State v. Browder

NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
20-OCT-2023
08:03 AM
Dkt. 94 MO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI‘I

STATE OF HAWAI‘I, Plaintiff-Appellee,
v.
ZETH BROWDER, Defendant-Appellant

APPEAL FROM THE CIRCUIT COURT OF THE THIRD CIRCUIT
(CASE NO. 3CPC-XX-XXXXXXX)

MEMORANDUM OPINION
(By: Hiraoka and Nakasone, JJ.,
with Leonard, Presiding Judge, concurring separately)

Defendant-Appellant Zeth Browder (Browder) appeals from
the March 29, 2022 Judgment of Conviction and Sentence, entered by
the Circuit Court of the Third Circuit (Circuit Court).1
Following a jury trial, Browder was found guilty of two counts of

1 The Honorable Robert D.S. Kim presided.
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first-degree sexual assault, two counts of third-degree sexual
assault, first-degree burglary, kidnapping, and tampering with
physical evidence.2 Browder was sentenced to thirty years of
imprisonment.3 He timely appealed.
On appeal,4 Browder contends that the Circuit Court
erred by: (1) transferring a motion to disqualify or recuse the
assigned trial judge to another judge to decide (Browder also
challenges the second judge's denial of the motion); (2)
violating the First Amendment to the U.S. Constitution and
Article I, Section 4 of the Hawai‘i Constitution by limiting
public access to the courtroom; (3) denying Browder's motion to
dismiss based on violations of his rights under Hawai‘i Rules of
Penal Procedure Rule 48 and his speedy trial rights; (4)
accepting Browder's evidentiary stipulations to admit certain
exhibits when the stipulations were not "knowingly,
intelligently and voluntarily executed"; (5) finding that there
was sufficient evidence adduced at trial to convict Browder of a
"supposed knife-point sexual assault"; and (6) giving Hawai‘i

Standard Jury Instructions Criminal (HAWJIC) 3.09, the
credibility of witnesses instruction. Browder also contends
that (7) his trial counsel was ineffective; and (8) the
prosecutor committed misconduct during closing argument based on

2 The underlying charges in the Indictment arose out of a June 15,
2019 incident in which the Complaining Witness (CW) alleged that Browder
broke into her camping tent and sexually assaulted her.
3 The Circuit Court ran the 10-year terms of imprisonment for the
first-degree burglary and kidnapping offenses, consecutive to the 20-year
terms of imprisonment for the first-degree sexual assault offenses and the
remaining offenses.

4 Browder's points of error (POEs) do not comply with Hawai‘i Rules
of Appellate Procedure Rule 28(b)(4), which requires the POEs be set forth in
"separately numbered paragraphs." (Emphasis added.) We have numbered the
POEs.

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State v. Hirata, 152 Hawai‘i 27, 520 P.3d, 225 (2022),5 by
arguing that (a) CW's testimony was "consistent with someone
who's been traumatized"; and (b) "As to Charge 1, we know that
on June 15, 2019 the defendant vaginally penetrated [CW] with
his penis."6
Browder's last point of error is dispositive. For the
reasons explained herein, we hold that the second challenged
remark constituted misconduct that was not harmless beyond a
reasonable doubt. We also conclude that there was sufficient
evidence adduced at trial to convict Browder of the sexual
assault offenses, and vacate and remand for a new trial.
I. BACKGROUND
On July 9, 2019, Browder was charged via Indictment
with two counts of first-degree sexual assault, two counts of
third-degree sexual assault,7 and one count each of first-degree
burglary, kidnapping, and tampering with physical evidence.
Trial Proceedings
Jury trial was held on November 30 through December 1,
2, 7, 8, 9, and 14, and 15, 2021, when the jury returned its
verdict.
Browder's defense presented in his opening statement
was that the sexual assault never happened. Browder's trial
counsel stated that the case involved "fictitious claims of

5 Browder was permitted to file his January 12, 2023 Supplemental
Brief to raise prosecutorial misconduct based on State v. Hirata. The
Plaintiff-Appellee State of Hawai‘i (State) also filed a Supplemental Brief on
January 23, 2023.
6 Browder specifically challenges the "we know" argument made in
reference to Count 1, first-degree sexual assault for vaginal penetration.
We also address a second similar "we know" argument that was made in
reference to Count 2, first-degree sexual assault for fellatio, immediately
following the initial "we know" argument.
7 Browder was initially charged with three counts of first-degree
sexual assault, but one count was struck by the State.

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sexual assault" by CW, a "rush to judgment" by the police, and
that the evidence would contradict CW's "alleged fictitious
assault" claim.
CW's testimony: CW, who was 80 years old at the time
of trial, testified that in June 2019 when she was 78 years old,
she visited the Big Island. CW camped for four nights in a tent
at Spencer's Beach Camp, located on the Kona side of the Big
Island (Camp) from Wednesday, June 12, 2019 to Sunday, June 16,
2019. Upon arrival, on June 12, 2019, a male "in his 20’s" that
CW had just met, whom she later identified as Browder, assisted
CW in bringing her items to her tent. That same day, CW also
met another individual, "Matthew," who was with Browder.
Throughout CW's time at the Camp, CW spoke with Browder multiple
times, drove Matthew and Browder to the store to grab ice, and
drove Browder to his grandmother's house.
On Friday, June 14th, additional campers arrived at
the Camp for the weekend. That Friday night, after falling
asleep alone in her tent, CW was suddenly awakened early
Saturday morning by "something on [her] back and a large bang .
. . and that it felt like a bear." CW described being sexually
assaulted and identified Browder as the suspect.8 The male told

8 CW identified Browder as the suspect as follows:

A. [(By CW)] Okay. And, um, as -- as that happened I
said -- then I realized that it wasn't a bear, but
I said, "What do you want?"

Q. [(By Prosecutor)] Now, did you know when you were
woken up what was on top of you?

A. Not at first, no.

Q. How was I guess whatever -- whatever [sic] was on
top of you, how was that positioned over you while you were
in your tent?

A. Totally covering my whole body.

(continued. . .)
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8(. . .continued)
Q. And you were face down on your stomach?

A. I was face down on my stomach. Yes.

Q. At some point, um, did you -- were you able to
figure out what was holding you down?

A. Yes.

Q. How did -- how were you able to make that
determination?

A. Because the person said -- he – the person pulled
my body up and arched my head back and was trying to put a
dark object, a dark hood over my head, but I don't know
what it was made of or anything. It was just dark, very
dark.

And that made me say or [sic] I couldn't able to
breathe. "I can't breathe. I can't breathe."

And the hands of that person came around my neck and
held it tight and said, "Put your hand over your eyes and
don't move. Don't move or I'm going to kill you. I'm going
to kill you." And then he said, "Keep it there."

Q. Now, [CW], did you recognize the voice that was
telling you to cover your eyes?

A. Yes.

Q. Did you recognize the voice that told you that
they would kill you?

A. Yes.

Q. Whose voice was that?

A. The defendant [(Browder)].

. . . .

A. . . . And so the only thing that came to my mind
is that I opened my fingers a little bit, and I saw that
his hair was on the body, his body and I said I thought it
was dark.

And then I -- my neck was arched back as the penis
was going in and out, and I opened the fingers and I saw a
little bit of his face. I don't know if I saw the whole
face or what, but it was the same face of [Browder] and it
was the voice. . . .

. . . .
(continued. . .)
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CW to put her hands over her eyes and to not move, or else she
would get killed. The male put his hands over CW's neck,
flipped CW over, and demanded that CW put her legs around him.
At this point, the male began "penetrating into [CW's] vaginal
area" with his penis and CW was "shaking." The male pushed CW's
head toward his body, began sucking on CW's breasts, told CW to
put her hands on his penis, and put his penis into CW's mouth.
CW began to feel "pain all over [her] body[,]" and "felt a sharp
object coming into [her] back[,]" but did not see the object.
CW's head was pushed into the bottom of the tent, which was on
top of small rocks, and her "face felt like it was being
smashed." CW could not remember if the male left after the
incident, but remembered that she "had to go to the bathroom"
due to "leakage" coming from her vaginal area.
After the incident, CW walked to the bathroom and
heard the male's voice asking if she was "'leaving.'" CW
responded that she was going to the bathroom, continued on to
the bathroom, and noticed that the leakage was "urine." After
using the bathroom, CW was afraid that the male would kill her,
and walked to her vehicle to call her friend in North Carolina.
CW could not drive because the gates at the Camp were closed,
and she did not call 911 because she was "too shaky." CW, on
the advice of her friend, walked toward other campers in an

8(. . .continued)
Q. When you walked to the bathroom was anybody else,
um, any other campers awake?

