State v. Rabago
Decision Date | 26 December 2003 |
Docket Number | No. 25378.,25378. |
Citation | 81 P.3d 1151,103 Haw. 236 |
Parties | STATE of Hawai`i, Plaintiff-Appellee, v. Simeon RABAGO, Defendant-Appellant. |
Court | Hawaii Supreme Court |
Simone C. Polak, deputy prosecuting attorney, on the briefs, for the plaintiff-appellee State of Hawai`i.
Edward K. Harada, deputy public defender, on the briefs, for the defendant-appellant Simeon Rabago.
The defendant-appellant Simeon Rabago appeals from the judgment of the second circuit court, the Honorable Shackley F. Raffetto presiding, convicting him of and sentencing him for two counts of continuous sexual assault of a minor under the age of fourteen years, in violation of Hawai`i Revised Statutes (HRS) § 707-733.5 (Supp.2002)1 (Counts I and II). On appeal, Rabago contends: (1) that HRS § 707-733.5 is unconstitutional, inasmuch as the statute (a) violated his right to due process, as guaranteed by the fifth and fourteenth amendments to the United States Constitution, as well as by article I, sections 5 and 14 of the Hawai`i Constitution, and (b) violated his right to a unanimous verdict, as guaranteed by article I, sections 5 and 14 of the Hawai`i Constitution; and (2) that the circuit court erred in failing to give the jury a "specific unanimity instruction," pursuant to this court's decision in State v. Arceo, 84 Hawai`i 1, 928 P.2d 843 (1996). We hold that HRS § 707-733.5(2) violates the rule adopted by this court in Arceo and its progeny. Accordingly, we vacate the circuit court's judgment of conviction and sentence and remand this matter to the circuit court for further proceedings consistent with this opinion. We also strike down HRS § 707-733.5(2) as an unconstitutional violation of a defendant's constitutional right to due process of law.
On May 14, 2001, a Maui Grand Jury returned an indictment against Rabago, charging him with: two counts of continuous sexual assault of a minor under the age of fourteen years, in violation of HRS § 707-733.5 (Counts I and II), see supra note 1, and two counts of sexual assault in the third degree, in violation of HRS § 707-732(1)(b) (1993)2 (Counts III and IV). Rabago's jury trial commenced on June 24, 2002 before Judge Raffetto.
For present purposes, we briefly summarize the relevant facts adduced at trial. Between August 19, 1998 and October 4, 2000, Complainants A, B, and C,3 who were all females under the age of fourteen years, lived in a three-bedroom house in Pukalani, Maui with their mother ("Mother") and Rabago, who was Mother's boyfriend at the time. Complainant C was the daughter of Mother and Rabago.
At the time of trial, Complainant A was twelve years of age. Complainant A testified that Mother, Rabago, and Complainant C shared the large bedroom in the house and that she and her sister, Complainant B, each had their own bedrooms. Complainant A disliked Rabago because she believed that he was mean to Mother. During the period of time in which they lived at the Pukalani home, Complainant A entered Rabago's bedroom on various occasions at his request; when she did so, he would lock the door after she entered the room, and they would be alone.
Rabago would then instruct Complainant A to position herself on the bed; Complainant A would do so, lying on her back, and Rabago would pull her pants and underwear down to her ankles as he kneeled halfway on the bed. Rabago would then place his mouth on Complainant A's vulva,4 stick his tongue out onto her vulva, and make "circles" with his tongue on her vulva. Rabago also touched her vulva with the open palm of his hand, rubbing it "in circles." Complainant A testified that Rabago's actions hurt her and that she did not like what he did. Rabago's touching lasted five minutes or less on each occasion; afterwards, he would instruct her not to tell anyone and would threaten to take Complainant C away if Complainant A disobeyed him. Complainant A also testified that she observed Rabago direct Complainant B into the same bedroom and close the door on multiple occasions; during such occasions, he would instruct Complainant A to remain in the living room.
