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Electronically Filed
Supreme Court
SCWC-XX-XXXXXXX
17-SEP-2025
08:53 AM
Dkt. 20 OP
IN THE SUPREME COURT OF THE STATE OF HAWAI‘I
---o0o---STATE OF HAWAI‘I,
Petitioner/Plaintiff-Appellee,
vs.
JOSHUA MASUDA-MERCADO,
Respondent/Defendant-Appellant.
SCWC-XX-XXXXXXX
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-XX-XXXXXXX; CASE NO. 3CPC-XX-XXXXXXX)
SEPTEMBER 17, 2025
RECKTENWALD, C.J., McKENNA, EDDINS, GINOZA, AND DEVENS, JJ.
OPINION OF THE COURT BY RECKTENWALD, C.J.
I. INTRODUCTION
This case concerns the relationship between a bill of
particulars and jury instructions in a criminal proceeding. The
specific impact of the filing of a bill of particulars on jury
instructions in the same proceeding is a question of first
impression before this court.
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Respondent Joshua Masuda-Mercado was indicted on two
counts for sexual acts involving a minor under the age of
fourteen. Prior to trial, the State filed a bill of particulars
(the Bill) providing the specific acts the State was alleging to
support the indictment, along with the statutory definitions of
“sexual contact” and “sexual penetration.” At the close of
trial, the Circuit Court of the Third Circuit (circuit court)
instructed the jury with modified statutory definitions of
“sexual penetration” and “sexual contact,” omitting certain
terms that were irrelevant to the evidence presented at trial.
The jury convicted Masuda-Mercado of Attempted Sexual Assault in
the First Degree and Continuous Sexual Assault of a Minor Under
the Age of Fourteen Years.
Masuda-Mercado appealed his conviction, arguing that
the definitions of “sexual penetration” and “sexual contact”
provided in the jury instructions allowed the jury to convict
him for conduct outside the specific acts included in the Bill.
The Intermediate Court of Appeals (ICA) agreed and vacated
Masuda-Mercado’s conviction. The ICA concluded that the
omission of the Bill’s acts from the jury instructions may have
erroneously contributed to Masuda-Mercado’s conviction.
We hold that, while a bill of particulars may limit
the evidence proffered at trial, it does not similarly bind what
may be included in jury instructions. We therefore conclude
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that the omission of the specific acts outlined in the Bill in
the circuit court’s jury instructions was not erroneous. We
further conclude that there is no reasonable possibility that
any error in the instructions contributed to Masuda-Mercado’s
conviction. Accordingly, we reverse the ICA’s October 11, 2024
Judgment on Appeal and affirm the circuit court’s December 16,
2022 Judgment of Conviction and Sentence.
II. BACKGROUND
A. Circuit Court Proceedings 1
On August 11, 2020, a grand jury indicted MasudaMercado on two counts: Sexual Assault in the First Degree, in
violation of Hawai‘i Revised Statutes (HRS) § 707-730(1)(b)
(2014) (Count 1); 2 and Continuous Sexual Assault of a Minor Under
the Age of Fourteen Years, in violation of HRS § 707-733.6
(2014) (Count 2). 3 J.E., the complaining witness as to both
1 The Honorable Wendy M. DeWeese presided.
2 HRS § 707-730(1)(b) provides in relevant part, “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[.]” (Emphasis added.)
3 HRS § 707-733.6 provides in relevant part:
(1) A person commits the offense of continuous sexual
assault of a minor under the age of fourteen years if the
person:
(a) Either resides in the same home with a minor
under the age of fourteen years or has
recurring access to the minor; and
(. . . continued)
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counts, was a minor under the age of fourteen at the time of the
alleged offenses.
Prior to trial and without request by Masuda-Mercado
or order by the circuit court, the State filed the Bill, which
included the statutory definitions of “sexual contact” and
“sexual penetration” as provided in HRS § 707-700 (2014 & Supp.
2016). 4 The Bill also clarified the specific acts the State
(b) Engages in three or more acts of sexual
penetration or sexual contact with the minor
over a period of time, while the minor is under
the age of fourteen years.
(2) To convict under this section, the trier of fact, if
a jury, need unanimously agree only that the requisite
number of acts have occurred; the jury need not agree on
which acts constitute the requisite number.
(Emphasis added.)
4 HRS § 707-700, which defined terms for this chapter, provides in relevant part:
“Sexual contact” means any touching, other than acts
of “sexual penetration”, of the sexual or other intimate
parts of another, or of the sexual or other intimate parts
of the actor by another, whether directly or through the
clothing or other material intended to cover the sexual or
other intimate parts.
