State v. Borge, Jr. ( 2023 )


Menu:
  •     *** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
    Electronically Filed
    Supreme Court
    SCWC-XX-XXXXXXX
    15-MAR-2023
    08:01 AM
    Dkt. 25 OP
    IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
    ---o0o---
    STATE OF HAWAIʻI,
    Respondent/Plaintiff-Appellee,
    vs.
    TROY D. BORGE, JR.,
    Petitioner/Defendant-Appellant.
    SCWC-XX-XXXXXXX
    CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
    (CAAP-XX-XXXXXXX; CR. NO. 2CPC-XX-XXXXXXX)
    MARCH 15, 2023
    RECKTENWALD, C.J., NAKAYAMA, McKENNA, WILSON, AND EDDINS, JJ.
    OPINION OF THE COURT BY McKENNA, J.
    I.   Introduction
    This case addresses whether the Circuit Court of the Second
    Circuit (“circuit court”)1 abused its discretion by denying Troy
    D. Borge’s (“Borge”) motion to dismiss an indictment where,
    1       The Honorable Kelsey T. Kawano presided.
    *** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
    before the grand jury, the prosecutor elicited testimony that
    Borge had invoked his right to remain silent.
    We also address whether the circuit court erred by
    awarding the complaining witness (“CW”) $1,461,444.01 in
    restitution for hospital bills under Hawai‘i Revised Statutes
    (“HRS”) § 706-646 (2014 & Supp. 2019) when (1) CW did not
    request restitution for these amounts; and (2) most of the bills
    were written off by the hospital and some were paid by CW’s
    insurer, AlohaCare.
    We hold the circuit court abused its discretion when it
    denied Borge’s motion to dismiss indictment.     The prosecutor
    violated Borge’s Hawaiʻi due process right to a fair and
    impartial grand jury hearing by eliciting testimony before the
    grand jury that Borge invoked his right to remain silent.
    With respect to restitution, interpreting HRS § 706-646, we
    hold that (1) restitution is limited to amounts requested by a
    victim; and (2) the restitution awarded was not for CW’s
    “reasonable and verified losses” because (a) HRS § 706-646(3)
    allows for restitution only for amounts “sufficient to reimburse
    any victim fully for losses” (emphasis added); (b) the
    collateral source rule does not apply; and (c) even if HRS §
    706-646 was ambiguous, the rule of lenity would not allow the
    restitution awarded here for the reasons already provided.
    2
    *** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
    We therefore also overrule the opinion of the Intermediate
    Court of Appeals (“ICA”) in State v. Tuialii, 121 Hawai‘i 135,
    
    214 P.3d 1125
     (App. 2009), overruled on other grounds by State
    v. Kealoha, 142 Hawai‘i 46, 
    414 P.3d 98
     (2018), which held that a
    restitution award can include sums paid by a direct victim’s
    insurer.
    Hence, we vacate the circuit court’s September 3, 2020
    findings of fact, conclusions of law, and order denying motion
    to dismiss indictment (“order denying motion to dismiss
    indictment”), June 7, 2021 judgment of conviction and sentence
    (“judgment”), and June 17, 2021 free-standing order of
    restitution, as well as the ICA’s October 19, 2022 judgment on
    appeal, and we remand to the circuit court for dismissal of the
    indictment and further proceedings consistent with this opinion.
    II.   Background
    A.   Factual background
    On November 5, 2019, the Maui Police Department (“MPD”)
    responded to an incident at the Pā‘ia Youth and Cultural Center.
    CW suffered serious injuries after Borge struck him on the head
    several times with a piece of wood.    MPD arrested Borge the
    following day and initiated criminal charges.
    3
    *** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
    B.     Circuit court proceedings
    1.    First indictment
    On November 22, 2019, the State of Hawaiʻi (“the State”)
    presented the case to a grand jury, which returned an indictment
    charging Borge with attempted second-degree murder in violation
    of HRS §§ 705-500(2) (2014) and 707-701.5 (2014 & Supp. 2018).2
    On April 13, 2020, however, the circuit court3 granted
    Borge’s motion to dismiss the first indictment without
    prejudice.4
    2     The State actually first prosecuted Borge in the District Court of the
    Second Circuit (“district court”) in case no. 2DCW-19-2338. The complaint
    charged Borge with attempted murder in the second degree. The Honorable
    Kristin M. Hamman found probable cause lacking for the attempted second-
    degree murder charge, but found probable cause for the lesser included
    offense of first-degree assault. The State then filed an amended complaint
    charging attempted first-degree assault and the district court committed
    Borge to the circuit court for further proceedings. No further action
    appears in the record on this charge.
    Then, on April 14, 2020, the day after the first indictment was
    dismissed, the State filed a felony information against Borge in case no.
