State v. Maniaci

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
24-FEB-2023
08:19 AM
Dkt. 82 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
STATE OF HAWAI#I, Plaintiff-Appellee,
v.
CAROL MANIACI, Defendant-Appellant
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CRIMINAL NO. 1CPC-XX-XXXXXXX)
SUMMARY DISPOSITION ORDER
(By: Ginoza, Chief Judge, Leonard and Hiraoka, JJ.)
Defendant-Appellant Carol Maniaci appeals from the
"Judgment of Conviction and Probation Sentence" entered by the
Circuit Court of the First Circuit on September 26, 2018.1 For
the reasons explained below, we vacate in part the Judgment of
Conviction and remand for further proceedings consistent with
this summary disposition order.
On April 24, 2017, Maniaci assaulted two Saks Fifth
Avenue employees who were attempting to detain her after she
allegedly shoplifted a handbag from the store. On April 26,
2017, Maniaci was charged by felony information and non-felony
complaint with Theft in the Second Degree in violation of Hawaii
1
The Honorable Glenn J. Kim presided.
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Revised Statutes (HRS) § 708-83l(l)(b)2 and two counts of Assault
in the Third Degree. Only the theft charge is at issue in this
appeal.
Jury trial was set for Monday, April 16, 2018. Motions
in limine were heard on April 13, 2018 (the Friday before trial).
When the hearing began, Maniaci orally moved to dismiss. She
challenged the sufficiency of the theft charge, citing State v.
Gaub, No. CAAP-XX-XXXXXXX, 2017 WL 213153 (Haw. App. Jan. 18,
2017) (mem.). The circuit court was familiar with the Gaub
memorandum opinion, but the deputy prosecuting attorney (DPA) was
not. The circuit court called a short recess to allow the DPA to
read the case.
When proceedings resumed, the State orally moved to
amend the theft charge. The circuit court granted leave to
amend. An amended information and complaint was filed later that
day.3
On Monday, April 16, before jury selection began, the
circuit court sua sponte reconsidered its decision:
So actually the way the State originally charged
[(theft in the second degree)] . . . is correct.
So I'm going to reconsider my ruling. I'm striking
the amended information filed on April 13th . . . . I'm
going to reinstate the -- the felony information which was
filed back on April 26, 2017, because as far as I'm
concerned, it's correct . . . . And I'm going to deny the
original defense motion to dismiss on different grounds
now.[4]
2
HRS § 708-831 (Supp. 2016) provides, in relevant part:
(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 $750[.]
3
Only the theft count was amended.
4
The record on appeal — although clear about the oral motions and
rulings — does not contain written orders denying Maniaci's oral motion to
dismiss, granting the State's oral motion to amend or the reconsideration of
(continued...)
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On April 19, 2018, the jury found Maniaci guilty as
charged on all counts of the original information and complaint.
The Judgment of Conviction was entered on September 26, 2018.
This appeal followed.
Maniaci raises four points of error. Two are
dispositive.
1. Maniaci contends that the circuit court erred by
denying her motion to dismiss, because the felony information
failed to set forth all essential elements of the theft charge.
This presents a question of law reviewed de novo under the
right/wrong standard. State v. Jardine, 151 Hawai#i 96, 99, 508
P.3d 1182, 1185 (2022).
Count 1 of the original information alleged:
On or about April 24, 2017 in the City and County of
Honolulu, State of Hawaii, CAROL MANIACI did conceal or take
possession of goods or merchandise, the value of which
exceeds Seven Hundred Fifty Dollars ($750.00), the property
of Saks Fifth Avenue LLC, a store or retail establishment,
with intent to defraud, thereby committing the offense of
Theft in the Second Degree in violation of Section
708-83l(l)(b) of the Hawaii Revised Statutes, and she is
subject to sentencing under Section 708-833.5 of the Hawaii
Revised Statutes.
(Emphasis added.)
HRS § 708-833.5 (Supp. 2016) provides, in pertinent
part:
A person convicted of committing theft by means of
shoplifting as defined in section 708-830 shall be sentenced
to the following minimum fines[.]
HRS § 708-830 (2014) provides, in relevant part:
A person commits theft if the person does any of the
following:
. . . .
