State v. Stenger

***FOR PUBLICATION IN WEST’S HAWAYI REPORTS AND PACIFIC REPORTER***

lN THE SUPREME COURT OF THE STATE OF HAWAl‘I

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sTATE or HAWAI‘I,
Respondent/Plaintiff-Appellee

VS.

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9 5 w w-avuozaz

ANGELA STENGER,
Petitioner/Defendant-Appellant

NO. 275ll

CERTlORARl TO THE INTERMEDlATE COURT OF APPEALS
(CR. NO. 04-l-l460)

MARCH 4, 2010
ACOBA, AND DUFFY, JJ., AND CIRCUlT
JUDGE KIM ASSlGNED DUE TO A VACANCY;

WITH SUBSTITUTE JUSTICE KIM CONCURRlNG SEPARATELY;
DlSSENTlNG; AND NAKAYAMA, J.,
JOINS

AND MOON, C.J.,
DISSENTING, WITH WHOM MOON, C.J.,

OPINION OF THE COURT BY ACOBA, J.
Petitioner/Defendant-Appellant Angela

We hold that (l)

Stenger (Petitioner) was entitled to a mistake of fact
(HRS) § 702-218

instruction under HawaiYi Revised Statutes
it would be inappropriate for

(l993)1; (2) based on that holding,

.l HRS § 702-218 provides that
[i]n any prosecution for an offense, it is a defense that
(continued...)

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the circuit court of the first circuit (the court)2 to also give'
a claim of right instruction pursuant to HRS § 708-834(l) (Supp.
2OO2)3; (3) under the circumstances of this case, first-degree
theft by deception under HRS §§ 708~830(2) and 708~830.5(l)(a)
(l993)4 is a continuing offense, and thus, the court was right in
rejecting Petitioner’s request for a specific unanimity

instruction as to the charged offense of Theft in the First

1(...continued)
the accused engaged in the prohibited conduct under
ignorance or mistake of fact if:

(l) The ignorance or mistake negatives the state of
mind required to establish an element of the
offense; or

(2) The law defining the offense or a law related
thereto provides that the state of mind
established by such ignorance or mistake
constitutes a defense.

2 The Honorable Richard K. Perkins presided.
3 HRS § 708~834(l) states that
[i]t is a defense to a prosecution for theft that the
defendant:
(a) Was unaware that the property or service was
that of another; or
(b) Believed that the defendant was entitled to the

property or services under a claim of right or
that the defendant was authorized, by the owner
or by law, to obtain or exert control as the
defendant did.

(Emphasis added.)

4 HRS § 708-830(2) provides in relevant part 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.” (Emphasis added.) HRS § 708-830.5(l)(a) states that “[a] person
commits the offense of theft in the first degree if the person commits theft
[o]f property or services, the value of which exceeds $20,000[.]” HRS § 708~
800 (Supp. 2002) provides, in relevant part that

“[d]eception” occurs when a person knowingly:

(l) Creates or confirms another’s impression which
is false and which the defendant does not
believe to be true;

(2) Fails to correct a false impression which the
person previously has created or confirmed[.]

2

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Degree; (4) however, Petitioner was entitled to a unanimity
instruction as to the included offense of Theft in the Second
Degree under HRS § 708-831 (Supp. 2002)5; and (5) Petitioner was
entitled to jury instructions on the lesser included offenses of
Theft in the Third Degree under HRS § 708-832 (l993)6; and Theft
in the Fourth Degree under HRS § 708-833 (l993)7; additionally,
assuming Respondent/Plaintiff-Appellee State of Hawai‘i
(Respondent) presents its case in the same way, Petitioner will
be entitled to such instructions upon remand. For those reasons,
the judgment of the Intermediate Court of Appeals (lCA) filed on
January 30, 2009, pursuant to its December 3l, 2008 Summary
Disposition Order (SDO),8 State v. Stenger, No. 275ll, 2008 WL
54l3898 (App. Dec. 3l, 2008), vacating the August 24, 2005
Judgment filed by the court, convicting Petitioner of first-
degree theft by deception under HRS §§ 708-830(2) and 708-

830.5(l)(a) (l993), is vacated in part, the court’s judgment is

4

5 HRS § 708-83l(l) provides, in relevant part, that

[a] person commits the offense of theft in the second degree
if the person commits theft:

fbi 1 0f property or services the value of which
exceeds $300[.]

6 HRS § 708-832(l) states in pertinent part that

[a] person commits the offense of theft in the third
degree if the person commits theft:
(a) Of property or services the value of which
exceeds $l00[.]

7 HRS § 708-833(l) provides that “[a] person commits the offense of
theft in the fourth degree if the person commits theft of property or services

of any value not in excess of $l00.”

8 The SDO was filed by Presiding Judge Daniel R. Foley, and
Associate Judges Craig H. Nakamura and Alexa D.M. Fujise.

3

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vacated, and the case is remanded for a new trial consistent with
this opinion.

This is the second application for writ of certiorari
in this case. In the first application, Respondent9 asked this
court to review the ICA's January 30, 2009 judgment, on the
ground that the ICA gravely erred in ruling that Petitioner was
entitled to the claim-of-right defense instruction where she did
not have sufficient interest in the welfare benefits. By a 3-2
vote this court rejected the application. See State v. Stenger,
No. 275ll, 2009 WL 2l7l562 (Haw. April 23, 2009) (Acoba, J.,
dissenting separately, and Kim, J., dissenting separately).

In the second application for writ of certiorari, filed
by Petitioner on April 30, 2009 (Application), Petitioner seeks
review of the ICA’s judgment and SDO, on the basis that the ICA
gravely erred in holding (l) “that the [court] did not err in
refusing to give a specific unanimity instruction[,]” and
(2) “that [Petitioner] was not entitled to a mistake of fact jury
instruction.”

I.

In June 2002, Petitioner, due to a high-risk pregnancy,
ceased her work as a substitute teacher with the Department of
Education (DOE), and also for the Hawafi Surf Academy (HSA), a

business owned and operated by Petitioner. Petitioner thereafter

applied for financial aid, medical coverage, and food stamps

9 In that proceeding the State was actually the Petitioner, but for
ease of reference, this opinion refers to the State as Respondent throughout,
inasmuch as the State is the Respondent for purposes of the instant
application.

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(public assistance), from the Department of Human Services (DHS).
At the time she applied for aid, Petitioner had two children,
Kaelin Himphill (Kaelin) and Keana Himphill (Keana).

0n June 2l, 2002, Terri Cambra (Cambra), an eligibility
supervisor for DHS, interviewed Petitioner, and reviewed her
applications to determine whether she was eligible for public
assistance. Petitioner reported that she had a Bank of America
account with $300, and an American Savings checking account. She
received monthly child support of $570, and last worked for the
DOE in June 2002.

Upon meeting with Petitioner, Cambra went over the
responsibilities and penalties associated with receiving public
assistance, which are listed on the application, including the
penalties for providing false information, and the requirement
that all changes be reported within ten days. Petitioner signed
a statement on the application stating that her answers were true
and correct, and that she understood the penalties for giving
false information. At that time, Petitioner did not qualify for
public assistance, because she exceeded the income limit.

On July 2, 2002, Petitioner reapplied for public
assistance, and was found to be eligible.

On August 22, 2002, Petitioner gave birth to twins,
Jadelyn and Jolene Stenger (the twins). In October of 2002, two
sisters, Pearlinda Aea (Aea) and Sheila Ann Geiger (Geiger)
{collectively, the sisters], began assisting Petitioner with the
twins’ care. According to Petitioner, the sisters cared for the

twins a couple of days a week between October 2002 and May 2003.

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According to Aea, she cared for Jolene 16 days or more per month.
According to Geiger, she cared for Jadelyn three to four days per
week in October 2002, which escalated thereafter. Geiger claimed
that after December 2002, Jadelyn did not stay overnight with
Petitioner. The sisters were not paid for this service. On
December l6, 2002, Petitioner informed her DHS public assistance
case worker Lyn Cardenas (Cardenas) in writing that the sisters
were watching the twins two to three days per week, and that
Petitioner’s mother occasionally watched Kaelin and Keana.

In January 2003, Petitioner sent Kaelin and Keana to
live with their father in Oregon, and transferred custody of both
children over to him. However, Petitioner claimed that she
intended the arrangement to be only temporary. ln January,
Petitioner reported that Kaelin had moved out, but waited until
April to report that Keana had moved out, because she had
believed that Keana was to return in a few weeks.

In March 2003, Petitioner made efforts to return to
work, and wrote a letter to Cardenas informing her that she
started working, as she intended to begin substitute teaching.
However, Petitioner had a difficult time finding child care, and,
although she worked intermittently, she did not report the income
because it was not “regular.” Petitioner and Respondent
stipulated that Petitioner received the following unreported
wages as a substitute teacher during the time she was receiving

public assistance:

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October lB, 2002: $232.62
March 20, 2003 : $359.40

April 4, 2003 : $599.00
April l7, 2003 1 $ll9.80
May 5, 2003 : $ll9.80
May 20, 2003 1 $239.60

ln 2003, Petitioner's grandfather passed away, leaving
Petitioner a check for $5,000, which Petitioner gave to her
mother. Petitioner's mother placed a portion of the money in a
trust account at Bank of Hawaii, which, upon her death, would go
to Petitioner. Scott Takahashi (Takahashi), custodian of records
for Bank of Hawaii, testified that a $5000 check payable to
Petitioner was deposited into three different accounts, for which
Petitioner was either the signatory or the beneficiary.

According to Petitioner, she divided the $5000 into three
accounts, depositing $l000 into the HSA account, $500 into her
personal account, and $3,500 into the trust account. Petitioner
never reported the $5000 to DHS.

Takahashi further testified that Petitioner opened a
checking account for her business, HSA, on July 25, 2000, for
which Petitioner was the sole authorized signer. The HSA
account's July 2002 statement showed an opening balance of
$3,090.2l and a closing balance of $l9l.48. Activity for July
included a check payable to Petitioner for $285 from the State of
Hawafi Child Support Enforcement Agency (CSEA) and a money order
for $200 also payable to Petitioner. Takahashi further testified
that in September 2002, there were credit card deposits to that
account for $2,532.63, and $l,950.00. There was another credit

card deposit to the HSA account in January 2003 for $747.

