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                                                              Electronically Filed
                                                              Supreme Court
                                                              SCWC-XX-XXXXXXX
                                                              16-JUN-2020
                                                              08:03 AM

           IN THE SUPREME COURT OF THE STATE OF HAWAI‘I

                                ---o0o---



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

                                    vs.

                             KEVIN LORA,
                   Petitioner/Defendant-Appellant.


                            SCWC-XX-XXXXXXX

         CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
            (CAAP-XX-XXXXXXX; CR. NO. 1CPC-XX-XXXXXXX)

                              JUNE 16, 2020

   McKENNA, POLLACK, AND WILSON, JJ., WITH RECKTENWALD, C.J.,
           DISSENTING, WITH WHOM NAKAYAMA, J., JOINS
                OPINION OF THE COURT BY POLLACK, J.

           The defendant in this case was convicted after a jury

trial that turned on the credibility of the complaining

witness’s testimony.     This case raises the issue of whether a

portion of that testimony was properly admitted for the purpose

of bolstering the credibility of the witness’s account of the
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incident.     After careful review of the record, we conclude that

the adduced testimony was not relevant to the witness’s

credibility.     Further, we find that the circuit court’s

erroneous admission of the witness’s testimony was highly

prejudicial to the defense and not harmless beyond a reasonable

doubt.   Additionally, we address the circuit court’s

consideration of the defendant’s request to be sentenced as a

young adult in order to review the Intermediate Court of

Appeals’ interpretation of the relevant statute and to provide

guidance in the event the issue arises on remand.

                           I.      BACKGROUND

                                 A. Trial

            On May 4, 2017, Kevin Lora was indicted in the Circuit

Court of the First Circuit (circuit court) for one count of

sexual assault in the first degree in violation of Hawaiʻi

Revised Statutes (HRS) § 707-730(1)(a)1 and one count of sexual

assault in the third degree in violation of HRS § 707-

732(1)(f).2    The jury trial began on March 19, 2018.3



     1
            HRS § 707-730(1)(a) (2014) provides as follows:

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

                  (a) The person knowingly subjects another person to
                  an act of sexual penetration by strong compulsion[.]
     2
            HRS § 707-732(1)(f) (2014) provides as follows:

                                                              (continued . . .)

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            The Complaining Witness (CW) testified that she came

to Hawai‘i for a vacation on May 11, 2016, with her sister and a

friend, Haley Harlow.        The group stayed at a hotel in Waikīkī

together for the duration of their trip.            On Friday, May 13, the

group “hiked Koko Head” around midday, which made the CW’s legs

and back sore.        The next evening, the group had dinner together

and then decided to go to an establishment called “Top of

Waikiki” to enjoy the view.         While walking there, the group met

a man named “Rob.”        The four proceeded to Top of Waikiki, where

the CW had one glass of wine and one serving of rum.              The group

then attempted to enter a nightclub downstairs, the CW

testified, but she and Harlow were unable to get in because they

were not wearing the proper attire.           Rob remained at the

nightclub and the three women decided to go to “Playbar,” a

different nightclub they had visited earlier in their trip.

            Before they entered Playbar, the CW stated, she and

her sister had “an awkward exchange,” and the CW left the group

and returned to their hotel alone.           Once at her hotel room, she

(. . . continued)

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

            . . . .

                    (f) The person knowingly, by strong compulsion, has
                    sexual contact with another person or causes another
                    person to have sexual contact with the actor.
      3
            The Honorable Rom A. Trader presided.


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changed into a skirt because of the heat.          She received text

messages from Harlow and her sister asking her to return to

Playbar.   She also received a text message from Rob, with whom

she had exchanged numbers at Top of Waikiki.          Rob asked if she

was staying in for the rest of the evening, and the CW responded

that she was but the other two women were at Playbar.            Rob asked

if she would like to go back to Playbar together, and the CW

agreed to do so.    The two met up and walked to Playbar together,

where they rejoined Harlow and the CW’s sister.           The CW believed

that they arrived at Playbar between 9:30 and 10:00 p.m., but

she was not certain.

           Around 11:00 p.m., the CW testified, her sister left

Playbar and returned to the hotel.         Harlow and the CW remained

there together until around 1:30 or 2:00 a.m. when Harlow also

returned to the hotel.      The CW stated that she remained at

Playbar until around 2:30 a.m. at which time she left to return

to her hotel.    She had six servings of alcohol while at Playbar.

She was feeling “a little dizzy” as she left but attributed her

physical condition to the change in environment between the

nightclub and the street.      The CW said that she was not feeling

drunk at that time.

           Harlow testified that after she left Playbar around

1:30 a.m., she met a man on the street who came up to her and

introduced himself as Dominick.          At trial, Harlow identified

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Lora as the man she met that night.             She stated that Lora walked

her back to her hotel where they exchanged phone numbers.                After

she returned to her hotel room, Harlow testified, the two

conversed for a while through text messages.             Harlow asked if

Lora would come back to her hotel and walk with her to the

water, and Lora agreed to do so.             The two met up, walked to the

beach, and sat on the sand by the water.             They talked for a

while and then started to kiss.             Harlow testified that Lora

wanted to go further, but she told him she was not interested in

doing so.      Lora said that he respected that, and they continued

talking.      Soon after, they were approached by a police officer

who told them the beach was closed.             They then returned to

Harlow’s hotel and parted ways near the lobby.              Harlow stated

that after returning to her room, she exchanged further text

messages with Lora.        Following the text message conversation,

which began at 3:03 a.m. and involved only a few messages,

Harlow fell asleep.

              The CW testified that as she was returning to her

hotel from Playbar, she was approached just outside her hotel by

a man who introduced himself as Dominick.             The CW identified

Lora at trial as the same man.          After briefly engaging in small

talk, Lora asked the CW if she wanted to walk on the beach with

him.     The CW stated that she showed Lora her ring and told him



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she was married and not interested.4            According to the CW, Lora

put his left arm around her back so they were standing close

together and reached across and pushed his right thumb into her

arm very hard.        He then told the CW that they were going for a

walk on the beach.         They began walking toward the beach, the CW

testified, and Lora maintained a tight grip on her arms and

shirt as they walked, which caused the seams of her shirt to

rip.        The CW stated that she became fearful and “felt very

frozen.”       At some point during the walk, the CW stated, Lora

shifted his grip on her and grasped the side of her neck.                As

they neared the beach, the CW testified, she began to physically

struggle against Lora and tried to throw her body weight to the

ground.5       She stayed on her feet, however, and did not fall.

               When they arrived at the beach, she stepped off the

two-foot tall seawall onto the shore to try to create distance

between them.        Lora removed his pants and shoes and followed her

onto the beach.        The CW stated that she was standing with her

back facing the seawall and Lora was in front of her.                The CW

said that Lora then grabbed her hand and placed it on his penis

over his underwear.         At this point, the CW testified, she raised


        4
               The CW testified that she was engaged at the time of her trip.
        5
            The CW testified that on May 15, 2016, she was 5’2” and weighed
around 238 pounds. She described Lora as being barely taller than her and
believed that she outweighed him because he was physically smaller than her.



