TO THE INTERMEDIATE COURT OF APPEALS (CAAP-14-0000061; CR.
RECKTENWALD, C.J., NAKAYAMA, McKENNA, AND POLLACK, JJ., WITH
CIRCUIT JUDGE CRANDALL, IN PLACE OF WILSON, J., RECUSED,
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.
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.
Faamama's judgment of conviction is vacated and the case
remanded for a new trial.
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) and 708-830(2) .
trial,  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
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.
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
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.
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.
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.
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
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
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
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.
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.
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.
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
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.
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, ...