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ln May 2003, Petitioner informed Cardenas that she
wanted to be removed from public assistance because she had
started working more frequently and the twins were staying with
the sisters full time,

A DHS Welfare Fraud lnvestigator, Terrence Miyasato
(Miyasato), investigated Petitioner based on anonymous tips.
Miyasato conducted interviews and obtained information about the
HSA. Nina Vallejo (Vallejo), an eligibility worker with the
State’s lnvestigation Office, worked with Miyasato on
Petitioner’s case to determine the amount of overpayment.
Vallejo determined that Petitioner’s (l) income and assets from
the HSA, (2) income from DOE, and (3) failure to report that her
children were not living with her, disqualified Petitioner from
receiving public assistance, and evaluated separately how each of
those factors related to the financial, food stamp, and medical
assistance that Petitioner received between July 2002 and May
2003r Vallejo considers household size, monthly income,
financial resources, and income guidelines when determining
whether an individual is eligible for public assistance. She
testified that without the children in the house, Petitioner was
not eligible for any financial assistance on their behalf, but
Petitioner could still receive assistance if she qualified in her
own right. Vallejo based her calculation of Petitioner's
overpayment amount on Miyasato's report, trial testimony, and
bank statements. According to Vallejo, Petitioner was overpaid
$7,350.00 in financial assistance, $5,598.00 in food stamps, and

$l0,086.00 in medical, totaling $23,034.00. That amount was

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based on the assumption that the testimony and reports were true
and Vallejo conceded that if any items were not true, the
calculations would change.

lI.

On July 27, 2004, Petitioner was charged by indictment
with Theft in the First Degree in violation of HRS §§ 708-830(2)
and 708-730.5(l)(a). At trial, the defense submitted a proposed
unanimity instruction pursuant to State v. Arceo, 84 HawaFi l,
30, 928 P.3d 843, 872 (l996), and also an instruction on the
defense of claim of right. With regard to the unanimity
instruction, Petitioner argued that “[Petitioner’s] position is
[the jury] need[s] to be unanimous on which months she wrongfully
obtained these benefits[.]” Respondent argued that a unanimity
instruction was not appropriate because the offense constituted a
continuing offense. In agreement with Respondent, the court
denied Petitioner's request.

With regard to claim of right, defense counsel orally
requested that the jury be instructed on claim of right pursuant
to HRS § 708-834, because Petitioner “‘believed she was entitled
to the benefits that she obtained and exerted control over[.]’0
Respondent countered that “[Petitioner] did not ‘meet the
conditions precedent for a claim of right'” because there was
testimony that Petitioner both withheld relevant information and
provided false information in order to obtain the benefits. The

court denied the request for a claim of right instruction.

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The court, by agreement of both Petitioner and
Respondent, provided instructions on Theft in the First Degree,
and the included offense of Theft in the Second Degree.

lII.

Following the trial, on June 7, 2005, the jury found

Petitioner guilty of Theft in the First Degree.

On appeal, Petitioner

assert[ed] that the [court] erred by: l) refusing to give an
instruction, as requested by [Petitioner}, on the
claim-of-right defense; 2) failing sua sponte to give a
mistake-of-fact instruction; 3) giving instructions, to
which [Petitioner] had agreed, which failed to properly
instruct the jury on the material elements for first-degree
theft; and 4) refusing to give a specific unanimity
instruction as requested by [Petitioner].

Stenger, 2008 WL 54l3898, at *l. The ICA held (l) “that the
[court] erred in refusing to instruct the jury on the
claim-of-right defense” because Petitioner Ydid not obtain the
welfare benefits by deception” but “honestly believed she had
complied with the reporting requirements[,]” iQ; at *3w;

(2) “[Petitioner's] claims do not support a mistake-of-fact
defense[,]” because “[t]he only ‘mistake' claimed by [Petitioner]
was that she did not believe she was required to report certain
of the undisputed events[,]” and “a mistake concerning what was
required to be reported was a mistake of law, not a mistake of
fact[,]” iQ4 at *4; (3) the court’s instructions on the
first-degree theft offense “were not prejudicially insufficient
or erroneous[,]” id;; and (4) the court did not err by refusing

to give a specific unanimity instruction, because “[i]n this

w The lCA's disposition of the claim of right issue is discussed at
length infra.

l0

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case, the charged first-degree theft offense can be proven as a
continuous offense[,]” and Respondent “treated [Petitioner's]
charged theft offense as a continuous offense in its prosecution
of [Petitioner,]” idL at *6.

Because the lCA “agree[d] that the [court] erred in
denying [Petitioner’s] request that the jury be instructed on the
claim-of-right defense,” it “vacate[d Petitioner’s] conviction
and remand[ed] for a new trial.” ;Q; at *l.

lV.
Petitioner presents the following questions in her

Application:

l. Whether the ICA gravely erred in holding that the

[court] did not err in refusing to give a specific unanimity

instruction.

2. Whether the lCA gravely erred in holding that

[Petitioner] was not entitled to a mistake of fact jury

instruction.[u]
Respondent did not file a memorandum in opposition.

V.
A.

As to her second question, Petitioner argues that
“[t]he lCA's conclusion that [Petitioner’s] testimony supported a
mistake of law, rather than a mistake of fact, is wrong[,]”
because “[Petitioner’s] testimony as to the allegations of the
DOE income, the HSA income, and Keana’s absence from the
household all supported a mistake of fact defense.” Petitioner

urges that Respondent had to prove that she acted “by deception,

specifically, knowingly creating, confirming, or failing to

“ we address Petitioner’s second question, regarding mistake of
fact, first.

ll

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correct a false impression[,]” (citing HRS §§ 708-800, 708-
830(2), and 708-830.5), and that “[Petitioner's] testimony that
she did not believe she had to report the changes relates
directly to her mistake as to whether she created a false
impression.” Thus, Petitioner argues that if she “mistakenly
believed that she did not need to report the changes, then she
mistakenly believed that she did not create any false
impressions[,] which is a material element[.]” Although
Petitioner failed to request a mistake of fact instruction at
trial, she maintains that “[t]he evidence adduced at trial
supported the instruction and the [court’s] failure to give [it]
constituted substantial error that cannot be deemed harmless{,]”
because, “[i]f the trier of fact believed that [Petitioner] was
mistaken as to a single allegation . . . , it would have afforded
[Petitioner] a mitigating defense by reducing the class of the
offense.” l
B.

Respondent counters that “the [court] did not commit
plain error in failing to give the jury an instruction on the
defense of mistake-of-fact where there was no credible evidence

to warrant such an instruction.” According to Respondent,

[t]he conduct that led to [Petitioner’s] conviction, and the
conduct against which her mistake-of-fact claim must be
judged, was [Petitioner’s] use of deception to obtain
welfare funds to which she was not entitled, by failing to
report that: (l) her children were not living with her,

(2) she received a $5,000.00 lump sum payment, (3) she
received income from the DOE, and (4) she received income
from HSA.

Respondent maintains that “[Petitioner’s] rebuttal to

[Respondent’s] evidence that she intentionally withheld

l2

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information about the children” consisted of the following:

(l) the twins, Jadelyn and Jolene, were always living with
her, (2) neither of her two older children . . . were living
with her mother at any time, and (3) she did report Kaelin
leaving the household, but did not report Keana moving out
until sometime later because she believed Keana would return
to her home in a few weeks.

fn Respondent’s view, “[n]one of these explanations related to
any mistake made by [Petitioner,]” but simply represent a “denial
that she misrepresented the custody status of [her] children[,]”
or “another form of deception[.]”

As to Petitioner’s failure to report income, Respondent
argues that her “explanations” are not “mistakes,” but “eXcuses.”
As to any potential “mistake” Petitioner may have made in failing
to report income, Respondent urges that “[t]he significance of
the relationship between a person’s income to eligibility should
not have been lost on [Petitioner] because her own application
for welfare assistance was at first rejected . . . due to her
income exceeding the eligibility limit.”

Respondent also points out that “the warnings in the
applications that [Petitioner] signed and completed to become
eligible for welfare were very explicit[,]” stating that the
recipient must “report any changes in your household or family
within l0 days of the time you learn of the change[,]” including
“receipt of a lump sum payment[,]” and “receipt . . . of money
from any source.” Respondent essentially argues that none of the
evidence presented supports a conclusion that Petitioner was
acting under a “mistaken belief,” and thus, “[t]he [court] did

not commit plain error in refusing to give a mistake-of-fact

instruction under such facts.”

l3

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Vl.
A.

As to the first question, Petitioner argues that “a
unanimity instruction was necessary because [Respondent] adduced
evidence of multiple acts and one or more than one combination of
those acts could constitute the charged crime.” (Citing State v.
QQne§, 96 Hawai‘i l6l, l70, 29 P.3d 35l, 360 (200l).) Petitioner

points out that

[i]n “multiple act” cases, the defendant’s constitutional
right to a unanimous jury verdict guaranteed under [a]rticle
I, [sections] 5 and 14 of the Hawafi Constitution require
that the jury be unanimous as to which act or incident
constituted the crime[:]
In a multiple acts case, . . . several acts are
alleged and any one of them could constitute the
crime charged. In these cases, the jury must be
unanimous as to which act or incident
constituted the crime. To ensure jury unanimity
in multiple acts cases, we require that either
the State elect the particular criminal act upon
which it will rely for conviction, or that the
trial court instruct the jury [sic] that all of
them must agree that the same underlying
criminal act has been proved beyond a reasonable
doubt.

(Quoting State v. Shinyama, 101 HawaFi 389, 399, 69 P.3d 5l7,

527 i2003).) According to Petitioner, “[i]n this case, a
unanimity instruction was required because [Respondent] argued
for criminal liability based on multiple acts[,]” and, therefore,
“[w]ithout a unanimity instruction, it is impossible to know
whether the jury was unanimous as to the conduct that constituted
the crime.” Petitioner asserts that the evidence was presented
at trial such that “if the jury disbelieved even one of
[Respondent’s] allegations, the amount of the [total] calculation
would vary.” According to Petitioner, “a combination of various

allegations or even a sole allegation would have been sufficient

l4

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to sustain the conviction[,]” inasmuch as “it was [not] necessary
for the jury to find all allegations true in order to find that
the value exceeded $20,000.” Thus, Petitioner argues that “it is
impossible to determine whether the jury was unanimous on
conduct[.]”

Petitioner concedes that unanimity instructions are not
required where Respondent relies on one course of conduct.
However, Petitioner maintains that “the problem here is that
[Respondent] did not elect to submit to the jury that it had to
find that all of the acts of deception of which it adduced
evidence at trial occurred in order to convict.”

B.

