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IN THE SUPREME COURT OF THE STATE OF HAWAIʻI

---o0o---

________________________________________________________________

IN THE INTEREST OF GH

________________________________________________________________

SCWC-19-0000583

CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS

(CAAP-19-0000583; CASE NO. FC-J 0105711)

OCTOBER 10, 2022

RECKTENWALD, C.J., NAKAYAMA, McKENNA, WILSON, AND EDDINS, JJ.

OPINION OF THE COURT BY McKENNA, J.

I. Introduction

This case arises from an adjudication of GH (“Minor”), a 

teenager at the time, as a law violator by the Family Court of 

the First Circuit (“family court”), for sexually assaulting the 

complaining witness (“CW”), who was nine years old at the time 

of the assault. 

On certiorari, Minor alleges the Intermediate Court of 

Appeals (“ICA”) erred by (1) affirming the family court’s 

Electronically Filed

Supreme Court

SCWC-19-0000583

10-OCT-2022

07:59 AM

Dkt. 15 OP
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exclusion, based on Rule 412 (2016) of the Hawaiʻi Rules of 

Evidence (“HRE”), of Minor’s proffered extrinsic evidence of 

CW’s past false sexual assault allegations; (2) concluding the 

family court had not erred by failing to make a preliminary 

determination as to the truth or falsity of CW’s past sexual 

assault allegations, as required by State v. West, 95 Hawaiʻi

452, 24 P.3d 648 (2001); and (3) concluding there was sufficient 

evidence to deem Minor a law violator.

We preliminarily address the untimeliness of Minor’s 

certiorari application, which was filed more than eight months 

after the ICA’s October 30, 2020 judgment on appeal. In State 

v. Uchima, 147 Hawaiʻi 64, 464 P.3d 852 (2020), we held that a 

defendant in a criminal case has the right to effective 

assistance of counsel during all stages of an appeal, which 

includes procedural compliance with the statutory requirements 

for filing an application for writ of certiorari. 147 Hawaiʻi at 

79, 464 P.3d at 867. We have also held that “[b]ecause 

effective assistance of counsel is fundamental to a fair trial, 

it should be guaranteed in juvenile law violator proceedings as 

have other fundamental criminal case guarantees.” In re Doe, 

107 Hawaiʻi 12, 16, 108 P.3d 966, 970 (2005). Hence, Uchima’s 

holding applies to juvenile law violation cases.

Addressing the merits, we hold that (1) under the 

circumstances of this case, it was an abuse of discretion for 
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the family court to exclude the proffered evidence based on the 

procedural notice requirements of HRE Rule 412; (2) as further 

discussed below, if a defendant seeks to admit a complaining 

witness’s false allegations of sexual assault, then 

admissibility of such evidence is not subject to HRE Rule 412 or 

West, 95 Hawaiʻi 452, 24 P.3d 648; and (3) Minor’s insufficiency 

of evidence argument lacks merit. 

We therefore vacate the ICA’s October 30, 2020 judgment on 

appeal as well as the family court’s June 5, 2019 decree, July 

23, 2019 order, and September 24, 2019 findings of fact and 

conclusions of law. We remand to the family court for 

proceedings consistent with this opinion.

II. Background

A. Family court proceedings

1. Charges

On February 5, 2019, the State of Hawaiʻi (“the State”) 

filed six amended petitions against Minor1: one for first-degree 

 

1 Minor comes within the purview of Hawaiʻi Revised Statutes (“HRS”) § 

571-11 (2018), which states in relevant part:

Except as otherwise provided in this chapter, the court 

shall have exclusive original jurisdiction in proceedings:

(1) Concerning any person who is alleged to have 

committed an act prior to achieving eighteen years of 

age that would constitute a violation or attempted 

violation of any federal, state, or local law or 

county ordinance. 
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sexual assault,2 four for third-degree sexual assault,3 and one 

for attempted first-degree sexual assault.4

2. Motion in limine and hearing on the motion

On February 8, 2019, the State filed a motion in limine 

based on HRE Rule 4125 to prohibit the defense and witnesses from 

referring to “[a]ny evidence, including but not limited to 

reputation and/or opinion, relating to the past sexual history, 

behavior and/or character of [CW].” At the time, trial was 

scheduled for April 17, 2019. The State said it had reviewed 

child welfare reports and believed Minor might attempt to 

inquire into the past sexual history of CW in violation of HRE 

Rule 412. Minor did not file a memorandum in response to this 

motion. Minor also did not file any HRE Rule 412(c) notice or 

 

2 HRS § 707-730 (2014) provided in relevant part: “(1) A person commits 

the offense of sexual assault in the first degree if: . . . (b) The person 

knowingly engages in sexual penetration with another person who is less than 

fourteen years old[.]”

