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Electronically Filed
Supreme Court
SCWC-XX-XXXXXXX
20-APR-2020
08:19 AM
IN THE SUPREME COURT OF THE STATE OF HAWAI‘I
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________________________________________________________________
STATE OF HAWAI‘I, Respondent/Plaintiff-Appellee
vs.
ISRAEL VEGA MALAVE, Petitioner/Defendant-Appellant
________________________________________________________________
SCWC-XX-XXXXXXX
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-XX-XXXXXXX; 1FFC-XX-XXXXXXX)
APRIL 20, 2020
RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.
OPINION OF THE COURT BY RECKTENWALD, C.J.
I. INTRODUCTION
Israel Vega Malave was convicted in the Family Court
of the First Circuit on two counts of Sexual Assault in the
First Degree for sexually assaulting his pre-teen stepdaughter
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over a period of approximately two years. 1 This case requires us
to review two issues: the jurisdiction of the family court to
try Malave and the propriety of instructing the jury on a lesser
included offense.
The Intermediate Court of Appeals (ICA) rejected
Malave’s argument that the family court did not have
jurisdiction, and that it should have instructed the jury on the
lesser included offense of Sexual Assault in the Third Degree
(Sexual Assault 3). The ICA therefore affirmed the family
court’s judgment. Malave asks this court to address the
following two issues that he contends were incorrectly resolved
by the ICA:
1. Whether the ICA gravely erred in holding that
the family court had subject matter jurisdiction
pursuant to Hawaiʻi Revised Statutes (HRS) § 571-
14(a)(1); and
2. Whether the ICA gravely erred in finding that
there was no rational basis in the record to support
providing the jury instruction of the lesser included
offense of sexual assault in the third degree.
We conclude that the ICA did not err in affirming the
family court. Although the jury should have been instructed to
determine jurisdictional facts, the error was harmless beyond a
reasonable doubt because the uncontroverted evidence showed that
Malave had physical custody of CW.
1 The Honorable Shirley M. Kawamura presided.
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Moreover, the family court was not obligated to
instruct the jury on the lesser included offense of Sexual
Assault 3 because the record did not contain a rational basis to
acquit Malave of Sexual Assault 1 and convict him of Sexual
Assault 3. Accordingly, we affirm the family court’s judgment.
II. BACKGROUND
On February 22, 2017, Malave was indicted on six
counts in family court. 2 Counts 1-3 charged Malave with Sexual
Assault in the First Degree on the Complaining Witness (CW)
pursuant to Hawai‘i Revised Statutes (HRS) § 707-730(1)(b)
(2014):
COUNT 1: On or about September 30, 2011 to and including
September 19, 2013, in the City and County of Honolulu,
State of Hawai‘i, ISRAEL VEGA MALAVE, being the parent or
guardian or any other person having legal or physical
custody of [CW], did knowingly engage in sexual penetration
with [CW], who was less than fourteen years old, by
inserting his penis into her genital opening, thereby
committing the offense of Sexual Assault in the First
Degree, in violation of Section 707-730(1)(b) of the Hawai‘i
Revised Statutes.
COUNT 2: On or about September 30, 2011 to and including
September 19, 2013, in the City and County of Honolulu,
State of Hawai‘i, ISRAEL VEGA MALAVE, being the parent or
guardian or any other person having legal or physical
custody of [CW], did knowingly engage in sexual penetration
with [CW], who was less than fourteen years old, by
inserting his penis into her mouth, thereby committing the
offense of Sexual Assault in the First Degree, in violation
of Section 707-730(1)(b) of the Hawai‘i Revised Statutes.
COUNT 3: On or about September 30, 2011 to and including
September 19, 2013, in the City and County of Honolulu,
State of Hawai‘i, ISRAEL VEGA MALAVE, being the parent or
2 The indictment is captioned “IN THE FAMILY COURT OF THE FIRST CIRCUIT”
and has the family court case number FC-CR No. 1FFC-XX-XXXXXXX.
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guardian or any other person having legal or physical
custody of [CW], did knowingly engage in sexual penetration
with [CW], who was less than fourteen years old, by
inserting his finger into her genital opening, thereby
committing the offense of Sexual Assault in the First
Degree, in violation of Section 707-730(1)(b) of the Hawai‘i
Revised Statutes.
Counts 4-6 charged Malave with Sexual Assault in the
Third Degree pursuant to HRS § 707-732(1)(b)(2014):
COUNT 4: On or about September 30, 2008 to and including
September 19, 2013, in the City and County of Honolulu,
State of Hawai‘i, ISRAEL VEGA MALAVE, being the parent or
guardian or any other person having legal or physical
custody of [CW], who was not married to [CW], 3 and knew he
was not married to [CW], did knowingly subject to sexual
contact, [CW], a person who was less than fourteen years
old, by placing his hand on her breast thereby committing
the offense of Sexual Assault in the Third Degree, in
violation of Section 707-732(1)(b) of the Hawai‘i Revised
Statutes.
