State v. Ricard
Decision Date | 26 May 2022 |
Docket Number | CAAP-20-0000440 |
Parties | STATE of Hawai‘i, Plaintiff-Appellee, v. Richard A. RICARD, Defendant-Appellant |
Court | Hawaii Court of Appeals |
On the briefs:
Ashlyn L. Whitbeck, Deputy Public Defender, for Defendant-Appellant.
Stephen L. Frye, Deputy Prosecuting Attorney, County of Hawai‘i, for Plaintiff-Appellee.
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Defendant-Appellant Richard A. Ricard (Ricard ) appeals from the Judgment and Notice of Entry of Judgment (Judgment ), entered on June 4, 2020, in the District Court of the Third Circuit, Kona Division (District Court ).1 Following a bench trial, Ricard was convicted of Theft in the Fourth Degree, in violation of Hawaii Revised Statutes (HRS ) §§ 708-830(1) (2014) and 708-833(1) (Supp. 2017).2 The charge stemmed from an incident in which Ricard allegedly picked mangos from a tree growing on property owned by complaining witness Robert Hammond (Hammond ).
On appeal, Ricard raises a single point of error, contending that his conviction was not supported by substantial evidence that he intended to deprive Hammond of the mangos. After reviewing the record on appeal and the relevant legal authorities, and giving due consideration to the issues raised and the arguments advanced by the parties, we resolve Ricard's contention as follows and affirm.
We review the sufficiency of the evidence to support a conviction as follows:
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) ).
In order to convict Ricard for Theft in the Fourth Degree, the State was required to prove that Ricard obtained or exerted unauthorized control over Hammond's property with the intent to deprive him of that property, HRS § 708-830(1), and that the property had a value up to $250.00, HRS § 708-833(1).
At trial, Hammond's neighbor William F. Mielcke (Mielcke ) testified that on the morning of September 11, 2018, he saw Ricard "standing on the back of his truck, uh, picking, uh, mangos from ... Hammond's mango tree[,]" while the truck was parked "on the roadway and ... partially on the road right-of-way on the makai side of the road." Mielcke identified Ricard in court. Mielcke described Hammond's mango tree as on Hammond's property on the makai side of the street. Mielcke testified that Ricard was in the back of a truck with a "picker" that was "a long pole with like a claw on the end"; part of the mango tree "stretche[d] over a bit to the street area"; and Ricard "was picking mangos from the interior of the tree" in such a way that Ricard broke the plane of Hammond's property and reached over a stone wall inside of Hammond's property line.
Hammond identified State's Exhibit 6 as a photograph of the mango tree on his property. He testified that the trunk of the tree is within his property line but that branches "hang out." Hammond identified Ricard in court and testified that he had not given Ricard permission to pick mangos from the tree. Hammond estimated the value of a mango from his tree to be $2.00.
Ricard identified Defense Exhibits A and C as photographs of the mango tree and surrounding area. He testified that the exhibits showed Ricard further testified that he used "a picker on the end of an eight foot dowel" that was not long enough to reach the center of the tree. He described how he picked mangoes "[r]ight above my truck, that hangs over the street," while standing in the back of his truck. In response to the question – "Did you at anytime pick mangoes from the center of the tree?" – Ricard stated, Ricard also testified that he and his wife had been members of the neighborhood board; the board had been involved in a civil lawsuit in which Hammond and Mielcke had sued the board; and when the board was sued, Ricard's wife was a board member.
Following testimony3 and closing arguments, the District court made the following findings ( and ruling: )
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