*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND THE PACIFIC REPORTER ***
Electronically Filed Supreme Court SCWC-XX-XXXXXXX 10-OCT-2022 07:59 AM Dkt. 15 OP
IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
---o0o--- ________________________________________________________________
IN THE INTEREST OF GH ________________________________________________________________
SCWC-XX-XXXXXXX
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CAAP-XX-XXXXXXX; CASE NO. FC-J 0105711)
OCTOBER 10, 2022
RECKTENWALD, C.J., NAKAYAMA, McKENNA, WILSON, AND EDDINS, JJ.
OPINION OF THE COURT BY McKENNA, J.
I. Introduction
This case arises from an adjudication of GH (“Minor”), a
teenager at the time, as a law violator by the Family Court of
the First Circuit (“family court”), for sexually assaulting the
complaining witness (“CW”), who was nine years old at the time
of the assault.
On certiorari, Minor alleges the Intermediate Court of
Appeals (“ICA”) erred by (1) affirming the family court’s *** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND THE PACIFIC REPORTER ***
exclusion, based on Rule 412 (2016) of the Hawaiʻi Rules of
Evidence (“HRE”), of Minor’s proffered extrinsic evidence of
CW’s past false sexual assault allegations; (2) concluding the
family court had not erred by failing to make a preliminary
determination as to the truth or falsity of CW’s past sexual
assault allegations, as required by State v. West, 95 Hawaiʻi
452, 24 P.3d 648 (2001); and (3) concluding there was sufficient
evidence to deem Minor a law violator.
We preliminarily address the untimeliness of Minor’s
certiorari application, which was filed more than eight months
after the ICA’s October 30, 2020 judgment on appeal. In State
v. Uchima, 147 Hawaiʻi 64, 464 P.3d 852 (2020), we held that a
defendant in a criminal case has the right to effective
assistance of counsel during all stages of an appeal, which
includes procedural compliance with the statutory requirements
for filing an application for writ of certiorari. 147 Hawaiʻi at
79, 464 P.3d at 867. We have also held that “[b]ecause
effective assistance of counsel is fundamental to a fair trial,
it should be guaranteed in juvenile law violator proceedings as
have other fundamental criminal case guarantees.” In re Doe,
107 Hawaiʻi 12, 16, 108 P.3d 966, 970 (2005). Hence, Uchima’s
holding applies to juvenile law violation cases.
Addressing the merits, we hold that (1) under the
circumstances of this case, it was an abuse of discretion for
2 *** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND THE PACIFIC REPORTER ***
the family court to exclude the proffered evidence based on the
procedural notice requirements of HRE Rule 412; (2) as further
discussed below, if a defendant seeks to admit a complaining
witness’s false allegations of sexual assault, then
admissibility of such evidence is not subject to HRE Rule 412 or
West, 95 Hawaiʻi 452, 24 P.3d 648; and (3) Minor’s insufficiency
of evidence argument lacks merit.
We therefore vacate the ICA’s October 30, 2020 judgment on
appeal as well as the family court’s June 5, 2019 decree, July
23, 2019 order, and September 24, 2019 findings of fact and
conclusions of law. We remand to the family court for
proceedings consistent with this opinion.
II. Background
A. Family court proceedings
1. Charges
On February 5, 2019, the State of Hawaiʻi (“the State”)
filed six amended petitions against Minor1: one for first-degree
1 Minor comes within the purview of Hawaiʻi Revised Statutes (“HRS”) § 571-11 (2018), which states in relevant part:
Except as otherwise provided in this chapter, the court shall have exclusive original jurisdiction in proceedings:
(1) Concerning any person who is alleged to have committed an act prior to achieving eighteen years of age that would constitute a violation or attempted violation of any federal, state, or local law or county ordinance.
