State v. Sardinha.

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Electronically Filed
Supreme Court
SCWC-XX-XXXXXXX
09-MAR-2023
08:27 AM
Dkt. 13 OPA

IN THE SUPREME COURT OF THE STATE OF HAWAII

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STATE OF HAWAII,
Respondent/Plaintiff-Appellant,

vs.

BRONSON SARDINHA,
Petitioner/Defendant-Appellee.

SCWC-XX-XXXXXXX

CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-XX-XXXXXXX; CR. NO. 1PC161000359)

MARCH 9, 2023

RECKTENWALD, C.J., NAKAYAMA, McKENNA, AND EDDINS, JJ.,
AND WILSON, J., DISSENTING

OPINION OF THE COURT BY NAKAYAMA, J.

This appeal calls upon the court to clarify when

multiple offenses arise from the same criminal episode. As this

court has articulated, the test for determining the singleness

of a criminal episode is based on whether the alleged conduct

was so closely related in time, place, and circumstances that a
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complete account of one charge cannot be related without

referring to details of the other charge. In order for multiple

offenses to satisfy the circumstances element of the single-

episode test, the alleged offenses must raise similar facts

and/or issues such that there is a substantive overlap in

evidence between the offenses.

Applying these criteria to the case before us, the

Intermediate Court of Appeals (ICA) correctly determined that

Hawaiʻi law does not require the joinder of Petitioner/Defendant-

Appellee Bronson Sardinha’s traffic offenses with his assault

offense. We therefore affirm the ICA’s Judgment on Appeal.

I. BACKGROUND

A. Factual Background

1. The Traffic Offenses1

On November 28, 2015, the Honolulu Police Department

(HPD) dispatched Officer Crystal D. Roe (Officer Roe) to a

“Motor Vehicle Collision Fled Scene” incident around 10:50 P.M.

at the intersection of Farrington Highway and Waipiʻo Point

Access Road in Waipahu. The fleeing vehicle had struck another

1 Pursuant to Hawaiʻi Rules of Evidence Rule 201(c) (1980), this court
takes judicial notice of the proceedings in the District Court of the First
Circuit in case number 1DTC-15-071381. Judicial notice is appropriate
because the proceedings are a significant component of the present inquiry.

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vehicle and purportedly bore Hawaiʻi license plate “GRA-505.”

These events constitute the “Traffic Offenses.”

After discovering the fleeing vehicle later that

night, HPD cited Sardinha for (1) driving a motor vehicle

without a valid driver’s license, in violation of Hawaiʻi Revised

Statutes (HRS) § 286-102;2 (2) driving a motor vehicle while his

license was revoked, in violation of HRS § 286-132;3

(3) inattention to driving, in violation of HRS § 291-12;4

2 Hawaiʻi Revised Statutes (HRS) § 286-102(a) (2007) provides:

No person, except one exempted under section 286-105, one
who holds an instruction permit under section 286-220, one
who holds a provisional license under section 286-102.6,
one who holds a commercial driver’s license issued under
section 286-239, or one who holds a commercial driver’s
license instruction permit issued under section 286-236,
shall operate any category of motor vehicles listed in this
section without first being appropriately examined and duly
licensed as a qualified driver of that category of motor
vehicles.

3 HRS § 286-132 (2007) provides:

Except as provided in section 291E-62, no resident or
nonresident whose driver’s license, right, or privilege to
operate a motor vehicle in this State has been canceled,
suspended, or revoked may drive any motor vehicle upon the
highways of this State while the license, right, or
privilege remains canceled, suspended, or revoked.

4 HRS § 291-12 (Supp. 2008) provides:

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 subjected to
a surcharge of up to $100 which shall be deposited into the
trauma system special fund.

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(4) leaving the scene of an accident involving vehicle damage,

in violation of HRS § 291C-13;5 (5) operating a vehicle after his

license was revoked for operating a vehicle under the influence

of an intoxicant, in violation of HRS § 291E-62(a);6 and (6) not

5 HRS § 291C-13 (Supp. 2008) provides in relevant part:

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
291C-14. Every such stop shall be made without obstructing
traffic more than is necessary.

6 HRS § 291E-62(a) (Supp. 2011) provides in relevant part:

No person whose license and privilege to operate a
vehicle have been revoked, suspended, or otherwise
restricted pursuant to . . . section 291E-61 . . . as those
provisions were in effect on December 31, 2001, shall
operate or assume actual physical control of any vehicle:

(1) In violation of any restrictions placed on the
person’s license;
(2) While the person’s license or privilege to
operate a vehicle remains suspended or revoked;
or
(3) Without installing an ignition interlock device
required by this chapter.

