State v. Shaw ( 2020 )

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
15-MAY-2020
07:50 AM
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
STATE OF HAWAI#I,
Plaintiff-Appellee,
v.
SUSAN E. SHAW,
Defendant-Appellant
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CRIMINAL NO. 1CPC-XX-XXXXXXX)
MEMORANDUM OPINION
(By: Ginoza, Chief Judge, Chan and Wadsworth, JJ.)
Defendant-Appellant Susan E. Shaw (Shaw) appeals from
the Judgment of Conviction and Sentence (Judgment), entered on
July 11, 2018, in the Circuit Court of the First Circuit (circuit
court).1 Plaintiff-Appellee State of Hawai#i (State) charged
Shaw by indictment with one count of Computer Fraud in the Third
Degree (Computer Fraud 3), in violation of Hawaii Revised
Statutes (HRS) § 708-891.6 (2014),2 and one count of Fraudulent
1
The Honorable Fa'auuga L. To'oto'o presided.
2
HRS § 708-891.6 provides:
[§708-891.6] Computer fraud in the third degree. (1) A
person commits the offense of computer fraud in the third
degree if the person knowingly accesses a computer, computer
system, or computer network with the intent to commit the
offense of theft in the third or fourth degree.
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Use of a Credit Card (Credit Card Fraud), in violation of HRS
§ 708-8100(1)(c) (2014).3 The Judgment reflects that Shaw was
ultimately convicted of both counts as charged.
As explained below, we conclude that the plain language
of HRS § 708-8100(2) does not allow the offense of Credit Card
Fraud to be prosecuted as a class C felony based on an
aggregation of the values of multiple transactions involving more
than one credit card or credit card number. Shaw's conviction
for Credit Card Fraud in Count II must therefore be vacated and
(2) Computer fraud in the third degree is a class C
felony.
The offense of Theft in the Third Degree (Theft 3) is defined by HRS
§ 708-832 (Supp. 2016), which provides, in relevant part:
§708-832 Theft in the third degree. (1) A person
commits the offense of theft in the third degree if the person
commits theft:
(a) Of property or services the value of which exceeds
$250[.]
HRS § 708-830 (2014) provides, in relevant part: "A person commits
theft if the person . . . : (1) Obtains or exerts unauthorized control over
property. A person obtains or exerts unauthorized control over the property of
another with intent to deprive the other of the property."
3
HRS § 708-8100 provides, in relevant part:
§708-8100 Fraudulent use of a credit card. (1) A
person commits the offense of fraudulent use of a credit card,
if with intent to defraud the issuer, or another person or
organization providing money, goods, services, or anything
else of value, or any other person, the person:
. . .
(c) Uses or attempts or conspires to use a credit card
number without the consent of the cardholder for
the purpose of obtaining money, goods, services,
or anything else of value.
(2) Fraudulent use of a credit card is a class C felony
if the value of all money, goods, services, and other things
of value obtained or attempted to be obtained exceeds $300 in
any six-month period. For purposes of this section, each
separate use of a credit card that exceeds $300 constitutes a
separate offense.
(3) Fraudulent use of a credit card is a misdemeanor, if
the value of all money, goods, services, and other things of
value obtained or attempted to be obtained does not exceed
$300 in any six-month period.
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the circuit court erred in failing to dismiss Count II for lack
of sufficient evidence to establish probable cause. We further
conclude that, under the post-conviction liberal construction
standard, the Indictment sufficiently charged Shaw in Count I
with Computer Fraud 3 based on an aggregation of the values of
multiple transactions involving multiple credit cards, even
without expressly alleging that Shaw engaged in a scheme or
course of conduct. However, the circuit court erred in failing
to submit to the jury the factual question of whether the
evidence disclosed one general intent or separate and distinct
intents. Accordingly, this case must be remanded for a new trial
on Count I.
I. BACKGROUND
A. Charges
The charges arise from allegations that, over the
course of four months between January 16, 2017, through and
including May 18, 2017, Shaw falsely inflated the tip amounts of
105 customers' bills at Square Barrels, the restaurant where Shaw
worked as a server.4 Over the course of the four months, Shaw
was alleged to have falsely inflated tips totaling over $700.
On August 15, 2017, the State charged Shaw by
Indictment, as follows:
COUNT I: On or about January 16, 2017, through and
including May 18, 2017, in the City and County of Honolulu,
State of Hawaii, Susan E. Shaw, did knowingly access a
computer, computer system, or computer network with the
intent to commit the offense of theft in the third degree,
thereby committing the offense of Computer Fraud in the
Third Degree in violation of Section 708-891.6 of the Hawaii
Revised Statutes.
A person commits the offense of theft in the third
degree if she intentionally obtains and exerts unauthorized
control over property of another, the value of which exceeds
Two Hundred and Fifty Dollars ($250.00), with intent to
deprive the other of property valued in excess of Two
Hundred and Fifty Dollars ($250.00). Sections 708-832(1)(a)
and 708-830(1) of the Hawaii Revised Statutes. (HPD Report
Number 17189819-002). Count I relates to the access and use
4
The terms "server" and "waitress" are used interchangeably to
reflect their usage during the proceedings.
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of a computer, to wit a "point of sale computer terminal",
with intent [to] commit theft of money valued in excess of
$250.00, and the defendant did, in fact, so obtain money
valued in excess of $250.00.
