State v. Bekkum

NOT FOR PUBLICATION IN WEST'S HAWAI I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
13-JUN-2025
07:50 AM
Dkt. 105 SO
NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI I

STATE OF HAWAI I, Plaintiff-Appellee, v.
CURTIS RYAN BEKKUM, Defendant-Appellant

APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT
(CASE NO. 2CPC-XX-XXXXXXX)

SUMMARY DISPOSITION ORDER
(By: Leonard, Acting Chief Judge, Nakasone and Guidry, JJ.)
Defendant-Appellant Curtis Bekkum (Bekkum) appeals from

the November 3, 2022 Judgment; Conviction and Probation Sentence;

Terms and Conditions of Probation; Notice of Entry (Judgment)

entered by the Circuit Court of the Second Circuit (Circuit

Court).1

Plaintiff-Appellee State of Hawai i (State) initially

charged Bekkum via a Complaint filed on September 20, 2019 (2019

Complaint) with two counts of Sexual Assault in the Fourth Degree

(Sexual Assault Fourth) in violation of Hawaii Revised Statutes

(HRS) § 707-733(1)(a) (Supp. 2016). 2 The 2019 Complaint alleged

the two counts as follows:

1
The Honorable Peter T. Cahill presided.
2
As discussed infra, we take judicial notice of the records in case
numbers 2DCW-XX-XXXXXXX, 2CPC-XX-XXXXXXX, and 2DCW-XX-XXXXXXX.
NOT FOR PUBLICATION IN WEST'S HAWAI I REPORTS AND PACIFIC REPORTER

COUNT ONE:

That on or about the 29th day of September, 2017, in
the Division of Wailuku, County of Maui, State of Hawaii,
CURTIS RYAN BEKKUM did knowingly subject [LA] [(CW)], a
person not married to him, to sexual contact by compulsion
and/or cause her to have sexual contact with him by
compulsion, to wit, by touching and/or grabbing her breast,
thereby committing the offense of Sexual Assault in the
Fourth Degree in violation of Section 707-733(1)(a) of the
Hawaii Revised Statutes.

COUNT TWO:

That on or about the 30th day of September, 2017, in
the Division of Wailuku, County of Maui, State of Hawaii,
CURTIS RYAN BEKKUM did knowingly subject [CW], a person not
married to him, to sexual contact by compulsion and/or cause
her to have sexual contact with him by compulsion, to wit,
by touching and/or pressing against her buttocks with his
penis, thereby committing the offense of Sexual Assault in
the Fourth Degree in violation of Section 707-733 (1)(a) of
the Hawaii Revised Statutes.

The charges against Bekkum were committed to the

Circuit Court in 2CPC-XX-XXXXXXX. On January 19, 2022, Bekkum

moved to dismiss the 2019 Complaint arguing that because the

complaint was not signed by the complaining witness (CW), it was

fatally defective. The Circuit Court heard arguments and orally

granted the motion to dismiss on February 10, 2022. The Circuit

Court entered an order granting the motion to dismiss without

prejudice on February 23, 2022.

On February 10, 2022, the same day the Circuit Court

orally granted the motion to dismiss the 2019 Complaint, the

State filed a new complaint (2022 Complaint), alleging the same

two counts as in the 2019 Complaint. The case was committed to

the Circuit Court in 2CPC-XX-XXXXXXX. A jury trial was held and

Bekkum was found guilty on both counts of Sexual Assault Fourth.

A motion for new trial was filed, and after hearings held on

multiple days, the motion was denied. Judgment was entered on

November 3, 2022, and Bekkum timely appealed.

