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                                                              Electronically Filed
                                                              Supreme Court
                                                              SCWC-11-0000073
                                                              08-AUG-2012
                                                              09:47 AM




           IN THE SUPREME COURT OF THE STATE OF HAWAI#I

                                ---o0o---


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

                                    vs.

       DONALD LEVELL, JR., Petitioner/Defendant-Appellant.


                          NO. SCWC-11-0000073

         CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
         (ICA NO. CAAP-11-0000073; CASE NO. 1P110-10648)

                             August 8, 2012

     RECKTENWALD, C.J., NAKAYAMA, ACOBA, AND MCKENNA, JJ.,
  AND CIRCUIT JUDGE CASTAGNETTI, IN PLACE OF DUFFY, J., RECUSED

                  OPINION OF THE COURT BY ACOBA, J.

          We hold that (1) the refusal of the District Court of

the First Circuit (the court) to allow Petitioner/Plaintiff-

Appellant Donald Levell, Jr. (Petitioner) to cross-examine Malia

Avila (Complainant) regarding whether she had stolen his credit

cards and used them after the alleged incident for which
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Petitioner was tried violated Petitioner’s right to confrontation

guaranteed by article I, section 14 of the Hawai#i Constitution1;

(2) Complainant’s acts, if believed by the trier of fact, might

establish her motive to fabricate claims against Petitioner or to

testify falsely against Petitioner at trial; and (3) the court’s

error was not harmless beyond a reasonable doubt.            We therefore

vacate the March 2, 2012 judgment filed by the Intermediate Court
of Appeals (ICA) pursuant to its February 14, 2012 Summary

Disposition Order (SDO)2, affirming the court’s January 12, 2011

Judgment convicting Petitioner of Harassment, Hawai#i Revised

Statutes (HRS) § 711-1106(1)(a)3, and remand for a new trial.

                                     I.

            On October 26, 2012, Petitioner was charged by

Respondent/Plaintiff-Appellee State of Hawai#i (Respondent) with

Harassment, for allegedly shoving Complainant and thereby




      1
            Haw. Const. art I, § 14 provides in relevant part:

            Section 14. In all criminal prosecutions, the accused shall
            enjoy the right to . . . to be confronted with the witnesses
            against the accused[.]


      2
            The SDO was filed by Presiding Judge Daniel R. Foley, the
Honorable Lawrence M. Reifurth, and the Honorable Lisa M. Ginoza.

      3
            HRS § 711-1106(1)(a) (Supp. 2010) provides:

            Harassment.

              (1) A person commits the offense of harassment if, with intent
            to harass, annoy, or alarm any other person, that person:

               (a) Strikes, shoves, kicks, or otherwise touches another
            person in an offensive manner or subjects the other person to
            offensive physical contact.

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subjecting her to offensive physical contact.             Petitioner’s bench

trial was held on January 12, 2011.4

             Prior to the commencement of trial, Petitioner moved

under Hawai#i Rules of Evidence (HRE) 404(b)5 for permission to

cross-examine Complainant on whether she had stolen Petitioner’s

credit cards6 and used them after he was arrested.             Petitioner

argued that the unauthorized use of the credit cards was relevant
to prove Complainant’s motive to accuse Petitioner of the charged

incident and to testify falsely against him at trial.              Petitioner

contended that the evidence was not highly prejudicial, and that

any prejudice was outweighed by the probative value of the

evidence.7    Respondent opposed Petitioner’s request on the

grounds that Petitioner’s claim that Complainant stole his credit



      4
             The Honorable Faye Koyanagi presided.

      5
             Hawai#i Rules of Evidence 404(b) provides:

             (b) Other crimes, wrongs, or acts. Evidence of other crimes,
             wrongs, or acts is not admissible to prove the character of
             a person in order to show action in conformity therewith. It
             may, however, be admissible where such evidence is probative
             of another fact that is of consequence to the determination
             of the action, such as proof of motive, opportunity, intent,
             preparation, plan, knowledge, identity, modus operandi, or
             absence of mistake or accident. In criminal cases, the
             proponent of evidence to be offered under this subsection
             shall provide reasonable notice in advance of trial, or
             during trial if the court excuses pretrial notice on good
             cause shown, of the date, location, and general nature of
             any such evidence it intends to introduce at trial.