“Sexual penetration” means:
(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
(. . . continued)
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alleged in support of each count of the indictment. As to Count
1, the Bill alleged that on July 2, 2019, Masuda-Mercado “used
his tongue and/or mouth to lick J.E.’s genitals; and/or [MasudaMercado] digitally penetrated J.E.’s genitals.” As to Count 2,
the Bill alleged that “between November 1, 2014 and August 31,
2018,” Masuda-Mercado “committed three or more acts of sexual
penetration and/or sexual contact” by “using his tongue and/or
mouth to lick and/or touch J.E.’s genitals; and/or touched
and/or penetrated J.E.’s genitals with his penis and/or hand
and/or an object.”
Also prior to trial, the State requested a jury
instruction on Count 1 that included the lesser included
offenses of Attempted Sexual Assault in the First Degree, Sexual
Assault in the Third Degree, 5 and Attempted Sexual Assault in the
Third Degree.
At trial, J.E. testified that she first met MasudaMercado in 2012, when he became a tenant in one of the houses on
(2) Cunnilingus or anilingus, whether or not actual
penetration has occurred.
For the purposes of this chapter, each act of sexual
penetration shall constitute a separate offense.
5 HRS § 707-732(1)(b) (2014) provides in relevant part, “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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her family’s property in Kailua-Kona. J.E. was five years old
at the time.
During the time Masuda-Mercado was a tenant on the
property, J.E. and her younger brother would frequently visit
Masuda-Mercado to play video games. One game console was
located in the living room and another was located in MasudaMercado’s bedroom. The siblings would often play from the
separate rooms and, usually, no adults other than Masuda-Mercado
were present.
J.E. testified that on several occasions, while she
was in the house playing video games, Masuda-Mercado would touch
her on the vagina. The touching occurred both over and under
J.E.’s clothing. This began when J.E. was five years old and
continued until she was at least eight. J.E. explained that
Masuda-Mercado usually touched her with his hands but that on
multiple occasions he had also used a vibrating sex toy, which
he held against her vagina. She also testified that, on two
occasions, Masuda-Mercado pushed her shorts aside, stuck his
head between her legs, and licked her vagina with his tongue.
J.E. further recounted at least one instance where MasudaMercado laid down on top of her in the bedroom and pushed his
penis against her vagina through their clothing.
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Masuda-Mercado moved off the property sometime in late
2017 or early 2018. At that time, J.E. had never told anyone
about the things that Masuda-Mercado had done to her.
J.E. testified that, on the evening of July 2, 2019,
Masuda-Mercado returned to the property where J.E. and her
family were still living. J.E. was twelve at the time. At some
point in the evening, J.E. asked Masuda-Mercado if he could help
her add more storage to her phone, at which point Masuda-Mercado
entered J.E.’s bedroom. J.E. provided the following account of
what transpired once she was alone with Masuda-Mercado in her
room:
A. He caressed my boob as he was trying to -- as we were
looking at something.
Q. And --A. I think that’s it.
Q. Did he try to touch you anywhere else?
A. Yeah, he tried to touch me on my vagina again but,
um, I kept trying to turn away.
Q. Did he actually ever touch you on the vagina that
night?
A. I’m not sure.
Q. Were you -- what were you wearing if you remember?
A. My leotard and shorts over my leotard ‘cause that’s
what I came home from gym in.
Q. Did he try to do anything else other than touch you?
A. I don’t think so.
Q. Did he say anything to you?
A. Yes.
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Q. What did he say?
A. I don’t remember what he said though.
Q. Did he say anything about your pants?
A. Uh, yeah. He, um, at one point threatened to pull it
down in the middle of the night jokingly.
Q. You say “jokingly.” How do you know he was joking?
A. By the tone of his voice.
Q. Did he try to?
A. No.
J.E. further testified that immediately after MasudaMercado left her room, J.E. sent a message to her best friend
about what Masuda-Mercado had done to her that evening. At some
point that same night, J.E.’s message to her best friend was
forwarded to J.E.’s mother. When approached by her mother, J.E.
confirmed that what was in the message was true. Eventually,
but not immediately, J.E. disclosed all of the other things
Masuda-Mercado had done to her in the past.
J.E.’s mother corroborated J.E.’s testimony, however,
she testified, concerning the evening of July 2, 2019, “I don’t
recall [J.E.] saying [Masuda-Mercado] touched her breasts. I
recall her saying that she -- he had touched other areas of
her.” J.E.’s mother confirmed that J.E. eventually told her
about the other incidents, including that “[Masuda-Mercado] had
licked her private areas[.]”
