State v. Amii ( 2021 )

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
09-JUN-2021
08:22 AM
Dkt. 53 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
STATE OF HAWAI#I, Plaintiff-Appellee,
v.
SON KYONG AMII, Defendant-Appellant
APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT
HONOLULU DIVISION
(CASE NO. 1DCW-XX-XXXXXXX)
SUMMARY DISPOSITION ORDER
(By: Ginoza, Chief Judge, Hiraoka and Wadsworth, JJ.)
Defendant-Appellant Son Kyong Amii (Amii) appeals from
the Notice of Entry of Judgment and/or Order, filed on December
27, 2019, in the District Court of the First Circuit, Honolulu
Division (District Court).1
Amii was convicted of Attempted Assault in the Third
Degree, in violation of Hawaii Revised Statutes (HRS) §§ 705-
500(1)(b) (2014) and 707-712(1)(a) (2014),2 and Terroristic
1
The Honorable Florence T. Nakakuni presided.
2
HRS § 705-500(1) states in part:
§705-500 Criminal attempt. (1) A person is
guilty of an attempt to commit a crime if the person:
. . . .
(b) Intentionally engages in conduct which,
(continued...)
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Threatening in the Second Degree, in violation of HRS § 707-
717(1) (2014).3
On appeal, Amii contends there was insufficient
evidence to convict her of Attempted Assault in the Third Degree,
specifically that she did not commit a substantial step in a
course of conduct intended to cause bodily injury4 which
constituted Assault in the Third Degree, and that the District
Court made inconsistent findings. Amii does not appeal her
conviction for Terroristic Threatening in the Second Degree.
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
resolve Amii's point of error as follows:
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(...continued)
under the circumstances as the person
believes them to be, constitutes a
substantial step in a course of conduct
intended to culminate in the person's
commission of the crime.
. . . .
(3) Conduct shall not be considered a
substantial step under this section unless it is
strongly corroborative of the defendant's criminal
intent.
HRS § 707-712(1)(a) states:
§707-712 Assault in the third degree. (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[.]
3
HRS § 707-717(1) states:
[§707-717] Terroristic threatening in the
second degree. (1) A person commits the offense of
terroristic threatening in the second degree if the
person commits terroristic threatening other than as
provided in section 707-716.
4
"Bodily injury" means physical pain, illness, or any impairment of
physical condition. HRS § 707-700 (2014).
2
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
When the evidence adduced at trial is considered in the
strongest light for the prosecution, State v. Matavale, 115
Hawai#i 149, 157-58, 166 P.3d 322, 330-31 (2007), there is
substantial evidence to support Amii's conviction for Attempted
Assault in the Third Degree, in other words showing she
intentionally engaged in conduct constituting a substantial step
in a course of conduct intended to culminate in the commission of
Assault in the Third Degree. Further, the District Court did not
make inconsistent findings.
Amii inaccurately portrays the District Court's
findings, and we further reject her contention that by throwing a
potted plant at the complaining witness and striking the bottom
right corner of a screen door, the proper inference was that Amii
intended to commit property damage and not Assault in the Third
Degree. The District Court stated the complaining witness's
screen door was closed when the pot Amii threw hit it and "it
ended up in the corner of the screen door because [the
complaining witness] had closed that screen door and had
retreated." However, the District Court previously noted the
complaining witness had peeked out of the door to look outside,
saw Amii charge her with a pot and throw it at her.
During her direct testimony, the complaining witness
testified that she had already called the police when she peeked
outside and opened her screen door, when at that moment Amii
charged at her, was swearing and threatening her, took a big
plant that was near her door and that Amii "was trying to throw
the plant right into me." The complaining witness demonstrated
that Amii threw the potted plant at her using both hands cocked
over Amii's right shoulder and then making a forward motion. The
complaining witness further testified: "So when [Amii] threw the
plant, actually I closed the door. It's a screen door. And I
jumped out of the door. I was still on the phone with the
police. Plant landed in the corner outside of my door."
The District Court found the complaining witness
credible. The District Court also noted, inter alia, the
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NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
complaining witness's testimony that Amii told her "I'll kill
you," that Amii had used swear words and acted aggressively
toward the complaining witness, that Amii had made eye contact
with the complaining witness and threw the plant aiming at the
complaining witness. The District Court stated: "To me that
actual act of picking up -- of throwing the pot in the direction
of –- after locking eyes with [the complaining witness]
constituted that attempt."
As noted, in reviewing the sufficiency of the evidence
for conviction, we consider the evidence in the strongest light
for the prosecution. Further, "given 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." State v.
Stocker, 90 Hawai#i 85, 92, 976 P.2d 399, 406 (1999) (brackets in
original). "Thus, the mind of an alleged offender may be read
from his acts, conduct, and inferences fairly drawn from all the
circumstances." Id. (citation omitted).
From Amii's acts, conduct, and the inferences fairly
drawn from all the circumstances, Amii intended to cause bodily
injury to the complaining witness by throwing a potted plant at
the complaining witness from a close distance. The potted plant
weighed approximately four pounds, which could cause bodily
injury if it had made contact with the complaining witness. The
complaining witness stated Amii made eye contact with her prior
to throwing the pot, aimed for her, and was not attempting to hit
anything else. Thus, even though the potted plant did not make
contact with the complaining witness, there is sufficient
evidence to support a finding that Amii intended to cause bodily
injury to the complaining witness by throwing the potted plant at
her under the circumstances of this case. Amii's picking up of
the potted plant and throwing it at the complaining witness was
strongly corroborative of her intent to commit Assault in the
Third Degree.
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Therefore, IT IS HEREBY ORDERED that the Notice of
Entry of Judgment and/or Order, filed on December 27, 2019, in
the District Court of the First Circuit, Honolulu Division, is
affirmed.
DATED: Honolulu, Hawai#i, June 9, 2021.
On the briefs: /s/ Lisa M. Ginoza
Chief Judge
William H. Jameson, Jr.
Deputy Public Defender, /s/ Keith K. Hiraoka
for Defendant-Appellant. Associate Judge
Brian R. Vincent, /s/ Clyde J. Wadsworth
Deputy Prosecuting Attorney, Associate Judge
for Plaintiff-Appellee.
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