State v. Gonzaga

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Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
27-JAN-2026
08:07 AM
Dkt. 117 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAIʻI

STATE OF HAWAIʻI, Plaintiff-Appellee,
v.
BRANDON GONZAGA, Defendant-Appellant.

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

SUMMARY DISPOSITION ORDER
(By: Leonard, Presiding Judge, Hiraoka and McCullen, JJ.)

Defendant-Appellant Brandon Gonzaga appeals the

Circuit Court of the Second Circuit's 1 April 11, 2024 Judgment of

Conviction and Sentence on a single count of Sexual Assault in

the First Degree, in violation of Hawaiʻi Revised Statutes (HRS)

1 The Honorable Peter T. Cahill presided. We note that at all relevant
times, including at trial, the complaining witness (Minor) was under the age
of eighteen.
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§ 707-730(1)(b) (2014). 2 On appeal, Gonzaga challenges: (1) the

credibility and competency of the complaining witness (Minor);

(2) the charging instrument; (3) the jury instructions; (4) the

failure to further clarify the verdict; and (5) the failure to

further investigate the alleged misconduct of an alternate

juror. 3

Upon careful review of the record and the briefs

submitted by the parties, and having given due consideration to

the issues raised and the arguments advanced, we resolve the

points of error as discussed below and affirm.

In 2020, the State indicted Gonzaga on twenty-one

counts of Sexual Assault in the First Degree and two counts of

2 The 2014 version of HRS § 707-730(1)(b), "Sexual assault in the first
degree," provides in relevant part that "[a] person commits the offense of
sexual assault in the first degree if . . . [t]he person knowingly engages in
sexual penetration with another person who is less than fourteen years
old[.]" The definition of "sexual penetration" provides that "each act of
sexual penetration shall constitute a separate offense." HRS § 707-700
(2014).

3 In addition, Gonzaga raises two other points of error that we decline
to reach:

First, Gonzaga alleges prosecutorial misconduct on appeal but makes no
specific argument and cites no authority in his opening brief to explain how
the identified conduct amounted to prosecutorial misconduct. See Hawaiʻi
Rules of Appellate Procedure (HRAP) Rule 28(b)(7) ("Points not argued may be
deemed waived.") And Gonzaga did not object to any of the challenged
statements at trial. Although this court may, at its option, review alleged
prosecutorial misconduct for plain error, we decline to do so. See State v.
Willis, 156 Hawaiʻi 195, 204, 572 P.3d 668, 677 (2025); HRAP Rule 28(b)(4).

Next, Gonzaga argues that the circuit court abused its discretion when
it declined to stay his judgment and sentence pending appeal pursuant to HRS
§ 804-4(b) (Supp. 2019), because the court applied the incorrect standard.
Based on our disposition of the other issues in this case, we need not reach
this point of error.

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Sexual Assault in the Third Degree. Each count alleged

different sexual acts involving Minor, who was under the age of

fourteen at all times alleged, during various timeframes,

usually spanning one or two months, between January 1, 2018, and

August 31, 2019. Relevant to this appeal is Count Six,

occurring between April 1 and May 31, 2018:

That during or about the period of April 1, 2018,
through May 31, 2018, inclusive, County of Maui, State of
[Hawaiʻi], BRANDON GONZAGA did knowingly engage in sexual
penetration with another person who is less than fourteen
(14) years old, by vaginal intercourse, thereby committing
the offense of Sexual Assault in the First Degree in
violation of Section 707-730(1)(b) of the [Hawaiʻi] Revised
Statutes.

During trial, Minor testified with specificity to the

first time Gonzaga sexually assaulted her, explaining that after

groping her breasts and butt while she was lying on her bed

playing on her cellphone, Gonzaga pulled aside Minor's spandex

shorts and penetrated her vagina with his penis. This occurred

prior to April 2018, while Gonzaga and Minor's mother were

dating but were still living separately. Minor was eleven years

old at the time.

In April 2018, Minor and her mother moved into a

larger apartment with Gonzaga. The second apartment, which was

on the same property, had become vacant in March 2018, following

the death of the landowner's father, who had previously occupied

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the apartment. 4 Minor testified that after moving into the

larger apartment with Gonzaga, "the same kinds of things"

continued to happen. Minor specifically testified that in April

and May 2018, Gonzaga engaged in sexual intercourse with her

several times a week, unless she was on her period. Minor

testified that the abuse continued until August 2019.

