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IN THE SUPREME COURT OF THE STATE OF HAWAIʻI

---oOo---

________________________________________________________________

STATE OF HAWAIʻI, Respondent/Plaintiff-Appellant, 

vs.

MATTHEW SEAN SASAI, Petitioner/Defendant-Appellee,

(CAAP-15-0000865; CASE NO. 1DCW-14-0004628)

AND

STATE OF HAWAIʻI, Respondent/Plaintiff-Appellant/Cross-Appellee,

vs.

BRENT N. TANAKA, Petitioner/Defendant-Appellee/Cross-Appellant

(CAAP-15-0000866; CASE NO. 1DCW-14-0005843).

________________________________________________________________

SCWC-15-0000865

CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS

(CAAP-15-0000865)

OCTOBER 29, 2018

RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.

OPINION OF THE COURT BY McKENNA, J.

I. Introduction

In this consolidated appeal, Matthew Sean Sasai and Brent 

N. Tanaka (“Sasai” and “Tanaka,” respectively; collectively, 

“Petitioners”) assert that their due process and equal 

Electronically Filed

Supreme Court

SCWC-15-0000865

29-OCT-2018

08:24 AM
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protection rights were violated when they were each charged with 

one count of Prostitution under Hawaii Revised Statutes (“HRS”) 

§ 712-1200(1)(b) (2014). When Petitioners were charged, HRS § 

712-1200(1)(b) provided that “[a] person commits the offense of 

prostitution if the person . . . [p]ays, agrees to pay, or 

offers to pay a fee to another to engage in sexual conduct,” and 

HRS § 712-1200(1)(a) provided that “[a] person commits the 

offense of prostitution if the person . . . [e]ngages in, or 

agrees or offers to engage in, sexual conduct with another 

person for a fee[.]” In their motions to dismiss, Petitioners 

argued that HRS §§ 712-1200(1)(a) and (1)(b) prohibited the same 

conduct, but subsection (1)(b) carried a harsher penalty because 

it made them ineligible for a deferred acceptance of a guilty or 

no contest plea (“DAG/DANC plea”) under HRS § 853-4(a)(13)(V) 

(2014). They argued that pursuant to State v. Modica, 58 Haw.

249, 567 P.2d 420 (1977), where two crimes prohibit the same 

conduct, it would violate their due process and equal protection 

rights to convict them of the crime carrying the harsher 

penalty. The District Court of the First Circuit (“district 

court”)1 agreed and entered its Findings of Fact, Conclusions of 

Law, and Order (“FOF/COL and Order”) on October 6, 2015, 

 

1 The Honorable James H. Ashford presiding.
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granting Petitioners’ motions to dismiss based on Modica and 

dismissing the charges with prejudice.

On appeal, a majority of the Intermediate Court of Appeals 

(“ICA”) vacated the district court’s rulings in a Summary 

Disposition Order (“SDO”), determining that HRS § 712-1200(1)(a) 

applied only to sellers of sexual conduct while subsection 

(1)(b) pertained only to purchasers. The ICA majority concluded 

that subsections (1)(a) and (1)(b) therefore prohibited 

different conduct, and that the district court erred in finding 

a Modica violation. Judge Ginoza2 dissented, agreeing with the 

district court that a person charged under HRS § 712-1200(1)(b) 

could be charged under HRS § 712-1200(1)(a), and that subsection 

(1)(b) carried a harsher penalty by virtue of ineligibility for 

a DAG/DANC plea. 

On certiorari, Petitioners assert the ICA majority erred in 

vacating the district court’s order granting dismissal. We 

agree, and we therefore vacate the ICA’s SDO and Judgment on 

Appeal. Because the district court did not provide reasons for 

its dismissal with prejudice, however, we remand these cases to 

the district court for further proceedings consistent with this 

opinion.

 

2 Judge Ginoza became Chief Judge effective April 24, 2018.
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II. Background

A. District Court Proceedings

On September 10, 2014, Sasai was charged with one count of 

Prostitution, in violation of HRS § 712-1200(1)(b).3 Tanaka was 

charged with the same offense on December 18, 2014.4 

1. Petitioners’ Motions to Dismiss

On May 15, 2015, Tanaka filed his Motion to Dismiss for 

Violation of Defendant’s Right to Due Process and Equal 

Protection of the Laws (“Tanaka Combined Motion”). On June 9, 

2015, Sasai filed his Motion to Dismiss for Violation of 

Defendant’s Right to Due Process and Equal Protection of the 

Laws (“Sasai Modica Motion”).

5

In their respective motions, Petitioners requested their 

charges be dismissed, arguing that being charged under HRS § 

712-1200(1)(b) violated their due process and equal protection 

rights under the United States and Hawaiʻi constitutions because 

HRS § 712-1200(1)(b) carried a harsher punishment, but contained

“the exact same elements” as HRS § 712-1200(1)(a). They noted

that this court, in Modica, ruled that a felony conviction would 

 

3 This case was 1DCW-14-4628, which became CAAP-15-865.

4 This case was 1DCW-14-5843, which became CAAP-15-866.

5 Sasai filed his Motion to Dismiss for Violation of Defendant’s Right to 

Equal Protection of the Laws (“Sasai Equal Protection Motion”). That motion, 

as well as part of the Tanaka Combined Motion, made an equal protection 

argument based on alleged discriminatory enforcement of the prostitution 

statute. Petitioners have not pursued that argument on certiorari.
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violate the defendant’s rights to due process and the equal 

protection of the laws “where the same act committed under the 

same circumstances is punishable either as a felony or as a 

misdemeanor, under either of two statutory provisions, and the 

elements of proof essential to either conviction are exactly the 

same[.]” 58 Haw. at 251, 567 P.2d at 422 (citations omitted). 

Petitioners argued “the Modica rule applies to any situation 

where the elements of two different crimes regardless of their 

classification are the same, but the statutory penalties are 

different.”

Petitioners urged the district court to analyze “the 

elements of the charges based on the particular facts of the 

case[,]” as this court had done in State v. Hoang, 86 Hawai‘i 48, 

947 P.2d 360 (1997), and the ICA had done in State v. Hatori, 92 

Hawai‘i 217, 990 P.2d 115 (App. 1999). They contended that both 

HRS §§ 712-1200(1)(a) and (1)(b) required “the ‘same act’ of 

entering into an agreement for sexual conduct for a fee, which 

implicitly involves agreement for payment,” and therefore that 

act was punishable “under either HRS § 712-1200(1)(a) and HRS § 

712-1200(1)(b) ‘precisely because the elements of proof 

essential to either conviction are exactly the same.’” This 

conclusion was supported, Petitioners contended, by the 

legislative history of HRS § 712-1200. 
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At the time Petitioners were charged, both HRS § 712-

1200(1)(a) and (1)(b) were petty misdemeanors punishable by a 

mandatory $500 fine and up to thirty days in jail, but 

convictions under subsection (1)(b) were not eligible for 

deferred acceptance of guilty or no contest plea under HRS § 

853-4(13)(V) (2014). Because the punishment for subsection 

(1)(b) was more severe, that is, violators of subsection (1)(a) 

could seek a deferred plea but violators of (1)(b) could not, 

Petitioners asserted that their respective charges should be 

dismissed as a violation of their due process and equal 

protection rights under Modica. 

