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Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
14-SEP-2022
07:59 AM
Dkt. 70 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
STATE OF HAWAI#I, Plaintiff-Appellee, v.
TROY D. BORGE, JR., Defendant-Appellant.
APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT
(CASE NO. 2CPC-XX-XXXXXXX)
SUMMARY DISPOSITION ORDER
(By: Leonard, Presiding Judge, Nakasone and McCullen, JJ.)
Defendant-Appellant Troy D. Borge, Jr. (Borge) appeals
from the Circuit Court of the Second Circuit's1 June 7, 2021
Judgment; Conviction and Sentence (Judgment) convicting him of
Assault in the First Degree, in violation of Hawaii Revised
Statutes (HRS) § 707-710 (2014).2
On appeal, Borge argues that the circuit court
"reversibly erred in: 1) denying his Motion to Dismiss
Indictment; and 2) ordering restitution to be paid to the
1
The Honorable Kelsey T. Kawano presided.
2
HRS § 707-710 provides as follows:
(1) A person commits the offense of assault in the
first degree if the person intentionally or knowingly causes
serious bodily injury to another person.
(2) Assault in the first degree is a class B felony.
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complainant [(CW)] for his medical care paid by his insurance
provider."
Upon careful review of the record and the briefs
submitted by the parties, and having given due consideration to
the arguments advanced and the issues raised, we resolve this
appeal as follows, and affirm.
(1) Borge's first point of error alleges the circuit
court erred when it denied his July 17, 2020 Motion to Dismiss
Indictment (Motion to Dismiss). Borge argues several reasons why
the indictment was invalid and should have been dismissed with
prejudice. "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) (citation and
internal quotation marks omitted). As discussed below, the
circuit court did not abuse its discretion when it denied his
Motion to Dismiss.
(a) According to Borge, the indictment in the
underlying case (2CPC-XX-XXXXXXX) should have been dismissed with
prejudice because, pursuant to HRS § 701-110(2) (2014), the
district court's no probable cause determination in State v.
Borge 2DCW-XX-XXXXXXX (2DCW-XX-XXXXXXX), was a final order that
"effectively terminated the prosecution for [Attempted Murder in
the Second Degree]."
HRS § 701-110(2) provides,
[w]hen a prosecution is for an offense under the same
statutory provision and is based on the same facts as a
former prosecution, it is barred by the former prosecution
[if the] former prosecution was terminated, after the
information had been filed or the indictment found, by a
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final order or judgment for the defendant, which has not
been set aside, reversed, or vacated and which necessarily
required a determination inconsistent with a fact or a legal
proposition that must be established for conviction of the
offense.
(Formatting altered.)
Here, the district court's no probable cause
determination in 2DCW-XX-XXXXXXX was not a final order because a
final order is "an order ending the proceeding, leaving nothing
further to be accomplished." Casumpang v. ILWU, Local 142, 91
Hawai#i 425, 426, 984 P.2d 1251, 1252 (1999). In 2DCW-19-
0002338, after the preliminary hearing, the district court found
no probable cause for Attempted Murder in the Second Degree.
However, it committed the case to the circuit court for further
proceedings on the probable cause determination for Assault in
the First Degree. See Moana v. Wong, 141 Hawai#i 100, 106-07,
405 P.3d 536, 542–43 (2017) (explaining that preliminary hearings
are often viewed as a screening device that determines whether
the facts alleged justify detaining a defendant as he awaits
trial).
The committal order made no judgment on the merits of
the case, did not bear on Borge's guilt or innocence, and did not
end the litigation by fully deciding all rights and liabilities
of all parties, leaving nothing further to be adjudicated. See
Casumpang, 91 Hawai#i at 426, 984 P.2d at 1252 ("When a written
judgment, order, or decree ends the litigation by fully deciding
all rights and liabilities of all parties, leaving nothing
further to be adjudicated, the judgment, order, or decree is
final and appealable."); People v. Harkness, 339 N.E.2d 545, 547
(Ill. App. Ct. 1975) (explaining that because a "finding of no
probable cause is neither a conviction nor an acquittal[,]" it is
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not a final judgment or order) (citation omitted). Accordingly,
HRS § 701-110(2) is not applicable and the district court's no
probable cause determination in 2DCW-XX-XXXXXXX was not a final
order that precluded the indictment in this underlying case.