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After the State rested its case, the defense moved for
a judgment of acquittal as to both counts. As to Count 1, the
defense asserted “that the witness had testified that there was
only groping of her chest,” which was insufficient to support a
charge of Sexual Assault in the First Degree.
The circuit court granted Masuda-Mercado’s motion of
acquittal only as to the Count 1 offense of Sexual Assault in
the First Degree. However, the circuit court ruled, over the
defense’s objection, that Count 1 would go to the jury on two
lesser included offenses: Attempted Sexual Assault in the First
Degree and Attempted Sexual Assault in the Third Degree.
The defense called only one witness, Masuda-Mercado’s
ex-girlfriend and former roommate, Angelica Soto, who testified
that she lived with Masuda-Mercado from 2014 through 2018. Soto
testified that she was aware of times during that period when
Masuda-Mercado was alone in the house with the children. She
also testified that when J.E.’s mother told her about what
Masuda-Mercado had allegedly done to J.E., she did not believe
her.
After the State and the defense had rested, the
circuit court refused the jury instructions proposed by the
parties in favor of its own modified instructions. The circuit
court modified the statutory definition of “sexual penetration”
for purposes of the instructions, striking the terms “anal
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intercourse,” “fellatio,” “or anal,” and “or analingus” because
there was no evidence of that conduct adduced at trial. The
circuit court further reasoned that the terms should be omitted
because the Bill “appear[ed] to rely on the penetration and/or
attempted penetration of the genital opening rather than the
anus” or mouth.
The circuit court gave the instruction as drafted over
the defense’s objection that the term “deviate sexual
intercourse” should also be struck from the definition of
“sexual penetration” because the former term was “not clearly
defined.”
As to Count 1, the circuit court instructed the jury
in relevant part:
In Count 1 of the Indictment, you must consider
whether or not the Defendant, Joshua Masuda-Mercado,
committed the offense of Attempted Sexual Assault in the
First Degree.
A person commits the offense of Attempted Sexual
Assault in the First Degree if he intentionally engages in
conduct which, under the circumstances as he believes them
to be, constitutes a substantial step in a course of
conduct intended to culminate in his commission of Sexual
Assault in the First Degree.
There is one element of the offense of Attempted
Sexual Assault in the First Degree, which the prosecution
must prove beyond a reasonable doubt.
This element is:
1. The Defendant engaged in conduct which, under
the circumstances as the Defendant believed
them to be, was a substantial step in a course
of conduct intended by the Defendant to
culminate in the commission of Sexual Assault
in the First Degree.
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The State must also prove beyond a reasonable doubt:
2. That the Defendant acted intentionally with
respect to element 1 above; and
3. That this occurred on or about July 2, 2019 in
the County and State of Hawaiʻi. The exact date
is not required.
Conduct shall not be considered a substantial step
unless it is strongly corroborative of the Defendant’s
intent to commit Sexual Assault in the First Degree. A
person commits the offense of Sexual Assault in the First
Degree if he knowingly engages in sexual penetration with a
minor who is less than fourteen years old.
The law allows for the introduction of evidence for
the purpose of showing that there is more than one act by
the Defendant upon which proof of an element of an offense
may be based. In order for the prosecution to prove
element 1 above, all twelve jurors must unanimously agree
that the same act has been proved beyond a reasonable
doubt.
The Count 1 instructions also included an instruction
on the lesser included offense of Attempted Sexual Assault in
the Third Degree. This instruction, which largely followed the
previous instruction, similarly required the State to prove that
“[t]he Defendant engaged in conduct which, under the
circumstances as the Defendant believed them to be, was a
substantial step in a course of conduct intended by the
Defendant to culminate in the commission of Sexual Assault in
the Third Degree, specifically, touching J.E.’s genitals.”
As to Count 2, the circuit court instructed the jury
in relevant part:
In Count 2 of the Indictment, the Defendant, Joshua
Masuda-Mercado, is charged with the offense of Continuous
Sexual Assault of a Minor Under the Age of Fourteen Years.
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A person commits the offense of Continuous Sexual
Assault of a Minor Under the Age of Fourteen Years if the
person either resides in the same home with or has
recurring access to a minor, and engages in three or more
acts of sexual penetration or sexual contact with the minor
over a period of time while the minor is under the age of
fourteen years.
There are three elements of the offense of Continuous
Sexual Assault of a Minor Under the Age of Fourteen Years,
each of which the prosecution must prove beyond a
reasonable doubt.
