State v. Hans

LAW Lzasaav
NOT FOR PUBLICATION WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER

NO. 29948
IN THE INTERMEDlATE COURT OF APPEALS

OF THE STATE OF HAWAfI

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STATE oF HAWA:‘I, Plainv;iff~z).ppellee, §

v. W§

JUN:US HANS`, aka JoLIE, Defendant-Appellan. §§
APPEAL FRoM THE CIRCUIT coURT oF THE FIRST CIR<£§£_§J"’£,_'§ .:._1
(CRIM:NAL No. 06-1-2383) " “£ m

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SUMMARY DlSPOSlTlON ORDER
(By: Nakamura, C.J., Foley and Reifurth, JJ.)

This case addresses the state of mind, or knowledge of
a victim's age, required for conviction of sexual assault in the
first degree under Hawaii Revised Statutes

(HRS) § 707-730(l)(C)
(Supp. 2009) (the statute).

Defendant-Appellant Junius Hans, also known as Jolie
appeals from the Judgment of Conviction and Sentence
entered on June 23,

(Hans),

2009, by the Circuit Court of the First

Circuit (circuit court).F

Hans was found by the jury to be guilty on two counts
of Sexual Assault in the First Degree in violation of the
statute, and not guilty of Sexual Assault in the Third Degree in
violation of HRS § 707-732(l)(c) Hans was sentenced to twenty
years of incarceration on each count,

to be served concurrently,
with credit for time served.

On appeal, Hans contends that (l) the circuit court

erred by denying him the mistake of fact defense, and (2) the

statute was unconstitutional. As to his first point of error,

Hans contends that the circuit court erred in (a) granting the
State's motion in limine to preclude Hans from raising any
mistake of fact issue, (b) denying Hans’ motion for judgment of

acquittal{ and (c) refusing to provide the jury with a mistake of
fact instruction. As to his second point of error,

Hans contends
that the statute is unconstitutional because it violates the

equal protection clause of the Fourteenth Amendment of the U.S.

-1-/ The Honorable Michael A. Town presided.

(33'\\.~3

NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER

Constitution or article I, section 5 of the Hawai‘i Constitution.
Upon careful review of the record and the briefs,
arguments and issues submitted by the parties, we affirm the

circuit court's judgment for the reasons discussed below.

l. APPELLANT WAS NOT ENTlTLED TO RAISE A MISTAKE OF FACT
DEFENSE, AND THUS THE ClRCUlT COURT DlD NOT ERR

Hans contends that the circuit court should have
allowed him to argue mistake of fact regarding the victim's age
as a defense at trial because, he claims, the State is required
to prove that he had knowledge of the victim's age under the
statute. The circuit court was correct, however, in determining
that the HawaiH.Supreme Court's decision in State v. Buch, 83
Hawafi 308, 926 P.2d 599 (l996), precluded the mistake of fact
defense under these circumstances.

First degree sexual assault occurs when the defendant
"knowingly" engages in the act of sexual penetration with a
person of fourteen or fifteen years of age, and who is at least

five years younger and not married to the defendant:

[a] person commits the offense of sexual assault in the
first degree if . . . . [t]he person knowingly engages in
sexual penetration with a person who is at least fourteen
years old but less than sixteen years; provided that

[t]he person is not less than five years older than the
minor . . . and [t]he person is not legally married to the
minor.

Haw. Rev. Stat. §707-730(l)(c) (emphasis added).

Hans argues that the "knowingly" requirement should
apply to each element of the offense, but this is contrary to the
supreme court's ruling in Buch. In Buch, the supreme court
considered the meaning of the word "knowingly" in a similarly

worded subsection that defined third degree sexual assault:

"[A] person commits the offense of sexual assault in the
third degree if . . . [t]he person knowingly subjects to
sexual contact another person who is less than fourteen
years old or causes such a person to have sexual contact
with the person."

Buch, 83 HawaFi at 309, n. l, 926 P.2d at 600, n. 1 (quoting
Haw. Rev. Stat. § 707-732(l)(b) (l993)).

The supreme court concluded that "[t]he legislative
history unequivocally indicates that, where the age of the victim

is an element of a sexual offense, the specified state of mind is

2

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not intended to apply to that element." Buch, 83 Hawai‘i at 3l6,
926 P.2d at 607. In sum, a defendant is responsible for knowing,
and cannot defend on the basis of not knowing, the victim's age.
This result is consistent with the history of intent

requirements concerning victims' ages in Hawafi‘s sexual assault
laws. Hawafi courts have consistently held that knowledge
regarding the victim's age is not required for a conviction under
sexual assault statutes covering crimes against minors. See
State V. Silva, 53 HaW. 232, 233, 419 P.2d l2l6, l2l7 (l97l)
(noting that the offense of statutory rape has long been held to
denounce the mere doing of the act as criminal, regardless of the
perpetrator's state of mind). Nothing in the law or the
legislative history to the sexual offense statutes (HRS §§ 707-
730, et. seq.) that has been amended since Buch was issued
supports Appellant's contention that the legislature intended to
make knowledge of the victim's age an element of the offense.
Therefore, the circuit court did not err in granting the State's
motion in limine precluding Hans from raising any mistake of fact
issue, refusing to provide the jury with a mistake of fact

instruction, or in denying Hans' motion for judgment of acquital.

Il. APPELLANT'S CLAlM THAT THE STATUTE lS UNCONSTITUTIONAL WAS
NOT PROPERLY PRESERVED OR PRESENTED
In his opening brief, Hans contends that the statute is
unconstitutional under both the United States and HawaiT_
Constitutions. As the Appellant himself observes, however, his
constitutional arguments were not raised in the circuit court.
"Legal issues not raised in the trial court are

ordinarily deemed waived on appeal." Ass'n of Apt. Owners of
Wailea Elua v. Wailea Res@rt c@., 100 Hawai‘i 97, 107, 58 1;>.3<1
608, 618 (2002). We therefore decline to address the merits of
the Appellant's constitutional claim. See Mblinar v. Schweizer,
95 Hawai‘i 331, 339, 22 P.?,d 978, 936 (2001> (constitutional
objection raised for the first time on appeal was not addressed
because it was not properly raised in the trial court). See also
Haw. R. App. Pro. 28(b)(4) (requiring a concise statement of the

points of error, including where in the record the alleged error

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was objected to or brought to the attention of the court or

agency).

l l l . CONCLUS l ON

For the aforementioned reasons, the June 23, 2009
Judgment of Conviction and Sentence entered in the Circuit Court
of the First Circuit is affirmed.

DATED: Honolulu, Hawafi, June 2, 2010,

On the briefs: éZ&éz-2Y<;ZZ2j;§%n¢4oV,__/

Dana S. Ishibashi Chief Judge

for Defendant~Appellant. {Z2Q%¢e4/7 »~/”
Stephen K. Tsushima, /gi
Deputy Prosecuting Attorney, Associate Judge

City & County of Honolulu,
far Piainr;iff»p.ppeiie@. gum/nam

Associate Judge