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                                                              Electronically Filed
                                                              Supreme Court
                                                              SCWC-11-0000661
                                                              18-JUN-2014
                                                              07:54 AM




                            SCWC-11-0000661

           IN THE SUPREME COURT OF THE STATE OF HAWAI#I


                          STATE OF HAWAI#I,
                   Respondent/Plaintiff-Appellee,

                                    vs.

                       STANLEY K. HUIHUI, JR.,
                  Petitioner/Defendant-Appellant.


          CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
               (CAAP-11-0000661; FC-CR. NO. 10-1-27K)

                        MEMORANDUM OPINION
   (By: Recktenwald, C.J., Nakayama, McKenna and Pollack, JJ.,
   and Circuit Judge Sakamoto, in place of Acoba, J., recused)

           Following a bench trial, Petitioner Stanley K. Huihui,

Jr. (Huihui) was convicted of Abuse of Family or Household

Members, Terroristic Threatening, and Unlawful Imprisonment.              His

convictions were affirmed by the Intermediate Court of Appeals

(ICA).   On application to this court, Huihui contends that the

Family Court of the Third Circuit (family court) abused its

discretion when it precluded evidence of the complaining

witness’s (CW’s) propensity for self-harm.         Because such evidence
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would have been relevant to establish that Huihui reasonably

believed that the CW was attempting to harm herself, it should

have been admitted.

                              I. BACKGROUND

          Huihui’s appeal arises from an incident where he

allegedly confined the CW in his vehicle, threatened her, and

committed various acts of physical abuse on her person.            Huihui

was charged by complaint with one count of Abuse of Family or

Household Members, HRS § 709-906, one count of Terroristic

Threatening in the Second Degree, HRS §§ 707-715(1) and 707-

717(1), and one count of Unlawful Imprisonment in the Second

Degree, HRS § 707-722(1).

          Prior to trial, Huihui filed a motion to introduce

character evidence of the CW’s “suicidal tendencies” pursuant to

Hawai#i Rules of Evidence (HRE) Rule 404(a)(2).          The family court

did not dispose of Huihui’s motion until August 10, 2011, when

the case proceeded to a bench trial.1        At the start of the

proceedings, Huihui made an oral motion to introduce an audio

recording:
          DEFENSE COUNSEL: I’ll do also an oral motion in limine
          regarding . . . an audio recording that was provided . . .
          to me by the State. That audio recording occurred . . . two
          or three days prior to this incident.

          THE COURT: When did you receive this recording?

          DEFENSE COUNSEL: I received the recording . . . last week.


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          The Honorable Joseph P. Florendo, Jr. presided.

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          I actually requested the recording because . . . the
          defense, would like to introduce it. I think that the State
          with my discussions with [the Prosecutor] stated that there
          would be an objection regarding relevance[,] so we could
          address . . . whether that recording will be allowed into
          evidence or not.

          THE COURT: Well, why don’t you wait until that time comes.

          DEFENSE COUNSEL: We can do it that way, too.

          The trial itself hinged on a credibility determination:

Whether to believe the CW’s or Huihui’s version of events.              The

CW testified as follows.      She and Huihui got into an argument

while driving in Huihui’s truck.         Huihui eventually pulled his

truck to the side of the road and punched the CW in the face.

When the CW tried to open her passenger-side door, Huihui grabbed

her arm and told her that if she got out, he was going to punch

her in the face again.     The CW then jumped into the back seat of

the truck, where her daughter was seated.         Huihui grabbed the CW

by the hair and yanked her back into the front seat.            The CW

again tried to open her door and Huihui punched her in the face.

          Huihui testified to a substantially different version

of events.   He claimed that while driving in his truck, the CW

accused him of having a sexual relationship with another woman.

The argument escalated until the CW tried to open the passenger-

side door.   Huihui testified that he believed she was going to

jump out of the moving truck.       Huihui grabbed the door handle and

told the CW that if she wanted to get out he would stop the



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truck.    Huihui then pulled to the side of the road and offered to

let the CW out.      The CW remained in the vehicle.