These three elements are:
1. The Defendant either resided in the same home
with or had recurring access to J.E.; and
2. The Defendant engaged in three or more acts of
sexual penetration or sexual contact with J.E.;
and
3. That J.E. was under the age of fourteen years
at the time each act occurred.
The State must also prove beyond a reasonable doubt:
4. That the Defendant acted intentionally or
knowingly with respect to elements 1 and 2; and
5. That this occurred on or between November 1,
2014 through August 31, 2018, in the County and
State of Hawaiʻi. The exact date is not
required.
To convict the Defendant of Continuous Sexual Assault
of a Minor Under the Age of Fourteen Years you must
unanimously agree only that the requisite number of acts
have occurred. You do not have to unanimously agree on
which acts constitute the requisite number of acts.
As to the relevant terms “sexual penetration” and
“sexual contact,” the instructions provided:
The following definitions apply to the jury
instructions in this case:
“Sexual contact” means any touching, other than acts of
“sexual penetration”, of the sexual or other intimate parts
of a person not married to the actor, or of the sexual or
other intimate parts of the actor by the person, whether
directly or through the clothing or other material intended
to cover the sexual or other intimate parts.
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“Sexual penetration” means:
(1) Vaginal intercourse, deviate sexual intercourse, or
any intrusion of any part of a person’s body or of any
object into the genital opening of another person’s body;
it occurs upon any penetration, however slight, but
emission is not required. “Genital opening” includes the
anterior surface of the vulva or labia majora; or
(2) Cunnilingus, whether or not actual penetration has
occurred.
At the close of trial, the jury found Masuda-Mercado
guilty of Attempted Sexual Assault in the First Degree on Count
1 and Continuous Sexual Assault of a Minor Under the Age of
Fourteen Years on Count 2. The circuit court sentenced MasudaMercado to serve two concurrent twenty-year terms of
imprisonment.
B. Appellate Proceedings
Masuda-Mercado appealed his conviction, asserting that
the jury instructions were erroneous as to both Counts 1 and 2. 6
As to Count 1, Masuda-Mercado argued that the
definition of “sexual penetration” provided in the instruction
allowed the jury to convict him for conduct outside of the
specific acts included in the Bill. According to MasudaMercado, the jury should only have been able to convict him of
6 Included in his second point of error, Masuda-Mercado also challenged the “non-unanimity” requirement of HRS § 707-733.6 as unconstitutional. In order to convict under HRS § 707-733.6, the jury “need unanimously agree only that the requisite number of acts have occurred” and “need not agree on which acts constitute the requisite number.” Following briefing, and before the ICA issued its Summary Disposition Order in the present case, this court upheld the unanimity requirement in HRS § 707-733.6 as constitutional in State v. Tran, 154 Hawai‘i 211, 549 P.3d 296 (2024).
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Attempted Sexual Assault in the First Degree if it found beyond
a reasonable doubt that he had attempted to “(a) lick or (b)
digitally penetrate” [J.E.]’s genitals.” Thus, he argued, the
broader definition of “sexual penetration” amounted to a
“violation of [his] due process rights to proof in conformity
with the notice provided to him by the [Bill].”
As to the instruction on Count 2, Masuda-Mercado’s
arguments largely mirrored those he raised as to Count 1.
Specifically, he argued that the included definitions of “sexual
penetration” and “sexual contact” “expanded the number of acts”
for which he could be convicted of Continuous Sexual Assault of
a Minor Under the Age of Fourteen Years and “violated the
State’s specification to prosecute only those [acts] specified
in [the Bill].”
The State answered that the circuit court correctly
instructed the jury as to the elements for Counts 1 and 2, and
the instructions were therefore “not erroneous as a matter of
law.” Moreover, the State insisted that there was no real
possibility that any alleged error in the instructions
contributed to Masuda-Mercado’s conviction. There was no
variance between the Bill and the proof presented at trial, and
any variance between the Bill and the language in the
instructions was inconsequential.
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The ICA vacated Masuda-Mercado’s convictions and
remanded his case for a new trial on the basis that the jury
instructions given as to Count 1 and Count 2 were erroneous.
The ICA noted that the specific acts alleged in the
Bill differed from the broader statutory definitions of “sexual
penetration” and “sexual contact” provided in the jury
instructions. Although the Bill included the statutory
definitions of “sexual penetration” and “sexual contact,” the
ICA held that the circuit court erred when it included
definitions of those terms in the jury instructions without also
including the specific acts alleged in the Bill.
