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Electronically Filed Supreme Court SCWC-XX-XXXXXXX 01-OCT-2021 08:50 AM Dkt. 17 OP
IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
---o0o--- _____________________________________________________________
STATE OF HAWAIʻI, Respondent/Plaintiff-Appellee,
vs.
SUSAN E. SHAW, Petitioner/Defendant-Appellant. ________________________________________________________________
SCWC-XX-XXXXXXX
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CAAP-XX-XXXXXXX; 1CPC-XX-XXXXXXX)
OCTOBER 1, 2021
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 *** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
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 Hawaiʻi
(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.
1 The Honorable Faʻauuga L. Toʻotoʻo presided.
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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
Hawaiʻi 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.
2 The August 15, 2017 indictment states:
The Grand Jury charges: 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 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(a)(a) and 708-830(1) of the Hawaii Revised Statutes. (HPD Report Number 17189819-002). Count I related to the access and use of a computer, to with a “point of sale computer terminal”, with
(continued . . .)
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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
intent commit [sic] 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 no 17-189819-003). Count II related 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 specific herein, a period of less than six months, and the defendant di, in fact, so obtain money valued in excess of $300.00
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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[.]”).
3 The indictment in Count I read 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.
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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.
4 An appellate court will “not reverse a conviction based upon a defective indictment unless the defendant can show prejudice or that the indictment cannot within reason be construed to charge a crime.” State v. Motta, 66 Haw. 89, 91, 657 P.2d 1019, 1020 (1983).
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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
5 The ICA’s dismissal of Count II, Credit Card Fraud, was not appealed to this court and will not be addressed in this opinion’s discussion.
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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 Hawaiʻi
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.
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Id. (quoting State v. Ganal, 81 Hawaiʻi 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 person commits theft . . . [o]f property or services the value of which exceeds $300.” HRS § 708-831(1)(b).
Here, the Legislature’s decision to define theft as obtaining or exerting control over “property or services,” see HRS §§ 708-830.5(1)(a), 708-831(1)(b), 708-832(1)(a), 708-833(1), and not “a piece of property or a service,” indicates that the Legislature did not necessarily intend that theft be charged individually. Furthermore, HRS § 708-801(6) provides that “[a]mounts involved in thefts committed pursuant to one scheme or course of conduct, whether the property taken be of one person or several persons, may be aggregated in determining the class or grade of the offense.” This indicates that the Legislature
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explicitly considered that theft could be charged on a continuing course of conduct theory.
State v. Yokota, 143 Hawai‘i 200, 205-06, 426 P.3d 424, 429-30
(2018).
However, that Computer Fraud 3 is “predicated” on
theft in the third or fourth degree does not answer the question
of whether Computer Fraud 3 can be charged as a continuing
course of conduct. This is because Computer Fraud requires a
specific intent to commit theft in the third or fourth degree.
The continuing offense doctrine asks “whether the individual
acts are prohibited, or the course of action which they
constitute.” Blockburger v. United States, 284 U.S. 299, 302
(1932) (emphasis added). The continuous offense doctrine
therefore turns on whether the legislature envisioned that the
conduct of the offense could constitute a continuous course of
action. Yokota, 143 Hawaiʻi at 205, 426 P.3d at 429 (“[T]he test
to determine whether a crime may be charged on a continuous
conduct theory is whether the language, structure, and purpose
of the statute reveals a legislative intent to criminalize
continuing conduct.” (quoting State v. Decoite, 132 Hawaiʻi 436,
438, 323 P.3d 80, 81 (2014))). Whether the proscribed conduct
“is statutorily defined as an uninterrupted and continuing
course of conduct, or manifests a plain legislative purpose to
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be treated as such, or both” is critical to the continuing
offense doctrine. Arceo, 84 Hawaiʻi at 19, 928 P.2d at 861.
If the statute “comprehend[s] acts that essentially
are of a transitory nature or brief duration,” then the
legislature likely did not contemplate the crime to be
continuing; but if the act proscribed by the statute “describes
an ongoing course of conduct,” that “connotes a legislative
design to make an aspect of [the crime] continuing[.]” State v.
Temple, 65 Haw. 261, 267, 650 P.2d 1358, 1362 (1982). Here,
Computer Fraud 3 is defined as follows: “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 § 708-891.6 (emphasis added).
