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NO. CAAP-20-0000473

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

STATE OF HAWAI#I, Plaintiff-Appellee, v.

JOHNNY ETIMANI, Defendant-Appellant

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT

(CASE NO. 1CPC-17-0001446)

SUMMARY DISPOSITION ORDER

(By: Ginoza, C.J., and Hiraoka and Wadsworth, JJ.)

Defendant-Appellant Johnny Etimani (Etimani) appeals

from the Judgment of Conviction and Sentence (Judgment), entered

on June 25, 2020, in the Circuit Court of the First Circuit

(Circuit Court).1/ After a jury trial, Etimani was convicted of

one count of Sexual Assault in the Second Degree, in violation of

Hawaii Revised Statutes (HRS) § 707-731(1)(a),2/ and two counts of

Sexual Assault in the Fourth Degree, in violation of HRS § 707-

733(1)(a).3/ 

1/ The Honorable Paul B.K. Wong presided. 

2/ HRS § 707-731(1)(a) (Supp. 2016) provides:

(1) A person commits the offense of sexual assault in

the second degree if:

(a) The person knowingly subjects another person to

an act of sexual penetration by compulsion[.]

3/ HRS § 707-733(1)(a) (Supp. 2016) provides:

(1) A person commits the offense of sexual assault in

the fourth degree if:

(continued...)

Electronically Filed

Intermediate Court of Appeals

CAAP-20-0000473

26-JAN-2022

12:24 PM

Dkt. 101 SO
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On appeal, Etimani contends that: (1) the Circuit

Court erred in allowing expert DNA testimony; (2) the Circuit

Court erred when it failed to "reinstruct" the jury as to

consent; and (3) Etimani was denied effective assistance of

counsel because (a) counsel violated Etimani's constitutional

right to testify on his own behalf; (b) counsel erred in allowing

Michelle Amorin (Amorin), a Honolulu Police Department (HPD)

criminalist, to be qualified as an expert in serology and

forensic DNA testing; and (c) counsel failed to ensure that the

jury was properly reinstructed as to consent. 

After reviewing the record on appeal and the relevant

legal authorities, and giving due consideration to the issues

raised and the arguments advanced by the parties, we resolve

Etimani's contentions as follows and affirm. 

(1) Etimani contends that the Circuit Court erred in

qualifying Amorin as an expert witness in the area of serology

and forensic DNA testing, "despite the fact that defense counsel

pointed out [Amorin's] limited educational background in

scientific studies." Etimani's argument appears to be based on

Amorin's not having a masters or PhD degree in molecular biology,

population genetics, or other allegedly relevant fields.4/ 

Hawaii Rules of Evidence (HRE) Rule 702 (2016), which

governs the admission of expert testimony, states: 

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.

"Qualifying a witness as an expert requires that the

proponent lay foundation establishing that '(1) the witness is

3/ (...continued)

(a) The person knowingly subjects another person,

not married to the actor, to sexual contact by

compulsion or causes another person, not married

to the actor, to have sexual contact with the

actor by compulsion[.]

4/ Amorin testified that she had a masters degree in education.

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qualified by knowledge, skill, training, or education; (2) the

testimony has the capacity to assist the trier of fact to

understand the evidence or to determine a fact in issue; and (3)

the expert's analysis meets a threshold level of reliability and

trustworthiness.'" State v. Jones, 148 Hawai#i 152, 166, 468

P.3d 166, 180 (2020) (brackets omitted) (quoting State v.

Metcalfe, 129 Hawai#i 206 227, 297 P.3d 1062, 1083 (2013)). 

Here, Etimani challenges only the first prong of the applicable

three-part test, arguing that "[Amorin's] opinion was limited by

a lack of skill, experience, training, or education." 

In construing HRE Rule 702, the Hawai#i Supreme Court

has recognized that "'it is not necessary that the expert witness

have the highest possible qualifications to testify about a

particular matter;' instead, 'the expert witness must have such

skill, knowledge, or experience in the field in question as to

make it appear that his opinion or inference-drawing would

probably aid the trier of fact in arriving at the truth.'" Leone

v. Cty. of Maui, 141 Hawai#i 68, 84, 404 P.3d 1257, 1273 (2017)

(brackets omitted) (quoting Klink ex rel. Klink v. State, 113

Hawai#i 332, 352, 152 P.3d 504, 524 (2007)); see State v.

