State v. Abdon. , 137 Haw. 19 ( 2016 )

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Electronically Filed
Supreme Court
SCWC-13-0000086
12-JAN-2016
09:39 AM
IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
---o0o---
________________________________________________________________
STATE OF HAWAIʻI,
Respondent/Plaintiff-Appellee,
vs.
JUNE-JUNE MAS ABDON,
Petitioner/Defendant-Appellant.
________________________________________________________________
SCWC-13-0000086
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-13-0000086; CR. NO. 12-1-0636)
JANUARY 12, 2016
RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.
OPINION OF THE COURT BY WILSON, J.
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
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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 Hawaiʻi 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
2
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harmless beyond a reasonable doubt. Accordingly, we affirm the
ICA’s judgment on appeal.
I. Background
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).1
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.2 The foreperson of the grand jury and the deputy
1
At the time of the offense, HRS § 707-730(1)(b) (1993) provided
that “[a] person commits the offense of sexual assault in the first degree if
. . . [t]he person knowingly subjects to sexual penetration another person
who is less than fourteen years old[.]” “Sexual assault in the first degree
is a class A felony.” HRS § 707-730(2) (1993).
2
HRS § 701-108 governs time limitations for prosecutions. See
infra note 6. HRS § 701-108(6)(c) (2014) states, as it did at the time
relevant here, that “[t]he period of limitation does not run . . . [f]or any
felony offense under chapter 707, part V or VI [sexual offenses and child
abuse], during any time when the victim is alive and under eighteen years of
age.” The statute was amended in 1995 to add this subsection on the basis
“that i[t] is likely to take much longer for child victims of crime to report
(continued. . .)
3
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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,3 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 Hawaiʻi 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.4 The
court rejected Abdon’s request over the objection of both Abdon
and the State, concluding that there was no rational basis upon
(. . . continued)
a crime to law enforcement.” S. Stand. Comm. Rep. No. 1205, in 1995 Senate
Journal, at 1280.
3
The Honorable Glenn J. Kim presided.
4
HRS § 707-732(1)(b) (2014) provides, as it did at the time
relevant here, that “[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[.]”
4
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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 § 701-114,5 that
the six-year statute of limitations for class A felonies
5
HRS § 701-114 (2014), entitled “Proof beyond a reasonable doubt,”
provides as follows, as it did at the time relevant here:
(1) Except as otherwise provided in section 701-115, no
person may be convicted of an offense unless the following
are proved beyond a reasonable doubt:
(a) Each element of the offense;
(b) The state of mind required to establish each
element of the offense;
(c) Facts establishing jurisdiction;
(d) Facts establishing venue; and
(e) Facts establishing that the offense was committed
within the time period specified in section 701-108.
(2) In the absence of the proof required in subsection (1),
the innocence of the defendant is presumed.
(Emphasis added).
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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.6 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
6
HRS § 701-108 (2014), entitled “Time limitations,” provides in
relevant part as follows, as it did at the time relevant here:
(2) Except as otherwise provided in this section,
prosecutions for other offenses are subject to the
following periods of limitation:
. . . .
(b) A prosecution for a class A felony must be commenced
within six years after it is committed[.]
. . . .
(5) A prosecution is commenced either when an indictment is
found or a complaint filed, or when an arrest warrant or
other process is issued, provided that such warrant or
process is executed without unreasonable delay.
(6) The period of limitation does not run:
. . . .
(c) For any felony offense under chapter 707, part V or VI,
during any time when the victim is alive and under eighteen
years of age.
(Emphases added).
6
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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
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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 the date of the
indictment, the court did not address the State’s request that
it take judicial notice of that fact.
In denying Abdon’s motion, the court also stated that
its failure to instruct the jury that it must find beyond a
reasonable doubt CW’s date of birth and that she was
continuously alive during the relevant time period resulted in
“plain error.” However, the court noted that evidence on these
issues had been adduced at trial:
In this case, I do believe that the date of birth of
the complainant and, of course, the fact that she was
continuously alive during the applicable period also
needed to go to the jury, and it didn’t. But evidence was
adduced at trial upon which the jury could have made that
finding if they had been presented with it in the jury
instructions, which I think they should have been. And I
continue to believe that’s error in this case, plain error,
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that they were not so instructed.