    2CPC-20-207, charging him with first-degree assault. On September 13, 2021,
    after Borge’s conviction and sentencing in the case before this court, the
    Honorable Kelsey T. Kawano granted the State’s motion to dismiss the felony
    information without prejudice.
    3     The Honorable Rhonda I.L. Loo presided over the circuit court
    proceedings in case no. 2CPC-19-795.
    4      The circuit court concluded the State improperly presented hearsay
    testimony regarding an eyewitness’s statements to the police and statements
    of CW’s treating physician. The State appealed to the ICA, but the appeal
    was dismissed after the State re-indicted Borge in the case now before this
    court.
    4
    *** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
    2.    Second indictment
    On June 26, 2020, the State convened a second grand jury
    proceeding.   The State presented testimony from an eyewitness
    and MPD Detective Dennis Clifton (“Detective Clifton”).
    Detective Clifton testified that he was assigned to
    investigate the case and that he met with Borge on November 7,
    2019, the day after Borge was arrested.       The prosecutor then
    questioned Detective Clifton about that contact:
    Q. . . . . Did you notice any injures to Mr. Borge?
    A. No.
    Q. None to his head, arms, anyplace?
    A. No, sir.
    Q. Okay. And you didn’t take any statement from Mr.
    Borge?
    A. We attempted to question him, but he requested to speak
    to an attorney.
    (Emphases added.)
    After completing questioning of Detective Clifton, the
    prosecutor stated, “Before I proceed, Detective Clifton
    testified [that] Mr. Borge was asking for an attorney.          I’m
    going to advise the grand jury that you’re not to consider that
    information in your deliberation.”
    On June 29, 2020, the grand jury returned a second
    indictment, again charging Borge with attempted second-degree
    murder.
    5
    *** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
    3.    Motion to dismiss second indictment
    On July 17, 2020, Borge moved to dismiss the second
    indictment.5      Borge argued the prosecutor committed prosecutorial
    misconduct before the grand jury in violation of his due process
    rights by improperly eliciting testimony that he had exercised
    his right to remain silent.        He pointed to Detective Clifton’s
    testimony that MPD “attempted to question” Borge, “but he
    requested to speak to an attorney.”
    The circuit court denied Borge’s motion to dismiss the
    second indictment and, on September 3, 2020, entered its order
    denying motion to dismiss indictment.
    4.    No contest plea
    On December 7, 2020, Borge entered a no-contest plea to the
    lesser included offense of assault in the first degree in
    violation of HRS § 707-710 (2014).         Borge reserved the right to
    5     Borge initially asserted HRS § 701-110(2) (2014) and the doctrine of
    collateral estoppel barred the indictment because the district court entered
    a final order committing only the lesser included first-degree assault
    charge, not the attempted second-degree murder charge, to the circuit court
    for further proceedings. Borge is not pursuing that claim on certiorari and
    we therefore do not address it.
    Borge also alleged the prosecutor presented excessive hearsay and
    failed to present clearly exculpatory evidence. He asserted the individual
    and cumulative effect of the alleged misconduct violated his due process
    right to a fair and unbiased grand jury. In addition, Borge asserted the
    indictment must be dismissed because the evidence presented to the grand jury
    was insufficient to establish probable cause that Borge committed attempted
    second-degree murder. Because we hold the improper elicitation of testimony
    regarding Borge’s invocation of his right to remain silent requires dismissal
    of the indictment, we do not further discuss these additional arguments.
    6
    *** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
    appeal the circuit court’s order denying motion to dismiss
    indictment.
    5.    Sentencing, including restitution order
    A presentence report was filed on February 2, 2021.          The
    circuit court ordered the filing of a restitution report.             In
    the Second Circuit, the court’s special services branch contacts
    those identified in the police report to determine whether they
    are victims who have sustained losses and wish to submit claims
    for restitution.
    On April 7, 2021, the State filed an addendum to the
    presentence report regarding restitution.          It included a
    restitution claim from CW’s mother requesting $6,320.66 for her
    and her husband’s airfare, lodging, ground transportation, food,
    and other expenses for their travel back and forth from their
    North Dakota home due to CW’s injuries and hospitalizations.7
    The court officer recommended restitution totaling $5,030.64
    from these amounts.       The circuit court denied the claims from
    CW’s parents.
    However, the addendum also included 115 pages of billing
    records from Maui Memorial reflecting total medical bills of at
    7     The request also included $100 for dental services and a $770 credit
    card charge from Maui Health System’s Maui Memorial Medical Center (“Maui
    Memorial”), both of which the court officer did not recommend based on
    “insufficient documentation.”
