State v. Bato

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Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
30-SEP-2021
08:01 AM
Dkt. 99 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I

STATE OF HAWAI#I, Plaintiff-Appellee, v.
MARIA ARLENE BATO, Defendant-Appellant

APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT
(#EWA DIVISION)
(CASE NO. 1DCW-XX-XXXXXXX)

SUMMARY DISPOSITION ORDER
(By: Leonard, Presiding Judge, Hiraoka and Nakasone, JJ.)

Defendant-Appellant Maria Arlene Bato (Bato) appeals

from the February 13, 2019 Judgment/Order; Notice of Entry of

Judgment/Order (Judgment) and the September 4, 2019 Order and

Notice of Entry of Order (Order Denying Motion for New Trial),

entered in the District Court of the First Circuit, #Ewa Division

(District Court). Following a bench trial, the District Court

found Bato guilty of Theft in the Fourth Degree (Theft 4), in

violation of Hawaii Revised Statutes (HRS) § 708-833(1) (Supp.

2017),1 and denied Bato's post-verdict motion for new trial.

(Motion for New Trial).

1
HRS § 708-833(1) provides: "A person commits the offense of theft
in the fourth degree if the person commits theft of property or services of
any value not in excess of $250."
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Bato raises five points of error on appeal, contending

that: (1) trial counsel, Deputy Public Defender (DPD) Antoinette

Lilley (Trial Counsel), provided ineffective assistance by not

objecting to or challenging Plaintiff-Appellee State of Hawaii's

(the State's) trial evidence;2 (2) Trial Counsel provided

ineffective assistance by failing to introduce certain

exculpatory evidence at trial; (3) the District Court violated

Bato's rights to equal protection and due process by granting the

State's oral motion to reconsider the order granting her a new
trial (Motion to Reconsider) without two days prior written

notice of the motion;3 (4) the District Court erred in denying

Bato's Motion for New Trial; and (5) no substantial evidence

supports Bato's conviction because the State failed to establish

the value of the item that was allegedly price-switched.

Upon careful review of the record and the briefs

submitted by the parties, and having given due consideration to

the arguments advanced and the issues raised by the parties, we

resolve Bato's points of error as follows:

(1) The Hawai#i Supreme Court has held:
The defendant has the burden of establishing
ineffective assistance of counsel and must meet the
following two-part test: 1) that there were specific errors
or omissions reflecting counsel's lack of skill, judgment,
or diligence; and 2) that such errors or omissions resulted
in either the withdrawal or substantial impairment of a
potentially meritorious defense. To satisfy this second
prong, the defendant needs to show a possible impairment,
rather than a probable impairment, of a potentially

2
Hawai#i Rules of Appellate Procedure Rule 28(a) provides: "If a
brief raises ineffective assistance of counsel as a point of error, the
appellant shall serve a copy of the brief on the attorney alleged to have been
ineffective". Here, Bato failed to serve the opening brief on Trial Counsel.
3
The Honorable Steven Hartley presided over the State's Motion to
Reconsider.

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meritorious defense. A defendant need not prove actual
prejudice.

State v. Wakisaka, 102 Hawai#i 504, 514, 78 P.3d 317, 327 (2003)

(citations, footnote and internal quotation marks omitted).

Here, Bato presents no argument in support of her

assertion that Trial Counsel was ineffective for failing to

object to or ask questions about the State's evidence, and she

fails to identify any potentially meritorious basis for excluding

evidence that Trial Counsel failed to raise. Thus, she fails to

show "specific errors or omissions reflecting counsel's lack of
skill, judgment, or diligence." See id. Accordingly, Bato has

not met her burden of establishing ineffective assistance of

counsel as raised in her first point of error.

