State v. Alongi

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Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
07-OCT-2022
07:51 AM
Dkt. 87 MO
NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

STATE OF HAWAI#I, Plaintiff-Appellee,
v.
STEVEN C. ALONGI, Defendant-Appellant

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CRIMINAL NO. 1CPC-XX-XXXXXXX)

MEMORANDUM OPINION
(By: Hiraoka, Presiding Judge, Wadsworth and Nakasone, JJ.)

Defendant-Appellant Steven C. Alongi, also known as
Steven Clark Alongi, appeals from the "Judgment of Conviction and
Probation Sentence" entered by the Circuit Court of the First
Circuit on June 26, 2018.1 For the reasons explained below, we
affirm the Judgment.
On September 8, 2017, Alongi was charged by felony
information and non-felony complaint with (1) Unauthorized Entry
Into Motor Vehicle in the First Degree and (2) Assault in the
Third Degree. He pleaded not guilty.
Jury trial began on January 17, 2018. The complaining
witnesses were spouses Julia and Anthony. They went through the
Kunia Wendy's drive-thru on April 24, 2017. Julia was driving;
Anthony was sitting in the passenger seat. They got their food.
Julia reversed into a handicap stall in the parking lot. A

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The Honorable Paul B.K. Wong presided.
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vehicle drove into the parking lot and reversed into the handicap
stall on the passenger side of Julia's car. The man driving the
vehicle stared at them aggressively. Julia stared back at him.
The man started to film Julia and Anthony. Julia reached for her
phone to film the man. She then realized that she forgot to put
up her handicap placard; she put the placard up and asked the man
if that was the problem. An argument followed. Anthony called
the police.
While Anthony was on the phone, the man walked to their
car, reached in, and started punching Anthony. Julia got out and
walked around the back of her car; however, the man got back into
his car and started it. Julia said, "yeah, that's what I
thought." The man turned off his car, got out, and asked her
"what did you think?" Julia told the man, "that you're a fuckin'
coward." The man punched Julia in the mouth. Julia punched him
back in the mouth. The man punched Julia about four more times
on the left side of her face and she fell to the ground.
Anthony testified that two persons then intervened.
Julia believed that one was a customer and the other was a
Wendy's employee. The man, however, got in his car and "sped out
of the parking lot."
Julia identified Alongi as the man that assaulted them.
The deputy prosecuting attorney (DPA) asked Julia: "Are you
certain that the defendant sitting in the courtroom here today is
the man that punched you and your husband on April 24th of 2017?"
She responded, "You know, there's always that little bit of
doubt."
Anthony also testified that he participated in the
photographic lineup conducted by the police. He told the
officer, "I'm not sure. I -- I don't remember exactly, I can't
identify." At trial, however, Anthony testified that he was
absolutely certain Alongi was the man who reached in the car
window and punched him.
Gabriel Billimon testified at trial. He was working at
Wendy's on the day of the incident. He took out the trash. He
walked past two vehicles — a silver-looking SUV and a grayish

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colored four-door Chevy. There appeared to be one person in the
Chevy and two people in the SUV. Billimon heard "somebody
screaming stop, stop what you doing." He looked back and saw the
driver of the Chevy punching a male in the passenger seat through
the window of the SUV. A woman got out of the driver's side of
the SUV and told the driver of the Chevy to stop what he was
doing. The driver of the Chevy walked toward the woman and began
"blowing the lady[,]" or hitting her with both hands. The driver
of the Chevy hit the woman about six times before she fell to the
ground. A customer then approached the driver of the Chevy and
the woman, and the driver of the Chevy started to back off.
Billimon walked up behind the driver of the Chevy and hit him in
the thigh while he was getting into his car, to prevent him from
leaving, but he was able to drive off.
Billimon identified Alongi as the driver of the Chevy.
Billimon had also identified Alongi in the photographic lineup
conducted by the police. He explained that he saw Alongi at
least twice before, "sleeping in the [Wendy's] parking lot in his
car." On those occasions, his boss would instruct him to tell
Alongi he could not park there and Alongi would leave the
premises. Billimon stated he was "[h]undred percent" certain
that Alongi was "the man that [he] had seen on those prior
occasions, the man that [he saw] punching those people, [and] the
same man that [he] identified . . . in court[.]"
The jury found Alongi guilty as charged on both counts.
The Judgment was entered on June 26, 2018. This appeal followed.

