NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
29-OCT-2020
07:48 AM
Dkt. 49 SO
NOS. CAAP-XX-XXXXXXX & CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
CAAP-XX-XXXXXXX
STATE OF HAWAI#I, Plaintiff-Appellee, v.
GARY J. FOUMAI, Defendant-Appellant
(CASE NO. 1CPC-XX-XXXXXXX)
AND
CAAP-XX-XXXXXXX
STATE OF HAWAI#I, Plaintiff-Appellee, v.
GARY FOUMAI, also known as GARY FOMAI, Defendant-Appellant
(CASE NO. 1CPC-XX-XXXXXXX)
APPEALS FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
SUMMARY DISPOSITION ORDER
(By: Ginoza, C.J., and Leonard and Wadsworth, JJ.)
In these consolidated appeals, Defendant-Appellant Gary
J. Foumai, also known as Gary Foumai and Gary Fomai (Foumai),
appeals from the Amended Judgment of Conviction and Sentence in
Criminal No. 1CPC-XX-XXXXXXX (Case 1), and the Amended Judgment
of Conviction and Sentence in Criminal No. 1CPC-XX-XXXXXXX (Case
2), both entered on July 1, 2019, in the Circuit Court of the
First Circuit (Circuit Court).1/ After Foumai pleaded no contest
in Cases 1 and 2, the Circuit Court convicted him in each case of
1/
The Honorable Todd W. Eddins presided in both of the underlying
cases.
On May 8, 2020, this court entered an Order Consolidating Appeals,
which consolidated appellate case numbers CAAP-XX-XXXXXXX and CAAP-XX-XXXXXXX
under CAAP-XX-XXXXXXX.
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER
Burglary in the Second Degree, in violation of Hawaii Revised
Statutes (HRS) § 708-811 (2014).2/ The Circuit Court's respective
sentences included, inter alia, an order in Case 1 that Foumai
pay restitution to TeamPraxis (TP) in the amount of $8,080.26,
and an order in Case 2 that Foumai pay restitution to DataHouse
Consulting, Inc. (DHI) in the amount of $5,022.19. See HRS
§ 706-646(2) (Supp. 2018).3/
On appeal, Foumai contends that the Circuit Court
abused its discretion in Cases 1 and 2 "when it found that
[Plaintiff-Appellee State of Hawai#i (State)] offered sufficient
evidence that it was more likely than not, that the victim lost
the amounts requested."
After reviewing the record on appeal and the relevant
legal authorities, and giving due consideration to the issues
raised and the arguments advanced by the parties, we affirm the
amended judgments of conviction and sentence for the reasons set
forth below.
I. Background
A. Case 1
The Circuit Court held a restitution hearing in Case 1
on May 21, 2019 and June 25, 2019. Jade Wong (Wong), the
compliance officer and authorized representative of Ike, a
holding company for TP, testified as to TP's losses resulting
2/
HRS § 708-811 provides:
Burglary in the second degree. (1) A person commits
the offense of burglary in the second degree if the person
intentionally enters or remains unlawfully in a building
with intent to commit therein a crime against a person or
against property rights.
(2) Burglary in the second degree is a class C felony.
3/
HRS § 706-646(2), entitled "Victim restitution," states, in
relevant part:
(2) The court shall order the defendant to make
restitution for reasonable and verified losses suffered by
the victim or victims as a result of the defendant's offense
when requested by the victim. The court shall order
restitution to be paid to the crime victim compensation
commission if the victim has been given an award for
compensation under chapter 351. If the court orders payment
of a fine in addition to restitution or a compensation fee,
or both, the payment of restitution and compensation fee
shall be made pursuant to section 706-651.
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from Foumai's burglary. Through Wong's testimony, the following
exhibits were entered into evidence over defense counsel's
objections:
Exhibit Description of exhibit
No.
1 Fireman's Fund Statement of Loss
Spreadsheet detailing company and
2 personal employee losses
Invoice from Alexander Brothers,
3 Ltd. (for $2,961.42)
Invoice from Jack's Son's Lock
4 Service (for $612.56)
Invoice from Building Concepts,
5 LLC (for $1,596.86)
These exhibits reflected TP's losses as follows:
Business loss $8,080.26
Employee loss $1,124.18
Total loss $9,204.44
Insurance Deductible $1,000.00
Total payable by Fireman's $8,204.44
Fund to TP
In its July 1, 2019 Order Imposing Restitution in Case
1, the Circuit Court found and concluded in relevant part:
Jade Wong . . . credibly testified at the May 21, 2019
hearing. The court received five exhibits into evidence[,
. . . which included the exhibits identified above.] The
court also considered the Updated Presentence Diagnosis and
Report dated December 20, 201[8].
