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                                                              Electronically Filed
                                                              Supreme Court
                                                              SCWC-14-0000061
                                                              14-NOV-2016
                                                              08:05 AM




           IN THE SUPREME COURT OF THE STATE OF HAWAI#I

                                ---O0O---


                         STATE OF HAWAI#I,
                   Respondent/Plaintiff-Appellee,

                                    vs.

                      LEON MAKANALANI FAAMAMA,
                   Petitioner/Defendant-Appellant.


                            SCWC-14-0000061

         CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
               (CAAP-14-0000061; CR. NO. 12-1-1457)

                           NOVEMBER 14, 2016

     RECKTENWALD, C.J., NAKAYAMA, McKENNA, AND POLLACK, JJ.,
  WITH CIRCUIT JUDGE CRANDALL, IN PLACE OF WILSON, J., RECUSED,
                            DISSENTING

             OPINION OF THE COURT BY RECKTENWALD, C.J.

          Leon 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
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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.

            We find 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.

            Accordingly, Faamama’s judgment of conviction is

vacated and the case remanded for a new trial.

                               I.   Background

A.   Trial Proceedings

            On 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)1 and 708-830(2)2.


      1
            HRS § 708-830.5(1)(a) (2006) provides:

            (1) A person commits the offense of theft in the first
            degree if the person commits theft:

            (a) Of property or services, the value of which
            exceeds $20,000[.]
      2
            HRS § 708-830(2) (2006) provides:

            A person commits theft if the person does any of the
            following:

            . . . .

            (2) Property obtained or control exerted through
                                                                   (continued...)

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             At trial,3 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 with

him.

             Prior 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.

             Faamama 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 not

pay.

       2
        (...continued)
             deception. A person obtains, or exerts control over,
             the property of another by deception with intent to
             deprive the other of the property.
       3
             The Honorable Glenn J. Kim presided.

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          Vaughn 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.

          Eventually, 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.

          Vaughn 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.


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          The 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 $6,395.75.

          The 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 things.”

          In the letter dated March 22, 2012, Vaughn wrote to

Judge Alm again “out of continued concern and frustration”


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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 [Faamama].”

          The 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.

          On 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.

          Vaughn further testified on cross that he never mailed


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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.

            The 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 paying.

            Faamama 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.

B.   Jury Instructions

            At the 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


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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, and thus would want to convict Faamama only on the basis

of $18,000, the amount for which there were receipts signed by

Faamama.

           The State disagreed, arguing that “in order to find

[Faamama] guilty of stealing that amount, they would have to

reject that idea or claim that it was given as a loan, and if

they reject that idea or claim, I don’t see any rational basis

for them to reject the rest of the money.”         The State also argued

that significant evidence was presented to corroborate Vaughn’s

testimony.

           The State argued that the letters written by Vaughn to

Judge Alm were the “same sorts of evidence” as the receipts

because Vaughn had written the amount of money he had given to

Faamama.   The court agreed with this argument, noting that the

letters were in writing and that the jury could look at them as

well.

           The court denied defense counsel’s request, concluding

that there was no “rational basis for a reasonable juror” to

believe that Faamama took less than $20,000 from Vaughn.            Defense

counsel then requested an instruction of Theft in the Fourth


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Degree, but the court denied the request on the same basis.

            Accordingly, the jury was only instructed on Theft in

the First Degree.

C.   Jury Verdict and Sentencing

            On September 16, 2013, the jury found Faamama guilty of

Theft in the First Degree.        The Court sentenced Faamama to prison

for ten years, ordered him to pay restitution of $158,910.75 to

Vaughn, and also $105 to the Crime Victim Compensation Fund.

D.   ICA Proceedings

            Faamama appealed to the ICA, alleging four points of

error:    (1) the court violated his constitutional right to

testify by failing to administer a proper Tachibana colloquy; (2)

the court erred in failing to instruct the jury on

lesser-included theft offenses; (3) the DPA committed

prosecutorial misconduct in his opening statement and closing

argument; and (4) the court erred in denying his motion for

judgment of acquittal as there was insufficient evidence in

support of his conviction.

            In a summary disposition order, the ICA rejected

Faamama’s arguments and affirmed the judgment.            The ICA held that

(1) there was ample and compelling evidence to support the jury’s

verdict finding Faamama guilty of Theft in the First Degree; (2)

any error in the court’s failure to instruct on lesser-included

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theft offenses was harmless; (3) the court engaged in two

colloquies with Faamama that both complied with the Tachibana

requirements, which constituted valid on-the-record waivers by

Faamama of his right to testify; and (4) the DPA’s remarks in

opening statement and closing argument did not constitute

prosecutorial misconduct because they were “reasonable

inferences” from the evidence that was introduced at trial.