(b) Borge also argues that under the doctrine of
collateral estoppel, the district court's no probable cause
determination in 2DCW-XX-XXXXXXX barred the Plaintiff-Appellee
State of Hawai#i (State) from seeking an indictment for Attempted
Murder in the Second Degree in this underlying case. The
doctrine of "collateral estoppel means that, 'when an issue of
ultimate fact has once been determined by a valid and final
judgment, that issue cannot again be litigated between the same
parties in any future lawsuit.'" State v. Mundon, 129 Hawai#i 1,
14, 292 P.3d 205, 218 (2012) (citation omitted).
In this case, and as discussed above, the district
court's determination that there was no probable cause in 2DCW-
XX-XXXXXXX was not a final judgment. Therefore, the State was
not collaterally estopped from seeking the indictment against
Borge in this underlying case. See State v. Deedy, 141 Hawai#i
208, 221, 407 P.3d 164, 177 (2017); see also Morse v. United
States, 267 U.S. 80, 85 (1925) ("[A] judgment in a preliminary
examination discharging an accused person for want of probable
cause is not conclusive upon the question of his guilt or
innocence and constitutes no bar to a subsequent trial in the
court to which the indictment is returned.") (citation omitted).
(c) Borge next argues that the indictment "should
have been dismissed because Borge's due process right to a fair
and impartial grand jury was violated for a second time by three
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instances of prosecutorial misconduct before the grand jury."
The Hawai#i Supreme Court has held that prosecutorial misconduct
before the grand jury must be "extreme and clearly infringe[ ]
upon the jury's decision-making function" to warrant dismissal of
the indictment. State v. Pulawa, 62 Haw. 209, 218, 614 P.2d 373,
378 (1980).
Borge alleges the first instance of prosecutorial
misconduct occurred when the prosecutor "elicited evidence of
Borge's invocation of his right to remain silent by asking
[Detective Dennis Clifton (Detective Clifton)] whether he had
taken 'any statement from' [Borge] the day after he was arrested,
to which [Detective] Clifton answered, 'We attempted to question
him, but he requested to speak to an attorney.'"
A criminal defendant has the right to remain silent,
and no person shall be "compelled in any criminal case to be a
witness against oneself." Haw. Const. art. I, § 10. A
"prosecutor may not imply guilt from a defendant's exercise of
the right to remain silent, for doing so would dilute the right,
undermine the values that the right protects, and penalize the
defendant for exercising a constitutional right." State v.
Tsujimura, 140 Hawai#i 299, 314, 400 P.3d 500, 515 (2017).
Contrary to Borge's argument, the June 26, 2020 grand
jury transcript shows the prosecutor's line of inquiry as
detailing the actions Detective Clifton took the night of the
incident as part of his investigation. Although the witness
referenced Borge's silence, it was referenced only once before
the prosecutor moved on to a different question. Furthermore,
the prosecutor promptly instructed the grand jury to not
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"consider that information in [its] deliberation." See State v.
Rodrigues, 113 Hawai#i 41, 49-50, 147 P.3d 825, 833-34 (2006)
(holding that the information elicited from the detective was not
an improper comment on the defendant's right to remain silent
because the prosecutor's question was "part of a line of inquiry
designed to establish the detective's custom and practice
regarding accurately transcribing . . . statements").
Because the prosecutor did not comment on Borge's
silence, did not use his silence to imply his guilt, and
immediately gave curative instructions to the grand jury
regarding that information, there was no prosecutorial
misconduct. State v. Williams 146 Hawai#i 62, 72, 456 P.3d 135,
145 (2020) (explaining factors to consider when reviewing
allegations of prosecutorial misconduct).
