NO. CAAP IN THE INTERMEDIATE COURT OF APPEALS OF THE STATE OF HAWAI I ) ) ) ) ) ) ) ) ) ) ) ANSWERING BRIEF OF THE STATE OF HAWAI I.

Transcription

1 NO. CAAP IN THE INTERMEDIATE COURT OF APPEALS OF THE STATE OF HAWAI I Electronically Filed Intermediate Court of Appeals CAAP APR :04 PM STATE OF HAWAI I, Plaintiff-Appellee, vs. SUSAN CHIN, Defendant-Appellant. CRIMINAL NO APPEAL FROM THE JUDGMENT OF CONVICTION AND SENTENCE; NOTICE OF ENTRY filed herein on July 19, 2013 FIRST CIRCUIT COURT HONORABLE KAREN S.S. AHN JUDGE ANSWERING BRIEF OF THE STATE OF HAWAI I and CERTIFICATE OF SERVICE KEITH M. KANESHIRO 2027 Prosecuting Attorney SONJA P. MCCULLEN 7795 Deputy Prosecuting Attorney City and County of Honolulu 1060 Richards Street Honolulu, Hawai i Telephone: ( smccullen@honolulu.gov Attorneys for State of Hawai i Plaintiff-Appellee

2 TABLE OF CONTENTS Page I. STATEMENT OF THE CASE... 2 A. Factual Background... 2 B. Procedural Background... 7 II. STANDARDS OF REVIEW... 9 A. Motion For Judgment Of Acquittal... 9 B. Motion For New Trial... 9 III. ARGUMENT... 9 A. The Circuit Court Properly Denied Chin s Motion For Judgment Of Acquittal Based on the evidence adduced, a reasonable mind could fairly conclude that Chin exerted unauthorized control over more than $20,000 with an intent to deprive Katherine of that money Based on the evidence adduced, a reasonable mind could fairly conclude that Chin used Gail to conceal or disguise ownership of more than $8,000 of proceeds from the sale of Katherine s home Based on the evidence adduced, a reasonable mind could fairly conclude that moving $8,834 from the Chin and Yuk APFCU Account x539 concealed or disguised ownership of more than $8,000 of proceeds from the sale of Katherine s home B. The Circuit Court Did Not Abuse Its Discretion In Denying Chin s Motion For A New Trial The May 24, 2013 transcripts are not in the record on appeal i

3 2. Chin failed to make a prima facie showing of a deprivation that could substantially prejudice her right to a fair trial by an impartial jury IV. CONCLUSION V. STATEMENT OF RELATED CASES CERTIFICATE OF SERVICE ii

4 TABLE OF AUTHORITIES Page CASES State v. Amorin 58 Haw. 623, 574 P.2d 895 ( State v. Bailey 126 Hawai i 383, 271 P.3d 1142 ( , State v. Barros 98 Hawai i 337, 48 P.3d 584 ( State v. Cordeiro 99 Hawai i 390, 56 P.3d 692 ( State v. Furutani 76 Hawai i 172, 873 P.2d 51 ( State v. Hoang 93 Hawai i 333, 3 P.3d 499 ( State v. Keawe 107 Hawai i 1, 108 P.3d 304 ( , 15, 18, 21 State v. Pulse 83 Hawai i 229, 925 P.2d 797 ( State v. Torres 125 Hawai i 382, 262 P.3d 1006 ( State v. Williamson 72 Haw. 97, 807 P.2d 593 ( CONSTITUTIONS Article I, section 14 of the Hawai i Constitution Sixth amendment to the United States Constitution RULES Hawai i Rules of Appellate Procedure Rule 10(b(1(A Rule 28(b(4(C iii

5 Hawai i Revised Statutes STATUTES Section (1(a and (c ( Section ( Section (1 (Supp , 10 Section (1(a (Supp , 11 Section (1 ( , 15 Section 708A-3(1(a(ii and (4(b (Supp , 17, iv

6 ANSWERING BRIEF OF THE STATE OF HAWAI I Defendant-Appellant Susan Chin appeals from the July 19, 2013 judgment and sentence of the Circuit Court of the First Circuit, the Honorable Karen Ahn presiding, convicting her of: (1 one count of Theft in the First Degree, in violation of Hawai i Revised Statutes (HRS (1(a and (1 (Supp (Count 1; and (2 two counts of Money Laundering, in violation of HRS 708A- 3(1(a(ii and (4(b (Supp (Counts 4 and 6. Judiciary Electronic Filing and 1 HRS (1(a provides that [a] person commits the offense of theft in the first degree if the person commits theft... [o]f property or services, the value of which exceeds $20,000[.] HRS (1 provides that [a] person commits the offense of theft if the person... [o]btains or exerts unauthorized control over property. A person obtains or exerts unauthorized control over the property of another with intent to deprive the other of the property. 2 HRS 708A-3(1(a(ii provides as follows: (1 It is unlawful for any person: (a Who knows that the property involved is the proceeds of some form of unlawful activity, to knowingly transport, transmit, transfer, receive, or acquire the property or to conduct a transaction involving the property, when, in fact, the property is the proceeds of specified unlawful activity:.... (ii Knowing that the transportation, transmission, transfer, receipt, or acquisition of the property or the transaction or transactions is designed in whole or in part to: (AConceal or disguise the nature, the location, the source, the ownership, or the control of the proceeds of specified unlawful activity[.]

