State v. Utai

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
23-OCT-2023
08:31 AM
Dkt. 48 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

STATE OF HAWAI#I, Plaintiff-Appellee,
v.
SINAESEULA B. TUAOLO UTAI, Defendant-Appellant

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

SUMMARY DISPOSITION ORDER
(By: Ginoza, Chief Judge, Leonard and Hiraoka, JJ.)

Defendant-Appellant Sinaeseula B. Tuaolo Utai appeals
from the Judgment of Conviction and Sentence entered by the
Family Court of the First Circuit on June 14, 2019.1 For the
reasons explained below, we vacate the judgment and remand for
further proceedings.
Utai was charged by complaint with Abuse of Family or
Household Members in violation of Hawaii Revised Statutes § 709-
906(1) and (5). The charge arose from an incident that took
place on January 31, 2019, in the home where Utai lived with the
complaining witness (CW). Utai pleaded not guilty. The family
court granted Utai's motion in limine to prohibit evidence of
statements made by Utai that were not disclosed by the State as

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The Honorable Kevin A. Souza presided.
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

required by Hawai#i Rules of Penal Procedure (HRPP) Rule 16
(Discovery).
Jury trial began on May 14, 2019. The State called two
witnesses, CW and his medical service coordinator, Nicole
Woodson. CW testified that one morning in January 2019, Utai was
in his room and found a marijuana pipe in his backpack. She
walked to the kitchen. CW was in his room, sitting on the floor
with his legs crossed. That's what he was taught to do when he
got in trouble. He was "scared" because he knew Utai was "going
do something to me." Utai returned to CW's room with a heavy
metal spoon, 14 to 16 inches long. "She whacked me with it."
Utai "whacked" the CW's hands, back, arms, ribs, and head with a
metal spoon or a piece of wood. She then told CW to shower, and
went to Walgreens. Woodson came to the house after Utai left,
and CW showed Woodson "all the bruise [Utai] gave me." Woodson
"called the cop." The police took pictures of CW's injuries.
The photographs were admitted into evidence.
Woodson testified that she coordinated CW's dialysis
treatments. She did an assessment at CW's home on January 31,
2019. CW showed Woodson bruises on his palms, left arm, and
back. She felt two golf-ball sized lumps on his head. She
called her supervisor and Adult Protective Services. Her
supervisor told her to call the police. The police arrived
within a half-hour of her call.
The State rested. The family court took a brief recess
to allow the State to release its witnesses or have them stay for
rebuttal. The deputy prosecuting attorney (DPA) was then
apparently told by Woodson that Utai said she had disciplined CW
for having a crack pipe. The DPA didn't disclose the new
information to defense counsel.
When trial resumed, Utai took the stand. She testified
that she was 53 years old, and CW was 43 years old. CW has
Klinefelter's syndrome, and she took care of him. On January 31,
she told CW to clean out his backpack. He refused. She grabbed
the backpack and saw a "homemade pipe." She asked CW if it

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belonged to him. He said "no." Then he started yelling, "that
mine's [sic], give it back to me." He was aggressive and she
never saw him like that. He pushed her. She was scared. She
wanted to throw the pipe away. She walked out of CW's room,
toward the kitchen. CW followed Utai into the kitchen where he
pushed her again. He tried to open her hand, which held the
pipe. She was very scared. She grabbed a "silver ladle spoon"
from the sink. She swung the spoon "just so he can get scared
and leave me alone." He was still trying to get the pipe but
stopped when she told him, "if momma was -- was here she would be
so -- so sad to see this." He turned around, mumbled something,
and walked to his room.
On cross-examination, the DPA asked Utai:

Q. So you did talk to Nicole [Woodson] that day?

A. Yes.

Q. Okay. Do you remember telling her that you hit
[CW] because you were angry?

A. No.
Q. That you were disciplining him?

A. No.

Q. You never said that to her?
A. No.

Utai didn't object to these questions. She rested
after she completed her testimony.
The State then recalled Woodson as a rebuttal witness.
The DPA asked:

Q. After you phoned the police, did you have any
interaction with the defendant?

A. Yeah, later that day on my way to the car.
Q. And during that interaction, did the defendant tell
you why she did what she did?

A. She said that she was disciplining [CW] for making
-- for having a crack pipe.

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Utai didn't object to these questions.
After jury instructions had been settled, Utai orally
moved for a mistrial

based on a violation of [HRPP] Rule 16, something that was
brought up in and granted in motions in limine, specifically
with regard to a statement that was brought out in -- by
[Woodson] that was not previously disclosed to defense prior
to trial which, in defense's view, is incredibly
prejudicial, and deprived defense of the ability to speak
to, well, my client prior to and address this possible
concern.

The family court denied the motion for mistrial, but
gave the defense an opportunity to reopen its case to allow Utai
to testify "and provide for the context of" her conversation with
Woodson. Utai then testified:

Q. Did you at any point speak with Miss Woodson? Or
when you were coming home, what did you observe?

A. She was on the phone walking towards, you know,
like 'cause we were on the same side of the road, she was
walking towards me and was walking home. And then all she
just -- I don't know if she hang up the phone or somebody
was still there. So -- and then I -- then she said, Sina, I
-- I already called the cops and I called Adult Protective
Services, too. That's when I seen the car that my brother
was in and he was hiding in the back. And then I said why
is [CW] in that car? He never say.