      6
            Petitioner uses “credit cards” and “debit cards” interchangeably.
This opinion refers to the items allegedly stolen as “credit cards.”

      7
            HRE Rule 403 provides that “[a]lthough relevant, evidence may be
excluded if its probative value is substantially outweighed by the danger of
unfair prejudice, confusion of the issues, or misleading the jury, or by
considerations of undue delay, waste of time, or needless presentation of
cumulative evidence.”

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cards was just an allegation and had no bearing on whether

Petitioner committed the charged offense.         Respondent also stated

that the alleged theft was “being investigated up [until] five

minutes ago in which the [Petitioner] apparently was talking to

the police about it.”

          The court ruled in favor of Respondent, stating that

it would not allow cross-examination as to the credit card theft
because that issue was “not relevant to the elements of the

harassment on the date on which it occurred.”          Also, according to

the court, although the alleged theft might go to motive, it was

highly prejudicial to the Complainant, “especially in light of

the fact that [it was] currently being investigated[,]” and that

cross-examination might cause Complainant to violate her right

against self-incrimination.

          At trial, the testimony of the parties established that

at the time of the alleged offense, Petitioner had been living in

an apartment located in Waikiki for approximately ten years.
About a month prior to the alleged incident of harassment,

Petitioner met Complainant as he was walking along the beach.

Petitioner invited Complainant for dinner at his apartment.

          Complainant told Petitioner that she did not have a

place to stay because her father was sick in the hospital, and

she had just moved to Hawai#i from Las Vegas.         Petitioner invited

Complainant to stay at his apartment.        Complainant acknowledged

that she did not have a place to live when she met Petitioner,


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and that she resided at Petitioner’s apartment without paying

rent.    Complainant referred to Petitioner as her boyfriend.

            When Complainant moved in with Petitioner, she did not

have a cell phone.    According to Petitioner, Complainant told him

that she had lost her cell phone on a bus.         Since Petitioner had

three phones, an “IPhone” and two “Motorola” phones, Petitioner

allowed Complainant to have one of his Motorola phones.
Complainant claimed that Petitioner “gave” her the phone;

Petitioner claimed that he only allowed Complainant to use the

phone.

            At about 6:00 p.m. on October 25, 2010, Complainant

arrived at Petitioner’s apartment from work.          According to

Complainant, when she arrived, Petitioner was drinking an

alcoholic beverage.     Petitioner then approached Complainant with

a cell phone, in order to transfer the “SIM” card in her phone to

his phone.    Complainant went to the bathroom, and while she was

in the bathroom, Petitioner took the SIM card from her phone and
put it in his phone.     When Complainant came out of the bathroom,

she asked Petitioner for the SIM card, but Petitioner refused to

return it to her.

            According to Complainant, she asked for the SIM card

again, and Petitioner stood up, walked towards her, and pushed

her in the chest with his open palms.        Complainant fell and hit

her back and rib area on a rattan chair that was next to her.

Complainant had no visible injuries as a result of the incident.


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           Complainant then got up, told Petitioner that she was

going to call the police, went “downstairs,” and called the

police from the “security’s phone.”        Complainant claimed that she

was not carrying a cell phone at that point.          When the police

arrived, Complainant gave them a statement.          Petitioner then came

downstairs, and the police arrested him.         According to

Complainant, she returned to the apartment that evening with the
police in order to retrieve her belongings and never returned to

the apartment or saw Petitioner again until the day of trial.

           On cross-examination, Petitioner’s counsel asked

Complainant about the incident involving the phone.           Complainant

admitted that when Petitioner exchanged the SIM card from her

phone to the second phone, Petitioner gave her the second phone.

Complainant, however, was upset because she wanted the phone

Petitioner had originally given to her.         Complainant then asked

Petitioner several times to return her phone.          Petitioner said

that he was not going to give Complainant the phone and that she
could use the second phone.      Complainant then asked for her phone

again.   Complainant testified that Petitioner then stood up and

shoved her.

           Near the end of cross-examination, Petitioner’s counsel

again asked the court for permission to ask Complainant if she

had used Petitioner’s credit cards after he was arrested.

