State v. Tong

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
13-APR-2026
09:04 AM
Dkt. 81 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

STATE OF HAWAI#I, Plaintiff-Appellee,
v.
GEORGE TONG, Defendant-Appellant

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

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

George Tong was convicted of Criminal Property Damage
in the Second Degree1 after a bench trial.2 He appeals from the
Amended Judgment of Conviction and Probation Sentence and the
Free Standing Order of Restitution entered by the Circuit Court
of the First Circuit. We affirm.
Tong was charged with damaging the property of American
Savings Bank (ASB). He allegedly applied glue to an ASB
automatic teller machine (ATM) on February 17, 2023. During his

1
Hawaii Revised Statutes § 708-821 (2014) provides:
(1) A person commits the offense of criminal property
damage in the second degree if by means other than fire:
. . . .

(b) The person intentionally or knowingly damages
the property of another, without the other's
consent, in an amount exceeding $1,500[.]
2
The Honorable Catherine H. Remigio presided.
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

trial he admitted he "spilled the glue or squeezed the glue all
over the machine." He was found guilty as charged, and sentenced
to four years of probation. A restitution hearing was held. The
Amended Judgment of Conviction and the Order of Restitution were
entered on April 24, 2024. This appeal followed.
Tong contends the trial court erred by: (1) admitting
the amount of a proposal to fix the ATM; and (2) finding that
Tong knew he was causing more than $1,500 of damage to the ATM.
(1) State's Exhibit 11 was a redacted copy of Diebold
Nixdorf's proposal to fix the damaged ATM for $7,435.68. When
the State offered Exhibit 11 into evidence, Tong objected "as to
foundation, hearsay, and confrontation." On appeal, Tong argues
Exhibit 11 "is hearsay" and "without requiring a witness to
explain the bases for that amount, the Circuit Court denied Tong
his Due Process right to a Fair Trial."
Exhibit 11 was offered to prove the amount of damage to
the ATM. One of ASB's employees testified that Diebold Nixdorf
"repair and maintain our ATMs." ASB's ATM operations manager,
Laura Ibanes, authenticated Diebold Nixdorf's proposal as the one
she signed to authorize the repair. Exhibit 11's $7,435.68
amount was not hearsay because it was not offered to prove what
Diebold Nixdorf thought the repair would cost; it proved the
amount ASB paid its regular vendor to fix the ATM that Tong
damaged. The declarant was Ibanes; she authorized the $7,435.68
repair. The trial court correctly stated, "the amount that she
approved is obviously relevant."
The trial court noted that Tong "will have the
opportunity to question [Ibanes] as to why she approved that
amount." On cross-examination, Ibanes confirmed that Diebold
Nixdorf was "the company that services all of the ATM machines"
and that "a service technician was deployed to American Savings
Bank to determine the amount of damages in this case[.]" She was
not asked why she approved the repair cost or what she did before
approving the repair. There was no confrontation clause
violation.

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(2) Tong argues the trial court erred by finding he
knew he was causing over $1,500 in damage to the ATM. Relevant
here, Hawaii Revised Statutes (HRS) § 708-801 (2014) provides:

Whenever the value of property or services is determinative
of the class or grade of an offense, or otherwise relevant
to a prosecution, the following shall apply:

. . . .
(4) When acting intentionally or knowingly with respect to
the value of property or services is required to
establish an element of an offense, the value of
property or services shall be prima facie evidence
that the defendant believed or knew the property or
services to be of that value.

Tong argues that "the Circuit Court expressly found
against the presumption of HRS § 708-801(4)." He cites this
excerpt from the trial transcript, after the court found Tong's
acts to be "deliberate, that means intentional":

Now, whether or not this Court believes that at the
time that this happened that this defendant, Mr. Tong, knew
that it was going to be $7,435.68, I don't find that. That
is a very specific amount. That is a lot, and I don't
believe that that was proven beyond a reasonable doubt. But
the Court does believe that an amount greater than 1,500 was
proven, given the machine itself, given the areas that were
deliberately squirted with glue, including a dispenser where
cash could not come out anymore, including the place where
magnetic cards of ATM, debit, or whatever you use in there
would go in, and include buttons that if glued together
would not be able to work would indicate to this Court that
there was, at least an intimate understanding that quite a
bit of damage would be done, not simply damage that could be
wiped off by a rag and water. And in fact that was
attempted by [ASB's assistant branch manager] to no avail.
And the damage was more than that.

(Emphasis added.)
The court found that the State did not prove beyond a
reasonable doubt that Tong believed or knew the specific cost to
repair the damage to the ATM caused by the glue he squeezed on it
was $7,435.68. But the court also found that the State proved
beyond a reasonable doubt that Tong believed or knew the amount
of damage was greater than $1,500. That finding was supported by
substantial evidence in the record and was not clearly erroneous.
See State v. Batson, 73 Haw. 236, 246, 831 P.2d 924, 930 (1992)

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(stating, of jury-waived criminal trial, that "findings of the
trial court will not be disturbed unless clearly erroneous").
The April 24, 2024 Amended Judgment of Conviction and
Probation Sentence and Free Standing Order of Restitution are
affirmed.
DATED: Honolulu, Hawai#i, April 13, 2026.
On the briefs:
/s/ Keith K. Hiraoka
Henry P. Ting, Presiding Judge
Deputy Public Defender
for Defendant-Appellant /s/ Clyde J. Wadsworth
George Tong. Associate Judge

Robert T. Nakatsuji, /s/ Sonja M.P. McCullen
Deputy Prosecuting Attorney, Associate Judge
City and County of Honolulu
for Plaintiff-Appellee
State of Hawai#i.

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