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




                                                      Electronically Filed
                                                      Intermediate Court of Appeals
                                                      CAAP-XX-XXXXXXX
                                                      24-AUG-2020
                                                      08:00 AM



                 IN THE INTERMEDIATE COURT OF APPEALS

                          OF THE STATE OF HAWAI#I


                                  ---o0o---


                 STATE OF HAWAI#I, Plaintiff-Appellee,
                                   v.
                 BRIAN D. ADCOCK, Defendant-Appellant


                            NO. CAAP-XX-XXXXXXX


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


                              August 24, 2020


           LEONARD, PRESIDING JUDGE, CHAN and HIRAOKA, JJ.


                    OPINION OF THE COURT BY CHAN, J.

            Defendant-Appellant Brian D. Adcock (Adcock) appeals
from the May 31, 2019 Judgment; Conviction and Sentence; Notice
of Entry (Judgment) entered by the Circuit Court of the Second
Circuit (Circuit Court).1       We hold that the Circuit Court did not
err in determining that Adcock validly waived his right to
testify and that any error by the Circuit Court in failing to
obtain a verbal confirmation of Adcock's understanding of his
right not to testify was harmless.          We further hold that the

     1
            The Honorable Rhonda I.L. Loo presided.
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Crime Victim Compensation (CVC) fee and Internet Crimes Against
Children (ICAC) fee do not amount to unconstitutional taxes and
the Circuit Court did not abuse its discretion in imposing the
fees against Adcock.       However, we conclude that the Circuit Court
erred in failing to instruct the jury on merger.              For that
reason, we vacate the Judgment and remand for further proceedings
consistent with this opinion.
                               I.   BACKGROUND
            On October 15, 2018, Adcock was charged with two counts
of Terroristic Threatening in the First Degree, in violation of
Hawaii Revised Statutes (HRS) § 707-716(1)(e) (2014).2               In both
counts, it was alleged that on October 10, 2018, Adcock
threatened Bert Kamaka (Kamaka) and/or Billy Tagay (Tagay) with a
knife.    Count 1 further alleged that Adcock acted with the intent
to terrorize, or in reckless disregard of the risk of terrorizing
Kamaka.    Count 2 alleged that Adcock acted with the intent to
terrorize, or in reckless disregard of the risk of terrorizing
Tagay.
            During the jury trial, Kamaka testified that on the
morning of October 10, 2018, he arrived at Kalama Park with his
janitorial crew, which included Tagay, to clean the restrooms.
Kamaka and Tagay testified that they noticed Adcock pacing back
and forth about twenty feet from their location, making
stabbing-type motions with a kitchen knife.             Kamaka testified
that Adcock then approached them and said "I'm going to stab you
mother fuckers," while continuing to make the stabbing-type
motions with the knife.
            On February 7, 2019, after the State rested its case,


      2
            HRS § 707-716(1)(e) provides: "A person commits the offense of
terroristic threatening in the first degree if the person commits terroristic
threatening . . . [w]ith the use of a dangerous instrument or a simulated
firearm." Terroristic threatening in the first degree is a class C felony.

            HRS § 707-715 (2014) provides: "A person commits the offense of
terroristic threatening if the person threatens, by word or conduct, to cause
bodily injury to another person . . . [w]ith the intent to terrorize, or in
reckless disregard of the risk of terrorizing, another person[.]"

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the Circuit Court initiated the following Tachibana3 colloquy
with Adcock:
                THE COURT: Okay.

                So as I discussed with you at the beginning of the
          trial, Mr. Adcock, you have a constitutional right to
          testify in your own defense. Although you should consult
          with your lawyers regarding the decision to testify, it is
          your decision, and no one can prevent you from testifying
          should you choose to do so.

                If you decide to testify, the prosecution will be
          allowed to cross-examine you. That means ask questions of
          you. You also have a constitutional right not to testify
          and to remain silent. If you choose not to testify, the
          jury will be instructed that it cannot hold your silence
          against you in deciding your case.

                It is the understanding of the Court that you intend
          to testify tomorrow. Is that correct?

                THE DEFENDANT: Yes, ma'am.

                THE COURT: Okay.   Is anyone forcing you or making you
          do this?

                THE DEFENDANT: No.

                THE COURT: Anyone putting any pressure on you?

                THE DEFENDANT: No.

                THE COURT: Are you doing this voluntarily of your own
          free will?

                THE DEFENDANT: Yes.

                THE COURT: And have you spoken to your attorneys and
          discussed this matter with them regarding your decision to
          testify?

                THE DEFENDANT: Yes.

                THE COURT: Okay. Regardless of their advice and
          having discussed the matter with them, is it still your
          decision to testify in this case?

                THE DEFENDANT: Yes.

                THE COURT: Okay. And you've had a chance to consult
          with your lawyers about this decision. Is that right?

                THE DEFENDANT: I did.



     3
          Tachibana v. State, 79 Hawai#i 226, 900 P.2d 1293 (1995).


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                THE COURT: Okay. So the Court finds the defendant
          intends to testify tomorrow.

