APPEAL FROM THE CIRCUIT COURT OF THE THIRD CIRCUIT (CR. NO. 07-1-0547)
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER
(By: Foley, Presiding Judge, Fujise and Leonard, JJ.)
Defendant-Appellant Sharon Louise Selwyn (Selwyn) appeals from the Judgment of Conviction and Probation Sentence entered by the Circuit Court of the Third Circuit (Circuit Court) on June 23, 2009.*fn1 Selwyn was charged by an indictment filed on November 8, 2007 with: (1) False Reporting to Law Enforcement Authorities, in violation of Hawaii Revised Statutes (HRS) § 710 1015(1) (1993); and (2) Perjury, in violation of HRS § 710 1060(1) (1993). The perjury count was dismissed without prejudice. After a jury trial, Selwyn was convicted of False Reporting to a Law Enforcement Authority.
This case arises out of Selwyn's December 19, 2005 report to Officer Ivan Tamura (Tamura) that, on November 2, 2005, Chad Sohriakoff (Sohriakoff) sexually assaulted her inside of her apartment at Kamuela Senior Housing (Kamuela Housing) between 5:00-5:15 p.m. At the time of the alleged assault Sohriakoff was an employee of Hawaii Affordable Properties (HAP), a company owned by his parents. As an employee of HAP, Sohriakoff was the property manager of Kamuela Housing. Sohriakoff testified that while he had met with Selwyn at Kamuela Housing on that day, he did not interact with Selwyn after 4:45 p.m., when he left the complex, and that he did not assault her.
Selwyn moved into Kamuela Housing in January of 2005. Although the apartment was brand new when she moved into it, Selwyn testified that she soon began experiencing significant problems with the unit, including a malfunctioning refrigerator, a malfunctioning smoke alarm, and a roach infestation. In response to these problems, Selwyn claims she contacted Dan Cook (Cook), an on-site resident manager, Sohriakoff, and Keith Kato (Kato), the project director.
Selwyn testified that, on November 2, 2005, Sohriakoff arrived early in the morning to help her with the problems affecting her unit. But, because she was not expecting him and had already planned to run errands that day, they both agreed to contact Selwyn's caseworker, Nidhi Chabora (Chabora), and schedule a meeting with all parties present for a later time. According to Selwyn, Sohriakoff returned to her apartment later that day with a "big grin on his face saying, 'You know, I really wanna help you, I wanna help you, I wanna make things better for you here.'" Sohriakoff then pushed his way into her apartment, locked the door behind him, and then began "using foul language." Selwyn claims he then started grabbing her breast very hard and backed her up onto her bed. Selwyn testified that she yelled at Sohriakoff to "get out" and that "you cannot touch me like this." Once on her bed, Sohriakoff allegedly got on top of her, held her down by her biceps, and began "slobbering" on her. According to Selwyn's report to Tamura, the assault occurred between 5:00-5:15 p.m.
Selwyn testified that, after Sohriakoff left her apartment, she called Chabora and her two best girlfriends.
Selwyn further claimed she called the police but nobody showed up. Evidence also indicates that at 5:33 p.m., moments after the alleged assault, Selwyn sent an email to Kato and HAP. In the email, Selwyn complained about Sohriakoff's persistent knocking on her door that day but did not mention Sohriakoff sexually assaulting her.
Selwyn testified that, on November 7, 2005, she again contacted the police. Selwyn stateed that she expressed to dispatch that she had been sexually assaulted by her property manager and requested a female officer. According to Selwyn, dispatch replied that no female officers were available but that all officers were trained to handle situations of sexual assault. On November 7, 2005, Officer John Gandolf (Gandolf) and Officer William Vickery (Vickery) were dispatched to Selwyn's residence. Officers Gandolf and Vickery testified that, prior to arrival at Kamuela Housing on November 7, 2005, dispatch had not informed them of the nature of Selwyn's call. Usually, when the nature of a call is as serious as a sexual assault, the dispatcher asks the reporting officers to contact dispatch before heading to the location of the call. In the present case, the officers testified that dispatch did not include such instructions when they were told to report to Kamuela Housing. Furthermore, Gandolf testified that, when the officers arrived at Kamuela Housing and spoke with Selwyn, she did not mention anything about a sexual assault. Instead, Selwyn complained about a neighbor of hers and an unrelated occurrence on November 3, 2005. Officer Vickery testified that he did not know until after he was "all done" that the dispatcher had coded Selwyn's call as a "sexual assault."
