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                                                   Electronically Filed
                                                   Intermediate Court of Appeals
                                                   CAAP-XX-XXXXXXX
                                                   30-JUN-2020
                                                   08:21 AM




                             NO. CAAP-XX-XXXXXXX

                 IN THE INTERMEDIATE COURT OF APPEALS

                            OF THE STATE OF HAWAI#I


               STATE OF HAWAI#I, Plaintiff-Appellee, v.
                 JAYLORD PARRAS, Defendant-Appellant


          APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
                     (CRIMINAL NO. 1PC13-1-001603)


                       SUMMARY DISPOSITION ORDER
                 (By: Leonard and Wadsworth, JJ., and
                   Ginoza, Chief Judge, dissenting)

            Defendant-Appellant Jaylord Parras (Parras) appeals
from the Judgment of Conviction and Sentence (Judgment), entered
on February 6, 2019, in the Circuit Court of the First Circuit
(Circuit Court).1/ After a jury trial, the Circuit Court
convicted Parras of one count of Sexual Assault in the First
Degree, in violation of Hawaii Revised Statutes (HRS) § 707-
730(1)(b) (2014)2/ (Count 1); one count of Sexual Assault in the



     1/
            The Honorable Glenn J. Kim presided.
     2/
            HRS § 707-730(1)(b) provides, in relevant part:
            (1) A person commits the offense of sexual assault in the
            first degree if:
                  . . . .

                  (b)   The person knowingly engages in sexual
                        penetration with another person who is less than
                        fourteen years old[.]
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Third Degree, in violation of HRS § 707-732(1)(b) (2014)3/ (Count
2); and two counts of Sexual Assault in the First Degree, in
violation of HRS § 707-730(1)(c) (2014)4/ (Counts 3 and 4).             The
convictions stemmed from charges that Parras had sexually
assaulted the complaining witness ("CW"), his half-sister, on
separate occasions when she was a minor. The Circuit Court
sentenced Parras to twenty years of imprisonment on each of
Counts 1, 3 and 4, and five years of imprisonment on Count 2,
with the sentences for Counts 1, 3, and 4 to run concurrently,
but consecutively to the sentence on Count 2.
          On appeal, Parras contends that the Circuit Court erred
in: (1) precluding Parras's former girlfriend, CA, from
testifying that he was a "peaceful, non-violent person"; and (2)
sentencing Parras to consecutive terms of imprisonment allegedly
based in part on his parents' mistreatment of the CW.
          For the reasons explained below, we vacate the Judgment
and remand the case to the Circuit Court for further proceedings.




     3/
          HRS § 707-732(1)(b) provides, in relevant part:
          (1) A person commits the offense of sexual assault in the
          third degree if:

                . . . .
                (b)   The person knowingly subjects to sexual contact
                      another person who is less than fourteen years
                      old or causes such a person to have sexual
                      contact with the person[.]
     4/
          HRS § 707-730(1)(c) provides, in relevant part:

          (1) A person commits the offense of sexual assault in the
          first degree if:
                . . . .

                (c)   The person knowingly engages in sexual
                      penetration with a person who is at least than
                      fourteen years old but less than sixteen years
                      old; provided that:
                      (i)    The person is not less than five years
                             older than the minor; and

                      (ii)   The person is not legally married to the
                             minor[.]

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                      I.   RELEVANT BACKGROUND

