, by Worsham against the CW,
NOT FOR PUBLICATION IN W_EST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
NO. 28389
§§
mi
IN THE INTERMEDIATE COURT OF APPEALS
oF THE STATE oF HAWAI‘I
63=3 H%' 62 HHFB!DZ
STATE OF HAWAIT, Plaintiff-Appellee, v.
CURTIS P. WORSHAM, Defendant-Appellant
APPEAL FROM THE FAMILY COURT OF THE FlRST CIRCUIT
(FC-CR. NO. 06-1-lO79)
SUMMARY DISPOSITION ORDER 1
(By: Nakamura, C.J., Fujise and Reifurth, JJ.)
Defendant-Appellant Curtis P. Worsham (Worsham) appeals
2007 Judgment of Conviction and Sentence of
from the January 22,
(family court),1 convicting
the Family Court of the First Circuit
Worsham of violating an order for protection, in violation of
Hawaii Revised Statutes (HRS) § 586-ll (2006).
Worsham raises the following points of error on appeal:
(1) the family court abused its discretion in allowing hearsay
in allowing that officer
from the investigating police officer,
(CW)
to give his opinion as to the complaining witness's
and in allowing that officer to indirectly volunteer
credibility,
and (2) defense
his personal opinion on an ultimate issue;
counsel rendered ineffective assistance by failing to subpoena a
necessary alibi witness, failing to obtain a relevant report made
and engaging in harmful cross-
examination. We find both points to be without merit and affirm.
1 The Hon0rable Patrick W. Border presided.
UB"!`IA
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Worsham argues that the family court abused its
discretion in improperly admitting, over objection, hearsay
testimony of the CW for a limited purpose under Feliciano and
committed plain error in permitting the State to weave that
hearsay into questions eliciting the police officer's opinion as
to the credibility of the CW. Under State v. Feliciano, 2 Haw.
App. 633, 636, 638 P.2d 866, 869 (l982) (citing State v. Perez,
64 Haw. 232, 638 P.2d 335 (1981)), a trial court may "admit
extrajudicial statements offered to explain an officer's conduct
during the investigation procedures leading up to the arrest of
the defendant, but not for their truth."
Here, it appears that the testimony regarding out-of-
court statements of the CW was properly admitted, not to prove
the truth of what the CW said, but to establish the basis for the
officer's subsequent actions. In addition, the family court
issued a contemporaneous limiting instruction and the CW
testified at trial and was subject to cross-examination.
Worsham's argument that incriminating out-of-court
statements are not admissible under Feliciano is without merit.
While it is true that the Feliciano court noted that the hearsay
involved there was not incriminating, the decision did not limit
its holding to non-incriminating statements. Moreover, Perez,
cited with approval by the Feliciano court, was a case involving
incriminating statements. Perez, 64 Haw. at 233, 638 P.2d at 336
("The guy you looking for is Leroy Perez.").
Worsham also challenges the officer's testimony
regarding the consistency of the CW's oral and written statements
on state and federal confrontation clause grounds. worsham
argues that questions regarding whether the CW's written
statement was consistent with what she orally told the officer
was tantamount to a request for an opinion from the officer as to
the CW's credibility. However, a review of the record supports
the conclusion that the officer was simply testifying to a fact,
i.e., whether the oral and written statements were consistent.
He was not asked for and did not opine on the CW's credibility.
2
NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
Worsham argues that defense counsel rendered
ineffective assistance by failing to subpoena a necessary alibi
witness, by failing to obtain a relevant police report made by
Worsham, and by harmful cross-examination.
Worsham's unverified assertions concerning his trial
counsel's failure to subpoena a necessary alibi witness and to
obtain a relevant police report made by Worsham are insufficient
to satisfy Worsham's burden of proving ineffective assistance of
counsei. state v. Reed, 77 Hawai‘i 72, 33-35, 331 P.2d 1213,
1229-31 (l994), overruled on other grounds by State v. Balanza,
93 HawaiU_279j l P.3d 281 (2000). Worsham's uncorroborated
assertions regarding (l) what Joshua Godbolt would have testified
to if called as a witness and (2) the existence of a police
report made by Worsham against the CW for a January 2l, 2006
phone call is insufficient to establish his ineffective
assistance of counsel claim under B§§Q. Moreover, assuming there
is evidence of a subsequent protective order violation complaint
by Worsham against CW, it would be of marginal if any relevance
to the instant prosecution against Worsham.
Worsham's claims concerning his trial counsel's harmful
cross-examination are also unconvincing. It appears that the
elicitation of testimony pertaining to previous violations of the
protection order by worsham was not the result of ineffective
assistance of counsel but was based on counsel's pretrial
discovery which showed no previous complaints.
Likewise, while Worsham's counsel may have inartfully
fleshed out the "visibility" factor as it pertained to the
witnesses' identifications of Worsham, there was ample testimony
upon which counsel could argue that the State's witnesses'
identifications were suspect. In any event, the area of cross-
examination by counsel is in the realm of trial strategy in which
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counsel is given broad latitude. State v. Silva, 75 Haw. 4l9,
441-42, 864 P.2d 583, 593 (1993).
Based on the foregoing, it is hereby ordered that the
January 22, 2007 Judgment of Conviction and Sentence of the
Family Court of the First Circuit is affirmed.
DATED: H@n@luiu, Hawai‘i, June 29, 2010.
On the briefs:
Mary Ann Barnard, 9/ ~ /7( /¢z;zé;aHVLGLb¢"~
4 for Defendant-Appellant. " /d f
Chief Judge
Brian R. Vincent, `
DePutY Prosecuting Attorney, C:2L*Fabb4;) r~
City and County of Honolulu, 4
for Plaintiff-Appellee. Associate Judge
PimM/nu m QvJ¢-J‘:Pt__
Associate Judge