Tomomitsu v. State (Concurring and Dissenting Opinion by J. Acoba)

CONCURRING AND DISSENTING OPINION OF ACOBA, J.

I concur with the majority except with respect to its disposition of Criminal No. 56517, in which it reverses the convictions of Petitioner-Appellant Clement Jiro Tomomitsu (Tomomitsu) for theft in the first degree (Count I) and theft in the second degree (Count II). I would affirm those convictions.I.

The majority states that obtaining the stolen property and disposing of such property in this case constituted one theft. I believe, however, that the one robbery charge and two theft charges in this case stemmed from separate, culpable acts. While various manners and styles of culpable conduct related to the common law crime of larceny have been gathered under the general definition of "theft" in the Hawaii Penal Code, see also Model Penal Code and Commentaries § 223 commentary at 231-34 (Official Draft and Revised Comments 1980), the facts of each case determine whether a theft is separately punishable or is merged into a robbery offense. The fact that different acts are all labeled "theft" does not make such acts fungible for the purposes of double jeopardy or Hawaii Revised Statutes (HRS) § 701-109 (1985) analysis.

II.

On December 10, 1981, Tomomitsu was indicted on two charges of theft. In Count I, Tomomitsu was charged with "committing the offense of Theft in the First Degree in violation of Section 708-831(1)(b) [(1985)] of the [HRS]" on February 19, 1981 because he "did intentionally receive, retain, or dispose of property, knowing it had been stolen to wit, camera and camera accessories [(camera equipment)], the property of Per Alricson [(Alricson)], the value of which exceeds Two Hundred Dollars[.]" (Emphasis added). Under HRS § 708-831(1)(b), "[a] person commits the offense of theft in the first degree if he commits theft: . . . [o]f property and services the value of which exceeds $200[.]" Under HRS § 708-830(7) (1985), an individual commits a form of theft, when he or she "intentionally receives, retains, or disposes of the property of another, knowing that it has been stolen with intent to deprive the owner of the property." (Emphasis added).

In Count II, Tomomitsu was charged with "committing the offense of Theft in the Second Degree in violation of Section 708-832(1)(a) [(1985)] of the [HRS]" on February 25, 1981 because he "did intentionally receive, retain, or dispose of property, knowing it had been stolen to wit, a wristwatch, the property of [Alricson], the value of which exceeds Fifty Dollars[.]" (Emphasis added). Under HRS § 708-832(1)(a), "[a] person commits the offense of theft in the second degree if he commits theft . . . [o]f property or services the value of which exceeds $50[.]" The relevant definition of theft in HRS § 708-830(7), relevant to Count I, is similarly applicable to this count.

On April 21, 1982, in an amended indictment, Tomomitsu was charged with robbery in a count designated as Count III. In Count III, Tomomitsu was alleged to have committed "the offense of Robbery in the First Degree in violation of Section 708-840(1)(b)(ii) [(1985)] of the [HRS]" on February 19, 1981 because "while in the course of committing theft, and while armed with a dangerous instrument, to wit, a handgun, [he] did threaten the imminent use of force against [Alricson], a person who was present, with the intent to compel acquiescence to the taking of or escaping with the property[.]" (Emphasis added). Under HRS § 708-840(1)(b)(ii), "[a] person commits the offense of robbery in the first degree if, in the course of committing theft . . . [h]e threatens the imminent use of force against the person of anyone who is present with intent to compel acquiescence to the taking of or escaping with the property[.]" The definition of theft obviously applicable under Count III is that set forth in HRS § 708-830(1), that is, that a person commits a form of theft if he or she "obtains, or exerts control over the property of another by deception with intent to deprive him of the property."

On May 27, 1986, Tomomitsu entered into a plea bargain according to which he would plead guilty as charged to the two theft counts and the first degree robbery charge would be reduced to second degree robbery. On June 2, 1986, the change of plea hearing was held. At the hearing, the presiding judge questioned Tomomitsu on his involvement in the alleged crimes. In a brief written statement on his guilty plea form, Tomomitsu stated, "My friend and I took a camera from another person after I showed the person a gun in my waist." Tomomitsu agreed that this statement on the guilty plea form was a "correct statement[.]"