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her voice and began to yell and plead with him.           Lora asked her,

“So are you going to go down on me now, or should I force you?”

The CW testified that she was pressed against the seawall, which

was digging into her lower back, and Lora was in front of her.

The CW said that she attempted to move away from him and ended

up lying on her back in the sand on the same level as the

seawall.   He held her down by her arms and ripped her shirt in

an attempt to expose her right breast.         The CW stated that while

she was struggling Lora’s saliva got on her chest.           Lora was

pressing down on her arms on the insides of her biceps, the CW

stated, and he was gripping her so tight that she lost feeling

in her hands.    She related that it felt like “he was digging a

knife into my arms”; she was telling him to please stop and that

she did not want to do this.       The CW testified that Lora then

pushed up her skirt and penetrated her vagina with his penis.

The CW stated that she struggled at first and then went limp.

During the struggle, the CW testified, she yelled and called out

hoping that someone might hear her.        The CW also stated that

Lora headbutted her in the forehead during the struggle.             He

eventually stopped, the CW stated, and she believed that he had

ejaculated.   After Lora finished, he gathered his clothes and

sprinted away.

           The CW testified that she immediately left the beach

and made her way back to the street.         She collapsed on the

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ground near a crosswalk and began to cry and call out for help.

A man approached her and asked if she was okay, and she told

him, “No, I’m not okay, I’ve just been raped.”           The man helped

her get to a nearby police station, which was in sight of where

she had collapsed on the ground.

            The man, Larry Macri, testified that he was working at

a restaurant in Waikīkī at that time.         Macri stated that he got

off work sometime after 1:00 a.m. on May 15, 2016.           He had

missed the last bus because he got off work late, so he decided

to wait at a bench in that area until 4:15 a.m. when the buses

would start running again.      While he was sitting at the bench,

Macri saw the CW, who was about fifty feet away, walk from the

beach toward the crosswalk.       The CW was crying and appeared

distraught, so he approached her.        Macri testified that the CW’s

clothes appeared to be intact, and she was wearing pants.             Macri

helped the CW reach the police station and subsequently gave a

written statement to a police officer around 4:25 in the

morning.    Macri stated that from where he was sitting on the

bench, he “absolutely” would have heard any screaming or yelling

coming from the area of the beach that the CW had come from, but

he did not hear screaming or yelling at any time.

            Honolulu Police Department (HPD) Officer Jon Kawana

testified that he was working at the Waikīkī substation on May

15, 2016.    The CW came into the substation around 3:21 a.m.,

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accompanied by Macri.     Officer Kawana took the CW’s statement

and prepared a written report.       In the report, Officer Kawana

observed that the CW was wearing a shirt and black and white

pants.    HPD Officer Leslie Garner was also working at the

Waikīkī substation at that time.         Officer Garner testified that

officers called for an ambulance to treat the CW immediately on-

site based on the statement she gave.         The CW refused to be

treated at first, but she ultimately agreed to be taken to the

hospital.    Officer Garner stated that she took the CW to the

hospital at 4:21 a.m.

            The CW testified that after being taken to the

hospital, she was examined by a male doctor.          She identified

several photographs as being accurate depictions of her at that

time.    The photographs, which were introduced into evidence,

depicted the CW wearing a long tank-top shirt and black and

white pants.    The photographs did not depict any damage to the

CW’s clothes.

            The deputy prosecuting attorney (DPA) asked the CW,

“What was it like to get examined by [a] male doctor?”            Defense

counsel objected on relevancy grounds, and the objection was

overruled.     The CW began to answer, stating as follows: “It was

-- the process of what you go through when you come in like this

is very dehumanizing.     Um, you’re -- you’re standing there in

your ripped clothes and --.”       Defense counsel objected again

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that the testimony was irrelevant and asked to approach.             At the

bench, the DPA argued that what occurred during the exam, her

emotional state, and her ability to relate to the doctor and

give him an accurate medical history were all relevant to the

case.   The court overruled the objection.         The CW proceeded to

answer the question as follows:

                 Um, the process of a rape collection kit is very
           dehumanizing. Um, after experiencing the trauma that I had
           just gone through, I had to stand on a mat and carefully
           remove all of the clothing that I had on, and I could see
           all the sand falling onto this mat.
                 And I had to stand naked in exam room lighting, just
           completely naked, while someone took pictures of me. I was
           given a gown and a sheet, and I waited for the doctor to
           arrive.
                 He explained to me in probably the most compassionate
           way that he can that a lot of this will be violating, and
           he apologized upfront for the process.
                 There were, like, a lot of swabs that were taken from
           parts of my body where I know that his saliva had been.
                 There was a vaginal exam, and it’s not the kind like
           you go to the doctor and have one done. It’s, like, a very
           long time with a man looking at me and taking high def
           pictures of my most personal areas. It was horrible.

The DPA then asked the CW how long she was at the hospital.                The

CW responded as follows:

                 I was there until 10:00 the next morning. I had to
           receive prophylactic injections in case that the defendant
           had diseases.

                 I took a pregnancy test. I was given oral anti-
           virals to make sure that I didn’t contract hepatitis or
           HIV, and so for every morning and every night for the next
           30 days, I took a pill that made me extremely sick. It’s
           better than getting hepatitis, I guess.

The DPA then asked the CW, “When you look back at this night, .

. . is there anything that you wish you did differently?”

Defense counsel again objected on relevancy grounds and the

objection was overruled.      The CW answered as follows:

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                 I have spent two years thinking and pondering of what
           could have happened differently that night for me, and when
           I first started, my regrets were, I reg[r]et wearing a
           skirt. I reg[r]et shaking his hand. I reg[r]et not being
           able to feel fear and act on it in a way that would protect
           me.
                 And as I’ve -- as I’ve grown in my progress, in my
           healing --

The defense objected for the fourth time on relevancy grounds

and the court sustained the objection.

           On cross-examination, the CW acknowledged that during

a police interview with HPD Detective (Det.) David Yamamoto on

Sunday, May 15, she did not mention the glass of wine that she

had at Top of Waikiki when she was asked about how much alcohol

she had consumed that evening.        She stated that she had

forgotten about the wine at that time and didn’t realize she had

purchased a glass of wine that night until she reviewed her

credit card statement sometime after she returned home.             The CW

also admitted that, when asked about how many drinks she had

that night during the grand jury proceedings, she had not

informed the grand jury about either of the drinks she consumed

at Top of Waikiki that evening.6

           Doctor (Dr.) Wayne Lee testified that he conducted the

CW’s sexual assault examination at the hospital on the morning

     6
            On redirect examination, the DPA asked the CW what her mental
state was like during her interview with Det. Yamamoto. The CW stated that
she was very tired and scared. The DPA asked if she intentionally left
anything out of her statement to Det. Yamamoto, and the CW responded that she
did not. The DPA next asked the CW what the grand jury proceeding was like.
The CW stated that the questions were much more direct and simple, and she
was not asked to give as many details as she was during the trial.



