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                                                              Electronically Filed
                                                              Supreme Court
                                                              SCWC-30278
                                                              22-MAR-2012
                                                              08:13 AM




           IN THE SUPREME COURT OF THE STATE OF HAWAI#I

                                ---o0o---


         STATE OF HAWAI#I, Respondent/Plaintiff-Appellee,

                                    vs.

      PETER KALANI BAILEY, Petitioner/Defendant-Appellant.



                             NO. SCWC-30278

         CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
                (ICA NO. 30278; CR. NO. 07-1-0386)

                             MARCH 22, 2012

    RECKTENWALD, C.J., NAKAYAMA, ACOBA, AND DUFFY, JJ.; AND
CIRCUIT JUDGE POLLACK, ASSIGNED IN PLACE OF MCKENNA, J., RECUSED

        AMENDED OPINION OF THE COURT BY RECKTENWALD, C.J.

          Peter Kalani Bailey was convicted in the Circuit Court

of the Third Circuit on four counts of attempted sexual assault

in the first degree in violation of Hawai#i Revised Statutes

(HRS) §§ 705-500 and 707–730(1)(b), cited infra, in relation to

an incident on July 22, 2007 in which Bailey allegedly attempted

to engage in four acts of sexual penetration with MM, who was
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twelve years old at the time.1       The ICA affirmed Bailey’s

convictions.    State v. Bailey, No. 30278, 2011 WL 2520275 (Haw.

App. Apr. 25, 2011).

            Several events occurred during trial, which are the

subject of Bailey’s application for a writ of certiorari.              First,

it appears that the courtroom doors were locked for part of the

jury selection, and Bailey argues that this closure of the

courtroom violated his constitutional right to a public trial.

Second, during the jury’s deliberations, Juror Nine informed the

other jurors that Bailey had previously been charged with and/or

convicted of murder.      Bailey argues that Juror Nine’s statements

constituted juror misconduct, and that the circuit court abused

its discretion in denying his motion for mistrial in relation to

these statements.     Third, Bailey challenges the circuit court’s

decision to replace Juror Nine with an alternate juror after

deliberations had begun, in violation of Hawai#i Rules of Penal

Procedure Rule 24(c).2      Bailey argues that this error was not

harmless beyond a reasonable doubt.         Finally, Bailey argues that

there was no rational basis in the evidence for instructing the

jury on the included offense of attempted sexual assault in the

first degree, of which he was eventually convicted, and that the

evidence presented at trial was insufficient to support his


      1
            The Honorable Glenn S. Hara presided.

      2
            At the time of Bailey’s trial, Hawai#i Rules of Penal Procedure
(HRPP) Rule 24(c) provided in relevant part that “[a]n alternate juror who
does not replace a regular juror shall be discharged when the jury retires to
consider its verdict.” Rule 24(c) has since been amended. See infra n.18.

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convictions.

          We hold that the circuit court abused its discretion in

denying Bailey’s motion for mistrial, because Juror Nine’s

statements regarding Bailey’s prior murder charge and/or

conviction were not harmless beyond a reasonable doubt.

Accordingly, the circuit court’s judgment of conviction and

sentence must be vacated.      However, we further hold that the jury

was properly instructed on the offense of attempted sexual

assault in the first degree, and that the evidence was sufficient

to support each of Bailey’s convictions.         Accordingly, we remand

to the circuit court for a new trial on the four counts of

attempted sexual assault in the first degree.          See State v.

Kalaola, 124 Hawai#i 43, 51, 237 P.3d 1109, 1117 (2010) (holding

that retrial was not barred because “there was clearly sufficient

evidence adduced to support a conviction”); State v. Feliciano,

62 Haw. 637, 644, 618 P.2d 306, 311 (1980) (holding that, where a

defendant is convicted on a lesser included offense, “retrial on

the greater offense is barred” under double jeopardy principles),

superseded by statute on other grounds as stated in State v.

Rumbawa, 94 Hawai#i 513, 517, 17 P.3d 862, 866 (App. 2001).

          In light of our resolution of these issues, we do not

address Bailey’s arguments that the circuit court erred in

denying his motion for mistrial based on the locking of the

courtroom doors, and in seating an alternate juror after

deliberations had begun.


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                                I.   Background

            The following factual background is taken from the

record on appeal.

A.    Pretrial proceedings

            On August 9, 2007, the grand jury returned an

indictment charging Peter Kalani Bailey3 with four counts of

sexual assault in the first degree in violation of HRS § 707-

730(1)(b).4       Each of the four counts of the indictment alleged

that, on or about July 22, 2007, Bailey engaged in sexual

penetration with a person who was less than fourteen years old.

Count 1 alleged that Bailey engaged in “digital penetration.”

Count 2 alleged that Bailey engaged in “penile penetration.”

Count 3 alleged that Bailey engaged in “cunnilingus.”                  Count 4

alleged that Bailey engaged in “fellatio.”

      3
            Although the records in this case indicate that Bailey’s middle
name is Kalani, his counsel asserts that his middle name is Lilikalani.

      4
            HRS § 707-730(1)(b) (Supp. 2006) provides: “A person commits the
offense of sexual assault in the first degree if . . . [t]he person knowingly
engages in sexual penetration with another person who is less than fourteen
years old[.]”
            “Sexual penetration” 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.
            For purposes of this chapter, each act of sexual
            penetration shall constitute a separate offense.

HRS § 707-700 (Supp. 2006).

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              Prior to trial, defense counsel filed several motions

in limine.      Relevant to Bailey’s application, defense counsel

sought to exclude evidence of any prior criminal convictions.

The State did not object, and the circuit court agreed to exclude

evidence of Bailey’s prior criminal record.

B.    Trial

              Jury selection was conducted over the course of several

days.      On May 12, 2008, Bailey orally moved for a mistrial on the

ground that the courtroom doors were locked during a portion of

jury selection on May 7, 2008.        The circuit court denied Bailey’s

motion for mistrial, and decided to recall the jurors from the

afternoon of May 7, 2008 so that the court could reexamine them.5

      1.      Evidence presented at trial

              The State called MM as its first witness.        MM testified

that she was 12 years old at the time of trial.            She attended the

church of the First Assembly of God, where she participated in

singing on Fridays.      She explained that Bailey was one of the

adults in charge of the youth activities, including singing.

              MM testified that Bailey telephoned her house on a

Sunday during the “[n]ighttime,” and asked if MM could go to the

church to practice singing.       MM received permission from her

mother and Bailey picked her up and drove her to the church.

              MM testified that after they arrived at the church,



      5
            Transcripts of the sessions in which the court recalled the jurors
are not contained in the record on appeal.

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Bailey went to the bathroom and she waited outside.           After Bailey

exited the bathroom, he approached MM from behind and “wrap[ped]

his arm around [her] . . . stomach.”         He told her that she was

“stiff.”    Bailey eventually told MM to go with him to the “copy

room.”

            MM testified that the lights in the copy room were on.

She and Bailey sat down and sang one or two songs.           Bailey then

asked MM to “come to him” and to “bend down on [her] knees.”

Bailey then massaged MM’s shoulders from behind her.            MM had not

asked for a massage.

            MM testified that Bailey then “made [her] lie on the

floor” facing down with her head facing away from the door.

Bailey then pulled up MM’s jacket and began rubbing oil on her

back.    He told her that “he [had] to take off [her] bra cause the

oil’s gonna go on top [of] it.”       MM testified that Bailey

unhooked her bra, and then “took off [her] shirt and jacket.”

Bailey continued to massage MM toward her “butt” and then removed

her underwear and pants.      Bailey continued to spread oil on MM

and massage MM’s back and butt.

            Bailey then left the room for a few minutes.          After

Bailey returned, he told MM that her brother KM had come and that

Bailey had given him some money.         MM asked Bailey why he had

given her brother money, but Bailey did not respond.            Bailey then

“undressed himself” and told MM to “face upwards.”           MM complied.

            MM testified that she told Bailey that she had her


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“menstruation [at] that time” and Bailey responded, “It’s okay.”

Bailey then placed MM’s “bra on top [of her] mouth” and turned

off the lights.    He then placed her bra on her eyes and “told

[her] to suck on his penis.”       MM did not say anything.       Bailey

then “put his penis in [her] mouth” and “his finger up [her]

vagina.”    Bailey also “licked [MM’s] vagina.”        Bailey then “went

down to [her] legs and he put his penis in [her] vagina.”             MM was

“[s]cared” and thinking about whether she was “still gonna be a

virgin.”

            MM then heard footsteps outside, and her uncle

(“Uncle”) opened the door.      MM testified that Bailey’s penis was

“still on [her]” when Uncle opened the door and she was still

nude.    MM had “one leg . . . up on [Bailey’s] shoulders and one

down.”    When she heard the door open, MM took the bra off her

eyes, and Uncle told her to “put on [her] clothes and go

outside.”    MM heard Bailey tell Uncle that he “made a mistake.”

MM got dressed and went outside.         MM’s mother eventually arrived,

and MM “asked her for water” “to take out the, um, germs from

[Bailey’s] penis.”    MM “washed [her] mouth” with the water.              MM

then went to a hospital and was examined.

            On cross-examination, defense counsel asked MM about

statements she made to a detective a day or two following the

incident.    MM testified that she told the detective that Bailey

had “grabbed” her side after he exited the bathroom at the

church.    MM further testified as follows:


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                  Q. Okay. And when your brother [KM] came, um,
            [Bailey] still had his clothes on?
                  A. I don’t think so.
                  Q. You believe so?
                  A. That he -- that he had his clothes on?
                  Q. Yes.
                  A. I think he had his pants off.
                  Q. Okay. So you believe at this time he didn’t
            have a shirt on?
                  A. Um.
                  Q. But he had pants on?
                  A. Huh?
                  Q. Okay. [Bailey], at the time [KM] came,
            okay, he had his pants on. You remember that? Yes or
            no?
                  A. No.
                  Q. He didn’t have his pants on?
                  A. He didn’t have his pants on.
                  . . . .
                  Q. He did not have his pants on. Okay. Do you
            remember talking to Detectives Castillas [sic].
                  . . . .
                  A. Yes.
                  Q. And do you remember telling her that, um,
            when [KM] came [Bailey] had his pants on but his shirt
            off?
                  A. Um, I forget.

