APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT (CRIMINAL NO. 08-1-0977)
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER
SUMMARY DISPOSITION ORDER
(By: Foley, Presiding J., Fujise and Ginoza, JJ.)
Defendant-Appellant Enrico Calara (Calara) appeals from the Judgment of Conviction and Probation Sentence entered December 15, 2008 in the Circuit Court of the First Circuit*fn1 (circuit court). Calara was convicted of sexual assault in the fourth degree, in violation of Hawaii Revised Statutes (HRS) § 707-733 (1993).
On appeal, Calara contends the circuit court erred:
(1) by precluding Calara from presenting evidence of the drug pipe found in the room of the complaining witness (CW), and from cross-examining CW as to her drug use for purposes of attacking her perception and recollection;
(2) in admitting Honolulu Police Department (HPD)
Detective Denault's (Denault) testimony that probable cause was established to arrest Calara for sexual assault in the fourth degree;
(3) in admitting CW's statement to a third party (TP) regarding Calara's alleged sexual assault as an "excited utterance";
(4) in admitting evidence of Calara's prior statements to CW in January and February 2007 to establish his intent; and
(5) by committing plain error in failing to provide a limiting instruction at the time of CW's testimony regarding Calara's alleged prior statements and as part of the final charge to the jury.
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 conclude Calara's appeal is without merit.
(1) Calara contends "[t]he circuit court violated
[his] right to present a complete defense by precluding him from introducing evidence of [CW's] drug pipe and by cross-examining [CW] about her drug use for the purposes of attacking her perception and recollection." We disagree. Calara's offer of proof regarding the pipe was that his wife would testify that she discovered a pipe in the room in which CW had been staying and that his wife had called HPD to do a test on the pipe, which smelled "funny." ...