State v. Taylor

***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***

Electronically Filed

Supreme Court

SCWC-28904

15-DEC-2011

08:18 AM

IN THE SUPREME COURT OF THE STATE OF HAWAI#I

---o0o---

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

vs.

DANIEL TAYLOR, Petitioner/Defendant-Appellant.

NO. SCWC-28904

CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS

(ICA NO. 28904; CR. NO. 07-1-0253)

DECEMBER 15, 2011

RECKTENWALD, C.J., NAKAYAMA, DUFFY, AND MCKENNA, JJ.,

WITH ACOBA, J., CONCURRING AND DISSENTING SEPARATELY

OPINION OF THE COURT BY RECKTENWALD, C.J.

In 2006, Daniel Taylor pled guilty in the United States

District Court for the District of Hawai#i to conspiracy to

traffic in Native American cultural items that were obtained in

violation of the Native American Grave Protection and

Repatriation Act (NAGPRA). The items were native Hawaiian

artifacts that had been repatriated to Kanupa Cave on the island

of Hawai#i, and that were subsequently taken from the cave by

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Taylor and an accomplice. Approximately a year later, a State of

Hawai#i grand jury indicted Taylor for Theft in the First Degree

in violation of Hawai#i Revised Statutes (HRS) §§ 708-830(1) and

708-830.5(1)(a), quoted infra, with regard to the same events.

Taylor moved to dismiss the indictment on various grounds. The

circuit court denied Taylor’s motion,1 and Taylor appealed.

In the Intermediate Court of Appeals, Taylor argued,

inter alia, that the evidence presented to the grand jury failed

to establish that the artifacts were “property of another” as

required under HRS § 708-830(1). Taylor further argued that his

prosecution in state court was barred by HRS § 701-112, quoted

infra, because he was previously convicted in federal court for

conspiracy to traffic in Native American cultural items, i.e.,

the Kanupa Cave artifacts.

The ICA affirmed, holding that the evidence was

sufficient to support the indictment and noting that

“specification of the actual owner of the property for purposes

of this theft charge is not required and only evidence that the

property was not that of Taylor is required.” State v. Taylor,

No. 28904, 2011 WL 661793, at *9-10 (App. Feb. 23, 2011) (mem.

op.). The ICA further held that HRS § 701-112 did not bar

Taylor’s theft prosecution, because theft in the first degree

requires proof of facts not required for the federal conspiracy

1

The Honorable Glenn S. Hara presided.

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and trafficking offenses, and the primary purposes behind the

state and federal offenses differed. Id. at *3-4.

In his application for a writ of certiorari, Taylor

raises the following two questions:

1. . . . Does the State establish that an item is

“property of another” simply by proving that the

defendant did not own it, or must the State prove

something more to establish that an item is an article

of value that someone other than the defendant

possesses or has some other interest in and therefore

within the statutory definition of “property of

another”?

2. . . . Does the offense of first-degree theft, as

alleged against [Taylor] in this matter, require proof

of a fact that the federal offense of conspiracy, as

it was proven to convict [Taylor], did not require?

We conclude that the ICA erred in stating that “only

evidence that the property was not that of Taylor [was] required”

to establish that the artifacts were the “property of another.”

However, we hold that the State nonetheless presented sufficient

evidence to the grand jury to find probable cause that the

property taken was “property of another.” We further hold that

Taylor’s prosecution in state court is not barred by HRS § 701-

112 because the theft charge requires proof of a fact not

required for his federal conspiracy offense, and the purposes

behind the state and federal statutes differ. Accordingly, we

affirm the judgment of the ICA.2

2

We note that the ICA’s Memorandum Opinion and Judgment on Appeal

purported to affirm the circuit court’s December 13, 2007 “Order Granting Ex

Parte Motion to Certify Order Denying Defendant’s Motion to Dismiss Indictment

and Second Motion to Dismiss for Interlocutory Appeal Pursuant to H.R.S.

§ 641-17.” Taylor, 2011 WL 661793, at *10. However, Taylor’s Notice of

Interlocutory Appeal appealed from the circuit court’s November 14, 2007 order

denying his motion to dismiss the indictment. Moreover, Taylor’s opening

(continued...)

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I. Background

The following factual background is taken from the

record on appeal, including a transcript of the grand jury

proceeding and transcripts of the proceedings before the circuit

court on Taylor’s first motion to dismiss. The record also

contains copies of documents from Taylor’s federal prosecution,

including the charging document, Taylor’s plea agreement, and

transcripts of proceedings before the federal district court.

A. Proceedings in federal district court

On March 24, 2006, the United States charged Taylor by

information with Conspiracy to Traffic in Native American

cultural items in violation of 18 United States Code (U.S.C.)

§ 371, quoted infra, and Trafficking in Native American cultural

items in violation of 18 U.S.C. § 1170(b),3 which imposes

2

(...continued)

brief to the ICA presented argument solely as to that order. In addition, the

ICA’s memorandum opinion concluded that the circuit court properly denied

Taylor’s motion to dismiss the indictment. Id. at *9. Neither Taylor’s

opening brief nor the ICA’s memorandum opinion asserted that the circuit court

erred in granting Taylor leave to file an interlocutory appeal. See id.

Accordingly, we view the reference in the ICA’s judgment to the

circuit court’s December 13, 2007 order as a clerical error. We thus affirm

the ICA’s judgment, which, as corrected by this opinion, affirmed the circuit

court’s November 14, 2007 order denying Taylor’s motion to dismiss the

indictment.

3

18 U.S.C. § 1170(b) (1994), concerning illegal trafficking in

Native American human remains and cultural items, provides:

Whoever knowingly sells, purchases, uses for profit,

or transports for sale or profit any Native American

cultural items obtained in violation of the Native

American Grave Protection and Repatriation Act shall

be fined in accordance with this title, imprisoned not

more than one year, or both, and in the case of a

second or subsequent violation, be fined in accordance

with this title, imprisoned not more than 5 years, or

(continued...)

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sanctions for violations of NAGPRA, discussed infra.

That same day, the federal government filed a

Memorandum of Plea Agreement (Plea Agreement) in which Taylor

agreed to plead guilty to conspiring to sell, use for profit, and

transport for sale and profit Native American cultural items,

which were obtained in violation of 18 U.S.C. § 1170(b), in the

time period “by and including June 2004.”4 In exchange for

Taylor’s guilty plea, the federal government dismissed the

trafficking charge against Taylor and agreed not to seek

additional charges related to the taking and selling of Native

American cultural items from about June 2004 through August 2004.

Taylor was subsequently found guilty on the conspiracy count.

In the Plea Agreement, Taylor admitted the following

facts, outlining “what happened in relation to the charge to

which [Taylor pled] guilty:”

a. From a precise earlier date unknown but by

and including June 2004, in the District of Hawaii,

[Taylor] did knowingly and willfully conspire and

agree with others both known and unknown, including

with his co-defendant, JOHN CARTA, to commit offenses

against the United States, namely, to sell, use for

profit, and transport for sale and profit Native

American cultural items obtained in violation of

[NAGPRA], to wit: Native Hawaiian artifacts that had

been repatriated and re-buried at Kanupa Cave located

on the island of Hawaii, violations of [18 U.S.C.

§§ 371 and 1170(b)].

b. In 2000, JOHN CARTA had a conversation with

an individual identified by initials as M.F., who

informed him of the existence of a cave containing

3

(...continued)

both.

4

The Plea Agreement was incorporated into the record on appeal as

an exhibit to Taylor’s motion to dismiss.

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Native Hawaiian artifacts. According to M.F., the

cave was located on the Kawaihae side of the island of

Hawaii.

c. Subsequently, but at some precise date prior

to June 16, 2004, [Taylor] and JOHN CARTA agreed to

find the cave with the understanding that they would

sell any artifacts they discovered for a profit.

d. On or about June 16, 2004, [Taylor] and

JOHN CARTA acted on their agreement to find the cave.

On or about June 17, 2004, [Taylor] and JOHN CARTA

obtained directions from M.F. and found the cave,

later identified as Kanupa Cave. They pushed aside a

rock sitting across the cave’s entrance and entered.

[Taylor] and JOHN CARTA discovered a number of items

wrapped in woven lauhala baskets and black cloth.

They unwrapped the items and determined they were

Native Hawaiian artifacts, including items such as

wooden bowls, a gourd, a holua sled runner, a spear,

kapa, and cordage. Several of the artifacts contained

labels indicating they belonged to the J.S.

Emerson Collection, which was a collection of

artifacts taken from Kanupa Cave in the late 1800’s

and sold to museums, including the Bishop Museum in

Honolulu, Hawaii. These items were repatriated and

re-buried at Kanupa Cave in November 2003.

e. [Taylor] and JOHN CARTA removed approximately

157 artifacts from Kanupa Cave.

f. [Taylor] sold or attempted to sell artifacts

obtained from Kanupa Cave for a profit as follows:

(i) On or about June 17, 2004, [Taylor]

contacted a collector and attempted to sell to

that collector a palaoa taken from Kanupa Cave

for $40,000.

