State v. Satoafaiga. ( 2022 )

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Electronically Filed
Supreme Court
SCWC-XX-XXXXXXX
07-FEB-2022
09:50 AM
Dkt. 21 OP
IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
---o0o---
STATE OF HAWAIʻI,
Respondent/Plaintiff-Appellee,
vs.
VICTORIA I. SATOAFAIGA,
Petitioner/Defendant-Appellant.
SCWC-XX-XXXXXXX
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-XX-XXXXXXX; 2CPC-XX-XXXXXXX)
FEBRUARY 7, 2022
RECKTENWALD, C.J., NAKAYAMA, McKENNA, WILSON, AND EDDINS, JJ.
OPINION OF THE COURT BY RECKTENWALD, C.J.
I. INTRODUCTION
Victoria I. Satoafaiga, a former employee of the
Central Maui Boys & Girls Club (the Club), was indicted for the
sexual assault of a twelve-year-old member of the organization
(complaining witness or CW). Initially charged with four
counts, including Sexual Assault in the First Degree for the
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“sexual penetration” of the CW, she accepted a plea agreement
allowing her to plead no contest to an amended charge of Sexual
Assault in the Fourth Degree and one count of Custodial
Interference in the Second Degree. Satoafaiga moved for a
deferred acceptance of no contest (DANC) plea. The circuit
court denied the DANC motion and sentenced her to a one-year
prison sentence. She appealed the denial of her DANC motion,
and the Intermediate Court of Appeals (ICA) affirmed.
Satoafaiga now asks us to reverse the ICA and the circuit
court’s decisions and remand to the circuit court with
instructions to enter an order granting the DANC motion nunc
pro tunc to the date of her sentencing.
Satoafaiga’s appeal requires us to decide whether it
was proper for the circuit court to take into account an
alleged act of “sexual penetration” when the only sexual-
assault charge she pleaded to by definition excluded acts of
sexual penetration. We hold that the circuit court’s
consideration of sexual penetration under these circumstances
constituted an abuse of discretion. Satoafaiga pleaded no
contest to Sexual Assault in the Fourth Degree, which
criminalizes “sexual contact.” Hawai‘i Revised Statutes (HRS)
§ 707-733(1)(a) (Supp. 2016). “Sexual contact” is defined as
“any touching, other than acts of ‘sexual penetration’, of the
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sexual or other intimate parts of another.” HRS § 707-700
(Supp. 2016) (emphasis added). Thus, Satoafaiga’s no contest
plea to Sexual Assault in the Fourth Degree excluded any
allegation of sexual penetration. Under these circumstances,
the circuit court abused its discretion when it improperly
considered an allegation of sexual penetration in denying her
DANC motion. We therefore vacate the ICA’s judgment on appeal
to the extent it affirmed the denial of the DANC motion and
vacate the circuit court’s judgment of conviction inasmuch as
it denied the motion for a DANC.1 We remand for reconsideration
of Satoafaiga’s DANC motion consistent with this opinion.
As to Satoafaiga’s remaining arguments, we affirm the
judgments of the ICA and the circuit court. The circuit court
did not otherwise exceed the bounds of reason or abuse its
discretion in ruling on her motion.
1 Satoafaiga has never challenged the trial court’s sentencing
decision. Therefore, even though we remand to reconsider the DANC decision,
we leave the sentence undisturbed.
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II. BACKGROUND
A. Factual Background2
Satoafaiga was employed as a director of the Boys and
Girls Club of Central Maui between August 2016 and April 2017.
The CW was a twelve-year-old living with her Aunt and Uncle,
who had raised her since she was three years old. She was a
member of the Club, part of a network of clubhouses that
provides recreational opportunities and a safe haven for
children of different ages.
Aunt and Uncle were first alerted to an inappropriate
relationship between Satoafaiga and the CW when they discovered
explicit text messages on the CW’s phone. Near midnight on
April 16, 2017, Uncle noticed that the CW was not asleep and
appeared to be hiding under her covers. He asked her to hand
over her phone. Uncle saw a text message exchange with an
unknown person saved as “V.$(Mom),” who sent the CW explicit
sexual messages and stated in one message, “I love you baby.”
The person had also sent the CW explicit images. Uncle asked
2 The facts recounted here are drawn from the presentence
investigation (PSI) report prepared for the circuit court and the findings
of fact issued by the circuit court following a motion to suppress cell-
phone evidence.
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who the person was and the CW told him it was Satoafaiga.3
Uncle was familiar with Satoafaiga as he had met her at the
Club.
Three days later, the CW was interviewed at the
Children’s Justice Center in Wailuku. The CW related that she
had gotten to know Satoafaiga after Satoafaiga expressed
concern about the CW and told her to reach out if she needed.
Their relationship progressed from there.4
The CW described two incidents of sexual assault.
First, some months before the CW was interviewed, Satoafaiga
asked the CW to help her retrieve some snacks upstairs at the
Club; while there, she grabbed the CW by the hips and then
kissed her on the lips, over her protest. Some time later,
over spring break in 2017, the CW claimed that, while the two
of them were alone together in an upstairs area at the Club,
3 Warrants were later executed for records from the CW’s phone as
well as Satoafaiga’s personal cell phone and a cell phone issued to her by
the Club, which confirmed that the exchange was in fact with Satoafaiga.
4 Satoafaiga described her relationship with the CW in a letter to
the court. She recalled expressing concerns to the CW about her wellbeing
and encouraging her to reach out if she needed. She claimed that the CW
“would, from that day forward, hang out in my office and often asked
questions about my personal life.” According to Satoafaiga, “over several
weeks . . . [the CW] was becoming somewhat obsessive with hanging out around
me.”
She also acknowledged the text messages she exchanged with the
CW: “I did develop what later came to be a[n] inappropriate friendship with
[the CW] and I understand that it was wrong. Inappropriate text messages
were sent and and [sic] received and I am truly ashamed and embarrassed of
my inappropriate conduct.”
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Satoafaiga digitally penetrated her under her clothing. The CW
pushed her off and left the Club.5 Police later learned from
Uncle that Satoafaiga gave the CW a sweater and two pairs of
loop earrings as gifts. Satoafaiga resigned from the Club on
April 27, 2017.
Pursuant to several search warrants, the Maui Police
Department (MPD) obtained phone records from the CW and
Satoafaiga’s phones.6 The warrants revealed that Satoafaiga
exchanged approximately 15,978 text messages with the CW over a
roughly four-month period culminating in April 2017. Some of
these text messages were sexually explicit.
