State v. Faamama.

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Electronically Filed
Supreme Court
SCWC-14-0000061
14-NOV-2016
08:05 AM
IN THE SUPREME COURT OF THE STATE OF HAWAI#I
---O0O---
STATE OF HAWAI#I,
Respondent/Plaintiff-Appellee,
vs.
LEON MAKANALANI FAAMAMA,
Petitioner/Defendant-Appellant.
SCWC-14-0000061
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-14-0000061; CR. NO. 12-1-1457)
NOVEMBER 14, 2016
RECKTENWALD, C.J., NAKAYAMA, McKENNA, AND POLLACK, JJ.,
WITH CIRCUIT JUDGE CRANDALL, IN PLACE OF WILSON, J., RECUSED,
DISSENTING
OPINION OF THE COURT BY RECKTENWALD, C.J.
Leon Makanalani Faamama was charged with Theft in the
First Degree. After a jury trial in the Circuit Court of the
First Circuit, he was found guilty as charged. Faamama appealed,
arguing inter alia that the circuit court erred in not
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instructing the jury on the lesser-included offense of Theft in
the Second Degree. The Intermediate Court of Appeals (ICA)
affirmed, and Faamama now seeks review from this court.
We find that the court erred in failing to instruct the
jury on the lesser-included offense. There was a rational basis
in the evidence for a verdict acquitting Faamama of Theft in the
First Degree and convicting him of Theft in the Second Degree,
and this error was not harmless.
Accordingly, Faamama’s judgment of conviction is
vacated and the case remanded for a new trial.
I. Background
A. Trial Proceedings
On October 2, 2012, Faamama was charged with Theft in
the First Degree in violation of Hawai#i Revised Statutes (HRS)
§§ 708-830.5(1)(a)1 and 708-830(2)2.
1
HRS § 708-830.5(1)(a) (2006) provides:
(1) A person commits the offense of theft in the first
degree if the person commits theft:
(a) Of property or services, the value of which
exceeds $20,000[.]
2
HRS § 708-830(2) (2006) provides:
A person commits theft if the person does any of the
following:
. . . .
(2) Property obtained or control exerted through
(continued...)
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At trial,3 the State relied heavily on the testimony of
Pastor John Vaughn, the alleged victim. Vaughn met Faamama
during the course of his ministry and developed a friendship with
him.
Prior to October 2011, Faamama told Vaughn that he was
participating in the Hawai#i Drug Court program, but was being
harassed by the Drug Court administrator, Janice Bennett.
Faamama told Vaughn that he was routinely forced to move from one
clean-and-sober house to another and each time pay the first
month’s rent and a security deposit. Faamama also told Vaughn
that Bennett was extorting money from him by making him pay large
fees that other participants were not made to pay. Faamama asked
Vaughn for money for the rent, security deposits, and fees, and
Vaughn began giving him money on a weekly basis.
Faamama told Vaughn that he was going to sue Bennett
for harassment, and that once the lawsuit was resolved, Vaughn
would get all of his money back. Faamama continued asking for
larger amounts of money, claiming that Bennett kept extorting him
for more fees and threatening him with imprisonment if he did not
pay.
2
(...continued)
deception. A person obtains, or exerts control over,
the property of another by deception with intent to
deprive the other of the property.
3
The Honorable Glenn J. Kim presided.
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Vaughn testified that, between October 2011 and
February 2012, he gave Faamama $54,000. Vaughn testified that
all of this money came from twenty-six withdrawals on his home
equity line of credit.
Eventually, Vaughn became concerned that he would not
be repaid. Vaughn attempted to go to the Drug Court to talk to
the presiding judge, Judge Steven Alm, but Faamama told him that
the lawsuit against Bennett was confidential and therefore Vaughn
could not enter the court. Faamama told Vaughn that Judge Alm
was aware of the lawsuit and that, as soon as the outstanding
fees were paid, the suit could be set for trial. Faamama also
told Vaughn that Judge Alm had a friend in the Treasury
Department and that it was assured that the money would be
returned to Vaughn once the lawsuit was finished.
