State v. Rakuita

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
18-DEC-2024
07:54 AM
Dkt. 95 MO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

STATE OF HAWAI#I, Plaintiff-Appellee,
v.
PITA RAKUITA, Defendant-Appellant

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CASE NO. 1CPC-XX-XXXXXXX)

MEMORANDUM OPINION
(By: Hiraoka, Presiding Judge, Wadsworth and Nakasone, JJ.)

Pita Rakuita appeals from the July 27, 2023 Judgment of
Conviction and Sentence entered by the Circuit Court of the First
Circuit.1 We vacate and remand for further proceedings.

BACKGROUND

A grand jury indicted Rakuita for Sexual Assault in the
Second Degree in violation of Hawaii Revised Statutes (HRS)
§ 707-731(1)(a).2 At trial, the complaining witness (CW)
testified that Rakuita was one of her "closest friends." On the

1
The Honorable Paul B.K. Wong presided.
2
HRS § 707-731 (Supp. 2018) provided:
(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[.]
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evening of February 23, 2019, CW and Rakuita were drinking with
friends after a rugby match. CW told Rakuita "he was welcome to
stay at my place, because I had an air mattress. And he said he
had to take the bus. So I thought we were (indiscernible) that
he could just stay over at my place." They went to CW's
apartment. CW testified she was asleep, then:

I felt like I was having a dream, but then I woke up,
and it was Pita laying over me, fingering me.
Q. And I'm sorry to be explicit. But can you
explain to us what you mean by, fingering you?
A. His fingers were going in and out of my vagina.
Q. And when you say "fingers," was it more than one
finger?

A. One or two, yes.

Q. And if you can be clear to us, was it one or
two, if you can recall?

A. Two.

Rakuita testified CW tried to kiss him, but he pulled
away. They were on CW's bed, and "both just fell asleep
there[.]" A "couple minutes later," he got "kicked out of her
bed." CW told him to leave. Rakuita thought it was because he
had rejected her advances. He left.
On February 26, 2019, CW called the Sex Abuse Treatment
Center, then went to Kapi#olani hospital where she made a police
report. A sexual assault forensic examination was performed by
Steven Emura, M.D. on February 28, 2019. He took two swabs from
the area outside the lips of CW's vagina, which were marked as
vulval swabs. He took four swabs of the inside of CW's vagina.
The swabs were turned over to the Honolulu Police Department
(HPD).
The State called Maria Batangan, the HPD criminalist
who analyzed CW's swabs. Relevant to this appeal, Batangan
testified that DNA testing is done "to determine if an
association could be made between a DNA profile obtained from the
item -- the questioned item of evidence that are collected from a

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crime scene or a case, to a profile obtained from a known
individual." She explained the steps:

The first step would be screening, in which I'm
looking at the forens -- the items of evidence, excuse me,
and determining if there's any samples that I can take
through for serology and DNA testing, after which I would
then perform DNA extraction. That's a way to isolate DNA or
take it out of the cell.

Once DNA extraction is complete, I can then move on to
quantification, which is the step where I can determine if
DNA is present in the sample, and if so, how much. This
step, I also utilize a wide screen.
Once quantification is completed, I can move on to
amplification, which allows us to make many copies of the
DNA at specific regions, which I can then take on through to
DNA typing, which is where I can observe the actual profile
obtained in the sample.

Batangan explained about testing the vulval and vaginal
swabs:

Q. Can you explain what testing you performed on
both?

A. I performed a DNA extraction, after which I
continued on through quantification. Again, quantification
would tell me how much DNA was present in the samples. In
this step, we also use -- utilized a wide screen. This
particularly will identify if there's male DNA within the
sample itself.

(Emphasis added.)
The deputy prosecuting attorney (DPA) asked:

Q. Let's turn specifically first for the vulval
swabs.

In terms of when you're screening for the presence of
the male DNA, what did you determine?
A. Based on the results, I determined that there
was insufficient amount of DNA to produce an interpretable
male DNA profile for the vulval swabs.

Q. And turning to the vaginal swabs, what did you
determine?
A. For the vaginal swabs, screening for the
presence of male DNA on the sample were negative.

