NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
NO. 29060
IN THE INTERMEDIATE
OF THE STATE
STATE OF HAWAfI, Pl
VS.
BARRY SILVER, Defendant-Appellant
COURT OF APPEALS
oF HAWAI‘I
aintiff-Appellee,
LG 18 E»»=E‘§' G€i`%!`if` (HDZ
APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT
(CR. No.
MEMORANDUM
(By: Nakamura, Chief Judge,
05-1-0282(3))
OPINION
Foley, and Leonard, JJ.)
Defendant-Appellant Barry Silver (Silver) appeals from
the Judgment entered by the Circuit Court of the Second Circuit
(circuit court).F
charged Silver by indictment with
sexual assault,
§ 707-732(1)(1@) (supp. 2009).3/
Plaintiff-Appellee State of Hawaid
The complaining witness
(State)
five counts of third degree
in violation of Hawaii Revised Statutes (HRS)
(Minor)
F The Honorable Joseph E. Cardoza presided.
9 HRs § 707-732(1)(b) provides=
§ 707-732 Sexual assault in the third degree. (l)
A person
commits the offense of sexual assault in the third degree if:
(b) The person knowingly subjects to sexual contact
another person who is l
ess than fourteen years old or
causes such a person to have sexual contact with the
person[.]
HRs § 707~700 (supp. 2o09) de
as follows:
"Sexual contact" means
of "Sexual penetration", of t
fines the term "sexual contact"
any touching, other than acts
he sexual or other intimate
parts of a person not married to the actor, or of the sexual
or other intimate parts of the actor by the person, whether
directly or through the clothing or other material intended
to cover the sexual or other
After the time period of the
definition of "sexual penetration"
material to this appeal. See 2006
intimate parts.
alleged offenses, the
was amended in ways not
Haw. Sess. Laws Act 230, § 26
(continued...)
C!E"IM
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was eleven years old at the time of the alleged offenses and
Silver was forty-six years old. The indictment alleged that
"during or about the period of July 16, 2004, through July 17,
2004, inclusive," Silver did knowingly subject Minor, who was
less than fourteen years old, "to sexual contact or cause him to
have sexual contact" with Silver by: touching Minor's buttocks
(Count l); touching Minor's penis (Count 2); touching Minor's
buttocks (Count 3); touching Minor's penis (Count 4); and
touching Minor's buttocks (Count 5).
The charges against Silver arose out of a vacation trip
he took from Florida to HawaiHq where he stayed at a condominium
along with Minor and Minor's father, who were on vacation from
Washington. Silver and Minor's father had not previously met,
but they were former students of the owner of the condominium.
Prior to trial, the circuit court issued an order
granting Silver's motion for a bill of particulars.` The circuit
court incorporated the State's response to Silver's motion as an
exhibit to its order. The State's response clarified that Count
1 alleged "conduct that occurred at the pool"; Counts 2 and 3
alleged "conduct that occurred during the first 'massage'
perpetrated by [Silver] on [Minor]"; and Counts 4 and 5 alleged
"conduct that occurred during the second 'massage' perpetrated by
[Silver] on [Minor]." b
After the close of the evidence, the circuit court
granted Silver's motion for judgment of acquittal as to Count 2.
The jury subsequently returned verdicts of guilty as to the
remaining counts--Counts l, 3, 4, and 5. The circuit court
sentenced Silver to concurrent terms of five years of
imprisonment on each of these counts.
On appeal, Silver asserts that the circuit court erred
by: 1) refusing to dismiss the indictment because the prosecutor
failed to tender "clearly exculpatory" evidence of Minor's
3/ ( . . .continued)
3.1'. 1013-14.
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inconsistent statements to the grand jury; 2) refusing to admit,
on the ground of lack of foundation, extrinsic evidence proffered
by the defense of Minor's prior inconsistent statement to an
investigator; 3) allowing expert testimony regarding the behavior
of child sex abuse victims, because such testimony was tantamount
to an opinion that Minor was telling the truth; 4) finding that
the prosecutor's statements during closing argument did not
constitute prosecutorial misconduct; 5) failing to conduct a
timely hearing on Silver's allegations that a juror was sleeping
during trial and denying Silver's motion for a new trial based on
that allegation; and 6) determining that there was sufficient
evidence to support the guilty verdicts. Silver further contends
that if it is determined that there was sufficient evidence to
support his convictions, then HRS § 707-700, the statute which
defines "sexual contact," is void for vagueness.
For the reasons discussed below, we affirm Silver's
convictions.
BACKGROUND
I. Trial Evidence
The following is based on the evidence presented at
trial, Minor's father and Minor traveled from Seattle to Maui
for a vacation. During their trip, Minor's father and Minor
stayed with Alan and vickie Josefsberg. Alan Josefsberg was the
former teacher of Minor's father. When Minor's father and Minor
arrived at Alan Josefsberg's condominium, they met Silver.
Silver, also a former student of Alan Josefsberg, happened to be
visiting Maui and staying with the Josefsbergs during the same
time as Minor's father and Minor. Neither Minor's father nor
Minor knew Silver prior to this meeting. However, Minor's
father, Minor, and Silver spent significant time together on the
trip.
At one point, Minor's father, Minor, and Silver were
swimming together at the condominium pool. Minor referred to an
incident at the pool when asked at trial whether there were times
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he felt Silver had touched him inappropriately. Minor testified
as follows:
[Minor]: And then we were like messing around in the
pool, and then [Minor's father and Silver] were kind of like
throwing me back and forth. And my dad would pick me up
like from like right here (indicating) and kind of like toss
me. And then [Silver] would kind of like hold under my butt
to like hoist me up and throw me, but I don't remember like
him grabbing me or anything.
[Prosecutor]: And what part of your body did he
touch?
[Minor]: Kind of like my crotch to throw me or under
my butt to throw me.
Minor's father testified that he "saw a lot of physical
contact in the pool" between Silver and Minor, but did not see
any "[a]ctual sexual contact," However, Minor's father "wouldn't
have known" if Silver "ever had his hands underneath Minor's
behind" because Minor's father "had trouble seeing a lot of times
because of just the water . . . splashing up."
A few days into the trip, the sleeping-arrangements in
the condominium changed. Originally, Minor's father and Minor
were sharing a pull-out bed that unfolded from a couch, while
Silver was sleeping on a cot in a separate room. However, Silver
moved from sleeping on the cot to sleeping on an extension of the
couch adjacent to the pull-out bed. Silver claimed that he had a
"bad back" and that "his back was getting even worse because of
the lousy cot he was sleeping on." Minor's father slept on the
far end of the pull-out bed, and Minor slept on the side of the
bed adjacent to the couch extension where Silver was now
sleeping, in between Silver and Minor's father.