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of May 15, 2016.7     A sexual assault examination begins with a

historical examination, which involves talking with the patient

and asking them questions about their complaint and why they

came to be examined.      During the historical examination, the CW

related that she had consumed five drinks prior to the incident.

Dr. Lee then conducted the physical examination.           He found

tenderness on the back of the CW’s head, a faint contusion on

her lower back, bruises on her lower extremities, and

lacerations near her vaginal entrance.         He took swabs of areas

where the CW stated that DNA might be found, including from her

breasts.   Dr. Lee did not observe any injuries on the CW’s

shoulders, arms, forehead, or neck and did not observe any

bruises, thumb prints, or other contusions.          Dr. Lee testified

that if a person’s neck and arms had been tightly gripped, he

would expect to see marks or redness in those areas.            Similarly,

he would expect to see some sort of mark on the forehead if a

person was headbutted there.       Dr. Lee also testified that the

lacerations on the CW’s genitalia were equally consistent with

consensual sex and non-consensual sex.



     7
            Dr. Lee testified that he graduated from the University of
Hawaiʻi Manoa in 1970 with a bachelor’s degree in zoology and from the
University of Texas Medical School, San Antonio, in 1974 with a medical
degree. The court found Dr. Lee to be qualified as an expert in the field of
medicine, with further experience in the examination and treatment of
patients who present complaints of alleged sexual assault.



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           HPD criminalist Michelle Amorin, an expert in serology

and forensic DNA testing, testified that she compared swabs

collected from the CW’s body during her examination against a

buccal sample collected from Lora.        Amorin testified that sperm

cells were recovered from the samples taken from the CW’s

vagina, and she was able to develop a full DNA profile for the

contributor of the sperm.      Amorin stated that she compared that

DNA profile to Lora’s profile and excluded him as a source of

the sperm cells that were recovered during the CW’s sexual

assault examination.     Amorin also analyzed a sample collected

from the CW’s right breast and stated that it matched Lora’s

profile, with the probability of a false match greater than one

in eight trillion.

           HPD Officer Tricenn Rivera testified that he checked

the Waikīkī Hyatt hotel (Hyatt) for surveillance video that

might have shown the CW around the time of the incident based on

her description of her walk with Lora.         Officer Rivera stated

that he was able to view security footage of the area for the

relevant time frame, but that the video was not recovered at

that time because the person authorized to release the footage

was not available.     Officer Rivera testified to what he saw on

the video:

           [Rivera:] At [a] certain time[, I] was able to identify the
           complainant and a male walk towards the beach, and after a
           few moments, we see the male running northward up the same


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           street, and a few minutes later, we see the female emerge
           from the beach area onto the sidewalk.

           [DPA:] And you say a few moments. When you first see them
           walking, when you see them leaving, are you saying it
           happens in a few moments?

           [Rivera:] It’s actually more than a couple minutes

           . . . .

           [DPA:] And what could you see about their body positions
           during the first portion of the video that you watched?

           [Rivera:] So as they’re walking towards the beach on Uluniu
           Ave, they’re walking together, they’re abreast toward the
           beach, and they’re engaged in conversation.

           [DPA:] And when you see the next relevant portion, it’s
           only the male wearing similar clothing?

           [Rivera:] Correct, and he’s running. He’s actually
           sprinting up Uluniu Avenue by himself.

           [DPA:] And you also see [the CW] reappear in that
           surveillance video?

           [Rivera:] Correct. She emerges from the sidewalk area
           right here, and she appears to be flag –-

           [DPA:] Mm-hm.

           [Rivera:] She appears to be flagging down a passerbyer.

The officer identified the CW in the footage, but he could not

positively identify the man she was with.          The man’s clothes and

build appeared consistent with the description given to him by

the CW.   Officer Rivera testified that, based on the security

footage, the man did not appear to be forcing the CW towards the

beach.    At no point did the CW turn around or pull away, and she

did not appear in distress.       He stated that it didn’t appear

that “anything was wrong with these two people.”

           Det. Yamamoto testified that he was the detective

assigned to investigate the CW’s complaint.          He stated that he

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first went to the hospital to meet with the CW before

investigating the scene.      He was not personally involved with

securing the scene because it had been secured by patrol

officers before he arrived.       Toy Stech, a technician with the

Scientific Investigation Section of the HPD, took photographs

and collected evidence from the scene.         Stech used an alternate

light source to look for biological evidence at the scene, but

none was recovered.

           Det. Yamamoto testified that during the course of his

investigation, he learned that there was a security video that

was pertinent to the investigation.        He initially believed the

video had been retrieved by another officer, but on July 6,

2017, he discovered that the HPD was not in possession of the

video.   He contacted the Hyatt at that time but was unable to

retrieve the video.     The detective explained that he believed

the video had already been recovered because he recalled being

shown the video by another officer.        Det. Yamamoto stated that

he just remembered seeing a video of two people walking and that

it didn’t show anything in particular.         There were no

identifying features and he could not tell what the two people

were wearing.    He did not recall seeing a man sprinting away

from the scene and stated that if he had, such information would

have been noted in his closing report.



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           Det. Yamamoto also testified that he ordered the DNA

testing of the swabs collected from the CW during her

examination.     Sometime after the tests were conducted, he

learned that some of the swabs contained semen and that Lora was

excluded as the source.      After learning this information, he did

not take any additional investigative steps or attempt to

contact the CW.     The detective maintained that although he was

aware of the information, the official report was not completed

before his retirement.      He did not know if any other HPD

personnel had taken investigative action based on the results of

the DNA tests.

           Mitch Johnson, director of security at the Hyatt,

testified that their security video recordings are kept for

thirty days before being deleted.        He stated that he had

responded to requests for security footage from the HPD in the

past and described the procedure that had been established for

many years. The HPD did not request the security video from the

hotel until July 6, 2017.

           During closing argument, the DPA stated “Can you

believe [the CW]?     Yes. . . .    Because [the CW] was candid,

because she was authentic, because she was detailed, and because

she was supported by the evidence.”        The DPA pointed to the fact

that “[The CW] told you about the humiliation that she felt when

she endured the sexual assault exam, of being stripped of her

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clothes, being photographed like a specimen, being poked and

prodded by a strange male she had never met before that night.”

The DPA continued:

           Now, [the CW] was also believable because she was
           consistent. [The CW] was completely candid in the way that
           she testified to everything, the things that made her look
           bad, the things that were embarrassing to her, all of her
           regrets, and the days and weeks and months of wishing that
           she did things differently, that’s the self-blame. That’s
           the self-blame that you saw right in front of you these
           past few days.