(ii) On or about June 26, 2004, [Taylor]

sold a piece of kapa from Kanupa Cave to a

tourist for $150.

(iii) On or about July 11, 2004, [Taylor]

sold a fisherman’s bowl and cover taken from

Kanupa Cave to a collector for $2,083.

iv. [sic] On or about July 13, 2004, [Taylor]

had posted for sale on the internet a kupee

taken from Kanupa Cave for $5,600.

g. [Taylor] knew the artifacts belonged to the J.S.

Emerson Collection. To conceal the fact that some of

the artifacts belonged to a well-known collection,

[Taylor] removed the J.S. Emerson Collection labels

from these artifacts.

On June 12, 2007, the federal district court filed its

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judgment, adjudicating Taylor guilty and sentencing him to, inter

alia, eleven months of imprisonment followed by one year of

supervised release.

B. Proceedings in circuit court

1. Grand jury proceedings

On May 23, 2007, the State sought a grand jury

indictment against Taylor for Theft in the First Degree in

violation of HRS §§ 708-830(1)5 and 708-830.5(1)(a).6 The State

presented the testimony of one witness: Abraham Kaikana, a

special agent with the Office of the Attorney General. Agent

Kaikana testified that he had reviewed reports from both the

state and federal investigations in Taylor’s case, interviews

from the federal investigation, and Taylor’s memorandum of plea

agreement with the federal government. Agent Kaikana also

testified that he interviewed various individuals in relation to

Taylor’s case.

With regard to the artifacts, Agent Kaikana testified

that a surveyor named Joseph Swift Emerson “was shown Kanupa Cave

at one time in the 1800s and he took artifacts out of that cave

5

HRS § 708-830(1) (1993) provides:

A person commits theft if the person . . .[o]btains or

exerts unauthorized control over property. A person

obtains, or exerts control over, the property of

another with intent to deprive the other of the

property.

6

HRS § 708-830.5(1)(a) (1993) provides: “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[.]”

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and then he sold part of that to the Bishop Museum and the

Peabody [Essex] Museum in Massachusettes [sic].” Agent Kaikana

testified that J.S. Emerson would put tags or labels on the items

he collected “to document them for future use.”7 Some of the

items taken by J.S. Emerson were “eventually repatriated from

both the Bishop Museum and the Peabody Essex [Museum]” and were

“reburied” at Kanupa Cave. The groups involved with the reburial

included “Hui Malama, . . . OHA, [the] State, and the Bishop

Museum.”8

Agent Kaikana also testified that Taylor and his wife

“own or owned an antique shop” in Captain Cook, Hawai#i, where

“they would sell, buy, [and] trade, [] antiquities.” Agent

Kaikana testified that he interviewed and reviewed the federal

government’s interview of two witnesses who identified artifacts

from the “J.S. Emerson Collection” in Taylor’s shop. Agent

7

Agent Kaikana testified that Taylor acknowledged in his memorandum

of plea agreement that he “saw Emerson tags on the items when he went into the

cave[,]” and that he removed the tags “[t]o hide or conceal the sale of these

items[.]”

8

Agent Kaikana did not explain to the grand jury what “Hui Malama”

or “OHA” were, although the latter was presumably a reference to the Office of

Hawaiian Affairs. NAGPRA identifies Hui Malama I Na Kupuna O Hawai#i Nei as a

“nonprofit, Native Hawaiian organization incorporated under the laws of the

State of Hawaii by that name on April 17, 1989, for the purpose of providing

guidance and expertise in decisions dealing with Native Hawaiian cultural

issues, particularly burial issues.” 25 U.S.C. § 3001(6) (1990). NAGPRA

identifies the Office of Hawaiian Affairs as an entity “established by the

constitution of the State of Hawaii.” 25 U.S.C. § 3001(12); see also Haw.

Const. art. XII, § 5 (establishing the Office of Hawaiian Affairs); HRS

chapter 10 (concerning the Office of Hawaiian Affairs). NAGPRA further

defines a “Native Hawaiian organization” as “any organization which – (A)

serves and represents the interests of Native Hawaiians, (B) has as a primary

and stated purpose the provision of services to Native Hawaiians, and (C) has

expertise in Native Hawaiian Affairs, and shall include the Office of Hawaiian

Affairs and Hui Malama I Na Kupuna O Hawai#i Nei.” 25 U.S.C. § 3001(11).

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Kaikana also testified regarding the recovery of Kanupa Cave

artifacts from Taylor’s home after the federal government

executed a search warrant on Taylor’s home and shop. Agent

Kaikana testified that other Kanupa Cave artifacts, including a

palaoa and kã pe#e, bearing J.S. Emerson and Bishop Museum labels

were recovered in a Tupperware container at the Pu#uhonua o

HÇ naunau National Park on the island of Hawai#i. The agent

testified that it appeared that they had been “dumped” there.

Finally, Agent Kaikana testified that he met with an appraiser,

who valued the items Taylor had taken from Kanupa Cave, including

the palaoa and kã pe#e, from $800,000 to $1.2 million. The grand

jury returned a true bill.

On May 24, 2007, the grand jury’s indictment was filed,

charging Taylor with Theft in the First Degree in violation of

HRS §§ 708-830(1) and 708-830.5(1)(a). The indictment provided:

On or about the 17 th day of June, 2004, in the

County of Hawaii, State of Hawaii, [] TAYLOR, did

obtain or exert unauthorized control over the property

of another, to wit: artifacts from Kanupa Cave,

having a value which exceeds Twenty Thousand Dollars

($20,000), with intent to deprive the other of the

property, thereby committing the offense of Theft in

the First Degree in violation of [HRS §§ 708-830(1)

and 708-830.5(1)(a)].

2. Taylor’s motions in circuit court

On July 24, 2007, Taylor filed a motion to dismiss the

indictment. Taylor argued, inter alia, that “the artifacts

predicating the State’s indictment are not the ‘property of

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another’ under HRS § 708-800”9 and that the indictment charged

Taylor for an offense that he already had been prosecuted for in

federal district court in violation of HRS § 701-112.10 The State

argued, inter alia, that it was only required to prove that the

property belonged to someone other than Taylor. The State also

argued that the instant prosecution was not barred by HRS § 701-

112 because the two-pronged exception set forth in HRS § 701-

112(1)(a) was met in this case. The State contended that the

offense of theft in the first degree “require[d] proof of a fact

not required by the former prosecution in the [federal district

court], namely that the value of the property exceeds $20,000[,]”

and that “the law defining each of the offenses is intended to

9

HRS § 708-800 (1993) defines “property of another” for purposes of

HRS § 708-830(1) as “property which any person, other than the defendant, has

possession of or any other interest in, even though that possession or

interest is unlawful; however, a security interest is not an interest in

property, even if title is in the secured party pursuant to the security

agreement.”

10

HRS § 701-112 (1993) provides, in pertinent part:

When behavior constitutes an offense within the

concurrent jurisdiction of this State and of the

United States or another state, a prosecution in any

such other jurisdiction is a bar to a subsequent

prosecution in this State under any of the following

circumstances:

(1) The first prosecution resulted in an

acquittal which has not subsequently been set

aside or in a conviction as defined in section

701-110(3), and the subsequent prosecution is

based on the same conduct, unless:

(a) The offense for which the defendant is

subsequently prosecuted requires proof of

a fact not required by the former offense

and the law defining each of the offenses

is intended to prevent a substantially

different harm or evil[.]

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prevent a substantially different harm or evil.”

On August 30, 2007, the circuit court held a hearing on

Taylor’s motion to dismiss. Regarding Taylor’s “property of

another” argument, the circuit court indicated that it thought HRS

chapter 6E, concerning historic preservation, applied and ordered

the parties to provide a supplemental memorandum on the topic. At

the conclusion of the hearing, the circuit court took the matter

under advisement. The State subsequently filed a supplemental

memorandum in opposition to the motion to dismiss in which it

argued that the artifacts were the “historic property” of the

State, pursuant to HRS § 6E-7.11 Attached to the supplemental

memorandum was a declaration of Deputy Attorney General Mark K.

Miyahira, declaring that “documentation indicates that Kanupa Cave

is located on State-owned land on the island of Hawaii,” and that

“the artifacts that are the basis of this prosecution are more

than fifty (50) years old.” Taylor argued in his supplemental

memorandum in support of his motion to dismiss that “neither the

State nor anyone else has possession of the artifacts[]” because,

pursuant to HRS § 6E-7(c),12 the “State’s interest in the artifacts

11

HRS § 6E-7(a) (1993) provides: “All historic property located on

lands or under waters owned or controlled by the State shall be the property

of the State. The control and management of the historic property shall be

vested in the [Department of Land and Natural Resources].”

