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Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
27-AUG-2026
08:04 AM
Dkt. 48 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAIʻI
DAVID H. KAAWA, IV, Petitioner-Appellant,
v.
STATE OF HAWAIʻI, Respondent-Appellee.
APPEAL FROM THE CIRCUIT COURT OF THE THIRD CIRCUIT
(CASE NO. 3PR15100007K (3PC11100277K))
SUMMARY DISPOSITION ORDER
(By: Nakasone, Chief Judge, Leonard and McCullen, JJ.)
Petitioner-Appellant David Haili Kaawa, IV, appeals
from the Circuit Court of the Third Circuit's (Rule 40 Court)
June 26, 2024 order denying his Hawaiʻi Rules of Penal Procedure
(HRPP) Rule 40 petition without an evidentiary hearing (Order
Denying HRPP Rule 40 Petition). 1
On appeal, Kaawa challenges the denial of his Rule 40
petition (Petition) without a hearing. Kaawa contends he is
1 The Honorable Robert D.S. Kim presided over the HRPP Rule 40 proceedings.
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entitled to a hearing because he presented colorable claims of
ineffective assistance of counsel and jury instruction error. 2
Upon careful review of the record and the briefs
submitted by the parties, and having given due consideration to
the issues raised and the arguments advanced, we resolve the
points of error as discussed below and vacate and remand.
The factual background of this case is detailed
extensively in this court's 2014 memorandum opinion, but a brief
2 Kaawa's points of error (POE) are presented as follows:
1. The [Rule 40 Court] erred when it failed to grant
Mr. Kaawa an evidentiary hearing based upon the
violation of Mr. Kaawa's Constitutional rights because
the [trial court] failed to give a specific unanimity
instruction and lesser included jury instruction on
Count 2. . . .
2. The [Rule 40 Court] erred when it failed to grant
Mr. Kaawa an evidentiary hearing based upon his
colorable claim of ineffective assistance of counsel
because trial counsel failed to object to the [trial
court's] failure to give a specific unanimity
instruction and lesser included jury instruction on
Count 2. . . .
3. The [Rule 40 Court] erred when it failed to grant
Mr. Kaawa an evidentiary hearing based upon his
colorable claim of ineffective assistance of counsel
because appeal counsel failed to object to the [trial
court's] failure to give a specific unanimity
instruction and lesser included jury instruction on
Count 2. . . .
4. The [Rule 40 Court] erred when it failed to grant
Mr. Kaawa an evidentiary hearing based upon his
colorable claim of ineffective assistance of counsel
because trial counsel failed to object to the illegal
consecutive sentence. . . .
5. The [Rule 40 Court] erred when it failed to grant
Mr. Kaawa an evidentiary hearing based upon his
colorable claim of ineffective assistance of counsel
because appeal counsel failed to appeal the illegal
consecutive sentence[.]
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overview is provided below. State v. Kaawa, 133 Hawaiʻi 451, 330
P.3d 389, No. CAAP-XX-XXXXXXX, 2014 WL 715713, at *1-6 (App.
Feb. 25, 2014) (mem. op.).
In 2011, a grand jury indicted Kaawa on two counts of
sexual assault for sexually abusing his ex-girlfriend's minor
daughter (Minor), over the course of several years. Kaawa, 2014
WL 715713, at *1.
Count 1 (Continuous SA — Under 14) charged Kaawa with
Continuous Sexual Assault of a Minor Under the Age of Fourteen,
in violation of Hawai‘i Revised Statutes (HRS) § 707-733.6
(Supp. 2007), 3 for engaging in three or more acts of sexual
3 HRS § 707-733.6 provides:
[§707-733.6] Continuous sexual assault of a minor
under the age of fourteen years. (1) A person commits the
offense of continuous sexual assault of a minor under the
age of fourteen years if the person:
(a) Either resides in the same home with a minor
under the age of fourteen years or has
recurring access to the minor; and
(b) Engages in three or more acts of sexual
penetration or sexual contact with the minor
over a period of time, while the minor is under
the age of fourteen years.
(2) To convict under this section, the trier of
fact, if a jury, need unanimously agree only that the
requisite number of acts have occurred; the jury need not
agree on which acts constitute the requisite number.
(3) No other felony sex offense involving the same
victim may be charged in the same proceeding with a charge
under this section, unless the other charged offense
occurred outside the period of the offense charged under
this section, or the other offense is charged in the
alternative. A defendant may be charged with only one
(continued . . .)
