State v. Gallagher.

463 P.3d 1119, 146 Haw. 462

• Court: Hawaii Supreme Court
• Decided: May 15, 2020
• Docket: SCWC-14-0001300
• Status: Published

Opinion

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Electronically Filed Supreme Court SCWC-XX-XXXXXXX 15-MAY-2020 10:32 AM

IN THE SUPREME COURT OF THE STATE OF HAWAIʻI

---o0o---

STATE OF HAWAIʻI, Respondent/Plaintiff-Appellee,

vs.

JOHN LESLIE GALLAGHER, Petitioner/Defendant-Appellant.

SCWC-XX-XXXXXXX

CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CAAP-XX-XXXXXXX; CR. NO. 13-1-0972(3))

MAY 15, 2020

McKENNA, POLLACK, AND WILSON, JJ., WITH RECKTENWALD, C.J., DISSENTING, AND WITH NAKAYAMA, J., DISSENTING

OPINION OF THE COURT BY POLLACK, J.

Under Hawaiʻi Rules of Evidence Rule 403, relevant

evidence may be excluded if its probative value is, inter alia,

substantially outweighed by the danger of unfair prejudice. In

this case, the defendant was charged with criminal property ***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***

damage in the second degree for damaging the complainants’

vehicle. Over the defense’s objections, the circuit court

allowed the State to present evidence during trial of four prior

incidents of aggressive and erratic behavior by the defendant

directed at the complaining witnesses and their home. The

circuit court also permitted the State to adduce evidence of the

fear the complaining witnesses experienced as a result of the

prior incidents and the various countermeasures they undertook

in response to these incidents. The defendant was convicted as

charged, and the conviction was affirmed on appeal.

On review, we conclude that the risk of unfair

prejudice posed by the introduction of the four prior incidents

substantially outweighed their limited probative value. We

therefore vacate the Intermediate Court of Appeals’ judgment on

appeal and the circuit court’s judgment of conviction and

sentence, and the case is remanded to the circuit court for

further proceedings consistent with this opinion.

I. BACKGROUND & TRIAL

On December 30, 2013, John Leslie Gallagher was

charged in the Circuit Court of the Second Circuit (circuit

court) with criminal property damage in the second degree in

violation of Hawaiʻi Revised Statutes (HRS) § 708-821(1)(b)

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(Supp. 2012)1 based on an incident that occurred on September 15,

2013. Gallagher pleaded not guilty to the charge.

Prior to trial, Gallagher moved for “an order

excluding from use at trial testimonial or documentary evidence

relating to any other ‘acts’, bad or otherwise” involving him as

irrelevant and unfairly prejudicial under Hawaiʻi Rules of

Evidence (HRE) Rules 404 and 403. Specifically, Gallagher

sought to preclude “any testimonial or documentary evidence

regarding alleged incidents” on four specified dates between May

and September 2013 involving the two complaining witnesses or

other persons.

Thereafter, the State filed two notices of intent

pursuant to HRE Rules 404(b) and 608(b) stating it would rely on

evidence of four prior incidents of “Harassment,” one incident

of “Harassment By Stalking,” and one incident of “Harassment By

Stalking, Simple Trespass, Criminal Tampering and Disorderly

Conduct” that occurred between March 24 and September 19, 2013.2

1 HRS § 708-821(1)(b) provides in relevant part as follows: “A person commits the offense of criminal property damage in the second degree if by means other than fire: . . . . The person intentionally or knowingly damages the property of another, without the other’s consent, in an amount exceeding $1,500[.]” 2 The notices collectively indicated that the State intended to rely upon six incidents, including one that occurred several days after the events giving rise to the case. During the hearing on the motions in limine, however, the State informed the court that it did not intend to introduce any evidence of the last incident at trial. Ultimately, the State elicited testimony regarding four of the prior incidents.

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The State contended evidence of the prior incidents was relevant

and admissible to demonstrate Gallagher’s “motive, opportunity,

intent, preparation, plan, knowledge, identity, modus operandi,

and/or absence of mistake or accident[,] as well as attacking

his credibility as probative of untruthfulness.”

At a hearing on the pretrial motions,3 the State

contended the sole issue at trial was going to be Gallagher’s

state of mind and his intent to cause the amount of damage to

the complainants’ vehicle that resulted from his actions on the

night in question. The State asserted that evidence of the five

prior incidents would show the conduct underlying the charged

offense was not an isolated event, accident, or mistake and that

the prior incidents culminated in the incident that resulted in

the criminal property damage charge. The court asked the State

to elaborate, and the State responded as follows:

[B]asically what happened over the course of about six or seven months, this individual, from out of the blue, just started appearing at our complaining witness’s house, essentially taking them to the point where they had to get a protective order against him, installed a video surveillance system on their house, basically because he had come around so many times threatening them . . . .

According to the State, it was important for the jury to hear

about the prior incidents to understand Gallagher’s state of

mind when he damaged the complainants’ vehicle.

3 The Honorable Joseph E. Cardoza presided over the circuit court proceedings in this case.

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In addition to his written motions in limine,

Gallagher orally objected to the introduction of the prior

incidents stated in the State’s notices of intent, arguing that

they were not relevant and were more prejudicial than probative

because there would be no question as to his identity or whether

his actions were the result of an accident or mistake. Evidence

of the prior incidents, Gallagher maintained, did not go to the

elements that the State needed to prove or to any defenses, and

it did not fall within an exception to the rule against

character evidence. Additionally, Gallagher argued that the

prior incidents were dissimilar to the charged offense because

they did not involve property damage. At the conclusion of the

hearing, the circuit court denied the defense’s motion to

exclude the incidents, holding without any elaboration that the

five prior incidents fell within the exceptions to HRE Rule

404(b). The court did not exclude any evidence regarding the

prior incidents. The only matters excluded were opinions

expressed by a complaining witness to the police regarding

Gallagher’s mental instability and statements that Gallagher had

made that raised concerns about his mental health, both of which

the State had no objection to excluding.

A jury trial commenced in August 2014. In its opening

statement, the State informed the jury that the evidence would

show that on September 15, 2013, Gallagher charged up the

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complainants’ driveway and kicked their vehicle multiple times

on the passenger’s side and then on the driver’s side. The

State related that the jury would hear and see that Gallagher’s

kicks left numerous dents on the complainants’ vehicle. The

State indicated that the jury was “probably going to hear the

defense agree with pretty much 99 percent of what I just told

you.”

The State also told the jury that the night of the

incident was not the first time the complainants had seen

Gallagher. The defense’s objection to this statement was

overruled. The State proceeded to inform the jury that

Gallagher had become an issue in the complainants’ lives over

the course of the six months preceding the incident, requiring

the complainants to call the police numerous times, file

numerous police reports, tint the windows of their home, and

install an alarm system and a video surveillance system because

of their fear. The prosecutor then told the jury that the

Normans had actually sought a protective order against

Gallagher. Defense counsel’s objection to this statement was

sustained, and the statement was stricken.

In the defense’s opening statement, counsel stated

that it was not disputed that Gallagher went to the

complainants’ residence on September 15, 2013, and kicked their

vehicle. Defense counsel told the jury that the only issue in

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dispute was the amount of damage that Gallagher intended to

cause. The defense submitted that the evidence would show that

Gallagher did not intend to cause more than $1,500 in damage and

that he was not aware and did not believe that he would damage

the vehicle to that extent.

Following opening statements, the State presented the

testimony of one of the complainants, Jessica Norman

(Ms. Norman). Ms. Norman testified that Gallagher first came

into her life on March 24, 2013, which prompted Gallagher to

renew his objection on HRE Rules 404(b) and 403 grounds. A

bench conference ensued, and Gallagher argued that even if the

prior incidents were relevant, the court was required to

determine whether the probative value of the evidence was

substantially outweighed by the danger of unfair prejudice.

Gallagher maintained that identification was not at issue in the

case, the prior incidents did not relate to Gallagher’s state of

mind as to knowing the amount of the damages, the prior

incidents involved different facts, their introduction would

confuse the issues and mislead the jury, and there was other

evidence regarding the damages.

[DEFENSE COUNSEL]: Judge, I would just object. I know this issue was raised at motions in limine, but I would just make an objection under 404(b). Your Honor, even assuming that these prior incidents are relevant, I believe the Court still has to determine whether there’s unfair prejudice to my client and . . . whether the need for it substantially outweighs any danger of unfair prejudice.

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I would submit, you know, in this case, identification is not an issue. The prior incidents do not go to state of mind as far as knowing the amount of the damage. The facts are different, and . . . it would confuse the issue, mislead the jury. And . . . there’s other evidence that can go towards the damages[.]

