State v. Tran

NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
28-JAN-2026
08:36 AM
Dkt. 102 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAIʻI

STATE OF HAWAIʻI, Plaintiff-Appellee/Cross-Appellant,
v.
ALVIN TRAN, Defendant-Appellant/Cross-Appellee

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

SUMMARY DISPOSITION ORDER
(By: Leonard, Presiding Judge, Wadsworth and Guidry, JJ.)

Defendant-Appellant/Cross-Appellee Alvin Tran (Tran)

appeals from the Circuit Court of the First Circuit's (circuit

court) December 10, 2024 "Judgment of Conviction and Sentence"

(Judgment). 1 Plaintiff-Appellee/Cross-Appellant State of Hawaiʻi

(State) cross-appeals from the circuit court's ruling on a

question of law adverse to the State, pursuant to Hawaii Revised

Statutes (HRS) § 641-13(5) (2016).

1 The Honorable Catherine H. Remigio presided.
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On July 24, 2020, the State charged Tran by

Indictment, alleging that Tran committed "Continuous Sexual

Assault of a Minor Under the Age of Fourteen Years" in violation

of HRS § 707-733.6 (2014). A jury found Tran guilty as charged.

The circuit court sentenced Tran to a twenty-year term of

imprisonment. Tran appealed, and the State cross-appealed.

Tran raises multiple points of error on appeal,

contending that: (1) "[t]he circuit court reversibly erred by

not engaging in a colloquy with Tran to ensure that he

intelligently, knowingly, and voluntarily waived his right to

cross-examine [the complaining witness (CW)]"; (2) "[t]rial

counsel provided Tran with ineffective assistance of counsel by

not cross-examining [CW]"; (3) "[t]he circuit court reversibly

erred in instructing the jury . . . that the charged offense's

attendant circumstances element of the minor's age was a strict

liability element that did not require any mens rea"; (4) "[t]he

circuit court plainly erred in allowing the jury to consider Dr.

[Kayal] Natarajan's [(Dr. Natarajan)] testimony (in its

entirety), and Dr. [Alex] Biven[s' (Dr. Bivens)] testimony (also

in its entirety), because their testimony established its own

irrelevancy"; (5) "[t]he circuit court . . . plainly erred by

not qualifying the defense expert, [Tristan Wristen (Nurse

Wristen)], as an expert in front of the jury"; and (6) the

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prosecutor committed prosecutorial misconduct in her opening,

closing, and rebuttal statements. (Citations omitted.)

The State's cross-appeal raises one point of error,

contending that "[t]he circuit court erred by concluding

[Tran's] statements to the [CW] . . . required a separate

determination of voluntariness under HRS § 621-26."

Upon careful review of the record, briefs, and

relevant legal authorities, and having given due consideration

to the arguments advanced and the issues raised by the parties,

we resolve Tran and the State's points of error as follows:

I. Tran's Points of Error 2

(1) Tran contends the circuit court erred by not

conducting a colloquy to determine whether Tran waived his right

to cross-examine the CW. We review constitutional questions

under the right/wrong standard. State v. Fields, 115 Hawaiʻi

503, 511, 168 P.3d 955, 963 (2007).

"In all criminal prosecutions, the accused shall enjoy

the right . . . to be confronted with the witnesses against the

accused[.]" Haw. Const. art. I, § 14. "[T]he main and

essential purpose of confrontation is to secure for the

[defendant] the opportunity of cross-examination[.]" Birano v.

2 We address both Tran's first and second points of error in
section (1) below.

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State, 143 Hawaiʻi 163, 183, 426 P.3d 387, 407 (2018) (citation

omitted).

Tran does not cite to any case in which the Hawaiʻi

appellate courts have held that, notwithstanding defense

counsel's discretion to exercise appropriate trial strategy, a

judge must conduct a colloquy to obtain a criminal defendant's

express waiver of defendant's right to cross-examine a witness

for the prosecution. Indeed, in addressing this issue, the

Hawaiʻi Supreme Court explained that,

The right of confrontation is a fundamental constitutional
right of the accused. But, this right is not absolute and
defense counsel can waive certain aspects of the right
where such waiver is considered a matter of trial tactics
and procedure; in which event the trial court is not
required to determine whether defendant had knowingly and
voluntarily waived his right.

State v. Oyama, 64 Haw. 187, 189, 637 P.2d 778, 779-80 (1981)

(emphasis added) (citations omitted).

Here, the record reflects that Tran's defense counsel

made a tactical decision not to cross-examine CW. 3 We therefore

3 It appears that defense counsel's decision not to cross-examine
CW before the jury was part of the defense strategy. The record reflects
that defense counsel actively engaged in Tran's defense, raising several
objections during the prosecution's direct examination of CW. Trial
proceedings were briefly recessed after CW, who had been removed to a witness
room during a bench conference, began crying and "was not able to come back"
to the courtroom. During that recess, as the parties waited for CW to resume
her testimony, defense counsel expressed concerns regarding the presence of a
comfort dog within the courtroom itself, and of the relocation of the victim
witness counselor nearer to the witness stand. After the prosecutor
concluded her direct examination, defense counsel informed the circuit court
that he had "several objections that [he thought] would be better handled
from counsel table." Defense counsel subsequently moved for a mistrial, and
the circuit court ordered a recess to allow for a hearing on the

(continued . . .)

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conclude that the circuit court was not required to conduct a

colloquy to determine whether Tran knowingly and intelligently

waived his right to confrontation.

