*1 271 clearly the law or on a erroneous assessment Lepere
of the evidence.” v. United Pub.
Workers, Local 77 Hawai'i (1995) (quotation
P.2d marks and omitted). any
brackets Given the lack of
finding's prejudice against Kaho'ohalahala findings exception warranting other complaint, given
denial to amend the appeal’s the court to have based its law, wrong on a
denial view of the must
concluded that there was an abuse of discre apparently
tion. As attempts Plaintiffs were
ing state an alternative of relief warranto,
way quo leave to amend the
complaint granted. should have been Be
cause leave to amend should otherwise be 15(a),
“freely given,” May HRCP Rule denying
Order Plaintiffs’ motion for leave to complaint
amend its must be reversed. On
remand, permit the court is ordered to Plain complaint quo
tiffs to amend their to include
warranto relief.
VIII. herein,
For the reasons stated the court’s May
March Order and 7 Order are re-
versed, vacated, Judgment and the disposition
ease remanded for consistent with opinion. Hawai'i, Respondent/Plaintiff-
STATE
Appellee
Angela STENGER, Petitioner/Defendant-
Appellant.
No. 27511.
Supreme Court of Hawai'i.
March
(cid:127)272 *3 Nakasone, Deputy
Karen Public Defender Tomasa, (Taryn Deputy Defender, Public application) the briefs petitioner/de- and fendant-appellant. Goya, Deputy
Lawrence A Attorney Gen- eral for respondent/plaintiff-appellee. ACOBA, DUFFY, JJ., and and Circuit Judge assigned KIM vacancy; due to a concurring substitute Justice KIM MOON, C.J., separately; and Dissenting; NAKAYAMA,J., and dissenting, with whom MOON, C.J., Joins.
Opinion ACOBA, by of the Court J. (1) We hold that Petitioner/Defendant-Ap pellant Angela (Petitioner) Stenger enti was tled to a mistake of fact instruction under (HRS) § Hawai'i Revised Statutes 702-218 (1993)1; (2) holding, based on that it would inappropriate for the circuit court of the (the court)2 first circuit to also a claim right pursuant § instruction to HRS 708- 834(1) (3) (Supp.2002)3; under the circum ease, first-degree by stances of this theft 708-830(2) deception §§ under HRS 708-830.5(l)(a) (1993)4 continuing ais of provides § 1. HRS 702-218 [i]t is a defense to a for theft that the defendant: offense, any prosecution [i]n for an it is a (a) property Was unaware that the or service engaged pro- defense that the accused in the another; ignorance hibited conduct under or mistake of (b) Believed that the was entitled to the defendant fact if: property right or services under a claim ignorance negatives or mistake the state authorized, by that the defendant was the own- of mind to establish an element of the law, er or to obtain or exert control as the offense; or defendant did. defining The law the offense or a law related added.) (Emphasis provides thereto that the state of mind estab- ignorance lished such or mistake constitutes 708-830(2) provides part § 4.HRS in relevant a defense. person person that "[a] commits theft if the obtains, over, property or exerts control presided. 2. The Honorable Richard K. Perkins by deception deprive another with intent to added.) property.” (Emphasis other of the HRS 708-834(1) 708-830.5(l)(a) § § 3. HRS person states that "[a] states that com- did not thus, reject instruction where she fense, right in the court was specific unanim in the bene- request for a interest welfare ing Petitioner’s sufficient charged offense of ity rejected as to the By instruction this court fits. a 3-2 vote (4) however, Peti Degree; Theft in the First Stenger, application. No. See State unanimity instruction 2009) (Aco- to a (Haw. tioner was entitled April WL Theft in the included offense of as to the Kim, J., ba, J., separately, dissenting (Supp. § Degree HRS 708-831 Second under dissenting separately). 2002)5; entitled to Petitioner was application for writ of certio- In the second included of jury instructions on lesser rari, April filed Petitioner Degree in the Third under of Theft fenses (Application), seeks review of the Petitioner (1993)6; Theft in the § HRS 708-832 *4 SDO, judgment ICA’s and basis § Degree HRS 708-833 Fourth under (1) gravely holding in “that the ICA erred (1993)7; Respon additionally, assuming refusing in did not err [court] (Re dent/Plaintiff-Appellee State of Hawai'i instruction!,]” specific unanimity and way, presents its case in the same spondent) mis- was not entitled to a [Petitioner] “that instructions will be entitled to such Petitioner take of fact instruction.” reasons, judg For those upon remand. Appeals Court of ment of the Intermediate 2009, (ICA) 30, pursuant to January filed on I. 31, Summary Disposition its December Petitioner, 2002, high-risk to a In June due (SDO),8 Stenger, No. Order State pregnancy, her work as a substitute ceased 119 Hawai'i WL Department of Education teacher with the 31, 2008), vacating the (App. Dec. (DOE), Acade- and also for the Hawai'i Surf court, Judgment filed
August (HSA), my operated a business owned and first-degree theft convicting Petitioner applied for Petitioner. Petitioner thereafter 708-830(2) §§ deception under HRS aid, coverage, food medical financial 708-830.5(l)(a) (1993), part, in is vacated assistance), Depart- stamps (public from the vacated, and the case is judgment is court’s (DHS). At the ment of Human Services this trial consistent with remanded for new aid, applied Petitioner had two time she for opinion. children, (Kaelin) Keana Himphill Kaelin application for writ of This is the second (Keana). Himphill applica- ease. In the first certiorari this (Cambra), On June Terri Cambra tion, this court to review Respondent9 asked DHS, eligibility supervisor for interviewed judgment, January the ICA’s Petitioner, applications to and reviewed her gravely ruling erred in ground that the ICA eligible public for elaim-of- determine whether she was was entitled to the that Petitioner 708-832(1) pertinent part degree § if the 6. HRS states of theft in the first mits the offense services, property person theft [o]f commits person commits the offense of theft [a] $20,000[.]” exceeds HRS the value of which degree person third if the commits theft: part provides, (Supp.2002) § in relevant 708-800 (a) properly or services the value of Of $100[.] exceeds person knowing- "[deception” when a occurs 708-833(1) provides person ly: § "[a] 7. HRS impression degree another’s Creates or confirms in the fourth commits the offense of theft the defendant does person property which is false and which theft of or ser- commits true; believe to be $100.” vices of value not in excess of impression which the a false Fails to correct confirmed!)] previously person has created or by Presiding Judge Daniel 8. The SDO was filed Judges Craig Foley, H. Naka- R. and Associate 708-831(1) part, provides, § in relevant 5.HRS Fujise. and Alexa D.M. mura actually proceeding In that the State was person of theft commits offense [a] Petitioner, reference, opinion person for degree commits theft: but ease if the second throughout, Respondent refers to the State Respondent (b) for the State is the property value of which inasmuch as or services the Of purposes application. of the instant $300[.] exceeds reported assistance. Petitioner that she had because she had believed that Keana was to $300, Bank of America account with and an return in a few weeks. Savings cheeking American account. She re- In March Petitioner made efforts to $570, monthly ceived child work, return to and wrote a letter to Carde- last worked for the DOE in June 2002. informing working, nas her that she started Petitioner, Upon meeting with Cambra begin teaching. as she intended to substitute responsibilities penalties went over the However, Petitioner had a difficult time find- assistance, receiving public associated with care, and, ing although child she worked application, including which are listed on the intermittently, report did not the income information, penalties providing for false “regular.” because it was not Petitioner and requirement and the changes that all be re- Respondent stipulated that Petitioner re- ported days. signed within ten Petitioner following unreported wages ceived the aas application stating statement on the that her during substitute teacher the time she was correct, answers were true and and that she receiving public assistance: penalties giving understood the for false in- time, October 2002: formation. At that $232.62 Petitioner did not March 2003: $359.40 qualify public assistance, because she ex- April 2003: *5 $599.00 ceeded the income limit. April 2003: $119.80 2, 2002, July reapplied On Petitioner for 5,May 2003: $119.80 assistance, public eligi- and was found to be 20,May 2003: $239.60 ble. grandfather passed In Petitioner’s 22, 2002, August gave On Petitioner birth $5,000, away, leaving Petitioner a check for (the twins, Jadelyn Stenger to and Jolene gave which Petitioner to her mother. Peti- twins). sisters, In October of two placed portion tioner’s mother of the mon- (Aea) Geiger Pearlinda Aea Ann Sheila Hawaii, ey in a trust account at Bank of sisters], (Geiger) (collectively, began as- which, death, upon go her would to Petition- sisting Petitioner with the twins’ care. Ac- (Takahashi), er. Scott Takahashi custodian Petitioner, cording to for sisters cared Hawaii, of records for Bank of testified that a couple days the twins a a week between payable depos- check to Petitioner was $5000 May According October 2002 accounts, ited into different for three Aea, days she cared for Jolene 16 or more signatory Petitioner either or the was. per According Geiger, month. she cared Petitioner, beneficiary. According to she di- Jadelyn days per for three to four week accounts, deposit- vided the into three $5000 October which escalated thereafter. account, ing into the HSA into $1000 $500 Geiger claimed that after December account, $3,500 personal her into the Jadelyn stay overnight did not with Petition- reported trust account. Petitioner never paid er. The sisters were not for this ser- to DHS. $5000 16, 2002, in- vice. On December Petitioner public her formed DHS assistance case Takahashi further testified that Petitioner (Cardenas) Lyn writing worker Cardenas business, opened checking account for her watching that the sisters were the twins two HSA, July for which Petitioner week, days per three and that Petitioner’s signer. was the sole authorized The HSA occasionally mother watched Kaelin and Kea- July 2002 statement showed an account’s na. $3,090.21 closing opening balance of and a Activity July balance of for includ- $191.48. January In Petitioner sent Kaelin payable ed a check to Petitioner $285 and Keana to live with their father in Ore- Support Child En- from the State of Hawai'i gon, custody and transferred of both children (CSEA) money However, Agency and a or- forcement over to him. Petitioner claimed payable to Petitioner. Tak- arrangement only der for also $200 that she intended the to be September ahashi further testified that temporary. January, reported In Petitioner out, deposits credit card to that that Kaelin had until there were moved but waited out, $2,532.63, $1,950.00. There April report that Keana had moved account for regard deposit right. of claim of to the was another credit card HSA defense With instruction, unanimity argued January 2003 for Petitioner account $747. position jury] need[s] “[Petitioner’s] [the May informed Carde- In Petitioner wrongful- be unanimous on which months she that she wanted to be removed from nas ly Respondent obtained these benefits[.]” public started assistance because she had argued unanimity that a not instruction was working frequently and the more twins were appropriate because the offense constituted a staying with the sisters full time. continuing agreement Re- offense. with Investigator, Ter- A DHS Welfare Fraud spondent, the court denied Petitioner’s re- Miyasato (Miyasato), investigated rence Peti- quest. anonymous tips. Miyasato tioner based on regard right, to claim of With conducted interviews and obtained informa- orally requested counsel (Vallejo), Vallejo tion about the HSA. Nina right pursuant instructed on claim of to HRS eligibility with the State’s Investi- worker “ § Petitioner ‘believed she because Office, Miyasato gation worked with on Peti- was entitled to the benefits that she obtained the amount of tioner’s case determine Respondent and exerted control over[.]’” overpayment. Vallejo determined that Peti- countered that did not ‘meet the HSA, “[Petitioner] tioner’s income and assets from the precedent right’” conditions for a claim of DOE, income from failure to testimony because there was that Petitioner report living that her children were pro- both withheld relevant information and her, disqualified receiving- Petitioner from vided false information in order to obtain the assistance, public separately and evaluated benefits. The court denied the for a how each of those factors related to the claim of instruction. financial, stamp, food and medical assistance July that Petitioner received between *6 court, by agreement of both Petitioner May Vallejo and considers household Respondent, provided and instructions on size, income, resources, monthly financial and Degree, in the Theft First and the included guidelines determining income when whether Degree. offense Theft the Second eligible public an individual is for assistance. She testified that without the children in the III. house, eligible any Petitioner was not behalf, financial assistance on their but Peti- trial, 7, 2005, Following the on June the could tioner still receive assistance she guilty Theft in the found Petitioner Vallejo qualified right. in her own based her Degree. First overpayment calculation of Petitioner’s appeal, On Petitioner Miyasato’s report, testimony, amount on trial 1) by: erred assert[ed] [court] Vallejo, According and bank statements. to instruction, refusing give request- to $7,350.00 overpaid Petitioner in financial [Petitioner], claim-of-right ed on the assistance, $5,598.00 stamps, and food 2) defense; failing sponte give sua to a $10,086.00 medical, $23,034.00. totaling instruction; 3) giving mistake-of-fact in- assumption That amount was based on the structions, to had [Petitioner] which testimony reports that the and were true and agreed, properly failed to instruct Vallejo any conceded that if items were not on the material elements for first- true, change. the calculations would 4) theft; degree refusing give unanimity requested specific instruction as II. by [Petitioner]. July charged On Petitioner was Degree Stenger, indictment with Theft in the First at *1. The ICA WL 708-830(2) refusing §§ in violation of HRS and 708- held “that the erred in [court] 730.5(l)(a). trial, claim-of-right At the defense submitted a instruct on the de unanimity not proposed pursuant instruction fense” because Petitioner “did obtain Arceo, by deception” “honestly State v. 84 Hawai'i welfare benefits but (1996), reporting complied and also an instruction on the believed she had with the *310; (2) requirements!],]” id. at “[Petition urges Respondent defense.” Petitioner do er’s] claims prove mistake-of-faet had to “by deception, that she acted defense[,]” only because specifically, “[t]he ‘mistake’ knowingly creating, confirming, claimed was that failing [Petitioner] she did not impression[,]” to correct a false report (citing 708-800, 708-830(2), believe she was §§ certain HRS events[,]” 708-830.5), undisputed and “a testimony mistake con that “[Petitioner’s] cerning reported what was to be that she did not report believe she had to law, fact[,]” changes directly was a mistake of not a mistake of relates to her mistake as to *4; id. at whether impression.” the court’s she created a false on the instructions Thus, first-degree argues prejudi- theft offense Petitioner that if she “were not “mistak- erroneous!,]” id.; cially enly insufficient believed that she report did not need to changes, the court by refusing mistakenly did not err then she give believed instruction, specific unanimity she did not create impres- because false “[i]u case, sions[,] charged first-degree which is a material Al- element[.]” theft of though proven fense can be Petitioner request as a failed to continuous of mistake fense[,]” trial, Respondent fact instruction “treated [Petition maintains that charged supported er’s] “[t]he theft offense as a evidence adduced at trial continuous [Petitioner,]” offense in its the instruction id. and the [court’s] failure to give [it] at *6. constituted substantial error that harmless[,]” because, cannot be deemed “[i]f “agree[d] Because the ICA that the [court] the trier of fact believed that [Petitioner] was denying erred in [Petitioner’s] ..., mistaken single allegation as to a be instructed on the claim-of-right would have afforded mitigating [Petitioner] a defense,” it “vacate[d Petitioner’s] conviction by reducing the class of the offense.” and remandfed] for a new trial.” Id. at *1. B. IV. Respondent counters that “the [court] did presents following questions Petitioner plain failing not commit error in Application:
in her
jury an instruction on the defense of mistake-
gravely
1. Whether
the ICA
erred in
of-fact where there was no credible evidence
holding that
[court]
did not err in
*7
to warrant such an
According
instruction.”
