State v. Pokipala

1

STATE OF HAWAI'I, Plaintiff-Appellee, v. DAVID J. POKIPALA, Defendant-Appellant

No. CAAP-19-0000086

Intermediate Court of Appeals of Hawai'i

March 25, 2024

NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT (CASE NO 1CPC-18-0001807)

Richard S. Kawana for Defendant-Appellant.

Sonja P. McCullen, Deputy Prosecuting Attorney, City & County of Honolulu, for Plaintiff-Appellee.

(By Leonard, Acting C.J., and Wadsworth and Nakasone, JJ.)

SUMMARY DISPOSITION ORDER

Defendant-Appellant David J. Pokipala (Pokipala) appeals from the Judgment of Conviction and Sentence; Notice of Entry (Judgment), entered on January 10, 2019, in the Circuit Court of the First Circuit (Circuit Court).^[1] Following a jury trial, Pokipala was convicted of Assault in the Third Degree, in violation of Hawaii Revised Statutes (HRS) § 707-712(1)(a) (2014).^[2] On appeal, Pokipala contends that: (1) the Circuit Court erred in denying his motion for mistrial, "when a prosecution witness [i.e., the complaining witness's (CW) daughter (Daughter)] in a non-responsive answer to questioning testified about seeking a [temporary restraining order] against [Pokipala]"; (2) the Circuit Court erred in denying Pokipala's motion for judgment of acquittal at the end of the prosecution's case and again on renewed motion after the defense rested;^[3] (3) there was insufficient evidence to convict Pokipala; and (4) a deputy prosecuting attorney (DPA) for Plaintiff-Appellee State of Hawai'i (State) "engaged in improper vouching by interjecting his personal intent to prove his case in his opening statement, . . . and by personally exhorting jury members to convict in his closing argument."

After reviewing the record on appeal and the relevant legal authorities, and giving due consideration to the issues raised and the arguments advanced by the parties, we resolve Pokipala's contentions as follows, and affirm.

(1) Pokipala contends that the Circuit Court abused its discretion in denying his motion for a mistrial after Daughter made non-responsive statements during her testimony. Specifically, Pokipala cites two instances in Daughter's testimony which he claims prejudiced the jury against him and warranted granting a mistrial: (1) when Daughter testified that the day after the incident, she "came down to Honolulu to go file a restraining order" (First Statement); and (2) when Daughter testified that later the same day, when she "came to [her] dad's house[,]" Pokipala "approached [her] . . . car" (Second Statement).

"The denial of a motion for mistrial or new trial '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) (quoting State v. Furutani, 76 Hawai'i 172, 178-79, 873 P.2d 51, 57-58 (1994)).

Here, regarding the First Statement, the record shows that Pokipala quickly objected when it was made, after which the Circuit Court immediately sustained the objection, struck the testimony at issue, and instructed the jury "to disregard the statement of the witness as to what she did." After the jury was released for the day, Pokipala moved for a mistrial based on the First Statement, which the Circuit Court denied. Following the close of evidence, when instructing the jury, the Circuit Court confirmed that each juror had a copy of the instructions and specifically instructed, "You must disregard entirely any matter which the court has ordered stricken."

A jury is presumed to follow the instructions it is given by the court. State v. Acker, 133 Hawai'i 253, 278, 327 P.3d 931, 956 (2014). On this record, we conclude that the Circuit Court did not abuse its discretion in denying the motion for mistrial based on the First Statement.

Regarding the Second Statement, although Pokipala appears to have objected to it as it was being made, he did not move to strike the testimony at issue, and he did not move for a mistrial based on the Second Statement. We thus deem waived Pokipala's argument that the Circuit Court abused its discretion in denying a purported motion for mistrial based on the Second Statement. See State v. Wilson, 141 Hawai'i 385, 391, 410 P.3d 865, 871 (App. 2017).

(2) Pokipala contends that the Circuit Court erred in denying his motions for judgment of acquittal because "a reasonable mind would not fairly conclude guilt beyond a reasonable doubt that . . . Pokipala committed the offense he was charged with - assault in the third degree, a misdemeanor." Pokipala argues that "[t]he evidence most favorable to the prosecution clearly indicates that the offense allegedly committed was . . . a mutual affray - a petty misdemeanor - a fight or scuffle entered into by mutual consent."

"The standard to be applied by the trial court in ruling upon a motion for a judgment of acquittal is whether, upon the evidence viewed in the light most favorable to the prosecution and in full recognition of the province of the trier of fact, a reasonable mind might fairly conclude guilt beyond a reasonable doubt." [State v. ]Keawe, 107 Hawai'i [1,] 4, 108 P.3d [304,] 307[ (2005)]. This court employs the same standard of review in reviewing a motion for a judgment of acquittal. Id.

State v. Walton, 133 Hawai'i 66, 90, 324 P.3d 876, 900 (2014) (original brackets omitted).

In order to convict Pokipala for a violation of HRS § 707-712(1)(a), the State was required to prove beyond a reasonable doubt that Pokipala "[intentionally, knowingly, or recklessly cause[d] bodily injury to" CW. HRS § 707-712(1)(a); see id. § 707-700 ("'Bodily injury' means physical pain, illness, or any impairment of physical condition."). At trial, CW testified that when Pokipala entered CW's property and directly approached CW "[f]ace-to-face" within inches of CW, CW only "stood [his] ground" and "didn't move" - "just stood still, [did] nothing." CW testified that Pokipala then head-butted him, without CW having time to avoid the head-butt, resulting in a painful injury, after which CW walked away. CW specifically described the injury from the head-butt as "red, bruised . . . [s]wollen" and that CW had pain for "probably maybe a week or so." CW, Daughter, and Honolulu Police Department Officer Vincent Tripi all testified to the appearance of CW's injury, and multiple photographs showing CW's injury were entered into evidence without objection. Pokipala points to no evidence that CW was injured in a fight or scuffle entered into by mutual consent.

Based on the evidence adduced at trial, viewed in the light most-favorable to the State, a reasonable trier of fact could conclude beyond a reasonable doubt that Pokipala intentionally, knowingly, or recklessly caused bodily injury to CW, committing the misdemeanor of Assault in the Third Degree. See Walton, 133 Hawai'i at 90, 324 P.3d at 900. The Circuit Court did not err in denying Pokipala's motions for judgment of acquittal.

(3) Pokipala similarly contends there was insufficient evidence adduced at trial to support his conviction. He argues that neither CW nor Daughter were credible, and their testimony was so marked with bias against Pokipala as to negate any probative value.

Sufficient evidence to support a conviction "requires substantial evidence as to every material element of the offense charged." State v. Grace, 107 Hawai'i 133, 139, 111 P.3d 28, 34 (App. 2005) (quoting State v. Ferrer, 95 Hawai'i 409, 422, 23 P.3d 744, 757 (App. 2001)). Substantial evidence is "credible evidence which is of sufficient quality and probative value to enable a person of reasonable caution to support a conclusion." Id. (quoting Ferrer, 95 Hawai'i at 422, 23 P.3d at 757). The evidence must be "viewed in the light most favorable to the prosecution and in full recognition of the province of the trier of fact," who must "determine credibility, weigh the evidence, and draw justifiable inferences of fact." Id. (quoting Ferrer, 95 Hawai'i at 422, 23 P.3d at 757).

Upon review of the record, including the evidence described above we conclude there was substantial evidence that Pokipala intentionally, knowingly, or recklessly caused bodily injury to CW, committing the misdemeanor of Assault in the Third Degree. Accordingly, on this record, the...