            Defense counsel also questioned MM regarding the

alleged penile penetration by Bailey as follows6:
                  Q. Okay. . . . you said that he put his penis
            inside your vagina. Correct?
                  A. Yes.
                  Q. Now, that was inside your body. Correct?
                  A. Yes.
                  . . . .
                  Q. How far inside you could you feel that?
                  A. Um, I dunno.
                  Q. Could you feel it up towards your stomach?
                  A. Oh, no.
                  Q. Up towards your belly button?
                  A. Um, I dunno.
                  Q. You don’t know? Could you feel it right by
            your hips, the pressure coming in by inside you as far
            as up to your hips?
                  A. I think so.
                  Q. You think so? So inside you on the top of
            your hips.
                  A. Um, yeah.
                  Q. Yeah? So you think that would be at least a
            few inches inside of you?
                  A. Yes.



      6
            Defense counsel similarly questioned MM regarding the alleged
digital penetration. MM testified that she could feel Bailey’s fingers a
“[c]ouple inches” inside of her body, but “not too far[.]”

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                  Q. Okay. As -- about as much as six inches?
                  A. I dunno. I think so. Yeah.
                  Q. You could feel it? You could feel it deep
            inside you?
                  A. Not really deep.
                  . . . .
                  Q. Around your hips?
                  A. Yeah.
                  Q. So that would be a number of inches.
            Correct?
                  A. Yes.

            MM further testified that she could “not really” use

her hands freely during the incident because “his hands was kind

of on top [of her] wrist kinda.”

            Defense counsel asked MM regarding statements she made

to a police officer at the scene.        MM confirmed that she told the

officer that Bailey massaged her with oil and touched her

breasts.    She did not tell the officer anything else that

happened to her.     Defense counsel also asked MM regarding

statements she made to a nurse at the hospital where she was

examined.    MM testified that she told the nurse that Bailey “did

sex with [her].”

            On redirect, MM testified that she could not see what

Bailey was doing before KM arrived because she was laying face

down on the ground.     She could not see whether he was dressing or

undressing, but she thought he took his clothes off because his

belt “made a jingly sound.”

            MM’s brother KM testified as follows.         On July 22,

2007, MM told KM that Bailey called, and MM asked KM if he wanted

to go to church to practice bass guitar and singing.             He did not

go with her to the church.      However, when he found out that MM


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had left, he wanted to go to the church because he “had a feeling

like something was gonna happen” since the pastor had told him

earlier that day that Bailey could not go to church because his

back was sore.

            When he arrived at the church, KM went toward the copy

room.   The door to the copy room was open and the lights were on.

KM did not enter the room.      He looked into the room and saw MM

face down on the ground and Bailey “kneeling . . . by her

head[,]” both fully undressed.       Bailey was rubbing oil on MM’s

back.   KM was mad at Bailey for rubbing the oil on his sister but

did not say anything.

            Bailey then put on his clothes, walked outside, and

asked how KM’s family was doing.         After KM answered, “good[,]”

Bailey gave him “like $18.”      KM crumpled the money and put it in

his pocket without counting it.       Bailey told him, “Oh, I drop

your sister, like, around twenty minutes,” and, “Don’t tell

anybody.”    Bailey then went back inside the room and closed the

door.

            KM then ran to his aunt’s house “[t]o get help.”           KM

told Uncle what he saw, and KM, his aunt and Uncle, and another

relative drove back to the church.         KM’s relatives did not let KM

go to the copy room.     KM testified that, when he saw MM, she was

“[s]cared and mad” and crying.        KM gave the police the money

that Bailey gave him.

            On cross examination, KM testified that he told two


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police officers he talked with at the scene that he had seen MM

on the floor without any clothes, and that Bailey was massaging

her with oil.      Defense counsel also elicited KM’s testimony that

he told the officers that Bailey gave him $15, rather than $18.

             Uncle testified as follows.        MM is a niece of his live-

in girlfriend.       On the night of July 22, 2007, he spoke with KM,

who was “crying and trembling.”          KM “told [Uncle] what

happened[.]”      KM had a “wad of money in his hand.”          Uncle drove

to the church with his girlfriend, her brother, and KM.               Upon

arriving at the church, he ran towards the side of the church

where the lights were on, yelling, “Hello?”             He went to a room

where he saw work boots outside the door.            He opened the door and

turned on the lights, and he saw Bailey “holding [MM’s] legs up

and licking her vagina.”         MM was on her back and completely nude.

Bailey was also undressed.         Uncle stated, “What the fuck is going

on?”    MM and Bailey “popped up off the ground” and Bailey said

“I’m sorry.”      Uncle instructed MM to put on her clothes and run

to her aunt.      Bailey put his pants on.        Uncle told him, “Don’t

fuckin’ move[,]” and “yelled to [Uncle’s] girlfriend to call the

police.”

             Uncle then spoke with a 911 operator.           He did not

recall the exact details, but he cut the discussion short to

“hold back” his girlfriend’s “brother and [the brother’s]

friend[,]” who were “pretty much going crazy.”             Uncle was “very,

very, very angry.”


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          On cross examination, defense counsel asked Uncle

whether he recalled telling the 911 operator, “[Bailey] didn’t

rape her, she said.”     Uncle testified that he did not recall

saying that and that “[t]here was a lot going on at that time[.]”

Defense counsel then had Uncle listen to a tape of the 911 call

during recess, in order to refresh his recollection.            Having

listened to the tape, Uncle acknowledged that he told the 911

operator (1) “He was on top of her with her pants down touching

her”; and (2) “No, he did not rape her, she said.”

          Uncle acknowledged that he told a police detective

during a subsequent interview that MM had a rag stuffed in her

mouth when Uncle walked into the room.         Uncle also acknowledged

that he testified at the grand jury proceedings in this case that

MM had her hands tied behind her back and that Bailey was holding

only one of her legs up in the air when Uncle walked into the

copy room.

          On redirect, Uncle testified that he did not actually

see MM’s hands tied behind her back, but that he assumed they

were because “[w]hen she got up her hands was behind her back,

and she did not freely take her hand out.         She pulled it.”

Regarding his statement to the 911 operator that MM said that she

was not raped, Uncle testified that he “must have” received this

information from his girlfriend, rather than MM herself, because

he had not asked MM about what happened.

          Nurse Merle Endo testified as follows.           She is a sexual


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assault forensic nurse examiner, and she physically examined MM

on the night of July 22, 2007.       MM was scared and “crying off and

on” during the examination.      MM had no injuries on her body, but

her skin was “slippery.”      She had just started her menstruation.

Nurse Endo observed “quite a bit of vaginal bleeding that made it

difficult to . . . get a really good look.”          Nurse Endo observed

no “obvious [vaginal] injuries.”         She testified, however, that

she had encountered injuries in only “[a]bout 5 percent” of

approximately 148 examinations of female children she had

performed.   Nurse Endo also testified that she observed a

“slippery substance on [MM’s] labia.”         Nurse Endo testified that

slippery substances reduce friction, “[c]aus[ing] less injury.”

Nurse Endo stated that the presence of blood “would also assist

in having less friction.”

          On cross examination, Nurse Endo testified there was no

injury to MM’s hymen and that her final report indicated that

“there were no physical findings.”         Nurse Endo also stated that

she took samples from Bailey and MM of their fingernail

scrapings, blood, saliva, pubic hair, and a genital swab, and

turned them over to the detective on the case.

          Detective Lorenzo Artienda testified that he spoke with

Bailey as part of his investigation of the instant case.

Detective Artienda testified that Bailey did not confess to

“sexually touching” MM.     A redacted DVD of Detective Artienda’s

interview with Bailey was admitted into evidence as State’s


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Exhibit 142.7

            Detective Artienda testified that, during the course of

his investigation, he received a clinical lab report detailing

findings from the swabs taken by Nurse Endo, and indicating that

there were no motile sperm in MM’s “vaginal area,” and that MM

tested negative for chlamydia and gonorrhea.           Detective Artienda

did not send the various swabs from MM and Bailey for DNA

testing.    He testified that he has not sent any cases for DNA

testing in the past and that, in this case, he did not send the

swabs for DNA testing because the police “[u]sed DNA evidence for

identification and [they] already had [identification]” by virtue

of MM’s account of events.       He also testified that he did not

send samples recovered at the scene for a “blood typing test.”

            The State rested8 and the defense called Officer Romeo

Fuiava as its first witness.        Officer Fuiava testified as

follows.    He was one of the officers dispatched to the church to

investigate the incident.       When he arrived, he spoke with MM who

told him that “the suspect had lifted her shirt up and rubbed

some oil on her breast and fondled her.”          She “couldn’t” provide



      7
            Although the DVD was admitted into evidence during Detective
Artienda’s testimony, the recording was not played for the jury at that time.
Instead, as discussed infra, it appears that the DVD was played for the first
time during the State’s closing argument.

      8
            After the State rested, Bailey moved for a judgment of acquittal,
arguing that MM’s testimony that Bailey inserted his penis six inches into her
vagina conflicted with the physical evidence of no injuries to her vagina and
hymen. The circuit court denied the motion because, “viewed in the light most
favorable to the State, the evidence is sufficient to prove each and every
element of the four counts charged.”