refusing
specific
to
unanimity in-
Respondent,
struction.
[t]he conduct that led to
con-
[Petitioner’s]
gravely
the ICA
Whether
erred in
viction,
against
and the conduct
which her
holding that [Petitioner] was not entitled
claim
judged,
mistake-of-faet
must be
was
instruction.[11]
jury
to mistake of fact
deception
[Petitioner’s] use of
to obtain
Respondent did not file a memorandum in
welfare funds to which she was not enti-
opposition.
tled,
(1)
by failing
report
that:
her
her, (2)
living
children were not
with
she
V.
$5,000.00 lump
payment,
received a
sum
DOE,
A.
she received income from the
and
(4) she received income from HSA.
question,
As to her second
Petitioner ar-
Respondent maintains that “[Petitioner’s] re-
gues
“[t]he
that
ICA’s conclusion
[Peti-
[Respondent’s]
buttal
evidence that she
testimony supported
tioner’s]
a mistake of
intentionally withheld information about the
law,
fact,
rather
than a mistake of
following:
children” consisted of the
wrong[,]”
testimony
because “[Petitioner’s]
income,
twins,
allegations
Jolene,
as to the
DOE
Jadelyn
and
were
income,
her, (2)
HSA
always living
Keana’s absence from the
neither of her
supported
household all
a mistake of
living
fact
two older
children
were
with her
disposition
10. The
question,
ICA's
of the claim of
11. We address Petitioner's second
re-
fact,
length
garding
issue discussed at
mistake of
first.
infra.
Hawaii Constitution
time,
report
5 and 14 of the
any
tions]
she did
mother
household,
jury
as to
require that the
be unanimous
but did not
leaving the
Kaelin
constituted the
which act or
incident
moving out until sometime
report Keana
erime[:]
believed Keana would
later because she
in few weeks.
return to her home
case, ...
acts
multiple
In a
acts
several
alleged
any
one of them could
are
view,
expla-
of these
Respondent’s
“[n]one
charged.
In these
constitute the crime
any
[Pe-
mistake made
nations related to
cases,
jury
must be unanimous as to
titioner,]”
represent a “denial that
simply
but
act or incident constituted
custody status of
misrepresented the
jury unanimity in
crime. To ensure
ehildren[,]”
decep-
form of
or “another
[her]
cases,
require
we
that ei-
multiple acts
tion[.]”
particular
crimi-
ther the State elect
income,
report
Petitioner’s failure to
As to
rely
upon
nal act
which it will
for convic-
“explanations”
Respondent argues that her
tion,
or that the trial court instruct
“mistakes,”
any
As to
but “excuses.”
are
agree
must
[sic] that all
them
may have
potential “mistake” Petitioner
underlying
act
the same
criminal
income,
report
Respondent
failing
made
proved beyond
has been
a reasonable
significance
the relation-
urges that
“[t]he
doubt.
eligibility
person’s income to
ship between a
(Quoting
Shinyama, 101 Hawai'i
State v.
lost on [Petitioner]
not have been
should
(2003).) According
application
welfare as-
her own
for
because
Petitioner,
ease,
unanimity in-
“[i]n
rejected ...
her
at first
due to
sistance was
[Respondent]
because
struction
limit.”
exceeding
eligibility
income
liability
argued
criminal
based on multi-
warn-
Respondent
points
also
out
“the
“[wjithout
therefore,
acts[,]” and,
a una-
ple
ings
applications
[Petitioner]
in the
instruction,
impossible to know
nimity
it is
eligible for
signed
completed
to become
whether the
was unanimous as to
stating that the
very explicit[,]”
welfare were
Peti-
conduct that constituted the crime.”
changes
your
recipient
“report any
must
present-
tioner asserts that the evidence was
family
days of the
within 10
household
that “if the
disbelieved
ed at trial such
including
change[,]”
you
time
learn of the
allegations, the
[Respondent’s]
one of
even
lump
payment[,]” and “re-
“receipt of a
sum
vary.”
calculation would
[total]
amount
money
Re-
ceipt ... of
from
source.”
Petitioner,
According to
“a combination
essentially argues that none of the
spondent
allegation
allegations or even a sole
various
presented supports a conclusion
evidence
would have been sufficient to sustain
acting
a “mistaken
Petitioner was
under
conviction[,]”inasmuch as “it was
neces-
[not]
thus,
belief,”
did not com-
“[t]he [court]
allegations true
sary for the
to find all
give a
plain
refusing
mistake-
mit
error
exceeded
in order to find that
the value
facts.”
instruction under such
of-fact
*8
$20,000.” Thus,
argues
“it
Petitioner
impossible to determine whether
VI.
unanimous on conduct[.]”
A.
unanimity
Petitioner concedes that
instruc-
Respondent
where
tions are not
argues
question,
first
Petitioner
As to the
However,
relies on one course of conduct.
necessary
unanimity instruction was
that “a
problem here
Petitioner maintains that “the
[Respondent] adduced evidence of
because
elect to submit
[Respondent]
is that
did not
multiple
one or more than one com
acts and
it had to find that all of
to the
constitute the
of those acts could
bination
deception
evi-
acts of
of which
adduced
Jones,
(Citing
v.
charged crime.”
State
in
convict.”
at trial occurred
order to
dence
(2001).)
Hawai'i
points out that
Petitioner
B.
cases, the defendant’s
“multiple act”
[i]n
contrary that
Respondent argues to the
unanimous
to a
constitutional
I,
correctly
“the
refused
guaranteed
[sec-
[court]
under [a]rticle
verdict
unanimity
a
up
instruction where the instant
a
[sic] with
final total which will be the
continuing
According
offense is a
offense.”
determination of what kind of theft occurred
Respondent,
in this ease[.]”
distinguishes
consisting
[w]hat
conduct
of
VII.
separate acts from a continuous course of
(1)
conduct is whether the conduct involved
A.
within the
a continuous
falls
definition of
The defense of mistake of fact
is codified
(2)
offense,
whether
702-218, which,
§
supm, pro-
HRS
as stated
alleged,
evidence,
argued
adduced
vides, in
part,
relevant
the accused’s conduct was a continuous
offense,
any prosecution
[i]n
for an
it is a
presentation
course
conduct in the
its
engaged
defense that
the accused
in the
case.
prohibited
ignorance
conduct under
or mis-
Hironaka,
(Citing
State v.
99 Hawai'i
take of fact if:
(2002).)
(Emphases
ignorance
negatives
or mistake
added.)
state of mind
to establish an
requirement,
As to the first
Respondent
element of the offense[.]
maintains that “the instant offense was a
The Commentary
pro-
§
on HRS
702-218
offense[,J”