HRS § 291E-61(a) (Supp. 2011) provides in relevant part:

A person commits the offense of operating a vehicle
under the influence of an intoxicant if the person operates
or assumes actual physical control of a vehicle:

(1) While under the influence of alcohol in an
amount sufficient to impair the person’s normal
mental faculties or ability to care for the
person and guard against casualty;
(2) While under the influence of any drug that
impairs the person’s ability to operate the
vehicle in a careful and prudent manner;
(3) With .08 or more grams of alcohol per two
hundred ten liters of breath; or
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possessing a motor vehicle insurance policy, in violation of

HRS § 431:10C-104.7

On December 28, 2015, Respondent/Plaintiff-Appellant

State of Hawaiʻi (the State) charged Sardinha by complaint with

four of the cited offenses. Between December 28, 2015 and March

8, 2016, the State dismissed all of the charges except for the

inattention to driving charge, and Sardinha agreed to enter a no

contest plea on the inattention to driving charge. The District

Court of the First Circuit filed a Notice of Entry of Judgment

and/or Order and Plea/Judgment accepting Sardinha’s no contest

plea on March 8, 2016.

2. The Assault Offense

Around 11:50 P.M. on November 28, 2015, HPD dispatched

Officers Jon M. Nguyen (Officer Nguyen) and Shayne Sesoko

(Officer Sesoko) to a reported argument at Nancy’s Kitchen in

the Waipiʻo Shopping Center. Upon arriving at Nancy’s Kitchen,

Officers Nguyen and Sesoko determined that a male (later

(4) With .08 or more grams of alcohol per one
hundred milliliters or cubic centimeters of
blood.

7 HRS § 431:10C-104(a) (2005) provides:

Except as provided in section 431:10C-105, no person
shall operate or use a motor vehicle upon any public
street, road, or highway of this State at any time unless
such motor vehicle is insured at all times under a motor
vehicle insurance policy.

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identified as Sardinha) and a female were the parties to the

argument. Although the argument had ended by the time the

officers arrived, the officers remained at Nancy’s Kitchen while

the female waited inside for her mother to pick her up.

As the officers waited, Sardinha remained outside of

the establishment with the officers and swore at the officers.

Sardinha eventually walked to and got into the driver’s seat of

a white SUV with Hawaiʻi license plate “GRA-505.” The officers

noticed that the vehicle had front-end damage and had the same

license plate as the vehicle involved in the Traffic Offenses.

Upon recognizing the vehicle, Officer Sesoko informed Sardinha

that the vehicle had been involved in a hit-and-run. Sardinha

responded that the SUV was not his and that he had not been

sitting in the vehicle. Sardinha also continued denigrating the

officers and challenged Officer Nguyen to fight.

Around 12:30 A.M. on November 29, 2015, HPD also

dispatched Officer Roe to Nancy’s Kitchen. Sardinha recognized

Officer Roe from an unrelated October 31, 2015 incident, and

briefly complied with Officer Roe’s request for his personal

identification. However, Sardinha continued acting aggressively

towards Officers Nguyen and Sesoko.

After receiving Sardinha’s personal identification,

the officers ran a warrant check on Sardinha. HPD dispatch

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informed the officers that Sardinha had a possible contempt

warrant. The officers detained Sardinha because of the possible

warrant and attempted to place him in a squad car while they

waited for confirmation of the warrant. However, Sardinha

refused to cooperate and headbutted the right side of Officer

Sesoko’s face. The officers subsequently arrested Sardinha for

assaulting a law enforcement officer. These events constitute

the “Assault Offense.”

On March 8, 2016, a grand jury indicted Sardinha for

Assault Against a Law Enforcement Officer in the First Degree,

in violation of HRS § 707-712.5(1)(a),8 in the Circuit Court of

the First Circuit (circuit court).

B. Circuit Court Motion to Dismiss9

On August 29, 2016, Sardinha filed a Motion for

Dismissal with Prejudice Pursuant to HRS § 701-111 and § 701-

109. According to Sardinha, HRS § 701-10910 required the State

8 HRS § 707-712.5(1)(a) (2014) provides:

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[.]

9 The Honorable Glenn J. Kim presided.

10 HRS § 701-109 (2014) provides in relevant part:

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to try the Traffic Offenses and the Assault Offense together

because the offenses arose from a single criminal episode.

Citing State v. Keliiheleua, 105 Hawaiʻi 174, 181, 95 P.3d 605,

612 (2004), Sardinha pointed out that the applicable test for

determining whether multiple offenses arise from the same

episode is “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.” Sardinha reasoned that any trial for the Assault

Offense would necessarily involve details of the Traffic

Offenses because (1) the officers referenced the Traffic

Offenses in their reports for the Assault Offense, and

(2) Officer Sesoko triggered Sardinha by mentioning that

Sardinha’s vehicle was in a hit-and-run.

