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                                                                Electronically Filed
                                                                Supreme Court
                                                                SCWC-XX-XXXXXXX
                                                                22-APR-2020
                                                                01:03 PM




           IN THE SUPREME COURT OF THE STATE OF HAWAI‘I

                            ---o0o---
________________________________________________________________

          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 22, 2020

 RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.

        AMENDED 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 her school

counselor, 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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