          The next morning, on February 8, 2019, Adcock's counsel
informed the Circuit Court that Adcock would no longer be
testifying and wanted the Circuit Court to re-Tachibana him.             The
Circuit Court engaged Adcock in the following colloquy:
                THE COURT: So, Mr. Adcock, as I discussed with you
          yesterday and at the beginning of the trial, you have a
          constitutional right to testify in your own defense.
          Although you should consult with your lawyers regarding the
          decision to testify, it is your decision and no one can
          prevent you from testifying should you choose to do so.

                If you decide to testify, the prosecutor will be
          allowed to cross-examine you, in other words, ask you
          questions. Do you understand?

                THE DEFENDANT: I do.

                THE COURT: Okay. You also have a constitutional right
          not to testify and to remain silent. If you choose not to
          testify, the jury will be instructed that it cannot hold
          your silence against you in deciding the case.

                It is the understanding of myself, the Court, that you
          do not intend to testify. Is that correct?

                THE DEFENDANT: That is correct.

                THE COURT: Okay.   Is anyone forcing you or making you
          do this?

                THE DEFENDANT: No.

                THE COURT: Is anyone putting any pressure on you?

                THE DEFENDANT: No.

                THE COURT: Anyone -- are you doing this voluntarily,
          of your own free will?

                THE DEFENDANT: Yes.

                THE COURT: I know you have two attorneys and you
          probably discussed this matter in some detail yesterday and
          probably again today. Is that right?

                THE DEFENDANT: That's right.

                THE COURT: And you slept on it. Is that a good way to
          put it? Okay. I just want to make sure, regardless of your
          attorneys' advice, it is your decision and your decision
          alone not to testify. Is that correct?

                THE DEFENDANT: That's correct.



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                  THE COURT: Okay. The Court, after questioning the
            defendant, finds that he has voluntarily, intelligently, and
            knowingly decided not to testify in front of the jury.

            The defense then rested without calling any witnesses
or presenting any evidence.
            During the settling of jury instructions, Adcock's
counsel argued: "[W]e are dealing with two counts of the
identical offense, and the record shows, in our view, a scintilla
of evidence that this was a continuous course of conduct on
October 10th, done with one intention or impulse.              We believe
                               [4]
that a merger instruction            must be given."     The Circuit Court
refused to provide the instruction.           The jury ultimately found
Adcock guilty as charged for both counts of Terroristic
Threatening in the First Degree.
            The Circuit Court entered its Judgment on May 31,
2019,5 sentencing Adcock on each count to five years in prison,


      4
            Adcock proposed the following instruction:

                  If and only if you find the Defendant guilty of any of
            the offenses in Count 1 and Count 2, you must then determine
            if the counts merge into a single offense and answer the
            following questions on a special interrogatory that will be
            provided to you:

                  (1)   Did the prosecution prove beyond a reasonable
                        doubt that the Defendant did not commit the
                        offenses in Count 1 and Count 2 as part of a
                        continuing and uninterrupted course of conduct?

                  (2)   Did the prosecution prove beyond a reasonable
                        doubt that the Defendant committed the offenses in
                        Count 1 and Count 2 with separate and distinct
                        intents, rather than acting with one intention,
                        one general impulse, and one plan to commit these
                        offenses?

            Your answers to these questions must be unanimous. If you
            answer both questions in the negative, the offenses merge. If
            any answer is answered in the affirmative, the offenses are
            separate and distinct.


      5
            The Judgment appears to mistakenly indicate that Adcock pled guilty
to the two counts of Terroristic Threatening in the First Degree. However, the
jury verdict and Adcock's Opening Brief state that he pled not guilty and
proceeded to jury trial, where the jury ultimately found him guilty on both
counts of terroristic threatening.


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to be served concurrently, with credit for time served, and
ordered him to pay a $105 CVC fee and a $100 ICAC fee, for a
total of $410.   On the same day, Adcock moved to strike the
imposition of the fees as being unconstitutional taxes.           The
Circuit Court denied Adcock's motion to strike the imposition of
the fees on June 26, 2019.
                         II.    POINTS OF ERROR
          On appeal, Adcock raises three points of error,
contending that the Circuit Court erred by: (1) failing to
conduct a "true colloquy" with him about his constitutional right
to testify; (2) not providing the jury with a merger instruction
under HRS § 701-109(1)(e) (2014); and (3) levying the $410.00 in
fees, which he asserts "[wa]s an [u]nconstitutional [d]elegation
of the [l]egislature's [t]axation [p]ower[.]"
                      III.     STANDARDS OF REVIEW
A.    Waiver of Right to Testify
          We review whether a criminal defendant knowingly,
intelligently, and voluntarily waived his or her right to testify
under the right/wrong standard.      State v. Eduwensuyi, 141 Hawai#i
328, 332-33, 409 P.3d 732, 736-37 (2018).
B.    Jury Instructions
          In reviewing a trial court's refusal to give a jury
instruction, we examine
          whether, when read and considered as a whole, the
          instructions given are prejudicially insufficient,
          erroneous, inconsistent, or misleading. Erroneous
          instructions are presumptively harmful and are a ground for
          reversal unless it affirmatively appears from the record as
          a whole that the error was not prejudicial. In other words,
          error is not to be viewed in isolation and considered purely
          in the abstract.