(2) On March 1, 2019, Bato filed a Motion for New

Trial through newly retained counsel, arguing, inter alia, that

Trial Counsel failed to present a receipt for the item she was

accused of stealing (the Receipt) as exculpatory evidence in her

defense. A copy of the Receipt was not submitted with the motion

or otherwise put into the record in this case. The District

Court later granted the State's motion to compel production of a
copy of the Receipt. Subsequently, the State argued that the

Receipt was fraudulent, and asserted that that was why it was

never offered into evidence. Yet, even after the withdrawal of

Trial Counsel and substitution of new counsel, and the State's

assertion that the Receipt was fraudulent, the Receipt was still

not offered into evidence by the defense in support of Bato's

argument that counsel was ineffective (or otherwise).

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We note that in State v. Reed, 77 Hawai#i 72, 83-84,

881 P.2d 1218, 1229-30 (1994), overruled on other grounds by

State v. Balanza, 93 Hawai#i 279, 1 P.3d 281 (2000), the

defendant argued that his trial counsel's failure to call several

police officers, who played minor roles in his arrest, impaired

his entrapment defense, arguing that the officers would have

provided favorable testimony. The supreme court rejected this

argument, noting:
Other than his own uncorroborated assertions, Reed
points to no evidence in the record indicating what
the officers would have testified to if called as
witnesses. In the absence of sworn statements from
the police officers verifying that, had they been
called as witnesses at trial, they would have
testified as Reed claims they would, Reed's
characterization of their potential testimony amounts
to nothing more than speculation and, therefore, is
insufficient to meet his burden of proving that his
trial counsel's failure to subpoena the police
officers as witnesses constituted constitutionally
ineffective assistance of counsel.

Id. at 84, 881 P.2d at 1230 (emphasis added).

Here, Bato's failure to produce the Receipt in

conjunction with her Motion for New Trial is fatal to her claim

for reasons similar to those in Reed. Under Hawai#i Rules of

Evidence (HRE) Rule 1002, "[t]o prove the content of a writing,

. . . the original writing . . . is required, except as otherwise
provided in these rules or by statute." Under HRE Rule 1004(1)-

(4), "[t]he original or a duplicate is not required, and other

evidence of the contents of a writing . . . is admissible" only

if the original is lost or destroyed, not obtainable, in the

possession of the opponent, or if the writing is not closely

related to a controlling issue. Bato does not argue that any of

the HRE Rule 1004 exceptions apply; therefore, we conclude that

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the Receipt was required to prove its contents. Because the

Receipt is not in the record, there is no proof of its contents,

and thus no basis for this court to conclude it contains possibly

exculpatory evidence. Accordingly, Bato fails to show how Trial

Counsel's decision to not introduce the Receipt resulted in

either the withdrawal or substantial impairment of a potentially

meritorious defense.

(3) Bato contends she was denied equal protection and

due process because the District Court granted the Motion to
Reconsider without giving her two days' prior written notice.

However, Bato does not cite where in the record she objected to

the District Court's consideration of the State's motion without

two days notice, and her argument provides no analysis regarding

the import of two days notice, particularly as to what evidence

or argument could have been advanced with further notice; nor

does Bato present any supporting analysis for the purported equal

protection and due process claims. Rather, her argument

maintains that the District Court's stated reasons for granting

reconsideration are "insufficient" to deny her due process right

to a new trial, and that the District Court was "treating this

. . . case so special, but only for the prosecution."

The record indicates that the District Court (Judge

Hartley) granted reconsideration after deciding that Judge Iha,

who conducted the bench trial, should have heard the Motion for

New Trial, and noting further that Bato's new counsel failed to

notify the prosecutor who tried the case of the motion. Judge

Hartley's primary reason for granting reconsideration is

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consistent with and in furtherance of principles of judicial

restraint, and therefore supports a conclusion that the District

Court did not abuse its discretion.
[A] judge should generally be hesitant to modify,
vacate or overrule a prior interlocutory order of
another judge who sits in the same court. Judicial
restraint in this situation stems from considerations
of courtesy and comity in a court with multiple
judges, where each judge has equal and concurrent
jurisdiction.

