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NO. CAAP-19-0000881

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

STATE OF HAWAI#I, Plaintiff-Appellee,

v.

TELEA TUASIVI, JR., Defendant-Appellant

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT

(CR. NO. 1CPC-18-0001796)

SUMMARY DISPOSITION ORDER

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

Defendant-Appellant Telea Tuasivi, Jr. (Tuasivi),

appeals from the Judgment of Conviction and Sentence entered on

November 29, 2019, by the Circuit Court of the First Circuit

(Circuit Court).

1 On September 11, 2019, a jury convicted

Tuasivi of Continuous Sexual Assault of a Minor Under the Age of

Fourteen Years in violation of Hawaii Revised Statutes (HRS)

§ 707-733.6 (2014).2 Tuasivi was sentenced to an indeterminate

1 The Honorable Paul B.K. Wong presided.

2 HRS § 707-733.6 provides in relevant part:

§707-733.6 Continuous sexual assault of a minor under

the age of fourteen years. (1) A person commits the offense

of continuous sexual assault of a minor under the age of

fourteen years if the person:

(a) Either resides in the same home with a minor

under the age of fourteen years or has recurring

access to the minor; and

(b) Engages in three or more acts of sexual

penetration or sexual contact with the minor

over a period of time, while the minor is under

the age of fourteen years.

Electronically Filed

Intermediate Court of Appeals

CAAP-19-0000881

30-APR-2021

08:03 AM

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term of imprisonment of twenty years, with credit for time

served. 

Tuasivi's contention on appeal is that the Circuit 

Court erred in admitting the testimony of Alexander Jay Bivens,

Ph.D. (Dr. Bivens), in toto. Tuasivi further asserts that,

assuming, arguendo, Dr. Bivens' testimony was admissible, the

Circuit Court erred in admitting testimony that was irrelevant,

misleading, and prejudicial. 

We conclude the Circuit Court did not err and therefore

we affirm.

"Generally, the decision whether to admit expert 

testimony rests in the discretion of the trial court. To the

extent that the trial court's decision is dependent upon

interpretation of court rule[s], such interpretation is a

question of law, which [the appellate] court reviews de novo."

State v. Engelby, 147 Hawai#i 222, 231, 465 P.3d 669, 678 (2020)

(quoting State v. McDonnell, 141 Hawai#i 280, 289, 409 P.3d 684,

693 (2017)). 

Appellate courts apply the right/wrong standard in

reviewing challenges to a court's relevancy decisions. State v.

Lora, 147 Hawai#i 298, 307, 465 P.3d 745, 754 (2020); State v.

Kony, 138 Hawai#i 1, 8, 375 P.3d 1239, 1246 (2016). "Evidentiary

decisions based on HRE Rule 403,[3] which require a 'judgment

call' on the part of the trial court, are reviewed for an abuse

of discretion." Kony, 138 Hawai#i at 8, 375 P.3d at 1246

(quoting State v. Richie, 88 Hawai#i 19, 37, 960 P.2d 1227, 1245

(1998) (footnote omitted)). 

(1) Tuasivi argues that the Circuit Court erred in

allowing Dr. Bivens' testimony in toto. However, the propriety

of Dr. Bivens' testimony regarding, inter alia, delayed and

3 HRE Rule 403 (2016) provides:

Rule 403 Exclusion of relevant evidence on grounds of

prejudice, confusion, or waste of time. Although relevant,

evidence may be excluded if its probative value is

substantially outweighed by the danger of unfair prejudice,

confusion of the issues, or misleading the jury, or by

considerations of undue delay, waste of time, or needless

presentation of cumulative evidence.

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incomplete reporting by children of sexual abuse, tunnel memory,

and behaviors of child sexual assault victims, has been

challenged but held by the Hawai#i Supreme Court to be relevant

and admissible under similar circumstances. See Engelby, 147

Hawai#i at 234, 465 P.3d at 681 (holding testimony about delayed

reporting, tunnel memory, and children's reactions to sexual

assault events was helpful and relevant to the jury); McDonnell,

141 Hawai#i at 292, 409 P.3d at 696 (holding testimony about

delayed reporting, tunnel memory, and incomplete disclosure was

relevant under State v. Batangan, 71 Haw. 552, 799 P.2d 48

(1990)); Kony, 138 Hawai#i at 8-9, 375 P.3d at 1246-47 (holding

testimony about delayed reporting by children of sexual abuse was

relevant and admissible).

Therefore, Tuasivi's argument that Dr. Bivens'

testimony as a whole should have been precluded is without

merit.4

(2) Tuasivi further asserts that assuming, arguendo,

Dr. Bivens' testimony was admissible, the Circuit Court

nonetheless erred in admitting testimony that was irrelevant,

misleading, and prejudicial. We disagree.

[T]he touchstones of admissibility for expert

testimony under HRE Rule 702[5] are relevance and

reliability. The relevance requirement primarily

4 We note Tuasivi also argues for the first time on appeal that the

Circuit Court erred in admitting Dr. Bivens' testimony because it was

unreliable under HRE Rule 702. However, Tuasivi did not argue unreliability

in his motion in limine, and he does not point to anywhere else in the record

where he allegedly raised this issue. See Rule 28(b)(4) of the Hawai #i Rules

of Appellate Procedure (Points of error must state where in the record the

alleged error was objected to or brought to the attention of the court). This

issue is waived.

