State v. Shaw.

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Electronically Filed
Supreme Court
SCWC-XX-XXXXXXX
01-OCT-2021
08:50 AM
Dkt. 17 OP

IN THE SUPREME COURT OF THE STATE OF HAWAIʻI

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_____________________________________________________________

STATE OF HAWAIʻI,
Respondent/Plaintiff-Appellee,

vs.

SUSAN E. SHAW,
Petitioner/Defendant-Appellant.
________________________________________________________________

SCWC-XX-XXXXXXX

CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-XX-XXXXXXX; 1CPC-XX-XXXXXXX)

OCTOBER 1, 2021

RECKTENWALD, C.J., NAKAYAMA, McKENNA, AND WILSON, JJ.,
AND INTERMEDIATE COURT OF APPEALS JUDGE NAKASONE,
ASSIGNED BY REASON OF VACANCY

OPINION OF THE COURT BY WILSON, J.

I. INTRODUCTION

This case arises from Petitioner/Defendant-Appellant

Susan E. Shaw’s (“Shaw”) five-year prison sentence and

conviction for Computer Fraud in the Third Degree (“Computer

Fraud 3”) and Fraudulent Use of a Credit Card (“Credit Card
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Fraud”). Shaw appealed her Judgment of Conviction and Sentence

to the Intermediate Court of Appeals (“ICA”). The ICA vacated

the Circuit Court of the First Circuit’s1 (“circuit court”)

Judgment of Conviction and Sentence and remanded the case to the

circuit court for further proceedings.

Shaw raises four primary points of error and alleges

that the ICA erred: (1) when it held that the State of Hawaiʻi

(the “State”) need not allege that Shaw acted pursuant to a

scheme or course of conduct for Computer Fraud 3 in the

indictment; (2) when it held that the circuit court (a) did not

err in instructing the jury on the definition of “inference” and

(b) did not err in instructing the jury on the elements of

Computer Fraud 3; (3) when it held that the circuit court did

not err in denying her Motion to Dismiss with Prejudice; and

(4) when it failed to address the issues related to (a) the

sufficiency of evidence, (b) the admission of unsworn hearsay

evidence, and (c) the numerous prejudicial evidentiary errors.

We hold that the ICA did not err when it held that

aggregation of multiple transactions under Computer Fraud 3 is

permissible. We further hold that the indictment was defective

with respect to Count I, Computer Fraud 3, and that the denial

of Shaw’s Motion to Dismiss the Indictment was error.

1 The Honorable Faʻauuga L. Toʻotoʻo presided.

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Accordingly, we vacate the circuit court’s order denying Shaw’s

Motion to Dismiss the Indictment for Count I, and remand with

instructions to dismiss Count I without prejudice. Because the

indictment for Count I, Computer Fraud 3 is dismissed without

prejudice, we do not address Shaw’s other points of error.

II. BACKGROUND

The charges against Shaw arise from allegations that

between January 16, 2017, through and including May 18, 2017,

Shaw falsely inflated customer tips for 105 customers, totaling

$717.35, at the restaurant where she worked as a server. Shaw

was charged with one count of Computer Fraud 3, in violation of

Hawaiʻi Revised Statutes (“HRS”) § 708-891.6 (2014), and one

count of Credit Card Fraud, in violation of HRS § 708-8100(1)(c)

(2014).2 After a jury trial, Shaw was convicted on both counts.

2 The August 15, 2017 indictment states:

The Grand Jury charges:
COUNT I: On or about January 16, 2017, through and
including May 18, 2017, in the City and County of Honolulu,
State of Hawaii, Susan E. Shaw, did knowingly access a
computer, computer system, or computer network with the
intent to commit the offense of theft in the third degree,
thereby committing the offense of Computer Fraud in the
Third Degree in violation of Section 708-891.6 of the
Hawaii Revised Statutes.
A person commits the offense of theft in the third
degree if she intentionally obtains and exerts control over
property of another, the value of which exceeds Two Hundred
and Fifty Dollars ($250.00), with intent to deprive the
other of property valued in excess of Two Hundred and Fifty
Dollars ($250.00). Sections 708-832(a)(a) and 708-830(1)
of the Hawaii Revised Statutes. (HPD Report Number
17189819-002). Count I related to the access and use of a
computer, to with a “point of sale computer terminal”, with

(continued . . .)

