  NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER




                                                   Electronically Filed
                                                   Intermediate Court of Appeals
                                                   CAAP-XX-XXXXXXX
                                                   29-MAY-2020
                                                   08:17 AM




                             NO. CAAP-XX-XXXXXXX

                    IN THE INTERMEDIATE COURT OF APPEALS
                           OF THE STATE OF HAWAI#I


                    STATE OF HAWAI#I, Plaintiff-Appellee,
                                      v.
                  KENNETH BEATY, ALSO KNOWN AS CANDISE DAY,
                       LAKENYA LOVE AND TONY ANN LOVE,
                             Defendant-Appellant


          APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
                       (CR. NO. 1PC16-1-001025)


                         SUMMARY DISPOSITION ORDER
           (By:    Ginoza, Chief Judge, Chan and Hiraoka, JJ.)

             Defendant-Appellant Kenneth Beaty, (Beaty),1 appeals
from the January 8, 2019 "Judgment of Conviction and Sentence"
entered by the Circuit Court of the First Circuit (Circuit
Court).2    A jury convicted Beaty of Theft in the Second Degree,
in violation of Hawaii Revised Statutes (HRS) § 708-831(1)(b)
(2014).3 The Circuit Court sentenced Beaty to an indeterminate
term of imprisonment of five years with a lesser mandatory
minimum of one hundred and thirty-three days.

      1
         Beaty is a transgendered individual and at trial was referred to as
Lakenya Love; therefore, Beaty is identified herein as "she."
      2
          The Honorable Todd W. Eddins presided.
      3
         The offense occurred on June 24, 2016. The applicable version of HRS
§ 708-831(1)(b) stated in relevant part: "A person commits the offense of
theft in the second degree if the person commits theft: . . . (b) Of property
or services the value of which exceeds $300[.]"
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          On appeal, Beaty contends (1) the Circuit Court
erroneously concluded Plaintiff-Appellee State of Hawai#i (State)
established sufficient foundation to support admission of a
printed Macy's store receipt (Receipt), designated as State's
Exhibit 5; and (2) there was a lack of substantial evidence to
convict Beaty of shoplifting as defined by the Circuit Court's
instruction to the jury.
          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 resolve Beaty's
points of error as follows, and affirm.
          (1) In Beaty's first point of error she contends the
Circuit Court abused its discretion when it admitted the Receipt
because the State failed to lay a sufficient foundation that the
information on the Receipt regarding the value of the stolen
merchandise was accurate.4 In theft cases involving shoplifting,
HRS § 708-830(8) provides that proof of "[t]he unaltered price or
name tag or other marking on goods or merchandise, duly
identified photographs or photocopies thereof, or printed
register receipts shall be prima facie evidence of value and
ownership of such goods or merchandise." HRS § 708-830(8).5


      4
         Beaty also argues, for the first time on appeal, that the State could
have laid a sufficient foundation if the Receipt was authenticated pursuant to
Hawaii Rules of Evidence Rule 902 (Self authentication). Because Beaty did
not raise authenticity of the Receipt below, this argument is waived.
      5
          HRS § 708-830(8) provides, in relevant part:
             A person commits theft if the person does any of the
             following:
             . . . .

             (8) Shoplifting.
                   (a) A person conceals or takes possession of
                       the goods or merchandise of any store or
                       retail establishment, with intent to
                       defraud.

             . . . .
                                                                    (continued...)

                                       2
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          Here, the State proffered the Receipt as evidence that
the value of the shoplifted merchandise was $882.57 before tax.
Joseph Rangel (Rangel), an asset protection supervisor for
Macy's, testified that he generated the Receipt at a register at
which he scanned the items taken by Beaty. Rangel testified that
he received training on how to use Macy's cash registers, and
Rangel testified he made sure that any markdowns or discounts
were accounted for when he scanned the items, per standard
procedure.6 Rangel also knew that the cash registers were
regularly checked and maintained because he had permitted
technicians into the building to perform maintenance on the cash
registers.
           We conclude Rangel's testimony provided sufficient
foundation for admission of the Receipt. The Circuit Court did
not abuse its discretion in admitting the Receipt, and pursuant
to HRS § 708-830(8), the Receipt constituted prima facie evidence
of the value of the shoplifted items.
           (2) Beaty's second point of error alleges that there
was no substantial evidence to support the jury's conclusion that
Beaty concealed or took possession of Macy's merchandise with the
intent of injuring Macy's interest in the merchandise. "Intent
to defraud" is an element of the offense of shoplifting under HRS
§ 708-830(8) and is defined as: "(1) An intent to use deception