            Huihui resumed driving at approximately 55-miles-per-

hour.    Shortly thereafter, the CW opened the passenger-side door

and attempted to jump from the moving truck.            Huihui testified

that he grabbed the CW by the hair to keep her from falling out.

Huihui held the CW by the hair until he could bring his truck to

a stop.    As the truck slowed, the CW repeatedly slammed into the

side of the truck, sustaining several injuries.            Once the truck

had come to a stop, Huihui pulled the CW by the hair back into

the front seat, where she hit her head on the gear shift.

            At this point, Huihui’s attorney attempted to introduce

evidence that the CW had threatened to harm herself on prior

occasions:
            DEFENSE COUNSEL: Have you had any prior contact with [the
            CW] where she threatened to hurt herself?

            PROSECUTOR: Objection. . . . Relevance.

            THE COURT: Sustained.

            DEFENSE COUNSEL: Your Honor, . . . it is character evidence
            but I believe it is permissible under 404 – 404(a)(2), . . .
            evidence of [the] character of the victim is . . .
            admissible . . . to show that she was acting . . . to harm
            herself during this incident and that she had done so or
            threatened to do so on prior occasions.

            THE COURT: Character is not at issue in this case.

            DEFENSE COUNSEL: [The CW] did attempt to harm herself by
            jumping out of the car.

            THE COURT: It’s not a character question in my mind.

            DEFENSE COUNSEL:   Well, the character of . . . having

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          suicidal tendency[.]

          THE COURT: You need more foundation in order to establish
          that the acts in this case were suicidal.

          DEFENSE COUNSEL: Your   Honor, just evidence that the victim
          attempted to jump out   of the car while going 55, I think
          that’s circumstantial   evidence [that] a person has . . .
          suicidal traits or at   least traits that she wants to harm
          herself.

          THE COURT: I’ll sustain the objection.

          At the close of trial, Huihui was found guilty of all

three charges and sentenced accordingly.           Huihui timely appealed

to the ICA, which affirmed the family court’s judgment and

conviction.

                        II. STANDARD OF REVIEW

          Evidentiary rulings made on the basis of HRE Rule 404

are reviewed for abuse of discretion.         State v. Richie, 88

Hawai#i 19, 36, 960 P.2d 1227, 1244 (1998).
          Evidentiary decisions based on HRE Rule 403, which require a
          judgment call on the part of the trial court, are reviewed
          for an abuse of discretion. HRE 404 represents a
          particularized application of the principle of HRE 403 (see
          Commentary to HRE 404), and we will employ the same abuse of
          discretion standard of review.

Id. (internal quotation marks and citations omitted).

          Under the abuse of discretion standard
          the trial court may not be reversed by an appellate court
          unless the trial court clearly exceeded the bounds of reason
          or disregarded rules or principles of law or practice to the
          substantial detriment of a party litigant. Under that
          standard different trial judges may, on the same facts,
          arrive at opposite rulings without any of them being
          reversible on appeal.

Kealoha v. Cnty. of Hawai#i, 74 Haw. 308, 318, 844 P.2d 670, 675



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(1993) (citation and quotations omitted).

          Where evidence is improperly excluded, the judgment of

the trial court must be reversed unless it can affirmatively be

said that the exclusion was harmless beyond a reasonable doubt.

See State v. Perez, 64 Haw. 232, 234, 638 P.2d 335, 337 (1981);

State v. Russo, 67 Haw. 126, 138, 681 P.2d 553, 563 (1984).

                            III. DISCUSSION

          In this case, the family court abused its discretion

when it excluded evidence of the CW’s propensity for self-harm.

A.   Relevance

          HRE Rule 401 (2004) states that evidence is relevant if

it has “any tendency to make the existence of any fact that is of

consequence to the determination of the action more probable or

less probable than it would be without the evidence.”            See also

State v. Maddox, 116 Hawai#i 445, 457, 173 P.3d 592, 604 (App.