“‘Access’ means to gain entry to, instruct, communicate with,
store data in, retrieve data from, or otherwise make use of any
resources of a computer, computer system, or computer network.”
HRS § 708-890. At least some of these acts “connote[] a
legislative design to make an aspect of [Computer Fraud 3]
continuing[.]” Temple, 65 Haw. at 267, 650 P.2d at 1362. At
the least, “communicat[ing] with,” “stor[ing] data in,”
“mak[ing] use of a computer, computer system, or computer
network” reflect acts that are not “transitory . . . or brief,”
id., but instead “involve ongoing processes[.]” Decoite, 132
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Hawaiʻi at 439, 323 P.3d at 83. Cf. State v. Martin, 62 Haw.
364, 366, 616 P.2d 193, 195–96 (1980) (finding continuous theft
on the state when defendant filed fraudulent public assistance
forms); State v. Stenger, 122 Hawai‘i 271, 279, 226 P.3d 441, 449
(2010) (finding continuous theft on the state when defendant
continued to receive public assistance when no longer needed).
Thus, the ICA correctly held that aggregation of multiple
transactions is permissible for Computer Fraud 3.
B. The ICA erred when it held that the State need not allege scheme in the charging document for Computer Fraud 3 under the Motta/Wells rule.
The ICA incorrectly held that under the Motta/Wells
rule the Count I charge for Computer Fraud 3 was legally
sufficient because it was not necessary to include in the
indictment language establishing that Shaw acted pursuant to a
scheme or course of conduct. Because Count I failed to include
the essential attendant circumstances element of scheme or
course of conduct, it cannot be reasonably construed to charge a
crime. As discussed below, even if the language in the
indictment tracks the statutory offense language, that alone
does not render a charge legally sufficient. When the
indictment is read as a whole, Count I fails to charge a crime.
Under the Motta/Wells rule, if an objection to a
deficient indictment is raised for the first time on appeal, the
indictment must be liberally construed. Motta, 66 Haw. at 90,
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657 P.2d at 1019–20; State v. Wells, 78 Hawai‘i 373, 381, 894
P.2d 70, 78 (1995). An appellate court will “not reverse a
conviction based upon a defective indictment unless the
defendant can show prejudice or that the indictment cannot
within reason be construed to charge a crime.” Motta, 66 Haw.
at 91, 657 P.2d at 1020. If an element of an offense is missing
or an element in the charge does not “comport with its statutory
definition,” the charge cannot be reasonably construed to charge
a crime. State v. Baker, 146 Hawai‘i 299, 308, 463 P.3d 956, 965
(2020), as corrected (May 20, 2020) (citing State v. Pacquing,
139 Hawai‘i 302, 308, 389 P.3d 897, 903 (2016); State v. Wheeler,
121 Hawai‘i 383, 394, 219 P.3d 1173, 1181 (2009)). However, “one
‘way in which an otherwise deficient count can be reasonably
construed to charge a crime is by examination of the charge as a
whole,’” State v. Tominiko, 126 Hawai‘i 68, 76, 266 P.3d 1122,
1130 (2011) (quoting State v. Elliott, 77 Hawai‘i 309, 312, 884
P.2d 372, 375 (1994)), which allows “two counts [to] be read
together,” id. This court “employ[s] practical considerations
and common sense” when interpreting the indictment as a whole.
State v. Sprattling, 99 Hawai‘i 312, 319, 55 P.3d 276, 283
(2002). Additionally, this court has held that, in some cases,
when the language of the charge tracked the statutory definition
of the offense and all of the elements as defined in the statute
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are alleged in the indictment, the indictment was not defective.
See State v. Treat, 67 Haw. 119, 120, 680 P.2d 250, 251 (1984).
Here, the Motta/Wells liberal construction rule
applies because Shaw challenged the sufficiency of the
indictment for the first time on appeal. Based on the
Motta/Wells liberal construction rule, the ICA held that the
Computer Fraud 3 charge was legally sufficient and held that the
State was not required to “expressly allege in the Indictment
that Shaw engaged in a scheme or course of conduct” because the
Computer Fraud 3 charge “tracked” the language of the statutory
offense and the predicate theft offense, and all of the
statutory elements were included in the indictment.
1. Because the indictment did not allege that Shaw intended to commit theft in the fourth degree, and no transaction was greater than $250.00, the State was required to allege scheme or course of conduct in the indictment.
