State v. Williams-Garcia

457 P.3d 845 (Table)

STATE of Hawai‘i, Plaintiff-Appellant,

v.Joseph WILLIAMS-GARCIA, Defendant-Appellee

NO. CAAP-17-0000604

Intermediate Court of Appeals of Hawai‘i.

February 13, 2020

On the briefs:

Sonja P. McCullen, Deputy Prosecuting Attorney, City & County of Honolulu, for Plaintiff-Appellant.

Jon N. Ikenaga, Deputy Public Defender, for Defendant-Appellee.

(By: Ginoza, C.J., and Leonard and Wadsworth, JJ.)

SUMMARY DISPOSITION ORDER

Plaintiff-Appellant State of Hawai‘i (State) appeals from the July 12, 2017 Findings of Fact, Conclusions of Law, and Order Granting [Defendant-Appellee Joseph Williams-Garcia's (Williams-Garcia) ] Motion to Dismiss Count III of the Superseding Indictment for Violation of Defendant's Due Process Rights (FOFs/COLs) , entered in the Circuit Court of the First Circuit (Circuit Court).¹

The State contends that the Circuit Court erred in dismissing Count III, Theft in the Second Degree: (1) on the ground that the charging language failed to allege the requisite state of mind as to certain parts of the charge, in violation of Williams-Garcia's due process rights; and (2) with prejudice, based on the Hawai‘i Supreme Court's decision in State v. Estencion, 63 Haw. 264, 625 P.2d 1040 (1981). The State also challenges certain related findings of fact and conclusions of law in the FOFs/COLs.

After reviewing the record on appeal and the relevant legal authorities, and giving due consideration to the issues raised and the arguments advanced by the parties, we resolve the State's contentions as follows.

I. BACKGROUND

On December 9, 2015, and December 23, 2015, respectively, the State filed an Indictment and Superseding Indictment (indictment) , both of which charged Williams-Garcia with Theft in the Second Degree, in the following language:

COUNT 3: On or about December 3, 2015, in the City and County of Honolulu, State of Hawai‘i, JOSEPH WILLIAMS-GARCIA, did obtain or exert unauthorized control over the property of [AV], the value of which exceeds Three Hundred Dollars ($300.00), with intent to deprive [AV] of the property, thereby committing the offense of Theft in the Second Degree, in violation of Section 708-831(1)(b) of the Hawai[ ]i Revised Statutes.

(Count III).

At the time, Hawai‘i Revised Statutes (HRS) § 708-831(1)(b) (2014) provided: "A person commits the offense of theft in the second degree if the person commits theft ... [of] property or services the value of which exceeds $300." HRS § 708-830(1) (2014) defines "theft," as follows: "A person commits theft if the person ... [o]btains or exerts unauthorized control over the property of another with intent to deprive the other of the property."

On May 5, 2017, Williams-Garcia moved to dismiss Count III with prejudice, arguing that the charging language failed to include the required state of mind as to: (1) "obtain[ing] or exert[ing] unauthorized control over the property of another"; and (2) the value of the property.

At the June 27, 2017 hearing of the motion, the court indicated that it would dismiss Count III, but would hear arguments on whether the dismissal should be with or without prejudice. The court explained that because the State repeatedly failed to include the correct charging language, the court would look to the factors in Estencion to determine if the dismissal should be with or without prejudice.

The July 12, 2017 FOFs/COLs stated in relevant part:

FINDINGS OF FACT

....

4. Both the Indictment and the Superseding Indictment omit the mens rea requirement for the essential elements as to Defendant's state of mind as to the value of the property and Defendant's state of mind as it pertains to "obtain or exert unauthorized control over property".

....

CONCLUSIONS OF LAW

....

3. "Requiring mens rea to be included in each element of the offense charged ‘alerts defendants of precisely what they need to defend against to avoid a conviction.’ " [ State v. Gaub, No. CAAP 16-0000547, 2017 WL 213153, at *4 (Haw. App. Jan. 18, 2017) (SDO) ].

4. Based on Hawaii Supreme court decisions, a charging document "must reflect the mens rea of intent related to the value of the property when a person is charged with an offense of theft." Gaub at 7.

5. Additionally, even though the "statute does not expressly provide a mens rea before the language ‘obtains or exerts unauthorized control over the property of another’, the mens rea of intent also attaches to obtaining or exerting unauthorized control over the property of another." Gaub at 10.

6. Because Count III of the Superseding Indictment in the instant case fails to allege the requisite state of mind as to the valuation element of the offense as well as the element of obtaining and exerting unauthorized control over the property, it is deficient for failing to provide fair notice to Defendant thereby violating Defendant's due process rights.

