We hold, that the Circuit Court of the Fifth Circuit (the court) 1 erred by permitting Respondent/ Plaintiff-Appellee State of Hawai'i (Respondent) to introduce evidence of acts allegedly committed by Petitioner/Defendant-Appellant James Mundon (Petitioner) for which a jury had acquitted him in a prior trial. The introduction of such evidence violates the principle of collateral es-toppel embodied in the double jeopardy clause of article I, section 10 of the Hawai'i Constitution. Because of the likelihood of retrial, we also hold that the court (1) did not err in denying Petitioner’s discovery request because any error was harmless, (2) did not improperly limit Petitioner’s cross-examination by sustaining Respondent’s objection to Petitioner’s question regarding whether he “released” the complaining witness (hereafter Complainant) for purposes of the kidnapping offense, (3) erred in allowing Respondent and witnesses to use the term “victim” in their testimony, but that any such error was harmless and (4) erred by using information not provided to Petitioner as a basis for determining Petitioner’s sentences.
For the reasons stated herein, we (1) affirm Petitioner’s convictions for two counts of Assault in the Third Degree, (2) vacate his convictions for Attempted Sexual Assault in the First Degree and Kidnapping, and (3) vacate the court’s sentence on Petitioner’s convictions for the two counts of Assault in the Third Degree. In that light, we affirm in part and vacate in part the Judgment, Guilty Conviction, and Sentence entered by the court on October 13, 2010; affirm in part 2 and vacate in part the June 27, 2012 judgment of the ICA filed pursuant to its April 27, 2012 SDO; and remand to the court for further proceedings consistent with this opinion.
I.
A.
On August 15, 2005, Respondent filed a twenty-eight-count indictment against Petitioner, all stemming from alleged incidents occurring on the evening of February 4,
Petitioner was found guilty on one count of TT1 (count 4), one count of Kidnapping 6 (count 24), one count of Assault in the Third Degree 7 (count 25), one count (count 27) of Attempted Assault in the First Degree, 8 and one count (count 28) of Attempted Sexual Assault in the First Degree (attempted digital penetration) 9 .
B.
On certiorari from the first trial, this court concluded that (1) because, in support of the Attempted Sexual Assault in the First Degree charge (count 28), Respondent offered evidence that Petitioner “stuck his hand in the [C]omplainant’s underwear and touched her outer labia three times[,]” and “[t]he evidence and the reasonable inferences therefrom established that [Petitioner] made three separate attempts to subject the [C]omplainant to an act of sexual penetration[,]” it was plain error for the court not to issue a specific unanimity instruction advising the jury that all twelve of its members must agree on which of the three acts supported count 28,
State v. Mundon,
II.
On remand at Petitioner’s second trial, the charges were renumbered as follows: count 1—Attempted Sexual Assault in the First Degree, HRS §§ 705-500 and 707-730(1)(a) (renumbered from Count 28); count 2—Kid-napping, HRS § 707-720(1)(d) (renumbered from count 24); count 3—Attempted Assault in the Second Degree, HRS §§ 705-500, 707-711 (renumbered from count 27) (attempted bodily injury to Complainant), 11 and count 4—Assault in the Third Degree, HRS § 707-712(1)(a) (renumbered from count 25). In his second trial, Petitioner again represented himself, with different stand-by counsel.
A
Prior to trial, on March 18, 2010, Petitioner filed a request for discovery of, inter alia, “[a]ny written documents supplied to [Complainant by Respondent] via e-mail, facsimile transmission, and U.S. mail secretly used to study, memorize, rehearse, and prepare her material trial testimony between February 2004-February 2007[.]” On March 30, 2010, Petitioner made a second discovery request for the same materials. On April 13, 2010, the court filed an order denying Petitioner’s request on the ground that correspondence between Respondent and Complainant constituted Respondent’s “attorney work product.”
B.
Just prior to opening statement, Respondent, referencing
Odum v. State,
At trial, Respondent called, among others, the following witnesses: Complainant, Christopher Ronon (Ronon), Kauai Police Department (KPD) Officers Clyde Caires (Officer Caires), James Rabasa (Officer Rabasa), Rolland Peahu (Officer Peahu) and Jesse Castro (Officer Castro), Lieutenant Sherwin Perez (Lieutenant Perez), and Nancy Wall (Wall).
1.
Complainant testified thаt she arrived on Kauai from Canada on February 3, 2004. On her second day on the island, she met a man named “Tito” (Felix Guzman) during a bus ride. When she mentioned to Tito that she
While waiting, Complainant saw Petitioner pacing near the water with a flashlight. Complainant asked him what he was doing and for the time. Petitioner told her he was fishing, and that it was 10 p.m. Tito returned and related that the hostel was full. Petitioner mentioned that “he had connections [from] his fire inspection job” and that he could get a hotel room for Complainant at a “hugely discounted rate[.]” Petitioner appeared to make some telephone calls. Complainant saw Tito and Petitioner conversing but was unable to hear what they were saying. Complainant advised Petitioner that she was tired and was “just going to snooze where [she] was sitting[.]” Petitioner offered to allow Complainant to sleep in the cab of his truck. Complainant awoke to find the track moving; Complainant had “no idea” where she was and Tito was not in the truck. When she inquired regarding Tito’s whereabouts, Petitioner informed her that he had given Tito forty dollars and instructed him to go ahead and secure a hotel room.
Complainant and Petitioner eventually ended up at an “open area.” Petitioner told Complainant that the hotel “was in the distance” and that Petitioner was supposed to flash his lights and Tito would come to the track. Petitioner flashed his lights but Tito did not come. Petitioner exited the truck and told Complainant he was going to look for Tito. After a while, Petitioner returned with “no news of seeing him.”
Complainant told Petitioner that she “needed to go pee.” Petitioner “ripped off a piece of towel” for Complаinant “to wipe with after.” Complainant went to use the restroom and returned to the truck, sat in the passenger seat, and tried to fall asleep. Just before she fell asleep, Petitioner told her that they needed to leave. He related that he was going to the other “access part of the hotel” because there may have been some confusion regarding where to meet. Petitioner explained he was frustrated because they had been “waiting too long” and “Tito owed him money.”
Complainant told Petitioner she wanted to return to the area where she had slept the previous night and then fell back asleep. When she awoke, they were headed down a bumpy road. The truck stopped and Complainant observed lights to the right side of the vehicle and “bushy” trees to the left; she also heard the ocean in front of her. Petitioner stated that they were at “the other access point to the hotel,” then left with a flashlight and told Complainant that he was going to look for Tito or a security guard.
Petitioner retened “without any news of either of them.” Petitioner instructed Complainant to roll up her window and lock the doors because there were “wild eats” in the area. He then went to look for Tito or a security guard one more time. This time when Petitioner returned, he informed Complainant that he had instructed a security guard who had seen Tito on the hotel property to direct Tito to the track.
Complainant started to “drift off again.” She awoke shortly after and Petitioner’s hand “had already gone up the bottom of [her] dress” and he was “touching [her] outer labia.” 12 Complainant believed she had given Petitioner the “wrong impression” so she “apologized and wiggled away and said like I’m sorry, I don’t actually like you, I’m really sorry.” Petitioner was “super apologetic and [he] backed off right away and said just like I’m sorry and [] it won’t happen again.” She thought everything “was all cleared up” so she went baсk to sleep, but when she awoke, Petitioner again had his hand “up [her] dress and under the waistband of [her] panties and [was] trying to go further down and touching [sic] the outer labia area.”
