State v. KIESE

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Electronically Filed
Supreme Court
SCWC-29792
29-MAR-2012
10:17 AM

IN THE SUPREME COURT OF THE STATE OF HAWAI#I
---O0O---

STATE OF HAWAI#I, Respondent/Plaintiff-Appellee,

vs.

JASON KIESE, Petitioner/Defendant-Appellant.

NO. SCWC-29792

CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(ICA NO. 29792; FC-CR. NO. 09-1-1136)

March 29, 2012

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

AMENDED OPINION OF THE COURT BY MCKENNA, J.1

We hold that although the ICA correctly held that there was

sufficient evidence to sustain Petitioner/Defendant-Appellant

Jason Kiese’s (“Kiese”) harassment conviction, it erred in not

addressing the family court’s failure to stay Kiese’s sentence

1
The Opinion of the Court originally filed on March 29, 2012, is amended to
include the date the Opinion was filed.

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pending appeal based on the mootness doctrine because the public

interest exception to the mootness doctrine applies.

We further hold that Kiese, as a petty misdemeanant on bail,

pursuant to Hawai#i Revised Statutes (“HRS”) §§ 804-4(a) and (b)

(Supp. 2001), State v. Ortiz, 74 Haw. 343, 845 P.2d 547 (1993),

and State v. Miller, 79 Hawai#i 194, 900 P.2d 770 (1995), was

entitled to a continuance of bail as a matter of right pending

appellate review, and the family court was without jurisdiction

to execute Kiese’s sentence. The family court therefore erred by

denying Kiese a stay of his petty misdemeanor sentence pending

appeal.

Kiese’s other points are unpersuasive, and we hold that the

ICA did not err (1) in concluding that, even if the prosecutor’s

line of questioning was improper, the family court is presumed to

have disregarded it; and (2) by making presumptions about non-

responses on the record to sustain the conviction.

Although we accepted certiorari to address the stay of

sentence issue, because we uphold the conviction and because

Kiese has already served his probationary sentence, we affirm the

ICA’s judgment on appeal, which affirmed the family court’s

judgment of conviction and sentence.

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I. BACKGROUND

Kiese was charged by Complaint with one count of harassment,

in violation of HRS § 711-1106(1)(a)(Supp. 2008).2 The

prosecution stemmed from an incident in which Kiese allegedly

slapped his six-year-old son (“Minor”) in the face once with an

open hand and struck him with a thin bamboo rod on the buttocks,

arms, and hands multiple times. After a bench trial, the family

court found Kiese guilty as charged and denied his motion to stay

his sentence pending appeal. The ICA affirmed the judgment of

conviction and concluded that the family court’s denial of his

stay was erroneous but moot. State v. Kiese, No. 29792 (App.

Feb. 25, 2011)(mem.) at 20. What follows is a brief history of

this case.

A. Competency Hearing

Before trial commenced, the Minor was called to the stand to

determine whether he was competent to testify. During the

competency hearing, the Minor’s responses were frequently noted

as “not audible” in the trial transcripts. The Minor often gave

non-verbal answers to questions posed by the prosecutor and

defense counsel, shaking his head, nodding his head, and

shrugging his shoulders. The court, prosecutor, and defense

counsel interpreted the Minor’s gestures for the record, when

2
HRS § 711-1106(1)(a) states, as it did at the time of the alleged
offense, “A person commits the offense of harassment if, with intent to
harass, annoy, or alarm any other person, that person . . . [s]trikes, shoves,
kicks, or otherwise touches another person in an offensive manner or subjects
the other person to offensive physical contact[.]”

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there was apparently no verbal response or even immediately

following a verbal response consistent with the gesture. No

objections were raised to the court’s, prosecutor’s, or defense

counsel’s interpretations.

After cross-examining the Minor, however, defense counsel

challenged the Minor’s competency based on these gestures by

saying, “Competency, Your Honor, again, goes beyond whether or

not the Minor can answer yes or no questions. Sometimes he’s

shrugging his shoulders. Sometimes he’s nodding his head, Your

Honor. He has to be able to state in sentences what transpired.”

The family court responded, “He needs to communicate

effectively.” Although the family court remarked that the Minor

presented a “borderline case,” he ultimately found the Minor

competent to testify.

The Minor was then administered the oath, with no audible

response to the oath registering in the trial transcripts, but

with the clerk administering the oath stating, “Okay. Thank

you,” to the Minor. Defense counsel did not object.

B. Trial

During the trial itself, the court, prosecutor, and defense

counsel continued explaining the Minor’s gestures for the record.

There were no objections as to any interpretation of the Minor’s

gestures.

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Because the Minor was not very verbal, the State elicited

some of his testimony as follows, referring to prior

conversations among the Minor, prosecutor, and defense counsel:
Q: (By the State): Okay. [Minor], do you remember talking
to [defense counsel] and myself earlier today?
A: (By Minor): Not really.
Q: Not really. You don’t remember talking to us?
A: (No audible response).
Q: Okay. So you don’t remember telling us that Daddy hit
you with a stick?
A: (No audible response).
Q: Wait, okay. [Minor], do you remember telling me that
Daddy hit you with a stick?
A: (No audible response).
Q: So do you remember?
(By the State): Your Honor, if the record will reflect the
witness nodded his head.
THE COURT: Yes.
Q (By the State): Okay. And when you told us that Daddy
hit you with the stick, do you remember telling us that
Daddy hit you to the face with a stick?
(By Defense Counsel): Objection, Your Honor. Move to
strike, hearsay statement, out of court.
(By the State): Your Honor, it’s obvious -- it’s a prior
consistent statement. I’m trying to lay the foundation to
bring in another witness to -- well, --
THE COURT: Objection is sustained.
Rephrase.
(By the State): Okay.
THE COURT: Keep it short.
Q (By the State): [Minor], do you remember telling me that
Daddy hit you with a stick?
A: (No audible response).
Q: Yes. Okay.
Your Honor, may the record reflect the witness has nodded.
THE COURT: Yes.
Q (By the State): Do you remember telling us that Daddy hit
you to the face?
(By Defense Counsel): Objection, Your Honor. Move to
strike. Same, hearsay, out-of-court statement.
THE COURT: Overruled.
Let the record reflect the witness was nodding his head up
and down.
Q (By the State): Okay. Do you remember telling us that he
hit you to the face with a stick?
(By Defense Counsel): Objection, Your Honor. Move to
strike.
THE COURT: Overruled.
(By the State): Again, Your Honor, prior consistent
statement.
THE COURT: Same grounds.
And the same, the record will reflect that the witness was
nodding his head up and down.

