State Of Haw.‘i v. Running Bear

Decision Date19 August 2010
Docket NumberNo. 29191.,29191.
Citation237 P.3d 1156,124 Hawai'i 90
PartiesSTATE of Hawai‘i, Respondent/Plaintiff-Appellee, v. Robert James BEHRENDT aka Running Bear, Petitioner/Defendant-Appellant.
CourtHawaii Supreme Court


Ronette M. Kawakami, Deputy Public Defender, for petitioner/defendant-appellant.

Linda L. Walton, Deputy Prosecuting Attorney, for respondent/plaintiff-appellee.

MOON, C.J., NAKAYAMA, DUFFY, and RECKTENWALD, JJ.; with ACOBA, J., dissenting.

Opinion of the court by RECKTENWALD, J. Defendant Robert Behrendt, also known as Running Bear, was convicted of sexual assault for conduct involving SI, a minor under the age of 16. We must decide whether evidence of sexual contacts between Behrendt and SI that occurred prior to the conduct charged in this case was admissible under Hawai‘'i Rules of Evidence (HRE) Rules 404(b) and 403, cited infra. For the reasons set forth below, we conclude that the Circuit Court of the Third Circuit 1 did not err in admitting that evidence.

SI grew up in Kona, Hawai‘i, but moved to South Dakota when she was 11 to live with Behrendt and her sister, LI, who was married to Behrendt. The evidence presented by the State of Hawai‘i at trial established that after SI arrived in South Dakota, Behrendt suggested that SI shower with him when they were alone. SI refused initially, but subsequently agreed. Behrendt had SI touch him sexually during these showers, and also touched SI. Eventually, they began to have intercourse, and Behrendt told SI not to tell anyone. SI, who was confused and frightened by what was happening, complied with that request.

When SI was 14, she returned to Kona with Behrendt and LI. Behrendt and SI continued to have sexual relations. SI eventually broke off her sexual relationship with Behrendt, but did not report it to police until more than a year later. Behrendt was subsequently indicted for three counts of sexual assault in the first degree in violation of Hawai‘i Revised Statutes (HRS) § 707-730(1)(c) (Supp.2006) 2 for the conduct which occurred in Kona. The indictment grouped the three counts based on the time periods in which SI lived at three different houses in Kona: (1) Count 1: the Kamani Trees house, covering the period from September 2002 through February 2003, (2) Count 2: the Aloha Kona house, covering the period from February 2003 through May 2004; and (3) Count 3: the Pumehana house, covering the period from May 2004 through August 2004. Behrendt was also indicted for kidnapping in violation of HRS § 707-720(1)(d) & (e) (1993) 3 (Count 4) with respect to an incident that occurred in January 2005.

Behrendt moved in limine to exclude testimony concerning the instances of sexual contact that occurred while SI was living in South Dakota. 4 The circuit court held that the evidence was probative of motive, opportunity and plan, and that its probative value was not outweighed by its prejudicial effect. A jury found Behrendt guilty of the lesser included offense of sexual assault in the third degree in violation of HRS § 707-732 (Supp.2006) 5 on Counts 1-3, and the lesser included offense of unlawful imprisonment in the first degree in violation of HRS § 707-721 (1993) 6 on Count 4. In a summary disposition order (SDO), the Intermediate Court of Appeals (ICA) affirmed the convictions on Counts 1, 2, and 4, but vacated the conviction on Count 3 because the circuit court did not properly instruct the jury on the law applicable to Count 3 at the time of the offense.

In his application for a writ of certiorari (application), Behrendt argues that the circuit court erred in admitting the South Dakota evidence. However, we agree with the circuit court that the evidence was probative of Behrendt's opportunity to commit the offenses in Hawai‘i without being detected. Moreover, the circuit court did not abuse its discretion in determining that the admission of the evidence would not unduly prejudice Behrendt.

Behrendt also argues that the circuit court erred in instructing the jury on the lesser included offense of sexual assault in the third degree, and that there was insufficient evidence to support the convictions on Counts 1-3 because the evidence referred only to sexual penetration, rather than sexual contact. However, for the reasons set forth below, we reject those arguments.

Accordingly, we affirm the ICA's November 24, 2009 judgment.

