TO THE INTERMEDIATE COURT OF APPEALS (CAAP-13-0000118; CR.
Benjamin E. Lowenthal for petitioner
Artemio C. Baxa for respondent
RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON,
E. Barrios challenges his convictions and resulting 100-year
prison sentence for numerous sexual assaults on a minor. We
affirm Barrios's convictions, but vacate the sentence
since the circuit court did not adequately explain its
reasons for imposing multiple consecutive prison terms on
Barrios, and since the court appeared to use Barrios's
refusal to accept guilt as an aggravating factor in imposing
his sentence. Accordingly, we affirm in part and vacate in
part the Intermediate Court of Appeals' March 13, 2015
judgment on appeal and the circuit court's judgment of
conviction and sentence, and remand this matter to the
circuit court for resentencing before another judge.
Circuit Court Proceedings
November 15, 2010, the State filed an indictment against
Barrios in the Circuit Court of the Second Circuit,
charging Barrios with 200 felonies relating
to Barrios's alleged sexual assault of two minors: Minor
Daughter (MD) and Minor Son (MS). The charges relating to MD
were detailed in counts 1-193, alleging sexual assault in the
first degree in violation of HRS § 707-730, kidnapping in
violation of HRS § 707-720, and sexual assault in the third
degree in violation of HRS § 707-732. The charges
relating to Barrios's offenses against MS were detailed
in counts 194-200, alleging sexual assault in the first
degree, kidnapping, and attempted sexual assault in the first
degree in violation of HRS §§ 705-500 and 707-730.
Barrios pleaded not guilty and demanded a jury trial.
Barrios's trial began on October 3, 2012, and lasted
until November 15, 2012, when the jury returned its verdict.
State's testimony at trial established that MD and
MS--Mother's children from a prior marriage--were under
the age of fourteen throughout the period of the alleged
sexual assaults. Mother and Barrios began dating, and in
2004, they and the children moved in together.
testified that she and Barrios both used crystal
methamphetamine extensively. Mother testified that during the
drug use, her relationship with Barrios was often violent,
once resulting in two fractured ribs after he punched her.
Mother also testified that Barrios was often violent with MD.
testified that she began to observe physical interactions
between Barrios and MD, which worsened as Barrios's drug
use increased. Mother stated that she witnessed MD using her
hands to masturbate Barrios "for years. It happened
every time we used drugs." Mother also testified that
she witnessed MD "put[ting] her mouth on [Barrios's]
penis and giv[ing] him oral sex . . . . eight times a month
minimum." MD and Mother both testified that Barrios
would often force MD to watch pornography with him.
further testified that beginning in the summer of 2004,
Barrios "made me touch his penis with my hand. And he
um, made me put his penis in my mouth and um, he um, he would
um, touch my breasts and bite my breasts and he would put his
mouth on my vagina too." MD testified that between July
and December of 2004, this happened at least once a month,
but that at other times, such as late 2005 through early
2006, it happened far more frequently, "like once a week
testified that on some occasions while Barrios sexually
assaulted her, he used physical force on her, such as holding
her down, punching her, and pulling on her hair or her neck.
Both Mother and MD testified that on at least one occasion,
Barrios forced them both to perform oral sex on him at the
cross-examination, MD testified that she was not certain of
the exact number of times Barrios did certain things to her,
and she was "trying to estimate, but, like,
conservatively estimate because I know it happened a
testified to several instances in which Barrios forced MS to
touch or suck on Barrios's penis. For example, MS further
testified that Barrios came into MS's room, threw MS from
his bed, punched MS in the stomach, and then made MS suck his
penis. MS also testified that if he did not do certain
things, like clean his room or train for football, Barrios
would punch him. MS further testified that on one occasion,
Barrios hit him on the head with a screwdriver, and on
another occasion, Barrios made MS kneel on Hawaiian salt
"for a long time" after MS had gotten into trouble.
the State completed its case, the defense rested without
calling any witnesses or presenting any evidence.
closing, the State highlighted that Barrios's abuse of MD
occurred when MD was between eight and thirteen years old,
and his abuse of MS occurred while MS was between eight and
ten years old. The State also highlighted that "[e]ach
act of sexual penetration constitutes a separate
argued that the State's evidence consisted solely of
"nonsensical, inconsistent stories, " and that the
State had not produced any physical evidence of the alleged
assaults. Barrios argued that the State was attempting to
influence the jury by appealing to their sense of pity for
the complaining witnesses: "You know what they teach you
in law school: If you don't have the evidence, you show
the jury the law. If you don't have the law, you show the
jury the evidence. If you don't have either, you focus on
emotions, passions and prejudice."
