State v. Borge, Jr.

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Electronically Filed
Supreme Court
SCWC-XX-XXXXXXX
15-MAR-2023
08:01 AM
Dkt. 25 OP

IN THE SUPREME COURT OF THE STATE OF HAWAIʻI

---o0o---

STATE OF HAWAIʻI,
Respondent/Plaintiff-Appellee,

vs.

TROY D. BORGE, JR.,
Petitioner/Defendant-Appellant.

SCWC-XX-XXXXXXX

CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-XX-XXXXXXX; CR. NO. 2CPC-XX-XXXXXXX)

MARCH 15, 2023

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

OPINION OF THE COURT BY McKENNA, J.

I. Introduction

This case addresses whether the Circuit Court of the Second

Circuit (“circuit court”)1 abused its discretion by denying Troy

D. Borge’s (“Borge”) motion to dismiss an indictment where,

1 The Honorable Kelsey T. Kawano presided.
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before the grand jury, the prosecutor elicited testimony that

Borge had invoked his right to remain silent.

We also address whether the circuit court erred by

awarding the complaining witness (“CW”) $1,461,444.01 in

restitution for hospital bills under Hawai‘i Revised Statutes

(“HRS”) § 706-646 (2014 & Supp. 2019) when (1) CW did not

request restitution for these amounts; and (2) most of the bills

were written off by the hospital and some were paid by CW’s

insurer, AlohaCare.

We hold the circuit court abused its discretion when it

denied Borge’s motion to dismiss indictment. The prosecutor

violated Borge’s Hawaiʻi due process right to a fair and

impartial grand jury hearing by eliciting testimony before the

grand jury that Borge invoked his right to remain silent.

With respect to restitution, interpreting HRS § 706-646, we

hold that (1) restitution is limited to amounts requested by a

victim; and (2) the restitution awarded was not for CW’s

“reasonable and verified losses” because (a) HRS § 706-646(3)

allows for restitution only for amounts “sufficient to reimburse

any victim fully for losses” (emphasis added); (b) the

collateral source rule does not apply; and (c) even if HRS §

706-646 was ambiguous, the rule of lenity would not allow the

restitution awarded here for the reasons already provided.

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We therefore also overrule the opinion of the Intermediate

Court of Appeals (“ICA”) in State v. Tuialii, 121 Hawai‘i 135,

214 P.3d 1125 (App. 2009), overruled on other grounds by State

v. Kealoha, 142 Hawai‘i 46, 414 P.3d 98 (2018), which held that a

restitution award can include sums paid by a direct victim’s

insurer.

Hence, we vacate the circuit court’s September 3, 2020

findings of fact, conclusions of law, and order denying motion

to dismiss indictment (“order denying motion to dismiss

indictment”), June 7, 2021 judgment of conviction and sentence

(“judgment”), and June 17, 2021 free-standing order of

restitution, as well as the ICA’s October 19, 2022 judgment on

appeal, and we remand to the circuit court for dismissal of the

indictment and further proceedings consistent with this opinion.

II. Background

A. Factual background

On November 5, 2019, the Maui Police Department (“MPD”)

responded to an incident at the Pā‘ia Youth and Cultural Center.

CW suffered serious injuries after Borge struck him on the head

several times with a piece of wood. MPD arrested Borge the

following day and initiated criminal charges.

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B. Circuit court proceedings

1. First indictment

On November 22, 2019, the State of Hawaiʻi (“the State”)

presented the case to a grand jury, which returned an indictment

charging Borge with attempted second-degree murder in violation

of HRS §§ 705-500(2) (2014) and 707-701.5 (2014 & Supp. 2018).2

On April 13, 2020, however, the circuit court3 granted

Borge’s motion to dismiss the first indictment without

prejudice.4

2 The State actually first prosecuted Borge in the District Court of the
Second Circuit (“district court”) in case no. 2DCW-19-2338. The complaint
charged Borge with attempted murder in the second degree. The Honorable
Kristin M. Hamman found probable cause lacking for the attempted second-
degree murder charge, but found probable cause for the lesser included
offense of first-degree assault. The State then filed an amended complaint
charging attempted first-degree assault and the district court committed
Borge to the circuit court for further proceedings. No further action
appears in the record on this charge.