The circuit court heard Sardinha’s motion to dismiss

on September 28, 2016. During the hearing, Sardinha emphasized

(2) Except as provided in subsection (3) of this
section, 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.

(3) When a defendant is charged with two or more
offenses based on the same conduct or arising from the same
episode, the court, on application of the prosecuting
attorney or of the defendant, may order any such charge to
be tried separately, if it is satisfied that justice so
requires.

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that a key issue for the circuit court to consider was the

timing of the two cases. Sardinha noted that even though the

State “could try the [Traffic Offenses] case without mentioning

the [Assault Offense] case,” it “cannot give a complete

accounting of the [Assault Offense] case without mentioning the

[Traffic Offenses] case.”

The circuit court granted Sardinha’s motion,

explaining that it did not “see how a complete account of the

[Assault Offense] could be given without referring to the

details of the [Traffic Offenses].” In particular, the circuit

court reasoned that even though the State could completely avoid

discussing the Traffic Offenses, Sardinha would still be

entitled to cross-examine the officers regarding the Traffic

Offenses.

C. ICA Proceedings

The State appealed the circuit court’s order granting

Sardinha’s motion to dismiss to the ICA.

On appeal, the State argued that “although it does not

appear that the time and place factors are dependent on any

bright-line time limit or distance between the multiple

offenses, it appears that resolution of these factors is instead

dependent on the circumstances that allegedly bind the multiple

offenses[.]” Citing State v. Akau, 118 Hawaiʻi 44, 57, 185 P.3d

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229, 242 (2008), the State asserted that one of the key factors

in determining whether multiple offenses are closely related is

if one offense provides probable cause to suspect the defendant

of committing the other. According to the State, however, the

underlying facts of the Traffic Offenses did not provide the

officers with probable cause to suspect Sardinha of committing

the Assault Offense.

The State further claimed that the Traffic Offenses

were not related to the Assault Offense because “[t]he facts and

issues involved in the [Traffic Offenses case] are completely

different from the facts and issues presented in the Assault

[Offense] charge.” Specifically, the relevant statutes raise

distinct dispositive issues such that the witnesses to be used

and the evidence to be offered would not significantly overlap.

Responding to the State’s probable cause argument,

Sardinha asserted that the facts of the Assault Offense actually

provided the officers with probable cause to suspect Sardinha

for the Traffic Offenses. Sardinha also reiterated the points

he made to the circuit court.

On January 15, 2021, the ICA ruled in a memorandum

opinion that the Traffic Offenses and the Assault Offense were

not so closely related in time, place, or circumstances that

HRS § 701-109(2) compelled the joinder of the two proceedings.

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In particular, the ICA noted that “[t]here 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.” Moreover,

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[.]” [105 Hawaiʻi at 182, 95 P.3d at 613.]
Here, the statutory requirements of the Inattention to
Driving Charge, and the Assault Against [Law Enforcement
Officer] charge, are dissimilar. There is no overlap in
the elements that the State must prove for the [Traffic
Offenses] or the [Assault Offense].

(First alteration in original; footnotes omitted.)

Addressing the State’s probable cause argument, the

ICA quoted State v. Maganis, 109 Hawaiʻi 84, 86, 123 P.3d 679,

681 (2005), for the premise that

[p]robable 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.

However, the ICA concluded that “the facts and circumstances of

the [Traffic Offenses] did not provide sufficient probable cause

to suspect that Sardinha would subsequently head-butt Officer

Sesoko, leading to the [Assault Offense].” The ICA further

concluded that the Assault Offense did not provide the officers

with probable cause to suspect Sardinha for the Traffic Offenses

because “the record does not reflect how or when Sardinha was

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identified as the driver in the [Traffic Offenses].” The ICA

therefore vacated the circuit court’s order.

This application for writ of certiorari followed.

II. STANDARDS OF REVIEW

A. Motion to Dismiss Indictment

A trial court’s decision to dismiss an indictment is

reviewed for an abuse of discretion. State v. Chong, 86 Hawaiʻi

282, 287-88 n.2, 949 P.2d 122, 127-28 n.2 (1997). “An abuse of

discretion occurs ‘where the trial court has clearly exceeded

the bounds of reason or disregarded rules or principles of law

or practice to the substantial detriment of a party litigant.’”

Carr v. Strode, 79 Hawaiʻi 475, 488, 904 P.2d 489, 502 (1995)

(quoting Amfac, Inc. v. Waikiki Beachcomber Inv. Co., 74 Haw.