3 HRS § 707-732 (2014) provided in relevant part: “(1) A person commits 

the offense of sexual assault in the third degree if: . . . (b) The person 

knowingly subjects to sexual contact another person who is less than fourteen 

years old or causes such a person to have sexual contact with the person[.]”

4 HRS § 705-500 (2014) provides in relevant part:

(1) A person is guilty of an attempt to commit a crime if 

the person:

. . . .

(b) Intentionally engages in conduct which, under the 

circumstances as the person believes them to be, 

constitutes a substantial step in a course of conduct 

intended to culminate in the person’s commission of 

the crime.

5 See infra Section IV.B.1 for relevant portions of HRE Rule 412.
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motion regarding CW’s past sexual behavior allegations of sexual 

assault by others. 

Just before beginning the rescheduled June 4, 2019 bench 

trial, the family court heard the State’s motion in limine. The 

State indicated Minor might attempt to inquire into CW’s past 

sexual history, which it said must be excluded under HRE Rule 

412. Minor responded that although he would not offer evidence 

of CW’s past sexual conduct, he would be going into accusations 

she had made against others.

3. Bench trial 

At trial, various witnesses testified. CW testified as 

follows:

She was sexually assaulted by Minor when she was nine years 

old. At the time, she lived with her mother and father, two 

older sisters, the sisters’ boyfriends, and her little sister. 

She met Minor as a friend of a neighbor with whom she often 

spent time. She came to view Minor as an older brother, and 

Minor often slept over at her house.

One night, Minor came into her room and sexually assaulted 

her. CW described the assault in detail. Minor told her that 

if she told anyone, something would happen to her. CW did not 

speak about what happened until she told a hospital employee.

CW was later transferred into the care of a foster mother, 

her aunt. Her aunt had a daughter, CW’s cousin, who was three 
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years older. After moving in with her aunt, CW went to the 

Children’s Justice Center (“CJC”) and spoke with an interviewer 

about the sexual assault by Minor. She was later taken to a 

doctor for a physical examination.

On cross-examination, Minor asked CW whether she had told 

her cousin that her sister’s boyfriend had sexually assaulted 

her. CW responded she had told her cousin that her sister’s 

boyfriend would watch her when she slept, but denied saying he 

had touched her sexually. Minor asked the same question 

regarding CW’s father. CW responded she had only told her 

cousin her father at times made her feel uncomfortable. Minor 

also asked whether CW told her cousin that another cousin had 

touched and raped her. The court sustained the State’s 

objection to this question.

Minor then also asked whether CW had told her aunt she had 

been sexually assaulted by her father. The State objected on 

relevance and hearsay grounds. Minor responded he was 

attempting to cross-examine CW regarding past false accusations 

of sexual assault, stating “when the [CW] made a statement to 

the police, she denied these false accusations.” The family 

court concluded it would “allow some leeway” and permitted Minor

to ask CW whether she had told her aunt she had been sexually 

assaulted by her father. CW again responded she had not said 
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that her father sexually assaulted her, but that certain things 

he did had made her uncomfortable.

Minor then attempted to adduce extrinsic evidence of CW’s 

alleged false sexual assault allegations. Minor called CW’s 

aunt as a witness and asked what CW had said about being 

sexually assaulted. The family court sua sponte disallowed a 

response on hearsay grounds.6 Minor then indicated he was ready 

to call CW’s cousin to the stand to ask similar questions about 

CW’s false allegations, but the family court disallowed any such 

testimony.7

At the close of evidence, the family court ruled it had 

properly excluded testimony from others concerning CW’s past 

statements regarding other alleged sexual assaults because Minor 

never filed a HRE Rule 412 motion with fifteen days’ notice 

before trial. Minor argued that a HRE Rule 412 motion was not 

necessary because the defense only intended to ask about false 

accusations, not sexual behavior, but the family court 

disagreed.

 

6 The anticipated evidence was not being proffered for the truth of the 

matter asserted.