Then, on April 14, 2020, the day after the first indictment was
dismissed, the State filed a felony information against Borge in case no.
2CPC-20-207, charging him with first-degree assault. On September 13, 2021,
after Borge’s conviction and sentencing in the case before this court, the
Honorable Kelsey T. Kawano granted the State’s motion to dismiss the felony
information without prejudice.

3 The Honorable Rhonda I.L. Loo presided over the circuit court
proceedings in case no. 2CPC-19-795.

4 The circuit court concluded the State improperly presented hearsay
testimony regarding an eyewitness’s statements to the police and statements
of CW’s treating physician. The State appealed to the ICA, but the appeal
was dismissed after the State re-indicted Borge in the case now before this
court.

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2. Second indictment

On June 26, 2020, the State convened a second grand jury

proceeding. The State presented testimony from an eyewitness

and MPD Detective Dennis Clifton (“Detective Clifton”).

Detective Clifton testified that he was assigned to

investigate the case and that he met with Borge on November 7,

2019, the day after Borge was arrested. The prosecutor then

questioned Detective Clifton about that contact:

Q. . . . . Did you notice any injures to Mr. Borge?
A. No.
Q. None to his head, arms, anyplace?
A. No, sir.
Q. Okay. And you didn’t take any statement from Mr.
Borge?
A. We attempted to question him, but he requested to speak
to an attorney.

(Emphases added.)

After completing questioning of Detective Clifton, the

prosecutor stated, “Before I proceed, Detective Clifton

testified [that] Mr. Borge was asking for an attorney. I’m

going to advise the grand jury that you’re not to consider that

information in your deliberation.”

On June 29, 2020, the grand jury returned a second

indictment, again charging Borge with attempted second-degree

murder.

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3. Motion to dismiss second indictment

On July 17, 2020, Borge moved to dismiss the second

indictment.5 Borge argued the prosecutor committed prosecutorial

misconduct before the grand jury in violation of his due process

rights by improperly eliciting testimony that he had exercised

his right to remain silent. He pointed to Detective Clifton’s

testimony that MPD “attempted to question” Borge, “but he

requested to speak to an attorney.”

The circuit court denied Borge’s motion to dismiss the

second indictment and, on September 3, 2020, entered its order

denying motion to dismiss indictment.

4. No contest plea

On December 7, 2020, Borge entered a no-contest plea to the

lesser included offense of assault in the first degree in

violation of HRS § 707-710 (2014). Borge reserved the right to

5 Borge initially asserted HRS § 701-110(2) (2014) and the doctrine of
collateral estoppel barred the indictment because the district court entered
a final order committing only the lesser included first-degree assault
charge, not the attempted second-degree murder charge, to the circuit court
for further proceedings. Borge is not pursuing that claim on certiorari and
we therefore do not address it.

Borge also alleged the prosecutor presented excessive hearsay and
failed to present clearly exculpatory evidence. He asserted the individual
and cumulative effect of the alleged misconduct violated his due process
right to a fair and unbiased grand jury. In addition, Borge asserted the
indictment must be dismissed because the evidence presented to the grand jury
was insufficient to establish probable cause that Borge committed attempted
second-degree murder. Because we hold the improper elicitation of testimony
regarding Borge’s invocation of his right to remain silent requires dismissal
of the indictment, we do not further discuss these additional arguments.

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appeal the circuit court’s order denying motion to dismiss

indictment.

5. Sentencing, including restitution order

A presentence report was filed on February 2, 2021. The

circuit court ordered the filing of a restitution report. In

the Second Circuit, the court’s special services branch contacts

those identified in the police report to determine whether they

are victims who have sustained losses and wish to submit claims

for restitution.

On April 7, 2021, the State filed an addendum to the

presentence report regarding restitution. It included a

restitution claim from CW’s mother requesting $6,320.66 for her

and her husband’s airfare, lodging, ground transportation, food,

and other expenses for their travel back and forth from their

North Dakota home due to CW’s injuries and hospitalizations.7

The court officer recommended restitution totaling $5,030.64

from these amounts. The circuit court denied the claims from

CW’s parents.

However, the addendum also included 115 pages of billing

records from Maui Memorial reflecting total medical bills of at

7 The request also included $100 for dental services and a $770 credit
card charge from Maui Health System’s Maui Memorial Medical Center (“Maui
Memorial”), both of which the court officer did not recommend based on
“insufficient documentation.”

