State v. Silver

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Electronically Filed
Supreme Court
SCWC-29060
02-FEB-2011
11:37 AM

IN THE SUPREME COURT OF THE STATE OF HAWAI#I

---o0o---

STATE OF HAWAI#I, Respondent/Plaintiff-Appellee,

vs.

BARRY SILVER, Petitioner/Defendant-Appellant.

NO. SCWC-29060

CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(ICA NO. 29060; CR. NO. 05-1-0282)

FEBRUARY 2, 2011

RECKTENWALD, C.J., NAKAYAMA, ACOBA, DUFFY, JJ., AND
CIRCUIT JUDGE DEL ROSARIO, ASSIGNED BY REASON OF VACANCY

OPINION OF THE COURT BY DUFFY, J.

Petitioner/Defendant-Appellant Barry Silver (Silver)

filed a timely application for a writ of certiorari

(Application), urging this court to review the Intermediate Court

of Appeals’ (ICA) July 15, 2010 judgment on appeal in support of

its June 30, 2010 memorandum opinion, which affirmed the Circuit

Court of the Second Circuit’s (circuit court) March 7, 2008

judgment finding Silver guilty of four counts of sexual assault
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in the third degree.1 We accepted the Application on

November 23, 2010.

Silver’s Application presents the following questions:
A. Did the Maui prosecutor mislead the grand jury and
withhold clearly exculpatory evidence which would have
negated four out of five counts in the indictment?

B. Did the trial court exclude critical evidence of a
prior inconsistent statement made by the complaining witness
to law enforcement officials in a sex assault case?

C. Did the trial court permit testimony by psychologist
Alexander Bivens that was tantamount to an opinion that the
complaining witness was telling the truth?

D. Did the State commit prosecutorial misconduct by
arguing sexual predator profiles and grooming techniques
without any support in the evidence?

E. Does touching the buttocks of a child during horseplay
or a massage constitute third degree sexual assault, and if
so, does the statute provide fair notice of that fact?

F. Did the trial court fail to conduct a timely hearing
regarding claims of a sleeping juror by waiting until after
the alternates were released and the verdict?

We hold that the ICA gravely erred by concluding that sufficient

evidence existed to support Silver’s conviction on Count 1.

Accordingly, we reverse the judgment of conviction on Count 1 for

insufficiency of the evidence. We leave the remainder of the

ICA’s opinion undisturbed.

I. BACKGROUND

This case arises from incidents on July 16-17, 2004, in

which Silver allegedly touched the penis and buttocks of Minor,

1
The Honorable Joseph E. Cardoza presided.

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who was eleven years old at the time, while Silver and Minor were

staying at the condominium home of Vickie Josefsberg (Vickie) and

Alan Josefsberg (Alan) (collectively, the Josefsbergs) in

Ka#anapali, Maui. On June 6, 2005, the grand jury indicted

Silver on five counts of sexual assault in the third degree in

violation of Hawai#i Revised Statutes (HRS) section 707-

732(1)(b).2 Counts 1, 3, and 5 alleged that Silver touched

Minor’s buttocks on three separate occasions, and Counts 2 and 4

alleged that Silver touched Minor’s penis on two separate

occasions.

A. Trial Proceedings

1. The State’s case

Silver’s jury trial began on January 8, 2007.

Respondent/Plaintiff-Appellee State of Hawai#i (State or

prosecution) called as witnesses, inter alia, Minor and Minor’s

father.

a. Minor’s testimony

2
At the time of the alleged offense, as it does now, HRS section
707-732(1)(b) stated:

A person commits the offense of sexual assault in the third
degree if . . . [t]he person knowingly subjects to sexual
contact another person who is less than fourteen years old
or causes such a person to have sexual contact with the
person[.]

HRS § 707-732(1)(b) (Supp. 2004).

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Minor testified that he visited Maui with his father in

the summer of 2004, when he was eleven years old. While in Maui,

they stayed at the Josefsbergs’ condominium; Minor’s father was a

former student of Alan’s. At that time, Minor met Silver who was

also staying with the Josefsbergs.

Minor testified that he slept on the living room

couch’s foldout bed along with his father. At the beginning of

the trip, Silver slept in another room on a cot, but eventually

moved to the same bed as Minor and his father because he said the

cot was bad for his back. Minor slept between his father and

Silver.

Minor testified that while he was sleeping on the couch

on the night in question, Silver woke him up by rubbing him and

whispering to him. Silver asked Minor to scoot closer, and Minor

complied by scooting a few inches closer. Silver told Minor,

“shh, don’t wake anybody up.” According to Minor, Silver rubbed

his arm and then began rubbing his back. At this point, Minor

scooted away and fell back asleep for a short time.