7

Minor also questioned Detective Cadiz, who had watched the CJC 

interview through a window, about what CW had said. Defense counsel 

attempted to elicit evidence that, contrary to her trial testimony, CW never 

said that her father made her uncomfortable.
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4. Adjudication and sentence

The family court then adjudicated Minor a law violator on 

one count of first-degree sexual assault and two counts of 

third-degree sexual assault and dismissed the remaining counts 

with prejudice. The family court committed Minor to the custody 

of the Office of Youth Services for commitment to the Hawaiʻi

Youth Correctional Facility until age nineteen, with orders for 

the Minor to be referred for behavioral services. On June 5, 

2019, the family court filed its “Decree Re: Law Violation 

Petition(s)” (“June 5, 2019 decree”).

5. Post-trial motions

On June 13, 2019, Minor moved for a new trial, arguing the 

family court erred in precluding Minor from eliciting evidence 

of CW’s false accusations of sexual assault by others. Citing 

to West, 95 Hawaiʻi 452, 24 P.3d 648, Minor asserted such 

evidence was not “sexual conduct” evidence under HRE Rule 412. 

Minor also alternatively argued that, pursuant to West, the 

family court erred in not making a preliminary determination as 

to the falsity of CW’s prior allegations. Minor argued he would 

have met his burden of proving that CW’s statements were false. 

Minor also asserted that there were “prejudicial violations of 

the Minor’s constitutional rights” and that he had been denied a 

fair trial.
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On July 23, 2019, the family court affirmed its evidentiary 

rulings based on Minor’s failure to file a HRE Rule 412 motion 

before trial (“July 23, 2019 order”). The family court’s postappeal September 24, 2019 findings of fact and conclusions of 

law stated (1) defense counsel never filed a HRE Rule 412 motion 

before trial; (2) under West, 95 Hawaiʻi at 459, 24 P.3d at 655, 

“where the truth or falsity of a statement regarding an 

unrelated sexual assault is unknown, it falls within the purview 

of the rape shield statute and must be analyzed accordingly”; 

(3) defense counsel only asserted CW’s prior statements may have 

been false; and (4) because the threshold of falsity was not 

met, CW’s statements fell within HRE Rule 412 and were properly 

excluded.

B. ICA proceedings

On appeal to the ICA, Minor argued the family court erred 

because (1) evidence of CW’s prior inconsistent statements about 

prior sexual assaults should have been admitted under HRE Rule 

613(b) (2016);

8 (2) CW’s allegations should not have been 

excluded under HRE Rule 412 because West held that a complaining 

witness’s false statements of prior unrelated sexual assaults 

 

8 HRE Rule 613(b) provides:

Extrinsic evidence of prior inconsistent statement of 

witness. Extrinsic evidence of a prior inconsistent 

statement by a witness is not admissible unless, on direct 

or cross-examination, (1) the circumstances of the 

statement have been brought to the attention of the 

witness, and (2) the witness has been asked whether the 

witness made the statement.
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are not excluded by HRE Rule 412; (3) in any event, the family 

court should have made a preliminary determination as to the 

falsity of CW’s prior allegations based on West; and (4) there 

was insufficient evidence that he was a law violator.

In its summary disposition order, the ICA held evidence of 

CW’s past sexual assault allegations was inadmissible under HRE 

Rule 412. The ICA concluded the family court did not err in not 

making a preliminary determination as to the falsity of CW’s 

allegations because Minor failed to comply with HRE Rule 

412(c)’s written notice requirement. The ICA also held that 

even though the family court had not made a preliminary 

determination as to falsity, the family court could find in its 

post-trial findings that falsity had not been shown. 

Additionally, the ICA held CW’s inconsistent statements 

inadmissible under HRE Rule 613 because HRE Rule 412, a law of 

specific application, controls over HRE Rule 613, a law of 

general application. Finally, the ICA held there was sufficient 

evidence to support Minor’s adjudication as a law violator. The 

ICA thus affirmed the family court’s June 5, 2019 decree and 

July 23, 2019 order.

C. Supreme Court proceedings

More than eight months after the ICA’s October 30, 

2020 judgment on appeal, Minor’s counsel filed an untimely 

certiorari application. Defense counsel states, “Due to 
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counsel’s error, an application for writ of certiorari was 

not filed in a timely fashion in the above-entitled matter. 

However, pursuant to the principles outlined in State v. 

Uchima, . . . we ask that this court consider the arguments 

and representations presented herein.”

III. Standards of review

A. Jurisdiction

The existence of jurisdiction is a question of law and is 

reviewed de novo under the right/wrong standard. Lingle v. Haw.

Gov’t Emps. Ass’n, Local 152, 107 Hawaiʻi 178, 182, 111 P.3d 587, 

591 (2005).