3 *** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND THE PACIFIC REPORTER ***
sexual assault,2 four for third-degree sexual assault,3 and one
for attempted first-degree sexual assault.4
2. Motion in limine and hearing on the motion
On February 8, 2019, the State filed a motion in limine
based on HRE Rule 4125 to prohibit the defense and witnesses from
referring to “[a]ny evidence, including but not limited to
reputation and/or opinion, relating to the past sexual history,
behavior and/or character of [CW].” At the time, trial was
scheduled for April 17, 2019. The State said it had reviewed
child welfare reports and believed Minor might attempt to
inquire into the past sexual history of CW in violation of HRE
Rule 412. Minor did not file a memorandum in response to this
motion. Minor also did not file any HRE Rule 412(c) notice or
2 HRS § 707-730 (2014) provided in relevant part: “(1) A person commits the offense of sexual assault in the first degree if: . . . (b) The person knowingly engages in sexual penetration with another person who is less than fourteen years old[.]”
3 HRS § 707-732 (2014) provided in relevant part: “(1) A person commits the offense of sexual assault in the third degree if: . . . (b) The person knowingly subjects to sexual contact another person who is less than fourteen years old or causes such a person to have sexual contact with the person[.]”
4 HRS § 705-500 (2014) provides in relevant part:
(1) A person is guilty of an attempt to commit a crime if the person: . . . . (b) Intentionally engages in conduct which, under the circumstances as the person believes them to be, constitutes a substantial step in a course of conduct intended to culminate in the person’s commission of the crime.
5 See infra Section IV.B.1 for relevant portions of HRE Rule 412.
4 *** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND THE PACIFIC REPORTER ***
motion regarding CW’s past sexual behavior allegations of sexual
assault by others.
Just before beginning the rescheduled June 4, 2019 bench
trial, the family court heard the State’s motion in limine. The
State indicated Minor might attempt to inquire into CW’s past
sexual history, which it said must be excluded under HRE Rule
412. Minor responded that although he would not offer evidence
of CW’s past sexual conduct, he would be going into accusations
she had made against others.
3. Bench trial
At trial, various witnesses testified. CW testified as
follows:
She was sexually assaulted by Minor when she was nine years
old. At the time, she lived with her mother and father, two
older sisters, the sisters’ boyfriends, and her little sister.
She met Minor as a friend of a neighbor with whom she often
spent time. She came to view Minor as an older brother, and
Minor often slept over at her house.
One night, Minor came into her room and sexually assaulted
her. CW described the assault in detail. Minor told her that
if she told anyone, something would happen to her. CW did not
speak about what happened until she told a hospital employee.
CW was later transferred into the care of a foster mother,
her aunt. Her aunt had a daughter, CW’s cousin, who was three
5 *** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND THE PACIFIC REPORTER ***
years older. After moving in with her aunt, CW went to the
Children’s Justice Center (“CJC”) and spoke with an interviewer
about the sexual assault by Minor. She was later taken to a
doctor for a physical examination.
On cross-examination, Minor asked CW whether she had told
her cousin that her sister’s boyfriend had sexually assaulted
her. CW responded she had told her cousin that her sister’s
boyfriend would watch her when she slept, but denied saying he
had touched her sexually. Minor asked the same question
regarding CW’s father. CW responded she had only told her
cousin her father at times made her feel uncomfortable. Minor
also asked whether CW told her cousin that another cousin had
touched and raped her. The court sustained the State’s
objection to this question.
Minor then also asked whether CW had told her aunt she had
been sexually assaulted by her father. The State objected on
relevance and hearsay grounds. Minor responded he was
attempting to cross-examine CW regarding past false accusations
of sexual assault, stating “when the [CW] made a statement to
the police, she denied these false accusations.” The family
court concluded it would “allow some leeway” and permitted Minor
to ask CW whether she had told her aunt she had been sexually
assaulted by her father. CW again responded she had not said
6 *** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND THE PACIFIC REPORTER ***
that her father sexually assaulted her, but that certain things
he did had made her uncomfortable.
