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                                                              Electronically Filed
                                                              Supreme Court
                                                              SCWC-10-0000101
                                                              05-DEC-2012
                                                              09:31 AM




           IN THE SUPREME COURT OF THE STATE OF HAWAI#I

                                ---o0o---


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

                                    vs.

          JAMES MUNDON, Petitioner/Defendant-Appellant.



                            SCWC-10-0000101

         CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
               (CAAP-10-0000101; CR. NO. 05-1-0206)

                            December 5, 2012

   NAKAYAMA, ACTING C.J., ACOBA, MCKENNA, AND POLLACK JJ., AND
 CIRCUIT JUDGE NISHIMURA, IN PLACE OF RECKTENWALD, C.J., RECUSED

                  OPINION OF THE COURT BY ACOBA, J.

          We hold, that the Circuit Court of the Fifth Circuit

(the court)1 erred by permitting Respondent/ Plaintiff-Appellee

State of Hawai#i (Respondent) to introduce evidence of acts

allegedly committed by Petitioner/Defendant-Appellant James

Mundon (Petitioner) for which a jury had acquitted him in a prior

trial.   The introduction of such evidence violates the principle

of collateral estoppel embodied in the double jeopardy clause of


     1
          The Honorable Kathleen Watanabe presided.
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article I, section 10 of the Hawai#i Constitution.            Because of

the likelihood of retrial, we also hold that the court (1) did

not err in denying Petitioner’s discovery request because any

error was harmless, (2) did not improperly limit Petitioner’s

cross-examination by sustaining Respondent’s objection to

Petitioner’s question regarding whether he “released” the

complaining witness (hereafter Complainant) for purposes of the
kidnapping offense, (3) erred in allowing Respondent and

witnesses to use the term “victim” in their testimony, but that

any such error was harmless and (4) erred by using information

not provided to Petitioner as a basis for determining

Petitioner’s sentences.

            For the reasons stated herein, we (1) affirm

Petitioner’s convictions for two counts of Assault in the Third

Degree, (2) vacate his convictions for Attempted Sexual Assault

in the First Degree and Kidnapping, and (3) vacate the court’s

sentence on Petitioner’s convictions for the two counts of
Assault in the Third Degree.        In that light, we affirm in part

and vacate in part the Judgment, Guilty Conviction, and Sentence

entered by the court on October 13, 2010; affirm in part2 and

vacate in part the June 27, 2012 judgment of the ICA filed


      2
            Before the Intermediate Court of Appeals (ICA), Petitioner
challenged the court’s order that Petitioner pay restitution for Complainant’s
backpack because “restitution was not included in his original sentence.”
State v. Mundon, No. CAAP-10-0000101, 2012 WL 1473433, at *5 (App. Apr. 27,
2012) (hereinafter “Mundon II”). The ICA determined that” restitution for
Complainant’s backpack . . . violate[d] Hawai#i Revised Statutes (HRS) §
706–609 (Supp. 2004), which prohibits an increased sentence after an
appeal[.]” Id. Neither party challenged the ICA’s ruling in this regard and
therefore we affirm this part of the ICA’s Summary Disposition Order.

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pursuant to its April 27, 2012 SDO; and remand to the court for

further proceedings consistent with this opinion.

                                     I.

                                     A.

             On August 15, 2005, Respondent filed a twenty-eight-

count indictment against Petitioner, all stemming from alleged

incidents occurring on the evening of February 4, 2004, and the
early morning of February 5, 2004.         In his first trial,

Petitioner represented himself, with stand-by counsel.             On the

charges, Petitioner was acquitted of all four counts (counts 1,

2, 3, and 22) of Sexual Assault in the Third Degree3

(Petitioner’s hand on Complainant’s genitals), all five counts

(counts 5-9) of Sexual Assault in the Third Degree (Petitioner’s

hand on Complainant’s breast), all twelve counts (counts 10-21)

of Sexual Assault in the Third Degree (Petitioner’s mouth on

Complainant’s breast), one of two counts of Terroristic

Threatening in the First Degree (TT1)4 (count 26), and one count
(count 23) of Attempted Sexual Assault in the Third Degree5

      3
            HRS § 707-732(1)(f) (Supp. 2004) states that “[a] person commits
the offense of sexual assault in the third degree if . . . [t]he person
knowingly, by strong compulsion, has sexual contact with another person or
causes another person to have sexual contact with the actor.

      4
            At the time of the offense, HRS § 707-716(1)(d) (1993) provided
that “[a] person commits the offense of terroristic threatening in the first
degree if the person commits terroristic threatening . . . [w]ith use of a
dangerous instrument[.]”

      5
            HRS § 705-500 (1993) provides as follows:

            § 705-500 Criminal Attempt
            (1) A person is guilty of an attempt to commit a crime if the
            person:
                                                                (continued...)

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(Complainant’s hand on Petitioner’s penis).

            Petitioner was found guilty on one count of TT1 (count

4), one count of Kidnapping6 (count 24), one count of Assault in

the Third Degree7 (count 25), one count (count 27) of Attempted

Assault in the First Degree,8 and one count (count 28) of

      5
       (...continued)

                  (a)   Intentionally engages in conduct which would
                        constitute the crime if the attendant
                        circumstances were as the person believes them
                        to be; or

                  (b)   Intentionally engages in conduct which, under
                        the circumstances as the person believes them to
                        be, constitutes a substantial step in a course
                        of conduct intended to culminate in the person's
                        commission of the crime.

            (2)   When causing a particular result is an element of the
                  crime, a person is guilty of an attempt to commit the
                  crime if, acting with the state of mind required to
                  establish liability with respect to the attendant
                  circumstances specified in the definition of the
                  crime, the person intentionally engages in conduct
                  which is a substantial step in a course of conduct
                  intended or known to cause such a result.

            (3)   Conduct shall not be considered a substantial step
                  under this section unless it is strongly corroborative
                  of the defendant's criminal intent.

      6
            HRS § 707-720(1)(d) (1993) provides that “[a] person commits the
offense of kidnapping if the person intentionally or knowingly restrains
another person with intent to . . . [i]nflict bodily injury upon that person
or subject that person to a sexual offense[.]”

      7
            HRS § 707-712 (1993) provides as follows:

                  § 707-712 Assault in the third degree. (1) A person
            commits the offense of assault in the third degree if the
            person:
                  (a)   Intentionally, knowingly, or recklessly causes
                        bodily injury to another person; or
                  (b)   Negligently causes bodily injury to another
                        person with a dangerous instrument.
                  (2) Assault in the third degree is a misdemeanor
            unless committed in a fight or scuffle entered into by
            mutual consent, in which case it is a petty misdemeanor.

      8
            HRS § 707-710 (1993) states that “[a] person commits the offense
of assault in the first degree if the person intentionally or knowingly causes
                                                                (continued...)

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Attempted Sexual Assault in the First Degree (attempted digital

penetration)9.

            On certiorari from the first trial, this court

concluded that (1) because, in support of the Attempted Sexual

Assault in the First Degree charge (count 28), Respondent offered

evidence that Petitioner “stuck his hand in the [C]omplainant’s

underwear and touched her outer labia three times[,]” and “[t]he
evidence and the reasonable inferences therefrom established that

[Petitioner] made three separate attempts to subject the

[C]omplainant to an act of sexual penetration[,]” it was plain

error for the court not to issue a specific unanimity instruction

advising the jury that all twelve of its members must agree on

which of the three acts supported count 28, State v. Mundon, 121

Hawai#i 339, 350, 352-53, 219 P.3d 1126, 1137, 1139-40 (2009)

(hereinafter, “Mundon I”); (2) because the prosecution argued to

the jury in support of the two TT1 counts (counts 4 and 26) that

there were two separate instances in which Petitioner threatened
Complainant with a knife, and no specific unanimity instruction

was given to the jury, it was impossible to know whether all

twelve jurors agreed that the same underlying act supported the

TT1 conviction, id. at 353-55, 219 P.3d at 1140-42; (3) the trial



      8
        (...continued)
serious bodily injury to another person.”

      9
            HRS § 707-730(1)(a) (Supp. 2004) states: “A person commits the
offense of sexual assault in the first degree if . . . [t]he person knowingly
subjects another person to an act of sexual penetration by strong
compulsion[.]”

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court’s denial of Petitioner’s motions seeking written

transcripts of the preliminary hearing and grand jury proceedings

was not harmless beyond a reasonable doubt, id. at 355-58, 219

P.3d at 1142-45; and (4) Petitioner was denied his constitutional

due process right to adequately prepare his defense when the

trial court proceeded with motions in limine although Petitioner

did not have his trial materials and could not properly respond
to the prosecution’s motions in limine, id. at 358-59, 219 P.3d

at 1145-46.    This court reversed Petitioner’s conviction for the

one TT1 count (count 4),10 and vacated Petitioner’s remaining

convictions (counts 24, 25, 27, and 28) and remanded the case for

a new trial.    Id. at 372, 219 P.3d at 1159.

                                     II.

            On remand at Petitioner’s second trial, the charges

were renumbered as follows:       count 1--Attempted Sexual Assault in

the First Degree, HRS §§ 705-500 and 707-730(1)(a) (renumbered

from Count 28); count 2--Kidnapping, HRS § 707-720(1)(d)
(renumbered from count 24); count 3--Attempted Assault in the

Second Degree, HRS §§ 705-500, 707-711 (renumbered from count 27)




      10
            This court stated that because Petitioner was charged with two
counts of TTI, the prosecution introduced evidence of two distinct acts
supporting those counts, no specific unanimity instruction was given, and the
jury convicted on one count and acquitted on the other, there was no way to
know which specific act served as the basis for the jury’s conviction on count
4. Mundon I, 121 Hawai#i at 355, 219 P.3d at 1142. According to Mundon I,
remanding for retrial on count 4 raised the distinct possibility that
Petitioner could be retried for an offense involving the conduct of which he
was acquitted. Id. Because retrying Petitioner on count 4 would violate
Petitioner’s double jeopardy rights, this court determined that the conviction
on that count had to be reversed. Id.

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(attempted bodily injury to Complainant),11 and count 4--Assault

in the Third Degree, HRS § 707-712(1)(a) (renumbered from count

25).    In his second trial, Petitioner again represented himself,

with different stand-by counsel.

                                       A.

             Prior to trial, on March 18, 2010, Petitioner filed a

request for discovery of, inter alia, “[a]ny written documents
supplied to [Complainant by Respondent] via e-mail, facsimile

transmission, and U.S. mail secretly used to study, memorize,

rehearse, and prepare her material trial testimony between

February 2004-February 2007[.]”          On March 30, 2010, Petitioner

made a second discovery request for the same materials.               On April

13, 2010, the court filed an order denying Petitioner’s request

on the ground that correspondence between Respondent and

Complainant constituted Respondent’s “attorney work product.”

                                       B.

             Just prior to opening statement, Respondent,
referencing Odum v. State, 989 A.2d 232, 244–45 (Md. 2010),

indicated that it would introduce evidence of all of the acts for

which Petitioner had been acquitted in his first trial.

Petitioner objected to the admission of such evidence.               The court

overruled the objection.




      11
            In Petitioner’s first trial he was charged with Attempted Assault
in the First Degree (serious bodily injury). On retrial, Petitioner was tried
instead of Attempted Assault in the Second Degree (substantial bodily injury).


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            At trial, Respondent called, among others, the

following witnesses:     Complainant, Christopher Ronon (Ronon),

Kauai Police Department (KPD) Officers Clyde Caires (Officer

Caires), James Rabasa (Officer Rabasa), Rolland Peahu (Officer

Peahu) and Jesse Castro (Officer Castro), Lieutenant Sherwin

Perez (Lieutenant Perez), and Nancy Wall (Wall).

                                    1.
            Complainant testified that she arrived on Kauai from

Canada on February 3, 2004.      On her second day on the island, she

met a man named “Tito” (Felix Guzman) during a bus ride.            When

she mentioned to Tito that she planned to stay on the beach, he

advised her that it was not safe to do so.         Complainant and Tito

left the bus at a stop near Kapaa.        Tito asked Complainant to

wait at a bench while he went to see if there was room for

Complainant at a nearby hostel.