She thought Petitioner was confused so she reiterated what she had said earlier, only “more loudly” and “repeated it a couple more times.” Petitioner seemed “shocked” and “backed away” and “apologized profusely[.]” Complainant fell asleep, assuming everything
Complainant asked Petitioner what he wanted her to do and he told her to take off her clothes. When she said “no,” he told her he would “cut” her so she took off most of her clothes but did not take off her dress. When she refused to take off her dress, Petitioner warned her that she did not want to see him “fully angry” because Petitioner did not know what he would do. As a result, Complainant complied.
Petitioner then began to touch and kiss Complainant’s breasts. She stated that his hands were “kind of like all over” and one of his hands again went under the waistband of her underwear and over her outer labia area. She was “wiggling the entire time and trying to get away[.]” She told him that she “was menstruating” but he responded he did not care and continued to “grope” her. Petitioner directed Complainant to “touch his penis” and when she refused, he became “angry” and threatened to tie her up. He reached into his glove compartment and pullеd out some rope and tape.
In an attempt to get Petitioner “to be repulsed[J” Complainant stated she needed to “pee and poo.” Petitioner told her to “go in the truck[,]” but she begged to exit the truck, and he agreed. She got out and “went both pee and poo.” Petitioner handed her a towel after. She then hurried back to the vehicle, grabbed her backpack and “ran as fast as she could with [her] bag on [her] baek[.]” Complainant did not get very far before Petitioner caught up with her and grabbed her by the underwear. Petitioner tackled her from behind and “shoved [her] ... to the ground.” Her chin, knees, and elbows hit the ground.
When Complainant began screaming, Petitioner shoved sand and his fingers down her throat. She tried to get the knife away from Petitioner but her attempts were “futile” because he was “really strong.” She wanted to bite his fingers but Petitioner’s hand “was too_ far down [her] throat[.]” At some point during the struggle, Petitioner punched Complainant in the rib area. Petitioner then started “breathing really heavily”; “like overly labored.” Complainant saw Petitioner suddenly “go pale,” and look “really weird and siek[.]” She told him she would not run away and that she would take off her sandals as proof. Petitioner apparently believed her and backed up a bit. Complainant removed her sandals and started running.
Complainant ran toward the hotel but came to a canal. She crossed through the canal, and ran to the oceanfront units. She went up to one of the units and began banging on the patio window and yelling. A man came to the screen door and she said, “He’s after me and he’s going to hurt me, let me in, I need to get in.” She was given a sheet to wrap around her and some clothing.
The police were called and she informed them that “someone had tried to rape [her]” and provided Petitioner’s first name, and a description of Petitioner and his vehicle. Complainant told Officer Caires that she had left her clothing in Petitioner’s truck аnd that there were fire extinguishers and milk cartons in the back of the truck.
2.
Ronon testified that on February 5, 2004, he was vacationing on Kauai with his wife and two other couples. They were staying in a condominium unit at Kauai Beach Villas. At approximately 3:30 a.m., he and his wife heard pounding on the sliding door and someone yelling, “[H]elp me, help me; let me in; he’s after me; he’s got a knife.” Ronon opened the sliding door and a young woman in underwear, whom Ronon identified as Complainant, ran past him and crouched down on the side of the bed and said, “[H]e’s after me; he tried to rape me; he attacked
3.
Officer Caires testified that at approximately 3:20 a.m. on February 5, 2004, he was dispatched to one of the rooms at the Kauai Beach Villas. He observed a woman wrapped in a white sheet shaking uncontrollably. She told him she was twenty-one year’s old. Having determined that a “major crime” had occurred, he called detectives to take over the investigation.
4.
At approximately 4:00 a.m. on February 5, 2004, Officer Peahu and Officer Castro were dispatched to Petitioner’s residence. They discovered Petitioner’s Ford pickup truck parked on the front lawn. In the truck bed were fire extinguishers and milk cartons. Petitioner was sleeping in the truck and when the officers approached, he woke up and got out of his vehicle. Officer Peahu noticed Petitioner had “sweat on his face,” his shirt was damp, and his shirt and shorts were dirty. Officer Castro observed “cuts and scrapes” on both of Petitioner’s knees, and sand on his feet and “around the open wound” on Petitioner’s knee. Petitioner was placed under arrest. Officer Castro saw a dress and folding knife on the driver’s seat, and white rope and a roll of tape on the floorboard.
Complainant’s backpack and sandals were found in a sandy area near Marine Camp Road, the area where Complainant alleged she was assaulted. Lieutenant Perez testified that a white towel with fecal matter was found near a bush in the area.
5.
The court qualified Wall, a retired registered nurse, as an expert in the field of nursing, and as a Sexual Assault Nurse Examiner (SANE). Wall examined Complainant on February 5, 2004, and observed multiple bruises, lacerations, and abrasions on Complainant’s body. Sand fell from Complainant’s head and pubic hair when she combed through it. Wall indicated that Complainant appeared to be menstruating at the time of the examination.
Complainant had bruising and marks on her neck, consistent with Complainant’s statement that she felt pressure on her neck from a cold, hard, possibly sharp object. Complainant also had a “recent abrasion” on her knee with particles of sand on the abrasion. Wall answered affirmatively when asked whether such an injury was consistent with Complainant’s story that she fell in the sand while attempting to escape. According to Wall, the minor lacerations on Complainant’s elbows were also consistent with Complainant being tackled from behind.
6.
Petitioner did not testify at trial.
C.
Petitioner was found guilty of Attempted Sexual Assault in the First Degree (count 1, renumbered from Count 28); Kidnapping-No voluntary release
13
(count 2, renumbered from count 24), the lesser included offense of Assault in the Third Degree (count 3, renumbered from count 27, Attempted Assault in the Second Degree), and Assault in the Third Degree (count 4, renumbered from count 25). He was sentenced to twenty years of imprisonment in counts 1 and 2 and one year of imprisonment in counts 3 and 4. The twenty-year terms in counts 1 and 2 were ordered to run consecutively, the one-year terms in counts 3 and 4 were ordered to run concurrently with each other and concurrently with the terms in counts 1 and 2. The court ordered a mandatory minimum period of imprisonment of six years and eight months in
D.
Petitioner appealed once again. On appeal to the ICA, Petitioner argued that the court erred by:
(1) improperly limiting discovery; (2) improperly permitting evidence of acts for which [Petitioner] was acquitted in the first trial, without also admitting evidence that [Petitioner] was acquitted of those alleged acts; (3) improperly limiting cross examination of the [Complainant]; (4) improperly allowing [Respondent] to make references to [the] Complainant as “victim” over the objection of the defense; and (5) imposing consecutive twenty year sentences, an award of restitution, and a mandatory minimum term of imprisonment.
Mundon II,
As to the first point, the ICA rejected Petitioner’s argument that the court erred in denying Petitioner’s discovery request because, (1) although Hawai'i Rules of Penal Procedure (HRPP) Rule 16(b)(1)(i) 14 requires the prosecution to disclose to the defendant “‘any relevant written or recorded statements,’ ” assuming some of the material requested constituted “statements,” they would be “statements recorded by the prosecution” and hence not subject to disclosure, id at ⅜2; (2) the material sought by Petitioner would not tend to negate Petitioner’s guilt, id.; and (3) the material requested constituted attorney-work product under HRPP Rule 16(e)(5)(i). Id.
As to the second point, the ICA determined that because “the acts underlying the acquitted charges were intrinsic to a charge for which [Petitioner] was retried, [ ] it was not error to admit evidence of those acts.”
Id.
