State v. Kalua. ( 2019 )

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Electronically Filed
Supreme Court
SCWC-XX-XXXXXXX
15-JAN-2019
08:15 AM
IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
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________________________________________________________________
STATE OF HAWAIʻI,
Respondent/Plaintiff-Appellant,
vs.
MANAIAKALANI N.K. KALUA,
Petitioner/Defendant-Appellee.
________________________________________________________________
SCWC-XX-XXXXXXX
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-XX-XXXXXXX; 3DTC-11-040282)
JANUARY 15, 2019
BY McKENNA, POLLACK, AND WILSON, JJ., WITH RECKTENWALD, C.J.,
DISSENTING, WITH WHOM NAKAYAMA, J., JOINS
OPINION OF THE COURT BY WILSON, J.
Petitioner/Defendant-Appellee Manaiakalani N.K. Kalua
(Kalua) was concurrently cited for speeding and excessive
speeding offenses while driving through two separate speed
zones. This case addresses the issue whether the Intermediate
Court of Appeals (ICA) erred in holding that the entry of
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judgment on Kalua’s noncriminal speeding infraction failed to
bar the Respondent/Plaintiff-Appellant State of Hawaiʻi (State)
from prosecuting him for the crime of excessive speeding. Kalua
contends that his prosecution for excessive speeding is barred
by Hawaiʻi Revised Statutes (HRS) §§ 701-109(1)1 and (2)2 (2007)
and by the double jeopardy clauses of the United States and
Hawaiʻi Constitutions.3 We hold that double jeopardy is
1
HRS § 701-109(1) provides:
When the same conduct of a defendant may establish an
element of more than one offense, the defendant may be
prosecuted for each offense of which such conduct is an
element. The defendant may not, however, be convicted of
more than one offense if:
(a) One offense is included in the other, as defined in
subsection (4) of this section;
(b) One offense consists only of a conspiracy or
solicitation to commit the other;
(c) Inconsistent findings of fact are required to
establish the commission of the offenses;
(d) The offenses differ only in that one is defined to
prohibit a designated kind of conduct generally and
the other to prohibit a specific instance of such
conduct; or
(e) The offense is defined as a continuing course of
conduct and the defendant’s course of conduct was
uninterrupted, unless the law provides that specific
periods of conduct constitute separate offenses.
2
HRS § 701-109(2) provides in relevant part:
[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
The fifth amendment to the U.S. Constitution guarantees that
“[n]o person shall . . . be subject for the same offence to be twice put in
jeopardy of life or limb[.]” U.S. Const. amend. V. Likewise, the Hawaiʻi
(. . . continued)
2
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inapplicable to the civil offense of speeding under its current
statutory framework. We also hold Kalua is subject to
prosecution for both excessive speeding and speeding; however,
if on remand the District Court of the Third Circuit (district
court) finds at trial that the excessive speeding charge arises
from the same conduct as the speeding infraction, the “lesser
included offense” provision of HRS § 701-109(1)(a) will preclude
his conviction for excessive speeding. We thus affirm the ICA’s
judgment vacating the district court’s dismissal of the
excessive speeding offense, but for the reasons stated herein,
and the case is remanded to the district court for further
proceedings.
I. Background
A. Stipulated Facts
On September 14, 2011, Kalua was cited for speeding,
in violation of HRS § 291C-102,4 and for excessive speeding, in
violation of HRS § 291C-105.5 On November 28, 2011, Kalua paid
(continued . . .)
Constitution provides that “[n]o person shall . . . be subject for the same
offense to be twice put in jeopardy[.]” Haw. Const. art. 1, § 10.
4
HRS § 291C-102 (2007) provides in relevant part that “[a] person
violates this section if the person drives . . . [a] motor vehicle at a speed
greater than the maximum speed limit other than provided in section 291C-
105.” HRS § 291C-102(a)(1).
5
HRS § 291C-105 (2007) provides in relevant part, as it did at the
time of the offense, that “[n]o person shall drive a motor vehicle at a speed
(. . . continued)
3
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the $137 fine for the speeding infraction after a default
judgment was entered against him in the district court. On
January 5, 2012, in the district court, Kalua pled not guilty to
the charge of excessive speeding. Kalua subsequently filed a
motion to dismiss the excessive speeding charge pursuant to HRS
§ 701-109(2).