          At trial, the CW testified in part as follows: In
November 2007, when she was 13 years old, she, her mother and her
step-father moved to a house in Waipahu. During that time,
Parras "came to the door" and was "crying" because he had
recently broken up with CA. Later that night, the CW was talking
with Parras in the room where he was staying. Parras was laying
next to the CW on the floor. At some point, the CW "was probably
half asleep" or sleeping, when she woke up to Parras "fingering
[her]." Parras had "reached into [her] shorts, and he started
rubbing [her] vagina" with his hand and "inserted his fingers . .
. into [her] vagina." Parras "got up on his knees" and pulled
off CW's shorts and underwear, but left on her shirt. Parras
then "inserted his penis into [her] vagina[.] CW said "no," but
did not think Parras heard her. CW tried but was unable to push
Parras off of her because he was bigger than she was.
Eventually, the CW "just got up and left." The CW did not tell
anyone about this incident right after it happened because she
was hurt, embarrassed, angry and confused.
          The CW continued her testimony as follows: After the
CW's family renovated their house in 2008, Parras "officially
moved in." The CW was about 14 or 15 years old. One evening, as
the CW and Parras were home alone, Parras "came up from behind
[her,] and "started tickling [her]" with "his hands to . . .
[her] sides." Parras and the CW were laughing as they fell to
the floor. Parras was wearing only boxers. Parras "was on top
of [the CW]," and "just kept tickling [her] and . . . pulled
[her] shorts off as he was tickling [her]." Parras then
"inserted his penis into [the CW's] vagina[.]" Parras also
"fingered [the CW]" by putting "his fingers . . inside of [her]
vagina." CW tried to fight Parras with her legs and told him
"no." As she said "no," he put his hand over her mouth. Parras
did not stop and "was just laughing." The CW tried to get Parras
off of her, but she "was hurting, and . . . sad . . . so [she]
just stopped. [She] got tired." Eventually, Parras ejaculated
and "just left." The CW did not tell anyone immediately about
this incident.

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          Parras testified that he did not commit these acts, and
it was "all a lie."5/ He said that "around 2005," he moved out
of his family's house to live with CA, and in December 2008, when
he and CA broke up, he went to live with his friend, Craig, for a
short period of time. In early summer, 2009, he met his current
wife.
          As part of his defense, Parras called CA as a witness.
She testified that Parras was her ex-boyfriend and that, in 2006,
she had a child with him. She further testified that her
relationship with Parras continued from 2004 until December 2008
or January 2009. According to CA, she and Parras began living
together at her parents' house around March 2006, when she was
about seven months pregnant. She stated that Parras lived with
her until they broke up sometime after mid-December 2008.
          Having elicited testimony about the nature and length
of CA's relationship with Parras, defense counsel continued his
examination of CA as follows:
                  Q. Would you say based on your knowledge of him that
            you could form an opinion about whether he is a peaceful
            person or a violent person?

                  [DEPUTY PROSECUTING ATTORNEY (DPA)]:      Your Honor, I'm
            going to object. Relevance and --
                    THE COURT:   Sustained.

                    [DEFENSE COUNSEL]:   Your Honor, can we be heard on
            that?
                  THE COURT: No. Sustained. I don't believe peaceful
            or nonviolent is relevant to the issues in this case.
            Sustained.

            In his redirect examination of CA, defense counsel
continued:
                  Q. State just asked you if you guys would fight
            during your relationship?
                    A.   Yes.
                  Q. Given your knowledge of [Parras], would you say
            that you could form an opinion about whether he's peaceful
            or violent?
                    [DPA]:   Objection, Your Honor.   Relevance.

                    THE COURT:   Sustained.


      5/
            It appears there was no physical, medical, or scientific evidence
that directly supported either party's claims.

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                Q. (By [DEFENSE COUNSEL]) Did he -- was he ever -- was
          he ever aggressive or violent with you?
                [DPA]:    Same objection, Your Honor.

                THE COURT: I'll allow aggressive.

                THE WITNESS: No.


