APPEAL FROM THE FAMILY COURT OF THE THIRD CIRCUIT KONA DIVISION (CASE NO. FC-CR 11-1-142K)
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER
SUMMARY DISPOSITION ORDER
(By: Nakamura, C.J., and Foley and Reifurth, JJ.)
Defendant-Appellant Kirby Enriques (Enriques), also known as Kirby Jenai Hokulani Enrique, appeals from the Judgment filed in the Family Court of the Third Circuit (Family Court)*fn1 on December 14, 2011. Enriques was charged with abuse of a family or household member, in violation of Hawaii Revised Statutes (HRS) § 709-906(1) (Supp. 2011).*fn2 At the time relevant to this case, the complaining witness (CW) was in a romantic relationship with Enriques, and they were living together.
After a jury-waived bench trial, the Family Court found Enriques guilty as charged. The Family Court sentenced Enriques to two years of probation, subject to the condition that she be imprisoned for a period of thirty days, with all but two days suspended, as long as she remained arrest and conviction free and in compliance with counseling orders.
On appeal, Enriques argues that: (1) there was insufficient evidence to negate her defense of self-defense; and (2) there was insufficient evidence that she acted with the requisite state of mind to physically abuse the CW. We affirm.
The evidence adduced at trial included the following: Enriques and the CW were involved in an altercation outside of a Sack'n Save store. The police were called and the CW gave a signed, written statement to the responding officer. The CW identified Enriques as the person who hurt the CW and described her relationship to Enriques as "Girlfriend." In her written statement, the CW described what happened as follows:
I was buying a beer (12 pack) forgot my Id in my truck so I went out to grab my Id then she [(Enriques)] pushed me and I pushed her back and told her get the fuck away from me and leave me alone. I walked to inside the store and grabbed a 12 pack trying to walk to the cashier to pay for my beer but I just put my beer down and walked out of the store then I was trying to get in my truck but she kept pushing me so I pushed her back and then she pulled my hair and punched me w/her left hand on the right side of my face, then after she punched me I punched her back with my right hand.
The CW also stated that she told Enriques "to leave me alone" before Enriques hurt the CW and that the CW felt pain in her neck from the "pulling of hair[.]"
When called to testify at trial, the CW recanted her statement to the police. The CW denied that Enriques had made physical contact with the CW, pushed the CW, grabbed the CW's hair, or punched the CW during the incident. The Family Court admitted the CW's written statement to the police in evidence. Jose Miranda (Miranda) testified that he saw two females involved in a "public disturbance" at Sack'n Save and separated them. One of the females got into a truck, and the other female, who Miranda identified as Enriques, went over to the driver's side window and "start hitting in there." Miranda stated that Enriques was very upset, hit the window of the truck and the back of the truck, and accused the other female of stealing Enriques's money. Miranda did not see how the altercation started, but stated that he was concerned about Enriques's behavior and described Enriques as "pretty aggressive" and the "more aggressive" person. Miranda called the police but left the scene before they arrived.
Police officer Jeremy Lewis (Officer Lewis) testified that he was one of the officers who responded to the Sack'n Save parking lot. Officer Lewis testified that he ...