Opinion
SCWC-14-0001300
05-15-2020
STATE of Hawai‘i, Respondent/Plaintiff-Appellee, v. John Leslie GALLAGHER, Petitioner/Defendant-Appellant.
Cynthia A. Kagiwada, for petitioner Peter A. Hanano, for respondent
Cynthia A. Kagiwada, for petitioner
Peter A. Hanano, for respondent
McKENNA, POLLACK, AND WILSON, JJ., WITH RECKTENWALD, C.J., DISSENTING, AND WITH NAKAYAMA, J., DISSENTING
OPINION OF THE COURT BY POLLACK, J.
Under Hawai‘i Rules of Evidence Rule 403, relevant evidence may be excluded if its probative value is, inter alia, substantially outweighed by the danger of unfair prejudice. In this case, the defendant was charged with criminal property damage in the second degree for damaging the complainants' vehicle. Over the defense's objections, the circuit court allowed the State to present evidence during trial of four prior incidents of aggressive and erratic behavior by the defendant directed at the complaining witnesses and their home. The circuit court also permitted the State to adduce evidence of the fear the complaining witnesses experienced as a result of the prior incidents and the various countermeasures they undertook in response to these incidents. The defendant was convicted as charged, and the conviction was affirmed on appeal.
On review, we conclude that the risk of unfair prejudice posed by the introduction of the four prior incidents substantially outweighed their limited probative value. We therefore vacate the Intermediate Court of Appeals' judgment on appeal and the circuit court's judgment of conviction and sentence, and the case is remanded to the circuit court for further proceedings consistent with this opinion. I. BACKGROUND & TRIAL
On December 30, 2013, John Leslie Gallagher was charged in the Circuit Court of the Second Circuit (circuit court) with criminal property damage in the second degree in violation of Hawai‘i Revised Statutes (HRS) § 708-821(1)(b) (Supp. 2012) based on an incident that occurred on September 15, 2013. Gallagher pleaded not guilty to the charge.
HRS § 708-821(1)(b) provides in relevant part as follows: "A person commits the offense of criminal property damage in the second degree if by means other than fire: .... The person intentionally or knowingly damages the property of another, without the other's consent, in an amount exceeding $1,500[.]"
Prior to trial, Gallagher moved for "an order excluding from use at trial testimonial or documentary evidence relating to any other ‘acts’, bad or otherwise" involving him as irrelevant and unfairly prejudicial under Hawai‘i Rules of Evidence (HRE) Rules 404 and 403. Specifically, Gallagher sought to preclude "any testimonial or documentary evidence regarding alleged incidents" on four specified dates between May and September 2013 involving the two complaining witnesses or other persons.
Thereafter, the State filed two notices of intent pursuant to HRE Rules 404(b) and 608(b) stating it would rely on evidence of four prior incidents of "Harassment," one incident of "Harassment By Stalking," and one incident of "Harassment By Stalking, Simple Trespass, Criminal Tampering and Disorderly Conduct" that occurred between March 24 and September 19, 2013. The State contended evidence of the prior incidents was relevant and admissible to demonstrate Gallagher's "motive, opportunity, intent, preparation, plan, knowledge, identity, modus operandi, and/or absence of mistake or accident[,] as well as attacking his credibility as probative of untruthfulness."
The notices collectively indicated that the State intended to rely upon six incidents, including one that occurred several days after the events giving rise to the case. During the hearing on the motions in limine, however, the State informed the court that it did not intend to introduce any evidence of the last incident at trial. Ultimately, the State elicited testimony regarding four of the prior incidents.
At a hearing on the pretrial motions, the State contended the sole issue at trial was going to be Gallagher's state of mind and his intent to cause the amount of damage to the complainants' vehicle that resulted from his actions on the night in question. The State asserted that evidence of the five prior incidents would show the conduct underlying the charged offense was not an isolated event, accident, or mistake and that the prior incidents culminated in the incident that resulted in the criminal property damage charge. The court asked the State to elaborate, and the State responded as follows:
The Honorable Joseph E. Cardoza presided over the circuit court proceedings in this case.
[B]asically what happened over the course of about six or seven months, this individual, from out of the blue, just started appearing at our complaining witness's house, essentially taking them to the point where they had to get a protective order against him, installed a video surveillance system on their house, basically because he had come around so many times threatening them ....
According to the State, it was important for the jury to hear about the prior incidents to understand Gallagher's state of mind when he damaged the complainants' vehicle.
In addition to his written motions in limine, Gallagher orally objected to the introduction of the prior incidents stated in the State's notices of intent, arguing that they were not relevant and were more prejudicial than probative because there would be no question as to his identity or whether his actions were the result of an accident or mistake. Evidence of the prior incidents, Gallagher maintained, did not go to the elements that the State needed to prove or to any defenses, and it did not fall within an exception to the rule against character evidence. Additionally, Gallagher argued that the prior incidents were dissimilar to the charged offense because they did not involve property damage. At the conclusion of the hearing, the circuit court denied the defense's motion to exclude the incidents, holding without any elaboration that the five prior incidents fell within the exceptions to HRE Rule 404(b). The court did not exclude any evidence regarding the prior incidents. The only matters excluded were opinions expressed by a complaining witness to the police regarding Gallagher's mental instability and statements that Gallagher had made that raised concerns about his mental health, both of which the State had no objection to excluding.
A jury trial commenced in August 2014. In its opening statement, the State informed the jury that the evidence would show that on September 15, 2013, Gallagher charged up the complainants' driveway and kicked their vehicle multiple times on the passenger's side and then on the driver's side. The State related that the jury would hear and see that Gallagher's kicks left numerous dents on the complainants' vehicle. The State indicated that the jury was "probably going to hear the defense agree with pretty much 99 percent of what I just told you."
The State also told the jury that the night of the incident was not the first time the complainants had seen Gallagher. The defense's objection to this statement was overruled. The State proceeded to inform the jury that Gallagher had become an issue in the complainants' lives over the course of the six months preceding the incident, requiring the complainants to call the police numerous times, file numerous police reports, tint the windows of their home, and install an alarm system and a video surveillance system because of their fear. The prosecutor then told the jury that the Normans had actually sought a protective order against Gallagher. Defense counsel's objection to this statement was sustained, and the statement was stricken.
In the defense's opening statement, counsel stated that it was not disputed that Gallagher went to the complainants' residence on September 15, 2013, and kicked their vehicle. Defense counsel told the jury that the only issue in dispute was the amount of damage that Gallagher intended to cause. The defense submitted that the evidence would show that Gallagher did not intend to cause more than $1,500 in damage and that he was not aware and did not believe that he would damage the vehicle to that extent.
Following opening statements, the State presented the testimony of one of the complainants, Jessica Norman (Ms. Norman). Ms. Norman testified that Gallagher first came into her life on March 24, 2013, which prompted Gallagher to renew his objection on HRE Rules 404(b) and 403 grounds. A bench conference ensued, and Gallagher argued that even if the prior incidents were relevant, the court was required to determine whether the probative value of the evidence was substantially outweighed by the danger of unfair prejudice. Gallagher maintained that identification was not at issue in the case, the prior incidents did not relate to Gallagher's state of mind as to knowing the amount of the damages, the prior incidents involved different facts, their introduction would confuse the issues and mislead the jury, and there was other evidence regarding the damages.
[DEFENSE COUNSEL]: Judge, I would just object. I know this issue was raised at motions in limine, but I would just make an objection under 404(b). Your Honor, even assuming that these prior incidents are relevant, I believe the Court still has to determine whether there's unfair prejudice to my client and ... whether the need for it substantially outweighs any danger of unfair prejudice.
I would submit, you know, in this case, identification is not an issue. The prior incidents do not go to state of mind as far as knowing the amount of the damage. The facts are different, and ... it would confuse the issue, mislead the jury.
And ... there's other evidence that can go towards the damages[.]
Gallagher indicated that he would like to register a running objection under HRE Rule 404(b) regarding any prior incidents. In response, the State contended that the "escalating series of events" were "highly probative" of Gallagher's mindset and his intent on the night of the incident.
The court overruled Gallagher's objections. The court reasoned that without evidence of the prior incidents, there was no context or explanation for the charged conduct because the parties were not otherwise acquaintances. Further, stated the court, the prior incidents were highly probative of Gallagher's intent to cause the kind of damage that occurred, and in any event the State had the burden of proving each element of the offense beyond a reasonable doubt regardless of whether some of them were conceded in the defense's opening statement. The court concluded that based on these reasons and the "entire 401, 403, 404 analysis" it would allow in the evidence of the prior incidents. The court did not indicate that it would not allow defense counsel's request for a continuing objection.
Following the bench conference, the circuit court issued a cautionary instruction to the jury regarding the evidence of the prior incidents. The court instructed the jury that the evidence could be considered only on the issue of the defendant's motive, opportunity, intent, preparation, or plan to commit the charged offense, and as to the identity of the person who may have committed the charged offense. The court further instructed the jury not to consider the evidence for any other purpose or to conclude that the defendant was a person of bad character and therefore must have committed the charged offense.
Ms. Norman then testified in detail about four of her prior interactions with Gallagher. Ms. Norman described her first encounter with Gallagher on March 24, 2013, when she saw him walking toward her home. When she opened the front door and asked if he needed help with anything, Gallagher started screaming at her, saying: "You're not going to have your job by next week. You hear me. You're not going to have your job." Ms. Norman testified that she immediately closed the door, explaining that she was "incredibly confused and scared," and that she thereafter filed a police report.
Ms. Norman then described an incident that occurred on May 9, 2013, testifying that she looked out her window after she heard yelling from the street. She witnessed Gallagher in a confrontation with one of her neighbors, and when Gallagher saw her through the window, he started screaming obscenities at her and ran toward the house. Ms. Norman explained that she called the police, but Gallagher was gone by the time they showed up.
Ms. Norman testified that she next saw Gallagher when she was again looking out her window on August 16, 2013. She stated that Gallagher was parked in his car in front of her driveway, and she witnessed him shake his fist at the house and give it "the finger" before speeding off.
Ms. Norman lastly recounted an incident that took place on September 4, 2013. She again saw Gallagher parked blocking her driveway, and this time she witnessed him make erratic movements as if he were going to ram his vehicle into the cars parked on the property. Gallagher again sped off, Ms. Norman testified, and he was gone by the time she called the police.
Ms. Norman stated that, in total, she filed six police reports against Gallagher from March 24 through September 15, 2013. These prior incidents terrified her because Gallagher appeared to show up more frequently and become more aggressive as time progressed. Ms. Norman testified that she did not know what Gallagher was capable of, and that she and her husband were scared for their lives. As a result of Gallagher's conduct, they tinted the windows on the ground floor of their home and installed an alarm system and a surveillance system with seven different cameras around the house.
As to the incident underlying the charge, Ms. Norman testified that on September 15, 2013, she went out on her lanai after she heard a car nearby and her dog began to bark. She saw Gallagher running at full speed toward the house screaming obscenities at her. He then started "wailing on the car," kicking and punching it approximately fourteen to sixteen times. Ms. Norman described the dents in the car as "massive," about four or five inches deep, and stated that Gallagher's kicks and punches were so loud that she thought he was using a baseball bat. Gallagher had also knocked the top of the back of the truck bed using his fist. Ms. Norman explained that, after he finished striking the car, Gallagher walked away, "flipped the house the bird," and then got in his car and left. During Ms. Norman's testimony, two CDs containing video surveillance footage of the incident were admitted into evidence and published to the jury; Ms. Norman provided a narration of the events shown in the footage while the video was played for the jury. The State then called as a witness Garron Norman (Mr. Norman), Ms. Norman's husband, who testified that he came to know Gallagher "[f]rom a series of escalating events that were taking place at [their] residence." Because of these events that were happening throughout the summer and early spring, he and Ms. Norman were in a heightened state of alert on September 15, 2013. Mr. Norman recounted the events of that evening, which coincided with the testimony that had been given by Ms. Norman.
Mr. Norman testified that after the incident, he saw multiple dents all along the front quarter panels to the rear of the vehicle around the tailgate and up the driver's side of the vehicle. A series of photographs were admitted into evidence depicting the damage to the pickup, and Mr. Norman pointed out and described the dents, relating that there were probably about seven to eight "significant dents," approximately two to four inches deep, that were caused by Gallagher.
Gordon Yoshizawa, the owner of an auto repair shop, testified that he personally inspected the Normans' vehicle the day after the incident and estimated the cost of repairs to be $4,583.04. Additionally, Matthew Little, an automotive damage specialist for the Normans' insurance company, testified that based upon his inspection the estimated repair cost for the damage done to the vehicle was $3,036.26.
Mr. Norman stated that the Normans received an insurance payment of $2,536.26 for the damage, which reflected a $500 deductible.
After the State rested, Gallagher testified that in the early evening of September 15, 2013, he was at the house of a friend who lived next door to the Normans. He walked to the Normans' house, lost his composure, kicked the passenger side of the Normans' truck three times, and then kicked between the rear wheel and the door on the other side of the truck a few times. According to Gallagher, he was 5 feet 9 inches tall, weighed 160 pounds, and wore a pair of cross-trainers on the night of the incident. He stated he used the inside of his foot and described the kicks as "more like a soccer kick." He said that the incident lasted for a total of ten seconds and that he only "put a couple scuff marks on the truck." Gallagher testified that he had a degree in automotive technology, the damage he caused amounted to only about $300 or $400, and a "detail job to buff it out" or a "wax job" would have taken care of the damage to the vehicle. Gallagher further stated that he did not intend to do extensive damage and disputed that his kicks left dents in the truck that amounted to $1,500 worth of damage.
During the reading of the jury instructions, the circuit court provided a general instruction on the use of evidence admitted for a limited purpose. The court then instructed the jury that the evidence of Gallagher's prior crimes or bad acts was to be considered only on the issue of his motive, opportunity, intent, preparation, or identity and not to conclude that he was a person of bad character and therefore must have committed the charged offense.
The court also instructed the jury on the elements of the included offenses of criminal property damage in the third and fourth degrees.
In its closing argument, the State indicated that the case boiled down to whether Gallagher intentionally or knowingly caused $1,500 worth of damage to the Normans' vehicle. The State argued that the evidence against Gallagher, including the prior acts Gallagher committed, was "very overwhelming." The evidence of the prior incidents, the State explained, was presented to show Gallagher's intent and the Normans' perception of Gallagher's state of mind. The State asserted that what occurred was not an isolated incident but instead was an escalating series of events that took place over six months. The jury was reminded by the State that it had heard from the Normans about the number of times Gallagher came into their lives, and from the Normans' perspective he was becoming more dangerous each time he showed up. The State highlighted the several countermeasures the Normans had taken such as installing a surveillance system and an alarm system and tinting the windows of their house. This was not an isolated incident, the State reiterated, and Gallagher was demonstrating increasing levels of anger and hostility. Gallagher intended to do as much damage as he physically could on the night in question, the State argued, and his actions were "premeditated," "cold," and "calculated."
