NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
13-MAR-2024
08:14 AM
Dkt. 87 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI‘I
STATE OF HAWAI‘I, Plaintiff-Appellee,
v.
BYRON DEREGO, Defendant-Appellant
APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT
(CASE NO. 2CPC-XX-XXXXXXX)
SUMMARY DISPOSITION ORDER
(By: Hiraoka, Presiding Judge, Nakasone and Guidry, JJ.)
Defendant-Appellant Byron DeRego (DeRego) appeals from
the Order Denying Defendant's Motion for a New Trial, entered on
October 11, 2022, and the Judgment, Conviction and Sentence
(Judgment) entered on October 14, 2022, by the Circuit Court of
the Second Circuit (circuit court).1 On August 12, 2019, DeRego
was indicted on one count of Sexual Assault in the First Degree2
1 The Honorable Kirstin M. Hamman presided.
2 The indictment stated, in relevant part,
That on or about the 31st day of March, 2019, in the County
of Maui, State of Hawaii, BYRON DeREGO did knowingly engage
in sexual penetration with another person who is less than
(continued . . .)
NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
in violation of Hawaii Revised Statutes (HRS) § 707-730(1)(b)
(2014).3 DeRego pleaded not guilty, and the matter proceeded to
a jury trial. The jury found DeRego guilty as charged. DeRego
was sentenced to a term of twenty years imprisonment.
DeRego raises two points of error on appeal,
contending that (1) "[t]he conviction should be reversed for
prosecutorial misconduct"; and (2) "[t]rial counsels were
constitutionally ineffective[.]"
Upon careful review of the record and the briefs
submitted by the parties, and having given due consideration to
the arguments advanced and the issues raised by the parties, we
resolve DeRego's points of error as follows:
(1) We conclude that the Deputy Prosecuting Attorney
(DPA) did not commit prosecutorial misconduct. "The term
prosecutorial misconduct is a legal term of art that refers to
any improper action committed by a prosecutor, however harmless
or unintentional." State v. Conroy, 148 Hawai‛i 194, 201,
468 P.3d 208, 215 (2020) (cleaned up). We review contentions of
prosecutorial misconduct under the harmless beyond a reasonable
2(. . .continued)
fourteen (14) years old, by inserting his penis into her
vagina, thereby committing the offense of Sexual Assault in
the First Degree in violation of Section 707-730(1)(b) of
the Hawaii Revised Statutes.
3 HRS § 707-730(1)(b) (2014) provides, in pertinent part, "A person
commits the offense of sexual assault in the first degree if. . . (b) The
person knowingly engages in sexual penetration with another person who is
less than fourteen years old[.]"
2
NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
doubt standard. See State v. Mainaaupo, 117 Hawai‛i 235, 247,
178 P.3d 1, 13 (2008).
DeRego's contention that the DPA violated the circuit
court's order granting DeRego's Motion in Limine No. 23, which
instructed that "any reference by Dr. Kepler as to why the
Forensic Examination of complainant was not completed and/or any
explanations by Dr. Kepler as to complainant's emotions during
the examination be excluded," lacks merit. The record reflects
the DPA's examination of Dr. Kepler as follows,
Q [by DPA]. And as part of your exam of the child,
you do a genital exam of this child?
A [by Dr. Kepler]. Yes.
Q. And did you examine her hymen?
A. I -- I began to examine the hymen but she
resisted and cried.
[TRIAL COUNSEL]: Your Honor, could we
approach?
THE COURT: Yes.
(The following was heard at the bench.)
[TRIAL COUNSEL]: I believe prior to trial it
was agreed upon on at the motion in limines about the
crying and –- and so –-
[DPA]: That's correct. Yeah, and I told him
he –- I told him out there he shouldn't mention that. So
I –-
[TRIAL COUNSEL]: Your Honor, we want to confer
quietly with our client as to whether we need to make a
motion for mistrial if we could have five minutes. . . .
. . . .
(The following was heard at the bench.)