Months later, on October 27, 2017, Aunt and Uncle
contacted the MPD to report that the CW had run away. Uncle
had gone to the Club to pick up the CW but was not able to
locate her. The CW later told Aunt and Uncle that she had been
with Satoafaiga and not at the Club during the daytime on
October 27. Satoafaiga took her to the Kahului Break Water
5 Satoafaiga maintained throughout these proceedings that she did
not sexually assault the CW. In a letter to the circuit court she expressed
remorse for developing an inappropriate relationship with the CW but
asserted that she was “not a rapist or a pedophile” and that she accepted
the plea offer to avoid the risk of conviction for the first-degree offense.
And in her ICA reply brief, she asserted that through this statement, she
had “categorically denied ‘digital penetration.’”
6 Satoafaiga moved to suppress the results of the search warrants
on her work and personal phones, including the text messages. The circuit
court denied this motion.
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where she made several hickeys on the CW’s chest. When the CW
returned to the Club, she noticed Uncle waiting for her and ran
away so she would not get in trouble. Finally, at about 4 a.m.
the following morning, Satoafaiga’s partner called Aunt to tell
her the CW was at their residence. Aunt contacted the MPD, and
the MPD escorted her to the residence.
Satoafaiga’s account of that evening differed from
Aunt and Uncle’s. Satoafaiga and her partner claimed they had
gone out for a “Ladies Night” around 9 p.m. on October 27.
When they came home at about 2 a.m., they discovered the CW
there; after questioning her about how she knew their address,
they got Aunt’s number from the CW and called her.
B. Procedural History
1. Circuit court proceedings7
A grand jury indicted Satoafaiga on four counts.
Count One alleged that Satoafaiga committed Sexual Assault in
the Third Degree by kissing the CW on the lips, in violation of
HRS § 707-732(1)(b) (2014).8 Count Two alleged that she
committed Sexual Assault in the First Degree by inserting her
7 The Honorable Rhonda I.L. Loo presided.
8 HRS § 707-732(1)(b) states, “A person commits the offense of
sexual assault in the third degree if: . . . The person knowingly subjects
to sexual contact another person who is less than fourteen years old or
causes such a person to have sexual contact with the person[.]”
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finger into the CW’s vagina, in violation of HRS
§ 707-730(1)(b) (2014).9 Count Three alleged that she committed
Attempted Sexual Assault in the Third Degree on October 27,
2017, presumably a reference to the Kahului Break Water
incident, in violation of HRS §§ 705-500 (2014) and 707-
732(1)(b).10 And Count Four alleged that she committed
Custodial Interference in the Second Degree on the same date,
in violation of HRS § 707-727(1)(a) (2014).11 The circuit court
later dismissed Count Three for failing to provide Satoafaiga
with adequate notice.
The prosecutor offered Satoafaiga a plea agreement.
The prosecution offered to dismiss Count One with prejudice and
to amend Count Two to a charge of Sexual Assault in the Fourth
9 HRS § 707-730(1)(b) states, “A person commits the offense of
sexual assault in the first degree if: . . . The person knowingly engages in
sexual penetration with another person who is less than fourteen years
old[.]”
10 HRS § 705-500(1)(b) states, in relevant part: “A person is
guilty of an attempt to commit a crime if the person: . . . Intentionally
engages in conduct which, under the circumstances as the person believes
them to be, constitutes a substantial step in a course of conduct intended
to culminate in the person’s commission of the crime.”
11 HRS § 707-727(1)(a) states, “A person commits the offense of
custodial interference in the second degree if: (a) The person intentionally
or knowingly takes, entices, conceals, or detains a minor knowing that the
person has no right to do so[.]”
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Degree under HRS 707-733(1)(a) (Supp. 2016).12 Count Four
remained unchanged. Satoafaiga accepted the plea deal,
agreeing to enter a plea of either guilty or no contest to
Count Four and the amended Count Two and stipulating to a
factual basis to support those charges. In conjunction with
her plea agreement, Satoafaiga moved to defer the acceptance of
her no contest plea.
The circuit court allowed her to withdraw her plea of
not guilty and enter a plea of no contest. The court ordered a
presentence investigation (PSI) report to be prepared.
The court convened on January 22, 2020 to consider
the DANC motion and sentencing. Satoafaiga urged the court to
find that the three prongs of the HRS § 853-1 (2014) analysis,
governing DANC and deferred acceptance of guilty (DAG) plea
motions, were met: (1) she voluntarily pleaded guilty or no
contest before trial, (2) she was not likely to engage again in
a criminal course of conduct, and (3) the ends of justice and
the welfare of society did not require that she presently
12 HRS § 707-733(1)(a) states, “A person commits the offense of
sexual assault in the fourth degree if: (a) The person knowingly subjects
another person, not married to the actor, to sexual contact by compulsion or
causes another person, not married to the actor, to have sexual contact with
the actor by compulsion[.]”
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suffer the penalty imposed by law.13 First, she pointed to “the
excellent presentence report and the character references” from
friends, family, and coworkers that it included. She argued
that her relative youth – she was in her late twenties at the
time – and the fact that she had no arrest record weighed
toward deferral. Satoafaiga referenced the “Assessment Factors
for Sentencing” in the PSI report, which found that she had
previously led a “law-abiding life” and that her “character and
attitude and history” indicated that she was “unlikely to
commit another crime.” She next pointed to the legislative
policy behind HRS § 853-1, which aimed to provide “first-time,
accidental, or situational offenders” with an opportunity to
maintain a clean record. In light of these factors, defense
13 HRS § 853-1(a) provides:
Upon proper motion as provided by this chapter:
(1) When a defendant voluntarily pleads guilty or
nolo contendere, prior to commencement of trial,
to a felony, misdemeanor, or petty misdemeanor;
(2) It appears to the court that the defendant is
not likely again to engage in a criminal course
of conduct; and
(3) The ends of justice and the welfare of society
do not require that the defendant shall
presently suffer the penalty imposed by law,
the court, without accepting the plea of nolo contendere or
entering a judgment of guilt and with the consent of the
defendant and after considering the recommendations, if
any, of the prosecutor, may defer further proceedings.
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counsel asked the court to let her “prove to you that she’s
entitled to have her record free.”