                        II.   Standards of Review

B.    Jury Instructions

            “The standard of review for a trial court’s issuance or

refusal of a jury instruction is whether, when read and

considered as a whole, the instructions given are prejudicially

insufficient, erroneous, inconsistent, or misleading.”               State v.

Kassebeer, 118 Hawai#i 493, 504, 193 P.3d 409, 420 (2008)

(internal quotation marks and citation omitted).

                              III.   Discussion

            Faamama’s application presents the following questions:
            1. Whether the ICA gravely erred in holding that there
            was substantial evidence to support Fa#amama’s
            conviction?

            2. Whether the ICA gravely erred in holding that any
            error by the Circuit Court in failing to instruct the
            jury on the lesser-included theft offenses was
            harmless?

            3. Whether the ICA gravely erred in holding that the
            Circuit Court complied with the Tachibana requirements
            and obtained a valid on-the-record waiver of
            Fa#amama’s right to testify?


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            4. Whether the ICA gravely erred in holding that the
            DPA’s remarks in opening statement and closing
            arguments did not constitute prosecutorial misconduct?

            We conclude that the circuit court erred in refusing to

instruct the jury on the lesser-included offense of Theft in the

Second Degree (Theft 2).       Accordingly, we vacate Faamama’s

conviction on this basis and do not address his remaining points

of error.

            To support a conviction for Theft in the First Degree

(Theft 1), the State was required to prove, among other things,

that Faamama had committed theft of “property or services, the

value of which exceeds $20,000.”          HRS § 708-830.5.

            During the settling of jury instructions, defense

counsel asked for a Theft 2 instruction, arguing that “it’s

possible the jury could believe that the State did not prove that

[Faamama] took over $20,000 but that [the State] did prove, based

on the receipts, that [Faamama] did receive $18,000.”                The court

declined to give the instruction, finding that there was not “a

rational basis for a reasonable juror to acquit of the Theft 1

and convict only of Theft 2.”        The court also rejected defense

counsel’s proposed instruction on Theft in the Fourth Degree

(Theft 4) for the same reason.

            Faamama argued to the ICA that the court erred in

failing to instruct the jury on the lesser-included theft

offenses.    Passing on that issue, the ICA concluded that any

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error was harmless beyond a reasonable doubt.          It noted that

Faamama did not present a plausible motive for Vaughn to testify

falsely or any significant evidence to contradict his testimony,

and that the State presented evidence that the amount of money

far exceeded the $20,000 minimum for Theft 1.          Accordingly, there

was “no reasonable possibility that the Circuit Court’s failure

to instruct the jury on lesser-included theft offenses affected

the outcome of this case or contributed to Faamama’s first-degree

theft conviction.”

          Faamama’s application argues that there was a rational

basis for a verdict acquitting Faamama of Theft 1 and convicting

him of the lesser-included offenses, and as such, the court was

required to give the requested jury instruction.           The State

responds that, based on the record, there “existed no rational

basis to acquit of the charged offense and to convict [Faamama]

of any lesser-included theft offense.”

          We agree that there was a rational basis for the jury

to acquit Faamama of Theft 1 and find him guilty of Theft 2.

Further, this failure to instruct the jury on the lesser-included

offense was not harmless.      Accordingly, the judgment of

conviction as to Theft 1 is vacated and the case remanded for a

new trial.




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A.    The Circuit Court was Required to Give the Requested Jury
      Instruction on the Lesser-Included Offense of Theft 2.

            The initial question is whether the court erred in

failing to give the Theft 2 jury instruction.            In State v.

Haanio, we mandated that “trial courts must instruct juries as to

any included offenses when ‘there is a rational basis in the

evidence for a verdict acquitting the defendant of the offense

charged and convicting the defendant of the included offense.’”

94 Hawai#i 405, 413, 16 P.3d 246, 254 (2001) (quoting HRS § 701-

109(5) (1993)), overruled on other grounds by State v. Flores,

131 Hawai#i 43, 314 P.3d 120 (2013).          The rationale behind the

rule is that the public interest is best served by the jury

assessing criminal liability if it exists in the evidence.               See

Flores, 131 Hawai#i at 51, 314 P.3d at 128.

            A Theft 1 conviction requires theft “[o]f property or

services, the value of which exceeds $20,000.”            HRS § 708-830.5.