Wakisaka, 102 Hawai#i 504, 518, 78 P.3d 317, 331 (2003) ("An

expert witness need not possess the highest possible

qualifications to testify about a particular matter." (citing

Tabieros v. Clark Equip. Co., 85 Hawai#i 336, 396, 944 P.2D 1279,

1339 (1997))). Additionally, "[t]he determination of whether or

not a witness is qualified as an expert in a particular field is

largely within the discretion of the trial judge, and, as such,

will not be upset absent a clear abuse of discretion." Jones,

148 Hawai#i at 166, 468 P.3d 180 (quoting State v. Torres, 60

Haw. 271, 277, 589 P.2d 83, 87 (1978)).

At trial, Amorin testified to the following: She is a

level 2 criminalist with HPD. Her duties and responsibilities

as a criminalist "include performing serology5/ and DNA analysis

on items of evidence, interpreting the results from these tests,

5/ Amorin testified that serology "pertains to tests that can

indicate the presence of a possible biological fluid such as blood, semen, or

saliva." 

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and reporting them in conclusions in a case report, and

testifying as an expert witness." (Footnote added.) Amorin

earned an undergraduate degree in biology, and received

specialized training at HPD which she described as "a one year

in-house training with the forensic biology unit that covered

serology and -- or DNA analysis. This included written, oral,

and practical exams." Amorin holds a certificate in molecular

biology from the American Board of Criminalistics and is a member

of the American Academy for Forensic Sciences. At the time of

trial, Amorin had been employed by HPD for "more than four years

. . . ." Amorin testified that she had performed DNA analysis

"hundreds of times" and had previously been qualified as an

expert "in the area of serology and forensic DNA testing" in

Hawai#i courts. Over Etimani's objection, the Circuit Court

qualified Amorin to present "opinion testimony in the area of

serology and forensic DNA testing[,]" pursuant to HRE Rule 702. 

We conclude that under the parameters set by HRE Rule

702 and Hawai#i case law, Amorin's testimony regarding her

knowledge, skill, training, and education was sufficient to

qualify her as an expert witness in the identified area of

expertise. Accordingly, the Circuit Court did not abuse its

discretion in allowing Amorin to testify as an expert witness in

this area.

(2) Etimani contends that the Circuit Court clearly

erred when it failed to "reinstruct" the jury on the issue of

consent after the jury posed a question about consent. 

After the presentation of evidence, the Circuit Court

instructed the jury regarding consent as follows:

In any prosecution the complaining witness's consent

to the conduct alleged or to the result thereof is a defense

if the consent negatives an element of the offense or

precludes the infliction of the harm sought to be prevented

by the law defining the offense. Consent is not a defense

if it is induced by force, duress, or deception. Consent

may be express or implied. 

"Consent" means a voluntary agreement or concurrence. 

The burden is upon the prosecution to prove beyond a

reasonable doubt that the complaining witness did not give

express or implied consent to the conduct alleged or the

result thereof. If the prosecution fails to meet its

burden, then you must find the defendant not guilty.

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During deliberations, the jury asked the Circuit Court:

"Given the fact that [Etimani] denies Count 1 Element 1, is the

jury allowed to consider the possibility that [the complaining

witness (CW)] implied her consent to the act?" The Circuit Court

responded: "Please rely on the instructions provided, along with

your collective reasoning and common sense." At trial, Etimani

did not object to the Circuit Court's response.

On appeal, Etimani concedes that "the [C]ircuit [C]ourt

properly instructed the jury as to the issue of consent"

following the presentation of evidence. Etimani contends,

however, that the Circuit Court plainly erred in responding to

the jury's later question during deliberations. Etimani argues

that the court should have responded "yes" to the jury's question

or, at a minimum, should have specifically referred the jury to

the instruction: "Consent may be express or implied." 

When jury instructions or their omission are at issue

on appeal, "the standard of review is whether, when read and

considered as a whole, the instructions given are prejudicially

insufficient, erroneous, inconsistent, or misleading." Stanley

v. State, 148 Hawai#i 489, 500, 479 P.3d 107, 118 (2021)

(emphasis omitted) (quoting State v. Loa, 83 Hawai#i 335, 350,

926 P.2d 1258, 1273 (1996)). "Once instructional error is

demonstrated, we will vacate, without regard to whether timely

objection was made, if there is a reasonable possibility that the

error contributed to the defendant's conviction[.]" State v.

Nichols, 111 Hawai#i 327, 337, 141 P.3d 974, 984 (2006). 

"Because the circuit court's response to a jury communication is

the functional equivalent of an instruction, the standard of

review for jury instructions also applies to reviewing a trial

court's answers to jury communications." State v. Miyashiro, 90

Hawai#i 489, 492, 979 P.2d 85, 88 (App. 1999). 