7 Service System (JEFS Docket Number [hereinafter Dkt. No.] 14 at On appeal, Chin raises the following points of error: (1 [t]he trial court erred by denying [her] Motion for Judgment of Acquittal... [;] and (2 [t]he trial court erred when it failed to grant [her] a new trial after it learned that the foreperson of the jury had communicated with [her] chief witness during trial. 4 Dkt. No. 42 at 18, 25. Chin s points, however, are without merit because the circuit court did not err in denying Chin s motion for a judgment of acquittal and the circuit court did not abuse its discretion in denying her motion for new trial. As such, the State respectfully requests that this Honorable Court affirm Chin s convictions. I. STATEMENT OF THE CASE A. Factual Background James and Katherine Ganeko were married for almost fifty years when James passed away in March Transcript of proceedings (Tr. 3/20/13 Dkt. No. 36 at After James passing, Katherine, an 86-year-old retiree, lived alone in the couple s mortgage-free Halawa Drive home and received approximately $3,000 HRS 708A-3(1(a(ii (some formatting omitted. This section shall not apply to any person who commits any act described in this section unless... [t]he value or the aggregate value of the property transported, transmitted, transferred, received, or acquired is $8,000 or more. HRS 708A-3(4(b. 3 The cited page numbers in JEFS documents are the Portable Document Format (PDF page numbers. 4 Chin raises a third point of error alleging that the evidence in the case failed to establish beyond a reasonable doubt [her] guilt as to counts 1, 4, and 6. Because this point of error supports her first point of error, the State will address these points together. Dkt. No. 42 at 18, 25. 2

8 per month in retirement benefits. Tr. 3/20/13 Dkt. No. 36 at 14, 17, On April 23, 2010, approximately seven weeks after James death, Katherine executed a durable power of attorney appointing her niece, Sharon Ibara (Sharon as her agent and Sharon s husband, Randy Ibara (Randy, as an alternate. Tr. 3/20/13 Dkt. No. 36 at 24-25; Dkt. No. 52 at Katherine said she chose Sharon because [s]he was the closest to me[.] Tr. 3/20/13 Dkt. No. 36 at 25. Katherine later moved to Hawaii Kai to live with Chin, a friend of Katherine s neighbor, Charles Bowen (Bowen. Tr. 3/19/13 Dkt. No. 35 at 93; Tr. 3/20/13 Dkt. No. 36 at 22, 33. On February 17, 2011, Katherine revoked the power of attorney appointing Sharon and Randy, and executed a new power of attorney appointing Chin as her agent. Dkt. No. 52 at According to Katherine, it was Chin s idea to execute the new power of attorney. Tr. 3/20/13 Dkt. No. 36 at Ten days later, on February 27, 2011, Chin ed a realtor named Debbie Young (Young. Dkt. No. 52 at In that , Chin informed Young that she had power of attorney and complete financial contrl, and then stated I was thinking about liquidating her house (aiea & putting her in an assisted living... ie... Puhinani, Craigside or etc... can u pls me an MLS on wht her house is worth and if need b, can u sell it fr me, maybe ASAP? Her address is: Halawa Drive[.] Dkt. No. 52 at 661 (ellipses, spelling, and formatting in original. On February 28, 2011, Katherine closed the bank account she shared with James for thirty years at First Hawaiian Bank (FHB [hereinafter the James and Katherine FHB Account x530]. Dkt. No. 52 at 140, 143. On that same day, 3

9 Katherine and Chin opened a joint account at FHB [hereinafter the Katherine and Chin FHB Account x804]. Dkt. No. 52 at 159. The money from the James and Katherine FHB Account x530, as well as other money from Katherine, funded the Katherine and Chin FHB Account x804. Dkt. No. 52 at ; Tr. 3/20/13 Dkt. No. 36 at 28. According to Katherine, it was Chin s idea to close the James and Katherine FHB Account x530 and open the Katherine and Chin FHB Account x804. Tr. 3/20/13 Dkt. No. 36 at 28, 35. By April 2011, Katherine s house was on the market and was sold on June 3, Dkt. No. 52 at 89, After expenses, $605, was deposited into the Katherine and Chin FHB Account x804. Dkt. No. 52 at , 175. Three days after the proceeds from the sale of Katherine s home were deposited into the Katherine and Chin FHB Account x804, Chin wrote three checks of $200, each. Dkt. No. 52 at The first check was payable to Chin s older son, Minor E.M.C., for $200,000. Dkt. No. 52 at 178. That check was deposited into an Aloha Pacific Federal Credit Union (APFCU Account held jointly by Minor E.M.C. and Chin [hereinafter the Minor E.M.C. and Chin APFCU Account x389]. Dkt. No. 52 at 189, The second check was payable to Chin s younger son, Minor D.M.C., for $200,000. Dkt. No. 52 at 179. That check was deposited into an APFCU Account held jointly by Minor D.M.C. and Chin [hereinafter the Minor D.M.C. and Chin APFCU Account x392]. Dkt. No. 52 at 209,

10 The third check was payable to Katherine in the amount of $200,000. Dkt. No. 52 at 180. That check was deposited into two accounts. The first $100,000 went into an APFCU Account held jointly by Chin and Katherine [hereinafter the Chin and Katherine APFCU Account x383]. Dkt. No. 52 at 306, The other $100,000 went into an APFCU Account held jointly by Chin and Chin s mother, Yuk Fong Chin (Yuk [hereinafter the Chin and Yuk APFCU Account x539]. Dkt. No. 52 at 225, 271, Following the sale of Katherine s home, Katherine and Chin went to New York. Tr. 3/19/13 Dkt. No. 35 at ; Tr. 3/20/13 Dkt. No. 36 at 47. Statements for the Chin and Katherine APFCU Account x383 show transactions in New York from June 12, 2011 to August 9, Dkt. No. 52 at , 345; Tr. 3/19/13 Dkt. No. 35 at Also based on these statements, it appears that Chin and Katherine returned to Honolulu by August 9, Dkt. No. 52 at 345. When Chin and Katherine arrived at the Honolulu International Airport, Katherine s grandniece, Nicole Ornelas (Nicole, was there to take Katherine home with her. Tr. 3/19/13 Dkt. No. 35 at 207. Nicole testified that her aunt Sharon had asked her to go to the airport to pick up Katherine. Tr. 3/19/13 Dkt. No. 35 at 207. On August 9, 2011, Chin wrote a check from the Chin and Yuk APFCU Account x539 payable to Hawaii Schools Federal Credit Union for $8,834 to pay off her Mercedes. Dkt. No. 52 at 249, 481; Tr. 3/19/13 Dkt. No. 35 at 26. On August 14, 2011, Chin attempted to withdraw $200,000 from APFCU, but was told that the branch did not have such funds available. Tr. 3/19/13 Dkt. No. 35 at