Ms. Wong's testimony detailed the losses sustained by
[TP] as a result of . . . Foumai's commission of the crime
of burglary in the second degree on or about August 8, 2015
and August 10, 2015. . . . The claimed losses included the
theft and damage of company property totaling $8080.26 and
the personal property of [TP] employees totaling $1124.18.
. . . .
The court concludes that per HRS § 706-646, the State
has established by a preponderance of the evidence, see
State v. DeMello, 130 Hawai#i 332, 343[, 310 P.3d 1033,
1044] (App. 2013)[, vacated in part on other grounds, 136
Hawai#i 193, 361 P.3d 420 (2015),] that [TP] incurred
$8080.26 in reasonable and verifiable losses arising from
Foumai's conduct. The court concludes that the State did
not sufficiently establish evidence that the $1124.18 in
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claimed losses suffered by [TP] [employees] were reasonable
and verifiable losses to support the imposition of
restitution.
Based on the foregoing, it is ordered that . . .
Foumai pay restitution in the amount of $8080.26 to [TP].
(Footnote omitted).
B. Case 2
The Circuit Court held a restitution hearing in Case 2
on June 25, 2019. Wong, again as the compliance officer and
authorized representative of Ike, which was also a holding
company for DHI, testified as to DHI's losses resulting from
Foumai's burglary. Through Wong's testimony, the following
exhibits were entered into evidence over defense counsel's
objections:
Exhibit Description of exhibit
No.
Fireman's Fund Statement of Loss
1 and supporting documents
Jack's Son's Lock Service Invoice
2 #082015 (for $1,356.02)
Jack's Son's Lock Service Invoice
3 #082115 (for $853.40)
Jack's Son's Lock Service Invoice
4 #082315 (for $246.07)
These exhibits reflected DHI's losses as follows:
Business loss $5,022.19
Employee loss $3,025.94
Total loss $8,048.13
Insurance Deductible $1,000.00
Total payable by Fireman's $4,592.64
Fund to DHI
In its July 1, 2019 Order Imposing Restitution in Case
2, the Circuit Court found and concluded in relevant part:
Jade Wong . . . credibly testified at the hearing.
The court received four exhibits into evidence[, . . . which
included the exhibits identified above.] The court also
considered the Updated Presentence Diagnosis and Report
dated December 20, 201[8].
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Ms. Wong's testimony detailed the losses sustained by
[TP] [sic] as a result of . . . Foumai's commission of the
crime of burglary in the second degree on or about July 14-
15, 2015. . . . The claimed losses included the theft of
company property in the amount of $2566.70, the replacement
for locks damaged arising from the burglary totaling
$2455.49 (Exhibits 2-4), and the personal property of [DHI]
employees totaling $3025.94.
. . . .
The court concludes that per HRS § 706-646, the State
has established by a preponderance of the evidence, see
State v. DeMello, 130 Hawai#i 332, 343[, 310 P.3d 1033,
1044] (App. 2013)[, vacated in part on other grounds, 136
Hawai#i 193, 361 P.3d 420 (2015),] that [DHI] incurred
$5022.19 in reasonable and verifiable losses arising from
Foumai's conduct. The court concludes that the State did
not sufficiently establish evidence that the $3025.94 in
claimed losses suffered by [DHI] employees were reasonable
and verifiable losses to support the imposition of
restitution.
Based on the foregoing, it is ordered that . . .
Foumai pay restitution in the amount of $5022.19 to [DHI].
II. Discussion
Foumai asserts the same point of error in Cases 1 and 2
– that the Circuit Court "abused its discretion when it found
that the State offered sufficient evidence that it was more
likely than not, that the victim lost the amounts requested."
In particular, Foumai contends that Wong had no personal
knowledge of the respective losses of TP and DHI, and instead
relied on "what was reported to her," along with police reports,
documents and photographs. Foumai further argues that the
documentary exhibits received by the trial court through Wong
"lacked authentication, were based on hearsay and were
unreliable."
