APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT (CR. NO. 07-1-0635(4))
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER
SUMMARY DISPOSITION ORDER
(By: Nakamura, Chief Judge, Leonard and Ginoza, JJ.)
In this interlocutory appeal, Defendant-Appellant Terrance E. Atwood (Atwood) appeals from the Findings of Fact, Conclusions of Law, and Order Denying Defendant's Motion to Dismiss Count One (Order Denying Dismissal), filed on December 16, 2009, in the Circuit Court of the Second Circuit (Circuit Court).*fn1
In an Indictment filed on October 12, 2007, Atwood was charged with two counts, including Theft in the First Degree, by deception, in violation of Hawaii Revised Statutes (HRS) § 708- 830.5(1) (a) (Supp. 2010), and with intent to deprive the complainant of property, the value of which exceeded $20,000.00 (Count One), as follows:
That during or about the period of May 14, 2006, through February 26, 2007, inclusive, in the Court of Maui, State of Hawaii, TERRANCE E. ATWOOD did obtain or exert control over the property of another, to wit, Jenwei Luu and My Thi Do, to wit, United State [sic] Currency, the value of which exceeded Twenty Thousand Dollars ($20,000.00), by deception and with the intent to deprive Jenwei Luu and My Thi Do of the property, thereby committing the offense of Theft in the First Degree in violation of Section 708- 830.5 (1) (a) of the Hawaii Revised Statutes.
On October 28, 2009, Atwood filed a motion to dismiss Count One. After a hearing, the Circuit Court denied Atwood's motion and issued the Order Denying Dismissal. Atwood was permitted to file this interlocutory appeal. In his points of error on appeal, Atwood contends the Circuit Court erred in denying his motion to dismiss Count One because: (1) the Circuit Court failed to consider or require the mens rea necessary for theft by deception; and (2) the testimony provided to the grand jury was insufficient to establish probable cause because the evidence failed to establish the mens rea necessary for theft by deception. Atwood also contends that contractors are regulated pursuant to HRS Chapters 436, 436B, and 444, and, therefore, should not be criminally prosecuted under the Hawaii Penal Code for Theft in the First Degree for activities subject to such regulation.
Upon careful review of the record and the briefs submitted by the parties and having given due consideration to the arguments advanced and the issues raised by the parties, we resolve Atwood's contentions as follows:
The applicable standard for our review is as follows:
A grand jury indictment must be based on probable cause. Probable cause is established by a state of facts as would lead a person of ordinary caution or prudence to believe and conscientiously entertain a strong suspicion of the guilt of the accused.
In reviewing the sufficiency of the evidence to establish probable cause before the grand jury, every legitimate inference that may be drawn from the evidence must be drawn in favor of the indictment and neither the trial court nor the appellate court on review may substitute its judgment as to the weight of the evidence for [that of] the Grand Jury.
The evidence to support an indictment need not be sufficient to support a conviction.
State v. Yip, 92 Hawaii 98, 105, 987 P.2d 996, 1003 (App. 1999) (internal quotation marks and citations omitted). HRS ...