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least $1,461,444.01,8 and also reflecting payments of $204,174.49

by AlohaCare as well as adjustments or write-offs of

$996,283.16.9

The circuit court held several hearings on sentencing and

restitution; Borge continuously objected to restitution being

ordered for the medical bills.10

On June 7, 2021, the circuit court entered its judgment,

convicting Borge of first-degree assault and sentencing him to a

ten-year term of imprisonment. The circuit court also sentenced

Borge to pay restitution of $1,461,444.01 for CW’s medical

bills. On June 17, 2021, the circuit court also entered a free-

standing order of restitution, ordering Borge to pay CW the

$1,461,444.01.

8 According to the State, this is the total amount for all billings in
the record.

9 The bills appear to reflect payments of $160,008.20, $245.88, and
$43,920.41, sub-totaling $204,174.49, adjustments or write-offs of
$617,625.08, $387.12, and $378,270.96, sub-totaling $996,283.16, and a
remaining balance of $261,619.36. These amounts would total $1,462,077.01, a
difference from the $1,461,444.01 that would not be reconciled by the $770
credit card charge referenced supra in note 6. These differences are
immaterial, however, for the rulings in this opinion.

10 At the June 4, 2021 hearing, the circuit court referenced a filing from
the State, “consisting of a declaration of custodian of records submitted
under cover from Alana Kushi (phonetic), who declares pursuant to declaration
that she is the patient financial services assistant with Maui Health System,
Maui Memorial Medical Center; that she is the custodian of records on behalf
of Maui Health System Maui Memorial Medical Center; that Maui Health System,
Maui Memorial Medical Center maintains the attached billing records; and
attached billing records are true and correct copies of the billing records;
and that those billing records contain 115 pages for” CW. This filing does
not appear in the record.

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C. ICA proceeding

On appeal, Borge asserted the circuit court erred when it

(1) denied his motion to dismiss the second indictment; and (2)

ordered he pay restitution to CW that included medical expenses

paid by CW’s insurance provider. Borge repeated the arguments

raised in his motion to dismiss the second indictment. Borge

additionally argued the restitution order was not supported by

our restitution statute, HRS § 706-646.

On September 14, 2022, the ICA filed a summary disposition

order affirming the circuit court’s judgment. State v. Borge,

No. CAAP-XX-XXXXXXX (Haw. App. Sept. 14, 2022) (SDO). With

respect to the issues we address on certiorari, the ICA

concluded the prosecutor’s examination of Detective Clifton did

not violate Borge’s due process right to a fair and impartial

grand jury. Id. at 4-6. Citing State v. Rodrigues, 113 Hawai‘i

41, 147 P.3d 825 (2006), the ICA framed the prosecutor’s line of

inquiry “as detailing the actions Detective Clifton took the

night of the incident[.]” Borge, SDO at 5 (citing Rodrigues,

113 Hawai‘i at 49–50, 147 P.3d at 833-34). The ICA noted

Detective Clifton referenced Borge’s silence only once. Id.

The ICA reasoned that “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[,]” so

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the questioning did not constitute prosecutorial misconduct.

Id. at 6.

The ICA also addressed Borge’s assertion that the

restitution order did not comply with the statutory requirements

set out by HRS § 706-646. Id. at 12-14. The ICA cited its

Tuialii opinion for the proposition that 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[.]” Borge, SDO at 12 (citing

State v. Martin, No. CAAP-XX-XXXXXXX (Haw. App. Mar. 10, 2020)

(SDO) (citing Tuialii, 121 Hawaiʻi at 139-42, 214 P.3d at 1129-

32)). The ICA did not address Borge’s argument that the

insurance carrier was not a victim. See id. at 12-14.

D. Certiorari proceedings

On certiorari, Borge asserts the ICA erred in affirming the

circuit court’s (1) order denying motion to dismiss indictment;

and (2) restitution order. Borge repeats his arguments raised

below.

III. Standards of Review

A. Motion to dismiss indictment

“A motion to dismiss an indictment is . . . reviewed for an

abuse of discretion. The 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

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party litigant.” State v. Pitts, 146 Hawaiʻi 120, 129, 456 P.3d

484, 493 (2019) (citations omitted). “The burden of

establishing abuse of discretion is on appellant, and a strong

showing is required to establish it.” State v. Wong, 97 Hawaiʻi

512, 517, 40 P.3d 914, 919 (2002) (citation omitted).