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Prior to the jury trial, Shaw filed a Motion to

Dismiss with Prejudice on the basis that the State failed to

adduce sufficient evidence to establish probable cause for

either of the two counts at the grand jury proceedings because

the State excluded elements of the offense. Additionally, Shaw

contended that Computer Fraud 3 could only be prosecuted based

on a single victim of theft, and Credit Card Fraud could only be

prosecuted based on the use of a single credit card or credit

card number and a single credit card victim. Shaw argued that

if HRS § 708-801(6) allows aggregation of theft amounts from a

single victim or multiple victims, the State failed to adduce

evidence that Shaw acted pursuant to a single scheme or course

of conduct required for aggregation. The circuit court denied

(continued . . .)

intent commit [sic] theft of money valued in excess of
$250.00, and the defendant did, in fact, so obtain money
valued in excess of $250.00.
COUNT II: On or about January 16, 2017, through and
including May 18, 2017, in the City and County of Honolulu,
State of Hawaii, Susan E. Shaw, with intent to defraud the
issuer, or another person or organization providing money,
services, or anything of value, or any other person, did
use credit card numbers without the consent of the
cardholders for the purpose of obtaining money or anything
else of value, and the value of all money and other things
of value so obtained exceeded Three Hundred Dollars
($300.00) in any six-month period, thereby committing the
offense of Fraudulent Use of Credit Card, in violation of
Sections 708-8100(1)(c) of the Hawaii Revised Statutes.
(HPD Report no 17-189819-003). Count II related to the use
of credit card numbers, without the cardholders’ consent,
for the purpose of obtaining money valued in excess of
$300.00 during the time period specific herein, a period of
less than six months, and the defendant di, in fact, so
obtain money valued in excess of $300.00

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Shaw’s motion, finding that “overwhelming evidence” supported

the indictment.

On July 30, 2018, Shaw appealed to the ICA. Relevant

to this appeal, Shaw argued that the indictment was fatally

defective for failing to allege that Shaw acted pursuant to a

scheme or continuing course of conduct3 and that the circuit

court erred in denying Shaw’s Motion to Dismiss with Prejudice

because the State failed to adduce sufficient evidence to

establish probable cause that Shaw used a computer to steal more

than $250.00 from a single victim. See HRS § 708-891.6 (“A

person commits the offense of computer fraud in the third degree

if the person knowingly accesses a computer, computer system, or

computer network with the intent to commit the offense of theft

in the third or fourth degree.”); HRS § 708-832(1)(a) (2016) (“A

person commits the offense of theft in the third degree if the

person commits theft . . . [o]f property or services the value

of which exceeds $250[.]”).

3 The indictment in Count I read as follows:

COUNT I: On or about January 16, 2017, through and
including May 18, 2017, in the City and County of Honolulu,
State of Hawaii, Susan E. Shaw, did knowingly access a
computer, computer system, or computer network with the
intent to commit the offense of theft in the third degree,
thereby committing the offense of Computer Fraud in the
Third Degree in violation of Section 708-891.6 of the
Hawaii Revised Statutes.

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The ICA vacated the circuit court’s Judgment of

Conviction and Sentence, vacated Shaw’s conviction for Credit

Card Fraud under Count II, and remanded the case for a new trial

on Count I, Computer Fraud 3. The ICA concluded that the

indictment for Count I was legally sufficient, and that Shaw

failed to show, under Motta/Wells,4 Count I could not be

construed to charge Computer Fraud 3. The ICA also concluded

that Shaw failed to show that she suffered prejudice from the

State’s failure to allege a scheme or course of conduct in Count

I. Additionally, the ICA held that the State was not barred

from aggregating multiple alleged instances of theft in charging

Shaw with Computer Fraud 3:

In Count I, Shaw was charged with Computer Fraud 3, which
requires an allegation that the charged individual
“knowingly accesse[d] a computer, computer system, or
computer network with the intent to commit the offense of
theft in the third or fourth degree.” HRS § 708-891.6
(emphasis added). Thus, because Computer Fraud 3 is
predicated on theft in the third or fourth degree, it
follows that Computer Fraud 3 may also be charged as a
continuing course of conduct.

The ICA further held that the indictment as a whole charged Shaw

with Computer Fraud 3 under a continuing course of conduct

theory because both counts referred to the same four-month time

period when the alleged crimes occurred.

4 An appellate court will “not reverse a conviction based upon a
defective indictment unless the defendant can show prejudice or that the
indictment cannot within reason be construed to charge a crime.” State v.
Motta, 66 Haw. 89, 91, 657 P.2d 1019, 1020 (1983).