B. ICA Proceedings
On appeal before the ICA, Abdon argued that 1) the
circuit court erred in denying his post-verdict motion for
judgment of acquittal, and 2) the circuit court erred in denying
his request to instruct the jury on the lesser included offense
of sexual assault in the third degree.
The ICA vacated Abdon’s conviction and sentence based
on the circuit court’s failure to instruct the jury on sexual
assault in the third degree. State v. Abdon, No. CAAP-13-
0000086, 2014 WL 4800994, at *7 (App. Sept. 26, 2014) (mem.
op.), as corrected (Oct. 27, 2014).7 The ICA’s ruling on the
failure to instruct on the lesser included offense is not raised
by the parties as an issue before this court. Instead, at issue
on certiorari is the ICA’s conclusion that the circuit court did
not err by denying Abdon’s post-verdict motion for judgment of
acquittal. See id. at *5.
In this regard, Abdon argued before the ICA that “the
Indictment did not allege, and the State did not prove” that the
date the prosecution commenced was within six years from the
date CW turned eighteen. Abdon further noted that “the jury was
7
The court held that the evidence provided a rational basis to
instruct the jury on the lesser included offense because a rational juror
could infer that there was sexual contact prior to the penetration alleged by
CW. Id.
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not instructed that the State had to prove that the prosecution
commenced within the allowable time limitation period” and thus
did not have to find that the “prosecution had been timely
beyond a reasonable doubt[,]” resulting in “a denial of due
process.”
In response, the State argued that Abdon waived the
statute of limitations defense because, inter alia, he failed to
raise the defense before or during the trial. In the
alternative, the State contended that relevant precedent
supported its position that evidence of the date the prosecution
commenced need not be adduced at trial. Finally, as it did
before the circuit court, the State maintained that even if it
were required to prove the date when the prosecution commenced,
the court may take judicial notice of the date the indictment
was found. The State contended that to the extent that the
circuit court erred in reasoning that the State did not need to
prove the date when the prosecution commenced as required under
HRS § 701-114(1)(e), the circuit court’s error was harmless
because the ICA should take judicial notice that the date of the
indictment was April 24, 2012, pursuant to Hawaiʻi Rules of
Evidence (HRE) Rule 201(c), (d), or (f).8
8
HRE Rule 201(c) provides that “[a] court may take judicial
notice, whether requested or not” whereas HRE Rule 201(d) states that “[a]
court shall take judicial notice if requested by a party and supplied with
(continued. . .)
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The ICA rejected Abdon’s argument regarding the post—
verdict motion for judgment of acquittal. In this respect, the
ICA found it unnecessary to decide whether evidence presented
was sufficient to establish the timeliness of the prosecution
because Abdon waived such a challenge by requesting an
instruction on the lesser included offense of sexual assault in
the third degree, an offense barred by the statute of
limitations. Abdon, mem. op., 2014 WL 4800994, at *5. Sexual
assault in the third degree is a class C felony, and thus, a
three-year statute of limitations applies. See HRS § 707-732(2)
(2014); HRS § 701-108(2)(c) (1993). Accordingly, the statute of
limitations for sexual assault in the third degree expired on
April 26, 2009, three years following CW’s eighteenth birthday.
Under this analysis, the ICA concluded that once Abdon sought
the benefit of an instruction on the lesser included offense, he
waived not only the statute of limitations for sexual assault in
the third degree, but also any claim based on the statute of
limitations for the charged offense, i.e., sexual assault in the
first degree. To support this conclusion, the ICA cited to
State v. Timoteo, in which this court held that “Timoteo waived
the statute of limitations for the time-barred lesser included
(. . . continued)
the necessary information.” Under HRE Rule 201(f), a court may take judicial
notice “at any stage of the proceeding.”
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offense of simple trespass by requesting that the trial court
instruct the jury on [the lesser included offense].” Abdon,
mem. op., 2014 WL 4800994, at *5 (quoting State v. Timoteo, 87
Hawaiʻi 108, 116, 952 P.2d 865, 873 (1997)). The ICA determined
that “[b]y waiving proof . . . for the lesser included crime
that was otherwise time-barred, it follows that Abdon similarly
has waived his statute of limitations challenge as to the
charged crime that was not, in fact time barred.” Id. The ICA
further noted that Abdon failed to raise the statute of
limitations challenge before trial or at trial. Id. Finally,
the ICA determined that the facts establishing the timeliness of
the indictment were not in dispute, and thus the failure to
present the issue of timeliness to the jury “by way of
instructions . . . is harmless error.” Id. (citing State v.