A. No.

Q. Did you hear anyone as you were walking to the
bathroom?

A. I heard [Browder]'s name. I heard [Browder]'s --
not name, [Browder]'s voice and he said, "Are you leaving?"

(Emphases added).
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attempt to get closer to other people. CW noticed that all the
other campers were sleeping, and she sat on a bench near the
other campers' tents. Browder approached CW at the bench and
asked if she wanted "'to talk'" and if she was "'going back to
[her] tent[,]'" to which she responded "'[n]o.'" Browder
eventually left and CW was "too shaky and frozen," and sat at
the bench until another camper woke up. CW told the camper that
she was "'raped'" and could not move due to fear, and the camper
called 911.
Officers Ayau's and Kailiuli's testimony: On June 15,
2019, Hawai‘i Police Department (HPD) officers Robert Ayau

(Officer Ayau) and Jonathan Kailiuli (Officer Kailiuli)
testified that they were dispatched to the Camp for a sexual
assault type case. Officer Ayau observed CW was "crying," "very
emotional[,]" and that she had "scratches" on her cheeks and
face. Officer Kailiuli interviewed CW and observed that CW was
"under some stress[,]" "distraught," "afraid[,]" and "shooken
[sic] up." Based on his interview with CW, Officer Kailiuli
identified the suspect as Browder, who had a tent within the
same area as CW. Officers Kailiuli and Ayau located Browder
sleeping on the "top of [a] picnic table" under his pop-up tent,
where they also located a "wooden object sharpened to a point."
Officer Kailiuli arrested Browder, informed him of CW's report,
and that he was under arrest for sexual assault. There were ten
to twelve campers in the area. Browder's tent was
"approximately 50 feet" from CW's tent.
Witness Demotta's testimony: Witness Michael Demotta
(Witness Demotta) testified that while at the Camp, she observed
CW, Browder, and another older male interacting. On June 14,
2019, Witness Demotta fell asleep at 10:00 p.m. and woke up at
approximately 4:30 a.m. the next day, used the bathroom, and

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observed CW sitting on the picnic table. Witness Demotta went
to the bathroom a second time and after exiting the bathroom, CW
"grabbed" her arm and told Witness Demotta about the incident.
CW was "shooken [sic] up" and "[l]ooked like she was crying[.]"
Witness Demotta called 911.
Detectives Acob's and Delaries's testimony: HPD
detectives Clarence Acob (Detective Acob) and Calvin Delaries
(Detective Delaries) were assigned to CW's case. Detective Acob
testified that on June 26, 2019, he interviewed CW at the Hilo
police station and that she began to "cry." CW identified
Browder from a photo lineup and "again she started to tear[.]"
Detective Delaries met CW at Kona Hospital on the date
of the incident, where he observed her crying and shaking.
Detective Delaries directed another detective to obtain
Browder's clothes while he was at the Kona police station.
Detective Delaries was informed that Browder did not want to
give his underwear. Detective Delaries checked the surveillance
system, where he observed Browder wearing a "black band
underneath the paper clothes" given to Browder to wear, after
Browder's shirt and shorts had been removed. Detective Delaries
saw Browder "pulling on something by his left hip[,]" holding
"something black in his hand[,]" shoving the "black material"
down the toilet, and flushing it. The surveillance footage was
not admitted into evidence because "there was some type of
technical issue" with retrieving it.
Nurse Davis's testimony: Misty Davis (Nurse Davis), a
registered nurse and a sexual assault nurse examiner who
examined CW on June 15, 2019, testified as an expert in the
"examination and treatment of patients of alleged sexual abuse."
Nurse Davis described CW as "tearful" and "shaky" during the

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examination. As part of the examination, Nurse Davis conducted
a physical9 and genital10 examination of CW.
To assist in her testimony regarding CW's physical
examination, Nurse Davis referred to the stipulated photographs
taken of CW during the examination. During the physical
examination, CW reported "generalized pain and tenderness" and
"pain to the back of her head and neck." Nurse Davis observed
"dried blood" above the lip. Abrasions11 were observed on the
"cheeks," "upper lip[,]" "bridge of her nose," "left eyebrow[,]"
"right shoulder," "right arm[,]" and "right knee." Abrasions
and blunt-force trauma were also observed on the "uvula[,]"12
"soft palate," and "hard palate[.]"13 Bruises14 were observed on

9 The physical examination consisted of a "head to toe" examination
with the documentation of "areas of injury" and "pain or tenderness,"
including the "taking [of] photographs."
10 The genital examination consisted of the observation of the
genital area and the taking of photographs, including the collection of swabs
from the genital area.
11 Nurse Davis defined an "abrasion" as the "breaking or scraping
away of the skin."
12 While referring to State's Exhibit 112, a photograph of the
interior of CW's mouth, Nurse Davis described the "uvula" as the "little
part" "hang[ing] down."
13 Referring again to Exhibit 112, Nurse Davis referred to "hard
palate" and "soft palate" as areas "inside the mouth." The record does not
reflect exactly how Nurse Davis used the photograph in Exhibit 112 to explain
these terms. We take judicial notice that "hard palate" is defined as "the
bony anterior part of the palate forming the roof of the mouth" Hard Palate,
Merriam-Webster, https://www.merriam-webster.com/dictionary/hard%20palate
(last visited Aug. 30, 2023). "Soft palate" is defined as "the fold at the
back of the hard palate that partially separates the mouth from the pharynx."
Soft palate, Merriam-Webster, https://www.merriam-webster.com/dictionary/
soft%20palate (last visited May 31, 2023). See HRE Rule 201(b) ("A
judicially noticed fact must be one not subject to reasonable dispute in that
it is either (1) generally known within the territorial jurisdiction of the
trial court, or (2) capable of accurate and ready determination by resort to
sources whose accuracy cannot reasonably be questioned.").
14 Nurse Davis defined "bruise" as "bleeding" "into the skin due to
an injury or blunt-force trauma[,]" which "can be in a variety of colors."

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the "lip," "left hip," "right thigh[,]" "right hand," and "right
shin." Petechiae-like15 spots were also observed on the breasts,
which could have been caused by "blunt-force trauma" or
"suction."
To assist in her testimony regarding CW's genital
examination, Nurse Davis referred to the stipulated diagram of
the female genitalia, Exhibit 156.16 Nurse Davis observed
"general redness" to the "labia majora."17 Redness, bruising,
and petechiae were observed on the "labia minora,"18
"introitus,"19 and "hymen."20 Petechiae was observed on the
"cervix."21 "[T]here was bruising and a tear to the posterior

15 Nurse Davis defined "petechiae" as "small red or purple spots
that are caused by bleeding into the skin."
16 The diagram in Exhibit 156 depicts female genitalia, with no
labeling of individual genital parts.
17 Nurse Davis defined "labia majora" as the "outer areas" of the
female genital, which are "speckled with . . . hair" on the diagram.
18 Referring to the diagram in Exhibit 156, Nurse Davis explained
that the "labia minora" was the "[i]nternal" area of the "labia majora."
19 Nurse Davis defined the "introitus" as the area "surrounding" the
"speckled pieces of hair" on the diagram in Exhibit 156. We take judicial
notice that "introitus" is defined as "the vaginal opening." Introitus,
Merriam-Webster, https://www.merriam-webster.com/medical/introitus; see HRE
Rule 201(b).
20 Referring to the diagram in Exhibit 156, Nurse Davis explained
that the "hymen" is the "surrounding" area of the hole that leads to the
"vagina."
21 Nurse Davis did not define or explain "cervix." "Cervix" is
defined as "the narrow outer end of the uterus." Cervix, Merriam-Webster,
https://www.merriam-webster.com/dictionary/cervix (last visited May 31,
2023); see HRE Rule 201(b).