continuing
because
under State
vides that
Martin,
(1980),
62 Haw.
B. determining separate As court in State v. Loc- whether a mis- stated fact in addi- quiao, take of instruction Legislature provide Although Commentary Although indicates that the did not available, law, might defense of of law” "mistake the State based on mistake of Supplemental Commentary § on HRS 702- recognized Supreme Court has in some in- only 218 clarifies that mistake of law available stances, exist, necessary as a corol- there must very prescribed in limited circumstances not offenses, lary to the to certain a de- definition that section: type based on this mistake. See State fense v. Legislature dealing § The 702-218 450, 476-477, Marley, 54 Haw. deleted a defense based on mistake of law. (1973). 1111-1112 The court cited Legislature "thereby said that it was avoid- pro- § 702-220 of the Hawaii Penal Code as ing major respect dilemma with to enforce- prosecu- viding trespass a defense to a state provisions ment of of this Code. The de- in the case of honest and reasonable be- tion ignorance fenses of of the law afforded ("no a belief lief matter how incorrect such §§ able, have been avail- 702-218 and would be”) (American treaty might law) that another law degree, any given under set of cir- trespass. afforded a defense to the have constitut- cumstances and as such would added.) (Emphasis major ed a encumbrance to enforcement of spirit of Code.” See Confer- substance and *10 (1972). Report ence Committee No. to the circuit court’s instruction as to the cable to the case and the tion the that facts of offense, requisite jury proper guidance state of mind for the in has its consider- Thus, legislative considered the intent of court ation of the issues before it. 702-218, review, explaining §HRS that must the we ascertain whether court, jury given by instructions the circuit legislature premised Hawai'i the en- [t]he whole, are when read considered as a proposi- § of actment HRS 702-218 on the insufficient, erroneous, prejudicially that, incon- person “if ignorant tion a is or mis- sistent, misleading. or Erroneous instruc- fact, person’s taken as a matter of the presumptively are tions are will, or ignorance appropriate mistake harmful ground prosecu- a reversal unless the circumstances, prevent person the from for showing tion its burden having requisite culpability with re- of satisfies the erroneous instructions were harmless actually spect to the fact as it exists.” See beyond (1993). a reasonable doubt. Commentary § to HRS 702-218 legislature Consequently, the intended Id. at 58 P.3d (emphases at 1252-53 consider, separate apart a added) marks, brackets, quotation (ellipsis, from elements, the substantive whether omitted). defen- and citations negate dant’s mistaken should belief Although, unlike the defendant in Loc- requisite cidpability charged for of- quiao, specifi- Petitioner this case did not case, being That insofar as fense. cally request a mistake of fact instruction at ignorance statutory or mistake of fact is a trial,13 beyond the “harmless a reasonable Hawai'i, that, ... defense we now hold ap- Locquiao doubt” standard set forth in where a has adduced evidence defendant Nichols, plies. See State 111 Hawai'i supporting on the at trial an instruction “that, (holding statutory ignorance mistake or defense of of the case erroneous instruc- must, fact, the trial court at the of defen- tions, plain [the error] standard of review request, separately dant’s instruct as to merged effectively with the of [Hawai'i Rules defense, notwithstanding trial 52(a) Procedure] Penal Rule harmless error regarding has also instructed court duty review because it standard of is the requisite charged state of mind of- properly the trial court instruct believe otherwise fense. We that to hold and, thus, jury[,]” “once instructional error is 702-218(1) nugatory. § render HRS would vacate, demonstrated, regard we will without added) (emphases Id. at P.3d at 1255 made, timely objection if to whether was omitted). (ellipsis possibility there is er- a reasonable conviction, Locquiao, Under a defendant is entitled ror contributed the defendant’s separate ie., mistake of fact when instruction that the erroneous instruction evidence, doubt”). presents matter beyond the defendant “no not harmless a reasonable weak,” under Thus, that he or she acted how Peti- we must determine whether negated evidence, fact mistake of an element presented tioner “no matter weak,” the offense: supported how that would have de- jury’s of a mistake of fact consideration consistently has held that a This court so, (2) and, fail- fense whether the court’s is entitled to an instruction defendant ure to on mistake of fact was harm- instruct having every of defense beyond less a reasonable doubt. evidence, any support provided in the such would the consideration evidence jury, that 'issue no matter how C. inconclusive,
weak, unsatisfactory the 1. Moreover, may be. the trial evidence it is essentially duty argument in- judge’s to insure that Petitioner’s mistakenly cogently explain appli- “if believed that [she] structions the law liberally encompass request did a claim of instruc- construed Petitioner fact, tion, subspecies is a mistake mistake of fact. therefore, and, argues request should be that that *11 any material fact. changes,” then she she was mistaken about report to did not need Instead, disputed the any impres- either knowingly [Petitioner] create false did not following alleged by [Respondent] conceded presents the as Petitioner sions. facts explana- in her trial presented alleged provided but an examples of evidence facts testimony supported why a mis- that could tion she did not believe she was as required report only of fact defense: The “mis- take them. claimed, was that she trial, [Petitioner] take” claimed During [Petitioner] report required to Cardenas, did not believe she was during in a letter to both undisputed Howev- certain of the events. living testimonyU that the twins were her er, concerning re- what was period. time mistake during the relevant with her law, reported quired to be was a mistake Similarly, denied that Kaelin [Petitioner] at not a mistake living with her mother or Keana were offact. also con- anytime mother] [sic]. [Her (emphases *4 Stenger, 2008 WL provided this fact. [Petitioner] firmed added). However, in the course of “dis- out of her timely that Kaelin moved notice conceding] al- puting] the facts explained that she did and also household providing] explanation leged facts but she report Keana had moved because not why she did not believe she was to her that Keana would return believed them[,]” presented report Petitioner evi- in a “few weeks.” household supported dence that could have the conclu- income, respect unreported With mistakenly believed that she sion that both testified and Cardenas [Petitioner] information, provided fact all of the reported wilting had [Petitioner] mistake, and which would have been a factual working.” [Petitioner] that she “started any statutory law. not a mistake as not attach her DOE explained that she did presented, Based on the evidence Petition- working pay because she was stubs to believe provided er some basis for Similarly, testified regularly. [Petitioner] reporting that she was mistaken as to the not work at the HSA as was that she did i.e., the re- requirements, that she believed reported the busi- and that she “seasonal” provided receive porting she was sufficient to Finally, did not [Petitioner] to DHS. ness assistance, that Petitioner was and/or $5,000 report cheek that was dated to certain factual matters re- mistaken as April a written re- but submitted garding personal which caused her situation May be removed quest in 2003 that she i.e., not in misreport, her to that Keana had public from assistance. permanently. her home fact moved out of Although Respondent contends that Petition- case, the evidence adduced at [ ] In this explanations represent mis- er’s do not multiple trial instanc- substantiated “excuses,” fact, merely that is take of but are es, reported her household [Petitioner] credibility jury. for the issue changes to Cardenas. also [Petitioner] regarding [Respon- provided explanations reporting, fail- of later accusations dent’s] Hence, it cannot be concluded contradictory report changes, and ure to the court’s failure to instruct on the testimony. witness beyond a mistake of fact was harmless foregoing, argues Petitioner on the Based Merely the court reasonable doubt. because juror could have conclud- reasonable “[a] requisite provided an instruction as to the .report- that she ed that believed [Petitioner] degree in the first state of mind for theft all changes and disclosed ed her household in deception not render the failure to does mandated.” material information as fact harmless. Under struct on mistake of contention, rejected here, ICA Petitioner’s presented there is a reason the facts stating that possibility jury, provided able that the instruction, could separate mistake of fact do not a mis- claims
[Petitioner’s] she com pre- have found that Petitioner believed The evidence take-of-faet defense. and, requirements plied reporting with the did not show that by [Petitioner] sented *12 thus, Thus, 708-831(1)(b) not knowingly § did deceive DHS. The HRS version of however, gravely concluding claim-of-right defense, the ICA erred in that is broader § than the MPC version. HRS 708- Petitioner was not entitled to an instruction 834.(1)(b) require does not that the on the mistake of fact defense. defen- right 'prompted dant’s claim his or her of conduct, provides but to a defense theft VIII. “[bjelieved charge [he that defendant or property she] entitled to the or A. right.” services under a claim [Peti- of The defense of right a claim of is set forth theory of tioner’s] defense was that she did 708-834, which, § above, in HRS as set forth not by decep- obtain the welfare benefits part states relevant that is a “[i]t defense honestly tion because she believed she had prosecution to for theft that the defen- complied reporting requirements. with the [bjelieved .... ] the defendant dant disputed [Petitioner] either the information property was entitled to the or services un- [Respondent] alleged she dishonestly con- right[.]” der a claim of The ICA “eon- cealed or contended that she did not be- clude[d] that the circuit court erred refus- lieve report or know she was to ing to instruct the on the elaim-of-right such information. In of her de- pursuant 708-834(l)(b)[,]” § defense to HRS fense, [Petitioner] introduced evidence that “ because Petitioner ‘believed that [she] was she changes had alerted the DHS her property entitled to the or services under a situations, employment child care and ” right.’ claim Stenger, of 2008 WL [Respon- she contended contradicted 708-834(l)(b)) (brack- (quoting § at *3 HRS allegations deceptive dent’s] of conceal- omitted). ets That conclusion was based on ment. We conclude that ad- [Petitioner] § the ICA’s belief that “[t]he HRS 708- duced sufficient evidence to warrant an 834(l)(b) elaim-of-right version of the defense claim-of-right instruction on her defense. ... is broader than the [Model Penal Code respect, Id. allWith due the ICA’s discussion (MPC) connection, version.” ] Id. wording variation in between HRS explained ICA § 708-834 and the MPC does not recount a [ujnlike 708-834(l)(b), § HRS the [MPC] material difference. Both statutes manifest- version of claim-of-right re- defense ly refer to the defendant’s state of mind at quires a link between the con- defendant’s “acted,” i.e., the time he or she “obtained]” duct and right. his or her claim of control property “exert[ed] over” the provides MPC is an “[i]t affirmative 708-830(2). Hence, § issue. See HRS both defense for theft that require versions “link between defen- [a ... actor: under an acted honest claim of right alleged dant’s] claim of unlaw- [the] right to property or services involved eonduct[,]” ful otherwise the defense could right or that he acquire [or she] had a negate “obtaining] not the state of mind of dispose of it as he [or she] did[.]” property by deception.” ... See id. The 223.1(3)(b) (1980) § (emphasis [MPC] add- deception inextricably state of mind of ed). not [Petitioner] does contend that she obtaining property linked to the action of (failed accurately acted disclose material and, accordingly, so must be defense information) right because of a claim of capable negating state of mind. Instead, welfare benefits. she asserts that Hence, “[b]ecause the ICA’s conclusion that did not she disclose the information that there was no link between [Petitioner’s] [Respondent] alleges deceptively con- alleged right claim and her con- unlawful cealed because she did not duct, believe or know [Petitioner] would not have claim-of- report she was such informa- Stenger, under the MPC[J” defense tion. added), Because there was no link between 2008 WL at *3 'right claim and her applies [Petitioner’s] § al- under HRS 708-834 as well. The conduct, leged would [Petitioner] ICA’s conclusion that Petitioner should have unlawful claim-of-right not have a under claim-of-right had the benefit of a defense then, premise. the MPC. was based on an incorrect changes reported household [Petitioner] B. However, the statute to her caseworker.” First, assuming, arguendo, a claim entitlement, requires only but a belief case, necessary in right instruction is so entitled “under a that the defendant was already subsumed within the mistake of *13 right.” If a mere belief of claim of Id. Commentary The on HRS fact defense. enough, right” of entitlement was “claim right recognizes § that the claim of 708-834 nullity. language would be rendered “probably unnecessary” when a defense is Hence, phrase right” “claim of must car given: mistake of fact instruction is ry meaning “entitle[ment].” distinct from § Both the allowed under 708- defenses County Coupe Hawai‘i v. C & J See of 831.(1) light probably unnecessary are of 352, 362, 198 Family P’ship, Ltd. 119 Hawai'i reading of the substantive def- an informed (holding that “an inter of the various modes of theft. The initions rejected pretation statute must be if it of a (a) (b) existence of either condition part statutory language a any renders of the culpability actor of the would reheve the (brackets, marks, nullity” quotation and cita ... a required to establish the offense: omitted)). tion right, assuming that it amounts claim of oumer, the true to a that the actor is belief 1. only indicate that the actor did would right” of defined in The term “claim is not state, requisite not have the mental Dictionary states the statute. Black’s Law would constitute a mistake of fact defense plea, right that a claim of criminal “[a] summary § and re- under 702-218. The usu[ally] charge, by a defendant to a theft principally this subsection statement of asserting property that the taken under was purposes clarity emphasis. mistaken) (but belief that honest added.) Thus, Commentary (Emphases superior right proper- had a to the defendant right particular confirms that claim of is a (8th Dictionary ty." Black’s Law type logically fact that be of mistake of would ed.2004) added). case, (emphasis In this Pe- encompassed general under a mistake of fact titioner not exhibited belief that her has instruction, right instruction. A claim of “right” money to the received somehow then, only given where the circum- should “superior” Respondent’s merely to that of purposes require stances of the case it “for changes.” “reported because she household clarity emphasis.” Those circum- Id. stances are defined the established mean- 2. Commentary ing right, of claim of law, § HRS and ease all which § Commentary on HRS 708-834 given should be indicate that the instruction right ... to a states that “a claim of amounts only expresses a belief in when the defendant owner[.]” the actor is the true belief (Emphasis ownership rights specific added.) identifiable true re The “true owner” property. quirement ownership of the connotes attempt property precede must the actor’s
C.
property.