Iuli, 101 Hawaiʻi 196, 207, 65 P.3d 143, 154 (2003)). The ICA
did not address the State’s request that it take judicial notice
of the date of the indictment.
The concurring opinion presented a different analysis
of the timeliness issue. According to the concurrence, the
State does not need to “present evidence at trial of the
incontestible [sic], judicially-known date of when the
prosecution was commenced and the limitations period stopped
running.” Id. at *8 (Nakamura, C.J., concurring). The
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concurrence reasoned that HRS § 701-114(1)(e)’s requirement that
the State prove beyond a reasonable doubt facts establishing
that the offense was committed within the statutory time period
prescribed in HRS § 701-108 is satisfied by adducing evidence of
when the limitations period began to run (the day after the
offense was committed) and any period during which the statute
of limitations is tolled. Id. (Nakamura, C.J., concurring).
“Because the date on which the prosecution was commenced is
always known and indisputable, proof of when the limitations
period began to run (and any tolling-period) will necessarily
serve to establish whether the offense was committed within the
limitations period.” Id. (Nakamura, C.J., concurring). The
concurrence noted that in the instant case, the State presented
evidence of the date of CW’s eighteenth birthday and the
indictment “indisputably shows . . . [it] was found and filed
within the six-year limitations period.” Id. at *9 (Nakamura,
C.J., concurring). Accordingly, the State’s failure to present
evidence of when Abdon’s prosecution commenced was not grounds
for overturning the conviction. Id. (Nakamura, C.J.,
concurring).
The concurrence additionally concluded that Abdon
waived his statute of limitations claim by failing to raise an
objection before trial, citing to Hawaiʻi Rules of Penal
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Procedure (HRPP) Rule 12(b), which states that “defenses and
objections based on defects in the institution of the
prosecution” must be raised prior to trial. Id. at *11
(Nakamura, C.J., concurring) (quoting HRPP Rule 12(b) (2007)).
Further, according to the concurrence, the statute of
limitations argument should be “characterized as a defense” and
Abdon failed his burden of producing evidence “to support the
defense” as is required “before the trial court is required to
instruct on it.” Id. (Nakamura, C.J., concurring).
II. Discussion
A. Post-Verdict Motion for Judgment of Acquittal
On certiorari, Abdon reasserts his claim that the
circuit court erred by denying his post-verdict motion for
judgment of acquittal because the State failed to prove beyond a
reasonable doubt that his prosecution was timely. We disagree.
Post-verdict motions for judgment of acquittal are
reviewed using the same standard applied by the circuit court,
namely, whether, upon the evidence viewed in the light most
favorable to the prosecution and in full recognition of the
province of the trier of fact, the evidence is sufficient
to support a prima facie case so that a reasonable mind
might fairly conclude guilt beyond a reasonable doubt.
Sufficient evidence to support a prima facie case requires
substantial evidence as to every material element of the
offense charged. 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.
Under such a review, we give full play to the right of the
fact finder to determine credibility, weigh the evidence,
and draw justifiable inferences of fact.
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Timoteo, 87 Hawaiʻi at 112-13, 952 P.2d at 869-70 (quoting State
v. Jhun, 83 Hawaiʻi 472, 481, 927 P.2d 1355, 1364 (1996)). Here,
Abdon would prevail on the motion for judgment of acquittal if
either the record lacked substantial evidence as to the elements
of sexual assault in the first degree, HRS § 701-114(1)(a), or
it lacked substantial evidence as to one of the following:
(b) The state of mind required to establish each element of
the offense;
(c) Facts establishing jurisdiction;
(d) Facts establishing venue; and
(e) Facts establishing that the offense was committed
within the time period specified in [HRS] section 701–108.
HRS § 701-114(1); see also Timoteo, 87 Hawaiʻi at 113, 952 P.2d
at 870.
At issue here is Abdon’s claim, pursuant to HRS § 701-
114(1)(e), that the State failed to present evidence, and that
the jury failed to specifically find, that his prosecution
complied with the time limitations laid out in HRS § 701-108.