With regard to Tran's contention that defense counsel

was ineffective for failing to cross-examine CW, we consider

whether defense counsel's assistance, when "viewed as a whole,

. . . was within the range of competence demanded of attorneys

in criminal cases." State v. DeLeon, 131 Hawaiʻi 463, 479, 319

P.3d 382, 398 (2014) (citation omitted). Where a defendant

alleges "[s]pecific actions or omissions" that "ha[ve] an

obvious tactical basis for benefitting the defendant's case" as

error, such allegations "will not be subject to further

scrutiny." Id. (citation omitted); see also State v. Richie, 88

Hawaiʻi 19, 39, 960 P.2d 1227, 1247 (1998) ("[M]atters presumably

within the judgment of counsel, like trial strategy, will rarely

be second-guessed by judicial hindsight.") (cleaned up). Here,

the record reflects "an obvious tactical basis" underlying

defense counsel's decision to not cross-examine CW.

(2) Tran contends that the circuit court erred by

failing to instruct the jury of the State's "burden to prove

3(. . .continued)

voluntariness of statements made by Tran to CW. During that hearing, defense
counsel questioned CW regarding her statement that Tran "seemed stressed"
during their interactions. It was only after this hearing, and upon the
resumption of trial, that defense counsel informed the circuit court that
"defense has no questions for [CW]."

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[Tran's] mens rea as to [CW's] age." We review the propriety of

jury instructions de novo, and determine "whether, when read and

considered as a whole, the instructions given are prejudicially

insufficient, erroneous, inconsistent, or misleading." State v.

Kato, 147 Hawaiʻi 478, 490, 465 P.3d 925, 937 (2020) (cleaned

up).

Tran was charged pursuant to HRS § 707-733.6. By its

express terms, HRS § 707-733.6 prohibits the "continuous sexual

assault of a minor" who is "under the age of fourteen years." 4

HRS § 707-733.6 does not require proof that a person charged

with the offense have knowledge of the attendant circumstance of

the victim's age.

In State v. Buch, the Hawaiʻi Supreme Court clarified

that "a defendant is strictly liable with respect to the

attendant circumstance of the victim's age in a sexual assault."

4
HRS § 707-733.6 provides, in relevant part,

(1) A person commits the offense of continuous sexual
assault of a minor under the age of fourteen years if the
person:

(a) Either resides in the same home with a minor
under the age of fourteen years or has recurring
access to the minor; and

(b) Engages 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.

(Emphasis added.)

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83 Hawaiʻi 308, 315-16, 926 P.2d 599, 606-07 (1996). The court

explained that,

To further its policy of protecting children from sexual
exploitation by adults, the legislature expressly deleted
knowledge of the child's age as an element of sexual
assault offenses in which the child's age is an attendant
circumstance. By doing so, it fairly placed on the adult
the risk of mistake with respect to the child's age.

Id. at 320, 926 P.2d at 611 (examining the legislative history

of sexual offense statutes in which the child's age is an

attendant circumstance).

In sum, while HRS § 707-733.6 requires the State to

prove that CW was under the age of fourteen at the time of the

continuous sexual assault, it does not require the State to

prove that Tran knew CW was under the age of fourteen. We

therefore conclude that the circuit court's jury instructions

were not prejudicially insufficient, erroneous, inconsistent, or

misleading.

(3) Tran contends that the testimonies of Dr.

Natarajan and Dr. Bivens were not relevant, and that the circuit

court therefore erred by admitting their testimonies. In

reviewing the circuit court's determinations as to the relevancy

of expert witness testimony, 5 we are mindful that,

5 The admission of expert witness testimony is governed by Hawaii
Rules of Evidence (HRE) Rule 702, which states,

If scientific, technical, or other specialized knowledge
will assist the trier of fact to understand the evidence or
to determine a fact in issue, a witness qualified as an

(continued . . .)

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One of the touchstones of admissibility o[f] expert
testimony under HRE 702 is relevance. In determining the
relevancy issue, the trial courts' function is akin to the
relevancy analysis adopted in applying HRE Rules 401 (1993)
and 402 (1993). Expert testimony must assist the trier of
fact by providing a resource for ascertaining truth in
relevant areas outside the ken of ordinary laity, and
should include knowledge not possessed by the average trier
of fact who lacks the expert's skill, experience, training,
or education. A trial court's relevancy determination is
reviewed under the right/wrong standard.

State v. McDonnell, 141 Hawaiʻi 280, 291, 409 P.3d 684, 695

(2017) (cleaned up).

Tran contends Dr. Natarajan's testimony was not

relevant "because it did not make Tran's abuse more or less

probable, nor did it provide a reason to believe or not believe

[CW]." Tran's contention lacks merit. Dr. Natarajan testified

that, during her examination of CW, she detected a "transection

on the hymen" that was "consistent with a penetrating trauma to

[the hymen]." Dr. Natarajan's testimony was relevant with

regard to the jury's understanding of the medical evidence and

its determination of whether Tran sexually assaulted CW. See

State v. Irebaria, 55 Haw. 353, 356, 519 P.2d 1246, 1249 (1974)

("The legitimate tendency to establish a controverted fact is

5(. . .continued)
expert by knowledge, skill, experience, training, or
education may testify thereto in the form of an opinion or
otherwise. In determining the issue of assistance to the
trier of fact, the court may consider the trustworthiness
and validity of the scientific technique or mode of
analysis employed by the proffered expert.

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all that is required in order that proffered evidence be

relevant.") (cleaned up).

Tran contends that Dr. Bivens' testimony regarding

delayed reporting 6 was not relevant because the testimony did not

"make[] the fact of abuse more or less likely." Tran's

contention lacks merit. Expert testimony regarding delayed

reporting is relevant because it can assist the jury in

understanding the behavior of child sex abuse victims, and it is

therefore admissible so long as the expert does not make

"conclusory opinions that abuse did occur and that the child

victim's report of abuse is truthful and believable." See

McDonnell, 141 Hawaiʻi at 291-92, 409 P.3d at 695-96 (citation

omitted). The record reflects that Dr. Bivens did not make such

conclusory opinions.

