State v. Hinesley ( 2021 )

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
22-JUL-2021
10:30 AM
Dkt. 62 MO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
STATE OF HAWAI#I, Plaintiff-Appellant,
v.
ANDREW HINESLEY, Defendant-Appellee
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CR. NO. 1CPC-XX-XXXXXXX)
MEMORANDUM OPINION
(By: Ginoza, Chief Judge, Leonard and Nakasone, JJ.)
Plaintiff-Appellant State of Hawai#i (the State)
appeals from the "Findings of Fact, Conclusions of Law, and Order
Granting Dismissal With Prejudice Counts 1-6 and 8-11 of
Indictment" (FFCLO) entered on May 25, 2018, by the Circuit Court
of the First Circuit (Circuit Court).1
On appeal, the State contends the Circuit Court erred
in sua sponte dismissing Counts 8-11 with prejudice. For the
reasons that follow, we affirm in part, vacate in part, and
remand for further proceedings.
I. Background
On September 28, 2017, the State charged Defendant-
Appellee Andrew Hinesley (Hinesley) via indictment as follows:
1
The Honorable Glenn J. Kim presided.
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Sexual Assault in the First Degree in violation of Hawai#i
Revised Statutes (HRS) § 707-730(1)(b) (2014)2 (Counts 1-3);
Sexual Assault in the Third Degree in violation of HRS
§ 707-732(1)(b) (2014)3 (Counts 4-6); Continuous Sexual Assault
of a Minor Under the Age of Fourteen Years in violation of HRS
§ 707-733.6 (2014)4 (Continuous Sexual Assault) (Count 7); Sexual
2
HRS § 707-730 provides, in pertinent part:
§ 707-730 Sexual assault in the first degree. (1) A
person commits the offense of sexual assault in the first
degree if:
....
(b) The person knowingly engages in sexual
penetration with another person who is less than
fourteen years old;
(c) The person knowingly engages in sexual
penetration with a person who is at least
fourteen years old but less than sixteen years
old; provided that:
(i) The person is not less than five
years older than the minor; and
(ii) The person is not legally married to
the minor[.]
(emphases added).
3
HRS § 707-732 provides, in pertinent part:
§ 707-732 Sexual assault in the third degree. (1) A
person commits the offense of sexual assault in the third
degree if:
....
(b) 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;
(c) The person knowingly engages in sexual contact
with a person who is at least fourteen years old
but less than sixteen years old or causes the
minor to have sexual contact with the person;
provided that:
(i) The person is not less than five
years older than the minor; and
(ii) The person is not legally married to
the minor[.]
(emphases added).
4
HRS § 707-733.6 provides, in pertinent part:
§ 707-733.6 Continuous sexual assault of a minor
under the age of fourteen years. (1) A person commits the
offense of continuous sexual assault of a minor under the
age of fourteen years if the person:
(continued...)
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Assault in the First Degree in violation of HRS § 707-730(1)(c)
(Counts 8 & 9); and Sexual Assault in the Third Degree in
violation of HRS § 707-732(1)(c) (Counts 10 & 11).
On April 4, 2018, Hinesley filed a motion to dismiss
Counts 1-6 of the indictment with prejudice, asserting
prosecutorial misconduct due to the State charging Hinesley with
both individual sexual assault offenses and a continuing course
of conduct offense alleged to have been committed during the same
time period, in violation of HRS § 707-733.6(3). At a May 9,
2018 hearing on the motion to dismiss, the parties stipulated
into evidence "Exhibit A," which consists of the grand jury
transcript dated September 28, 2017. The parties did not present
any other evidence or witnesses. The Circuit Court granted
Hinesley's motion and dismissed Counts 1-6 with prejudice.
Additionally, the Circuit Court sua sponte dismissed Counts 8-11
with prejudice, explaining at the hearing:
Now, as to the remaining counts, 8 through 11,
something very similar occurred. Here, the
prosecution again charged a range of time.