In its memoranda in opposition to Petitioners’ respective 

motions, the State submitted, based on its interpretation of HRS 

§ 712-1200, that subsection (1)(a) should be read to apply only 

to “those persons offering sex for a fee,” whereas subsection 

(1)(b) should be read to apply to “those persons who offer a fee 

for sex. . . .” The State urged the district court to read the 

statute this way “to give proper meaning to all portions of § 

712-1200,” and avoid rendering subsection (1)(b) a “nullity.” 

Further, the State argued the legislative history of the statute 

made clear that subsection (1)(b) was intended to apply to the 

patrons of prostitutes. 

The State contended that HRS §§ 712-1200(1)(a) and (1)(b) 

did not have the same elements and did not prohibit the same act 
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because “subsection (1)(a) applies to those who offer sex for 

money, whereas subsection (1)(b) applies to those [who] offer 

money for sex.” The State asserted “[t]he acts . . . reside on 

opposite sides of the transaction or agreement and cannot, 

therefore, be the same act.” Additionally, the State argued the 

statutory penalties for violating subsections (1)(a) and (1)(b) 

were the same, and asserted that a deferral is a “non-penalty” 

because “[w]hether or not a deferral is an option is not the

punishment itself but is a delayed dismissal given certain 

conditions.” 

2. District Court’s FOF/COL and Order

The district court held a two-day consolidated hearing on 

the motions to dismiss. Petitioners called three witnesses and 

the district court accepted several stipulations.

6 On July 21, 

2015, the district court granted the Petitioners’ motions, based 

on Modica, and dismissed their respective charges with 

prejudice.

7 

On October 6, 2015, the district court filed its written

 

6 Petitioners called two Honolulu Police Department (“HPD”) officers and 

one former prosecutor to testify to the State and HPD’s enforcement practices 

with respect to HRS §§ 712-1200(1)(a) and (1)(b). The majority of that 

testimony relates to the equal protection argument not before this court. 

7 The district court took Petitioners’ discriminatory enforcement 

argument under advisement, and later denied their motions with respect to 

that argument. 
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FOF/COL and Order.8 Based on the testimony of former Deputy 

Prosecuting Attorney Klemen Urbanc (“Urbanc”), the district 

court found that before the 2011 amendment to HRS § 712-1200(1), 

“both [purchasers and sellers of sexual conduct] were prosecuted 

under the same provision - HRS § 712-1200(1); the subdivisions 

in what would later become HRS §§ 712-1200(1)(a) and (1)(b) did 

not exist yet. The language in HRS § 712-1200 did not prohibit 

Urbanc from prosecuting any [purchasers of sexual conduct]

charged with prostitution.” Factual stipulations, entered into 

by the parties and the district court on June 26, 2015, further 

explained how HRS § 712-1200 changed over time:

1. Prior to 1990, HRS § 712-1200(1) provided: “A person 

commits the offense of prostitution if the person engages 

in, or agrees or offers to engage in, sexual conduct with 

another person in return for a fee.”

2. In 1990, HRS § 712-1200(1) was amended to delete the 

phrase “in return” such that HRS § 712-1200(1) then read: 

“A person commits the offense of prostitution if the person 

engages in, or agrees or offers to engage in, sexual 

conduct with another person for a fee.”

3. The language of HRS § 712-1200 remained the same from 

1990 until July 1, 2012.[9]

4. Effective April 25, 2013, HRS [§] 853-4 excludes 

persons charged under HRS § 712-1200(1)(b) from being able 

to move for a deferred acceptance of a no contest or guilty 

plea. 

5. Conference Committee Report No. 76 provides that one of 

the purposes of House Bill No. 240 [(the 2011 amendment to 

 

8 Specifically, the district court’s Order (1) granted Sasai’s Modica 

Motion; (2) denied Sasai’s Equal Protection Motion; and (3) granted in part 

and denied in part Tanaka’s Combined Motion. 

9 House Bill No. 240, which amended HRS § 712-1200 to include the 

language at issue in this case, actually became effective July 1, 2011. H.B. 

240, S.D. 1, C.D. 1, 26th Leg., Reg. Sess. (2011). 
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HRS § 712-1200)] was to “[e]xtend the offenses of 

prostitution and solicitation of prostitution to reach 

those who pay, agree to pay, or offer to pay a fee to 

another person to engage in sexual conduct.”

. . . .

The district court concluded that only a purchaser of 

sexual conduct “can properly be charged under HRS § 712—

1200(1)(b)” but that “all persons charged with prostitution—

whether [purchasers of sexual conduct] or [sellers of sexual 

conduct]—can properly be charged under HRS § 712-1200(1)(a).” 

This conclusion was “evident from the plain language of HRS § 

712-1200(1)(a),” the district court held, “as both (i) a 

prospective or actual buyer of sex, and (ii) a prospective or 

actual seller of sex, can be said to engage in, agree to engage 

in, or offer to engage in sexual conduct with another person for 

a fee (as required by HRS § 712-1200(1)(a)).” The enforcement 

history of the statute also supported this conclusion, because 

“[f]or many years, the State prosecuted both [purchasers and 

sellers of sexual conduct] under an identical statute (HRS § 

712-1200(1)),” and the fact that “the State prosecuted [sellers 

and purchasers of sexual conduct] alike under a statute 

substantively identical to the current HRS § 712-1200(1)(a) is 

further evidence to support the conclusion that all persons now 

charged with prostitution . . . can properly be charged under 

HRS § 712-1200(1)(a).” 
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The district court rejected the State’s argument “that the 

Court’s interpretation of HRS § 712-1200(1)(a) would render HRS 

§ 712-1200(1)(b) a nullity,” relying on its plain language 

interpretation of the statute:

10. . . . HRS § 712-1200(1)(b) properly can be used to 

charge [purchasers of sexual conduct], at least insofar as 

charging a [purchaser of sexual conduct] with prostitution 

would comport with the plain language of the statute. 

Therefore, the Court’s interpretation of HRS § 712-

1200(1)(a) does not render HRS § 712-1200(1)(b) a nullity. 