Respondent argues to the contrary that “the [court]
correctly refused to give the jury a unanimity instruction where
the instant offense is a continuing offense.” According to

Respondent,

[w]hat distinguishes conduct consisting of separate acts
from a continuous course of conduct is (l) whether the
conduct involved falls within the definition of a continuous
offense, and (2) whether the prosecution alleged, adduced
evidence, and argued that the accused's conduct was a
continuous course of conduct in the presentation of its

ga§§.
(Citing State v. Hironaka, 99 Hawafi 198, 207, 53 P.3d 806, 815
(2002).) (Emphases added.)

As to the first requirement, Respondent maintains that
“the instant offense was a continuing offense[,]” because
(l) under State v. Martin, 62 Haw. 364, 616 P.2d 193 (1980), “it
is well established that a continuous offense can consist of a

theft based on a series of acts involving welfare fraud[,]” and

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(2) “the statutory construct for theft offenses in this State is
favorable to treating thefts as a continuous offense[,]” inasmuch
as “[HRS §] 708-801(6) plainly states that, ‘amounts involved in
thefts committed pursuant to one scheme or course of conduct,
may be aggregated in determining the class or grade of the
offense.'”
As to the second requirement, Respondent avers that
“the record is clear that the instant indictment charged
[Petitioner’s] conduct as a continuous offense[,]” stating that
[b]eginning on or about [July 2, 2002] and continuing
through to on or about [May 31, 2003], . . . [Petitioner]

did obtain and exert control over the property of
{Respondent], the value of which exceeded $20,000.00, by
deception, with intent to deprive [Respondent] of its
property, thereby committing the offense of Theft in the
First Degree in violation of [HRS §§ 708-830(2) and 708-

830.5(l)].
(Bold emphasis omitted.) Additionally, Respondent maintains that

it argued the crime as a continuous offense in its closing
argument, by stating that the “amounts of theft committed
pursuant to one scheme or course of conduct can be aggregated
in determining the class or grade of the offense[,]” and
“you can add up all the different instances where she committed
theft and coming [sic] up with a final total which will be the
determination of what kind of theft occurred in this case[.]”
Vll.
A.
The defense of mistake of fact is codified in HRS
§ 702-218, which, as stated su ra, provides, in relevant part,

that

[i]n any prosecution for an offense, it is a defense that
the accused engaged in the prohibited conduct under
ignorance or mistake of fact if:

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(l) The ignorance or mistake negatives the state of
mind required to establish an element of the
offense[.]

The Commentary on HRS § 702-218 provides that

[t]his section states the logical concomitant of the
requirement that to establish each element of an offense a
certain state of mind with respect thereto must be proven.
Thus, if a person is ignorant or mistaken as to a matter of
fact or law, the person’s ignorance or mistake will, in
appropriate circumstances, prevent the person from having
the requisite culpability with respect to the fact or law as
it actually exists. For example, a person who is mistaken
(either reasonably, negligently, or recklessly) as to which
one of a number of similar umbrellas on a rack is the
person’s and who takes another’s umbrella should be afforded
a defense to a charge of theft predicated on either
intentionally or knowingly taking the property of another.
Also, a person, mistaken as to the effect of a divorce
decree erroneously purporting to sever the marital ties of
his wife, who marries another woman should not be convicted
of bigamy if bigamy requires knowledge by the defendant of
the defendant’s existing marital status. A reckless mistake
`would afford a defense to a charge requiring intent or
knowledge--but not to an offense which required only
recklessness or negligence. Similarly, a negligent mistake
would afford a defense to a charge predicated on intent,
knowledge, or recklessness--but not to an offense based on
negligence.

This section of the Code deals with ignorance or
mistake of fact or law, but it is not intended to deal with
the limited problem of the defense afforded a person who
engaged in conduct under the mistaken belief that the
conduct itself was not legally prohibited. That problem is
dealt with exclusively by § 702-220.

Previous Hawaii law recognized a defense based on
ignorance or mistake of fact or law, but usually the law
required that the ignorance or mistake be reasonable. The
Code correlates the culpability required for commission of
the offense with the culpability which will deprive
ignorance or mistake of effect as a defense. ~

(Emphases added.)”

n Although the Commentary indicates that the defense of “mistake of
law” might be available, the Supplemental Commentary on HRS § 702-218
clarifies that mistake of law is only available in very limited circumstances
not prescribed in that section:

The Legislature in dealing with § 702-218 deleted a
defense based on mistake of law. The Legislature said that
it was “thereby avoiding a major dilemma with respect to
enforcement of the provisions of this Code. The defenses of
ignorance of the law afforded by §§ 702-218 and 220 would
have been available, to a degree, under any given set of
circumstances and as such would have constituted a major

(continued...

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According to Petitioner, “[b]ased on the evidence
adduced at trial, a juror could have found that [Petitioner]
believed that her actions complied with the reporting
requirements[,]” and, therefore, “[Petitioner’s] mistaken belief
would have negated the states of mind required to establish the
offense.” As noted by Petitioner, Respondent was required to
prove that Petitioner committed theft “by knowingly creating,
confirming or failing to correct a false impression.” i(Citing
HRS § 708-800.) Petitioner's theory as to mistake of fact is
essentially that, if she believed she was complying with the
reporting requirements by virtue of the items she did report to
DHS, then she could not have “knowingly” created or failed to
correct a false impression.

s.
As this court stated in State v. Locguaio,

[p]ursuant to HRS § 702-204 (l993), “a person is not guilty
of an offense unless the person acted intentionally,
knowingly, recklessly, or negligently, as the law specifies,
with respect to each element of the offense.” “The elements
of an offense are such (l) conduct, (2) attendant
circumstances, and (3) result of conduct” that are
“specified by the definition of the offense” and that
“negative a defense.” §ee HRS § 702-205 (1993). With
respect to defenses that negate penal liability, the

”(...continued)
encumbrance to enforcement of the substance and spirit of
the Code.” See Conference Committee Report No. 2 (1972).

Although the Legislature did not provide for a defense
based on mistake of law, the State Supreme Court has
recognized that, in some instances, there must exist, as a
necessary corollary to the definition to certain offenses, a
defense based on this type of mistake. See State v. Marley,
54 Haw. 450, 476-477, 509 P.2d 1095, 1111-1112 (1973). The
court cited § 702-220 of the Hawaii Penal Code as providing
a defense to a state trespass prosecution in the case of
honest and reasonable belief (“no matter how incorrect such
a belief might be”) that another law (American treaty 1aw)
afforded a defense to the trespass.

(Emphasis added.)

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defendant has the initial burden to adduce “credible
evidence of facts constituting the defenses, unless those
facts are supplied by the prosecution’s witnesses.” §e§
Commentary to HRS § 701-115 (l993). . . . {llf the
defendant raises a non-affirmative defense, the prosecution
must prove beyond a reasonable doubt facts negating the

defense.
100 HawaiI l95, 206, 58 P.3d l242, 1253 (2002) (brackets and

ellipsis omitted) (emphases added). In that case,

Locquiao’s sole defense at trial was that he was unaware
that the “glass material” recovered by {the police] was an
“ice pipe” and that the “glass material” contained
methamphetamine. That being so, Locguiao was entitled to an
instruction on the ignorance-or-mistake-of-fact defense, and
thejprosecution bore the burden of disproving the defense -
it being an element of its case-in-chief-beyond a reasonable
doubt.

Id. (emphasis added).

1n determining whether a separate mistake of fact
instruction was required in addition to the circuit court's
instruction as to the requisite state of mind for the offense,

this court considered the legislative intent of HRS § 702-218,

explaining that

[t]he HawaiH legislature premised the enactment of HRS

§ 702-218 on the proposition that, “if a person is ignorant
or mistaken as to a matter of fact, the person’s ignorance
or mistake will, in appropriate circumstances, prevent the
person from having the requisite culpability with respect to
the fact as it actually exists.” §ee Commentary to HRS

§ 702-218 (1993). Conseguently, the legislature intended
that a jury consider, separate and apart from the
substantive elements, whether a defendant’s mistaken belief
should negate the requisite culpability for the charged
offense. That being the case, insofar as ignorance or
mistake of fact is a statutory defense in HawaiH, we

now hold that, where a defendant has adduced evidence at
trial supporting an instruction on the statutory defense of
ignorance or mistake of fact, the trial court must, at the
defendant’s request, separately instruct as to the defense,
notwithstanding that the trial court has also instructed
regarding the state of mind requisite to the charged
offense. We believe that to hold otherwise would render HRS
§ 702-2l8(l) nugatory.

1d. at 208, 58 P.3d at 1255 (emphases added) (ellipsis omitted).

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Under Locguaio, a defendant is entitled to a separate
mistake of fact instruction when the defendant presents evidence,
“no matter how weak,” that he or she acted under a mistake of

fact that negated an element of the offense:

This court has consistently held that a defendant is
entitled to an instruction on every defense or theory of
defense having any support in the evidence, provided such
evidence would support the consideration of that issue by
the jury, no matter how weak, inconclusive, or
unsatisfactory the evidence may be. Moreover, it is the
trial judge’s duty to insure that the jury instructions
cogently explain the law applicable to the facts of the case
and that the jury has proper guidance in its consideration
of the issues before it. Thus, on review, we must ascertain
whether the jury instructions given by the circuit court,
when read and considered as a whole, are prejudicially
insufficient, erroneous, inconsistent, or misleading.
Erroneous instructions are presumptively harmful and are a
ground for reversal unless the prosecution satisfies its
burden of showing that the erroneous instructions were
harmless beyond a reasonable doubt.

;Q; at 205-06, 58 P.3d at 1252-53 (emphases added) (ellipsis,
quotation marks, brackets, and citations omitted).

Although, unlike the defendant in Loc uaio, Petitioner_
in this case did not specifically request a mistake of fact
instruction at trial,“ the “harmless beyond a reasonable doubt”
standard set forth in Locguaio applies. See State v. Nichols,
111 Hawaiu.327, 337, 141 P.3d 974, 984 (2006) (holding “that,

. . . in the case of erroneous jury instructions, [the plain
error] standard of review is effectively merged with the [HawaiH
Rules of Penal Procedure] Rule 52(a) harmless error standard of
review because it is the duty of the trial court to properly
instruct the jurY[,]” and, thus, “once instructional error is

demonstrated, we will vacate, without regard to whether timely

“ Petitioner did request a claim of right instruction, which is a
subspecies of mistake of fact, and, therefore, argues that that request should
be construed liberally to encompass a request for mistake of fact,

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objection was made, if there is a reasonable possibility that the

error contributed to the defendant’s conviction, i.e., that the

erroneous jury instruction was not harmless beyond a reasonable
doubt”). Thus, we must determine (1) whether Petitioner
presented any evidence, “no matter how weak,” that would have
supported the jury's consideration of a mistake of fact defense
and, if so, (2) whether the court's failure to instruct on
mistake of fact was harmless beyond a reasonable doubt.
C.

l.