Petitioner’s counsel told the court that the questions were

relevant to “the motive of her lying, making this whole story up


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. . . It is highly relevant to . . . our defense and not

outweighed by prejudice.”         Petitioner’s counsel stated that

Complainant “can simply deny the allegation.             But I have the

right to ask her that.”        Respondent objected “as to relevance[,]”

and because there was “an allusion to a conspiracy to get

[Petitioner] arrested to get him out of the apartment that I

don’t believe the defense has any basis for[.]”              Respondent asked
the court to advise Complainant of her right not to incriminate

herself.

             The court denied Petitioner’s request stating, “[I am]

not going to allow counsel to ask [Complainant] what she took

from the apartment.        It’s alluding again to the theft of the

credit cards.      And it’s based on the same rule as before.            It’s

not relevant and prejudicial.”          Petitioner then moved for a

directed verdict, but the court denied the motion.

             Petitioner then testified as to his recollection of the

events of October 25, 2010.         According to Petitioner, when
Complainant arrived at his apartment around 6:00 p.m. he was

sitting on a stool in the bathroom.           Petitioner asked Complainant

if she would take the SIM card out of her phone and give it to

him.    Petitioner then took the SIM card and put it in another

Motorola phone, called the phone from his IPhone to make sure the

Motorola phone worked, and gave Complainant the working phone.

Complainant was not satisfied and asked Petitioner to return her

original phone.       Complainant then took both phones and left.


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            When Petitioner came out of the bathroom, Complainant

was gone.    Petitioner then went “downstairs” to find her.

Petitioner stated that Complainant had called the police from the

apartment.    When Petitioner went “downstairs,” he saw that

Complainant was talking to several police officers.           Petitioner

walked over to the officers and said, “I’m probably the gentleman

that you -- that you’re looking for, ‘cause I was trying to find
out what -- you know, what the problem is, what’s going on, what

-- what they were called for.”       Petitioner testified that an

officer grabbed him, handcuffed him, and shoved him into the back

of a squad car.

            Petitioner claimed that he “never put [his] hands on

[Complainant], never -- never had any physical contact with her

or any other woman in my life.”       At the time of trial, Petitioner

walked with a cane because his knee had been replaced and he

needed back surgery.     Petitioner explained that he had had carpal

tunnel surgery two weeks before the alleged incident with
Complainant and could not “grip or hold anything” because “[j]ust

a little touch was painful.”

            On cross-examination, Petitioner testified that the

conversation regarding the phones was the only conversation he

had with Complainant that night.         Petitioner also related that

one of the reasons he went “downstairs” to look for Petitioner

was that he was going to tell her that he did not want her to

stay at the apartment anymore.       When Respondent asked Petitioner


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whether he was going to “kick” Complainant out of the apartment

“solely because [of] the cell phone thing,” Petitioner answered,

“No. I had a -- I had already noticed that she had been stealing

from me--”   Respondent objected and the court sustained the

objection.

          In its closing argument, Respondent emphasized that

Complainant was credible and that the shove was a result of the
tension that had built up between Petitioner and Complainant.

Petitioner’s counsel argued that the details of Complainant’s

testimony did not “add up” and that she “clearly made up this

allegation to get [Petitioner] arrested so she could remain

staying at this place, where she’s not paying rent.”            Respondent

replied that the evidence showed that Complainant had not been

back to the apartment.

                                   II.

          After the court heard the parties’ closing arguments,

it found Petitioner guilty, stating:
                      Based on the evidence presented and viewing the
          credibility of the witnesses, the court is going to find that
          [Respondent] has proven its case beyond a reasonable doubt as to
          each and every element.

                      Although the testimony is diametrically opposed as to
          whether or not there was an offensive touching, I believe the
          credibility of the complaining witness was more credible than that
          of the [Petitioner].

                      One damaging or incriminating statement made by
          [Petitioner] was when he went down to see the police he said and
          told them I am the gentleman you’re looking for. Which means
          something illegal or criminal had occurred in the apartment prior.

                      The biomechanics of the fall is consistent with
          [Complainant’s] rendition of it. She was shoved. Perhaps seeing
          both open palms, not knowing exactly which force was greater, she
          did say she fell onto the bed first, which could then mean that
          she angled her body as she fell onto the floor and chair.


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                      She did point to the left side of her shoulder when
          she said she had her purse there, which is consistent with where
          the purse would have ended up.