Tomomitsu also agreed with the prosecutor's representation that after the robbery Tomomitsu and his accomplice "went to Brewer's Liquors" and sold the camera equipment to an undercover detective on February 19, 1981 and "the watch several days later[;]" that the camera equipment was appraised at "over $200[,]" and that the wristwatch "was appraised [for at least] $50 but less than $200."

The court, thereafter, "[found] that [Tomomitsu's] pleas [to all three counts under Criminal No. 56517 were] made with knowledge, done voluntarily and intelligently[,] . . . accept[ed his] guilty plea . . . and adjudge[d him] guilty[.]"

III.

A.

On appeal, Tomomitsu first argues that he was improperly punished "twice" for the same offense in violation of the double jeopardy clauses of the United States Constitution and Hawaii Constitution ⁽¹⁾ because theft is a lesser included offense of robbery. Plaintiff-Appellee State of Hawaii (the State), however, argues that the double jeopardy clauses are not involved because "the record clearly reflects that the factual bases for [Tomomitsu's] guilty pleas did not rely upon thefts during 'the course of the robbery,' but rather . . . [upon] the disposal of property known to be stolen at an undercover 'fence.'"

The majority holds that because theft is a lesser included offense of robbery, "the law does not permit the conviction of a defendant of two counts of theft for, first, having obtained or taken an item or property and, second, for having deposed of or sold the same item of property." Majority opinion at 8. It reasons that "the taking and/or selling of one item of property is only one theft." Majority opinion at 8. In essence, the majority believes that Tomomitsu's robbery conviction included as underlying thefts the sale of the camera equipment and wristwatch. Considering the surrounding facts, I conclude that the thefts were not lesser included offenses of the robbery conviction and, therefore, I disagree as to this aspect of the majority's opinion.

B.

The Hawaii Supreme Court recognizes that double jeopardy occurs in three situations: "(1) a second prosecution for the same offense after acquittal; (2) a second prosecution for the same offense after conviction; and (3) multiple punishments for the same offense." State v. Tuipuapua, 83 Hawaii 141, 148, 925 P.2d 311, 318 (1996) (emphases added) (citing State v. Toyomura, 80 Hawaii 8, 16, 904 P.2d 893, 901 (1995)). The first two situations concern successive prosecutions and the third situation concerns multiple punishments. State v. Ake, 88 Hawaii 389, 392, 967 P.2d 221, 224 (1998). Tomomitsu's claim falls under the third category.

Our supreme court has determined that the United States Supreme Court has adopted the "same elements" test, originally described in Blockburger v. United States, 284 U.S. 299 (1932), "as the standard under the Double Jeopardy Clause of the United States Constitution" for all three double jeopardy situations. ⁽²⁾ Ake, 88 Hawaii at 393, 967 P.2d at 225 (citing United States v. Dixon, 509 U.S. 688 (1993) (citations omitted)).

In the successive prosecutions context, the Hawaii Supreme Court has adopted the "same conduct" test ⁽³⁾ as the general standard to be applied under the Double Jeopardy Clause of the Hawaii Constitution. State v. Lessary, 75 Haw. 446, 460, 865 P.2d 150, 157 (1994). The supreme court has not expressly indicated which test applies under the Hawaii Constitution in the multiple punishments situation. This court, however, in State v. Caprio, 85 Hawaii 92, 937 P.2d 933 (App. 1997), stated that the appropriate test for a multiple punishment test was the Blockburger "same elements" test. ⁽⁴⁾

However, I believe that the double jeopardy clause under either the United States or Hawaii Constitutions is not implicated in this case because the robbery and charged thefts do not arise from the same conduct, act, or transaction. See supra notes 2 and 4.

IV.

A.

In State v. Pia, 55 Haw. 14, 514 P.2d 580 (1973), the Hawaii Supreme Court recognized that when "two [or more] different criminal acts are at issue, supported by different factual evidence even though separated in time by only a few seconds, one offense by definition cannot be 'included' in the other." Id. at 19, 514 P.2d at 584.