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For the Credit Card Fraud charge, the ICA held that

the circuit court erred when it failed to dismiss Count II for

lack of sufficient evidence to establish probable cause because

the plain language of HRS § 708-8100(2) did not allow the

offense of Credit Card Fraud to be prosecuted as a class C

felony based on an aggregation of the values of multiple

transactions involving more than one credit card or credit card

number. In light of this holding, the ICA held that the circuit

court erred when it failed to dismiss Count II.5 For Count I,

Computer Fraud 3, the ICA held that Shaw’s challenge for lack of

probable cause was rendered moot when she was subsequently

convicted at trial, and held that there were no “unusual

circumstances” in this case to warrant a review of probable

cause. But, the ICA held that Shaw’s conviction for Computer

Fraud 3 must be vacated and remanded for a new trial because the

instruction regarding Computer Fraud 3 did not submit to the

jury the factual question of whether Shaw engaged in one scheme

or course of conduct.

Shaw argues before this court that the ICA erred when

it held that the State need not allege scheme in the indictment

5 The ICA’s dismissal of Count II, Credit Card Fraud, was not
appealed to this court and will not be addressed in this opinion’s
discussion.

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and that the circuit court did not err in denying Shaw’s Motion

to Dismiss with Prejudice.

III. STANDARDS OF REVIEW

A. 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). We follow 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).

B. Motion to Dismiss Indictment

We review de novo a circuit court’s order denying a

motion to dismiss an indictment based on sufficiency of the

evidence to support the indictment. State v. Taylor, 126 Hawaiʻi

205, 215, 269 P.3d 740, 750 (2011).

In reviewing the sufficiency of the evidence to establish
probable cause before the grand jury, every legitimate
inference that may be drawn from the evidence must be drawn
in favor of the indictment and neither the trial court nor
the appellate court on review may substitute its judgment
as to the weight of the evidence for that of the Grand
Jury. The evidence to support an indictment need not be
sufficient to support a conviction.

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Id. (quoting State v. Ganal, 81 Hawaiʻi 358, 367, 917 P.2d 370,

379 (1996)).

IV. DISCUSSION

A. The ICA did not err when it held that multiple transactions
can be aggregated pursuant to HRS § 708-801(6) for Computer
Fraud 3.

Shaw contends that aggregation of multiple

transactions pursuant to HRS § 708-801(6) is impermissible for

proving Computer Fraud 3. The ICA was correct in its

determination that aggregation of multiple transactions pursuant

to HRS § 708-801(6) is permissible for Computer Fraud 3.

However, we respectfully disagree with the ICA’s reasoning.

The ICA concluded that the theft statute supports

aggregation of multiple transactions for Computer Fraud 3. It

is true that this court has previously held that theft may be

charged under a continuing course of conduct theory:

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).

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

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explicitly considered that theft could be charged on a
continuing course of conduct theory.

State v. Yokota, 143 Hawai‘i 200, 205-06, 426 P.3d 424, 429-30

(2018).

However, that Computer Fraud 3 is “predicated” on

theft in the third or fourth degree does not answer the question

of whether Computer Fraud 3 can be charged as a continuing

course of conduct. This is because Computer Fraud requires a

specific intent to commit theft in the third or fourth degree.

The continuing offense doctrine asks “whether the individual

acts are prohibited, or the course of action which they

constitute.” Blockburger v. United States, 284 U.S. 299, 302

(1932) (emphasis added). The continuous offense doctrine

therefore turns on whether the legislature envisioned that the

conduct of the offense could constitute a continuous course of

action. Yokota, 143 Hawaiʻi at 205, 426 P.3d at 429 (“[T]he test

to determine whether a crime may be charged on a continuous

conduct theory is whether the language, structure, and purpose

of the statute reveals a legislative intent to criminalize

continuing conduct.” (quoting State v. Decoite, 132 Hawaiʻi 436,

438, 323 P.3d 80, 81 (2014))). Whether the proscribed conduct

“is statutorily defined as an uninterrupted and continuing

course of conduct, or manifests a plain legislative purpose to

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be treated as such, or both” is critical to the continuing

offense doctrine. Arceo, 84 Hawaiʻi at 19, 928 P.2d at 861.

If the statute “comprehend[s] acts that essentially

are of a transitory nature or brief duration,” then the

legislature likely did not contemplate the crime to be

continuing; but if the act proscribed by the statute “describes

an ongoing course of conduct,” that “connotes a legislative

design to make an aspect of [the crime] continuing[.]” State v.

