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                                                               Electronically Filed
                                                               Supreme Court
                                                               SCWC-13-0000086
                                                               12-JAN-2016
                                                               09:39 AM




            IN THE SUPREME COURT OF THE STATE OF HAWAIʻI

                            ---o0o---
________________________________________________________________

                            STATE OF HAWAIʻI,
                     Respondent/Plaintiff-Appellee,

                                     vs.

                      JUNE-JUNE MAS ABDON,
                Petitioner/Defendant-Appellant.
________________________________________________________________

                              SCWC-13-0000086

          CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
                (CAAP-13-0000086; CR. NO. 12-1-0636)

                             JANUARY 12, 2016

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

                  OPINION OF THE COURT BY WILSON, J.

            Petitioner/Defendant-Appellant June-June Mas Abdon

appeals from the Intermediate Court of Appeals’ (ICA) judgment

on appeal entered pursuant to its memorandum opinion.             The ICA’s
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judgment vacated the Circuit Court of the First Circuit’s

(circuit court) January 16, 2013 judgment of conviction and

sentence for sexual assault in the first degree based on the

circuit court’s failure to instruct on the lesser included

offense of sexual assault in the third degree.

            Abdon does not challenge the ICA’s determination

regarding the lesser included offense instruction, but asserts

that the ICA gravely erred in rejecting his claim that his post-

verdict motion for judgment of acquittal should have been

granted by the circuit court.        In the post-verdict motion, Abdon

contended that the State failed to adduce evidence at trial of

the date his prosecution commenced, and accordingly, the State

did not prove beyond a reasonable doubt “[f]acts establishing

that the offense was committed within” the statute of

limitations as required by Hawaiʻi Revised Statutes (HRS)

§§ 701-114(1)(e) and 701-108.        Abdon’s claim is unavailing

because the date the prosecution commenced—i.e., the date of the

indictment—was subject to judicial notice as requested by the

State.   Accordingly, the circuit court did not err in denying

his motion for judgment of acquittal.          We additionally hold that

the circuit court erred in failing to instruct the jury that the

State had to prove beyond a reasonable doubt facts establishing

the timeliness of the prosecution.         However, this error was


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harmless beyond a reasonable doubt.         Accordingly, we affirm the

ICA’s judgment on appeal.

                              I.    Background

A.    Circuit Court Proceedings

             On April 24, 2012, the State of Hawaii filed an

indictment charging Abdon with sexual assault in the first

degree—a class A felony—in violation of HRS § 707-730(1)(b).1

According to the indictment, “[o]n or about the 1st day of June,

1997, to and including the 30th day of June, 1997,” Abdon “did

knowingly subject to sexual penetration, [the complaining

witness (CW)], who was less than fourteen years old, by

inserting his penis into her genital opening.”           The indictment

stated that CW was born on April 26, 1988; turned eighteen on

April 26, 2006; and is still alive, citing to HRS

§ 701-108(6)(c), which provides that the statute of limitations

for felony sexual offenses is tolled while the victim is under

eighteen.2    The foreperson of the grand jury and the deputy

      1
            At the time of the offense, HRS § 707-730(1)(b) (1993) provided
that “[a] person commits the offense of sexual assault in the first degree if
. . . [t]he person knowingly subjects to sexual penetration another person
who is less than fourteen years old[.]” “Sexual assault in the first degree
is a class A felony.” HRS § 707-730(2) (1993).
      2
            HRS § 701-108 governs time limitations for prosecutions. See
infra note 6. HRS § 701-108(6)(c) (2014) states, as it did at the time
relevant here, that “[t]he period of limitation does not run . . . [f]or any
felony offense under chapter 707, part V or VI [sexual offenses and child
abuse], during any time when the victim is alive and under eighteen years of
age.” The statute was amended in 1995 to add this subsection on the basis
“that i[t] is likely to take much longer for child victims of crime to report
                                                              (continued. . .)
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prosecuting attorney signed the indictment and indicated the

date the indictment was found: “A True Bill found this day:

April 24, 2012.”     The indictment also was signed by the clerk of

the circuit court with the filing date of April 24, 2012.

            At trial,3 CW testified that her date of birth was

April 26, 1988.     CW identified Abdon as her uncle, who was

living with her and her family in Hawaiʻi after moving from the

Philippines.    In June 1997, when CW was nine, CW testified that

Abdon sexually assaulted her in a bedroom the two shared by

touching her vagina with his hand and forcing his penis into her

vagina.   CW did not report the incident until 2010, when she was

attending college.      Abdon testified at trial and denied having

ever touched CW inappropriately.

            Following the evidence, the court and the parties

discussed jury instructions.        Abdon requested an instruction on

the lesser included offense of third degree sexual assault.4              The

court rejected Abdon’s request over the objection of both Abdon

and the State, concluding that there was no rational basis upon


(. . . continued)
a crime to law enforcement.” S. Stand. Comm. Rep. No. 1205, in 1995 Senate
Journal, at 1280.
      3
            The Honorable Glenn J. Kim presided.
      4
            HRS § 707-732(1)(b) (2014) provides, as it did at the time
relevant here, that “[a] person commits the offense of sexual assault in the
third degree if . . . [t]he person knowingly subjects to sexual contact
another person who is less than fourteen years old or causes such a person to
have sexual contact with the person[.]”