            While waiting, Complainant saw Petitioner pacing near

the water with a flashlight.       Complainant asked him what he was
doing and for the time.     Petitioner told her he was fishing, and

that it was 10 p.m.     Tito returned and related that the hostel

was full.    Petitioner mentioned that “he had connections [from]

his fire inspection job” and that he could get a hotel room for

Complainant at a “hugely discounted rate[.]”

Petitioner appeared to make some telephone calls.           Complainant

saw Tito and Petitioner conversing but was unable to hear what

they were saying.    Complainant advised Petitioner that she was


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tired and was “just going to snooze where [she] was sitting[.]”

Petitioner offered to allow Complainant to sleep in the cab of

his truck.    Complainant awoke to find the truck moving;

Complainant had “no idea” where she was and Tito was not in the

truck.    When she inquired regarding Tito’s whereabouts,

Petitioner informed her that he had given Tito forty dollars and

instructed him to go ahead and secure a hotel room.
            Complainant and Petitioner eventually ended up at an

“open area.”    Petitioner told Complainant that the hotel “was in

the distance” and that Petitioner was supposed to flash his

lights and Tito would come to the truck.         Petitioner flashed his

lights but Tito did not come.       Petitioner exited the truck and

told Complainant he was going to look for Tito.           After a while,

Petitioner returned with “no news of seeing him.”

            Complainant told Petitioner that she “needed to go

pee.”    Petitioner “ripped off a piece of towel” for Complainant

“to wipe with after.”     Complainant went to use the restroom and
returned to the truck, sat in the passenger seat, and tried to

fall asleep.    Just before she fell asleep, Petitioner told her

that they needed to leave.      He related that he was going to the

other “access part of the hotel” because there may have been some

confusion regarding where to meet.        Petitioner explained he was

frustrated because they had been “waiting too long” and “Tito

owed him money.”




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            Complainant told Petitioner she wanted to return to the

area where she had slept the previous night and then fell back

asleep.    When she awoke, they were headed down a bumpy road.             The

truck stopped and Complainant observed lights to the right side

of the vehicle and “bushy” trees to the left; she also heard the

ocean in front of her.      Petitioner stated that they were at “the

other access point to the hotel,” then left with a flashlight and
told Complainant that he was going to look for Tito or a security

guard.

            Petitioner returned “without any news of either of

them.”    Petitioner instructed Complainant to roll up her window

and lock the doors because there were “wild cats” in the area.

He then went to look for Tito or a security guard one more time.

This time when Petitioner returned, he informed Complainant that

he had instructed a security guard who had seen Tito on the hotel

property to direct Tito to the truck.

            Complainant started to “drift off again.”          She awoke
shortly after and Petitioner’s hand “had already gone up the

bottom of [her] dress” and he was “touching [her] outer labia.”12

Complainant believed she had given Petitioner the “wrong

impression” so she “apologized and wiggled away and said like I’m

sorry, I don’t actually like you, I’m really sorry.”            Petitioner

was “super apologetic and [he] backed off right away and said



     12
            Webster’s dictionary defines “outer labia” or “labia majora” as
            “the outer fatty folds of the vulva bounding the vestibule.”
            Merriam Webster’s Collegiate Dictionary 649 (10th ed. 1993).

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just like I’m sorry and [] it won’t happen again.”           She thought

everything “was all cleared up” so she went back to sleep, but

when she awoke, Petitioner again had his hand “up [her] dress and

under the waistband of [her] panties and [was] trying to go

further down and touching [sic] the outer labia area.”

          She thought Petitioner was confused so she reiterated

what she had said earlier, only “more loudly” and “repeated it a
couple more times.”     Petitioner seemed “shocked” and “backed

away” and “apologized profusely[.]”        Complainant fell asleep,

assuming everything was clear to Petitioner, but when she woke

up, once again, Petitioner’s arm was up her dress and he was

“touching [her] outer labia[.]”       Complainant “did not want to

spend one moment around any longer” so she grabbed her bag and

turned to leave by the passenger door.         Petitioner grabbed her

from behind and squeezed her tight.        She asked him what he was

doing and instructed him to let go of her.         Petitioner threatened

that “he had a knife” and would “cut [her] if [she] wasn’t still
and to shut up.”    Complainant felt “something cold and [] sharp-

edged” pressed against her neck but did not actually see a knife.

          Complainant asked Petitioner what he wanted her to do

and he told her to take off her clothes.         When she said “no,” he

told her he would “cut” her so she took off most of her clothes

but did not take off her dress.       When she refused to take off her

dress, Petitioner warned her that she did not want to see him




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“fully angry” because Petitioner did not know what he would do.

As a result, Complainant complied.

           Petitioner then began to touch and kiss Complainant’s

breasts.   She stated that his hands were “kind of like all over”

and one of his hands again went under the waistband of her

underwear and over her outer labia area.         She was “wiggling the

entire time and trying to get away[.]”         She told him that she
“was menstruating” but he responded he did not care and continued

to “grope” her.    Petitioner directed Complainant to “touch his

penis” and when she refused, he became “angry” and threatened to

tie her up.    He reached into his glove compartment and pulled out

some rope and tape.

           In an attempt to get Petitioner “to be repulsed[,]”

Complainant stated she needed to “pee and poo.”           Petitioner told

her to “go in the truck[,]” but she begged to exit the truck, and

he agreed.    She got out and “went both pee and poo.”          Petitioner

handed   her a towel after.     She then hurried back to the vehicle,
grabbed her backpack and “ran as fast as she could with [her] bag

on [her] back[.]”    Complainant did not get very far before

Petitioner caught up with her and grabbed her by the underwear.

Petitioner tackled her from behind and “shoved [her] . . . to the

ground.”   Her chin, knees, and elbows hit the ground.

           When Complainant began screaming, Petitioner shoved

sand and his fingers down her throat.        She tried to get the knife

away from Petitioner but her attempts were “futile” because he


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was “really strong.”     She wanted to bite his fingers but

Petitioner’s hand “was too far down [her] throat[.]”            At some

point during the struggle, Petitioner punched Complainant in the

rib area.    Petitioner then started “breathing really heavily”;

“like overly labored.”     Complainant saw Petitioner suddenly “go

pale,” and look “really weird and sick[.]”         She told him she

would not run away and that she would take off her sandals as
proof.   Petitioner apparently believed her and backed up a bit.

Complainant removed her sandals and started running.

            Complainant ran toward the hotel but came to a canal.

She crossed through the canal, and ran to the oceanfront units.

She went up to one of the units and began banging on the patio

window and yelling.     A man came to the screen door and she said,

“He’s after me and he’s going to hurt me, let me in, I need to

get in.”    She was given a sheet to wrap around her and some

clothing.

            The police were called and she informed them that
“someone had tried to rape [her]” and provided Petitioner’s first

name, and a description of Petitioner and his vehicle.

Complainant told Officer Caires that she had left her clothing in

Petitioner’s truck and that there were fire extinguishers and

milk cartons in the back of the truck.

                                    2.

            Ronon testified that on February 5, 2004, he was

vacationing on Kauai with his wife and two other couples.             They


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were staying in a condominium unit at Kauai Beach Villas.                At

approximately 3:30 a.m., he and his wife heard pounding on the

sliding door and someone yelling, “[H]elp me, help me; let me in;

he’s after me; he’s got a knife.”           Ronon opened the sliding door

and a young woman in underwear, whom Ronon identified as

Complainant, ran past him and crouched down on the side of the

bed and said, “[H]e’s after me; he tried to rape me; he attacked
me.”    The woman also stated, several times, that “he has a

knife.”     According to Ronon, the woman was shaking

“uncontrollably,” and looked “to be in a state of panic.”                Ronan

called the police and they arrived ten minutes later.

                                       3.

             Officer Caires testified that at approximately 3:20

a.m. on February 5, 2004, he was dispatched to one of the rooms

at the Kauai Beach Villas.         He observed a woman wrapped in a

white sheet shaking uncontrollably.           She told him she was twenty-

one years old.       Having determined that a “major crime” had
occurred, he called detectives to take over the investigation.

                                       4.

             At approximately 4:00 a.m. on February 5, 2004, Officer

Peahu and Officer Castro were dispatched to Petitioner’s

residence.      They discovered Petitioner’s Ford pickup truck parked

on the front lawn.       In the truck bed were fire extinguishers and

milk cartons.      Petitioner was sleeping in the truck and when the

officers approached, he woke up and got out of his vehicle.


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Officer Peahu noticed Petitioner had “sweat on his face,” his

shirt was damp, and his shirt and shorts were dirty.            Officer

Castro observed “cuts and scrapes” on both of Petitioner’s knees,

and sand on his feet and “around the open wound” on Petitioner’s

knee.   Petitioner was placed under arrest.        Officer Castro saw a

dress and folding knife on the driver’s seat, and white rope and

a roll of tape on the floorboard.
           Complainant’s backpack and sandals were found in a

sandy area near Marine Camp Road, the area where Complainant

alleged she was assaulted.      Lieutenant Perez testified that a

white towel with fecal matter was found near a bush in the area.

                                    5.

           The court qualified Wall, a retired registered nurse,

as an expert in the field of nursing, and as a Sexual Assault

Nurse Examiner (SANE).     Wall examined Complainant on February 5,

2004, and observed multiple bruises, lacerations, and abrasions

on Complainant’s body.     Sand fell from Complainant’s head and
pubic hair when she combed through it.         Wall indicated that

Complainant appeared to be menstruating at the time of the

examination.

           Complainant had bruising and marks on her neck,

consistent with Complainant’s statement that she felt pressure on

her neck from a cold, hard, possibly sharp object.           Complainant

also had a “recent abrasion” on her knee with particles of sand

on the abrasion.    Wall answered affirmatively when asked whether


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such an injury was consistent with Complainant’s story that she

fell in the sand while attempting to escape.           According to Wall,

the minor lacerations on Complainant’s elbows were also

consistent with Complainant being tackled from behind.

                                     6.

            Petitioner did not testify at trial.

                                     C.
            Petitioner was found guilty of Attempted Sexual Assault

in the First Degree (count 1, renumbered from Count 28);

Kidnapping-No voluntary release13 (count 2, renumbered from count

24), the lesser included offense of Assault in the Third Degree

(count 3, renumbered from count 27, Attempted Assault in the

Second Degree), and Assault in the Third Degree (count 4,

renumbered from count 25).       He was sentenced to twenty years of

imprisonment in counts 1 and 2 and one year of imprisonment in

counts 3 and 4.     The twenty-year terms in counts 1 and 2 were

ordered to run consecutively, the one-year terms in counts 3 and
4 were ordered to run concurrently with each other and

concurrently with the terms in counts 1 and 2. [RA at 1239]                 The

court ordered a mandatory minimum period of imprisonment of six

years and eight months in count 1 and 2, without the possibility

of parole. [Id.]



      13
            Kidnapping is “a class A felony” except “[i]n a prosecution for
kidnapping, it is a defense which reduces the offense to a class B felony that
the defendant voluntarily released the victim, alive and not suffering from
serious or substantial bodily injury, in a safe place prior to trial.” HRS §
707-720(2) and (3) (emphasis added).

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                                    II.

          Petitioner appealed once again.           On appeal to the ICA,

Petitioner argued that the court erred by:
          (1) improperly limiting discovery; (2) improperly permitting
          evidence of acts for which [Petitioner] was acquitted in the
          first trial, without also admitting evidence that
          [Petitioner] was acquitted of those alleged acts; (3)
          improperly limiting cross examination of the [Complainant];
          (4) improperly allowing [Respondent] to make references to
          [the] Complainant as “victim” over the objection of the
          defense; and (5) imposing consecutive twenty year sentences,
          an award of restitution, and a mandatory minimum term of
          imprisonment.

Mundon II, 2012 WL 1473433, at *1.

          As to the first point, the ICA rejected Petitioner’s

argument that the court erred in denying Petitioner’s discovery

request because, (1) although Hawai#i Rules of Penal Procedure

(HRPP) Rule 16(b)(1)(i)14 requires the prosecution to disclose to


     14
          HRPP Rule 16(b) provides as follows:

                b) Disclosure by the Prosecution.