      5
       (...continued)
            The unaltered price or name tag or other marking on
            goods or merchandise, duly identified photographs or
            photocopies thereof, or printed register receipts
            shall be prima facie evidence of value and ownership
            of such goods or merchandise. Photographs of the
            goods or merchandise involved, duly identified in
            writing by the arresting police officer as accurately
            representing such goods or merchandise, shall be
            deemed competent evidence of the goods or merchandise
            involved and shall be admissible in any proceedings,
            hearings, and trials for shoplifting to the same
            extent as the goods or merchandise themselves.

      6
         The record includes photos of the tagged merchandise, which were
entered into evidence without objection. Although the prices on each tag is
not clearly visible in the photos, Rangel testified the tags on the recovered
merchandise were the tags he scanned at the cash register.

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to injure another's interest which has value; or (2) Knowledge by
the defendant that the defendant is facilitating an injury to
another's interest which has value." HRS § 708-800 (2014).
          "It is an elementary principle of law that intent may
be proved by circumstantial evidence; that the element of intent
can rarely be shown by direct evidence; and it may be shown by
reasonable inference arising from the circumstances surrounding
the act." State v. Silva, 67 Haw. 581, 587, 698 P.2d 293, 297
(1985) (quoting State v. Yabusaki, 58 Haw. 404, 409, 570 P.2d
844, 847 (1977)).
          Here, Rangel observed Beaty select numerous items and
conceal them in a large duffle bag, and Beaty did not dispute at
trial the fact that she took the merchandise. When Beaty was
stopped after she exited Macy's, Beaty told Rangel that Rangel
"could just take [Macy's] stuff back and let her go", from which
the jury could infer that Beaty intended to take possession of
Macy's merchandise but when she was caught, she told Rangel to
take the merchandise back to avoid criminal prosecution. In
addition, the testimony by Rangel about his observations and
video surveillance of Beaty's selection of merchandise was
sufficient to show Beaty was aware that the items she took had
value. Many of those items could reasonably be identified as
having significant retail value (e.g., Beaty's selection of name
brands such as Coach and Michael Kors). Lastly, Rangel observed
Beaty enter the fitting room with a "collection of merchandise
slung over her right arm with the hangers and such, tags." Once
Rangel checked the fitting room after Beaty left it, Rangel saw
that only "a bunch of empty hangers and tags" remained, "no
clothing at all," which sufficiently demonstrates Beaty's
intentional use of deception to injure Macy's interest by
concealing the clothing in her duffle bag while she was in the
fitting room and attempting to leave Macy's without paying for
any of the merchandise. The evidence was sufficient to support
the jury in finding, inter alia, that Beaty intended to injure
the interest of Macy's in the merchandise.

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          When an appellate court passes on the legal sufficiency
of evidence to support a conviction, the evidence must be
considered in the strongest light for the prosecution. State v.
Silver, 125 Hawai#i 1, 5, 249 P.3d 1141, 1145 (2011) (quoting
State v. Matavale, 115 Hawai#i 149, 157-58, 166 P.3d 322, 330-31
(2007)). 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. Id.
(quoting Matavale, 115 Hawai#i at 157-58, 166 P.3d at 330-31.)
"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. Id. (quoting State v. Batson,
73 Haw. 236, 248-49, 831 P.2d 924, 931 (1992) (brackets
omitted)). Here, the jury's conclusion that Beaty possessed the
requisite state of mind to commit the charged offense was
supported by substantial evidence.
          Therefore, IT IS HEREBY ORDERED that the "Judgment of
Conviction and Sentence" entered on January 8, 2019, by the
Circuit Court of the First Circuit, is affirmed.
          DATED: Honolulu, Hawai#i, May 29, 2020.


On the briefs:                        /S/ Lisa M. Ginoza
                                      Chief Judge
William H. Jameson, Jr.,
Deputy Public Defender,               /s/ Derrick H.M. Chan
for Defendant-Appellant.              Associate Judge

Brian R. Vincent,                     /s/ Keith K. Hiraoka
Deputy Prosecuting Attorney,          Associate Judge
for Plaintiff-Appellee.




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