11 On August 15, 2011, with Nicole s assistance, Katherine revoked the power of attorney held by Chin and executed another power of attorney appointing Nicole and her husband, Arturo Ornelas (Arturo, as her agents. Tr. 3/19/13 Dkt. No. 35 at 222; Dkt. No. 52 at Also on August 15, 2011, Katherine withdrew the remaining money, $76,237.85, from the Chin and Katherine APFCU Account x383. Dkt. No. 52 at 345, 349. On August 16, 2011, Chin returned to APFCU and asked to check on her accounts. Tr. 3/19/13 Dkt. No. 35 at Chin was pretty frantic and was saying [t]hey stole my money. Tr. 3/19/13 Dkt. No. 35 at 173. When the information on all her accounts was retrieved, Chin learned that Katherine withdrew the remaining funds from the Chin and Katherine APFCU Account x383. Tr. 3/19/13 Dkt. No. 35 at 174. Chin then called her sister, Gail Chin (Gail, to get the sister on the account with the kids. Tr. 3/19/13 Dkt. No. 35 at 176. The Minor E.M.C. and Chin APFCU Account x389 was then changed to remove Chin and add Gail as the joint owner. Dkt. No. 52 at 188; Tr. 3/19/13 Dkt. No. 35 at 38, 151, 177. The Minor D.M.C. and Chin APFCU Account x392 was also changed to remove Chin and add Gail as the joint owner. Dkt. No. 52 at 208; Tr. 3/19/13 Dkt. No. 35 at 38, 151, 177. Also on August 16, 2011, Chin filed a missing persons report with the Honolulu Police Department (HPD, declaring that Nicole rushed to take [Katherine] away from the airport. Dkt. No. 52 at 672. In this report, Chin stated that on August 15, 2011 they stole almost $80,000 from in total which $76,000 was 6

12 my personal prexsisting [sic] account. I am willing to presecute [sic] fully... $76,000 was my money from a prexisting [sic] account # and I did not give permittion [sic] to anyone to touch my money or Katherine Ganeko s money.... Dkt. No. 52 at (some ellipses in original. On August 30, 2011, HPD Lieutenant John McCarthy served a seizure warrant on APFCU, seizing the accounts held by Chin. Tr. 3/20/13 Dkt. No. 36 at B. Procedural Background On February 28, 2012, a grand jury indicted Chin for the following offenses: Count Offense HRS Sections Factual Basis Count 1 Theft in the First Degree (1(a and (1 Proceeds from the sale of Katherine s home Count 2 Theft in the First Degree (1(a and (1 Proceeds from the surrender of one annuity Count 3 Theft in the First Degree (1(a and (1 Proceeds from two additional annuities Count 4 Money Laundering 708A-3(1(a(ii and 708A-3(4(b Aloha Pacific Credit Union accounts ending in x389 and x392 Count 5 Money Laundering 708A-3(1(a(ii and 708A-3(4(b Transfer of Count 2 annuity proceeds Count 6 Money Laundering 708A-3(1(a(ii and 708A-3(4(b Paying money toward a car loan Dkt. No. 14 at A jury trial commenced on March 15, See generally Tr. 3/15/13 Dkt. No. 20. After the State presented and rested its case-in-chief, Chin moved for a judgment of acquittal on all counts. Tr. 3/21/13 Dkt. No. 37 at 3. The circuit court took Counts 3 and 4 under advisement, and denied Chin s motion as to 7

13 the remaining counts. Tr. 3/21/13 Dkt. No. 37 at 15. Young, Bowen, Michael Lum, Robert Yeszerk, Charlotte Lum, and Minor E.M.C. testified for the defense, and Chin exercised her right not to testify. Tr. 3/21/13 Dkt. No. 37 at After the defense rested, the circuit court denied Chin s renewed motion for a judgment of acquittal. Tr. 3/21/13 Dkt. No. 37 at 140, 161; Tr. 3/22/13 Dkt. No. 38 at 6. On April 8, 2013, the jury found Chin guilty on Counts 1, 4, and 6, not guilty on Count 3, and were hung on Counts 2 and 5. Dkt. No. 14 at 29. The circuit court then released the jury from service. Dkt. No. 14 at 30, 154. On April 17, 2013, Chin moved the circuit court for a new trial arguing that the foreperson s improper communication with [her] witness was in violation of [her] right to a fair and impartial trial, thereby rendering the jury s verdict void. Dkt. No. 14 at 158, 164 (formatting omitted. On May 24, 2013, the circuit court held a hearing on Chin s motion and, on June 5, 2013, the circuit court entered its findings of fact, conclusions of law, and order denying Chin s motion for new trial. Dkt. No. 14 at 30, 181. On July 19, 2013, the circuit court entered its judgment of conviction and sentenced Chin to a ten-year term of imprisonment for each of Counts 1 and 4, and a five-year term of imprisonment for Count 6, all terms to run concurrently. Dkt. No. 14 at 203. The circuit court also issued a free standing order of restitution in the amount of $523, less any amounts paid and/or recovered from accounts and/or law enforcement. Dkt. No. 14 at 203 (emphasis omitted. Chin filed a timely notice of appeal. See generally Dkt. No. 1. 8