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Q (By the State): Okay. So right now, when you were
sitting there you told us that Daddy hit you with a stick to
the arms and to the butt, right?
A: (No audible response).
Q: Okay. Is that a yes?
A: (No audible response).
Q: Yes. Okay.
May the record reflect that the witness has nodded his head.
THE COURT: Yes.
. . . .
Q (By the State): Okay. But do you remember telling
[prosecution and defense counsel] earlier that [Kiese] did
[hit you with a stick to the face]?
A: (No audible response). 3
Q; Yes?
A: (No audible response).
By the State: Your Honor, if the record will reflect the
witness is nodding his head.
THE COURT: The record will so reflect.
. . . .
Q (By the State): Do you remember telling me earlier that
he hit you about two times on the arm?
(By Defense Counsel): I’m going to raise objections, Your
Honor. It’s an out-of-court statement. It’s hearsay.
A: No.
Q (By the State): No, you don’t remember saying that?
A: (No audible response).
. . . .
Q (By the State): And how many times did Daddy hit you to
the face?
A: Two or one.
Q: Two or one. Okay. Do you remember telling me that it
was two to three times --
(By Defense Counsel): Objection, Your Honor. Leading.
Witness has answered in court two to one times and it’s an
out-of-court statement.
THE COURT: Overruled. You’ll have your chance.

The Minor further testified that, on the day in question, he

misbehaved at school and his father scolded him, hit him on the

face, and spanked him four or five times with a small stick on

the hands and butt. He also testified that when his father hit

him, it hurt, and he cried.

3
The Minor subsequently testified that Kiese did “not really” hit him on
the face with a stick, that Kiese “[m]aybe sometimes or not sometimes” hit him
on the face with a stick, and that, on the day of the alleged incident he
“[did not] know” whether Kiese hit him on the face with a stick. The Minor
nodded his head when the prosecutor asked him if he remembered telling the
prosecutor and defense counsel that Kiese did strike him on the face with a
stick.

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The State then called Honolulu Police Officer Lordy Cullen,

who testified that, on the day after the alleged incident, he was

called to Minor’s school for a physical abuse case, and noticed

red marks across the Minor’s arm, hand, and face. Photographs of

the red marks were entered into evidence. Officer Cullen

testified that, when asked, the Minor stated that all of the

marks resulted from his father spanking him with a yellow stick.

The State then called Ayako Kiese (“Ayako”), Kiese’s wife,

who testified that she had told Kiese that the Minor had been

“too playful” at school for the three days preceding the

incident. She testified that she did not witness the incident

because she had come home after it had happened, and the Minor

was in his room in a time-out, possibly crying or having finished

crying. She testified that she did not see the Minor that night

but that the next morning, she saw marks on the Minor’s hands.

She testified the Minor told her that he got the marks when his

father spanked his butt while he tried to cover his butt with his

hands. Ayako testified that Kiese later told her that he spanked

Minor with a futon stick, which Ayako described as very thin and

measuring eighteen to twenty-four inches long.

Kiese decided to testify and was the only defense witness.

He testified that the Minor had misbehaved at school in the days

before the incident. After the first day of misbehavior, Kiese

told the Minor that if he continued misbehaving, Kiese was going

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to spank him. Kiese stated that he also took away the Minor’s X-

box, snack, and TV privileges.

Kiese testified that the next day, Ayako told him that the

Minor spit in the cafeteria, wrestled with other kids, and was

not listening. Kiese testified that, at first, the Minor claimed

his friend did all of those things, and that he was disappointed

because the Minor was lying. He admitted that he slapped the

Minor once on the face, but not hard, “because [Minor is] just a

kid,” and that the Minor’s head moved back a little bit. After

the slap, Kiese testified, the Minor told the truth about his

behavior in school. Kiese then testified that he told the Minor

that he would be punished, first for lying, second for being

disrespectful and not following the rules.

Kiese testified that he spanked the Minor five or six times

with the futon stick, aiming for his buttocks, but striking the

Minor’s hands and arms as he blocked the blows. Defense counsel

elicited testimony from Kiese that he did not intend to harass

the Minor but rather, that the slap and spanks were warranted as

discipline.

On cross-examination, Kiese testified that the Minor was six

years old and less than four feet tall. The prosecutor also

elicited Kiese’s admission that he could have disciplined the

Minor with open-handed spanks, as he had done before, rather than

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with a stick, and the Minor “probably” would have listened to

him.

At the conclusion of trial, the family court found Kiese

guilty as charged because “the amount of force used was not

reasonable, not proportional for the size and age of the child.”

C. Sentencing

Sentencing occurred immediately after conviction. The State

recommended probation with parenting classes. Defense counsel

agreed, but requested that any sentence be stayed pending Kiese’s

appeal. The family court imposed a sentence of six months of

probation, parenting classes, and fees, but denied Kiese’s

request for a stay of the sentence pending appeal.