COUNT 5: On or about September 30, 2008 to and including
September 19, 2013, in the City and County of Honolulu,
State of Hawai‘i, ISRAEL VEGA MALAVE, being the parent or
guardian or any other person having legal or physical
custody of [CW], who was not married to [CW], and knew he
was not married to [CW], did knowingly subject to sexual
contact, [CW], a person who was less than fourteen years
old, by placing his hand on her buttock thereby committing
the offense of Sexual Assault in the Third Degree, in
violation of Section 707-732(1)(b) of the Hawai‘i Revised
Statutes.
COUNT 6: On or about September 30, 2008 to and including
September 19, 2013, in the City and County of Honolulu,
State of Hawai‘i, ISRAEL VEGA MALAVE, being the parent or
guardian or any other person having legal or physical
custody of [CW], who was not married to [CW], and knew he
was not married to [CW], did knowingly subject to sexual
contact, [CW], a person who was less than fourteen years
old or did cause CW to have sexual contact with him, by
placing her hand on his penis thereby committing the
offense of Sexual Assault in the Third Degree, in violation
3 In 2016, the Hawai‘i Legislature amended the definition of “sexual
contact” to remove the exemption for married persons. Sess. L. 2016, ch. 231
§ 32 (effective Jul. 1, 2016). HRS § 1-3 indicates that this change would
only apply prospectively, so at the time of the alleged conduct, the
exemption for married persons applied.
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of Section 707-732(1)(b) of the Hawai‘i Revised Statutes.
A. Relevant Trial Testimony
It was undisputed that Malave and CW began living
together, along with CW’s mother, when CW was five years old.
It was further undisputed that on September 20, 2013, when she
was eleven years old and in sixth grade, CW told her school
counselor that Malave had been touching her inappropriately.
The last instance of alleged assault was two days prior to CW
reporting this information to her counselor. According to CW’s
testimony, she had been in trouble for drinking alcohol at
school on the day she made the report.
CW’s school counselor testified that, when CW reported
sexual abuse to her, she immediately reported this information
to her administrator and called the police. Honolulu Police
Department (HPD) Officer Kalae Phillips responded to the call.
Officer Phillips testified that he interviewed CW;
during the interview, CW reported sexual abuse since the age of
seven, beginning with Malave undressing her and touching her in
inappropriate places, and eventually leading to forced sex.
Officer Phillips further testified that Malave was
arrested in the parking lot of CW’s school that same day, when
he arrived to pick CW up.
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In her testimony at trial, CW testified that she had
never been married. CW referred to Malave as her stepfather.
She indicated that Malave was a strict parent at times, and that
she did not think of him as her father.
With respect to Malave touching CW’s breasts and
buttocks, CW testified that, beginning when she was seven or
eight years old, Malave “would start touching [her] on [her]
boobs or [her] butt, or he would start rubbing [her] thighs.”
CW testified that when he touched her during this period of
time, he touched her with his hands. CW testified that this
happened “occasionally, sometimes two to three times a week, or
whenever [her] mom wasn’t home.” This contact allegedly
happened in CW’s bedroom or Malave’s bedroom. CW testified that
Malave touched her both over her clothes and under them. With
respect to Malave touching her breasts, CW said that she was
“starting to develop” breasts at that time (when she was seven
or eight). When asked to explain how Malave would touch her, CW
stated that “he would rub his hands in circular motions across”
her breasts or buttocks. While this happened, Malave would tell
CW that he liked it, or tell her to stay still if she wanted to
move. CW testified that she did not like it when Malave touched
her, that she felt “gross” and “embarrassed,” “didn’t like
[her]self,” and “felt like something was wrong with [her]” that
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made Malave touch her. Malave told CW that if she told anyone
what was happening, he “would do the same thing to [her] little
sister or hurt [her] family.” CW took that threat to mean that
Malave would hurt CW’s mother, CW’s siblings, or anyone on CW’s
mother’s side of the family. CW believed that Malave could hurt
these individuals because he was “bigger and stronger” than her.
CW knew that Malave had been in the military, and that made her
think Malave would “really hurt” her family.
With respect to Malave having CW touch his penis, CW
next testified that, beginning when she was seven or eight years
old, Malave would grab her arm and try to put her hand on his
penis. Malave succeeded in putting CW’s hand on his penis one
time. CW testified that she did not want to touch Malave’s
penis and that she was “scared,” “felt grossed out,” and “wanted
to run away.” CW could not say precisely where her mother was
when this happened, but testified that her mother was either at
work or in her (her mother’s) bedroom. 4 CW testified that Malave
continued to place his hands on her breasts and buttocks until
4 CW provided more details about this incident later in her testimony.
She stated that this happened “before he forced [her] to have sex with him”
when his pants were off but her clothes were still on. She tried to pull her
arm back but Malave told her to stop. CW stopped trying to fight him and let
him place her hand on his penis. He told her to be “gentle” and “careful”
and had her move her hand back and forth. CW eventually stopped and Malave
did not force her to continue. CW testified that she remembered nothing else
from that incident.