                (1) Disclosure of Matters Within Prosecution's
          Possession. The prosecutor shall disclose to the defendant
          or the defendant’s attorney the following material and
          information within the prosecutor’s possession or control:

                (i) the names and last known addresses of persons whom
          the prosecutor intends to call as witnesses in the
          presentation of the evidence in chief, together with any
          relevant written or recorded statements, provided that
          statements recorded by the prosecutor shall not be subject
          to disclosure;

                (ii) any written or recorded statements and the
          substance of any oral statements made by the defendant, or
          made by a co-defendant if intended to be used in a joint
          trial, together with the names and last known addresses of
          persons who witnessed the making of such statements;

                (iii) any reports or statements of experts, which were
          made in connection with the particular case or which the
          prosecutor intends to introduce, or which are material to
          the preparation of the defense and are specifically
          designated in writing by defense counsel, including results
          of physical or mental examinations and of scientific tests,
                                                              (continued...)

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the defendant “‘any relevant written or recorded statements,’”

assuming some of the material requested constituted “statements,”

they would be “statements recorded by the prosecution” and hence

not subject to disclosure, id. at *2; (2) the material sought by

Petitioner would not tend to negate Petitioner’s guilt, id.; and

(3) the material requested constituted attorney-work product

under HRPP Rule 16(e)(5)(I).       Id.
           As to the second point, the ICA determined that because

“the acts underlying the acquitted charges were intrinsic to a

charge for which [Petitioner] was retried, [] it was not error to

admit evidence of those acts.”       Id. (citing Odum, 989 A.2d at

244–45).   In the ICA’s view, the court did not abuse its

discretion in concluding that the evidence of acts supporting the

acquitted charges were relevant and not unfairly prejudicial.


     14
      (...continued)
           experiments, or comparisons;

                 (iv) any books, papers, documents, photographs, or
           tangible objects which the prosecutor intends to introduce,
           or which were obtained from or which belong to the
           defendant, or which are material to the preparation of the
           defense and are specifically designated in writing by
           defense counsel;

                  (v) a copy of any Hawai#i criminal record of the
           defendant and, if so ordered by the court, a copy of any
           criminal record of the defendant outside the State of
           Hawai#i;

                 (vi) whether there has been any electronic
           surveillance (including wiretapping) of conversations to
           which the defendant was a party or occurring on the
           defendant's premises; and

                 (vii) any material or information which tends to          |
           negate the guilt of the defendant as to the offense charged
           or would tend to reduce the defendant’s punishment therefor.



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Id.   According to the ICA, the court “properly sought to preclude

all references to the first trial because such evidence, under

a[] Hawai#i Rules of Evidence (HRE) Rule 403 balancing, could

result in unfair prejudice, confusion of the issues or misleading

the jury.”     Id. (emphasis in original).        The ICA further

concluded that the court did not err in admitting evidence of

acts supporting the acquitted charges without permitting
Petitioner to introduce evidence of the acquittals.             Id.

            As to the third point, the ICA concluded that

Petitioner was not denied his right to meaningful cross-

examination when the court sustained Respondent’s objection to

Petitioner’s question, “What was [Petitioner] doing when he

agreed to let you go?”       Id. at *4.     The ICA reasoned that there

was no evidence that Petitioner voluntarily agreed to let

Complainant go.      Id.   Moreover, Petitioner was not precluded from

rephrasing the question and was able to and did in fact cross-

examine Complainant extensively on the issue of voluntary
release.    Id.

            As to the fourth point, the ICA did not decide whether

Respondent’s references to Complainant as the “victim” was error.

The ICA held instead that, assuming it was error, the error was

harmless beyond a reasonable doubt because (1) there were only a

few “victim” references by the deputy prosecutor, and (2) the

court’s instructions regarding the presumption of innocence cured




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any error.    Id. at *5 (citing State v. Nomura, 79 Hawai#i 413,

416-18, 903 P.2d 718, 721-23 (App. 1995)).

            As to the fifth point, the ICA held it was not error

for the court to justify the imposition of consecutive twenty-

year sentences, in part, on the ground that Petitioner was “‘in

the same category as [the defendant in another sexual assault

case] in terms of the need for consecutive sentencing.’”15             Id.
In addition, the ICA pointed out that the court evaluated the

factors set forth under HRS § 706–606 (1993).16

                                    III.

            In his Application for Writ of Certiorari, Petitioner


      15
            As noted, Petitioner also challenged the court’s order that
Petitioner pay restitution for Complainant’s backpack because “restitution was
not included in his original sentence.” Mundon II, 2012 WL 1473433, at *5.
None of the parties challenge the ICA’s ruling in this regard and hence this
issue is not addressed further.

      16
            HRS § 706-606 provides as follows:

                  § 706-606 Factors to be considered in imposing a
            sentence. The court, in determining the particular sentence
            to be imposed, shall consider:

                  (1)   The nature and circumstances of the offense and
                        the history and characteristics of the
                        defendant;
                  (2)   The need for the sentence imposed:
                        (a)   To reflect the seriousness of the offense,
                              to promote respect for law, and to provide
                              just punishment for the offense;
                        (b)   To afford adequate deterrence to criminal
                              conduct;
                        (c)   To protect the public from further crimes
                              of the defendant; and
                        (d)   To provide the defendant with needed
                              educational or vocational training,
                              medical care, or other correctional
                              treatment in the most effective manner;
                  (3)   The kinds of sentences available; and
                  (4)   The need to avoid unwarranted sentence
                        disparities among defendants with similar
                        records who have been found guilty of similar
                        conduct.

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raises the same questions raised before the ICA:
                  1. Did the ICA err in affirming the [court’s] limit on
            discovery?
                  2. Did the ICA err in affirming the admission of evidence
            at retrial, of crimes for which [Petitioner] had been acquitted in
            the first trial?
                  3. Did the ICA err in affirming limits of cross-examination
            of [Respondent’s] witness?
                  4. Did the ICA err in affirming [Respondent’s] references
            to [] [C]omplainant as “victim?”
                  5. Did the ICA err in affirming the [court’s] imposition of
            [a] consecutive sentence upon improper grounds?[ 17]

            Respondent did not file a Response to the Application.

                                     IV.

            Petitioner’s first question relates to his request for

documents supplied to Complainant between February 2004 and

February 2007, which the court denied on the ground that the

material requested constituted attorney work product.

Complainant replaced her earlier description of being “groped” in

her underwear with a reference to her “outer labia” being

touched.

            Prior to Petitioner’s second trial, Complainant did not

use the term “outer labia.”       The statutory definition of “sexual

penetration,” for purposes of Sexual Assault in the Third Degree

is defined in part as any intrusion of any part of a person’s

body or of any object into the genital or anal opening.”             HRS §

707-700 (Supp. 2004).      In 2006, HRS § 707-700 was amended to

define “genital opening” as including “the anterior surface of

the vulva or labia majora[.]”        See 2006 Haw. Sess. Laws Act 230,

§ 26 at 1013-14 (emphasis added).          Complainant’s use of the term

      17
            Petitioner raised the same arguments on appeal to the ICA.   See
Mundon II, 2012 WL 1473433, at *1.

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“outer labia” would arguably serve as some basis for Petitioner’s

request.

            As Respondent noted in its Answering Brief, the

prosecution is not required to disclose all information,

correspondence, evidence, and other material in its possession.

HRPP Rule 16(b)(1)(vii) requires the prosecutor to disclose “any

material or information which tends to negate the guilt of the
defendant as to the offense charged or would tend to reduce the

defendant’s punishment therefor.”

            The materials requested by Petitioner constituted

“correspondence” between Respondent and Complainant, and

“records” (statement made by Complainant to the police) under the

rule.    HRPP Rule 16(e)(5)(i) protects correspondence and reports

only “to the extent that they contain the opinions, theories or

conclusions” of the attorney or the attorney’s member or legal

staff.    Respondent has not alleged that the materials requested

by Petitioner contained any of its “opinions, theories or
conclusions” relating to the case.        Here, the court did not

ascertain whether the material requested actually constituted

protected work product of Respondent.

            Petitioner suggested before the ICA that it may be

error for the court to make a determination regarding discovery

of material claimed to be privileged without at least conducting

an in camera review of the documents at issue.          See O'Connell,

332 S.W.3d at 44 (concluding that it was improper for the court


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to order discovery of work product without a prior in camera

inspection).    However, any error was harmless in this case.

            As disclosed in oral argument before this court,

Petitioner’s concern was only with the use of the term “outer

labia.”    However, Petitioner did have the opportunity to cross-

examine Complainant regarding her use of that term.            Petitioner’s

cross-examination of Complainant regarding this issue, under the
circumstances here, rendered any error harmless.            Accordingly,

the ICA did not gravely err in affirming the denial of

Petitioner’s discovery request.

                                     V.

            In connection with Petitioner’s second question,

Petitioner maintains that the court’s error violated his rights

against double jeopardy under the Fifth Amendment to the United

States Constitution and article 1, section 10 of the Hawai#i

Constitution,18 and his rights to due process and equal

protection under the Fifth and Fourteenth Amendments to the
United States Constitution, and article 1, sections 519 and 14 of




      18
            Article 1, section 10 of the Hawai#i Constitution states, in
relevant part, that “nor shall any person be subject for the same offense to
be twice put in jeopardy.” Haw. Const. Art. 1, § 10.

      19
            Article I, section 5 of the Hawai#i Constitution provides that
“[n]o person shall be deprived of life, liberty or property without due
process of law, nor be denied the equal protection of the laws, nor be denied
the enjoyment of the person’s civil rights or be discriminated against in the
exercise thereof because of race, religion, sex or ancestry.” Article I,
section 14 of the Hawai#i Constitution provides in part that “[i]n all
criminal prosecutions, the accused shall enjoy the right . . . to be informed
of the nature and cause of the accusation[.]”

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the Hawai#i Constitution.     We decide this question under Article

1, Section 10.

           As stated, Respondent indicated prior to trial that it

intended to introduce evidence of “[a]ll of the acts that

occurred in the incident,” including the acts of which Petitioner

was acquitted.    Respondent had apparently presented the court

with a memorandum of law, referencing Odum, which was attached
thereto.   This memorandum does not appear to have been filed.

           Petitioner, acting pro se, initially noted that in

Odum, there were five accomplices whereas in the instant case,

Petitioner was the only person involved.         Because it had been

proven that he “didn’t do” those acts, Petitioner argued it would

not “be fair” to introduce those acts in his second trial.             For

example, he noted he was acquitted of “touching [Complainant’s]

genital area” and that “it would be unfair for [Respondent] to

use that –- again, to convict [him] for the attempted crimes or

continuing conduct of the attempted sexual assault and kidnapping
charge.”

           Next, Petitioner maintained that use of the acts of

which he was acquitted would violate his “constitutional rights

[against] double jeopardy.”      Petitioner specifically stated that

in order to convict him of attempted sexual assault in the first

degree, Respondent would need to prove that “touching the

genital[s]” was “a substantial step.”        He urged, however, that it



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would be a violation of double jeopardy for Respondent to

introduce evidence in his second trial that he touched

Complainant’s genitals because he was acquitted of such acts in

his first trial.

            Finally, Petitioner argued that introducing these acts

would “raise questions to these new jurors” regarding his first

trial.    Thus, he maintained that allowing Respondent to
“reintroduce evidence that [he] was acquitted for [sic] would . .

. prejudice [him].”

            In response, Respondent related that although the Odum

court ruled that Rule 404(b) of the Maryland Rules of Evidence

did not apply because these were not other or “prior bad acts,”

the evidence was relevant to establishing Petitioner’s state of

mind for the retried offenses.       Respondent stated, for example,

that such acts would “show that [Petitioner] had the intent [to]

unlawfully restrain[] [Complainant] in order to subject her to a

sexual offense.”    In addition, Respondent argued that although
the evidence was prejudicial, the risk of prejudice did not

outweigh its probative value.

            The court ruled that Respondent would not be “precluded

from admitting evidence of all of the offenses that [Petitioner]

faced during his first trial, as they were all part of the same

criminal episode of the charges he faces on retrial.”            (Emphasis

added.)    The court added that “any alleged prejudice . . . [did]



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not outweigh the probative value of the evidence[.]”20

Subsequently, acquitted acts were introduced in connection with

the Attempted Sexual Assault in the First Degree and the

Kidnapping charges.

