State v. Aki, Jr. ( 2022 )

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
28-MAR-2022
10:07 AM
Dkt. 58 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
STATE OF HAWAI#I, Plaintiff-Appellee,
v.
LEVI K. AKI, JR., Defendant-Appellant
APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT
(CASE NO. 2PC141000490)
SUMMARY DISPOSITION ORDER
(By: Leonard, Presiding Judge, Wadsworth and Nakasone, JJ.)
Defendant-Appellant, Levi K. Aki Jr. (Aki) appeals from
the Amended Judgment; Conviction and Probation Sentence; Terms
and Conditions of Probation; Notice of Entry filed on February
26, 2020; and Order Setting Restitution filed on February 25,
2020, by the Circuit Court of the Second Circuit (Circuit
Court).1 In accordance with a plea agreement with Plaintiff-
Appellee State of Hawai#i (State), Aki pled no contest to
Terroristic Threatening in the First Degree, in violation of
Hawaii Revised Statutes (HRS) § 707-716.2 As part of his
1
The Honorable Peter T. Cahill presided.
2
Aki pled no contest to Count 4, which read as follows:
That on or about the 13th day of February, 2014, in the
County of Maui, State of Hawaii, KAULANA K. ALO KAONOHI
and/or LEVI K. AKI JR., as principals and/or accomplices,
with the intent to terrorize, or in reckless disregard of
(continued...)
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probation sentence, Aki was ordered to pay $60,425.53 in
restitution, jointly and severally with co-defendant Kaulana Alo
Kaonohi (Alo Kaonohi).
On appeal, Aki contends that the Circuit Court erred in
(1) ordering restitution where there was "no evidence to show
that [Aki's] offense conduct [sic] was the cause of or
aggravated" the victim Christopher Kunzelman's (Kunzelman)
losses; and (2) "assuming arguendo that there was a connection
shown between [Aki's] offense conduct [sic] and the victim's
losses, the Circuit Court erred in ordering restitution for the
iPhone, gold chain, tools/household items, medical costs,
temporary housing, and loss of house use [sic]."
Upon review of the record on appeal and relevant legal
authorities, giving due consideration to the issues raised and
arguments advanced by the parties, we vacate and remand for
findings.
"Review of the trial court's decision to impose
restitution is for an abuse of discretion." State v. DeMello,
130 Hawai#i 332, 340, 310 P.3d 1033, 1041 (App. 2013), vacated in
part on other grounds, 136 Hawai#i 193, 361 P.3d 420 (2015).
Under HRS § 706-646(2) (2014 & Supp. 2016), a court "shall order
[a] defendant to make restitution for reasonable and verified
losses suffered by [a] victim or victims as a result of the
defendant's offense when requested by the victim." "To determine
whether a sufficient nexus exists for the application of HRS §
706-646, a court must determine whether the evidence supports a
finding that the defendant's conduct was the cause of or
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(...continued)
the risk of terrorizing Christopher Kunzelman, did threaten,
by word or conduct, to cause bodily injury to Christopher
Kunzelman, with the use of a dangerous instrument or a
simulated firearm, or serious damage or harm to property of
another, or to commit a felony, thereby committing the
offense of Terroristic Threatening in the First Degree in
violation of Section 707-716(1)(e) of the Hawaii Revised
Statutes.
In exchange for Aki's plea, the State dismissed all other charges, which
included: Burglary in the First Degree; Assault in the First Degree; Assault
in the Third Degree; one additional count of Terroristic Threatening in the
First Degree; Theft in the Second Degree; and Criminal Property Damage in the
First Degree.
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aggravated the victim's loss." State v. Phillips, 138 Hawai#i
321, 352, 382 P.3d 133, 164 (2016) (citation omitted).
Aki argues, inter alia, that the State failed to elicit
evidence proving that the requested restitution was "as a result
of the defendant's offense" under HRS § 706-646(2). Aki asserts
that there was no admission of guilt to the terroristic
threatening offense, and there was no connection shown between
Kunzelman's losses and Aki's offense. Aki claims that the
Circuit Court "did not take judicial notice of the records and
files . . . nor did it judicially notice or indicate . . . that
it was relying upon the PSI [(Pre-sentence Investigation Report)]
that was filed in this case." Assuming arguendo there was a
connection shown between Aki's offense and Kunzelman's losses,
Aki further argues that Aki's "offense would only be related to
the damage to the Land Rover," but the evidence also showed that
"the bulk of the damage to the Land Rover was caused by an
unnamed 'defendant number three . . . .'"
