State v. Yokota.

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Electronically Filed
Supreme Court
SCWC-XX-XXXXXXX
05-SEP-2018
08:10 AM
IN THE SUPREME COURT OF THE STATE OF HAWAI#I
---o0o---
STATE OF HAWAI#I,
Respondent/Plaintiff-Appellant,
vs.
ERIC N. YOKOTA,
Petitioner/Defendant-Appellee.
SCWC-XX-XXXXXXX
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-XX-XXXXXXX; CR. NO. 15-1-0999)
SEPTEMBER 5, 2018
RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.
OPINION OF THE COURT BY NAKAYAMA, J.
Petitioner/Defendant-Appellee Eric N. Yokota (Yokota)
was charged with five counts of forgery and one count of theft
for fraudulently cashing five checks from the same bank account
over the course of six days in December 2014. The question he
presents on certiorari is whether Respondent/Plaintiff-Appellant
State of Hawai#i (the State) could simultaneously charge him with
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one count of theft as a continuing course of conduct and five
individual counts of forgery.
Notwithstanding the five counts of forgery, because the
language of our theft statute permits theft to be charged as a
continuing course of conduct, we conclude that the Circuit Court
of the First Circuit (circuit court) erred in dismissing the
theft charge as a matter of law. As the Intermediate Court of
Appeals (ICA) concluded the same, we affirm the ICA’s July 26,
2017 judgment on appeal.
I. BACKGROUND
On June 23, 2015, Yokota was charged with several
criminal counts stemming from five incidents, occurring over the
course of six days, where he allegedly forged and cashed
fraudulent checks. Specifically, the State alleged that:
On December 11, 2014, Yokota entered the Pearlridge
branch of American Savings Bank (ASB) and presented a teller with
an ASB check drawn on the account of Rudolph Kama (Kama). The
check was made payable to “Cash” in the amount of $100, which the
teller cashed for Yokota.
On December 12, 2014, Yokota entered the Stadium Mall
branch of ASB and presented a teller with an ASB check drawn on
Kama’s account. The check was made payable to “Cash” in the
amount of $175, which the teller cashed for Yokota.
On December 13, 2014, Yokota entered the Pearl City
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branch of ASB and presented a teller with an ASB check drawn on
Kama’s account. The check was made payable to “Eric Yokota” in
the amount of $200, which the teller cashed for Yokota.
On December 15, 2014, Yokota again entered the Pearl
City branch of ASB and presented a teller with an ASB check drawn
on Kama’s account. The check was made payable to “Cash” in the
amount of $145, which the teller cashed for Yokota.
Finally, on December 16, 2014, Yokota entered the Salt
Lake branch of ASB and presented a teller with an ASB check drawn
on Kama’s account. The check was made payable to “Cash” in the
amount of $100, which the teller cashed for Yokota.
Each check that Yokota had allegedly cashed was less
than $300 in value, but in the aggregate, totaled $720.
On January 6, 2015, Kama filed a police report alleging
that seven checks were drawn on his personal account without his
knowledge or authorization. Kama related that five of the seven
forged checks were endorsed by Yokota. Kama further stated that
he believed Yokota to be a friend of his deceased son’s
girlfriend.
Accordingly, Yokota was arrested on June 22, 2015 and
charged with eight criminal counts by an amended felony
information filed on June 30, 2015. The eight counts were
charged as follows:
Counts I-V: Forgery in the Second Degree, in violation
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of Hawai#i Revised Statutes (HRS) § 708-852,1 for the five
separate occasions where Yokota
did, with intent to defraud, falsely utter a forged
instrument, to wit, [an ASB check] drawn on the account of
[Kama], made payable to “Cash” in the amount of [$100.00,
$175.00, $200.00, $145.00, and $100.00], which is or
purports to be, or which is calculated to become or to
represent if completed, a commercial instrument, or other
instrument which does or may evidence, create, transfer,
terminate, or otherwise affect a legal right, interest,
obligation, or status . . . .
