IN THE INTERMEDIATE COURT OF APPEALS OF THE STATE OF HAWAII
May 15, 2013
STATE OF HAWAII, PLAINTIFF-APPELLEE,
BLADESIN-ISAIAH K. BAILEY, DEFENDANT-APPELLANT
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT (CRIMINAL NO. 10-1-1061)
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER
SUMMARY DISPOSITION ORDER
(By: Nakamura, C.J., Foley and Reifurth, JJ.)
Defendant-Appellant Bladesin-Isaiah K. Bailey ("Bailey") appeals from the Judgment of Conviction and Sentence, filed on March 19, 2012, in the Circuit Court of the First Circuit ("Circuit Court").*fn1 After a jury trial, the Circuit Court entered judgment against Bailey for one count of Robbery in the Second Degree, in violation of Hawaii Revised Statutes ("HRS") § 708-841.*fn2 Bailey was sentenced as a "youthful offender" to five years imprisonment to run consecutively with his sentence in another case, with credit for time served.
On appeal, Bailey argues that (1) the Circuit Court erred by denying Bailey's motion for judgment of acquittal, and (2) there was not substantial evidence to support his conviction. 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 Bailey's points of error as follows:
(1) Bailey waived his right to argue that denial of his motion for judgment of acquittal was in error. A defendant waives such right by presenting evidence after the close of the State's case. State v. Pudiquet, 82 Hawaii 419, 423, 922 P.2d 1032, 1036 (1996). Bailey presented evidence in his defense. He has waived his right to now argue error.
(2) Bailey's challenge to the sufficiency of the evidence is without merit. For Bailey to prevail here, there must have been no substantial evidence that, in the course of committing theft, he, or an accomplice for whose acts he is liable, *fn3 either:
use[d] force against the person of anyone present with the intent to overcome that person's physical resistance or physical power of resistance [or] threaten[ed] the imminent use of force against the person of anyone who is present with intent to compel acquiescence to the taking of or escaping with the property.
HAW. REV. STAT. §§ 702-222, 708-841. Considering the evidence in the light most favorable to the State, see State v. Richie, 88 Hawaii 19, 33, 960 P.2d 1227, 1241 (1998), we conclude that there was substantial evidence to support Bailey's conviction. The jury heard testimony from the complainant, Bailey, and other witnesses present at the scene. The complainant and other witnesses testified that Bailey confronted the complainant, challenged him to fight, punched him, grabbed him, and placed him in a choke hold. There was also testimony that, while Bailey had the complainant in a choke hold and held him down, Bailey yelled to his companions to search the complainant's pockets, whereupon one of the companions removed and kept the complainant's cell phone; at that point, Bailey released the complainant.*fn4 On these facts, a person of reasonable caution could conclude that Bailey acted with the intent of dispossessing complainant of his belongings and did so forcibly. See State v. Grace, 107 Hawaii 133, 139, 111 P.3d 28, 34 (App. 2005).*fn5
IT IS HEREBY ORDERED that the March 19, 2012 Judgment of Conviction and Sentence, filed in the Circuit Court of the First Circuit, is affirmed.
Chief Judge Assoicate Judge Associate Judge