State v. Sardinha

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
15-JAN-2021
07:53 AM
Dkt. 42 MO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I

STATE OF HAWAI#I, Plaintiff-Appellant, v.
BRONSON SARDINHA, Defendant-Appellant

APPEAL FROM THE CIRCUIT COURT OF FIRST CIRCUIT
(CRIMINAL NO. 16-1-0359)

MEMORANDUM OPINION
(By: Ginoza, Chief Judge, Wadsworth and Nakasone, JJ)

Plaintiff-Appellant State of Hawai#i (State) appeals
from the Circuit Court of the First Circuit's (circuit court)1
October 14, 2016 "Order Granting Defendant Bronson Sardinha's
Motion to Dismiss with Prejudice Pursuant to HRS § 701-111 and §
701-109"2 (Order Granting Motion to Dismiss).
On appeal, the State argues that the circuit court
erroneously applied the compulsory joinder statute, Hawai#i
Revised Statutes (HRS) § 701-109(2) (2014), and abused its
discretion in dismissing the charge of Assault Against a Law
Enforcement Officer (Assault Against LEO) against Defendant-
Appellee Bronson Sardinha (Sardinha), as arising from the "same
episode" as a prior case involving driving charges.
For the reasons discussed below, we vacate the circuit
court's Order Granting Motion to Dismiss and remand for further
proceedings.

1
The Honorable Glenn J. Kim presided.
2
Hawai#i Revised Statutes (HRS) §§ 701-109 (2014) and 701-111
(2014) are set forth in relevant part infra.
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I. BACKGROUND
On November 28, 2015, at about 10:50 p.m., a "Motor
Vehicle Fled Scene" (fled scene)3 type case occurred at
Farrington Highway and Waipio Point Access Road, involving a
vehicle with license plate GRA 505.4 About one hour later, at
11:51 p.m., Honolulu Police Department (HPD) police officers Jon
Nguyen (Officer Nguyen) and Shayne Sesoko (Officer Sesoko) were
dispatched to a parking lot fronting "Nancy's Kitchen" in the
Waipio Shopping Center to respond to an argument between a female
and a male; the male was later identified as Sardinha. When the
police officers arrived, the female indicated that the argument
was over and that she would call her mother to pick her up,
whereupon she went back inside Nancy's Kitchen to wait. The
management of Nancy's Kitchen did not allow Sardinha back inside,
as he was "very uncooperative." Officer Sesoko "could smell a
very strong odor of alcoholic beverage" on Sardinha's breath
while speaking with him about the argument. Because Sardinha did
not leave the area, Officers Nguyen and Sesoko waited outside of
Nancy's Kitchen until the female's mother arrived. Sardinha was
swearing and yelling at the police officers.
As Officers Nguyen and Sesoko waited, Officer Sesoko
observed Sardinha walk over to a white SUV that had front-end
damage, enter the vehicle, and sit in the driver's seat. Officer
Sesoko noticed the SUV bore license plate GRA 505, and this plate
number matched the number of the vehicle involved in the fled

3
"Motor Vehicle Fled Scene" refers to the offense of Leaving Scene
of Accident Involving Vehicle Damage, under HRS § 291C-13 (Supp. 2008), which
requires:

The driver of any vehicle involved in an accident resulting
only in damage to a vehicle or other property that is driven
or attended by any person shall immediately stop such
vehicle at the scene of the accident or as close thereto as
possible, but shall forthwith return to, and in every event
shall remain at, the scene of the accident until the driver
has fulfilled the requirements of section 291-14 . . . .
HRS § 291C-14 (Supp. 2008) concerns the duty of a driver involved in an
accident to give information and render aid if necessary.

4
These facts are derived from the police reports that were
stipulated into evidence during the hearing on Sardinha's motion to dismiss.