                                     VI.

            Respondent argued to the ICA that the evidence was

properly admitted because (1) the acts “were all part of the same
criminal episode” and hence admissible, (2) under HRE Rule 403,

the evidence was “highly probative” and although prejudicial, not

“unfairly” prejudicial, (quoting Odum, 989 A.2d at 245) (emphasis

in original), and (3) Petitioner was not subjected to double

jeopardy because (a) the acquittals meant only that the jury had

reasonable doubt as to whether he completed the sexual contact,21

(b) he was retried only for Attempted Sexual Assault in the First

Degree, and (c) although acquitted of touching Complainant’s

genitals, evidence of such acts could be offered to support the

“substantial step” for purposes of the Attempted Sexual Assault
in the First Degree count.




      20
            Although the court referenced prejudice and probative value, the
court did not specifically cite HRE Rule 403.

      21
            Respondent asserted that Petitioner’s acquittal in his first trial
of all Sexual Assault in the Third Degree charges meant only that the jury
could not find beyond a reasonable doubt that Petitioner completed the alleged
sexual contact but it does not mean he did not commit a substantial step
toward sexual penetration by reaching “under the waistband of [Complainant’s]
panties, to her vaginal area.”


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          Respondent did not challenge Petitioner’s alternative

argument that the court should have at least instructed the jury

that Petitioner had been acquitted of “completed sexual

contact[.]”   Instead, Respondent argued that the court’s error

was harmless beyond a reasonable doubt because “[t]he jury was

properly instructed as to the offense of Attempted Sexual Assault

in the First Degree, including a specific unanimity instruction,
and the jury only needed to find a ‘substantial step’ in

furtherance of sexual penetration by strong compulsion; it did

not need to find completed sexual contact.”

                                    VII.

                                     A.

          It is established that the guarantee against “‘[d]ouble

jeopardy protects individuals against:         (1) a second prosecution

for the same offense after acquittal; (2) a second prosecution

for the same offense after conviction; and (3) multiple

punishments for the same offense.’”        State v. Ake, 88 Hawai#i 389,
392, 967 P.2d 221, 224 (1998) (quoting State v. Quitog, 85 Hawai#i

128, 141, 938 P.2d 559, 572 (1997)).        Double jeopardy does not,

however, “prohibit a state from retrying a defendant whose

judgment of conviction is set aside because of [the trial

court’s] error.”    State v. Cabral, 8 Haw. App. 506, 511, 810 P.2d

672, 676 (1991).    In this case Petitioner was not retried on the

counts of which he was convicted, but only on the counts vacated

in Mundon I on account of trial error.         Therefore, double

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jeopardy does not bar retrial on the counts for which Petitioner

was convicted.

                                     B.

           However, the United States Supreme Court has held that

“collateral estoppel” is a principle embodied in the right

against double jeopardy, and precludes relitigation of issues

already decided, even when double jeopardy is not necessarily
implicated.   Ashe v. Swenson, 397 U.S. 436, 443 (1970).           In Ashe,

the defendant was charged with armed robbery arising from an

incident during which four masked men, armed with shotguns, broke

into the basement of a home while six men were engaged in a poker

game, and robbed them.     Id. at 437.     The defendant was one of

four men arrested in connection with the incident.           Id.   He was

tried for the armed robbery of one of the poker players, and was

found not guilty.    Id. at 439.

           Six weeks later, the defendant was brought to trial for

the robbery of another participant in the poker game.            Id.
Although the witnesses were for the most part the same, the

testimony was substantially stronger in the second trial.              Id. at

439-440.   For example, two witnesses who had been unable to

identify the defendant as one of the robbers, testified in the

second trial as to the defendant’s features, size, and

mannerisms.   Id. at 440.     Another witness who identified the

defendant only by size and actions in the first trial, identified

the defendant by the unusual sound of his voice.           Id.   The

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prosecution also declined to call a participant in the poker game

whose identification testimony in the defendant’s first trial had

been “conspicuously negative.”        Id.    The defendant was found

guilty in the second trial.       Id.

         Relying on the doctrine of collateral estoppel, the Court

reversed the defendant’s conviction.          The Court explained that

collateral estoppel means that “when an issue of ultimate fact
has once been determined by a valid and final judgment, that

issue cannot again be litigated between the same parties in any

future lawsuit.”22     Id. at 443.      The Court held that the doctrine

prevented the prosecution from relitigating in the second trial

the ultimate fact issue of whether the defendant had participated

in the robbery that had previously been determined by a valid and

final judgment in the first trial.          Id. at 446.

            The Court remarked that at common law and under the

early federal statutes, “a single course of criminal conduct was

likely to yield but a single offense.”          Id. at 446 n.9.     However,
more recently, with the “extraordinary proliferation of


      22
            Where, as in this case, a defendant is retried, collateral
estoppel does not squarely apply “since retrial cannot be ‘collateral’ if it
is a ‘continuation’ of the first trial.” U.S. v. Bailin, 977 F.2d 270, 276
(7th 1992). Instead, "[i]ssue preclusion ‘within the confines of a single
claim or cause of action’ is known as ‘direct estoppel.’” Id. (citing 18
Charles A. Wright et al., Federal Practice & Procedure § 4418, at 169 (1981)
(Federal Practice & Procedure)). Both collateral estoppel and direct estoppel
“bar the government from relitigating issues that were necessarily and finally
decided in the defendant’s favor by reason of the jury’s partial acquittal on
other counts.” Id. at 276-77; see also Yeager v. United States, 557 U.S. 110,
120 (2009) (holding that the Ashe doctrine includes direct estoppel).
However, because the cases generally refer to collateral estoppel, that term
is employed herein.

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overlapping and related statutory offenses, it became possible

for prosecutors to spin out a startlingly numerous series of

offenses from a single alleged criminal transaction.”            Id.   As

the number of offenses increased, “the potential for unfair and

abusive reprosecutions became far more pronounced.”            Id.   Thus,

the courts soon recognized the need to prevent abuses through the

doctrine of collateral estoppel.          Id.
          However, in applying the doctrine of collateral

estoppel to a general jury verdict of acquittal, courts must be

careful not to take a “hypertechnical and archaic approach,” but

should, “with realism and rationality . . . examine the record of

a prior proceeding, taking into account the pleadings, evidence,

charge, and other relevant matter, and conclude whether a

rational jury could have grounded its verdict upon an issue other

than that which the defendant seeks to foreclose from

consideration[.]”    Id. at 444 (emphasis added).          The inquiry

“‘must be set in a practical frame and viewed with an eye to all

the circumstances of the proceedings.’”         Id. (Quoting Sealfon v.
United States, 332 U.S. 575, 579 (1948)).         Otherwise, “[a]ny test

more technically restrictive would, of course, simply amount to a

rejection of the rule of collateral estoppel in criminal

proceedings, at least in every case where the first judgment was

based upon a general verdict of acquittal.”          Id.

          Applying collateral estoppel to the case at hand, the

Court reasoned that once a jury had “determined by its verdict

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that the [defendant] was not one of the robbers, the State could

[not] constitutionally hale him before a new jury to litigate

that issue again.”     Id. at 445 (emphasis added).        In other words,

because a jury had already determined “there was at least a

reasonable doubt that the [the defendant] was one of the robbers,

the State could not present the same or different identification

evidence in a second prosecution . . . in the hope that a
different jury might find that evidence more convincing.”             Id. at

446 (emphasis added).

                                    C.

                                    1.

           In Dowling v. United States, 493 U.S. 342 (1990),

however, a majority of the Court appeared to employ a more

technical and restrictive definition of collateral estoppel.               In

that case, the defendant was charged with bank and armed robbery.

Id. at 344.    The bank robber had been wearing a ski mask during

the robbery.    Id.   The defendant’s first trial ended in a hung
jury.   Id.   In his second trial, the defendant was convicted on

both counts but his convictions were reversed on appeal.            Id.     In

his third trial, the prosecution sought to call Vena Henry to

testify regarding a crime of which the defendant had been

acquitted.    Id. at 344-345.    Henry would testify that two men,

one wearing a mask and carrying a small handgun, entered her home

approximately two weeks after the bank robbery, and that she was

able to unmask the masked man, whom she would identify as the

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defendant.    Id.    The prosecution argued that the testimony was

admissible because Federal Rules of Evidence (FRE) Rule 404(b)

allowed the admission of crimes, wrongs, or acts for purposes

other than character evidence, i.e., to establish that the mask

described by Henry was similar to the mask worn in the bank

robbery, and to establish that the defendant could be linked to

the other man alleged to have entered Henry’s home.           Id. at 345.
            Under FRE Rule 404(b) the Government only had to

establish that the other acts had occurred by a preponderance of

the evidence.    Id. at 356.    The district court admitted the

evidence, reasoning that it was highly probative circumstantial

evidence.    Id. at 345.    Henry was permitted to testify but

following her testimony, the district court instructed the jury

that the defendant had been acquitted of robbing Henry, and

emphasized the limited purpose for which Henry’s testimony was

being offered.      Id. at 345-46.   The court reiterated that

admonition in its final charge to the jury.          Id. at 346.
            The majority assumed that “Dowling’s acquittal

established that there was a reasonable doubt as to whether

Dowling was the masked man who entered Vena Henry's home[.]”               Id.

But, according to the majority, “to introduce evidence on this

point at the bank robbery trial, the Government did not have to

demonstrate that Dowling was the man who entered the home beyond

a reasonable doubt:      the Government sought to introduce Henry’s

testimony under Rule 404(b),” and “‘[i]n the Rule 404(b) context,

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similar act evidence is relevant only if the jury can reasonably

conclude that the act occurred and that the defendant was the

actor.’”    Id. (quoting Huddleston v. United States, 485 U.S. 681

(1988)).    Thus, “[b]ecause a jury might reasonably conclude that

Dowling was the masked man who entered Henry’s home, even if it

did not believe beyond a reasonable doubt that Dowling committed

the crimes charged at the first trial, the collateral estoppel
component of the Double Jeopardy Clause [was] inapposite.”              Id.

at 348-49.    Consequently, the majority held that “an acquittal in

a criminal case does not preclude the Government from

relitigating an issue when it is presented in a subsequent action

governed by a lower standard of proof.”23         Id. at 349.

            The majority based its holding on prior cases that it

said supported this proposition. (Citing United States v. One

Assortment of 89 Firearms, 465 U.S. 354 (1984), and One Lot

Emerald Cut Stones v. United States, 409 U.S. 232 (1972)).              In

both of those cases the Court had allowed the evidence to be

admitted in the in rem proceedings “partly because of the clearly
lower standard of proof in the subsequent civil proceeding and

partly because the later proceeding was remedial rather than

punitive in nature.”      United States v. Crispino, 586         Supp. 1525,

      23
            The Court was referring to the fact that under FRE 404(b) evidence
of the prior acquitted crime (Henry’s testimony) would be admissible “if the
jury can reasonably conclude that the act occurred and that the defendant was
the actor,” and “the Government did not have to demonstrate that Dowling was
the man who entered the home beyond a reasonable doubt.” Dowling, 493 U.S. at
348.


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1533 (1984).   Following the civil cases, the jury verdict in the

first action did not “negate the possibility that a preponderance

of the evidence could show that [the defendant] was engaged in”

an act of which the defendant was later acquitted.           Id.

            Alternatively, the majority held that even if the lower

standard of proof under FRE Rule 404(b) applied in a second

proceeding did not avoid the collateral estoppel issue, the
evidence would still be admissible.        Id. at 350.     Dowling noted

that Ashe stated “that where a previous judgment of acquittal was

based on a general verdict, courts must . . . ‘conclude whether a

rational jury could have grounded its verdict on an issue other

than that which the defendant seeks to foreclose from

consideration.’”    Id. (quoting Ashe, 397 U.S. at 444).           In that

regard, the defendant “did not demonstrate that his acquittal in

his first trial represented a jury determination that he was not

one of the men who entered Henry’s home.”         Id.