Q. And that's the (indiscernible) male profiles
present for you to compare to a known sample?

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A. I didn't take it through to testing to be able
to obtain a profile. But based on lab protocols at the
time, because for the first sample, the vulval swabs, there
was not enough DNA to produce an interpretable male profile,
I could stop for that sample. And for the vaginal swabs,
because there was no male DNA indicated -- the sample was
negative, I also could stop.

Q. Now, can you tell us about the possible reasons
why there may be either insufficient DNA or no DNA present?
[(Defense objection overruled.)]

A. It could be a number of things. Sometimes it's
just the nature of the sample. There really isn't a male
detected. There really isn't enough --
[(Defense objection overruled.)]

So it may not be enough to be detected. There may not
be male DNA within the sample. Sometimes it's the nature of
the sample itself. For example, maybe the sample was
degraded over time. Maybe it was the circumstances --
[(Defense objection to speculation overruled, running
objection lodged.)]

(Emphasis added.)
Batangan testified on cross by the deputy public
defender (DPD):

Q. Okay. So super clear, you tested dried
secretions from the vulva?

A. Yes.

Q. You were testing for male DNA?
A. Yes.

Q. Result, negative?
A. For the vulva?
Q. Yes.

A. It was that there was an insufficient amount of
DNA to produce an interpretable male profile.

Q. Okay. Well, I'm reading your report and --
A. Uh-huh.

Q. -- it says, screening for the presence of p30
protein on sample 12 was negative; correct?
A. That's correct.
Q. So p30, negative; right?

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A. Yes.
Q. And p30 is a marker of male DNA?

A. It's not a marker of male DNA. It's just --
it's just a protein found -- that can be found in semen.

Q. Okay. So only men have semen; right?
A. Yeah.

Q. Negative; right?
A. It was negative for the --
Q. Didn't find any? That's the point.

A. For that sample, yes, the p30 proteins were --
the p30 protein was negative.
Q. The finding was negative?
A. Just to clarify, the finding for male DNA was
not enough to create an interpretable profile, so I stopped
the test at quantification.
Q. Because the p30 test was negative; right? There
was no male DNA for you to -- no p30 for you to test?

THE COURT: No, there's two tests.
[DPD]: Yeah, I know. But I'm just saying --

THE COURT: So when you ask the question, ask which
test.

Q. (BY [DPD]) Okay. Well, the point is your result
that we just talked about was negative?
THE COURT: For which test?

[DPD]: For the p30 test, Judge.

THE WITNESS: Yes, the p30 test result was negative.

(Emphasis added.)
She explained on redirect:

Q. Ms. Batangan, let's back up to the p30 test.
Again, it's a test used to detect the presence of semen; is
that right?
A. Yes.

. . . .
Q. So whether there's p30 or not is not something
that you use to say there's male DNA or not?
A. That's correct. I still, regardless of --

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regardless of the result of the p30 screening test, I still
was able to take it through to DNA extraction,
quantification.

. . . .
Q. (BY [DPA]) So if you can, now with that
context, can you explain your result for the vulval swab?
A. Yes. So the vulval swabs, again, there was not
enough male DNA detected to obtain an interpretable profile.
So even if I were to proceed with analysis and get to the
typing portion of the final stage, to obtain that profile,
it may have not been enough to be utilized for comparison
purposes.

(Emphasis added.)
Rakuita objected and moved to strike Batangan's
testimony. This exchange followed:

[DPD]: (Inaudible) she's trying to (inaudible) --

THE COURT: Which test?

[DPD]: The test she's talking about. The test of the
vulva. The result is negative.

THE COURT: No, she's saying that she didn't have
enough sample or a quantifiable amount.

[DPD]: That's what (inaudible) is finding is
(inaudible) is that it's negative.

[DPA]: (Inaudible.)
THE COURT: No, no. Hang on. Go ahead. No, no, no.
Let him go.

[DPD]: (Inaudible.)