\\'

Petitioner's argument is essentially that, if [she]

mistakenly believed that she did not need to report the changes,”
then she did not knowingly create any false impressions.
Petitioner presents the following as examples of evidence
presented in her trial testimony that could have supported a

mistake of fact defense;

During the trial, [Petitioner] claimed, both in a
letter to Cardenas, and during her testimony[,] that the
twins were living with her during the relevant time period.
Similarly, [Petitioner] denied that Kaelin or Keana were
living with her mother at anytime [sic]. [Her mother] also
confirmed this fact. [Petitioner] provided timely notice
that Kaelin moved out of her household and also explained
that she did not report Keana had moved because she believed
that Keana would return to her household in a “few weeks.”

With respect to the unreported income, [Petitioner]
and Cardenas both testified that [Petitioner] had reported
in writing that she “started working.” [Petitioner]
explained that she did not attach her DOE pay stubs because
she was not working regularly. Similarly, [Petitioner]
testified that she did not work at the HSA as it was
“seasonal” and that she reported the business to DHS.
Finally, [Petitioner]Cdid not report the $5,000 check that
was dated in April 2003, but submitted a written request in
May 2003 that she be removed from public assistance.

ln this case, [] the evidence adduced at trial
substantiated that in multiple instances, [Petitioner]
reported her household changes to Cardenas, [Petitioner)

also provided explanations regarding [Respondent’s]

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accusations of later reporting, failure to report changes,
and contradictory witness testimony.

Based on the foregoing, Petitioner argues that “[a] reasonable
juror could have concluded that [Petitioner] believed that she
reported her household changes and disclosed all material

information as mandated.”

The lCA rejected Petitioner's contention, stating that

[Petitioner's] claims do not support a mistake-of-fact
defense. The evidence presented by [Petitioner] did not
show that she was mistaken about any material fact.
lnstead, [Petitioner] either disputed the facts alleged by
LRespondentl or conceded the alleged facts but provided an
explanation as to why she did not believe she was required
to report them. The only “mistake” claimed by [Petitioner]
was that she did not believe she was required to report
certain of the undisputed events. However, a mistake
concerning what was required to be reported was a mistake of
law, not a mistake of fact.

Stenger, 2008 WL 54l3898, at *4 (emphases added). However, in
the course of “disput[ing] the facts . . . or conced[ing] the

alleged facts but provid[ing] an explanation as to why she did
not believe she was required to report them[,]” Petitioner
presented evidence that could have supported the conclusion that
she mistakenly believed that she in fact provided all of the
required information, which would have been a factual mistake,
and not a mistake as to any statutory law.

Based on the evidence presented, Petitioner provided
some basis for the jury to believe (1) that she was mistaken as
to the reporting requirements, i4e;, that she believed the
reporting she provided was sufficient to receive assistance,
and/or (2) that Petitioner was mistaken as to certain factual
matters regarding her personal situation which caused her to

misreport, i.e., that Keana had not in fact moved out of her home

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permanently. Although Respondent contends that Petitioner's
explanations do not represent any mistake of fact, but are merely
“excuses,” that is a credibility issue for the jury.

2.

Hence, it cannot be concluded that the court's failure
to instruct on the defense of mistake of fact was harmless beyond
a reasonable doubt. Merely because the court provided an
instruction as to the requisite state of mind for theft in the
first degree by deception does not render the failure to instruct
on mistake of fact harmless. Under the facts presented here,
there is a reasonable possibility that the jury, if provided with
a separate mistake of fact instruction, could have found that
Petitioner believed she complied with the reporting requirements
and, thus, did not knowingly deceive DHS. Thus, the lCA gravely
erred in concluding that Petitioner was not entitled to an
instruction on the mistake of fact defense.

3 VlII.
A.

The defense of a claim of right is set forth in HRS
§ 708-834, which, as set forth above, states in relevant part
that “[i]t is a defense to a prosecution for theft that the
defendant[] . . . . [b]elieved that the defendant was entitled
to the property or services under a claim of right[.]” The lCA
“conclude[d] that the circuit court erred in refusing to instruct
the jury on the claim-of-right defense pursuant to HRS
§ 708-834(l)(b)[,]” because Petitioner “‘believed that [she] was

entitled to the property or services under a claim of right.'”

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Stenger, 2008 WL 54l3898, at *3 (quoting HRS § 708-834(1)(b))
(brackets omitted). That conclusion was based on the lCA’s
belief that “{t]he HRS § 708-834(1)(b) version of the
claim-of-right defense . . . is broader than the [Model Penal

Code (MPC)] version.” Id. ln that connection, the lCA explained

that,

[u]nlike HRS § 708-834(1)(b), the [MPC] version of the
claim-of-right defense requires a link between the
defendant’s conduct and his or her claim of right. The MPC
provides that “[i]t is an affirmative defense to prosecution
for theft that the actor: . . . acted under an honest claim
of right to the property or services involved or that he [or
she] had a right to acquire or dispose of it as he [or she]
did[.]” [MPC] § 223.l(3)(b) (l980) (emphasis added).
[Petitioner] does not contend that she acted (failed to
accurately disclose material information) because of a claim
of right to welfare benefits. lnstead, she asserts that she
did not disclose the information that [Respondent] alleges
she deceptively concealed because she did not believe or
know she was required to report such information. Because
there was no link between [Petitioner’s] claim of right and
her alleged unlawful conduct, [Petitionerl would not have a
claim-of-right defense under the MPC.

The HRS § 708-834(1)(b) version of the claim-of-right
defense, however, is broader than the MPC version. HRS §
708-834(1)(b) does not require that the defendant’s claim of
right prompted his or her conduct, but provides a defense to
a theft charge if the defendant “[b1elieved that [he or she1
was entitled to the property or services under a claim of
right.” [Petitioner’s] theory of defense was that she did
not obtain the welfare benefits by deception because she
honestly believed she had complied with the reporting
requirements. [Petitioner] either disputed the information
[Respondent] alleged she dishonestly concealed or contended
that she did not believe or know she was required to report
such information. In support of her defense, [Petitioner]
introduced evidence that she had alerted the DHS to changes
in her child care and employment situations, which she
contended contradicted [Respondent's] allegations of
deceptive concealment. We conclude that [Petitioner]
adduced sufficient evidence to warrant an instruction on her
claim-of-right defense.

ld; With all due respect, the 1CA’s discussion of the variation
in wording between HRS § 708-834 and the MPC does not recount a
imaterial difference. Both statutes manifestly refer to the
defendant’s state of mind at the time he or she “acted,” i;eL,

“obtain[ed]” or “exert[ed] control over” the property at issue.

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§ee HRS § 708-830(2). Hence, both versions require a “link
between [a defendant’s] claim of right and {the] alleged unlawful
conduct[,]” otherwise the defense could not negate the state of
mind of “obtain[ing] . . . property . . . by deception.” §ee idy
The state of mind of deception is inextricably linked to the
action of obtaining property and, accordingly, so must be any
defense capable of negating that state of mind. Hence, the lCA’s
conclusion that “[b]ecause there was no link between
lEetitioner’sl claim of right and her alleged unlawful conduct,
jPetitionerl would not have a claim-of-right defense under the
MQQ[,]” Stenger, 2008 WL 5413898, at *3 (emphasis added), applies
under HRS § 708-834 as well. The lCA's conclusion that
Petitioner should have had the benefit of a claim-of-right
defense then, was based on an incorrect premise.
B.

First, assuming, ar uendo, a claim of right instruction
is necessary in this case, it is already subsumed within the
mistake of fact defense. The Commentary on HRS § 708-834
recognizes that the claim of right defense is “probably

unnecessary” when a mistake of fact instruction is given:

Both the defenses allowed under § 708-834(1) are probably
unnecessary in light of an informed reading of the
substantive definitions of the various modes of theft. The`
existence of either condition (a) or (b) would relieve the
actor of the culpability required to establish the offense:
. a claim of right, assuming that it amounts to a belief
that the actor is the true owner, would not only indicate
that the actor did not have the requisite mental state, it
would constitute a mistake of fact defense under § 702-218.
The summary and restatement of this subsection is
principally for purposes of clarity and emphasis.

(Emphases added.) Thus, the Commentary confirms that claim of

right is a particular type of mistake of fact that would be

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logically encompassed under a general mistake of fact
instruction. A claim of right instruction, then, should only be
given where the circumstances of the case require it “for
purposes of clarity and emphasis.” ldy Those circumstances are
defined by the established meaning of claim of right, the
Commentary on HRS § 708-834, and case law, all of which indicate
that the instruction should be given only when the defendant
expresses a belief in true ownership rights to specific
identifiable property.
C.

Second, although Petitioner's “theory of defense []
that she did not obtain the welfare benefits by deception because
she honestly believed she had complied with the reporting
requirements[,]” Stenger, 2008 WL 5413898, at *3, warrants a
general mistake of fact instruction, manifestly, she did not
exercise such a belief “under a claim of right.” HRS § 708-834
(emphasis added). Petitioner argued at trial that she “believed
‘she was entitled to the benefits that she obtained and exerted
control over,’ based on the evidence that [Petitioner] reported
household changes to her caseworker.” However, the statute
requires not only a belief of entitlement, but that the defendant
was so entitled “under a claim of right.” lQ; lf a mere belief
of entitlement was enough, the “claim of right” language would be
rendered a nullity. Hence, the phrase “claim of right” must
carry a meaning distinct from “entitle{ment].” §ee County of
Hawafi v. 6 & J Coupe Family Ltd. P’ship, 119 HawaiH 352, 362,

198 P.3d 6l5, 625 (2008) (holding that “an interpretation of a

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statute must be rejected if it renders any part of the statutory
language a nullity” (brackets, quotation marks, and citation
omitted)).

1.