Count VI: Theft in the Second Degree, in violation of
HRS § 708-831(1)(b),2 where Yokota “did obtain or exert
unauthorized control over the property of [Kama] and/or [ASB],
the value of which exceeds Three Hundred Dollars ($300.00), by
deception, with intent to deprive [Kama] and/or [ASB] of the
1
HRS § 708-852 (2014) provides in relevant part:
Forgery in the second degree. (1) A person commits
the offense of forgery in the second degree if, with intent
to defraud, the person falsely makes, completes, endorses,
or alters a written instrument, or utters a forged
instrument, . . . which is or purports to be, or which is
calculated to become or to represent if completed, a deed,
will, codicil, contract, assignment, commercial instrument,
or other instrument which does or may evidence, create,
transfer, terminate, or otherwise affect a legal right,
interest, obligation, or status.
(2) Forgery in the second degree is a class C felony.
2
HRS § 708-831 (2014) provided in relevant part:
Theft in the second degree. (1) 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[.]
. . . .
(2) Theft in the second degree is a class C felony.
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property.”
Count VII: Unauthorized Possession of Confidential
Personal Information, in violation of HRS § 708-839.55,3 where
Yokota “did intentionally or knowingly possess, without
authorization, any confidential personal information of [Kama] in
any form . . . .”
Count VIII: Identity Theft in the Second Degree, in
violation of HRS § 708-839.7,4 where Yokota
did make or cause to be made, either directly or indirectly,
a transmission of any personal information of [Kama] by any
oral statement, any written statement, or any statement
conveyed by electronic means, with the intent to commit the
offense of Theft in the Second Degree from [Kama] and/or
[ASB] . . . .
3
HRS § 708-839.55 (2014) provides in relevant part:
Unauthorized possession of confidential personal
information. (1) A person commits the offense of
unauthorized possession of confidential personal information
if that person intentionally or knowingly possesses, without
authorization, any confidential personal information of
another in any form, including but not limited to mail,
physical documents, identification cards, or information
stored in digital form.
. . . .
(3) Unauthorized possession of confidential
information is a class C felony.
4
HRS § 708-839.7 (2014) provides:
Identity theft in the second degree. (1) A person
commits the offense of identity theft in the second degree
if that person makes or causes to be made, either directly
or indirectly, a transmission of any personal information of
another by any oral statement, any written statement, or any
statement conveyed by electronic means, with the intent to
commit the offense of theft in the second degree from any
person or entity.
(2) Identity theft in the second degree is a class B
felony.
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A. Circuit Court Proceedings: Motion to Dismiss
On August 4, 2015, Yokota filed a motion to dismiss
Counts VI (theft in the second degree) and VIII (identity theft
in the second degree) in the circuit court.5 Yokota argued that
under the circumstances in his case, the State could not charge
him with theft in the second degree because he did not steal
“property or services the value of which exceeds $300” pursuant
to HRS § 708-831(1)(b).
First, Yokota noted that no single check, by itself,
exceeded the statutory minimum required to charge him for theft
in the second degree.
Second, Yokota argued that the State could not
aggregate the five separate incidents of theft into one under a
continuing course of conduct theory in order to satisfy the $300
threshold amount. Yokota contended that under State v. Castro,
69 Haw. 633, 653, 756 P.2d 1033, 1047 (1988), “[t]he test to
determine whether [a] defendant intended to commit more than one
offense in the course of a criminal episode is whether the
evidence discloses one general intent or discloses separate and
distinct intents.” “If there is but one intention, one general
impulse and one plan, there is but one offense.” Id. Here,
Yokota argued, on each day that he forged and cashed a check, he
5
The Honorable Dexter D. Del Rosario presided.
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allegedly had one impulse (to steal money) and one plan (to
pass a stolen check at a bank). The allegations that he had
similar impulses on subsequent days are irrelevant and do
not prove general intent to steal over $300 such that the
State is justified in charging more serious offenses.
Yokota further contended that this court’s reasoning in
State v. Decoite, 132 Hawai#i 436, 323 P.3d 80 (2014), was
directly applicable to his case. He noted that in Decoite, this
court held that two instances of domestic physical abuse that
occurred over a two-year period could not be charged as a
continuing course of conduct offense because “physical abuse” was
“necessarily discrete and episodic.” 132 Hawai#i at 438, 323
P.3d at 82. Similar to an incident of domestic violence, Yokota
argued that each incident of theft was necessarily discrete in
nature, as “[he] enter[ed] the bank, passe[d] the stolen check,
[got] the money and the deed [was] done.”