D. Findings of Fact and Conclusions of Law

The family court subsequently filed its Findings of Fact,

Conclusions of Law, and Judgment of Conviction. The only

Findings of Fact Kiese challenged before the ICA are the

following:
1. On January 29, 2009, [Ayako] was notified by school
officials at [Minor’s] school that [Minor], who was six
years old on the date of the incident, had misbehaved
earlier that day, acting in a manner described as being
“playful” and not in a dangerous manner.
4. Upon arriving home later that evening, [Ayako] found out
that [Minor] was already in a “timeout” and was crying.
[Ayako] did not talk to [Minor] nor [Kiese] as to the extent
of the interaction between the two that evening and told
[Minor] to get ready for bed.
13. For three consecutive days prior to January 29, 2009,
[Kiese] and [Ayako] had been informed that [Minor] had been
too “playful” and “misbehaved” during school, but none of
the reports indicated that [Minor] was a danger to self or
others.

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16. [Minor] was under four feet tall and based on fact-
finder’s own visual observations, [Minor] was a thin, slight
boy and much smaller in comparison to [Kiese].

Kiese also challenged Conclusion of Law Number 5, alleging it was

based on erroneous findings of fact. Conclusion of Law Number 5

states:
Based on the credible evidence presented and the justifiable
inferences of fact, this Court finds that [Kiese] is guilty
of the offense of Harassment in violation of HRS § 711-
1106(1)(a) as the State has proven beyond a reasonable doubt
that the force employed by [Kiese] was done WITHOUT “due
regard for the age and size” of the [Minor].

E. ICA Appeal

On appeal before the ICA, Kiese raised the following points

of error: (1) the family court erred in finding the Minor

competent to testify in violation of Rules 603 and 603.1 of the

Hawai#i Rules of Evidence; (2) the State failed to adduce

sufficient evidence to sustain the conviction; (3) Kiese’s right

to a fair trial was violated by the prosecutor’s misconduct; (4)

the family court erred as a matter of law in denying Kiese’s

request to stay the sentencing pending appeal; and (5) the family

court failed to exercise reasonable control over the presentation

of evidence.

The ICA issued a memorandum opinion affirming Kiese’s

judgment of conviction. See State v. Kiese, No. 29792 (App. Feb.

25, 2011) (mem.) The ICA rejected the first three of Kiese’s

points of error, summarily held that the family court erred as to

the fourth point of error but declined to address that point on

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the merits as moot, and found his fifth point of error meritless.

Kiese, mem. at 4-20. Kiese timely appealed the ICA’s judgment.

F. Certiorari

In his application for certiorari, Kiese presents the

following issues:
1. The ICA gravely erred in holding that there was
sufficient evidence to sustain Kiese’s conviction of
harassment and in using facts not in the record [i.e.,
Kiese’s height and weight] to reach its conclusion.
2. The ICA gravely erred in holding that the prosecutor’s
line of questioning asserting his personal knowledge did not
constitute prosecutorial misconduct.
3. The ICA gravely erred in making presumptions, where the
record reflected “no response” to the oath and throughout
[Minor’s] testimony, to sustain the conviction.
4. The ICA gravely erred in not addressing the family
court’s error of failing to stay the sentence pending appeal
because guidance is necessary for courts. 4

II. DISCUSSION

A. Substantial evidence supports Kiese’s conviction
for harassment.

Kiese’s first challenge is to the sufficiency of the

evidence supporting his conviction for harassment. Under HRS §

711-1106(1)(a), the State’s burden at trial was to prove beyond a

reasonable doubt that Kiese struck, shoved, kicked, or otherwise

touched the Minor in an offensive manner (or subjected the Minor

to offensive physical contact), with the intent to harass, annoy,

or alarm the Minor. The State also had the burden of disproving

the parental justification defense raised by Kiese beyond a

reasonable doubt.

4
The issues underlying the first and fifth points of error before the ICA are
not explicitly pursued on certiorari, so they will not be discussed further.

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As a threshold matter, several of the family court’s

findings of fact were not challenged before the ICA by either the

State or Kiese. As such, those facts are binding upon the

appellate courts. See Kelly v. 1250 Oceanside Partners, 111

Hawai#i 205, 227, 140 P.3d 985, 1007 (2006). Specifically,

neither the State nor Kiese disputes the family court’s findings

that Kiese slapped the Minor in the face; struck the Minor more

than five times with a bamboo stick with enough force to leave

visible welts the next morning; or that photographs taken the day

after the alleged incident and entered into evidence depict the

red slash marks on Minor’s hand and arms and the red slap mark

left on Minor’s face.

Kiese’s challenge to the sufficiency of the evidence,

therefore, is not as to whether he made offensive contact with

the Minor. Rather, his challenge is to whether those actions

were accompanied with the requisite intent to harass, alarm, or

annoy the Minor. Assuming intent was proven, Kiese also

challenges his conviction on the basis that the State failed to

disprove his parental justification defense beyond a reasonable

doubt. Specifically, Kiese asserts that the State did not

disprove beyond a reasonable doubt that the force he employed was

with due regard to the Minor’s age and size.

Our review of challenges to the sufficiency of evidence is

deferential to the trial court:

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We have long held that evidence adduced in the trial
court must be considered in the strongest light for the
prosecution when the appellate court passes on the legal
sufficiency of such evidence to support a conviction; the
same standard applies whether the case was before a judge or
a jury. The test on appeal is not whether guilt is
established beyond a reasonable doubt, but whether there was
substantial evidence to support the conclusion of the trier
of fact. Indeed, even if it could be said in a bench trial
that the conviction is against the weight of the evidence,
as long as there is substantial evidence to support the
requisite findings for conviction, the trial court will be
affirmed.
“Substantial evidence” as to every material element of
the offense charged is credible evidence which is of
sufficient quality and probative value to enable [a person]
of reasonable caution to support a conclusion. And as trier
of fact, the trial judge is free to make all reasonable and
rational inferences under the facts in evidence, including
circumstantial evidence.

State v. Matavale, 115 Hawai#i 149, 157-58, 166 P.3d 322, 330-31

(2007)(citation omitted).