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which a reasonable juror could acquit Abdon of the charged

offense but convict him of sexual assault in the third degree.

            The jury found Abdon guilty of sexual assault in the

first degree, as charged.

            At the close of the proceedings, the circuit court

ordered counsel to return later in the afternoon to discuss “a

matter having to do with [the] case.”           It appears from the

pleadings that at this post-trial meeting, the court instructed

the defense to file a motion for judgment of acquittal based on

the statute of limitations.

            Accordingly, Abdon filed a post-verdict motion for

judgment of acquittal contending that the State failed to prove

beyond a reasonable doubt, as required by HRS § 701-114,5 that

the six-year statute of limitations for class A felonies


      5
            HRS § 701-114 (2014), entitled “Proof beyond a reasonable doubt,”
provides as follows, as it did at the time relevant here:

            (1) Except as otherwise provided in section 701-115, no
            person may be convicted of an offense unless the following
            are proved beyond a reasonable doubt:

                    (a) Each element of the offense;
                    (b) The state of mind required to establish each
                    element of the offense;
                    (c) Facts establishing jurisdiction;
                    (d) Facts establishing venue; and
                    (e) Facts establishing that the offense was committed
                    within the time period specified in section 701-108.

            (2) In the absence of the proof required in subsection (1),
            the innocence of the defendant is presumed.

(Emphasis added).


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enumerated in HRS § 701-108(2)(b) was tolled.            According to the

indictment, the offense was committed in June 1997.              Thus,

absent tolling, the statute of limitations expired in July 2003,

long before the commencement of the prosecution on April 24,

2012.     However, tolling is provided for in HRS § 701-108(6)(c)

where the victim is alive and under eighteen.6           Abdon argued

before the circuit court that in the instant case, the State

failed to meet the mandate of HRS §§ 701-114(1)(e), 701-

108(2)(b), and 701-108(6)(c) to prove beyond a reasonable doubt

that the prosecution commenced within six years of the date CW

turned eighteen years old.       Abdon acknowledged that the State

      6
            HRS § 701-108 (2014), entitled “Time limitations,” provides in
relevant part as follows, as it did at the time relevant here:

            (2) Except as otherwise provided in this section,
            prosecutions for other offenses are subject to the
            following periods of limitation:

            . . . .

            (b) A prosecution for a class A felony must be commenced
            within six years after it is committed[.]

            . . . .

            (5) A prosecution is commenced either when an indictment is
            found or a complaint filed, or when an arrest warrant or
            other process is issued, provided that such warrant or
            process is executed without unreasonable delay.

            (6) The period of limitation does not run:

            . . . .

            (c) For any felony offense under chapter 707, part V or VI,
            during any time when the victim is alive and under eighteen
            years of age.

(Emphases added).

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adduced evidence “sufficient to establish that CW turned 18 on

April 26, 2006” and as such, the limitations period expired “on

or about April 26, 2012”—two days after the indictment was found

and filed.    However, Abdon argued that the State failed to

produce any evidence of when the prosecution commenced, that is,

“when the indictment was ‘found.’”         Abdon stated that evidence

“[f]or the commencement of prosecution was critical” because the

trial began “almost six months after the expiration of the

limitation[s] period.”

            The State filed a memorandum in opposition to Abdon’s

motion for judgment of acquittal, arguing that it did not have

to produce evidence that the indictment was found before April

26, 2012 because it “is a legal fact that did not need to be

adduced at trial or go before the jury.”          The State also argued

that Abdon waived any statute of limitations defense to the

third degree sexual assault charge by requesting an instruction

on the lesser included offense, and accordingly, even if the

court granted his motion for judgment of acquittal for sexual

assault in the first degree, it must enter a conviction for

third degree sexual assault.        In the alternative, the State

asked the circuit court to take judicial notice of the fact that

the indictment was filed on April 24, 2012.           The State

maintained that it had furnished sufficient facts to allow the


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court to take judicial notice of the date of the indictment and

that when taken together with the trial testimony, judicial

notice that the date of the indictment was April 24, 2012 “is

sufficient to prove timeliness.”

            At the hearing on Abdon’s motion, the court expressed

uncertainty regarding the timeliness issue, but ultimately

denied the motion.      The court agreed with the State that

evidence of the date of the indictment need not be adduced,

noting specifically that in a typical case, where no tolling

exception applies, the date of commencement of prosecution is

not a jury issue.     Because the circuit court ruled that the

State was not required to provide evidence of the date of the

indictment, the court did not address the State’s request that

it take judicial notice of that fact.

            In denying Abdon’s motion, the court also stated that

its failure to instruct the jury that it must find beyond a

reasonable doubt CW’s date of birth and that she was

continuously alive during the relevant time period resulted in

“plain error.”     However, the court noted that evidence on these

issues had been adduced at trial:

                  In this case, I do believe that the date of birth of
            the complainant and, of course, the fact that she was
            continuously alive during the applicable period also
            needed to go to the jury, and it didn’t. But evidence was
            adduced at trial upon which the jury could have made that
            finding if they had been presented with it in the jury
            instructions, which I think they should have been. And I
            continue to believe that’s error in this case, plain error,
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            that they were not so instructed.