Vaughn gave Faamama money by writing checks on his home
equity credit line, cashing the checks, and then directly giving
the cash to Faamama. Vaughn also withdrew around $7,000 by
maxing out three of his credit cards. Vaughn testified that he
also received some money from the Veterans Administration after
his father had passed away, and that he “gave it all”––around
“three to four thousand dollars”––to Faamama. In addition,
Vaughn testified that he borrowed approximately $47,000 from his
friends and relatives that was given to Faamama.
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The State introduced into evidence numerous exhibits to
corroborate that the money had been withdrawn by Vaughn. Exhibit
18A was data from Vaughn’s checking account, showing that he had
written a $500 check to Faamama on September 5, 2012. Exhibit
18B was a spreadsheet showing that Vaughn had withdrawn $53,575
from his home equity line of credit. Exhibit 18C showed the
history of Vaughn’s home equity line of credit from September 19,
2011, to May 8, 2012, and Vaughn testified that all of the cash
withdrawals were for Faamama. Exhibits 18D and 18E were lists of
people that had loaned Vaughn roughly $47,000 to help Faamama.
Exhibit 18F was a spreadsheet of the amount of money that Vaughn
took for cash advances on his credit cards, totaling $6,395.75.
The State then introduced Exhibits 1A and 2, which were
letters that had been written by Vaughn and given to Faamama to
give to Judge Alm. In the first letter, dated March 8, 2012,
Vaughn expressed concern about the “drug court staff . . .
requiring large sums of money from [Faamama] and threatening that
he would go to jail if he did not pay.” Vaughn stated that he
was “concerned about [his] own finances” and that he loaned
“[Faamama] about $56,000 that the drug court has required of him
for various things.”
In the letter dated March 22, 2012, Vaughn wrote to
Judge Alm again “out of continued concern and frustration”
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because “the Drug Court staff keeps finding new charges that Leon
Faamama must pay or go to jail.” He also mentioned that he
loaned Faamama “over $60,000 over the last several months.” He
wrote that he had “additional debts at 25% interest” which he was
“carrying for [Faamama].”
The State next introduced Exhibit 12, which were
receipts dated August 3, 2012, August 22, 2012, August 27, 2012,
and August 30, 2012. Vaughn testified that he started making
receipts only toward the “very end,” after his wife told him that
he should do so, both for his benefit as well as for Faamama’s.
The total amount of these receipts was approximately $18,000.
On cross-examination, defense counsel questioned Vaughn
as to whether Faamama’s Drug Court claims made sense to him.
Vaughn replied that it did not anymore, but back then he was more
focused on quickly getting the money to Faamama than asking
questions. Vaughn also admitted that before he started giving
money to Faamama, he had run up the debt on his home equity line
of credit to $134,000. Vaughn also testified that he did not
keep accounts of his spending or of the money he gave to Faamama.
He also testified that he “co-mingled his personal money” with
the money that he received from his friends and relatives by
putting it in his checking account.
Vaughn further testified on cross that he never mailed
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the letters to Judge Alm because he thought Faamama would give
them to him. He testified that he did not follow up, despite not
getting a response, because Faamama told him that the case was
pending and thus Judge Alm could not talk about it. He said that
he did go to the Drug Court, but waited outside and never spoke
to anyone.
The State introduced several other witnesses at trial,
including Judge Alm and Bennett who both testified that the Drug
Court participants paid a “one-time flat fee” of $250 and that
Faamama paid nothing more. Further, Bennett testified that she
did not tell Faamama that he would go to jail if he did not pay
large sums of money to Drug Court, nor did she require him to pay
fees that other participants were not paying.
Faamama did not testify, and the defense did not
present any witnesses. At the end of trial, Faamama moved for a
judgment of acquittal, arguing that the State failed to make a
prima facie case. The court denied the motion.
