NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
29-SEP-2023
08:21 AM
Dkt. 35 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI‘I
STATE OF HAWAI‘I, Plaintiff-Appellee,
v.
OPUNUI NAHALEA, Defendant-Appellant
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CASE NO. 1CPC-XX-XXXXXXX)
SUMMARY DISPOSITION ORDER
[By: Hiraoka, Presiding Judge, Wadsworth and Guidry, JJ]
Defendant-Appellant Opunui Nahalea (Nahalea) appeals
from the Amended Judgment of Conviction and Sentence (Judgment)
entered by the Circuit Court of the First Circuit on
December 16, 2022.1 Nahalea was charged with one count of
Robbery in the Second Degree in violation of Hawaii Revised
1 The Honorable Karen T. Nakasone presided over Nahalea's change of
plea hearing. The Honorable Kevin A. Souza presided over the sentencing and
contested restitution hearing.
NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
Statutes (HRS) § 708-841(1)(a) (Count 1),2 and one count of
Unauthorized Control of Propelled Vehicle in violation of HRS
§ 708-836 (Count 2).3 He pleaded no contest to both charges, and
was sentenced to an indeterminate term of imprisonment of ten
years for Count 1 and five years for Count 2. He was also
ordered to pay restitution.
Nahalea alleges a single point of error on appeal,
contending that the circuit court "erred in issuing its order of
restitution because the complaining witness was fully reimbursed
by his insurance company and the complaining witness's insurance
provider did not request restitution."
Upon careful review of the record and the briefs
submitted by the parties, and having given due consideration to
the arguments advanced and the issue raised by the parties, we
resolve Nahalea's point of error as follows:
2 HRS § 708-841(1)(a) (2014) provides, in relevant part:
§ 708-841 Robbery in the second degree. (1) A person
commits the offense of robbery in the second degree if, in
the course of committing theft or non-consensual taking of
a motor vehicle:
(a) The person uses force against the person of
anyone present with the intent to overcome that
person's physical resistance or physical power
of resistance[.]
3 HRS § 708-836 (2014) provides, in relevant part:
§ 708-836 Unauthorized control of a propelled
vehicle. (1) A person commits the offense of unauthorized
control of a propelled vehicle if the person intentionally
or knowingly exerts unauthorized control over another's
propelled vehicle by operating the vehicle without the
owner's consent or by changing the identity of the vehicle
without the owner's consent.
2
NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
This case arises out of the robbery of Nathaniel
Finley (Finley) and the unauthorized control of his vehicle by
Nahalea. At a restitution hearing on December 16, 2022
(Restitution Hearing), the circuit court awarded restitution in
the amount of $12,101.29 to Finley.4 Of this amount, $464.57 was
awarded for personal items that were in the vehicle and never
recovered, namely: Nike shoes ($79.63); a Fitbit ($179.95); a
Ridge wallet ($75); and a Kindle Paperwhite ($129.99). The
remainder of the restitution award, in the amount of $11,636.72,
was for the stolen vehicle which, although recovered, was deemed
to be a total loss by Finley's insurance company, USAA. USAA
compensated Finley in the amount of $11,636.72, which, as Finley
testified, represented the value of the car. Finley testified
at the Restitution Hearing that, "[t]hey pretty much give me the
-– through my insurance, the value of the –- the car."
In his opening brief, Nahalea contends that the
circuit court erred in awarding restitution to Finley. The
State agrees that the circuit court erred in awarding
restitution to Finley for the loss of his vehicle, citing the
4 Nahalea was also ordered to pay $267.31 in restitution to Ryan
Finley, Finley's father, whose personal items were also taken from the car
and not recovered. Nahalea does not challenge the $267.31 restitution award
to Ryan Finley on appeal. Any challenge to the award to Ryan Finley is
waived under Hawaiʻi Rules of Appellate Procedure Rule 28(b)(4) and (7).