Temple, 65 Haw. 261, 267, 650 P.2d 1358, 1362 (1982). Here,

Computer Fraud 3 is defined as follows: “A person commits the

offense of computer fraud in the third degree if the person

knowingly accesses a computer, computer system, or computer

network with the intent to commit the offense of theft in the

third or fourth degree.” HRS § 708-891.6 (emphasis added).

“‘Access’ means to gain entry to, instruct, communicate with,

store data in, retrieve data from, or otherwise make use of any

resources of a computer, computer system, or computer network.”

HRS § 708-890. At least some of these acts “connote[] a

legislative design to make an aspect of [Computer Fraud 3]

continuing[.]” Temple, 65 Haw. at 267, 650 P.2d at 1362. At

the least, “communicat[ing] with,” “stor[ing] data in,”

“mak[ing] use of a computer, computer system, or computer

network” reflect acts that are not “transitory . . . or brief,”

id., but instead “involve ongoing processes[.]” Decoite, 132

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Hawaiʻi at 439, 323 P.3d at 83. Cf. State v. Martin, 62 Haw.

364, 366, 616 P.2d 193, 195–96 (1980) (finding continuous theft

on the state when defendant filed fraudulent public assistance

forms); State v. Stenger, 122 Hawai‘i 271, 279, 226 P.3d 441, 449

(2010) (finding continuous theft on the state when defendant

continued to receive public assistance when no longer needed).

Thus, the ICA correctly held that aggregation of multiple

transactions is permissible for Computer Fraud 3.

B. The ICA erred when it held that the State need not allege
scheme in the charging document for Computer Fraud 3 under
the Motta/Wells rule.

The ICA incorrectly held that under the Motta/Wells

rule the Count I charge for Computer Fraud 3 was legally

sufficient because it was not necessary to include in the

indictment language establishing that Shaw acted pursuant to a

scheme or course of conduct. Because Count I failed to include

the essential attendant circumstances element of scheme or

course of conduct, it cannot be reasonably construed to charge a

crime. As discussed below, even if the language in the

indictment tracks the statutory offense language, that alone

does not render a charge legally sufficient. When the

indictment is read as a whole, Count I fails to charge a crime.

Under the Motta/Wells rule, if an objection to a

deficient indictment is raised for the first time on appeal, the

indictment must be liberally construed. Motta, 66 Haw. at 90,

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657 P.2d at 1019–20; State v. Wells, 78 Hawai‘i 373, 381, 894

P.2d 70, 78 (1995). An appellate court will “not reverse a

conviction based upon a defective indictment unless the

defendant can show prejudice or that the indictment cannot

within reason be construed to charge a crime.” Motta, 66 Haw.

at 91, 657 P.2d at 1020. If an element of an offense is missing

or an element in the charge does not “comport with its statutory

definition,” the charge cannot be reasonably construed to charge

a crime. State v. Baker, 146 Hawai‘i 299, 308, 463 P.3d 956, 965

(2020), as corrected (May 20, 2020) (citing State v. Pacquing,

139 Hawai‘i 302, 308, 389 P.3d 897, 903 (2016); State v. Wheeler,

121 Hawai‘i 383, 394, 219 P.3d 1173, 1181 (2009)). However, “one

‘way in which an otherwise deficient count can be reasonably

construed to charge a crime is by examination of the charge as a

whole,’” State v. Tominiko, 126 Hawai‘i 68, 76, 266 P.3d 1122,

1130 (2011) (quoting State v. Elliott, 77 Hawai‘i 309, 312, 884

P.2d 372, 375 (1994)), which allows “two counts [to] be read

together,” id. This court “employ[s] practical considerations

and common sense” when interpreting the indictment as a whole.

State v. Sprattling, 99 Hawai‘i 312, 319, 55 P.3d 276, 283

(2002). Additionally, this court has held that, in some cases,

when the language of the charge tracked the statutory definition

of the offense and all of the elements as defined in the statute

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are alleged in the indictment, the indictment was not defective.

See State v. Treat, 67 Haw. 119, 120, 680 P.2d 250, 251 (1984).

Here, the Motta/Wells liberal construction rule

applies because Shaw challenged the sufficiency of the

indictment for the first time on appeal. Based on the

Motta/Wells liberal construction rule, the ICA held that the

Computer Fraud 3 charge was legally sufficient and held that the

State was not required to “expressly allege in the Indictment

that Shaw engaged in a scheme or course of conduct” because the

Computer Fraud 3 charge “tracked” the language of the statutory

offense and the predicate theft offense, and all of the

statutory elements were included in the indictment.

