State v. Hiapo

FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
20-OCT-2025
08:06 AM
Dkt. 114 OP

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI‘I

---o0o---

STATE OF HAWAI‘I, Plaintiff-Appellant,
v.
KAIIMI SKIP HIAPO, Defendant-Appellee

NO. CAAP-XX-XXXXXXX

APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT
(CASE NO. 2CPC-XX-XXXXXXX)

OCTOBER 20, 2025

LEONARD, PRESIDING JUDGE, MCCULLEN AND GUIDRY, JJ.

OPINION OF THE COURT BY GUIDRY, J.

Plaintiff-Appellant State of Hawaiʻi (State) appeals

from the "Findings of Fact [(FOFs)], Conclusions of Law

[(COLs)], and Order Granting the Defendant[-Appellee Kaiimi Skip

Hiapo's (Hiapo)] Motion to Dismiss for Violation of [Hawaii

Revised Statutes (HRS)] § 701-109(2)[ (2014)]" (Dismissal

Order), filed on April 27, 2022 by the Circuit Court of the

Second Circuit (circuit court). 1

1 The Honorable Kelsey T. Kawano presided.
FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER

This appeal arises out of the State's separate

prosecutions of Hiapo by a five-count felony indictment (the

Indictment) in the circuit court, and by a two-count complaint

(the Abuse Complaint) in the Family Court of the Second Circuit

(family court) case no. 2FFC-XX-XXXXXXX. 2 The Indictment charged

Hiapo with terroristic threatening and various firearms

offenses. The Abuse Complaint charged Hiapo with physical abuse

of a family or household member.

At issue is whether the circuit court erred in

concluding that, pursuant to HRS § 701-109(2), the alleged

offenses charged in the Indictment and the Abuse Complaint arose

"from a single episode," and in dismissing the Indictment in its

entirety on that basis. We hold that Hiapo's alleged

terroristic threatening and physical abuse were part of the same

episode of escalating domestic violence directed towards the

complaining witness (CW), such that the circuit court did not

abuse its discretion in dismissing Count 1 of the Indictment.

However, Hiapo's alleged carrying or possession of a firearm and

ammunition, and discharge of a loaded firearm, were not "legally

connected" and did not "share substantial factual overlap" with

the physical abuse. Hiapo's alleged firearms violations and

2 Pursuant to Hawaii Rules of Evidence Rule 201(c), this court
takes judicial notice of the proceedings in family court case no. 2FFC-21-
0000086. Judicial notice is appropriate because the proceedings are a
significant component of the present inquiry.

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physical abuse therefore did not arise out of the same episode,

and the circuit court abused its discretion in dismissing Counts

2 through 5 of the Indictment. Accordingly, we affirm in part

and vacate in part the Dismissal Order.

I. Background and Proceedings Below

On February 1, 2021, the State filed the Indictment,

which charged Hiapo with the following five counts:

COUNT ONE: . . .
That on or about the 18th day of December, 2020, in
the County of Maui, State of Hawaii, [Hiapo], with the
intent to terrorize, or in reckless disregard of the risk
of terrorizing [the CW], did threaten, by word or conduct,
to cause bodily injury to [the CW], with the use of a
dangerous instrument or a simulated firearm, to wit, a .22
caliber rifle, thereby committing the offense of
Terroristic Threatening in the First Degree in violation of
Section 707-716(1)(e) of the [HRS].

. . . .

COUNT TWO: . . .
That on or about the 18th day of December, 2020, in
the County of Maui, State of Hawaii, [Hiapo] did
intentionally fire a firearm in a manner which recklessly
placed another person in danger of death or serious bodily
injury, thereby committing the offense of Reckless
Endangering in the First Degree in violation of Section
707-713(1) of the [HRS].

. . . .

COUNT THREE: . . .
That on or about the 18th day of December, 2020, in
the County of Maui, State of Hawaii, [Hiapo] did
intentionally or knowingly carry or possess an object, with
intent, knowledge, or reckless disregard of the substantial
and unjustifiable risk that the object was a loaded firearm
other than a pistol or revolver, to wit, a loaded .22
caliber rifle, and did intentionally, knowingly, or
recklessly fail to confine the loaded firearm to his place
of business, residence, or sojourn, other than carrying an
unloaded firearm in an enclosed container from the place of
purchase to his place of business, residence, or sojourn or
between those places and a place of repair, a target range,
a licensed dealer's place of business, an organized,
scheduled firearms show or exhibit, a place of formal

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hunter or firearm use training or instruction, or a police
station, thereby committing the offense of Place to Keep
Loaded Firearms Other than Pistols and Revolvers in
violation of Section 134-23(a) of the [HRS].

COUNT FOUR: . . .
That on or about the 18th day of December, 2020, in
the County of Maui, State of Hawaii, [Hiapo], while on a
public highway, with knowledge or reckless disregard of the
substantial and unjustifiable risk that he was on a public
highway, did intentionally or knowingly carry on his
person, or have in his possession, or did carry in a
vehicle, an object, with intent, knowledge, or reckless
disregard of the substantial and unjustifiable risk that
the object was a firearm loaded with ammunition, to wit, a
loaded .22 caliber rifle, thereby committing the offense of
Carrying or Possessing a Loaded Firearm on a Public Highway
in violation of Section 134-26(a) of the [HRS].

COUNT FIVE: . . .
That on or about the 18th day of December, 2020, in
the County of Maui, State of Hawaii, [Hiapo] did
intentionally or knowingly carry or possess an object, with
intent, knowledge, or reckless disregard of the substantial
and unjustifiable risk that the object was ammunition, and
did intentionally, knowingly, or recklessly fail to confine
the ammunition to his place of business, residence, or
sojourn, other than carrying the ammunition in an enclosed
container from the place of purchase to his place of
business, residence, or sojourn or between those places and
a place of repair, a target range, a licensed dealer's
place of business, an organized, scheduled firearms show or
exhibit, a place of formal hunter or firearm use training
or instruction, or a police station, thereby committing the
offense of Place to Keep Ammunition in violation of Section
134-27(a) of the [HRS].

