State v. Martin, 6934

• Decision Date: 19 August 1980
• Docket Number: No. 6934,6934
• Citation: 616 P.2d 193,62 Haw. 364
• Parties: STATE of Hawaii, Plaintiff-Appellee, v. Barbara Jean MARTIN, also known as Barbara Jean Alohalani Rodrigues and Barbara Jean Eberly, Defendant-Appellant.
• Court: Hawaii Supreme Court

Page 193

616 P.2d 193

62 Haw. 364

STATE of Hawaii, Plaintiff-Appellee, v. Barbara Jean MARTIN, also known as Barbara Jean Alohalani Rodrigues and Barbara Jean Eberly, Defendant-Appellant.

No. 6934.

Supreme Court of Hawai'i Aug. 19, 1980.

Syllabus by the Court

1. There is but one offense, even if there is a series of transactions, if there is but one intention and plan.

2. The State is not precluded from charging defendant with an offense covering only part of the entire period of a continuous offense.

3. Statute providing that an offense is committed before the effective date of a criminal statute if any element of the offense occurred before that date means that all the elements necessary to prove a charged crime must be shown at trial to have occurred after the effective date of the statute.

4. The date of the most recent act of a continuing offense governs the application of statute of limitations.

5. Prosecution under a general felony statute when a specific misdemeanor statute describes a similar offense does not violate constitutional rights to due process and equal protection where statutes require different elements of proof.

6. Where there is no clear legislative intent to limit prosecution to a specific criminal statute, prosecution under general statute is not precluded.

7. Ordinarily, a reviewing court will not consider issues not raised before the trial court; however, they may be considered and determined where defendant's substantial rights may have been affected.

8. Where the parties agreed the first indictment was void, no jury was impanelled, and the judge heard no evidence on the charge, jeopardy did not attach upon dismissal of the first indictment.

9. A compulsion to produce handwriting exemplars does not violate the Fourth Amendment prohibition against unreasonable searches and seizures.

10. Compulsion to produce handwriting exemplars does not transgress the self-incrimination clause of the Fifth Amendment if the writing is not of a communicative character.

11. A letter correctly addressed and properly mailed is presumed to have been received.

Raymond E. Gurczynski and John W. K. Chang, Deputy Public Defenders, Honolulu, on the brief for defendant-appellant.

Howard J. Gravelle, Jr., Deputy Atty. Gen., Honolulu, on the brief for State of Hawaii.

Before RICHARDSON, C. J., and OGATA, MENOR, LUM and NAKAMURA, JJ.

PER CURIAM.

Defendant-Appellant Barbara Jean Martin appeals from a judgment and sentence entered upon her conviction, after a jury-waived trial, of a violation of HRS § 708-831(1)(b), Theft in the First Degree.

Defendant was initially indicted in 1977 under the foregoing statute for having wrongfully obtained public assistance monies exceeding $200 from the State of Hawaii by deception as to her marital status and the employment earnings of herself and her husband from September 1, 1972 through January 30, 1976. This indictment was dismissed on defendant's motion.

The State subsequently obtained a second indictment that covered the period from January 1, 1973 through January 30, 1976, pursuant to the same statute, containing substantially the same charges ¹ but with an additional allegation that defendant also received social security payments. Defendant was convicted under this indictment.

Prior to and during trial, defendant moved to dismiss the second indictment, asserting she should have been charged with a violation of the misdemeanor statute specifically relating to welfare fraud, HRS § 346-34, rather than the more general felony statute covering theft. The motions were denied and the circuit court found her guilty as charged.

Defendant contends the court erred in several respects, including the denial of the foregoing motions. Finding no error, we affirm the judgment and sentence.

I.

Defendant first applied for public assistance under the Aid for Families with Dependent Children (AFDC) program in January of 1970. She was then a divorced mother of two children. Another child was born to her in June of 1970, and defendant married that child's father in September of 1971. Assistance payments were made to her by the State from 1970 through January, 1976. As a condition for the continued receipt of payments after her initial application, defendant was required to file semi-annual statements "of facts supporting continued eligibility for aid to families" with children. On each statement ² she indicated the father of her youngest child was absent from the home, she had no income, and she was not receiving any social security payments. Defendant also neglected to disclose her marriage at any relevant time to the Department of Social Services and Housing, although obligated to do so. ³

The following issues are raised for this court's consideration:

(1) Whether the State was required to charge defendant under laws existing before January 1, 1973, the effective date of the Hawaii Penal Code, for conduct which commenced prior to that date but continued through 1975 and into 1976;

(2) Whether the State was required to charge her under the specific welfare fraud statute, HRS § 346-34, rather than the general theft statute, HRS § 708-831(1)(b);

(3) Whether the dismissal of the first indictment caused jeopardy to attach, barring her prosecution under a second indictment on substantially similar charges;

(4) Whether the compulsion applied to secure handwriting exemplars from her violated her constitutional rights; and

(5) Whether the State met its burden of proving that she received social security payments.