As noted supra, sexual assault in the first degree is a class A
felony, and accordingly, at the time relevant here, the
prosecution had to “be commenced within six years after”
commission of the crime. HRS § 701-108(2)(b).9 Pursuant to HRS
§ 701-108(6)(c), however, for felony sexual and child abuse
9
HRS § 701-108(2)(b) (2014) states, as it did at the time relevant
here, that “[a] prosecution for a class A felony must be commenced within six
years after it is committed[.]” However, in 2014, the legislature amended
HRS § 701-108(1) to provide that “[a] prosecution for . . . sexual assault in
the first and second degrees . . . may be commenced at any time.” HRS § 701-
108(1) (2014). This amendment does not apply to the instant case.
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offenses, the limitations period is tolled “during any time when
the victim is alive and under eighteen years of age.” HRS
§ 701-108(5) (2014) provides, as it did at the time relevant
here, that “[a] prosecution is commenced either when an
indictment is found or a complaint filed, or when an arrest
warrant or other process is issued[.]”
Here, the indictment charging Abdon with sexual
assault in the first degree averred that CW was less than
fourteen years old at the time of the offense. The indictment
further averred that CW “was born on April 26, 1988, became
eighteen years of age on April 26, 2006, and is still alive”
with reference to the applicable tolling statute, HRS § 701-
108(6)(c). At trial, CW’s testimony supporting these averments
was undisputed. Specifically CW testified that she was nine
years old in June 1997 when the alleged sexual assault occurred
and that her date of birth was April 26, 1988. Because CW was a
minor at the time of the crime, the six-year limitations period
was tolled during the time CW was alive and under eighteen years
old. See HRS § 701-108(6)(c). Thus, the six-year limitations
period did not commence until the date of CW’s eighteenth
birthday on April 26, 2006. The indictment was filed and found
on April 24, 2012, two days prior to the expiration of the
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statute of limitations, on April 26, 2012. Accordingly, the
prosecution was timely.
Abdon does not dispute the timeliness of his
prosecution, but instead argues that HRS § 701-114(1)(e)
required the State to present evidence to the jury of the date
the prosecution commenced. Pursuant to HRS § 701-114(1)(e), the
State is statutorily required to prove beyond a reasonable doubt
“[f]acts establishing that the offense was committed within” the
relevant time period. HRS § 701-114(1)(e). If the State fails
to prove beyond a reasonable doubt any of the requirements under
HRS § 701-114(1), then “the innocence of the defendant is
presumed.” HRS § 701-114(2). For purposes of proving that the
offense was committed within the relevant limitations period,
the State had to present facts establishing the date of the
offense, the CW’s date of birth or her eighteenth birthday, that
she was alive on her eighteenth birthday, and the date of the
commencement of the proceedings. Hawaiʻi case law has repeatedly
confirmed the State’s obligation to prove timeliness and has
determined that timeliness is a factual issue. See State v.
Stan’s Contracting, Inc., 111 Hawaiʻi 17, 33, 137 P.3d 331, 347
(2006) (stating that the timely commencement of the prosecution
“constitutes a baseline substantive component that the
prosecution must prove beyond a reasonable doubt at trial”);
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Iuli, 101 Hawaiʻi at 207, 65 P.3d at 154 (stating that HRS § 701–
114 “requires proof beyond a reasonable doubt of each element of
the offense, the state of mind required to establish each
element of the offense, and facts establishing jurisdiction,
venue, and timeliness”); State v. Correa, 5 Haw. App. 644, 650,
706 P.2d 1321, 1325 (1985) (“Evidence is merely the means of
proving a fact. The trier of fact still must find the fact.
Where timeliness of the prosecution and venue are issues of
fact, the jury must be so instructed.”).
Here, the State presented evidence of the date of the
offense—June 1997—through CW’s testimony. As to the tolling
period, as noted above, the State adduced substantial evidence
regarding CW’s date of birth (and accordingly, her eighteenth
birthday), as well as evidence that she was alive during the
applicable period, the latter by virtue of her live trial
testimony. However, there was no evidence presented regarding
the date of the commencement of the proceedings, and thus, the
record lacked substantial evidence that the prosecution was
commenced within the six-year statute of limitations period.