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Bekkum raises seven points of error on appeal, arguing

that: (1) the Circuit Court plainly erred in failing to enter

judgment of acquittal; (2) the Circuit Court plainly erred in

failing to provide a jury instruction regarding the State's

burden of proving timeliness beyond a reasonable doubt; (3) the

Complaint is fatally defective; (4) the Circuit Court reversibly

erred in failing to instruct the jury to disregard certain

hearsay testimony that was stricken and in admitting certain

hearsay evidence; (5) Bekkum's due process rights were violated

due to numerous instances of prosecutorial misconduct; (6)

Bekkum's trial counsel provided ineffective assistance of

counsel; and (7) the Circuit Court abused its discretion when it

orally denied Bekkum's Motion for New Trial.

Upon careful review of the record and the briefs

submitted by the parties, and having given due consideration to

the arguments advanced and the issues raised, we resolve Bekkum's

points of error as follows:

(1) Bekkum argues that the Circuit Court plainly erred

in failing to enter a judgment of acquittal because the evidence

was insufficient to sustain his convictions due to the State

failing to prove that the instant prosecution was timely.

Under HRS § 701-114 (2014), no person may be convicted

of an offense unless, inter alia, facts establishing that the

offense was committed within the time period specified in HRS

§ 701-108 (2014) are proved beyond a reasonable doubt. A

prosecution for Sexual Assault Fourth, a misdemeanor, must be

commenced within two years after it is committed. See HRS § 701-

108(2)(e). The period of limitation does not run during any time

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when a prosecution against the accused for the same conduct is

pending. HRS § 701-108(6)(b).

The State argues that the prosecution of the instant

case was not untimely because the statute of limitations was

tolled by operation of HRS § 701-108(6). The State requests that

this court take judicial notice of the record in 2DCW-XX-XXXXXXX,

2CPC-XX-XXXXXXX, and 2DCW-XX-XXXXXXX, specifically (1) that the

2019 Complaint was filed on September 20, 2019, in

2DCW-XX-XXXXXXX, (2) that the 2019 Complaint was then dismissed

without prejudice on February 10, 2022, in case number

2CPC-XX-XXXXXXX, and (3) that the 2022 Complaint alleging the

same conduct as alleged in the 2019 complaint was filed on

February 10, 2022 in 2DCW-XX-XXXXXXX. 3 We first address the

State's request for judicial notice.

A court is mandated to take judicial notice when a

party (1) requests the court to take judicial notice, and (2)

provides enough information to establish that the fact is either

generally known or capable of accurate and ready determination.

State v. Kwong, 149 Hawai i 106, 113, 482 P.3d 1067, 1074 (2021)

(citations omitted); Hawaii Rules of Evidence (HRE) Rule 201(d)

("A court shall take judicial notice if requested by a party and

supplied with the necessary information."). The Hawai i Supreme

Court "has validated the practice of taking judicial notice of a

3
The State also requests that we take judicial notice of the
February 3, 2022 State's Memorandum in Opposition to [Bekkum's] Motion to
Dismiss for the fact that the State put Bekkum on notice that the 2019
Complaint tolled the statute of limitations and that there would be nine days
to re-file a new complaint upon dismissal of the 2019 Complaint. We decline
to do so. Factual allegations, conclusions, and findings authored by the
parties or their attorneys should not be noticed to prove the truth of the
matters asserted, even though the material happens to be contained in court
records. Uyeda v. Schermer, 144 Hawai i 163, 172, 439 P.3d 115, 124 (2019).

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court's own records in an interrelated proceeding where the

parties are the same." State v. Akana, 68 Haw. 164, 165, 706

P.2d 1300, 1302 (1985). For example, the supreme court has held

that the ICA was required to take judicial notice of filings made

in another appeal upon a party's request because the filings in

the other appeal were included in the ICA's electronic records

through the Judiciary Information Management System, and the

parties in the two appeals were the same. Oahu Publ'ns, Inc. v.

Abercrombie, 134 Hawai i 16, 20 n.3, 332 P.3d 159, 163 n.3

(2014).