14 A. Motion For Judgment Of Acquittal II. STANDARDS OF REVIEW Hawai i appellate courts have repeatedly stated that The standard to be applied by the trial court in ruling upon a motion for a judgment of acquittal is whether, upon the evidence viewed in the light most favorable to the prosecution and in full recognition of the province of the [trier of fact], a reasonable mind might fairly conclude guilt beyond a reasonable doubt. An appellate court employs the same standard of review. State v. Keawe, 107 Hawai i 1, 4, 108 P.3d 304, 307 (2005 (citations omitted and brackets in the original. B. Motion For New Trial [A] trial court s decision on a motion for new trial or a motion for mistrial is reviewed for abuse of discretion. State v. Bailey, 126 Hawai i 383, 398, 271 P.3d 1142, 1157 (2012. III. ARGUMENT A. The Circuit Court Properly Denied Chin s Motion For Judgment Of Acquittal In her points of error, Chin contends that [t]he trial court erred by denying [her] Motion for Judgment of Acquittal after close of the prosecution s case[.] Dkt. No. 42 at 18. Specifically, Chin posits that [t]he evidence in the case failed to establish beyond a reasonable doubt [her] guilt as to counts 1, 4, and 6. Dkt. No. 42 at 25. Based on the evidence adduced, viewed in the light most favorable to the prosecution and in full recognition of the province of the trier of fact, a reasonable mind might fairly conclude guilt beyond a reasonable doubt as to Counts 1, 4, and 9

15 6. Keawe, 107 Hawai i at 4, 108 P.3d at 307 (citations and brackets omitted. Thus, Chin s contentions are without merit. 1. Based on the evidence adduced, a reasonable mind could fairly conclude that Chin exerted unauthorized control over more than $20,000 with an intent to deprive Katherine of that money Chin first contends that even taking the evidence in a light most favorable to the State there was insufficient evidence to find [her] guilty of Count 1[.] Dkt. No. 42 at 26 (formatting omitted. To support this contention, Chin posits that [t]he State failed to prove any theft of money as to Count 1. Dkt. No. 42 at 27. In the alternative, Chin argues that the power of attorney has a ratification provision, which provides for ratification of all acts of the agent and [a]t best there is questionably a misapplication of entrusted property citing to HRS Dkt. No. 42 at Contrary to Chin s contention, a reasonable mind could fairly conclude that Chin obtained or exerted unauthorized control over property that exceeded $20,000 based on the evidence adduced. Moreover, the power of attorney document did not ratify Chin s act of giving $500,000 to her sons and mother and HRS is inapplicable. A person commits the offense of theft if the person... [o]btains or exerts unauthorized control over property. A person obtains or exerts unauthorized control over the property of another with intent to deprive the other of the property. 5 HRS (1. A person commits the offense of theft in the first 5 The following HRS chapter 708 definitions are applicable: 10

16 degree if the person commits theft... [o]f property or services, the value of which exceeds $20,000[.] HRS (1(a. Here, Chin was charged with Theft in the First Degree as related to the alleged theft of the proceeds from the sale of Katherine Ganeko s residence. Dkt. No. 14 at During trial, the State adduced evidence that Chin exerted unauthorized control over the proceeds from the sale of Katherine s home. Katherine sold her home and the proceeds, $605,114.67, were wired into the Katherine and Chin FHB Account x804. Dkt. No. 52 at 89-92; ; 175. Three days after the proceeds of Katherine s home were deposited, Chin moved $200,000 into the Minor E.M.C. and Chin APFCU Account x389, $200,000 into the Minor D.M.C. and Chin APFCU Account x392, and $100,000 into the Chin and Yuk Deprive means... [t]o sell, give, pledge, or otherwise transfer any interest in the property; or... [t]o subject the property to the claim of a person other than the owner. Obtain means... [w]hen used in relation to property, to bring about a transfer of possession or other interest, whether to the obtainer or to another[.] Owner means a person, other than the defendant, who has possession of or any other interest in, the property involved.... Property means any money.... Property of another means property which any person, other than the defendant, has possession of or any other interest in.... Unauthorized control over property means control over property of another which is not authorized by the owner. HRS (1993 (some quotation marks omitted. 11

17 APFCU Account x539. Dkt. No. 52 at , 189, , 209, , 225, 271, By doing so, Chin deprived Katherine of any access to $500,000 of proceeds from the sale of her home, and transferred that money to her sons and mother. The State also adduced evidence that Katherine did not authorize Chin to give $500,000 of proceeds from the sale of her home to Chin s sons and mother. On direct examination, Katherine testified as follows: [Deputy Prosecuting Attorney (DPA:] Okay. Now did you ever say to Susan Chin that she could give $200,000 to her son [Minor E.M.C.]? [Katherine:] No..... [DPA:] Did you ever -- did, um -- did you ever tell Susan Chin that she could give [Minor D.M.C.] $200,000? [Katherine:] No..... [DPA:] Okay. Did you ever say to Susan Chin that she could give her mother $100,000? [Katherine:] No, I didn t. Tr. 3/20/13 Dkt. No. 36 at See State v. Pulse, 83 Hawai i 229, 244, 925 P.2d 797, 812 (1996 (explaining that [t]he testimony of one percipient witness can provide sufficient evidence to support a conviction. Finally, the State adduced evidence that Chin intended to deprive Katherine of that $500,000. The checks written to Minor E.M.C. and Minor D.M.C. were 12

