NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER

NO. CAAP-20-0000440

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

STATE OF HAWAI#I, Plaintiff-Appellee, v.

RICHARD A. RICARD, Defendant-Appellant

APPEAL FROM THE DISTRICT COURT OF THE THIRD CIRCUIT

KONA DIVISION

(CASE NO. 3DCW-19-0001168)

SUMMARY DISPOSITION ORDER

(By: Leonard, Presiding Judge, and Hiraoka and Wadsworth, JJ.)

Defendant-Appellant Richard A. Ricard (Ricard) appeals

from the Judgment and Notice of Entry of Judgment (Judgment),

entered on June 4, 2020, in the District Court of the Third

Circuit, Kona Division (District Court).1/ Following a bench

trial, Ricard was convicted of Theft in the Fourth Degree, in

violation of Hawaii Revised Statutes (HRS) §§ 708-830(1) (2014)

and 708-833(1) (Supp. 2017).2/ The charge stemmed from an

1/ On July 6, 2020, the District Court entered an Amended Judgment

and Notice of Entry of Judgment (Amended Judgment), which did not alter the

Judgment in any material and substantial way. 

The Honorable Margaret K. Masunaga presided over the bench trial

and entered the Judgment. The Honorable Joseph P. Florendo, Jr. entered the

Amended Judgment.

2/ HRS § 708-830(1) provides:

Theft. A person commits theft if the person does any

of the following:

(1) Obtains or exerts unauthorized control over

property. A person obtains or exerts

unauthorized control over the property of

Electronically Filed

Intermediate Court of Appeals

CAAP-20-0000440

26-MAY-2022

07:46 AM

Dkt. 56 SO
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER

incident in which Ricard allegedly picked mangos from a tree

growing on property owned by complaining witness Robert Hammond

(Hammond). 

On appeal, Ricard raises a single point of error,

contending that his conviction was not supported by substantial

evidence that he intended to deprive Hammond of the mangos. 

After reviewing the record on appeal and the relevant

legal authorities, and giving due consideration to the issues

raised and the arguments advanced by the parties, we resolve

Ricard's contention as follows and affirm.

We review the sufficiency of the evidence to support a

conviction 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 same standard applies whether the

case was before a judge or a jury. 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. . . . 

"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. 

And as trier of fact, the trial judge is free to make

all reasonable and rational inferences under the facts

in evidence, including circumstantial evidence.

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

330-31 (2007) (quoting State v. Batson, 73 Haw. 236, 248-49, 831

P.2d 924, 931 (1992)).

In order to convict Ricard for Theft in the Fourth

Degree, the State was required to prove that Ricard obtained or

exerted unauthorized control over Hammond's property with the

intent to deprive him of that property, HRS § 708-830(1), and

that the property had a value up to $250.00, HRS § 708-833(1).

another with intent to deprive the other of the

property.

HRS § 708-833(1) provides:

Theft in the fourth degree. (1) A person commits the

offense of theft in the fourth degree if the person commits

theft of property or services of any value not in excess of

$250.

2
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER

At trial, Hammond's neighbor William F. Mielcke

(Mielcke) testified that on the morning of September 11, 2018, he

saw Ricard "standing on the back of his truck, uh, picking, uh,

mangos from . . . Hammond's mango tree[,]" while the truck was

parked "on the roadway and . . . partially on the road

right-of-way on the makai side of the road." Mielcke identified

Ricard in court. Mielcke described Hammond's mango tree as on

Hammond's property on the makai side of the street. Mielcke

testified that Ricard was in the back of a truck with a "picker"

that was "a long pole with like a claw on the end"; part of the

mango tree "stretche[d] over a bit to the street area"; and

Ricard "was picking mangos from the interior of the tree" in such

a way that Ricard broke the plane of Hammond's property and

reached over a stone wall inside of Hammond's property line. 

 Hammond identified State's Exhibit 6 as a photograph of

the mango tree on his property. He testified that the trunk of

the tree is within his property line but that branches "hang

out." Hammond identified Ricard in court and testified that he

had not given Ricard permission to pick mangos from the tree. 

Hammond estimated the value of a mango from his tree to be $2.00. 

Ricard identified Defense Exhibits A and C as

photographs of the mango tree and surrounding area. He testified

that the exhibits showed "[his] truck parked under the tree as it

was on the day . . . this incident happened. So it's the mango

tree going over the street and my truck sitting in the

approximate position where it was that day." Ricard further

testified that he used "a picker on the end of an eight foot

dowel" that was not long enough to reach the center of the tree. 

