FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

---o0o---

STATE OF HAWAI#I, Plaintiff-Appellee,

v.

BRIAN D. ADCOCK, Defendant-Appellant

NO. CAAP-19-0000508

APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT

(CASE NO. 2CPC-18-0000796)

August 24, 2020

LEONARD, PRESIDING JUDGE, CHAN and HIRAOKA, JJ.

OPINION OF THE COURT BY CHAN, J.

Defendant-Appellant Brian D. Adcock (Adcock) appeals

from the May 31, 2019 Judgment; Conviction and Sentence; Notice

of Entry (Judgment) entered by the Circuit Court of the Second

Circuit (Circuit Court).1 We hold that the Circuit Court did not

err in determining that Adcock validly waived his right to

testify and that any error by the Circuit Court in failing to

obtain a verbal confirmation of Adcock's understanding of his

right not to testify was harmless. We further hold that the

1 The Honorable Rhonda I.L. Loo presided.

Electronically Filed

Intermediate Court of Appeals

CAAP-19-0000508

24-AUG-2020

08:00 AM
FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Crime Victim Compensation (CVC) fee and Internet Crimes Against

Children (ICAC) fee do not amount to unconstitutional taxes and

the Circuit Court did not abuse its discretion in imposing the

fees against Adcock. However, we conclude that the Circuit Court

erred in failing to instruct the jury on merger. For that

reason, we vacate the Judgment and remand for further proceedings

consistent with this opinion.

I. BACKGROUND

On October 15, 2018, Adcock was charged with two counts

of Terroristic Threatening in the First Degree, in violation of

Hawaii Revised Statutes (HRS) § 707-716(1)(e) (2014).2 In both

counts, it was alleged that on October 10, 2018, Adcock

threatened Bert Kamaka (Kamaka) and/or Billy Tagay (Tagay) with a

knife. Count 1 further alleged that Adcock acted with the intent

to terrorize, or in reckless disregard of the risk of terrorizing

Kamaka. Count 2 alleged that Adcock acted with the intent to

terrorize, or in reckless disregard of the risk of terrorizing

Tagay.

During the jury trial, Kamaka testified that on the

morning of October 10, 2018, he arrived at Kalama Park with his

janitorial crew, which included Tagay, to clean the restrooms.

Kamaka and Tagay testified that they noticed Adcock pacing back

and forth about twenty feet from their location, making

stabbing-type motions with a kitchen knife. Kamaka testified

that Adcock then approached them and said "I'm going to stab you

mother fuckers," while continuing to make the stabbing-type

motions with the knife.

On February 7, 2019, after the State rested its case,

2 HRS § 707-716(1)(e) provides: "A person commits the offense of

terroristic threatening in the first degree if the person commits terroristic

threatening . . . [w]ith the use of a dangerous instrument or a simulated

firearm." Terroristic threatening in the first degree is a class C felony.

HRS § 707-715 (2014) provides: "A person commits the offense of

terroristic threatening if the person threatens, by word or conduct, to cause

bodily injury to another person . . . [w]ith the intent to terrorize, or in

reckless disregard of the risk of terrorizing, another person[.]"

2
FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

the Circuit Court initiated the following Tachibana3 colloquy

with Adcock:

THE COURT: Okay.

So as I discussed with you at the beginning of the

trial, Mr. Adcock, you have a constitutional right to

testify in your own defense. Although you should consult

with your lawyers regarding the decision to testify, it is

your decision, and no one can prevent you from testifying

should you choose to do so.

If you decide to testify, the prosecution will be

allowed to cross-examine you. That means ask questions of

you. You also have a constitutional right not to testify

and to remain silent. If you choose not to testify, the

jury will be instructed that it cannot hold your silence

against you in deciding your case.

It is the understanding of the Court that you intend

to testify tomorrow. Is that correct?

THE DEFENDANT: Yes, ma'am.

THE COURT: Okay. Is anyone forcing you or making you

do this?

THE DEFENDANT: No.

THE COURT: Anyone putting any pressure on you?

THE DEFENDANT: No.

THE COURT: Are you doing this voluntarily of your own

free will?

THE DEFENDANT: Yes.

THE COURT: And have you spoken to your attorneys and

discussed this matter with them regarding your decision to

testify?

THE DEFENDANT: Yes.

THE COURT: Okay. Regardless of their advice and

having discussed the matter with them, is it still your

decision to testify in this case?

THE DEFENDANT: Yes.

THE COURT: Okay. And you've had a chance to consult

with your lawyers about this decision. Is that right?

THE DEFENDANT: I did.

3 Tachibana v. State, 79 Hawai#i 226, 900 P.2d 1293 (1995).

3
FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

THE COURT: Okay. So the Court finds the defendant

intends to testify tomorrow.

