In re Tc
| Citation | 214 P.3d 1082,121 Haw. 92 |
| Decision Date | 24 June 2009 |
| Docket Number | No. 28295.,28295. |
| Parties | In the Interest of TC, a Minor. |
| Court | Court of Appeals of Hawai'i |
Taryn R. Tomasa, Deputy Public Defender, on the briefs, for Minor-Appellant.
Christopher J. Roehrig (Roehrig Roehrig & Wilson), Kamuela, on the briefs, for Parents-Appellants.
Linda L. Walton, Deputy Prosecuting Attorney, on the briefs, for Plaintiff-Appellee.
Minor-Appellant (TC) and his parents (Parents) appeal from the Decree Re: Law Violation Petitions filed on September 26, 2006 (Decree), and the Findings of Fact, Conclusions of Law and Order Denying Motion for Reconsideration filed December 19, 2006 (Reconsideration Order) in the Family Court of the Third Circuit (Family Court).1
After a hearing based on evidence that was stipulated into the record, TC was adjudicated to have committed acts, prior to reaching eighteen years of age, which would constitute violations of Hawai`i sexual assault laws prohibiting certain sexual conduct involving persons who are less than fourteen-years old. Based upon our review of the record and the briefs submitted by the parties, and having given due consideration to the issues raised, arguments advanced, the relevant rules, statutes, constitutional provisions, and case law, we hold that: (1) there was insufficient evidence to support the allegation that TC engaged in prohibited sexual conduct with his younger brother; (2) any person who is alleged, pursuant to Hawaii Revised Statutes (HRS) § 571-11(1), to have committed an act prior to achieving eighteen years of age which would constitute a violation of law (as described in HRS § 571-11(1)) shall be advised of his or her right to testify and, in every HRS § 571-11(1) adjudication in which the accused minor does not testify, a family court must engage in an age-appropriate colloquy with the accused minor to obtain an on-the-record waiver of that right; (3) parents of an accused minor have standing throughout juvenile proceedings conducted pursuant to HRS § 571-11(1); (4) minors under the age of fourteen are subject to adjudication for violations of HRS §§ 707-730(1)(b) and 707-732(1)(b), which prohibit certain sexual conduct involving minors under the age of fourteen; (5) TC's Due Process and Equal Protection Clause rights were not violated when an HRS Chapter 571 petition was filed against him but not against two other minors who also admittedly engaged in prohibited sexual conduct with TC who was also a minor under the age of fourteen at the time of the sexual activities; (6) there is no fundamental personal privacy right for minors under the age of fourteen to engage in sexual activities with other children under the age of fourteen; and (7) Parents' argument that the Family Court erred in denying their request to cross-examine the makers of certain written reports is waived. For these reasons, we reverse as to Count VI of the petition filed against TC and, because the Family Court did not determine whether TC knowingly and voluntarily waived his right to testify, which we cannot conclude was harmless error, we vacate and remand this matter for further proceedings as to the remaining counts.
TC was born in September of 1990. In the fall of 2003, another minor (Child #1) alleged that sometime between January of 2003 and October 2003, sexual contact occurred between TC and Child # 1, who was born in April of 1996. Child # 1 told his father about sexual contact with TC and TC's younger brother (Brother). Child # 1's father contacted TC's father and informed him of what Child # 1 had told him. TC's father reportedly showed serious concern and said "he would get to the bottom of it and find out what was going on." Child # 1's father also made a report to the Hawai`i County Police Department (HCP). HCP Detective Aimee Wana (Det. Wana) conducted an investigation of the allegations.
TC was twelve-years old at the time of the alleged sexual contact with Child # 1, who was seven-years old. Child # 1's father told Det. Wana that Child # 1 had admitted to him that he sometimes played with himself in a sexual manner. Child # 1 told his father he learned how to do this from TC and Brother, who would drop their pants and show him how to do it. Child # 1 also reported to his father that he had seen pornographic magazine pictures two times while in a "fort" the minors played in at TC's residence. Child # 1 said that while the boys looked at the pictures, TC and Brother would touch him and he would touch them.
Det. Wana contacted Parents and obtained consent to search the "fort" and other areas where the children played. No pornographic pictures were found during the search but TC's mother told Det. Wana that TC's father had found torn up pornographic pictures earlier that year in their yard and had thrown them away. TC's mother said that the boys told her that they found the pictures on the side of the road a half block from their house.
