State v. Rulona, 13427

• Decision Date: 09 January 1990
• Docket Number: No. 13427,13427
• Citation: 71 Haw. 127,785 P.2d 615
• Parties: STATE of Hawaii, Plaintiff-Appellee, v. Jovenal RULONA, Defendant-Appellant.
• Court: Hawaii Supreme Court

Page 615

785 P.2d 615

71 Haw. 127

STATE of Hawaii, Plaintiff-Appellee, v. Jovenal RULONA, Defendant-Appellant.

No. 13427.

Supreme Court of Hawai'i.

Jan. 9, 1990.

Syllabus by the Court

1. Under the statutory definition of penetration, an act of cunnilingus is an act of penetration and therefore can be sexual abuse in the first degree.

2. Even assuming that the trial judge had discretion to permit a child witness of tender years to sit on the lap of a sexual abuse counselor while testifying in the trial, that discretion was abused in a case where there was no showing of any necessity for such a procedure.

3. Where the prosecution put in evidence of an alleged prior inconsistent statement made by a prosecution witness, the defense was entitled to put on evidence that such a statement was not made, in testimony by a person who concededly was present at the time the statements were allegedly made.

4. Where there was an alleged conversation, out-of-court, between the prosecutrix, and a defense witness, it was error for the court to allow cross-examination by the prosecutrix of the defense witness on the subject, where the form of questions clearly implied to the jury the prosecutrix' version of what had happened.

Judd R. Scott, Deputy Public Defender, Honolulu, Hawaii, for defendant-appellant.

Alexa D.M. Fujise, Deputy Pros. Attorney, Honolulu, Hawaii, for plaintiff-appellee.

Before LUM, C.J., PADGETT, HAYASHI and WAKATSUKI, JJ., and

Retired Justice NAKAMURA, Assigned by Reason of Vacancy.

PADGETT, Justice.

This is an appeal from a conviction for two counts of sexual assault in first degree in violation of HRS § 707-730(1)(b) and two counts of sexual assault in the third degree in violation of HRS § 707-732(1)(b).

Defendant-Appellant Jovenal Rulona (appellant) has argued that he should not be convicted under Count II of the indictment for first degree sexual assault (HRS § 707-730(1)(b)) because there is no allegation, nor any proof of penetration of the alleged victim's vagina by his tongue. In support of this, appellant points to the fact that first degree sexual assault, against a person under 14 years of age, requires sexual penetration, while third degree sexual assault, of such a person, merely requires sexual contact. However, appellant's argument is not well taken. Sexual penetration is defined, among other things, in HRS § 707-700 as including cunnilingus. Cunnilingus is not defined in the penal code. The word is derived from the Latin word "cunnus" meaning the vulva and the Latin verb "linctus" the act of licking, and thus is defined as the stimulation of the vulva, or clitoris, with the lips or tongue. See Webster's New International Dictionary (3d ed. 1976).

It may seem anomalous that touching the vulva with the penis, without physical penetration, would apparently constitute sexual contact and, hence, in the case of a child under 14, would constitute third degree sexual assault, while touching the same spot with the tongue, without physical penetration, would nevertheless constitute sexual penetration for the purposes of the penal code, and thus be sexual assault in the first degree. Nevertheless, it is the legislature's prerogative to act anomalously, if it wishes. The language of the statute is clear and appellant's point as to Count II is not well taken.

Appellant complains that after voir dire had been completed, but before anything else in the case had happened, his counsel discovered information which might indicate a connection between one of the jurors and the Sexual Abuse Center, whose employees played a large part in the trial. He asked the court to permit him to reopen the voir dire with respect to the particular juror to ascertain the facts. The State commendably did not object thereto. Nevertheless the trial judge refused such reopening.

It is often been said that it is important not only that trials be fair, but that they give the appearance of fairness as well. The trial judge should have exercised his discretion, in the peculiar circumstances of this case, in favor of allowing the reopening of the voir dire, but we do not base our reversal of the judgment below on this ground. Presumably, it will not happen again.

There were, however, three errors committed by the court below, in the course of the trial, which require a reversal and a remand for a new trial.

First, the alleged victim, who was eight years old at the time of the trial, was allowed to give her testimony before the jury sitting on the lap of a sexual abuse counselor.

HRS § 621-28 provides as follows:

Accompaniment of children at judicial proceedings. A child less than fourteen years of age, involved in a judicial proceeding, including a grand jury proceeding, shall have the right to be accompanied by a parent, a victim/witness counselor, or other adult designated by the court. The accompanying person may be placed side by side with the child at the discretion of the presiding judge or court officer; provided that this position does not interfere with the proceedings of the court. The accompanying person shall not communicate in any manner with the child unless directed by the presiding judge or court officer.

Appellant urges us that permitting a child witness to have an accompanying person placed side by side with the child during testimony, as the statute expressly provides, is as far as the trial court could go, and that permitting the child to testify seated on the lap of a counselor, overstepped the statutory permission, and was error.

In this case, however, we do reach the question of whether there might be circumstances in which a court could permit a child witness to testify sitting in the lap of an accompanying person. Even if we assume that the court had the discretion to do so, there is nothing in the minor witness' testimony, either before the court made its preliminary ruling, or after she took the stand before the jury, which shows a compelling necessity for allowing such a prejudicial scenario. On the contrary, the record shows that the child apparently testified before the grand jury without needing to be seated on the lap of a sexual abuse counselor. Her testimony in sum was that she was frightened to be there as a witness, and would feel better if she sat on the sexual abuse counselor's lap. Most witnesses appearing in trial for the first time, even adults, are...