Borge alleges the second instance of prosecutorial
misconduct occurred when the prosecutor "presented to the grand
jury an excessive amount of hearsay evidence through the
testimony of [Chanelle Kapuni (Kapuni)] and [Detective] Clifton."
The Hawai#i Supreme Court has addressed at length the use of
hearsay at grand jury proceedings. The presently applicable rule
is, "where the hearsay testimony was not used deliberately in the
place of better evidence to improve the case for an indictment,
dismissal of the indictment is not required." State v. Murphy,
59 Haw. 1, 6, 575 P.2d 448, 453 (1978). Additionally, "[i]t is a
basic rule in this jurisdiction that in proceedings determining
the validity of an indictment, the State does not have the burden
of proving that the alleged illegal or improper testimony is not
prejudicial; it is the duty of the defendant to come forward and
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present a case proving prejudice." State v. Miyazaki, 64 Haw.
611, 615, 645 P.2d 1340, 1344 (1982) (citations omitted).
Here, Detective Clifton testified that he received a
subpoena for Dr. Reza Danesh (Dr. Danesh) and, in attempting to
serve the subpoena, spoke with him on two occasions by telephone.
Detective Clifton testified that Dr. Danesh informed him that he
was out of state and would still be out of state on June 26,
2020, the day of the grand jury proceedings. Because of
Dr. Danesh's unavailability, Detective Clifton further testified
that on November 5, 2019, Dr. Danesh described to him the
injuries the CW sustained.
Although Detective Clifton's testimony regarding
Dr. Danesh's findings was hearsay, there was no evidence to
indicate Detective Clifton did not accurately reflect the
conversations he had with Dr. Danesh, or that the hearsay
testimony was prejudicial to Borge. Miyazaki, 64 Haw. at 615,
645 P.2d at 1344; State v. O'Daniel, 62 Haw. 518, 522-23, 616
P.2d 1383, 1387-88 (1980) (explaining despite the hearsay
testimony regarding the doctor's findings, there was nothing
presented to indicate the detective did not accurately reflect
the report and conversation he had with the doctor).
Additionally, the record does not suggest that the State
deliberately used hearsay testimony in the place of better
evidence to improve the case for an indictment. Murphy, 59 Haw.
at 6, 575 P.2d at 453.
With respect to Kapuni's testimony, Borge does not cite
to the record or grand jury transcript regarding where in the
record the alleged error occurred, where the alleged error was
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objected to, or the manner in which the alleged error was brought
to the attention of the court or agency, and does not provide any
statutory authority to support his argument. See Hawai#i Rules
of Appellate Procedure (HRAP) Rule 28(b)(4), (7). Borge also has
not presented any argument of how Kapuni's testimony was
prejudicial, or that it was used deliberately in the place of
better evidence to improve the case for indictment.
Borge argues that the third instance of prosecutorial
misconduct occurred when the prosecutor failed to present to the
grand jury "the clear exculpatory evidence that Borge was
justified in the use of force against [the CW] for the protection
of Kristine Delima [(Delima)] under Haw. Rev. Stat. 703-305"
through the taped interview of Keenan Blair (Blair), who "had
witnessed the entire encounter between Delima, [the CW] and
Borge."
A grand jury proceeding "'is an ex parte investigation
to determine whether a crime has been committed and whether
criminal proceedings should be instituted against any person.'"
O'Daniel, 62 Haw. at 520, 616 P.2d at 1386 (quoting State v.
Bell, 60 Haw. 241, 244, 589 P.2d 517, 519 (1978)). "The
prosecutor has wide discretion in selecting and presenting
evidence before the grand jury." O'Daniel, 62 Haw. at 520, 616
P.2d at 1386 (citations omitted).
