§701-109 - Method of prosecution when conduct establishes an element of more than one offense.

§701-109 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. The defendant 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; or

(b) One offense consists only of a conspiracy or
solicitation to commit the other; or

(d) The offenses differ only in that one is defined
to prohibit a designated kind of conduct generally and the other to prohibit a
specific instance of such conduct; or

(e) The offense is defined as a continuing course of
conduct and the defendant's course of conduct was uninterrupted, unless the law
provides that specific periods of conduct constitute separate offenses.

(2) Except as provided in subsection (3) of
this section, a defendant shall not be subject to separate trials for multiple
offenses based on the same conduct or arising from the same episode, if such
offenses are known to the appropriate prosecuting officer at the time of the commencement
of the first trial and are within the jurisdiction of a single court.

(3) When a defendant is charged with two or
more offenses based on the same conduct or arising from the same episode, the
court, on application of the prosecuting attorney or of the defendant, may
order any such charge to be tried separately, if it is satisfied that justice
so requires.

(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;
or

(b) It consists of an attempt to commit the offense
charged or to commit an offense otherwise included therein; or

(c) It differs from the offense charged only in the
respect that a less serious injury or risk of injury to the same person,
property, or public interest or a different state of mind indicating lesser
degree of culpability suffices to establish its commission.

(5) The court is not obligated to charge the
jury with respect to an included offense unless 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. [L 1972, c 9, pt of §1; gen
ch 1993]

Cross References

Elements of an offense, see §702-205.

COMMENTARY ON §701-109

Subsection (1) permits the State's case against the defendant
to go to the jury on as many offenses as to which the State can meet its burden
of making out a prima facie case. The jury may convict the defendant of as
many offenses as the defendant has committed unless: one offense is included
within the other (in which case the jury may find the defendant guilty of
either offense if both are submitted to it), one offense consists only of a
conspiracy or solicitation to commit the other, inconsistent findings of fact
are required to establish the commission of the offenses, the offenses differ
only in that one is a specific instance of the general conduct prohibited by
the other, or the offense is defined as a continuing course of conduct and the
defendant's course of conduct was uninterrupted (unless the law provides that
specific periods of conduct constitute separate offenses). This subsection
reflects a policy to limit the possibility of multiple convictions and extended
sentences when the defendant has basically engaged in only one course of
criminal conduct directed at one criminal goal, or when it would otherwise be
unjust to convict the defendant for more than one offense.

Subsection (2) requires joinder of the trials of two or more
offenses based on the same conduct, subject to the court's power, in subsection
(3), to order severance, if "justice so requires." These rules
reflect a policy that defendants should not normally have to face the expense
and uncertainties of two trials based on essentially the same episode.

Subsection (4) provides a definition of included offenses.
Paragraph (a) provides the standard definition. An offense is included within
another if it is established by the same or less than all the facts required to
establish the commission of the offense charged. Paragraph (b) adds offenses
which constitute an attempt to commit the offense charged or an offense
otherwise included in the offense charged. Finally, paragraph (c) is concerned
with cases in which the included offense involves a less serious injury or risk
of injury to the same person, property, or public interest or a lesser kind of
culpability. Paragraph (c) differs from paragraph (a) in that, although the
included offense must produce the same result as the inclusive offense, there
may be some dissimilarity in the facts necessary to prove the offense.
Therefore (a) would not strictly apply and (c) is needed to fill the gap. For
example, negligent homicide would probably not be included in murder under (a),
because negligence is different in quality from intention. It would obviously
be included under (c), because the result is the same and only the required
degree of culpability changes.

Subsection (5) is consistent with prior law. The jury need
not be bothered with an instruction on a lesser included offense unless there
is a rational basis in the evidence for a verdict acquitting the defendant of
the offense charged and convicting the defendant of the lesser offense.

Section 701-109 is not unlike previous Hawaii law, which
stated that:

Where the same act constitutes two or more diverse and distinct
offenses, different in their nature and character, one not being merged in the
other, the offender may be proceeded against for each, and cannot plead a
conviction or acquittal for one, in bar of proceedings against him for the
other.[1]

An example of merger (one offense included in the other) is
Territory v. Ouye.[2] In that case it was held that the defendant's unlawful
act of being present at a gambling game, for which the defendant had been
convicted, was merged in the defendant's alleged act of conducting the game.
Likewise, in Territory v. Silva,[3] it was held that the defendant could not be
held guilty of rape when the defendant was previously convicted of assault and
battery based on the same conduct.

Law Journals and Reviews

Included Offenses in Hawaii Case Law and the Rights to Trial
by Jury: Coherence or Confusion. II HBJ No. 13, at pg. 77.