The term “claim of right” is not defined in the
statute. Black’s Law Dictionary states that a claim of right is
“[a] criminal plea, usu[ally] to a theft charge, by a defendant
asserting that the property was taken under the honest (but
mistaken) belief that the defendant had a superior right to the
property.” Black's Law Dictionary 266 (8th ed. 2004) (emphasis
added). ln this case, Petitioner has not exhibited any belief
that her “right” to the money received was somehow “superior” to

that of Respondent’s merely because she “reported household

changes.”
2.
The Commentary on HRS § 708-834 states that “a claim of
right . . . amounts to a belief that the actor is the true
Qyne;[.]”» (Emphasis added.) The “true owner” requirement

connotes that ownership of the property must precede the actor’s
attempt to “deprive” another of that property. Petitioner does
not claim that she was attempting to “recover” or “reclaim”
property over which she had “ownership” rights, as required by
the statute and the case law. Petitioner, on the other hand,
repeatedly claimed that her belief was “based on the evidence
that [she] reported household changes to her caseworker.” Such
action may provide evidence of a mistake of fact, iyey, that

Petitioner believed she was in compliance with the reporting

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requirements. But, it is not evidence that Petitioner acted
based on any pre-existing belief that she had ownership rights in
the benefits she received. Instead, receipt of the benefits was
a direct result of what was reported by Petitioner. Thus,
Petitioner was aware that benefits were conditioned on what she
reported to the DHS, in contradistinction to a belief in “p;pp
ownership” that existed prior to the act of deprivation.
3.

ln State v. Brighter, 62 Haw. 25, 30, 608 P.2d 855, 859

(1980) (per curiam), this court set forth that the claim must be

to specific property, stating that

“[i]t is vital to the defense, however, that the interest
which the accused asserts under a claim of right must be to
specific property, HRS [§] 708-834(1)(bj; State v. Martin,
[516 P.2d 753 (Or. App. 1973)], and the interest claimed by
'him must be in complete derogation of the victim's rights in
and to the property which is the subject of the alleged
robbery, HRS [§l 708-834(5).[“]

(Emphasis added.) See also State v. Brighter, 63 Haw. 105,
107-08, 621 P.2d 381, 384 (1980) (per curiam) (“This court has
held that where no bona fide claim of right is made to specific
property, the claim of right defense established by HRS § 708-834
is not available to a defendant charged with theft or robbery.”
(Emphasis added.) (Footnote and citation omitted.)). In Martin,
the case upon which Brighter relied, the defendant attempted to
assert a claim of right defense to robbery, where he attempted to
recover a debt from another by force. 516 P.2d at 753-54. The

Oregon Court of Appeals rejected that defense, emphasizing that

it is important to distinguish between, on the one hand,
situations where a person simply uses self-help to recover a

“ Subsection (5) has been renumbered to subsection (4) in the
present version of the statute, but the wording remains identical.

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specific chattel to which he has the right to immediate

ossession, and, on the other hand, situations where a
person attempts to collect a debt out of another’s money,
with no pretense of ownership rights in the specific coins
and bills.

ldp at 755 (emphases added). That court further recognized “that
intent to steal is absent when a person retakes wrongfully held
specific personal property to which he has the right to
possession.” ldp (citation omitted) (emphasis added). ln this
case, Petitioner has failed to show that the welfare benefits she
claims were “specific property.” 3
4.

A claim of right defense, then, must encompass (l) some
form of pre-existing ownership or possession of (2) specific
property. Here, Petitioner has not made any claim that she
received the benefits in an effort to “retake[] wrongfully held
specific personal property[,]” idp, from Respondent. lt would
defy reason to attribute to Petitioner a belief that Respondent
“wrongfully held” the benefits prior to distributing them to
Petitioner. 3

Other courts have similarly viewed a claim of right
defense as encompassing pre-existing ownership of specific
property, holding, like Brighter and Martin, that a general claim
that a debt is owed is not sufficient for a claim of right. For
example, in State v. Winston, 295 S.E.2d 46, 50 (W.Va. l982), the
Supreme Court of West Virginia rejected a claim of right defense
where the defendant “attempt[ed] to recover from the victim the
$7750 debt that was claimed to be owed.” lt was deemed
“important to note” that the previous cases where a claim of

right defense had been allowed “involved the recovery of specific

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property to which the owner claimed title.” ldp (emphasis
added). That court distinguished Winston from previous cases
where a claim of right instruction had been given, stating that
“[i]n the present case, we are not confronted with a defendant
who has recovered specific property to which he has a bona fide
claim of ownership.” lQp (emphases added).

Significantly, the winston court cited to Brighter, 62
Haw. 25, recognizing that, in Brighter, this court “limit[ed] the
claim of right recovery . . . to the recovery of specific
property.” ldp at 51 (emphasis added); see also Woodward v.
§papp, 855 P.2d 423, 427 (Alaska App. l993) (relying on Brighter
in rejecting defendant’s claim because he “was not attempting to
recover particular, identifiable property” (emphasis added)).
The Winston court ultimately rejected the claim of right defense,
concluding that “this defense is not available where the
defendant took money or other property, to which he did not have
a specific ownership claim, in satisfaction of a debt.” 295
S.E.2d at 51 (emphasis added). In explaining why debt recovery
does not support a claim of right defense, that court stated that
“[t]he most commonly expressed rationale for this rule arises
from the fact that in the debt recovery situation there is no
identifiable property which is reclaimable[.]” lQp at 50
(emphasis added).

California has adopted a similar rationale in its claim
of right cases, “limiting [the defense] to the perpetrator who
merely seeks to effect what he believes in good faith to be the

recovery of specific items of his own personal property.” People

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v. Waidla, 996 P.2d 46, 73 n.12 (Cal. 2000) (citation omitted)
(emphasis added). ln People v. Tufunqa, 987 P.2d 168, 181 (Cal.
1999), the California Supreme Court allowed a claim of right
defense in a debt collection situation because there was evidence
that the two hundred dollars reclaimed by the defendant was
actually the same bills he had just given to the victim. The
Tufunga court required the instruction on claim of right because

“if the jury, properly instructed, believed defendant’s

testimony, . . . defendant’s actions in seeking to recover from
the victim . . . what he believed in good faith was his specific

property” would negate the requisite intent. ld. (first emphasis’

added and second emphasis in original). Petitioner has not
argued any right to the “specific coins and bills,” Martin, 516
P.2d at 755, that she received from the government, thereby
failing to satisfy the requirement set forth in Briqhter that the
claim be to “specific property,” 62 Haw. at 30, 608 P.2d at 859.
D.
1.

A claim of entitlement to welfare benefits from
Respondent’s coffers amounts to nothing more than a claim that
“genera1 money” is owed. Several cases have reaffirmed the
proposition from Martin that a claim of right must be to
“specific coins or bills.” State v. Ramsey, 56 P.3d 484, 487
(Or. App. 2002), permitted the claim of right defense in a debt
collection case because the “defendant’s theory was that he was
trying to recover the specific money that [the victim] had

improperly taken from him[,]” and thus, “was not using force to

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recover a debt; rather, he was using force to recover specific
property.”“ (Emphases added.) In People v. Wooten, 44 Cal.

App. 4th 1834, 1848-49 (Cal. App. 2. Dist. 1996), the California
appellate court rejected the claim of right defense because there
was insufficient evidence to support such a claim, and it was
already covered by mistake of fact.” People v. Rosen, 78 P.2d
727, 729 (Cal. 1938), like Ramse , requires that the defendant
evince a belief that he or she took the property in an effort to

recover specific currency, requiring that “the accused must

intend in good faith to retake his own property.”" (Emphasis
” Ramsey reaffirmed the distinction “between using force to collect
a debt and using force to recover a specific chattel[,]” as set forth in

Martin, 516 P.2d 753, an earlier case by that same court. 56 P.3d at 487. ln
that case, there was sufficient evidence for the claim of right instruction
only because the defendant sought “to recover the money that [the victim] had

wrongfully taken from him . . . which, in this case, could mean the specific
currency he lost at the table[,]” and “[a]ccording to [the] defendant, he
sought only to retrieve his own money[.]” ;gp at 488 (emphases added). To
the contrary, in this case, Petitioner cannot reasonably claim that she was
seeking to “recover” or “retrieve” “specific money” that was “wrongfully” or

“improperly” taken from her by Respondent, let alone that she believed she was
seeking to recover “the specific currency” wrongfully taken from her by
Respondent. Thus, Ramsey illustrates just how inapposite the claim of right
defense is in this case.

“ Wooten similarly does not support a claim of right defense in this
case because, in that case, the appellate court affirmed the trial court's

refusal of the requested claim of right instruction. See 44 Cal. App. 4th at
1848. 1n Wooten, “[t]he trial court refused appellant's requested
instructions on [the claim of right] defense because it found them duplicative

of instructions on mistake of law and fact.” ;dp The appellate court found
“no error” because “the trial court had no obligation to give an instruction
on the claim of right defense because there was no substantial evidence to
support such a defense.” ;gp

" In Rosen, “the defendant [sought] the recaption of money lost by
him at an illegal game[.]” 78 P.2d at 728. The California Supreme Court’s
decision in that case was based largely on the fact that the activity through
which the defendant lost the money was illegal and thus, “the intent to steal
is lacking in such a case, for the law recognizes no title or right to
possession in the winner[,]” and, due to the illegality of the enterprise,
“the winner gains no title to the property at stake nor any right to
possession thereof; and that the participants have no standing in a court of

law or equity.” Id. (emphasis added). The theory is that “where the winner
obtains no valid title or right to possession of the money won . . . , the
(continued...)

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added.) ln this case, it would be incongruous to say that
Respondent obtained the benefits from Petitioner through illegal
activity, and that she was thus attempting to “retrieve” or
“retake” her “own money” or “own property” illegally held by
Respondent. §ee Bp§ep, 78 P.2d at 729; Ramsey, 56 P.3d at 488.
These cases confirm that claim of right cases are entirely
inapposite to the case at bar. There appears to be no case in
which claim of right is upheld as a defense to a charge of
welfare benefits theft.

Under the rationale set forth in Brighter, 62 Haw. 25,
and Martin, and affirmed by the foregoing cases, Petitioner
cannot claim any “ownership rights in the specific coins and
pill§” distributed to her in the form of benefits. Property can
only be “specific” where the defendant believes that the
particular identifiable item seized is the same as that which was
previously in the defendant’s possession. §ee Martin, 516 P.2d
at 755 (stating that a claim of right involves the use of
“self-help to recover a specific chattel to which [a defendant]
has the right to immediate possession” or “retak ing wrongfully
held specific personal property to which [a defendant] has the

right to possession” (emphases added)).

"(...continued)
loser cannot have a felonious intent in taking it.” ld. at 729 (ellipsis in
original) (citations omitted). That court further held that “in resisting the

charge of robbery by a showing that the intention was the recaption of money
lost at an illegal game, it is not incumbent upon the defendant to prove that
the money reclaimed was the identical money won from him,” but “the accused
must intend in good faith to retake his own property.” Id. (emphases added).
Thus, although the defendant was relieved from proving that the money he
actually recovered was the same currency he lost, the claim of right defense
nonetheless required that he believe in good faith that he was “retak ing his
own property.” lQp (emphasis added).