Defense counsel argued in closing argument that the only disputed issue in the case concerned Gallagher's intent regarding the amount of the damage he caused to the Normans' truck. While Gallagher admitted to kicking the Normans' vehicle, counsel maintained, it was not enough that Gallagher kicked the vehicle. The State also had to prove beyond a reasonable doubt that Gallagher acted with the intent or knowledge that he would cause over $1,500 in damage. Counsel argued that the truck already had scratches and dents and that Gallagher could not have intended to cause over $1,500 worth of damage, adding that the damage he did cause was only cosmetic in nature.
The jury convicted Gallagher as charged. Gallagher was sentenced to a five-year term of imprisonment consecutive to a term he was currently serving. Gallagher appealed from the circuit court's October 31, 2014 judgment of conviction and sentence.
II. ICA PROCEEDINGS
On appeal, Gallagher asserted that the evidence of the four prior incidents of his misconduct introduced at trial was irrelevant and far more prejudicial than probative. Gallagher contended that the circuit court's reasoning that the prior incidents would provide context was not one of the exceptions for introducing character evidence and that the evidence of the prior incidents was not relevant to any disputed issue. Gallagher submitted that the video footage and his own testimony eliminated any dispute as to his general intent to damage the property and there was no question as to identity, motive, opportunity, intent, plan, or preparation.
Gallagher raised other issues to the ICA, but these issues are not raised on certiorari review. They are therefore not addressed.
Additionally, Gallagher argued that the potential for unfair prejudice from the admission of the prior incidents substantially outweighed any limited probative value they may have had. Gallagher contended that the need for such evidence was minimal because the State presented the testimony of the two complaining witnesses, photographs of the damage to the vehicle, and video footage that showed the incident from beginning to end. The evidence of the prior incidents "probably roused the jury to hostility" against him and most likely elicited sympathy for the Normans based on their prior experiences with him, Gallagher asserted, and thus such evidence was highly prejudicial.
The State responded that evidence of the prior incidents was relevant under HRE Rule 401 to provide context for the incident underlying the charge, which made it more probable that Gallagher intentionally or knowingly caused more than $1,500 worth of damage to the Normans' vehicle. The State submitted that the evidence was also properly admitted under HRE Rule 404(b) to prove that Gallagher intended to cause the amount of damage required for criminal property damage in the second degree and that his conduct was not an accident or mistake. And, the State asserted that the evidence of the prior incidents was admissible under the relevant factors of HRE Rule 403, including that there was a substantial need for the evidence, there was no alternative means of showing context, and the evidence was not likely to rouse the jury to hostility against Gallagher.
On December 20, 2017, the ICA issued a summary disposition order. Citing HRE Rule 401, the ICA determined that Gallagher was incorrect to assume that evidence is only relevant to prove matters in dispute. The State has the burden to prove beyond a reasonable doubt each element of the offense, the ICA stated, and Gallagher did not offer a stipulation as to any of the elements of the charged offense. In any event, the ICA added, Gallagher's intent was in dispute. Based on its review of the record, which included the giving of limiting instructions to the jury regarding the evidence of the prior incidents, the ICA concluded that the circuit court did not abuse its discretion in admitting such evidence.
The ICA's summary disposition order can be found at State v. Gallagher, No. CAAP-14-0001300, 2017 WL 6507180 (App. Dec. 20, 2017) (SDO).
Gallagher challenges the ICA's holding on certiorari review, arguing that the unfair prejudice caused by the introduction of the four prior incidents substantially outweighed its minimal probative value and had a tendency to suggest a decision based on an improper basis.
III. STANDARDS OF REVIEW
"[A] trial court's balancing of the probative value of prior bad act evidence against the prejudicial effect of such evidence under HRE Rule 403 (1993) is reviewed for abuse of discretion." State v. Cordeiro, 99 Hawai‘i 390, 404, 56 P.3d 692, 706 (2002) (quoting State v. Torres, 85 Hawai‘i 417, 421, 945 P.2d 849, 853 (App. 1997) ). When such an abuse of discretion is identified, it is grounds to vacate a conviction unless it is harmless beyond a reasonable doubt. State v. Kazanas, 138 Hawai‘i 23, 43, 375 P.3d 1261, 1281 (2016).
IV. DISCUSSION
A. The Circuit Court Abused Its Discretion in Its Application of HRE Rule 403.
Over strong objections by the defense, the circuit court allowed the admission of four prior incidents that involved aggressive, obscenity-laden, and angry misconduct by Gallagher toward the Normans. The State and its witnesses repeatedly characterized the conduct as escalating. The testimony included the specific details of each incident in which Gallagher had harassed the family. Ms. Norman testified that Gallagher's actions during the previous incidents terrified her and prompted the family to take a range of protective countermeasures, including filing six different police reports, tinting the windows in the garage and on the ground floor of their home, and installing an alarm and surveillance system.
Under HRE Rule 403, 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." In weighing the probative value versus the prejudicial effect of prior bad acts admitted for one of the purposes authorized under HRE Rule 404(b) (Supp. 2012), we have stated that a number of factors must be considered, including
HRE Rule 404(b) provides as follows:
(b) Other crimes, wrongs, or acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible where such evidence is probative of another fact that is of consequence to the determination of the action, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, modus operandi, or absence of mistake or accident. In criminal cases, the proponent of evidence to be offered under this subsection shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the date, location, and general nature of any such evidence it intends to introduce at trial.
the strength of the evidence as to the commission of the other crime, the similarities between the crimes, the interval of time that has elapsed between the crimes, the need for the evidence, the efficacy of alternative proof, and the degree to which the evidence probably will rouse the jury to overmastering hostility.
State v. Behrendt, 124 Hawai‘i 90, 106, 237 P.3d 1156, 1172 (2010) (quoting State v. Renon, 73 Haw. 23, 38, 828 P.2d 1266, 1273 (1992) ).
While these factors provide guidance as to the elements to consider, the court's underlying HRE Rule 403 evaluation remains whether the probative value of the evidence of prior acts is substantially outweighed by its potential for unfair prejudice. Each factor must therefore be considered in light of the purpose for which the evidence was offered—here, to prove Gallagher's state of mind with respect to the extent of the damage caused to the Normans' vehicle.
As to the first factor, the strength of the evidence as to the commission of the other conduct, Ms. Norman testified that she witnessed firsthand Gallagher's behavior on the prior occasions, and Mr. Norman confirmed that there had been a "series of escalating events" involving Gallagher. Because Gallagher does not deny that the prior incidents occurred and submitted no contrary evidence, the first factor does not weigh against admittance.
With regard to the second and third factors—the similarities and interval of time between the crimes—Gallagher acknowledges the time that elapsed between the prior incidents and the one underlying the criminal charge in this case was arguably not long. But he argues that the prior incidents were not similar to the underlying incident, as they did not involve property damage.
Here, Gallagher's identity, actions, and general intent to do damage were not disputed. The prior incidents were therefore relevant only to demonstrate the degree of Gallagher's hostility toward the Normans and thereby increase the likelihood that he intended to do significant damage to their property. However, the closeness in time and alleged similarity between the prior acts and the incident giving rise to this case is at most only marginally probative of this point.
Justice Nakayama's dissent argues that "every element of the charged offense was ‘at issue’ for the purposes of" admitting the evidence of prior incidents under HRE Rules 404(b) and 403. Nakayama, J., Dissenting at 146 Hawai'i at 490, 463 P.3d at 1147 [hereinafter Dissent]. While it is true that the State must prove all elements of an offense, other bad acts are not admissible to prove an element when the element is not disputed in the evidence in the case. See, e.g., State v. Calara, 132 Hawai‘i 391, 402-04, 322 P.3d 931, 942-44 (2014) (holding that two prior incidents of misconduct should have been excluded under HRE Rule 404(b) because intent and lack of consent were not disputed); State v. Veikoso, 126 Hawai‘i 267, 276-77, 270 P.3d 997, 1006-07 (2011) (concluding that evidence involving another complaining witness would not be admissible to prove identity because identity was not disputed); State v. Castro, 69 Haw. 633, 645, 756 P.2d 1033, 1042 (1988) (holding that, when "the identity of the perpetrator of the crimes was not denied, [ ] the admission of the other crimes evidence as proof of modus operandi," including plan and preparation, "cannot be justified"). Here, the element of identity and Gallagher's conduct were not only conceded by the defense in its opening statement and acknowledged by the State's opening statement, but the evidence of the conduct was recorded in a video and testified to by two eyewitnesses.
The dissent's contention that an unstipulated element "like identity" in this case renders the element in dispute for purposes of HRE Rule 404(b) analysis, Dissent at 146 Hawai'i at 491 n.5, 463 P.3d at 1148 n.5, is contrary to both our caselaw, Calara, 132 Hawai‘i at 402-04, 322 P.3d at 942-44 ; Veikoso, 126 Hawai‘i at 276-77, 270 P.3d at 1006-07 ; Castro, 69 Haw. at 645, 756 P.2d at 1042, and to Professor Addison Bowman's evidence treatise, which we have cited for guidance in this area. Calara, 132 Hawai‘i at 403, 322 P.3d at 943. As stated by Professor Bowman, "Assessment of the dispute factor thus requires consideration of the precise defensive claims being made in the case." Addison M. Bowman, Hawaii Rules of Evidence Manual § 404-3[3][E], at 4-62 (2018-2019 ed.). Here, Gallagher did not dispute he was the person causing the property damage and, in fact, admitted that he was.
Nevertheless, the dissent maintains that the prosecutor cannot know what a defendant will say, and Gallagher may have taken the stand and denied being the person who kicked the car. Dissent at 146 Hawai'i at 491 n.5, 463 P.3d at 1148 n.5. This type of justification would lead to the wholesale admission of propensity evidence. As Professor Bowman has aptly observed:
Identity is always a "fact of consequence" in a criminal case because it characterizes the elemental proposition that the accused (not someone else) committed the crime. That being so, a proponent's assertion that evidence of another crime proves identity is not meaningful unless accompanied by some other theory that heightens probative value and takes the matter beyond mere propensity. This is because the direct inferential link between prior crime and identity, without an intermediate inference such as motive, plan, or signature, can only be understood in terms of "action in conformity therewith" on the present occasion. In other words, "identity," without more, is likely propensity in sheep's clothing.
Bowman, supra, § 404–3[2][F], at 4-55.
Ms. Norman testified that the prior incidents occurred at her residence over a six-month period starting on March 24, 2013, with the final incident occurring eleven days before the incident in this case. She further stated that the incidents involved Gallagher yelling obscenities at her, gesturing angrily toward her and her house, and making erratic movements using his car. The incidents shared some similarities in that they all occurred at the Normans' residence and involved hostile actions by Gallagher towards the Normans, but none of the prior incidents involved destruction of property. By contrast, the underlying incident in this case involved Gallagher causing property damage to the Normans' vehicle. Accordingly, the prior incidents, having not involved physical damage, had no relation to Gallagher's awareness or knowledge of the extent of damage his actions would cause in the underlying incident, and they were therefore not probative of this issue. Further, when prior misconduct is similar to the current offense and is offered to confirm identity or voluntariness by establishing a common methodology or scheme, a close connection in time and nature is highly probative only because it increases the likelihood that the same actor committed both instances of misconduct. See, e.g., State v. Acker, 133 Hawai‘i 253, 277, 327 P.3d 931, 955 (2014) (stating that prior incidents where defendants also robbed lone men, left them at remote locations, and escaped in their victims' vehicles were admissible to show common plan and lack of coercion); State v. Austin, 70 Haw. 300, 307, 769 P.2d 1098, 1102 (1989) (holding that the similarity between a defendant's earlier drug dealing and the drug dealing offense with which the defendant was charged was extremely relevant to prove both a plan and a common scheme). However, a close proximity in time and nature between the prior misconduct and the charged offense may also increase the likelihood that a jury will consider the previous conduct to conclude that the defendant has a propensity for committing such acts, which is a prohibited inference. See HRE Rule 404(b) ("Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith."); State v. Murray, 116 Hawai‘i 3, 20, 169 P.3d 955, 972 (2007) (holding that "the risk of tainting the jury verdict with evidence of prior [misconduct] is of especial concern when the current charge is for the same crime of which the defendant was previously" implicated).
The state of mind requirement for criminal property damage may alternately be established by demonstrating that Gallagher had knowledge or awareness that his actions would cause damage in excess of $1,500. See HRS § 708-821(1)(b).
Thus, when the evidence is not offered for a purpose for which similarity in time and nature is probative, a close unity between the acts potentially weighs against admitting the evidence when it increases the chances of unfair prejudice. See State v. Castro, 69 Haw. 633, 645, 756 P.2d 1033, 1042 (1988) (holding that because "the identity of the perpetrator of the crimes was not denied, [ ] the admission of the other crimes evidence as proof of modus operandi cannot be justified"). In this case, similarity as to location of all the prior incidents and as involving the same complainants, and the closeness in time of the prior incidents to the underlying offense, exacerbated the unfair prejudice as it increased the likelihood that the jury would conclude that Gallagher had a propensity for committing such acts while adding virtually no probative value as to the issue of Gallagher's intent to cause the amount of damage caused. Accordingly, because of the lack of probative value of the prior misconduct evidence and its accompanying risk of unfair prejudice, these factors—similarities of crimes and interval of time between them—do not weigh in favor of admission of the prior acts of misconduct.
The final three factors in our evaluation concern the need for the evidence and, relatedly, the availability of alternative evidence on the same point, as well as the likelihood that the evidence will inspire ill-will in the jury toward the defendant. Castro, 69 Haw. at 644, 756 P.2d at 1041.
As discussed, the only disputed issue at trial to which the prior incidents were relevant was the extent of the damage Gallagher intended to cause or of his awareness of causing such damage. The occurrence of the prior incidents and their escalating nature were only marginally probative insofar as they demonstrated the extent of Gallagher's ongoing hostility toward the Normans and his general intention to cause damage to their property during the underlying incident. However, extensive surrounding details of the incidents had no bearing on this issue. Ms. Norman's testimony included a range of highly prejudicial information that was lacking in probative value as to Gallagher's state of mind, including the Normans' repeated calling of police regarding the incidents; their filing of six police reports involving harassment; the numerous protective measures installed in their home, including the tinting of windows and the installation of a surveillance system with seven video cameras and an alarm system; and—perhaps most prejudicial—the recounting of the Normans' ongoing fear of Gallagher and Ms. Norman's statement that the prior incidents terrorized her.