           Near the end of argument, the DPA stated that the

evidence in the case “is [the CW], the rest of it is just there

to support or not support.      And [the CW]’s testimony, as the

jury instructions tell you, by itself can prove guilt.”

           Defense counsel argued during closing argument that

the CW’s account was not credible.        Numerous inconsistencies

between the CW’s account and the evidence adduced at trial

undermined the credibility of the CW’s assault allegation,

counsel argued.    These included the inconsistencies between what

the CW stated she was wearing and what Macri and Officer Kawana

observed, the lack of evidence that her clothing was ripped or

damaged, the inconsistency between her description of how Lora

forced her down the street and what Officer Rivera and Det.

Yamamoto observed on the surveillance video, and the

inconsistency between the marks Dr. Lee observed during his

examination of the CW and the marks that he stated he would

expect to see based on the CW’s account.         Counsel also noted the

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inconsistency between the number of drinks the CW reported

consuming to Dr. Lee and her testimony at trial.

           The DPA argued on rebuttal that even though “people

aren’t going to get why [she] didn’t run,” the CW “still went

through all of this.”     The DPA continued, stating that:

           [The CW] still went through that sexual assault exam. She
           still endured having to take medication for weeks. She
           still endured having to fly to Hawaii twice, take time out
           of her life to sit there, relive her assault and be
           attacked for every decision that she made and every action
           she did or didn’t do. She went through all of that with
           absolutely nothing to gain.

                              B. Sentencing

           The jury found Lora guilty on both counts.           Lora

requested, and the State opposed, that he be sentenced as a

young adult defendant pursuant to HRS § 706-667.8           At the

     8
           HRS § 706-667 (2014) provides in relevant part as follows:

           (1) Defined. A young adult defendant is a person convicted
           of a crime who, at the time of the offense, is less than
           twenty-two years of age and who has not been previously
           convicted of a felony as an adult or adjudicated as a
           juvenile for an offense that would have constituted a
           felony had the young adult defendant been an adult.

           . . . .

           (3) Special Term. A young adult defendant convicted of a
           felony, in lieu of any other sentence of imprisonment
           authorized by this chapter, may be sentenced to a special
           indeterminate term of imprisonment if the court is of the
           opinion that such special term is adequate for the young
           adult defendant’s correction and rehabilitation and will
           not jeopardize the protection of the public. When ordering
           a special indeterminate term of imprisonment, the court
           shall impose the maximum length of imprisonment, which
           shall be eight years for a class A felony, five years for a
           class B felony, and four years for a class C felony. The
           minimum length of imprisonment shall be set by the Hawaii
           paroling authority in accordance with section 706-669.
           During this special indeterminate term, the young adult
                                                           (continued . . .)

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sentencing hearing, Lora presented statements from family

members and himself to argue that he fit HRS § 706-667’s age

requirement, was in the military, had no prior arrests or

convictions, and had the love and support of the community.                The

circuit court stated that it was “a terribly sad day for all

concerned.”    The court noted that the CW’s life had been

“forever changed by what happened that night” and that this was

“a violent, horrific act.”       The court recognized that Lora

“vehemently disagree[d]” with the jury’s verdict and it was

clear to the court that Lora had the love and support of many in

the community.      The court further noted that Lora had served in

the military, engaged in community service, and was married and

expecting his first child.       However, the court stated, Lora had

taken advantage of the CW and expected to get away with it

because he was “bigger, badder, stronger.”          “You’re a Marine,”

the court stated.     “You take care of business, and [the CW] was

no match for you.”      The court then stated as follows:

            [O]ne of th[e] options that [defense counsel] is asking the
            Court to consider is that of youthful offender. I think
            you technically meet the requirements.
                  But I divide the world into basically two camps. I
            sentence people every single week. That’s probably the
            most important decision that judges make. And I separate
            the world in two: Those people that are violent, and those
            people that aren’t.


(. . . continued)

            shall be incarcerated separately from career criminals,
            when practicable.



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                 And in this particular instance, while [defense
           counsel] has done his best and everybody who cares about
           you has tried to have the Court focus in on your good
           qualities –- and you have them. But when people are
           watching, it is easy to do the right thing. But when you
           don’t think people are watching, people do things that no
           one would expect them to do. And in this particular case,
           that is exactly what the Court thinks you did. It may not
           typify how you’ve lived the rest of your life.
                 But in an instant, you chose to get out there, trying
           to meet some girls, trying to get some action, or whatever
           you want to call it, and you preyed upon this woman. And
           you treated her like a piece of garbage, and you left her
           there on the beach to try to pull together the pieces. And
           unfortunately, that has blown back on you.
                 So, Mr. Lora, I give you tremendous credit for being
           here today. I worry. I don’t know sometimes when I have
           people released on status whether they’re going to show up,
           especially when they’re looking at a sentence like this.
           But it’s to your credit. All right.
                 But now’s the time where the consequences have to be
           imposed. And for you, Mr. Lora, I am going to deny the
           request for youthful offender sentencing, not that you
           don’t meet the age and other requirements, but I don’t
           believe that a special term is appropriate in your
           situation.

(Emphases added.)

           Lora was sentenced to an indeterminate term of twenty

years of imprisonment on the sexual assault in the first degree

offense and five years of imprisonment on the sexual assault in

the third degree offense with the sentences to run concurrently.

The Judgment of Conviction and Sentence (circuit court judgment)

was entered on June 12, 2018.

                       II.    ICA PROCEEDINGS

           Lora appealed from the judgment to the Intermediate

Court of Appeals (ICA), arguing that the circuit court committed

five separate errors that required either resentencing or a new

trial.   First, Lora argued that the court abused its discretion

by “refusing to sentence Lora as a youthful offender.”            Second,
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Lora maintained that the court erred in overruling defense

counsel’s relevancy objections to the CW’s testimony about her

examination by Dr. Lee and what she wished she had done

differently, and additionally that the court’s failure to

exclude the evidence under Hawai‘i Rules of Evidence (HRE) Rule

403 was plainly erroneous.9       Third, Lora argued that the circuit

court committed plain error by permitting testimony about the

contents of the security video that had not been recovered.

Fourth, Lora maintained that the State committed prosecutorial

misconduct in its opening statement, closing argument, and

rebuttal argument.      Finally, Lora contended that the cumulative

effect of these errors required a new trial.

           In a summary disposition order entered on August 30,

2019, the ICA affirmed the circuit court judgment.10            The ICA

determined that the circuit court did not abuse its discretion

in sentencing Lora.      The ICA stated that the circuit court’s

“division of offenses into ‘two camps’ based on the use of

violence reflects the circuit court’s consideration of the

‘protection of the public,’ as required in HRS § 706-667(3).”

