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                                                                 Electronically Filed
                                                                 Supreme Court
                                                                 SCWC-29550
                                                                 14-FEB-2014
                                                                 08:29 AM




              IN THE SUPREME COURT OF THE STATE OF HAWAI#I

                               —--oOo---
    _______________________________________________________________

            STATE OF HAWAI#I, Respondent/Plaintiff-Appellee,

                                       vs.

             ENRICO CALARA, Petitioner/Defendant-Appellant.
    _______________________________________________________________

                                   SCWC-29550

            CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
                   (ICA NO. 29550; CR. NO. 08-1-0977)

                              FEBRUARY 14, 2014

       ACOBA, McKENNA, AND POLLACK, JJ.; WITH RECKTENWALD, C.J.,
               DISSENTING, WITH WHOM NAKAYAMA, J., JOINS

                    OPINION OF THE COURT BY McKENNA, J.

I.     Introduction

        In this appeal, Petitioner/Defendant-Appellant Enrico Calara

challenges multiple evidentiary determinations by the Circuit

Court of the First Circuit (“circuit court”).1             Calara was

convicted of sexual assault in the fourth degree, in violation of
1
        The Honorable Reynaldo D. Graulty presided.
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Hawai#i Revised Statutes (“HRS”) § 707-733(1)(a) (1993),2 for

allegedly fondling the breast of the Complaining Witness (“CW”),

his adult niece, while she slept.         On certiorari, Calara presents

five questions:

            1. Whether the ICA gravely erred in holding that Calara’s
            right to present a complete defense was not violated when
            the circuit court precluded him from introducing evidence of
            the complainant’s drug pipe and by cross-examining the
            complain[an]t about her drug use for the purposes of
            attacking her perception and recollection.
            2. Whether the ICA gravely erred in deciding the issue of
            whether the circuit court erred in admitting the police
            detective’s testimony that probable cause was established to
            arrest Calara for sexual assault in the fourth degree under
            the plain error standard of review and in failing to hold
            that the testimony was irrelevant and improper.
            3. Whether the ICA gravely erred in concluding that the
            admission of CW’s statement to [her aunt,] Theresa Nishite
            as an “excited utterance” was harmless beyond a reasonable
            doubt.
            4. Whether the ICA gravely erred in concluding that the
            evidence of Calara’s prior statements uttered in January
            200[7] and February 200[7] to establish his intent were
            relevant.
            5. Whether the ICA gravely erred in holding that the
            circuit court’s failure to provide a limiting instruction at
            the time of CW’s testimony regarding Calara’s alleged prior
            statements and as part of the final charge to the jury was
            not plain error.



      We conclude that the second question presented requires

vacating Calara’s conviction and remanding his case for a new

trial.   We hold that the circuit court abused its discretion by

admitting the testimony of a police detective, a long-time


2
       HRS § 707-733(1)(a) provides, “A person commits the offense of sexual
assault in the fourth degree if: . . . [t]he person knowingly subjects another
person to sexual contact by compulsion or causes another person to have sexual
contact with the actor by compulsion[.]” HRS § 707-700 (1993) defines
“compulsion” as “absence of consent, or a threat, express or implied, that
places a person in fear of public humiliation, property damage, or financial
loss.”


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veteran of the Sex Crimes Detail, that probable cause existed for

arresting Calara.    Such testimony was inadmissible under State v.

Batangan, 71 Haw. 552, 799 P.2d 48 (1990), State v. Morris, 72

Haw. 527, 825 P.2d 1051 (1992), State v. Ryan, 112 Hawai#i 136,

144 P.3d 584 (App. 2006), and State v. Baron, 80 Hawai#i 107, 905

P.2d 613 (1995), because the testifier was imbued with an aura of

expertise due to his experience, and because the testimony

implied that the CW’s version of the events was truthful and

believable, thus invading the province of the jury.           This opinion

briefly addresses the remaining questions presented to aid the

circuit court on retrial.

     With regard to the first question presented, we hold that

the circuit court should have conducted a Hawai#i Rules of

Evidence (“HRE”) Rule 104 hearing to determine whether there was

admissible evidence concerning the CW’s alleged drug use and its

effect upon her perception.      With regard to the fourth question

presented, we hold that the circuit court should have excluded

Calara’s earlier statements that he wanted to “take” the CW

because the statements were, at their core, character evidence

used to show action in conformity therewith, and were not

admissible under an HRE Rule 404(b) exception.          As such, it is

not necessary to reach the fifth question presented, whether a

limiting instruction should have accompanied the admission of the


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statements.      Lastly, because we remand this case for a new trial,

we need not, and do not, reach the third question presented:

whether the ICA gravely erred in holding that the circuit court’s

error in admitting the CW’s statements to her aunt as an excited

utterance was harmless beyond a reasonable doubt.

II.    Background

       On June 23, 2008, Calara was charged by Complaint with

“knowingly subject[ing the CW] to sexual contact by compulsion or

[causing the CW] to have sexual contact with [him] by compulsion,

thereby committing the offense of Sexual Assault in the Fourth

Degree, in violation of Section 707-733(1)(a) of the Hawaii

Revised Statutes.”

       The charges stemmed from an incident in the early morning

hours of March 13, 2007 in which the CW, Calara’s adult niece

temporarily staying with the Calara family, accused Calara of

entering her bedroom at night and fondling her breast without her

consent.     Calara, on the other hand, denied that he sexually

assaulted the CW, testifying that he was in his bedroom all night

when the incident allegedly occurred.

       A.   Pre-Trial Motions in Limine

             1. Drug Pipe

       Relevant to the first question presented, in a Notice of

Intent to Use Evidence, Calara signaled his intent to introduce



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at trial the following “evidence of other crimes, wrongs, or acts

involving” the CW:

          d. When packing up the Complainant’s personal belongings on
          or about March 14, 2007, Mrs. Calara discovered a pipe in
          the room the Complainant had been using. Mrs. Calara called
          HPD to do a test on the pipe. The pipe had a bulb[o]us end
          and smelled “funny.” Previously, this room had only been
          used by [Calara’s] nine-year old daughter.