The next morning, on February 8, 2019, Adcock's counsel

informed the Circuit Court that Adcock would no longer be

testifying and wanted the Circuit Court to re-Tachibana him. The

Circuit Court engaged Adcock in the following colloquy:

THE COURT: So, Mr. Adcock, as I discussed with you

yesterday and at the beginning of the trial, you have a

constitutional right to testify in your own defense.

Although you should consult with your lawyers regarding the

decision to testify, it is your decision and no one can

prevent you from testifying should you choose to do so.

If you decide to testify, the prosecutor will be

allowed to cross-examine you, in other words, ask you

questions. Do you understand?

THE DEFENDANT: I do.

THE COURT: Okay. You also have a constitutional right

not to testify and to remain silent. If you choose not to

testify, the jury will be instructed that it cannot hold

your silence against you in deciding the case.

It is the understanding of myself, the Court, that you

do not intend to testify. Is that correct?

THE DEFENDANT: That is correct.

THE COURT: Okay. Is anyone forcing you or making you

do this?

THE DEFENDANT: No.

THE COURT: Is anyone putting any pressure on you?

THE DEFENDANT: No.

THE COURT: Anyone -- are you doing this voluntarily,

of your own free will?

THE DEFENDANT: Yes.

THE COURT: I know you have two attorneys and you

probably discussed this matter in some detail yesterday and

probably again today. Is that right?

THE DEFENDANT: That's right.

THE COURT: And you slept on it. Is that a good way to

put it? Okay. I just want to make sure, regardless of your

attorneys' advice, it is your decision and your decision

alone not to testify. Is that correct?

THE DEFENDANT: That's correct.

4
FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

THE COURT: Okay. The Court, after questioning the

defendant, finds that he has voluntarily, intelligently, and

knowingly decided not to testify in front of the jury.

The defense then rested without calling any witnesses

or presenting any evidence.

During the settling of jury instructions, Adcock's

counsel argued: "[W]e are dealing with two counts of the

identical offense, and the record shows, in our view, a scintilla

of evidence that this was a continuous course of conduct on

October 10th, done with one intention or impulse. We believe

that a merger instruction[4] must be given." The Circuit Court

refused to provide the instruction. The jury ultimately found

Adcock guilty as charged for both counts of Terroristic

Threatening in the First Degree.

The Circuit Court entered its Judgment on May 31,

2019,5 sentencing Adcock on each count to five years in prison,

4 Adcock proposed the following instruction:

If and only if you find the Defendant guilty of any of

the offenses in Count 1 and Count 2, you must then determine

if the counts merge into a single offense and answer the

following questions on a special interrogatory that will be

provided to you:

(1) Did the prosecution prove beyond a reasonable

doubt that the Defendant did not commit the

offenses in Count 1 and Count 2 as part of a

continuing and uninterrupted course of conduct?

(2) Did the prosecution prove beyond a reasonable

doubt that the Defendant committed the offenses in

Count 1 and Count 2 with separate and distinct

intents, rather than acting with one intention,

one general impulse, and one plan to commit these

offenses?

Your answers to these questions must be unanimous. If you

answer both questions in the negative, the offenses merge. If

any answer is answered in the affirmative, the offenses are

separate and distinct.

5 The Judgment appears to mistakenly indicate that Adcock pled guilty

to the two counts of Terroristic Threatening in the First Degree. However, the

jury verdict and Adcock's Opening Brief state that he pled not guilty and

proceeded to jury trial, where the jury ultimately found him guilty on both

counts of terroristic threatening.

5
FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

to be served concurrently, with credit for time served, and

ordered him to pay a $105 CVC fee and a $100 ICAC fee, for a

total of $410. On the same day, Adcock moved to strike the

imposition of the fees as being unconstitutional taxes. The

Circuit Court denied Adcock's motion to strike the imposition of

the fees on June 26, 2019.

II. POINTS OF ERROR

On appeal, Adcock raises three points of error,

contending that the Circuit Court erred by: (1) failing to

conduct a "true colloquy" with him about his constitutional right

to testify; (2) not providing the jury with a merger instruction

under HRS § 701-109(1)(e) (2014); and (3) levying the $410.00 in

fees, which he asserts "[wa]s an [u]nconstitutional [d]elegation

of the [l]egislature's [t]axation [p]ower[.]"

III. STANDARDS OF REVIEW

A. Waiver of Right to Testify

We review whether a criminal defendant knowingly,

intelligently, and voluntarily waived his or her right to testify

under the right/wrong standard. State v. Eduwensuyi, 141 Hawai#i

328, 332-33, 409 P.3d 732, 736-37 (2018).

B. Jury Instructions

In reviewing a trial court's refusal to give a jury

instruction, we examine 

whether, when read and considered as a whole, the

instructions given are prejudicially insufficient,

erroneous, inconsistent, or misleading. Erroneous

instructions are presumptively harmful and are a ground for

reversal unless it affirmatively appears from the record as

a whole that the error was not prejudicial. In other words,

error is not to be viewed in isolation and considered purely

in the abstract.