    7
    *** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
    least $1,461,444.01,8 and also reflecting payments of $204,174.49
    by AlohaCare as well as adjustments or write-offs of
    $996,283.16.9
    The circuit court held several hearings on sentencing and
    restitution; Borge continuously objected to restitution being
    ordered for the medical bills.10
    On June 7, 2021, the circuit court entered its judgment,
    convicting Borge of first-degree assault and sentencing him to a
    ten-year term of imprisonment.        The circuit court also sentenced
    Borge to pay restitution of $1,461,444.01 for CW’s medical
    bills.      On June 17, 2021, the circuit court also entered a free-
    standing order of restitution, ordering Borge to pay CW the
    $1,461,444.01.
    8     According to the State, this is the total amount for all billings in
    the record.
    9     The bills appear to reflect payments of $160,008.20, $245.88, and
    $43,920.41, sub-totaling $204,174.49, adjustments or write-offs of
    $617,625.08, $387.12, and $378,270.96, sub-totaling $996,283.16, and a
    remaining balance of $261,619.36. These amounts would total $1,462,077.01, a
    difference from the $1,461,444.01 that would not be reconciled by the $770
    credit card charge referenced supra in note 6. These differences are
    immaterial, however, for the rulings in this opinion.
    10    At the June 4, 2021 hearing, the circuit court referenced a filing from
    the State, “consisting of a declaration of custodian of records submitted
    under cover from Alana Kushi (phonetic), who declares pursuant to declaration
    that she is the patient financial services assistant with Maui Health System,
    Maui Memorial Medical Center; that she is the custodian of records on behalf
    of Maui Health System Maui Memorial Medical Center; that Maui Health System,
    Maui Memorial Medical Center maintains the attached billing records; and
    attached billing records are true and correct copies of the billing records;
    and that those billing records contain 115 pages for” CW. This filing does
    not appear in the record.
    8
    *** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
    C.   ICA proceeding
    On appeal, Borge asserted the circuit court erred when it
    (1) denied his motion to dismiss the second indictment; and (2)
    ordered he pay restitution to CW that included medical expenses
    paid by CW’s insurance provider.       Borge repeated the arguments
    raised in his motion to dismiss the second indictment.      Borge
    additionally argued the restitution order was not supported by
    our restitution statute, HRS § 706-646.
    On September 14, 2022, the ICA filed a summary disposition
    order affirming the circuit court’s judgment.       State v. Borge,
    No. CAAP-XX-XXXXXXX (Haw. App. Sept. 14, 2022) (SDO).       With
    respect to the issues we address on certiorari, the ICA
    concluded the prosecutor’s examination of Detective Clifton did
    not violate Borge’s due process right to a fair and impartial
    grand jury.   Id. at 4-6.   Citing State v. Rodrigues, 113 Hawai‘i
    41, 
    147 P.3d 825
     (2006), the ICA framed the prosecutor’s line of
    inquiry “as detailing the actions Detective Clifton took the
    night of the incident[.]”    Borge, SDO at 5 (citing Rodrigues,
    113 Hawai‘i at 49–50, 
    147 P.3d at 833-34
    ).      The ICA noted
    Detective Clifton referenced Borge’s silence only once.         
    Id.
    The ICA reasoned that “the prosecutor did not comment on Borge’s
    silence, did not use his silence to imply his guilt, and
    immediately gave curative instructions to the grand jury[,]” so
    9
    *** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
    the questioning did not constitute prosecutorial misconduct.
    Id. at 6.
    The ICA also addressed Borge’s assertion that the
    restitution order did not comply with the statutory requirements
    set out by HRS § 706-646.     Id. at 12-14.   The ICA cited its
    Tuialii opinion for the proposition that HRS § 706-646 “does not
    support the theory that a crime victim has not suffered a loss
    if (or to the extent that) the victim has received
    indemnification from its insurer[.]”      Borge, SDO at 12 (citing
    State v. Martin, No. CAAP-XX-XXXXXXX (Haw. App. Mar. 10, 2020)
    (SDO) (citing Tuialii, 121 Hawaiʻi at 139-42, 214 P.3d at 1129-
    32)).    The ICA did not address Borge’s argument that the
    insurance carrier was not a victim.      See id. at 12-14.
    D.   Certiorari proceedings
    On certiorari, Borge asserts the ICA erred in affirming the
    circuit court’s (1) order denying motion to dismiss indictment;
    and (2) restitution order.     Borge repeats his arguments raised
    below.
