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Oral Argument Before the Hawaii Supreme Court

No. SCWC-12-0001114, Thursday, Sept. 18, 2014, 10 a.m.

STATE OF HAWAI`I, Respondent/Plaintiff-Appellee, vs. LAST KONY, Petitioner/Defendant-Appellant.

The above-captioned case was set for argument on the merits at:

Supreme Court Courtroom
Ali`iolani Hale, 2nd Floor
417 South King Street
Honolulu, HI 96813

Attorney for Petitioner:

Jon N. Ikenaga, Deputy Public Defender

Attorney for Respondent:

Donn Fudo, Deputy Prosecuting Attorney

NOTE: Order accepting Application for Writ of Certiorari, filed 07/15/14.

COURT: MER, C.J.; PAN, SSM, RWP, & MDW, JJ.

[ Listen to the entire audio recording in mp3 format ]

Brief Description:

On June 2, 2014, Last Kony (Petitioner) timely filed an application for writ of certiorari (Application) to review the April 2, 2014 judgment of the Intermediate Court of Appeals (ICA), issued pursuant to its February 28, 2014 Summary Disposition Order, which affirmed the Judgment of Conviction and Sentence entered by the Circuit Court of the First Circuit (circuit court) on November 28, 2012.

Petitioner was charged with three counts of sexual assault in the first degree, in violation of HRS § 707-730(1)(c), and six counts of sexual assault in the third degree, in violation of HRS § 707-732(1)(c). During trial, the State elicited testimony from its expert witness regarding the general nature of child sex abuse, which included testimony regarding statistical percentage and behavioral evidence relating to characteristics of typical sex offenders and child victims. Following trial, Petitioner was convicted on six of the nine counts charged.

Petitioner timely filed a notice of appeal with the ICA, asserting that the circuit court erred in allowing the expert’s testimony regarding statistical and behavioral profile evidence of typical sex offenders and child victims because the testimony was (1) not relevant, (2) did not assist the jury, (3) improperly bolstered the complaining witness’s credibility, and (4) improperly profiled him as a sex offenders or, in the alternative, was misleading and highly prejudicial. The ICA majority rejected all four of Petitioner’s arguments. The ICA minority concurred in the majority’s disposition as to the first two points of error, but would have found that the latter two points of error should be measured by Hawai`i Rules of Evidence Rule 403. However, the minority concluded that the latter two points had been waived by Petitioner. The ICA affirmed the circuit court’s judgment.

In his Application, Petitioner contends that the ICA erred in its holding because the expert’s testimony was not relevant, did not assist the jury in understanding the dynamics of child sexual abuse, improperly bolstered the complaining witness’s credibility, and was unfairly prejudicial. In its response to the Application filed September 16, 2014, the State maintains that the expert’s testimony assisted the jury, did not improperly bolster the credibility of the complaining witness, was not unduly prejudicial, and Petitioner failed to object to any of the questions asked of the expert on the grounds that the answer would be prejudicial.