NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
NO. 27845
IN
THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI‘I
STATE OF HAWAI‘I, Plaintiff-Appellee,
v.
STEWART AMINA, Defendant-Appellant
For the reasons set forth below, we conclude that Amina's arguments are without merit and affirm the Judgment.
I.
Amina was the Complainant's uncle by marriage. While the Complainant was in kindergarten and the first grade, Amina was one of the adults who would pick up the Complainant from school and take her to her maternal grandmother's house, where the Complainant often spent the night. During portions of this time, Amina and his wife, the Complainant's aunt, lived in a bedroom in the grandmother's residence.
The indictment charged Amina with three counts of first degree sexual assault for subjecting the Complainant, when she was less than fourteen years old, to sexual penetration by inserting his penis into her mouth. At trial, the Complainant testified to sexual assaults committed by Amina in three different places: 1) Amina's bedroom at the grandmother's house, 2) the grandmother's kitchen, and 3) Amina's car while at a Manoa park.
The Complainant testified that she was in kindergarten or first grade the first time that Amina sexually assaulted her in his bedroom. Amina picked the Complainant up from school, took her to his room, showed her a pornographic video of a woman sucking on a man's penis, and told her to copy what was on the video or he would kill her aunt (his wife). Amina put his penis in the Complainant's mouth and told her to suck on it, and she complied. The Complainant testified that the same thing happened on other occasions in the bedroom, although Amina did not always use a pornographic video.
The Complainant testified that on one occasion while she was in kindergarten, Amina sexually assaulted her by putting his penis in her mouth while they were in her grandmother's kitchen. She also testified that Amina took her to a park in Manoa on a number of occasions and sexually assaulted her by putting his penis in her mouth while they were in the front seat of Amina's black car.
According to the Complainant, Amina's sexual assaults stopped when she was in the second grade. Around this time, Amina moved out of the grandmother's house and separated from the Complainant's aunt. The Complainant did not disclose the sexual assaults until more than six years after the last incident. The Complainant testified that her disclosure was triggered by a disturbing encounter that she had with a man while riding the bus when she was in the eighth grade. The man sat next to her, put his hand on her leg, and began to rub it. The man's conduct shocked the Complainant and brought back memories of "everything that happened when [she] was younger." While talking to her grandmother about the bus encounter, the Complainant told her grandmother that Amina had molested her.
II.
A.
We reject Amina's claim that the circuit court committed plain error in allowing him to be convicted of three counts of first degree sexual assault (HRS § 707-730(1)(b)) instead of one count of continuous sexual assault of a minor under the age of fourteen years (HRS § 707-733.5). Amina contends that because both HRS § 707-730(1)(b) and HRS § 707-733.5 were in effect at the time he was indicted, the prosecution had the option of charging him under either statute. Amina further contends that because charging him with three counts of violating HRS § 707-730(1)(b) exposed him to stiffer sentencing possibilities than charging him with one count of violating HRS § 707-733.5, the prosecution, under the rule set forth in State v. Modica, 58 Haw. 249, 250-51, 567 P.2d 420, 421-22 (1977), should have been required to charge him with a single count of violating HRS § 707-733.5.
We disagree with Amina's analysis. Amina was indicted for offenses that were committed between 1992 and 1995. The offense of continuous sexual assault of a minor under the age of fourteen years, HRS § 707-733.5, was enacted in 1997 and became effective on July 7, 1997, after Amina's alleged acts of sexual assault had been committed. 1997 Haw. Sess. L. Act 379, §§ 2 & 5 at 1192-93. HRS § 707-733.5 was not made retroactive to acts committed before its effective date. Id. at §§ 3 & 5 at 1193; see HRS § 1-3 (1993) ("No law has any retrospective operation, unless otherwise expressed or obviously intended."). Thus, Amina could not have been charged with violating HRS § 707-733.5. The fact that HRS § 707-733.5 was in effect when Amina was indicted is irrelevant, and Amina is simply wrong in contending that the prosecution had the option of charging him with violating HRS § 707-733.5. Because Amina could not have been charged with violating HRS § 707-733.5, it is unnecessary for us to address Amina's contention that charging him with three counts of violating HRS § 707-730(1)(b) instead of one count of violating HRS § 707-733.5 implicates the Modica rule.
B.
Amina argues that "the [C]omplainant's testimony that sexual assault occurred on occasions other than as [s]he described in the bedroom, kitchen or car amounted to other bad acts and were inadmissible under HRE Rule 404(b)." He further argues that the circuit court "plainly erred in admitting such highly prejudicial evidence." We disagree with Amina's arguments.
Amina was charged with three counts of first degree sexual assault, with each count alleging that the offense was committed within about a two-year or three-year span of time. The Complainant was not able to specify the particular dates of the sexual assaults, but described sexual assaults occurring in Amina's bedroom, in the kitchen, and in Anima's car between the time she was in kindergarten and the second grade. The Complainant testified that Amina sexually assaulted her on more than one occasion in the bedroom and in the car. In closing argument, the prosecutor linked the three counts to the three different locations where the Complainant testified she had been sexually assaulted, and the jury was given a specific unanimity instruction.