     9
            HRE Rule 403 (2016) provides as follows: “Although relevant,
evidence may be excluded if its probative value is 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.”
     10
            The ICA’s summary disposition order can be found at State v.
Lora, No. CAAP-XX-XXXXXXX, 2019 WL 4132682 (App. Aug. 30, 2019) (SDO).



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           With respect to the CW’s testimony about the

examination, the ICA concluded that it was “relevant evidence

for the jury to consider in assessing” her credibility,

providing potential explanations for her inconsistent testimony

and “undermin[ing] defense counsel’s portrayal of [the] CW as a

liar.”   The ICA exercised plain error review to consider whether

the evidence should have been excluded under HRE Rule 403 and

concluded that the circuit court did not err in permitting the

CW’s testimony.    The ICA determined that the CW’s testimony

about her “regrets” was irrelevant, which the State had

essentially conceded.     But the ICA concluded that the admission

of the testimony was inconsequential because the “CW’s

statements regarding her regrets were brief” and “neither the

State nor defense counsel emphasized it or further referred to

it in closing arguments.”      Accordingly, the ICA concluded that

the error was harmless beyond a reasonable doubt.

           The ICA further determined that the testimony about

the security video was not erroneously admitted, and while the

DPA made argumentative remarks during opening statement, there

was no misconduct during closing argument or rebuttal and the

improper argument was harmless beyond a reasonable doubt.             The

ICA also concluded that although the introduction of the

irrelevant evidence about the CW’s regrets was erroneous and

there was some improper argument during the State’s opening

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statement, these errors were insubstantial, and thus there was

no need to consider their cumulative effect.

           Lora timely sought certiorari review of the ICA’s

Judgment on Appeal, contending that the ICA erred in its rulings

on the points of error raised in his appeal.

                    III.    STANDARDS OF REVIEW

                             A.    Relevance

           “We apply the right/wrong standard in reviewing

challenges to a court’s relevancy decision[.]”           State v. Kony,

138 Hawai‘i 1, 8, 375 P.3d 1239, 1246 (2016).

                            B.    Sentencing

           “[A] sentencing judge generally has broad discretion

in imposing a sentence.      The applicable standard of review for

sentencing or resentencing matters is whether the court

committed plain and manifest abuse of discretion in its

decision.”   State v. Kahapea, 111 Hawaiʻi 267, 278, 141 P.3d

440, 451 (2006) (alteration in original) (citations omitted).              A

court abuses its discretion if it has clearly exceeded the

bounds of reason or disregarded rules or principles of law or

practice to the substantial detriment of a party litigant.

Amfac, Inc. v. Waikiki Beachcomber Inv. Co., 74 Haw. 85, 114,

839 P.2d 10, 26 (1992) (citing State v. Akina, 73 Haw. 75, 78,

828 P.2d 269, 271 (1992)).



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                             IV. DISCUSSION

   A. The Admission of the CW’s Challenged Testimony Was Not
                          Harmless Error.

   1.   The Challenged Testimony Was Not Relevant to the CW’s
                          Credibility.

           Evidence is relevant if it has any tendency to make

the existence of any fact that is of consequence to the

determination of the action more probable or less probable than

it would be without the evidence.        HRE Rule 401 (2016).       In this

case the State argued, and the ICA concluded, that the CW’s

response to the question “What was it like to be examined by a

male doctor?” was relevant to her credibility.           The ICA

emphasized that defense counsel elicited testimony as to how

many drinks the CW reported consuming that evening to Dr. Lee

and that counsel noted in closing argument the inconsistency

between the amount the CW stated to Dr. Lee, police, the grand

jury, and her testimony at trial.        In conclusion, the ICA held

that the CW’s “emotional state during the post-assault

examination provided a possible explanation for the

inconsistencies and was thus relevant . . . to support CW’s

credibility.”

           It appears the ICA assumed that the testimony

regarding the physical examination was probative of the CW’s

emotional state at the time she reported the number of drinks

that she consumed to Dr. Lee, and thus it was relevant to the

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credibility of her statements to Dr. Lee.          Preliminarily, we

note that the CW reported the number of drinks she consumed that

evening to Dr. Lee during the historical examination, which

occurred before she underwent the physical examination.             Thus,

any emotional disturbance caused by the physical examination

could not have affected the credibility of statements the CW

made during the historical examination.         The nature of the CW’s

physical examination and the effect that undergoing it had on

her emotional state was therefore irrelevant to the credibility

of statements that the CW made during the historical

examination.

           Significantly, the challenged testimony also does not

describe the CW’s emotional state during the historical

examination.    The question was framed as an inquiry about the

physical examination: “What was it like to get examined by [a]

male doctor?”    Accordingly, the question prompted the CW to

extensively describe the process she went through when

undergoing the physical examination.11        Similarly, the follow-up


     11
           The CW’s response, as stated, was as follows:

                 Um, the process of a rape collection kit is very
           dehumanizing. Um, after experiencing the trauma that I had
           just gone through, I had to stand on a mat and carefully
           remove all of the clothing that I had on, and I could see
           all the sand falling onto this mat.
                 And I had to stand naked in exam room lighting, just
           completely naked, while someone took pictures of me. I was
           given a gown and a sheet, and I waited for the doctor to
           arrive.
                                                           (continued . . .)

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question by the DPA again went solely to the physical

examination: “And how long were you there?”           The CW’s response

described not only the length of time the CW was at the

hospital, but also the injections and medication given while she

was there and her reactions to medication over the following

month.12   The emotional effect of the physical examination was

therefore irrelevant because it could not have affected the

veracity of statements that were made prior to the physical

examination.    Since the challenged testimony was not probative

of the CW’s emotional state during the historical examination,

it had no bearing on her credibility at the time that the

statements in question were made to Dr. Lee and cannot be

relevant on that basis.       Thus, the detailed testimony about the


(. . . continued)

                  He explained to me in probably the most compassionate
            way that he can that a lot of this will be violating, and
            he apologized upfront for the process.
                  There were, like, a lot of swabs that were taken from
            parts of my body where I know that his saliva had been.
                  There was a vaginal exam, and it’s not the kind like
            you go to the doctor and have one done. It’s, like, a very
            long time with a man looking at me and taking high def
            pictures of my most personal areas. It was horrible.
      12
            As stated above, the CW’s full response was as follows:

                  I was there until 10:00 the next morning. I had to
            receive prophylactic injections in case that the defendant
            had diseases.
                  I took a pregnancy test. I was given oral anti-
            virals to make sure that I didn’t contract hepatitis or
            HIV, and so for every morning and every night for the next
            30 days, I took a pill that made me extremely sick. It’s
            better than getting hepatitis, I guess.



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physical examination was improperly admitted by the court.13

Accordingly, the circuit court and the ICA erred in concluding

that this testimony was relevant to the credibility of

statements the CW made during the historical examination.

