State v. Sneed

• Decision Date: 14 May 1986
• Docket Number: No. 10597,10597
• Parties: STATE of Hawaii, Plaintiff-Appellee, v. Terry Lynn SNEED, Defendant-Appellant.
• Court: Hawaii Supreme Court

Page 280

718 P.2d 280

68 Haw. 463

STATE of Hawaii, Plaintiff-Appellee, v. Terry Lynn SNEED, Defendant-Appellant.

No. 10597.

Supreme Court of Hawai'i.

May 14, 1986.

Syllabus by the Court

The rule allowing the trial court to instruct the jury on every defense or theory of defense having any support in the evidence does not pertain to jury instructions on lesser included offenses.

David K. Kuwahara (Richard W. Pollack, with him on briefs), Public Defenders, Honolulu, for defendant-appellant.

Artemio C. Baxa (Diane L. Ho, with him on brief), Deputy Pros. Attys., Wailuku, for plaintiff-appellee.

Before LUM, C.J., and NAKAMURA, PADGETT, HAYASHI and WAKATSUKI, JJ.

WAKATSUKI, Justice.

Defendant-appellant Terry Lynn Sneed was found guilty of theft in the first degree in violation of Hawaii Revised Statutes (HRS) § 708-831. Defendant appeals on two grounds: (1) the trial court committed plain error by failing to, sua sponte, instruct the jury as to lesser included offenses of theft; and (2) the trial court erred in refusing his requested jury instruction on circumstantial evidence. We affirm.

I.

Defendant contends that the trial court committed plain error when it failed to instruct the jury on lesser included offenses of theft in the first degree even though he did not request such an instruction. In other words, the trial court was duty bound to give an instruction on lesser included offenses of theft. At trial, defendant's defense was a flat denial of committing the theft of any beer. He now contends that the evidence presented at trial indicates not only a possible first degree theft but also a possible second or third degree theft, and therefore, the trial court was duty bound to instruct the jury on the lesser included offenses. The basis for defendant's contention is that the evidence adduced at trial was conflicting, and that defendant could have had anywhere from over thirty (30) cases, or over ten (10) cases, or about four and a half (4 1/2) cases, or four (4) cases of beer in his truck on the night of August 3, 1984, in addition to five or six cases of empty beer cans. Thus, there was doubt as to whether the amount of beer defendant was accused of stealing exceeded $200.00, and whether the cases of beer seen in defendant's truck were nothing more than cases of empty beer cans.

II.

The only defense advanced by the defendant to the charge of theft in the first degree was a flat denial of committing the theft as charged. There is nothing in evidence to support any other defense or theories of defense to the charge, nor did defendant request any instructions on any other defense or theories of defense which may be supported by some evidence. Defendant's reliance on State v. O'Daniel, 62 Haw. 518, 616 P.2d 1383 (1980) and State v. Warner, 58 Haw. 492, 573 P.2d 959 (1977) in support of his contention, therefore, is misplaced. The rule allowing the trial court to instruct the jury on every defense or theory of defense having any support in the evidence cannot be relied on by the defendant because a lesser included offense is not a defense or theory of defense to the charge of theft in the first degree. ¹ See HRS § 701-109(1)(a) & (4).

What is applicable here is HRS § 701-109(5). ² The issue then is whether there was a rational basis in the evidence for a verdict acquitting the defendant of the offense charged and convicting him of the included offense. We conclude that there was none.

HRS § 701-109(5) is the codification of the doctrine of the lesser included offense. "The doctrine evolved historically as an aid to the prosecution when there was a failure of proof of all the elements necessary for a conviction of the accusation." Barnett, The Lesser-Included Offense Doctrine: A Present Day Analysis for Practitioners, 5 Conn.L.Rev. 255, 255 (1972) (footnote omitted). "From a defendant's point of view, it provides the jury with an alternative to a guilty verdict on the greater offense." Note, The Lesser Included Offense Doctrine in Pennsylvania: Uncertainty in the Courts, 84 Dick.L.Rev. 125, 126 (1979) (footnote omitted).

The direct evidence adduced at trial was substantial and convincing. Glenn Vierra testified that he saw more than ten (10) cases of beer in defendant's pickup truck on the night of August 3rd, and that defendant told William Thomas the beer was from a container at work. Thomas testified that on the same...