State v. Filipe

NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
14-FEB-2024
08:13 AM
Dkt. 81 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI‘I

STATE OF HAWAI‘I, Plaintiff-Appellee,
v.
MYRON POSOA FILIPE, Defendant-Appellant

APPEAL FROM THE FAMILY COURT OF THE FIRST CIRCUIT
(CASE NO. 1FFC-XX-XXXXXXX)

SUMMARY DISPOSITION ORDER
(By Hiraoka, Presiding Judge, Wadsworth and Guidry, JJ.)

Defendant-Appellant Myron Posoa Filipe (Filipe)

appeals from the Judgment of Conviction and Sentence (Judgment)

entered by the Family Court of the First Circuit (family court)

on November 15, 2022.1 On December 4, 2020, Filipe was indicted

on one count of Sexual Assault in the First Degree2 in violation

1 The Honorable Kevin T. Morikone presided.

2 The indictment stated, in relevant part,

On or about June 1, 2016, to and including June 30, 2016,
in the City and County of Honolulu, State of Hawaiʻi, MYRON
POSOA FILIPE, being the parent or guardian or any other

(continued...)
NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER

of Hawaii Revised Statutes (HRS) § 707-730(1)(b) (2014).3 Filipe

pleaded not guilty, and the matter proceeded to a jury-waived

trial. On June 30, 2022, the family court found Filipe guilty

as charged. Filipe was sentenced to a term of twenty years

imprisonment.

Filipe raises five points of error on appeal,

contending that the family court erred: (1) "where it denied

[Filipe's] motion to allow evidence of sexual activity of the

[CW] and where it denied [Filipe's] motion to suppress

evidence"; (2) "when it relied on the DVD police interview

footage to determine whether [Filipe] invoked his right to

counsel rather than relying on the official transcripts of said

interview"; (3) "where it stated it would discern admissibility

and inadmissibility within the transcripts/dvd of the interview

of [Filipe] at police headquarters rather than specifically

detailing which statements it was relying on and which were not

relied upon due to inadmissibility"; (4) "where it overruled

(...continued)
person having legal or physical custody of [complaining
witness (CW)], did knowingly engage in sexual penetration
with [CW], who was less than fourteen years old, by
inserting his finger into her genital opening, thereby
committing the offense of Sexual Assault in the First
Degree, in violation of Section 707-730(1)(b) of the Hawaiʻi
Revised Statutes.

3 HRS § 707-730(1)(b) provides, in pertinent part, "A person
commits the offense of sexual assault in the first degree if:

. . . .

(b) The person knowingly engages in sexual penetration with
another person who is less than fourteen years old[.]"
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[Filipe's] objection to [the State] attempting to rehab bad

answers by the [CW] even though the [CW] had already answered

the very same questions asked of her (asked and answered)"; and

(5) "by denying [Filipe's] various motions for judgment of

acquittal, and by sustaining [Filipe's] conviction despite

insufficient evidence supporting the requisite state of mind."

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

conclude that Filipe's conviction is not supported by sufficient

evidence.4 We therefore reverse the family court's Judgment as

follows.

We review Filipe's contention of insufficient evidence

under the following standard of review:

[E]vidence adduced in the trial court must be considered in the
strongest light for the prosecution when the appellate court
passes on the legal sufficiency of such evidence to support a
conviction; the same standard applies whether the case was before
a judge or jury. The test on appeal is not whether guilt is
established beyond a reasonable doubt, but whether there was
substantial evidence to support the conclusion of the trier of
fact.

State v. Kalaola, 124 Hawaiʻi 43, 49, 237 P.3d 1109, 1115 (2010)

(citations omitted).

"Substantial evidence" is "credible evidence which is

of sufficient quality and probative value to enable a person of

reasonable caution to support a conclusion." Id. (citation

4 In light of this conclusion, we do not reach Filipe's remaining
points of error.
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omitted). In a bench trial, the trial judge, as the trier of

fact, "is free to make all reasonable and rational inferences

under the facts in evidence, including circumstantial evidence."

