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                                                Electronically Filed
                                                Intermediate Court of Appeals
                                                CAAP-XX-XXXXXXX
                                                30-APR-2020
                                                07:44 AM
                             NO. CAAP-XX-XXXXXXX

                   IN THE INTERMEDIATE COURT OF APPEALS

                           OF THE STATE OF HAWAI#I


                 STATE OF HAWAI#I, Plaintiff-Appellee, v.
                   JIMMY MOON LEE, Defendant-Appellant

           APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT
                        (CASE NO. 1DCW-XX-XXXXXXX)

                    SUMMARY DISPOSITION ORDER
   (By: Chan, Presiding Judge, and Hiraoka and Wadsworth, JJ.)

              Defendant-Appellant Jimmy Moon Lee (Lee) appeals from
the January 29, 2018 Judgment and Notice of Entry of Judgment
(Judgment) and the July 27, 2018 Notice of Entry of Judgment
and/or Order (Amended Judgment), both entered by the District
Court of the First Circuit, Honolulu Division (District Court).1/
After a bench trial, the District Court convicted Lee of one
count of harassment, in violation of Hawaii Revised Statutes
(HRS) § 711-1106(1)(a) and/or (b),2/ sentenced him to six months


      1/
            The Honorable Blake T. Okimoto entered the Judgment, and the
Honorable James S. Kawashima entered the Amended Judgment.
             Lee also appeals from the July 23, 2018 Notice of Entry of
Judgment and/or Order, but makes no discernable argument with respect to it.
Therefore, any points regarding the July 23, 2018 judgment are deemed waived.
See Hawai#i Rules of Appellate Procedure Rule 28(b)(4) and (7).

      2/
              HRS § 711-1106(1)(a) and (b) (2014) provides, in relevant part:
                    Harassment. (1) A person commits the offense of
              harassment if, with intent to harass, annoy, or alarm any
              other person, that person:
                    (a)   Strikes, shoves, kicks, or otherwise touches
                          another person in an offensive manner or
                          subjects the other person to offensive physical
                          contact; [or]
                    (b)   Insults, taunts, or challenges another person in
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of probation, and ordered, among other things, a restitution
study. The District Court subsequently ordered Lee to pay
restitution to the complaining witness (CW) in the amount of
$419.85 (restitution amount).
          On appeal, Lee contends that: (1) there was
insufficient evidence to support his conviction for harassment;
and (2) the District Court abused its discretion in ordering
restitution absent a hearing in which Lee could dispute the
restitution amount.
          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
Lee's contentions as follows.
          (1) Sufficiency of the Evidence.
          Lee argues that there was insufficient evidence to
establish that he, with the intent to harass, annoy, or alarm the
CW: (a) touched the CW in an offensive manner, or (b) taunted or
challenged the CW in a manner that would cause him to reasonably
believe that Lee intended to cause bodily injury. Lee's argument
is without merit.
          Sufficient evidence to support a conviction requires
substantial evidence as to every material element of the offense
charged. State v. Grace, 107 Hawai#i 133, 139, 111 P.3d 28, 34
(App. 2005). 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. The evidence
must be "viewed in the light most favorable to the prosecution
and in full recognition of the province of the trier of fact,"
who must "determine credibility, weigh the evidence, and draw
justifiable inferences of fact." Id.
          Upon review of the record, we conclude that the State
adduced sufficient evidence to support Lee's conviction for


     2/
          ...continue
                        a manner likely to provoke an immediate violent
                        response or that would cause the other person to
                        reasonably believe that the actor intends to
                        cause bodily injury to the recipient or another
                        or damage to the property of the recipient[.]


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harassment. First, substantial evidence supported the conviction
under HRS § 711-1106(1)(a). At trial, the CW testified as
follows: He was driving his taxi at the airport when Lee made
eye contact with him and said, "What the fuck you looking at," or
"what are you looking at, you fucking [sic]." Wanting to avoid a
fight, the CW proceeded to exit the area; however, traffic
prohibited him from quickly driving away, and Lee followed him on
foot. The CW got out of his vehicle and asked Lee, "what's your
problem?" Lee was swearing and at some point said, "I will choke
your neck and kill you." When the CW "scoop down just momentary,
[Lee] punched [him]," "once," in the "[n]ose and mouth area."
The blow cracked the CW's tooth and caused him to feel pain that
was "about a seven" on a scale of one to ten. The CW called the
Sheriff's Office; a sheriff arrived and took the CW's statement.
          At trial, the District Court found, among other things,
that State's Exhibit A, a photograph of the CW's face that was
taken by the sheriff, depicted a mark on the CW's lower lip,
consistent with the CW's testimony.
          Lee argues that other evidence undermined the CW's
testimony – namely, the sheriff's testimony that he did not see
injuries or redness on the CW's face when he investigated the
incident, and the apparent fact that the sheriff was not prompted
to request medical attention or told by the CW about his cracked
tooth. However, on appellate review for sufficiency of the
evidence, the evidence must be considered in the strongest light
for the prosecution. State v. Matavale, 115 Hawai#i 149, 157,
166 P.3d 322, 330 (2007). Further, we decline to pass upon
issues regarding the weight of the evidence, which are within the
province of the trier of fact – here, the District Court. See
State v. Stocker, 90 Hawai#i 85, 90, 976 P.2d 399, 404 (1999).
On this record, the evidence was sufficient to support Lee's
conviction under HRS § 711-1106(1)(a).
          Second, substantial evidence supported the conviction
under HRS § 711-1106(1)(b). The CW testified that when Lee said
"I will choke your neck and kill you," it made the CW feel "very
scared." Again, Lee argues that other evidence undermines the
CW's testimony – specifically, the sheriff's testimony that the


