NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC
NO. 27802
IN THE
INTERMEDIATE COURT OF APPEALS
OF THE
STATE OF
STATE OF
v.
ELSIE T.
PALAFOX, Defendant-Appellant
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CR. NO. 05-1-0280)
SUMMARY DISPOSITION ORDER
(By: Watanabe, Presiding Judge, Foley, and Nakamura, JJ.)
Defendant-Appellant Elsie T. Palafox (Palafox) appeals from the Judgment filed on February 1,
2006, in the Circuit Court of the First Circuit (circuit court).
(1) Plaintiff-Appellee State of Hawai‘i (the State) charged Palafox
by indictment with one count of unauthorized entry into a motor vehicle (UEMV),
in violation of Hawaii Revised Statutes (HRS) Section 708-836.5 (Supp. 1996). (2) The charge arose out of a parking lot
dispute at Costco on October 28, 2004, during which Palafox
allegedly attempted to punch the complainant, Sharie Tokumoto, through the driver's window of the complainant's
car. After a jury-waived bench trial, Palafox was
found guilty as charged. The circuit court sentenced Palafox
to five years of probation and ordered her to pay a $105 Crime Victim
Compensation Fee.
On appeal, Palafox
argues that:
1) the circuit court erred in denying her motions
for judgment of acquittal because HRS § 708-836.5, which sets for the UEMV
offense, does not apply to Palafox's alleged conduct
of entering the complainant's car with the intent to assault or terrorize the
complainant;
2) there was insufficient
evidence to prove that Palafox entered or remained
unlawfully in the complainant's vehicle because the complainant
"invited" Palafox to enter the vehicle by
provoking Palafox;
3) the circuit court
committed plain error by permitting the prosecutor to: ask irrelevant, leading,
and argumentative questions; adduce inadmissible hearsay evidence; and misstate
facts that were not in evidence;
4) the circuit court
erred when it permitted Officer Tiwanak to provide
inadmissible hearsay that the complainant told him "that a female tried to
punch [the complainant] through [the complainant's] open driver's window;"
5) the prosecutor engaged in misconduct by asking
irrelevant, leading, and argumentative questions; adducing inadmissible hearsay
evidence; and misstating facts that were not in evidence;
6) Palafox's trial
counsel provided ineffective assistance by failing to: a) object to the
prosecutor's irrelevant, leading, and argumentative questions, object to
inadmissible hearsay evidence, and correct the prosecutor's misstatement of
facts not in evidence; b) file a motion to suppress Palafox's
statement to Officer Tsue that "[i]f [the complainant is] saying I threatened her, yes, I
did;" and c) file a motion to dismiss the charge in the indictment as a de
minimus infraction under HRS § 702-236
(1993); and
7) the cumulative effect
of the alleged errors violated her right to a fair trial.
I.
After a careful review of the record and the
briefs filed by the parties, we affirm. We resolve the arguments raised by Palafox on appeal as
follows:
1) We reject Palafox's
claim that HRS § 708-836.5 does not apply to conduct that consists of
entering into a motor vehicle with the intent to assault or terrorize its
occupant. In State v. Lagat, 97 Hawai‘i 492, 40 P.3d 894 (2002), the Hawai‘i Supreme Court held that the precise claim
raised by Palafox was without merit.
2) We conclude that, when viewed in the light most
favorable to the prosecution, State v. Eastman, 81 Hawai‘i
131, 135, 913 P.2d 57, 61 (1996), there was sufficient evidence to support Palafox's conviction. This includes substantial evidence to
show that Palafox intentionally entered the
complainant's vehicle unlawfully and that Palafox's
entry had not been invited.
3) Palafox contends that
the circuit court committed plain error by permitting the prosecutor to: ask
irrelevant, leading, and argumentative questions; adduce inadmissible hearsay
evidence; and misstate facts that were not in evidence. We disagree. As a
general rule, "evidence to which no objection has been made may properly
be considered by the trier of fact and its admission
will not constitute ground for reversal." State v. Naeole,
62 Haw. 563, 570, 617 P.2d 820, 826
(1980). Accordingly, an appellant is usually prohibited "from
complaining for the first time on appeal of error to which he [or she] has
acquiesced or to which he [or she] failed to object." Price v. AIG Hawai‘i Ins. Co., 107 Hawai‘i
106, 111, 111 P.3d 1, 6 (2005).
There are sound
reasons for the rule. It is unfair to the trial court to reverse on a ground
that no one even suggested might be error. It is unfair to the opposing party,
who might have met the argument not made below. Finally, it does not comport with the concept of an orderly and efficient method of
administration of justice.
