NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT (CR. NO. 11-1-1294)
On the briefs Jon N. Ikenaga, Deputy Public Defender, for Defendant-Appellant.
Donn Fudo, Deputy Prosecuting Attorney, City and County of Honolulu, for Plaintiff-Appellee.
Nakamura, C.J. and Fujise, J., with Reifurth, J., concurring separately
SUMMARY DISPOSITION ORDER
Defendant-Appellant Last Kony (Kony) appeals from the Judgment entered by the Circuit Court of the First Circuit (Circuit Court) on November 28, 2012 in which Kony was convicted of and sentenced for three counts of Sexual Assault in the First Degree in violation of Hawaii Revised Statutes (HRS) § 707-730(1)(c) (Supp. 2013), and three counts of Sexual Assault in the Third Degree in violation of HRS § 707-732(1)(c) (Supp. 2013).
On appeal, Kony argues that the Circuit Court erred by allowing the State of Hawai'i's (the State) expert to testify where his testimony was: (1) not relevant; (2) did not assist the jury in comprehending something not commonly known or understood; (3) improperly bolstered the complaining witness's testimony; and (4) improperly profiled him as a sex offender or alternatively, was misleading and highly prejudicial.
After a careful review of the points raised and the arguments made by the parties, the applicable authority and the record, we resolve Kony's point on appeal as follows and affirm.
"Generally, the decision whether to admit expert testimony rests in the discretion of the trial court. To the extent that the trial court's decision is dependant upon interpretation of court rules, such interpretation is a question of law, which [the appellate] court reviews de novo." Barcai v. Betwee, 98 Hawai'i 470, 479, 50 P.3d 946, 955 (2002) (internal citations omitted).
Here, Kony filed a Motion in Limine that sought to preclude Dr. Alex Bivens (Dr. Bivens) from testifying for the prosecution on the basis that his testimony was not relevant.The Circuit Court held a hearing on Kony's motion and determined that Dr. Bivens would be allowed to testify on the issue of delayed reporting, with any other areas of testimony to be determined on a "question by question" objection basis.
1. and 2. Kony argues that Dr. Bivens's testimony did not comport with Hawaii Rules of Evidence (HRE) Rule 702 and therefore "failed to meet the requirements for admissibility of expert testimony[.]" He argues that contrary to the State's representation that the testimony would only address the issue of delayed reporting, Dr. Bivens instead gave a "discourse that simply regurgitated ad nauseum external statistics and case studies" and "did not make the ultimate question in this case . . . more or less probable[.]" In particular, Kony argues that because Dr. Bivens's "testimony did not satisfy the four-pronged Batangan inquiry, the court erred in allowing him to testify and [Kony's] convictions must be vacated and the case remanded for a new trial." (citing State v. Batangan, 71 Haw. 552, 562, 799 P.2d 48, 54 (1990)).
Kony acknowledges that the standard for admissibility of expert testimony in child sex abuse cases, including the requirement that the testimony be "relevant" and "shown to assist the jury to comprehend something not commonly known or understood" was established in Batangan, 71 Haw. at 562, 799 P.2d at 54, but argues that "Batangan, presented distinct factual circumstances, and was decided during a wholly different social, political, and technological era." However, this court has rejected this notion and has sustained the presentation of such testimony in the recent past. See State v. Transfiguracion, 128 Hawai'i 476, 290 P.3d 546, No. CAAP-11-0000048, 2012 WL 5897413 at *2, (App. Nov. 21, 2012)(SDO) ("[E]ven if the circuit court were to credit Transfiguracion's unsubstantiated assertion that the news and entertainment media depict child sex abuse and delayed reporting on a regular basis, it does not necessarily follow that there has been any change in the public's understanding of the psychological effects of childhood sexual abuse.") cert, rejected, No. SCWC-11-0000048, 2013 WL 1285112 (Mar. 28, 2013); see also State v. Moisa, 126 Hawai'i 266, 269 P.3d 801, No. 30712, 2012 WL 247963 at *2, (App. Jan. 25, 2012)(SDO), cert, rejected, No. SCWC-30712, 2012 WL 1419552 (Apr. 24, 2012) .
3. and 4. Kony argues that Dr. Bivens's testimony improperly bolstered the complaining witness's testimony and profiled Kony as a sex offender which was misleading and highly prejudicial. Assuming, arguendo, that Kony properly preserved these objections, we reject them as without merit.
Kony admits that "Dr. Bivens did not have any information about the case, including [the complaining witness's] age and the relationship between" complaining witness and Kony and "did not explicitly state that he believed that abuse occurred or that [the complaining witness] was truthful, " but argues that "the statistical and profile evidence that he cited ...