State v. Delos Santos

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lN THE SUPREME COURT OF THE STATE OF HAWAIT

--- o0o ---

STATE OF HAWAYI, Petitioner-Plaintiff-Appellee,
vs.
Respondent-Defendant-Appellant.

KENNETH DELOS SANTOS,

NO. 29337

§

CERTIORARI TO THE lNTERMEDIATE COURT OF APPEH§§ ;:,
(FC-CR NO. 08-1-l3l0) §§

AUGUST 19, 2010 w

§

MooN, C.J., NAKAYAMA, DUFFY AND RECKTENWALD, m
AND ACOBA, J., CONCURRING SEPARATELY il

g QH

OPlNION OF THE COURT BY NAKAYAMA, J.
On April l, 20l0, this court accepted a timely
application for a writ of certiorari filed by petitioner-
(“the prosecution”), on

plaintiff-appellee, the State of HawaiH

20l0, requesting that this court review the

2009 judgment

February l8,
November 24,

lntermediate Court of Appeals’

(\\'ICAII)
on appeal, entered pursuant to its November 9, 2009 Memorandum

Opinion reversing the Family Court of the First Circuit's

(“family court”) August 6, 2008, Judgment of Conviction and
Oral argument was held on June 3, 20l0.

Sentence.1
In its application for writ of certiorari before this

l The Honorable Rhonda A. Nishimura presided.

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court,2 the prosecution presents the following question:

Did the ICA gravely err in holding the family court
was wrong by admitting into evidence a police officer's
testimony regarding the complainant's hearsay statement as
an excited utterance?

For the following reasons, we hold that the lCA gravely
erred by determining that the complainant's statement that “my
boyfriend beat me up” was not admissible as an excited utterance.
we also hold that the admission of this statement does not
violate the confrontation clause of article I, section 14 of the
Hawaid_Constitution. Therefore, we vacate the ICA’s judgment on
appeal and remand to the family court for a new trial.

I. EHM3KEHRQLH§D

Kenneth Delos Santos (“Delos Santos”) was convicted of
Abuse of Family or Household Members, in violation of HawaiU_
Revised Statutes (HRS) § 709-906 (Supp. 2O08).3 The prosecution
claimed that on March 26, 2008, Delos Santos struck his

girlfriend (“the Complainant”) in the face and stomped on her

thigh in their apartment in Waikiki. The crucial piece of
2 Delos Santos did not file a memorandum in opposition to

certiorari.
3 HRS § 709-906 provides in relevant part:

(l) lt shall be unlawful for any person, singly or in
concert, to physically abuse a family or household member .

For the purposes of this section, “family or household
member” means . . . persons jointly residing or formerly
residing in the same dwelling unit.

2

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evidence supporting Delos Santos' conviction was Officer Jason
Kubo's (“Officer Kubo”) testimony summarizing the Complainant’s
statements when he arrived at the scene shortly after the
incident. The family court admitted these statements as excited
utterances. The relevant testimony is described below.

A. August 5, 2008, Hearing

The family court held a Hawafi Rules of Evidence (HRE)
Rule l04 hearing in part to determine the admissibility of the
Complainant’s statements to the police. At the hearing, two
witnesses testified.
The Complainant testified that Delos Santos was her

boyfriend and that they were living together in a hotel in

Waikiki at the time of the incident. She recalled that she and

*Delos Santos were involved in an incident on March 26, 2008. She

did not remember calling the police, making a written statement
to the police, or “anything that happened that night[.]”

The prosecution then called Jason Kubo, an officer of
the Honolulu Police Department. He testified that he responded
to an “argument type call” at approximately l:07 in the morning.
When he arrived, he “met with [s]ecurity down stairs.” He then
went up to the room. When he arrived at the room with security,
he knocked on the door, entered the room, and observed the
Complainant and Delos Santos. Officer Kubo described the
Complainant’s emotional state as “clearly in a state of fear and
crying.” Officer Kubo “immediately” spoke with her, and she
“basically said that her boyfriend beat her up.” ‘The deputy

prosecuting attorney also elicited the following testimony from

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Officer Kubo:

Q. ls that specifically what she said?

A. Yes -- well, after speaking with her and getting
the full facts and circumstances, basically she said she was
arguing with Mr. Delos Santos about some other matters and
while in the room he struck her once in her face hitting her
in her jaw with enough force to cause her to fall.