(Emphases added.)

                                  III.

          The ICA affirmed Petitioner’s conviction.           In its SDO,

the ICA stated, inter alia, as follows:
                      Introduction of Complainant’s alleged credit
          card theft from [Petitioner] after the alleged harassment
          occurred was subject to exclusion by HRE Rule 403 after a
          “cost-benefit calculus and a delicate balance between
          probative value and prejudicial effect.” State v.
          Balisbisana, 83 Hawai#i 109, 114, 924 P.2d 1215, 1220
          (1996)(internal quotation marks and citations omitted)).
          “Exclusion of relevant evidence is reviewed for an abuse of
          discretion.” State v. Cordeiro, 99 Hawai#i 390, 404, 56
          P.3d 692, 706 (2002)). . . . In the instant case, there was
          not abuse of discretion in prohibiting [Petitioner] from
          raising Complainant’s alleged theft of his credit card after
          the alleged harassment occurred. . . .

                       Even if there was error by the district court,
          it was harmless because [Petitioner’s] own testimony
          provided substantial evidence in addition to Complainant’s
          testimony to support his conviction. See State v. Mars, 116
          Hawai#i 125, 139, 170 P.3d 861, 875 (App. 2007)).
          “[Petitioner] testified that he never had physical contact
          with Complainant on the day in question, and yet after
          Complainant left the apartment, he testified that he went
          downstairs, saw Complainant with a police officer and said
          ‘I’m probably the gentleman that you -- that you’re looking
          for[.]’.”

State v. Levell, No. CAAP–11–0000073, 2012 WL 456490, at *1 (Haw.

App. 2012).

                                    IV.

          On May 1, 2012, Petitioner filed an application for

writ of certiorari (Application), in which he listed the

following questions:
                1) Whether the ICA gravely erred in holding that the
          district court did not abuse its discretion in prohibiting
          [Petitioner] from raising the complainant’s alleged theft of his
          credit cards after the alleged harassment occurred.

                2)   Whether the ICA gravely erred in holding that even if


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          the district court erred, the error was harmless because
          [Petitioner’s] own testimony provided substantial evidence in
          addition to complainant’s testimony to support his conviction.

(Emphases added.)

          Respondent did not file a Response to the Application.

                                     V.

          In his Application, Petitioner argues that the court’s

refusal to allow Petitioner to introduce evidence of

Complainant’s acts to show bias, interest, or motive violated his

right to confrontation guaranteed by the sixth amendment to the

United States Constitution8 and article I, section 14 of the

Hawai#i Constitution.    Petitioner contends that the court should

have allowed him to introduce evidence relevant to Complainant’s

credibility and her bias, interest, and motive to fabricate her

claims pursuant to HRE Rules 404(b) and 609.1.9          Petitioner cites

to State v. Balisbisana, 83 Hawai#i 109, 115, 924 P2d 1215, 1221

(1996), and State v. Marcos, 106 Hawai#i 116, 121, 102 P.3d 360,

365 (2004).




     8
          U.S Const. amend. XI provides in relevant part:

          In all criminal prosecutions, the accused shall enjoy the
          right to . . . be confronted with the witnesses against
          him[.]

     9
          HRE Rule 609.1 provides:

          (a) General rule. The credibility of a witness may be
          attacked by evidence of bias, interest, or motive.

          (b) Extrinsic evidence of bias, interest, or motive.
          Extrinsic evidence of a witness' bias, interest, or motive
          is not admissible unless, on cross-examination, the matter
          is brought to the attention of the witness and the witness
          is afforded an opportunity to explain or deny the matter.

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           In Balisbisana, the defendant appealed from his

conviction of abuse of a family or household member, arguing that

his right to confrontation was violated when the trial court

excluded all references to the complaining witness’s conviction

for harassing the defendant.       83 Hawai#i at 112, 924 P.2d at

1218.   This court explained that evidence of bias, interest, or

motive may be excluded under HRE Rule 403 if its probative value
is substantially outweighed by the danger of unfair prejudice,

confusion of the issues, or misleading the jury, or by

considerations of undue delay, waste of time, or needless

presentation of cumulative evidence.        Balisbisana, 83 Hawai#i at

114, 924 P.2d at 1220.     However, the trial court's discretion

becomes operative “only after the constitutionally required

threshold level of inquiry has been afforded the defendant.”               Id.

