83 Hawai'i 308, State v. Buch, 18972

Citation83 Hawaii 308,926 P.2d 599
Decision Date09 October 1996
Docket NumberNo. 18972,18972
Parties83 Hawai'i 308 STATE of Hawai'i, Plaintiff-Appellee, v. Walter L. BUCH, Defendant-Appellant.
CourtSupreme Court of Hawai'i

Brian Custer, on the briefs, Honolulu, for defendant-appellant.

James M. Anderson, on the briefs, Deputy Prosecuting Attorney, Honolulu, for plaintiff-appellee.

Before MOON, C.J., and KLEIN, LEVINSON, NAKAYAMA and RAMIL, JJ.

MOON, Chief Justice.

Defendant-appellant Walter L. Buch appeals from his conviction, after a jury trial, for sexual assault in the third degree, in violation of Hawai'i Revised Statutes (HRS) § 707-732(1)(b) (1993). 1 Buch alleges as error the circuit court's: (1) refusal to instruct the jury on the "lesser included offense" of sexual assault in the fourth degree; (2) denial of his motion to suppress statements he claims were involuntarily given; and (3) denial of his motion for a mental examination of the complaining witness. For the reasons stated below, we affirm.

I. BACKGROUND

At trial, the complaining witness, who was thirteen years old at the time of the incident in question, testified that, on the afternoon of March 11, 1992, he had finished lifting weights at the Central YMCA and was taking a shower. Buch, whom the complaining witness had never seen before, entered the shower room and initiated a conversation. Buch kept saying how much he liked kids and told the complaining witness that he had a nice smile. When they had finished showering, Buch took the complaining witness to the front desk to show him how to check out equipment. While he was talking to the complaining witness at the front desk, Buch kept placing his hand on the complaining witness's back and leading him away from the desk.

Buch then took the complaining witness upstairs to his room on the third floor so that he could give the complaining witness his telephone number. Once in Buch's room, Buch opened his wallet, showed the complaining witness a badge, and told the complaining witness that he was a paramedic for the city and county. Buch then told the complaining witness that he had some cream that would help his acne. He asked the complaining witness if he had money, gave him five dollars, and offered the complaining witness cigarettes and beer.

Buch began to touch the complaining witness under his arms while the complaining witness sat on the bed and asked if it hurt. Buch then worked down to the complaining witness's hips and, after taking off complaining witness's shirt, pressed his lower abdomen. The complaining witness did not remember how his pants got off, but Buch then was holding the complaining witness's penis and testicles, under his underwear, and asked if it hurt.

When Buch turned his back, the complaining witness put his clothes back on. Buch said, "Oh, yeah, put on your clothes." Buch then put cream on the complaining witness's face and told him that it was "real powerful" and that he should come back twice a week for more cream. The complaining witness asked Buch if Buch would like to meet his mother, and Buch said, "Oh, no. Don't tell nobody." At that point, the complaining witness suspected that something was wrong. Buch told the complaining witness to give him a hug and then walked him downstairs. Buch and the complaining witness were in Buch's room for approximately fifteen minutes, between 6:15 and 6:30 p.m. On the way out, they saw Carey Won, the teen programs director for the YMCA, who told Buch that he was not supposed to have guests upstairs.

The complaining witness then took the bus to his mother's work place. When asked why he was late, the complaining witness told his mother what had happened, and his mother called the police. Later the same evening, March 11, 1992, the complaining witness identified Buch at a field show-up in front of the YMCA, and Buch was arrested. The following day, Buch gave a tape-recorded statement to Honolulu Police Department (HPD) Detective Timothy Mimaki at the Honolulu Police Station. Buch signed an HPD form 81, indicating that he had been informed of his constitutional rights and waived the presence of an attorney. In his tape-recorded statement, Buch did not admit to any offense.

Buch was indicted on December 14, 1993. The single-count indictment alleged that:

On or about the 11th day of March, 1992, in the City and County of Honolulu, State of Hawaii, Walter L. Buch did knowingly subject to sexual contact, [the complaining witness], who is less than fourteen years old and not his spouse, by placing his hand on [the complaining witness's] penis, thereby committing the offense of Sexual Assault in the Third Degree, in violation of Section 707-732(1)(b) of the Hawaii Revised Statutes.