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scene case from earlier that evening. When Sardinha stepped out
of the white SUV, Officer Sesoko informed him that the vehicle he
was sitting in was involved in a motor vehicle accident in which
the vehicle had fled the scene. Sardinha became "even more
irritated" and denied owning the car and being inside the car.
Officer Nguyen asked Sardinha for his driver's license,
registration, and proof of insurance, to which Sardinha
responded, "I got nothing." Sardinha continued to attempt to
provoke Officer Nguyen to fight, uttering profanities and racial
slurs.
Police officer Crystal Roe (Officer Roe) arrived at
about 12:24 a.m. and recognized Sardinha from an unrelated
incident that had previously occurred on October 31, 2015.
Sardinha was being "aggressive" and "uncooperative" by not
providing identification. When Sardinha recognized Officer Roe
from the October 31, 2015 incident, he became cooperative and
provided Officer Roe his identification.
The police officers conducted a warrant check on
Sardinha, revealing a contempt warrant. Sardinha was informed of
the warrant, handcuffed, and escorted to a police vehicle pending
confirmation of the warrant and "due to his increasingly
aggressive behavior."
Sardinha was instructed numerous times to get into the
back of the police vehicle, but he refused. Officers Roe,
Nguyen, and Sesoko continued to attempt to get Sardinha into the
police vehicle using "light touch and verbal commands[,]" but
Sardinha refused and continued to evade entering the police
vehicle. Sardinha suddenly stepped forward towards Officer
Sesoko and head-butted Officer Sesoko in the right side of his
face. Officer Sesoko had a small lump and bruising under his
right eye and felt extreme pain at the time of the head-butt.
Officers Roe and Sesoko were able to place Sardinha in
the police vehicle after Officer Sesoko used his O.C. spray.
Sardinha was then informed that he was no longer being detained

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but was now under arrest for assaulting a law enforcement
officer.
Officer Roe's November 29, 2015 police report contained
the following references at the end:
RELATED REPORTS
15-476932 Contempt
15-476941 Resisting Arrest
15-476847 MVC Fled Scene

RELATED CITATIONS
1DTC-15-071381 issued by Officer T. Duponte for the
following violations: HRS 286-102 DWOL, HRS 286-132 Revoked,
HRS 291-12 Inattention, HRS 291C-13 Leaving the Scene of an
Accident, HRS 291E-62(a) Revoked OVUII, and HRS 431:10C-104
No Insurance Policy
DISPOSITION
Arrested and booked

On December 11, 2015, a Deputy Prosecuting Attorney
reviewed the investigative file and accepted the Assault Against
LEO charge. The file specifically referenced the fled scene
offense.
On December 28, 2015, the State filed a complaint in
the District Court of the First Circuit (district court) charging
Sardinha with Inattention to Driving (HRS § 291-12 (Supp. 2008);5
Accidents Involving Damage to Vehicle or Property (HRS §
291C-13); Operating a Vehicle After License and Privilege Have
Been Suspended or Revoked for Operating a Vehicle Under the
Influence of an Intoxicant (HRS §§ 291E-62(a)(1) and/or (a)(2),
(b)(1)); and Driving Without Motor Vehicle Insurance (HRS §§ 431:
10C-104(a), 431: 10C-117(a))(collectively Driving Charges).6

5
Inattention to Driving. Whoever operates any
vehicle without due care or in a manner as to cause a
collision with, or injury or damage to, as the case
may be, any person, vehicle or other property shall be
fined not more than $500 or imprisoned not more than
thirty days, or both, and may be subject to a surcharge
of up to $100, which shall be deposited into the
trauma systems special fund.

HRS § 291-12 (Supp. 2008).
6
We take judicial notice of the district court complaint filed in
1DTC-15-071381. See In re Estate of Kam, 110 Hawai#i 8, 12 n.5, 129 P.3d 511,
515 n.5 (2006)(appellate courts may take judicial notice of records in a
(continued...)

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On March 8, 2016, Sardinha pled no contest to the
Inattention to Driving charge (Driving Charge), and all of the
remaining Driving Charges were dismissed with prejudice.
Also on March 8, 2016, the State filed a Grand Jury
indictment in Circuit Court, charging Sardinha with Assault
Against LEO in violation of HRS § 707-712.5(1)(a)7 for the
alleged assault of Officer Sesoko. Sardinha had entered his plea
to the Driving Charge in district court purportedly unaware that
the State was seeking a conviction for the Assault Against LEO
offense in circuit court.
On August 29, 2016, Sardinha filed a Motion for
Dismissal with Prejudice Pursuant to HRS § 701-111 and § 709-109
(Motion to Dismiss),8 asserting that HRS § 701-109(2) bars
prosecution of the Assault Against LEO charge because Sardinha
had been previously convicted of the Driving Charge, and both
offenses arose from the same episode and were known to the State.
In opposition, the State argued that the Assault Against LEO
charge and the prior Driving Charge did not arise out of the same
criminal episode.
At the hearing on the Motion to Dismiss on September
28, 2016, the parties stipulated the police reports of Officers
Nguyen, Roe, and Sesoko into evidence, and stipulated to defense
counsel's representation that the distance between the locations
where the two offenses occurred was 2.1 miles.