The State filed its Motion in Limine to exclude evidence of the

CW’s prior bad acts.     The circuit court heard the pre-trial

motions on December 2, 2008 and precluded the admission of the

pipe into evidence, concluding the following:

                I think the evidence is so remote, so tangential and
          so unreliable as to whether or not this is [the CW’s] pipe
          and whether she smoked it on March –- the early morning
          hours of March 13th, that the court should not allow this.
                It’s more prejudicial than probative and it is really
          very –- shall I use the word –- flimsy evidence that right
          now, based on what you’ve presented, that this was her pipe
          and that she used it on or about the date of the alleged
          offense so that it has relevance to the allegations in this
          case.

Defense counsel then requested a HRE Rule 104 hearing to call

Mrs. Calara to testify that she found the pipe within the CW’s

belongings, to call the CW to testify as to whether she used the

drug pipe on March 13, 2007, and, if so, whether drug use

affected her perception of the incident, arguing as follows:

          At the 104 hearing I’d be prepared to present my client’s
          wife as a witness to testify exactly where she found [the
          pipe], in what belongings, because the only person using
          that room for four months was the complainant. No one used
          the room after she left until they packed up her things.
          And it was found in her things. . . . It’s clear [the pipe]
          belonged to her. At -- I think a 104 hearing is at least
          necessary to clarify that she was not under the influence --
          or did not use that item on the date of this incident and
          affecting her perception.



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The circuit court denied the request as follows:

          The court’s ruling is that the 104 hearing is not going to
          be able to establish who used the pipe, when it was used,
          and therefore it has no relevance to the case. And the fact
          that it involves marijuana, or at least -- I don’t know what
          it involves, what kind of drug. We don’t know. Only that
          it smelled funny -- is more prejudicial than probative. I
          don’t know what smelled funny means. . . . And a 104
          hearing is not going to cure [the problem of what substance
          was in the pipe] because the HPD did not do a test on the
          pipe.

          2. Police Testimony Regarding Probable Cause

     Relevant to the second question presented, Calara’s Motion

in Limine also sought to exclude “references by HPD officers, to

the effect that ‘all elements’ were met for an arrest/crime as

irrelevant under HRE 403 and because such legally conclusive

language invades the province of the jury.”

     The circuit court granted Calara’s motion in limine and

further ruled as follows:

                With regard to legally conclusive language as to HPD
          saying all elements of the crime were met, the court is
          going to grant the request. However, the court is going to
          allow the prosecution to ask the question whether or not in
          the police officer’s mind probable cause was met for an
          arrest to be made.
                And the reason for the court’s ruling is to avoid any
          confusion in the jury’s mind as to whether or not the
          standard of conviction is somehow less than proof beyond a
          reasonable doubt, which includes proving all the elements of
          the offense and not the standard for the arrest of any
          individual.

          3. January and February 2007 Statements

     Relevant to the fourth question presented, in a Notice of

Intent to Use Evidence, the State signaled its intent to

introduce at trial the following two statements “pursuant to



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Hawaii Rules of Evidence Rule 404(b), as evidence of [Calara’s]

intent, motive, modus operandi and lack of mistake or accident

. . . [but] not . . . to prove the character of the defendant or

to show [Calara] acted in conformity with these other acts”:

          5. In January 2007 in Hawai‘i, [Calara] made sexual
          advances towards [the CW]. [Calara] said that he just
          wanted to grab and take [the CW].
          6. In February 2007 in Hawai‘i, [Calara] again told [the
          CW] that [Calara] wanted to take her.

Calara filed a Motion in Limine to exclude the January and

February 2007 statements as “unfairly prejudicial under HRE 404

and irrelevant under HRE 403. . . .”

     The circuit court denied Calara’s motion in limine to

exclude the statements, stating the following:

                That the two events in question in January and
          February 2007, two prior events in question, [are] fairly
          close in time to the date of the alleged offense on March
          13, 2007.
                And in the court’s view what it goes to show is the
          state of mind of the defendant at the time. It is apparent
          from these statements that [the CW] became the object of
          [Calara’s] desire, and when you –- sexual desire,
          inappropriate as it was. The fact that she rebuffed him,
          again, I would agree goes to the issue of lack of consent.
                And the intent I think is also demonstrated by the
          proffer that was made, and the court does agree that the
          prejudice –- prejudice to the defense and to the defendant
          is low. It doesn’t mean that he assaulted her prior to the
          events of March 13, 2007, only what his state of mind was,
          what his intent [was].
                I don’t think it’s a question so much of modus
          operandi as much as it is lack of consent, state of mind,
          and the fact that it shows that he had some sexual interest
          perhaps in the complaining witness.




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     B.   Trial

           1.     Testimony of the CW

     Trial commenced on December 3, 2008.         The State called the

CW to testify first.     She testified that she returned to Hawai‘i

from the mainland in December 2006 with her two-and-a-half-year-

old daughter and six-month-old son and stayed with Calara, his

wife Debra, and their three children.        She stayed for three

months in a bedroom formerly occupied by the Calaras’ youngest

child, a nine-year-old girl.

     The CW testified that in January 2007, Calara

“expressed an interest to develop a physical relationship” when

he told her “he wanted to . . . grab and take [her].”            The CW

understood this statement to mean “he wanted to have sex.”             The

CW testified she was not interested because “he was married to my

aunt and [the CW was] not attracted to him.”          She testified that

she told Calara “that wasn’t possible.”         The CW testified that

again in February 2007, Calara told her “[h]e wanted to take

[her],” which she understood to mean “he wanted sex,” and she

again told him she was not interested and “blew him off and

ignored him.”     The CW testified that she did not know whether

Calara was “serious” when he made both the January and February

2007 statements.     She also stated that she liked talking with her

aunt Debra on a daily basis, and if Calara was not serious, she



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did not want to “make a big deal out of it” or hurt Debra’s

feelings.