As to Count 1, the ICA noted that the circuit court’s
definition of “sexual penetration” included “deviate sexual
intercourse,” which is a term with its own statutory definition. 7
The ICA concluded that its inclusion was error, reasoning:
When considering the modification of the charge, the
breadth of testimony related to sexual acts occurring prior
to Count 1’s timeframe, the lack of specificity in the
culminated offense, and the definitions provided, there was
a reasonable possibility that omitting the Bill of
Particulars Count 1 acts from the instructions while
including a broadened definition of sexual penetration
(i.e., deviate sexual intercourse) may have contributed to
Masuda-Mercado’s Count 1 conviction.
(Citation omitted.)
7 HRS § 707-700 defines “deviate sexual intercourse” as “sexual gratification between a person and an animal or corpse, involving the sex organs of one and the mouth, anus, or sex organs of the other.” It is uncontested that no evidence was adduced at trial suggesting that MasudaMercado engaged in “deviate sexual intercourse” within the meaning of the Hawaiʻi Penal Code.
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Similarly, the ICA concluded that the circuit court’s
instruction as to Count 2, Continuous Sexual Assault of a Minor
Under the Age of Fourteen Years, was erroneous where “the
instruction to the jury did not include the Bill of Particulars
Count 2 acts.” The ICA took further issue with the “expansive
definition of sexual contact” included in the jury instruction:
When comparing the acts identified in the Bill of
Particulars Count 2 and the definition of “sexual contact”
in the instruction, the Bill of Particulars Count 2 limited
sexual contact to the touching of complainant’s genitals
whereas the jury was instructed more expansively that
“sexual contact” meant any touching of sexual or other
intimate parts.
Where some of the testimony referred to “privates” as
opposed to “genitals,” there was a reasonable possibility
that omitting the specific acts in the Bill of Particulars
Count 2 from the instruction while including the expansive
definition of sexual contact may have contributed to
Masuda-Mercado’s Count 2 conviction.
The State sought certiorari review by this court,
which we granted.
III. STANDARD OF REVIEW
When jury instructions or the omissions thereof are
at issue on appeal, the standard of review is whether, when
read and considered as a whole, the instructions given are
prejudicially insufficient, erroneous, inconsistent, or
misleading. Erroneous instructions are presumptively
harmful and are ground for reversal unless it affirmatively
appears from the record as a whole that the error was not
prejudicial. However, error is not to be viewed in
isolation and considered purely in the abstract. It must
be examined in the light of the entire proceedings and
given the effect which the whole record shows it to be
entitled. In that context, the real question becomes
whether there is a reasonable possibility that error might
have contributed to conviction. If there is such a
reasonable possibility in a criminal case, then the error
is not harmless beyond a reasonable doubt, and the judgment
of conviction on which it may have been based must be set
aside.
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State v. Nichols, 111 Hawaiʻi 327, 334, 141 P.3d 974, 981 (2006)
(citation and brackets omitted) (emphases added).
IV. DISCUSSION
The State presents two questions to this court:
1. Whether the ICA gravely erred in holding that the
jury instructions for the included offense of
Attempted Sexual Assault in the First Degree and
Continuous Sexual Assault of a Minor Under the Age of
Fourteen Years were erroneous as a matter of law
because the instructions did not include the specific
acts found in the Second Amended Bill of Particulars.
2. Whether the ICA gravely erred in holding that the
errors in the jury instructions were not harmless
beyond a reasonable doubt.
The State contends that the jury instructions were not
prejudicially “insufficient, erroneous, inconsistent, or
misleading just because they did not quote word-for-word the
[Bill].” We agree. Accordingly, we conclude the ICA erred when
it held that the jury instructions as to Counts 1 and 2 were
prejudicially erroneous.
A bill of particulars provides a defendant with notice
as to the specifics of the charges brought against him. This is
distinct from the purpose of jury instructions, which is to
inform the jury as to the applicable law. Although it would
have been preferable for the circuit court to tailor its
instructions to fit the specific conduct alleged in the Bill,
the omission of those specific acts from the jury instructions
here did not allow the jury to convict Masuda-Mercado for “other
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conduct going beyond the [B]ill.” Nor did it defeat the Bill’s
purpose.
The Bill limited the proof the State was allowed to
present. Here, that was evidence that Masuda-Mercado “us[ed]
his tongue and/or mouth to lick and/or touch J.E.’s genitals;
and/or touched and/or penetrated J.E.’s genitals with his penis
and/or hand and/or an object.” Nothing in the evidence put on
by the State pointed to conduct beyond what was alleged in the
Bill. And there is no reasonable possibility that any other
potential error in the instruction, be it the inclusion of the
lesser included offenses or the provided definitions of “sexual
penetration” and “sexual contact,” could have contributed to
Masuda-Mercado’s convictions.