State v. Matuu, 144 Hawai#i 510, 516, 445 P.3d 91, 97 (2019)
(quoting State v. Kassebeer, 118 Hawai#i 493, 504, 193 P.3d 409,
420 (2008)).
C.    Constitutionality of Statutes
          [T]he constitutionality of a statute is a question of law
          which is reviewable under the right/wrong standard.
          Additionally, where it is alleged that the legislature has


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            acted unconstitutionally, this court has consistently held
            that every enactment of the legislature is presumptively
            constitutional, and a party challenging the statute has the
            burden of showing unconstitutionality beyond a reasonable
            doubt. The infraction should be plain, clear, manifest, and
            unmistakable.

State v. Calaycay, 145 Hawai#i 186, 197, 449 P.3d 1184, 1195
(2019) (quoting State v. Gaylord, 78 Hawai#i 127, 137, 890 P.2d
1167, 1177 (1995)).
                             IV.   DISCUSSION
A.      Waiver of Right to Testify
            Adcock first alleges that the Circuit Court failed to
engage in a "true colloquy" with him prior to the waiving of his
right to testify at trial.
            Under Tachibana v. State, "trial courts must advise
criminal defendants of their right to testify and must obtain an
on-the-record waiver of that right in every case in which the
defendant does not testify."       79 Hawai#i at 236, 900 P.2d at
1303.    This colloquy is also required where the defendant does
testify, "effectively making such a colloquy necessary in every
trial."    State v. Torres, 144 Hawai#i 282, 285, 439 P.3d 234, 237
(2019).
            A Tachibana colloquy has two components: an apprisal of
the "fundamental principles pertaining to the right to testify
and the right not to testify[,]" State v. Celestine, 142 Hawai#i
165, 170, 415 P.3d 907, 912 (2018) (citing Tachibana, 79 Hawai#i
at 236 n.7, 900 P.2d at 1303 n.7), and "a verbal exchange between
the judge and the defendant 'in which the judge ascertains the
defendant's understanding of the proceedings and of the
defendant's rights[,]'" id. (emphasis omitted) (quoting State v.
Han, 130 Hawai#i 83, 90, 306 P.3d 128, 135 (2013)).           Thus, a
valid waiver of the right to testify necessarily follows an
accurate advisement of rights and the defendant's acknowledgment
of those rights.     Eduwensuyi, 141 Hawai#i at 336, 409 P.3d at
740.
            In order to be a "true colloquy," the trial court


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cannot merely "recite[] a litany of rights" but must ascertain
whether the defendant understood his or her rights and the
protections associated with those rights, through a verbal
exchange.    State v. Pomroy, 132 Hawai#i 85, 93–94, 319 P.3d 1093,
1101–02 (2014).
            The Circuit Court in this case properly advised Adcock
of his rights both to testify and not to testify on two
occasions.    See Tachibana, 79 Hawai#i at 236 n.7, 900 P.2d at
1303 n.7 (instructing that the colloquy should advise the
defendant "that he or she has a right to testify, that if he or
she wants to testify that no one can prevent him or her from
doing so, and that if he or she testifies the prosecution will be
allowed to cross-examine him or her.     In connection with the
privilege against self-incrimination, the defendant should also
be advised that he or she has a right not to testify and that if
he or she does not testify then the jury can be instructed about
that right." (citation and brackets omitted)); Pomroy, 132
Hawai#i at 91, 319 P.3d at 1099 (noting that footnote seven in
Tachibana "stated the purpose and substance of the
right-to-testify colloquy").    The record, however, lacks a verbal
exchange after the Circuit Court apprised Adcock of his right not
to testify on either of the two occasions, the first point at
which Celestine advises the trial court to conduct such an
exchange.    142 Hawai#i at 170, 415 P.3d at 912.
            Adcock argues that without a "true colloquy" there
could not be a valid waiver of the right not to testify.     In
Pomroy, the supreme court held, inter alia, that the lower court
erred when it did not properly inform the defendant of his right
to testify and the defendant subsequently decided not to testify.
132 Hawai#i at 92-94, 319 P.3d at 1100-02.    Unlike here, the
error in Pomroy was related to the right that Pomroy waived and
therefore was not harmless.    See id.   In this case, Adcock
decided not to testify, thereby waiving his right to testify, but
asserts that the Circuit Court's failure to engage in a "true

