NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT (CRIMINAL NO. 11-1-0153)
Phyllis J. Hironaka Deputy Public Defender for Defendant-Appellant.
Donn Fudo Deputy Prosecuting Attorney, City and County of Honolulu for Plaintiff-Appellee.
Foley, Presiding J., Fujise and Leonard, JJ.
SUMMARY DISPOSITION ORDER
Defendant-Appellant Asibaya Young appeals from the September 26, 2012 "Judgment of Conviction and Sentence" entered in the Circuit Court of the First Circuit (circuit court). Young was convicted of attempted sexual assault in the first degree pursuant to Hawaii Revised Statutes (HRS) §§ 705-500 (1993) and 707-730(1)(a) (Supp. 2012) and robbery in the second degree pursuant to HRS § 708-841(1)(a) (Supp. 2012). On appeal Young contends there was insufficient evidence identifying him as complaining witness's (CW) assailant, and therefore the circuit court erred in denying his motion for judgment of acquittal and the jury wrongfully convicted him of attempted sexual assault and robbery.
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 Young's appeal is without merit.
[E]vidence adduced in the trial court must be considered in the strongest light for the prosecution when the appellate court passes on the legal sufficiency of such evidence to support a conviction; the same standard applies whether the case was before a judge or jury. The test on appeal is not whether guilt is established beyond a reasonable doubt, but whether there was substantial evidence to support the conclusion of the trier of fact.
State v. Richie, 88 Hawai'i 19, 33, 960 P.2d 1227, 1241 (1998) (quoting State v. Quitog, 85 Hawai'i 128, 145, 938 P.2d 559, 576 (1997)). "'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." Richie, 88 Hawai'i at 33, 960 P.2d at 1241 (internal quotation marks and citation omitted).
The standard to be applied by the trial court in ruling upon a motion for a judgment of acquittal is 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, a reasonable mind might fairly conclude guilt beyond a reasonable doubt. An appellate court employs the same standard of review.
State v. Keawe, 107 Hawai'i 1, 4, 108 P.3d 304, 307 (2005) (brackets omitted) (quoting State v. Pone, 78 Hawai'i 262, 265, 892 P.2d 455, 458 (1995)) .
State v. Bayly, 118 Hawai'i 1, 6, 185 P.3d 186, 191 (2008).
The testimonies of the witnesses described the physical appearance of CW's attacker. CW said he was:
Kind of stocky build; maybe, like, 190 pounds to 200 pounds; somewhere between 5-9 and 5-11; dark-skinned African American. He had a T-shirt — I'm fairly certain it was white [she "thought it had" a ...