HRS § 6E-2 (1993) defines “historic property[,]” as used in HRS

chapter 6E, as “any building, structure, object, district, area, or site,

including heiau and underwater site, which is over fifty years old.”

12

HRS § 6E-7(c) (1993) provides: “The State shall hold known burial

sites located on lands or under waters owned or controlled by the State in

trust for preservation or proper disposition by the lineal or cultural

(continued...)

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is solely to ‘preserve’ them for ‘proper disposition’ to the

lineal or cultural descendants of the people with whom the

artifacts were interred.”13

3. Circuit court ruling

On October 5, 2007, the circuit court issued a

Memorandum of Decision on Defendant’s Motion to Dismiss, denying

Taylor’s motion. The circuit court found, inter alia, that the

indictment properly charged Taylor with obtaining control over the

“property of another” pursuant to State v. Nases, 65 Haw. 217,

218, 649 P.2d 1138, 1139 (1982),14 and that Taylor’s theft

prosecution was not barred by his federal conviction pursuant to

HRS § 701-112.

On November 14, 2007, the circuit court issued its

Findings of Fact (FOFs), Conclusions of Law (COLs), and Order

denying Taylor’s motion to dismiss the indictment. In its

12

(...continued)

descendants.”

HRS § 6E-2 defines “burial site” as “any specific unmarked

location where prehistoric or historic human skeletal remains and their

associated burial goods are interred, and its immediate surrounding

archaeological context, deemed a unique class of historic property and not

otherwise included in section 6E-41.”

HRS § 6E-2 defines a “burial good” as “any item reasonably

believed to have been intentionally placed with the human skeletal remains of

an individual or individuals at the time of burial.”

13

On September 13, 2007, Taylor filed a second motion to dismiss,

arguing primarily that a theft conviction would violate the rule set forth in

State v. Modica, 58 Haw. 249, 250-51, 567 P.2d 420, 421-22 (1977). The

circuit court denied the motion. Because this second motion to dismiss is not

at issue in the instant appeal, we do not discuss it further.

14

As discussed further infra, Nases held that the “naming of the

person owning the property in the indictment is surplusage.” 65 Haw. at 218,

649 P.2d at 1139 (citations omitted).

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FOFs/COLs, the circuit court recounted the factual background

leading up to Taylor’s federal prosecution and his indictment in

state court and then stated, in relevant part, as follows:

FINDINGS OF FACT

. . . .

9. . . . this [c]ourt finds and concludes that

[Taylor] has not shown at this time that one of the

sovereigns is acting as a tool of the other or that

the second prosecution by the state in this case is a

sham or cover for the federal prosecution.

CONCLUSIONS OF LAW

. . . .

4. The charged offense of Theft in the First Degree

in this state prosecution requires the proof of

elements not required by the federal offense of

Conspiracy to Traffic in Native American cultural

items. Theft in the First Degree requires proof that

the defendant obtained and exerted unauthorized

control or [sic] property of another. This

requirement is substantially different and more

stringent than the requirement of the overt act under

the federal charge, in this case being the removal of

property from the Kanupa Cave. Additionally, the

state charge requires the property be that of another.

There is no allegation of this element in the federal

information against [Taylor]. The state charge also

requires the additional element of proof that the

value of the property taken exceeds $20,000, while the

federal charge requires no such proof. There is also

the specific intent requirement under the state

charge, that the offense be committed “with intent to

deprive the other of the property,” which is not a

requirement under the federal charge. Therefore, it

is clear that the state offense requires proof of a

fact not required by the former offense.

5. The law defining each of the offenses is intended

to prevent a substantially different harm or evil. The

federal offense charged is a conspiracy in violation

of 18 U.S.C[.] §371. The offense against the United

States, which is the target of the conspiracy, is the

illegal trafficking of Native American cultural items

in violation of 18 U.S.C. §1170(b). The obvious

import of this law is to discourage the illegal

marketing of such cultural items. Apparently such

illegal trafficking can occur even when an object is

obtained in a manner that may not constitute theft.

In U.S. v. Corrow, 941 F. Supp[.] 1553 (D.N.M. 1996),

aff’d 119 F.3d 796 (10th Cir. 1997), the defendant was

convicted for agreeing to sell a Navajo ceremonial

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mask which he had purchased from a Navajo chanter’s

widow, in violation of 18 U.S.C. §1170(b). This case

illustrates that it is the trafficking of these

cultural objects and not their theft that constitutes

the acts prohibited by 18 U.S.C. §1170(b). Arguably,

18 U.S.C. §1170(b) seeks to protect the interests of

the various Native American cultures and the objects

related to their cultural heritage and history. This

is a far different interest from Hawaii’s theft

statute which protects persons from being deprived of

property rights by unauthorized takings. Therefore,

it is clear that the law defining each of the offenses

is intended to prevent a substantially different harm

or evil.

6. Since the conditions of H.R.S. §701-112(1)(a) have

been shown to exist in this case, the current state

prosecution is not barred by the [Taylor’s] conviction

in the federal case.

. . . .

15. The indictment in the state theft cases alleges,

inter alia, that [Taylor] “did obtain or exert

unauthorized control over the property of another...”

[Taylor] alleges that the property belongs to no one.

The State alleges that it has a property interest in

the property due to [HRS § 6E-7] which states “All

historic property located on lands or under waters

owned or controlled by the State shall be the property

of the State.”

16. The statutory definitions in [HRS] § 708-800, []

of the terms, “control over property”, “obtain”,

“property of another”, and “unauthorized control over

property” leads to the conclusion, as held in [Nases,

65 Haw. at 218, 649 P.2d at 1139], that “where the

offense is obtaining control over the property of

another, proof that the property was the property of

another is all that is necessary and the naming of the

person owning the property in the indictment is

surplusage.” In other words, the elements,

“unauthorized control of the property of another” of

theft, make it an offense for a person to exert

control over property when he is not authorized by the

person who has possession of or any other interest in

the same property.

(Some ellipses in original).

On December 13, 2007, Taylor filed, and the circuit

court granted, a motion for an interlocutory appeal pursuant to

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HRS § 641-17.15 On December 14, 2007, Taylor filed a notice of

interlocutory appeal.

C. ICA Appeal

1. Taylor’s arguments

In his opening brief to the ICA, Taylor contended that

the circuit court erred in denying his “claim that, as a matter of

law, the artifacts were not ‘property of another’ for purposes of

HRS §§ 708-800, 708-830(1), and 708-830.5(1)(a).” Taylor argued

that the indictment was based on the State’s theory that the

artifacts were “property of the museums that once cared for

them[,]” but “neither [the Bishop nor the Peabody Essex Museums]

possessed the artifacts or retained any sort of property interest

in them after they were repatriated under NAGPRA.” (Emphasis in

original). Taylor contended that “NAGPRA confirms that ownership

in such artifacts resides solely in the appropriate Native

Hawaiian organization[.]” Consequently, Taylor argued that “[t]o

properly indict someone for stealing repatriated artifacts from a

site such as Kanupa Cave, the State’s presentation to the grand

15

HRS § 641-17 (Supp. 2004) provides:

Upon application made within the time provided by the

rules of court, an appeal in a criminal matter may be

allowed to a defendant from the circuit court to the

intermediate appellate court, subject to chapter 602,

from a decision denying a motion to dismiss or from

other interlocutory orders, decisions, or judgments,

whenever the judge in the judge’s discretion may think

the same advisable for a more speedy termination of

the case. The refusal of the judge to allow an

interlocutory appeal to the appellate court shall not

be reviewable by any other court.

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jury must identify the Native Hawaiian organization to whom the

artifacts were repatriated, since that entity is the only

‘person,’ for purposes of HRS § 708-800’s definition of ‘property

of another,’ who possess[es] and retains all other property

interests in such artifacts.” Taylor also argued that NAGPRA

preempted HRS §§ 6E-1 and 6E-7.

Taylor further argued that the circuit court erroneously

denied his HRS § 701-112 claim because the state offense of theft

in the first degree and the federal offense of conspiracy to

traffic in native Hawaiian artifacts required proof of the same

facts. Taylor also argued that the legislatures that enacted the

laws defining each of the two offenses did not intend to prevent

substantially different harms or evils.16

2. The State’s arguments

The State did not explicitly address Taylor’s

sufficiency of the evidence argument, but instead contended that

it need not, under Nases, “name the artifacts’ actual owner in the

charging document[]” and that the “indictment contain[ed] the

necessary charging information: that [Taylor] ‘did obtain or

exert unauthorized control over the property of another.’” The

State further argued that it was “important” that Taylor could not

claim “ownership in the stolen property[ and, f]or this reason, it

makes no difference whether the artifacts are owned by the

16

Taylor raised two other points of error to the ICA that are not

challenged in his application and will not be addressed further.

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repatriating museums, the Native Hawaiian groups that reburied the

artifacts, or the State itself.” Moreover, the State argued that

it has a statutory interest pursuant to HRS chapter 6E to all

historic property on State land and a common law interest in

property buried on its land.

