prior jury. To
burden Petitioner with the necessity of mounting a second defense to charges
(continued...)
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X.
The count charging Attempted Assault in the Second
Degree, HRS §§ 705-500 and 707-710 (count 3, renumbered from
count 27), alleged Petitioner “intentionally engaged in conduct,
which, under the circumstances as he believed them to be,
constituted a substantial step in a course of conduct intended or
known to cause serious bodily injury to [Complainant[.]” The
count charging Assault in the Third Degree, HRS § 707-712 (count
4, renumbered from count 25), alleged Petitioner “intentionally,
knowingly, or recklessly cause[d] bodily injury to
[Complainant.]” In its closing argument, Respondent stated that
the attempted assault charge was based on Petitioner’s conduct of
“putting sand and fingers down [Complainant’s] throat[.]”
Respondent stated that the assault charge was based on the “act
of hitting [Complainant’s] back and [] ribs[.]” Respondent did
not reference any of the acquitted counts.
Additionally, Petitioner did not argue on appeal to the
ICA or in his Application that any of the acts of which he was
acquitted were offered in support of the attempted assault and
assault counts. Because none of the acquitted counts supported
Petitioner’s convictions for the included offense of Assault in
the Third Degree (count 3, renumbered from count 27) and Assault
36
(...continued)
of which he was acquitted would be fundamentally unfair and could result in a
miscarriage of justice.
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in the Third Degree (count 4, renumbered from count 25), and
Petitioner makes no other meritorious arguments regarding those
counts, convictions as to these counts are affirmed.37
XI.
In light of the likelihood of retrial, we address
Petitioner’s third and fourth questions.
Petitioner’s third question concerned his alleged
voluntary release of Complainant in connection with the
kidnapping charge. Defense counsel asked Complainant on cross-
examination, “What was [Petitioner] doing when he agreed to let
you go[?]” Respondent objected on the ground that the question
misstated the evidence as assuming Petitioner “let [Complainant]
go.” The court sustained the objection and directed Petitioner
to rephrase the question. Petitioner contends first that he was
improperly limited by the court because there was testimony that
could be construed as evidence that Petitioner “physically let
[Complainant] go” and second that although the court permitted
37
In his Application, Petitioner argues in the alternative that, if
evidence of acquitted acts was admissible, the jury must be informed that he
had been acquitted of those acts. To dispel the notion that this would be an
adequate remedy, it is noted that when acquitted acts are admitted for
evidentiary purposes, there is a greater possibility the jury may conclude the
defendant committed those acts. Dowling, 493 U.S. at 362 (Brennan J.,
dissenting). Even if the jury is informed of the acquittals, “[t]here is no
guarantee that the jury will give any weight to the acquittal[s]; the jury may
disregard [them] or even conclude that the first jury made a mistake.” Id.
n.5. Because a jury may convict a defendant based in part on those acts of
which he had already been acquitted, the defendant would be compelled to
present affirmative evidence to defend against the very acts for which he had
been previously found not guilty. Id. at 362. It is apparent, then, that an
instruction informing the jury that the defendant has been acquitted of acts
introduced in a second trial is insufficient to protect the defendant from
having to relitigate issues that were already decided in his favor.
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him to rephrase the question, he was “never able to fully explore
the issue of voluntary release[.]”
As to Petitioner’s first contention, he states that
Complainant testified that at some point during the struggle
between them, Complainant told Petitioner, “I’ll stay and, and as
proof, I’ll remove my sandals.” She testified that Petitioner
“believe[d her] and let[] go and back[ed] up a tiny bit.”
Complainant related that Petitioner let go of her only after she
had attempted to flee, that Petitioner caught up with her, that
they began struggling, and that Complainant agreed she would not
run away. In that light, the court cannot be said to have abused
its discretion in sustaining Respondent’s objection because the
question implied as a matter of fact that Petitioner had
voluntarily agreed to release Complainant. See State v. Jackson,
81 Hawai#i 39, 47, 912 P.2d 71, 79 (1996) (“The scope and extent
of cross and recross-examination of a witness is within the sound
discretion of the trial judge.”).