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approximately September 18, 2013, two days before she disclosed
the abuse.
With respect to penetration of CW’s vagina with
Malave’s penis, CW went on to testify that the first incident
involving this type of penetration was when she was ten or
eleven years old. CW testified that she was in the bathroom
about to take a shower on “a late night” when her mother was not
home. Malave came into the bathroom, picked her up and put her
on the bathroom sink counter, and inserted his penis into her
vagina. CW testified that this hurt and was uncomfortable.
Afterward, she felt sick, hated herself, and wanted to run away.
CW testified that there were “multiple” incidents after the
first one, though she could not recall specifics of any other
incident or say how many there were altogether.
For these later incidents, the prosecutor elicited
testimony from CW that appeared to describe how contact with
Malave usually went, and did not focus on particular instances.
The following exchange was not limited to any particular time
aside from CW’s statement that sexual penetration began when she
was about ten years old:
Q: Okay. When the defendant would take you to your
bedroom or to his bedroom that he shared with your
mom, would he take you to the bed?
A: Yes.
Q: What position would you be in on the bed?
A: I would be lying on my back.
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Q: And what about his body?
A: He was over me.
Q: What about his arms?
A: They were both to the side of me.
Q: And what would he be doing with his hands?
A: He would be touching my boobs or my butt. 5
Q: What about the rest of his body?
A: It was over me.
Q: And what would he be doing with his body?
A: He would – that’s when he would insert his penis
inside my vagina, and that’s when his body would be
moving back and forth.
CW testified further that “[o]ccasionally,” Malave
penetrated her vagina with his fingers. She stated that it felt
“[u]ncomfortable.” This happened either in CW’s bedroom or in
Malave’s.
CW also testified that Malave inserted his penis into
her mouth. In general, what led up to oral penetration
according to CW’s testimony was Malave grabbing CW by the arm
and telling her to open her mouth and be careful. CW testified
that she was scared when this happened and felt like vomiting.
Again, CW did not attach any particular time to this type of
contact. CW’s testimony was phrased in general terms and
appeared to describe what would normally happen during her
sexual interactions with Malave.
CW testified that, when Malave penetrated her vagina
with his penis, “a white substance came out.” CW knew that it
5 Because Malave was allegedly touching CW’s breasts and buttocks during
penetration, this conduct could serve to establish Counts 1, 4, or 5.
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was a white substance because she could “feel it, or if he would
move, [she] would see it on him.” Although she did not know
what it was at that time, it looked like a “thick cream.” She
testified that Malave never wore a condom.
After sexual interactions, CW testified that Malave
took her clothing and washed it while CW took a shower. She
stated that she did not know why he made her give him her
clothing and take a shower. At one point, the washer in her
house broke, so Malave washed her clothing by hand in the sink.
Malave gave CW gifts when she was ten or eleven: a new
Apple computer for Christmas, an iPad, and a rose.
CW explained that the abuse occurred one to two times
per week, when CW’s mother was not home, until September 20,
2013, when CW disclosed the abuse to her school counselor.
CW testified that after she told her counselor what
was happening, she was placed into foster care, where she spent
approximately one-and-a-half weeks. She further testified that
she now lives on the mainland with her grandparents who are her
legal guardians.
CW also testified in an interview conducted by HPD
Detective Vince Legaspi. Detective Legaspi spoke with CW on
September 21, 2013. On cross-examination, defense counsel had
CW confirm that she did not tell Detective Legaspi that Malave
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“rubbed [her] boobs in a circular motion.” CW stated that she
told Detective Legaspi about Malave touching her breasts and
buttocks, although she did not specifically describe the
touching as “a circular motion.” CW said that she didn’t tell
Detective Legaspi “most of the stuff” that she told the
prosecutor’s office because she was embarrassed. CW did,
however, tell Detective Legaspi that Malave had forced her to
have sex with him. She chose to tell him this because “that’s
what scared [her] the most.”
Defense counsel also elicited testimony from CW in
which she admitted that she did not talk about Malave touching
her breasts or buttocks when she testified in front of the first
grand jury in this matter on September 24, 2013. Defense
counsel also pointed out that CW answered “no” when Dr. Guliz
Erdem, the physician who examined CW after she reported sexual
abuse, asked her whether Malave fondled her.
With respect to oral sex acts, defense counsel went on
to elicit CW’s testimony that she did not tell Ms. Nakaguma,
Officer Phillips, Detective Legaspi, or the first grand jury
that Malave put his penis in CW’s mouth. She did, however, say
this to Dr. Erdem and in the second grand jury proceeding held
in 2017.
Defense counsel also pointed out that at the first
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grand jury proceeding, CW said that Malave took her clothes off,
and at the second, she said she took her own clothes off. CW
also testified that, when Malave ejaculated, the ejaculate went
on to CW’s bed.
Dr. Erdem testified that on September 20, 2013, she
examined CW at the Sex Abuse Treatment Center. Dr. Erdem
further testified that during CW’s examination, CW reported that
Malave: (1) penetrated her vagina with his penis; (2) put his
fingers in her vagina; (3) caused oral contact between CW and
Malave’s genitals; (4) caused CW to masturbate him; and (5)
ejaculated, but that Malave did not fondle or kiss CW. Dr.