At the April 19, 2012 hearing6 on the motion to dismiss
the excessive speeding charge, the parties agreed to stipulate
to the following relevant facts: (1) the citing police officer,
Thomas Koyanagi, used radar to measure Kalua’s speed at a
“steady speed of 73 miles per hour while entering a 45 miles per
hour zone”; (2) Officer Koyanagi observed Kalua pass two 40
miles per hour signs; and (3) Officer Koyanagi subsequently
stopped Kalua and cited him for driving 71 miles per hour in a
55 miles per hour zone in violation of HRS § 291C-102(a)(1)7 and
for driving 73 miles per hour in a 40 miles per hour zone in
(continued . . .)
exceeding . . . [t]he applicable state or county speed limit by thirty miles
per hour or more.” HRS § 291C-105(a)(1). The statute further provides, as
it did at the time of the offense, “[a]ny person who violates [HRS § 291C-
105] shall be guilty of a petty misdemeanor[.]” HRS § 291C-105(c).
6
The Honorable Melvin Fujino presided.
7
The district court’s finding of fact No. 3 incorrectly states
that Kalua was cited for traveling 73 miles per hour in a 55 miles per hour
zone. DC Dkt. 9/26/12 “Amended Order Granting Deffendant’s [sic] Motion to
Dismiss Excessive Speeding Charge Under HRS § 701-109(2)” at 2.
4
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violation of HRS § 291C-105(a)(1). Additionally, the parties
agreed that “at no time was there a break in the occurrence from
the time that . . . Officer Koyanagi saw [Kalua] to the time
[Kalua] stopped and was cited. And he was issued both tickets
upon that stop.”
The district court granted Kalua’s motion to dismiss
the excessive speeding charge. The court determined that the
speeding infraction was a lesser included offense of excessive
speeding. Because Kalua had paid the fine for the speeding
infraction, the court reasoned that prosecuting him for the
excessive speeding charge would violate HRS § 701-109(1)(a),
which prohibits the State from convicting a defendant “of more
than one offense” if one offense “is included in the other.”
The court thus found that HRS § 701-109(1)(a) barred the State
from prosecuting Kalua on the excessive speeding charge. The
court further found that the double jeopardy clause barred the
State from prosecuting Kalua on the excessive speeding charge.
The district court’s order granting Kalua’s motion to
dismiss the excessive speeding charge was filed on May 21, 2012,
and later amended on September 26, 2012. In the amended order,
the district court cited HRS § 701-109(2) in concluding that the
State was barred from prosecuting Kalua on the excessive
speeding charge. The district court explained that Kalua’s
5
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conduct consisted of “the operation of his vehicle at a speed in
excess of the applicable speed limit,” and concluded that his
conduct “constituted a single episode.” The court therefore
concluded that prosecution of the excessive speeding offense was
barred because HRS § 701-109(2) bars separate trials for
offenses based on the same conduct or arising from the same
episode.
B. ICA Proceedings
In its opinion, the ICA vacated the district court’s
order granting Kalua’s motion to dismiss and remanded the case
for proceedings consistent with its opinion. State v. Kalua,
136 Hawaiʻi 181, 189, 358 P.3d 750, 758 (App. 2015). The ICA
held that the prior adjudication of Kalua’s speeding infraction
fails to bar the State from subsequently prosecuting Kalua for
the crime of excessive speeding. Id. at 184-86, 358 P.3d at
753-55. In the ICA’s view, HRS § 291D-3(d) (2007) “eliminates
any bar to criminal prosecution that could otherwise arise from
the separate adjudication of non-criminal traffic
infractions[,]” and “permit[s] prosecution of a criminal offense
where the adjudicated traffic infraction is a lesser included
traffic infraction of the charged crime.” Id. at 186, 358 P.3d
at 755. The ICA also concluded that double jeopardy did not bar
subsequent prosecution for excessive speeding because double
6
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jeopardy only prohibits successive criminal prosecutions, and
therefore did not apply to the prior civil adjudication for the
speeding infraction. Id. at 187-89, 358 P.3d at 756-58.
II. Standards of Review
A. Constitutional Law
“This court reviews questions of constitutional law de
novo under the right/wrong standard and thus exercises its own
independent judgment based on the facts of the case.” State v.
Curtis, 139 Hawaiʻi 486, 492, 394 P.3d 716, 722 (2017) (internal
quotation marks and citation omitted).
B. Statutory Interpretation
Statutory interpretation is “a question of law
reviewable de novo.” State v. Levi, 102 Hawaiʻi 282, 285, 75
P.3d 1173, 1176 (2003) (internal quotation marks and citations
omitted). Statutory construction is guided by established
rules:
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.
State v. Bayly, 118 Hawaiʻi 1, 6, 185 P.3d 186, 191 (2008)
(citation omitted).
