State v. Tran

154 Haw. 211

549 P.3d 296

STATE of Hawai'i, Plaintiff-Appellant/Cross-Appellee,

v.Alvin TRAN, Defendant-Appellee/Cross-Appellant.

SCAP-23-0000063

Supreme Court of Hawai'i.

June 4, 2024

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT (CAAP-23-0000063; CASE NO. 1CPC-20-0000890)

Daniel Hugo for Plaintiff-Appellant/ Cross-Appellee

Thomas M. Otake, Honolulu, for Defendant-Appellee/ Cross-Appellant

Robert T. Nakatsuji, Honolulu, (on the briefs) for Amicus Curiae

RECKTENWALD, C.J., McKENNA, AND EDDINS, JJ., AND CIRCUIT JUDGE MALINAO, ASSIGNED BY REASON OF VACANCY¹

OPINION OF THE COURT BY RECKTENWALD, C.J.

This case centers on whether the statute regarding continuous sexual assault of a minor under the age of fourteen years, Hawai'i Revised Statutes (HRS) § 707-733.6 (2014), and a related provision of the Hawai'i Constitution, article I, section 25, comport with the U.S. Constitution. For the reasons stated below, we conclude that they do. We further conclude that the indictment against defendant Alvin Tran, charging a violation of HRS § 707-733.6, was sufficiently specific when construed under the liberal construction standard announced in State v. Motta, 66 Haw. 89, 657 P.2d 1019 (1983), and modified by State v. Wells, 78 Hawai'i 373, 894 P.2d 70 (1995).

Accordingly, we (1) vacate the circuit court’s order granting in part and denying in part Tran’s motion to dismiss; (2) affirm the circuit court’s denial of Tran’s supplemented new trial motion; and (3) remand the case to the circuit court for further proceedings.

I. BACKGROUND

In July 2020, a grand jury returned a single-count indictment against Tran as follows:

On or about January 1, 2015 to and including January 31, 2020, in the City and County of Honolulu, State of Hawai‘i, ALVIN TRAN, a person who either resided in the same home with [minor child], a minor under the age of fourteen years, or had recurring access to [minor child], with intent or knowledge that [minor child] was such a person, did intentionally or knowingly engage in three or more acts of sexual penetration and/or sexual contact with [minor child] over a period of time, while [minor child] was under the age of fourteen years, and was not married to [minor child], and knew he was not married to [minor child], thereby committing the offense of Continuous Sexual Assault of a Minor Under the Age of Fourteen Years, in violation of Section 707-733.6 of the [HRS].²

Pursuant to Section 707-700 of the [HRS (2014)], "married" includes persons legally married, and a male and female living together as husband and wife, but does not include spouses living apart.

Pursuant to Section 707-700 of the [HRS], "sexual penetration" means:

(1) Vaginal intercourse, anal intercourse, fellatio, deviate sexual intercourse, or any intrusion of any part of a person’s body or of any object into the genital or anal opening of another person’s body; it occurs upon any penetration, however slight, but emission is not required. As used in this definition, "genital opening" includes the anterior surface of the vulva or labia majora; or

(2) Cunnilingus or anilingus, whether or not actual penetration has occurred.

Pursuant to Section 707-700 of the [HRS], "deviate sexual intercourse" means any act of sexual gratification between a person and an animal or a corpse, involving the sex organs of one and the mouth, anus or sex organs of the other.

Pursuant to Section 707-700 of the [HRS], "sexual contact" means any touching, other than acts of "sexual penetration", of the sexual or other intimate parts of a person not married to the actor, or of the sexual or other intimate parts of the actor by the person, whether directly or through the clothing or other material intended to cover the sexual or other intimate parts.

During trial in April 2022, the State presented testimony from (1) minor child, (2) minor child’s mother, (3) minor child’s father, (4) a pediatrician who interviewed minor child, (5) a clinical psychologist, (6) a Honolu- lu Police Department (HPD) evidence specialist, (7) a homeland security special agent, and (8) an HPD detective with the sex crimes detail. Tran presented testimony from (1) a sex assault nurse examiner, (2) Tran’s brother, and (3) Tran’s sister, but did not testify himself.

Minor child testified at trial that Tran was her father’s best friend and that she had known Tran "[s]ince I was bom." According to minor child, Tran lived with her father at times, and she would see Tran at her father’s house when she was staying with her father. Minor child testified further that from ages eight to twelve, Tran, among other things, "rub[bed] my lower private areas," "touch[ed] my breasts" with "[h]is hand and his mouth," "put his lips on my lips and … swirl[ed] his tongue in my mouth," and "suck[ed] … and lick[ed] … and touch[ed] … with his hand" minor child’s lower private area.