Specifically, the eighteen days from September 7th,
the complainant's fourteenth birthday, through
September 25th, for all four counts.
The evidence presented to the grand jury
for this range of time consisted of the complainant's
testimony that following her fourteenth birthday she
"continued seeing the defendant." The unmistakable
(...continued)
(a) Either resides in the same home with a minor
under the age of fourteen years or has recurring
access to the minor; and
(b) Engages in three or more acts of sexual
penetration or sexual contact with the minor
over a period of time, while the minor is under
the age of fourteen years.
....
(3) No other felony sex offense involving the same
victim may be charged in the same proceeding with a charge
under this section, unless the other charged offense
occurred outside the period of the offense charged under
this section, or the other offense is charged in the
alternative. A defendant may be charged with only one count
under this section, unless more than one victim is involved,
in which case a separate count may be charged for each
victim.
(emphases added).
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implication being that the two of them continued all
of the same sexual activity that they had already been
engaging in, from her birthday on September 7th, all
the way until "the last time that he picked her up" on
September 24th.
She further alleges that specifically on
September 24th there was again penis and finger in
vagina, and hand and breast on -- and hand on breast
and butt. In other words, the specific acts charged
in counts 8 through 11.
However, in addition to already testifying that
they had continued to engage in sexual relations from
September 7th up to September 24th, she also testifies
that the next morning, on September 25th, they "had
sex again in the morning." In other words, during the
eighteen day time period charged in counts 8 through
11, as with the earlier 43 day range of time, the
grand jury was presented with testimony that alleged
pretty much continuous sexual activity, and not simply
the discrete sexual acts alleged on September 24th.
So, once again, in this Court's view, what the
prosecution should have done was simply charged counts
8 through 11 as having occurred specifically on
September 24th, which would have completely conformed
to the evidence presented to the grand jury, and
especially since there was no viable charge under
which the prosecution could rope in all the additional
allegations of generalized sexual activity, provided
by the complainant for this eighteen day time period,
since she had already turned fourteen. The
prosecution should simply not have elicited them from
the complainant.
All right. In summary, given the well settled
principles of appropriate charging in this
jurisdiction, together with the explicit mandates of
the applicable statutes, in my view, and with all due
respect, the flaws in charging counts 1 through 6, and
counts 8 through 11, are manifest and major, and
require dismissal of all these counts, on various
grounds, including the simple fact that the grand jury
was not even presented evidence upon which they could
have found the requisite probable cause to support
their return of an indictment for those individual
counts, as they were presented by the prosecution.
Accordingly, the defense motion to dismiss is
granted as to counts 1 through 6, and 8 through 11.
As to whether the dismissal should be with or
without prejudice, I have explained in detail my
reasoning, because I believe it's my job to do so. And
that means that, among other things, I stated what I
think was the proper way to charge these offenses, in
conformity with the evidence presented, so that the
parties can fully understand, if not necessarily agree
with, my reasoning.
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There is no question that all of the dismissed
offenses are serious, especially of course the five
class A felony sex offenses. And when you add the fact
that the alleged victim is a child, it's hard to think
of more serious allegations, short of homicide.
However, as I've already stated, I consider the
instant charging flaws manifest, and frankly, pretty
egregious. And when you combine that with the fact
that as part of my explanation I have explicitly told
the prosecution how I think they should have
proceeded, now to allow the prosecution a second bite
at the apple would be grossly unfair to the defendant,
to the point where it seems to me that to do so would
be tantamount to a violation of his right to
due process.
Accordingly, the dismissal of all these counts
will be with prejudice.
(emphases added).
On May 25, 2018, the Circuit Court entered its findings
of fact (FOF) and conclusions of law (COL) as follows, in
relevant part:
FINDINGS OF FACT
9. Counts 8-11 apply to the time period, between
September 7, 2016 to and including September 25,
2016, for all four counts.
....