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C. Conclusions of Law
“A trial court’s conclusions of law are reviewed de
novo under the right/wrong standard.” State v. Adler, 108
Hawaiʻi 169, 174, 118 P.3d 652, 657 (2005) (citation omitted).
III. Discussion
Kalua raises a single issue: does the prior
adjudication of his civil traffic offense of speeding bar the
State from subsequently prosecuting Kalua for the criminal
traffic offense of excessive speeding? See HRS § 291C-102
(penalizing speeding); HRS § 291C-105 (penalizing excessive
speeding).
Kalua contends the prior adjudication under HRS §
291C-102 prevents subsequent prosecution for excessive speeding
under HRS § 291C-105, and advances three arguments in support of
his contention. First, he argues that the State cannot
prosecute him on the excessive speeding charge because HRS §
701-109(1)(a) bars convicting a defendant of multiple offenses
where one offense is included in the other. Having been
convicted of the lesser offense of speeding, he argues, he
cannot later be prosecuted for the greater offense of excessive
speeding as well, given that both were committed in the same
course of conduct. Second, Kalua argues that HRS § 701-109(2)
imposes a compulsory joinder requirement barring successive
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trials for multiple offenses arising from the same conduct. In
other words, he argues the State was required to prosecute both
offenses together. Under this analysis, Kalua contends that
because the speeding charge had already been adjudicated, the
State was barred under HRS § 701-109(2) from prosecuting him in
a later trial on the excessive speeding charge. Third, Kalua
argues that the double jeopardy doctrine bars the State from
prosecuting him for both speeding and excessive speeding.
The State contends that it may prosecute Kalua for
excessive speeding even though the speeding infraction he
committed during the same course of conduct has been
adjudicated. According to the State, HRS § 291D-3(d) expressly
prevents HRS § 701-109 from barring subsequent prosecution of a
criminal traffic offense, such as excessive speeding, when a
prior civil traffic offense committed during the same course of
conduct has already been adjudicated. Second, as to the
compulsory joinder requirement of HRS § 701-109(2), the State
argues that the statute applies only if both offenses are known
to the prosecuting officer at the time the first trial begins,
and that was not the case here. Finally, the State stresses,
double jeopardy applies only to successive criminal trials, not
to a civil adjudication followed by a criminal trial.
9
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We begin by examining the double jeopardy doctrine and
conclude it is not applicable. We then consider the State’s
arguments that HRS § 291D-3(d) precludes traffic offenses from
the prohibitions contained in HRS § 701-109 regarding separate
prosecutions and multiple convictions. We hold that HRS § 291D-
3(d) precludes the compulsory joinder requirement contained in
HRS § 701-109(2) in the context of traffic infractions.
Accordingly, Kalua can be prosecuted separately for speeding and
excessive speeding. However, we also conclude that HRS § 291D-
3(d) does not preclude applicability of HRS § 701-109 regarding
lesser included offenses.8 Thus, Kalua cannot be convicted of
speeding and excessive speeding if both offenses involve the
same conduct pursuant to HRS § 701-109(1), as speeding is a
lesser included offense of excessive speeding pursuant to HRS §§
701-109(1)(a) and 701-109(4).
A. The Double Jeopardy Clause Does Not Bar Kalua’s
Prosecution for Excessive Speeding
“Double jeopardy protects individuals against: (1) a
second prosecution for the same offense after acquittal; (2) a
second prosecution for the same offense after conviction; and
(3) multiple punishments for the same offense.” State v. Higa,
79 Hawaiʻi 1, 5, 897 P.2d 928, 932 (1995). Kalua argues that the
8
HRS §§ 701-109(1)(a) and 701-109(4).
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double jeopardy clauses of the U.S. and Hawaiʻi Constitutions bar
the State from prosecuting the excessive speeding charge. The
ICA rejected Kalua’s argument by concluding that because the
double jeopardy clause only bars successive criminal
prosecutions and multiple criminal punishments, the prior
adjudication of Kalua’s noncriminal speeding infraction did not
act as a bar to the State’s subsequent prosecution for excessive
speeding. Kalua, 136 Hawaiʻi at 186–89, 358 P.3d at 755–58. We
agree.
In Tauese v. State, Dep’t of Labor & Indus. Relations,
113 Hawaiʻi 1, 31, 147 P.3d 785, 815 (2006), we adopted “a two-
part inquiry for determining whether a statutorily defined
penalty is civil or criminal:” (1) whether the legislature
intended the penalty to be civil or criminal and, if so, (2)
“whether the statutory scheme was so punitive either in purpose
or effect as to negate that intention.” (Citation omitted).