According to Minor, one night when Silver was sleeping
next to him on the couch extension, Silver woke him up around
midnight. Silver was rubbing Minor's back, whispered in Minor's
ear to "scoot closer," and told Minor, "shh, don't wake anybody
up," Minor described the subsequent events as follows:
[Prosecutor]: . . . Okay. And you said you felt him
touching you. Where did you feel his hand first?
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[Minor]: Well, first it kind of was like on my arm
and stuff, and I think I was on my stomach first. And then
[Silver] kind of like moved to my back, and he was rubbing
my back and stuff, and I wasn't really thinking anything
that much. And then the -- I was like, all right. It's
okay. I'm going to go to bed now.
And 1 kind of scooted away and kind of like fell back
asleep for a couple minutes. And then I woke up, and he was
like rubbing me again. And this time I was kind of like on
my side and so --
[Minor]i Yeah, [Silver's] on the sofa the whole time,
and he was rubbing me. And then he rubbed like my arms and
stuff, I was -- kind of moved to my stomach again, and he
rubbed like down on my lower back,
[Minor]: Kind of like then 1 shifted all the way onto
my stomach, and then [Silver] kind of like rubbed and kind
of went lower onto my back, and then kind of like brushed
over my butt really slow. And then he kind of like stopped
and like rubbed somewhere else again like up here
(indicating).
And then I was like okay, well, I'm just going to go
to bed now. And then I kind of like went back and then like
scooted closer to my dad a little bit and kind of fell back
asleep for a couple minutes. And then I woke up again with
him rubbing me, but this time I was on my back, and he‘s
kind of like rubbing my arm and stuff.
And then he 1 had kind of like shifted or something
and then somehow he brushed over my crotch and my penis and
came up, and then he was like rubbing -- I was like, all
right, look, I want to go to bed now, and scooted all the
way close to my dad, and now I kind of just like fell back
asleep. And then I don't remember anything happening after
that. `
Minor stated that the first time Silver was rubbing
him, Silver did not touch Minor's buttocks or penis. Minor
testified that after he dozed off and was reawakened, Silver was
"kind of rubbing my back and then goes lower and rubs over my
butt but doesnlt like massage it, just brushes over it."F 'Minor
explained that while Silver was massaging or "rubbing" Minor's
back and arms} "it seemed like [Silver] just kind of brushed over
y Minor stated that he used the term "massage" to mean "like using,
like, your fingers, like, to push harder and soft." Minor testified that he
had received back massages from his parents before, but, unlike Silver, his
parents did not "brush over any of [his] private areas."
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the other areas." In response to the prosecutor's question over
whether Silver's brushing over the other areas seemed on purpose
or accidental, Minor responded:
Well, for the first time it seemed like he might have
done it on accident, but towards the second and third time
that he did it, it seemed like he did it more on purpose
because it's kind of just like weird because it -- he did it
again. Because each time he did it, I kind of jerked away a
little because I didn't know if he was accidentally doing it
because it was really dark.
When asked to elaborate on his testimony that Silver
had touched his "penis area," Minor stated:
[Minor]: . . . I remember during the back rub he
rubbed over my penis. He didn't rub it. He just kind of
brushed it.
[Prosecutor]: Okay. So not rubbing with his finger?
[Minor]: Yeah, just kind of slowly brushed over it.
[Prosecutor]: Did that seem accidental? Inadvertent?
On purpose? Could you describe it?
[Minor]: Well, like the speed of him brushing over
it, it seemed like he did it on purpose.
[Prosecutor]: How fast was it?
[Minor]: It was just kind of like -- just kind of
like this (indicating). lt wasn't quick like that. lt was
just like slow.
Minor testified that he thought that the slow brushing happened
"once on my penis and twice on the butt . . . ."
Minor's father was sleeping next to Minor when the
alleged massages occurred, but Minor did not tell his father
until the following morning. Upon hearing Minor's accusation,
Minor's father talked to vickie and Alan Josefsberg. Minor's
father also called the police and filed a complaint. Minor's
father and Minor moved to a hotel, and Minor's father changed
their flight arrangements and left Maui early.
II. Procedural History
Prior to trial, Silver moved to dismiss the indictment
on the ground that the prosecutor failed to present "clearly
exculpatory evidence" to the grand jury. The circuit court
denied the motion.
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When the State rested after its case in chief at trial,
Silver moved for judgment of acquittal on all five counts, which
the court denied. Silver then rested, electing not to call any
witnesses, and renewed his motion for judgment of acquittal. The
circuit court, after reviewing the trial transcripts, granted
Silver's motion as to Count 2.
On January 29, 2007, Silver filed a Motion for New
Trial. On March 27, 2008, the circuit court entered findings of
fact, conclusions of law, and an order denying Silver's Motion
for New Trial.
STANDARDS OF REVIEW
A. Motion to Dismiss Indictment
"A trial court's ruling on a motion to dismiss an
indictment is reviewed for an abuse of discretion." State v.
Mendonca, 68 Haw. 280, 283, 711 P.2d 731, 734 (1985). "Dismissal
of an indictment is required only in flagrant cases in which
the grand jury has been overreached or deceived in some
significant way, as where perjured testimony has knowingly been
presented . . . ." lQ; (internal quotation marks and citations
omitted).
B. Evidentiary Rulings
With regard to evidentiary rulings,
different standards of review must be applied to trial court
decisions regarding the admissibility of evidence, depending
on the requirements of the particular rule of evidence at
issue. When application of a particular evidentiary rule
can yield only one correct result, the proper standard for
appellate review is the right/wrong standard. However, the
traditional abuse of discretion standard should be applied
in the case of those rules of evidence that require a
“judgment call" on the part of the trial court.
Kealoha v. CountV of Hawaii, 74 Haw. 308, 319-20, 844 P.2d 670,
676 (1993) .
A trial court's decision on whether to admit opinion
testimony is subject to review for abuse of discretion. State v.
TOyOmura, 80 HaWafi 8, 23-24, 904 P.2d 893, 908-09 (l995).
"Generally, to constitute an abuse of discretion, it must appear
that the trial court clearly exceeded the bounds of reason or
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disregarded rules or principles of law or practice to the
substantial detriment of a party litigant. Id. at 24, 904 P.2d
at 909 (internal quotation marks, citation, and brackets
omitted).
C. Prosecutorial Misconduct
Allegations of prosecutorial misconduct are reviewed
under the harmless beyond a reasonable doubt standard, which
requires an examination of the record and a determination of
whether there is a reasonable possibility that the error
complained of might have contributed to the conviction.
Prosecutorial misconduct warrants a new trial or the
setting aside of a guilty verdict only where the actions of
the prosecutor have caused prejudice to the defendant's
right to a fair trial, In order to determine whether the
alleged prosecutorial misconduct reached the level of
reversible érror, we consider the nature of the alleged
misconduct, the promptness or lack of a curative
instruction, and the strength or weakness of the evidence
against defendant.