COUNT II: On or about January 16, 2017, through and
including May 18, 2017, in the City and County of Honolulu,
State of Hawaii, Susan E. Shaw, with intent to defraud the
issuer, or another person or organization providing money,
services, or anything of value, or any other person, did use
credit card numbers without the consent of the cardholders
for [the] purpose of obtaining money, or anything else of
value, and the value of all money and other things of value
so obtained exceeded Three Hundred Dollars ($300.00) in any
six-month period, thereby committing the offense of
Fraudulent Use of Credit Card, in violation of Sections 708-
8100(1)(c) of the Hawaii Revised Statutes. (HPD Report
Number 17-189819-003). Count II relates to the use of
credit card numbers, without the cardholders' consent, for
the purpose of obtaining money valued in excess of $300.00
during the time period specified herein, a period of less
than six months, and the defendant did, in fact, so obtain
money valued in excess of $300.00.
B. Pre-Trial Motion to Dismiss
On November 3, 2017, Shaw filed "Defendant's Motion to
Dismiss with Prejudice" (Motion to Dismiss), arguing that the
State failed to adduce sufficient evidence to establish probable
cause for either of the two counts at the grand jury proceedings.
As to Count I, the Computer Fraud 3 charge, Shaw argued that the
State failed to adduce sufficient evidence: (1) that Shaw used a
computer to steal more than $250 from a single victim; (2) that
the device Shaw used to process the tips was a "computer," as
defined by HRS § 708-890 (2014); and (3) that Shaw lacked
authorization. As to Count II, the Credit Card Fraud charge,
Shaw argued that the State failed to adduce sufficient evidence:
(1) that Shaw used a single credit card number without the
cardholder's consent to defraud the bank that issued the card of
more than $300; and (2) establishing lack of consent from the
cardholders. Shaw also argued that the State failed to adduce
evidence that Shaw acted pursuant to a single scheme or course of
conduct. As the basis for these arguments, Shaw argued that
Computer Fraud 3 could only be prosecuted based on a single
victim of theft and Credit Card Fraud could only be prosecuted
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based on the use of a single credit card or credit card number
and a single credit card victim.
The circuit court held a hearing on November 22, 2017,
at which it orally denied the motion, finding that "there was
overwhelming evidence to support the indictment against the
defendant based on [witness testimony] and the exhibits presented
to the grand jury." The circuit court subsequently filed its
written Findings of Fact, Conclusions of Law, and Order Denying
Defendant's Motion to Dismiss with Prejudice on December 15,
2017.
C. Trial
At trial, the State called three witnesses: Anastasia
Bryant (Bryant)5, Chris Duque (Duque), and Thomas Ray (Ray).
Bryant testified that she was a customer at Square Barrels on
May 9, 2017. She identified Shaw as her server. After
discovering that the credit card she used to pay for her bill was
charged $10 more than the amount she had written on her copy of
the receipt, Bryant reported the discrepancy to Square Barrels
management. Duque was an investigator with the Honolulu
Prosecutor's office who testified as an expert in the areas of
computer forensics as well as computer identification and
examination. Duque testified about his examination of the
restaurant's computer system and network as part of the State's
investigation into this case. Ray was the co-owner of Square
Barrels. Ray testified about Shaw's employment and the nature of
the restaurant's operations. Ray also testified about the
internal audit he and his business partner conducted of every
employee's server accountability reports, spurred by Bryant's
report of the discrepancy with her transaction.
Shaw was the only witness for the defense.
The circuit court's instructions to the jury included,
inter alia, instructions on the elements of Computer Fraud 3 and
5
Bryant was formerly known as Anastasia Vidinha.
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Credit Card Fraud, and an instruction on the definition of an
"inference" and its use with regard to determining lack of
consent.
The jury found Shaw guilty as charged in both counts.
At the sentencing hearing, the State asserted that the two counts
merged and, as such, requested that the circuit court only
proceed in sentencing on the count for Computer Fraud 3 and take
no further action on the count for Credit Card Fraud. Defense
counsel agreed that the two counts merged. Despite both parties
conceding that the two counts merged, neither party requested a
dismissal of Count II, nor did the circuit court enter such an
order.
The circuit court entered its Judgment on July 11,
2018. The Judgment provided:
DEFENDANT IS CONVICTED AND FOUND GUILTY OF:
CT. 1: COMPUTER FRAUD IN THE THIRD DEGREE
CT. 2: FRAUDULENT USE OF CREDIT CARD
FINAL JUDGMENT AND SENTENCE OF THE COURT:
COUNT 1: IMPRISONMENT TERM OF FIVE (5) YEARS to run
concurrent with any other term now serving; Mittimus to
issue forthwith;
MONETARY ASSESSMENT OF $500.00 OR THE ACTUAL COST OF
THE DNA ANALYSIS, WHICHEVER IS LESS TO THE DNA
REGISTRY SPECIAL FUND;
PROVIDE BUCCAL SWAB SAMPLES AND PRINT IMPRESSIONS OF
EACH HAND, AND IF REQUIRED BY THE COLLECTING AGENCY'S
RULES OR INTERNAL REGULATIONS BLOOD SPECIMENS REQUIRED
FOR LAW ENFORCEMENT IDENTIFICATION ANALYSIS.
COUNT 2: STATE REQUESTED TO TAKE NO FURTHER ACTION;
GRANTED BY THE COURT.
