Stopping SOTP

State v. Holt (ICA November 21, 2007)

Background. Duke Holt was charged with Harassment by Stalking in violation of HRS § 711-1106.5(1). The complaining witness, a 12-yr-old girl, testified at trial. She testified that one morning she was walking to school when she saw that a man, later identified as Holt, was talking to her from his car. He flirted with her. He asked if she had a boyfriend, said that he was a nice guy, and that he wanted to get to know her better. At one point, according to the CW, Holt reached out of the car and grabbed her. They arranged a meeting the next day. The CW went to her school and the police were contacted. The police went to the arranged meeting place nd saw Holt in his car. He was arrested. At trial, Holt's counsel attempted to cross-examine the CW with a written statement she gave to the police in order to show inconsistencies with her testimony on direct. The circuit court did not allow it into evidence. Holt testified in his defense and said that he saw a girl, talked to her, but did not realize that she was so young. Holt was found guilty and the sentencing court ordered that Holt undergo a sex offender treatment program (SOTP). Holt appealed.

Prior Inconsistent Statements Admissible, but Harmless Error. The ICA held that the circuit court erred in refusing Holt to allow into evidence those portions of the CW's written statement that were inconsistent with her testimony on direct. Hawaii Rules of Evidence (HRE) Rule 613 allows extrinsic evidence of a prior inconsistent statement into evidence only when (1) the circumstances of the statement are brought to witness' attention and (2) the witness has been asked whether he or she made the statement. Holt laid proper foundation for its admission under HRE Rule 613(b).

The ICA also held that it was admissible as a hearsay exception under HRE Rule 802.1. The difference is that if admissible under HRE Rule 802.1, the statement may be used as substantive evidence as well as impeachment evidence. To be admissible under the hearsay exception, (1) the witness must testify about the subject mater in the prior statement; (2) the prior statements must be inconsistent with the testimony; (3) the prior inconsistent statement must be reduced to writing; and (4) the prior inconsistent statement must be offered under HRE Rule 613(b). The ICA held that Holt met these requirements. The CW adequately testified about the incident (the subject of her written statement), there were parts in her written statement that were inconsistent w/ her testimony, it was reduced to writing, and Holt met the foundation requirements under HRE Rule 613(b). Thus, it should have been admitted as substantive evidence. Given the weight of the evidence presented against Holt at trial, however, the ICA could not conclude that the error arose to a "reasonable possibility that error might have contributed to conviction." Accordingly, the error in keeping the statement out of evidence was harmless beyond reasonable doubt.

No Plain Error in Instructing the Jury. Holt approved of the jury instructions, but on appeal alleges individual errors in the jury instructions, thus the ICA reviewed the instructions for plain error. The ICA held that the circuit court did not plainly err in failing to include an ignorance-or-mistake-of-fact instruction. The circuit court failed to include the instruction, but stopped the jury deliberation, asked the jurors to hand down a set of instructions, and re-read new instructions, including the ignorance-or-mistake-of-fact instruction. The time lapse did not show plain error. The ICA next concluded that there was no plain error when the circuit court ordered jurors to remove an extraneous jury instruction regarding the defendant's right to refuse to testify. Finally, there was no reversible error in ordering the jury to "deliberate anew" after receiving the 2d set of jury instructions. In comparison to State v. Stanley, 120 Wash. App. 321, 85 P.3d 395 (Wash. App. 2004), a Washington appellate case that found error where the trial court ordered the jury to deliberate anew after a new juror entered the jury, because there was no new juror here and the trial court's duty to "see to it that the case goes to the jury in a clear and intellgient manner," State v. Kupihea, 98 Hawai'i 196, 204, 46 P.3d 498, 506 (2002), was not compromised.

Sentencing for 120 Days Imprisonment OK. The ICA went on to sentencing and upheld the lower court's 120-day prison sentence. There was no abuse of discretion because the statutory max. for a misdemeanor was six months jail. This was w/in the court's discretion because it was not in excess of the max. and the court's rationale reflected the factors laid out in HRS § 706-663.

SOTP, However, is NOT. The ICA held that an abuse of discretion arose in imposing SOTP on Holt because there were no facts showing that he was in need of such treatment. First, harassment by stalking is not one of the sexual offenses defined in HRS Ch. 707, Pt. V or HRS Chapter 846E. As for specific facts around Holt's offense, while the CW may have been 12 years old at the time, there was no evidence before the sentencing court that Holt had "a history of or propensity toward improper sexual behavior." Finally, the sentencing court ordered SOTP without first ordering that Holt be assessed for SOTP.

But Wait! The ICA had one more thing to say: "Although not raised by the parties at trial or on appeal, we also bring to the circuit court's attention HRS § 711-1106.5(2), which provides that '[a] person convicted under this section may be required to undergo a counseling program as ordered by the court.'"

Can I Get a Nexus? The ICA found no reversible error at the trial phase. However, practioners can use this case for the steps needed to use a prior inconsistent statement as substantive evidence. The more interesting analysis came at sentencing. The ICA found the order to undergo an SOTP w/o evidence showing the defendant had a history of or propensity toward improper sexual behavior an abuse of discretion. Just because the CW was a little girl, and just because it was highly suggestive that Holt could have had vile thoughts at the time of the offense, that was not enough to order an SOTP. It might have been enough to order an initial assessment as to whether an SOTP would be appropriate, and, on a related point, it was certainly enough for the sentencing court to order other kinds of counseling. As this case demonstrates, when a defendant is not convicted of a sex offense, SOTP cannot automatically be imposed. There muse be some kind of nexus. Given the facts in this case, it appears that that nexus must be pretty strong.

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