A Theft 2 conviction requires theft “[o]f property from the

person of another” or “[o]f property or services the value of

which exceeds $300.”       HRS § 708-831.     Here, neither party

disputes that Theft 2 is a lesser-included offense of Theft 1.

See State v. Stenger, 122 Hawai#i 271, 293, 226 P.3d 441, 463

(2010); HRS § 701-109(4)(a).

            Because Theft 2 is a lesser-included offense of Theft



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1, the critical question is “whether any view of the evidence in

this case presented a rational basis for the jury to acquit”

Faamama of Theft 1, and, alternatively, to convict him of Theft

2.   Flores, 131 Hawai#i at 53, 314 P.3d at 130 (emphasis added).

The difference between Theft 1 and Theft 2, as charged in this

case, is the value of what was stolen.           Theft 1 involves theft

exceeding $20,000, while Theft 2 involves theft exceeding $300.

Compare HRS § 708-830.5 with HRS § 708-831.

            In this case, the court should have given a Theft 2

instruction.     At trial, Vaughn testified that he gave Faamama

somewhere between $134,560 and $164,000.           This amount was

established primarily through Exhibits 18B, 18C, 18D, 18E, and

18F, which were spreadsheets reflecting all of the money that

Vaughn said he gave to Faamama.

            However, there is a lack of direct evidence

corroborating Vaughn’s testimony that he gave Faamama amounts

totaling over $20,000.       Vaughn testified that he would give

Faamama cash by writing checks out to “cash,” except for one

check in the amount of $500.        Moreover, Vaughn did not write

anything in the notation section of the checks and did not start

generating receipts until the “very end,” after his wife told him

that he should do so.       Only four receipts were created by Vaughn

and signed by Faamama, which were introduced by the State as


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Exhibit 12.   Adding the four receipts to the $500 check that was

written out to Faamama results in a total of $19,175––$825 less

than the $20,000 required for a Theft 1 conviction.

            On cross-examination, Vaughn testified that he did not

keep an accounting of the money he gave to Faamama.           Vaughn also

admitted that he had taken out thousands of dollars during the

charged period for his personal use.        He could not specify which

amounts were for personal use and which he gave to Faamama.

            “Because the jury was the exclusive judge of the value

of evidence and credibility of witnesses, it had the ultimate

discretion to decide to what extent a witness should be believed

and whether to discredit testimony.”        Stenger, 122 Hawai#i at

295, 226 P.3d at 465 (internal quotation marks omitted).            On this

record, a juror could rationally have chosen not to believe,

beyond a reasonable doubt, that all of the transactions had

occurred.   A juror could have decided to credit the receipts that

were signed by Faamama, as well the check written out to him, but

have a reasonable doubt as to the validity of the amounts that

did not have similar corroboration.        Accordingly, a juror would

have a rational basis in the evidence to acquit Faamama of Theft

1, and convict him of Theft 2.

            In its decision to deny giving the Theft 2 instruction,

the court reasoned that the two letters Vaughn wrote to Judge Alm


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were the “same sorts of evidence” as the receipts.           However, the

receipts were signed by Faamama, whereas the letters were not.               A

juror could have found that Vaughn’s stated amounts in the

letters––$56,000 and $60,000––were not credible.

            The State argues that this case is similar to State v.

Nichols, 111 Hawai#i 327, 141 P.3d 974 (2006), and State v.

Sneed, 68 Haw. 463, 718 P.2d 280 (1986).         In both cases, we

upheld the court’s decision to not give a lesser-included offense

instruction.    Neither case is analogous to the instant case.

            In Nichols, whether the defendant should have been

convicted of first or second degree terroristic threatening

hinged on whether the accused acted with the requisite state of

mind with respect to the attendant circumstance of “public

servant.”    111 Hawai#i at 327, 141 P.3d at 974.        The only

evidence regarding “public servant” came from an officer’s

uncontradicted testimony that: (1) in the course of his official

duties as a police officer, he had been involved in a

confrontation with the defendant; and (2) the defendant made a

statement that indicated he knew that he was threatening a police

officer.    Id. at 342, 141 P.3d at 989.       Accordingly, the “only

rational inference that could be drawn . . . is that [the

defendant] knew that he was threatening a police officer.”             Id.

            In contrast, the evidence presented at trial would


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allow another rational inference to be drawn--that Faamama had

committed theft, but not in an amount in excess of $20,000.              This

is distinguishable from Nichols, where there was no other

evidence presented on the question of whether the defendant knew

he was threatening a police officer.