Bekkum argues that judicial notice should not be taken

here because the issue of whether the instant prosecution was

timely is "highly debatable and not easily verifiable," and

taking judicial notice of the content of court records does not

in and of itself prove that a tolling of a statute of limitations

has occurred as a matter of fact or law. However, Bekkum does

not dispute the accuracy of the filing dates for the 2019

Complaint, the 2CPC-XX-XXXXXXX dismissal, and the 2022 Complaint.

Because these filing dates are not in dispute, nor can their

accuracy be reasonably questioned, we grant the State's request

to judicially notice the 2019 Complaint, the dismissal without

prejudice of the 2019 Complaint, and the 2022 Complaint.

The Complaints alleged and the State adduced evidence

that the charged incidents took place on September 29 and 30,

2017. The expiration of the two-year statute of limitations for

these offenses would have been September 29 and 30, 2019. See

HRS § 701-108(2)(e). The 2019 Complaint was timely commenced

because the 2019 Complaint was filed on September 20, 2019, nine

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days before the expiration of the statute of limitations. See

HRS § 701-108(5). The limitations period was tolled while the

2DCW-XX-XXXXXXX case and then the 2CPC-XX-XXXXXXX case proceeded.

See HRS § 701-108(6)(b). The Circuit Court orally dismissed the

2019 Complaint without prejudice, and the State re-filed the 2022

Complaint on the same day, February 10, 2022. Therefore, the

Circuit Court did not plainly err in failing to enter a judgment

of acquittal on the grounds that the prosecution was untimely.

(2) Bekkum also argues that the Circuit Court plainly

erred in failing to instruct the jury that the State must prove

timeliness beyond a reasonable doubt. "[O]nce instructional

error is demonstrated, we will vacate, without regard to whether

timely objection is made, if there is a reasonable possibility

that the error contributed to the defendant's conviction, i.e.,

that the erroneous jury instruction was not harmless beyond a

reasonable doubt." State v. Abdon, 137 Hawai i 19, 29-30, 364

P.3d 917, 927-28 (2016) (quoting State v. Nichols, 111 Hawai i

327, 337, 141 P.3d 974, 984 (2006)). Failure to instruct on

timeliness is harmless beyond a reasonable doubt when the record

contains sufficient evidence that the prosecution was timely

commenced. Id. at 30, 364 P.3d at 928. Here, the Circuit Court

failed to instruct the jury that the State must prove timeliness

beyond a reasonable doubt. However, as discussed supra, the

record, as in Abdon, contains undisputed evidence regarding the

timeliness of the prosecution. Therefore, we conclude that the

Circuit Court's instructional error was harmless beyond a

reasonable doubt.

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(3) Bekkum argues that the 2022 Complaint was fatally

defective because it failed to allege that the instant

prosecution was timely, and it failed to define the statutory

term "compulsion." Bekkum does not point to, nor could we find,

where in the record Bekkum challenged the sufficiency of the 2022

Complaint on these bases.
[W]hen a defendant challenges the sufficiency of a
charge for the first time on appeal, an appellate court will
apply a more liberal standard of review, called the
Motta/Wells rule. See, e.g., State v. Merino, 81 Hawai i
198, 213, 915 P.2d 672, 687 (1996) (explaining that the
Motta/Wells rule applies to challenges to oral charges,
informations, and complaints raised for the first time on
appeal). Under the Motta/Wells rule, charges challenged for
the first time on appeal are presumed valid. [State v.
Wheeler, 121 Hawai i 383, 399-400, 219 P.3d 1170, 1186-87
(2009).] Accordingly, we will only vacate a defendant's
conviction under this standard if the defendant can show:
(1) that the charge cannot reasonably be construed to allege
a crime; or (2) that the defendant was prejudiced. State v.
Motta, 66 Haw. 89, 91, 657 P.2d 1019, 1020 (1983).

State v. Kauhane, 145 Hawai i 362, 370, 452 P.3d 359, 367 (2019)

(cleaned up).