II. POINTS OF ERROR
On appeal, Shaw raises six points of error: (1) the
Indictment was fatally defective for failing to allege that Shaw
acted pursuant to a scheme or continuing course of conduct; (2)
the circuit court erred in denying Shaw's Motion to Dismiss with
Prejudice; (3) the circuit court failed to properly instruct the
jury; (4) there was insufficient evidence to sustain Shaw's
convictions; (5) the circuit court erred in admitting unsworn
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hearsay evidence; and (6) the circuit court's evidentiary errors
individually and cumulatively violated Shaw's rights to due
process and a fair trial.
III. STANDARDS OF REVIEW
A. Sufficiency of the Indictment
"Whether a charge sets forth all the essential elements
of a charged offense . . . is a question of law, which we review
under the de novo, or right/wrong, standard." State v. Mita, 124
Hawai#i 385, 389, 245 P.3d 458, 462 (2010) (citation, internal
quotation marks, and brackets omitted).
B. Motion to Dismiss Indictment
We review de novo a circuit court's order denying a
motion to dismiss an indictment based on sufficiency of the
evidence to support the indictment. State v. Taylor, 126 Hawai#i
205, 215, 269 P.3d 740, 750 (2011).
In reviewing the sufficiency of the evidence to establish
probable cause before the grand jury, every legitimate
inference that may be drawn from the evidence must be drawn
in favor of the indictment and neither the trial court nor
the appellate court on review may substitute its judgment as
to the weight of the evidence for that of the Grand Jury.
The evidence to support an indictment need not be sufficient
to support a conviction.
Id. (quoting State v. Ganal, 81 Hawai#i 358, 367, 917 P.2d 370,
379 (1996)).
C. Jury Instructions
When jury instructions are at issue on appeal, the
standard of review is whether, when read and considered as a
whole, the instructions given are prejudicially insufficient,
erroneous, inconsistent, or misleading. State v. Metcalfe, 129
Hawai#i 206, 222, 297 P.3d 1062, 1078 (2013) (citation omitted).
"Erroneous instructions are presumptively harmful and are a
ground for reversal unless it affirmatively appears from the
record as a whole that the error was not prejudicial." Id.
(citation omitted); see also State v. Nichols, 111 Hawai#i 327,
337, 141 P.3d 974, 984 (2006) ("[O]nce instructional error is
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demonstrated, we will vacate, without regard to whether timely
objection was made, if there is a reasonable possibility that the
error contributed to the defendant's conviction[.]").
D. Sufficiency of Evidence
In reviewing the sufficiency of the evidence, we must
view the evidence in the light most favorable to the State.
State v. Ildefonso, 72 Haw. 573, 576, 827 P.2d 648, 651 (1992).
"The test on appeal is not whether guilt [was] established beyond
a reasonable doubt, but whether there was substantial evidence to
support the conclusion of the trier of fact." State v. Eastman,
81 Hawai#i 131, 135, 913 P.2d 57, 61 (1996). "'Substantial
evidence' . . . is credible evidence which is of sufficient
quality and probative value to enable a man of reasonable caution
to reach a conclusion." State v. Naeole, 62 Haw. 563, 565, 617
P.2d 820, 823 (1980).
E. Admissibility of Evidence
[D]ifferent standards of review must be applied to trial
court decisions regarding the admissibility of evidence,
depending on the requirements of the particular rule of
evidence at issue. When application of a particular
evidentiary rule can yield only one correct result, the
proper standard for appellate review is the right/wrong
standard. However, the traditional abuse of discretion
standard should be applied in the case of those rules of
evidence that require a "judgment call" on the part of the
trial court.
Kealoha v. Cty. of Hawaii, 74 Haw. 308, 319, 844 P.2d 670, 676
(1993).
IV. DISCUSSION
A. Sufficiency of the Indictment
Shaw argues that, where the Computer Fraud 3 and Credit
Card Fraud charges were based on an aggregation of multiple
transactions pursuant to HRS § 708-801(6),6 the State was
required to allege in the Indictment that Shaw intentionally
6
HRS § 708-801(6) (2014) provides, in relevant part: "Amounts
involved in thefts committed pursuant to one scheme or course of conduct, whether
the property taken be of one person or several persons, may be aggregated in
determining the class or grade of the offense." (Emphasis added.)
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engaged in a scheme or criminal course of conduct to commit theft
and credit card fraud. Shaw contends that a scheme or course of
conduct was an essential fact or required element of the charges
and its inclusion in the Indictment was required to provide Shaw
with adequate notice and to fully inform Shaw of the nature and
cause of the charges brought against her. Thus, Shaw argues that
the failure to allege a scheme or course of conduct caused the
Indictment to be fatally defective. Shaw argues that the State's
aggregation of 105 separate credit card transactions and failure
to allege a scheme or course of conduct violated her right to due
process, as it relieved the State of its burden to call 105
witnesses and deprived Shaw of her right to confront the 105
witnesses.
Shaw concedes that she challenges the sufficiency of
the Indictment for the first time on appeal. As such, we apply
the Motta7/Wells8 post-conviction liberal construction rule:
Under the Motta/Wells post-conviction liberal construction
rule, we liberally construe charges challenged for the first
time on appeal. Under this approach, there is a presumption
of validity for charges challenged subsequent to a
conviction. In those circumstances, this court will not
reverse a conviction based upon a defective indictment or
complaint unless the defendant can show prejudice or that
the indictment or complaint cannot within reason be
construed to charge a crime.