                                    2.
            Justice Brennan, joined by Justice Marshall and Justice

Stevens, dissented.     Justice Brennan wrote that “[t]o permit a

second trial after an acquittal, however mistaken the acquittal

may have been, would present an unacceptably high risk that the

Government, with its vastly superior resources, might wear down

the defendant, so that even though innocent he may be found

guilty.”    Id. at 355 (internal quotation marks and citation

omitted).

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            In addition to protecting against retrial for the same

offense, the doctrine of collateral estoppel protects the

defendant from having to relitigate any ultimate facts resolved

in the defendant’s favor by the prior acquittal.             Id. at 356.

Thus, the collateral estoppel doctrine “would preclude the

Government from introducing evidence which relies on facts

previously determined in the defendant’s favor by an acquittal.”
Id.

            In Justice Brennan’s view, the majority’s analysis was

“inconsistent with [the Court’s] admonition in Ashe that an

excessively technical approach to collateral estoppel ‘would, of

course, simply amount to a rejection of the rule of collateral

estoppel in criminal cases, at least in every case where the

first judgment was based upon a general verdict of acquittal.’”

Id. at 358 (emphasis in original) (quoting Ashe, 397 U.S. at

444). Justice Brennan elaborated that “[w]henever a defendant is

forced to relitigate the facts underlying a prior offense for
which he has been acquitted, there is a risk that the jury

erroneously will decide that he is guilty of that offense[.]”

Id. at 361.     The danger is that “the jury may feel that the

defendant should be punished for [extrinsic] activity even if he

is not guilty of the offense charged.”           Id. at 362.    There is

also a risk that “the evidence may lead the jury to conclude

that, having committed a crime of the type charged, the defendant



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is likely to repeat it.”      Id. (internal quotation marks and

citation omitted).

          Justice Brennan also attacked the majority’s use of

civil cases to justify its holding “those forfeiture cases

involved civil remedial measures rather than criminal

punishment.”   Id. at 359 (citations omitted).         Never before had

“such reasoning [been applied] to a successive criminal
prosecution in which the Government [sought] to punish the

defendant and hinge[d] that punishment at least in part on a

criminal act for which the defendant ha[d] been acquitted.”                Id.

at 360.   Indeed, in Ashe the Court had indicated to the contrary:

“It is much too late to suggest that [collateral estoppel] is not

fully applicable to a former judgment in a criminal case,”

because “the judgment may reflect only a belief that the

Government had not met the higher burden of proof [(beyond a

reasonable doubt)] exacted in such cases for the Government’s

evidence as a whole. . . .”      397 U.S. at 443 (citation omitted).
According to Justice Brennan, “[b]y definition, when the

Government fails to prove a defendant guilty beyond a reasonable

doubt, the defendant is considered legally innocent.”            Id.

(emphasis added).    Justice Brennan believed that at least with

respect to subsequent criminal prosecutions, “the acquitted

defendant is to be treated as innocent and in the interests of

fairness and finality made no more to answer for his alleged



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crime.”   Id. (citing State v. Wakefield, 278 N.W.2d 307, 308

(Minn. 1979)).

                                    VIII.

                                      A.

            Ashe appears to reflect the better reasoned approach

and the rationale therein is hereby adopted under the Hawai#i

Constitution.24    Recognizing that the proliferation of statutory
offenses allows the prosecution to charge a defendant with

multiple counts based on the same incident, the Court adopted the

collateral estoppel doctrine to curb potential abuses.             See Ashe,

397 U.S. at 443-444.      The Court intended to prevent putting a

defendant in the position of having to relitigate his guilt as to

an issue already decided in his favor by an acquittal.             See id.

at 445-446 (“For whatever else that constitutional guarantee may

embrace . . . it surely protects a man who has been acquitted

from having to ‘run the gauntlet’ a second time.”).

      24
            This court, “[a]s the ultimate judicial tribunal with final,
unreviewable authority to interpret and enforce the Hawai#i Constitution, [is]
free to give broader protection than that given by the federal constitution.”
State v. Detroy, 102 Hawai#i 13, 22, 72 P.3d 485, 494 (2003). We therefore
independently adopt the collateral estoppel rule as set forth in Ashe as being
embodied in the double jeopardy clause of the Hawai#i Constitution.

            It must be noted that “state courts are absolutely free to
interpret state constitutional provisions to accord greater protection to
individual rights than do similar provisions of the United States
Constitution.” Arizona v. Evans, 514 U.S. 1, 8 (1995). “If a state court
chooses merely to rely on federal precedents as it would on the precedents of
all other jurisdictions, then it need only make clear by a plain statement in
its judgment or opinion that the federal cases are being used only for the
purpose of guidance, and do not themselves compel the result that the court
has reached.” Michigan v. Long, 463 U.S. 1032, 1041 (1983). In consonance
with Long, federal cases are cited in this opinion only for the purpose of
guidance as to the issues raised by Petitioner in this case. The Hawai#i
Constitution, as opposed to federal law, compels the result reached herein.

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           Yet, under Dowling, the prosecution is permitted to

introduce evidence that the defendant committed an act for which

the defendant was already acquitted, so long as the burden to

establish the occurrence of the act is less than beyond a

reasonable doubt such as admission of evidence under FRE 404(b).

This undermines the legal presumption that a defendant is

innocent until proven guilty.       See Dowling, 493 U.S. at 361, n.4
(Brennan J., dissenting) (holding that “when the Government fails

to prove a defendant guilty beyond a reasonable doubt, the

defendant is considered legally innocent,” and “with respect to

subsequent criminal prosecutions, ‘the acquitted defendant is to

be treated as innocent and in the interests of fairness and

finality made no more to answer for his alleged crime.’”)

(quoting Wakefield, 278 N.W.2d at 308.         The prosecution in effect

is allowed to argue that despite its failure to prove that the

defendant was guilty of an act in the first trial, the defendant

is not innocent and has, despite the prior acquittal, committed
the act.   See id. at 363.

           Additionally, admitting evidence of an acquitted crime

compels a defendant (if he or she hopes to prevent the jury from

deciding the issue against him) to again defend the same conduct

for which he or she had already been acquitted.           In this regard,

the majority’s position in Dowling is contrary to Ashe.            Compare

Dowling, 493 U.S. at 352 (“We recognize that the introduction of



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evidence in circumstances like those involved here has the

potential to prejudice the jury or unfairly force the defendant

to spend time and money relitigating matters considered at the

first trial.”) with Ashe, 397 U.S. at 445 (“Once a jury had

determined upon conflicting testimony that there was at least a

reasonable doubt that the petitioner was one of the robbers, the

State could not present the same or different identification
evidence in a second prosecution for the robbery of [the

complainant] in the hope that a different jury might find that

evidence more convincing.”).       Moreover, the passage of time and

the additional expense of having to defend against acts that were

not charged may make it more difficult for the defendant to mount

a second defense.    Dowling, 493 U.S. at 363 (Brennan J.,

dissenting).

          Further, there is a risk that the jury will convict the

defendant because it believes that the fact that the defendant

committed the prior act (despite the acquittal) makes it more
likely that the defendant committed the charged offense.            There

is also a risk that the jury will feel that the defendant was

guilty of the prior acquitted charge even if it believes the

defendant is not guilty of the charged offense, and will convict

the defendant in order to punish him for the prior offense.

These dangers, which strike at the heart of the protections

embodied in the Double Jeopardy Clause are not addressed by the



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majority in Dowling.      Ashe and the dissenters’ view25 in Dowling

are thus more faithful than the majority’s position in Dowling to

the principles of the presumption of innocence, the burden of

proof beyond a reasonable doubt, and the efficacy of an

acquittal.

            Also, the majority in Dowling does precisely what Ashe

admonishes should not be done, inasmuch as the majority employs a

hypertechnical approach to the doctrine of collateral estoppel.

In Ashe, the Court had explained that “[i]f a later court is

permitted to state that the jury may have disbelieved substantial

and uncontradicted evidence of the prosecution on a point the

defendant did not contest, the possible multiplicity of

prosecutions is staggering.”26       397 U.S. at 444 n.9.       Moreoever,


      25
            In the past, this court has not hesitated to adopt the dissents in
U.S. Supreme Court cases when it was believed the dissent was better reasoned
than the majority opinion. See, e.g., State v. Cuntapay, 104 Hawai#i 109, 85
P.3d 634 (2004) (agreeing with the dissent in Minnesota v. Carter, 525 U.S. 83
(1998)); see also State v. Kam, 69 Haw. 483, 748 P.2d 372 (1988)(adopting the
reasoning of the dissent in Pope v. Illinois, 481 U.S. 497 (1987)); State v.
Santiago, 53 Haw. 254, 492 P.2d 657 (1971) (adopting the dissent in Harris v.
New York, 401 U.S. 222 (1971)).

      26
            The principles of Ashe may have been codified by our legislature
in HRS § 701-111(2) (Supp. 2004), which provides as follows:

            § 701-111 When Prosecution is barred by former prosecution
            for a different offense

                  Although a prosecution is for a violation of a different
            statutory provision or is based on different facts, it is barred
            by a former prosecution under any of the following circumstances:
                  (2)   The former prosecution was terminated by an
                        acquittal or by a final order or judgment for
                        the defendant which has not been set aside,
                        reversed, or vacated and which acquittal, final
                        order, or judgment necessarily required a
                        determination inconsistent with a fact which
                        must be established for conviction of the second
                                                                 (continued...)

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“such a restrictive definition of ‘determined’ amounts simply to

a rejection of collateral estoppel, since it is impossible to

imagine a statutory offense in which the government has to prove

only one element or issue to sustain a conviction.”2728 Id.

(emphasis added).

                                         B.

            Banther v. State, 884 A.2d 487 (Del. 2005), decided

post-Dowling, is also instructive.             In Banther, Banther was

acquitted in his first trial of conspiring to commit murder, but

convicted of first-degree murder.             Id. at 489.   On appeal,

however, the Delaware Supreme Court vacated the murder conviction

and remanded for retrial.          Id.   On retrial, the prosecution

attempted to prove the first-degree murder charge by establishing

accomplice liability, specifically arguing that Banther agreed to

aid the principal, his accomplice, in “planning” the murder.

Id.   The supreme court of Delaware reversed Banther’s conviction

for first-degree murder and remanded for a new trial, concluding

      26
       (...continued)
                        offense.

Our statute is modeled after the Model Penal Code. HRS § 701-111 was not
raised or argued by either party. Assuming its application, HRS § 701-111
reiterates, but does not replace, the constitutional rule.

      27
            The term “determined” refers to the court’s use of that word in
preceding text, that “Collateral Estoppel” means simply that “‘when an issue
of ultimate fact has once been determined by a valid and final judgment, that
issue cannot again be litigated between the same parties in any future
lawsuit.’” Dowling, 493 U.S. at 347 (quoting Ashe, 397 U.S. at 443) (emphasis
added).

      28
            As the double jeopardy clause applies only to criminal
prosecutions, the collateral estoppel rule adopted herein does not affect the
standard for collateral estoppel in civil cases.

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that in allowing the prosecution to make this argument, the trial

court “failed to account for the collateral estoppel effect of

the earlier acquittal for conspiracy.”           Id.

            That court noted that the Delaware Constitution

protects defendants against double jeopardy and that

“[p]rinciples of double jeopardy . . . are subsumed by the

broader doctrine of collateral estoppel, which ‘means simply that

when an issue of ultimate fact has once been determined by a

valid and final judgment, that issue cannot be litigated between

the same parties in any future law suit.’”             Id. at 492 (quoting

Marine v. State, 624 A.2d 1181, 1190 (Del. 1993) (citing Ashe,

397 U.S. at 443)).29      Conspiracy required, in part, an intent to

agree to aid another in the planning of a felony.             Id. at 493.

But accomplice liability may be established by acting

“unilaterally, without a preexisting agreement, by spontaneously

deciding to aid, counsel, or attempting to aid another, or by

agreeing to aid a principal in planning or committing a crime.”

Id.

            In arguing that Banther acted as an accomplice by

aiding the principal in planning the murder, the State implied

Banther acted jointly as opposed to unilaterally.             Id.   The

Delaware Supreme Court concluded that “[t]he State’s references



      29
            Banther noted that the doctrine of collateral estoppel is codified
in a Delaware statute. That statute is worded identically to HRS § 701-
111(2).

