State v. Adams

• Decision Date: 09 September 1994
• Docket Number: No. 16134,16134
• Citation: 880 P.2d 226,10 Haw.App. 593
• Parties: STATE of Hawai'i, Plaintiff-Appellee, v. Barton ADAMS, Defendant-Appellant.
• Court: Hawaii Court of Appeals

Page 226

880 P.2d 226

10 Haw.App. 593

STATE of Hawai'i, Plaintiff-Appellee, v. Barton ADAMS, Defendant-Appellant.

No. 16134.

Intermediate Court of Appeals of Hawai'i.

Sept. 9, 1994.

Certiorari Denied Sept. 29, 1994.

Syllabus by the Court

1. A motion for a new trial is addressed to the trial court's sound discretion, and its decision will not be disturbed absent a clear abuse of discretion. Abuse of discretion occurs when the trial court clearly exceeds the bounds of reason or disregards rules or principles of law or practice to the substantial detriment of one of the litigants.

2. A motion for a new trial based on juror misconduct can be based on (1) failure of one or more jurors to respond truthfully to questions posed during voir dire, or (2) misconduct by one or more jurors during the course of the trial. In either event, the ultimate inquiry is whether the misconduct deprived the defendant of the fundamental right to a trial by twelve impartial jurors. If any member or members of the jury was shown not to be impartial, the trial court's failure to grant a new trial is an abuse of discretion.

3. When the basis for the motion is juror misconduct during jury deliberations, the first responsibility of the trial court is to determine whether the misconduct is of a nature which could substantially prejudice the defendant's right to a fair trial. Whether it does rise to that level is ordinarily left to the discretion of the trial court.

4. Where the trial court determines that the juror misconduct could substantially prejudice the defendant's right to a fair and impartial jury, a rebuttable presumption of prejudice is raised and the court must investigate the totality of circumstances to determine if the misconduct impacted the jury's impartiality. In order to overcome the rebuttable presumption, the prosecution must show that the alleged deprivation of the right to a fair trial was harmless beyond a reasonable doubt.

5. Where the juror misconduct consists of improper comments and the defendant makes a prima facie showing that the comments have been used as a circumstance against him or her, a presumption of prejudice is created. In that event, the verdict will be set aside unless the prosecution clearly shows beyond a reasonable doubt that the juror's comments could not have affected the verdict.

6. The trial court's findings are reviewed under the clearly erroneous rule, and will not be set aside unless the findings are not supported by substantial evidence or the reviewing court is left with a definite and firm conviction that a mistake has been made.

7. The court's conclusions of law are freely reviewable and will not be overturned if they reflect the application of the correct rule of law.

8. In a prosecution for Sexual Assault in the Second Degree, Hawai'i Revised Statutes (HRS) §§ 707-731(1)(a) and 707-700 (Supp.1992) require proof beyond a reasonable doubt that the alleged victim did not consent to the act of penetration and that the defendant knew that he or she did not have the consent of the alleged victim to engage in the act of penetration.

9. Where a term used in a statute is not defined by the statute, the courts are required to construe that term so as to give effect to the intention of the legislature as determined from the language of the statute itself; and where there is nothing in the statute to indicate that the legislature intended to use the term in any but its usual sense, the term must be given its plain and obvious meaning.

10. Consent signifies voluntary agreement and may be express or implied.

11. An essential element of the offense of Sexual Assault in the Second Degree is that the defendant acted knowingly. A person acts knowingly with respect to attendant circumstances when that person is aware that such circumstances exist. HRS § 702-206(2)(b) (1985).

12. A person is not guilty of an offense unless he or she acted knowingly, as the law specifies, with respect to each element of the offense. HRS § 702-204 (1985).

13. In any prosecution for an offense, it is a defense that the accused engaged in the prohibited conduct under ignorance or mistake of fact if the ignorance or mistake negatives the state of mind required to establish an element of the offense. HRS § 702-218(1) (1985).

14. A defendant's claim of mistake or lack of knowledge entitles him or her to an acquittal if the trier of fact determines from all the evidence that there is a reasonable doubt as to the defendant's guilt. HRS § 701-115 (1985).

15. Although physical or verbal resistance is not an element that needs to be proven in a prosecution of a sexual assault charge, evidence of its absence is probative of the defendant's state of mind. Additionally, its absence may be considered by the jury in determining whether the alleged victim impliedly consented.

Renee M.L. Yuen and Richard K. Perkins (Yuen & Perkins, of counsel), on the briefs, Honolulu, for defendant-appellant.