Tran further contends Dr. Bivens' testimony regarding

"incest" was inflammatory and not relevant, and that Dr. Bivens'

definition of incest 7 was not consistent with HRS § 707-741(1)

(2014). The State called Dr. Bivens to testify about "the

interpersonal dynamics for inter-household child sexual abuse."

6 CW alleged that Tran started to sexually abuse her when she was
eight years old, but did not tell her mother until she was thirteen.

7 At trial, Dr. Bivens defined incest as follows:

Incest just refers to sex between an adult and a child when
the adult is a household member, could be a blood family
relative or a distant relative or a nonrelative, but
someone who lives in the family setting with the child.

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Dr. Bivens was qualified to testify as an expert in the field of

clinical psychology, and he defined the term "incest" within

that context. Dr. Bivens explained that: "The majority of child

sexual abuse occurs in the child's home. The second most

commonplace [sic] is in the molester's home. And obviously in

the case of incest, those two places are the same place." 8 We

conclude that Dr. Bivens' testimony was relevant in aiding the

jury's understanding of the dynamics of child sexual abuse.

(4) Tran contends the circuit court plainly erred when

it did not qualify Tran's witness as an expert in front of the

jury. 9 The HRE does not preclude the circuit court "from

declining to qualify a witness as an expert in front of the

jury, so long as the requisite foundation for the witness's

testimony is established." State v. Metcalfe, 129 Hawaiʻi 206,

226, 297 P.3d 1062, 1082 (2013) (cleaned up). Moreover,

"[d]etermination by the court that a witness qualifies as an

expert is binding upon the trier of fact only as this relates to

admissibility of the expert's testimony." HRE Rule 702 cmt.

(2014).

8 Dr. Bivens' testimony is relevant within the context of CW's
close relationship with Tran. CW testified that her father had lived with
Tran and his family for periods of time, and that she would sleep over at
Tran's home "for about a week or five days" each month.

9 Tran did not object when the circuit court decided to qualify
Nurse Wristen outside the presence of the jury. "A complete failure to
object will waive the point." See State v. Vliet, 91 Hawaiʻi 288, 299, 983
P.2d 189, 200 (1999) (citations omitted).

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On this record, we conclude that the circuit court did

not plainly err when it did not qualify Nurse Wristen as an

expert witness in the jury's presence.

(5) Tran contends the prosecutor's comments during the

State's opening, closing, and rebuttal statements constituted

prosecutorial misconduct. We review allegations of

prosecutorial misconduct under the harmless beyond a reasonable

doubt standard,

which requires an examination of the record and a
determination of whether there is a reasonable possibility
that the error complained of might have contributed to the
conviction. Factors considered are: (1) the nature of the
conduct; (2) the promptness of a curative instruction; and
(3) the strength or weakness of the evidence against the
defendant.

State v. Wakisaka, 102 Hawaiʻi 504, 513, 78 P.3d 317, 326 (2003)

(cleaned up).

We first address Tran's contention that the

prosecutor's opening statement presented an improper "factual

recitation of personal opinion." 10 In doing so, we observe that

10 Tran challenges the following statements made during the
prosecutor's opening statement:

[CW] was 8 years old. . . . When [the CW] was 8, a
man whom she loved and trusted was touching her and groping
her, and she didn't know what to do. He was touching her
private parts, her genitalia, with his hand. The first
time it was outside of her clothes. She hoped that her
daddy would walk through the front door. She was confused.
But her daddy did not walk through the front door for a
long time, and so [CW] just laid there and she took it.

The man who did that to [CW] is her dad's best
friend. He's seated next to defense counsel. He is
[Tran]. . . .
(continued . . .)

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Tran has not demonstrated the prosecutor's remarks were

"speculative," nor that they "refer[red] to things the evidence

10(. . .continued)

. . . .

From the time that [CW] was 8 to 12 years of age,
approximately from January of 2015 to January 31st of two
thousand -- of 2020, [Tran] repeatedly sexually molested
her. It occurred in the Pacific Heights homes that [Tran]
either shared with her father or in the home that he lived
in right next door to her father whenever [CW] would visit.
[Tran] would place his hand on [CW's] chest or on her
breast when she started developing breasts. [Tran] would
rub his hand on her breast over the clothes and skin to
skin. He would place his mouth on her breast, licking her
breast. . . .

[Tran] asked her if she wanted to have sex, and when
[CW] was 8 years old, she said yes. She didn't even know
what sex was. [Tran] placed his mouth on what she calls
her private part, in other words her genitalia. [Tran]
licked her genitalia, which made her feel very
uncomfortable. She was scared. [Tran] also inserted his
finger into her vagina, into what she calls her private
part, her genitals, and it hurt her, it caused her pain. .
. .

. . . .

[CW] wanted to tell. She was afraid to tell. She
tried to tell her mom on more than one occasion, and she
finally got the guts to tell her mother in May of 2020, on
Mother's Day. . . .

The doctor who performed the examination is highly
qualified. . . . The doctor examined [CW] and she found
that [CW] had genital trauma, in other words[,] an injury
consistent with sexual penetration with either a finger or
with a penis. . . . It's called a transection to the
hymen, in other words[,] a deep, healed tear to the hymen
that's consistent with sexual penetration.

At the conclusion of this case, the State will ask
that you find [Tran] guilty of the crime of Continuous
Sexual Assault of a Minor Under the Age of 14. [Tran] was
not related to [CW] in any way. The State will ask that
you find him guilty as charged because he violated [CW].

(Emphasis added.)

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[would] not (and did not) show." See State v. Sanchez, 82

Hawaiʻi 517, 528, 923 P.2d 934, 945 (App. 1996) ("The State

should only refer in the opening statement to evidence that it

has a genuine good-faith belief will be produced at trial.")

(cleaned up).