    III.   Standards of Review
    A.   Motion to dismiss indictment
    “A motion to dismiss an indictment is . . . reviewed for an
    abuse of discretion.    The trial court abuses its discretion when
    it clearly exceeds the bounds of reason or disregards rules or
    principles of law or practice to the substantial detriment of a
    10
    *** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
    party litigant.”    State v. Pitts, 146 Hawaiʻi 120, 129, 
    456 P.3d 484
    , 493 (2019) (citations omitted).       “The burden of
    establishing abuse of discretion is on appellant, and a strong
    showing is required to establish it.”       State v. Wong, 97 Hawaiʻi
    512, 517, 
    40 P.3d 914
    , 919 (2002) (citation omitted).
    “[D]ismissal of an indictment is required only in flagrant cases
    in which the grand jury has been overreached or deceived in some
    significant way.”     97 Hawaiʻi at 526, 
    40 P.3d at 928
    .
    B.   Constitutional violations
    “Questions of constitutional law are reviewed under the
    right/wrong standard.”     Pitts, 146 Hawai‘i at 129, 456 P.3d at
    493 (citation omitted).
    C.   Statutory interpretation
    “The interpretation of a statute is a question of law.
    Review is de novo, and the standard of review is right/wrong.”
    Kimura v. Kamalo, 106 Hawai‘i 501, 507, 
    107 P.3d 430
    , 436 (2005)
    (citation omitted).     Our statutory interpretation is guided by
    the following principles:
    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
    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. And fifth, in construing an ambiguous
    statute, the meaning of the ambiguous words may be sought
    11
    *** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
    by examining the context, with which the ambiguous words,
    phrases, and sentences may be compared, in order to
    ascertain their true meaning.
    Ito v. Invs. Equity Life Holding Co., 135 Hawaiʻi 49, 61, 
    346 P.3d 118
    , 130 (2015) (citation omitted).
    IV.   Discussion
    A.   The prosecutor violated Borge’s due process right to a
    fair and impartial grand jury hearing by eliciting
    testimony before the grand jury that Borge invoked his
    right to remain silent
    Article I, section 5 of the Constitution of the State of
    Hawaiʻi provides that no person shall be deprived of liberty
    without due process of law.       We have recognized that due process
    of law requires a fair and impartial grand jury hearing.              State
    v. Rodrigues, 
    63 Haw. 412
    , 417, 
    629 P.2d 1111
    , 1115 (1981).
    Further, prosecutorial misconduct that undermines the
    fundamental fairness and integrity of the grand jury process is
    presumptively prejudicial.     Wong, 97 Hawaiʻi at 517-18, 
    40 P.3d at 919-20
     (citations omitted).      But “‘prosecutorial misconduct’
    is a legal term of art that refers to any improper action
    committed by a prosecutor, however harmless or unintentional.”
    State v. Williams, 146 Hawai‘i 62, 72, 
    456 P.3d 135
    , 145 (2020)
    (citation omitted).
    We have also repeatedly recognized the importance of the
    constitutional right against self-incrimination.          See, e.g.,
    State v. Mainaaupo, 117 Hawai‘i 235, 252, 
    178 P.3d 1
    , 18 (2008)
    12
    *** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
    (“There is nothing more basic and more fundamental than that the
    accused has a constitutional right to remain silent, and the
    exercise of this privilege may not be used against [them].”
    (citations omitted)).     This right is secured by article I,
    section 10 of the Hawai‘i Constitution, which provides, “nor
    shall any person be compelled in any criminal case to be a
    witness against oneself.”    The right against self-incrimination
    is sacrosanct.   See Brown v. Walker, 
    161 U.S. 591
    , 637 (1896)
    (“The reprobation of compulsory self-incrimination is an
    established doctrine of our civilized society.”); Havard v.
    State, 
    94 So.3d 229
    , 237 (Miss. 2012) (“A defendant’s right
    against self incrimination is not only sacrosanct, but is
    commonly known across this land.”).
    Hence, we have held the right prohibits the prosecution
    from adducing evidence of or commenting on a person’s exercise
    of that right.   See State v. Beaudet-Close, 148 Hawaiʻi 66, 72-
    73, 
    468 P.3d 80
    , 86-87 (2020).     We have further held that a
    prosecutor may not directly or indirectly imply guilt by
    eliciting testimony during a question-and-answer exchange with a
    witness at trial concerning a defendant’s exercise of their
    right to remain silent.    State v. Tsujimura, 140 Hawaiʻi 299,
    315-18, 
    400 P.3d 500
    , 516-19 (2017).       In those circumstances, we
    have applied the following test:       “whether the prosecutor
    intended for the information elicited to imply the defendant’s
    13
    *** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
    guilt or whether the character of the information suggests to
    the factfinder that the defendant’s prearrest silence may be
    considered as inferential evidence of the defendant’s guilt.”
    140 Hawai‘i at 315, 
    400 P.3d at
    516 (citing Rodrigues, 113
    Hawai‘i 41, 
    147 P.3d 825
    ).