The circuit court concluded that "practically speaking, there aren't any other means or alternatives that would permit the explanation or background to what was going on, on the evening in question." However, even assuming that there was minimal probative value in admission of the prior misconduct, the State could have elicited a much less elaborate recounting of the prior incidents, greatly limiting testimony to the aspects of the incidents that ostensibly bore on Gallagher's state of mind. Mr. Norman, for example, testified that he came to know Gallagher "[f]rom a series of escalating events that were taking place at our residence." This testimony essentially encapsulated the relevant aspects of the previous incidents in that it demonstrated that Gallagher had repeated, escalating, hostile interactions with the Normans.
It is noted that the explanation concerning the prior interactions between the Normans and Gallagher did not require specific wording. The incidents could have been characterized by the prosecutor's questions as unwanted encounters, unprompted altercations, or any number of other terms. Regardless of the phrasing, testimony significantly more narrow could have been elicited to capture the contended relevance of the prior incidents while carrying none of the unfair prejudice that arose from the specific descriptions of Gallagher's behavior and the fear and countermeasures described by the Normans.
The dissenting opinion of Justice Nakayama notes the obvious proposition that "neither the trial court nor the appellate court should dictate the exact wording of a complaining witness's testimony or reframe how the State presents its case." Dissent at 146 Hawai'i at 493 n.7, 463 P.3d at 1150 n.7. However, as the dissent acknowledges, "it is the trial court's duty to exclude unduly prejudicial testimony[.]" Id. Thus, in comporting with the court's mandate, the prosecutor should have elicited the evidence in a manner that would not have resulted in the admission of unduly prejudicial evidence. We recently observed in State v. Williams, a case in which the trial court had excluded evidence of the involvement of Child Welfare Services (CWS), that when the State chose to call a detective and social worker to testify, "the State should have been careful not to elicit evidence" regarding involvement of CWS and "should not have asked [the doctor] whether she had alerted authorities to elicit her response that [CWS] had been contacted." 146 Hawai‘i 62, 73, 456 P.3d 135, 146 (2020) ; cf. State v. Miyasaki, 62 Haw. 269, 284 n.15, 614 P.2d 915, 924 n.15 (1980) ("The prosecutor is obviously in a position to tailor his questions, consciously or otherwise, on the basis of his knowledge of the defendant's prior testimony and can do so without any overt reference to the testimony given under immunity."); Am. Bar Ass'n, Criminal Justice Standards for the Prosecution Function § 3-6.6(d) (4th ed. 2017) ("The prosecutor should not bring to the attention of the trier of fact matters that the prosecutor knows to be inadmissible, whether by offering or displaying inadmissible evidence, asking legally objectionable questions, or making impermissible comments or arguments.").
Further, again assuming some probativeness of the prior misconduct, the number of prior incidents should have been limited to the minimum sufficient to obtain the asserted probative value the conduct offered. Instead, four prior incidents were admitted, despite the lack of probative value of the multiple instances of prior misconduct. See State v. Kazanas, 138 Hawai‘i 23, 43, 375 P.3d 1261, 1281 (2016) (holding it was an abuse of discretion to admit evidence of past abuse of household member when "[a]lternative evidence of [a prior] assault incident, which the State was allowed to present, was more efficacious on the issue" and the evidence likely "rouse[d] the jury to overmastering hostility against" the defendant). As our decision in Kazanas recognizes, when there is a demonstrable need to introduce evidence of prior bad acts, admission of such evidence is limited and circumscribed by that necessity. 138 Hawai‘i at 43, 375 P.3d at 1281.
In this case, any need to provide context as to Gallagher's intent did not make it necessary to introduce evidence of the details of each of the four prior incidents, the Normans' extreme fear, or the extensive countermeasures taken. Nor was the admission of such evidence needed to establish that the charged incident was not a "random" event or to show intent as to the monetary amount of the damage caused, as the dissenting opinions maintain. See Dissent at 146 Hawai'i at 492-93, 494, 463 P.3d at 1149–50, 1151; Recktenwald, C.J., Dissenting at 146 Hawai'i at 482-83, 463 P.3d at 1139–40 [hereinafter C.J. Dissent].
The dissenting opinions also argue that the need for the evidence demonstrates the probative value of the prior incidents because it was the only evidence available to show Gallagher's intent to seriously damage the vehicle. Dissent at 146 Hawai'i at 494, 463 P.3d at 1151; C.J. Dissent at 146 Hawai'i at 482, 463 P.3d at 1139. The evidence at trial refutes this contention. Ms. Norman testified at trial that Gallagher hit the car approximately fourteen to sixteen times, described the dents in the car as "massive," and stated Gallagher's kicks and punches were so loud she thought he was using a baseball bat. Also presented were Mr. Norman's observations of the damage, video evidence showing Gallagher as he caused the damage with an accompanying narrative by Ms. Norman, photographs depicting the damage, and the testimonies of Yoshizawa and Little, who assessed the value of the damage to the truck. All of this evidence was not only used to show Gallagher's intent, but it was significantly more probative of his intent on the night he caused the damage than Ms. Norman's observations of Gallagher's prior conduct in the preceding weeks and months that did not involve property damage.
Professor Bowman has aptly observed in his evidence treatise that the intent inferences of HRE Rule 404(b) require critical examination:
Because mens rea is an element of the prosecution's case-in-chief in most criminal cases, the intent inferences of rule 404(b) require analytical rigor. ...
Analytical rigor is required because nearly all crimes contain a mens rea element and the intent inference, arguably applicable whenever the prior crime is of the same type, could easily swallow the character exclusion. The key to analysis of criminal intent is a careful application of the need factor[.]
Bowman, supra, § 404-3[2][G], at 4-56 (emphases added).
Justice Nakayama's dissent argues that the extensive evidence in this case was ineffective to show Gallagher's intent because he denied kicking the vehicle hard or many times and intending to cause more than $1,500 worth of damage. Dissent at146 Hawai'i at 494, 463 P.3d at 1151. To reach this conclusion, the dissent summarily discounts the Normans' eyewitness testimony of Gallagher's actions during the incident, their subsequent observation of the damage to the vehicle, the video recording of the incident introduced into evidence and observed by the jury, and the testimony of the State's two expert witnesses as to the damage. If the alternative evidence in this case was held to be insufficient to address the purported need to show an intent inference, then the effect of such a precedent would be to "swallow the character exclusion." Bowman, supra, § 404-3[2][G], at 4-56.
Thus, the evidence adduced at trial in this case demonstrates there was little need, and even less probativeness, for the detailed testimony about each of the prior incidents, the safety measures taken by the Normans, and the fearful reactions by the Normans to Gallagher's conduct because alternative methods of proof were equally efficacious and less unfairly prejudicial. These factors, the need for the evidence and the availability of alternative evidence on the same point thus weigh strongly against the testimony's admissibility.
As to the final HRE Rule 403 factor, the likelihood that the evidence will inspire ill-will in the jury toward the defendant, the number of prior incidents and the involved circumstances had a high potential to "rouse the jury to overmastering hostility" against Gallagher. Behrendt, 124 Hawai‘i at 106, 237 P.3d at 1172 (quoting Renon, 73 Haw. at 38, 828 P.2d at 1273 ). The jury heard detailed testimony from Ms. Norman regarding Gallagher's erratic behavior on prior occasions, which consisted of angry gestures and profane language toward her. Ms. Norman also testified that the prior incidents terrified her, that she filed six police reports against Gallagher, and that she and Mr. Norman took measures—such as tinting windows of their home and installing surveillance and alarm systems—in response to Gallagher's prior harassment. The testimony was virtually certain to elicit from the jury strong sympathy for the Normans and animus toward Gallagher for the fear and unwarranted disruption Gallagher's ongoing behavior had caused in the Normans' lives—and Ms. Norman in particular. This extremely prejudicial effect was likely exacerbated by the State's focus on the past incidents in its opening statement and closing argument. The State repeatedly emphasized that "[t]his was not an isolated incident" and focused on the extensive countermeasures the Normans had taken in response to the prior events, expressly stating that it had introduced this evidence to show the Normans' perception of Gallagher. The State argued that Gallagher "was becoming more dangerous each time he showed up," seeming to encourage the jury to consider whether convicting Gallagher would prevent him from causing more harm. The possible future threat Gallagher posed was also irrelevant to whether the elements of criminal property damage in the second degree were met by Gallagher's conduct. This factor therefore also weighs heavily against admittance of the prior incidents.
Justice Nakayama's dissent dismisses the unfairly prejudicial effect of this evidence by drawing an inapt comparison to our decision in Behrendt. See Dissent at 146 Hawai'i at 495, 463 P.3d at 1152. In that case, we concluded the prior bad acts involved conduct that "was of the same general type" as the alleged crime and therefore unlikely to rouse the jury to overmastering hostility. Behrendt, 124 Hawai‘i at 107, 237 P.3d at 1173. In contrast, none of the previous incidents here involved property damage—the crime for which Gallagher was charged in this case—but rather obscene language and gestures, which communicated to the jury, as the dissent describes, "an escalating pattern of extreme aggression toward a specific couple." Dissent at 146 Hawai'i at 493, 463 P.3d at 1150. The dissimilar prior misconduct in this case plainly "carried with it the potential to rouse the jury to overmastering hostility against" Gallagher and thus violated HRE Rule 403. Kazanas, 138 Hawai‘i at 43, 375 P.3d at 1281 (concluding that evidence of the defendant's prior physical acts were not similar to the acts alleged in that case and created the potential of overmastering hostility towards the defendant, and thus the trial court abused its discretion in performing the HRE 403 balancing test).
Additionally, the prior misconduct in Behrendt was admitted to show the defendant's development of "a relationship of trust and control" over the minor, and to explain both the delayed reporting of the sexual abuse and when the abuse began. Behrendt, 124 Hawai‘i at 107-08, 237 P.3d at 1173-74. The dissent thus draws an incongruous comparison of the circumstances in Behrendt to those in this case and does not properly consider the availability of alternative evidence to prove the matter for which the misconduct evidence was offered in the two cases. See Dissent at 146 Hawai'i at 495, 463 P.3d at 1152.
Justice Nakayama's dissent places much reliance on the ability of the limiting instructions given by the court to cure the potential for the jury's improper use of the evidence of prior bad acts because "it will be presumed that the jury adhered to the circuit court's instruction." See Dissent at 146 Hawai'i at 493, 463 P.3d at 1150 (quoting State v. Kassebeer, 118 Hawai‘i 493, 519, 193 P.3d 409, 435 (2008) ). However, the ability to cure potential misuse of the evidence with a limiting instruction presupposes that the court correctly instructed the jury as to the evidence's proper use.
The requirement to issue a legally correct limiting instruction derives from "the trial courts' ... duty and ultimate responsibility to insure that juries are properly instructed on issues of criminal liability." State v. Adviento, 132 Hawai‘i 123, 137, 319 P.3d 1131, 1145 (2014) (citation omitted). This responsibility is of such importance that it rests upon the court even when a misstatement of law is the result of an improper argument of counsel to the jury. State v. Espiritu, 117 Hawai‘i 127, 143, 176 P.3d 885, 901 (2008) ("[T]he failure to correct misstatements of law by a prosecutor may result in reversal of a defendant's conviction."); State v. Basham, 132 Hawai‘i 97, 111, 319 P.3d 1105, 1119 (2014) (holding that a prosecutor's misstatement of the law was not cured where no specific curative instruction was given relating to the misstatement that was given). Similarly, a court's limiting instruction to the jury is also ineffective when it incorrectly instructs the jury about the limited use of admitted evidence. As provided by HRE Rule 105 (1993), "When evidence which is admissible ... for one purpose but not admissible ... for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly." (Emphasis added.)
This court recently addressed the importance of providing a proper limiting instruction to the jury. In State v. Lavoie, the trial court ruled that prior acts of abuse were admissible to rebut the defendant's penal responsibility and extreme mental or emotional disturbance defenses, but the court's limiting instruction informed the jury that the evidence could be considered on the defendant's intent to commit the offenses. State v. Lavoie, 145 Hawai‘i 409, 428-29, 453 P.3d 229, 248-49 (2019). We held that the instruction was an incorrect statement of the issues on which the trial court had ruled the prior bad acts were relevant, as it allowed the jury to consider the prior bad acts for a purpose other than that for which they had been admitted. Id. at 429-30, 453 P.3d at 249-50. Thus, we determined that the trial court had improperly instructed the jury on the use of the prior misconduct evidence. Id.
The trial court in Lavoie, as in this case, read the limiting instruction multiple times to the jury during the course of the trial. Lavoie, 145 Hawai‘i at 429, 453 P.3d at 249.
We concluded that it was unnecessary to determine whether the limiting instruction was "plainly erroneous" in light of our disposition of other issues in the case. Lavoie, 145 Hawai‘i at 429 n.36, 453 P.3d at 249 n.36.
In this case, Gallagher duly requested a limiting instruction, and the court was required to "restrict the evidence to its proper scope." Instead, the court informed the jury that Gallagher's prior acts could be considered in determining "the issue of the Defendant's motive to commit the offense charged, opportunity to commit the offense charged, ... preparation to commit the offense charged, plan to commit the offense charged, and identity of the person who may have or allegedly committed the offense charged." This instruction, given twice, was plainly incorrect.
The prior incidents should not have been considered by the jury for Gallagher's motive, opportunity, preparation, or plan because Gallagher's identity as the person who committed the charged offense was not in dispute. See Castro, 69 Haw. at 645, 756 P.2d at 1042 (when "the identity of the perpetrator of the crimes was not denied, [ ] the admission of the other crimes evidence as proof of modus operandi," including plan and preparation, "cannot be justified"). Instead of curing or limiting any potential misuse of the evidence, the court's "limiting" instruction expansively and improperly allowed the jury to consider the prior bad acts in order to prove, for example, that Gallagher had a plan to damage the car, that these prior acts were part of his preparation to commit the crime charged, and that the prior incidents of misconduct related to Gallagher's motive for the offense. See Lavoie, 145 Hawai‘i at 430 n.39, 453 P.3d at 250 n.39 (trial court erred by not tailoring the limiting instructions to the specific matters for which the prior bad acts were deemed relevant).
Justice Nakayama's dissent fails to recognize the substantial risk of the jury misapplying the prior misconduct evidence as a result of the court's flawed limiting instruction—hypothesizing that the jury considered the evidence only for issues not in dispute—and thus concludes that the instruction was harmless. Dissent at 146 Hawai'i at 493–94 n.9, 463 P.3d at 1150–51 n.9. But it is precisely because the limiting instruction failed to restrict consideration of the evidence to the purpose for which it was admitted while specifically allowing the jury to consider the misconduct evidence for issues not relevant to the charge, such as plan, preparation, and motive to commit the charged offense, that the prejudice to Gallagher from the prior misconduct evidence was exacerbated. Castro, 69 Haw. at 645–46, 756 P.2d at 1042 (holding there was "no [ ] basis to consider the evidence admissible under the rubric of ‘preparation’ " or plan, and "the potential for unfair prejudice being generated by the evidence was far greater than its value in establishing facts of consequence to the determination of the case").
