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Electronically Filed Intermediate Court of Appeals CAAP-XX-XXXXXXX 28-JAN-2026 08:36 AM Dkt. 102 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAIʻI
STATE OF HAWAIʻI, Plaintiff-Appellee/Cross-Appellant, v. ALVIN TRAN, Defendant-Appellant/Cross-Appellee
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT (CASE NO. 1CPC-XX-XXXXXXX)
SUMMARY DISPOSITION ORDER (By: Leonard, Presiding Judge, Wadsworth and Guidry, JJ.)
Defendant-Appellant/Cross-Appellee Alvin Tran (Tran)
appeals from the Circuit Court of the First Circuit's (circuit
court) December 10, 2024 "Judgment of Conviction and Sentence"
(Judgment). 1 Plaintiff-Appellee/Cross-Appellant State of Hawaiʻi
(State) cross-appeals from the circuit court's ruling on a
question of law adverse to the State, pursuant to Hawaii Revised
Statutes (HRS) § 641-13(5) (2016).
1 The Honorable Catherine H. Remigio presided. NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
On July 24, 2020, the State charged Tran by
Indictment, alleging that Tran committed "Continuous Sexual
Assault of a Minor Under the Age of Fourteen Years" in violation
of HRS § 707-733.6 (2014). A jury found Tran guilty as charged.
The circuit court sentenced Tran to a twenty-year term of
imprisonment. Tran appealed, and the State cross-appealed.
Tran raises multiple points of error on appeal,
contending that: (1) "[t]he circuit court reversibly erred by
not engaging in a colloquy with Tran to ensure that he
intelligently, knowingly, and voluntarily waived his right to
cross-examine [the complaining witness (CW)]"; (2) "[t]rial
counsel provided Tran with ineffective assistance of counsel by
not cross-examining [CW]"; (3) "[t]he circuit court reversibly
erred in instructing the jury . . . that the charged offense's
attendant circumstances element of the minor's age was a strict
liability element that did not require any mens rea"; (4) "[t]he
circuit court plainly erred in allowing the jury to consider Dr.
[Kayal] Natarajan's [(Dr. Natarajan)] testimony (in its
entirety), and Dr. [Alex] Biven[s' (Dr. Bivens)] testimony (also
in its entirety), because their testimony established its own
irrelevancy"; (5) "[t]he circuit court . . . plainly erred by
not qualifying the defense expert, [Tristan Wristen (Nurse
Wristen)], as an expert in front of the jury"; and (6) the
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prosecutor committed prosecutorial misconduct in her opening,
closing, and rebuttal statements. (Citations omitted.)
The State's cross-appeal raises one point of error,
contending that "[t]he circuit court erred by concluding
[Tran's] statements to the [CW] . . . required a separate
determination of voluntariness under HRS § 621-26."
Upon careful review of the record, briefs, and
relevant legal authorities, and having given due consideration
to the arguments advanced and the issues raised by the parties,
we resolve Tran and the State's points of error as follows:
I. Tran's Points of Error 2
(1) Tran contends the circuit court erred by not
conducting a colloquy to determine whether Tran waived his right
to cross-examine the CW. We review constitutional questions
under the right/wrong standard. State v. Fields, 115 Hawaiʻi
503, 511, 168 P.3d 955, 963 (2007).
"In all criminal prosecutions, the accused shall enjoy
the right . . . to be confronted with the witnesses against the
accused[.]" Haw. Const. art. I, § 14. "[T]he main and
essential purpose of confrontation is to secure for the
[defendant] the opportunity of cross-examination[.]" Birano v.
2 We address both Tran's first and second points of error in section (1) below.
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State, 143 Hawaiʻi 163, 183, 426 P.3d 387, 407 (2018) (citation
omitted).
Tran does not cite to any case in which the Hawaiʻi
appellate courts have held that, notwithstanding defense
counsel's discretion to exercise appropriate trial strategy, a
judge must conduct a colloquy to obtain a criminal defendant's
express waiver of defendant's right to cross-examine a witness
for the prosecution. Indeed, in addressing this issue, the
Hawaiʻi Supreme Court explained that,
The right of confrontation is a fundamental constitutional right of the accused. But, this right is not absolute and defense counsel can waive certain aspects of the right where such waiver is considered a matter of trial tactics and procedure; in which event the trial court is not required to determine whether defendant had knowingly and voluntarily waived his right.
State v. Oyama, 64 Haw. 187, 189, 637 P.2d 778, 779-80 (1981)
(emphasis added) (citations omitted).
