A 24-year-old man, convicted and sentenced to 30 years in 2022 for raping a 78-year-old visiting woman camping at a South Kohala beach park June 15, 2019, was set free Friday and plans to return to his home in the Midwest, his attorney says.
Zeth Robert Browder prevailed in June on an appeal before the state Supreme Court, which in a majority 3-2 split decision vacated the conviction and ordered a new trial due to prosecutorial misconduct.
Instead of going to trial, which was to begin this week, Browder chose to plead guilty Friday to the lesser crime of third-degree sexual assault.
His court-appointed attorney, Walter Rodby, negotiated a plea deal with the Honolulu Prosecutor’s Office, allowing Browder to plead to the Class C felony, punishable by up to five years.
The judge sentenced him Friday to five years with credit for time served, far short of the original 30-year sentence. Browder already had served 5-1/2 years in jail, so he was released from custody and is making arrangements to return home, Rodby said.
He also was ordered to pay $2,878.60 in restitution to the victim, and $4,027.58 to the Crime Victim Compensation Commission.
The defense was in a strong position to negotiate as the state would have been required to put the victim, now in her 80s, on the witness stand to testify at yet another trial.
The Honolulu Prosecutor’s Office, which handled the case due to an internal conflict of interest with the Hawaii County Prosecutor’s Office, had said in June that it agreed with the dissenting opinion by Justice Lisa Ginoza and Chief Justice Mark Recktenwald, and disagreed with the majority ruling by Justices Todd Eddins, Sabrina McKenna and Vladimir Devens.
The indictment said Browder, who was 18 years old at the time, attacked the woman June 15, 2019, in her tent at Spencer Beach in South Kohala.
Browder’s trial began Nov. 30, 2021, and the jury found him guilty Dec. 15, 2021, as charged on two counts of first-degree sexual assault, two counts of third-degree sexual assault, kidnapping, first-degree burglary and tampering with physical evidence.
The judgment of conviction and sentencing was filed March 29, 2022. He was sentenced to 20 years for the two counts of first-degree sexual assault, to run together, and 10 years for the remaining charges. The 20-year sentence and the 10-year sentence were to run consecutively for a total of 30 years.
Rodby filed an appeal with the Intermediate Court of Appeals April 14, 2022, asserting prosecutorial misconduct.
During the state’s closing argument at trial in March 2022, the prosecution told the jury its decision “comes to one question. Is (complaining witness) believable?” (The complaining witness is the alleged victim.)
“She’s 80 years old. She was nervous, shaking on the witness stand. She was emotional and crying. She was scared. She told you she was scared that morning. She was scared at the hospital. She was scared even a week and a half later, and she was still scared in court. This is consistent with someone who’s been traumatized.”
The ICA set aside Browder’s conviction and ordered a new trial, but not on the “traumatized” comments.
Despite the win, “we appealed to the Supreme Court” because “the ICA was still allowing certain conduct,” Rodby said. He appealed the ICA’s opinion that the “traumatized” comments did not constitute prosecutor misconduct, and instead based its decision on other comments the prosecutor made during closing arguments.
The state Supreme Court majority opinion is that the “traumatized” sentence amounts to misconduct because the prosecutor added new evidence and expressed a personal belief about the alleged victim’s credibility, undermining the defendant’s right to a fair trial.
But a dissenting opinion by Ginoza with the chief justice joining, says the term “traumatized” was not used “in a manner inferring a medical or psychological condition,” but rather it “was used in its ordinary sense.”
It said the majority decision conflicts with the court’s prior decisions that expert testimony is not required when the issues are within the common knowledge of the jury, and jurors should use “their general knowledge of how humans operate in the world.”
The opinion says the prosecutor gave evidence of four different times when the woman was scared, including her own testimony and that of police, a camper and a nurse who found injuries consistent with the alleged sexual assault.
It included the woman’s testimony that she interacted with the 18-year-old before the incident, driving him to the store and to his grandmother’s house.
She testified she awoke to find a large person on top of her, who told her to keep her eyes covered or he would kill her.
Browder stands 6-foot-1, and weighs 210 pounds, according to the Hawaii Criminal Justice Data Center’s records.
The dissenting opinion also disagreed with the majority opinion’s use of a recent Supreme Court decision in State v. Hirata, which overturned Chanse Hirata’s conviction in the continual sexual assault of a minor.
The dissenting opinion said that unlike the Hirata case, “where expert witness testimony may be necessary to help guide a jury’s ability to assess witness credibility,” a layperson would understand the evidence in the Browder case and that the “traumatized” statement was to address the defense’s theory that the 80-year-old was lying.
Rodby, who emphasized he was not Browder’s trial lawyer, said Wednesday, “we had closely looked at the evidence, and on our end it appeared that another person was the culprit,” adding other people in the park were not investigated.