Addressing the issue of intent, we have long held that

intent can be proven inferentially:
The law recognizes the difficulty by which intent is proved
in criminal cases. We have consistently held that since
intent can rarely be proved by direct evidence, proof by
circumstantial evidence and reasonable inferences arising
from circumstances surrounding the act is sufficient to
establish the requisite intent. Thus, the mind of an
alleged offender may be read from his acts, conduct, and
inferences fairly drawn from all the circumstances.

State v. Sadino, 64 Haw. 427, 430, 642 P.2d 534, 536-37 (1982)

(citations omitted).

In this case, although Kiese testified that his overriding

intent in striking the Minor was disciplinary, there was

substantial evidence at trial supporting the family court’s

conclusion that Kiese intended to harass, annoy, or alarm the

Minor. Although it is undisputed that the Minor’s behavior had

escalated over the course of three days and that taking away his

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privileges had not been effective, Kiese testified that a

spanking with his hand “probably” would have corrected the

misbehavior. Instead, Kiese chose to slap the Minor in the face

and strike him with a bamboo stick at least five times with

enough force to leave red welts visible the next day. The Minor

also testified that the strikes hurt and he cried.

Kiese argues that State v. Stocker stands for the

proposition that a reasonable inference of intent to convict a

parent for harassment can be drawn when it is shown that the

parent strikes his child “after becoming angry and ‘yelling[.]’”

90 Hawai#i 85, 92, 976 P.2d 399, 406 (1999). Therefore, Kiese

argues, because he did not become angry and yell at the Minor, no

reasonable inference can be drawn that he possessed the requisite

intent. We agree with Kiese’s summary of Stocker, but we

disagree with the conclusion he draws. Instead, we look to

Kiese’s actions and all of the other surrounding circumstances.

Viewed in the light most favorable to the State, substantial

evidence supports the reasonable inference that Kiese acted with

the requisite intent to harass, annoy, or alarm the Minor. The

ICA did not gravely err in so concluding.

Kiese also challenges his conviction on the basis that the

State failed to disprove that his conduct was justified as

parental discipline. We find his argument unpersuasive. The

Matavale plurality reaffirmed the well-established principle that

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a parent’s right to direct his or her child’s upbringing is “of

constitutional dimension.” 115 Hawai#i at 158, 166 P.3d at 331

(citation omitted). The state, on the other hand, also possesses

an interest in protecting child welfare. See id. To strike a

balance between the two interests, the legislature created HRS §

703-309 (1993), which stakes out the boundaries of a parent’s

privilege to exercise physical control over a child in the face

of a criminal charge. That statute provides (as it did at the

time of the alleged offense):

Use of force by persons with special responsibility for
care, discipline, or safety of others. The use of force
upon or toward the person of another is justifiable under
the following circumstances:
(1) The actor is the parent or guardian or other person
similarly responsible for the general care and supervision
of a minor, or a person acting at the request of the parent,
guardian, or other responsible person, and:
(a) The force is employed with due regard for the age and
size of the minor and is reasonably related to the purpose
of safeguarding or promoting the welfare of the minor,
including the prevention or punishment of the minor's
misconduct; and
(b) The force used is not designed to cause or known to
create a risk of causing substantial bodily injury, 5
disfigurement, extreme pain or mental distress, or
neurological damage.

The defendant bears the “initial burden of production with

respect to the facts necessary to put the parental discipline

defense at issue.” Stocker, 90 Hawai#i at 95, 976 P.2d at 409.

The burden then shifts to the State to “disprove the

5
HRS § 707-700 (Supp. 2008) defines “substantial bodily” injury as bodily
injury that causes: “(1) A major avulsion, laceration, or penetration of the
skin; (2) A burn of at least second degree severity; (3) A bone fracture;
(4) A serious concussion; or (5) A tearing, rupture, or corrosive damage to
the esophagus, viscera, or other internal organs.” This definition applied at
the time of the alleged offense.

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justification evidence that was adduced or to prove facts

negativing the justification defense, and to do so beyond a

reasonable doubt.” State v. Kaimimoku, 9 Haw. App. 345, 350, 841

P.2d 1076, 1079 (1992)(citations omitted). “Because the

requirements of HRS § 703-309(1) are set out in the conjunctive,

rather than the disjunctive, the prosecution needed only to

disprove one element beyond a reasonable doubt to defeat the

justification defense.” State v. Crouser, 81 Hawai#i 5, 11, 911

P.2d 725, 731 (1996).

In this case, the State does not dispute that Kiese is a

parent responsible for the general care and supervision of the

Minor, so subsection (1)’s requirements are met. As to

subsection (1)(a)’s requirements, the State’s burden is to prove

that the force employed by Kiese was without due regard for the

age and size of the minor or “was not actually (subjective) and

reasonably (objective) believed necessary to protect the welfare

of the [minor.]” State v. Thate, 106 Hawai#i 252, 265, 103 P.3d

412, 425 (App. 2004). Lastly, although subsection (1)(b) sets

forth various kinds of prohibited force, “physical discipline may

be so excessive that it is no longer reasonably related to

safeguarding the welfare of the minor, even if it does not exceed

the bounds set in subsection (b).” Crouser, 81 Hawai#i at 12,

911 P.2d at 732.

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Most recently, the Matavale plurality explained that

“reasonableness” of force turns on the totality of the facts and

circumstances of each case:
The means used to effect the discipline must also be
reasonable. In determining whether force is reasonable, the
fact finder must consider the child’s age, the child’s
stature, and the nature of the injuries inflicted, i.e.,
whether the force used was designed to cause or known to
create a risk of causing substantial bodily injury,
disfigurement, extreme pain or mental distress, or
neurological damage given the child’s age and size. These
required factors are obviously general in nature and, by
their very terms, place a large amount of discretion with
the courts to determine whether the actions of a parent fall
within the parameters of parental discipline, as set forth
in HRS § 703-309(1). Clearly, there is no bright line that
dictates what, under all circumstances, is unreasonable or
excessive corporal punishment. Rather, the permissible
degree of force will vary according to the child’s physique
and age, the misconduct of the child, the nature of the
discipline, and all the surrounding circumstances. It
necessarily follows that the question of reasonableness or
excessiveness of physical punishment given a child by a
parent is determined on a case-by-case basis and is
dependent upon the particular circumstances of the case.