(citing
Odum,
As to the third point, the ICA concluded that Petitioner was not denied his right to meaningful cross-examination when the court sustained Respondent’s objection to Petitioner’s question, “What was [Petitioner] doing
As to the fourth point, the ICA did not decide whether Respondent’s references to Complainant as the “victim” was error. The ICA held instead that, assuming it was error, the error was harmless beyond a reasonable doubt because (1) there were only a few “victim” references by the deputy prosecutor, and (2) the court’s instructions regarding the presumption of innocence cured any error.
Id.
at *5 (citing
State v. Nomura,
As to the fifth point, the ICA held it was not error for the court to justify the imposition of consecutive twenty-year sentences, in part, on the ground that Petitioner was “ ‘in the same category as [the defendant in another sexual assault case] in terms of the need for consecutive sentencing.’ ” 15 Id. In addition, the ICA pointed out that the court evaluated the factors set forth under HRS § 706-606 (1993). 16
III.
In his Application for Writ of Certiorari, Petitioner raises the same questions raised before the ICA:
1. Did the ICA err in affirming the [court’s] limit on discovery?
2. Did the ICA err in affirming the admission of evidence at retrial, of crimes for which [Petitioner] had been acquitted in the first trial?
3. Did the ICA err in affirming limits of cross-examination of [Respondent’s] witness?
4. Did the ICA err in affirming [Respondent’s] references to [ ] [C]omplainant as “victim?”
5. Did the ICA err in affirming the [court’s] imposition of [a] consecutive sentence upon improper grounds? [ 17 ]
Respondent did not file a Response to the Application.
IV.
Petitioner’s first question relates to his request for documents supplied to Complainant between February 2004 and February 2007, which the court denied on the ground that the material requested constituted attorney work product. Complainant replaced her earlier description of being “groped” in her underwear with a reference to her “outer labia” being touched.
Prior to Petitioner’s second trial, Complainant did not use the term “outer labia.” The statutory definition of “sexual penetration,” for purposes of Sexual Assault in the Third Degree is defined in part as “any intrusion of any part of a person’s body or of
As Respondent noted in its Answering Brief, the prosecution is not required to disclose all information, correspondence, evidence, and other material in its possession. HRPP Rule 16(b)(1)(vii) requires the prosecutor to disclose “any material or information which tends to negate the guilt of the defendant as to the offense charged or would tend to reduce the defendant’s punishment therefor.”
The materials requested by Petitioner constituted “correspondence” between Respondent and Complainant, and “records” (statement made by Complainant to the police) under the rule. HRPP Rule 16(e)(5)(i) protects correspondence and reports only “to the extent that they contain the opinions, theories or conclusions” of the attorney or the attorney’s member or legal staff. Respondent has not alleged that the materials requested by Petitioner contained any of its “opinions, theories or conclusions” relating to the case. Here, the court did not ascertain whether the material requested actually constituted protected work product of Respondent.
Petitioner suggested before the ICA that it may be error for the court to make a determination regarding discovery of material claimed to be privileged without at least conducting an
in camera
review of the documents at issue.
See O’Connell v. Cowan,
As disclosed in oral argument before this court, Petitioner’s concern was only with the use of the term “outer labia.” However, Petitioner did have the opportunity to cross-examine Complainant regarding her use of that term. Petitioner’s cross-examination of Complainant regarding this issue, under the circumstances here, rendered any error harmless. Accordingly, the ICA did not gravely err in affirming the denial of Petitioner’s discovery request.
V.
In connection with Petitioner’s second question, Petitioner maintains that the court’s error violated his rights against double jeopardy under the Fifth Amendment to the United States Constitution and article 1, section 10 of the Hawai'i Constitution, 18 and his rights to due process and equal protection under the Fifth and Fourteenth Amendments to the United States Constitution, and article 1, sections 5 19 and 14 of the Hawai'i Constitution. We decide this question under Article 1, Section 10.
As stated, Respondent indicated prior to trial that it intended to introduce evidence of “[a]ll of the acts that occurred in the incident,” including the acts of which Petitioner was acquitted. Respondent had apparently presented the court with a memorandum of law, referencing Odum, which was attached thereto. This memorandum does not appear to have been filed.
Petitioner, acting pro se, initially noted that in
Odum,
there were five accomplices whereas in the instant ease, Petitioner was the only person involved. Because it had been proven that he “didn’t do” those acts, Petitioner argued it would not “be fair” to introduce those acts in his second trial. For
Next, Petitioner maintained that use of the acts of which he was acquitted would violate his “constitutional rights [against] double jeopardy.” Petitioner specifically stated that in order to convict him of attempted sexual assault in the first degree, Respondent would need to prove that “touching the genital[s]” was “a substantial step.” He urged, however, that it would be a violation of double jeopardy for Respondent to introduce evidence in his second trial that he touched Complainant’s genitals because he was acquitted of such acts in his first trial.
Finally, Petitioner argued that introducing these acts would “raise questions to these new jurors” regarding his first trial. Thus, he maintained that allowing Respondent to “reintroduce evidence that [he] was acquitted for [sic] would ... prejudice [him].”
In response, Respondent related that although the Odum court ruled that Rule 404(b) of the Maryland Rules of Evidence did not apply because these were not other or “prior bad acts,” the evidence was relevant to establishing Petitioner’s state of mind for the retried offenses. Respondent stated, for example, that such acts would “show that [Petitioner] had the intent [to] unlawfully restraint] [Complainant] in order to subject her to a sexual offense.” In addition, Respondent argued that although the evidence was prejudicial, the risk of prejudice did not outweigh its probative value.
The court ruled that Respondent would not be “precluded from admitting evidence of all of the offenses that [Petitioner] faced during his first trial, as they were all part of the same criminal episode of the charges he faces on retrial.” (Emphasis added.) The court added that “any alleged prejudice ... [did] not outweigh the probative value of the evidence[.]” 20 Subsequently, acquitted acts were introduced in connection with the Attempted Sexual Assault in the First Degree and the Kidnapping charges.
VI.
Respondent argued to the ICA that the evidence was properly admitted because (1) the acts “were all part of the same criminal episode” and hence admissible, (2) under HRE Rule 403, the evidence was “highly probative” and although prejudicial, not
“unfairly
” prejudicial, (quoting
Odum,
Respondent did not challenge Petitioner’s alternative argument that the court should have at least instructed the jury that Petitioner had been acquitted of “completed sexual contact[.]” Instead, Respondent argued that the court’s error was harmless beyond a reasonable doubt because “[t]he jury was properly instructed as to the offense of Attempted Sexual Assault in the First Degree, including a specific unanimity instruction, and the jury only needed to find a ‘substantial step’ in furtherance of sexual penetration by strong compulsion; it did not need to find completed sexual contact.”
VII.
A.
It is established that the guarantee against “ ‘[d]ouble jeopardy protects individu-
ais
B.
However, the United States Supreme Court has held that “collateral estoppel” is a principle embodied in the right against double jeopardy, and precludes relitigation of issues already decided, even when double jeopai’dy is not necessarily implicated.
Ashe v. Swenson,
Six weeks later, the defendant was brought to trial for the robbery of another participant in the poker game.
Id.
Although the witnesses were for the most part the same, the testimony was substantially stronger in the second trial.
Id.
at 439-440,
Relying on the doctrine of collateral estop-pel, the Court reversed the defendant’s conviction. The Court explained that collateral estoppel means that “when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.”
22
Id.
at 443,
The Court remarked that at common law and under the early federal statutes, “a single course of criminal conduct was likely to yield but a single offense.”
