State v. Kinny ( 2020 )

NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
18-DEC-2020
07:53 AM
Dkt. 55 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
STATE OF HAWAI#I, Plaintiff-Appellee, v.
K.S. KINNY, Defendant-Appellant
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CASE NO. 1PC151000086)
SUMMARY DISPOSITION ORDER
(By: Ginoza, C.J., and Leonard and Wadsworth, JJ.)
Defendant-Appellant K.S. Kinny (Kinny) appeals from the
Judgment of Conviction and Probation Sentence (Judgment), entered
on October 19, 2017, in the Circuit Court of the First Circuit
(Circuit Court).1/ Following a bench trial, Kinny was convicted
of Assault in the Second Degree (Assault 2), in violation of
Hawaii Revised Statutes (HRS) § 707-711(1)(d) (2014).2/
On appeal, Kinny contends: (1) there was insufficient
evidence to support his conviction; and (2) the State failed to
prove beyond a reasonable doubt facts negating Kinny's claim of
1/
The Honorable James H. Ashford presided.
2/
HRS §§ 707-712(1)(d) provides:
(1) A person commits the offense of assault in the
second degree if:
. . . .
(d) The person intentionally or knowingly causes
bodily injury to another with a dangerous
instrument[.]
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER
self-defense.3/
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 affirm the
Judgment for the reasons set forth below.
I. Background
At trial, the complaining witness, Masterino Machuo
(Machuo) testified as follows. On January 18, 2015, at around
8:00 p.m., Machuo was in the parking lot of Kalihi Market,
waiting for his daughter to finish work at the nearby Sunny's
Mart. Machuo was standing outside of his car, which was parked
by the dumpsters, with three friends. He and his friends were
"talking stor[y]" and were not drinking alcohol.
When Machuo first saw Kinny that night, Kinny "was
drinking alcohol . . . he was holding a bottle, you know, the
40." Asked whether he knew Kinny, Machuo testified, "it was a
casual -- I mean, I usually see him around, but not very much I
know." Kinny began walking toward where Machuo and his friends
were standing. When Kinny got within 8-10 feet of Machuo, Kinny
called out to Machuo by name. Machuo told Kinny to leave because
"we know he was under the influence." Kinny "walk[ed] away a
little further" and then looked back and stared at Machuo as
Machuo entered his car.
Machuo and his friends got into Machuo's car, and
Machuo drove toward the parking lot exit. Machuo stopped the car
to wait for traffic before going out onto the road. While Machuo
was waiting, Kinny came up to Machuo's driver's side window,
pulled up his shirt, took out a knife, and stabbed at Machuo
several times through the open window. Machuo tried to move away
and to defend himself from the downward thrust of the knife blade
by flailing his arms in front of him. Machuo's right-hand middle
finger was cut by the blade. Kinny then "ran up the sidewalk,"
and Machuo drove to Sunny's Mart to park and pick up his
3/
Kinny's points of error have been reordered and restated for
clarity.
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daughter. "When the police came on the scene," Kinny and his son
ran toward Kuhio Park Terrace (KPT). After the incident, Machuo
met with police and was taken to Queen's Medical Center where his
hand was treated.
Kinny also testified, as follows. On January 18, 2015,
Kinny was drinking beer on the steps next to Sunny's Mart from
11:00 a.m. until 8:00 p.m. He had "got[ten] two of the big beer
can[s] and . . . was just sipping on them throughout the day."
Eventually, Kinny's son came looking for him and they went down
to Jin's Market to buy phone minutes. At Jin's Market,4/ Kinny
saw Machuo beside his car in the parking lot. Asked whether he
knew Machuo, Kinny testified, "I just heard about him[,]" and
explained that Machuo and Kinny's father were "drinking
companion[s]." Kinny also saw "other Micronesian men at Jin's
Market[,] . . . next to the store." Kinny shook their hands.
According to Kinny, when he looked at Machuo, "[Machuo]
was mad. [Machuo] told [Kinny] not to look at [him] or he's going
to beat [Kinny] up. And [Kinny] just apologized to him." Machuo
called his companions to come with him, and four of them got into
the car with Machuo and his wife.5/ "They started to drive to
the end of the store and they stop[ped,] . . . [a]nd then they .
. . continue[d] to be mad at [Kinny] for looking at [Machuo]."