Not only were plan, preparation, and motive not elements of the crime, but as Gallagher's counsel argued to the court during the motions in limine and at trial, because identification was also not in issue, the introduction of the prior incidents would confuse and mislead the jury. It was incumbent upon the court to issue a limiting instruction that properly instructed the jury as to the legitimate uses of the prior incidents after the court admitted the misconduct evidence, particularly in light of its great potential for misapplication by the jury. See HRE Rule 105 (requiring the court, when requested, to restrict admitted evidence to its proper scope). We have repeatedly emphasized that it is the trial court's duty to properly instruct the jury on the applicable law, and that once instructional error is demonstrated, the judgment will be vacated if the erroneous instruction was not harmless beyond a reasonable doubt. See, e.g., State v. Taylor, 130 Hawai‘i 196, 204-08, 307 P.3d 1142, 1150-54 (2013) ; State v. Kikuta, 125 Hawai‘i 78, 95, 253 P.3d 639, 656 (2011) ; State v. Stenger, 122 Hawai‘i 271, 281, 226 P.3d 441, 451 (2010). Thus, the dissent's reliance on the court's limiting instruction, see Dissent at 146 Hawai'i at 493, 463 P.3d at 1150, is misplaced because it improperly instructed the jury that the evidence of bad acts could be considered in determining Gallagher's motive, opportunity, preparation, or plan to commit the offense charged.
Upon hearing the evidence of the prior incidents in this case, the jury likely "prejudge[d]" Gallagher based on "a bad general record" of interactions with the Normans and "den[ied] him a fair opportunity to defend against" the specific charge of criminal property damage in the second degree. Castro, 69 Haw. at 645, 756 P.2d at 1042 (quoting Michelson v. United States, 335 U.S. 469, 476, 69 S.Ct. 213, 93 L.Ed. 168 (1948) ); accord Kazanas, 138 Hawai‘i at 43, 375 P.3d at 1281 (holding that the improper admission of a prior domestic abuse offense against a vulnerable victim could have roused the jury to overmastering hostility against the defendant). "On balance, the potential for unfair prejudice being generated by the evidence was far greater than its value in establishing facts of consequence to the determination of the case." Castro, 69 Haw. at 645–46, 756 P.2d at 1042. Thus, the circuit court abused its discretion in finding that the prejudicial effect of the prior incidents did not substantially outweigh their probative value.
Recognizing that the admission of the extensive details pertaining to the prior incidents was "highly prejudicial" and clearly inadmissible, the Chief Justice's dissent argues that Gallagher failed to preserve his objection to this evidence and thus "waived" an objection to its introduction. C.J. Dissent at 146 Hawai'i at 483–84, 463 P.3d at 1140–41. The basis for this flawed contention is that Gallagher did not object to what the Chief Justice's dissent calls "impact testimony" as to the four prior incidents.
The Chief Justice's dissent identifies the "impact testimony" as including
the Normans' repeated calling of police regarding the incidents; their filing of six police reports involving harassment; the numerous protective measures installed in their home, including the tinting of windows and the installation of a surveillance system with seven video cameras and an alarm system; and—perhaps most prejudicial—the recounting of the Normans' ongoing fear of Gallagher and Ms. Norman's statement that the prior incidents terrorized her.
C.J. Dissent at 146 Hawai'i at 483–84, 463 P.3d at 1140–41.
In this case, Gallagher objected to the admission of the evidence regarding the four prior incidents five separate times: in the written motions in limine, during the hearing on the motions in limine and in opposition to the State's notices of intent, in the State's opening statement, and during Ms. Norman's testimony when she was about to testify regarding the prior incidents. Nonetheless, the "impact testimony" theory faults the specificity of Gallagher's multiple objections, positing an artificial distinction between an objection relating to conduct and one relating to the results of that same conduct. Under this theory, Gallagher waived his objection to the "impact testimony" because, while he objected to the introduction of evidence of his actions in the various incidents, he did not specify that he was also objecting to the reactions of the Normans to his actions. C.J. Dissent at 146 Hawai'i at 483–87, 463 P.3d at 1140–44.
However, the very substance of Gallagher's objections clearly indicates that Gallagher's objections were not restricted only to his conduct during the prior incidents. In Gallagher's written motions in limine, he requested an order excluding "testimonial or documentary" evidence "relating to any other ‘acts’, bad or otherwise involving the defendant" and specifically "any" such evidence "regarding alleged incidents involving the Complaining Witnesses and/or other person" on the four dates. (Emphases added.) This objection manifestly included the evidence characterized by the Chief Justice's dissent as "impact testimony" (e.g., the Normans' repeated calling of police regarding the incidents; their filing of six police reports involving harassment; Ms. Norman's statement that the prior incidents terrorized her), as the evidence was "relating to" and "regarding" the prior incidents.
Indeed, had the court granted Gallagher's motion to preclude any evidence regarding the prior incidents, under the analysis of the Chief Justice's dissent, the State would nevertheless have been allowed to elicit "impact testimony" from Ms. Norman, such as her reporting of the six incidents to the police and that the prior incidents terrorized her.
The "impact testimony" theory is further refuted by the very nature of the prior incidents that the State sought to introduce, which the State identified in its notices of intent as harassment or harassment by stalking incidents. These offenses, as they pertain to this case, requires the victim to "reasonably believe[ ]" that the actor intends to cause bodily injury to the victim or damage to their property. See HRS §§ 711-1106(1)(a), (f) (2014), 711-1106.5 (2014). Thus, by definition and by their inherent nature, the underlying conduct of these offenses directly involved "impact" upon Ms. Norman, particularly her fear that directly resulted from Gallagher's actions. Therefore, Gallagher's objections to the prior incidents listed in the State's notices of intent because the incidents were irrelevant and unduly prejudicial included the reactions of the Normans that related to or involved the reported harassment.
The State in fact expressly noted in the pretrial hearing that it intended to show "an escalating series of events" and that it would seek to elicit evidence regarding the harassment incidents, including the threatening nature of Gallagher's visits and the resulting extensive countermeasures the Normans undertook.
[COUNSEL]: .... [Gallagher] just started appearing at our complaining witness's house, essentially taking them to the point where they had to get a protective order against him, installed a video surveillance system on their house, basically because he had come around so many times threatening them[.]
It is clear that testimony surrounding the incidents that the State sought to introduce included the results of Gallagher's threatening behavior, which at a minimum had "tak[en] [the Normans] to the point where they had to ... install[ ] a video surveillance system." There is no question that the State correctly concluded that the circuit court had ruled that Ms. Norman could testify as to her reactions during and to the incidents since her reactions prompted the phone calls to police, the filing of police reports, and the necessity for the video surveillance system. And there is also no question that Gallagher's objections to the evidence "regarding" or "relating" to the prior incidents likewise sought to exclude this testimony.
The Chief Justice's dissent points to other statements made by the prosecutor during the motions in limine hearing to support its position that the prior misconduct sought to be admitted by the prosecutor only pertained to Gallagher's actions and not the results of his actions upon the Normans. However, even in the description of the incidents that the dissent relies upon, the prosecutor recounted to the court that Ms. Norman "observes the defendant outside of her house again being aggressive, yelling profanities at her," that Ms. Norman "reports harassment," "reports again to the police that this is the same individual," and "files a police report." Additionally, in the prosecutor's written notices of intent, the incidents were identified as four incidents of harassment and two of harassment by stalking. It is unmistakably clear that the prosecutor sought to introduce not only actions by Gallagher in the incidents but the Normans' reactions to his conduct, including the fear they engendered, the numerous police reports filed, and the protective measure cited by the prosecutor. If the prosecutor had intended otherwise, as the Chief Justice's dissent maintains, its admission would have minimized Gallagher's conduct by considering his actions as something separate from their effects on the Normans.
The State's understanding of the trial court's ruling is abundantly clear from its opening statement when it provided a wholesale description of the prior incidents, inclusive of their resulting impacts.
Indeed, the illogicality of distinguishing between objections to the conduct and the impact of that conduct has its own implications. As the Chief Justice's dissent aptly notes, the State's notices of intent did not expressly advise that it intended to introduce the resulting "impact" occasioned by the harassment incidents, and it is partially for this reason that the dissent concludes that Gallagher's objections to these incidents were ineffectual in preserving objections to this evidence. See C.J. Dissent at 146 Hawai'i at 484–85, 463 P.3d at 1141–42. Yet, it is clear that the prosecutor intended to and did, in fact, elicit Ms. Norman's "impact testimony." Thus, under the Chief Justice's analysis, the State engaged in prosecutorial misconduct by failing to provide reasonable notice of its intent to adduce "impact" evidence of Gallagher's "other crimes, wrongs, or acts," which falls squarely within HRE Rule 404(b). See HRE Rule 404(b) ("In criminal cases, the proponent of evidence to be offered under this subsection shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the date, location, and general nature of any such evidence it intends to introduce at trial."); State v. Underwood, 142 Hawai‘i 317, 325 n.12, 418 P.3d 658, 666 n.12 (2018). Thus, under the Chief Justice's analysis, we would be compelled to find that the prosecutor's misconduct in failing to provide notice of its intention to adduce "impact evidence" was "highly prejudicial" and deprived Gallagher of a fair trial.
It is noted that the "impact testimony theory" was never advocated by the State at trial or raised on appeal, is contrary to the approach our courts have long applied, and is not part of our evidence law. Additionally, the artificial distinction between actions and their effects would create difficult problems for counsel and the court in its application. Prosecutors and defense attorneys—and the courts in their rulings—would be required to dissect the series of events in any misconduct incident to distinguish between the actions of the defendant and the effects of those actions, parceling out such matters as the victim's reactions to the conduct, the resulting fear or injuries from the conduct, and defensive responses taken during the incident. We thus reject the "impact testimony" theory propounded by the Chief Justice's dissent.
In summary, it is clear that Gallagher properly preserved his objection to the testimonial evidence regarding the prior incidents, including the unduly prejudicial testimony of the extensive surrounding details elicited from Ms. Norman.
It is noted that this court has previously rejected the "waiver" analysis that the Chief Justice's dissent advocates in an analogous context. In State v. Schnabel, the petitioner sought to prevent the State from eliciting evidence of petitioner's juvenile proceedings, arguing that the evidence was not relevant and that its probative value was substantially outweighed by the risk of prejudice. 127 Hawai‘i 432, 457–58, 279 P.3d 1237, 1262–63 (2012). We held that the circuit court had erred in allowing the evidence to be introduced because HRS § 571-84(h) barred the introduction of such evidence, and further concluded that petitioner had not waived the argument by failing to specify the statute in its objection. As we explained in Schnabel,
"Case law from our state indicates ... that the purpose of requiring a specific objection is to inform the trial court of the error." State v. Long, 98 Hawai‘i 348, 353, 48 P.3d 595, 600 (2002). However, Long explained that an appellate court will "consider a meritorious objection not voiced to the trial judge" when "the ground for exclusion should have been obvious to [the] judge and opposing counsel[,]" 98 Hawai‘i at 354, 48 P.3d at 601 (internal quotation marks, citation, and emphasis omitted) (emphasis added). Although Petitioner did not specifically raise HRS § 571–84(h), its applicability should have been "apparent from the context[,]" HRE Rule 103(a)(1) of Petitioner's objection.
Id. at 458, 279 P.3d at 1263 (alterations in original). As stated above, Gallagher clearly informed the court that he sought to preclude "any testimonial or documentary evidence regarding the alleged incidents" and repeatedly objected to the State's introduction of the incidents as irrelevant and unduly prejudicial. Even assuming Gallagher's objections were not specific enough to include the Normans' reactions to his conduct, which they were, it should have been obvious to the court that Gallagher's objections were not limited to his conduct during the incidents, but rather they included "any" testimony "regarding" or "relating" to the prior incidents.
Finally, the Chief Justice's dissent acknowledges the HRE Rule 404(b) principle that "whether or not the proffer survives the [HRE] rule 403 balance may well depend on whether or not the matter is in dispute[, which requires] consideration of the precise defensive claims being made in the case." C.J. Dissent at 146 Hawai'i at 483, 463 P.3d at 1140 (alterations in original) (quoting Addison M. Bowman, Hawaii Rules of Evidence Manual § 404-3[3][D], at 4-60 (2016-2017 ed.)). Both dissents, however, contend that because a juror submitted a question regarding Gallagher's identity, that question essentially demonstrated his identity was disputed, which in turn rendered Gallagher's prior conduct as "relevant and admissible." C.J. Dissent at 146 Hawai'i at 483, 463 P.3d at 1140. In their efforts to portray identity as a disputed issue that did not exist at trial, the dissents seek to establish and apply a new legal principle that juror questions submitted during trial can be utilized to evaluate the validity of evidentiary rulings. This approach is fundamentally flawed.
Like Justice Nakayama's dissent, the Chief Justice's dissent points to the fact that because Gallagher did not stipulate to the elements of the offense, the State's burden of proof provided a basis for admission of the HRE Rule 404(b) misconduct evidence. C.J. Dissent at 146 Hawai'i at 482–83, 463 P.3d at 1139–40. The contention that an unstipulated element renders the element in dispute for purposes of HRE Rule 404(b) analysis is contrary to our caselaw, conflicts with settled evidentiary principles set forth in Professor Addison Bowman's treatise, and would effectively nullify the restrictions of HRE Rule 404(b). See supra note 9.
Under the dissents' theory, a juror's question that comes before other witnesses are called to testify on the "disputed" matter or before other physical evidence is introduced may be determinative of the admissibility of HRE Rule 404(b) evidence. The juror question relied upon by the dissents, which occurred at the conclusion of Ms. Norman's testimony, was the following: "Can the Defendant be positively identified that it is really him?" C.J. Dissent at 146 Hawai'i at 483, 463 P.3d at 1140; see Dissent at 146 Hawai'i at 486 n.5, 463 P.3d at 1143 n.5. However, even if consideration of jury questions were permissible to review evidentiary rulings, the obvious problem with the dissents' reliance on this question to show a disputed issue of identity is that the question was posed prior to Mr. Norman's testimony and prior to the defense case when Gallagher testified to his actions during the incident. In Mr. Norman's subsequent testimony, he identified Gallagher in court, described Gallagher's movements during the night of the incident, and stated that Gallagher caused the damage to the vehicle depicted in photographs published to the jury. In Gallagher's testimony, he unequivocally testified that he was the person who had kicked the vehicle.
