NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER
APPEAL FROM THE DISTRICT COURT OF THE THIRD CIRCUIT PUNA DIVISION (CR. NO. 3P109-00106)
Lars Robert Isaacson for Defendant-Appellant
Gregory E. Gimenez Deputy Prosecuting Attorney County of Hawai'i for Plaintiff-Appellee
Nakamura, Chief Judge, Leonard and Ginoza, JJ.
SUMMARY DISPOSITION ORDER
Defendant-Appellant Steven Baptista (Baptista) appeals from the Judgment of Conviction & Sentence entered on November 29, 2011, in the District Court of the Third Circuit, Puna Division (District Court).
Baptista was found guilty of Sexual Assault in the Fourth Degree, in violation of Hawaii Revised Statutes (HRS) § 707-733(1) (a) (1993) .
On appeal, Baptista contends that: (1) there is insufficient evidence to support his conviction; (2) the unavailability of several transcripts mandate reversal of his conviction; (3) the District Court erred by allowing the State to call a rebuttal witness; and (4) he received ineffective assistance of trial counsel.
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 Baptista's points of error as follows:
(1) Baptista argues that there is insufficient evidence to support his conviction because the State failed to establish the requisite mens rea and/or that the complaining witness did not consent to Baptista's alleged touching of her.
The test for sufficiency of the evidence is whether there is "substantial evidence" for each material element of the offense. State v. Matavale, 115 Hawai'i 149, 157-58, 166 P.3d 322, 330-31 (2007) (quoting State v. Batson, 73 Haw. 236, 248-49, 831 P.2d 924, 931 (1992)). Substantial evidence is "credible evidence which is of sufficient quality and probative value to enable a person of reasonable caution to support a conclusion." Id. at 158, 166 P.3d at 331 (quoting Batson, 73 Haw. at 248-49, 831 P.2d at 931) (brackets omitted). The test on appeal is not whether guilt has been established beyond a reasonable doubt. State v. Bayly, 118 Hawai'i 1, 6, 185 P.3d 186, 191 (2008).
In a bench trial, the trial judge is entitled "to make all reasonable and rational inferences under the facts in evidence, including circumstantial evidence." Batson, 73 Haw. at 249, 831 P.2d at 931. It is not the role of the appellate court to weigh credibility or resolve conflicting evidence. State v. Eastman, 81 Hawai'i 131, 139, 913 P.2d 57, 65 (1996); accord State v. Ferm, 94 Hawai'i 17, 27, 7 P.3d 193, 203 (App. 2000); State v. Wallace, 80 Hawai'i 382, 418, 910 P.2d 695, 731 (1996). In considering sufficiency, we must view the evidence in the light most favorable to the prosecution. Bayly, 118 Hawai'i at 6, 185 P.3d at 191. Here, we must determine whether substantial evidence supports the elements of fourth-degree sexual assault.
§ 707-733. Sexual assault in the fourth degree. (1) A person commits the offense of sexual assault in the fourth degree if:
(a) The person knowingly subjects another person to sexual contact by compulsion or causes another person to have sexual ...