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State v. McDonnell

Intermediate Court of Appeals of Hawai'i

January 30, 2015

STATE OF HAWAI'I, Plaintiff-Appellee,
v.
WILLIAM MCDONNELL, Defendant-Appellant

Editorial Note:

This decision is published in table format in the Pacific and Hawai'i reporter.

APPEAL FROM THE FAMILY COURT OF THE FIRST CIRCUIT. (FC-CR. NO. 13-1-0002).

On the briefs: Craig W. Jerome, Deputy Public Defender, for Defendant-Appellant.

Stephen K. Tsushima, Deputy Prosecuting Attorney, City and County of Honolulu, for Plaintiff-Appellee.

By: Leonard, Presiding Judge, and Ginoza, J.; and Reifurth, J., concurring.

SUMMARY DISPOSITION ORDER

Defendant-Appellant William McDonnell (McDonnell) appeals from the Judgment of Conviction and Sentence; Notice of Entry (Judgment) filed on November 19, 2013 in the Family Court of the First Circuit (Family Court),[1] Following a jury trial, McDonnell was found guilty of Count I, Sexual Assault in the First Degree (Hawaii Revised Statutes (HRS) § 707-730(1)(b) (Supp. 2013)), and Counts IV-VI, Sexual Assault in the Third Degree (HRS § 707-732(1)(b) (Supp. 2013)), and sentenced to a twenty-year term of imprisonment for Count I and concurrent five-year terms for Counts IV-VI.

On appeal, McDonnell raises two points of error, contending that: (1) Counts IV-VI should be vacated and remanded with instructions to dismiss because the indictment failed to allege that McDonnell was aware that the complainant was not married to him, which is an essential element of Sexual Assault in the Third Degree; and (2) the Family Court erred by allowing certain testimony from expert witness Dr. Alexander Bivens (Dr. Bivens) which was improper under Hawai'i Rules of Evidence (HRE) Rules 401, 402, 403, and 702.

Upon careful review of the record and the briefs submitted by the parties and having given due consideration to the arguments advanced and the issues raised by the parties, we resolve McDonnell's points of error as follows:

(1) Counts IV, V, and VI of the January 17, 2013 indictment against McDonnell state in relevant part:

COUNT IV: On or about the 1st day of November, 2012, to and Including the 13th day of January, 2013 in the City and County of Honolulu, State of Hawaii, WILLIAM MCDONNELL, being the parent or guardian or any other person having legal or physical custody of K.M., did knowingly subject to sexual contact, K.M., who was less than fourteen years old or did cause K.M. to have sexual contact with WILLIAM MCDONNELL, by placing his hand on her buttock, thereby committing the offense of Sexual Assault in the Third Degree, in violation of Section 707-732(1)(b) of the Hawaii Revised Statutes.
.. . .
COUNT V: On or about the 1st day of November, 2012, to and including the 13th day of January, 2013, in the City and County of Honolulu, State of Hawaii, WILLIAM MCDONNELL, being the parent or guardian or any other person having legal or physical custody of K.M., did knowingly subject to sexual contact, K.M., who was less than fourteen years old or did cause K.M. to have sexual contact with WILLIAM MCDONNELL, by placing his hand on her genitalia, thereby committing the offense of Sexual Assault in the Third Degree, in violation of Section 707-732(1)(b) of the Hawaii Revised Statutes.
.. . .
COUNT VI: On or about the 1st day of November, 2012, to and including the 13th day of January, 2013, in the City and County of Honolulu, State of Hawaii, WILLIAM MCDONNELL, being the parent or guardian or any other person having legal or physical custody of K.M., did knowingly subject to sexual contact, K.M., who was less than fourteen years old or did cause K.M. to have sexual contact with WILLIAM MCDONNELL, by placing his hand on her breast, thereby committing ...

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