State v. Matuu, 144 Hawai#i 510, 516, 445 P.3d 91, 97 (2019)

(quoting State v. Kassebeer, 118 Hawai#i 493, 504, 193 P.3d 409,

420 (2008)).

C. Constitutionality of Statutes

[T]he constitutionality of a statute is a question of law

which is reviewable under the right/wrong standard.

Additionally, where it is alleged that the legislature has

6
FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

acted unconstitutionally, this court has consistently held

that every enactment of the legislature is presumptively

constitutional, and a party challenging the statute has the

burden of showing unconstitutionality beyond a reasonable

doubt. The infraction should be plain, clear, manifest, and

unmistakable.

State v. Calaycay, 145 Hawai#i 186, 197, 449 P.3d 1184, 1195

(2019) (quoting State v. Gaylord, 78 Hawai#i 127, 137, 890 P.2d

1167, 1177 (1995)).

IV. DISCUSSION

A. Waiver of Right to Testify

Adcock first alleges that the Circuit Court failed to

engage in a "true colloquy" with him prior to the waiving of his

right to testify at trial.

Under Tachibana v. State, "trial courts must advise

criminal defendants of their right to testify and must obtain an

on-the-record waiver of that right in every case in which the

defendant does not testify." 79 Hawai#i at 236, 900 P.2d at

1303. This colloquy is also required where the defendant does

testify, "effectively making such a colloquy necessary in every

trial." State v. Torres, 144 Hawai#i 282, 285, 439 P.3d 234, 237

(2019).

A Tachibana colloquy has two components: an apprisal of

the "fundamental principles pertaining to the right to testify

and the right not to testify[,]" State v. Celestine, 142 Hawai#i

165, 170, 415 P.3d 907, 912 (2018) (citing Tachibana, 79 Hawai#i

at 236 n.7, 900 P.2d at 1303 n.7), and "a verbal exchange between

the judge and the defendant 'in which the judge ascertains the

defendant's understanding of the proceedings and of the

defendant's rights[,]'" id. (emphasis omitted) (quoting State v.

Han, 130 Hawai#i 83, 90, 306 P.3d 128, 135 (2013)). Thus, a

valid waiver of the right to testify necessarily follows an

accurate advisement of rights and the defendant's acknowledgment

of those rights. Eduwensuyi, 141 Hawai#i at 336, 409 P.3d at

740.

In order to be a "true colloquy," the trial court

7
FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

cannot merely "recite[] a litany of rights" but must ascertain

whether the defendant understood his or her rights and the

protections associated with those rights, through a verbal

exchange. State v. Pomroy, 132 Hawai#i 85, 93–94, 319 P.3d 1093,

1101–02 (2014).

The Circuit Court in this case properly advised Adcock

of his rights both to testify and not to testify on two

occasions. See Tachibana, 79 Hawai#i at 236 n.7, 900 P.2d at

1303 n.7 (instructing that the colloquy should advise the

defendant "that he or she has a right to testify, that if he or

she wants to testify that no one can prevent him or her from

doing so, and that if he or she testifies the prosecution will be

allowed to cross-examine him or her. In connection with the

privilege against self-incrimination, the defendant should also

be advised that he or she has a right not to testify and that if

he or she does not testify then the jury can be instructed about

that right." (citation and brackets omitted)); Pomroy, 132

Hawai#i at 91, 319 P.3d at 1099 (noting that footnote seven in

Tachibana "stated the purpose and substance of the

right-to-testify colloquy"). The record, however, lacks a verbal

exchange after the Circuit Court apprised Adcock of his right not

to testify on either of the two occasions, the first point at

which Celestine advises the trial court to conduct such an

exchange. 142 Hawai#i at 170, 415 P.3d at 912.

Adcock argues that without a "true colloquy" there

could not be a valid waiver of the right not to testify. In

Pomroy, the supreme court held, inter alia, that the lower court

erred when it did not properly inform the defendant of his right

to testify and the defendant subsequently decided not to testify.

132 Hawai#i at 92-94, 319 P.3d at 1100-02. Unlike here, the

error in Pomroy was related to the right that Pomroy waived and

therefore was not harmless. See id. In this case, Adcock

decided not to testify, thereby waiving his right to testify, but

asserts that the Circuit Court's failure to engage in a "true

8
FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

colloquy" about his right not to testify warrants a new trial.

We have previously held that when the deficiency in a Tachibana

colloquy is not related to the right waived, the error appears

harmless. See State v. Pantke, No. CAAP-17-0000440, 2018 WL

1918200, at *2 n.4 (Haw. App. Apr. 24, 2018) (SDO) ("Because

th[e] error here . . . was in failing to properly advise Pantke

of his right not to testify, and Pantke did not testify, the

error appears to be harmless."); State v. Dykas, No.