115 Hawai#i at 164-65, 166 P.3d at 337-38 (emphasis in original).

Kiese cites Matavale and State v. Robertson, No. 28683 (App.

Nov. 30, 2009) (mem.),6 in which convictions for abuse of a

family or household member were reversed because each parent’s

justification defense was not disproven under circumstances in

which the parent used an implement to strike the child, leaving

bruises upon the child. Kiese argues that the ICA gravely erred

in affirming his conviction, thereby casting the law of parental

discipline “in disarray.” We disagree.

6
Under Hawai#i Rules of Appellate Procedure Rule 35(c)(2) (2010),
“Memorandum opinions and unpublished dispositional orders are not precedent,
but may be cited for persuasive value[.]”

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Insofar as “due regard for the age and size of the minor” is

the sole issue related to the parental justification defense on

certiorari, Matavale is of limited use to Kiese. In that case,

the minor daughter was fourteen years old and 150-154 pounds. 115

Hawai#i at 165, 166 P.3d at 338. Furthermore, the minor daughter

in Matavale testified that although her mother hit her multiple

times with plastic implements, the strikes were not very hard and

did not hurt that much. See id. The six-year-old Minor in this

case, on the other hand, testified that his father’s strikes hurt

and he cried. The strikes also left visible welts.

Second, insofar as every parental discipline case turns on

its own unique facts and circumstances, and insofar as the

Robertson memorandum opinion is, at most, persuasive, it too is

of limited use to Kiese. In that case, a father disciplined his

eight-year-old son for lying about receiving a “bad-day note”

from school by striking him about eight times on the buttocks

with a folded belt. Robertson, mem. op. at 3. The child

testified that he felt sad and cried after the spanking, but

other witnesses testified that later that night and the next day,

the child was not in pain and was able to resume his normal

activities. See id. at 3-4. In reversing Robertson’s

conviction, the ICA noted that it was not unreasonable for father

to conclude that corporal punishment was warranted after non-

physical disciplinary measures failed. See id. at 9. In this

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case, Kiese did not just resort to corporal punishment after non-

physical disciplinary measures failed. Rather, he stepped up the

nature of the corporal punishment in excess of what he admitted

probably would have worked. In any event, Robertson is not

binding precedent.

In this case, Kiese slapped the six-year-old Minor on the

face and struck him multiple times with a bamboo stick on the

buttocks, causing him to feel pain and to cry, and leaving

visible red welts a day after the incident. Furthermore, the

evidence adduced at trial was that the Minor was a thin, slight,

boy, no more than four feet tall, and that Kiese was much larger.

In the light most favorable to the State, substantial evidence

exists to support the conclusion that the force Kiese employed

was without due regard for the age and size of the minor,

disproving Kiese’s parental justification defense.

Lastly, none of the challenged findings of fact are clearly

erroneous. First, as to challenged Findings of Fact Numbers 1

and 13, testimony adduced at trial reflected only that the Minor

was “too playful” at school; there was no testimony or other

evidence that his behavior was dangerous. Second, Finding of

Fact Number 4 is not clearly erroneous, as Ayako testified that

when she came home, the Minor either was crying or had finished

crying. Third, Finding of Fact Number 16 regarding the family

court’s visual observations and comparisons of Kiese’s and the

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Minor’s size is entitled to deference. Lastly, the sole

conclusion of law challenged on appeal is correct. Based on the

totality of circumstances in this case, substantial evidence

exists to support the conclusion that the state proved beyond a

reasonable doubt that the force Kiese employed against the Minor

was without due regard for his age and size, and therefore

disproved his parental justification defense. Therefore,

substantial evidence supports Kiese’s harassment conviction.

B. The prosecutor’s line of questioning asserting his
personal knowledge was improper but harmless.

On certiorari, Kiese argues that the prosecutor’s

questioning of the Minor concerning statements made to him and to

defense counsel in a prior conversation, reproduced supra,

constituted prosecutorial misconduct warranting a new trial. At

the outset, we note that we review this challenge under plain

error, as prosecutorial misconduct was not the basis of the

objections defense counsel made at trial to the prosecutor’s line

of questioning. See Hawai#i Rules of Penal Procedure (“HRPP”)

Rule 52(b)(1977) (“Plain errors or defects affecting substantial

rights may be noticed although they were not brought to the

attention of the court.”).

Allegations of prosecutorial misconduct are reviewed under

the harmless beyond a reasonable doubt standard, and this court

will not overturn a defendant's conviction on the basis of

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plainly erroneous prosecutorial misconduct unless “there is a

reasonable possibility that the misconduct complained of might

have contributed to the conviction.” State v. Rogan, 91 Hawai#i

405, 412, 984 P.2d 1231, 1238 (1999)(citation omitted). “Factors

considered are: (1) the nature of the conduct; (2) the promptness

of a curative instruction; and (3) the strength or weakness of

the evidence against the defendant.” State v. Wakisaka, 102

Hawai#i 504, 513, 78 P.3d 317, 326 (2003)(citations omitted).

In this case, we hold that the prosecutor’s line of questioning

was improper but harmless, as there is no reasonable possibility

that the error contributed to Kiese’s conviction.

At trial, the prosecutor repeatedly questioned the Minor

about prior conversations had among the Minor, defense counsel,

and the prosecutor concerning the incident. During these

questions, defense counsel objected on the bases of hearsay and

leading, and the prosecutor justified the questions as laying the

foundation for the admission of prior consistent statements.

The family court sustained defense counsel’s first objection, but

then overruled all of defense counsel’s subsequent objections.