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colloquy" about his right not to testify warrants a new trial.
We have previously held that when the deficiency in a Tachibana
colloquy is not related to the right waived, the error appears
harmless.   See State v. Pantke, No. CAAP-XX-XXXXXXX, 2018 WL
1918200, at *2 n.4 (Haw. App. Apr. 24, 2018) (SDO) ("Because
th[e] error here . . . was in failing to properly advise Pantke
of his right not to testify, and Pantke did not testify, the
error appears to be harmless."); State v. Dykas, No.
CAAP-XX-XXXXXXX, 2018 WL 852202, at *2 (Haw. App. Feb. 14, 2018)
(SDO) (determining that where the court omitted the advisement
that no adverse inference could be made from the defendant not
testifying and the defendant exercised her right not to testify,
the omission had no effect on the defendant's decision not to
testify because knowing that there would be no adverse
consequences from her failure to testify would not have caused or
influenced her to testify).    Therefore, even if we were to
conclude that the Circuit Court erred in not obtaining verbal
confirmation that Adcock understood his right not to testify,
such error is harmless because Adcock did not waive that right.
            The crux of the issue is thus whether Adcock properly
waived his right to testify.    To determine whether Adcock validly
waived his right to testify we must look at the totality of the
facts and circumstances in this case.    See Celestine, 142 Hawai#i
at 171, 415 P.3d at 913.   After examining the totality of the
facts and circumstances of the case before us, we conclude that
Adcock knowingly, intelligently, and voluntarily waived his right
to testify.   Decisive to our inquiry is the fact that Adcock
concedes that on February 8, 2019, the Circuit Court "correctly
inquired" whether he understood his right to testify, shortly
before he waived that right.    On the previous day, his counsel
announced he would testify, but Adcock retracted that decision
and relayed that he "would like [the Circuit Court] to
re-Tachibana him."   During the second colloquy, Adcock affirmed
to the Circuit Court that he understood he had the right to


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testify.   His own affirmation that he understood the right to
testify provides an objective basis for us to conclude that his
waiver of the right to testify was knowing, intelligent, and
voluntary.   See id. at 170, 415 P.3d at 912.   Thus, the record
shows that Adcock was properly advised of his right to testify,
affirmed that he understood that he had the right to testify, and
waived his right to testify.
B.    Merger
           In his second point of error, Adcock alleges that the
Circuit Court erred by refusing to instruct the jury on the law
of merger.
           The law of merger, under HRS § 701–109, "interposes a
constraint on multiple convictions arising from the same criminal
conduct" and "reflects a policy to limit the possibility of
multiple convictions and extended sentences when the defendant
has basically engaged in only one course of criminal conduct
directed at one criminal goal, or when it would otherwise be
unjust to convict the defendant for more than one offense."
State v. Deguair, 139 Hawai#i 117, 128, 384 P.3d 893, 904 (2016)
(internal quotation marks omitted) (first quoting State v.
Matias, 102 Hawai#i 300, 305, 75 P.3d 1191, 1196 (2003) and then
quoting Commentary to HRS § 701–109); State v. Frisbee, 114
Hawai#i 76, 80–81, 156 P.3d 1182, 1186–87 (2007) (stating the
same).   HRS § 701-109(1)(e) provides, in relevant part, that
"[t]he defendant may not . . . be convicted of more than one
offense if . . . [t]he offense is defined as a continuing course
of conduct and the defendant's course of conduct was
uninterrupted, unless the law provides that specific periods of
conduct constitute separate offenses."
           In order for the court to be able to instruct the jury
on the merger, all three elements of subsection (e) must apply:
(1) the offense must be defined as a continuing course of
conduct; (2) the defendant's conduct was uninterrupted; and (3)
the law does not specify that periods within that course of


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conduct are separate offenses.    See HRS § 701-109(1)(e); State v.
Lavoie, 145 Hawai#i 409, 431, 453 P.3d 229, 251 (2019).
          Central to the issue here is whether terroristic
threatening with a dangerous weapon or simulated firearm is
defined as continuing course of conduct.    Whether a particular
criminal offense can be charged as a continuous offense is a
question of law.   Lavoie, 145 Hawai#i at 431, 453 P.3d at 251
(citing State v. Decoite, 132 Hawai#i 436, 442, 323 P.3d 80, 86
(2014) (Pollack, J., dissenting)).    "The test for whether a crime
can be charged as a continuous offense is whether the statute
precludes charging an offense as a continuous offense, and
whether the element(s) of the offense may constitute a
continuous, unlawful act or series of acts, however long a time
the act or acts may occur."    Id. (citing Decoite, 132 Hawai#i at
438, 323 P.3d at 82 (majority opinion)).
          The State argues that HRS § 707-716(1)(a) (2014),
threatening one victim on multiple occasions with a single
intent, and subsection (b), threatening multiple victims on one
occasion, are continuing courses of conduct, and by implication,
the other subsections, including subsection (e) do not address
continuing courses of conduct.    Without a doubt, the statutory
definition of terroristic threatening under subsection (a)
permits a showing that the offense "was committed by a series of
acts constituting a continuing course of conduct."    State v.
Apao, 95 Hawai#i 440, 447-48, 24 P.3d 32, 39-40 (2001) (denying
specific unanimity instruction in terroristic threatening charge
where the record indicated that multiple threats occurred over
one uninterrupted occasion).    The supreme court did not address
the remaining subsections but noted that "the very nature of
threatening conduct connotes a combination or series of words
and/or actions that together constitute a threat."    Id. at 447,
24 P.3d at 39.
          Nothing in the language of HRS § 707-716(1)(e)
"precludes" charging terroristic threatening with a dangerous