Gallagher indicated that he would like to register a running

objection under HRE Rule 404(b) regarding any prior incidents.

In response, the State contended that the “escalating series of

events” were “highly probative” of Gallagher’s mindset and his

intent on the night of the incident.

The court overruled Gallagher’s objections. The court

reasoned that without evidence of the prior incidents, there was

no context or explanation for the charged conduct because the

parties were not otherwise acquaintances. Further, stated the

court, the prior incidents were highly probative of Gallagher’s

intent to cause the kind of damage that occurred, and in any

event the State had the burden of proving each element of the

offense beyond a reasonable doubt regardless of whether some of

them were conceded in the defense’s opening statement. The

court concluded that based on these reasons and the “entire 401,

403, 404 analysis” it would allow in the evidence of the prior

incidents. The court did not indicate that it would not allow

defense counsel’s request for a continuing objection.

Following the bench conference, the circuit court

issued a cautionary instruction to the jury regarding the

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evidence of the prior incidents. The court instructed the jury

that the evidence could be considered only on the issue of the

defendant’s motive, opportunity, intent, preparation, or plan to

commit the charged offense, and as to the identity of the person

who may have committed the charged offense. The court further

instructed the jury not to consider the evidence for any other

purpose or to conclude that the defendant was a person of bad

character and therefore must have committed the charged offense.

Ms. Norman then testified in detail about four of her

prior interactions with Gallagher. Ms. Norman described her

first encounter with Gallagher on March 24, 2013, when she saw

him walking toward her home. When she opened the front door and

asked if he needed help with anything, Gallagher started

screaming at her, saying: “You’re not going to have your job by

next week. You hear me. You’re not going to have your job.”

Ms. Norman testified that she immediately closed the door,

explaining that she was “incredibly confused and scared,” and

that she thereafter filed a police report.

Ms. Norman then described an incident that occurred on

May 9, 2013, testifying that she looked out her window after she

heard yelling from the street. She witnessed Gallagher in a

confrontation with one of her neighbors, and when Gallagher saw

her through the window, he started screaming obscenities at her

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and ran toward the house. Ms. Norman explained that she called

the police, but Gallagher was gone by the time they showed up.

Ms. Norman testified that she next saw Gallagher when

she was again looking out her window on August 16, 2013. She

stated that Gallagher was parked in his car in front of her

driveway, and she witnessed him shake his fist at the house and

give it “the finger” before speeding off.

Ms. Norman lastly recounted an incident that took

place on September 4, 2013. She again saw Gallagher parked

blocking her driveway, and this time she witnessed him make

erratic movements as if he were going to ram his vehicle into

the cars parked on the property. Gallagher again sped off,

Ms. Norman testified, and he was gone by the time she called the

police.

Ms. Norman stated that, in total, she filed six police

reports against Gallagher from March 24 through September 15,

2013. These prior incidents terrified her because Gallagher

appeared to show up more frequently and become more aggressive

as time progressed. Ms. Norman testified that she did not know

what Gallagher was capable of, and that she and her husband were

scared for their lives. As a result of Gallagher’s conduct,

they tinted the windows on the ground floor of their home and

installed an alarm system and a surveillance system with seven

different cameras around the house.

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As to the incident underlying the charge, Ms. Norman

testified that on September 15, 2013, she went out on her lānai

after she heard a car nearby and her dog began to bark. She saw

Gallagher running at full speed toward the house screaming

obscenities at her. He then started “wailing on the car,”

kicking and punching it approximately fourteen to sixteen times.

Ms. Norman described the dents in the car as “massive,” about

four or five inches deep, and stated that Gallagher’s kicks and

punches were so loud that she thought he was using a baseball

bat. Gallagher had also knocked the top of the back of the

truck bed using his fist. Ms. Norman explained that, after he

finished striking the car, Gallagher walked away, “flipped the

house the bird,” and then got in his car and left. During

Ms. Norman’s testimony, two CDs containing video surveillance

footage of the incident were admitted into evidence and

published to the jury; Ms. Norman provided a narration of the

events shown in the footage while the video was played for the

jury.

The State then called as a witness Garron Norman (Mr.

Norman), Ms. Norman’s husband, who testified that he came to

know Gallagher “[f]rom a series of escalating events that were

taking place at [their] residence.” Because of these events

that were happening throughout the summer and early spring, he

and Ms. Norman were in a heightened state of alert on September

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15, 2013. Mr. Norman recounted the events of that evening,

which coincided with the testimony that had been given by

Ms. Norman.

Mr. Norman testified that after the incident, he saw

multiple dents all along the front quarter panels to the rear of

the vehicle around the tailgate and up the driver’s side of the

vehicle. A series of photographs were admitted into evidence

depicting the damage to the pickup, and Mr. Norman pointed out

and described the dents, relating that there were probably about

seven to eight “significant dents,” approximately two to four

inches deep, that were caused by Gallagher.

Gordon Yoshizawa, the owner of an auto repair shop,

testified that he personally inspected the Normans’ vehicle the

day after the incident and estimated the cost of repairs to be

$4,583.04. Additionally, Matthew Little, an automotive damage

specialist for the Normans’ insurance company, testified that

based upon his inspection the estimated repair cost for the

damage done to the vehicle was $3,036.26.4

After the State rested, Gallagher testified that in

the early evening of September 15, 2013, he was at the house of

a friend who lived next door to the Normans. He walked to the

4 Mr. Norman stated that the Normans received an insurance payment of $2,536.26 for the damage, which reflected a $500 deductible.

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Normans’ house, lost his composure, kicked the passenger side of

the Normans’ truck three times, and then kicked between the rear

wheel and the door on the other side of the truck a few times.

According to Gallagher, he was 5 feet 9 inches tall, weighed 160

pounds, and wore a pair of cross-trainers on the night of the

incident. He stated he used the inside of his foot and

described the kicks as “more like a soccer kick.” He said that

the incident lasted for a total of ten seconds and that he only

“put a couple scuff marks on the truck.” Gallagher testified

that he had a degree in automotive technology, the damage he

caused amounted to only about $300 or $400, and a “detail job to

buff it out” or a “wax job” would have taken care of the damage

to the vehicle. Gallagher further stated that he did not intend

to do extensive damage and disputed that his kicks left dents in

the truck that amounted to $1,500 worth of damage.

During the reading of the jury instructions, the

circuit court provided a general instruction on the use of

evidence admitted for a limited purpose. The court then

instructed the jury that the evidence of Gallagher’s prior

crimes or bad acts was to be considered only on the issue of his

motive, opportunity, intent, preparation, or identity and not to

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conclude that he was a person of bad character and therefore

must have committed the charged offense.5

In its closing argument, the State indicated that the

case boiled down to whether Gallagher intentionally or knowingly

caused $1,500 worth of damage to the Normans’ vehicle. The

State argued that the evidence against Gallagher, including the

prior acts Gallagher committed, was “very overwhelming.” The

evidence of the prior incidents, the State explained, was

presented to show Gallagher’s intent and the Normans’ perception

of Gallagher’s state of mind. The State asserted that what

occurred was not an isolated incident but instead was an

escalating series of events that took place over six months.

The jury was reminded by the State that it had heard from the

Normans about the number of times Gallagher came into their

lives, and from the Normans’ perspective he was becoming more

dangerous each time he showed up. The State highlighted the

several countermeasures the Normans had taken such as installing

a surveillance system and an alarm system and tinting the

windows of their house. This was not an isolated incident, the

State reiterated, and Gallagher was demonstrating increasing

levels of anger and hostility. Gallagher intended to do as much

5 The court also instructed the jury on the elements of the included offenses of criminal property damage in the third and fourth degrees.

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damage as he physically could on the night in question, the

State argued, and his actions were “premeditated,” “cold,” and

“calculated.”

Defense counsel argued in closing argument that the

only disputed issue in the case concerned Gallagher’s intent

regarding the amount of the damage he caused to the Normans’

truck. While Gallagher admitted to kicking the Normans’

vehicle, counsel maintained, it was not enough that Gallagher

kicked the vehicle. The State also had to prove beyond a

reasonable doubt that Gallagher acted with the intent or

knowledge that he would cause over $1,500 in damage. Counsel

argued that the truck already had scratches and dents and that

Gallagher could not have intended to cause over $1,500 worth of

damage, adding that the damage he did cause was only cosmetic in

nature.

The jury convicted Gallagher as charged. Gallagher

was sentenced to a five-year term of imprisonment consecutive to

a term he was currently serving. Gallagher appealed from the

circuit court’s October 31, 2014 judgment of conviction and

sentence.