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contact or penetration with Minor when she was under the age of
fourteen years:
On or between the 29th day of November, 2004, and the
28th day of November, 2007, the exact dates and times being
unknown, but in a continuing course of conduct, in the
County and State of [Hawaiʻi], DAVID KAAWA, IV, a person who
resided in the same home with a minor, [Minor], who was
under the age of fourteen years, or who had recurring
access to the minor, did intentionally, knowingly, or
recklessly engage in three or more acts of sexual
penetration or sexual contact with the minor over a period
of time while the minor was under the age of fourteen
years, thereby committing the offense of Continuous Sexual
Assault of a Minor Under the Age of Fourteen Years, in
violation of Sections 707-733.5 and 707-733.6, [HRS], as
amended.
Count 2 (SA1 — Ages 14-15) charged Kaawa with Sexual
Assault in the First Degree, in violation of HRS § 707-730(1)(c)
(1993 & Supp. 2009) 4 for knowingly engaging in sexual penetration
with Minor when she was fourteen or fifteen years old:
(. . . continued)
count under this section, unless more than one victim is
involved, in which case a separate count may be charged for
each victim.
(4) Continuous sexual assault of a minor under the
age of fourteen years is a class A felony.
4 HRS § 707-730(1)(c) (1993 & Supp. 2009) provides:
§707-730 Sexual assault in the first degree. (1) A
person commits the offense of sexual assault in the first
degree if:
(c) The person knowingly engages in sexual
penetration with a person who is at least
fourteen years old but less than sixteen years
old; provided that:
(i) The person is not less than five years
older than the minor; and
(ii) The person is not legally married to the
minor[.]
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On or about the 29th day of November, 2007 and the
day of [sic] 29th day of November, 2009, DAVID KAAWA, IV,
in [Kaʻū], County and State of [Hawaiʻi], knowingly engaged
in sexual penetration with a person, [Minor], who was at
least fourteen years old but less than sixteen years old
and DAVID KAAWA, IV was not less than five years older than
the minor and not legally married to the minor thereby
committing the offense of Sexual Assault in the First
Degree, in violation of Section 707-730(1)(c), [HRS], as
amended.
During trial, Minor testified to repeated instances of
sexual assault. Kaawa denied sexually assaulting Minor. After
less than three hours of deliberation, the jury reached its
verdict of guilty on both counts. The trial court sentenced
Kaawa to a twenty-year term of imprisonment for each count, to
be served consecutively.
Trial counsel withdrew and appellate counsel was
appointed. On direct appeal, Kaawa challenged the admission of
evidence and sufficiency of the evidence. Kaawa did not
challenge the assistance of trial counsel or instructions to the
jury. This court affirmed the judgment of conviction, and the
Hawaiʻi Supreme Court denied Kaawa's application for writ of
certiorari. Kaawa, 2014 WL 715713, at *9; State v. Kaawa,
No. SCWC-XX-XXXXXXX, 2014 WL 3952678, at *1 (Aug. 12, 2014).
In 2015, Kaawa (self-represented) filed the instant
Petition. Kaawa raised three grounds for relief:
(1) ineffective assistance by trial counsel for opening the door
to damaging testimony, (2) lack of unanimity instruction as to
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Count 2 (SA1 — Ages 14-15), and (3) inaccuracies in the
presentence investigation report.
In 2019, the Rule 40 Court appointed Kaawa counsel.
Kaawa (through counsel) then supplemented his Petition,
presenting additional grounds for relief: ineffective
assistance by trial counsel for failing to object to Kaawa's
consecutive sentence and the lack of an unanimity instruction as
to Count 2 (SA1 — Ages 14-15); and ineffective assistance by
appellate counsel for failing to appeal for the same reasons.
In June 2024, the Rule 40 Court denied the Petition
without a hearing. Kaawa appealed. 5
We review a trial court's denial of an HRPP Rule 40
petition without a hearing de novo. Dan v. State, 76 Hawaiʻi
423, 427, 879 P.2d 528, 532 (1994).