CAAP-17-0000352, 2018 WL 852202, at *2 (Haw. App. Feb. 14, 2018)

(SDO) (determining that where the court omitted the advisement

that no adverse inference could be made from the defendant not

testifying and the defendant exercised her right not to testify,

the omission had no effect on the defendant's decision not to

testify because knowing that there would be no adverse

consequences from her failure to testify would not have caused or

influenced her to testify). Therefore, even if we were to

conclude that the Circuit Court erred in not obtaining verbal

confirmation that Adcock understood his right not to testify,

such error is harmless because Adcock did not waive that right.

The crux of the issue is thus whether Adcock properly

waived his right to testify. To determine whether Adcock validly

waived his right to testify we must look at the totality of the

facts and circumstances in this case. See Celestine, 142 Hawai#i

at 171, 415 P.3d at 913. After examining the totality of the

facts and circumstances of the case before us, we conclude that

Adcock knowingly, intelligently, and voluntarily waived his right

to testify. Decisive to our inquiry is the fact that Adcock

concedes that on February 8, 2019, the Circuit Court "correctly

inquired" whether he understood his right to testify, shortly

before he waived that right. On the previous day, his counsel

announced he would testify, but Adcock retracted that decision

and relayed that he "would like [the Circuit Court] to

re-Tachibana him." During the second colloquy, Adcock affirmed

to the Circuit Court that he understood he had the right to

9
FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

testify. His own affirmation that he understood the right to

testify provides an objective basis for us to conclude that his

waiver of the right to testify was knowing, intelligent, and

voluntary. See id. at 170, 415 P.3d at 912. Thus, the record

shows that Adcock was properly advised of his right to testify,

affirmed that he understood that he had the right to testify, and

waived his right to testify.

B. Merger

In his second point of error, Adcock alleges that the

Circuit Court erred by refusing to instruct the jury on the law

of merger.

The law of merger, under HRS § 701–109, "interposes a

constraint on multiple convictions arising from the same criminal

conduct" and "reflects a policy to limit the possibility of

multiple convictions and extended sentences when the defendant

has basically engaged in only one course of criminal conduct

directed at one criminal goal, or when it would otherwise be

unjust to convict the defendant for more than one offense."

State v. Deguair, 139 Hawai#i 117, 128, 384 P.3d 893, 904 (2016)

(internal quotation marks omitted) (first quoting State v.

Matias, 102 Hawai#i 300, 305, 75 P.3d 1191, 1196 (2003) and then

quoting Commentary to HRS § 701–109); State v. Frisbee, 114

Hawai#i 76, 80–81, 156 P.3d 1182, 1186–87 (2007) (stating the

same). HRS § 701-109(1)(e) provides, in relevant part, that

"[t]he defendant may not . . . be convicted of more than one

offense if . . . [t]he 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."

In order for the court to be able to instruct the jury

on the merger, all three elements of subsection (e) must apply: 

(1) the offense must be defined as a continuing course of

conduct; (2) the defendant's conduct was uninterrupted; and (3)

the law does not specify that periods within that course of

10
FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

conduct are separate offenses. See HRS § 701-109(1)(e); State v.

Lavoie, 145 Hawai#i 409, 431, 453 P.3d 229, 251 (2019).

Central to the issue here is whether terroristic

threatening with a dangerous weapon or simulated firearm is

defined as continuing course of conduct. Whether a particular

criminal offense can be charged as a continuous offense is a

question of law. Lavoie, 145 Hawai#i at 431, 453 P.3d at 251

(citing State v. Decoite, 132 Hawai#i 436, 442, 323 P.3d 80, 86

(2014) (Pollack, J., dissenting)). "The test for whether a crime

can be charged as a continuous offense is whether the statute

precludes charging an offense as a continuous offense, and

whether the element(s) of the offense may constitute a

continuous, unlawful act or series of acts, however long a time

the act or acts may occur." Id. (citing Decoite, 132 Hawai#i at

438, 323 P.3d at 82 (majority opinion)).

The State argues that HRS § 707-716(1)(a) (2014),

threatening one victim on multiple occasions with a single

intent, and subsection (b), threatening multiple victims on one

occasion, are continuing courses of conduct, and by implication,

the other subsections, including subsection (e) do not address

continuing courses of conduct. Without a doubt, the statutory

definition of terroristic threatening under subsection (a)

permits a showing that the offense "was committed by a series of

acts constituting a continuing course of conduct." State v.

Apao, 95 Hawai#i 440, 447-48, 24 P.3d 32, 39-40 (2001) (denying

specific unanimity instruction in terroristic threatening charge

where the record indicated that multiple threats occurred over

one uninterrupted occasion). The supreme court did not address

the remaining subsections but noted that "the very nature of

threatening conduct connotes a combination or series of words

and/or actions that together constitute a threat." Id. at 447,

24 P.3d at 39.

Nothing in the language of HRS § 707-716(1)(e)

"precludes" charging terroristic threatening with a dangerous

11
FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

instrument under subsection (e) as a continuous offense. See

Lavoie, 145 Hawai#i at 431, 453 P.3d at 251; State v. Arceo, 84

Hawai#i 1, 18–19, 928 P.2d 843, 860–61 (1996) (stating that

examples of "continuing offenses" include: first degree murder;

first degree robbery; kidnapping, under certain circumstances;

theft of a firearm; and theft of state property by deception; but

do not include "sexual offenses").

