NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER
NO. 29746
IN THE INTERMEDIATE COURT OF APPEALS
oF THE sTATE oF HAwAIT
STATE oF HAWA:‘I, Plaintiff-Appeilee,
v. §
DAVID MAXWELL, Defendant~p.ppellant; 5
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APPEAL FROM THE DISTRIC'I' COURT OF THE F'IRST CIRCUIT
HONOLULU DI`\/'ISION
(CASE NO. lP10808566)
y SUMMARY DISPOSITION ORDER
(By: Fujise, Presiding Judge, Leonard and Reifurth, JJ.)
Defendant-Appellant David Maxwell (MaXwell) appeals
from the Notice of Entry of Judgment and/or Order (Judgment)
filed on March 4, 2009 in the District Court of the First
Circuit, Honolulu Division (district court).W
Maxwell was convicted of Attempted Criminal Property
Damage in the Fourth Degree, in violation of Hawaii Revised
Statutes (HRS) § 708-823 (Supp. 2009). The Judgment reflects a
violation of HRS § 708-823, but the court's oral explanation of
its ruling at the close of trial clarifies that the court found
Maxwell guilty of attempt to commit the crime, as defined in HRS
§ 705~5OO (l993). The court further explained that "attempted
criminal property [damage] in the fourth degree is an included
offense of criminal property [damage] in the fourth degree."
On appeal, Maxwell contends that there was insufficient
evidence to convict him of Attempted Criminal Property Damage in
the Fourth Degree. Plaintiff-Appellee State of HawaFi contends
there was substantial evidence to convict Maxwell of Attempted
1 The Honorable Russel Nagata presided.
newell
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Criminal Property Damage in the Fourth Degree.
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
resolve Maxwell's point of error as follows:
The complaining witness stated that Maxwell jumped onto
the hood of the car she was driving and began pulling at the
windshield wiper with all of his might. She believed that
MaXwell was going to break it off and use it to damage the
windshield. The district court did not believe that Maxwell was
holding on to the windshield wiper because the vehicle was moving
forward while he was on the hood. "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 trier of fact." State vp Mattiello, 90
HawaiU_255, 259, 978 P.2d 693, 697 (l999) (internal quotation
marks and brackets omitted).
"[G]iven the difficulty of proving the requisite state'
of mind by direct evidence in criminal cases, we have
consistently held that proof by circumstantial evidence and
reasonable inferences arising from circumstances surrounding the
defendant's conduct is sufficient[.]" State v. Stocker, 90
Hawai‘i 85, 92, 976 P.2d 399, 406 (l999) (internal quotation
marks, brackets, and ellipses omitted). "Thus, the mind of an
alleged offender may be read from his acts, conduct and
inferences fairly drawn from all the circumstances." Id. The
district court concluded that Maxwell deliberately attempted to
damage the windshield wipers when he jumped onto the hood of the
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car and pulled at them with all of his might. The owner of the
vehicle testified that he did not give permission to MaXwell to
damage the vehicle. The windshield wipers were not damaged,
therefore, MaXwell may not be convicted of Criminal Property
Damage in the Fourth Degree. However, MaXwell's actions
constituted intentional conduct which constitute a substantial
step in a course of conduct intended to culminate in the damage
of the windshield wipers.
Therefore,
IT IS HEREBY ORDERED that Maxwell's conviction for
Attempted Criminal Property Damage in the Fourth Degree and the
March 4, 2009 Judgment are affirmed.
DATED= Honoiulu, Hawai‘i, June 29, 2010.
On the briefs:
Jon N. Ikenaga,
Deputy Public Defender,
for Defendant~Appellant.
Stephen K. Tsushima,
Deputy Prosecuting Attorney,
City & County of Honolulu,
for Plaintiff~Appellee. Associate Judge