The Court does, however, find that HRS § 712-1200 (1)(b) is 

superfluous. However, neither HRS § 712-1200(1)(a) nor HRS 

§ 712-1200(1)(b) are ambiguous. Although the Hawai[ʻ]i 

Legislature may have adopted a superfluous statute, the 

Court cannot ignore the plain language of HRS § 712-

1200(1)(a); and it cannot ignore the legislative history of 

HRS § 712-1200, or the history of enforcement of the 

prostitution statute. Therefore, the Court cannot accept 

the State's argument on this point.

11. In all cases that were brought under HRS § 712-

1200(1), and are or can be brought under HRS § 712-

1200(1)(a), the fundamental bargain is identical: the 

accused offers to engage in sex (or agrees to engage in sex 

or does, in fact, engage in sex) with another person in 

exchange for a fee. This bargain is the same for both 

parties involved, as they both agree to engage in sex for a 

fee. Thus, the conduct is the same—engaging in sex for a 

fee—regardless of whether the involved party is a [seller 

of sexual conduct] or a [purchaser of sexual conduct].

Because a person charged under HRS § 712-1200(1)(b) is 

prohibited from seeking a deferral of a guilty or no contest 

plea under HRS § 853-4(a)(13)(V), the district court concluded 

that “in practical effect, a person charged under HRS § 712-

1200(1)(b) is exposed to the possibility of a far harsher result 

than a person charged under HRS § 712-1200(1)(a).” That 

“harsher result” included a guaranteed fine, a potential jail 
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sentence, and the inability to seek “deferral, dismissal and 

expungement[.]” 

The district court recognized that under Modica, “if a 

violation of a misdemeanor statute would invariably and 

necessarily also constitute a violation of a felony statute, 

then it is a violation of equal protection and due process to 

proceed against a defendant under the felony statute.” 

Additionally, it noted a felony conviction is a due process and 

equal protection violation “when the same act committed under 

the same circumstances is punishable either as a felony or as a 

misdemeanor[.]” Because Modica applied to differently classed 

felonies in State v. Arceo, 84 Hawai‘i 1, 928 P.2d 843 (1996), 

the district court concluded it should logically apply “to 

differentially classed petty misdemeanors, such as charges under 

HRS §[§] 712-1200(1)(a) and (1)(b).”

Finally, the district court concluded that the conduct 

prohibited by HRS §§ 712-1200(1)(a) and (1)(b) was the same, and 

“[t]herefore, the result should be the same, but it is not—due 

to HRS § 853-4(a)(13)(V), which essentially discriminates 

against defendants charged under HRS § 712-1200(1)(b).” The 

district court further concluded that because “[t]he guiding 

principle of Modica is that if the same conduct can be charged 

more harshly under one statute than another,” it would be a 

violation of the due process and equal protection clauses for 
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the State to prosecute Petitioners under the “statute which 

yields a harsher penalty.” The district court summarily 

dismissed the charges against Sasai and Tanaka with prejudice. 

The district court’s Judgment and Notice was entered on 

October 10, 2015. The State appealed and Tanaka crossappealed.10

B. ICA Proceedings

On the State’s motion, Petitioners’ cases were consolidated 

under CAAP-15-865. 

In its opening brief, the State raised three points of 

error related to the Petitioners’ Modica motions. First, the 

State challenged COLs 5 through 12, in which the district court 

interpreted the language of HRS §§ 712-1200(1)(a) and (1)(b) as

prohibiting the same conduct. The State reasserted its argument 

that subsection (1)(a) applies solely to sellers of sexual 

conduct because subsection (1)(b) applies solely to purchasers. 

Second, the State disputed COLs 17 through 19, which analyzed 

HRS §§ 712-1200(1)(b) and 853-4, asserting that even if HRS § 

712-1200(1)(b) was subject to a harsher penalty, Modica did not 

apply to the Petitioners’ cases because “the elements of the two 

subsections are not the same.” Third, the State noted that 

 

10 Tanaka’s cross appeal argued the Petitioners’ discriminatory 

enforcement argument, and challenged errors in the FOF that Tanaka ultimately

conceded did not “significantly affect the district court’s ruling denying 

Tanaka’s motion in part (or granting Tanaka’s motion in part).” 
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Petitioners conceded the State could refile the charges under 

HRS § 712-1200(1)(a) if the charges under subsection (1)(b) were 

dismissed without prejudice.

The State asserted the district court’s interpretation of 

HRS §§ 712-1200(1)(a) and (1)(b), in addition to rendering 

subsection (1)(b) “superfluous,” also rendered HRS § 853-

4(a)(13)(V) void. The State opined that if the legislature 

thought HRS § 712-1200(1)(a) applied to purchasers of sexual 

conduct as well as sellers, “it could and it would have amended 

the language . . . so that it would have been even clearer that 

HRS § 712-1200(1)(a) is not a proper charge for those who buy 

sex.”

Petitioners argued their alleged conduct would be a 

violation of HRS § 712-1200(1)(a) that necessarily constituted a 

violation of HRS § 712-1200(1)(b). They explained that in 

Hoang, this court looked to the elements of the statutes, 

language of the charging document, and the specific facts of the 

case to determine whether a Modica violation had occurred. 86 

Hawai‘i at 58, 947 P.2d at 370. Petitioners noted that in 

Hatori, the ICA performed a similar analysis to conclude that, 

as applied to the facts of that case, charging under a highergrade felony statute was a Modica violation. 92 Hawai‘i at 227, 

990 P.2d at 125. Based on these cases, Petitioners asserted the 
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State was required to prove the same facts under HRS §§ 712-

1200(1)(a) and (1)(b):

Under either of the two statutory provisions, the State 

essentially must establish the following: a defendant 

intentionally or knowingly entered into agreement with 

another person; the first term of the agreement is to 

engage in sexual conduct; and the second term of the 

agreement is payment of a fee. Thus, the act of “agreeing 

to engage in sexual conduct with another person for a fee,” 

which is required for a conviction for HRS § 712-1200(1)(a) 

is identical to the act of “agreeing to pay a fee to 

another to engage in sexual conduct”, which is required for 

the [sic] a conviction under HRS § 712-1200(1)(b). Clearly, 

the harm, which the Modica rule seeks to prevent, is 

perpetuated when the State is allowed to exercise unguided 

discretion in choosing to charge a person under subsection 

(1)(b) instead of (1)(a) when the elements of proof under 

[sic] offense are identical.

Petitioners asserted subsections (1)(a) and (1)(b) provided

no limitations or guidance for their application, leaving the 

State with unbridled discretion in choosing which defendants to 

charge under which subsection. Although Petitioners conceded 

that the legislature intended to render persons charged under 

HRS § 712-1200(1)(b) ineligible for deferral, they contended the 

legislature’s intent with respect to either HRS § 712-1200(1)(b) 

or HRS § 853-4 was irrelevant to application of the Modica rule.