The prosecutor characterized his questions as necessary to

elicit prior consistent statements from the Minor. Hawai#i Rules

of Evidence Rule 613(c)(1993) (governing prior consistent

statements) does not support the prosecutor’s position:

(c) Prior consistent statement of witness. Evidence of a
statement previously made by a witness that is consistent

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with the witness' testimony at the trial is admissible to
support the witness' credibility only if it is offered after:
(1) Evidence of the witness' prior inconsistent statement
has been admitted for the purpose of attacking the witness'
credibility, and the consistent statement was made before
the inconsistent statement; or
(2) An express or implied charge has been made that the
witness' testimony at the trial is recently fabricated or is
influenced by bias or other improper motive, and the
consistent statement was made before the bias, motive for
fabrication, or other improper motive is alleged to have
arisen; or
(3) The witness' credibility has been attacked at the
trial by imputation of inaccurate memory, and the consistent
statement was made when the event was recent and the
witness' memory fresh.

In this case, the prosecutor’s line of questioning occurred

during direct examination of the Minor, who was the first to

testify, and whose testimony had not been impeached. Thus, none

of the purposes for which a prior consistent statement may be

offered applied. As such, “[a] prior consistent statement of a

witness who has merely testified in direct examination, without

impeachment, is ordinarily excluded because it is unnecessary and

valueless.” State v. Altergott, 57 Haw. 492, 504, 559 P.2d 728,

736 (1977) (citing 4 Wigmore, Evidence § 1124 (Chadbourn rev.

1970)).

In addition, the prosecutor’s questions about the prior

conversations asserted personal knowledge of facts at issue in

the trial where he could not also act as a witness. At oral

argument, the State conceded that the prosecutor’s questions were

improper and that the admission of the testimony was error, but

argued that such error did not constitute reversible error.

Kiese, on the other hand, asserts that the questions were not

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only improper, but constituted prosecutorial misconduct

warranting a new trial.

In reviewing the nature of the conduct, we do not agree that

the prosecutor’s improper conduct was as egregious as that

present in the cases Kiese cites: Berger v. United States, 295

U.S. 78 (1935), State v. Rulona, 71 Haw. 127, 785 P.2d 615

(1990), and State v. Sanchez, 82 Hawai#i 517, 923 P.2d 934 (App.

1996). In Berger, the United States Supreme Court held that the

Assistant United States Attorney’s conduct during trial was

indecorous, calculated to mislead the jury with insinuations of

out-of-court conversations between the witness and him that never

actually took place, and that the pronounced and persistent

misconduct had a cumulative effect on the jury, necessitating a

new trial. 295 U.S. at 85, 89. In Rulona, this court reversed a

defendant’s judgment of conviction because the combination of

three errors made by the trial court (only one of which was that

it did not stop the prosecutor’s questioning of a witness about a

prior conversation had between the two of them) denied the

defendant a fair trial. 71 Haw. at 133, 785 P.2d at 618 (citing

Berger, 285 U.S. at 84).

Similar to Berger, in Sanchez, a new trial was warranted

because of multiple instances of aggressive and out-of-bounds

comments and questions by the prosecutor (including assertions of

personal knowledge), the cumulative effect of which was to deny

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the defendant of a fair trial. 82 Hawai#i at 534, 923 P.2d at

951. In that case, the prosecutor questioned the witnesses about

prior conversations had with him and contradicted the testimony

they gave. 82 Hawai#i at 529-30, 923 P.2d at 946-47. The

prosecutor then indicated that he could prove that his version of

the prior conversation was correct through other witnesses

present, but the record did not reflect that this was ever done.

See id.

Unlike the prosecutors in Berger and Sanchez, the

prosecutor’s improper conduct here seemed merely to reflect an

apparent lack of awareness of the prohibition against making

himself a witness during trial. Compounding the prosecutor’s

misunderstanding was that neither the defense counsel nor the

family court explicitly recognized the prosecutor’s line of

questioning as improper on the basis of Hawai#i Rules of

Professional Conduct Rule 3.4. Instead, defense counsel objected

to the line of questioning as hearsay and leading, while the

family court overruled and sustained defense counsel’s objections

on bases that were not clear. Thus, the prosecutor’s improper

conduct proceeded unchecked. The improper conduct, however, was

harmless. See, e.g., State v. Tuua, 125 Hawai#i 10, 13-17, 250

P.3d 273, 276-80 (2011) (citing, inter alia, State v. Maluia, 107

Hawai#i 20, 27, 108 P.3d 974, 981 (2005), to hold that the

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prosecutor’s conduct was improper before proceeding to a

harmlessness analysis).

In examining the second step in the harmlessness analysis,

the promptness of a curative instruction, we note that “where a

case is tried without a jury, it is presumed that the presiding

judge will have disregarded the incompetent evidence and relied

upon that which was competent.” State v. Antone, 62 Haw. 346,

355, 615 P.2d 101, 108 (1980) (citations omitted); see also State

v. Gutierrez, 1 Haw. App. 268, 270, 618 P.2d 315, 317 (1980).7

The most damaging testimony resulting from the prosecutor’s

improper line of questioning was that Kiese may have struck the

Minor in the face with a bamboo stick. Kiese argues that the

admission of this testimony forced him to testify that he had

only slapped the Minor in the face. Kiese’s argument is,

however, undercut by the record. The Minor’s testimony regarding

whether Kiese struck him on the face with a stick was deeply

contradictory8; he testified that Kiese “maybe sometimes or not

sometimes” or did “not really” strike him in the face with a

stick. He also testified that he “[did not] know” if Kiese

7
We note that while it is generally presumed that the presiding judge in a
bench trial disregarded incompetent evidence, the presumption is, of course,
rebuttable.
8
In this regard, we disagree with the ICA’s assertion that “the answers
elicited from [the Minor in response to the prosecutor’s improper line of
questioning] were later confirmed by Kiese.” Kiese, mem. op. at 20. Although
we disagree, the ICA’s statement does not constitute grave error requiring a
reversal of Kiese’s conviction.