Minor testified that he was again woken up by Silver,

who was rubbing him on his arm and lower back. According to

Minor, as Silver was rubbing down Minor’s back, he “brushed over

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[Minor’s] butt really slow.” Minor then scooted closer to his

father and fell back asleep for a couple of minutes.

Minor testified that he woke up again because Silver

was rubbing his arm. At this point, Minor was lying on his back

and Silver “brushed over [Minor’s] crotch and [his] penis[.]”

Minor testified that because Silver brushed over his penis and

buttocks slowly, it indicated to Minor that Silver’s actions were

intentional. Minor testified that, in total, Silver brushed over

his penis once and his buttocks twice. Thereafter, Minor scooted

very close to his father and fell asleep.

Minor also testified that, “a day or two before” the

alleged touching on the foldout couch occurred, Silver had also

touched him inappropriately in the swimming pool. While in the

pool, Silver and Minor’s father would throw Minor back and forth

between them. According to Minor, Silver would, “hold under my

butt to like hoist me up and throw me, but I don’t remember like

him grabbing me or anything.” When asked what part of his body

Silver touched, Minor responded, “[k]ind of like my crotch to

throw me or under my butt to throw me.”

b. Minor’s father’s testimony

Minor’s father testified that he saw “a lot of physical

contact in the pool[]” between Silver and Minor. He elaborated

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that he saw, “wrestling, kind of tossing around, splashing water

back and forth, kind of a lot of, you know, horseplay[.]”

According to Minor’s father, Silver would grab Minor and throw

him up in the air. Minor’s father testified that he would not

have known if Silver had his hands underneath Minor’s buttocks.

Further, he did not see any sexual contact between Silver and

Minor in the pool.

2. Silver’s motions for judgment of acquittal

Upon the close of the State’s case, Silver moved for

judgment of acquittal on each count pursuant to Rule 29 of the

Hawai#i Rules of Penal Procedure (HRPP).3 The circuit court

denied the motion, finding that, when viewed in the light most

favorable to the prosecution, evidence existed to support the

elements of each count.

The defense then rested its case without calling any

witnesses. At this point, Silver renewed his HRPP Rule 29 motion

3
HRPP Rule 29(a) states, in relevant part, that

[t]he court on motion of a defendant or of its own motion
shall order the entry of judgment of acquittal of one or
more offenses alleged in the charge after the evidence on
either side is closed if the evidence is insufficient to
sustain a conviction of such offense or offenses. If a
defendant’s motion for judgment of acquittal at the close of
the evidence offered by the prosecution is not granted, the
defendant may offer evidence without having reserved the
right.

HRPP Rule 29(a) (1977).

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for judgment of acquittal. The court initially denied the motion

as to all counts, however, after reviewing the testimony of

Minor, the court granted Silver’s motion as to Count 2, which

alleged sexual contact with Minor’s penis during the nighttime

massage.

The jury found Silver guilty of Count 1 and Counts 3-5.

B. Post-trial Proceedings

On January 29, 2007, Silver filed a motion for a new

trial. On March 27, 2008, the circuit court filed its “Findings

of Fact, Conclusions of Law, Order Denying Defendant’s Motion for

New Trial[.]”

On March 7, 2008, the circuit court filed its judgment

of conviction and sentence. Silver was sentenced to five years

imprisonment on each of the four counts, with the terms to be

served concurrently.

C. Appeal to the ICA

Silver filed his opening brief with the ICA on

August 27, 2008, arguing essentially the same points of error

that he raises in the present Application. The ICA rejected all

of Silver’s arguments and affirmed the judgment of the circuit

court. See generally Mem. Op. at 9-30.

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Silver filed his Application on October 13, 2010. The

State did not file a response.

II. STANDARDS OF REVIEW

A. Statutory Interpretation

“Questions of statutory interpretation are questions of

law reviewed de novo.” Gump v. Wal-Mart Stores, Inc., 93 Hawai#i

417, 420, 5 P.3d 407, 410 (2000).
In our review of questions of statutory interpretation, this
court follows certain well-established principles, as
follows:

First, the fundamental starting point for statutory
interpretation is the language of the statute itself.
Second, where the statutory language is plain and
unambiguous, our sole duty is to give effect to its
plain and obvious meaning. Third, implicit in the
task of statutory construction is our foremost
obligation to ascertain and give effect to the
intention of the legislature, which is to be obtained
primarily from the language contained in the statute
itself. Fourth, when there is doubt, doubleness of
meaning, or indistinctiveness or uncertainty of an
expression used in a statute, an ambiguity exists.
And fifth, in construing an ambiguous statute, the
meaning of the ambiguous words may be sought by
examining the context, with which the ambiguous words,
phrases, and sentences may be compared, in order to
ascertain their true meaning.