Regarding Taylor’s HRS § 701-112 claim, the State argued

that Taylor “was federally convicted, and then prosecuted by the

State, for entirely different criminal conduct[,]” (emphasis in

original) and that the charged offenses required proof of

“different elements[.]” The theft indictment focused on Taylor

“obtaining control over another’s property, with the intent to

deprive[,]” while the federal conviction involved “conspiracy to

illegally traffic Native Hawaiian cultural items obtained in

violation of NAGPRA.” (Emphasis omitted). The State also argued

that the statutes defining the state and federal offenses were

“intended to prevent ‘substantially different harm[s] or

evil[s].’” (Brackets in original).

3. The ICA’s decision

In its February 23, 2011, Memorandum Opinion, the ICA

found, relying on Nases,

that the artifacts did not belong to Taylor in light

of evidence that the artifacts once were possessed by

Emerson and the museums and that the State, Hui

Malama, OHA, and Bishop Museum participated in the

repatriation and reburial at Kanupa Cave. The

identity of the actual owner of the artifacts is not

required, and the evidence on appeal reveals the

previous possession of the artifacts by the Emerson

Collection, its sale of the artifacts to the Bishop

and Peabody [Essex] Museums, and the involvement by

the State and other entities in the repatriation of

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the artifacts from the museums and reburial in Kanupa

Cave. Irrespective of the State’s later assertion

that it owned the artifacts, specification of the

actual owner of the property for purposes of this

theft charge is not required and only evidence that

the property was not that of Taylor is required.

Taylor, 2011 WL 661793, at *9 (emphasis added).

The ICA declined to address Taylor’s preemption

arguments, which it found were not necessary to the disposition of

Taylor’s case. Id.

Regarding Taylor’s HRS § 701-112 claim, the ICA found

that theft in the first degree “requires proof of the facts that

the item taken had a value of over $20,000 and the person intended

to deprive the owner of the property[,]” which “were not required

for the federal conspiracy and trafficking offenses.” Id. at *3.

The ICA also held that the primary purpose of the state theft

statute was to “protect[] owners from the deprivation of their

property.” Id. at *4. The ICA concluded that this purpose

differed from the two purposes of the federal conspiracy statute,

which are to “protect[] society from the dangers of concerted

criminal activity” and stop “threat[s] to social order[,]” and of

NAGPRA, whose primary purpose “is to assist Native Americans in

the repatriation of items that the tribes consider sacred[.]” Id.

at *4 (internal quotation marks and citations omitted).

Accordingly, the ICA affirmed the circuit court’s

December 13, 2007, order.17 Id. at *10. The ICA entered its

17

As noted supra in note 2, we interpret the reference to the

December 13, 2007 order as a clerical error.

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judgment on March 16, 2011. Taylor timely filed his application

for a writ of certiorari on May 18, 2011. The State timely filed

a response on June 2, 2011.

II. Standards of Review

A. Sufficiency of evidence to support an indictment

In their briefs to the ICA, the parties disputed the

applicable standard of review for a motion to dismiss an

indictment. Taylor asserted that the applicable standard was de

novo based on Wright v. Home Depot U.S.A., Inc., 111 Hawai#i 401,

407, 142 P.3d 265, 271 (2006), because the questions before the

ICA involved statutory interpretation. The State argued that the

applicable standard for appellate court review of a circuit

court’s motion to dismiss was an abuse of discretion pursuant to

State v. Akau, 118 Hawai#i 44, 51, 185 P.3d 229, 236 (2008).

In cases involving allegations of prosecutorial abuse

or misconduct, this court has applied an abuse of discretion

standard when reviewing a motion to dismiss an indictment. See,

e.g., State v. Mendonca, 68 Haw. 280, 282-83, 711 P.2d 731, 733-

34 (1985) (involving an allegation that the State improperly

indicted the defendant under one statute instead of a second

statute). Nevertheless, in cases involving sufficiency of the

evidence to support an indictment, this court appeared to apply a

de novo standard. See, e.g., State v. Ontai, 84 Hawai#i 56, 59,

64, 929 P.2d 69, 72, 77 (1996) (discussing a conclusion of law,

but evaluating the evidence presented to the grand jury de novo);

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see also State v. Ganal, 81 Hawai#i 358, 367, 917 P.2d 370, 379

(1996) (although this court did not explicitly identify the

standard of review it was applying, this court evaluated the

totality of the evidence presented to the grand jury and

concluded that the evidence presented to the grand jury was

sufficient to elicit a strong suspicion and to support an

inference that the defendant committed a crime).

Therefore, because the instant case involves

sufficiency of the evidence to support an indictment, we review

the circuit court’s order de novo. See Ontai, 84 Hawai#i at 59,

64, 929 P.2d at 72, 77; Ganal, 81 Hawai#i at 367, 917 P.2d at

379.

Moreover, as this court noted in Ganal:

In reviewing the sufficiency of the evidence to

establish probable cause before the grand jury, every

legitimate inference that may be drawn from the

evidence must be drawn in favor of the indictment and

neither the trial court nor the appellate court on

review may substitute its judgment as to the weight of

the evidence for that of the Grand Jury. The evidence

to support an indictment need not be sufficient to

support a conviction.

Id. at 367, 917 P.2d at 379 (internal quotation marks, citation

and brackets omitted).

B. Motion to dismiss indictment pursuant to HRS § 701-112

“As the issue on appeal is strictly a matter of law,

the standard of review is de novo.” State v. Meyers, 100 Hawai#i

132, 134, 58 P.3d 643, 645 (2002) (citation omitted).

III. Discussion

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As set forth below, Taylor’s indictment for theft

alleged all of the essential elements of the offense and the

State presented sufficient evidence to the grand jury to find

probable cause that the artifacts were “property of another.”

When taken as a whole, the evidence submitted to the grand jury

was sufficient for “a person of ordinary caution or prudence to

believe and conscientiously entertain a strong suspicion” that

the artifacts were “property of another.” See Ganal, 81 Hawai#i

at 367, 917 P.2d at 379. However, the ICA erred in stating that

“only evidence that the property was not that of Taylor [was]

required” to constitute “property of another.” Finally, the ICA

did not err in affirming the circuit court’s holding that the

state prosecution was not barred by HRS § 701-112.

A. Taylor’s indictment for theft was supported by probable

cause

It is undisputed that Taylor’s indictment is facially

valid because it alleged all essential elements of the charged

offense, and Taylor does not argue that he was not informed of

the “nature and cause of the accusation against him[.]” See

State v. Jendrusch, 58 Haw. 279, 281, 567 P.2d 1242, 1244 (1977)

(internal quotation marks and citation omitted); State v. Stan’s

Contracting, Inc., 111 Hawai#i 17, 34, 137 P.3d 331, 348 (2006)

(internal citation omitted). Instead, Taylor argues that the

evidence presented to the grand jury was insufficient to support

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the theft charge18 because “the only basis [the State] proffered

to the grand jury for finding probable cause to find that the

artifacts were ‘property of another,’ is legally impossible,

since NAGPRA unambiguously divested the museums of any type of

property interest in the artifacts upon their repatriation and

reburial in Kanupa Cave.” Taylor also argues that the State’s

theory that it has an interest in the artifacts pursuant to HRS

chapter 6E is invalid because HRS chapter 6E is preempted by

NAGPRA.

Both Taylor and the State discuss NAGPRA at length, and

both assume that it governs the determination of who had

“possession of or any other interest in” the artifacts when

Taylor took them from the cave. However, at no point was the

grand jury advised of the existence or provisions of NAGPRA,19 or

given any direct evidence about whether or how it applies here.

Similarly, the parties vigorously dispute whether the State had

an interest in the artifacts pursuant to HRS chapter 6E based

upon the State’s ownership of the land where the cave is located.

However, although evidence of the State’s ownership of the land

18

Although Taylor argues in his application that the indictment

should be dismissed “due to insufficiency of the evidence before the grand

jury[,]” Taylor did not explicitly make this argument to the circuit court.

Nevertheless, the arguments he advanced to the circuit court, including his

arguments that “no one had possession of the artifacts when [Taylor] took them

from the cave” and that the State did not adduce evidence before the grand

jury that a native Hawaiian organization had a property interest in the

artifacts, are properly characterized as a sufficiency of the evidence

argument.

19

The only law on which the grand jury was instructed was the

applicable provisions of the Hawai#i Revised Statutes.

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was presented to the circuit court in connection with the motion

to dismiss, the grand jury was presented with no evidence

whatsoever regarding the ownership of the land.

Our task here is to determine whether the grand jury

had sufficient evidence before it to infer probable cause that a

violation of HRS § 708-830 took place, and not what, if this case

were to go to trial, the evidence might show with regard to the

identity of those with an interest in the property. Accordingly,

although we briefly discuss NAGPRA and its potential

applicability for background purposes, our decision is governed

by the evidence that was in fact presented to the grand jury, and

whether that evidence supported a finding of probable cause.

