State v. Terlep

L/-\W L|BRARY
NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
NO. 29624
IN THE INTERMEDIATE COURT OF APPEALS §§
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01= THE sTATE oF HAWAI‘I 513 w
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STATE OF HAWATI, Plaintiff-Appellee, v §§ §§
KEHAULANI TERLEP, Defendant-Appellant 35 *F
§§
APPEAL FROM THE CIRCUIT COURT OF THE THIRD CIRCUIT
(CR. NO. 05-1-299K)
SUMMARY DISPOSITION ORDER
C.J., Foley and Fujise, JJ.)
(By: Nakamura,
Defendant-Appellant Kehaulani Terlep (Terlep) appeals
from the Amended Judgment filed on December 15, 2008 in the
Circuit Court of the Third Circuit1 (circuit court). The circuit
court convicted Terlep of Theft in the Second Degree in violation
of Hawaii Revised Statutes (HRS) § 708-831 (Supp. 2004).
On appeal, Terlep raises the following points of error:
The circuit court erred in admitting the State of
(l)
(the State) Exhibits 482 and 493 into evidence at trial,
Hawafi's
and if Exhibits 48 and 49 had been excludedj Terlep's motion for
judgment of acquittal at the close of the State's case should
have been granted.
(2)
motion for judgment of acquittal at the close of State's case.
The circuit court erred in denying Terlep's oral
Terlep was denied effective assistance of counsel
(3>
because defense counsel failed to call Harold Hall, M.D.,
Yang) as witnesses to
(Dr. Hall) and Henry Yang, M.D., (Dr;
testify to Terlep's mental state.
The Honorable Elizabeth A. Strance presided.
,Exhibit 48 is a Department of Human Services (DHS) transaction
l
history of Terlep's cash benefits from January 1999 through September 2001
2
Exhibit 49 is a DHS transaction history of Terlep's food stamp
3
benefits for the period October 1999 through September 200l.
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(4) Terlep was denied effective assistance of counsel
because defense counsel objected to evidence that could have
discredited the State's key witness. 0
Upon careful review of the record and the briefs
submitted by the parties and having given due consideration to
the arguments advanced and the issues raised by the parties, as
well as the relevant statutory and case law, we conclude that
Terlep's appeal is without merit.
A. STATE'S EXHIBITS 48 AND 49 WERE PROPERLY ADMITTED
PURSUANT TO HAWAII RULES OF EVIDENCE (HRE) RULE
803(b)(6).
Terlep contends the circuit court erred in admitting
State's Exhibits 48 and 49 under HRE Rule 803(b)(6) (l993)
because (l) the State did not produce an employee or
representative of City Corp. or J.P. Morgan to authenticate the
exhibits, (2) the State did not prove the exhibits were produced
in the course of regularly conducted activity at or near the time
of Terlep's alleged criminal activity, (3) and the records do not
identify Terlep other than by name.
The State argues that Wayne Akizaki (Akizaki), as DHS's
EBT4 Project Manager, was qualified to authenticate Exhibits 48
and 49; City Corp. maintained the information in State's Exhibits
48 and 49 as part of its regularly conducted business; Rule
803(b)(6) does not require a party to specify when an exhibit is
compiled or to particularly describe the routines used to compile
the information in an exhibit; and the evidence at trial
established a sufficient nexus between the exhibits and Terlep.
HRE Rule 803(b)(6) provides:
Rule 803 Hearsay exceptions; availability of
declarant immaterial.
(b) Other exceptions .
4 Electronic Benefits Transfer.
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(6) Records of regularly conducted activity. A
memorandum, report, record, or data compilation, in
any form, of acts, events, conditions, opinions, or
diagnoses, made in the course of regularly conducted
activity, at or near the time of the acts, events,
conditions, opinions, or diagnoses, as shown by the
testimony of the custodian or other qualified witness,
unless the sources of information or other
circumstances indicate lack of trustworthiness.5
The commentary to this rule explains:
Paragraph (b)(6) and (7): These exceptions are based
upon Fed. R. Evid. 803(6) and (7) and a prior statute, [HRS]
§ 622-5 (1976) (repealed 19B0) (originally enacted as L
1941, C 2l8, §§ l, 2, 3; am L 1972, c 104, § 2(€)).