“[D]ismissal of an indictment is required only in flagrant cases

in which the grand jury has been overreached or deceived in some

significant way.” 97 Hawaiʻi at 526, 40 P.3d at 928.

B. Constitutional violations

“Questions of constitutional law are reviewed under the

right/wrong standard.” Pitts, 146 Hawai‘i at 129, 456 P.3d at

493 (citation omitted).

C. Statutory interpretation

“The interpretation of a statute is a question of law.

Review is de novo, and the standard of review is right/wrong.”

Kimura v. Kamalo, 106 Hawai‘i 501, 507, 107 P.3d 430, 436 (2005)

(citation omitted). Our statutory interpretation is guided by

the following principles:

First, the fundamental starting point for statutory
interpretation is the language of the statute itself.
Second, where the statutory language is plain and
unambiguous, our sole duty is to give effect to its plain
and obvious meaning. Third, implicit in the task of
statutory construction is our foremost obligation to
ascertain and give effect to the intention of the
legislature, which is to be obtained primarily from the
language contained in the statute itself. Fourth, when
there is doubt, doubleness of meaning, or indistinctiveness
or uncertainty of an expression used in a statute, an
ambiguity exists. And fifth, in construing an ambiguous
statute, the meaning of the ambiguous words may be sought

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by examining the context, with which the ambiguous words,
phrases, and sentences may be compared, in order to
ascertain their true meaning.

Ito v. Invs. Equity Life Holding Co., 135 Hawaiʻi 49, 61, 346

P.3d 118, 130 (2015) (citation omitted).

IV. Discussion

A. The prosecutor violated Borge’s due process right to a
fair and impartial grand jury hearing by eliciting
testimony before the grand jury that Borge invoked his
right to remain silent

Article I, section 5 of the Constitution of the State of

Hawaiʻi provides that no person shall be deprived of liberty

without due process of law. We have recognized that due process

of law requires a fair and impartial grand jury hearing. State

v. Rodrigues, 63 Haw. 412, 417, 629 P.2d 1111, 1115 (1981).

Further, prosecutorial misconduct that undermines the

fundamental fairness and integrity of the grand jury process is

presumptively prejudicial. Wong, 97 Hawaiʻi at 517-18, 40 P.3d

at 919-20 (citations omitted). But “‘prosecutorial misconduct’

is a legal term of art that refers to any improper action

committed by a prosecutor, however harmless or unintentional.”

State v. Williams, 146 Hawai‘i 62, 72, 456 P.3d 135, 145 (2020)

(citation omitted).

We have also repeatedly recognized the importance of the

constitutional right against self-incrimination. See, e.g.,

State v. Mainaaupo, 117 Hawai‘i 235, 252, 178 P.3d 1, 18 (2008)

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(“There is nothing more basic and more fundamental than that the

accused has a constitutional right to remain silent, and the

exercise of this privilege may not be used against [them].”

(citations omitted)). This right is secured by article I,

section 10 of the Hawai‘i Constitution, which provides, “nor

shall any person be compelled in any criminal case to be a

witness against oneself.” The right against self-incrimination

is sacrosanct. See Brown v. Walker, 161 U.S. 591, 637 (1896)

(“The reprobation of compulsory self-incrimination is an

established doctrine of our civilized society.”); Havard v.

State, 94 So.3d 229, 237 (Miss. 2012) (“A defendant’s right

against self incrimination is not only sacrosanct, but is

commonly known across this land.”).

Hence, we have held the right prohibits the prosecution

from adducing evidence of or commenting on a person’s exercise

of that right. See State v. Beaudet-Close, 148 Hawaiʻi 66, 72-

73, 468 P.3d 80, 86-87 (2020). We have further held that a

prosecutor may not directly or indirectly imply guilt by

eliciting testimony during a question-and-answer exchange with a

witness at trial concerning a defendant’s exercise of their

right to remain silent. State v. Tsujimura, 140 Hawaiʻi 299,

315-18, 400 P.3d 500, 516-19 (2017). In those circumstances, we

have applied the following test: “whether the prosecutor

intended for the information elicited to imply the defendant’s

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guilt or whether the character of the information suggests to

the factfinder that the defendant’s prearrest silence may be

considered as inferential evidence of the defendant’s guilt.”

140 Hawai‘i at 315, 400 P.3d at 516 (citing Rodrigues, 113

Hawai‘i 41, 147 P.3d 825).

