v.
Willenboeg
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed Intermediate Court of Appeals CAAP-XX-XXXXXXX 23-FEB-2024 07:56 AM Dkt. 120 SO NO. CAAP-XX-XXXXXXX IN THE INTERMEDIATE COURT OF APPEALS OF THE STATE OF HAWAI#I STATE OF HAWAI#I, Plaintiff-Appellee, v. MICHAEL T. WILLENBOEG, Defendant-Appellant APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT (CRIMINAL NO. 1CPC-XX-XXXXXXX) SUMMARY DISPOSITION ORDER (By: Leonard, Acting Chief Judge, Hiraoka and Wadsworth, JJ.) Defendant-Appellant Michael T. Willenborg (Willenborg) appeals from a July 23, 2019 Judgment of Conviction and Probation Sentence; Notice of Entry (Judgment) entered by the Circuit Court of the First Circuit (Circuit Court).1 Willenborg was convicted of: (1) Sexual Assault in the Third Degree, in violation of Hawaii Revised Statutes (HRS) § 707-732(1)(a) (2014), as a lesser included offense; (2) Abuse of Family or Household Members, in violation of HRS § 709-906 (1) (Supp. 2016) and (8) (2014); and (3) Abuse of Family or Household Members, in violation of HRS § 709-906 (1) (Supp. 2016) and (5) (2014).
[*40]NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
cross-examination when it denied his motion to admit videos depicting explicit sex acts between him and CW. Willenborg contends that the sex videos were relevant to his perception of CW's consent, and that their relevance clearly outweighed any prejudice.
"The scope of cross-examination is generally within the sound discretion of the trial court. While the right of cross-examination protected by the Confrontation Clause of the Sixth Amendment may not be unduly restricted, it has never been held that this right is absolutely without restriction." State v. Balisbisana, 83 Hawai#i 109, 114, 924 P.2d 1215, 1220 (1996) (cleaned up).
Here, CW testified, inter alia, that prior sexual activity with Willenborg was consensual, he wanted to take videos, he made her feel beautiful, and she did anything he wanted, including vaginal intercourse, anal intercourse, fellatio, and placing her mouth on his anus. On cross- examination, CW confirmed that she told Willenborg she "thoroughly enjoyed" whatever he enjoyed. Willenborg also testified that CW would say things that made him believe she enjoyed their various sexual activities. We conclude that there was sufficient testimony elicited for the jury to adequately gauge the past sexual behavior between CW and Willenborg and his Sixth Amendment right to cross-examination was satisfied. See id. Thus, the Circuit Court did not err in considering whether the probative value of the sex videos was substantially NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER outweighed by the danger of unfair prejudice. State v. Acacio, 140 Hawai#i 92, 99, 398 P.3d 681, 688 (2017).
[*41]We further conclude that the Circuit Court did not abuse its discretion in determining that the danger of unfair prejudice in this case was considerable, and particularly considering the other evidence in the record, the probative value of the sex videos was minimal.
Finally, we conclude that the Circuit Court did not violate Willenborg's constitutional rights or abuse its discretion in the instances where the court sustained objections to some of defense counsel's questions regarding CW's level of enjoyment of the prior sex acts between her and Willenborg.
For these reasons, the Circuit Court's July 23, 2019 Judgment is affirmed.
DATED: Honolulu, Hawai#i, February 23, 2024. On the briefs: /s/ Katherine G. Leonard Acting Chief Judge Jonathan Burge, for Defendant-Appellant. /s/ Keith K. Hiraoka Associate Judge Sonja P. McCullen, Deputy Prosecuting Attorney, /s/ Clyde J. Wadsworth City and County of Honolulu, Associate Judge for Plaintiff-Appellee.
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