State v. Nagamine.

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

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
26-FEB-2025
06:23 AM
Dkt. 51 OP

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI‘I

---o0o---

STATE OF HAWAI‘I, Plaintiff-Appellee,
v.
BRYSON JAY KELIIKU POLOLEI NAGAMINE, Defendant-Appellant

NO. CAAP-XX-XXXXXXX

APPEAL FROM THE CIRCUIT COURT OF THE FIFTH CIRCUIT
(CASE NO. 5CPC-XX-XXXXXXX)

FEBRUARY 26, 2025

WADSWORTH, PRESIDING JUDGE, NAKASONE AND MCCULLEN, JJ.
FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER

OPINION OF THE COURT BY NAKASONE, J.

The sole challenge in this appeal is to the imposition
of an "internet crimes against children fee" (ICAC fee) under
Hawaii Revised Statutes (HRS) § 846F-3 1 for the conviction of an
offense that is not included within the definition of
"[i]nternet crimes against children" under HRS § 846F-2. 2

1 HRS § 846F-3 (2014 & 2016 Supp.), entitled "Internet crimes
against children fee," provides:

(a) The court shall order every defendant to pay an
internet crimes against children fee of up to $100 for each
felony or misdemeanor conviction; provided that no fee shall be
ordered when the court determines that the defendant is unable to
pay the fee.

(b) When a defendant is also ordered to pay a fine, make
restitution, pay a crime victim compensation fee, or pay other
fees in addition to the internet crimes against children fee,
payments by the defendant shall be made in the order of priority
established under section 706-651.

(c) The defendant shall pay the internet crimes against
children fee to the clerk of the court. The fee shall be
deposited with the director of finance who shall transmit the fee
to the internet crimes against children special fund pursuant
to section 846F-4.

(Emphasis added.)

2 HRS § 846F-2 (2014), entitled "Definitions," defines "Internet
crimes against children" as certain specified offenses (internet crimes
against children offenses or ICAC offenses), as follows:

As used in this chapter, unless the context otherwise
requires:

"Internet crimes against children" means promoting
child abuse in the first degree under section 707-750,
promoting child abuse in the second degree under section
707-751, promoting child abuse in the third degree under
section 707-752, electronic enticement of a child in the
first degree under section 707-756, electronic enticement
of a child in the second degree under section 707-757,
indecent electronic display to a child under section
707-759, or promoting pornography for minors under section
712-1215.

(Emphases added.)
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Defendant-Appellant Bryson Jay Keliiku Pololei
Nagamine (Nagamine) appeals from the August 11, 2021 Judgment of
Conviction and Sentence, entered by the Circuit Court of the
Fifth Circuit (Circuit Court), 3 and only challenges the
imposition of the ICAC fee.
We hold that the ICAC fee applies only to ICAC
offenses, and should not have been imposed for the Habitually
Operating a Vehicle Under the Influence of an Intoxicant
(Habitual OVUII) conviction in this case. Accordingly, we
reverse the imposition of the $100.00 ICAC fee.
I. BACKGROUND
On January 7, 2021, Nagamine was charged with Habitual
OVUII, in violation of HRS § 291E-61.5(a)(1)(2)(A); operating a
vehicle after his license was suspended or revoked for OVUII, in
violation of HRS § 291E-62(a)(1) and/or (2); and Inattention to
Driving, in violation of HRS § 291-12. On May 19, 2021,
Nagamine pled no contest to Habitual OVUII, and the remaining
counts were dismissed with prejudice.
At the August 11, 2021 sentencing hearing, the Circuit
Court sentenced Nagamine to five years of probation with six
months in jail, and ordered Nagamine to pay a $2,000.00 fine and
other fees, including the ICAC fee at issue in this appeal.
Nagamine objected to the $100.00 ICAC fee based on HRS
§ 37—52.3. 4 Nagamine timely appealed.