(emphasis added).    Under the constitution, the confrontation

clause protects “[a]n accused’s right to demonstrate the bias or

motive of prosecution witnesses[,]” and “‘the exposure of a
witness’ motivation in testifying is a proper and important

function of the constitutionally protected right of cross

examination.’”    Balisbisana, 83 Hawai#i at 115, 924 P.2d at 1221

(quoting Delaware v. Van Arsdall, 475 U.S. 673, 678-79 (1986)).

Thus, Balisbisana held that the trial court’s prohibition of all

inquiry into the complaining witness’ conviction was an abuse of

discretion because, in the absence of that evidence, the jury did




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not have a sufficient basis from which to make an informed

apprisal of the complaining witness’s alleged bias and motive.

Id. at 116, 924 P.2d at 1222.

          In Marcos, this court considered whether the

defendant’s right to confrontation was violated when he was

barred from cross-examining the complaining witness about whether

“she had a motive to see that Petitioner was convicted in order
to assist her in a pending family court case concerning custody

of the minor child of Petitioner and the complainant.”            106

Hawai#i at 117, 102 P.3d at 361.       This court reaffirmed that the

defense should be allowed to “‘expose the fact from which the

jurors could appropriately draw inferences relating to the

complainant’s motive or bias.’”       Id. at 121, 102 P.3d at 365

(quoting Balisbisana, 83 Hawai#i at 115, 924 P.2d at 1221).             The

appropriate inquiry was “whether the jury had sufficient

information from which to make an informed appraisal of [the

complainant’s] motives and bias, absent evidence of her
conviction for harassing [the defendant].’”          Id. (quoting

Balisbisana, 83 Hawai#i at 116, 924 P.2d at 1222)).           Since the

defendant was prevented from cross-examining the complainant

regarding her motive to lie, the Marcos court concluded that the

defendant’s right to confrontation was violated.           Id. at 122, 102

P.2d at 366; see also Corella, 79 Hawai#i at 261-62, 900 P.2d at

1327-28 (disallowing cross-examination as to whether complaining




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witness lied about her contact with the defendant because she

feared jeopardizing her relationship with her boyfriend violated

the defendant’s right to confrontation).

                                   VI.

                                    A.

            It is established in this jurisdiction that “[b]ias,

interest, or motive is always relevant under HRE Rule 609.1.”
Estrada, 69 Haw. 204, 220, 738 P.2d 812, 823 (1987) (emphasis

added).    The degree to which evidence might tend to show possible

bias, interest, or motive is not the determining factor with

respect to admissibility of evidence under HRE Rule 609.1.

Rather, the relevant inquiry is whether such evidence has “any

tendency to support an inference of the witness’ disposition or

tendency, consciously or unconsciously, to slant testimony, one

way of the other, from the straight and true.”          Addison M.

Bowman, Hawai#i Rules of Evidence Manual (HRE Manual) §

609.1–[1][C] (2010-11 ed.) (emphasis added).          Once evidence has
been shown to be relevant to possible motive, interest, or bias,

“it is error not to allow cross-examination to reveal possible

bias.”    Estrada, 69 Haw. at 220, 738 P.2d at 823.

                                    B.

             In this case, the court prevented Petitioner from

cross-examining Complainant about the alleged theft because it

concluded that such testimony was not relevant and was outweighed




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by the danger of unfair prejudice to Complainant.10           But the

authorities cited above establish that evidence of witness bias

is relevant, and that the trial court’s discretion to exclude

evidence under HRE Rule 403 only becomes operative after the

threshold level of inquiry under the confrontation clause has

been afforded.     See Balisbisana, 83 Hawai#i at 114, 924 P.2d at

1220; Estrada, 69 Haw. at 220, 738 P.2d at 823.            As noted, supra,
the appropriate inquiry is whether the trier of fact had

sufficient information from which to make an informed appraisal

of the witness’s motives and bias.         See Balisbisana, 83 Hawai#i

at 116, 924 P.2d at 1222.