The State opposed Yokota’s motion to dismiss and argued
that the five alleged instances of theft were clearly committed
under one scheme or course of conduct, and therefore, aggregation
of the value of goods stolen was permitted by statute.6
6
Once it is established that a course of conduct exists, HRS § 708-801(6)
(2014) explicitly allows theft amounts to be aggregated:
Valuation of property or services. 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:
. . . .
(6) Amounts involved in thefts committed pursuant to
one scheme or course of conduct, whether the property taken
be of one person or several persons, may be aggregated in
determining the class or grade of the offense.
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Applying Castro, the State concluded that Yokota evinced “one
general intent,” which was “to steal money from [Kama].”
For support, the State explained that Yokota’s conduct
was more akin to the defendant’s conduct in State v. Martin, 62
Haw. 364, 616 P.2d 193 (1980), than Decoite. The State noted
that in Martin, this court determined that the defendant engaged
in a continuing course of criminal conduct when she filed
multiple fraudulent public assistance claims over the course of
several years, because the defendant was motivated by a single
criminal impulse –- to steal from the State.
The State argued that here, while Yokota did not submit
fraudulent statements, “he did submit fraudulently executed
checks over the course of time.” Just as the defendant in Martin
had a continuing intent to defraud the State, the State contended
that Yokota “had the continuing intent to defraud Mr. Kama and he
did so by continually submitting identical fraudulent checks.”
Thus, just as this court concluded in Martin, the State concluded
that Yokota’s acts constituted a continuing course of criminal
conduct. As such, the State requested that the circuit court
deny Yokota’s motion to dismiss.
After holding a hearing on Yokota’s motion to dismiss,
the circuit court orally granted Yokota’s motion and dismissed
Counts VI and VIII with prejudice. Specifically, the circuit
court stated, “the Court is in agreement with the defense’s
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position, that the State is not permitted to aggregate the amount
in determining the grade of the offense, that each of these are
separate. So the Court will grant the motion and dismiss Counts
6 and 8.” Yokota then pleaded no contest to the remaining counts
against him, and the circuit court found him guilty of the five
counts of forgery (Counts I to V) and the one count of
unauthorized possession of confidential personal information
(Count VII).
On December 8, 2015, the circuit court entered a
written order granting Yokota’s motion to dismiss Counts VI and
VIII of the amended felony information with prejudice.
B. ICA Proceedings
On January 6, 2016, the State filed a notice of appeal.
In its opening brief, the State alleged that “[t]he circuit court
erred by concluding the State was barred as a matter of law from
charging Yokota’s theft by passing 5 fraudulently executed checks
over the course of 6 days as one scheme or course of conduct.”
Specifically, the State argued that the plain language of HRS §
708-801(6) allowed the State “to aggregate amounts obtained
during individual instances of obtaining money from another by
deception, even if the victim [was] not the same person in each
individual instance.” The State further contended that “the
question of whether the individual forgeries were continuous
conduct should be submitted to the trier of fact, and it was
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err[or] for the circuit court to conclude that prosecution as
continuous conduct was precluded as a matter of law.”
In response, Yokota argued that the circuit court
correctly concluded that the individual forgeries could not be
charged as theft under a continuing course of conduct theory.
He stated that “[t]he State recognized the transitory, brief, and
episodic nature of each act of uttering a forged instrument when
it charged [him] with five separate counts of [forgery].”
Therefore, Yokota concluded, because his conduct was
“‘necessarily discrete and episodic,’ the circuit court did not
err when it concluded that the thefts that resulted from each
count of forgery could not be aggregated.”
In a summary disposition order filed on June 23, 2017,
the ICA agreed with the State and concluded that “the Circuit
Court erred in dismissing Counts VI and VIII on the basis that
they could not be charged as continuing courses of conduct.”
