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NO. CAAP-20-0000097

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-19-0000763)

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...)

Electronically Filed

Intermediate Court of Appeals

CAAP-20-0000097

25-JUN-2021

08:10 AM

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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-theevidence 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[.]"

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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

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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...)

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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-14-0001361, 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.

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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:

Ashlyn L. Whitbeck,

Deputy Public Defender,

for Defendant-Appellant. 

Stephen L. Frye, 

Deputy Prosecuting Attorney,

for Plaintiff-Appellee.

/s/ Lisa M. Ginoza

Chief Judge

/s/ Keith K. Hiraoka

Associate Judge

/s/ Clyde J. Wadsworth

Associate Judge

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. 

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