State v. Smith

• Decision Date: 28 December 2004
• Docket Number: No. 25544.,25544.
• Citation: 106 Haw. 365,105 P.3d 242
• Parties: STATE of Hawai'i, Plaintiff-Appellee, v. Scott Brian SMITH, Defendant-Appellant.
• Court: Hawaii Court of Appeals

105 P.3d 242

106 Haw. 365

STATE of Hawai'i, Plaintiff-Appellee, v. Scott Brian SMITH, Defendant-Appellant.

No. 25544.

Intermediate Court of Appeals of Hawai'i.

December 28, 2004.

Certiorari Denied February 4, 2005.

Artemio C. Baxa, Deputy Prosecuting Attorney, County of Maui, on the briefs, for Plaintiff-Appellee.

Shawn A. Luiz, Esq., on the briefs, for Defendant-Appellant.

BURNS, C.J., WATANABE and NAKAMURA, JJ.

Opinion of the Court by NAKAMURA, J.

Defendant-Appellant Scott Brian Smith (Smith) appeals from the Judgment entered on November 20, 2002, by the Circuit Court of the Second Circuit (the circuit court).¹ Smith was convicted of assaulting, threatening, kidnapping, and repeatedly raping the complaining witness (the CW), who was his former girlfriend and the mother of his young son. Smith was found guilty after a jury trial of the following offenses, all of which occurred on June 26, 1999:

Count 1: Assault in the first degree, in violation of Hawaii Revised Statutes (HRS) § 707-710 (1993), as a lesser included offense of the charge of Attempted Murder in the second degree.

Count 2: Terroristic Threatening in the first degree with the use of a dangerous instrument, namely a utility knife, in violation of HRS § 706-716(1)(d) (1993).

Count 3: Sexual Assault in the first degree based on Smith's subjecting the CW to an act of sexual penetration by strong compulsion by placing his fingers into her vagina, in violation of HRS § 707-730(1)(a) (1993).

Count 4: Sexual Assault in the first degree based on Smith's subjecting the CW to an act of sexual penetration by strong compulsion by placing his penis into her vagina.

Count 5: Sexual Assault in the first degree based on Smith's subjecting the CW to an act of sexual penetration by strong compulsion by placing his fingers into her vagina.

Count 6: Sexual Assault in the first degree based on Smith's subjecting the CW to an act of sexual penetration by strong compulsion by placing his penis into her vagina.

Count 8: Kidnapping with the intent to inflict bodily injury on the CW and/or to subject her to a sexual offense, in violation of HRS § 707-720(1)(d) (1993).

Count 9: The use or threatened use of a deadly or dangerous weapon, namely a utility knife, while engaged in the commission of a crime, in violation of HRS § 134-51(b) (1993).

The circuit court sentenced Smith to a total of forty-five years of imprisonment, imposing the following terms of imprisonment consecutive to each other: 1) concurrent twenty-year terms of imprisonment on Counts 3, 4, 5, and 6; 2) a ten-year term of imprisonment on Count 1; 3) a ten-year term of imprisonment on Count 8; and 4) concurrent five-year terms of imprisonment on Counts 2 and 9.

On appeal, Smith contends that 1) the State of Hawaii (the State) failed to produce sufficient evidence to support his sexual assault convictions; 2) the State elicited testimony that constituted an impermissible comment on his exercise of his right to remain silent; 3) the circuit court committed plain error in permitting the State to bolster the CW's testimony through questioning her about wearing a religious article; 4) the circuit court committed plain error in allowing Smith's trial counsel to waive Smith's presence during the settling of jury instructions; 5) Smith's trial counsel failed to provide Smith with effective assistance; and 6) the circuit court abused its discretion in imposing Smith's sentence. We affirm.

BACKGROUND

A. The State's Trial Evidence

The CW was the State's main witness at trial. She testified about her relationship with Smith and the events that led to his criminal charges.

1. The CW's Relationship With Smith

Smith and the CW met on Maui in April of 1995 and began living together. Their relationship produced a son who was born in October of 1996. In February of 1999, the CW broke up with Smith and considered their relationship to be over. Smith moved to Oahu and got a job. The CW stayed on Maui with her son and continued to work for a helicopter tour business. She took on a roommate to help defray the cost of her rent.

In June of 1999, Smith quit his job on Oahu and planned to move to Arizona. The CW had also decided to leave Maui and find a job in Las Vegas. Smith asked the CW if he could stay at her house and spend a few weeks with their son before leaving for the mainland. The CW consented because she thought it would be good for her son and Smith to spend time together. After breaking up with Smith, the CW had become romantically involved with M.B., a co-worker who was separated from his wife. The CW, however, had stopped seeing M.B. by the time Smith asked to stay with her.

