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N0. 28393
IN THE INTERMED:ATE coURT oF APPEALS §§ §
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STATE oF HAWAI‘I, Plainciff-Appellee, §*;;:F§§ 3
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DONALD ISEKE, Defendant-Appellant go m
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APPEAL FROM THE FAMILY COURT OF THE FIRST CIRCUIT
(FC~CRlMINAL NO. 06-l-2080)
SUMMARY DISPOSlTION ORDER
(By: Foley, Presiding Judge, Fujise and Reifurth, JJ.)
Defendant-Appellant Donald Iseke (Iseke) appeals from
Vthe Judgment of Conviction and Sentence filed on January l9,
2007, in the Family Court of the First Circuit1 (family court),
The judgment followed the jury's conviction of Iseke for
Harassment, in violation of Hawaii Revised Statutes (HRS) § 711-
ll06(l)(a) (Supp. 2009). Iseke was found not guilty of
Terroristic Threatening in the Second Degree in violation of
HRS § 707-717 (l993).
The family court sentenced Iseke to imprisonment for a
term of thirty days and to pay a fine of $30, but the sentence
was stayed pending appeal,
On appeal, Iseke contends that the family court
reversibly erred because there was no substantial evidence to
support Iseke's conviction in that (l) he did not act with the
requisite intent to harass, annoy or alarm the victim, and (2)
credible evidence established that any physical contact he
initiated with the victim was not in self-defense.
HO
After a 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, as
well as the relevant statutory and case law, we resolve Iseke's
points of error as follows:
(l) Iseke claims that there was insufficient evidence
to convict him of Harassment because the State failed to prove
The Honorable Rhonda A. Nishimura presided.
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the intent element of the offense. We conclude that there was
sufficient evidence to prove intent and, hence, to convict Iseke
of Harassment.
[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. Thus, the mind of an
alleged offender may be read from his acts, conduct and
inferences fairly drawn from all the circumstances."
State V. StOCker, 90 HawaFi 85, 92, 976 P.2d 399, 406 (l999)
(ellipses and brackets omitted) (quoting State v. Mitsuda, 86
Hawai‘i 37, 44, 947 P.2d 349, 356 (1997).
In assessing the sufficiency of the evidence, the
appellate court considers the evidence adduced "in the strongest
light for the prosecution." State v. Richie, 88 HawaiU.19, 33,
960 P.2d 1227, 1241 (1998) (quoting State v. Quitog, 85 Hawafi
128, 145, 938 P.2d 559, 576 (1997)). "Substantial evidence as to
every material element of the offense charged is credible
evidence which is of sufficient quality and probative value to
enable a person of reasonable caution to support a conclusion."
Richie, 88 HawaiH at 33, 960 P.2d at 1241 (internal quotation
marks omitted).
The jury was presented with evidence that: (1) Iseke
walked by his wife, Elizabeth Iseke (Elizabeth), with a BB gun or
rifle “strapped on his shoulder"; (2) Iseke's chest was "puffed
out" and he was breathing heavily, and he displays this type of
body language when he is angry; (3) Iseke told Elizabeth that he
may have to use the weapon he was carrying on someone when
Elizabeth asked what his problem was; (4) Iseke yelled and swore
at Elizabeth; (5) Elizabeth pushed Iseke in the chest to get him
"out of [her] face" because "he was backing [her] into the
stove," but Iseke "hardly moved"; (6) Iseke then pushed Elizabeth
in the upper chest, causing her to fall back into the stove; (7)
Elizabeth's elbow struck a pan of sausage that she was frying,
and was burned by hot grease; (8) Iseke did not offer to help
Elizabeth; (9) Iseke warned that someone would die if Elizabeth
called the police; (10) Elizabeth had tried to divorce Iseke, but
Iseke would not cooperate; and (11) Elizabeth did not wish to
testify, and would not have been present in court had she not
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been subpoenaed, because, she said, she did not want anything to
happen to her children.
Although some of the evidence was controverted, it was
sufficient to determine the requisite intent. "It matters not if
a conviction under the evidence as so considered might be deemed
to be against the weight of the evidence so long as there is
substantial evidence tending to support the requisite findings
for the conviction.“ State v. Idelfonso, 72 Haw. 573, 576-77,
827 P.2d 648, 651 (1992).
(2) Iseke claims that his conviction must be reversed
because the State failed to disprove his claim of self-defense.
Elizabeth testified, however, that although she pushed Iseke
first, it was in self-defense because he was backing her into the
stove, and that Iseke "hardly moved" in response to her push.
The jury was not persuaded by Iseke's claim of self-
defense. Elizabeth's testimony represented credible evidence
that the physical contact initiated by Iseke was not in self-
defense. "[I]t is well-settled that 'an appellate court will not
pass upon issues dependent upon the credibility of the witnesses
and the weight of the evidence[.]'" Domingo v. State, 76 Hawafi
237, 242, 873 P.2d 775, 780 (1994).
The January 19, 2007 Judgment of Conviction and
Sentence entered in the family court is affirmed.
DATED: Honolulu, HawaiTq April 22, 2010.
On the briefs: _ yQ)
Jeffrey A. Hawk Presiding Judge
(Hawk, Sing & 1gnacio)
for Defendant-Appellant . 2 . .
¢&/
Associate Ju
Anne K. Clarkin,
Deputy Prosecuting Attorney',
City & County of Honolulu,
for Plaintiff-Appellee. Associate Judge