6
(...continued)
related case not appearing in the record on appeal).
7
Assault against a law enforcement officer in the
first degree. (1) A person commits the offense of
assault against a law enforcement officer in the first
degree if the person:
(a) Intentionally or knowingly causes bodily
injury to a law enforcement officer who is
engaged in the performance of duty[.]
HRS § 707-712.5 (2014).
8
These statutes, HRS § 701-111 and HRS § 709-109, are set forth in
relevant part in the discussion section.

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The circuit court agreed with Sardinha's argument and
granted dismissal, because it could not "see how a complete
account of the assault-against-police-officer charge could be
given without referring to the details of the earlier accident."
On October 14, 2016, the circuit court entered the instant order
granting the Motion to Dismiss. This timely appeal followed.
On appeal, the State argues that the circuit court
abused its discretion in granting the Motion to Dismiss because
the Assault Against LEO charge and the Driving Charge did not
arise out of the same episode.

II. STANDARDS OF REVIEW
Motion to Dismiss Indictment
A trial court's ruling on a motion to dismiss an
indictment is reviewed for an abuse of discretion. State v.
Akau, 118 Hawai#i 44, 51, 185 P.3d 229, 236 (2008) (citations
omitted). A trial court abuses its discretion when it "clearly
exceeds the bounds of reason or disregards rules or principles of
law or practice to the substantial detriment of a party
litigant." State v. Wong, 97 Hawai#i 512, 517, 40 P.3d 914, 919
(2002).

Statutory Interpretation
"Statutory interpretation is a question of law
reviewable de novo." State v. Castillon, 144 Hawai#i 406, 411,
443 P.3d 98, 103 (2019) (quoting Panado v. Bd. of Trs., Emps.'
Ret. Sys., 134 Hawai#i 1, 10, 332 P.3d 144, 153 (2014)).

III. DISCUSSION
HRS § 701-109(2), the "compulsory joinder" statute,
prohibits the State from subjecting a defendant to separate
trials for offenses arising from the "same conduct" or "same
episode," if the offenses are known to the prosecutor at the
commencement of the first trial and are within the jurisdiction
of a single court. This statute provides:

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[A] defendant shall not be subject to separate trials for
multiple offenses based on the same conduct or arising from
the same episode, if such offenses are known to the
appropriate prosecuting officer at the time of the
commencement of the first trial and are within the
jurisdiction of a single court.

HRS § 701-109(2)(2014). Under HRS § 701-111(1)(b)(2014),9 the
prosecution is prohibited from prosecuting a defendant for an
offense which should have been joined in a prior trial under HRS
§ 701-109(2).
In this case, the parties do not dispute that both the
Driving Charge and the Assault Against LEO charge were known to
the prosecution when the earlier Driving Charge was filed. There
is no dispute that both criminal offenses were within the
jurisdiction of the circuit court. See HRS § 603-21.5 (2016)
("The several circuit courts shall have jurisdiction, except as
otherwise expressly provided by statute, of . . . criminal
offenses cognizable under the laws of the State, committed within
their respective circuits[.]"). The only disputed issue is
whether the offenses were part of the "same episode" under HRS §
701-109(2).
In State v. Carroll, 63 Haw. 345, 351, 627 P.2d 776,
780 (1981), the Hawai#i Supreme Court addressed the "same
episode" language in HRS § 701-109(2) and adopted the following
test:

9
HRS § 701–111(1)(b) provides:
Although a prosecution is for a violation of a different
statutory provision or is based on different facts, it is
barred by a former prosecution under any of the following
circumstances:
(1) The former 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 for:

....
(b) Any offense for which the defendant should
have been tried on the first prosecution under section 701-
109 unless the court ordered a separate trial of the
offense[.]

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In view of the dual considerations of fairness to the
defendant and society's interest in efficient law
enforcement, we hold that the test for determining the
singleness of a criminal episode should be based on whether
the alleged conduct was so closely related in time, place
and circumstances that a complete account of one charge
cannot be related without referring to details of the other
charge.