B. Admissibility of evidence 

When application of a particular evidentiary rule can yield 

only one correct result, the proper standard for appellate 

review is the right/wrong standard. However, the 

traditional abuse of discretion standard should be applied 

in the case of those rules of evidence that require a 

“judgment call” on the part of the trial court. 

State v. Heggland, 118 Hawaiʻi 425, 434, 193 P.3d 341, 350 (2008) 

(citation omitted). 

C. Exclusion of admissible evidence

A trial court’s error in excluding evidence prejudicially 

affects a defendant’s right to a fair trial and requires vacatur 

unless the exclusion was harmless beyond a reasonable doubt. 

See State v. Kato, 147 Hawaiʻi 478, 497, 465 P.3d 925, 944 

(2020); State v. Abion, 148 Hawaiʻi 445, 448, 478 P.3d 270, 273 

(2020).
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D. Statutory interpretation

The interpretation of a statute is a question of law 

that this court reviews de novo. When construing a 

statute, our foremost obligation is to ascertain and give 

effect to the intention of the legislature, which is to be 

obtained primarily from the language contained in the 

statute itself. And we must read statutory language in the 

context of the entire statute and construe it in a manner 

consistent with its purpose.

Abion, 148 Hawaiʻi at 454, 478 P.3d at 279 (citations omitted).

E. Sufficiency of the evidence

Evidence adduced in the trial court must be considered in 

the strongest light for the prosecution when the appellate 

court passes on the legal sufficiency of such evidence to 

support a conviction. The test on appeal is not whether 

guilt is established beyond a reasonable doubt, but whether 

there was substantial evidence to support the conclusion of 

the trier of fact. Indeed, even if it could be said in a 

bench trial that the conviction is against the weight of 

the evidence, as long as there is substantial evidence to 

support the requisite findings for conviction, the trial 

court will be affirmed. Substantial evidence is credible 

evidence which is of sufficient quality and probative value 

to enable a person of reasonable caution to support a 

conclusion.

State v. Xiao, 123 Hawaiʻi 251, 257, 231 P.3d 968, 974 (2010) 

(cleaned up).

IV. Discussion

A. Uchima applies to juvenile proceedings

Minor’s certiorari application was filed approximately 

eight months after the ICA’s judgment on appeal. Under HRS § 

602-59(a) and (c) (2016 & Supp. 2017), however, a party has up 

to thirty days after the ICA’s judgment on appeal or dismissal 

order to file a certiorari application with this court. A party

may extend this deadline by an additional thirty days upon 

written request. HRS § 602-59(c). 
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In Uchima, 147 Hawaiʻi at 82, 464 P.3d at 870, we held this 

court may “decline to dismiss an application for writ of 

certiorari as untimely and proceed to review its merits when it 

is plain from the record that defense counsel failed to comply 

with the procedural requirements for filing the application.” 

(Citation omitted). Uchima held that the Hawaiʻi Constitution 

“guarantees a defendant in a criminal case the right to the 

effective assistance of counsel on certiorari review in the same 

manner that it does during all other critical stages of the 

criminal proceedings.” 147 Hawaiʻi at 76, 464 P.3d at 864. 

This court has also held that “[b]ecause effective 

assistance of counsel is fundamental to a fair trial, it should 

be guaranteed in juvenile law violator proceedings as have other 

fundamental criminal case guarantees.” In re Doe, 107 Hawaiʻi 

12, 16, 108 P.3d 966, 970 (2005). Hence, Uchima also applies to 

juvenile law violation proceedings. 

Here, defense counsel admitted ineffective assistance of 

counsel, indicating in the certiorari application that “[d]ue to 

counsel’s error, an application for writ of certiorari was not 

filed in a timely fashion[.]” We therefore decline to dismiss 

Minor’s certiorari application and now turn to its merits. We 

address Minor’s questions on certiorari as follows.
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B. The proffered evidence should not have been excluded 

At trial, Minor sought to introduce extrinsic evidence that 

CW made false statements of sexual assault against others. The 

family court and ICA held the proffered evidence inadmissible 

based on HRE Rule 412, as applied by West, 95 Hawaiʻi 452, 24 

P.3d 648.

1. HRE Rule 412’s plain language renders it inapplicable 

to false allegations of sexual assault

HRE Rule 412 provides in relevant part as follows:

Rule 412. Sexual offense and sexual harassment cases; 

relevance of victim’s past behavior.