Because the circuit court ruled that the State was not
required to provide evidence of the date of the indictment, the
court did not address the State’s request that it take judicial
notice of that fact. The State also requested on appeal that
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the ICA take judicial notice of the fact that the indictment was
found, and the prosecution was commenced, on April 24, 2012, two
days before the expiration of the statute of limitations. The
ICA affirmed the circuit court’s denial of Abdon’s motion for
judgment of acquittal, finding, inter alia, that the indictment
was timely because it was filed on April 24, 2012, and Abdon
waived any challenge to the sufficiency of the evidence
regarding the statute of limitations. Abdon, mem. op., 2014 WL
4800994, at *4-6. Consequently, the ICA also did not address
the State’s request to take judicial notice of the date of the
indictment.
Hawaiʻi Rules of Evidence Rule 201 governs judicial
notice of adjudicative facts; it provides that “[a] judicially
noticed fact must be one not subject to reasonable dispute in
that it is either (1) generally known within the territorial
jurisdiction of the trial court, or (2) capable of accurate and
ready determination by resort to sources whose accuracy cannot
reasonably be questioned.” “[T]he purpose of the judicial
notice rule . . . is to eliminate the necessity of taking the
time of the court and the jury to make formal proof of a fact
which cannot be disputed.” State v. Moses, 102 Hawaiʻi 449, 454,
77 P.3d 940, 945 (2003) (quoting In re Estate of Herbert, 90
Hawaiʻi 443, 446, 979 P.2d 39, 62 (1999)). Judicial notice,
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then, dispenses with the need for evidence and enables a court
to declare the existence of a relevant fact so long as it is a
fact that is not subject to reasonable dispute. See HRE Rule
201.
“The most frequent use of judicial notice of
ascertainable facts is in noticing the content of court
records.” State v. Akana, 68 Haw. 164, 165, 706 P.2d 1300, 1302
(1985). Because an indictment is a court record and thus an
official document, it qualifies as a “source[] whose accuracy
cannot be reasonably questioned.” See Addison M. Bowman, Hawaiʻi
Rules of Evidence Manual § 201-5[4] (2014-2015 ed.). This court
has noted that “taking judicial notice of the records and files
of a case may or may not be proper, depending upon the type of
record at issue and the purpose for which it is considered.”
State v. Kotis, 91 Hawaiʻi 319, 343, 984 P.2d 78, 102 (1999).
Where a trial court seeks to take judicial notice of “its own
acts or of the existence of records on file in the same case,” a
number of other jurisdictions have held that judicial notice
under this circumstance is proper. Id. at 341, 984 P.2d at 100.
And other jurisdictions have specifically taken judicial notice
of the filing date of certain documents, as well as the dates
when certain hearings are held in the case. See, e.g., Deicher
v. City of Evansville, 545 F.3d 537, 541-42 (7th Cir. 2008)
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(holding that the court properly took judicial notice of the
complaint filing date, which was not admitted into evidence);
State v. Blow, 602 A.2d 552, 557 (Vt. 1991) (affirming the trial
court’s decision to take judicial notice of the date of the
defendant’s arraignment).
Under HRE Rule 201(d), a court shall take judicial
notice when a party requests that the court take judicial notice
of a fact and supplies the court with the necessary information.
In this case, Abdon was found guilty of sexual assault in the
first degree after a jury trial. He filed a post-verdict motion
for judgment of acquittal, contending that the State failed to
adduce evidence and prove beyond a reasonable doubt that the
prosecution commenced within six years of the victim’s
eighteenth birthday, as required by statute. In its opposition
memorandum, the State requested that the trial court take
judicial notice that the filing date of the indictment was April
24, 2012, which was within six years of the victim’s eighteenth
birthday and therefore before the expiration of the statute of
limitations on April 26, 2012.10 The indictment, dated April 24,
2012, was in the circuit court’s file and in the court’s
immediate possession as it was attached to Abdon’s post-verdict
10
The State made this argument in the alternative. The State’s
primary argument was that it did not need to adduce evidence regarding the
date of the indictment, or in other words, the date the prosecution
commenced.
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motion and part of the court records of this case. The ready
availability and accuracy of the indictment, which neither party
contested, thus could not be questioned, and under these
circumstances, the circuit court was mandated to take judicial
notice of the date the indictment was found and filed. See HRE
Rule 201(d).