1. NAGPRA

NAGPRA was enacted on November 16, 1990, to “facilitate

the return of Native American cultural items and remains to the

tribes with whom those items are affiliated.”20 Fallon Paiute-

Shoshone Tribe v. U.S. Bureau of Land Mgmt., 455 F. Supp. 2d

1207, 1217 (D. Nev. 2006); see 25 U.S.C. § 3001 et seq. NAGPRA

essentially functions as a “dual statute[.]” Fallon Paiute-

Shoshone Tribe, 455 F. Supp. 2d at 1217; see 25 U.S.C. § 3001 et

seq. First, NAGPRA provides for the return of “cultural items

20

NAGPRA applies to both “Native American” and “Native Hawaiian”

cultural items. See 25 U.S.C. § 3001 et seq. A “Native American” is defined

as “of, or relating to, a tribe, people, or culture that is indigenous to the

United States.” 25 U.S.C. § 3001(9). A “Native Hawaiian” is defined as “any

individual who is a descendant of the aboriginal people who, prior to 1778,

occupied and exercised sovereignty in the area that now constitutes the State

of Hawaii.” 25 U.S.C. § 3001(10).

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that are excavated or discovered on Federal or tribal lands[21]

after November 16, 1990[.]” 25 U.S.C. § 3002(a). Second, NAGPRA

provides for the repatriation of human remains, funerary objects,

sacred objects, and objects of cultural patrimony that are held

by federal agencies, and museums or institutions that receive

federal funding.22 25 U.S.C. § 3005.

In the instant case, it is undisputed that the Kanupa

Cave artifacts were taken from the cave “in the late 1800s” by

J.S. Emerson and were then repatriated in 2003. Therefore,

although Taylor cites to NAGPRA’s “ownership or control”

provisions set forth in 25 U.S.C. § 3002(a)(1)-(2), involving

artifacts excavated or discovered on Federal or tribal lands

after November 16, 1990, it appears that those provisions are not

directly applicable to the instant case. See 25 U.S.C. §

3002(a)(1)-(2) (providing for the “ownership or control of Native

American cultural items which are excavated or discovered on

Federal or tribal lands after November 16, 1990”) (emphasis

added). Instead, assuming that the artifacts were in fact

repatriated pursuant to NAGPRA, it appears that 25 U.S.C.

§§ 3003, 3004 and 3005 are the provisions of NAGPRA that would

21

Relevant to the instant case, NAGPRA’s definition of “tribal land”

includes “any lands administered for the benefit of Native Hawaiians pursuant

to the Hawaiian Homes Commission Act, 1920, and section 4 of Public Law 86-3.”

25 U.S.C. § 3001(15)(C). Neither party argues that Kanupa Cave is located on

tribal land, as that term is defined in NAGPRA.

22

NAGPRA “does not apply to items found on private or state land,”

or “items held by museums that do not receive federal funds[.]” State ex rel.

Comm’r of Transp. v. Med. Bird Black Bear White Eagle, 63 S.W.3d 734, 753

(Tenn. Ct. App. 2001) (citation omitted).

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directly apply.

25 U.S.C. § 3003 requires federal agencies and museums

with “possession or control over holdings or collections of

Native American human remains and associated funerary objects” to

inventory such items and identify the cultural affiliation23

between these objects and “present-day Indian tribes and Native

Hawaiian organizations.” 25 U.S.C. § 3003(a) (emphasis added);

43 C.F.R. § 10.9 (2003). 25 U.S.C. § 3004 requires agencies or

museums with “holdings or collections of Native American

unassociated funerary objects, sacred objects, or objects of

cultural patrimony” to complete a summary of these items “in lieu

of an object-by-object inventory[,]” and to describe the cultural

affiliation of the collection “where readily ascertainable.” 25

U.S.C. § 3004(a) (emphasis added); see also 43 C.F.R. § 10.8. In

the instant case, the record does not establish whether the

artifacts were within 25 U.S.C. §§ 3003 or 3004.24

25 U.S.C. § 3005(a) provides detailed requirements for

the repatriation of “Native American human remains and objects

23

“‘[C]ultural affiliation’ means that there is a relationship of

shared group identity which can be reasonably traced historically or

prehistorically between a present day Indian tribe or Native Hawaiian

organization and an identifiable earlier group.” 25 U.S.C. § 3001(2).

24

The dissent appears to conclude that the artifacts at issue in the

instant case were classified as “sacred objects or objects of cultural

patrimony” under NAGPRA. Dissenting opinion at 24-25. However, the record

does not contain any evidence indicating how the artifacts were classified.

Accordingly, we do not express an opinion on this issue.

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possessed or controlled by Federal agencies and museums[.]”25

See also 43 C.F.R. § 10.10. For example, pursuant to 25 U.S.C.

§ 3005(a)(1) and 43 C.F.R. § 10.10(b)(1), a federal agency or

museum must “expeditiously” return human remains and associated

funerary objects upon request by a lineal descendant, Indian

tribe or native Hawaiian organization, where a cultural

affiliation with the tribe or organization has been established

pursuant to 25 U.S.C. § 3003 and 43 C.F.R. § 10.10(b).

Similarly, 25 U.S.C. § 3005(a)(2) and 43 C.F.R. § 10.10(a)(1)

provide for the “expeditious[]” return of “unassociated funerary

objects, sacred objects or objects of cultural patrimony” upon

request by an Indian tribe or native Hawaiian organization, where

a cultural affiliation with the tribe or organization has been

shown pursuant to 25 U.S.C. § 3004 and 43 C.F.R. § 10.10(a)(1),

and where the affiliated tribe or organization “presents evidence

which . . . would support a finding that the museum or Federal

agency does not have a right of possession to the objects”26 as

25

In addition, 25 U.S.C. § 3005(a)(5) and 43 C.F.R. § 10.10(c) set

forth several exceptions to the general requirements for repatriation.

26

“[R]ight of possession” is defined in 25 U.S.C. § 3001 as:

possession obtained with the voluntary consent of an

individual or group that had authority of alienation.

The original acquisition of a Native American

unassociated funerary object, sacred object or object

of cultural patrimony from an Indian tribe or Native

Hawaiian organization with the voluntary consent of an

individual or group with authority to alienate such

object is deemed to give right of possession of that

object, unless the phrase so defined would, as applied

in section 3005(c) of this title, result in a Fifth

Amendment taking by the United States as determined by

(continued...)

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required under 43 C.F.R. § 10.10(a)(1)(iii).

In sum, when remains or cultural objects held by a

museum subject to NAGPRA are determined to be affiliated with a

Native American tribe or native Hawaiian organization, the

remains or cultural objects “are to be repatriated expeditiously

upon request.” See Fallon Paiute-Shoshone Tribe, 455 F. Supp. 2d

1218 (citing 25 U.S.C. § 3005(a) and 43 C.F.R. § 10.10(b)).27 In

addition, “[t]he return of cultural items covered by this chapter

shall be in consultation with the requesting lineal descendant or

tribe or organization to determine the place and manner of

delivery of such items.” 25 U.S.C. § 3005(a)(3); see also 43

C.F.R. § 10.10(d). Moreover, with regard to unassociated

funerary objects, sacred objects, and objects of cultural

26

(...continued)

the United States Court of Federal Claims pursuant to

28 U.S.C. 1491 in which event the “right of

possession” shall be as provided under otherwise

applicable property law. The original acquisition of

Native American human remains and associated funerary

objects which were excavated, exhumed, or otherwise

obtained with full knowledge and consent of the next

of kin or the official governing body of the

appropriate culturally affiliated Indian tribe or

Native Hawaiian organization is deemed to give right

of possession to those remains.

25 U.S.C. § 3001(13).

The regulations similarly define “[r]ight of possession” with

regard to unassociated funerary object, sacred object or object of cultural

patrimony, but do not extend this definition to human remains or associated

funerary objects. 43 C.F.R. § 10.10(a)(2). In the instant case, it is

undisputed that J.S. Emerson “took” the artifacts from Kanupa Cave and there

is no evidence to suggest that he obtained the consent of an individual or

group that had authority of alienation.

27

Although Fallon Paiute-Shoshone Tribe solely concerned “remains,”

455 F. Supp. 2d 1218, as noted herein, funerary objects, sacred objects, and

objects of cultural patrimony that are subject to NAGPRA also must be

expeditiously repatriated upon a showing of cultural affiliation. 25 U.S.C.

§ 2005(a)(1)- (2); 43 C.F.R. § 10.10.

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patrimony, a museum must generally return the objects upon

request “unless it can . . . prove that it has a right of

possession to the objects.” 25 U.S.C. § 3005(c); see also 43

C.F.R. § 10.10(a)(iii)-(iv).