2007) (stating that character evidence “is properly excluded

where the evidence at trial does not support a factual dispute”

that is of consequence to the action).

          Character evidence that the CW had a propensity for

self-harm was relevant to Huihui’s defense.          A defendant may make

out a choice of evils defense if, among other things, the

defendant reasonably believed that his or her action was

necessary to avoid an imminent harm.        See HRS §§ 703-300,


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703-302(1) (1993).    Huihui’s testimony indicated that the CW

sustained her injuries in an apparent suicide attempt, and that

his act of pulling the CW by the hair was motivated by his belief

that the CW was attempting to harm herself.          Thus, a fact “of

consequence to the determination of the action” was whether a

reasonable person would believe that the CW was attempting to

harm herself.

            If the CW had a propensity for self-harm, then it is

more likely that she actually attempted to jump from a vehicle

moving at 55-miles-per-hour.      If that were true, then it would

support the conclusion that Huihui reasonably believed he needed

to grab the CW’s hair and/or confine her to his vehicle to

prevent an imminent harm.      Thus, evidence of the CW’s prior

attempts to harm herself would make the occurrence of a fact of

consequence more likely.      The family court erred when it

concluded that such evidence was irrelevant.

B.   Character Evidence

            Having established that evidence of the CW’s propensity

for self-harm was relevant, Huihui should have been allowed to

introduce that evidence pursuant to the rules governing character

evidence.    HRE Rule 404(a) (2004) states: “Evidence of a person’s

character or a trait of a person’s character is not admissible

for the purpose of proving action in conformity therewith on a


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particular occasion[.]”       However, HRE Rule 404(a)(2) allows the

accused to introduce “[e]vidence of a pertinent trait of

character of the victim of the crime[.]”          See also State v.

Basque, 66 Haw. 510, 512, 666 P.2d 599, 601 (1983) (“‘[A]

defendant who claims self-defense to a charge of homicide is

permitted to introduce evidence of the [victim’s] violent or

aggressive character either to demonstrate the reasonableness of

his apprehension of immediate danger or to show that the [victim]

was the aggressor.’”) (quoting State v. Lui, 61 Haw. 328, 330,

603 P.2d 151, 154 (1979)).       Here, the CW’s propensity for self-

harm was a pertinent character trait, and evidence tending to

establish that trait should have been admitted pursuant to HRE

Rule 404(a)(2).2     Because there is a reasonable possibility that

the family court’s error might have contributed to Huihui’s

conviction, we cannot say that it was harmless beyond a

reasonable doubt.

C.    Foundation

            The family court also precluded evidence of the CW’s

propensity for self-harm because it concluded that Huihui had not

laid adequate foundation to establish that the acts in this case

were suicidal.     Huihui testified that the CW attempted to jump


      2
            Accordingly, we need not address whether evidence of the CW’s
prior attempts to harm herself should have been admitted pursuant to HRE Rule
404(b).

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from a vehicle that was traveling at approximately 55-miles-per-

hour.   No further foundation was required to establish that the

CW’s alleged action was an attempt at self-harm.

                              IV. CONCLUSION

            For the reasons set forth above, we vacate the ICA’s

November 1, 2013 judgment on appeal and the family court’s

August 10, 2011 judgment of conviction and sentence.             This case

is hereby remanded to the family court for further proceedings

before a different judge.3

            DATED:   Honolulu, Hawai#i, June 18, 2014.

Craig W. Jerome                           /s/ Mark E. Recktenwald
(Summer M.M. Kupau with him
on the briefs) for petitioner             /s/ Paula A. Nakayama

Jason R. Kwiat                            /s/ Sabrina S. McKenna
(Kimberly B. Taniyama and
Linda L. Walton with him on               /s/ Richard W. Pollack
the briefs) for respondent
                                          /s/ Karl K. Sakamoto




      3
            This case must be resolved before a different judge on remand
because the family court made problematic statements during sentencing
allocution.

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