Selwyn testified that on November 7, 2005, after contacting the police, Selwyn also called a rape crisis hotline. The hotline advised and aided Selwyn in seeking a temporary restraining order (TRO) against Sohriakoff. In December of 2005, Selwyn was granted a TRO against Sohriakoff. On March 1, 2006, Selwyn attended the first TRO hearing and testified that Sohriakoff had sexually assaulted her. Prior to the second hearing, which was scheduled for March 29, 2006, Selwyn reportedly "received several serious death threats and . . . hang-up calls." Consequently, claiming that she felt threatened, Selwyn failed to appear at the second TRO hearing and her case against Sohriakoff was dismissed. Selwyn testified that she reported the death threats to the F.B.I. but could not recall the name of the agent she spoke with or whether she had complained to the F.B.I.'s internal affairs regarding how her complaint was handled.
After not hearing back from the police regarding her report to Officers Gandolf and Vickery, Selwyn claims she contacted the police to determine the status of her case. According to Selwyn, the police records department replied that they had not received her report and advised her to make a second report. Then, on December 19, 2005, Selwyn spoke with Officer Tamura regarding the incident on November 2, 2005, and they filed a report.
Selwyn further testified that at some point she met with a prosecutor named Janet Garcia (Garcia) and discussed potentially prosecuting Sohriakoff. Selwyn asserted that criminal charges were actually filed against Sohriakoff, but that she eventually withdrew her complaint because her health was deteriorating and she feared the death threats she had received.*fn2
Sohriakoff testified that the events of November 2,
2005, occurred as follows. He arrived at Kamuela Housing at approximately 2:00 p.m. to "deal with some ongoing issues on the property." After speaking with the resident manager at the property, Sohriakoff went to Selwyn's apartment to discuss the issues with her unit. Sohriakoff claimed that Selwyn was unwilling to meet because of some errands she needed to run so they agreed to meet in Selwyn's apartment at 4:00 p.m. Sohriakoff did not enter Selwyn's apartment at this time. In the meantime, Sohriakoff spoke with other tenants of Kamuela Housing. Sohriakoff further testified that, based on the conversations he had with the other tenants, an issue regarding the safety of the tenants required a follow-up with Selwyn before their 4:00 p.m. meeting time. Sohriakoff claims that after knocking on Selwyn's apartment door, Selwyn again told him that she did not want to speak with him so he left without entering into Selwyn's apartment.
Sometime afterwards, Sohriakoff testified that while conducting errands around Kamuela Housing he noticed three tenants arguing with Selwyn. According to Sohriakoff's testimony, Selwyn returned to her apartment as he approached the altercation. Sohriakoff claimed that after asking the other tenants to calm down, he followed Selwyn to her apartment to discuss what had occurred and knocked on her door "a little after 4 [p.m.]." When Selwyn did not respond, Sohriakoff claimed that he spoke with the other tenants a little longer and left Kamuela Housing at approximately 4:45 p.m.
The next day, November 3, 2005, Sohriakoff wrote up violation notices against Selwyn. On November 18 or 19, 2005, Sohriakoff sent Selwyn a "lease termination notice" which indicated HAP's intent to not renew Selwyn's lease on Jan 5 or 6, 2006. Sohriakoff insisted that the notice was not in any way retaliatory and was decided by the staff at HAP. The testimony of three other residents of Kamuela Housing was presented. Pricilia Oana (Oana) lived across from Selwyn's building and could see the structure from her front door. In her testimony, Oana explained that she noticed Sohriakoff approach Selwyn's door on two separate occasions on November 2, 2005. On neither occasion did Oana see Sohriakoff enter into Selwyn's apartment. Oana also testified that she witnessed Sohriakoff leave Kamuela Housing some time between 4:30-6:30 p.m. Oana had previously told police that she witnessed Sohriakoff leave between 4:30-5:00 p.m. After Oana witnessed Sohriakoff leave, she stayed outside of her apartment until 6:30 p.m. and did not see anyone else approach Selwyn's apartment during that time.
Archie Kaaua (Kaaua) was also a resident at Kamuela Housing and could see Selwyn's apartment because it neighbored his. Kaaua testified that, on November 2, 2005, he saw Sohriakoff outside of Selwyn's apartment but did not see him enter at any time.
Finally, Alice Quanan (Quanan) was also a resident at Kamuela Housing during the date of the alleged assault. Quanan testified that she could "very clearly" see Selwyn's apartment from her own. Furthermore, Quanan saw Sohriakoff visit Selwyn's apartment a total of three times on November 2, 2005, with the first visit occurring sometime before 2:30 p.m. On no occasion did Quanan see Sohriakoff enter Selwyn's apartment. Quanan also testified that she "clearly" saw Sohriakoff ...