State v. Rogan
| Citation | 984 P.2d 1231,91 Haw. 405 |
| Decision Date | 05 October 1999 |
| Docket Number | No. 21908.,21908. |
| Parties | STATE of Hawai`i, Plaintiff-Appellee, v. Jerome ROGAN, also known as Davonte, Defendant-Appellant. |
| Court | Supreme Court of Hawai'i |
Robert T. Nakatsuji, Deputy Public Defender, on the briefs, for defendant-appellant.
James M. Anderson, Deputy Prosecuting Attorney, on the briefs, for plaintiff-appellee.
Sandy S. Ma, on the briefs, for Amicus Curiae American Civil Liberties Union of Hawai`i Foundation.
Defendant-appellant Jerome Rogan appeals from the circuit court's judgment, guilty conviction and sentence, and notice of entry filed on August 26, 1998. A jury found Rogan guilty of four counts of sexual assault in the third degree, in violation of Hawai`i Revised Statutes (HRS) § 707-732(1)(b) (1993).1 On appeal, Rogan contends that: (1) the circuit court erred in failing to grant his motion for mistrial based on prosecutorial misconduct; and (2) HRS ch. 846E violates various protections afforded by the United States and Hawai`i Constitutions. For the reasons discussed below, we agree with Rogan's first point of error and further hold that reprosecution of Rogan is barred by the double jeopardy clause of article I, section 10 of the Hawai`i Constitution. Accordingly, we reverse Rogan's conviction.
On May 15, 1997, Rogan was charged with three counts of sexual assault in the first degree (Counts I, II, and IV), in violation of Hawai`i Revised Statutes (HRS) § 707-730(1)(b) (1993),2 and five counts of sexual assault in the third degree (Counts V to IX).3
At trial, the principal witnesses were the Complainant and Rogan. The Complainant, who was twelve years old at the time of the alleged offenses, testified that Rogan had been making telephone calls to her house. Although she had never met Rogan, the Complainant started to talk to Rogan over the phone. During the course of one of their conversations, Rogan asked the Complainant if he could go to her house. After the Complainant agreed, Rogan told the Complainant to call him when her mother left the house, and he gave her his pager number. On September 13, 1995, after the Complainant's mother left the house, the Complainant summoned Rogan to her house by calling Rogan's pager.
The Complainant further testified that when Rogan arrived, she allowed Rogan to enter her home. At that time, the Complainant was wearing a one-piece bathing suit, a tank top, and a pair of shorts. After talking for a while, Rogan and the Complainant went into the Complainant's sister's bedroom to listen to music. According to the Complainant, Rogan told her that he had a belly button ring, but when he took off his shirt, he did not have one.
Thereafter, the Complainant and Rogan turned on some music and started dancing. According to the Complainant, Rogan placed his hand on her buttocks and squeezed as they were dancing. After they finished dancing, Rogan put the Complainant on the bed and touched the Complainant's breast with his hand, body, and mouth. The Complainant also stated that he touched her vaginal area with his hand and tried to put his penis and his finger "into it." The Complainant further stated that he turned her over and started either to lick or insert his finger into her anus. The Complainant explained that Rogan had removed her shorts, but she was still wearing her bathing suit. The Complainant further explained that Rogan moved her bathing suit aside.
The Complainant also testified that Rogan put her hand on his penis. She stated that she told him she was not going to have sex with him and that, at one point, he said "Come on, baby." The Complainant stated that he stopped touching her when her mother entered the room. Immediately thereafter, Rogan put on his clothes and pushed her mother as he ran out the door.
On cross-examination, the Complainant admitted that one of the rules at her house was that she could not have visitors to the house while she was alone. The Complainant stated that, against her parents' wishes and the house rules, she summoned Rogan, told him the address, gave him directions to the house, and let him in. She also stated that someone had been calling her house for two or three months asking for someone named Monica, but her parents hung up on these calls. Two nights before the incident, however, the Complainant received a call from a person asking for Monica and decided to talk to that person. At that time, the Complainant's mother instructed the Complainant to terminate the call, but she did not do so until her mother reached over and hung up the phone for her.