     The CW testified that during the early morning hours of

March 13, 2007, she was asleep in a bedroom that she shared with

her two children.    She awoke when she “felt something cold on

[her] breast.”    She determined it was Calara’s hand, which was

“massaging” and “manipulating” her bare breast.           The CW testified

that she screamed and Calara “jumped back and           . . . kept saying

I’m sorry” and that he did not “know what [he] was thinking”

three to four times.     After about five to ten minutes of standing

in the room and apologizing, Calara left the room.           The CW

testified she stayed up all night, in shock, and got out of bed

later that morning at 6:00 a.m. to prepare for an 8:00 a.m.

meeting with a First to Work counselor.         The CW stated that she

felt “very upset and betrayed and violated.”

     Calara and Debra drove the CW to her First to Work

appointment.   The CW did not recall confronting either of them

with what had happened earlier that morning.          The First to Work

counselor was the first person to whom the CW disclosed what had

happened.   The CW then called her other aunt, Theresa, to pick

her up from the First to Work appointment. She then disclosed the

incident to Theresa.     The CW also disclosed to Debra what had

happened and was upset that Debra did not believe her.            After


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this conversation, the CW gave a statement to Honolulu Police

Department (“HPD”) Officer Enrico Domingo, and met with HPD

Detective Fred Denault, with whom she identified Calara from a

photographic line-up.     The CW and her children then moved to

Theresa’s house.

          2.      Testimony of Theresa Nishite

     The State then called Theresa Nishite (Debra’s sister and

the CW’s aunt).    Theresa testified that she picked the CW up from

her First to Work appointment at around 11:00 a.m. or 12:00 p.m.,

and that the CW was “crying the whole time,” “obviously very

distraught,” and “very upset.”       When asked by the State what the

CW told Theresa, defense counsel objected on the ground of

hearsay, and the State countered that the statement to be

elicited was an excited utterance.        The court sustained the

objection as “needing more foundation.”         Theresa then testified

that the CW’s face was “all red and she had tears coming down her

face” and was “gasping” and “having hard time talking” because

she had been crying and “was in some kind of trouble.”            The

circuit court decided to admit the statement as an excited

utterance, reasoning as follows:

                [I]t seems to me that (unintelligible) of the
          startling event or incident and that this was the first
          opportunity that [the CW] had to tell somebody about it.
          She did not discuss it with anybody else from the time that
          the incident allegedly occurred of 2:30 in the morning.
                She testified that she –- previously testified that
          she woke with the intention of taking the bus but that she



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          accepted the offer to drive her to the DHS office from the
          Calaras, and it was at that particular point that she saw
          her Aunt Theresa that she began to engage in this emotional
          outburst.
                And the court does believe that the sufficient
          foundation has been laid and that she made these utterances
          while still under the stress of the excitement caused by the
          event or condition.

The “excited utterance” eventually elicited from Theresa was the

following:

          (Unintelligible) said that she went to sleep and that
          [Calara] had come into her bedroom and had touched her under
          her shirt and her kids were in the room and (unintelligible)
          while she was talking she was crying so she kind of
          (unintelligible) to kind of continue on but to the gist of
          it she just had mentioned that [Calara] had touched her
          while she was (unintelligible) –- when she was sleeping.

          3.   Testimony of Officer Enrico Domingo

     The State then called HPD Officer Enrico Domingo, who

testified that the CW made a walk-in complaint, made a statement,

and identified Calara as the person who touched her.

          4.    Testimony of Detective Fred Denault

     The State then called Detective Fred Denault, who testified

that he interviewed the CW and showed her a photographic line-up,

from which she picked out Calara as the person who touched her.

Then the following exchange occurred with regard to “probable

cause” for arresting Calara:

          Q [The State]: So after you conducted the lineup, did you
          have probable cause to enri –- arrest Enrico Calara for
          misdemeanor sexual assault?
          A [Denault]: Yes.
          Q: And why is that?
          A: Well, based on the --
          [Defense counsel]: Objection, Your Honor. Um, lack of
          foundation and irrelevant.
          The court: I’ll overrule the objection. You may proceed.



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          Q [The State]: So after you conducted the photo lineup, did
          you have probable cause to arrest Enrico Calara for
          misdemeanor sexual assault?
          A: Yes.
          Q: And why?
          A: Based on the complaint written by the complaining
          witness which included the offenses of sex assault in the
          fourth degree which involve sexual contact to another person
          without consent, and I affirmed her statement with her that
          day while conducting the photographic lineup, and she
          positively identified the suspect as Enrico Calara via
          photograph, and that then his identity was then confirmed
          regarding the possible suspect involved in this case there
          was probable cause established.
          Q: Thank you.
                And when you say you affirmed her statement, was that
          the written statement that she had given Officer Domingo?
          A: Yes. I brought the report with me and then I had her
          review the statement to confirm that what’s –- what she had
          written in that was the events that she was alleging.

The State then rested.

          5.    Testimony of Debra Calara

     The defense called as its first witness Debra Calara,

Calara’s wife, who testified that she and her teenage son were

both working during the early morning hours of March 13, 2007 and

were not home.

          6.    Testimony of Kristy Calara

     The defense called as its second witness Calara’s eighteen-

year-old daughter, Kristy Calara.        She testified that the night

of the alleged incident, she had gone to her room around 9:00

p.m. and was still there and awake during the early morning hours

of March 13, 2007.    Her bedroom was diagonally across from the

CW’s bedroom.    She testified that she, Calara, the Calaras’ nine-

year-old daughter, and the CW and her children were home, but



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Debra and the Calaras’ teenage son were at work.           She testified

that she did not hear Calara’s or the CW’s doors open or the CW

scream at around 2:30 or 2:45 in the morning.

           7.   Testimony of Calara

     The defense called Calara to testify last.           Calara denied

looking the CW up and down and stating to her that he wanted to

“take her” in January and February 2007.         He also testified that

he had been in his bedroom from 9:00 p.m. on March 12, 2007 to

6:00 a.m. the following morning.         He testified that he stayed in

his bedroom all night and denied touching the CW’s breast.

     The jury returned a guilty verdict.         Calara timely appealed.