1. Because the indictment did not allege that Shaw
intended to commit theft in the fourth degree, and no
transaction was greater than $250.00, the State was
required to allege scheme or course of conduct in the
indictment.

The State alleged only that Shaw “did knowingly access

a computer . . . with the intent to commit the offense of theft

in the third degree, [and] thereby committed the offense” of

Computer Fraud 3. (Emphasis added.) Because the indictment did

not allege Shaw knowingly accessed a computer, computer system,

or computer network with the intent to commit the offense of

theft in the fourth degree, and since none of the individual

transactions were greater than $250.00, the State was required

to include in the indictment language that Shaw possessed the

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intent to commit theft in the third degree through a continuing

course of conduct over the four-month period. The State failed

to do so.

Shaw correctly contends that even under the

Motta/Wells liberal construction rule, the indictment was

insufficient. The indictment failed to charge an essential

attendant circumstances element. See HRS § 702-205 (“The

elements of an offense are such (1) conduct, (2) attendant

circumstances, and (3) results of conduct[.]”); State v. Bovee,

139 Hawaiʻi 530, 538, 394 P.3d 760, 768 (2017). In this case,

the State aggregated the theft amounts from separate victims to

reach the $250.00 threshold for Theft in the Third Degree

necessary to prove Computer Fraud 3. The State’s prosecution of

Shaw for Computer Fraud 3 necessarily required proof of multiple

thefts committed pursuant to a common scheme or course of

conduct because none of the individual thefts met the $250.00

statutory threshold. Charging this crime under an aggregation

theory is predicated on Shaw having committed the thefts

pursuant to a scheme or course of conduct. Thus, the indictment

must allege that the defendant acted pursuant to a scheme or

course of conduct when Computer Fraud 3 is charged based on an

aggregation theory because scheme or course of conduct is an

attendant circumstances element that the State must prove.

Because the indictment did not include this element of scheme or

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course of conduct, required for Computer Fraud 3 based upon an

aggregation theory, the indictment failed to charge a crime.

2. The fact that Count I, Computer Fraud 3, tracked the
statutory offense language does not mean it was
legally sufficient.

The ICA was incorrect when it held that the charge was

sufficient merely because the charge “tracked” the language of

the statutory offense and the predicate theft offense, and all

the statutory elements were included in the indictment. This

court has stated that a charge can be insufficient even when the

charge tracks the language of the statute if it fails to

sufficiently describe the crime:

In some cases, however, a charge tracking the language of
the statute defining the offense nevertheless violates an
accused’s due process rights.

This is so because although “some statutes in our
criminal laws so clearly and specifically define[]
the offense that nothing more is required in [a
charge] than the adoption of language of the statute,
other statutes fail to sufficiently describe the
crime and [a charge] couched merely in the language
of such a statute would violate due process.”

State v. Nesmith, 127 Hawai‘i 48, 53, 276 P.3d 617, 622 (2012)

(emphases added) (quoting State v. Israel, 78 Hawai‘i 66, 73, 890

P.2d 303, 310 (1995)).

The indictment in the instant case “fail[s] to

sufficiently describe the crime” and, thus, the charge “couched

merely in the [statutory] language . . . violate[s] due

process.” See id. As discussed above, to charge Shaw with

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Computer Fraud 3 based on an aggregation theory, the State must

show that Shaw acted pursuant to a scheme or course of conduct.

If one of the individual transactions met the $250.00 statutory

threshold, scheme or course of conduct need not be proved, and

indictment language that simply tracks the language of the

statute would be sufficient. But here, the individual

transactions do not meet the statutory threshold, so the State

must prove scheme or course of conduct. Thus, when an

aggregation theory is used, a charge that simply tracks the

language of the statute can violate due process even under the

Motta/Wells liberal construction rule because scheme or course

of conduct is necessary to prove Computer Fraud 3 based upon an

aggregation theory.

3. Count I is legally insufficient even if the indictment
is read “as a whole.”

Even if Count I failed to charge a crime, the ICA

concluded that “it is clear from reading the Indictment as a

whole that the State charged Shaw with Computer Fraud 3 on a

continuing course of conduct theory.” Relying on Tominiko6 and

reading the two charges together, the ICA reasoned that, Charge

6 In Tominiko, the defendant was charged with operating a vehicle
under the influence of an intoxicant (“OVUII”). Tominiko, 126 Hawaiʻi at 71,
266 P.3d at 1125. The language charging OVUII was missing the element that
the conduct occurred on a public roadway. Id. at 76, 266 P.3d at 1130. The
supreme court read the indictment “as a whole” and held that the OVUII charge
was not deficient because a separate count contained the necessary allegation
and both counts referred to operating a motor vehicle on the same day in
Honolulu, Hawaiʻi. Id.