Erdem testified that CW had two “indentation cleft[s]” on her
hymen - one on each side at the 9:00 and 3:00 positions (using
the face of a clock for reference). The cleft at the 9:00
position was “very, very deep.” Dr. Erdem said that a cleft is
considered “deep” in medical terms when the cleft passes “50
percent of the lip.” Dr. Erdem testified that the clefts,
“especially the deep one,” could be consistent with a sexual
trauma - “any object penetrating the hymen opening,” including a
penis, finger, or other object.
Scott Henderson, criminalist at HPD’s forensic biology
lab, was qualified at trial as an expert in serology and
forensic DNA testing. Henderson performed tests to detect semen
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on vaginal swabs taken from CW on September 20, 2013. He found
no evidence of semen on the swabs. He also tested a bed sheet
that CW took from her bed in November 2013 and gave to her
grandmother. Henderson testified that he found no evidence of
semen on the sheet. Finally, Henderson explained that he tested
CW’s vaginal swabs for Malave’s DNA and found none. He
testified that there are a number of explanations for lack of
semen in the vaginal canal after sex, including that there was
no ejaculation, condom use, showering, swimming, douching, or
menstruation.
CW’s grandmother also testified at trial to several
anecdotes in which CW’s behavior could have suggested Malave was
acting inappropriately toward her. At a family dinner at her
home, grandmother reported that CW refused to sit next to
Malave. According to grandmother’s testimony, one day when
Malave dropped CW off at her home for a visit, CW ran upstairs
to the master bathroom and got in the shower, where she stayed
for approximately 45-60 minutes. Grandmother explained that
when she checked on CW, she saw CW laying on the floor of the
shower. Grandmother further testified that Malave had a
vasectomy in the spring of 2012.
Malave rested after the State’s case-in-chief.
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B. Jury Instructions
The family court instructed the jury on Counts 1 to 3
with the elements of Sexual Assault 1 and did not instruct the
jury on the lesser included offense of Sexual Assault 3. The
family court also did not instruct the jury as to the
jurisdictional facts, specifically that it must find that Malave
had legal or physical custody of CW.
C. Conviction and Sentencing
The jury returned a verdict on November 1, 2017,
finding Malave guilty of Counts 1 and 3. The jury could not
reach a unanimous decision on Counts 2 and 4 to 6. The State
declined to re-try Malave on Counts 2 and 4 to 6. On March 13,
2018, Malave was sentenced to 20 years each for Counts 1 and 3,
to be served concurrently.
D. Post-Trial Procedure
Malave filed a motion to set aside judgment. The
basis was that the family court lacked jurisdiction because it
did not make an on-the-record finding that Malave had physical
or legal custody over CW. The family court scheduled a hearing
on the motion to dismiss for May 11, 2018, but Malave filed his
notice of appeal to the ICA on April 13, 2018 and then withdrew
the motion to dismiss on May 10, 2018.
The ICA affirmed Malave’s conviction, concluding that
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the family court had jurisdiction, and that Malave was not
entitled to a lesser included offense instruction for Counts 1
and 3.
E. Supreme Court Proceedings
Malave timely filed an application for certiorari with
this court raising the following two questions:
1. Whether the ICA committed grave error when it
found that the family court had subject matter
jurisdiction pursuant to HRS § 571-14(a)(1), despite
the uncontroverted evidence that Petitioner was not
the legal parent, guardian, and/or having physical
custody of the Minor Complainant.
2. Whether the ICA committed grave error when it
found that there was no rational basis on the record
to support providing the jury instruction of the
lesser included offense of sexual assault in the
third degree.
III. STANDARDS OF REVIEW
A. Jurisdiction
“[A] court's jurisdiction to consider matters brought
before it is a question of law which is subject to de novo
review on appeal applying the ‘right/wrong’ standard.” State v.
Lorenzo, 77 Hawai‘i 219, 220, 883 P.2d 641, 642 (Ct. App. 1994)
(citations omitted).
B. Jury Instructions
We clarified the standard of review for jury
instructions that were not objected to at trial was clarified in
State v. Nichols, holding that:
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although as a general matter forfeited assignments of error
are to be reviewed under [Hawaiʻi Rules of Penal Procedure
(HRPP)] Rule 52(b) plain error standard of review, in the
case of erroneous jury instructions, that standard of
review is effectively merged with the HRPP Rule 52(a)
harmless error standard of review because it is the duty of
the trial court to properly instruct the jury. As a
result, once instructional error is demonstrated, we will
vacate, without regard to whether timely objection was
made, if there is a reasonable possibility that the error
contributed to the defendant's conviction, i.e., that the
erroneous jury instruction was not harmless beyond a
reasonable doubt.
Id. at 337, 141 P.3d at 984 (footnote omitted).