     C.   Appeal

     On appeal, Calara raised the following points of error,

which are similar to the questions presented on certiorari:

           1. The circuit court erred by precluding the defense from
           introducing evidence of [the CW’s] pipe used to ingest drugs
           and from cross-examining her as to her drug use to attack
           her perception and recollection.
           2. The circuit court erred in admitting Detective Denault’s
           testimony that probable cause was established to arrest
           Enrico Calara for sexual assault in the fourth degree.
           3. The circuit court erred in admitting [the CW’s]
           statement to Theresa Nishite as an “excited utterance.”
           4. The circuit court erred in admitting evidence of Enrico
           Calara’s prior statements uttered in January 200[7] and
           February 200[7] to establish his intent.
           5. The circuit court plainly erred in failing to provide a
           limiting instruction at the time of [the CW’s] testimony
           regarding Enrico Calara’s alleged prior statements and as
           part of the final charge to the jury.

     The ICA concluded that Calara’s appeal was “without merit”

and affirmed his judgment of conviction and probation sentence.


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State v. Calara, No. 29550 (App. Feb. 14, 2013)(SDO) at 2, 7.               As

to Calara’s first point of error, the ICA concluded that the

circuit court properly ruled that “the evidence is so remote, so

tangential and so unreliable” as to whether the pipe belonged to

the CW and as to whether she smoked it around the time of the

incident that it was properly excluded and was more prejudicial

than probative.    Calara, SDO at 3.      Citing State v. Sabog, 108

Hawai#i 102, 109-11, 117 P.3d 834, 841-43 (App. 2005), the ICA

further held, “[T]he circuit court did not foreclose Calara from

cross-examining CW regarding possible drug use on the day of the

event.”   Id.   Under Sabog, reasoned the ICA, “Calara was entitled

to cross-examine CW as to whether any drug use affected her

perception and recollection of the incident.”          Id.

     As to Calara’s second point of error, the ICA stated,

“Calara did not object to this testimony at trial,” and “Calara

has not demonstrated that his substantial rights were affected by

Denault’s testimony.”     Calara, SDO at 3-4.      The ICA then

distinguished three cases cited by Calara, Batangan, 71 Haw. 552,

799 P.2d 48; Morris, 72 Haw. 527, 825 P.2d 1051; and Ryan, 112

Hawai#i 136, 144 P.3d 584, from the instant case on the basis

that “all involved witnesses offering opinions on victim-

complainants’ credibility.”      Calara, SDO at 4 (footnote omitted).




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The ICA further noted, “Denault’s testimony, on the other hand,

explained the events that led to Calara’s arrest.”           Id.

     As to Calara’s third point of error, the ICA agreed with

Calara that the circuit court should not have admitted Theresa’s

testimony about what the CW told her of the incident as an

excited utterance, because the CW’s statements “were too remote

from the alleged sexual assault[,]” “neither spontaneous nor

impulsive[,]” and “the result of reflection.”          Calara, SDO at 5.

Nevertheless, the ICA held that the circuit court’s error “was

harmless beyond a reasonable doubt because it was cumulative of

CW’s and Denault’s testimony at trial.”         Id. (citation omitted).

     As to Calara’s fourth point of error, the ICA held that

Calara’s January and February 2007 statements were admissible as

“relevant to understanding [Calara’s] state of mind, as well as

CW’s lack of consent,” and that their probative value was not

substantially outweighed by danger of unfair prejudice,

confusion, or misleading the jury.        Calara, SDO at 6.

     As to Calara’s fifth point of error, the ICA cited HRE Rule

105 to support its conclusion that Calara should have requested a

limiting instruction.     Calara, SDO at 7.      The ICA also held that

“Calara did not demonstrate the circuit court’s failure to sua

sponte provide a limiting instruction regarding CW’s testimony

impair[ed] his substantial rights.”        Id. (citation omitted).


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III.    Discussion

       A.   Police Testimony Regarding Probable Cause

       As it forms the basis for our remand, Calara’s second

question presented is addressed first.           Calara’s second question

presented is

             2. Whether the ICA gravely erred in deciding the issue of
             whether the circuit court erred in admitting the police
             detective’s testimony that probable cause was established to
             arrest Calara for sexual assault in the fourth degree under
             the plain error standard of review and in failing to hold
             that the testimony was irrelevant and improper.

As a preliminary matter, defense counsel did object to Denault’s

probable cause testimony, as the following transcript excerpt

demonstrates:

             Q [The State]: So after you conducted the lineup, did you
             have probable cause to enri – arrest Enrico Calara for
             misdemeanor sexual assault?
             A [Denault]: Yes.
             Q: And why is that?
             A: Well, based on the --
             [Defense counsel]: Objection, Your Honor. Um, lack of
             foundation and irrelevant.
             The court: I’ll overrule the objection. You may proceed.
             Q [The State]: So after you conducted the photo lineup, did
             you have probable cause to arrest Enrico Calara for
             misdemeanor sexual assault?
             A: Yes.

The ICA should not have reviewed the admissibility of Denault’s

probable cause testimony under the plain error standard.3
3
      Even if it could be said that defense counsel’s objection did not
properly preserve the error (i,e., because the basis for the objection
differed from the point of error raised on appeal), under a plain error
standard of review, Denault’s probable cause testimony nevertheless affected
Calara’s substantial rights. Ryan, 112 Hawai‘i at 141, 144 P.3d at 589 (“We
also conclude that the error in permitting the officers to testify about the
CW’s credibility in accusing [the defendant] affected [the defendant’s]
substantial rights.”) The Ryan line of cases is discussed in greater detail
further in this section.




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     Further, the ICA did not adequately distinguish Batangan,

Morris, and Ryan from the instant case.         The ICA stated only that

those cases “all involved witnesses offering opinions on victim-

complainants’ credibility.”      Calara, SDO at 4.      That distinction

is not entirely true.     In those cases, the expert witnesses (or

those witnesses with an aura of expertise) did not directly

“offer[] opinions” about a victim-complainant’s credibility, yet

their testimony had that effect.         Those cases are discussed in

greater detail, next.

