
    STATE OF HAWAII, Plaintiff-Appellee, v. STEPHANIE LIN-KEE, Defendant-Appellant
    NO. 5658
    MARCH 13, 1975
    RICHARDSON, C.J., KOBAYASHI, OGATA AND MENOR, JJ., AND CIRCUIT JUDGE FONG ASSIGNED BY REASON OF VACANCY
   Per Curiam.

We are of the opinion that on the record before us the questions of law raised by appellant in her brief and oral argument are without merit.

Catherine E. Agor, Deputy Public Defender (Donald K. Tsukiyama, Public Defender, with her on the briefs) for defendant-appellant.

Douglas H. Ige, Deputy Prosecuting Attorney (Barry Chung, Prosecuting Attorney, with him on the brief) for plaintiff-appellee.

However, appellee has construed appellant’s appeal to be on the question of whether the verdict of the trial court in finding appellant guilty of the crime for which she was charged is supported by sufficient evidence. We agree with appellee’s construction of appellant’s appeal and upon consideration of the record in this case, we conclude that the verdict of the trial court is not supported by substantial evidence. State v. Rocker, 52 Haw. 336, 475 P.2d 684 (1970).

We, therefore, set aside the judgment and sentence of record and remand this case to the trial court for an entry of a judgment of acquittal of the appellant.

DISSENTING OPINION OF

OGATA, J.,

WITH WHOM RICHARDSON, C.J., JOINS

The majority concludes that the record does not support the district court’s judgment of guilt. I respectfully dissent.

In my view, the record does support the trial court’s judgment of guilt. On appeal the test is whether there is substantial evidence in the record to sustain the findings of the trier of fact, in this case the trial judge. State v. Rocker, 52 Haw. 336, 475 P.2d 684 (1970); State v. Kekaualua, 50 Haw. 130, 433 P.2d 131(1967). Reading and interpreting the record here and considering it most favorably to the appellee, I find substantial evidence to support the trial court’s finding and judgment of guilt.  