We addressed a similar issue in State v. Mark, 120

Hawai#i 499, 210 P.3d 22 (App. 2009), aff'd, 123 Hawai#i 205, 231

P.3d 478 (2010). There, the circuit court denied the defendant's

proposed response to a jury question regarding manslaughter and

instead "responded by referring the jury back to the instructions

given at trial." 120 Hawai#i at 528, 210 P.3d at 51. On appeal,

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the defendant conceded that the jury had been provided with

instructions on both reckless manslaughter and manslaughter based

on extreme mental and emotional distress, as part of the court's

original instructions at trial. Id. The defendant argued,

however, that "the jury was provided with a 'set of instructions

that was voluminous,' and the court 'should have taken the

trouble to distinguish between the two for the sake of the jury's

full understanding of the distinction between the two types of

manslaughter.'" Id. (brackets omitted). We concluded:

The circuit court did not err in refusing [the defendant's]

proposed response, and referring the jury back to the

court's original instructions. Because the instructions

given by the circuit court adequately covered the same

propositions of law included in [the defendant's] requested

response, [the defendant's] requested response was properly

refused. State v. Bush, 58 Haw. 340, 342, 569 P.2d 349, 350

(1977). Although the court's original instructions were

lengthy, they were not "prejudicially insufficient,

erroneous, inconsistent, or misleading." [State v. ]

Gonsalves, 108 Hawai#i [289, ]292, 119 P.3d [597, ]600

[(2005)] (citation omitted). Therefore, the circuit court

did not err.

Id. at 528–29, 210 P.3d at 51–52; see also State v. Rodriguez,

No. CAAP-12-0000212, 2013 WL 3198775, at *2 (Haw. App. June 25,

2013) (SDO) ("the record does not show that the court's reference

back to the jury instructions confused or left an erroneous

impression in the minds of the jurors." (citing State v. Laurie,

56 Haw. 664, 672, 548 P.2d 271, 277 (1976))).

Here, Etimani concedes that the Circuit Court's

original jury instructions "properly instructed the jury as to

the issue of consent[.]" Because those instructions adequately

covered the issue of consent, including that consent may be

express or implied, the Circuit Court did not err in referring

the jury back to the court's original instructions. See Mark,

120 Hawai#i at 528–29, 210 P.3d at 51–52. Likewise, the Circuit

Court did not err in not referring the jury back to a specific

section of the instructions. See id. Although the instructions

may have been lengthy, Etimani has not shown that they were

"prejudicially insufficient, erroneous, inconsistent, or

misleading." Id. Accordingly, the Circuit Court did not err as

claimed.

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(3) Etimani contends that three errors by his trial

counsel constituted ineffective assistance of counsel. 

"The standard for determining the adequacy of counsel's

representation is whether, when viewed as a whole, the assistance

provided is 'within the range of competence demanded of attorneys

in criminal cases.'" State v. Salavea, 147 Hawai#i 564, 576, 465

P.3d 1011, 1023 (2020) (quoting State v. Cordeiro, 99 Hawai#i

390, 405, 56 P.3d 692, 707 (2002)). The defendant has the burden

of establishing ineffective assistance of counsel and must meet

the following two-part test: "First, a defendant must show that

there were specific errors or omissions reflecting counsel's lack

of skill, judgment, or diligence." Id. (citing State v. Antone,

62 Haw. 346, 348, 615 P.2d 101, 104 (1980)). "Second, the

defendant must establish that these errors or omissions resulted

in either the withdrawal or substantial impairment of a

potentially meritorious defense." Id. (citing Antone, 62 Haw. at

348-49, 615 P.2d at 104).

The second prong of this test is satisfied if the defendant

shows a possible impairment of a potentially meritorious

defense. [State v. ]DeLeon, 131 Hawai#i [463, ]479, 319

P.3d [382, ]398 [(2014)]. The defendant does not need to

show the impairment was probable nor prove that the

defendant suffered actual prejudice. Id.; Briones v. State,

74 Haw. 442, 465, 848 P.2d 966, 977 (1993). Specific

actions or omissions that are alleged to be erroneous but

that had an obvious tactical basis for benefitting the

defendant's case will not be subject to further scrutiny. 

State v. Pacheco, 96 Hawai#i 83, 93, 26 P.3d 572, 582

(2001). If, however, the alleged error or omission had no

obvious basis for benefitting the case and resulted in the

withdrawal or impairment of a potentially meritorious

defense, then the assistance of defendant's counsel was

constitutionally inadequate. State v. Smith, 68 Haw. 304,

309-11, 712 P.2d 496, 500-01 (1986).