(a) Notwithstanding any other provision of law, in a 

criminal case in which a person is accused of a sexual 

offense, reputation or opinion evidence of the past sexual 

behavior of an alleged victim of the sexual offense is not 

admissible to prove the character of the victim to show 

action in conformity therewith. 

(b) Notwithstanding any other provision of law, in a 

criminal case in which a person is accused of a sexual 

offense, evidence of an alleged victim’s past sexual 

behavior other than reputation or opinion evidence is not 

admissible to prove the character of the victim to show 

action in conformity therewith, unless the evidence is:

(1) Admitted in accordance with subsection 

(c)(1) and (2) and is constitutionally required to be 

admitted; or

(2) Admitted in accordance with subsection (c) 

and is evidence of:

(A) Past sexual behavior with persons 

other than the accused, offered by the accused 

upon the issue of whether the accused was or

was not, with respect to the alleged victim, 

the source of semen or injury; or

(B) Past sexual behavior with the

accused and is offered by the accused upon the 

issue of whether the alleged victim consented 

to the sexual behavior with respect to which 

sexual assault is alleged.
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(c)(1) If the person accused of committing a sexual 

offense intends to offer under subsection (b) evidence of 

specific instances of the alleged victim’s past sexual 

behavior, the accused shall make a written motion to offer 

the evidence not later than fifteen days before the date on 

which the trial in which the evidence is to be offered is 

scheduled to begin, except that the court may allow the 

motion to be made at a later date, including during trial, 

if the court determines either that the evidence is newly 

discovered and could not have been obtained earlier through 

the exercise of due diligence or that the issue to which 

the evidence relates has newly arisen in the case. Any 

motion made under this paragraph shall be served on all 

other parties and on the alleged victim.

(2) The motion described in paragraph (1) 

shall be accompanied by a written offer of proof. If 

the court determines that the offer of proof contains 

evidence described in subsection (b), the court shall 

order a hearing in chambers to determine if the 

evidence is admissible. At the hearing, the parties 

may call witnesses, including the alleged victim, and 

offer relevant evidence. Notwithstanding subsection 

(b) of rule 104, if the relevancy of the evidence 

that the accused seeks to offer in the trial depends 

upon the fulfillment of a condition of fact, the 

court, at the hearing in chambers or at a subsequent 

hearing in chambers scheduled for this purpose, shall 

accept evidence on the issue of whether the condition 

of fact is fulfilled and shall determine the issue.

(3) If the court determines on the basis of 

the hearing described in paragraph (2) that the 

evidence that the accused seeks to offer is relevant 

and that the probative value of the evidence 

outweighs the danger of unfair prejudice, the 

evidence shall be admissible in the trial to the 

extent an order made by the court specifies evidence 

that may be offered and areas with respect to which 

the alleged victim may be examined or cross-examined.

. . . .

 (h) For purposes of this rule, the term “past sexual 

behavior” means sexual behavior other than the sexual 

behavior with respect to which a sexual offense or sexual 

harassment is alleged.

HRE Rule 412 prohibits evidence of a complaining witness’s 

“past sexual behavior” in a criminal case in which a defendant 

is charged with sexual assault when offered for certain 

purposes. HRE Rule 412(h) defines “past sexual behavior” as 
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“sexual behavior other than the sexual behavior with respect to 

which a sexual offense or sexual harassment is alleged.” 

State v. Kelekolio, 74 Haw. 479, 849 P.2d 58 (1993), noted 

that although HRE Rule 412 does not define “behavior” as used in 

the term “sexual behavior,” it “pertains to the admissibility of 

the sexual assault victim’s past sexual conduct.” 74 Haw. at 

521 n.19, 849 P.2d at 77 n.19 (cleaned up) (citing S. Stand. 

Comm. Rep. No. 22–80, in 1980 Senate Journal, at 1034). We 

pointed out that “conduct” means a “mode of action” or 

“something done.” Id. (first quoting Conduct, Black’s Law 

Dictionary (6th ed. 1990); and then quoting Action, Black’s Law 

Dictionary (6th ed. 1990)). Hence, Kelekolio concluded that 

false allegations of sexual activity do not fall under HRE Rule 

412. See 74 Haw. at 521, 849 P.2d at 77.9 

2. West

In West, defense counsel sought to introduce evidence 

regarding a four-year-old’s statement that she had been sexually 

 

9

In Kelekolio, the complaining witness had Down syndrome and functioned 

at the cognitive level of a four- to seven-year-old. 74 Haw. at 486, 849 

P.2d at 63. The defendant sought to introduce evidence that the complaining 

witness habitually fantasized about sex, had previously reported sexual 

encounters with an imaginary boyfriend, and had previously reported that she 

was pregnant when she was not. 74 Haw. at 489-498, 849 P.2d at 64-68. The 

defendant argued that if the complaining witness previously fantasized sexual 

events, then the jury could find that she fantasized the alleged sexual 

assault by the defendant. 74 Haw. at 520, 849 P.2d at 77.