After careful review of the record, we also determine

that the prosecutor's opening remarks do not appear to express

her personal views as to Tran's guilt. See State v. Barrios,

139 Hawaiʻi 321, 329, 389 P.3d 916, 924 (2016) ("[I]t is

generally recognized under Hawaiʻi case law that prosecutors are

bound to refrain from expressing their personal views as to a

defendant's guilt or the credibility of witnesses.") (cleaned

up).

We next address Tran's contention that the

prosecutor's use of "we" and "us," during the State's closing

and rebuttal arguments, constituted prosecutorial misconduct.

"A prosecutor is allowed wide latitude in discussing the

evidence during closing argument . . . [and] may state, discuss,

and comment on the evidence as well as draw all reasonable

inferences from the evidence." State v. Pasene, 144 Hawaiʻi 339,

367, 439 P.3d 864, 892 (2019) (cleaned up). A prosecutor may

not, however, use inclusive pronouns in an attempt to "impl[y]

that the jury and the State ha[ve] similar interests and [are]

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working together" to convict the defendant. State v. Conroy,

148 Hawaiʻi 194, 202, 468 P.3d 208, 216 (2020).

The record reflects that the prosecutor used the words

"we" and "us" during her closing and rebuttal arguments in

general reference to evidence admitted (e.g., "we have . . . "),

or arguments made by the State (e.g., "we spoke about . . . ")

at trial. 11 Unlike in Conroy, it does not appear that "we" and

11 The prosecutor used "we" and "us" in the following context:

And we have little [CW] trying to protect herself in
a way that a child -- only a child could. We have the
unicorn onesie. And she told us that that was her way of
trying to keep from being molested by [Tran]. . . .

. . . .

At the beginning of this case, we spoke about child
witnesses. If the only witness was a child and believed --
and you believed that child, that you could convict, you
could find the defendant guilty.

. . . And we know that child molestation usually happens
behind closed doors[.]

. . . .

Members of the jury, although we spoke so much about
a single witness, this is a case that has even more than
the testimony of a single witness. . . .

. . . We have the testimony of [Dr. Natarajan], who is
very qualified. . . .

. . . .

What does [Dr. Bivens] tell us? He tells us that
it's not the stranger who comes out of the bushes. . . .

. . . .

. . . [CW's] mom would tell us that ages 10 and 11, that
[CW] started acting kind of strangely[.]

(continued . . .)

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"us" were used in the instant case to create an "implication of

unity" or "the suggestion of an alliance between the State and

the jury" against Tran. See id. at 202-03, 468 P.3d at 216-17.

We therefore conclude that the prosecutor's usage of "we" and

"us" was not improper when considered within the context of the

11(. . .continued)

. . . [CW's dad] would tell us [CW] had the run of the
house. [CW's dad] told us that [the] room was empty
sometimes because [Tran's] mother had a house somewhere
else. . . .

. . . .

. . . That [Tran] during the same time period, January 1,
2015, to January 31, 2020 -- that he intentionally or
knowingly resided or had recurring access -- that he
resided in the same house as [CW] or had recurring access
to her. We can check that off. . . .

. . . .

. . . And we're going to talk about different ways that
[CW] testified to each of these elements.

. . . .

. . . We have [Tran's] sister, who read the police reports
in this case, who read [CW's] transcript.

. . . .

. . . And lo and behold, we have the sister testifying
that she kicked [CW] out on Mother's Day. . . .

. . . .

. . . We have the brother saying that [Tran] worked 24/7
or worked 7 days a week during the middle of the night. . .
.
. . . .

. . . Well, the defense's own witness . . . tells us the
first line out of his mouth was, well, if my mother came --
was there. So that tells us that sometimes his mom slept
over somewhere else.

(Emphasis added.)

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prosecutor's statements, the evidence presented, and the

reasonable inferences that a jury could draw from the evidence.

See State v. Brown, 157 Hawaiʻi 354, 380-81, 577 P.3d 1045, 1071-

72 (2025) (determining that the prosecutor's use of "we know,"

during closing and rebuttal arguments, "were permissible turns

of phrase uttered in sentences drawing reasonable inferences

from the trial evidence and did not constitute prosecutorial

misconduct" when considering the facts and circumstances of the

case).

We finally consider Tran's contention that the

prosecutor, during rebuttal argument, improperly stated that

"The State asks that you return a just verdict in this case and

that you find [Tran] guilty as charged[.]" (Emphasis added.)

Tran did not object to the prosecutor's statement.

Nevertheless, the circuit court sua sponte struck the word

"just" from the record.

The prosecutor's reference to a "just" verdict was

improper because it "diverted the jury from its duty to decide

the case on the evidence." See Conroy, 148 Hawaiʻi at 202, 468

P.3d at 216 (cleaned up). We conclude, however, that the

circuit court's prompt curative action rendered the alleged

prosecutorial misconduct harmless beyond a reasonable doubt.

See Wakisaka, 102 Hawaiʻi at 513, 78 P.3d at 326.

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II. State's Point of Error

Pursuant to our conclusions in part I above, the

State's cross-appeal is moot. See State v. Okuda, 71 Haw. 434,

456, 795 P.2d 1, 13 (1990); State v. Cullen, 86 Hawaiʻi 1, 13,

946 P.2d 955, 967 (1997).

For the foregoing reasons, we affirm the Judgment.

DATED: Honolulu, Hawaiʻi, January 28, 2026.

On the briefs: /s/ Katherine G. Leonard
Presiding Judge
Thomas M. Otake,
for Defendant-Appellant/ /s/ Clyde J. Wadsworth
Cross-Appellee. Associate Judge

Daniel A.J. Hugo, /s/ Kimberly T. Guidry
Deputy Prosecuting Attorney, Associate Judge
City and County of Honolulu
for Plaintiff-Appellee/
Cross-Appellant.