85, 114, 839 P.2d 10, 26 (1992)).

B. Statutory Interpretation

“The interpretation of a statute is a question of law

which this court reviews de novo.” Keep the N. Shore Country v.

Bd. Of Land & Nat. Res., 150 Hawaiʻi 486, 503, 506 P.3d 150, 167

(2022) (citing State v. Ruggiero, 114 Hawai‘i 227, 231, 160 P.3d

703, 707 (2007)).

III. DISCUSSION

On certiorari, Sardinha reiterates his assertion that

the Traffic Offenses and the Assault Offense are so closely

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related in time, place, and circumstances that they arose from a

single episode. Seizing upon the State’s analysis of Akau,

Sardinha goes one step further to assert that if the Assault

Offense provided probable cause for the officers to suspect

Sardinha for the Traffic Offenses, then the circumstances

element of the single-episode test is satisfied. Sardinha

additionally repeats his claim that “it would be impossible to

give a complete account of the facts of the [Assault Offense]

without mentioning the [Traffic Offenses].”

However, Akau’s reliance on probable cause to satisfy

the circumstances element of the single-episode test is flawed.

Treating the existence of probable cause as a dispositive factor

improperly cuts short the single-episode test’s requirement to

consider whether “a complete account of one charge cannot be

related without referring to details of the other charge.”

State v. Carroll, 63 Haw. 345, 351, 627 P.2d 776, 780 (1981).

An analysis of the statutory requirements of the alleged

offenses as well as the underlying facts illustrates that there

is negligible overlap between the Traffic Offenses and the

Assault Offense. Additionally, the mere fact that Sardinha may

cross-examine the officers regarding their knowledge of the

Traffic Offenses during a trial for the Assault Offense does not

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establish that the Assault Offense cannot be tried without

reference to the Traffic Offenses.

A. The requirements of HRS § 701-109(2) and the single-episode
test.

Pursuant to HRS § 701-109(2),

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.

This rule “reflect[s] a policy that defendants should

not have to face the expense and uncertainties of two trials

based on essentially the same episode.” Commentary on HRS

§ 701-109(2). Furthermore, “[i]t is designed to prevent the

State from harassing a defendant with successive prosecutions

where the State is dissatisfied with the punishment previously

ordered or where the State has previously failed to convict the

defendant.” Carroll, 63 Haw. at 351, 627 P.2d at 780 (citing

State v. Solomon, 61 Haw. 127, 134, 596 P.2d 779, 784 (1979)).

Although it may be more straightforward to determine

when multiple offenses are (1) “based on the same conduct,”

(2) “known to the appropriate prosecuting officer at the time of

the commencement of the first trial,” and (3) “within the

jurisdiction of a single court”; it is not always clear whether

multiple offenses “aris[e] from the same episode.” See, e.g.,

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Akau, 118 Hawaiʻi 44, 185 P.3d 229; Keliiheleua, 105 Hawaiʻi 174,

95 P.3d 605; State v. Servantes, 72 Haw. 35, 804 P.2d 1347

(1991); Carroll, 63 Haw. 345, 627 P.2d 776. Thus, this court

has articulated 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.” Carroll, 63 Haw. at

351, 627 P.2d at 780.

In light of the foregoing, HRS § 701-109(2) compels

the State to join multiple offenses in a single trial when three

elements and three sub-elements are satisfied. These are:

(1) the offenses are based on the same conduct or arise
from the same episode;
(2) the offenses are all known to the appropriate
prosecuting officer at the time of the commencement of
the first trial; and
(3) the offenses are within the jurisdiction of a single
court.
HRS § 701-109(2). In order for the offenses to arise from the

same episode, they must

(a) be so closely related in time that a complete account
of one charge cannot be related without referring to
details of the other charge;
(b) be so closely related in place that a complete account
of one charge cannot be related without referring to
details of the other charge; and
(c) be so closely related in circumstances that a complete
account of one charge cannot be related without
referring to details of the other charge.

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Carroll, 63 Haw. at 351, 627 P.2d at 780. If the State fails to

try a defendant for multiple offenses that satisfy each of these

elements in a single proceeding, the State is barred from

bringing the related charges in a subsequent proceeding.

HRS § 701-111(1)(b).11

B. The circumstances element of the single-episode test
requires the court to consider whether the offenses involve
similar facts and/or issues.

1. The origins of the single-episode test illustrate that
multiple offenses are closely related in circumstances
when the offenses are interrelated.

As a preliminary matter, Carroll’s single-episode test

is based upon the test created by our sister court in State v.