Because terroristic threatening may be defined as a

continuing course of conduct, HRS § 701-109(1) may apply. "If

there is a possibility that two counts of a complaint are

'grounded in the same conduct,' HRS § 701-109(1) mandates, 'at a

minimum, that the circuit court instruct the jury regarding

merger.'" State v. Wilson, No. 28478, 2009 WL 48141, at *18

(Haw. App. Jan. 7, 2009) (mem. op.) (quoting Frisbee, 114 Hawai#i

at 80, 156 P.3d at 1186).

Whether a course of conduct gives rise to more than one

crime within the meaning of HRS § 701–109(1)(e) depends in

part on the intent and objective of the defendant. The test

to determine whether the defendant intended to commit more

than one offense is whether the evidence discloses one

general intent or discloses separate and distinct intents.

Where there is one intention, one general impulse, and one

plan, there is but one offense. All factual issues involved

in this determination must be decided by the trier of fact.

State v. Hoey, 77 Hawai#i 17, 27 n.9 , 881 P.2d 504, 514 n.9

(1994) (emphasis added) (brackets omitted) (quoting State v.

Alston, 75 Haw. 517, 527–28, 531, 865 P.2d 157, 163–65 (1994)).

Indeed, "the state of mind of the defendant at the time . . .

will determine the number of charged crimes of which the

defendant may properly be convicted, and merger is the means by

which charging schemes that do not comport with the defendant's

state of mind are corrected." State v. Ganal, 81 Hawai#i 358,

384, 917 P.2d 370, 396 (1996) (applying HRS § 701-109(1)(a) to

convictions for first-degree murder and attempted first-degree

murder involving multiple victims).

The number of victims does not preclude the use of

merger, where facts presented show only a general intent to

12
FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

commit the offense. See, e.g., State v. Galante, No.

CAAP-15-0000376, 2019 WL 926627, at *2 (Haw. App. Feb. 26, 2019)

(SDO) (determining that two counts of Inattention to Driving

merged where the defendant's conduct resulted in a single

collision between the defendant's vehicle and a vehicle

containing two people). In Deguair, 139 Hawai#i at 128-129, 384

P.3d at 904-05, the supreme court concluded that four kidnapping

convictions, each involving a different victim, should merge with

a robbery conviction because the jury had found that "each

kidnapping was committed as a continuing course of conduct, with

no separate and distinct intent from the robbery." Thus, the

supreme court emphasized that intent, and not the result of the

conduct upon each victim, is paramount when applying merger. 

Here, the indictment cites the same conduct in both

counts: "that [Adcock] . . . did threaten, by word or conduct, to

cause bodily injury to Bert Kamaka and/or Billy Tagay, with the

use of a dangerous instrument or a simulated firearm, to wit, a

knife[.]" The counts differ in the intent element, alleging that

Adcock intended to terrorize or recklessly disregarded the risk

of terrorizing, Kamaka in Count 1, and Tagay in Count 2.

Adcock maintains on appeal that "[b]oth complainants

testified that Mr. Adcock's words and conduct constituted the

same act and that he threatened both complainants at the same

time." Kamaka testified that prior to starting work in the

Kalama Park area on October 10, 2018, he warned his janitorial

crew that a man had approached him at the park the day before and

told Kamaka that he would cut and stab Kamaka if the crew touched

the man's and another homeless man's belongings. When the

janitorial crew arrived at the park in the early morning of

October 10, 2018, Adcock was pacing along a walkway leading to

the bathroom with a kitchen knife. Kamaka testified that Adcock

approached the truck and crew with the kitchen knife while making

stabbing motions, and yelled, "I'm going to stab you mother

fuckers." Tagay also testified that Adcock said he was going to

13
FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

stab them, while showing them the knife, and took steps towards

where the crew was. Tagay further stated that Adcock smirked at

the crew and taunted them, "calling us losers and stuff."

Adcock's statement to police after his arrest, however, was that

he only addressed one of the members of the janitorial crew,

asking him, "[Y]ou don't sound retarded, why are you stealing

their jobs?" Whether Adcock possessed a "separate and distinct

intent" to terrorize Kamaka and Tagay individually was a factual

issue to be determined by the trier of fact. See Hoey, 77

Hawai#i at 27 n.9, 881 P.2d at 514 n.9. The jury instructions

were prejudicially insufficient, and thus the Circuit Court erred

in refusing to instruct the jury regarding the merger of the two

counts.

Adcock maintains that a finding of instructional error

requires that his sentence be vacated and remanded for a new

trial.