State v. Mars, 116 Hawafi l25, 133, 170 P.3d 861, 869 (App.
2007) (citations and internal quotation marks omitted)
v D. New Trial
"As a general matter, the granting or denial of a
motion for new trial is within the sound discretion of the trial
court and will not be disturbed absent a clear abuse of
discretion. The same principle is applied in the context of a
motion for new trial premised on juror misconduct. State v.
Yamada, 108 HawaiH.474, 478, 122 P.3d 254, 258 (2005).
E. Sufficiency of the Evidence
In reviewing the sufficiency of the evidence, we view
the evidence in the light most favorable to the prosecution.
The test on appeal is not whether guilt is established
beyond a reasonable doubt, but whether there was substantial
evidence to support the conclusion of the trier of fact.
"Substantial evidence" is credible evidence which is of
sufficient quality and probative value to enable a person of
reasonable caution to support a conclusion. . . . It is the
province of the jury, not the appellate courts, to determine
the credibility of witnesses and the weight of the evidence.
State v. Smith, 106 Hawafi 365, 372, 105 P.3d 242, 249 (App.
2004) (citations, internal quotation marks, and ellipsis points
omitted; block quote format changed).
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F. Constitutionality of Statute
"We answer questions of constitutional law by
exercising our own independent judgment based on the facts of the
case. . . . Thus, we review questions of constitutional law
under the 'right/wrong' standard." State v. Fields, 115 Hawafi
503, 511, 168 P.3d 955, 963 (2007) (citation omitted and ellipsis
in original). The Hawafi Supreme Court has "long held that: (1)
legislative enactments are presumptively constitutional; (2) a
party challenging a statutory scheme has the burden of showing
unconstitutionality beyond a reasonable doubt; and (3) the
constitutional defect must be clear, manifest, and unmistakable."
convention c'cr. Auth. v. Anzai, 78 Hawai‘i 157, 162, 390 P.2d
1197, 1202 (1995) (internal quotation marks, citation, and
brackets omitted).
DISCUSSION
l .
Silver argues that the circuit court abused its
discretion in denying his motion to dismiss the indictment
(Motion to Dismiss). Silver's Motion to Dismiss alleged that the
prosecutor "failed and/or omitted to present clearly exculpatory
evidence to the Grand Jury." The evidence specifically
identified and attached as exhibits to the Motion to Dismiss was
the affidavits of Alan Josefsberg and his wife, Vickie
Josefsberg. On appeal, Silver argues that in addition to the
Josefsbergs' affidavits, the prosecutor should have presented
statements Minor made to his father, Broward County School Board
officials in Florida, and the King County police in Washington to
the grand jury.9
Silver argues that the inconsistencies in Minor's
statements constituted clearly exculpatory evidence that would
have negated guilt on four counts of the five-count indictment
and that if the statements had been provided to the grand jury,
i/ Silver was apparently a school teacher in Broward County, Florida at
the time of the charged offenses, and Minor was a resident of Washington.
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"it would probably have issued a no bill." We disagree with
Silver's contention that the circuit court abused its discretion
in denying his Motion to Dismiss.
A.
In State V. Bel1, 60 Haw. 24l, 243-44, 589 P.2d 5l7,
519 (1978), the Hawafi Supreme Court quoted the following
passage from United States v. Clandra, 414 U.S. 338, 343-44
(1974), regarding the nature of grand jury proceedings:
A grand jury proceeding is not an adversary hearing in
which the guilt or innocence of the accused is adjudicated.
Rather, it is an Ex parte investigation to determine whether
a crime has been committed and whether criminal proceedings
should be instituted against any person,
The Hawafi Supreme Court stated that "[t]o require the
prosecutor to present any and all information which may have a
tendency to exculpate the accused would, in our view, confer upon
grand jury proceedings the adversary nature which is more
properly reserved for the actual trial phase of prosecution."
§§ll, 60 Haw. at 244, 589 P.2d at 5l9.
The supreme court held that "the prosecution is
required only to present to the grand jury evidence which is
clearly exculpatory in nature." ld4 at 242, 589 P.2d at 518.
The supreme court gave the following examples of clearly
exculpatory evidence:
Clearly exculpatory evidence may be manifested, for example,
by a witness whose testimony is not directly contradicted by
any other witness and who maintains that the accused was
nowhere near the scene of the crime when it occurred, Also,
where it has become apparent to the prosecution, for -
example, that a sole eyewitness testifying as to the
perpetration of the crime has perjured himself before the
grand jury, that perjury must be revealed to the grand jury.
lQ; at 245, 589 P.2d at 520.
A court should dismiss an indictment only when the
prosecution failed to present evidence that "would have negated
guilt or undermined the authority of the grand jury to act at
all . . . ." lQ4 at 247, 589 P.2d at 521 (quoting United States
v. Mandel, 415 F. Supp. l033, 1041-42 (D. Md. l976)). "The
prosecution is not required to produce before the grand jury all
evidence which may tend to undermine the credibility of the
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witnesses presented." ld. at 253-54, 589 P.2d at 525. ln Bell,
the supreme court held that the victim's identification of
someone other than the defendant at a lineup only reflected upon~
the victim's credibility in general and did not constitute
clearly exculpatory evidence, lQ4 at 253, 589 P.2d at 525. The
supreme court cited with approval cases from other jurisdictions
holding that the prosecution was not required to present evidence
of a witness's inconsistent statements to the grand jury, because
such evidence bore on the witness's credibility and could be
explored by both sides at trial, lQ4 at 254-55, 589 P.2d at 525.
B.
At the outset, we note that Silver only preserved his
argument with respect to the State's failure to present the
Josefsbergs' affidavits to the grand jury. Those were the only
statements that Silver specifically identified and attached as
exhibits to his Motion to Dismiss and that he argued to the
circuit court at the hearing on his Motion to Dismiss. ln later
denying Silver's motion for a new trial, the circuit court ruled
that because Silver did not challenge the State's failure to
present Minor's statement to Broward County officials in his
Motion to Dismiss, Silver waived any claim related to that
statement under Hawaii Rules of Penal Procedure (HRPP) Rule 12.W
9 HRPP Rule 12 (1997) provided, in relevant part:
(b) Pretrial motions. Any defense, objection, or request
which is capable of determination without the trial of the general
issue may be raised before trial by motion. Motions may be
written or oral at the discretion of the judge. The following
must be raised prior to trials
(1) defenses and objections based on defects in the
institution of the prosecution;
(2) defenses and objections based on defects in the charge
(other than that it fails to show jurisdiction in the court or to
charge an offense which objections shall be noticed by the court
at any time during the pendency of the proceedings);
(continued...)
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We agree and also conclude that Silver similarly waived any
claims related to Minor's statements to his father and the King
County police by not raising them in his Motion to Dismiss. §g§
HRPP Rule 12; see also State v. HOqlund, 71 Haw. 147, 150, 785
P.2d 1311, 1313 (1990) ("Generally, the failure to properly raise
an issue at the trial level precludes a party from raising that
issue on appeal.").W
C.