18. As to counts 8-11, "[h]ere, the prosecution
again charged a range of time, specifically the
18 days from September 7, 2016, the CW's 14 th
birthday, through September 25, 2016 - for all
four counts. The evidence presented to the
grand jury for this range of time consisted of
the CW's testimony that following her 14 th
birthday, she 'continue[d] seeing [the
Defendant],' the unmistakable implication being
that the two of them continued all of the same
sexual activity that they had already been
engaging in, from her birthday on September 7,
2016 all the way until 'the last time he picked
[the CW] up,"' on September 24th, 2016....
19. As to counts 8-11, " ... [t]he grand jury was
presented with testimony that alleged pretty
much continuous sexual activity, and not simply
the discrete sexual acts alleged on September
24th, 2016."
....
CONCLUSIONS OF LAW
....
6. In so doing, the Court ultimately found that,
"... given the well-settled principles of
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appropriate charging in this jurisdiction,
together with the explicit mandates of the
applicable statutes, in my view and with all due
respect, the flaws in charging counts 1-6 and
counts 8-11 are manifest and major, and require
dismissal of all those counts, on various
grounds, including the simple fact that the
grand jury was not presented evidence upon which
they could even have found the requisite
probable cause to support their return of an
indictment for those individual counts as they
were presented by the prosecution."....
7. The Court expounded further by noting that, "I
consider the instant charging flaws manifest and
frankly pretty egregious ... I have explicitly
told the prosecution how I think they should
have proceeded, now to allow the prosecution a
second bite at the apple would be grossly unfair
to the defendant, to the point where it seems to
me that to do so would be tantamount to a
violation of his right to due process.
Accordingly, the dismissal of these counts
[counts 1-6 and 8-11] will be with prejudice. "
(boldface in original, emphases added).
II. Discussion
A. The Circuit Court Did Not Abuse Its Discretion in Sua
Sponte Dismissing Counts 8-11 of the Indictment
The State contends the Circuit Court's sua sponte
dismissal of Counts 8-11 was based on an erroneous statutory
interpretation. Specifically, the State argues the offenses
charged in Counts 8-11 are alleged to have occurred from
September 7, 2016, to September 25, 2016, which is outside the
period of the Continuous Sexual Assault offense charged in Count
7, which the State alleged to have occurred during a previous
period when the complaining witness (CW) was under fourteen years
of age, from July 25, 2016, to September 6, 2016. The State thus
contends it is not precluded from charging Hinesley with the
offenses in Counts 8-11 under HRS § 707-733.6(3), which provides,
in relevant part: "No other felony sex offense involving the same
victim may be charged in the same proceeding with a charge under
this section, unless the other charged offense occurred outside
the period of the offense charged under this section." (emphasis
added). In this regard, however, it appears the State
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misapprehends the Circuit Court's ruling, because the record does
not reflect the Circuit Court dismissed Counts 8-11 based on HRS
§ 707-733.6(3). Rather, it appears the Circuit Court sua sponte
dismissed Counts 8-11 because of a lack of evidence presented to
the grand jury to support the extended time frame in those
charges.
The State also argues the Circuit Court erred in ruling
it was improper to charge a "range of time" under Counts 8-11,
noting the Circuit Court did not cite any authority. Further,
the State contends that Counts 8-11 are consistent with State v.
Arceo, 84 Hawai#i 1, 13, 928 P.2d 843, 855 (1996), in which the
Hawai#i Supreme Court stated:
In general, the precise time and date of the
commission of an offense is not regarded as a
material element. Accordingly, this court has
long recognized that, in cases involving sexual
abuse of minors, it is sufficient, in the
indictment, to allege that the offense occurred
over a particular time span.
(citations, quotation marks, brackets omitted).
A trial court's ruling on a motion to dismiss an
indictment is reviewed for an abuse of discretion. State v.