A. Jury Instructions Are Not Required to Include the Specific
Acts Outlined in a Bill of Particulars
A bill of particulars, a “formal, detailed statement
of the claims or charges brought by a . . . prosecutor,” serves
a fundamentally different purpose than jury instructions. Bill
of Particulars, Black’s Law Dictionary (12th ed. 2024); see
State v. Reed, 77 Hawaiʻi 72, 78, 881 P.2d 1218, 1224 (1994),
overruled on other grounds by State v. Balanza, 83 Hawaiʻi 279, 1
P.3d 281 (2000). Much like an indictment, a bill of particulars
provides notice and “is designed to enable the defendant to
prepare for trial and prevent surprise.” Reed, 77 Hawaiʻi at 78,
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881 P.2d at 1224 (quotation marks and citation omitted); State
v. Valenzona, 92 Hawaiʻi 449, 452, 992 P.2d 718, 721 (App. 1999)
(noting the trial court had discretion to require a bill of
particulars to inform the defendant of the specifics of the
charge). It also has a secondary function to permit defendants
to plead double jeopardy in the event of a later prosecution for
the same offense. Reed, 77 Hawaiʻi at 78, 881 P.2d at 1224.
Bills of particulars are typically furnished upon
request by the defendant or court order. When a trial court “is
of the opinion that the accused in any criminal case has been
actually misled and prejudiced in the accused’s defense” by the
charging document, HRS § 806-47 (2014) permits the court to
order the prosecution to file a bill of particulars on “matters
in regard to which the court finds the defendant should be
informed.” 8 Factual allegations contained in a bill of
8 HRS § 806-47, “Bill of particulars,” provides:
If the court is of the opinion that the accused in
any criminal case has been actually misled and prejudiced
in the accused’s defense upon the merits of any defect,
imperfection, or omission in the indictment, insufficient
to warrant the quashing of the indictment, or by any
variance, not fatal, between the allegations and the proof,
the prosecuting officer shall, when so ordered by the
court, acting upon its own motion or upon motion of the
prosecution or defendant, file in court and serve upon the
defendant, upon such terms as the court imposes, a bill of
particulars of the matters in regard to which the court
finds that the defendant should be informed.
In determining whether further information, and if so
what information, is desirable for the defense of the
accused upon the merits of the case, the court shall
(. . . continued)
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particulars “limit the government’s case at trial in the same
manner as factual allegations in an original charging
instrument.” Wayne R. LaFave, et al, 5 Criminal Procedure
§ 19.4(a) (4th ed. 2024).
Jury instructions, on the other hand, educate jurors
about the law and their role and responsibilities throughout
trial and deliberations. Tittle v. Hurlbutt, 53 Haw. 526, 530,
497 P.2d 1354, 1357 (1972) (“The function served by jury
instructions is to inform the jury of the law applicable to the
current case.”). They are designed to “aid[] the jury in
applying [applicable] law to the facts of the case.” State v.
Apao, 59 Haw. 625, 645, 586 P.2d 250, 263 (1978).
Although we have held that the “State is limited to
proving the particulars specified in the bill” and that
“[u]nimportant variances between the proof and a bill of
particulars have been ignored,” State v. Erickson, 60 Haw. 8, 9,
586 P.2d 1022, 1023 (1978), Hawaiʻi law is silent as to the
effect of a bill of particulars on jury instructions.
Courts in other jurisdictions have noted the limited
scope of a bill of particulars. E.g., Dzikowski v. State, 82
A.3d 851, 861 (Md. 2013) (“The bill of particulars functions as
a limit on the factual scope of the charge, rather than its
consider the whole record of the case and the entire course
of the proceedings against the accused.
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legal scope.”); State v. Sellards, 478 N.E.2d 781, 784 (Ohio
1985) (“A bill of particulars has a limited purpose—to elucidate
or particularize the conduct of the accused alleged to
constitute the charged offense.”).
Other jurisdictions have also declined to require jury
instructions to mirror exactly the facts alleged in a bill of
particulars or other charging document. The Delaware Supreme
Court rejected a defendant’s argument that the trial court erred
as a matter of law when it failed to instruct the jury on the
specific alleged acts set forth in the bill of particulars.