(Emphasis added). This test was adopted from the Oregon Supreme
Court case of State v. Boyd, 533 P.2d 795, 798 (Or. 1975), which
held that multiple charges arise from the same episode "'if they
are so closely linked in time, place and circumstance that a
complete account of one charge cannot be related without relating
details of the other charge.'" Carroll, 63 Haw. at 349, 627 P.2d
at 779. The Hawai#i Supreme Court explained the "single episode"
rationale and policy considerations as follows:

Where the offenses occur at the same time and place
and under the same circumstances, it is likely that
the facts and issues involved in the charges will be
similar. The witnesses to be used and the evidence to
be offered will probably overlap to the extent that
joinder of the charges would be justified. Compulsory
joinder of offenses which share a proximity in time,
place and circumstances would not only protect the
defendant from successive prosecutions based on the
same conduct or episode, but it would also save the
defendant and the State time and money required in the
presentation of repetitive evidence.

Id. at 351, 627 P.2d at 780 (emphasis added).
In Carroll, after the defendant was arrested for
starting a fire, during a routine search, a police officer failed
to recognize a canister of Mace discovered in the defendant's
possession. 63 Haw. at 346, 627 P.2d at 777. Forty minutes
later, during a custodial search at the police station, a second
officer identified the Mace, and the defendant was charged for
possession of an obnoxious substance, a misdemeanor. Id. at 346-
47, 627 P.2d at 777-78. The defendant was first tried and
acquitted of the misdemeanor possession offense for the Mace, and
subsequently indicted for felony attempted criminal property
damage. Id. at 347, 627 P.2d at 778. The circuit court granted
the defense motion to dismiss the felony indictment for attempted
criminal property damage, on grounds that the two offenses were

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part of a single episode subject to compulsory joinder under HRS
§ 701-109(2). The Hawai#i Supreme Court reversed the dismissal
applying the new single episode test, holding that the subsequent
attempted criminal property damage prosecution was not barred by
the prior misdemeanor possession prosecution because the
"offenses occurred at different times and places and under
different circumstances[,]" and "they were discovered under
different circumstances which resulted in arrests by different
police officers." Id. at 352, 627 P.2d at 781.
Since Carroll, the Hawai#i Supreme Court has applied
this single episode test in State v. Servantes, 72 Haw. 35, 804
P.2d 1347 (1991) (holding that prosecution of felony drug charges
was barred by earlier prosecution of defendant for misdemeanor
marijuana possession charge which arose from the same episode;
the misdemeanor marijuana charge was based on police observation
of marijuana next to defendant's foot as he sat in a vehicle,
which established probable cause for a search warrant to search
the vehicle for additional drugs whereupon cocaine and
paraphernalia were seized, leading to defendant being charged
with the felony drug charges in the current prosecution); State
v. Keliiheleua, 105 Hawai#i 174, 95 P.3d 605 (2004)(holding that
prosecution of defendant for negligent injury was not barred by
earlier prosecution of defendant for insurance fraud which did
not arise from the same episode, where defendant, who was
uninsured at time of car accident where negligent injury first
degree offense occurred, obtained insurance coverage later that
same day and made fraudulent insurance claim); and State v. Akau,
118 Hawai#i 44, 185 P.3d 229 (2008)(holding that prosecution of
defendant for three counts of second degree promotion of
dangerous drugs for three undercover drug buys, was barred by
earlier prosecution of defendant for felony drug and
paraphernalia possession; the three drug buys at issue in the
current prosecution provided probable cause for search warrant of
defendant leading to the discovery of methamphetamine and

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paraphernalia, which were the basis of the felony drug charges in
the prior prosecution).

A. The Driving Charge and the Assault Against
LEO charge were not closely related in time,
place and circumstances for compulsory
joinder under the single episode test.

The circuit court's analysis and ruling turned on its
conclusion that because the Assault Against LEO charge was
prosecuted second, after the Driving Charge, a complete account
of the Assault Against LEO charge could not be presented without
referring to the details of the Driving Charge.12 The circuit

12
The circuit court ruled as follows:

[THE COURT:] And despite what the State sets forth in
its memorandum in opposition, I think it's really as basic
as this, and essentially I agree with what [defense counsel]
has just set forward. You've always got two crimes at
issue. That's axiomatic. You got two crimes. And one was
committed before the other one, allegedly. Again, that's
axiomatic. Or we wouldn't be here.

