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                                                   Electronically Filed
                                                   Intermediate Court of Appeals
                                                   CAAP-XX-XXXXXXX
                                                   29-MAY-2020
                                                   08:22 AM




                             NO. CAAP-XX-XXXXXXX

                  IN THE INTERMEDIATE COURT OF APPEALS

                           OF THE STATE OF HAWAI#I


                 STATE OF HAWAI#I, Plaintiff-Appellee, v.
                  DIEGO I. AVALOS, Defendant-Appellant

          APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT
                              #EWA DIVISION
                       (CASE NO. 1DCW-XX-XXXXXXX)


                       SUMMARY DISPOSITION ORDER
          (By: Ginoza, C.J., and Leonard and Wadsworth, JJ.)

             Defendant-Appellant Diego I. Avalos (Avalos) appeals
from the Judgment and Notice of Entry of Judgment (Judgment),
filed on March 18, 2019, in the District Court of the First
Circuit, #Ewa Division (District Court).1/
          Following a bench trial, Avalos was convicted of Sexual
Assault in the Fourth Degree, in violation of Hawaii Revised
Statutes (HRS) § 707-733(1)(a) (2014).2/ On appeal, Avalos
contends there was insufficient evidence to support his

     1/
          The Honorable Sherri-Ann Iha presided.
     2/
          HRS § 707-733(1)(a) provides, in relevant part:

                   Sexual assault in the fourth degree. (1) A person
             commits the offense of sexual assault in the fourth degree
             if:
                   (a)   The person knowingly subjects another person,
                         not married to the actor, to sexual contact by
                         compulsion or causes another person, not married
                         to the actor, to have sexual contact with the
                         actor by compulsion[.]
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conviction, specifically, to prove that the alleged conduct was
committed "by complusion" and that Avalos was the person who
committed the offense.
          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 Avalos's point of error as follows:
          Sufficient evidence to support a conviction requires
substantial evidence as to every material element of the offense
charged. State v. Grace, 107 Hawai#i 133, 139, 111 P.3d 28, 34
(App. 2005) (quoting State v. Ferrer, 95 Hawai#i 409, 422, 23
P.3d 744, 757 (App. 2001)). 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. The evidence must be "viewed in the light most favorable to
the prosecution and in full recognition of the province of the
trier of fact," who must "determine credibility, weigh the
evidence, and draw justifiable inferences of fact." Id.
          As relevant here, a person commits the offense of
sexual assault in the fourth degree if the person knowingly
subjects another person, not married to the actor, to sexual
contact by compulsion. HRS § 707-733(1)(a). "'Sexual contact'
means any touching, other than acts of 'sexual penetration', of
the sexual or other intimate parts of another, . . . whether
directly or through the clothing or other material intended to
cover the sexual or other intimate parts." HRS § 707-700 (Supp.
2016). Touching the buttocks constitutes sexual contact under
HRS § 707-700. State v. Silver, 125 Hawai#i 1, 7, 249 P.3d 1141,
1147 (2011). "'Compulsion' means absence of consent, or a
threat, express or implied, that places a person in fear of
public humiliation, property damage, or financial loss." HRS
§ 707-700 (2014). "Consent signifies voluntary agreement or
concurrence." State v. Adams, 10 Haw. App. 593, 605, 880 P.2d
226, 234 (1994) (citing Webster's Third New International
Dictionary (1981) at *482). Here, a conviction for violation of
HRS § 707-733(1)(a) required proof beyond a reasonable doubt that