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II. ICA PROCEEDINGS

On appeal, Gallagher asserted that the evidence of the

four prior incidents of his misconduct introduced at trial was

irrelevant and far more prejudicial than probative.6 Gallagher

contended that the circuit court’s reasoning that the prior

incidents would provide context was not one of the exceptions

for introducing character evidence and that the evidence of the

prior incidents was not relevant to any disputed issue.

Gallagher submitted that the video footage and his own testimony

eliminated any dispute as to his general intent to damage the

property and there was no question as to identity, motive,

opportunity, intent, plan, or preparation.

Additionally, Gallagher argued that the potential for

unfair prejudice from the admission of the prior incidents

substantially outweighed any limited probative value they may

have had. Gallagher contended that the need for such evidence

was minimal because the State presented the testimony of the two

complaining witnesses, photographs of the damage to the vehicle,

and video footage that showed the incident from beginning to

end. The evidence of the prior incidents “probably roused the

jury to hostility” against him and most likely elicited sympathy

6 Gallagher raised other issues to the ICA, but these issues are not raised on certiorari review. They are therefore not addressed.

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for the Normans based on their prior experiences with him,

Gallagher asserted, and thus such evidence was highly

prejudicial.

The State responded that evidence of the prior

incidents was relevant under HRE Rule 401 to provide context for

the incident underlying the charge, which made it more probable

that Gallagher intentionally or knowingly caused more than

$1,500 worth of damage to the Normans’ vehicle. The State

submitted that the evidence was also properly admitted under HRE

Rule 404(b) to prove that Gallagher intended to cause the amount

of damage required for criminal property damage in the second

degree and that his conduct was not an accident or mistake.

And, the State asserted that the evidence of the prior incidents

was admissible under the relevant factors of HRE Rule 403,

including that there was a substantial need for the evidence,

there was no alternative means of showing context, and the

evidence was not likely to rouse the jury to hostility against

Gallagher.

On December 20, 2017, the ICA issued a summary

disposition order.7 Citing HRE Rule 401, the ICA determined that

Gallagher was incorrect to assume that evidence is only relevant

7 The ICA’s summary disposition order can be found at State v. Gallagher, No. CAAP-XX-XXXXXXX, 2017 WL 6507180 (App. Dec. 20, 2017) (SDO).

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to prove matters in dispute. The State has the burden to prove

beyond a reasonable doubt each element of the offense, the ICA

stated, and Gallagher did not offer a stipulation as to any of

the elements of the charged offense. In any event, the ICA

added, Gallagher’s intent was in dispute. Based on its review

of the record, which included the giving of limiting

instructions to the jury regarding the evidence of the prior

incidents, the ICA concluded that the circuit court did not

abuse its discretion in admitting such evidence.

Gallagher challenges the ICA’s holding on certiorari

review, arguing that the unfair prejudice caused by the

introduction of the four prior incidents substantially

outweighed its minimal probative value and had a tendency to

suggest a decision based on an improper basis.

III. STANDARDS OF REVIEW

“[A] trial court’s balancing of the probative value of

prior bad act evidence against the prejudicial effect of such

evidence under HRE Rule 403 (1993) is reviewed for abuse of

discretion.” State v. Cordeiro, 99 Hawaiʻi 390, 404, 56 P.3d

692, 706 (2002) (quoting State v. Torres, 85 Hawaiʻi 417, 421,

945 P.2d 849, 853 (App. 1997)). When such an abuse of

discretion is identified, it is grounds to vacate a conviction

unless it is harmless beyond a reasonable doubt. State v.

Kazanas, 138 Hawaiʻi 23, 43, 375 P.3d 1261, 1281 (2016).

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IV. DISCUSSION

A. The Circuit Court Abused Its Discretion in Its Application of HRE Rule 403.

Over strong objections by the defense, the circuit

court allowed the admission of four prior incidents that

involved aggressive, obscenity-laden, and angry misconduct by

Gallagher toward the Normans. The State and its witnesses

repeatedly characterized the conduct as escalating. The

testimony included the specific details of each incident in

which Gallagher had harassed the family. Ms. Norman testified

that Gallagher’s actions during the previous incidents terrified

her and prompted the family to take a range of protective

countermeasures, including filing six different police reports,

tinting the windows in the garage and on the ground floor of

their home, and installing an alarm and surveillance system.

Under HRE Rule 403, 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.” In weighing the

probative value versus the prejudicial effect of prior bad acts

admitted for one of the purposes authorized under HRE Rule

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404(b) (Supp. 2012),8 we have stated that a number of factors

must be considered, including

the strength of the evidence as to the commission of the other crime, the similarities between the crimes, the interval of time that has elapsed between the crimes, the need for the evidence, the efficacy of alternative proof, and the degree to which the evidence probably will rouse the jury to overmastering hostility.

State v. Behrendt, 124 Hawaiʻi 90, 106, 237 P.3d 1156, 1172

(2010) (quoting State v. Renon, 73 Haw. 23, 38, 828 P.2d 1266,

1273 (1992)).

While these factors provide guidance as to the

elements to consider, the court’s underlying HRE Rule 403

evaluation remains whether the probative value of the evidence

of prior acts is substantially outweighed by its potential for

unfair prejudice. Each factor must therefore be considered in

light of the purpose for which the evidence was offered--here,

8 HRE Rule 404(b) provides as follows:

(b) Other crimes, wrongs, or acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible where such evidence is probative of another fact that is of consequence to the determination of the action, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, modus operandi, or absence of mistake or accident. In criminal cases, the proponent of evidence to be offered under this subsection shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the date, location, and general nature of any such evidence it intends to introduce at trial.

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to prove Gallagher’s state of mind with respect to the extent of

the damage caused to the Normans’ vehicle.

As to the first factor, the strength of the evidence

as to the commission of the other conduct, Ms. Norman testified

that she witnessed firsthand Gallagher’s behavior on the prior

occasions, and Mr. Norman confirmed that there had been a

“series of escalating events” involving Gallagher. Because

Gallagher does not deny that the prior incidents occurred and

submitted no contrary evidence, the first factor does not weigh

against admittance.

With regard to the second and third factors--the

similarities and interval of time between the crimes--Gallagher

acknowledges the time that elapsed between the prior incidents

and the one underlying the criminal charge in this case was

arguably not long. But he argues that the prior incidents were

not similar to the underlying incident, as they did not involve

property damage.

Here, Gallagher’s identity, actions, and general

intent to do damage were not disputed.9 The prior incidents were

9 Justice Nakayama’s dissent argues that “every element of the charged offense was ‘at issue’ for the purposes of” admitting the evidence of prior incidents under HRE Rules 404(b) and 403. Nakayama, J., Dissenting at 12 [hereinafter Dissent]. While it is true that the State must prove all elements of an offense, other bad acts are not admissible to prove an element when the element is not disputed in the evidence in the case. See, e.g., State v. Calara, 132 Hawaiʻi 391, 402-04, 322 P.3d 931, 942-44 (2014) (holding that two prior incidents of misconduct should have been excluded under HRE

(continued . . .)

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therefore relevant only to demonstrate the degree of Gallagher’s

hostility toward the Normans and thereby increase the likelihood

that he intended to do significant damage to their property.

(. . . continued)

Rule 404(b) because intent and lack of consent were not disputed); State v. Veikoso, 126 Hawaiʻi 267, 276-77, 270 P.3d 997, 1006-07 (2011) (concluding that evidence involving another complaining witness would not be admissible to prove identity because identity was not disputed); State v. Castro, 69 Haw. 633, 645, 756 P.2d 1033, 1042 (1988) (holding that, when “the identity of the perpetrator of the crimes was not denied, [] the admission of the other crimes evidence as proof of modus operandi,” including plan and preparation, “cannot be justified”). Here, the element of identity and Gallagher’s conduct were not only conceded by the defense in its opening statement and acknowledged by the State’s opening statement, but the evidence of the conduct was recorded in a video and testified to by two eyewitnesses. The dissent’s contention that an unstipulated element “like identity” in this case renders the element in dispute for purposes of HRE Rule 404(b) analysis, dissent at 13 n.5, is contrary to both our caselaw, Calara, 132 Hawaiʻi at 402-04, 322 P.3d at 942-44; Veikoso, 126 Hawaiʻi at 276-77, 270 P.3d at 1006-07; Castro, 69 Haw. at 645, 756 P.2d at 1042, and to Professor Addison Bowman’s evidence treatise, which we have cited for guidance in this area. Calara, 132 Hawaiʻi at 403, 322 P.3d at 943. As stated by Professor Bowman, “Assessment of the dispute factor thus requires consideration of the precise defensive claims being made in the case.” Addison M. Bowman, Hawaii Rules of Evidence Manual § 404-3[3][E], at 4-62 (2018-2019 ed.). Here, Gallagher did not dispute he was the person causing the property damage and, in fact, admitted that he was. Nevertheless, the dissent maintains that the prosecutor cannot know what a defendant will say, and Gallagher may have taken the stand and denied being the person who kicked the car. Dissent at 13-14 n.5. This type of justification would lead to the wholesale admission of propensity evidence. As Professor Bowman has aptly observed:

Identity is always a “fact of consequence” in a criminal case because it characterizes the elemental proposition that the accused (not someone else) committed the crime. That being so, a proponent’s assertion that evidence of another crime proves identity is not meaningful unless accompanied by some other theory that heightens probative value and takes the matter beyond mere propensity. This is because the direct inferential link between prior crime and identity, without an intermediate inference such as motive, plan, or signature, can only be understood in terms of “action in conformity therewith” on the present occasion. In other words, “identity,” without more, is likely propensity in sheep’s clothing.