3
NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
Hawaiʻi Supreme Court's recent decision in State v. Borge, 152
Hawaiʻi 458, 526 P.3d 435 (2023), as corrected, (May 11, 2023).5
Notwithstanding the State's confession of error,
"appellate courts have an independent duty 'first to ascertain
that the confession of error is supported by the record and
well-founded in law and second to determine that such error is
properly preserved and prejudicial.'" State v. Veikoso,
102 Hawaiʻi 219, 221-22, 74 P.3d 575, 577-78 (2003) (quoting
State v. Hoang, 93 Hawaiʻi 333, 336,
3 P.3d 499, 502 (2000)).
HRS § 706-646 provides, in relevant part, that "[t]he
court shall order the defendant to make restitution for
reasonable and verified losses suffered by the victim or victims6
as a result of the defendant's offense when requested by the
victim," and, moreover, that "[r]estitution shall be a dollar
amount that is sufficient to reimburse any victim fully for
losses[.]" HRS § 706-646 (Supp. 2019). "The interpretation of
a statute is a question of law. Review is de novo, and the
standard of review is right/wrong." Borge, 152 Hawaiʻi at 464,
526 P.3d at 441 (quoting Kimura v. Kamalo, 106 Hawaiʻi 501, 507,
107 P.3d 430, 436 (2005)).
5
Nahalea does not cite to State v. Borge. His opening brief was
filed the same day that the Hawaiʻi Supreme Court issued its published opinion
in Borge, and he elected not to file a reply brief.
6 "Victim" is defined by HRS § 706-646 (2014), in relevant part, as
"[t]he direct victim of a crime including a business entity, trust, or
governmental entity."
4
NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
In Borge, the Hawaiʻi Supreme Court acknowledged that
"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."
Borge, 152 Hawaiʻi at 467, 526 P.3d at 444 (citing State v.
Demello, 136 Hawaiʻi 193, 196,
361 P.3d 420, 423 (2015))
(emphasis omitted). The Borge court applied this standard in
overruling State v. Tuialii, 121 Hawaiʻi 135,
214 P.3d 1125 (App.
2009), and in holding that the circuit court abused its
discretion in ordering the defendant to pay restitution, in the
amount of the complaining witness's medical bills, because the
complaining witness's insurance provider had covered some of the
medical costs, and the rest were adjusted or written off. See
id. at 467,
526 P.3d at 444. As the court explained,
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."
Id. at 468, 526 P.3d at 445.
Borge is applicable here. "HRS § 706-646(3) allows
for restitution only for amounts sufficient to reimburse a
victim fully for losses." Id. at 467-68, 526 P.3d at 444-45.
Under the reasoning in Borge, Finley cannot be "reimbursed" for
5
NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
losses for which he has already been compensated. USAA
compensated Finley for the value of his vehicle,7 and Finley is
therefore not entitled to be "reimbursed" for that amount under
HRS § 706-646(3)(a). The circuit court therefore erred in
awarding $11,636.72 in restitution for Finley's vehicle.
The circuit court did not err, however, in awarding
$464.57 in restitution for the loss of Finley's personal items
that were not recovered. There is no evidence in the record
that Finley's insurance provider paid for the cost of these
personal items. The record establishes that the $464.57 amount
was reasonable, verified, suffered as a result of Nahalea's
conduct, and requested by Finley.
For the foregoing reasons, we vacate the portion of
the restitution award, in the amount of $11,636.72, that was
awarded to compensate Finley for the loss of his vehicle; we
affirm the award in all other respects. We therefore vacate in
part and affirm in part the circuit court's Amended Judgment of
Conviction and Sentence, dated December 16, 2022, and remand for
7 USAA did not itself request restitution for the $11,636.72 that
it paid to Finley for the loss of his vehicle, and the collateral source rule
does not apply to restitution under HRS § 706-646. Borge, 152 Hawaiʻi at 469,
526 P.3d at 446.
6
NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
further proceedings consistent with this summary disposition
order.
DATED: Honolulu, Hawai‘i, September 29, 2023.
On the briefs:
/s/ Keith K. Hiraoka
Walter J. Rodby, Presiding Judge
for Defendant-Appellant.
/s/ Clyde J. Wadsworth
Loren J. Thomas, Associate Judge
Deputy Prosecuting Attorney,
City and County of Honolulu, /s/ Kimberly T. Guidry
for Plaintiff-Appellee. Associate Judge
7
