426 P.3d 424 (Hawai‘i 2018), SCWC-16-0000006, State v. Yokota

Docket Nº:SCWC-16-0000006
Citation:426 P.3d 424, 143 Hawai‘i 200
Opinion Judge:NAKAYAMA, J.
Party Name:STATE of Hawai‘i, Respondent/Plaintiff-Appellant, v. Eric N. YOKOTA, Petitioner/Defendant-Appellee.
Attorney:Christian G. Enright, (William H. Jameson, Jr., with him on the briefs), for petitioner/defendant-appellee Brian R. Vincent for, respondent/plaintiff-appellant
Judge Panel:RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.
Case Date:September 05, 2018
Court:Supreme Court of Hawai'i
 
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Page 424

426 P.3d 424 (Hawai‘i 2018)

143 Hawai‘i 200

STATE of Hawai‘i, Respondent/Plaintiff-Appellant,

v.

Eric N. YOKOTA, Petitioner/Defendant-Appellee.

No. SCWC-16-0000006

Supreme Court of Hawai‘i

September 5, 2018

Page 425

CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CAAP-16-0000006; CR. NO. 15-1-0999)

Christian G. Enright, (William H. Jameson, Jr., with him on the briefs), for petitioner/defendant-appellee

Brian R. Vincent for, respondent/plaintiff-appellant

RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.

OPINION

NAKAYAMA, J.

[143 Hawai‘i 201] Petitioner/Defendant-Appellee Eric N. Yokota (Yokota) was charged with five counts of forgery and one count of theft for fraudulently cashing five checks from the same bank account over the course of six days in December 2014. The question he presents on certiorari is whether Respondent/Plaintiff-Appellant State of Hawai‘i (the State) could simultaneously charge him with one count of theft as a continuing course of conduct and five individual counts of forgery.

Notwithstanding the five counts of forgery, because the language of our theft statute permits theft to be charged as a continuing course of conduct, we conclude that the Circuit Court of the First Circuit (circuit court) erred in dismissing the theft charge as a matter of law. As the Intermediate Court of Appeals (ICA) concluded the same, we affirm the ICA’s July 26, 2017 judgment on appeal.

I. BACKGROUND

On June 23, 2015, Yokota was charged with several criminal counts stemming from five incidents, occurring over the course of six days, where he allegedly forged and cashed fraudulent checks. Specifically, the State alleged that:

On December 11, 2014, Yokota entered the Pearlridge branch of American Savings Bank (ASB) and presented a teller with an ASB check drawn on the account of Rudolph Kama (Kama). The check was made payable to "Cash" in the amount of $100, which the teller cashed for Yokota.

On December 12, 2014, Yokota entered the Stadium Mall branch of ASB and presented a teller with an ASB check drawn on Kama’s account. The check was made payable to

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[143 Hawai‘i 202] "Cash" in the amount of $175, which the teller cashed for Yokota.

On December 13, 2014, Yokota entered the Pearl City branch of ASB and presented a teller with an ASB check drawn on Kama’s account. The check was made payable to "Eric Yokota" in the amount of $200, which the teller cashed for Yokota.

On December 15, 2014, Yokota again entered the Pearl City branch of ASB and presented a teller with an ASB check drawn on Kama’s account. The check was made payable to "Cash" in the amount of $145, which the teller cashed for Yokota.

Finally, on December 16, 2014, Yokota entered the Salt Lake branch of ASB and presented a teller with an ASB check drawn on Kama’s account. The check was made payable to "Cash" in the amount of $100, which the teller cashed for Yokota.

Each check that Yokota had allegedly cashed was less than $300 in value, but in the aggregate, totaled $720.

On January 6, 2015, Kama filed a police report alleging that seven checks were drawn on his personal account without his knowledge or authorization. Kama related that five of the seven forged checks were endorsed by Yokota. Kama further stated that he believed Yokota to be a friend of his deceased son’s girlfriend.

Accordingly, Yokota was arrested on June 22, 2015 and charged with eight criminal counts by an amended felony information filed on June 30, 2015. The eight counts were charged as follows:

Counts I-V: Forgery in the Second Degree, in violation of Hawai‘i Revised Statutes (HRS) § 708-852,1 for the five separate occasions where Yokota did, with intent to defraud, falsely utter a forged instrument, to wit, [an ASB check] drawn on the account of [Kama], made payable to "Cash" in the amount of [$100.00, $175.00, $200.00, $145.00, and $100.00], which is or purports to be, or which is calculated to become or to represent if completed, a commercial instrument, or other instrument which does or may evidence, create, transfer, terminate, or otherwise affect a legal right, interest, obligation, or status....

Count VI: Theft in the Second Degree, in violation of HRS § 708-831(1)(b),2 where Yokota "did obtain or exert unauthorized control over the property of [Kama] and/or [ASB], the value of which exceeds Three Hundred Dollars ($300.00), by deception, with intent to deprive [Kama] and/or [ASB] of the property."

Count VII: Unauthorized Possession of Confidential Personal Information, in violation of HRS § 708-839.55,[3] where Yokota "did intentionally or knowingly possess, without authorization, any confidential personal information of [Kama] in any form...."

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[143 Hawai‘i 203] Count VIII: Identity Theft in the Second Degree, in violation of HRS § 708-839.7,4 where Yokota did make or cause to be made, either directly or indirectly, a transmission of any personal information of [Kama] by any oral statement, any written statement, or any statement conveyed by electronic means, with the intent to commit the offense of Theft in the Second Degree from [Kama] and/or [ASB]....

A. Circuit Court Proceedings: Motion to Dismiss

On August 4, 2015, Yokota filed a motion to dismiss Counts VI (theft in the second degree) and VIII (identity theft in the second degree) in the circuit court.5 Yokota argued that under the circumstances in his case, the State could not charge him with theft in the second degree because he did not steal "property or services the value of which exceeds $300" pursuant to HRS § 708-831(1)(b).

First, Yokota noted that no single check, by itself, exceeded the statutory minimum required to charge him for theft in the second degree.

Second, Yokota argued that the State could not aggregate the five separate incidents of theft into one under a continuing course of conduct theory in order to satisfy the $300 threshold amount. Yokota contended that under State v. Castro, 69 Haw. 633, 653, 756 P.2d 1033, 1047 (1988), "[t]he test to determine whether [a] defendant intended to commit more than one offense in the course of a criminal episode is whether the evidence discloses one general intent or discloses separate and distinct intents." "If there is but one intention, one general impulse and one plan, there is but one offense." Id. Here, Yokota argued, on each day that he forged and cashed a check, he allegedly had one impulse (to steal money) and one plan (to pass a stolen check at a bank). The allegations that he had similar impulses on subsequent days are irrelevant and do not prove general intent to steal over $300 such that the State is justified in charging more serious offenses.

Yokota further contended that this court’s reasoning in State v. Decoite, 132 Hawai‘i 436, 323 P.3d 80 (2014), was directly applicable to his case. He noted that in Decoite, this court held that two instances of domestic physical abuse that occurred over a two-year period could not be charged as a continuing course of conduct offense because "physical abuse" was "necessarily discrete and episodic." 132 Hawai‘i at 438, 323 P.3d at 82. Similar to an incident of domestic violence, Yokota argued...

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