(Emphasis added.)

On March 4, 2021, the State separately filed the two-

count Abuse Complaint in family court. The Abuse Complaint, as

amended in May 2021, charged Hiapo with:

COUNT ONE: . . .
That on or about the 17th day of December, 2020, in
the County of Maui, State of Hawaii, [Hiapo], did
intentionally, knowingly or recklessly engage in and cause
physical abuse of a family or household member, to wit,
[the CW], thereby committing the offense of Abuse of Family
or Household Member in violation of Sections 709-906(1)
and/or (5)(a) of the [HRS].

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COUNT TWO: . . .
That on or about the 18th day of December, 2020, in
the County of Maui, State of Hawaii, [Hiapo], did
intentionally, knowingly or recklessly engage in and cause
physical abuse of a family or household member, to wit,
[the CW], thereby committing the offense of Abuse of Family
or Household Member in violation of Sections 709-906(1)
and/or (5)(a) of the [HRS].

(Emphasis added.)

Hiapo's circuit court felony prosecution and family

court abuse prosecution proceeded separately, though the record

reflects that the State and defense discussed the possibility of

a "global resolution" that would address the charges in both

cases. At defense counsel's request, the family court continued

the pretrial conference multiple times, to give the parties

additional time to discuss the possibility of a plea agreement.

Ultimately, the State and Hiapo were unable to reach a

plea agreement. In March 2022, Hiapo requested to enter a

change in plea in the family court case. The family court

accepted Hiapo's new plea of no contest to the two counts

charged by the Abuse Complaint, and Hiapo was sentenced to two

years of probation.

In April 2022, shortly after pleading no contest to

the family court abuse charges, Hiapo moved in circuit court to

dismiss the Indictment. Hiapo contended that the State violated

HRS § 701-109(2) by charging him in two separate prosecutions,

2FFC-XX-XXXXXXX and 2CPC-XX-XXXXXXX, for offenses that arose out

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of the "same domestic abuse episode." The circuit court granted

Hiapo's motion to dismiss, explaining, in relevant part,

The applicable legal standard is the same episode
test. . . .

. . . .

[M]oving on to the legal test of same episode.
Compulsory joinder, this rule requires dismissal of a
subsequent charge under the same episode analysis, which
means that all offenses that grow out of a single criminal
act[,] occurrence, episode[,] or transaction are considered
the same offense for purposes of determining whether a
subsequent prosecution is barred.

And under that test[,] once an individual has been
prosecuted for one offense, that individual [cannot] be
later prosecuted for another offense committed in the same
episode, even if the offenses were committed by distinct
acts. That's the holding in [State v. Carroll, 63 Haw.
345, 627 P.2d 776 (1981)], and [State v. Lessary, 75 Haw.
446, 865 P.2d 150 (1994)].

So under [State v. Akau, 118 Hawaiʻi 44, 185 P.3d 229
(2008),] the subsequent prosecution is barred where the
three requirements for compulsory joinder are met.

First, this was a distinct act, but was during the
same episode. Two, the prosecutor knew of the subsequent
charge at the time of the prior charge was brought [sic].
And three, the same [c]ourt has jurisdiction over both
prior and subsequent charges.

In this case all three of those requirements have
been met.

With regard to looking at analysis of the
circumstances, there's been a lot of argument about that
also. And under [Akau,] the Hawai[ʻ]i Supreme Court has
adopted a probable cause analysis for determining the
circumstances factor of the same episode test.

And the [c]ourt states in [Akau] that when examining
the circumstances of offenses alleged to be part of the
same episode, the [c]ourt is focused primarily on whether
the facts and circumstances of the first discovered offense
provided . . . sufficient probable cause to suspect that
[Hiapo] had committed or would commit the second discovered
criminal offense. And that absolutely is established in
this case.

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The circuit court entered FOFs and COLs, the following

of which are challenged by the State on appeal,

[FOF] 4. Exhibit A provides the following:

a. On December 17, 2020 at about 7:00 p.m.,
[Hiapo] and the [CW], were fighting within
their Pukalani residence. During the
fight, the CW reported that [Hiapo] threw
a set of keys that hit her on the
forehead.

b. The next morning, December 18, 2020 at
about 7:30 - 10:00 a.m., their fight
continued. The CW reports that [Hiapo]
forcibly grabbed her by the arms, shoved
her to the side, and then left their
residence.

c. The State subsequently charged [Hiapo]
with two counts of Abuse of a Family or
Household Member based upon the events of
December 17 and 18, 2020. These two
criminal offenses were charged together in
2FFC-21-086.

d. On December 18, 2020 at approximately
12:23 p.m., the CW received a call from
[Hiapo] where she reported [Hiapo] made
threats towards her and mentioned a gun.

e. After 1:00 p.m., [Hiapo] went to the CW's
current location at her grandmother's
house. Upon arriving, [Hiapo] screamed
and demanded to see the CW, he made
threats regarding her, and then discharged
a rifle once into the air. A witness
reported that he grabbed the muzzle of
[Hiapo's] rifle, a struggle ensued, and
[Hiapo] discharged the rifle twice more.

f. At approximately 1:50 p.m., MPD officers
arrived on scene. At approximately 2:15
p.m., MPD Officer Corrine Chang
interviewed the CW. During the interview,
the CW reported the abuse on the evening
of December 17, 2020, the abuse earlier in
the day on December 18, 2020, the threats
made by [Hiapo] over the phone, and
[Hiapo's] conduct prior to MPD arriving on
scene.

g. At approximately 3:02 p.m., MPD Detective
Mark Hada interviewed [Hiapo] at the

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Wailuku Police Station. [Hiapo] discussed
the entire criminal episode from December
17, 2020 through the morning and afternoon
of December 18, 2020.

h. On or about January 4, 2021, Detective
Hada produced a report that was forwarded
to the prosecuting attorney's office for
review. In his report, Detective Hada,
summarized the entire criminal episode,
and suggested criminal charges that
included all the charges in this case, as
well as those ultimately charged
separately under 2FFC-21-086.