Because a court is required to take judicial notice if
requested by a party and supplied with the necessary information
and because a court may take judicial notice “at any stage of
the proceeding,” including on appeal, the ICA also should have
taken judicial notice of the indictment in light of the State’s
similar request to the circuit court. See HRE Rule 201(f). The
indictment was in the record on appeal and was in the ICA’s
immediate possession. Further, neither party disputed on appeal
the validity and accuracy of the date of the indictment, and
therefore the accuracy of the indictment could not be reasonably
questioned. Under the circumstances of this case, the ICA erred
in failing to take judicial notice of the date the indictment
was found and filed. See HRE Rule 201(d), (f).
In order to correct the circuit court’s and the ICA’s
error, this court takes judicial notice that the date the
indictment was found and filed in this case was April 24, 2012.
Taking judicial notice of this fact establishes that the
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prosecution was timely commenced two days before the expiration
of the statute of limitations, on April 24, 2012, when the
indictment was found. On this basis, we affirm the circuit
court’s denial of Abdon’s post-verdict motion for judgment of
acquittal.
We additionally determine that the ICA erred in its
conclusion that Abdon waived his timeliness challenge under HRS
§ 701-114(1)(e). See Abdon, mem. op., 2014 WL 4800994, at *5.
Specifically, the ICA concluded that pursuant to Timoteo, Abdon
waived his statute of limitations challenge to the charged
offense by requesting a jury instruction on a lesser included
time-barred offense, i.e., sexual assault in the third degree.
Id. (citing Timoteo, 87 Hawaiʻi at 115-16, 952 P.2d at 872-73).
However, Timoteo’s waiver holding does not extend to the facts
of Abdon’s case, and accordingly, the ICA’s conclusion is
incorrect.
In Timoteo, the petitioner was charged with burglary
in the first degree. 87 Hawaiʻi at 111, 952 P.2d at 868. While
the parties and the court were settling jury instructions,
Timoteo requested an instruction on simple trespass, a lesser
included offense. Id. The court granted Timoteo’s request and
the jury proceeded to find Timoteo guilty of the lesser included
offense. Id. Timoteo filed a “motion to dismiss” two days
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following the verdict, arguing that the court should enter a
judgment of acquittal because the one-year statute of
limitations on simple trespass had expired prior to the date of
the indictment. Id. The prosecution argued that Timoteo waived
the statute of limitations challenge by “request[ing] the jury
instruction for the time-barred lesser included offense of
simple trespass.” Id. The circuit court granted Timoteo’s
motion, dismissing his conviction. Id.
We construed Timoteo’s motion as a post-verdict motion
for judgment of acquittal and considered the prosecution’s
waiver argument. Id. In this regard, we determined that
statutes of limitations for prosecutions in Hawaiʻi are waivable
and agreed with the State that Timoteo waived his statute of
limitations challenge under the circumstances of the case. Id.
at 114, 952 P.2d at 871. Specifically, we held that by
“request[ing] the jury instruction on simple trespass, [Timoteo]
effectively waived the statute of limitations and agreed that
the jury could convict him of simple trespass, rather than the
more serious initially charged offense of burglary in the first
degree, because he preferred the less serious of the two
possible convictions.” Id. at 116, 952 P.2d at 873.