The issue of identify was unquestionably not disputed at trial, and it did not become disputed as a result of a juror question about the certainty of a witness' identification that occurred before evidence in the case was concluded. Yet, under the dissents' hypothesis, the substance of questions posed by jurors is a factor to be considered when determining questions of the admissibility of evidence under HRE Rule 404(b). This rationale merely reflects the absence of a legally valid reason given by the dissents for the admission of the prior misconduct evidence. And absurdly, a juror's question that comes before other witnesses are called to testify on the "disputed" matter or before other physical evidence is introduced may be determinative of the admissibility of HRE Rule 404(b) evidence. Under this approach, the State would benefit from a prosecutor's deficient direct examination that results in juror questions to clarify a witness' testimony, which then incongruously provides a basis for admission of misconduct evidence.
The Chief Justice's dissent asserts agreement with this opinion that juror questions do not determine the admissibility of evidence under HRE Rule 404(b). But, because it is undisputed that the evidence as to identity was not contested, the juror question remains the only basis the dissents point to for admission of the misconduct evidence. As stated, the absence of a stipulation does not make an undisputed element of an offense disputed, nor does it provide a vehicle to circumvent our settled law on HRE Rule 404(b). See authorities and caselaw discussed supra note 9.
It is noted that the novel approach of the dissenting opinions, that an appellate court may use a juror question to review the legal propriety of an evidentiary trial ruling (and perhaps other rulings as well), was neither argued nor raised by the State. But even assuming that legal principles permitted juror questions to be used to support an evidentiary ruling (which they emphatically do not), by the same logic, juror questions could also be used to show that a prior evidentiary ruling was erroneous. Trial judges would then be placed in the position of having their evidentiary rulings upended by the substance of questions submitted by jurors. Consequently, a trial court would need to be ready to reconsider its prior evidentiary rulings based on jury questions, and appellate courts would be required to evaluate both the initial evidentiary ruling of the trial court and its response to a juror question as it relates to the earlier ruling. This underscores the problematic nature of the proposition advocated by the dissents.
Indeed, one juror question asked, "Was this the first time the defendant caused property damage against the Normans?" Applying the dissents' reasoning, this question would firmly support Gallagher's contention that because none of the prior incidents involved property damage, they should have been excluded as having virtually no probative value to the only issue in this case—Gallagher's intent regarding the amount of property damage caused to the Normans' vehicle—and thus their admission violated HRE Rule 403.
In summary, the reliance by the dissents on the juror question regarding "identity" is flawed because the evidence at trial unquestionably demonstrated that identity was not in dispute, under well-settled legal principles the admissibility of HRE Rule 404(b) evidence is not supported or refuted by the substance of a juror question, and even assuming such a principle existed in our law, neither the State's nor the defense's evidence had been completed at the time the question was posed.
B. The Circuit Court's Error Was Not Harmless.
"In applying the harmless beyond a reasonable doubt standard[,] the court is required to examine the record and determine whether there is a reasonable possibility that the error complained of might have contributed to the conviction." State v. Mundon, 121 Hawai‘i 339, 368, 219 P.3d 1126, 1155 (2009) (alterations in original) (quoting State v. Balisbisana, 83 Hawai‘i 109, 114, 924 P.2d 1215, 1220 (1996) ).
This is not a case "[w]here there is a wealth of overwhelming and compelling evidence tending to show" beyond a reasonable doubt that Gallagher intended or knew that his actions would cause over $1,500 in damage to the Normans' property. State v. Rivera, 62 Haw. 120, 128, 612 P.2d 526, 532 (1980). Although the repair estimates presented by the State may initially suggest that it was manifest that the damage exceeded $1,500, the amount of divergence between the estimated amounts demonstrates the difficulty of objectively gauging the cost of automotive repairs. Yoshizawa, the mechanic who testified for the State, asserted that the repairs would cost $4,583.04. In contrast, Little, an automotive damage specialist for the Normans' insurance company, estimated the damage at $3,036.26—$1546.78 less than Yoshizawa. If the estimates of two trained specialists varied to such a degree, it can hardly be said beyond a reasonable doubt that Gallagher was aware the damage he was causing was likely to exceed $1,500 simply from viewing it as it occurred.
The State's other evidence on the issue consisted primarily of visual depictions of the incident and its aftermath and testimony of the Normans' perception of the event. The State introduced two video recordings that showed Gallagher running up to and flailing at the Normans' vehicle without clear purpose or direction. The State also presented the testimony of Mr. Norman, who testified that he saw multiple dents on the vehicle after the incident on September 15, 2013, and identified a series of photographs that depicted the damage to the vehicle that was allegedly caused by Gallagher. The State published the photographs to the jury and entered them into evidence; they do not appear to clearly depict extreme damage and show that the truck had many preexisting scratches and scuff marks.
In contrast, Gallagher testified that he had kicked the truck with only the inside of his foot and that the incident lasted a total of only ten seconds. Gallagher said that he was 5 feet 9 inches tall and weighed 160 pounds and that he was wearing a pair of cross-trainers during the incident. He indicated that he had only "put a couple scuff marks on the truck," which would have amounted to $300 or $400 in damage, requiring only a "detail job to buff it out" or a "wax job" to repair. Gallagher stated that he did not intend to do extensive damage to the vehicle. Given this balance of evidence, the jury's determination essentially turned on whether they credited Gallagher's testimony regarding the extent of the damage he intended to cause and was aware he was causing, and this assessment could have been colored by the dramatic details of the prior incidents.
Further, the prejudicial testimony may have led the jury to decide the case on considerations completely independent of the charged offense. The jury may have viewed the entire course of Gallagher's conduct as a continuing campaign of harassment against the Normans that they could end by convicting him. And the jurors may have decided the case based not on the amount of damage Gallagher intended to cause during the charged incident, but rather a desire to relieve the Normans of the ongoing hardship of constantly dealing with Gallagher's misconduct toward them and the extreme fear that it caused them.
"Unfair prejudice ‘means an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one.’ " Kaeo v. Davis, 68 Haw. 447, 454, 719 P.2d 387, 392 (1986) (quoting Advisory Committee's Note to Federal Rules of Evidence 403 ); see HRE Rule 403 cmt. (specifying that a form of unfair prejudice is the evidence's "potential for engendering" the jury's emotions, such as "hostility[ ] or sympathy"). Because we do not conclude that the wrongfully admitted testimony did not color the jury's perception as to whether the elements of the offense were met or lead the jury to decide the case on a basis unrelated to those elements, there is a reasonable possibility that the error contributed to Gallagher's conviction. The error was therefore not harmless beyond a reasonable doubt.
V. CONCLUSION
Based upon the foregoing, we vacate the ICA's judgment on appeal, vacate the circuit court's judgment of conviction and sentence, and remand the case for further proceedings consistent with this opinion.
DISSENTING OPINION BY RECKTENWALD, C.J.
The majority holds that Ms. Norman's testimony about the four prior incidents in which Gallagher aggressively confronted the Normans was "only marginally probative," and that the likelihood of unfair prejudice substantially outweighed its probative value, making the evidence inadmissible under Hawai‘i Rules of Evidence (HRE) 403. Majority at 146 Hawai'i at 472, 463 P.3d at 1129. I respectfully dissent.
I would hold, first, that testimony about what happened during the prior incidents was relevant and admissible. Second, while I agree with the majority that testimony about the impact of the incidents on the Normans – Ms. Norman's fear of Gallagher and the protective measures the Normans took ("the impact testimony") – was irrelevant and prejudicial, I conclude that Gallagher did not specifically object to that evidence and so any error is waived.
A. Testimony About Gallagher's Conduct During the Prior Incidents Was Admissible
The majority does not draw a distinction between testimony about Gallagher's conduct during the prior incidents and testimony about its impact on the Normans. Evidence of Gallagher's conduct was relevant to show the extent of his hostility toward the Normans, making it more likely that he intended to cause serious property damage when he kicked their vehicle. And, as no other evidence existed that demonstrated his extreme antagonism toward the Normans, there was a significant need for such evidence.
The parties’ dispute over Gallagher's intent was essentially one of degree – since Gallagher admitted that he intended to kick the Normans’ truck, the only question was whether he intended to kick it so hard that it would cause over $1,500 in damage. As the defense suggested during opening statements:
The only thing that really is in dispute is the damages. What [Gallagher] – what was [Gallagher] thinking as far as the damages? What did he mean to do as far as the damages? What did he know?
And the evidence will show that [Gallagher] did not intend to cause of $1,500 in damages to the truck, and the evidence will show that [Gallagher] was not aware and did not believe that the damage would be to that extent.
Gallagher testified that "I kicked the truck. I lost my composure. I kicked the truck. It's not something I normally do. ... And my intentions were not whatsoever to go over there and do extensive damage to that truck." On cross-examination, Gallagher reiterated, "I kicked a couple scuff marks on his truck. ... I did it. But not $1500 worth of damage that's going to put me in prison for five years, because it's a Class C Felony. No possible way." Similarly, in closing, the defense argued:
[Gallagher] did not mean to cause over $1,500 in damages. That was not his intent or goal.
....
Now, in the beginning, I told you that there's not much in dispute. It's not disputed that [Gallagher] is the person in the video. It's not disputed that he went over to the Normans’ residence. It's not disputed that he kicked the truck.
The only thing that is in dispute concerns the damages, the extent of damages to the truck. What was going on in [Gallagher's] mind, did he mean to, or was it his conscious object to cause over $1,500 in damages, and did he know or believe that the amount of damage would be that much?
While other evidence at trial, including the surveillance video, demonstrated that Gallagher intended to cause at least some damage to the Normans’ truck, no other evidence spoke directly to how much damage he intended to cause. As the circuit court explained, without evidence of Gallagher's prior aggressive conduct, "there really is no context whatsoever as to why someone would appear at someone's house and begin to damage one's vehicle to the extent it was damaged."
The majority also contends, "assuming some probativeness of the prior misconduct, the number of prior incidents should have been limited to the minimum sufficient to obtain the asserted probative value the conduct offered." Majority at 146 Hawai'i at 473, 463 P.3d at 1130. However, the fact that Gallagher accosted the Normans at their home not once, but numerous times, was part of the evidence's probative value. As the State argued, Gallagher's conduct escalated with each prior incident. That inference would not be available if the circuit court admitted only one or two of the incidents.
HRE Rule 401 provides, " ‘[r]elevant evidence’ means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence."
Moreover, the prior incidents were also relevant for establishing Gallagher's identity. As Justice Nakayama's dissent observes, because Gallagher did not stipulate to any elements, "the State had the burden to prove each element beyond a reasonable doubt at trial." Justice Nakayama's Dissent at 146 Hawai'i at 491, 463 P.3d at 1148. It is true that "whether or not the proffer survives the [HRE] rule 403 balance may well depend on whether or not the matter is in dispute[, which requires] consideration of the precise defensive claims being made in the case." Addison M. Bowman, Hawaii Rules of Evidence Manual § 404-3[3][D] at 4-60 (2016–2017 ed.). However, this does not mean that evidence relating to an undisputed element can never be admitted under HRE 403. Here, the jury in fact questioned Gallagher's identity, even though he did not dispute that he was the person who kicked the Normans’ truck. When given the opportunity to ask Ms. Norman questions, the jury asked, "Can the Defendant be positively identified that it is really him?" In answering the question, Ms. Norman explained,
Yes, absolutely. I had seen the Defendant six different times over the previous five months. The first time being very close where I had opened the door and actually seen him and talked to him myself and asked him if he needed help.
I had seen him in cars. I had seen him from across the street. But as you can see, the street is not that wide, so every time I saw him, it was within 10 or 15 feet, and I am 100 percent confident that I could identify him each time, and particularly this night, there was no doubt in my mind.
Without Ms. Norman's testimony regarding the prior incidents, her positive identification of Gallagher would not have made sense. Because the State had the burden of proving Gallagher's identity, evidence of Gallagher's prior conduct towards the Normans was relevant and admissible.
I agree with the majority that a juror's question does not determine whether evidence is admissible. However, the question illustrates that in the absence of a stipulation, even seemingly undisputed elements can be in doubt, and therefore evidence that goes to those elements still retains probative value. Just as the jury's question about Gallagher's identity is not dispositive of admissibility, neither is the fact that the defense did not actively contest identity. Identity was still an element the State had the burden of proving beyond a reasonable doubt, and the numerous encounters between Gallagher and the Normans were probative of that element.
Thus, I disagree with the majority that the circuit court abused its discretion in admitting evidence about Gallagher's conduct during his prior interactions with the Normans.
B. Gallagher Waived Any Objection to the Impact Testimony
In addition to the testimony about Gallagher's conduct during the prior incidents, as the majority notes, the State elicited "extensive surrounding details of the incidents," including "a range of highly prejudicial information that was lacking in probative value as to Gallagher's state of mind." Majority at 146 Hawai'i at 472, 463 P.3d at 1129. This impact testimony included:
the Normans’ repeated calling of police regarding the incidents; their filing of six police reports involving harassment; the numerous protective measures installed in their home, including the tinting of windows
and the installation of a surveillance system with seven video cameras and an alarm system; and – perhaps most prejudicial – the recounting of the Normans’ ongoing fear of Gallagher and Ms. Norman's statement that the prior incidents terrorized her.
Id.
The majority characterizes this evidence as "highly prejudicial." Id. I agree. However, in analyzing the prejudicial effect of the impact testimony, the majority makes a critical assumption: that Gallagher preserved his objection to this evidence. To the contrary, I would hold that Gallagher waived any objection to the impact testimony, and therefore that we should not reach this issue.
In particular, I agree with the majority that "the State could have elicited a much less elaborate recounting of the prior incidents, greatly limiting testimony to the aspects of the incidents that ostensibly bore on Gallagher's state of mind," Majority at 146 Hawai'i at 473, 463 P.3d at 1130, and that "any need to provide context as to Gallagher's intent did not make it necessary to introduce evidence of ... the Normans’ extreme fear, or the extensive countermeasures taken." Majority at 146 Hawai'i 473, 463 P.3d at 1130. As discussed below, I don't agree that the "details of each of the four prior incidents," Majority at 146 Hawai'i 473, 463 P.3d at 1130, were inadmissible.
HRS § 708-821(1)(b) provides, in relevant part:
A person commits the offense of criminal property damage in the second degree if by means other than fire: ... The person intentionally or knowingly damages the property of another, without the other's consent, in an amount exceeding $1,500.
1. Gallagher's Motion in Limine Was Insufficient to Preserve an Objection to the Impact Testimony
A defendant must make a prompt and specific objection at trial in order to preserve an issue for appeal. Addison M. Bowman, Hawaii Rules of Evidence Manual § 103-2[1] at 1-7 (2016–2017 ed.); see also 1 Kenneth S. Broun, et al., McCormick on Evidence § 52 (7th ed. 2016) ("[T]he general approach is that a failure to make a specific objection at the time the evidence is proffered, is a waiver for appeal of any ground of complaint against its admission."). "[A]t a bare minimum, the objector must tell the trial judge ‘both what is objected to and why.’ " 21 Charles Allen Wright, et al., Fed. Prac. & Proc. Evid. § 5036.1 (2d ed.).
