State v. Shaw

• Citation: 150 Hawai‘i 56,497 P.3d 71
• Decision Date: 01 October 2021
• Docket Number: SCWC-18-0000599
• Parties: STATE of Hawai‘i, Respondent/Plaintiff-Appellee, v. Susan E. SHAW, Petitioner/Defendant-Appellant.
• Court: Hawaii Supreme Court

150 Hawai‘i 56

497 P.3d 71

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

v.Susan E. SHAW, Petitioner/Defendant-Appellant.

SCWC-18-0000599

Supreme Court of Hawai‘i.

OCTOBER 1, 2021

Taryn R. Tomasa for petitioner/defendant-appellant.

Chad M. Kumagai for respondent/plaintiff-appellee.

RECKTENWALD, C.J., NAKAYAMA, McKENNA, AND WILSON, JJ., AND INTERMEDIATE COURT OF APPEALS JUDGE NAKASONE, ASSIGNED BY REASON OF VACANCY

OPINION OF THE COURT BY WILSON, J.

I. INTRODUCTION

This case arises from Petitioner/Defendant-Appellant Susan E. Shaw's ("Shaw") five-year prison sentence and conviction for Computer Fraud in the Third Degree ("Computer Fraud 3") and Fraudulent Use of a Credit Card ("Credit Card Fraud"). Shaw appealed her Judgment of Conviction and Sentence to the Intermediate Court of Appeals ("ICA"). The ICA vacated the Circuit Court of the First Circuit's¹ ("circuit court") Judgment of Conviction and Sentence and remanded the case to the circuit court for further proceedings.

Shaw raises four primary points of error and alleges that the ICA erred: (1) when it held that the State of Hawai‘i (the "State") need not allege that Shaw acted pursuant to a scheme or course of conduct for Computer Fraud 3 in the indictment; (2) when it held that the circuit court (a) did not err in instructing the jury on the definition of "inference" and (b) did not err in instructing the jury on the elements of Computer Fraud 3; (3) when it held that the circuit court did not err in denying her Motion to Dismiss with Prejudice; and (4) when it failed to address the issues related to (a) the sufficiency of evidence, (b) the admission of unsworn hearsay evidence, and (c) the numerous prejudicial evidentiary errors.

We hold that the ICA did not err when it held that aggregation of multiple transactions under Computer Fraud 3 is permissible. We further hold that the indictment was defective with respect to Count I, Computer Fraud 3, and that the denial of Shaw's Motion to Dismiss the Indictment was error. Accordingly, we vacate the circuit court's order denying Shaw's Motion to Dismiss the Indictment for Count I, and remand with instructions to dismiss Count I without prejudice. Because the indictment for Count I, Computer Fraud 3 is dismissed without prejudice, we do not address Shaw's other points of error.

II. BACKGROUND

The charges against Shaw arise from allegations that between January 16, 2017, through and including May 18, 2017, Shaw falsely inflated customer tips for 105 customers, totaling $717.35, at the restaurant where she worked as a server. Shaw was charged with one count of Computer Fraud 3, in violation of Hawai‘i Revised Statutes ("HRS") § 708-891.6 (2014), and one count of Credit Card Fraud, in violation of HRS § 708-8100(1)(c) (2014).² After a jury trial, Shaw was convicted on both counts.

Prior to the jury trial, Shaw filed a Motion to Dismiss with Prejudice on the basis that the State failed to adduce sufficient evidence to establish probable cause for either of the two counts at the grand jury proceedings because the State excluded elements of the offense. Additionally, Shaw contended 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. Shaw argued that if HRS § 708-801(6) allows aggregation of theft amounts from a single victim or multiple victims, the State failed to adduce evidence that Shaw acted pursuant to a single scheme or course of conduct required for aggregation. The circuit court denied Shaw's motion, finding that "overwhelming evidence" supported the indictment.