     In Batangan, 71 Haw. at 555, 799 P.2d at 50, an expert

witness (a clinical psychologist with a subspecialty in the

treatment of sexually abused children) testified that he

interviewed the complainant (a very young child) and explained

“how he evaluates whether a child is telling the truth about

being sexually assaulted.”      The expert then “implicitly testified

that Complainant was believable and that she has been abused by

Defendant.” Id. (emphasis added).         Even though the expert witness

“did not explicitly say that Complainant was ‘truthful’ or

‘believable,’” we held, “there is no doubt in our minds that the

jury was left with a clear indication of his conclusion that

Complainant was truthful and believable.”         71 Haw. at 563, 799

P.2d at 54.




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       In Morris, 72 Haw. at 529, 825 P.2d at 1052, an expert

witness, who “had no physical evidence [of chronic sexual abuse]

whatsoever,” opined that the child complainant was chronically

sexually abused.       This court held his opinion “had to have been

based on the child’s statements to others.            This is one of those

cases like Batangan where, although the expert witness does not

say that the child is truthful, or that he believes the child,

the clear implication of his testimony is just that, and the

admission of that testimony in this case was reversible error.”

Id. (emphasis added).

       In Ryan, this court extended Batangan’s expert witness

holding to situations in which non-experts (here, responding

police officers) implicitly concluded a complaining witness was

credible.      112 Hawai‘i at 141, 144 P.3d at 589 (“The Hawai‘i

Supreme Court’s reasons for condemning the expert’s testimony in

Batangan applies to the officers’ testimony in Ryan’s case.”)

This was because “[t]he emphasis on the officers’ training and

experience in domestic violence cases served to give the officers

an aura of being experts in evaluating the truthfulness of

statements made by an alleged victim in domestic violence cases.”

Id.    Also, in Ryan (like in Batangan and Morris), the responding

officers gave no direct opinion supporting the complainant’s

credibility, yet this court held that their testimony had that


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effect.   The deputy prosecutor “did not directly ask [the

responding officers] for their opinion on whether the CW had told

them the truth.”    Id.   Rather, the “questions posed to the

officers were couched in terms of whether they had any reason or

evidence that would cause them not to believe the CW’s

allegations against [the defendant].”        Id.   This court held,

“[G]iven the DPA’s repeated questioning on this subject and the

context in which the questions were asked, the only purpose

served by the questioning was to inject into the trial the

officers’ opinion that the CW’s allegations were true. . . .

Viewed in context, the effect of the officers’ testimony was the

same as a direct expression of their opinion that the CW had told

them the truth.”    Id. (emphasis added).

     Similarly, in Baron, 80 Haw. at 116, 905 P.2d at 622, we

concluded that the screening prosecutor’s testimony that she

decided to bring charges against the defendant meant the

screening prosecutor “impliedly found the complainant’s

allegations to be truthful.”       We noted that, in a case concerning

the credibility of the complainant, “the testimony of the

[screening prosecutor] unfairly influenced the jury.”            Id.

     In short, Hawai‘i appellate courts have held that such

implicit conclusions about a complaining witness’s testimony

should be precluded.      See Batangan, 71 Haw. at 558, 799 P.2d at


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52 (“[C]onclusory opinions that abuse did occur and that the

child victim’s report of abuse is truthful and believable is of

no assistance to the jury, and therefore, should not be admitted.

Such testimony is precluded by HRE Rule 702.”)(emphasis added);

Ryan, 112 Hawai‘i at 141, 144 P.3d at 589 (“Accordingly, under

the circumstances of this case, we hold that the family court

abused its discretion in permitting [the responding officers’]

testimony.”); Baron, 80 Haw. at 116, 905 P.2d at 622 (“[W]e hold

that the trial court abused its discretion by not precluding the

testimony of [the screening prosecutor].”).

     Preclusion is necessary because this type of testimony

invades the province of the jury by usurping its power to make

credibility determinations.      See Batangan, 71 Haw. at 559, 799

P.2d at 52 (“The expert’s use of words such as ‘truthful’ and

‘believable’ is not talismanic.       But where the effect of the

expert’s opinion is ‘the same as directly opining on the

truthfulness of the complaining witness,’ such testimony invades

the province of the jury.”)(citation omitted; emphasis added);

Ryan, 112 Hawai‘i at 141, 144 P.3d at 589 (“We conclude that the

officers’ testimony, which was tantamount to an expression of

their opinion that the CW had been truthful in accusing [the

defendant], impermissibly invaded the province of the

jury.”)(citation omitted; emphasis added).


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     Admission of this type of testimony provides grounds for

vacating a conviction.     See Morris, 72 Haw. at 529, 825 P.2d at

1052 (“[T]he admission of [implicit expert testimony that the

complainant was truthful or believable] in this case was

reversible error. . . . Accordingly, we vacate the judgment below

and remand the case for a new trial.”)(emphases added); Baron, 80

Haw. at 116, 905 P.2d at 622 (“The prejudice to Appellant is

patently clear and warrants a reversal in this case.            We

therefore vacate the guilty verdicts and remand the case to the

circuit court for a new trial.”)(emphases added).

     In the instant appeal, like in Batangan, Morris, Ryan, and

Baron, Denault did not directly testify that he found the CW

credible, but his testimony had that effect.          He testified to the

following:

          Q [BY THE STATE]: So after you conducted the photo lineup,
          did you have probable cause to arrest Enrico Calara for
          misdemeanor sexual assault?
          A [BY DENAULT]: Yes.
          Q: And why?
          A: Based on the complaint written by the complaining
          witness which included the offenses of sex assault in the
          fourth degree which involve sexual contact to another person
          without consent, and I affirmed her statement with her that
          day while conducting the photographic lineup, and she
          positively identified the suspect as Enrico Calara via
          photograph, and that then his identity was then confirmed
          regarding the possible suspect involved in this case there
          was probable cause established.
          Q: Thank you.
                And when you say you affirmed her statement, was that
          the written statement that she had given Officer Domingo?
          A: Yes. I brought the report with me and then I had her
          review the statement to confirm that what’s – what she had
          written in that was the events that she was alleging.