Minor explained that Gonzaga would buy her things in

exchange for sex, including a new iPhone, an expensive

microphone, and glue to make slime. Minor testified, "It was

like a routine. It was happening every time. I knew when every

time I wanted something, it would be for sex."

Gonzaga exercised his right to not testify.

The jury found Gonzaga guilty only as to Count Six.

The circuit court entered its Judgment of Conviction and

Sentence as to Count Six, and Gonzaga timely appealed.

On appeal, Gonzaga challenges: (1) the credibility

and competency of Minor; (2) the charging instrument; (3) the

jury instructions; (4) the failure to further clarify the

verdict; and (5) the failure to further investigate alleged

misconduct of an alternate juror. We affirm.

4 The death of the landowner's father, Harry Furomoto, and thus the
approximate date of the move, was corroborated by his obituary, which was
admitted into evidence.

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(1) First, challenging Minor's credibility and

competency, Gonzaga contends that there was insufficient

evidence adduced at trial to support his conviction.

Gonzaga argues Minor was not credible as she "claimed

that 'God' was 'speaking through her.'" However, "it is well-

settled that an appellate court will not pass upon issues

dependent upon the credibility of witnesses." State v. Pulse,

83 Hawaiʻi 229, 244-45, 925 P.2d 797, 812-13 (1996) (brackets

omitted).

Gonzaga also argues the circuit court committed plain

error by not ordering a hearing on Minor's competency to

testify. According to Gonzaga, Minor's testimony called into

question her competency to testify pursuant to Hawaiʻi Rules of

Evidence (HRE) Rule 603.1 and that, under State v. Kelekolio, 74

Haw. 479, 849 P.2d 58 (1993), the circuit court was required to

order sua sponte a competency hearing for Minor "once [Minor]

began claiming that she was no longer testifying herself, and

that instead 'God' was testifying 'for her'." Gonzaga also

argues that Minor's "claimed divine intervention" made it

"impossible to successfully impeach her."

As an initial matter, Gonzaga misstates Minor's

testimony. While it is true that Minor initially testified "God

just comes in and he speaks for me," she clarified on redirect

that God "wasn't speaking for me. It was me speaking, but he

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was speaking through me." She explained that her faith in God

helped her overcome her fear of speaking about her experiences.

And Minor testified that being asked questions by the attorneys

"triggered" memories that she had tried to forget.

Turning to Gonzaga's argument, under HRE Rule 603.1,

"[a] person is disqualified to be a witness if the person is

(1) incapable of expressing oneself so as to be understood,

either directly or through interpretation by one who can

understand the person, or (2) incapable of understanding the

duty of a witness to tell the truth."

In Kelekolio, the Hawaiʻi Supreme Court held that a

trial court commits plain error where a complainant's competency

to testify is reasonably called into question and the trial

court does not engage in an independent inquiry and make express

findings as to competency. 74 Haw. at 528, 849 P.2d at 80.

There, a "Handi-Van" driver was convicted of kidnapping and

sexually assaulting his lone passenger, a woman with Down's

Syndrome and "the cognitive level of a four- to seven-year-old

child." Id. at 486-87, 849 P.2d at 62-63. The court noted the

trial court made no finding of competency despite complainant's

competency to testify being reasonably called into question

because:

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(1) when asked whether lying was good or bad, the
complainant responded, "Good"; (2) the complainant was
unable to identify Kelekolio, who was present in court,
although she repeatedly referred to him in her testimony by
name; and (3) the complainant did not appear to understand
the meaning of particular sexual and other terms (i.e.,
"rape" and "kidnap") that she employed in her testimony.

Id. at 528, 849 P.2d at 80.

Unlike Kelekolio, nothing in the record suggests that

Minor did not understand relevant sexual or other terms during

her trial testimony at the age of sixteen. See HRE Rule 603.1.

Similarly, nothing in the record suggests that Minor suffered

from any cognitive impairment that would limit her understanding

of her duty to tell the truth. See id. Minor explained the

differences in her testimony at trial and when she first

reported the abuse as resulting from her age and lack of

experience at the time of the sexual abuse compared to her

increased knowledge at the time of trial: "I didn't even know

what the heck half of the things were called that he was doing

to me. I was just saying what happened. I was so innocent and

young." The facts here differ materially from those of

Kelekolio.

Because Minor's competency had not been reasonably

called into question, a competency hearing was not required.

Thus, the circuit court did not plainly err.