. . . .

[COL] 10. Additionally, the key witnesses in both cases are
largely the same, MPD investigated the entire
criminal episode at one time, and Detective Hada
identified probable cause and suggested all the
criminal charges in his report.

[COL] 11. Weighing the three factors of the Carroll test,
the [circuit court] concludes the criminal charges
in both cases arises from a single episode, and
therefore must be joined under HRS § 701-109(2).

. . . .

[COL] 13. The State charged these cases separately, did not
move to join the cases, and has therefore violated
HRS § 701-109(2).

[COL] 14. Because a judgment has already been entered in
2FFC-21-086, subsequent prosecution of this matter
is barred by HRS § 701-109(2).

This appeal followed.

II. Discussion

On appeal, the State contends that the circuit court

erred by dismissing the Indictment. We review the circuit

court's dismissal of the Indictment for abuse of discretion.

State v. Borge, 152 Hawaiʻi 458, 464, 526 P.3d 435, 441 (2023).

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Pursuant to HRS § 701-109(2),

[A] defendant shall not be subject to separate trials for
multiple offenses based on the same conduct or arising from
the same episode, if such offenses are known to the
appropriate prosecuting officer at the time of the
commencement of the first trial and are within the
jurisdiction of a single court.

(Emphasis added.)

As the Hawaiʻi Supreme Court has explained,

[U]nder [HRS] § 701-111(1)(b)[ (2014)], the State is
prohibited from subsequently prosecuting a defendant for
any offense which should have been joined in a prior trial
under § 701-109(2).

Section 701-109(2) reflects a policy that all charges that
arise under one episode be consolidated in one trial so
that a defendant need not face the expense and
uncertainties of multiple trials based on essentially the
same episode. Section 701-109(2) is designed to prevent
the State from harassing a defendant with successive
prosecutions where the State is dissatisfied with the
punishment previously ordered or where the State has failed
to convict the defendant.

State v. Servantes, 72 Haw. 35, 38, 804 P.2d 1347, 1348 (1991)

(citations omitted).

It is undisputed that the offenses charged in the

Indictment and Abuse Complaint were known to the State "at the

time of the commencement of the first trial," and that the

offenses were within the jurisdiction of the circuit court. See

HRS § 701-109(2). At issue, therefore, is whether the offenses

charged by the Indictment and Abuse Complaint were "so closely

related in time, place[,] and circumstances that a complete

account of one charge cannot be related without referring to

details of the other charge," such that they should have been

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tried in the same proceeding. See Carroll, 63 Haw. at 351, 627

P.2d at 780.

In State v. Sardinha, which was decided while this

case was pending on appeal, 3 the Hawaiʻi Supreme Court explained

the "circumstances element" of the "single-episode test" as

follows,

[T]he fact that there may be some factual overlap between
multiple charges does not require joinder. Rather, the two
charges must be cross-related such that a complete account
of one charge necessarily includes details of the other
charge.

. . . .

Considering our precedents, this court has declined to hold
that multiple offenses arise from a single episode simply
because the offenses share some common facts. . . .

Our precedents make clear, instead, that multiple offenses
arise from the same episode when the offenses are legally
connected and/or share substantial factual overlap. . . .

. . . .

[T]he presence or absence of probable cause is not
dispositive in determining whether multiple offenses are so
closely related in circumstances that a complete account of
one charge cannot be related without referring to details
of the other charge. Nevertheless, the presence of
probable cause may be relevant where, for instance, there
are common elements between the statutory requirements of
multiple offenses.

152 Hawaiʻi 304, 309-14, 526 P.3d 281, 286-91 (2023) (emphasis

added) (cleaned up).

Sardinha clarified that probable cause was no longer

determinative of whether multiple offenses present "closely

3 Sardinha was issued after the parties submitted briefs in this
appeal. Because the parties relied on Akau, which was abrogated by Sardinha,
this court ordered the parties to file supplemental briefs addressing and
applying Sardinha's clarification of the "single-episode test."

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related" circumstances. Id. at 314, 526 P.3d at 291. Hence,

the fact that one charged offense constituted "probable cause"

for another charged offense does not necessarily mean that the

two charged offenses are closely related in circumstances. And,

conversely, the fact that one charged offense does not

constitute "probable cause" for another does not necessarily

mean that the two charged offenses are not closely related in

circumstances.

Here, it appears that the circuit court focused

primarily on "whether the facts and circumstances of the first

discovered offense provided . . . sufficient probable cause to

suspect that [Hiapo] had committed or would commit the second

discovered criminal offense." That is no longer the test.

Nevertheless, applying the standard set forth in Sardinha, we

hold that the circuit court did not abuse its discretion by

dismissing Count 1 of the Indictment. We further hold that the

circuit court did abuse its discretion by dismissing Counts 2

through 5 of the Indictment.

A. Count 1.

Count 1 charged that Hiapo threatened to cause bodily

injury to the CW using a rifle "with the intent to terrorize, or

in reckless disregard of the risk of terrorizing[,] . . .

thereby committing the offense of Terroristic Threatening in the

First Degree."

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The record reflects a strong factual correlation

between Hiapo's alleged terroristic threatening and his physical

abuse of the CW. The CW was the target of both the "physical

abuse," as well as the alleged "threat[], by word or conduct, to

cause bodily injury"; as such, the State would need to adduce

closely related evidence to prove the two charges.

