State v. Sithivong

NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
23-JUN-2025
07:43 AM
Dkt. 63 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI‘I

STATE OF HAWAI‘I, Plaintiff-Appellee,
v. KHAMDY SITHIVONG, Defendant-Appellant

APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT
HONOLULU DIVISION
(CASE NO. 1DTC-21-005028)

SUMMARY DISPOSITION ORDER
(By: Hiraoka, Presiding Judge, Wadsworth and Nakasone, JJ.)

This appeal challenges a restitution order for damages
to a vehicle from a car accident, for the offense of fleeing the
scene of an accident (fled scene offense) under Hawaii Revised
Statutes (HRS) § 291C-13. 1 We reverse.

1
The statute for a fled scene offense, HRS § 291C-13 (2020 & 2021
Supp.), requires a driver of a vehicle involved in a collision resulting in
damage to an attended vehicle to "immediately stop the vehicle at the scene
of the collision until the driver has fulfilled the requirements of section
291C-14." HRS § 291C-14 (2020 & 2021 Supp.), in turn, requires the driver to
provide their "name, address, and the registration number of the vehicle."
NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER

Defendant-Appellant Khamdy Sithivong (Sithivong)
appeals from the District Court of the First Circuit's (District
Court) 2 July 27, 2022 "Notice of Entry of Judgment and/or Order
and Plea/Judgment" (Judgment), and August 3, 2022 "Free Standing
Order of Restitution" (Restitution Order).
On appeal, Sithivong argues that restitution was
erroneously awarded under HRS § 706-646(2), 3 where there was "no
evidence" that Sithivong's violation of HRS § 291C-13 for his
"'failure to stop at or return to the scene,' . . . caused the
Complainant's car damages or made them worse."
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, we resolve
Sithivong's contention as follows, and reverse.
Following Sithivong's March 2, 2022 no contest plea,
Plaintiff-Appellee State of Hawaiʻi (State) requested restitution
for the damage to Marlon Yabut's (Complainant) vehicle.
Sithivong opposed the request, arguing there was "no nexus"
between Sithivong's conduct and the restitution sought.
The District Court held four hearings on the State's
restitution request -- on May 2, 2022, June 6, 2022, July 11,
2022, and July 27, 2022.
At the May 2, 2022 hearing, no evidence was presented,
only argument. At the end of the hearing, both sides were
permitted to submit memoranda on restitution.
Sithivong's May 23, 2022 memorandum cited State v.
Domingo, 121 Hawaiʻi 191, 216 P.3d 117 (App. 2009) and State v.

2 The Honorable Harlan Y. Kimura presided.

3 HRS § 706-646(2) (2014 & 2019 Supp.), entitled "Victim
restitution," provides that a "court shall order the defendant to make
restitution for reasonable and verified losses suffered by the victim or
victims as a result of the defendant's offense." (Emphasis added.)

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Preza, NO. CAAP-XX-XXXXXXX, 2019 WL 245667 (Haw. App. Jan. 17,
2019) (SDO), overruled on other grounds by State v. Baker, 146
Hawaiʻi 299, 463 P.3d 956 (2020), to argue that there was no
"causal nexus" between the offense and the Complainant's losses
because leaving the scene of the accident did not cause any
damage to the Complainant's vehicle. The State's May 23, 2022
memorandum argued that unlike Domingo, in which the complainant
"caused the collision," Sithivong hit the Complainant's car
while it was parked; and that because Sithivong fled the scene
of the collision, the Complainant "had to pay out of pocket to
fix his vehicle."
At the second restitution hearing on June 6, 2022, the
State did not have the Complainant present to testify, no
evidence was presented, and only argument was made. The
District Court indicated that the matter was "scheduled for
hearing on the restitution study[,]" and that the State should
have been "prepared to go forward." The restitution hearing was
continued as a "[l]ast continuance for the State[,]" over the
defense's objection.
At the third restitution hearing on July 11, 2022,
again no evidence was presented, only argument. Despite taking
no evidence, the District Court ordered restitution of
$3,314.67, purportedly relying on Preza, as follows:
THE COURT: I did take a look -- I did take a
look at the State v. Preza Intermediate Court of Appeals
case, which is unpublished. And the operative sentence
in this opinion the Court believes is the statement where
the Intermediate Court of Appeals said the District Court
abused its discretion because no evidence was adduced to
show Preza's failure to stop at or return to the scene
contributed to the damage.

. . . .

So the Court finds that – that word damage [sic] as
set forth in the Preza case includes both the physical
damage to the vehicle as well as the pecuniary loss
suffered by the complaining witness, which would constitute

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damage also. In other words, damage includes both the
physical damage and the dollar loss.

So that being the case -- that being the case,
restitution will be ordered in the amount of $3,314.67
payable to Marissa Mercado.[4]

(Emphases and footnote added.) The defense then interjected,
stating Sithivong still contested "the amount of restitution,"
and the Complainant was still not present to testify. The
District Court granted a continuance again, over Sithivong's
objection that the District Court had already "designate[d] this
[sic] the last continuance for the State."
At the fourth restitution hearing on July 27, 2022,
the District Court stated that it had already determined there
was a "nexus" at the July 11, 2022 hearing, and the only issue
left to determine was "how much should the restitution be[,]" as
follows:
THE COURT: Well, first of all -- well, first
of all, the Court did make the determination that there
was a nexus . . . . And I determined there was a nexus
because there was -- the issue is, according to State v.
Preza, which was previously cited, there would need to be
evidence that the defendant's failure to stop at or return
to the scene contributed to the damage. And the issue was
damage at the prior hearing. And I determined that damage
is not only physical damage, but also pecuniary damage.

