This decision is published in table format in the Pacific and Hawai'i reporter
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT. (CR. NO. 12-1-1796).
On the briefs: Dana S. Ishibashi, for Defendant-Appellant.
James M. Anderson, Deputy Prosecuting Attorney, City and County of Honolulu, for Plaintiff-Appellee.
By: Nakamura, C.J., Foley and Fujise, JJ.
SUMMARY DISPOSITION ORDER
Defendant-Appellant Brandon J. Dalumpinis (Defendant) appeals from the September 11, 2013 " Judgment of Conviction and Sentence" (Judgment) entered in the Circuit Court of the First Circuit (circuit court). Defendant was found guilty on Counts I and II of sexual assault in the second degree under Hawaii Revised Statutes (HRS) § 707-731 (1) (a) (Supp. 2013), and on Count III of sexual assault in the fourth degree under HRS § 707-733(1)(a) (1993). Defendant was sentenced to ten years of imprisonment for each count of second degree sexual assault and to one year for sexual assault in the fourth degree, sentences to run concurrently.
(1) the circuit court erred by finding Plaintiff-Appellee State of Hawai'i (State) presented sufficient evidence to support convictions of sexual assault in the second degree in this case; and
(2) Defendant's counsel's representation resulted in the withdrawal or substantial impairment of a potentially meritorious defense.
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, we resolve Defendant's points of error as follows:
Defendant first contends the circuit court erred by finding that the State presented sufficient evidence to support convictions of sexual assault in the second degree. Defendant argues the Complainant's acts " varied" over their four sexual encounters and that Defendant's acts did not change, therefore the circuit court " used the changed behavior of [the Complainant] to infer a change in [Defendant's] state of mind" from the second to the third and fourth encounters. This inference as to Defendant's state of mind was not sufficient evidence to support conviction as second degree sexual assault on Counts I and II.
Sexual assault in the second degree is committed where " a person knowingly subjects another person to an act of sexual penetration by compulsion[.]" HRS § 707-731(1)(a). " Compulsion" means the " absence of consent[.]" HRS § 707-700 (1993). The Complainant testified that she told Defendant to " stop" or said " no" during each of their sexual encounters. The circuit court found the Complainant's testimony that Defendant had subjected her to sexual penetration without her consent on the two charged occasions credible, found the Complainant had not consented to the four sexual encounters, and " disbelieved" the Defendant's testimony. Appellate courts " will not pass upon issues dependent upon the credibility of witnesses and the weight of the evidence[,]" which is within the province of the circuit court, as the trier of fact. State v. Mattiello, 90 Hawai'i 255, 259, 978 P.2d 693, 697 (1999) (quoting State v. Buch, 83 Hawai'i 308, 321, 926 P.2d 599, 612 (1996)). The circuit court's credibility determination was supported by the Complainant's testimony, which was corroborated by testimonies from the Complainant's boyfriend, the physician who attended her after the fourth encounter, and to some extent, the Defendant.
On appeals, the standard of review for sufficiency of the evidence is substantial evidence. See State v. Matavale, 115 Hawai'i 149, 157-58, 166 P.3d 322, 330-31 (2007). Substantial evidence is " credible evidence which is of sufficient quality and probative value to enable a person of reasonable caution to support a conclusion." State v. Batson, 73 Haw. 236, 248-49, 831 P.2d 924, 931 (1992). Further, the circuit court, as trier of fact, " is free to make all reasonable and rational inferences under the facts in evidence, including circumstantial evidence."
Batson, 73 Haw. at 249, 831 P.2d at 931. The ...