State v. Agtina

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Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
29-JAN-2025
11:01 AM
Dkt. 81 SO

NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

STATE OF HAWAI#I, Plaintiff-Appellee, v.
PERCIVAL AGTINA, Defendant-Appellant

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CASE NO. 1CPC-XX-XXXXXXX)

SUMMARY DISPOSITION ORDER
(By: Leonard, Acting C.J., and Wadsworth, J.,
with Guidry, J., dissenting)
Defendant-Appellant Percival Agtina (Agtina) appeals
from the Judgment of Conviction and Sentence (Judgment) entered
on August 9, 2023, in the Circuit Court of the First Circuit
(Circuit Court).1/ After a jury trial, Agtina was convicted of
one count of Sexual Assault in the First Degree, in violation of
Hawaii Revised Statutes (HRS) § 707-730(1)(c)2/ and two counts of

1/
The Honorable Fa#auuga To#oto#o presided.
2/
HRS § 707-730 (2014) states, in relevant part:

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

(c) The person knowingly engages in sexual
penetration with a person who is at least
fourteen years old but less than sixteen
years old; provided that:
(i) The person is not less than five
years older than the minor; and
(ii) The person is not legally married to
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Sexual Assault in the Third Degree (Sexual Assault 3), in
violation of HRS § 707-732(1)(c).3/
On appeal, Agtina contends that: (1) the deputy
prosecuting attorney (DPA) "committed misconduct in appealing to
the passion[s] and prejudice[s] of the jury throughout the trial
and misstating the law during rebuttal arguments"; (2) the
Circuit Court erred in permitting the State's expert witness, Dr.
Alexander Bivens (Dr. Bivens), "to give profile evidence against
Agtina"; (3) Counts 2 and 4 of the Complaint and corresponding
jury instructions "fail[ed] to define 'genitalia' and thus
fail[ed] to give proper notice to Agtina"; and (4) "Agtina
received ineffective assistance of counsel . . . ."
After reviewing the record on appeal and the relevant
legal authorities, and giving due consideration to the issues
raised and the arguments advanced by the parties, we resolve
Agtina's contentions as follows, and vacate.
(1) In his first point of error, Agtina contends that
the DPA engaged in multiple acts of misconduct "in appealing to
the passion and prejudice of the jury throughout the trial[,]"
including improper remarks during voir dire, opening statements,
and her closing and rebuttal arguments. In light of our ruling
on Agtina's second point of error (see infra), we do not reach
the issues raised in his first point.
(2) In his second point of error, Agtina contends that

the minor[.]
3/
HRS § 707-732 (2014) states, in relevant part:
Sexual assault in the third degree. (1) A
person commits the offense of sexual assault in the
third degree if:
. . . .
(c) The person knowingly engages in sexual
contact with a person who is at least
fourteen years old but less than sixteen
years old or causes the minor to have
sexual contact with the person; provided
that:
(i) The person is not less than five
years older than the minor; and

(ii) The person is not legally married to
the minor[.]

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the Circuit Court "should have precluded [Dr.] Bivens from
testifying regarding the typical characteristics and behavior of
'child molesters.'" Agtina argues that Dr. Bivens's "testimony
regarding typical child molesters amounted to improper profile
evidence, and any minimal probative value that this evidence had
was substantially outweighed by the danger of unfair prejudice,
confusion of the issues, and misleading the jury." Relatedly,
Agtina argues that "the State relied heavily in closing on tying
Agtina to Bivens'[s] testimony[,]" in order to brand Agtina as
having the "mind of a molester."
In State v. McDonnell, 141 Hawai#i 280, 409 P.3d 684
(2017), the supreme court reviewed a challenge to Dr. Bivens's
testimony in a different child sexual abuse case. There, Dr.
Bivens "testified with regard to the dynamics of child sexual
abuse, including delayed reporting and underreporting by victims
of abuse, and 'grooming' techniques typically used by abusers.
Bivens'[s] testimony included statistics regarding how often
abuse occurs in the child's home, and how frequently it involves
individuals who are known to the child." Id. at 283, 409 P.3d at
687. Like Agtina, McDonnell argued that Dr. Bivens's testimony
was irrelevant, was unduly prejudicial, and improperly profiled
McDonnell as a child molester. The supreme court held that the
family court did not abuse its discretion in admitting most of
Dr. Bivens's testimony since the testimony helped explain the
interaction between the minor child and the defendant, and its
probative value outweighed its prejudicial effect. Id. However,
the court ruled that Dr. Bivens's use of certain statistics
regarding the "personal characteristics of abusers" – i.e., that
"85 percent of the time the child has a pre-existing non-sexual
relationship with their molester" and "100 percent of incest
offenders report molesting in their own home" – constituted
improper profile testimony that was unfairly prejudicial to the
defendant. Id. at 297, 409 P.3d at 701 (ellipsis omitted).
Here, Agtina points to three portions of Dr. Bivens's
testimony that he claims constituted improper profile evidence:

(1) Child molesters "are people that they already
know. And unbeknownst to the child, it is

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probably the case that the molester has
intentionally inserted themselves or affiliated
with the child or the child's family in order to
get access to the child and has established a
nonsexual relationship in anticipation of
eventually converting it to a molestation
relationship."

(2) "[A] majority of molesters reported molesting
with others present. Sometimes the others were
children. Sometimes they were potentially
protective adults. And, yeah, about a quarter of
molesters admitted to committing molestation on
the same bed with a potentially protective adult
present. There's some additional dynamics."

(3) "There are two places that are most -- the
most common sites for child sex -- sexual abuse to
occur. The first is the child's home, and the
second is the molester's home. And in the case of
incest, this is the same place."

In response, the State points out that, as in
McDonnell, Dr. Bivens testified in this case that child molesters
do not fit a particular type of profile and that "there's no way
to determine if somebody is a child molester" as "[t]here are no
demographic characteristics or any sort of profiling evidence
that can be used to identify a child molester." The State argues
that the challenged testimony of Dr. Bivens is proper under
McDonnell.
Agtina contends that Dr. Bivens's testimony "regarding
the behavior and character of typical child molesters"
nonetheless "guided the jury to the conclusion that Agtina was
guilty because he fit the profile of a child molester." Agtina
notes that although Bivens did not testify using percentages, he
used equivalent terms such as "probably" and "majority." Agtina
further contends that the DPA relied heavily in closing on tying
Agtina to Bivens's profile testimony, specifically by referencing
his testimony and then repeating the phrase "mind of a molester"
five times. Indeed, the DPA stated, in relevant part:

Now, . . . you heard testimony from an expert. And he
talked about the mind of a molester and what they think
about when they're thinking of the person, that child
they're molesting. In this case, it was a 15-year-old to --
a 15-year-old -- 11- to a 15-year-old [female ( Minor)]. The
mind of a molester, think about asking her, do you have a
boyfriend? Do you still -- are you still a virgin? Right

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before he sexually penetrates her and puts his penis into
her vagina, he's asking these questions. The mind of a
molester. Even afterwards, the mind of a molester, when he
comforts her -- talks about comforting her, you don't need a
boy, referring to someone her age. You got a man; right?
You're beautiful. Mind of a molester.

. . . .
[Dr. Bivens] . . . doesn't know [Minor]. He's talking
to you about the studies, and that's applied to all children
who are subjected to child sex -- sex assault. And he said
-- told you a lot of things, a lot of good information to
help you understand what [Minor] was going through.
Most children know their molester. Dad in the
home. Most molesters are adults obtaining sexual
gratification from sexual contact with a child. That's what
the defendant did. Consistent.

. . . .
There's also studies that talk about children get
molested in the same bed with others in it. And it -- mind
of the molester, it's that sick pleasure. Okay? It's been
studied. You've heard the expert. It's about the total
control and domination that defendant had over [Minor].

(Emphases added.)
In McDonnell, the court ruled that Dr. Bivens's
testimony on the abuse process did not constitute improper
profile evidence. 141 Hawai#i at 296, 409 P.3d at 700. It
reasoned in part:

Here, Dr. Bivens explicitly testified that "there is
not" a typical child molester profile and that it is not
possible to look at "demographic characteristics" or
"personality characteristics" to determine whether someone
is a child molester. Dr. Bivens did not know the specific
facts of this case, and thus could not have tailored his
testimony to unfairly prejudice or profile McDonnell as a
child molester. Further, the State did not argue in closing
that McDonnell was a child molester because he had certain
characteristics or exhibited certain behaviors. Thus,
McDonnell's argument that Dr. Bivens'[s] testimony "provided
the avenue for the jury to conclude that McDonnell was
guilty merely because he fit the profile of a child
molester" is unconvincing.