18 signed by Chin. The check written to Katherine, $100,000 of which were deposited into the Chin and Yuk APFCU Account x539, was also signed by Chin. Tanny Waters (Waters, Branch Manager at APFCU, testified that Chin went into the Hawaii Kai branch to deposit these three checks on June 6, Tr. 3/19/13 Dkt. No. 35 at Waters testified that, while depositing the checks, Chin explained that the money was proceeds from the sale of a home and [t]hat the funds were a gift to her children from Katherine. Tr. 3/19/13 Dkt. No. 35 at From these acts, the jury could infer that it was Chin s conscious object to deprive Katherine of $500,000 and to transfer that $500,000 to Minor E.M.C., Minor D.M.C., and Yuk. See HRS (1(a and (c (1993 (providing that [a] person acts intentionally with respect to his conduct when it is his conscious object to engage in such conduct and [a] person acts intentionally with respect to a result of his conduct when it is his conscious object to cause such a result. Thus, based on the evidence adduced, a reasonable mind could fairly conclude that Chin obtained or exerted unauthorized control of more than $20,000 with an intent to deprive Katherine of that money. Chin s arguments that the power of attorney has a ratification provision and that Katherine ratified [Chin s] acts by her actions in accepting the goods and services provided by [] Chin is without merit. The document appointing Chin with power of attorney provides, in relevant part, as follows: That I, KATHERINE K. GANEKO, of Halawa Drive, Aiea, City and County of Honolulu, State of Hawaii, do hereby appoint SUSAN CHIN, of 350 Ward Avenue, , Honolulu, Hawaii 96815, my true and lawful attorney, for me and in my 13

19 name, place and stead, and for my use and benefit, to do any and all of the following acts:.... (3 To withdraw moneys from all commercial and savings accounts standing in my name with any bank, savings or trust institution, and to endorse notes, checks, drafts or bills of exchange which may require my endorsement for deposit as cash or for collection;.... GIVING AND GRANTING unto my said attorney, SUSAN CHIN, full power and authority to do and perform any and all acts and deeds as fully and effectually to all intents and purposes as I might or could do if personally present, the powers enumerated above being in aid of the general powers herein granted and not in limitation thereof; and, hereby ratifying all that my said attorney shall lawfully do or cause to be done by virtue of these presents.... Dkt. No. 52 at (emphases added. As shown, the document does not give Chin unfettered reign over Katherine s money. The power of attorney allows Chin to withdraw moneys for Katherine s use and benefit and ratifies only what is lawfully done. Here, Chin s withdrawal of $500,000 of proceeds from the sale of Katherine s home and giving that money to her sons and mother was not for Katherine s use and benefit because Katherine had no access to the money and the record is devoid of any evidence that Minor E.M.C., Minor D.M.C., and Yuk were obligated to expend that money for Katherine s use and benefit. Inasmuch as the taking of that money was not for Katherine s use and benefit and Katherine did not authorize Chin to give $500,000 to Minor E.M.C., Minor D.M.C., and Yuk, Chin s 14

20 taking of $500,000 was not lawful and, thus, not ratified by the power of attorney document. Chin s argument that [a]t best there is questionably a misapplication of entrusted property is also without merit. Dkt. No. 42 at HRS (1 (1993 provides as follows: A person commits the offense of misapplication of entrusted property if, with knowledge that he is misapplying property and that the misapplication involves substantial risk of loss or detriment to the owner of the property or to a person for whose benefit the property was entrusted, he misapplies or disposes of property that has been entrusted to him as a fiduciary.... The Commentary on HRS explains that [i]n this context the misapplication is in terms of improper and reckless investment or handling of assets, rather than of outright theft. The commentary further explains that [m]isapplication in this context is not theft; there is no intent permanently to deprive the owner of the owner s property. Here, Chin did not improperly or recklessly invest Katherine s $500,000. Instead, Chin transferred the $500,000 to her sons and mother, depriving Katherine of any access to that money. Thus, HRS is inapplicable. In sum, based on the evidence adduced by the State, viewed in the light most favorable to the prosecution and in full recognition of the province of the trier of fact, a reasonable mind could fairly conclude that Chin exerted unauthorized control over more than $20,000 of proceeds from the sale of Katherine s home with the intent to deprive Katherine of that money. Keawe, 107 Hawai i at 4, 108 P.3d at 307. Moreover, the power of attorney document did not ratify Chin s act of giving 15

21 $500,000 to her sons and mother and HRS is inapplicable. The circuit court, thus, did not err in denying Chin s motion for judgment of acquittal on Count Based on the evidence adduced, a reasonable mind could fairly conclude that Chin used Gail to conceal or disguise ownership of more than $8,000 of proceeds from the sale of Katherine s home Chin next contends that there was no substantial evidence offered to find [her] guilty of Count IV[.] Dkt. No. 42 at 29 (formatting omitted. To support this contention, Chin posits that there was no theft or stolen monies. Dkt. No. 42 at Chin also posits that the change of name of the co-holder of the account did not in any way conceal or disguise the nature, location, source, ownership, or control of funds and that the subsequent change in the account holder s name did little to conceal or disguise the nature, location, source, ownership, or control of funds. Dkt. No. 42 at 31. Contrary to Chin s contention, a reasonable mind could fairly conclude that Chin used Gail to conceal or disguise more than $8,000 of proceeds from the sale of Katherine s. HRS 708A-3 provides, in relevant part, as follows: (1 It is unlawful for any person: (a Who knows that the property involved is the proceeds of some form of unlawful activity, to knowingly transport, transmit, transfer, receive, or acquire the property or to conduct a transaction involving the property, when, in fact, the property is the proceeds of specified unlawful activity:

22 (ii Knowing that the transportation, transmission, transfer, receipt, or acquisition of the property or the transaction or transactions is designed in whole or in part to: (AConceal or disguise the nature, the location, the source, the ownership, or the control of the proceeds of specified unlawful activity[.] HRS 708A-3(1(a(ii (some formatting omitted. This section shall not apply to any person who commits any act described in this section unless... [t]he value or the aggregate value of the property transported, transmitted, transferred, received, or acquired is $8,000 or more. HRS 708A-3(4(b. Here, as discussed supra in section III(A(1, the State adduced evidence that the $200,000 deposited into the Minor E.M.C. and Chin APFCU Account x389 and the $200,000 deposited into the Minor D.M.C. and Chin APFCU Account x392 resulted from Chin s theft of a portion of proceeds from the sale of Katherine s home. The State also adduced evidence that Chin removed her name and added Gail s name to these accounts to conceal or disguise the ownership or control of that money. Gerri Takayama (Takayama, APFCU Sales Associate, testified that, on August 16, 2011, Chin went into the Hawaii Kai branch asking to check on her accounts. Tr. 3/19/13 Dkt. No. 35 at 173. After Takayama explained that Katherine had withdrew the remaining funds from the Chin and Katherine APFCU Account x383, Chin was really frantic and upset. Tr. 3/19/13 Dkt. No. 35 at 176. Chin then said that she s going to call her sister and [s]o she called her sister down to get the sister on the account with the kids. Tr. 3/19/13 Dkt. No. 35 at