. . . .

So based upon that, as I said before, there
was a nexus. Today's hearing was solely to determine how
much of the restitution [sic].

4
Because there were no findings accompanying this ruling, it is
not clear where or how the District Court arrived at this amount it awarded
to another complainant, "Marissa Mercado." We take judicial notice, however,
of an April 21, 2022 restitution study prepared by a court officer that is
contained in the lower court record in this case. The restitution study
listed two complainants, Emerito Yabut and Marissa Mercado; indicated
"$3,314.67 is the applicable amount of restitution to Emerito Yabut"; and
noted "zero [-0-] is the applicable amount of restitution to Marissa
Mercado." Assuming arguendo the District Court's ruling awarding $3,314.67
to Marissa Mercado was based on the restitution study, it appears to
incorrectly apply the restitution study.

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(Emphases added.) The District Court then heard testimony from
a court officer with the Restitution Unit and from the
Complainant. Testimony reflected that Sithivong "collided" with
the Complainant's "parked" vehicle that had a door open.
The District Court entered the August 3, 2020
Restitution Order that Sithivong pay restitution in the amount
of $3,300.00. Sithivong timely appealed.
On appeal, relying on Domingo and Preza, Sithivong
argues that because there was "no evidence" that Sithivong's
fled scene offense "caused the Complainant's car damages or made
them worse[,]" restitution was improper under HRS § 706-646(2),
which authorizes restitution only for a victim's loss suffered
"as a result of the defendant's offense."
The plain language of HRS § 706-646 allows restitution
for reasonable and verified losses suffered by the victim "as a
result of the defendant's offense." HRS § 706-646(2) (emphasis
added). "To determine whether a sufficient nexus exists for the
application of HRS § 706-646, a court must determine whether the
evidence supports a finding that the defendant's conduct was the
cause of or aggravated the victim's loss." State v. Phillips,
138 Hawaiʻi 321, 352, 382 P.3d 133, 164 (2016) (citation
omitted).
In Domingo, the defendant pled no contest to a fled
scene offense, where the complainant died, and was ordered to
pay restitution for airline costs, funeral expenses, a
gravestone, and an ambulance fee. 121 Hawaiʻi at 192-93, 216
P.3d at 118-19. On appeal, the defendant argued that his fled
scene offense "did not cause" the complainant's losses, and
therefore, restitution should not have been ordered. Id. at
194, 216 P.3d at 120. This court held that because the State
asserted that the complainant "caused the accident" and

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immediately died at the scene, there was "[n]o nexus" between
the defendant's fled scene offense and the complainant's
injuries and death, and restitution could not be imposed. Id.
at 195, 216 P.3d at 121.
In Preza, the defendant was convicted of a fled scene
offense, and was ordered to pay restitution for damages to the
other vehicle. 2019 WL 245667, at *1. On appeal, the defendant
argued there was "no nexus" between the offense and the damages
to the other vehicle. Id. This court held that the evidence
reflected that the "vehicle was damaged during the accident[,]"
and that the defendant "committed the offense after the accident
occurred." Id. at *2. Because "[n]o evidence was adduced" to
show that the defendant's conduct of fleeing the scene
"contributed to the damage[,]" the State "failed to meet its
burden to establish a causal connection between the restitution
requested and the offense charged[.]" Id.
Here, Preza applies and is dispositive. 5 The District
Court's purported application of Preza, to conclude that a
causal nexus was established, was incorrect because the State
did not meet its burden of proving "a causal connection between
the restitution requested and the offense charged[.]" See id.
At the time of the District Court's ruling at the third hearing
on July 11, 2022, the State had not presented any evidence upon
which the "nexus" determination or the amount could be based,
and the July 11, 2022 ruling ordering "restitution . . . in the
amount of $3,314.67" was erroneous. In any event, the evidence
that was adduced after this ruling, at the fourth hearing on
July 27, 2022, also did not establish the required "nexus" or
"causal connection" between the restitution requested and the

5 Sithivong argued Preza below and on appeal, and the District
Court explicitly referenced Preza, but the State's Answering Brief
conspicuously avoids any mention of Preza.

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fled scene offense. The record of the fourth hearing reflects
that the Complainant's vehicle was damaged during the accident,
prior to Sithivong's fled scene offense, and Sithivong's offense
"did not cause" the Complainant's damages. See id.; Domingo,
121 Hawaiʻi at 194, 216 P.3d at 120. The damage to the
Complainant's vehicle was not "a result of the defendant's
offense" of fleeing the scene of an accident, which is required
for restitution under HRS § 706-646(2).
The District Court thus abused its discretion when it
ordered restitution in the amount of $3,300.00. See State v.
Kahapea, 111 Hawaiʻi 267, 278, 141 P.3d 440, 451 (2006)
(reviewing sentencing matters for abuse of discretion).
For the foregoing reasons, we reverse the District
Court's July 27, 2022 Judgment as to the order of restitution
and August 3, 2022 Restitution Order.
DATED: Honolulu, Hawai‘i, June 23, 2025.
On the briefs:
/s/ Keith K. Hiraoka
Henry P. Ting,
Presiding Judge
Deputy Public Defender
for Defendant-Appellant.
/s/ Clyde J. Wadsworth
Associate Judge
Brian R. Vincent,
Deputy Prosecuting Attorney
/s/ Karen T. Nakasone
for Plaintiff-Appellee.
Associate Judge

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