However, both the federal rules and the prior Hawaii statute
limited admissibility to records of regularly conducted
business activities, while the present rule has no such
limitation. . . . In any event, the hallmark of reliability
in this area is not the nature of the business or activity
but rather its “regularity and continuity which produce
habits of precision, [the] actual experience of [a] business
in relying upon [the records], [and the] duty to make an
accurate record as part of a continuing job or occupation."
Fed. R. Evid. 803(6), Advisory Committee's Note. A further
safeguard is that preliminary determination of the
trustworthiness of such records is discretionary with the
court.
State v. Fitzwater, 122 Hawafi 354, 227 P.3d 520(2010), is dispositive on the issue of whether State's Exhibits
48 and 49 were properly admitted under Rule 803(b)(6).
Terlep argues that the circuit court improperly
admitted Exhibits 48 and 49 under Rule 803(b)(6). Exhibits 48
and 49 are printouts indicating, respectively, the transactional
histories for financial assistance and for a food stamp account
under the name Kehaulani Terlep. At trial, Akizaki agreed that
Exhibits 48 and 49 were true and correct copies of what he
provided to DHS's investigator, wayne Ayudan. Akizaki testified
that J.P. Morgan had provided him with the printouts. Akizaki
further testified that J.P. Morgan began operating Hawafifs EBT
system in 2002 when it bought out City Corp. E1ectronic Financial
5 HRE § 803(b)(6) was amended in 2002 to permit laying a foundation by
"certification that complies with [HRE] Rule 902(11) or a statute permitting
certification." HRE § 803 (Supp. 2009).
3
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Services, Hawafi's original EBT contractor.6 Akizaki stated
that the EBT system consists of two sub-accounts: one for cash
payments (financial assistance) and one for food stamps.
Akizaki explained that when clients apply for
assistance through DHS, DHS collects the clients' demographic
information (such as name, address, social security number, and
date of birth) and enters this data into its systems (demographic
file). Once DHS determines a client's eligibility, it authorizes
payment and the authorization is entered into an issuance file.
The demographic and issuance files are then transmitted nightly
to J.P. Morgan and uploaded into its system.
Based on this information, J.P. Morgan creates an EBT
account for the client and assigns an EBT card to the account.
When a client swipes the card, J.P. Morgan ensures that the
vendor is authorized to take EBT and verifies the validity of the
card and that there are sufficient funds in the account. The
State required J.P. Morgan to establish a settlement process to
make sure that vendors and ATM owners will be paid on a timely
payment basis and a reconciliation process to ensure that
whatever payments the State authorizes for its clients are
maintained correctly and reported to the State on a timely basis.
Akizaki testified that DHS personnel collect and enter
information on clients into the State's systems as part of DHS's
regularly conducted business. DHS personnel are duty-bound to
accurately and completely enter this information soon after
eligibility is determined. Additionally, the nightly
transmission of demographic and issuance files from DHS to J.P.
Morgan is also regularly conducted. Akizaki explained that it is
part of J.P. Morgan's contractual duty with the State to accept
6 According to Akizaki, the U.S. Department of Agriculture mandated in
the 1980s that all states had to implement an EBT system for the food stamps
program. Because Hawafi is a small state, Hawafi opted in 1996 to join a
coalition of states called the Western States EBT Alliance, WSEA. The
coalition selected City Corp. Electronic Financial Services as its first EBT
contractor.
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the transmitted information and to organize, maintain, and
respond to the information. J.P. Morgan organizes and maintains
this information in accordance with contractually prescribed
'rules. The State offered evidence through Akizaki's testimony
that the same basic procedures and processes used by J.P. Morgan
had been used by the State's prior EBT contractor, City Corp.,
whose EBT operations J.P. Morgan had acquired.