And I think it just so happened that so far in the
cases what's been at issue has been the first case. That
was the case in Carroll. You had CPD, for the guy allegedly
setting fire at an elementary school. And then the
subsequent, the second crime, is a simple possession of Mace
. . . .
And he was convicted first of the second one. And
then he was going to go to trial on the first one. And
there was a motion to dismiss. And it was denied. But it
was denied, because, in my view – although this wasn't
really part of the analysis explicitly - it's because it was
the first one.
And because it was the first one, it could in fact –-
there could be in fact a complete account given of that
charge without referring to the details of the second
charge; because quite frankly, fundamentally, there was
nothing of relevance to the first charge in the second
charge. And, in fact, it would be the defense in that case
who would want to keep it out. That by the way, you know,
he also had this illegal substance in his pocket when he
allegedly set the fire.
So, again, I think it was implicit, though it was not
made explicit in the analysis, because it kind of didn't
have to be. It was so implicit. That it's because it was
the first crime that was at issue.

And as [defense counsel] has pointed out, it's the
same thing in Keliiheleua. What's at issue in Keliiheleua
(continued...)

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court concluded that the single episode test applied because a
complete account of one charge could not be related without
referring to details of the other. Respectfully, this was not a
proper application of the Carroll single episode test. This
application of the single episode test erroneously focused on the
language, "referring to details of the other charge," without
properly considering the full test, i.e., whether the alleged
conduct in both offenses, was "so closely related in time, place
and circumstances that a complete account of one charge cannot be
related without referring to details of the other charge."
Carroll, 63 Haw. at 351, 627 P.2d at 780 (emphasis added). If
the record does not establish that the "alleged conduct" of both
charges "was so closely related in time, place and
circumstances[,]" it does not matter whether references to the
details of the other charge occur, because the "closely related"
criteria of the single episode test would not have been met. A
single criminal episode refers to conduct that is "so closely
related in time, place, and circumstances that a complete account
of one charge cannot be related without referring to details of
the other charge," id. (emphasis added), not because a complete
account of one charge cannot be related without reference to the
details of the other.

12
(...continued)
is the first crime that's set to go to trial. The second
crime, the fraud crime, was already taken care of.
And just as Justice Acoba says, you know, the
negligent injury charge can be tried without mention of the
fraud case. Because again, the details of the fraud case
are completely irrelevant to the negligent-injury charge.
Although, as [defense counsel] persuasively argues, it's not
the same way when it's flipped. Again, it wasn't explicitly
part of the Keliiheleua analysis. But that's because it
didn't have to be, because of the factual circumstances of
that case. But this case is completely different, in the
sense that what's at issue is the second charge.
And the long and short of it is I'm completely
persuaded by the defense argument in this case. I think
it's correct. I don't see how a complete account of the
assault-against-police-officer charge could be given without
referring to the details of the earlier accident.

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Assuming arguendo it is necessary to admit details of
the Driving Charge at a hearing or trial for the Assault Against
LEO charge, this does not mean that the offenses must be joined.
See State v. Stolz, 806 P.2d 715, 717 (Or. App. 1991) (applying
Boyd, 533 P.2d 795, and holding that where defendant was arrested
for restraining order violation and subsequently incurred a
resisting arrest charge during the same incident, "[e]ven if some
details of defendant’s violation of the restraining order are
admissible at trial on the resisting arrest charge, that does not
mean that the charges must be joined.") (italics in
original)(citation omitted); State v. Crumal, 659 P.2d 977, 980
(Or. App. 1983) (holding that where defendant was in custody for
burglary and assault charges, taken to a hospital by the police
for treatment of his injuries, and subsequently incurred a
disorderly conduct charge for disruptive behavior at the
hospital, "[t]he fact that certain details of the events" from
the home where the burglary and assault charges occurred "were
admissible at trial on the disorderly conduct charges does not
mean that joinder is required.") (italics in original) (citing
Boyd, 533 P.2d 795. The application of the Carroll single
episode test is not dependent on whether the "other charge" may
be mentioned during the course of a trial or hearing, but is
contingent upon whether the conduct in both charges is "so
closely related" in time, place, and circumstances, that a
"complete account of one charge cannot be related without
referring to details of the other charge." Carroll,63 Haw. at
351, 627 P.2d at 780.
In Keliiheleua, the Supreme Court applied the Carroll
single episode test and found no compulsory joinder because the
criminal charges in question were not closely related in time,
place and circumstances. 105 Hawai#i at 181, 95 P.3d at 612.
Regarding the "time" and "place" factors, the Keliiheleua Court
reasoned that although the accident and the fraudulent insurance
claim occurred on the same day, they did not occur at the same
time, and that the places where the defendant committed the

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offenses were different. Id. at 181-82, 95 P.3d at 612-13.
Regarding the "circumstances" factor, the Court concluded as
follows:

Third, the circumstances of the cases were not
similar. "Where the offenses occur at the same time and
place and under the same circumstances, it is likely that
the facts and issues involved in the charges will be
similar." Carroll, 63 Haw. at 350, 627 P.2d at 780.
However, in this case, the facts and issues involved in the
charges(namely, the statutory requirements of the alleged
offenses) are dissimilar.