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struck him in the face with a stick. When the prosecutor

persisted in re-asking the question, the Minor finally nodded.

Further, Officer Lordy Cullen also testified that the Minor

told him, when asked, that all the red marks (including the one

on his face) were made with “a yellow stick.” Kiese does not

allege any error with the prosecutor’s questioning of Officer

Cullen. Kiese’s decision to testify thus may have been prompted

by Officer Cullen’s testimony, which was properly elicited, not

just the Minor’s testimony, elicited through the prosecutor’s

improper line of questioning.

The family court appears to have disregarded the

contradictory testimony given by the Minor about whether Kiese

struck him in the face with the bamboo stick. No mention is made

of that testimony at all, and in unchallenged Finding of Fact

Number 6, the family court found that Kiese slapped the Minor on

the face with an open hand. Not much, if any, of the Minor’s

testimony is reflected in the Findings of Fact and Conclusions of

Law.

Lastly, even disregarding the Minor’s testimony, the

evidence against Kiese was not weak. Kiese admitted that he

slapped the Minor’s face with his open hand once and struck the

Minor’s hands, arms, and buttocks five or six times with a bamboo

stick. Kiese also admitted that an open-handed spank would

probably have been sufficient to correct the Minor’s misbehavior.

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The photographic evidence, entered via Officer Cullen’s

testimony, showed that red marks were still visible on the

Minor’s face, hands, and arms the day after the alleged incident.

Ayako testified that at one point, the Minor was crying after the

incident. Based on these facts, we conclude that the

prosecutor’s improper line of questioning was harmless beyond a

reasonable doubt.

C. The ICA did not gravely err by making presumptions
about the record to sustain the conviction.

Kiese argues on certiorari that the ICA improperly assumed

that the Minor was competent to testify and improperly relied on

facts not in evidence to affirm his conviction. These arguments

are based upon the numerous instances in the record where the

Minor’s testimony registered as “no audible response” and the

court, prosecutor, and defense attorney noted for the record that

the Minor was nodding, shaking his head, or shrugging. Kiese

argues, “Because the family court did not require a clear

response from [the Minor], the transcript was not complete and

significant portions of [the Minor’s] answers were never

ascertained.” The gist of his argument is that the ICA could not

have legitimately rendered its decision with such an incomplete

transcript of the Minor’s testimony and response to the oath, so

its disposition is based on assumptions and speculation. We

reject this argument.

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“[T]he general rule is that where the transcripts of a

defendant’s trial are incomplete because they omit portions of

the trial proceedings, such omissions do not mandate reversal

unless they specifically prejudice the defendant’s appeal.”

State v. Ganotisi, 79 Hawai#i 342, 343, 902 P.2d 977, 978 (App.

1995)(citations omitted). In Ganotisi, the ICA rejected an

appellant’s contention that 368 notations by the court reporter

of “no audible response,” “indiscernible words,” or

“indiscernible whisperings or conversation” for transcripts

covering a two-day trial (totaling 325 pages) prejudiced the

appellant’s right to a meaningful appeal and therefore violated

his due process rights. See id.9

Similarly, in this case, although no audible response was

recorded to the oath and to questions posed to the Minor during

the competency hearing and trial, the court, prosecutor, and

defense counsel frequently interpreted for the record the

gestures the Minor was making. No party objected to the

interpretations. It appears that what was captured for the

record at the trial level was understood by all. The transcript

of the Minor’s testimony was no less ascertainable by the ICA

than by this court. In any event, as noted earlier, not much, if

any, of the Minor’s testimony is reflected in the Findings of

9
The number of omissions in the transcript is not dispositive. The question
is whether omissions that render the transcripts incomplete prejudice the
defendant’s appeal. That determination must be made on a case-by-case basis.

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Fact, and there was otherwise substantial evidence to sustain

Kiese’s harassment conviction.

D. The family court erred in denying Kiese’s request
to stay his sentence.

Lastly, both the State and Kiese agree that the family court

erred in denying Kiese’s request to stay the execution of his

sentence pending appeal. Because we ultimately affirm Kiese’s

conviction, and since during the pendency of this appeal, Kiese’s

six-month probationary sentence has been satisfied, the

determination of whether the trial court erred in denying his

motion to stay his sentence pending appeal is now moot.

Appellate courts generally do not decide moot questions. See

Wong v. Bd. of Regents, 62 Haw. 391, 395, 616 P.2d 201, 204

(1980).

This court has, however, recognized three exceptions to the

mootness doctrine: matters capable of repetition yet evading

review,10 matters affecting the public interest, and matters

10
We first recognized the mootness exception for matters that are capable of
repetition yet evading review in Life of the Land v. Burns, 59 Haw. 244, 580
P.2d 405 (1978). In that case, we held:
The phrase, “capable of repetition, yet evading review,”
means that a court will not dismiss a case on the grounds of
mootness where a challenged governmental action would evade
full review because of [sic] the passage of time
would prevent any single plaintiff from remaining subject to
the restriction complained of for the period necessary to
complete the lawsuit.
59 Haw. at 251, 580 P.2d at 409-10 (citation omitted; emphasis added).
In this case, Kiese has not argued applicability of the capable of
repetition yet evading review exception to the mootness doctrine, and we do
not address its applicability to the facts of this case.

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posing collateral consequences11 for the defendant.12 Kiese

argues applicability of only the second exception; therefore, we

analyze only whether that exception applies.

1. The Public Interest Exception

This court recognized the public interest exception to the

mootness doctrine in Johnston v. Ing, 50 Haw. 379, 441 P.2d 138

(1968). In that case, we held:
There is a well settled exception to the rule that appellate
courts will not consider moot questions. When the question
involved affects the public interest, and it is likely in
the nature of things that similar questions arising in the
future would likewise become moot before a needed
authoritative determination by an appellate court can be
made, the exception is invoked.