The State's Abuse Complaint relates to allegations

that on the evening of December 17, while the CW was getting

ready to leave their home to go to work, Hiapo threw a set of

keys at the CW which injured the CW's face. When the CW

returned home from work the next morning, Hiapo continued the

abuse by "forcibly grabb[ing the CW] by the arms and shov[ing]

her to the side." Hiapo then left the home.

At the sentencing hearing, the State explained that

"what happened afterwards constitutes the [felony] case that's

pending in the [circuit court] courtroom." It appears that

Hiapo left home to cool off, after which he drove back home and

found that the CW and their children were not there. Hiapo then

drove to the CW's grandmother's home in Paia because he thought

the CW had gone there with the children. Hiapo allegedly called

the CW, threatened her safety, and told the CW that he was

coming for her. The terroristic threatening count, which

charges that Hiapo "threaten[ed], by word or conduct, to cause

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bodily injury" to the CW, appears to be premised on that phone

call.

As outlined above, the CW would be a key witness for

the State with regard to the abuse and terroristic threatening

charges. The CW's testimony would be important in establishing

both Hiapo's physical abuse and the alleged threat of bodily

injury towards the CW. Given the cross-relationship between

Hiapo's abuse of and alleged terroristic threatening towards the

CW, the State would need to adduce closely related evidence to

prove both charges.

Moreover, the physical abuse, and the events that

occurred at Hiapo's home on the evening of December 17 and the

morning of December 18, provide context for the alleged

terroristic threatening that occurred on the afternoon of

December 18.

In addition, these offenses were closely related in

time and place. The abuse occurred at Hiapo and the CW's shared

home on the evening of December 17 and morning of December 18,

and the alleged terroristic threatening occurred in the

afternoon of December 18 when Hiapo allegedly called the CW

while the CW was at her grandmother's house, which was within

driving distance of their shared home.

Under these circumstances, the physical abuse of the

CW and the alleged terroristic threatening towards the CW were

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all part of the escalating violence directed at the CW by Hiapo.

We therefore hold that Hiapo's physical abuse and alleged

terroristic threatening were multiple offenses arising from a

single episode, and the State was required to bring these

charges in the same proceeding.

B. Counts 2 through 5.

Counts 2 through 5 of the Indictment charged Hiapo

with various offenses involving the carrying or possession of a

firearm and ammunition, and the discharge of a loaded firearm at

the CW's grandmother's home in Paia on December 18. Count 2

alleges that Hiapo recklessly endangered another person through

his discharge of a firearm. Counts 3 through 5 allege that

Hiapo intentionally or knowingly carried a loaded firearm and

ammunition, in violation of the State's place to keep laws, and

that he carried or possessed a loaded firearm on a public

highway.

In order to prove Counts 2 through 5, the State would

need to introduce evidence establishing Hiapo's possession and

firing of a rifle at the grandmother's home in Paia through, for

example, the testimony of those persons at the home who

witnessed the incident. 4 It appears that the CW, although at the

4 Pursuant to the transcript of the grand jury proceeding, which
was made part of the record, a witness testified to observing Hiapo arrive at
the CW's grandmother's home in his truck on December 18, stop on the road,
jump out of the truck, and grab "[a] hunting rifle" from the truck. The
(continued . . .)

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grandmother's home in Paia at the time of the alleged incident,

did not witness Hiapo discharge the rifle.

We agree with the State that Counts 2 through 5 of the

Indictment, and the charges of "physical abuse" set forth in the

family court Abuse Complaint, involved "different witnesses,

different harm, different methods, and different weapons" –-

i.e., different circumstances. The statutory elements of

reckless endangering, place to keep loaded firearms and

ammunition, and carrying or possessing a loaded firearm on a

public highway do not overlap with those of physical abuse of a

family or household member. It also appears that the State

would be able to introduce non-overlapping evidence to prove

Counts 2 through 5, and that the prosecution of Counts 2 through

5 would not require the State to introduce evidence establishing

the physical abuse.

We therefore hold that the circuit court abused its

discretion in dismissing Counts 2 through 5 of the Indictment,

as those charges were not "legally connected" nor did they

"share substantial factual overlap" with the charges in the

Abuse Complaint. Counts 2 through 5, and the charges in the

4(. . .continued)

witness testified that he "approach[ed Hiapo] . . . when [Hiapo] had the
gun," that the witness grabbed the gun while Hiapo was holding it, and that
Hiapo fired the gun three times while they both held onto it.

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Abuse Complaint, did not circumstantially arise from a single

episode. 5 See Sardinha, 152 Hawaiʻi at 312, 526 P.3d at 289.

As explained above, we hold that the circuit court did

not abuse its discretion in dismissing Count 1 of the

Indictment, but that it did abuse its discretion in dismissing

Counts 2 through 5. On this basis, we affirm the circuit

court's dismissal of Count 1, and vacate the circuit court's

dismissal of Counts 2 through 5.

Although we are unaware of a prior appellate decision

that, in the context of HRS § 701-109(2), affirms the circuit

court's dismissal of one count in a charging document while

vacating the dismissal of the remaining counts, it is

appropriate for us to do so under the facts and circumstances of

this case.

III. Conclusion

We affirm the circuit court's Dismissal Order as to

Count 1 of the Indictment. We vacate the circuit court's

Dismissal Order as to Counts 2 through 5 of the Indictment, and

we further vacate the circuit court's FOFs and COLs related to

5 Given our determination that Counts 2 through 5 of the Indictment
do not involve closely related "circumstances," we need not consider whether
these charges are closely related in "time" and "place."

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Counts 2 through 5. We remand for further proceedings

consistent with this opinion.

On the briefs: /s/ Katherine G. Leonard
Presiding Judge
Renee Ishikawa Delizo,
Deputy Prosecuting Attorney /s/ Sonja M.P. McCullen
County of Maui, Associate Judge
for Plaintiff-Appellant.
/s/ Kimberly T. Guidry
Phyllis J. Hironaka, Associate Judge
Deputy Public Defender,
for Defendant-Appellee.