Bowman, supra, § 404–3[2][F], at 4-55.

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However, the closeness in time and alleged similarity between

the prior acts and the incident giving rise to this case is at

most only marginally probative of this point.

Ms. Norman testified that the prior incidents occurred

at her residence over a six-month period starting on March 24,

2013, with the final incident occurring eleven days before the

incident in this case. She further stated that the incidents

involved Gallagher yelling obscenities at her, gesturing angrily

toward her and her house, and making erratic movements using his

car. The incidents shared some similarities in that they all

occurred at the Normans’ residence and involved hostile actions

by Gallagher towards the Normans, but none of the prior

incidents involved destruction of property. By contrast, the

underlying incident in this case involved Gallagher causing

property damage to the Normans’ vehicle. Accordingly, the prior

incidents, having not involved physical damage, had no relation

to Gallagher’s awareness or knowledge of the extent of damage

his actions would cause in the underlying incident, and they

were therefore not probative of this issue.10

10 The state of mind requirement for criminal property damage may alternately be established by demonstrating that Gallagher had knowledge or awareness that his actions would cause damage in excess of $1,500. See HRS § 708-821(1)(b).

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Further, when prior misconduct is similar to the

current offense and is offered to confirm identity or

voluntariness by establishing a common methodology or scheme, a

close connection in time and nature is highly probative only

because it increases the likelihood that the same actor

committed both instances of misconduct. See, e.g., State v.

Acker, 133 Hawaiʻi 253, 277, 327 P.3d 931, 955 (2014) (stating

that prior incidents where defendants also robbed lone men, left

them at remote locations, and escaped in their victims’ vehicles

were admissible to show common plan and lack of coercion); State

v. Austin, 70 Haw. 300, 307, 769 P.2d 1098, 1102 (1989) (holding

that the similarity between a defendant’s earlier drug dealing

and the drug dealing offense with which the defendant was

charged was extremely relevant to prove both a plan and a common

scheme). However, a close proximity in time and nature between

the prior misconduct and the charged offense may also increase

the likelihood that a jury will consider the previous conduct to

conclude that the defendant has a propensity for committing such

acts, which is a prohibited inference. See HRE Rule 404(b)

(“Evidence of other crimes, wrongs, or acts is not admissible to

prove the character of a person in order to show action in

conformity therewith.”); State v. Murray, 116 Hawaiʻi 3, 20, 169

P.3d 955, 972 (2007) (holding that “the risk of tainting the

jury verdict with evidence of prior [misconduct] is of especial

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concern when the current charge is for the same crime of which

the defendant was previously” implicated).

Thus, when the evidence is not offered for a purpose

for which similarity in time and nature is probative, a close

unity between the acts potentially weighs against admitting the

evidence when it increases the chances of unfair prejudice. See

State v. Castro, 69 Haw. 633, 645, 756 P.2d 1033, 1042 (1988)

(holding that because “the identity of the perpetrator of the

crimes was not denied, [] the admission of the other crimes

evidence as proof of modus operandi cannot be justified”). In

this case, similarity as to location of all the prior incidents

and as involving the same complainants, and the closeness in

time of the prior incidents to the underlying offense,

exacerbated the unfair prejudice as it increased the likelihood

that the jury would conclude that Gallagher had a propensity for

committing such acts while adding virtually no probative value

as to the issue of Gallagher’s intent to cause the amount of

damage caused. Accordingly, because of the lack of probative

value of the prior misconduct evidence and its accompanying risk

of unfair prejudice, these factors--similarities of crimes and

interval of time between them--do not weigh in favor of

admission of the prior acts of misconduct.

The final three factors in our evaluation concern the

need for the evidence and, relatedly, the availability of

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alternative evidence on the same point, as well as the

likelihood that the evidence will inspire ill-will in the jury

toward the defendant. Castro, 69 Haw. at 644, 756 P.2d at 1041.

As discussed, the only disputed issue at trial to

which the prior incidents were relevant was the extent of the

damage Gallagher intended to cause or of his awareness of

causing such damage. The occurrence of the prior incidents and

their escalating nature were only marginally probative insofar

as they demonstrated the extent of Gallagher’s ongoing hostility

toward the Normans and his general intention to cause damage to

their property during the underlying incident. However,

extensive surrounding details of the incidents had no bearing on

this issue. Ms. Norman’s testimony included a range of highly

prejudicial information that was lacking in probative value as

to Gallagher’s state of mind, including the Normans’ repeated

calling of police regarding the incidents; their filing of six

police reports involving harassment; the numerous protective

measures installed in their home, including the tinting of

windows and the installation of a surveillance system with seven

video cameras and an alarm system; and--perhaps most

prejudicial--the recounting of the Normans’ ongoing fear of

Gallagher and Ms. Norman’s statement that the prior incidents

terrorized her.

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The circuit court concluded that “practically

speaking, there aren’t any other means or alternatives that

would permit the explanation or background to what was going on,

on the evening in question.” However, even assuming that there

was minimal probative value in admission of the prior

misconduct, the State could have elicited a much less elaborate

recounting of the prior incidents, greatly limiting testimony to

the aspects of the incidents that ostensibly bore on Gallagher’s

state of mind. Mr. Norman, for example, testified that he came

to know Gallagher “[f]rom a series of escalating events that

were taking place at our residence.” This testimony essentially

encapsulated the relevant aspects of the previous incidents in

that it demonstrated that Gallagher had repeated, escalating,

hostile interactions with the Normans.

It is noted that the explanation concerning the prior

interactions between the Normans and Gallagher did not require

specific wording. The incidents could have been characterized

by the prosecutor’s questions as unwanted encounters, unprompted

altercations, or any number of other terms. Regardless of the

phrasing, testimony significantly more narrow could have been

elicited to capture the contended relevance of the prior

incidents while carrying none of the unfair prejudice that arose

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from the specific descriptions of Gallagher’s behavior and the

fear and countermeasures described by the Normans.11

Further, again assuming some probativeness of the

prior misconduct, the number of prior incidents should have been

limited to the minimum sufficient to obtain the asserted

probative value the conduct offered. Instead, four prior

incidents were admitted, despite the lack of probative value of

the multiple instances of prior misconduct. See State v.

Kazanas, 138 Hawaiʻi 23, 43, 375 P.3d 1261, 1281 (2016) (holding

it was an abuse of discretion to admit evidence of past abuse of

household member when “[a]lternative evidence of [a prior]

assault incident, which the State was allowed to present, was

11 The dissenting opinion of Justice Nakayama notes the obvious proposition that “neither the trial court nor the appellate court should dictate the exact wording of a complaining witness’s testimony or reframe how the State presents its case.” Dissent at 18 n.7. However, as the dissent acknowledges, “it is the trial court’s duty to exclude unduly prejudicial testimony[.]” Id. Thus, in comporting with the court’s mandate, the prosecutor should have elicited the evidence in a manner that would not have resulted in the admission of unduly prejudicial evidence. We recently observed in State v. Williams, a case in which the trial court had excluded evidence of the involvement of Child Welfare Services (CWS), that when the State chose to call a detective and social worker to testify, “the State should have been careful not to elicit evidence” regarding involvement of CWS and “should not have asked [the doctor] whether she had alerted authorities to elicit her response that [CWS] had been contacted.” 146 Hawaiʻi 62, 73, 456 P.3d 135, 146 (2020); cf. State v. Miyasaki, 62 Haw. 269, 284 n.15, 614 P.2d 915, 924 n.15 (1980) (“The prosecutor is obviously in a position to tailor his questions, consciously or otherwise, on the basis of his knowledge of the defendant’s prior testimony and can do so without any overt reference to the testimony given under immunity.”); Am. Bar Ass’n, Criminal Justice Standards for the Prosecution Function § 3-6.6(d) (4th ed. 2017) (“The prosecutor should not bring to the attention of the trier of fact matters that the prosecutor knows to be inadmissible, whether by offering or displaying inadmissible evidence, asking legally objectionable questions, or making impermissible comments or arguments.”).