In the instant case, the ICA determined that Abdon
waived his statute of limitations defense for the lesser
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included offense of sexual assault in the third degree by
requesting an instruction on the lesser included offense, which
“would have been time barred,” Abdon, mem. op., 2014 WL
4800994, at *5, as explained supra. The ICA’s conclusion in
this regard is a correct reading of Timoteo. The ICA, however,
went further to hold that because Abdon waived a statute of
limitations defense for the third degree sexual assault charge,
“it follows that Abdon similarly has waived his statute of
limitations challenge as to the charged crime that was not, in
fact time barred.” Id. The ICA’s conclusion does not follow
from Timoteo’s holding. Indeed, the Timoteo court made no
reference to the effect of its waiver holding on the charged
offense. Moreover, the reasoning supporting Timoteo’s holding
does not extend to cases where the statute of limitations
challenge is to the charged offense. As we noted in Timoteo, by
requesting an instruction on a lesser included offense, in
effect, a defendant is agreeing that it is possible that he or
she may be found guilty of that offense. 87 Hawaiʻi at 116, 952
P.2d at 873. Other courts have similarly explained that where a
defendant seeks the benefit of being convicted of a less serious
crime, he or she cannot proceed to attack a conviction for that
same crime on statute of limitation grounds. See, e.g., United
States v. Williams, 684 F.2d 296, 299 (4th Cir. 1982) (holding
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that where the defendant requested the charge for the lesser
included offense and “in all probability, benefited from the
charge[,]” the defendant “cannot now complain of the result”);
People v. Brocksmith, 604 N.E.2d 1059, 1065 (Ill. App. Ct. 1992)
(“If a defendant wishes to seek a lesser offense and try for the
possible compromise verdict, he must be willing to accept the
consequences of that decision, even if it means conviction of a
crime for which the statute of limitations has expired.”),
aff’d, 642 N.E.2d 1230 (1994); Weber v. State, 602 So. 2d 1316,
1319 (Fla. Dist. Ct. App. 1992) (holding that following a guilty
verdict “based on the requested [lesser included offense]
instruction, defense counsel cannot be allowed to change legal
positions in midstream and seek a reversal based on that
error”).11 Abdon did not request to be charged with sexual
assault in the first degree, the charge at issue for his statute
of limitations challenge. Thus, unlike in Timoteo and the other
cases mentioned above, Abdon did not seek the benefit of being
convicted of a lesser crime and then take the inconsistent
position—after conviction of that lesser crime—that such a
conviction was invalid.
We also disagree with the ICA’s conclusion that Abdon
waived his statute of limitations challenge by failing to raise
11
These cases were also cited in Timoteo.
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it before or at trial. Abdon, mem. op., 2014 WL 4800994, at *5.
As noted supra, statutes of limitations for criminal
prosecutions can be waived in certain situations. Specifically,
we have held that a statute of limitations challenge to a lesser
included offense is waived by requesting an instruction on the
lesser included offense, as in Timoteo; and that the statute of
limitations may be waived by pleading no contest to the charge
at issue, as in Adams v. State, 103 Hawaiʻi 214, 226, 81 P.3d
394, 406 (2003). However, unlike in the instant case, both
Timoteo and Adams presented situations in which the defendant
acted affirmatively to imply acquiescence to being convicted of
a time-barred offense. See Timoteo, 87 Hawaiʻi at 116, 952 P.2d
at 873 (distinguishing State v. Black, 66 Haw. 530, 531, 668
P.2d 32, 34 (1983), in which we held that a defendant did not
waive his right to proof of venue by failing to raise the issue
prior to a motion for judgment of acquittal, because “unlike
Timoteo, the defendant in Black did not affirmatively act in any
manner indicating that he was waiving the right at issue”).12 We
have not yet decided whether a statute of limitations challenge
can be waived based solely on the timing of the challenge.
To determine this issue, we are mindful that while
12
Timoteo also distinguished Black on the basis that proof of
venue, unlike the statute of limitations, involves a constitutional right.
Id.
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statutes of limitations “may be invoked, and waived, as
affirmative defenses, that is not the sum total of their nature
or function.” Stan’s, 111 Hawaiʻi at 33, 137 P.3d at 347
(emphasis added). We emphasized in Stan’s that pursuant to “HRS
§ 701–114(1)(e), the timeliness of the prosecution in
satisfaction of HRS § 701–108 constitutes a baseline substantive
component that the prosecution must prove beyond a reasonable
doubt at trial” and that “silence by the defendant on the issue
of timeliness does not relieve the prosecution of its burden of
proving that component.” Id. (emphasis added). Here, based on
our holding in Stan’s, Abdon’s statute of limitations challenge
was timely, despite first raising it in a post-verdict motion
for judgment of acquittal.13 As Abdon contends, a pretrial
motion would have been premature,14 and HRPP Rule 29(c) (1977)
allows for post-verdict motions for judgment of acquittal within
ten days of the verdict without requiring a “similar motion
. . . [to be] made prior to the submission of the case to the
13
Notably, in Timoteo, the defendant raised the statute of
limitations challenge to the lesser-included offense at issue post-verdict,
but the court made no mention of the timing of the challenge in determining
that the claim had been waived. 87 Hawaiʻi at 113-16, 952 P.2d at 869-73.
