State v. Faamama

139 Hawai'i 94

384 P.3d 870

State of Hawai‘i, Respondent/Plaintiff–Appellee,

v.Leon Makanalani Faamama, Petitioner/Defendant–Appellant.

SCWC–14–0000061

Supreme Court of Hawai'i.

NOVEMBER 14, 2016

Thomas R. Waters for petitioner.

James M. Anderson, Honolulu, for respondent.

RECKTENWALD, C.J., NAKAYAMA, McKENNA, AND POLLACK, JJ., WITH CIRCUIT JUDGE CRANDALL, IN PLACE OF WILSON, J., RECUSED, DISSENTING

OPINION OF THE COURT BY RECKTENWALD, C.J.

Leon Makanalani Faamama was charged with Theft in the First Degree. After a jury trial in the Circuit Court of the First Circuit, he was found guilty as charged. Faamama appealed, arguing inter alia that the circuit court erred in not instructing the jury on the lesser-included offense of Theft in the Second Degree. The Intermediate Court of Appeals (ICA) affirmed, and Faamama now seeks review from this court.

We find that the court erred in failing to instruct the jury on the lesser-included offense. There was a rational basis in the evidence for a verdict acquitting Faamama of Theft in the First Degree and convicting him of Theft in the Second Degree, and this error was not harmless.

Accordingly, Faamama's judgment of conviction is vacated and the case remanded for a new trial.

I. Background

A. Trial Proceedings

On October 2, 2012, Faamama was charged with Theft in the First Degree in violation of Hawai‘i Revised Statutes (HRS) §§ 708–830.5(1)(a)¹ and 708–830(2)² .

At trial,³ the State relied heavily on the testimony of Pastor John Vaughn, the alleged victim. Vaughn met Faamama during the course of his ministry and developed a friendship with him.

Prior to October 2011, Faamama told Vaughn that he was participating in the Hawai‘i Drug Court program, but was being harassed by the Drug Court administrator, Janice Bennett. Faamama told Vaughn that he was routinely forced to move from one clean-and-sober house to another and each time pay the first month's rent and a security deposit. Faamama also told Vaughn that Bennett was extorting money from him by making him pay large fees that other participants were not made to pay. Faamama asked Vaughn for money for the rent, security deposits, and fees, and Vaughn began giving him money on a weekly basis.

Faamama told Vaughn that he was going to sue Bennett for harassment, and that once the lawsuit was resolved, Vaughn would get all of his money back. Faamama continued asking for larger amounts of money, claiming that Bennett kept extorting him for more fees and threatening him with imprisonment if he did not pay.

Vaughn testified that, between October 2011 and February 2012, he gave Faamama $ 54,000. Vaughn testified that all of this money came from twenty-six withdrawals on his home equity line of credit.

Eventually, Vaughn became concerned that he would not be repaid. Vaughn attempted to go to the Drug Court to talk to the presiding judge, Judge Steven Alm, but Faamama told him that the lawsuit against Bennett was confidential and therefore Vaughn could not enter the court. Faamama told Vaughn that Judge Alm was aware of the lawsuit and that, as soon as the outstanding fees were paid, the suit could be set for trial. Faamama also told Vaughn that Judge Alm had a friend in the Treasury Department and that it was assured that the money would be returned to Vaughn once the lawsuit was finished.

Vaughn gave Faamama money by writing checks on his home equity credit line, cashing the checks, and then directly giving the cash to Faamama. Vaughn also withdrew around $ 7,000 by maxing out three of his credit cards. Vaughn testified that he also received some money from the Veterans Administration after his father had passed away, and that he “gave it all”—around “three to four thousand dollars”—to Faamama. In addition, Vaughn testified that he borrowed approximately $ 47,000 from his friends and relatives that was given to Faamama.

The State introduced into evidence numerous exhibits to corroborate that the money had been withdrawn by Vaughn. Exhibit 18A was data from Vaughn's checking account, showing that he had written a $ 500 check to Faamama on September 5, 2012. Exhibit 18B was a spreadsheet showing that Vaughn had withdrawn $ 53,575 from his home equity line of credit. Exhibit 18C showed the history of Vaughn's home equity line of credit from September 19, 2011, to May 8, 2012, and Vaughn testified that all of the cash withdrawals were for Faamama. Exhibits 18D and 18E were lists of people that had loaned Vaughn roughly $ 47,000 to help Faamama. Exhibit 18F was a spreadsheet of the amount of money that Vaughn took for cash advances on his credit cards, totaling $ 6,395.75.