While on the ground, the victim actually said
that while lying on the ground he was -- he had stomped on
her right thigh several times causing pain.

Officer Kubo testified that her emotional state did not
change at any point during this interaction, and that she
“continued crying and at all times {he] kept trying to calm her
down.” Officer Kubo also obtained a signed written statement
from the Complainant.“ He testified that he “had to keep calming”
the Complainant down.

On cross-examination, Officer Kubo testified that the
incident occurred at l:O0 a.m. and that he arrived at the hotel
at around l:l0 in the morning. During his interview with the
Complainant, he asked a series of questions listed on the written
statement, including the question “what happened.” He also
testified that “being a police officer,” he wanted the
Complainant to answer the questions on the written statement.

At the close of the hearing, the trial court determined
preliminarily that the prosecution laid the proper foundation to

admit the statements under the excited utterance exception to

hearsay. The court stated that:

What we have down is the Complaining Witness' demeanor

4 The written statement was not entered into evidence at trial and
neither party has cited to the written statement in the application to this
court or in their briefs to the ICA. Officer Kubo testified that the written
statement was consistent with what the Complainant told him.

4

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during her utterances. It was not the situation where this
is a lengthy narrative or lengthy recitation, that he did
observe her demeanor, that she was continuously crying, that
he attempted to calm her down.

B. August 6, 2008, Trial

At trial, the prosecution called the Complainant and
Officer Kubo as witnesses. The Complainant testified that Delos
Santos was her boyfriend at the time of trial and the incident.
They lived together at the time of the incident at a hotel in
Waikiki. She testified that she did not remember anything that
happened on the night of the incident. She testified that she 0

woke up the next afternoon in Delos Santos' car feeling pain from

2 a hangover and that her legs were sore from rollerblading.

On cross-examination, she testified that she did not
remember anything because she drinks a lot, and was drinking on
the night of the incident. She did not remember how much she
drank that night, but remembered drinking at a hotel and then a
bar.

Officer Kubo also testified at the trial. His
testimony was similar to the Rule 104 hearing, with some
differences. He testified that he received a call from dispatch
at “[a]pproximately l -- about l:O5” and that it took him a “few
minutes” to get to the hotel. He testified that he arrived at
the hotel “shortly after about l:O5.” He met with security

downstairs and took the elevator to the room with security and

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other officers.5 When arriving at the room, he met with the
Compfainant, Delos Santos, and another waiting security officer.
When he arrived, Delos Santos was in the threshold of the door to
the hotel room. He testified that he went in the room to
investigate a crime. After entering the room, Officer Kubo
noticed that the Complainant was “really shaken, crying and
appeared to be in a lot of pain.” He also observed her limping.
Officer Kubo testified that before the Complainant said anything,
he “asked her what happened when [he] went in there ”
Officer Kubo testified that he asked her “what happened” because
of “the apparent pain that she was in and also for officer safety
reasons . . . 1V At the time he asked, the Complainant was

“crying” and “shaken[.]” Over objection, Officer Kubo testified

that she responded that “my boyfriend beat me up.” He then

`“walked with her further into the room, [and] knowing that she

was in pain also, {he] wanted to sit her down.” He walked her to
a table “inside the room” and “sat her down.” He then asked
“what do you mean[.]” The deputy prosecuting attorney elicited

the following testimony about the conversation:

l

Q. And at the time you asked her, what do you mean,
why did you ask her that question?
A. 1 need to know what happened, especially for our
safety-wise also in there.
Q. And at the time that you asked her what
happened, what was her emotional state like?
A. Still she was shaken, crying. And I needed a
lot of time to try to calm her down also,
Q. And how did she respond to your question, what
do you mean?
~k ~k *
5 He testified that none of the other officers met with the

Complainant,

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A. She basically said that she got into an argument
with her boyfriend and while inside the apartment -- hotel
room, rather, he punched her once in the face with enough
force to her to fall onto the ground. While on the ground,
he stomped on her right thigh.‘

During his conversation with the Complainant at the
table, he could see the right side of “her lower chin area
starting to swell” and that her chin had “a red mark ”
She also “kept favoring her leg” and he noticed a “two-inch-by-
two-inch red mark” on her right thigh area. The mark was
“circular.” He also noticed “slight abrasions to her knee.”
Officer Kubo left the room approximately forty-five minutes after
he met the Complainant, and testified that the Complainant’s
emotional state did not change during that period. He testified
that the Complainant “had no smell of alcohol and she -- other
than being scared, frightened, crying and in pain, . . . appeared
totally sober to me.” Additionally, he testified that the
Complainant was unsteady on her feet when he left because of the
pain to her right thigh.