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2.

Under Petitioner’s seeming formulation of the claim of
right defense, once the defendant has deprived another of certain
property, that property somehow gains a “specific” character,
regardless of the defendant’s pre-existing relationship to that
specific item of property. However, that interpretation of
Brighter eviscerates any specificity requirement and, in conflict
with Bri hter, invites a claim of right instruction in cases
where a defendant exhibits belief in a general entitlement to
unspecified property that only gains its so-called “specific”
character afpe; it is in the defendant’s possession. To the
contrary, Brighter and Martin require that, prior to taking the
property, the defendant must believe that he or she is acting to
“recover” or “retake” “specific property” once held or owned by
the defendant. Brighter, 62 Haw. at 30, 608 P.2d at 859; Martin,
516 P.2d at 755,

Petitioner did not have any ownership rights in the
specific money distributed to her by Respondent. As far as
Petitioner was concerned, any “bills or coins” would have
satisfied her claim for benefits, not the particular coins and
bills given her by Respondent. Thus, Petitioner's claim is not
one of “true ownership” in “specific personal property” as
required under claim of right, but is merely a belief in
entitlement to some undefined future benefit that was never in
her possession at any point prior to the alleged theft. The
giving of a claim of right instruction in this case would remove

the distinction between that defense and mistake of fact, which

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was adopted by the penal code for the “purposes of clarity and
emphasis.” Commentary on HRS § 708-834.
3 E.

Based on the foregoing, the lCA gravely erred in
“conclud[ing] that Petitioner adduced sufficient evidence to
warrant an instruction on her claim-of-right defense.” Stenger,
2008 WL 5413898 at *3. Thus, despite this court's previous order
rejecting certiorari on the issue of claim of right, a claim of
right instruction is not appropriate on this record, and should
not be given.

lX.

With respect to Petitioner’s first question, in §;ppp,
this court “h[e]ld that the right of an accused to a unanimous
verdict in a criminal prosecution, tried before a jury in a court
of this state, is guaranteed by article I, sections 5 and 14 of
the Hawafi Constitution.”” 84 Hawafi at 30, 928 P.2d at 872.
Relatedly, A;ppp held that, because “a general verdict embodies
in a single finding the conclusions by the jury upon all
questions submitted to it, . . . in criminal cases, this

requirement of unanimity extends to all issues which are left to

” Article l, section 5 provides that “[n]o person shall be deprived
of life, liberty or property without due process of law, nor be denied the
equal protection of the laws, nor be denied the enjoyment of the person’s
civil rights or be discriminated against in the exercise thereof because of
race, religion, sex or ancestry."

Article l, section 14, states in pertinent part that “[i]n all
criminal prosecutions, the accused shall enjoy the right to a speedy and
public trial by an impartial jury of the district wherein the crime shall have
been committed . . . Juries, where the crime charged is serious, shall
consist of twelve persons.”

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the jury.” lgp (quotation marks, brackets, ellipsis, and
citation omitted).
A.
Based on those precepts, in A;ppp, the defendant argued

that,

given the [victim’s] testimony that Arceo committed multiple
acts of sexual penetration and sexual contact within the
context of single counts charging each - that either the
prosecution was required to elect the specific acts upon
which it was relying in seeking convictions of the charged
offenses or the circuit court was required to give the jury
a “specific unanimity” instruction as to each count.

ld. (emphases added). This court agreed, thereby

hold[ing] that when separate and distinct culpable acts are
subsumed within a single count charging a sexual assault -
any one of which could support a conviction thereunder - and
the defendant is ultimately convicted by a jury of the
charged offense, the defendant’s constitutional right to a
unanimous verdict is violated unless one or both of the
following occurs: (l) at or before the close of its
case-in-chief, the prosecution is required to elect the
specific act upon which it is relying to establish the
“conduct” element of the charged offense; or (2) the trial
court gives the jury a specific unanimity instruction, i.e.,
an instruction that advises the jury that all twelve of its
members must agree that the same underlying criminal act has
been proved beyond a reasonable doubt.

ld. at 32-33, 928 P.2d at 874-75 (emphases added).. This court's
holding in Arceo was based in part on its conclusion that sexual
assault, as it is defined by the HRS, is not a “continuous

offense.” ld. at 12, 928 P.2d at 854. Arceo noted that

[t]his court has defined a “continuing offense” as
a continuous, unlawful act or series of acts set on
foot by a single impulse and operated by an
unintermittent force, however long a time it may
occupy, or an offense which continues day by day, or a
breach of the criminal law, not terminated by a single
act or fact, but subsisting for a definite period and
intended to cover or apply to successive similar
obligations or occurrences.

ld. at 18, 928 P.2d at 860 (quoting State v. Temple, 65 Haw. 261,
267 n.6, 650 P.2d 1358, 1362 n.6 (1982)) (brackets omitted).

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A;pep also stated that “the 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. 1f there is
but one intention, one general impulse, and one plan, there is
but one offense.” ld. (brackets and citation omitted) (emphasis
added).
B.
This court subsequently characterized the test for

whether an Arceo instruction is necessary in Hironaka as follows:

Beyond the context of sexual assault charges, this court has
held that an Arceo unanimity instruction is required, absent
an election by the prosecution, when “at trial, the
prosecution adduced proof of two or more separate and
distinct culpable acts; and the prosecution seeks to submit
to the jury that only one offense was committed.”
Accordingly, Arceo is not implicated if the prosecution
adduces evidence of a series of acts by the defendant that
constitute a “continuous course of conduct,” and ppg
prosecution “argues that the requisite conduct element is
satisfied by the defendant’s continuous course of conduct,
albeit that the defendant’s continuous course of conduct may
be divisible into conceptually distinct motor activity.”

99 Hawafi at 207-08, 53 P.3d at 815-16 (citation, parenthetical,
ellipsis, brackets, and footnote omitted) (emphases added).
Thus, as long as evidence is adduced that the defendant engaged
in a continuous “series of acts” constituting the crime charged,
and the prosecution argues the case accordingly, a specific
unanimity instruction is unnecessary.
C.

Relevant here, the A;ppg court specifically noted that
“theft of state property by deception, in violation of HRS §
708-830(2) (1993)[,]” among other offenses, is an example of a

continuous offense. 84 Hawafi at 19, 928 P.2d at 861 (citing

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Martin, 62 Haw. at 367-69, 616 P.2d at 196-97). With regard to
theft by deception, as well as the other examples provided by
this court of continuous offenses, this court stated that “[e]ach
of these offenses is statutorily defined as an uninterrupted and
continuing course of conduct, or manifests a plain legislative
purpose to be treated as such, or both.” lgp (citation omitted).
ln Martin, this court addressed the question of whether
theft in the first degree constituted a continuing offense where
the defendant “wrongfully obtained public assistance monies
exceeding $200 from the State of Hawaii by deception[.]” 62 Haw.
at 365, 616 P.2d at l95. Recognizing that the question of
whether a crime constitutes a continuous offense was a matter of
first impression, Martin applied the test set forth in People v.
§pwp§, 222 P.2d 969 (Cal. 1950), requiring that the court
consider “‘whether the evidence discloses one general intent or
discloses separate and distinct intents[,]'” and stating that,
“if ‘there is but one intention, one general impulse, and one
plan, even though there is a series of transactions, there is but
one offense.'” Martin, 62 Haw. at 368, 616 P.2d at 196 (quoting
§pyp§, 222 P.2d at 976). Under that rationale, this court
concluded that there was “but one intention and plan here and

thus . . . there was one offense[,]” explaining that

[w]e do not view each filing by defendant of a statement of
facts supporting continued eligibility as necessarily
constituting a new offense, since all statements were
identical, representing that defendant was unmarried,
unemployed, and not receiving social security benefits.

ld. at 369, 616 P.2d at 197.

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D.
1.

Based on the foregoing, the lCA did not gravely err in
concluding that, on the facts of this case, theft by deception
constitutes a continuous offense. Although the facts are not
exactly the same as in Martin, inasmuch as, in that case, the
court based its conclusion in part on the fact that the
defendant’s “statements were identical,” lgl, the same rationale
applies here, because, based on Respondent’s presentation of the
case, Petitioner acted under “one general impulse,” lgl at 368,
616 P.2d at 196, and had “but one intention and plan,” lgl at

369, 616 P.2d at 197, i.e., to unlawfully procure public

assistance from the government through a “series of acts,” A;gpg,
84 HawaiYi at 18, 928 P.2d at 860, all directed toward the same
overarching goal.
2.
At trial, Respondent sought to prove that Petitioner

committed theft in the first degree by deception, through a
series of acts that occurred between July 2002 and May 2003, all
directed toward receiving public assistance from Respondent.
Although those acts were not identical, they all were closely
related, inasmuch as each involved Petitioner’s failure to report
personal information to DHS that impacted her financial status.
Respondent presented its case on the theory that all of those
acts combined resulted in a total overpayment of $23,034.00, not
that any of those acts individually, or any combination thereof,

could have amounted to more than $20,000.00.

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Respondent’s closing argument reflected that its theory
of the case was that a continuous “series of acts” committed by
Petitioner between July 2, 2002, and May 31, 2003, resulted in
theft in the first degree. ln that connection, Respondent
maintained that, “the offense of Theft in the First Degree [] was
committed during the period from July 2nd of 2002 through May
31st 2003.” (Emphasis added.) As to the total amount of

overpayments, Respondent stated that

[t]he next [element] is that the value of the property
exceeded $20,000. And as the [c]ourt read you an
instruction, amounts of theft committed pursuant to one
scheme or course of conduct may be aggregated; in other
words, added together in determining the class or grade of
the offense. And what that simply means is that if you find
that [Petitioner] had committed theft, you can add up all
the different instances where she committed theft and coming
[sic] up with a final total which will be the determination
of what kind of theft occurred in this case; and what we're
saying here is that it was over $20,000, and we know that by
a set of calculations that the last witness, fVallejo],
calculated.

(Emphases added.)

Respondent further asserted to the jury that Petitioner
engaged in a “pattern” of conduct resulting in the charge of
theft in the first degree, stating, “[W]hat you'll see is a
pattern of money going into th[e HSAl account, it may be small at
some times, but at others it’s significant, but the key point is,
is that that information was never reported as it should have
ppep[,]” (emphases added); “[t]he other kinds of things that we
should look at would be is there a further pattern of not

ll

complying with welfare laws[,] (emphasis added); and, finally
the point is, is that if you look at this pattern, it is not
simply a matter of isolated incident [sicl of mistakes being
made, lt is a pattern of something that was deliberately
done, and it was done to get free money from [Respondent]
that she did not deserve, and for that reason she committed

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this crime, and 1 would be asking you for a verdict of
guilty.