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instrument under subsection (e) as a continuous offense.            See
Lavoie, 145 Hawai#i at 431, 453 P.3d at 251; State v. Arceo, 84
Hawai#i 1, 18–19, 928 P.2d 843, 860–61 (1996) (stating that
examples of "continuing offenses" include: first degree murder;
first degree robbery; kidnapping, under certain circumstances;
theft of a firearm; and theft of state property by deception; but
do not include "sexual offenses").
            Because terroristic threatening may be defined as a
continuing course of conduct, HRS § 701-109(1) may apply.             "If
there is a possibility that two counts of a complaint are
'grounded in the same conduct,' HRS § 701-109(1) mandates, 'at a
minimum, that the circuit court instruct the jury regarding
merger.'"    State v. Wilson, No. 28478, 2009 WL 48141, at *18
(Haw. App. Jan. 7, 2009) (mem. op.) (quoting Frisbee, 114 Hawai#i
at 80, 156 P.3d at 1186).
            Whether a course of conduct gives rise to more than one
            crime within the meaning of HRS § 701–109(1)(e) depends in
            part on the intent and objective of the defendant. The test
            to determine whether the defendant intended to commit more
            than one offense is whether the evidence discloses one
            general intent or discloses separate and distinct intents.
            Where there is one intention, one general impulse, and one
            plan, there is but one offense. All factual issues involved
            in this determination must be decided by the trier of fact.

State v. Hoey, 77 Hawai#i 17, 27 n.9 , 881 P.2d 504, 514 n.9
(1994) (emphasis added) (brackets omitted) (quoting State v.
Alston, 75 Haw. 517, 527–28, 531, 865 P.2d 157, 163–65 (1994)).
Indeed, "the state of mind of the defendant at the time . . .
will determine the number of charged crimes of which the
defendant may properly be convicted, and merger is the means by
which charging schemes that do not comport with the defendant's
state of mind are corrected."       State v. Ganal, 81 Hawai#i 358,
384, 917 P.2d 370, 396 (1996) (applying HRS § 701-109(1)(a) to
convictions for first-degree murder and attempted first-degree
murder involving multiple victims).
            The number of victims does not preclude the use of
merger, where facts presented show only a general intent to


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commit the offense.    See, e.g., State v. Galante, No.
CAAP-XX-XXXXXXX, 2019 WL 926627, at *2 (Haw. App. Feb. 26, 2019)
(SDO) (determining that two counts of Inattention to Driving
merged where the defendant's conduct resulted in a single
collision between the defendant's vehicle and a vehicle
containing two people).    In Deguair, 139 Hawai#i at 128-129, 384
P.3d at 904-05, the supreme court concluded that four kidnapping
convictions, each involving a different victim, should merge with
a robbery conviction because the jury had found that "each
kidnapping was committed as a continuing course of conduct, with
no separate and distinct intent from the robbery."    Thus, the
supreme court emphasized that intent, and not the result of the
conduct upon each victim, is paramount when applying merger.
            Here, the indictment cites the same conduct in both
counts: "that [Adcock] . . . did threaten, by word or conduct, to
cause bodily injury to Bert Kamaka and/or Billy Tagay, with the
use of a dangerous instrument or a simulated firearm, to wit, a
knife[.]"    The counts differ in the intent element, alleging that
Adcock intended to terrorize or recklessly disregarded the risk
of terrorizing, Kamaka in Count 1, and Tagay in Count 2.
            Adcock maintains on appeal that "[b]oth complainants
testified that Mr. Adcock's words and conduct constituted the
same act and that he threatened both complainants at the same
time."   Kamaka testified that prior to starting work in the
Kalama Park area on October 10, 2018, he warned his janitorial
crew that a man had approached him at the park the day before and
told Kamaka that he would cut and stab Kamaka if the crew touched
the man's and another homeless man's belongings.    When the
janitorial crew arrived at the park in the early morning of
October 10, 2018, Adcock was pacing along a walkway leading to
the bathroom with a kitchen knife.    Kamaka testified that Adcock
approached the truck and crew with the kitchen knife while making
stabbing motions, and yelled, "I'm going to stab you mother
fuckers."    Tagay also testified that Adcock said he was going to


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stab them, while showing them the knife, and took steps towards
where the crew was.    Tagay further stated that Adcock smirked at
the crew and taunted them, "calling us losers and stuff."
Adcock's statement to police after his arrest, however, was that
he only addressed one of the members of the janitorial crew,
asking him, "[Y]ou don't sound retarded, why are you stealing
their jobs?"   Whether Adcock possessed a "separate and distinct
intent" to terrorize Kamaka and Tagay individually was a factual
issue to be determined by the trier of fact.        See Hoey, 77
Hawai#i at 27 n.9, 881 P.2d at 514 n.9.       The jury instructions
were prejudicially insufficient, and thus the Circuit Court erred
in refusing to instruct the jury regarding the merger of the two
counts.
          Adcock maintains that a finding of instructional error
requires that his sentence be vacated and remanded for a new
trial.
          When a trial court plainly errs by failing to give a merger
          instruction in the first place, the usual remedy is a
          retrial. However, as noted approvingly by the Supreme Court
          of Hawai#i in Deguair, when, on appeal, the State suggests
          dismissing one of the defendant's convictions to remedy the
          defect rather than face wholesale retrial, the appellate
          court may remand for that purpose.

