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In re D.T.

Intermediate Court of Appeals of Hawaii

August 23, 2013

IN THE INTEREST OF D.T.

NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER

APPEAL FROM THE FAMILY COURT OF THE SECOND CIRCUIT (FC-J NO. 87911, REF. NO. 110-605)

Benjamin E. Lowenthal (Law Office of Philip H. Lowenthal) for Respondent-Appellant.

Artemio C. Baxa Deputy Prosecuting Attorney County of Maui for Petitioner-Appellee.

Foley, Presiding Judge, Leonard and Ginoza, JJ.

SUMMARY DISPOSITION ORDER

Respondent-Appellant D.T. (Minor) appeals from the following rulings of the Family Court of the Second Circuit[1](family court): (1) the May 10, 2011 "Findings of Facts and Conclusions of Law; and Order Denying, in Part and Granting, in Part, Minor's Motion for Reconsideration" (Reconsideration Order); (2) the July 19, 2011 "Order Following a Contested Restitution Hearing on July 15, 2011" (Order Re: Restitution); and (3) the July 28, 2011 "Decree Re: Modification and Change of Law Violations Decree" (Decree Re: Modification).

On appeal, Minor raises the following points of error: (1) the family court erred in awarding restitution because the State failed to prove what losses resulted from Minor's actions; and (2) the family court erred in failing to merge eight Burglary charges, seven Theft charges, and eight Criminal Property Damage charges into one charge each for Burglary, Theft, and Criminal Property Damage because they arose out of the same continuing course of conduct. With regard to his second point of error, Minor contends that Conclusions of Law (COL) 34, 35, and 44 in the Reconsideration Order are erroneous.

Upon careful review of the record and the briefs submitted by the parties and having given due consideration to the arguments advanced and the issues raised by Minor, as well as the relevant legal authority, we resolve Minor's points of error as follows:

(1) The family court ordered Minor to make restitution in the amount of $2, 545.40 for repairs to nine classroom door locks. Hawaii Revised Statutes (HRS) § 571-48(11) (2006 Repl.) provides, in pertinent part, that the family court "may order any person adjudicated pursuant to section 571- 11(1) to make restitution of money or services to any victim who suffers loss as a result of the child's action[.]" Minor argues that the family court erred in awarding restitution without proof that the losses were caused by Minor's actions.

In separate counts in the Petition, each relating to a specific classroom, Minor was charged as a principal and/or accomplice of intentionally or knowingly damaging the "door, door handle, door knob, and/or locking mechanism" for ten classrooms (classrooms P-8, P-2, P-3, P-4, P-5, H-101, G-101, G-104, P-l, and 1-102). After trial, the family court determined that the State had met its burden of proof as to eight counts of Criminal Property Damage relating to, respectively, classrooms P-8, P-2, P-3, P-4, P-5, H-101, G-101, G-104. The family court ruled that the State did not meet its burden of proof for the Criminal Property Damage charges alleged in counts 26 and 28, which relate to classrooms P-l and 1-102, respectively.

On January 27, 2011, the family court initially ordered restitution of $3, 713.84. Subsequently, a contested restitution hearing was held on July 15, 2011, wherein the State submitted into evidence two invoices from the locksmith who repaired the doors. The first invoice (Invoice #1) shows repairs for ten classrooms and twelve doors (two classrooms having two doors that required repairs). The repairs reflected in Invoice #1 include the eight classrooms related to the Criminal Property Damage counts for which Minor was adjudicated a law violator (i.e., P-8, P-2, P-3, P-4, P-5, H-101, G-101, and G-104). The second invoice (Invoice #2) was for repairs to additional doors that were not included in the first invoice.

In the Order Re: Restitution, the family court reduced the amount of restitution by omitting the charges from Invoice #2 ($333.84), deducting the cost for three of the more expensive "Lever IC" classroom locks ($540.00) in Invoice #1, deducting labor for the three locks ($262.50), and deducting taxes on the costs deducted from Invoice #1 ($32.10). It appears that the three door locks removed from restitution correspond to "P-l: 1 door and 1-102: 2 doors" that, in turn, relate to the Criminal Property Damage charges in counts 26 and 28, which were dismissed. The family court thus reduced the restitution amount to cover nine doors in eight classrooms, resulting in the amount of $2, 545.40.

Minor argues on appeal that "[t]here is no way to determine if the restitution award includes losses that did not result from [Minor's] actions." However, Minor does not challenge the family court's adjudication of him as a law violator for the eight Criminal Property Damage charges. Moreover, whether Minor was the principal or an accomplice in damaging the eight classroom doors, the loss was "a result of [Minor's] actions[.] " HRS § 571-48(11).

Restitution may thus be ordered for the damage as alleged to each classroom identified in the Criminal Property Damage charges for which Minor was adjudicated. It appears that the family court relied upon Invoice #1 in ordering restitution for nine doors in the eight classrooms that Minor was found to have damaged. For the subject classrooms, invoice #1 reflects that each classroom had one door repaired, except classroom H-101 had two doors repaired. We note, however, that the Petition in count 19 only charged Minor with Criminal Property Damage to one door for classroom H-101, and the family court's adjudication of Minor as a law violator for count 19 was ...


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