Emotional Impact of the Investigation is not Relevant to the Offense Itself

State v. Lora (HSC June 16, 2020)

Background. Kevin Lora was charged with one count of sexual assault in the first degree and one count of sexual assault in the third degree. At trial the complainant testified that she was vacationing in Hawai'i with her sister and her friend, Haley Harlow. They stayed in Waikiki. On a Saturday night they went to dinner at Top of Waikiki. On the way, they met a man named “Rob.” The complainant’s back and legs were sore from the day before when they hiked Koko Head. The complainant testified she drank a glass of wine and a rum drink. They tried to get into a nightclub, but were turned away because they were not wearing the proper clothes. Rob went into the nightclub, and the three women decided to go to a different club called “Playbar.” Something awkward happened on the way and the complainant went back to her hotel room alone. She changed into a skirt and received texts from her girlfriends to go to Playbar. She also got a text from Rob. She and Rob agreed to go to Playbar together. They got there between 9:30 p.m. to 10 p.m. At around 11, her sister went back to the hotel. Harlow went back at around 1:30 or 2:00 a.m. The complainant stayed at Playbar until 2:30 a.m. and went back to the hotel. She had six servings of alcohol and felt “a little dizzy.” She testified she was not feeling drunk.

Harlow testified that when she left the club she met a man named Dominick. She identified Lora as the man she met that night. She testified Lora walked her back to the hotel and they exchanged numbers. They met up again and walked out to the water. There, they talked and started to kiss. Lore wanted to go further, but she said no. Lora said he respected that, and they kept talking. A police officer came and told them to get off the beach because it was too late. They went back to the hotel and split up. They kept texting. Harlow fell asleep.

The complainant testified that as she was getting back to her hotel, a man named Dominik approached her. She identified Lora as the man. They talked for a while and Lora asked if she wanted to walk on the beach. She told him she was not interested and that she was married. The complainant testified that Lora put his arm around her back and pushed his right thumb into her arm very hard. He said they were going out onto the beach. They started walking and Lora kept a tight grip on her. She was scared. She testified that on the way to the beach he started to grip onto the side of her neck. A struggle ensued.

They got to the beach and she stepped off the seawall to create distance between them. Lora took off his pants and shoes and followed her. She was standing with her back to the wall facing Lora. She then testified that she was assaulted while he pushed her up against the wall. She testified that he ripped her shirt and in the struggle, Lora’s saliva got on her chest. She screamed, but Lora headbutt her. When it was over, Lora gathered his clothes and ran way. The complainant testified she screamed for help and went to a police substation.

She walked up from the beach and approached Larry Macri, who was waiting for a bus. She was crying and distraught. Her pants were on and her clothing did not look ripped. He testified that he would have heard her screaming from the beach, but he did not hear any yelling.

At trial, the prosecutor inquired about taking a forensic sexual assault examination. The prosecutor asked the complainant “what was it like to get examined by [a] male doctor.” The complainant started to explain it was “very dehumanizing. . . . [Y]ou’re standing there in your ripped clothes—” Counsel objected on the grounds that it was irrelevant. The circuit court with the Hon. Judge Rom Trader presiding overruled the objection.

The jury heard the complainant testify that she went to the hospital and what it was like “after experiencing the trauma that I had just gone through.” She also testified, over objection, that she regretted wearing a skirt that night, shaking Lora’s hand, and “not being able to feel fear and act on it in a way that would protect me.” Lora was found guilty.

At sentencing, Lora asked to be sentenced as a young adult defender pursuant to HRS § 706-667. The circuit court denied the request. Lora was sentenced to twenty years in count one and five in count two concurrently. He appealed and the ICA affirmed.

The Complainant’s Feelings about the Sexual Assault Examination and her “Regrets” were Irrelevant. Evidence is relevant when 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.” HRE Rule 401. The HSC examined whether the complainant’s answer to the question about what it was like to be examined by a male doctor was relevant. The answer was about the examination itself—not what happened earlier. The HSC held that the “emotional effect of the physical examination was . . . irrelevant because it could not have affected the veracity of statements that were made prior to the physical examination.” The detailed testimony about the physical examination were improperly admitted. The HSC also held that testimony about the complainant’s regrets had no place in the trial and were irrelevant.

Sexual Assaults Come Within the Ambit of the Youthful Offender Statute. The sentencing court may impose a reduced sentence on young adult defendants. HRS § 706-667. A “young adult defendant” is someone less than twenty-two years old at the time of the offense. HRS § 706-667(1). The defendant must also have no prior felony convictions or as a juvenile. Id. the sentencing court may impose the reduced sentence on young adult defendants when it “is of the opinion that such special term is adequate for the young adult defendant’s correction and rehabilitation and will not jeopardize the protection of the public.” HRS § 706-667(3). The only offense excluded from this statute is murder and attempted murder. HRS § 706-667(4). The HSC also pointed out that “under the rule of lenity, [a penal] statute must be strictly construed against the government and in favor of the accused.” State v. Woodfall, 120 Hawai'i 387, 396, 206 P.3d 841, 850 (2009).

The sentencing court explained why it did not impose the reduced sentence. The court “divides the world into basically two camps: . . . [t]hose people that are violent, and those people that aren’t.” The sentencing court then denied Lora’s request for the young adult defendant sentence. The HSC took exception to this. HRS § 706-667 clearly contemplates a variety of terrible offenses—so long as it is not murder or attempted murder.

Chief Justice Recktenwald’s Dissent. The CJ disagreed about the relevance issue. The CJ wrote that the defense’s theory was that the complainant was lying. The emotional impact of the examination and investigation afterwards for the CJ had a tendency to make a fact of consequence more probable. HRE Rule 401. The CJ also believed that the sentencing court made an individualized determination and did not abuse its discretion in refusing to apply the young adult defendant statute. Justice Nakayama joined.


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