B.    ICA Proceedings

            On appeal before the ICA, Abdon argued that 1) the

circuit court erred in denying his post-verdict motion for

judgment of acquittal, and 2) the circuit court erred in denying

his request to instruct the jury on the lesser included offense

of sexual assault in the third degree.

            The ICA vacated Abdon’s conviction and sentence based

on the circuit court’s failure to instruct the jury on sexual

assault in the third degree.        State v. Abdon, No. CAAP-13-

0000086, 2014 WL 4800994, at *7 (App. Sept. 26, 2014) (mem.

op.), as corrected (Oct. 27, 2014).7            The ICA’s ruling on the

failure to instruct on the lesser included offense is not raised

by the parties as an issue before this court.            Instead, at issue

on certiorari is the ICA’s conclusion that the circuit court did

not err by denying Abdon’s post-verdict motion for judgment of

acquittal.    See id. at *5.

            In this regard, Abdon argued before the ICA that “the

Indictment did not allege, and the State did not prove” that the

date the prosecution commenced was within six years from the

date CW turned eighteen.       Abdon further noted that “the jury was


      7
            The court held that the evidence provided a rational basis to
instruct the jury on the lesser included offense because a rational juror
could infer that there was sexual contact prior to the penetration alleged by
CW. Id.

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not instructed that the State had to prove that the prosecution

commenced within the allowable time limitation period” and thus

did not have to find that the “prosecution had been timely

beyond a reasonable doubt[,]” resulting in “a denial of due

process.”

            In response, the State argued that Abdon waived the

statute of limitations defense because, inter alia, he failed to

raise the defense before or during the trial.           In the

alternative, the State contended that relevant precedent

supported its position that evidence of the date the prosecution

commenced need not be adduced at trial.          Finally, as it did

before the circuit court, the State maintained that even if it

were required to prove the date when the prosecution commenced,

the court may take judicial notice of the date the indictment

was found.    The State contended that to the extent that the

circuit court erred in reasoning that the State did not need to

prove the date when the prosecution commenced as required under

HRS § 701-114(1)(e), the circuit court’s error was harmless

because the ICA should take judicial notice that the date of the

indictment was April 24, 2012, pursuant to Hawaiʻi Rules of

Evidence (HRE) Rule 201(c), (d), or (f).8


      8
            HRE Rule 201(c) provides that “[a] court may take judicial
notice, whether requested or not” whereas HRE Rule 201(d) states that “[a]
court shall take judicial notice if requested by a party and supplied with
                                                              (continued. . .)
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            The ICA rejected Abdon’s argument regarding the post—

verdict motion for judgment of acquittal.          In this respect, the

ICA found it unnecessary to decide whether evidence presented

was sufficient to establish the timeliness of the prosecution

because Abdon waived such a challenge by requesting an

instruction on the lesser included offense of sexual assault in

the third degree, an offense barred by the statute of

limitations.    Abdon, mem. op., 2014 WL 4800994, at *5.           Sexual

assault in the third degree is a class C felony, and thus, a

three-year statute of limitations applies.           See HRS § 707-732(2)

(2014); HRS § 701-108(2)(c) (1993).         Accordingly, the statute of

limitations for sexual assault in the third degree expired on

April 26, 2009, three years following CW’s eighteenth birthday.

Under this analysis, the ICA concluded that once Abdon sought

the benefit of an instruction on the lesser included offense, he

waived not only the statute of limitations for sexual assault in

the third degree, but also any claim based on the statute of

limitations for the charged offense, i.e., sexual assault in the

first degree.     To support this conclusion, the ICA cited to

State v. Timoteo, in which this court held that “Timoteo waived

the statute of limitations for the time-barred lesser included



(. . . continued)
the necessary information.” Under HRE Rule 201(f), a court may take judicial
notice “at any stage of the proceeding.”

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offense of simple trespass by requesting that the trial court

instruct the jury on [the lesser included offense].”               Abdon,

mem. op., 2014 WL 4800994, at *5 (quoting State v. Timoteo, 87

Hawaiʻi 108, 116, 952 P.2d 865, 873 (1997)).          The ICA determined

that “[b]y waiving proof . . . for the lesser included crime

that was otherwise time-barred, it follows that Abdon similarly

has waived his statute of limitations challenge as to the

charged crime that was not, in fact time barred.”            Id.     The ICA

further noted that Abdon failed to raise the statute of

limitations challenge before trial or at trial.            Id.     Finally,

the ICA determined that the facts establishing the timeliness of

the indictment were not in dispute, and thus the failure to

present the issue of timeliness to the jury “by way of

instructions . . . is harmless error.”          Id. (citing State v.

Iuli, 101 Hawaiʻi 196, 207, 65 P.3d 143, 154 (2003)).              The ICA

did not address the State’s request that it take judicial notice

of the date of the indictment.