We conclude that the Complainant's testimony challenged by Amina was not other act evidence under HRE Rule 404(b), but constituted direct evidence of the charged offenses. State v. Arceo, 84 Hawai‘i 1, 27, 928 P.2d 843, 869 (1996). In Arceo, the Hawai‘i Supreme Court stated:
[W]e hold as a threshold matter that, by virtue of the vulnerabilities to which child victims of repeated instances of sexual abuse are susceptible, the prosecution may, at its option, seek a single conviction by charging multiple acts, each of which constitutes a separate and distinct sexual assault, within a single count of an indictment or complaint. We therefore hold that, if the prosecution does so, then testimony regarding any or all of the multiple acts is direct evidence of the charged offense and does not implicate other crimes, wrongs, or acts with which HRE 404(b) is concerned. Thus, . . . we hold that the probative value of the testimony would outweigh the danger of unfair prejudice to the defendant and would survive a challenge under HRE 403.
Id. at 27, 929 P.2d at 869 (footnotes, citations, and internal quotation marks omitted).Amina was charged with three counts of committing sexual assaults that occurred over spans of time. Under Arceo, the Complainant's testimony that sexual assaults took place in Amina's bedroom and in Amina's car on more than one occasion was admissible as direct evidence of the charged offenses. The circuit court did not err, much less plainly err, in admitting the Complainant's testimony.
C.
We conclude that the circuit court did not abuse its discretion in qualifying Dr. Alexander Bivens, a clinical psychologist, as an expert to testify about the dynamics of child sexual abuse, including late disclosure. Dr. Bivens had a Ph.D. in clinical psychology; had professional experience in counseling and treating children and adolescents, some of whom were victims of sexual abuse; had kept current on research and articles in the field of child sexual abuse; and had previously testified in Hawai‘i courts as an expert in child sexual abuse and child memory. Dr. Bivens possessed sufficient skill, knowledge, and experience in the field of child sexual abuse for the circuit court to qualify him as an expert. HRE Rule 702 (1993); State v. Fukagawa, 100 Hawai‘i 498, 503-04, 60 P.3d 899, 904-05 (2002).
We also reject Amina's claim that the circuit court abused its discretion in allowing Dr. Bivens's testimony about the lack of behavior irregularities in child sexual abuse victims because it was not relevant and served only to bolster the Complainant's credibility. Amina had sought to impeach the Complainant's allegations of sexual abuse by pointing out that she appeared to be a well-adjusted child who did well in school and did not exhibit behavioral problems. Dr. Bivens testified on cross-examination that sexual assault can be a traumatic experience for children that may result in sleeping difficulties, irritability, anger, acting out sexual activities, "distress" of adults, and difficulty concentrating, among other things. He also opined on redirect examination that sexually abused children do not necessarily exhibit certain set behaviors, and there is no specific syndrome of symptoms that follow sexual abuse.
Amina argues that the circuit court erred in permitting Dr. Bivens to opine that sexually abused children do not necessarily exhibit behavioral irregularities. We disagree. The Hawai‘i Supreme Court has recognized that "sexual abuse of children is a particularly mysterious phenomenon, and the common experience of the jury may represent a less than adequate foundation for assessing the credibility of a young child who complains of sexual abuse." State v. Batangan, 71 Haw. 552, 557, 799 P.2d 48, 51 (1990) (citations and quotation marks omitted). Therefore, expert testimony that helps the jury understand the behavior of child sex abuse victims is admissible. See id. at 557-58, 799 P.2d at 51-52. We conclude that Dr. Bivens's testimony properly focused on explaining the behavior of child sex abuse victims, and it did not constitute an impermissible comment on the Complainant's credibility. See id.III.
We affirm the February 27, 2006, Judgment of the circuit court.
DATED: Honolulu, Hawai‘i, November 21, 2007.
On the briefs:
1. During the time
period that the offenses charged in the indictment were alleged to have
occurred, between June 25, 1992, and September 1, 1995, Hawaii
Revised Statutes (HRS) § 707-730(1)(b) (1993) provided, in
relevant part, that "[a] person commits the offense of sexual
assault in the first degree if . . . [t]he person knowingly subjects to
sexual penetration another
person who is less than fourteen years old."
2.
HRS §
707-733.5 (Supp. 1997), the statute establishing the offense of
continuous sexual assault of a minor under the age of fourteen years,
was
enacted in 1997, and provided:
(a)
Either resides in the same home with a minor under
the age of fourteen years or has recurring access to the minor; and
(b)
Engages in three or more acts of sexual penetration
or sexual contact with the minor over a period of time, but while the
minor is under the age
of fourteen years,
is guilty
of the offense of continuous sexual assault of a minor under the age of
fourteen years.
(2) To convict under this section, the trier of fact, if a jury, need unanimously agree only that the requisite number of acts have occurred; the jury need not agree on which acts constitute the requisite number.