State v. Mariano11/14/2001
Defendant-Appellant Roderick Paul C. Mariano (Mariano) was convicted, as charged, pursuant to a jury trial in the Circuit Court of the First Circuit (circuit court), of two counts of Sexual Assault in the Fourth Degree, in violation of Hawaii Revised Statutes (HRS) § 707-733(1)(a) (1993), and three counts of Sexual Assault in the Second Degree, in violation of HRS § 707-731(1)(a) (Supp. 2000).
Mariano appeals the October 22, 1999, Judgment; the October 29, 1999, Findings of Fact, Conclusions of Law and Order Denying Defendant's Motion for Judgment of Acquittal or in the Alternative for a New Trial (the October 29, 1999, Order); and the December 6, 1999, Amended Judgment.
Mariano contends on appeal that the circuit court erred in refusing to give the requested jury instruction on consent, in not admitting into evidence the unedited videotape (the "tape") of an interview with the victim, and in denying his Motion for Judgment of Acquittal or in the Alternative for a New Trial because the verdict was not supported by the evidence. We disagree and affirm the December 6, 1999, Amended Judgment of the circuit court.
I. BACKGROUND
On July 11, 1996, Mariano, a citizen of the Philippines and resident of Canada, was on vacation in Hawaii visiting family. He and his wife, Jenny, spent the night of July 11, 1996 (that night) at the home of his cousin, the victim's mother (Mother). The Marianos slept in the living room with Mother's three children that night. On July 12, 1996, Mariano and Jenny departed for their home in Canada. After Mariano and Jenny left, the victim advised her family that Mariano had sexually assaulted her during that night. The victim was fourteen years old at the time.
At trial, the victim testified that on that night the following events took place. During the evening, while the victim and Mariano were in the living room, Mariano took the victim's hand and stuck it into his shorts, and she felt his penis and pubic hair. The victim did not say anything to Mariano. Later, while the victim was sleeping, Mariano reached over the victim's sleeping seven-year-old brother, stuck his hand in her sports bra, and fondled her breast. The victim pretended to be asleep.
The victim testified that at one in the morning, Mariano went to the bathroom. The victim awakened, got up, and went into the kitchen where she waited for Mariano to go back to bed so she could then go to her own bedroom to sleep. When the victim thought Mariano had left the bathroom, she went into the hallway, turned on the hall light, and saw Mariano standing in the hall. Mariano grabbed the victim's hand and pulled her closer. Mariano kissed the victim, sticking his tongue in her mouth and sucking her lip; then, with his hands on her shoulders, Mariano pushed her to her knees. Mariano placed his penis in the victim's mouth and held her head, thrusting in and out.
Mariano then took the victim into the bathroom. The victim told Mariano, "I don't want to do this"; Mariano told her not to tell anyone. Mariano told the victim to undress, and she removed her pants and underwear. Mariano made the victim sit on the sink, and he placed his tongue in her vagina. Mariano then placed his penis part way into her vagina. The victim did not cry out because she was afraid her parents would blame her. Mariano left and the victim then went to bed in her bedroom. All these events happened without the victim's permission.
Testifying in his own defense, Mariano denied that any of these events occurred and denied using the bathroom during that night. Mariano testified that he wore long pants with a belt, not shorts, and that he slept wearing his pants t
Page 1 2 3 4 5 6 7 Hawaii Employee Leasing Services
Employee Leasing Services
|