Before Smith joined the CW on Maui, they talked about possibly reconciling. The CW considered resuming her relationship with Smith for the sake of their son but did not commit to reconciling. Instead, she told Smith that they should wait to see how things developed after they each relocated to the mainland. Nevertheless, Smith and the CW were sexually intimate while he stayed with her.

2. The Physical Assaults

On June 25, 1999, the CW attended an evening party hosted by her employer. Smith remained at home to watch their son, who was then about two-and-one-half years old. The CW's roommate was away for the weekend.

M.B. was at the party, and the CW was happy to see him. At one point, the CW and M.B. left the party for about forty-five minutes and engaged in sexual intercourse in M.B.'s truck. The CW was not using birth control pills. She asked M.B. not to ejaculate inside of her and he complied. The CW did not experience any pain during her sexual encounter with M.B. The CW returned to the party with M.B. and helped other employees clean up before leaving around midnight.

The CW arrived home sometime after midnight and was greeted by her son. This concerned the CW since her son's normal bedtime was 9:00 p.m. The CW and her son went to the living room and sat on the couch. Smith stood in front of the CW and asked her about their situation and whether they were going to get back together. The CW told Smith that she still planned to go to Las Vegas and that she and Smith could talk after he got settled in Arizona.

Without warning, Smith began punching the CW. He accused the CW of being selfish and hurting him. To get away from Smith's assault, the CW ran toward her roommate's room, planning to lock the door and use her roommate's telephone. Smith tackled her from behind in the hallway. The CW felt herself being hit repeatedly by Smith's fists in her face and body as she lay on the floor and tried to shield herself from his blows. The beating in the hallway lasted five to ten minutes.

Smith grabbed the CW by the hair and dragged her down the hallway into their son's bedroom. Smith continued to punch the CW in the face while their son stood, crying, behind Smith. Smith stopped his assault and told the CW that she had been cut. Smith said, "Look what you made me do. You made me cut you." The CW saw that her right leg, right arm, and thumb had been slashed. Although the CW was not sure how Smith had cut her, she saw Smith with a utility knife later that evening. Smith gave the CW a towel to soak up the blood but continued to berate her. Smith told the CW that she had hurt him internally and that he was going to hurt her physically because that was the only kind of hurt she understood.

For the next several hours, Smith kept the CW confined in her son's room. Smith threatened to cut the CW "from ear to ear" if she tried to leave. He said he was going to kill her because she had hurt him. On one occasion, the CW tried to escape. She lunged at Smith and tried to scratch his eyes. Smith, however, was too strong and forced the CW back to the floor. He then repeatedly kicked her in the face, using roundhouse kicks from the side, while their son watched.

Smith left the room and got a large bottle of tequila. He drank from the bottle throughout the night until it was empty. At one point, Smith grabbed the CW's head and forced about a cup of tequila down her throat. The CW tried to reason with Smith, telling Smith that he was scaring their son. The son, who refused to go to the CW because her face was so bloody, eventually fell asleep, and Smith put him to bed in the room.

Throughout the night, Smith directed a constant stream of verbal abuse at the CW. He screamed that she was worthless and that their son did not need a mother. The CW's eyes were nearly swollen shut from the beatings. Smith would sit in front of the CW and demand, "Are you listening, [CW]?" He would then smack her in the head and tell her to open her eyes and look at him. The CW remained trapped in her son's room the entire night.

3. The Sexual Assaults

The CW testified that after the sun came up, Smith asked her if she wanted to have sex. The CW told Smith, "No, I don't want to have sex." Smith reached for the CW's pantie and tried to pull it off. When the CW begged him to stop, Smith cut off the pantie with the utility knife. Smith threatened to put the knife inside the CW and "cut [her] pussy out." Smith placed his fingers in the CW's vagina to get himself aroused. He then told the CW to turn over because she was "too fat and ugly to look at." He inserted his penis into her vagina and sexually assaulted her. Smith left the room. When he returned, Smith told the CW that he was going to have sex with her. The CW told Smith that he just had sex with her. Smith replied, "I did? . . . [N]ow I'm going to have to kill you because that's rape and I can't go to jail." Smith dipped his fingers in the tequila and then inserted them into the CW's vagina. He next got on top of the CW and put his penis in her vagina. Smith continued to sexually assault the CW despite her pleas to "please stop, please stop, you're hurting me."

The CW testified that Smith ejaculated inside of her on both occasions. Later that morning, the CW was huddled in a corner of the room with a...