In reply, the State argued that a subsequent amendment to 

HRS § 712-1200(1)(a) in 2016 “confirmed” the legislature’s 

original intent was that HRS § 712-1200(1)(a) should apply to 

sellers of sexual conduct and HRS § 712-1200(1)(b) should apply 

to purchasers of sexual conduct. Specifically, the legislature 

distinguished subsection (1)(a) from subsection (1)(b) by adding 
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the phrase “in return,” so that subsection (1)(a) was violated 

when a person engaged in sexual conduct “in return for a fee.”11

In its SDO, the ICA vacated the district court’s order 

insofar as it granted the Petitioners’ motions based on Modica. 

State v. Sasai, No. CAAP-15-865, State v. Tanaka, No. CAAP-15-

866 (App. Jun. 30, 2017) (SDO) at 2. While it concluded that 

the district court’s reading of HRS § 712-1200(1)(b) was 

correct, and that subsection applied only to purchasers of 

sexual conduct, the ICA held that the district court erred in 

determining that subsection (1)(b) was superfluous. Sasai, SDO 

at 4. In order to “harmonize” subsections (1)(a) and (1)(b), 

and give effect to them both, the ICA concluded that if 

subsection (1)(b) applied to the purchasers of sexual conduct, 

then subsection (1)(a) was meant to apply to the sellers of 

sexual conduct. Sasai, SDO at 4-5. The ICA looked to the

legislative history of HRS § 712-1200(1)(b), as well as the

subsequent amendment to HRS § 712-1200(1)(a), to confirm its 

interpretation of the statute. Sasai, SDO at 5. 

Having determined that subsections (1)(a) and (1)(b) 

prohibited different conduct, the ICA reasoned that the 

subsections therefore contained different “essential elements 

 

11 When the State filed its Reply Brief on June 2, 2016, it noted that the 

amendment “was awaiting the Governor’s signature to go into effect.” The 

amendment became effective on July 1, 2016. HRS § 712-1200 (2016).
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for each offense and can be punished differently.” Sasai, SDO 

at 6. The ICA held that the Modica rule did not apply to 

Petitioners’ cases and the district court erred in granting 

their motions to dismiss. Id. 

Judge Ginoza dissented. Sasai, SDO at 12 (Ginoza, J., 

dissenting). In her view, the history and plain language of HRS 

§§ 712-1200(1)(a) and (1)(b) made clear that a person “who 

pays/agrees to pay/offers to pay a fee to another to engage in 

sexual conduct” could be charged under either subsection, and 

that “the prohibited conduct was the same under both 

subsections.” Sasai, SDO at 13 (Ginoza, J., dissenting). “In 

short,” she explained, “for such person, the elements of proof 

for conviction under either subsection (1)(a) or (1)(b) were the 

same, and a violation of subsection (1)(a) would invariably and 

necessarily constitute a violation of subsection (1)(b).” 

Sasai, SDO at 13-14 (Ginoza, J., dissenting).

Judge Ginoza noted that although Modica addressed a felony 

and a misdemeanor offense, this court has applied the Modica

rule to different grades of felonies in Arceo, and the ICA did 

so in Hatori. Sasai, SDO at 14 (Ginoza, J., dissenting). She 

opined that Modica applied to Petitioners’ cases, where both 

subsection (1)(a) and subsection (1)(b) were petty misdemeanors 

but “the penalty under subsection (1)(b) is more severe in that 

a DAG is precluded under HRS § 853-4(a)(13)(V).” Id. In sum, 
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Judge Ginoza would have affirmed the district court’s dismissal 

of Petitioners’ charges. Id.

C. Application for Writ of Certiorari

Petitioners raise a single question in their Application: 

“Whether the ICA majority gravely erred in holding that the 

trial court erred in dismissing the charges due to violations of 

Petitioners’ Due Process and Equal Protection rights pursuant to 

State v. Modica, 58 Haw. 249, 567 P.2d 4[2]0 (1977).” They make 

three arguments: first, the ICA majority incorrectly 

interpreted HRS § 712-1200(1)(a) by relying on dictionary 

definitions; second, the subsequent legislative history of HRS § 

712-1200(1)(a) did not support the majority’s position; and 

third, the majority judicially revised the statute, which was 

improper. 

Petitioners assert that, based on the ICA’s definition of 

“engage” as “to do or take part in something,” a person can be 

either the fee payer or fee recipient and commit prostitution 

under HRS § 712-1200(1)(a). They contend that the “essence” of 

the offense of prostitution “is that the parties enter into an 

agreement or contract for sexual conduct for a fee.” Because 

the statute contained no limitation to reduce the scope of 

subsection (1)(a) to the sellers of sexual conduct, Petitioners 

argue the plain language of HRS § 712-1200(1)(a) prohibited both 

the buying and selling of sexual conduct. 
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As to the ICA majority’s use of subsequent legislative 

history, Petitioners assert that subsequent legislative history 

“should be viewed with extreme caution,” citing precedent by 

this court and persuasive authority from the United States 

Supreme Court. Petitioners contend that, instead, the actual 

legislative history of HRS § 712-1200(1)(a) is relevant, and its 

1990 amendment made clear that the language of HRS § 712-1200(1) 

was meant to apply to both sellers of sexual conduct and 

purchasers. They assert the 2011 amendment splitting HRS § 712-

1200(1) into subsections (1)(a) and (1)(b) was intended to 

prohibit the purchasing of sexual conduct. Based on committee 

reports, Petitioners maintain, however, that the legislature 

enacted the 2011 amendment because it was mistaken about the 

effect of its 1990 amendment, which already prohibited that 

behavior. 

Petitioners argue that the 2016 amendment to HRS § 712-

1200(1)(a) was a substantive change to the law, not a 

“clarification” of its language, because the statute was already 

clear and unambiguous. Ultimately, they argue, the 

legislature’s 2016 “clarification” of HRS § 712-1200(1)(a) to 

“distinguish” it from subsection (1)(b) was indicative of the 

fact that, previously, there was no distinction between the 

sections, and purchasers of sexual conduct could have been 

charged under either subsection (1)(a) or (1)(b).
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Finally, Petitioners assert the ICA majority’s 

interpretation of HRS § 712-1200(1)(a) was an improper judicial 

revision of the statute. They argue the ICA majority’s 

interpretation of the word “engage” improperly limited the 

application of subsection (1)(a) to the sellers of sexual 

conduct, which did not comport with the plain and unambiguous 

language of the statute. Furthermore, Petitioners opine that 

the district court’s interpretation of subsection (1)(a) does 

not render subsection (1)(b) superfluous. Rather, in their 

view, it would mean that defendants charged under subsection 

(1)(b) between April 25, 2013 and July 1, 2016, would have a 

Modica challenge, as long as they were otherwise eligible for a 

deferral. 