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Denault, a 26-year veteran of HPD assigned to the Sex Crimes

Detail, was imbued with “an aura of expertise” like the

responding officers in Ryan.       Thus, when he testified that his

decision to arrest Calara was based on his assessment that the

CW’s allegations provided him with probable cause, such testimony

“was tantamount to an expression of [his] opinion that the CW had

been truthful in accusing” Calara.        Ryan, 112 Hawai‘i at 141, 144

P.3d at 589.

     Further, the circuit court’s contemplated cure for admitting

such testimony does not appear on the record and would not change

this result.   At the hearing on the motions in limine, the

circuit court explained that it would allow the testimony under

the following circumstances:

                 With regard to legally conclusive language as to HPD
           saying all elements of the crime were met, the court is
           going to grant the [defense’s] request [to exclude legally
           conclusive language]. However, the court is going to allow
           the prosecution to ask the question whether or not in the
           police officer’s mind probable cause was met for an arrest
           to be made.
                 And the reason for the court’s ruling is to avoid any
           confusion in the jury’s mind as to whether or not the
           standard of conviction is somehow less than proof beyond a
           reasonable doubt, which includes proving all the elements of
           the offense and not the standard for the arrest of any
           individual.

The jury was not provided with any instruction regarding the

difference between probable cause and proof beyond a reasonable

doubt.   Therefore, as Calara argued, in addition to Denault’s

testimony invading the province of the jury by bolstering the



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CW’s credibility, there was also a possibility that the jury

overly weighted the probable cause testimony in its reasonable

doubt determination, and this may have contributed to Calara’s

conviction.

     The ICA also concluded that Denault’s testimony merely

“explained the events that led to Calara’s arrest.”           Calara, SDO

at 4.   However, this court previously rejected a similar argument

in Ryan.   In that case, the State argued that the responding

officers’ opinions “were directed more toward the completeness of

the police investigation.”      112 Hawai‘i at 141, 144 P.3d at 589.

We disagreed, because “[t]he defense did not attack the actions

of [the responding officers] or the thoroughness of the HPD’s

investigation.”    Id.   Similarly, in this case, Calara never

attacked the probable cause determination.          We concluded in Ryan,

“The context in which the officers were questioned convinces us

that the officers’ testimony was directed at whether they

believed the CW was truthful in her allegations and not at the

thoroughness of their investigation.”         Id.   So, too, was

Denault’s testimony that the CW’s statement provided him with

probable cause to arrest Calara:         his statement implied he

believed the CW’s allegations.

     In short, Denault’s probable cause testimony should have

been precluded under Batangan, Morris, Ryan, and Baron.            The


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admission of the probable cause testimony was an abuse of

discretion.   Therefore, we vacate the ICA’s judgment on appeal,

vacate the circuit court’s judgment of conviction and probation

sentence, and remand Calara’s case to the circuit court for

retrial.

     We address the remaining issues raised by Calara to the

extent necessary to resolve this appeal and to assist the circuit

court on retrial.

     B.    Preclusion of Evidence of Drug Pipe

     On certiorari, Calara’s first question presented is

           1. Whether the ICA gravely erred in holding that Calara’s
           right to present a complete defense was not violated when
           the circuit court precluded him from introducing evidence of
           the complainant’s drug pipe and by cross-examining the
           complain[an]t about her drug use for the purposes of
           attacking her perception and recollection.

In his Notice of Intent to Use Evidence, Calara signaled his

intent to introduce at trial as “evidence of other crimes,

wrongs, or acts involving” the CW a pipe found in the room

occupied by the CW by Mrs. Calara.        His counsel requested a HRE

Rule 104 hearing as follows:

           At the 104 hearing I’d be prepared to present my client’s
           wife as a witness to testify exactly where she found [the
           pipe], in what belongings, because the only person using
           that room for four months was the complainant. No one used
           the room after she left until they packed up her things.
           And it was found in her things. . . . It’s clear [the pipe]
           belonged to her. At -- I think a 104 hearing is at least
           necessary to clarify that she was not under the influence --
           or did not use that item on the date of this incident and
           affecting her perception.




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The circuit court denied the request as follows:

          The court’s ruling is that the 104 hearing is not going to
          be able to establish who used the pipe, when it was used,
          and therefore it has no relevance to the case. And the fact
          that it involves marijuana, or at least -- I don’t know what
          it involves, what kind of drug. We don’t know. Only that
          it smelled funny -- is more prejudicial than probative. I
          don’t know what smelled funny means. . . . And a 104
          hearing is not going to cure [the problem of what substance
          was in the pipe] because the HPD did not do a test on the
          pipe.

     The circuit court erred in deciding that a HRE Rule 104

hearing was not necessary.      HRE Rule 104 provides, in relevant

part:

          Preliminary questions.
          (a) Questions of admissibility generally. Preliminary
          questions concerning the qualification of a person to be a
          witness, the existence of a privilege, or the admissibility
          of evidence shall be determined by the court, subject to the
          provisions of subsection (b). In making its determination
          the court is not bound by the rules of evidence except those
          with respect to privileges.
          (b) Relevancy conditioned on fact. When the relevancy of
          evidence depends upon the fulfillment of a condition of
          fact, the court shall admit it upon, or subject to, the
          introduction of evidence sufficient to support a finding of
          the fulfillment of the condition. . . .

The circuit court focused solely on the pipe evidence in denying

the HRE Rule 104 hearing, finding the evidence inadmissible as

irrelevant because the pipe had not been tested.           The effect of

the denial of the HRE Rule 104 hearing was broader, however, in

that it precluded any evidence of drug use as potentially

relevant to the CW’s perception of the alleged event.            As such,

the circuit court’s decision was inconsistent with Sabog, 108

Hawai#i at 111, 117 P.3d at 843, which held a defendant is




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entitled to cross-examine a witness concerning the witness’s

“drug use and addiction at or near the time of the incident to

the extent that it affected [the witness’s] perception or

recollection of the alleged event. . . .”         A HRE Rule 104 hearing

would have allowed the circuit court to determine whether there

was any evidence relevant to the issue of the CW’s purported drug

use as affecting her perception.

     C.   Excited Utterance

     On certiorari, Calara’s third question presented is

           3. Whether the ICA gravely erred in concluding that the
           admission of CW’s statement to Theresa Nishite as an
           “excited utterance” was harmless beyond a reasonable doubt.