3 The Honorable Kathleen N.A. Watanabe presided.

4 HRS § 37—52.3 (2009 & 2016 Supp.), entitled "Criteria for the
establishment and continuance of special funds," (special funds statute) sets
forth criteria for special funds and specifies that the program receiving the
special funds must have a "clear link" to the revenue source, as follows:

Special funds shall be established only pursuant to an act
of the legislature. The legislature, in establishing or
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II. STANDARDS OF REVIEW
The interpretation of a statute is a question of law
reviewable de novo. State v. Borge, 152 Hawai‘i 458, 464,
526 P.3d 435, 441 (2023). Interpretation of a statute is
governed 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.
When there is ambiguity in a statute, "the meaning of the
ambiguous words may be sought by examining the context,
with which the ambiguous words, phrases, and sentences may
be compared, in order to ascertain their true meaning."
Moreover, the courts may resort to extrinsic aids in
determining legislative intent, such as legislative
history, or the reason and spirit of the law.

Barker v. Young, 153 Hawai‘i 144, 148, 528 P.3d 217, 221 (2023)
(citation omitted).

reviewing a special fund to determine whether it should be
continued, shall ensure that the special fund:

. . . .

(2) Reflects a clear nexus between the benefits
sought and charges made upon the program users or
beneficiaries or a clear link between the program and the
sources of revenue, as opposed to serving primarily as a
means to provide the program or users with an automatic
means of support that is removed from the normal budget and
appropriation process[.]

(Emphases added.)
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An alleged sentencing error is reviewed for abuse of
discretion. State v. Barnes, 145 Hawai‘i 213, 217, 450 P.3d 743,
747 (2019).

III. DISCUSSION
On appeal, Nagamine argues that: (1) the ICAC fee
under HRS § 846F-3 "may only be imposed where a convicted
defendant has committed one of the Internet Crimes Against
Children defined in HRS § 846[F]-2"; 5 and (2) HRS § 37-52.3
prohibits the imposition of the ICAC fee for an offense such as
Habitual OVUII with no "clear link" between the ICAC special
fund and the ICAC fee.
A. The ICAC fee applies to every defendant convicted of
an ICAC offense defined under HRS § 846F-2, not to
all defendants convicted of any criminal offense.
In response to Nagamine's contention that the ICAC fee
"may only be imposed" where a convicted defendant has committed
an ICAC offense defined in HRS § 846F-2, the State argues "the
plain language of HRS §[]846F-3(a) mandates imposition of the
ICAC fee for every misdemeanor and felony offense that a
defendant is convicted of (except if the defendant does not have
the ability to pay)"; and "where a statute limits imposition of
a fee to specific types of convictions, the statutes clearly
indicate the types of convictions to which the fee applies."
The State asserts that because "HRS §[]846F-3(a) specifies that
the ICAC fee is imposed 'for each felony and misdemeanor
conviction,'" this "indicates that the fee applies to all such
convictions, rather than solely convictions for ICAC offenses."

5 The parties were permitted to submit an optional supplemental
brief addressing "whether or how the definition of an '[i]nternet crimes
against children' . . . offense set forth in HRS § 846F-2 applies to the
imposition of an ICAC fee under HRS § 846F-3." Both parties did so.

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The State claims that the ICAC definition in HRS § 846F-2
"limits the kinds of training, investigations, prosecutions, and
initiatives that ICAC funds may be used for; it does not limit
the types of defendants upon whom the ICAC fee must be imposed."
As explained below, we conclude that the ICAC fee
applies only to ICAC offenses. This conclusion is based on the
plain language of HRS Chapter 846F, its legislative history, and
the requirements that the ICAC fees and ICAC special fund must
comply with in HRS § 37-52.3.

1. The plain language defining an ICAC offense
under HRS § 846F-2 limits the imposition of the
HRS § 846F-3 ICAC fee to the enumerated ICAC
offenses.