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Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
28-JAN-2026
08:36 AM
Dkt. 102 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAIʻI

STATE OF HAWAIʻI, Plaintiff-Appellee/Cross-Appellant,
v.
ALVIN TRAN, Defendant-Appellant/Cross-Appellee

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

SUMMARY DISPOSITION ORDER
(By: Leonard, Presiding Judge, Wadsworth and Guidry, JJ.)

Defendant-Appellant/Cross-Appellee Alvin Tran (Tran)

appeals from the Circuit Court of the First Circuit's (circuit

court) December 10, 2024 "Judgment of Conviction and Sentence"

(Judgment). 1 Plaintiff-Appellee/Cross-Appellant State of Hawaiʻi

(State) cross-appeals from the circuit court's ruling on a

question of law adverse to the State, pursuant to Hawaii Revised

Statutes (HRS) § 641-13(5) (2016).

1 The Honorable Catherine H. Remigio presided.
NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER

On July 24, 2020, the State charged Tran by

Indictment, alleging that Tran committed "Continuous Sexual

Assault of a Minor Under the Age of Fourteen Years" in violation

of HRS § 707-733.6 (2014). A jury found Tran guilty as charged.

The circuit court sentenced Tran to a twenty-year term of

imprisonment. Tran appealed, and the State cross-appealed.

Tran raises multiple points of error on appeal,

contending that: (1) "[t]he circuit court reversibly erred by

not engaging in a colloquy with Tran to ensure that he

intelligently, knowingly, and voluntarily waived his right to

cross-examine [the complaining witness (CW)]"; (2) "[t]rial

counsel provided Tran with ineffective assistance of counsel by

not cross-examining [CW]"; (3) "[t]he circuit court reversibly

erred in instructing the jury . . . that the charged offense's

attendant circumstances element of the minor's age was a strict

liability element that did not require any mens rea"; (4) "[t]he

circuit court plainly erred in allowing the jury to consider Dr.

[Kayal] Natarajan's [(Dr. Natarajan)] testimony (in its

entirety), and Dr. [Alex] Biven[s' (Dr. Bivens)] testimony (also

in its entirety), because their testimony established its own

irrelevancy"; (5) "[t]he circuit court . . . plainly erred by

not qualifying the defense expert, [Tristan Wristen (Nurse

Wristen)], as an expert in front of the jury"; and (6) the

2
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prosecutor committed prosecutorial misconduct in her opening,

closing, and rebuttal statements. (Citations omitted.)

The State's cross-appeal raises one point of error,

contending that "[t]he circuit court erred by concluding

[Tran's] statements to the [CW] . . . required a separate

determination of voluntariness under HRS § 621-26."

Upon careful review of the record, briefs, and

relevant legal authorities, and having given due consideration

to the arguments advanced and the issues raised by the parties,

we resolve Tran and the State's points of error as follows:

I. Tran's Points of Error 2

(1) Tran contends the circuit court erred by not

conducting a colloquy to determine whether Tran waived his right

to cross-examine the CW. We review constitutional questions

under the right/wrong standard. State v. Fields, 115 Hawaiʻi

503, 511, 168 P.3d 955, 963 (2007).

"In all criminal prosecutions, the accused shall enjoy

the right . . . to be confronted with the witnesses against the

accused[.]" Haw. Const. art. I, § 14. "[T]he main and

essential purpose of confrontation is to secure for the

[defendant] the opportunity of cross-examination[.]" Birano v.

2 We address both Tran's first and second points of error in
section (1) below.

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State, 143 Hawaiʻi 163, 183, 426 P.3d 387, 407 (2018) (citation

omitted).

Tran does not cite to any case in which the Hawaiʻi

appellate courts have held that, notwithstanding defense

counsel's discretion to exercise appropriate trial strategy, a

judge must conduct a colloquy to obtain a criminal defendant's

express waiver of defendant's right to cross-examine a witness

for the prosecution. Indeed, in addressing this issue, the

Hawaiʻi Supreme Court explained that,

The right of confrontation is a fundamental constitutional
right of the accused. But, this right is not absolute and
defense counsel can waive certain aspects of the right
where such waiver is considered a matter of trial tactics
and procedure; in which event the trial court is not
required to determine whether defendant had knowingly and
voluntarily waived his right.

State v. Oyama, 64 Haw. 187, 189, 637 P.2d 778, 779-80 (1981)

(emphasis added) (citations omitted).

Here, the record reflects that Tran's defense counsel

made a tactical decision not to cross-examine CW. 3 We therefore

3 It appears that defense counsel's decision not to cross-examine
CW before the jury was part of the defense strategy. The record reflects
that defense counsel actively engaged in Tran's defense, raising several
objections during the prosecution's direct examination of CW. Trial
proceedings were briefly recessed after CW, who had been removed to a witness
room during a bench conference, began crying and "was not able to come back"
to the courtroom. During that recess, as the parties waited for CW to resume
her testimony, defense counsel expressed concerns regarding the presence of a
comfort dog within the courtroom itself, and of the relocation of the victim
witness counselor nearer to the witness stand. After the prosecutor
concluded her direct examination, defense counsel informed the circuit court
that he had "several objections that [he thought] would be better handled
from counsel table." Defense counsel subsequently moved for a mistrial, and
the circuit court ordered a recess to allow for a hearing on the

(continued . . .)

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conclude that the circuit court was not required to conduct a

colloquy to determine whether Tran knowingly and intelligently

waived his right to confrontation.