State v. Hufanga, No. CAAP-XX-XXXXXXX, 2019 WL 1487047, at *3
(Haw. App. April 4, 2019) (SDO) (citations omitted).
Accordingly, we vacate the judgment and remand, giving the State
the option of retrying Adcock's charged offenses with the
appropriate merger instruction or dismissing one of the
terroristic threatening charges.        See State v. Padilla, 114
Hawai#i 507, 517, 164 P.3d 765, 775 (App. 2007).
C.    Post-Trial Fee Discussion
          Adcock claims that the Circuit Court's assessment of
$410 was the result of an unconstitutional delegation of the
legislature's taxation power to the judiciary.         Under the Hawai#i
Constitution, the State has reserved the power of taxation to the
legislature, but such power may be delegated by the legislature
to the counties.   Hawaii Insurers Council v. Lingle, 120 Hawai#i

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51, 70, 201 P.3d 564, 583 (2008) (citing Haw. Const. art. VIII, §
3); see also McCandless v. Campbell, 20 Haw. 411, 420 (Haw. Terr.
1911) ("The power of taxation is essentially a legislative power.
It cannot be delegated except to municipalities which themselves
exercise subordinate legislative powers.").
            The fees here were created by the legislature,
specifically under HRS § 351-62.6 (2015) and HRS § 846F-3 (2015).
These statutes have a presumption of constitutionality and it is
Adcock's burden to show unconstitutionality beyond a reasonable
doubt.    Calaycay, 145 Hawai#i at 197, 449 P.3d at 1195.
            Because these fees were established by the legislature,
they are distinguishable from the fees challenged in the cases
Adcock relies upon.    Particularly, State v. Medeiros, 89 Hawai#i
361, 973 P.2d 736 (1999), concerned fees established by a
Honolulu municipal ordinance, and Hawaii Insurers Council, 120
Hawai#i 51, 201 P.3d 564, concerned fees established by the
Insurance Commission, a regulatory agency.
            Adcock bases his argument that the legislature
impermissibly delegated its taxation power to the judiciary on
the assertion that the "fees" assessed as part of his sentence
were not "fees," but rather "taxes."     Adcock posits that "[a]ny
charge 'imposed by the government on persons, entities,
transactions, or property to yield public revenue' is a tax."
This is a faulty syllogism based on the Black's Law Dictionary
definition quoted in Hawaii Insurers Council which defines tax as
"[a] monetary charge imposed by the government on persons,
entities, transactions, or property to yield public revenue."
120 Hawai#i at 60, 201 P.3d at 573 (quoting Black's Law
Dictionary 1496 (8th ed. 2004)).      Adcock ignores that the court
emphasized that "[n]ot every exaction by state authorities is a
tax."    Id. at 59, 201 P.3d at 572 (brackets in original) (quoting
Hexom v. Oregon Dep't of Transp., 177 F.3d 1134, 1135 (9th Cir.
1999)).
            The nature of a charge imposed by law "is not


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determined by the label given to it but by its operating
incidence."    Medeiros, 89 Hawai#i at 366, 973 P.2d at 741
(quoting Stewarts' Pharmacies v. Fase, 43 Haw. 131, 144 (1959));
see also People v. Graves, 919 N.E.2d 906, 910 (Ill. 2009)
("[T]he statutory labels applied to a charge do not control where
the purpose of the charge contradicts that label." (citing People
v. Jones, 861 N.E.2d 967, 985-86 (Ill. 2006))).           Therefore, it is
inconsequential that the charges that Adcock challenges are
labeled as "fees."
            The Hawai#i Supreme Court has defined "taxes" as
follows:
                  Taxes are the enforced proportional contributions from
            persons and property, levied by the state by virtue of its
            sovereignty for the support of government, and for all
            public needs.

                  Taxes are generally defined as burdens or charges
            imposed by legislative authority on persons or property to
            raise money for public purposes, or, more briefly, an
            imposition for the supply of the public treasury.

                  The word taxes is very comprehensive, and properly
            includes, as indicated in the foregoing definition, all
            burdens, charges and impositions by virtue of the taxing
            power with the object of raising money for public purposes.