Because Bekkum raises these arguments challenging the

sufficiency of the 2022 Complaint for the first time on appeal,

the Motta/Wells rule is applicable. Under the Motta/Wells rule,

a charge will only be adequate when it provides the accused with

fair notice of the offense's essential elements, which are

conduct, attendant circumstances, and results of conduct. Id. at

370, 452 P.3d at 367 (citing State v. Sprattling, 99 Hawai i 312,

329 n.6, 55 P.3d 276, 293 n.6 (2002)). "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 will

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be sufficient." Id. (quoting State v. Nesmith, 127 Hawai i 48,

53, 276 P.3d 617, 622 (2012)) (cleaned up).

Regarding the complaint's failure to allege timeliness,

timeliness is not an essential element of the Sexual Assault

Fourth offense because timeliness is not included as an essential

element of Sexual Assault Fourth in HRS § 707-733. Bekkum also

does not allege that he was prejudiced by the lack of such

language in the complaint. Accordingly, Bekkum's argument that

the 2022 complaint was fatally defective due to the failure to

allege timeliness lacks merit.

Bekkum further argues that complaint was defective due

to the failure to provide the statutory definition of

"compulsion." This court has previously addressed whether the

statutory definition of "compulsion" comports with its common

meaning. State v. Aledo, No. CAAP-XX-XXXXXXX, 2019 WL 6127474,

*3-4 (Haw. App. Nov. 18, 2019) (SDO). As we concluded in Aledo,

the dictionary definitions of "compulsion" did not rise to the

level of specificity of the definition of "compulsion" in HRS

§ 707-700 (2014). Id. at *4. The failure to include the

statutory definition of "compulsion" failed to provide the

defendant with fair notice of the charges. Id. Here, the

complaint did not include the statutory definition of

"compulsion." Therefore, we conclude that the complaint did not

give fair notice of an essential element of the charged offenses

and was therefore insufficient. See id. at *3-4.

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Accordingly, we vacate and remand the case to the

Circuit Court with instructions to dismiss the case without

prejudice. See, e.g., Kauhane, 145 Hawai i at 374, 452 P.3d at

371.

(4-7) In light of our decision to vacate and remand

the case to the Circuit Court to be dismissed without prejudice

based on the insufficiency of the 2022 Complaint, we need not

reach the other points of error Bekkum raises on appeal. 4 See,

e.g., State v. Borochov, 86 Hawai i 183, 193-94, 948 P.2d 604,

614-15 (App. 1997) (declining to reach other points of error

where appellate court decided to vacate and remand case based on

insufficient complaint); State v. Cummings, 101 Hawai i 139, 145,

63 P.3d 1109, 1115 (2003), overruled on other grounds by Schwartz

v. State, 136 Hawai i 258, 361 P.3d 1161 (2015) (declining to

address other points of error because determination that

complaint was insufficient was dispositive of the appeal); State

v. Saffeels, No. CAAP-XX-XXXXXXX, 2024 WL 773572, *2 (Haw. App.

Feb. 6, 2024) (SDO) (declining to reach second point of error

upon decision to vacate and remand case for dismissal with or

without prejudice).

4
If Bekkum is re-tried, Bekkum will have the opportunity to present
whichever witnesses, as well as object to the admission of the testimonies,
evidence, and prosecutor remarks, that serve as the basis for his other points
of error, including the claim of ineffective assistance of counsel from his
prior trial counsel.

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For these reasons, the Circuit Court's November 3, 2022

Judgment is vacated and this case is remanded to the Circuit

Court for dismissal without prejudice.

DATED: Honolulu, Hawai i, June 13, 2025.

On the briefs: /s/ Katherine G. Leonard
Acting Chief Judge
Hayden Aluli,
for Defendant-Appellant. /s/ Karen T. Nakasone
Associate Judge
Richard Rost,
Deputy Prosecuting Attorney, /s/ Kimberly T. Guidry
County of Maui, Associate Judge
for Plaintiff-Appellee.

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