In re: GH ( 2020 )

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
25-SEP-2020
07:56 AM
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
IN THE INTEREST OF GH
APPEAL FROM THE FAMILY COURT OF THE FIRST CIRCUIT
(FC-J NO. 0105711)
SUMMARY DISPOSITION ORDER
(By: Ginoza, Chief Judge, Chan and Hiraoka, JJ.)
Minor-Appellant GH (Minor) appeals from a June 5, 2019
"Decree Re: Law Violation Petition(s)" (Decree) and July 23, 2019
"Order Re: [Minor's] Motion to Reconsider Adjudication of Minor
as a Law Violator and Motion to Reconsider Commitment to the
Executive Director of the Office of Youth Services Fld [sic]
6/14/19" entered by the Family Court of the First Circuit (family
court).1 The family court adjudicated Minor a law violator as to
one count of Sexual Assault in the First Degree (Sex Assault 1),
in violation of Hawaii Revised Statutes (HRS) § 707-730(1)(b)2,
and two counts of Sexual Assault in the Third Degree (Sex Assault
3), in violation of HRS § 707-732(1)(b)3, as follows:
1
The Honorable Bode A. Uale presided.
2
HRS § 707-730(1)(b) (2014) provides that "[a] person commits the
offense of [Sex Assault 1] if . . . [t]he person knowingly engages in sexual
penetration with another person who is less than fourteen years old[.]"
3
HRS § 707-732(1)(b) (2014) provides that "[a] person commits the
offense of [Sex Assault 3] if . . . [t]he person knowingly subjects to sexual
contact another person who is less than fourteen years old or causes such a
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
• Count 1, Sex Assault 1, by inserting Minor's penis
into the complaining witness's (CW) genital
opening;
• Count 2, Sex Assault 3, by placing Minor's hand on
CW's breast; and
• Count 4, Sex Assault 3, by placing CW's hand on
Minor's penis.
Minor argues that the family court erroneously (1)
excluded evidence at trial regarding CW's unrelated past sex
assault allegations under the "rape shield statute," set forth in
Hawaii Rules of Evidence (HRE) Rule 412 (2016),4 because it was
admissible extrinsic evidence of prior inconsistent statements
under HRE Rule 613(b) (2016); (2) failed to make a preliminary
determination as to the falsity of said allegations; and (3)
adjudicated Minor a law violator based on insufficient evidence.
We address Minor's arguments out of order for the sake of
clarity.
A. Evidence of CW's alleged past sex assault allegations
was inadmissible under HRE Rule 412.
HRE Rule 412 provides, in relevant part:
Rule 412 Sexual offense and sexual harassment cases;
relevance of victim's past behavior. (a) Notwithstanding
any other provision of law, in a criminal case in which a
person is accused of a sexual offense, reputation or opinion
evidence of the past sexual behavior of an alleged victim of
the sexual offense is not admissible to prove the character
of the victim to show action in conformity therewith.
(b) Notwithstanding any other provision of law, in a
criminal case in which a person is accused of a sexual
offense, evidence of an alleged victim's past sexual
behavior other than reputation or opinion evidence is not
admissible to prove the character of the victim to show
action in conformity therewith, unless the evidence is:
. . .
person to have sexual contact with the person[.]"
4
For the sake of simplicity, and consistent with HRE Rule 412(h)
("'[P]ast sexual behavior' means sexual behavior other than the sexual behavior
with respect to which a sexual offense . . . is alleged."), we refer to CW's
prior sexual assault allegations against people besides Minor as CW's "past sex
assault allegations" or "past sex assault claims."
2
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
(2) Admitted in accordance with subsection (c) and
is evidence of:
(A) Past sexual behavior with persons other
than the accused, offered by the accused
upon the issue of whether the accused was
or was not, with respect to the alleged
victim, the source of semen or injury[.]
. . . .
(c)(1) If the person accused of committing a sexual
offense intends to offer under subsection (b)
evidence of specific instances of the alleged
victim's past sexual behavior, the accused shall
make a written motion to offer the evidence not
later than fifteen days before the date on which
the trial in which the evidence is to be offered
is scheduled to begin, except that the court may
allow the motion to be made at a later date,
including during trial, if the court determines
either that the evidence is newly discovered and
could not have been obtained earlier through the
exercise of due diligence or that the issue to
which the evidence relates has newly arisen in
the case. Any motion made under this paragraph
shall be served on all other parties and on the
alleged victim.
. . . .
(h) For purposes of this rule, the term "past sexual
behavior" means sexual behavior other than the sexual
behavior with respect to which a sexual offense . . . is
alleged.
1. The family court did not err by failing to make a
preliminary determination under HRE Rule 412(c)(1) as to the
falsity of CW's alleged past sex assault allegations.
Minor argues that the family court erroneously failed
to make a preliminary determination under HRE Rule 412(c)(1) as
to the falsity of CW's past sex assault allegations because, at
trial, Minor notified the family court that he intended to
introduce evidence of such. However, as Minor conceded at trial,
he did not provide written notice that he intended to introduce
the evidence fifteen days prior to trial, as required by HRE Rule
412(c)(1). Further, Minor has not argued that an exception to
the written notice requirement applied. See HRE Rule 412(c)(1).
Therefore, this point lacks merit.
3
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
2. The family court did not err by ruling that
evidence of CW's past sex assault allegations was inadmissible
under HRE Rule 412.
The Hawai#i Supreme Court has held:
[W]here a defendant seeks to admit allegedly false
statements made by a complainant regarding an unrelated
sexual assault, the trial court must make a preliminary
determination based on a preponderance of the evidence that
the statements are false. Correlatively, where the trial
court is unable to determine by a preponderance of the
evidence that the statement is false, the defendant has
failed to meet his or her burden, and the evidence may be
properly excluded.