THE COURT: So give me your page. Give me the page on
Exhibit 22.[3]

[DPD]: (Inaudible) trying to (inaudible) she's trying
to do with this witness to say that screening for the
presence of male DNA (inaudible) insufficient, and that they
(inaudible), but there's no finding of that.
THE COURT: Well, hang on. I'm -- under conclusions;
right? For dried secretions, vulva, there's two tests.
First line is screening for the presence of p30 protein,
negative. Screening for the presence of male DNA,
insufficient amount for profiling (indiscernible).

3
State's exhibit 22 was described as "Official Report by HPD
Criminalist Maria Batangan (3 pages)." It was not received in evidence and is
not part of the record on appeal.

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[DPD]: (Inaudible) that means.
THE COURT: That's what it says. That's what she's --

[DPD]: (Inaudible) means, and she's trying to --
THE COURT: Well, hang on. She can testify to the
result of her exam. If you want to cross her as to what it
means, you're allowed to do so.

[DPD]: Yeah, and she's done that five or six times
already. And I keep objecting. (Inaudible) she trying to
make up for (inaudible) there's a finding of male DNA.
THE COURT: But there's an insufficient amount of male
DNA.

[DPD]: That's how they word it, Judge.
THE COURT: You can clarify that with Ms. Batangan.
But that's what her conclusion is. That's what's written on
Exhibit 22. She can testify to that.

The jury found Rakuita guilty of the included offense
of Sexual Assault in the Fourth Degree.4 He was sentenced to one
year in prison. This appeal followed.

DISCUSSION

Rakuita contends the trial court erred by: (1) denying
his oral motion to preclude the State from arguing that male DNA
was found on swabs from the vulva of the CW; (2) letting the
State argue that male DNA was found on CW's vulval swabs; and
(3) sentencing him to the maximum term for his misdemeanor
conviction. Rakuita also contends there was prosecutorial
misconduct during closing argument.

1. The trial court did not abuse its discretion
by denying Rakuita's oral motion.

After the close of evidence, Rakuita orally moved "to

4
HRS § 707-733 (Supp. 2018) provided, in relevant part:

(1) A person commits the offense of sexual assault in the
fourth degree if:
(a) The person knowingly subjects another person,
not married to the actor, to sexual contact by
compulsion[.]

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make sure that in her closing, [the DPA] isn't going to try to
argue that DNA was found" on CW's vulval swab. The trial court
ruled:

there was an insufficient amount of DNA to produce an
interpretable male DNA profile. Not that it's negative, but
there's an insufficient amount of DNA to produce an
interpretable male DNA profile.
Based on those findings, the Court will allow Counsel
to argue what those findings mean, whether or not it's what
the expert says or what the expert didn't say. You are
allowed to argue and make the inferences that you can drawn
out from that evidence.

So with respect to precluding the State from saying
that there's DNA on the swabs, the Court respectfully
declines.

A trial judge has broad discretion to control closing
argument. State v. Nofoa, 135 Hawai#i 220, 227, 349 P.3d 327,
334 (2015). Prosecutors may draw reasonable inferences from the
evidence and are allowed wide latitude to discuss the evidence.
Id. at 228, 349 P.3d at 335. But a prosecutor may not go beyond
the record to "discuss matters outside the evidence adduced at
trial." Id. (cleaned up). The defendant's fundamental right to
confront the State's evidence may be compromised when the
prosecutor refers to a fact not presented at trial during
closing. Id.
Batangan testified that her testing of the vulval and
vaginal swabs "utilized a wide screen" that "will identify if
there's male DNA within the sample itself." For CW's vaginal
swab, "there was no male DNA indicated -- the sample was
negative[.]" She never testified that CW's vulval swabs were
negative for male DNA.5 Rather, she testified: "there was
insufficient amount of DNA to produce an interpretable male DNA
profile for the vulval swabs"; "for the first sample, the vulval
swabs, there was not enough DNA to produce an interpretable male

5
On cross-examination Batangan testified that CW's vulval swabs
were negative for p30, but explained that p30 is "not a marker of male DNA.
It's just -- it's just a protein found -- that can be found in semen."

