State v. Ibarra
Decision Date | 27 May 2022 |
Docket Number | CAAP-19-0000697 |
Citation | 151 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 |
Court | Hawaii 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.
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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:
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.
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:
These conclusions were not wrong; they were supported by substantial evidence and reflected an...
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