B. Jury Instructions
At the end of trial, defense counsel requested that a
Theft in the Second Degree instruction be given to the jury
because “it’s possible the jury could believe that the State did
not prove that he took over $20,000 but that [the State] did
prove, based on the receipts, that he did receive $18,000.” The
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circuit court initially agreed, noting that he was going to make
the same suggestion. The court stated that a reasonable juror
may be convinced that the rest of the money was a gift or was not
proven, and thus would want to convict Faamama only on the basis
of $18,000, the amount for which there were receipts signed by
Faamama.
The State disagreed, arguing that “in order to find
[Faamama] guilty of stealing that amount, they would have to
reject that idea or claim that it was given as a loan, and if
they reject that idea or claim, I don’t see any rational basis
for them to reject the rest of the money.” The State also argued
that significant evidence was presented to corroborate Vaughn’s
testimony.
The State argued that the letters written by Vaughn to
Judge Alm were the “same sorts of evidence” as the receipts
because Vaughn had written the amount of money he had given to
Faamama. The court agreed with this argument, noting that the
letters were in writing and that the jury could look at them as
well.
The court denied defense counsel’s request, concluding
that there was no “rational basis for a reasonable juror” to
believe that Faamama took less than $20,000 from Vaughn. Defense
counsel then requested an instruction of Theft in the Fourth
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Degree, but the court denied the request on the same basis.
Accordingly, the jury was only instructed on Theft in
the First Degree.
C. Jury Verdict and Sentencing
On September 16, 2013, the jury found Faamama guilty of
Theft in the First Degree. The Court sentenced Faamama to prison
for ten years, ordered him to pay restitution of $158,910.75 to
Vaughn, and also $105 to the Crime Victim Compensation Fund.
D. ICA Proceedings
Faamama appealed to the ICA, alleging four points of
error: (1) the court violated his constitutional right to
testify by failing to administer a proper Tachibana colloquy; (2)
the court erred in failing to instruct the jury on
lesser-included theft offenses; (3) the DPA committed
prosecutorial misconduct in his opening statement and closing
argument; and (4) the court erred in denying his motion for
judgment of acquittal as there was insufficient evidence in
support of his conviction.
In a summary disposition order, the ICA rejected
Faamama’s arguments and affirmed the judgment. The ICA held that
(1) there was ample and compelling evidence to support the jury’s
verdict finding Faamama guilty of Theft in the First Degree; (2)
any error in the court’s failure to instruct on lesser-included
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theft offenses was harmless; (3) the court engaged in two
colloquies with Faamama that both complied with the Tachibana
requirements, which constituted valid on-the-record waivers by
Faamama of his right to testify; and (4) the DPA’s remarks in
opening statement and closing argument did not constitute
prosecutorial misconduct because they were “reasonable
inferences” from the evidence that was introduced at trial.
II. Standards of Review
B. Jury Instructions
“The standard of review for a trial court’s issuance or
refusal of a jury instruction is whether, when read and
considered as a whole, the instructions given are prejudicially
insufficient, erroneous, inconsistent, or misleading.” State v.
Kassebeer, 118 Hawai#i 493, 504, 193 P.3d 409, 420 (2008)
(internal quotation marks and citation omitted).
III. Discussion
Faamama’s application presents the following questions:
1. Whether the ICA gravely erred in holding that there
was substantial evidence to support Fa#amama’s
conviction?
2. Whether the ICA gravely erred in holding that any
error by the Circuit Court in failing to instruct the
jury on the lesser-included theft offenses was
harmless?
3. Whether the ICA gravely erred in holding that the
Circuit Court complied with the Tachibana requirements
and obtained a valid on-the-record waiver of
Fa#amama’s right to testify?
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4. Whether the ICA gravely erred in holding that the
DPA’s remarks in opening statement and closing
arguments did not constitute prosecutorial misconduct?
We conclude that the circuit court erred in refusing to
instruct the jury on the lesser-included offense of Theft in the
Second Degree (Theft 2). Accordingly, we vacate Faamama’s
conviction on this basis and do not address his remaining points
of error.