A motion in limine can be sufficient to preserve an objection to the admissibility of evidence, so long as "the trial court makes a definitive pretrial ruling that evidence is admissible[.]" Kobashigawa v. Silva, 129 Hawai‘i 313, 321, 300 P.3d 579, 587 (2013). Thus, we must first determine whether the circuit court made "a definitive pretrial ruling" about the impact testimony. The circuit court did not do so here.
A ruling is definitive "when it ‘leaves no question that the challenged evidence will or will not be admitted at trial.’ " Id. at 329, 300 P.3d at 595 (quoting Quad City Bank & Trust v. Jim Kircher & Assocs., P.C., 804 N.W.2d 83, 90 (Iowa 2011) (alteration omitted). The key question is "what the trial court purported to do in its ruling." Id. (quoting Quad City, 804 N.W. 2d at 90 ). Here, the circuit court's ruling on Gallagher's motion in limine was not definitive as to the impact testimony because the motion never alerted the court to the possibility that the State would elicit such testimony from the Normans.
The parties’ pleadings never discussed the impact testimony. Gallagher's Motion in Limine objecting to 404(b) evidence was extremely general: "Defendant requests an order excluding any testimonial or documentary evidence regarding alleged incidents involving the Complaining Witness and/or other persons on May 9, 2013, August 30, 2013, and August 31, 2013, September 19, 2013[.]" A few days later, the State filed similarly-general Notices of Intent to introduce 404(b) evidence, disclosing the police report number for each prior incident. In its Notice, the State did not include any evidence about the Normans’ state of mind or the protective measures they took.
At the hearing on the defense's motion in limine, the parties focused on Gallagher's conduct during the prior incidents – not the impact of his conduct on the Normans. The majority contends that "[t]he State in fact expressly noted in the pretrial hearing that it intended to show ‘an escalating series of events’ " that included the fact that the Normans had gotten a protective order and installed surveillance videos around their home. Majority at 146 Hawai'i at 477–78, 463 P.3d at 1134–35. Not so.
The circuit court asked the State to "elaborate specifically on [ ] the conduct alleged" and explain why it was admissible. Following the State's general argument about escalating events, which the majority quotes, the State went through each prior incident explaining to the court the testimony it intended to elicit. For example:
March 24th, 2013. That was the initial incident, Your Honor. That was where our complaining witness is home; she hears something out on her front lawn; comes out; she sees - she plainly identifies the defendant. He's out there. She doesn't know who he is. He yells at her that she's going to lose her job and all this other stuff because, apparently, they're - he believes that they're conspiring against him and hiding some sort of crime. He leaves. And that was March 24th. She calls in; reports harassment on that.
....
Then on - it was May 9th, Your Honor. Again, complaining witness was Jessica Norman. She observes the defendant outside of her house again being aggressive, yelling profanities at her; claims that her family and her are CIA agents and are using space satellites to transmit LASER beams to control his brain. She reports again to the police that this is the same individual that had come by on March 24th. He leaves. She files a police report.
The State went through each of the separate incidents describing what Ms. Norman would testify to – and none of the facts included Ms. Norman's fear of Gallagher, or the Normans’ protective measures, such as the surveillance cameras. In response, the defense objected generally to evidence about what happened during the prior incidents, contending it was not relevant. Gallagher only specifically objected to testimony about his mental health, which the court agreed would be excluded. Following the parties’ arguments, the circuit court ruled that defense counsel's motion in limine "will be denied in part, and granted in part. Denied as to the incidents in terms of conduct; granted in part ... in terms of statements [about Gallagher's mental health.]" (Emphasis added).
At most, the circuit court's decision was a definitive ruling that evidence of Gallagher's prior conduct was admissible, thereby preserving the defense's objection even in the absence of a contemporaneous objection at trial. However, the court never ruled on the admissibility of the impact testimony because it was not brought to the court's attention.
Thus, the defense's motion in limine did not preserve an objection to the impact testimony for appeal. See Craft v. Peebles, 78 Hawai‘i 287, 295, 893 P.2d 138, 146 (1995) (holding motion in limine insufficient to preserve objection where "the court did not rule with certainty that the evidence concerning [a party's] criminal record and family problems would be allowed into evidence"); see also People v. Diaz, 15 N.Y.3d 40, 904 N.Y.S.2d 343, 930 N.E.2d 264, 269–70 (2010) (holding motion in limine did not preserve objection to testimony that "exceeded the scope of the [trial] court's ruling"); State v. Sulloway, 166 N.H. 155, 90 A.3d 605, 610 (2014) (same).
2. Defense Counsel's "Running Objection" Did Not Preserve an Objection to the Impact Testimony
Even if the motion in limine was insufficient to preserve Gallagher's objection to the impact testimony, the issue might have been preserved had Gallagher timely and specifically objected during trial – but he did not do so.
"An objection must be made as soon as the ground of it is known, or could reasonably have been known to the objector[.]" 21 Charles Allen Wright, et al., Fed. Prac. & Proc. Evid. § 5037.1 (2d ed.). Here, Gallagher should have objected as soon as the State asked Ms. Norman, "How did [the prior incidents] make you feel?" But not only did Gallagher fail to object to that question, he failed to object to Ms. Norman's answer that she was "terrified," and did not object to any of the State's follow-up questions regarding the Normans’ protective measures. In fact, Gallagher never informed the trial court that the impact testimony implicated HRE 403, even when the State urged the jury to consider the impact testimony during closing arguments.
At the beginning of Ms. Norman's testimony, when the State began to elicit her statements about what happened during the prior incidents, Gallagher did object under 404(b) and asked for "a running objection under 404(b) regarding any prior incidents." However, the impact testimony was outside the scope of this "running objection." Accordingly, that objection failed to preserve the issue.
As a threshold matter, I note that the circuit court never granted Gallagher's "running objection." Trial courts have discretion over whether to grant a running objection, but the mere request for one is insufficient to preserve an objection for appeal. See Kang v. State, 393 Md. 97, 122, 899 A.2d 843, 857 (Md. 2006) (holding defendant could not rely on offer of a continuing objection; trial court had to explicitly grant a continuing objection for an issue to be preserved); cf. State v. Manewa, 115 Hawai‘i 343, 347, 167 P.3d 336, 340 (2007) (noting trial court granted a running objection). Nevertheless, for the purpose of this analysis, I presume that the circuit court granted defense counsel's request for a running objection.
HRE Rule 404(b) provides:
(b) Other crimes, wrongs, or acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible where such evidence is probative of another fact that is of consequence to the determination of the action, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, modus operandi, or absence of mistake or accident. In criminal cases, the proponent of evidence to be offered under this subsection shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the date, location, and general nature of any such evidence it intends to introduce at trial.
"A continuing objection that lacks the specificity required by Rule 103 will not preserve error." 21 Charles Allen Wright, Fed. Prac. & Proc. Evid. § 5036.4 (2d ed.). Specificity has two components: the objecting party must (1) identify the testimony being challenged and (2) state the grounds for the objection. Addison M. Bowman, Hawaii Rules of Evidence Manual § 103-2[1] at 1-7 (2016–2017 ed.). Here, Gallagher failed to satisfy the first component by not specifying the impact testimony as the subject of his objection.
Gallagher's running objection to 404(b) evidence focused on testimony about "any prior incidents," and defense counsel specifically noted that she was making the same objection raised at the hearing on Gallagher's motion in limine." Nothing in defense counsel's objection alerted the court to any additional problems not addressed during the prior hearing. Consequently, the circuit court's ruling only addressed evidence of "these prior incidents," without ruling on any evidence about the impact of Gallagher's conduct on the Normans. Indeed, the circuit court's limiting instruction, which, at the defense's request, was read to the jury immediately before the State elicited 404(b) testimony, addressed only Gallagher's conduct: "[Y]ou are about to hear evidence that the Defendant allegedly at another time may have engaged in other acts, wrongs, or crimes." (Emphasis added).
Defense counsel told the court:
Judge, I would just object. I know this issue was raised at motions in limine, but I would just make an objection under 404(b). Your Honor, even assuming that these prior incidents are relevant, I believe the Court still has to determine whether there's unfair prejudice to my client and whether that's substantially – you know, or whether the need for it substantially outweighs any danger of unfair prejudice.
I would submit, you know, in this case, identification is not an issue. The prior incidents do not go to state of mind as far as knowing the amount of the damage. The facts are different, and I would submit that it would confuse the issue, mislead the jury.
And I would also submit that there's other evidence that can go towards the damages, so I would just ask for a running objection under 404(b) regarding any prior incidents.
HRE Rule 608(b) provides:
(b) Specific instances of conduct. Specific instances of the conduct of a witness, for the purpose of attacking the witness’ credibility, if probative of untruthfulness, many be inquired into on cross-examination of the witness and, in the discretion of the court, may be proved by extrinsic evidence. When a witness testifies to the character of another witness under subsection (a), relevant specific instances of the other witness’ conduct may be inquired into on cross-examination but may not be proved by extrinsic evidence.
The giving of testimony, whether by an accused or by any other witness, does not operate as a waiver of the witness’ privilege against self-incrimination when examined with respect to matters which relate only to credibility.
The fact that Gallagher specifically objected to some other testimony tangentially related to what happened during the 404(b) incidents underscores the limited scope of the circuit court's ruling and demonstrates that had Gallagher objected, the circuit court may well have excluded the evidence. As noted above, at the motion in limine hearing, Gallagher specifically objected to the testimony about his mental health, and the court excluded it. Similarly, during opening statements, the State told the jury that the Normans obtained a protection order, and the defense promptly objected. The court sustained the objection and struck the State's comment. Had Gallagher made the same objection to the testimony about the Normans’ fear and other protective measures, the circuit court would have had the opportunity to make a similar ruling.
The Majority notes that "other bad acts are not admissible to prove an element when the element is not disputed in the evidence of the case." Majority at 146 Hawai'i at 471 n.9, 463 P.3d at 1128 n.9.
I disagree with the Majority's proposition that issues like identity, to which Gallagher did not stipulate, were not disputed in evidence. An element of a crime is no longer at issue when a defendant stipulates to that element. See State v. Ui, 142 Hawai‘i 287, 294, 418 P.3d 628, 635 (2018) (holding that a criminal defendant waives the right to have all elements of an offense proven beyond a reasonable doubt when the defendant stipulates to one or more elements).
The Majority asserts that Gallagher's identity was not at issue because Gallagher's defense attorney identified Gallagher as the assailant during opening statements, because the State presented a video of the vehicle being attacked, and because Gallagher admitted that he attacked the vehicle.
First, defense counsel's opening statement identifying Gallagher is not evidence. See State v. Greyson, 70 Haw. 227, 232 n.4, 768 P.2d 759, 762 n.4 (1989) ("The opening statement merely provides the opportunity to advise and outline for the jury the facts and questions to be posed during the trial but is not evidence.") (internal citations omitted). The State's burden to prove all elements remains, notwithstanding defense counsel's opening statements, in part because the prosecutor cannot know what evidence will be presented during the defense's rebuttal. At that point, the prosecutor cannot know whether or not the defendant will testify or what the defendant will say if the defendant does testify.
Here, identity was in dispute notwithstanding Gallagher's admission because during the State's case-in-chief the prosecutor did not know if Gallagher would ultimately testify or what he would say if he took the stand. Gallagher could have, for example, taken the stand and denied having been the person who kicked the car.
Nor does video of the attack on the vehicle render the element of identity "not disputed." The video came from home surveillance footage that was taken at around 10:00 p.m. The jury could have determined that the person in the video was not Gallagher. Indeed, as the Chief Justice's dissenting opinion observes, the jury in this case questioned Gallagher's identity. Recktenwald Dissent at 146 Hawai'i at 483, 463 P.3d at 1140.
By concluding that the strength of the video evidence rendered a non-stipulated element established, the Majority improperly steps into the role of the fact finder, who was still tasked with determining, at the close of trial, whether the State did or did not prove the identity of the perpetrator. In light of the State's ongoing burden to prove every element of the crime to which Gallagher did not stipulate, those elements were at issue in evidence. In a criminal prosecution, it defies logic to require the State to prove certain elements while simultaneously considering them not at issue.
Moreover, even if those elements are not at issue, the prior acts evidence that was introduced in this case is distinguishable from the prior acts evidence discussed by the three cases to which the Majority cites because, in addition to showing identity, the prior act evidence in this case is highly probative of an issue that is in dispute - intent. Contra, Majority at 146 Hawai'i at 471 n.9, 463 P.3d at 1128 n.9, citing State v. Calara, 132 Hawai‘i 391, 403, 322 P.3d 931, 943 (2014) ("In this case, the statements were not probative of any other fact that was of consequence to Calara's case."); State v. Veikoso, 126 Hawai‘i 267, 270 P.3d 997 (2011) (holding that the ICA erred in determining prior act evidence was admissible to show identity and modus operandi because neither identity nor modus operandi were at issue); State v. Castro, 69 Haw. 633, 644, 756 P.2d 1033, 1041-42 (1988) (holding that prior act evidence was inadmissible to show identity because identity was not disputed, but that it was inadmissible to show intent because there was adequate alternative proof). In other words, the fact that one purpose for which the evidence is introduced is to prove an element not in dispute does not automatically render that evidence inadmissible if the evidence tends to prove another element that is in dispute, in this case, intent. A reason other than lack of dispute must exist to render the evidence inadmissible.
"It is not the judge's responsibility to sever the bad parts if some are good." 1 Kenneth S. Broun, et al., McCormick on Evidence § 52. Here, Gallagher only alerted the court that admitting the prior incidents might violate HRE 403 and 404(b) – not that he contested the admission of the Normans’ reaction to Gallagher's conduct. This puts the impact testimony outside the scope of the circuit court's 404(b) ruling. "Thus even though the appellant has raised the proper ground, if the evidence he wishes to target on appeal is not the same evidence to which the objection was directed at trial, the objection is not preserved." 21 Charles Allen Wright, et al., Fed. Prac. & Proc. Evid. § 5036.6 (2d ed.).
Because Gallagher did not preserve his objection to the impact testimony, I disagree with the majority that any error in the admission of that testimony is grounds for reversal. Further, because I conclude that the only testimony Gallagher objected to – evidence of his conduct during the prior incidents – was admissible as probative of his intent and identity, Gallagher's conviction should be affirmed. Accordingly, I respectfully dissent.
DISSENTING OPINION BY NAKAYAMA, J.
Petitioner/Defendant-Appellant John Leslie Gallagher (Gallagher) was convicted by a jury of one count of criminal property damage in the second degree. The charge for which Gallagher was convicted stemmed from a 2013 incident in which Gallagher kicked a truck that belonged to the complaining witnesses Jessica Norman (Ms. Norman) and Garron Norman (Mr. Norman) (collectively, the Normans) numerous times while it was parked in the Normans’ driveway.