            In Sneed, the defendant, who had been found guilty of

Theft 1, argued that the court committed plain error by failing

to instruct the jury as to lesser-included theft offenses.              See

68 Haw. at 463, 718 P.2d at 280.          We held that since the only

defense advanced by the defendant was a “flat denial” of

committing theft, there would not have been a factual basis in

the evidence for the jury to acquit on Theft 1, but convict on

lesser-included theft offenses.        Id. at 464, 718 P.2d at 281.          In

contrast here, the State presented direct physical evidence––four

receipts signed by Faamama and a check written out to

Faamama––that corroborated $19,175 of Vaughn’s alleged losses.

The State did not present similar evidence to substantiate the

additional losses claimed by Vaughn.          Therefore, unlike Sneed,

there was a rational basis for a verdict acquitting Faamama of

Theft 1 and convicting him of Theft 2.4

      4
            Faamama also argues that the court should have given a Theft 4
instruction, which involves theft not in excess of $100. See HRS § 708-833
(2014). We disagree, insofar as there was not a rational basis in the
evidence for a verdict acquitting Faamama of Theft 1 and convicting him of
Theft 4. See Haanio, 94 Hawai#i at 413, 16 P.3d at 254. The State introduced
                                                                (continued...)

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            Accordingly, the court was required to give the

requested jury instruction.        See Stenger, 122 Hawai#i at 295-96,

226 P.3d at 465-66.

B.    The ICA was Incorrect to Conclude that the Circuit Court’s
      Failure to Instruct on Theft 2 was Harmless Beyond a
      Reasonable Doubt.

            The ICA concluded that any error in the court’s failure

to instruct on lesser-included theft offenses was harmless beyond

a reasonable doubt because there was no reasonable possibility

that it affected the outcome of the case.           We respectfully

disagree.

            In Flores, this court overruled the portion of Haanio

holding that an error in failing to instruct on a lesser-included

offense was always harmless when the jury convicted of the

charged offense.      See Flores, 131 Hawai#i at 44, 314 P.3d at 121.

We noted that holding such errors harmless as a matter of law is

inconsistent with the function of the jury in rendering an

accurate verdict and upholding the “truth seeking function of the

judicial system.”      Id. at 56, 314 P.3d at 133 (internal quotation

marks and citation omitted).

            In Flores, we pointed out that when jury instructions



      4
        (...continued)
Exhibit 12, which showed four receipts, generated by Vaughn and signed by
Faamama, in the amount of approximately $18,000. The State also introduced
Exhibit 18A, a check written by Vaughn to Faamama in the amount of $500.

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or their omission are at issue on appeal, “the standard of review

is whether, when read and considered as a whole, the instructions

given are prejudicially insufficient, erroneous, inconsistent or

misleading.”   Id. at 57-58, 314 P.3d at 134-35 (quoting State v.

Sawyer, 88 Hawai#i 325, 329, 966 P.2d 637, 641 (1998)).             Since

the instructions in Flores did not include the lesser-included

offense, they were thus insufficient.        See Flores, 131 Hawai#i at

58, 314 P.3d at 135.     Similarly here, the court’s jury

instructions in this case were prejudicially insufficient,

inasmuch as they did not include the lesser-included offense of

Theft 2.

           The effect of not giving the lesser-included offense

instruction was to force the jury to choose between two options,

conviction of Theft 1, or acquittal.        It is precisely this “all

or nothing” strategy that was rejected in Flores:
           Holding such errors harmless perpetuates the risk that
           the jury in any given case did not actually reach the
           result that best conforms with the facts, because the
           jury was only presented with two options—guilty of the
           charged offense or not guilty—when in fact, the
           evidence may admit of an offense of lesser magnitude
           than the charged offense.

131 Hawai#i at 56, 314 P.3d at 133.

           Accordingly, because there was a rational basis for the

jury to acquit Faamama of Theft 1 and to find him guilty of Theft

2, his conviction must be vacated.        See id. at 58, 314 P.3d at

135 (“The failure to instruct the jury on a lesser included

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offense for which the evidence provides a rational basis warrants

vacation of the defendant’s conviction.”).

                            IV.   Conclusion

          For the foregoing reasons, the circuit court erred in

failing to instruct the jury on Theft in the Second Degree, and

this error was not harmless.      Accordingly, the ICA’s April 22,

2016 judgment on appeal and the circuit court’s December 4, 2013

judgment of conviction as to Theft in the First Degree are

vacated, and the case is remanded to the circuit court for a new

trial.

Thomas R. Waters                         /s/ Mark E. Recktenwald
for petitioner
                                         /s/ Paula A. Nakayama
James M. Anderson
for respondent                           /s/ Sabrina S. McKenna

                                         /s/ Richard W. Pollack




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