Id. (footnote omitted); see Briones, 74 Haw. at 463, 848 P.2d at

977 ("An informed, tactical decision will rarely be

second-guessed by judicial hindsight." (citing State v. McNulty,

60 Haw. 259, 270, 588 P.2d 438, 446 (1978))); Antone, 62 Haw. at

352, 615 P.2d at 106 ("Lawyers require and are permitted broad

latitude to make on-the-spot strategic choices in the course of

trying a case."). 

Etimani first contends that his trial counsel "violated

Etimani's constitutional right to testify on his own behalf"

(capitalization altered), as follows: At trial, Etimani

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testified in his own defense and, on cross-examination, the

deputy prosecuting attorney (DPA) asked Etimani, "Can you explain

to the jurors how [the CW] got your semen inside her vagina?" 

Etimani's counsel responded, "Objection, your Honor[,]" and the

Circuit Court sustained the objection." Etimani's counsel also

moved to strike the DPA's question, and the court responded,

"Granted. It's not evidence. The jury will disregard [the

DPA's] last question." Etimani argues that his counsel's

objection to the DPA's question prevented Etimani from answering,

and his failure to answer "prejudiced the jury against him, and

made a very big difference in the jury's final decision." 

The State responds in part: "Etimani's trial counsel's

objection to the [DPA's] question appears to have been based on

the grounds that the question assumed facts not in evidence. The

DNA evidence was only that a DNA analysis of the [CW's] vaginal

swab could not exclude Etimani as the contributor of the semen." 

The record appears to support the State's contention,

and objecting to cross-examination questions on this basis is

generally a strategic decision left to trial counsel. In this

regard, we note that Etimani's opening brief violates Hawai#i

Rules of Appellate Procedure (HRAP) Rule 28(a), which states, in

relevant part: "If a brief raises ineffective assistance of

counsel as a point of error, the appellant shall serve a copy of

the brief on the attorney alleged to have been ineffective." The

record contains no indication that Etimani served his ineffective

assistance of counsel claim upon counsel whom he claims was

ineffective, as required by HRAP Rule 28(a). In any event,

Etimani has not sustained his burden of showing that his trial

counsel, by objecting to the DPA's question, made a specific

error reflecting a lack of skill, judgment, or diligence. 

Morever, Etimani fails to indicate what he would have testified

to if he had been allowed to answer. Cf. State v. Richie, 88

Hawai#i 19, 39, 960 P.2d 1227, 1247 (1998) ("Ineffective

assistance . . . claims based on the failure to obtain witnesses

must be supported by affidavits or sworn statements describing

the testimony of the proffered witnesses." (citing State v.

Fukusaku, 85 Hawai#i 462, 481, 946 P.2d 32, 51 (1997))). Thus,

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Etimani has not established that the alleged error resulted in

either the withdrawal or substantial impairment of a potentially

meritorious defense. However, because Etimani did not obtain new

counsel until after the deadlines for filing a post-verdict

motion for judgment of acquittal and motion for new trial had

passed, we affirm the Judgment without prejudice to a subsequent

Hawai#i Rules of Penal Procedure Rule 40 petition on this basis.

Etimani also contends that his trial counsel provided

ineffective assistance by allowing Amorin to be qualified as an

expert despite her allegedly limited relevant educational

background, and by failing to ensure that the jury was properly

reinstructed as to consent. Because we have concluded that the

Circuit Court did not abuse its discretion in allowing Amorin to

testify as an expert witness, and did not err in referring the

jury back to the court's original instructions (see supra),

Etimani has not sustained his burden of showing ineffective

assistance of counsel related to these two issues.

Accordingly, Etimani's asserted claims of ineffective

assistance of counsel are without merit.

For the reasons discussed above, the Judgment of

Conviction and Sentence, entered on June 25, 2020, in the Circuit

Court of the First Circuit, is affirmed. We affirm without

prejudice to a subsequent Rule 40 petition on the ground

specified in this Summary Disposition Order.

DATED: Honolulu, Hawai#i, January 26, 2022.

On the briefs:

Walter J. Rodby

for Defendant-Appellant.

Brian R. Vincent,

Deputy Prosecuting Attorney,

City & County of Honolulu,

for Plaintiff-Appellee. 

/s/ Lisa M. Ginoza

Chief Judge

/s/ Keith K. Hiraoka

Associate Judge

/s/ Clyde J. Wadsworth

Associate Judge

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