Given this evidence, we conclude that State's Exhibits
48 and 49 were properly admitted as business records pursuant to
Fitzwater.
Akizaki's testimony sufficiently indicates that DHS
incorporated the EBT contractor's EBT accounting into its records
and relied on it. Akizaki testified that DHS relies on the EBT
contractor to "maintain all of the transactions that our clients
do when they use their EBT card." Additionally, the EBT
contractor is required "to submit reports to [DHS] to make sure
that all of the accounting side matches up with all of the
transactions that [DHS] transmitted over to them, and making sure
that all of the accounting side balances out correctly."
Akizaki's testimony also sufficiently indicates indicia
of reliability. The State has a contract with the EBT contractor
that prescribes how the EBT contractor will operate the State's
EBT system. §§§ Fitzwater, 122 Hawafi at 369-70, 227 P.3d at
535-36 (concluding that police officer's testimony did not
adequately establish indicia of reliability because police
officer did not indicate there was any contractual relationship
that would require shop performing speed check on officer's
vehicle to accurately conduct and record speed check.)
Additionally, the State's auditing of the EBT contractor's
accounting strengthens the indicia of reliability.
Under Fitzwater, a proper foundation for the admission
of a business record includes the requirements of Rule 803(b)(6).
Fitzwater, 122 HawaFi at 367-68, 227 P.3d at 533-34. The
State's Exhibits 48 and 49 evidence DHS's "acts" of authorizing
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payments to a cash benefits and food stamp account under the name
of Kehaulani Terlep from January 1999 through September 2001
(cash benefits) and October 1999 through September 2001 (food
stamps). y
Exhibits 48 and 49 were made in the course of regularly
conducted activity. Akizaki testified that the EBT contractor
was contractually bound to maintain client EBT accounts for DHS
on a regular basis. The State presented evidence that the EBT
transactions were done electronically and instantaneously
recorded in the system. 9
The entries in Exhibits 48 and 49 were made at or near
the time of the acts recorded. Terlep alleges that the EBT
contractor compiled the exhibits after 2002 and they therefore
were not made at or near the time of the acts recorded. Terlep
confuses the EBT accounting with the transaction history
printouts. See Potamkin Cadillac Corp. v. B.R.I. Coveraqe Corp.,
38 F.3d 627, 632 (2nd Cir. 1994) ("A business record may include
data stored electronically on computers and later printed out for
presentation in court, so long as the 'original computer data
compilation was prepared pursuant to a business duty in 9
accordance with regular business practice.'") (quoting United
S'Cates v. Hernandez, 913 F.2d 1506, 1512-13 (lOth Cir. 1990),
cert denied, 499 U.S. 908, lll S. Ct. llll (l99l)).
lt is immaterial that no representative from City Corp.
or J.P. Morgan authenticated Exhibits 48 and 49. Akizaki was a
qualified witness pursuant to Fitzwater, 122 Hawafi at 366, 227
P.3d at 532 (noting that "an employee of a business that receives
records from another business can be a qualified witness who can
establish a sufficient foundation for their admission as records
of the receiving business under HRE Rule 803(b)(6)").
Terlep argues that because Exhibits 48 and 49 only
identify Terlep by the name Kehaulani Terlep, “[t]here is
insufficient proof that they are for the same person." we
disagree.
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At trial, Kelly Okoji (Okoji), a State eligibility
worker, testified that she interviewed Terlep for financial and
food stamp assistance on February 1, 2000 and February 12, 2001.
Okoji testified that at the interview she verified Terlep's
identity by examining Terlep's driver's license.7 Okoji further
testified that after she interviews a client, she determines
eligibility and inputs the client's information into DHS systems
accurately and completely.