    Before the second grand jury, the prosecutor asked
    Detective Clifton “And you didn’t take any statement from Mr.
    Borge?”   Detective Clifton responded, “We attempted to question
    him, but he requested to speak to an attorney.”
    The prosecutor may not have known that Detective Clifton
    would respond as he did.       But he did know Borge had refused to
    make a statement.     If a grand juror had asked that question, the
    prosecutor or grand jury counsel would have needed to inform the
    jury that it was not a proper question.          It is difficult to
    understand why, in any grand jury proceeding, a prosecutor would
    ask an officer whether he obtained the defendant’s statement
    when the answer is “no.”       Not only is such a question not needed
    to obtain an indictment,11 absent unusual circumstances, the
    question and answer would violate a defendant’s constitutional
    right against self-incrimination.
    Regarding unusual circumstances, the State, as well as the
    ICA, opine that the question and answer were allowed by
    11    During the first grand jury proceeding, the State did not ask Detective
    Clifton whether Borge had given a statement before the jury returned the
    attempted murder indictment.
    14
    *** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
    Rodrigues, 113 Hawaiʻi 41, 
    147 P.3d 825
    .      See Borge, SDO at 5-6
    (citing Rodrigues, 113 Hawaiʻi at 49–50, 
    147 P.3d at
    833–34).        In
    Rodrigues, at trial, the prosecutor elicited testimony that the
    defendant declined to agree to an audiotaped reiteration of his
    post-arrest statement to a detective.      113 Hawai‘i at 49, 
    147 P.3d at 833
    .     We held that, under the circumstances of that
    case, the elicited statement was not an improper comment on the
    defendant’s refusal to testify.     113 Hawai‘i at 49-50, 
    147 P.3d at 833-34
    .   We stated the prosecutor’s conduct was not improper
    because the question was posed and the information was elicited
    “as part of the prosecution’s effort to maximize the
    reliability” of the detective’s recollections “and to explain
    why the detective could only rely on his notes and not an
    audiotape of the interview[.]”     
    Id.
    Rodrigues, however, concerned unusual circumstances in a
    trial setting.    The opinion does not affect a defendant’s
    fundamental right against self-incrimination, nor the
    prohibition against the State adducing evidence of or commenting
    on a defendant’s exercise of that right.      Rodrigues held that
    the circumstances there did not rise to an improper comment on
    the defendant’s refusal to testify, but its holding is limited
    to the unusual facts of that case.       Rodrigues does not stand for
    the proposition that the State can routinely ask an officer
    whether there was an attempt to take a defendant’s statement,
    15
    *** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
    knowing that the defendant had refused, under the guise of
    establishing that an officer conducted a thorough investigation.
    Further, Rodrigues also said the “line of inquiry designed
    to establish the detective’s custom and practice regarding
    accurately transcribing such statements, was unaccompanied by
    any implication of guilt[.]”        Id.; see also Tsujimura, 140
    Hawaiʻi at 318, 
    400 P.3d at 519
     (emphasizing that Rodrigues does
    not permit the indirect use of a defendant’s silence to imply
    guilt).    Rodrigues also does not mean, however, that if the
    State posits that testimony adduced regarding a defendant’s
    exercise of the right against self-incrimination was not
    intended to imply guilt, admission of or comment on such
    testimony becomes permissible.        Such a subjective standard would
    vitiate a defendant’s right against self-incrimination.
    Rather, we hold that in the grand jury context, the test is
    whether the prosecutor intended for the information elicited to
    imply probable cause exists or whether the character of the
    information suggests to the jurors that the accused’s silence
    may be considered as inferential evidence to find probable
    cause.    See Tsujimura, 140 Hawai‘i at 315, 
    400 P.3d at
    516
    (citing Rodrigues, 113 Hawai‘i 41, 
    147 P.3d 825
    ).           Here, whether
    or not the State anticipated Detective Clifton’s response,12 the
    12    The State argues the prosecutor’s inquiry did not constitute misconduct
    because Detective Clifton’s testimony was non-responsive. Although the
    16
    *** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
    character of the evidence clearly indicates its presentation was
    improper.    The State adduced express evidence that Borge refused
    to give a statement to Detective Clifton.          Simply put, the
    prosecutor should not have posed the question in the first
    place.13
    The question and answer constituted a flagrant violation of
    Borge’s due process rights.       Hence, we hold the circuit court
    abused its discretion when it denied Borge’s motion to dismiss
    this indictment.
    B.   The circuit court erred by ordering Borge to pay
    $1,461,444.01 in restitution to CW
    Borge also asserts the circuit court erred by ordering him
    to pay CW $1,461,444.01 in restitution for medical bills from
    prosecutor’s question technically called for a “yes” or “no” answer,
    Detective Clifton’s answer was responsive. It addressed whether he took a
    statement from Borge; indeed, the question itself implicated Borge’s right to
    remain silent. We do not address possible scenarios in which a witness’s
    answer is completely non-responsive.
