NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
25-JUN-2021
08:10 AM
Dkt. 60 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
STATE OF HAWAI#I, Plaintiff-Appellee,
v.
KALANI UYEMURA, Defendant-Appellant
APPEAL FROM THE DISTRICT COURT OF THE THIRD CIRCUIT
NORTH AND SOUTH KONA DIVISION
(CASE NO. 3DCW-XX-XXXXXXX)
SUMMARY DISPOSITION ORDER
(By: Ginoza, Chief Judge, Hiraoka and Wadsworth, JJ.)
Defendant-Appellant Kalani Uyemura (Uyemura) appeals
from the December 27, 2019 Judgment and Notice of Entry of
Judgment and the January 27, 2020 Amended Judgment and Notice of
Entry of Judgment, entered in the District Court of the Third
Circuit, Kona Division (District Court).1 The District Court
found Uyemura guilty of Assault in the Third Degree (Assault 3),
in violation of Hawaii Revised Statutes (HRS) HRS § 707-712
(2014);2 and Theft in the Third Degree (Theft 3), in violation of
1
The Honorable Margaret K. Masunaga presided.
2
HRS § 707-712 provides, in relevant part:
(1) A person commits the offense of assault in the
third degree if the person:
(a) Intentionally, knowingly, or recklessly
causes bodily injury to another person[.]
. . . .
(2) Assault in the third degree is a misdemeanor
unless committed in a fight or scuffle entered into by
mutual consent, in which case it is a petty
misdemeanor.
(continued...)
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HRS § 708-832 (Supp. 2016).3
On appeal, Uyemura raises the following three points of
error: (1) insufficient evidence supports the Assault 3
conviction because no other witness corroborated complaining
witness Joshua K. Waters' (Waters) testimony, and defense witness
Megan Saenz (Saenz) testified that Waters was the aggressor and
that Uyemura acted only in self defense; (2) insufficient
evidence supports the Theft 3 conviction because, other than
Waters' testimony that his phone was worth $600, there was no
additional evidence of the phone's value, such as receipts or an
appraisal; and (3) the District Court failed to consider mutual
affray as a mitigating defense to Assault 3.
Upon 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, we
affirm.
(1) The appellate court reviews a sufficiency-of-the-
evidence challenge as follows:
[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 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. Indeed,
even if it could be said in a bench trial that the
conviction is against the weight of the evidence, as
long as there is substantial evidence to support the
requisite findings for conviction, the trial court
will be affirmed. . . . "Substantial evidence" . . .
is credible evidence which is of sufficient quality
and probative value to enable a person of reasonable
caution to support a conclusion.
State v. Matavale, 115 Hawai#i 149, 157-58, 166 P.3d 322, 330-31
(2007).
2
(...continued)
As set forth in HRS §707-700 (2014), "bodily injury" is defined as
"physical pain, illness, or any impairment of physical condition."
3
HRS § 708-832 provides, in relevant part: "A person commits the
offense of theft in the third degree if the person commits theft: (a) Of
property or services the value of which exceeds $250[.]"
2
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The District Court found Waters credible and Saenz not
credible. Waters and Saenz testified to very different versions
of events occurring on March 25, 2019.
Waters testified he observed Uyemura in the parking lot
of the condominium complex where they both were living and
Uyemura did a "hand-off" exchange with a vehicle occupant.
Waters approached Uyemura, asked for his name, they did a fist
bump, and Waters walked towards the complex's smoking pavilion.
A few minutes later, Uyemura approached Waters yelling and in
response Waters told Uyemura he and others were tired of the
traffic that comes in and out of Uyemura's unit all hours of the
day, and to take his business outside the fence because there are
kids in the area. Uyemura spat in Waters' face and took some
swings at Waters, who jumped backwards and his phone fell out of
his pocket. Uyemura then took the phone and ran, Waters chased
Uyemura but he ran across the road to a commercial parking lot,
where Uyemura started throwing rocks at Waters, one of which hit
Waters in the shin and broke some skin. Waters returned to the
condominium complex where he was followed by a woman he believed
to be Uyemura's girlfriend or roommate, who was belligerent and
yelling at him. Waters then encountered Uyemura again at the
condominium complex and told Uyemura to return his phone.
Uyemura was belligerent, started wildly jumping around, spat in
Waters' face again, and swung his fists at Waters, with one of
the swings hitting Waters in the cheekbone breaking skin. Waters
then fought back, hit Uyemura with a left hook, and they ended up
wrestling until a neighbor came out, at which point Uyemura went
to his unit. Waters subsequently called the police.
Saenz testified that Uyemura is her friend, that she
had witnessed an incident between Uyemura and another person from
his apartment complex, during which the other person was chasing
Uyemura while holding a big rock on his shoulders and yelling at
Uyemura. Uyemura ran to a parking lot across the street, and the
other person returned to the area of the apartments. Eventually,
Uyemura, Saenz and the other person ended up near Uyemura's
apartment where the other person started pushing Uyemura and
3
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there was a little scuffle. Saenz testified that the other
person hit Uyemura first.