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more efficacious on the issue” and the evidence likely “rouse[d]

the jury to overmastering hostility against” the defendant). As

our decision in Kazanas recognizes, when there is a demonstrable

need to introduce evidence of prior bad acts, admission of such

evidence is limited and circumscribed by that necessity. 138

Hawaiʻi at 43, 375 P.3d at 1281.

In this case, any need to provide context as to

Gallagher’s intent did not make it necessary to introduce

evidence of the details of each of the four prior incidents, the

Normans’ extreme fear, or the extensive countermeasures taken.

Nor was the admission of such evidence needed to establish that

the charged incident was not a “random” event or to show intent

as to the monetary amount of the damage caused, as the

dissenting opinions maintain. See Dissent at 17-18, 22;

Recktenwald, C.J., Dissenting at 4 [hereinafter C.J. Dissent].

The dissenting opinions also argue that the need for

the evidence demonstrates the probative value of the prior

incidents because it was the only evidence available to show

Gallagher’s intent to seriously damage the vehicle. Dissent at

20; C.J. Dissent at 2.12 The evidence at trial refutes this

12 Professor Bowman has aptly observed in his evidence treatise that the intent inferences of HRE Rule 404(b) require critical examination:

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contention. Ms. Norman testified at trial that Gallagher hit

the car approximately fourteen to sixteen times, described the

dents in the car as “massive,” and stated Gallagher’s kicks and

punches were so loud she thought he was using a baseball bat.

Also presented were Mr. Norman’s observations of the damage,

video evidence showing Gallagher as he caused the damage with an

accompanying narrative by Ms. Norman, photographs depicting the

damage, and the testimonies of Yoshizawa and Little, who

assessed the value of the damage to the truck. All of this

evidence was not only used to show Gallagher’s intent, but it

was significantly more probative of his intent on the night he

caused the damage than Ms. Norman’s observations of Gallagher’s

prior conduct in the preceding weeks and months that did not

involve property damage.13

Because mens rea is an element of the prosecution’s case-in-chief in most criminal cases, the intent inferences of rule 404(b) require analytical rigor. . . . Analytical rigor is required because nearly all crimes contain a mens rea element and the intent inference, arguably applicable whenever the prior crime is of the same type, could easily swallow the character exclusion. The key to analysis of criminal intent is a careful application of the need factor[.]

Bowman, supra, § 404-3[2][G], at 4-56 (emphases added). 13 Justice Nakayama’s dissent argues that the extensive evidence in this case was ineffective to show Gallagher’s intent because he denied kicking the vehicle hard or many times and intending to cause more than $1,500 worth of damage. Dissent at 22. To reach this conclusion, the dissent summarily discounts the Normans’ eyewitness testimony of Gallagher’s actions during the incident, their subsequent observation of the damage to the vehicle, the video recording of the incident introduced into evidence and

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Thus, the evidence adduced at trial in this case

demonstrates there was little need, and even less probativeness,

for the detailed testimony about each of the prior incidents,

the safety measures taken by the Normans, and the fearful

reactions by the Normans to Gallagher’s conduct because

alternative methods of proof were equally efficacious and less

unfairly prejudicial. These factors, the need for the evidence

and the availability of alternative evidence on the same point

thus weigh strongly against the testimony’s admissibility.

As to the final HRE Rule 403 factor, the likelihood

that the evidence will inspire ill-will in the jury toward the

defendant, the number of prior incidents and the involved

circumstances had a high potential to “rouse the jury to

overmastering hostility” against Gallagher. Behrendt, 124

Hawaiʻi at 106, 237 P.3d at 1172 (quoting Renon, 73 Haw. at 38,

828 P.2d at 1273). The jury heard detailed testimony from

Ms. Norman regarding Gallagher’s erratic behavior on prior

occasions, which consisted of angry gestures and profane

language toward her. Ms. Norman also testified that the prior

observed by the jury, and the testimony of the State’s two expert witnesses as to the damage. If the alternative evidence in this case was held to be insufficient to address the purported need to show an intent inference, then the effect of such a precedent would be to “swallow the character exclusion.” Bowman, supra, § 404-3[2][G], at 4-56.

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incidents terrified her, that she filed six police reports

against Gallagher, and that she and Mr. Norman took measures--

such as tinting windows of their home and installing

surveillance and alarm systems--in response to Gallagher’s prior

harassment. The testimony was virtually certain to elicit from

the jury strong sympathy for the Normans and animus toward

Gallagher for the fear and unwarranted disruption Gallagher’s

ongoing behavior had caused in the Normans’ lives--and

Ms. Norman in particular.14

This extremely prejudicial effect was likely

exacerbated by the State’s focus on the past incidents in its

opening statement and closing argument. The State repeatedly

14 Justice Nakayama’s dissent dismisses the unfairly prejudicial effect of this evidence by drawing an inapt comparison to our decision in Behrendt. See Dissent at 24-25. In that case, we concluded the prior bad acts involved conduct that “was of the same general type” as the alleged crime and therefore unlikely to rouse the jury to overmastering hostility. Behrendt, 124 Hawaiʻi at 107, 237 P.3d at 1173. In contrast, none of the previous incidents here involved property damage--the crime for which Gallagher was charged in this case--but rather obscene language and gestures, which communicated to the jury, as the dissent describes, “an escalating pattern of extreme aggression toward a specific couple.” Dissent at 17. The dissimilar prior misconduct in this case plainly “carried with it the potential to rouse the jury to overmastering hostility against” Gallagher and thus violated HRE Rule 403. Kazanas, 138 Hawaiʻi at 43, 375 P.3d at 1281 (concluding that evidence of the defendant’s prior physical acts were not similar to the acts alleged in that case and created the potential of overmastering hostility towards the defendant, and thus the trial court abused its discretion in performing the HRE 403 balancing test). Additionally, the prior misconduct in Behrendt was admitted to show the defendant’s development of “a relationship of trust and control” over the minor, and to explain both the delayed reporting of the sexual abuse and when the abuse began. Behrendt, 124 Hawaiʻi at 107-08, 237 P.3d at 1173- 74. The dissent thus draws an incongruous comparison of the circumstances in Behrendt to those in this case and does not properly consider the availability of alternative evidence to prove the matter for which the misconduct evidence was offered in the two cases. See Dissent at 24-25.

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emphasized that “[t]his was not an isolated incident” and

focused on the extensive countermeasures the Normans had taken

in response to the prior events, expressly stating that it had

introduced this evidence to show the Normans’ perception of

Gallagher. The State argued that Gallagher “was becoming more

dangerous each time he showed up,” seeming to encourage the jury

to consider whether convicting Gallagher would prevent him from

causing more harm. The possible future threat Gallagher posed

was also irrelevant to whether the elements of criminal property

damage in the second degree were met by Gallagher’s conduct.

This factor therefore also weighs heavily against admittance of

the prior incidents.

Justice Nakayama’s dissent places much reliance on the

ability of the limiting instructions given by the court to cure

the potential for the jury’s improper use of the evidence of

prior bad acts because “it will be presumed that the jury

adhered to the circuit court’s instruction.” See Dissent at 19

(quoting State v. Kassebeer, 118 Hawaiʻi 493, 519, 193 P.3d 409,

435 (2008)). However, the ability to cure potential misuse of

the evidence with a limiting instruction presupposes that the

court correctly instructed the jury as to the evidence’s proper

use.

The requirement to issue a legally correct limiting

instruction derives from “the trial courts . . . duty and

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ultimate responsibility to insure that juries are properly

instructed on issues of criminal liability.” State v. Adviento,

132 Hawaiʻi 123, 137, 319 P.3d 1131, 1145 (2014) (citation

omitted). This responsibility is of such importance that it

rests upon the court even when a misstatement of law is the

result of an improper argument of counsel to the jury. State v.

Espiritu, 117 Hawaiʻi 127, 143, 176 P.3d 885, 901 (2008) (“[T]he

failure to correct misstatements of law by a prosecutor may

result in reversal of a defendant’s conviction.”); State v.

Basham, 132 Hawaiʻi 97, 111, 319 P.3d 1105, 1119 (2014) (holding

that a prosecutor’s misstatement of the law was not cured where

no specific curative instruction was given relating to the

misstatement that was given). Similarly, a court’s limiting

instruction to the jury is also ineffective when it incorrectly

instructs the jury about the limited use of admitted evidence.