In the context of lesser included offense jury
instructions, “this court has held that when jury instructions
or the omission thereof are at issue on appeal, the standard of
review is whether, when read and considered as a whole, the
instructions given are prejudicially insufficient, erroneous,
inconsistent, or misleading.” State v. Flores, 131 Hawai‘i 43,
57-58, 314 P.3d 120, 134-35 (2013) (citations, alterations, and
quotation marks omitted).
IV. DISCUSSION
We conclude that the family court had jurisdiction to
preside over Malave’s trial, and he was not entitled to a lesser
included offense instruction on Counts 1-3.
A. Jurisdiction
1. Factual Determinations Regarding the Family Court’s
Jurisdiction Over the Case Should Have Been Submitted
to the Jury
Hawaii’s family court is a division of the circuit
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courts. Adams v. State, 103 Hawai‘i 214, 222, 81 P.3d 394, 402
(2003) (citing HRS § 571-3 (1993)). HRS § 571-14(a) (2018)
gives the family court exclusive original jurisdiction “[t]o try
any offense committed against a child by the child’s parent or
guardian or by any other person having the child’s legal or
physical custody.” 6
“In the first circuit any judge or judges so
designated by the chief justice of the supreme court shall be
the judge or judges of the family court of the first circuit.”
HRS § 571-4 (2018). In 1996, an order was entered by Chief
6 The full text of subsections (1) and (2) - the subsections relevant
here - is as follows:
Except as provided in sections 603-21.5 and 604-8, the court shall have
exclusive original jurisdiction:
(1) To try any offense committed against a child by
the child’s parent or guardian or by any other person
having the child’s legal or physical custody, and any
violation of section 707-726, 707-727, 709-902, 709-
903, 709-903.5, 709-904, 709-905, 709-906, or 302A-
1135, whether or not included in other provisions of
this paragraph or paragraph (2);
(2) To try any adult charged with:
(A) Deserting, abandoning, or failing to
provide support for any person in violation of
law;
(B) An offense, other than a felony, against
the person of the defendant’s husband or wife;
(C) Any violation of an order issued pursuant
to chapter 586; or
(D) Any violation of an order issued by a
family court judge.
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Justice Ronald Moon designating circuit judges of the first
circuit to sit as family court judges. Order Designating
Circuit Judges of the First Judicial Circuit of the State of
Hawai‘i to Act as Circuit Family Judges, Hawai‘i Supreme Court
(Oct. 29, 1996),
https://www.courts.state.hi.us/docs/sct_various_orders/order19.p
df. Thus, when first circuit court judges preside over criminal
cases in family court, it is immaterial whether or not the
family court has jurisdiction under HRS § 571-14(a), circuit
court judges sitting in family court have authority over both
circuit and family matters. 7 Adams, 103 Hawai‘i at 222, 81 P.3d
at 402.
Pursuant to HRS § 701-114(1)(c)(2014), however, “no
person may be convicted of an offense unless” the State proves
“[f]acts establishing jurisdiction” beyond a reasonable doubt.
As noted above, the family court has jurisdiction to try
offenses allegedly committed against children by any person
having legal or physical custody of the child. HRS § 571-
14(a)(1). The family court thus should have instructed the jury
7 District court and family court judges in the first, second, third, and
fifth circuits are also temporarily assigned to preside in the circuit courts
pursuant to a separate 1996 order from Chief Justice Moon.
Assignment of District and District Family Court Judges, Hawaiʻi Supreme Cour
t (Oct. 29, 1996), https://www.courts.state.hi.us/docs/sct_various_orders/ord
er19a.pdf.
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that it must find beyond a reasonable doubt that Malave
satisfied these criteria. 8 State v. Iuli, 101 Hawai‘i 196, 207,
65 P.3d 143, 154 (2003).
We conclude that when a jury trial is conducted in
family court in a case subject to HRS § 571-14(a), the jury
should be instructed by way of a special interrogatory to find
whether the defendant had physical or legal custody of the
complaining witness. Because many family court judges are also
circuit court judges, pursuant to Adams, lack of physical or
legal custody alone may not justify an acquittal. If the jury
finds that the defendant did not have physical or legal custody
of the CW, and the presiding judge is both a family court judge
and a circuit court judge, the judge has jurisdiction in the
capacity of a circuit court judge. 9
2. Failure to Instruct the Jury on Jurisdiction Was
Harmless
“[W]here uncontradicted and undisputed evidence
of . . . jurisdiction . . . is contained in the record, the
trial court’s failure to instruct the jury is harmless beyond a
8 Iuli thus implicitly overruled the holding in State v. Alagao, 77
Hawai‘i 260, 262, 883 P.2d 682, 684 (App. 1994), that “the court, not the
jury, decides the facts relevant to the question of subject matter
jurisdiction.”
9 We also note that while HRS § 571-14 allows the family court “exclusive
original jurisdiction” over certain cases, it also allows waiver of that
jurisdiction.
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reasonable doubt.” Id. Malave’s application incorrectly states
that there was “uncontroverted” evidence that Malave did not
have legal or physical custody of CW at the time of the
offenses. While it is clear that Malave did not have legal
custody of CW, he has not presented any argument, or pointed to
any evidence, showing that he did not have physical custody of
CW.