Mendonca, 68 Haw. 280, 283, 711 P.2d 731, 734 (1985) (citing
State v. Corpuz, 67 Haw. 438, 440, 690 P.2d 282, 284 (1984)). We
are mindful that dismissal of an indictment is required only in
flagrant cases in which the grand jury has been overreached or
deceived in some significant way. State v. Wong, 97 Hawai#i 512,
526, 40 P.3d 914, 928 (2002) (citing Mendonca, 68 Haw. at 283,
711 P.2d at 734; State v. Pulawa, 62 Haw. 209, 215, 614 P.2d 373,
377 (1980)).
From our reading of the record, the Circuit Court
dismissed charges of Sexual Assault 1 and Sexual Assault 3 in
Counts 8-11 because the charges did not comport with the evidence
presented to the grand jury. For Counts 8-11, the State alleged
the following:
COUNT 8: On or about September 7, 2016, to and
including September 25, 2016, in the City and County
of Honolulu, State of Hawai#i, ANDREW HINESLEY, did
knowingly engage in sexual penetration with P.W., who
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was at least fourteen years old but less than sixteen
years old, by inserting his penis into her genital
opening and ANDREW HINESLEY was not less than five
years older than P.W. and was not legally married to
her, thereby committing the offense of Sexual Assault
in the First Degree in violation of Section 707-
730(1)(c) of the Hawai#i Revised Statutes....
COUNT 9: On or about September 7, 2016, to and
including September 25, 2016, in the City and County
of Honolulu, State of Hawai#i, ANDREW HINESLEY, did
knowingly engage in sexual penetration with P.W., who
was at least fourteen years old but less than sixteen
years old, by inserting his finger into her genital
opening and ANDREW HINESLEY was not less than five
years older than P.W. and was not legally married to
her, thereby committing the offense of Sexual Assault
in the First Degree in violation of Section 707-
730(1)(c) of the Hawai#i Revised Statutes....
COUNT 10: On or about September 7, 2016, to and
including September 25, 2016, in the City and County
of Honolulu, State of Hawai#i, ANDREW HINESLEY, did
knowingly engage in sexual penetration with P.W., who
was at least fourteen years old but less than sixteen
years old, by placing his hand on her breast, and
ANDREW HINESLEY was not less than five years older
than P.W. and was not legally married to her, thereby
committing the offense of Sexual Assault in the First
Degree in violation of Section 707-732(1)(c) of the
Hawai#i Revised Statutes....
COUNT 11: On or about September 7, 2016, to and
including September 25, 2016, in the City and County
of Honolulu, State of Hawai#i, ANDREW HINESLEY, did
knowingly engage in sexual penetration with P.W., who
was at least fourteen years old but less than sixteen
years old, by placing his hand on her buttock, and
ANDREW HINESLEY was not less than five years older
than P.W. and was not legally married to her, thereby
committing the offense of Sexual Assault in the First
Degree in violation of Section 707-732(1)(c) of the
Hawai#i Revised Statutes....
(emphases added).
The Hawai#i Supreme Court has expressed that:
A grand jury indictment must be based on
probable cause. "Probable cause" has been
defined as a state of facts as would lead a
person of ordinary caution or prudence to
believe and conscientiously entertain a strong
suspicion of the guilt of the accused.
Furthermore, in order to support an indictment,
the prosecution must provide evidence of each
essential element of the charged offense to the
grand jury. If no evidence is produced as to a
material element of the offense, a person of
ordinary caution and prudence could not have a
strong suspicion that the defendant is guilty of
the charged crime.
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State v. Taylor, 126 Hawai#i 205, 218, 269 P.3d 740, 753 (2011)
(citations, quotation marks, brackets omitted).
During the grand jury proceedings, the CW gave general
testimony from which it could be inferred, as the Circuit Court
found, that "pretty much continuous sexual activity" occurred
between the CW and Hinesley after the CW turned 14 years old, but
the CW also testified about discrete sexual acts on September 24,
2016, and the following day:
Q Did you continue seeing him when you were 14?