As provided by HRE Rule 105 (1993), “When evidence which is

admissible . . . for one purpose but not admissible . . . for

another purpose is admitted, the court, upon request, shall

restrict the evidence to its proper scope and instruct the jury

accordingly.” (Emphasis added.)

This court recently addressed the importance of

providing a proper limiting instruction to the jury. In State

v. Lavoie, the trial court ruled that prior acts of abuse were

admissible to rebut the defendant’s penal responsibility and

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extreme mental or emotional disturbance defenses, but the

court’s limiting instruction informed the jury that the evidence

could be considered on the defendant’s intent to commit the

offenses.15 State v. Lavoie, 145 Hawaiʻi 409, 428-29, 453 P.3d

229, 248-49 (2019). We held that the instruction was an

incorrect statement of the issues on which the trial court had

ruled the prior bad acts were relevant, as it allowed the jury

to consider the prior bad acts for a purpose other than that for

which they had been admitted. Id. at 429-30, 453 P.3d at 249-

50. Thus, we determined that the trial court had improperly

instructed the jury on the use of the prior misconduct evidence.

Id.16

In this case, Gallagher duly requested a limiting

instruction, and the court was required to “restrict the

evidence to its proper scope.” Instead, the court informed the

jury that Gallagher’s prior acts could be considered in

determining “the issue of the Defendant’s motive to commit the

offense charged, opportunity to commit the offense charged,

. . . preparation to commit the offense charged, plan to commit

15 The trial court in Lavoie, as in this case, read the limiting instruction multiple times to the jury during the course of the trial. Lavoie, 145 Hawaiʻi at 429, 453 P.3d at 249. 16 We concluded that it was unnecessary to determine whether the limiting instruction was “plainly erroneous” in light of our disposition of other issues in the case. Lavoie, 145 Hawaiʻi at 429 n.36, 453 P.3d at 249 n.36.

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the offense charged, and identity of the person who may have or

allegedly committed the offense charged.” This instruction,

given twice, was plainly incorrect.

The prior incidents should not have been considered by

the jury for Gallagher’s motive, opportunity, preparation, or

plan because Gallagher’s identity as the person who committed

the charged offense was not in dispute. See Castro, 69 Haw. at

645, 756 P.2d at 1042 (when “the identity of the perpetrator of

the crimes was not denied, [] the admission of the other crimes

evidence as proof of modus operandi,” including plan and

preparation, “cannot be justified”). Instead of curing or

limiting any potential misuse of the evidence, the court’s

“limiting” instruction expansively and improperly allowed the

jury to consider the prior bad acts in order to prove, for

example, that Gallagher had a plan to damage the car, that these

prior acts were part of his preparation to commit the crime

charged, and that the prior incidents of misconduct related to

Gallagher’s motive for the offense.17 See Lavoie, 145 Hawaiʻi at

17 Justice Nakayama’s dissent fails to recognize the substantial risk of the jury misapplying the prior misconduct evidence as a result of the court’s flawed limiting instruction--hypothesizing that the jury considered the evidence only for issues not in dispute--and thus concludes that the instruction was harmless. Dissent at 19-20 n.9. But it is precisely because the limiting instruction failed to restrict consideration of the evidence to the purpose for which it was admitted while specifically allowing the jury to consider the misconduct evidence for issues not relevant to the charge, such as plan, preparation, and motive to commit the charged offense, that the prejudice to Gallagher from the prior misconduct evidence was exacerbated.

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430 n.39, 453 P.3d at 250 n.39 (trial court erred by not

tailoring the limiting instructions to the specific matters for

which the prior bad acts were deemed relevant).

Not only were plan, preparation, and motive not

elements of the crime, but as Gallagher’s counsel argued to the

court during the motions in limine and at trial, because

identification was also not in issue, the introduction of the

prior incidents would confuse and mislead the jury. It was

incumbent upon the court to issue a limiting instruction that

properly instructed the jury as to the legitimate uses of the

prior incidents after the court admitted the misconduct

evidence, particularly in light of its great potential for

misapplication by the jury. See HRE Rule 105 (requiring the

court, when requested, to restrict admitted evidence to its

proper scope). We have repeatedly emphasized that it is the

trial court’s duty to properly instruct the jury on the

applicable law, and that once instructional error is

demonstrated, the judgment will be vacated if the erroneous

instruction was not harmless beyond a reasonable doubt. See,

Castro, 69 Haw. at 645–46, 756 P.2d at 1042 (holding there was “no [] basis to consider the evidence admissible under the rubric of ‘preparation’” or plan, and “the potential for unfair prejudice being generated by the evidence was far greater than its value in establishing facts of consequence to the determination of the case”).

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e.g., State v. Taylor, 130 Hawaiʻi 196, 204-08, 307 P.3d 1142,

1150-54 (2013); State v. Kikuta, 125 Hawaiʻi 78, 95, 253 P.3d

639, 656 (2011); State v. Stenger, 122 Hawaiʻi 271, 281, 226 P.3d

441, 451 (2010). Thus, the dissent’s reliance on the court’s

limiting instruction, see Dissent at 19, is misplaced because it

improperly instructed the jury that the evidence of bad acts

could be considered in determining Gallagher’s motive,

opportunity, preparation, or plan to commit the offense charged.

Upon hearing the evidence of the prior incidents in

this case, the jury likely “prejudge[d]” Gallagher based on “a

bad general record” of interactions with the Normans and

“den[ied] him a fair opportunity to defend against” the specific

charge of criminal property damage in the second degree.

Castro, 69 Haw. at 645, 756 P.2d at 1042 (quoting Michelson v.

United States, 335 U.S. 469, 476 (1948)); accord Kazanas, 138

Hawaiʻi at 43, 375 P.3d at 1281 (holding that the improper

admission of a prior domestic abuse offense against a vulnerable

victim could have roused the jury to overmastering hostility

against the defendant). “On balance, the potential for unfair

prejudice being generated by the evidence was far greater than

its value in establishing facts of consequence to the

determination of the case.” Castro, 69 Haw. at 645-46, 756 P.2d

at 1042. Thus, the circuit court abused its discretion in

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finding that the prejudicial effect of the prior incidents did

not substantially outweigh their probative value.

Recognizing that the admission of the extensive

details pertaining to the prior incidents was “highly

prejudicial” and clearly inadmissible, the Chief Justice’s

dissent argues that Gallagher failed to preserve his objection

to this evidence and thus “waived” an objection to its

introduction. C.J. Dissent at 6-7. The basis for this flawed

contention is that Gallagher did not object to what the Chief

Justice’s dissent calls “impact testimony” as to the four prior

incidents.18

In this case, Gallagher objected to the admission of

the evidence regarding the four prior incidents five separate

times: in the written motions in limine, during the hearing on

the motions in limine and in opposition to the State’s notices

of intent, in the State’s opening statement, and during

Ms. Norman’s testimony when she was about to testify regarding

18 The Chief Justice’s dissent identifies the “impact testimony” as including

the Normans’ repeated calling of police regarding the incidents; their filing of six police reports involving harassment; the numerous protective measures installed in their home, including the tinting of windows and the installation of a surveillance system with seven video cameras and an alarm system; and – perhaps most prejudicial – the recounting of the Normans’ ongoing fear of Gallagher and Ms. Norman’s statement that the prior incidents terrorized her.

C.J. Dissent at 6.

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the prior incidents. Nonetheless, the “impact testimony” theory

faults the specificity of Gallagher’s multiple objections,

positing an artificial distinction between an objection relating

to conduct and one relating to the results of that same conduct.

Under this theory, Gallagher waived his objection to the “impact

testimony” because, while he objected to the introduction of

evidence of his actions in the various incidents, he did not

specify that he was also objecting to the reactions of the

Normans to his actions. C.J. Dissent at 6-15.

However, the very substance of Gallagher’s objections

clearly indicates that Gallagher’s objections were not

restricted only to his conduct during the prior incidents. In

Gallagher’s written motions in limine, he requested an order

excluding “testimonial or documentary” evidence “relating to any

other ‘acts’, bad or otherwise involving the defendant” and

specifically “any” such evidence “regarding alleged incidents

involving the Complaining Witnesses and/or other person” on the

four dates. (Emphases added.) This objection manifestly

included the evidence characterized by the Chief Justice’s

dissent as “impact testimony” (e.g., the Normans’ repeated

calling of police regarding the incidents; their filing of six

police reports involving harassment; Ms. Norman’s statement that

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the prior incidents terrorized her), as the evidence was

“relating to” and “regarding” the prior incidents.19

The “impact testimony” theory is further refuted by

the very nature of the prior incidents that the State sought to

introduce, which the State identified in its notices of intent

as harassment or harassment by stalking incidents. These

offenses, as they pertain to this case, requires the victim to

“reasonably believe[]” that the actor intends to cause bodily

injury to the victim or damage to their property. See HRS

§§ 711-1106(1)(a), (f) (2014), 711-1106.5 (2014). Thus, by

definition and by their inherent nature, the underlying conduct

of these offenses directly involved “impact” upon Ms. Norman,

particularly her fear that directly resulted from Gallagher’s

actions. Therefore, Gallagher’s objections to the prior

incidents listed in the State’s notices of intent because the

incidents were irrelevant and unduly prejudicial included the

reactions of the Normans that related to or involved the

reported harassment.