Awakuni v. Awana, 115 Hawai#i 126, 133, 165 P.3d 1027, 1034
(2007) (citation omitted).

Hawaii Gov’t Employees Ass’n, AFSCME Local 152, AFL-CIO v.

Lingle, 124 Hawai#i 197, 202, 239 P.3d 1, 6 (2010) (hereinafter

HGEA). In construing an ambiguous statute, this court may

consider “[t]he reason and spirit of the law, and the cause which

induced the legislature to enact it . . . to discover its true

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meaning.” HRS § 1-15(2) (2009). “Laws in pari materia, or upon

the same subject matter, shall be construed with reference to

each other. What is clear in one statute may be called upon in

aid to explain what is doubtful in another.” HRS § 1-16 (2009).

B. Sufficiency of the Evidence
We have long held that evidence adduced in the trial court
must be considered in the strongest light for the
prosecution when the appellate court passes on the legal
sufficiency of such evidence to support a conviction; the
same standard applies whether the case was before a judge or
a jury. 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” as to every material element of the
offense charged is credible evidence which is of sufficient
quality and probative value to enable [a person] of
reasonable caution to support a conclusion.

State v. Batson, 73 Haw. 236, 248-49, 831 P.2d 924, 931
(1992) (citations omitted).

State v. Matavale, 115 Hawai#i 149, 157-58, 166 P.3d 322, 330-31

(2007) (brackets in original).

III. DISCUSSION

A. The ICA Gravely Erred In Finding That Sufficient Evidence
Supported Silver’s Conviction On Count 1 Of The Indictment.

Silver was convicted of four counts of sexual assault

in the third degree in violation of HRS section 707-732(1)(b).

Count 1 was based on Silver’s alleged touching of Minor’s

buttocks in the pool, and Counts 3-5 were based on Silver’s

alleged touching of Minor’s penis, once, and buttocks, twice,

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during a subsequent nighttime massage. In his Application,

Silver appears to argue that there was insufficient evidence of

sexual assault in the third degree on each count in which Silver

was accused of touching Minor’s buttocks (Counts 1, 3, 5).

Alternatively, he contends that if HRS section 712-732(1)(b)

applies to the conduct alleged in this case, then the statute

fails to give notice of the type of conduct that is

impermissible.

At the time of the alleged offense, as it does now, HRS

section 707-732(1)(b) stated:
A person commits the offense of sexual assault in the third
degree if . . . [t]he person knowingly subjects to sexual
contact another person who is less than fourteen years old
or causes such a person to have sexual contact with the
person[.]

HRS § 707-732(1)(b) (Supp. 2004). “Sexual contact” is defined as
any touching, other than acts of “sexual penetration”, 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.

HRS § 707-700 (Supp. 2004). Neither “sexual parts”, nor

“intimate parts” are defined in HRS chapter 707.

In State v. Kalani, 108 Hawai#i 279, 118 P.3d 1222

(2005), the defendant was convicted of two counts of sexual

assault in the third degree in violation of HRS section 707-

732(1)(b) for twice kissing a nine-year old girl and, on both

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occasions, inserting his tongue in her mouth. Id. at 280-81, 118

P.3d at 1223-24. The defendant argued that the trial court erred

in concluding that, in the context of his case, the mouth and

tongue were “intimate parts” within the meaning of HRS section

707-700. Id. at 281, 118 P.3d at 1224.

In interpreting HRS section 707-700, we held that

“[b]ased on the plain language of [the statute], ‘sexual parts’

clearly refers to the sex organs.” Id. at 284, 118 P.3d 1227.

Further, “[b]oth the plain language of the statute and the

application of the maxim of ejusdem generis indicate that

‘intimate parts,’ as used in HRS § 707-700, refers to only those

parts of the body typically associated with sexual relations.”

Id. at 284-85, 118 P.3d at 1227-28.