He described how he picked mangoes "[r]ight above my truck, that

hangs over the street," while standing in the back of his truck. 

In response to the question – "Did you at anytime pick mangoes

from the center of the tree?" – Ricard stated, "There are no

mangoes in the center of the tree. . . . Cause mangoes grow on

the ends of the branches and that's where they are." Ricard also

testified that he and his wife had been members of the

neighborhood board; the board had been involved in a civil

lawsuit in which Hammond and Mielcke had sued the board; and when

3
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER

the board was sued, Ricard's wife was a board member. 

Following testimony3/ and closing arguments, the

District court made the following findings (among others) and

ruling:

And Mr. Mielcke testified that defendant Mr. Ricard

was in the truck bed with a picker, a long pole with a claw

at the end that stretches over to the street. And appeared

to be picking within reaching into the tree. And Mr.

Mielcke testified that defendant Mr. Ricard was extending

within the boundary of the owner of the tree Colonel

Hammond. . . . Court finds [Mr.] Mielcke to be a credible

witness. 

. . . . 

Court also heard the testimony of Defendant Richard

Ricard regarding being at the same subdivision for 17 years. 

And he admitted to picking the mangoes from the tree,

subject tree owned by Colonel Hammond. And Defendant also

testified that he picked four mangoes that day on

September 11, 2018. 

And based on the testimony of the witnesses, the

record and file in this case, and the Hawaii Revised

Statutes Section 708-833(1), Theft in the Fourth Degree,

Court finds the State of Hawaii has proved its case by proof

beyond a reasonable doubt and finds the Defendant guilty as

charged.

Ricard contends there was no substantial evidence that

he intended to deprive Hammond of the mangos, because the

testimony of the State's witnesses "was biased and contradicted

by the objective photographic evidence." 

We have consistently held that since intent can rarely be

proved by direct evidence, proof of circumstantial evidence

and reasonable inferences arising from circumstances

surrounding the act is sufficient to establish the requisite

intent. Thus, the mind of an alleged offender may be read

from his acts, conduct, and inferences fairly drawn from all

of the circumstances. 

State v. Calaycay, 145 Hawai#i 186, 200, 449 P.3d 1184, 1198

(2019) (quoting State v. Kiese, 126 Hawai#i 494, 502-03, 273 P.3d

1180, 1188-89 (2012)).

Here, Mielcke testified that he saw Ricard picking

mangos from the interior of the tree on Hammond's property, in

such a way that Ricard broke the plane of Hammond's property and

reached over a stone wall inside of Hammond's property line. 

3/ Those testifying at trial included Mielcke, Hammond, Hawai#i

County Police Officer Dustin Chaves, and Ricard.

4
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER

The District Court found Mielcke's testimony credible. 

Moreover, Ricard's photographic evidence was dependent upon his

testimony that the photographs, which he took sometime after the

incident, accurately represented where his truck was parked on

the day of the incident while he was picking the mangos. "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 v.

Sprattling, 99 Hawai#i 312, 317, 55 P.3d 276, 281 (2002)

(brackets omitted) (quoting State v. Sua, 92 Hawai#i 61, 69, 987

P.2d 959, 967 (1999)). 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 797,

812 (1996). 

Viewing the evidence in the strongest light for the

prosecution, we conclude that substantial evidence supports the

reasonable inference that Ricard acted with the intent to deprive

Hammond of his property. Accordingly, the evidence was

sufficient to support Ricard's conviction for Theft in the Fourth

Degree.

For these reasons, the June 4, 2020 Judgment and Notice

of Entry of Judgment and the July 6, 2020 Amended Judgment and

Notice of Entry of Judgment, entered in the District Court of the

Third Circuit, Kona Division, are affirmed.

DATED: Honolulu, Hawai#i, May 26, 2022.

On the briefs:

Ashlyn L. Whitbeck,

Deputy Public Defender,

for Defendant-Appellant.

Stephen L. Frye,

Deputy Prosecuting Attorney,

County of Hawai#i,

for Plaintiff-Appellee.

/s/ Katherine G. Leonard

Presiding Judge

/s/ Keith K. Hiraoka

Associate Judge

/s/ Clyde J. Wadsworth

Associate Judge

5