On September 13, 1995, the night of the incident, the Complainant received another phone call from a person asking for Monica and thereafter proceeded to have a full conversation with that person. The Complainant told him that her mother was not going to be home. When Rogan asked to see the Complainant, the Complainant agreed. The Complainant stated that he told her he was in the military, was twenty-one years old, was stationed at Fort Shafter, was from Mississippi, and was black.
The Complainant then stated that she talked to a friend named Shawn on the phone while Rogan was with her and that Rogan even spoke to Shawn. The Complainant also said that her friend Jeanie called while Rogan was there, that Jeanie knew she had a male friend over, and that she did not tell Jeanie she was in any kind of trouble.
The Complainant further admitted that she gave Rogan a "hickey" and that it was not in response to a request for a hickey. The Complainant stated that, throughout the incident, she did not scream for help and that Rogan never threatened to hurt her, her family, or her friends.
The Complainant also testified that her mother was upset by the incident and that her stepfather was very angry. The Complainant admitted that her parents are "kind of strict" and that she knew her parents would be "disappointed" in her and her behavior. The Complainant stated that her parents wanted to see Rogan convicted, but that she did not want to testify. The Complainant also admitted that although she stated she did not want to testify, her parents told her that Rogan's conviction depended on her testimony. The Complainant denied telling Rogan she was seventeen years old or that she was a senior in high school.
Thereafter, Rogan testified on his own behalf. Rogan stated that he was a soldier in the United States Army and that he had arrived in Hawai`i on August 23, 1995—only two or three weeks before the incident on September 13, 1995. At the time of the incident, Rogan was twenty-two years old and was living at Fort Shafter. On the evening of September 13, 1995, Rogan was in a room occupied by a fellow soldier, Ethan Joe. When Joe received a page, Joe asked Rogan to call the number on the pager and to tell the female who answered that he would pick her up later. The female was supposedly named Monica.
When Rogan called the number as a favor to Joe, the female answering the telephone informed him that there was no one named Monica there but asked where he was from and began a casual conversation with him. During the course of the conversation, Rogan told her his age and that he was in the military. The Complainant then told him that she was seventeen years old, was a singer, was going to go to Honolulu Community College, and was going to take a year off to relax. Thereafter, the Complainant told Rogan that her parents would be gone for part of the evening and that it was okay if he wanted to go to her house. The Complainant said she would call him back and let him know the time to come over.
Later that night, the Complainant called Rogan's pager. When Rogan returned the Complainant's page, the Complainant gave him a specific time he could meet her at her house. Rogan stated that he did not find it unusual that the Complainant was going to let him meet her at her house only when her parents were gone. Rogan explained that the parents of the female he previously dated objected because he was African-American.
When Rogan arrived at the Complainant's house, the Complainant invited him in. After talking and watching television for a few minutes, the Complainant suggested that they go into the bedroom. While in the bedroom, Rogan asked the Complainant to dance. While they were dancing, the Complainant started kissing his neck. After Rogan picked her up and placed her on the bed, the Complainant pulled Rogan's shirt over his head. The Complainant continued to kiss Rogan's neck. Rogan then said, "Come on, you want to do it?" The Complainant responded, "No, I'm not having sex with you." Rogan thought the Complainant was not serious because she was laughing and continued to kiss his neck.
Rogan removed the Complainant's shorts, but did not remove the Complainant's bathing suit. Meanwhile, the Complainant continued to kiss Rogan and gave Rogan two or three hickeys on his neck. Because Rogan thought the Complainant wanted to have sex with him, he pulled his pants down, took out his penis and asked if he could "put it in." In response, the Complainant said, "No, I'm not going to have sex with you," and laughed. Rogan again said, "Come on, let me put it in." The Complainant then shoved Rogan back and said, "Pull your damn pants up, I told you we're not going to have sex," and laughed. Rogan then pulled his pants up, and the Complainant put her shorts back on.
Rogan testified that he did not touch the Complainant in the vaginal area with his hand, did not put his finger in her hymenal orifice, and did not insert a finger into her vagina. Rogan stated that he did not penetrate the Complainant's anus with his finger, penis, or tongue. Rogan also stated that he did not penetrate the Complainant's vagina with his penis or finger. Rogan also testified that the Complainant looked like she was seventeen years old at the time of the incident and that the...
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