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more details because “[s]he was kind of upset when she was

telling [the officer] that.”        He did not attempt to get more

information from MM because “she was upset[.]”           MM did not have

any visible injuries at that time.

            Officer Grace Castillo testified as follows.            Officer

Castillo testified that she was “made aware of a case involving

[MM]” on July 23, 2007, when she interviewed MM.            MM had been at

home prior to the interview, but Officer Castillo did not know

whether MM had discussed what happened to her with her family

members.    Officer Castillo testified that MM told her that Bailey

had taken off his shirt and pants before KM arrived.             She

testified that MM later said that Bailey was “half naked,” but

Officer Castillo was not sure whether that statement referred to

the time period before or after KM arrived.           She further

testified that MM told her that, when she first arrived at the

church, Bailey touched her on the right side of her waist.               MM

did not say anything about Bailey hugging her.           MM also told

Officer Castillo that she could “only feel what was happening to

her” because Bailey had turned off the lights.           Officer Castillo

did not recall MM making any statements that Bailey had covered

her face.    Officer Castillo was not asked to provide any further

details regarding her interview of MM.

            Bailey did not testify, and the defense rested.9



      9
            Bailey renewed his motion for judgement of acquittal.   The circuit
court denied the motion.

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      2.     Jury instructions

             The State requested that the jury be instructed on,

inter alia, the included offense of attempted sexual assault in

the first degree, as to each count.          Defense counsel objected and

argued that
             . . . the evidence in this particular case, um, as
             presented by the [S]tate, supports only either a [sic]
             actual penetration as testified to by [MM] and the
             other witnesses or -- and/or not. In other words,
             there were no other substantial steps taken. Only
             other substantial step that could be asserted by the
             [S]tate to lead to an attempt in this matter would be
             the disrobing of [MM], and we believe that that is
             insufficient on its face to go forward with the
             attempt counts.

             The circuit court denied defense counsel’s objection on

the ground that “there are other acts that could be argued as

substantial steps, but we’ll leave that to the [S]tate to do

that.”     The jury was instructed on each count that, if it found

Bailey not guilty of sexual assault in the first degree, or was

unable to reach a unanimous verdict, it “must consider” whether

Bailey was guilty or not guilty of the offense of attempted

sexual assault in the first degree.10

      3.     Closing arguments

             In closing, the State argued that the witnesses’

testimony supported a conviction on all four counts of sexual

assault in the first degree:
                   . . . [MM] told you what happened to her. She



      10
            The jury was also instructed that “all twelve jurors must
unanimously agree that the same act has been proved beyond a reasonable doubt”
and that “[e]ach count and the evidence that applies to that count is to be
considered separately.”

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            was sexually assaulted when the defendant put his
            penis into her mouth, also known as fellatio. She was
            sexually assaulted when he put his fingers into her
            vagina, digital penetration. She was sexually
            assaulted when the defendant licked her vagina,
            cunnilingus. And, finally, she was sexually assaulted
            when the defendant put his penis into her vagina,
            penile penetration.
                  [MM’s] testimony doesn’t stand alone. You heard
            from three other eye witnesses that corroborate and
            support what she told you --her brother, [KM]; her
            uncle, []; and the defendant himself.
                  [KM] told you that when he went to the copy or
            office room after arriving at the church, he looked
            inside the door of the copy room. What did he see?
            He saw his sister, [MM], lying on the floor. He also
            told you that he saw the defendant kneeling beside
            [MM] on the floor. And he was rubbing [MM]. Most
            importantly, he’s told you that they were both naked.
                  [Uncle], he told you that when he went to the
            room after being alerted by [KM] that he saw [MM] on
            the floor. The defendant was also on the floor, and
            they were both naked. But he also told you that he saw
            the defendant holding [MM’s] legs in the air, and he
            was licking her vagina. Cunnilingus.
                  Finally, the defendant. He told Detective
            Artienda basically, regarding the specific incident
            with [MM], he doesn’t remember. But when you look at
            state’s exhibit [142] that has portions of his
            interview with Detective [] Artienda, you’ll find he
            has a very detailed recollection of what happened
            before he picked up [MM], and he remembers as soon as
            [Uncle] comes into the room and sees what’s going on.
            He conveniently is forgetting what happens during the
            sexual assault.
                  Does that make sense? You’re gonna say no. But
            what’s important about what the defendant tells
            Detective Artienda is that when Uncle [] comes into
            the room, he admits, yes, he’s on the floor, and, yes,
            [MM] is naked on the floor as well.

            The State then played the DVD of Bailey’s interview

with Detective Artienda for the jury.11

            Defense counsel’s closing argument focused on alleged

inconsistencies in the testimony of the State’s witnesses.              For



      11
            Although the DVD itself is contained in the record on appeal, the
record does not contain a transcript of the interview. In brief summary,
during the redacted interview, Bailey recounted what he had done on the
morning of the incident in some detail, but stated that he had no memory of
getting to the church or of what had occurred there. He did not remember
anything but seeing MM, who he thought was naked, after her family arrived.
He stated that he was sorry and would tell MM he was sorry if he saw her.

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example, defense counsel argued that Uncle told the 911 operator

that, when he entered the copy room, Bailey had his pants off.

However, defense counsel noted that Uncle did not inform the 911

operator that Bailey was licking MM’s vagina, that MM had a rag

in her mouth, or that MM’s hands were tied behind her back, as he

testified before the grand jury.           Defense counsel also pointed

out that Uncle had told the 911 operator that Bailey did not rape

MM.   Defense counsel also argued that MM’s testimony was

inconsistent with that of Uncle, because MM testified that

Bailey’s penis was inside of her when Uncle arrived, whereas

Uncle testified that Bailey was licking her vagina.

            In addition, defense counsel argued that Nurse Endo’s

findings during the physical examination were inconsistent with

MM’s account of the incident.         For example, defense counsel

argued that MM stated that “Bailey had inserted his penis inside

of her up to the portion of her hips a number of inches, where it

sat doing nothing for five to ten minutes.           The lack of physical

evidence in those conditions with that testimony is reasonable

doubt.”

            In rebuttal closing, the State argued that it was

“reasonable” for MM “to get the timing of the different

situations mixed up” “because of her situation she’s in.              Twelve-

year-old in the dark, being raped.”

C.    Jury deliberations

            On May 28, 2008, after the parties completed their


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closing arguments, the circuit court provided additional

instructions to the jury and discharged the alternate jurors.

After the twelve original jurors left the courtroom and entered

the jury room, the circuit court reminded the alternate jurors

not to discuss the case with anyone until they had been “finally

dismissed as alternate jurors[.]”        The circuit court further

instructed the alternate jurors as follows:
                [THE COURT:] First of all, you will be excused,
          and you can basically go about whatever it is that is
          your normal lifestyle from now on. If you have some
          time, I would like to meet all of you in chambers and
          express my personal thanks, but I also need you to
          leave your contact information with the bailiff before
          you leave. It may be, depending on the outcome of
          this trial, that you may be required for further fact
          finding as alternate jurors in some other proceedings
          in this case. We will not know that until we have the
          verdict. So for that reason, we need your contacted
          [sic] information so we can tell you what further
          services that may be required in the future. Okay?
          Any questions?
                THE ALTERNATE JURORS: (Shaking heads.)
                THE COURT: Okay, fine. So if you’ll see me in
          chambers, I’d like to thank all of you.

          The jury did not reach its verdict on May 28, 2008, and

resumed deliberations the next day.        At 11:30 a.m. on May 29,

2008, approximately 4 hours and 30 minutes into its

deliberations, the jury sent its Communication #1 to the circuit

court, stating, “We would like to speak to Judge Hara regarding

information that a juror has that has affected our

deliberations.”    Upon a request for elaboration from the circuit

court, the jury responded in its Communication #2:
                It was brought up that a juror has knowledge of
          the defendant having a prior charge or has been
          accused of another crime that some of the remainder of
          the jurors believe may have introduced a bias in that
          juror, and we are concerned that we have been
          compromised. We would like to speak to Judge Hara for


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          direction on how to proceed.

          The circuit court instructed the jury to suspend its

deliberations.    The circuit court then proceeded to voir dire

each juror outside of the presence of the other jurors, beginning

with the foreperson.     The foreperson, Juror Eight, explained that

Juror Nine had stated
          that she was affected by knowledge of a charge against
          [Bailey] for attempted murder or something of that
          nature. She didn’t elaborate into that. We stopped
          right away as soon as it was brought up. . . . [S]he
          stated that she had a hard time believing the piece of
          evidence that we were reviewing at the time. . . .
          She did not state anything further. We didn’t allow
          it to go any further.

          Juror Eight stated that he had no other knowledge of

any other charges against Bailey, that Juror Nine’s statements

would not affect his ability to be a fair and impartial juror in

this case, and that he could disregard Juror Nine’s statements

and base his decision solely on the evidence and the court’s

instructions.    On examination by defense counsel, Juror Eight

stated that the jurors had been reviewing Bailey’s interview with

Detective Artienda at the time Juror Nine made the statements.

          Juror Nine was then called and stated:
                I know what I did is wrong. Was just blurted
          out. And I wasn’t using that to cloud anybody’s mind.
          And it just came out and I’ll admit what I did.
                . . . .
                Well I just -- we were discussing -- I don’t
          know if I can say, we were discussing, um, basically a
          part of [] Bailey not knowing what had happened. And
          I was getting frustrated because everybody’s focus
          point was on that.
                . . . .
                And what I did say was that, “Maybe he does know
          what he’s doing or not because he’s been through that
          process before.” That’s what I said.
                . . . .
                And I said, “He’s been in trouble before.” And


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           then they questioned me again, “with what?” And I
           said, “From what I know, it was on a murder charge.”
           And then they asked me, you know, well what do I --
           what do I know -- if I know where he stands now. I
           said, “That I’m not sure.” And I know I was wrong for
           saying that.