 

Because the defendant had not presented an offer of proof explaining 

that he was not seeking to adduce evidence of the complainant’s past sexual 

behavior, however, this court affirmed the trial court’s exclusion of the 

proffered evidence. 74 Haw. at 522-23, 849 P.2d at 78.
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assaulted by someone other than the defendant. 95 Hawaiʻi at

454-55, 24 P.3d at 650-51. Defense counsel sought admission of 

the evidence, but indicated it was unclear whether the 

statements of the four-year-old were true or false. 95 Hawaiʻi 

at 455, 24 P.3d at 651. 

West initially recognized cases holding that evidence of 

false statements of unrelated sexual assaults are not excluded 

by HRE Rule 412 because they are not evidence of sexual conduct. 

95 Hawaiʻi at 457-58, 24 P.3d at 653-54. But we noted that 

courts have made admissibility of sexual assault allegations 

dependent on actual falsity and have required a threshold 

determination regarding truth or falsity. 95 Hawaiʻi at 458, 24 

P.3d at 654.10 We held that:

where a defendant seeks to admit allegedly false statements 

made by a complainant regarding an unrelated sexual 

assault, the trial court must make a preliminary 

determination based on a preponderance of the evidence that 

the statements are false. Correlatively, where the trial 

 

10 Some states’ rape shield statutes specifically allow evidence of false 

sexual assault allegations when the probative value of such evidence 

outweighs potential prejudice. See ARIZ. REV. STAT. ANN. § 13-1421(A)(5) (2022) 

(allowing evidence of “false allegations of sexual misconduct made by the 

victim against others”); IDAHO R. EVID. Rule 412(b)(3) (2022) (allowing “false 

allegations of sex crimes made at an earlier time”); MISS. R. EVID. Rule 

412(b)(2) (2022) (allowing “ false allegations of sexual offenses made at any 

time before trial by the victim”); OKLA. STAT. tit. 12, § 2412(B)(2) (2022) 

(allowing “[f]alse allegations of sexual offenses”); VT. STAT. ANN. tit. 13, § 

3255(a)(3)(C) (2022) (allowing “evidence of specific instances of the 

complaining witness’ past false allegations of violations of this chapter”); 

WIS. STAT. § 972.11(2)(b)(3) (2022) (allowing “[e]vidence of prior untruthful 

allegations of sexual assault made by the complaining witness”).

Other states’ rape shield statutes do not specifically reference false 

sexual assault allegations, and admission of such evidence appears dependent 

on caselaw. See, e.g., Miller v. State, 779 P.2d 87 (Nev. 1989); Clinebell 

v. Commonwealth, 368 S.E.2d 263 (Va. 1988).
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court is unable to determine by a preponderance of the 

evidence that the statement is false, the defendant has 

failed to meet [their] burden, and the evidence may be 

properly excluded.

95 Hawaiʻi at 460, 24 P.3d at 656. 

Hence, West conditioned admissibility of unrelated sexual 

assault evidence upon compliance with HRE Rule 412 procedural 

requirements even when the defense proffers the evidence based 

on falsity. See id. In addition, West imposed a requirement on 

trial courts to make a threshold determination as to truth or 

falsity and expressly determine falsity before admitting any 

such evidence. See id. We indicated we were doing so because

“to permit reception of evidence which may be true or false 

would allow circumvention of the rape shield statute because the 

jury may be tempted to consider evidence about an alleged 

victim’s sexual conduct in order to determine the victim’s 

credibility.” 95 Hawaiʻi at 459, 24 P.3d at 655 (cleaned up). 

3. West’s procedural notice requirements have been 

limited by Pond

Based on West, both the family court and the ICA concluded 

that Minor’s failure to file a HRE Rule 412(c)(1) notice or 

motion at least fifteen days before trial precluded him from 

introducing extrinsic evidence of allegedly false allegations of 

sexual assault CW had made to others.

Under the circumstances of this case, however, the 

proffered evidence should not have been excluded based on HRE 
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Rule 412. This is because the procedural requirements of HRE 

Rule 412 have been limited by State v. Pond, 118 Hawaiʻi 452, 193 

P.3d 368 (2008).

