NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER
APPEAL FROM THE CIRCUIT COURT OF THE THIRD CIRCUIT (CR. NO. 11-1-277K)
Richard D. Gronna for Defendant-Appellant.
Jason R. Kwiat Deputy Prosecuting Attorney County of Hawai'i.
Nakamura, Chief Judge, and Leonard and Ginoza, JJ.
Plaintiff-Appellant State of Hawai'i (State) indicted Defendant-Appellant David Kaawa, IV (Kaawa), on two counts of sexual assault. Count 1 charged Kaawa with Continuous Sexual Assault of a Minor Under the Age of Fourteen Years and alleged that during a three-year period, as part of a continuing course of conduct, Kaawa engaged in three or more acts of sexual penetration or sexual contact with the complaining witness, who was under the age of fourteen. Count 2 charged Kaawa with Sexual Assault in the First Degree and alleged that Kaawa knowingly engaged in sexual penetration with the complaining witness, who was between fourteen and sixteen years old. The complaining witness in both counts (Minor) is the daughter of Kaawa's former girlfriend, and Minor viewed Kaawa as her step-father. At the time of the alleged sexual assaults, Minor was being raised by Kaawa, and Minor and her siblings resided with Kaawa in the same home.
After a jury trial, Kaawa was found guilty as charged on both counts. The Circuit Court of the Third Circuit (Circuit Court) sentenced Kaawa to consecutive twenty-year terms of incarceration on Counts 1 and 2. The Circuit Court entered its "Judgment of Conviction and Sentence" (Judgment) on June 2 9, 2012.
On appeal, Kaawa contends that: (1) the Circuit Court improperly allowed evidence of Kaawa's physical abuse of Minor and her siblings and allegations of the sexual abuse of Kaawa's adopted sister by one of Kaawa's brothers, pursuant to Hawai'i Rules of Evidence (HRE) Rule 404(b) (Supp. 2013); (2) the Circuit Court's limiting instruction on the HRE Rule 404(b) evidence was inadequate to cure the taint of the "other bad acts" evidence; and (3) there was insufficient evidence to support Kaawa's convictions. As explained below, we affirm the Circuit Court's Judgment.
Minor's mother (Mother) had been in a long-term relationship with Kaawa. Mother was the biological mother of Minor and her four brothers and one sister. Kaawa was not the biological father of Minor and her two oldest brothers. Kaawa and Mother were the biological parents of Minor's two youngest brothers and her sister. Kaawa, Mother, Minor, and Minor's two oldest brothers began living together when Minor was about four or five years old. The family grew to include Kaawa, Mother, Minor, and Minor's five siblings, who all resided together.
In May 2006, when Minor was twelve years old, Mother suddenly moved away, leaving all her children with Kaawa. Minor testified at trial that after Mother left, Minor slid into depression because she "didn't have a mom anymore." Kaawa told Minor that Mother left because "she didn't love [the children] anymore" and that Mother was not coming back. Minor believed Kaawa. Over the subsequent years, Kaawa also told Minor that Mother did not want the children, did not want to talk to the children, and did not want to have anything to do with them.
According to Minor, about a month after Mother left, Kaawa began sexually abusing Minor. Kaawa came into Minor's room late one evening, while Minor's five-year-old sister lay asleep on the bed. Kaawa was crying and said he missed Mother. Kaawa asked Minor for a hug. He then asked Minor to put her hand on his penis. When Minor did not comply, Kaawa forced Minor to place her hand on his penis and then to masturbate him. When Kaawa was done, he apologized to Minor. However, he did not stop sexually abusing Minor.
The sexual abuse progressed to Kaawa requiring Minor to regularly engage in sexual intercourse with him and to perform oral sex on him. Kaawa's sexual abuse of Minor continued unabated, and he sexually abused her for several years. Kaawa told Minor that if she reported the sexual abuse to anyone, he "could go to jail" and then all the children would be separated. Minor explained that she refrained from reporting the sexual abuse because she was scared of Kaawa and his family. Minor also did not want her siblings to be separated and did not want Kaawa to go to jail.
Prior to trial, the State filed several notices of intent to use evidence pursuant to HRE Rule 404 (b) . These included a notice of its intent to use "[e]vidence that [Kaawa] was violent toward [Minor] and toward other children in the same home in the presence of [Minor], to show why [Minor] was afraid of him and was reluctant to come forward to testify against him." Kaawa filed a motion in limine to preclude "[t]estimonial or documentary evidence relating to any other 'bad acts' involving the defendant[.]" The Circuit Court denied this portion of Kaawa's motion in limine "subject to only the [HRE Rule] 404(b)."
During its case-in-chief, the State presented some evidence of Kaawa's engaging in physical violence directed at Minor and her siblings. Minor's second oldest brother (Brother 2) testified that he recalled an incident when Minor was about fifteen, in which Kaawa was hitting Minor and Minor was begging Kaawa to stop. Brother 2 also testified that Kaawa would give him and Minor's oldest brother (Brother 1) "lickins" if Kaawa discovered that they had been playing with Kaawa's Xbox 360. Brother 2 stated that Kaawa hit him with a backhand to the face after discovering Brother 2 had been sneaking into Kaawa's room to find the remote control for the Xbox, and that this happened "more than once."
In the defense case, Kaawa's counsel asked CF, the girlfriend of one of Kaawa's brothers (Uncle l),  whether she had seen signs of abuse in Kaawa's family, and CF denied seeing signs of abuse. Defense counsel later asked CF whether she had the opportunity to see how Kaawa disciplined his children. After CF responded affirmatively, defense counsel asked CF to share her observations with the jury. In response, the Circuit Court asked counsel to approach the bench. At side-bar, the Circuit Court advised defense counsel that he was "opening the door." The Circuit Court stated: "You're asking about ever saw signs of abuse in the Kaawa family. You're opening the door wide open. You want to continue to go down that path?" Defense counsel stated that he was just talking about physical abuse, not sexual abuse. When the bench conference concluded, defense counsel asked CF if Kaawa ever hit Brother 2, and CF said she never saw that happen.
When Kaawa testified, he denied ever hitting the children. Kaawa stated that "I never hit my kids, and I never allow nobody for hit my kids."
In rebuttal, the State called Brother 1. Brother 1 testified that he recalled "plenty" of times when Minor got "lickings." He recalled one incident when Minor was sixteen and talked back to Kaawa. Kaawa became angry and grabbed Minor by the hair, and he "was just wailing on her" with an open hand, striking her on the head. Brother 1 also testified that Kaawa would give Brother 1 and Brother 2 "lickings" if they did not finish their ...