State v. West, 95 Hawai#i 452, 460, 24 P.3d 648, 656 (2001).
Citing to West, Minor argues that the family court
erroneously found that evidence of CW's past sex assault claims
fell within the purview of HRE Rule 412 because the evidence was
not of "sexual conduct."5 However, in West, the Hawai#i Supreme
Court recognized that
as some courts have explained, where the truth or falsity of
a statement regarding an unrelated sexual assault is
unknown, it falls within the purview of the rape shield
statute and must be analyzed accordingly. To permit
reception of evidence which may be true or false would allow
circumvention of the rape shield statute because the jury
may be tempted to consider evidence about an alleged
victim's sexual conduct in order to determine the victim's
credibility.
95 Hawai#i at 459, 24 P.3d at 655 (citations, internal quotation
marks, and brackets omitted). The Hawai#i Supreme Court thus
held that when a defendant seeks to admit allegedly false
statements by a complainant regarding past sexual assault, the
trial court must make a preliminary determination that the
statements are false so as to fall outside the reach of the rape
shield statute. Id. at 459-60, 24 P.3d at 655-56.
Here, Minor does not dispute the family court's
conclusion that CW's "statements [did] not meet the threshold of
5
The actual phrase used in HRE Rule 412 is "past sexual behavior."
4
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
falsity."6 As the Hawai#i Supreme Court emphasized in West,
"fact-finding is the fundamental responsibility of the judge of
the facts at trial" and, therefore, the appellate court is not to
decide factual questions de novo. 95 Hawai#i at 461, 24 P.3d at
657. We are thus bound by the family court's finding that
falsity was not shown.
Further, as in West, even though the family court did
not make a preliminary determination of falsity, the court may
affirm the Decree based on the family court's finding that
falsity was not shown. Because Minor did not demonstrate that
CW's alleged past sex assault claims were false, evidence
regarding them fell within the purview of HRE Rule 412. See id.
at 460, 24 P.3d at 656. Minor sought to introduce the evidence
to prove CW's character for untruthfulness to show that her
allegations against Minor were in conformity therewith;
therefore, the family court properly excluded the evidence. See
HRE Rule 412(a).
3. The testimony was inadmissible under HRE Rule 613.
Minor argues that the family court erred by refusing to
admit evidence of CW's past sex assault allegations under HRE
Rule 613(b).7 However, as Plaintiff-Appellee State of Hawai#i
(State) argues, HRE Rule 412(a) and (b) are introduced by the
phrase, "Notwithstanding any other provision of law." Based on
its plain language, HRE Rule 412 prevails over any other
provision of law, including HRE Rule 613.
6
In his offer of proof, Minor argued his intention in proffering the
evidence was not to show that the past sex assault claims were false but rather
to show that CW's initial report that people other than Minor had sexually
assaulted her was inconsistent with her statement to police.
7
HRE Rule 613(b) provides in relevant part:
Extrinsic evidence of a prior inconsistent statement by a
witness is not admissible unless, on direct or
cross-examination, (1) the circumstances of the statement have
been brought to the attention of the witness, and (2) the
witness has been asked whether the witness made the statement.
5
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Furthermore, as the State maintains, the requirements
of HRE Rule 412 cannot be circumvented by satisfaction of a rule
of evidence of general applicability. HRE Rule 412 is a law of
specific application, whereas HRE Rule 613 is a law of general
application. See HRE Rules 412, 613. "Where a plainly
irreconcilable conflict exists between a law of general
application and a law of specific application concerning the same
subject matter, the specific authority will be favored." State
v. Wallace, 71 Haw. 591, 594, 801 P.2d 27, 29 (1990) (internal
quotation marks omitted) (quoting State v. Greyson, 70 Haw. 227,
235, 768 P.2d 759, 763-64 (1989)).
The family court did not err by excluding evidence of
CW's past sex assault allegations notwithstanding HRE Rule 613,
because the evidence fell within HRE Rule 412.
B. There was sufficient evidence to support the Decree.
Minor argues in a conclusory fashion that the family
court erroneously adjudicated Minor a law violator based on
insufficient evidence. We disagree.
As to Count 1, CW testified that when she was nine
years old, Minor put his penis inside of her vaginal area and
moved his body back and forth, hurting the inside of her vagina.
See HRS § 707-730(1)(b). For Count 2, CW testified that when she
was nine years old, Minor put his hand on her breast and
squeezed. See HRS § 707-732(1)(b). For Count 4, CW testified
that when she was nine years old, Minor put CW's hand on Minor's
penis and moved it up and down. See HRS § 707-732(1)(b). The
family court found CW to be a credible witness, and we decline to
pass upon the family court's credibility determination. See In
re Doe, 106 Hawai#i 530, 537 n.3, 107 P.3d 1203, 1210, n.3 (App.
2005).
Therefore, IT IS HEREBY ORDERED that the June 5, 2019
"Decree Re: Law Violation Petition(s)" and the July 23, 2019
"Order Re: [Minor's] Motion to Reconsider Adjudication of Minor
as a Law Violator and Motion to Reconsider Commitment to the
6
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Executive Director of the Office of Youth Services Fld [sic]
6/14/19," both entered by the Family Court of the First Circuit,
are affirmed.
DATED: Honolulu, Hawai#i, September 25, 2020.
On the briefs:
/s/ Lisa M. Ginoza
Chad M. Kumagai, Chief Judge
for Plaintiff-Appellee.
Walter J. Rodby, /s/ Derrick H. M. Chan
for Defendant-Appellant. Associate Judge
/s/ Keith K. Hiraoka
Associate Judge
7