State v. Okihara, CAAP-19-0000117

Defendant Vance Okihara was convicted after a jury trial in Family Court (First Circuit) of abuse of a family or household member (HRS § 709‑906(1)) based on an incident on February 23, 2018.
Only the complaining witness (CW) and Okihara were present during the alleged incident; CW testified at trial, Okihara did not.
During closing and rebuttal, the deputy prosecuting attorney repeatedly highlighted that the CW's testimony was uncontradicted and noted there was no witness telling a different story, and at one point reminded jurors the defendant did not have to testify.
Okihara did not object at trial and raised on appeal five prosecutorial‑misconduct claims: (1) prosecutor’s opinion on CW credibility; (2) introduction of facts not in evidence; (3) comments calling attention to defendant’s failure to testify; (4) burden‑shifting to defense; and (5) misstating the reasonable‑doubt standard.
The Intermediate Court of Appeals found the prosecutor’s repeated references to uncontradicted testimony improperly called attention to Okihara’s failure to testify, constituted plain error affecting substantial rights, vacated the judgment, and remanded; the court did not reach the other claims.

Issue	Plaintiff's Argument (State)	Defendant's Argument (Okihara)	Held
Whether prosecutor improperly commented on defendant's failure to testify	Comments noting the CW's testimony was uncontradicted were permissible—prosecution may point to lack of contradictory evidence	Repeated references to uncontradicted testimony (and remark noting defendant "doesn't have to testify") necessarily called attention to and commented on his silence	Held improper: statements indirectly/repeatedly referenced and would naturally be taken as comment on failure to testify; plain error; conviction vacated and remanded
Whether prosecutor expressed personal opinion on CW credibility	Argued credibility argument was permissible advocacy	Argued DPA improperly vouched for CW's credibility	Not reached (disposition turned on failure‑to‑testify error)
Whether prosecutor introduced facts not in evidence in closing	Argued closing stayed within evidence and jury instructions	Argued DPA advanced facts not in evidence	Not reached
Whether prosecutor shifted burden or misstated reasonable‑doubt standard	Argued burden explanation was proper	Argued DPA shifted burden to defense or misstated law	Not reached

State v. Austin, [citation="143 Hawai'i 18, 422 P.3d 18"] (discusses plain‑error review and two‑step analysis for unpreserved prosecutorial misconduct)
State v. Wakisaka, [citation="102 Hawai'i 504, 78 P.3d 317"] (prosecution may not comment on defendant's failure to testify; test whether remark would naturally be taken as such a comment)
State v. Padilla, 57 Haw. 150, 552 P.2d 357 (permissible to note lack of contradictory evidence unless it necessarily directs attention to defendant's silence)
State v. Clark, [citation="83 Hawai'i 289, 926 P.2d 194"] (framework for evaluating prosecutorial misconduct)
State v. Rogan, [citation="91 Hawai'i 405, 984 P.2d 1231"] (harmless‑error standard: whether error might have contributed to conviction)
State v. Sawyer, [citation="88 Hawai'i 325, 966 P.2d 637"] (factors for reviewing prosecutorial misconduct under harmless‑beyond‑a‑reasonable‑doubt standard)
State v. Marsh, 68 Haw. 659, 728 P.2d 1301 (prosecutorial remarks likely to influence jury where credibility is central)