State v. Willenboeg

154 Haw. 39

Opinion

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed Intermediate Court of Appeals CAAP-XX-XXXXXXX 23-FEB-2024 07:56 AM Dkt. 120 SO

NO. CAAP-XX-XXXXXXX

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

STATE OF HAWAI#I, Plaintiff-Appellee, v. MICHAEL T. WILLENBOEG, Defendant-Appellant

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT (CRIMINAL NO. 1CPC-XX-XXXXXXX)

SUMMARY DISPOSITION ORDER (By: Leonard, Acting Chief Judge, Hiraoka and Wadsworth, JJ.)

Defendant-Appellant Michael T. Willenborg (Willenborg)

appeals from a July 23, 2019 Judgment of Conviction and Probation

Sentence; Notice of Entry (Judgment) entered by the Circuit Court

of the First Circuit (Circuit Court).1 Willenborg was convicted

of: (1) Sexual Assault in the Third Degree, in violation of

Hawaii Revised Statutes (HRS) § 707-732(1)(a) (2014), as a lesser

included offense; (2) Abuse of Family or Household Members, in

violation of HRS § 709-906 (1) (Supp. 2016) and (8) (2014); and

(3) Abuse of Family or Household Members, in violation of HRS §

709-906 (1) (Supp. 2016) and (5) (2014).

1 The Honorable Todd W. Eddins presided. NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Willenborg raises two points of error on appeal,

contending that the Circuit Court erred when it: (1) gave a

modified reasonable doubt instruction over Willenborg's

objection; and (2) did not allow Willenborg to cross-examine the

complaining witness (CW) regarding past sexual activity or

present video evidence of the same to attack CW's credibility.

Upon careful review of the record and the briefs

submitted by the parties, and having given due consideration to

the arguments advanced and the issues raised by the parties, we resolve Willenborg's points of error as follows:

(1) Willenborg argues that the Circuit Court erred in

substituting its own jury instruction on reasonable doubt in lieu

of Hawai#i Pattern Jury Instructions - Criminal (HAWJIC) 3.02.

This court has previously reviewed the modified jury instruction

that is at issue in this case. See State v. Char,

CAAP-XX-XXXXXXX, 2020 WL 7028600, *1-*5 (Haw. App. Nov. 30, 2020)

(SDO). Here, as in Char, viewing the Circuit Court's jury

instructions as a whole, we conclude that the instructions

correctly conveyed the concept of reasonable doubt. See id. In

addition, contrary to Willenborg's assertion, the Circuit Court

did in fact instruct the jury that "[e]ach of you must decide the

case for yourself[.]" We conclude that the modified jury

instructions were not prejudicially insufficient, erroneous,

inconsistent, or misleading and Willenborg's first point of error

is without merit.

(2) Willenborg argues that the Circuit Court violated

his constitutional rights to present a complete defense and

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

cross-examination when it denied his motion to admit videos

depicting explicit sex acts between him and CW. Willenborg

contends that the sex videos were relevant to his perception of

CW's consent, and that their relevance clearly outweighed any

prejudice.

"The scope of cross-examination is generally within the

sound discretion of the trial court. While the right of

cross-examination protected by the Confrontation Clause of the

Sixth Amendment may not be unduly restricted, it has never been held that this right is absolutely without restriction." State

v. Balisbisana, 83 Hawai#i 109, 114, 924 P.2d 1215, 1220 (1996)

(cleaned up).

Here, CW testified, inter alia, that prior sexual

activity with Willenborg was consensual, he wanted to take

videos, he made her feel beautiful, and she did anything he

wanted, including vaginal intercourse, anal intercourse,

fellatio, and placing her mouth on his anus. On cross-

examination, CW confirmed that she told Willenborg she

"thoroughly enjoyed" whatever he enjoyed. Willenborg also

testified that CW would say things that made him believe she

enjoyed their various sexual activities. We conclude that there

was sufficient testimony elicited for the jury to adequately

gauge the past sexual behavior between CW and Willenborg and his

Sixth Amendment right to cross-examination was satisfied. See

id. Thus, the Circuit Court did not err in considering whether

the probative value of the sex videos was substantially

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outweighed by the danger of unfair prejudice. State v. Acacio,

140 Hawai#i 92, 99, 398 P.3d 681, 688 (2017).

We further conclude that the Circuit Court did not

abuse its discretion in determining that the danger of unfair

prejudice in this case was considerable, and particularly

considering the other evidence in the record, the probative value

of the sex videos was minimal.

Finally, we conclude that the Circuit Court did not

violate Willenborg's constitutional rights or abuse its discretion in the instances where the court sustained objections

to some of defense counsel's questions regarding CW's level of

enjoyment of the prior sex acts between her and Willenborg.

For these reasons, the Circuit Court's July 23, 2019

Judgment is affirmed.

DATED: Honolulu, Hawai#i, February 23, 2024.

On the briefs: /s/ Katherine G. Leonard Acting Chief Judge Jonathan Burge, for Defendant-Appellant. /s/ Keith K. Hiraoka Associate Judge Sonja P. McCullen, Deputy Prosecuting Attorney, /s/ Clyde J. Wadsworth City and County of Honolulu, Associate Judge for Plaintiff-Appellee.