Minor's father talked separately with vickie and Alan
Josefsberg after Minor disclosed to Minor's father what Silver
had done. The affidavit of vickie Josefsberg stated in relevant
part:
[Minor's father] approached me and stated that [Minor], his
11-year old son, told him that Barry Silver had behaved
inappropriately with him. l spoke with [Minor's father] &
[Minor] and all [Minor] said to me was that, "[Silver] kept
rubbing my back."
The affidavit of Alan Josefsberg stated in relevant part:-
[Minor] claimed that [Silver] rubbed his back and that his
hand crossed over his buttocks and thigh.i [Minor] said that
he told [Silver] to stop, but [Silver] continued rubbing his
W(...continued)
(f) Effect of failure to raise defenses or objections.
Failure by a party to raise defenses or objections or to make
requests which must be made prior to trial, within the time set by
the court pursuant to section (c), or within any extension thereof
made by the court, shall constitute waiver thereof, but the court
for cause shown may grant relief from the waiver.
(Emphases added.)
9 We are not persuaded by Silver's argument that he did not waive the
right to challenge the State's failure to provide the grand jury with Minor's
statements to his father, Broward County officials, and the King County police
because those statements were included as exhibits to Silver's motion for bill
of particulars; which was filed nine months before his Motion to Dismiss.
Silver did not specifically raise these statements as bases for his Motion to
Dismiss. Thus, the circuit court was not informed that Silver was relying on
these statements to support his Motion to Dismiss. The mere fact that these
statements were made available to the circuit court in connection with a
different motion was not adequate to preserve Silver's right to rely on the
statements to attack the circuit court's denial of his Motion to Dismiss on
appeal.
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back, l asked [Minor] if [Silver] touched any other
inappropriate area and [Minor] said, "No!“
We conclude that the circuit court did not abuse its
discretion in concluding that the Josefsbergs' affidavits were
"not clearly exculpatory, and the Prosecutor was not under an
obligation to present them to the Grand Jury." The Josefsbergs
did not purport to be eyewitnesses to the alleged incidents of
sexual abuse. The affidavit of vickie Josefsberg does not
indicate what questions, if any, she posed to Minor. Neither
affidavit details the nature and extent of the affiant's
questioning of Minor or whether Minor displayed any reluctance to
speak to or discuss matters with the affiant. While the
Josefsbergs' affidavits reflect upon Minor's credibility in
general, the circuit court did not abuse its discretion in
concluding that the affidavits did not constitute clearly
exculpatory evidence that the prosecution was required to present
to the grand jury. §§§ Bell, 60 Haw. at 253-56, 589 P.2d at 525-
26.
Moreover, even if we were to consider the other
statements Silver claims that the State should have presented to
the grand jury, we would conclude that these statements did not
constitute clearly exculpatory evidence. Minor's prior
statements to his father, Broward County officials, and the King
County police, if presented to the grand jury, would not have
clearly negated Silver's guilt or undermined the authority of the
grand jury to act. ln these prior statements, Minor did not
detail all of the incidents of inappropriate touching he
testified to in the grand jury. However, these prior statements
all contained allegations by Minor that Silver had touched him
inappropriately. Minor did not recant his allegations of sexual
abuse. Although these prior statements could have served to
impeach Minor's credibility, the grand jury need not be advised
of all matters bearing upon a witness's credibility. §e§ id4 at
253-54, 589 P.2d at 525; State V. PulaWa, 62 Haw. 209, 215, 614
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P.2d 373, 377 (1980). As such, the State was not required to
present these prior statements to the grand jury.F
II.
Silver contends that the circuit court abused its
discretion in refusing to admit a transcript of an interview
between Minor and a Broward County School Board investigator in
which Minor purportedly made a prior inconsistent statement.
Silver argues that he laid the proper foundation for the
admission of the transcript under Hawaii Rules of Evidence (HRE)
Rule 613(b) (1993)W and HRE Rule 802.1 (1993).W We conclude
that Silver did not lay an adequate foundation for the admission
y Based upon our analysis, we reject Silver's claim that his trial
counsel provided ineffective assistance for failing to argue all of Minor's
prior statements in support of the Motion to Dismiss.
y HRE Rule 613(b) provides, in relevant part:
(b) Extrinsic evidence of prior inconsistent statement of
witness. Extrinsic evidence of a prior inconsistent statement by
a witness is not admissible unless, on direct or cross-
examination, (1) the circumstances of the statement have been
brought to the attention of the witness, and (2) the witness has
been asked whether the witness made the statement.
y HRE Rule 802.1 provides, in relevant part:
The following statements previously made by witnesses who
testify at the trial or hearing are not excluded by the hearsay
rules
(1) lnconsistent statement. The declarant is subject to
cross-examination concerning the subject matter of the
dec1arant's statement, the statement is inconsistent
with the dec1arant's testimony, the statement is
offered in compliance with rule 613(b), and the
statement was:
,(A) Given under oath subject to the penalty of
perjury at a trial, hearing, or other
proceeding, or in a deposition; or
(B) Reduced to writing and signed or otherwise
adopted or approved by the declarant; or
(C) Recorded in substantially verbatim fashion by
stenographic, mechanical, e1ectrical, or other
means contemporaneously with the making of the
statement[.]
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of the transcript, and thus the cirucit court did not abuse its
discretion in refuing to admit the transcript.
A.
The issue here involves.Silver's cross-examination of
Minor during trial. In summary, Silver attempted to impeach
Minor by questioning him about a prior inconsistent statement
Minor purportedly made under oath during a recorded phone call
interview with a Broward County School Board investigator, James
Wolischiager (Wolischiager), where Minor allegedly told
Wolischiager that Silver did not touch his penis. After Minor
testified he did not remember whether he made this statement,
Silver attempted to introduce extrinsic evidence of this
statement in the form of a transcript of the interview between
Minor and Wolischiager. The circuit court refused to admit the
transcript because an adequate foundation had not been 1aid.
While Silver frames the issue as whether the foundational
requirements of HRE Rule 613(b) and HRE Rule 802.1 were met, we
view the issue more simply as whether a sufficient foundation was
laid to establish the authenticity of the interview transcript.
On cross-examination by defense counsel, Minor
remembered that he got a call from the Broward County School
Board special investigation unit. Minor could not recall the
name of investigator who interviewed him, nor could he remember
much of the content of the interview. Minor agreed with defense
counsel that Minor told the investigator that Silver started to
rub Minor's back, then moved to down to Minor's butt, and then
Minor moved. But when defense counsel asked, "you never said
anything about [Silver] touching your penis; correct?", Minor
replied, "l'm not sure. l don't remember if l told him or not."
Minor further testified, "l don't really remember the phone call.
l just remember from who it was."