Id.
at 446 n. 9,
However, in applying the doctrine of collateral estoppel to a general jury verdict of acquittal, courts must be careful not to take a “hyperteehnical and archaic approach,” but should, “with realism and rationality ... examine the record of a prior proceeding, taking into account the pleadings, evidence, charge, and other relevant matter, and conclude
whether a rational jury could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose from consideration
[.] ”
Id.
at 444,
Applying collateral estoppel to the case at hand, the Court reasoned that once a jury had “determined by its verdict that the [defendant] was not one of the robbers, the State could [not]
constitutionally
hale him before a new jury to litigate that issue again.”
Id.
at 445,
C.
1.
In
Dowling v. United States,
Under FRE Rule 404(b) the Government only had to establish that the other acts had occurred by a preponderance of the evidence.
Id.
at 356,
The majority assumed that “Dowling’s acquittal established that there was a reasonable doubt as to whether Dowling was the masked man who entered Vena Henry’s home[.]”
Id.
But, according to the majority, “to introduce evidence on this point at the bank robbery trial, the Government did not have to demonstrate that Dowling was the
The majority based its holding on prior eases that it said supported this proposition. (Citing
United States v. One Assortment of 89 Firearms,
Alternatively, the majority held that even if the lower standard of proof under FRE Rule 404(b) applied in a secоnd proceeding did not avoid the collateral estoppel issue, the evidence would still be admissible.
Id.
at 350,
2.
Justice Brennan, joined by Justice Marshall and Justice Stevens, dissented. Justice Brennan wrote that “[t]o permit a second trial after an acquittal, however mistaken the acquittal may have been, would present an unacceptably high risk that the Government, with its vastly superior resources, might wear down the defendant, so that even though innocent he may be found guilty.”
Id.
at 355,
In addition to protecting against retrial for the same offense, the doctrine of collateral estoppel protects the defendant from having to relitigate any ultimate facts resolved in the defendant’s favor by the prior acquittal.
Id.
at 356,
In Justice Brennan’s view, the majority’s analysis was “inconsistent with [the Court’s] admonition in
Ashe
that an excessively technical approach to collateral estoppel ‘would, of course, simply amount to a rejection of the rule of collateral estoppel in criminal cases, at least in every case where the first judgment was based upon a general verdict of acquittal.’ ”
Id.
at 358,
Justice Brennan also attacked the majority’s use of civil eases to justify its holding “those forfeiture cases involved civil remedial measures rather than criminal punishment.”
Id.
at 359,
VIII.
A.
Ashe
appears to reflect the better reasoned approach and the rationale therein is hereby adopted under the Hawai'i Constitution.
24
Recognizing that the proliferation of statutory offenses allows the prosecution to charge a defendant with multiple counts based on the same incident, the Court adopted the collateral estoppel doctrine to curb potential abuses.
See Ashe,
Yet, under
Dowling,
the prosecution is permitted to introduce evidence that the defendant committed an act for which the defendant was already acquitted, so long as the burden to establish the occurrence of the act is less than beyond a reasonable doubt such as admission of evidence under FRE 404(b). This undermines the legal presumption that a defendant is innocent until proven guilty.
See Dowling,
Additionally, admitting evidence of an acquitted crime compels a defendant (if he or she hopes to prevent the jury from deciding the issue against him) to
again
defend the same conduct for which he or she had already been acquitted. In this regard, the majority’s position in
Dowling
is contrary to
Ashe.
Compare
Dowling,
Further, there is a risk that the jury will convict the defendant because it believes that the fact that the defendant committed the prior act (despite the acquittal) makes it more likely that the defendant committed the charged offense. There is also a risk that the jury will feel that the defendant was guilty of the prior acquitted charge even if it believes the defendant is not guilty of the charged offense, and will convict the defendant in order to punish him for the prior offense. These dangers, which strike at the heart of the protections embodied in the Double Jeopardy Clause are not addressed by the majority in Dowling. Ashe and the dissenters’ view 25 in Dowling are thus more faithful than the majority’s position in Dowl-ing to the principles of the presumption of innocence, the burden of proof beyond a reasonable doubt, and the efficacy of an acquittal.
Also, the majority in
Dowling
does precisely what
Ashe
admonishes should not be done, inasmuch as the majority employs a hyper-technical approach to the doctrine of collateral estoppel. In
Ashe,
the Court had explained that “[i]f a later court is permitted to state that the jury may have disbelieved substantial and uneontradicted evidence of the prosecution on a point the defendant did not contest, the possible multiplicity of prosecutions is staggering.”
26
B.
Banther v. State,
That court noted that the Delaware Constitution protects defendants against double jeopardy and that “[pjrineiples of double jeopardy ... are subsumed by the broader doctrine of collateral estoppel, which ‘means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot be litigated between the same parties in any future law suit.’”
Id.
at 492 (quoting
Marine v. State,
In arguing that Banther acted as an accomplice by aiding the principal in planning the murder, the State implied Banther acted jointly as opposed to unilaterally. Id. The Delaware Supreme Court concluded that “[t]he State’s references to Banther’s planning focused on concerted actions, which although not labeled as a ‘conspiracy,’ nonetheless operated as the functional equivalent of the agreemеnt element that is fundamental to a conspiracy.” Id. But, because Banther had already been acquitted of conspiracy to commit murder, that court concluded, “The earlier jury must have rejected the fact of an agreement between Banther and [the principal.]” Id. at 494. Consequently, Banther held under collateral estoppel principles, that accomplice liability could be established only “on the basis of Banther’s individual, independent and spontaneous aetions-not on the basis of a theory that he and [the principal] had ‘worked together’ on the plan.” Id.
Similarly, in the instant case, Respondent prosecuted both the Attempted Sexual Assault in the First Degree and Kidnapping charges by seeking to establish that Petitioner had committed acts of sexual assault for which he had already been acquitted. Collateral estoppel bars the prosecution from seeking to have the jury decide for the second time whether Petitioner had in fact commit
ted
IX.
In this ease, in order to convict Petitioner of Attempted Sexual Assault in the First Degree (digital penetration), Respondent was required to prove beyond a reasonable doubt that Petitioner had taken a “substantial step” toward digitally penetrating Complainant, and that he exerted “strong compulsion.” Respondent sought to establish that Petitioner had taken a substantial step toward digitally penetrating Complainant in the second trial by proving beyond a reasonable doubt that Petitioner had touched Complainant’s labia. Respondent also apparently argued that the fact that Petitioner “fondled” Complainant’s breasts demonstrated strong compulsion. 31
It must first be determined whether Petitioner’s acquittal in his first trial on counts 1, 2, 3, and 22, Sexual Assault in the Third Degree (hand on genitals), on counts 5, 6, 7, 8 (hand on breast), and on counts 9, 10, 11, 12, 13,14, 15, 16,17, 18, 19, 20, 21 (mouth on breast) amount to a decision by the jury that Petitioner did not in fact touch Cоmplainant’s labia and breasts or put his mouth on her breasts.
See Ashe,
A.
1.
