Nexus to Loss Necessary Before Imposing Restitution
State v. Domingo (ICA September 11, 2009)
Background. Domingo was indicted for one count of Accidents Involving Death or Serious Bodily Injury (HRS § 291C-12); specifically, that Domingo failed to stop his car at the scene of the accident and breached his duty to remain on the scene pursuant to HRS § 291C-14. Domingo and Tomlin were driving in separate cars on the H-1 freeway. Tomlin crossed his line and sideswiped Domingo, which caused both cars to crash into the guard rail. Tomlin's car flipped on its side and Tomlin died. Domingo's car flipped onto its roof. Domingo got out of the car, walked to the side of the freeway, and took off into the bushes. Approximately 30 minutes later, he returned to the scene.
Domingo pleaded no contest and moved for a deferred acceptance of no contest plea, which was not opposed. The circuit court sentenced Domingo to five years probation and denied the motion for DANC. The circuit court ordered restitution in the amount of $13,225.94 in restitution, which included funeral expenses, a gravestone, and ambulance fee, as requested by Mrs. Tomlin.
Criminal Conduct must have Nexus to Victim's Losses in Order to Impose Restitution. The ICA agreed with Domingo that the circuit court erred in imposing restitution. "The court shall order the defendant to make restitution for reasonable and verified losses suffered by the victim . . . as a result of the defendant's offense[.]" HRS § 706-646(2). According to the ICA, the restitution statute plainly states "a defendant cannot be ordered to pay restitution unless he [or she] caused a victim's losses." In this case, the criminal conduct was not linked to the amount requested by Mrs. Tomlin. Criminal liability for HRS § 291C-12(a) "does not require proof that the driver of a vehicle caused injury to or death of a person, but only that the accident the driver was involved in resulted in injury to or death of any person." State v. Chen, 77 Hawai'i 329, 226, 884 P.2d 392, 399 (1994). The ICA concluded that there was "no evidence in the record that Domingo's criminal misconduct caused Tomlin's injuries or death. . . . No nexus between Domingo's conduct and Tomlin's injuries and death has been demonstrated." The ICA reversed the restitution order.
The "Criminal Misconduct" v. just Plain 'Ol Conduct: a Hypothetical. In this case, the ICA held that there was no nexus between Domingo's conduct and the "victim's" injuries and death. Here, it was apparent that Tomlin caused the collision with Domingo, which resulted in his own death. But what if Domingo had caused the accident? That would provide a nexus between Domingo's conduct and the loss (the death). So would it mean that he would have to pay restitution? Perhaps not. The defendant must make restitution only for losses suffered "as a result of the defendant's offense[.]" HRS § 706-646(2). What is an "offense"? The statute never elaborates on the term so now it seems that for this question, the statute isn't so plain. One hint may lie in the ICA's opinion today. The ICA described a necessary nexus between Domingo's "criminal misconduct" and the loss. This could imply that an "offense" under HRS § 706-646(2) is the criminal conduct, i.e. the conduct element of the offense itself.
And if that is so, then even if Domingo did cause the accident resulting in Tomlin's death, he would still not have to pay restitution. He was charged with fleeing the scene of an accident in which a person died, The criminal conduct in that particular crime is the flight and dereliction of duty to stay and render aid, not the attendant circumstance of the death. But this distinction needn't be made here. Perhaps later.