State v. Ibarra

Decision Date27 May 2022
Docket NumberCAAP-19-0000697
Citation151 Hawai‘i 168,509 P.3d 1131 (Table)
Parties STATE of Hawai‘i, Plaintiff-Appellee, v. Paola IBARRA, Defendant-Appellant, and Gustavo Ferreira, Co-Defendant
CourtHawaii Court of Appeals

On the briefs:

Myron H. Takemoto, for Defendant-Appellant.

Brian R. Vincent, Deputy Prosecuting Attorney, City and County of Honolulu, for Plaintiff-Appellee.

(By: Leonard, Presiding Judge, Hiraoka and Wadsworth, JJ.)

SUMMARY DISPOSITION ORDER

Defendant-Appellant Paola Ibarra appeals from the "Judgment of Conviction and Probation Sentence" entered by the Circuit Court of the First Circuit on September 11, 2019.1 For the reasons explained below, we affirm the Judgment.

Ibarra was charged by complaint with Sex Trafficking in violation of Hawaii Revised Statutes (HRS ) § 712-1202(l)(a) (Count 1 ) and Kidnapping in violation of HRS § 707-720(1)(e) (Count 2 ). Jury trial began on October 15, 2018. Ibarra testified on her own behalf. Pursuant to an agreement between Ibarra and the complaining witness (CW ), Ibarra bought CW a one-way ticket to Hawai‘i and agreed to pay for a hotel room with the understanding that CW "would pay her back once she made the money." Upon their arrival, Ibarra and CW engaged in prostitution. Ibarra set up "dates" for herself and CW by creating, posting, and re-posting advertisements on a website.

According to Ibarra, CW did not give her money CW made from prostitution "[o]ther than what ... our arrangement was[.]" (Emphasis added.) Ibarra never told CW exactly how much CW owed Ibarra; CW just paid Ibarra as CW earned money from prostitution.

CW testified that she gave all the money that she made from prostitution to Ibarra, then to Ibarra's boyfriend (codefendant Gustavo Ferreira ) when Ferreira arrived in Hawai‘i.

On October 22, 2018, the jury found Ibarra guilty on Count 1 of the included offense of Promoting Prostitution,2 and not guilty on Count 2. Ibarra moved for judgment of acquittal or, in the alternative, a new trial. The circuit court denied the motion. The Judgment was entered on September 11, 2019; Ibarra was sentenced to five years of probation. The circuit court entered findings of fact, conclusions of law, and an order denying the motion for judgment of acquittal or new trial on October 21, 2019. This appeal followed.

Ibarra raises three points of error:

"A. The circuit court failed to ensure that Ibarra's waiver of her right not to testify was knowing, intelligent and voluntary";
"B. The circuit court erred in denying Ibarra's post-verdict motion for judgment of acquittal"; and
"C. The circuit court erred in denying Ibarra's motion for new trial."
1. The circuit court was not required to engage Ibarra in a Tachibana colloquy prior to her testimony.

At a pre-trial hearing, the circuit court informed Ibarra of her right not to testify. Ibarra waived her right not to testify and took the stand following the State's case-in-chief. On appeal, Ibarra does not take issue with her pre-trial waiver, but rather she argues that the circuit court failed to engage her in an ultimate Tachibana 3 colloquy before she testified.

In State v. Lewis, 94 Hawai‘i 292, 12 P.3d 1233 (2000), the Hawai‘i Supreme Court held that an ultimate Tachibana colloquy is not required in cases where a defendant has indicated they intend to testify. Id. at 296, 12 P.3d at 1237. Ibarra relies on State v. Torres, 144 Hawai‘i 282, 439 P.3d 234 (2019). In Torres, the supreme court held that a Tachibana colloquy must be given in all trials, including those where the defendant elects to take the stand. Id. at 294-95, 439 P.3d at 246-47. The supreme court expressly stated, however, that the new requirement was to be given prospective application "in trials beginning after the filing date of [Torres ]." Id. at 295, 439 P.3d at 247 (emphasis added).

Ibarra's trial occurred before Torres was decided. Lewis applied when Ibarra was tried; the circuit court was not required to conduct an ultimate Tachibana colloquy before Ibarra testified.

