LAHVL§HKAHY
NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AN]) PACIFIC REPORTER
§§ §
No. 29644 x
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IN THE INTERMEDIATE COURT OF APPEALS §§
oF THE STATE oF HAWAI‘I
?9
, _ §§ ¢n
Pla1ntiff-Appellee, v. ‘“ F¢
STATE oF HAWAI‘I,
ALEXANDER DAMO, Defendant-Appellant
APPEAL FROM THE FAMILY COURT OF THE FIRST CIRCUIT
(FC-CRIMINAL NO. 08-1-2280) »
SUMMARY DISPOSITION ORDER
(By: Foley, Presiding J., Fujise and Ginoza, JJ.)
Defendant-Appellant Alexander Damo (Damo) appeals from
the Judgment of Conviction and Sentence filed on January l5, 2009
in the Family Court of the First Circuit1 (family court). The
in violation of
family court found Damo guilty of Harassment,
(HRS) § 7ll-llO6(l)(a)
Damo contends (1)
(Supp. 2008).
the family court erred
Hawaii Revised Statutes
On appeal,
when it found that Minor was competent to testify at trial and
(2) there was insufficient evidence to convict Damo of
Harassment.
Up0n 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, as
well as the relevant statutory and case law, we resolve Damo's
points of error as follows:
(l) The family court did not err when it found that
Minor was competent to testify at trial under Hawaii Rules of
Evidence (HRE) Rule 603.l. Rule 603.1 disqualifies a witness
from testifying if the witness is "incapable of expressing
oneself so as to be understood, either directly or through
interpretation by one who can understand the person" or
"incapable of understanding the duty of a witness to tell the
1 The Honorable Gale L.F. Ching presided.
NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
truth." "[T]he question of testimonial competency must be
determined on a case by case [sic] basis." State v. Kelekolio,
74 HaW. 479, 528, 849 P.2d 58, 80 (l993).
During his competency hearing, Minor testified that he
understood the truth and that he would testify truthfully. Minor
responded to questions from the family court about three examples
of the truth. Over the defense's objection, the family court
found that Minor was competent to testify. Whether Minor
hesitated in response to the family court's questions does not
invalidate the court's determination that he was competent to
testify under HRE 603.l.
(2) The family court did not err in convicting Damo of
Harassment because there was substantial evidence adduced at
trial to prove each element of HRS § 711-1l06(l)(a), which
provides:
§711-1106 Harassment. (l) 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[.]
At trial, the vice-principal (Vice-Principal) of
Minor's school testified that on November 24, 2008, Minor's
teacher sent Minor to the office because Minor "had a noticeable
bruise on his forehead." Vice-Principal described the bruise as
the size of a golf ball and a little darker than Minor's skin,
with some redness. vice-Principal also testified that there were
a couple of purple, black, and blue bruises extending down
Minor's left shin.
A counselor from Minor's school also testified,
corroborating Vice-Principal's testimony about the bruising on
Minor's shin on November 24, 2008.
On direct, Minor testified he told Vice-Principal that
his father had caused the bruises on his leg. Minor further
NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
indicated that his dad had hit him at home and sometime after
getting hit, Minor had visited the health room at school.
This evidence substantially supports Damo's conviction
under HRS § 711-1l06(l)(a). Damo's intent can be reasonably
inferred from the circumstances. State v. Eastman, 81 HawaiH.
131, 141, 913 P.2d 57, 67 (i996) (ho1ding that "proof by
circumstantial evidence and reasonable inferences arising from
circumstances surrounding the defendant's conduct is
sufficient").
(3) There is no evidence Minor consented to the
harassment that caused the heavy bruising he suffered. §§e HRS
§ 701-115(2) (l993) (providing that "[n]o defense may be
considered by the trier of fact unless evidence of the specified
fact or facts has been presented").
Therefore,
IT IS HEREBY ORDERED that the Judgment of Conviction
and Sentence filed on January l5, 2009 in the Family Court of the
First Circuit is affirmed.
DATED: Honolulu, Hawafi, August 30, 20lO.
On the briefs:
Craig W. Jerome, ,,_
Deputy Public Defender, “ § 7 -
for Defendant-Appellant. '
Presiding Judge
Delanie D. Prescott-Tate,
Deputy Prosecuting Attorney,
City and County of Honolulu,
for Plaintiff-Appellee. ’*
. 4P’
Associate Jud
l.;.m!