When a trial court plainly errs by failing to give a merger

instruction in the first place, the usual remedy is a

retrial. However, as noted approvingly by the Supreme Court

of Hawai#i in Deguair, when, on appeal, the State suggests

dismissing one of the defendant's convictions to remedy the

defect rather than face wholesale retrial, the appellate

court may remand for that purpose.

State v. Hufanga, No. CAAP-17-0000737, 2019 WL 1487047, at *3

(Haw. App. April 4, 2019) (SDO) (citations omitted).

Accordingly, we vacate the judgment and remand, giving the State

the option of retrying Adcock's charged offenses with the

appropriate merger instruction or dismissing one of the

terroristic threatening charges. See State v. Padilla, 114

Hawai#i 507, 517, 164 P.3d 765, 775 (App. 2007).

C. Post-Trial Fee Discussion

Adcock claims that the Circuit Court's assessment of

$410 was the result of an unconstitutional delegation of the

legislature's taxation power to the judiciary. Under the Hawai#i

Constitution, the State has reserved the power of taxation to the

legislature, but such power may be delegated by the legislature

to the counties. Hawaii Insurers Council v. Lingle, 120 Hawai#i

14
FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

51, 70, 201 P.3d 564, 583 (2008) (citing Haw. Const. art. VIII, §

3); see also McCandless v. Campbell, 20 Haw. 411, 420 (Haw. Terr.

1911) ("The power of taxation is essentially a legislative power.

It cannot be delegated except to municipalities which themselves

exercise subordinate legislative powers.").

The fees here were created by the legislature,

specifically under HRS § 351-62.6 (2015) and HRS § 846F-3 (2015).

These statutes have a presumption of constitutionality and it is

Adcock's burden to show unconstitutionality beyond a reasonable

doubt. Calaycay, 145 Hawai#i at 197, 449 P.3d at 1195.

Because these fees were established by the legislature,

they are distinguishable from the fees challenged in the cases

Adcock relies upon. Particularly, State v. Medeiros, 89 Hawai#i

361, 973 P.2d 736 (1999), concerned fees established by a

Honolulu municipal ordinance, and Hawaii Insurers Council, 120

Hawai#i 51, 201 P.3d 564, concerned fees established by the

Insurance Commission, a regulatory agency.

Adcock bases his argument that the legislature

impermissibly delegated its taxation power to the judiciary on

the assertion that the "fees" assessed as part of his sentence

were not "fees," but rather "taxes." Adcock posits that "[a]ny

charge 'imposed by the government on persons, entities,

transactions, or property to yield public revenue' is a tax."

This is a faulty syllogism based on the Black's Law Dictionary

definition quoted in Hawaii Insurers Council which defines tax as

"[a] monetary charge imposed by the government on persons,

entities, transactions, or property to yield public revenue."

120 Hawai#i at 60, 201 P.3d at 573 (quoting Black's Law

Dictionary 1496 (8th ed. 2004)). Adcock ignores that the court

emphasized that "[n]ot every exaction by state authorities is a

tax." Id. at 59, 201 P.3d at 572 (brackets in original) (quoting

Hexom v. Oregon Dep't of Transp., 177 F.3d 1134, 1135 (9th Cir.

1999)).

The nature of a charge imposed by law "is not

15
FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

determined by the label given to it but by its operating

incidence." Medeiros, 89 Hawai#i at 366, 973 P.2d at 741

(quoting Stewarts' Pharmacies v. Fase, 43 Haw. 131, 144 (1959)); 

see also People v. Graves, 919 N.E.2d 906, 910 (Ill. 2009)

("[T]he statutory labels applied to a charge do not control where

the purpose of the charge contradicts that label." (citing People

v. Jones, 861 N.E.2d 967, 985-86 (Ill. 2006))). Therefore, it is

inconsequential that the charges that Adcock challenges are

labeled as "fees."

The Hawai#i Supreme Court has defined "taxes" as

follows:

Taxes are the enforced proportional contributions from

persons and property, levied by the state by virtue of its

sovereignty for the support of government, and for all

public needs.

Taxes are generally defined as burdens or charges

imposed by legislative authority on persons or property to

raise money for public purposes, or, more briefly, an

imposition for the supply of the public treasury.

The word taxes is very comprehensive, and properly

includes, as indicated in the foregoing definition, all

burdens, charges and impositions by virtue of the taxing

power with the object of raising money for public purposes.

Hawaii Insurers Council, 120 Hawai#i at 59–60, 201 P.3d at 572–73

(quoting McCandless, 20 Haw. at 420).

A fee is a charge that "(1) applies to the direct

beneficiary of a particular service, (2) is allocated directly to

defraying the costs of providing the service, and (3) is

reasonably proportionate to the benefit received." Medeiros, 89

Hawai#i at 367, 973 P.2d at 742 (modifying the test enunciated in

Emerson College v. City of Boston, 462 N.E.2d 1098, 1105 (Mass.