Here, the record reflects that Tran's defense counsel
made a tactical decision not to cross-examine CW. 3 We therefore
3 It appears that defense counsel's decision not to cross-examine CW before the jury was part of the defense strategy. The record reflects that defense counsel actively engaged in Tran's defense, raising several objections during the prosecution's direct examination of CW. Trial proceedings were briefly recessed after CW, who had been removed to a witness room during a bench conference, began crying and "was not able to come back" to the courtroom. During that recess, as the parties waited for CW to resume her testimony, defense counsel expressed concerns regarding the presence of a comfort dog within the courtroom itself, and of the relocation of the victim witness counselor nearer to the witness stand. After the prosecutor concluded her direct examination, defense counsel informed the circuit court that he had "several objections that [he thought] would be better handled from counsel table." Defense counsel subsequently moved for a mistrial, and the circuit court ordered a recess to allow for a hearing on the
(continued . . .)
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conclude that the circuit court was not required to conduct a
colloquy to determine whether Tran knowingly and intelligently
waived his right to confrontation.
With regard to Tran's contention that defense counsel
was ineffective for failing to cross-examine CW, we consider
whether defense counsel's assistance, when "viewed as a whole,
. . . was within the range of competence demanded of attorneys
in criminal cases." State v. DeLeon, 131 Hawaiʻi 463, 479, 319
P.3d 382, 398 (2014) (citation omitted). Where a defendant
alleges "[s]pecific actions or omissions" that "ha[ve] an
obvious tactical basis for benefitting the defendant's case" as
error, such allegations "will not be subject to further
scrutiny." Id. (citation omitted); see also State v. Richie, 88
Hawaiʻi 19, 39, 960 P.2d 1227, 1247 (1998) ("[M]atters presumably
within the judgment of counsel, like trial strategy, will rarely
be second-guessed by judicial hindsight.") (cleaned up). Here,
the record reflects "an obvious tactical basis" underlying
defense counsel's decision to not cross-examine CW.
(2) Tran contends that the circuit court erred by
failing to instruct the jury of the State's "burden to prove
3(. . .continued)
voluntariness of statements made by Tran to CW. During that hearing, defense counsel questioned CW regarding her statement that Tran "seemed stressed" during their interactions. It was only after this hearing, and upon the resumption of trial, that defense counsel informed the circuit court that "defense has no questions for [CW]."
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[Tran's] mens rea as to [CW's] age." We review the propriety of
jury instructions de novo, and determine "whether, when read and
considered as a whole, the instructions given are prejudicially
insufficient, erroneous, inconsistent, or misleading." State v.
Kato, 147 Hawaiʻi 478, 490, 465 P.3d 925, 937 (2020) (cleaned
up).
Tran was charged pursuant to HRS § 707-733.6. By its
express terms, HRS § 707-733.6 prohibits the "continuous sexual
assault of a minor" who is "under the age of fourteen years." 4
HRS § 707-733.6 does not require proof that a person charged
with the offense have knowledge of the attendant circumstance of
the victim's age.
In State v. Buch, the Hawaiʻi Supreme Court clarified
that "a defendant is strictly liable with respect to the
attendant circumstance of the victim's age in a sexual assault."
4 HRS § 707-733.6 provides, in relevant part,
(1) A person commits the offense of continuous sexual assault of a minor under the age of fourteen years if the person:
(a) Either resides in the same home with a minor under the age of fourteen years or has recurring access to the minor; and
(b) Engages in three or more acts of sexual penetration or sexual contact with the minor over a period of time, while the minor is under the age of fourteen years.
(Emphasis added.)
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83 Hawaiʻi 308, 315-16, 926 P.2d 599, 606-07 (1996). The court
explained that,
To further its policy of protecting children from sexual exploitation by adults, the legislature expressly deleted knowledge of the child's age as an element of sexual assault offenses in which the child's age is an attendant circumstance. By doing so, it fairly placed on the adult the risk of mistake with respect to the child's age.
Id. at 320, 926 P.2d at 611 (examining the legislative history
of sexual offense statutes in which the child's age is an
attendant circumstance).
In sum, while HRS § 707-733.6 requires the State to
prove that CW was under the age of fourteen at the time of the
continuous sexual assault, it does not require the State to
prove that Tran knew CW was under the age of fourteen. We
therefore conclude that the circuit court's jury instructions
were not prejudicially insufficient, erroneous, inconsistent, or
misleading.
(3) Tran contends that the testimonies of Dr.