Boyd, 533 P.2d 795 (Or. 1975). See Carroll, 63 Haw. at 349,

351-52, 627 P.2d at 779-81. There, officers of the Eugene,

Oregon police department executed a warrant to search defendant

11 HRS § 701-111(1)(b) (2014) 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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Sharon Boyd’s home for evidence of a burglary. Boyd, 533 P.2d

at 796. “In executing the warrant, the police discovered

evidence of a number of other crimes, including a television set

stolen some months before, a quantity of amphetamine tablets,

and more than an ounce of marijuana.” Id. An Oregonian

prosecutor subsequently obtained two indictments against Boyd:

one based on her possession of a stolen television and one for

possession of amphetamines. Id. at 796-97. However, the

prosecutor did not join the indictments for a single trial. Id.

at 797.

According to Boyd, Oregon Revised Statutes

§ 132.560(2) required the prosecutor to join the indictments in

a single proceeding because she would otherwise be subject to

double jeopardy. Id. at 797-98. The statute provided:

When there are several charges against any person or
persons for the same act or transaction, instead of having
several indictments, the whole may be joined in one
indictment in several counts; and if two or more
indictments are found in such cases, the court may order
them to be consolidated.

Id. at 798 n.3 (emphasis added).

The Boyd court explained that the statute was designed

to consolidate charges “where evidence of one offense would be

relevant to evidence of another crime.” Id. at 798 (quoting

Proposed Oregon Criminal Procedure Code, § 84 cmt. at 50

(1972)). In turn, the court explained that the “initial

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guideline” for joining charges is “if a complete account of one

charge necessarily includes details of the other charge, the

charges must be joined to avoid a later double jeopardy defense

to further prosecution.” Id. at 799. The Oregon Supreme Court

therefore “construe[d its] test of interrelated events as

necessitating joinder only where the facts of [e]ach charge can

be explained adequately only by drawing upon the facts of the

other charge. Stated differently, the charge[s] must be cross-

related.” Id.

Applying its test to the facts before it, the Oregon

Supreme Court explained that the two charges should have been

brought together because “[t]he criminal code treats the fact of

possession as a criminal act of a continuing nature. In this

statutory sense, the [possession] of the television set and the

drugs, existing at the same place and time, constitute a single

occurrence.” Id. at 801. In the same vein, “[i]f a defendant

is charged with the possession of drugs, some of which had been

acquired at one time and the rest at another time, it would seem

clear that he would be entitled to object to multiple

prosecutions.” Id. However, the court pointed out, “[h]ad the

defendant been charged with the actual theft of the television

set on one occasion and the illegal purchase of drugs at another

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time, it would be clear enough that the events would be

unrelated and therefore obviously not unitary.” Id.

In light of the Boyd court’s analysis, the fact that

there may be some factual overlap between multiple charges does

not require joinder. Rather, the two charges must be “cross-

related” such that “a complete account of one charge necessarily

includes details of the other charge.” Id. at 799 (emphasis

added).

2. This court’s application of the circumstances element
illustrates that multiple offenses are closely related
in circumstances where there is substantive overlap
between the legal issues and/or facts.

Our adoption and application of the single-episode

test similarly establishes that a significant level of factual

and/or legal overlap is necessary before multiple offenses are

“so closely related in . . . 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.

First, in Carroll, a private citizen reported that

defendant Alfred Carroll started a fire on school property. Id.

at 346, 627 P.2d at 777. Police officers found Carroll,

conducted a routine search, and arrested him. Id. During the

routine search, the arresting officer found a canister but

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returned it to Carroll because the arresting officer thought the

cannister contained nasal spray. Id. Less than an hour later,

a different officer conducted a custodial search while booking

Carroll and discovered a cannister of Mace in his possession.

Id. The State subsequently charged Carroll with attempted

criminal property damage in the second degree, and with

possession of an obnoxious substance. Id.

On appeal, Carroll encouraged this court to adopt the

Boyd single-episode test to determine if both charges should

have been tried together. Id. at 349, 627 P.2d at 779. This

court agreed, explaining that

proximity in time, place and circumstances of the offenses
will necessarily enter into the policy considerations
underlying HRS § 701-109(2). 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 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).

Nevertheless, this court rejected Carroll’s

contentions that the underlying offenses satisfied the

circumstances component of the single-episode test because “the

arresting officer failed to recognize the illegal nature of the

cannister at the time of the search for weapons. As a result,

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[Carroll’s] possession of the Mace continued after his initial

arrest, until the subsequent discovery and identification at the

police station.” Id. at 352, 627 P.2d at 781. In turn, the

possession charge was not effected until the officers found that

the cannister contained an obnoxious substance. Id.