Before the second grand jury, the prosecutor asked

Detective Clifton “And you didn’t take any statement from Mr.

Borge?” Detective Clifton responded, “We attempted to question

him, but he requested to speak to an attorney.”

The prosecutor may not have known that Detective Clifton

would respond as he did. But he did know Borge had refused to

make a statement. If a grand juror had asked that question, the

prosecutor or grand jury counsel would have needed to inform the

jury that it was not a proper question. It is difficult to

understand why, in any grand jury proceeding, a prosecutor would

ask an officer whether he obtained the defendant’s statement

when the answer is “no.” Not only is such a question not needed

to obtain an indictment,11 absent unusual circumstances, the

question and answer would violate a defendant’s constitutional

right against self-incrimination.

Regarding unusual circumstances, the State, as well as the

ICA, opine that the question and answer were allowed by

11 During the first grand jury proceeding, the State did not ask Detective
Clifton whether Borge had given a statement before the jury returned the
attempted murder indictment.

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Rodrigues, 113 Hawaiʻi 41, 147 P.3d 825. See Borge, SDO at 5-6

(citing Rodrigues, 113 Hawaiʻi at 49–50, 147 P.3d at 833–34). In

Rodrigues, at trial, the prosecutor elicited testimony that the

defendant declined to agree to an audiotaped reiteration of his

post-arrest statement to a detective. 113 Hawai‘i at 49, 147

P.3d at 833. We held that, under the circumstances of that

case, the elicited statement was not an improper comment on the

defendant’s refusal to testify. 113 Hawai‘i at 49-50, 147 P.3d

at 833-34. We stated the prosecutor’s conduct was not improper

because the question was posed and the information was elicited

“as part of the prosecution’s effort to maximize the

reliability” of the detective’s recollections “and to explain

why the detective could only rely on his notes and not an

audiotape of the interview[.]” Id.

Rodrigues, however, concerned unusual circumstances in a

trial setting. The opinion does not affect a defendant’s

fundamental right against self-incrimination, nor the

prohibition against the State adducing evidence of or commenting

on a defendant’s exercise of that right. Rodrigues held that

the circumstances there did not rise to an improper comment on

the defendant’s refusal to testify, but its holding is limited

to the unusual facts of that case. Rodrigues does not stand for

the proposition that the State can routinely ask an officer

whether there was an attempt to take a defendant’s statement,

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knowing that the defendant had refused, under the guise of

establishing that an officer conducted a thorough investigation.

Further, Rodrigues also said the “line of inquiry designed

to establish the detective’s custom and practice regarding

accurately transcribing such statements, was unaccompanied by

any implication of guilt[.]” Id.; see also Tsujimura, 140

Hawaiʻi at 318, 400 P.3d at 519 (emphasizing that Rodrigues does

not permit the indirect use of a defendant’s silence to imply

guilt). Rodrigues also does not mean, however, that if the

State posits that testimony adduced regarding a defendant’s

exercise of the right against self-incrimination was not

intended to imply guilt, admission of or comment on such

testimony becomes permissible. Such a subjective standard would

vitiate a defendant’s right against self-incrimination.

Rather, we hold that in the grand jury context, the test is

whether the prosecutor intended for the information elicited to

imply probable cause exists or whether the character of the

information suggests to the jurors that the accused’s silence

may be considered as inferential evidence to find probable

cause. See Tsujimura, 140 Hawai‘i at 315, 400 P.3d at 516

(citing Rodrigues, 113 Hawai‘i 41, 147 P.3d 825). Here, whether

or not the State anticipated Detective Clifton’s response,12 the

12 The State argues the prosecutor’s inquiry did not constitute misconduct
because Detective Clifton’s testimony was non-responsive. Although the

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character of the evidence clearly indicates its presentation was

improper. The State adduced express evidence that Borge refused

to give a statement to Detective Clifton. Simply put, the

prosecutor should not have posed the question in the first

place.13

The question and answer constituted a flagrant violation of

Borge’s due process rights. Hence, we hold the circuit court

abused its discretion when it denied Borge’s motion to dismiss

this indictment.