At the close of trial, the jury found Delos Santos
guilty of Abuse of Family and Household Members, and the family
court subsequently placed Delos Santos on probation for two years
and sentenced him to ten days in prison with credit for time
already served. The family court stayed the sentence pending

appeal, Delos Santos subsequently appealed the trial court’s

judgment.

6 We refer to the Complainant’s initial statement that “my boyfriend
beat me up” as her “first statement” and her response to the question “what do
you mean” as her “second statement.”

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C. The ICA's November 24, 2009, Judgment On Appeal

Delos Santos appealed to the ICA raising three points
of error: l) the “family court erroneously admitted [the
Complainant]’s purported statements to Officer Kubo as an excited
utterance under HRE 803[;]” 2) “Delos Santos was not afforded
meaningful opportunity to cross-examine [the Complainant], [and]
the family court erred in admitting the statement[;]” and 3)
absent “the admission of [the Complainant]’s purported statements
to Officer Kubo, the State failed to adduce any evidence that
Delos Santos had abused [the Complainant].”

Without addressing Delos Santos’ second point of error,
the ICA, in its majority opinion,7 held that the “family court was
wrong and violated Delos Santos’ rights to a fair trial and due
process by admitting into evidence Officer Kubo’s testimony
regarding Complainant’s hearsay statements as excited utterances,
under HRE 803(b)(2).” State v. Delos Santos; No. 29337 (Haw.
App. Nov. 9, 2009) (mem.) at 8-9. lt correctly laid out the
foundational requirements for the excited utterance exception to
the hearsay rule: l) a startling event or condition occurred; 2)
“the statement was made while the declarant was under the stress
of excitement caused by the event or condition;” and 3) “the
statement relates to the startling event or condition.” ldL at 5
(block quote formatting omitted) (quoting State v. Machado,_l09
Hawafi 445, 45l, l27 P.3d 94l, 947 (2006)).

7 The Honorable Daniel R. Foley and Katherine G. Leonard signed the
majority opinion, and the Honorable Alexa D.M. Fujise filed a dissent, which
is described below.

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lhe1lCA held that the prosecution failed to establish

the second requirement. ldL at 7. lt held that the nature and
circumstances of the Complainant’s statement indicated non-
spontaneity. ld; at 6. The lCA focused on Officer Kubo’s
testimony that he asked the Complainant what happened before she
made her statements, he needed to calm the Complainant down when
he asked her what happened, and “a security officer was already
waiting at the scene when Officer Kubo arrived . . . .” lQL at
6-7. Although the lCA recognized that the Complainant “was in a
state of agitation throughout Officer Kubo’s investigation and
there was a short interval of time between the incident and the
arrival of the officer at the scene[,]” the lCA held that those

factors did not “mitigate against [its] conclusion.” ld. at 7

(citing State v. Moore, 82 HawaiH.202, 221-22, 921 P.2d 122, 142-

43 (1996)).
Additionally, the lCA analogized Machado, 109 HawaFi at

451, 127 P.3d at 947. lt noted that in Machado, the complaining
witness was “pretty emotional” when the officers arrived and that
the “complaining witness remained visibly upset as she described
to the sergeant what had transpired.” Delos Santos, mem. op. at
8. Furthermore, only a short time had passed when the
complainant in Machado gave her statement to the police. ;QL
This court held that the statements were not excited utterances
because “the complaining witness's statement ‘involved a lengthy
narrative of the events of an entire evening,’ ‘was detailed,
logical, and coherent,' and ‘was not delivered under . . . life

threatening physical conditions.’” ld. at 8 (quoting Machado,

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109 HawaFi at 452, 127 P.3d at 948). The_lCA held that the
“facts underlying Machado were substantially similar to the facts
in this case.” lQ;

After holding that the Complainant’s statements should
not have been admitted as excited utterances, the lCA held that
“without Officer Kubo's testimony about Complainant’s hearsay
statements, the State can not adduce substantial evidence to
sustain Delos Santos’ conviction.” ldL at 9. The lCA reversed
the family court’s August 6, 2008, Judgment of Conviction and
Sentence.