23 Takayama testified that she told [Chin] that s really not a good idea. Tr. 3/19/13 Dkt. No. 35 at 176. Takayama further testified that Chin s sister had to come down, you know, show her ID, the whole bit. So I started changing the account card. Tr. 3/19/13 Dkt. No. 35 at 176. The bank documents entered into evidence supports Takayama s testimony. The August interim statement for the Chin and Katherine APFCU Account x383 shows that Katherine withdrew $76, on August 15, Dkt. No. 52 at 345, The next day, on August 16, 2011, Chin removed her name as joint owner on the Minor E.M.C. and Chin APFCU Account x389 and added Gail s name. Dkt. No. 52 at Also on August 16, 2011, Chin removed her name as joint owner on the Minor D.M.C. and Chin APFCU Account x392 and added Gail s name. Dkt. No. 52 at When considering the changing of names on Minor E.M.C. s and Minor D.M.C. s APFCU accounts, viewed in the light most favorable to the prosecution and in full recognition of the province of the trier of fact, a reasonable mind could fairly conclude that Chin used Gail to [c]onceal or disguise the nature, the location, the source, the ownership, or the control of more than $8,000 of proceeds from the sale of Katherine s home. Keawe, 107 Hawai i at 4, 108 P.3d at 307; HRS 708A-3. The circuit court, thus, did not err in denying Chin s motion for judgment of acquittal as to Count 4. 18

24 3. Based on the evidence adduced, a reasonable mind could fairly conclude that moving $8,834 from the Chin and Yuk APFCU Account x539 concealed or disguised ownership of more than $8,000 of proceeds from the sale of Katherine s home Finally, Chin contends that there was insufficient evidence to find [her] guilty of Count VI. Dkt. No. 42 at 31 (formatting omitted. To support this contention, Chin posits that she needed the car to provide for Katherine and paying off the car loan can at best be considered a prudent investment, at worse an imprudent one. Dkt. No. 42 at 32 (formatting omitted. Chin concludes that there can be no argument that the payment of the car loan in anyway concealed or disguised the nature, location, source, ownership, or control of funds. Dkt. No. 42 at 32 (emphases omitted. Contrary to Chin s contention, a reasonable mind could fairly conclude that Chin s moving $8,834 from the Chin and Yuk APFCU Account x539 concealed or disguised ownership of more than $8,000 of proceeds from the sale of Katherine s home. As previously stated, HRS 708A-3 provides, in relevant part, as follows: (1 It is unlawful for any person: (a Who knows that the property involved is the proceeds of some form of unlawful activity, to knowingly transport, transmit, transfer, receive, or acquire the property or to conduct a transaction involving the property, when, in fact, the property is the proceeds of specified unlawful activity:.... (ii Knowing that the transportation, transmission, transfer, receipt, or acquisition of the property or the transaction or transactions is designed in whole or in part to: 19

25 (BConceal or disguise the nature, the location, the source, the ownership, or the control of the proceeds of specified unlawful activity[.] HRS 708A-3(1(a(ii (some formatting omitted. This section shall not apply to any person who commits any act described in this section unless... [t]he value or the aggregate value of the property transported, transmitted, transferred, received, or acquired is $8,000 or more. HRS 708A-3(4(b. As discussed supra in section III(A(1, the State adduced evidence that Chin s deposit of $100,000 into the Chin and Yuk APFCU Account x539 resulted from Chin s theft of a portion of the proceeds from the sale of Katherine s home. Dkt. No. 52 at 180, 271, On August 9, 2011, Chin wrote a check on the Chin and Yuk APFCU Account to Hawaii Schools FCU in the amount of $8,834 for Mer[c]edes Pay Off. Dkt. No. 52 at 249. By doing so, Chin moved $8,834 from the Chin and Yuk APFCU Account x539. A reasonable inference from moving this money is that the move was designed in whole or in part to... [c]onceal or disguise the nature, the location, the source, the ownership, or the control of more than $8,000 of proceeds from the sale of Katherine s home. Dkt. No. 52 at 249; HRS 701A-3(1(a(ii and (4(b. Chin s argument that she needed the car to provide for Katherine is disingenuous. On July 20-21, 2011, texts between Chin and Sharon included u wanna take her now and I told her she can not live w/ me anymore. Dkt. No. 52 at 528, When Chin and Katherine returned from New York, texts between Chin and Sharon included I see u sent help (Nik and Art... THNK U 20

