State v. Garcia

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
28-MAY-2021
08:35 AM
Dkt. 75 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I

STATE OF HAWAI#I, Plaintiff-Appellee,
v.
REBECCA S. GARCIA, Defendant-Appellant

APPEAL FROM THE DISTRICT COURT OF THE SECOND CIRCUIT
(CASE NO. 2DCW-XX-XXXXXXX)

SUMMARY DISPOSITION ORDER
(By: Ginoza, Chief Judge, Leonard and Nakasone, JJ.)

Defendant-Appellant Rebecca S. Garcia (Garcia) appeals
from the Judgment and Notice of Entry of Judgment (Judgment),
filed on June 2, 2017,1 in the District Court of the Second
Circuit (District Court).2 After a bench trial, the District
Court convicted Garcia of Harassment in violation of Hawaii
Revised Statutes (HRS) § 711-1106(1)(a) (2014) (Harassment).3

1
An Amended Judgment and Notice of Entry of Judgment (Amended
Judgment) was filed on April 16, 2018, to correct the June 2, 2017 Judgment
that mistakenly stated that Garcia had entered a guilty plea. On May 31,
2018, we entered an order granting the Plaintiff-Appellee State of Hawai#i's
(State) request to supplement the record with the Amended Judgment that
corrected the mistake. We construe Garcia's appeal as an appeal from the
Amended Judgment.
2
The Honorable Blaine J. Kobayashi presided.
3
HRS § 711-1106(1)(a) provides, in relevant part:

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The District Court sentenced Garcia to pay a $250 fine and a $30
Criminal Injuries Compensation Fund fee.
On appeal, Garcia raises a single point of error
contending that she received ineffective assistance from her
trial counsel because trial counsel was not accompanied by a
supervising attorney at trial,4 trial counsel failed to make
"proper objections" to the State's leading questions, and trial
counsel showed "lack of interest" in the case;5 and as a result,
Garcia's "otherwise meritorious defense was substantially
impaired."6

3
(...continued)
Harassment. (1) A person commits the offense of
harassment if, with intent to harass, annoy, or alarm
any other person, that person:

(a) Strikes, shoves, kicks, or otherwise touches
another person in an offensive manner or
subjects the other person to offensive
physical contact[.]
4
No "facts material to consideration" of this particular argument
regarding the absence of a supervising attorney appears in the statement of
the case, and there are no record references supporting these factual
statements as required by Hawai#i Rules of Appellate Procedure (HRAP) Rule
28(b)(3). No argument was presented in the "Argument" section of the brief,
and thus it is waived. See HRAP Rule 28(b)(7) (requiring that the argument
containing the contentions on the points presented cite the parts of the
record relied on, and that "[p]oints not argued may be deemed waived."); see
Taniguchi v. Ass'n of Apartment Owners of King Manor, Inc., 114 Hawai#i 37,
53, 155 P.3d 1138, 1154 (2007) (waiving argument not supported by reference to
the record) (citations omitted).
5
In the point of error, Garcia complains of "one instance" of what
she characterizes as trial counsel's "lack of interest," which occurred when
the District Court asked trial counsel whether he had an objection to the
State's request for judicial notice, to which trial counsel responded, "I'm
sorry, what was the question?" In the argument section, no argument was
presented explaining how an isolated request to repeat a question constituted
ineffective assistance. This argument is waived. See HRAP Rule 28(b)(7).
6
Garcia's Opening Brief fails to comply with HRAP Rule 28(b)(4)(i)
and (ii), because her point of error does not state where in the record the
failures to object occurred, and only identifies a record reference for the
"lack of interest" claim. However, the "remaining sections of the brief
provide the necessary information to identify [Garcia's] argument." Marvin v.
Pflueger, 127 Hawai#i 490, 496, 280 P.3d 88, 94 (2012). We thus address the
merits of this argument.
(continued...)

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Upon careful review of the record and the briefs
submitted by the parties and having given due consideration to
the arguments advanced and the issues raised by the parties, we
resolve Garcia's point of error, and affirm.
The pertinent background is as follows. The State's
May 26, 2016 complaint against Garcia charged her with Harassment
against her sister-in-law Ellen Frenette Garcia (Complainant) in
violation of HRS § 711-1106(1)(a).7 A bench trial was held on
June 2, 2017, where Garcia was represented by Deputy Public
Defender, William Pannell, Esq., and co-counsel, Tyler Stevenson,
Esq. The subject incident occurred on December 27, 2015, between
11:00 a.m. and noon, during a dispute between Garcia and
Complainant over their shared use of a laundry clothesline, which
turned physical, and Complainant called the police.
Garcia and Complainant are sisters-in-law, married to
brothers Samuel Garcia, Jr. (Garcia's husband) and Jon Garcia
(Complainant's husband). They lived in adjacent homes and shared
a clothesline, alternating days of the week for their use of the
clothesline. On the day of the incident, Complainant, Garcia,
and Garcia's husband had an argument over the shared clothesline,
because Garcia's laundry was still on the clothesline when
Complainant attempted to hang her clothes.