The State in fact expressly noted in the pretrial

hearing that it intended to show “an escalating series of

19 Indeed, had the court granted Gallagher’s motion to preclude any evidence regarding the prior incidents, under the analysis of the Chief Justice’s dissent, the State would nevertheless have been allowed to elicit “impact testimony” from Ms. Norman, such as her reporting of the six incidents to the police and that the prior incidents terrorized her.

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events” and that it would seek to elicit evidence regarding the

harassment incidents, including the threating nature of

Gallagher’s visits and the resulting extensive countermeasures

the Normans undertook.

[COUNSEL]: . . . . [Gallagher] just started appearing at our complaining witness’s house, essentially taking them to the point where they had to get a protective order against him, installed a video surveillance system on their house, basically because he had come around so many times threatening them[.]

It is clear that testimony surrounding the incidents that the

State sought to introduce included the results of Gallagher’s

threatening behavior, which at a minimum had “tak[en] [the

Normans] to the point where they had to . . . install[] a video

surveillance system.”20 There is no question that the State

correctly concluded that the circuit court had ruled that

Ms. Norman could testify as to her reactions during and to the

20 The Chief Justice’s dissent points to other statements made by the prosecutor during the motions in limine hearing to support its position that the prior misconduct sought to be admitted by the prosecutor only pertained to Gallagher’s actions and not the results of his actions upon the Normans. However, even in the description of the incidents that the dissent relies upon, the prosecutor recounted to the court that Ms. Norman “observes the defendant outside of her house again being aggressive, yelling profanities at her,” that Ms. Norman “reports harassment,” “reports again to the police that this is the same individual,” and “files a police report.” Additionally, in the prosecutor’s written notices of intent, the incidents were identified as four incidents of harassment and two of harassment by stalking. It is unmistakably clear that the prosecutor sought to introduce not only actions by Gallagher in the incidents but the Normans’ reactions to his conduct, including the fear they engendered, the numerous police reports filed, and the protective measure cited by the prosecutor. If the prosecutor had intended otherwise, as the Chief Justice’s dissent maintains, its admission would have minimized Gallagher’s conduct by considering his actions as something separate from their effects on the Normans.

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incidents since her reactions prompted the phone calls to

police, the filing of police reports, and the necessity for the

video surveillance system.21 And there is also no question that

Gallagher’s objections to the evidence “regarding” or “relating”

to the prior incidents likewise sought to exclude this

testimony.

Indeed, the illogicality of distinguishing between

objections to the conduct and the impact of that conduct has its

own implications. As the Chief Justice’s dissent aptly notes,

the State’s notices of intent did not expressly advise that it

intended to introduce the resulting “impact” occasioned by the

harassment incidents, and it is partially for this reason that

the dissent concludes that Gallagher’s objections to these

incidents were ineffectual in preserving objections to this

evidence. See C.J. Dissent at 9. Yet, it is clear that the

prosecutor intended to and did, in fact, elicit Ms. Norman’s

“impact testimony.” Thus, under the Chief Justice’s analysis,

the State engaged in prosecutorial misconduct by failing to

provide reasonable notice of its intent to adduce “impact”

evidence of Gallagher’s “other crimes, wrongs, or acts,” which

falls squarely within HRE Rule 404(b). See HRE Rule 404(b) (“In

21 The State’s understanding of the trial court’s ruling is abundantly clear from its opening statement when it provided a wholesale description of the prior incidents, inclusive of their resulting impacts.

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criminal cases, the proponent of evidence to be offered under

this subsection shall provide reasonable notice in advance of

trial, or during trial if the court excuses pretrial notice on

good cause shown, of the date, location, and general nature of

any such evidence it intends to introduce at trial.”); State v.

Underwood, 142 Hawaiʻi 317, 325 n.12, 418 P.3d 658, 666 n.12

(2018). Thus, under the Chief Justice’s analysis, we would be

compelled to find that the prosecutor’s misconduct in failing to

provide notice of its intention to adduce “impact evidence” was

“highly prejudicial” and deprived Gallagher of a fair trial.

It is noted that the “impact testimony theory” was

never advocated by the State at trial or raised on appeal, is

contrary to the approach our courts have long applied, and is

not part of our evidence law. Additionally, the artificial

distinction between actions and their effects would create

difficult problems for counsel and the court in its application.

Prosecutors and defense attorneys--and the courts in their

rulings--would be required to dissect the series of events in

any misconduct incident to distinguish between the actions of

the defendant and the effects of those actions, parceling out

such matters as the victim’s reactions to the conduct, the

resulting fear or injuries from the conduct, and defensive

responses taken during the incident. We thus reject the “impact

testimony” theory propounded by the Chief Justice’s dissent.

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In summary, it is clear that Gallagher properly

preserved his objection to the testimonial evidence regarding

the prior incidents, including the unduly prejudicial testimony

of the extensive surrounding details elicited from Ms. Norman.22

Finally, the Chief Justice’s dissent acknowledges the

HRE Rule 404(b) principle that “whether or not the proffer

survives the [HRE] rule 403 balance may well depend on whether

22 It is noted that this court has previously rejected the “waiver” analysis that the Chief Justice’s dissent advocates in an analogous context. In State v. Schnabel, the petitioner sought to prevent the State from eliciting evidence of petitioner’s juvenile proceedings, arguing that the evidence was not relevant and that its probative value was substantially outweighed by the risk of prejudice. 127 Hawaiʻi 432, 457–58, 279 P.3d 1237, 1262–63 (2012). We held that the circuit court had erred in allowing the evidence to be introduced because HRS § 571-84(h) barred the introduction of such evidence, and further concluded that petitioner had not waived the argument by failing to specify the statute in its objection. As we explained in Schnabel,

“Case law from our state indicates . . . that the purpose of requiring a specific objection is to inform the trial court of the error.” State v. Long, 98 Hawaiʻi 348, 353, 48 P.3d 595, 600 (2002). However, Long explained that an appellate court will “consider a meritorious objection not voiced to the trial judge” when “the ground for exclusion should have been obvious to [the] judge and opposing counsel[,]” 98 Hawaiʻi at 354, 48 P.3d at 601 (internal quotation marks, citation, and emphasis omitted) (emphasis added). Although Petitioner did not specifically raise HRS § 571–84(h), its applicability should have been “apparent from the context[,]” HRE Rule 103(a)(1) of Petitioner’s objection.

Id. at 458, 279 P.3d at 1263 (alterations in original). As stated above, Gallagher clearly informed the court that he sought to preclude “any testimonial or documentary evidence regarding the alleged incidents” and repeatedly objected to the State’s introduction of the incidents as irrelevant and unduly prejudicial. Even assuming Gallagher’s objections were not specific enough to include the Normans’ reactions to his conduct, which they were, it should have been obvious to the court that Gallagher’s objections were not limited to his conduct during the incidents, but rather they included “any” testimony “regarding” or “relating” to the prior incidents.

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or not the matter is in dispute[, which requires] consideration

of the precise defensive claims being made in the case.” C.J.

Dissent at 4 (alterations in original) (quoting Addison M.

Bowman, Hawaii Rules of Evidence Manual § 404-3[3][D], at 4-60

(2016-2017 ed.)). Both dissents, however, contend that because

a juror submitted a question regarding Gallagher’s identity,

that question essentially demonstrated his identity was

disputed, which in turn rendered Gallagher’s prior conduct as

“relevant and admissible.” C.J. Dissent at 5.23 In their

efforts to portray identity as a disputed issue that did not

exist at trial, the dissents seek to establish and apply a new

legal principle that juror questions submitted during trial can

be utilized to evaluate the validity of evidentiary rulings.

This approach is fundamentally flawed.