At trial, Ms. Norman testified that this event was not an isolated incident and described four prior incidents in which Gallagher harassed and threatened her in the six months leading up to the criminal property damage. Ms. Norman also testified that she was afraid of Gallagher and feared for her life.
The issue on appeal is whether the probative value of the prior acts evidence was substantially outweighed by the danger that it would unfairly prejudice Gallagher.
In vacating the ICA's judgment on appeal and remanding the case to the circuit court, the Majority holds that the circuit court abused its discretion in erroneously admitting unfairly prejudicial evidence of Gallagher's prior acts and that the admission of this evidence was not harmless beyond a reasonable doubt. I respectfully disagree.
The evidence of Gallagher's prior bad acts was highly probative of his state of mind at the time he attacked the Normans’ truck and of his intent to cause, or knowledge that he was causing, more than $1,500.00 worth of damage to the vehicle. By comparison, this evidence was not prejudicial because Gallagher's behavior, which involved screaming obscenities and making obscene gestures at the Normans’ home, is not the type that tends to "rouse overwhelming hostility in the minds of the jurors" and because the circuit court issued multiple instructions advising the jury that it could only use the evidence for a limited permissible purpose.
Based on the record of Gallagher's trial, I conclude that the circuit court correctly admitted evidence of Gallagher's prior bad acts, but that the circuit court erred in allowing Ms. Norman to testify about her fear of Gallagher. Ms. Norman's fear is not relevant to any element of the crime for which Gallagher was on trial, and therefore should have been excluded pursuant to Hawai‘i Rules of Evidence (HRE) Rule 4011 . However, there is no reasonable possibility that the circuit court's admission of Ms. Norman's testimony that she was afraid might have contributed to Gallagher's conviction because it had no bearing on Gallagher's subjective intent to damage the vehicle – the main issue at trial. Therefore, this error is, in my opinion, harmless beyond a reasonable doubt.
Accordingly, I would affirm the ICA's judgment on appeal.
I. BACKGROUND
Respondent/Plaintiff-Appellee the State of Hawai‘i (the State) charged Gallagher with criminal property damage in the second degree in violation of Hawai‘i Revised Statutes (HRS) § 708-821(1)(b)2 after a September 15, 2013 incident in which he kicked the Normans’ vehicle multiple times while it was parked in the Normans’ driveway. Gallagher pled not guilty.
Before trial, Gallagher filed a motion in limine seeking to preclude the State from introducing evidence of prior incidents involving Gallagher and the Normans. In response, the State filed a "Notice of Intent to Rely on Evidence Pursuant to Rule 404(b)[ 3 ] and Rule 608(b)[ 4 ] of the Hawaii Rules of Evidence" stating its intent to raise the prior incidents. The prior incidents resulted in the creation of six police reports for harassment, harassment by stalking, trespass, criminal tampering, and disorderly conduct between March and September of 2013. At a hearing on the motion, the State argued that it intended to use the evidence of Gallagher's prior bad acts to show that Gallagher's attack of the Normans’ vehicle was not an isolated incident, an accident, or a mistake, but that the prior bad acts culminated in Gallagher committing criminal property damage. The circuit court denied Gallagher's motion to exclude the evidence and held that the prior incidents were admissible pursuant to HRE Rule 404(b).
Trial began on August 25, 2014. During opening statements, the State described Gallagher's aggressive behavior toward the Normans during the six months leading up to the criminal property damage incident. The State informed the jury that the Normans "had never seen [Gallagher] until one day he showed up unannounced at their house[,]" thus beginning "the six-month odyssey that, essentially, culminated on the night of September 15, 2013[.]" The State also explained that, as a result of Gallagher's behavior, the Normans filed numerous police reports, tinted the windows of their home, and installed an alarm and video surveillance system.
The State told the jury that the evidence would show that on September 15, 2013, Gallagher "charged up the driveway" swearing, then kicked the Normans’ vehicle at least six times on the passenger side and several times on the driver's side.
In Gallagher's opening statement, he asserted that the only issue in dispute was the amount of damages that he intended to cause and that he did not intend to cause more than $1,500.00 worth of damages.
The State then called Ms. Norman to testify. Ms. Norman testified that she first interacted with Gallagher on March 24, 2013. Gallagher renewed his HRE Rule 404(b) objection and a bench conference ensued. During the bench conference, the circuit court stated:
[I]n the Court's view, in light of the nature of the incident and the fact that a person who is not an acquaintance of the complaining witness appears and
damages one's property, the Court's view is the probative value of that far outweighs any prejudicial effect. Otherwise, there really would be no sense to this entire incident.
In the Court's view, if the fact – the only issue is one of intent, in terms of extent of damage. The prior instances are extremely highly probative in terms of one's intent to cause the kind of damage that was allegedly caused.
Also, it is argued that the other elements of the offense are not an issue here, and while the opening statements suggest that – that's not evidence – the prosecution bears the burden for each and every element. Each and every element of the offense must be proven beyond a reasonable doubt by the prosecution.
The circuit court then instructed the jury that it was only permitted to consider the evidence of prior incidents for a limited purpose. The circuit court cautioned the jury with the following statement:
Ladies and gentlemen of the jury, you are about to hear evidence that the Defendant allegedly at another time may have engaged in other acts, wrongs, or crimes. This evidence, if believed by you, may be considered only on the issue of the Defendant's motive to commit the offense charged, opportunity to commit the offense charged, intent to commit the offense charged, preparation to commit the offense charged, plan to commit the offense charged, and identity of the person who may have or allegedly committed the offense charged.
Do not consider the evidence for any other purpose. You must not use the evidence to conclude that because the Defendant allegedly at another time may have engaged in or committed another crime, wrong, or act, that he is a person of bad character and, therefore, must have committed the offense charged in this case.
In considering the evidence for the limited purpose for which it has been received – or will be received, I should say – you must weigh it in the same manner as you would all other evidence in the case and consider it along with all other evidence in the case, bearing in mind that the Court has admitted the evidence for a limited purpose and not for the purpose of you concluding that the Defendant was a person of bad character and, therefore, must have committed the offense charged in this case, Criminal Property Damage in the Second Degree being the offense charged in this case.
Ms. Norman continued to testify, and recounted four previous interactions with Gallagher. First Ms. Norman testified that on March 24, 2013, the first interaction she ever had with Gallagher, he approached her house. She opened the door and asked if he needed help with anything, and Gallagher began screaming at her and being "frantic with his hands." Gallagher screamed "[y]ou're not going to have your job by next week. You hear me. You're not going to have your job[.]" Scared, Ms. Norman closed the door and called the police. She later filed a police report about the incident.
Ms. Norman stated that on May 9, 2013, she heard yelling from the street and noticed Gallagher yelling at her neighbor. When Gallagher saw Ms. Norman watching, he began screaming "Fuck you. Fuck you. Fuck you[,]" and ran toward her house. Ms. Norman again called the police.
Ms. Norman testified that on August 16, 2013, she looked out her window to see a car blocking her driveway. She noticed that the car's occupant was shaking his fist at her house and giving the house "the finger." As he sped off, Ms. Norman realized that it was Gallagher. Ms. Norman went to get her phone, and when she returned to the window, she saw that Gallagher had come back to the front of her house.
Finally, Ms. Norman recounted how, on September 4, 2013, Gallagher again blocked her driveway with his car, then "he backed up acting as if he was going to speed and just ram into the driveway with the cars, just kind of making erratic movements in the driveway." Gallagher continued to make strange movements with his car, then sped off. Ms. Norman testified that she made six police reports about Gallagher during the six-month period from March 2013 to September 2013.
Ms. Norman stated that the events she described had made her feel terrified, and that she and her husband were afraid for their lives. In response to Gallagher's actions, Ms. Norman testified that she and her husband installed alarm and surveillance systems and tinted the windows of their garage and the ground floor of their home.
Ms. Norman then described the events of September 15, 2013, the night of the incident at issue. She stated that she was watching television with her husband and their dog when the dog began to bark. She and Mr. Norman went to the lanai to see what was happening and saw Gallagher "running full speed towards the house screaming Fuck you. Fuck you, you son of a bitch. Fuck you." Ms. Norman testified that Gallagher "started wailing on the car" with his feet and hands, hitting it between fourteen and sixteen times, so hard that it sounded like Gallagher was using a baseball bat. Gallagher then "flipped the house the bird" and left.
The State then published to the jury a video of the incident, in which Ms. Norman identified Gallagher as the perpetrator.
Next, the State called Ms. Norman's husband, Mr. Norman. Mr. Norman testified that he knew Gallagher "[f]rom a series of escalating events that were taking place at [the Normans’] residence."
Mr. Norman stated that on September 15, 2013, he heard the dog frantically barking and Ms. Norman told him that Gallagher was there. Gallagher began screaming obscenities at them and appeared to be coming to the front door. Mr. Norman recounted how he pulled Ms. Norman inside the house and locked the door, grabbed mace and a baseball bat, and instructed Ms. Norman to call the police. Mr. Norman then identified photos of his pickup truck, which depicted dents that were inflicted on the night of the incident. Mr. Norman described multiple large dents that were two to four inches deep, then testified that Gallagher had caused the damage. Mr. Norman explained that he eventually received $2,536.26 from his insurance provider, including his $500 deductible.
Gordon Yoshizawa, the owner of an auto repair shop, testified that he inspected the vehicle after the incident and estimated the repair cost to be $4,583.04. Matthew Little, the automotive damage specialist for the Normans’ insurance company, testified that he also inspected the vehicle and estimated the repair cost to be $3,036.26. The State rested.
Gallagher testified on his own behalf. Gallagher admitted that on the night of the incident, he "lost [his] composure" and kicked the Normans’ truck. Gallagher stated that he was wearing cross-trainer sneakers at the time he kicked the truck. Gallagher asserted that he did not intend to do "extensive damage" to the truck and that he only kicked the truck a couple of times, with the inside of his foot. Gallagher testified that he "put a couple scuff marks in it." Gallagher explained that he has a degree in automotive technology and that he would estimate that he only did $300 to $400 worth of damage to the vehicle.
After the conclusion of evidence, the circuit court read the jury instructions. The circuit court again instructed the jury that "[s]everal times during the trial I told you that certain evidence was allowed into this trial for a particular or limited purpose. When you consider that evidence, you must limit your consideration to that purpose." The circuit court specified,
[y]ou have heard evidence that the defendant at another time may have engaged in other crimes, wrongs, or acts. This evidence, if believed by you, may be considered only on the issue of defendant's motive to commit the offense charged, opportunity to commit the offense charged, intent to commit the offense charged, preparation to commit the offense charged, plan to commit the offense charged, or identity as to the person who committed the offense charged.
Do not consider this evidence for any other purpose. You must not use this evidence to conclude that, because the defendant at another time may have engaged in other crimes, wrongs, or acts, that he is a person of bad character and, therefore, must have committed the offense charged in this case.
The jury convicted Gallagher of criminal property damage in the second degree and the circuit court sentenced him to five years’ imprisonment.
II. DISCUSSION
I disagree with the Majority's conclusion that the prejudicial effect of presenting evidence of Gallagher's prior acts substantially outweighed its probative value.
As a threshold matter, every element of the charged offense was "at issue" for purposes of its admission under HRE Rule 404(b) and the subsequent HRE Rule 403 balancing test. The Majority asserts that because "Gallagher's identity, actions, and general intent to do damage were not disputed[,]" the prior acts were "relevant only to demonstrate the degree of Gallagher's hostility toward the Normans and thereby increase the likelihood that he intended to do significant damage to their property." Majority at 146 Hawai'i at 471, 463 P.3d at 1128.
I believe that this statement mischaracterizes the scope of the prosecutor's burden at trial and undermines the probative value of the past act evidence. As the ICA noted, Gallagher did not stipulate to any element of the charged offense. Therefore, notwithstanding Gallagher's assertion that he would not contest certain elements, such as his identity, the State had the burden to prove each element beyond a reasonable doubt at trial. The only way to prove each element was by presenting evidence of each element, which was aided by the introduction of probative past act evidence. Therefore, I disagree with the Majority's repeated refrain that the only issue at trial was whether Gallagher intended to cause or was aware that he was causing more than $1,500.00 of damage. Evidence of any element of the crime is probative for purposes of this analysis.5
In light of this, and even assuming that Gallagher's intent to cause $1,500.00 in damage was the only element at issue, the circuit court did not abuse its discretion in admitting evidence of the four prior incidents because the danger of prejudice did not substantially outweigh the evidence's probative value. See State v. Cordeiro, 99 Hawai‘i 390, 404, 56 P.3d 692, 706 (2002).
Under HRE Rule 403, relevant evidence "may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice[.]" (emphasis added). We have also stated that, in weighing the probative value versus prejudicial effect in this context, a court must consider a variety of factors, including:
the strength of the evidence as to the commission of the other crime, the similarities between the crimes, the interval of time that has elapsed between the crimes, the needs for the evidence, the efficacy of alternative proof, and the degree to which the evidence probably will rouse the jury to overmastering hostility.
State v. Behrendt, 124 Hawai‘i 90, 106, 237 P.3d 1156, 1172 (2010) (quoting State v. Renon, 73 Haw. 23, 38, 828 P.2d 1266, 1273 (1992) ).
The Majority considers these factors and concludes that the prejudicial effect substantially outweighs the probative value. Respectfully, I disagree. All of the factors support the circuit court's determination that the past act evidence was more probative than prejudicial.
I agree with the Chief Justice that
[e]vidence of Gallagher's conduct was relevant to show the extent of his hostility toward the Normans, making it more likely that he intended to cause serious property damage when he kicked their vehicle. And, as no other evidence existed that demonstrated his extreme antagonism toward the Normans, there was a significant need for such evidence.
Recktenwald Dissent at 146 Hawai'i at 482, 463 P.3d at 1139. Accordingly, I believe that the circuit court correctly concluded that the probative value outweighed the prejudicial effect and that the circuit court did not abuse its discretion.
First, I agree with the Majority that the first factor, the strength of evidence as to commission of the other crime, "does not weigh against admittance." Accord Majority at 146 Hawai'i at 470, 463 P.3d at 1127; see Behrendt, 124 Hawai‘i at 106, 237 P.3d at 1172 ("The strength of the evidence of the uncharged conduct is essentially the same as for the charged offenses, since the State relied primarily on the testimony of [the complaining witness.]").
The second and third factors, which are often analyzed together, also indicate that the probative value of the past incidents evidence outweighs its potential prejudice. The Majority posits that, "the closeness in time and alleged similarity between the prior acts and the incident giving rise to this case is at most only marginally probative of this point." Majority at 146 Hawai'i at 471, 463 P.3d at 1128. Noting that the Majority admits that the closeness in time and similarity between the acts is probative of "the degree of Gallagher's hostility toward the Normans and ... the likelihood that he intended to do significant damage to their property[,]" I disagree that these factors are only "marginally probative[.]" Contra Majority at 146 Hawai'i at 471, 463 P.3d at 1128.