As to Petitioner’s second contention, he claims the
court limited his right to cross-examine Complainant. However,
the court permitted Petitioner to “rephrase” his question
regarding “let[ting] complainant go.” But instead of asking more
questions on the issue, Petitioner asked only, “Was I chasing
[you] after you left?” Complainant responded, “After I had
taken off my sandals, I did not look behind me to make sure if
you were chasing me or not.” Petitioner then asked whether
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Complainant had “walked up to the hotel area[.]” But when
Complainant answered, “No, I ran as fast as I could[,]”
Petitioner terminated cross-examination regarding the issue of
voluntary release. Consequently, Petitioner’s right to
confrontation was not violated. See State v. Jackson, 81 Hawai#i
at 47-48, 912 P.2d at 79-80 (concluding that the defendant’s
right to confrontation was not violated “given that defense
counsel voluntarily terminated the recross-examination because
the intended line of questioning became redundant”).
XII.
A.
As to Petitioner’s fourth question, during Wall’s
testimony, Wall referred to Complainant as the “victim.” When
Petitioner objected, on the ground that Wall was “making a
conclusion[,]” the court sustained Petitioner’s objection.
During Officer Caires’ testimony, the officer indicated that he
returned the items he recovered “to the victim.” Respondent
asked, “And the victim was able to identify both of the items as
belonging to her?” Petitioner again objected, urging that it had
already been agreed that Respondent would not use the term
“victim.” Petitioner noted before the ICA that Respondent
referred to Complainant as “the victim” during the questioning of
two other officers as well. The court overruled Petitioner’s
objections to these references.
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Petitioner maintains that Respondent’s references to
Complainant as the “victim” were “‘incompatible with the
presumption of innocence’” and violated his right to due process.
(Quoting Jackson v. State, 600 A.2d 21, 25 (Del. 1991).) He
urges that the ICA’s reliance on Nomura, was misplaced because
unlike in Nomura, here, the court’s instruction regarding the
presumption of innocence, did not “defuse[] the bias resulting
from . . . referring to [Complainant] in a manner suggestive of
[Petitioner’s] guilt.”
B.
Petitioner challenges only Respondent’s use of the
term. In Jackson v. State, the Supreme Court of Delaware stated
that “the word ‘victim’ should not be used in a case where the
commission of a crime is in dispute.” 600 A.2d at 24. That
court stated, however, that because the defendant failed to
object to the prosecution’s use of the word, the defendant was
required to establish plain error. Jackson v. State held that
plain error was not committed because such use “occurred during
the direct examination of a police officer and F.B.I. hair
expert,” and to law enforcement officers, the term “victim” “is a
term of art synonymous with ‘complaining witness.’” Id. at 24-
25.
However, in Nomura, the ICA stated that “the term
‘victim’ is conclusive in nature and connotes a predetermination
that the person referred to had in fact been wronged.” 79 Hawai#i
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at 416, 903 P.2d at 721. There, one of the jury instructions
referred to the complaining witness as “the victim.” Id. Nomura
concluded that, because “the question of whether [the complaining
witness] had been abused was a question yet to be decided by the
jury, it was improper to refer to her as “the victim.” Id.
The instant case does not involve the use of the term
“victim” in the jury instructions. However, Nomura also found
the jury instruction problematic because the trial court must
instruct the jury on the law but may not comment upon the
evidence. Id. at 417, 903 P.2d at 722. Nomura explained that
such a rule derives from the principle that the trial judge must
endeavor at all times to maintain an attitude of fairness and
impartiality. Id. The use of the term was also wrong in light
of this principle, because the trial court could have used the
term “complaining witness” or referred to her by name to avoid
the appearance of partiality. Id. at 416-17, 903 P.2d at 721-22.
The presumption of innocence and the maintenance of fairness and
impartiality during the trial are precepts underlying Nomura.
Hence, the court erred in allowing Respondent and the witnesses
to refer to Complainant as “the victim.
C.