Under the dissents’ theory, a juror’s question that

comes before other witnesses are called to testify on the

“disputed” matter or before other physical evidence is

introduced may be determinative of the admissibility of HRE Rule

404(b) evidence. The juror question relied upon by the

23 Like Justice Nakayama’s dissent, the Chief Justice’s dissent points to the fact that because Gallagher did not stipulate to the elements of the offense, the State’s burden of proof provided a basis for admission of the HRE Rule 404(b) misconduct evidence. C.J. Dissent at 4. The contention that an unstipulated element renders the element in dispute for purposes of HRE Rule 404(b) analysis is contrary to our caselaw, conflicts with settled evidentiary principles set forth in Professor Addison Bowman’s treatise, and would effectively nullify the restrictions of HRE Rule 404(b). See supra note 9.

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dissents, which occurred at the conclusion of Ms. Norman’s

testimony, was the following: “Can the Defendant be positively

identified that it is really him?” C.J. Dissent at 5; see

Dissent at 14 n.5. However, even if consideration of jury

questions were permissible to review evidentiary rulings, the

obvious problem with the dissents’ reliance on this question to

show a disputed issue of identity is that the question was posed

prior to Mr. Norman’s testimony and prior to the defense case

when Gallagher testified to his actions during the incident. In

Mr. Norman’s subsequent testimony, he identified Gallagher in

court, described Gallagher’s movements during the night of the

incident, and stated that Gallagher caused the damage to the

vehicle depicted in photographs published to the jury. In

Gallagher’s testimony, he unequivocally testified that he was

the person who had kicked the vehicle.

The issue of identify was unquestionably not disputed

at trial, and it did not become disputed as a result of a juror

question about the certainty of a witness’ identification that

occurred before evidence in the case was concluded. Yet, under

the dissents’ hypothesis, the substance of questions posed by

jurors is a factor to be considered when determining questions

of the admissibility of evidence under HRE Rule 404(b). This

rationale merely reflects the absence of a legally valid reason

given by the dissents for the admission of the prior misconduct

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evidence. And absurdly, a juror’s question that comes before

other witnesses are called to testify on the “disputed” matter

or before other physical evidence is introduced may be

determinative of the admissibility of HRE Rule 404(b) evidence.24

Under this approach, the State would benefit from a prosecutor’s

deficient direct examination that results in juror questions to

clarify a witness’ testimony, which then incongruously provides

a basis for admission of misconduct evidence.

It is noted that the novel approach of the dissenting

opinions, that an appellate court may use a juror question to

review the legal propriety of an evidentiary trial ruling (and

perhaps other rulings as well), was neither argued nor raised by

the State. But even assuming that legal principles permitted

juror questions to be used to support an evidentiary ruling

(which they emphatically do not), by the same logic, juror

questions could also be used to show that a prior evidentiary

ruling was erroneous.25 Trial judges would then be placed in the

24 The Chief Justice’s dissent asserts agreement with this opinion that juror questions do not determine the admissibility of evidence under HRE Rule 404(b). But, because it is undisputed that the evidence as to identity was not contested, the juror question remains the only basis the dissents point to for admission of the misconduct evidence. As stated, the absence of a stipulation does not make an undisputed element of an offense disputed, nor does it provide a vehicle to circumvent our settled law on HRE Rule 404(b). See authorities and caselaw discussed supra note 9. 25 Indeed, one juror question asked, “Was this the first time the defendant caused property damage against the Normans?” Applying the dissents’ reasoning, this question would firmly support Gallagher’s

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position of having their evidentiary rulings upended by the

substance of questions submitted by jurors. Consequently, a

trial court would need to be ready to reconsider its prior

evidentiary rulings based on jury questions, and appellate

courts would be required to evaluate both the initial

evidentiary ruling of the trial court and its response to a

juror question as it relates to the earlier ruling. This

underscores the problematic nature of the proposition advocated

by the dissents.

In summary, the reliance by the dissents on the juror

question regarding “identity” is flawed because the evidence at

trial unquestionably demonstrated that identity was not in

dispute, under well-settled legal principles the admissibility

of HRE Rule 404(b) evidence is not supported or refuted by the

substance of a juror question, and even assuming such a

principle existed in our law, neither the State’s nor the

defense’s evidence had been completed at the time the question

was posed.

contention that because none of the prior incidents involved property damage, they should have been excluded as having virtually no probative value to the only issue in this case--Gallagher’s intent regarding the amount of property damage caused to the Normans’ vehicle--and thus their admission violated HRE Rule 403.

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B. The Circuit Court’s Error Was Not Harmless.

“In applying the harmless beyond a reasonable doubt

standard[,] the court is required to examine the record and

determine whether there is a reasonable possibility that the

error complained of might have contributed to the conviction.”

State v. Mundon, 121 Hawaiʻi 339, 368, 219 P.3d 1126, 1155 (2009)

(alterations in original) (quoting State v. Balisbisana, 83

Hawaiʻi 109, 114, 924 P.2d 1215, 1220 (1996)).

This is not a case “[w]here there is a wealth of

overwhelming and compelling evidence tending to show” beyond a

reasonable doubt that Gallagher intended or knew that his

actions would cause over $1,500 in damage to the Normans’

property. State v. Rivera, 62 Haw. 120, 128, 612 P.2d 526, 532

(1980). Although the repair estimates presented by the State

may initially suggest that it was manifest that the damage

exceeded $1,500, the amount of divergence between the estimated

amounts demonstrates the difficulty of objectively gauging the

cost of automotive repairs. Yoshizawa, the mechanic who

testified for the State, asserted that the repairs would cost

$4,583.04. In contrast, Little, an automotive damage specialist

for the Normans’ insurance company, estimated the damage at

$3,036.26--$1546.78 less than Yoshizawa. If the estimates of

two trained specialists varied to such a degree, it can hardly

be said beyond a reasonable doubt that Gallagher was aware the

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damage he was causing was likely to exceed $1,500 simply from

viewing it as it occurred.

The State’s other evidence on the issue consisted

primarily of visual depictions of the incident and its aftermath

and testimony of the Normans’ perception of the event. The

State introduced two video recordings that showed Gallagher

running up to and flailing at the Normans’ vehicle without clear

purpose or direction. The State also presented the testimony of

Mr. Norman, who testified that he saw multiple dents on the

vehicle after the incident on September 15, 2013, and identified

a series of photographs that depicted the damage to the vehicle

that was allegedly caused by Gallagher. The State published the

photographs to the jury and entered them into evidence; they do

not appear to clearly depict extreme damage and show that the

truck had many preexisting scratches and scuff marks.

In contrast, Gallagher testified that he had kicked

the truck with only the inside of his foot and that the incident

lasted a total of only ten seconds. Gallagher said that he was

5 feet 9 inches tall and weighed 160 pounds and that he was

wearing a pair of cross-trainers during the incident. He

indicated that he had only “put a couple scuff marks on the

truck,” which would have amounted to $300 or $400 in damage,

requiring only a “detail job to buff it out” or a “wax job” to

repair. Gallagher stated that he did not intend to do extensive

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damage to the vehicle. Given this balance of evidence, the

jury’s determination essentially turned on whether they credited

Gallagher’s testimony regarding the extent of the damage he

intended to cause and was aware he was causing, and this

assessment could have been colored by the dramatic details of

Further, the prejudicial testimony may have led the

jury to decide the case on considerations completely independent

of the charged offense. The jury may have viewed the entire

course of Gallagher’s conduct as a continuing campaign of

harassment against the Normans that they could end by convicting

him. And the jurors may have decided the case based not on the

amount of damage Gallagher intended to cause during the charged

incident, but rather a desire to relieve the Normans of the

ongoing hardship of constantly dealing with Gallagher’s

misconduct toward them and the extreme fear that it caused them.

“Unfair prejudice ‘means an undue tendency to suggest

decision on an improper basis, commonly, though not necessarily,

an emotional one.’” Kaeo v. Davis, 68 Haw. 447, 454, 719 P.2d

387, 392 (1986) (quoting Advisory Committee’s Note to Federal

Rules of Evidence 403); see HRE Rule 403 cmt. (specifying that a

form of unfair prejudice is the evidence’s “potential for

engendering” the jury’s emotions, such as “hostility[] or

sympathy”). Because we do not conclude that the wrongfully

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admitted testimony did not color the jury’s perception as to

whether the elements of the offense were met or lead the jury to

decide the case on a basis unrelated to those elements, there is

a reasonable possibility that the error contributed to

Gallagher’s conviction. The error was therefore not harmless

beyond a reasonable doubt.

V. CONCLUSION

Based upon the foregoing, we vacate the ICA’s judgment

on appeal, vacate the circuit court’s judgment of conviction and

sentence, and remand the case for further proceedings consistent

with this opinion.

Cynthia A. Kagiwada /s/ Sabrina S. McKenna for petitioner /s/ Richard W. Pollack Peter A. Hanano for respondent /s/ Michael D. Wilson