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NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER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.
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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).

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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.

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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.)

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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

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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.

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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

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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

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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.

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