Af --
A Yes.
Q After you turned 14 years of age?
A Yes.
Q Did you turn 14 on September 7, 2016?
A Yes.
Q Did the last time that he picked you up, was
that on September 24, 2016?
A Yes.
Q What happened on that last day that he picked
you up?
A He took me to his apartment and we had sex.
Q Okay. Again, when you say that you had sex,
can you explain what you mean by that?
A He put his penis inside my vagina.
Q Did he touch you anywhere on your body?
A His hands on my breasts, my butt, and my
thighs.
Q And did he insert his fingers anywhere?
A Yes.
Q Where did he do so?
A My vagina.
....
Q And what happened after you stayed at his
home overnight?
A We had sex again in the morning.
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Based on the foregoing, the Circuit Court found in FOF 18:
As to counts 8-11, "[h]ere, the prosecution again
charged a range of time, specifically the 18 days from
September 7, 2016, the CW's 14 th birthday, through
September 25, 2016 - for all four counts. The
evidence presented to the grand jury for this range of
time consisted of the CW's testimony that following
her 14th birthday, she 'continue[d] seeing [the
Defendant],' the unmistakable implication being that
the two of them continued all of the same sexual
activity that they had already been engaging in, from
her birthday on September 7, 2016 all the way until
'the last time he picked [the CW] up,'" on September
24th, 2016.
(emphases added). What the prosecution should have done,
according to the Circuit Court,
... was simply charge[] counts 8 through 11 as having
occurred specifically on September 24th, which would
have completely conformed to the evidence presented to
the grand jury, and especially since there was no
viable charge under which the prosecution could rope
in all the additional allegations of generalized
sexual activity, provided by the complainant for this
eighteen day time period, since she had already turned
fourteen. The prosecution should simply not have
elicited them from the complainant.
(emphases added). Given the record, particularly the lack of
evidence presented to the grand jury about any incidents other
than on September 24, 2016, and September 25, 2016, we conclude
the Circuit Court did not abuse its discretion in dismissing
Counts 8-11.
In each of the counts in Counts 8-11, the State alleges
a discrete sexual act during a period of eighteen days. We agree
with the Circuit Court that given the testimony presented to it,
the grand jury would not have been able to find probable cause
and return the indictment for these alleged sexual acts, other
than on either September 24, 2016, or September 25, 2016. "An
indictment must enable a grand jury to determine that probable
cause exists that the accused committed a violation of the
charged offense both as to the elements of the offense and the
concomitant culpable state of mind." State v. Stan's
Contracting, Inc., 111 Hawai#i 17, 31–32, 137 P.3d 331, 345–46
(2006).
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We conclude that Arceo is distinguishable given the
CW's specific testimony to the grand jury in this case about
sexual offenses occurring on specific dates. In Arceo, the
Hawai#i Supreme Court stated that "sexual assault in the first
degree, in violation of HRS § 707–730(1)(b), and sexual assault
in the third degree, in violation of HRS § 707–732(1)(b), are not
— and cannot be — "continuing offenses" and [] each distinct act
in violation of these statutes constitutes a separate offense
under the HPC." 84 Hawai#i at 21, 928 P.2d at 863 (emphasis
added, footnote omitted). Similarly here, with regard to the
charges in Counts 8-11 under HRS § 707–730(1)(c) and HRS §
707–732(1)(c), each distinct act in violation of the statutes
constituted a separate offense, and here CW testified before the
grand jury about specific events on specific dates.
Given the record in this case, the Circuit Court did
not abuse its discretion in dismissing Counts 8-11 on the basis
that the evidence presented to the grand jury did not support
probable cause for the charges during the range of time set forth
therein.