In Pia, the defendant was charged (1) in Count I with violating HRS § 724-5 (Supp. 1972) by committing "an assault or battery on a police officer in the performance of his duties with the intent to obstruct that officer in the discharge of those duties" and (2) in Count II with violating HRS § 740-11 (1968) by willfully interfering with "a police officer while such officer is lawfully executing his duties[.]" Id. at 15, 514 P.2d at 582. The defendants pled guilty to the second count and, thereafter, moved to dismiss the first count "on the ground that their guilty pleas and convictions of the second count constituted a bar to their prosecution for the first count under the principle of double jeopardy." Id. at 16, 514 P.2d at 583. The trial court, thereupon, dismissed Count I and the State appealed. Id.

On appeal, the prosecution argued that Count II related to the defendants' interference with the officer's attempt to subdue and arrest Pia, whereas Count I related to the defendants' assault or battery on the officer a few minutes after the arrest as the officer attempted to call for assistance. Id. at 17, 514 P.2d at 583. The Hawaii Supreme Court held that acceptance of the guilty plea to Count II did not bar the prosecution of Count I and remanded the case to the trial court. Id. at 21, 514 P.2d at 585. It reasoned that the defendants could have been properly punished for both counts if the prosecution could demonstrate that the two offenses charged constituted separate acts. Id. at 19, 514 P.2d at 584-85.

B.

Like Pia, in this case, separate acts were charged by the State and admitted to by Tomomitsu. Count III regarding robbery referred to theft as the taking and carrying away of the camera and wristwatch from Alricson. The relevant facts were Tomomitsu's threat of force by exposure of a weapon and the taking of property from Alricson's person or presence. In contrast, Counts I and II referred to the thefts as the disposal of the stolen items at different times. The relevant facts were the actual disposal of stolen property on specific dates to an undercover detective.

During the change of plea hearing, the court elicited Tomomitsu's admission to his display of the gun to Alricson and the taking of the property, the bases for the robbery charge. The colloquy between Tomomitsu, the court, and attorneys confirmed the sale of the camera equipment and watch at different times and apparently at a place other than that of the robbery. Hence, the criminal acts of the robbery and each theft were supported by different factual evidence and separated by time and space.

C.

Martin v. Commonwealth, 273 S.E.2d 778 (Va. 1981) is similar. There the defendant argued that his convictions for both robbery and petit larceny constituted a violation of the double jeopardy clause. Id. at 779. The Virginia Supreme Court held that the double jeopardy clause of both the United States and Virginia Constitutions did not apply to prevent the prosecution or conviction of multiple offenses when "the offenses are based upon distinct and separate acts." Id. at 780.

In Martin, the defendant drove his automobile into a station and directed the attendant to fill the gas tank. Id. at 779. After the attendant completed filling the gas tank, the defendant displayed a shotgun and ordered the attendant to "give me all your money." Id. The attendant, thereafter, gave the defendant the money in his pockets. The defendant also obtained money from inside a refrigerator in the station building. Id. at 779-80. The defendant was charged with robbery of the attendant and grand larceny of the station owner for the money taken from the refrigerator. Id. at 780.

The Virginia Supreme Court held that the defendant's conviction for both robbery and theft did not violate the double jeopardy clauses because the offenses did not occur at the same time and "involved two separate and distinct acts of caption ⁽⁵⁾ and two different acts of asportation." Id. at 781. It reasoned that "the robbery outside the station was complete and the theft underlying that offense ended the moment the defendant picked up the money [that the attendant] had dropped." Id. at 782. The larceny inside the station and the theft underlying that offense began and ended with the removal from the refrigerator of the money concealed therein." Id. Therefore, convicting the defendant of the two offenses did not violate the double jeopardy clauses because the convictions were "based upon distinct and separate acts and did not involve the same theft." Id.

In State v. Ford, 738 A.2d 937 (N.H. 1999), the defendant was convicted of one count of robbery and two counts of theft. Id. at 939. The Supreme Court of New Hampshire noted that double jeopardy is implicated "only if [a defendant] is charged with both offenses deriving from the same criminal act[.]" Id. at 944. The appellate court held that there were two distinct criminal acts involving different property which were separated in time and space. Id. at 944-45. It reasoned that the defendant "committed theft when he removed or ordered remov[al of the] diamond and sapphire from the store display case[.] Id. at 945. "He then committed robbery when he threatened the clerk with a gun and demanded her bracelet and pendant." Id.