rebuttal, the State responded that "[w]e're just
asking you to hold this Defendant responsible based on the
evidence that was presented in this case." The State
also argued: "Now, when a child is physically injured
and needs help, they usually go to a doctor or they go to the
hospital. When a child needs spiritual healing, they go to
church. When a child needs justice, they come before a
jury." At this point Barrios objected based on "the
inflammatory nature of these comments." The circuit
court overruled the objection.
November 15, 2012, the jury found Barrios guilty of 146
felonies: 72 counts of sexual assault in the first degree, 72
counts of sexual assault in the third degree, and 2 counts of
kidnapping. All of the charges for which the jury returned a
guilty verdict related to MD; Barrios was acquitted of all of
the charges relating to MS.
State filed a motion for consecutive terms of imprisonment
for certain of Barrios's convictions, for a total of
eighty years' imprisonment.
sentencing hearing, Barrios's counsel noted that Barrios
had not submitted a letter of apology for the presentence
investigation (PSI) report upon the advice of his counsel
because he was planning to appeal his convictions.
Barrios's counsel also acknowledged receipt of the PSI
report and attached addendum, which included a letter written
by MS and nine letters written by MS's and MD's
State then asked the court to allow MD to speak, MD's
grandmother (Grandmother) to read aloud a letter she had
written, and for a letter written by MS to be read aloud.
Barrios objected to MS's letter being read because it had
already been submitted for inclusion in the PSI report and as
such was duplicative and unnecessary. The court allowed all
three of the State's requests. MD spoke of her
experiences, saying, "[a]s a child in school, when we
were asked to create little monsters, I always had the urge
to recreate an image of [Barrios]." She referred to
Barrios repeatedly as a monster and concluded by saying that
she had "rise[n] above the abuse and put away the
Finally, the circuit court addressed Barrios:
Mr. Barrios, you are the nightmare that came true. 146
counts. The jury has spoken. A jury of your peers convicted
you of 72 A felonies, two B felonies, 72 C felonies; and now
we are here for you -- for me to pass judgment on you for the
crimes you committed against your family.
Under 706-606, the Court needs to consider what kind of
sentence is appropriate, and I can think of no crime as
horrendous as the one that you imposed upon this family other
than murder. So many A felonies. This young child was a
child, a baby. I think she was eight years old when the abuse
started. Eight years old, a second grader, and it went on for
years and years and years. You groomed her. You used threats,
You used manipulation. You used mind games. You molded her to
be a victim, and I'm so proud that she's grown into
such a wonderful, intelligent, smart, and strong young woman,
and she will be a smart, intelligent, and strong adult when
she gets older.
The history and circumstances of the crime that the Court
needs to look upon can be no more serious crime than the 72 A
felonies that you're looking at, a total of 146 different
counts. You have no respect for the law.
You have never exhibited any kind of remorse or
responsibility for any of your actions. I believe at one
point I was hearing about, oh, they made up the story to get
me out of the house, or something along these lines.
The Court needs to consider just punishment for the amount of
felonies that you are facing. The Court needs to consider
adequate deterrence for your criminal conduct. You have
convictions out of California. Your life of crime started
back in '85. You are a sex offender out of California and
never bothered to register in the State of Hawaii.
You put a child through what I can only think is the most
unspeakable, unthinkable things that a child has to go
through. You introduced her to pornography, to masturbation,
to fellatio, cunnilingus, you kidnapped her, held her against
her will, just deviant sexual behavior, and, yes, you will be
characterized as a child molester, a sexual predator because
that's exactly what you are. You are a monster. You are a
The State's asking for consecutive sentences. They're
saying 80 years will be enough to protect the public from
further crimes of you. [Barrios's counsel] is saying this
is basically one big class A felony, and I should give you 20
years and let you go to prison for 20 years, and that's
But like I said earlier, the jury has spoken. The jury
convicted you of crimes of fellatio, of cunnilingus, of
kidnapping, of sexual penetration, the jury convicted you of
all of these crimes, all of these crimes.