The State alleged only that Shaw “did knowingly access
a computer . . . with the intent to commit the offense of theft
in the third degree, [and] thereby committed the offense” of
Computer Fraud 3. (Emphasis added.) Because the indictment did
not allege Shaw knowingly accessed a computer, computer system,
or computer network with the intent to commit the offense of
theft in the fourth degree, and since none of the individual
transactions were greater than $250.00, the State was required
to include in the indictment language that Shaw possessed the
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intent to commit theft in the third degree through a continuing
course of conduct over the four-month period. The State failed
to do so.
Shaw correctly contends that even under the
Motta/Wells liberal construction rule, the indictment was
insufficient. The indictment failed to charge an essential
attendant circumstances element. See HRS § 702-205 (“The
elements of an offense are such (1) conduct, (2) attendant
circumstances, and (3) results of conduct[.]”); State v. Bovee,
139 Hawaiʻi 530, 538, 394 P.3d 760, 768 (2017). In this case,
the State aggregated the theft amounts from separate victims to
reach the $250.00 threshold for Theft in the Third Degree
necessary to prove Computer Fraud 3. The State’s prosecution of
Shaw for Computer Fraud 3 necessarily required proof of multiple
thefts committed pursuant to a common scheme or course of
conduct because none of the individual thefts met the $250.00
statutory threshold. Charging this crime under an aggregation
theory is predicated on Shaw having committed the thefts
pursuant to a scheme or course of conduct. Thus, the indictment
must allege that the defendant acted pursuant to a scheme or
course of conduct when Computer Fraud 3 is charged based on an
aggregation theory because scheme or course of conduct is an
attendant circumstances element that the State must prove.
Because the indictment did not include this element of scheme or
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course of conduct, required for Computer Fraud 3 based upon an
aggregation theory, the indictment failed to charge a crime.
2. The fact that Count I, Computer Fraud 3, tracked the statutory offense language does not mean it was legally sufficient.
The ICA was incorrect when it held that the charge was
sufficient merely because the charge “tracked” the language of
the statutory offense and the predicate theft offense, and all
the statutory elements were included in the indictment. This
court has stated that a charge can be insufficient even when the
charge tracks the language of the statute if it fails to
sufficiently describe the crime:
In some cases, however, a charge tracking the language of the statute defining the offense nevertheless violates an accused’s due process rights.
This is so because although “some statutes in our criminal laws so clearly and specifically define[] the offense that nothing more is required in [a charge] than the adoption of language of the statute, other statutes fail to sufficiently describe the crime and [a charge] couched merely in the language of such a statute would violate due process.”
State v. Nesmith, 127 Hawai‘i 48, 53, 276 P.3d 617, 622 (2012)
(emphases added) (quoting State v. Israel, 78 Hawai‘i 66, 73, 890
P.2d 303, 310 (1995)).
The indictment in the instant case “fail[s] to
sufficiently describe the crime” and, thus, the charge “couched
merely in the [statutory] language . . . violate[s] due
process.” See id. As discussed above, to charge Shaw with
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Computer Fraud 3 based on an aggregation theory, the State must
show that Shaw acted pursuant to a scheme or course of conduct.
If one of the individual transactions met the $250.00 statutory
threshold, scheme or course of conduct need not be proved, and
indictment language that simply tracks the language of the
statute would be sufficient. But here, the individual
transactions do not meet the statutory threshold, so the State
must prove scheme or course of conduct. Thus, when an
aggregation theory is used, a charge that simply tracks the
language of the statute can violate due process even under the
Motta/Wells liberal construction rule because scheme or course
of conduct is necessary to prove Computer Fraud 3 based upon an
aggregation theory.
3. Count I is legally insufficient even if the indictment is read “as a whole.”
Even if Count I failed to charge a crime, the ICA
concluded that “it is clear from reading the Indictment as a
whole that the State charged Shaw with Computer Fraud 3 on a
continuing course of conduct theory.” Relying on Tominiko6 and
reading the two charges together, the ICA reasoned that, Charge
6 In Tominiko, the defendant was charged with operating a vehicle under the influence of an intoxicant (“OVUII”). Tominiko, 126 Hawaiʻi at 71, 266 P.3d at 1125. The language charging OVUII was missing the element that the conduct occurred on a public roadway. Id. at 76, 266 P.3d at 1130. The supreme court read the indictment “as a whole” and held that the OVUII charge was not deficient because a separate count contained the necessary allegation and both counts referred to operating a motor vehicle on the same day in Honolulu, Hawaiʻi. Id.