Based on the test this court articulated in Decoite and Martin,
the ICA concluded that the “statutory and case law illustrate[d]
a legislative intent to allow the treatment of theft crimes as
continuing courses of conduct.”
Accordingly, the ICA vacated the circuit court’s order
granting Yokota’s motion to dismiss Counts VI and VIII and
remanded the case to the circuit court for further proceedings
consistent with the summary disposition order. On July 26, 2017,
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the ICA filed its judgment on appeal.
Yokota filed an application for writ of certiorari.
II. STANDARDS OF REVIEW
A. Conclusions of Law
Conclusions of law are reviewed de novo under the
right/wrong standard. Decoite, 132 Hawai#i at 437, 323 P.3d at
81.
B. Statutory Interpretation
The interpretation of a statute is a question of law
reviewable de novo. State v. Arceo, 84 Hawai#i 1, 10, 928 P.2d
843, 852 (1996).
When interpreting our statutory scheme, we abide by
several established rules of statutory construction:
First, our foremost obligation is to ascertain and give
effect to the intention of the legislature, which is
obtained primarily from the language contained in the
statute[s] themselves. Second, [l]aws in pari materia, or
upon the same subject matter, shall be construed with
reference to each other. What is clear in one statute may
be called in aid to explain what is doubtful in another.
And, third, [t]he legislature is presumed not to intend an
absurd result, and legislation will be construed to avoid,
if possible, inconsistency, contradiction[,] and
illogicality.
Id. at 19, 928 P.2d at 861 (alterations in original) (citations
and quotations omitted).
III. DISCUSSION
Yokota presents one question for this court’s review:
“[w]hether the ICA gravely erred in concluding that the State was
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not barred from charging Yokota with [theft in the second degree]
for passing five fraudulently executed checks amounting to $720
over the course of six days as a continuing course of conduct.”7
Specifically, Yokota alleges that when the State decided to
charge him with five separate counts of forgery, it “recognized
the transitory, brief, and episodic nature of each act,” and
could not simultaneously charge him with theft under a continuing
course of conduct theory. For the reasons stated below, we
reject Yokota’s argument and hold that theft can be charged as a
continuing course of conduct, notwithstanding a decision to
charge individual counts of forgery.
A. Generally, theft may be charged as a continuing course of
conduct.
HRS § 701-108(4) (2014) provides that “[a]n offense is
committed when every element occurs, or, if a legislative purpose
to prohibit a continuing course of conduct plainly appears, at
the time when the course of conduct or the defendant’s complicity
therein is terminated.” In Decoite, we stated that “[t]he test
to determine whether a crime may be charged on a continuous
conduct theory is whether the language, structure, and purpose of
7
While Yokota does not argue on certiorari that the ICA erred in also
reinstating Count VIII (identity theft in the second degree), our decision on
whether the State could charge Yokota with theft in the second degree directly
affects the validity of the identity theft in the second degree charge. A
person can only be charged with identity theft in the second degree if that
person makes or causes to be made a transmission of any personal information
of another, “with the intent to commit the offense of theft in the second
degree from any person or entity.” HRS § 708-839.7 (2014) (emphasis added).
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the statute reveals a legislative intent to criminalize
continuing conduct.” 132 Hawai#i at 438, 323 P.3d at 82.
The language of the theft statute indicates that theft
may be charged on a continuing conduct theory. The theft statute
provides that a person commits theft if the person “obtains, or
exerts control over, the property of another by deception with
intent to deprive the other of the property.” HRS § 708-830(2)
(2014). Similarly, a person commits theft in the second degree
“if the person commits theft . . . [o]f property or services the
value of which exceeds $300.” HRS § 708-831(1)(b).8
Here, the Legislature’s decision to define theft as
obtaining or exerting control over “property or services,” see
HRS §§ 708-830.5(1)(a), 708-831(1)(b), 708-832(1)(a), 708-833(1),
and not “a piece of property or a service,” indicates that the
Legislature did not necessarily intend that theft be charged
individually. Furthermore, HRS § 708-801(6) provides that
“[a]mounts involved in thefts committed pursuant to one scheme or
course of conduct, whether the property taken be of one person or
several persons, may be aggregated in determining the class or
grade of the offense.” This indicates that the Legislature
explicitly considered that theft could be charged on a continuing
8
For purposes of HRS § 708-831(1)(b), “property” is defined as “any
money, personal property, real property, thing in action, evidence of debt or
contract, or article of value of any kind.” HRS § 708-800 (2014).