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profile[.]" When cross-examined she again testified, "there was
an insufficient amount of DNA to produce an interpretable male
profile. . . . Just to clarify, the finding for male DNA was not
enough to create an interpretable profile[.]" On re-direct, she
explained: "So the vulval swabs, again, there was not enough
male DNA detected to obtain an interpretable profile. So even if
I were to proceed with analysis and get to the typing portion of
the final stage, to obtain that profile, it may have not been
enough to be utilized for comparison purposes."
During the bench conference when Rakuita objected to
Batangan's testimony, the defense acknowledged that Batangan's
report (Exhibit 22) stated there was an insufficient amount of
male DNA on the vulval swab for profiling. The trial court ruled
that Batangan "can testify to the result of her exam. If you
want to cross her as to what it means, you're allowed to do so."
Rakuita never asked Batangan whether she meant there was an
insufficient amount of DNA to establish a male profile as opposed
to a female profile, or whether there was male DNA present but
not enough to compare to Rakuita's DNA profile. On this record,
we conclude the trial court did not abuse its discretion by
denying Rakuita's oral motion.

2. The trial court did not err by overruling
Rakuita's objection to the State's closing
argument about male DNA and denying his
motion to strike.

Rakuita contends "[t]he trial court erred when it
allowed the State to argue that the probability of [CW]'s account
was supported by Batangan's testimony that male DNA was found on
a swab of [CW]'s vulva." During the DPA's closing argument, this
happened:

The next step of the testing was the DNA testing, et
cetera. And during the DNA testing, what Maria [Batangan]
is trying to do is isolate a DNA profile from the vulva
swabs as well as the vaginal swabs. And Maria was very
clear. For the vaginal swabs, she determined that there was
no male DNA at all on the vaginal swabs. However, Maria did
determine that there was insufficient amount of DNA --

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[DPD]: I'm going renew my objection.
[DPA]: -- to produce an interpretable --

THE COURT: Objection overruled.
Proceed.
[DPA]: However, Maria determined that there was an
insufficient amount of DNA to produce a interpretable male
DNA profile for the vulva swabs. This meant there was the
presence of male DNA --
[DPD]: Your Honor, I'm going to object to that.
[DPA]: -- but there was not --

[DPD]: I'm going to move to strike.
THE COURT: Objection overruled, pursuant to the
record we made. The motion to strike is denied.

The DPA's argument was supported by the evidence —
Batangan's testimony. The trial court acted within its
discretion by overruling Rakuita's objection and denying his
motion to strike.

3. There was prosecutorial misconduct, and it
was not harmless beyond a reasonable doubt.

After the alleged incident, CW decided to talk to
Rakuita "to give him a chance to explain." The DPA asked her:

Q. And when you elected to set up this meeting with
the defendant on February 26, 2019, at that point, did you
know what you wanted to happen?

A. No.
Q. Did you have any intent of going to the police
yet?
A. Not yet.
Q. What were you hoping to have happened?

A. For him to admit what he did.
Q. And why was that important to you?

A. I'm not sure.
. . . .

Q. Did you record this conversation?

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A. Yes.
Q. Why?

A. Just so that I would have record of the converse
-- conversation.

CW's recording of her conversation with Rakuita was
admitted into evidence and played for the jury.6 Rakuita can be
heard saying (among other things), "[CW], I can tell you this. I
never had sex with you. I never had sex with you." CW and
Rakuita were the only witnesses to what happened at CW's
apartment the early morning of February 24, 2019. The jury's
verdict would depend on whether they believed CW, or Rakuita.
During closing, the DPA argued:

And last, what else makes [CW]'s account probable?
Why did [CW] meet the defendant and make the recording? It
makes sense, and it is probable, because she knew it
couldn't hurt, in this day and age when women still aren't
believed. She knew what the reaction would be. She knew
she would be second-guessed and doubted.