Hawaii Insurers Council, 120 Hawai#i at 59–60, 201 P.3d at 572–73
(quoting McCandless, 20 Haw. at 420).
            A fee is a charge that "(1) applies to the direct
beneficiary of a particular service, (2) is allocated directly to
defraying the costs of providing the service, and (3) is
reasonably proportionate to the benefit received."            Medeiros, 89
Hawai#i at 367, 973 P.2d at 742 (modifying the test enunciated in
Emerson College v. City of Boston, 462 N.E.2d 1098, 1105 (Mass.
1984)).    The supreme court has further distinguished between user
fees and regulatory fees.       A user fee, such as a bridge toll or
charges for sewer hookups or wastewater management, is "based on
the rights of the entity as a proprietor of the instrumentalities
used."    Hawaii Insurers Council, 120 Hawai#i at 60, 201 P.3d at
573 (quoting Medeiros, 89 Hawai#i at 366, 973 P.2d at 741).                A
user fee is generally charged to the recipient of a service

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provided by the government.    Id. at 62, 201 P.3d at 575.    In
contrast, regulatory fees, such as licensing and inspection fees,
are "founded on the police power to regulate particular
businesses or activities."    Id. (quoting Medeiros, 89 Hawai#i at
366, 973 P.2d at 741).
          The Attorney General, in an amicus brief, posits a
third possibility: that the assessed charges are "fines."      A
"'fine' is 'a pecuniary punishment or penalty[.]'"     Casumpang v.
ILWU Local 142, 108 Hawai#i 411, 422, 121 P.3d 391, 402 (2005)
(quoting Black's Law Dictionary 6th ed. 1990)).     More
specifically, it is a "a retributive payment due the sovereign."
State v. Toyomura, 80 Hawai#i 8, 18 n.14, 904 P.2d 893, 903 n.14
(1995) (emphasis in original) (internal quotation marks omitted)
(quoting Gaylord, 78 Hawai#i at 152, 890 P.2d at 1192).      Fines
are included in the punishments prescribed by the legislature in
HRS § 706-605 (2014 & Supp. 2018).    See also State v. Nunes, 72
Haw. 521, 524, 824 P.2d 837, 839 (1992).    Under the Hawaii Penal
Code, fines are permitted in addition to a sentence of
imprisonment or incarceration where "[t]he court is of the
opinion that a fine is specially adapted to the deterrence of the
crime involved or to the correction of the defendant."     HRS §
706-641(2)(b) (2014).
          The Illinois Supreme Court has held that "the central
characteristic which separates a fee from a fine" is "whether the
charge seeks to compensate the state for any costs incurred as
the result of prosecuting the defendant."      Graves, 919 N.E.2d at
910 (citing Jones, 861 N.E.2d at 986).    "A charge is a fee if and
only if it is intended to reimburse the state for some cost
incurred in defendant's prosecution."    Id.   A fine, on the other
hand, is imposed only after conviction for a criminal offense and
is payable to the State treasury, and may, but is not required
to, vary with the severity of the behavior.     See Jones, 861
N.E.2d at 975, 986.
          Of the three classifications, the ICAC fee and CVC fee


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most resemble fines.    Both are penalties imposed after criminal
convictions, both are to be paid into special funds in the State
treasury that do not reimburse payments related to the
defendant's prosecution, and in the case of the CVC special fund,
the severity of the crime is a criterion to be considered when
the court orders the payment.
            The fees in question are punitive in nature.   HRS §
706-605(6) mandates that the court "shall impose a compensation
fee upon every person convicted of a criminal offense pursuant to
section 351-62.6," which in turn provides that the fee must be
imposed on every defendant convicted and "who is or will be able
to pay the compensation fee."    Similarly, HRS § 846F-3 requires
the court to 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."
Therefore, the legislature authorized the imposition of the
charges at issue here as a punishment for criminal behavior.
            The charges were not created to offset the costs of
prosecution.    The CVC special fund, which is supported in part by
fees authorized under HRS § 351-62.6, is intended "to aid victims
of criminal acts, by providing compensation for victims of
certain crimes or dependents of deceased victims[.]"    HRS § 351-1
(2015).   ICAC fees are to be deposited in a special fund that
shall be expended by the Attorney General to train, equip, and
enable local law enforcement agencies in investigating and
prosecuting internet crimes against children, and to assist
groups working directly to combat internet crimes against
children.    HRS § 846F-4(b) (2015).   Although Adcock is correct in
stating that money from the charges do not "defray any costs for
services to the defendants," which weighs against considering the
charges to be "fees" as described in Medeiros and Hawaii Insurers
Council, that point does not preclude them from being fines.
            Further supporting the conclusion that the CVC fee is a


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fine, the statute authorizing it requires the court to consider
HRS § 706-641, which applies to other criminal fines, when
determining the amount a defendant must pay.            See HRS §
351-62.6(b).   The statute also directs that
          the court shall consider all relevant factors, including but
          not limited to:

                (1)   The seriousness of the offense;

                (2)   The circumstances of the commission of the
                      offense;

                (3)   The economic gain, if any, realized by the
                      defendant;

                (4)   The number of victims; and

                (5)   The defendant's earning capacity, including
                      future earning capacity.