Our appellate review in this case is compromised by the
ambiguity of what constituted the record considered by the
Circuit Court in determining restitution, and by the lack of
factual findings showing the factual basis of the court's ruling.
The Hawai#i Supreme Court has repeatedly stated that:
cases will be remanded when the factual basis of the lower
court's ruling cannot be determined from the record." State
v. Visintin, 143 Hawai#i 143, 157, 426 P.3d 367, 381 (2018)
(internal quotation marks omitted). This rule has been
applied whenever the trial court fails to make findings of
fact that are necessary for the court's ruling. State v.
Hutch, 75 Haw. 307, 331, 861 P.2d 11, 23 (1993) ("Because
findings of fact are imperative for an adequate judicial
review of a lower court's conclusions of law, we have held
that cases will be remanded when the factual basis of the
lower court's ruling cannot be determined from the record."
(alterations and internal quotation marks omitted) (quoting
State v. Anderson, 67 Haw. 513, 514, 693 P.2d 1029, 1030
(1985))); Anderson, 67 Haw. at 514, 693 P.2d at 1030(remanding after determining that the lower court granted
the motion to suppress without having made any findings of
fact). Accordingly, when a trial court has failed to issue
findings of fact and the appellate court is unable to
discern the factual basis of the lower court's ruling, we
have held that the case should be remanded to permit the
lower court or agency to make the requisite findings.
Visintin, 143 Hawai#i at 157, 426 P.3d at 381; see also
Gordon v. Gordon, 135 Hawai#i 340, 351, 350 P.3d 1008, 1019
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(2015) (remanding to the trial court when the record was so
deficient as to prohibit "meaningful appellate review").
Matter of Elaine Emma Short Revocable Living Tr. Agreement Dated
July 17, 1984, 147 Hawai#i 456, 466, 465 P.3d 903, 913 (2020).
Here, following a contested evidentiary restitution
hearing on January 23, 2020, the Circuit Court entered an Order
Setting Restitution that stated:
ORDER SETTING RESTITUTION
A restitution hearing was held on January 23, 2020,
with Deputy Prosecuting Attorney MICHAEL S. KAGAMI,
Defendant LEVI K. AKI, JR., and his counsel WENDY HUDSON,
ESQ. being present.
The Court, having considered the record and the
arguments of counsel, and therefore, being fully advised of
the premises; IT IS HEREBY ORDERED that restitution in the
above-entitled matter is set as follows:
Iphone $ 846.88
Gold chain $ 5,680.00
Land Rover $ 7,947.98
Tools/Household items $25,088.76
Medical costs $10,861.91
Temporary housing $ 5,000.00
Loss of house use $ 5,000.00
Total $60,425.53
Restitution is joint and severally with Defendant
Kaulana Alo Kaonohi in 2PC141000489(2).
The above constitutes the entirety of the order, which did not
contain any findings. While the Circuit Court's oral ruling
appears to contain some factual findings and a credibility
finding,3 it is still unclear what evidence the Circuit Court
3
The Circuit Court gave a lengthy oral ruling addressing the
various items and losses Kunzelman was seeking restitution for. Relevant
portions of the ruling are as follows:
THE COURT: No, I understand that, but they don't need
to do that because we have testimony and it's my job to
determine whether the testimony is, number one, credible,
and whether it's sufficient to establish the burden of
proof, which is by a preponderance of the evidence today.
(continued...)
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3
(...continued)
. . . .
. . . . What I'm considering is what Mr. Kunzelman
said happened, and the bottom line is that I find his
testimony in that regard to be credible.
I will award him all of the medical expenses. . . .
. . . .
. . . I think it has to be based upon the evidence,
but it's been submitted, so all the medical bills are
awarded.
That amount will be restitution to Mr. Kunzelman and
then it's up to USAA to seek recovery, but they are
subrogated so everything they paid for, he's got to pay it
back to them. . . .
. . . .
But going up on the other list of items, starting off
with the iPhone -- it's missing, and I think it needs to be
reimbursed, 846.88. . . .
I also find that Mr. Kunzelman has not recovered the
items of personal property. There's no total here, but I do
find his testimony to be credible that he has not recovered
them; that more likely so than not, they are not recoverable
and they're not around. So that will be awarded in full. I
don't know what the amount is.
[PROSECUTOR], you're going to need to total that at
some point.
. . . And I believe the State has sustained that
burden by the testimony of -- the credible testimony that I
heard from Mr. Kunzelman that he lost these items and he
doesn't have them.
. . . .
. . . This housing -- it's $5,000 because the last --
the one -- he said there was one night, apparently, they
were going to be there anyway. So I find that testimony to
be credible and believable.