(2) In his second point of error, Gonzaga contends

that, under State v. Modica, 58 Haw. 249, 567 P.2d 420 (1977),

and State v. Sasai, 143 Hawaiʻi 285, 429 P.3d 1214 (2018), he
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should have instead been charged with a single count of

Continuous Sexual Assault of a Minor Under the Age of Fourteen

Years (Continuous Sexual Assault), in violation of HRS § 707-

733.6(1) (2014). 5

In Modica, the Hawaiʻi Supreme Court explained, where

the proof for two separate crimes is identical, a conviction

under the statute prescribing the more severe sentence violates

due process and equal protections under the law. 58 Haw. at

251, 567 P.2d at 422. The "chief concern" of the Modica rule,

5 HRS § 707-733.6, "Continuous sexual assault of a minor under the age
of fourteen years," provides:

(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.

(2) To convict under this section, the trier of
fact, if a jury, need unanimously agree only that the
requisite number of acts have occurred; the jury need not
agree on which acts constitute the requisite number.

(3) No other felony sex offense involving the same
victim may be charged in the same proceeding with a charge
under this section, unless the other charged offense
occurred outside the period of the offense charged under
this section, or the other offense is charged in the
alternative. A defendant may be charged with only one
count under this section, unless more than one victim is
involved, in which case a separate count may be charged for
each victim.

(4) Continuous sexual assault of a minor under the
age of fourteen years is a class A felony.

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the Hawaiʻi Supreme Court has emphasized, is limiting

"[u]nbridled prosecutorial discretion." Sasai, 143 Hawaiʻi at

296, 429 P.3d at 1225.

The Hawaiʻi Supreme Court subsequently restated the

Modica rule in Sasai:

In sum, the Modica rule requires the court to answer
three questions: (1) whether defendant's alleged conduct
is punishable under either of two statutory provisions;
(2) whether the elements of proof essential to conviction
under the statutes are exactly the same; and, (3) whether
the punishment for the offense with which the defendant was
charged or convicted is greater than the punishment for the
alternative offense.

Id. at 296, 429 P.3d at 1225 (citing Modica, 58 Haw. at 250-51,

567 P.2d at 421-22). Because the Modica test is stated in the

conjunctive, all three prongs must be satisfied for a charging

instrument to violate Modica. See, e.g., State v. Whitley, 65

Haw. 486, 487, 654 P.2d 354, 355 (1982) (per curiam) (explaining

that where a test is stated in the conjunctive, all prongs of

the test must be satisfied to prevail).

Focusing on the second prong, the elements of the two

offenses are not "exactly the same." See Sasai, 143 Hawaiʻi at

296, 429 P.3d at 1225. Continuous Sexual Assault requires proof

of three or more acts of penetration and that Gonzaga resided

with or had recurring access to Minor. Sexual Assault in the

First Degree does not. Contrast HRS § 707-733.6(1)(a), with HRS

§ 707-730(1)(b); see State v. Barrios, 139 Hawai‘i 321, 335, 389

P.3d 916, 930 (2016) (explaining that "the State believed it was

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able to obtain convictions in individual counts of sexual

assault, and charged Barrios accordingly," and "it was within

the circuit court's discretion to sentence Barrios according to

the number of felonies for which he was convicted instead of

following the required sentence for a single conviction of

continuous sexual assault").

Thus, contrary to Gonzaga's contention, the circuit

court did not abuse its discretion by denying his motion to

dismiss based on Modica.

(3) Third, Gonzaga challenges the circuit court's

jury instructions on the basis that Jury Instruction 14 6 was

6 Jury Instruction 14, as read to the jury, provided:

During the trial you heard the testimony of one or
more witnesses who were described as experts.

Training and experience may make a person an expert
in a particular field. The law allows that person to state
an opinion about matters in that field. Merely because
such a witness has expressed an opinion does not mean,
however, that you must accept this opinion. It is up to
you to decide whether to accept this testimony and how much
weight to give it. You must also decide whether the
witness's opinions were based on sound reasons, judgment,
and information.

In this case, you heard testimony from William
Kepler, M.D. Dr. Kepler described the physical examination
that he conducted of [Minor] and his findings. It is up to
you to decide whether to accept or reject this testimony
and if accepted how much weight to give it.

Dr. Kepler did not reach any conclusions or render
any opinions on the cause of what he found during his
physical examination of [Minor]. You may not consider that
testimony as evidence that the defendant had sexually
penetrated or contacted [Minor].

(Formatting altered and emphasis added.) Gonzaga did not object to the
instruction as read to the jury.