           Contrary to the State’s contention that the challenged

testimony was relevant to the credibility of the CW’s statements

to Dr. Lee, the dissenting opinion (dissent) argues that the

challenged testimony was probative of the CW’s mental state

during her interview with Det. Yamamoto the following evening.

Dissent at 2-3.     This position, which the State has never taken

during the proceedings of this case, is not supported by the

CW’s own testimony that explained why certain statements made to

Det. Yamamoto were inconsistent with her testimony at trial.

Additionally, the record does not indicate that the CW ever

referred to the physical examination during the interview or

indicated that its effects impacted her ability to appropriately




      13
            It is noted that during the redirect examination of the CW, the
DPA specifically asked what her state of mind was during her interview with
Det. Yamamoto so that she could explain to the jury why she may have had
difficulty with the precise details in her statement. The reasons given by
the CW did not relate to the physical examination. The DPA also specifically
elicited testimony from the CW explaining why her testimony to the grand jury
did not contain all the details that she testified to at trial. The DPA did
not elicit similar testimony with respect to the CW’s mental state during the
historical examination. Even assuming the CW was in an emotional state from
the incident during the historical examination, this condition would not
provide a basis for admitting evidence of her emotional reactions to the
physical examination that subsequently occurred.



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respond to the detective’s questions.         The dissent’s contention

is consequentially unsupported by the record.

            The dissent also makes the argument that because the

defense maintained that the CW was not truthful in her account

of the incident, the State was permitted to elicit the detailed

testimony regarding the physical examination.          Dissent at 3-4.

The ICA similarly concluded that the challenged testimony

“provided relevant evidence for the jury to infer possible

reasons for a person to voluntarily undergo the examination.”

However, the CW’s reasons for undergoing the examination were

irrelevant to the issues in the case.         The nature of the

physical examination, its length, the manner in which it was

conducted, and medication taken afterwards were likewise not

relevant to the CW’s account of the incident.          The ICA’s and

dissent’s analyses indicate that whenever there is a physical

examination of a complainant following an allegation of a sexual

assault, the complainant is permitted to provide a detailed

explanation of the examination and any subsequent treatment

received if the complainant’s version of the events is impeached

by evidence or is challenged in opening statement or closing

argument.   Thus, although the testimony regarding the physical

examination was not otherwise relevant to the issues at trial,

the ICA and the dissent would hold that it was admissible to

prove why the complainant underwent the examination or as a

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means to bolster the general credibility of the complainant’s

allegation.    We do not agree that these reasons are proper bases

for the admission of the testimony regarding the physical

examination in this case.       We reject an approach that would

permit the admissibility of the impacts of an alleged offense on

a complaining witness in order to bolster the witness’s

credibility after it has been impeached or attacked.14

           Additionally, the DPA was erroneously permitted to

introduce other irrelevant testimony.         The DPA asked the CW,

“When you look back at this night, . . . is there anything that

you wish you did differently?”        Defense counsel objected on

relevancy grounds and was again overruled.15          The State has


     14
            The dissent cites cases from other jurisdictions to support its
contention that the CW in this case could testify to the details of the
medical examination to bolster her credibility after it had been challenged
by the defense. Dissent at 4. Numerous cases have held otherwise, and the
general rule is to the contrary. See Kimberly J. Winbush, Admissibility of
Victim Impact Evidence in Noncapital State Proceedings, 8 A.L.R. 7th Art. 6
(2016) (stating that impact evidence is “generally considered irrelevant if
offered during the guilt phase of a trial unless relevant to a proper
purpose, such as to impeach a victim’s credibility or establish an element of
the crime at issue”).
            In any event, this court has never held that the complainant or
another witness may testify about the impact of an alleged offense merely to
bolster the credibility of a complainant whose credibility has been
impeached, nor do we endorse this proposition.
     15
           The CW testified as follows:

           I have spent two years thinking and pondering of what could
           have happened differently that night for me, and when I
           first started, my regrets were, I reg[r]et wearing a skirt.
           I reg[r]et shaking his hand. I reg[r]et not being able to
           feel fear and act on it in a way that would protect me.
           And as I’ve -- as I’ve grown in my progress, in my healing
           --



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implicitly conceded on appeal that this testimony was

irrelevant, and there is no dispute that the testimony was

improperly admitted into evidence.          Thus, although the ICA

correctly determined that it was error to admit the CW’s

testimony about what she wished she had done differently, the

ICA erred in holding that the CW’s testimony about the physical

examination was properly admitted.16

  2.        The Errors Were Not Harmless Beyond a Reasonable Doubt.

              Once it has been determined that testimony was

erroneously admitted into evidence, the appellate court must

consider whether the erroneous admission was harmless beyond a

reasonable doubt.       State v. McCrory, 104 Hawai‘i 203, 210, 87

P.3d 275, 282 (2004) (quoting State v. Gano, 92 Hawai‘i 161,

176, 988 P.2d 1153, 1168 (1999)).          Errors must be considered in

light of the entire proceedings, and if there is a reasonable

possibility that an error might have contributed to the

conviction, then it is not harmless beyond a reasonable doubt.

Id.

              In this case, the CW was erroneously permitted to

testify about what it was like to undergo the physical

examination and about what she wished she had done differently.


       16
            The ICA also considered whether the challenged testimony should
have been excluded under HRE Rule 403 and concluded that its admission did
not constitute plain error. While it is unnecessary to address this issue,
we do not agree with the ICA’s analysis.


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This court considered the prejudicial effect of similarly

irrelevant testimony in State v. Uyesugi, 100 Hawai‘i 442, 60

P.3d 843 (2002).

           In Uyesugi, the defendant was charged for the shooting

deaths of several individuals.       Id. at 446, 60 P.3d at 847.           The

prosecution adduced testimony about the victims’ backgrounds

from family members.     Id. at 448, 60 P.3d at 849.        On appeal,

this court stated that the admission of the evidence was likely

prejudicial to defendant but did not constitute plain error.

Id. at 460-461, 60 P.3d at 861-862.        We noted that defense

counsel objected to only a single question involving the

evidence and there was no reference to the testimony by the

prosecutor during closing argument.        Id.   Additionally, the

overwhelming evidence of guilt led the Uyesugi court to conclude

that while the admission of the testimony from family members

may have been error, it did not affect the defendant’s

substantial rights and therefore did not rise to the level of

plain error.     Id. at 462, 60 P.3d at 863.

           In contrast, defense counsel in this case immediately

objected to the first improper question as being irrelevant and

was overruled.    Counsel objected again during the course of the

CW’s answer and requested a bench conference.          The objection was

again overruled, and the CW was permitted to provide an

extensive answer that detailed the process of the physical

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examination.    The subsequent question, wherein the DPA asked the

CW if there was “anything that you wish you did differently?”

was also immediately objected to and overruled.           Subsequently,

the DPA referred to the improperly admitted testimony about the

physical examination and the CW’s regrets during closing and

rebuttal arguments and specifically asserted that it bolstered

the credibility of the CW’s sexual assault allegation.17            The

DPA’s use of this evidence as a means to bolster the overall

credibility of the CW’s allegation was clearly improper and

highly prejudicial to the defense.