Natarajan and Dr. Bivens were not relevant, and that the circuit
court therefore erred by admitting their testimonies. In
reviewing the circuit court's determinations as to the relevancy
of expert witness testimony, 5 we are mindful that,
5 The admission of expert witness testimony is governed by Hawaii Rules of Evidence (HRE) Rule 702, which states,
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an
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One of the touchstones of admissibility o[f] expert testimony under HRE 702 is relevance. In determining the relevancy issue, the trial courts' function is akin to the relevancy analysis adopted in applying HRE Rules 401 (1993) and 402 (1993). Expert testimony must assist the trier of fact by providing a resource for ascertaining truth in relevant areas outside the ken of ordinary laity, and should include knowledge not possessed by the average trier of fact who lacks the expert's skill, experience, training, or education. A trial court's relevancy determination is reviewed under the right/wrong standard.
State v. McDonnell, 141 Hawaiʻi 280, 291, 409 P.3d 684, 695
(2017) (cleaned up).
Tran contends Dr. Natarajan's testimony was not
relevant "because it did not make Tran's abuse more or less
probable, nor did it provide a reason to believe or not believe
[CW]." Tran's contention lacks merit. Dr. Natarajan testified
that, during her examination of CW, she detected a "transection
on the hymen" that was "consistent with a penetrating trauma to
[the hymen]." Dr. Natarajan's testimony was relevant with
regard to the jury's understanding of the medical evidence and
its determination of whether Tran sexually assaulted CW. See
State v. Irebaria, 55 Haw. 353, 356, 519 P.2d 1246, 1249 (1974)
("The legitimate tendency to establish a controverted fact is
5(. . .continued) expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise. In determining the issue of assistance to the trier of fact, the court may consider the trustworthiness and validity of the scientific technique or mode of analysis employed by the proffered expert.
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all that is required in order that proffered evidence be
relevant.") (cleaned up).
Tran contends that Dr. Bivens' testimony regarding
delayed reporting 6 was not relevant because the testimony did not
"make[] the fact of abuse more or less likely." Tran's
contention lacks merit. Expert testimony regarding delayed
reporting is relevant because it can assist the jury in
understanding the behavior of child sex abuse victims, and it is
therefore admissible so long as the expert does not make
"conclusory opinions that abuse did occur and that the child
victim's report of abuse is truthful and believable." See
McDonnell, 141 Hawaiʻi at 291-92, 409 P.3d at 695-96 (citation
omitted). The record reflects that Dr. Bivens did not make such
conclusory opinions.
Tran further contends Dr. Bivens' testimony regarding
"incest" was inflammatory and not relevant, and that Dr. Bivens'
definition of incest 7 was not consistent with HRS § 707-741(1)
(2014). The State called Dr. Bivens to testify about "the
interpersonal dynamics for inter-household child sexual abuse."
6 CW alleged that Tran started to sexually abuse her when she was eight years old, but did not tell her mother until she was thirteen.
7 At trial, Dr. Bivens defined incest as follows:
Incest just refers to sex between an adult and a child when the adult is a household member, could be a blood family relative or a distant relative or a nonrelative, but someone who lives in the family setting with the child.
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Dr. Bivens was qualified to testify as an expert in the field of
clinical psychology, and he defined the term "incest" within
that context. Dr. Bivens explained that: "The majority of child
sexual abuse occurs in the child's home. The second most
commonplace [sic] is in the molester's home. And obviously in
the case of incest, those two places are the same place." 8 We
conclude that Dr. Bivens' testimony was relevant in aiding the
jury's understanding of the dynamics of child sexual abuse.
(4) Tran contends the circuit court plainly erred when
it did not qualify Tran's witness as an expert in front of the
jury. 9 The HRE does not preclude the circuit court "from
declining to qualify a witness as an expert in front of the
jury, so long as the requisite foundation for the witness's
testimony is established." State v. Metcalfe, 129 Hawaiʻi 206,
226, 297 P.3d 1062, 1082 (2013) (cleaned up). Moreover,
"[d]etermination by the court that a witness qualifies as an
expert is binding upon the trier of fact only as this relates to
admissibility of the expert's testimony." HRE Rule 702 cmt.
(2014).
8 Dr. Bivens' testimony is relevant within the context of CW's close relationship with Tran. CW testified that her father had lived with Tran and his family for periods of time, and that she would sleep over at Tran's home "for about a week or five days" each month.
9 Tran did not object when the circuit court decided to qualify Nurse Wristen outside the presence of the jury. "A complete failure to object will waive the point." See State v. Vliet, 91 Hawaiʻi 288, 299, 983 P.2d 189, 200 (1999) (citations omitted).