           Juror Nine pointed out that she had explained to the

circuit court during jury selection, “that [she] knew he got into

trouble before and she somewhat knew about the case.”              However,

Juror Nine explained that “as time went by I did remember what

[the prior charge] was for.”        On examination by defense counsel,

Juror Nine stated that she “did say [to the other jurors] that

[she] was sure it was for a murder charge, and right there we all

ceased.”

           Juror One was called and stated that she had heard

Juror Nine’s statements, but that she “just kind of blocked it

out cause [she] didn’t want to hear.”         She stated that Juror Nine

“heard that he might be on parole, she’s not sure.            And something

about murder came up.      But she kind of mumbled that so [Juror One

was] not exactly sure.”      Juror One stated that she could still be

fair and impartial, she would base her decision solely on the

evidence and the law as instructed by the circuit court, and she

could disregard Juror Nine’s statements.

           Jurors Two, Three, Five, Six, Seven, Ten, Eleven, and

Twelve stated that they had heard Juror Nine’s statements,12 but

     12
            There was some variation in what the jurors recalled about Juror
Nine’s statements. For example, some of the jurors recalled that Juror Nine
stated Bailey had a prior charge for attempted murder, while others recalled
that Juror Nine stated Bailey had a prior charge for murder, and still others
recalled that she said Bailey had a prior conviction. One juror recalled that
“something about murder came up” and that Juror Nine stated Bailey was on

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could disregard them and decide the case solely on the evidence

and the law as instructed by the circuit court.            These jurors

also stated that they could still be fair and impartial.

            Juror Five noted that Juror Six
            seemed, um, I guess 1ike it would be hard for him to
            overlook it. I know that he was probably -- probably
            made the strongest response. I can’t remember exactly
            what he said. But I know he essentially just wanted
            to stop everything and knew that we couldn’t continue.
            And I know he said that it would be hard for him to
            not let it affect him. I believe he was the -- he had
            the strongest response.

            There was some ambivalence in Juror Four’s testimony as

to whether he could remain fair and impartial:
                  Q. Okay. [Juror Four], how about you, are you
            able to disregard what [Juror Nine] might have said
            and not have that play a part in your further
            deliberations in your decision as a juror in this
            case?
                  A. I don't think so.
                  Q. You don't think so?
                  A. No.
                  Q. Okay. So what she said would affect your
            decision in this case?
                  A. It wouldn’t change how I felt in the case
            but, you know, my -- what I thought my decision was,
            before she said that, remained the same.
                  Q. Okay. But my question is this --
                  A. Yes.
                  Q. -- can you disregard what she said and not
            have that affect your ability to be fair and impartial
            in this case? Can you make your decision based on
            your evaluation on the evidence in this case and the
            law that I gave you, and not consider her statements?
            Or would her statements now --
                  A. I'm not sure.
                  Q. -- have a result in your decision?
                  A. Yeah.
                  Q. You're not sure?
                  A. I'm not sure.

            However, on further questioning by defense counsel,



parole, while another juror recalled that Juror Nine had indicated Bailey was
on probation.
            Juror Nine, however, stated she told the other jurors that Bailey
had a prior “murder charge.” She further stated that she told the other
jurors that she did not know “where he stands now.”

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Juror Four stated that he could still keep an open mind and

potentially reevaluate his position on the case.           Juror Four

stated, “I think I can make an informed decision still.”            On

further questioning by the circuit court, Juror Four stated, “I

believe that I made a decision now that I could continue on and

make a decision without letting that affect me.”

            Juror Six stated that “at first [he] thought he

wouldn’t be able to” disregard Juror Nine’s comments, but that,

“after it sat in for awhile, I thought it doesn’t matter what she

said about it.”

            Juror Twelve stated that Juror Nine’s statements “ha[d]

an effect on me.    But I honestly believe that I can -- I can set

it aside.    I can’t say I didn’t hear it and didn’t make an effect

on me.”   Juror Twelve further stated that he could “separat[e]

that from all the rest of the evidence that’s been given.”

            At the conclusion of the voir dire, Bailey reserved

making any motions.     The circuit court allowed the parties “at

least a day or two” to consider whether Juror Nine should be

dismissed.    On June 2, 2008, Bailey orally moved for a mistrial,

on the ground that he was denied his right to a fair and

impartial jury as a result of Juror Nine’s statements.            Bailey

contended that the statements were prejudicial and commented on

his credibility.    Bailey further argued that the statements were

not harmless beyond a reasonable doubt because: (1) a juror

indicated during voir dire that there was a vote as to whether to


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notify the circuit court of Juror Nine’s statements, which

indicated that some of the jurors did not wish to disclose the

statements to the circuit court; (2) one of the jurors had “an

extremely emotional reaction” to the statements;13 (3) another

juror “expressed that [he] would not be able to put that aside at

first, and then later changed it[,] . . . [n]ot saying that he

could necessarily be fair, but saying that he could make an

informed decision”;14 and (4) Bailey was facing a possible life

sentence.    Bailey also argued that the circuit court could not

replace Juror Nine with an alternate juror under HRPP Rule 24(c).

            The State conceded that Juror Nine’s statements were

prejudicial.    However, the State argued that “the [c]ourt’s voir

dire of the other eleven jurors did indicate that they could

still render a fair and impartial verdict.”

            The circuit court denied Bailey’s motion for mistrial,

stating:
            Based on the [c]ourt’s voir dire of the Jury and their
            responses, and basically I think their fast response
            with respect to communicating with the [c]ourt as soon
            as they felt that there was some exposure to
            unpermitted information, that -- and the fact that
            they did cease deliberation after attempting to
            communicate with the Court through written
            communication, that the amount of prejudice, if any,
            was limited by that fairly quick response.
                  Also, based on the responses from each of the
            jurors it does not appear that what was revealed to
            them by [Juror Nine] at this point will affect the
            eleven other jurors. And the [c]ourt’s going to make
            that finding beyond a reasonable doubt. And find that
            any misconduct, if any, is harmless beyond a
            reasonable doubt and deny [Bailey’s] motion for a



     13
            This contention was likely in reference to Juror Six.

     14
            This contention was in reference to Juror Four.

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          mistrial.

          The circuit court dismissed Juror Nine and seated an

alternate juror in her place.       The circuit court confirmed that

the alternate juror had not been exposed to any media accounts

relating to the case, had not discussed the case with anyone, and

felt she could “substitute in” for another juror.           The circuit

court did not ask the original eleven jurors whether they felt

that they could disregard their prior deliberations and begin

their deliberations anew.      The circuit court instructed the

original eleven jurors to “not consider [Juror Nine’s] statements

during your deliberations for any reason or purpose.”            The

circuit court then instructed the entire reconstituted jury “to

disregard [its] prior deliberations and to start [its]

deliberations anew.”     Finally, the circuit court instructed the

jury to “elect one of your members as a foreperson” before

beginning deliberations.      The jury then recommenced its

deliberations.

          It appears that the reconstituted jury deliberated for

approximately three days.      On the third day of its deliberations,

the jury sent the circuit court its Communication #3, which read:
                We have 2 questions. 1) If we cannot decide on
          a verdict on one or more counts, does that mean that
          any counts that we can decide upon, are thrown out?
          2) Can a juror refuse to vote on a charge?

          In response, the circuit court instructed the jury:

“The jury may at any time during its deliberations return a

verdict or verdicts with respect to one or more counts to which


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you can unanimously agree even though you may not be able to

reach a unanimous verdict as to all counts.”

             The jury returned its verdict on June 5, 2008, finding

Bailey guilty on four counts of the included offense of attempted

sexual assault in the first degree.

E.   Post-trial proceedings and judgment

             On June 12, 2008, Bailey filed his motion for new

trial.     In his memorandum in support of the motion, Bailey

argued, inter alia, that Juror Nine’s comments were prejudicial

and not harmless beyond a reasonable doubt.            He also contended

that the circuit court erred in relying on the jurors’ statements

during voir dire because the jurors had “committed their time and

considerable effort as jurors in this case” and “could not have

responded in any other way but to say they would continue” to be

fair.     The State argued that any prejudice was cured by the

court’s instructions to the reconstituted jury.

             On June 24, 2008, during a hearing on Bailey’s motion

for new trial, Bailey argued that, pursuant to State v. LaRue, 68

Haw. 575, 722 P.2d 1039 (1986), and Hawai#i Rules of Evidence

(HRE) Rule 606(b),15 the circuit court could not inquire into the

     15
             HRE 606(b) provides:

                   Inquiry into validity of verdict or indictment.
             Upon an inquiry into the validity of a verdict or
             indictment, a juror may not testify concerning the
             effect of anything upon the juror’s or any other
             juror’s mind or emotions as influencing the juror to
             assent to or dissent from the verdict or indictment or
             concerning the juror’s mental processes in connection
             therewith. Nor may the juror’s affidavit or evidence
             of any statement by the juror indicating an effect of

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mental processes of the jurors by asking them whether they could

be fair and impartial despite Juror Nine’s statements.               In

addition, Bailey orally renewed his motion for judgment of

acquittal based on insufficiency of the evidence.

            The circuit court denied Bailey’s motion for a new

trial.16   The circuit court’s July 9, 2008 Findings of Fact,

Conclusions of Law and Order Denying Defendant’s Motion for New

Trial provided in relevant part as follows:
                               FINDINGS OF FACT
                   . . . .
                   7. Each juror stated although they had heard
            what was said, he or she could be a fair and impartial
            juror.
                   8. On June 2, 2008, the juror who made the
            statement was discharged and an alternate took her
            place.
                   . . . .
                              CONCLUSIONS OF LAW
                   1. Counsel had been given adequate opportunity
            to questions [sic] each juror regarding the
            statement(s) made by the discharged juror.
                   2. The [c]ourt was convinced that the remaining
            eleven jurors could be fair and impartial.