On July 30, 2018, Shaw appealed to the ICA. Relevant to this appeal, Shaw argued that the indictment was fatally defective for failing to allege that Shaw acted pursuant to a scheme or continuing course of conduct³ and that the circuit court erred in denying Shaw's Motion to Dismiss with Prejudice because the State failed to adduce sufficient evidence to establish probable cause that Shaw used a computer to steal more than $250.00 from a single victim. See HRS § 708-891.6 ("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."); HRS § 708-832(1)(a) (2016) ("A person commits the offense of theft in the third degree if the person commits theft ... [o]f property or services the value of which exceeds $250[.]").

The ICA vacated the circuit court's Judgment of Conviction and Sentence, vacated Shaw's conviction for Credit Card Fraud under Count II, and remanded the case for a new trial on Count I, Computer Fraud 3. The ICA concluded that the indictment for Count I was legally sufficient, and that Shaw failed to show, under Motta/ Wells,⁴ Count I could not be construed to charge Computer Fraud 3. The ICA also concluded that Shaw failed to show that she suffered prejudice from the State's failure to allege a scheme or course of conduct in Count I. Additionally, the ICA held that the State was not barred from aggregating multiple alleged instances of theft in charging Shaw with Computer Fraud 3:

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 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.

The ICA further held that the indictment as a whole charged Shaw with Computer Fraud 3 under a continuing course of conduct theory because both counts referred to the same four-month time period when the alleged crimes occurred.

For the Credit Card Fraud charge, the ICA held that the circuit court erred when it failed to dismiss Count II for lack of sufficient evidence to establish probable cause because the plain language of HRS § 708-8100(2) did 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. In light of this holding, the ICA held that the circuit court erred when it failed to dismiss Count II.⁵ For Count I, Computer Fraud 3, the ICA held that Shaw's challenge for lack of probable cause was rendered moot when she was subsequently convicted at trial, and held that there were no "unusual circumstances" in this case to warrant a review of probable cause. But, the ICA held that Shaw's conviction for Computer Fraud 3 must be vacated and remanded for a new trial because 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.

Shaw argues before this court that the ICA erred when it held that the State need not allege scheme in the indictment and that the circuit court did not err in denying Shaw's Motion to Dismiss with Prejudice.

III. STANDARDS OF REVIEW

A. Statutory Interpretation

The interpretation of a statute is a question of law reviewable de novo. State v. Arceo, 84 Hawai‘i 1, 10, 928 P.2d 843, 852 (1996). We follow several established rules of statutory construction:

First, our foremost obligation is to ascertain and give effect to the intention of the legislature, which is obtained primarily from the language contained in the statute[s] themselves. Second, [l]aws in pari materia, or upon the same subject matter, shall be construed with reference to each other. What is clear in one statute may be called in aid to explain what is doubtful in another. And, third, [t]he legislature is presumed not to intend an absurd result, and legislation will be construed to avoid, if possible, inconsistency, contradiction[,] and illogicality.

Id. at 19, 928 P.2d at 861 (alterations in original) (citations and quotations 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) ).

IV. DISCUSSION

A. The ICA did not err when it held that multiple transactions can be aggregated pursuant to HRS § 708-801(6) for Computer Fraud 3.

Shaw contends that aggregation of multiple transactions pursuant to HRS § 708-801(6) is impermissible for proving Computer Fraud 3. The ICA was correct in its determination that aggregation of multiple transactions pursuant to HRS § 708-801(6) is permissible for Computer Fraud 3. However, we respectfully disagree with the ICA's reasoning.

The ICA concluded that the theft statute supports aggregation of multiple transactions for Computer Fraud 3. It is true that this court has previously held that theft may be charged under a continuing course of conduct theory:

The language of the theft statute indicates that theft may be charged on a continuing conduct theory. The theft statute provides that a person commits theft if the person "obtains, or exerts control over, the property of another by deception with intent to deprive the other of the property." HRS § 708-830(2) (2014). Similarly, a person commits theft in the second degree "if the

...