II. Standards of Review

A. Questions of Law

Questions of law are reviewable de novo under the 

right/wrong standard of review. State v. Jess, 117 Hawaiʻi 381, 

391, 184 P.3d 133, 143 (2008).

B. Statutory Construction

This court’s construction of statutes is guided by the 

following 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 
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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. Wheeler, 121 Hawaiʻi 383, 390, 219 P.3d 1170, 1177 

(2009) (quoting Citizens Against Reckless Dev. v. Zoning Bd. of 

Appeals of the City & Cty. of Honolulu, 114 Hawaiʻi 184, 193, 159 

P.3d 143, 152 (2007)).

III. Discussion 

A. Evolution of HRS § 712-1200

Before its amendment in 1990, HRS § 712-1200 provided: “A 

person commits the offense of prostitution if the person engages 

in, or agrees or offers to engage in, sexual conduct with 

another person in return for a fee.” HRS § 712-1200(1) (1986) 

(emphasis added). In 1990, the phrase “in return” was removed, 

so that HRS § 712-1200(1) provided: “A person commits the 

offense of prostitution if the person engages in, or agrees or 

offers to engage in, sexual conduct with another person for a 

fee.” 1990 Haw. Sess. Laws Act 204, § 1 at 442. As recounted 

by the ICA in State v. Espinosa, 120 Hawai‘i 478, 210 P.3d 1 

(App. 2009), “both the Senate and House Judiciary committees 

noted . . . that the purpose of . . . amend[ing] HRS § 712–1200 

[was] ‘to make it clear that the customer of a prostitute is 

also guilty of the offense of prostitution[.]’” 120 Hawai‘i at 

480, 201 P.3d at 3 (citing S. Stand. Comm. Rep. No. 325, in 1989 
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Senate Journal, at 946; H. Stand. Comm. Rep. No. 1205–90, in 

1990 House Journal, at 1316). 

In 2011, the legislature further amended HRS § 712-1200(1), 

splitting it into the two subsections at issue in this case. 

H.B. 240, S.D. 1, C.D. 1, 26th Leg., Reg. Sess. (2011). 

Although the 1990 amendment already rendered HRS § 712-1200(1) 

applicable to the purchasers of sexual conduct, Espinosa, 121 

Hawai‘i at 480, 210 P.3d at 3, the legislature’s 2011 amendment 

intended to “[e]xtend the offense[] of prostitution . . . to 

reach those who pay, agree to pay, or offer to pay a fee to 

another person to engage in sexual conduct[.]” Conf. Comm. Rep. 

No. 76 on H.B. No. 240 in 2011 House Journal, at 1630, 2011 

Senate Journal, at 732. The Senate Standing Committee Report 

specifically states the amendment was intended “to address the 

concerns raised from the case State v. Espinoza[sic][.]” S.

Stand. Comm. Rep. No. 1137, in 2011 Senate Journal, at 1285. 

Whether or not the legislature was mistaken as to the 

effect of the 1990 amendment, the 2011 amendment retained the 

language of HRS § 712-1200(1) (Supp. 1990) when it created HRS §

712-1200(1)(a) (Supp. 2011), which provided: “A person commits 

the offense of prostitution if the person . . . [e]ngages in, or 

agrees or offers to engage in, sexual conduct with another 

person for a fee[.]” HRS § 712-1200(1)(a) (Supp. 2011). In 

contrast, the newly created subsection (1)(b) contained new 
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language: “A person commits the offense of prostitution if the 

person . . . [p]ays, agrees to pay, or offers to pay a fee to 

another to engage in sexual conduct.” HRS § 712-1200(1)(b) 

(Supp. 2011). 

Effective July 1, 2016, HRS § 712-1200(1)(a) now provides: 

“A person commits the offense of prostitution if the person . . 

. [e]ngages in, or agrees or offers to engage in, sexual conduct 

with another person in return for a fee[.]” H.B. 2561, 28th 

Leg., Reg. Sess. (2016) (emphasis in original). This amendment 

was intended to “clarify” HRS § 712-1200(1)(a), “distinguishing 

the offense from the offense under section 712-1200(1) . . . in 

which the other person pays the fee[.]” Id. This case, 

however, is governed by the previous version of the statute.

B. The Modica Rule

In Modica, this court held that a defendant’s rights to due 

process of law and equal protection of the laws would be 

violated when “a violation of [a] misdemeanor statute . . . 

would invariably and necessarily constitute a violation of the 

felony provision.” 58 Haw. at 250, 567 P.2d at 421 (citations 

omitted). A defendant may not be convicted of an offense that 

carries a harsher penalty than another offense containing the 

same elements:

[W]here the same act committed under the same circumstances 

is punishable either as a felony or as a misdemeanor, under 

either of two statutory provisions, and the elements of 

proof essential to either conviction are exactly the same, 
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a conviction under the felony statute would constitute a 

violation of the defendant’s rights to due process and the 

equal protection of the laws. 

58 Haw. at 251, 567 P.2d at 422 (citations omitted). However, 

where the defendant’s conduct violates either of two statutes, 

but the defendant is charged or convicted of the offense that 

carries the lesser punishment, there is no Modica violation. 

See Hoang, 86 Hawaiʻi at 59, 947 P.2d at 371 (holding that 

because the defendant was charged with the misdemeanor offense, 

he could not be convicted of the felony, and therefore “was not 

threatened with unbridled, capricious, and prejudicial 

prosecutorial discretion.”).

Although “[s]tatutes may on occasion overlap, depending on 

the facts of a particular case, . . . it is generally no defense 

to an indictment” that the defendant could have been charged 

under another statute. Modica, 58 Haw. at 251, 567 P.2d at 422. 

Rather, when statutes overlap, “the matter is necessarily and 

traditionally subject to the prosecuting attorney’s discretion.” 

58 Haw. at 251, 567 P.2d at 422. Overlapping statutes raise 

constitutional concerns when, lacking legislative guidance, 

prosecutors are left with unbridled discretion to charge 

defendants with a more severe offense. 58 Haw. at 251, 567 P.2d 

at 422 (citing State v. Pirkey, 281 P.2d 698, 703 (Or. 

1955)(overruled on different grounds by City of Klamath Falls v. 

Winters, 619 P.2d 217 (Or. 1980)) (holding it was 
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unconstitutional “to vest in a grand jury or magistrate the 

unguided and untrammeled discretion to determine whether a 

defendant shall be charged with a felony or a misdemeanor[.]”); 

Olsen v. Delmore, 295 P.2d 324, 327 (Wash. 1956) (citing Pirkey

for the proposition that the statute at issue “lodged . . . 

discretion with prosecuting officials” and was therefore 

unconstitutional)).12 

Unbridled prosecutorial discretion has remained a chief 

concern in this court’s application of the Modica rule. In 

Arceo, the defendant was charged with one count of sexual 

assault in the first degree, in violation of HRS § 707-

 

12 In United States v. Batchelder, 442 U.S. 114 (1979), the United States 

Supreme Court held that it was not unconstitutional for two statutes with 

different penalties to prohibit identical conduct, as long as the government 

“does not discriminate against any class of defendants.” 442 U.S. at 124-25. 