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I was sufficient because the two charges included the same time
period and Charge II’s plural language indicated multiple
victims and instances of theft.
A key distinction between Tominiko and this case is
that, in Tominiko, the other count explicitly included the
essential element. Tominiko, 126 Hawai‘i at 76, 266 P.3d at 1130
(holding that a charge that was missing the essential public
road element was not insufficient when read “as a whole” with
another charge that did include the essential public road
element). Here, Charge II did not specifically allege scheme or
course of conduct, but instead alluded to a scheme or course of
conduct with the use of plural language, alleging that Shaw “did
use credit card numbers without the consent of the cardholders
for 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) . . . .” Thus,
Tominiko is not analogous because in Tominiko the other count
explicitly included the required element, whereas, here, the
other count implied scheme or course of conduct, without
explicitly identifying it.
Analogizing to Tominiko, the ICA pointed to the same
time period in both counts to support its conclusion that “both
charges are based on the same underlying conduct.” Once again,
Tominiko is not analogous. In Tominiko, this court pointed to
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the facts that both charges referred to operating a motor
vehicle in Honolulu, Hawaiʻi on the same day to reach its
conclusion that “it can be reasonably inferred that they refer
to the same incident.” Tominiko, 126 Hawaiʻi at 76, 266 P.3d at
1130. In this case, the ICA relied exclusively on the fact that
the charges referenced the same location, Honolulu, Hawaiʻi, and
the same four-month time period. The inference that the two
counts refer to the same incidences cannot be “reasonably
inferred” as in Tominiko. Four months is a much longer time
period than one day, and the two charges could have referenced
different activities during those four months. In Tominiko, the
two charges were related to the same singular incident involving
a “motor vehicle” that occured on the same day, whereas, here,
there are multiple instances of theft, making it less apparent
that the instances of theft by computer fraud referred to in
Count I are the same instances referred to by Count II for
Credit Card Fraud.
Notably, in Tominiko, both charges shared a common
element: operating a motor vehicle.7 Id. at 70, 266 P.3d at
1124. And the court pointed to this commonality when reading
the indictment as a whole. Id. at 76, 266 P.3d at 1130. In
7 In Tominiko, the defendant was charged with OVUII and Driving Without Motor Vehicle Insurance. 126 Hawaiʻi at 70, 266 P.3d at 1124.
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contrast, an individual can commit Computer Fraud 3 without
using credit cards and can commit Credit Card Fraud without
using a computer. Therefore, the ICA’s reliance on Tominiko is
unfounded. The similarities between Count I and Count II are
insufficient to support the argument that the two counts refer
to the same underlying conduct. Therefore, the two counts
cannot be “read as a whole,” and the ICA erred when it concluded
that Count I, Computer Fraud 3, could be reasonably construed to
charge a crime.
Consequently, we conclude that Count I, Computer Fraud
3 was insufficient. See Wheeler, 121 Hawaiʻi at 394, 219 P.3d at
1181 (holding charge was insufficient when it failed to allege
all of the essential elements of the offense charged).
V. CONCLUSION
For the foregoing reasons, we hold that when Computer
Fraud 3 is charged under an aggregation theory and none of the
individual instances of theft meet the $250.00 statutory
threshold, the State must allege the defendant acted pursuant to
a scheme or course of conduct in the charging document.
Accordingly, we affirm in part, and vacate in part, the ICA’s
June 19, 2020 judgment on appeal. Because Count I, Computer
Fraud 3, did not contain an essential attendant circumstances
element required for the offense charged, we vacate the circuit
court’s order denying Shaw’s Motion to Dismiss the Indictment
20 *** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
for Count I, remand with instructions to dismiss Count I without
prejudice, and remand for further proceedings consistent with
this opinion.
Taryn R. Tomasa for /s/ Mark E. Recktenwald petitioner/defendant-appellant /s/ Paula A. Nakayama Chad M. Kumagai for /s/ Sabrina S. McKenna respondent/plaintiff-appellee /s/ Michael D. Wilson
/s/ Karen T. Nakasone