26 SOOOOOOOOOOOOOO MUCH!!!!!! now I see u really love me... hahahaha flight was gd, sat white dud nxt to AK. Dkt. No. 52 at In addition, Nicole testified that Aunt Sharon [] asked me to go over there and, um, pick [Katherine] up from the airport. Tr. 3/19/13 Dkt. No. 35 at 207. Complying with Sharon s request, Nicole and Arturo went to the airport, met with Katherine and Chin, and took Katherine home with them. Tr. 3/19/13 Dkt. No. 35 at 208. Before Chin moved the $8,834 from the Chin and Yuk APFCU Account x539, she made clear that Katherine could not live with her anymore and she was aware that Katherine was with Nicole. In sum, based on the evidence adduced, viewed in the light most favorable to the prosecution and in full recognition of the province of the trier of fact, a reasonable mind could fairly conclude that Chin s moving $8,834 from the Chin and Yuk APFCU Account x539 was designed in whole or in part to... [c]onceal or disguise the nature, the location, the source, the ownership, or the control of more than $8,000 of proceeds from the sale of Katherine s home. Keawe, 107 Hawai i at 4, 108 P.3d at 307; HRS 701A-3(1(a(ii and (4(b. B. The Circuit Court Did Not Abuse Its Discretion In Denying Chin s Motion For A New Trial In her second point of error, Chin contends that [t]he trial court erred when it failed to grant [her] a new trial after it learned that the foreperson of the jury had communicated with [her] chief witness during trial. Dkt. No. 42 at 25. To support this point, Chin argues that the juror sought a favor from [her] witness Charles Bowen, which was not forthcoming and communicating with Mr. Bowen was 21

27 highly prejudicial warranting a new trial. Dkt. No. 42 at 34. Contrary to Chin s contention, the circuit court did not abuse its discretion in denying her motion for a new trial. 1. The May 24, 2013 transcripts are not in the record on appeal As an initial matter, the record on appeal as related to the circuit court s denial of Chin s motion for new trial is incomplete because the May 24, 2013 transcripts are not in the record on appeal. An appellant s burden of demonstrating error in the record is consistent with Hawaii s case law and court rules. State v. Hoang, 93 Hawai i 333, 336, 3 P.3d 499, 502 (2000. Court rules provide that When an appellant desires to raise any point on appeal that requires consideration of the oral proceedings before the court appealed from, the appellant shall file with the appellate clerk, within 10 days after filing the notice of appeal, a request or requests to prepare a reporter s transcript of such parts of the proceedings as the appellant deems necessary that are not already on file. Hawai i Rules of Appellate Procedure (HRAP Rule 10(b(1(A. Additionally, the Hawai i Supreme Court explained that [w]ithout the relevant transcript, there is insufficient evidence to review the alleged error, and [the defendant] carries the burden of demonstrating the alleged error in the record. Hoang, 93 Hawai i at 336, 3 P.3d at 502. In Hoang, the defendant failed to include the arraignment transcripts in the record on appeal. Id. at 335, 3 P.3d at 501. The defendant, however, argued that the transcript was not necessary to review his point regarding the oral charge because both parties agreed that he waived the reading of the 22

28 charge and the State failed to formally charge him. Id. The Hawai i Supreme Court explained that Every presumption that a court may rightfully entertain in a criminal cause is in favor of the record and the regularity of the proceedings of the trial court. The duty is incumbent on the petitioner alleging error to make the same manifest by bringing the record before the appellate court so as to disclose either that the things complained of were not done in the manner provided by law or were done in a manner prejudicial to the rights of the petitioner. We cannot presume error in the absence of the record. Id. at 336, 3 P.3d at 502 (citations omitted. The Court then held that [b]ecause we cannot verify the alleged error from the record in this case, and we will not presume error based on a silent record, the presumption that the trial court acted without error must prevail. Id. In this case, the minutes reflect that the circuit court held a hearing on Chin s motion for new trial on May 24, Dkt. No. 14 at 30. However, the record on appeal does not contain a transcript for that hearing. The record reflects that Chin made two requests for transcripts - one for the proceedings held on March 19-22, 2013 and one for the proceedings held on March 15, 2013 and July 19, Dkt. Nos. 6 and 8. The State could not locate any request for the proceedings held on May 24, Although the circuit court entered findings of fact and conclusions of law, without the transcript of the May 24, 2013 hearing on Chin s motion for new trial, the record as to Chin s second point of error is incomplete. Without a complete record, this Court should presume that the circuit court acted without error in denying Chin s motion for new trial. 23

29 2. Chin failed to make a prima facie showing of a deprivation that could substantially prejudice her right to a fair trial by an impartial jury Should this Court address the merits of Chin s second point of error, the circuit court did not abuse its discretion in denying Chin s motion for a new trial based on juror misconduct. The sixth amendment to the United States Constitution and article I, section 14 of the Hawai i Constitution guarantee the criminally accused a fair trial by an impartial jury. Bailey, 126 Hawai i at 399, 271 P.3d at However, not all juror misconduct necessarily dictates the granting of a new trial. A new trial will not be granted if it can be shown that the jury could not have been influenced by the alleged misconduct. State v. Furutani, 76 Hawai i 172, 180, 873 P.2d 51, 59 (1994 (citation omitted. The analytical framework in reviewing impartial jury challenges is as follows: When a defendant in a criminal case claims a deprivation of the right to a fair trial by an impartial jury, the initial step for the trial court to take is to determine whether the nature of the alleged deprivation rises to the level of being substantially prejudicial. If it does not rise to such a level, the trial court is under no duty to interrogate the jury. And whether it does rise to the level of substantial prejudice is ordinarily a question committed to the trial court s discretion. Where the trial court does determine that such alleged deprivation is of a nature which could substantially prejudice the defendant s right to a fair trial, a rebuttable presumption of prejudice is raised. The trial judge is then duty bound to further investigate the totality of circumstances surrounding the alleged deprivation to determine its impact on jury impartiality. The standard to be applied in overcoming such a presumption is that the alleged deprivation must be proved harmless beyond a reasonable doubt. The defendant bears the initial burden of making a prima facie showing of a deprivation that could substantially prejudice 24

