APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT (CR. NO. 10-1-0589 (1))
Benjamin E. Lowenthal for Defendant Appellant
Artemio C. Baxa Deputy Prosecuting Attorney County of Maui for Plaintiff-Appellee
NAKAMURA, CHIEF JUDGE, LEONARD AND REIFURTH, JJ.
Defendant-Appellant William E. Barrios (Barrios) appeals from a Circuit Court of the Second Circuit (Circuit Court) Judgment of Conviction and Sentence filed on February 1, 2013. Barrios was convicted of seventy-two counts of Sexual Assault in the First Degree, in violation of Hawaii Revised Statutes (HRS) § 707-730 (Supp. 2013), seventy-two counts of Sexual Assault in the Third Degree, in violation of HRS § 707-732 (Supp. 2013), and two counts of Kidnapping, in violation of HRS § 707-720 (1993 & Supp. 2013), for a total of 146 convictions. Barrios was sentenced to the custody of the Director of the Department of Public Safety for a maximum term of 100 years, as follows: Counts 1 through 4 - twenty (20) years each, concurrent with each other; Count 5 - five (5) years, concurrent; Counts 21 through 33 - twenty (20) years, concurrent with each other and to run consecutive to all other counts; Counts 34 through 40 – five (5) years, concurrent with each other and to run concurrent with all other counts; Counts 41 through 42 - ten (10) years, concurrent with each other and to run consecutive to all other counts; Counts 46 through 65 - five (5) years, concurrent with each other and to run concurrent with all other counts; Counts 66 through 89 - twenty (20) years, concurrent with each other and to run consecutive to all other counts; Counts 90 through 120 -twenty (20) years, concurrent with each other and to run consecutive to all other counts; Counts 130 through 153 – five (5) years, concurrent with each other and to run consecutive to all other counts; and Counts 174 through 193 - five (5) years, concurrent with each other and to run consecutive to all other counts.
On appeal, Barrios argues, primarily, that his sentence should be vacated on the grounds that: (1) the Circuit Court violated Hawai'i sentencing law when it allowed statements from the victim's grandmother and brother at the sentencing hearing; and (2) the Circuit Court abused its discretion when it imposed a maximum sentence of 100 years in prison because Barrios could have been charged and sentenced to a shorter term under an alternative statute concerning the continuous sexual assault of a minor under the age of fourteen years. In addition, Barrios argues that his conviction should be vacated based on alleged evidentiary errors and prosecutorial misconduct. We affirm.
I. BACKGROUND FACTS
Barrios was charged by an indictment filed on November 15, 2010, with 104 counts of Sexual Assault in the First Degree, HRS § 707-730, eighty-three counts of Sexual Assault in the Third Degree, HRS § 707-732, and five counts of Kidnapping, HRS § 707- 720, stemming from alleged incidents involving his ex-girlfriend's minor daughter (MD). He was also charged with one count of Attempted Sexual Assault in the First Degree, HRS §§ 707-730, 707-500 (1993), three counts of Sexual Assault in the First Degree, HRS § 707-730, two counts of Sexual Assault in the Third Degree, HRS § 707-732, and one count of Kidnapping, HRS § 707-720, stemming from alleged incidents involving his ex-girlfriend's minor son (MS).
On March 16, 2012, the State of Hawai'i (State) filed a "Notice of Intent to Rely on Potential Rules 404(b), 608, or 609.1 HRE Material." This submission gave notice to Barrios that the State intended to use "[e]vidence of drug use and alcohol use during the commission of the crimes" to prove "motive, opportunity, intent, preparation, plan, knowledge, identity, modus operandi, or absence of mistake or accident" under Hawaii Rules of Evidence (HRE) Rule 404(b).
On August 24, 2012, Barrios filed a motion in limine to exclude certain evidence, including "[e]vidence of alleged drug use and alleged alcohol use during the commission of the alleged crimes" on the ground that such evidence could be prejudicial, confusing, or cumulative under HRE Rule 403.
The State's September 20, 2012 memorandum in response to Barrios's motion in limine alleged that while Barrios lived on Maui with his ex-girlfriend (Mother) and her children, MD and MS, both he and Mother frequently used drugs and alcohol. "Their choice [of] drugs were marijuana, crystal meth, and cocaine. . . . MD and MS were aware of the drugs in [Barrios's] and their mother's lives."
At the September 28, 2012 hearing on Barrios's motion in limine, defense counsel (Apo) argued:
MR. APO: [W]ell, I would just argue that it's more prejudicial than probative. It opens it up towards — to the introduction of other crimes or wrongs which have not been charged in any way in terms of any drug use, you know, at the very least alcohol use, or repercussions thereof. So I would submit that it's 403, plus it also leads towards the introduction of other crimes, wrongs, or acts.
The deputy prosecuting attorney (DPA) (Polak) responded, in part:
MS. POLAK: Rule 404 does not mandate that all prior bad acts need to be kept out. It's always the purpose to which this evidence is being introduced.
In this case, again, the entire complexity of the family, that's what this -- the two adults in the family have been doing around the kids. They've seen it all day long. There is pipes laying around the house. I think it's just incredibly difficult to sanitize this, and I don't think the Court should sanitize because this is what the children were around. And this is why the children were not able to really report [the abuse].
So I think -- you know, I don't know how much it actually affected the crime itself. I think there are times when the kids will be able to say, "Oh, he was acting weird. He was acting tweaked. He was acting like he was on drugs, " and then there's times when the drugs may not have had much to do with it[.]
In reply, defense counsel added:
MR. APO: Here's an additional concern that I have, your Honor. That when the State is over here now, elaborating specific prior bad acts, for example, pipes laying around the house and not giving me any prior 404(b) notice about these specific acts, I would object on that ground as well. I have no 404(b) notice, relative to any pipes laying around the house, for example.
After the court heard the arguments, the following exchange took place:
THE COURT: So Defense's 9F, just to be, clear, I'm denying 9F, which means that evidence of Mr. Barrios's alleged drug use and alleged alcohol use during the commission of the alleged crimes does come into play .
MR. APO: And I guess, at least in terms of the denied provision in mine --
THE COURT: As to evidence that you're aware of. But like you were telling me just now, the first time you heard about all these pipes laying around, obviously, if you're aware of ...