At trial, Lorene Higa (Higa), a DHS eligibility worker,
testified that she reviewed Terlep's case file for trial. Higa
explained that State's Exhibit 8 was an Application for Financial
and Food Stamps Assistance signed by Kehaulani Terlep and'
submitted to DHS in February 1999. Higa further explained that
Jane Nagano3 received the application and determined Terlep's
eligibility accordingly. Higa testified that typically after DHS
receives applications, DHS workers conduct interviews and input
information accurately and completely into DHS systems.
On cross-examination, Terlep admitted that she had
applied for welfare, renewed her applications, and filed monthly
eligibility reports as Okoji and Higa had testified.
This testimony indicates that Terlep communicated
eligibility information to DHS and DHS workers accurately and
completely transferred this information into DHS systems. we
note that the EBT contractor accepts this information, as
transmitted, and thereupon creates the client EBT account. We
also note that the EBT contractor manages these accounts
according to prescribed contractual rules and that DHS audits the
EBT contractor's accounting.
Given the weight of this testimony, we cannot conclude
that there is an insufficient nexus between State Exhibits 48 and
7 Okoji was able to identify Terlep in court.
8 Jane Nagano's name is stamped into the box entitled “WORKER'S NAME"
On Terlep's "APPLICATION FOR FINANCIAL AND FOOD STAMPS ASSISTANCE" (Stat€'S
Exhibit 8). She is a DHS eligibility worker.
7
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49 and Terlep just because they only identify Terlep by the name
"Kehaulani Terlep."
B. THE CIRCUIT COURT PROPERLY DENIED TERLEP'S MDTION
FOR JUDGMENT OF ACQUITTAL.
Terlep contends the circuit court erred in denying her
oral motion for judgment of acquittal because State's Exhibits 48
and 49 did not meet the requirements of HRE 803(b)(6) and the
State presented no proof that Terlep received DHS payments.
Because we conclude that State's Exhibits 48 and 49 did meet the
requirements for admission under HRE 803(b)(6), we reject
Terlep's first point. 9
For her second point, Terlep argues that
assuming arguendo DHS made the aforesaid payments, there was
no evidence at the close of the State's case that [Terlep]
had received the payments. There was no evidence that the
payments were mailed to [Terlep]. And, if payments were
made by direct deposit, to which bank, to which account.
There was nothing to connect the account of [Terlep], if
any.
This argument is without merit.
The State's case-in-chief established the elements of
Theft in the Second Degree, HRS § 708-831, such that "a
reasonable mind might fairly conclude guilt beyond a reasonable
doubt." State v. HiCks, ll3 Hawafi 60, 69, 148 P.3d 493, 502
(2006) (quoting State v. Maldonado, 108 HawaFi 436, 442, 121
P.3d 90l, 907 (2005)).
HRS § 708-831 provides in relevant part:
§708~831 Theft in the second degree. (1) A person
commits the offense of theft in the second degree if the
person commits thefts
(b) Of property or services the value of which
exceeds $300[.]
HRS § 708-830 (1993) defines "theft" in relevant part:
_ §708-803 Theft. A person commits theft if the person
does any of the following: .
(2) Property obtained or control exerted through
deception. A person obtains, or exerts control
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over, the property of another by deception with
intent to deprive the other of the property.
The evidence indicates that Terlep exerted control over
the property of another from January 1, 1999 through
September 30, 2001. Higa reviewed the DHS investigation on
Terlep, the overpayments calculated against Terlep, and Terlep's
public assistance file at DHS. Higa determined that Terlep was
ineligible for the assistance she received in January 1999
because she began living with Cabatbat in the same house.9
Cabatbat's earnings from Davidson Construction increased Terlep's
total household income and resulted in an overpayment to Terlep.
Higa further determined that Terlep's ineligibility extended to
September 30, 2001, when her case closed.”
From January 1999 to September 30, 2001, Terlep
received financial and food stamp assistance to which she was not
entitled. The amount Terlep received over this period exceeded
$300.
