NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

NO. CAAP-20-0000300

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 PlaintiffAppellee 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...)

Electronically Filed

Intermediate Court of Appeals

CAAP-20-0000300

28-MAR-2022

10:07 AM

Dkt. 58 SO
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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

2(...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,

3(...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:

Andrew T. Park

for Defendant-Appellant

Richard B. Rost

Deputy Prosecuting Attorney

County of Maui

for Plaintiff-Appellee

/s/ Katherine G. Leonard

Presiding Judge

/s/ Clyde J. Wadsworth

Associate Judge

/s/ Karen T. Nakasone

Associate Judge

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