84 Hawai'i 1, State v. Arceo
| Decision Date | 18 November 1996 |
| Docket Number | No. 16950,16950 |
| Citation | 928 P.2d 843 |
| Parties | 84 Hawai'i 1 STATE of Hawai'i, Plaintiff-Appellee, v. Anthony ARCEO, Defendant-Appellant. |
| Court | Hawaii Supreme Court |
Carolyn Burton of Parton & Burton, on the briefs, Wailuku, for defendant-appellant Anthony Arceo.
Robert K. Kekuna, Deputy Prosecuting Attorney, on the briefs, Wailuku, for plaintiff-appellee State of Hawai'i.
Before MOON, C.J., and KLEIN, LEVINSON, NAKAYAMA and RAMIL, JJ.
Following a jury trial, the defendant-appellant Anthony Arceo was found guilty as charged of committing one count of sexual assault in the third degree (Count One), in violation of Hawai'i Revised Statutes (HRS) § 707-732(1)(b) (1993), 1 and one count of sexual assault in the first degree (Count Two), in violation of Hawai'i Revised Statutes (HRS) § 707-730(1)(b) (1993), 2 upon his six-year-old son. Arceo appeals the judgment of conviction entered by the circuit court pursuant to the jury's verdicts.
All of Arceo's points of error on appeal stem from the decision of the State (prosecution) to aggregate multiple acts of alleged "sexual contact," see supra note 1, into Count One of the indictment returned against him and multiple acts of alleged "sexual penetration," see supra note 2, into Count Two of the indictment. Thus, Arceo urges that the circuit court erred in: (1) refusing to require the prosecution "to elect the specific acts upon which convictions ... were being sought" as to each count, in violation of his constitutional right to a unanimous verdict implicit in the due process clause of article I, section 5 of the Hawai'i Constitution; 3 (2) "failing to instruct the jury that it must agree unanimously that [Arceo] committed the same specific act in reaching ... guilty verdict[s]" as to each count, likewise in violation of his constitutional right to a unanimous verdict; and (3) "refusing to exclude evidence of other crimes and bad acts," in violation of Hawai'i Rules of Evidence (HRE) Rules 403 (1993) 4 and 404(b) (1993). 5 The prosecution counters that, "because sexual assault is a continuing offense," (1) it was not obligated "to elect an incident of sexual abuse upon which to rely" in order to prove each of the counts charged in the indictment, and (2) the trial court was not obligated to give a "special unanimity instruction" to the jury. Accordingly, the prosecution concludes that Arceo's "due process rights were not violated[.]" The prosecution does not respond directly to Arceo's point of error implicating HRE 403 and 404(b).
For the reasons discussed below, we vacate Arceo's judgment of conviction and remand the matter to the circuit court for a new trial.
In December 1989, Arceo transported his six-year-old son ("the Minor") from San Diego, California (their home at the time) to the County of Maui. Arceo claimed to have had an acquaintance who lived on the island, but, upon arrival, he discovered that the individual no longer resided at the address with which he had been provided. Arceo was directed to the Pu'unBBBene Homeless Shelter [hereinafter, "the shelter"], where he and the Minor obtained temporary housing.
At the shelter, they lived in a designated area--demarcated by suspended sheets, curtains, or blankets for privacy--that contained a single bed for the two to share. The shelter provided showers that were shared in common by the occupants. Arceo and the Minor customarily showered together because, according to Arceo, the Minor "was a very young boy," did not "know how to take [a] shower yet by himself," and Arceo "had to scrub medicated shampoo in [the Minor's] hair to take off the bugs and fleas" and was "teaching him how to do ... this personal hygiene." Thus, according to Arceo, he would "wash [the Minor's] entire body down, cleaning him." 6
The Minor alleged that, during his time spent at the shelter, Arceo engaged in a variety of sexual acts with him. Specifically, the Minor claimed that Arceo: (1) twice inserted his finger into the Minor's "butt" while the Minor was taking a shower; (2) inserted his penis into the Minor's "butt" while the Minor was sleeping on the bed provided by the shelter; (3) twice performed fellatio upon the Minor; (4) placed his penis on the Minor's penis while the Minor was on the bed; and (5) placed his penis on the Minor's back while the Minor was either on the bed or the floor of the "bedroom."
In May 1990, an officer of the Maui Police Department, who was responding to a communication from the San Diego District Attorney's Office, took protective custody of the Minor at the Kahului Elementary School and deposited him into the care of the Child Protective Services (CPS) arm of the State of Hawai'i Department of Human Services. CPS then returned the Minor to his mother in San Diego. On June 15, 1990, the Minor was interviewed by a social worker in the employ of the Center for Child Protection of the San Diego Children's Hospital.