Second, in Servantes, police officers saw a passenger

smoking marijuana in defendant Robin Servantes’s vehicle. 72

Haw. at 36, 804 P.2d at 1348. After the passenger stepped out

of the vehicle, the officers saw a bag of marijuana next to

Servantes’s foot, arrested Servantes for promoting a detrimental

drug in the third degree, and impounded his vehicle. Id. at 36-

37, 804 P.2d at 1348. Based on the arrest, the officers

obtained and executed a search warrant for the vehicle and

discovered cocaine and drug paraphernalia. Id. at 37, 804 P.2d

at 1348. The State then also charged Servantes with promoting a

dangerous drug in the third degree and possession with intent to

use drug paraphernalia. Id. This court held that the two

offenses were closely related in circumstances because (1) the

charges arose from Servantes’s simultaneous loss of possession

of both the marijuana and cocaine, and (2) the initial charge

provided probable cause to suspect that Servantes possessed

additional illicit substances. Id. at 39, 804 P.2d at 1349.

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Third, in Keliiheleua, defendant Christopher

Keliiheleua rear-ended a parked car on November 18, 2000,

injuring a passenger in his own vehicle as well as the driver of

the parked car. 105 Hawaiʻi at 176, 95 P.3d at 607. Later that

same day, Keliiheleua obtained an insurance policy and filed a

claim asserting that the accident occurred after he purchased

the policy. Id. The State discovered Keliiheleua’s actions and

charged him with insurance fraud. Id. at 176-77, 95 P.3d at

607-08. On December 6, 2001, Keliiheleua entered a no contest

plea on the insurance fraud charge. Id. at 177, 95 P.3d at 608.

Nine months later, the State also charged Keliiheleua with

negligent injury in the first degree for harming his passenger.

Id. This court determined that “the circumstances of the cases

were not similar” because “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. The

court also rejected Keliiheleua’s attempt to analogize his case

with Servantes, noting that “there was no reason to suspect that

subsequent to causing the motor vehicle accident, Defendant

would obtain an insurance policy and then file a fraudulent

insurance claim. Furthermore, unlike the offenses involved in

Servantes, the negligent injury charge can be tried without

mention of the fraud case.” Id.

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Considering our precedents, this court has declined to

hold that multiple offenses arise from a single episode simply

because the offenses share some common facts. For instance, in

Carroll, the possession offense was only discovered because a

booking officer searched Carroll after he was brought in for

attempted criminal property damage. 63 Haw. at 346, 627 P.2d at

777. Similarly, in Keliiheleua, the insurance fraud offense

necessarily shared some factual overlap with the negligent

injury offense because both offenses followed the same vehicular

collision. 105 Hawaiʻi at 176-77, 95 P.3d at 607-08.

Our precedents make clear, instead, that multiple

offenses arise from the same episode when the offenses are

legally connected and/or share substantial factual overlap.

Although this court did not hold that the Carroll offenses or

the Keliiheleua offenses satisfied the single-episode test, our

discussion of the circumstances element in Carroll and

Keliiheleua is illuminating. Again, in Carroll, this court

suggested that when offenses arise from the same episode, “the

facts and issues involved in the charges will be similar” and

create an overlap in the evidence to be presented. 63 Haw. at

351, 627 P.2d at 780. The Keliiheleua court reiterated this

explanation, stating that the offenses therein were not closely

related in circumstances because “the facts and issues involved

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in the charges (namely, the statutory requirements of the

alleged offenses) are dissimilar.” 105 Hawaiʻi at 182, 95 P.3d

at 613.

Although the Servantes court did not provide any

significant analysis of why its underlying facts and issues were

connected, it is evident that the offenses therein satisfied the

similar facts and issues requirement identified by Carroll and

Keliiheleua. See 72 Haw. at 38-39, 804 P.2d at 1349. At the

time Servantes committed the relevant offenses, “[a] person

commit[ted] the offense of promoting a detrimental drug in the

third degree if he knowingly possesse[d] any marijuana or any

Schedule V substance in any amount.” HRS § 712-1249(1) (1985).

Similarly, “[a] person commit[ted] the offense of promoting a

dangerous drug in the third degree if he knowingly possesse[d]

any dangerous drug in any amount.” HRS § 712-1243(1) (1985).

Lastly,

[i]t [was] unlawful for any person to use, or to possess
with intent to use, drug paraphernalia to plant, propagate,
cultivate, grow, harvest, manufacture, compound, convert,
produce, process, prepare, test, analyze, pack, repack,
store, contain, conceal, inject, ingest, inhale, or
otherwise introduce into the human body a controlled
substance in violation of this chapter.

