IN THE INTERMEDIATE COURT OF APPEALS OF THE STATE OF HAWAII
January 13, 2012
STATE OF HAWAII, PLAINTIFF-APPELLEE,
SUNG SIK CHOI, DEFENDANT-APPELLANT
APPEAL FROM THE FAMILY COURT OF THE FIRST CIRCUIT (FC-CR. NO. 10-1-1375)
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER
SUMMARY DISPOSITION ORDER
(By: Foley, Presiding J., Leonard and Reifurth, JJ.)
Defendant-Appellant Sung Sik Choi (Choi) appeals from the Judgment of Conviction and Sentence filed on July 21, 2010 in the Family Court of the First Circuit (family court).*fn1 The family court found Choi guilty of Harassment, in violation of Hawaii Revised Statutes (HRS) § 711-1106(1)(a) (Supp. 2010).
On appeal, Choi contends (1) there was insufficient evidence to convict him of Harassment and (2) the family court erred by denying his motion for mistrial because the complaining witness (CW) violated a motion in limine regarding prior bad acts.
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, as well as the relevant statutory and case law, we resolve Choi's points of error as follows:
(1) CW testified that Choi grabbed her arm when she would not let him hold his child. He then pushed CW onto a bed and forcibly took the child. The family court found the testimony of CW to be credible. "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. Stocker, 90 Hawaii 85, 90, 976 P.2d 399, 404 (1999) (internal quotation marks, citation, and brackets omitted) (quoting State v. Lee, 90 Hawaii 130, 134, 976 P.2d 444, 448 (App. 1999)).
"[T]he mind of an alleged offender may be read from his acts, conduct and inferences fairly drawn from all the circumstances." Stocker, 90 Hawaii at 92, 976 P.2d at 406 (internal quotation marks and citation omitted) (quoting State v. Mitsuda, 86 Hawaii 37, 44, 947 P.2d 349, 356 (1997)). Given the circumstantial evidence, it is reasonable to infer that Choi intended to harass, annoy, or alarm CW by striking, shoving, kicking, or otherwise touching CW in an offensive manner or by subjecting CW to offensive physical contact.
(2) The family court did not err by denying Choi's motion for mistrial. CW violated the family court's order granting Choi's motion in limine, which prohibited the introduction of Choi's prior bad acts. Choi based his motion for mistrial on this violation. However, any introduction of prior bad acts was harmless. Choi's case was tried without a jury. When finding Choi guilty of Harassment, the family court did not mention Choi's prior bad act. "[W]here a case is tried without a jury, it is presumed that the presiding judge will have disregarded the incompetent evidence and relied upon that which was competent." State v. Antone, 62 Haw. 346, 355, 615 P.2d 101, 108 (1980). Choi does not point to anything in the record to rebut the presumption that the family court disregarded incompetent evidence.
IT IS HEREBY ORDERED that the Judgment of Conviction and Sentence filed on July 21, 2010 in the Family Court of the First Circuit is affirmed.