(8) Shoplifting.
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(...continued)
the oral order, or striking the amended information and complaint. The
parties agree that trial proceeded based upon the original information and
complaint.
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(a) A person conceals or takes possession of
the goods or merchandise of any store or
retail establishment, with intent to
defraud.
(Emphasis added.)
"Intent to defraud" is defined as:
(1) An intent to use deception to injure another's
interest which has value; or
(2) Knowledge by the defendant that the defendant is
facilitating an injury to another's interest which has
value.
HRS § 708-800 (2014) (emphasis added).
In State v. Shinyama, 101 Hawai#i 389, 391, 69 P.3d
517, 519 (2003), the supreme court held that
the "intent to defraud" component of second degree theft by
shoplifting, as defined by HRS § 708–800 (1993), prescribes
two alternative means of establishing the state of mind
requisite to the offense of second degree theft by
shoplifting, the circuit court plainly erred in failing to
instruct the jury as to the alternative states of mind
requisite to the charged offense.
Id. at 391, 69 P.3d at 519 (footnote omitted).
Shinyama concerned an erroneous jury instruction, not
the sufficiency of a charge. However, in State v. Garcia, 152
Hawai#i 3, 518 P.3d 1153 (2022), the supreme court held that an
information that did not define "intent to defraud," did not
specify the states of mind for forgery in the second degree, in
violation of article I sections 5 and 14 of the Hawai#i
Constitution.5 Id. at 7, 518 P.3d at 1157. Although not stated
in the supreme court's opinion, the elements of forgery in the
second degree at issue in Garcia were:
5
Article I, section 5 of the Hawai#i Constitution
(right to due process) and article I, section 14 of
the Hawai#i Constitution (right "to be informed of the
nature and cause of the accusation") inspire the
criteria we use to measure the adequacy of a charge:
charging documents must include the elements of an
offense and sufficiently describe the nature and cause
of the accusation.
Garcia, 152 Hawai#i at 6, 518 P.3d at 1156 (citation omitted).
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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, or fraudulently encodes the
magnetic ink character recognition numbers, 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.
HRS § 708-852(1) (2014) (emphasis added).
In Garcia, the supreme court held that "[i]ntent is a
state of mind, not an element." Id. at 7, 518 P.3d at 1157. The
supreme court then held:
an intentional state of mind — as HRS § 708-800 makes clear
— is not forgery's only state of mind. The intent to
defraud element may also be proved if a defendant knowingly
"facilitat[es] an injury to another's interest which has
value."
. . . .
Here, because the information does not define intent
to defraud, and thus does not specify the states of mind for
forgery in the second degree, the information violates
article I sections 5 and 14 of the Hawai#i Constitution.
Id. (footnote omitted).
"Intent to defraud" was also required to prove the
theft charge against Maniaci. Under Garcia and Shinyama, the
theft charge against Maniaci should have defined or specified
"intent to defraud" — "(1) [a]n intent to use deception to injure
another's interest which has value; or (2) [k]nowledge by the
defendant that the defendant is facilitating an injury to
another's interest which has value." Garcia, 152 Hawai#i at 4,
518 P.3d at 1154; Shinyama, 101 Hawai#i at 397, 69 P.3d at 525.
The shoplifting charge against Maniaci did not define or specify
"intent to defraud" and thus did not sufficiently allege the
applicable states of mind. Accordingly, the circuit court erred
by denying Maniaci's motion to dismiss.
2. We must also address Maniaci's contention that the
evidence was insufficient to support the jury's finding of guilty
on the theft charge. See State v. Davis, 133 Hawai#i 102, 120,
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324 P.3d 912, 930 (2014) (holding that double jeopardy clause of
Hawai#i Constitution requires addressing defendant's claim of
insufficiency of the evidence before remanding for new trial
based on defective charge). When reviewing the sufficiency of
evidence on appeal, we apply the following deferential standard
of review:
[E]vidence adduced in the trial court must be
considered in the strongest light for the prosecution
when the appellate court passes on the legal
sufficiency of such evidence to support a conviction;
the same standard applies whether the case was before
a judge or jury. The test on appeal is not whether
guilt is established beyond a reasonable doubt, but
whether there was substantial evidence to support the
conclusion of the trier of fact.