Taken together, these factors clearly support the conclusion
that the sanctions imposed for speeding are a civil remedy
rather than a criminal punishment. See id. at 31-32, 147 P.3d
at 815-16.
With respect to (1), whether the legislature intended
the penalty to be civil or criminal, here, the punishment for
speeding is purely monetary: maximum fines of up to $200 for a
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first violation, $300 for a second violation within one year,
and $500 for a third violation within one year, or community
service in lieu of a monetary assessment at the court’s
discretion based on inability to pay. See HRS §§ 291D-9 (2007),
291D-10 (2007), and 291C-161 (2007 & Supp. 2008).9 Thus, the
sanctions imposed for Kalua’s speeding violation did not
constitute a criminal punishment. Accordingly, criminal
prosecution for Kalua’s excessive speeding charge is not barred
under the double jeopardy clause by the default judgment entered
on his noncriminal speeding offense.
B. HRS § 291D-3(d) Precludes Applicability of the
Compulsory Joinder Provision of HRS § 701–109(2) in the Context
of Traffic Offenses, but Does Not Provide an Exception to the
Provision in HRS § 701–109(1)
Because we have concluded that Kalua’s potential
prosecution for excessive speeding is not barred by the double
jeopardy clauses of the U.S. or Hawaiʻi Constitutions, we turn to
the statutory provisions relevant to whether he can be
prosecuted and convicted for excessive speeding as well as
speeding. Kalua argues that the State cannot prosecute him on
the excessive speeding charge because HRS § 701-109(1)(a) bars
convicting a defendant of multiple offenses where one offense is
9
Our discussion in Section III.B below regarding the
decriminalization of traffic infractions through Chapter 291D further makes
clear that the legislature intended that the penalties for ordinary speeding
under HRS § 291C-102 be civil in nature.
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included in the other. Having been convicted of the lesser
offense of speeding, he argues, he cannot later be prosecuted
for the greater offense of excessive speeding as well, given
that both were committed in the same course of conduct. Second,
he argues that HRS § 701-109(2) imposes a compulsory joinder
requirement barring successive trials for multiple offenses
arising from a continuing course of conduct.
The State contends that it may prosecute Kalua for
excessive speeding even if the speeding infraction he committed
is a lesser included offense committed during the same course of
conduct. According to the State, HRS § 291D-3(d) expressly
prevents HRS § 701-109 from barring subsequent prosecution of a
criminal traffic offense, such as excessive speeding, when a
prior civil traffic offense committed during the same course of
conduct has already been adjudicated. Thus, while HRS § 701-
109(1)(a) forbids convicting a defendant of both a lesser
included offense and the greater offense, the State argues HRS §
291D-3(d) creates an exception to that rule. Second, the State
rejects Kalua’s argument that prosecuting him for excessive
speeding would violate the compulsory joinder requirement of HRS
§ 701-109(2); the State contends that HRS § 291D-3(d) precludes
the operation of all provisions in HRS § 701-109 in the traffic
offense context, including the compulsory joinder requirement.
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Plainly, the arguments advanced by both the State and
Kalua turn on the meanings of HRS §§ 701-109 and 291D-3(d) and
how they interrelate. We turn to the State’s argument that HRS
§ 291D-3(d)10—precluding the compulsory joinder provision of HRS
§ 701-109(2)—also precludes application of HRS § 701-10911
10
HRS § 291D-3(d) states that “[i]n no event shall section 701-109
preclude prosecution for a related criminal offense where a traffic
infraction committed in the same course of conduct has been adjudicated
pursuant to this chapter.” (Emphasis added).
11
HRS § 701-109 provides:
(1) When the same conduct of a defendant may
establish an element of more than one offense, the
defendant may be prosecuted for each offense of which such
conduct is an element. The defendant may not, however, be
convicted of more than one offense if:
(a) One offense is included in the other, as defined in
subsection (4) of this section;
(b) One offense consists only of a conspiracy or
solicitation to commit the other;
(c) Inconsistent findings of fact are required to
establish the commission of the offenses;
(d) The offenses differ only in that one is defined to
prohibit a designated kind of conduct generally and
the other to prohibit a specific instance of such
conduct; or
(e) The offense is defined as a continuing course of
conduct and the defendant’s course of conduct was
uninterrupted, unless the law provides that specific
periods of conduct constitute separate offenses.
(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
(. . . continued)
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barring multiple convictions “[w]hen the same conduct of a
defendant may establish an element of more than one offense[.]”
HRS § 701-109(1). As we explain more fully below, HRS § 291D-
3(d) preempts only HRS § 701-109(2) relating to compulsory
joinder, not, inter alia, HRS § 701-109(1)(a) barring conviction
for a greater offense as well as its lesser offense.