The indictment against Petitioner in his first trial on counts 1, 2, 3, and 22, Sexual Assault in the Third Degree, stated, identically, as follows:
On or about the 5th day of February, 2004, in the County of Kauai, State of Hawai'i, [Petitioner] did knowingly, by strong compulsion, have sexual contactwith [Complainant], by putting his hand on her genitals, thereby committing the offense of Sexual Assault in the Third Degree in violation of Section 707-732(1)(f) of the [HRS],
(Emphasis added.) The indictment on counts 5, 6, 7, 8, 9 and likewise stated identically:
On or about the 5th day of February, 2004, in the County of Kauai, State of Hawai'i, [Petitioner] did knowingly, by strong compulsion, have sexual contact with [Complainant], by putting his hand on her breast, thereby committing the offense of Sexual Assault in the Third Degree in violation of Section 707-732(1)(f) of the [HRS],
(Emphasis added.) The same pertained to counts 10, 11, 12,13, 14, 15, 16, 17,18, 19, 20, and 21:
On or about the 5th day of February, 2004, in the County of Kauai, State of Hawai'i, [Petitioner] did knowingly, by strong compulsion, have sexual contact with [Complainant], by putting his mouth on her breast, thereby committing the offense of Sexual Assault in the Third Degree in violation of Section 707-732(1)(f) of the [HRS],
In order to find Petitioner guilty of these offenses, then, Respondent was required to prove that Petitioner subjected Complainant to sexual contact (1) by placing his hand on her genitals and breasts, and by placing his mouth on her breasts, (2) by strong compulsion, and (3) by doing so knowingly as to the foregoing elements.
See State v. Veikoso,
In light of the number of times Complainant maintained Petitioner had touched her genitals and touched and put his mouth on her breasts, the acquittals could not have been predicated on the jury’s finding that Petitioner had done these acts, but done so unknowingly.
See Mespoulede,
Nor does it appear that the jury determined that Petitioner did in fact touch Complainant’s genitals and breasts and put his mouth on her breasts, but did not do so “by strong compulsion.” To reiterate, “strong compulsion” means
the use of or attempt to use one or more of the following to overcome a person:
(1) A threat, express or implied, that places a person in fear of bodily injury to the individual or another person, or in fear that the person or another person will be kidnapped;
(2) A dangerous instrument; or
(3) Physical force.
HRS § 707-700. The jury convicted Petitioner of Kidnapping in his first trial, which required Respondent to prove that Petitioner “restrained” Complainant, HRS § 707-720(1)(d), which is defined as “restriet[ing] a person’s movement in such a manner as to interfere substantially with the person’s liberty ... [b]y means of force, threat, or deception[,]” HRS 707-700 (1993). Hence, it may be presumed that the jury did conclude Petitioner exercised strong compulsion over Petitioner at some point.
Additionally, as discussed, the jury in the first trial also convicted Petitioner of count 28, Attempted Sexual Assault in the First Degree, in violation of HRS §§ 705-500 and 707-730(1)(a). As related, Petitioner “commits the offense of Sexual Assault in the First Degree ... if he knowingly subjects
The jury verdict is logical and can be reconciled if the jury concluded that Petitioner attempted to sexually assault Complainant (acting with the requisite knowledge and employing strong compulsion as required to convict of that offense) but never completed the acts of touching her genitals and breasts or putting his mouth on her breasts, which were the acquitted acts upon which the offenses were predicated. Thus, based on the indictment and evidence presented in this case, it may be presumed that the jury decided in Petitioner’s first trial that Petitioner did not actually touch Complainant’s genitals, as charged in counts 1,2, 3, and 22, touch her breasts, as charged in counts 5, 6, 7, 8, and 9, or put his mouth on her breasts, as charged in counts 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, and 21.
2.
During the second trial, Respondent nevertheless introduced evidence that Petitioner touched Complainant’s genitals 33 and breasts, and that he put his mouth on her breasts. Respondent argued to the jury that the act of touching Complainant’s genitals was a substantial step necessary to complete the offense of Attempted Sexual Assault in the First Degree. Respondent also apparently contended that all three acts were relevant to establish Petitioner’s state of mind with respect to that offense.
However, the jury decided these issues in the Petitioner’s “favor by reason of the jury’s partial acquittаl on other counts [in the first trial].”
See United States v. Bailin,
Respondent also argues that the acts were relevant to show Petitioner’s intent. Again, applying the rational jury standard established in
Ashe,
the jury in the first trial had already decided that Petitioner did not commit the acts of touching Complainant’s genitals and breasts or of placing his mouth on her breasts.
Ashe
does not differentiate between the use of acts to establish an element of the offense beyond a reasonable doubt and their introduction under a lower standard of proof pursuant to the rules of evidence.
Id.
at 443,
B.
To prove that Petitioner committed Kidnapping, HRS § 707-720(1)(d), Respondent had to establish that Petitioner “intentionally or knowingly restrain[ed Complainant], with the intent to inflict bodily injury upon her or subject her to a sexual offense [.] (Emphasis added.) It appears that in this ease, Respondent attempted to show that Petitioner intended both to inflict bodily injury and to subject Complainant to a sexual offense. Respondent argued this to the jury in closing argument.
Kidnapping. This is important. Did he intentionally restrain [Petitioner] to inflict bodily injury or subject her to a sexual offense. Restrain means to do so or interfere with her liberty by means of force, threat or deception. Again, clearly, he deceived her into locking the doors [of the vehicle], [he] roll[ed] up the windows, grabbed her torso, held a knife to her throat, ordered her to take off her clothes, touched—or attempted to touch her labia, licked her breast, asked her to touch his penis. She ran from his prison. He chased her, ripped her panties, tackled her to the ground. He had the knife. He’s hitting her body. He’s pushing her. She’s trying to get up. He’s shoving sand in her mouth to prevent her from yelling for help until she’s finally able to ran away from his grasp[.]
(Emphasis added).
As is evident, Respondent relied on acts of which Petitioner was acquitted (placing his hand on Complainant’s breasts or genitals, or his mouth on her genitals, or asking her to touch his penis
35
) in order to
As noted, Respondent also argued to the jury that Petitioner had the intent to inflict bodily injury. It is impossible to ascertain whether the jury relied on the intent to commit sexual assault (which was predicated on the acts of which Petitioner was acquitted) or the intent to inflict bodily injury. Therefore, Petitioner’s conviction on the Kidnapping count must be vacated and the case remanded due to the erroneous admission of the sexual assault acts, as the jury may have relied on those acts to convict Petitioner of Kidnapping. Thus, on remand, evidence of the acquitted sex assault acts must be excluded in any retrial. 36
X.
The count charging Attempted Assault in the Second Degree, HRS §§ 705-500 and 707-710 (count 3, renumbered from count 27), alleged Petitioner “intentionally engaged in conduct, which, under the circumstances as he believed them to be, constitute ed a substantial step in a course of conduct intended or known to cause serious bodily injury to [Complainant][.]” The count charging Assault in the Third Degree, HRS § 707-712 (count 4, renumbered from count 25), alleged Petitioner “intentionally, knowingly, or recklessly eause[d] bodily injury to [Complainant.]” In its closing argument, Respondent stated that the attempted assault charge was based on Petitioner’s conduct of “putting sand and fingers down [Complainant’s] throat[.]” Respondent stated that the assault charge was based on the “act of hitting [Complainant’s] back and [] ribs[.]” Respondent did not reference any of the acquitted counts.
Additionally, Petitioner did not argue on appeal to the ICA or in his Application that any of the acts of which he was acquitted were offered in support of the attempted assault and assault counts. Because none of the acquitted counts supported Petitioner’s convictions for the included offense of Assault in the Third Degree (count 3, renumbered from count 27) and Assault in the Third Degree (count 4, renumbered from count 25), and Petitioner makes no other meritorious arguments regarding those counts, convictions as to these counts are affirmed
XL
In light of the likelihood of retrial, we address Petitioner’s third and fourth questions.