After repeated questioning by defense counsel about
whether Minor remembered what was said during the phone call,
Minor was apparently given a copy of the transcript to refresh
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his recollection, and his testimony continued, in relevant part,
as follows:
}[Defense Counsel]: Okay. So you remember speaking to
the officer, but you don't remember what was said during the
phone call?
[Minor]: Correct.
[Defense Counsel]: Okay. Te1l the ladies and
gentlemen of the jury what the conversation was during those
24 minutes that aren't reflected in the sworn statement that
you gave?
[Minor]: l don't remember what was said in the phone
call.
[Defense Counsel]: Okay. You don't remember, but
you're sure it wasn't them telling you what to say?
[Minor]: Yeah, l remember that l never had that
happen.
[Defense Counsel]: But then after the 24-minute
break, they started asking you questions under oath again.
Do you remember that?
[Minor]: No.
[Defense Counsel]: No, you don't. So you don't
recall them telling you that you're still sworn, and you
need to tell the truth?
[Minor]: No.
[Defense Counsel]: And you don't recall them asking
you did he touch your penis and you saying no?
[Minor]: No.
[Defense Counsel]: Do you recall questions that were
asked during the conversation about where Barry Silver
touched you allegedly?
[Minor]: No.
IDefense Counsel]: So you don't remember anything
about this sworn statement that you gave, but you do
remember giving it?
[Minor]: Yeah.
At this point, defense counsel approached the bench and
informed the circuit court he planned to move a transcript of the
interview into evidence. The State objected, arguing in relevant
part:
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[Prosecutor]: 1 object; its hearsay. Number one, its
hearsay. Number two, improper foundation. Number three,
they can't prove it up through a piece of paper. They have
to prove it up through a witness. They have to bring Mr.
Wolischiager here and have Mr. Wolischiager testify.
The circuit court sustained the State's objection,
explaining:
[Court]: [Minor] does not remember the phone call.
On more than one occasion, he said he didn't remember the
phone call. He remembered speaking to someone, but he
didn't remember the phone call or what was said during the
phone call.
. . 1 don't think 1 have a foundation here on the
record. Unless there's an agreement of the parties, 1 don't
think 1 have a foundation that would allow me to receive
this statement into evidence. So l'm not going to do it at
this point.
[Court]: 1 think the current foundation is lacking.
1 mean, you can try to supplement it. 1 don't have a
problem with that. But at the present time what l‘m dealing
with is a witness who really does not -- has not expressed
any real recollection of any of this and this would be
coming in --
[Defense counsel]: As a prior sworn inconsistent
statement.
[Court]: Maybe. But for that matter, given the
current foundation, we could be talking about any statement.
He doesn't really recall it. There are other ways of
getting it in, but given the current foundation or lack of
it, 1 can't receive it.
So I'm going to deny the request. That does not mean
it won't ever come in, but given the current foundation, 1
can't see -- 1 can't receive it.
Defense counsel made no subsequent attempt to lay more foundation
or enter the transcript into evidence.
B.
Based on our review of the record, we conclude that at
the time defense counsel attempted to introduce the transcript of
the Broward County interview into evidence, there was
insufficient foundation laid to authenticate the transcript.
HRE Rule 901 (1993) provides in relevant part:
Rule 901 Requirement of authentication or
identification. (a) General provision. The requirement of
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authentication or identification as a condition precedent to
admissibility is satisfied by evidence sufficient to support
a finding that the matter in question is what its proponent
claims. '
As stated by Professor Addison M. Bowman:
The authentication requirement of rule 901 applies to
all forms of real and demonstrative evidence and to
testimony about telephone conversations and other verbal
exchanges not conducted face to face. The general thrust of
the rule is to require extrinsic evidence of the item in
question.
The rule 901 foundation is "evidence sufficient to
support a finding that the matter in question is what its
proponent claims." The "evidence sufficient" language .
identifies authentication as a matter of conditional
relevancy under rule 104(b), and effects the requirement of
extrinsic evidence of authenticity.
Addison M. Bowman, Hawaii Rules of Evidence Manual, § 901-1 and
§ 901-1[2] (2008-09 ed.).
The transcript Silver sought to introduce purports to
be a transcription of a recorded interview. lt is not a self-
authenticating document under HRE Rule 902 (1993 & Supp. 2009).
Regardless of Silver's efforts to satisfy the requirements of HRE
Rule 613(b) or HRE Rule 802.1(1), Silver failed to lay a
sufficient foundation to authenticate the transcript in question.
He failed to present "sufficient to support a finding that the
matter in question is what its proponent claims." HRE Rule
901(a). "Transcripts, like other evidence, must be properly
authenticated before they can be admitted." United States v.
Devous, 764 F.2d l349, 1354-55 (10th Cir. l985); see also §;a§§
V. JOSeph, 77 HaWai@ 235, 239, 883 P.2d 657, 661 (App. 1994)
("Simple logic dictates that the party wishing to introduce an
item in evidence must present proper proof of its authenticity
and identification. 1n other words, the proponent of the
evidence must prove that the item is what the proponent claims it
is." (Citations omitted.)).
Here, Minor did not recall the substance of the phone
conversation and his testimony did not establish that the
purported transcript of the phone conversation accurately
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reflected the phone conversation. As the circuit court properly
ruled[ Minor's testimony did not authenticate the transcript and
did not establish a proper foundation for its admission.
Therefore, the circuit court did not err in declining to admit
the transcript in evidence.W/
' III.
Silver argues that the circuit court erred in admitting
the testimony of Dr. Alexander Jay Bivens, Ph.D. (Dr. Bivens), a
clinical psychologist who specializes in the treatment of
adolescents. Dr. Bivens testified about the dynamics of sexual
abuse and the reaction of children who have been molested. His
testimony included that children often do not immediately report
the sexual abuse and underreport the extent of the abuse. Silver
contends that Dr. Bivens's testimony at trial was improperly
admitted because it was tantamout to an opinion that Minor was
telling the truth. we disagree.
Dr. Bivens's testimony was confined to the behavior of
child sexual abuse victims in general, the type of testimony
which the HawaiH.Supreme Court concluded was admissible in §;at§
v. Batangan, 71 Haw. 552, 557-58, 799 P.2d 48, 51-52 (1990). Dr.
Bivens's testimony was based on psychological studies. He
testified that he had never met, seen, interviewed, or evaluated
Minor and indicated that he was not familiar with the details of
Minor's case. Dr. Bivens's testimony did not include a specific
personal opinion of whether Minor was truthful or believable.
