State v. Means

• Decision Date: 29 June 2020
• Docket Number: SCWC-16-0000810
• Citation: 468 P.3d 226
• Parties: STATE of Hawai‘i, Respondent/Plaintiff-Appellee, v. Mark MEANS, also known as Mark Edward Means, Petitioner/Defendant-Appellant.
• Court: Hawaii Supreme Court

468 P.3d 226

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

v.Mark MEANS, also known as Mark Edward Means, Petitioner/Defendant-Appellant.

SCWC-16-0000810

Supreme Court of Hawai‘i.

June 29, 2020

Randall K. Hironaka, Honolulu, for Petitioner

Peter A. Hanano, for Respondent

Recktenwald, C.J., Nakayama, McKenna, Pollack, and Wilson, JJ.

OPINION OF THE COURT BY WILSON, J.

I. Introduction

This case arises from the arrest and conviction of Petitioner/Defendant-Appellant Mark Edward Means ("Means") for theft in the second degree by Shoplifting. The Circuit Court of the Second Circuit ("circuit court") sentenced Means as a repeat offender to a mandatory minimum of five years’ incarceration without the possibility of parole. In sentencing Means to a mandatory minimum as a repeat offender, the circuit court did not require a jury to find that Means qualified as a repeat offender beyond a reasonable doubt as required by State v. Auld, 136 Hawai‘i 244, 361 P.3d 471 (2015). The Intermediate Court of Appeals ("ICA") affirmed the conviction and sentence in a Summary Disposition Order ("SDO").

In Auld, this court held "that a jury is required to find that the defendant's prior conviction(s) have been proved beyond a reasonable doubt to trigger the imposition of a mandatory minimum sentence under [ HRS § 706-606.5 ]." Id. at 257, 361 P.3d at 484. Although Auld was given "prospective effect only," it was published one day before Means was convicted and nearly a year before he was sentenced as a repeat offender. Id. Therefore, pursuant to Auld, Means’ sentence violated his right to a jury determination as to whether he qualified to be sentenced as a repeat offender pursuant to HRS § 706-606.5.

Accordingly, the ICA's December 13, 2018 Judgment on Appeal is vacated, the circuit court's October 21, 2016 sentence is vacated, and Means’ case is remanded to the circuit court for resentencing in conformance with Auld.

II. Background

A. Circuit Court Proceedings

On September 8, 2015, Means was charged by felony information with the offense of theft in the second degree by Shoplifting, in violation of Hawai‘i Revised Statutes ("HRS") § 708-831(1)(b).¹ The incident took place on September 2, 2015 at the Sears department store in Queen Ka‘ahumanu Mall on Maui, and involved the theft of a tent, a tool set, and a multimeter² with a total aggregated value exceeding $300.00.

1. Trial

At trial, the State presented testimony from Arthur Wake ("Wake"), an asset protection manager at the Sears department store in Queen Ka‘ahumanu Mall on Maui and from Officer Ashley Gandauli of the Maui Police Department ("MPD"), among others.³

Wake testified that he observed Means on Sears’ security cameras as Means carried various items, including a Northwoods brand tent and a DeWalt brand tool set, toward Sears’ automotive exit. Wake positioned himself outside the store's automotive exit and intercepted Means when he walked out. Wake testified that he identified himself to Means as Sears asset protection and asked for the items back. Means put the items on the ground and began to walk away. Wake called the Maui Police Department ("MPD"), told them what had happened, and gave them a description of Means and the direction he was going.

Wake testified that he subsequently returned to the automotive exit of Sears and recovered the items that Means left on the ground. He took a photograph of the items; that photograph, showing the tent, the multimeter, and the tool set, was admitted into evidence. The items in the photograph do not bear any tags or labels indicating their value. The tool set and the multimeter were covered in security devices called "spider wrap" that Wake testified is standard for Sears merchandise priced $99.99 and above.⁴

Wake worked with another Sears employee to produce a receipt to show the prices of the items. He identified State's Exhibit No. 4 as the receipt that was made for the MPD officers; the receipt lists the prices of the tool set, the multimeter, and the camping tent. Wake testified that the receipt was "a true and accurate receipt for those items[,]" but that he was not the person who generated the receipt. Instead, a "hub associate[,]" who Wake did not know,⁵ rang up the merchandise because asset protection is not allowed to touch the registers.⁶

Defense counsel objected to the receipt being entered into evidence, arguing that it had not been properly authenticated due to the fact that Wake had no knowledge of the system and the person who rang up the items was unknown. Defense counsel also argued the receipt was inadmissible hearsay evidence.