Minor then attempted to adduce extrinsic evidence of CW’s
alleged false sexual assault allegations. Minor called CW’s
aunt as a witness and asked what CW had said about being
sexually assaulted. The family court sua sponte disallowed a
response on hearsay grounds.6 Minor then indicated he was ready
to call CW’s cousin to the stand to ask similar questions about
CW’s false allegations, but the family court disallowed any such
testimony.7
At the close of evidence, the family court ruled it had
properly excluded testimony from others concerning CW’s past
statements regarding other alleged sexual assaults because Minor
never filed a HRE Rule 412 motion with fifteen days’ notice
before trial. Minor argued that a HRE Rule 412 motion was not
necessary because the defense only intended to ask about false
accusations, not sexual behavior, but the family court
disagreed.
6 The anticipated evidence was not being proffered for the truth of the matter asserted.
7 Minor also questioned Detective Cadiz, who had watched the CJC interview through a window, about what CW had said. Defense counsel attempted to elicit evidence that, contrary to her trial testimony, CW never said that her father made her uncomfortable.
7 *** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND THE PACIFIC REPORTER ***
4. Adjudication and sentence
The family court then adjudicated Minor a law violator on
one count of first-degree sexual assault and two counts of
third-degree sexual assault and dismissed the remaining counts
with prejudice. The family court committed Minor to the custody
of the Office of Youth Services for commitment to the Hawaiʻi
Youth Correctional Facility until age nineteen, with orders for
the Minor to be referred for behavioral services. On June 5,
2019, the family court filed its “Decree Re: Law Violation
Petition(s)” (“June 5, 2019 decree”).
5. Post-trial motions
On June 13, 2019, Minor moved for a new trial, arguing the
family court erred in precluding Minor from eliciting evidence
of CW’s false accusations of sexual assault by others. Citing
to West, 95 Hawaiʻi 452, 24 P.3d 648, Minor asserted such
evidence was not “sexual conduct” evidence under HRE Rule 412.
Minor also alternatively argued that, pursuant to West, the
family court erred in not making a preliminary determination as
to the falsity of CW’s prior allegations. Minor argued he would
have met his burden of proving that CW’s statements were false.
Minor also asserted that there were “prejudicial violations of
the Minor’s constitutional rights” and that he had been denied a
fair trial.
8 *** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND THE PACIFIC REPORTER ***
On July 23, 2019, the family court affirmed its evidentiary
rulings based on Minor’s failure to file a HRE Rule 412 motion
before trial (“July 23, 2019 order”). The family court’s post-
appeal September 24, 2019 findings of fact and conclusions of
law stated (1) defense counsel never filed a HRE Rule 412 motion
before trial; (2) under West, 95 Hawaiʻi at 459, 24 P.3d at 655,
“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”;
(3) defense counsel only asserted CW’s prior statements may have
been false; and (4) because the threshold of falsity was not
met, CW’s statements fell within HRE Rule 412 and were properly
excluded.
B. ICA proceedings
On appeal to the ICA, Minor argued the family court erred
because (1) evidence of CW’s prior inconsistent statements about
prior sexual assaults should have been admitted under HRE Rule
613(b) (2016);8 (2) CW’s allegations should not have been
excluded under HRE Rule 412 because West held that a complaining
witness’s false statements of prior unrelated sexual assaults
8 HRE Rule 613(b) provides:
Extrinsic evidence of prior inconsistent statement of witness. 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.
9 *** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND THE PACIFIC REPORTER ***
are not excluded by HRE Rule 412; (3) in any event, the family
court should have made a preliminary determination as to the
falsity of CW’s prior allegations based on West; and (4) there
was insufficient evidence that he was a law violator.
In its summary disposition order, the ICA held evidence of
CW’s past sexual assault allegations was inadmissible under HRE
Rule 412. The ICA concluded the family court did not err in not
making a preliminary determination as to the falsity of CW’s
allegations because Minor failed to comply with HRE Rule
412(c)’s written notice requirement. The ICA also held that
even though the family court had not made a preliminary
determination as to falsity, the family court could find in its
post-trial findings that falsity had not been shown.
