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State of Hawaii v. Kelly Rivera

November 16, 2012

STATE OF HAWAII,
PLAINTIFF-APPELLEE,
v.
KELLY RIVERA,
DEFENDANT-APPELLANT.



APPEAL FROM THE FAMILY COURT OF THE FIRST CIRCUIT (FC-CRIMINAL NO. 09-1-1355)

NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER

SUMMARY DISPOSITION ORDER

(By: Foley, Presiding Judge, Reifurth and Ginoza, JJ.)

Defendant-Appellant Kelly Rivera (Rivera) appeals from the Judgment of Conviction and Sentence (Judgment) entered on August 26, 2009 in the Family Court of the First Circuit *fn1 (the family court). The family court found Rivera guilty of Harassment, in violation of Hawaii Revised Statutes (HRS) § 711- 1106(1)(a) (Supp. 2011).*fn2

On appeal, Rivera contends: (1) the family court abused its discretion and violated Rivera's constitutional rights when it denied her motion to continue trial; (2) the family court's Findings of Fact (FOFs) 7-19, 22, and 23 are clearly erroneous because they are inconsistent with the sole act upon which the family court explicitly based its finding of guilt; (3) the family court's Conclusion of Law (COL) 3 is wrong because it is inconsistent with the court's oral ruling and COLs 3 and 5 are wrong because there was insufficient evidence to disprove the parental discipline defense beyond a reasonable doubt; and (4) the family court erred when it failed to afford Rivera her right to allocution under Hawaii Rules of Penal Procedure (HRPP) Rule 32, and when it failed to request a pre-sentence report as required under HRS § 706-601 (1993 Repl. & Supp. 2011) because Rivera was only nineteen years old at the time of sentencing. 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, as well as the relevant statutory and case law, we resolve Rivera's points of error as follows: (1) The family court did not abuse its discretion when it denied Rivera's motion to continue trial. At the first trial setting, the defense requested a continuance in the normal course, but the family court granted only a two-day continuance because the complaining witness (Minor) was leaving the state on the evening of May 8, 2009.

At trial on May 8, 2009, defense counsel again requested a continuance to give him "time to prepare, to talk to all the witnesses, to talk to the teachers to see what information . . . could be used." Rivera contends that, in the two-day span between May 6-8, 2009, "Rivera had subpoenaed several witnesses from [Minor's] school including the principal, vice-principal, and teachers; however, [defense counsel] had not had a chance to talk to the witnesses." Defense counsel wanted such information, in part, to cross-examine Minor and Minor's mother (Mother). On May 7, 2009, Rivera had also filed a "Notice of Intent to Rely Upon Other Crimes, Wrongs, Acts" (Notice) related to Minor's history of disruptive behavior and other misconduct. The prosecution stated that it was willing to stipulate to the facts in the Notice or to defense counsel's offer of proof.

The family court denied the request to further continue trial, noting that the "initial arraignment and plea in this matter was set on April 6th, 2009. Trial was set for May 6th . . . giving the defense approximately four weeks to prepare for trial." Also influencing the family court's decision was the State's representation that Minor was leaving the islands that night. After cross-examining Minor and Mother, defense counsel noted:

let the record to reflect should we talk to [potential defense] witnesses and should other information come out that could have been used to cross-examine [Minor] as well as [Mother] . . . defense counsel does not have that opportunity to do so because [Minor and Mother are] flying out tonight.

Under the circumstances of this case, the family court did not abuse its discretion or deny Rivera her constitutional rights. This court has previously noted that:

In moving for a continuance based on the unavailability of a witness, the movant must generally show that:

due diligence has been exercised to obtain the attendance of the witness, that substantial favorable evidence would be tendered by the witness, that the witness is available and willing to testify, and that the denial of the continuance would materially prejudice the defendant.

State v. Lee, 9 Haw. App. 600, 604, 856 P.2d 1279, 1282 (1993) (quoting United States v. Walker, 621 F.2d 163, 168 (5th Cir.1980) cert. denied, 450 U.S. 1000, 101 S.Ct. 1707, 68 L.Ed.2d 202 (1981)); see also State v. Billam-Walker, 121 Hawaii 228, 230-31, 216 P.3d 1251, 1253-54 (App. 2009). Here, although the defense had a month to prepare for trial, witnesses from Minor's school had only been subpoenaed on May 7, 2009, and there was no showing that these witnesses would provide substantial favorable evidence for Rivera, that they were available and willing to testify, and that denial of a continuance would materially prejudice Rivera.

Moreover, "[a]buse of discretion will not ordinarily be found in the denial of a continuance to enable a temporarily unavailable witness to be called whose testimony will not bear directly upon the issue of guilt and who is called only for purposes of impeachment." State v. Altergott, 57 Haw. 492, 508, 559 P.2d 728, 739 (1977). Here, the information about Minor's misbehavior in other situations did not bear directly on the issue of Rivera's guilt, and thus under Altergott, denial of a continuance in such circumstances was not an abuse of discretion. We further note that, to the extent information about Minor's misbehavior was important to the defense, the prosecution was willing to stipulate to the facts in the Notice but the defense declined to enter into such a stipulation. Also, trial was subsequently continued several times and when trial commenced again on August 26, 2009, defense counsel called several witnesses but did not call any school personnel or behavioral health staff, made no representation that the defense needed to recall Minor or Mother, and did not claim that Rivera had been unable to pursue her theory of the case due to the court's denial of her request to continue trial on May 8, 2009.

Rivera also argues that in light of the State's representation that Minor was leaving for the mainland the evening of May 8, 2009, the State should have "file[d] a request for firm trial setting under HRPP Rule 12.2." This argument fails because a party is not required under HRPP 12.2 to file a motion for firm trial setting under the circumstances of this case, and Rivera cites to no authority to show otherwise. Rivera's additional argument, that the State should have shown a good-faith effort to secure Minor's presence, also fails. Minor was available on the first day of trial, testified, and defense counsel cross-examined him. The State did not argue that Minor was unavailable on the day of trial and seek to admit an out-of-court statement from Minor. Thus, Rivera's reliance on State v. Lee, 83 Hawaii 267, 925 P.2d 1091 (1996) and State v. Ortiz, 74 Haw. 343, 845 P.2d 547 (1993), which address the right to confront witnesses, is misplaced.

Based on the circumstances in this case, the family court did not abuse its discretion when it denied Rivera's motion ...


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