Id. at 182, 95 P.3d at 613 (emphases added) (footnote omitted).
In a footnote to this passage, the Keliiheleua Court also
explained, "[e]xamples of crimes arising from the same criminal
episode include the simultaneous robbery of seven individuals,
the killing of several people with successive shots from a gun,
the successive burning of three pieces of property, or such
contemporaneous and related crimes as burglary and larceny, or
kidnaping and robbery." Id. at 182 n.9, 95 P.3d at 613 n. 9
(internal citation and quotation marks omitted). In contrast,
this case does not involve simultaneous or successive identical
offenses. The Driving Charge and the Assault Against LEO charge
are also not "contemporaneous and related" like the burglary-
larceny, or kidnapping-robbery examples cited by the Keliiheleua
Court. Id.
Based on the record in this case, we cannot conclude
that the alleged offenses occurred at the same time or place, or
that the alleged conduct was closely related in time and place.
The record does not provide any facts, issues or circumstances
related to the Driving Charge, other than the time and location
of the accident, and the license plate of the suspect vehicle
involved. The offenses occurred about an hour apart, with a 2.1
mile distance between the two locations. On this record, we also
cannot conclude that the conduct underlying the charges occurred
under the same or similar circumstances, or that there was a
close relationship between the circumstances of both offenses.
The officers first came into contact with Sardinha while

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responding to an argument call at Nancy's Kitchen, not because
the vehicle in the fled scene case was there. There is nothing
in the record to indicate that the charges both entailed the same
witnesses, or that any overlap in the evidence would occur,
militating in favor of joinder. Thus, on this record, the
alleged offenses did not occur "under the same circumstances,"
such that "the facts and issues involved in the charges will be
similar[,]" necessitating joinder. Id. at 182, 95 P.3d at 613
(quoting Carroll, 63 Haw. at 350, 627 P.2d at 780).
In concluding that the offenses therein did not share
similar circumstances, the Keliiheleua Court also pointed to the
dissimilarity of "the statutory requirements of the alleged
offenses[.]" Id. Here, the statutory requirements of the
Inattention to Driving charge,13 and the Assault Against LEO
charge,14 are dissimilar. There is no overlap in the elements
that the State must prove for the Driving Charge (i.e. that
Sardinha operated a vehicle without due care or in a manner
causing a collision) or the Assault Against LEO charge (i.e. that
Sardinha intentionally or knowingly caused bodily injury to
Officer Sesoko while the officer was engaged in the performance
of duty). Thus, the circumstances of the alleged offenses are
not so closely related, such that joinder would be required.
Finally, the Carroll Court explained that requiring
"[c]ompulsory joinder of offenses which share a proximity in
time, place and circumstances" satisfies the dual policy
considerations of "protect[ing] the defendant from successive
prosecutions based on the same conduct or episode," and also
"sav[ing] the defendant and the State time and money required in
the presentation of repetitive evidence." Carroll, 63 Haw. at
351, 627 P.2d at 780. Joinder of the Driving Charge and Assault
Against LEO charge here would not save Sardinha and the State
time and money "in the presentation of repetitive evidence,"

13
See HRS § 291-12 supra note 5.
14
See HRS § 707-712.5 supra note 7.

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because the record does not indicate that any evidence would be
"repetitive" in the context of both cases. Id.
For these reasons, the Driving Charge and the Assault
Against LEO charge were not so closely related in time, place and
circumstances that a complete account of one charge cannot be
related without referring to the details of the other charge.
Under the single episode test, joinder was not required.

B. Under the Akau probable cause analysis, the
Driving Charge and the Assault Against LEO
charge were not closely related in
circumstances.