“deprive” another of that
Petition
Second, although
“theory
attempting
Petitioner’s
er does not claim that she was
property
did not
the welfare
“recover” or “reclaim”
over
[ ]
she
obtain
“ownership” rights,
by deception
honestly
because she
she had
benefits
Petitioner',
reporting
and the case law.
complied
believed she had
with the
statute
hand,
her
Stenger,
repeatedly
the other
claimed that
requirements!,]”
2008 WL
*3,
on the evidence that
general
[she]
warrants a
mistake of fact
belief was “based
instruction,
changes
manifestly,
reported
she did not exercise
household
to her casework
may provide evidence of a
right." HRS
er.” Such action
such a belief “under a claim of
added).
fact, i.e.,
§
that Petitioner believed
(emphasis
708-834
Petitioner ar mistake
compliance
reporting
‘she was
she was in
gued at trial
that she “believed
But,
requirements.
it is not evidence that
to the benefits that she obtained and
entitled
over,’
any pre-existing
Petitioner acted based on
exerted control
based on the evidence
ownership rights
added).
belief that
(emphases
she had
in the
Id. at 755
That court
Instead, receipt
recognized
benefits she received.
further
“that
intent
to steal is
benefits was a direct result
person
of what was
absent when a
wrongfully
retakes
Thus,
reported by Petitioner.
specific personal property
Petitioner was
held
to which he
(citation
aware that benefits
right
possession.”
were conditioned on what
has the
Id.
DHS,
omitted)
reported
added).
ease,
contradistinction
In this
Pe-
”
ownership
to a belief in “true
that existed
titioner has failed to show that the welfare
prior
deprivation.
to the act of
benefits
“specific property.”
she claims were
4.
defense, then,
A
claim of
must
*14
Brighter,
In State v.
62 Haw.
608
(1)
encompass
pre-existing
some form of
(1980)
855,
curiam),
(per
P.2d
859
this court
(2)
ownership
possession
specific prop
of
set forth
specific
that the claim must be to
Here,
erty.
Petitioner has not made
property, stating that
claim that she received the
in
benefits
defense, however,
“[i]t is vital to the
that
wrongfully
effort to
specific
“retake[]
held
the interest which the accused asserts un
personal
id.,
propertyt,]”
Respondent.
from
der
right
specific
a claim of
must be to
defy
It would
reason to attribute to Petition
]708—834(l)(b);
property, HRS [§
State v.
Respondent
er a belief that
“wrongfully held”
Martin,
Or.App.
[15
mentary HRS 708-834.
2.
E.
seeming
Petitioner’s
of
Under
formulation
defense,
foregoing,
right
gravely
of
defen
the
the ICA
the claim
once the
Based on
deprived
proper
“concluding]
that
ad-
dant
another of certain
erred in
Petitioner
has
Rosen,
(citations
recap-
(ellipsis
original)
[sought] the
in
"the defendant
it.” Id. at 729
omitted).
money
game[.]”
by
illegal
lost
him at an
tion of
court further held
"in resist-
That
Supreme
at 728. The California
Court’s
robbery by showing
ing
charge
the
of
a
the
largely
in that case
on the
decision
was based
recaption money
the
at an
intention was
lost
of
through
activity
the
which the defendant
fact that
upon
illegal game, it is not incumbent
the defen-
thus,
money
illegal
was
“the intent
lost the
money
prove
the
that the
reclaimed was
dant
case,
lacking in
law
to steal is
such a
for the
him,”
money
ac-
won from
but
identical
"the
right
possession
recognizes
in
no title or
the
good
in
own
cused must intend
retake his
"
faith
and,
winner],]
illegality
the enter-
due to the
Thus,
added).
property."
(emphases
al-
Id.
gains
property
prise,
winner
no title to the
"the
though
proving
was relieved from
the defendant
thereof;
any right
possession
nor
at stake
money
actually
the
he
recovered was
participants
standing in a
have no
court
that the
lost,
currency
right
he
the claim of
same
added).
equity.”
(emphasis
Id.
of law or
good
that he believe in
faith
nonetheless
that “where the winner
no valid
is
obtains
"retakfing!
property." Id.
his own
that he was
...,
right
money
possession
won
title or
added).
taking
cannot have a felonious intent
the loser
right
to a
in-
constitutional
to warrant an
dueed sufficient evidence
defendant’s
claim-of-right' defense.”
violated unless one
on her
unanimous verdict is
struction
Thus,
at
de-
Stenger,
following
*3.
or
WL
occurs:
or both of
rejecting
previous order
spite
case-in-ehief,
this court’s
before the close of its
right,
of claim of
a
certiorari on the issue
specific
to elect
appropriate
not
claim of
instruction is
relying to
upon which it is
establish
act
record,
given.
not be
on this
and should
charged
“conduct” element
of-
gives
court
fense; or
the trial
IX.
instruction,
i.e.,
unanimity
an
specific
a
that all
instruction that advises
question,
to Petitioner’s first
respect
With
agree
must
that the
twelve
its members
Arceo,
right of
that the
“h[e]ld
this court
underlying criminal act has been
same
in crimi-
to a unanimous verdict
a
an accused
beyond
proved
in court
a reasonable doubt.
prosecution, tried before a
nal
I,
state,
guaranteed by article
sec-
of this
(emphases
Id. at
acts” the crime and the prosecution argues accordingly, the case specific unanimity unnecessary. instruction is foregoing, Based on the the ICA did c. gravely concluding err in on the case, by deception facts of this theft consti here,
Relevant
specifically
the Arceo court
tutes a
Although
continuous offense.
noted that “theft
property by decep-
of state
Martin,
exactly
facts are not
the same as in
tion,
708-830(2)
§
in violation of HRS
as,
ease,
inasmuch
in that
the court based its
(1993)[,]”
offenses,
among other
is an exam-
part
conclusion in
on the fact that the defen
ple
aof continuous offense. 84 Hawai'i at
*18
identical,” id.,
dant’s “statements were
Martin,
(citing
first received? been money going into ac- pattern th[e HSA] [Vallejo]: Yes. times, count, may at some but at it be small is, key Q. then what kinds of further significant, point is And others it’s but the things you look at in order to determine reported never do that that was information added); overpayments? there were (emphases whether it should have been[]” A. I would have to look at what was reported
not and [DHS] see she was Q. Now, ... in terms of the calcula- entitled to the provided benefits that we made, overpayments you tions of did monthly her on a basis. you up overpayments total amount Now, Q. Okay. in terms of the kinds of category? for each things you disqualify- discovered were Yes, A I did. factors, ing say. let’s Q. you give jury, And could that to the Basically, A. we looked at her house- please. composition, hold reported what was reported. assistance, We looked at income that A. For the' financial reported 7,350. reported. overpayment and not And re- For the food 5,598. sources that report. stamps, she failed to it’s And for the medical $10,086 $23,034. grand with a total So we look at everything, household—I everything looked at when I did the over- added.) (Emphases Thus, Respondent did payment. I composi- look at household separately not consider for each month tion, income, earned resources. whether Petitioner would have eligible been report,
based on each item she failed to or on Q. actions, So then the each of Petitioner’s thing you next individual but only performed have to look at would be the kind of in- calculations based on a come that combination of reported individual would have all of the received unre- items, during ported a month? or on all of Petitioner’s actions combined. A. Yes. Q. And in terms of [Petitioner’s] situa- Contrary assertion, then, to Petitioner’s
tion, things you what kinds of did find? way juror there was no that “one cold [sic] she, income, A I have found that one set of found that acts occurred that with her [Respondent] being led to report. deprived that she failed to Some more months is $20,000, than eligible. juror while another eligible. Some months is not could have So found that give I set of acts example say can occurred of—let’s in her different deprivation property that led to the applied ease valued July 2nd. And she $20,000[,]” (emphasis at more than reported people origi- two in her household. nal), thus, unanimity there was no issue. people The standard for three is $712. reported However, She support. the child
there report that she failed to $200 from X. So her [HSA]. income of exceeded the $774 standard; therefore, whatever she re- A. ceived July, for the month of she was Although Respondent presented its case totally ineligible. And I that' [sic] followed regard Degree to Theft the First steps August, September, when I did the (Theft I) offense, as a continuous and there- up May, October 2003. And it’s the gravely fore the ICA did not err in conclud- thing stamps. same with the food ing rejecting that the court was Q. Okay. So the kind of income that requested unanimity instruction as to that you judging against were things were like count, we must conclude that the court money how much receiving that she was gravely failing unanimity erred in business, [HSA], from her I from instruction as to the lesser included offense [DOE], guess employment from (Theft II), Degree of Theft in the Second Right, A. plus whatever the child jury. which instructed the weeks, support. For the first two she was receiving reported. child that she given by An instruction on Theft II was anything reported, plus agreement parties. So that she gave unre- The court *20 income, ported Supplemental were all considered on the Instruction No. which out- amount that’s available to her. lined the lesser included offense of Theft II $300, they came back with of under threshold amount. property for theft of excess If verdict, § II then it would be in HRS 708-831.19 a Theft jurors [Arceo] violation some of if of object Respondent did not to this instruc- say jurors, like felt like—if half felt Thus, it it can be assumed that was tion.20 obtained [Petitioner] benefits for first agreed there was a rational basis that year, like but the other half of half felt II The evidence for the Theft instruction. obtained the second she half of way jury could benefits only that the conclude year. supported a the evidence adduced conviction I, charge, Theft II but not Theft on the added.) (Emphasis As indicated quantum by rejecting some of the would be counsel, if a verdict were return presented by Respondent. evidence II, by rejecting Theft virtue of some quantum presented by the evidence Re- connection, of argued In that defense counsel instruction, unanimity spondent, absent a it during settling of instructions that impossible “series of would be to know which required with re- an Arceo instruction was charge. resulted in the Theft II acts” charge: spect to the Theft II issue that I have that I feel a The second concluding that an Arceo instruc strongly is the [Arceo ] lot more about unnecessary, stated it tion was the court [cjourt’s position I is that issue. know that the case law was believed basically this constitutes a continuous finding pretty much consistent with the normally And in these course of conduct. charged Theft I case as that the cases, especially type of theft welfare [sic] II, is a well as the lesser Theft change don’t cases where circumstances going offense, that the is [c]ourt included say period to month for a from month continuing to allow the to consider [c]ourt year, agree I with that. But in this would offenses that involve from the evidence a basically [Respondent] case has introduced continuing course of conduct. ways disqualify [Peti- several different long [Respondent] argues And as as benefits; from the welfare and be- tioner] conduct, I continuing course them as they given any given month are cause in okay are is [Arceo] think we as as far her, very ways disqualify possible concerned, and so those are the reasons jurors obtained bene- could find rejecting for the in- [c]ourt’s [Petitioner’s] illegally in one month and in one Jits grounds. the [Arceo ] struction on month she did not. added.) they (Emphases my And main concern is should court’s statement talking that it have overlooked the fact come back—because we’re about evinces Respondent “argue[d as II] is a little bit over the never Theft an amount Supplemental No. 2 1. That the Defendant obtained and exerted 19. The Court’s Instruction property of Ha- control over the of the State stated: waii; and only you if If and find the defendant not by deception; did 2. That the Defendant so guilty of Theft in the First De- of the offense 3. That the Defendant did so with intent gree, you reach a unanimous are unable to deprive property; of Hawaii of the the State offense, you verdict then must deter- $300; guilty property or not value exceeded mine whether the defendant That the guilty included of Theft in the offense value of 5. That the Defendant believed that the Degree. Second property $300. exceeded person A commits the offense Theft added.) (Emphasis Degree Second if she obtains or exerts control another, property over die the value of argument July Respon- 20. At oral $300, deception which exceeds with intent objection dent indicated that it made no deprive property. the other of that Respondent Theft II instruction because court’s There are five material elements to the of- strong believed it had a case for Theft I. Howev- Degree, er, fense of Theft in the Second each of object Respondent II failed to to a Theft prove beyond instruction, which the must now a Theft II it cannot contend given reasonable doubt. or was instruction should not superfluous. been These five elements are: *21 conduct,” but, continuing instead, (1993), a course of Degree and Theft in the Fourth (Theft IV) saying (1993). asserted that “what we’re here § is that under HRS 708-833 $20,000, it was over and we know that a witness, set of calculations that the last [Val- calculated[,]” lejo], added), (emphasis Commentary on Hawai'i theft stat- engaged pattern that Petitioner in a of con- utes, (1993), §§ HRS 708-830 to 708-833 es- $23,- “grand duct that resulted in a total of varying degrees tablishes of theft based on ” added). Thus, the second 03UJ property the value of the or service. Hironaka, requirement prose- from that “the The Code is in accord with the [MFC] and argue[ cution requisite ] that the conduct ele- other recent in grading revisions the theft ment is satisfied the defendant’s continu- according offenses to the mode of the conduct,” ous course of 99 Hawai'i at theft, involved, object and the value of (citations omitted), P.3d at 816 was not satis- property gra- or services stolen. The fied as to the Theft II offense. dation is based on the theft foregoing, Based on the if the evidence is person, firearm, from the or of a or of presented remand, in a upon similar manner property relatively high or services val- unanimity instruction necessary will be presents greater ue social harm and that charge, Theft II in order to ensure may require the actor in such great- cases that, in the event that a Theft II verdict is Moreover, er rehabilitation efforts. returned, jury agrees unanimously upon ordinary person, insofar as value of the underlying resulting conduct in the Theft property concerned, or services is “feels a conviction, II thereby fulfilling purpose “the repugnance taking lesser small amounts instruction[,]” unanimity of an Arceo which large than amounts.” any ambiguity “is to eliminate might (Footnote omitted.) (Emphases and citation jury’s infect the respecting deliberations added.) This court has stated that trial particular conduct in defendant is juries courts “must instruct toas includ of engaging allegedly accused and that con- ed offenses when ‘there is a rational basis charged stitutes offense.” State v. acquitting the evidence for a verdict the de
