State v. Kassebeer, No. 27660 (Haw. App. 2/29/2008)
| Decision Date | 29 February 2008 |
| Docket Number | No. 27660,27660 |
| Parties | STATE OF HAWAI`I, Plaintiff-Appellee, v. ANTHONY KASSEBEER, JR., Defendant-Appellant. |
| Court | Hawaii Court of Appeals |
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT (CR. NO. 04-1-0688)
Joseph R. Mottl, III, for Defendant-Appellant.
Stephen K. Tsushima, Deputy Prosecuting Attorney, City and County of Honolulu, for Plaintiff-Appellee.
Defendant-Appellant Anthony Kassebeer, (Kassebeer) was found guilty by a jury of first degree sexual assault, in violation of Hawaii Revised Statutes (HRS) § 707-730(1)(a) (Supp. 2007),1 and kidnapping, in violation of HRS § 707-720(1)(e) (1993).2 The jury could not reach a unanimous verdict on the additional charge of third degree sexual assault.
The complaining witness (CW) for all three charges was Kassebeer's wife at the time of the alleged offenses. Kassebeer and the CW had voluntarily separated and had been living apart for about a month. According to the CW, Kassebeer entered her apartment in the early morning on April 10, 2004, and physically assaulted her in an attempt to induce her to admit that she was having an affair. Kassebeer went back to the apartment in the afternoon on that same day, approximately ten hours later, and allegedly committed the charged sexual assaults and kidnapping. Kassebeer did not brandish any weapon during the kidnapping, but in the CW's presence, he alluded to his gun in a phone conversation with a friend. A handgun was later recovered by the police in the apartment.
The Circuit Court of the First Circuit (circuit court),3 sentenced Kassebeer to concurrent terms of imprisonment of twenty years for the first degree sexual assault and ten years for the kidnapping. Kassebeer appeals from the Judgment entered on November 16, 2005.
On appeal, Kassebeer argues that the circuit court erred by: 1) admitting the handgun into evidence; 2) denying his motion in limine to exclude, as a prior bad act, evidence that he physically abused the CW during the early morning on April 10, 2004; 3) denying Kassebeer's motions for mistrial when witnesses referred to Kassebeer's physical abuse of the CW before April 10, 2004; 4) failing to give a specific unanimity instruction for the kidnapping charge; 5) communicating its assumption that an offense had been committed; and 5) preventing effective cross-examination of prosecution witnesses. We affirm.
Kassebeer and the CW had been married for six years and had two children. In mid-March 2004, they agreed to separate, and Kassebeer moved out of the couple's Pearl City apartment and began residing with his sister. After the separation, the couple remained in contact and had consensual sex on at least one occasion about a week before the charged offenses.
At about 10:30 p.m. on April 9, 2004, the CW was driving her truck to pick up her friend, Tabatha Hashimoto-Matautia (Tabatha), who worked at the Hilton Hawaiian Village Kassebeer was in a car with his friends, Andrew Kim (Andrew) and Chris Freitas (Chris). Kassebeer saw the CW's truck and directed Chris, who was driving, to follow the CW. The CW parked in front of the Hilton's lobby, and Kassebeer got out of the car and approached her. The CW refused to open her window to talk to Kassebeer, and when she began to drive away, Kassebeer jumped into the bed of the truck. Kassebeer noticed that the CW had a black eye and a cut lip.
After unsuccessfully seeking the assistance of hotel security guards, the CW stopped the truck and opened her door. Kassebeer questioned the CW about the injuries to her face and accused her of having a boyfriend. Kassebeer stated, "[I]f I can't have [the CW], nobody else can . . . ." In the meantime, Tabatha joined the CW in the truck, and they drove off the Hilton premises. Kassebeer followed the CW in Chris's car and repeatedly contacted the CW through her Nextel phone, which had a walkie-talkie feature, calling her "slut" and other disparaging names. The CW returned to the Hilton parking lot and called the police, but when the police arrived, Kassebeer could not be located.
Kassebeer and Andrew decided to go to the CW's Pearl City apartment to search for evidence that the CW was having an affair. They were still there in the early morning on April 10, 2004, when the CW arrived home. The CW had gone to Zippy's restaurant with Tabatha and left for home at about 2:00 a.m. The CW was talking on her cellular phone with Tabatha when the CW entered her apartment. Kassebeer grabbed the CW from behind as she walked down a hallway. He forced the CW to the ground, hit her head on the tile, took her phone away, hit her on the chin with the phone, and held her down on the ground. Before the phone cut off, Tabatha heard the CW scream, and Tabatha called the police and the CW's parents.