B. The Circuit Court Did Not Sufficiently Address
Why Dismissal with Prejudice Was Warranted
The State also contends that, assuming dismissal of
Counts 8-11 was appropriate, the Circuit Court erred in
dismissing those counts with prejudice. In this regard, we agree
with the State, to the extent the trial court's stated reasons do
not allow us to "accurately assess whether the trial court duly
exercised its discretion." State v. Mageo, 78 Hawai#i 33, 38,
889 P.2d 1092, 1096 (App. 1995) (citing State v. Moriwake, 65
Haw. 47, 57 n.16, 642 P.2d 705, 713 n.16 (1982)).
We have recognized the trial court's power to dismiss
sua sponte an indictment with prejudice:
Trial courts have the power to dismiss sua sponte an
indictment with prejudice and over the objection of
the prosecuting attorney within the bounds of duly
exercised discretion. The parameters within which
this discretion is properly exercised requires a
balancing of the interest of the state against
fundamental fairness to a defendant with the added
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ingredient of the orderly functioning of the court
system.
Mageo, 78 Hawai#i at 37, 889 P.2d at 1096 (quoting Moriwake, 65
Haw. at 56, 647 P.2d at 712 (brackets, internal quotation marks,
and citation omitted)). However,
a judge's inherent power to dismiss an indictment is not
generally so broad as to dismiss an indictment with
prejudice before trial unless the State's misconduct
represents a serious threat to the integrity of the judicial
process or there is a clear denial of due process, a
violation of some constitutional right, is an arbitrary
action, or is the result of some other governmental
misconduct.
Wong, 97 Hawai#i at 527, 40 P.3d at 929 (citing State v. Alvey,
67 Haw. 49, 57-58, 678 P.2d 5, 10 (1984)) (emphasis added). The
Hawai#i Supreme Court has cautioned that:
a trial court's inherent power to dismiss an indictment is
not a broad power and that trial courts must recognize and
weigh the State's interest in prosecuting crime against
fundamental fairness to the defendant ... [and] made clear
that, even if "there are serious questions" about a material
element of a crime, it is not within the trial court's
discretion to usurp the function of the trier of fact before
trial.
Id. (quoting State v. Lincoln, 72 Haw. 480, 491, 825 P.2d 64,
70–71 (1992)). At the same time,
[w]e are cognizant of the State's strong interest in
prosecuting crime, but we are equally cognizant that
the State's duty is to pursue justice, not
convictions, and the prosecutor has a duty to act as a
minister of justice to pursue prosecutions by fair
means.
Wong, 97 Hawai#i at 527, 40 P.3d at 929.
In Mageo, we affirmed a District Court's grant of a
motion to dismiss an indictment with prejudice because service of
penal summonses was unreasonably delayed. Id. at 33, 889 P.2d at
1092. In Moriwake, the Hawai#i Supreme Court affirmed the trial
court's dismissal of an indictment with prejudice for
manslaughter following two hung jury mistrials.5 Id. at 48, 647
5
The Hawai#i Supreme Court in Moriwake set forth the following factors
which the trial court should consider in exercising its inherent power to
dismiss a criminal case with prejudice after mistrial:
(continued...)
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P.2d at 708. The factual circumstances in Mageo and Moriwake are
not the same as this case. Nonetheless, the proposition that the
trial court has inherent power to dismiss a criminal indictment
with prejudice, and that it must do so while "balancing [] the
interest of the state against fundamental fairness to a defendant
with the added ingredient of the orderly functioning of the court
system," is applicable here. Mageo, 78 Hawai#i at 37, 889 P.2d
at 1096. In Mageo, given the District Court's scant ruling that
alluded to its concern with avoiding unjustified delay, we
advised:
In the future, trial courts exercising this power
should issue written factual findings setting forth
their reasons for dismissal with prejudice so that a
reviewing court may accurately assess whether the
trial court duly exercised its discretion.