And then -- and then it finally dawned on me what
Nicole was saying to me. But at that time I was trying to
talk to her, she kept avoiding eye contact. I wanted to see
what was going on, I said Nicole, can you tell -- wait, what
did you just say? And Nicole said I called the cops because
I seen bruises on [CW]. And she said that I have to go.
That was it.
Q. Okay. What was her demeanor like?

A. She was rushed, it's like she didn't want to talk
to me.
Q. Okay. Did you at any point tell her that you were
disciplining [CW]?

A. I never did.

Q. Okay.
A. I never did.

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The jury found Utai guilty as charged. The Judgment of
Conviction and Sentence was entered. This appeal followed. Utai
contends that the DPA committed misconduct by violating HRPP
Rule 16 and the order granting her motion in limine, and the
family court erred by denying her motion for a mistrial.
"Prosecutorial misconduct" is a legal term of art
referring to any improper action by a prosecutor. State v.
Williams, 146 Hawai#i 62, 72, 456 P.3d 135, 145 (2020). Utai
didn't object to the State's questions about her statements to
Woodson. But allegations of prosecutorial misconduct implicate a
defendant's constitutional right to a fair trial. State v.
Hirata, 152 Hawai#i 27, 30, 520 P.3d 225, 228 (2022).

[O]nce the defense establishes misconduct — objection or no
objection — appellate review is the same: After considering
the nature of the prosecuting attorney's conduct, promptness
or lack of a curative instruction, and strength or weakness
of the evidence against the defendant, a reviewing court
will vacate a conviction if there is a reasonable
possibility that the conduct might have affected the trial's
outcome.

Id. at 31, 520 P.3d at 229 (cleaned up).
The State concedes that the DPA violated HRPP Rule 16
and the family court order granting Utai's motion in limine by
failing to disclose Utai's alleged statement to Woodson before
Utai presented her case. The DPA's questioning of Utai and
Woodson about Utai's alleged statement, without first disclosing
it to Utai, was misconduct. See State v. Williams, 149 Hawai#i
381, 393-94, 491 P.3d 592, 604-05 (2021) (holding that the
prosecutor's introduction of evidence of previously undisclosed
statements by the defendant barred by the defense's motion in
limine and in violation of HRPP Rule 16 constituted prosecutorial
misconduct). In cases such as this, where the defendant's
credibility is particularly important, "the potential for
prejudice is particularly evident where the improper comments
specifically concerned the credibility of the testimony on which
the case turned." Id. at 393, 491 P.3d at 604 (cleaned up); see
also, Hirata, 152 Hawai#i at 35, 520 P.3d at 233 ("In cases

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reliant on the jury's credibility findings, misconduct attacking
a defendant's credibility or bolstering a complainant's (or
critical witness's) credibility is seldom harmless beyond a
reasonable doubt."); State v. Underwood, 142 Hawai#i 317, 329,
418 P.3d 658, 670 (2018) (explaining that evidence of an offense
isn't overwhelming "[w]hen a conviction is largely dependent on a
jury's determination as to the credibility of a complainant's
testimony"). The prosecutorial misconduct in this case was
significant in relation to Utai's credibility.
As to the second factor, no curative instruction was
given because Utai didn't object to the questions about her
alleged statement to Woodson. Rather than striking Woodson's
testimony and instructing the jury to disregard it, the family
court took what it characterized as a "curative measure" after
Utai orally moved for a mistrial — it allowed Utai to reopen her
case and testify about the context of her conversation with
Woodson. This only highlighted the conflicts between CW's and
Utai's versions of what happened.
The third factor is the strength or weakness of the
evidence against Utai. CW and Utai were the only two witnesses
to the incident. They gave directly conflicting accounts of the
events that caused CW's undisputed injuries. In such cases it
cannot be said that the evidence against the defendant is
overwhelming. See Hirata, 152 Hawai#i at 35, 520 P.3d at 233;
Williams, 149 Hawai#i at 397, 491 P.3d at 608; Underwood, 142
Hawai#i at 329, 418 P.3d at 670.
Here, where the prosecutorial misconduct affected
Utai's credibility — a crucial issue in the case — no curative
instruction was given. The family court's curative measure was
not effective to mitigate the misconduct, and the evidence
against Utai was not overwhelming. We are obligated to vacate
the Judgment of Conviction and Sentence. We need not address
Utai's argument that the family court erred by denying her motion
for a mistrial.

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For the reasons explained above, we vacate the
"Judgment of Conviction and Sentence" entered by the family court
on June 14, 2019, and remand for a new trial.
DATED: Honolulu, Hawai#i, October 23, 2023.

On the briefs:
/s/ Lisa M. Ginoza
Phyllis J. Hironaka, Chief Judge
Deputy Public Defender,
State of Hawai#i, /s/ Katherine G. Leonard
for Defendant-Appellant. Associate Judge

Stephen K. Tsushima, /s/ Keith K. Hiraoka
Deputy Prosecuting Attorney, Associate Judge
City and County of Honolulu,
for Plaintiff-Appellee.

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