We agree with the ICA that the CW’s statement to Theresa Nishite

was not an excited utterance and should not have been admitted

into evidence.    Calara, SDO at 5.      As we are remanding this case

for retrial based on the circuit court’s admission of Denault’s

probable cause testimony, we need not, and do not, reach the

issue of whether the ICA gravely erred in holding that the

admission of the statement as an excited utterance was harmless

beyond a reasonable doubt.

     D.   January and February 2007 Statements

     On certiorari, Calara’s fourth question presented is

           4. Whether the ICA gravely erred in concluding that the
           evidence of Calara’s prior statements uttered in January
           200[7] and February 200[7] to establish his intent were
           relevant.




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The two prior statements Calara uttered in January and February

2007 were that he wanted to “take” the CW, statements which the

CW believed indicated Calara’s sexual interest in her.            Via

motion in limine, Calara sought to have the statements excluded

as “unfairly prejudicial under HRE 404 and irrelevant under HRE

403. . . .”   The circuit court denied the motion in limine as

follows:

                 That the two events in question in January and
           February 2007, two prior events in question, [are] fairly
           close in time to the date of the alleged offense on March
           13, 2007.
                 And in the court’s view what it goes to show is the
           state of mind of the defendant at the time. It is apparent
           from these statements that [the CW] became the object of
           [Calara’s] desire, and when you –- sexual desire,
           inappropriate as it was. The fact that she rebuffed him,
           again, I would agree goes to the issue of lack of consent.
                 And the intent I think is also demonstrated by the
           proffer that was made, and the court does agree that the
           prejudice –- prejudice to the defense and to the defendant
           is low. It doesn’t mean that he assaulted her prior to the
           events of March 13, 2007, only what his state of mind was,
           what his intent [was].
                 I don’t think it’s a question so much of modus
           operandi as much as it is lack of consent, state of mind,
           and the fact that it shows that he had some sexual interest
           perhaps in the complaining witness.

In short, the circuit court admitted the statements under HRE

Rule 404(b) for the purpose of showing Calara’s state of mind or

intent, and the CW’s lack of consent.        None of these purposes

supported the admission of the statements under HRE Rule 404(b),

however.   Instead, the statements, at their core, tended to prove

the character of Calara in order to show action in conformity

therewith, and should have been excluded.



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     HRE Rule 404(b) states, in relevant part

           Other crimes, wrongs, or acts. Evidence of other crimes,
           wrongs, or acts is not admissible to prove the character of
           a person in order to show action in conformity therewith.
           It may, however, be admissible where such evidence is
           probative of another fact that is of consequence to the
           determination of the action, such as proof of motive,
           opportunity, intent, preparation, plan, knowledge, identity,
           modus operandi, or absence of mistake or accident. . . .

“[W]hen evidence of other crimes, wrongs, and acts is offered by

the prosecution, the problem for the trial court is one ‘of

classifying and then balancing[, if necessary]. . . the

prejudicial impact of the evidence [with] its probative worth.”

State v. Castro, 69 Haw. 633, 644, 756 P.2d 1033, 1041

(1988)(first set of brackets in original; second set of brackets

added).   “If its purpose is only ‘to show some propensity to

commit the crime at trial, there is no room for ad hoc balancing.

The evidence is then unequivocally inadmissible[.]’”            Id.   See

also Addison M. Bowman, Hawai#i Rules of Evidence Manual (2012-

2013) at 4-49 (“[I]f a fact of consequence other than character

cannot be identified, then the evidence has no legitimate

probative value.”)

     In this case, the statements were not probative of any other

fact that was of consequence to Calara’s case.          Specifically,

they were not probative of Calara’s state of mind or intent, or

the CW’s lack of consent.      Reviewing the record, it is clear that

Calara’s defense was he did not do the act; he testified that he



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remained in his bedroom all night and did not enter the CW’s

bedroom, where she alleged the sexual assault took place.             The

CW’s consent was never at issue.         Therefore, the circuit court

abused its discretion in admitting the January and February 2007

statements to show the CW’s lack of consent.

     The district court also abused its discretion in admitting

the January and February 2007 statements to show Calara’s state

of mind or intent.    Intent is “the state of mind with which an

act is done. . . .”     State v. Torres, 85 Hawai#i 417, 422, 945

P.2d 849, 854 (App. 1997)(citation omitted).          “Because mens rea

is an element of the prosecution’s case-in-chief, in most

criminal cases, the intent inferences of rule 404(b) require

analytical rigor.”    Bowman, Hawai#i Rules of Evidence Manual

(2012-2013) at 4-53.     “Without the necessity that arises when a

mental defense is interposed to a criminal charge, admission of

‘other crimes’ to prove intent is strongly suspect because

intent, although elemental, is subsumed within the charged acts

and typically stands or falls with the proof of them.”            Id.

     In this case, Calara did not put his intent in issue in the

way a defendant arguing that a touching was due to mistake,

accident, or some other innocent explanation would.           Again,

Calara’s defense was that he was not in the CW’s room, so the

touching simply did not occur.       Thus, Calara’s case can be


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distinguished from two factually similar cases in which the

defendant’s prior sexually inappropriate comments were properly

admitted under HRE Rule 404(b) to show intent:          Torres, 85

Hawai#i 417, 945 P.2d 849, and State v. Mars, 116 Hawai#i 125, 170

P.3d 861 (App. 2007).

     In Torres, 85 Hawai#i at 418-19, 945 P.2d at 850-51, the

defendant was convicted of sexual assault in the first degree for

having inserted his finger into his nine-year-old niece’s vagina

while he was bathing her.      On appeal, the defendant claimed that

the circuit court abused its discretion in admitting evidence

regarding four prior bad acts, one of which was evidence that the

defendant told the complainant “to find a place to make love[.]”