            The concurring opinion presented a different analysis

of the timeliness issue.       According to the concurrence, the

State does not need to “present evidence at trial of the

incontestible [sic], judicially-known date of when the

prosecution was commenced and the limitations period stopped

running.”    Id. at *8 (Nakamura, C.J., concurring).          The


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concurrence reasoned that HRS § 701-114(1)(e)’s requirement that

the State prove beyond a reasonable doubt facts establishing

that the offense was committed within the statutory time period

prescribed in HRS § 701-108 is satisfied by adducing evidence of

when the limitations period began to run (the day after the

offense was committed) and any period during which the statute

of limitations is tolled.       Id. (Nakamura, C.J., concurring).

“Because the date on which the prosecution was commenced is

always known and indisputable, proof of when the limitations

period began to run (and any tolling-period) will necessarily

serve to establish whether the offense was committed within the

limitations period.”      Id. (Nakamura, C.J., concurring).         The

concurrence noted that in the instant case, the State presented

evidence of the date of CW’s eighteenth birthday and the

indictment “indisputably shows . . . [it] was found and filed

within the six-year limitations period.”          Id. at *9 (Nakamura,

C.J., concurring).      Accordingly, the State’s failure to present

evidence of when Abdon’s prosecution commenced was not grounds

for overturning the conviction.        Id. (Nakamura, C.J.,

concurring).

            The concurrence additionally concluded that Abdon

waived his statute of limitations claim by failing to raise an

objection before trial, citing to Hawaiʻi Rules of Penal


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Procedure (HRPP) Rule 12(b), which states that “defenses and

objections based on defects in the institution of the

prosecution” must be raised prior to trial.           Id. at *11

(Nakamura, C.J., concurring) (quoting HRPP Rule 12(b) (2007)).

Further, according to the concurrence, the statute of

limitations argument should be “characterized as a defense” and

Abdon failed his burden of producing evidence “to support the

defense” as is required “before the trial court is required to

instruct on it.”     Id. (Nakamura, C.J., concurring).

                              II.   Discussion

A.    Post-Verdict Motion for Judgment of Acquittal

            On certiorari, Abdon reasserts his claim that the

circuit court erred by denying his post-verdict motion for

judgment of acquittal because the State failed to prove beyond a

reasonable doubt that his prosecution was timely.            We disagree.

            Post-verdict motions for judgment of acquittal are

reviewed using the same standard applied by the circuit court,

            namely, whether, upon the evidence viewed in the light most
            favorable to the prosecution and in full recognition of the
            province of the trier of fact, the evidence is sufficient
            to support a prima facie case so that a reasonable mind
            might fairly conclude guilt beyond a reasonable doubt.
            Sufficient evidence to support a prima facie case requires
            substantial evidence as to every material element of the
            offense charged. Substantial evidence as to every material
            element of the offense charged is credible evidence which
            is of sufficient quality and probative value to enable a
            person of reasonable caution to support a conclusion.
            Under such a review, we give full play to the right of the
            fact finder to determine credibility, weigh the evidence,
            and draw justifiable inferences of fact.


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Timoteo, 87 Hawaiʻi at 112-13, 952 P.2d at 869-70 (quoting State

v. Jhun, 83 Hawaiʻi 472, 481, 927 P.2d 1355, 1364 (1996)).                Here,

Abdon would prevail on the motion for judgment of acquittal if

either the record lacked substantial evidence as to the elements

of sexual assault in the first degree, HRS § 701-114(1)(a), or

it lacked substantial evidence as to one of the following:

            (b) The state of mind required to establish each element of
            the offense;
            (c) Facts establishing jurisdiction;
            (d) Facts establishing venue; and
            (e) Facts establishing that the offense was committed
            within the time period specified in [HRS] section 701–108.

HRS § 701-114(1); see also Timoteo, 87 Hawaiʻi at 113, 952 P.2d

at 870.

            At issue here is Abdon’s claim, pursuant to HRS § 701-

114(1)(e), that the State failed to present evidence, and that

the jury failed to specifically find, that his prosecution

complied with the time limitations laid out in HRS § 701-108.

As noted supra, sexual assault in the first degree is a class A

felony, and accordingly, at the time relevant here, the

prosecution had to “be commenced within six years after”

commission of the crime.       HRS § 701-108(2)(b).9      Pursuant to HRS

§ 701-108(6)(c), however, for felony sexual and child abuse

      9
            HRS § 701-108(2)(b) (2014) states, as it did at the time relevant
here, that “[a] prosecution for a class A felony must be commenced within six
years after it is committed[.]” However, in 2014, the legislature amended
HRS § 701-108(1) to provide that “[a] prosecution for . . . sexual assault in
the first and second degrees . . . may be commenced at any time.” HRS § 701-
108(1) (2014). This amendment does not apply to the instant case.

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offenses, the limitations period is tolled “during any time when

the victim is alive and under eighteen years of age.”             HRS

§ 701-108(5) (2014) provides, as it did at the time relevant

here, that “[a] prosecution is commenced either when an

indictment is found or a complaint filed, or when an arrest

warrant or other process is issued[.]”