HRS § 701-109(2), the “compulsory joinder” provision,
generally prevents the State from exposing a defendant to
separate trials for separate offenses when the multiple charges
arise from the same conduct or episode. It is the only
provision of HRS § 701-109 that prevents multiple prosecutions
“[w]hen the same conduct of a defendant may establish an element
of more than one offense[.]” HRS § 701-109(1). Under HRS §
(continued . . .)
be tried separately, if it is satisfied that justice so
requires.
(4) A defendant may be convicted of an offense
included in an offense charged in the indictment or the
information. An offense is so included when:
(a) It is established by proof of the same or less than
all the facts required to establish the commission of
the offense charged;
(b) It consists of an attempt to commit the offense
charged or to commit an offense otherwise included
therein; or
(c) It differs from the offense charged only in the
respect that a less serious injury or risk of injury
to the same person, property, or public interest or a
different state of mind indicating lesser degree of
culpability suffices to establish its commission.
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701-109(2), the separate offenses must generally be joined or
consolidated in a single trial.
(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.[12]
See State v. Akau, 118 Hawaiʻi 44, 46, 185 P.3d 229, 231 (2008)
(referring to HRS § 701–109(2) as a “compulsory joinder” statute
and stating that it requires joinder of all criminal offenses
“based on the same conduct or arising from the same episode”);
State v. Keliiheleua, 105 Hawaiʻi 174, 181, 95 P.3d 605, 612
(2004) (noting that HRS § 701–109(2) reflects “a policy that all
charges that arise under one episode be consolidated in one
trial so that a defendant need not face the expense and
uncertainties of multiple trials based on essentially the same
episode” (citation omitted)); Model Penal Code and Commentaries
§ 1.07 cmt. at 116 (Am. Law Inst. 1962) (“Subsection (2) is
designed to prevent the state from subjecting a defendant to
separate trials based on essentially the same conduct. It
requires the prosecution to join in one trial all offenses based
12
As its opening clause indicates, the compulsory joinder provision
of HRS § 701-109(2) will not apply if a court finds that justice requires
separate trials. “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.” HRS § 701-109(3).
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on the same conduct or arising from the same criminal episode.
The penalty for failure to do so is a bar to further prosecution
. . . .”).
In 1993, the legislature made an exception to the
compulsory joinder provision of HRS § 701-109(2) to provide for
a bifurcated (or two-track) system featuring separate procedural
tracks for processing civil and criminal traffic offenses.
In response to a request by the legislature, the judiciary
prepared a report in 1987 that recommended, among other
things, further decriminalization of traffic offenses,
elimination of most traffic arraignments, disposition of
uncontested violations by mail, and informal hearings where
the violation or the proposed penalty is questioned. The
legislature finds that further decriminalization of certain
traffic offenses and streamlining of the handling of those
traffic cases will achieve a more expeditious system for
the judicial processing of traffic infractions.
HRS § 291D-1 (2007). See also 1993 Haw. Sess. Laws Act 214, § 1
at 365 (“The purpose of this Act is to improve the system by
which traffic offenses presently are being processed in order to
dispose expeditiously of these cases and thereby achieve
efficient and effective use of limited judicial and law
enforcement resources.”). Under the then-new system, civil
traffic offenses could be processed on one track, while the
generally more complex criminal traffic offenses could be
processed on a different track, thereby creating a
“streamlin[ed]” and “more expeditious system for the judicial
processing of traffic infractions.” HRS § 291D-1.
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HRS § 291D-3(d)13 was therefore a necessary piece of
the two-track structure. HRS § 291D-3(d) negates the Penal
Code’s general compulsory joinder provision (HRS § 701-109(2))
in the specific context of civil and criminal traffic offenses
committed in the same course of conduct. That, in turn, allows
the successive prosecutions envisioned by the two-track system
for processing a civil traffic offense and a criminal traffic
offense arising out of the same course of conduct.14
Thus, the ICA correctly concluded that HRS § 291D-3(d)
“eliminates any bar to criminal prosecution that could otherwise
arise from the application of HRS § 701–109(2),” that is, from
the application of HRS § 701–109’s compulsory joinder provision.
Kalua, 136 Hawaiʻi at 186, 358 P.3d at 755 (emphasis added); see
also HRS § 701–109(2) (requiring that defendants “not be subject
to separate trials for multiple offenses based on the same
conduct or arising from the same episode if such offenses are
13
HRS § 291D-3(d) provides that “[i]n no event shall section 701-
109 preclude prosecution for a related criminal offense where a traffic
infraction committed in the same course of conduct has been adjudicated
pursuant to this chapter.”
