State v. Ibarra, CAAP-19-0000697

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

151 Hawai‘i 168
509 P.3d 1131 (Table)

STATE of Hawai‘i, Plaintiff-Appellee,
Paola IBARRA, Defendant-Appellant,
Gustavo Ferreira, Co-Defendant

NO. CAAP-19-0000697

Intermediate Court of Appeals of Hawai‘i.

May 27, 2022

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.)


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

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