Larry L. Butrick, Pros. Atty., and Mark R. Simonds, Deputy Pros. Atty., County of Maui, on the brief, Wailuku, for plaintiff-appellee.

Before BURNS, C.J., and HEEN and ACOBA, JJ.

HEEN, Judge.

In this appeal from his Second Circuit Court jury trial conviction on three counts of Sexual Assault in the Second Degree in violation of Hawai'i Revised Statutes (HRS) § 707-731(1)(a) (Supp.1992), ¹ Defendant-Appellant Barton Adams (Defendant) asserts that the trial court committed three reversible errors. We will only address the questions of whether the trial court erred in (1) denying Defendant's motion for a new trial (the Motion) and (2) refusing to allow Defendant to introduce (a) evidence that the complaining witness (CW) had a sexually transmitted disease, and (b) a videotape recorded about five months after the alleged assault, which showed CW dancing suggestively at a Maui nightclub. ² As discussed below, we conclude that the trial court erred in denying the Motion; however, the trial court correctly rejected the proffered evidence.

I. Background Facts

The alleged offenses took place on March 29, 1990. On that day CW had gone to work as a temporary secretary for Defendant, an osteopath. ³ Although CW and Defendant differ in their versions of the details of the incident, it is quite clear that at the end of the day Defendant began to massage CW's neck and shoulders. Eventually, they both went into an examination room at the rear of Defendant's office. In the examination room, either at Defendant's suggestion or on her own initiative, CW partially undressed, donned an examination gown, and lay prone on the examining table in order to allow Defendant to continue the massage. As Defendant's ministrations continued down CW's torso, he either persuaded her to remove the rest of her clothing or removed the clothing himself, apparently without protest from CW.

Defendant admitted that during the massage, he penetrated CW's vagina with his finger as alleged in Counts I, II, and IV of the indictment. However, he denied penetration with his tongue as alleged in Count III.

Defendant testified that CW was "very warm and very flirtatious" during the day; that as a result he believed that she was receptive to engaging in sexual activity with him; and that during the acts of penetration, CW never protested or resisted him.

CW testified that she did not consent to any of Defendant's actions and had told Defendant to stop. However, CW did admit on cross-examination that she told the police that she was so afraid that she did not say anything or even look to see what Defendant was doing to her. CW also admitted that she told the grand jury that during the time when Defendant was allegedly performing the act charged in Count III, she did not say anything to him.

II. New Trial

The jury returned its verdict on January 30, 1992, and Defendant filed the Motion on February 19, 1992. ⁴ The Motion's salient claim was that Defendant was deprived of his "right to a fair and impartial jury because of prejudicial statements by a juror based on her personal experience and not on evidence in the record[.]" ⁵

A.

In State v. Furutani, 76 Hawai'i 172, 873 P.2d 51 (Sup.1994), the supreme court stated that a motion for a new trial is addressed to the trial court's sound discretion, and its decision will not be disturbed absent a clear abuse of discretion. Abuse of discretion occurs when the trial court clearly exceeds the bounds of reason or disregards rules or principles of law or practice to the substantial detriment of one of the litigants. Id. at 179, 873 P.2d at 58.

A motion for a new trial based on juror misconduct can be based upon (1) failure of one or more jurors to respond truthfully to questions posed during voir dire, or (2) misconduct by one or more jurors during the course of the trial. See id. In either event, the ultimate inquiry is whether the misconduct deprived the defendant of the fundamental right to a trial by twelve impartial jurors. Id. If any member or members of the jury was shown not to be impartial, the trial court's failure to grant a new trial is an abuse of discretion. Id.

When the basis for the motion is juror misconduct during jury deliberations, the first responsibility of the trial court is to determine whether the misconduct is of a nature which could substantially prejudice the defendant's right to a fair trial. Whether it does rise to that level is ordinarily left to the discretion of the trial court. Id. at 180, 873 P.2d at 59 (citing State v. Keliiholokai, 58 Haw. 356, 359, 569 P.2d 891, 895 (1977)). Where the trial court determines that the juror misconduct could substantially prejudice the defendant's right to a fair and impartial jury, a rebuttable presumption of prejudice is raised and the court must investigate the totality of circumstances to determine if the misconduct impacted the jury's impartiality. Furutani, 76 Hawai'i at 181, 873 P.2d at 60 (citing State v. Williamson, 72 Haw. 97, 102, 807...