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(...continued)
Garcia's appellate counsel also failed to serve a copy of the
brief on the attorney alleged to have been ineffective, as required by HRAP
Rule 28(a), where a claim of ineffective counsel has been raised.
7
The Complaint stated:
That on or about the 27th day of December, 2015, in
the Division of Wailuku, County of Maui, State of Hawaii,
REBECCA GARCIA, with intent to harass, annoy or alarm
another person, did strike, shove, kick, and/or otherwise
touch Ellen Frenette Garcia in an offensive manner and/or
subject Ellen Frenette Garcia to offensive physical contact,
thereby committing the offense of Harassment in violation of
Section 711-1106(1)(a) of the Hawaii Revised Statutes.

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Officer Toma Asuega-Stark (Officer Asuega-Stark)
testified that he spoke to Complainant upon arrival, and
Complainant wanted to make a complaint against Garcia.
Complainant described the argument over the clothesline, and
reported that Garcia was yelling and swearing at Complainant,
threw water on Complainant's head, and slapped Complainant,
causing pain. Complainant did not say that she was hit from
behind or blind-sided. Officer Asuega-Stark also spoke to
Garcia, who said she did throw water on Complainant. Garcia did
not tell the officer she had to push Complainant away, or that
Complainant tried to attack Garcia.
Complainant testified that she did a load of laundry on
that day, and it was her family's turn to use the clothesline.
She and her husband then went to the beach. When she returned to
hang up the laundry, she saw Garcia's clothes on the clothesline.
She yelled for Garcia's husband to come out and he did so, and he
began taking down the clothes. Complainant felt water poured on
top of her head and something hit her left ear. She turned to
see Garcia near her. Garcia shoved Complainant by pushing
Complainant with both hands. Complainant felt shocked when the
water was poured on her and afraid when she was hit. There were
cuts on her ear, and it was bleeding and felt sore. Complainant
then returned to her house to call the police.
Complainant's husband testified that he heard shouting
as he walked back to his house from the beach, and saw Garcia
yelling and swearing at Complainant. Complainant's hair, face,
and upper clothing were wet. Her ear was red and had scratches
on it.
Garcia's husband testified that on that day, he and
Garcia used the "additional four lines on the existing
clothesline" that belonged to them, but some clothes were hung on
the "common clothesline" they shared, after he saw his brother's
family go to the beach. Later, while he was reading, he heard

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Complainant telling him in a raised voice to get his clothes off
the clothesline. Complainant was very agitated. Garcia ran over
to them with a bottle of water in her hand and threw the water,
telling Complainant to shut up and to get away from Garcia's
husband. Complainant "charged" Garcia, who tried to "ward her
off with water." Garcia had to push Complainant back.
Complainant then muttered, "you, you," while smiling and shaking
her finger at them, and Complainant went into her house. He did
not see Garcia hit Complainant, and did not see any blood or
injury on Complainant.
Garcia testified that she was in the garden when she
heard Complainant's raised, angry voice. She ran over and saw
Complainant and Garcia's husband at the clothesline. Complainant
was yelling at Garcia's husband as he removed the clothes.
Garcia told Complainant to leave him alone, and Garcia shook
water to try to get Complainant away from Garcia's husband and
stop the fight. Garcia denied swearing at Complainant.
Complainant was angry, growling, and came towards Garcia, who had
to step back and push Complainant away from her. Garcia
testified that she told the officer that Complainant growled at
her and rushed her, and that Garcia pushed Complainant away from
her.
The defense argued in closing that if Garcia pushed
Complainant, Garcia did so in self-defense and should be found
not guilty of Harassment. The State argued that it had proved
the offensive physical contact required for Harassment beyond a
reasonable doubt.
The District Court found the State's witnesses –-
Officer Asuega-Stark, Complainant's husband, and Complainant --
more credible than the defense witnesses, and rejected Garcia's
self-defense. The District Court found that Garcia struck
Complainant and pushed her, and adjudged Garcia guilty of