50 Haw. at 381, 441 P.3d at 140. We look to “(1) the public or

private nature of the question presented, (2) the desirability of

11
This court recently recognized a third exception to the mootness
doctrine –- the collateral consequences exception –- in Hamilton v. Lethem,
119 Hawai#i 1, 193 P.3d 839 (2008). Collateral consequences include the legal
and reputational consequences of a judicial action otherwise unreviewable for
mootness.
To successfully invoke the collateral consequences exception:
[T]he litigant must show that there is a reasonable
possibility that prejudicial collateral consequences will
occur. Accordingly, the litigant must establish these
consequences by more than mere conjecture, but need not
demonstrate that these consequences are more probable than
not. This standard provides the necessary limitations on
justiciability underlying the mootness doctrine itself.
Where there is no direct practical relief available from the
reversal of the judgment, as in this case, the collateral
consequences doctrine acts as a surrogate, calling for a
determination whether a decision in the case can afford the
litigant some practical relief in the future.
119 Hawai#i at 8, 193 P.3d at 846, citing Putman v. Kennedy, 279 Conn. 162,
169, 900 A.2d 1256, 1262 (2006)(emphasis omitted).
In this case, Kiese has not argued applicability of the collateral
consequences exception to the mootness doctrine, and we do not address its
applicability to the facts of this case.

12
We note that the public interest exception to the mootness doctrine is
“separate and distinct” from the “capable of repetition, yet evading review”
exception. United Public Workers, AFSCME, Local 646, AFL-CIO v. Yogi, 101
Hawai#i 46, 59, 62 P.3d 189, 203 (2002) (Acoba, J., concurring).

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an authoritative determination for future guidance of public

officers, and (3) the likelihood of future recurrence of the

question.” Doe v. Doe, 116 Hawai#i 323, 327, 172 P.3d 1067, 1071

(2007) (citations omitted).

In this case, the appellate record refers to multiple cases

in which a stay has been denied to petty misdemeanants pending

appeal. As such, the first and third prongs of the public

interest exception test are met, in that the denial of a request

for a stay of sentence appears to be an issue that could

potentially affect many petty misdemeanor defendants (that is, it

is not an issue unique to Kiese as a private individual), and is

likely to recur in the future. As to the second prong, because

there is no definitive case law on when the issuance of a stay

after a petty misdemeanor conviction is appropriate, an

authoritative determination is desirable to guide trial courts.

As such, the denial of Kiese’s request for a stay meets the

public interest exception to the mootness doctrine.

Existing case law also supports the general application of

the public interest exception in the context of stays. See State

v. Cullen, 86 Hawai#i 1, 13, 946 P.2d 955, 967 (1997) (“Our

affirmance of [Appellant’s] conviction moots the prosecution’s

[challenge to the sentencing court’s application of HRS § 804-4].

However, this court has long recognized the exception to the

mootness doctrine that arises with respect to matters affecting

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the public interest.”) (citations omitted). Therefore, the ICA

erred in not addressing the merits of the stay issue based on the

mootness doctrine. Cf. State v. Durham, 125 Hawai#i 114, 126-27,

254 P.3d 425, 437-38 (2011) (concluding that the mootness

doctrine did not preclude this court from reviewing whether the

trial court erred in considering improper facts in revoking the

defendant’s probation, although the defendant had completed the

special probation condition of a one-year term of imprisonment).

2. The Merits of the Stay Issue

Proceeding to the merits of the issue, we conclude that the

family court erred by denying Kiese’s request for a stay.

Under HRAP Rule 8(c)(1984), “Stays in criminal cases shall

be had according to law.” HRS § 641-14(a)(1993) provides, “The

filing of a notice of appeal or the giving of oral notice in open

court at the time of sentence by the defendant or the defendant's

counsel of intention to take an appeal may operate as a stay of

execution and may suspend the operation of any sentence or order

of probation, in the discretion of the trial court.”

Although stays are discretionary under HRS § 641-14, HRS §

804-4(a) provides, “The right to bail shall continue after

conviction of a . . . petty misdemeanor[.]” See also HRS § 804-

4(b)(“No defendant entitled to bail, . . . shall be subject,

without the defendant’s written consent, to the operation of any

sentenced passed upon the defendant, while any proceedings to

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procure a review of any action of the trial court . . . are

pending and undetermined, except as provided in section 641-

14(a)[.]”). In State v. Ortiz, we held, “An accused

misdemeanant, petty misdemeanant, or law violator on bail is

entitled to bail as a matter of right after conviction and

pending appellate review.” 74 Haw. 343, 356, 845 P.2d 547, 553

(1993). Furthermore, pursuant to State v. Miller, 79 Hawai#i

194, 200-01, 900 P.2d 770, 776-77 (1995), once release on bail

pending appeal is secured, a trial court is without jurisdiction

under the sentence of probation that is the subject of the

defendant’s appeal.

Therefore, we hold that Kiese, as a petty misdemeanant on

bail after conviction, was entitled to a continuance of bail

pending appellate review, during which time the trial court was

without jurisdiction to execute his probationary sentence;

accordingly, the family court erred by denying Kiese a stay of

his petty misdemeanor sentence pending appeal.

III. CONCLUSION

We hold that the ICA erred in not addressing the stay of

sentence issue based on the mootness doctrine because the public

interest exception applies, and the family court erred in denying

Kiese’s motion to stay his sentence pending appeal. Although we

accepted certiorari to address the stay of sentence issue,

because Kiese has already served his probationary sentence, and

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because Kiese’s judgment of conviction is affirmed, we affirm the

ICA’s judgment on appeal.

Taryn R. Tomasa and /s/ Mark E. Recktenwald
Kirsha K. M. Durante,
Deputy Public Defenders, /s/ Paula A. Nakayama
for petitioner/defendant-
appellant. /s/ Simeon R. Acoba, Jr.

Stephen Tsushima, /s/ James E. Duffy, Jr.
Deputy Prosecuting Attorney,
for respondent/plaintiff- /s/ Sabrina S. McKenna
appellee.

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