The District Court also noted the testimony of Hawai#i
County police officer Chandler Nacino (Officer Nacino), who
responded to the incident and testified that Waters' face was
bloody and his left shin was cut and bleeding. Officer Nacino
also testified that Uyemura had an abrasion to one of his hands.
"It is well-settled that an appellate court will not
pass upon issues dependent upon the credibility of witnesses and
the weight of the evidence; this is the province of the trial
judge." State v. Gella, 92 Hawai#i 135, 142, 988 P.2d 200, 207
(1999) (citation omitted). Further, "[t]he testimony of one
percipient witness can provide sufficient evidence to support a
conviction." State v. Pulse, 83 Hawai#i 229, 244, 925 P.2d 77,
812 (1996) (citations omitted). Thus, we do not pass on the
District Court's credibility assessment finding Waters credible
and finding Saenz to be not credible.
Viewing the evidence in the light most favorable to the
prosecution, as we must, there is substantial evidence in the
record supporting Uyemura's conviction for Assault 3.
(2) Sufficient evidence supports the Theft 3 conviction
because Waters testified that he believed his phone, an iPhone 6,
was worth $600 in 2019. He based the amount on what he purchased
his iPhone 5 for in 2017. There is no legal requirement that a
stolen item's value be proved by a receipt or appraisal.
Even if we assume Waters' testimony about the phone was
somehow incompetent, Uyemura did not object or move to strike
Waters' testimony regarding the value of the phone.4 "[T]he rule
4
Uyemura does not dispute any element of Theft 3 other than the
phone's value. HRS § 708-801 (2014) provides, in relevant part:
Whenever the value of property or services is
determinative of the class or grade of an offense, or
otherwise relevant to a prosecution, the following
shall apply:
(1) Except as otherwise specified in this
section, value means the market value of
the property or services at the time and
place of the offense, or the replacement
(continued...)
4
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is well settled that evidence even though incompetent, if
admitted without objection or motion to strike, is to be given
the same probative force as that to which it would be entitled if
it were competent," and its admission "will not constitute ground
for reversal." State v. Wallace, 80 Hawai#i 382, 410, 910 P.2d
695, 723 (1996). The District Court properly considered Waters'
testimony.
Moreover, contrary to Uyemura's contention, Hawai#i
courts do not require an appraisal or receipt to establish the
value element of a stolen item in a theft charge. See, e.g.,
State v. Carroll, 146 Hawai#i 138, 153, 456 P.3d 502, 517 (2020);
State v. Kahele-Bishop, No. CAAP-XX-XXXXXXX, 2017 WL 430844, at
*6 (App. Jan. 31, 2017) (mem.); State v. Thorp, No. CAAP-13-
0000414, 2014 WL 4914623, at *1 (App. Sept. 30, 2014) (SDO).
Viewed in the light most favorable to the prosecution,
there is substantial evidence in the record supporting Uyemura's
conviction for Theft 3.
(3) Uyemura argues that the District Court failed to
consider mutual affray as a mitigating defense to Assault 3, as
evidenced by the District Court's "fail[ure] to make any findings
as to whether mutual affray occurred."
Uyemura only cites State v. Kikuta, 125 Hawai#i 78, 96,
253 P.3d 639, 657 (2011), where the Hawai#i Supreme Court held
that "the [trial] court must submit a mutual affray instruction
to the jury where there is any evidence in the record that the
injury was inflicted during the course of a fight or scuffle
entered into by mutual consent, as indicated in [Hawai#i Jury
Instructions Criminal] 9.21." Uyemura provides no explanation
for how the ruling in Kikuta can or should apply to a bench trial
where there is no jury to instruct. Moreover, he fails to show
how the District Court erred in not entering specific findings on
the record as to the mutual affray defense. Hawai#i Rules of
Penal Procedure (HRPP) Rule 23 requires the trial court in a
4
(...continued)
cost if the market value of the property
or services cannot be determined.
5
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bench trial to enter special findings when requested by a party,5
but Uyemura made no such request here. Accordingly, his argument
lacks merit.
For the reasons set forth above, the December 27, 2019
Judgment and Notice of Entry of Judgment and the January 27, 2020
Amended Judgment and Notice of Entry of Judgment, entered in the
District Court of the Third Circuit, Kona Division, are hereby
affirmed.
DATED: Honolulu, Hawai#i, June 25, 2021.
On the briefs: /s/ Lisa M. Ginoza
Chief Judge
Ashlyn L. Whitbeck,
Deputy Public Defender, /s/ Keith K. Hiraoka
for Defendant-Appellant. Associate Judge
Stephen L. Frye, /s/ Clyde J. Wadsworth
Deputy Prosecuting Attorney, Associate Judge
for Plaintiff-Appellee.
5
HRPP Rule 23(c) provides:
(c) Trial without a jury. In a case tried
without a jury the court shall make a general finding
and shall in addition, on request made at the time of
the general finding, find such facts specially as are
requested by the parties. Such special findings may
be orally in open court or in writing at any time
prior to sentence.
6