Id. (emphasis added).
In this case, the State used Dr. Bivens's testimony to
make the very argument it did not make in McDonnell. Indeed, the
DPA explicitly and repeatedly argued that Agtina had the "mind of
a molester" based on personal characteristics or behaviors that
Dr. Bivens had testified are typical of child molesters.
Whatever value Bivens's testimony on this subject served in

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explaining the interaction between Minor and Agtina, it was far
outweighed by the unfair prejudicial effect of the State's
closing argument, which branded Agtina as a child molester based
on a profile that the DPA inferred from Bivens's testimony. The
evidence as argued was unfairly prejudicial to Agtina and should
have been excluded under Hawai#i Rules of Evidence Rule 403.
Further, on this record, we cannot conclude that the
admission of this evidence was harmless beyond a reasonable
doubt. Accordingly, Agtina's convictions must be vacated.
(3) In his third point of error, Agtina contends that
Counts 2 and 4 of the Complaint, which charged him with separate
incidents of Sexual Assault 3, "fail[ed] to define 'genitalia'
and thus fail[ed] to give proper notice to Agtina." He
challenges the related jury instructions on the same basis.
In addressing a defendant's indictment challenge, the
supreme court recently stated:

Under article I, section 14 of the Hawai#i
Constitution, those accused of crimes have the right "to be
informed of the nature and cause of the accusation" against
them. Defendants may challenge indictments for failure to
charge an offense "at any time during the pendency of the
proceeding" because of "the significant consequences
associated with omitting an essential and material element
in an oral charge" or indictment. State v. Sprattling, 99
Hawai#i 312, 318, 55 P.3d 276, 282 (2002) (quotation
omitted).

While indictments can be challenged at any point
during the proceeding, different standards apply to
"post-conviction challenges." [State v. ]Motta, 66 Haw.
[89,] 91, 657 P.2d [1019,] 1020[ (1983)]. Under the
Motta/Wells framework, "we will not reverse a conviction
based upon a defective indictment unless the defendant can
show prejudice or that the indictment cannot within reason
be construed to charge a crime." Id. The liberal
construction standard "essentially prescribes a presumption
of validity on indictments that are challenged subsequent to
a conviction." Sprattling, 99 Hawai#i at 318, 55 P.3d at
282.

State v. Tran, 154 Hawai#i 211, 224, 549 P.3d 296, 309 (2024).
The same principles apply here, where Agtina challenges
the sufficiency of Counts 2 and 4 of the Complaint for the first
time on appeal. See id. at 226, 549 P.3d at 311 (holding that
"where . . . a charge challenge is raised after a guilty verdict
has been returned . . . the Motta/Wells rule applies"); see State
v. Kuhane, 145 Hawai#i 362, 370, 452 P.3d 359, 367 (2019)

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(applying the Motta/Wells rule to the sufficiency challenge to a
complaint).
Applying the Motta/Wells liberal construction rule, we
conclude that Counts 2 and 4 were not defective. First, Agtina
has not established that he was prejudiced by these charges.
There is nothing in the record to suggest that he was misled or
would have defended the case differently if the indictment
contained the definition of "genitalia." See Tran, 154 Hawai#i
at 226, 549 P.3d at 311. Thus, we are not persuaded that he was
prejudiced by Counts 2 and 4 of the Complaint. See id.
Second, Counts 2 and 4 were sufficiently detailed to
charge a crime. Counts 2 and 4 began with the following
respective paragraphs:

COUNT 2: On or about October 27, 2018, to and
including December 28, 2019, in the City and County of
Honolulu, State of Hawai#i, . . . AGTINA did knowingly
engage in sexual contact with [Minor], who was at least
fourteen years old but less than sixteen years old, by
placing his hand on her genitalia, and . . . AGTINA was not
less than five years older than [Minor] and was not legally
married to [Minor], and knew he was not legally married to
[Minor], thereby committing the offense of Sexual Assault in
the Third Degree, in violation of Section 707-732(1)(c) of
the Hawai#i Revised Statutes.
COUNT 4: On or about December 29, 2019, in the City
and County of Honolulu, State of Hawai#i, . . . AGTINA did
knowingly engage in sexual contact with [Minor], who was at
least fourteen years old but less than sixteen years old, by
placing his hand on her genitalia, and . . . AGTINA was not
less than five years older than [Minor] and was not legally
married to [Minor], and knew he was not legally married to
[Minor], thereby committing the offense of Sexual Assault in
the Third Degree, in violation of Section 707-732(1)(c) of
the Hawai#i Revised Statutes.