B. The circuit court erred by ordering Borge to pay
$1,461,444.01 in restitution to CW

Borge also asserts the circuit court erred by ordering him

to pay CW $1,461,444.01 in restitution for medical bills from

prosecutor’s question technically called for a “yes” or “no” answer,
Detective Clifton’s answer was responsive. It addressed whether he took a
statement from Borge; indeed, the question itself implicated Borge’s right to
remain silent. We do not address possible scenarios in which a witness’s
answer is completely non-responsive.

13 The ICA also agreed with the State’s contention that the prosecutor
advisement to the grand jury to disregard Detective Clifton’s cured any
misconduct. Borge, SDO at 5-6. We have held a curative instruction can
sometimes “cure” prosecutorial misconduct. Mainaaupo, 117 Hawai‘i at 255, 178
P.3d at 21 (citation omitted). We note that a “cure” generally comes from a
judge’s instruction, not from a prosecutor. HRS § 612-16(d) (2016) provides
in relevant part:

[T]he [circuit] court shall give [the grand jurors] such
information as it may deem proper as to their duties and as
to the law pertaining to such cases as may come before
them. The court may further charge the grand jurors and
alternate grand jurors from time to time, as it may deem
necessary.

In any case, the “advisement” given here could not have constituted a
“cure” even if given by the circuit court. The advisement was merely to
disregard Detective Clifton’s testimony that Borge “was asking for an
attorney.” There was no instruction to disregard Borge’s refusal to give a
statement, i.e., his exercise of his right to remain silent.

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Maui Memorial. Borge asserts the ordered restitution does not

comply with HRS § 706-646.

HRS § 706-646 provides in relevant part:

(1) As used in this section, “victim” includes any of the
following:
(a) The direct victim of a crime including a business
entity, trust, or governmental entity;
. . . .
(c) A governmental entity that has reimbursed the
victim for losses arising as a result of the crime or
paid for medical care provided to the victim as a
result of the crime[.]
. . . .
(2) The court shall order the defendant to make restitution
for reasonable and verified losses suffered by the victim
or victims as a result of the defendant’s offense when
requested by the victim. . . .
(3) 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. . . . Restitution shall be a
dollar amount that is sufficient to reimburse any victim
fully for losses, including but not limited to:
(a) Full value of stolen or damaged property, as
determined by replacement costs of like property, or
the actual or estimated cost of repair, if repair is
possible;
(b) Medical expenses, which shall include mental
health treatment, counseling, and therapy;
(c) Funeral and burial expenses; and
(d) Lost earnings, which shall include paid leave.

(Emphases added.)

For the following reasons, we agree that the circuit

court’s restitution order was erroneous and must be vacated.

1. Under HRS § 706-646, restitution is only to be
awarded to a victim only for amounts requested

Subsection (1) of HRS § 706-646 allows for restitution to a

“victim.” Under HRS § 706-646(1)(a) and (c), “victim” means the

“direct victim of a crime” or a “governmental entity that has

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reimbursed the victim for losses arising as a result of the

crime or paid for medical care provided to the victim as a

result of the crime[.]” CW is obviously a direct victim under

subsection (1)(a). The record does not indicate, however, that

Maui Memorial and AlohaCare are governmental entities. In any

event, the restitution was awarded to CW.

In State v. Demello, 136 Hawai‘i 193, 196, 361 P.3d 420, 423

(2015), we held HRS § 706-646 allows for restitution of a

victim’s losses that are (1) reasonable, (2) verified, (3)

suffered as a result of the defendant’s conduct, and (4)

requested by the victim. The language in requirement (4)

expressly appears in subsection (2). See HRS § 706-646(2).

Here, the circuit court awarded $1,461,444.01 in

restitution to CW for medical bills from Maui Memorial. But CW

did not request restitution for these medical bills. Rather,

the record includes a restitution claim from CW’s mother

requesting $6,320.66 for her and her husband’s airfare, lodging,

ground transportation, food, and other expenses for their travel

back and forth from their North Dakota home due to CW’s injuries

and hospitalizations.14 Even if we assume CW’s parents had

requested restitution on behalf of CW, CW never requested

restitution for the medical bills that were awarded to him.

14 As noted, the request also included $100 for dental services and a $770
credit card charge from Maui Memorial, both of which the court officer did
not recommend based on “insufficient documentation.”

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Therefore, for this reason alone, the circuit court erred by

awarding the $1,461,444.01 in medical expenses as restitution to

CW.