                               II.   DISCUSSION

          Parras contends that the Circuit Court erred in
precluding CA from providing opinion evidence of Parras's
pertinent character traits — namely, that he was a "peaceful,
non-violent person" — under Hawaii Rules of Evidence (HRE) Rules
404(a)(1)6/ and 405.7/     He argues that such evidence was relevant
and admissible based on this court's decision in State v. Iosefa,
77 Hawai#i 177, 880 P.2d 1224 (App. 1994).
           In Iosefa, the court held that a witness for the
defense should have been allowed to testify that the defendant,
who was charged with sexually assaulting a 16-year-old girl, was
"a peaceful, non-violent person." Id. at 186, 880 P.2d at 1233.
The court reasoned that testimony of the defendant's good and
peaceful character directly related to whether he would sexually
assault a young girl, and was therefore admissible under HRE Rule
404(a)(1). Id. (citing State v. Faafiti, 54 Haw. 637, 513 P.2d
697 (1973)).



     6/
          HRE Rule 404(a)(1) provides:
          (a) Character evidence generally. Evidence of a person's
          character or a trait of a person's character is not
          admissible for the purpose of proving action in conformity
          therewith on a particular occasion, except:
                (1)      Character of accused. Evidence of a pertinent
                         trait of character of an accused offered by an
                         accused, or by the prosecution to rebut the
                         same[.]
     7/
          HRE Rule 405 provides, in relevant part:

          (a) Reputation or opinion. In all cases in which evidence
          of character or a trait of character of a person is
          admissible, proof may be made by testimony as to reputation
          or by testimony in the form of an opinion. On
          cross-examination, inquiry is allowable into relevant
          specific instances of conduct.

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          The State points out that in Iosefa, the applicable
sexual assault charges required the prosecution to prove that the
defendant "knowingly subject[ed] another person to an act of
sexual penetration" or "to sexual contact" "by strong
compulsion." Id. at 184, 880 P.2d at 1231 (emphasis added).
Evidence of the defendant's peaceful and non-violent character
was therefore relevant to whether he acted with "strong
compulsion." In contrast, the State argues, Parras was charged
with "strict liability sexual assaults" of the CW based on her
age; thus, "strong compulsion" or physical force was not an
element of the charged offenses. According to the State,
testimony that Parras was a peaceful, non-violent person was
therefore not admissible as evidence of a "pertinent trait of
character" under HRE Rule 404(a)(1).
          The State is correct that evidence of physical force
was not required to prove the charged offenses here.
Nevertheless, as part of its theory of the case, the State
presented evidence that Parras used physical force in committing
the charged offenses. The State used this evidence to bolster
the CW's credibility, arguing to the jury that the CW was
believable based in part on her demeanor and manner while
testifying that Parras had forced himself on her, she had told
him "no," and she had tried unsuccessfully to fight him off.
Moreover, the State used the evidence of force to argue to the
jury that Parras knowingly engaged in the charged conduct, which
was an element of each of the charged offenses. For example, in
her closing, the DPA argued as to Count 2: "Defendant knew what
he was doing because she told him to stop, and he didn't."
Similarly, the DPA argued as to Count 3: "And we know that the
defendant did this knowingly because she was trying to scream.
She was trying to get him off of her. She was trying to fight
him." Thus, while the State was not required to prove that
Parras used force in committing the charged offenses, the State's
theory of the case depended on his use of force. Under these
circumstances, testimony by CA that Parras was a peaceful, non-
violent person would have been evidence of a "pertinent trait of


