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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