Kassebeer, 118 Hawai'i charged convicting fendant of the offense (2008) (citation omitted).21 the defendant of the included offense[.]” Haanio, 405, 413, 16 State v. 94 Hawai'i B. 701-109(5) (citing § HRS (1993)). Additionally, undisputed if it is that Peti- But,
tioner was entitled to an instruction on provided Theft while the court instruc- II, reason dictates that Petitioner was also tions the lesser included offense of Theft II, entitled to instructions the lesser it refused instructions on lesser in- (the included offenses of Theft in the Third De- cluded offenses of Theft III “Court’s (Theft III) gree 3”)22 § under HRS Supplemental 708-832 Instruction No. foregoing, 21. Based on the Supplemental it should be noted 22. The "Court's Instruction No. 3,” although by deception objection by theft has been de- which was refused over Petition- er, contexts, fined as a continuous offense in other states: satisfy requirements where it does not for a only you If find the defendant not continuous offense that have been set forth in guilty of the offense of Theft in the De- First regarding specific unanimity our case law in- gree, you are unable to reach a unanimous structions, the offense will not be offense, considered you verdict as to that find the Thus, continuous. Martin does not stand for the guilty Defendant not of the offense of Theft proposition by deception always that theft Degree, you the Second are unable to reach offense, only offense, continuous but that it be under a unanimous verdict as to that then circumstances, presented certain such as those you must determine whether the defendant is However, regard herein with to Theft I. when the guilty guilty or not included offense of i.e., dangers implicated, of Arceo are Degree. when uncer- Theft in the Third tainty specific exists over which person acts of the defen- A commits the offense of Theft in the offense, given specific Degree dant unanimi- Third if she obtains or exerts control another, ty necessary. property instruction is over the the value of *22 (the of the court to also instruct on Supplemental “Court’s Instruc- refusal Theft IV 4”)23 Petitioner, degree third and fourth de- objections over the offenses of tion No. gree theft: instructions, During the settlement of Judge, guess goes I to the instruction objected Jury Instruc- Petitioner’s counsel to talk I think that we were about about. modified, added the tion No. 8.04 as there is a scintilla of evidence that the jury’s of Theft II to the consider- offense could come back in an amount between modified, 8.04, No. as ation. Instruction certainly, possibly and and even $100 $300 states: likely, I less than of an amount is but $100 may bring following in You one of III think a scintilla exists both /or Theft verdicts: and IV guilty; 1. or Not added.) (Emphases Petitioner’s counsel Guilty charged; 2. or objection made the same to the court’s refus- Guilty Theft 3. of the included offense of supplemental al of the court’s instructions 2. refusing nos. 3 and noted above. In must be unanimous. Your verdict [cjourt instruction, stated, the court “The reached and After a verdict has been does not think there’s a rational basis your foreperson signed has and dated the of the included evidence to convict lesser form, bailiff, notify you will and verdict explain But the court did not offenses[.]” reconvened to receive the court will be why it determined there was a rational basis verdict. giving degree a second theft instruction However, objection degree Petitioner’s counsel’s was but not theft the third and fourth theft, degree of but instructions.24 not to the essence second $100, by deception person with intent A commits the offense of Thefl in the which exceeds property. Degree deprive if the other of that Fourth she obtains or exerts control another, property any There are five material elements to the of- over the of of value not $100, Degree, by deception fense of in the Third each of excess of with intent to Theft beyond deprive prove property. which the must the other of that There are material elements to the reasonable doubt. five offense Degree, five are: in the Fourth each of which the These elements of Theft prosecution prove beyond exerted 1. That the Defendant obtained and must a reasonable property over the of the State of Ha- doubt. control waii; five are: and These elements by deception; 2. That the Defendant did so and 1. That the Defendant obtained and exerted property did control over the of of Ha- 3. That the Defendant so with intent the State waii; deprive property; the State of Hawaii of the and by deception; 2. That the Defendant did and and so $100; property 4. That the value exceeded 3. That the Defendant did so with intent to the. of deprive property; the State of Hawaii of the Defendant believed that the value of 5. That the property property any $100. exceeded 4. That the value not in of $100; added.) (Emphases excess of proper- 5. That the Defendant believed that the Supplemental ty $100. No. was of value not in excess of 23. The “Court’s Instruction 4," added.) objection by (Emphases over which was also refused Petitioner, states: 24. The court also refused Petitioner’s Amended only you If and find the defendant not Requested Jury Instruction No. which states in guilty the offense of Theft in the First De- part: gree, you are reach a unanimous or unable to offense, you you find the In find verdict as to that order for Defendant ANGELA you guilty guilty any degree, of the offense of Theft in STENGER Defendant Theft Degree, you unanimously are unable reach answer at one of the the Second must least offense, you following "yes" response questions verdict as to that with a a unanimous guilty special interrogatory form which will be find the Defendant not of the offense Degree, you provided you: in the Third are unable to Theft offense, you unanimously beyond Did find a reason- reach a unanimous verdict as to that you must determine whether the able doubt that Defendant ANGELA STEN- then defendant guilty guilty GER obtained and exerted control over the or not the included offense of Degree. property by deception the State of Hawaii in the Fourth Theft mony. weighing the effect of inconsis- discrepancies, they tencies or whether oc- jurors they The court instructed the testimony cur within one witness’s or as judges were the exclusive of the “effect and witnesses, between different consider “credibility value of the evidence” and *23 they whether concern impor- matters of witnesses”: only unimportant tance or matters of de- you While must all consider of the evi- tail, they and whether result from innocent case, in determining dence the facts falsehood.[25] error or deliberate you this does not mean that are bound to every weight. bit evidence the same added.) (Emphases of judges You are the sole and exclusive of The jury may court’s instructions that the the and value the evidence and effect of of reject part in effect or all of a witness’s credibility the the witnesses. of testimony jury or other evidence allowed the added.) (Emphasis The court also instructed extent, independently determine to what if jury credibility weight the on the and of any, deception employed had by been Peti- testimony: and, thus, only tioner countenanced not your It is exclusive to determine theft, second-degree instruction as to but whether and to ivhat extent a witness also third-degree instructions on and fourth- should give weight be believed and to degree jury theft. Because the was the ex- testimony accordingly. his or her In eval- judge clusive of the “value of evidence” and uating weight credibility the of a wit- witnesses,” “credibility of it had the ultimate testimony, you may ness’s consider the discretion to decide “to what extent a witness demeanor; appearance witness’s should be believed” and whether “to discred- witness’s manner testifying; the wit- Hence, testimony. jury it” could deter- intelligence; ness’s the witness’s candor or mine, based on its evaluation of the wit- frankness, thereof; or lack the witness’s evidence, testimony varying nesses’ interest, case; any, if in the result of this $20,000 amounts of less than had been ob- relation, any, the witness’s if party; to a by deception. tained bias, temper, feeling, witness’s or if shown; any has been the witness’s means jury Because the court instructed the information; opportunity acquiring reject testimony it could witness probability improbability or of the wit- except parts you “which nevertheless be- testimony; ness’s the extent to which the true,” jury lieve to be could find Petition- supported witness is or contradicted only er committed theft of not than less evidence; other the extent to which the $20,000, $100, but less than or than less $300 contradictory witness has made state- making the offenses of Theft III or Theft IV ments, times; whether trial or at other applicable. only logic This is the that can be surrounding and all other circumstances applied giving second-degree of the bearing upon the witness and or his her theft instruction. If the deter- could credibility. mine that Petitioner obtained less than $20,000 $300, by deception than discrepancies
Inconsistencies or but more free, evidence, witness, testimony on the same to determine between the witnesses, testimony alternatively even may or less was obtained of different you, deception. not cause to discredit such testi- deprive additionally and with the intent to Hawaii of the State court instructed the property during any of the fol- "you deliberately find that a witness has testi- lowing months: falsely any important deliberately fied fact or added.) (Emphasis requested jury This instruc- fact, exaggerated suppressed any important July May tion listed each month from 2003, 2002 to you may reject testimony then of that witness spaces with for the to "indicate the except parts you for those nevertheless you unanimously agree amounts which Defen- believe to be true.” during dant obtained control over this month” in benefits, benefits, stamp financial food and/or medical benefits. Respectfully, court’s refusal XI.
provide instructions on the lesser included judg- foregoing, Based on the the ICA’s of Theft III and Theft IV was incon offenses part, judgment ment is vacated in the court’s giving of an instruction on sistent with the vacated, and the case remanded for a new as, evidence, II inasmuch on the same Theft opinion. trial consistent with this evidence was credi the extent to which such KIM, Concurring Opinion by Judge Circuit jury’s discretion ble was within exclusive circumstances, J. light to determine. Respondent, as tried instructions on majority I concur in both the III
the lesser included offenses of Theft analysis supporting holdings and the them on given.26 Theft should have been IV separately I all issues this case. write
only
briefly
Nakaya-
to comment
on Justice
ma’s belief that “this court should hold that
required
instruct the
the trial court is not
jurisdic
in
It is established
every
regard
jury
sponte
sua
as to
defense
“juries
obligated
tion that
are
to render true
weak,’
less of ‘how
and that such failure is
hence,
presented;
verdicts based on the facts
warranting appel
not an ‘instructional error’
barring their consideration of lesser included
late review under
[State v.] Nichols[
supported by the evidence under
offenses
Hawai'i
].”
P.3d 974
Dissent
delegated
sig
their
mines
function.... Most
at-,
by
ing op. Nakayama, J.
226 P.3d at
nificantly,
nothing approach impairs
an all or
majority
475-76.
I do not
that the
believe
seeking
judicial
the truth
function of the
opinion
proposition implicit
stands for the
in
Haanio,
415,16
system.”
at
Hawai'i
foregoing
I
the
statement.
do not believe
(citation omitted).
As was said in
at
necessarily
majority
that it
the
follows from
Haanio:
that,
law,
opinion
as a matter of
a trial court
required
is hereafter
to instruct the
sua
judicial objectives
The
the context
within
sponte
every
sug
as to
conceivable defense
justice system
of the criminal
are to assess
by
gested
given
the evidence in a
case.
liability
appro-
criminal
to determine
priate punishment
all,
that,
if and when warranted.
I
First of
would contend
for all
Acceding
nothing” strategy,
to an “all or
purposes,
reasonable
the defense
intents
circumstances,
albeit in limited
forecloses
essentially request
in the instant case did
liability
the determination of criminal
jury instruction on the mistake of fact de-
Thus,
may
elevating
in
where it
fact exist.
mistakenly requested
fense when it
one on
approach
a “winner take all”
such a
right.
by
over
claim of
As is made clear
the
is,
fact,
determination is detrimental to the broad- majority,
right
the
defense
claim
by
justice
er
the
completely
interests served
criminal
subsumed
the
within
mistake
defense,
system.
being “logically encompassed”
fact
is, therefore,
by
unsurprising
the latter.