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fourchette22 and the fossa navicularis[.]"23 (Footnote added.)
There was a tear on the fold between the labia majora and labia
minora. Nurse Davis collected the following from CW: "buccal
swabs";24 "oral swabs"; swabs from "both of her breasts[,]"
"external" and "internal" "vaginal area," "face," and "both of
her hands underneath her fingernails."
In conjunction with a search warrant, Nurse Davis
collected the following from Browder: "buccal swabs[,]" "penile
and scrotum swabs," swabs from his "upper arms" and "hands," a
hair sample, and "scrapings from underneath the fingernails on
both hands."
DNA Expert Yuen's testimony: Sebastian Yuen (Yuen),
an expert in serology and forensic DNA testing, testified that a
"serological test" was performed on the swabs obtained from CW's
breasts, mouth, external and internal vaginal area, and face.
The swabs obtained from CW's breasts did not contain a full DNA
profile; however, based on the partial profile obtained, Yuen
determined that the DNA profile contained a mixture of two
individuals, with male DNA present, and that Browder could not
be "excluded as a possible contributor" to the foreign DNA
profile. The swabs obtained from CW's face contained a DNA
profile of two individuals, with male DNA present, and Browder
"[was] excluded" as a possible contributor. The swabs obtained
from CW's mouth and external and internal vaginal area contained

22 Referring to the diagram in Exhibit 156, Nurse Davis explained
that the "fossa navicularis" is the "area of skin" at the bottom of the hole
leading to the vagina that "protrudes from the vagina to the outer
genitalia."
23 Referring to the diagram in Exhibit 156, Nurse Davis explained
that the "posterior fourchette" is the "very thin . . . piece of skin" that
"protect[s]" the "introitus."
24 Nurse Davis explained that "buccal swabs" are swabs that go
"inside the cheek."

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no male DNA or p30 protein, a protein found in semen. A
serological test was also performed on the penile and scrotum
swabs obtained from Browder. There was no presence of p30
protein present or human DNA on the swabs.
Defense case
Browder did not present any evidence and did not
testify.
Closing arguments, verdict, sentencing
During closing argument, the prosecutor made the
following argument pertinent to this appeal, and the remarks at
issue are underscored:
She's 80 years old. She was nervous, shaking on the
witness stand. She was emotional and crying. She was
scared. She told you she was scared that morning. She was
scared at the hospital. She was scared even a week and a
half later, and she was still scared in court. This is
consistent with someone who's been traumatized.

. . . .

So again, ladies and gentlemen, when we look back at
the credibility factors that Judge Kim instructed you on as
well as the evidence presented in this case, when we turn
to that question, "Is [CW] believable?" State submits the
answer is, "Yes." And because [CW] is believable let's look
to the elements that the State needs to prove.

As to Charge 1 we know that on June 15, 2019
[Browder] vaginally penetrated [CW] with his penis. That he
did so with strong compulsion; the threats of bodily
injury, the force of holding her down. State's proved the
second element. And [Browder] knew exactly what he was
doing when he did those things.

As to count Charge 2, that's the fellatio count. We
know [Browder] shoved his penis again and again into [CW]'s
mouth. He also did so with the same strong compulsion; the
threats to kill her, the threats to her life, as well as
holding her down and also [Browder] he [sic] knew what he
was doing.

(Emphases added).25 The prosecutor conceded that CW "couldn't
remember some things[,]" and that CW "admitted . . . that she

25 The defense did not object to these arguments.
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didn't remember" certain things. In conclusion, the prosecutor
urged the jury to "[h]old the defendant responsible for what he
did to [CW] and find him guilty as charged[,]" based on the
"evidence of the terrifying events that [CW] lived through in
her tent on June 15th, 2019."
In the defense's closing argument, Browder's trial
counsel circled back to repeat the defense theory presented in
opening statement, stating: "I told you the evidence would show
fictitious cries of sexual assault by [CW], a rush to judgment
by the Hawai‘i police investigating this case, and the wrongful
arrest of an innocent teenager and the evidence showed all of
this." The defense argued that the contradictory evidence
proved that the case involved "fictitious cries of rape, of
sexual assault by [CW]"; "[t]here was no investigation of the
alleged crime scene"; there was no "corroboration" of CW's story
from the evidence presented, such as the lack of DNA evidence;
and there was nothing "putting [] [Browder] in [CW]'s tent."
The jury found Browder guilty of all counts, and
following sentencing, Browder timely appealed.
II. STANDARD OF REVIEW
Prosecutorial Misconduct
"The term 'prosecutorial misconduct' is a legal term
of art that refers to any improper action committed by a
prosecutor, however harmless or unintentional." State v.
Maluia, 107 Hawai‘i 20, 25, 108 P.3d 974, 979 (2005).

Prosecutorial misconduct may be subject to plain error review
"[b]ecause prosecutorial misconduct impacts the fundamental
right to a fair trial . . . ." Hirata, 152 Hawai‘i at 31,
520 P.3d at 229 (citing State v. Riveira, 149 Hawai‘i 427,

431 n.10, 494 P.3d 1160, 1164 n.10 (2021)). Thus,

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[o]nce the defense establishes misconduct — objection or no
objection — appellate review is the same: "After
considering the nature of the prosecuting attorney's
conduct, promptness or lack of a curative instruction, and
strength or weakness of the evidence against the defendant,
a reviewing court will vacate a conviction if there is a
reasonable possibility that the conduct might have affected
the trial's outcome."

Id. (quoting Riveira, 149 Hawai‘i at 431, 494 P.3d at 1164).
Sufficiency of Evidence
When reviewing sufficiency of evidence on appeal,
"[e]vidence adduced in the trial court must be considered in the
strongest light for the prosecution . . . ." State v. Kalaola,
124 Hawai‘i 43, 49, 237 P.3d 1109, 1115 (2010) (quoting State v.
Richie, 88 Hawai‘i 19, 33, 960 P.2d 1227, 1241 (1998)).

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. "'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."

Id. (quoting Richie, 88 Hawai‘i at 33, 960 P.2d at 1241).

III. DISCUSSION
A. The prosecutorial misconduct in closing
argument was not harmless beyond a reasonable
doubt.
Citing Hirata, Browder argues that the following
remarks constituted misconduct: (1) that CW's testimony was
"consistent with someone who's been traumatized"; and (2) "As to
Charge 1, we know that on June 15, 2019 the defendant vaginally
penetrated [CW] with his penis." (Emphasis added.) We also
address the second "we know" argument immediately following the
first one: "As to count Charge 2, that's the fellatio count.
We know the defendant shoved his penis again and again into
[CW]'s mouth." (Emphasis added.) The full context of the
remarks is as follows:

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THE COURT: . . . Madam Prosecutor, you may commence
when you're ready.

[PROSECUTOR]: Thank you, Your Honor.

"Do what I say or I'm gonna kill you." "You have to
want me." "I'm bigger. I can kill you with this rock." This
is what [Browder] told [CW] in the early morning hours of
June 15th, 2019.

Now, ladies and gentlemen, over the course of last
week you heard from a number of witnesses and you saw a
number of photographs, but ultimately this case comes to
one question. Is [CW] believable?

Now, Judge Kim just read you a number of jury
instructions, and on page 9 you'll find a number of
credibility factors that you can use to determine the
credibility of witnesses.

I'm not gonna [sic] reread everything again for you,
but when you look at some of them like her demeanor, her
candor, her lack of motive and is [sic] what she says makes
sense, then the State submits that, yes, the answer to this
question is that [CW] is believable. And because [CW] is
believable as stated on page 11 of your jury instructions,
the testimony of even a single witness if believed is
sufficient to prove a fact.

So now let's look a little bit closer at the
credibility factors and the evidence that you heard over
the last week.

So looking at [CW]'s appearance, demeanor, manner of
testifying you saw her and you got to meet her over the
course of two days of questioning.