            On July 28, 2009, Bailey filed another motion for

judgment of acquittal.      In his memorandum in support of the

motion, Bailey argued that the jury must have rejected MM’s

testimony regarding penetration because it found him not guilty

on the sexual assault offenses.        Bailey argued that the remaining

alleged acts (undressing MM, rubbing her with oil, and massaging

her) were legally insufficient to demonstrate specific intent to



            this kind be received.

      16
            The circuit court did not specifically address the renewed motion
for judgment of acquittal, but stated that the motion was “subsumed under the
[c]ourt’s decision as to the new trial.”

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sexually assault MM.

           The circuit court denied the motion for judgment of

acquittal at an August 5, 2009 hearing, stating that:
           . . . [MM] may have come across to the jury as someone
           who may have been naive as to what was occurring. And
           it is I think within the [j]ury’s province to have
           either rejected some of her testimony and accepted
           some of it. And if they rejected the testimony as to
           the actual penetration, but accepted the fact there
           was apparent preparation for the sex acts alleged in
           the indictment, then certainly there was sufficient
           evidence for the [j]ury to convict [Bailey].

           On December 10, 2009, the circuit court issued its

Judgment of Conviction and Sentence, convicting Bailey on four

counts of attempted sexual assault in the first degree.             The

circuit court sentenced Bailey to a 20-year term of incarceration

on each count, “to be served concurrently with each other,

consecutive to the sentence imposed in First Circuit Court in Cr.

No. 52830.”    Bailey timely filed his notice of appeal on

January 5, 2010.

B.   Appeal

           In his opening brief, Bailey raised five points of

error, three of which are relevant here.          Specifically, Bailey

asserted that the circuit court erred in (1) denying his motion

for new trial because Juror Nine’s misconduct tainted the jury

and prejudiced his constitutional right to a fair trial; (2)

instructing the jury on the included offense of attempted sexual

assault in the first degree because there was no basis in the

evidence for the instruction; and (3) denying his motion for

judgment of acquittal because there was not substantial evidence

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to support his convictions.17

            In its Answering Brief, the State argued that (1) the

circuit court properly denied Bailey’s motion for new trial

because the voir dire indicated that Juror Nine’s comments had no

impact on the impartiality of the other jurors; (2) there was a

rational basis in the evidence for instructing the jury on the

included offense of attempted sexual assault in the first degree;

and (3) the testimony presented at trial constituted substantial

evidence to support Bailey’s convictions.

            In his Reply Brief, Bailey argued that there was not

substantial evidence to support his convictions because “[t]here

was absolutely no evidence presented that [he] had attempted, but

not completed the alleged acts of sexual penetration.”             Bailey

similarly argued that the circuit court erred in instructing the

jury on the included offenses of attempted sexual assault in the

first degree because there was “no rational basis in the evidence

for the jury to acquit [him] of the charged offenses and convict

him of attempt to commit the charged offenses.”

            The ICA held that the circuit court did not clearly err

in denying Bailey’s motion for a new trial.           Bailey, 2011 WL

2520275, at *1-3.     The ICA noted that “[e]ach of the jurors

testified that they could disregard what Juror [Nine] had said



      17
            As noted supra, we do not address Bailey’s arguments that the
circuit court erred in seating an alternate juror after deliberations had
begun, and in denying his motion for mistrial based on the locking of the
courtroom doors.

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about Bailey’s prior criminal conduct and make their decision

based on the facts.”       Id. at *2.      The ICA further noted that (1)

the circuit court dismissed Juror Nine; (2) the circuit court

instructed the remaining jurors to disregard Juror Nine’s

statements and to begin deliberations anew; and (3) the evidence

against Bailey was overwhelming.           Id. at *2-3.

            In addition, the ICA held that the circuit court

properly instructed the jury on the included offense of attempted

sexual assault in the first degree because “the witness

testimony” supported the instruction.           Id. at *4.    The ICA also

held that there was sufficient evidence to support Bailey’s

convictions based on the testimony of MM, KM, and Uncle, and

statements Bailey made to Uncle and Detective Artienda

immediately following the incident with MM.            Id. at *1.     The ICA

concluded that “[t]he fact that the jurors did not believe

everything that the witnesses testified to does not prevent them

from finding Bailey guilty of a lesser included offense.”               Id.

            Accordingly, the ICA affirmed the circuit court’s

December 10, 2009 Judgment of Conviction and Sentence.               Id. at

*5.   The ICA entered its judgment on May 16, 2011.            Bailey timely

filed his application for a writ of certiorari on August 10,

2011, in which he raises the following questions:
                  1. Whether the ICA gravely erred in holding that
            there was substantial evidence to support Bailey’s
            convictions?
                  2. Whether the ICA gravely erred in holding that
            the circuit court did not abuse its discretion in
            denying Bailey’s motion for a new trial based on juror
            misconduct?

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                 3. Whether the ICA gravely erred in holding that
           the circuit court’s violation of [Hawai#i Rules of
           Penal Procedure (HRPP)] Rule 24(c) by seating an
           alternate juror after deliberations had already
           commenced was harmless beyond a reasonable doubt?
                 4. Whether the ICA gravely erred in holding that
           there was a rational basis for instructing the jury on
           the included offenses of attempted sexual assault in
           the first degree?
                 5. Whether the ICA gravely erred in holding that
           the locking of the courtroom doors during voir dire
           did not violate Bailey’s constitutional right to a
           public trial?

(Internal brackets omitted).

           The State did not file a response.

                        II.   Standards of Review

A.   Motion for new trial

           In the instant case, the ICA held that the circuit

court’s “conclusion that Bailey was not deprived of a fair trial

by twelve impartial jurors . . . is [] reviewed under the clearly

erroneous standard.”      Bailey, 2011 WL 2520275, at *3 (emphasis

added) (citing State v. Furutani, 76 Hawai#i 172, 180, 873 P.2d

51, 59 (1994)).     However, both Bailey and the State have argued

that the circuit court’s decision on Bailey’s motion for a new

trial should be reviewed for abuse of discretion.

           Furutani can be read to suggest that both the clearly

erroneous and abuse of discretion standards apply to our review

of a circuit court’s decision on a motion for new trial.             Compare

76 Hawai#i at 180, 873 P.2d at 59 (“[T]he ultimate question in

the present appeal is whether the circuit court committed an

abuse of discretion when it concluded that ‘possible’ jury

misconduct at voir dire, in combination with jury misconduct


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during deliberations, deprived Furutani of a trial by twelve fair

and impartial jurors.”) (emphasis added) with id. at 185, 873

P.2d at 64 (“[W]e hold that the circuit court’s COL that ‘the

possible misconduct at voir dire . . . deprived [Furutani] of a

trial by twelve fair and impartial jurors’ is not clearly

erroneous.”) (emphasis added) (some brackets added and some in

original).   However, this court has repeatedly stated that a

trial court’s decision on a motion for new trial or a motion for

mistrial is reviewed for abuse of discretion.          See, e.g.,

Furutani, 76 Hawai#i at 178-79, 873 P.2d at 57-58; State v. Kim,

103 Hawai#i 285, 290, 81 P.3d 1200, 1205 (2003); State v. Lagat,

97 Hawai#i 492, 495, 40 P.3d 894, 897 (2002).         This court has

explained:
          As a general matter, the granting or denial of a
          motion for new trial is within the sound discretion of
          the trial court and will not be disturbed absent a
          clear abuse of discretion. The same principle is
          applied in the context of a motion for new trial
          premised on juror misconduct. The trial court abuses
          its discretion when it clearly exceeds the bounds of
          reason or disregards rules or principles of law or
          practice to the substantial detriment of a party
          litigant.

State v. Yamada, 108 Hawai#i 474, 478, 122 P.3d 254, 258 (2005)

(citing Furutani, 76 Hawai#i at 178-79, 873 P.2d at 57-58).

          Moreover,
          . . . Because the right to an impartial jury in a
          criminal trial is so fundamental to our entire
          judicial system, it therefore follows that a criminal
          defendant is entitled to twelve impartial jurors.
          Thus, the trial court must grant a motion for new
          trial if any member (or members) of the jury was not
          impartial; failure to do so necessarily constitutes an
          abuse of discretion.

Furutani, 76 Hawai#i 172, 179, 873 P.2d 51, 58 (1994) (citations,

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quotation marks and brackets omitted).

           Accordingly, we review the circuit court’s decision on

Bailey’s motion for a new trial for abuse of discretion.

B.   Jury instructions on included offenses

           This court has stated:
           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.

State v. Kassebeer, 118 Hawai#i 493, 504, 193 P.3d 409, 420

(2008) (internal quotation marks, citations, and brackets

omitted) (quoting State v. Mainaaupo, 117 Hawai#i 235, 247, 178

P.3d 1, 13 (2008)).

           Moreover,
           trial courts must instruct juries as to any included
           offenses when “there is a rational basis in the
           evidence for a verdict acquitting the defendant of the
           offense charged and convicting the defendant of the
           included offense[.]”

State v. Haanio, 94 Hawai#i 405, 413, 16 P.3d 246, 254 (2001)

(quoting HRS § 701-109(5) (1993)).

C.   Sufficiency of the evidence

           We review the sufficiency of evidence on appeal as

follows:
           [E]vidence adduced in the trial court must be
           considered in the strongest light for the prosecution
           when the appellate court passes on the legal
           sufficiency of such evidence to support a conviction;
           the same standard applies whether the case was before
           a judge or jury. The test on appeal is not whether
           guilt is established beyond a reasonable doubt, but

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            whether there was substantial evidence to support the
            conclusion of the trier of fact.

