CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS CAAP-13-0000086; CR. NO. 12-1-0636
Phyllis J. Hironaka for petitioner
Stephen K. Tsushima for respondent
RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.
Petitioner/Defendant-Appellant June-June Mas Abdon appeals from the Intermediate Court of Appeals' (ICA) judgment on appeal entered pursuant to its memorandum opinion. The ICA's judgment vacated the Circuit Court of the First Circuit's (circuit court) January 16, 2013 judgment of conviction and sentence for sexual assault in the first degree based on the circuit court's failure to instruct on the lesser included offense of sexual assault in the third degree.
Abdon does not challenge the ICA's determination regarding the lesser included offense instruction, but asserts that the ICA gravely erred in rejecting his claim that his post-verdict motion for judgment of acquittal should have been granted by the circuit court. In the post-verdict motion, Abdon contended that the State failed to adduce evidence at trial of the date his prosecution commenced, and accordingly, the State did not prove beyond a reasonable doubt "[f]acts establishing that the offense was committed within" the statute of limitations as required by Hawai'i Revised Statutes (HRS) §§ 701-114(1)(e) and 701-108. Abdon's claim is unavailing because the date the prosecution commenced-i.e., the date of the indictment-was subject to judicial notice as requested by the State. Accordingly, the circuit court did not err in denying his motion for judgment of acquittal. We additionally hold that the circuit court erred in failing to instruct the jury that the State had to prove beyond a reasonable doubt facts establishing the timeliness of the prosecution. However, this error was harmless beyond a reasonable doubt. Accordingly, we affirm the ICA's judgment on appeal.
A. Circuit Court Proceedings
On April 24, 2012, the State of Hawai'i filed an indictment charging Abdon with sexual assault in the first degree-a class A felony-in violation of HRS § 707-730(1)(b).According to the indictment, "[o]n or about the 1st day of June, 1997, to and including the 30th day of June, 1997, " Abdon "did knowingly subject to sexual penetration, [the complaining witness (CW)], who was less than fourteen years old, by inserting his penis into her genital opening." The indictment stated that CW was born on April 26, 1988; turned eighteen on April 26, 2006; and is still alive, citing to HRS § 701-108(6)(c), which provides that the statute of limitations for felony sexual offenses is tolled while the victim is under eighteen. The foreperson of the grand jury and the deputy prosecuting attorney signed the indictment and indicated the date the indictment was found: "A True Bill found this day: April 24, 2012." The indictment also was signed by the clerk of the circuit court with the filing date of April 24, 2012.
At trial,  CW testified that her date of birth was April 26, 1988. CW identified Abdon as her uncle, who was living with her and her family in Hawai'i after moving from the Philippines. In June 1997, when CW was nine, CW testified that Abdon sexually assaulted her in a bedroom the two shared by touching her vagina with his hand and forcing his penis into her vagina. CW did not report the incident until 2010, when she was attending college. Abdon testified at trial and denied having ever touched CW inappropriately.
Following the evidence, the court and the parties discussed jury instructions. Abdon requested an instruction on the lesser included offense of third degree sexual assault.  The court rejected Abdon's request over the objection of both Abdon and the State, concluding that there was no rational basis upon which a reasonable juror could acquit Abdon of the charged offense but convict him of sexual assault in the third degree.
The jury found Abdon guilty of sexual assault in the first degree, as charged.
At the close of the proceedings, the circuit court ordered counsel to return later in the afternoon to discuss "a matter having to do with [the] case." It appears from the pleadings that at this post-trial meeting, the court instructed the defense to file a motion for judgment of acquittal based on the statute of limitations.
Accordingly, Abdon filed a post-verdict motion for judgment of acquittal contending that the State failed to prove beyond a reasonable doubt, as required by HRS § 701-114,  that the six-year statute of limitations for class A felonies enumerated in HRS § 701-108(2)(b) was tolled. According to the indictment, the offense was committed in June 1997. Thus, absent tolling, the statute of limitations expired in July 2003, long before the commencement of the prosecution on April 24, 2012. However, tolling is provided for in HRS § 701-108(6)(c) where the victim is alive and under eighteen. Abdon argued before the circuit court that in the instant case, the State failed to meet the mandate of HRS §§ 701-114(1)(e), 701-108(2)(b), and 701-108(6)(c) to prove beyond a reasonable doubt that the prosecution commenced within six years of the date CW turned eighteen years old. Abdon acknowledged that the State adduced evidence "sufficient to establish that CW turned 18 on April 26, 2006" and as such, the limitations period expired "on or about April 26, 2012"-two days after the indictment was found and filed. However, Abdon argued that the State failed to produce any evidence of when the prosecution commenced, that is, "when the indictment was 'found.'" Abdon stated that evidence "[f]or the commencement of prosecution was critical" because the trial began "almost six months after the expiration of the limitation[s] period."
The State filed a memorandum in opposition to Abdon's motion for judgment of acquittal, arguing that it did not have to produce evidence that the indictment was found before April 26, 2012 because it "is a legal fact that did not need to be adduced at trial or go before the jury." The State also argued that Abdon waived any statute of limitations defense to the third degree sexual assault charge by requesting an instruction on the lesser included offense, and accordingly, even if the court granted his motion for judgment of acquittal for sexual assault in the first degree, it must enter a conviction for third degree sexual assault. In the alternative, the State asked the circuit court to take judicial notice of the fact that the indictment was filed on April 24, 2012. The State maintained that it had furnished sufficient facts to allow the court to take judicial notice of the date of the indictment and that when taken together with the trial testimony, judicial notice that the date of the indictment was April 24, 2012 "is sufficient to prove timeliness."
At the hearing on Abdon's motion, the court expressed uncertainty regarding the timeliness issue, but ultimately denied the motion. The court agreed with the State that evidence of the date of the indictment need not be adduced, noting specifically that in a typical case, where no tolling exception applies, the date of commencement of prosecution is not a jury issue. Because the circuit court ruled that the State was not required to provide evidence of ...