14
The two-track system allows separate processing of a civil
traffic offense and a criminal traffic offense arising out of the same course
of conduct. But consistent with its underlying purposes of streamlining and
efficiency, the two-track system also allows a single trial of both types of
offenses where they arise out of the same course of conduct. HRS § 291D-2
(2007) (authorizing a “[c]oncurrent trial . . . in which the defendant is
tried simultaneously in a civil case for any charged traffic infraction and
in a criminal case for any related criminal offense, with trials to be held
in one court on the same date and at the same time”). See also HRS § 291D-
13(d) (2007).
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known to the appropriate prosecuting officer at the time of the
commencement of the first trial[,]” except under certain
circumstances).
While we agree that HRS § 291D-3(d) specifically
precludes application of the compulsory joinder provisions of
HRS § 701–109(2), HRS § 291D-3(d) does not have a generally
preclusive effect on every provision of HRS § 701–109.
Specifically, HRS § 291D-3(d) does not have a preclusive effect
on the provisions of HRS § 701–109(1), including those governing
lesser included offenses.
HRS § 291D-3(d), by its terms, applies only to HRS §
701–109(2). “In no event shall section 701-109 preclude
prosecution for a related criminal offense where a traffic
infraction committed in the same course of conduct has been
adjudicated pursuant to this chapter.” HRS § 291D-3(d)
(emphases added). The other provisions of HRS § 701–109, in
contrast, apply by their terms not to prosecutions but to
convictions: “The defendant may not . . . be convicted of more
than one offense if: (a) [o]ne offense is included in the other
. . . .” HRS § 701–109(1)(a) (emphasis added). As we stated in
State v. Yokota, 143 Hawaiʻi 200, 207, 426 P.3d 424, 431 (2018),
“the Legislature explicitly provided that a defendant may be
charged with multiple offenses arising from the same conduct
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even when he or she cannot be convicted of more than one
offense.” (Emphases in original) (citing HRS § 701-109(1)).
Stated differently, HRS § 291D-3(d) authorizes civil
traffic offenses15 to be adjudicated prior to criminal traffic
15
The dissent contends that because the 1993 amendment to the
Traffic Code described speeding as a non-criminal “infraction,” speeding is
no longer an “offense”: “One key element of that effort [the 1993
legislation establishing the two-track system] was to establish a new
category of liability called traffic ‘infractions’ and to explicitly provide
that ‘no traffic infraction shall be classified as a criminal offense.’”
Dissent at 4. Under this analysis, speeding infractions cannot be subject to
HRS § 701-109 because § 701-109 only pertains to “offenses.” With respect,
this contention is mistaken. Though speeding is an “infraction,” it remains
a “decriminalized traffic offense.”
In referring to non-criminal traffic offenses as “infractions,”
the legislature in 1993 only created a category within the already existing
class of “violations,” which themselves are a class of “offenses,” namely,
non-criminal offenses. HRS § 291D-2 (“‘Traffic infraction’ means all
violations of statutes, ordinances, or rules relating to traffic movement and
control . . . for which the prescribed penalties do not include imprisonment
and that are not otherwise specifically excluded from coverage of this
chapter.”).
An “infraction” not only “means all violations of statutes,
ordinances, or rules relating to traffic movement and control[.]” Id. Under
HRS § 701-107—titled “Grades and classes of offenses”—speeding is included
within a class of non-criminal “offenses,” termed “a violation.” A
“violation” is defined by the Code in two ways. A violation is either any
offense specifically designated as a violation by the Penal Code (or any
other Hawaiʻi statute, such as the Traffic Code) or any offense punishable
only by “a fine, or fine and forfeiture or other civil penalty[.]” HRS §
701-107(5) (emphasis added) (“A violation does not constitute a crime[.]”);
see also HRS § 701-107 cmt. (“Subsection (5) creates a class of non-criminal
offenses, called violations.” (emphasis added)).
Here, ordinary speeding satisfies both prongs of the Penal Code’s
definition of a “violation,” and a “non-criminal offense[].” See HRS § 701-
107(5). First, the ordinary speeding statute provides for no other sentence
than a fine. HRS § 291C-102(a)(1); HRS § 291D-9(a)-(b). Second, speeding is
expressly defined as a violation by “another statute of this State,” namely,
the Traffic Code. See HRS §§ 291C-102, 291C-161(a) (“It is a violation for
any person to violate any of the provisions of this chapter, except as
otherwise specified in subsections (c) and (d) and unless the violation is by
other law of this State declared to be a felony, misdemeanor, or petty
misdemeanor.” (emphasis added)). Thus speeding is an infraction that
constitutes both a violation and a non-criminal offense. As a noncriminal
(. . . continued)
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offenses arising from the same course of conduct without thereby
automatically precluding a later trial for the criminal offense
occurring in the same course of conduct. But HRS § 291D-3(d)
does not preclude the operation of HRS § 701-109(1)’s provision
prohibiting convicting a defendant of more than one offense,
such as when one offense is the lesser included offense of a
greater offense. See HRS §§ 701-109(1)(a), 701-109(4).