In the present case, Silver does not dispute that the

penis is a “sexual part” as that phrase is used in HRS section

707-700. Id. at 284, 118 P.3d at 1227; see also HRS § 707-700

(Supp. 2004). Nor does Silver appear to challenge that

sufficient evidence exists in the record to support a conviction

on Count 4, in which Silver was charged with touching Minor’s

penis during the nighttime massage. See HRAP Rule 40.1(d)(4)

(2010) (“The application for a writ of certiorari . . . shall

contain . . . [a] brief argument with supporting authorities.”).

Silver does, however, argue that “nothing in the sex assault

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statutes suggests” that the Legislature considered the buttocks

to be associated with sexual relations and, thus, to be “intimate

parts” within the meaning of HRS section 707-700.

In Kalani, we determined that the plain language of

section 707-700 did not indicate whether the mouth and tongue

were “intimate parts” for purposes of the statute. Kalani, 108

Hawai#i at 285, 118 P.3d at 1228. Turning to the legislative

history of section 707-700, we stated as follows:
As originally 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[.]” See also 1972 Haw. Sess. L. Act
9, § 1 at 85. In December 1984, the Committee on Penal Code
Revision and Reform of the Judicial Council of the Hawai#i
Supreme Court [hereinafter, Committee on Penal Code
Revision] recommended, inter alia, that HRS § 707-700 be
amended to limit the definition of “sexual contact” to
offensive contact with specifically enumerated parts of the
body. The Committee on Penal Code Revision proposed
amending HRS § 707-700 to read, “‘[s]exual contact’ means
any offensive touching of the penis, testicles, mons
veneris, groin, inner thigh, buttock, or female breast of
another person’s body.” See Comm. on Penal Code Revision &
Reform of the Judicial Council of the Hawai#i Supreme Court,
A Comprehensive Review & Reformation of the Hawai#i Penal
Code (Submitted to the Thirteenth Legislature) 100 (1984).

The Committee on Penal Code Revision’s proposed amendment to
HRS § 707-700 was submitted to and considered by the
legislature. See H.B. 100, 13th Leg., Reg. Sess. (Haw.
1986); see also Sen. Stand. Comm. Rep. No. 569-86, in 1986
Senate Journal at 1037 (indicating that the senate committee
considered, inter alia, amending “Section 707-700, Hawai#i
Revised Statutes, by incorporating the [C]ommittee on
[P]enal [C]ode [R]evision’s definition of sexual contact”).
Ultimately, however, the legislature rejected the proposed
amendment. Instead, the legislature 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.” See 1986 Haw. Sess. L.
Act 314 § 48 at 615.

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Id. (brackets in original, footnote omitted).

We also read “sexual contact” in section 707-700 in

pari materia with the definition of “deviate sexual intercourse”4

and “sexual penetration”5 in the same section, and the definition

of “sexual conduct”6 under section 712-1210 to determine that

“the legislature associated the mouth and tongue with sexual

relations.” Id. at 286-87, 118 P.3d at 1229-30. Thus, the

interior of the mouth constituted an “intimate part” for purposes

of “sexual contact” as defined in section 707-700. Id. at 287,

118 P.3d at 1230.

4
“Deviate sexual intercourse” is defined as “any act of sexual
gratification between a person and an animal or a corpse, involving the sex
organs of one and the mouth, anus, or sex organs of the other.” HRS § 707-700
(1993).

5
At the time of the Kalani decision, “Sexual penetration” was
defined as:

(1) Vaginal intercourse, anal intercourse, fellatio, deviate
sexual intercourse, or any intrusion of any part of a
person’s body or of any object into the genital or anal
opening of another person’s body; it occurs upon any
penetration, however slight, but emission is not required;
or

(2) Cunnilingus or anilingus, whether or not actual
penetration has occurred.

HRS § 707-700 (Supp. 2004).

6
“Sexual conduct” is defined as:

acts of masturbation, homosexuality, lesbianism, bestiality,
sexual intercourse or physical contact with a person’s
clothed or unclothed genitals, pubic area, buttocks, or the
breast or breasts of a female for the purpose of sexual
stimulation, gratification, or perversion.

HRS § 712-1210 (Supp. 2002).