    13    The ICA also agreed with the State’s contention that the prosecutor
    advisement to the grand jury to disregard Detective Clifton’s cured any
    misconduct. Borge, SDO at 5-6. We have held a curative instruction can
    sometimes “cure” prosecutorial misconduct. Mainaaupo, 117 Hawai‘i at 255, 
    178 P.3d at 21
     (citation omitted). We note that a “cure” generally comes from a
    judge’s instruction, not from a prosecutor. HRS § 612-16(d) (2016) provides
    in relevant part:
    [T]he [circuit] court shall give [the grand jurors] such
    information as it may deem proper as to their duties and as
    to the law pertaining to such cases as may come before
    them. The court may further charge the grand jurors and
    alternate grand jurors from time to time, as it may deem
    necessary.
    In any case, the “advisement” given here could not have constituted a
    “cure” even if given by the circuit court. The advisement was merely to
    disregard Detective Clifton’s testimony that Borge “was asking for an
    attorney.” There was no instruction to disregard Borge’s refusal to give a
    statement, i.e., his exercise of his right to remain silent.
    17
    *** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
    Maui Memorial.     Borge asserts the ordered restitution does not
    comply with HRS § 706-646.
    HRS § 706-646 provides in relevant part:
    (1) As used in this section, “victim” includes any of the
    following:
    (a) The direct victim of a crime including a business
    entity, trust, or governmental entity;
    . . . .
    (c) A governmental entity that has reimbursed the
    victim for losses arising as a result of the crime or
    paid for medical care provided to the victim as a
    result of the crime[.]
    . . . .
    (2) The court shall order the defendant to make restitution
    for reasonable and verified losses suffered by the victim
    or victims as a result of the defendant’s offense when
    requested by the victim. . . .
    (3) In ordering restitution, the court shall not consider
    the defendant’s financial ability to make restitution in
    determining the amount of restitution to order. The court,
    however, shall consider the defendant’s financial ability
    to make restitution for the purpose of establishing the
    time and manner of payment. . . . Restitution shall be a
    dollar amount that is sufficient to reimburse any victim
    fully for losses, including but not limited to:
    (a) Full value of stolen or damaged property, as
    determined by replacement costs of like property, or
    the actual or estimated cost of repair, if repair is
    possible;
    (b) Medical expenses, which shall include mental
    health treatment, counseling, and therapy;
    (c) Funeral and burial expenses; and
    (d) Lost earnings, which shall include paid leave.
    (Emphases added.)
    For the following reasons, we agree that the circuit
    court’s restitution order was erroneous and must be vacated.
    1.      Under HRS § 706-646, restitution is only to be
    awarded to a victim only for amounts requested
    Subsection (1) of HRS § 706-646 allows for restitution to a
    “victim.”    Under HRS § 706-646(1)(a) and (c), “victim” means the
    “direct victim of a crime” or a “governmental entity that has
    18
    *** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
    reimbursed the victim for losses arising as a result of the
    crime or paid for medical care provided to the victim as a
    result of the crime[.]”       CW is obviously a direct victim under
    subsection (1)(a).      The record does not indicate, however, that
    Maui Memorial and AlohaCare are governmental entities.             In any
    event, the restitution was awarded to CW.
    In State v. Demello, 136 Hawai‘i 193, 196, 
    361 P.3d 420
    , 423
    (2015), we held HRS § 706-646 allows for restitution of a
    victim’s losses that are (1) reasonable, (2) verified, (3)
    suffered as a result of the defendant’s conduct, and (4)
    requested by the victim.       The language in requirement (4)
    expressly appears in subsection (2).         See HRS § 706-646(2).
    Here, the circuit court awarded $1,461,444.01 in
    restitution to CW for medical bills from Maui Memorial.             But CW
    did not request restitution for these medical bills.            Rather,
    the record includes a restitution claim from CW’s mother
    requesting $6,320.66 for her and her husband’s airfare, lodging,
    ground transportation, food, and other expenses for their travel
    back and forth from their North Dakota home due to CW’s injuries
    and hospitalizations.14      Even if we assume CW’s parents had
    requested restitution on behalf of CW, CW never requested
    restitution for the medical bills that were awarded to him.
    14    As noted, the request also included $100 for dental services and a $770
    credit card charge from Maui Memorial, both of which the court officer did
    not recommend based on “insufficient documentation.”
    19
    *** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
    Therefore, for this reason alone, the circuit court erred by
    awarding the $1,461,444.01 in medical expenses as restitution to
    CW.