           The CW’s testimony about the details of the

“dehumanizing” and “horrible” nature of the physical examination

she underwent, “taking high def pictures of [her] most personal

areas,” the injections and medication she was given, and her

reactions to the medication over the following month very likely

created sympathy for the CW and negative feelings against Lora.

See HRE Rule 403 cmt. (stating that evidence may be prejudicial

     17
            The DPA recounted the following testimony during closing
argument: “[The CW] told you about the humiliation that she felt when she
endured the sexual assault exam, of being stripped of her clothes, being
photographed like a specimen, being poked and prodded by a strange male she
had never met before that night.” The DPA relied on the other erroneously
admitted testimony as well, arguing that “[the CW] was completely candid in
the way that she testified to everything, the things that made her look bad,
the things that were embarrassing to her, all of her regrets, and the days
and weeks and months of wishing that she did things differently, that’s the
self-blame.” During rebuttal argument, the DPA again relied on the CW’s
testimony about the physical examination, arguing as follows: “[The CW] still
went through that sexual assault exam. She still endured having to take
medication for weeks.”



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if it engenders juror prejudice, hostility, or sympathy).             The

CW’s testimony about what she wished she had done differently

was similarly inclined to provoke sympathy for the CW and

hostility toward Lora.

            It is clear that the erroneously admitted testimony

was presented in such a way as to cause the jury to believe it

was appropriate for their consideration when determining Lora’s

guilt.    Uyesugi, 100 Hawai‘i at 461-62, 60 P.3d at 862-63.           The

admission of this testimony, the manner in which it was

presented by the DPA, and the reliance upon it during closing

argument all demonstrate that this error was highly prejudicial.

See id.

            Turning to the record as a whole, this is distinctly

not a case where there is a “wealth of overwhelming and

compelling evidence tending to show the defendant guilty beyond

a reasonable doubt.”     State v. Rivera, 62 Haw. 120, 128, 612

P.2d 526, 532 (1980).     As the DPA stated in closing argument,

the evidence of Lora’s guilt “is the CW,” all the other evidence

merely supported or undermined her testimony.          The jury’s

verdict rested on it accepting the CW’s account as true, and the




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erroneously admitted testimony was specifically used to bolster

the credibility of her account.18

           In cases when a defendant’s conviction turns on a

jury’s determination as to credibility, the potential for

prejudice is “particularly evident” where the error concerned

the credibility of the testimony of the witness on which the

case turned; in such circumstances we have held that the error

is not harmless beyond a reasonable doubt.          See State v.

Underwood, 142 Hawai‘i 317, 329, 418 P.3d 658, 670 (2018) (“When

a conviction is largely dependent on a jury’s determination as

to the credibility of a complainant’s testimony, we have held

that the evidence of the offense is not so ‘overwhelming’ that

it renders the prosecutor’s improper statements harmless beyond

a reasonable doubt.”); see also State v. Pacheco, 96 Hawai‘i 83,

97, 26 P.3d 572, 586 (2001) (holding that the prosecutor’s

improper attack on the defendant’s credibility during closing

argument was not harmless when guilt turned on the credibility
     18
            The dissent acknowledges that the CW’s testimony was central to
the State’s case, but it contends that the corroborating evidence
demonstrates the admission of the challenged testimony was harmless. Dissent
at 5-7. However, several portions of the CW’s account of the incident were
not corroborated by other evidence in the record. For example, the CW’s
description at trial of Lora’s use of physical force was inconsistent with
Dr. Lee’s expert opinion that visible marks would have been left on her body
from many of the actions she attributed to Lora, which the doctor stated that
he did not observe and would have expected to see during the physical
examination. The CW’s description of the forceful manner in which she and
Lora walked from her hotel to the beach was inconsistent with the testimonies
of Officer Rivera and Det. Yamamoto as to what the security footage showed.
There were also additional inconsistencies regarding the clothing worn during
the incident and the description of the CW’s shirt being ripped.



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of the defendant’s testimony); State v. Pitts, 146 Hawai‘i 120,

133, 456 P.3d 484, 497 (2019) (holding that error was not

harmless when evidence of defendant’s guilt was not

overwhelming).     Additionally, even the presence of some

corroborating evidence will not militate against a finding of

harmful error when the case essentially turns on credibility.

Underwood, 142 Hawai‘i at 328–29, 418 P.3d at 669–70 (“Although

testimony from other witnesses and physical evidence indicated

the surrounding circumstances were generally consistent with

CW’s account of events, only the statements of CW herself

directly described the actual acts constituting the two

offenses.”).

           Based on the foregoing reasons and our review of the

record as a whole, we are not left with a firm conviction that

there is no reasonable possibility the errors might have

contributed to Lora’s conviction.         Thus, the admission of the

challenged testimony was not harmless beyond a reasonable doubt,

and the conviction must be vacated.19         State v. Nofoa, 135

Hawai‘i 220, 229, 349 P.3d 327, 336 (2015).



      19
            In light of our ruling as to the challenged testimony, we need
not consider whether the alleged misconduct by the DPA during opening
statement, closing argument, and rebuttal closing argument may have also
contributed to Lora’s conviction. Additionally, we also do not decide
whether the officers’ testimonies about what they saw on the security video
recording was erroneously admitted or whether the cumulative effect of the
errors in this case would require that Lora be granted a new trial.


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   B.    The Circuit Court Erred by Effectively Excluding All
    Defendants Convicted of Offenses Involving Violence from
                 Sentencing Under HRS § 706-667.

           HRS § 706-667(1) defines a young adult defendant as a

person convicted of a crime who, at the time of the offense, is

less than twenty-two years of age.        Additionally, the defendant

must not have been previously convicted of a felony as an adult

or adjudicated as a juvenile for an offense that would have

constituted a felony had the defendant been an adult.            HRS

§ 706-667(1).    Defendants that meet this definition may be

sentenced to a special indeterminate term of imprisonment if the

sentencing court “is of the opinion that such special term is

adequate for the young adult defendant’s correction and

rehabilitation and will not jeopardize the protection of the

public.”   HRS § 706-667(3).      By its plain language, the statute

is applicable to any offense except the offenses of murder and

attempted murder.     HRS § 706-667[(4)] (“This section shall not

apply to the offenses of murder or attempted murder.”); see also

Int’l Sav. & Loan Ass’n, Ltd. v. Wiig, 82 Hawaii 197, 201, 921

P.2d 117, 121 (1996) (noting that the inclusion of a specific

matter in a statute implies the exclusion of another when the

contrast between the matter expressed and the one not mentioned

leads to an inference that the latter was not intended to be

included within the statute).       It is also well settled that

“[u]nder the rule of lenity, [a penal] statute must be strictly

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construed against the government and in favor of the accused.”