It
414,16
Id. at
P.3d at 255.
specific arguments proffered by
that the
the
light
nothing strategy”
request
In
of the “all or
of defense at trial in
of its
Respondent,
actually
an omission of relevant
lesser
more
the claim of
defense
were
generic
contrary
appropriate
included offense instructions is
to a
for the more
effect,
proposition
that the
must seek the mistake of fact defense.
the de-
requires
theory right,
specific
truth. This critical
function
fense had the
but
court,
fully
wrong,
its members
informed on the
instruction
and the trial
while
be
Therefore,
latter,
correctly
mistakenly
by
recognizing
law as instructed
the court.
former;
thus,
providing
recognize
instructions on all lesser included
failed to
resulting
subsequent
in-
offenses with a rational basis in the evidence
confusion and the
case,
performance
jury’s
error in
further com-
is essential to the
structional
by
Ap-
pounded
function.
the Intermediate Court of
supra regard-
specific unanimity
applied
26. Based on the rationale set forth
instruction
II,
ing
necessary
Theft III and Theft IV.
Theft
it would also be
that the
lesser included offenses of
(ICA)
peals’
analysis
erroneous
holding jury’s
consideration of a mistake of fact de-
fense,”
on the issue.
majority op.
226 P.3d at
majority op.
the affirmative. See
at 281-
specter
raised
Nakayama’s
Justice
so,
Having
P.3d at 451-53.
done
dissent of trial
being respon-
courts hereafter
majority—observing that Petitioner did not
sible as a matter
combing through
of law for
specifically request a mistake of fact instruc-
body
the entire
every
evidence
search of
tion—proceeds to examine “whether
possible
is,
theory
my
fit
court's
to instruct
... was harmless
view,
failure
specific
not warranted
holding of
beyond a
reasonable doubt.” Id.
ease,
majority
in this
based as it is on the
added).
It then concludes that
the court’s
ease,
specific
where,
especially
facts of this
failure to instruct was not harmless.
Id.
here,
very
at issue formed the
Thus,
together,
when considered
it does—in
case,
heart of the defense
rather than some
my
view—“necessarily
[ ]”
follow
based
nebulous, barely glimpsed theory on the mar-
discussion,
majority’s
on the
“a trial court is
gins.
The errors
both the trial court and
hereafter
to instruct
sua
the ICA
present
at issue in the
ease were
sponte
every
as to
sug-
conceivable defense
correction,
substantial and
and the
gested by the
given
evidence in a
case.”
majority has done so.
*25
296,
Concurring op. at
Dissenting Opinion by C.J. approach upon my different which concur- rence the dissent’s ultimate result agree I Nakayama’s with Justice dissent based. that a trial court duty does not have a to sua sponte particular instruct the on a de- dissent, In Nakayama propos- her Justice fense “when there is evidence—however es the rule that instruction “[a]n as a supports
weak—that
the
consideration
defense is not
if the defendant or
issue,”
301,
dissenting op.
at
226 P.3d at
reasons,
prosecution,
strategic
do not re-
471,
majority’s opinion
implies.
the
See
(em-
303,
quest it.” Id. at
ic”
on the trial court to
incon
such a defense and the defense is not
*26
sponte
possible
instruct the
sua
as to all
theory
the
of the
sistent with
defendant’s
may
implicated
defense instructions that
be
(internal
omitted).
quotations
ease.”
Id.
facts,
believe,
below,
by
I
as discussed
the
that,
“[its]
The court concluded
because
re
appropriate,
that it would be
under certain
of the record shows no
evi
view
substantial
circumstances,
impose
duty
a
on the trial
trigger
sponte obligation
dence to
a sua
sponte
as to defenses.
court to sua
instruct
instruction,”
jury]
[a mistake of fact
the
Barton,
186,
People
In
v.
12 Cal.4th
47
obliged
trial court was not
to so instruct.
569,
531,
(1995),
Cal.Rptr.2d
P.2d
the
906
536
Id.;
Villanueva,
People v.
Cal.
see also
169
Supreme
compared
Court of California
a trial
(2008)
49,
Cal.Rptr.3d
App.4th
86
534
duty
regard
to instruct the
with
court’s
(applying the rule that
trial court
“[a]
duty,
versus its
to lesser included offenses
sponte
any
to instruct sua
on
de
any,
particular
on
defenses.
In so
instruct
fense,
self-defense,
including
only when there
doing,
rejected
the court
the defendant’s re-
supporting
is substantial evidence
the de
quest
an instruction as to a lesser in-
fense,
relying
and the defendant is either
on
treated the same as an
cluded offense be
the defense or the defense is not inconsistent
defenses, id.,
particular
hold-
instruction on
case.”);
theory
the defendant’s
the
ing that:
People Montoya,
7 Cal.4th
31 Cal.
must,
sponte,
on
trial court
sua
its
[A]
(1994)
(“It
Rptr.2d
915
initiative,
the
on lesser
own
instruct
that,
request,
settled
even
the absence of a
“when the evidence rais-
included offenses
general princi
trial
a
court must instruct on
question
es
as to whether all of the
closely
ples
commonly
of law that are
and
charged
pres-
elements of the
offense were
openly connected to the facts before the
ent,
there is no evidence that
but not when
necessary
jury’s
that are
for the
court and
offense was
less
than
case.”) (citations
understanding of the
omit
charged.
ted);
Burnham,
Cal.App.3d
People v.
176
offenses,
(1986)
1134, 1139-40,
Cal.Rptr.
222
In
to lesser included
contrast
instruct,
duty
sponte,
(recognizing court’s
sua
a defendant must demon
trial
initiative,
particular
supporting
strate substantial evidence
a de
or on its oion
require
fense in order to
the trial court
upon
called
implement
to create or
defense
defense)
sponte
issue a sua
instruction on
strategy—a
burden that should be left to
(citation omitted).
State,
defense counsel. See Shells v.
(Fla.Dist.
1994).
So.2d
App.
Ct.
view,
my
In
by
the rule set forth
California
Rather,
properly delegates
the rule
courts that a trial
duty
court has a
to sua
trial court the role of selecting
present
sponte
instruct the
potential,
defenses
ing those
implicated by
defense instructions
(1)
appeal’s
when
that 'the defendant relies
supportive
substantial evidence and
legal
of a
on such defense or
there is substantial
theory that is not inconsistent with the de
evidence to
a defense and such de-
legal
Thus,
theory
fendant’s
case.
fense is not inconsistent with the defendant’s
“incentives for a defendant not to
theory
[hereinafter,
of the ease
the Barton
instruction,”
about which Justice Na-
appropriate
rule] is the more
apply
rule to
kayama
concern,
expressed
dissenting op.
see
the instant case and in future cases. As
at
First,
approach, requiring
sponte
sua
instructions
the Barton rule would eliminate
defenses,
for all
no matter how weak the
the undue burden on the trial court of re
evidence,
unduly
would
burden the trial court
viewing
body
“the entire
of evidence and
arguably
increase the likelihood of error.
considering every
appli
defense that
token,
By the same
Nakayama’s ap-
Justice
facts,”
cable to the
dissenting op. at
proach, requiring
giving
particular
of a
at
potential
prejudice
jury only
instruction to
requested,
when
Barton,
to the defendant.
See
47 Cal.
ignores
important policy
it is the
Rptr.2d
(stating
P.2d at 536
“to
duty
iriaZ court’s
to maintain
fairness
require trial courts to ferret out all defenses
and,
such,
courtroom
it must ensure that a
might possibly
be shown
the evi
defendant receives a fair trial.
dence, even when inconsistent with the de
trial,
only place
fendant’s
would not
*27
hold,
foregoing,
Based on the
I would
con-
an undue burden on the trial courts but
trary
duty imposed
to the
by
broad
the ma-
potential
would also create a
prejudice
to jority
duty
and the
imposed by
narrow
Jus-
the defendant” and “[a]ppellate insistence
dissent,
Nakayama’s
tice
that the trial court
upon
sponte
sua
instructions which are incon
duty
sponte
ahas
limited
to sua
instruct the
theory
sistent with defense trial
or not clear
(1)
jury
particular
only
on a
defense
it
ly
demanded
hamper
evidence would
appears
relying
that the defendant is
on such
attorneys
put
judges
trial
under
(2)
defense,
if there is substantial evi-
pressure
glean legal
to
theories and winnow
supportive
dence
of such a defense and the
remotely
the evidence for
sophis
tenable and
defense is not inconsistent with the defen-
instructions”)
(internal
tical
citations and
Nevertheless,
dant’s
of the ease.
I
omitted);
quotations
Wade,
People v.
53
that,
agree
Nakayama
with Justice
“even if
322, 1
683,
116,
Cal.Rptr.
Cal.2d
348 P.2d
125
duty
jury
trial courts have a
to instruct the
(1959) (“Omniscience
is not
of our
sponte
supported by
sua
on defenses
‘sub-
”
courts.”),
grounds
trial
overruled on
in
other
evidence,’
309,
dissenting op.
stantial
at
226
312,
People Carpenter,
v.
15 Cal.4th
63 Cal.
6,
P.3d at 479 n.
the trial court’s failure to
(1997).
Rptr.2d
935 P.2d
747
insti’uct in this case was harmless.
Id. at
Second,
adoption
Indeed,
I believe the
of the Bar
300
er-
trial
as to a defense constitutes instructional
ultimate conclusion that “the
ma’s
Instead,
view,
my
in
court should
sponte on the
ror.
court’s
to instruct sua
failure
right
hold that
to the mistake of fact
of fact defense was harmless because
mistake
only
the defendant
reasonably possible that the issu-
instruction
accrues
it was not
after
prosecution requests the defense instruc-
separate
fact instruction
ance of a
mistake of
tion,
promote judicial efficiency,
supported
finding
Stenger
order to
could have
as take into consideration the duties
knowingly deceive DHS.” Id. at
as well
did not
and defense counsel.
P.3d at 482.
226
Stenger requested that the trial court in-
NAKAYAMA,J.,
Dissenting Opinion
jury
struct the
as to the claim of
de-
MOON, C.J., joins
part.
fense,
apparently decided
but she
respectfully
majority’s
I
dissent from
a mistake of
fact
instruction.1
(1)
gravely
holdings that:
the ICA
erred Nevertheless,
appeal
argues
the trial court should have sua
because
plain
court committed
error
the trial
sponte
jury
on the mistake of
instructed
failing to
a mistake of fact instruction
defense;
(2)
failure
fact
the trial court’s
sponte.
sua
separately
instruct the
on the mistake
Preliminarily,
recognize
I
this court
not harmless.
of fact defense was
repeatedly
that the trial court has
has
stated
duty
jury properly:
instruct
Required
The Trial Court
Not
To
A.
Was
Jury
Sponte
Instruct
Sua
On the
duty
judge
is the
the circuit
to see to
[it]
Of Fact Defense.
Mistake
goes
it
the ease
to the
in a clear
manner,
intelligent
they may
so that
gravely
majority
holds that the ICA
understanding
clear and correct
erred because the trial court should have sua
decide,
they
and he [or
what
are
sponte instructed the
on the mistake
fully
appli-
shall state to them
the law
she]
Although
clearly
fact defense.
this court has
Feliciano,
v.
cable
facts. State
duty
the trial
has the
stated
court
637, 643,
Haw.
jury,”
“properly instruct
this court has
367,]
(quoting People Henry, [395
Mich.
whether,
rule,
not resolved
under this
(1975))
N.W.2d
sponte
trial court must sua
instruct
added). And
inaccurate or in-
faced with
as to a defense instruction.
State v.
Cf.
instructions,
complete
trial court
“[the]
Pinero,
75 Haw.
305 n.
859 P.2d
to,
counsel,
duty
has a
with the aid of
1369, 1380
(noting
n. 13
in resolv
instruction or
either correct the defective
error,
ing
point
the court need not
incorporate it
own
to otherwise
into its
determine whether “a trial court is
Riveira,
instruction.”
State v.
59 Haw.
instructions,
provide
self-defense
sua
(empha-
sponte,
supported
whenever
the evi
omitted)....
sis added and citations
*28
dence”), disapproved
grounds by
on other
words,
responsibility
other
the ultimate
State,
219,
79
900 P.2d
Raines v.