[TRIAL COUNSEL]: Your Honor, during the break
we conferred with Mr. DeRego. The defense will not be
requesting a motion for mistrial. We will ask that the
3
NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
last answer be stricken and have the jury instructed to
disregard the last answer. Thank you.
(The following was heard in open court.)
THE COURT: The Court will note that the Court
is striking the last statement by the witness and the jury
is instructed to disregard that statement and we can
continue with the testimony.
As the transcript reflects, Dr. Kepler provided the
unsolicited commentary regarding the complaining witness's
emotional response, and the circuit court, at the request of
DeRego's counsel, struck Dr. Kepler's response and ordered the
jury to disregard the response.4
Moreover, DeRego's contention that the DPA violated
the circuit court's order granting DeRego's Motion in Limine
No. 25, excluding evidence regarding DeRego's extradition to
Hawai‛i from Nevada, also lacks merit. The record reflects that
the circuit court ordered, with regard to Motion in Limine No.
25, "as far as [DeRego] being extradited out of state, then I
will grant the motion as to that information." The DPA's cross-
examination question to DeRego, regarding whether DeRego had a
surgical procedure performed in Nevada, was not on the subject
of DeRego's extradition. And the DPA's question to another
witness, as to whether DeRego "drive[s] around in the same
4 To the extent that Dr. Kepler's testimony constituted an improper
remark by a witness, we conclude that the statement -- which was immediately
stricken from the record, at the request of DeRego's counsel, with an
instruction to the jury to disregard the remark -- was harmless beyond a
reasonable doubt. See State v. Samuel, 74 Haw. 141, 149,
838 P.2d 1374, 1378
(1992) ("In determining whether improper remarks made by a witness
constitutes reversible error, the same analysis used for prosecutorial
misconduct is applicable.").
4
NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
Bronco [vehicle][,]" did not solicit the witness's subsequent
reference to DeRego's extradition -- i.e., "[w]hen the police
got him from the mainland[.]5 We thus conclude that the DPA's
questions were not in violation of the circuit court's in limine
rulings.
(2) With respect to DeRego's contention that he
received ineffective assistance of counsel at trial, we conclude
that the record is not sufficiently developed for this court to
address DeRego's claim that his trial counsel permitted the DPA
to "run[] roughshod[,]" and failed to move for a mistrial.
State v. Silva, 75 Haw. 419, 439,
864 P.2d 583, 592 (1993)
("[N]ot every trial record is sufficiently developed to
determine whether there has been ineffective assistance of
counsel; indeed, a defendant is often only able to allege facts
that, if proved, would entitle him or her to relief.").
We thus affirm the Judgment without prejudice to
DeRego's filing of a petition for post-conviction relief,
pursuant to Hawai‘i Rules of Penal Procedure Rule 40, to allow
for the development of a factual record as to those contentions
of ineffective assistance of counsel. Silva, 75 Haw. at 439,
864 P.2d at 592-93 ("[W]here the record on appeal is
5 To the extent that this unelicited response constituted an
improper remark by the witness, we conclude that the statement, which was
immediately stricken from the record by the circuit court with an instruction
to the jury to disregard the witness's statement, was harmless beyond a
reasonable doubt. Samuel, 74 Haw. at 149,
838 P.2d at 1378.
5
NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
insufficient to demonstrate ineffective assistance of counsel,
but where: (1) the defendant alleges facts that if proven would
entitle him or her to relief, and (2) the claim is not patently
frivolous and without trace of support in the record, the
appellate court may affirm defendant's conviction without
prejudice to a subsequent Rule 40 petition on the ineffective
assistance of counsel claim.").
DATED: Honolulu, Hawai‘i, March 13, 2024.
On the briefs:
/s/ Keith K. Hiraoka
Gerald T. Johnson, Presiding Judge
for Defendant-Appellant.
/s/ Karen T. Nakasone
Richard B. Rost, Associate Judge
Deputy Prosecuting Attorney,
County of Maui, /s/ Kimberly T. Guidry
for Plaintiff-Appellee. Associate Judge
6
