State v. Shaw

• Decision Date: 15 May 2020
• Docket Number: NO. CAAP-18-0000599,CAAP-18-0000599
• Citation: 462 P.3d 1109 (Table)
• Parties: STATE of Hawai‘i, Plaintiff-Appellee, v. Susan E. SHAW, Defendant-Appellant
• Court: Hawaii Court of Appeals

462 P.3d 1109 (Table)

STATE of Hawai‘i, Plaintiff-Appellee,

v.Susan E. SHAW, Defendant-Appellant

NO. CAAP-18-0000599

Intermediate Court of Appeals of Hawai‘i.

May 15, 2020

On the briefs:

Chad Kumagai, Deputy Prosecuting Attorney, City and County of Honolulu, for Plaintiff-Appellee.

Taryn R. Tomasa, Deputy Public Defender, for Defendant-Appellant.

(By: Ginoza, Chief Judge, Chan and Wadsworth, JJ.)

MEMORANDUM OPINION

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 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 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 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 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 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 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

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