State v. Batson, 73 Haw. 236, 249, 831 P.2d 924, 931 (1992)

(citation omitted).

In order to sustain a conviction of Sexual Assault in

the First Degree, the State is required to prove that the

defendant had the requisite state of mind; the defendant must

have "knowingly engage[d] in sexual penetration with another

person who is less than fourteen years old[.]" HRS § 707-

730(1)(b) (emphasis added). HRS § 702-206(2) (2014) defines the

"knowingly" state of mind as,

(a) A person acts knowingly with respect to his conduct
when he is aware that his conduct is of that nature.
(b) A person acts knowingly with respect to attendant
circumstances when he is aware that such
circumstances exist.
(c) A person acts knowingly with respect to a result of
his conduct when he is aware that it is practically
certain that his conduct will cause such a result.

Id.

On this record, we conclude that there is insufficient

evidence to support that Filipe "knowingly" engaged in sexual

penetration with "another person who is less than fourteen years

old[.]"

At trial, Filipe asserted a mistake-of-fact defense.

He argued that he was acting under the mistaken belief that he

was touching his girlfriend, CW's mother (mother), in the bed,

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and not CW who was less than fourteen years old.5 The two police

detectives who interviewed Filipe during their investigation

testified at trial that Filipe did not admit to knowingly

engaging in sexual penetration with CW. Rather, Filipe

represented that he thought he was engaging in this act with

CW's mother.6

CW's testimony supports that Filipe penetrated CW's

vagina with his fingers, but does not establish that Filipe did

so knowing that he was engaging in sexual penetration with CW –

i.e., a person who is less than fourteen years old. CW

testified at trial that she was sleeping on the same bed as

Filipe and mother when the incident occurred. CW testified that

she was lying between her mother and Filipe, but that she had

not slept in the middle before. CW's testimony does not

establish whether Filipe knew that he was sleeping next to CW,

and not mother, at the time of the incident. CW testified that

she saw Filipe's face when the sexual penetration occurred, but

that alone does not establish that Filipe knew he was engaging

in sexual penetration with CW and not mother. CW further

5 The record reflects that CW was twelve years old at the time the
incident occurred.

6 When questioned during cross-examination, Detective Linda
Robertson (Detective Robertson) agreed that Filipe told her, during her
investigation, that he did not know he was sexually touching CW until after
he touched her and "she moved, [and] I looked over[.]" Detective Robertson
further agreed that Filipe told her, "I didn't do it intentionally like I
wanted to rape her or anything. I just reached over and touched her, because
I thought she was my girlfriend. And I stopped. But I knew it was her, so I
stopped."

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testified that she and Filipe did not talk with each other about

the incident after it occurred.7

We conclude, on this record, that the evidence adduced

by the State at trial does not support that Filipe had the

requisite state of mind to be convicted of Sexual Assault in the

First Degree. We therefore reverse the Judgment of Conviction

and Sentence entered on November 15, 2022, by the Family Court

of the First Circuit.

DATED: Honolulu, Hawai‘i, February 14, 2024.

On the briefs:
/s/ Keith K. Hiraoka
Kai Lawrence, Presiding Judge
for Defendant-Appellant.
/s/ Clyde J. Wadsworth
Steven K. Tsushima, Associate Judge
Deputy Prosecuting Attorney,
City and County of Honolulu /s/ Kimberly T. Guidry
for Plaintiff-Appellee. Associate Judge

7 Mother testified as a defense witness. Her testimony likewise
does not establish that Filipe knew he was touching CW and not mother.
Mother's testimony confirmed that CW was positioned next to Filipe on the
night the incident occurred, but that mother usually slept between CW and
Filipe. Mother testified that she and Filipe would engage in sexual touching
of each other in bed.
6