1984)). The supreme court has further distinguished between user

fees and regulatory fees. A user fee, such as a bridge toll or

charges for sewer hookups or wastewater management, is "based on

the rights of the entity as a proprietor of the instrumentalities

used." Hawaii Insurers Council, 120 Hawai#i at 60, 201 P.3d at

573 (quoting Medeiros, 89 Hawai#i at 366, 973 P.2d at 741). A

user fee is generally charged to the recipient of a service

16
FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

provided by the government. Id. at 62, 201 P.3d at 575. In

contrast, regulatory fees, such as licensing and inspection fees,

are "founded on the police power to regulate particular

businesses or activities." Id. (quoting Medeiros, 89 Hawai#i at

366, 973 P.2d at 741).

The Attorney General, in an amicus brief, posits a

third possibility: that the assessed charges are "fines." A

"'fine' is 'a pecuniary punishment or penalty[.]'" Casumpang v.

ILWU Local 142, 108 Hawai#i 411, 422, 121 P.3d 391, 402 (2005)

(quoting Black's Law Dictionary 6th ed. 1990)). More

specifically, it is a "a retributive payment due the sovereign."

State v. Toyomura, 80 Hawai#i 8, 18 n.14, 904 P.2d 893, 903 n.14

(1995) (emphasis in original) (internal quotation marks omitted)

(quoting Gaylord, 78 Hawai#i at 152, 890 P.2d at 1192). Fines

are included in the punishments prescribed by the legislature in

HRS § 706-605 (2014 & Supp. 2018). See also State v. Nunes, 72

Haw. 521, 524, 824 P.2d 837, 839 (1992). Under the Hawaii Penal

Code, fines are permitted in addition to a sentence of

imprisonment or incarceration where "[t]he court is of the

opinion that a fine is specially adapted to the deterrence of the

crime involved or to the correction of the defendant." HRS §

706-641(2)(b) (2014).

The Illinois Supreme Court has held that "the central

characteristic which separates a fee from a fine" is "whether the

charge seeks to compensate the state for any costs incurred as

the result of prosecuting the defendant." Graves, 919 N.E.2d at

910 (citing Jones, 861 N.E.2d at 986). "A charge is a fee if and

only if it is intended to reimburse the state for some cost

incurred in defendant's prosecution." Id. A fine, on the other

hand, is imposed only after conviction for a criminal offense and

is payable to the State treasury, and may, but is not required

to, vary with the severity of the behavior. See Jones, 861

N.E.2d at 975, 986.

Of the three classifications, the ICAC fee and CVC fee

17
FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

most resemble fines. Both are penalties imposed after criminal

convictions, both are to be paid into special funds in the State

treasury that do not reimburse payments related to the

defendant's prosecution, and in the case of the CVC special fund,

the severity of the crime is a criterion to be considered when

the court orders the payment.

The fees in question are punitive in nature. HRS §

706-605(6) mandates that the court "shall impose a compensation

fee upon every person convicted of a criminal offense pursuant to

section 351-62.6," which in turn provides that the fee must be

imposed on every defendant convicted and "who is or will be able

to pay the compensation fee." Similarly, HRS § 846F-3 requires

the court to order "every defendant to pay an internet crimes

against children fee of up to $100 for each felony or misdemeanor

conviction; provided that no fee shall be ordered when the court

determines that the defendant is unable to pay the fee."

Therefore, the legislature authorized the imposition of the

charges at issue here as a punishment for criminal behavior.

The charges were not created to offset the costs of

prosecution. The CVC special fund, which is supported in part by

fees authorized under HRS § 351-62.6, is intended "to aid victims

of criminal acts, by providing compensation for victims of

certain crimes or dependents of deceased victims[.]" HRS § 351-1

(2015). ICAC fees are to be deposited in a special fund that

shall be expended by the Attorney General to train, equip, and

enable local law enforcement agencies in investigating and

prosecuting internet crimes against children, and to assist

groups working directly to combat internet crimes against

children. HRS § 846F-4(b) (2015). Although Adcock is correct in

stating that money from the charges do not "defray any costs for

services to the defendants," which weighs against considering the

charges to be "fees" as described in Medeiros and Hawaii Insurers

Council, that point does not preclude them from being fines.

Further supporting the conclusion that the CVC fee is a

18
FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

fine, the statute authorizing it requires the court to consider

HRS § 706-641, which applies to other criminal fines, when

determining the amount a defendant must pay. See HRS §

351-62.6(b). The statute also directs that

the court shall consider all relevant factors, including but

not limited to:

(1) The seriousness of the offense;

(2) The circumstances of the commission of the

offense;

(3) The economic gain, if any, realized by the

defendant;

(4) The number of victims; and

(5) The defendant's earning capacity, including

future earning capacity.

(c) The compensation fee shall be considered a civil

judgment.

HRS § 351-62.6(b), (c). Thus, the rates vary, in part, with the

seriousness of the offense, a factor demonstrating that a charge

is a fine under Jones.