Complainant A never made any written record of any of the foregoing incidents. She recalled that each of the aforementioned events occurred in the same manner and at the same time of day (i.e., in the afternoon, after school). She also generally remembered wearing a shirt and shorts during the incidents, although she could not recall precisely what she was wearing. Although Complainant A could not remember exactly how many times Rabago had placed his hand on her vulva, she estimated that he had done so less than five times; moreover, despite her initial testimony that she did not recall how many times Rabago had placed his mouth and tongue on her vulva, Complainant A later estimated that he had done so on five or more occasions. Complainant A could not recall in what month or year any of the alleged incidents had occurred, although she did generally understand how to use a calendar and could conceptualize relative dates, such as the days of the week, months of the year, and significant holidays.5 Furthermore, Complainant A could not recall the last time that Rabago had placed his mouth on her vulva, although she was certain that the events had transpired in the Pukalani house.
During Complainant A's testimony, and over defense counsel's objection, the circuit court asked her questions submitted in writing by members of the jury. In response to the jury's inquiry as to the whereabouts of her mother and her "other sister"6 during the occasions when Complainant A was with Rabago in the bedroom, Complainant A stated that Mother had been "somewhere else" and that Complainant C had either been with Mother or with Complainant B in the living room. The circuit court also asked Complainant A, at the jury's request, whether her pants or underwear had been around both of her ankles when Rabago had touched her; Complainant A responded in the affirmative. Lastly, the circuit court instructed Complainant A to respond to the jury's query, "If you knew what your step-dad was doing to [Complainant C] was wrong, why did you let him touch you the same way?" Complainant A conceded that she did not know.
Complainant A testified that she had told Mother about Rabago's acts after Mother had asked her whether Rabago had ever done anything either to Complainant A or Complainant B; Complainant A had not told anyone, including her father ("Father"), about what Rabago had done prior to responding to Mother because she had been afraid that Rabago would take Complainant C away, as he had threatened. Complainant A did not recall any argument between Rabago and Mother on the day she related to Mother what Rabago had done to her; furthermore, Complainant A testified that neither she nor Complainant B had scratched Rabago's car on that day. Complainant A did remember that Mother had picked her up after school and had driven her to the Foodland supermarket to buy some groceries. Complainant A stated that, while in the car at the Foodland parking lot, she, Complainant B, and Mother had discussed what Rabago had done.
At the time of trial, Complainant B was nine years of age. She testified that she currently resided with Father, her stepmother, Complainant A, and her two stepsisters. Complainant B recalled living in a three-bedroom house in Pukalani with Mother, Rabago, Complainant A, and Complainant C. She stated that Rabago would occasionally direct her to enter his bedroom by telling her, "You going to bed." Rabago would shut the door after she had entered, and the two of them would then be alone. Rabago would instruct Complainant B to lie on the bed face-up, which she would do. Rabago would remove her clothes, pulling her pants down to her knees and then spreading her legs apart, touching and massaging her vulva with his hands. He would also touch her vulva with his mouth and tongue. Complainant B stated that Rabago's acts made her feel "sore." When Rabago would finish touching Complainant B, he would direct her to "go out and get [Complainant A] and don't tell anyone." Complainant B testified that she would sometimes see Rabago take Complainant A into the bedroom and close the door, telling Complainant B to "go play outside."
Complainant B stated that Rabago had touched her vulva with his hand "ten or more" times and had touched her vulva with his mouth the "same" number of times. She admitted, however, that, prior to trial on May 11, 2001, she had testified that Rabago had touched her vulva with his hand only "five times" and with his mouth only "five times." Complainant B explained that her testimony regarding the number of times Rabago had touched her with his hand and mouth was only an estimate. Similar to Complainant A, Complainant B possessed an understanding of the concepts of the days of the week, months of the year, and the years 1996 through 2000. Nevertheless, she could not identify any particular time in 1998, 1999, or 2000 when Rabago had touched her vulva with his hand or mouth.
Over defense counsel's objection, the circuit court asked Complainant B several questions that had been submitted in writing by members of the jury.
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