A. Pre-trial Proceedings Regarding Other Acts Evidence

The State filed a Notice of Intent to Use Specified Evidence, to “give [ ] notice that the State intends to present evidence relating to [Behrendt's] pattern of threats to [SI], and the grooming and ongoing nature/length of their relationship.” The State attached police reports that contained allegations of sexual contacts in South Dakota. In response, Behrendt filed a motion in limine, arguing that the evidence was inadmissible under HRE Rules 401, 403 and 404. He also asserted that SI was fabricating the allegations because Behrendt and LI were in the middle of a divorce and custody dispute over their daughter.

The circuit court granted Behrendt's motion without prejudice, explaining that the State did not clearly identify all the prior bad act evidence it intended to offer in its case-in-chief or explain how it was relevant, and did not analyze the balancing of probative value versus prejudicial effect.

The State filed an amended notice and motion to reconsider. The State included detailed descriptions of the expected testimony of each proposed witness, and argued that the evidence of the prior acts was relevant “to show the defendant's motive, purpose and intent; to show opportunity; and to show why [SI] did not, for years, disclose the abuse.” Additionally, the State explained why each witnesses' testimony was relevant, and analyzed its admissibility under HRE Rule 403. Behrendt filed an opposition arguing, inter alia, that “there are 23 months of context in Hawaii, which is abundantly sufficient to establish context.”

The circuit court granted in part and denied in part the State's motion for reconsideration. The circuit court rejected the State's argument that prior bad act evidence is always relevant to explain the context of the relationship between the defendant and complaining witness, and concluded that the expected testimony of two of the State's witnesses 7 was not admissible because the probative value did not outweigh the prejudicial effect and the State's offer of proof was vague and cumulative. The circuit court's order additionally provided, in relevant part:

The court grants that portion of State's Motion to Reconsider admission of testimony concerning “other acts” that allegedly occurred outside of the State of Hawaii as follows. The Court concludes that the issue of “delayed reporting” is squarely before the jury, as well as possible issues of consent concerning the kidnapping charge. The Court finds that the “other bad acts” allegedly committed outside of the State of Hawaii as described by [SI], [LI] and [LI's friend, Trista], are relevant to show motive, opportunity and plan.

The court having concluded that the testimony is relevant, next balances whether relevant evidence should be excluded because its probative value is substantially outweighed by other factors, including danger of unfair prejudice, confusion of issues or misleading the jury, pursuant to Rule 403, [HRE].

Specific factors that the court has considered in the Rule 403 analysis in deciding whether to admit “other acts”, include the strength of evidence of the prior act, the time elapsed between the prior and [sic] crimes charged, the need for the other acts, efficacy of alternative proof, and whether the other acts are likely to raise overmastering hostility. The Court concludes that the prejudice of admitting the testimony of [SI], [LI] and [LI's friend, Trista], does not outweigh the relevance, and that a cautionary instruction ameliorates any prejudice.



The court finds that most of the witnesses who will testify to the relationship between the defendant and the complaining witness will present testimony that could be considered “other bad acts”. Many are family and friends who may have been in close contact with the defendant and minor, several living in the same household. Some of the testimony describes acts, such as holding hands and kissing, that could be considered either innocent or a “bad act”.

The court finds and concludes that the testimony of the following witnesses concerning “other acts” or “bad acts” that happened in Hawaii is relevant to motive, opportunity, intent and plan[.] The court further finds that the probative value is not “substantially outweighed” by other factors, including danger of unfair prejudice, confusion of issues or misleading the jury. The court finds that a cautionary instruction ameliorates any prejudice....

(Emphases added).

B. Trial

The relevant evidence at trial was, in summary, as follows.

1. State's Case
a. SI's Testimony

(1) South Dakota

In November of 1999, when SI was eleven years old, she moved out of her parents' home in Kona and went to live with LI and Behrendt in South Dakota. 8 SI testified that in South Dakota, Behrendt would take her to school every day, pick her up in the afternoon and take her back to the apartment, and they would talk and play video games while LI was still at work. Behrendt would talk with SI about “other boys” and said, [y]ou'll soon have a boyfriend.” After living there for a few months, SI and Behrendt went to the pool one day, and when they got home [Behrendt] asked [her] to take off [her] clothes, and [ ] take a shower together[,] but SI refused. The next time they went to the pool, however, Behrendt told SI that “it was okay” for her to shower with him and that he had asked LI and that she said it was okay.” After that, SI “trusted him” and showered with Behrendt while both of them were naked, and [Behrendt] would be...

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