Petitioner’s third question concerned his alleged voluntary release of Complainant in connection with the kidnapping charge. Defense counsel asked Complainant on cross-examination, “What was [Petitioner] doing when he agreed to let you go[?]” Respondent objected on the ground that the question misstated the evidence as assuming Petitioner “let [Complainant] go.” The court sustained the objection and directed Petitioner to rephrase the question. Petitioner contends first that he was improperly limited by the court because there was testimony that could be construed as evidence that Petitioner “physically let [Complainant] go” and second that although the court permitted him to rephrase the question, he was “never able to fully explore the issue of voluntary release^]”
As to Petitioner’s first contention, he states that Complainant testified that at some point during the struggle between them, Complainant told Petitioner, “I’ll stay and, and as proof, I’ll remove my sandals.” She testified that Petitioner “believe[d her] and let[] go and back[ed] up a tiny bit.” Complainant related that Petitioner let go of her only after she had attempted to flee, that Petitioner caught up with her, that they began struggling, and that Complainant agreed she would not run away. In that light, the court cannot be said to have abused its discretion in sustaining Respondent’s objection because the question implied as a matter of fact that Petitioner had voluntarily agreed to release Complainant.
See State v. Jackson,
As to Petitioner’s second contention, he claims the court limited his right to cross-examine Complainant. However, the court permitted Petitioner to “rephrаse” his question regarding “let[ting] complainant go.” But instead of asking more questions on the issue, Petitioner asked only, “Was I chasing [you] after you left?” Complainant responded, “After I had taken off my sandals, I did not look behind me to make sure if you were chasing me or not.” Petitioner then asked whether Complainant had “walked up to the hotel area[.]” But when Complainant answered, “No, I ran as fast as I could[,]” Petitioner terminated cross-examination regarding the issue of voluntary release. Consequently, Petitioner’s right to confrontation was not violated.
See State v. Jackson,
XII.
A.
As to Petitioner’s fourth question, during Wall’s testimony, Wall referred to Complainant as the “victim.” When Petitioner objected, on the ground that Wall was “making a eonclusion[,]” the court sustained Petitioner’s objection. During Officer Caires’ testimony, the officer indicated that he returned the items he recovered “to the victim.” Respondent asked, “And the victim was able to identify both of the items as belonging to her?” Petitioner again objected, urging that it had already been agreed that Respondent
Petitioner maintains that Respondent’s references to Complainant as the “victim” were “ ‘incompatible with the presumption of innocence’ ” and violated his right to due process. (Quoting
Jackson v. State,
B.
Petitioner challenges only Respondent’s use of the term. In
Jackson v. State,
the Supreme Court of Delaware stated that “the word ‘victim’ should not be used in a ease where the commission оf a crime is in dispute.”
However, in
Nomura,
the ICA stated that “the term ‘victim’ is conclusive in nature and connotes a predetermination that the person referred to had in fact been wronged.” 79 Hawai‘i at 416,
The instant case does not involve the use of the term “victim” in the jury instructions. However,
Nomura
also found the jury instruction problematic because the trial court must instruct the jury on the law but may not comment upon the evidence.
Id.
at 417,
C.
Contrary to the conclusion of the Supreme Court of Delaware, see
Jackson v. State,
Notwithstanding the court’s error, the use of the term “victim” in the limited circumstances of this case was not prejudicial to Petitioner and, hence, does not itself warrant reversal of his convictions.
See Nomura,
XIII.
We reach Petitioner’s fifth question, because this is an issue that may recur with
This Court presided over \Vinhaca\ and did, in fact, sentence the defendant in that case to consecutive sentencing.... [Petitioner], given this Court’s familiarity with the Vinhaca case and your ease, this Court places you in the same category as Mr. Vinhaca in terms of the need for consecutive sentencing.
(Emphasis added.) During the discussion of the
Vinhaca
ease, Petitioner’s counsel stated he did not know about the case. As recounted, the ICA concluded that the court did not err in comparing Petitioner’s crimes to Vin-haca’s crimes or in imposing an extended sentence, because (HRS) § 706-606(4) allows the court to consider other defendants in similar positions when imposing a sentence, insofar as it directs the court to consider the “need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct.”
Mundon II,
However, it is assumed that the sentencing considerations concerning Vinhaca were an essential part of Vinhaea’s pre-sentence report and were used by the сourt in sentencing Vinhaca.
See
HRS § 706-601(1) (“[T]he court shall order a pre-sentence correctional diagnosis and accord due consideration to a written report of the diagnosis before imposing sentence.”);
see also
HRS § 706-602(1) (requiring the pre-sentence report to set forth,
inter alia,
the circumstances surrounding the crime, the defendant’s criminal history, and the effect of the crime on the victim). That pre-sentence report was also available, presumably, to Respondent. However, such information was not available to Petitioner in his own case, nor should it have been.
See
HRS § 806-73(b)(3)
38
(limiting the distribution of pre-sentence reports);
see also State v. Hussein,
Inasmuch as the court apparently relied on sentencing information in the
Vinhaca
case, none of which was available to Petitioner, the court erred in imposing a consecutive sentence based on the court’s “familiarity with that ease.” The court cannot base its sentence on information not available to the defendant. Thus, under the circumstances, the consideration by the court of a specific individual as a measuring standard for sentencing Petitioner was in error. Moreover, it does not appear that the conduct involved in
The ICA did state that the court considered other matters. 40 However, it cannot be said that the court’s error in relying on Vinhaca was harmless. Here, the court “presided over the [Vinhaca ] trial and did, in fact, sentence the defendant in that case to consecutive sentencing.” To reiterate, when sentencing Petitioner, the court indicated that “given this [c]ourt’s familiarity with the Vinhaca ease and [Petitioner’s] case, this [c]ourt places [Petitioner] in the same category as Mr. Vinhaca in terms of the need for consecutive sentencing.” The court acknowledged that it had not imposed consecutive sentencing on all “other defendants who have come before [the court] with ... similar types of crimes to be sentenced[,]” but that it felt that Petitioner deserved consecutive sentencing based on his similarity to Vinhaca. Inasmuch as we vacate the convictions in counts one and two, the sentences therein are also vacated; although, as noted, we answer Petitioner’s fifth question because the issue may recur. Moreover, with respect to the convictions on counts three and four, which we affirm, there is a reasonable possibility that the error in relying on the Vinhaca case, might have contributed to Petitioner’s sentences in counts three and four. Accordingly, we vacate the sentences in those counts.
XIV.
For the reasons stated, we (1) vacate Petitioner’s convictions as to Count 1, Attempted Sexual Assault in the First Degree, and Count 2, Kidnapping; (2) affirm Petitioner’s convictions as to Count 3, Assault in the Third Degree, and Count 4, Assault in the Third Degree; and (3) vacate Petitioner’s sentence in Counts 3 and 4. We remand the case to the court for a new trial on Counts 1 and 2 and for resentencing on Counts 3 and 4.
Notes
. The Honorable Kathleen Watanabe presided.
. Before the Intermediate Court of Appeals (ICA), Petitioner challenged the court’s order that Petitioner pay restitution for Complainant's backpack because "restitution was not included in his original sentence.”
State v. Mundon,
No. CAAP-10-0000101,
. HRS § 707-732(1)(f) (Supp.2004) states that "[a] person commits the offense of sexual assault in the third degree if ... [t]he person knowingly, by strong compulsion, has sexual contact with another person or causes another person to have sexual contact with the actor.”