Robinson v. State, 600 A.2d 356, 361 (Del. 1991). The Delaware
court emphasized the purpose of the bill to “apprise a defendant
of what he may expect to meet at trial,” and noted that the
provided jury instruction included a definition of each of the
statutory elements of the offense. Id. The Wyoming Supreme
Court similarly declined to find error where the trial court
rejected the defendant’s proposed jury instructions that
described “specific acts as they had been identified” by the
charging documents. Brown v. State, 817 P.2d 429, 438 (Wyo.
1991). That court reasoned that the defendant’s proposed
instructions “would have circumscribed the fact finding process
for the jury,” and run contrary to the function of jury
instructions, which is to “inform the jury about the applicable
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law so that the jury may apply that law to its own findings with
respect to material facts.” Id. at 438-39.
Consistent with this persuasive authority, we hold the
trial court is not required to instruct the jury in the exact
words of the bill of particulars, provided the instruction is
not inconsistent or misleading. This holding is consistent with
our appellate review of jury instructions:
Error is not to be viewed in isolation and considered
purely in the abstract. It must be examined in the light
of the entire proceedings and given the effect which the
whole record shows it to be entitled. In that context, the
real question becomes whether there is a reasonable
possibility that error may have contributed to conviction.
Nevertheless, the trial court is not required to
instruct the jury in the exact words of the applicable
statute but to present the jury with an understandable
instruction that aids the jury in applying that law to the
facts of the case. 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. If that standard is met,
however, the fact that a particular instruction or isolated
paragraph may be objectional, as inaccurate or misleading,
will not constitute ground for reversal.
State v. Iuli, 101 Hawaiʻi 196, 203, 65 P.3d 143, 150 (2003)
(citations, quotation marks, ellipses, and brackets omitted)
(emphasis added).
Given the record in this case and the differing
purposes between a bill of particulars (notice to the defendant)
and jury instructions (educating the jury on the law that must
be applied to the evidence presented), the omission of the
particular conduct alleged in the Bill from the jury
instructions was not “prejudicially insufficient, erroneous,
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inconsistent, or misleading.” See State v. Kelekolio, 74 Haw.
479, 515, 849 P.2d 58, 74 (1993).
B. There Is No Reasonable Possibility that Any Error in the
Instructions as to Count 1 Contributed to Masuda-Mercado’s
Conviction of Attempted Sexual Assault in the First Degree
Examining the alleged error in the jury instruction as
to Count 1, the ICA concluded that “there was a reasonable
possibility that omitting the Bill of Particulars Count 1 acts
from the instructions while including a broadened definition of
sexual penetration (i.e., deviate sexual intercourse) may have
contributed to Masuda-Mercado’s Count 1 conviction.”
We disagree. As noted above, any error in an
instruction “is not to be viewed in isolation and
considered purely in the abstract,” but instead “must be
examined in the light of the entire proceedings and given
the effect which the whole record shows it to be entitled.”
Nichols, 111 Hawai‘i at 334, 141 P.3d at 981. Reviewing the
record as a whole, there is no reasonable possibility that
any error in the instruction contributed to MasudaMercado’s Count 1 conviction of Attempted Sexual Assault in
the First Degree.
1. Modification of the charged offense
As an initial matter, the “modification” from the
charge of Sexual Assault in the First Degree to the jury
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instructions on Attempted Sexual Assault in the First and Third
Degrees was not erroneous as a matter of law.
We have expressly recognized that Attempted Sexual
Assault in the First Degree is an included offense of Sexual
Assault in the First Degree. State v. Bailey, 126 Hawaiʻi 383,
404, 271 P.3d 1142, 1163 (2012) (concluding there was a rational
basis in the evidence for giving the lesser included offense
instruction on Attempted Sexual Assault in the First Degree);
see also HRS § 701-109(4)(b) (Supp. 2018) (permitting conviction
of an included offense that “consists of an attempt to commit
the offense charged”). Similarly, in State v. Malave, we held
that “Sexual Assault 3 is an included offense of Sexual Assault
1 pursuant to HRS § 701-109(4)(c).” 146 Hawaiʻi 341, 352, 463
P.3d 998, 1009 (2020); see also HRS § 701-109(4)(c) (Supp. 2018)
(permitting conviction of an included offense that “differs from
the offense charged only in the respect that a less serious
injury . . . suffices to establish its commission”).