A.
ln Batangan, the HawaiH_Supreme Court recognized that
"sexual abuse of children is a particularly mysterious
H/ 1n his points of error, Silver asserts that to the extent the circuit
court's ruling was correct, his trial counsel was ineffective for failing to
provide the necessary foundation. Silver, however, presents no argument in
support of this point of error, and, accordingly, this point of error is
deemed waived. §§§ Hawaii Rules of Appellate Procedure (HRAP) Rule 28(b)(7)
("Points not argued may be deemed waived."). Moreover, Silver does not direct
us to evidence in the record that would permit us to determine whether trial
counsel had the ability to establish the necessary foundation by other means.
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phenomenon, and the common experience of the jury may represent a
less than adequate foundation for assessing the credibility of a
young child who complains of sexual abuse."
799 P.2d at 51 (citations and internal quotation marks
557,
omitted).
Batangan, 71 Haw. at
The court went on to hold:
[W]hile expert testimony explaining "seemingly bizarre"
behavior of child sex abuse victims is helpful to the jury
and should be admitted,
conclusory opinions that abuse did
occur and that the child victim's report of abuse is
truthful and believable is of no assistance to the jury, and
therefore,
lQ; at 558, 799 P.2d at
pertinent consideration
assist the jury without
ln Ma;§, this
passage from a decision
should not be admitted.
52. The court stated that "[t]he
is whether the expert testimony will
1d.
court quoted with approval the following
unduly prejudicing the defendant."
of the Georgia Court of Appeals:
[T]here is absolutely nothing wrong with expert opinion
testimony that bolster's [sic] the credibility of the
indicted allegations of sexual abuse, e.g., the victim's
physical examination showed injury consistent with sexual
abuse,
consistent with sexual abuse.
or the victim's psychological evaluation was
Establishing the credibility
of the indicted acts of sexual abuse is what the State's
case is all about and is the purpose for such expert
testimony in the first place; the fact that such testimony
may also indirectly,
though necessarily, involve the child's
credibility does not render it inadmissible.
What is forbidden is expert opinion testimony that
"directly addresses the credibility of the victim," i.e.,
"I
believe the victim; 1 think the victim is telling the
truth," or expert opinion testimony that implicitly goes to
the ultimate issue to be decided by the jury, when such
issue is not beyond the "ken" of the average juror, i.e.,
"ln my opinion, the victim was sexually abused." Although
the distinction may seem fine to a layman, there is a world
of legal difference between expert testimony that "in my
opinion, the victim's psychological exam was consistent with
sexual abuse," and expert testimony that "in my opinion, the
victim was sexually abused."
ln the first situation, the
expert leaves the ultimate issue/conclusion for the jury to
decide; in the second, the weight of the expert is put
behind a factual conclusion which invades the province of
the jury by providing a direct answer to the ultimate issue:
was the victim sexually abused?
Mars, 116 HawaiH.at 140, 170 P.3d at 876 (brackets and "[sic]"
in original)
Ct. App. 2000)).
(quoting Odom v. State,
531 S.E.2d 207, 208-09 (Ga.
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B.
Dr. Bivens's testimony was relevant to assisting the
jury to understand the reaction and behavior of children to
sexual abuse in general terms. He did not express any personal
opinion about whether Minor's report of sexual abuse was
truthful. A1though Dr. Bivens's testimony may have assisted the
jury in evaluating Minor's credibility, it did not constitute an
impermissible personal opinion that Minor's report of abuse was
truthful. §§§ lQ4 at 140-41, 170 P.3d at 876-77.
_ IV.
Silver argues that the prosecutor engaged in misconduct
during closing argument by arguing matters not supported by the
evidence, specifically: 1) grooming techniques of sexual
predators, and 2) presenting a PowerPoint slide which stated that
Minor "[n]ever changed his account of events." We conclude that
Silver is not entitled to any relief based on these claims.
A.
Silver argues that the prosecutor‘s closing argument
and PowerPoint slides improperly argued that Silver had engaged
in "grooming" Minor to submit to sexual abuse, even though the
circuit court had excluded expert testimony regarding grooming
because of lack of a factual basis to support such testimony,
Although it excluded expert testimony on grooming, the circuit
court permitted the State to argue facts and reasonable
inferences from the evidence.
[Prosecutor]: Your Honor, just one more thing. To be
clear, though. Anything that makes common sense or
something that's within the realm of the lay witness, 1 can
argue regardless of whether an expert talks about it;
correct?
[Court]: You can argue the facts and reasonable
inferences therefrom. ‘
As HawaiH.courts have recognized,
[d]uring closing arguments, a prosecutor is permitted to
draw reasonable inferences from the evidence and wide
latitude is allowed in discussing the evidence. lt is also
within the bounds of legitimate argument for prosecutors to
State, discuss, and comment on the evidence as well as to
draw all reasonable inferences from the evidence. 1n other
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words, closing argument affords the prosecution (as well as
the defense) the opportunity to persuade the jury that its
theory of the case is valid, based upon the evidence adduced
and all reasonable inferences that can be drawn therefrom.
Mars, 116 HawaFi at 142, 170 P.3d at 878 (brackets omitted;
block quote formated changed) (quoting State v. Rogan, 91 HawaiH
405, 412-13, 984 P.2d 1231, 1238-39 (1999)).
During closing argument, the prosecutor argued that
Silver's conduct was consistent with his gradually testing the
limits with Minor to see how far Silver could go. The prosecutor
argued that Silver was getting "green lights" and felt he could
keep going because, for example, "nobody said anything" about
Silver's touching Minor in the pool. The prosecutor also argued
that Silver planned the abuse, selected Minor because Silver did
not think Minor would tell, and waited for an opportunity when
Minor was tired and would be vulnerable. The circuit court
sustained several objections made by Silver to the prosecutor‘s
arguments.
ln denying Silver's motion for a new trial, the circuit
court made a finding of fact, which stated:
12. No portion of the Deputy Prosecutor's closing
argument or rebuttal argument constituted "misconduct." The
Court sustained four objections to portions of [the] State's
closing and rebuttal arguments due to the way the arguments
were phrased, but those arguments did not amount to an
attempt by the Deputy Prosecutor to persuade the court or
jury by use of deceptive or reprehensible methods.
The circuit court also found:
20. The State did not refer to inadmissible evidence
during closing or argument. The State did not elicit
prohibited testimony from Dr. Bivens and did not argue
theories of "grooming" when discussing Defendant's conduct
in the terms of "getting all these green lights" which
drew the first of the Defense objections in closing
argument. The Deputy Prosecutor's argument "Since the
defendant was getting all these green lights, he felt he
could keep going. How far can 1 go? Well, you know, nobody
said anything about touching in the pool. Guess 1 can go
further. 1 thought, move next to [Minor], nobody said a
thing. 1 can keep going. Nighttime, [Minor] wore the
pajamas, just like 1 asked. Guess 1 can keep going." This
argument included facts in evidence during trial, but
improperly phrased these as Defendant's actual thoughts,
which were inferences, but not reasonable inferences, to
draw from the facts presented. The objection was sustained
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due to the way this argument was phrased, not because it
argued precluded "theories of grooming."