D.

Tomomitsu's convictions here did not constitute multiple punishment for the same crime. Tomomitsu's thefts in selling the stolen items to undercover police at different times and at another place was not the same form of theft underlying the robbery of Alricson. The theft element of the robbery occurred when Tomomitsu took or acquired the items by using or threatening to use force. In contrast, the theft charges in Counts I and II involved Defendant's acts of disposing of the items through sales to undercover police at later times, and at another place. Each charged offense, therefore, rested on distinct and separate acts and one offense was not premised upon the occurrence or existence of the other offense. If "the State were attempting to rely on the same physical act as constituting two statutory offenses the question" of an included offense would arise. Pia, 55 Haw. at 17-18, 514 P.2d at 584 (emphasis in original). That is not the case here since the operative facts at the change of plea hearing on Counts I and II were separate sales of stolen property, as evidenced by the crimes having been alleged in the indictment as occurring on two different days.

Thus Tomomitsu's convictions did not violate either the federal or state prohibitions against double jeopardy. As there was no double jeopardy violation, Tomomitsu was not punished thrice for the same conduct by being convicted of the robbery and thefts.

V.

Tomomitsu also urges that the robbery and theft offenses should have been merged because they constituted a

continuing crime. In State v. Martin, 62 Haw. 364, 616 P.2d 193 (1980), the Hawaii Supreme Court ruled that in determining whether there is a continuing crime, the applicable test is

"whether the evidence discloses one general intent or discloses separate and distinct intents." . . . [I]f "there is but one intention, one general impulse, and one plan, even though there is a series of transactions, there is but one offense."

Id. at 368, 616 P.2d at 196 (quoting People v. Howes, 99 Cal. App. 2d 808, 818-19, 222 P.2d 969, 976 (1950)).

In State v. Vinge, 81 Hawaii 309, 916 P.2d 1210 (1996), the Hawaii Supreme Court held that the charges of attempted theft in the first and second degrees were included offenses of robbery in the first degree. Id. at 320, 916 P.2d at 1221. However, it pointed out, citing from Pia, as we have previously, that "where two different criminal acts are at issue, supported by different factual evidence, even though separated in time by only a few seconds, one offense cannot be included in the other." Id. (citations omitted); see also Pia, 55 Haw. at 19, 514 P.2d at 584-85.

In Vinge, the defendant threatened an officer with a machete while attempting to steal guns and ammunition from a sports store. Id. at 319-20, 916 P.2d at 1220-21. The supreme court ruled that the attempted theft charges were included in the robbery charge. Id. at 320, 916 P.2d at 1221. It did so because it concluded that the defendant "acted with only one general intent . . . [and his] threat to use the machete arose . . . [during] his attempt to steal, [and, therefore,] was continuous and not separated in time as to constitute a separate criminal act." Id.; see also State v. Correa, 5 Haw. App. 644, 649, 706 P.2d 1321, 1325 (1985) (stating that "a kidnapping that is necessarily and incidentally committed during a robbery cannot be the basis of a charge of kidnapping in addition to a charge of robbery").

In the present case, the robbery and thefts were not part of a continuing crime, but rather separate and distinct acts not related in time or place. The robbery of the camera equipment and wristwatch from Alricson's person or presence occurred on February 19, 1981. Tomomitsu then sold the camera equipment on February 19, 1981, obviously at a later time than the robbery, and the wristwatch on February 25, 1981, both to a police storefront fence operation at Brewer's Liquors, a location apparently different from that where the robbery took place. ⁽⁶⁾

Unlike in Vinge, there are no facts to indicate Tomomitsu acted with one general intent. In Vinge, the robbery and attempted theft occurred contemporaneously; Tomomitsu sold the items after completing the robbery and, hence, exhibited "separate and distinct intents[.]" Id. at 319, 916 P.2d 1220. The time lapses from the robbery on February 19 to the sale of the camera equipment and later of the watch on February 25 at Brewer's Liquors demonstrate that the robbery and thefts did not constitute one continuous, uninterrupted criminal act.