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On this record, we conclude that the circuit court did
not plainly err when it did not qualify Nurse Wristen as an
expert witness in the jury's presence.
(5) Tran contends the prosecutor's comments during the
State's opening, closing, and rebuttal statements constituted
prosecutorial misconduct. We review allegations of
prosecutorial misconduct under the harmless beyond a reasonable
doubt standard,
which requires an examination of the record and a determination of whether there is a reasonable possibility that the error complained of might have contributed to the conviction. Factors considered are: (1) the nature of the conduct; (2) the promptness of a curative instruction; and (3) the strength or weakness of the evidence against the defendant.
State v. Wakisaka, 102 Hawaiʻi 504, 513, 78 P.3d 317, 326 (2003)
(cleaned up).
We first address Tran's contention that the
prosecutor's opening statement presented an improper "factual
recitation of personal opinion." 10 In doing so, we observe that
10 Tran challenges the following statements made during the prosecutor's opening statement:
[CW] was 8 years old. . . . When [the CW] was 8, a man whom she loved and trusted was touching her and groping her, and she didn't know what to do. He was touching her private parts, her genitalia, with his hand. The first time it was outside of her clothes. She hoped that her daddy would walk through the front door. She was confused. But her daddy did not walk through the front door for a long time, and so [CW] just laid there and she took it.
The man who did that to [CW] is her dad's best friend. He's seated next to defense counsel. He is [Tran]. . . . (continued . . .)
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Tran has not demonstrated the prosecutor's remarks were
"speculative," nor that they "refer[red] to things the evidence
10(. . .continued)
. . . .
From the time that [CW] was 8 to 12 years of age, approximately from January of 2015 to January 31st of two thousand -- of 2020, [Tran] repeatedly sexually molested her. It occurred in the Pacific Heights homes that [Tran] either shared with her father or in the home that he lived in right next door to her father whenever [CW] would visit. [Tran] would place his hand on [CW's] chest or on her breast when she started developing breasts. [Tran] would rub his hand on her breast over the clothes and skin to skin. He would place his mouth on her breast, licking her breast. . . .
[Tran] asked her if she wanted to have sex, and when [CW] was 8 years old, she said yes. She didn't even know what sex was. [Tran] placed his mouth on what she calls her private part, in other words her genitalia. [Tran] licked her genitalia, which made her feel very uncomfortable. She was scared. [Tran] also inserted his finger into her vagina, into what she calls her private part, her genitals, and it hurt her, it caused her pain. . . .
[CW] wanted to tell. She was afraid to tell. She tried to tell her mom on more than one occasion, and she finally got the guts to tell her mother in May of 2020, on Mother's Day. . . .
The doctor who performed the examination is highly qualified. . . . The doctor examined [CW] and she found that [CW] had genital trauma, in other words[,] an injury consistent with sexual penetration with either a finger or with a penis. . . . It's called a transection to the hymen, in other words[,] a deep, healed tear to the hymen that's consistent with sexual penetration.
At the conclusion of this case, the State will ask that you find [Tran] guilty of the crime of Continuous Sexual Assault of a Minor Under the Age of 14. [Tran] was not related to [CW] in any way. The State will ask that you find him guilty as charged because he violated [CW].
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[would] not (and did not) show." See State v. Sanchez, 82
Hawaiʻi 517, 528, 923 P.2d 934, 945 (App. 1996) ("The State
should only refer in the opening statement to evidence that it
has a genuine good-faith belief will be produced at trial.")
After careful review of the record, we also determine
that the prosecutor's opening remarks do not appear to express
her personal views as to Tran's guilt. See State v. Barrios,
139 Hawaiʻi 321, 329, 389 P.3d 916, 924 (2016) ("[I]t is
generally recognized under Hawaiʻi case law that prosecutors are
bound to refrain from expressing their personal views as to a
defendant's guilt or the credibility of witnesses.") (cleaned
We next address Tran's contention that the
prosecutor's use of "we" and "us," during the State's closing
and rebuttal arguments, constituted prosecutorial misconduct.
