HSC Expands Trial Court's Duty to Instruct Juries on Potential Defenses (or has it?)

State v. Stenger (HSC March 4, 2010)

Background. Stenger applied for financial aid, medical coverage, and food stamps with the Dept. of Human Services. Stenger reported her income and financial situation to DHS and was told that she must report changes in her finances and her living situation within ten days of the change. From July 2002 to May 2003, Stenger received public assistance. DHS investigated and determined that Stenger was not reporting all of her income. DHS concluded that she had been overpaid around $23,000 in public assistance. Stenger was indicted with one count of theft by deception in the first degree (HRS §§ 708-830(2) and 708-830.5(1)(a)).

At trial Stenger requested a unanimity instruction and a claim of right instruction because she believed she was entitled to the benefits obtained. The instructions were denied. The circuit court instructed the jury about Theft in the First Degree with Theft in the 2d as an included offense. The jury found Stenger guilty of Theft in the 1st Degree. On appeal, Stenger argued, inter alia, that the circuit court failed to instruct the jury about a mistake of fact defense even though it was never requested.

Mistake-of-Fact Instruction Should've been Given Because Evidence Supported it, "no Matter how weak." It is a defense that the accused "engaged in the prohibited conduct under ignorance or mistake of fact if . . . the ignorance or mistake negatives the state of mind required to establish an element of the offense[.]" HRS § 702-218(1). This is not an affirmative defense so once the defendant shows "credible evidence of facts constituting the defense," the burden shifts to the State to disprove the defense beyond a reasonable doubt. State v. Locquiao, 100 Hawai'i 195, 206, 58 P.3d 1242, 1253 (2002). In Locquiao, the HSC held that when the defendant adduced evidence at trial supporting an instruction, the trial court must separately instruct the jury on the defense "at the defendant's request[.]" Id. at 208, 58 P.3d at 1255.

According to the HSC, defendants are entitled to jury instructions "no matter how weak" the evidence may be:

[A] defendant is entitled to an instruction on every defense or theory of defense having any support in the evidence, provided such evidence would support the consideration of that issue by the jury, no matter how weak, inconclusive, or unsatisfactory the evidence may be. Moreover, it is the trial court's duty to insure that the jury instructions cogently explain the law applicable to the facts of the case.

Id. at 205-06, 58 P.3d at 1252-53.

Unlike Locquiao, Stenger never requested the mistake-of-fact instruction. Nonetheless, the HSC explained that "once instructional error is demonstrated, we will vacate, without regard to whether timely objection was made, if there is a reasonable possibility that the error contributed to the defendant's conviction, i.e., that the erroneous jury instruction was not harmless beyond a reasonable doubt." State v. Nichols, 111 Hawai'i 327, 337, 141 P.3d 974, 984 (2006).

"No Matter how Weak . . . " According to the HSC, it had to determine (1) whether Stenger presented any evidence "no matter how weak" that would have supported a mistake-of-fact defense; and (2), if so, whether the failure to instruct on mistake of fact was harmless beyond a reasonable doubt. The HSC held that Stenger adduced credible evidence demonstrating a mistake-of-fact defense and was thus entitled to a mistake-of-fact instruction. The HSC also held that the failure to instruct was not harmless. Just because "the court provided an instruction as to the requisite state of mind for theft . . . does not render the failure to instruct on mistake of fact harmless."

Claim of Right Requires Belief of Pre-Existing Ownership of Specific Property. "It is a defense to a prosecution for theft that the defendant[] . . . [b]elieved that the defendant was entitled to the property or services under a claim of right[.]" HRS § 708-834(1). The HSC noted that even if the claim-of-right instruction was necessary, "it is already subsumed within in the mistake of fact defense" and that it "should only be given where the circumstances of the case require it 'for purposes of clarity and emphasis.'" Commentary on HRS § 708-834.

The HSC noting that the term "claim of right" was undefined. According to Black's, it means that "a defendant assert[s] that the property was taken under the honest (but mistaken) belief that the defendant had a superior right to the property." Black's Law Dictionary 266 (8th ed. 2004). Furthermore, a "claim of right . . . amounts to a belief that the actor is the true owner." Commentary on HRS § 708-834. This comment, according to the HSC, implies that the defendant asserting a claim of right must have a belief that he or she had an entitlement to the property prior to depriving others of it. Finally, "[i]t is vital to the defense . . . that the interest which the accused asserts under a claim of right must be to specific property. " State v. Brighter, 62 Haw. 25, 30, 608 P.2d 855, 859 (1980) (per curiam). Property is "specific" when the defendant "believes that the particular indentifiable item seized is the same as that which was previously in the defendant's possession." Citing State v. Martin, 516 P.2d 753, 755 (Or. App. 1973).

Thus, the HSC held that a claim of right defense requires the belief that the defendant had a pre-existing ownership right to specific property. This is not the same as the general mistaken belief that defendant is entitled to something or that a debt is owed to the defendant. Here, the HSC held that Stenger did not argue that she had a right to the specific coins or bills she received from DHS and thus, did not claim "specific property." Thus, the ICA erred in concluding that Stenger was entitled to a claim-of-right instruction. The HSC specifically held that a claim of right defense must encompass a form of pre-existing ownership to specific property.