C. Speeding Is a Lesser Included Offense of Excessive
Speeding
We have previously ruled that speeding is a lesser
included offense of excessive speeding in State v. Fitzwater,
122 Hawaiʻi 354, 357, 378, 227 P.3d 520, 523, 544 (2010).
In Fitzwater, the defendant was charged with driving
70 miles per hour in a 35 miles per hour zone, “which was 5
miles per hour greater than the threshold established by HRS §
291C–105.” Id. at 377, 227 P.3d at 543. Because excessive
speeding is a criminal offense, the State was required to prove
the defendant’s speed beyond a reasonable doubt. We concluded
that the State failed to meet that burden. Id. at 378, 227 P.3d
at 544. The defendant’s speed had been determined by the
officer pacing the defendant with his vehicle, and the defendant
(continued . . .)
“offense,” it is subject to the provisions of HRS § 701-109 other than HRS §
701-109(2).
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challenged the accuracy of the officer’s speedometer. The trial
court had admitted the “speed check” card for the vehicle
ostensibly showing the accuracy of the speedometer. We held
that the State had failed to establish sufficient foundation to
admit the speed check card as a business record. Id. at 374-77,
227 P.3d at 540-43. Because the speed check card lacked
adequate indicia of reliability regarding calibration testing,
the card had not been properly authenticated as a business
record under Hawaiʻi Rules of Evidence Rule 803(b)(6). Id. at
369-70, 375, 227 P.3d at 535-36, 541.
Without the speed check card, there was insufficient
evidence to prove beyond a reasonable doubt that the defendant’s
speed exceeded the threshold of 30 miles per hour over the
posted speed limit required by HRS § 291C-105(a)(1), the
excessive speeding statute. Id. at 377-78, 227 P.3d at 543-44.
While the officer testified that the defendant had been driving
70 miles per hour in a 35 miles per hour zone, as measured by
the officer’s speedometer, we concluded that the officer’s
testimony alone was not sufficient, “given the relatively small
margin of error of 5 miles per hour.” Id. at 378, 227 P.3d at
544. However, the defendant himself had admitted in his
testimony to exceeding the posted speed limit. Id. We
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therefore remanded for entry of a judgment that the defendant
had violated HRS § 291C-102(a)(1). Id.
We explained that where an appellate court determines
evidence is insufficient “to support a conviction of a greater
offense but sufficient to support a conviction of a lesser
included offense, the court may remand for entry of judgment of
conviction on the lesser included offense[.]” Id. (internal
quotation marks omitted) (quoting State v. Line, 121 Hawaiʻi 74,
90, 214 P.3d 613, 629 (2009) (citation omitted)). The point of
our remand was to enter judgment on speeding as a lesser
included offense of excessive speeding pursuant to HRS § 701-
109(4)(a). Our remand was consistent with HRS § 701-109(4)(a),
which states, among other grounds, that one offense is the
lesser included of another when the first offense “is
established by proof of the same or less than all the facts
required to establish the commission of the” other offense. If
Kalua engaged in the same conduct for both speeding and
excessive speeding, he cannot be convicted of excessive speeding
because, pursuant to HRS § 701-109(4)(a), he has been convicted
of the lesser included offense of speeding.
The dissent disagrees that Fitzwater held speeding to
be an included offense of excessive speeding, contending instead
that Fitzwater merely quoted a sentence from Line for the
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relevant general rule, and introduced that quotation with a
“cf.” signal, which the dissent regards as incapable of
supporting a holding. Dissent at 5-6 (quoting Fitzwater, 121
Hawaiʻi at 90, 214 P.3d at 629 for the proposition quoted in
Line, 121 Hawaiʻi at 90, 214 P.3d at 629 that “[i]t is
established that if an appellate court determines that the
evidence presented at trial was insufficient to support a
conviction of a greater offense but sufficient to support a
conviction of a lesser included offense, the court may remand
for entry of judgment of conviction on the lesser included
offense” (internal quotation marks omitted)). However, contrary
to the dissent’s suggestion, that sentence was not a mere aside.