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misleading. Specifically, Gonzaga argues, Jury Instruction 14

"ostensibly left the jury wondering why Dr. Kepler's expert

testimony was admitted at all if they were not allowed to

consider it for the very purpose for which it was offered —

i.e., to evaluate whether the physical findings were consistent

with sexual penetration, or not consistent."

When jury instructions or the omissions thereof are
at issue on appeal, the standard of review is whether, when
read and considered as a whole, the instructions given are
prejudicially insufficient, erroneous, inconsistent, or
misleading. . . . In that context, the real question
becomes whether there is a reasonable possibility that
error might have contributed to conviction. If there is
such a reasonable possibility in a criminal case, then the
error is not harmless beyond a reasonable doubt, and the
judgment of conviction on which it may have been based must
be set aside.

State v. Masuda-Mercado, 157 Hawaiʻi 116, 124, 575 P.3d 749, 757

(2025) (quoting State v. Nichols, 111 Hawaiʻi 327, 334, 141 P.3d

974, 981 (2006)).

Dr. Kepler testified that the two deep hymenal notches

observed during his examination of Minor were consistent with -

but not conclusive of - a history of sexual penetration. The

circuit court instructed the jury, "You may not consider that

testimony as evidence that the defendant had sexually penetrated

or contacted [Minor]."

Effectively, this limiting instruction precluded the

jury from concluding, based on Dr. Kepler's testimony alone,

that Gonzaga sexually assaulted Minor. This instruction was not

inconsistent or misleading as Dr. Kepler had no medical basis to

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opine that Gonzaga sexually assaulted Minor. And Gonzaga makes

no other argument as to how any potential error might have

contributed to his conviction.

Therefore, the circuit court's instruction did not

amount to reversible error.

(4) Fourth, Gonzaga contends the circuit court abused

its discretion by failing "to clarify the record after the

polling elicited further confusion and inconsistency on the

verdict, and raised serious questions as to the unanimity of the

guilty verdict."

Here, the circuit court polled the jury as to Count

Six to ensure unanimity. The record reflects that there was

initial confusion about which count was being polled. However,

the circuit court then took steps to clarify that it was polling

as to Count Six, at which point polling of the jury showed

unanimity as to result: guilty as charged.

Gonzaga argues, "The trial court's failure to conduct

further inquiry into the confusing status of the juror's

unanimous agreement as to guilt, Defendant's fundamental right

to a fair trial was violated." However, Gonzaga points to

nothing in the record evincing confusion or inconsistency after

the circuit court took appropriate steps to confirm the

unanimity of the verdict. Indeed, the juror's ultimate response

was identical to every other juror polled.

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On this record, we cannot conclude that the circuit

court abused its discretion.

(5) Finally, Gonzaga contends that the circuit court

erred in denying his request for further investigation of

alleged misconduct by an alternate juror because the circuit

court did not follow the procedure required under State v. Chin,

135 Hawaiʻi 437, 353 P.3d 979 (2015). Specifically, Gonzaga

argues that "[t]he record plainly indicates evidence that an

alternate juror discussed the case with a co-worker during trial

and debated Defendant's guilt prior to close of evidence" and

that "[t]his was enough evidence to necessitate and trigger an

inquiry of the alternate juror."

Under controlling caselaw, if the court determines the

juror's conduct rises to the level of potentially substantial

prejudice, it must then investigate the totality of the

circumstances. Chin, 135 Hawaiʻi at 445, 353 P.3d at 987.

Here, the record shows that the circuit court

investigated the alleged misconduct at an evidentiary hearing.

The court concluded, based on the credible testimony before it,

that the alternate juror's conduct did not have the potential to

substantially prejudice Gonzaga's right to a fair trial, because

the alternate juror played no part in deciding the case and

there was no evidence of misconduct by any other juror.

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Based on the foregoing, the circuit court did not

abuse its discretion by concluding that, on the record before

it, Gonzaga had failed to establish a prima facie showing that

the complained of conduct could have substantially prejudiced

his right to a fair trial because the alternate juror's

statements, while inappropriate, were essentially benign and the

alternate juror played no role in rendering a verdict.

Based on the foregoing, we affirm the circuit court's

April 11, 2024 Judgment of Conviction and Sentence.

DATED: Honolulu, Hawaiʻi, January 27, 2026.

On the briefs: /s/ Katherine G. Leonard
Presiding Judge
Brandon M. Segal,
for Defendant-Appellant. /s/ Keith K. Hiraoka
Associate Judge
Gerald K. Enriques,
Deputy Prosecuting Attorney, /s/ Sonja M.P. McCullen
County of Maui, Associate Judge
for Plaintiff-Appellee.

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