HRS § 329-43.5(a) (Supp. 1992).12

12 Marijuana was classified as a Schedule I controlled substance.
HRS § 329-14(d)(16) (Supp. 1992).
Additionally, “drug paraphernalia” was defined in relevant part as
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Based upon these statutory requirements, the

proceedings against Servantes were legally and factually

interrelated insofar as evidence which would prove Servantes

promoted a detrimental drug in the third degree could also be

used to prove Servantes possessed with the intent to use drug

paraphernalia. Specifically, the police found Servantes with “a

clear plastic bag of marijuana . . . next to [his] foot.”

Servantes, 72 Haw. at 36, 804 P.2d at 1348.

In light of the foregoing, we clarify that multiple

offenses must be legally and/or factually interrelated in order

to be “so closely related in . . . 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 780.13

“all equipment, products, and materials of any kind which are used . . . in
. . . storing[ or] containing . . . a controlled substance in violation of
this chapter. It includes, but is not limited to . . . [c]ontainers and
other objects used . . . in storing or concealing controlled substances.”
HRS § 329-1 (Supp. 1992).

13 Given HRS § 701-109’s “dual considerations of fairness to the defendant
and society’s interest in efficient law enforcement,” State v. Carroll, 63
Haw. 345, 351, 627 P.2d 776, 780 (1981), we note that prosecutors may
consider joining potentially related offenses even when not required to do so
by HRS § 701-109 and this opinion. Then, as the Boyd court noted,

[t]he defendant may oppose, acquiesce in, or join in th[e]
motion or, if the charges were initially brought together,
move for severance. The defendant will thus be forced to
make a choice as to joinder or severance . . . . Any
objections the defendant might make to the prosecutor’s
choice would thereafter be waived.

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3. The presence of probable cause alone does not
establish a close relationship in circumstances
between multiple offenses.

Despite this court’s prior examinations of facts and

issues to evaluate whether multiple offenses arise from a single

episode, the Akau majority deviated from our history by focusing

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

offense.” See Akau, 118 Hawaiʻi at 57, 185 P.3d at 242.

The Akau majority’s focus on probable cause is

problematic insofar as the mere presence of probable cause does

not mean 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.

Conversely, multiple offenses may be closely related

in circumstances even when one offense does not provide probable

cause to suspect the defendant of committing the other. For

instance, in Boyd, the Oregon Supreme Court did not contemplate

whether the fact that Boyd possessed a television set provided

the police with probable cause to suspect that she also

possessed illicit substances. See generally 533 P.2d 795.

553 P.2d 795, 800 (Or. 1975).

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Nevertheless, the Boyd court held that the offenses arose from

the same episode because

the [possession] of the television set and the drugs,
existing at the same place and time, constitute a single
occurrence. Once unlawful possession of goods, without
more, is recognized as criminal conduct, there is no reason
for fragmenting the criminal conduct into as many parts as
there are different items of property, however acquired.

Id. at 801.

Thus, the presence or absence of probable cause is not

dispositive in determining whether multiple offenses are so

closely related in circumstances that a complete account of one

charge cannot be related without referring to details of the

other charge. Nevertheless, the presence of probable cause may

be relevant where, for instance, there are common elements

between the statutory requirements of multiple offenses. See,

e.g., Servantes, 72 Haw. at 39, 804 P.2d at 1349.

We therefore hold that Akau was wrongly decided

insofar as it held that the existence of probable cause is

sufficient to compel the joinder of multiple offenses in a

single proceeding.14

14 Because probable cause is not sufficient to compel joinder of multiple
offenses in a single proceeding, we need not address which offense was
discovered first or if “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 offense.” Instead, as
discussed below, compulsory joinder of the trial of the Traffic Offenses with
that of the Assault Offense is not necessary in this case based on (1) a lack
of overlap between the legal issues presented by the Traffic Offenses and the
Assault Offense; and (2) a lack of overlap between the material facts of the
Traffic Offenses and those of the Assault Offense.
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C. The Traffic Offenses and the Assault Offense are not so
closely related in circumstances that a complete account of
the Assault Offense cannot be related without referring to
details of the Traffic Offenses.

Turning to the offenses before us, HRS § 701-109(2)

does not compel the joinder of the trial of the Traffic Offenses

with that of the Assault Offense.