. At the time of the offense, HRS § 707-716(1 )(d) (1993) provided that “[a] person commits the offense of terroristic threatening in the first degree if the person commits terroristic threatening ... [wjith use of a dangerous instru-mente.]”
. HRS § 705-500 (1993) provides as follows:
§ 705-500 Criminal Attempt
(1) A person is guilty of an attempt to commit a crime if the person:
(a) Intentionally engages in conduct which would constitute the crime if the attendant circumstances were as the person believes them to be; or
(b) Intentionally engages in conduct which, under the circumstances as the person believes them to be, constitutes a substantial step in a course of conduct intended to culminate in the person's commission of the crime.
(2) When causing a particular result is an element of the crime, a person is guilty of an attempt to commit the crime if, acting with the state of mind required to establish liability with respect to the attendant circumstances specified in the definition of the crime, the person intentionally engages in conduct which is a substantial step in a course of conduct intended or known to cause such a result.
(3)Conduct shall not be considered a substantial step under this section unless it is strongly corroborative of the defendant’s criminal intent.
. HRS § 707—720(1)(d) (1993) provides that "[a] person commits the offense of kidnapping if the person intentionally or knowingly restrains another person with intent to ... [i]nflict bodily injury upon that person or subject that person to a sexual offense[.]”
. HRS § 707-712 (1993) provides as follows:
§ 707-712 Assault in the third degree.
(1) A person commits the offense of assault in the third degree if the person:
(a) Intentionally, knowingly, or recklessly causes bodily injury to another person; or (b) Negligently causes bodily injury to another person with a dangerous instrument. (2) Assault in the third degree is a misdemeanor unless committed in a fight or scuffle entered into by mutual consent, in which case it is a petty misdemeanor.
. HRS § 707-710 (1993) states that “[a] person commits the offense of assault in the first degree if the person intentionally or knowingly causes serious bodily injury to another person.”
. HRS § 707—730(1)(a) (Supp.2004) states: "A person commits the offense of sexual assault in the first degree if ... [tjhe person knowingly subjects another person to an act of sexual penetration by strоng compulsion^]”
. This court stated that because Petitioner was charged with two counts of TTI, the prosecution introduced evidence of two distinct acts supporting those counts, no specific unanimity instruction was given, and the jury convicted on one count and acquitted on the other, there was no way to know which specific act served as the basis for the jury’s conviction on count 4.
Mundon I,
. In Petitioner’s first trial he was charged with Attempted Assault in the First Degree (serious bodily injury). On retrial, Petitioner was tried instead of Attempted Assault in the Second Degree (substantial bodily injury).
. Webster's dictionary defines “outer labia” or "labia majora" as "the outer fatty folds of the vulva bounding the vestibule." Merriam Webster’s Collegiate Dictionary 649 (10th ed.1993).
. Kidnapping is "a class A felony” except "[i]n a prosecution for kidnapping, it is a defense which reduces the offense to a class B felony that the defendant voluntarily released the victim, alive and not suffering from serious or substantial bodily injury, in a safe place prior to trial.” HRS § 707-720(2) and (3) (emphasis added).
. HRPP Rule 16(b) provides as follows:
b) Disclosure by the Prosecution.
(1) Disclosure of Matters Within Prosecution’s Possession. The prosecutor shall disclose to the defendant or the defendant’s attorney the following material and information within the prosecutor’s possession or control:
(i) the names and last known addresses of persons whom the prosecutor intends to call as witnesses in the presentation of the evidence in chief, together with any relevant written or recorded statements, provided that statements recorded by the prosecutor shall not be subject to disclosure;
(ii) any written or recorded statements and the substance of any oral statements made by the defendant, or made by a co-defendant if intended tо be used in a joint trial, together with the names and last known addresses of persons who witnessed the making of such statements;
(iii) any reports or statements of experts, which were made in connection with the particular case or which the prosecutor intends to introduce, or which are material to the preparation of the defense and are specifically designated in writing by defense counsel, including results of physical or mental examinations and of scientific tests, ’ experiments, or comparisons;
(iv) any books, papers, documents, photographs, or tangible objects which the prosecutor intends to introduce, or which were obtained from or which belong to the defendant, or which are material to the preparation of the defense and are specifically designated in writing by defense counsel;
(v) a copy of any Hawai'i criminal record of the defendant and, if so ordered by the court, a copy of any criminal record of the defendant outside the State of Hawai'i;
(vi) whether there has been any electronic surveillance (including wiretapping) of conversations to which the defendant was a party or occurring on the defendant’s premises; and
(vii) any material or information which tends to negate the guilt of the defendant as to the offense charged or would tend to reduce the defendant’s punishment therefor.
. As noted, Petitioner also challenged the court's order that Petitioner pay restitution for Complainant’s backpack because "restitution was not included in his original sentence."
Mundon II,
. HRS § 706-606 provides as follows:
§ 706-606 Factors to be considered in imposing a sentence. The court, in determining the particular sentence to be imposed, shall consider:
(1) The nature and circumstances of the offense and the history and characteristics of the defendant;
(2) The need for the sentence imposed:
(a)To reflect the seriousness of the offense, to promote respect for law, and to provide just punishment for the offense;
(b) To afford adequate deterrence to criminal conduct;
(c) To protect the public from further crimes of the defendant; and
(d) To provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner;
(3) The kinds of sentences available; and
(4) The need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct.
.Petitioner raised the same arguments on appeal to the ICA.
See Mundon II,
. Article 1, section 10 of the Hawai'i Constitution states, in relevant part, that "nor shall any person be subject for the same offense to be twice put in jeopardy.” Haw. Const. Art. 1, § 10.
. Article I, section 5 of the Hawai'i Constitution provides that "[n]o person shall be deprived of life, liberty or property without due process of law, nor be denied the equal protection of the laws, nor be denied the enjoyment of the person's civil rights or be discriminated against in the exercise thereof because of race, religion, sex or ancestry.” Article I, section 14 of the Hawai'i Constitution provides in part that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to be informed of the nature and cause of the accusation[.j”
. Although the court referenced prejudice and probative value, the court did not specifically cite HRE Rule 403.
. Respondent asserted that Petitioner’s acquittal in his first trial of all Sexual Assault in the Third Degree charges meant only that the jury could not find beyond a reasonable doubt that Petitioner completed the alleged sexual contact but it does not mean he did not commit a substantial step toward sexual penetration by reaching "under the waistband of [Complainant’s] panties, to her vaginal area.”
. Where, as in this case, a defendant is retried, collateral estoppel does not squarely apply "since retrial cannot be 'collateral’ if it is a 'continuation' оf the first trial.”
U.S. v. Bailin,
. The Court was referring to the fact that under FRE 404(b) evidence of the prior acquitted crime (Henry’s testimony) would be admissible "if the jury can reasonably conclude that the act occurred and that the defendant was the actor,” and "the Government did not have to demonstrate that Dowling was the man who entered the home beyond a reasonable doubt.”
Dowling,
. This court, “[a]s the ultimate judicial tribunal with final, unreviewable authority to interpret and enforce the Hawai'i Constitution, [is] free to give broader protection than that given by the federal constitution.”
State v. Detroy,
It must be noted that "state courts are absolutely free to interpret state constitutional provisions to accord greater protection to individual rights than do similar provisions of the United States Constitution.”