            Respondent’s case against Petitioner hinged on the

court’s willingness to believe Complainant’s testimony over

Petitioner’s version of the events, and Petitioner’s accusation

againt Complainant may have given her a motive to slant the

nature of her testimony against Petitioner.           Had Petitioner been

allowed to ask, he might have succeeded in eliciting testimony
from Complainant tending to show that she was biased or had a

motive to fabricate or exaggerate a story about harassment and to

testify falsely in court.       This, in turn, could have affected the




      10
            When Petitioner initially sought to ask Complainant about the
credit card incident, one of the reasons the court gave for not allowing the
testimony was that Complainant “might violate her right to self
incrimination.” However, although the court presumably would have advised
Complainant of her right against self-incrimination (in fact, Respondent asked
the court to advise Complainant of her rights), it is not clear whether
Complainant would have refused to give answers. In the absence of cross-
examination, whether Complainant would have asserted the right against self-
incrimination is entirely speculative.

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court’s view of Complainant’s credibility, and might have led the

court to conclude that Respondent had not proven its case.

Without evidence of Complainant’s potential bias or motive, the

court did not have a sufficient basis from which to make an

informed apprisal of Complainant’s credibility.           See Balisbisana,

83 Hawai#i at 116, 924 P.2d at 1222.        As such, Petitioner’s right

to confrontation was violated when the court prevented him from
cross-examining Complainant about the alleged credit card theft.

                                    C.

          Respondent nevertheless argues that the credit card

incident had very little probative value because the incident

occurred after Complainant accused Petitioner of harassment, and

thus Complainant would not have had a motive to falsely accuse

Petitioner of the prior incident of harassment.           The record is

not clear as to when the alleged theft of Petitioner’s credit

cards occurred.    But even assuming that Complainant took the

credit cards after she accused Petitioner of harassment, the
alleged theft could still have furnished a motive for Complainant

to slant or exaggerate her testimony at Petitioner’s trial.

Evidence about the theft could have been used to establish

Complainant’s motive to provide false testimony against

Petitioner in retaliation for his seeking her arrest.            As

recounted, supra, the court might have had a significantly

different impression of Complainant’s credibility had

Petitioner’s counsel been permitted to pursue his proposed line


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of cross-examination.     Therefore, Petitioner should have been

allowed to ask Complainant about the alleged theft.

                                    D.

          Respondent also contends that Petitioner’s right to

confrontation was not violated because the court had in its

possession sufficient information to apprise the biases and

motivations of Complainant.      According to Respondent, Petitioner
was given “considerable latitude” during cross-examination and

was able to argue to the court that Complainant fabricated the

harassment incident because she wanted to keep Petitioner’s cell

phone and stay in his apartment without paying rent.            However,

Petitioner’s theory was also that Complainant had a reason to

testify falsely or to slant her testimony against him because he

had accused her of stealing his credit cards.          The court was

unable to consider this potential bias or motive in weighing the

parties’ testimony because Petitioner was not allowed to cross-

examine Complainant as to the alleged theft.          To reiterate, the
relevant inquiry in deciding whether cross-examination should

have been allowed was whether the evidence had any tendency to

support an inference of the witness’s disposition or tendency,

consciously or unconsciously, to slant testimony, one way of the

other, from the straight and true.        HRE Manual § 609.1–[1][C];

see also Balisbisana, 83 Hawai#i at 114, 924 P.2d at 1220

(holding that the trial court has discretion to exclude evidence

of a witness’s bias or motive only after the constitutionally


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required threshold level of inquiry has been afforded the

defendant).   In this case, the court did not have in its

possession sufficient information to apprise itself of the

alleged bias and motivation of Complainant on what Petitioner

indicated was the source of such a bias or motivation--the

alleged credit card theft.      Thus, the court erred in precluding

cross-examination into the credit card incident.
                                   VII.

          Finally, Respondent maintains that any error by the

court was harmless beyond a reasonable doubt “due to the extent

of cross-examination otherwise permitted, the extremely limited

value of the proposed cross-examination, and the overall strength

of the prosecution’s case, including [Petitioner’s] admission

that he approached the police and told them without any prompting

‘I’m probably the gentleman . . . that you’re looking for[,]’

despite his claim that no altercation had occurred.           The ICA

similarly concluded that any error by the court in barring cross-
examination was harmless because Petitioner’s “own testimony

provided substantial evidence . . . to support his conviction[,]

since he testified that he told the police officers that “‘I’m

probably the gentleman that you -- that you’re looking for[.]’”