While the dissent “agree[d] that the more detailed
statement made by the complaining witness . . . to the police
officer in this case did not qualify for the ‘excited utterance’
exception-to the hearsay rule, [the dissent] would [have held]
that [the Complainant]’s initial statement that ‘my boyfriend
beat me up,’ made upon the officer's arrival, was admissible
under this exception.Y Delos Santos, dissenting op. at 1
(Fujise, J., dissenting) (citing HilVer v. Howat Concrete Co.,
578 F.2d 422, 424 (D.C. Cir. 1978) (held bystander’s statements,
describing fatal accident in response to police officer's
questions as he was “so excited” he could not remember the
officer's questions, admissible as excited utterances); Bosin v.
Oak Lodqe $anitarV District No. 1, 447 P.2d 285, 290 (Or. 1968)
(that statement was elicited by an inquiry is one factor to
consider; “the trial judge must be given considerable lee-way of
decision”) (internal quotation marks and citation omitted);

United States V. JoV, 192 F.3d 761, 766 (7th Cir. 1999) (“[A]

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court need not find that the declarant was completely incapable
of deliberative thought at the time he uttered the

dec1aration.”)).

The dissent would also have held that “admission of
this initial statement was not a violation of the confrontation
clauses of either the HawaFi or United States constitutions”
because the Complainant appeared at trial and Delos Santos “had
the opportunity to cross-examine her, notwithstanding her
testimony that she could not remember the incident in question or

her statements to police.” ld. at 1-2 (footnote omitted) (citing

'United States v. Owens, 484 U.S. 554, 559-60 (1988); Peop1e v.

Garcia-Cordova, 912 N.E.2d 280 (lll. App. Ct. 2009); State v.
Fields, 115 HawaiYi 503, 523, 168 P.3d 955, 975 (2007)).

Final1y, the dissent would have held that there was
sufficient evidence to remand to the family court for a new trial
because the Complainant’s statement “that ‘my boyfriend beat me
up,’ her testimony that she and Delos Santos were living together
at the time and the police officer's observations of her swelling
and marked chin, 1imp, and two-inch by two-inch circular red mark
on her thigh were sufficient to support a conviction for Abuse of
Family or Household Member.” ld; at 2 (citing HRS § 709-906
(Supp. 20075).

II. STANDARDS OF REVIEW
A. Application For Writ Of Certiorari

The acceptance or rejection of an application for writ

of certiorari is discretionary. HRS § 602-59(a) (Supp. 2009).

ii

“ln deciding whether to accept an application, this court reviews

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the decisions of the lCA for (1) grave errors of law or of fact
or (2) obvious inconsistencies in the decision of the lCA with
that of the supreme court, federal decisions, or its own
decisions and whether the magnitude of such errors or
inconsistencies dictate the need for further appea1.” State v.
Whee1er, 121 Hawafi 383, 390, 219 P.3d 1170, 1177 (2009) (citing
HRS § 602-59(b)).

B. Excited Utterance Exception To Hearsay Rule

This court reviews the admissibility of evidence by

application of the hearsay rules under the “right/wrong”
standard. State v. Machado, 109 Hawafi 445, 450, 127 P.3d 941,
946 (2006); State v. Moore, 82 Hawafi 202, 217, 921 P.2d 122, 137

-(l996). Thus, this court reviews whether the lCA “gravely erred”

by determining that the trial court’s decision to admit Officer
Kubo’s testimony was “wrong.”

C. Constitutional Questions

“We answer questions of constitutional law by exercising our

own independent judgment based on the facts of the case

Thus, we review questions of constitutional law under the
‘right/wrong’ standard.” State v. Fields, 115 HawaFi 503, 511,
168 P.3d 955, 963 (2007) (internal quotation marks omitted)
(quoting State v. Feliciano, 107 HawaFi 469j 475, 115 P.3d 648,.
654 (2005)).