"'[W]here evidence of a clearly exculpatory nature is
known to the prosecution, such evidence must be presented to the
grand jury.'" Bell, 60 Haw. at 245, 589 P.2d at 520; Hawai#i
Rules of Penal Procedure Rule 6(f). However, "the prosecution is
not required to present all exculpatory evidence to the grand
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jury" and has "considerable latitude in determining whether to
present evidence of an arguably exculpatory nature to the grand
jury." Bell, 60 Haw. at 246, 589 P.2d at 520, 521. Evidence
that is "clearly" exculpatory is evidence that "clearly would
have negated guilt" or would "undermine the authority of the
grand jury to act at all." State v. Wong, 97 Hawai#i 512, 526,
40 P.3d 914, 928 (2002) (citation and brackets omitted).
Contrary to Borge's argument, Blair's statement that
the CW balled up his hands, looked angry, cussed at Delima, and
looked like he might hit her was not clearly exculpatory
evidence. During Blair's interview, he also stated Borge was not
present when Delima initially confronted the CW, because Borge
had wandered off to look for something. However, Borge came back
with a stick and repeatedly hit the CW's head from behind even
after the CW fell to the ground.
Because Blair's statement would not have conclusively
negated Borge's guilt, or have justified his use of force for the
protection of another, it was therefore not clearly exculpatory.
See State v. Higa, 126 Hawai#i 247, 254-55, 264, 269 P.3d 782,
789-90, 799 (App. 2012), cert. rejected, No. SCWC-30546, 2012 WL
2158732 (Haw. June 12, 2012) (holding that the eye witness's
observation of a limp body, inferring that the child died before
being thrown from the overpass by the defendant, did not
conclusively negate the defendant's guilt and was not clearly
exculpatory).
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Borge contends that "the prosecutor failed to also
inform the grand jury with the clear exculpatory evidence that on
Nov. 14, 2019, a district court judge found no probable cause
that Borge had committed [Attempted Murder in the Second Degree]
at the prior preliminary hearing." As discussed above, a no
probable cause determination is not a final order or indicative
of guilt or innocence. See Casumpang, 91 Hawai#i at 426, 984
P.2d at 1252; Harkness, 339 N.E.2d at 547. Therefore, it was not
clearly exculpatory evidence.
Borge argues that the "cumulative effect of the
prosecutorial misconduct before the grand jury violated Borge's
due process rights." The Hawai#i Supreme Court has recognized
situations in which, "[w]hen no single error or prejudicial
remark constitutes prosecutorial misconduct, 'the cumulative
weight of such errors may create an atmosphere of bias and
prejudice which no remarks by the trial court could eradicate.'"
State v. Williams, 149 Hawai#i 381, 392, 491 P.3d 592, 603 (2021)
(citations omitted). As discussed above, the record in the
present case does not contain any evidence that the alleged
errors, individually or cumulatively, amount to prosecutorial
misconduct.
(d) Borge's final contention concerning his Motion
to Dismiss is that "the Indictment lacks probable cause because a
reasonable and prudent person viewing the evidence presented to
the grand jury would not have a strong suspicion that Borge
attempted to commit the offense of murder in the second
degree[.]"
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"A grand jury indictment must be based on probable
cause." State v. Okumura, 59 Haw. 549, 550, 584 P.2d 117, 119
(1978). "Probable cause is established by '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.'" State v. Ontai, 84 Hawai#i 56, 63, 929 P.2d 69,
76 (1996) (quoting State v. Chung, 75 Haw. 398, 409–10, 862 P.2d
1063, 1070 (1993)). "Because of the accusing nature and function
of grand jury proceedings," the supreme court has held that "the
grand jury's role should not be expanded into a minitrial."
O'Daniel, 62 Haw. at 520, 616 P.2d at 1386. Therefore, "[t]he
evidence to support an indictment need not be sufficient to
support a conviction." State v. Ganal, 81 Hawai#i 358, 367, 917
P.2d 370, 379 (1996).
Here, the record indicates that the grand jury found
the testimonies of Kapuni and Detective Clifton sufficient for an
indictment of Attempted Murder in the Second Degree. State v.
Atwood, 129 Hawai#i 414, 419–20, 301 P.3d 1255, 1260–61 (2013)
("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.'") (citation omitted).