I think back of the testimony that I heard over those weeks
of trial, about how you started off with handjobs and
pornography, oral sex on the poor victim, making her do all
kinds of things to you, and I think what bothered me the most
was the tandem sexual acts with the mother and the child that
you made them perform, with one giving you a blowjob and the
other one manipulating your testicles, and I guess when they
got tired, they tag teamed and they switched positions. That
was one of the most deplorable things I have ever heard of a
man doing to a child and mother. A child and a mother at the
You showed no remorse. You showed no remorse then, and you
show no remorse now, and I know [defense counsel] has
suggested that you not say anything. I respect that. That is
your right. But your behavior is that of a twisted, sick
person. As sick as I can think back in all my years that
I've been on the bench that I have ever seen. That I have
ever seen. The trauma that you've inflicted will have
Not only about you, Mr. Barrios, but about this family that
you tore apart, and I'm so proud that they're trying
to mend and to get themselves back together and to move on.
And I'm proud that they're moving on and making
something of themselves. These are wonderful children, and
they will grow up to be wonderful adults. Wonderful adults.
It is the hope of this Court for the safety of all children
that you should never see the outside of a prison's
circuit court then imposed a sentence of 100 years'
imprisonment and required Barrios to make Crime Victim
Compensation fee payments.
B. ICA Appeal
appealed and argued, inter alia, that (1) "The
Prosecutor's comment that a child in need of justice goes
to a jury was inflammatory and arose to egregious
prosecutorial misconduct warranting a new trial[;]" (2)
"The circuit court erred in allowing people other than
[MD] to be heard and recommend Mr. Barrios' disposition
at the sentencing hearing[;]" and (3) "The circuit
court abused its discretion in sentencing Mr. Barrios to
prison for 100 years." (Capitalization omitted).
held that the prosecutor's remark during closing did not
constitute prosecutorial misconduct when viewed in the
context of the whole closing argument and that the
prosecutor's comment was "a proper appeal to the
jury to do 'justice' based on the evidence that was
introduced during the trial."
the ICA concluded that Barrios waived any objection to
Grandmother reading her letter at the sentencing hearing
because he had failed to object when it was requested by the
State. Even if Barrios had not waived this objection, the ICA
reasoned that nothing in HRS § 706-604 precludes people
other than the defendant and the victim from being heard at a
the ICA determined that the circuit court did not abuse its
discretion by imposing its sentence and by calling Barrios a
"monster" and "sick" and
"twisted." The ICA further concluded that the
circuit court sufficiently articulated a "meaningful
rationale" for the sentence in light of the factors
enumerated in HRS § 706-606.
therefore affirmed Barrios's conviction and sentence. On
March 13, 2015, the ICA entered its judgment on appeal. On
May 7, 2015, Barrios timely filed his application for writ of
Standards of Review
Allegations of prosecutorial misconduct are reviewed under
the harmless beyond a reasonable doubt standard, which
requires an examination of the record and a determination of
whether there is a reasonable possibility that the error
complained of might have contributed to the conviction.
Misconduct of a prosecutor may provide grounds for a new
trial if the prosecutor's actions denied the defendant a
State v. Mainaaupo, 117 Hawai'i 235, 247-48, 178
P.3d 1, 13-14 (2008) (quotation marks and citations omitted).
A sentencing judge generally has broad discretion in imposing
a sentence. The applicable standard of review for sentencing
or resentencing matters is whether the court committed plain
and manifest abuse of discretion in its decision. Factors
which indicate a plain and manifest abuse of discretion are
arbitrary or capricious action by the judge and a rigid
refusal to consider the defendant's contentions. And,
generally, to constitute an abuse it must appear that the
court clearly exceeded the bounds of reason or disregarded
rules or principles of law or practice to the substantial
detriment to the litigant.
State v. Kong, 131 Hawai'i 94, 101, 315 P.3d
720, 727 (2013).
"[t]he weight to be given the factors set forth in HRS
§ 706-606 in imposing sentence is a matter generally
left to the discretion of the sentencing court, taking into
consideration the circumstances of each case."
Id. (quoting State v. Akana, 10 Haw.App.
381, 386, 876 P.2d 1331, 1334 (1994)).
application for certiorari presents three questions:
Did the ICA gravely err when it ignored nearly thirty years
of precedent and allowed the prosecutor to compare jurors to
doctors and priests who care for and comfort children, and
ask them to give the child witnesses "justice" by
finding Mr. Barrios guilty?