Immediately after these respective paragraphs, Counts 2
and 4 each alleged:

Pursuant to Section 707-700 of the Hawai#i Revised
Statutes, "married" includes persons legally married, and a
male and female living together as husband and wife
regardless of their legal status, but does not include
spouses living apart.
Pursuant to Section 707-700 of the Hawaii Revised
Statutes, "sexual contact" means any touching, other than
acts of "sexual penetration", of the sexual or other
intimate parts of another, or of the sexual or other
intimate parts of the actor by another, whether directly or
through the clothing or other material intended to cover the
sexual or other intimate parts.

Pursuant to Section 707-700 of the Hawai#i Revised

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Statutes, "sexual penetration" means:
(1) Vaginal intercourse, anal intercourse, fellatio,
deviate sexual intercourse, or any intrusion of any
part of a person's body or of any object into the
genital or anal opening of another person’s body; it
occurs upon any penetration, however slight, but
emission is not required. As used in this definition,
"genital opening" includes the anterior surface of the
vulva or labia majora; or

(2) Cunnilingus or anilingus, whether or not actual
penetration has occurred.
Pursuant to Section 707-700 of the Hawai#i Revised
Statutes, "deviate sexual intercourse" means any act of
sexual gratification between a person and an animal or a
corpse, involving the sex organs of one and the mouth, anus,
or sex organs of the other.

If convicted of this offense or any included felony
offense, . . . AGTINA may be subject to sentencing in
accordance with Section 706-661 and Section 706-662(4)(a) of
the Hawai#i Revised Statutes where he is a multiple offender
in that he is being sentenced for two or more felonies, and
an extended term of imprisonment is necessary for the
protection of the public.

Counts 2 and 4 each included all material elements
outlined in HRS § 707-732, citing that statute specifically.
Each count also provided the statutory definitions of "sexual
contact" and related terms.
Generally, "where a statute sets forth with reasonable
clarity all essential elements of the crime intended to be
punished, and fully defines the offense in unmistakable terms
readily comprehensible to persons of common understanding, a
charge drawn in the language of the statute is sufficient."
Tran, 154 Hawai#i at 226, 549 P.3d at 311 (brackets omitted)
(quoting State v. Jendrusch, 58 Haw. 279, 282, 567 P.2d 1242,
1245 (1977)). Additonally, when reviewing "whether an offense
has been sufficiently pleaded," we "interpret a charge as a
whole, employing practical considerations and common sense."
Sprattling, 99 Hawai#i at 318-19, 55 P.3d at 282-83.
Here, Counts 2 and 4 included the material elements of
the offense and all the relevant statutory definitions. A person
of common understanding would know from reading these counts that
Agtina was accused of violating HRS § 707-732 by knowingly
engaging in (1) sexual contact (2) with Minor, who was at least
fourteen years old but less than sixteen years old, and to whom
he was not married (3) on or about the specified dates (4) in the

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City and County of Honolulu. The Complaint outlined the
requisite mens rea and properly defined sexual contact according
to its statutory definition. See Tran, 154 Hawai#i at 227, 549
P.3d at 312 (citing State v. Wheeler, 121 Hawai#i 383, 393, 219
P.3d 1170, 1180 (2009)). Further, a person of common
understanding would know that the term "genitalia," as used in
Counts 2 and 4 (i.e., "by placing his hand on her genitalia"),
refers to Minor's external sex organs. See Webster's
Encyclopedic Unabridged Dictionary 797 (1996 ed.) (defining
"genitalia" to mean "the organs of reproduction, esp. the
external organs"). Counts 2 and 4 "'sufficiently apprised'
[Agtina] of what he needed to 'be prepared to meet,' [State
v. ]Wells, 78 Hawai#i [373,] 379-80, 894 P.2d [70,] 76-77[
(1995)], and 'provided him with fair notice of the offense's
essential elements,' Kauhane, 145 Hawai#i at 370, 452 P.3d at 367
(brackets and quotation omitted)." Tran, 154 Hawai#i at 227, 549
P.3d at 312 (original brackets omitted). Liberally construed,
Counts 2 and 4 each charged a crime. See id.
Given our ruling on Agtina's second point of error (see
supra), we do not reach his contention that the jury instructions
for Counts 2 and 4 were erroneous because they did not define the
term "genitalia."
(4) For the same reason, we do not reach Agtina's
contention that he received ineffective assistance of counsel.
For the reasons discussed above, we vacate the Judgment
of Conviction and Sentence entered on August 9, 2023, in the
Circuit Court of the First Circuit, and remand the case for a new
trial.
DATED: Honolulu, Hawai#i, January 29, 2025.