State v. Wheeler, 121 Hawai#i 383, 399-400, 219 P.3d 1170, 1186-
87 (2009) (citations, internal quotation marks, and brackets
omitted).
1. Count I (Computer Fraud 3) was legally sufficient under
the Motta/Wells Rule.
We first look at whether Count I can be reasonably
construed to charge the offense of Computer Fraud 3. "A
complaint, for example, cannot reasonably be construed to charge
an offense if it omits an element of the offense or when the
7
State v. Motta, 66 Haw. 89, 657 P.2d 1019 (1983).
8
State v. Wells, 78 Hawai#i 373, 894 P.2d 70 (1995).
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common definition of an element of an offense set forth in the
charge does not comport with its statutory definition." State v.
Baker, No. SCWC-XX-XXXXXXX, 2020 WL 1228443, at *7 (Haw. Mar. 13,
2020) (citing State v. Pacquing, 139 Hawai#i 302, 308, 389 P.3d
897, 903 (2016), and Wheeler, 121 Hawai#i at 394, 219 P.3d at
1181). The supreme court has recognized that "one 'way in which
an otherwise deficient count can be reasonably construed to
charge a crime is by examination of the charge as a whole.'"
State v. Tominiko, 126 Hawai#i 68, 76, 266 P.3d 1122, 1130 (2011)
(quoting State v. Elliott, 77 Hawai#i 309, 312, 884 P.2d 372, 375
(1994)). "Under the liberal construction standard, two counts
can be read together." Id.
For Count I, the charge tracked the language of the
statute for Computer Fraud 3, HRS § 708-891.6. The charge also
included the statutory language for the underlying predicate
offense of Theft 3 from HRS § 708-832. Thus, on the basis that
all elements of the charge as defined by the respective statutes
are alleged in the Indictment, the charge for Computer Fraud 3 is
not defective. See State v. Treat, 67 Haw. 119, 120, 680 P.2d
250, 251 (1984) (holding that a theft in the first degree charge
was not defective where it tracked the statutory definition of
the offense because the charge alleged all of the statutory
elements of the offense).
Shaw challenges the State's reliance on HRS § 708-
801(6) to aggregate multiple instances of theft in charging Shaw
with Computer Fraud 3 and argues that even if the State's
reliance on HRS § 708-801(6) was proper, the State was required
to expressly allege that Shaw acted pursuant to a scheme or
course of conduct.
In State v. Yokota, 143 Hawai#i 200, 205-06, 426 P.3d
424, 429-30 (2018), the Hawai#i Supreme Court held that theft can
be charged as a continuing course of conduct and that the alleged
instances of theft can be aggregated under HRS § 708-801(6). In
that case, the circuit court dismissed the counts charging Yokota
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with Theft in the Second Degree and Identity Theft in the Second
Degree.9 Id. at 204, 426 P.3d at 428. Notably, the charges did
not include any express allegation of a scheme or course of
conduct. Nonetheless, the supreme court held that the circuit
court erred in determining that the State was barred from
charging theft as a continuing course of conduct and ultimately
affirmed this court's decision to vacate the circuit court's
order dismissing the Theft in the Second Degree and Identity
Theft in the Second Degree counts. Id. at 206-07, 426 P.3d at
430-31. The supreme court noted:
While Yokota does not argue on certiorari that the
[Intermediate Court of Appeals] erred in also reinstating
Count VIII (identity theft in the second degree), our
decision on whether the State could charge Yokota with theft
in the second degree directly affects the validity of the
identity theft in the second degree charge. A person can
only be charged with identity theft in the second degree if
that person makes or causes to be made a transmission of any
personal information of another, "with the intent to commit
the offense of theft in the second degree from any person or
entity." HRS § 708-839.7 (2014) (emphasis added).
Id. at 205 n.7, 426 P.3d at 429 n.7.
In Count I, Shaw was charged with Computer Fraud 3,
which requires an allegation that the charged individual
"knowingly accesse[d] a computer, computer system, or computer
9
The relevant charges were:
Count VI: Theft in the Second Degree, in violation of
HRS § 708-831(1)(b), where Yokota "did obtain or exert
unauthorized control over the property of [Kama] and/or [ASB],
the value of which exceeds Three Hundred Dollars ($300.00), by
deception, with intent to deprive [Kama] and/or [ASB] of the
property."
. . . .
Count VIII: Identity Theft in the Second Degree, in
violation of HRS § 708-839.7, where Yokota
did make or cause to be made, either directly or
indirectly, a transmission of any personal
information of [Kama] by any oral statement, any
written statement, or any statement conveyed by
electronic means, with the intent to commit the
offense of Theft in the Second Degree from [Kama]
and/or [ASB] . . . .
Id. at 202-03, 426 P.3d at 426-27 (footnotes omitted).
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network with the intent to commit the offense of theft in the
third or fourth degree." HRS § 708-891.6 (emphasis added).
