State v. Navarro

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
13-JAN-2022
08:31 AM
Dkt. 88 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
STATE OF HAWAI#I, Plaintiff-Appellee, v.
KOA NAVARRO, Defendant-Appellant
APPEAL FROM THE CIRCUIT COURT OF THE FIFTH CIRCUIT
(CASE NO. 5CPC-XX-XXXXXXX)
SUMMARY DISPOSITION ORDER
(By: Hiraoka, Presiding Judge, Nakasone and McCullen, JJ.)
Defendant-Appellant, Koa Navarro (Navarro) appeals from
the Judgment of Conviction and Probation Sentence; Notice of
Entry of Judgment, entered on June 21, 2018, by the Circuit Court
of the Fifth Circuit (Circuit Court).1 On appeal, Navarro
contends that the Circuit Court erred in excluding impeachment
evidence pursuant to Hawaii Rules of Evidence (HRE) Rule 613(b),
and further contends that such error was not harmless because
"the outcome of the trial turned on whether the jury believed
[the complainant's] claim that at the time of the incident,
[Navarro] punched him in the face three times and caused him to
suffer bodily injury."
Upon careful review of the record and the briefs
submitted by the parties and having given due consideration to
1
The Honorable Randal G.B. Valenciano presided.
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
the arguments advanced and the issues raised by the parties, we
resolve Navarro's point of error as follows.
I. BACKGROUND
Plaintiff-Appellee State of Hawai#i (State) charged
Navarro with Assault in the Third Degree, in violation of Hawaii
Revised Statutes (HRS) § 707-712(1)(a) (Supp. 2014).2
On March 22, 2017, an alleged physical altercation
occurred between Navarro and the complainant Lowen Gonzales
(Gonzales). The State called the following witnesses at trial:
Lowen Gonzales
On direct examination, Gonzales testified that he,
Michaelyn Alalem (Alalem), and Brianee Cabacangan (Cabacangan)
were co-workers at Kaua#i Beach Resort (KBR). Gonzales worked
with Navarro when Navarro was still employed at KBR.
Prior to the incident, Gonzales and Alalem had a one-
time intimate encounter. Gonzales subsequently received a
Snapchat message from "Koa KBR" stating, "You better leave
[Alalem] alone or I'll break your jaw." Gonzales believed it was
from Navarro because he had Navarro saved as "Koa KBR" in his
list of friends on Snapchat.
On the night of March 22, 2017, Gonzales, Alalem, and
Cabacangan went to a beach access road near KBR to drink and
socialize. Gonzales had one beer. Gonzales testified that,
while there, Navarro arrived in his car, got out, and approached
Gonzales while repeatedly telling him, "What did I tell you?"
2
HRS § 707-712(1)(a) provides that "[a] person commits the offense of
assault in the third degree if the person intentionally, knowingly, or
recklessly causes bodily injury to another person." "Bodily injury" means
"physical pain, illness, or any impairment of physical condition." HRS
§ 707-700 (2014).
2
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Navarro then punched him three times on his left cheek and jaw
area. While punching Gonzales, Navarro repeatedly said, "What
did I tell you?" On a scale of one to ten, ten being the most
painful, Gonzales testified that his level of pain was a six.
He experienced swelling and redness on his face. Navarro left
the scene when Gonzales called 911.
On cross-examination, the Deputy Public Defender (DPD)
attempted to impeach Gonzales for an alleged prior inconsistent
statement he made to Kaua#i Police Department Officer Eric Higa
(Officer Higa):
[DPD:] And you also testified that [Alalem and Cabacangan]
were both present?
[Gonzales:] Yes.
[DPD:] Isn't it true that when Officer Higa asked you who
was present, you said you and [Alalem] and only you and
[Alalem]?
[Gonzales:] No.
Brianee Cabacangan
Cabacangan testified that she previously worked with
Navarro at KBR. On the night of the incident, she had two beers.
She, Alalem, and Gonzales were hanging out at the beach access
road when she saw Navarro arrive in his car. Cabacangan then
observed Navarro approach Gonzales and Navarro's hand make
contact with Gonzales' face. She could not recall whether it was
his fist or open palm. Cabacangan confirmed on direct
examination that it was Navarro who hit Gonzales in the face.
On cross-examination, Cabacangan testified that she informed
Officer Higa she witnessed Navarro hit Gonzales in the face one
time.