Additionally, the ICA held CW’s inconsistent statements
inadmissible under HRE Rule 613 because HRE Rule 412, a law of
specific application, controls over HRE Rule 613, a law of
general application. Finally, the ICA held there was sufficient
evidence to support Minor’s adjudication as a law violator. The
ICA thus affirmed the family court’s June 5, 2019 decree and
July 23, 2019 order.
C. Supreme Court proceedings
More than eight months after the ICA’s October 30,
2020 judgment on appeal, Minor’s counsel filed an untimely
certiorari application. Defense counsel states, “Due to
10 *** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND THE PACIFIC REPORTER ***
counsel’s error, an application for writ of certiorari was
not filed in a timely fashion in the above-entitled matter.
However, pursuant to the principles outlined in State v.
Uchima, . . . we ask that this court consider the arguments
and representations presented herein.”
III. Standards of review
A. Jurisdiction
The existence of jurisdiction is a question of law and is
reviewed de novo under the right/wrong standard. Lingle v. Haw.
Gov’t Emps. Ass’n, Local 152, 107 Hawaiʻi 178, 182, 111 P.3d 587,
591 (2005).
B. Admissibility of evidence When application of a particular evidentiary rule can yield only one correct result, the proper standard for appellate review is the right/wrong standard. However, the traditional abuse of discretion standard should be applied in the case of those rules of evidence that require a “judgment call” on the part of the trial court.
State v. Heggland, 118 Hawaiʻi 425, 434, 193 P.3d 341, 350 (2008)
(citation omitted).
C. Exclusion of admissible evidence
A trial court’s error in excluding evidence prejudicially
affects a defendant’s right to a fair trial and requires vacatur
unless the exclusion was harmless beyond a reasonable doubt.
See State v. Kato, 147 Hawaiʻi 478, 497, 465 P.3d 925, 944
(2020); State v. Abion, 148 Hawaiʻi 445, 448, 478 P.3d 270, 273
(2020).
11 *** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND THE PACIFIC REPORTER ***
D. Statutory interpretation The interpretation of a statute is a question of law that this court reviews de novo. When construing a statute, our foremost obligation is to ascertain and give effect to the intention of the legislature, which is to be obtained primarily from the language contained in the statute itself. And we must read statutory language in the context of the entire statute and construe it in a manner consistent with its purpose.
Abion, 148 Hawaiʻi at 454, 478 P.3d at 279 (citations omitted).
E. Sufficiency of the evidence 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 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 is credible evidence which is of sufficient quality and probative value to enable a person of reasonable caution to support a conclusion.
State v. Xiao, 123 Hawaiʻi 251, 257, 231 P.3d 968, 974 (2010)
(cleaned up).
IV. Discussion
A. Uchima applies to juvenile proceedings
Minor’s certiorari application was filed approximately
eight months after the ICA’s judgment on appeal. Under HRS §
602-59(a) and (c) (2016 & Supp. 2017), however, a party has up
to thirty days after the ICA’s judgment on appeal or dismissal
order to file a certiorari application with this court. A party
may extend this deadline by an additional thirty days upon
written request. HRS § 602-59(c).
12 *** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND THE PACIFIC REPORTER ***
In Uchima, 147 Hawaiʻi at 82, 464 P.3d at 870, we held this
court may “decline to dismiss an application for writ of
certiorari as untimely and proceed to review its merits when it
is plain from the record that defense counsel failed to comply
with the procedural requirements for filing the application.”
(Citation omitted). Uchima held that the Hawaiʻi Constitution
“guarantees a defendant in a criminal case the right to the
effective assistance of counsel on certiorari review in the same
manner that it does during all other critical stages of the
criminal proceedings.” 147 Hawaiʻi at 76, 464 P.3d at 864.
This court has also held that “[b]ecause effective
assistance of counsel is fundamental to a fair trial, it should
be guaranteed in juvenile law violator proceedings as have other
fundamental criminal case guarantees.” In re Doe, 107 Hawaiʻi
12, 16, 108 P.3d 966, 970 (2005). Hence, Uchima also applies to
juvenile law violation proceedings.