The Court held that a prosecutor’s decision to charge under one statute or 

the other is never “unfettered” because “[s]electivity in the enforcement of 

criminal laws is, of course, subject to constitutional constraints.” 442 

U.S. at 125-26. In effect, Batchelder overruled Pirkey and Olsen insofar as 

they held that it was unconstitutional under the equal protection clauses of 

the federal constitution to grant such discretion to charging officials.

Some states have adopted the Batchelder analysis. See City of Klamath 

Falls v. Winters, 619 P.2d 217 (Or. 1980) (recognizing that Batchelder

overruled Pirkey); see generally State v. Rooney, 19 A.3d 92 (Vt. 2011); 

State v. Williams, 175 P.3d 1029 (Utah 2007); Johnson v. State, 61 P.3d 1234 

(Wyo. 2003). 

Some states have declined to follow Batchelder on state law grounds. 

See generally State v. Thompson, 200 P.3d 22 (Kan. 2009); People v. Sharpe, 

839 N.E.2d 492 (Ill. 2005); People v. Estrada, 601 P.2d 619 (Colo. 1979). 

This court has continued to embrace the Modica rule. See Arceo, 84 

Hawaiʻi 1, 928 P.2d 843 (applying the Modica rule in 1996, after Batchelder

was announced). We decline to adopt Batchelder. Our state constitution may 

afford our citizens broader protections than the federal constitution. 

Arceo, 84 Hawai‘i at 28, 928 P.2d at 870 (quoting State v. Wallace, 80 Hawai‘i 

382, 397 n.14, 910 P.2d 695, 710 n.14 (1996)); State v. Hoey, 77 Hawai‘i 17, 

36, 881 P.2d 504, 523 (1994)). As our cases after Batchelder could not have 

been based on the federal constitution, they were based on the due process 

and equal protection clauses of Article I, Section 5 of the Constitution of 

the State of Hawaiʻi. 
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730(1)(b)(1993), and one count of sexual assault in the third 

degree, in violation of HRS § 707-732(1)(b)(1993). 84 Hawaiʻi at 

2-3, 928 P.2d at 844-45. The State argued those offenses could 

be charged as continuing offenses. 84 Hawaiʻi at 4, 928 P.2d at 

846. This court disagreed, holding instead that each act in 

violation of those statutes was a separate offense. 84 Hawaiʻi 

at 21, 928 P.2d at 863. To hold otherwise, we concluded, would 

have meant that “the same acts committed under the same 

circumstances could, by virtue of the prosecution’s charging 

option or whim, be punishable either as a single offense or as 

multiple offenses, even though the elements of proof essential 

to either result would be exactly the same.” 84 Hawaiʻi at 22, 

928 P.2d at 864. 

Although Modica analyzed a misdemeanor and a felony 

statute, this court applied the Modica rule to two differently 

classed felonies in Arceo. 84 Hawaiʻi at 22, 928 P.2d at 864. 

As the focus of the Modica rule is curbing unbridled 

prosecutorial discretion when identical conduct could constitute 

crimes carrying punishments of differing severity, the Modica

rule can apply to offenses with the same or different statutory 

classes. Thus, as in the present case, the Modica rule can 

apply—if its requirements are otherwise met—to two petty 

misdemeanors. 
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In sum, the Modica rule requires the court to answer three 

questions: (1) whether defendant’s alleged conduct is 

punishable under either of two statutory provisions; (2) whether 

the elements of proof essential to conviction under the statutes 

are exactly the same; and, (3) whether the punishment for the 

offense with which the defendant was charged or convicted is 

greater than the punishment for the alternative offense. 58 

Haw. at 250-51, 567 P.2d at 421-22. 

C. Petitioners’ Charges Violated the Modica Rule

1. Petitioners’ conduct was punishable under either HRS 

§§ 712-1200(1)(a) or (1)(b)

The threshold question of the Modica inquiry is whether the 

defendant’s alleged conduct is punishable under either of two 

statutory provisions. 58 Haw. at 251, 567 P.2d at 422. This 

court’s analysis must begin with the plain language of the 

statute. Wheeler, 121 Hawai‘i at 390, 219 P.3d at 1177. 

When Petitioners were charged, HRS § 712-1200(1)(a) 

provided that a person who “[e]ngages in, or agrees or offers to 

engage in, sexual conduct with another person for a fee” 

committed the offense of prostitution. HRS § 712-1200(1)(a) 

(2014). Subsection (1)(b) provided that one who “[p]ays, agrees 

to pay, or offers to pay a fee to another to engage in sexual 

conduct” also commits the offense of prostitution. HRS § 712-

1200(1)(b) (2014). 
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The ICA reasoned that because subsection (1)(b) was limited 

to purchasers, subsection (1)(a) must therefore be limited to 

sellers. Sasai, SDO at 4-5. The ICA looked to a 2016 amendment 

of HRS § 712-1200(1)(a) to “confirm” its interpretation of the 

pre-2016 text, and sought to “harmonize” subsections (1)(a) and 

(1)(b) under the guidance of State v. Davis, 63 Haw. 191, 624 

P.2d 376 (1981).

13 Sasai, SDO at 4. The ICA erred in attempting 

to “harmonize” the subsections of HRS § 712-1200 “to give effect 

to them both” because the plain text of each subsection was 

unambiguous.

Although HRS § 712-1200(2) (2014) defined “sexual conduct” 

by reference to HRS § 707-700 (2014), neither of those sections

defined the terms “engages in” or “pays.” As the ICA noted, 

courts may look to “legal or other well accepted dictionaries” 

to ascertain the “ordinary meaning” of words in a statute. 

State v. Jing Hua Xiao, 123 Hawai‘i 251, 259, 231 P.3d 968, 976 

(2010). To “engage” is “[t]o employ or involve oneself; to take 

 

13 Davis stated: 

Statutes should be interpreted according to the intent and 

meaning, and not always according to the letter, and every 

part thereof must be viewed in connection with the whole so 

as to make all parts harmonize, if practicable, and give a 

sensible and intelligent effect to each.

Davis, 63 Haw. at 193, 624 P.2d at 380. Davis stands for the proposition 

that statutes should be read in pari materia to discern their meaning. Davis 

is not relevant to determining whether a defendant’s constitutional rights 

under the Modica rule are implicated by different statutes or different 

subsections of a statute. 
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part in[.]”