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to Banther’s planning focused on concerted actions, which

although not labeled as a ‘conspiracy,’ nonetheless operated as

the functional equivalent of the agreement element that is

fundamental to a conspiracy.”        Id.   But, because Banther had

already been acquitted of conspiracy to commit murder, that court

concluded, “The earlier jury must have rejected the fact of an

agreement between Banther and [the principal.]”            Id. at 494.

Consequently, Banther held under collateral estoppel principles,

that accomplice liability could be established only “on the basis

of Banther’s individual, independent and spontaneous actions-not

on the basis of a theory that he and [the principal] had ‘worked

together’ on the plan.”       Id.

            Similarly, in the instant case, Respondent prosecuted

both the Attempted Sexual Assault in the First Degree and

Kidnapping charges by seeking to establish that Petitioner had

committed acts of sexual assault for which he had already been

acquitted.    Collateral estoppel bars the prosecution from seeking

to have the jury decide for the second time whether Petitioner

had in fact committed the acts of which he had already been

acquitted in his first trial.30

      30
            Respondent, the court and the ICA incorrectly relied on Odum.
Odum was charged with, and tried for, his involvement with four others in the
armed robbery, carjacking, kidnapping, and murder of two individuals. 989
A.2d at 234. He was acquitted on all offenses except for kidnapping. Id. At
Odum’s retrial, the State sought to present evidence relating to the acquitted
crimes. Id. Odum attempted to preclude such evidence, arguing that the
prosecution was barred by the doctrine of collateral estoppel. Id. at 235-36.
Nevertheless, the trial court admitted the evidence as relevant “to the
overall criminal venture and to the [d]efendant’s role and participation” and
                                                                 (continued...)

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                                     IX.

            In this case, in order to convict Petitioner of

Attempted Sexual Assault in the First Degree (digital

penetration), Respondent was required to prove beyond a

reasonable doubt that Petitioner had taken a “substantial step”

toward digitally penetrating Complainant, and that he exerted

“strong compulsion.”      Respondent sought to establish that

Petitioner had taken a substantial step toward digitally

penetrating Complainant in the second trial by proving beyond a

reasonable doubt that Petitioner had touched Complainant’s labia.

Respondent also apparently argued that the fact that Petitioner

“fondled” Complainant’s breasts demonstrated strong compulsion.31

      30
        (...continued)
as probative of events before the kidnapping that was not outweighed by any
unfair prejudice. Id. at 236.
             The Maryland Supreme Court, relying on Dowling, Id. at 241, held
that evidence of the acquitted counts could be admitted in the second trial
for a purpose that would not require the State to prove those acts beyond a
reasonable doubt. Similarly, here, for example, Respondent argued that the
evidence was relevant to proving Petitioner’s requisite intent for the
attempted sexual assault and kidnapping offenses. But, in admitting evidence
of such acts based upon a lower standard of proof than beyond a reasonable
doubt, Odum followed Dowling. As discussed supra, the precepts in Ashe, as
opposed to Dowling, should govern.

      31
            Specifically as to the “substantial step” element for count 1,
Respondent identified Petitioner’s touching of Complainant’s labia as the
“substantial step” Petitioner took toward penetration. In closing argument
during the second trial, the prosecution argued:

            Did [Petitioner] take a substantial step in causing
            sexual penetration by strong compulsion? Strong
            compulsion [sic] is any intrusion of any part of a
            person’s body into the genital opening. We heard how
            close the labia was. And that after he had held the
            knife to her, he fondled her breast. But the sexual
            assault here is when he put his hand under her
            underwear and he was on top of her labia and he was
            going to digitally penetrate her.

                                                                 (continued...)

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           It must first be determined whether Petitioner’s

acquittal in his first trial on counts 1, 2, 3, and 22, Sexual

Assault in the Third Degree (hand on genitals), on counts 5, 6,

7, 8 (hand on breast), and on counts 9, 10, 11, 12, 13, 14, 15,

16, 17, 18, 19, 20, 21 (mouth on breast) amount to a decision by

the jury that Petitioner did not in fact touch Complainant’s

labia and breasts or put his mouth on her breasts.            See Ashe, 397

U.S. at 443 (“‘Collateral estoppel’ . . . means simply that when

an issue of ultimate fact has once been determined by a valid and

final judgment, that issue cannot again be litigated between the

same parties in any future lawsuit.”).          As noted, this inquiry

“must be set in a practical frame and viewed with an eye to all

the circumstances of the proceedings.”          Id.   It must be borne in

mind that “the ground[s] of acquittal cannot generally be

ascertained.”    United States v. Mespoulede, 597 F.2d 329, 333

(1979).   Thus, in ascertaining whether an acquittal reflects a

jury’s determination as to a particular issue, a court “must not

make the defendant’s task even more formidable by straining to

postulate ‘hypertechnical and unrealistic’ grounds on which the

jury could conceivably have rested its conclusions[.]”             Id.

(quoting United States v. Jacobson, 547 F.2d 21, 23 (2d Cir.

1976)).




     31
       (...continued)
(Emphasis added).

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                                     A.

                                     1.

          The indictment against Petitioner in his first trial on

counts 1, 2, 3, and 22, Sexual Assault in the Third Degree,

stated, identically, as follows:
                On or about the 5th day of February, 2004, in the
          County of Kauai, State of Hawai#i, [Petitioner] did
          knowingly, by strong compulsion, have sexual contact with
          [Complainant], by putting his hand on her genitals, thereby
          committing the offense of Sexual Assault in the Third Degree
          in violation of Section 707-732(1)(f) of the [HRS].

(Emphasis added.)    The indictment on counts 5, 6, 7, 8, 9 and

likewise stated identically:
                On or about the 5th day of February, 2004, in the
          County of Kauai, State of Hawai#i, [Petitioner] did
          knowingly, by strong compulsion, have sexual contact with
          [Complainant], by putting his hand on her breast, thereby
          committing the offense of Sexual Assault in the Third Degree
          in violation of Section 707-732(1)(f) of the [HRS].

(Emphasis added.)    The same pertained to counts 10, 11, 12, 13,

14, 15, 16, 17, 18, 19, 20, and 21:
                On or about the 5th day of February, 2004, in the
          County of Kauai, State of Hawai#i, [Petitioner] did
          knowingly, by strong compulsion, have sexual contact with
          [Complainant], by putting his mouth on her breast, thereby
          committing the offense of Sexual Assault in the Third Degree
          in violation of Section 707-732(1)(f) of the [HRS].

          In order to find Petitioner guilty of these offenses,

then, Respondent was required to prove that Petitioner subjected

Complainant to sexual contact (1) by placing his hand on her

genitals and breasts, and by placing his mouth on her breasts,

(2) by strong compulsion, and (3) by doing so knowingly as to the

foregoing elements.     See State v. Veikoso, 126 Hawai#i 267, 280,



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270 P.3d 997, 1010 (2011).      As recounted, Petitioner was found

not guilty of the foregoing offenses.

          In light of the number of times Complainant maintained

Petitioner had touched her genitals and touched and put his mouth

on her breasts, the acquittals could not have been predicated on

the jury’s finding that Petitioner had done these acts, but done

so unknowingly.    See Mespoulede, 597 F.2d at 333 (concluding that

the jury’s acquittal for possession of cocaine with intent to

distribute could not have been predicated on a finding by the

jury that the defendant possessed the cocaine but did not intend

to distribute it in light of the quantity the defendant was

charged with possessing).      The jury in the first trial also

convicted Petitioner of “intentionally engag[ing] in conduct

which, under the circumstances as he believed them to be,

constituted a substantial step in a course of conduct intended to

culminate in his commission of the crime of Sexual Assault in the

First Degree[,]” pursuant to count 28 of the indictment.

(Emphases added.)    Petitioner “commits the offense of Sexual

Assault in the First Degree . . . if he knowingly subjects

another person to an act of sexual penetration by strong

compulsion.”   HRS § 707-730 (emphasis added).         It would appear,

then, that the jury believed Petitioner acted with knowledge and

intent.

          Nor does it appear that the jury determined that

Petitioner did in fact touch Complainant’s genitals and breasts

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and put his mouth on her breasts, but did not do so “by strong

compulsion.”   To reiterate, “strong compulsion” means
          the use of or attempt to use one or more of the following to
          overcome a person:

          (1) A threat, express or implied, that places a person in
          fear of bodily injury to the individual or another person,
          or in fear that the person or another person will be
          kidnapped;
          (2) A dangerous instrument; or
          (3) Physical force.

HRS § 707-700.    The jury convicted Petitioner of Kidnapping in

his first trial, which required Respondent to prove that

Petitioner “restrained” Complainant, HRS § 707-720(1)(d), which

is defined as “restrict[ing] a person’s movement in such a manner

as to interfere substantially with the person’s liberty . . .

[b]y means of force, threat, or deception[,]” HRS 707-700 (1993).

Hence, it may be presumed that the jury did conclude Petitioner

exercised strong compulsion over Petitioner at some point.

          Additionally, as discussed, the jury in the first trial

also convicted Petitioner of count 28, Attempted Sexual Assault

in the First Degree, in violation of HRS §§ 705-500 and 707-

730(1)(a).   As related, Petitioner “commits the offense of Sexual

Assault in the First Degree . . . if he knowingly subjects

another person to an act of sexual penetration by strong

compulsion.”   HRS § 707-730 (emphasis added).         Since the jury

found that Petitioner acted with strong compulsion in attempting

to sexually penetrate Complainant, it would seem highly unlikely

that a rational jury could also find that Petitioner did not use



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strong compulsion in touching Complainant’s genitals and breasts

or in kissing Complainant’s breasts.32

            The jury verdict is logical and can be reconciled if

the jury concluded that Petitioner attempted to sexually assault

Complainant (acting with the requisite knowledge and employing

strong compulsion as required to convict of that offense) but

never completed the acts of touching her genitals and breasts or

putting his mouth on her breasts, which were the acquitted acts

upon which the offenses were predicated.           Thus, based on the

indictment and evidence presented in this case, it may be

presumed that the jury decided in Petitioner’s first trial that

Petitioner did not actually touch Complainant’s genitals, as

charged in counts 1, 2, 3, and 22, touch her breasts, as charged

in counts 5, 6, 7, 8, and 9, or put his mouth on her breasts, as

charged in counts 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, and

21.

                                      2.

            During the second trial, Respondent nevertheless

introduced evidence that Petitioner touched Complainant’s

genitals33 and breasts, and that he put his mouth on her breasts.

      32
            Assuming arguendo, any ambiguity about the presence of strong
compulsion in connection with Petitioner’s alleged acts of the touching of
Complainant’s genitals, this would seemingly apply “realism and rationality,”
Ashe, 397 U.S. at 444, in squaring the acquittal verdicts with the convictions
for Attempted Sexual Assault in the First Degree and Kidnapping.

      33
            In its case-in-chief, Respondent adduced testimony from
Complainant regarding four specific instances in which Petitioner touched what
Complainant specifically referred to as her “outer labia.” Complainant stated
                                                                 (continued...)

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Respondent argued to the jury that the act of touching

Complainant’s genitals was a substantial step necessary to

complete the offense of Attempted Sexual Assault in the First

Degree.   Respondent also apparently contended that all three acts

were relevant to establish Petitioner’s state of mind with

respect to that offense.

            However, the jury decided these issues in the

Petitioner’s “favor by reason of the jury’s partial acquittal on

other counts [in the first trial].”         See United States v. Bailin,

977 F.2d 270, 276 (7th Cir. 1992) (holding that collateral

estoppel applies when a defendant faces a new trial on counts

subject to a mistrial and the defendant was acquitted of other

counts in the original trial); see also Yeager v. United States,

557 U.S. 110, 120 (2009) (holding that “the reasoning in Ashe is

controlling” when a “case involves an acquittal on some counts




      33
        (...continued)
that she had fallen asleep and when she awoke Petitioner’s hand “had already
gone up the bottom of [her] dress” and he was “touching [her] outer labia.”
She indicated that she fell back asleep and awoke once again with Petitioner’s
hand “up [her] dress and under the waistband of [her] panties and trying to go
further down and touching the outer labia area.” She testified that she went
back asleep, believing everything was clear to Petitioner, but Petitioner
again touched her “outer labia[.]” Complainant said he told her to get
undressed and again placed his hand “under the waistband of her underwear and
over her outer labia area.”
             Respondent asked Complainant, “When you mention the outer labia,
that is the part that’s on the outside or your vaginal area?” Complainant
answered affirmatively. Respondent then asked, “[so you] mention he started
touching and kissing your breasts and then he groped and his hand was under
your waistband, over the outer labia, close to your vaginal area?”
Complainant again answered in the affirmative. When Respondent asked
Complainant to explained what she meant by grope, Complainant explained,
“Going under the waistband of my panties. . . . And touching the outer
labia.”