Accordingly, the circuit court's decision to deny Borge's Motion
to Dismiss was appropriate because the grand jury indictment was
based on probable cause.
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(2) In Borge's second point of error, he argues that
the circuit court's "Order of Restitution should not have
included the direct payments for CW's medical care by CW's
insurance provider" because (1) the CW "did not suffer any
financial 'losses' for his medical care" because medical expenses
"were paid by his insurance provider[,]" and (2) even assuming
CW's insurance provider is a victim as defined under HRS § 706-
646(1)(c), it did not request restitution as required by HRS
§ 706-646(2).
Pursuant to HRS § 706-646(1) (2014), a "victim" for
restitution purposes includes the "direct victim of a crime."
HRS § 706-646(1)(a). 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." HRS § 706-646(2) (Supp. 2019). "In
ordering restitution, the court shall not consider the
defendant's financial ability to make restitution in determining
the amount of restitution to order. The court, however, shall
consider the defendant's financial ability to make restitution
for the purpose of establishing the time and manner of payment."
HRS § 706-646(3) (Supp. 2019).
HRS § 706-646 "does not support the theory that a crime
victim has not suffered a loss if (or to the extent that) the
victim has received indemnification from its insurer[.]" State
v. Martin, 146 Hawai#i 232, 459 P.3d 791, No. CAAP-XX-XXXXXXX,
2020 WL 1164506 at *3 (App. Mar. 10, 2020) (SDO) (citing State v.
Tuialii, 121 Hawai#i 135, 139-42, 214 P.3d 1125, 1129-32
(App. 2009), overruled on other grounds by State v. Kealoha, 142
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Hawai#i 46, 414 P.3d 98 (2018)). "[O]rdering a criminal
defendant to repay the full amount of the losses caused by his or
her crime furthers the rehabilitative purpose of HRS § 706-646
and properly compensates the victim for losses suffered as a
result of the defendant's offense." Id.
Here, the record shows that the CW was the direct
victim of Borge's crime and the CW requested restitution through
the "Monetary Restitution Program (MRP) Claim Report" for various
expenses, including two detailed billing statements from Maui
Health Systems. These Maui Health Systems billing statements
showed charges totaling $1,461,444.01, with payments received
from Aloha Care and adjustments by Maui Health Systems.
At the restitution hearing held on May 7, 2021, the
trial court ruled that the hospital bills for the CW met the
criteria for restitution pursuant HRS § 706-646 and Tuialii. At
the sentencing hearing on June 4, 2021, the trial court
"proceed[ed] based on current practice for restitution
determination" and granted restitution in the amount of
$1,461,444.01. The Judgment, among other things, directly
ordered Borge to pay restitution to the CW.
Insofar as the trial court's order strictly complied
with Tuialii, it did not err in ordering Borge to pay restitution
to the CW. See Tuialii, 121 Hawai#i at 142, 214 P.3d at 1132
(explaining that "[t]he interests of justice would not be served
by allowing a thief to retain or otherwise benefit from the
spoils of his crime simply because he picked a victim who was
prudent enough to have obtained insurance" and that "[a] criminal
court need not sort out insurance indemnities, subrogation
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rights, and/or other potential civil implications before ordering
a thief or other criminal to repay his victim under the criminal
restitution statute").
Based on the foregoing, we hold that the circuit court
did not err in denying Borge's Motion to Dismiss and ordering
restitution to the CW, and affirm the circuit court's June 10,
2021 Judgment; Conviction and Sentence.
DATED: Honolulu, Hawai#i, September 14, 2022.
On the briefs: /s/ Katherine G. Leonard
Presiding Judge
Hayden Aluli,
for Defendant-Appellant. /s/ Karen T. Nakasone
Associate Judge
Renee Ishikawa Delizo,
Deputy Prosecuting Attorney, /s/ Sonja M.P. McCullen
County of Maui, Associate Judge
for Plaintiff-Appellee.
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