As noted, the State filed a HRE Rule 412 motion in limine 

on February 8, 2019, more than two months before the thenscheduled April 17, 2019 trial date. When the motion was filed, 

it was scheduled to be heard on March 4, 2019. After the motion 

in limine was filed, the trial date was continued to June 4, 

2019. For some reason, the motion was never heard before the 

June 4, 2019 trial date, although the motion was originally 

scheduled to be heard well before trial and it appears there 

were various pretrial conferences.

Pond, 118 Hawaiʻi 452, 193 P.3d 368, addressed HRE Rule 

404(b)’s (2016) requirement that the proponent of “prior bad 

act” evidence give “reasonable notice.” In doing so, we 

discussed United States Supreme Court precedent regarding the 

constitutionality of and reasons for notice requirements in the 

context of rape shield statutes like HRE Rule 412: 

The rape shield statute, designed to protect victims 

of rape from being subjected to harassing or irrelevant 

questions concerning their past sexual behavior, permits a 

defendant to introduce evidence of [their] own past sexual 

conduct with the victim if the defendant files a written 

motion and an offer of proof within ten days after he is 

arraigned. . . . 

The Supreme Court recognized that the rape shield 

statute implicates the sixth amendment and that, to the 

extent that it operates to prevent a criminal defendant 

from presenting relevant evidence, the defendant’s ability 

to confront adverse witnesses and present a defense is 
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diminished. This does not necessarily render the statute 

unconstitutional. [The Court] observed that the 

defendant’s right to present relevant evidence may, in 

appropriate cases, bow to accommodate other legitimate 

interests in the criminal trial process.

Pursuant to this rule, the Supreme Court recognized 

the state’s interest in the policy underlying the rape 

shield statute's procedural prerequisites—to

protect rape victims from surprise, harassment, and 

invasions of privacy, and permit the prosecution to 

investigate the evidence. . . . Based on its prior rulings 

and the state’s interest in the rape shield statute, [the 

Court] ruled that precluding evidence based on 

the rape shield statute’s notice requirement is not per 

se unconstitutional. However, it remanded the case to 

determine whether the trial court abused its discretion by 

precluding [the defendant’s] evidence.

Pond, 118 Hawaiʻi at 464-65, 193 P.3d at 380-81 (cleaned up). 

Pond recognizes that although constitutional rights 

implicated by a rape-shield statute are not automatically 

violated by notice requirements, such notice requirements must 

further “legitimate interests,” which are to “protect rape 

victims from surprise, harassment, and invasions of privacy, and 

permit the prosecution to investigate the evidence.” See id. 

Pond also recognized that the notice requirement is subject to 

an abuse of discretion review. See 118 Hawaiʻi at 461, 193 P.3d 

at 377.

Whether or not HRE Rule 412 applies to false allegations of 

sexual assault, under the circumstances of this case, it was an 

abuse of discretion for the family court to exclude the 

proffered evidence based on the procedural notice requirements 

of HRE Rule 412. The State knew about the evidence and filed a 

HRE Rule 412 motion in limine months before trial. The State’s 
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motion and its arguments at the June 4, 2019 hearing indicate it 

filed the HRE Rule 412 motion in limine because it had reviewed 

the child welfare reports and was aware that evidence regarding 

sexual assaults by others could be elicited by Minor. The State 

was not surprised and was not precluded from investigating the 

evidence it already knew. Thus, it was error to exclude the 

evidence based on failure to comply with HRE Rule 412 procedural 

notice requirements. 

4. West must be clarified

Minor also challenges (1) the family court’s post-trial 

determination that it had properly excluded the evidence because 

Minor had failed to establish falsity as required by West; and 

(2) the ICA’s ruling the family court could make that finding 

even though the family court had not made a preliminary 

determination as to falsity.

As discussed, West initially recognized that false 

allegations of unrelated sexual assaults are not excluded by HRE 

Rule 412. See 95 Hawaiʻi at 457-58, 24 P.3d at 653-54. Yet, in 

addition to requiring compliance with HRE Rule 412 procedural 

requirements, West held that “where a defendant seeks to admit 

allegedly false statements made by a complainant regarding an 

unrelated sexual assault, the trial court must make a 

preliminary determination based on a preponderance of the 
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evidence that the statements are false.” 95 Hawaiʻi at 460, 24 

P.3d at 656. 