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and a mistrial on others”).      Applying collateral estoppel,

Petitioner’s alleged touching of Complainant’s genitals and

breasts and the placing of his mouth on her breasts could

therefore not be relitigated before the second jury.            See Ashe,

397 U.S. at 447.    It is apparent that under Ashe, Respondent’s

attempt to use the acts of which Petitioner was acquitted to

establish beyond a reasonable doubt that Petitioner committed a

substantial step toward the commission of Sexual Assault in the

First Degree was prohibited by the first jury’s prior

determination in favor of Petitioner to the effect that these

acts did not occur.     The court therefore erred in allowing

Respondent to use evidence of these acts to establish a

substantial step toward the commission of the subject offenses.

          Respondent also argues that the acts were relevant to

show Petitioner’s intent.      Again, applying the rational jury

standard established in Ashe, the jury in the first trial had

already decided that Petitioner did not commit the acts of

touching Complainant’s genitals and breasts or of placing his

mouth on her breasts.     Ashe does not differentiate between the

use of acts to establish an element of the offense beyond a

reasonable doubt and their introduction under a lower standard of

proof pursuant to the rules of evidence.         Id. at 443.     As Ashe

maintained, “‘[i]t is much too late to suggest that this

principle [of collateral estoppel] is not fully applicable to a



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former judgment in a criminal case, . . . because the judgment

may reflect only a belief that the Government had not met the

higher burden of proof [beyond a reasonable doubt] exacted in

such cases[.]’”     Id. (quoting United States v. Kramer, 289 F.2d

909, 913 (1961)).     Therefore, the acts of which Petitioner was

acquitted should have been excluded from trial.            The conviction

for Attempted Sexual Assault in the First Degree must be vacated

and the case remanded with instructions that evidence of the

acquitted acts must be excluded in any retrial.34

                                     B.

            To prove that Petitioner committed Kidnapping, HRS §

707-720(1)(d), Respondent had to establish that Petitioner

“intentionally or knowingly restrain[ed Complainant], with the

intent to inflict bodily injury upon her or subject her to a

sexual offense[.]”      (Emphasis added.)     It appears that in this

case, Respondent attempted to show that Petitioner intended both

to inflict bodily injury and to subject Complainant to a sexual




      34
            In State v. Lemalu, 72 Haw. 130, 809 P.2d 442 (1991), under the
driving under the influence of intoxicating liquor statute in existence at the
time, HRS § 291-4(a) (1985), the State could prove a violation through two
alternative sections of the statute, HRS § 291-4(a)(1) and HRS § 291-4(a)(2).
Lemalu noted that prior cases had held that an acquittal on either section
(a)(1) or section (a)(2) was an acquittal “in form only,” and did not
constitute an acquittal on the HRS § 291-4(a) charge as a whole. Id. at 139,
809 P.2d at 447. When an acquittal was “in form only,” Lemalu held that
double jeopardy concerns were not implicated, and, therefore, the State could
retry a defendant based on the section of the statute subject to the judgment
of acquittal. Id. Lemalu is inconsistent with our holding that once an
acquittal is based on a finding that the defendant did not commit certain
acts, collateral estoppel prevents the prosecution from introducing evidence
of those acts in a subsequent trial.

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offense.    Respondent argued this to the jury in closing argument.
            Kidnapping. This is important. Did he intentionally
            restrain [Petitioner] to inflict bodily injury or subject
            her to a sexual offense. Restrain means to do so or
            interfere with her liberty by means of force, threat or
            deception. Again, clearly, he deceived her into locking the
            doors [of the vehicle], [he] roll[ed] up the windows,
            grabbed her torso, held a knife to her throat, ordered her
            to take off her clothes, touched -- or attempted to touch
            her labia, licked her breast, asked her to touch his penis.
            She ran from his prison. He chased her, ripped her panties,
            tackled her to the ground. He had the knife. He’s hitting
            her body. He’s pushing her. She’s trying to get up. He’s
            shoving sand in her mouth to prevent her from yelling for
            help until she’s finally able to run away from his grasp[.]

(Emphasis added).

            As is evident, Respondent relied on acts of which

Petitioner was acquitted (placing his hand on Complainant’s

breasts or genitals, or his mouth on her genitals, or asking her

to touch his penis35) in order to make the case that Petitioner

had the intent to subject Complainant to a sexual assault.                But

as explained, supra, Respondent was barred from relying on those

acts under the Ashe rationale because the issue of whether




      35
            The same reasons, discussed supra, that demonstrate that a
rational jury must have found that Petitioner did not touch Complainant’s
breasts or genitals also demonstrate that the only basis on which a rational
jury could have acquitted Petitioner on the charge of Attempted Sexual Assault
in the Third Degree (Complainant’s hand on Petitioner’s penis) was that there
was a failure to prove that Petitioner ordered Complainant to touch his penis.
The only evidence presented to support this charge was Complainant’s testimony
that Petitioner told her to touch his penis. As discussed supra, the jury’s
other findings in the first trial preclude a determination that Complainant
was not subject to “strong compulsion.” Moreover, under the circumstances of
this case, the demand itself would constitute a substantial step in the
offense of Attempted Sexual Assault in the Third Degree. Because the
“substantial step” required to prove Attempted Sexual Assault in the Third
Degree would have been Petitioner’s demand, and the demand itself is evidence
of Petitioner’s intent, a rational jury could not have acquitted Petitioner
unless it found that the prosecution failed to prove beyond a reasonable doubt
that the demand was made.

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Petitioner had committed those acts had been finally resolved in

Petitioner’s favor by the acquittals in the first trial.             As

such, it was error for the court to allow Respondent to argue

that those acts established that Petitioner intended to sexually

assault Complainant.

            As noted, Respondent also argued to the jury that

Petitioner had the intent to inflict bodily injury.            It is

impossible to ascertain whether the jury relied on the intent to

commit sexual assault (which was predicated on the acts of which

Petitioner was acquitted) or the intent to inflict bodily injury.

Therefore, Petitioner’s conviction on the Kidnapping count must

be vacated and the case remanded due to the erroneous admission

of the sexual assault acts, as the jury may have relied on those

acts to convict Petitioner of Kidnapping.          Thus, on remand,

evidence of the acquitted sex assault acts must be excluded in

any retrial.36


      36
            Petitioner also argues that Respondent’s use of the acts of which
Petitioner was acquitted violated his right to due process. As noted by
Justice Brennan, according double jeopardy significance to an acquittal
“reflects both an institutional interest in preserving the finality of
judgments and a strong public interest in protecting individuals against
governmental overreaching.” Dowling, 493 U.S. at 355 (Brennan, J.,
dissenting). In State v. Perkins, 349 So. 2d 161, 162-63 (Fl. 1977), the
Florida Supreme Court held that under the Florida Constitution, it was
“fundamentally unfair to a defendant to admit evidence of acquitted crimes.”
            That court has since reaffirmed its holding in Perkins. See Burr
v. State, 576 So. 2d 278 (Fl. 1991) (clarifying that Perkins was based on an
independent state law ground after a remand from the United States Supreme
Court for the Supreme Court of Florida to reconsider its decision in light of
Dowling); see also State v. Shropshire, 45 S.W.3d 64 (Tenn. Crim. App. 2000)
(holding that “an acquittal precludes the possibility of an inference that the
defendant committed the crime”). Petitioner should not be compelled to
relitigate issues that were already decided in his favor by a prior jury. To
burden Petitioner with the necessity of mounting a second defense to charges
                                                                 (continued...)

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                                      X.

            The count charging Attempted Assault in the Second

Degree, HRS §§ 705-500 and 707-710 (count 3, renumbered from

count 27), alleged Petitioner “intentionally engaged in conduct,

which, under the circumstances as he believed them to be,

constituted a substantial step in a course of conduct intended or

known to cause serious bodily injury to [Complainant[.]”             The

count charging Assault in the Third Degree, HRS § 707-712 (count

4, renumbered from count 25), alleged Petitioner “intentionally,

knowingly, or recklessly cause[d] bodily injury to

[Complainant.]”     In its closing argument, Respondent stated that

the attempted assault charge was based on Petitioner’s conduct of

“putting sand and fingers down [Complainant’s] throat[.]”

Respondent stated that the assault charge was based on the “act

of hitting [Complainant’s] back and [] ribs[.]”            Respondent did

not reference any of the acquitted counts.

            Additionally, Petitioner did not argue on appeal to the

ICA or in his Application that any of the acts of which he was

acquitted were offered in support of the attempted assault and

assault counts.     Because none of the acquitted counts supported

Petitioner’s convictions for the included offense of Assault in

the Third Degree (count 3, renumbered from count 27) and Assault



      36
        (...continued)
of which he was acquitted would be fundamentally unfair and could result in a
miscarriage of justice.

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in the Third Degree (count 4, renumbered from count 25), and

Petitioner makes no other meritorious arguments regarding those

counts, convictions as to these counts are affirmed.37

                                       XI.

                In light of the likelihood of retrial, we address

Petitioner’s third and fourth questions.

                Petitioner’s third question concerned his alleged

voluntary release of Complainant in connection with the

kidnapping charge.        Defense counsel asked Complainant on cross-

examination, “What was [Petitioner] doing when he agreed to let

you go[?]”        Respondent objected on the ground that the question

misstated the evidence as assuming Petitioner “let [Complainant]

go.”        The court sustained the objection and directed Petitioner

to rephrase the question.         Petitioner contends first that he was

improperly limited by the court because there was testimony that

could be construed as evidence that Petitioner “physically let

[Complainant] go” and second that although the court permitted


       37
            In his Application, Petitioner argues in the alternative that, if
evidence of acquitted acts was admissible, the jury must be informed that he
had been acquitted of those acts. To dispel the notion that this would be an
adequate remedy, it is noted that when acquitted acts are admitted for
evidentiary purposes, there is a greater possibility the jury may conclude the
defendant committed those acts. Dowling, 493 U.S. at 362 (Brennan J.,
dissenting). Even if the jury is informed of the acquittals, “[t]here is no
guarantee that the jury will give any weight to the acquittal[s]; the jury may
disregard [them] or even conclude that the first jury made a mistake.” Id.
n.5. Because a jury may convict a defendant based in part on those acts of
which he had already been acquitted, the defendant would be compelled to
present affirmative evidence to defend against the very acts for which he had
been previously found not guilty. Id. at 362. It is apparent, then, that an
instruction informing the jury that the defendant has been acquitted of acts
introduced in a second trial is insufficient to protect the defendant from
having to relitigate issues that were already decided in his favor.

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him to rephrase the question, he was “never able to fully explore

the issue of voluntary release[.]”

            As to Petitioner’s first contention, he states that

Complainant testified that at some point during the struggle

between them, Complainant told Petitioner, “I’ll stay and, and as

proof, I’ll remove my sandals.”       She testified that Petitioner

“believe[d her] and let[] go and back[ed] up a tiny bit.”

Complainant related that Petitioner let go of her only after she

had attempted to flee, that Petitioner caught up with her, that

they began struggling, and that Complainant agreed she would not

run away.    In that light, the court cannot be said to have abused

its discretion in sustaining Respondent’s objection because the

question implied as a matter of fact that Petitioner had

voluntarily agreed to release Complainant.         See State v. Jackson,

81 Hawai#i 39, 47, 912 P.2d 71, 79 (1996) (“The scope and extent

of cross and recross-examination of a witness is within the sound

discretion of the trial judge.”).