To support a conviction for Theft in the First Degree
(Theft 1), the State was required to prove, among other things,
that Faamama had committed theft of “property or services, the
value of which exceeds $20,000.” HRS § 708-830.5.
During the settling of jury instructions, defense
counsel asked for a Theft 2 instruction, arguing that “it’s
possible the jury could believe that the State did not prove that
[Faamama] took over $20,000 but that [the State] did prove, based
on the receipts, that [Faamama] did receive $18,000.” The court
declined to give the instruction, finding that there was not “a
rational basis for a reasonable juror to acquit of the Theft 1
and convict only of Theft 2.” The court also rejected defense
counsel’s proposed instruction on Theft in the Fourth Degree
(Theft 4) for the same reason.
Faamama argued to the ICA that the court erred in
failing to instruct the jury on the lesser-included theft
offenses. Passing on that issue, the ICA concluded that any
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error was harmless beyond a reasonable doubt. It noted that
Faamama did not present a plausible motive for Vaughn to testify
falsely or any significant evidence to contradict his testimony,
and that the State presented evidence that the amount of money
far exceeded the $20,000 minimum for Theft 1. Accordingly, there
was “no reasonable possibility that the Circuit Court’s failure
to instruct the jury on lesser-included theft offenses affected
the outcome of this case or contributed to Faamama’s first-degree
theft conviction.”
Faamama’s application argues that there was a rational
basis for a verdict acquitting Faamama of Theft 1 and convicting
him of the lesser-included offenses, and as such, the court was
required to give the requested jury instruction. The State
responds that, based on the record, there “existed no rational
basis to acquit of the charged offense and to convict [Faamama]
of any lesser-included theft offense.”
We agree that there was a rational basis for the jury
to acquit Faamama of Theft 1 and find him guilty of Theft 2.
Further, this failure to instruct the jury on the lesser-included
offense was not harmless. Accordingly, the judgment of
conviction as to Theft 1 is vacated and the case remanded for a
new trial.
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A. The Circuit Court was Required to Give the Requested Jury
Instruction on the Lesser-Included Offense of Theft 2.
The initial question is whether the court erred in
failing to give the Theft 2 jury instruction. In State v.
Haanio, we mandated that “trial courts must instruct juries as to
any included offenses when ‘there is a rational basis in the
evidence for a verdict acquitting the defendant of the offense
charged and convicting the defendant of the included offense.’”
94 Hawai#i 405, 413, 16 P.3d 246, 254 (2001) (quoting HRS § 701-
109(5) (1993)), overruled on other grounds by State v. Flores,
131 Hawai#i 43, 314 P.3d 120 (2013). The rationale behind the
rule is that the public interest is best served by the jury
assessing criminal liability if it exists in the evidence. See
Flores, 131 Hawai#i at 51, 314 P.3d at 128.
A Theft 1 conviction requires theft “[o]f property or
services, the value of which exceeds $20,000.” HRS § 708-830.5.
A Theft 2 conviction requires theft “[o]f property from the
person of another” or “[o]f property or services the value of
which exceeds $300.” HRS § 708-831. Here, neither party
disputes that Theft 2 is a lesser-included offense of Theft 1.
See State v. Stenger, 122 Hawai#i 271, 293, 226 P.3d 441, 463
(2010); HRS § 701-109(4)(a).
Because Theft 2 is a lesser-included offense of Theft
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1, the critical question is “whether any view of the evidence in
this case presented a rational basis for the jury to acquit”
Faamama of Theft 1, and, alternatively, to convict him of Theft
2. Flores, 131 Hawai#i at 53, 314 P.3d at 130 (emphasis added).
The difference between Theft 1 and Theft 2, as charged in this
case, is the value of what was stolen. Theft 1 involves theft
exceeding $20,000, while Theft 2 involves theft exceeding $300.
Compare HRS § 708-830.5 with HRS § 708-831.