Thus, because Computer Fraud 3 is predicated on theft in the
third or fourth degree, it follows that Computer Fraud 3 may also
be charged as a continuing course of conduct. Cf. Yokota, 143
Hawai#i at 205 n.7, 426 P.3d at 429 n.7. We therefore conclude
that the State was not barred from aggregating multiple alleged
instances of theft in charging Shaw with Computer Fraud 3. We
further conclude that, under the Motta/Wells rule, it was not
necessary to expressly allege in the Indictment that Shaw engaged
in a scheme or course of conduct. See id. at 202-03, 426 P.3d at
426-27.
Regardless, it is clear from reading the Indictment as
a whole that the State charged Shaw with Computer Fraud 3 on a
continuing course of conduct theory. Count I alleged that "[o]n
or about January 16, 2017, through and including May 18, 2017,"
Shaw "did knowingly access a computer, computer system, or
computer network with the intent to commit the offense of theft
in the third degree" and that "[a] person commits the offense of
theft in the third degree if she intentionally obtains and exerts
unauthorized control over property of another, the value of which
exceeds Two Hundred and Fifty Dollars ($250.00), with intent to
deprive the other of property valued in excess of Two Hundred and
Fifty Dollars ($250.00)." Count II identified the same four-
month time period as Count I and alleged that Shaw "did use
credit card numbers without the consent of the cardholders
. . . ." It can be reasonably inferred, due to the references to
the same time period, that both charges are based on the same
underlying conduct. Although Count I did not expressly allege
that the conduct involved multiple victims and instances of
theft, when read in conjunction with Count II, the charge is
sufficient. See Tominiko, 126 Hawai#i at 76, 266 P.3d at 1130
(holding that, under the liberal construction standard, a charge
for Operating a Vehicle Under the Influence (OVUII) was not
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insufficient for failing to allege that the conduct occurred on a
public roadway where a separate count contained the necessary
allegation and both counts refer to operating a motor vehicle on
the same day in Honolulu, Hawai#i). The Indictment, when read as
a whole, apprised Shaw that she was being charged for multiple
thefts involving multiple credit card transactions. Shaw has not
shown that Count I cannot reasonably be construed to allege a
crime under the Motta/Wells rule.10
Having concluded that the Indictment can reasonably be
construed to charge the offense of Computer Fraud 3, we now turn
to whether Shaw has shown that she was prejudiced under the
Motta/Wells rule.
[I]n determining whether the accused's right to be informed
of the nature and cause of the accusation against him or her
has been violated, we must look to all of the information
supplied to him or her by the State to the point where the
court passes upon the contention that the right has been
violated.
State v. Hitchcock, 123 Hawai#i 369, 379, 235 P.3d 365, 375
(2010) (emphasis and original brackets omitted). Furthermore, "a
defendant's right to be informed of the nature and cause of the
accusation can be deemed satisfied if the record 'clearly
demonstrate[s] the defendant's actual knowledge' of the charges
against him or her." Id. (alteration in original) (quoting State
v. Israel, 78 Hawai#i 66, 71, 890 P.2d 303, 308 (1995)).
As Shaw only challenges the sufficiency of the
Indictment for the first time on appeal, we look to the record
below to determine whether Shaw's right to be informed of the
nature and cause of the accusations can be deemed satisfied. The
record reflects that, at the grand jury proceedings, the State
introduced exhibits that consisted of copies of the 105 credit
card receipts, as well as a spreadsheet that summarized the
10
We emphasize that, with the facts in this case, our analysis is
based on the liberal construction standard and we do not address whether an
analysis under the standard governing pre-conviction challenges to sufficiency of
charges would reach a different result.
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transactional details of the 105 credit card receipts. In a
Motion to Dismiss filed by Shaw, she refers to these documents as
appearing to be duplicates of what was produced in discovery,
indicating her receipt of the documents. Shaw also specifically
acknowledges and discusses the State's aggregation of the amounts
involved in multiple credit card transactions upon which the
charge was based. Thus, the record is clear that Shaw was fully
aware that the charge was based on aggregated amounts. We
therefore find no merit in Shaw's contention that she was not
provided adequate notice of the nature of the charge against her.
We also find no merit in Shaw's contention that she
suffered prejudice because the State was relieved of its burden
to call all 105 witnesses and Shaw was deprived of her right to
confront all 105 witnesses. The prosecution is not required to
call as witnesses all individuals who have knowledge of the
events disclosed by the evidence and pertaining to the offense
alleged to have been committed by the defendant. See State v.
Padilla, 114 Hawai#i 507, 516, 164 P.3d 765, 774 (App. 2007).
Indeed, the record reflects that the jury in this case was given
an instruction stating such, to which Shaw made no objection.11
The State therefore did not have a burden to call all 105
cardholders as witnesses and could instead rely on other
evidence.
Shaw has not shown that Count I cannot be construed to
charge Computer Fraud 3, or that she has suffered prejudice from
the State's failure to allege a scheme or course of conduct in
Count I. Therefore, under the liberal Motta/Wells rule, Shaw has
not shown that Count I was insufficient so as to warrant vacating
11
The jury instruction was based on Hawai#i Pattern Jury Instructions -
Criminal (HAWJIC) Instruction 3.12 (1991) and provided as follows:
The prosecution is not required to call as witnesses all
persons who may have been present at any of the events
disclosed by the evidence or who may appear to have some
knowledge of these events, or to produce all objects or
documents mentioned or suggested by the evidence.
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her conviction of Computer Fraud 3.
