NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

NO. CAAP-19-0000082

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

STATE OF HAWAI#I, Plaintiff-Appellee,

v.

KENNETH BEATY, ALSO KNOWN AS CANDISE DAY,

LAKENYA LOVE AND TONY ANN LOVE,

Defendant-Appellant

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT

(CR. NO. 1PC16-1-001025)

SUMMARY DISPOSITION ORDER

(By: Ginoza, Chief Judge, Chan and Hiraoka, JJ.)

Defendant-Appellant Kenneth Beaty, (Beaty),1 appeals

from the January 8, 2019 "Judgment of Conviction and Sentence"

entered by the Circuit Court of the First Circuit (Circuit

Court).2 A jury convicted Beaty of Theft in the Second Degree,

in violation of Hawaii Revised Statutes (HRS) § 708-831(1)(b)

(2014).3 The Circuit Court sentenced Beaty to an indeterminate 

term of imprisonment of five years with a lesser mandatory

minimum of one hundred and thirty-three days. 

1 Beaty is a transgendered individual and at trial was referred to as

Lakenya Love; therefore, Beaty is identified herein as "she." 

2 The Honorable Todd W. Eddins presided.

3 The offense occurred on June 24, 2016. The applicable version of HRS 

§ 708-831(1)(b) stated in relevant part: "A person commits the offense of

theft in the second degree if the person commits theft: . . . (b) Of property

or services the value of which exceeds $300[.]"

Electronically Filed

Intermediate Court of Appeals

CAAP-19-0000082

29-MAY-2020

08:17 AM
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On appeal, Beaty contends (1) the Circuit Court

erroneously concluded Plaintiff-Appellee State of Hawai#i (State)

established sufficient foundation to support admission of a

printed Macy's store receipt (Receipt), designated as State's

Exhibit 5; and (2) there was a lack of substantial evidence to

convict Beaty of shoplifting as defined by the Circuit Court's

instruction to the jury. 

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, as

well as the relevant statutory and case law, we resolve Beaty's

points of error as follows, and affirm.

(1) In Beaty's first point of error she contends the

Circuit Court abused its discretion when it admitted the Receipt

because the State failed to lay a sufficient foundation that the

information on the Receipt regarding the value of the stolen

merchandise was accurate.4 In theft cases involving shoplifting,

HRS § 708-830(8) provides that proof of "[t]he unaltered price or

name tag or other marking on goods or merchandise, duly

identified photographs or photocopies thereof, or printed

register receipts shall be prima facie evidence of value and

ownership of such goods or merchandise." HRS § 708-830(8).5

4 Beaty also argues, for the first time on appeal, that the State could

have laid a sufficient foundation if the Receipt was authenticated pursuant to

Hawaii Rules of Evidence Rule 902 (Self authentication). Because Beaty did

not raise authenticity of the Receipt below, this argument is waived. 

5 HRS § 708-830(8) provides, in relevant part:

A person commits theft if the person does any of the

following:

. . . . 

(8) Shoplifting.

(a) A person conceals or takes possession of

 the goods or merchandise of any store or

 retail establishment, with intent to

 defraud.

. . . .

(continued...)

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Here, the State proffered the Receipt as evidence that

the value of the shoplifted merchandise was $882.57 before tax. 

Joseph Rangel (Rangel), an asset protection supervisor for

Macy's, testified that he generated the Receipt at a register at

which he scanned the items taken by Beaty. Rangel testified that

he received training on how to use Macy's cash registers, and

Rangel testified he made sure that any markdowns or discounts

were accounted for when he scanned the items, per standard

procedure.6 Rangel also knew that the cash registers were

regularly checked and maintained because he had permitted

technicians into the building to perform maintenance on the cash

registers. 

We conclude Rangel's testimony provided sufficient

foundation for admission of the Receipt. The Circuit Court did

not abuse its discretion in admitting the Receipt, and pursuant

to HRS § 708-830(8), the Receipt constituted prima facie evidence

of the value of the shoplifted items.