POINTS OF ERROR

Alongi raises five points of error:

1. "The inadmissible and prejudicial expert/
pseudo-expert opinions on Alongi's guilt
offered by Juror Croucher and Juror Nguyen
tainted the jury";

2. "The Circuit Court abused its discretion in
denying Alongi's first motion for mistrial
based on the [DPA's] misconduct in adducing

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Detective Carreira's highly prejudicial
comments";

3. "The Circuit Court abused its discretion in
denying Alongi's second motion for mistrial
based on Julia's admitted violation of the
witness exclusionary rule";

4. "Alongi was deprived of his constitutional
right to testify where his stated decision
not to testify was forced upon him by the
[deputy public defender]"; and

5. "There was no substantial evidence to support
Alongi's convictions."

STANDARDS OF REVIEW

1. A trial court has discretion to regulate voir dire
to keep the questioning within reasonable bounds to assist in
impaneling an impartial jury. State v. Churchill, 4 Haw. App.
276, 279, 664 P.2d 757, 760 (1983) (citing Hawai#i Rules of Penal
Procedure Rule 24(a)).
2. and 3. The denial of a motion for mistrial "is
within the sound discretion of the trial court and will not be
upset absent a clear abuse of discretion." State v. Pasene, 144
Hawai#i 339, 365, 439 P.3d 864, 890 (2019) (citing State v.
Furutani, 76 Hawai#i 172, 178-79, 873 P.2d 51, 57-58 (1994)).
4. The validity of a criminal defendant's right to
testify is a question of constitutional law reviewed under the
right/wrong standard. State v. Celestine, 142 Hawai#i 165, 169,
415 P.3d 907, 911 (2018) (citing State v. Gomez-Lobato, 130
Hawai#i 465, 468-69, 312 P.3d 897, 900-01 (2013)).
5. When a criminal defendant challenges the
sufficiency of the evidence to support a conviction, the evidence
must be considered in the strongest light for the prosecution.
See State v. Kalaola, 124 Hawai#i 43, 49, 237 P.3d 1109, 1115
(2010).

The test on appeal is not whether guilt is established
beyond a reasonable doubt, but whether there was substantial
evidence to support the conclusion of the trier of fact.

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Substantial evidence as to every material element of the
offense charged is credible evidence which is of sufficient
quality and probative value to enable a person of reasonable
caution to support a conclusion.

Id. (cleaned up).

DISCUSSION

1. The circuit court did not plainly err by
not sua sponte striking voir dire
responses given by two potential jurors.

Alongi argues that during voir dire two potential
jurors — Croucher and Nguyen — impermissibly expressed "expert/
pseudo-expert opinions" that Alongi was guilty. Croucher
disclosed that he was a psychologist and "an active member of the
Center of Law and Science, and that's kind of like bridging
neuropsychology and law." Nguyen disclosed that he grew up "in a
low income neighborhood" and had "seen many things. . . . I
witnessed violence, murder." Both expressed opinions that Alongi
was guilty. Alongi did not object during the voir dire or move
to strike Croucher's or Nguyen's opinions;2 accordingly, we
review for plain error.
After the jury was sworn but before opening statements
were given, the circuit court instructed the jury:

In terms of considering what is evidence and what is
not, again, evidence comes in the form of sworn testimony of
witnesses and any exhibits received into evidence.
A question asked by a lawyer is not evidence.
Objections made by lawyers also are not evidence. And
questions asked and responses of jurors during jury
selection also are not evidence. The opening statements and
the closing arguments of the lawyers as I told you also are
not evidence. And any testimony that the court may exclude
or strike is also not evidence in the case.

(Emphasis added.) "A jury is presumed to follow the court's
instructions." State v. Feliciano, 149 Hawai#i 365, 377, 489
P.3d 1277, 1289 (2021) (citation omitted). Nothing in the record

2
Alongi challenged Croucher for cause. The State did not object.
The circuit court granted the challenge. Alongi also challenged Nguyen for
cause. The circuit court granted the challenge over the State's objection.