(Emphases added.) Respondent's theory was manifestly that
Petitioner committed the crime based upon a “pattern” of conduct.
3.

Hence, contrary to Petitioner’s assertion, this is not
a case in which “several acts are alleged and any one of them
could constitute the crime charged[,]” and, thus, there was no
need for Respondent to “elect the particular criminal act upon
which it will rely for conviction, or [for] the [court to]
instruct the jury [sic] that all of them must agree that the same
underlying criminal act has been proved beyond a reasonable
doubt.” Shinyama, 101 HawaiU_at 399, 69 P.3d at 527 (citation
omitted). By virtue of the manner in which the evidence was
presented in this case, in order to convict Petitioner of first
degree theft by deception, the jury would have had to be
unanimous as to all of the conduct alleged.

As stated app;a, Vallejo was the DHS eligibility worker
who determined the amount of public assistance Petitioner was
overpaid based on the allegedly false or incomplete information
she provided from July 2002 to May 2003. Vallejo's testimony
indicates she considered all of the evidence presented to her

when determining the total amount of overpayment:

{Respondent]: . . . so, l guess sort of the starting
point is how much assistance has been received?
[Vallejo]: Yes.

Q. And then what kinds of further things do you look
at in order to determine whether there were overpayments?

A. l would have to look at what was not reported to
[DHS] and see if she was entitled to the benefits that we
provided to her on a monthly basis.

Q. Okay. Now, in terms of the kinds of things that
you discovered were disqualifying factors, let’s say.

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A. Basica1ly, we looked at her household composition,
what was reported and not reported. We looked at income
that was reported and not reported. And resources that she
failed to report.

So we look at everything, household -- l looked at
everything when l did the overpayment. l look at household
composition, earned income, resources,

Q. So then the next thing that you have to look at
would be the kind of income that individual would have
received during a month?

A. Yes.

Q. And in terms of [Petitioner's] situation, what
kinds of things did you find?

A. l found that she, with her income, that she failed

to report. Some months is eligible. Some months is not
eligible. So l can give an example of -- let’s say in her
case she applied . . . July 2nd. And she reported two

people in her household.

The standard for three people is $712. She reported
the child support. However, there is $200 that she failed
to report from [HSA]. So her income of $774 exceeded the
712 standard; therefore, whatever she received for the month
of July, she was totally ineligible. And l followed that
[sic] steps when l did the August, September, October up to
May, 2003. And it’s the same thing with the food stamps,

Q. Okay. So the kind of income that you were judging
against were things like how much money that she was
receiving from her business, [HSA], and from 1 guess
employment from [DOE].

A. Right, and plus whatever the child support. For
the first two weeks, she was receiving child support that
she reported. So anything that she reported, plus
unreported income, were all considered on the amount that's
available to her.

Q. . . . Now, in terms of the calculations of
overpayments that you made, did you total up the amount of
overpayments for each category?

A. Yes, l did.

Q. And could you give that to the jury, please.

A. For the financial assistance, the overpayment is
7,350. For the food stamps, it’s 5,598. And for the
medical $l0,086 with a grand total of $23,034.

(Emphases added.) Thus, Respondent did not consider separately
for each month whether Petitioner would have been eligible based
on each item she failed to report, or on each of Petitioner’s

individual actions, but only performed the calculations based on
a combination of all of the reported and unreported items, or on

all of Petitioner's actions combined.

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Contrary to Petitioner’s assertion, then, there was no
way that “one juror cold [sic] have found that one set of acts
occurred that led to [Respondent] being deprived of more than
$20,000, while another juror could have found that a different
set of acts occurred that led to the deprivation of property
valued at more than $20,000[,]” (emphasis in original), and thus,
there was no unanimity issue.

X.
A.

Although Respondent presented its case with regard to
Theft in the First Degree (Theft l) as a continuous offense, and
therefore the lCA did not gravely err in concluding that the
court was right in rejecting a requested unanimity instruction as
to that count, we must conclude that the court gravely erred in
failing to give a unanimity instruction as to the lesser included
offense of Theft in the Second Degree (Theft ll), on which it
instructed the jury. -

An instruction on Theft ll was given by agreement of
the parties. The court gave Supplemental lnstruction No. 2,
which outlined the lesser included offense of Theft ll for theft

of property in excess of $300, under HRS § 708-831.”

” The Court’s Supplemental lnstruction No. 2 stated:

lf and only if you find the defendant not guilty of
the offense of Theft in the First Degree, or you are unable
to reach a unanimous verdict as to that offense, then you
must determine whether the defendant is guilty or not guilty
of the included offense of Theft in the Second Degree.

A person commits the offense of Theft in the Second
Degree if she obtains or exerts control over the property of
another, the value of which exceeds $300, by deception with
intent to deprive the other of that property.

(continued..J

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Respondent did not object to this instruction.” Thus, it can be
assumed that it was agreed that there was a rational basis in the
evidence for the Theft ll instruction. The only way that the
jury could conclude that the evidence adduced supported a
conviction on the Theft ll charge, but not Theft l, would be by
rejecting some quantum of the evidence presented by Respondent.
ln that connection, defense counsel argued during the
settling of jury instructions that an A;pap instruction was

required with respect to the Theft ll charges

The second issue that l have that l feel a lot more strongly
about is the [Arceo] issue. l know the [c]ourt's position
is that this basically constitutes a continuous course of
conduct. And normally in these type [sic] of theft cases,
especially welfare cases where circumstances don’t change
from month to month for a period of say a year, l would
agree with that, But in this case [Respondent] has
introduced basically several different ways to disqualify
[Petitioner] from the welfare benefits; and because in any
given month they are given ways to disqualify her, it is
very possible that jurors could find she obtained benefits
in one month illegally and in one month she did not.

And my main concern is should they come back --
because we’re talking about an amount that is a little bit
over the threshold amount. lf they came back with a Theft
ll verdict, then it would be in violation of fArceo] if some

”(...continued)
There are five material elements to the offense of
Theft in the Second Degree, each of which the prosecution
must prove beyond a reasonable doubt.
These five elements are:

1. That the Defendant obtained and exerted control
over the property of the State of Hawaii; and

2. That the Defendant did so by deception; and

3. That the Defendant did so with intent to deprive
the State of Hawaii of the property; and

4. That the value of the property exceeded $300;
and

5. That the Defendant believed that the value of

the property exceeded $300.
(Emphasis added.)

” At oral argument on July 20, 2009, Respondent indicated that it
made no objection to the court's Theft ll instruction because Respondent
believed it had a strong case for Theft l. However, if Respondent failed to
object to a Theft ll instruction, it cannot now contend a Theft ll instruction
should not have been given or was superfluous.

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of the jurors felt like -- if half the jurors, say felt like
[Petitioner] obtained benefits for the first half of the
year, but the other half felt like she obtained benefits for
the second half of the year,

(Emphasis added.) As indicated by defense counsel, if the jury
were to return a verdict on Theft ll, by virtue of rejecting some
quantum of the evidence presented by Respondent, absent a
unanimity instruction, it would be impossible to know which
“series of acts” resulted in the Theft ll charge.
ln concluding that an A;pap instruction was

unnecessary, the court stated it believed that the case law was

pretty much consistent with the finding that the Theft 1
charged in this case as well as the Theft ll, which is a
lesser included offense, that the [c]ourt is going to allow
the [c]ourt to consider continuing offenses that involve
from the evidence a continuing course of conduct.

And as long as [Respondent] argues them as a
continuing course of conduct, l think we are okay as far as
[Arceo] is concerned, and so those are the reasons for the
[c]ourt's rejecting [Petitioner's] instruction on the
[Arceo] grounds.

(Emphases added.) The court's statement evinces that it may have
overlooked the fact that Respondent never Yargue[d Theft ll] as a
continuing course of conduct,” but, instead, asserted that “what
we’re saying here is that it was over §20,000, and we know that
by a set of calculations that the last witness, [Vallejo],
calculated[,]” (emphasis added), and that Petitioner engaged in a
pattern of conduct that resulted in a “grand total of $23,034[,]”
(emphasis added). Thus, the second requirement from Hironaka,
that “the prosecution argue[] that the requisite conduct element
is satisfied by the defendant’s continuous course of conduct,” 99
Hawafi at 208, 53 P.3d at 816 (citations omitted), was not

satisfied as to the Theft ll offense.

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Based on the foregoing, if the evidence is presented in
a similar manner upon remand, a unanimity instruction will be
necessary as to the Theft ll charge, in order to ensure that/ in
the event that a Theft ll verdict is returned, the jury agrees
unanimously upon the underlying conduct resulting in the Theft ll
conviction, thereby fulfilling “the purpose of an a;pap unanimity
instruction[,]” which “is to eliminate any ambiguity that might
infect the jury’s deliberations respecting the particular conduct
in which the defendant is accused of engaging and that allegedly
constitutes the charged offense.” State v. Kassebeer, 118
HawaFi 493, 508, 193 P.3d 409, 424 (2008) (citation omitted).“

B.

Additionally, if it is undisputed that Petitioner was
entitled to an instruction on Theft ll, reason dictates that
Petitioner was also entitled to jury instructions on the lesser
included offenses of Theft in the Third Degree (Theft lll) under
HRS § 708-832 (1993), and Theft in the Fourth Degree (Theft lV)
under HRS § 708-833 (1993).

1.

The Commentary on HawaFi theft statutes, HRS §§ 708-

830 to 708-833 (1993), establishes varying degrees of theft based

on the value of the property or service.

“ Based on the foregoing, it should be noted that, although theft by
deception has been defined as a continuous offense in other contexts, where it
does not satisfy the requirements for a continuous offense that have been set
forth in our case law regarding specific unanimity instructions, the offense
will not be considered continuous. Thus, Martin does not stand for the
proposition that theft by deception is always a continuous offense, but only
that it may be under certain circumstances, such as those presented herein
with regard to Theft l. However, when the dangers of Arceo are implicated,
i.e., when uncertainty exists over which specific acts of the defendant
support a given offense, a specific unanimity instruction is necessary.

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The Code is in accord with the [MPC] and other recent
revisions in grading the theft offenses according to the
mode of the theft, the object involved, and the value of the
property or services stolen; The gradation is based on the
theory that theft from the person, or of a firearm, or al
property or services of relatively high value presents
greater social harm and that the actor in such cases may
require greater rehabilitation efforts. Moreover, the
ordinary person, insofar as value of the property or
services is concerned, “fee1s a lesser repugnance to taking
small amounts than large amounts.”