Case Notes

In State v. Pia, 55 H. 14, 514 P.2d 580 (1973), the
defendants were charged with a battery on a police officer with intent to
obstruct the officer in the performance of the officer's duties and with
interference with a police officer while executing the officer's duties (as
those offenses were defined under previous Hawaii law). The court held that a
plea of guilty and conviction for one offense did not bar prosecution for the
other where the offenses were "separate not only statutorily but also
spatially and temporally"--even though the separation in space was only a
short distance and the separation in time was only a few seconds. The court
said that "where a defendant in the context of one criminal scheme or
transaction commits several acts independently violative of one or more
statutes, he may be punished for all of them if charges are properly
consolidated by the State in one trial. Indeed, joinder of offenses is now
mandatory in such circumstances under Hawaii Penal Code §109(2), a provision
which seeks to insulate individuals from the harassment of multiple trials for
the same general criminal episode under technically different statutory
provisions. Cf. State v. Ahuna, [52 Haw. 321, 474 P.2d 704 (1970)]."
State v. Pia, supra at 19, 514 P.2d at 584.

Subsection (2) acts as procedural limitation to States' power
under subsection (1) to seek convictions for all offenses. 59 H. 92, 576 P.2d
1044.

Prosecutorial knowledge requirement met where prosecutor
knows more than one charge is pending and fails to join the charges; police
officer's knowledge of additional offense was not knowledge of an "appropriate
prosecuting officer" under subsection (2). 61 H. 127, 596 P.2d 779.

Reckless endangering in the second degree is a lesser
included offense of attempted murder. 62 H. 637, 618 P.2d 306.

Harassment is not a lesser included offense of assault in the
third degree under subsection (4)(a) or (c). 63 H. 1, 620 P.2d 250.

The "same episode" in subsection (2) construed. 63
H. 345, 627 P.2d 776.

Harassment not a lesser included offense of disorderly
conduct under subsection (4). 63 H. 548, 632 P.2d 654.

Rape and sodomy not specific instances of kidnapping;
prohibition against multiple convictions not applicable where defendant's
actions constituted separate offenses. 68 H. 246, 710 P.2d 1193.

Assault in the third degree is not a lesser included offense
of assault in the second degree. 68 H. 276, 711 P.2d 289.

No double jeopardy where crimes charged involved different
mens rea requirements and different facts proved each crime. 68 H. 280, 711
P.2d 731.

No basis in evidence for acquitting defendant of offense
charged and convicting defendant of included offense. 68 H. 463, 718 P.2d 280.

Harassment is not a lesser included offense of terroristic
threatening in the first degree. 70 H. 85, 762 P.2d 164.

Section 707-111 does not prevent a retrial where charges for
DUI and driving with 0.10 per cent alcohol are brought together, and a mistrial
is declared on one charge because of the jury's inability to agree. 70 H. 332,
770 P.2d 420.

Theft in the second degree is not a lesser included offense
of fraudulent use of a credit card. 70 H. 434, 774 P.2d 888.

State was barred from prosecuting defendant for felony
offenses by defendant's conviction for misdemeanor marijuana possession
charge. 72 H. 35, 804 P.2d 1347.

Compulsory joinder of offenses requirement applies to
criminal contempt charges under §710-1077(4). 72 H. 164, 811 P.2d 815, cert.
denied, 112 S. Ct. 194.

Negligent homicide is a lesser included offense of
manslaughter. 72 H. 217, 811 P.2d 1100.

Where petitioner's convictions on counts I (attempted first
degree murder), II (second degree murder), and III (attempted second degree
murder) violated §701-109(1)(c)'s clear prohibition against inconsistent
factual findings, the failure to raise this issue, both at trial and on appeal,
resulted in withdrawal of not only a potentially meritorious defense, but a
defense that would have altered the outcome. 74 H. 442, 848 P.2d 966.

Trial court did not commit plain error when it allowed
defendant to be convicted of kidnapping in addition to sexual assault and
assault. 75 H. 152, 857 P.2d 579.

Terroristic threatening not a lesser included offense of
intimidating a witness within the meaning of subsection (4)(a); multiple
conviction of terroristic threatening and intimidating a witness not barred by
subsection (4)(c). 75 H. 517, 865 P.2d 157.

Circuit court was obligated, even absent a request by either
party, to instruct the jury regarding the included offense of assault in third
degree where appellant was charged with committing offense of assault in second
degree; court's failure to do so constituted plain error. 76 H. 387, 879 P.2d
492.

Trial judge erred in refusing to instruct jury regarding the
possible merger of the robbery and kidnapping counts against defendant. 77 H.
17, 881 P.2d 504.

