State v. Young

150 Hawai'i 365

502 P.3d 45

STATE of Hawai'i, Plaintiff-Appellee,

v.Cyrus A.F. YOUNG, Defendant-Appellant

NO. CAAP-20-0000524

Intermediate Court of Appeals of Hawai'i.

OCTOBER 29, 2021

On the briefs:

William H. Jameson, Jr. Deputy Public Defender, for Defendant-Appellant.

Stephen K. Tsushima, Deputy Prosecuting Attorney, City and County of Honolulu, for Plaintiff-Appellee State of Hawai'i.

Robert T. Nakatsuji, First Deputy Solicitor General, for Amicus Curiae Attorney General of the State of Hawai'i.

GINOZA, CHIEF JUDGE, LEONARD AND HIRAOKA, JJ.

OPINION OF THE COURT BY HIRAOKA, J.

This case requires that we decide whether Hawai'i Revised Statutes (HRS ) § 707-733.6(2) (Supp. 2012) violates the Sixth and Fourteenth Amendments to the United States Constitution. The Sixth Amendment requires a unanimous verdict to convict the defendant of a serious offense. Ramos v. Louisiana, ––– U.S. ––––, 140 S. Ct. 1390, 1395, 206 L. Ed. 2d 583 (2020). The Fourteenth Amendment prohibits the states from making or enforcing "any law which shall abridge the privileges or immunities of citizens of the United States[.]" HRS § 707-733.6 makes it a crime for a person who either resides with, or has recurring access to, a minor, to engage in "three or more acts of sexual penetration or sexual contact with the minor over a period of time, while the minor is under the age of fourteen years." Subsection (2) of the statute provides:

To convict under this section, the trier of fact, if a jury, need unanimously agree only that the requisite number of acts have occurred; the jury need not agree on which acts constitute the requisite number.

We hold that HRS § 707-733.6(2) does not violate the Sixth or Fourteenth Amendments to the United States Constitution. We also hold that the trial court did not commit instructional error; and the offense of Sexual Assault in the Third Degree is not included in the offense of Continuous Sexual Assault of a Minor Under the Age of Fourteen Years.

BACKGROUND

On August 3, 2017, Defendant-Appellant Cyrus A.F. Young was indicted by an O‘ahu grand jury for Continuous Sexual Assault of a Minor Under the Age of Fourteen Years, in violation of HRS § 707-733.6. His jury trial began on February 25, 2020.¹ The complaining witness (CW ) was 18 years old at the time of the trial. She testified that Young was her stepfather, married to her mother. CW had known Young since she was a baby; she called him "Dad." Young and CW's mother had two younger children, CW's half-siblings. The five lived together in the same house.

CW testified that Young would touch her when she was 12 and 13 years old:

So I remember one night I was in the living room, and I just woke up and I remember like feeling [Young] behind me, ‘cause I would lay on the couch, and he would just start like rubbing -- rubbing my thighs and my stomach and sometimes my breast and just make me feel uncomfortable and like -- like what's going on?

And then I remember another time, I was sleeping in my room, and he was leaving to go to work, and he told me goodnight. Then after he told me goodnight, he came back into my room after maybe like a couple minutes, and he grabbed my -- he pulled my ankles to the end of my bed where I was sleeping, and he pulled down my pants and my underwear, and he put his tongue on my vagina.

And another time, I remember I was also in my room, and I -- I felt him like come onto my bed. And then I could hear the sound of his velcro from his shorts like coming off. And then I remember him grabbing my hand and putting his penis in my hand to make me hold it. And then after, he -- he put his penis in my butt -- between my butt cheeks. Then he started moving. And that's what I remember.

CW described the incidents in more detail in response to further questions. She also described a fourth incident, when Young went into her bedroom and rubbed her body both over and under her clothes, then claimed he had sleepwalked into her room.

Young testified in his own defense. He denied all of CW's allegations.

The circuit court's jury instruction no. 22 on "Continuous Sexual Assault of a Minor Under the Age of Fourteen" was read to the jury by agreement.² It stated:

The Defendant, CYRUS A.F. YOUNG, is charged with the offense of Continuous Sexual Assault of a Minor Under the Age of Fourteen.

A person commits the offense of Continuous Sexual Assault of a Minor Under the Age of Fourteen if he either resides in the same house with a minor under the age of fourteen or has recurring access to the minor, and engages in three or more acts of sexual penetration or sexual contact with the minor over a period of time while the minor is under the age of fourteen years.