As a preliminary matter, Sardinha concedes that the

Traffic Offenses may be tried without reference to the Assault

Offense. Thus, the question is whether a complete account of

the Assault Offense may be related without referring to details

of the Traffic Offenses. Carroll, 63 Haw. at 351, 627 P.2d at

780. It may.

First, there is no overlap between the legal issues

presented by the Traffic Offenses and the legal issue presented

by the Assault Offense. In order to prevail on a charge of

inattention to driving, the State was required to show that

Sardinha “operate[d] 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.” HRS § 291-

12. Similarly, the State would have had to show that Sardinha

drove without a valid license; drove while his license was

revoked; drove, caused a collision resulting in property damage,

and did not return to and remain at the scene of the collision;
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drove while his license was revoked for operating a vehicle

under the influence of an intoxicant; or drove an uninsured

vehicle in order to prevail on the other cited traffic offenses.

See generally HRS §§ 286-102(a), 286-132, 291C-13, 291E-62(a),

431:10C-104(a). In contrast, to prevail in a trial for the

Assault Offense, the State has to establish that Sardinha

“[i]ntentionally or knowingly cause[d] bodily injury to a law

enforcement officer who [was] engaged in the performance of

duty.” HRS § 707-712.5(1).

Based purely on the elements of the charges, any

evidence that would establish that Sardinha was responsible for

the Traffic Offenses would not establish that Sardinha assaulted

a law enforcement officer, and vice versa. See Keliiheleua, 105

Hawaiʻi at 182, 95 P.3d at 613 (“[I]n this case, the facts and

issues involved in the charges (namely the statutory

requirements of the alleged offenses) are dissimilar.”).

Second, there is no substantive overlap between the

material facts of the Traffic Offenses and those of the Assault

Offense. Sardinha asserts that he “could have” cross-examined

the officers about the Traffic Offenses “to evidence their

perception of Sardinha . . . and their bias, interest and motive

that may have colored their actions during the assault

incident.” Carroll forecloses Sardinha’s attempt to bootstrap

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the Traffic Offenses to the Assault Offense via potential cross-

examination questions. Defense counsel there could have cross-

examined the booking officer about the officer’s knowledge of

the attempted arson. See Carroll, 63 Haw. at 346, 627 P.2d at

777. However, this court held that the Carroll offenses did not

arise from a single episode. Id. Thus, we clarify that the

relevant inquiry is not whether a defendant could elicit facts

about the other offense, but whether the prosecution can fairly

put on a complete case without reference to the other offense.

Sardinha also claims that the offenses arose from a

single episode because the Assault Offense was “precipitated by

the officers’ recognition that the vehicle he was sitting in had

been involved in the [Traffic Offenses].” Sardinha’s attempt to

sanitize the Assault Offense and merge two unrelated events is

unpersuasive. The record establishes that Sardinha acted

belligerently towards the officers before the officers even

noticed the vehicle. Officer Ngyuen reported that Sardinha “was

yelling profanities at me and Officer S. SESOKO calling us

‘fucking pussy bitches’.” Officer Sesoko similarly recounted

that Sardinha “[s]tated he would kick our ass [sic] if we didn’t

have our badges.”

Furthermore, the assault occurred because the officers

detained Sardinha for a possible contempt warrant – not the

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Traffic Offenses. Once the officers identified Sardinha, they

detained Sardinha because of a possible contempt warrant — not

because of his potential involvement with the Traffic Offenses.

Sardinha then headbutted Officer Sesoko when the officers

attempted to place Sardinha in the squad car to wait for

confirmation of the warrant.

Accordingly, the facts and issues of the Traffic

Offenses are dissimilar to those of the Assault Offense. See

Keliiheleua, 105 Hawaiʻi at 182, 95 P.3d at 613. In turn, the

offenses are not “so closely related in . . . 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. Compulsory joinder is therefore not

required.15

IV. CONCLUSION

In light of the foregoing, the Traffic Offenses and

the Assault Offense did not arise from the same episode. The

circuit court therefore acted contrary to the rules and

principles of law in granting Sardinha’s motion to dismiss, and

15 Under the single-episode test, joinder is only necessary where multiple
offenses are “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). Because we hold that the Traffic Offenses and the Assault Offense
were not closely related in circumstances, we need not address Sardinha’s
contentions that the offenses are closely related in time or place.

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abused its discretion. See Carr, 79 Hawaiʻi at 488, 904 P.2d at

502. In turn, the ICA correctly determined that the State need

not try Sardinha for both incidents in a single proceeding.

Accordingly, we affirm the ICA’s February 18, 2021

Judgment on Appeal, which vacated the circuit court’s

October 14, 2016 Order Granting Defendant Bronson Sardinha’s

Motion to Dismiss with Prejudice.

Thomas M. Otake /s/ Mark E. Recktenwald
for petitioner
/s/ Paula A. Nakayama
Stephen K. Tsushima
/s/ Sabrina S. McKenna
for respondent
/s/ Todd W. Eddins

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