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Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
20-OCT-2025
08:06 AM
Dkt. 114 OP

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI‘I

---o0o---

STATE OF HAWAI‘I, Plaintiff-Appellant,
v.
KAIIMI SKIP HIAPO, Defendant-Appellee

NO. CAAP-XX-XXXXXXX

APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT
(CASE NO. 2CPC-XX-XXXXXXX)

OCTOBER 20, 2025

LEONARD, PRESIDING JUDGE, MCCULLEN AND GUIDRY, JJ.

OPINION OF THE COURT BY GUIDRY, J.

Plaintiff-Appellant State of Hawaiʻi (State) appeals

from the "Findings of Fact [(FOFs)], Conclusions of Law

[(COLs)], and Order Granting the Defendant[-Appellee Kaiimi Skip

Hiapo's (Hiapo)] Motion to Dismiss for Violation of [Hawaii

Revised Statutes (HRS)] § 701-109(2)[ (2014)]" (Dismissal

Order), filed on April 27, 2022 by the Circuit Court of the

Second Circuit (circuit court). 1

1 The Honorable Kelsey T. Kawano presided.
FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER

This appeal arises out of the State's separate

prosecutions of Hiapo by a five-count felony indictment (the

Indictment) in the circuit court, and by a two-count complaint

(the Abuse Complaint) in the Family Court of the Second Circuit

(family court) case no. 2FFC-XX-XXXXXXX. 2 The Indictment charged

Hiapo with terroristic threatening and various firearms

offenses. The Abuse Complaint charged Hiapo with physical abuse

of a family or household member.

At issue is whether the circuit court erred in

concluding that, pursuant to HRS § 701-109(2), the alleged

offenses charged in the Indictment and the Abuse Complaint arose

"from a single episode," and in dismissing the Indictment in its

entirety on that basis. We hold that Hiapo's alleged

terroristic threatening and physical abuse were part of the same

episode of escalating domestic violence directed towards the

complaining witness (CW), such that the circuit court did not

abuse its discretion in dismissing Count 1 of the Indictment.

However, Hiapo's alleged carrying or possession of a firearm and

ammunition, and discharge of a loaded firearm, were not "legally

connected" and did not "share substantial factual overlap" with

the physical abuse. Hiapo's alleged firearms violations and

2 Pursuant to Hawaii Rules of Evidence Rule 201(c), this court
takes judicial notice of the proceedings in family court case no. 2FFC-21-
0000086. Judicial notice is appropriate because the proceedings are a
significant component of the present inquiry.

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physical abuse therefore did not arise out of the same episode,

and the circuit court abused its discretion in dismissing Counts

2 through 5 of the Indictment. Accordingly, we affirm in part

and vacate in part the Dismissal Order.

I. Background and Proceedings Below

On February 1, 2021, the State filed the Indictment,

which charged Hiapo with the following five counts:

COUNT ONE: . . .
That on or about the 18th day of December, 2020, in
the County of Maui, State of Hawaii, [Hiapo], with the
intent to terrorize, or in reckless disregard of the risk
of terrorizing [the CW], did threaten, by word or conduct,
to cause bodily injury to [the CW], with the use of a
dangerous instrument or a simulated firearm, to wit, a .22
caliber rifle, thereby committing the offense of
Terroristic Threatening in the First Degree in violation of
Section 707-716(1)(e) of the [HRS].

. . . .

COUNT TWO: . . .
That on or about the 18th day of December, 2020, in
the County of Maui, State of Hawaii, [Hiapo] did
intentionally fire a firearm in a manner which recklessly
placed another person in danger of death or serious bodily
injury, thereby committing the offense of Reckless
Endangering in the First Degree in violation of Section
707-713(1) of the [HRS].

. . . .

COUNT THREE: . . .
That on or about the 18th day of December, 2020, in
the County of Maui, State of Hawaii, [Hiapo] did
intentionally or knowingly carry or possess an object, with
intent, knowledge, or reckless disregard of the substantial
and unjustifiable risk that the object was a loaded firearm
other than a pistol or revolver, to wit, a loaded .22
caliber rifle, and did intentionally, knowingly, or
recklessly fail to confine the loaded firearm to his place
of business, residence, or sojourn, other than carrying an
unloaded firearm in an enclosed container from the place of
purchase to his place of business, residence, or sojourn or
between those places and a place of repair, a target range,
a licensed dealer's place of business, an organized,
scheduled firearms show or exhibit, a place of formal

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hunter or firearm use training or instruction, or a police
station, thereby committing the offense of Place to Keep
Loaded Firearms Other than Pistols and Revolvers in
violation of Section 134-23(a) of the [HRS].

COUNT FOUR: . . .
That on or about the 18th day of December, 2020, in
the County of Maui, State of Hawaii, [Hiapo], while on a
public highway, with knowledge or reckless disregard of the
substantial and unjustifiable risk that he was on a public
highway, did intentionally or knowingly carry on his
person, or have in his possession, or did carry in a
vehicle, an object, with intent, knowledge, or reckless
disregard of the substantial and unjustifiable risk that
the object was a firearm loaded with ammunition, to wit, a
loaded .22 caliber rifle, thereby committing the offense of
Carrying or Possessing a Loaded Firearm on a Public Highway
in violation of Section 134-26(a) of the [HRS].

COUNT FIVE: . . .
That on or about the 18th day of December, 2020, in
the County of Maui, State of Hawaii, [Hiapo] did
intentionally or knowingly carry or possess an object, with
intent, knowledge, or reckless disregard of the substantial
and unjustifiable risk that the object was ammunition, and
did intentionally, knowingly, or recklessly fail to confine
the ammunition to his place of business, residence, or
sojourn, other than carrying the ammunition in an enclosed
container from the place of purchase to his place of
business, residence, or sojourn or between those places and
a place of repair, a target range, a licensed dealer's
place of business, an organized, scheduled firearms show or
exhibit, a place of formal hunter or firearm use training
or instruction, or a police station, thereby committing the
offense of Place to Keep Ammunition in violation of Section
134-27(a) of the [HRS].