The prior incidents are similar to the incident at issue because all were acts of extreme aggression that Gallagher directed toward the Normans at their home. The Majority acknowledges these similarities, but asserts that because none of the prior incidents involved the destruction of property , the prior incidents have no bearing on Gallagher's awareness or knowledge of the extent of the damage he was inflicting. Majority at 146 Hawai'i at 471, 463 P.3d at 1128. In my view, the prior incidents were clearly related to and exemplary of Gallagher's intent to seriously damage the Normans’ vehicle on the night of the incident. The prior acts, which involved screaming obscenities at Ms. Norman, threatening Ms. Norman, running toward the house, making obscene gestures at the house, and making erratic movements with Gallagher's car, all demonstrate the degree of hostility Gallagher expressed toward the Normans. These events are highly probative of Gallagher's intent to cause serious damage to the Normans’ truck because of this hostility. The prior incidents demonstrate that Gallagher's attack of the truck was not a random kick to a vehicle that happened to be in Gallagher's path at the moment he became upset, but was the culmination of an escalating pattern of extreme aggression toward a specific couple.
Ms. Norman testified, however, that on September 4, 2013, Gallagher "backed up acting as if he was going to speed and just ram into the driveway with the cars[.]"
The prior acts evidence was not introduced to show Gallagher's character as a generally hostile person, as the circuit court instructed the jury three times. The prior incidents show Gallagher's specific hostility toward the Normans, which is probative of his intent to cause serious damage to their property. Therefore, as noted throughout this opinion, the prior acts evidence is admissible for at least one of the permissible purposes set forth by HRE Rule 404(b).
The Majority observes that the Normans’ testimony that the prior incidents were "a series of escalating events" that "could have been characterized by the prosecutor's questions as unwanted encounters, unprompted altercations, or any number of other terms" and implies that they should have been so characterized. Majority at 146 Hawai'i at 473, 463 P.3d at 1130. Though it is the trial court's duty to exclude unduly prejudicial testimony, neither the trial court nor the appellate court should dictate the exact wording of a complaining witness's testimony or reframe how the State presents its case.
The third factor, the interval of time that has elapsed between the past acts and the incident at issue, also favors the probative value of the evidence. All six of the Normans’ interactions with Gallagher took place over a six-month period, including the incident in which Gallagher attacked the Normans’ truck. This indicates that the prior events were probative of Gallagher's intent at the time of the incident at issue, as opposed to unrelated, random events.
In fact, the Majority states that "a close connection in time and nature is highly probative only because it increases the likelihood that the same actor committed both instances of misconduct," Majority at 146 Hawai'i at 472, 463 P.3d at 1129 (emphasis added), but this proximity "may also increase the likelihood that a jury will consider the previous conduct to conclude that the defendant has a propensity for committing such acts, which is a prohibited inference." Majority at 146 Hawai'i at 472, 463 P.3d at 1129. Again, I disagree that a close connection in time and nature is only probative of identity. In this case, it is also probative of Gallagher's intent to cause serious damage to the vehicle. Gallagher's recent acts of aggression toward the Normans demonstrate his state of mind at the time he attacked their vehicle.
The high probative value of factors two and three is not negated by the potential for improper use by the jury because the circuit court gave multiple limiting instructions that specifically instructed the jury not to make a prohibited inference. We have held that "any harm or prejudice resulting to the defendant [from improper remarks] can be cured by the [circuit] court's instruction to the jury, because it will be presumed that the jury adhered to the circuit court's instructions." State v. Kassebeer, 118 Hawai‘i 493, 519, 193 P.3d 409, 435 (2008) (quotations omitted) (brackets in original). This concept extends to a circuit court's limiting instruction as well, and we must therefore presume that the jury heeded the circuit court's limiting instructions in this case. In sum, the Majority's arguments with respect to factors two and three are unavailing, as those factors indicate that the prior incidents carry significant probative value and little danger of prejudice.
The circuit court admonished the jury that it could not use evidence of Gallagher's prior bad acts to conclude that he is a person of bad character, and therefore guilty, at the beginning of Ms. Norman's testimony and twice after the conclusion of evidence.
The Majority states that reliance on the circuit court's limiting instruction to the jury is "misplaced" because that instruction was "plainly incorrect." Majority at 146 Hawai'i at 476, 476–77, 463 P.3d at 1133, 1133–34.
Respectfully, the circuit court's limiting instruction was not plainly incorrect. While the Majority notes that evidence of prior acts cannot be admitted for the sole purpose of proving issues that are not in dispute, prior act evidence can be admitted if it is relevant to and probative of an issue that is in dispute – here, intent. If, as the Majority contends, issues such as motive, opportunity, preparation, plan, and identity were not disputed, the jury's consideration of admissible prior act evidence for these purposes is harmless. The reason that prior bad act evidence is not admissible to prove issues not in dispute is that, in that instance, the evidence is not relevant but still prejudices the defendant. See Castro, 69 Haw. at 644, 756 P.2d at 1041. Here, the evidence is relevant to Gallagher's intent and has substantial probative value. Therefore, the prejudice to the defendant that exists whenever prior bad acts are introduced is outweighed by its probative value with respect to intent, and the jury's consideration of the evidence for issues not in dispute is harmless.
The Majority identifies no error in the portion of the jury instruction instructing the jury not to use the prior act evidence to infer that Gallagher was a person of bad character and therefore committed the crime. However, the Majority implies that because the first part of the instruction is, in the Majority's view, incorrect, we must disregard the effect of the entire instruction. Thus, the Majority appears to institute a new rule that if one part of a jury instruction is incorrect, the entire instruction must be disregarded. The Majority provides no support for this new rule. Therefore, even if the court's instruction that the jury could consider the prior act evidence for identity and other issues was wrong, as the Majority contends, we must presume that the jury adhered to the character evidence portion of the circuit court's instruction. See Kassebeer, 118 Hawai‘i at 519, 193 P.3d at 435.
Factor four, the need for the evidence, supports the probative value of the prior acts evidence because the only evidence available to show Gallagher's intent to seriously damage the vehicle was the Normans’ testimony regarding Gallagher's previous displays of hostility. The Majority argues that "the State could have elicited a much less elaborate recounting of the prior incidents, greatly limiting testimony to the aspects of the incidents that bore on Gallagher's state of mind." Majority at 146 Hawai'i at 473, 463 P.3d at 1130. Further, the Majority contends that the circuit court should have limited the number of prior incidents to the "minimum sufficient" to obtain the probative value and that four prior incidents exceeded that minimum. Majority at 146 Hawai'i at 473, 463 P.3d at 1130.
The Majority does not support its assertion that evidence of four prior incidents, in this case, exceeds the minimum number that would be sufficient.
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The prior events were important to show context and to explain the intent behind Gallagher's conduct. This court analyzed the six balancing test factors in State v. Behrendt, and concluded that the probative value of prior, uncharged acts of sexual abuse which took place in South Dakota was not substantially outweighed by prejudicial effect in the trial over Hawai‘i-based sexual assaults of the same complaining witness. 124 Hawai‘i at 108, 237 P.3d at 1174. In analyzing the "need for the evidence" factor, this court held that there was a substantial need for evidence of Behrendt's sexual abuse of the complaining witness when they were living together in South Dakota because, without it, it would have been "inexplicable" to the jury that "Behrendt would suddenly engage in [sexual abuse] after having lived in close proximity to [the complaining witness] for three years." Id. at 106-07, 237 P.3d at 1172-73. Similarly, here the evidence that Gallagher engaged in increasingly hostile behavior toward the Normans in the months leading up to the incident at issue demonstrates that Gallagher's attack of the truck was not random – it was the culmination of an escalating pattern of extreme aggression toward the Normans. This context was critical to demonstrate to the jury that Gallagher intended to cause more than $1,500.00 worth of damage as opposed to minimal damage.
The fifth factor, the efficacy of alternative proof, further weighs in favor of the prior acts’ probative value. The Majority argues that the Normans’ testimony about the attack, the video of the attack, and photographs of and testimony regarding the resultant damage provide alternative proof of Gallagher's intent to seriously damage the car. However, the Majority's proffered alternative proof is ineffective to show Gallagher's intent. First, Gallagher testified, in direct contradiction to the video, that he did not kick the vehicle hard or many times and that he did not intend to cause more than $1,500.00 worth of damage.
Again, this court's analysis of the balancing test factors in Behrendt prove useful. There, analyzing factor five, this court held that "the efficacy of alternative proof [factor], also weighs in favor of admitting the South Dakota evidence [of sexual abuse]. There was no alternative way to establish the progression of Behrendt's behaviors[.]" 124 Hawai‘i at 107, 237 P.3d at 1173. This court further explained that evidence of sexual abuse in Hawai‘i "would be likely to confuse rather than enlighten the jury absent the context provided by the prior conduct in South Dakota." Id. Here too, Gallagher's prior acts provide critically important context, which could not be established by alternative proof, that shows the progression of Gallagher's behavior and his likely state of mind at the time he attacked the Normans’ truck. Like in Behrendt, without evidence of Gallagher's prior hostility toward the Normans, the incident would not make sense to the jury and there would be little to indicate that Gallagher intended to seriously damage the vehicle.
The final factor, the degree to which the evidence probably will rouse the jury to overmastering hostility, does not tip the scales of the HRE Rule 403 analysis such that the prior acts evidence is unduly prejudicial. The Majority opines that "[t]he testimony was virtually certain to elicit from the jury strong sympathy for the Normans and animus toward Gallagher for the fear and unwarranted disruption Gallagher's ongoing behavior had caused in the Normans’ lives[.]" Majority at 146 Hawai'i at 474, 463 P.3d at 1131. Evidence of prior bad acts will, without exception, portray the defendant in a negative light to the jury – that is the nature of such evidence. However, the circuit court's limiting instructions explicitly instructed the jury not to consider the prior act evidence for the improper purpose of viewing Gallagher as "a person of bad character and, therefore, [a person who] must have committed the offense charged in this case."
Moreover, in addition to the circuit court's multiple limiting instructions, Gallagher's prior acts, which include cursing at, yelling at, and making obscene gestures at the Normans’ home, are not the kinds of behaviors that seem in danger of rousing the jury to "overmastering hostility" toward the defendant. In Behrendt, for example, this court held that evidence that Behrendt sexually abused the complaining witness when she was between eleven and fourteen years old, while Behrendt was married to the complaining witness's sister, sometimes while Behrendt, the complaining witness, and her sister were sleeping together in the same bed, "was not likely to rouse the jury to an overmastering sense of hostility against Behrendt." 124 Hawai‘i at 107, 237 P.3d at 1173. If repeated sexual abuse of a minor is not likely to rouse the jury to an overmastering hostility, it is significantly less likely that evidence of a man screaming obscenities at an adult witness will do so. Though Gallagher's behavior was of a distinctly different nature from the crimes perpetrated in Behrendt, comparison of the two cases demonstrates that the appellate court should not assume that the jury cannot face evidence of bad behavior without being roused to overmastering hostility toward the defendant.
Each of the six factors weighs in favor of the circuit court's determination that the evidence of Gallagher's prior encounters with the Normans had probative value that was not substantially outweighed by the danger of unfair prejudice. Though the Majority roots its opinion in existing case law, the Majority's holding that the prejudicial effect of the prior act evidence substantially outweighs its probative value is essentially a judgment call. The fact remains that, as the Majority concedes, the prior act evidence was relevant to Gallagher's intent and had some degree of probative value. There is nothing to indicate that the admission of the prior act evidence in this case would rouse the jury to overmastering hostility.
In my view, the circuit court did not err in admitting evidence of Gallagher's prior aggression toward the Normans. I believe that the Majority did not afford the circuit court its due deference when it concluded that the circuit court abused its discretion. Rather than determining whether the circuit court abused its discretion, the Majority decided what it would have done sitting as the circuit court judge in this case.
The circuit court did err by allowing Ms. Norman to testify about her fear of Gallagher, but this error was harmless beyond a reasonable doubt. "A defendant's conviction will not be overturned if a court commits an error that is harmless beyond a reasonable doubt. However, an error is not harmless if there is a reasonable possibility that [the] error might have contributed to the conviction." State v. Levell, 128 Hawai‘i 34, 41, 282 P.3d 576, 583 (2012) (citations and quotations omitted) (brackets in original).
Ms. Norman's fear was neither relevant to nor probative of Gallagher's actions or intentions. Therefore, pursuant to HRE Rule 401, the circuit court erred in admitting this testimony. However, for this same reason, this error was harmless beyond a reasonable doubt, because there is not a reasonable possibility that it contributed to Gallagher's conviction. Gallagher's defense was that he did not intend to cause $1,500.00 worth of damage. The Majority repeatedly asserts that Gallagher's intent was the sole issue at trial. Ms. Norman's fear of Gallagher had no bearing on Gallagher's intent to damage the vehicle, and her testimony about her fear did not weaken Gallagher's defense or detract from his credibility. To the extent that Ms. Norman's testimony could be taken by the jury to indicate that Gallagher is a person of bad character, the court issued multiple instructions cautioning the jury not to use Ms. Norman's testimony for that purpose. It is clear to me, therefore, that the circuit court's admission of Ms. Norman's testimony concerning her fear of Gallagher was harmless beyond a reasonable doubt.
III. CONCLUSION
The Normans’ testimony about four prior incidents in which Gallagher harassed and threatened them at their home was admissible under HRE Rule 404(b) as probative of motive, opportunity, intent, preparation, plan, knowledge, identity, modus operandi, or absence of mistake or accident. These incidents, which represent a pattern of increasingly aggressive behavior, were highly probative of Gallagher's state of mind at the time he attacked the Normans’ truck – namely, that he intended to cause or was aware that he was causing more than $1,500.00 in damage to the truck.
I disagree with the Majority's opinion that the danger of unfair prejudice to Gallagher when the circuit court allowed the State to introduce evidence of the prior acts substantially outweighed its probative value. In my view, assessing the six factors a court must consider when weighing probative value versus prejudicial effect, the probative value of the prior acts evidence significantly outweighs its potential prejudicial effect.
While an appellate court can endeavor to reevaluate the effect of evidence presented at trial, the trial court is far better suited to make this determination, and its determination will not be set aside absent abuse of discretion. See Cordeiro, 99 Hawai‘i at 404, 56 P.3d at 706. In this case, I cannot agree that the circuit court abused its discretion in permitting the Normans to testify about Gallagher's prior acts.
I would hold that the circuit court's only error was allowing the State to elicit testimony of Ms. Norman's fear of Gallagher. However, as this error was harmless beyond a reasonable doubt, I would affirm the ICA's January 30, 2018, judgment on appeal.