Contrary to the conclusion of the Supreme Court of
Delaware, see Jackson v. State, 600 A.2d at 24-25, it is not
evident that police officers generally use the term “victim” to
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refer to a complaining witnesses in police reports or when
otherwise referring to a person making a complaint against
another person. It would seem, in light of Nomura, that unless
there are good reasons found by the court for permitting
otherwise, the court should instruct all counsel that they and
their witnesses must refrain from using the term.
Notwithstanding the court’s error, the use of the term
“victim” in the limited circumstances of this case was not
prejudicial to Petitioner and, hence, does not itself warrant
reversal of his convictions. See Nomura, 79 Hawai#i at 416, 903
P.2d at 721-22. However, it “is incompatible with the
presumption of innocence for the prosecution to refer to the
complaining witness as the ‘victim,’ just as it is to refer to
the defendant as a ‘criminal.’” Jackson II, 600 A.2d at 21
(motion for clarification). Thus, on remand, this admonition
should be heeded.
XIII.
We reach Petitioner’s fifth question, because this is
an issue that may recur with respect to counts one and two and
may have affected the sentences on counts three and four. During
the sentencing hearing on October 13, 2010, Respondent referenced
State v. Vinhaca, 124 Hawai#i 128, 237 P.3d 1194 (2010). The
court acknowledged that it had presided over the Vinhaca case and
Petitioner was “in the same category.”
This Court presided over [Vinhaca] and did, in fact,
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sentence the defendant in that case to consecutive
sentencing. . . . [Petitioner], given this Court’s
familiarity with the Vinhaca case and your case, this Court
places you in the same category as Mr. Vinhaca in terms of
the need for consecutive sentencing.
(Emphasis added.) During the discussion of the Vinhaca case,
Petitioner’s counsel stated he did not know about the case. As
recounted, the ICA concluded that the court did not err in
comparing Petitioner’s crimes to Vinhaca’s crimes or in imposing
an extended sentence, because (HRS) § 706-606(4) allows the court
to consider other defendants in similar positions when imposing a
sentence, insofar as it directs the court to consider the “need
to avoid unwarranted sentence disparities among defendants with
similar records who have been found guilty of similar conduct.”
Mundon II, 2012 WL 1473433, at *5 (quoting HRS § 706-606(4)).
However, it is assumed that the sentencing
considerations concerning Vinhaca were an essential part of
Vinhaca’s pre-sentence report and were used by the court in
sentencing Vinhaca. See HRS § 706-601(1) (“[T]he court shall
order a pre-sentence correctional diagnosis and accord due
consideration to a written report of the diagnosis before
imposing sentence.”); see also HRS § 706-602(1) (requiring the
pre-sentence report to set forth, inter alia, the circumstances
surrounding the crime, the defendant’s criminal history, and the
effect of the crime on the victim). That pre-sentence report was
also available, presumably, to Respondent. However, such
information was not available to Petitioner in his own case, nor
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should it have been. See HRS § 806-73(b)(3)38 (limiting the
distribution of pre-sentence reports); see also State v. Hussein;
122 Hawai#i 495, 523, 229 P.3d 313, 341 (2010) (“Under HRS § 806-
73, then, the [pre-sentence reports] are manifestly subject to
restricted dissemination, and are not to be made available for
all to use.”) (citations omitted). Yet, Petitioner is entitled
38
HRS § 806-73 provides in relevant part as follows:
§ 806-73 Duties and Powers of Probation Officers, Adult Probation
Records
. . .
(b) All adult probation records shall be confidential
and shall not be deemed to be public records. As used in
this section, the term “records” includes but is not limited
to all records made by any adult probation officer in the
course of performing the probation officer's official
duties. The records, or the content of the records, shall be
divulged only as follows:
(3) A copy of a presentence report or investigative
report shall be provided only to:
(A) The persons or entities named in section 706-604;
(B) The Hawai#i paroling authority;
(C) Any psychiatrist, psychologist, or other treatment
practitioner who is treating the defendant pursuant to a
court order or parole order for that treatment;
(D) The intake service centers;
(E) In accordance with applicable law, persons or entities
doing research; and
(F) Any Hawai#i state adult probation officer or adult
probation officer of another state or federal jurisdiction
who:
(i) Is engaged in the supervision of a defendant or
offender convicted and sentenced in the courts of
Hawai#i; or
(ii) Is engaged in the preparation of a report for a
court regarding a defendant or offender convicted and
sentenced in the courts of Hawai#i.