2. The circuit court did not err in denying Ibarra's motion for judgment of acquittal.

When reviewing the grant or denial of a motion for judgment of acquittal,

we employ the same standard that a trial court applies to such a motion, namely, whether, upon the evidence viewed in the light most favorable to the prosecution and in full recognition of the province of the trier of fact, the evidence is sufficient to support a prima facie case so that a reasonable mind might fairly conclude guilt beyond a reasonable doubt. Sufficient evidence to support a prima facie case requires substantial evidence as to every material element of the offense charged. Substantial evidence as to every material element of the offense charged is credible evidence which is of sufficient quality and probative value to enable a person of reasonable caution to support a conclusion. Under such a review, we give full play to the right of the fact finder to determine credibility, weigh the evidence, and draw justifiable inferences of fact.

State v. Timoteo, 87 Hawai‘i 108, 112-13, 952 P.2d 865, 869-70 (1997) (quoting State v. Jhun, 83 Hawai‘i 472, 481, 927 P.2d 1355, 1364 (1996) ).

As set forth in HRS § 712-1203(1) (Supp. 2016), the offense of Promoting Prostitution may be committed in one of two ways: "A person commits the offense of promoting prostitution if the person knowingly advances or profits from prostitution" (emphasis added). In denying Ibarra's motion, the circuit court found that a reasonable jury could not find that Ibarra "advanced" prostitution, but a reasonable jury could find that Ibarra "profited" from prostitution.4 On appeal, Ibarra asserts that the circuit court erred in denying her motion for judgment of acquittal because the court misinterpreted "profits from prostitution" as defined in HRS § 712-1201.

The interpretation of a statute is a question of law which this court reviews de novo. Moreover, where the language of the statute is plain and unambiguous, our only duty is to give effect to its plain and obvious meaning. When construing a statute, our foremost obligation is to ascertain and give effect to the intention of the legislature, which is to be obtained primarily from the language contained in the statute itself. And we must read statutory language in the context of the entire statute and construe it in a manner consistent with its purpose.

State v. Toyomura, 80 Hawai‘i 8, 18-19, 904 P.2d 893, 903-04 (1995) (cleaned up).

HRS § 712-1201 (2014 & Supp. 2016) provides, in relevant part:

(2) A person "profits from prostitution" if, acting other than as a prostitute receiving compensation for personally-rendered prostitution services, the person accepts or receives money or other property pursuant to an agreement or understanding with any person whereby the person participates or is to participate in the proceeds of prostitution activity.

Ibarra argues that in order to constitute a "profit" CW must have paid Ibarra a sum greater than the amount that Ibarra advanced for CW's airfare and hotel costs. But the plain language of the statute does not implicate a profit in the financial accounting sense; a defendant "profits from prostitution" if they "accept[ ] or receive[ ] money" — other than for prostitution services they personally render — "pursuant to an agreement" whereby the defendant "participates ... in the proceeds of prostitution activity." HRS § 712-1201(2).

Ibarra challenges the circuit court's finding of fact no. 18:

Therefore, in this case, based on the evidence adduced at trial, a reasonable juror could have further found that the money paid to [Ibarra], in some instances, arose out of prostitution services personally rendered by [CW], but not by [Ibarra].

The finding was supported by substantial evidence; Ibarra testified that she and CW had an agreement that CW would pay money to Ibarra that CW earned by rendering services as a prostitute. The finding was not clearly erroneous.

Ibarra also challenges the following conclusions of law made by the circuit court:

5. As to profiting from prostitution, in light of the statutory definition of "profits from prostitution" quoted above, the evidence adduced at trial, and viewing that evidence in the light most favorable to the State, the court concludes that a reasonable juror could find that [Ibarra] profited from prostitution. Specifically, a reasonable juror could find that [Ibarra] and [CW] had an agreement or understanding that [CW] would pay [Ibarra] back for any airfare and/or half of the hotel room costs and that [Ibarra] knew that the money paid to [Ibarra] by [CW] arose from prostitution activities personally rendered by [CW], and not by [Ibarra].
6. Therefore, under the statutory definition quoted above, a reasonable juror could find [Ibarra] guilty of promoting prostitution as she "profited from prostitution" and therefore Defendant Paola Ibarra's Motion for Judgment of Acquittal or in the alternative, Motion for New Trial is denied.

These conclusions were not wrong; they were supported by substantial evidence and reflected an...

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