With regard to Tran's contention that defense counsel

was ineffective for failing to cross-examine CW, we consider

whether defense counsel's assistance, when "viewed as a whole,

. . . was within the range of competence demanded of attorneys

in criminal cases." State v. DeLeon, 131 Hawaiʻi 463, 479, 319

P.3d 382, 398 (2014) (citation omitted). Where a defendant

alleges "[s]pecific actions or omissions" that "ha[ve] an

obvious tactical basis for benefitting the defendant's case" as

error, such allegations "will not be subject to further

scrutiny." Id. (citation omitted); see also State v. Richie, 88

Hawaiʻi 19, 39, 960 P.2d 1227, 1247 (1998) ("[M]atters presumably

within the judgment of counsel, like trial strategy, will rarely

be second-guessed by judicial hindsight.") (cleaned up). Here,

the record reflects "an obvious tactical basis" underlying

defense counsel's decision to not cross-examine CW.

(2) Tran contends that the circuit court erred by

failing to instruct the jury of the State's "burden to prove

3(. . .continued)

voluntariness of statements made by Tran to CW. During that hearing, defense
counsel questioned CW regarding her statement that Tran "seemed stressed"
during their interactions. It was only after this hearing, and upon the
resumption of trial, that defense counsel informed the circuit court that
"defense has no questions for [CW]."

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[Tran's] mens rea as to [CW's] age." We review the propriety of

jury instructions de novo, and determine "whether, when read and

considered as a whole, the instructions given are prejudicially

insufficient, erroneous, inconsistent, or misleading." State v.

Kato, 147 Hawaiʻi 478, 490, 465 P.3d 925, 937 (2020) (cleaned

up).

Tran was charged pursuant to HRS § 707-733.6. By its

express terms, HRS § 707-733.6 prohibits the "continuous sexual

assault of a minor" who is "under the age of fourteen years." 4

HRS § 707-733.6 does not require proof that a person charged

with the offense have knowledge of the attendant circumstance of

the victim's age.

In State v. Buch, the Hawaiʻi Supreme Court clarified

that "a defendant is strictly liable with respect to the

attendant circumstance of the victim's age in a sexual assault."

4
HRS § 707-733.6 provides, in relevant part,

(1) A person commits the offense of continuous sexual
assault of a minor under the age of fourteen years if the
person:

(a) Either resides in the same home with a minor
under the age of fourteen years or has recurring
access to the minor; and

(b) Engages 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.

(Emphasis added.)

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83 Hawaiʻi 308, 315-16, 926 P.2d 599, 606-07 (1996). The court

explained that,

To further its policy of protecting children from sexual
exploitation by adults, the legislature expressly deleted
knowledge of the child's age as an element of sexual
assault offenses in which the child's age is an attendant
circumstance. By doing so, it fairly placed on the adult
the risk of mistake with respect to the child's age.

Id. at 320, 926 P.2d at 611 (examining the legislative history

of sexual offense statutes in which the child's age is an

attendant circumstance).

In sum, while HRS § 707-733.6 requires the State to

prove that CW was under the age of fourteen at the time of the

continuous sexual assault, it does not require the State to

prove that Tran knew CW was under the age of fourteen. We

therefore conclude that the circuit court's jury instructions

were not prejudicially insufficient, erroneous, inconsistent, or

misleading.

(3) Tran contends that the testimonies of Dr.

Natarajan and Dr. Bivens were not relevant, and that the circuit

court therefore erred by admitting their testimonies. In

reviewing the circuit court's determinations as to the relevancy

of expert witness testimony, 5 we are mindful that,

5 The admission of expert witness testimony is governed by Hawaii
Rules of Evidence (HRE) Rule 702, which states,

If scientific, technical, or other specialized knowledge
will assist the trier of fact to understand the evidence or
to determine a fact in issue, a witness qualified as an

(continued . . .)

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One of the touchstones of admissibility o[f] expert
testimony under HRE 702 is relevance. In determining the
relevancy issue, the trial courts' function is akin to the
relevancy analysis adopted in applying HRE Rules 401 (1993)
and 402 (1993). Expert testimony must assist the trier of
fact by providing a resource for ascertaining truth in
relevant areas outside the ken of ordinary laity, and
should include knowledge not possessed by the average trier
of fact who lacks the expert's skill, experience, training,
or education. A trial court's relevancy determination is
reviewed under the right/wrong standard.

State v. McDonnell, 141 Hawaiʻi 280, 291, 409 P.3d 684, 695

(2017) (cleaned up).

Tran contends Dr. Natarajan's testimony was not

relevant "because it did not make Tran's abuse more or less

probable, nor did it provide a reason to believe or not believe

[CW]." Tran's contention lacks merit. Dr. Natarajan testified

that, during her examination of CW, she detected a "transection

on the hymen" that was "consistent with a penetrating trauma to

[the hymen]." Dr. Natarajan's testimony was relevant with

regard to the jury's understanding of the medical evidence and

its determination of whether Tran sexually assaulted CW. See

State v. Irebaria, 55 Haw. 353, 356, 519 P.2d 1246, 1249 (1974)

("The legitimate tendency to establish a controverted fact is

5(. . .continued)
expert by knowledge, skill, experience, training, or
education may testify thereto in the form of an opinion or
otherwise. In determining the issue of assistance to the
trier of fact, the court may consider the trustworthiness
and validity of the scientific technique or mode of
analysis employed by the proffered expert.

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all that is required in order that proffered evidence be

relevant.") (cleaned up).

Tran contends that Dr. Bivens' testimony regarding

delayed reporting 6 was not relevant because the testimony did not

"make[] the fact of abuse more or less likely." Tran's

contention lacks merit. Expert testimony regarding delayed

reporting is relevant because it can assist the jury in

understanding the behavior of child sex abuse victims, and it is

therefore admissible so long as the expert does not make

"conclusory opinions that abuse did occur and that the child

victim's report of abuse is truthful and believable." See

McDonnell, 141 Hawaiʻi at 291-92, 409 P.3d at 695-96 (citation

omitted). The record reflects that Dr. Bivens did not make such

conclusory opinions.