2. Count II (Credit Card Fraud) was legally insufficient.
For Count II, the charge appears to substantially track
the language of the statute for Credit Card Fraud, with one
notable difference -- the plain language of HRS § 708-8100(1)(c)
is written in the singular, indicating that the offense occurs
upon a defendant's fraudulent use of a single credit card, but
the State charged Shaw with Credit Card Fraud based on her use of
multiple credit cards. Under HRS § 708-8100(1)(c), a person
commits Credit Card Fraud if the person "[u]ses or attempts or
conspires to use a credit card number without the consent of the
cardholder for the purpose of obtaining money, goods, services,
or anything else of value." (Emphases added.) Here, the State
charged Shaw with "us[ing] credit card numbers without the
consent of the cardholders" (emphases added) to obtain money in
excess of $300 between January 16, 2017, and May 18, 2017. The
State met the $300 threshold to charge Shaw with Credit Card
Fraud as a class C felony12 by aggregating numerous transactions
involving multiple credit cards because none of the individual
transactions exceeded $300 in value.
Shaw argues that the State was not allowed to aggregate
the use of multiple credit cards in charging Shaw with Credit
Card Fraud. Shaw further argues that if such aggregation is
allowed, then pursuant to HRS § 708-801(6), the State was
required to allege a scheme or course of conduct in Count II to
provide Shaw with adequate notice and alert her of precisely what
she needed to defend against to avoid a conviction.
We first look to the plain language of HRS § 708-8100
in determining whether the offense of Credit Card Fraud can be
based on an aggregation of transactions involving multiple credit
cards. See State v. Demello, 136 Hawai#i 193, 195, 361 P.3d 420,
12
Credit Card Fraud is a class C felony "if the value of all money,
goods, services, and other things of value obtained or attempted to be obtained
exceeds $300 in any six-month period." HRS § 708-8100(2).
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422 (2015) ("The plain language of a statute is 'the fundamental
starting point of statutory interpretation.'"). The plain
language of HRS § 708-8100 is written in the singular, indicating
that the offense is committed based on the use of "a credit card"
or "a credit card number" "without the consent of the
cardholder." Further, subsection (2) expressly contemplates
aggregation of the value of the goods obtained through fraudulent
use by referring to "goods, services, and other things of value"
in the plural. HRS § 708-8100(2). In the following sentence, it
seems the legislature intentionally refers to "each separate use
of a credit card" that exceeds $300 as creating a separate
offense. Id. (emphasis added). Thus, the legislature carefully
distinguished between singular and plural forms in the same
statutory provision, indicating an intent to proscribe the
fraudulent use of "a credit card," and to provide for the
aggregation of dollar values obtained through such use. In this
context, the legislature did not provide for the aggregation of
transactions involving multiple credit cards.
The use of singular language, however, is not
conclusive. AlohaCare v. Ito, 126 Hawai#i 326, 347, 271 P.3d
621, 642 (2012). HRS § 1-17 (2009) provides the general rule of
statutory construction that "[w]ords . . . in the singular or
plural number signify both the singular and plural number[.]"
Nonetheless, "[t]his court has interpreted statutes using the
statutory presumption in HRS § 1-17 only after reviewing the
legislative history and context in which a statute was passed to
determine whether the legislature intended to signify both the
singular and plural forms of a word." AlohaCare, 126 Hawai#i at
347, 271 P.3d at 642. Thus, we must look to legislative history
to determine whether the legislature intended prosecution for the
offense of Credit Card Fraud under HRS § 708-8100 to be based on
the use of multiple credit cards or credit card numbers.
The original form of the Credit Card Fraud statute was
first enacted in 1965, along with other credit card offenses.
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1965 Haw. Sess. Laws Act 189, § 2 at 267. The legislature
explained:
The purpose of this bill is to set forth criminal
offenses involving credit cards and penalties relating
thereto.
Your Committee finds that both consumers and
businessmen have suffered substantial losses because of the
wrongful use of credit cards. Many frauds are incurred
where a credit card is lost or stolen and subsequently
misappropriated.
H. Stand. Comm. Rep. No. 252, in 1965 House Journal, at 596.
There is nothing in the legislative history of the original
Credit Card Fraud statute to indicate that the legislature
intended to signify both singular and plural forms of the phrases
"a credit card," "a credit card number," and "without the consent
of the cardholder." See id.; H. Stand. Comm. Rep. No. 441, in
1965 House Journal, at 650; S. Stand. Comm. Rep. No. 697, in 1965
Senate Journal, at 1113. Neither does the legislative history of
subsequent amendments to the statute contain any indication that
the legislature intended the offense to be prosecuted based on
multiple credit cards or credit card numbers. Conf. Comm. Rep.