(Emphasis added.)

On March 4, 2021, the State separately filed the two-

count Abuse Complaint in family court. The Abuse Complaint, as

amended in May 2021, charged Hiapo with:

COUNT ONE: . . .
That on or about the 17th day of December, 2020, in
the County of Maui, State of Hawaii, [Hiapo], did
intentionally, knowingly or recklessly engage in and cause
physical abuse of a family or household member, to wit,
[the CW], thereby committing the offense of Abuse of Family
or Household Member in violation of Sections 709-906(1)
and/or (5)(a) of the [HRS].

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COUNT TWO: . . .
That on or about the 18th day of December, 2020, in
the County of Maui, State of Hawaii, [Hiapo], did
intentionally, knowingly or recklessly engage in and cause
physical abuse of a family or household member, to wit,
[the CW], thereby committing the offense of Abuse of Family
or Household Member in violation of Sections 709-906(1)
and/or (5)(a) of the [HRS].

(Emphasis added.)

Hiapo's circuit court felony prosecution and family

court abuse prosecution proceeded separately, though the record

reflects that the State and defense discussed the possibility of

a "global resolution" that would address the charges in both

cases. At defense counsel's request, the family court continued

the pretrial conference multiple times, to give the parties

additional time to discuss the possibility of a plea agreement.

Ultimately, the State and Hiapo were unable to reach a

plea agreement. In March 2022, Hiapo requested to enter a

change in plea in the family court case. The family court

accepted Hiapo's new plea of no contest to the two counts

charged by the Abuse Complaint, and Hiapo was sentenced to two

years of probation.

In April 2022, shortly after pleading no contest to

the family court abuse charges, Hiapo moved in circuit court to

dismiss the Indictment. Hiapo contended that the State violated

HRS § 701-109(2) by charging him in two separate prosecutions,

2FFC-XX-XXXXXXX and 2CPC-XX-XXXXXXX, for offenses that arose out

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of the "same domestic abuse episode." The circuit court granted

Hiapo's motion to dismiss, explaining, in relevant part,

The applicable legal standard is the same episode
test. . . .

. . . .

[M]oving on to the legal test of same episode.
Compulsory joinder, this rule requires dismissal of a
subsequent charge under the same episode analysis, which
means that all offenses that grow out of a single criminal
act[,] occurrence, episode[,] or transaction are considered
the same offense for purposes of determining whether a
subsequent prosecution is barred.

And under that test[,] once an individual has been
prosecuted for one offense, that individual [cannot] be
later prosecuted for another offense committed in the same
episode, even if the offenses were committed by distinct
acts. That's the holding in [State v. Carroll, 63 Haw.
345, 627 P.2d 776 (1981)], and [State v. Lessary, 75 Haw.
446, 865 P.2d 150 (1994)].

So under [State v. Akau, 118 Hawaiʻi 44, 185 P.3d 229
(2008),] the subsequent prosecution is barred where the
three requirements for compulsory joinder are met.

First, this was a distinct act, but was during the
same episode. Two, the prosecutor knew of the subsequent
charge at the time of the prior charge was brought [sic].
And three, the same [c]ourt has jurisdiction over both
prior and subsequent charges.

In this case all three of those requirements have
been met.

With regard to looking at analysis of the
circumstances, there's been a lot of argument about that
also. And under [Akau,] the Hawai[ʻ]i Supreme Court has
adopted a probable cause analysis for determining the
circumstances factor of the same episode test.

And the [c]ourt states in [Akau] that when examining
the circumstances of offenses alleged to be part of the
same episode, the [c]ourt is focused primarily on whether
the facts and circumstances of the first discovered offense
provided . . . sufficient probable cause to suspect that
[Hiapo] had committed or would commit the second discovered
criminal offense. And that absolutely is established in
this case.

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The circuit court entered FOFs and COLs, the following

of which are challenged by the State on appeal,

[FOF] 4. Exhibit A provides the following:

a. On December 17, 2020 at about 7:00 p.m.,
[Hiapo] and the [CW], were fighting within
their Pukalani residence. During the
fight, the CW reported that [Hiapo] threw
a set of keys that hit her on the
forehead.

b. The next morning, December 18, 2020 at
about 7:30 - 10:00 a.m., their fight
continued. The CW reports that [Hiapo]
forcibly grabbed her by the arms, shoved
her to the side, and then left their
residence.

c. The State subsequently charged [Hiapo]
with two counts of Abuse of a Family or
Household Member based upon the events of
December 17 and 18, 2020. These two
criminal offenses were charged together in
2FFC-21-086.

d. On December 18, 2020 at approximately
12:23 p.m., the CW received a call from
[Hiapo] where she reported [Hiapo] made
threats towards her and mentioned a gun.

e. After 1:00 p.m., [Hiapo] went to the CW's
current location at her grandmother's
house. Upon arriving, [Hiapo] screamed
and demanded to see the CW, he made
threats regarding her, and then discharged
a rifle once into the air. A witness
reported that he grabbed the muzzle of
[Hiapo's] rifle, a struggle ensued, and
[Hiapo] discharged the rifle twice more.

f. At approximately 1:50 p.m., MPD officers
arrived on scene. At approximately 2:15
p.m., MPD Officer Corrine Chang
interviewed the CW. During the interview,
the CW reported the abuse on the evening
of December 17, 2020, the abuse earlier in
the day on December 18, 2020, the threats
made by [Hiapo] over the phone, and
[Hiapo's] conduct prior to MPD arriving on
scene.

g. At approximately 3:02 p.m., MPD Detective
Mark Hada interviewed [Hiapo] at the

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Wailuku Police Station. [Hiapo] discussed
the entire criminal episode from December
17, 2020 through the morning and afternoon
of December 18, 2020.

h. On or about January 4, 2021, Detective
Hada produced a report that was forwarded
to the prosecuting attorney's office for
review. In his report, Detective Hada,
summarized the entire criminal episode,
and suggested criminal charges that
included all the charges in this case, as
well as those ultimately charged
separately under 2FFC-21-086.