State v. Kalaola, 124 Hawai#i 43, 49, 237 P.3d 1109, 1115 (2010)

(brackets in original) (quoting State v. Richie, 88 Hawai#i 19,

33, 960 P.2d 1227, 1241 (1998)).

            “‘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.”         Id. (quoting Richie, 88

Hawai#i at 33, 960 P.2d at 1241).

                             III.   Discussion

            For the reasons set forth below, we hold that the

circuit court abused its discretion in denying Bailey’s motion

for new trial because Juror Nine’s statements substantially

prejudiced Bailey’s right to a fair trial by twelve impartial

jurors.   We further hold that the jury was properly instructed on

the included offense of attempted sexual assault in the first

degree, and that there was substantial evidence to support

Bailey’s conviction on all four counts.          Accordingly, we vacate

the ICA’s judgment, and the circuit court’s judgment of

conviction and sentence, and remand for a new trial on the four

counts of attempted sexual assault in the first degree.18

      18
            Although we do not address Bailey’s argument regarding HRPP Rule
24(c), we note that Rule 24(c) has been amended since Bailey’s trial, and now
allows alternate jurors to “be held in recess until a verdict is received” and
to “replace[] a regular juror after deliberations have begun[.]” Accordingly,
we take this opportunity to caution the trial courts against ex parte
communications with alternate jurors who have not been finally discharged.
See State v. Estrada, 69 Haw. 204, 227, 738 P.2d 812, 827-28 (1987) (noting,
where the judge entered the jury room without the presence or consent of

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A.    Juror Nine’s statements violated Bailey’s right to a fair
      and impartial jury

            Bailey argues that the circuit court abused its

discretion in denying his motion for new trial, which was made in

relation to Juror Nine’s statements, because (1) the evidence

against Bailey was not overwhelming; (2) the circuit court was

not permitted to consider the juror’s responses during voir dire

regarding how they were affected by the statements; (3) “it was

unavoidable” that the statements would “rouse the jury to

overmastering hostility”; and (4) the circuit court’s instruction

to disregard the statements was insufficient to cure any

prejudice.

            This court has explained:
                  The sixth amendment to the United States
            Constitution and article I, section 14 of the Hawai#i
            Constitution guarantee the criminally accused a fair
            trial by an impartial jury. If any juror was not
            impartial, a new trial must be granted. However, not
            all juror misconduct necessarily dictates the granting
            of a new trial. A new trial will not be granted if it
            can be shown that the jury could not have been
            influenced by the alleged misconduct.

Kim, 103 Hawai#i at 290-91, 81 P.3d at 1205-06 (citations and

footnotes omitted).

            This court has articulated the following “conceptual

framework” for analyzing a claim that juror misconduct prejudiced



defense counsel, that ex parte communications with jurors “are strictly
prohibited,” but declining to adopt a per se rule that such communications are
reversible error).
            In the instant case, the circuit court judge asked all of the
alternate jurors to meet with him in chambers after they were discharged. See
supra, pages 22-23. However, the record does not reflect whether or to what
extent the alternates did, in fact, meet with the judge in chambers.


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a defendant’s right to a fair trial19:
                  [W]hen a defendant in a criminal case claims a
            deprivation of the right to a fair trial by an
            impartial jury, the initial step for the trial court
            to take is to determine whether the nature of the
            alleged deprivation rises to the level of being
            substantially prejudicial. If it does not rise to
            such a level, the trial court is under no duty to
            interrogate the jury. And whether it does rise to the
            level of substantial prejudice is ordinarily a
            question committed to the trial court’s discretion.
                  Where the trial court does determine that such
            alleged deprivation is of a nature which could
            substantially prejudice the defendant’s right to a
            fair trial, a rebuttable presumption of prejudice is
            raised. The trial judge is then duty bound to further
            investigate the totality of circumstances surrounding
            the alleged deprivation to determine its impact on
            jury impartiality. The standard to be applied in
            overcoming such a presumption is that the alleged
            deprivation must be proved harmless beyond a
            reasonable doubt.
                  The defendant bears the initial burden of making
            a prima facie showing of a deprivation that could
            substantially prejudice his or her right to a fair
            trial by an impartial jury. But once a rebuttable
            presumption of prejudice is raised, the burden of
            proving harmlessness falls squarely on the
            prosecution.

Furutani, 76 Hawai#i at 180-81, 873 P.2d at 59-60 (formatting

altered) (citations, ellipses, internal quotation marks and

brackets omitted).

            In the instant case, Bailey met his burden of “making a

prima facie showing of a deprivation that could substantially

prejudice his or her right to a fair trial by an impartial jury.”

See id.   The voir dire of Juror Nine indicates that her

statements led to a brief discussion by the jurors concerning

Bailey’s prior criminal record, which had been excluded from the



      19
            Although this framework has been utilized in cases in which the
court was advised of alleged juror misconduct after the jury had returned its
verdict, see, e.g., Furutani, 76 Hawai#i at 177, 873 P.2d at 56, it is equally
applicable in the circumstances of the instant case, where the issue of juror
misconduct was raised during jury deliberations.

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evidence pursuant to Bailey’s motion in limine.            For example,

Juror Nine testified that, when she stated Bailey had “been in

trouble before,” other jurors asked her “with what?” and whether

she knew where Bailey “stands now.”20         In addition, Juror Nine’s

testimony indicates that her statements were used as a

circumstance against Bailey.        Specifically, Juror Nine told the

other jurors that she did not believe Bailey’s statement to

Detective Artienda that he did not know what had happened, since

he had “been in trouble before.”          See id. at 185, 873 P.2d at 64

(noting that a legal presumption of prejudice does not arise from

a juror’s “mere verbalization of or casual reference to” a

defendant’s failure to testify and that, in order to constitute

substantial prejudice, such statements “must amount to a

discussion by the jurors or be used as a circumstance against the

accused”).

            Accordingly, the circuit court’s decision to

investigate the impact of Juror Nine’s statements on juror

impartiality was proper.       See id. at 181, 873 P.2d at 60; see

also State v. Keliiholokai, 58 Haw. 356, 357-60, 569 P.2d 891,

893-96 (1977) (citation omitted) (noting that evidence of the

defendant’s prior convictions for robbery would not have been

admissible at trial due to its prejudicial nature, and that the

circuit court accordingly erred in failing to voir dire the jury


      20
            However, other jurors indicated that they “stopped right away as
soon as [Bailey’s prior criminal record] was brought up” and that they “didn’t
allow it to go any further.”

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regarding whether they had read a newspaper article that

discussed the convictions).      Upon its investigation, the circuit

court concluded that Juror Nine’s statements were harmless beyond

a reasonable doubt.     However, for the reasons set forth below, we

conclude the State did not meet its burden of proving

harmlessness.   See Furutani, 76 Hawai#i at 185, 873 P.2d at 64.

          The determination of whether Juror Nine’s statements

were harmless beyond a reasonable doubt “requires an examination

of the record and a determination of whether there is a

reasonable possibility that the error complained of might have

contributed to the conviction.”       See State v. Tuua, 125 Hawai#i

10, 13, 250 P.3d 273, 276 (2011) (citation and quotation marks

omitted) (defining the harmless beyond a reasonable doubt

standard).   In circumstances involving an alleged deprivation of

the right to an impartial jury, we consider the “totality of the

circumstances surrounding the alleged deprivation to determine

its impact on jury impartiality.”        Furutani, 76 Hawai#i at 181,

873 P.2d at 60 (citation omitted).

          Juror Nine’s comment that she did not believe Bailey’s

statement to Detective Artienda due to his criminal record

indicates that Juror Nine was prejudiced against Bailey and could

not continue as a fair and impartial juror.          Juror Nine’s

statements were also highly prejudicial and inflammatory in

nature, and were therefore likely to impact the impartiality of

the remaining jurors.     First, Juror Nine’s statements indicated


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that, because of his criminal record, Bailey was not credible in

stating to Detective Artienda that he did not recall what

happened with MM.     In addition, Juror Nine’s statements indicated

that Bailey had been charged with and/or convicted of murder.

            This court has recognized in other contexts that

inadvertent and inadmissible statements concerning prior murder

offenses can be “so prejudicial as to deprive the defendant of

his constitutional right to a fair trial.”          State v. Pokini, 57

Haw. 17, 21, 548 P.2d 1397, 1399-1400 (1976); see also State v.

Hamala, 73 Haw. 289, 291, 834 P.2d 275, 276 (1992) (noting, in

evaluating a double jeopardy issue, that this court had

previously concluded that testimony that the defendant had

previously shot two people “was highly prejudicial”), overruled

on other grounds by State v. Rogan, 91 Hawai#i 405, 423 n.10, 984

P.2d 1231, 1249 n.10 (1999).21       For example, in Pokini, this

court vacated Pokini’s conviction for conspiracy to murder and

remanded for a new trial, where a prejudicial transcript was

erroneously admitted into evidence over defense counsel’s

objection.    57 Haw. at 18, 25, 548 P.2d at 1398, 1402.           In the

transcript, an accomplice testified that he had seen Pokini carry

out two other murders, and that he and Pokini had planned to

murder other witnesses.       Id. at 19-20, 548 P.2d at 1399.        The



      21
            Although it appears that the court did not voir dire the jury on
the effect of the prejudicial statements in these cases, and these cases did
not involve juror misconduct, they nonetheless demonstrate that this court has
recognized that evidence concerning involvement in prior murders may be
substantially prejudicial.

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transcript also contained other detailed references to these

crimes.     Id. at 21, 548 P.2d at 1399.      This court stated that the

crimes referenced in the transcript “may generate insurmountable

prejudice to the cause of the accused,” and “were so prejudicial

as to deprive the defendant of his constitutional right to a fair

trial.”22    Id. at 21, 548 P.2d at 1399-1400 (quotation marks and

citations omitted).

