Two Competing Theories in a Single Charging Instrument
State v. Yotokta (HSC September 5, 2018)
Background. Eric Yokota was charged with five counts of forgery and one count of theft in the second degree based on fraudulently cashing five checks from the same bank account at the Pearlridge branch of the American Savings Bank. In the felony information it was alleged that Yokota cashed five checks over the course of six days. Each check did not arise to the felony-level threshold for theft but the grand total permitted a felony count. The prosecution charged Yokota with a single count of theft occurring over the six-day period and five distinct counts of forgery for each check on a specific day. Yokota moved to dismiss the charges. The motion was granted and the prosecution appealed. The ICA vacated the dismissal order. Yokota petitioned for certiorari.
Theft as a Continuing Course of Conduct. “An offense is committed when every element occurs, or, if a legislative purpose to prohibit a continuing course of conduct plainly appears, at the time when the course of conduct or the defendant’s complicity wherein is terminated.” HRS § 701-108(4). “The 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.” State v. DeCoite, 132 Hawaii 436, 438, 323 P.3d 80, 82 (2014).
The HSC examined the language of our theft statutes and held that it may be charged under a theory of the continuing course of conduct. Theft occurs when a 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). It becomes theft in the second degree when the “property or services” exceeds $300 in value. HRS § 708-831(1)(b). obtainiThe HSC carefully noted that the legislature defined theft as the obtaining or exerting control over another’s “property or services”—in the plural—and not a single piece of property or a service. Moreover, when it comes to calculating the amount of the stolen property, “[a]mounts involved in thefts committed pursuant to one scheme or course of conduct . . . may be aggregated in determining the class or grade of the offense.” HRS §708-801(6). And so the HSC interpreted these statutes to mean that a single theft charge can be brought under a continuing course of conduct theory and the trial court erred in dismissing the count.
Continuing Course of Conduct is a Jury Question. The HSC highlighted that even though the prosecution can bring the charge under this theory, whether a continuing course of conduct occurred at all is a question for the jury to resolve. State v. Matias, 102 Hawaii 300, 305, 75 P.3d 1191, 1196 (2003) (“All factual issues involved in this determination must be decided by the trier of fact.”).
A Continuing Course of Conduct and Single-Count Theories in one Charge. The HSC rejected Yokota’s argument that the continuing course of conduct theory for the theft is inconsistent with the single-charge forgery counts and could not be brought in a single charge. The HSC noted that the prosecution has “wide discretion” in bringing charges. State v. DeCoite, 132 Hawaii at 442, 323 P.3d at 86 (Pollack, J., dissenting); State v. Lagat, 97 Hawaii 492, 499, 40 P.3d 894, 901 (2002). It also relied on HRS § 701-109(1), which allows the prosecution to charge the defendant with multiple offenses arising from the same conduct (even though the defendant cannot be convicted of more than one offense). And so, the prosecution can always bring the charge, but they may merge in the end and the defendant may be convicted of only a single charge if it arises from the same continuing course of conduct. All of that, however, is up to the trier of fact. State v. Matias, 102 Hawaii at 305, 75 P.3d at 1196.