The State argued that deferral would not be
appropriate for the sexual assault of a minor by a person in a
position of authority. It characterized Satoafaiga’s crime as
not an “accidental” or “situational” one but rather a crime
committed over a long period that bore “grooming aspects.”14
The court found that the first prong of the HRS
§ 853-1 analysis was met because Satoafaiga voluntarily pleaded
no contest before trial. Turning to the latter two prongs, the
court first noted that Satoafaiga, at twenty-seven, had been
more than twice the age of the CW and “should have known twice
as much. Twice as mature, allegedly.” The court acknowledged
the “glowing” letters from friends, family, and colleagues in
the PSI report but pointed out that Satoafaiga’s relationship
with the CW was “a different kind of relationship. It was a
14 Satoafaiga argued in the circuit court that by asserting
“[t]here are certain crimes that do not deserve a deferral,” the State
improperly implied that Satoafaiga was ineligible for deferred acceptance of
her plea based on the offense she committed. However, when defense counsel
brought up Satoafaiga’s eligibility for deferred acceptance, the court
agreed she was eligible, and the prosecutor clarified she was not arguing
against eligibility.
Satoafaiga pressed this argument on appeal, but it was rejected
by the ICA. State v. Satoafaiga, 149 Hawai‘i 103, 482 P.3d 566, 2021 WL
928443 at *5 (App. Mar. 11, 2021) (SDO). Because we see no indication in
the record that the trial court believed Satoafaiga to be ineligible for
deferred acceptance of her plea, we do not address this argument further.
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child with an adult. It was with someone who’s supposed to be
her mentor[.]”
The court next turned to whether Satoafaiga had taken
responsibility for her actions: “Have you truly taken
responsibility and apologized? I guess does it appear that
you’re unlikely to engage in such a criminal course of conduct
again?” It referred to a letter to the court included in the
PSI report where Satoafaiga stated “[i]nappropriate text
messages were sent and and [sic] received and I am truly
ashamed and embarrassed of my inappropriate conduct” and “I am
completely remorseful that I had engaged in inappropriate text
messaging with [the CW].” The court pointed out, ”Well, you do
admit in your letter that you engaged in inappropriate text
messages.” However, the court went on:
But this was more than text messaging. It was
penetration with a finger to a vagina. And the problem
is, is that inappropriate text messaging might be a few
messages here and there or maybe even a couple of
messages here and there, but 15,978 messages were
exchanged. . . . It means there was an exchange going on
between the two of you. So talk about some inappropriate
behavior.
Noting the number of messages – almost 16,000 over
approximately four months – and their explicit content,15 the
15 The text messages discovered as a result of the execution of the
cell-phone warrants documented at least three different sexually explicit
conversations on three different days, including the April 16, 2017 exchange
that ultimately alerted Aunt and Uncle to the relationship. The earliest of
these documented exchanges took place on March 18, 2017.
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court concluded that this was not a “one-time incident” and
“definitely more than inappropriate text messaging.” The court
next contrasted Satoafaiga’s behavior with the mission of the
Club. Finally, it concluded:
[E]verything you did to her, besides the digital
penetration and the custodial interference, dealing with
taking her out to the breakwater when she was supposed to
be going home, and her guardians come to pick her up from
the Boys & Girls Club and she’s not there, and they’re
going crazy, where’s my kid, where’s my daughter, looking
all over for her. And at two o’clock or four o’clock the
next morning, finally a phone call comes in from your
partner . . . letting [Aunt] know that the child is at
your house. So she’s gone for, I don’t know, 4:30 in the
afternoon the day before to like 3:00 or 4:00 a.m. the
next morning. She’s in your -- she’s in your trust,
she’s in your care this whole time. You were responsible
for her, and she ends up with hickeys on her chest during
this time. I mean, talk about a negative influence on a
child.
The court found Satoafaiga was likely to reoffend and
that the ends of justice and the welfare of society required
that she should presently suffer the penalty imposed by law.
Consequently, it denied the DANC motion.
The court next turned to sentencing. The State
characterized Satoafaiga’s letter in the PSI report as
demonstrating “complete denial over the facts of the
relationship” and claimed that she still “is not taking full
responsibility.” It argued that she used the CW’s
vulnerabilities to “target[] a struggling person, a struggling
child.” Satoafaiga responded by repeating the positive
assessment in the PSI report, pointing to her stable employment
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and support from family and friends. She also pointed out in
response to the court’s mention of “digital penetration” during
the DANC discussion that:
[T]he defendant was able to get a plea agreement, and the
government had dismissed the felony. So with all due
respect, there is no allegation of digital penetration,
and to the extent that the Court may have been misled
about that, you know, I am -- want to bring it to the
Court’s attention that that is inaccurate, your Honor.
She pleaded no contest.
She argued that her purported lack of remorse should
not be used against her. Although she maintained she had taken
responsibility, she argued that “[a] person can choose to
accept the government’s plea even if they’re innocent” and
that, in light of her no-contest plea, the court should not use
her “lack of accepting full responsibility as a criteria.”
Defense counsel concluded that “[s]he has a history of no
criminal involvement whatsoever. She’s a good person who made
a bad mistake[.]” Finally, Satoafaiga personally addressed the
court, acknowledging that she “let a lot of people down” but
maintaining “a lot of what has been said is also not true.”
In imposing sentence, the court again mentioned the
volume and inappropriate content of the text messages between
Satoafaiga and the CW. It acknowledged defense counsel’s
argument with respect to the felony count having been
dismissed:
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So the act that took place -- and I understand, Mr.
Aluli, it’s not sexual assault in the first degree.
Thank you for correcting me. It’s sexual assault in the
fourth degree. But it still occurred at the Boys & Girls
Club, I think in the upper room. This inappropriate
activity between you and the juvenile, you and the minor
did happen. It happened.
Pointing to the text messages and inappropriate
pictures as well as the gifts Satoafaiga allegedly provided the
CW, the court observed that “grooming is what comes to mind
here.” The court sentenced Satoafaiga to a one-year prison
term for each count, to run concurrently, with credit for time
served.
2. ICA proceedings
Satoafaiga appealed the denial of her DANC motion.
Her appeal raised a number of arguments, all aimed at
demonstrating that the trial court abused its discretion when
it denied the motion. She argued, first, that the trial
court’s finding that she was likely to reoffend exceeded the
bounds of reason. Further, it erred by considering the
“uncharged conduct” of sexual penetration and compounded the
error by considering her lack of remorse for that conduct. The
illicit text messages exchanged with the CW, she argued, were
irrelevant. Finally, the court erred by disregarding the
public policy behind HRS chapter 853, which demands leniency
for offenders like Satoafaiga.
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In a summary disposition order, the ICA first
found that the circuit court did not abuse its discretion by
denying Satoafaiga’s DANC motion. State v. Satoafaiga, 149
Hawai‘i 103, 482 P.3d 566, 2021 WL 928443 at *4 (App. Mar. 11,
2021) (SDO). It rejected the argument that the trial court was
barred from considering digital penetration as uncharged
conduct, because despite the amendment of Count II, the
indictment still alleged an act of penetration. Id. With
respect to Satoafaiga’s argument that the court improperly used
her failure to admit responsibility against her, the ICA held,
“It was within the ambit of the court’s authority to consider
Satoafaiga’s lack of remorse, or lack of taking
responsibility[.]” Id. at *5.