D. Sufficiency of the Evidence

We review the sufficiency of the evidence under the

following standard:

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[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. Richie, 88 Hawafi 19, 33, 960 P.2d 1227, 1241 (1998)
(quoting State v. Quitog, 85 Hawafi 128, 145, 938 P.2d 559, 576
(1997)). “‘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.” ld; (internal quotation marks
omitted) (quoting state v. Eastman, 31 Hawai‘i 131, 135, 913 P.2d
57, 61 (1996)).
III. DISCUSSION
The prosecution argues that Officer Kubo’s testimony
was admissible under the excited utterance exception to hearsay \
for two reasons. First, the prosecution asserts that Officer
Kubo’s entire summary of the Complainant’s statements was
admissible. Alternatively, the prosecution asserts that, at “the
very least, [the] initial statement by the complainant that
[Delos Santos] beat her up, made upon Officer Kubo’s arrival, was
admissible as an excited utterance.”
we agree with the lCA that the trial court should not

have admitted the Complainant’s second statement as an excited
utterance under Machado, 109 Hawafi at 452, 127 P.3d at 948

(holding that the complainant's statement was not admissible as

. an excited utterance in part because it “involved a lengthy

l3/

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narrative of the events of an entire evening”). However, the
Complainant’s initial statement that “my boyfriend beat me up”
was admissible as an excited utterance, and the lCA gravely erred
by holding that this statement was not an excited utterance.
Furthermore, the admission of the Complainant’s initial statement
did not violate the confrontation clause of the Hawafi
Constitution. Therefore, we reverse the lCA's judgment on
appeal, and remand to the family court for a new trial.

A. The Complainant’s More Detailed Statement Was Not an Excited
Utterance.

HRE 803(b)(2) (2002) provides that a “statement
relating to a startling event or condition made while the
declarant was under the stress of excitement caused by the event
or condition” is not excluded by the hearsay rule, To qualify as
an excited utterance, the proponent of a statement must establish
that: “(1) a startling event or condition occurred; (2) the
statement was made while the declarant was under the stress of
excitement caused by the event or condition; and (3) the

statement relates to the startling event or condition.” Machado,

109 Hawai‘i at 451, 127 93d at 947 (citing sss sos(b> (2) (2002>>.

Delos Santos did not assert that a “startling event” did not

occur or that the Complainant’s statement related to the

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startling event.8 Thus, the crucial issue on appeal is whether
the Complainant’s statement was made under the stress of
excitement caused by Delos Santos’ physical altercation with her,

The “ultimate question in these cases is ‘whether the
statement was the result of reflective thought or whether it was
rather a spontaneous reaction to the exciting event.’” Machado,
109 sawai‘i at 451, 127 P.sa at 947 (quoting Mga;a_, 92 Hawai‘i at
221, 921 P.2d at 141). The “time span between the ‘startling
event' and the statement to be admitted as an excited utterance”
is a factor in the determination, but a short time period is not
a foundational prerequisite. lQ; (quoting MQQ;e, 82 HawaiH.at
221, 921 P.2d at 141). “Other factors that courts often look to
in determining whether a statement was the product of excitement
include . . . the nature of the event, the age of the”declarant,
the mental and physical condition of the declarant, the
influences of intervening occurrences, and the nature and
circumstances of the statement itself.” ldL (citing MQQ;§, 82
Hawafi at 221, 921 P.2d at 141).

The prosecution asserts that the lCA gravely erred by

concluding that the Complainant did not make her statement under

8 Additionally, under “generally prevailing practice, the statement
itself is considered sufficient proof of the exciting event, and therefore the
statement is admissible despite absence of other proof that an exciting event
occurred.” 2 Kenneth S. Broun et al., McCormick on Evidence § 272 at 256-57

(6th ed. 2006) (footnote omitted).

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the stress of excitement. Additionally, the prosecution asserts
that the lCA's “reliance on the ‘facts underlying’ State v.
Machado, 109 HawaiT_445, 127 P.3d 941 (2006) as ‘substantially
similar to the facts of this case’ is misplaced” because Machado
“involved a lengthy narrative of the events of the entire evening

.” (Emphasis and italics in original;) After considering
the relevant factors, the prosecution’s argument is not
persuasive because the prosecution failed to establish when the
statement was made and whether it was a brief spontaneous comment
or a lengthy narrative which was then summarized by Officer Kubo.
Therefore,_the nature and circumstances of the statement indicate
that the Complainant’s second statement could have been the
product of “reflective thought.” Machado, 109 HawaFi at 451, 127
P.3d at 947 (quoting MgQ;§, 82 Hawafi at 221, 921 P.2d at 141).