“‘Physical custody’ means the physical care and
supervision of a child.” 10 HRS § 583A-102. The evidence in the
record instead shows that Malave did have physical custody of CW
for the reasons the ICA noted: CW lived with her mother, Malave,
and CW’s two half-siblings; Malave watched and cared for CW
while her mother was at work; Malave cooked meals, did laundry,
disciplined CW, and sometimes helped her with homework; and CW
was expected to follow Malave’s rules and obey him. Failure to
instruct the jury on jurisdiction was thus harmless beyond a
reasonable doubt.
B. Lesser Included Offense Instruction
1. Third-Degree Sexual Assault is a Lesser Included
Offense of First-Degree Sexual Assault
The definitions of Sexual Assault 3 and Sexual Assault
10 Alagao, 77 Hawai‘i at 263, 883 P.2d at 685, relied on a statutory
definition of “physical custody” that the legislature amended in 2002. 2002
Haw. Sess. Laws Act 124. We thus no longer rely on the definition as stated
in Alagao.
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1 are identical save for one term - where Sexual Assault 1 uses
the term “sexual penetration,” Sexual Assault 3 uses the term
“sexual contact.” At the time of Malave’s offense, “sexual
contact” was defined as:
[A]ny 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 (1972) (emphasis added).
“Sexual penetration” was (and is) 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. As used in this definition,
‘genital opening’ includes the anterior surface of
the vulva or labia majora; or
(2) Cunnilingus or anilingus, whether or not actual
penetration has occurred.
HRS § 707-700.
Our initial analysis is whether the presence of the
exemption for married persons in the definition of “sexual
contact” excluded Sexual Assault 3 from being a lesser included
offense of Sexual Assault 1. We conclude that it did not.
The definition of a lesser included offense is set
forth in HRS § 701-109(4):
(a) It is established by proof of the same or less
than all the facts required to establish the
commission of the offense charged;
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(b) It consists of an attempt to commit the offense
charged or to commit an offense otherwise included
therein; or
(c) It differs from the offense charged only in the
respect that a less serious injury or risk of injury
to the same person, property, or public interest or a
different state of mind indicating lesser degree of
culpability suffices to establish its commission.
At the time, Sexual Assault 3 required that the
perpetrator was not married to the victim. Therefore, it
appears initially that Sexual Assault 3 is not an included
offense in Sexual Assault 1 pursuant to (4)(a) because it
requires proof of an additional fact - that the perpetrator and
victim were not married. This court laid out the elements of
first-degree and third-degree sexual assault in State v. Arceo,
84 Hawai‘i 1, 14-15, 928 P.2d 843, 856-57 (1996). In Arceo, we
recognized that third-degree sexual assault required proof of an
element that first-degree sexual assault did not, namely that
the perpetrator “was aware that the Minor was not married to
him.” Id. at 15,
928 P.2d at 857. But the Arceo court was not
asked to decide whether the additional element excluded Sexual
Assault 3 from being included in Sexual Assault 1.
Cases from this court and the ICA have assumed that
Sexual Assault 3 is a lesser included offense of Sexual Assault
1. See, e.g., State v. Behrendt, 124 Hawai‘i 90, 108, 237 P.3d
1156, 1174 (2010) (affirming the circuit court’s decision to
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instruct the jury on Sexual Assault 3 as a lesser included
offense of Sexual Assault 1); State v. Mueller, 102 Hawai‘i 391,
397-98, 76 P.3d 943, 949-50 (2003) (vacating conviction of
Sexual Assault 1 and remanding to the circuit court with
instructions to enter a judgment of conviction of the lesser
included offense of Sexual Assault 3) (superseded on other
grounds by statute as stated in Behrendt); State v. Abdon, No.
CAAP-13-86,
2014 WL 4800994, at *6 (App. Sep. 26, 2014)
(vacating the circuit court’s judgment based on its failure to
instruct on the lesser included offense of Sexual Assault 3 for
the charge of Sexual Assault 1) (citing Behrendt, 124 Hawai‘i at
109-10,
237 P.3d at 1175-76); State v. Miller, No. 27065,
2007
WL 318166, at *1 (Haw. Ct. App. Jan. 30, 2007) (noting, though
neither affirming nor reversing, that the circuit court vacated
the jury’s guilty verdict on the first-degree sexual assault
charge and entered judgment on the lesser included offense of
third-degree sexual assault). 11 None of these cases discuss the
significance of the fact that “sexual contact” included the
requirement that the perpetrator and victim were not married,
which appears to exclude Sexual Assault 3 from inclusion in
Sexual Assault 1 pursuant to HRS § 701-109(4)(a).
11 All of these cases were decided before the Legislature removed the
exemption for married couples from the definition of “sexual contact.”