This holding of West raises significant issues. As 

recognized by Kelekolio and initially in West, false allegations 

of sexual assault are not sexual conduct, which is the subject 

of HRE Rule 412. West also implicates the constitutional rights 

of criminal defendants.11 Additionally, as a practical matter, a 

trial court may not be able to ascertain whether a complaining 

witness’s allegations of sexual assault by others are true or 

false. And even in a bench trial, as in this case, it can be 

error for the court to reject evidence which, if admitted, would 

present an essential factual issue for itself as the trier of 

fact. See Abion, 148 Hawaiʻi at 448, 478 P.3d at 273. 

 

11 Such rights include rights to confrontation, cross-examination, and to 

present a complete defense, which also apply to minors in juvenile 

proceedings. For example, we have noted:

HRE 412 cannot override the constitutional rights of the 

accused. Under sections 5 and 14 of Article I of our State 

Constitution, appellant’s right of confrontation includes a 

right to appropriate cross-examination of the complaining 

witness.

State v. Calbero, 71 Haw. 115, 124, 785 P.2d 157, 161 (1989).

For adults, the constitutional right to a jury trial may also be 

implicated. For example, we have stated:

The rule requiring the submission of factual determinations 

to the jury if there is any evidence upon which the jury 

may act is based on the principle that credibility of 

witnesses and weight of the evidence are for the jury to 

decide. The court should not invade the jury’s province of 

making factual determinations.

State v. Riveira, 59 Haw. 148, 154, 577 P.2d 793, 797 (1978) (citation 

omitted).
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This case is an example of the difficulty of applying West.

We therefore revisit and clarify West as follows: If a 

defendant seeks to admit a complaining witness’s false 

allegations of sexual assault, then admissibility is not subject 

to HRE Rule 412 or West. Defendants seeking to admit such 

evidence must make it clear the evidence is being proffered for 

its falsity. We do not address the applicability of other rules 

of evidence, including HRE Rule 403 (2016).

12 A court must also, 

however, consider the constitutional rights of the defendant.13 

When a defendant seeks to admit evidence of sexual assault 

allegations based on their truth or where truth or falsity is 

unclear, the admission of such evidence is subject to HRE Rule 

412. However, we abrogate West’s requirement that the trial 

court make a preliminary determination based on a preponderance 

of the evidence that the statements are false before allowing 

admission. For such evidence, HRE Rule 412 explicitly requires 

compliance with HRE Rule 412(c) procedural requirements as well 

as consideration of a defendant’s constitutional rights. See

HRE Rule 412(b)(1). HRE Rule 403 considerations also come into 

 

12 HRE Rule 403 provides, “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.”

13 See supra note 11.
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play, but are also subject to a defendant’s constitutional 

rights. 

If any evidence of a complaining witness’s allegations of 

sexual assault by others is admitted in jury trials, the court 

should give appropriate limiting instructions.

In this case, Minor proffered extrinsic evidence that CW 

had made false statements of sexual assault against others. For 

the reasons explained above, we hold that this evidence was not 

subject to HRE Rule 412 or West.

14 The exclusion of the evidence 

proffered in this case was not harmless beyond a reasonable 

doubt. Minor’s adjudication as a law violator must therefore be 

vacated. 

C. The insufficient evidence argument is without merit

Finally, in a conclusory fashion, Minor asserts that there 

was insufficient evidence for the family court to adjudicate him 

a law violator. Appellate challenges to the sufficiency of 

evidence must always be decided. State v. Davis, 133 Hawaiʻi 

102, 116, 324 P.3d 912, 926 (2014).

Viewing the record in the light most favorable to the 

State, there was sufficient evidence to support the family 

 

14 The foundational requirements of HRE Rule 613(b) had been met. See

supra note 8. The issue of whether any of the proffered evidence could or 

should have been excluded based on HRE Rule 403, consistent with Minor’s 

constitutional rights, is not before us.
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court’s adjudication of Minor as a law violator on Counts 1,2, 

and 4. This argument on certiorari is devoid of merit. 

V. Conclusion

Hence, we vacate the ICA’s October 30, 2020 judgment on 

appeal as well as the family court’s June 5, 2019 decree, July 

23, 2019 order, and September 24, 2019 findings of fact and 

conclusions of law. We remand to the family court for 

proceedings consistent with this opinion.

Walter J. Rodby /s/ Mark E. Recktenwald

for petitioner

/s/ Paula A. Nakayama

Brian R. Vincent

for respondent /s/ Sabrina S. McKenna

/s/ Michael D. Wilson

/s/ Todd W. Eddins