14 Black’s Law Dictionary (10th ed. 2014). The word 

“pay” has multiple definitions, but HRS § 712-1200(1)(b) employs 

it as a verb, and as such “pay” generally connotes a monetary 

transaction between two or more parties. See Black’s Law 

Dictionary (10th ed. 2014) (defining “pay” as “1. To give money 

for a good or service that one buys; to make satisfaction . . . 

3. To give (someone) money for the job that he or she does; to 

compensate a person for his or her occupation[.]”)

By use of the phrase “[e]ngages in,” subsection (1)(a) made 

it illegal to “involve oneself” or “to take part in” any “sexual 

conduct with another person for a fee.” As the district court 

correctly concluded, this language prohibits conduct on both 

sides of the prostitution transaction. The purchasers and 

sellers of sexual conduct both “take part in” and “involve 

themselves” with prostitution. A person who offers sexual 

conduct for a fee literally “employs” themselves in 

prostitution, but the purchaser of sexual conduct is no less 

“engaged” in the transaction.

Thus, because Petitioners’ alleged conduct was punishable 

under either HRS § 712-1200(1)(a) or HRS § 712-1200(1)(b), the 

first part of the Modica test is satisfied.

 

14 The ICA defined “engage” as “to do or take part in something.” Sasai, 

SDO at 3 (quoting Merriam-Webster, https://www.merriamwebster.com/dictionary/engage (last visited May 1, 2018)). 
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2. The elements of proof essential to conviction under 

HRS §§ 712-1200(1)(a) and (1)(b) are identical, as 

applied to purchasers of sexual conduct

Turning to the second part of the Modica inquiry, a denial 

of the defendant’s constitutional rights occurs “only if a 

violation of the misdemeanor statute . . . would invariably and 

necessarily constitute a violation of the felony provision.” 58 

Haw. at 250, 567 P.2d at 421. Further, “the elements of proof 

essential to either conviction” must be “exactly the same.” 58 

Haw. at 251, 567 P.2d at 422. 

As discussed above, all violations of HRS § 712-1200(1)(b) 

would also be violations of subsection (1)(a), as it existed 

before July 1, 2016. Subsection (1)(a), however, contains 

broader language than subsection (1)(b), such that there are at 

least two ways to “engage” in prostitution under that 

subsection: one may pay, or one may otherwise “engage” by 

selling sexual conduct. As a result, violation of subsection

(1)(a), the offense with the lesser punishment, is not 

invariably and necessarily a violation of subsection (1)(b), the 

offense with the greater punishment, and ordinarily the Modica

rule would not be violated. See State v. Kuuku, 61 Haw. 79, 82,

595 P.2d 291, 294 (1979) (finding no Modica rule violation where 

there were “any number of ways by which the [misdemeanor] 

statute may be violated without also violating the [felony] 

statute.”); but see Hatori, 92 Hawai‘i at 227, 990 P.2d at 125
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(finding a Modica violation where the lesser offense prohibited 

a broader range of conduct, but the conduct at issue would 

always constitute a violation of both the lesser and greater 

offenses).

Nonetheless, the 2011 amendment to HRS § 712-1200(1) made 

possible the existence of “the very evils rendered unlawful by 

the Modica rule.” See Arceo, 84 Hawaiʻi at 22, 928 P.2d at 864

(identifying due process and equal protection violations in a 

charging practice subject to “the prosecution’s charging option 

or whim”). The language of HRS § 712-1200(1) (Supp. 1990) 

applied to both purchasers and sellers of sexual conduct, and 

that language was used verbatim in HRS § 712-1200(1)(a) (2011). 

Given that they have identical language, subsection (1)(a) 

(Supp. 2011) should logically be interpreted the same way that 

section (1) (Supp. 1990) once was — to apply to both purchasers

and sellers of sexual conduct. 

As explained in Part III, Section C(1), the plain language 

of HRS §§ 712-1200(1)(a) and (1)(b) (Supp. 2011) gave

prosecutors the ability to charge purchasers under either 

subsection, at their discretion.15 The amendment of HRS § 712-

 

15 At the hearing on the motions to dismiss, a list of defendants charged 

under HRS § 712-1200(1)(b) and the known dispositions of their cases was 

admitted into evidence. That list of dispositions indicated that at least 

four defendants charged under HRS § 712-1200(1)(b) after April 25, 2013, were 

ultimately granted deferred pleas after the State amended their charges to 

HRS § 712-1200(1)(a). 

(continued. . .)
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1200(1) in 2011 created a Modica problem, because it leaves the 

determination of the defendant’s charges and ultimate punishment 

to be governed by the prosecutor’s discretion. See State v. 

Lee, 75 Haw. 80, 93, 856 P.2d 1246, 1254 (1993) (“[A] criminal 

statute is void for vagueness unless it . . . provides explicit 

standards for those who apply the statute, in order to avoid 

arbitrary and discriminatory enforcement and the delegation of 

basic policy matters to policemen, judges, and juries for 

resolution on an ad hoc and subjective basis.” (internal 

quotations, brackets, and citation omitted)).

Whether a purchaser is charged under subsection (1)(a) or 

(1)(b), the State must prove that the purchaser “engaged” 

themselves in prostitution by paying, agreeing to pay, or 

offering to pay another person to engage in sexual conduct. As 

applied to the purchasers of sexual conduct, subsections (1)(a) 

and (1)(b) prohibit the same conduct but prescribe different 

punishment. Because elements of proof essential to conviction

under HRS §§ 712-1200(1)(a) and (1)(b) are the same, as applied 

to purchasers of sexual conduct, the second part of the Modica

 

(. . . continued)

While the factual bases for these charges are not present in the 

record, the fact that such amendments were possible supports our conclusion 

that prosecutorial discretion, not the text of the statute or intent of the 

legislature, determined whether defendants were prosecuted under HRS § 712-

1200(1)(b) instead of HRS § 712-1200(1)(a).
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test is met.

16 Our holding is also consistent with the ICA’s 

holding in Hatori that a Modica violation exists where the 

lesser felony prohibited a broader range of conduct, but the 

conduct at issue would always constitute a violation of both the 

lesser and greater felonies. Hatori, 92 Hawai‘i at 227, 990 P.2d 

at 125.

3. The punishment for HRS § 712-1200(1)(b) is greater 

than the punishment for HRS § 712-1200(1)(a)

The final question in the Modica inquiry is whether the 

punishment for the offense with which the defendant was charged 

is greater than the punishment for the alternative offense. 58 

Haw. at 251, 567 P.2d at 420. 