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The most logical and simplest resolution of this
apparent conflict lies in HRS § 701-109(4)(c), which defines a
lesser included offense to be one which “differs from the
offense charged only in the respect that a less serious injury
or risk of injury to the same person.” Sexual contact - short
of penetration - carries a less serious injury or risk of injury
to the victim. This reconciles the additional element that
Sexual Assault 3 contained at the time of Malave’s alleged
offenses with the proposition that it is a lesser included
offense of Sexual Assault 1.
The case law on included offenses under HRS § 701-
109(4)(c) explains that the subsection applies where “there may
be some dissimilarity in the facts necessary to prove the lesser
offense, but the end result is the same.” State v. Kinnane, 79
Hawai‘i 46, 55, 897 P.2d 973, 982 (1995) (citations omitted).
This court applies the following factors to determine whether an
offense is included pursuant to subsection (c): “(1) the degree
of culpability; (2) the degree or risk of injury; and (3) the
end result.”
Id.
In State v. Kinnane, we found that sexual assault in
the fourth degree was an included offense in attempted sexual
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assault in the second degree 12 pursuant to HRS § 701-109(4)(c).
Id. at 56, 897 P.2d at 983. Much of the reasoning of Kinnane is
helpful here. 13
In analyzing the second factor, injury or risk of
injury, the Kinnane decision states that “‘sexual contact’ (i.e.
‘any touching of the sexual or other intimate parts of a
person,’) . . . is ‘less serious’ than the risk of ‘sexual
penetration’ (i.e. any intrusion of any part of a person’s
body . . . into the genital . . . opening of another person’s
body.)” Id. (second and third ellipses in original). In
12The court wrote:
A person commits the offense of attempted sexual
assault in the second degree . . . if the person
intentionally engages in conduct which, under the
circumstances as the person believes them to be,
constitutes a substantial step in a course of conduct
intended or known to be practically certain to
subject another person to an act of sexual
penetration that the person is aware is by
compulsion.
. . . .
A person commits the offense of sexual assault in the
fourth degree . . . if the person knowingly subjects
another person to sexual contact by compulsion or
causes another person to have sexual contact with the
actor by compulsion.
79 Hawai‘i at 53-54, 897 P.2d at 980-81.
13 For the first factor, the Kinnane court found that the requisite state
of mind of attempted second-degree sexual assault is a combination of
knowledge and intent, while the requisite state of mind of fourth-degree
sexual assault is knowledge. Id. at 55,
897 P.2d at 982. This does not apply
to Malave’s case because the requisite state of mind for both first- and
third-degree sexual assault is knowledge. HRS §§ 707-730(1)(b), 707-
732(1)(b).
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Kinnane, therefore, it was immaterial that the two offenses at
issue - attempted sexual assault in the second degree and sexual
assault in the fourth degree - did not require proof of any
injury as an element of the offense. The sexual contact or
sexual penetration itself could also be viewed as the injury in
Malave’s case. See State v. Buch, 83 Hawai‘i 308, 313, 926 P.2d
599, 604 (1996) (noting that, where two offenses both require
some type of sexual contact to establish their commission, the
two offenses “require proof of the same injury”).
Finally, the Kinnane court found that the third
factor, the end result of each offense, weighed in favor of
finding that Sexual Assault 4 was a lesser included offense of
attempted Sexual Assault 2. 79 Hawai‘i at 56, 897 P.2d at 983.
“In both instances the victim . . . is placed in jeopardy of
being injured or is being injured by the defendant’s conduct.”
Id. (quoting State v. Feliciano,
62 Haw. 637, 639,
618 P.2d 306,
308 (1980) (ellipsis in original) (brackets in original
omitted)).
Based on Kinnane, we conclude that Sexual Assault 3 is
an included offense of Sexual Assault 1 pursuant to HRS § 701-
109(4)(c).
2. There Was No Rational Basis for the Jury to Acquit
Malave of First-Degree Sexual Assault But Convict Him
of Third-Degree Sexual Assault
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Although Sexual Assault 3 is a lesser included offense
of Sexual Assault 1, the family court was not required to
instruct the jury on it. As noted above, “[A] ‘trial court is
not obligated to charge the jury with respect to an included
offense unless there is a rational basis in the evidence for a
verdict acquitting the defendant of the offense charged and
convicting him of the included offense.’” State v. Flores, 131
Hawai‘i 43, 50, 314 P.3d 120, 127 (2013) (quoting State v. Kupau,
76 Hawai‘i 387, 390,
879 P.2d 492, 495 (1994)).
Malave points to four pieces of evidence that he
argues contradict or call into question CW’s testimony: (1) CW’s
statement to her school counselor that Malave had been “touching
her inappropriately”; (2) CW’s statement to Officer Phillips
that Malave had forced her to have sex with him, without
specifically defining “sex” as penetration; (3) CW’s statement
on cross-examination that it was “possible” that Malave had only
touched her inappropriately; 14 and (4) what Malave called Dr.
Erdem’s “leading questions” during CW’s examination at the Sex
Abuse Treatment Center.