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course of conduct theory.
The plain language of the statute is further
supported by case law affirming convictions of guilt for theft as
a continuing course of conduct. For example, in Martin, the
defendant, over the course of four years, filed multiple
fraudulent public assistance forms. 62 Haw. at 366, 616 P.2d at
195-96. This court held that because “all statements were
identical, representing that defendant was unmarried, unemployed,
and not receiving social security benefits,” there was “but one
intention and plan here” -- to commit theft on the State -- “and
thus . . . one offense.” Id. at 369, 616 P.2d at 197.
Accordingly, we affirmed the defendant’s conviction of theft
under a continuous offense theory. Id. at 366, 616 P.2d at 195.
Similarly, in State v. Stenger, 122 Hawai#i 271, 279,
226 P.3d 441, 449 (2010), this court affirmed a jury verdict
finding the defendant guilty of theft when the defendant failed
to disclose for several months that she no longer qualified for
public assistance. We concluded in Stenger that the defendant’s
theft by deception constituted a continuous offense, because
“based on [the State’s] presentation of the case, [the defendant]
acted under ‘one general impulse,’ and had ‘but one intention and
plan,’ to unlawfully procure public assistance from the
government through a ‘series of acts.’” Id. at 289, 226 P.3d at
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459 (citations omitted).
The plain language of the theft statute and our prior
case law lead us to conclude that the State may charge theft on a
continuing conduct theory. The circuit court erred in concluding
that the State could not do so as a matter of law. Additionally,
we reiterate that whether a continuing course of conduct offense
occurred is a question that should be submitted to the jury. See
State v. Matias, 102 Hawai#i 300, 305, 75 P.3d 1191, 1196 (2003)
(“The test to determine whether the defendant intended to commit
more than one offense is whether the evidence discloses one
general intent or discloses separate and distinct intents. . . .
All factual issues involved in this determination must be decided
by the trier of fact.” (emphasis in original)); see also People
v. Daghita, 92 N.Y.S.2d 799, 802 (N.Y. App. Div. 1949) (“What is
‘separate’, what is ‘single’, . . . are all jury questions both
by legal tradition and by necessity. . . . The question of
whether the takings were separate or united in purpose was
carefully and fairly submitted to the jury as a question of
fact[.]”).
Accordingly, the ICA correctly concluded that the
circuit court erred in determining that the State was barred, as
a matter of law, from charging theft as a continuing course of
conduct.
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B. The State could charge Yokota with theft on a continuing
course of conduct theory while simultaneously charging him
with individual counts of forgery.
Yokota does not appear to dispute the foregoing general
principles. Instead, he challenges the State’s decision to
charge him with theft as a continuing course of conduct when it
simultaneously charged him with five separate counts of forgery.
Yokota argues that when the State decided to charge him with five
counts of forgery, it necessarily determined that his conduct was
transitory, brief, and episodic. Yokota concludes that because
conduct that is “necessarily discrete and episodic” cannot be
continuous, the State could not charge him with theft under a
continuing course of conduct theory. The ICA did not address
this aspect of Yokota’s argument on appeal. However, we conclude
that Yokota’s argument fails for two reasons.
First, we have consistently stated that the State has
wide discretion in bringing criminal charges. Decoite, 132
Hawai#i at 442, 323 P.3d at 86 (Pollack, J., dissenting) (citing
United States v. Batchelder, 442 U.S. 114, 124 (1979)); see also
State v. Lagat, 97 Hawai#i 492, 499, 40 P.3d 894, 901 (2002)
(“[T]he matter [on whether to bring a charge under one statute or
another] is necessarily and traditionally in the discretion of
the prosecuting attorney.”). Yokota does not provide any reason
why the State abused its discretion here.