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points to the contrary in this case. On this record, we cannot
conclude that the circuit court committed plain error during jury
voir dire.

2. The circuit court did not abuse its
discretion by denying Alongi's first
motion for mistrial.

Alongi argues that the circuit court erred by denying
his first motion for mistrial because "the [DPA] engaged in
misconduct by adducing Detective Carreira's irreparably
prejudicial comments that informed the jurors that he deal[t]
with 'Major Crimes' and felonies."
Alongi's first motion for mistrial was based upon
testimony given by Detective Carreira. On direct examination,
Detective Carreira testified:

Q Mr. Carreira, what do you do for a living, sir?

A I'm a detective with the Honolulu Police
Department.

Q How long have you been employed with HPD?

A Um -- going on 14 to 15 years.
Q Are you assigned to a particular division?

A Yes, Major Crimes Detail.

Q As a detective with the Major Crimes Detail,
what are some of your general duties and responsibilities?
A Investigate cases, go to scenes, interview
witnesses. You know, basic -- basically investigate any
kind of criminal case, normally a felony level.

[DEFENSE COUNSEL]: Objection, Your Honor.

(Emphasis added.)
Alongi did not object to the questions that elicited
the allegedly improper testimony; he objected only to Detective
Carreira's answers. The circuit court sustained the objection.
The following exchange then took place:

THE COURT: How do you want me to cure? An
instruction or leave it alone? Because he can't -- he's
investigated felonies, doesn't necessarily mean that this
one is a felony.

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[DEFENSE COUNSEL]: Yeah. I don't know how to remedy
it. Does the court have a preference?
THE COURT: Well, if I try to give a curative
instruction now, I think it's gonna be obvious and it draws
attention to it.

[DEFENSE COUNSEL]: I don't know, Judge.
THE COURT: But maybe I make -- but I may direct the
prosecutor to ask whether or not he investigates all kinds
of criminal offenses.

[DEFENSE COUNSEL]: Okay.
THE COURT: But I'll hear your thoughts.

[DPA]: Judge, that was an unanticipated response.
However, if defense counsel would and the court would like
me to cure it, I'll do what I can to cure that. And then
plus, I mean, that taken together with the fact that he
works for Major Crimes I think further complicates the
issue.

THE COURT: And I guess the fir --

[DEFENSE COUNSEL]: I don't want a mistrial.
(Indiscernible).

THE COURT: So my first question is do you want me to
[give] a curative instruction? My first thought would be
no. But if you want me to, I'll give one.

[DEFENSE COUNSEL]: I think I have to, I have to ask
for a curative instruction.

THE COURT: So I'm going to strike testimony?

[DEFENSE COUNSEL]: Yeah, just to strike I guess,
yeah, the last response without repeating it should be
stricken and not to -- they are not to consider it in their
-- I guess in their evaluation of the facts of this case or
in deliberation of this case.

THE COURT: Okay. I'll give a curative instruction.

The next thing I'm going to order is when they're
talking, when you ask Detective Carreira about his jobs, his
duties, and his responsibilities that you lead so that he
stays away from major crimes and from felony-level offenses.
[DPA]: Judge, I'll move on beyond the whole issue,
beyond his background at this point, if that's beneficial to
the court. But if the court would like me to clarify that
he investigates all types of crimes, I'm happy to do that as
well.
[DEFENSE COUNSEL]: I think that would just draw more
attention (indiscernible) --
[DPA]: I'll just --

[DEFENSE COUNSEL]: -- alleged crimes or whatever.

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[DPA]: I'll just move on, if that's okay.
[DEFENSE COUNSEL]: Okay.

(Emphasis added.) The circuit court then gave the following
curative instruction:

Ladies and gentlemen of the jury, Detective Carreira's last
two answers are stricken from the record. You are not to
consider it during your deliberations of this case in any
way.

Nevertheless, Alongi later moved for a mistrial. The
circuit court denied the motion. Because the jury is presumed to
follow the court's instructions, it cannot be said that Alongi
was prejudiced by Detective Carreira's statements. State v.
Acker, 133 Hawai#i 253, 279, 327 P.3d 931, 957 (2014). The
circuit court did not abuse its discretion in denying Alongi's
first motion for mistrial.