The CW described Kassebeer as "angry and psychotic." Kassebeer spoke to the CW and demanded to know, The CW got off the floor. With Andrew attempting to act as a buffer, Kassebeer confronted the CW with items he believed indicated she was having an affair. Eventually, the police arrived. The CW did not ask that Kassebeer be arrested but only that Kassebeer be required to leave. The CW's father, who had also arrived, took Kassebeer to the father's house.
The CW and Tabatha planned to meet for lunch later that same day (April 10, 2004). The CW called Tabatha about fifteen minutes past noon, and they agreed to meet at the CW's apartment. Tabatha called the CW while Tabatha was on her way to the apartment. The CW told Tabatha that the CW would leave the front door unlocked because the CW had to use the bathroom.
As the CW came out of the bathroom, she encountered Kassebeer. The CW asked Kassebeer to leave and told him that Tabatha was coming. Kassebeer replied, "I'll leave after you give me what I want," and he started taking off his clothes.
The CW told Kassebeer "no." Kassebeer called the CW a "fucking bitch," told her to "shut the fuck up," and repeatedly raised his fists in a threatening manner as if he was going to hit her. Kassebeer told the CW to get on the bed, and he took off her clothes. The CW testified that Kassebeer pushed her down on the bed and raped her by inserting his penis into her vagina. She also testified that Kassebeer fondled her breast. Kassebeer ignored the CW's plea that he stop.
When Kassebeer had finished, the CW heard Tabatha knocking on the door. The door was locked. The CW ran to the door, opened it, and told Tabatha to call the police because Kassebeer had just raped her. Kassebeer appeared behind the CW, slammed the door shut, and locked the top latch. Tabatha called the police on her cellular telephone and reported that the CW had been raped. Tabatha asked the police to "please hurry."
The CW asked Kassebeer to let her leave the apartment, but he refused. The CW testified that she wanted to leave but did not because Kassebeer had just raped her and she assumed "the next step was to kill me." At one point, the CW tried to lock Kassebeer out of the bedroom so she could escape through a sliding door, but he stopped her. Kassebeer attempted to move a dresser to barricade the CW in the room but was unable to move the dresser far enough to block the door.
While Kassebeer and the CW were in the apartment, Kassebeer called Andrew. The CW overheard Kassebeer's side of the conversation. Kassebeer told Andrew that he had found the gun that Andrew had tried to hide from Kassebeer. Andrew had previously dismantled Kassebeer's gun and hidden a piece of it out of concern that Kassebeer was depressed and should not be in possession of a gun. Kassebeer told Andrew that "this is going to be a hostage situation and the only person who can negotiate me out of this is you." Kassebeer also called Tabatha and accused her of calling the police. Kassebeer told Tabatha that he had the CW barricaded in the room and that "[y]ou want to make this a hostage situation, I'll make this a hostage situation . .. ."
The CW estimated that it was about 30 to 60 minutes from the time that Kassebeer slammed the door shut on Tabatha until the police arrived. When the police arrived, they knocked on the front door but no one answered. The police instructed Tabatha to call the apartment and instruct Kassebeer to open the door or the police would knock it down. In response to Tabatha's call, the CW promised Kassebeer that if he let the CW leave the apartment, she would act like nothing happened. They then opened the door.
The CW initially told the police that everything was okay and that the police could leave. However, Officer Barbara Donato noticed that "[the CW's] eyes were watery, like she had just finished crying[,] [h]er voice was shaking, [and] her hands were trembling." Once the CW was separated from Kassebeer, she started crying frantically, grabbed Officer Donato's arms, and begged the officer not to leave her alone. Officer Donato searched the bedroom and found a loaded handgun between the bed mattress and the box spring.
Kassebeer testified that he thought the CW was dating someone else and it bothered him. His suspicions were heightened when he saw the injuries to the CW's face on April 9, 2004, and received conflicting versions from the CW and Tabatha on how the injuries had occurred. Kassebeer admitted that he and Andrew went to the CW's apartment in the early morning on April 10, 2004, to look for evidence that the CW was having an affair. Kassebeer stated that after the CW arrived home that morning, he took the CW to the ground because she began screaming and yelling when she saw him. He denied hitting the CW's head to the floor and indicated that when they struggled over the CW's cell phone, she hit herself on the chin with the phone. Kassebeer testified that he "never meant to cause [the CW] any harm or pain."
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