85 Hawai#i at 422, 945 P.2d at 854 (brackets in original).            The

ICA concluded that the statement was relevant and probative to

show the defendant’s motive and intent to later sexually assault

the complainant in the bathtub.       Id.   The defendant had testified

at trial that “he ‘had no bad intentions’ when he agreed to bathe

Complainant and wash her vagina.         He also vehemently denied ever

digitally penetrating her vagina.”        Id.   The complainant, on the

other hand, testified that when she and the defendant were alone

at home, the defendant told her to put her leg up in the bath,

inserted his finger in her vagina, at which point, the

Complainant said, “Ouch,” and the defendant told her not to tell


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anybody.   85 Hawai#i at 419-20, 945 P.2d at 851-52.           The ICA

stated, “In this case, it was undisputed that Defendant washed

Complainant’s vagina.     However, there was a dispute regarding who

prompted the bath and what occurred during the bath.

Consequently, evidence of why Defendant bathed Complainant--

i.e., Defendant’s motive, purpose, and intent for washing

Complainant’s vagina-- were undoubtedly relevant to prove a fact

of consequence, that Defendant “knowingly subjected [Complainant]

to sexual penetration[.]”      85 Hawai#i at 422, 945 P.2d at 854

(emphasis in original).

     In Mars, 116 Hawai#i at 128, 170 P.3d at 864, a defendant

was convicted of three counts of sexual assault in the first

degree for having had oral and anal sex with a fifteen-year-old

boy while both were in a bathroom.        On appeal, the defendant

argued that the circuit court abused its discretion in admitting

the following prior statements the defendant made to the fifteen-

year-old boy:   (1) that the boy should “pull up [his] pants and

not show [his] underwear because there were ‘perverts’ in the

area”; (2) that “he should be careful about his underwear because

the intermediate school students ‘liked them’”; (3) that the boy

was “largely hung and a lot of people would like that”; and (4)




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that the boy “had too much hair down there.”          116 Hawai#i at 129,

170 P.3d at 865.

       At trial, the fifteen-year-old boy testified that the

defendant entered the bathroom while the boy was in the Jacuzzi,

indicated that he wanted to have sex with the boy (as the two had

done before), and the boy complied.        116 Hawai#i at 130, 170 P.3d

at 866.    The defendant, on the other hand, testified that he had

the runs and needed to use the nearest bathroom (the one that,

unbeknownst to the defendant, was occupied by the boy at the

time).    116 Hawai#i at 131, 170 P.3d at 867.       The defendant

testified that he entered the unlocked bathroom, sat on the

toilet, then saw the boy’s head peek out of the Jacuzzi.            Id.

The defendant denied sexually assaulting the fifteen-year-old

boy.    Id.   The ICA concluded that the reasoning in Torres was

directly applicable to the defendant’s case.          116 Hawai#i at 141,

170 P.3d at 877.     It held the defendant’s comments were relevant

to show the defendant’s motive, purpose, and intent when he

joined the fifteen-year-old boy in the bathroom when the assaults

took place, and were thus admissible under HRE Rule 404(b).              Id.

        This case is distinguishable from Torres and Mars.          In

Torres and Mars, both defendants denied sexually assaulting the

complaining witnesses, and both defendants offered explanations




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for why they were in the bathroom with the complaining witnesses.

In doing so, they put at issue their motive and intent for being

in the location where the sexual assaults took place.            Therefore,

prior inappropriate sexual statements made by both defendants to

the minor complaining witnesses were admissible under HRE Rule

404(b) as “probative of another fact that is of consequence to

the determination of the action,” i.e., countering the

defendants’ innocent explanations as to why they were alone with

their bathing and vulnerable minor complaining witnesses, and

tending to show that they knowingly touched the complaining

witnesses.

     No similar circumstances exist in this case, where Calara

did not concede that he was in the CW’s bedroom for some innocent

reason when the alleged touching occurred, such that evidence of

the prior statements would be probative of a fact of consequence,

i.e., the state of mind or intent tending to explain his presence

in her bedroom and tending to explain the touching.           Therefore,

the circuit court abused its discretion in admitting the January

and February 2007 statements under HRE Rule 404(b) as bearing on

Calara’s state of mind or intent.

     E.   The Absence of a Limiting Instruction

     On certiorari, Calara’s fifth question presented is

           5. Whether the ICA gravely erred in holding that the
           circuit court’s failure to provide a limiting instruction at



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             the time of CW’s testimony regarding Calara’s alleged prior
             statements and as part of the final charge to the jury was
             not plain error.

Our holding that the January and February 2007 statements should

not have been admitted under HRE Rule 404(b) obviates the need to

reach the issue of whether the circuit court should have issued a

limiting instruction to the jury as to the purposes for which

those statements were to be used.

IV.    Conclusion

       We hold (1) that the circuit court abused its discretion by

admitting the testimony of the police detective that probable

cause existed for arresting Calara because such testimony was

inadmissible under Batangan, 71 Haw. 552, 799 P.2d 48; Morris, 72

Haw. 527, 825 P.2d 1051; Ryan, 112 Hawai#i 136, 144 P.3d 584; and

Baron, 80 Hawai#i 107, 905 P.2d 613; (2) that the circuit court

should have conducted a HRE Rule 104 hearing to determine whether

there was admissible evidence concerning the CW’s alleged drug

use and its effect upon her perception; (3) that the circuit

court should have excluded Calara’s earlier statements that he

wanted to “take” the complaining witness because the statements

were, at their core, character evidence used to show action in

conformity therewith, and were not admissible under an HRE Rule

404(b) exception; as such, (4) it is not necessary to reach the

issue of whether a limiting instruction should have accompanied



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the admission of the statements; and (5) because we remand this

case for a new trial, we need not, and do not, reach the issue of

whether the ICA gravely erred in holding that the circuit court’s

error in admitting the CW’s statements to her aunt as an excited

utterance were harmless beyond a reasonable doubt.           We vacate the

ICA’s Judgment on Appeal, vacate the circuit court’s judgment of

conviction and probation sentence, and remand this case to the

circuit court for retrial.

Jason Z. Say                       /s/ Simeon R. Acoba, Jr.
for petitioner
                                   /s/ Sabrina S. McKenna
Stephen K. Tsushima
for respondent                     /s/ Richard W. Pollack




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