NOT
FOR PUBLICATION
CONCURRING AND DISSENTING
OPINION BY LIM, J.
I believe there was
sufficient evidence adduced at trial to support Defendant's conviction
of the September 20, 2001 criminal property damage charge. The
absence of the videotape from the evidence notwithstanding, (1) there
was Sue Alana's testimony that she found a rock in the bed of her
husband's truck and
observed corresponding damage to the truck; (2) there was Defendant's
admission that the videotape showed him throwing an object, albeit in a
direction away
from the truck; and (3) there was abundant evidence of the animus
between the neighbors and Defendant's modus operandi. Hence,
taking the evidence in the
light most favorable to the State, and having due regard for the
prerogative of the trier of fact to believe or disbelieve any witness
-- including Defendant -- in
whole or in part, there was substantial evidence that Defendant
intentionally threw a rock at the truck and damaged it. State v. Aki, 102 Hawai‘i
457, 460,
77 P.3d 948, 951 (App. 2003).
Under the proper
standard of review, supra,
it matters not that Defendant's self-serving statement about the
direction of his throw escaped rebuttal by the State,
for the district court could not be bound by that particular state of
the evidence. We, however, are bound by the district court's evaluation
of that evidence. Aki,
102 Hawai‘i at 460, 77 P.3d at 951. I therefore
respectfully dissent from the majority's reasoning and order reversing
Defendant's conviction of the
September 20, 2001 criminal property damage charge.
I otherwise agree
with the majority's reasoning and disposition.
Associate Judge