No. 94-06, in 2006 House Journal, at 1813, 2006 Senate Journal,
at 946-47; S. Stand. Comm. Rep. No. 3215, in 2006 Senate Journal,
at 1557; H. Stand. Comm. Rep. No. 665-06, in 2006 House Journal,
at 1359-60; H. Stand. Comm. Rep. No. 1173-88, in 1988 House
Journal, at 1257-58; S. Stand. Comm. Rep. No. 2138, in 1988
Senate Journal, at 921; S. Stand. Comm. Rep. No. 820-86, in 1986
Senate Journal, at 1168-70; S. Stand. Comm. Rep. No. 569-86, in
1986 Senate Journal, at 1036-37; H. Stand. Comm. Rep. No. 487, in
1985 House Journal, at 1216-18; H. Stand. Comm. Rep. No. 815, in
1983 House Journal, at 1216; S. Stand. Comm. Rep. No. 381, in
1983 Senate Journal, at 1201; S. Stand. Comm. Rep. No. 1120, in
1977 Senate Journal, at 1300; H. Stand. Comm. Rep. No. 253, in
1977 House Journal, at 1394-95; S. Stand. Comm. Rep. No. 1069-74,
in 1974 Senate Journal, at 1167; H. Stand. Comm. Rep. No. 470-74,
in 1974 House Journal, at 741; H. Stand. Comm. Rep. No. 240-74,
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in 1974 House Journal, at 649; S. Stand. Comm. Rep. No. 893-70,
in 1970 Senate Journal, at 1409-10; H. Stand. Comm. Rep. No. 536-
70, in 1970 House Journal, at 1055-58; H. Stand. Comm. Rep. No.
317-70, in 1970 House Journal, at 904-05.
In the absence of any legislative history indicating
that the legislature intended Credit Card Fraud to be prosecuted
as a felony based on multiple credit cards or credit card
numbers, we rely on the legislative intent expressed in the plain
language of the statute, as analyzed above, without resorting to
HRS § 1-17.
Furthermore, in analyzing HRS § 851-4 (Supp. 1982),13
the predecessor statute to HRS § 708-8100, this court has held
that "[t]he utility of the six-month period is . . . to cumulate
the number of fraudulent uses of the same credit card and
aggregate the value of the goods during such period to permit a
felony charge[.]" State v. Daly, 4 Haw. App. 52, 56, 659 P.2d
83, 86 (1983) (emphasis added). Thus, under HRS § 708-8100(2),
the offense of Credit Card Fraud can be charged as a class C
felony by aggregating the dollar values of multiple transactions
involving the same credit card, but not by aggregating the values
of multiple transactions involving more than one credit card or
credit card number.
Based on the foregoing, we conclude that Count II was
13
HRS § 851-4 (Supp. 1982) provided:
§851-4 Fraudulent use of credit cards, etc., penalties.
A person, who, with intent to defraud the issuer, a person or
organization providing money, goods, services, or anything
else of value, or any other person, . . . (2) obtains or
attempts or conspires to obtain money, goods, services, or
anything else of value by representing without the consent of
the cardholder that he is the holder of a specified card or by
representing that he is the holder of a card and such card has
not in fact been issued, violates this section and is subject
to the penalties set forth in subsection 851-10(a), if the
value of all money, goods, services, and other things of value
obtained or attempted to be obtained in violation of this
section does not exceed $100 in any six-month period; and is
subject to the penalties set forth in subsection 851-10(b), if
such value exceeds $100 in any six-month period.
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defective for improperly aggregating the values of transactions
arising from multiple credit cards and thus cannot reasonably be
construed to charge the offense of Credit Card Fraud under HRS
§ 708-8100 as a class C felony. We therefore vacate Shaw's
conviction for Count II.
B. Motion to Dismiss the Indictment
Shaw contends that the circuit court should have
granted her Motion to Dismiss because the evidence that the State
adduced before the grand jury was insufficient to establish
probable cause for the charged offenses.
Regarding Count II, we conclude that there was
insufficient evidence to establish probable cause that Shaw
committed Credit Card Fraud as charged. In light of our
conclusion discussed supra that Credit Card Fraud cannot be
charged as a class C felony by aggregating the values of
transactions involving multiple credit cards or credit card
numbers, we further conclude that there was insufficient evidence
to establish probable cause that Shaw used a single credit card
or credit card number without the consent of the cardholder to
obtain money in excess of $300. See HRS § 708-8100(1)(c), (2).
The circuit court therefore erred in not dismissing Count II.
As for Count I, Computer Fraud 3, Shaw's challenge to
the Motion to Dismiss has no merit on appeal.
In State v. Montgomery, 103 Hawai#i 373, 381, 82 P.3d 818,
826 (App. 2004), we held that the defendant could not
challenge, on appeal, the denial of his or her motion to
dismiss the indictment for lack of probable cause after a
conviction. In support of our holding, we cited In re Doe,
102 Hawai#i 75, 78, 73 P.3d 29, 32 (2003), in which the
Hawai#i Supreme Court stated that "absent unusual
circumstances, any defects in a pretrial determination of
probable cause are rendered moot, or are without any
effective remedy, which is much the same thing, by a
subsequent conviction."
State v. Torres, 122 Hawai#i 2, 14 n.7, 222 P.3d 409, 421 n.7
(App. 2009), aff'd and corrected on other grounds by 125 Hawai#i
382, 262 P.3d 1006 (2011). Shaw's challenge to the circuit
court's denial of her motion to dismiss the Computer Fraud 3
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charge based on a lack of probable cause was rendered moot by her
subsequent conviction of the offense after trial. There are no
unusual circumstances in this case.
C. Jury Instructions
Shaw challenges the definition of "inference" given in
the circuit court's jury instructions. At trial, defense counsel
objected to the instruction with the definition of "inference" on
the basis that there was already a separate general instruction,
based on HAWJIC, that discussed circumstantial evidence, which
permits reasonable inferences to be drawn.