On July 24, 1992, the Maui grand jury returned an indictment against Arceo, which charged him as follows:
COUNT ONE:
That during the period between August 16, 1989, to May 4, 1990, in the County of Maui, State of [Hawai'i], ANTHONY ARCEO did knowingly subject [the Minor], a person less than fourteen (14) years old, to sexual contact or cause [the Minor] to have sexual contact with him, thereby committing the offense of Sexual Assault in the Third Degree in violation of Section 707-732(1)(b) of the [Hawai'i] Revised Statutes.
COUNT TWO:
That during the period between August 16, 1989, to May 4, 1990, in the County of Maui, State of [Hawai'i], ANTHONY ARCEO did knowingly subject to sexual penetration another person, to wit, [the Minor], who was less than fourteen (14) years old, thereby committing the offense of Sexual Assault in the First Degree in violation of Section 707-730(1)(b) of the [Hawai'i] Revised Statutes.
On January 4, 1993, in anticipation of the commencement of trial the following week, Arceo filed a motion in limine, which sought an order from the circuit court "excluding evidence regarding [Arceo's] prior bad acts under [HRE] 403 and 404(b)[.]" Attached to the motion in limine was an affidavit of defense counsel, which averred in relevant part:
5. After reviewing the Grand Jury transcript[,] Affiant has identified as least nine (9) alleged sexual assaults to which [the Minor] testified;
6. Affiant has reviewed the Indictment and only two counts of sexual assault are charged;
7. It would be unfair to [Arceo] if the [prosecution] did not specify the two incidents charged in the Indictment and to exclude reference to all others[.]
In addition, Arceo's memorandum in support of the motion in limine advanced, inter alia, the following argument:
Count One of the Indictment charges [Arceo] with Sexual Assault in the Third Degree and Count Two charges him with Sexual Assault in the First Degree. Both of these offenses allegedly occurred between August 16, 1989 and May 4, 1990. The [Minor] testified at the ... Maui Grand Jury hearing wherein he made at least nine separate allegations of sexual abuse by his father. These allegations were: "He put his finger in my bottom"; "he put his fingers on my penis"; "he put his fingers on my butt ... in my butt"; "he put his mouth on my penis".... Upon further encouragement from the prosecutor, [the Minor] also said [that Arceo] put his finger inside [the Minor's] butt "more than once", "in the room and sometimes inside the shower".... [The Minor] also said [that Arceo] put his penis "on my penis", "more than once" ...; "sometimes on the bed and sometimes on the floor" ...; "sometimes in the day and sometimes night".... [The Minor] also said [that Arceo] put his penis in [the Minor's] butt "more than once", sometimes "in the room"; sometimes "in the shower".... Also, [the Minor] said [that Arceo] put his mouth on [the Minor's] penis, "more than once"....
The [prosecution] has somehow sifted through all of these allegations and charged [Arceo] with having sexual contact with his son (Count One) and subjecting him to sexual penetration (Count Two). It is not clear which two particular incidents alleged above form the bases for the charges. All of the other alleged bad acts should be excluded under [HRE] Rules 403 and 404(b)[.]
(Emphasis added.)
The prosecution filed a memorandum in opposition to Arceo's motion in limine on January 7, 1993, which contained the following argument and representations:
[Arceo] does not seek greater specification of the alleged dates and times of the sexual offenses charged in order to prepare a defense or to avoid double jeopardy. To meet any concerns of double jeopardy, however, the [prosecution] will stipulate that the present indictment covers all alleged sexual assaults [plural] of the [M]inor by [Arceo] during the specified period while they were living on Maui.
However, [Arceo] seeks only to limit the evidence to two specified occurrences, presumably so that the jury will not learn the full extent of [Arceo's] crime [singular]. The [prosecution] asserts that[,] in this case, [Arceo] has failed to show a defect in the charge or any prejudice that would justify granting his motion, and[,] further, that given the age of the minor complainant and the continuing nature of the offense [singular], there is good reason for denying [Arceo's] motion.
....
Minors can rarely be expected to recall the specific date, time, and details of repeated sexual offense.... Accordingly, it has been held that where a defendant is accused of a sexual offense involving a minor, it is not necessary that a specific date for the offense be given because the time of the offense is not considered an indispensable ingredient of the offense. It is sufficient under such a charge that the time of the offense be given with as much particularity as possible under the circumstances based on the information available to the prosecution[,] provided that the time stated be within the...
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