A 22-year-old man sentenced in March 2022 to up to three decades behind bars for the 2019 sexual assault of an elderly woman at a South Kohala campground will receive a new trial after the Intermediate Court of Appeals vacated his sentence because of prosecutorial misconduct.
A seven-woman, five-man jury found Zeth Browder guilty of two counts of first-degree sexual assault, two counts of third-degree sexual assault, first-degree burglary, kidnapping and tampering with evidence following a three-day trial held in December 2021.
Browder, who was 18 years old at the time of the incident, was accused of sexually assaulting a then-79-year-old woman as she slept in her tent at Spencer Beach Park campgrounds on June 15, 2019.
Kona Circuit Court Judge Robert D.S. Kim at sentencing denied a defense request to sentence Browder as a young adult defendant and ordered Browder to serve concurrently 20 years for each first-degree sexual assault charge, five years for each third-degree sexual assault charge, and one year for the tampering with evidence charge. He was also ordered to serve a consecutive term of 10 years for burglary and kidnapping.
However, on Oct. 20, the appellate court cited misconduct when Honolulu Prosecuting Attorney Kristen Yamamoto in her closing statement improperly used the word “we” by arguing to the jury “we know that the defendant penetrated the victim” .
The opinion states that the multiple uses of the pronoun “we” were improper expressions of the prosecutor’s personal opinion that both the state and the jury “knew” that the actions described in the two counts of first-degree sexual assault had been committed by Browder.
The ICA also noted the state’s case was based on the credibility of the victim and the only persons present during the incident were the victim and the perpetrator.
“While there was evidence of of physical injuries consistent with sexual assault, there were no eyewitnesses besides the victim and the DNA evidence was equivocal. No physical or forensic evidence indicated Browder had been in the victim’s tent. We conclude that there was a ‘reasonable possibility’ that the misconduct might have contributed to Browder’s conviction and was not harmless beyond a reasonable doubt,” the opinion reads.
The octogenarian victim at sentencing recounted for the court how the incident has impacted not only her life, but also the lives of her family and friends. West Hawaii Today does not identify victims of sexual assault without their consent.
Browder, who did not testify during the jury trial, also addressed the court before sentencing, professing his innocence and asking for leniency.
“I have maintained my innocence this entire time. I am innocent. I understand what she is saying I did, but I did not do it, and I am going to continue to fight this case until the truth comes out,” he said.
Browder has been serving his sentence in Arizona and will return to Hawaii once a new trial date is set in Kona Circuit Court.