She's 80 years old. She was nervous, shaking on the
witness stand. She was emotional and crying. She was
scared. She told you she was scared that morning. She was
scared at the hospital. She was scared even a week and a
half later, and she was still scared in court. This is
consistent with someone who's been traumatized.

To the next factor, the extent to which [CW] is
supported or contradicted by other witnesses.

First we have the initial HPD officers, and they told
you when they met [CW] a few hours after the vicious attack
she was still emotional, crying, injured but was able to
give a disclosure to them of how she had been violated and
hurt in her tent.

They found [Browder] in his tent, informed him of
[CW]'s report and then subsequently arrested him.

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You also heard from Michael Demotta, the first person
who saw [CW] after the attack, and she told you that [CW]
gripped onto her arms. She was shaking, crying and most
importantly she was now injured which was different from
how she had looked the day before when [Demotta] saw her.

[Demotta] helped her call 911, and [Demotta] also
helped her go to the bathroom because she was still shooken
[sic] up.

Then you heard from Detective Acob. A week and a half
-- about a week and a half after the incident he met with
[CW], and he told you how she was still emotional and
crying when she had to describe the sex acts that [Browder]
forced upon her. And when he showed her that photo lineup
with [Browder]'s picture in it she again became emotional
and looked away.

Then you heard from Detective Delaries who met [CW] a
few hours after the incident at the Kona Hospital, and
again she was emotional. She was shaky, crying.

But Detective Delaries also told us about what he saw
with -- later that day when he went to try and get
[Browder]'s underwear. He told you what he saw on the
surveillance.

He told you that he had instructed another detective
to obtain [Browder]'s underwear but that didn't happen.
Instead we have a hole in the [Browder]'s paper jump --
paper pants, and we see [Browder] shoving his hand,
according to Detective Delaries, down the toilet and
flushing multiple times.

Then you heard from Nurse Davis who documented the
injuries to [CW]; the face injuries, the injuries on her
hand, her legs, her -- her breasts, the inside of her
mouth, and then her vaginal injuries, the bruising, the
petechiae and the tear.

Then you also heard about that Nurse Davis said the -
- her injuries and what she documented in her examination
were consistent with [CW]'s patient history.

She also told us about how [CW] in those hours in
between the attack and from the time she got to the
hospital to get examined she had used the bathroom multiple
times. She had -- she had eaten cough drops, drank water.

And then finally you heard from Sebastian Yuen, the
DNA analyst who testified that the DNA on [CW]'s breast was
a mixture of two people. One was [CW] and [Browder]
couldn't be excluded, and over a million other people,
unrelated other people would have to be tested in order to
get that same result.

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He also told you that, yes, there was no male DNA on
the oral swabs or the vaginal swabs obtained from [CW], but
he told you how foreign DNA can be removed and he said --
he gave examples of showering, of swimming. That water has
an impact.

[CW] testified that multiple times after the incident
not only was she urinating on herself in her tent but she
used the bathroom multiple times, wiped herself and that's
why there's no male DNA. The witnesses support [CW]'s
testimony.

Now, turning to [CW]'s candor or frankness. Ladies
and gentlemen, she admitted to the things that she did.

She admitted she helped [Browder]. She admitted she
complied with his demands in that tent to survive, and she
also admitted that she made some mistakes in her statements
initially to the police. She told you that she had mistaken
the arm. That she couldn't remember some things. She also
admitted the things that she didn't do. She didn't scream.
She didn't try to run away, and right after she couldn't
call 911 and she told you all why. Because she was fighting
to survive. She believed [Browder] was going to kill her.

She also admitted to you the things that she didn't
remember. Under a long cross-examination by defense counsel
she admitted that, yes, she didn't remember certain things
she had told some of the initial officers or Detective Acob
and that it was because she was in shock, and she couldn't
remember word by word exactly what she told multiple people
about this attack that she had just endured.

But she did tell you exactly what [Browder] did to
her. She has been consistent that he entered her tent while
she was sleeping, came on top of her, threatened to kill
her, told her to cover her eyes, vaginally and orally
penetrated her, sucked on her breasts, made her touch his
penis with her hand and then jammed a sharp object into her
back as he smashed her face down to the bottom of the tent.
[CW] has hid nothing from you.

Now, let's now look to the probability or
improbability of [CW]'s testimony.

[CW] was alone. She went camping by herself. On the
night of June 14th, 2019 she was sleeping. She told you she
went to bed about 7:30 that night. [CW] was an easy target,
and [Browder] had his opportunity.

So after all the other campers went to sleep at about
2:30 on June 15, 2019 he entered her tent, and once he was
inside that tent he held her down, covered her eyes, told
her, "I'll kill you," then vaginally penetrated her.

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And then when that didn't work and he wasn't
satisfied enough told her that, "You have to want this. You
have to help me."

Then he sucked on her breast, told her to touch his
penis before he shoved it into her mouth again and again,
and then before he was gonna [sic] leave put that sharp
object into her back, threatened to kill her again and told
her to lay her head down on the pillow.

What happened to [CW] and what she told you happened
to her on June 15th, 2019 makes sense.

Now, let's look at [CW]'s interest if any in the
result of this case.

She has nothing to gain. You saw her. She was
terrified and scared to even testify and be here today or
be in court with us last week.

Her temper, feeling or bias towards [Browder].

Prior to June 12th, 2019 they were complete
strangers, but [CW] told you that she tried to help
[Browder] because she felt bad for him because he told her
he had no one. [CW] has no reason to lie.

So again, ladies and gentlemen, when we look back at
the credibility factors that Judge Kim instructed you on as
well as the evidence presented in this case, when we turn
to that question, "Is [CW] believable?" State submits the
answer is, "Yes." And because [CW] is believable let's look
to the elements that the State needs to prove.

As to Charge 1 we know that on June 15, 2019 the
defendant vaginally penetrated [CW] with his penis. That he
did so with strong compulsion; the threats of bodily
injury, the force of holding her down. State’s proved the
second element. And [Browder] knew exactly what he was
doing when he did those things.

As to count Charge 2, that’s the fellatio count. We
know the defendant shoved his penis again and again into
[CW]’s mouth. He also did so with the same strong
compulsion; the threats to kill her, the threats to her
life, as well as holding her down and also the defendant he
knew what he was doing.

(Emphases added.) While the transcript reflects that no
objections were made, plain error review applies to remarks that
constitute misconduct. See Hirata, 152 Hawai‘i at 30-31,
520 P.3d at 228-29.

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1. Under the circumstances of this case, the
consistent-with-someone-who's-been-
traumatized remark did not constitute
misconduct.
Browder argues, pursuant to Hirata, that the
prosecutor "improperly expressed her personal belief about the
CW's credibility and injected new evidence by explaining to the
jury that the CW's testimony was consistent with one who is
traumatized." In response, the State argues that under the
general definition of "trauma,"26 the prosecutor's remark was
supported by the evidence of CW's own testimony regarding the
effects of the alleged sexual assault when reporting the
incident to others, and those witnesses' testimonies describing
CW's emotional condition soon after the alleged incident.27
Hirata involved the prosecution of the offense of
"continuous sexual assault of a minor under the age of fourteen
years." 152 Hawai‘i at 28, 520 P.3d at 226. The minor
complainant (Minor), Minor's parents, a police officer, a
detective who interviewed Minor, a doctor who examined Minor, an