Satoafaiga sought review in this court; her arguments
in her application for certiorari largely repeat her
multifaceted attack on the circuit court’s denial of her DANC
motion.
III. STANDARD OF REVIEW
The grant or denial of a motion for a DANC plea is within
the discretion of the [trial] court and will not be
disturbed unless there has been manifest abuse of
discretion. State v. Tom, 69 Haw. 602, 603, 752 P.2d 597,
597 (1988). “An abuse of discretion occurs if the trial
court has clearly exceeded the bounds of reason or has
disregarded rules or principles of law or practice to the
substantial detriment of a party litigant.” State v.
Davia, 87 Hawai‘i 249, 253, 953 P.2d 1347, 1351 (1998)
(internal quotation marks and citation omitted).
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State v. Klie, 116 Hawai‘i 519, 521-22, 174 P.3d 358, 360-61
(2007).
IV. DISCUSSION
A. The Circuit Court Did Not Exceed the Bounds of Reason by
Finding Satoafaiga Likely to Reoffend
Satoafaiga argues that because HRS chapter 853 seeks
to benefit defendants with clean records like her, the court
erred when it nevertheless denied her DANC motion. The court’s
decision exceeded the bounds of reason, she argues, because as
a first-time offender and in light of the favorable factors in
the PSI report, she was not likely to reoffend. Citing State
v. Medeiros, she asserts that the court abused its discretion
by denying her motion for a DANC solely based on the elements
of the offense she committed. 146 Hawai‘i 1, 14, 454 P.3d 1069,
1082 (2019). If uncorrected, the ICA decision would
“completely nullify[] Hawai‘i’s [DANC] criminal procedure,” as
every defendant would be ineligible based solely on the
commission of their offense. The legislature authorized the
deferred acceptance of pleas in HRS chapter 853 in order to
provide certain defendants, “particularly . . . first time,
accidental, or situational offenders,” with “the opportunity to
keep [their] record free of a criminal conviction.” 1976 Haw.
Sess. Laws Act 154, § 1 at 279; see also State v. Putnam, 93
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Hawai‘i 362, 368, 3 P.3d 1239, 1245 (2000) (discussing the
legislative history). Especially where youth are involved,
eventual dismissal may prove “more conducive to offender
rehabilitation and crime prevention than the deterrent effects
of a conviction and sentence” with their accompanying stigma
and career roadblocks. 1976 Haw. Sess. Laws Act 154, § 1 at
279.
The decision to grant a motion for a deferred
acceptance “is properly within the discretionary province of a
trial judge.” State v. Martin, 56 Haw. 292, 294, 535 P.2d 127,
128 (1975). However, there are certain guidelines in making
the decision. Courts “should always consider all of the
possible alternatives,” whereas “blind adherence” to
predetermined rules fails to provide “enlightened and just
resolve” of the motion for a DANC. Id. Thus, while courts
have “wide latitude in the selection of penalties,” State v.
Murray, 63 Haw. 12, 25, 621 P.2d 334, 342 (1980), that
discretion is not limitless and may not be exercised in a
manner that is arbitrary and capricious, Martin, 56 Haw. at
294, 535 P.2d at 128-29 (finding sentencing court “arbitrarily
and capriciously” denied a motion for a DAG and reversing); see
also Medeiros, 146 Hawai‘i at 11, 454 P.3d at 1079 (overturning
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denial of a motion for a DANC as an abuse of discretion).16
According to Satoafaiga, the finding that she was
likely to reoffend clearly exceeded the bounds of reason: “The
trial court’s finding of future criminality, and the ICA’s
affirmation of that finding, completely disregarded
Petitioner’s lack of criminal history as being the best
predictor of future behavior.” Satoafaiga’s lack of a criminal
record, together with all the other factors weighing in her
favor, made the finding that she was likely to reoffend an
abuse of discretion. Moreover, denying the motion for a DANC
belied HRS chapter 853’s legislative policy of benefiting
youthful, first-time offenders.
To the extent that Satoafaiga’s argument is that all
first-time offenders who commit DANC-eligible crimes are
entitled to deferred acceptance, this argument has no merit.
HRS § 853-1 provides that where the statute’s requirements are
met, a trial court “may defer further proceedings.” (Emphasis
added.) The import of the word “may” in granting discretion to
the trial court is clear. Further, the same legislative
16 Satoafaiga argues that the ICA applied the incorrect standard of
review when it stated, “[W]e cannot conclude that the Circuit Court’s
determination that Satoafaiga did not satisfy the second and third criteria
was arbitrary or capricious.” Satoafaiga, 2021 WL 928443 at *4 (emphasis
added). But this language appears to come from Martin, wherein this court
explained the circumstances under which a court abuses its discretion in
granting or denying a motion for a DANC. 56 Haw. at 294, 535 P.2d at 128.
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history that Satoafaiga cites in support of her position shows
that HRS § 853-1 sought “to establish a means whereby a court
in its discretion may defer acceptance” of a plea. Putnam,
93 Hawai‘i at 367-68, 3 P.3d at 1244-45 (emphasis added)
(quoting 1976 Haw. Sess. Laws Act 154, § 1 at 279). The
legislature easily could have made all or some first-time
offenders automatically entitled to a DANC; instead, it chose
to grant courts discretion to decide when a DANC is merited.
Because Satoafaiga’s interpretation of HRS chapter 853 runs
counter to the statute’s clear language and the legislative
policy behind it, we decline to adopt it.
Moreover, the court did not abuse its discretion by
finding Satoafaiga likely to reoffend notwithstanding her lack
of criminal history and other factors weighing in her favor.
The court explicitly considered Satoafaiga’s age but balanced
it against the age of the CW. It pointed to the nearly 16,000
text messages between Satoafaiga and the CW over an
approximately four-month period to conclude that the offense
was not a one-time, accidental, or situational incident. In
other words, the circuit court did not disregard public policy;
rather, in weighing the HRS § 853-1 factors and considering the
record, it determined that public policy supported the denial
of the motion. That there were factors on both sides of the
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scale does not mean the circuit court “clearly exceeded the
bounds of reason” and abused its discretion. Klie, 116 Hawai‘i
at 522, 174 P.3d at 361. The DANC determination requires
balancing countervailing factors, which is what the circuit
court did here. See State v. Buchanan, 59 Haw. 562, 563, 584
P.2d 126, 127 (1978) (“However persuasive we might regard
appellant’s presentation in support of the motion, the reasons
expressed by the court in denying the motion are relevant and
significant. No abuse of discretion appears.”). There was
sufficient basis in the record for the circuit court to find
that Satoafaiga was likely to reoffend and that the ends of
justice and the welfare of society required her immediate
punishment.