Kinny testified that "[Machuo] asked his wife to give him his
knife and so he can use it to hurt [Kinny.]" Machuo came out of
the car with the knife and walked toward Machuo and his son.
Kinny testified: "I took out my knife from my pocket, and then I
was blocking it when [Machuo] was trying to cut me with the
knife. And then his friend Leo came out from the back of the car
and separated us." Kinny and his son then walked toward KPT.
Honolulu Police Department (HPD) Officer Gregory Perez
(Officer Perez) testified at trial as follows. He arrived at
Sunny's Mart after 8:00 p.m. on the evening of the incident,
where he observed Machuo bleeding from one of his hands. Officer
4/
It appears that Jin's Market was also known as Kalihi Market.
5/
Machuo and his wife both testified she was not present at the
parking lot that evening.
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Perez noted that Machuo was "[k]inda calm, but surprised" and
that "there was no indication at the time that [Machuo] was
drinking." After speaking with Machuo, Officer Perez called in a
description of Kinny. After Kinny was located (see infra),
Officer Perez took Machuo to KPT for a field showup to identify
Kinny. Machuo was then taken back to Sunny's Mart, where "the
ambulance people took care of [him.]"
HPD Officer Joel Dadoy (Officer Dadoy) also testified,
as follows. After receiving the description of Kinny, Officer
Dadoy located Kinny and his son and followed them in his HPD
vehicle toward a building in KPT. Officer Dadoy then parked his
vehicle and began to follow Kinny and his son on-foot as they
entered the building "through the back side of the lobby area."
Officer Dadoy observed them discard a black object into a trash
can. After discarding the object, Kinny and his son turned back
and headed toward Officer Dadoy, as other officers responded to
the front of the lobby area. Officer Dadoy unholstered his
firearm and instructed Kinny and his son to get on the ground;
both complied. Officer Dadoy testified that the discarded black
object was found in the trash can, and it was a knife. HPD
Officer Brandon Kaholokula, who also responded to the KPT lobby
that evening, testified that he recovered a knife with a black
handle from Kinny's son's hip pocket during a weapon frisk.6/
6/
After closing arguments, the Circuit Court noted:
Dadoy and Kaholokula were inconsistent regarding where the
knife was found. . . . Dadoy initially testified that he got
the – or the knife was gotten -- taken from the trash can,
but then he testified that he himself did not retrieve the
knife. So there -- from that alone, it's clear that he was
-- he had assumed that the knife was retrieved from the
trash can. He testified, I'm confident, not on personal
knowledge, but based upon an assumption which was basically
refuted by both Kaholokula and the defendant in that
Kaholokula said he frisked the son, found the knife in the
hip pocket, and the defendant agreed that the knife[,] which
is Exhibit 9, I believe, is indeed his knife. So I am aware
of what I think Dadoy was -- is incorrect testimony based on
lack of personal knowledge, but I candidly don't think that
that particular detail is particularly material to this.
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II. Discussion
Kinny contends there was insufficient evidence to
support his conviction for Assault 2. Specifically, he argues
"[t]here was insufficient evidence to show that Kinny intended to
assault Machuo[,]" because "Kinny maintained that it was Machuo
who was handed a knife who then came at Kinny." Kinny similarly
argues that the State failed to prove beyond a reasonable doubt
that Kinny did not act in self-defense, where Kinny testified
that "Machuo pulled a knife on him," "[f]rom Kinny's perspective
the threat was real that he faced imminent bodily injury[,]" and
thus the State failed to prove that Kinny did not have the
requisite belief that deadly force was necessary.
Sufficient evidence to support a conviction requires
substantial evidence as to every material element of the offense
charged. State v. Grace, 107 Hawai#i 133, 139, 111 P.3d 28, 34
(App. 2005) (quoting State v. Ferrer, 95 Hawai#i 409, 422, 23
P.3d 744, 757 (App. 2001)). Substantial evidence is "credible
evidence which is of sufficient quality and probative value to
enable a person of reasonable caution to support a conclusion."