3. The circuit court did not abuse its
discretion by denying Alongi's second
motion for mistrial.

The circuit court invoked Rule 615 of the Hawaii Rules
of Evidence (HRE), commonly referred to as the "witness exclusion
rule," before the start of Alongi's trial.

Exclusion of witnesses. At the request of a party the court
shall order witnesses excluded so that they cannot hear the
testimony of other witnesses, and it may make the order of
its own motion.

Rule 615, Hawaii Rules of Evidence, Chapter 626, Hawaii Revised
Statutes (2016). "The purpose of HRE Rule 615 is to prevent the
shaping of testimony by one witness to match that of another, and
to discourage fabrication and collusion." State v. Elmaleh, 7
Haw. App. 488, 492, 782 P.2d 886, 889 (1989) (cleaned up).
Alongi allegedly punched complaining witness Anthony as
Anthony was seated in his car. Alongi then allegedly punched
complaining witness Julia after Julia confronted Alongi about
punching Anthony. Immediately after the incident, Anthony was
not able to identify Alongi in a photographic lineup. During the

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trial, Julia identified Alongi as the person who punched her and
Anthony. After Julia testified, but before Anthony testified,
Julia told Anthony that she had identified Alongi in court as the
person who assaulted her.
When Anthony testified he identified Alongi as the
person who punched him. Anthony admitted that he was shown a
photographic lineup, was able to narrow the suspects down to two
photographs, but was unable to identify Alongi as the person who
punched him. At the conclusion of the direct examination,
Anthony stated he was "[a]bsolutely" certain that Alongi was the
man "[t]hat reached through the car window and punched [him.]"
On cross-examination, defense counsel questioned
Anthony as follows:

Q . . . And you and your wife [Julia], you guys
drove here together today, correct?

A Yes.

Q Okay. And you and your wife during these
recesses, during lunch you guys are together, correct?

A Correct.

Q And you guys are sitting in a witness room out
here together, correct?

A Correct.
Q Okay. And you were in there when your wife came
out from after she testified, correct?

A Yes.

Q Okay. And she was upset, right?
A First time.

Q I'm sorry?
A First time because she coming out twice.
Q Okay. First time she was upset?

A Yeah. Crying and.
Q Okay. And she told you that she ID'd my client
in court?

A Yeah. She told me.

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The State, on re-direct examination, addressed defense counsel's
line of questioning:

Q Well, I just want to ask about the implications
of [defense counsel]'s questions.
A Okay.
Q Your wife, did she tell you that she saw the guy
who assaulted you in court today?
A Actually, I ask her did you see him? She say
yes.

Q Okay. My question to you is you've identified
the defendant here in court, right?
A Yes.

Q Are you identifying this defendant based on your
own recollection?
A On my recollection.

Q You're not doing so --

A Nah, nah, no, no.
Q Let me finish the question.

A Uh-huh.

Q Are you identifying the defendant because your
wife told you that he was in the room?

A No.

Q All right. [Anthony], why are you saying this
is the man that beat you through the window on April 24th?

A I recognize now.

Q In person?
A In person. I don't recognize in picture.

On re-cross examination, defense counsel revisited the
issue:

Q Well, you heard . . . [the DPA] ask you about
when you went back and talked to your wife, correct?
A Yes.

Q Okay. And you said you asked her was he in
there and she said yes, correct?
A Yes.
Q Okay.

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A No, I ask her did you rec -- did you see him.
Q Okay. And then she said yes, --

A Yes.
Q -- correct?
And then you're now in court and you're identifying
Mr. Alongi --

A Yes.
Q -- as the person who as [sic] assaulted you,
correct?

A. Correct.

Alongi orally moved for mistrial while the jury was in
deliberation:

[DEFENSE COUNSEL]: Your Honor, at this time defense
would make a motion for a mistrial based on a violation of
the Court's rule. Under HRE Rule 611 [sic], . . . the
witness exclusionary rule will always be in effect from the
hearing on any motions and/or jury selection until and
including closing arguments.