(Footnote and citation omitted.) (Emphases added.) This court
has stated that trial courts “must instruct juries as to any
included offenses when ‘there is a rational basis in the evidence
for a verdict acquitting the defendant of the offense charged and

convicting the defendant of the included offense[.]” State v.

Haanio, 94 Hawai‘i 405, 413, 16 P.3d 246, 254 (2001) (citing HRS

§ 701-109(5) (1993)).

But, while the court provided jury instructions on the
lesser included offense of Theft ll, it refused jury instructions
on lesser included offenses of Theft lll (the “Court’s

Supplemental lnstruction No. 3”)” and Theft lV (the “Court’s

” The “Court’s Supplemental lnstruction No. 3,” which was refused
over objection by Petitioner, states:

lf and only if you find the defendant not guilty of
the offense of Theft in the First Degree, or you are unable
to reach a unanimous verdict as to that offense, and you
find the Defendant not guilty of the offense of Theft in the
Second Degree, or you are unable to reach a unanimous
verdict as to that offense, then you must determine whether
the defendant is guilty or not guilty of the included
offense of Theft in the Third Degree.

A person commits the offense of Theft in the Third
Degree if she obtains or exerts control over the property of
another, the value of which exceeds $100, by deception with
intent to deprive the other of that property.

There are five material elements to the offense of
Theft in the Third Degree, each of which the prosecution
must prove beyond a reasonable doubt.

These five elements are:

1. That the Defendant obtained and exerted control
over the property of the State of Hawaii; and
2. That the Defendant did so by deception; and
(continued..J

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Supplemental lnstruction No. 4”)” over objections by Petitioner.

During the settlement of jury instructions,
Petitioner’s counsel objected to Jury lnstruction No. 8.04 as
modified, which added the offense of Theft ll to the jury’s

consideration. lnstruction No. 8.04, as modified, states:

You may bring in one of the following verdicts:
l. Not guilty; or
2. Guilty as charged; or

”(...continued)

3. That the Defendant did so with intent to deprive
the State of Hawaii of the property; and

4. That the value of the property exceeded $l00;
and

5. That the Defendant believed that the value of

the property exceeded $l00.
(Emphases added.)

” The “Court’s Supplemental lnstruction No. 4,” which was also
refused over objection by Petitioner, states:

lf and only if you find the defendant not guilty of
the offense of Theft in the First Degree, or you are unable
to reach a unanimous verdict as to that offense, and you
find the Defendant not guilty of the offense of Theft in the
Second Degree, or you are unable to reach a unanimous
verdict as to that offense, and you find the Defendant not
guilty of the offense of Theft in the Third Degree, or you
are unable to reach a unanimous verdict as to that offense,
then you must determine whether the defendant is guilty or
not guilty of the included offense of Theft in the Fourth
Degree.

A person commits the offense of Theft in the Fourth
Degree if she obtains or exerts control over the property of
another, of any value not in excess of $100, by deception
with intent to deprive the other of that property.

There are five material elements to the offense of
Theft in the Fourth Degree, each of which the prosecution
must prove beyond a reasonable doubt. f

These five elements are:

l. That the Defendant obtained and exerted control
over the property of the State of Hawaii; and

2. That the Defendant did so by deception; and

3. That the Defendant did so with intent to deprive
the State of Hawaii of the property; and

4. That the property was of any value not in excess
of §100; and

5. That the Defendant believed that the property

was of any value not in excess of $100.
(Emphases added.)

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3. Guilty of the included offense of Theft 2.

Your verdict must be unanimous.

After a verdict has been reached and your foreperson
has signed and dated the verdict form, you will notify the
bailiff, and court will be reconvened to receive the
verdict.

However, Petitioner’s counsel's objection was not to the essence
of second degree theft, but to the refusal of the court to also

instruct on the offenses of third degree and fourth degree theft:

Judge, l guess this goes to the instruction we were about to
talk about. l think that there is a scintilla of evidence
that the jury could come back in an amount between $100 and
$300 certainly, and even possibly less than $100 of an
amount is likely, but l think a scintilla exists for both
Theft lll and lV.

(Emphases added.) Petitioner's counsel made the same objection
to the court's refusal of the court's supplemental instructions
nos. 3 and 4, noted above, ln refusing the instruction, the
court stated, “The [c]ourt does not think there's a rational
basis in the evidence to convict of the lesser included
offenses[.]” But the court did not explain why it determined
there was a rational basis for giving a second degree theft
instruction but not theft in the third and fourth degree

instructions.“

“ The court also refused Petitioner's Amended Requested Jury
lnstruction No. l, which states in part:

ln order for you to find Defendant ANGELA STENGER
guilty of Theft in any degree, you must unanimously answer
at least one of the following questions with a “yes”
response on the special interrogatory form which will be
provided to your
Did you unanimously find beyond a reasonable doubt
that Defendant ANGELA STENGER obtained and exerted control
over the property of the State of Hawaii by deception and
(continued...)

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2.
The court instructed the jurors that they were the
exclusive judges of the “effect and value of the evidence” and

“credibility of the witnesses”:

While you must consider all of the evidence in determining
the facts in this case, this does not mean that you are
bound to give every bit of evidence the same weiqht. You
are the sole and exclusive judges of the effect and value of
the evidence and of the credibility of the witnesses.

(Emphasis added.) The court also instructed the jury on the

credibility and weight of testimony:

lt is your exclusive right to determine whether and to
what extent a witness should be believed and to give weight
to his or her testimony accordingly. ln evaluating the
weight and credibility of a witness’s testimony, you may
consider the witness’s appearance and demeanor; the
witness’s manner of testifying; the witness’s intelligence;
the witness’s candor or frankness, or lack thereof; the
witness’s interest, if any, in the result of this case; the
witness’s relation, if any, to a party; the witness’s
temper, feeling, or bias, if any has been shown; the
witness’s means and opportunity of acquiring information;
the probability or improbability of the witness’s testimony;
the extent to which the witness is supported or contradicted
by other evidence; the extent to which the witness has made
contradictory statements, whether in trial or at other
times; and all other circumstances surrounding the witness
and bearing upon his or her credibility.

lnconsistencies or discrepancies in the testimony of a
witness, or between the testimony of different witnesses,
may or may not cause you to discredit such testimony. ln
weighing the effect of inconsistencies or discrepancies,
whether they occur within one witness’s testimony or as
between different witnesses, consider whether they concern
matters of importance or only matters of unimportant detail,
and whether they result from innocent error or deliberate
falsehood.[”]

“(...continued) 3
with the intent to deprive the State of Hawaii of the
property during any of the following months:

(Emphasis added.) This requested jury instruction listed each month from July
2002 to May 2003, with spaces for the jury to “indicate the amounts which you
unanimously agree Defendant obtained control over during this month” in
financial benefits, food stamp benefits, and/or medical benefits.

” The court additionally instructed the jury that if “you find that
a witness has deliberately testified falsely to any important fact or
(continued...)

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(Emphases added.)

The court's instructions that the jury may in effect
reject part or all of a witness’s testimony or other evidence
allowed the jury to independently determine to what extent, if
any, deception had been employed by Petitioner and, thus,
countenanced not only an instruction as to second-degree theft,
but also instructions on third-degree and fourth-degree theft.
Because the jury was the exclusive judge of the “value of
evidence” and “credibility of witnesses,” it had the ultimate

discretion to decide “to what extent a witness should be'

qbelieved” and whether “to discredit” testimony. Hence, the jury

could determine, based on its evaluation of the witnesses’
testimony and evidence, that varying amounts of less than $20,000
had been obtained by deception.

Because the court instructed the jury that it could
reject the testimony of any witness except for parts “which you
nevertheless believe to be true,” the jury could find Petitioner
committed theft of not only less than $20,000, but less than $300
or less than $100, making the offenses of Theft lll or Theft lV
applicable. This is the only logic that can be applied to the

giving of the second-degree theft instruction. lf the jury could

”(...continued)
deliberately exaggerated or suppressed any important fact, then you may reject
the testimony of that witness except for those parts which you nevertheless
believe to be true.”

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determine that Petitioner obtained less than $20,000 by deception
but more than $300, it was free, on the same evidence, to
determine alternatively that even less was obtained by deception.
Respectfully, the court's refusal to provide
instructions on the lesser included offenses of Theft lll and
Theft lV was inconsistent with the giving of an instruction on
Theft ll inasmuch as, on the same evidence, the extent to which
such evidence was credible was within the jury’s exclusive
discretion to determine, ln light of the circumstances, as tried
by Respondent, jury instructions on the lesser included offenses
of Theft lll and Theft lV should have been given.%
3.
lt is established in this jurisdiction that “juries are
obligated to render true verdicts based on the facts presented;
hence, barring their consideration of lesser included offenses
supported by the evidence undermines their delegated function.
Most significantly, an all or nothing approach impairs the
truth seeking function of the judicial system.” Haanio, 94
HawaiH.at 415, 16 P.3d at 256 (citation omitted). As was said
in Haanio:

The judicial objectives within the context of the criminal
justice system are to assess criminal liability and to
determine appropriate punishment if and when warranted.
Acceding to an “all or nothing” strateQY/ albeit in limited
circumstances, forecloses the determination of criminal
liability where it may in fact exist. Thus, elevating a

“ Based on the rationale set forth supra regarding Theft ll, it
would also be necessary that the specific unanimity instruction be applied to
the lesser included offenses of Theft lll and Theft lV.

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“winner take all” approach over such a determination is
detrimental to the broader interests served by the criminal
justice system.

lap at 414, 16 P.3d at 255.

ln light of the “all or nothing strategy” of
Respondent, an omission of relevant lesser included offense
instructions is contrary to the proposition that the jury must
seek the truth. This critical jury function requires that its
members be fully informed on the law as instructed by the court.
Therefore, providing instructions on all lesser included offenses
with a rational basis in the evidence is essential to the
performance of the jury’s function.

Xl.

Based on the foregoing, the lCA's judgment is vacated
in part, the court's judgment is vacated, and the case remanded
for a new trial consistent with this opinion.

Karen Nakasone, Deputy /j€7\---<><9¢“”W\_:;:
Public Defender .
(Taryn Tomasa, Deputy

Public Defender, on the @@wQ€»i3wV5)9~
briefs and application)

for petitioner/ '
defendant-appellant. w L""“'

Lawrence A. Goya,
Deputy Attorney General
for respondent/
plaintiff-appellee.

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