"A prosecutor is allowed wide latitude in discussing the
evidence during closing argument . . . [and] may state, discuss,
and comment on the evidence as well as draw all reasonable
inferences from the evidence." State v. Pasene, 144 Hawaiʻi 339,
367, 439 P.3d 864, 892 (2019) (cleaned up). A prosecutor may
not, however, use inclusive pronouns in an attempt to "impl[y]
that the jury and the State ha[ve] similar interests and [are]
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working together" to convict the defendant. State v. Conroy,
148 Hawaiʻi 194, 202, 468 P.3d 208, 216 (2020).
The record reflects that the prosecutor used the words
"we" and "us" during her closing and rebuttal arguments in
general reference to evidence admitted (e.g., "we have . . . "),
or arguments made by the State (e.g., "we spoke about . . . ")
at trial. 11 Unlike in Conroy, it does not appear that "we" and
11 The prosecutor used "we" and "us" in the following context:
And we have little [CW] trying to protect herself in a way that a child -- only a child could. We have the unicorn onesie. And she told us that that was her way of trying to keep from being molested by [Tran]. . . .
At the beginning of this case, we spoke about child witnesses. If the only witness was a child and believed -- and you believed that child, that you could convict, you could find the defendant guilty.
. . . And we know that child molestation usually happens behind closed doors[.]
Members of the jury, although we spoke so much about a single witness, this is a case that has even more than the testimony of a single witness. . . .
. . . We have the testimony of [Dr. Natarajan], who is very qualified. . . .
What does [Dr. Bivens] tell us? He tells us that it's not the stranger who comes out of the bushes. . . .
. . . [CW's] mom would tell us that ages 10 and 11, that [CW] started acting kind of strangely[.]
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"us" were used in the instant case to create an "implication of
unity" or "the suggestion of an alliance between the State and
the jury" against Tran. See id. at 202-03, 468 P.3d at 216-17.
We therefore conclude that the prosecutor's usage of "we" and
"us" was not improper when considered within the context of the
11(. . .continued)
. . . [CW's dad] would tell us [CW] had the run of the house. [CW's dad] told us that [the] room was empty sometimes because [Tran's] mother had a house somewhere else. . . .
. . . That [Tran] during the same time period, January 1, 2015, to January 31, 2020 -- that he intentionally or knowingly resided or had recurring access -- that he resided in the same house as [CW] or had recurring access to her. We can check that off. . . .
. . . And we're going to talk about different ways that [CW] testified to each of these elements.
. . . We have [Tran's] sister, who read the police reports in this case, who read [CW's] transcript.
. . . And lo and behold, we have the sister testifying that she kicked [CW] out on Mother's Day. . . .
. . . We have the brother saying that [Tran] worked 24/7 or worked 7 days a week during the middle of the night. . . . . . . .
. . . Well, the defense's own witness . . . tells us the first line out of his mouth was, well, if my mother came -- was there. So that tells us that sometimes his mom slept over somewhere else.
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prosecutor's statements, the evidence presented, and the
reasonable inferences that a jury could draw from the evidence.
See State v. Brown, 157 Hawaiʻi 354, 380-81, 577 P.3d 1045, 1071-
72 (2025) (determining that the prosecutor's use of "we know,"
during closing and rebuttal arguments, "were permissible turns
of phrase uttered in sentences drawing reasonable inferences
from the trial evidence and did not constitute prosecutorial
misconduct" when considering the facts and circumstances of the
case).
We finally consider Tran's contention that the
prosecutor, during rebuttal argument, improperly stated that
"The State asks that you return a just verdict in this case and
that you find [Tran] guilty as charged[.]" (Emphasis added.)
Tran did not object to the prosecutor's statement.
Nevertheless, the circuit court sua sponte struck the word
"just" from the record.
The prosecutor's reference to a "just" verdict was
improper because it "diverted the jury from its duty to decide
the case on the evidence." See Conroy, 148 Hawaiʻi at 202, 468
P.3d at 216 (cleaned up). We conclude, however, that the
circuit court's prompt curative action rendered the alleged
prosecutorial misconduct harmless beyond a reasonable doubt.
See Wakisaka, 102 Hawaiʻi at 513, 78 P.3d at 326.
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II. State's Point of Error
Pursuant to our conclusions in part I above, the
State's cross-appeal is moot. See State v. Okuda, 71 Haw. 434,
456, 795 P.2d 1, 13 (1990); State v. Cullen, 86 Hawaiʻi 1, 13,
946 P.2d 955, 967 (1997).
For the foregoing reasons, we affirm the Judgment.
DATED: Honolulu, Hawaiʻi, January 28, 2026.
On the briefs: /s/ Katherine G. Leonard Presiding Judge Thomas M. Otake, for Defendant-Appellant/ /s/ Clyde J. Wadsworth Cross-Appellee. Associate Judge
Daniel A.J. Hugo, /s/ Kimberly T. Guidry Deputy Prosecuting Attorney, Associate Judge City and County of Honolulu for Plaintiff-Appellee/ Cross-Appellant.