In this case, the court should have given a Theft 2
instruction. At trial, Vaughn testified that he gave Faamama
somewhere between $134,560 and $164,000. This amount was
established primarily through Exhibits 18B, 18C, 18D, 18E, and
18F, which were spreadsheets reflecting all of the money that
Vaughn said he gave to Faamama.
However, there is a lack of direct evidence
corroborating Vaughn’s testimony that he gave Faamama amounts
totaling over $20,000. Vaughn testified that he would give
Faamama cash by writing checks out to “cash,” except for one
check in the amount of $500. Moreover, Vaughn did not write
anything in the notation section of the checks and did not start
generating receipts until the “very end,” after his wife told him
that he should do so. Only four receipts were created by Vaughn
and signed by Faamama, which were introduced by the State as
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Exhibit 12. Adding the four receipts to the $500 check that was
written out to Faamama results in a total of $19,175––$825 less
than the $20,000 required for a Theft 1 conviction.
On cross-examination, Vaughn testified that he did not
keep an accounting of the money he gave to Faamama. Vaughn also
admitted that he had taken out thousands of dollars during the
charged period for his personal use. He could not specify which
amounts were for personal use and which he gave to Faamama.
“Because the jury was the exclusive judge of the value
of evidence and credibility of witnesses, it had the ultimate
discretion to decide to what extent a witness should be believed
and whether to discredit testimony.” Stenger, 122 Hawai#i at
295, 226 P.3d at 465 (internal quotation marks omitted). On this
record, a juror could rationally have chosen not to believe,
beyond a reasonable doubt, that all of the transactions had
occurred. A juror could have decided to credit the receipts that
were signed by Faamama, as well the check written out to him, but
have a reasonable doubt as to the validity of the amounts that
did not have similar corroboration. Accordingly, a juror would
have a rational basis in the evidence to acquit Faamama of Theft
1, and convict him of Theft 2.
In its decision to deny giving the Theft 2 instruction,
the court reasoned that the two letters Vaughn wrote to Judge Alm
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were the “same sorts of evidence” as the receipts. However, the
receipts were signed by Faamama, whereas the letters were not. A
juror could have found that Vaughn’s stated amounts in the
letters––$56,000 and $60,000––were not credible.
The State argues that this case is similar to State v.
Nichols, 111 Hawai#i 327, 141 P.3d 974 (2006), and State v.
Sneed, 68 Haw. 463, 718 P.2d 280 (1986). In both cases, we
upheld the court’s decision to not give a lesser-included offense
instruction. Neither case is analogous to the instant case.
In Nichols, whether the defendant should have been
convicted of first or second degree terroristic threatening
hinged on whether the accused acted with the requisite state of
mind with respect to the attendant circumstance of “public
servant.” 111 Hawai#i at 327, 141 P.3d at 974. The only
evidence regarding “public servant” came from an officer’s
uncontradicted testimony that: (1) in the course of his official
duties as a police officer, he had been involved in a
confrontation with the defendant; and (2) the defendant made a
statement that indicated he knew that he was threatening a police
officer. Id. at 342, 141 P.3d at 989. Accordingly, the “only
rational inference that could be drawn . . . is that [the
defendant] knew that he was threatening a police officer.” Id.In contrast, the evidence presented at trial would
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allow another rational inference to be drawn--that Faamama had
committed theft, but not in an amount in excess of $20,000. This
is distinguishable from Nichols, where there was no other
evidence presented on the question of whether the defendant knew
he was threatening a police officer.
In Sneed, the defendant, who had been found guilty of
Theft 1, argued that the court committed plain error by failing
to instruct the jury as to lesser-included theft offenses. See
68 Haw. at 463, 718 P.2d at 280. We held that since the only
defense advanced by the defendant was a “flat denial” of
committing theft, there would not have been a factual basis in
the evidence for the jury to acquit on Theft 1, but convict on
lesser-included theft offenses. Id. at 464, 718 P.2d at 281. In
contrast here, the State presented direct physical evidence––four
receipts signed by Faamama and a check written out to
Faamama––that corroborated $19,175 of Vaughn’s alleged losses.