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character" under HRE Rule 404(a)(1).8/ The Circuit Court
therefore erred in concluding that such evidence was irrelevant.
          Because the Circuit Court ruled on relevance grounds,
it does not appear that the court evaluated whether the probative
value of the excluded character evidence was "substantially
outweighed by the danger of unfair prejudice, confusion of the
issues, or misleading the jury, or by considerations of undue
delay, waste of time, or needless presentation of cumulative
evidence." HRE Rule 403. Based on this record, we cannot
conclude, as the State argues, that the evidence was excludable
on any of these bases as a matter of law. On remand, if the case
is retried and Parras again offers CA's opinion testimony that he
is a peaceful, non-violent person, the Circuit Court will have to
weigh the potential prejudicial effects of the testimony against
its probative value under HRE Rule 403.
          Furthermore, based on the record as a whole, we cannot
conclude that the Circuit Court's error was harmless beyond a
reasonable doubt. See State v. Haili, 103 Hawai#i 89, 100, 79
P.3d 1263, 1274 (2003). The only evidence available regarding
the alleged sexual assaults was the conflicting testimony of the
only two direct witnesses, the CW and Parras. As a result, the
respective credibility of the CW and Parras was of paramount
importance, and the trial was largely a credibility contest
between these two witnesses. In this context, CA's testimony
that Parras was a peaceful, non-violent person — an opinion based
on her several-year relationship with him — could conceivably
have boosted his credibility in the eyes of the jury. See State
v. Rivera, 62 Haw. 120, 126, 612 P.2d 526, 531 (1980) ("An
accused has the right to give evidence of personal character
traits associated with the basic nature of the offense with which
he is charged as circumstantial evidence of his innocence, and
evidence of those traits to support his credibility as a
witness." (internal citations omitted)).


      8/
            The Circuit Court did not find, and the State does not argue, that
CA was not "sufficiently acquainted" with Parras to be competent to opine as
to the character traits at issue. See Faafiti, 54 Haw. at 644, 513 P.3d at
702.

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          The State argues that the exclusion of this evidence
was harmless, because other evidence of Parras's character was
admitted. Specifically, CA was allowed to testify that Parras
was never "aggressive" with her. Similarly, Parras's wife, JP,
testified that Parras was "peaceful" and not "sexually
aggressive."9/ Given this other testimony by CA and JP, the
State contends that the precluded testimony by CA was cumulative.
          We conclude otherwise for two reasons. First, evidence
that Parras was not "aggressive" with CA or "sexually aggressive"
with JP was not admitted for the purpose of establishing his
character for peacefulness and non-violence. Indeed, the Circuit
Court precluded CA from testifying even as to whether Parras was
ever "violent" with her. Under HRE Rule 404(a)(1), Parras was
entitled to offer evidence that he was a peaceful and non-violent
person — a pertinent trait of good character — which may have
carried greater weight with the jury than narrower testimony
denying "aggressive" past conduct against a particular witness.
See Commentary to HRE Rule 404. In short, the evidence admitted
regarding Parras's character was materially incomplete.
          Second, the Circuit Court improperly undermined the
effectiveness of any evidence of Parras's character for
peacefulness and non-violence by stating in the jury's presence
during CA's testimony, "I don't believe peaceful or nonviolent
[sic] is relevant to the issues in this case." We cannot
conclude that CA's testimony that Parras was a peaceful, non-
violent person would have been cumulative, where the only other
evidence that Parras was "peaceful" was offered through the
testimony of his wife — the day after the Circuit Court made this
prejudicial statement. Similarly, we cannot conclude that the
Circuit Court's statement did not diminish in the eyes of the
jury the other admitted testimony regarding Parras's character.
          Accordingly, we conclude that the Circuit Court erred
in precluding CA from testifying that Parras was a "peaceful,
non-violent person," and we cannot say that the error was


      9/
            JP also testified that Parras never forced her "to have sexual
contact with . . . him."

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harmless beyond a reasonable doubt. Given our conclusion, we do
not reach Parras's second issue on appeal.

                           III. CONCLUSION

          For these reasons, we vacate the Judgment of Conviction
and Sentence, entered on February 6, 2019, by the Circuit Court
of the First Circuit. The case is remanded to the Circuit Court
for further proceedings.

          DATED:   Honolulu, Hawai#i, June 30, 2020.



On the briefs:                        /s/ Katherine G. Leonard
                                      Associate Judge
William H. Jameson, Jr.,
Deputy Public Defender,
for Defendant-Appellant.              /s/ Clyde J. Wadsworth
                                      Associate Judge
Stephen K. Tsushima,
Deputy Prosecuting Attorney,
City & County of Honolulu,
for Plaintiff-Appellee.




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