Did the ICA gravely err in upholding the [sic] Judge
Loo's use of non-victim statements at the sentencing
Was the imposition of 100 years of imprisonment with the hope
that Mr. Barrios dies in prison an abuse of discretion that
the ICA should have readily identified and remedied?
that the prosecutor's remark in closing argument was
improper, but harmless, and that the circuit court did not
err in allowing the letters to be read during the sentencing
hearing. However, we conclude that the circuit court abused
its discretion in imposing consecutive sentences totaling 100
years in prison.
The Prosecutor's Remark that "When a Child Needs
Justice, They Come Before a Jury" During Closing
Argument was Improper, but Harmless.
application, Barrios argues that the following remark by the
prosecutor at the end of the State's rebuttal closing
argument was improper: "Now, when a child is physically
injured and needs help, they usually go to a doctor or they
go to the hospital. When a child needs spiritual healing,
they go to church. When a child needs justice, they come
before a jury." Specifically, Barrios argues that this
was an appeal to the jurors' "abstract sense of
justice" and diverted the jury from its duty to decide
the case on the evidence presented.
addressing allegations of prosecutorial misconduct, we first
determine whether the statements were improper and, if so,
determine whether the misconduct was harmless. See State
v. Tuua, 125 Hawai'i 10, 14, 250 P.3d 273, 277
(2011). "During closing argument, a prosecutor 'is
permitted to draw reasonable inferences from the evidence and
wide latitude is allowed in discussing the
evidence.'" Id. (quoting State v.
Clark, 83 Hawai'i 289, 304, 926 P.2d 194, 209
(1996)). "Although a prosecutor has wide latitude in
commenting on the evidence during closing argument, it is not
enough that . . . his comments are based on testimony 'in
evidence'; his comments must also be
'legitimate.' A prosecutor's comments are
legitimate when they draw 'reasonable' inferences
from the evidence." Tuua, 125 Hawai'i at
14, 250 P.3d at 277 (quoting Mainaaupo, 117
Hawai'i at 253-54, 178 P.3d at 19-20) (internal citations
omitted). Finally, "it is 'generally recognized
under Hawai'i case law that prosecutors are bound to
refrain from expressing their personal views as to a
defendant's guilt or the credibility of
witnesses.'" Tuua, 125 Hawai'i at 14,
250 P.3d at 277 (quoting State v. Cordeiro, 99
Hawai'i 390, 424-25, 56 P.3d 692, 726-27 (2002)).
conclude that the prosecutor's remark improperly appealed
to the jury's emotions. See U.S. v.
Aviles-Colon, 537 F.3d 1, 24 (1st Cir. 2008) ("[I]t
is improper to appeal to the jury's emotions and role as
the conscience of the community.") (internal quotation
marks and citation omitted). The remark, by comparing the
jury to hospitals and churches, "appeared to invite the
jury to base its verdict on considerations other than the
evidence in the case." State v. Mars, 116
Hawai'i 125, 143, 170 P.3d 861, 879 (App. 2007) (finding
that the prosecutor's comment that "[t]his community
is measured by how we treat its weakest members" was
improper statement warrants a new trial if "there is a
reasonable possibility that the error complained of might
have contributed to the conviction." Tuua, 125
Hawai'i at 16, 250 P.3d at 279 (quoting State v.
Hauge, 103 Hawai'i 38, 47, 79 P.3d 131, 140 (2003)).
To assess whether a prosecutor's improper statement was
harmless, we evaluate three factors: "(1) the nature of
the conduct; (2) the promptness of a curative instruction;
and (3) the strength or weakness of the evidence against the
defendant." Tuua, 125 Hawai'i at 16, 250
P.3d at 279 (internal quotation marks and citation omitted).
that there was no reasonable possibility that the
prosecutor's remark contributed to Barrios's
while we have held that improper comments in closing argument
can constitute prosecutorial misconduct, the remark here does
not rise to the level of misconduct found in those cases.
See, e.g., State v. Marsh, 68 Haw. 659,
660-61, 728 P.2d 1301, 1302-03 (1986) (finding prosecutorial
misconduct and remanding for a new trial based on
prosecutor's statement "I'm sure [the defendant]
committed the crime"). Further, the remark was made as
part of an otherwise appropriate ...