For the same reasons, Satoafaiga’s argument that the
circuit court’s decision violated Medeiros fails. In Medeiros,
the defendant pleaded no contest to two offenses related to
night hunting and then moved for a DANC. 146 Hawai‘i at 4-5,
454 P.3d at 1072-73. In denying the DANC motion, the circuit
court noted the manner in which the defendant committed the
crime (for example, wearing a camouflage T-shirt) and the
apparently inconsistent statements he made to officers when
apprehended. Id. at 10-11, 454 P.3d at 1078-79. We noted that
Medeiros was a youthful, first-time offender and that he
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apologized to the court and took responsibility for his
offenses. Id. On this record, the circuit court abused its
discretion by denying the motion for a DANC. Id. In her
concurrence, Justice Nakayama explained that the circuit
court’s reasons for denying Medeiros’s motion for a DANC were
“merely elements of the offenses . . . to which Medeiros pled.”
Id. at 14, 454 P.3d at 1082 (Nakayama, J., concurring).
As an initial matter, Medeiros does not foreclose
consideration of the circumstances of an offense to assess a
motion for a DANC. In fact, we have upheld denials of motions
for DANCs and DAGs based, at least in part, on this factor.
See Buchanan, 59 Haw. at 563, 584 P.2d at 127 (“The record in
the present case shows consideration of the [DAG] motion on its
merits, and denial of the motion only after review by the court
of the circumstances of the offense as well as testimony
offered by appellant.” (emphasis added)). Our holding in
Medeiros instead prohibits courts from denying a motion for a
DANC based on facts that would apply to “any other DANC plea-
eligible defendant charged with the same underlying offenses.”
146 Hawai‘i at 11, 454 P.3d at 1079.
Here, as discussed, the circuit court went beyond the
fact that Satoafaiga allegedly subjected the CW to “sexual
contact” in denying the DANC motion. Instead, it considered
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among other factors Satoafaiga’s age relative to the CW, her
position of authority and trust, the thousands of text messages
between the two over approximately four months, the later
runaway incident, and Satoafaiga’s long-term negative influence
on the CW. Contrary to Satoafaiga’s assertions, these are not
elements of the offense or factors shared by all defendants who
plead guilty or no contest to Sexual Assault in the Fourth
Degree. Rather, they are circumstances particular to
Satoafaiga’s situation, which the trial court properly weighed
against the mitigating factors she cited. Thus, there was no
violation of the rule we laid out in Medeiros.
B. The Court Abused Its Discretion by Considering Conduct –
Sexual Penetration – that Was Excluded by the Offense
Satoafaiga Pleaded to
Although the court did not abuse its discretion in
weighing the HRS § 853-1 factors, it abused its discretion when
it considered conduct excluded by one of the offenses
Satoafaiga pleaded to.
Satoafaiga argues that the circuit court should not
have held her responsible for the “uncharged conduct” of sexual
penetration. Although penetration was charged in the
indictment and supported by evidence in the record, we agree
that it should not have been considered by the circuit court in
weighing the DANC motion. The charge to which Satoafaiga
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ultimately pleaded no contest – Sexual Assault in the Fourth
Degree - contained as a necessary element “sexual contact.”
HRS § 707-733(1)(a). In turn, “sexual contact” is defined by
statute to mean “any touching, other than acts of ‘sexual
penetration’, of the sexual or other intimate parts of
another.” See HRS § 707-700 (emphasis added). Consequently,
Satoafaiga’s plea of no contest to Sexual Assault in the Fourth
Degree necessarily excluded the allegation that she committed
sexual penetration. Thus, the circuit court abused its
discretion by considering conduct that, per her plea,
Satoafaiga logically could not have committed.
In examining when a court abuses its discretion in
denying a DANC motion, we look to our sentencing cases for
guidance. While not controlling in the DAG/DANC context, these
cases provide a useful starting point – especially, as here,
where there are no DAG/DANC cases directly on point.17
17 Both the sentence and the decision to defer it are decisions
within a judge’s discretion; both determine whether and how a defendant will
be punished. See State v. Hussein, 122 Hawai‘i 495, 509-10, 229 P.3d 313,
327-28 (2010), as corrected (Apr. 28, 2010) (reviewing the factors judges
must consider in imposing a sentence); Martin, 56 Haw. at 294, 535 P.2d at
128 (describing deferred acceptance as part of the “sentencing process” and
stressing the importance of considering all available alternatives).
Moreover, both sentencing and the DANC decision turn on the defendant’s
culpability; the likelihood of reoffending; and the public interest in
safety, rehabilitation, and retributive justice. Compare HRS § 853-1 with
HRS § 706-606 (2014).
Accordingly, the ICA was incorrect to distinguish a case – State
v. Kamana‘o, 103 Hawai‘i 315, 82 P.3d 401 (2003) - based on the fact that it
arose in the sentencing context. The ICA relied on State v. Oshiro, 69 Haw.
(continued . . .)
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While courts have broad discretion in the sentencing
context, they abuse that discretion when they base their
decisions on “unsubstantiated allegation[s]” of uncharged
crimes. State v. Vellina, 106 Hawai‘i 441, 450, 106 P.3d 364,
373 (2005). In State v. Nunes, we held that punishing a
defendant for uncharged crimes “raises serious constitutional
questions”:
While a court has broad discretion in imposing a sentence,
and can consider the candor, conduct, remorse and
background of the defendant as well as the circumstances of
the crime and many other factors, a judge cannot punish a
defendant for an uncharged crime in the belief that it too
deserves punishment.
72 Haw. 521, 525, 824 P.2d 837, 840 (1992).
In Nunes, the circuit court sentenced the defendant
in part based on its inference that he asked the complaining
witness to lie for him. We noted that “there is nothing in the
record before us that would support a conclusion that
defendant’s conduct toward other witnesses supports increasing
his sentence.” Thus, it was improper and in violation of the
defendant’s constitutional rights to sentence him on that
(. . . continued)
438, 442, 746 P.2d 568, 570 (1987), for the proposition that “the denial of
a motion for DANC is neither a conviction nor a sentence nor a punishment.”