3
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Michaelyn Alalem
Alalem testified that she knew Navarro when he worked
at KBR and was in a six-month relationship with him at the time
of the incident. On the night of the altercation, she,
Cabacangan, and Gonzales were all hanging out at the beach access
road when she saw Navarro show up in his car. Alalem testified
that after seeing Navarro arrive, she could not remember the rest
of the details. She had "at least three beers" that night.
Officer Eric Higa
Officer Higa testified to taking Gonzales' statement
shortly after the incident occurred. Officer Higa stated that
Gonzales identified Navarro as the person who punched him in the
face. During cross-examination, the DPD attempted to introduce
impeaching evidence. The State objected, and the Circuit Court
sustained:
[DPD:] And isn't it true that when you spoke to Mr. Gonzales
and asked who was present that night, he told you that –-
[Deputy Prosecuting Attorney (DPA):] Objection.
THE COURT: Approach.
(The following discussion was had at the bench out of the
hearing of the jury.)
[DPA:] She's trying to get in hearsay.
[DPD:] It's impeachment, prior inconsistent statement.
[DPA:] She's not impeaching this officer. She's trying to
impeach [Gonzales].
THE COURT: Somebody else, yeah.
[DPA:] She should have done that when [Gonzales] was on the
stand.
THE COURT: I agree. Okay. Sustained.
[DPD:] Well, I tried to –-
(End of bench conference.)
(Emphasis added.)
4
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
The DPD then questioned Officer Higa on Gonzales' prior
statement regarding the level of pain he experienced. Over the
State's objection, the Circuit Court allowed Officer Higa to
testify that Gonzales informed him the level of pain he
experienced was a "four out of ten."
II. STANDARD OF REVIEW
On appeal, we review the trial court's evidentiary
ruling pursuant to HRE Rule 613(b) under the right/wrong
standard. See State v. Holt, 116 Hawai#i 403, 414, 173 P.3d 550,
561 (App. 2007); State v. Ortiz, 91 Hawai#i 181, 189, 981 P.2d
1127, 1135 (1999).
III. DISCUSSION
Navarro argues that the Circuit Court erred in
excluding impeachment evidence, and that such error was not
harmless because the trial's outcome depended on Gonzales'
testimony. While the Circuit Court erred in precluding Navarro
from eliciting a prior inconsistent statement from Gonzales for
impeachment purposes, the error did not contribute to Navarro's
conviction. State v. Pond, 118 Hawai#i 452, 461, 193 P.3d 368,
377 (2008).
A. The Circuit Court Erred In Precluding Navarro From Eliciting
Gonzales' Prior Inconsistent Statement For Impeachment
Purposes
HRE Rule 613(b) provides that "[e]xtrinsic evidence of
a prior inconsistent statement by a witness is not admissible
unless, on direct or cross-examination, (1) the circumstances of
the statement have been brought to the attention of the witness,
and (2) the witness has been asked whether the witness made the
statement." HRE Rule 613(b). Furthermore, the "foundation
5
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
requirement is for the purpose of rekindling the witness' memory,
and substantial compliance is all that is necessary." State v.
Pokini, 57 Haw. 26, 29, 548 P.2d 1402, 1405 (1976).
Here, at trial, Gonzales testified on direct
examination that his "coworkers [Alalem and Cabacangan]"
accompanied him to the beach access road. On cross examination,
pursuant to HRE 613(b), the DPD laid the foundation to impeach
Gonzales for an alleged prior inconsistent statement he made to
Officer Higa when Gonzales denied telling Officer Higa that only
he and Alalem were present during the incident. The DPD then
sought to introduce the prior inconsistent statement through
Detective Higa's testimony, which the Circuit Court disallowed
based on a hearsay objection.
The DPD, however, sufficiently complied with the
requirements of HRE Rule 613(b) because where the "circumstances
accompanying the making of the supposed statement have been
called to the attention of the witness upon cross-examination,
and he denies having made the statement, or fails to admit it
distinctly, or says that he does not remember, the foundation
requirements for the impeaching evidence have been satisfied."
Pokini, 57 Haw. at 29, 548 P.2d at 1405 (citation omitted).