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Harassment. Garcia was sentenced to pay a fine and a fee.
Garcia timely appealed.
Claim of Failure to Object to State's Leading Questions
Garcia contends that her trial counsel was ineffective
because the prosecutor "asked, almost exclusively, leading
questions through out [sic] the trial, to which no objections
were raised." Garcia identifies and quotes three areas in the
trial record where the excessive leading questions occurred.
Garcia argues that trial counsel's failure to object to the
quoted portions of the transcript allowed the State to establish
its case through improper leading questions, and "'steamroll' its
way to a conviction." Garcia also claims that, "It is unknown if
the State would have been able to establish these elements
through proper questioning." Garcia's contention that she
received ineffective assistance of counsel is without merit.
While leading questions are generally not permitted on
direct examination, some leading of a witness is allowed.
Hawai#i Rules of Evidence (HRE) Rule 611(c) provides: "Leading
questions should not be used on the direct examination of a
witness except as may be necessary to develop the witness'
testimony." Garcia's identified passages are selective excerpts
from the direct examination testimonies of Officer Asuega-Stark
and Complainant. Our review of the trial transcript reflects
that the direct examinations of these two witnesses started out
with a series of open-ended questions, and that the majority of
both direct examinations consisted of open-ended questions.
Viewing the direct examinations in their entirety, the portions
of the questioning identified by Garcia show that the State
employed some leading questions on direct to develop pertinent
details at critical junctures in the testimonies of Officer
Asuega-Stark and Complainant. This was permissible under HRE
Rule 611(c).

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The defendant has the burden of establishing a claim of
ineffective assistance of counsel and must meet the following
two-part test: (1) that there were specific errors or omissions
reflecting counsel's lack of skill, judgment, or diligence; and
(2) that such errors or omissions resulted in either the
withdrawal or substantial impairment of a potentially meritorious
defense. State v. DeLeon, 131 Hawai#i 463, 478-79, 319 P.3d 382,
397-98 (2014) (citing State v. Wakisaka, 102 Hawai#i 504, 513–14,
78 P.3d 317, 326–27 (2003) (internal quotation marks, citations,
and footnote omitted)). To satisfy the second prong, the
defendant needs to show a possible impairment, rather than a
probable impairment, of a potentially meritorious defense.
Wakisaka, 102 Hawai#i at 514, 78 P.3d at 327 (citation omitted).
We note that this was a bench trial, with the District
Court judge as the factfinder. "[W]here a case is tried without
a jury, it is presumed that the presiding judge will have
disregarded the incompetent evidence and relied upon that which
was competent." State v. Antone, 62 Haw. 346, 355, 615 P.2d 101,
108 (1980) (citations omitted). The District Court judge is
presumed to have appropriately considered and weighed the
evidence as the factfinder. See id. In this case, Garcia also
asserted self-defense at trial, which turned on the credibility
of witnesses. "[I]t is well-settled that an appellate court will
not pass upon issues dependent upon the credibility of witnesses
and the weight of the evidence; this is the province of the trier
of fact." State v. Mattiello, 90 Hawai#i 255, 259, 978 P.2d 693,
697 (1999) (internal brackets and citation omitted). The
District Court determined that the State's witnesses were more
credible than the defense. Garcia has failed to establish that
there were specific errors or omissions by trial counsel that
resulted in any impairment of her credibility-based defense in
this bench trial. See DeLeon, 131 Hawai#i at 478-79, 319 P.3d at

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397-98. Thus, Garcia's claim of ineffective assistance of trial
counsel is without merit.
Claim of Failure to Question the Impartiality of the
Trial Judge

Garcia's argument that her trial counsel was
ineffective for failing to question the trial judge's
impartiality due to the trial judge's alleged relationships with
the Complainant and others on Maui was not raised in her point of
error in violation of HRAP Rule 28(b)(4). None of the alleged
"facts material to consideration" of this argument regarding the
trial judge's alleged impartiality appears in the statement of
the case, and there are no record references supporting these
factual statements as required by HRAP Rule 28(b)(3). This
"impartiality" argument apparently was not raised below, and
appears for the first time in the argument section of the Opening
Brief, and the argument does not cite "parts of the record relied
on" for any of the alleged conflicts and relationships Garcia
claims regarding the District Court judge. This argument
violates HRAP Rule 28(b)(7), and is waived. See Taniguchi, 114
Hawai#i at 53, 155 P.3d at 1154.
Therefore, IT IS HEREBY ORDERED that the Amended
Judgment and Notice of Entry of Judgment, filed on April 16,
2018, in the District Court of the Second Circuit, is affirmed.
DATED: Honolulu, Hawai#i, May 28, 2021.

On the briefs:
/s/ Lisa M. Ginoza
Joshua C. James Chief Judge
(Cain & Herren)
for Defendant-Appellant /s/ Katherine G. Leonard
Associate Judge
Renee Ishikawa Delizo
Deputy Prosecuting Attorney /s/ Karen T. Nakasone
County of Maui Associate Judge
for Plaintiff-Appellee

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