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the complaining witness (CW) was not married to Avalos and did
not consent to sexual contact by Avalos, and that Avalos knew he
did not have the CW's consent to engage in such contact. See id.
(statute requires proof beyond a reasonable doubt of compulsion
in the context of sexual penetration under HRS § 707-731(1)(a)).
          At trial, CS, a friend of the CW, testified to the
following: At the time of the incident on December 8, 2016, CS
had known the CW for a few months. During that time, the CW was
in a relationship with a man who was not then in the courtroom,
i.e., not Avalos. On December 8, 2016, Avalos made physical
contact with the CW at Pearlridge Shopping Center, which is in
the City and County of Honolulu. While CS, the CW, and two other
women were walking in a crosswalk in a parking lot, Avalos and
two other men walked toward them, and Avalos "just reached around
and grabbed [the CW] from the side, then took off running."
"They had came up and reached and grabbed [the CW's] behind
pretty aggressively as [Avalos] shouted some type of challenge
like, [g]rab her butt or run away, something along the line of
that." Avalos "just groped her . . . [i]t was more an aggressive
like grab . . . for at least two seconds." Avalos then "took off
in the other direction" and "[h]is friends pretended as if they
didn't even know who he was as we were trying to question."
After the incident, the CW "pulled out her phone and immediately
started following [Avalos]." She "hollered out that she was
going to call the police and that it was inappropriate[, a]nd she
asked for him to come back or hollered at him to come back." CS
followed Avalos's friends "to see if they would link up." The CW
and CS's sister "did their best to follow [Avalos,] [b]ut he was
in a sprint rather, so they lost him fairly quickly." As CS and
her friend were leaving the mall through T.J. Maxx, they "saw the
car, a black Honda, pull up with the same male driving it[,]" so
they "took a picture of his license plate[,]" "went back to [the
CW] to report that [they] had seen him[,]" and gave the police
all of that information.
          In further testimony, CS clarified the following: At
the time of the incident, Avalos was "coming towards [CS], so


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[she] could see his face[.]" During the incident, Avalos said,
"Grab her ass and run away. He spoke his action as he did it.
It was like a challenge between his friends."
          The District Court credited CS's testimony, stating:
                So based on the witness's testimony of the complaining
          witness's reaction as well as the defendant's reaction,
          defendant yelling out his -- his utterance as he ran away
          from the scene, it clearly shows that there was no consent
          in this case and there was offensive touching.
                So the Court is going to find the defendant guilty as
          charged.

          On appeal, Avalos contends "there was not substantial
evidence to find compulsion" – that "one can just as easily
speculate that the individuals may have known each other prior to
the incident and conclude consent." Avalos further contends
there was no evidence that CS was "able to correctly ascertain or
interpret the reaction of [the CW]" to the incident. Finally,
Avalos argues that based on CS's testimony, "she could not have
had a clear view of the perpetrator's face in order to identify
whether it was indeed Avalos."
          We decline, however, to pass upon issues regarding the
credibility of witnesses and the weight of the evidence, which
are within the province of the trier of fact — here, the District
Court. See State v. Stocker, 90 Hawai#i 85, 90, 976 P.2d 399,
404 (1999) (quoting State v. Lee, 90 Hawai#i 130, 134, 976 P.2d
444, 448 (App. 1999)); State v. Mattiello, 90 Hawai#i 255, 259,
978 P.2d 693, 697 (1999). Upon review of the record, we conclude
there was substantial evidence that Avalos subjected the CW, who
was not married to Avalos, to sexual contact by touching her
buttocks. We further conclude that based on the actions and
reactions of Avalos and the CW, and the inferences fairly drawn
from all of the circumstances, the District Court could
reasonably have inferred that the CW did not consent to the
sexual contact and that Avalos knew he did not have the CW's
consent to engage in the contact. See Stocker, 90 Hawai#i at 92,
976 P.2d at 406. Accordingly, on this record, the evidence was
sufficient to support Avalos's conviction for Sexual Assault in
the Fourth Degree.


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          Therefore, IT IS HEREBY ORDERED that the Judgment and
Notice of Entry of Judgment, filed on March 18, 2019, in the
District Court of the First Circuit, #Ewa Division, is affirmed.

          DATED:   Honolulu, Hawai#i, May 29, 2020.



On the briefs:
                                      /s/ Lisa M. Ginoza
Andrew I. Kim,                        Chief Judge
Deputy Public Defender,
for Defendant-Appellant.
                                      /s/ Katherine G. Leonard
Sonja P. McCullen,                    Associate Judge
Deputy Prosecuting Attorney,
City & County of Honolulu,
for Plaintiff-Appellee.               /s/ Clyde J. Wadsworth
                                      Associate Judge




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