Arizona v. Evans,
. In the past, this court has not hesitated to adopt the dissents in U.S. Supreme Court cases when it was believed the dissent was better reasoned than the majority opinion. See, e.g.,
State v. Cuntapay,
. The principles of Ashe may have been codified by our legislature in HRS § 701-111(2) (Supp. 2004), which provides as follows:
§ 701-111 When Prosecution is barred by former prosecution for a different offense
Although a prosecution is for a violation of a different statutory provision or is based on different facts, it is barred by a former prosecution under any of the following circumstances:
(2) The former prosecution was terminated by an acquittal or by a final order or judgment for the defendant which has not been set aside, reversed, or vacated and which acquittal, final order, or judgment necessari ly required a determination inconsistent with a fact which must be established for conviction of the second offense.
Our statute is modeled after the Model Penal Code. HRS § 701-111 was not raised or argued by either party. Assuming its application, HRS § 701-111 reiterates, but does not replace, the constitutional rule.
.The term "determined” refers to the court's use of that word in preceding text, that "Collateral Estoppel” means simply that " 'when an issue of ultimate fact has once been
determined
by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.’ ”
Dowling,
. As the double jeopardy clause applies only to criminal prosecutions, the collateral estoppel rule adopted herein does not affect the standard for collateral estoppel in civil cases.
. Banther noted that the doctrine of collateral estoppel is codified in a Delaware statute. That statute is worded identically to HRS § 701-111(2).
. Respondent, the court and the ICA incorrectly relied on
Odum.
Odum was charged with, and tried for, his involvement with four others in the armed robbery, carjacking, kidnаpping, and murder of two individuals.
The Maryland Supreme Court, relying on Dowling, Id. at 241, held that evidence of the acquitted counts could be admitted in the second trial for a purpose that would not require the State to prove those acts beyond a reasonable doubt. Similarly, here, for example, Respondent argued that the evidence was relevant to proving Petitioner’s requisite intent for the attempted sexual assault and kidnapping offenses. But, in admitting evidence of such acts based upon a lower standard of proof than beyond a reasonable doubt, Odum followed Dowling. As discussed supra, the precepts in Ashe, as opposed to Dowling, should govern.
. Specifically as to the "substantial step” element for count 1, Respondent identified Petitioner’s touching of Complainant's labia as the "substantial step” Petitioner took toward penetration. In closing argument during the second trial, the prosecution argued:
Did [Petitioner] take a substantial step in causing sexual penetration by strong compulsion? Strong compulsion [sic] is any intrusion of any part of a person’s body into the genital opening. We heard how close the labia was. And that after he had held the knife to her, he fondled her breast. But the sexual assault here is when he put his hand under her underwear and he was on top of her labia and he was going to digitally penetrate her.
(Emphasis added).
. Assuming
arguendo,
any ambiguity about the presence of strong compulsion in connection with Petitioner’s alleged acts of the touching of Complainant’s genitals, this would seemingly apply "realism and rationality,”
Ashe,
. In its case-in-chief, Respondent adduced testimony from Complainant regarding four specific instances in which Petitioner touched what Complainant specifically referred to as her "outer labia." Complainant stated that she had fallen asleep and when she awoke Petitioner’s hand "had already gone up the bottom of [her] dress” and he was "touching [her] outer labia.” She indicated that she fell back asleep and awoke once again with Petitioner’s hand "up [her] dress and under the waistband of [her] panties and trying to go further down and touching the outer labia area.” She testified that she went back asleep, believing everything was clear to Petitioner, but Petitioner again touched her "outer labial.]” Complainant said he told her to get undressed and again placed his hand "under the waistband of her underwear and over her outer labia area.”
Respondent asked Complainant, "When you mention the outer labia, that is the part that’s on the outside or your vaginal area?” Complainant answered affirmatively. Respondent then asked, “[so you] mention he started touching and kissing your breasts and then he groped and his hand was under your waistband, over the outer labia, close to your vaginal area?” Complainant again answered in the affirmative. When Respondent asked Complainant to explained what she meant by grope, Complainant explained, "Going under the waistband of my panties.... And touching the outer labia.”
. In
State v. Lemalu,
. The same reasons, discussed supra, that demonstrate that a rational jury must have found that Petitioner did not touch Complainant’s breasts or genitals also demonstrate that the only basis on which a rational jury could have acquitted Petitioner on the charge of Attempted Sexual Assault in the Third Degree (Complainant's hand on Petitioner’s penis) was that there was a failure to prove that Petitioner ordered Complainant to touch his penis. The only evidence presented to support this charge was Complainant’s testimony that Petitioner told her to touch his penis. As discussed supra, the jury’s other findings in the first trial preclude a determination that Complainant was not subject to "strong compulsion.” Moreover, under the circumstances of this case, the demand itself would constitute a substantial step in the offense of Attempted Sexual Assault in the Third Degree. Because the "substantial step” required to prove Attempted Sexual Assault in the Third Degree would have been Petitioner's demand, and the demand itself is evidence of Petitioner’s intent, a rational jury could not have acquitted Petitioner unless it found that the prosecution failed to prove beyond a reasonable doubt that the demand was made.
. Petitioner also argues that Respondent's use of the acts of which Petitioner was acquitted violated his right to due process. As noted by Justice Brennan, according double jeopardy significance to an acquittal "reflects both an institutional interest in preserving the finality of judgments and a strong public interest in protecting individuals against governmental overreaching.”
Dowling,
That court has since reaffirmed its holding in
Perkins. See Burr v. State,
. In his Application, Petitioner argues in the alternative that, if evidence of acquitted acts was admissible, the jury must be informed that he
had been acquitted of those acts. To dispel the notion that this would be an adequate remedy, it is noted that when acquitted acts are admitted for evidentiary purposes, there is a greater possibility the jury may conclude the defendant committed those acts.
Dowling,
. HRS § 806-73 provides in relevant part as follows:
§ 806-73 Duties and Powers of Probation Officers, Adult Probation Records
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(b) All adult probation records shall be confidential and shall not be deemed to be public records. As used in this section, the term "records” includes but is not limited to all records made by any adult probation officer in the course of performing the probation officer's official duties. The records, or the content of the records, shall be divulged only as follows:
(3) A copy of a presentence report or investigative report shall be provided only to:
(A) The persons or entities named in section 706-604;
(B) The Hawai'i paroling authority;
(C) Any psychiatrist, psychologist, or other treatment practitioner who is treating the defendant pursuant to a court order or parole order for that treatment;
(D) The intake service centers;
(E) In accordance with applicable law, persons or entities doing research; and
(F) Any Hawai'i state adult probation officer or adult probation officer of another state or federal jurisdiction who:
(i) Is engaged in the supervision of a defendant or offender convicted and sentenced in the courts of Hawai'i; or
(ii) Is engaged in the preparation of a report for a court regarding a defendant or offender convicted and sentenced in the courts of Hawai'i.
(Emphases added.)
. As Petitioner observes, in Vinhaca, there were "more victims [two], who were younger [minors] and more closely related to [defendant] [biological daughters].” Vinhaca's offenses "were greater in number, more intrusive and occurred over a longer period of time.” Petitioner argues that "[t]he only apparent similarities are conviction for sex offense[s] and [the] Sentencing Judge.”
. The ICA noted that the court reviewed
the overall facts of the kidnapping/sexual assault incident; Petitioner’s history of criminality, including the fact that he committed the subject offenses while still on probation for an assault conviction; that previous rehabilitation efforts have not been effective; that Petitioner has not taken responsibility for his failure while on probation; that Petitioner preyed on Complainant's vulnerability; and Petitioner’s attempts to minimize the fact that he merely subjected his wife, as opposed to someone in the community at large, to acts of abuse.
Mundon II, 2012 WL 1473433, at *5.