26 The State cited general dictionary definitions of "traumatized"
or "trauma," which state: "'a startling experience which has a lasting
effect on mental life; a shock.'" See State's Supplemental Answering Brief
at 7 (quoting Trauma, The Random House Dictionary of the English Language,
1507 (The Unabridged Edition 1973)).
27 In its Supplemental Answering Brief, the State pointed to Officer
Ayau's testimony that CW was sad, crying, and scared; Officer Kailiuli's
testimony that CW was "distraught[,]" under "stress[,]" "shooken [sic] up[,]"
and "a little afraid"; Detective Acob's testimony that CW turned away from
Browder's photo and "started to tear"; Nurse Davis's testimony that CW was
"very tearful and very shaky" during the examination; Detective Delaries's
testimony that CW would "cry[,]" "shake[,]" and her "lips would quiver"
during her report "less than 24 hours" after the incident. The State also
noted how CW explained inconsistencies between her trial testimony and her
statements to the officers and Nurse Davis, that she was "in shock"; had been
"fearing for [her] life" because she felt that she "was going to be killed";
and that at that point, CW "did not have much strength to . . . say
everything exactly the right or the correct way . . . ." The State further
related that CW testified that she understood her oath "[t]o tell the truth";
that she was "trying to get the words out correctly"; and she still felt "a
lot scared [sic] and just very shaky."
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expert in the dynamics of child sexual abuse (child sexual abuse
expert), the defendant, the defendant's parents, and the
defendant's girlfriend testified at trial. Id. at 29, 520 P.3d
at 227. Minor's mother testified that the Minor was "hesitant
and scared" when telling her parents about the alleged sexual
assault. Id. at 37, 520 P.3d at 235 (Nakayama, J., dissenting).
Minor testified that she was "scared" to tell the defendant that
she did not like what the defendant was doing to her, and Minor
was "scared" that the defendant would hurt her if she told
someone. Id. at 38, 520 P.3d at 236 (Nakayama, J., dissenting).
The child sexual abuse expert testified regarding "common memory
problems observed in children who have experienced something
'traumatic[,]'" and how children often cannot recall surrounding
details of shocking or traumatic events. Id. at 39, 520 P.3d at
237 (Nakayama, J., dissenting). The child sexual abuse expert's
explanation of dynamics of child sexual abuse included "delayed
disclosure" and "tunnel memory," but did not include "evidence
about post-abuse 'trauma' or how traumatized children act or
testify in court." Id. at 33 n.14, 520 P.3d at 231 n.14. In
closing argument, the prosecutor in Hirata argued:
So let's go through the factors of [Minor]'s
credibility. Her appearance, demeanor, her manner of
testifying. She came here last week. You saw her. She's 11
years old. She was nervous and understandably so. And she
tried to be brave up there on the stand. She answered all
of my questions. She answered all of the defense attorney's
questions. Almost three hours up there.

And then at the end of almost those three hours, she
couldn't be brave anymore, and you saw her when she got
emotional. She broke when the defense attorney continued to
call – to question her credibility and if she was making
this up, and her answer to you was this really happened.
It's consistent with a child who is traumatized.

Id. at 29, 520 P.3d at 227 (emphasis added).
In a 3-2 decision, the Hawai‘i Supreme Court vacated
the defendant's conviction because, inter alia, it found the

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consistent-with-a-child-who-is-traumatized remark was serious
prosecutorial misconduct:
The DPA improperly expressed her personal belief about CW's
credibility and injected new evidence by explaining to the
jury that CW's testimony is "consistent with a child who is
traumatized." Her unsupported comment invited the jury to
infer that she had undisclosed information about CW's
mental health, information that could corroborate a trauma-
inducing event like the charged crime. We hold that the
DPA's remarks constituted serious prosecutorial misconduct.

Id. at 33, 35-36, 520 P.3d at 231, 233-34.28
a. The "traumatized" remark referred to and
was supported by the evidence, and was
not an improper expression of personal
belief.
Browder's contention that the remark was without
evidentiary support, as in Hirata, and thus constituted an
improper expression of the prosecutor's personal belief, lacks
merit under the circumstances of this case.
"A statement about a witness's credibility that is
made without reference to the evidence or facts supporting the
assertion amounts to an expression of personal opinion." State
v. Salavea, 147 Hawai‘i 564, 582, 465 P.3d 1011, 1029 (2020). In
Hirata, the prosecutor's argument that CW's testimony was
consistent with a traumatized child was based on the
prosecutor's own evaluation and opinion of CW's breakdown and
reaction being cross-examined, which the majority said was
"unsupported" by any evidence.
Here, the prosecutor's argument that CW's testimony
was consistent with a traumatized person was not based on the
prosecutor's own evaluation and opinion of CW's reaction to

28 At the time of closing arguments on December 14, 2021, in
Browder's jury trial, this court had issued a November 12, 2021 Summary
Disposition Order affirming Hirata's conviction. State v. Hirata, No.
CAAP-XX-XXXXXXX, 2021 WL 5273934, at *1 (App. Nov. 12, 2021) (SDO).
Certiorari review was granted on March 23, 2022, and the Hawai‘i Supreme
Court's opinion was issued on October 31, 2022.

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being cross-examined, as in Hirata, but was supported by
"reference to the evidence or facts supporting the assertion[.]"
See Salavea, 147 Hawai‘i at 582, 465 P.3d at 1029. Prior to the
remark, the prosecutor referenced evidence relating to CW's
"appearance," "demeanor," and "manner of testifying" -- all
credibility factors under the HAWJIC 3.09 credibility of witness
instruction. Leading up to the challenged remark, the
prosecutor pointed out that CW was "nervous," "shaking[,]"
"emotional and crying[,]" and "scared" while testifying; "scared
that morning" of the alleged incident; "scared at the hospital";
and "was scared even a week and a half later[.]" These
evidentiary references supported the prosecutor's immediately
following assertion that CW's appearance, demeanor, and manner
of testifying was consistent with someone who was
"traumatized."29
"[I]t is well-established that prosecutors are
afforded wide latitude in closing to discuss the evidence, and
may 'state, discuss, and comment on the evidence as well as to
draw all reasonable inferences from the evidence.'" State v.
Udo, 145 Hawai‘i 519, 536-37, 454 P.3d 460, 477-78 (2019)
(citation omitted). Browder's defense presented in opening
statement and in closing argument was that CW's claim of sexual
assault was "fictitious." It was a reasonable inference that
the fear CW manifested in her in-court testimony, as well as at

29 "Traumatized" is defined as being "affected by physical or
emotional trauma" or as "severely shocked and upset in a way that causes
lasting emotional pain." Traumatized, Merriam-Webster,
https://www.merriamwebster.com/dictionary/traumatized (last visited Oct. 6,
2023); Traumatized, Cambridge Dictionary, https://dictionary.cambridge.org/
us/dictionary/english/traumatized (last visited Oct. 6, 2023). "Trauma" is
defined as "a disordered psychic or behavioral state resulting from severe
mental or emotional stress or physical injury," or "an emotional upset."
Trauma, Merriam-Webster, https://www.merriam-webster.com/dictionary/trauma
(last visited Oct. 6, 2023).

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the time of the incident and immediately thereafter, tended to
support the credibility of CW's claim that she had been sexually
assaulted. See id. The prosecutor's remark was not an improper
personal belief about CW's credibility untethered to evidence
supporting the assertion; and it was within the wide latitude
permitted in closing argument. See id.; Salavea, 147 Hawai‘i at
582, 465 P.3d at 1029.
b. The "traumatized" remark did not inject
new evidence or create an inference that
the prosecution had undisclosed
information about CW's mental health.
Browder argues that, as in Hirata, there was no
evidence adduced here that could "'legitimately support'" the
prosecutor's claim that CW testified consistent with a
traumatized person, because no witness testified about CW's
mental health or psychological condition. Browder claims this
remark "invited the jury to infer that the prosecution had
undisclosed information about CW's mental health[.]"
In Hirata, a child sexual abuse expert had testified
regarding the specific dynamics unique to children subjected to
sexual assault -- the effects of a sexual assault on a child's
memory, their ability to recall, and the timing of a child's
disclosure. See 152 Hawai‘i at 42, 520 P.3d at 240 (Nakayama,
J., dissenting). Within this context, where the jury in Hirata
had "heard no evidence that could legitimately support the
prosecutor's claim that the [Minor] testified consistent with a
traumatized child"; where the child sexual abuse expert had
supplied "no evidence about post-abuse 'trauma' or how
traumatized children act or testify in court"; and where "[n]o
witness testified about [Minor]’s mental health or psychological
condition"; — — the prosecutor's remark "exceed[ed] fair
commentary on the evidence." Id. at 33, 33 n.14, 520 P.3d at
231, 231 n.14. The Hirata majority explained that the
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prosecutor "effectively hinted she knew something the jury
didn't know: [Minor] presently suffers trauma, and [Minor]'s
demeanor and testimony match the way victims of child sexual
abuse testify." Id. (emphasis added). Thus, the remark
"injected new evidence" and inferred to the jury that the
prosecutor "had undisclosed information about [Minor]'s mental
health, information that could corroborate a trauma-inducing
event like the charged crime." Id. at 33, 520 P.3d at 231.
Here, in contrast to the lack of evidence that "could
legitimately support the prosecutor's claim that the [Minor]
testified consistent with a traumatized child" in Hirata, the
jury in this case did hear evidence that could "legitimately
support" the prosecutor's assertion that CW's demeanor was
consistent with someone who had experienced a traumatic,
shocking, startling, or emotionally upsetting event. Id.; see
Traumatized, supra; Trauma, supra. The prosecutor's references
to CW's manner of testifying and consistent pattern of fear at
the time of the incident and immediately thereafter, were
supported by the record in this case, by CW's own testimony, and
corroborated by other witnesses.30 Unlike Hirata, this case did
not involve the unique "way victims of child sexual abuse
testify" or involve a particular dynamic for which specialized
expertise to explain a witness's compromised ability to recall,
report, and relate, is required. Id.
We conclude that the prosecutor's remark did not
inject new evidence or create an inference that the prosecutor