II.

A. Prosecution For Continuing Offense

Defendant maintains that the offense she was convicted of was a continuing crime with elements thereof occurring before January 1, 1973, the effective date of HRS § 708-831(1)(b). She therefore argues she should have been charged under prior existing law in accord with HRS § 701-101(1). ⁴ We agree the offense was a continuing one but disagree with the contention that she could only have been prosecuted under the prior statute.

In People v. Howes, 99 Cal.App.2d 808, 222 P.2d 969 (1950), a California court held the applicable test in determining whether there is a continuing crime "is whether the evidence discloses one general intent or discloses separate and distinct intents." It found if "there is but one intention, one general impulse, and one plan, even though there is a series of transactions, there is but one offense." Id. at 818-19, 222 P.2d at 976; People v. Saling, 48 Cal.App.3d 724, 122 Cal.Rptr. 1 (1975); People v. Neder, 16 Cal.App.3d 846, 94 Cal.Rptr. 364 (1971).

A similar rationale was applied in Dawson v. Superior Court, 138 Cal.App.2d 685, 292 P.2d 574 (1956). There, the defendant received welfare payments to which she was not entitled by failing to disclose her employment status. She filed renewal applications and continued to receive payments although employed and receiving income. She was charged with two counts of grand theft rather than several petty thefts. The court held the charges proper, stating that "where a person intends by his false representations to initiate an act which will cause him to receive illegally various sums of money, it is far more reasonable to consider the whole plan rather than its component parts." Id. at 689, 292 P.2d at 577. Accord, People v. Bailey, 55 Cal.2d 514, 360 P.2d 39, 11 Cal.Rptr. 543 (1961). Contra, People v. Lofton, 73 Misc.2d 285, 340 N.Y.S.2d 984 (1973).

We have had no prior occasion to determine what constitutes a continuous offense and are persuaded that the California rule enunciated in Howes, supra, provides logical and appropriate guidelines for such a determination. Applying this analysis, we find but one intention and plan here and thus conclude there was one offense. We do not view each filing by defendant of a statement of facts supporting continued eligibility as necessarily constituting a new offense, since all statements were identical, representing that defendant was unmarried, unemployed, and not receiving social security benefits.

Having concluded that defendant committed a continuous offense, we must still determine whether the State's election to prosecute her under an indictment covering only a part of the period of that offense was valid.

In People v. Norwood, 312 Mich. 266, 20 N.W.2d 185 (1945), defendants were initially indicted for a conspiracy extending from June 1, 1933 to May 29, 1940. The indictment was twice amended, the final indictment charging a conspiracy from April 25 to May 29, 1940. Defendants claimed the splitting of a continuous offense had placed them in jeopardy. The court ruled that "a conspiracy to violate existing laws is usually a continuing offense, extending over some period of time, and the prosecution may charge and prove the offense in any part of such period." Id. at 275, 20 N.W.2d at 188.

Although it can be argued that the continuing offenses of theft and conspiracy are distinguishable, "we see no greater legal obstacle to an indictment based on the continuing scheme of one person than on the continuing conspiracy of more than one." Bramblett v. United States, 231 F.2d 489, 491 (D.C. Cir. 1956) (discussing application of statute of limitations to continuing offenses).

The validity of a charge covering only part of the time span of a continuing crime is also inferentially supported by decisions holding that a conviction or acquittal of a continuous offense bars another prosecution for the same offense committed in a period overlapping any portion of the duration of the first. See Short v. United States, 91 F.2d 614 (4th Cir. 1937); Bustamante v. People, 136 Colo. 362, 317 P.2d 885 (1957). A logical conclusion may be drawn therefrom that prosecutions premised on conduct extending over less than the whole period of a continuing offense are not precluded, assuming, of course, that all necessary elements can be proved for the shorter period.

We find the State acted within legal bounds in...