On the briefs:
/s/ Katherine G. Leonard
Henry P. Ting, Acting Chief Judge
Deputy Public Defender,
for Defendant-Appellant.
/s/ Clyde J. Wadsworth
Stephen K. Tsushima, Associate Judge
Deputy Prosecuting Attorney,
City & County of Honolulu,
for Plaintiff-Appellee.

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DISSENTING OPINION BY GUIDRY, J.
For the reasons set forth below, I respectfully

disagree with the majority that Dr. Bivens' testimony "should

have been excluded under Hawaiʻi Rules of Evidence [(HRE)]

Rule 403" because "[t]he evidence as argued was unfairly

prejudicial to Agtina[.]" (Emphasis added).

The question of whether expert witness testimony

should have been excluded under HRE Rule 403 is reviewed for

abuse of discretion. Kealoha v. County of Hawaii, 74 Haw. 308,

323, 844 P.2d 670, 677 (1993) (reviewing a trial court's ruling

regarding the admission of evidence, pursuant to HRE 403, under

the abuse of discretion standard).

I do not think that Dr. Bivens' testimony improperly

"profiled" Agtina. Dr. Bivens testified regarding "the general

dynamics of child sexual abuse." See State v. McDonnell, 141

Hawaiʻi 280, 295, 409 P.3d 684, 699 (2017) (concluding in that

case that "Dr. Bivens was appropriately permitted to testify

regarding the dynamics of the relationship between child victims

of sexual abuse and their abusers"). Dr. Bivens testified that,

"[he did not] know anything about this particular case" and that

"[he did not] even know the defendant's name[.]" Moreover, Dr.

Bivens expressly clarified that "there's no way to determine if

somebody is a child molester, other than whether the individual

molests a child or not[,]" as "[t]here are no demographic
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characteristics or any sort of profiling evidence that can be

used to identify a child molester."

I therefore disagree with the majority that Dr.

Bivens' testimony should have been excluded because the State

"used Dr. Bivens's testimony" to "explicitly and repeatedly

argue[] that Agtina had the 'mind of a molester' based on

personal characteristics or behaviors that Dr. Bivens had

testified are typical of child molesters." It was the

prosecutor who used Dr. Bivens' testimony to characterize Agtina

as having the "mind of a molester" during closing argument.

A trial court cannot know with certainty, at the time

expert testimonial evidence is admitted, how a prosecutor might

attempt to characterize or use that evidence in the closing

argument. But it is reasonable for a trial court to expect that

the prosecutor will not use and characterize otherwise

admissible testimonial evidence in a way that "profiles" or

otherwise unfairly prejudices a defendant. See State v.

Underwood, 142 Hawaiʻi 317, 326, 418 P.3d 658, 667 (2018) ("A

prosecutor, moreover, has the responsibility of a minister of

justice and not simply that of an advocate.") (cleaned up).

I cannot conclude, therefore, that the circuit court

abused its discretion by not excluding evidence that was later

used by the prosecutor during closing argument to create what

the majority characterizes as an "unfair prejudicial effect."

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If a prosecutor's use or characterization of evidence during

closing argument constitutes prosecutorial misconduct, the

defendant's judgment of conviction may be vacated on that basis.

For the foregoing reasons, I respectfully disagree

with the majority's decision to vacate the Judgment on the

ground that Dr. Bivens' testimony should have been excluded

under HRE Rule 403. I would therefore address the remaining

points of error, including the question of whether the

prosecutor committed prosecutorial misconduct.1

/s/ Kimberly T. Guidry
Associate Judge

1 It appears that Agtina did not object below to the prosecutor's
closing argument. And although Agtina raised prosecutorial misconduct as a
point of error on appeal, Agtina did not specifically argue on appeal that
the prosecutor's use of the phrase "mind of a molester" constituted
prosecutorial misconduct. Nevertheless, this court may review statements
made by the prosecutor during closing argument for plain error. State v.
Fox, 70 Haw. 46, 55, 760 P.2d 670, 675 (1988) ("[W]here plain errors were
committed and substantial rights were affected thereby, the errors 'may be
noticed although they were not brought to the attention of the [trial]
court.' . . . And we may notice 'plain error' even when 'not presented' by
the appellant.") (quoting Hawaiʻi Rules of Penal Procedure Rule 52(b) and
Hawaiʻi Rules of Appellate Procedure Rule 28(b)(4)(D)).

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