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Second, while the Legislature placed limitations on the
possibility of multiple convictions arising from the same
conduct, it did not similarly limit the State’s ability to charge
multiple offenses arising from the same conduct. HRS § 701-
109(1) (2014) provides:
(1) When the same conduct of a defendant may establish
an element of one or more offense, the defendant may be
prosecuted for each offense of which such conduct is an
element. The defendant may not, however, be convicted of
more than one offense if:
. . . .
(e) The offense is defined as a continuing course of
conduct and the defendant’s course of conduct
was uninterrupted, unless the law provides that
specific periods of conduct constitute separate
offenses.
(emphasis added). In other words, the Legislature explicitly
provided that a defendant may be charged with multiple offenses
arising from the same conduct even when he or she cannot be
convicted of more than one offense. HRS § 701-109(1).
Therefore, while two offenses might eventually merge to “limit
the possibility of multiple convictions . . . when the defendant
has basically engaged in only one course of criminal conduct
directed at one criminal goal,” see HRS § 701-109 cmt. (2014),
the State may still prosecute each offense individually. Accord
State v. Padilla, 114 Hawai#i 507, 517, 164 P.3d 765, 775 (App.
2007). Accordingly, here, the State could charge individual
counts of forgery and a single count of theft, even if HRS § 701-
109(1)(e) might prohibit Yokota from being convicted of both
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offenses.9
Yokota does not offer any reason why the State exceeded
the bounds of its discretion by charging him with theft as a
continuing course of conduct and individual counts of forgery.
Because the plain language of the theft statute allows theft to
be charged as a continuing course of conduct, the circuit court
erred in dismissing Yokota’s theft in the second degree charge as
a matter of law. Instead, we agree with the State that “the
question of whether the individual forgeries were continuous
conduct should be submitted to the trier of fact.” See Matias,
102 Hawai#i at 305, 75 P.3d at 1196.
IV. CONCLUSION
The State may charge defendants with theft on a
continuing course of conduct theory. This is permissible even
when the State also decides to simultaneously charge individual
counts of forgery. Therefore, the ICA did not err in vacating
the circuit court’s “Order Granting Motion to Dismiss Counts VI
9
We also note that the State was not barred from charging forgery as a
continuing course of conduct as a matter of law. As previously noted, HRS §
701-109(1)(e) provides that a defendant may not be convicted of more than one
offense if “[t]he offense is defined as a continuing course of conduct and the
defendant’s course of conduct was uninterrupted, unless the law provides that
specific periods of conduct constitute separate offenses.” (Emphasis added.)
Here, HRS § 708-852, forgery in the second degree, does not explicitly
state that specific acts of forgery shall constitute separate offenses. This
indicates that the State is not barred, as a matter of law, from charging
forgery as a continuing offense. Cf. Arceo, 84 Hawai#i at 19-20, 928 P.2d at
861-62 (precluding sexual assault from being charged as a continuing offense
because the definition of “sexual penetration” explicitly provided that “each
act of sexual penetration shall constitute a separate offense”).
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and VIII of the Amended Felony Information with Prejudice” and
remanding the case for further proceedings.10
Accordingly, we affirm the ICA’s July 26, 2017 judgment
on appeal.
Christian G. Enright /s/ Mark E. Recktenwald
(William H. Jameson, Jr.
with him on the briefs) /s/ Paula A. Nakayama
for petitioner/defendant-
appellee /s/ Sabrina S. McKenna
Brian R. Vincent for /s/ Richard W. Pollack
respondent/plaintiff-appellant
/s/ Michael D. Wilson
10
While not addressed by the parties on certiorari, after the theft
charges were dismissed, Yokota subsequently pleaded no contest to the five
counts of forgery and the one count of unauthorized possession of confidential
personal information. The circuit court found him guilty of those six
charges.
Because we affirm the ICA’s decision to vacate the circuit court’s
dismissal of the theft charges, on remand, the circuit court should carefully
consider any motion to withdraw pleas. See State v. Gomes, 79 Hawai#i 32, 36-
37, 897 P.2d 959, 963-64 (1995). The circuit court should also consider the
applicability of merger pursuant to HRS § 701-109(1)(e). See Matias, 102
Hawai#i at 305-06, 75 P.3d at 1196-97.
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