Id. The evidence must be "viewed in the light most favorable to
the prosecution and in full recognition of the province of the
trier of fact[,]" who must "determine credibility, weigh the
evidence, and draw justifiable inferences of fact." Id.To establish that Kinny committed Assault 2, the State
was required to prove beyond a reasonable doubt that Kinny
intentionally or knowingly caused bodily injury to Machuo with a
dangerous instrument. See HRS §§ 707-711(d). "'Bodily injury'
means physical pain, illness, or any impairment of physical
condition." HRS § 707-700 (2014). "Dangerous instrument" means,
among other things, any "weapon, device, [or] instrument, . . .
which in the manner it is used or is intended to be used is known
to be capable of producing death or serious bodily injury." Id.
Here, based on the trial testimony of Machuo and Kinny,
and the knife admitted into evidence, the Circuit Court found
that Kinny had a knife and wielded the knife during the
altercation with Machuo. The court further found, based on the
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photographic evidence, Machuo's testimony, and "common sense,"
that Machuo's middle finger was cut by Kinny's knife during the
altercation, which caused the finger to bleed. The court
concluded that Kinny caused bodily injury to Machuo by inflicting
this wound, and that the knife was a deadly weapon "in the manner
that it was used and its capacity to inflict deadly harm." The
court further found that Kinny "acted intentionally in all
aspects of what he's charged with." The Circuit Court thus ruled
that the State had proved beyond a reasonable doubt that Kinny
intended to and did cause bodily injury to Machuo with a
dangerous instrument.
As to Kinny's claim of self-defense, the Circuit Court
concluded:
[T]o cut to the chase, when I consider the defendant's
intoxication, when I consider inconsistencies in a variety
of testimony, when I consider the relative height and arm's
reach of the two combatants, when I consider the length of
the alleged respective blades, one of which is in evidence,
the other one which was described, in practical effect, to
be a 12-inch blade with a handle, I candidly find that it
was inconceivable that the complaining witness would be cut
on the hand in this knife scrimmage without any injury
whatsoever to the defendant[,] that defies common sense,
particularly given the circumstances of the case, including
the defendant's intoxication. So for those reasons as well
as other reasons, I do find defendant's version of events to
be incredible. I reject it. I reject the self-defense
argument.
Upon review of the record, we conclude there was
substantial evidence, including Machuo's testimony and the
physical evidence, that Kinny cut Machuo with a dangerous
instrument, causing him bodily injury. We further conclude that
based on Kinny's acts and the inferences fairly drawn from all of
the circumstances, the Circuit Court could reasonably have
inferred that Kinny intended his conduct to cause bodily injury
to Machuo. See State v. Stocker, 90 Hawai#i 85, 92, 976 P.2d
399, 406 (1999) (quoting State v Mitsuda, 86 Hawai#i 37, 44, 947
P.2d 349, 356 (1997)).
Although Kinny claims that Machuo was the first
aggressor and came at him with a knife, "[t]he prosecution
disproves a justification defense beyond a reasonable doubt when
the trial court believes the prosecution's case and disbelieves
the defendant's case." State v. Jhun, 83 Hawai#i 472, 483, 927
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P.2d 1355, 1366 (1996) (citing State v. Gabrillo, 10 Haw. App.
448, 456-57, 877 P.2d 891, 895 (1994)). Here, the Circuit Court
found Kinny's version of events to be incredible based on the
several evidentiary considerations it identified. We decline to
pass upon issues regarding the credibility of witnesses and the
weight of the evidence, which are within the province of the
trier of fact – here, the Circuit Court. See Stocker, 90 Hawai#i
at 90, 976 P.2d at 404 (quoting State v. Lee, 90 Hawai#i 130,
134, 976 P.2d 444, 448 (App. 1999)). We thus conclude there was
sufficient evidence to negate Kinny's claim of self-defense.
Accordingly, on this record, the evidence was
sufficient to support Kinny's conviction for Assault 2.
III. Conclusion
For these reasons, we affirm the Judgment of Conviction
and Probation Sentence, entered on October 19, 2017, in the
Circuit Court of the First Circuit.
DATED: Honolulu, Hawai#i, December 18, 2020.
On the briefs: /s/ Lisa M. Ginoza
Chief Judge
Richard D. Gronna
for Defendant-Appellant.
/s/ Katherine G. Leonard
Sonja P. McCullen, Associate Judge
Deputy Prosecuting Attorney,
City & County of Honolulu,
for Plaintiff-Appellee. /s/ Clyde J. Wadsworth
Associate Judge
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