The basis for my motion is the testimony of
Mr. Anthony Szaraz, who testified that after his wife, Julia
Szaraz, had testified, she came back into the room where
they were seated together, where they had been together the
whole morning. She came in. He asked her specifically if
[Alongi] was in the courtroom and she answered yes, after
which [Anthony] came into the courtroom. And after not
being able to identify [Alongi] as the person who assaulted
him in the sequential six-pack lineup, he points to [Alongi]
with what he said was a hundred percent certainty that this
was the man who assaulted him through the window.
Also [Julia] did talk about a phone call she got from
Detective Carreira. However, I believe that that is an
indirect violation of the witness exclusionary rule as
invoked by the Court through its Rule 611 order.

THE COURT: It's a direct violation.

[DEFENSE COUNSEL]: Well, direct violation. And based
on -- you know, the rule itself is one of sequestration such
that it's in place in order to protect one witness from kind
of molding or shaping their testimony in order to align with
the testimony of another witness. And I believe that's what
happened here in court, regardless of what [Anthony] says --
excuse me -- may have testified to on the stand.

As such I believe that it prejudices [Alongi] such
that he's not able to get a fair trial. And that's the
basis for our motion, Your Honor.

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(Emphasis added.) The circuit court heard further argument, then
denied the motion for mistrial. The court explained:

THE COURT: After taking judicial notice of the
records, files, and proceedings, in 1CPC-XX-XXXXXXX, given
the arguments of counsel and considering the testimony
that's been provided in the case, Court has a couple of
comments on the witness exclusionary rule. The prosecutor's
right. It is a rule of sequestration to prevent the shaping
of testimony between witnesses. That being said, whether or
not there's actual collusion or actual shaping of testimony
is a determination to be made by the finder of fact. And as
long as the finder of fact has all of the circumstances of
that violation before them to consider, they have the proper
information with which to come to that conclusion.
So what the Court is really finding is when reviewing
the testimony of [Anthony], he was cross-examined vigorously
with all of the facts of the violation of the in limine
order and the witness exclusionary rule. He was
cross-examined on the statements that his wife made, the
statements that he learned, and whether or not it impacted
him when he made his in-court identification.

If the jury ultimately finds that it undermines his
credibility and his testimony, the jury has the information
to make that conclusion. The jury also has the relevant and
all of the information with respect to the violation of the
sequestration rule to make the adequate credibility
determination for all of the witnesses.
So given that, because he was subjected to
cross-examination and the totality of the violation of the
sequestration rule was brought to the jury's attention, the
Court cannot conclude that now the technical violation of
the rule resulted in the deprivation of [Alongi]'s right to
a fair trial.

So based on those findings and conclusions, Court
respectfully denies the motion for mistrial.

"[T]he sanctions which a court chooses to attach to the
violation of its sequestration order is a matter within the
discretion of the court." Elmaleh, 7 Haw. App. at 493, 782 P.2d
at 889 (original brackets omitted) (citing Harkins v. Ikeda, 57
Haw. 378, 384, 557 P.2d 788, 792 (1976)). Noncompliance with HRE
Rule 615 does not require a new trial "unless the court's
decision to allow the allegedly tainted testimony was an abuse of
discretion or resulted in prejudice to the defendant." Id. at
493, 782 P.2d at 890 (citation omitted). "The defendant has the
burden of proving that there was either prejudice or an abuse of
discretion." Id. at 493-94, 782 P.2d at 890 (cleaned up).

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In Elmaleh, we held that the violation of the
sequestration order was harmless because the complaining witness
admitted on cross-examination that she was present during the
conference between the prosecuting attorney and one of the
State's witnesses (a police officer). Id.
Similarly, in State v. Steger, 114 Hawai#i 162, 158
P.3d 280 (App. 2006), we concluded that a witness's viewing of an
exhibit previously marked by other witnesses was harmless beyond
a reasonable doubt because, among other reasons, "the circuit
court took sufficient remedial action by permitting [the
defendant] to cross-examine [the witness] about his viewing of
[the exhibit]." Id. at 175, 158 P.3d at 293 (citing Elmaleh, 7
Haw. App. at 494, 782 P.2d at 890). The defendant's ability to
cross-examine the police officer, we noted, "not only alerted the
jury to what had happened but also permitted [the defendant] to
attack [the witness]'s credibility by arguing that [the witness]
had been influenced by his exposure to the previously-marked
diagram." Id. "[T]he jury was able to judge for itself the
extent to which [the witness]'s testimony may have been
improperly influenced by his viewing of [the exhibit]." Id.
Alongi, like the defendants in Elmaleh and Steger,
failed to show that he was prejudiced or that the circuit court
abused its discretion by denying his motion for mistrial. The
record shows that defense counsel extensively cross-examined
Anthony on his interactions with Julia in the witness room. The
circuit court, consistent with the record, recognized that
"[Anthony] was cross-examined on the statements that [Julia]
made, the statements that he learned, and whether or not it
impacted him when he made his in-court identification." Defense
counsel "alerted the jury" to Anthony's discussion with Julia in
the witness room and "permitted [Alongi] to attack [Anthony]'s
credibility[.]" See Steger, 114 Hawai#i at 175, 158 P.3d at 293.
As in Steger, Alongi's jury was able to judge for itself the
extent to which Anthony's testimony may have been improperly
influenced by his discussions with Julia in the witness room. On
the record before us, we cannot say that the circuit court abused

