State v. Lora
| Decision Date | 16 June 2020 |
| Docket Number | SCWC-18-0000548 |
| Citation | 465 P.3d 745 |
| Parties | STATE of Hawai‘i, Respondent/Plaintiff-Appellee, v. Kevin LORA, Petitioner/Defendant-Appellant. |
| Court | Hawaii Supreme Court |
Kevin A. Lora, pro se, on the application, Emmanuel V. Tipon on the brief, for petitioner.
Stephen K. Tsushima, Honolulu, for respondent.
The defendant in this case was convicted after a jury trial that turned on the credibility of the complaining witness's testimony. This case raises the issue of whether a portion of that testimony was properly admitted for the purpose of bolstering the credibility of the witness's account of the incident. After careful review of the record, we conclude that the adduced testimony was not relevant to the witness's credibility. Further, we find that the circuit court's erroneous admission of the witness's testimony was highly prejudicial to the defense and not harmless beyond a reasonable doubt. Additionally, we address the circuit court's consideration of the defendant's request to be sentenced as a young adult in order to review the Intermediate Court of Appeals’ interpretation of the relevant statute and to provide guidance in the event the issue arises on remand.
On May 4, 2017, Kevin Lora was indicted in the Circuit Court of the First Circuit (circuit court) for one count of sexual assault in the first degree in violation of Hawai‘i Revised Statutes (HRS) § 707-730(1)(a)1 and one count of sexual assault in the third degree in violation of HRS § 707-732(1)(f).2 The jury trial began on March 19, 2018.3
The Complaining Witness (CW) testified that she came to Hawai‘i for a vacation on May 11, 2016, with her sister and a friend, Haley Harlow. The group stayed at a hotel in Waikiki together for the duration of their trip. On Friday, May 13, the group "hiked Koko Head" around midday, which made the CW's legs and back sore. The next evening, the group had dinner together and then decided to go to an establishment called "Top of Waikiki" to enjoy the view. While walking there, the group met a man named "Rob." The four proceeded to Top of Waikiki, where the CW had one glass of wine and one serving of rum. The group then attempted to enter a nightclub downstairs, the CW testified, but she and Harlow were unable to get in because they were not wearing the proper attire. Rob remained at the nightclub and the three women decided to go to "Playbar," a different nightclub they had visited earlier in their trip.
Before they entered Playbar, the CW stated, she and her sister had "an awkward exchange," and the CW left the group and returned to their hotel alone. Once at her hotel room, she changed into a skirt because of the heat. She received text messages from Harlow and her sister asking her to return to Playbar. She also received a text message from Rob, with whom she had exchanged numbers at Top of Waikiki. Rob asked if she was staying in for the rest of the evening, and the CW responded that she was but the other two women were at Playbar. Rob asked if she would like to go back to Playbar together, and the CW agreed to do so. The two met up and walked to Playbar together, where they rejoined Harlow and the CW's sister. The CW believed that they arrived at Playbar between 9:30 and 10:00 p.m., but she was not certain.
Around 11:00 p.m., the CW testified, her sister left Playbar and returned to the hotel. Harlow and the CW remained there together until around 1:30 or 2:00 a.m. when Harlow also returned to the hotel. The CW stated that she remained at Playbar until around 2:30 a.m. at which time she left to return to her hotel. She had six servings of alcohol while at Playbar. She was feeling "a little dizzy" as she left but attributed her physical condition to the change in environment between the nightclub and the street. The CW said that she was not feeling drunk at that time.
Harlow testified that after she left Playbar around 1:30 a.m., she met a man on the street who came up to her and introduced himself as Dominick. At trial, Harlow identified Lora as the man she met that night. She stated that Lora walked her back to her hotel where they exchanged phone numbers. After she returned to her hotel room, Harlow testified, the two conversed for a while through text messages. Harlow asked if Lora would come back to her hotel and walk with her to the water, and Lora agreed to do so. The two met up, walked to the beach, and sat on the sand by the water. They talked for a while and then started to kiss. Harlow testified that Lora wanted to go further, but she told him she was not interested in doing so. Lora said that he respected that, and they continued talking. Soon after, they were approached by a police officer who told them the beach was closed. They then returned to Harlow's hotel and parted ways near the lobby. Harlow stated that after returning to her room, she exchanged further text messages with Lora. Following the text message conversation, which began at 3:03 a.m. and involved only a few messages, Harlow fell asleep.