The State did not present similar evidence to substantiate the
additional losses claimed by Vaughn. Therefore, unlike Sneed,
there was a rational basis for a verdict acquitting Faamama of
Theft 1 and convicting him of Theft 2.4
4
Faamama also argues that the court should have given a Theft 4
instruction, which involves theft not in excess of $100. See HRS § 708-833
(2014). We disagree, insofar as there was not a rational basis in the
evidence for a verdict acquitting Faamama of Theft 1 and convicting him of
Theft 4. See Haanio, 94 Hawai#i at 413, 16 P.3d at 254. The State introduced
(continued...)
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Accordingly, the court was required to give the
requested jury instruction. See Stenger, 122 Hawai#i at 295-96,
226 P.3d at 465-66.
B. The ICA was Incorrect to Conclude that the Circuit Court’s
Failure to Instruct on Theft 2 was Harmless Beyond a
Reasonable Doubt.
The ICA concluded that any error in the court’s failure
to instruct on lesser-included theft offenses was harmless beyond
a reasonable doubt because there was no reasonable possibility
that it affected the outcome of the case. We respectfully
disagree.
In Flores, this court overruled the portion of Haanio
holding that an error in failing to instruct on a lesser-included
offense was always harmless when the jury convicted of the
charged offense. See Flores, 131 Hawai#i at 44, 314 P.3d at 121.
We noted that holding such errors harmless as a matter of law is
inconsistent with the function of the jury in rendering an
accurate verdict and upholding the “truth seeking function of the
judicial system.” Id. at 56, 314 P.3d at 133 (internal quotation
marks and citation omitted).
In Flores, we pointed out that when jury instructions
4
(...continued)
Exhibit 12, which showed four receipts, generated by Vaughn and signed by
Faamama, in the amount of approximately $18,000. The State also introduced
Exhibit 18A, a check written by Vaughn to Faamama in the amount of $500.
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or their omission are at issue on appeal, “the standard of review
is whether, when read and considered as a whole, the instructions
given are prejudicially insufficient, erroneous, inconsistent or
misleading.” Id. at 57-58, 314 P.3d at 134-35 (quoting State v.
Sawyer, 88 Hawai#i 325, 329, 966 P.2d 637, 641 (1998)). Since
the instructions in Flores did not include the lesser-included
offense, they were thus insufficient. See Flores, 131 Hawai#i at
58, 314 P.3d at 135. Similarly here, the court’s jury
instructions in this case were prejudicially insufficient,
inasmuch as they did not include the lesser-included offense of
Theft 2.
The effect of not giving the lesser-included offense
instruction was to force the jury to choose between two options,
conviction of Theft 1, or acquittal. It is precisely this “all
or nothing” strategy that was rejected in Flores:
Holding such errors harmless perpetuates the risk that
the jury in any given case did not actually reach the
result that best conforms with the facts, because the
jury was only presented with two options—guilty of the
charged offense or not guilty—when in fact, the
evidence may admit of an offense of lesser magnitude
than the charged offense.
131 Hawai#i at 56, 314 P.3d at 133.
Accordingly, because there was a rational basis for the
jury to acquit Faamama of Theft 1 and to find him guilty of Theft
2, his conviction must be vacated. See id. at 58, 314 P.3d at
135 (“The failure to instruct the jury on a lesser included
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offense for which the evidence provides a rational basis warrants
vacation of the defendant’s conviction.”).
IV. Conclusion
For the foregoing reasons, the circuit court erred in
failing to instruct the jury on Theft in the Second Degree, and
this error was not harmless. Accordingly, the ICA’s April 22,
2016 judgment on appeal and the circuit court’s December 4, 2013
judgment of conviction as to Theft in the First Degree are
vacated, and the case is remanded to the circuit court for a new
trial.
Thomas R. Waters /s/ Mark E. Recktenwald
for petitioner
/s/ Paula A. Nakayama
James M. Anderson
for respondent /s/ Sabrina S. McKenna
/s/ Richard W. Pollack
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