(2) Beaty's second point of error alleges that there

was no substantial evidence to support the jury's conclusion that

Beaty concealed or took possession of Macy's merchandise with the

intent of injuring Macy's interest in the merchandise. "Intent 

to defraud" is an element of the offense of shoplifting under HRS

§ 708-830(8) and is defined as: "(1) An intent to use deception

5(...continued)

The unaltered price or name tag or other marking on

goods or merchandise, duly identified photographs or

photocopies thereof, or printed register receipts

shall be prima facie evidence of value and ownership

of such goods or merchandise. Photographs of the

goods or merchandise involved, duly identified in

writing by the arresting police officer as accurately

representing such goods or merchandise, shall be

deemed competent evidence of the goods or merchandise

involved and shall be admissible in any proceedings,

hearings, and trials for shoplifting to the same

extent as the goods or merchandise themselves.

6 The record includes photos of the tagged merchandise, which were

entered into evidence without objection. Although the prices on each tag is

not clearly visible in the photos, Rangel testified the tags on the recovered

merchandise were the tags he scanned at the cash register.

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to injure another's interest which has value; or (2) Knowledge by

the defendant that the defendant is facilitating an injury to

another's interest which has value." HRS § 708-800 (2014).

"It is an elementary principle of law that intent may

be proved by circumstantial evidence; that the element of intent

can rarely be shown by direct evidence; and it may be shown by

reasonable inference arising from the circumstances surrounding

the act." State v. Silva, 67 Haw. 581, 587, 698 P.2d 293, 297

(1985) (quoting State v. Yabusaki, 58 Haw. 404, 409, 570 P.2d

844, 847 (1977)).

Here, Rangel observed Beaty select numerous items and

conceal them in a large duffle bag, and Beaty did not dispute at

trial the fact that she took the merchandise. When Beaty was

stopped after she exited Macy's, Beaty told Rangel that Rangel

"could just take [Macy's] stuff back and let her go", from which

the jury could infer that Beaty intended to take possession of

Macy's merchandise but when she was caught, she told Rangel to

take the merchandise back to avoid criminal prosecution. In

addition, the testimony by Rangel about his observations and

video surveillance of Beaty's selection of merchandise was

sufficient to show Beaty was aware that the items she took had

value. Many of those items could reasonably be identified as

having significant retail value (e.g., Beaty's selection of name

brands such as Coach and Michael Kors). Lastly, Rangel observed

Beaty enter the fitting room with a "collection of merchandise

slung over her right arm with the hangers and such, tags." Once

Rangel checked the fitting room after Beaty left it, Rangel saw

that only "a bunch of empty hangers and tags" remained, "no

clothing at all," which sufficiently demonstrates Beaty's

intentional use of deception to injure Macy's interest by

concealing the clothing in her duffle bag while she was in the

fitting room and attempting to leave Macy's without paying for

any of the merchandise. The evidence was sufficient to support

the jury in finding, inter alia, that Beaty intended to injure

the interest of Macy's in the merchandise.

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When an appellate court passes on the legal sufficiency

of evidence to support a conviction, the evidence must be

considered in the strongest light for the prosecution. State v.

Silver, 125 Hawai#i 1, 5, 249 P.3d 1141, 1145 (2011) (quoting

State v. Matavale, 115 Hawai#i 149, 157-58, 166 P.3d 322, 330-31

(2007)). 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. Id.

(quoting Matavale, 115 Hawai#i at 157-58, 166 P.3d at 330-31.) 

"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. Id. (quoting State v. Batson,

73 Haw. 236, 248-49, 831 P.2d 924, 931 (1992) (brackets

omitted)). Here, the jury's conclusion that Beaty possessed the

requisite state of mind to commit the charged offense was

supported by substantial evidence.

Therefore, IT IS HEREBY ORDERED that the "Judgment of

Conviction and Sentence" entered on January 8, 2019, by the

Circuit Court of the First Circuit, is affirmed.

DATED: Honolulu, Hawai#i, May 29, 2020.

On the briefs:

William H. Jameson, Jr.,

Deputy Public Defender,

for Defendant-Appellant.

Brian R. Vincent, 

Deputy Prosecuting Attorney, 

for Plaintiff-Appellee.

/S/ Lisa M. Ginoza

Chief Judge

/s/ Derrick H.M. Chan

Associate Judge

/s/ Keith K. Hiraoka

Associate Judge

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