The CW testified that as she was returning to her hotel from Playbar, she was approached just outside her hotel by a man who introduced himself as Dominick. The CW identified Lora at trial as the same man. After briefly engaging in small talk, Lora asked the CW if she wanted to walk on the beach with him. The CW stated that she showed Lora her ring and told him she was married and not interested.4 According to the CW, Lora put his left arm around her back so they were standing close together and reached across and pushed his right thumb into her arm very hard. He then told the CW that they were going for a walk on the beach. They began walking toward the beach, the CW testified, and Lora maintained a tight grip on her arms and shirt as they walked, which caused the seams of her shirt to rip. The CW stated that she became fearful and "felt very frozen." At some point during the walk, the CW stated, Lora shifted his grip on her and grasped the side of her neck. As they neared the beach, the CW testified, she began to physically struggle against Lora and tried to throw her body weight to the ground.5 She stayed on her feet, however, and did not fall.
When they arrived at the beach, she stepped off the two-foot tall seawall onto the shore to try to create distance between them. Lora removed his pants and shoes and followed her onto the beach. The CW stated that she was standing with her back facing the seawall and Lora was in front of her. The CW said that Lora then grabbed her hand and placed it on his penis over his underwear. At this point, the CW testified, she raised her voice and began to yell and plead with him. Lora asked her, "So are you going to go down on me now, or should I force you?" The CW testified that she was pressed against the seawall, which was digging into her lower back, and Lora was in front of her. The CW said that she attempted to move away from him and ended up lying on her back in the sand on the same level as the seawall. He held her down by her arms and ripped her shirt in an attempt to expose her right breast. The CW stated that while she was struggling Lora's saliva got on her chest. Lora was pressing down on her arms on the insides of her biceps, the CW stated, and he was gripping her so tight that she lost feeling in her hands. She related that it felt like "he was digging a knife into my arms"; she was telling him to please stop and that she did not want to do this. The CW testified that Lora then pushed up her skirt and penetrated her vagina with his penis. The CW stated that she struggled at first and then went limp. During the struggle, the CW testified, she yelled and called out hoping that someone might hear her. The CW also stated that Lora headbutted her in the forehead during the struggle. He eventually stopped, the CW stated, and she believed that he had ejaculated. After Lora finished, he gathered his clothes and sprinted away.
The CW testified that she immediately left the beach and made her way back to the street. She collapsed on the ground near a crosswalk and began to cry and call out for help. A man approached her and asked if she was okay, and she told him, "No, I'm not okay, I've just been raped." The man helped her get to a nearby police station, which was in sight of where she had collapsed on the ground.
The man, Larry Macri, testified that he was working at a restaurant in Waikiki at that time. Macri stated that he got off work sometime after 1:00 a.m. on May 15, 2016. He had missed the last bus because he got off work late, so he decided to wait at a bench in that area until 4:15 a.m. when the buses would start running again. While he was sitting at the bench, Macri saw the CW, who was about fifty feet away, walk from the beach toward the crosswalk. The CW was crying and appeared distraught, so he approached her. Macri testified that the CW's clothes appeared to be intact, and she was wearing pants. Macri helped the CW reach the police station and subsequently gave a written statement to a police officer around 4:25 in the morning. Macri stated that from where he was sitting on the bench, he "absolutely" would have heard any screaming or yelling coming from the area of the beach that the CW had come from, but he did not hear screaming or yelling at any time.
Honolulu Police Department (HPD) Officer Jon Kawana testified that he was working at the Waikiki substation on May 15, 2016. The CW came into the substation around 3:21 a.m., accompanied by Macri. Officer Kawana took the CW's statement and prepared a written report. In the report, Officer Kawana observed that the CW was wearing a shirt and black and white pants. HPD Officer Leslie Garner was also working at the Waikiki substation at that time. Officer Garner testified that officers called for an ambulance to treat the CW immediately on-site based on...
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