HRS Chapter 846F, entitled "Internet Crimes Against
Children," created the ICAC fee in HRS § 846F-3 and established
the ICAC special fund to assist in the investigation and
prosecution of internet crimes against children. The plain
language of HRS § 846F-2 states that the term "[i]nternet crimes
against children" "[a]s used in this chapter," means the
offenses of "promoting child abuse," "electronic enticement of a
child," "indecent electronic display to a child," and "promoting
pornography for minors." See Borge, 152 Hawai‘i at 464, 526 P.3d
at 441 ("[W]here the statutory language is plain and
unambiguous, our sole duty is to give effect to its plain and
obvious meaning." (citation omitted)).
HRS § 846F-3(a) states:
The court shall order every defendant to pay an internet
crimes against children fee of up to $100 for each felony
or misdemeanor conviction; provided that no fee shall be
ordered when the court determines that the defendant is
unable to pay the fee.

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(Emphasis added.) The ICAC definition under HRS § 846F-2
applies wherever the ICAC term is "used in this chapter[.]"
HRS § 846F-3 requires the imposition of the "internet crimes
against children fee" on "every defendant" for "each felony or
misdemeanor conviction[.]" (Emphasis added.) Notably, HRS
§ 846F-3 applies the fee only to felonies and misdemeanors and
not to all grades of criminal offenses, which would ordinarily
include petty misdemeanors. See HRS § 701-107(1) (2014)
("Crimes are of three grades: felonies, misdemeanors, and petty
misdemeanors"); cf. HRS §§ 706-605(6) and 351-62.6 (imposing a
crime victim compensation fee "upon every person convicted of a
criminal offense" and "upon every defendant who has been
convicted or who has entered a plea" in differing amounts for
felonies, misdemeanors, and petty misdemeanors) (emphasis
added). The limitation of the ICAC fee specifically to a
"felony or misdemeanor" conviction is logically consistent with
the grades of the ICAC offenses set forth in HRS § 846F-2, which
include only felonies and misdemeanors, and not petty
misdemeanors. 6 See Moranz v. Harbor Mall, LLC, 150 Hawai‘i 387,
398, 502 P.3d 488, 499 (2022) (statutory interpretation that is
"inconsistent, contradictory, and illogical" should be avoided
(cleaned up)). Applying the statutory interpretation urged by
the State -- that "felony or misdemeanor" in HRS § 846F-3 means
all criminal offenses -- would also render the specific language

6 Each ICAC offense listed in HRS § 846F-2 is a felony or a
misdemeanor, as follows: the Class A felony offense of first-degree
promoting child abuse; the Class B felony offense of second-degree promoting
child abuse; the Class C felony offense of third-degree promoting child
abuse; the Class B felony of electronic enticement of a child in the first
degree; the Class C felony of electronic enticement of a child in the second
degree; the misdemeanor of indecent electronic display to a child; and the
Class C felony of promoting pornography for minors.

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of "felony or misdemeanor" a nullity, a result we must avoid.
See Jijun Yin v. Aguiar, 146 Hawai‘i 254, 265, 463 P.3d 911, 922
(2020) (noting the "rules of statutory construction require
rejection of an interpretation that renders any part of the
statutory language a nullity" (citation omitted)). Further, a
pari materia construction of these related statutes -- HRS
§ 846F-2's definition of ICAC offenses and HRS § 846F-3's
imposition of ICAC fees -- compels the same conclusion that the
ICAC fees apply only to ICAC offenses. See HRS § 1-16.
2. The legislative history also confirms the ICAC
fee was intended to apply only to ICAC
offenses.
Assuming arguendo the ICAC fee statute HRS § 846F-3 is
ambiguous, the legislative history of HRS Chapter 846F reflects
that the ICAC fee was intended to apply only to ICAC offenses.
See Barker, 153 Hawai‘i at 148, 528 P.3d at 221. HRS Chapter
846F was enacted as Act 115 in 2014, as a new chapter known as
"Alicia's Law," in memory of a victim of an internet predator.
2014 Haw. Sess. Laws Act 115, § 1 at 325. Act 115 states: "The
purpose of this Act is to combat internet crimes against
children by establishing an internet crimes against children fee
and a special fund to assist law enforcement to investigate and
prosecute internet crimes against children and groups working
directly to fight internet crimes against children." Id. The
legislative history reflects that the initial bill, Senate Bill
702, went through multiple committees and readings in the Hawai‘i
State Senate and House of Representatives, until it passed Final
Reading by the Conference Committee on April 25, 2014. 7

