NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
26-MAY-2022
07:46 AM
Dkt. 56 SO
NO. CAAP-XX-XXXXXXX
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-XX-XXXXXXX)
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
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER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.
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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
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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.
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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:
/s/ Katherine G. Leonard
Ashlyn L. Whitbeck, Presiding Judge
Deputy Public Defender,
for Defendant-Appellant.
/s/ Keith K. Hiraoka
Stephen L. Frye, Associate Judge
Deputy Prosecuting Attorney,
County of Hawai#i,
for Plaintiff-Appellee. /s/ Clyde J. Wadsworth
Associate Judge
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