. . . .

[COL] 10. Additionally, the key witnesses in both cases are
largely the same, MPD investigated the entire
criminal episode at one time, and Detective Hada
identified probable cause and suggested all the
criminal charges in his report.

[COL] 11. Weighing the three factors of the Carroll test,
the [circuit court] concludes the criminal charges
in both cases arises from a single episode, and
therefore must be joined under HRS § 701-109(2).

. . . .

[COL] 13. The State charged these cases separately, did not
move to join the cases, and has therefore violated
HRS § 701-109(2).

[COL] 14. Because a judgment has already been entered in
2FFC-21-086, subsequent prosecution of this matter
is barred by HRS § 701-109(2).

This appeal followed.

II. Discussion

On appeal, the State contends that the circuit court

erred by dismissing the Indictment. We review the circuit

court's dismissal of the Indictment for abuse of discretion.

State v. Borge, 152 Hawaiʻi 458, 464, 526 P.3d 435, 441 (2023).

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Pursuant to HRS § 701-109(2),

[A] defendant shall not be subject to separate trials for
multiple offenses based on the same conduct or arising from
the same episode, if such offenses are known to the
appropriate prosecuting officer at the time of the
commencement of the first trial and are within the
jurisdiction of a single court.

(Emphasis added.)

As the Hawaiʻi Supreme Court has explained,

[U]nder [HRS] § 701-111(1)(b)[ (2014)], the State is
prohibited from subsequently prosecuting a defendant for
any offense which should have been joined in a prior trial
under § 701-109(2).

Section 701-109(2) reflects a policy that all charges that
arise under one episode be consolidated in one trial so
that a defendant need not face the expense and
uncertainties of multiple trials based on essentially the
same episode. Section 701-109(2) is designed to prevent
the State from harassing a defendant with successive
prosecutions where the State is dissatisfied with the
punishment previously ordered or where the State has failed
to convict the defendant.

State v. Servantes, 72 Haw. 35, 38, 804 P.2d 1347, 1348 (1991)

(citations omitted).

It is undisputed that the offenses charged in the

Indictment and Abuse Complaint were known to the State "at the

time of the commencement of the first trial," and that the

offenses were within the jurisdiction of the circuit court. See

HRS § 701-109(2). At issue, therefore, is whether the offenses

charged by the Indictment and Abuse Complaint were "so closely

related in time, place[,] and circumstances that a complete

account of one charge cannot be related without referring to

details of the other charge," such that they should have been

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tried in the same proceeding. See Carroll, 63 Haw. at 351, 627

P.2d at 780.

In State v. Sardinha, which was decided while this

case was pending on appeal, 3 the Hawaiʻi Supreme Court explained

the "circumstances element" of the "single-episode test" as

follows,

[T]he fact that there may be some factual overlap between
multiple charges does not require joinder. Rather, the two
charges must be cross-related such that a complete account
of one charge necessarily includes details of the other
charge.

. . . .

Considering our precedents, this court has declined to hold
that multiple offenses arise from a single episode simply
because the offenses share some common facts. . . .

Our precedents make clear, instead, that multiple offenses
arise from the same episode when the offenses are legally
connected and/or share substantial factual overlap. . . .

. . . .

[T]he presence or absence of probable cause is not
dispositive in determining whether multiple offenses are so
closely related in circumstances that a complete account of
one charge cannot be related without referring to details
of the other charge. Nevertheless, the presence of
probable cause may be relevant where, for instance, there
are common elements between the statutory requirements of
multiple offenses.

152 Hawaiʻi 304, 309-14, 526 P.3d 281, 286-91 (2023) (emphasis

added) (cleaned up).

Sardinha clarified that probable cause was no longer

determinative of whether multiple offenses present "closely

3 Sardinha was issued after the parties submitted briefs in this
appeal. Because the parties relied on Akau, which was abrogated by Sardinha,
this court ordered the parties to file supplemental briefs addressing and
applying Sardinha's clarification of the "single-episode test."

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related" circumstances. Id. at 314, 526 P.3d at 291. Hence,

the fact that one charged offense constituted "probable cause"

for another charged offense does not necessarily mean that the

two charged offenses are closely related in circumstances. And,

conversely, the fact that one charged offense does not

constitute "probable cause" for another does not necessarily

mean that the two charged offenses are not closely related in

circumstances.

Here, it appears that the circuit court focused

primarily on "whether the facts and circumstances of the first

discovered offense provided . . . sufficient probable cause to

suspect that [Hiapo] had committed or would commit the second

discovered criminal offense." That is no longer the test.

Nevertheless, applying the standard set forth in Sardinha, we

hold that the circuit court did not abuse its discretion by

dismissing Count 1 of the Indictment. We further hold that the

circuit court did abuse its discretion by dismissing Counts 2

through 5 of the Indictment.

A. Count 1.

Count 1 charged that Hiapo threatened to cause bodily

injury to the CW using a rifle "with the intent to terrorize, or

in reckless disregard of the risk of terrorizing[,] . . .

thereby committing the offense of Terroristic Threatening in the

First Degree."

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The record reflects a strong factual correlation

between Hiapo's alleged terroristic threatening and his physical

abuse of the CW. The CW was the target of both the "physical

abuse," as well as the alleged "threat[], by word or conduct, to

cause bodily injury"; as such, the State would need to adduce

closely related evidence to prove the two charges.