In the instant case, the State did not provide evidence

to the grand jury regarding whether a cultural affiliation

between the Kanupa Cave artifacts and a native Hawaiian

organization had been established pursuant to 25 U.S.C. §§ 3003

or 3004. However, assuming that the Kanupa Cave artifacts were

repatriated pursuant to NAGPRA as Taylor suggests, the artifacts

would have been repatriated to a culturally affiliated

organization or to a lineal descendant. See 25 U.S.C. § 3005(a).

Accordingly, the individual or organization to whom the artifacts

were repatriated would have had a right of possession in the

artifacts at the time the artifacts were repatriated.

2. The State presented sufficient evidence to the grand

jury to maintain Taylor’s indictment

Taylor contends in his application that the State

presented insufficient evidence to the grand jury regarding the

“property of another” element of the offense. Specifically,

Taylor argues that the State only presented evidence to the grand

jury that the Bishop and Peabody Essex Museums previously owned

the artifacts, and further argues that the museums do not own the

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artifacts after repatriation.28

“A grand jury indictment must be based on probable

cause.” Ganal, 81 Hawai#i at 367, 917 P.2d at 379 (quotation

marks and citations omitted). “Probable cause” has been defined

as “a state of facts as would lead a person of ordinary caution

or prudence to believe and conscientiously entertain a strong

suspicion of the guilt of the accused.” Id. (citation, internal

quotation marks, and brackets omitted). Furthermore, in order to

support an indictment, the prosecution must provide evidence of

each essential element of the charged offense to the grand jury.

Ontai, 84 Hawai#i at 63-64, 929 P.2d at 76-77. “If no evidence

is produced as to a material element of the offense, a person of

ordinary caution and prudence could not have a ‘strong suspicion’

that the defendant is guilty of the [charged] crime.” Id. at 64,

929 P.2d at 77.

Therefore, in order for the grand jury to have found

probable cause to support Taylor’s indictment for first degree

theft, the State must have produced evidence of each essential

element of the offense. See Ontai, 84 Hawai#i at 64; 929 P.2d at

77. This court has held that there are three material elements

for theft in the first degree under HRS §§ 708-830(1) and 708-

28

In its answering brief, the State disputed Taylor’s

characterization of the theory it presented to the grand jury and argued that

“it never relied on evidence that the artifacts were property of ‘the museums

that once cared for them’ in order to prove particular ownership” and that

“[t]he charging instrument was not, contrary to [Taylor’s] suggestion,

obtained under this theory.” It appears that the State is correct, in that it

did not explicitly identify any specific theory of ownership during its

presentation to the grand jury.

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830.5(1)(a): that “the defendant intended to: (1) obtain or

exert control over the property of another; (2) deprive the other

of his or her property; and (3) deprive another of property that

exceeds $20,000 in value.” State v. Duncan, 101 Hawai#i 269,

279, 67 P.3d 768, 778 (2003). HRS § 708-800 defines “[p]roperty

of another” as “property which any person, other than the

defendant, has possession of or any other interest in[.]”29 Id.

Because Taylor does not dispute that the State presented evidence

satisfying the second and third elements for theft in the first

degree, we focus on the first element – that Taylor obtained or

exerted control over the property of another. See id. at 279, 67

P.3d at 778.

The following facts were presented to the grand jury

through the testimony of Agent Kaikana: (1) in the 1800s, J.S.

29

Because the plain language of HRS § 708-800 mentions both

“possession” and “any other interest in” property, the statute appears to

contemplate that multiple parties could have a concurrent or shared property

interest in the property at issue. However, “other interest” is not defined

in the Hawai#i Revised Statutes nor is it defined in the Model Penal Code,

from which Hawai#i derived its definition of “property of another.” Judicial

Council of Hawaii, Hawaii Penal Code (Proposed Draft) at 356 (1970); see Model

Penal Code and Commentaries article 223 (1962).

The State asserts that it “provided evidence of at least four

named entities with a clear cut ‘other interest’ in the artifacts[,]” i.e.,

the State, Hui Malama, OHA, and the Bishop Museum, and that NAGPRA does not

“preclude those four groups from having an ‘other interest’ in the

artifacts[.]” More specifically, the State argues that “[b]ecause Hui Malama

and OHA (and perhaps Bishop Museum as well) have at least a cultural interest

in the artifacts, [HRS] § 708-800’s ‘other interest’ standard is easily

satisfied.” However, the State cites no authority for the position that an

“other interest” encompasses a “cultural interest[.]” The State further

argues that “the Bishop Museum and the State also have an ‘other interest’ in

the artifacts because they, like Hui Malama and OHA, participated in the

repatriation and reburial.” Because we conclude that the State presented

sufficient evidence to the grand jury to establish that someone other than

Taylor had a possessory interest in the artifacts, we do not address the

State’s arguments concerning “other” interests, and express no opinion with

regard to their merits.

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Emerson “took artifacts out of [Kanupa Cave,]” some of which he

then sold to the Bishop Museum and the Peabody Museum Essex in

Massachusetts; (2) those artifacts were “repatriated” from the

museums and “reburied” at Kanupa Cave;30 (3) “Hui Malama,

. . . OHA, [the] State, and the Bishop Museum . . . . all got

together, brought the thing [sic] back to Kanupa and it was

repatriated”; (4) Taylor, who owned a store in Captain Cook that

sold antiquities, and an accomplice went to the cave “with the

direction of some third party”; (5) Taylor and the accomplice

“removed the rock that was blocking the cave entrance” and went

inside; (6) there they found “a lot of artifacts or items that

were in woven lauhala basket [sic] and wrapped in black cloth”;

(7) they took about 157 artifacts from the cave and tried to sell

them; (8) some of the artifacts bore “Emerson tags or [] labels”;

(9) Taylor knew that the artifacts belonged to the J.S. Emerson

Collection; (10) Taylor, “[t]o hide or conceal the sale of these

items, [took] the Emerson tags off of the items, the artifacts,

to sell [them]”; and (11) the estimated value of the artifacts

was between $800,000 and $1.2 million.

Based on the foregoing evidence, “a person of ordinary

caution or prudence” could “believe and conscientiously entertain

a strong suspicion” that the artifacts were “property of

30

The grand jury was not provided with a definition of

“repatriated”; however, it is commonly defined as “to restore or return to the

country of origin, allegiance, or citizenship.” Merriam-Webster’s Collegiate

Dictionary 1055 (11th ed. 2009).

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another.” See Ganal, 81 Hawai#i at 367, 917 P.2d at 379. Most

notably, the grand jury heard evidence that artifacts were worth

at least $800,000. It further heard evidence from which it could

reasonably be inferred that the artifacts had been purposely

secreted in the cave and not simply discarded, including the fact

that the cave entrance had been covered with a rock, the items

were enclosed in lauhala and black cloth, and reburial had been

undertaken in a joint effort involving the State of Hawai#i, as

well as “Hui Malama, . . . OHA, . . . and the Bishop Museum[.]”

Thus, the evidence before the grand jury did not

suggest that the artifacts were abandoned.31 If the artifacts

were abandoned, they could not, by definition, be “property of

another,” and an indictment for first degree theft could not be

maintained. Indeed, in his application Taylor analogizes his

case to an environmentalist picking up a discarded soda can to

recycle it or a small boy picking up a penny by the side of the

road, and suggests that their conduct would be criminalized by

the ICA’s holding. However, those hypothetical cases are clearly

distinguishable, since they did not involve property worth at

least $800,000 which the evidence reasonably suggested had been

carefully wrapped and secreted in a cave as part of a multi-party

31

Abandoned property is generally defined as “that to which the

owner has voluntarily relinquished all right, title, claim, and possession,

with the intention of terminating his or her ownership, but without vesting

ownership in any other person, and with the intention of not reclaiming any

future rights therein.” 1 Am. Jur. 2d Abandoned, Lost, and Unclaimed Property

§ 3 (2005) (footnote omitted).

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repatriation effort.

Nor did the evidence in the grand jury suggest that

Taylor owned the items or that he had permission to take the

artifacts. To the contrary, the evidence of Taylor’s conduct

after he took the items (removing the tags so that they would be

more difficult to trace) supports the reasonable inference that

he neither owned them nor had permission to take them.

Rather, the value of the items and the manner and

circumstances in which they were reburied were sufficient to

create a “strong suspicion” that someone other than Taylor

retained a right of possession in the artifacts and that the

items were accordingly the “property of another” when Taylor took

them. It is true, as Taylor points out, that the evidence

presented to the grand jury was not sufficient to establish

exactly which entity or entities had a possessory or other

interest in the artifacts.32 However, our caselaw does not

require that level of specificity in order to sustain an

32

Accordingly, we respectfully disagree with the dissent’s assertion

that Agent Kaikana’s testimony “left the impression” that the artifacts

belonged to the Bishop Museum or the Peabody Essex Museum. Dissenting opinion

at 36-37. Agent Kaikana testified that J.S. Emerson “took artifacts out of

that cave” and sold some of them to the Bishop Museum and Peabody Essex

Museum, and that those artifacts were in turn “repatriated from both the

Bishop Museum and the Peabody Essex [Museum]” and were “reburied” at Kanupa

Cave by “Hui Malama, . . . OHA, [the] State, and the Bishop Museum.” Inasmuch

as Agent Kaikana testified that the artifacts were “eventually repatriated

from both the Bishop Museum and the Peabody Essex [Museum],” his testimony did

not “[leave] the impression” that the artifacts continued to belong to either

of the museums. Moreover, although Agent Kaikana testified that items

recovered during the investigation in Taylor’s case bore J.S. Emerson

Collection labels and/or were part of the museums’ collections, this testimony

was relevant to prove that the items in Taylor’s possession were the same

items that had been removed from Kanupa Cave.