There are four material elements of the offense of Continuous Sexual Assault of a Minor Under the Age of Fourteen, each of which the prosecution must prove beyond a reasonable doubt.

These four elements are:

1. That on or about February 27, 2013, to and including February 26, 2015, in the City and County of Honolulu, the Defendant engaged in three or more acts of sexual penetration or sexual contact with [CW] ; and

2. That during that same period of time, the Defendant either resided in the same house with [CW] or had recurring access to her; and

3. That the Defendant did so intentionally or knowingly as to the foregoing elements; and

4. That during that same period of time, [CW] was under the age of fourteen years.

In addition, as to element number 1, the jury need unanimously agree only that the requisite number of acts have occurred; the jury need not agree on which acts constitute the requisite number .

(Emphasis added.)

The jury found Young guilty as charged. He was sentenced to a 20-year prison term. The circuit court entered a "Judgment of Conviction and Sentence" on July 24, 2020. This appeal followed.

POINTS OF ERROR

Young contends: (1) "The trial court plainly erred in failing to instruct the jury that each individual juror had to find three separate instances of sexual contact or sexual penetration"; (2) "The trial court plainly erred in failing to instruct the jury on the included offense of sexual assault in the third degree"; and (3) " HRS § 707-733.6(2) is unconstitutional under the 6th [sic] and 14th [sic] amendments [sic] of the United States Constitution."

STANDARDS OF REVIEW

Jury Instructions

The standard of review for a trial court's issuance or refusal of a jury instruction is whether, when read and considered as a whole, the instructions given are prejudicially insufficient, erroneous, inconsistent, or misleading. Erroneous instructions are presumptively harmful and are a ground for reversal unless it affirmatively appears from the record as a whole that the error was not prejudicial. In other words, error is not to be viewed in isolation and considered purely in the abstract. It must be examined in the light of the entire proceedings and given the effect which the whole record shows it to be entitled. In that context, the real question becomes whether there is a reasonable possibility that error may have contributed to conviction.

State v. Rabago, 103 Hawai'i 236, 245-46, 81 P.3d 1151, 1160-61 (2003) (cleaned up) (reformatted). Young did not object to any jury instruction. However,

although as a general matter forfeited assignments of error are to be reviewed under Hawai‘i 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.

State v. Malave, 146 Hawai'i 341, 348, 463 P.3d 998, 1005 (2020) (cleaned up).

Statutory Interpretation

"The interpretation of a statute is a question of law reviewable de novo." Rabago, 103 Hawai‘i at 245, 81 P.3d at 1160 (cleaned up).

Included Offenses

Whether an offense is an included offense of another is a question of law reviewed de novo under the right/wrong standard of review. See State v. Friedman, 93 Hawai'i 63, 68, 996 P.2d 268, 273 (2000).

Questions of Constitutional Law

"We answer questions of constitutional law by exercising our own independent judgment based on the facts of the case, and, thus, questions of constitutional law are reviewed on appeal under the ‘right/wrong’ standard." Rabago, 103 Hawai'i at 244, 81 P.3d at 1159 (cleaned up).

DISCUSSION

"A fundamental and longstanding principle of judicial restraint requires that courts avoid reaching constitutional questions in advance of the necessity of deciding them." State v. Uchima, 147 Hawai'i 64, 87, 464 P.3d 852, 875 (2020) (citation omitted). It is necessary for us to reach the constitutional issue in this case because Young's other points of error have no merit. We begin with the constitutional issue because our discussion of the continuing course of conduct criminalized by HRS § 707-733.6 informs our discussion of the remaining issues.

HRS § 707-733.6(2) does not violate the Sixth or Fourteenth Amendments to the United States Constitution.

Citing Ramos, Young contends that HRS § 707-733.6(2) violates the Sixth³ and Fourteenth⁴ Amendments to the United States Constitution. HRS § 707-733.6 provides:

§ 707-733.6 Continuous sexual assault of a minor under the age of fourteen years . (1) A person commits the offense of continuous sexual assault of a minor under the age of fourteen years if the person:

(a) Either resides in the same home with a minor under the age of fourteen years or has recurring access to the minor; and

(b) Engages in three or more acts of sexual penetration⁵ or sexual contact⁶ with the minor over a period of time, while the minor is under the age of fourteen

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