State v. Kalaola, 124 Hawai#i 43, 49, 237 P.3d 1109, 1115 (2010)
(citation omitted). "'Substantial evidence' . . . is credible
evidence which is of sufficient quality and probative value to
enable a person of reasonable caution to support a conclusion."
Id.Maniaci argues that a photograph of the handbag with
its price tag (State's Exhibit 9) and the register receipt for
the handbag (State's Exhibit 31) were hearsay, inadmissible to
prove the handbag's value. She did not make a hearsay objection
at trial. Her argument is waived. State v. Crisostomo, 94
Hawai#i 282, 290, 12 P.3d 873, 881 (2000) ("A hearsay objection
not raised or properly preserved in the trial court will not be
considered on appeal.") (citation omitted).6
6
If Maniaci had objected at trial based on hearsay, her objection
should have been overruled. At the time of Maniaci's alleged offense HRS
§ 708-830(8) (2014) provided, in relevant part:
The unaltered price or name tag or other marking on goods or
merchandise, duly identified photographs or photocopies
thereof, or printed register receipts shall be prima facie
evidence of value and ownership of such goods or
merchandise. Photographs of the goods or merchandise
involved, duly identified in writing by the arresting police
officer as accurately representing such goods or
merchandise, shall be deemed competent evidence of the goods
or merchandise involved and shall be admissible in any
proceedings, hearings, and trials for shoplifting to the
(continued...)
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Maniaci also argues that "there was no evidence and/or
testimony that [she] intended or knew that the value" of the
handbag exceeded $750, because a Saks Fifth Avenue employee
testified that there was no sign with a price where the handbag
was displayed, and that "[m]ost of the time" the price tag would
"fall inside the bag." However, State's Exhibits 9 and 31 were
"prima facie evidence that [Maniaci] believed or knew the
[handbag] to be of that value." HRS § 708-801(4) (2014).
In addition, as the supreme court has explained:
Given the difficulty of proving the requisite state of mind
by direct evidence in criminal cases, we have consistently
held that proof by circumstantial evidence and reasonable
inferences arising from circumstances surrounding the
defendant's conduct is sufficient. Thus, the mind of an
alleged offender may be read from his acts, conduct and
inferences fairly drawn from all the circumstances.
State v. Batson, 73 Haw. 236, 254, 831 P.2d 924, 934 (1992)
(cleaned up). Evidence was presented that Maniaci removed the
handbag — with a black sensor attached to it — from the display
stand, went into a fitting room and a restroom, and no handbag
was found in the fitting room or restroom after Maniaci left.
Maniaci walked past the cashiers and exited the store. When
Maniaci was confronted by Saks Fifth Avenue employees outside the
store, an object similar to a handbag was felt near Maniaci's
waistband. While the employees were escorting Maniaci to the
security office, a struggle occurred and a black dust bag
containing the handbag fell to the ground. The dust bag is a
cloth bag, kept inside the handbag, that protects the handbag
from dust, debris, and nicks. Thus, even if the price tag was
inside the handbag, a reasonable jury could conclude that Maniaci
saw the price tag when she retrieved the dust bag from inside the
handbag. The handbag's black sensor was wrapped in aluminum
foil.
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(...continued)
same extent as the goods or merchandise themselves.
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There was substantial evidence from which the jury
could conclude that Maniaci knew or intended that the value of
the handbag she shoplifted exceeded $750. Maniaci makes no other
arguments about the sufficiency of the evidence.
Based upon the foregoing, we vacate in part the
"Judgment of Conviction and Probation Sentence" entered by the
circuit court on September 26, 2018, as to Count 1 for
shoplifting only, and remand for the circuit court to dismiss
Count 1 without prejudice.
DATED: Honolulu, Hawai#i, February 24, 2023.
On the briefs:
/s/ Lisa M. Ginoza
Randal I. Shintani, Chief Judge
for Defendant-Appellant.
/s/ Katherine G. Leonard
Sonja P. McCullen, Associate Judge
Deputy Prosecuting Attorney,
City and County of Honolulu, /s/ Keith K. Hiraoka
for Plaintiff-Appellee. Associate Judge
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