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I was sufficient because the two charges included the same time

period and Charge II’s plural language indicated multiple

victims and instances of theft.

A key distinction between Tominiko and this case is

that, in Tominiko, the other count explicitly included the

essential element. Tominiko, 126 Hawai‘i at 76, 266 P.3d at 1130

(holding that a charge that was missing the essential public

road element was not insufficient when read “as a whole” with

another charge that did include the essential public road

element). Here, Charge II did not specifically allege scheme or

course of conduct, but instead alluded to a scheme or course of

conduct with the use of plural language, alleging that Shaw “did

use credit card numbers without the consent of the cardholders

for purpose of obtaining money, or anything else of value, and

the value of all money and other things of value so obtained

exceeded Three Hundred Dollars ($300.00) . . . .” Thus,

Tominiko is not analogous because in Tominiko the other count

explicitly included the required element, whereas, here, the

other count implied scheme or course of conduct, without

explicitly identifying it.

Analogizing to Tominiko, the ICA pointed to the same

time period in both counts to support its conclusion that “both

charges are based on the same underlying conduct.” Once again,

Tominiko is not analogous. In Tominiko, this court pointed to

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the facts that both charges referred to operating a motor

vehicle in Honolulu, Hawaiʻi on the same day to reach its

conclusion that “it can be reasonably inferred that they refer

to the same incident.” Tominiko, 126 Hawaiʻi at 76, 266 P.3d at

1130. In this case, the ICA relied exclusively on the fact that

the charges referenced the same location, Honolulu, Hawaiʻi, and

the same four-month time period. The inference that the two

counts refer to the same incidences cannot be “reasonably

inferred” as in Tominiko. Four months is a much longer time

period than one day, and the two charges could have referenced

different activities during those four months. In Tominiko, the

two charges were related to the same singular incident involving

a “motor vehicle” that occured on the same day, whereas, here,

there are multiple instances of theft, making it less apparent

that the instances of theft by computer fraud referred to in

Count I are the same instances referred to by Count II for

Credit Card Fraud.

Notably, in Tominiko, both charges shared a common

element: operating a motor vehicle.7 Id. at 70, 266 P.3d at

1124. And the court pointed to this commonality when reading

the indictment as a whole. Id. at 76, 266 P.3d at 1130. In

7 In Tominiko, the defendant was charged with OVUII and Driving
Without Motor Vehicle Insurance. 126 Hawaiʻi at 70, 266 P.3d at 1124.

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contrast, an individual can commit Computer Fraud 3 without

using credit cards and can commit Credit Card Fraud without

using a computer. Therefore, the ICA’s reliance on Tominiko is

unfounded. The similarities between Count I and Count II are

insufficient to support the argument that the two counts refer

to the same underlying conduct. Therefore, the two counts

cannot be “read as a whole,” and the ICA erred when it concluded

that Count I, Computer Fraud 3, could be reasonably construed to

charge a crime.

Consequently, we conclude that Count I, Computer Fraud

3 was insufficient. See Wheeler, 121 Hawaiʻi at 394, 219 P.3d at

1181 (holding charge was insufficient when it failed to allege

all of the essential elements of the offense charged).

V. CONCLUSION

For the foregoing reasons, we hold that when Computer

Fraud 3 is charged under an aggregation theory and none of the

individual instances of theft meet the $250.00 statutory

threshold, the State must allege the defendant acted pursuant to

a scheme or course of conduct in the charging document.

Accordingly, we affirm in part, and vacate in part, the ICA’s

June 19, 2020 judgment on appeal. Because Count I, Computer

Fraud 3, did not contain an essential attendant circumstances

element required for the offense charged, we vacate the circuit

court’s order denying Shaw’s Motion to Dismiss the Indictment

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for Count I, remand with instructions to dismiss Count I without

prejudice, and remand for further proceedings consistent with

this opinion.

Taryn R. Tomasa for /s/ Mark E. Recktenwald
petitioner/defendant-appellant
/s/ Paula A. Nakayama
Chad M. Kumagai for
/s/ Sabrina S. McKenna
respondent/plaintiff-appellee
/s/ Michael D. Wilson

/s/ Karen T. Nakasone

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