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CW appeared "a little bit" agitated after the incident, and the
apparent fact that when Lee allegedly threatened him, the CW "did
not jump back in his car, lock the doors and roll up windows as
he drove quickly away from the claimed danger."3/ But, again, we
must consider the evidence in the strongest light for the
prosecution, see Matavale, 115 Hawai#i at 157, 166 P.3d at 330,
and we decline to pass upon issues regarding the weight of the
evidence, see Stocker, 90 Hawai#i at 90, 976 P.2d at 404. On
this record, the evidence was sufficient to support Lee's
conviction under HRS § 711-1106(1)(b).
          (2) Restitution.
           Lee argues that the District Court abused its
discretion in ordering restitution without holding a hearing.
The State concedes this point and maintains that the restitution
sentence should be vacated and the case remanded for a
restitution hearing.
           HRS § 706-646(2) (Supp. 2016) provides, in relevant
part: "The court shall order the defendant to make restitution
for reasonable and verified losses suffered by the victim or
victims as a result of the defendant's offense when requested by
the victim."
           In State v. DeMello, 130 Hawai#i 332, 344, 310 P.3d
1033, 1045 (App. 2013), vacated in part on other grounds, 136
Hawai#i 193, 361 P.3d 420 (2015), the court explained:
                 In light of the Hawai#i statute's requirement that the
           restitution amount be "reasonable and verified" and that the
           victim is in the best position to provide information
           regarding and verification of his or her losses caused by
           the defendant, we conclude that, where restitution is
           contested, the burden to present a prima facie showing that
           the restitution request [meets the statutory requirement] is
           best placed on the prosecution who brings the restitution
           motion on behalf of the victim of the crime.
                 If, on the other hand, the defendant wishes to contest
           the amounts requested by the victim, the onus is on the
           defendant to come forward with evidence to support his or
           her challenge. We start with the basic premise that the
           Legislature has made clear that the restitution award "shall


     3/
             Lee also argues that in assessing the CW's credibility, the
District Court failed to give sufficient consideration to the fact that Lee
and the CW were "competitors in the taxi business." Evaluating the
credibility of witnesses is "the province of the trier of fact." See Stocker,
90 Hawai#i at 90, 976 P.2d at 404. On this record, we will not disturb the
District Court's finding that the CW was credible.

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            be a dollar amount that is sufficient to reimburse any
            victim fully for losses." HRS § 706–646(3).

          At a hearing on July 27, 2018, Lee indicated that he
would contest the CW's request for restitution, and the District
Court stated that it would schedule a "contested hearing."
However, for reasons that are not clear from the record, on the
same date, the District Court filed the Amended Judgment ordering
Lee to pay restitution. Accordingly, it appears that Lee did not
have an adequate opportunity to contest the restitution amount,
as DeMello provides. 130 Hawai#i at 344-45, 310 P.3d at 1045-46.
The District Court thus abused its discretion in ordering Lee to
pay restitution without affording him such an opportunity.
          (3) Conclusion.
          For these reasons, we: (1) affirm the District Court's
Judgment and Notice of Entry of Judgment, entered on January 29,
2018; and (2) vacate that portion of the District Court's Notice
of Entry of Judgment and/or Order, entered on July 27, 2018,
which ordered Lee to pay the restitution amount. The case is
remanded to the District Court for further proceedings consistent
with this Summary Disposition Order.4/

            DATED:   Honolulu, Hawai#i, April 30, 2020.


On the briefs:
                                          /s/ Derrick H.M. Chan
Joanne B. Badua,                          Presiding Judge
Deputy Public Defender,
for Defendant-Appellant.
                                          /s/ Keith K. Hiraoka
Chad Kumagai,                             Associate Judge
Deputy Prosecuting Attorney,
City & County of Honolulu,
for Plaintiff-Appellee.                   /s/ Clyde J. Wadsworth
                                          Associate Judge



      4/
            It appears that following this appeal, on July 10, 2019, the
Adult/Juvenile Community Service and Restitution Unit filed an amended
compliance report in the District Court, indicating that the restitution
amount had been paid in full. There is no indication in the record, however,
that Lee was provided a hearing or other opportunity to contest the
restitution amount prior to making such payment. The proceedings on remand
may depend upon, or be affected by, any further relevant proceedings that may
have occurred in the District Court, including Lee's payment of the
restitution amount.

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