2. The restitution awarded was not for CW’s reasonable
and verified losses

Borge also argues that restitution was erroneously ordered

because AlohaCare paid Maui Memorial for CW’s medical expenses.

In other words, he argues that payments made on behalf of a

direct victim by collateral sources are not “reasonable and

verified losses” of the direct victim.15

The circuit court awarded restitution for the total of

billings from Maui Memorial, including payments of at least

$204,174.49 by AlohaCare and $996,283.16 in adjustments or

write-offs.16

a. HRS § 706-646(3) allows for restitution only for
amounts sufficient to reimburse a victim fully
for losses

HRS § 706-646(3) expressly provides that “[r]estitution

shall be a dollar amount that is sufficient to reimburse any

victim fully for losses[.]” HRS § 706–646 does not define

“losses” other than the categories of “losses” listed in

subsection (3). Construing an early version of the original

15 We address this issue based on the “capable of repetition, yet evading
review” exception to the mootness doctrine. See State v. Tui, 138 Hawaiʻi
462, 468, 382 P.3d 274, 280 (2016).

16 See supra note 8.

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restitution statute, however, we stated, “[t]he total amount of

the restitution ordered by the trial court should be the actual

loss or damage incurred by the victim.” State v. Johnson, 68

Haw. 292, 295, 711 P.2d 1295, 1298 (1985) (emphasis added)

(citing HRS §§ 706–605(1)(e), 706–624(2)(i)).17

The plain language of HRS § 706-646(3) does not allow a

restitution award to include adjustments of bills written off by

medical providers. The victim never paid these amounts. Hence,

the victim does not need to be “reimbursed” for amounts never

paid.

By the same token, this plain language does not allow a

restitution award to a direct victim to include medical expenses

paid by an insurer or indemnifier. A direct victim has not paid

these amounts, so there is nothing to “reimburse.”

Amounts paid by a medical or casualty insurer differ from

the “lost wages” we allowed in Demello, which is now reflected

in section 706-646(3)(d), which provides restitution for “[l]ost

earnings, which shall include paid leave.” This is because a

victim should be “reimbursed” for paid leave the victim used due

to a defendant’s offense, which the victim otherwise would have

been able to take for other reasons.

17 In Johnson, we used the term “actual loss” to affirm a restitution
order in the amount of “$5,406.33 less $75.00.” 68 Haw. at 295-97, 711 P.2d
at 1298-99.

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b. The collateral source rule does not apply

The circuit court applied the ICA’s opinion in Tuialii, 121

Hawaiʻi 135, 214 P.3d 1125, when it ordered this restitution

award.

In Tuialii, the ICA held the trial court properly ordered

restitution to a direct victim of sums already paid by its

insurer. 121 Hawai‘i at 139, 214 P.3d at 1129. The ICA posited

that HRS § 706-646 does not call for reduction of restitution

due to insured victims. 121 Hawai‘i at 140, 214 P.3d at 1130.

The ICA opined the legislature “had two intended purposes when

adopting restitution”:

[I]n the criminal justice system, the victim of crime is
almost always neglected. By requiring the “convicted
person” to make restitution and reparation to the
victim, justice is served. In so doing, the criminal
repays not only “society” but the persons injured by the
criminal’s acts. There is a dual benefit to this concept:
The victim is repaid for his loss and the criminal may
develop a degree of self-respect and pride in knowing that
he or she has righted the wrong committed.

121 Hawai‘i at 141, 214 P.3d at 1131 (second emphasis added)

(quoting S. Stand. Comm. Rep. No. 789, in 1975 Senate Journal,

at 1132). The ICA concluded that requiring a defendant to pay

restitution, even for amounts indemnified by the direct victim’s

insurer, “furthers the rehabilitative purposes of HRS § 706-646

to the greatest extent possible.” 121 Hawai‘i at 142, 214 P.3d

at 1132.18

18 The ICA concluded a criminal court therefore “need not sort out
insurance indemnities, subrogation rights, and/or other potential civil law

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Justice Pollack’s dissent in Demello opined that, contrary

to Tuialii, “losses” do not include amounts covered by

collateral sources like insurance. See Demello, 136 Hawai‘i at

216 n.24, 361 P.3d at 443 n.24 (Pollack, J., dissenting) (“[A]n

order of restitution based on gross receipts, instead of net

income, would seemingly not represent [the victim’s] actual

loss.” (emphasis added)). We now address the issue and agree

that the collateral source rule does not apply to HRS § 706-646.