In general, the Hawai#i Rules of Evidence (HRE) do not
apply to sentencing proceedings.4/ See HRE Rule 1101(d)(3) ("The
rules . . . do not apply in . . . [m]iscellaneous proceedings
. . . [including] sentencing[.]"). Because restitution is part
of a defendant's sentence, it follows that the trial court may
order restitution as part of sentencing proceedings. See State
4/
The general rule is subject to an exception, not applicable here,
when a defendant raises a proper good-faith challenge to a prior conviction
used as a basis for the imposition or enhancement of a prison sentence. See
State v. Heggland, 118 Hawai#i 425, 443, 193 P.3d 341, 359 (2008).
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v. Kealoha, 142 Hawai#i 46, 60, 414 P.3d 98, 112 (2018) ("Whether
imposed by free standing order, or as a condition of probation,
restitution is part of the defendant's sentence and judgment of
conviction." (emphasis added)); State v. DeLima, No. CAAP-17-
0000914, 2019 WL 2265044, at *1-2 (Haw. App. May 28, 2019) (SDO)
(stating that the HRE generally do not apply to sentencing
proceedings, and concluding that the State presented sufficient
evidence to support a restitution order). Accordingly, here,
where the Circuit Court considered evidence regarding restitution
as part of sentencing proceedings, the HRE did not apply.
HRS § 706-646(2) "imposes four requirements before
restitution must be awarded; the victim's losses must be (1)
'reasonable,' (2) 'verified,' (3)'suffered . . . as a result of
the defendant's conduct,' and (4) 'requested by the victim.'"
State v. DeMello, 136 Hawai#i 193, 196, 361 P.3d 420, 423 (2015).
Thus, here, where TP and DHI requested restitution, the State was
required to demonstrate by a preponderance of the evidence that
the respective losses of TP and DHI were reasonable, verified and
caused by Foumai. See HRS § 706-646(2); State v. DeMello, 130
Hawai#i 332, 343-44, 310 P.3d 1033, 1044-45 (App. 2013), vacated
in part on other grounds, 136 Hawai#i 193, 361 P.3d 420 (2015).
The State bore the burden of making a prima facie showing of
these losses. See DeMello, 130 Hawai#i at 344, 310 P.3d at 1045.
If the State did so, the burden shifted to Foumai to come forward
with evidence supporting his challenge to the amounts requested.
See id.
At the restitution hearings in Cases 1 and 2, Wong
testified as to the losses sustained by TP and DHI as a result of
the burglaries by Foumai. In each case, Wong identified the
statement of loss received from the company's insurer, Fireman's
Fund, reflecting the itemized losses incurred by each company.
The supporting documents that Wong identified in her testimony
included internal spreadsheets itemizing the company and personal
employee losses, as well as invoices documenting the costs for
certain repairs. In her testimony, Wong linked each of these
documents to the losses that TP and DHI incurred as a result of
the burglaries, and all of the documents were received into
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evidence. Foumai offered no evidence supporting his challenge to
the amounts requested.
On this record, we conclude that the State presented
sufficient evidence that TP and DHI incurred reasonable and
verified losses, suffered as a result of Foumai's conduct, in the
amounts determined by the Circuit Court. In particular, we
conclude that the State presented sufficient evidence tying
Exhibits 1-5 in Case 1, and Exhibits 1-4 in Case 2, to Foumai's
burglary in the second degree. Accordingly, the Circuit Court
did not err or abuse its discretion in ordering Foumai to pay
restitution to TP and DHI in the specified amounts.
III. Conclusion
For these reasons, we affirm the Amended Judgment of
Conviction and Sentence in Criminal No. 1CPC-XX-XXXXXXX, and the
Amended Judgment of Conviction and Sentence in Criminal No. 1CPC-
XX-XXXXXXX, both entered on July 1, 2019, in the Circuit Court of
the First Circuit.
DATED: Honolulu, Hawai#i, October 29, 2020.
On the briefs:
/s/ Lisa M. Ginoza
Harrison L. Kiehm Chief Judge
for Defendant-Appellant.
Sonja P. McCullen, /s/ Katherine G. Leonard
Deputy Prosecuting Attorney, Associate Judge
City & County of Honolulu,
for Plaintiff-Appellee.
/s/ Clyde J. Wadsworth
Associate Judge
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