Here, defense counsel admitted ineffective assistance of
counsel, indicating in the certiorari application that “[d]ue to
counsel’s error, an application for writ of certiorari was not
filed in a timely fashion[.]” We therefore decline to dismiss
Minor’s certiorari application and now turn to its merits. We
address Minor’s questions on certiorari as follows.
13 *** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND THE PACIFIC REPORTER ***
B. The proffered evidence should not have been excluded
At trial, Minor sought to introduce extrinsic evidence that
CW made false statements of sexual assault against others. The
family court and ICA held the proffered evidence inadmissible
based on HRE Rule 412, as applied by West, 95 Hawaiʻi 452, 24
P.3d 648.
1. HRE Rule 412’s plain language renders it inapplicable to false allegations of sexual assault
HRE Rule 412 provides in relevant part as follows:
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:
(1) Admitted in accordance with subsection (c)(1) and (2) and is constitutionally required to be admitted; or
(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; or
(B) Past sexual behavior with the accused and is offered by the accused upon the issue of whether the alleged victim consented to the sexual behavior with respect to which sexual assault is alleged.
14 *** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND THE PACIFIC REPORTER ***
(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.
(2) The motion described in paragraph (1) shall be accompanied by a written offer of proof. If the court determines that the offer of proof contains evidence described in subsection (b), the court shall order a hearing in chambers to determine if the evidence is admissible. At the hearing, the parties may call witnesses, including the alleged victim, and offer relevant evidence. Notwithstanding subsection (b) of rule 104, if the relevancy of the evidence that the accused seeks to offer in the trial depends upon the fulfillment of a condition of fact, the court, at the hearing in chambers or at a subsequent hearing in chambers scheduled for this purpose, shall accept evidence on the issue of whether the condition of fact is fulfilled and shall determine the issue.
(3) If the court determines on the basis of the hearing described in paragraph (2) that the evidence that the accused seeks to offer is relevant and that the probative value of the evidence outweighs the danger of unfair prejudice, the evidence shall be admissible in the trial to the extent an order made by the court specifies evidence that may be offered and areas with respect to which the alleged victim may be examined or cross-examined.
. . . .
(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 or sexual harassment is alleged.
HRE Rule 412 prohibits evidence of a complaining witness’s
“past sexual behavior” in a criminal case in which a defendant
is charged with sexual assault when offered for certain
purposes. HRE Rule 412(h) defines “past sexual behavior” as
15 *** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND THE PACIFIC REPORTER ***
“sexual behavior other than the sexual behavior with respect to
which a sexual offense or sexual harassment is alleged.”
State v. Kelekolio, 74 Haw. 479, 849 P.2d 58 (1993), noted
that although HRE Rule 412 does not define “behavior” as used in
the term “sexual behavior,” it “pertains to the admissibility of
the sexual assault victim’s past sexual conduct.” 74 Haw. at
521 n.19, 849 P.2d at 77 n.19 (cleaned up) (citing S. Stand.
Comm. Rep. No. 22–80, in 1980 Senate Journal, at 1034). We
pointed out that “conduct” means a “mode of action” or
“something done.” Id. (first quoting Conduct, Black’s Law
Dictionary (6th ed. 1990); and then quoting Action, Black’s Law
Dictionary (6th ed. 1990)). Hence, Kelekolio concluded that
false allegations of sexual activity do not fall under HRE Rule
412. See 74 Haw. at 521, 849 P.2d at 77.9
2. West
In West, defense counsel sought to introduce evidence
regarding a four-year-old’s statement that she had been sexually
9 In Kelekolio, the complaining witness had Down syndrome and functioned at the cognitive level of a four- to seven-year-old. 74 Haw. at 486, 849 P.2d at 63. The defendant sought to introduce evidence that the complaining witness habitually fantasized about sex, had previously reported sexual encounters with an imaginary boyfriend, and had previously reported that she was pregnant when she was not. 74 Haw. at 489-498, 849 P.2d at 64-68. The defendant argued that if the complaining witness previously fantasized sexual events, then the jury could find that she fantasized the alleged sexual assault by the defendant. 74 Haw. at 520, 849 P.2d at 77.
