This decision is published in table format in the Pacific and Hawai'i reporter.
APPEAL FROM THE CIRCUIT COURT OF THE FIFTH CIRCUIT. CR. NO. 10-1-0206.
On the briefs: Phyllis J. Hironaka, Deputy Public Defender, for Defendant-Appellant.
Tracy Murakami, Deputy Prosecuting Attorney, County of Kauai, for Plaintiff-Appellee.
By: Leonard and Ginoza, JJ. with Nakamura, C.J., concurring separately.
SUMMARY DISPOSITION ORDER
Defendant-Appellant Corazon D. Constantino (Constantino) appeals from an " Amended Judgment; Guilty Conviction and Probation Sentence, Notice of Entry" (Amended Judgment) filed on October 31, 2013, in the Circuit Court of the Fifth Circuit (circuit court).
An Indictment filed on July 22, 2010 charged Constantino with three Counts: two counts of Sexual Assault in the Third Degree in violation of Hawaii Revised Statutes (HRS) § 707-732(1) (b) (2014) (Counts 1 and 2); and one count of Attempted Sexual Assault in the Third Degree in violation of HRS § § 705-500 (2014) and 707-732 (1) (b) (Count 3).
On December 14, 2010, Constantino filed a Motion to Dismiss (Defective Charge Motion) alleging that the Indictment was defective for failing to allege all elements of the charges, specifically that it failed to allege that Constantino was not married to the complaining witness (CW), a minor. The circuit court denied the motion.
On February 28, 2011, Constantino also filed a Motion to Dismiss for Lack of Probable Cause on grounds that Plaintiff-Appellee State of Hawai'i (State) failed to present evidence of probable cause to the grand jury to support the Indictment, particularly that Constantino was not married to the CW. The circuit court denied the motion.
On January 22, 2013, Constantino filed a motion to reconsider the order denying the Defective Charge Motion (Motion to Reconsider), again challenging the Indictment as being defective for failing to allege that Constantino was not married to the CW. The circuit court issued an order on February 7, 2013 denying the motion.
Subsequently, on March 6, 2013, pursuant to a plea agreement, Constantino pled no-contest to an amended Count 1 -- Sexual Assault in the Third Degree in violation of HRS § 707-732 (1) (f) (2014) -- in return for the State dismissing Counts 2 and 3 with prejudice.
Constantino thereafter sought to withdraw his no-contest plea, but his motion in this regard was denied by the circuit court. The Amended Judgment was subsequently entered against Constantino pursuant to his no-contest plea, convicting him of Sexual Assault in the Third Degree in violation of HRS § 707-732 (1) (f).
On appeal, Constantino's points of error assert that the circuit court erred in: (1) denying his motions for dismissal; and (2) denying ...