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its discretion in denying the motion for mistrial based on
Anthony's and Julia's violation of the witness exclusion rule.

4. The circuit court did not deprive Alongi
of his constitutional right to testify.

Alongi contends he "was deprived of his constitutional
right to testify where his purported waiver of that right was the
result of coercion by [his defense counsel]." He acknowledges
that the circuit court engaged him in an appropriate Tachibana
colloquy,3 and that the alleged conduct of his defense counsel is
"not reflected in the record of the proceedings herein[.]" We
therefore decline to address this issue, without prejudice to
Alongi's right to file a Hawai#i Rules of Penal Procedure Rule 40
post-conviction petition.

5. The evidence was sufficient to support
Alongi's conviction.

Alongi contends there was insufficient evidence to
identify him as the perpetrator. In support of his argument,
Alongi asserts that Julia, Anthony, and Billimon "provided
conflicting, tainted and biased identifications of Alongi as the
alleged perpetrator[, which] did not constitute substantial
evidence[.]"
Alongi first argues that Julia's identification was not
credible because she twice failed to identify Alongi in
photographic lineups and she agreed on cross-examination that she
was "not a hundred percent certain" about her in-court
identification of Alongi.
Alongi next argues that Anthony's testimony was not
credible because he twice failed to identify Alongi in
photographic lineups and was only able to identify Alongi in
court after Julia told him she had identified Alongi during her
testimony, in violation of the witness exclusion rule.

3
See Tachibana v. State, 79 Hawai#i 226, 900 P.2d 1293 (1995).

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Finally, Alongi argues that Billimon's testimony was
biased and not credible because: (1) his testimony concerning his
unobstructed view of the incident and whether he punched or
kicked the perpetrator was contradicted by objective evidence
presented at trial; (2) his identification of Alongi as the
driver of the Chevy was colored by his prior encounters with
Alongi; and (3) he admitted to speaking alone with the deputy
prosecuting attorney about the case and also having a pending
drunk driving case that was being prosecuted by the office of the
prosecuting attorney.
Julia, Anthony, and Billimon all identified Alongi at
trial. Although Alongi challenges their credibility, "it is
within the jury's purview" to determine witness credibility.
State v. Williams, 149 Hawai#i 381, 399, 491 P.3d 592, 610 (2021)
(citing State v. Jhun, 83 Hawai#i 472, 483, 927 P.2d 1355, 1366
(1996) ("In a jury trial, the jury is the trier of fact and,
thus, is the sole judge of the credibility of the witnesses and
the weight of the evidence.")). There was substantial evidence
adduced at trial to support Alongi's conviction.

CONCLUSION

For the foregoing reasons, the Judgment of Conviction
and Probation Sentence entered by the circuit court on June 26,
2018, is affirmed.
DATED: Honolulu, Hawai#i, October 7, 2022.
On the briefs:
/s/ Keith K. Hiraoka
Thomas Waters, Presiding Judge
Law Office of Thomas Waters,
for Defendant-Appellant. /s/ Clyde J. Wadsworth
Associate Judge
Brian R. Vincent,
Deputy Prosecuting Attorney, /s/ Karen T. Nakasone
City and County of Honolulu, Associate Judge
for Plaintiff-Appellee.

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