7. Because the language in Count III of the Superseding Indictment is fatally defective, this Court must grant Defendant's Motion to Dismiss Count III.

8. In determining whether to dismiss the instant case, with or without prejudice, the Court must consider and apply the factors listed in [Estencion ].

9. These factors are: "the seriousness of the offense, the facts and the circumstances of the case which led to the dismissal, and the impact of reprosecution on the administration of justice must be considered." [ Id. ] at 269, 625 P.2d at 1044.

10. In evaluating the seriousness of the offense, while Count III is a Class C felony, which carries a potential five-year prison term, standing alone, it could be viewed as serious, but when compared to other Class C felonies and considering Defendant is charged with one Class A felony, one Class B felony, two other Class C felonies, and one misdemeanor, the Count III offense of Theft in the Second Degree is not serious under this analysis.

11. The facts and circumstances of the case leading to a dismissal that weigh in favor of the Defense include the number of offenses remaining which Defendant still faces in the instant case, as well as the fact that this case was charged back in December 2015 and is currently pending trial the week of August 21, 2017.

12. The State had two opportunities to correctly charge Defendant and failed to do so, and the impact of reprosecution and the administration of justice would be thwarted if the State were to get a third opportunity.

13. To permit the State to come back and refile Count III of the above-entitled case, by dismissing said Count without prejudice, would impact the current trial date.

14. Fundamental fairness to Defendant requires that the dismissal be with prejudice.

II. DISCUSSION

A. Insufficiency of Count III

The State argues that the Circuit Court erred in dismissing Count III, asserting that the charging language sufficiently apprised Williams-Garcia of the state of mind that he needed to defend against.

The Hawai‘i Supreme Court has held that a criminal charge must set out the applicable state of mind, or mens rea, to satisfy due process requirements. See State v. Nesmith, 127 Hawai‘i 48, 53, 276 P.3d 617, 622 (2012). In Nesmith, the supreme court noted that "[i]n some cases, ... a charge tracking the language of the statute defining the offense nevertheless violates an accused's due process rights." Id. Though not an element of the offense, applicable states of mind are "required to be included in the charges against the defendants in order ‘to alert the defendants of precisely what they needed to defend against to avoid a conviction.’ " State v. Gonzalez, 128 Hawai‘i 314, 324, 288 P.3d 788, 798 (2012) (quoting Nesmith, 127 Hawaii at 56, 276 P.3d at 625 ). Further, "[a] charge that fails to charge a requisite state of mind cannot be construed reasonably to state an offense and thus the charge is dismissed without prejudice because it violates due process." State v. Apollonio, 130 Hawai‘i 353, 359, 311 P.3d 676, 682 (2013).

Regarding theft statutes, prior decisions of this court and the Hawai‘i Supreme Court support the Circuit Court's ruling here that the mens rea of intent applies to the value of the property involved in the theft. See State v. Cabrera, 90 Hawai‘i 359, 978 P.2d 797 (1999) ; State v. Mitchell, 88 Hawai‘i 216, 965 P.2d 149 (App. 1998). Although Cabrera and Mitchell addressed whether jury instructions were appropriate, "both cases held that the mens rea of intent applied with regard to the value of the property involved in the respective case." State v. Gaub, No. CAAP 15-0000547, 2017 WL 213153, at *3 (Haw. App. Jan. 18, 2017) (SDO) (explaining the rulings in Cabrera and Mitchell ).

In Gaub, this court applied the rulings in Cabrera and Mitchell to assess the sufficiency of a charge of Theft in the Second Degree under HRS §§ 708-831(1) (b), based on alternative types of "theft" under HRS § 708-830(1) and (7). Regarding the former alternative, the court concluded:

[T]he offense charged against [the defendant] in this case based on HRS §§ 708-831(1) (b) and 708-830(1) requires establishing, inter alia, that [the defendant] had an intentional state of mind regarding the value of the property being in excess of $300. Given this requirement, and in light of the Hawai‘i Supreme Court cases related to the inclusion of applicable mens rea in charging documents, the charge against [the defendant] must have reflected the mens rea of intent related to the value of the property.

Gaub, 2017 WL 213153, at *5. The relevant charge in Gaub stated that the defendant "obtained or exerted unauthorized control over the property of another, TIRE(S) belonging to LEX BRODIE TIRE AND SERVICE the value of which exceeded $300.00 with intent to deprive the owner of the property." Id. at *6 (emphasis omitted). Because this charging language "[could] not reasonably be read such that [the defendant] was put on notice that he committed the alleged conduct with the intent that the value of the property exceeded $300[,]" this court affirmed the circuit court's dismissal of the charge under HRS §§...