No Unanimity Instruction Needed for Theft in the 1st. A criminal defendant is entitled to a unanimous verdict. State v. Arceo, 84 Hawai'i 1, 30, 928 P.3d 843, 872 (1996). When "separate and distinct culpable acts" could support a single conviction, there must be (1) a unanimity instruction (i.e. "an instruction that advises the jury that all twelve of its members must agree that the same underlying criminal act has been proved beyond a reasonable doubt") or (2) the prosecutor "elects" the specific conduct upon which it is trying to establish the "conduct" element. State v. Arceo, 84 Hawai'i at 32-33, 928 P.3d at 874-75. No instruction is necessary when the offense is a "continuing" one and when the prosecutor argues that "the requisite conduct element is satisfied by the defendant's continuing course of conduct. State v. Hironaka, 99 Hawai'i 198, 207-08, 53 P.3d 806, 815-16 (2002). An offense is "continuing" when it is "a continuous, unlawful act or series of acts set on foot by a single impulse and operated by an unintermittent force, however long a time it may occupy[.]" State v. Arceo, 84 Hawai'i at 18, 928 P.2d at 860. The HSC noted in Arceo that theft by deception is one example of a "continuing" offense. Id. at 19, 928 P.2d at 861. It was clear to the HSC that in this case, theft by deception in the 1st degree--that is, theft of the entire amount--is a "continuing offense" that did not require a unanimity instruction.

Unanimity Still Necessary for Lesser-Included Theft in 2d. Stenger argued that the jury could have found that she obtained benefits one month illegally and another month legally. If that is so, then the lesser-included theft in the 2d degree would apply. That lesser-included offense, according to Stenger, required the unanimity instruction because it would be impossible to know which series of acts constituted the offense. The HSC agreed. The unanimity instruction is intended "to eliminate any ambiguity that might infect the jury's deliberations respecting the particular conduct in which the defendant is accused of engaging and that allegedly constitutes the charged offense." State v. Kassebeer, 118 Hawai'i 493, 508, 193 P.3d 409, 424 (2008). According to the HSC, the prosecutor failed to argue that for the lesser-included offense "the requisite conduct element is satisfied by the defendant's continuous course of conduct." State v. Hironaka, 99 Hawai'i at 208, 53 P.3d at 816. Thus, on remand, if the prosecutor again fails to make the argument, there must be a unanimity instruction for theft in the 2d to ensure that the jury was unanimous.

The Other Lessers are Necessary. The HSC also held that the jury must be instructed as to the other lesser-included offenses of theft in the 3d and theft in the 4th. The severity of theft offenses are based on the value of the property that was taken. The trial court "must instruct juries as to any included offenses when there is a rational basis in the evidence for a verdict acquitting the defendant of the offense charged and convicting the defendant of the included offense[.]" State v. Haanio, 94 Hawai'i 405, 413, 16 P.3d 246, 254 (2001). Juries are "obligated to render true verdicts based on the facts presented; hence, barring their consideration of lesser included offenses supported by the evidence undermines their delegated function." Id. at 415, 16 P.3d at 256. Here, the circuit court did not instruct the jury on the lesser-included offenses of theft in the 3d and 4th degrees. The HSC held that it was possible for the jury to conclude that less than $20,000 was taken as well as less than $300 or even $100 and, thus, it was error to not instruct the jury on these offenses.

Justice Nakayama's Dissent: Trial Court not Obligated to Instructions as to All Defenses. Justice Nakayama believed that the trial court was not obligated to sua sponte instruct the jurors on the mistake-of-fact defense. Justice Nakayama wrote that although the trial court has a duty to properly instruct the jury, the failure to instruct the jury on the defense without it being requested by the defendant cannot be an instructional error. Justice Nakayama believed that because neither Stenger nor the prosecution requested the mistake-of-fact instruction, it cannot be error for the trial court to not give it. Justice Nakayama was concerned that it would be too burdensome for the trial court to examine every possible theory that may fit the evidence, which would radically restructure the adversarial system and even create incentives for the defense to make no request. She also believed that the failure to give the mistake-of-fact instruction was not harmless.

Chief Justice Moon's Dissent: not all--Including this one--but some. Chief Justice Moon disagreed with the broad rule implied by the majority as well as Justice Nakayama's narrow view that a trial court never duty bound to instruct the jury sua sponte as to all defense instructions. Chief Justice Moon also disagreed with Judge Kim's position and believed that the majority has implicitly held that the trial courts are duty-bound to give instructions on all possible defenses that fit the evidence, "no matter how weak." There are times, wrote Chief Justice Moon, where a trial court is required to instruct the jury sua sponte. Looking to California courts, Chief Justice Moon believed that the trial court has a duty to sua sponte instruct the jury on potential defenses when (1) it appears that the defendant relied on the defense; and (2) there is "substantial evidence" to support the defense and it is not inconsistent with the defendant's theory of the case. See People v. Barton, 906 P.2d 531, 535 (Cal. 1995). In this case, Chief Justice Moon agreed with Justice Nakayama that the failure to give the mistake-of-fact instruction was harmless.

Judge Kim's Concurrence: not all, but some--Including this one. Judge Kim--who was substituting to fill the vacancy created by Justice Levinson--wrote separately to comment on Justice Nakayama's dissent. Judge Kim wrote that it does not necessary follow "from the majority opinion that, as a matter of law, a trial court is hereafter required to instruct the jury sua sponte as to every conceivable defense suggested by the evidence below." Judge Kim pointed out that in this particular case, the heart of the defense was a mistake of fact even though it requested a claim of right instruction, which--as made clear by the majority--would have been subsumed by the more general mistake of fact. As Judge Kim wrote, "the defense had the theory right, but the specific instruction wrong, and the trial court, while correctly recognizing the latter, mistakenly failed to recognize the former[.]" Judge Kim wrote that Justice Nakayama's concerns about having to comb the evidence for every possible defense were unfounded because "here, the theory at issue formed the very heart of the defense case, rather than some nebulous, barely glimpsed theory on the margins."

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