We agree with the circuit court's assessment. Although
Dr. Bivens's expert testimony regarding grooming was excluded,
this ruling did not prohibit the State from arguing the evidence
and reasonable inferences from the evidence. Based on the
evidence presented, it was permissible for the prosecutor to
argue that Silver had targeted Minor, because Minor appeared
vulnerable, and that Silver had engaged in a series of steps to
see how far he could go with Minor.
1n analyzing allegations of prosecutorial misconduct,
we consider "(1) the nature of the conduct; (2) the promptness of
a curative instruction; and (3) the strength or weakness of the
evidence against the defendant." State v. Maluia, 107 Hawafi
20, 24, 108 P.3d 974, 978 (2005) (block quote format and citation
omitted).` Here, the nature of the prosecutor‘s arguments
complained of were not deceptive or reprehensible. The arguments
were objectionable because of the way they were phrased, but they
were based on evidence admitted at trial. The circuit court
sustained Silver's objections to the challenged arguments and
promptly instructed the jury to disregard them. The alleged
misconduct relating to "grooming" did not affect Silver's
substantial rights. v
B.
we also reject Silver's contention that the
prosecution's PowerPoint slide which stated that Minor "[n]ever
changed his account of events" and referred to people Minor
"[t]old" constituted misconduct that requires Silver's
convictions to be vacated. Silver did not object to this slide
when it was displayed. During Silver's closing argument, Silver
attempted to rebut this slide by arguing that the jury did not
hear evidence of Minor's inconsistent statements because the
prosecution did not introduce Minor's statements. The
prosecution objected to Silver's argument.
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At a bench conference, the circuit court advised the
parties that both the prosecution's slide and Silver's attempt to
rebut the slide by suggesting that the prosecution was "hiding
the ball" were improper. The circuit court, however, permitted
Silver to rebut the prosecution's contention that Minor "never
changed his account of events" by arguing that there was no
evidence to support the prosecution's claim. We conclude that
the circuit court's ruling was sufficient to dissipate any
prejudice from the prosecution's slide and thus the prosecution's
use of the slide did not affect Silver's substantial rights.
V.
Silver argues that the circuit court abused its
discretion by failing to conduct a timely hearing on the sleeping
juror allegation. `We disagree.
4 A.
After the circuit court completed its reading of the
jury instructions to the jury, the circuit court asked, "1'm
about to excuse the alternates [sic] jurors. Anything before 1
do so?" Silver's counsel responded, "1'l1 note that the juror up
in the top row . . . 1 think is our last juror has been sleeping
almost the entire trial. 1 would . . . ask that he be excused
and that we move the alternate into his place." The juror was
identified as Juror Number 12.
The prosecutor responded, "[Juror Number 12 has] been
paying attention when 1've been speaking to the jury. 1 saw him
paying attention when 1 was speaking to the jury." The circuit
court noted, "1 make it a practice to observe the jurors. The
juror in seat number 12, 1 have not seen sleeping through the
trial." The circuit court denied Silver's request to replace
Juror Number 12 with an alternate. The jury began deliberating
on January 17, 2007, and returned its guilty verdicts on January
18, 2007,
On November 6, 2007, the circuit court conducted al
hearing on Silver's Motion for New Trial. Silver called three
witnesses. David Sereno, one of Silver's trial counsel,
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testified that he saw Juror Number 12 sleeping. Elizabeth
Silver, Silver's sister-in-law, testified that she saw two jurors
sleeping during the trial. Silver testified that he saw Juror
Number 12 sleeping "during various state witnesses' testimony[.]"
The circuit court orally granted Silver's request to summon the
jurors for questioning.
On January 17, 2008, the circuit court questioned the
twelve jurors and three alternate jurors. All twelve jurors and
three alternate jurors testified that they did not doze off or
fall asleep during the trial and that they did not notice anyone
else on the jury appear to doze off or fall asleep during the
trial. The circuit court made findings of fact that stated,
"[t]here was no credible evidence that any juror or alternate
juror was sleeping or dozing off during portions of the trial[,]"
and that "Juror Number 12 did not fall asleep during the trial."
0 B.
When alleging juror misconduct,
[t]he defendant must first make a prima facie showing of a
deprivation that could substantially prejudice his or her
right to a fair trial by an impartial jury. We also
suggested that the defendant should first present some
specific, substantial evidence showing a juror was possibly
biased. Once the defendant has satisfied this burden, the
trial court then determines whether the nature of the
alleged deprivation rises to the level of being
substantially prejudicial. 1f the trial court determines
that the alleged deprivation is substantially prejudicial,
the trial court then becomes duty bound to further
investigate the totality of circumstances surrounding the
alleged deprivation to determine its impact on jury
impartiality.
State V. Yamada, 108 HaWai@ 474, 479, 122 P.3d 254, 259 (2005)
(citation, internal quotation marks, and emphases in original
omitted). Silver does not cite to any case law which imposes a
specific time limit upon the trial court to hold a hearing on
allegations of juror misconduct. Silver waited until the end of
trial to raise the allegation that a juror had been sleeping
"almost the entire trial." Silver also stipulated to a
continuance of the hearing on his Motion for New Trial and then
asked for additional delay after new counsel was retained to
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represent him. The circuit court held hearings to investigate
Silver's sleeping juror allegation and found that there was no
credible evidence that any juror or alternate juror, including
Juror Number 12, had been sleeping during the trial. We will not
disturb the circuit court's finding on appeal. We conclude that
the circuit court did not abuse its discretion in resolving
Silver's sleeping juror allegation.
VI.
Silver argues that the State failed to introduce
sufficient evidence to support his convictions for third degree
sexual assault and, in the alternative, that HRS § 707-700 is
void for vagueness. Among other things, Silver notes that HRS
§ 707-700 defines "sexual contact" as "any touching . . . of the
sexual or other intimate parts of a person," and argues that
buttocks are not "intimate parts" under this definition.
Silver was charged with third degree sexual assault in
violation of HRS § 707-732(1)(b), which prohibits a person from
"knowingly subject[ing] to sexual contact another person who is
less than fourteen years old." The term "sexual contact," in
turn, is defined by HRS § 707-700 to mean
any touching, other than acts of "sexual penetration", gf
the sexual or other intimate parts of a person not married
to the actor, or of the sexual or other intimate parts of
the actor by the person, whether directly or through the
clothing or other material intended to cover the sexual or
other intimate parts.
(Emphases added.)
¢A.