Because the defendant had not presented an offer of proof explaining that he was not seeking to adduce evidence of the complainant’s past sexual behavior, however, this court affirmed the trial court’s exclusion of the proffered evidence. 74 Haw. at 522-23, 849 P.2d at 78.
16 *** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND THE PACIFIC REPORTER ***
assaulted by someone other than the defendant. 95 Hawaiʻi at
454-55, 24 P.3d at 650-51. Defense counsel sought admission of
the evidence, but indicated it was unclear whether the
statements of the four-year-old were true or false. 95 Hawaiʻi
at 455, 24 P.3d at 651.
West initially recognized cases holding that evidence of
false statements of unrelated sexual assaults are not excluded
by HRE Rule 412 because they are not evidence of sexual conduct.
95 Hawaiʻi at 457-58, 24 P.3d at 653-54. But we noted that
courts have made admissibility of sexual assault allegations
dependent on actual falsity and have required a threshold
determination regarding truth or falsity. 95 Hawaiʻi at 458, 24
P.3d at 654.10 We held that:
where 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
10 Some states’ rape shield statutes specifically allow evidence of false sexual assault allegations when the probative value of such evidence outweighs potential prejudice. See ARIZ. REV. STAT. ANN. § 13-1421(A)(5) (2022) (allowing evidence of “false allegations of sexual misconduct made by the victim against others”); IDAHO R. EVID. Rule 412(b)(3) (2022) (allowing “false allegations of sex crimes made at an earlier time”); MISS. R. EVID. Rule 412(b)(2) (2022) (allowing “ false allegations of sexual offenses made at any time before trial by the victim”); OKLA. STAT. tit. 12, § 2412(B)(2) (2022) (allowing “[f]alse allegations of sexual offenses”); VT. STAT. ANN. tit. 13, § 3255(a)(3)(C) (2022) (allowing “evidence of specific instances of the complaining witness’ past false allegations of violations of this chapter”); WIS. STAT. § 972.11(2)(b)(3) (2022) (allowing “[e]vidence of prior untruthful allegations of sexual assault made by the complaining witness”).
Other states’ rape shield statutes do not specifically reference false sexual assault allegations, and admission of such evidence appears dependent on caselaw. See, e.g., Miller v. State, 779 P.2d 87 (Nev. 1989); Clinebell v. Commonwealth, 368 S.E.2d 263 (Va. 1988).
17 *** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND THE PACIFIC REPORTER ***
court is unable to determine by a preponderance of the evidence that the statement is false, the defendant has failed to meet [their] burden, and the evidence may be properly excluded.
95 Hawaiʻi at 460, 24 P.3d at 656.
Hence, West conditioned admissibility of unrelated sexual
assault evidence upon compliance with HRE Rule 412 procedural
requirements even when the defense proffers the evidence based
on falsity. See id. In addition, West imposed a requirement on
trial courts to make a threshold determination as to truth or
falsity and expressly determine falsity before admitting any
such evidence. See id. We indicated we were doing so because
“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 Hawaiʻi at 459, 24 P.3d at 655 (cleaned up).
3. West’s procedural notice requirements have been limited by Pond
Based on West, both the family court and the ICA concluded
that Minor’s failure to file a HRE Rule 412(c)(1) notice or
motion at least fifteen days before trial precluded him from
introducing extrinsic evidence of allegedly false allegations of
sexual assault CW had made to others.
Under the circumstances of this case, however, the
proffered evidence should not have been excluded based on HRE
18 *** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND THE PACIFIC REPORTER ***
Rule 412. This is because the procedural requirements of HRE
Rule 412 have been limited by State v. Pond, 118 Hawaiʻi 452, 193
P.3d 368 (2008).
As noted, the State filed a HRE Rule 412 motion in limine
on February 8, 2019, more than two months before the then-
scheduled April 17, 2019 trial date. When the motion was filed,
it was scheduled to be heard on March 4, 2019. After the motion
in limine was filed, the trial date was continued to June 4,
2019. For some reason, the motion was never heard before the
June 4, 2019 trial date, although the motion was originally
scheduled to be heard well before trial and it appears there
were various pretrial conferences.