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Similarly, in the present case, the plain language of

HRS section 707-700 does not indicate whether the legislature

considered the buttocks to be a part of the body typically

associated with sexual relations. Id. at 284-85, 118 P.3d at

1227-28. However, the legislative history of section 707-700, as

well as an in pari materia reading of section 712-1210, supports

the conclusion that the legislature intended that the buttocks be

included as “intimate parts” as that term is used in the

definition of “sexual contact”. See HGEA, 124 Hawai#i at 202,

239 P.3d at 6, see also HRS § 1-15(2), id. § 1-16. In Kalani,

the defendant proposed a definition of sexual contact that was

limited to the “touching of the genitals, the pubic area, the

buttocks, and the female breasts.” 108 Hawai#i at 285, 118 P.3d

at 1228 (emphasis added). We rejected the defendant’s proposed

definition, stating that “the history of HRS § 707-700 clearly

indicates that the legislature refused to adopt the narrow

interpretation of ‘sexual contact’ advanced by Kalani[.]” Id. at

285-86, 118 P.3d at 1228-29. Thus, we do not believe that the

legislature intended an even narrower interpretation of “sexual

contact” that would exclude the buttocks.

Further, the definition of “sexual conduct” under HRS

section 712-1210 includes “physical contact with a person’s

clothed or unclothed . . . buttocks . . . for the purposes of

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sexual stimulation, gratification, or perversion.” HRS § 712-

1210 (Supp. 2002) (emphasis added). Thus, an in pari materia

reading of section 712-1210 supports the conclusion that the

legislature intended the buttocks to be an “intimate part” for

purposes of “sexual contact” as that phrase is defined in section

707-700.7 See Kalani, 108 Hawai#i at 286, 118 P.3d at 1229

(“This court has noted that the definitions of ‘sexual contact’

under HRS § 707-700 and ‘sexual conduct’ under HRS § 712-1210

were both ‘adopted expressly for use in penal statutes regulating

conduct with sexual connotations’ and construed the two statutes

with reference to one another.” (quoting State v. Rodgers, 68

Haw. 438, 442, 718 P.2d 275, 277 (1986), superseded by statute on

other grounds)).

However, as the ICA in the present case cautioned, a

“body part which might be intimate in one context, might not be

in another [context].” Mem. Op. at 28 (quoting People v. Rivera,

525 N.Y.S. 2d 118, 119 (N.Y. Sup. Ct. 1988) (brackets in

original)). The ICA provided that,
with respect to the buttocks, it is not uncommon for youth
team coaches to give their players a congratulatory pat on

7
Silver argues that because HRS section 712-1210 specifically
includes the buttocks in its definition of “sexual conduct”, “[t]he absence of
that word in HRS Section 707-700 suggests it was purposely omitted.” We
disagree. As we noted in Kalani, “the history of HRS § 707-700 clearly
indicates that the legislature refused to adopt [a] narrow interpretation of
‘sexual contact’” such as the one advocated by Silver. Kalani, 108 Hawai#i at
285-86, 118 P.3d at 1228-29.

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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. In 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. In these contexts,
the child’s buttocks would not be a body part “typically
associated with sexual relations.”

Id. (quoting Kalani, 108 Hawai#i at 284-85, 118 P.3d at 1227-28)

(footnote omitted).

We agree with the ICA that, when viewed in context,

there was sufficient evidence in the record “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.” Id. Minor testified that while Silver slept next

to him, Silver woke up Minor at least three different times in

the night by rubbing and whispering to him. According to Minor,

Silver told him to be quiet so as not to wake anyone up. Minor

further testified that, during the course of the massages, Silver

slowly brushed over his buttocks twice and his penis once.

In this context, Minor’s testimony “is credible

evidence which is of sufficient quality and probative value to

enable a person of reasonable caution to support a conclusion”

that Silver knowingly subjected Minor, who was eleven years old

at the time, to sexual contact. See Matavale, 115 Hawai#i at

157-58, 166 P.3d at 330-31 (brackets omitted); see also HRS §

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707-732(1)(b) (Supp. 2004). Accordingly, substantial evidence

exists in the record to support Silver’s conviction of sexual

assault in the third degree as charged in Counts 3-5.8 Id.

We disagree, however, with the ICA’s conclusion that

sufficient evidence existed to convict Silver on Count 1. Count

1 alleged that Silver touched Minor’s buttocks in the pool.

Minor testified that the pool incident occurred “a day or two

before” the massage. As to Silver’s conduct, Minor testified

that Silver and Minor’s father threw Minor back and forth between

them in the pool. According to Minor, Silver would “hold under

my butt to like hoist me up and throw me, but I don’t remember

like him grabbing me or anything.” When asked what part of his

body Silver touched, Minor responded, “[k]ind 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 between Minor and

Silver in the pool, which he characterized as “horseplay.”

However, he also testified that he did not see any sexual contact

between Silver and Minor, and that he would not have known if

Silver had his hands underneath Minor’s buttocks.

