Oral Argument Before the Hawai‘i Supreme Court – SCAP-23-0000063

No. SCAP-23-0000063, Thursday, November 16, 2023, 10 a.m.

STATE OF HAWAI‘I, Respondent/Plaintiff-Appellant/Cross-Appellee, vs. ALVIN TRAN, Petitioner/Defendant-Appellee/Cross-Appellant.

[ Listen to the entire audio recording in mp3 format ]

[ Watch the video recording on YouTube ]

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

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

The oral argument was livestreamed for public viewing via the Judiciary’s YouTube channel at YouTube.com/hawaiicourts and ‘Ōlelo TV 55.

NOTE: Order assigning Circuit Judge Rowena A. Somerville and Circuit Judge Jeffrey P. Crabtree due to vacancies, filed 04/27/23.

NOTE: Certificate of Recusal, by Substitute Justice Rowena A. Somerville, filed 05/01/23.

NOTE: Order assigning Circuit Judge Clarissa Y. Malinao, in place of Substitute Justice Somerville, recused, filed 05/02/23.

NOTE: Order granting Application for Transfer, filed 05/03/23.

COURT: Recktenwald, C.J., McKenna and Eddins, JJ., and Circuit Judge Malinao and Circuit Judge Crabtree, assigned by reason of vacancies

[ Listen to the entire audio recording in mp3 format ]

Brief Description:

Alvin Tran was indicted for one count of continuous sexual assault of a minor under the age of fourteen years, in violation of Hawai‘i Revised Statutes (“HRS”) § 707-733.6, which provides, in relevant part, that a person violates the statute when they engage “in three or more acts of sexual penetration or sexual contact with the minor over a period of time, while the minor is under the age of fourteen years,” and that, “[t]o convict under this section, [the jury] need unanimously agree only that the requisite number of acts have occurred; the jury need not agree on which acts constitute the requisite number.” HRS §§ 707-733.6(1)(b), (2). Tracking the statutory language, the indictment alleged in pertinent part that Tran intentionally engaged in three or more acts of sexual penetration and/or sexual contact with a minor child under the age of fourteen.

Article I, § 25 of the Hawai‘i Constitution provides in relevant part that, “[i]n continuous sexual assault crimes against minors younger than fourteen years of age, the legislature may define . . . [w]hat constitutes the jury unanimity that is required for a conviction.”

At trial, the circuit court provided instructions to the jury, including that “you need to unanimously agree only that the requisite number of acts have occurred; you need not agree on which acts constitute the requisite number.” The jury returned a guilty verdict. Tran sought a new trial on the grounds that (1) both Article I, § 25 of the Hawai‘i Constitution and HRS § 707-733.6 are unconstitutional under the United States Constitution because the Article I, § 25 authorizes the Hawai‘i Legislature to define jury unanimity, as it did in the HRS § 707-733.6, and the federal Constitution does not permit such legislation, and (2) the jury was not required to agree on the same three requisite acts. The circuit court denied that motion. However, the circuit court subsequently dismissed the indictment without prejudice, on the grounds that the charge was not detailed enough under our decision in State v. Jardine, 151 Hawai‘i 96 (2022).

The State appealed the dismissal. Tran cross-appealed both the dismissal without prejudice and the denial of his motion for a new trial. This court accepted a transfer of the appeal.