The State's Abuse Complaint relates to allegations

that on the evening of December 17, while the CW was getting

ready to leave their home to go to work, Hiapo threw a set of

keys at the CW which injured the CW's face. When the CW

returned home from work the next morning, Hiapo continued the

abuse by "forcibly grabb[ing the CW] by the arms and shov[ing]

her to the side." Hiapo then left the home.

At the sentencing hearing, the State explained that

"what happened afterwards constitutes the [felony] case that's

pending in the [circuit court] courtroom." It appears that

Hiapo left home to cool off, after which he drove back home and

found that the CW and their children were not there. Hiapo then

drove to the CW's grandmother's home in Paia because he thought

the CW had gone there with the children. Hiapo allegedly called

the CW, threatened her safety, and told the CW that he was

coming for her. The terroristic threatening count, which

charges that Hiapo "threaten[ed], by word or conduct, to cause

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bodily injury" to the CW, appears to be premised on that phone

call.

As outlined above, the CW would be a key witness for

the State with regard to the abuse and terroristic threatening

charges. The CW's testimony would be important in establishing

both Hiapo's physical abuse and the alleged threat of bodily

injury towards the CW. Given the cross-relationship between

Hiapo's abuse of and alleged terroristic threatening towards the

CW, the State would need to adduce closely related evidence to

prove both charges.

Moreover, the physical abuse, and the events that

occurred at Hiapo's home on the evening of December 17 and the

morning of December 18, provide context for the alleged

terroristic threatening that occurred on the afternoon of

December 18.

In addition, these offenses were closely related in

time and place. The abuse occurred at Hiapo and the CW's shared

home on the evening of December 17 and morning of December 18,

and the alleged terroristic threatening occurred in the

afternoon of December 18 when Hiapo allegedly called the CW

while the CW was at her grandmother's house, which was within

driving distance of their shared home.

Under these circumstances, the physical abuse of the

CW and the alleged terroristic threatening towards the CW were

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all part of the escalating violence directed at the CW by Hiapo.

We therefore hold that Hiapo's physical abuse and alleged

terroristic threatening were multiple offenses arising from a

single episode, and the State was required to bring these

charges in the same proceeding.

B. Counts 2 through 5.

Counts 2 through 5 of the Indictment charged Hiapo

with various offenses involving the carrying or possession of a

firearm and ammunition, and the discharge of a loaded firearm at

the CW's grandmother's home in Paia on December 18. Count 2

alleges that Hiapo recklessly endangered another person through

his discharge of a firearm. Counts 3 through 5 allege that

Hiapo intentionally or knowingly carried a loaded firearm and

ammunition, in violation of the State's place to keep laws, and

that he carried or possessed a loaded firearm on a public

highway.

In order to prove Counts 2 through 5, the State would

need to introduce evidence establishing Hiapo's possession and

firing of a rifle at the grandmother's home in Paia through, for

example, the testimony of those persons at the home who

witnessed the incident. 4 It appears that the CW, although at the

4 Pursuant to the transcript of the grand jury proceeding, which
was made part of the record, a witness testified to observing Hiapo arrive at
the CW's grandmother's home in his truck on December 18, stop on the road,
jump out of the truck, and grab "[a] hunting rifle" from the truck. The
(continued . . .)

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grandmother's home in Paia at the time of the alleged incident,

did not witness Hiapo discharge the rifle.

We agree with the State that Counts 2 through 5 of the

Indictment, and the charges of "physical abuse" set forth in the

family court Abuse Complaint, involved "different witnesses,

different harm, different methods, and different weapons" –-

i.e., different circumstances. The statutory elements of

reckless endangering, place to keep loaded firearms and

ammunition, and carrying or possessing a loaded firearm on a

public highway do not overlap with those of physical abuse of a

family or household member. It also appears that the State

would be able to introduce non-overlapping evidence to prove

Counts 2 through 5, and that the prosecution of Counts 2 through

5 would not require the State to introduce evidence establishing

the physical abuse.

We therefore hold that the circuit court abused its

discretion in dismissing Counts 2 through 5 of the Indictment,

as those charges were not "legally connected" nor did they

"share substantial factual overlap" with the charges in the

Abuse Complaint. Counts 2 through 5, and the charges in the

4(. . .continued)

witness testified that he "approach[ed Hiapo] . . . when [Hiapo] had the
gun," that the witness grabbed the gun while Hiapo was holding it, and that
Hiapo fired the gun three times while they both held onto it.

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Abuse Complaint, did not circumstantially arise from a single

episode. 5 See Sardinha, 152 Hawaiʻi at 312, 526 P.3d at 289.

As explained above, we hold that the circuit court did

not abuse its discretion in dismissing Count 1 of the

Indictment, but that it did abuse its discretion in dismissing

Counts 2 through 5. On this basis, we affirm the circuit

court's dismissal of Count 1, and vacate the circuit court's

dismissal of Counts 2 through 5.

Although we are unaware of a prior appellate decision

that, in the context of HRS § 701-109(2), affirms the circuit

court's dismissal of one count in a charging document while

vacating the dismissal of the remaining counts, it is

appropriate for us to do so under the facts and circumstances of

this case.

III. Conclusion

We affirm the circuit court's Dismissal Order as to

Count 1 of the Indictment. We vacate the circuit court's

Dismissal Order as to Counts 2 through 5 of the Indictment, and

we further vacate the circuit court's FOFs and COLs related to

5 Given our determination that Counts 2 through 5 of the Indictment
do not involve closely related "circumstances," we need not consider whether
these charges are closely related in "time" and "place."

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Counts 2 through 5. We remand for further proceedings

consistent with this opinion.

On the briefs: /s/ Katherine G. Leonard
Presiding Judge
Renee Ishikawa Delizo,
Deputy Prosecuting Attorney /s/ Sonja M.P. McCullen
County of Maui, Associate Judge
for Plaintiff-Appellant.
/s/ Kimberly T. Guidry
Phyllis J. Hironaka, Associate Judge
Deputy Public Defender,
for Defendant-Appellee.

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