State v. Kekaualua ( 1967 )

OPINION OF THE COURT BY

MIZUHA, J.

Defendant was convicted by a jury of assault with intent to rape. He appeals from the judgment of conviction, contending first, that the evidence is insufficient to prove he “intended to have sexual intercourse with the prosecutrix by force and against her will”; and second, that he “was not identified beyond a reasonable doubt to be the person who committed the offense.” Both contentions are without merit.

The complainant testified to the effect she was asleep on her bed when suddenly awakened to find her assailant with his face covered with a pair of her panties sitting on her thighs with his legs on both sides of her body. The assailant had his hands around her throat and was lightly massaging it. As she screamed and struggled with her assailant, the sheet which covered her slipped down and her body, dressed only in a pantie, was exposed. The complainant was menstruating at the time and her pad was soaked through to her pantie, which was bloody. He was crouched over her in a bent position and she was unable to move her arms as they were pinned to the bed. When the sheet slipped down, the assailant moaned and groaned as he looked down on her body and then punched her in the left eye three or four times, saying several times, “shut up, woman.” The assailant had not removed his trousers and complainant was unable to state that he had his zipper down. As complainant continued screaming, he got off the bed, took off the pantie from his face and ran out the rear door.

The complainant wrapped a sheet around her body and ran after her assailant. As she was standing by her mailbox she saw him get into a red car with a black top, which was a convertible. She went back into her home, wrote down the license number which she testified to as “311624,” and then ran to her neighbor’s home for help. She told the neighbor that a man was trying to kill her. As a result of the attack, her neck and the area of her face surrounding her eye were bruised.

Complainant was unable to identify her assailant but could generally describe his physical features. However, she identified the defendant as being the person who had wandered into the basement of her house two or three weeks before the incident, ostensibly looking for the owner of the house for whom he worked several years before. Defendant admitted he owned a red and black Oldsmobile convertible, license number 3H624. The general physical description of the defendant and his car by the complaining witness and her neighbor who saw him leave the residence, together with the testimony of the witnesses who placed a red colored car near the home of the complainant, point to the defendant as the person who committed the offense. A police officer also testified that on the same morning he pursued defendant who was driving away from the complainant’s home at a high rate of speed at a point two miles from said home. After talking to defendant at approximately 8:15 a.m., he returned to routine patrolling. At 8:17 a.m., he received a call in his car to investigate the complaint made by the complainant. Defendant denied being at complainant’s home two or three weeks prior to the incident and testified that he was nowhere near complainant’s residence that morning. However, he did state that no one other than himself had driven his car during the morning of the incident. His alibi was rejected by the jury.

George S. Yuda (Ushijima, Nakamoto and Yuda of counsel) for defendant-appellant. Mamoru Shimokusu, Deputy County Attorney (Yoshito Tanaka, County Attorney, with him on the brief) for plaintiffappellee.

The crime of assault with intent to commit rape requires the prosecution to establish beyond a reasonable doubt that the defendant committed an assault, with the specific intent to have intercourse, and with the specific intent to use sufficient force to overcome the woman’s will. The jury’s finding of the requisite intent and force is clearly reflected in its verdict. See Territory v. Noguchi, 38 Haw. 350, 353; State v. Dizon, 47 Haw. 444, 465, 390 P.2d 759, 771.

The jury is the sole judge of the credibility of the witnesses or the weight of the evidence. State v. Carvelo, 45 Haw. 16, 33, 361 P.2d 45, 54. When a jury verdict involves conflicting evidence and depends on the determination of credibility of witnesses or the weight of evidence, the test on appeal is whether there is substantial evidence to support the verdict of the jury. Territory v. Ebarra, 39 Haw. 488, 492; State v. Carvelo, supra at 33; State v. Tamanaha, 46 Haw. 245, 251, 377 P.2d 688, 692; State v. Arena, 46 Haw. 315, 324, 379 P.2d 594, 601; State v. Cummings, 49 Haw. 522, 533, 423 P.2d 438, 445. There is substantial evidence on the record to warrant the verdict against the defendant.

Judgment affirmed.