State v. Tuasivi, Jr.

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
30-APR-2021
08:03 AM
Dkt. 74 SO

NO. CAAP-XX-XXXXXXX

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-XX-XXXXXXX)

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.
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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: /s/ Lisa M. Ginoza
Chief Judge
Taryn R. Tomasa,
Deputy Public Defender, /s/ Katherine G. Leonard
for Defendant-Appellant Associate Judge

Stephen K. Tsushima, /s/ Keith K. Hiraoka
Deputy Prosecuting Attorney, Associate Judge
for Plaintiff-Appellee

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