8
Based on Silver’s conduct underlying Counts 3-5, as detailed
above, we disagree with Silver’s contention that HRS section 707-732(b)(1)
failed to give notice of the conduct required in order to avoid its penalties.
The statute gives a “person of ordinary intelligence a reasonable opportunity
to know” that conduct such as Silver’s during the nighttime massage is
prohibited. See Kalani, 108 Hawai#i at 287, 118 P.3d at 1230 (quoting State
v. Richie, 88 Hawai#i 19, 31, 960 P.2d 1227, 1239 (1998)).

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The ICA concluded that,
[w]ith 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 for 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.

Mem. Op. at 29 (emphases added). The ICA concedes that the

evidence of what occurred in the pool is insufficient to convict

Silver of sexual assault in the third degree in Count 1.

However, the ICA concludes that sufficient evidence to support

Count 1 is provided by conduct that occurred at a later time, in

a different setting, and which was the basis for three separate

counts of sexual assault because these events provided context

for Silver’s conduct in the pool. The ICA expands the scope of

“context” too far.

As discussed above, sufficient evidence exists that

Silver’s contact with Minor’s buttocks and penis, as alleged in

Counts 3-5, constituted touching of Minor’s “intimate parts”

given the context in which it occurred: the massage occurred late

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at night; Silver woke up Minor repeatedly by rubbing and

whispering to him; Silver told Minor to be quiet so as not to

wake anyone; and Silver slowly brushed over Minor’s buttocks and

penis while giving the massage. That context does not exist with

the pool incident, which occurred “a day or two before” the

massage, and involved “horseplay” in the pool in which Minor’s

father participated. The subsequent massage does not turn

Silver’s conduct in the pool, which the ICA agrees is otherwise

not actionable, Mem. Op. at 29, into a criminal offense.

Although evidence of subsequent conduct may, in some

circumstances, be probative of a fact of consequence such as the

defendant’s motive, opportunity, intent or plan, see Hawai#i

Rules of Evidence Rule 404(b); State v. Yoshida, 45 Haw. 50, 53-

54, 361 P.2d 1032, 1035 (1961) (holding that evidence of

defendant’s subsequent conduct was relevant to show motive,

intent, and plan), it is not in this case.

Though “horseplay” in a pool could potentially form the

basis for a sexual assault charge, the State did not adduce

substantial evidence to support Silver’s conviction in this case.

Matavale, 115 Hawai#i at 157-58, 166 P.3d at 330-31.

Accordingly, we hold that there was insufficient evidence to

support Silver’s conviction under Count 1.

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In State v. Kalaola, 124 Hawai#i 43, 237 P.3d 1109

(2010), we stated that
[t]he reversal of a conviction for insufficiency of the
evidence constitutes a determination by the appellate court
that the defendant should have been acquitted in the trial
court in the first instance because, “as a matter of law []
the jury could not properly have returned a verdict of
guilty.”

Id. at 56, 237 P.3d at 1122 (quoting State v. Bannister, 60 Haw.

658, 661, 594 P.2d 133, 135 (1979)). The Fifth Amendment to the

United States Constitution states that no person shall “be

subject for the same offence to be twice put in jeopardy of life

or limb[.]” U.S. Const. amend. V. Similarly, the Hawai#i

Constitution provides that no person “shall . . . be subject for

the same offense to be twice put in jeopardy[.]” Haw. Const.

art. I, § 10. We have held that “[t]he prohibition against

double jeopardy applies where the reversal is based on

insufficiency of the evidence[.]” Bannister, 60 Haw. at 660, 594

P.2d at 135; see also Burks v. United States, 437 U.S. 1, 11

(1978) (“The Double Jeopardy Clause forbids a second trial for

the purpose of affording the prosecution another opportunity to

supply evidence which it failed to muster in the first

proceeding.”).

We, therefore, reverse the judgment of conviction on

Count 1 for insufficiency of the evidence, and remand the case to

the circuit court with instructions to enter a judgment of

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acquittal on Count 1 and to modify Silver’s sentence accordingly.

Id. at 661, 594 P.2d at 135. We affirm the circuit court’s

judgment of conviction and sentence in all other respects.

Peter Van Name Esser /s/ Mark E. Recktenwald
and Myles S. Breiner
for petitioner/defendant- /s/ Paula A. Nakayama
appellant
/s/ Simeon R. Acoba, Jr.
Richard K. Minatoya,
Deputy Prosecuting /s/ James E. Duffy, Jr.
Attorney, County of
Maui, for respondent/ /s/ Dexter D. Del Rosario
plaintiff-appellee

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