30 Witness Demotta testified that CW appeared to be "crying" and
"shooken [sic] up." Officers Ayau and Kailiuli testified that when they
arrived at the Camp, CW appeared "scared" and "afraid." Detective Delaries
testified that when he met CW at the hospital, CW would "cry," "shake," and
her "lips would quiver." Nurse Davis testified that during the examination,
CW was "tearful and very shaky[.]" During an interview with Detective Acob
about a week and a half after the alleged incident, Detective Acob testified
that CW appeared to be "sad[,]" crying, and that she began to "tear" when she
identified Browder's photo from a photograph lineup.
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had undisclosed information about CW's mental health, and the
remark did not constitute misconduct. See Hirata, 152 Hawai‘i at
33, 520 P.3d at 233; Salavea, 147 Hawai‘i at 582, 465 P.3d at
1029.
2. Under the circumstances of this case, the
"we know" remarks constituted misconduct
that was not harmless beyond a reasonable
doubt.
Citing Hirata, Browder argues that the prosecutor
"improperly expressed her personal belief about the strength of
the State's case" when using the words "we know" in closing
argument. We hold that the two "we know" remarks constituted
improper expressions of the prosecutor's opinion on the strength
of the evidence.
A prosecuting attorney has a duty to seek justice, to
play fair and square. A prosecuting attorney's words have
an outsized influence on a jury. For this reason, this
court has often directed prosecutors to not express
personal beliefs about the evidence. See, e.g., State v.
Marsh, 68 Haw. 659, 660, 728 P.2d 1301, 1302 (1986)
(stating that prosecutors must "refrain from expressing
their personal views as to a defendant's guilt or
credibility of witnesses").

Hirata, 152 Hawai‘i at 33, 520 P.3d at 231. "[E]xpressions of
personal opinion by the prosecutor are a form of unsworn,
unchecked testimony and tend to exploit the influence of the
prosecutor's office and undermine the objective detachment that
should separate an attorney from the cause being argued." Id.
(quoting Salavea, 147 Hawai‘i at 582, 465 P.3d at 1029). A
prosecutor's use of the pronoun "we" during closing argument
constitutes misconduct because of the "implication of unity, and
the suggestion of an alliance between the State and the jury"
against the defendant, which is improper. State v. Conroy,

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148 Hawai‘i 194, 202-03, 468 P.3d 208, 216-17 (2020).31 The
Conroy court explained that:
The prosecutor's use of the inclusive pronoun, "we,"
implied that the jury and the State had similar interests
and were working together in convicting [the defendant] to
provide CW justice. This implication of unity, and the
suggestion of an alliance between the State and the jury
against [the defendant], was improper:

In light of the "prestige associated with the
prosecutor's office" and the "significant persuasive force"
the prosecutor's argument is likely to have on the jury,
this court has repeatedly recognized that the prosecutor
"has a duty to seek justice, to exercise the highest good
faith in the interest of the public and to avoid even the

31 In Conroy, the supreme court held that "the prosecutor committed
misconduct at least eight times," one of which included the prosecutor's use
of the pronoun, "we." The eight statements found improper were as follows:

First, the prosecutor asserted that [the defendant] "was
going to make sure that CW didn't give that smile to any
other man, and she won't. She can't."

Second, the prosecutor told the jury "we should teach her a
new lesson. I say we teach her that there is justice in the
world. I say we teach her that there can be justice in
this...."

Third, the prosecutor told the jury they were to find [the
defendant] guilty to "put the smile back in her eyes."

Fourth, the prosecutor asked the jury to consider that [the
defendant] "broke something inside of CW."

Fifth, the prosecutor noted the jury's purpose was to heal
CW's spirit: "We all want CW's spirit to heal even if her
face won't. But in order for that to happen, there has to
be justice done."

Sixth, the prosecutor repeated his admonition to the jury —
previously ruled improper by the trial court - that its
purpose was to provide justice to CW in order to heal her:
"We all want CW's spirit to heal even if her face won't.
But in order for that to happen, there has to be justice
done."

Seventh, the prosecutor asserted that "You break my heart,
I break your face. That's what this case is about."

And eighth, the prosecutor injected personal knowledge
about the pain caused by a kick to the groin.

148 Hawai‘i at 201-02, 468 P.3d at 215-16 (ellipses in original)
(emphases and brackets omitted) (emphases added).
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appearance of unfair advantage over the accused." State v.
Basham, 132 Hawai‘i 97, 116, 319 P.3d 1105, 1124 (2014).

Id. (emphases added).
Here, the prosecutor improperly used the term "we" by
arguing to the jury, "we know that . . . the defendant vaginally
penetrated" CW in Count 1, and that "[w]e know the defendant
shoved his penis again and again into [CW]'s mouth" in Count 2.
These arguments conveyed an improper "implication of unity"
between the State and the jury against Browder, and gave an
"appearance of unfair advantage over the accused." Conroy,
148 Hawai‘i at 202-03, 468 P.3d at 216-17.
We now consider whether the "we know" misconduct was
harmless beyond a reasonable doubt. "After considering the
nature of the prosecuting attorney's conduct, promptness or lack
of a curative instruction, and strength or weakness of the
evidence against the defendant, a reviewing court will vacate a
conviction if there is a reasonable possibility that the conduct
might have affected the trial's outcome." Riveira, 149 Hawai‘i
at 431, 494 P.3d at 1164 (citation omitted).
Regarding the first factor, the nature of the
misconduct, the multiple uses of the pronoun "we" were improper
expressions of the prosecutor's personal opinion that both the
State and the jury "kn[e]w" that vaginal penetration in Count 1,
and fellatio in Count 2, had been committed by Browder. The
remarks improperly suggested an alliance between the State and
the jury to convict Browder of the two most serious charges
against him of first-degree sexual assault. This factor weighs
in favor of Browder.
Regarding the second factor, the "promptness or lack
of a curative instruction," we need not consider it where no

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objection was made or curative instruction given. See Hirata,
152 Hawai‘i at 34, 520 P.3d at 232.