            As to Petitioner’s second contention, he claims the

court limited his right to cross-examine Complainant.            However,

the court permitted Petitioner to “rephrase” his question

regarding “let[ting] complainant go.”        But instead of asking more

questions on the issue, Petitioner asked only, “Was I chasing

[you] after you left?”      Complainant responded, “After I had

taken off my sandals, I did not look behind me to make sure if

you were chasing me or not.”       Petitioner then asked whether

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Complainant had “walked up to the hotel area[.]”           But when

Complainant answered, “No, I ran as fast as I could[,]”

Petitioner terminated cross-examination regarding the issue of

voluntary release.    Consequently, Petitioner’s right to

confrontation was not violated.       See State v. Jackson, 81 Hawai#i

at 47-48, 912 P.2d at 79-80 (concluding that the defendant’s

right to confrontation was not violated “given that defense

counsel voluntarily terminated the recross-examination because

the intended line of questioning became redundant”).

                                    XII.

                                     A.

            As to Petitioner’s fourth question, during Wall’s

testimony, Wall referred to Complainant as the “victim.”            When

Petitioner objected, on the ground that Wall was “making a

conclusion[,]” the court sustained Petitioner’s objection.

During Officer Caires’ testimony, the officer indicated that he

returned the items he recovered “to the victim.”            Respondent

asked, “And the victim was able to identify both of the items as

belonging to her?”    Petitioner again objected, urging that it had

already been agreed that Respondent would not use the term

“victim.”   Petitioner noted before the ICA that Respondent

referred to Complainant as “the victim” during the questioning of

two other officers as well.      The court overruled Petitioner’s

objections to these references.



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               Petitioner maintains that Respondent’s references to

Complainant as the “victim” were “‘incompatible with the

presumption of innocence’” and violated his right to due process.

(Quoting Jackson v. State, 600 A.2d 21, 25 (Del. 1991).)              He

urges that the ICA’s reliance on Nomura, was misplaced because

unlike in Nomura, here, the court’s instruction regarding the

presumption of innocence, did not “defuse[] the bias resulting

from . . . referring to [Complainant] in a manner suggestive of

[Petitioner’s] guilt.”

                                       B.

            Petitioner challenges only Respondent’s use of the

term.    In Jackson v. State, the Supreme Court of Delaware stated

that “the word ‘victim’ should not be used in a case where the

commission of a crime is in dispute.”          600 A.2d at 24.      That

court stated, however, that because the defendant failed to

object to the prosecution’s use of the word, the defendant was

required to establish plain error.          Jackson v. State held that

plain error was not committed because such use “occurred during

the direct examination of a police officer and F.B.I. hair

expert,” and to law enforcement officers, the term “victim” “is a

term of art synonymous with ‘complaining witness.’”             Id. at 24-

25.

            However, in Nomura, the ICA stated that “the term

‘victim’ is conclusive in nature and connotes a predetermination

that the person referred to had in fact been wronged.”              79 Hawai#i

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at 416, 903 P.2d at 721.      There, one of the jury instructions

referred to the complaining witness as “the victim.”            Id.   Nomura

concluded that, because “the question of whether [the complaining

witness] had been abused was a question yet to be decided by the

jury, it was improper to refer to her as “the victim.”            Id.

            The instant case does not involve the use of the term

“victim” in the jury instructions.        However, Nomura also found

the jury instruction problematic because the trial court must

instruct the jury on the law but may not comment upon the

evidence.    Id. at 417, 903 P.2d at 722.       Nomura explained that

such a rule derives from the principle that the trial judge must

endeavor at all times to maintain an attitude of fairness and

impartiality.    Id.   The use of the term was also wrong in light

of this principle, because the trial court could have used the

term “complaining witness” or referred to her by name to avoid

the appearance of partiality.       Id. at 416-17, 903 P.2d at 721-22.

The presumption of innocence and the maintenance of fairness and

impartiality during the trial are precepts underlying Nomura.

Hence, the court erred in allowing Respondent and the witnesses

to refer to Complainant as “the victim.

                                     C.

            Contrary to the conclusion of the Supreme Court of

Delaware, see Jackson v. State, 600 A.2d at 24-25, it is not

evident that police officers generally use the term “victim” to



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refer to a complaining witnesses in police reports or when

otherwise referring to a person making a complaint against

another person.    It would seem, in light of Nomura, that unless

there are good reasons found by the court for permitting

otherwise, the court should instruct all counsel that they and

their witnesses must refrain from using the term.

          Notwithstanding the court’s error, the use of the term

“victim” in the limited circumstances of this case was not

prejudicial to Petitioner and, hence, does not itself warrant

reversal of his convictions.       See Nomura, 79 Hawai#i at 416, 903

P.2d at 721-22.    However, it “is incompatible with the

presumption of innocence for the prosecution to refer to the

complaining witness as the ‘victim,’ just as it is to refer to

the defendant as a ‘criminal.’”       Jackson II, 600 A.2d at 21

(motion for clarification).      Thus, on remand, this admonition

should be heeded.

                                   XIII.

          We reach Petitioner’s fifth question, because this is

an issue that may recur with respect to counts one and two and

may have affected the sentences on counts three and four.             During

the sentencing hearing on October 13, 2010, Respondent referenced

State v. Vinhaca, 124 Hawai#i 128, 237 P.3d 1194 (2010).            The

court acknowledged that it had presided over the Vinhaca case and

Petitioner was “in the same category.”
          This Court presided over [Vinhaca] and did, in fact,


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          sentence the defendant in that case to consecutive
          sentencing. . . . [Petitioner], given this Court’s
          familiarity with the Vinhaca case and your case, this Court
          places you in the same category as Mr. Vinhaca in terms of
          the need for consecutive sentencing.

(Emphasis added.)    During the discussion of the Vinhaca case,

Petitioner’s counsel stated he did not know about the case.                As

recounted, the ICA concluded that the court did not err in

comparing Petitioner’s crimes to Vinhaca’s crimes or in imposing

an extended sentence, because (HRS) § 706-606(4) allows the court
to consider other defendants in similar positions when imposing a

sentence, insofar as it directs the court to consider the “need

to avoid unwarranted sentence disparities among defendants with

similar records who have been found guilty of similar conduct.”

Mundon II, 2012 WL 1473433, at *5         (quoting HRS § 706-606(4)).

          However, it is assumed that the sentencing

considerations concerning Vinhaca were an essential part of

Vinhaca’s pre-sentence report and were used by the court in

sentencing Vinhaca.     See HRS § 706-601(1) (“[T]he court shall

order a pre-sentence correctional diagnosis and accord due

consideration to a written report of the diagnosis before

imposing sentence.”); see also HRS § 706-602(1) (requiring the

pre-sentence report to set forth, inter alia, the circumstances

surrounding the crime, the defendant’s criminal history, and the

effect of the crime on the victim).         That pre-sentence report was

also available, presumably, to Respondent.         However, such

information was not available to Petitioner in his own case, nor


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should it have been.        See HRS § 806-73(b)(3)38 (limiting the

distribution of pre-sentence reports); see also State v. Hussein;

122 Hawai#i 495, 523, 229 P.3d 313, 341 (2010) (“Under HRS § 806-

73, then, the [pre-sentence reports] are manifestly subject to

restricted dissemination, and are not to be made available for

all to use.”) (citations omitted).            Yet, Petitioner is entitled


      38
            HRS § 806-73 provides in relevant part as follows:

            § 806-73    Duties and Powers of Probation Officers, Adult Probation
            Records

                    . . .

                  (b) All adult probation records shall be confidential
            and shall not be deemed to be public records. As used in
            this section, the term “records” includes but is not limited
            to all records made by any adult probation officer in the
            course of performing the probation officer's official
            duties. The records, or the content of the records, shall be
            divulged only as follows:
                  (3) A copy of a presentence report or investigative
            report shall be provided only to:

            (A) The persons or entities named in section 706-604;

            (B) The Hawai#i paroling authority;

            (C) Any psychiatrist, psychologist, or other treatment
            practitioner who is treating the defendant pursuant to a
            court order or parole order for that treatment;

            (D) The intake service centers;

            (E) In accordance with applicable law, persons or entities
            doing research; and

            (F) Any Hawai#i state adult probation officer or adult
            probation officer of another state or federal jurisdiction
            who:

                    (i) Is engaged in the supervision of a defendant or
                    offender convicted and sentenced in the courts of
                    Hawai#i; or

                    (ii) Is engaged in the preparation of a report for a
                    court regarding a defendant or offender convicted and
                    sentenced in the courts of Hawai#i.

(Emphases added.)

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to “‘have access to all factual information used in sentencing.’”

State v. Durham, 125 Hawai#i 114, 122, 254 P.3d 425, 433 (2011)

(quoting State v. Paaaina, 67 Haw. 408, 411, 689 P.2d 754, 757

(1984)).

             Inasmuch as the court apparently relied on sentencing

information in the Vinhaca case, none of which was available to

Petitioner, the court erred in imposing a consecutive sentence

based on the court’s “familiarity with that case.”             The court

cannot base its sentence on information not available to the

defendant.     Thus, under the circumstances, the consideration by

the court of a specific individual as a measuring standard for

sentencing Petitioner was in error.          Moreover, it does not appear

that the conduct involved in Vinhaca was similar to Petitioner’s

case.39

             The ICA did state that the court considered other

matters.40    However, it cannot be said that the court’s error in


      39
            As Petitioner observes, in Vinhaca, there were “more victims
[two], who were younger [minors] and more closely related to [defendant]
[biological daughters].” Vinhaca’s offenses “were greater in number, more
intrusive and occurred over a longer period of time.” Petitioner argues that
“[t]he only apparent similarities are conviction for sex offense[s] and [the]
Sentencing Judge.”

      40
             The ICA noted that the court reviewed

             the overall facts of the kidnapping/sexual assault incident;
             Petitioner’s history of criminality, including the fact that he
             committed the subject offenses while still on probation for an
             assault conviction; that previous rehabilitation efforts have not
             been effective; that Petitioner has not taken responsibility for
             his failure while on probation; that Petitioner preyed on
             Complainant’s vulnerability; and Petitioner’s attempts to minimize
             the fact that he merely subjected his wife, as opposed to someone
             in the community at large, to acts of abuse.
                                                                  (continued...)

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relying on Vinhaca was harmless. Here, the court “presided over

the [Vinhaca] trial and did, in fact, sentence the defendant in

that case to consecutive sentencing.”         To reiterate, when

sentencing Petitioner, the court indicated that “given this

[c]ourt’s familiarity with the Vinhaca case and [Petitioner’s]

case, this [c]ourt places [Petitioner] in the same category as

Mr. Vinhaca in terms of the need for consecutive sentencing.”

The court acknowledged that it had not imposed consecutive

sentencing on all “other defendants who have come before [the

court] with . . . similar types of crimes to be sentenced[,]” but

that it felt that Petitioner deserved consecutive sentencing

based on his similarity to Vinhaca.         Inasmuch as we vacate the

convictions in counts one and two, the sentences therein are also

vacated; although, as noted, we answer Petitioner’s fifth

question because the issue may recur.         Moreover, with respect to

the convictions on counts three and four, which we affirm, there

is a reasonable possibility that the error in relying on the

Vinhaca case, might have contributed to Petitioner’s sentences in

counts three and four.      Accordingly, we vacate the sentences in

those counts.

                                     XIV.

            For the reasons stated, we (1) vacate Petitioner’s

convictions as to Count 1, Attempted Sexual Assault in the First


      40
       (...continued)
Mundon II, 2012 WL 1473433, at *5.

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Degree, and Count 2, Kidnapping; (2) affirm Petitioner’s

convictions as to Count 3, Assault in the Third Degree, and Count

4, Assault in the Third Degree; and (3) vacate Petitioner’s

sentence in Counts 3 and 4.      We remand the case to the court for

a new trial on Counts 1 and 2 and for resentencing on Counts 3

and 4.

Stuart N. Fujioka,                   /s/ Paula A. Nakayama
for petitioner
                                     /s/ Simeon R. Acoba, Jr.
Charles A. Foster,
for respondent                       /s/ Sabrina, S. McKenna

                                     /s/ Richard W. Pollack

                                     /s/ Rhonda A. Nishimura




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