The court must hold a hearing where "a petition
alleges facts that if proven would entitle the petitioner to
relief," but a hearing need not be held where the claim is
patently frivolous and without a trace of support in the record:
If a petition alleges facts that if proven would entitle
the petitioner to relief, the court shall grant a hearing
which may extend only to the issues raised in the petition
or answer. However, the court may deny a hearing if the
petitioner's claim is patently frivolous and is without
5 Kaawa's appeal was untimely, but he asked this court to accept his appeal "because the failure to timely appeal was solely due to courtappointed counsel's ineffective assistance." We accepted his appeal.
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trace of support either in the record or from other
evidence submitted by the petitioner.
HRPP Rule 40(f).
"The question on appeal of a denial of a Rule 40
petition without a hearing is whether the trial record indicates
that Petitioner's application for relief made such a showing of
a colorable claim as to require a hearing before the lower
court." Dan, 76 Hawaiʻi at 427, 879 P.2d at 532 (emphasis
omitted) (quoting State v. Allen, 7 Haw. App. 89, 92-93, 744
P.2d 789, 793 (App. 1987)). A colorable claim exists where the
petition alleges facts that, if true, "would change the verdict
[or outcome], however, a petitioner's conclusions need not be
regarded as true." Id. (quoting Allen, 7 Haw. App. at 92, 744
P.2d at 792); Quach v. State, 158 Hawaiʻi 9, 581 P.3d 1240,
No. CAAP-XX-XXXXXXX, 2025 WL 3689019, at *2 (App. Dec. 19, 2025)
(SDO), cert. denied, 2026 WL 930616, at *1 (Apr. 6, 2026).
(1) Kaawa first contends the Rule 40 Court should
have held a hearing on his Petition because the trial court
"failed to give a specific unanimity instruction" (POE 1) as to
Count 2. 6
6 Kaawa also contends the Rule 40 Court should have held a hearing on his Petition because the trial court failed to give a "lesser included jury instruction on Count 2." Kaawa, however, fails to show that there was a rational basis to acquit him of Sexual Assault in the First Degree. See State v. Flores, 131 Hawaiʻi 43, 51, 314 P.3d 120, 128 (2013) ("[J]ury instructions on lesser-included offenses must be given where there is a rational basis in the evidence for a verdict acquitting the defendant of the offense charged and convicting the defendant of the included offense.").
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"The right of an accused to a unanimous verdict in a
court of this state is guaranteed by article I, sections 5 and
14 of the Hawaiʻi Constitution." State v. Valentine, 93 Hawaiʻi
199, 208, 998 P.2d 479, 488 (2000) (citation modified) (quoting
State v. Arceo, 84 Hawaiʻi 1, 30, 928 P.2d 843, 872 (1996),
superseded in part by constitutional amendment, Haw. Const.
art. I, § 25 (2006)). As such,
"when separate and distinct culpable acts are subsumed
within a single count charging sexual assault—any one of
which could support a conviction thereunder—and the
defendant is ultimately convicted by a jury of the charged
offense, the defendant's constitutional right to a
unanimous verdict is violated" unless either the
prosecution elects the specific conduct upon which it
intends to rely to establish the conduct element of the
offense or the trial court gives the jury a specific
unanimity instruction.
Id. (emphasis omitted) (quoting Arceo, 84 Hawaiʻi at 32-33, 928
P.2d at 874-75).
Here, there were multiple bases upon which the jury
could find Kaawa guilty of Sexual Assault in the First Degree of
Minor as charged in Count 2. The jury instructions, as written
and as read, show that a unanimity instruction was not given as
to Count 2. 7 And the State does not point to where in the record
7 We note that the trial court gave an unanimity instruction specific to Count 1 (Continuous SA - Under 14):
In order for the prosecution to prove the element of
the offense of Continuing Sexual Assault of a Minor Under
the Age of 14 Years in Count 1, that the defendant engaged
in three or more acts of sexual penetration or sexual
contact with another person, [Minor], all twelve jurors
must unanimously agree that the same acts have been proven
beyond a reasonable doubt.
(continued . . .)
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it elected the specific conduct on which it relied. See Int'l
Bhd. of Elec. Workers, Loc. 1357 v. Hawaiian Tel. Co., 68 Haw.
316, 332, 713 P.2d 943, 956 (1986) ("[A]n appellate court is not
required to sift through a voluminous record for documentation
of a party's contentions.").