In Akau, the most recent single episode case, the
Hawai#i Supreme Court adopted a probable cause analysis for
examining the "circumstances" factor of the same episode test, as
follows:

we believe that the relevant case law in this jurisdiction
establishes that, when examining the "circumstances" of
offenses alleged to be part of the "same episode," this
court has focused primarily on whether the facts and
circumstances of the first discovered offense provided
sufficient probable cause to suspect that the defendant had
committed or would commit the second discovered criminal
offense.

Akau, 118 Hawai#i at 57, 185 P.3d at 242.
In this case, both sides dispute which charge was the
first discovered offense. The State contends that the Driving
Charge was the first discovered offense, and Sardinha counters
that the Assault Against LEO charge was the first discovered
offense because Sardinha "was not identified as the driver in the
'Fled Scene' case until after he was arrested in the assault
case[.]" Applying the probable cause analysis, we conclude that
the alleged offenses are not closely related in circumstances,
regardless of which was discovered first.
"[A] police officer has probable cause to make an
arrest when the facts and circumstances within the officer's
knowledge and of which the officer has reasonably trustworthy
information are sufficient in themselves to warrant a person of
reasonable caution in the belief that a crime has been or is

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being committed." HRS § 803-5(b) (2014). "Probable cause exists
when the facts and circumstances within one's knowledge and of
which one has reasonable trustworthy information are sufficient
in themselves to warrant a person of reasonable caution to
believe that an offense has been committed. This requires more
than a mere suspicion but less than a certainty." State v.
Maganis, 109 Hawai#i 84, 86, 123 P.3d 679, 681 (2005) (citation,
italics, and quotation marks omitted).
In this case, the Driving Charge had occurred an hour
prior to the argument call at Nancy's Kitchen. Because the
driver had fled the scene of the accident, the identity of the
driver was unknown, and the location of the vehicle was also
outstanding. The police had information regarding only the date,
time, and location of the accident, and the vehicle's license
plate number. Based on this record, the facts and circumstances
of the Driving Charge did not provide sufficient probable cause
to suspect that Sardinha would subsequently head-butt Officer
Sesoko, leading to the Assault Against LEO charge.
Even if we were to accept Sardinha's argument on appeal
that the first discovered offense was the Assault Against LEO
charge, the police still did not have probable cause on this
record, to suspect that Sardinha had committed the Driving
Charge. In particular, the record does not reflect how or when
Sardinha was identified as the driver in the Driving Charge.
The point in time at which Sardinha was identified as
the suspect driver in the Driving Charge is important, because
prior to that identification, the facts and circumstances within
the knowledge of the arresting officers for the Assault
Against LEO charge, did not establish probable cause to believe
that an offense other than Assault Against LEO had been
committed. See Carroll, 63 Haw. at 352, 627 P.2d at 781 ("The
point in time at which the Mace was identified is important
because prior to the identification, the facts and circumstances
within the first arresting officer's knowledge did not afford
probable cause to believe that an offense other than Attempted

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Criminal Property Damages in the Second Degree had been
committed."). The mere fact that Sardinha was in possession of
the suspect vehicle did not establish probable cause that
Sardinha had committed the Driving Charge, where Sardinha could
have been a passenger rather than the driver, or Sardinha may not
have been present at the time of the accident. There is no
evidence in the record establishing how or when Sardinha was
identified as the driver in the Driving Charge, and thus, on this
record, the police did not have probable cause to suspect that
Sardinha had committed the Driving Charge, at the point of arrest
for the Assault Against LEO charge.
For these reasons, applying the probable cause analysis
in Akau, the circumstances of the Assault Against LEO charge and
the Driving Charge, were not so closely related under the single
episode test, that joinder was required.

IV. CONCLUSION
Based on the foregoing, the circuit court erred in
granting the Motion to Dismiss because compulsory joinder under
HRS § 701-109(2) did not apply. The circuit court's October 14,
2016 Order Granting Sardinha's Motion to Dismiss with Prejudice
Pursuant to HRS §§ 701-111 and 701-109 is vacated, and we remand
for further proceedings.
DATED: Honolulu, Hawai#i, January 15, 2021.

On the briefs: /s/ Lisa M. Ginoza
Chief Judge
Brandon H. Ito,
Deputy Prosecuting Attorney /s/ Clyde J. Wadsworth
City and County of Honolulu Associate Judge
for Plaintiff-Appellant
/s/ Karen T. Nakasone
Thomas M. Otake, Associate Judge
for Defendant-Appellee.

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