State v. Ibarra

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
27-MAY-2022
07:52 AM
Dkt. 86 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

STATE OF HAWAI#I, Plaintiff-Appellee,
v.
PAOLA IBARRA, Defendant-Appellant,
and
GUSTAVO FERREIRA, Co-Defendant

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

SUMMARY DISPOSITION ORDER
(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

1
The Honorable Shirley M. Kawamura presided.
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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 (co-
defendant 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."

2
HRS § 712-1203.

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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 Tachibana3 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

3
Tachibana v. State, 79 Hawai#i 226, 900 P.2d 1293 (1995).

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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 support a prima
facie case requires substantial evidence as to every
material element of the offense charged. Substantial
evidence as to every material element of the offense charged
is credible evidence which is of sufficient quality and
probative value to enable a person of reasonable caution to
support a conclusion. Under such a review, we give full
play to the right of the fact finder to determine
credibility, weigh the evidence, and draw justifiable
inferences of fact.

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

4
The State's answering brief asserts that there was "sufficient
evidence" that Ibarra also "advanced" prostitution. However, the State did
not cross-appeal from the circuit court's order. Accordingly, we cannot
address the State's argument. See HRS § 641-13(5) (2016) (providing that an
appeal may be taken by the State "[f]rom a ruling on a question of law adverse
to the State, where the defendant was convicted and appeals from the
judgment[.]"); Doe v. Doe, 99 Hawai#i 1, 12-13, 52 P.3d 255, 266-67 (2002)
("It is well-settled that 'an appellee is ordinarily not entitled to attack a
judgment without a cross appeal.'") (quoting Arthur v. Sorensen, 80 Hawai#i
159, 167, 907 P.2d 745, 753 (1995)).

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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:

5. As to profiting from prostitution, in light of
the statutory definition of "profits from prostitution"

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quoted above, the evidence adduced at trial, and viewing
that evidence in the light most favorable to the State, the
court concludes that a reasonable juror could find that
[Ibarra] profited from prostitution. Specifically, a
reasonable juror could find that [Ibarra] and [CW] had an
agreement or understanding that [CW] would pay [Ibarra] back
for any airfare and/or half of the hotel room costs and that
[Ibarra] knew that the money paid to [Ibarra] by [CW] arose
from prostitution activities personally rendered by [CW],
and not by [Ibarra].
6. Therefore, under the statutory definition quoted
above, a reasonable juror could find [Ibarra] guilty of
promoting prostitution as she "profited from prostitution"
and therefore Defendant Paola Ibarra's Motion for Judgment
of Acquittal or in the alternative, Motion for New Trial is
denied.

These conclusions were not wrong; they were supported by
substantial evidence and reflected an application of the correct
rule of law. Est. of Klink ex rel. Klink v. State, 113 Hawai#i
332, 351, 152 P.3d 504, 523 (2007).

3. The circuit court did not abuse its
discretion in denying Ibarra's motion
for a new trial.

On appeal, Ibarra asserts in a conclusory manner that
the circuit court abused its discretion in denying her motion for
a new trial because: (1) "[CW] had lied under oath on numerous
occasions"; and (2) "the jury appeared to have reached a
'compromise verdict' to punish Ibarra for her admissions that she
was engaging in prostitution and that she had lied to Ferreira to
conceal her prostitution activities." The granting or denial of
a motion for new trial is within the sound discretion of the
trial court and will not be disturbed absent a clear abuse of
discretion. State v. Hicks, 113 Hawai#i 60, 69, 148 P.3d 493,
502 (2006).
Ibarra's first contention lacks merit. It is well
settled that credibility determinations are the province of the
jury. Fisher v. Fisher, 111 Hawai#i 41, 46, 137 P.3d 355, 360
(2006) ("It is well-settled that an appellate court will not pass
upon issues dependent upon the credibility of witnesses and the

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weight of evidence; this is the province of the trier of fact.")
(citation omitted).
For her second contention, the only evidence Ibarra
cites is a portion of her testimony elicited during cross-
examination in which she admits that she participated in
prostitution and lied to her boyfriend about it.5 Ibarra did not
object below and similar testimony was elicited on direct
examination. The circuit court instructed the jury that if they
found Ibarra not guilty of Sex Trafficking, or could not reach a
unanimous verdict, then they must consider the included offense
of Promoting Prostitution. "A jury is presumed to follow the
court's instructions." State v. Webster, 94 Hawai#i 241, 248, 11
P.3d 466, 473 (2000) (citations omitted). As discussed above,
substantial evidence was adduced at trial to support the jury's
finding that Ibarra was guilty of Promoting Prostitution. Thus,
the circuit court did not abuse its discretion by denying
Ibarra's motion for a new trial.
For the foregoing reasons, the Judgment entered by the
circuit court on September 11, 2019, is affirmed.
DATED: Honolulu, Hawai#i, May 27, 2022.

On the briefs:
/s/ Katherine G. Leonard
Myron H. Takemoto, Presiding Judge
for Defendant-Appellant.
/s/ Keith K. Hiraoka
Brian R. Vincent, Associate Judge
Deputy Prosecuting Attorney,
City and County of Honolulu, /s/ Clyde J. Wadsworth
for Plaintiff-Appellee. Associate Judge

5
Ibarra cites cases addressing prosecutorial misconduct but she did
not assert prosecutorial misconduct as a point of error, nor does she make any
such arguments on appeal. See Rule 28(b)(4) of the Hawai#i Rules of Appellate
Procedure ("Points not presented in accordance with this section will be
disregarded, except that the appellate court, at its option, may notice a
plain error not presented.").

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