The normal hesitancy that a court would have in
modifying its own prior rulings is even greater when a
judge is asked to vacate the order of a brother or
sister judge. The general rule which requires
adherence to a prior interlocutory order of another
judge of the same court thus commands even greater
respect than the doctrine of "law of the case," which
refers to the usual practice of courts to refuse to
disturb all prior rulings in a particular case,
including rulings made by the judge himself or
herself.
Unless cogent reasons support the second court's
action, any modification of a prior ruling of another
court of equal and concurrent jurisdiction will be
deemed an abuse of discretion.

State v. Oughterson, 99 Hawai#i 244, 253, 54 P.3d 415, 424 (2002)

(citations and brackets omitted; emphasis added). Under the

above principles, Judge Hartley should have been hesitant to

vacate Judge Iha's conviction and grant Bato a new trial.

Because the result of the reconsideration order was only to re-
set the motion for hearing before Judge Iha, Judge Hartley

exercised his discretion in accordance with the established

principle of judicial restraint. Thus, he did not "clearly

exceed[] the bounds of reason or disregard[] rules or principles

of law or practice." See generally State v. Hicks, 113 Hawai#i

60, 69, 148 P.3d 493, 502 (2006) (citations omitted).

Therefore, we conclude that the District Court (Judge

Hartley) did not abuse its discretion in granting reconsideration

of its ruling on Bato's Motion for New Trial.

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(4) Bato argues that the District Court (Judge Iha)

abused its discretion in denying Bato's Motion for New Trial

because the denial of the motion prevented her from presenting

the Receipt as evidence in her defense, thus denying her due

process. Specifically, Bato argues that the District Court erred

in accepting the State's argument that the "[R]eceipts" were

"deficient in some manner" despite Bato's assertion that she

"could authenticate and identify the [R]eceipt."4

Under the Hawai#i Rules of Penal Procedure (HRPP) Rule

33, "[t]he court on motion of a defendant may grant a new trial

to the defendant if required in the interest of justice."
HRPP Rule 33, which is modeled after Federal Rules of
Criminal Procedure (FRCP) Rule 33 . . . . According to
Professor Wright, Rule 33 "recognizes the traditional
principle that the trial court has broad powers to
grant a new trial if for any reason it concludes that
the trial has resulted in a miscarriage of justice."
3 C. Wright, Federal Practice & Procedure: Criminal 2d
§ 551 at 236–37 (1982). Despite this broad authority,
however, "motions [for new trials] are not favored and
new trials are to be granted with caution." Id. at
237.

State v. Matyas, 10 Haw. App. 31, 37, 859 P.2d 1380, 1383 (1993).

The District Court's reasoning for denying the Motion

for New Trial was not that it relied upon or accepted the State's

argument that the Receipt was fraudulent; rather, the court noted

that the Receipt was not newly discovered evidence. In State v.

McNulty, 60 Haw. 259, 267–68, 588 P.2d 438, 445 (1978), overruled

on other grounds by Raines v. State, 79 Hawai#i 219, 900 P.2d

1286 (1995), the supreme court held that a trial court may grant

a new trial based on newly discovered evidence under certain

4
Though apparently referring to the same (unsubmitted) evidence,
Bato interchangeably refers to a "Receipt" in the singular and "Receipts" in
the plural throughout her opening brief.

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conditions. However, Bato does not argue that the Receipt is new

evidence.

Bato fails to provide any authority supporting her

broad contention on appeal that the District Court should have

granted a new trial based on evidence that was available, but not

presented, at trial. The gravamen of Bato's argument at the

hearing on the Motion for New Trial was ineffective assistance of

counsel, but Bato failed to offer the Receipt into evidence or

otherwise support her assertion that Trial Counsel was
ineffective for having failed to offer the Receipt as evidence at

trial. Thus, we reject Bato's argument that the District Court

abused its discretion in denying the Motion for New Trial.