Tran argued in closing, among other things, that an inexperienced detective had "rush[ed] to judgment" and was "not focused on a fair investigation." He also contended that minor child was "not credible," was "seeking out attention," and came from "a broken home."

At the close of the evidence, the circuit court³ instructed the jury on continuous sexual assault of a minor under the age of fourteen, under HRS § 707-733.6. The circuit court stated the offense’s material elements: (1) "[t]hat, on or about January 1, 2015, to and including January 31, 2020, in the City and County of Honolulu, State of Hawai'i, the defendant, [Tran], intentionally or knowingly engaged in three or more acts of sexual penetration or sexual contact with [minor child]"; (2) "[t]hat [Tran] intentionally or knowingly resided in the same house with [minor child] or had recurring access to [minor child] at that time"; (3) "[t]hat [Tran] knew he was not married to [minor child] at that time"; and (4) "[t]hat [minor child] was less than fourteen years old at that time."

The circuit court then instructed the jury that, "[a]s to Element No. 1, you need to unanimously agree only that the requisite number of acts have occurred; you need not agree on which acts constitute the requisite number." This instruction tracked HRS § 707-733.6(2)’s language, which states that "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."

Finally, the circuit court provided the statutory definitions of "sexual penetration," "sexual contact," "deviate sexual intercourse," and "married." See HRS § 707-700.

All members of the jury agreed to a guilty verdict. The circuit court asked the jury foreperson, "has the jury reached a unanimous verdict in this case?" The foreperson replied "Yes, ma’am." At Tran’s request, the circuit court polled the jury, noting that "the purpose of a jury poll is to ensure that the verdict just announced is unanimous and represents the true verdict of the jury." The circuit court then instructed the jurors to "answer yes if you agree with the verdict, answer no if you do not agree with the verdict." Each juror, when asked individually, answered "Yes." The circuit court concluded that "[t]he verdict is unanimous. And consistent with the jury’s verdict, which has been received, … the [c]ourt adjudges Mr. Tran guilty of the offense of Continuous Sexual Assault of a Minor Under the Age of Fourteen Years."

In May 2022, after the verdict but before sentencing, Tran moved for a new trial, alleging several errors, including improperly excluded evidence and prosecutorial misconduct. Later that month, the circuit court allowed Tran to supplement his new trial motion over the State’s opposition.

Specifically, Tran added an argument to his new trial motion based on the U.S. Supreme Court’s decision in Ramos v. Louisiana, which held that the Sixth Amendment to the U.S. Constitution requires verdicts from unanimous juries to support convictions. See 590 U.S. 83, 140 S. Ct. 1390, 1397, 206 L.Ed.2d 583 (2020). Tran argued that "the federal constitution, by way of its Sixth and Fourteenth Amendments, does not allow a state to alter the verdict unanimity that the Sixth Amendment’s jury trial clause requires to convict on a criminal offense."

Tran argued first that article I, section 25(2) of the Hawai'i Constitution, providing that, "[i]n continuous sexual assault crimes against minors younger than fourteen years of age, the legislature may define … [w]hat constitutes the jury unanimity that is required for a conviction," is unconstitutional under the Sixth and Fourteenth Amendments to the U.S. Constitution. Second, without the benefit of this constitutional provision, HRS § 707-733.6 is unconstitutional under the Hawai'i Constitution and the Fourteenth Amendment to the U.S. Constitution. Third, without HRS § 707-733.6, Hawai'i law requires unanimous jury agreement on each of the three acts required by HRS § 707-733.6(1)(b) (2014). Fourth, the circuit court’s jury instruction on HRS § 707-733.6(2) (2014)’s unanimity rule, requiring jury unanimity only as to whether a minimum of three acts occurred and not requiring unanimity as to which three acts occurred, permitted the jury to convict Tran on an invalid and unconstitutional legal theory. Fifth, the jury’s guilty verdict must be vacated because it might rest upon the aforementioned theory. Finally, Tran argued he was entitled to a new trial where the jury would be instructed that all jurors must agree on at least three specific acts to return a guilty verdict under HRS § 707-733.6.

In April 2022, one week after Tran was convicted, we issued our decision in State v. Jardine, which clarified the specificity required in criminal charges. 151 Hawai'i 96, 508 P.3d 1182 (2022). Specifically, we held that, because " ‘substantial bodily injury’ is a generic term for which the State must include the statutory definition by stating the species of injury allegedly inflicted, and/or a ‘to wit’ clause specifying the alleged...