(Emphases added.)
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to “‘have access to all factual information used in sentencing.’”
State v. Durham, 125 Hawai#i 114, 122, 254 P.3d 425, 433 (2011)
(quoting State v. Paaaina, 67 Haw. 408, 411, 689 P.2d 754, 757
(1984)).
Inasmuch as the court apparently relied on sentencing
information in the Vinhaca case, none of which was available to
Petitioner, the court erred in imposing a consecutive sentence
based on the court’s “familiarity with that case.” The court
cannot base its sentence on information not available to the
defendant. Thus, under the circumstances, the consideration by
the court of a specific individual as a measuring standard for
sentencing Petitioner was in error. Moreover, it does not appear
that the conduct involved in Vinhaca was similar to Petitioner’s
case.39
The ICA did state that the court considered other
matters.40 However, it cannot be said that the court’s error in
39
As Petitioner observes, in Vinhaca, there were “more victims
[two], who were younger [minors] and more closely related to [defendant]
[biological daughters].” Vinhaca’s offenses “were greater in number, more
intrusive and occurred over a longer period of time.” Petitioner argues that
“[t]he only apparent similarities are conviction for sex offense[s] and [the]
Sentencing Judge.”
40
The ICA noted that the court reviewed
the overall facts of the kidnapping/sexual assault incident;
Petitioner’s history of criminality, including the fact that he
committed the subject offenses while still on probation for an
assault conviction; that previous rehabilitation efforts have not
been effective; that Petitioner has not taken responsibility for
his failure while on probation; that Petitioner preyed on
Complainant’s vulnerability; and Petitioner’s attempts to minimize
the fact that he merely subjected his wife, as opposed to someone
in the community at large, to acts of abuse.
(continued...)
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relying on Vinhaca was harmless. Here, the court “presided over
the [Vinhaca] trial and did, in fact, sentence the defendant in
that case to consecutive sentencing.” To reiterate, when
sentencing Petitioner, the court indicated that “given this
[c]ourt’s familiarity with the Vinhaca case and [Petitioner’s]
case, this [c]ourt places [Petitioner] in the same category as
Mr. Vinhaca in terms of the need for consecutive sentencing.”
The court acknowledged that it had not imposed consecutive
sentencing on all “other defendants who have come before [the
court] with . . . similar types of crimes to be sentenced[,]” but
that it felt that Petitioner deserved consecutive sentencing
based on his similarity to Vinhaca. Inasmuch as we vacate the
convictions in counts one and two, the sentences therein are also
vacated; although, as noted, we answer Petitioner’s fifth
question because the issue may recur. Moreover, with respect to
the convictions on counts three and four, which we affirm, there
is a reasonable possibility that the error in relying on the
Vinhaca case, might have contributed to Petitioner’s sentences in
counts three and four. Accordingly, we vacate the sentences in
those counts.
XIV.
For the reasons stated, we (1) vacate Petitioner’s
convictions as to Count 1, Attempted Sexual Assault in the First
40
(...continued)
Mundon II, 2012 WL 1473433, at *5.
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Degree, and Count 2, Kidnapping; (2) affirm Petitioner’s
convictions as to Count 3, Assault in the Third Degree, and Count
4, Assault in the Third Degree; and (3) vacate Petitioner’s
sentence in Counts 3 and 4. We remand the case to the court for
a new trial on Counts 1 and 2 and for resentencing on Counts 3
and 4.
Stuart N. Fujioka, /s/ Paula A. Nakayama
for petitioner
/s/ Simeon R. Acoba, Jr.
Charles A. Foster,
for respondent /s/ Sabrina, S. McKenna
/s/ Richard W. Pollack
/s/ Rhonda A. Nishimura
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