Neither the indictments, plea form, nor the colloquy before the court at the change of plea hearing suggest that the sales were the same acts which constituted the theft element of the robbery charge. The prosecutor noted that "[a]fter [Tomomitsu and his friend] had relieved [Alricson] of his camera equipment and wrist watch . . . Tomomitsu and his friend . . . sold those items to an undercover detective." (Emphases added). As pointed out previously, Tomomitsu agreed to this description of the crimes. Considering the time, place, and circumstances of the events, the offenses were not part of a single and continuous crime, but separate and distinct acts.

VI.

Tomomitsu's final pertinent contention on appeal is that he was punished twice for the same offense in violation of HRS § 701-109. He maintains that the "theft charges meet the requirements for a lesser included offense according to H.R.S. Section 701-109(4)(a)[.]"

HRS § 701-109 provides in relevant part:

Method of prosecution when conduct establishes an element of more than one offense. (1) When the same conduct of a defendant may establish an element of more than one offense, the defendant may be prosecuted for each offense of which such conduct is an element. He may not, however, be convicted of more than one offense if:

(a) One offense is included in the other, as defined in subsection (4) of this section;

. . . .

(4) A defendant may be convicted of an offense included in an offense charged in the indictment or the information. An offense is so included when:

(a) It is established by proof of the same or less than all the facts required to establish the commission of the offense charged; . . . ⁽⁷⁾

(Emphases added).

As discussed above, the offenses charged and admitted to did not relate to the "same conduct." Of course, the underlying theft in a robbery would be "included" in the robbery offense. However, such is not the case where, as here, the robbery and charged thefts were separate criminal acts. Vinge, 81 Hawaii at 319, 916 P.2d 1220.

VII.

For the foregoing reasons, I would affirm Tomomitsu's convictions for theft in the first degree and in the second degree.

SIMEON R. ACOBA, JR.

Associate Judge

1. The Fifth Amendment to the United States Constitution provides in relevant part: "No person . . . shall be subject for the same offence to be twice put in jeopardy of life or limb[.]" Article I, section 10 of the Hawaii Constitution provides in relevant part: "No person . . . shall be subject for the same offense to be twice put in jeopardy[.]"

2. In Blockburger v. United States, 284 U.S. 299 (1932), the United State's Supreme Court established the Blockburger "same elements"

test, which provides that

where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.

Id. at 304 (emphasis added).

3. Under the "same conduct" test, "'prosecution of [a] charge is barred if the State, to establish the conduct element of [that offense], will prove acts of the defendant on which the State relied to prove the conduct element of [another] offense for which [the defendant] had already been prosecuted.'" State v. Ake, 88 Hawaii 389, 393, 967 P.2d 221, 225 (1998) (quoting State v. Lessary, 75 Haw. 446, 460, 865 P.2d 150, 157 (1994)).

4. The "same elements" test provides that to determine whether "same act or transaction" are two distinct offenses or only one, the test is "whether each [statutory] provision requires proof of a fact which the other does not." Blockburger, 284 U.S. at 304 (emphasis added).

In State v. Caprio, 85 Hawaii 92, 937 P.2d 933 (App. 1997), this court noted that in Lessary, the Hawaii Supreme court did not indicate that the "same conduct" test was applicable to multiple punishment cases, but rather concluded that the "same conduct" test was applicable to successive prosecution situations. Caprio, 85 Hawaii at 102, 937 P.2d at 943 (citing Lessary, 75 Haw. at 459, 865 P.2d at 156). This court then stated that the appropriate test for a multiple punishment situation was the Blockburger "same elements" test and "add[ed] thereto a requirement that the law defining each of the offenses is intended to prevent a substantially different harm or evil." Id. at 103, 937 P.2d at 943-44 (internal quotation marks and citation omitted).

I disagree that the appropriate test includes the additional requirement. The reference to "substantially different harm or evil" is taken from HRS § 701-111(a)(c)(i) which I consider pertinent only to a statutory claim under HRS § 701-111 and not to a constitutional claim based on the double jeopardy clause.

5. "Caption" is defined as "the act of taking or seizing." Webster's 3rd New International Dictionary 334 (1981).

6. The record is devoid of specific information concerning the actual location of the robbery but obviously the robbery and sales did not take place at the same time in the same place.

7. Obviously, different facts are required to prove the elements of robbery and of dual degrees of the thefts.