880 P.2d 226 (1994)
In March 1990, the complaining witness began work as a temporary secretary for Defendant Barton Adams, an osteopath.1 At the close of the workday, Adams initiated a massage of her neck and shoulders that progressed to an examination room.2 There, the complaining witness removed portions of her clothing and lay on the examining table.3 Adams admitted digitally penetrating her vagina three times during the encounter but denied any oral penetration.4 The complaining witness maintained she withheld consent and instructed him to stop, although she conceded to investigators and the grand jury that fear prevented her from speaking or resisting visibly at times.5 Adams countered that she appeared receptive and flirtatious throughout the day without voicing objections.6
The jury returned guilty verdicts on three counts of sexual assault in the second degree on January 30, 1992.7 Adams filed a motion for new trial on February 19, 1992.8 The motion's central claim rested on prejudicial statements by juror Higa during deliberations that drew from her personal history rather than the trial evidence.9 Adams supported the motion with two juror affidavits and excerpts from the voir dire transcript.10
The affidavits described Higa informing fellow jurors that she had been subjected to nonconsensual sexual activity four times in her life and had frozen during those episodes.11 Higa used her experiences to suggest why the complaining witness might not have resisted the defendant's actions.12 In contrast, during voir dire Higa had mentioned only that a female relative had been molested and had assured the court that the incident would not affect her judgment in the case.13 Neither party presented additional testimony at the hearing on the motion.14
The trial court denied the motion after reviewing the submitted materials.15 It also excluded proposed defense evidence consisting of the complaining witness's herpes diagnosis and a videotape of her suggestive dancing at a nightclub five months after the events.16 Adams then appealed his convictions to the Intermediate Court of Appeals of Hawai`i.17
Whether the trial court erred in denying the defendant's motion for a new trial on the ground of juror misconduct?18
A motion for a new trial based on juror misconduct during deliberations requires the trial court first to determine whether the misconduct could substantially prejudice the defendant's right to a fair trial.19 If so, a rebuttable presumption of prejudice arises that the prosecution must overcome by showing harmlessness beyond a reasonable doubt.20 When a juror's personal-experience comments vouch for the complaining witness's credibility on issues of consent or the defendant's state of mind, the presumption applies.21 The verdict must be set aside unless the prosecution clearly demonstrates the comments could not have affected the outcome.22
Yes. The two juror affidavits established that Higa told fellow jurors she had been subjected to nonconsensual sexual activity four times and had frozen during those episodes.23 She used her experiences to explain why the complaining witness might not have resisted.24 These comments occurred while the jury discussed the credibility of Defendant and the complaining witness and whether Defendant knew the complaining witness had not consented.25 These matters are central to the offenses even though physical resistance is not an element under HRS § 707-731(1)(a).26 Higa had disclosed only a relative's molestation during voir dire.27 She had assured the court it would not affect her judgment, creating an inference of concealment.28
The trial court's findings that the remarks were not substantially prejudicial or were harmless were clearly erroneous.29 Its refusal to investigate or grant the motion constituted an abuse of discretion.30
The trial court erred in denying the defendant's motion for a new trial on the ground of juror misconduct.31
Whether the trial court erred in refusing to admit evidence that the complaining witness suffered from a sexually transmitted disease?32
Evidence of the complaining witness's herpes diagnosis was not probative of Defendant's state of mind.33
No. Defendant was permitted to testify that the complaining witness engaged him in a discussion of sexually transmitted diseases.34 However, the fact that she was infected with herpes did not make it more probable that her manner was warm and flirtatious or that Defendant reasonably believed she consented.35 The trial court correctly determined that the diagnosis itself lacked probative value on any issue in the case.36
The trial court did not err in refusing to admit evidence that the complaining witness suffered from a sexually transmitted disease.37
Whether the trial court erred in refusing to admit a videotape showing the complaining witness dancing suggestively five months after the alleged offenses?38
The videotape was irrelevant because it was not probative of any fact in issue in the case.39
No. The videotape depicted the complaining witness dancing at a nightclub approximately five months after the events of March 29, 1990.40 Therefore it could not illuminate any issue concerning consent, lack of consent, or Defendant's state of mind on the date of the alleged offenses.41 The trial court properly excluded it as irrelevant.42
The trial court did not err in refusing to admit a videotape showing the complaining witness dancing suggestively five months after the alleged offenses.43