    2.   The restitution awarded was not for CW’s reasonable
    and verified losses
    Borge also argues that restitution was erroneously ordered
    because AlohaCare paid Maui Memorial for CW’s medical expenses.
    In other words, he argues that payments made on behalf of a
    direct victim by collateral sources are not “reasonable and
    verified losses” of the direct victim.15
    The circuit court awarded restitution for the total of
    billings from Maui Memorial, including payments of at least
    $204,174.49 by AlohaCare and $996,283.16 in adjustments or
    write-offs.16
    a.    HRS § 706-646(3) allows for restitution only for
    amounts sufficient to reimburse a victim fully
    for losses
    HRS § 706-646(3) expressly provides that “[r]estitution
    shall be a dollar amount that is sufficient to reimburse any
    victim fully for losses[.]”       HRS § 706–646 does not define
    “losses” other than the categories of “losses” listed in
    subsection (3).     Construing an early version of the original
    15    We address this issue based on the “capable of repetition, yet evading
    review” exception to the mootness doctrine. See State v. Tui, 138 Hawaiʻi
    462, 468, 
    382 P.3d 274
    , 280 (2016).
    16    See supra note 8.
    20
    *** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
    restitution statute, however, we stated, “[t]he total amount of
    the restitution ordered by the trial court should be the actual
    loss or damage incurred by the victim.”         State v. Johnson, 
    68 Haw. 292
    , 295, 
    711 P.2d 1295
    , 1298 (1985) (emphasis added)
    (citing HRS §§ 706–605(1)(e), 706–624(2)(i)).17
    The plain language of HRS § 706-646(3) does not allow a
    restitution award to include adjustments of bills written off by
    medical providers.     The victim never paid these amounts.         Hence,
    the victim does not need to be “reimbursed” for amounts never
    paid.
    By the same token, this plain language does not allow a
    restitution award to a direct victim to include medical expenses
    paid by an insurer or indemnifier.        A direct victim has not paid
    these amounts, so there is nothing to “reimburse.”
    Amounts paid by a medical or casualty insurer differ from
    the “lost wages” we allowed in Demello, which is now reflected
    in section 706-646(3)(d), which provides restitution for “[l]ost
    earnings, which shall include paid leave.”          This is because a
    victim should be “reimbursed” for paid leave the victim used due
    to a defendant’s offense, which the victim otherwise would have
    been able to take for other reasons.
    17    In Johnson, we used the term “actual loss” to affirm a restitution
    order in the amount of “$5,406.33 less $75.00.” 
    68 Haw. at 295-97
    , 
    711 P.2d at 1298-99
    .
    21
    *** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
    b.   The collateral source rule does not apply
    The circuit court applied the ICA’s opinion in Tuialii, 121
    Hawaiʻi 135, 
    214 P.3d 1125
    , when it ordered this restitution
    award.
    In Tuialii, the ICA held the trial court properly ordered
    restitution to a direct victim of sums already paid by its
    insurer.     121 Hawai‘i at 139, 
    214 P.3d at 1129
    .         The ICA posited
    that HRS § 706-646 does not call for reduction of restitution
    due to insured victims.        121 Hawai‘i at 140, 
    214 P.3d at 1130
    .
    The ICA opined the legislature “had two intended purposes when
    adopting restitution”:
    [I]n the criminal justice system, the victim of crime is
    almost always neglected. By requiring the “convicted
    person” to make restitution and reparation to the
    victim, justice is served. In so doing, the criminal
    repays not only “society” but the persons injured by the
    criminal’s acts. There is a dual benefit to this concept:
    The victim is repaid for his loss and the criminal may
    develop a degree of self-respect and pride in knowing that
    he or she has righted the wrong committed.
    121 Hawai‘i at 141, 
    214 P.3d at 1131
     (second emphasis added)
    (quoting S. Stand. Comm. Rep. No. 789, in 1975 Senate Journal,
    at 1132).     The ICA concluded that requiring a defendant to pay
    restitution, even for amounts indemnified by the direct victim’s
    insurer, “furthers the rehabilitative purposes of HRS § 706-646
    to the greatest extent possible.”          121 Hawai‘i at 142, 
    214 P.3d at 1132
    .18
    18    The ICA concluded a criminal court therefore “need not sort out
    insurance indemnities, subrogation rights, and/or other potential civil law
    22
    *** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
    Justice Pollack’s dissent in Demello opined that, contrary
    to Tuialii, “losses” do not include amounts covered by
    collateral sources like insurance.         See Demello, 136 Hawai‘i at
    216 n.24, 
    361 P.3d at
    443 n.24 (Pollack, J., dissenting) (“[A]n
    order of restitution based on gross receipts, instead of net
    income, would seemingly not represent [the victim’s] actual
    loss.” (emphasis added)).       We now address the issue and agree
    that the collateral source rule does not apply to HRS § 706-646.