1. Nature of the event
The prosecution correctly asserts that “the nature of

the event” was violent, which supports its argument that the
Complainant’s statement was an excited utterance. Officer Kubo
testified that the Complainant told him that Delos Santos hit her
in the face hard enough to fall to the ground. While on the
ground, Delos Santos stomped on her thigh. During their
conversation, Officer Kubo noticed that the Complainant’s lower

chin started to swell, she had slight abrasions on her knee, and

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had a two-inch by two-inch red mark on her thigh area. Thus, the
nature of the event was violent, which supports the prosecution’s
assertion that the Complainant’s statement was made without
reflective thought. See generally State v. Clark, 83 HawaiH 289,
297-98, 926 P.2d 194, 202-03 (1996) (holding that a complainant's
statements that her husband stabbed her were admissible as an
excited utterance in part because of the “vio1ent nature of the

startling event”); Moore, 82 HawaFi at 222, 921 P.2d at 142

(holding that the Complainant’s statement that her husband shot
her was an excited utterance in part because of the “vio1ent
nature of the startling event”); People v. Swinder, 180 Misc.2d
344, 350, 689 N.Y.S.2d 336, 341 (N.Y. Crim. Ct. 1998) (“The
nature of the attack on the complainant - abuse by a family
member - was undeniably traumatic and could have triggered the
‘excited utterance’ by the complainant.”).7 Although the incident
did not rise to the level of the stabbing in Qlark and the
shooting in MQQ;e, the incident was still violent, which supports
admitting it as an excited utterance.
2. The mental and DhVsical condition of the declarant
The mental and physical condition of the Complainant
supports the prosecution’s argument that her statement was not
the product of reflective thought. For instance, when Officer

Kubo arrived, he noticed that the Complainant was “really shaken,

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crying and appeared to be in a lot of pain.” Additionally, at
the time he asked the Complainant “what happenedy” the
Complainant was still “shaken” and “crying.” Finally, the
Complainant’s emotional state did not change during the forty-
five minute period that Officer Kubo was at the hotel. This
court has held that a declarant’s statements five minutes after
being stabbed were excited utterances in part because the
declarant was “really shaken,” obviously “scared” and
“terrified,” and was “trembling” and “starting to cry.” Qla;k,
83 Hawafi at 297, 926 P.2d at 202; see also Machado, 109 HawaFi
at 451, 127 P.3d at 947 (noting that the complaining witness
“remained visibly upset as she described what had transpired”).
Additionally, as discussed above, the Complainant’s lower chin
swelled and she had slight abrasions on her knee and a red mark
on her thigh area. Thus, the Complainant’s mental and physical
condition supports the prosecution’s argument that her statement
was an excited utterance.

3. Time span between the “startling event” and the
statement

\

The prosecution asserts that the “elapsed time between

the abuse and the Complainant’s statements was short as Officer

_Kubo was on the scene within minutes . . . .” (Footnote
omitted.) ln State v. Moore, this court stated that “a statement

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made within minutes of a startling event can often fairly be
characterized as the product of excitement rather than of
deliberation.” 82 HawaiH at 221, 921 P.2d at 141; see also
Machado, 109 Hawaid at 447, 451, 127 P.3d at 943, 947 (describing
ten minute time period between violent incident and police
officer's arrival as “short”). The lCA did not address this
factor in detail, but held that the “short interval of time
between the incident and the arrival of the officer at the scene
does not mitigate against our conclusion.” Delos Santos, mem.

op. at 7.

The amount of time does not weigh in favor of admitting
the second statement because the prosecution did not establish
when the Complainant made the second statement. Officer Kubo
arrived at the apartment “shortly after about 1:05.”9 At the
hearing, he testified that the incident occurred at 1:00.
Although it is impossible to know exactly when the Complainant
made her initial statement, at the time Officer Kubo met the
Complainant, he immediately spoke with her. Because the
Complainantls initial statement was the first part of their

forty-five minute interaction, it is reasonable to infer that her

9 At trial, officer rLu44lu Ly~p¢B¢¥LL7¢LyrQ~

Kirsha K.M. Durante, Deputy 7
Public Defender, ('I'aryn R. Ka»o~.€.l§»gég,) %\_,
Tomasa, Deputy Public Defender,

on the brief§} for respondent- /¢?¢v\ 2 : éhAA»/E//

defendant-appellant

54