30 his or her right to a fair trial by an impartial jury. But once a rebuttable presumption of prejudice is raised, the burden of proving harmlessness falls squarely on the prosecution. Bailey, 126 Hawai i at , 271 P.3d at (brackets omitted. Here, Chin failed to make a prima facie showing of a deprivation that could substantially prejudice his or her right to a fair trial by an impartial jury. Id. at 400, 271 P.3d at The circuit court found that [d]uring the hearing, counsel for [Chin] acknowledged that his motion was predicated solely on the declaration of Bowen, and that he had no other evidence to offer. Dkt. No. 14 at 183. Chin does not challenge this finding in the points of error section of her opening brief. See HRAP Rule 28(b(4(C (providing, in relevant part, that each point [of error] shall also include... when the point involves a finding or conclusion of the court or agency, either a quotation of the finding or conclusion urged as error or reference to appended findings and conclusions ; State v. Torres, 125 Hawai i 382, 398, 262 P.3d 1006, 1022 (2011 (noting that Petitioner did not challenge any of the findings of the court, and, therefore, such findings are binding on this court ; State v. Barros, 98 Hawai i 337, 343, 48 P.3d 584, 590 n.4 (2002 (noting that [i]f a finding is not properly attacked, it is binding; and any conclusion which follows from it and is a correct statement of law is valid. In examining Bowen s declaration, Bowen stated that [a]fter I testified I was approached in the men s room by a gentleman. He inquired about the possibility of employment and handed me a business card. Dkt. No. 14 at 160. Juror Mehrzad Soleymani (Soleymani was named on the business card attached to Bowen s 25

31 declaration. Dkt. No. 14 at 162. Bowen makes no other statements regarding Soleymani except to say that he never called or communicated any further with the juror after that encounter in the men s room[.] Dkt. No. 14 at Bowen s declaration did not indicate that Soleymani made any reference to the evidence in this case, the testimony of witnesses, Chin s guilt or innocence, or discussions with other jurors. In other words, Bowen s declaration regarding the bathroom encounter with Soleymani did not provide any evidence that the jury was biased. The circuit court also found Chin s argument that [t]he fact that Mr. Bowen did not respond to his advance may have had a significant inappropriate influence on the deliberative process in this case was purely speculative. Dkt. No. 14 at 165. Chin did not challenge this finding in the point of error section of her opening brief. Dkt. No. 42 at 25. Focusing on Bowen s declaration, Bowen did not state that his conversation with Soleymani required a response from Bowen before the jury reached its verdict or that a failure to respond would result in a guilty verdict. Moreover, Bowen s declaration did not establish that his conversation with Soleyamani was communicated to the other jurors or that the other jurors were influenced by this alleged misconduct. State v. Williamson, 72 Haw. 97, 103, 807 P.2d 593, 596 (1991 (explaining that [a] new trial will not be granted if it can be shown that the jury could not have been influenced by the alleged misconduct ; State v. Amorin, 58 Haw. 623, 630, 574 P.2d 895, 900 (1978 (explaining that [a] new trial will not be granted if it can be shown that the jury could not have been influenced by the alleged misconduct. Accordingly, Bowen s encounter with 26

32 Soleymani cannot be viewed as rising to the level of being substantially prejudicial to Chin. Finally, the circuit court astutely found that [t]he timing and mixed nature of the verdicts undermines [Chin s] argument that she was deprived of a fair trial by an impartial jury. Dkt. No. 14 at 184. Again, Chin did not challenge this finding in the point of error section of her opening brief. Dkt. No. 42 at 25. On the first full day of deliberations, the jury found Chin guilty as charged in Count 1. Dkt. No. 14 at 26, 184. On the second full day of deliberations, the jury found Chin not guilty of Count 3 and guilty as charged in Counts 4 and 6. Dkt. No. 14 at 28, 184. The jury also indicated that it was not able to reach a verdict on Counts 2 and 5, and that more time would not assist them. Dkt. No. 14 at 28, 184. These mixed verdicts imply that the jury considered each count and the evidence that applied to each count with careful thought, dispelling Chin s notion that Soleymani s actions rose to the level of being substantially prejudicial. See State v. Cordeiro, 99 Hawai i 390, 413, 56 P.3d 692, 715 (2002 (explaining that the jury s acquittal of [the defendant] in two of the attempted first degree murder cases... suggests that the jury, in fact, followed the circuit court s instructions and did not infer a criminal disposition from the cumulative charges. Because Chin fails to demonstrate that Soleymani s actions rose to the level of being substantially prejudicial[,] the circuit court was under no duty to recall the jury for questioning. Thus, the circuit court did not abuse its discretion in denying her motion for a new trial. 27

33 IV. CONCLUSION Based on the foregoing arguments and authority, the State requests that this Honorable Court affirm Chin s convictions. Dated at Honolulu, Hawai i: April 24, Respectfully submitted, STATE OF HAWAI I Plaintiff-Appellee By KEITH M. KANESHIRO Prosecuting Attorney By /s/ SONJA P. MCCULLEN Deputy Prosecuting Attorney City and County of Honolulu CAAP ; STATE OF HAWAI I, Plaintiff-Appellee, v. SUSAN CHIN, Defendant-Appellant; Appellee s Answering Brief 28

34 V. STATEMENT OF RELATED CASES The State is unaware of any related cases pending before the Hawai i courts or agencies.

35 NO. CAAP IN THE INTERMEDIATE COURT OF APPEALS OF THE STATE OF HAWAI I STATE OF HAWAI I, Plaintiff-Appellee, vs. SUSAN CHIN, Defendant-Appellant. CRIMINAL NO APPEAL FROM THE JUDGMENT OF CONVICTION AND SENTENCE; NOTICE OF ENTRY filed herein on July 19, 2013 FIRST CIRCUIT COURT HONORABLE KAREN S.S. AHN JUDGE CERTIFICATE OF SERVICE I hereby certify that on April 24, 2014, one (1 copy of the Answering Brief of the State of Hawai i, was served by electronic notification through JEFS to: WILLIAM A. wharrison@hamlaw.net Attorney for Defendant-Appellant /s/ SONJA P. MCCULLEN Deputy Prosecuting Attorney City and County of Honolulu