    The collateral source rule is a common law doctrine.             Bynum
    v. Magno, 106 Hawai‘i 81, 86 n.11, 
    101 P.3d 1149
    , 1154 n.11
    (2004) (citing Restatement (Second) of Torts § 920A cmt. d
    (1979)).19   At common law, a civil defendant would be entitled to
    a jury trial for amounts over $5,000 under article I, section 13
    of the Hawai‘i Constitution.       The Hawaiʻi Rules of Evidence
    (“HRE”), HRS Chapter 626, would govern a trial determination of
    whether medical expenses are reasonable and causally related to
    implications before ordering a thief or other criminal to repay his victim
    under the criminal restitution statute.” 121 Hawaiʻi at 142, 
    214 P.3d at 1132
    . This court rejected certiorari. State v. Tuialii, No. 29239 (Haw.
    Jan. 11, 2010) (order), denying cert. to 121 Hawai‘i 135, 
    214 P.3d 1125
     (App.
    2009).
    19    As explained in Bynum, in general, the collateral source rule is a tort
    law concept that payments made to an injured person from an independent
    source does not diminish recovery from the wrongdoer. 106 Hawai‘i at 86, 
    101 P.3d at 1154
    . The Restatement (Second) of Torts § 920A provides that, under
    the collateral source rule, payments made to or benefits conferred on an
    injured party from other sources are not credited against the tortfeasor’s
    liability, “although they cover all or a part of the harm for which the
    tortfeasor is liable.” Comment b to section 920A further explains that
    although double compensation may result to the plaintiff, such a benefit
    should redound to the injured party rather than “become a windfall” to the
    party causing the injury. Restatement (Second) of Torts § 920A cmt. b.
    23
    *** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
    an incident.   Pursuant to HRE Rule 1101(d)(3) (2016), however,
    the Hawaiʻi Rules of Evidence do not even apply to sentencing
    proceedings, including restitution determinations.
    The restitution at issue here is simply not based on the
    common law of torts; it is a statutorily authorized remedy under
    the Hawaiʻi Penal Code.   And the goal of restitution has
    traditionally generally been to prevent injustice and unjust
    enrichment, Small v. Badenhop, 
    67 Haw. 626
    , 636 & n.12 & 13, 
    701 P.2d 647
    , 654 & n.12 & 13 (1985), and not to award “damages” to
    which the tort-action collateral source rule applies.
    Hence, we hold the collateral source rule does not apply to
    restitution under HRS § 706-646.      Application of the rule would
    be inconsistent with the plain language of subsection (3), which
    only allows for a victim to be “reimbursed” for actual losses.
    Hence, the ICA’s holding in Tuialii that a restitution
    award can include sums paid by an insurer to a victim is
    overruled.
    c.   Even if HRS § 706-646 was ambiguous, the rule of
    lenity would now allow the restitution awarded
    in this case
    Finally, if a statute is ambiguous, and the legislative
    history does not provide sufficient guidance, we follow
    the rule of lenity.   The rule of lenity provides that where a
    criminal statute is ambiguous, it “must be strictly construed
    against the government and in favor of the accused.”      State v.
    24
    *** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
    Guyton, 135 Hawaiʻi 372, 380, 
    351 P.3d 1138
    , 1146 (2015)
    (citations omitted); see also Bittner v. United States, 
    143 S. Ct. 713
    , 724 (2023) (“Under the rule of lenity, this Court has
    long held, statutes imposing penalties are to be ‘construed
    strictly’ against the government and in favor of individuals.”
    (citation omitted)).
    HRS § 706-646 is not ambiguous with respect to the
    restitution issues addressed in this opinion.     But, even if it
    was, the rule of lenity would mandate that we interpret the
    statute in Borge’s favor based on the reasons already explained.
    For all these reasons, the circuit court erred by awarding
    $1,461,444.01 in restitution to CW.
    V.   Conclusion
    Based on the reasoning above, we vacate the circuit court’s
    September 3, 2020 findings of fact, conclusions of law, and
    order denying motion to dismiss indictment, June 7, 2021
    judgment of conviction and sentence, and June 17, 2021 free-
    standing order of restitution, as well as the ICA’s October 19,
    2022 judgment on appeal, and we remand to the circuit court for
    25
    *** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
    dismissal of the indictment and further proceedings consistent
    with this opinion.
    Hayden Aluli                          /s/ Mark E. Recktenwald
    for petitioner
    /s/ Paula A. Nakayama
    Renee Ishikawa Delizo
    for respondent                        /s/ Sabrina S. McKenna
    /s/ Michael D. Wilson
    /s/ Todd W. Eddins
    26