Prostitution, under either subsection of HRS § 712-1200(1), 

is a petty misdemeanor. HRS § 712-1200(3) (2014). First time 

offenders face a mandatory fine of no less than $500 but no more 

than $1000, with the possibility of up to thirty days of 

imprisonment, unless the court has granted a deferred plea under 

HRS Chapter 853. HRS § 712-1200(4)(a) (2014); HRS § 853-1(c) 

(2014). Granting a DAG/DANC plea is discretionary. HRS § 853-

1(a). Under HRS § 853-4(a)(13)(V) (2014), the deferral statute 

is not applicable if the offense charged is a violation of HRS § 

712-1200(1)(b). 

 

16 We emphasize that this “as applied” analysis is appropriate because the 

amendment history of HRS § 712-1200(1) created uncertainty in the application 

of previously understood language, which in turn significantly undermined the 

legislative guidance provided by the text of the statute. 
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Ineligibility for a DAG/DANC plea means that all defendants 

charged under HRS § 712-1200(1)(b) are subject to the 

aforementioned penalties for the crime of prostitution. Without 

more specific guiding language in subsection (1)(a), it is the 

prosecutor’s charging decision that ultimately determines 

whether a defendant is charged under subsection (1)(a) or 

(1)(b), and can attempt to seek deferral, or must face the 

ordinary statutory penalty. Because the ability of first-time 

offenders to seek a DAG/DANC has significant effect on their 

potential punishment, HRS § 712-1200(1)(b) carries a harsher 

punishment than subsection (1)(a), and the third part of the 

Modica test is satisfied. 

Based on the plain language of HRS §§ 712-1200(1)(a) and 

(1)(b), as they existed at the time Petitioners were charged, we 

conclude that Petitioners’ charges violated the Modica rule.17 

The ICA erred in holding that Petitioners’ due process and equal 

protection rights had not been violated. 

D. Dismissal With Prejudice

Citing State v. Estencion, 63 Haw. 264, 625 P.2d 1040 

 

17 The potential for the Modica violation challenged by Petitioners was 

created when HRS § 712-1200(1)(b) was excluded from the DAG/DANC statute on 

April 25, 2013. See S.B. 194, 27th Leg., Reg. Sess. (2013) (amending HRS §

853-4, effective April 25, 2013). 

The 2016 amendment to HRS § 712-1200(1)(a) added the phrase “in return” 

to subsection (1)(a) to further distinguish it from subsection (1)(b). H.B. 

2561, 28th Leg., Reg. Sess. (2016). Only defendants who were otherwise 

eligible for a DAG/DANC plea and were convicted under HRS § 712-1200(1)(b) 

between April 25, 2013 and July 1, 2016 may be affected by the issue 

Petitioners present here.
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(1981), the State asserted before the ICA that the district 

court erred in dismissing the charges with prejudice, without 

engaging in “any on the record balancing of the factors 

necessary to determine whether dismissal should be with or 

without prejudice.” 

The Estencion factors must be analyzed when dismissing a 

case for violation of Hawaiʻi Rules of Penal Procedure (“HRPP”)

Rule 48. In Estencion, we adopted factors listed in the Federal 

Speedy Trial Act § 101, 18 U.S.C. § 3162(a)(1) (Supp. 1980), to 

determine whether a charge should be dismissed with or without 

prejudice for a HRPP Rule 48 violation, stating:

In determining whether to dismiss the case with or without 

prejudice, the court shall consider, among others, each of 

the following factors: the seriousness of the offense; the 

facts and the circumstances of the case which led to the 

dismissal; and the impact of a reprosecution on the 

administration of this chapter and on the administration of 

justice.

63 Haw. at 269, 625 P.2d at 1044 (quoting 18 U.S.C. § 3162(a)(1) 

(Supp. 1980)).

We have yet to set out factors for a trial court to 

consider to determine whether a criminal charge should be 

dismissed before conviction with or without prejudice based on a 

Modica violation. In general, trial courts have the inherent 

power to dismiss a charge, and although the exercise of that 

power is not limited to “extraordinary situations,” it must be 

done “upon ‘balancing the interest of the state against 
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fundamental fairness to a defendant with the added ingredient of 

the orderly functioning of the court system[.]’” State v. 

Hinton, 120 Hawai‘i 265, 277, 204 P.3d 484, 496 (2009) (quoting 

State v. Moriwake, 65 Haw. 47, 56, 647 P.2d 705, 712 (1982)). 

In State v. Fukuoka, 141 Hawaiʻi 48, 404 P.3d 314 (2017), a HRPP 

Rule 48 case, we noted that in State v. Coyaso, 73 Haw. 352, 

357, 833 P.2d 66, 69 (1992), we stated that “prejudice to the 

defendant may [also] be a relevant consideration in the trial 

court's decision to dismiss with or without prejudice” 

under HRPP Rule 48. Fukuoka, 141 Hawaiʻi at 56, 404 P.3d at 322. 

Estencion and its progeny lay out appropriate

considerations for a trial court in its determination of whether 

to dismiss a criminal charge with or without prejudice in the 

context of a pre-conviction dismissal for a Modica violation. 

We hold that in the context of a pre-conviction dismissal for a 

Modica violation, in determining whether to dismiss the case 

with or without prejudice, the court must consider each of the 

following factors: the seriousness of the offense, the facts 

and the circumstances of the case that led to the dismissal, the 

impact of a reprosecution on the administration of justice, and 

prejudice to the defendant. Estencion referred to the 

delineated factors as being “among others”; therefore, a court 

may also consider other factors it deems relevant. The court 

must, however, articulate the reasons for its decision to 
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dismiss with or without prejudice. Cf. Fukuoka, 141 Hawaiʻi at 

65, 404 P.3d at 331 (“In analyzing whether to dismiss a case 

with or without prejudice for a violation of HRPP Rule 48, the 

court must evaluate each Estencion factor and determine whether 

the balance of factors weighs in favor of permitting or 

prohibiting reprosecution.”) 

In this case, as argued by the State, the district court 

dismissed the charges with prejudice without providing any 

reasons for its decision. We therefore remand these cases to 

the district court for application of the appropriate factors 

regarding whether the charges should be dismissed with or 

without prejudice.

IV. Conclusion

For the reasons stated above, we vacate the ICA’s July 31, 

2017 judgment on appeal, filed pursuant to its June 30, 2017

SDO, which vacated the district court’s October 16, 2015 order, 

and we remand these cases to the district court for further 

proceedings consistent with this opinion.

Antoinette Lilley and /s/ Mark E. Recktenwald

James S. Tabe

(John M. Tonaki and /s/ Paula A. Nakayama

Audrey L. Stanley 

with them on the briefs) /s/ Sabrina S. McKenna

for petitioners 

 /s/ Richard W. Pollack

Brian R. Vincent 

(Keith M. Kaneshiro /s/ Michael D. Wilson

with him on the briefs) 

for respondent