Pond, 118 Hawaiʻi 452, 193 P.3d 368, addressed HRE Rule
404(b)’s (2016) requirement that the proponent of “prior bad
act” evidence give “reasonable notice.” In doing so, we
discussed United States Supreme Court precedent regarding the
constitutionality of and reasons for notice requirements in the
context of rape shield statutes like HRE Rule 412:
The rape shield statute, designed to protect victims of rape from being subjected to harassing or irrelevant questions concerning their past sexual behavior, permits a defendant to introduce evidence of [their] own past sexual conduct with the victim if the defendant files a written motion and an offer of proof within ten days after he is arraigned. . . .
The Supreme Court recognized that the rape shield statute implicates the sixth amendment and that, to the extent that it operates to prevent a criminal defendant from presenting relevant evidence, the defendant’s ability to confront adverse witnesses and present a defense is
19 *** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND THE PACIFIC REPORTER ***
diminished. This does not necessarily render the statute unconstitutional. [The Court] observed that the defendant’s right to present relevant evidence may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process.
Pursuant to this rule, the Supreme Court recognized the state’s interest in the policy underlying the rape shield statute's procedural prerequisites—to protect rape victims from surprise, harassment, and invasions of privacy, and permit the prosecution to investigate the evidence. . . . Based on its prior rulings and the state’s interest in the rape shield statute, [the Court] ruled that precluding evidence based on the rape shield statute’s notice requirement is not per se unconstitutional. However, it remanded the case to determine whether the trial court abused its discretion by precluding [the defendant’s] evidence.
Pond, 118 Hawaiʻi at 464-65, 193 P.3d at 380-81 (cleaned up).
Pond recognizes that although constitutional rights
implicated by a rape-shield statute are not automatically
violated by notice requirements, such notice requirements must
further “legitimate interests,” which are to “protect rape
victims from surprise, harassment, and invasions of privacy, and
permit the prosecution to investigate the evidence.” See id.
Pond also recognized that the notice requirement is subject to
an abuse of discretion review. See 118 Hawaiʻi at 461, 193 P.3d
at 377.
Whether or not HRE Rule 412 applies to false allegations of
sexual assault, under the circumstances of this case, it was an
abuse of discretion for the family court to exclude the
proffered evidence based on the procedural notice requirements
of HRE Rule 412. The State knew about the evidence and filed a
HRE Rule 412 motion in limine months before trial. The State’s
20 *** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND THE PACIFIC REPORTER ***
motion and its arguments at the June 4, 2019 hearing indicate it
filed the HRE Rule 412 motion in limine because it had reviewed
the child welfare reports and was aware that evidence regarding
sexual assaults by others could be elicited by Minor. The State
was not surprised and was not precluded from investigating the
evidence it already knew. Thus, it was error to exclude the
evidence based on failure to comply with HRE Rule 412 procedural
notice requirements.
4. West must be clarified
Minor also challenges (1) the family court’s post-trial
determination that it had properly excluded the evidence because
Minor had failed to establish falsity as required by West; and
(2) the ICA’s ruling the family court could make that finding
determination as to falsity.
As discussed, West initially recognized that false
allegations of unrelated sexual assaults are not excluded by HRE
Rule 412. See 95 Hawaiʻi at 457-58, 24 P.3d at 653-54. Yet, in
addition to requiring compliance with HRE Rule 412 procedural
requirements, West held that “where 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
21 *** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND THE PACIFIC REPORTER ***
evidence that the statements are false.” 95 Hawaiʻi at 460, 24
P.3d at 656.
This holding of West raises significant issues. As
recognized by Kelekolio and initially in West, false allegations
of sexual assault are not sexual conduct, which is the subject
of HRE Rule 412. West also implicates the constitutional rights
of criminal defendants.11 Additionally, as a practical matter, a
trial court may not be able to ascertain whether a complaining
witness’s allegations of sexual assault by others are true or
false. And even in a bench trial, as in this case, it can be
error for the court to reject evidence which, if admitted, would
present an essential factual issue for itself as the trier of
fact. See Abion, 148 Hawaiʻi at 448, 478 P.3d at 273.