The State then introduced Exhibits 1A and 2, which were letters that had been written by Vaughn and given to Faamama to give to Judge Alm. In the first letter, dated March 8, 2012, Vaughn expressed concern about the “drug court staff ... requiring large sums of money from [Faamama] and threatening that he would go to jail if he did not pay.” Vaughn stated that he was “concerned about [his] own finances” and that he loaned “[Faamama] about $ 56,000 that the drug court has required of him for various things.”

In the letter dated March 22, 2012, Vaughn wrote to Judge Alm again “out of continued concern and frustration” because “the Drug Court staff keeps finding new charges that Leon Faamama must pay or go to jail.” He also mentioned that he loaned Faamama “over $ 60,000 over the last several months.” He wrote that he had “additional debts at 25% interest” which he was “carrying for [Faamama].”

The State next introduced Exhibit 12, which were receipts dated August 3, 2012, August 22, 2012, August 27, 2012, and August 30, 2012. Vaughn testified that he started making receipts only toward the “very end,” after his wife told him that he should do so, both for his benefit as well as for Faamama's. The total amount of these receipts was approximately $ 18,000.

On cross-examination, defense counsel questioned Vaughn as to whether Faamama's Drug Court claims made sense to him. Vaughn replied that it did not anymore, but back then he was more focused on quickly getting the money to Faamama than asking questions. Vaughn also admitted that before he started giving money to Faamama, he had run up the debt on his home equity line of credit to $ 134,000. Vaughn also testified that he did not keep accounts of his spending or of the money he gave to Faamama. He also testified that he “co-mingled his personal money” with the money that he received from his friends and relatives by putting it in his checking account.

Vaughn further testified on cross that he never mailed the letters to Judge Alm because he thought Faamama would give them to him. He testified that he did not follow up, despite not getting a response, because Faamama told him that the case was pending and thus Judge Alm could not talk about it. He said that he did go to the Drug Court, but waited outside and never spoke to anyone.

The State introduced several other witnesses at trial, including Judge Alm and Bennett who both testified that the Drug Court participants paid a “one-time flat fee” of $ 250 and that Faamama paid nothing more. Further, Bennett testified that she did not tell Faamama that he would go to jail if he did not pay large sums of money to Drug Court, nor did she require him to pay fees that other participants were not paying.

Faamama did not testify, and the defense did not present any witnesses. At the end of trial, Faamama moved for a judgment of acquittal, arguing that the State failed to make a prima facie case. The court denied the motion.

B. Jury Instructions

At the end of trial, defense counsel requested that a Theft in the Second Degree instruction be given to the jury because “it's possible the jury could believe that the State did not prove that he took over $ 20,000 but that [the State] did prove, based on the receipts, that he did receive $ 18,000.” The circuit court initially agreed, noting that he was going to make the same suggestion. The court stated that a reasonable juror may be convinced that the rest of the money was a gift or was not proven, and thus would want to convict Faamama only on the basis of $ 18,000, the amount for which there were receipts signed by Faamama.

The State disagreed, arguing that “in order to find [Faamama] guilty of stealing that amount, they would have to reject that idea or claim that it was given as a loan, and if they reject that idea or claim, I don't see any rational basis for them to reject the rest of the money.” The State also argued that significant evidence was presented to corroborate Vaughn's testimony.

The State argued that the letters written by Vaughn to Judge Alm were the “same sorts of evidence” as the receipts because Vaughn had written the amount of money he had given to Faamama. The court agreed with this argument, noting that the letters were in writing and that the jury could look at them as well.

The court denied defense counsel's request, concluding that there was no “rational basis for a reasonable juror” to believe that Faamama took less than $ 20,000 from Vaughn. Defense counsel then requested an instruction of Theft in the Fourth Degree, but the court denied the request on the same basis.

Accordingly, the jury was only instructed on Theft in the First Degree.

C. Jury Verdict and Sentencing

On September 16, 2013, the jury found Faamama guilty of Theft in the First Degree. The Court sentenced Faamama to prison for ten years, ordered him to pay restitution of $ 158,910.75 to Vaughn, and also $ 105 to the Crime Victim Compensation Fund.

D. ICA Proceedings

Faamama appealed to the ICA, alleging four points of error: (1) the court violated his constitutional right to testify by failing to administer a proper Tachibana colloquy; (2) the court erred in failing to instruct the jury on lesser-included theft offenses; (3) the DPA committed prosecutorial misconduct in his opening statement and closing argument; and (4) the court erred in denying his motion for judgment...