The two states of mind in the 'intent to defraud"

 State v. Garcia (HSC October 7, 2022)

Background. Randy Garcia was charged with four counts of forgery in the 2d degree. This is Count 4:

 

On or about October 9, 2019, in the City and County of Honolulu, State of Hawai'i, RANDY GARCIA did, with intent to defraud, utter a forged instrument, to wit, First Hawaiian Bank check #1877, drawn on the account of EAH Inc., made payable to Randy Garcia in an amount of Two Thousand Two Hundred Fifty Dollars ($2,250.00), which is or purports to be, or which is calculated to become or to represented if completed, a deed, will, codicil, contract, assignment, commercial instrument, or other instrument which does or may evidence, create, transfer, obligation, or status, thereby committing the offense of Forgery in the Second Degree, in violation of Section 708-852 of the Hawai'i Revised Statutes.

 

The language in the charges tracked HRS § 708-852:

 

A person commits the offense of forgery in the second degree if, with the intent to defraud, the person . . . utters a forged instrument . . . which is or purports to be, or which is calculated to become or to represent if completed, a deed, will, codicil, contract, assignment, commercial instrument, or other instrument which does or may evidence, create, transfer, terminate, or otherwise affect a legal right, interest, obligation or status.

 

Garcia moved to dismiss the counts on the grounds that the charging document did not include the statutory definition of the term “intent to defraud” in HRS § 708-800. The circuit court—the Hon. Judge Kevin A. Souza presiding—granted the motion and dismissed the counts without prejudice. The prosecution appealed and the ICA vacated the dismissal order. Garcia petitioned for review to the HSC.

 

Constitutionally sufficient charges need to include the states of mind. The “central role” in examining the sufficiency of a charging document is notice. It is part of due process of law. Haw. Const. Art. I, Sec. 5. It also advances the right “to be informed of the nature and cause of the accusation[.]” Haw. Const. Art. I, Sec. 14. Not only does the charging document have to include the elements of the offense, it must also “sufficiently apprise[] the defendant of what he or she must be prepared to meet[.]” State v. Wheeler, 121 Hawai'i 383, 391, 219 P.3d 1170, 1178 (2009).

 

States of mind must be pleaded with the elements of the offense. That includes the requisite state of mind. The state of mind is an “‘essential fact’ that must be pled under HRPP Rule 7(d)[.]” State v. Maharaj, 131 Hawai'i 215, 219, 317 P.3d 659, 663 (2013). Without it, “a conviction based upon the charge cannot be sustained, for that would constitute a denial of due process.” Id. See also State v. Nesmith, 127 Hawai'i 48, 56, 276 P.3d 617, 625 (2012) (“state of mind . . . though not an ‘element of the an offense’” required in charging document).

 

The “intent to defraud” carries two states of mind that must be included in the charge. Here, the term “intent to defraud” in forgery charges are defined by statute:

 

“Intent to defraud” means: (1) An intent to use deception to injure another’s interest which has value; or (2) Knowledge by the defendant that the defendant is facilitating an injury to another’s interest which has value.

 

HRS § 708-800. According to the HSC, this means forgery has two separate states of mind: either the specific “intent to use deception to injure another’s interest which has value” or “knowledge . . . that the defendant is facilitating an injury to another’s interest which has value[.]” Id. See also State v. Shinyama, 101 Hawai'i 389, 391, 69 P.3d 517, 519 (2003) (term “prescribes two alternative means of establishing the state of mind”).

 

The HSC held that merely tracking the language of the statute does not give adequate notice to the accused about forgery’s different states of mind. The pleading violated Article I, Sections 5 and 14 of the Hawai'i Constitution.

 

The conduct and attendant circumstances were adequately pleaded without having to define them. Garcia also argued that the failure to plead the statutory definitions of “utter,” “written instrument,” “forged instrument,” “falsely make,” “falsely complete,” falsely endorse,” and “falsely alter” also violated the constitution. The HSC disagreed.

 

Normally, tracking the language of the statute is adequate. State v. Mita, 124 Hawai'i 385, 391-392, 245 P.3d 457, 464-465 (2010). The HSC noted that too many definitions “convolute[] charging documents. Plus, statutory definitions do not necessarily make incomprehensible words readily comprehensible to persons of common understanding.” The charge must provide details about the alleged offense and nothing more. Here’s how the HSC put it:

 

Charging documents are often rife with superfluous and unwieldy statutory language. When it comes to informing defendants of the accusations they face, this legalese (though sometimes unavoidable) is no substitute for meaningful factual information about the charged violation. Details about the who, what, where, when, and how of the alleged offense help ensure defendants are properly informed of the charge they must defend against, and this court endorses these facts’ inclusion in charging documents.

 

The HSC held that Garcia had fair notice about the charge without defining terms surrounding the conduct and attendant circumstances.