14 This argument misstates the trial testimony. During cross-examination,
CW said that she did not remember exactly what she told the counselor on
September 20, 2013, and that it was possible that she had told the counselor
only that Malave was touching her inappropriately. CW did not say that it
was possible that Malave never penetrated her, which is what the certiorari
application states.
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But these points are unavailing. CW’s statements that
Malave had been “touching” her are not evidence that Malave did
not penetrate her. Similarly, CW’s failure to provide a
definition of “sex” does not support the contention that there
was no penetration. CW never stated that it was possible that
Malave never penetrated her. And Dr. Erdem’s questions were not
unduly leading, nor would leading questions tend to show that
Malave did not penetrate CW.
Thus, after reviewing the record, we find that there
was no rational basis in the evidence for a jury to acquit
Malave of Sexual Assault 1 but convict him of Sexual Assault 3
for the conduct underlying the Sexual Assault 1 charges. As
stated above, the alleged acts underlying the Sexual Assault 1
charges were: (1) inserting his penis into CW’s genital opening;
(2) inserting his penis into CW’s mouth; and (3) inserting his
finger into CW’s genital opening. In order to provide a
rational basis to instruct the jury on Sexual Assault 3 for
these counts, there must be some evidence presented that Malave
merely made contact between his penis and CW’s genitals or
mouth, or between his finger and CW’s genitals, that did not
rise to penetration. 15
15 The ICA seemed to conclude that Malave’s decision not to testify
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Given the lack of evidence to establish that only
sexual contact, and not sexual penetration, occurred for the
type of conduct alleged in Counts 1 to 3, there was no rational
basis for a jury to acquit Malave of Sexual Assault 1 while
convicting him of Sexual Assault 3 for this alleged conduct.
Several ICA decisions on the subject of lesser
included offense instructions rely on this court’s opinion in
Behrendt, 124 Hawai‘i 90, 237 P.3d 1156. We thus take this
opportunity to clarify that prior decision. In Behrendt, the
trial court instructed the jury on the lesser included offense
of Sexual Assault 3. 124 Hawai‘i at 108,
237 P.3d at 1174. The
jury acquitted the defendant of Sexual Assault 1, but convicted
him of Sexual Assault 3. Id. at 100,
237 P.3d at 1166. On
appeal, the defendant challenged the trial court’s decision to
instruct on the lesser charge. Id. at 108,
237 P.3d at 1174.
This court affirmed the circuit court based on our conclusion
that there was a rational basis to instruct the jury on the
lesser charge, even though the evidence presented largely
focused on penetration, reasoning that “a rational juror could
precluded satisfying the rational basis standard for the lesser included
offense instruction. This proposition is incorrect, as a defendant may not
be penalized for exercising the right not to testify. Chavez v. Martinez,
538 U.S. 760, 768-69 (2003). Rather, there must be some evidence in the
record that provides a rational basis to acquit of the greater offense and
convict of the lesser, regardless of who presents that evidence and how.
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have inferred that there was ‘sexual contact’ prior to the
penetration.” 124 Hawai‘i at 110, 237 P.3d at 1176 (emphasis
added).
ICA decisions holding that defendants were entitled to
lesser included offense instructions for Sexual Assault 3 when
charged with Sexual Assault 1 appear generally to treat Sexual
Assault 1 as categorically requiring a lesser included offense
instruction. See State v. Wright, 144 Hawai‘i 381, 442 P.3d 444,
2019 WL 2148065, at *3 (unpublished) (App. May 16, 2019)
(“[W]hen a complaining witness testifies that a defendant has
committed an act of ‘sexual penetration,’ the trial court must
also instruct the jury on the lesser included offense as it is a
rational inference that ‘sexual contact’ also occurred.”); State
v. Abdon,
2014 WL 4800994, at *7. As shown by our analysis in
the instant case, this interpretation of Behrendt is not
correct. The evidence in Behrendt, which this court explained
in detail in the opinion, included evidence from which a jury
could rationally conclude that the defendant committed Sexual
Assault 3, but not Sexual Assault 1, during the conduct that the
State alleged constituted Sexual Assault 1. For example, in
Behrendt, CW testified that the defendant “would have me sit on
top of him, where he’s behind me, or he would have me straddle
him.” This conduct could constitute Sexual Assault 3, but
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because it does not speak of penetration, would not be
sufficient to constitute Sexual Assault 1. There was no similar
evidence present in the record of Malave’s case. We thus
emphasize that, while evidence of Sexual Assault 1 may often
support giving the lesser included offense instruction of Sexual
Assault 3, this is a fact-specific inquiry rather than a
categorical rule. And in Malave’s case, the record did not
support giving the lesser included offense instruction.
V. CONCLUSION
For the reasons above, we affirm the family court’s
March 13, 2018 judgment of conviction and sentence and the ICA’s
July 1, 2019 judgment on appeal.
Emmanuel G. Guerrero /s/ Mark E. Recktenwald
For petitioner
/s/ Paula A. Nakayama
Sonja P. McCullen
For respondent /s/ Sabrina S. McKenna
/s/ Richard W. Pollack
/s/ Michael D. Wilson
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