As Amended December 17, 2015.
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT. (CR. NO. 11-1-1686).
On the briefs: William H. Jameson, Jr., Deputy Public Defender, for Defendant-Appellant.
Sonja P. McCullen, Deputy Prosecuting Attorney, City and County of Honolulu for Plaintiff-Appellee.
Nakamura, Chief Judge, Leonard and Reifurth, JJ.
Plaintiff-Appellee State of Hawai'i (State) charged Defendant-Appellant Michael Shimabukuro (Shimabukuro), a karate instructor, with four counts of sexually assaulting his karate student, while the student was a minor. The complaining witness (CW) was twelve to fifteen years old during the period when the alleged sexual assaults occurred. Shimabukuro was charged with two counts of first-degree sexual assault for engaging in sexual penetration by inserting the CW's penis into Shimabukuro's mouth (Counts 1 and 3) and two counts of third-degree sexual assault for causing the CW to have sexual contact with Shimabukuro by placing his hand on the CW's penis (Counts 2 and 4). A jury found Shimabukuro guilty of the included offense of third-degree sexual assault as to Count 1, guilty as charged of third-degree sexual assault as to Counts 2 and 4, and not guilty on Count 3. The Circuit Court of the First Circuit (Circuit Court) sentenced Shimabukuro to concurrent five-year terms of imprisonment.
On appeal, Shimabukuro contends that his trial counsel provided ineffective assistance by: (1) failing to object to evidence of an incident where Shimabukuro placed a penis enlargement device on the CW; (2) opening the door to evidence that Shimabukuro placed the device on another karate student; (3) failing to prevent the prosecutor from eliciting demeanor testimony; (4) asking a witness whether she believed the CW; and (5) asking Shimabukuro's mother certain questions that supported the testimony provided by two of the State's witnesses. We affirm.
Shimabukuro is a former Pan-American karate champion and karate instructor. Shimabukuro formed his own karate school, the Hawaii Karate Association (HKA), and his students trained at the Japanese Cultural Center of Hawai'i.
The CW first began studying karate at the age of six. Karate was his passion. The CW became highly skilled at karate and earned his black belt by the age of nine.
The CW began training with Shimabukuro when the CW was ten years old. The CW wanted to train with Shimabukuro because Shimabukuro was a Pan-American champion, and the CW aspired to be a champion. The CW trained diligently under Shimabukuro, wo hours a day on weekdays and four to five hours a day during the weekend. The CW was a member of the HKA's competition team and was highly successful. He became a champion and won medals in national and international karate competitions. Based on his dedication and success, the CW became a senpai, or teacher's aid, and the CW was given the responsibility of teaching other students at Shimabukuro's HKA school.
As the head karate instructor, Shimabukuro was referred to as " sensei" and held a position of trust and authority over his students. When sensei Shimabukuro entered the dojo, the students would all stand up, face Shimabukuro, and bow to him. The CW was taught to respect and obey Shimabukuro. The importance of loyalty and discipline was also emphasized by Shimabukuro.
According to the CW, the first incident of sexual assault occurred when the CW was about twelve to thirteen years old. The CW was training intensively in preparation for a national karate competition and was taking a nap before an afternoon training session on the floor of Shimabukuro's office. Shimabukuro woke the CW by tapping his shoulder, and when the CW turned over on his back, Shimabukuro touched and patted the CW's penis over the CW's clothes. Shimabukuro used his hand to touch and pat the CW's penis. The CW was shocked that Shimabukuro, whom he looked up to, would do that to him. The CW did not know how to react and " was afraid of what to say[.]" He did not tell anyone about the incident at that time.
Shimabukuro held sleepovers at the Japanese Cultural Center for students training for national competitions to give them more time to train. Sleepovers occurred four or five times during the summer and two or three times during the rest of the year. Parents did not attend the sleepovers; it was just Shimabukuro and the students. The CW attended the sleepovers held at the dojo.
During the sleepovers, Shimabukuro provided his minor students with alcohol (beer and hard liquor), pornographic magazines, and sexual paraphernalia, such as a penis enlarger. The CW drank the alcohol provided by Shimabukuro and would get drunk.
The CW testified that during a sleepover when the CW was twelve to thirteen years old, Shimabukuro showed the CW a penis enlarger while they were in a storage closet in the dojo. Shimabukuro explained how the device worked and then coaxed the CW into using it. Shimabukuro gave the CW the penis enlarger. The CW took off his pants and put the device on, and Shimabukuro helped the CW use the pump for the device. R.C., another student of Shimabukoro, testified that he saw Shimabukuro place the penis enlarger on student B.N., while the CW, R.C., B.N., and Shimabukuro were in the storage closet, and that Shimabukuro later gave the device to the CW.
The CW testified that after becoming " really intoxicated" at night during a sleepover, he fell asleep in the storage closet. The CW awoke to find that his shorts were halfway down his legs and Shimabukuro's hand was on the CW's penis masturbating him. Shimabukuro also sucked on the CW's penis. Shimabukuro did this more than once to the CW.
The CW stated he was unsure of how many times Shimabukuro placed his hand on the CW's penis and masturbated the CW, but Shimabukuro engaged in such conduct at least once when the CW was twelve or thirteen and at least once while the CW was fourteen or fifteen. Similarly, the CW was unsure of how many times Shimabukuro sucked on the CW's penis, but Shimabukuro engaged in such conduct at least once when the CW was twelve or thirteen and at least once when the CW was fourteen or fifteen. These incidents occurred in the storage closet during sleepovers when the CW was intoxicated and had fallen asleep. The CW indicated that because of his ...