Weak, Inconclusive Evidence of Defense may not Require an Instruction

State v. Taylor (August 2, 2013)
Background. Pamela Taylor was charged with theft in the second degree and unauthorized practice of law. It was alleged that Taylor acquired $7,000 from Mariko Bereday as a retainer for legal services thereby committing theft by deception. At trial, Bereday testified that she heard that Taylor was a lawyer from a friend and went to see her. Bereday said that Taylor told her she used to be a federal public defender and was now working at a 35-person law firm. Taylor asked for a retainer of $30,000, but Bereday could only afford $7,000. Taylor received a check for $7,000 and she tried to cash it. Bereday asked why she tried to cash it and Taylor said she had to ensure that the check was “good.”
Bereday got suspicious and went to the bank where she learned that Ismael Serna Lara was on the payee line, not Taylor. She also learned that Taylor was not a lawyer and confronted her about it. Taylor brought her back a check for $7,000, but according to Bereday, it was a bogus and she never got her money back.
Taylor testified at trial. She said that she was working with Lara and Damon Roth, whom she assumed were lawyers at a firm called Legal Associate Services, Inc., LLC. She testified that Bereday spoke with Roth many times on the phone and that Roth directed Taylor and Lara to try and cash the check. They tried at the Central Pacific Bank in Kapolei, but they wouldn’t do it. They tried again at the Kahala branch and they did. Taylor never touched the money. Lara took it, and she never saw it again.
According to Taylor, Lara told her to visit Bereday again to give her the receipt and other paperwork. When she got there, Bereday was upset and demanded a refund. Lara got mad too when he learned of Bereday’s demand, and wrote up a “refund check” to give to Bereday. Taylor testified that she believed Roth and Lara were attorneys and that back in 2006, they hired her to do some clerical work.
All jury instructions were given by agreement. No mistake-of-fact instruction had been given to the jury. The jury found Taylor guilty as charged. She was sentenced to five years prison and ordered to pay $7,000 in restitution. Taylor appealed. The ICA reversed the judgment on the grounds that the trial court erred in instructing the jury sua sponte about the mistake-of-fact defense. The government petitioned for certiorari.
Theft by Deception and the Mistake-of-Fact Defense. 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). If the value of the property exceeds $300, it’s a felony. HRS § 708-831(1)(b). “Deception” means knowingly creating or confirming “another’s impression which is false and which the defendant does not believe to be true,” failing “to correct a false impression which the previously has created or confirmed,” or promising “performance which the person does not intend to perform or knows will not be performed[.]” HRS § 708-800.
Mistaken facts on the part of the defendant, however, is a defense to theft by deception. “[I]t is a defense that the accused engaged in the prohibited conduct under ignorance or mistake of fact if: (1) The ignorance or mistake negatives the state of mind required to establish an element of the offense; or (2) The law defining the offense or a law related thereto provides that the state of mind established by such ignorance or mistake constitutes a defense.” HRS § 702-218.
Pulling the Stenger Out . . . The question in this case is whether the trial court erred in instructing the jury about this defense when neither party asked for it. A badly-divided HSC confronted a similar issue in State v. Stenger, 122 Hawai'i 271, 226 P.3d 441 (2010). According to the HSC, the Stenger plurality held that when there is an instruction requested by the defendant and the instruction is erroneous, the trial court has a duty to provide a correct instruction to the jury.
The HSC noted that in the three years since Stenger, the case has been improperly read to mean that the trial court has a duty to provide instructions that were never requested so long as the evidence would have supported such an instruction.
Rethinking Nichols. Fortunately for Taylor, there’s State v. Nichols, 111 Hawai'i 327, 141 P.3d 974 (D). There, the HSC held that even if the defendant did not raise the instructional issue before the trial court, “once instructional error is demonstrated [on appeal], we will vacate, without regard to whether timely objection was made, if there was a reasonable possibility that the error contributed to the defendant’s conviction[.]” Id. at 337, 141 P.3d at 984. The Nichols court explained that the failure to raise the issue before the trial court usually would trigger a plain-error analysis after the error was raised on appeal for the first time. That would render the additional harmless error analysis superfluous. Thus, the Nichols court reasoned that a single, harmless error analysis was sufficient.
The HSC observed that even though the Nichols court claimed to have merged the two standards, it still did “a two-step, plain-error-then-harmless error review in analyzing instructional error.” The HSC synthesized the Nichols analysis. First, the defense has to overcome the presumption that the instructions were correct by finding instructional error. Id. at 337, n. 6, 141 P.3d at 984, n. 6. Then, the defendant has to show that the error was not harmless beyond a reasonable doubt (i.e., there was a reasonable possibility that the error contributed to the conviction). Id. at 337, 141 P.3d at 984. And so, when the defendant fails to object to instructional error and raises it for the first time on appeal, the plain-error standard still applies. See State v. Kikuta, 125 Hawai'i 78, 95, 253 P.3d 639, 656 (2011). Plain error arises when “the substantial rights of the defendant have been affected adversely[.]” Id.
A Very Specific Holding: Credible Evidence Test. After sorting out those standards, the HSC a precise holding and test. When a jury instruction for the mistake-of-fact defense was never requested by the defendant and was never given by the trial court, plain error affecting substantial rights of the defendant arises “if the defendant had met his or her initial burden at trial of adducing credible evidence of facts constituting the defense (or those facts are supplied by the prosecution’s witnesses).” Credible evidence is evidence that would allow “a reasonable juror [to] harbor reasonable doubt[.]” Here, Taylor failed to meet this burden at trial. According to the HSC, her testimony wasn’t enough to arise to plain error.
Plain Error v. Error. What if Taylor had requested the instruction and the trial court refused to give it? That would suggest that plain error would not apply and it would have been a much easier standard for her on appeal. In that case, it would seem to preserve the very favorable rule that the “defendant is entitled to an instruction on every defense or theory of defense having any support in the evidence . . . no matter how weak.” State v. Locquiao, 100 Hawai'i 195, 205-06, 58 P.3d 1242, 1252-53 (2002).
Justice Acoba’s Dissent. Justice Acoba raised three objections. First, Justice Acoba believed that “if weak, inconclusive, or unsatisfactory evidence going to a particular defense is adduced . . ., the court must instruction the jury on that defense, even if the defendant does not request such an instruction, in order that the jury may arrive at an informed and just verdict.”
Justice Acoba also took issue with the holding. The credible-evidence test “elevates trial strategy over the public interest in arriving at an even result, shifts the law-giving function of the judge to the parties, encroaches on the jury’s role, and contravenes the defendant’s constitutional right to a jury trial, the right to an impartial judge, the presumption of innocence, and the right to a fair trial.”

Finally, Justice Acoba disagreed with the majority’s take on Nichols and believed that the two-step process was unnecessary. Once the defendant finds instructional error, the appellate court should only consider whether it was harmless.


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