            Here, the indictment charging Abdon with sexual

assault in the first degree averred that CW was less than

fourteen years old at the time of the offense.           The indictment

further averred that CW “was born on April 26, 1988, became

eighteen years of age on April 26, 2006, and is still alive”

with reference to the applicable tolling statute, HRS § 701-

108(6)(c).    At trial, CW’s testimony supporting these averments

was undisputed.     Specifically CW testified that she was nine

years old in June 1997 when the alleged sexual assault occurred

and that her date of birth was April 26, 1988.           Because CW was a

minor at the time of the crime, the six-year limitations period

was tolled during the time CW was alive and under eighteen years

old.   See HRS § 701-108(6)(c).       Thus, the six-year limitations

period did not commence until the date of CW’s eighteenth

birthday on April 26, 2006.        The indictment was filed and found

on April 24, 2012, two days prior to the expiration of the




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statute of limitations, on April 26, 2012.           Accordingly, the

prosecution was timely.

            Abdon does not dispute the timeliness of his

prosecution, but instead argues that HRS § 701-114(1)(e)

required the State to present evidence to the jury of the date

the prosecution commenced.       Pursuant to HRS § 701-114(1)(e), the

State is statutorily required to prove beyond a reasonable doubt

“[f]acts establishing that the offense was committed within” the

relevant time period.      HRS § 701-114(1)(e).       If the State fails

to prove beyond a reasonable doubt any of the requirements under

HRS § 701-114(1), then “the innocence of the defendant is

presumed.”    HRS § 701-114(2).      For purposes of proving that the

offense was committed within the relevant limitations period,

the State had to present facts establishing the date of the

offense, the CW’s date of birth or her eighteenth birthday, that

she was alive on her eighteenth birthday, and the date of the

commencement of the proceedings.           Hawaiʻi case law has repeatedly

confirmed the State’s obligation to prove timeliness and has

determined that timeliness is a factual issue.           See State v.

Stan’s Contracting, Inc., 111 Hawaiʻi 17, 33, 137 P.3d 331, 347

(2006) (stating that the timely commencement of the prosecution

“constitutes a baseline substantive component that the

prosecution must prove beyond a reasonable doubt at trial”);


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Iuli, 101 Hawaiʻi at 207, 65 P.3d at 154 (stating that HRS § 701–

114 “requires proof beyond a reasonable doubt of each element of

the offense, the state of mind required to establish each

element of the offense, and facts establishing jurisdiction,

venue, and timeliness”); State v. Correa, 5 Haw. App. 644, 650,

706 P.2d 1321, 1325 (1985) (“Evidence is merely the means of

proving a fact.     The trier of fact still must find the fact.

Where timeliness of the prosecution and venue are issues of

fact, the jury must be so instructed.”).

            Here, the State presented evidence of the date of the

offense—June 1997—through CW’s testimony.            As to the tolling

period, as noted above, the State adduced substantial evidence

regarding CW’s date of birth (and accordingly, her eighteenth

birthday), as well as evidence that she was alive during the

applicable period, the latter by virtue of her live trial

testimony.    However, there was no evidence presented regarding

the date of the commencement of the proceedings, and thus, the

record lacked substantial evidence that the prosecution was

commenced within the six-year statute of limitations period.

            Because the circuit court ruled that the State was not

required to provide evidence of the date of the indictment, the

court did not address the State’s request that it take judicial

notice of that fact.      The State also requested on appeal that


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the ICA take judicial notice of the fact that the indictment was

found, and the prosecution was commenced, on April 24, 2012, two

days before the expiration of the statute of limitations.              The

ICA affirmed the circuit court’s denial of Abdon’s motion for

judgment of acquittal, finding, inter alia, that the indictment

was timely because it was filed on April 24, 2012, and Abdon

waived any challenge to the sufficiency of the evidence

regarding the statute of limitations.          Abdon, mem. op., 2014 WL

4800994, at *4-6.     Consequently, the ICA also did not address

the State’s request to take judicial notice of the date of the

indictment.

            Hawaiʻi Rules of Evidence Rule 201 governs judicial

notice of adjudicative facts; it provides that “[a] judicially

noticed fact must be one not subject to reasonable dispute in

that it is either (1) generally known within the territorial

jurisdiction of the trial court, or (2) capable of accurate and

ready determination by resort to sources whose accuracy cannot

reasonably be questioned.”       “[T]he purpose of the judicial

notice rule . . . is to eliminate the necessity of taking the

time of the court and the jury to make formal proof of a fact

which cannot be disputed.”       State v. Moses, 102 Hawaiʻi 449, 454,

77 P.3d 940, 945 (2003) (quoting In re Estate of Herbert, 90

Hawaiʻi 443, 446, 979 P.2d 39, 62 (1999)).          Judicial notice,

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then, dispenses with the need for evidence and enables a court

to declare the existence of a relevant fact so long as it is a

fact that is not subject to reasonable dispute.            See HRE Rule

201.

            “The most frequent use of judicial notice of

ascertainable facts is in noticing the content of court

records.”    State v. Akana, 68 Haw. 164, 165, 706 P.2d 1300, 1302

(1985).   Because an indictment is a court record and thus an

official document, it qualifies as a “source[] whose accuracy

cannot be reasonably questioned.”          See Addison M. Bowman, Hawaiʻi

Rules of Evidence Manual § 201-5[4] (2014-2015 ed.).             This court

has noted that “taking judicial notice of the records and files

of a case may or may not be proper, depending upon the type of

record at issue and the purpose for which it is considered.”