Regarding the third factor, the strength or weakness
of the evidence against the defendant, "when a conviction is
largely dependent on a jury's determination as to the
credibility of a complainant's testimony, the evidence of the
offense is not so overwhelming that it renders the prosecutor's
improper statements harmless beyond a reasonable doubt." State
v. Williams, 149 Hawai‘i 381, 396, 491 P.3d 592, 607 (2021)
(internal brackets and citation omitted); accord Hirata,
152 Hawai‘i at 35, 520 P.3d at 233 ("In cases reliant on the
jury's credibility findings, misconduct attacking a defendant's
credibility or bolstering a complainant's (or critical
witness's) credibility is seldom harmless beyond a reasonable
doubt." (citation omitted)).
Here, the State's case turned on the jury's assessment
of CW's credibility, as the only persons present during the
incident were CW, and the perpetrator, whom CW identified as
Browder. While there was evidence of physical injuries
consistent with sexual assault, there were no eyewitnesses
besides CW, and the DNA evidence was equivocal. No physical or
forensic evidence indicated that Browder had been in CW's tent.
There was not overwhelming evidence of identification, and the
State's case establishing Browder as the perpetrator was
entirely dependent on CW's testimony. Thus, the state of the
evidence was not "so overwhelming" that it rendered the
prosecutor's misconduct harmless beyond a reasonable doubt.
See Williams, 149 Hawai‘i at 396, 491 P.3d at 607. This factor
weighs in favor of Browder.
On this record, we conclude that there was a
"reasonable possibility" that the misconduct might have

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contributed to Browder's convictions in this case and was not
harmless beyond a reasonable doubt. See Hirata, 152 Hawai‘i at
35, 520 P.3d at 233; see also Williams, 149 Hawai‘i at 397,

491 P.3d at 608 (holding in a sexual assault prosecution that
prosecutorial misconduct during closing argument was not
harmless because the CW was "the only witness other than the
defendant who could describe the actual acts constituting the
offenses[,]" and the "evidence against [the defendant] was not
so overwhelming that it rendered the prosecutor's misconduct
. . . harmless"); State v. Prescott, No. CAAP-XX-XXXXXXX,
2022 WL 622335, at *10 (Mar. 3, 2022) (SDO) (holding in a sexual
assault prosecution that prosecutorial misconduct during closing
argument was not harmless, where CW "was the only witness who
testified about the alleged act").
B. There was sufficient evidence adduced at trial
to convict Browder of the sexual assault
offenses.

"It is well-settled that, even where this court finds
trial error, challenges to the sufficiency of the evidence must
always be decided on appeal." Kalaola, 124 Hawai‘i at 59,

237 P.3d at 1125 (cleaned up). "Trial error[s]" include
prosecutorial misconduct. Id. at 52, 237 P.3d at 1118 (citing
Burks v. United States, 437 U.S. 1, 14–15 & n.8 (1978)). We
thus address Browder's challenge to the sufficiency of evidence
to support the sexual assault offenses. Browder argues that
there was insufficient evidence adduced at trial to convict
Browder of sexual assault because there was no DNA profile
recovered from the swabs obtained from CW or from the crime
scene that matched Browder's DNA profile. Viewing the evidence
"in the strongest light for the prosecution[,]" see id. at 49,
237 P.3d at 1115, Browder's contention is without merit.

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Here, Browder was charged with two counts of Sexual
Assault in the First Degree for "sexual penetration by strong
compulsion" for "vaginal penetration with his penis" and
"fellatio" in violation of HRS § 707-730(1)(a).32 Browder was
also charged with two counts of Sexual Assault in the Third
Degree for engaging in sexual contact with CW by putting his
"mouth on her breast" and "her hand on his penis" in violation
of HRS § 707-732(1)(f).33 At trial, CW testified that on
June 15, 2019, she was asleep in her camping tent when she was
awakened, held against her will, and sexually assaulted. CW
identified the perpetrator as Browder, and that Browder
penetrated her "vaginal area" with his penis, sucked on her
breasts, told her to put her hands onto his penis, and stuck his
penis into her mouth. "[T]he testimony of merely one percipient
witness constitute[s] substantial evidence to support a
conviction . . . ." State v. Eastman, 81 Hawai‘i 131, 141,
913 P.2d 57, 67 (1996) (citation omitted). Viewed in the
strongest light for the prosecution, we conclude there was
substantial evidence to support the jury's verdict convicting
Browder of the sexual assault offenses. See Kalaola, 124 Hawai‘i
at 49, 237 P.3d at 1115.
In light of our resolution, we do not address
Browder's remaining contentions.

32 Under HRS § 707-730(1)(a) (2014), a person commits the offense of
sexual assault in the first degree if the person "knowingly subjects another
person to an act of sexual penetration by strong compulsion[.]"
33 Under HRS § 707-732(1)(f) (2014), a person commits the offense of
sexual assault in the third degree if the person "knowingly, by strong
compulsion, has sexual contact with another person[.]"

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IV. CONCLUSION
For the foregoing reasons, the March 29, 2022 Judgment
of Conviction and Sentence, entered by the Circuit Court of the
Third Circuit, is vacated, and we remand for a new trial.
DATED: Honolulu, Hawai‘i, October 20, 2023.
On the briefs:

Walter J. Rodby,
/s/ Keith K. Hiraoka
for Defendant-Appellant.
Associate Judge
Donn Fudo,
/s/ Karen T. Nakasone
Deputy Prosecuting Attorney
Associate Judge
for Plaintiff-Appellee.

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CONCURRING OPINION BY LEONARD, J.

I concur with the majority's conclusion that the

conviction of Defendant-Appellant Zeth Browder (Browder) must be

vacated based upon prosecutorial misconduct in conjunction with

the prosecutor's closing argument.

I agree with the majority's analysis and conclusion

that the prosecutor's statements that "we know that on June 15,

2019 [Browder] vaginally penetrated [CW] with his penis" and

"[w]e know the defendant shoved his penis again and again into

[CW's] mouth" constituted misconduct. (Emphasis added). I also

agree with the analysis and conclusion that the prosecutor's

misconduct was not harmless beyond a reasonable doubt.

However, I further conclude that State v. Hirata, 152

Hawai#i 27, 520 P.3d 225 (2022), is indistinguishable from this

case with respect to the prosecutor's statement to the jury that

the complaining witness's (CW's) appearance, demeanor, and manner

of testifying was consistent with someone who's been traumatized.

In both Hirata and this case, the defendant faced

sexual assault charges. In both cases, the defendant's theory of

the case was that there was no sexual assault. In Hirata, in

closing argument, the prosecutor stated to the jury that their

decision "'comes down to one question, is [CW] believable?'"

Hirata, 152 Hawai#i at 29, 520 P.3d at 227. In the case now

before us, the very same prosecutor stated to the jury

"ultimately this case comes to one question. Is [CW]

believable?" The prosecutor then made essentially the same
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argument, except she noted the young age of the complaining

witness in Hirata, and the advanced age of CW in this case:

Hirata, 152 Hawai#i at 29, 520 This case (Browder)
P.3d at 227: (emphasis added):
. . . . And it also comes down to one . . . . [U]ltimately this case comes
question, is [CW] believable? to one question. Is [CW] believable?

Now, the Court gave you the jury Now, [the Circuit Court] just read
instructions that you all have in you a number of jury instructions,
front of you, and on page 8, there and on page 9 you'll find a number of
are a list of factors that you can credibility factors that you can use
consider when you deliberate to to determine the credibility of
determine if a witness is credible. witnesses.
So you look at their demeanor, their
candor, lack of motive, and if what
they say makes sense.

So when you look at the factors – and I'm not gonna reread everything again
I'll go through them with you, ladies for you, but when you look at some of
and gentlemen – the answer is clear them like her demeanor, her candor,
to this question. Yes, [CW] is her lack of motive and is what she
believable. And because [CW] is says makes sense, then the State
believable, it's – it is the submits that, yes, the answer to this
testimony that has a convincing force question is that [CW] is believable.
upon you that counts, and the And because [CW] is believable as
testimony of even a single witness, stated on page 11 of your jury
if believed, can be sufficient to instructions, the testimony of even a
prove a fact. single witness if believed is
sufficient to prove a fact.

So let's go through the factors of So now let's look a little bit closer
[CW]'s credibility. Her appearance, at the credibility factors and the
demeanor, her manner of testifying. evidence that you heard over the last
She came here last week. You saw week.
her. She's 11 years old. She was
nervous and understandably so. And So looking at [CW]'s appearance,
she tried to be brave up there on the demeanor, manner of testifying you
stand. She answered all of my saw her and you got to meet her over
questions. She answered all of the the course of two days of
defense attorney's questions. Almost questioning.
three hours up there.