11 Such rights include rights to confrontation, cross-examination, and to present a complete defense, which also apply to minors in juvenile proceedings. For example, we have noted:
HRE 412 cannot override the constitutional rights of the accused. Under sections 5 and 14 of Article I of our State Constitution, appellant’s right of confrontation includes a right to appropriate cross-examination of the complaining witness.
State v. Calbero, 71 Haw. 115, 124, 785 P.2d 157, 161 (1989).
For adults, the constitutional right to a jury trial may also be implicated. For example, we have stated:
The rule requiring the submission of factual determinations to the jury if there is any evidence upon which the jury may act is based on the principle that credibility of witnesses and weight of the evidence are for the jury to decide. The court should not invade the jury’s province of making factual determinations.
State v. Riveira, 59 Haw. 148, 154, 577 P.2d 793, 797 (1978) (citation omitted).
22 *** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND THE PACIFIC REPORTER ***
This case is an example of the difficulty of applying West.
We therefore revisit and clarify West as follows: If a
defendant seeks to admit a complaining witness’s false
allegations of sexual assault, then admissibility is not subject
to HRE Rule 412 or West. Defendants seeking to admit such
evidence must make it clear the evidence is being proffered for
its falsity. We do not address the applicability of other rules
of evidence, including HRE Rule 403 (2016).12 A court must also,
however, consider the constitutional rights of the defendant.13
When a defendant seeks to admit evidence of sexual assault
allegations based on their truth or where truth or falsity is
unclear, the admission of such evidence is subject to HRE Rule
412. However, we abrogate West’s requirement that the trial
court make a preliminary determination based on a preponderance
of the evidence that the statements are false before allowing
admission. For such evidence, HRE Rule 412 explicitly requires
compliance with HRE Rule 412(c) procedural requirements as well
as consideration of a defendant’s constitutional rights. See
HRE Rule 412(b)(1). HRE Rule 403 considerations also come into
12 HRE Rule 403 provides, “Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.”
13 See supra note 11.
23 *** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND THE PACIFIC REPORTER ***
play, but are also subject to a defendant’s constitutional
rights.
If any evidence of a complaining witness’s allegations of
sexual assault by others is admitted in jury trials, the court
should give appropriate limiting instructions.
In this case, Minor proffered extrinsic evidence that CW
had made false statements of sexual assault against others. For
the reasons explained above, we hold that this evidence was not
subject to HRE Rule 412 or West.14 The exclusion of the evidence
proffered in this case was not harmless beyond a reasonable
doubt. Minor’s adjudication as a law violator must therefore be
vacated.
C. The insufficient evidence argument is without merit
Finally, in a conclusory fashion, Minor asserts that there
was insufficient evidence for the family court to adjudicate him
a law violator. Appellate challenges to the sufficiency of
evidence must always be decided. State v. Davis, 133 Hawaiʻi
102, 116, 324 P.3d 912, 926 (2014).
Viewing the record in the light most favorable to the
State, there was sufficient evidence to support the family
14 The foundational requirements of HRE Rule 613(b) had been met. See supra note 8. The issue of whether any of the proffered evidence could or should have been excluded based on HRE Rule 403, consistent with Minor’s constitutional rights, is not before us.
24 *** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND THE PACIFIC REPORTER ***
court’s adjudication of Minor as a law violator on Counts 1,2,
and 4. This argument on certiorari is devoid of merit.
V. Conclusion
Hence, we vacate the ICA’s October 30, 2020 judgment on
appeal as well as the family court’s June 5, 2019 decree, July
Walter J. Rodby /s/ Mark E. Recktenwald for petitioner /s/ Paula A. Nakayama Brian R. Vincent for respondent /s/ Sabrina S. McKenna
/s/ Michael D. Wilson
/s/ Todd W. Eddins