              Although this court has held that the erroneous

admission of prior criminal conduct may be harmless if the trial

court gives a cautionary instruction and the evidence against the

defendant is overwhelming, see, e.g., State v. Loa, 83 Hawai#i

335, 354, 926 P.2d 1258, 1277 (1996), this court has also

recognized that such an instruction may be insufficient to cure

the effect of improper evidence that is highly prejudicial,

Hamala, 73 Haw. at 291-92, 834 P.2d at 276 (recounting this

court’s prior unpublished memorandum opinion, which vacated the

defendant’s conviction on second degree murder due to prejudicial

testimony concerning previous murders allegedly committed by the

defendant, and noting that “the testimony regarding prior bad

acts elicited by the prosecutor was highly prejudicial and that


      22
            Although Pokini involved a prosecution witness and, as noted by
this court, “[t]he prosecutor was fully aware of the contents of the
transcript,” id. at 22, 548 P.2d at 1400, this court’s holding that evidence
of prior convictions “may generate insurmountable prejudice” has been applied
in other circumstances. See, e.g., State v. Kahinu, 53 Haw. 536, 549, 498
P.2d 635, 643-44 (1972) (“Such wielding of the ‘evidential harpoon’ may compel
the trial court to declare a mistrial, whether it appears that the testimony
was deliberately induced by the prosecutor, or through the overzealousness of
the police witness[.]”) (citations omitted); State v. Keliiholokai, 58 Haw. at
360, 569 P.2d at 895-96 (concluding that a defendant may suffer prejudice due
to newspaper articles concerning prior convictions).

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no curative instruction could suffice”).

            In the instant case, although there was substantial

evidence to support Bailey’s conviction, there were also

inconsistencies in the testimony of MM, KM, and Uncle, and

arguable inconsistencies between the testimony of MM and the

physical evidence.      See infra Part III.C.      Accordingly, the

evidence was not strong enough to overcome the substantial

prejudice created by Juror Nine’s statements, even though the

circuit court advised the remaining jurors to disregard Juror

Nine’s statements in resuming their deliberations.            See Hamala,

73 Haw. at 291-92, 834 P.2d at 276; cf. Loa, 83 Hawai#i at 354,

926 P.2d at 1277.

            In addition, the voir dire indicates that Juror Nine’s

statements had an effect on several of the remaining jurors.23

For example, Juror Four initially stated that he was “not sure”

whether he could disregard what Juror Nine said.            And Juror

Twelve stated that he “can’t say [he] didn’t hear it and [it]

didn’t make an effect on [him.]”          Although each of the jurors



      23
            Bailey argues that this court cannot consider the jurors’
statements made during voir dire regarding their ability to fairly and
impartially decide the case. In support of this argument, Bailey cites to
Kim, 103 Hawai#i at 291, 81 P.3d at 1206, for the proposition that “the court
cannot consider the jurors’ testimony as to the effect of the improper
statement upon them.” (Citation and quotation marks omitted). This statement
in Kim concerned the interpretation of Hawai#i Rules of Evidence (HRE) Rule
606(b). However, the plain language of HRE 606(b) limits only what a court
may consider in inquiring into the “validity of [a] verdict or indictment.”
In the instant case, the circuit court conducted voir dire prior to the jurors
returning their verdicts. Accordingly, the circuit court did not inquire into
the “validity of [a] verdict or indictment,” but rather inquired whether the
jurors could remain fair and impartial going forward, and the prohibition set
forth in HRE 606(b) is inapplicable.

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ultimately stated that they could remain fair and impartial,

their initial reactions reflect the highly prejudicial nature of

Juror Nine’s statements.      Moreover, Juror Six recalled that Juror

Nine stated, “I’ve got some inside information that you guys

don’t have and that you should know about.”            The nature of this

statement may have led the other jurors to believe the

information Juror Nine possessed was particularly credible or

reliable.

            Cases from other jurisdictions further support the

conclusion that the circuit court abused its discretion in

denying Bailey’s motion for new trial.         For example, in Marshall

v. United States, 360 U.S. 310, 311-13 (1959), the United States

Supreme Court held that a new trial should have been granted,

where “a substantial number of jurors” were exposed to newspaper

articles detailing the defendant’s prior convictions.            The Court

noted that the trial judge conducted an inquiry, and determined

that seven jurors had seen the articles.         Id. at 312.     “Each of

the seven told the trial judge that he would not be influenced by

the news articles, that he could decide the case only on the

evidence of record, and that he felt no prejudice against

petitioner as a result of the articles.”         Id.    Accordingly, the

trial judge denied the defendant’s motion for mistrial.            Id.

            In determining that a new trial should have been

granted, the Court recognized that “[t]he trial judge has a large

discretion in ruling on the issue of prejudice resulting from the


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reading by jurors of news articles concerning the trial.”              Id.

(citation omitted).      However, the Court noted that the jurors

were exposed to “information of a character which the trial judge

ruled was so prejudicial it could not be directly offered as

evidence.”    Id.     Accordingly, the Court reversed the defendant’s

conviction and granted a new trial pursuant to the court’s

supervisory power.      Id. at 313; see also State v. Yurk, 638 P.2d

921, 927-28 (Kan. 1982) (reversing and remanding for a new trial,

where a single juror read a newspaper article that detailed the

defendant’s prior criminal record and admitted that “the prior

charges and convictions ‘bothered’ him and might affect his

judgment[,]” even though he eventually stated he thought he could

render an impartial decision); State v. Craven, 298 N.E.2d 597,

599-600 (Ohio 1973) (reversing and remanding for a new trial,

where all of the members of the jury read a prejudicial newspaper

report concerning the defendant’s criminal record, even though

each juror indicated the report would not have an effect on the

verdict).

            In sum, Juror Nine’s statements concerned a highly

inflammatory and prejudicial prior crime that had been ruled

inadmissible.       Each of the jurors admitted to hearing at least

part of Juror Nine’s statements.24        Their responses during voir


      24
             This factor distinguishes this case from State v. Samonte, 83
Hawai#i 507, 527, 928 P.2d 1, 21 (1996), where this court held that an
allegedly tainted jury could nonetheless be impartial. There, two jurors
received anonymous letters at their homes during deliberations, urging them to
find the defendant guilty and informing them that the defendant had previously
been in prison. Id. at 524, 928 P.2d at 18. However, upon examination by the

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dire indicated that several of the jurors initially viewed the

statement as so prejudicial as to affect their impartiality.

And, although the circuit court instructed the jury to disregard

the statements, the evidence here was not so overwhelming as to

outweigh the prejudice of Juror Nine’s statements.            When viewed

alongside the nature of the evidence presented at trial and the

statements of some of the jurors during voir dire, Juror Nine’s

statements were insurmountably prejudicial.

            We conclude, based on the totality of the

circumstances, that there is a “reasonable possibility” that

Juror Nine’s statements contributed to Bailey’s conviction.                 See

Furutani, 76 Hawai#i at 181, 873 P.2d at 60; Tuua, 125 Hawai#i at

13, 250 P.3d at 276.      Accordingly, Juror Nine’s statements were

not harmless beyond a reasonable doubt.          See id. (holding that,

once a rebuttable presumption of prejudice is raised, the

prosecution bears the burden of showing the alleged deprivation

was harmless beyond a reasonable doubt).          Therefore, the circuit

court abused its discretion in denying Bailey’s motion for a new

trial.   Cf. Yamada, 108 Hawai#i at 482, 122 P.3d at 262 (holding

that the circuit court abused its discretion in granting motion


trial court, each of the two jurors indicated that they had not and would not
communicate with other jurors concerning the letters. Id. at 524-26, 928 P.2d
at 18-20. Each of the two jurors also agreed that they could base their
decisions only on the evidence, and could disregard the letters during their
deliberations. Id. Based on the totality of the circumstances, this court
concluded that the “influence of the letters on the jury was harmless beyond a
reasonable doubt.” Id. at 527, 928 P.2d at 21.
            In contrast, in the instant case, Juror Nine informed all of the
other jurors that Bailey had been charged with and/or convicted of murder,
and, according to Juror Nine’s account, a brief discussion of Bailey’s prior
criminal record ensued.

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for new trial based on juror misconduct, because the misconduct

was harmless beyond a reasonable doubt).

B.    The jury was properly instructed on the included offense of
      attempted sexual assault in the first degree

            Bailey argues that the circuit court erred in

instructing the jury on attempted sexual assault in the first

degree because “[t]here was no ambiguity in the witness’ [sic]

testimony by which the jury could rationally conclude that Bailey

had not sexually penetrated MM, but that he had taken a

substantial step in a course of conduct to culminate his sexual

penetration of MM.”      Accordingly, Bailey argues, there was no

“rational basis in the evidence” for the instruction.             Id.

Bailey further argues that the ICA’s reliance on State v.

Behrendt, 124 Hawai#i 90, 237 P.3d 1156 (2010), is misplaced.

            This court has held that “trial courts must instruct

juries as to any included offenses when ‘there is a rational

basis in the evidence for a verdict acquitting the defendant of

the offense charged and convicting the defendant of the included

offense[.]’”25    State v. Haanio, 94 Hawai#i 405, 413, 16 P.3d 246,

254 (2001) (quoting HRS § 701-109(5) (1993)).           In Haanio, the

defendant was charged with robbery in the first degree, but was

found guilty of the included offense of robbery in the second



      25
            Attempted sexual assault in the first degree is an included
offense of sexual assault in the first degree pursuant to HRS § 701-109(4),
which provides that “[a] defendant may be convicted of an offense included in
an offense charged in the indictment or the information. An offense is so
included when . . . [i]t consists of an attempt to commit the offense charged
or to commit an offense otherwise included therein[.]” (Emphasis added).