Where appellant convicted of committing two burglaries and of
criminal conspiracy contended that jury was not adequately instructed with
respect to its ability to convict appellant of both the conspiracy and
substantive burglary offense charges, appellant's requested instructions did
not adequately explicate the law in this area and were properly rejected;
failure to properly instruct the jury was harmless as to convictions for the
two substantive burglaries; supreme court could not conclude that circuit court's
failure to properly instruct jury as to which overt acts it could consider was
harmless. 78 H. 383, 894 P.2d 80.

Sexual assault in the fourth degree and attempted sexual
assault in the fourth degree are included offenses of attempted sexual assault
in the second degree, within the meaning of subsection (4)(c). 79 H. 46, 897
P.2d 973.

Theft and attempted theft, regardless of degree, are included
offenses of first degree robbery. 81 H. 309, 916 P.2d 1210.

Trial court should have applied subsections (1)(a) and (4)(b)
to merge defendant's conviction for attempted first degree murder into
conviction for first degree murder. 81 H. 358, 917 P.2d 370.

Sexual assault in the fourth degree under §707-733(1)(a) not
an included offense of sexual assault in the third degree under §707-732(1)(b) as
defined by subsection (4). 83 H. 308, 926 P.2d 599.

Subsection (1)(d) prohibits conviction under both §712-1203
and §842-2(2), as both statutes seek to redress the same conduct--the control
of an enterprise involved in criminal activity. In such case, the specific
statute, §712-1203, governs over the general statute, §842-2(2). 88 H. 19, 960
P.2d 1227.

When a defendant is charged in a single indictment or
complaint and one or more counts are terminated on a basis unrelated to factual
guilt or innocence, retrial not barred by subsection (2) and §701-111(1)(b);
thus, defendant's retrial on place to keep firearms charge under §134-6 not
barred. 88 H. 389, 967 P.2d 221.

The crime underlying a §134-51(b) offense is, as a matter of
law, an included offense of the §134-51(b) offense, within the meaning of
subsection (4)(a), and defendant should not have been convicted of both the
§134-51(b) offense and the underlying second degree murder offense; thus,
defendant's conviction of the §134-51(b) offense reversed. 88 H. 407, 967
P.2d 239.

Where defendant's conviction and sentence under §708-840 was
an included offense under §134-6(a) and defendant's convictions under both
§§134-4(a) and 708-840 violated subsection (1)(a), defendant's conviction and
sentence under §708-840 reversed. 91 H. 33, 979 P.2d 1059.

Under either subsection (4)(a) or (4)(c), a petty misdemeanor
assault under §707-712(2) is not a lesser included offense of family abuse
under §709-906. 93 H. 63, 996 P.2d 268.

Pursuant to §§705-500(1)(b) and (3), 134-7(b), and subsection
(4)(b), attempted prohibited possession of a firearm is an included offense of
prohibited possession of a firearm. 93 H. 199, 998 P.2d 479.

Trial courts must instruct juries as to any included offenses
when, pursuant to subsection (5), "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 H. 405, 16 P.3d
246.

Trial courts must instruct juries on all lesser included
offenses as specified by subsection (5), despite any objection by the defense,
and even in the absence of a request from the prosecution. 94 H. 405, 16 P.3d
246.

The original 1990 enactment of §134-6(a) prohibited the
conviction of a defendant for both a §134-6(a) offense and its underlying
felony. 101 H. 187, 65 P.3d 134.

Where question whether defendant's conduct constituted
separate and distinct culpable acts or an uninterrupted continuous course of
conduct was one of fact that should have been submitted to the jury, trial
court's jury instructions, which omitted the possible merger of counts I and
II, pursuant to subsection (1)(e), were prejudicially insufficient and
erroneous. 102 H. 300, 75 P.3d 1191.

Given the reasonable possibility that the jury's verdict led
to two convictions for "the same conduct", the trial court's failure
to charge the jury with respect to merger contravened subsection (1)(e) and was
not harmless beyond a reasonable doubt. 114 H. 76, 156 P.3d 1182.

Where charged offenses in search warrant case and drug buy
case arose from the "same episode" inasmuch as defendant's conduct
was "so closely related in time, place and circumstances that a complete
account of one charge could not have been related without referring to the
details of the other charge", trial court erred in denying defendant's
motion to dismiss based upon the prosecution's failure to join the search
warrant offenses and the drug buy offenses in a single prosecution. 118 H. 44,
185 P.3d 229.

Fact that kidnapping continued during sexual abuse did not
cause kidnapping to be included offense of sexual abuse. 5 H. App. 127, 681
P.2d 573.

Kidnapping not necessarily and incidentally committed during
robbery may be charged as separate offense. 5 H. App. 644, 706 P.2d 1321.

"Convicted" means guilty verdict, not sentence and
judgment; under this section and §705-531, defendant cannot be found guilty of
being an accomplice to an attempted crime and of conspiracy to commit the same
crime. 5 H. App. 651, 706 P.2d 1326.