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indictment. See Ganal, 81 Hawai#i at 367, 917 P.2d at 379

(“[T]he evidence to support an indictment need not be sufficient

to support a conviction.”).

This point is illustrated by our holding in Nases,

where the defendant was charged with and convicted of theft of a

calculator pursuant to HRS § 708-830. 65 Haw. at 218, 649 P.2d

1139. On appeal, the defendant argued that there was a fatal

variance between the charge and the evidence presented against

him at trial. Id. The charged offense alleged that the

calculator was the property of “Setsuko Yokoyama and Setsuko

Yokoyama doing business as Kalakaua Kleaners, whereas it was

actually the property of Kalakaua Kleaners, a corporation.” Id.

This court held that it was “undisputed that the calculator did

not belong to [the defendant] but was the property of another.

The particular ownership of the property in question was not an

essential element in proving the crime and there is no fatal

variance between the charge and the proof.” Id. at 218, 649 P.2d

at 1139-40. Rather,

[i]t has long been settled that where the offense is

obtaining control over the property of another, proof

that the property was the property of another is all

that is necessary and the naming of the person owning

the property in the indictment is surplusage.

Id. (emphasis added) (citations omitted).

Although the facts of Nases differ from the instant

case in that Nases involved a variance between the indictment and

the evidence presented at trial, Nases supports the proposition

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that the State need only prove that the property taken is that

“of another.” Id. Therefore, because the State presented

sufficient evidence that the artifacts were “property of

another,” it was not required to present evidence to the grand

jury establishing which entity or entities had a possessory

interest in the artifacts.33

However, the ICA erred when it stated that

“specification of the actual owner of the property for purposes

of this theft charge is not required and only evidence that the

property was not that of Taylor is required.” Taylor, 2011 WL

661793, at *9 (emphasis added). As discussed supra, HRS § 708-

800 defines “property of another” in HRS § 708-830(1) as

“property which any person, other than the defendant, has

possession of or any other interest in[.]” “Property” is defined

in HRS § 708-800 as “any money, personal property, real property,

thing in action, evidence of debt or contract, or article of

value of any kind.” Consequently, as Taylor correctly contends,

“something may well be ‘property’ (because it is an article of

value of some kind) but not yet ‘property of another’ (because

someone does not possess it or have any other interest in it).”

Therefore, the ICA erred when it stated that “only evidence that

the property was not that of Taylor is required.” Id.

33

Accordingly, we respectfully disagree with the dissent’s

conclusion that the indictment could not be sustained absent “the presentation

of facts supporting a property interest in a Native Hawaiian organization[.]”

Dissenting opinion at 26; see also dissenting opinion at 40.

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In sum, because the State presented evidence that “a

person of ordinary caution or prudence” could “believe and

conscientiously entertain a strong suspicion” that the artifacts

were the “property of another,” there was sufficient evidence to

support Taylor’s indictment, and the circuit court did not err in

denying his motion to dismiss on this ground.

B. The ICA did not err in affirming the circuit court’s holding

that the state prosecution was not barred by HRS § 701-112

Taylor argues that “the ICA gravely erred in holding

that [Taylor’s] prior federal conviction did not bar the State’s

prosecution in this matter under HRS § 701-112,” because the

state prosecution required proof of the same facts as the federal

prosecution. For the reasons set forth below, Taylor’s argument

is without merit.

HRS § 701-112 provides in relevant part:

When behavior constitutes an offense within the

concurrent jurisdiction of this State and of the

United States or another state, a prosecution in any

such other jurisdiction is a bar to a subsequent

prosecution in this State under any of the following

circumstances:

(1) The first prosecution resulted in an

acquittal which has not subsequently been set

aside or in a conviction as defined in section

701-110(3), and the subsequent prosecution is

based on the same conduct, unless:

(a) The offense for which the defendant is

subsequently prosecuted requires proof of

a fact not required by the former offense

and the law defining each of the offenses

is intended to prevent a substantially

different harm or evil[.]

(Emphasis added).

Thus, assuming arguendo that the theft and conspiracy

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offenses in the instant case were based on the same underlying

conduct,34 Taylor’s theft prosecution was permissible under HRS

§ 701-112(1)(a) if (1) the theft offense required proof of facts

not required for the conspiracy offense; and (2) the law defining

each of the offenses is intended to prevent a substantially

different harm of evil. See HRS § 701-112(1)(a).

This court has addressed HRS § 701-112 only once, in

State v. Myers, 100 Hawai#i 132, 134, 58 P.3d 643, 645 (2002).

However, Myers is inapposite because the sole issue considered by

this court was “whether [a Uniform Code of Military Justice]

Article 15 nonjudicial punishment is equivalent to a criminal

‘conviction’ as defined in HRS § 701-110(3).” Id. This court

held that the Article 15 nonjudicial punishment was not

equivalent to a conviction, as required under HRS § 701-112(1),

and thus the court was not required to consider whether the

exceptions set forth in HRS § 701-112(1)(a) applied. Id. at 137,

58 P.3d at 648. Thus, this court did not address the meaning of

the phrases “proof of a fact not required by the former offense”

and “substantially different harm or evil,” and therefore there

is no controlling authority on this point. See id.

1. Proof of a fact not required

In interpreting a statute, “where the statutory

34

While the State argued in the ICA and this court that the offenses

were not based on the same underlying conduct, this issue was not raised in

the circuit court. Because we conclude that the theft prosecution was

permissible under the two-pronged exception set forth in HRS § 701-112(1)(a),

we do not address this issue.

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language is plain and unambiguous, our sole duty is to give

effect to its plain and obvious meaning.” Awakuni v. Awana, 115

Hawai#i 126, 133, 165 P.3d 1027, 1034 (2007) (citation omitted).

The unambiguous language of HRS § 701-112(1)(a) states that a

subsequent prosecution is permissible if, inter alia, the

subsequent offense requires proof of some fact not required by

the former offense. The drafters of the Hawaii Penal Code noted

that “it seems very unjust to permit the defendant to be

prosecuted twice simply because of the fortuitous circumstance

that the defendant’s behavior constitutes an offense in more than

one jurisdiction[,]” unless the requirements set forth in HRS

§ 701-112(1)(a) are met. HRS § 701-112 cmt. (1993).35

In the instant case, Taylor was charged in state court

with theft in the first degree. HRS § 708-830.5(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 § 708-830(1) further

provides that “[a] person commits theft if the person . . .

obtains or exerts unauthorized control over the property of

another with intent to deprive the other of the property.” As

noted supra, this court explained in Duncan that there are three

material elements for theft in the first degree: that “the

defendant intended to: (1) obtain or exert control over the

35

Although the commentary accompanying the Hawaii Penal Code “may be

used as an aid in understanding the provisions of [the] Code,” it is “not []

evidence of legislative intent.” HRS § 701-105 (1993).

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property of another; (2) deprive the other of his or her

property; and (3) deprive another of property that exceeds

$20,000 in value.” 101 Hawai#i at 279, 67 P.3d at 778.

In contrast, in his federal prosecution, Taylor pled

guilty to conspiracy under 18 U.S.C. § 371 to commit trafficking

under 18 U.S.C. § 1170(b). 18 U.S.C. § 371 (1994) defines

conspiracy, in relevant part, as follows:

If two or more persons conspire either to commit any

offense against the United States, or to defraud the

United States, or any agency thereof in any manner or

for any purpose, and one or more of such persons do

any act to effect the object of the conspiracy, each

shall be fined under this title or imprisoned not more

than five years, or both.

18 U.S.C. § 1170(b) defines the trafficking crime as:

Whoever knowingly sells, purchases, uses for profit,

or transports for sale or profit any Native American

cultural items obtained in violation of [NAGPRA] shall

be fined in accordance with this title, imprisoned not

more than one year, or both, and in the case of a

second or subsequent violation, be fined in accordance

with this title, imprisoned not more than 5 years, or

both.

Therefore, in order to prove Taylor’s conspiracy

offense, the federal government was required to prove that (1)

Taylor and one or more persons conspired to commit an offense

against the United States; (2) the offense involved the knowing

sale, purchase, use for profit, or transport for sale or profit

of items; (3) the items were Native American cultural items;

(4) the items were or would be obtained in violation of NAGPRA;

and (5) Taylor and/or one of his co-conspirators committed an act

in furtherance of the conspiracy. See 18 U.S.C. §§ 371 and

1170(b).