Additionally, Terlep engaged in deception to acquire
benefits to which she was not entitled over her ineligibility
p€riOd. HRS § 708-800 (1993) prOVideS:
§708-800 Definitions of terms in this chapter.
"Deception" occurs when a person knowingly:
(1) Creates or confirms another's impression which
is false and which the defendant does not
believe is true;
(2) Fails to correct a false impression which the
person previously has created or confirmed[.]
9 Higa based her determination on Terlep's May 14, 2003 MOTHER'S
DECLARATION REGARDING CUSTODY, wherein Terlep affirmatively declares under
penalty of perjury that she reunited with Cabatbat in January 1999 and they
remained together until they separated in December 2001. On the same form,
Terlep identifies Cabatbat as the father of her two children.
w Terlep's case closed because she became employed by Clinical
Laboratories and, as a result, her total household income was in excess of the
eligibility limits.
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Okoji testified that she interviewed Terlep for
financial and food stamp assistance on February 1, 2000 and
February 12, 2001. Okoji explained at trial that, as part of the
interview process, she informs applicants of their rights and
responsibilities, which include the responsibility to provide DHS
with accurate and complete information. Okoji testified that in
spite of this advisement, Terlep did not disclose in her initial
interview or her corresponding application that Cabatbat was
living with Terlep and her child.
Okoji further testified that none of Terlep's Monthly
Eligibility Report Forms (MERFs) from January 2000 to January
2001 indicated that Cabatbat was living in the household.
Additionally, in her second interview with Okoji on February 12,
2001, Terlep did not reveal that Cabatbat was living with her.
Higa testified that none of Terlep's MERFs from
December 1998 through December 1999 indicated that Cabatbat was
living with Terlep.
Okoji and Higa's testimonies provide overwhelming
evidence of Terlep's deception.
Terlep engaged in this deception "with intent to
deprive the other of the property." HRS § 708-830(2). Both
Terlep's Applications for Financial and Food Stamps Assistance
and her MERFs contain explicit warnings about engaging in
dishonest conduct, including hiding information. Furthermore, at
trial, Terlep admitted that having Cabatbat live with her would
impact her welfare eligibility:
Q. [The State:] Right. And that if you were living
together and receiving welfare, that whatever income william
Cabatbat would have brought into the household, that would
have had to have been calculated to determine whether you
were eligible for welfare or not; isn't that correct?
A. [Terlep:] If he were living in the household, yes.
lO
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C. TERLEP WAS NOT DEPRIVED OF EFFECTIVE ASSISTANCE OF
COUNSEL.
Terlep contends she was denied effective assistance of
counsel because defense counsel should have called Drs. Hall and
Yang to testify about Terlep's mental condition. Terlep argues
that their testimonies would have addressed whether Terlep formed
the requisite intent to commit theft under the circumstances.“_
when reviewing a claim of ineffective assistance of
counsel, [the appellate court] looks at whether defense
counsel's assistance was within the range of competence
demanded of attorneys in criminal cases. The defendant has
the burden of establishing ineffective assistance of counsel
and must meet the following two-part test: 1) that there
were specific errors or omissions reflecting counsel's lack
of skill, judgment, or diligence; and 2) that such errors or
omissions resulted in either the withdrawal or substantial
impairment of a potentially meritorious defense. To satisfy
this second prong, the defendant needs to show a possible
impairment, rather than a probable impairment, of a
potentially meritorious defense. A defendant need not prove
actual prejudice.
State V. WakiSaka, lO2 HaWafi 504, 513-l4, 78 P.3d 3l7, 326-27
(2003) (internal quotation marks, citations, and footnote
omitted).
The State filed a motion for a mental examination "to
determine whether [Terlep] is fit to proceed pursuant to [HRS
§] 704-404."” The circuit court received reports from
Dr. Cunningham, Dr. Hall, and Dr. Yang. The reports unanimously
expressed the opinion that Terlep was fit to proceed.
ll These “difficult" circumstances include the effect of Cabatbat's
child support payments on Terlep's intent, the State's confusion in wrongly
charging Terlep for the two months of assistance to which she was entitled,
the State's confused reliance on DHS forms as a basis for the charge against
Terlep, and Terlep's "long psychiatric history."