On October 8, 2003, pursuant to the investigation, Det. Wana observed an interview of Child # 1 conducted by Dr. Terry Fujioka of the Children's Justice Center. Both of Child # 1's parents were present at the interview. During the interview, Child # 1 reportedly described in detail incidents of "touching of private parts" that took place with TC and Brother. Child # 1 stated that he believed that it was "all of us" who decided to do this. Child # 1 recalled that the sexual encounters between Child # 1 and TC began when TC sucked Child # 1's penis with his mouth. Child # 1 admitted that on another occasion, he had sucked TC's penis when TC had asked him to.
Child # 1 also reported engaging in acts of anal penetration with TC. Child # 1 told of how TC had put his penis in his "butt hole." Child # 1 said he told TC to stop it but that he did not stop. Child # 1 also remembered putting his penis in TC's "butt hole" once but did not recall if TC had told him to do it. Child # 1 reported seeing TC and Brother touching each other's penises. Child # 1 said he was told by Brother about two other boys that TC and Brother had or were having sexual contact with. Child # 1 did not allege that force or coercion was involved in the incidents he described.
TC was interviewed by Det. Wana on October 24, 2003. Parents were present during the interview. TC reportedly confirmed that incidents of fellatio and anal penetration had occurred between himself and Child # 1 on several occasions. TC said he had first become aware of sexual behavior when he visited his uncle on Maui and saw pictures on the TV of people engaging in sexual activity and also sometime later when he had found a magazine with pornographic pictures beside the road near Parents' house.
TC reportedly told Det. Wana about sexual touching and anal penetration with another boy (Child #2), who was born in September of 1989. This contact occurred during sleep-overs at Child #2's house and when Child #2 slept over at TC's house. TC denied sexual contact with any other children or adults.
At the conclusion of the interview, Det. Wana placed TC under arrest for Sexual Assault in the First Degree in violation of HRS § 707-730(1)(b). TC was released to the custody of Parents about one hour later.
At the time of TC's release from police custody, his mother told Det. Wana that TC was "underdeveloped both mentally and emotionally" and had been in "Special Education" since the first grade. She said that TC performed math at about the fifth grade level and reading on the third or fourth grade level even though he was in the seventh grade at that time.
On August 3, 2004, a petition under HRS Chapter 571 (Petition) was filed by the Prosecuting Attorney of the County of Hawai`i (State) in the Family Court. The Petition alleged that TC committed seven counts of Sexual Assault in the First Degree, in violation of HRS § 707-730(1)(b) (Supp.2002)2 and three counts of Sexual Assault in the Third Degree, in violation of HRS § 707-732(1)(b) (Supp.2002).3 TC was alleged to have violated the law as follows:
COUNT I (H-65210/KN)
Sometime between January 1, 2003, and October 23, 2003, the exact date being unknown, in Kona, County and State of Hawai`i, [TC] knowingly subjected to sexual penetration [Child # 1], a person who was less than fourteen years old, by knowing [sic] subjecting [Child # 1] to fellatio, thereby committing the offense of Sexual Assault in the First Degree, in violation of Section 707-730(1)(b), Hawaii Revised Statutes, as amended.
Sometime between January 1, 2003, and October 23, 2003, the exact date being unknown, in Kona, County and State of Hawai`i, [TC] knowingly subjected to sexual penetration [Child # 1], a person who was less than fourteen years old, by knowingly subjecting [Child # 1] to anal intercourse, thereby committing the offense of Sexual Assault in the First Degree, in violation of Section 707-730(1)(b), Hawaii Revised Statutes, as amended.
Sometime between January 1, 2003, and October 23, 2003, the exact date being unknown, in Kona, County and State of Hawai`i, [TC] knowingly subjected to sexual penetration [Child # 1], a person who was less than fourteen years old, by knowingly subjecting [Child # 1] to fellatio, thereby committing the offense of Sexual Assault in the First Degree, in violation of Section 707-730(1)(b), Hawaii Revised Statutes, as amended.
Sometime between January 1, 2003, and October 23, 2003, the exact date being unknown, in Kona, County and State of Hawai`i, [TC] knowingly subjected to sexual penetration [Child # 1], a person who was less than fourteen years old, by knowingly subjecting [Child # 1] to anal intercourse, thereby committing the offense of Sexual Assault in the First Degree, in violation of Section 707-730(1)(b), Hawaii Revised Statutes, as amended.
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