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Thus, Taylor’s federal prosecution, unlike his state

prosecution, did not require proof of facts that the property

involved had a value in excess of $20,000. Compare 18 U.S.C.

§§ 371 and 1170(b) with HRS §§ 708-830(1) and 708-830.5(1)(a).

The value element of the first degree theft offense is an

additional fact required by HRS § 701-112.36 Therefore, the ICA

correctly concluded that the state theft offense requires proof

of a value element, which the federal conspiracy offense does

not.37

Nevertheless, Taylor argues that HRS § 701-

112(1)(a) precludes the theft charge because all the facts

required to convict under HRS §§ 708-830(1) and 708-830.5(1)(a)

are admitted to in his plea agreement.38 For example, Taylor

36

Taylor argues that HRS § 701-112(1)(a) does not set forth a “same

elements” test, but rather requires a more fact-specific approach. However,

even assuming arguendo HRS § 701-112(1)(a) does not set forth a “same

elements” test, Taylor’s argument fails because Taylor’s prosecution for theft

in state court requires proof of facts not required by his federal conspiracy

conviction, i.e., that the property involved had a value in excess of $20,000.

37

Since the requirement that the property involved have a value in

excess of $20,000 clearly satisfies the requirement set forth in HRS § 701-

112(1)(a) that the subsequent prosecution involve “proof of a fact not

required by the former offense[,]” we do not address whether the element of

“intent to deprive” was required in both the federal and state prosecutions,

although this element was raised and discussed by the ICA. See Taylor, 2011

WL 661793, at *3.

38

In support of this assertion, Taylor cites Yates v. United States,

354 U.S. 298, 312 (1957), overruled on other grounds by Burks v. United

States, 437 U.S. 1 (1978), for the proposition that “[i]n pleading guilty,

[Taylor] admitted to numerous overt acts and thus, much like a general

verdict, each of those facts predicated and were required by his federal

conviction.” However, Yates is inapposite because it considered alternative

theories of guilt offered in support of a single charge. Id. There, the

Court noted that a verdict must be set aside “in cases where the verdict is

supportable on one ground, but not on another, and it is impossible to tell

which ground the jury selected.” Id. (citations omitted). Accordingly, Yates

stands for the proposition that, where the jury returns a general verdict, a

(continued...)

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argues that “[t]he factual basis for [his] guilty plea in the

federal case also included the facts that he attempted to sell

one artifact for $40,000 and another for $5,600, and actually did

sell two others for $150 and $2,083.” Although Taylor’s federal

plea agreement mentions the prices at which Taylor attempted to

sell and did sell several items, neither 18 U.S.C. § 371 nor 18

U.S.C. § 1170(b) has a value requirement, and thus such facts

were unnecessary to Taylor’s conviction. The values listed in

Taylor’s federal plea agreement did not become required elements

of his conspiracy offense merely by their placement in the plea

agreement.

2. Substantially different harm or evil

Additionally, HRS § 701-112(1)(a) requires the former

and subsequent offenses be intended to prevent substantially

different harms or evils. Taylor does not challenge the ICA’s

conclusion that HRS §§ 708-830(1) and 708-830.5(1)(a) and 18

U.S.C. §§ 371 and 1170(b) are intended to prevent substantially

different harms or evils. Moreover, any such argument is without

merit.

In determining the harm or evil a statute is intended

to prevent, this court looks primarily to the language of the

statute. See, e.g., State v. Rapozo, 123 Hawai#i 329, 338, 235

38

(...continued)

conviction will not stand unless each theory of guilt offered is supported by

the evidence. See id. It does not, as Taylor argues, stand for the

proposition that all of the facts Taylor pled to were “required” for his

federal conviction, as that term is used in HRS § 701-112(1)(a).

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P.3d 325, 334 (2010) (“HRS § 702-236 further requires

consideration of ‘the harm or evil sought to be prevented by the

law defining the offense [.]’ As with all efforts to determine

legislative intent, that inquiry relies primarily on the plain

language of the statute.”) (brackets in original) (citations

omitted); State v. Kupihea, 98 Hawai#i 196, 206, 46 P.3d 498, 508

(2002) (citation omitted) (noting that legislative intent is

“obtained primarily from the language of the statute”). This

court has explained that the purpose of Hawaii’s theft statute is

to “protect[] owners from the deprivation of their property[.]”

State v. Freeman, 70 Haw. 434, 439, 774 P.2d 888, 892 (1989).

As noted by the ICA, the United States Supreme Court

has identified the harm or evil intended to be prevented by 18

U.S.C. § 371, concerning conspiracy, as follows:

It is well settled that the law of conspiracy serves

ends different from, and complementary to, those

served by criminal prohibitions of the substantive

offense. Because of this, consecutive sentences may be

imposed for the conspiracy and for the underlying

crime. Our decisions have identified two independent

values served by the law of conspiracy. The first is

protection of society from the dangers of concerted

criminal activity. . . .

The second aspect is that conspiracy is an inchoate

crime. This is to say, that, although the law

generally makes criminal only antisocial conduct, at

some point in the continuum between preparation and

consummation, the likelihood of a commission of an act

is sufficiently great and the criminal intent

sufficiently well formed to justify the intervention

of the criminal law. The law of conspiracy identifies

the agreement to engage in a criminal venture as an

event of sufficient threat to social order to permit

the imposition of criminal sanctions for the agreement

alone, plus an overt act in pursuit of it, regardless

of whether the crime agreed upon actually is

committed.

United States v. Feola, 420 U.S. 671, 693-94 (1975) (citations

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omitted).

Applying the rationale of Feola here, the state theft

offense with which Taylor was charged addresses a harm or evil

(the deprivation of property rights) different from that

addressed by the federal conspiracy statute, which addresses the

threat posed by agreements to commit criminal conduct.

Moreover, the purpose of NAGPRA has been articulated by

the federal courts as follows:

The primary purpose of NAGPRA, which is to assist

Native Americans in the repatriation of items that the

tribes consider sacred, differs from that of the

Antiquities Act, which is directed against the

unlawful taking or destruction of property. Because

the intended purposes of the two acts differ

significantly, they should not be treated similarly

for sentencing calculations.

United States v. Corrow, 941 F. Supp. 1553, 1567 (D.N.M. 1996),

aff’d, 119 F.3d 796 (10th Cir. 1997).

Accordingly, NAGPRA and the state theft statutes were

intended to prevent substantially different harms or evils,

because the protection of graves and cultural items that is the

purpose of NAGPRA and the protection from the deprivation of

property that is the purpose of Hawaii’s theft statute,

constitute substantially different interests. While both

statutes involve a deprivation of some interest, the theft statue

seeks to protect general property interests, while NAGPRA

protects a very specific interest in Native American cultural

items and graves. Moreover, NAGPRA contains a savings provision

that expressly states that the statute is in no way intended to

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interfere with either state or federal theft law. 25 U.S.C.

§ 3009(5) (“Nothing in this chapter shall be construed to. . .

limit the application of any State or Federal law pertaining to

theft or stolen property.”).

Therefore, the ICA correctly held that Taylor’s theft

offense required proof of facts which his federal conspiracy

offense did not, and was designed to prevent a substantially

different harm. Accordingly, Taylor’s prosecution in state court

is not barred under HRS § 701-112 and the circuit court did not

err in denying Taylor’s motion to dismiss in this respect.39

IV. Conclusion

Although the ICA erred in stating that “only evidence

that the property was not that of Taylor [was] required” to

establish that the artifacts were the “property of another,” we

hold that the State nonetheless presented sufficient evidence to

the grand jury to find probable cause that the property taken was

“property of another.” We further hold that Taylor’s prosecution

in state court is not barred by HRS § 701-112 because the theft

charge requires proof of a fact not required for his federal

conspiracy offense, and the purposes behind the state and federal

statutes differ. Accordingly, we affirm the judgment of the ICA,

39

In the ICA, Taylor similarly argued that his state prosecution was

barred by article I, section 10 of the Hawai#i Constitution, concerning double

jeopardy. The ICA rejected this argument, and Taylor does not challenge this

holding in his application. Accordingly, we need not address this issue. See

Hawai#i Rules of Appellate Procedure (HRAP) Rule 40.1(d)(1).

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which, as corrected by this opinion,40 affirmed the circuit

court’s November 14, 2007 order denying Taylor’s motion to

dismiss the indictment.

Todd Eddins for /s/ Mark E. Recktenwald

petitioner/defendant-

appellant. /s/ Paula A. Nakayama

Kimberly Tsumoto Guidry /s/ James E. Duffy, Jr.

and Girard D. Lau, Deputy

Attorneys General, for /s/ Sabrina S. McKenna

respondent/plaintiff-

appellee.

40

See supra n.2.

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