It was essential to the disposition of the case. See Black’s
Law Dictionary 106 (10th ed. 2014) (defining “holding” as “[a]
court’s determination of a matter of law pivotal to its
decision”). This court specifically stated that, on remand,
judgment was to be entered against the defendant on the “non-
criminal traffic infraction” of speeding as an included offense
of excessive speeding.16 The dissent also rejects this court’s
treatment in Fitzwater of speeding as an included offense based
16
“Accordingly, we remand for entry of a judgment that [the
defendant] violated HRS 291C-102(a)(1), in accordance with the applicable
statutes governing non-criminal traffic infractions.” Fitzwater, 122 Hawaiʻi
at 378, 227 P.3d at 544.
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on the incorrect proposition that a civil infraction cannot
result in a conviction. As noted, this assumption is directly
contrary to the language of Fitzwater remanding with
instructions that the defendant be found to have committed the
civil infraction of speeding as a lesser included offense of
excessive speeding. The dissent’s position also directly
contradicts the penal code’s definition of an offense in HRS §
701-107(5) (1993) that provides for conviction of civil
offenses: “[A] violation does not constitute a crime, and
conviction of a violation shall not give rise to any civil
disability based on conviction of a criminal offense.” Thus,
the language of HRS § 291D-3(c)(1) establishing that a civil
judgment arises from the commission of speeding clearly does not
preclude its status as an included offense for purposes of HRS §
701-109(4).
In order for the statutory protections against being
convicted of both a greater offense and its lesser included
offense to apply in a given case, the offenses must pertain to
the same conduct, not separate conduct. Model Penal Code and
Commentaries § 1.07 cmt. at 102, 106 (Am. Law Inst. 1962)
(noting that the language of the Model Penal Code adopted
verbatim by HRS § 701-109(1) “specifies the situations in which
conviction for more than one offense based on the same conduct
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is precluded” (emphasis added)). See also HRS § 701-118(4)
(1993) (expressly defining “conduct” to mean “an act or
omission, or, where relevant, a series of acts or a series of
omissions, or a series of acts and omissions”). Conversely, if
the offenses pertain to separate conduct, both are eligible for
prosecution and conviction. See State v. Apao, 95 Hawaiʻi 440,
446-47, 24 P.3d 32, 38-39 (2001) (contrasting “separate and
distinct culpable acts” with “an uninterrupted continuous course
of conduct”); State v. Lessary, 75 Haw. 446, 459-60, 865 P.2d
150, 156-57 (1994) (contrasting “the same conduct” test with
“individuals who perform separate acts that independently
constitute separate offenses”); State v. Mendonca, 68 Haw. 280,
284, 711 P.2d 731, 735 (1985) (“Where . . . two different
criminal acts are at issue, supported by different factual
evidence even though separated in time by only a few seconds,
one offense by definition cannot be ‘included’ in the other.”
(citation omitted)).
As noted, we held in Fitzwater that speeding is a
lesser included offense of excessive speeding.17 There was no
dispute that the lesser included offense of speeding pertained
17
In Fitzwater, HRS § 701-109(1) did not apply because the
defendant was charged with only one offense: the offense of excessive
speeding.
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to the same conduct as the greater offense of excessive
speeding, because the defendant had been charged only with the
offense of excessive speeding. Here, though, Kalua is charged
with two offenses: speeding and excessive speeding.
Accordingly, if the district court on remand finds at
trial both offenses to be grounded in the same conduct, then the
State is prohibited from convicting Kalua of excessive speeding.
If, however, the district court finds that the two offenses are
not grounded in the same conduct but rather in different
criminal acts, then the State may convict Kalua of both
offenses.
D. Considerations on Remand
In sum, on remand the State is not barred from
prosecuting Kalua for excessive speeding. At trial, the
district court must determine whether the two offenses involve
the same conduct rather than separate criminal acts. HRS § 701-
109(1)(a)’s prohibition on convicting a defendant of more than
one offense when one of those offenses is a lesser included
offense will apply if the conduct is the same. However, if, on
the other hand, it is found that speeding and excessive speeding
arose from separate criminal acts constituting separate conduct,
Kalua may be convicted of excessive speeding, in addition to the
speeding offense that was already adjudicated.
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IV. Conclusion
Based on the foregoing, we affirm the judgment of the
ICA, but for the reasons stated herein, and remand the case to
the district court for proceedings consistent with this opinion.
John M. Tonaki /s/ Sabrina S. McKenna
Jon N. Ikenaga
for Petitioner /s/ Richard W. Pollack
Mitchell D. Roth /s/ Michael D. Wilson
E. Britt Bailey
for Respondent
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