Satoafaiga, 2021 WL 928443 at *5. Of course, the ICA was correct in noting
that a DANC is not a sentence. In Oshiro, this distinction was outcome
determinative because the State only had statutory authority to appeal
sentences, and not grants of DANCs or DAGs. 69 Haw. at 442-43, 746 P.2d at570-71 (citing HRS § 641–13 (1985)). In general, however, we find that
sentencing cases are persuasive, though not controlling authority, in the
DAG/DANC context.
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basis. Id. Similarly, in Vellina, we held that the circuit
court clearly exceeded the bounds of reason when it imposed
consecutive terms based on the prosecutor’s allegation – with
no basis in the record – that the defendant transferred
firearms he stole to a drug dealer. 106 Hawai‘i at 450, 106
P.3d at 373.
Likewise, a court may not base its sentencing
decision on conduct for which the defendant was acquitted.
State v. Koch, 107 Hawai‘i 215, 225, 112 P.3d 69, 79 (2005)
(holding sentencing court could not consider allegations of
drug dealing when jury acquitted the defendant of ”dealing
charges”). Other jurisdictions have joined Hawai‘i in holding
that once a jury has rendered a verdict of acquittal, the
sentencing court cannot consider the allegations underlying the
acquitted counts. See, e.g., State v. Melvin, 258 A.3d 1075,
1087-1090, 1093-94 (N.J. 2021) (reviewing state and federal
authority and holding that the sentencing court may not
consider conduct excluded by a jury verdict).
Here, given the specific elements of the offense to
which Satoafaiga pleaded no contest, the court was precluded
from considering allegations of sexual penetration. Normally,
a lesser-included offense does not exclude the greater
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offense.18 Where two offenses differ only in severity, or
because one contains an additional element, one can logically
commit both in the same act; committing the lesser offense does
not exclude the possibility that one has also committed the
greater one. This is the normal understanding of included
offenses.
Not so with Sexual Assault in the First Degree and
Sexual Assault in the Fourth Degree. To be guilty of fourth-
degree sexual assault under HRS § 707-733(1)(a), one must
commit an act of sexual contact, defined as “any touching,
other than acts of ‘sexual penetration.’” HRS § 707-700. But
in order to be convicted of first-degree sexual assault, one
must commit an act of sexual penetration. HRS § 707-730. One
cannot logically commit, at the same time, an act of sexual
18 HRS § 701-109(4) (2014) defines lesser-included offenses as
follows:
A defendant may be convicted of an offense included in
an offense charged in the felony complaint, indictment,
or information. An offense is so included when:
(a) It is established by proof of the same or less
than all the facts required to establish the
commission of the offense charged;
(b) It consists of an attempt to commit the
offense charged or to commit an offense
otherwise included therein; or
(c) It differs from the offense charged only in
the respect that a less serious injury or risk
of injury to the same person, property, or
public interest or a different state of mind
indicating lesser degree of culpability
suffices to establish its commission.
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penetration and an act “other than [an] act[] of ‘sexual
penetration.'”19 The fourth-degree offense may, depending on
the circumstances, be a lesser-included offense of the first-
degree offense because it entails a less serious injury or risk
to the complainant. See State v. Malave, 146 Hawai‘i 341, 351,
463 P.3d 998, 1008 (2020), as amended (Apr. 22, 2020) (holding
sexual contact “carries a less serious injury or risk” than
sexual penetration). But nonetheless, in this instance, the
lesser-included offense necessarily excludes the greater
offense.20
Thus, as in Nunes and Vellina, here, the circuit
court erred by punishing Satoafaiga for conduct she could not
properly be held accountable for. Unlike in those cases, there
19 The exemptive language in the definition of sexual contact was
added as part of a redrafting that aimed to supersede this court’s opinion
in State v. Mueller, 102 Hawai‘i 391, 395, 76 P.3d 943, 947 (2003), which
required prosecutors to prove some penetration, however slight, to convict a
defendant of first-degree sexual assault involving an act of cunnilingus.
2004 Haw. Sess. Laws Act 61, §2 at 302-03; S. Stand. Comm. Rep. No. 3121, in
2004 Senate Journal, at 1558. However, the Mueller court suggested that a
Modica problem would result if cunnilingus could be penalized, on its own,
as both sexual contact and sexual penetration. See Mueller, 102 Hawai‘i at
398-97, 76 P.3d at 948-49; State v. Modica, 58 Haw. 249, 250–51, 567 P.2d
420, 421–22 (1977). Thus, the exemptive language in the definition of
sexual contact may have seemed necessary to avoid this result. In any case,
because the language of HRS § 707-700 admits no interpretation other than
the one Satoafaiga gives it, we read it to exclude acts of sexual
penetration from any sexual-contact offense.
20 For this reason, although the ICA was correct to note that
Sexual Assault in the Fourth Degree may be a lesser-included offense of
Sexual Assault in the First Degree, it erred when it noted that “necessarily
any allegation sufficient to establish the latter will also establish the
former.” Satoafaiga, 2021 WL 928443 at *4 n.5.
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was support in the record for the conduct Satoafaiga was
penalized for – the alleged act of sexual penetration. But
that evidence was essentially negated to the extent it could
not comport with her plea. We find this case to be analogous
to Koch, where we held that the circuit court abused its
discretion when it “assumed that Koch had engaged in unlawful
conduct of which he had been expressly acquitted.” 107 Hawai‘i
at 225, 112 P.3d at 79. Once the jury acquits a defendant, the
conduct underlying the acquitted counts cannot be considered.
Likewise, once a defendant enters a valid plea that becomes the
basis for their conviction, the court may not consider conduct
logically excluded by that plea. Thus, by denying Satoafaiga’s
DANC motion in part based on an act of penetration, the circuit
court disregarded rules or principles of law or practice to her
substantial detriment.21
21 The State cited State v. Lucas, 141 Hawai‘i 146, 406 P.3d 369,
2017 WL 5899894 (App. Nov. 30, 2017), for the proposition that:
[T]here is a distinction between improperly considering
uncharged conduct for purposes of sentencing, and properly
considering the same for purposes of ruling on a DANC
motion. Thus, even if the Circuit Court had considered
uncharged conduct in ruling on [Satoafaiga]’s DANC motion,
doing so would not have been an abuse of discretion.
(Citation omitted.)
However, as discussed, sentencing cases have persuasive value in
the DANC context. Here, the circuit court improperly considered conduct
excluded by Satoafaiga’s offense of conviction, requiring vacatur of the
denial of her DANC motion.
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This argument holds notwithstanding that Satoafaiga
stipulated to a factual basis to support the charges she
pleaded to. The State argues, and the ICA held, that because
the only allegation underlying Count II was an act of sexual
penetration, Satoafaiga stipulated to that act and the trial
court properly considered it. See Satoafaiga, 2021 WL 928443at *4 (“The plea agreement further provided, inter alia, that
Satoafaiga . . . agreed to a factual basis to support the
charges in Count II . . . . There was no other factual
allegation or conduct charged in Count II.” (footnote
omitted)).