14
The ICA concurrence determined that pursuant to HRPP Rule 12(b),
Abdon waived his statute of limitations claim by failing to raise it in a
pretrial motion. Abdon, mem. op., 2014 WL 4800994, at *10-11 (Nakamura,
C.J., concurring). However, HRPP Rule 12(b), governing pretrial motions,
applies to defenses and objections “which [are] capable of determination
without the trial of the general issue.” Here, Abdon’s challenge was to the
State’s failure to prove at trial that the prosecution was timely.
Accordingly, HRPP Rule 12(b) is inapplicable.
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jury.”
B. Jury Instructions
Abdon additionally takes issue with the circuit
court’s failure to instruct the jury regarding the timeliness of
the prosecution. We agree with Abdon insofar as the circuit
court erred by failing to instruct the jury that the State must
prove beyond a reasonable doubt the facts necessary to support
the statutory tolling period. Specifically, the jury should
have been instructed that the prosecution had to prove beyond a
reasonable doubt (1) the date of the offense, (2) CW’s birth
date or the date of her eighteenth birthday, (3) that CW was
alive on her eighteenth birthday, and (4) the date the
indictment was found.15 As discussed supra, this comports with
HRS § 701-114(1)(e)’s requirement that timeliness of the
prosecution be proven beyond a reasonable doubt. See Stan’s,
111 Hawaiʻi at 33, 137 P.3d at 347 (noting “the timeliness of the
prosecution in satisfaction of HRS § 701–108 constitutes a
baseline substantive component that the prosecution must prove
beyond a reasonable doubt at trial”); Correa, 5 Haw. App. at
649-50, 706 P.2d at 1325 (citing HRS § 701-114(1)(e) in
determining that the circuit court should have instructed the
15
The jury was instructed regarding the date of the offense and
CW’s age at the time of the offense. Specifically, the court informed the
jury that the prosecution must prove that the offense occurred “on or about
the 1st day of June, 1997, to and including the 30th day of June, 1997” and
that CW “was less than fourteen years old at that time.”
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jury regarding timeliness and venue).
Where jury instructions are at issue on appeal, “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.” State
v. Nichols, 111 Hawaiʻi 327, 337, 141 P.3d 974, 984 (2006).
Here, the circuit court’s failure to instruct the jury regarding
the timeliness of the prosecution was harmless beyond a
reasonable doubt, because as previously discussed, we take
judicial notice of the date of the indictment, and thus there is
sufficient evidence in the record that the prosecution was
timely commenced. In Iuli, 101 Hawaiʻi at 207, 65 P.3d at 154,
we reached a similar determination based upon the record in that
case. On appeal, Iuli argued that the “jury instructions were
insufficient because they did not instruct the jury as to venue,
jurisdiction, and timeliness of prosecution.” Id. While
acknowledging that HRS § 701-114 requires proof beyond a
reasonable doubt of “facts establishing jurisdiction, venue, and
timeliness,” we held that “where uncontradicted and undisputed
evidence of timely prosecution, jurisdiction, and proper venue
is contained in the record, the trial court’s failure to
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instruct the jury is harmless beyond a reasonable doubt.” Id.
Because the prosecution in Iuli presented evidence of
timeliness, jurisdiction, and venue at trial, we concluded that
“the trial court’s failure to instruct the jury on these matters
was harmless beyond a reasonable doubt.” Id.; see also Correa,
5 Haw. App. at 650, 706 P.2d at 1325 (holding failure to
instruct on timeliness and venue was harmless beyond a
reasonable doubt where the evidence was “uncontradicted and
undisputed . . . that the offenses occurred on November 24, 1982
in Pearl City, Oʻahu”). Here, in light of the judicially-noticed
indictment date, the record, as in Iuli and Correa, contains
undisputed evidence regarding the timeliness of the prosecution.
Accordingly, the circuit court’s instructional error was
harmless beyond a reasonable doubt.
III. Conclusion
For the foregoing reasons, the ICA’s October 22, 2014
judgment on appeal is affirmed.
Phyllis J. Hironaka /s/ Mark E. Recktenwald
for petitioner
/s/ Paula A. Nakayama
Stephen K. Tsushima /s/ Sabrina S. McKenna
for respondent
/s/ Richard W. Pollack
/s/ Michael D. Wilson
31