The HawaiH.Supreme Court construed the definition of
"sexual contact" in State v, Kalani, 108 HawaFi 279, 118 P.3d
1222 (2005). The defendant Kalani was charged by indictment with
two counts of sexual assault for twice kissing a nine-year-old
complaining witness (CW) on the lips and placing his tongue in
her mouth. 1Q4 at 281, 118 P.3d at 1224. Kalani moved to
dismiss the indictment on the ground of lack of sufficient
evidence to support the charges. 1Q; Kalani argued that his
alleged conduct did not constitute "sexual contact" as defined in
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HRS § 707-700 (1993).iW 1Q; The circuit court denied Kalani's
motion to dismiss. 1d4
The circuit court acknowledged that the statute did not
indicate what body parts are to be considered as "sexual or other
intimate parts" within the statutory definition of "sexual
contact." lQ4 The circuit court concluded that "intimacy, with
respect to parts of the body, must be viewed within the context
in which the contact takes place. ln other words, a body part
that might be intimate in one context might not be intimate in
another." 1Q; The circuit court stated although the mouth and
tongue may not constitute "intimate parts" in all circumstances
or contexts, they did constitute "intimate parts" in the context
of Kalani's alleged conduct. 1Q; at 281-82, 118 P.3d at 1224-25.
On appeal, the Hawafi Supreme Court concluded that as
used in the HRS § 707-700 definition of "sexual contact," the
term "'sexual parts' clearly refers to the sex organs" and the
term "'intimate parts' . . . refers to only those parts of the
body typically associated with sexual relations." 1Q4 at 284-85,
118 P.3d at 1227-28. Based on this construction, the Hawafi
Supreme Court held that Kalani's conduct constituted "sexual
contact," and it therefore upheld the circuit court's denial of
Kalani's motion to dismiss and affirmed Kalani's convictions.
;Q; at 287, 118 P.3d at 1230. The supreme court also rejected
Kalani's claim that the statutory definition of "sexual contact"
was void for vagueness, holding that "Kalani fails to establish
that a person of ordinary intelligence would not know that
ly The definition of "sexual contact" construed by the Supreme Court in
Kalani provided as follows:
"Sexual contact" means any touching of the sexual or other
intimate parts of a person not married to the actor, or of the
sexual or other intimate parts of the actor by the person, whether
directly or through the clothing or other material intended to
cover the sexual or other intimate parts.
See Kalani, 108 Hawafi at 281 n.2, 118 P.3d at 1224 n.2,
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Kalani's conduct in the instant case constituted sexual contact."
lQ4 at 288, 118 P.3d at 1231.
B.
We conclude, like the circuit court in Kalani, that
whether a particular body part qualifies as an "intimate part"
within the statutory definition of "sexual contact" depends on
the context and circumstances of the case. "[A] body part which
might be intimate in one context, might not be intimate in
another [context]." People v. Rivera, 525 N.Y.S. 2d 118, 119
(N.Y. Sup. Ct. 1988).
For example, with respect to the buttocks, it is not
uncommon for youth team coaches to give their players a
congratulatory pat on the buttocks in recognition of a good play
or outstanding effort. Parents hugging or carrying a young child
may also place their hands on the child's buttocks. 1n these
situations, adults are knowingly touching the buttocks of another
person who is less than fourteen years old. But because of the
context, it would be unreasonable to regard the child's buttocks
as an "intimate part" for purposes of applying the sexual assault
statutes¢¥/ 1n these contexts, the child's buttocks would not be
a body part "typically associated with sexual relations." §§§
Kalani, 108 Hawai‘i at 284-85, 118 P.3d at 1227-28.
C.
When viewed in context, we conclude that there was
sufficient evidence to show that Silver's touching of Minor's
buttocks during the late night massages constituted the touching
of an "intimate part" of Minor's body. These touchings took
ly As noted in Kalani, when first enacted, HRS § 707-700 (Special
Pamphlet 1975) provided that "'[s]exual contact' means any touching of the
sexual or other intimate parts of a person not married to the actor, done with
the intent of gratifying the sexual desire of either party[.]" Kalani, 108
Hawafi at 285, 118 P.3d at 1128 (citation and quotation marks omitted;
brackets in original). 1n 1984, a penal code review committee recommended
"that HRS § 707-700 be amended to limit the definition of ‘sexual contact' to
offensive contact with specifically enumerated parts of the body." 1Q; The
Legislature did not accept the committee's recommendation and instead, in
1986, "expanded the definition of ‘sexual contact' by removing the requirement
that the proscribed conduct be done 'with the intent of gratifying the sexual
desire of either party.'" 1d4; see 1986 Haw. Sess. Laws Act 314 § 48 at 615.
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place in the context of Silver, a 46-year-old adult, sleeping
next to Minor, an eleven-year-old boy, waking Minor up late at
night, telling Minor to be quiet, and then giving Minor
unsolicited massages that included slowly "brushing" over Minor's
buttocks and penis.B/
With respect to the pool incident, if this were the
only charged sexual assault and we limited our consideration to
the evidence of Silver's conduct in the pool, we would conclude
that there was insufficient evidence to support his conviction on
that count. The touching of a child's buttocks during horseplay
in a pool normally would not constitute the touching of an
"intimate" body part, However, viewing the evidence of Silver's
conduct in the pool in the context of his subsequent conduct
during the late night massages, and considering all the evidence
presented in the light most favorable to the State, we conclude
that there was sufficient evidence that Silver's touching of
Minor's buttocks in the pool constituted the touching of an
"intimate" body part, Considering the evidence in the strongest
light for the State, we conclude that a rational jury could infer
;a direct connection between Silver's conduct in the pool and his
late night massages and that Silver's actions were all part of a
deliberate plan and concerted effort by him to subject Minor to
sexual contact.
We reject Silver's contention that Minor's testimony
was insufficient to support Silver's convictions. Minor's
credibility was for the jury to decide. Based on our review of
the record, we conclude that there was substantial evidence to
support the jury's finding that Silver had sexually assaulted
Minor as charged in Counts 1, 3, 4, and 5. We also reject
Silver's argument that the statutory definition of "sexual
~13/ Silver does not dispute that Minor's penis constituted a sexual or
intimate part under the statutory definition of "sexual contact." We reject
Silver's claim that the jury could not find that Silver touched Minor's
buttocks and penis during the late night massages based on Minor's testimony
that Silver slowly brushed over Minor's buttocks and penis.
29
NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
contact" is void for vagueness. As applied to Silver's conduct
in this case, the statutory definition of "sexual contact" was
not unconstitutionally vague. §§e Kalani, 108 Hawafi at 288,
118 P.3d at 1231; State V. Richie, 88 Hawai‘i 19, 31-32, 960 P.2d
1227, 1239-40 (1998).
CONCLUSlON
We affirm the March 7, 2008, Judgment of the circuit
court.
DATED= Hc>nolulu, Hawai‘i, June 30, 2010.
On the briefs: W
Peter van Name Esser Chief Judge
Myles S§ Breiner ___
Attorneys for Defendant-Appellant €4M£4¢%jz_
Richard K. Minatoya Associate Jude
Deputy Prosecuting Attorney
County of Maui
Attorney for Plaintiff-Appe1lee
30