7 See S. Stand. Comm. Rep. No. 388, in 2013 Senate Journal, at
1047; S. Stand. Comm. Rep. No. 2818, in 2014 Senate Journal, at 1134; H.
Stand. Comm. Rep. No. 956-14, in 2014 House Journal, at 1217-18; H. Stand.
Comm. Rep. No. 1104-14, in 2014 House Journal, at 1269; H. Stand. Comm. Rep.
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The final Conference Committee Report No. 88-14
specifically contained language clarifying that the proposed
ICAC fee would be imposed for felony or misdemeanor convictions
of "internet crimes against children," as follows:
The purpose of this measure is to combat internet
crimes against children by:

(1) Establishing an internet crimes against children fee,
which shall be assessed against a defendant for each felony
or misdemeanor conviction of internet crimes against
children;

(2) Establishing an internet crimes against children
special fund intended to enable law enforcement to
investigate and prosecute such crimes and to assist groups
working directly to fight such crimes; and

(3) Making an appropriation to the internet crimes against
children special fund and from the special fund for
training and equipment, investigation and prosecution of
internet crimes against children, and combatting such
crimes.

Your Committee on Conference finds that in 2008, USA
Today reported that the Internet Crimes Against Children
Task Forces had identified 2,297 unique computers in Hawaii
trading sadistic images of infants and toddlers being tied
up, tortured, and raped. Due to limited funds, equipment,
and training, only a very small percentage of investigative
leads related to such crimes are examined every month. Your
Committee on Conference finds that imposing a fee on
every defendant convicted of a felony or misdemeanor for
internet crimes against children will help to establish
funding to enhance the investigation and prosecution of
such crimes and protect Hawaii's children.

Your Committee on Conference has amended this measure
by:

(1) Inserting an internet crimes against children fee
amount of up to $100 for each felony or misdemeanor
conviction for internet crimes against children;

(2) Inserting an appropriation amount of $62,500 to be
deposited from general revenues into the internet crimes
against children special fund and from the special fund for
training and equipment, investigation and prosecution of

No. 1548-14, in 2014 House Journal, at 1414; Conf. Comm. Rep. No. 88-14, in
2014 Senate Journal, at 726.
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internet crimes against children, and combatting such
crimes; and

(3) Inserting an effective date of July 1, 2014.

Conf. Comm. Rep. No. 88-14, in 2014 Senate Journal, at 726
(emphases added). As shown above, the legislature repeatedly
and consistently specified that the ICAC fee would apply to
felony or misdemeanor convictions "for internet crimes against
children" or "of internet crimes against children[.]" Id.
(emphases added). Thus, the legislative history confirms the
ICAC fee was intended to apply only to ICAC offenses defined
under HRS § 846F-2. See Barker, 153 Hawai‘i at 148, 528 P.3d at
221.
3. Limiting the imposition of the ICAC fee to
ICAC offenses is consistent with HRS
§ 37-52.3's requirement of "a clear link"
between the ICAC special fund and its revenue
source.
Nagamine argues that the imposition of the ICAC fee
was error because the special funds statute, HRS § 37—52.3,
requires a "clear link" between the special fund and its revenue
source; and no "link" or "nexus" exists between the ICAC fee and
his Habitual OVUII conviction. In its Answering Brief, the
State does not specifically counter Nagamine's argument, and
argues that ICAC fees were upheld as constitutional fines under
State v. Adcock, 148 Hawai‘i 308, 473 P.3d 769 (App. 2020). 8