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degree.   Id. at 407, 16 P.3d at 248.       On appeal, the defendant

argued, inter alia, that it was error to instruct the jury on

robbery in the second degree because, “if the prosecution’s

witnesses were to be believed,” then the defendant’s action could

only be considered “intentional,” as required on a charge of

robbery in the first degree, and not “reckless,” as required on a

charge of robbery in the second degree.         Id. at 410, 16 P.3d at

251 (brackets and internal quotation marks omitted).

           This court concluded that the jury instruction was

justified.   Id. at 413, 16 P.3d at 254.        In so doing, this court

noted that there was evidence that the defendant may have acted

recklessly in inflicting injuries upon the complaining witness.

Id. at 417, 16 P.3d at 258.      Specifically, this court noted that

it reasonably could be inferred that the defendant “was under the

influence of intoxicating liquor at the time of the incident[,]”

and that he therefore “may have possessed a reckless, rather than

an intentional, state of mind with respect to his conduct.”                Id.

This court concluded that the trier of fact “could determine such

evidence was of greater weight than evidence supporting the

charge that [the defendant] acted intentionally[,]” and thus

there was a rational basis in the evidence for giving the lesser

included offense instruction.       Id.

           In Behrendt, this court held that the evidence was

sufficient to support giving an instruction on the lesser

included offense of sexual assault in the third degree, although


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the evidence that was presented was of sexual penetration, which

would constitute sexual assault in the first degree.            124 Hawai#i

at 109-10, 237 P.3d at 1175-76.       This court reasoned:
           a rational juror could have inferred that there was
           “sexual contact” prior to the penetration, i.e., that
           there was “touching” of “the sexual or other intimate
           parts” of [the complaining witness], such as [the
           complaining witness’s] genitalia, buttocks, or other
           intimate parts, either directly or through clothing,
           or that [the complaining witness] touched Behrendt’s
           “sexual or other intimate parts.” This testimony,
           therefore, provided a rational basis to instruct the
           jury on sexual assault in the third degree, and, when
           considered in the strongest light for the prosecution,
           was also sufficient to sustain Behrendt’s convictions.

Id. at 110, 237 P.3d at 1176 (citations omitted).

           In the instant case, a rational juror could have

inferred that Bailey attempted to commit each of the alleged acts

of sexual penetration, but did not succeed in doing so.             Although

MM and Sandino testified to acts of sexual penetration, the jury

was free to reject this testimony.        See State v. Kaleohano, 99

Hawai#i 370, 376, 56 P.3d 138, 144 (2002) (“[I]t is for the

[finder of fact] to assess the credibility of witnesses . . . and

it may accept or reject such testimony in whole or in part.”)

(citation and quotation marks omitted) (ellipsis in original).

Moreover, as discussed in detail infra, inconsistencies in the

testimony, and between MM’s testimony and the physical evidence,

may have led the jury to question whether the acts of sexual

penetration had occurred.

           Accordingly, there was a rational basis in the evidence

for an instruction on attempted sexual assault in the first

degree.   See Behrendt, 124 Hawai#i at 110, 237 P.3d at 1176.

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C.   There was substantial evidence to support Bailey’s
     convictions on attempted sexual assault in the first degree

           Bailey argues that there was not substantial evidence

to support his convictions because (1) the testimony of the

State’s witnesses’ was contradictory; (2) MM’s testimony was

contradicted by “objective physical evidence”; (3) the police

could have, but did not, “utilize DNA testing that could have

excluded Bailey”; and (4) the jury must have rejected MM’s and

Uncle’s testimony relating to penetration, and there was

therefore no basis on which the jury could have concluded Bailey

intended to commit “each of [the] specific acts” of attempted

sexual assault.     For the reasons set forth below, Bailey’s

arguments are without merit.

           Attempted sexual assault in the first degree is defined

by HRS §§ 705-500 and 707–730(1)(b).         HRS § 705-500(1)(b)

provides that   “ [a]   person is guilty of an attempt to commit a

crime if the person . . . . [i]ntentionally engages in conduct

which, under the circumstances as the person believes them to be,

constitutes a substantial step in a course of conduct intended to

culminate in the person’s commission of the crime.”            HRS § 707-

730(1)(b) provides that “[a] person commits the offense of sexual

assault in the first degree if . . . [t]he person knowingly

engages in sexual penetration with another person who is less

than fourteen years old[.]”

           Accordingly, in order for Bailey to be found guilty of

attempted sexual assault in the first degree, the State was

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required to prove that (1) Bailey intentionally engaged in

conduct; (2) under the circumstances as Bailey believed them to

be, the conduct constituted a substantial step in a course of

conduct; and (3) Bailey intended that course of conduct to

culminate in sexual penetration with MM.         See §§ 705-500(1)(b)

and 707–730(1)(b).    Additionally, because the jury was instructed

on the offense of attempted sexual assault in the first degree in

relation to four specific types of sexual penetration, i.e.,

penile penetration, digital penetration, cunnilingus, and

fellatio, the State was required to prove that Bailey’s conduct

constituted a substantial step in a course of conduct intended to

culminate in each type of sexual penetration with MM.

          When viewed in the light most favorable to the State,

the evidence is sufficient to support Bailey’s convictions.                MM

testified that Bailey sexually assaulted her in each of the four

ways alleged.   KM testified that he saw MM face down on the floor

of the copy room, with Bailey kneeling by her head rubbing oil on

her, and both MM and Bailey being fully undressed.           Uncle

testified that he saw Bailey “holding [MM’s] legs up and licking

her vagina[,]” and Uncle also stated that both MM and Bailey were

fully undressed.

          However, there was also testimony that Uncle told a 911

operator that MM had not been raped.        And, Nurse Endo testified

that her report indicated MM had no “obvious [vaginal] injuries,”

that there were no physical findings, and that there was no


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injury to MM’s hymen.     This testimony arguably contradicted MM’s

testimony that Bailey inserted his penis “about as much as six

inches” into her vagina, and inserted his fingers a “[c]ouple

inches” into her vagina.      However, MM was 12 years old at the

time she testified, and was sexually inexperienced.           The

witnesses’ testimony also indicates that the lights in the copy

room were off during the alleged acts of sexual penetration, and

that Bailey had covered MM’s eyes.        Under these circumstances, a

reasonable juror may have concluded that MM was mistaken as to

the culmination of the acts of sexual penetration, but that

Bailey attempted to commit each of the alleged acts described.

Accordingly, the evidence was sufficient “to enable a person of

reasonable caution to support a conclusion” that Bailey was

guilty on four counts of attempted sexual assault in the first

degree, and there was therefore substantial evidence to support

Bailey’s conviction on each count.        See Kalaola, 124 Hawai#i at

49, 237 P.3d at 1115 (discussing the standard for substantial

evidence) (quoting Richie, 88 Hawai#i at 33, 960 P.2d at 1241);

see also State v. Laurie, 56 Haw. 664, 667, 673, 548 P.2d 271,

275, 278 (1976) (concluding that there was substantial evidence

to support a conviction for attempted rape in the first degree,

where the evidence consisted of medical testimony that the

complaining witness (an 18-month-old child) had a tear in her

perineum that was “probably caused by a large, blunt object,

possibly an erect adult penis”).


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           Bailey argues that inconsistencies in the testimony of

the witnesses, and between MM’s testimony and the physical

evidence, mean that the evidence was not substantial.             However,

“it is for the [finder of fact] to assess the credibility of

witnesses . . . and it may accept or reject such testimony in

whole or in part.”     Kaleohano, 99 Hawai#i at 376, 56 P.3d at 144

(citation and quotation marks omitted) (ellipsis in original).

           Bailey further argues that there was not substantial

evidence to support his convictions because the State failed to

perform DNA testing that may have exonerated Bailey.             However,

assuming DNA evidence would have been relevant in this case,26 it

was not required to support Bailey’s convictions.            See State v.

Smith, 106 Hawai#i 365, 373, 105 P.3d 242, 250 (App. 2004)

(rejecting the defendant’s argument that there was insufficient

evidence to support his conviction for sexual assault in the

first degree, where there was insufficient DNA in a vaginal

sample to perform an analysis).        Moreover, defense counsel argued

to the jury that there was “no legitimate reason for the police

not to have conducted that DNA testing” and that the police

accordingly did not perform a “[f]ull and fair investigation[.]”

The jury rejected this argument in finding Bailey guilty.              “[I]t



      26
            Defense counsel conceded that Bailey was found in a “very
inappropriate situation” with MM, and thus identity is not disputed. Also,
defense counsel’s closing argument and questioning of Detective Artienda
appeared to put forth the theory that DNA evidence would have contradicted
MM’s testimony regarding penetration. However, Bailey’s conviction for
attempted sexual assault did not require proof of penetration. See HRS §§
705-500 and 707–730(1)(b).

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is well-settled that an appellate court will not pass upon issues

dependent upon the credibility of witnesses and the weight of the

evidence; this is the province of the trier of fact.”            State v.

Martinez, 101 Hawai#i 332, 340, 68 P.3d 606, 614 (2003) (citation

omitted).   We do not address what weight the lack of DNA evidence

should have carried in this case.

            Accordingly, the State presented substantial evidence

to support Bailey’s convictions.

                             IV. Conclusion

            Based on the foregoing, we vacate the judgment of the

ICA and the circuit court’s judgment of conviction and sentence,

and remand to the circuit court for a new trial.

                                      /s/ Mark E. Recktenwald
Jon N. Ikenaga, Deputy Public
Defender, for petitioner/
                                      /s/ Paula A. Nakayama
defendant-appellant.
                                      /s/ Simeon R. Acoba, Jr.
Michael S. Kagami, Deputy
Prosecuting Attorney, for
                                      /s/ James E. Duffy, Jr.
respondent/plaintiff-appellee.
                                      /s/ Richard W. Pollack




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