Id. at 38, 889 P.2d at 1097 (citation omitted). Likewise, the
Hawai#i Supreme Court has noted that:
[b]ecause of the nature of criminal proceedings, and
because they are in the interests and for the
protection of the public, there is a sound basis in
public policy for requiring the judge who assumes the
serious responsibility of dismissing a case to set
forth his reasons for doing so in order that all may
know what invokes the court's discretion and whether
its action is justified.
Moriwake, 65 Haw. at 57 n.16, 647 P.2d 705, 713 n.16 (citation
omitted)).
Here, the Circuit Court set forth written findings as
to why the charges were flawed, and at the hearing noted that the
offenses involved are serious and involve a child, but the
(...continued)
(1) the severity of the offense charged; (2) the
number of prior mistrials and the circumstances of the
jury deliberation therein, so far as is known; (3) the
character of prior trials in terms of length,
complexity and similarity of evidence presented; (4)
the likelihood of any substantial difference in a
subsequent trial, if allowed; (5) the trial court's
own evaluation of relative case strength; and (6) the
professional conduct and diligence of respective
counsel, particularly that of the prosecuting
attorney.
Id. at 56, 647 P.2d at 712-13.
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Circuit Court's explanation (both at the hearing and in its
written findings) for dismissing Counts 8-11 with prejudice was
only as follows:6
"I consider the instant charging flaws manifest and
frankly pretty egregious ... I have explicitly told
the prosecution how I think they should have
proceeded, now to allow the prosecution a second bite
at the apple would be grossly unfair to the defendant,
to the point where it seems to me that to do so would
be tantamount to a violation of his right to due
process. Accordingly, the dismissal of these counts
[counts 1-6 and 8-11] will be with prejudice. "
(emphasis in original). Given this record, we conclude there are
insufficient findings in the record to determine whether the
Circuit Court properly exercised its discretion under Wong,
Mageo, and Moriwake to dismiss Counts 8-11 with prejudice. The
Circuit Court provides no clear reason or legal authority for its
finding that the State's conduct was "egregious" or for its view
that, having explained the charging flaws to the State, it would
be grossly unfair to Hinesley and violate his due process rights
to dismiss Counts 8-11 without prejudice. Further, there are no
written findings balancing the interests of the State in
prosecuting crime, including assessing the strength or weakness
of the case as to Counts 8-11, or addressing the orderly
functioning of the court system.
Therefore, we remand for further proceedings on the
issue of whether Counts 8-11 should be dismissed with or without
prejudice.
III. Conclusion
Based on the foregoing, the "Findings of Fact,
Conclusions of Law and Order Granting Dismissal with Prejudice
6
In his motion to dismiss indictment, Hinesley asserted the following
factors to justify dismissing counts 1-6 with prejudice: (1) the prosecutor's
state of mind; (2) other prosecutorial misconduct because the CW had sex with
as many as eight men, but only two were charged; (3) the CW does not want to
prosecute and purportedly feels guilty because she initiated contact with
multiple other men for sex and thus was not a "child" as contemplated by the
Legislature in enacting the pertinent statutory offenses; (4) the impact of
recharging the case; and (5) Hinesley's loss of remedies. Hinesley's motion
did not seek dismissal as to Counts 8-11, which were dismissed sua sponte by
the Circuit Court.
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NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Counts 1–6 and 8–11 of Indictment" entered on May 25, 2018, by
the Circuit Court of the First Circuit, is affirmed as to the
dismissal of Counts 8-11. However, we vacate the dismissal of
Counts 8-11 with prejudice and remand the case to the Circuit
Court to further address whether to dismiss with or without
prejudice and to enter appropriate findings on this issue.
DATED: Honolulu, Hawai#i, July 22, 2021.
On the briefs: /s/ Lisa M. Ginoza
Chief Judge
Stephen K. Tsushima,
Deputy Prosecuting Attorney, /s/ Katherine G. Leonard
for Plaintiff-Appellant. Associate Judge
Jon N. Ikenaga, /s/ Karen T. Nakasone
Deputy Public Defender, Associate Judge
For Defendant-Appellee.
15