Rakuita argues this was prosecutorial misconduct
because "[t]here is absolutely no evidence that was adduced at
trial, which supported the State's argument[.]" "Prosecutorial
misconduct" is a legal term of art referring to any improper
action by a prosecutor, even if harmless or unintentional. State
v. Cardona, 155 Hawai#i 23, 37, 556 P.3d 369, 383 (2024).
Prosecutors may draw reasonable inferences from the evidence and
are allowed wide latitude to discuss evidence. Nofoa, 135
Hawai#i at 228, 349 P.3d at 335. But they may not introduce new
information or evidence in closing argument. State v. Browder,
154 Hawai#i 237, 241, 549 P.3d 322, 326 (2024).
Here, CW never testified she knew that women still
aren't believed in this day and age. Or that she knew what the
reaction to her account of events would be. Or that she knew she
would be second-guessed and doubted. The State argues there was

6
Rakuita objected at trial but does not challenge admission of the
recording on appeal.

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evidence that CW's account did ultimately cause friction within
her and Rakuita's rugby club, there were negative reactions to
her account, and some of Rakuita's friends did not believe CW.
But that evidence involved events that happened after CW's
conversation with Rakuita, and could not have informed what CW
"knew" when she recorded the conversation.
The State argues the DPA "made this argument in order
to explain why [CW] made a recording of her conversation with
[Rakuita]. This was done in anticipation of the Defense
questioning her motives for doing so." But the DPA did not use
qualifiers in her argument, such as "I submit that . . ." or "you
can infer that . . .". She made statements of fact for which
there was no evidence in the record, thus introducing new
information or evidence in closing argument. That is
"forbidden." Browder, 154 Hawai#i at 241, 549 P.3d at 326. Her
argument could also have implied to the jury that she had
"special or secret knowledge" of CW's motivation for recording
the conversation. Id. (quoting Am. Bar Ass'n, Criminal Justice
Standards for the Prosecution Function, Standard 3-6.8(b) (4th
ed. 2017)). That too is misconduct.

In prosecutorial misconduct cases, once 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 defendant, a reviewing court will vacate a
conviction if there is a reasonable possibility that the
conduct might have affected the trial's outcome.
Prosecutorial misconduct warrants a new trial or the setting
aside of a guilty verdict where the actions of the
prosecutor have caused prejudice to the defendant's right to
a fair trial.

Cardona, 155 Hawai#i at 37, 556 P.3d at 383 (cleaned up).
No curative instruction was given because there was no
objection (we review for plain error). While Rakuita does not
challenge the sufficiency of the evidence, we cannot say the
evidence of Rakuita's guilt was overwhelming. The only two
eyewitnesses gave directly conflicting testimony, the forensic

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evidence was inconclusive, and the State didn't rule out any
other man touching CW's vulva during the four days between the
alleged event and Dr. Emura's forensic examination. On this
record, we conclude the prosecutorial misconduct was not harmless
beyond a reasonable doubt because there is a reasonable
possibility it affected the outcome of Rakuita's trial. Cardona,
155 Hawai#i at 40, 556 P.3d at 386.
But we also cannot say that the prosecutorial
misconduct here was so egregious that viewed under an objective
standpoint, Rakuita was denied his right to a fair trial. Thus,
"reprosecution is not barred under the double jeopardy clause."
State v. Basham, 132 Hawai#i 97, 111 n.12, 319 P.3d 1105, 1119
n.12 (2014).
We need not decide Rakuita's claim of sentencing error
because we are vacating the judgment and remanding for further
proceedings. See U.S. v. Boulware, 384 F.3d 794, 812 (9th Cir.
2004) ("Given our reversal and remand for a new trial . . . no
purpose would be served by our review of the sentencing
issues.").

CONCLUSION

The circuit court's July 27, 2023 Judgment of
Conviction and Sentence is vacated, and this case is remanded for
further proceedings consistent with this memorandum opinion.
DATED: Honolulu, Hawai#i, December 18, 2024.

On the briefs:
/s/ Keith K. Hiraoka
William H. Jameson, Jr. Presiding Judge
Deputy Public Defender,
State of Hawai#i /s/ Clyde J. Wadsworth
for Defendant-Appellant. Associate Judge

Steven S. Alm, /s/ Karen T. Nakasone
Prosecuting Attorney, Associate Judge
Robert T. Nakatsuji,
Deputy Prosecuting Attorney,
City and County of Honolulu
for Plaintiff-Appellee.

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