(5) Bato argues that the District Court erred in not

granting her motions for acquittal and for dismissal5 because the

State failed to present evidence of the price of the "item

allegedly price switched," and therefore the State failed to

prove an element of the offense. The State argues that

substantial evidence supports the conviction because Chelsey

Takahashi (Takahashi), an asset protection associate for Walmart,

credibly testified that the Box of Slime allegedly price-swapped

by Bato cost $20.80.6

"[E]ven if it could be said in a bench trial that the

conviction is against the weight of the evidence, as long as

5
Although Bato moved for judgment of acquittal at the close of the
State's case and again at the close of her own case, it does not appear that
she moved for dismissal at any time.
6
Price-swapping involves removing a price tag from an item and then
applying a different price tag, which was removed from a lower priced item.

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there is substantial evidence to support the requisite findings

for conviction, the trial court will be affirmed." State v.

Matavale, 115 Hawai#i 149, 158, 166 P.3d 322, 331 (2007)

(citation omitted). "[A]s trier of fact, the trial judge is free

to make all reasonable and rational inferences under the facts in

evidence, including circumstantial evidence." Id. "An appellate

court will not pass upon the trial judge's decisions with respect

to the credibility of witnesses and the weight of the evidence,

because this is the province of the trial judge." State v.
Eastman, 81 Hawai#i 131, 139, 913 P.2d 57, 65 (1996) (citations

omitted).

"A person commits the offense of [Theft 4] if the

person commits theft of property or services of any value not in

excess of $250." HRS § 708-833(1). Takahashi testified as

follows regarding the values of a Box of Slime and a particular

headband:
[The prosecutor] The two items that were admitted into
evidence as Exhibit 1 and Exhibit 2, um -- does the store
Walmart Pearl City carry those items?
[Takahashi] Yes.

Q And how do you know that?

A Um -- I seen her select it off of our shelf and, um --
after it was recovered from her, um -- in the booking
office, it was taken to the register and it was scanned and
it, um -- it scanned at our register.

Q Okay. So at that time you were also able to . . .
establish the value of these items?

A Yes.
Q Okay. And also establish the fact that she failed to pay
for one of the items?
A Yes.

Q Does anyone have authorization to permit a person to take
items from the store without paying for them?

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A No.

Q Did the defendant have permission to take items from the
store without paying for them?
A No.

Q Did the defendant have permission to switch the tags --

A No.
Q -- and pay for a lesser price item?
. . . .
Q . . . We discussed how you established the value of the
items stolen, correct?
A Uh-huh.
Q And that's because you went to the register and rang them
up, correct?

A Yes.

Q On that day, was the total $20.80?
A Yes.

(Emphasis added).

Takahashi also testified that Bato "paid the cheaper

price of the slime" and "exited the store with the more expensive

slime."

Contrary to the State's argument, the above testimony

indicates only that the Box of Slime and the headband, together,

were valued at $20.80. Nonetheless, because Takahashi testified
that Bato "paid the cheaper price of the slime" and "exited the

store with the more expensive slime," along with reasonable

inferences from the testimony concerning the total price of the

items, this testimony is sufficient for a trier of fact to find

that Bato paid less than the full value of the Box of Slime.

Moreover, Takahashi also testified that Bato "failed to pay for

one of the items" she took from the store. This is also evidence

supporting a finding that Bato took an item of "any value"

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without paying. Because a Theft 4 charge requires the State to

prove only that the defendant stole an item of "any value,"

Takahashi's testimony is substantial evidence to support the

conviction. See Matavale, 115 Hawai#i at 157-58, 166 P.3d at

330-31. Thus, Bato's final point of error lacks merit.

For these reasons, the District Court's February 13,

2019 Judgment and September 4, 2019 Order Denying Motion for New

Trial are affirmed.

DATED: Honolulu, Hawai#i, September 30, 2021.
On the briefs:
/s/ Katherine G. Leonard
Andre' S. Wooten, Presiding Judge
for Defendant-Appellant.
/s/ Keith K. Hiraoka
Donn Fudo, Associate Judge
Deputy Prosecuting Attorney,
City and County of Honolulu, /s/ Karen T. Nakasone
for Plaintiff-Appellee. Associate Judge

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