The court allowed the prosecutor to supplement the foundation for introduction of the receipt by having Wake provide further testimony regarding the process used to produce the receipt. Wake testified that in order to produce a receipt, he called his "ASM," who is a manager, to the hub office, and the manager produced the receipt by scanning the merchandise at an office register used for complex returns and for generating receipts after theft incidents. Wake testified that he was personally present at the time the receipt was produced.⁷

Defense counsel renewed his objection to admitting the receipt. The court indicated that in order for the receipt to be admissible, it would be helpful to have testimony that the prices on the receipt were accurate.

Wake testified that he knew the retail price of the items because he viewed the receipt and also because he had a "rough idea" of their cost from walking around the floor of the store and viewing the posted prices. The prosecutor next asked him: "on September 2nd, 2015, what was the posted -- price that was posted near or on these items?" Although the defense objected to the question, the objection was overruled and Wake responded that the tool set cost $219.99, the multimeter cost $169.99, and the tent cost $129.99. He testified again that the receipt was produced by a manager, who scanned the items at the register in the hub location, that the manager would be trained in the procedures of producing a receipt according to Sears’ protocol and the manufacturer's specifications, and that he personally witnessed the manager produce the receipt. The prosecution asked to submit the receipt into evidence. Defense counsel again objected, and the court overruled the objection and admitted the receipt.

Wake identified the three items on the receipt and again listed their prices: $129.99 for the tent, $169.99 for the multimeter, and $219.99 for the tool set, for a total of $519.97. He testified that the sales price for the tent was posted directly below the tent and that the price for the tool set was posted below the tool set.⁸

Ashley Gandauli ("Officer Gandauli"), a patrol officer with the MPD, also testified for the prosecution. Officer Gandauli testified that she received a call from dispatch about a theft in progress incident in the area of Sears and was subsequently able to locate and detain Means.

On cross-examination, defense counsel asked Officer Gandauli whether she had made a notation of any address for Means in her report. The prosecution objected that the question did not call for relevant evidence; at a bench conference, the prosecutor argued that the defense was getting into character evidence and that if they brought in evidence that Means was homeless, it would open the door for the State to bring in evidence that he was homeless and unemployed "and all of these other things about his background and character." The court stated that the information about Means "may relate to his ability to have intended to pay for the merchandise." Defense counsel stated that he would not ask if Means was homeless and would limit his questions to whether Officer Gandauli noted an address or that Means was unemployed on the police report, which would limit the evidence to what was in the report. The court allowed the questions.

Defense counsel then asked Officer Gandauli if she entered an address on the police report. Officer Gandauli said she did not. Defense counsel asked her, "[w]hy was that?" and Officer Gandauli said, "[h]e stated that he was homeless; that he did not have a local address." Defense counsel told the court he "didn't ask for that, but now it's out." The court said defense counsel did ask for it because he asked the officer why she didn't enter an address. Defense counsel stated he had no objection to the answer and that "I am quite happy" with it.

2. Closing Arguments and Verdict

During the defense's closing argument, defense counsel argued that Means was guilty of shoplifting, but that he did not have the requisite state of mind to be found guilty of theft in the second degree because he did not know that the aggregate value of the items was greater than $300.⁹ During closing arguments, Defense counsel made two references to the fact that Means was homeless. Near the beginning of his argument, defense counsel said, "[d]uring the trial, we saw several things, we learned several things. We learned Mark is homeless." Later in the closing argument, defense counsel referenced Means’ homelessness again:

Mark's not an electronic calculator, and he's not a cash register. He's a homeless man who, apparently, went into Sears seeking shelter --

[Prosecutor]: Objection, Your Honor. Not substantiated by the evidence.

THE COURT: The objection is sustained.

[Defense Counsel]: Mark is a homeless man that is clearly taking a tent for whatever purpose he would -- a homeless person would take a tent.

There is no -- it's very doubtful that Mark actually knew the aggregate value of the three items that he selected, and then later, as eloquently pointed out by the officer, deselected when he was confronted by Sears security. That's in doubt. That's in reasonable doubt.

Defense counsel argued that Means did not know that the value of the items he took was over $300, but that it was reasonable to assume he knew the value of the items were over $100. Accordingly, the defense...