8 In Adcock, 148 Hawai‘i at 321, 473 P.3d at 782 (brackets omitted),
the defendant opposed the imposition of the ICAC fee for his first-degree
terroristic threatening offenses because "none of his offenses are in any way
related to internet crimes against children." This court "read this
complaint as an argument that the statute violates his right to substantive
due because there is no rational basis for the imposition of the ICAC fee,"
and rejected it, upholding the ICAC fees in that case. Id. The defendant in
Adcock did not challenge, and this court did not address, the imposition of
the ICAC fee based on the ICAC definition in HRS § 846F-2.
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The special funds statute, HRS § 37-52.3, establishes
the "[c]riteria for the establishment and continuance of special
funds." HRS § 37—52.3 requires "a clear link between the
program and the sources of revenue[.]" The legislative history
of this statute indicates that "because special and revolving
funds should only be used for their specified purpose and cannot
be used for other programs, efforts must be made to ensure that
these funds are the most appropriate funding mechanism for the
programs they support." H. Stand. Comm. Rep. No. 601, in 2013
House Journal, at 1122-23.
In this case, the program subject to HRS § 37-52.3 is
the ICAC special fund created by HRS § 846F-4, which states:
(a) There is established in the state treasury the internet
crimes against children special fund, into which shall be
deposited:

(1) All fees collected pursuant to section 846F-3;

(2) Moneys appropriated by the legislature to the
fund;

(3) Other grants and gifts made to the fund; and

(4) Any income and capital gains earned by the fund.

(b) Moneys in the internet crimes against children special
fund shall be expended by the department of the attorney general
for the following purposes:

(1) To provide training and equipment for local law
enforcement agencies to use in investigating and
prosecuting internet crimes against children, including
funding to increase the forensic capacity of digital
evidence;

(2) To enable law enforcement to investigate and
prosecute internet crimes against children; and

(3) To assist groups working directly to combat
internet crimes against children.

(Emphases added.)

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The ICAC special fund is funded in part by "[a]ll fees
collected pursuant to section 846F-3[,]" and HRS § 846F-3(c), in
turn, provides that the ICAC fee "shall be deposited with the
director of finance who shall transmit the fee to the [ICAC]
special fund pursuant to section 846F-4." Thus, as a special
fund, the ICAC special fund is subject to HRS § 37-52.3's
requirement of maintaining "a clear link" between the ICAC
special fund and its revenue source -- the ICAC fees collected
under HRS §§ 846F-3 and -4.
The term "clear link" is not defined in HRS § 37—52.3.
When a term is not defined by statute, "we determine its meaning
by looking to its 'ordinary and familiar signification' and
'general and popular use[,]'" and we may "also consider 'legal
or other well accepted dictionaries.'" State v. Kaeo, 151
Hawai‘i 329, 334, 512 P.3d 154, 159 (2021) (citation omitted).
The word "clear" is defined as "free from obscurity or
ambiguity[,] easily understood[,] and unmistakable." Clear,
Merriam-Webster, https://www.merriam-webster.com/dictionary/
clear (last visited Feb. 21, 2025). "Link" is defined as "a
connecting element or factor." Link, Merriam-Webster,
https://www.merriam-webster.com/dictionary/link (last visited
Feb. 21, 2025). Thus, "clear link" means an easily understood
connection between two elements.
Here, the ICAC fee was imposed on a Habitual OVUII
conviction, which is not an ICAC offense. There is no "clear
link" or easily understood connection between the ICAC special
fund and an ICAC fee collected from a defendant convicted of
Habitual OVUII. Habitual OVUII does not involve harm to
children via electronic means that are characteristic of the
ICAC offenses. Thus, the imposition of the ICAC fee in this

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case did not comply with the "clear link" requirement of HRS
§ 37-52.3.
Accordingly, we conclude the Circuit Court acted
outside its discretion in imposing the ICAC fee on Nagamine's
Habitual OVUII conviction in this case. See Barnes, 145 Hawai‘i
at 217, 450 P.3d at 747.
IV. CONCLUSION
For these reasons, we reverse the ICAC fee imposed by
the Circuit Court of the Fifth Circuit's August 11, 2021
Judgment of Conviction and Sentence. We affirm the remainder of
Nagamine's sentence.

On the briefs: /s/ Clyde J. Wadsworth
Presiding Judge
Matthew Mannisto,
for Defendant-Appellant. /s/ Karen T. Nakasone
Associate Judge
Tracy Murakami,
Deputy Prosecuting Attorney, /s/ Sonja M.P. McCullen
County of Kaua‘i Associate Judge
for Plaintiff-Appellee.

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