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NO. CAAP-19-0000507

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-19-0000127)

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

1 The Honorable Kevin A. Souza presided.

Electronically Filed

Intermediate Court of Appeals

CAAP-19-0000507

23-OCT-2023

08:31 AM

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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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