Hawai'i
jury ...
properly
[lies]
to instruct the
with
(1995).
1286
the circuit court and not with trial counsel.
recognize
I
Although
that a trial court has
387, 395,
duty
jury properly
Kupau,
v.
76 Hawai'i
879 P.2d
to instruct
State
492,
(1994),
grounds
appellate
courts
vacate once in-
500
overruled on other
that
demonstrated,
Haanio,
405, 407,
by
these rules
State v.
94 Hawai'i
16
structional error is
246,
logically
provide
(quoting
248
Briones v.
cannot
be construed to
P.3d
472-73,
966,
State,
442,
P.2d
sponte
trial court’s failure to instruct sua
74 Haw.
848
980
Stenger
requested
majority opinion,
had
the mistake of fact in-
1. As stated in the
the "Petition-
supported
struction,
presented
Locquiao,
er
evidence that could
under State v.
100 Hawai'i
mistakenly
believed that
the conclusion
she in fact
tion,
195, 205,
1242,
(2002),
trial
58 P.3d
1252
provided
required
all of the
informa-
required
court would have been
to instruct the
mistake,
a factual
which would have been
jury
Majority opinion
to
at
this defense. See
any statutory
and not a mistake as to
law.”
482-83,
301
(1993) (Levinson, J., concurring) (emphasis in
spect to the
threatening charges.
terroristic
(some
omitted,
original))
ellipses
146-47,157
citations
(Nakamura,
Id. at
P.3d at 585-86
Gomes,
13,
original); State v.
93 Hawai'i
21-
J., concurring
dissenting).
failing
After
(2000) (citations
22,
314,
995 P.2d
322-23
a self-defense instruction at trial
omitted);
Kassebeer,
State v.
118 Hawai'i
respect
threatening
to the terroristic
493, 511,
(2008) (citation
193 P.3d
427
charges,
appeal
he asserted that the tidal
omitted);
Murray,
State
116 Hawai'i
court
failing
give
erred
a self-defense
(2007) (citation
n.
169 P.3d
966 n.
instruction because “the
presented
evidence
omitted).
fairly
at trial also
raised the issue of self-
duty
Because of the trial court’s
to instruct
(inter
defense.” Id. at
case would
defense[,]”
(1989);
place trial
v.
present his or her
778 P.2d
State
O’Daniel,
518, 527-28,
position
having
to
courts in the difficult
62 Haw.
(1980)
apply,
unargued
whether
defenses
trial
(ruling
determine
1390-91
that “[t]he
potential
manipulation.”
refusing
give
and “create the
court did not err in
to
the
.
148, 148-49,
death”)).
at
587-88.'
157 P.3d
requested
Id.
instruction on accidental
Finding
prosecution
re-
met
this
governing
on the ease law
defense
Based
requested
quirement when it
the self-defense
Judge
concur-
and
Nakamura’s
instructions
instruction,
proceeded
discuss
then
to
Auld,
opinion in
I must
ring
dissenting
and
the court
entitled to
whether
was
duty
that a trial court’s
to
also conclude
instruction without the consent of the defen-
jury properly
does not include
instruct
dant.
Id. at
303
198, 204,
(2002)
806,
Pinero,
(quoting
gested by
53 P.3d
812
legal
the
right
defendant’s
172, 178-79,
Maelega,
State v.
80 Hawai'i
907 to a defense instruction accrues when the
(internal
758,
(1995))
764-65
quotation
defendant, or for certain defenses the defen-
omitted)
added).
marks
In addi-
prosecution,
dant
supra, requests
see
the
tion, pursuant
duty
to the trial court’s
instruction. An instruction as to a defense is
jury properly,
required
instruct a
it is
required
if the
prosecution,
defendant or
jury] fully
“state to
applicable
[the
the law
reasons,
strategic
do not
it. See
Feliciano,
637,
the facts.” State v.
62 Haw.
Palladino,
People
491, 492,
v.
47 A.D.3d
849
643,
306,
(1980) (citation
618 P.2d
310
omit-
542,
(N.Y.App.Div.2008)(reject-
N.Y.S.2d
543
ted).
dispute
defense,
I do not
that a
such as
ing defendant’s claim that “the court should
fact,
(1)
(2)
mistake of
is a
may
law that
jury,
sponte,
instructed the
sua
on the
applicable
See,
presented.
to the
e.g.,
facts
justification
law of
property”
defense of
(“HRS”) §
Hawai'i Revised Statutes
702-218
because
unlawfully
“[s]ueh action would have
(1993) (providing that “it is a defense that the
interfered
strategy
with defense
since ‘a de-
engaged
accused
prohibited
in the
conduct
unquestionably
fendant
has the
to chart
ignorance
under
or mistake of fact if ...
...,
would,
his own
any
defense’
ignorance
negatives
[t]he
or mistake
the
event,
unsupported by
have been
a reason-
state
mind
to establish an ele-
evidence”) (internal
able view of the
citations
offense”);
ment of the
Locquiao,
State v.
100
omitted);
State,
388,
Schwindling v.
269 Ark.
195, 208,
1242,
(2002)
Hawai'i
58 P.3d
1255
(“Even
639,
602 S.W.2d
639
assuming
(holding that “where a defendant has ad-
arguendo that
the
sufficiently
defense was
duced evidence at trial supporting an instruc-
evidence,
tion
raised
statutory
on the
court is not re-
ignorance
defense of
fact,
must,
quired
mistake of
give
specific
when,
the trial court
at the
instruction
as
request, separately
defendant’s
here,
instruct as to
requested.”
none
(citing
Ark. Code
defense”). However,
whether the de-
State,
§Ann.
(Repl.1977)); Tyler
43-2134
v.
facts,”
actually
fense
“applicable
law is
(1979);
265 Ark.
581
328
S.W.2d
Roberts
contingent
requested
whether it is
be-
State,
and Charles v.
254 Ark.
491 S.W.2d
optional
cause
is an
instruction based on
(1973)).
both the
party’s
strategy.
facts and each
trial
I am also mindful that a trial court sua
supra.
See
These rules do not—and should
sponte
juries
any
must “instruct
as to
includ-
not,
infra,—burden
see
the trial court
having
ed offenses
a rational basis in the
automatically
jury
every
instruct the
as to
regard
possible
pros-
evidence without
to whether the
may
defense that
be inferred from
supported by
requests,
to,
the facts or
objects
a scant amount of
ecution
or the defense
“unsatisfactory”
Instead,
Haanio,
evidence.
sug-
such an instruction.”3 State v.
circumstances,
intent,
involving
jury
prosecution
both act and
bore
burden of
man,
any single
defense);
pure,
than
negativing
however
wise
defendant’s mistake-of-fact
effect,
Culkin,
eminent he
be....
[T]o
it full
State v.
97 Hawai'i
304 must, 246, sponte, or [A] 16 P.3d 248 trial court sua on its
Hawai'i
added).
initiative,
Haanio,
jury
own
instruct the
on lesser
In
this court
included offenses “when the evidence rais-
rejected
parties,
that
mat-
the view
the
as a
question
all
law,
es a
as to whether
of the
strategy or
ter of trial
constitutional
charged
pres-
elements of the
offense were
any right
forego
to
such an instruction
ent, but not when there is no evidence that
having
included offense
a
as to
rational
than
that
the
offense was
less
414-15,
basis in the evidence. Id. at
charged.”....
Nevertheless,
question
the
as to
at 255-56.
offenses,
In
to
included
contrast
lesser
whether a trial court must
instruct as to
instruct,
duty
sponte,
trial
sua
court’s
every defense, regardless of “how weak”
initiative,
particular
on its own
defenses
thereby
though
requested,
affect the
limited, arising “only
appears
more
if it
is
strategy,
from
defendant’s defense
is distinct
relying
the defendant
on such a
prevent
jury
the defendant can
the
whether
defense,
ifor
there is substantial evidence
considering
guilt
from
his or her
on included
supportive
and the
of such
de-
Auld,
149,
offenses. See
305
sponte
trial court must sua
issue a defense
the case.” Id. at
58 P.3d at
(citations omitted)
supported
instruction that is
“weak” evi-
(emphases
1253-54
add-
ed).
dence.
stated,
previously
jurisdiction,
As
in this
Finally,
rights
prej-
if the defendant’s
were
upon request, a defense instruction is re-
udiced
the trial counsel’s failure to create
quired
“any
evidence,”
if
it has
in the
(that
implement
strategy
or
a defense
includ-
“weak,
regardless
inconclusive,
of how
or un-
requesting
particular
ed
defense instruc-
See,
satisfactory
e.g.,
the evidence
be.”
tion),
remedy.
the defendant is not without
235, 251,
Mainaaupo,
State v.
117 Hawai'i
The
argue
post-
defendant is entitled to
in a
(holding
178 P.3d
17
“[h]owev-
proceeding,
conviction
that his or her trial
testimony may
er weak [defendants’]
counsel rendered ineffective
in
assistance
been,”
declining
the circuit court
in
erred
to
failing
request
a defense instruction. See
requested
defendants’
mistake of fact
442, 464,
Uyesugi,
State v.
100 Hawai'i
60
instructions).
I cannot conclude that the fail-
(2002) (reviewing
P.3d
865
a defendant’s
jury
every
ure to instruct a
toas
defense
provided
claim that his trial counsel
ineffec-
“weak,
supported by merely
that is
inconclu-
for,
tive assistance of
among
counsel
other
sive,
unsatisfactory”
or
evidence violates the
things, failing
request
an instruction on
“duty”
goes
court’s
to “see to it that the case
defining
“appreciate”);
law
Hawai'i Rules
jury
manner,
intelligent
in a clear and
(providing
Penal Procedure Rule 40
in
they may
so that
understanding
have a clear
part
petition alleg-
“[w]here
relevant
they
Kupau,
what it is
are to decide.”
76
es the ineffective assistance of counsel as a
(citations
Hawai'i at
whether, when read and considered as a
ineffective and said counsel shall have an
whole,
given
prejudicially
the instructions
are
heard[]”).4
opportunity to be
As further
insufficient, erroneous, inconsistent, or mis-
infra,
discussed
it is not the trial court’s
”
leading.’ Mainaaupo, 117 Hawai'i at
responsibility
implement
strategy
defense
Balanza,
(quoting
307
342, 424,
Cal.Rptr.2d
133
recognize every
hidden defense
available
(2003) (citations omitted) (some
Wade,
internal
the defense. See
at
Cal.2d
omitted);
quotation marks
Montoya,
see also
Cal.Rptr.
at
308
instruction,
179, 187, 118
grossly
unfair to the
P.3d
670
would
108 Hawai'i
State,
(quoting
v.
74 Haw.
462-
Briones
prosecution.
(emphases
976
addition,
increasing
the trial court’s
similarly
original)). Other courts have
held
duties as to defense instructions would re
strategic
pursue
choice to
one
that “counsel’s
ability
successfully
strict the defendant’s
[of defense]
line
to the exclusion of others is
Auld,
strategic
present his or her
defense.
rarely second-guessed
appeal.”
United
(Nakamu
148, 157
P.3d at 587
Hawai'i at
(7th
Balzano,
v.
916 F.2d
States
ra, J.,
dissenting) (“Forcing
concurring and
Cir.1990) (citations omitted, formatting al
instruction on a
an unwanted self-defense
tered,
added);
brackets
United States v.
take control of the defense
defendant would
(7th
Adamo,
Cir.1989);
882 F.2d
impair
away from the defendant and
States,
Quilling
F.Supp.2d
United
ability
present his or her de
defendant’s
(S.D.Ill.2002). Requiring
the trial court
fense.”).
The defense counsel
have val
every
sponte
sua
to instruct
unobvious)
strategic (though
reasons not
id
actively
defense will result
that court
sec
particular
defense instruction.
ond-guessing
strategies.
the defendant’s
Yet, if
were to hold that a trial
this court
Finally, demanding, that a trial court issue
sponte
every
court is
sua
issue
every
slight
defense instruction whenever
ev-
*35
by “any sup
defense instruction warranted
encourage
idence warrants it would
defense
evidence,”
port in the
these reasons would be
instructions,
request
defense
counsel not
trumped by the court’s unwarranted duties.
in order
to receive an automatic retrial.