Based on a review of the record, we conclude that
the prosecutor's questions, comments, and elicitation of evidence of which Palafox complains were either unobjectionable or, if
improper, did not affect Palafox's substantial
rights. Thus, these matters did not constitute plain error. See State
v. Vanstory, 91 Hawai‘i
33, 42, 979 P.2d 1059, 1068 (1999) (stating that the appellate court's "power to deal with plain error is one to be
exercised sparingly and with caution . . ."). (3)
4) Palafox argues that
the circuit court erred in permitting inadmissible hearsay when the court
overruled her objection and allowed Officer Tiwanak
to testify that the complainant told him "that a female tried to
punch [the complainant] through [the complainant's] open driver's window."
Officer Tiwanak's testimony was cumulative of the
complainant's own testimony at trial that Palafox
attempted to punch the complainant in the head through the window. We conclude,
especially in the context of a bench trial, see Antone, 62 Haw. at 355, 615 P.2d at 108, that any error in admitting Officer
Tiwanak's testimony was harmless beyond a reasonable
doubt. See State v. Crisostomo, 94 Hawai‘i 282, 290, 12
P.3d 873, 881 (2000) (holding that the improper admission of hearsay evidence,
which was cumulative of other evidence properly admitted at trial, was
harmless).
5) To support her prosecutorial misconduct and
ineffective assistance of counsel claims, Palafox
relies on the same matters she cited to support her contention that the circuit
court erred in permitting the prosecutor to ask irrelevant, leading, and
argumentative questions, to adduce inadmissible hearsay, and to misstate facts.
She claims that the prosecutor engaged in misconduct by asking objectionable
questions, adducing inadmissible evidence, and making improper remarks, and
that her counsel was ineffective for failing to object to these actions. We
have already determined that these matters either did not involve error or were
harmless beyond a reasonable doubt. Thus, Palafox is
not entitled to any relief on her claims of prosecutorial misconduct or
ineffective assistance of counsel that are based on these same matters.
6) As additional grounds for her claim of
ineffective assistance of counsel, Palafox argues
that her trial counsel provided ineffective assistance by: 1) stipulating to
the admission of the complainant's two 911 calls; 2) failing to file a motion to
suppress Palafox's statement to Officer Tsue that "[i]f [the
complainant is] saying I threatened her, yes, I did;" and 3)
failing to file a motion to dismiss the charge in the indictment as a de minimus infraction under
HRS § 702-236.
The State argues that the complainant's two 911
calls would have been admissible as excited utterances under Hawaii Rules of
Evidence Rule 803(b)(2) (1993), and Palafox provides no explanation of why the 911 calls
would not have been admissible on this basis. Palafox's
claim that the admission of the complainant's 911 calls violated Palafox's
confrontation rights is without merit as the
complainant testified at trial and Palafox was
afforded a meaningful opportunity to cross-examine the complainant about the
calls. State v. Fields, 115 Hawai‘i 503, 517, 528, 168
P.3d 955, 969, 980 (2007). As to Palafox's statement to Officer Tsue,
there is no showing that Palafox's statement was the
product of a custodial interrogation or that the statement was suppressible.
Moreover, Palafox did not dispute that she and the
complainant were involved in a heated argument and indeed testified that she
challenged the complainant to a fight. As to her de minimus infraction
argument, Palafox fails to cite any convincing
authority to show that she would likely have prevailed on a motion to dismiss
the charge in the indictment as a de minimus
infraction. We conclude that Palafox has failed to
meet her burden of showing that she was denied the effective assistance of
counsel. See Antone, 62 Haw. at
348-49, 615 P.2d at 104.
7. We reject as without merit Palafox's
claim that the cumulative effect of the alleged errors violated her right to a
fair trial.
II.
We affirm the February 1, 2006, Judgment of the
circuit court.
DATED:
On the briefs:
Hayden Aluli
for Defendant-Appellant
for Plaintiff-Appellee
1. The Honorable Michael
D.
2. At the time of the
alleged offense, Hawaii Revised Statutes (HRS) Section 708-836.5 (Supp. 1996)
provided in relevant part as follows:
(1) A person
commits the offense of unauthorized entry into motor vehicle if the person
intentionally or knowingly enters or remains unlawfully in a motor vehicle with
the intent to commit a crime against a person or against property rights.
3. We note that Defendant-Appellant
Elsie T. Palafox (Palafox)
includes two 911 calls made by the complainant as part of the
"inadmissible hearsay evidence" Palafox
claims the trial court committed plain error in admitting. Palafox,
however, stipulated to the admission of the two 911 calls. She thus waived the
right to challenge this evidence on appeal, even on the basis of plain error
review. See People v. One 1999 Lexus, 855 N.E.2d 194, 200 (Ill. App. Ct. 2006).