5 HRE Rule 702 (2016) provides:

Rule 702 Testimony by experts. If scientific,

technical, or other specialized knowledge will assist the

trier of fact to understand the evidence or to determine a

fact in issue, a witness qualified as an expert by

knowledge, skill, experience, training, or education may

testify thereto in the form of an opinion or otherwise. In

determining the issue of assistance to the trier of fact,

the court may consider the trustworthiness and validity of

the scientific technique or mode of analysis employed by the

proffered expert.

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stems from the precondition in FRE Rule 702[6] that the

evidence or testimony assist the trier of fact to

understand the evidence or to determine a fact in

issue. The trial judge must determine, then, whether

the proffered expert evidence will indeed accomplish

that purpose. The reliability requirement refers to

evidentiary reliability — that is trustworthiness. 

Under this prong, admission of expert evidence is

premised on an assumption that the expert's opinion

will have a reliable basis in the knowledge and

experience of his or her discipline. In this context,

the trial court is assigned the task of ensuring that

an expert's testimony both rests on a reliable

foundation and is relevant to the task at hand.

Vliet, 95 Hawai#i at 106, 19 P.3d at 54 (format altered)

(brackets, citations, and internal quotation marks omitted). The

Hawai#i Supreme Court in Batangan recognized that cases dealing

with sexual abuse of children "are difficult to prosecute because

of the young age of many of the victims and the absence of

eyewitnesses." 71 Haw. at 555, 799 P.2d at 51 (citations

omitted). Moreover, 

[c]hild victims of sexual abuse have exhibited some

patterns of behavior which are seemingly inconsistent

with behavioral norms of other victims of assault. 

Two such types of behavior are delayed reporting of

the offenses and recantation of allegations of abuse. 

Normally, such behavior would be attributed to

inaccuracy or prevarication. In these situations it

is helpful for the jury to know that many child

victims of sexual abuse behave in the same manner.

Expert testimony exposing jurors to the unique

interpersonal dynamics involved in prosecutions for

intrafamily child sexual abuse may play a particularly

useful role by disabusing the jury of some widely held

misconceptions ... so that it may evaluate the

evidence free of the constraints of popular myths[.]

Id. at 557-58, 799 P.2d at 51-52 (format altered) (citations and

internal quotation marks omitted). The pertinent consideration

is whether the expert testimony will assist the jury without

unduly prejudicing the defendant. Id. at 558, 799 P.2d at 52. 

The Hawai#i Supreme Court cautioned against wholesale admission

of expert testimony in child sexual abuse cases based on their

"aura of special reliability and trustworthiness," especially

with regard to witness credibility, in which case expert

testimony is inappropriate. Id. at 556-57, 799 P.2d at 51

(citations omitted).

6 HRE Rule 702 is modeled on Federal Rules of Evidence (FRE) Rule 702. 

State v. Vliet, 95 Hawai#i 94, 105, 19 P.3d 42, 53 (2001).

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(2a) Tuasivi asserts that delayed disclosure "is no

longer a mysterious phenomenon necessitating explanation." 

However, as the prevailing case authority establishes, Dr.

Bivens' testimony was relevant to explain why the complaining

witness, AT, did not want to tell any adult that since August

2016 when AT was thirteen years old and starting the eighth

grade, Tuasivi was touching her. AT testified she "was always

afraid of people not believing [her]," and "our family was really

close, and something like this would have had a great outburst,

which it has." Around the middle of the school year, AT told her

friend, KD, about the touching, but told KD she did not want

anyone to know, including her parents. Towards the end of the

school year, KD told a teacher or a counselor at the school. A

school counselor then spoke with AT after KD reported what was

happening to AT. AT testified she did not disclose to the

counselor all the things that Tuasivi did to her because she was

not comfortable telling someone she hardly knew. The counselor

then contacted AT's mother, which lead to AT telling her mother. 

Tuasivi argues that AT's age, articulate nature, and

explanations rendered Dr. Bivens' testimony unhelpful to the

jury. We disagree. In Kony, the Minor was fifteen years old at

the time of the alleged sexual assaults and did not disclose the

abuse to her mother until a few days after the last incident of

abuse, when Minor and mother had an argument. 138 Hawai#i at 3,

4, 375 P.3d at 1241, 1242. Since "delayed reporting of the

offenses" is the type of behavior that could be misconstrued by a

jury, McDonnell, 141 Hawai#i at 292, 409 P.3d at 696, we conclude

the Circuit Court did not err in admitting as relevant Dr.

Bivens' testimony on delayed disclosure.7

Tuasivi asserts that the Circuit Court also erred in

permitting Dr. Bivens' testimony about studies on children who

had been diagnosed with sexually transmitted diseases but denied

7 Tuasivi has waived any argument that Dr. Bivens' testimony that

children who tell are more likely to be adolescents was a comment on the

ultimate issue of AT's credibility, because Tuasivi failed to object at trial. 