In other words, Kaawa's factual allegation that a
unanimity instruction was not given, if proven, would show his
constitutional right to a unanimous verdict was violated. See
Valentine, 93 Hawaiʻi at 208, 998 P.2d at 488. And because the
record appears to support Kaawa's claim that his right to
unanimous verdict as to Count 2 was violated, we cannot say his
claim is patently frivolous. See Dan, 76 Hawaiʻi at 427, 879
P.2d at 532; HRPP Rule 40(f). Thus, the Rule 40 Court erred by
denying the Petition without a hearing.
(2) Next, Kaawa contends the Rule 40 Court should
have held a hearing because he presented colorable claims that
his trial counsel and appellate counsel were ineffective. 8
(. . . continued)
This instruction reflected the caselaw that applied at the time of the offense alleged in Count I, although it did not reflect the law at the time the instruction was given in 2012. See State v. Rabago, 103 Hawaiʻi 236, 254, 81 P.3d 1151, 1169 (2003), abrogated by Haw. Const. art. I, § 25 (2006).
8 We note that Kaawa neglected to serve his opening brief on counsel who were allegedly ineffective, in contravention of Hawaiʻi Rules of Appellate Procedure Rule 28(a) ("If a brief raises ineffective assistance of counsel as a point of error, the appellant shall serve a copy of the brief on the attorney alleged to have been ineffective.").
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(a) Trial counsel (POE 2 and 4). Rule 40 proceedings
are not available where an issue raised was previously ruled on
or has been waived, and an issue is waived where it could have
been previously raised but was not:
Rule 40 proceedings shall not be available and relief
thereunder shall not be granted where the issues sought to
be raised have been previously ruled upon or were waived.
Except for a claim of illegal sentence, an issue is waived
if the petitioner knowingly and understandingly failed to
raise it and it could have been raised before the trial, at
the trial, on appeal, in a habeas corpus proceeding or any
other proceeding actually conducted, or in a prior
proceeding actually initiated under this rule, and the
petitioner is unable to prove the existence of
extraordinary circumstances to justify the petitioner's
failure to raise the issue. There is a rebuttable
presumption that a failure to appeal a ruling or to raise
an issue is a knowing and understanding failure.
HRPP Rule 40(a)(3) (emphases added).
Kaawa could have, but did not, raise as an issue on
direct appeal whether trial counsel was ineffective. See Kaawa,
2014 WL 715713, at *1. Kaawa appears to assert that he did not
raise the issue of ineffective assistance of trial counsel
because his appellate counsel was also ineffective. Thus, we
turn to whether Kaawa raised a colorable claim that appellate
counsel was ineffective.
(b) Appellate counsel (POE 3 and 5). Kaawa contends
appellate counsel failed to raise the trial court's omission of
a "specific unanimity instruction and lesser included jury
instruction on Count 2" and failed to challenge his consecutive
sentence as illegal.
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Ineffective assistance of counsel claims are colorable
where an attorney's performance falls below the level of
competence demanded of counsel for criminal defense counsel.
Briones v. State, 74 Haw. 442, 467, 848 P.2d 966, 978 (1993).
"To determine whether defense counsel rendered ineffective
assistance on appeal, a petitioner must show that counsel did
not raise an 'appealable issue,' which is an error or omission
by counsel that results in the withdrawal or substantial
impairment of a potentially meritorious defense." Batalona v.
State, 142 Hawaiʻi 84, 98, 414 P.3d 136, 150 (2018) (citing
Briones, 74 Haw. at 465-66, 848 P.2d at 977).
Kaawa first points to the omission of a unanimity
instruction as to Count 2, and appellate counsel's failure to
raise this as an issue on appeal. As discussed above, the
Rule 40 Court erred by denying the Petition without a hearing
because Kaawa raised a colorable claim as to the omission of a
unanimity instruction for Count 2. For the same reason, the
Rule 40 Court also erred by denying the Petition without a
hearing based on Kaawa's claim that appellate counsel was
ineffective for failing to raise the omission of a unanimity
instruction for Count 2. See State v. Jones, 96 Hawaiʻi 161,
166, 29 P.3d 351, 356 (2001) ("Whether we review the jury
instructions in this case for plain error by the trial court or
as an ineffective assistance of counsel claim, the ultimate
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question is whether the erroneous instructions prejudiced
Defendant's rights.").
Kaawa next points to his consecutive sentence, arguing
that appellate counsel was ineffective for failing to raise this
issue on appeal.