Levell, 2012 WL 456490, at *1.

          The “[d]enial of a defendant’s constitutionally

protected opportunity to impeach a witness for bias, motive or

interest is subject to harmless error analysis.”           Balisbisana, 83

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Hawai#i at 117, 924 P.2d at 1223.         A defendant’s conviction will

not be overturned if a court commits an error that is harmless

beyond a reasonable doubt.      State v. Veikoso, 125 Hawai#i 126,

135, 270 P.3d 997, 1006 (2011).       However, an error is not

harmless “if there is a reasonable possibility that [the] error

might have contributed to the conviction.”         Id.; see also

Corella, 79 Hawai#i at 261, 90 0 P.2d at 1328 (Conceivably, there
is “a reasonable possibility that the error might have

contributed to the conviction.”).         In reviewing whether an error

was harmless, this court examines the entire record.            “[A] host

of factors” may be considered, including “the importance of the

witness’ testimony in the prosecution’s case, whether the

testimony was cumulative, the presence or absence of evidence

corroborating or contradicting the testimony of the witness on

material points, the extent of cross-examination otherwise

permitted, and, of course, the overall strength of the

prosecution’s case.”     Id. (quoting Olden v. Kentucky, 488 U.S.
227 (1988)).

          In this case, Complainant’s testimony was central to

Respondent’s case.    The allegations of credit card theft were not

cumulative to any testimony introduced at trial.           There was also

no other evidence to directly corroborate Complainant’s

testimony, and therefore evidence of Complainant’s bias or motive

to lie would have been particularly helpful in assessing

Complainant’s credibility.      While the court allowed cross-

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examination as to Complainant’s other potential motives to

fabricate an allegation of abuse--keeping Petitioner’s cellphone

and remaining in Petitioner’s apartment without paying rent--it

did not permit any cross-examination with respect to the theft

allegation.   Retaliation for an accusation of theft would seem to

furnish Complainant with a motive to testify falsely or to

exaggerate, especially since Complainant gave testimony that she
only returned to Petitioner’s apartment once with the police to

recover her belongings.

          Finally, Respondent argues that Petitioner basically

admitted guilt to the police when he told the police that he was

the man they were looking for.       But, taken in context,

Petitioner’s statement was not an admission of guilt.

Petitioner’s testimony was that he told the police, “I’m probably

the gentleman that you -- that you’re looking for, ‘cause I was

trying to find out what -- you know, what the problem is, what’s

going on, what -- what they were called for.”          (Emphasis added.)
Complainant testified that she told Petitioner that she was going

to call the police before she left the apartment.           Petitioner

testified that Complainant called the police before she left the

apartment.    It cannot be disputed as a matter of fact, then, that

Petitioner knew that the police were being called.           It is

therefore not surprising that, when Petitioner saw Complainant

talking to a police officer, Petitioner would approach the

officer and introduce himself.       Thus, the court and the ICA erred

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in concluding that Petitioner’s statement was an admission of

guilt and that Petitioner would not have known that the police

could be coming at Complainant’s request.         Considering the

circumstances of Respondent’s case, the error was not harmless.

          Respondent’s case was essentially dependent on the

credibility of Complainant, its only witness.          The court decided

the case on the basis of finding “the [Complainant] . . . more
credible than . . . [Petitioner].”        However, the court might have

had a different impression of Complainant’s credibility if

Petitioner had been allowed to cross-examine her as to the

alleged theft.    There is a reasonable possibility then that the

court’s error might have contributed to Petitioner’s conviction,

and thus the court’s error was not harmless.

                                    VI.

          Accordingly, we vacate the March 2, 2012 judgment of

the ICA affirming the court’s January 12, 2011 Judgment, and

remand to the court for proceedings consistent with this opinion.

Audrey E. Stanley,                   /s/ Mark E. Recktenwald
Trisha Y. Nakamura,
and James S. Tabe,                   /s/ Paula A. Nakayama
for petitioner
                                     /s/ Simeon R. Acoba, Jr.
Stephen K. Tsushima,
for respondent                       /s/ Sabrina S. McKenna

                                     /s/ Jeannette H. Castagnetti




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