Since application of HRE Rule 613(b) "admits of only
one correct result," the Circuit Court was wrong to sustain the
State's objection, precluding Navarro from eliciting Gonzales'
prior inconsistent statement for impeachment purposes. See State
v. Duncan, 101 Hawai#i 269, 278, 67 P.3d 768, 777 (2003); Ortiz,
91 Hawai#i at 189-90, 981 P.2d at 1135-36.
6
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
B. The Error Was Harmless Beyond A Reasonable Doubt
Navarro contends that the Circuit Court's error was not
harmless, arguing that "[w]ith respect to the elements of
assault, the case depended almost entirely on [Gonzales']
credibility" because "the outcome of the trial turned on whether
the jury believed [Gonzales'] claim that at the time of the
incident, [Navarro] punched him in the face three times and
caused him to suffer bodily injury." In doing so, Navarro quotes
from State v. Tuua, 125 Hawai#i 10, 17, 250 P.3d 273, 280 (2011),
for the proposition that "[i]n close cases involving the
credibility of witnesses, particularly where there are no
disinterested witnesses or other corroborating evidence, this
court has been reluctant to hold improper statements harmless."
Contrary to Navarro's contention, this case did not turn on
Gonzales' testimony that Navarro "punched him in the face three
times."
When applying the "harmless beyond a reasonable doubt"
standard, we must "determine whether there is a reasonable
possibility that the error complained of might have contributed
to the conviction." See Pond, 118 Hawai#i at 461, 193 P.3d at
377; Hawai#i Rules of Penal Procedure Rule 52(a). Here, there
was no reasonable possibility that the Circuit Court's error
might have contributed to Navarro's conviction.
To convict Navarro of Assault in the Third Degree, the
State was required to prove beyond a reasonable doubt that
Navarro intentionally, knowingly, or recklessly caused bodily
injury to Gonzales. See HRS § 707-712(1)(a). Navarro's defense
7
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
was that he was not there and the State failed to prove the
charge beyond a reasonable doubt.
At trial, Gonzales testified that prior to the
incident, he received a Snapchat message from Navarro under the
name "Koa KBR" saying, "You better leave [Alalem] alone or I'll
break your jaw." Gonzales also identified Navarro to Officer
Higa as the person who punched him in the face, and testified
that he experienced pain, swelling, and redness.
But even without Gonzales' testimony, the State adduced
evidence through Alalem's and Cabacangan's testimonies. Both
Alalem and Cabacangan testified that they observed Navarro
approaching Gonzales, corroborating Gonzales' testimony that the
three of them were present at the beach access road when Navarro
arrived and that Navarro was present at the time of the incident.
Cabacangan further testified that she witnessed Navarro
"going towards Gonzales" and Navarro's hand make physical contact
with Gonzales' face. She also testified that she informed
Officer Higa she saw Navarro either push or punch Gonzales in the
face. See State v. Hoang, 94 Hawai#i 271, 281, 12 P.3d 371, 381
(App. 2000) (concluding that the trier of fact could reasonably
infer pain from evidence of physical contact, even though there
was no specific evidence adduced regarding pain).
Thus, contrary to Navarro's contention, the outcome of
the trial did not turn on whether the jury believed Gonzales'
claim that Navarro "punched him in the face three times" causing
him bodily injury. There was "other corroborating evidence" to
prove that Navarro was at the scene of the incident, and that he
8
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
intentionally, knowingly, or recklessly caused bodily injury to
Gonzales. Tuua, 125 Hawai#i at 17, 250 P.3d at 280.
Accordingly, the Circuit Court's exclusion of Gonzales' prior
inconsistent statement did not infect the verdict and was
harmless beyond a reasonable doubt. Pokini, 57 Haw. at 34, 48
P.3d at 1407.
IV. CONCLUSION
Therefore, IT IS HEREBY ORDERED that the Judgment of
Conviction and Probation Sentence; Notice of Entry of Judgment,
entered on June 21, 2018, in the Circuit Court of the Fifth
Circuit, is affirmed.
DATED: Honolulu, Hawai#i, January 13, 2022.
On the briefs: /s/ Keith K. Hiraoka
Presiding Judge
William H. Jameson, Jr.,
Deputy Public Defender, /s/ Karen T. Nakasone
for Defendant-Appellant. Associate Judge
Tracy Murakami, /s/ Sonja M.P. McCullen
Deputy Prosecuting Attorney, Associate Judge
County of Kaua#i,
for Plaintiff-Appellee.
9