Real property -- the property tax – Mr. Kunzelman, you
can't recover your property taxes. . . .
The self storage, I'm not going to permit that. . . .
The loss of use of the home, I don't –- I think a
person can establish the value of their own property. . . .
However, I cannot find that the 67 months, which was from
the beginning of the incident through the time that the PSI
was prepared, is a reasonable sum. So I am only going to
award $5,000 in that particular case because I do think that
within five months -- and the investigation at that point,
the burden shifted to Mr. Kunzelman to do something. I'm
(continued...)
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relied on in determining that a causal connection existed between
Aki's offense and Kunzelman's losses.
The State did not introduce any evidence at the
restitution hearing about Aki's offense or conduct, and Alo
Kaonohi's offense or conduct; and only introduced Exhibit No. 1
which listed numerous items of loss claimed by Kunzelman and
their values. It is not clear whether the PSI report was part of
the record of the restitution hearing, or whether the Circuit
Court considered any part of the PSI Report in determining
restitution. It is also not clear whether and to what extent the
Circuit Court considered any statements or evidence presented to
it, at the prior sentencing hearing on September 19, 2019, in
determining restitution.
While a court is not precluded from considering
evidence within the record prior to a restitution hearing, it is
unclear what the Circuit Court may have relied upon in this case.
Cf. Phillips, 138 Hawai#i at 352-53, 382 P.3d at 164-65 (holding
that evidence at trial and sentencing plainly demonstrated a
sufficient nexus between the defendant's attack, victim's later
death, and restitution for funeral expenses, where defendant was
convicted of second-degree attempted murder); State v. Domingo,
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(...continued)
not in any way, shape or form suggesting that his fear
didn't continue and doesn't continue to this day. It's just
in terms of equating that to a number, I can't award that.
The loss of the vehicle, I believe the damages were
caused directly from the conduct of the defendants. The
amount paid was $7,947. That 7,447.98, plus a deductible of
$500, for a total of $7,947.98.
. . . Now, I think I took care of most of it with the
exception of the gold chain. Okay. I have competing values
here. I think Mr. Kunzelman submitted an estimate based
upon the information that he had. I don't find he in any
way, shape, or form influenced Molina Jewelers, the folks in
Arizona, to come up with some kind of a false estimate.
However, I must contrast that with the testimony of
Mr. Dan, which I do find to be credible and reasonable.
He's very experienced in the area also. He didn't put this
at a low level either. I mean, he came up with $5,680 as a
replacement for a chain of similar amount, which is the
amount I'm going to award in this particular case.
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121 Hawai#i 191, 195, 216 P.3d 117, 121 (App. 2009) (holding that
based on the factual basis stipulated to at the time of
defendant's no contest plea to Accidents Involving Death or
Serious Bodily Injury, and the State's acknowledgment at the
restitution hearing that the decedent, not defendant, caused the
accident that led to decedent's death, there was no sufficient
nexus to order restitution where there was no conduct by the
defendant that caused or aggravated the victim's injuries or
death). Unlike Phillips, 138 Hawai#i 321, 382 P.3d 133, there
was no trial here; and there was no factual basis for Aki's no
contest plea to the first-degree terroristic threatening offense
he pled to, unlike Domingo, 121 Hawai#i 191, 216 P.3d 117.
The Circuit Court's oral ruling did not articulate what
Aki's conduct was, what co-defendant Alo Kaonohi's conduct was,
and how the court connected each defendant's offenses with the
various losses claimed by Kunzelman, to award the restitution
amounts. Based on the current record, this court is unable to
determine whether the Circuit Court abused its discretion in
ordering Aki to pay $60,425.53 in restitution. See Matter of
Elaine Emma Short, 147 Hawai#i at 466, 465 P.3d at 913; DeMello,
130 Hawai#i at 340, 310 P.3d at 1041.
For the foregoing reasons, we vacate in part with
respect to the restitution condition in the Amended Judgment of
Conviction and Probation Sentence filed on February 26, 2020; and
vacate the Order Setting Restitution filed on February 25, 2020,
both filed by the Circuit Court of the Second Circuit, and remand
for factual findings and for further proceedings as may be
necessary consistent with this Summary Disposition Order.
DATED: Honolulu, Hawai#i, March 28, 2022.
On the briefs: /s/ Katherine G. Leonard
Presiding Judge
Andrew T. Park
for Defendant-Appellant /s/ Clyde J. Wadsworth
Associate Judge
Richard B. Rost
Deputy Prosecuting Attorney /s/ Karen T. Nakasone
County of Maui Associate Judge
for Plaintiff-Appellee
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