                (c)   The compensation fee shall be considered a civil
                judgment.

HRS § 351-62.6(b), (c).     Thus, the rates vary, in part, with the
seriousness of the offense, a factor demonstrating that a charge
is a fine under Jones.
          Adcock complains that these fees turn the courts into
revenue centers for the State.      On this point, comparison to
Medeiros is instructive.     The ordinance held to be
unconstitutional in Medeiros gave the city discretion to use the
funds in accordance with the city's annual operating budget,
rather than mandated that they be used on the law enforcement
objectives for which the "service fee" was purportedly
established.   89 Hawai#i at 367 & n.5, 973 P.2d at 742 & n.5.
Thus, the supreme court found, there was a "possibility that the
charge could be used for general revenue raising purposes, the
classic realm of taxation."     Id. at 367, 973 P.2d at 742.         In
contrast, the CVC fee and ICAC fee are deposited into special
funds, which are required by statute to be expended for limited
purposes; their use is not discretionary.          "Moneys received [in
the CVC special fund] shall be used for compensation payments,
operating expenses, salaries of positions as authorized by the


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legislature, and collection of fees."         HRS § 351-62.5(d)
(emphasis added).     Likewise, HRS § 846F-4(b) mandates that funds
in the ICAC special fund be used
            (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.

Because the use of the funds is controlled by a mandatory rather
than discretionary statute, the fees cannot be classified as
taxes.   See Medeiros, 89 Hawai#i at 367 & n.5, 973 P.2d at 742 &
n.5.
            Finally, Adcock complains that "[n]one of his offenses
are in any way related to internet crimes against children."               To
the extent that we read this complaint as an argument that the
statute violates his right to substantive due process because
there is no rational basis for the imposition of the ICAC fee, we
disagree.    As we previously recited, it is well established that
"every enactment of the legislature is presumptively
constitutional, and a party challenging the statute has the
burden of showing unconstitutionality beyond a reasonable doubt.
The infraction should be plain, clear, manifest, and
unmistakable."     Calaycay, 145 Hawai#i at 197, 449 P.3d at 1195
(quoting Gaylord, 78 Hawai#i at 137, 890 P.2d at 1177).            "Under
rational basis review, a statute must 'rationally further a
legitimate state interest.'       A state interest is 'legitimate' if
it involves the public health, safety, or welfare."            State v.
Mallan, 86 Hawai#i 440, 451–52, 950 P.2d 178, 189–90 (1998)
(quoting Estate of Coates v. Pac. Engineering, 71 Haw. 358,
363–64, 791 P.2d 1257, 1260 (1990)).         The legislature determined
that assessing this charge serves the public safety and welfare
because it serves a punitive purpose against those who are


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convicted, and it furthers the legitimate state interest of
pursuing those who commit internet crimes against children by
providing funding for the program as described in HRS chapter
846F.   The Circuit Court recognized this, and, citing State v.
Peraza, 467 S.W.3d 508 (Tex. 2015), concluded that the funds were
expended for "legitimate criminal justice purposes."    There is
sufficient justification for the fees to survive rational basis
scrutiny.
            Adcock has not met his burden of showing that the
statutes under which he was ordered to pay fees as part of his
sentence are unconstitutional.    "[W]hile a sentence may be
authorized by a constitutionally valid statute, its imposition
may be reviewed for plain and manifest abuse of discretion."
State v. Martin, 103 Hawai#i 68, 74, 79 P.3d 686, 692 (App. 2003)
(quoting Gaylord, 78 Hawai#i at 144, 890 P.2d at 1184).
"Generally, to constitute an abuse[,] it must appear that the
court clearly exceeded the bounds of reason or disregarded rules
or principles of law or practice to the substantial detriment of
a party litigant."    Id.
            Adcock complains that the sentencing court has
"unfettered discretion in fixing" the fees.    To the contrary, HRS
§ 706-605(6) requires the imposition of the CVC fee on every
person convicted of a criminal offense, but HRS § 351-62.6
provides that the court shall waive the fee if the court finds
that the defendant is unable to pay.    Similarly, the ICAC fee is
contingent on the defendant's ability to pay.    Adcock's counsel
twice admitted that the objection was not based on Adcock being
unable to pay.    Accordingly, the Circuit Court did not abuse its
discretion in imposing the mandatory fines against Adcock.




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                           V.   CONCLUSION
          Based on the error in instructing the jury on merger,
we vacate the May 31, 2019 Judgment; Conviction and Sentence;
Notice of Entry and remand this matter to the Circuit Court for
resentencing, or in the alternative, a new trial.


On the briefs:

Benjamin E. Lowenthal,                       /s/ Katherine G. Leonard
Deputy Public Defender,
for Defendant-Appellant.
                                             /s/ Derrick H. M. Chan
Richard B. Rost,
Deputy Prosecuting Attorney,
County of Maui,                              /s/ Keith K. Hiraoka
for Plaintiff-Appellee.




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