Adcock complains that these fees turn the courts into

revenue centers for the State. On this point, comparison to

Medeiros is instructive. The ordinance held to be

unconstitutional in Medeiros gave the city discretion to use the

funds in accordance with the city's annual operating budget,

rather than mandated that they be used on the law enforcement

objectives for which the "service fee" was purportedly

established. 89 Hawai#i at 367 & n.5, 973 P.2d at 742 & n.5. 

Thus, the supreme court found, there was a "possibility that the

charge could be used for general revenue raising purposes, the

classic realm of taxation." Id. at 367, 973 P.2d at 742. In

contrast, the CVC fee and ICAC fee are deposited into special

funds, which are required by statute to be expended for limited

purposes; their use is not discretionary. "Moneys received [in

the CVC special fund] shall be used for compensation payments,

operating expenses, salaries of positions as authorized by the

19
FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

legislature, and collection of fees." HRS § 351-62.5(d)

(emphasis added). Likewise, HRS § 846F-4(b) mandates that funds

in the ICAC special fund be used

(1) To provide training and equipment for local law

enforcement agencies to use in investigating and

prosecuting internet crimes against children,

including funding to increase the forensic capacity of

digital evidence;

(2) To enable law enforcement to investigate and prosecute

internet crimes against children; and

(3) To assist groups working directly to combat internet

crimes against children.

Because the use of the funds is controlled by a mandatory rather

than discretionary statute, the fees cannot be classified as

taxes. See Medeiros, 89 Hawai#i at 367 & n.5, 973 P.2d at 742 &

n.5.

Finally, Adcock complains that "[n]one of his offenses

are in any way related to internet crimes against children." To

the extent that we read this complaint as an argument that the

statute violates his right to substantive due process because

there is no rational basis for the imposition of the ICAC fee, we

disagree. As we previously recited, it is well established that

"every enactment of the legislature is presumptively

constitutional, and a party challenging the statute has the

burden of showing unconstitutionality beyond a reasonable doubt.

The infraction should be plain, clear, manifest, and

unmistakable." Calaycay, 145 Hawai#i at 197, 449 P.3d at 1195

(quoting Gaylord, 78 Hawai#i at 137, 890 P.2d at 1177). "Under

rational basis review, a statute must 'rationally further a

legitimate state interest.' A state interest is 'legitimate' if

it involves the public health, safety, or welfare." State v.

Mallan, 86 Hawai#i 440, 451–52, 950 P.2d 178, 189–90 (1998)

(quoting Estate of Coates v. Pac. Engineering, 71 Haw. 358,

363–64, 791 P.2d 1257, 1260 (1990)). The legislature determined

that assessing this charge serves the public safety and welfare

because it serves a punitive purpose against those who are

20
FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

convicted, and it furthers the legitimate state interest of

pursuing those who commit internet crimes against children by

providing funding for the program as described in HRS chapter

846F. The Circuit Court recognized this, and, citing State v.

Peraza, 467 S.W.3d 508 (Tex. 2015), concluded that the funds were

expended for "legitimate criminal justice purposes." There is

sufficient justification for the fees to survive rational basis

scrutiny.

Adcock has not met his burden of showing that the

statutes under which he was ordered to pay fees as part of his

sentence are unconstitutional. "[W]hile a sentence may be

authorized by a constitutionally valid statute, its imposition

may be reviewed for plain and manifest abuse of discretion."

State v. Martin, 103 Hawai#i 68, 74, 79 P.3d 686, 692 (App. 2003)

(quoting Gaylord, 78 Hawai#i at 144, 890 P.2d at 1184).

"Generally, to constitute an abuse[,] it must appear that the

court clearly exceeded the bounds of reason or disregarded rules

or principles of law or practice to the substantial detriment of

a party litigant." Id.

Adcock complains that the sentencing court has

"unfettered discretion in fixing" the fees. To the contrary, HRS

§ 706-605(6) requires the imposition of the CVC fee on every

person convicted of a criminal offense, but HRS § 351-62.6

provides that the court shall waive the fee if the court finds

that the defendant is unable to pay. Similarly, the ICAC fee is

contingent on the defendant's ability to pay. Adcock's counsel

twice admitted that the objection was not based on Adcock being

unable to pay. Accordingly, the Circuit Court did not abuse its

discretion in imposing the mandatory fines against Adcock.

21
FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

V. CONCLUSION

Based on the error in instructing the jury on merger,

we vacate the May 31, 2019 Judgment; Conviction and Sentence;

Notice of Entry and remand this matter to the Circuit Court for

resentencing, or in the alternative, a new trial.

On the briefs:

Benjamin E. Lowenthal, /s/ Katherine G. Leonard

Deputy Public Defender,

for Defendant-Appellant.

/s/ Derrick H. M. Chan

Richard B. Rost,

Deputy Prosecuting Attorney,

County of Maui, /s/ Keith K. Hiraoka

for Plaintiff-Appellee.

22