State v. Woodfall, 120 Hawaii 387, 396, 206 P.3d 841, 850

(2009) (first alteration in original); State v. Kalani, 108

Hawaii 279, 288, 118 P.3d 1222, 1231 (2005) (quoting State v.

Shimabukuro, 100 Hawaii 324, 327, 60 P.3d 274, 277 (2002)).

           Lora met HRS § 706-667(1)’s definition of a young

adult defendant and was not convicted of murder or attempted

murder.   Accordingly, as the circuit court stated, he was

eligible to be sentenced to a special term under HRS § 706-

667(3).   The circuit court decided that it would not sentence

Lora under HRS § 706-667 and stated its reasons for doing so on

the record, a course we have long “urged and strongly

recommended” that sentencing courts take.          State v. Lau, 73 Haw.

259, 263, 831 P.2d 523, 525 (1992) (noting that although the

sentencing court is not obligated to state its reasons for

imposing sentence, it is firmly recommended that it do so,

particularly when sentencing a young adult defendant).

Specifically, the court stated that it “divide[s] the world into

basically two camps[:] . . . . [t]hose people that are violent,

and those people that aren’t.”       The court thereafter concluded

that it did not believe a special term was appropriate in Lora’s

case and denied his request to be sentenced as a young adult

defendant.   In its review of this decision, the ICA stated that


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the “circuit court’s division of offenses into ‘two camps’ based

on the use of violence reflects the circuit court’s

consideration of the ‘protection of the public’ as required in

HRS § 706-667(3).”

           However, it is clear from HRS § 706-667’s plain

language that the statute is applicable to any offense except

murder and attempted murder.       HRS § 706-667(2)-[(4)].       The

statute does not distinguish between violent and non-violent

offenses and, other than the limitation imposed by HRS § 706-

667[(4)], the nature of the offense does not restrict the

application of the statute.       The relevant considerations set

forth in HRS § 706-667(3) are whether a special term will be

adequate for the young adult defendant’s correction and

rehabilitation and whether a special term would jeopardize the

protection of the public.       Categorically excluding defendants

convicted of a crime involving violence from being sentenced as

a young adult would be contrary to the express provisions of the

statute and is inconsistent with this court’s policy of

interpreting such statutes as being inclusive of a more

favorable sentencing alternative in the absence of contrary

language.20   See State v. Casugay-Badiang, 130 Hawaii 21, 33,


     20
            Although the ICA concluded that the circuit court’s categorical
division of offenses simply reflected the court’s consideration of the
“protection of the public,” the court’s categorical approach precludes an
individualized assessment of the risk posed to the protection of the public
                                                            (continued . . .)

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305 P.3d 437, 449 (2013) (“Therefore, it appears that the

legislature did not intend to exclude [young adult sentencing

under] HRS § 706–667 as a sentencing alternative to [the offense

of methamphetamine trafficking in the second degree].”); State

v. Medeiros, 146 Hawaii 1, 3, 454 P.3d 1069, 1071 (2019)

(“[T]he legislature intended for the benefits of [a deferred

plea under] HRS Chapter 853 to be broadly available to

defendants, except where clearly articulated, deliberate

exceptions apply.”); State v. Sakamoto, 101 Hawaii 409, 414, 70

P.3d 635, 640 (2003) (holding that the court did not exceed its

legal authority in granting the defendant’s motion for a

deferred no contest plea when the statute did not expressly

exclude offenses involving “substantial bodily injury”).

            In this case, it appears the circuit court denied

Lora’s request for sentencing as a young adult by relying on the

nature of the offense as a determinative factor.            But

categorically excluding defendants convicted of offenses

involving violence would exclude numerous offenses that are not

excepted from the statute, such as sexual assault offenses

involving forcible compulsion, robbery involving force, and

assaults resulting in substantial or serious bodily injury.                The

(. . . continued)

from sentencing a particular defendant to a special term, which is what is
required by HRS § 706-667(3).


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categorical approach the court used in this case is contrary to

the plain language of the statute, which excludes only murder

and attempted murder.      Therefore, by deciding whether to

sentence Lora as a young adult defendant based on whether or not

the offense involved violence, the court disregarded a principle

of law or practice to the substantial detriment of a party

litigant.    See State v. Klie, 116 Hawaii 519, 525–26, 174 P.3d

358, 364–65 (2007) (holding that the district court disregarded

rules or principles of law or practice to the substantial

detriment of the defendant by denying defendant’s motion for a

deferred acceptance of no contest based on erroneous statutory

interpretation).

            We need not decide, however, whether the circuit court

abused its discretion in not sentencing Lora as a young adult

defendant because the errors we have already discussed require

that the conviction be vacated.        See supra Part IV.A.      We

consider the issue only because we find it necessary to correct

the ICA’s interpretation of HRS § 706-667 and to provide

guidance if the issue should arise again on remand.21           See Omori


     21
            The dissent maintains that the circuit court did not rely on the
violent nature of the offense in concluding that Lora would not be sentenced
as a young adult under HRS § 706-667 because the court made other statements
related to the circumstances of the case at the sentencing hearing. Dissent
at 8-9. The court’s recitation of other matters that were germane to this
case at the sentencing hearing does not alter the fact that, in considering
whether to sentence Lora as young adult, the court explained that it divided
the world into camps: those who are violent, and those who are not. Further,
                                                            (continued . . .)

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v. Jowa Hawaii Co., 91 Hawaii 146, 981 P.2d 703 (1999)

(certiorari granted for the sole purpose of clarifying the ICA’s

interpretation of a statute); see also Sentinel Ins. Co. v.

First Ins. Co. of Hawaii, 76 Hawaii 277, 297, 875 P.2d 894, 914

(1994) (“We now address issues that we anticipate will arise on

remand[.]”).

                              V. CONCLUSION

            Accordingly, the ICA’s October 2, 2019 Judgment on

Appeal and the circuit court’s June 12, 2018 Judgment of

Conviction and Sentence are vacated, and this case is remanded

for further proceedings consistent with this opinion.



Kevin A. Lora, pro se, on the            /s/ Sabrina S. McKenna
application, Emmanuel V. Tipon on
the brief                                /s/ Richard W. Pollack
for petitioner
                                         /s/ Michael D. Wilson
Stephen K. Tsushima
for respondent




(. . . continued)

the court’s statements that did not relate to the violent nature of the
alleged crime concerned mitigating factors such as Lora’s military service
and family ties. The reference to such factors underscores that the court’s
determination as to the applicability of HRS § 706-667 turned on its
categorization of the offense. The ICA’s express approval of a “division of
offenses into ‘two camps’ based on the use of violence” is plainly
inconsistent with HRS § 706-667. (Emphasis added.)


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