12 HRs 704-404(1) (i993> provides:
§704-404 Examination of defendant with respect to physical
or mental disease, disorder, or defect. (1) whenever the
defendant has filed a notice of intention to rely on the defense
of physical or mental disease, disorder, or defect excluding
responsibility, or there is reason to doubt the defendant's
fitness to proceed, or reason to believe that the physical or
mental disease, disorder, or defect of the defendant will or has
become an issue in the case, the court may immediately suspend all
further proceedings in the prosecution. »
ll
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Terlep characterizes the reports as "sympathetic" and
argues that "[i]t was a serious mistake not to call the doctors
as witnesses [because] [g]iven these circumstances the doctors[']
reports would have helped [Terlep's] case."
In the instant case, we recognize that the record
contains reports from each of the three doctors who conducted
Terlep's mental examination. Terlep cites excerpts from two of
the reports, purportedly addressing her emotional mental
instability, as "reliable and [to] show what the witnesses would
have said." However, all three reports unanimously expressed the
opinion that Terlep was fit to proceed,
There is no evidence suggesting that defense counsel's
decision not to call Drs. Yang and Hall was a result of "a
failure to conduct a minimal investigation." State v. Richie, 88
HaWaFi 19, 40 n.16, 960 P.2d l227, 1248 n.16 (1998).
"The decision whether to call witnesses in a criminal
case is normally a matter within the judgment of counsel and,
accordingly, will rarely be second-guessed by judicial 1
hindsight." State v. Aplaca, 74 Haw. 54, 70, 837 P.2d 1298, 1307
(1992) (internal quotation marks and citation omitted).
viewing defense counsel's assistance, as a whole, we
cannot say that the decision not to call Drs. Yang and Hall as
witnesses was not "within the range of competence demanded of
attorneys in criminal cases." Richie, 88 Hawafi at 39, 960 P.2d
at 1247 (internal quotation marks and citation omitted).
Terlep also argues that she was denied effective
assistance of counsel because defense counsel failed to discredit
Cami1le Hauanio (Hauanio) at trial. Terlep contends:
By objecting to the [State's] questioning concerning
witness HAUANIO's snooping on [Ter1ep], given that as the
court stated HAUANIO was the only truthful witness, defense
counsel deprived [Terlep] of the opportunity to discredit
HAUANIO. This was a potentially meritorious point. witness
HAUANIO was not reliable. The court, which singled HAUANIO
out as being credible, could have been dissuaded had defense
counsel pursued cross-examination of witness HAUANIO on this
point.
12
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we decline to second-guess defense counsel's decision
to object to rather than cross-examine Hauanio on her "snooping"
for information. Richie, 88 Hawafi at 39, 960 P.2d at 1247
(citing to American Bar Association Standards for Criminal
Justice--Prosecution Function and Defense Function, Standard 4-
5.2 (3d ed. 1993), which includes “whether and how to conduct
cross-examination" as useful guidance for determining which
decisions are left to counsel's discretion).
viewing defense counsel's assistance, as a whole, we
cannot say that it was not "within the range of competence
demanded of attorneys in criminal cases. Richie, 88 HawaFi at
39, 960 P.2d at 1247.
Therefore,
IT IS HEREBY ORDERED that the Amended Judgment filed on
December 15, 2008 in the Circuit Court of the Third Circuit is
affirmed.
DATED: Honolulu, Hawafi, September 21, 2010.
On the briefs:
John L. Olson
for Defendant-Appellant. éZ;Ezr¢Z{_ ;%:éé `
Lawrence A. Goya, Chief Judge
Senior Deputy Attorney Genera1,
for Plaintiff-Appellee.
489/r2 "'
Associate Judge
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