The collateral source rule is a common law doctrine. Bynum

v. Magno, 106 Hawai‘i 81, 86 n.11, 101 P.3d 1149, 1154 n.11

(2004) (citing Restatement (Second) of Torts § 920A cmt. d

(1979)).19 At common law, a civil defendant would be entitled to

a jury trial for amounts over $5,000 under article I, section 13

of the Hawai‘i Constitution. The Hawaiʻi Rules of Evidence

(“HRE”), HRS Chapter 626, would govern a trial determination of

whether medical expenses are reasonable and causally related to

implications before ordering a thief or other criminal to repay his victim
under the criminal restitution statute.” 121 Hawaiʻi at 142, 214 P.3d at
1132. This court rejected certiorari. State v. Tuialii, No. 29239 (Haw.
Jan. 11, 2010) (order), denying cert. to 121 Hawai‘i 135, 214 P.3d 1125 (App.
2009).

19 As explained in Bynum, in general, the collateral source rule is a tort
law concept that payments made to an injured person from an independent
source does not diminish recovery from the wrongdoer. 106 Hawai‘i at 86, 101
P.3d at 1154. The Restatement (Second) of Torts § 920A provides that, under
the collateral source rule, payments made to or benefits conferred on an
injured party from other sources are not credited against the tortfeasor’s
liability, “although they cover all or a part of the harm for which the
tortfeasor is liable.” Comment b to section 920A further explains that
although double compensation may result to the plaintiff, such a benefit
should redound to the injured party rather than “become a windfall” to the
party causing the injury. Restatement (Second) of Torts § 920A cmt. b.

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an incident. Pursuant to HRE Rule 1101(d)(3) (2016), however,

the Hawaiʻi Rules of Evidence do not even apply to sentencing

proceedings, including restitution determinations.

The restitution at issue here is simply not based on the

common law of torts; it is a statutorily authorized remedy under

the Hawaiʻi Penal Code. And the goal of restitution has

traditionally generally been to prevent injustice and unjust

enrichment, Small v. Badenhop, 67 Haw. 626, 636 & n.12 & 13, 701

P.2d 647, 654 & n.12 & 13 (1985), and not to award “damages” to

which the tort-action collateral source rule applies.

Hence, we hold the collateral source rule does not apply to

restitution under HRS § 706-646. Application of the rule would

be inconsistent with the plain language of subsection (3), which

only allows for a victim to be “reimbursed” for actual losses.

Hence, the ICA’s holding in Tuialii that a restitution

award can include sums paid by an insurer to a victim is

overruled.

c. Even if HRS § 706-646 was ambiguous, the rule of
lenity would now allow the restitution awarded
in this case

Finally, if a statute is ambiguous, and the legislative

history does not provide sufficient guidance, we follow

the rule of lenity. The rule of lenity provides that where a

criminal statute is ambiguous, it “must be strictly construed

against the government and in favor of the accused.” State v.

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Guyton, 135 Hawaiʻi 372, 380, 351 P.3d 1138, 1146 (2015)

(citations omitted); see also Bittner v. United States, 143 S.

Ct. 713, 724 (2023) (“Under the rule of lenity, this Court has

long held, statutes imposing penalties are to be ‘construed

strictly’ against the government and in favor of individuals.”

(citation omitted)).

HRS § 706-646 is not ambiguous with respect to the

restitution issues addressed in this opinion. But, even if it

was, the rule of lenity would mandate that we interpret the

statute in Borge’s favor based on the reasons already explained.

For all these reasons, the circuit court erred by awarding

$1,461,444.01 in restitution to CW.

V. Conclusion

Based on the reasoning above, we vacate the circuit court’s

September 3, 2020 findings of fact, conclusions of law, and

order denying motion to dismiss indictment, June 7, 2021

judgment of conviction and sentence, and June 17, 2021 free-

standing order of restitution, as well as the ICA’s October 19,

2022 judgment on appeal, and we remand to the circuit court for

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dismissal of the indictment and further proceedings consistent

with this opinion.

Hayden Aluli /s/ Mark E. Recktenwald
for petitioner
/s/ Paula A. Nakayama
Renee Ishikawa Delizo
for respondent /s/ Sabrina S. McKenna

/s/ Michael D. Wilson

/s/ Todd W. Eddins

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