State v. Kotis, 91 Hawaiʻi 319, 343, 984 P.2d 78, 102 (1999).

Where a trial court seeks to take judicial notice of “its own

acts or of the existence of records on file in the same case,” a

number of other jurisdictions have held that judicial notice

under this circumstance is proper.          Id. at 341, 984 P.2d at 100.

And other jurisdictions have specifically taken judicial notice

of the filing date of certain documents, as well as the dates

when certain hearings are held in the case.           See, e.g., Deicher

v. City of Evansville, 545 F.3d 537, 541-42 (7th Cir. 2008)


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(holding that the court properly took judicial notice of the

complaint filing date, which was not admitted into evidence);

State v. Blow, 602 A.2d 552, 557 (Vt. 1991) (affirming the trial

court’s decision to take judicial notice of the date of the

defendant’s arraignment).

            Under HRE Rule 201(d), a court shall take judicial

notice when a party requests that the court take judicial notice

of a fact and supplies the court with the necessary information.

In this case, Abdon was found guilty of sexual assault in the

first degree after a jury trial.           He filed a post-verdict motion

for judgment of acquittal, contending that the State failed to

adduce evidence and prove beyond a reasonable doubt that the

prosecution commenced within six years of the victim’s

eighteenth birthday, as required by statute.           In its opposition

memorandum, the State requested that the trial court take

judicial notice that the filing date of the indictment was April

24, 2012, which was within six years of the victim’s eighteenth

birthday and therefore before the expiration of the statute of

limitations on April 26, 2012.10        The indictment, dated April 24,

2012, was in the circuit court’s file and in the court’s

immediate possession as it was attached to Abdon’s post-verdict

      10
            The State made this argument in the alternative. The State’s
primary argument was that it did not need to adduce evidence regarding the
date of the indictment, or in other words, the date the prosecution
commenced.

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motion and part of the court records of this case.            The ready

availability and accuracy of the indictment, which neither party

contested, thus could not be questioned, and under these

circumstances, the circuit court was mandated to take judicial

notice of the date the indictment was found and filed.             See HRE

Rule 201(d).

            Because a court is required to take judicial notice if

requested by a party and supplied with the necessary information

and because a court may take judicial notice “at any stage of

the proceeding,” including on appeal, the ICA also should have

taken judicial notice of the indictment in light of the State’s

similar request to the circuit court.          See HRE Rule 201(f).       The

indictment was in the record on appeal and was in the ICA’s

immediate possession.      Further, neither party disputed on appeal

the validity and accuracy of the date of the indictment, and

therefore the accuracy of the indictment could not be reasonably

questioned.    Under the circumstances of this case, the ICA erred

in failing to take judicial notice of the date the indictment

was found and filed.      See HRE Rule 201(d), (f).

            In order to correct the circuit court’s and the ICA’s

error, this court takes judicial notice that the date the

indictment was found and filed in this case was April 24, 2012.

Taking judicial notice of this fact establishes that the


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prosecution was timely commenced two days before the expiration

of the statute of limitations, on April 24, 2012, when the

indictment was found.       On this basis, we affirm the circuit

court’s denial of Abdon’s post-verdict motion for judgment of

acquittal.

             We additionally determine that the ICA erred in its

conclusion that Abdon waived his timeliness challenge under HRS

§ 701-114(1)(e).     See Abdon, mem. op., 2014 WL 4800994, at *5.

Specifically, the ICA concluded that pursuant to Timoteo, Abdon

waived his statute of limitations challenge to the charged

offense by requesting a jury instruction on a lesser included

time-barred offense, i.e., sexual assault in the third degree.

Id. (citing Timoteo, 87 Hawaiʻi at 115-16, 952 P.2d at 872-73).

However, Timoteo’s waiver holding does not extend to the facts

of Abdon’s case, and accordingly, the ICA’s conclusion is

incorrect.

            In Timoteo, the petitioner was charged with burglary

in the first degree.      87 Hawaiʻi at 111, 952 P.2d at 868.         While

the parties and the court were settling jury instructions,

Timoteo requested an instruction on simple trespass, a lesser

included offense.     Id.    The court granted Timoteo’s request and

the jury proceeded to find Timoteo guilty of the lesser included

offense.    Id.   Timoteo filed a “motion to dismiss” two days


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following the verdict, arguing that the court should enter a

judgment of acquittal because the one-year statute of

limitations on simple trespass had expired prior to the date of

the indictment.     Id.     The prosecution argued that Timoteo waived

the statute of limitations challenge by “request[ing] the jury

instruction for the time-barred lesser included offense of

simple trespass.”     Id.     The circuit court granted Timoteo’s

motion, dismissing his conviction.         Id.