"Failure to object to admission of evidence at trial will waive the point on

appeal." State v. Baxley, 102 Hawai#i 130, 148, 73 P.3d 668, 686 (2003)

(citations omitted).

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having had sexual contact, and studies of children who were

videotaped being sexually abused but did not disclose the abuse

(the studies), because these studies were irrelevant and their

probative value was substantially outweighed by the danger of

unfair prejudice pursuant to HRE Rule 403. We disagree that the

studies were irrelevant because they were part of Dr. Bivens'

testimony about children not disclosing sexual abuse, even in

circumstances where it was clear they had been abused. Lack of

disclosure or delayed disclosure was relevant and admissible in

this case. Moreover, Tuasivi did not object to testimony about

the studies as being prejudicial under HRE Rule 403, and thus

that argument is waived. 

(2b) Tuasivi asserts that Dr. Bivens' testimony about

tunnel memory was not relevant and improperly bolstered AT's

credibility. To the contrary, this testimony was relevant where

AT testified about certain incidents of sexual abuse by Tuasivi

that stood out to her, but she could not remember all of the

details. Since testimony regarding tunnel memory would assist

the jury in evaluating why "certain things get to be blurred[,]"

McDonnell, 141 Hawai#i at 292, 409 P.3d at 696, the Circuit Court

did not err in admitting as relevant Dr. Bivens' testimony on

tunnel memory. 

As for improper bolstering, the Hawai#i Supreme Court

recognized that an expert generally may not testify as to the

credibility of a witness, and that "conclusory [expert] opinions

that abuse did occur and that the child victim's report of abuse

is truthful and believable is of no assistance to the jury, and

therefore, should not be admitted." Batangan, 71 Haw. at 558,

799 P.2d at 52. Here, Dr. Bivens did not testify as to the

credibility of AT, nor did he opine that abuse occurred at all in

this case. Dr. Bivens' testimony was relevant and helpful to the

jury and neither usurped the function of the jury nor resulted in

undue prejudice. Engelby, 147 Hawai#i at 235, 465 P.3d at 682. 

Any risk of prejudice in admitting Dr. Bivens' testimony was

reduced when the jury was instructed that because a witness

expressed an opinion does not obligate it to accept the opinion. 

Moreover, the State did not comment on Dr. Bivens' testimony in

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its closing argument or rebuttal. The Circuit Court did not err

in admitting Dr. Bivens' testimony on tunnel memory.

(2c) Tuasivi contends Dr. Bivens' testimony on

intrafamily dynamics and incest was irrelevant and prejudicial. 

However, we conclude the Circuit Court did not abuse its

discretion in ruling that since Tuasivi faced a charge of

continuous sexual assault of a minor under the age of fourteen,

the risk of prejudice from Dr. Bivens' testimony on these

subjects did not outweigh the probative value. There was

testimony indicating that AT's relationship with Tuasivi, who was

like a second father to AT and whose family was close with AT and

her mother, influenced AT's desire not to disclose to an adult

because she did not want to ruin Tuasivi's relationship with his

children or affect her family circumstances. The Circuit Court

did not err in admitting Dr. Bivens' testimony in this area.

Lastly, Tuasivi argues that the Circuit Court's errors

prejudiced Tuasivi's defense in depriving him of his rights to

due process, an impartial jury, confrontation, and fair trial in

violation of the U.S. Const. amends. V and XIV, and Haw. Const.

art. I, §§ 5 and 14. Tuasivi did not assert constitutional

claims in the circuit court and has, thus, failed to preserve

them for appellate review. "As a general rule, if a party does

not raise an argument [at the circuit court level], that argument

will be deemed to have been waived on appeal; this rule applies

in both criminal and civil cases." Hawaii Ventures, LLC v.

Otaka, Inc., 114 Hawai#i 438, 500, 164 P.3d 696, 758 (2007)

(quoting Kemp v. State of Hawai#i Child Support Enforcement

Agency, 111 Hawai#i 367, 391, 141 P.3d 1014, 1038 (2006)

(citations omitted)); see also Hawai#i Rules of Appellate

Procedure Rule 28(b)(4)(iii) (2007) (noting that an appellant's

opening brief shall state "where in the record the alleged error

was objected to or the manner in which the alleged error was

brought to the attention of the court or agency"); HRS § 641–2

(2016) ("The appellate court . . . need not consider a point that

was not presented in the trial court in an appropriate manner."). 

Consequently, Tuasivi's constitutional argument has not been

preserved for appeal and we do not address it.

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Therefore, based on the foregoing, IT IS HEREBY ORDERED

that the Judgment of Conviction and Sentence entered on November

29, 2019, by the Circuit Court of the First Circuit, is affirmed.

DATED: Honolulu, Hawai#i, April 30, 2021.

On the briefs:

Taryn R. Tomasa,

Deputy Public Defender,

for Defendant-Appellant

Stephen K. Tsushima, 

Deputy Prosecuting Attorney, 

for Plaintiff-Appellee

/s/ Lisa M. Ginoza

Chief Judge

/s/ Katherine G. Leonard

Associate Judge

/s/ Keith K. Hiraoka

Associate Judge

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