Two years before Kaawa was sentenced in 2012, the
Hawaiʻi Supreme Court explained in State v. Hussein that,
although we presume "a sentencing court will have considered all
factors before imposing concurrent or consecutive terms of
imprisonment under HRS § 706-606" (1993), the sentencing court
nevertheless "must state on the record at the time of sentencing
the reasons for imposing a consecutive sentence." 122 Hawaiʻi
495, 503, 510, 229 P.3d 313, 321, 328 (2010) (emphasis added).
"[R]easons identify the facts or circumstances within
the range of statutory factors that a court considers important
in determining that a consecutive sentence is appropriate," and
in so doing, "provide[] a meaningful rationale to the defendant,
the victim, and the public." Id. at 509, 229 P.3d at 327.
Accordingly, upon its entry, Hussein required circuit courts to
provide "[a]n express statement, which evinces not merely
consideration of the factors, but recites the specific
circumstances that led the court to impose sentences
consecutively in a particular case." Id.
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Here, the trial court identified the portion of the
Presentence Investigation Report that considered the HRS § 706-606 factors, read the statutory factors aloud, and summarily
stated that "[t]he Court has considered those factors":
THE COURT: Okay. The Court will receive the presentence report, which will be kept under seal.
The jury having found you guilty of Continuous Sexual
Assault of a Minor Under the Age of 14 and Sexual Assault
in the First Degree, the Court having accepted the jury's
verdict and adjudged you guilty of said offenses, the only
issue before the Court is whether the defendant shall be
sentenced to a consecutive term of imprisonment or a
concurrent term of imprisonment. The statute mandates this
Court without any discretion to sentence the defendant to
20 years for each of those counts.
Under 706-668.5, the Court, in determining whether
the terms imposed are to be ordered to run concurrently or
consecutively, shall consider the factors set forth in 706-606.
706-606, which has been considered by the probation
officer on page 17, states: "The nature and circumstances
of the offense and the history and characteristics of the
defendant; the need for the sentence imposed to reflect the
seriousness of the offense, to promote respect for the law,
and to provide just punishment for the offense; to afford
adequate deterrence to criminal conduct; to protect the
public from further crimes of the defendant; and to provide
the defendant with needed educational or vocational
training, medical care, or other correctional treatment in
the most effective manner."
The Court shall consider all of the other kinds of
sentences available and the need to avoid unwarranted
sentencing disparities among defendants with similar
records who have been found guilty of similar conduct.
The Court has considered those factors. The Court,
having sat as the trial judge in this trial, finds that the
factors leading to consecutive sentence has been satisfied.
Counter to Hussein's mandate, the circuit court did
not provide an express statement that recited the specific facts
and circumstances underlying its decision to run Kaawa's two
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twenty-years terms of imprisonment consecutively. See id. at
509, 229 P.3d at 327.
Kaawa's factual allegations that appellate counsel
failed to raise appealable issues, if proven, would establish
that appellate counsel provided ineffective assistance. See
Batalona, 142 Hawaiʻi at 98, 414 P.3d at 150. And because the
record appears to support Kaawa's claim of ineffective
assistance of appellate counsel, we cannot say his claim is
patently frivolous. See Dan, 76 Hawaiʻi at 427, 879 P.2d at 532;
HRPP Rule 40(f). Thus, the Rule 40 Court erred by denying the
Petition without a hearing.
Based on the foregoing, we vacate the Rule 40 Court's
June 26, 2024 Order Denying HRPP Rule 40 Petition and remand
this case for proceedings consistent with this summary
disposition order.
It is further ordered that by August 31, 2026, Kaawa
shall:
1. serve trial counsel Alfred P. Lerma, Jr. and
appellate counsel Richard D. Gronna with a copy
of Kaawa's opening brief; and
2. file in this case a declaration of service or
written explanation as to why it is not possible
or appropriate to do so.
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The appellate clerk shall serve a copy of this summary
disposition order on Lerma and Gronna at their addresses on file
with the Hawaiʻi State Bar Association.
DATED: Honolulu, Hawaiʻi, August 27, 2026.
On the briefs: /s/ Karen T. Nakasone
Chief Judge
R. Hermann Heimgartner,
for Petitioner-Appellant. /s/ Katherine G. Leonard
Associate Judge
Charles E. Murray III,
Deputy Prosecuting Attorney, /s/ Sonja M.P. McCullen County of Hawai‘i, Associate Judge
for Respondent-Appellee.
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