            We construed Timoteo’s motion as a post-verdict motion

for judgment of acquittal and considered the prosecution’s

waiver argument.     Id.    In this regard, we determined that

statutes of limitations for prosecutions in Hawaiʻi are waivable

and agreed with the State that Timoteo waived his statute of

limitations challenge under the circumstances of the case.              Id.

at 114, 952 P.2d at 871.        Specifically, we held that by

“request[ing] the jury instruction on simple trespass, [Timoteo]

effectively waived the statute of limitations and agreed that

the jury could convict him of simple trespass, rather than the

more serious initially charged offense of burglary in the first

degree, because he preferred the less serious of the two

possible convictions.”        Id. at 116, 952 P.2d at 873.

            In the instant case, the ICA determined that Abdon

waived his statute of limitations defense for the lesser


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included offense of sexual assault in the third degree by

requesting an instruction on the lesser included offense, which

“would have been time barred,”        Abdon, mem. op., 2014 WL

4800994, at *5, as explained supra.         The ICA’s conclusion in

this regard is a correct reading of Timoteo.           The ICA, however,

went further to hold that because Abdon waived a statute of

limitations defense for the third degree sexual assault charge,

“it follows that Abdon similarly has waived his statute of

limitations challenge as to the charged crime that was not, in

fact time barred.”      Id.   The ICA’s conclusion does not follow

from Timoteo’s holding.       Indeed, the Timoteo court made no

reference to the effect of its waiver holding on the charged

offense.    Moreover, the reasoning supporting Timoteo’s holding

does not extend to cases where the statute of limitations

challenge is to the charged offense.         As we noted in Timoteo, by

requesting an instruction on a lesser included offense, in

effect, a defendant is agreeing that it is possible that he or

she may be found guilty of that offense.          87 Hawaiʻi at 116, 952

P.2d at 873.    Other courts have similarly explained that where a

defendant seeks the benefit of being convicted of a less serious

crime, he or she cannot proceed to attack a conviction for that

same crime on statute of limitation grounds.           See, e.g., United

States v. Williams, 684 F.2d 296, 299 (4th Cir. 1982) (holding


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that where the defendant requested the charge for the lesser

included offense and “in all probability, benefited from the

charge[,]” the defendant “cannot now complain of the result”);

People v. Brocksmith, 604 N.E.2d 1059, 1065 (Ill. App. Ct. 1992)

(“If a defendant wishes to seek a lesser offense and try for the

possible compromise verdict, he must be willing to accept the

consequences of that decision, even if it means conviction of a

crime for which the statute of limitations has expired.”),

aff’d, 642 N.E.2d 1230 (1994); Weber v. State, 602 So.2d 1316,

1319 (Fla. Dist. Ct. App. 1992) (holding that following a guilty

verdict “based on the requested [lesser included offense]

instruction, defense counsel cannot be allowed to change legal

positions in midstream and seek a reversal based on that

error”).11    Abdon did not request to be charged with sexual

assault in the first degree, the charge at issue for his statute

of limitations challenge.        Thus, unlike in Timoteo and the other

cases mentioned above, Abdon did not seek the benefit of being

convicted of a lesser crime and then take the inconsistent

position—after conviction of that lesser crime—that such a

conviction was invalid.

             We also disagree with the ICA’s conclusion that Abdon

waived his statute of limitations challenge by failing to raise


      11
             These cases were also cited in Timoteo.

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it before or at trial.      Abdon, mem. op., 2014 WL 4800994, at *5.

As noted supra, statutes of limitations for criminal

prosecutions can be waived in certain situations.            Specifically,

we have held that a statute of limitations challenge to a lesser

included offense is waived by requesting an instruction on the

lesser included offense, as in Timoteo; and that the statute of

limitations may be waived by pleading no contest to the charge

at issue, as in Adams v. State, 103 Hawaiʻi 214, 226, 81 P.3d

394, 406 (2003).     However, unlike in the instant case, both

Timoteo and Adams presented situations in which the defendant

acted affirmatively to imply acquiescence to being convicted of

a time-barred offense.      See Timoteo, 87 Hawaiʻi at 116, 952 P.2d

at 873 (distinguishing State v. Black, 66 Haw. 530, 531, 668

P.2d 32, 34 (1983), in which we held that a defendant did not

waive his right to proof of venue by failing to raise the issue

prior to a motion for judgment of acquittal, because “unlike

Timoteo, the defendant in Black did not affirmatively act in any

manner indicating that he was waiving the right at issue”).12                We

have not yet decided whether a statute of limitations challenge

can be waived based solely on the timing of the challenge.

            To determine this issue, we are mindful that while


      12
            Timoteo also distinguished Black on the basis that proof of
venue, unlike the statute of limitations, involves a constitutional right.
Id.