And then at the end of almost those She's 80 years old. She was nervous,
three hours, she couldn't be brave shaking on the witness stand. She
anymore, and you saw her when she got was emotional and crying. She was
emotional. She broke when the scared. She told you she was scared
defense attorney continued to call – that morning. She was scared at the
to question her credibility and if hospital. She was scared even a week
she was making this up, and her and a half later, and she was still
answer to you was this really scared in court. This is consistent
happened. It's consistent with a with someone who's been traumatized.
child who is traumatized.

(Spacing between paragraphs altered).

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In Hirata, the Hawai#i Supreme Court held that the

prosecutor's remark that the complaining witness (also referred

to as CW) testified "consistent with a child who is traumatized"

was misconduct. Hirata, 152 Hawai#i at 33, 520 P.3d at 231. The

supreme court explained its reasoning as follows:
A prosecuting attorney has a duty to seek justice, to
play fair and square. A prosecuting attorney's words have
an outsized influence on a jury. For this reason, this
court has often directed prosecutors to not express personal
beliefs about the evidence. See, e.g., State v. Marsh, 68
Haw. 659, 660, 728 P.2d 1301, 1302 (1986) (stating that
prosecutors must "refrain from expressing their personal
views as to a defendant's guilt or credibility of
witnesses").

Prosecutors are also forbidden from introducing new
information or evidence in closing argument. See Basham,
132 Hawai#i at 113, 319 P.3d at 1121 ("Closing arguments are
not the place to introduce new evidence outside the
safeguards of the Hawai#i Rules of Evidence."). We have
explained that "expressions of personal opinion by the
prosecutor are a form of unsworn, unchecked testimony and
tend to exploit the influence of the prosecutor's office and
undermine the objective detachment that should separate an
attorney from the cause being argued." Salavea, 147 Hawai #i
at 582, 465 P.3d at 1029.

Here, the jury heard the DPA opine that the CW
testified "consistent with a child who is traumatized." But
it heard no evidence that could legitimately support the
prosecutor's claim that the CW testified consistent with a
traumatized child. 13 No witness testified about CW's mental
health or psychological condition. 14
13
Nor in most cases could they. See Riveira, 149
Hawai#i at 431, 494 P.3d at 1164 (explaining
that testimony about "a crime's after-effects
are rarely allowed" because the information is
both irrelevant and highly prejudicial).
14
The state's expert testified generally about
delayed disclosure, "tunnel memory," and other
dynamics of child sexual abuse. But the expert
supplied no evidence about post-abuse "trauma"
or how traumatized children act or testify in
court. . . .

The DPA improperly expressed her personal belief about
CW's credibility and injected new evidence by explaining to
the jury that CW's testimony is "consistent with a child who
is traumatized." Her unsupported comment invited the jury
to infer that she had undisclosed information about CW's
mental health, information that could corroborate a

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trauma-inducing event like the charged crime. We hold that
the DPA's remarks constituted serious prosecutorial
misconduct.

Hirata, 152 Hawai#i at 33, 520 P.3d at 231 (emphasis added).

The rule of law applied to the prosecutor in Hirata is

equally applicable to her in this case. The prosecutor was

forbidden from introducing new information or evidence in closing

argument. Expressions of personal opinion were also forbidden.

In this case, the prosecutor gave the same opinion she did in

Hirata, that the complaining witness testified consistent with a

child/person who is traumatized. In Hirata, no witness testified

about the complaining witness's mental health or psychological

condition – in this case, no witness testified about the

complaining witness's mental health or psychological condition.1

In Hirata, there was an expert witness, but he supplied no

evidence about post-abuse trauma or how traumatized children act

or testify in court – in this case, there was no expert witness,

1
The majority submits that the prosecutor's remark was supported by
CW's testimony regarding the effects of the alleged sexual assault when
reporting the incident to others, and those witnesses' testimonies describing
CW's emotional condition after the alleged incident, when CW told them she had
been sexually assaulted. This is not unlike Hirata, however, where the
complaining witness testified that she got scared and was afraid after the
alleged sexual assault, and her mother testified that when the complaining
witness disclosed the alleged abuse, she was hesitant and scared, and she
started crying as she spoke; the complaining witness in Hirata also became
emotional during her testimony. 152 Hawai #i at 37, 38, 520 P.3d at 235, 236
(Recktenwald, C.J., dissenting). In Hirata, there was delay in the disclosure
of the alleged sexual abuse, and delayed disclosure by sexually abused
children was the subject of expert testimony. Id. at 37-38, 39, 520 P.3d at
235-36, 237 (Recktenwald, C.J. dissenting). However, that deviation from the
fact pattern in Hirata does not support a conclusion that the serious
prosecutorial misconduct in Hirata is distinguishable from the prosecutor's
conduct in this case.

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and there was no evidence about post-abuse trauma or how

traumatized persons act or testify in court.

In Hirata, the supreme court concluded that the

prosecutor expressed her personal belief about the complaining

witness's credibility and injected new evidence by explaining

that the complaining witness's testimony was consistent with a

child who is traumatized – here, I conclude that the prosecutor

expressed her personal belief about the complaining witness's

credibility and injected new evidence by explaining that the

complaining witness's testimony was consistent with a person who

is traumatized. Like in Hirata, here, the prosecutor's

unsupported comment invited the jury to infer that she had

undisclosed information about CW's mental health, information

that could corroborate a trauma-inducing event like the charged

crime. As the supreme court held in Hirata, I would hold that

the prosecutor's remarks here constituted serious prosecutorial

misconduct.

Finally, having determined that both of the challenged

remarks constitute prosecutorial misconduct, I will briefly turn

to the issue of whether there is a reasonable possibility that

this misconduct might have affected the outcome in this case.

See, e.g., Hirata, 152 Hawai#i at 33, 520 P.3d at 231 (citing

State v. Riveira, 149 Hawai#i 427, 431, 494 P.3d 1160, 1164

(2021)). As explained in Hirata, the appellate courts have

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considered three factors, two of which have greater weight here,2

i.e., "the nature of the prosecuting attorney's misconduct" and

"the strength or weakness of the evidence against the defendant."

Id. at 34, 520 P.3d at 232.

As to the "consistent-with-a-child-who-is-traumatized

misconduct," the supreme court concluded that, standing alone,

that misconduct was reasonably likely to have affected the

outcome of Hirata's trial. Id. at 35, 520 P.3d at 233. The

nature of that misconduct in Hirata is indistinguishable from the

consistent-with-a-person-who-is-traumatized misconduct in this

case. As to the remaining factor, the strength or weakness of

the evidence against Browder, the outcome of this case rests

almost exclusively on the jury's decision about CW's credibility.

As the prosecutor argued to the jury, "ultimately this case comes

to one question. Is [CW] believable?" The defense's theory of

the case, as laid out in Browder's closing argument, was the

opposite: CW's story of what happened changed significantly with

each telling, there is no hair, DNA, or other evidence supporting

that Browder was in CW's tent, you (the jury) should not believe

CW. CW was the only witness who could describe the actual acts

and her testimony constituted the most significant evidence

against Browder. See e.g., State v Williams, 149 Hawai#i 381,

397, 491 P.3d 592, 608 (2021).

2
There was no "curative instruction" (the other factor) here. The
supreme court's rationale in Hirata for diminishing the weight of that factor
applies here. See Hirata, 152 Hawai#i at 34, 520 P.3d at 232.

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There was no overwhelming evidence of Browder's guilt.

"In cases reliant on the jury's credibility findings, misconduct

attacking a defendant's credibility or bolstering a complainant's

(or critical witness's) credibility is seldom harmless beyond a

reasonable doubt." Hirata, 152 Hawai#i at 35, 520 P.3d at 233

(citation omitted); see also Williams, 149 Hawai#i at 397, 491

P.3d at 608. Here, the prosecutor enhanced CW's credibility, not

only through her testimony-consistent-with-a-person-who-is-

traumatized misconduct, but also through her we-know-Browder-did-

it statements to the jury. I conclude that there is reasonable

possibility that the misconduct contributed to the trial's result

and that the prosecutorial misconduct in this case was not

harmless beyond a reasonable doubt.

Accordingly, I would vacate Browder's conviction based

on these multiple instances of misconduct and remand the case to

the Circuit Court.

/s/ Katherine G. Leonard
Associate Judge

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