State v. Borge, Jr.

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

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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