Tran further contends Dr. Bivens' testimony regarding

"incest" was inflammatory and not relevant, and that Dr. Bivens'

definition of incest 7 was not consistent with HRS § 707-741(1)

(2014). The State called Dr. Bivens to testify about "the

interpersonal dynamics for inter-household child sexual abuse."

6 CW alleged that Tran started to sexually abuse her when she was
eight years old, but did not tell her mother until she was thirteen.

7 At trial, Dr. Bivens defined incest as follows:

Incest just refers to sex between an adult and a child when
the adult is a household member, could be a blood family
relative or a distant relative or a nonrelative, but
someone who lives in the family setting with the child.

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Dr. Bivens was qualified to testify as an expert in the field of

clinical psychology, and he defined the term "incest" within

that context. Dr. Bivens explained that: "The majority of child

sexual abuse occurs in the child's home. The second most

commonplace [sic] is in the molester's home. And obviously in

the case of incest, those two places are the same place." 8 We

conclude that Dr. Bivens' testimony was relevant in aiding the

jury's understanding of the dynamics of child sexual abuse.

(4) Tran contends the circuit court plainly erred when

it did not qualify Tran's witness as an expert in front of the

jury. 9 The HRE does not preclude the circuit court "from

declining to qualify a witness as an expert in front of the

jury, so long as the requisite foundation for the witness's

testimony is established." State v. Metcalfe, 129 Hawaiʻi 206,

226, 297 P.3d 1062, 1082 (2013) (cleaned up). Moreover,

"[d]etermination by the court that a witness qualifies as an

expert is binding upon the trier of fact only as this relates to

admissibility of the expert's testimony." HRE Rule 702 cmt.

(2014).

8 Dr. Bivens' testimony is relevant within the context of CW's
close relationship with Tran. CW testified that her father had lived with
Tran and his family for periods of time, and that she would sleep over at
Tran's home "for about a week or five days" each month.

9 Tran did not object when the circuit court decided to qualify
Nurse Wristen outside the presence of the jury. "A complete failure to
object will waive the point." See State v. Vliet, 91 Hawaiʻi 288, 299, 983
P.2d 189, 200 (1999) (citations omitted).

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On this record, we conclude that the circuit court did

not plainly err when it did not qualify Nurse Wristen as an

expert witness in the jury's presence.

(5) Tran contends the prosecutor's comments during the

State's opening, closing, and rebuttal statements constituted

prosecutorial misconduct. We review allegations of

prosecutorial misconduct under the harmless beyond a reasonable

doubt standard,

which requires an examination of the record and a
determination of whether there is a reasonable possibility
that the error complained of might have contributed to the
conviction. Factors considered are: (1) the nature of the
conduct; (2) the promptness of a curative instruction; and
(3) the strength or weakness of the evidence against the
defendant.

State v. Wakisaka, 102 Hawaiʻi 504, 513, 78 P.3d 317, 326 (2003)

(cleaned up).

We first address Tran's contention that the

prosecutor's opening statement presented an improper "factual

recitation of personal opinion." 10 In doing so, we observe that

10 Tran challenges the following statements made during the
prosecutor's opening statement:

[CW] was 8 years old. . . . When [the CW] was 8, a
man whom she loved and trusted was touching her and groping
her, and she didn't know what to do. He was touching her
private parts, her genitalia, with his hand. The first
time it was outside of her clothes. She hoped that her
daddy would walk through the front door. She was confused.
But her daddy did not walk through the front door for a
long time, and so [CW] just laid there and she took it.

The man who did that to [CW] is her dad's best
friend. He's seated next to defense counsel. He is
[Tran]. . . .
(continued . . .)

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Tran has not demonstrated the prosecutor's remarks were

"speculative," nor that they "refer[red] to things the evidence

10(. . .continued)

. . . .

From the time that [CW] was 8 to 12 years of age,
approximately from January of 2015 to January 31st of two
thousand -- of 2020, [Tran] repeatedly sexually molested
her. It occurred in the Pacific Heights homes that [Tran]
either shared with her father or in the home that he lived
in right next door to her father whenever [CW] would visit.
[Tran] would place his hand on [CW's] chest or on her
breast when she started developing breasts. [Tran] would
rub his hand on her breast over the clothes and skin to
skin. He would place his mouth on her breast, licking her
breast. . . .

[Tran] asked her if she wanted to have sex, and when
[CW] was 8 years old, she said yes. She didn't even know
what sex was. [Tran] placed his mouth on what she calls
her private part, in other words her genitalia. [Tran]
licked her genitalia, which made her feel very
uncomfortable. She was scared. [Tran] also inserted his
finger into her vagina, into what she calls her private
part, her genitals, and it hurt her, it caused her pain. .
. .

. . . .

[CW] wanted to tell. She was afraid to tell. She
tried to tell her mom on more than one occasion, and she
finally got the guts to tell her mother in May of 2020, on
Mother's Day. . . .

The doctor who performed the examination is highly
qualified. . . . The doctor examined [CW] and she found
that [CW] had genital trauma, in other words[,] an injury
consistent with sexual penetration with either a finger or
with a penis. . . . It's called a transection to the
hymen, in other words[,] a deep, healed tear to the hymen
that's consistent with sexual penetration.

At the conclusion of this case, the State will ask
that you find [Tran] guilty of the crime of Continuous
Sexual Assault of a Minor Under the Age of 14. [Tran] was
not related to [CW] in any way. The State will ask that
you find him guilty as charged because he violated [CW].

(Emphasis added.)

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[would] not (and did not) show." See State v. Sanchez, 82

Hawaiʻi 517, 528, 923 P.2d 934, 945 (App. 1996) ("The State

should only refer in the opening statement to evidence that it

has a genuine good-faith belief will be produced at trial.")

(cleaned up).