Court,
Supreme
Appel
As the New York’s
Auld,
149,
marks sponte to issue should not be sum alleged tions or omissions to be error but merely sup- every defense instruction that is Accordingly, which had an obvious tactical basis for bene- ported “weak” evidence. fitting foregoing, will not be sub light the defendant’s case of the I cannot conclude that Guair, scrutiny.” prejudicial committed error ject to further State v. De the circuit court jury when failed to instruct on the record shows it to be entitled.” Id. Errone sponte. defense of mistake of fact sua ous presumptively “instructions are harmful ground and are a for reversal unless it affir Error, Any, Failing B. If To Instruct matively appears from the record as a whole Jury Sponte Sua On the Mistake prejudicial.” that the error was not State v. Of Fact Defense Was Harmless. Locquiao, 195, 203, 100 Hawai'i 58 P.3d (2002) (quoting Valentine, State v. assuming Even the circuit court was (2000)). Hawai'i 998 P.2d sponte to instruct the sua defense, respectful- mistake of fact I also case, error, In this any, trial court's if ly dissent from majority’s holding that was its failure to instruct on the the trial court's failure to the mistake of mistake of fact defense. This error harm- fact instruction was not harmless.6 The ma- less if there possibility is no reasonable jority holds that “it cannot be concluded that the court’s separately failure to instruct the the court’s failure to instruct on the defense jury on the mistake of fact defense contribut- of mistake of fact beyond was harmless claims, Stenger ed to the conviction. and the reasonable doubt” because “there is a rea- holds, majority that the trial court’s failure to possibility jury, sonable provided separately instruct the on the mistake of instruction, separate with a mistake of fact fact prejudiced instruction her because Sten- could have found that Petitioner believed ger “provided some basis for the complied that she reporting require- with the believe that she was mistaken as to the ments, thus, knowingly did not deceive i.e., reporting requirements, that she be- Majority opinion DHS.” at lieved the reporting provided was suffi- I respectfully 452-53. dissent from this assistance, and/or, (2) cient to receive part because, majority’s opinion, my Petitioner was mistaken as certain factual view, overwhelming there was evidence ne- regarding personal matters her situation *36 gating Stenger’s potential mistake of fact ie., which caused misreport, her to that Kea- Therefore, any defense. failing error in na had not fact moved out of her home give a mistake of fact instruction was harm- permanently.” Majority Opinion at 226 beyond less a reasonable doubt. respectfully P.3d at 452. I dissent from this part majority’s opinion of the I because do The standard for whether the failure to not believe possibly that a could give jury instruction is harmless is “wheth Stenger found that was mistaken as to the possibility er there is a reasonable that error reporting requirements or mistaken as to her might have contributed to conviction.” State Nichols, family situation for 327, 334, two reasons. v. 111 Hawai'i 141 P.3d Gonsalves, (quoting 981 State v. overwhelming 1. There is evidence that 289, 292-93, 119 108 Hawai'i P.3d 600-01 Stenger reporting require- knew the (2005)). evaluating In whether there ais ments. possibility reasonable that the error contrib conviction, uted to the the error overwhelming negat- “must be There was evidence light examined in the proceed ing Stenger’s defense, of the entire mistake of fact and ings given therefore, and the effect which the whole reasonably possible it is not that a reason, Burnham, (1974)); 6. For the People Cal.App.3d same even if trial have a courts 921 v. 176 duty sponte to instruct the sua on defenses Cal.Rptr. 1140 n. 222 635 n. 3 evidence,” supported by "substantial the circuit (1986) (holding produce defendant must duty triggered court's was not in this case. For supporting substantial evidence a defense before instance, required California courts have trial sponte a trial court is to issue a sua sponte courts to instruct the sua on a de view, defense). my instruction on the trial “only appears fense if it that the defendant is duty sponte courts do not have a to issue sua defense, relying on such a or if there is substan supra defense instructions. See 226 supportive tial evidence of such a defense and However, P.3d at 470-75. even trial courts the defense is not inconsistent with the defen sponte must instruct sua on defenses Barton, People dant's of the case." v. 12 evidence, supported by substantial the circuit 186, 195, 569, 573, Cal.Rptr.2d Cal.4th court, duty Stenger did not breach added) (citations because omitted) Sedeno, (quoting People did not adduce substantial evidence in of 10 Cal.3d 1, 9-10, Cal.Rptr. her mistake of fact defense. Stenger Stenger applied for Stenger thought viewed when jury would have found that her Stenger and told of correctly reported information to financial assistance she had instance, changes Finan- financial application obligation report for all her For DHS. Stamps that Sten- composition and Food Assistance within ten cial situation or household specifically DHS stated: ger submitted to days. testified: Cambra Now, interview, did Q. part as of the YOUR RESPONSIBILITIES: you go responsibilities over her CHANGES IN YOUR also REPORT ANY failing those penalties OR FAMILY WITHIN for to abide HOUSEHOLD LEARN OF THE TIME YOU responsibilities? DAYS OF only receiving you If are THE CHANGE. said, pages A. Yes.As I on the last two Stamps you are to sub- Food complete list- application itself Monthly Eligibility Report Form amit responsibilities repoii ing rights and (MERF), changes you report all must each changes. And we do review that with the MERF. line line and interview in detail almost for signature that their examples provides application The certifies confirm rights and they understood this is their Stenger report. Two changes that needed payments type of examples “lump responsibilities. sum” These are the are increase, “Receipt, penalties decrease or termi- changes report. These are the ap- money from source.” doing any- nation of giving false information or “Earnings” and “Inheritance” plication uses get the bene- thing dishonest order to Stenger needed examples of income that fits. Thus, Stenger application report. Q. you her right. All And did advise obligation to completed informed her of her report any changes either that she must changes in income. report all her composition or financial sit- her household Furthermore, Monthly Eligibility Re- days? ten uation within (“MERF”) Stenger filled port Forms A. Yes.... warnings. For in- similar out contained Following explanation of the Cambra’s stance, MERFs stated that: accepting finan- rights responsibilities IF ARE RECEIVING NOTE: YOU assistance, Stenger signed applica- her cial ASSISTANCE, YOU MUST FINANCIAL in- which certified that she had “been tion ALL WITHIN 10 REPORT CHANGES rights responsibilities by [her] formed *37 BE- THAT THE CHANGE DAYS [agreed] respon- to heed these [Cambra] TO COMES KNOWN YOU. sibilities.” pertinent ques- MERFs also ask three report Stenger she needed to all knew First, “any- the MERFs ask whether tions. family composi- changes in her income your receive[d] incomef.]” in household one days tion within ten to DHS because Second, has the MERFs ask whether there MERFs, her. applications, and Cambi’a told change your [sic] in households total “been a Thus, majority that it is although the holds (bank accounts, cheeking/savings ac- assets correctly possible Stenger thought that she )[.]” Finally, the MERFs ask counts DHS, over- reported her information in out of “anyone moved [has] whether supports whelming evidence the conclusion warned your The MERFs household^]” re- Stenger that knew she was truthful, “you not or if Stenger that if are port changes all in her income and household days report changes within 10 you do not forms, to do so. on her MERF and failed change, Depart- you the time learn money overpaid any ment can take back possibility no reasonable 2. There is you may taken to court.” Sten- you, and Stenger’s jury would have containing these ger ten MERFs submitted found overwhelming testimony negated the Thus, warnings. the MERFs also warned against her mistake evidence report all Stenger she needed to of fact and household. changes in her income defense. Stenger produced for her Cambra, The evidence eligibility
Additionally, Terri eompari- DHS, fact defense was weak that she inter- mistake of supervisor for testified
3H overwhelming negating However, son to the “regular.” evidence the income was not Stenger her essentially above, defense. makes four applications discussed arguments supporting her mistake of fact Stenger completed MERFs informed her of provided timely defense: that she notice obligation her report changes all in in- that Kaelin moved out of the house and come. further-required The MERFs Sten- thought Keana returning was in a ger Thus, “few pay to attach stubs. outside of her weeks[;]” (2) that she did not work at the testimony, Stenger’s there is no for (“HSA”) Hawai'i Surf Academy because it assertion that accept- she believed that it was “seasonal[;]” was that she failed to attach reporting able to omit income because it was (“DOE”) Department her of Education pay “regular.” not stubs to her MERFs because she was Stenger also asserts that report- she “had working regularly, and that she “did not ed to DHS working” started at the report cheek that was dated in $5000 (“Cardenas”), DOE writing Lyn Cardenas April but submitted a written worker, eligibility a DHS a letter on Febru- May 2003 that public she be removed from ary Stenger 2003. The letter wrote to assistance.” These contentions do not ne- Cardenas stated: gate overwhelming Stenger evidence that Cardenas, Mrs. proper reporting requirements knew the working I started get my and need to report properly failed to to obtain more ben- child care taken Jadelyn care of for + efits from DHS. Jolene, applications do I need 2 for child First, Stenger’s assertion thought that she care? call ... messaged] Please + leave Keana moving Stenger back with in a Stenger asserts that this letter shows she negate “few weeks” obligation does not her properly reported believed she her DOE in- report that information to within DHS ten However, come. Cardenas testified she days. Himphill, Himphill’s Luisa Eric moth- Stenger Stenger called told her that the er, Himphill testified that Erie obtained employment DOE was “on call” and the DOE physical custody January of Keana in yet had not called Additionally, her. Carde- and that Stenger she took Keana from on the nas testified: day. same Stenger report did not that Kea- Q. called, you But if she was would na had moved out of her household until she expected some sort of indication of submitted her May MERF on 2003. Out- MERFs, maybe one of the call testimony, side her own there is no evi- way? some other kind of dence in supporting Stenger’s the record ar- MERFs, A. Yes. And even on the gument that acceptable she believed it was you asked did receive income? And report not to Keana had moved out of her February the one dated that was dated for passed. home until three months had Rath- 3rd, March the she indicated no. And er, above, MERFs, applica- as discussed her then the March MERF that ivas dated tion, Cambra, and interview with told her *38 1st, Apyil top she also said no on it. report changes that she needed to all in her days. household to DHS within ten She Stenger Cardenas also testified that was Thus, failed to do this. I do not believe a pay to submit stubs with her separate mistake of fact instruction could Thus, reasonably possible MERFs. it is not possibly Stenger’s have affected conviction. Stenger that believed her one-sentence letter reporting requirement, satisfied her Second, Stenger’s assertion that she mis- attaching pay included stubs to her MERFs takenly thought accurately reported she her notifying any changes DHS of in income DOE income is unconvincing. also The State Therefore, days. within ten failure to Stenger stipulated that in- she received separately Stenger’s instruct the on mis- come from the April DOE on March take of fact defense did not contribute to her April May May 20 of 2003. None conviction. reported Stenger’s of this income was on Third, Stenger MERFs. Stenger signatory asserts that she did not was sole on report account, her income on her history MERFs because HSA’s bank and the account Stenger overwhelming that from evidence Stenger received income that
reflects
(when
requirements and
July
proper reporting
between
knew the
HSA business
her
assistance)
mistakenly
applied
testify
for financial
that she
Stenger
her failure
(when
requested
stop
longer
re-
receive
May
request
she
to no
believed that her
assistance). Majority Opinion
properly
re-
ceiving
tantamount
assistance was
Stenger
failing
testified
porting, any
Angela Stenger? No,
A. there was none. applications and also make MERFs Stenger report all
clear Stenger to DHS. failed
income she received
Thus,
reasonably possi-
this.
it is not
to do
April Appellant. public from May 2003 that she be removed view, my Stenger’s argument assistance.” No. 29170. is no reason- unpersuasive because there Supreme Court of Hawai'i. possibility that a could have con- able Stenger mistakenly her believed cluded March reporting require- complied
letter with the Stenger never testified that ments. reported her in-
thought properly her letter Furthermore, $5,000 from the check.
come *39 7, 2003, stating May filed a MERF on
she any income in the
that she had not received April her household’s total
month of and that Finally, despite changed. had
assets Stenger testimony that told
Cambra’s report changes in income to obligation
her
DHS, Stenger did not Cardenas testified $5,000 light
report any to DHS.