No. SCWC-29550, Thursday, September 19, 2013, 8:45 a.m.

STATE OF HAWAI`I, Respondent/Plaintiff-Appellee, vs. ENRICO CALARA, Petitioner/Defendant-Appellant.

The above-captioned case has been set for argument on the merits at:

Supreme Court Courtroom
Ali`iolani Hale, 2nd Floor
417 South King Street
Honolulu, HI 96813

Attorney for Petitioner/Defendant-Appellant:

James S. Tabe, Deputy Public Defender

Attorney for Respondent/Plaintiff-Appellee:

Stephen K. Tsushima, Deputy Prosecuting Attorney

NOTE: Order accepting Application for Writ of Certiorari, filed 06/28/13.

COURT: MER, CJ; PAN, SRA, SSM, & RWP, JJ.

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Brief Description:

Petitioner/Defendant-Appellant Enrico Calara (“Calara”) timely filed an application for a writ of certiorari to review the March 18, 2013 judgment of the Intermediate Court of Appeals (ICA), issued pursuant to its February 14, 2013 Summary Disposition Order, which affirmed the Circuit Court of the First Circuit’s December 18, 2008 “Judgment of Conviction and Probation Sentence.”

Calara was charged, via complaint, with the offense of Sexual Assault in Fourth degree, in violation of HRS § 707-733. The charges stemmed from an incident in which Calara’s adult niece accused him of entering her bedroom at night and fondling her body without her consent. Calara denied the allegations and testified that he was in his bedroom all night when the alleged incident occurred.

In his application, Calara argues that the ICA gravely erred by: (1) holding that Calara’s right to present a complete defense was not violated when the circuit court precluded him from introducing evidence of the complainant’s drug pipe and by cross-examining the complainant about her drug use for the purposes of attacking her perception and recollection; (2) deciding the issue of whether the circuit court erred in admitting the police detective’s testimony that probable cause was established to arrest Calara for sexual assault in the fourth degree under the plain error standard of review and in failing to hold that the testimony was irrelevant and improper; (3) concluding that the admission of the complainant’s statement to Theresa Nishite as an “excited utterance” was harmless beyond a reasonable doubt (4) concluding that the evidence of Calara’s prior statements uttered in January and February 2007 to establish his intent were relevant; and (5) holding that the circuit court’s failure to provide a limiting instruction at the time of complainant’s testimony regarding Calara’s alleged prior statements and as part of the final charge to the jury was not plain error.