The circuit court instructed the jury on the definition
of "inference" as follows:
An "inference" is a logical and reasonable conclusion of the
existence of a fact from the establishment of other facts,
from which, by the process of logic and reason, and based on
human experience, the existence of an assumed fact may be
concluded by the jury. Lack of consent may be proved
circumstantially on the basis of logical and reasonable
inferences drawn from the evidence adduced and common human
experience.
On appeal, Shaw argues that the given definition was
confusing, unclear, unhelpful, and failed to instruct the jury in
a manner that they could understand. Shaw cites no authority to
support her conclusory assertions. Shaw also argues that the
given definition for "inference" was misleading and prejudicial
as it contradicted the concept of reasonable doubt, which
prohibits finding the defendant guilty based on mere suspicion or
probability.
The definition of "inference" given in this instruction
is identical to the definition adopted by the Hawai#i Supreme
Court in State v. Pone, 78 Hawai#i 262, 273, 892 P.2d 455, 466
(1995), and is thus a correct statement of the law. Furthermore,
we find nothing in the given instruction that is inconsistent
with the law pertaining to reasonable doubt. As such, we
conclude that the jury instruction was not erroneous.
Shaw next challenges the circuit court's instructions
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on the elements of Computer Fraud 3.14 Shaw did not raise any
objection to this jury instruction at trial.
The circuit court instructed the jury on the elements
of Computer Fraud 3 as follows:
In Count I, the Defendant, Susan E. Shaw, is charged
with committing the offense of Computer Fraud in the Third
Degree.
A person commits the offense of Computer Fraud in the
Third Degree if she accesses a computer, computer system, or
computer network with the intent to commit the offense of
theft in the third degree.
There are two elements to the offense of Computer
Fraud in the Third Degree, each of which the prosecution
must prove beyond a reasonable doubt.
These two elements are:
1. That on or about the January 16, 2017, through
and including the May 18, 2017, in the City and
County of Honolulu, State of Hawaii, the
Defendant, Susan E. Shaw, accessed a computer,
computer system, or computer network; and
2. That the Defendant, Susan E. Shaw, did so with
the intent to commit the offense of theft in the
third degree.
A person commits the offense of theft in the third
degree if she obtains or exerts unauthorized control over
the property of another, the value of which exceeds $250.00,
with intent to deprive the person of that property.
Shaw reiterates her contention that the State could not
aggregate theft amounts for the purpose of charging Shaw with
Computer Fraud 3. Shaw further argues that, with the aggregated
nature of the charge, the circuit court erred in failing to
instruct the jury on the definition of scheme and the mens rea
related to Shaw's intent to engage in a scheme.
As we have discussed supra, the State was allowed to
aggregate the amounts upon which the Computer Fraud 3 charge was
based, pursuant to HRS § 708-801(6). However, in Yokota, the
14
Shaw also challenges the jury instruction on the elements of Credit
Card Fraud. However, because we vacate Shaw's conviction for Credit Card Fraud
on the basis of a legally insufficient charge, we need not address the portion of
Shaw's challenge to the jury instructions that relates to the Credit Card Fraud
charge.
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supreme court emphasized that the question of "whether a
continuing course of conduct offense occurred is a question that
should be submitted to the jury." 143 Hawai#i at 206, 426 P.3d
at 430 (citing State v. Matias, 102 Hawai#i 300, 305, 75 P.3d
1191, 1196 (2003) ("The test to determine whether the defendant
intended to commit more than one offense is whether the evidence
discloses one general intent or discloses separate and distinct
intents. . . . All factual issues involved in this determination
must be decided by the trier of fact." (emphasis in original)),
and People v. Daghita, 92 N.Y.S.2d 799, 802 (N.Y. App. Div. 1949)
("What is 'separate', what is 'single', . . . are all jury
questions both by legal tradition and by necessity. . . . The
question of whether the takings were separate or united in
purpose was carefully and fairly submitted to the jury as a
question of fact[.]")).
Here, the instruction regarding Computer Fraud 3 did
not submit to the jury the factual question of whether Shaw
engaged in one scheme or course of conduct, in other words,
whether the evidence disclosed one general intent or separate and
distinct intents. The question was determinative of whether Shaw
met the $250 threshold to be convicted of Computer Fraud 3 based
on an aggregation of numerous transactions, where none of the
individual transactions exceeded $250 in value. Thus, we cannot
say that there was no reasonable possibility that the circuit
court's failure to submit the issue to the jury contributed to
Shaw's conviction; the error was therefore not harmless beyond a
reasonable doubt. See Nichols, 111 Hawai#i at 337, 141 P.3d at
984. Shaw's conviction for Computer Fraud 3 must be vacated on
this ground and remanded for a new trial.15
V. CONCLUSION
Based on the foregoing, we vacate the Judgment of
15
In light of our decision to vacate Shaw's conviction of both counts,
we need not address Shaw's remaining points of error.
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Conviction and Sentence, entered July 11, 2018, by the Circuit
Court of the First Circuit, and we remand this matter for a new
trial on Count I.
DATED: Honolulu, Hawai#i, May 15, 2020.
On the briefs:
/s/ Lisa M. Ginoza
Chad Kumagai, Chief Judge
Deputy Prosecuting Attorney,
City and County of Honolulu,
for Plaintiff-Appellee. /s/ Derrick H. M. Chan
Associate Judge
Taryn R. Tomasa,
Deputy Public Defender,
for Defendant-Appellant. /s/ Clyde J. Wadsworth
Associate Judge
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