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statutes of limitations “may be invoked, and waived, as

affirmative defenses, that is not the sum total of their nature

or function.”     Stan’s, 111 Hawaiʻi at 33, 137 P.3d at 347

(emphasis added).     We emphasized in Stan’s that pursuant to “HRS

§ 701–114(1)(e), the timeliness of the prosecution in

satisfaction of HRS § 701–108 constitutes a baseline substantive

component that the prosecution must prove beyond a reasonable

doubt at trial” and that “silence by the defendant on the issue

of timeliness does not relieve the prosecution of its burden of

proving that component.”       Id. (emphasis added).       Here, based on

our holding in Stan’s, Abdon’s statute of limitations challenge

was timely, despite first raising it in a post-verdict motion

for judgment of acquittal.13       As Abdon contends, a pretrial

motion would have been premature,14 and HRPP Rule 29(c) (1977)

allows for post-verdict motions for judgment of acquittal within

ten days of the verdict without requiring a “similar motion

. . . [to be] made prior to the submission of the case to the

      13
            Notably, in Timoteo, the defendant raised the statute of
limitations challenge to the lesser-included offense at issue post-verdict,
but the court made no mention of the timing of the challenge in determining
that the claim had been waived. 87 Hawaiʻi at 113-16, 952 P.2d at 869-73.
      14
            The ICA concurrence determined that pursuant to HRPP Rule 12(b),
Abdon waived his statute of limitations claim by failing to raise it in a
pretrial motion. Abdon, mem. op., 2014 WL 4800994, at *10-11 (Nakamura,
C.J., concurring). However, HRPP Rule 12(b), governing pretrial motions,
applies to defenses and objections “which [are] capable of determination
without the trial of the general issue.” Here, Abdon’s challenge was to the
State’s failure to prove at trial that the prosecution was timely.
Accordingly, HRPP Rule 12(b) is inapplicable.


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jury.”

B.    Jury Instructions

            Abdon additionally takes issue with the circuit

court’s failure to instruct the jury regarding the timeliness of

the prosecution.     We agree with Abdon insofar as the circuit

court erred by failing to instruct the jury that the State must

prove beyond a reasonable doubt the facts necessary to support

the statutory tolling period.        Specifically, the jury should

have been instructed that the prosecution had to prove beyond a

reasonable doubt (1) the date of the offense, (2) CW’s birth

date or the date of her eighteenth birthday, (3) that CW was

alive on her eighteenth birthday, and (4) the date the

indictment was found.15      As discussed supra, this comports with

HRS § 701-114(1)(e)’s requirement that timeliness of the

prosecution be proven beyond a reasonable doubt.            See Stan’s,

111 Hawaiʻi at 33, 137 P.3d at 347 (noting “the timeliness of the

prosecution in satisfaction of HRS § 701–108 constitutes a

baseline substantive component that the prosecution must prove

beyond a reasonable doubt at trial”); Correa, 5 Haw. App. at

649-50, 706 P.2d at 1325 (citing HRS § 701-114(1)(e) in

determining that the circuit court should have instructed the
      15
             The jury was instructed regarding the date of the offense and
CW’s age at the time of the offense. Specifically, the court informed the
jury that the prosecution must prove that the offense occurred “on or about
the 1st day of June, 1997, to and including the 30th day of June, 1997” and
that CW “was less than fourteen years old at that time.”

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jury regarding timeliness and venue).

            Where jury instructions are at issue on appeal, “once

instructional error is demonstrated, we will vacate, without

regard to whether timely objection was made, if there is a

reasonable possibility that the error contributed to the

defendant’s conviction, i.e., that the erroneous jury

instruction was not harmless beyond a reasonable doubt.”              State

v. Nichols, 111 Hawaiʻi 327, 337, 141 P.3d 974, 984 (2006).

Here, the circuit court’s failure to instruct the jury regarding

the timeliness of the prosecution was harmless beyond a

reasonable doubt, because as previously discussed, we take

judicial notice of the date of the indictment, and thus there is

sufficient evidence in the record that the prosecution was

timely commenced.     In Iuli, 101 Hawaiʻi at 207, 65 P.3d at 154,

we reached a similar determination based upon the record in that

case.   On appeal, Iuli argued that the “jury instructions were

insufficient because they did not instruct the jury as to venue,

jurisdiction, and timeliness of prosecution.”           Id.   While

acknowledging that HRS § 701-114 requires proof beyond a

reasonable doubt of “facts establishing jurisdiction, venue, and

timeliness,” we held that “where uncontradicted and undisputed

evidence of timely prosecution, jurisdiction, and proper venue

is contained in the record, the trial court’s failure to


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instruct the jury is harmless beyond a reasonable doubt.”              Id.

Because the prosecution in Iuli presented evidence of

timeliness, jurisdiction, and venue at trial, we concluded that

“the trial court’s failure to instruct the jury on these matters

was harmless beyond a reasonable doubt.”          Id.; see also Correa,

5 Haw. App. at 650, 706 P.2d at 1325 (holding failure to

instruct on timeliness and venue was harmless beyond a

reasonable doubt where the evidence was “uncontradicted and

undisputed . . . that the offenses occurred on November 24, 1982

in Pearl City, Oʻahu”).      Here, in light of the judicially-noticed

indictment date, the record, as in Iuli and Correa, contains

undisputed evidence regarding the timeliness of the prosecution.

Accordingly, the circuit court’s instructional error was

harmless beyond a reasonable doubt.

                              III. Conclusion

            For the foregoing reasons, the ICA’s October 22, 2014

judgment on appeal is affirmed.

Phyllis J. Hironaka                 /s/ Mark E. Recktenwald
for petitioner
                                    /s/ Paula A. Nakayama

Stephen K. Tsushima                 /s/ Sabrina S. McKenna
for respondent
                                    /s/ Richard W. Pollack

                                    /s/ Michael D. Wilson




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