We disagree. A plea of no contest does not require
the defendant to admit guilt. State v. Merino, 81 Hawai‘i 198,
217, 915 P.2d 672, 691 (1996) (citing State v. Gomes, 79 Hawai‘i
32, 33 n.3, 897 P.2d 959, 960 n.3 (1995)); see also Gomes,
79 Hawai‘i at 38 & n.12, 897 P.2d at 965 & n.12 (noting that
although the defendant stipulated to a factual basis, he did
not explicitly admit that he committed the charged offenses and
noting the “subtle distinction between a plea of guilty and a
plea of no contest”). Unlike with a guilty plea, there is no
requirement that the court establish a factual basis for a no
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contest plea.22 State v. De Guair, 108 Hawai‘i 179, 191, 118
P.3d 662, 674 (2005). Satoafaiga’s stipulation only admits
that there is “a factual basis to support these charges”; it
does not admit to the particular facts alleged by the
indictment. Thus, Satoafaiga’s stipulation does not negate the
effect of HRS §§ 707-700 and 707-733 to preclude consideration
of sexual penetration.
While it is not entirely clear from the record what
weight the trial court gave to the alleged act of penetration,
it is clear that it factored into the court’s decision. In
considering the DANC motion, following a discussion of the
explicit text messages between Satoafaiga and the CW, the court
observed, “But this was more than text messaging. It was
penetration with a finger to a vagina.” (Emphasis added.) The
court also mentioned the “digital penetration” a second time:
22 Nevertheless, judges must be mindful of their obligation to
accept no contest pleas “only after due consideration of the views of the
parties and the interest of the public in the effective administration of
justice.” Hawai‘i Rules of Penal Procedure (HRPP) Rule 11(b) (2014). In
some cases, due consideration may entail establishing the factual basis for
a no contest plea, even though no such inquiry is explicitly mandated and
the defendant need not elaborate on their conduct. Requiring the prosecutor
to explain the factual basis for a no contest plea is “the better practice”
as it prevents misunderstanding and clarifies the record for appeal.
5 Wayne R. LaFave et al., Criminal Procedure § 21.4(a) n.23 (4th ed. 2021)
(“Even where no factual basis is required, determining the factual basis by
inquiry of the prosecutor is said to be ‘the better practice’ because it
aids inquiry on appeal into the sufficiency of the charge.” (quoting Ranke
v. United States, 873 F.2d 1033, 1037 (7th Cir. 1989))). Indeed, we have
held that although a court is not obligated to establish a factual basis in
the record for a no contest plea, it has the discretion to do so. Merino,
81 Hawai‘i at 219, 915 P.2d at 693.
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“I think everything you did to her, besides the digital
penetration and the custodial interference . . . . I mean, talk
about a negative influence on a child.” (Emphasis added.) And
later, after defense counsel pointed out that “there is no
allegation of digital penetration” because the first-degree
charge had been dismissed, the court acknowledged the
correction but observed that “it still occurred at the Boys &
Girls Club, I think in the upper room. This inappropriate
activity between you and the juvenile, you and the minor did
happen. It happened.” While this last exchange took place
after the DANC decision and during the court’s sentencing
discussion, it further suggests that the penetrative act of
which Satoafaiga had been accused weighed on the court’s DANC
decision. Together, these references show that Satoafaiga’s
alleged act of digital penetration factored into the court’s
decision when it denied the DANC motion.
Likewise, the circuit court erred by factoring into
its decision Satoafaiga’s failure to accept responsibility for
the alleged sexual penetration. In considering the DANC
motion, the court addressed Satoafaiga’s lack of remorse for
the penetration:
Have you truly taken responsibility and apologized? I
guess does it appear that you’re unlikely to engage in
such a criminal course of conduct again? Well, you do
admit in your letter that you engaged in inappropriate
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text messages. But this was more than text messaging. It
was penetration with a finger to a vagina.
(Emphasis added.)
While a court generally can consider a defendant’s
lack of remorse in the sentencing context, State v. Kamana‘o,
103 Hawai‘i 315, 321, 82 P.3d 401, 407 (2003), in this case the
court was explicitly excluded from considering penetration. It
could not obviate this limitation by penalizing Satoafaiga’s
failure to express remorse for the same conduct. Thus, it was
improper for the court to take into account whether Satoafaiga
had “taken responsibility and apologized” for an act of sexual
penetration.23 Accordingly, the circuit court’s judgment must
be vacated to the extent that it denied the motion for a DANC.
We do not mean to imply that any time a defendant
pleads to a lesser-included offense in exchange for the
dismissal of a greater one, the court may not consider the
circumstances leading to the greater charge. For example, if
the heinous or aggravated nature of the acts committed points
to a sentence on the upper end of the permitted sentencing
range, the judge may consider it. See State v. Karwacki,
23 Satoafaiga appears to argue for a rule displacing the analysis
in Kamana‘o and categorically barring judges from considering a defendant’s
remorse in cases involving a no contest plea. Because we hold that the
underlying conduct for which Satoafaiga was asked to apologize was
improperly considered, we do not address whether Kamana‘o properly applies
in the context of a no contest plea.
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1 Haw. App. 157, 159, 616 P.2d 226, 228 (1980); accord HRS
§ 706-606 (2014) (directing sentencing courts to consider
“nature and circumstances of the offense”). Defendants who
plead to a lesser offense after being charged with a greater
one do not thereby insulate themselves from the gravity of
their conduct. See State v. Modica, 58 Haw. 249, 251, 567 P.2d
420, 422 (1977) (“[I]t is generally no defense to an indictment
under one statute that the accused might have been charged
under another.”).
However, just as a court may not penalize a defendant
for conduct with no support in the record, it cannot hold a
defendant responsible for conduct that they could not logically
have committed, given their offense of conviction.
Consequently, we hold that the trial court abused its
discretion by considering sexual penetration, and remand for
reconsideration of the DANC motion.
C. On Remand, the Trial Court Has Broad Discretion to Consider
the Circumstances of the Offense and Defendant
Because we remand for reconsideration of the DANC
motion, we provide guidance as to what the circuit court may
and may not consider. In general, judges have broad discretion
to consider the facts and circumstances of the defendant and
the offense in making a DANC determination. Thus, Satoafaiga’s
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arguments that the trial court should not have considered,
inter alia, her inappropriate text messages with the CW or the
sentencing factors in the PSI report are misplaced.