Under this section and §705-531, defendant cannot be found
guilty of conspiracy to commit crime and the crime itself. 5 H. App. 670, 706
P.2d 1331.

Assault in the third degree is not a lesser included offense
of robbery in the first degree. 6 H. App. 15, 711 P.2d 736.

Criminal trespass in the first degree is a lesser included
offense of burglary in the first degree; when lesser included offense
instruction should be given. 6 H. App. 17, 708 P.2d 834.

Kidnapping was not necessarily and incidentally committed
during rape; prohibition against multiple convictions not applicable. 6 H.
App. 77, 711 P.2d 1303.

Although section bars conviction of a person for committing
an offense and the conspiring to commit that same offense, section does not
preclude conviction of a person for conspiring to commit more than two criminal
acts and of committing two of the criminal acts planned by the conspiracy. 7
H. App. 526, 783 P.2d 1232.

Jury is to consider the charged offense then the lesser
included offenses in descending order. 8 H. App. 1, 791 P.2d 407.

Theft and forgery charges had to be paired together. 8 H.
App. 284, 800 P.2d 623.

An offense under §291C-15 is an included offense under
§§291C-13 and 14. 9 H. App. 156, 828 P.2d 298.

Terroristic threatening in second degree can be an offense
included in terroristic threatening in first degree; trial court's failure to
instruct jury on the lesser included offense was not plain error, where
defendant contended there was a rational basis in the record for jury to decide
that, although defendant made a terroristic threat, defendant did not do so
with a dangerous instrument as defined in §707-700. 10 H. App. 584, 880 P.2d
213.

Since to sell and to barter do not include to prescribe, §712-1248(1)(d)
is not a lesser included offense of §712-1247(1)(h). 78 H. 488 (App.), 896
P.2d 944.

Driving without license under §286-102 not lesser included
offense of driving while license suspended under §286-132. 81 H. 76 (App.),
912 P.2d 573.

Based on subsection (4)(a), fourth degree sexual assault
under §707-733(1)(a) is a lesser included offense of third degree sexual
assault under §707-732(1)(e). 85 H. 92 (App.), 937 P.2d 933.

Third degree sexual assault committed in violation of
§707-732(1)(e) not a continuous offense; defendant's convictions of five counts
of that offense, each based on a separate sexual contact thus did not violate
subsection (1)(e). 85 H. 92 (App.), 937 P.2d 933.

Under subsections (1)(a) and (4), defendant could not be
convicted of kidnapping charge in addition to sexual assault charges where jury
relied on same leg restraint on complainant to convict defendant of both
charges. 85 H. 92 (App.), 937 P.2d 933.

Under subsection (4)(a) and (c), reckless endangering in the
first degree under §707-713 is an included offense of attempted murder in the
second degree under §707-701.5. 94 H. 513 (App.), 17 P.3d 862.

Subsection (1)(e) prohibition against conviction for more
than one offense when defendant's conduct establishes an element of more than
one offense not violated by defendant's convictions for driving under the
influence of drugs under §291-7 and inattentive driving under §291-12 as
driving under the influence of drugs required defendant to be under the
influence of drugs and inattention to driving did not. 98 H. 188 (App.), 46
P.3d 1.

As rational basis existed in the record to support trial
court's determination that jury could find defendants guilty of attempted
assault in the second degree but not attempted assault in the first degree,
trial court did not err in giving lesser included offense instruction. 104 H.
517 (App.), 92 P.3d 1027.

Trial court did not err when it interpreted the relevant
provisions of subsection (2) and §701-111(1)(b) as prohibiting the court from
granting defendant's pretrial motion to dismiss where the three charges against
the defendant were based upon incidents occurring on different dates and at
different places under distinct circumstances, and were patently not
"based on the same conduct or arising from the same episode". 108 H.
195 (App.), 118 P.3d 678.

As attempted assault in the first degree is an included
offense of assault in the first degree, under subsection (4), the trial court
properly instructed the jury on the included offense of attempted assault in
the first degree; as trial court's instructing the jury on the included offense
of attempted assault in the first degree only placed defendant in jeopardy
once, defendant's double jeopardy rights not violated. 112 H. 278 (App.), 145
P.3d 821.

Subsection (1)(e) only prohibits conviction for two offenses
if the offenses merge; it specifically permits prosecution on both offenses;
even if the felon-in-possession and the place-to-keep charges merged pursuant
to this subsection, conviction on one of the two charges was possible; thus,
where trial court committed plain error in failing to give an instruction
regarding the possible merger of the two counts, "a new trial was not
necessary because the State could obviate the error by dismissing either
count". 114 H. 507 (App.), 164 P.3d 765.

__________

§701-109 Commentary:

1. H.R.S. §706-4.

2. 37 Haw. 176 (1945).

3. 27 Haw. 270 (1923).