After careful review of the record, we also determine

that the prosecutor's opening remarks do not appear to express

her personal views as to Tran's guilt. See State v. Barrios,

139 Hawaiʻi 321, 329, 389 P.3d 916, 924 (2016) ("[I]t is

generally recognized under Hawaiʻi case law that prosecutors are

bound to refrain from expressing their personal views as to a

defendant's guilt or the credibility of witnesses.") (cleaned

up).

We next address Tran's contention that the

prosecutor's use of "we" and "us," during the State's closing

and rebuttal arguments, constituted prosecutorial misconduct.

"A prosecutor is allowed wide latitude in discussing the

evidence during closing argument . . . [and] may state, discuss,

and comment on the evidence as well as draw all reasonable

inferences from the evidence." State v. Pasene, 144 Hawaiʻi 339,

367, 439 P.3d 864, 892 (2019) (cleaned up). A prosecutor may

not, however, use inclusive pronouns in an attempt to "impl[y]

that the jury and the State ha[ve] similar interests and [are]

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working together" to convict the defendant. State v. Conroy,

148 Hawaiʻi 194, 202, 468 P.3d 208, 216 (2020).

The record reflects that the prosecutor used the words

"we" and "us" during her closing and rebuttal arguments in

general reference to evidence admitted (e.g., "we have . . . "),

or arguments made by the State (e.g., "we spoke about . . . ")

at trial. 11 Unlike in Conroy, it does not appear that "we" and

11 The prosecutor used "we" and "us" in the following context:

And we have little [CW] trying to protect herself in
a way that a child -- only a child could. We have the
unicorn onesie. And she told us that that was her way of
trying to keep from being molested by [Tran]. . . .

. . . .

At the beginning of this case, we spoke about child
witnesses. If the only witness was a child and believed --
and you believed that child, that you could convict, you
could find the defendant guilty.

. . . And we know that child molestation usually happens
behind closed doors[.]

. . . .

Members of the jury, although we spoke so much about
a single witness, this is a case that has even more than
the testimony of a single witness. . . .

. . . We have the testimony of [Dr. Natarajan], who is
very qualified. . . .

. . . .

What does [Dr. Bivens] tell us? He tells us that
it's not the stranger who comes out of the bushes. . . .

. . . .

. . . [CW's] mom would tell us that ages 10 and 11, that
[CW] started acting kind of strangely[.]

(continued . . .)

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"us" were used in the instant case to create an "implication of

unity" or "the suggestion of an alliance between the State and

the jury" against Tran. See id. at 202-03, 468 P.3d at 216-17.

We therefore conclude that the prosecutor's usage of "we" and

"us" was not improper when considered within the context of the

11(. . .continued)

. . . [CW's dad] would tell us [CW] had the run of the
house. [CW's dad] told us that [the] room was empty
sometimes because [Tran's] mother had a house somewhere
else. . . .

. . . .

. . . That [Tran] during the same time period, January 1,
2015, to January 31, 2020 -- that he intentionally or
knowingly resided or had recurring access -- that he
resided in the same house as [CW] or had recurring access
to her. We can check that off. . . .

. . . .

. . . And we're going to talk about different ways that
[CW] testified to each of these elements.

. . . .

. . . We have [Tran's] sister, who read the police reports
in this case, who read [CW's] transcript.

. . . .

. . . And lo and behold, we have the sister testifying
that she kicked [CW] out on Mother's Day. . . .

. . . .

. . . We have the brother saying that [Tran] worked 24/7
or worked 7 days a week during the middle of the night. . .
.
. . . .

. . . Well, the defense's own witness . . . tells us the
first line out of his mouth was, well, if my mother came --
was there. So that tells us that sometimes his mom slept
over somewhere else.

(Emphasis added.)

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prosecutor's statements, the evidence presented, and the

reasonable inferences that a jury could draw from the evidence.

See State v. Brown, 157 Hawaiʻi 354, 380-81, 577 P.3d 1045, 1071-

72 (2025) (determining that the prosecutor's use of "we know,"

during closing and rebuttal arguments, "were permissible turns

of phrase uttered in sentences drawing reasonable inferences

from the trial evidence and did not constitute prosecutorial

misconduct" when considering the facts and circumstances of the

case).

We finally consider Tran's contention that the

prosecutor, during rebuttal argument, improperly stated that

"The State asks that you return a just verdict in this case and

that you find [Tran] guilty as charged[.]" (Emphasis added.)

Tran did not object to the prosecutor's statement.

Nevertheless, the circuit court sua sponte struck the word

"just" from the record.

The prosecutor's reference to a "just" verdict was

improper because it "diverted the jury from its duty to decide

the case on the evidence." See Conroy, 148 Hawaiʻi at 202, 468

P.3d at 216 (cleaned up). We conclude, however, that the

circuit court's prompt curative action rendered the alleged

prosecutorial misconduct harmless beyond a reasonable doubt.

See Wakisaka, 102 Hawaiʻi at 513, 78 P.3d at 326.

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II. State's Point of Error

Pursuant to our conclusions in part I above, the

State's cross-appeal is moot. See State v. Okuda, 71 Haw. 434,

456, 795 P.2d 1, 13 (1990); State v. Cullen, 86 Hawaiʻi 1, 13,

946 P.2d 955, 967 (1997).

For the foregoing reasons, we affirm the Judgment.

DATED: Honolulu, Hawaiʻi, January 28, 2026.

On the briefs: /s/ Katherine G. Leonard
Presiding Judge
Thomas M. Otake,
for Defendant-Appellant/ /s/ Clyde J. Wadsworth
Cross-Appellee. Associate Judge

Daniel A.J. Hugo, /s/ Kimberly T. Guidry
Deputy Prosecuting Attorney, Associate Judge
City and County of Honolulu
for Plaintiff-Appellee/
Cross-Appellant.

17