Satoafaiga’s arguments cut against the principle that
judges have broad discretion in deciding whether to grant
DAG/DANC motions. As noted, HRS § 853-1(a) sets forth the
criteria a trial court should examine in its determination,
which are: (1) whether the defendant is not likely again to
engage in a criminal course of conduct; and (2) whether the
ends of justice and the welfare of society require that the
defendant presently suffer the penalty imposed by law. In
making these determinations, the court may consider sentencing
factors discussed in the PSI report, including the “nature and
circumstances of the offense and the history and
characteristics of the defendant.” HRS § 706-606.
The role of the PSI report illuminates the importance
of judges taking the facts and circumstances into account.
These reports focus the judge’s attention on matters including
“the circumstances attending the commission of the crime” and
“[t]he defendant’s history of delinquency or criminality,” see
HRS § 706-602 (2014), which are also relevant to the HRS
§ 853-1(a) factors.
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In the DAG/DANC context, a court cannot intelligently
decide whether a defendant is likely to reoffend nor whether
their crimes merit immediate punishment without understanding
the nature of the offense and the defendant’s character and
circumstances. Thus, judges not only may but must consider the
defendant’s particular situation in DANC proceedings as well as
in sentencing. Cf. Martin, 56 Haw. at 294, 535 P.2d at 128(holding, in the DAG context, that “[d]iscretionary action must
be exercised on a case-by-case basis”).
Nevertheless, Satoafaiga argues that the circuit
court should not have relied on “uncharged, irrelevant evidence
of text messaging” in denying the DANC motion.24 And she
asserts that, other than some of the factors supporting her
DANC motion, the Assessment Factors listed in the PSI report
were “irrelevant imposition-of-jail factors” that both the ICA
and the circuit court erroneously considered.
Far from being irrelevant, the sexually explicit text
messages bore on the relationship between Satoafaiga and the CW
and thus on the nature of the offense. The three or four
24 In her application for certiorari, Satoafaiga describes the
text-messaging evidence as “uncharged.” However, she does not elaborate on
what uncharged offenses the circuit court may have considered when it took
the text messages into account. Therefore, although Nunes and Vellina
prohibit consideration of uncharged conduct, we do not address how these
cases apply to the sexually explicit text-message exchanges in this case.
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months of prolonged communication between her and the CW made
the two incidents for which Satoafaiga was ultimately convicted
appear more like a long-term pattern of conduct than a
momentary lapse of judgment.25 Cf. State v. Barrios, 139
Hawai‘i 321, 332-33, 389 P.3d 916, 927-28 (2016) (holding the
circuit court properly considered the long-term nature of the
abuse and the fact that defendant “groomed” his victim). And
indeed, the trial court so found here. The text messages were
relevant to the court’s determination regarding the HRS
§ 853-1(a) factors. Therefore, the court was within its
discretion to consider the text messages.
Satoafaiga also argues that the Assessment Factors in
the PSI report, “other than those factors that comment on the
likelihood of future criminality, are simply not relevant to”
the DANC analysis. Thus, Satoafaiga contends, while she
properly quoted the Report’s findings to the trial court with
respect to her lack of a criminal record and low recidivism
25 In this regard, this case resembles State v. Zimmerman, 131
Hawai‘i 60, 314 P.3d 850, 2013 WL 6507550 (App. Dec. 11, 2013) (SDO). In
Zimmerman, the defendant pleaded guilty to second-degree murder and
kidnapping; during sentencing, the court considered an email the defendant
sent to his victim demeaning and threatening her. Id. at *1. Zimmerman
argued that the court improperly punished him for writing the email, which
was copied to nineteen other email addresses and included explicit
photographs of the victim. Id. at *1-*2. The ICA rejected this argument,
holding that the email “illuminated the abusive nature of the relationship
between Zimmerman and his victim.” Id. at *2. Likewise, here, the text
messages reflected the relationship between Satoafaiga and the CW; it was in
the context of this relationship that the offense occurred.
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risk, the ICA erred when it considered the findings that
Satoafaiga “acted without provocation or without reasons” and
her actions “suggest a significant lack of control and good
judgment.” Satoafaiga, 2021 WL 928443 at *4.
Satoafaiga cannot so easily dissect the record to say
what is relevant and what is not. As discussed, a broad range
of considerations will be relevant to whether Satoafaiga is
likely to reoffend and whether justice and social welfare
require her present punishment. Thus, the PSI report’s
findings that Satoafaiga acted without provocation and
demonstrated poor judgment are germane to the DANC decision –
no less so than its findings, on the other hand, that she had a
stable history of employment and a strong support system. All
of these factors go to the nature and context of the offense
and the circumstances of the defendant, and were within the
trial court’s discretion to consider.
Thus, while the circuit court on remand may not
consider any allegations from the PSI report or elsewhere that
Satoafaiga committed an act of sexual penetration, we do not
otherwise limit its discretion. Normally, the manner in which
a defendant commits a crime is relevant to the DANC decision.
See Buchanan, 59 Haw. at 563, 584 P.2d at 127 (approving the
trial court’s consideration of the offense conduct in denying a
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DAG motion). But here, because of the unusual circumstances of
this case, the court is barred from considering the particular
manner in which Satoafaiga committed the crime.
Nevertheless, the offense to which Satoafaiga pleaded
remains relevant to whether a DANC is merited. The court below
may consider that Satoafaiga pleaded no contest to an offense
involving sexual contact with a minor. As discussed, her
stipulation concedes that the State can prove the elements of
Sexual Assault in the Fourth Degree, including sexual contact -
in this case, with a twelve-year-old under her charge. Thus,
the court may take into account that some acts of sexual
contact occurred between Satoafaiga and the CW. The court may
also consider the circumstances surrounding the offense she
pleaded to, for example that it is alleged to have taken place
at the Club and in the context of an ongoing “grooming”
relationship with the CW.
V. CONCLUSION
For the foregoing reasons, we vacate the ICA’s
April 13, 2021 judgment on appeal to the extent that it
affirmed the denial of Satoafaiga’s DANC motion and vacate the
circuit court’s January 22, 2020 judgment of conviction with
respect to its denial of the DANC motion. Inasmuch as
Satoafaiga has not challenged her sentence on appeal, the
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*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***
judgments are affirmed as to the sentence. We remand this
matter to the circuit court with instructions to reconsider
Satoafaiga’s DANC motion in a manner consistent with this
opinion.
Hayden Aluli /s/ Mark E. Recktenwald
for petitioner
/s/ Paula A. Nakayama
Richard B. Rost
for respondent /s/ Sabrina S. McKenna
/s/ Michael D. Wilson
/s/ Todd W. Eddins
40