On October 11, 1994, Buch filed a motion for mental examination of the complaining witness, arguing that

defendant is raising the issue of the effect of the victim's mental and/or emotional condition upon his ... credibility based on his claim that the victim is homosexual and that the victim's accusation was part of an attempt to gain money from the defendant. In addition, the defendant is undergoing a psychosexual evaluation as part of his examination for fitness/responsibility.

The prosecution argued that the victim's sexual tendencies and desire for money, even if true, did not present sufficient and compelling reasons for a court-ordered mental examination. On December 1, 1994, following a November 14, 1994 hearing on the motion, the court issued its written order denying Buch's motion. The court concluded that "the allegation that the complaining witness is a homosexual or that he wanted money is neither [a] sufficient [n]or compelling ground for such an examination. The issue of credibility is [an] insufficient basis to have the complaining witness undergo a mental examination; [credibility] is for the jury to decide."

On October 21, 1994, Buch filed a motion to suppress the statement he made to the police the day after his arrest. He asserted that his statements were involuntary and should be suppressed because: (1) no one read Buch his Miranda rights when he was arrested, and, (2) before the tape-recorded interview, Detective Mimaki told Buch that, if he did not talk, Mimaki would make sure that a high bail would be set and that Buch would lose his paramedic license. Buch contended that:

The effect of these pre-questioning statements on the defendant were to make the defendant: (1) suffer psychological trauma, (2) worry regarding his paramedic career, (3) be embarrassed by the entire situation, (4) worry about making the front-page of the local newspapers as he had in the past, (5) experience exacerbated symptoms of stress and hypertension for which he was already collecting worker's comp[ensation] payments, and (6) be reminded of various unpleasant law-enforcement related memories of events which [had] occurred 30 years ago.

The court orally denied the motion to suppress following the November 30, 1994 hearing. The court's "Findings of Fact [ (FOF) ], Conclusions of Law [ (COL) ] and Order Denying Defendant's Motion to Suppress Statements" was filed on December 8, 1994. The court found, inter alia, that "Defendant was cooperative and willing to engage in the interrogation process[,]" FOF 6, and that "Defendant understood his Constitutional Rights and Defendant did waive his rights voluntarily, knowingly, and intelligently." FOF 18. The court concluded that "[i]n this case, Defendant voluntarily gave a statement to Detective Mimaki." COL 6.

The evidentiary phase of Buch's trial began on December 20, 1994 and lasted only one day. In addition to the testimony of the complaining witness, the prosecution's evidence included testimony from the complaining witness's mother, the investigating HPD officers, and Won. At the close of the prosecution's case, Buch moved for a judgment of acquittal, asserting that the prosecution had not proven beyond a reasonable doubt that Buch knew that the complaining witness was less than fourteen years old. The court denied the motion, ruling that the legislative history of the precursor statutes to the charged offense demonstrated that the legislature did not intend to require actual knowledge of the age of the victim, and, therefore, the prosecution was not required to prove that Buch knew that the complaining witness was less than fourteen years old.

Buch was the sole defense witness. With respect to the events of March 11, 1992, Buch testified that he was showering at the YMCA when the complaining witness came in to take a shower. Buch testified that

the immediate thing that came to my mind was how come teenagers at the YMCA don't have their own shower room because all the years that I worked at Saudi Arabia there's shower rooms and bathrooms separately for the men and the boys as well as for the wom[e]n and for the girls. And then I had this idea maybe I should donate some money to the YMCA and match them so I can build a separate shower for the teenagers at the YMCA.

Buch stated that the complaining witness appeared to be between fourteen and sixteen years old. He said that the complaining witness initiated a conversation with him when the two were drying off. He testified that he could not remember exactly what the complaining witness said "because at the time I was thinking how come this teenager's--this baby is showering with all the guys and especially knowing about the YMCA, you know." Buch said that, when the complaining witness asked him where the basketball court was, rather than tell him, he took the complaining witness to Won's office, and Buch was "kind of upset with [Won] that time because I just made that announcement, $5,000 donation announcement, plus--plus donating that $400 cash to the teen youth program in February." Buch then took the complaining witness to show him where the basketball and racquetball courts were located.

Buch testified that, because the complaining witness said that he was late to meet his mother, Buch...

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