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State v. Aliwis

Intermediate Court of Appeals of Hawaii

August 13, 2013

STATE OF HAWAI'I, Plaintiff-Appellee,
v.
MARSIAN ALIWIS, Defendant-Appellant

NOT FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT (CRIMINAL NO. 10-1-0221)

Harrison L. Kiehm for Defendant-Appellant.

Donn Fudo Deputy Prosecuting Attorney, City and County of Honolulu for Plaintiff-Appellee.

Nakamura, C.J., Foley and Reifurth, JJ.

SUMMARY DISPOSITION ORDER

Defendant-Appellant Marsian Aliwis appeals from a February 27, 2012 Judgment of Conviction and Sentence entered in the Circuit Court of the First Circuit[1] for two counts of assault in the first degree pursuant to Hawaii Revised Statutes (HRS) 707-710 (1993).

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 conclude this appeal is without merit.

Aliwis contends there was insufficient evidence that he caused "serious bodily injury" to the victim in each count and that he did so intentionally or knowingly, "'Serious bodily injury' means bodily injury which creates a substantial risk of death or which causes serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ." HRS g 707-700 (1993),

The standard of review for sufficiency of the evidence is well established; namely, whether, upon the evidence viewed in the light most favorable to the prosecution and in full recognition of the province of the trier of fact, the evidence is sufficient to support a prima facie case so that a reasonable mind might fairly conclude guilt beyond a reasonable doubt. Sufficient evidence to support a prima facie case requires substantial evidence as to every material element of the offense charged. Substantial evidence as to every material element of the offense charged is credible evidence which is of sufficient quality and probative value to enable a person of reasonable caution to support a conclusion. Under such a review, we give full play to the right of the fact finder to determine credibility, weigh the evidence, and draw justifiable inferences of fact.

State v. Grace, 107 Hawai'i 133, 139, 111 P.3d 28, 34 (App. 2005) (block quote format changed) (quoting State v. Ferrer, 95 Hawai'i 409, 422, 23 P.3d 744, 757 (App. 2001)).

The complaining witness in count 1 (CW 1), testified that while talking on his cell phone he "noticed [Aliwis] arguing with his wife." "[A]s soon as I pressed the hang up button, " CW 1 testified that he was stabbed in the shoulder. " [I]t felt like a thud, like a punch" followed by "sharp pain." CW 1 turned and punched Aliwis, after which he remembered "going to the ground and [Aliwis] stabbing me in [my left] leg . . . [on the] outer thigh closer to the knee." CW 1 "remember[ed] looking down at [his] leg and trying to hold [his] pants together to keep [his] leg, together so [he would not] bleed as much." CW 1 added, "I remember I could stick my hand in it . . .it was pretty deep."

After leaving the hospital, CW 1 suffered weakness to his left leg and "couldn't walk for about two months without the support of [his] crutches." With regard to the injury to his right shoulder, CW 1 said the impairment lasted a "month to a month and a half." When the deputy prosecutor asked "[d]id you experience any weakness in your right shoulder, right arm following this incident?" CW 1 stated:

Urn yeah. Like I couldn't like maneuver it as good. ... I could move my forearm and down, but -- like my upper arm I couldn't like move it around too much. . . . Lift it, rotate it, move it back and forth, whatever.

CW 1 said he has a "permanent scar" on his shoulder shaped like a "crescent moon" and a scar on his left thigh. He displayed both ...


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