The presence of a bill of particulars does not change
this analysis. With a function similar to an indictment or
other charging document, the bill of particulars, while limiting
the State’s case at trial, does not similarly limit instructions
to the jury as to the applicable law. See LaFave, et al., 5
Criminal Procedure § 19.4(a) (“The rules governing variance
between proof and pleading apply to the bill of particulars just
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as they do to an indictment or information.”). It was therefore
not “prejudicially insufficient, erroneous, inconsistent, or
misleading” to instruct the jury as to Attempted Sexual Assault
in the First and Third Degrees. See Kelekolio,74 Haw. at 515,
849 P.2d at 74.
2. “Testimony related to sexual acts occurring prior to
Count 1’s timeframe” and “lack of specificity in the
culminated offense”
Without specifying what testimony it relied upon or
how the jury’s consideration of that testimony would have
prejudiced the Defendant, the ICA concluded that the “breadth of
testimony related to sexual acts occurring prior to Count 1’s
timeframe” could have erroneously contributed to MasudaMercado’s Count 1 conviction.
The charges as to Count 1 were temporally limited to
the night of July 2, 2019. This was clearly laid out in both
the Bill and the jury instructions. 9 Our court presumes “that
jurors are reasonable and generally follow the instructions they
are given.” State v. Sing, 154 Hawai‘i 377, 387, 550 P.3d 1235,
1245 (2024) (citation omitted). Thus, here, we presume that the
jury understood that their determination as to the conduct
elements of Count 1 was limited to the specific testimony
9 Both the Bill and the jury instructions expressly stated that the offenses alleged in Count 1 occurred “on or about July 2, 2019.”
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presented as to Masuda-Mercado’s actions on the night of July 2,
2019.
J.E.’s testimony, which the circuit court
characterized as the “only credible testimony on what happened,”
clearly indicated that what happened on July 2, 2019, occurred
on a single evening when Masuda-Mercado returned to J.E.’s
residence after having moved out the year prior. Further,
J.E.’s testimony about the events of July 2, 2019, was clearly
distinct from her testimony as to any prior sexual acts.
J.E.’s testimony regarding “sexual acts” prior to July
2, 2019, went directly to Masuda-Mercado’s interactions with
J.E. between 2014 and 2018, which was the relevant period for
Count 2. The “breadth” of the testimony regarding prior sexual
acts was merely a product of how frequently those acts occurred.
A review of the transcripts shows that the timelines for the
alleged acts of Count 1 and Count 2 were clearly delineated
during the course of trial. Affording due credit to the jury as
factfinder, there was no reasonable possibility that the jury
would have misunderstood the testimony to confuse MasudaMercado’s prior conduct with his specific conduct on the night
of July 2, 2019.
Regarding Masuda-Mercado’s acts on July 2, 2019, when
he was alone with J.E. in her bedroom, J.E. testified that
Masuda-Mercado threatened to pull down her shorts and tried to
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touch her vagina. If found by the jury to have occurred, these
acts in context would support a conviction on the Count 1
offense of Attempted Sexual Assault in the First Degree. One
necessary element as to the conviction for Attempted Sexual
Assault in the First Degree was that Masuda-Mercado intended to
sexually penetrate J.E. Given that the jury heard testimony
regarding multiple prior instances in which Masuda-Mercado had
sexually penetrated J.E., 10 it was reasonable for the jury to
infer that Masuda-Mercado’s acts on July 2, 2019, constituted a
“substantial step in a course of conduct” intended by MasudaMercado to culminate in sexual penetration of a minor under the
age of fourteen years. 11
The ICA also cited the “lack of specificity in the
culminated offense” as a factor in finding reversible error.
10 While the “testimony related to sexual acts occurring prior to Count 1’s timeframe” could not be considered as to the conduct element of Count 1, that testimony could have properly been considered as evidence of Masuda-Mercado’s intent for purposes of the attempt offense. See State v. Kiese, 126 Hawai‘i 494, 502-03, 273 P.3d 1180, 1188-89 (2012) (quoting State v. Sadino, 64 Haw. 427, 430, 642 P.2d 534, 536-37 (1982)) (“[T]he mind of an alleged offender may be read from his acts, conduct, and inferences fairly drawn from all the circumstances.”); accord Hawai‘i Rules of Evidence Rule 404(b) (2016) (allowing for the admission of “[e]vidence of other crimes, wrongs, or acts” where such evidence is probative of intent).
11 The attempt instruction here provided, “Conduct shall not be considered a substantial step unless it is strongly corroborative of the Defendant’s intent to commit Sexual Assault in the First Degree.” This language is nearly identical to the attempt instruction at issue in State v. Sawyer, 88 Hawai‘i 325, 335, 966 P.2d 637, 647 (1998), which we upheld as “not ‘prejudicially insufficient, erroneous, inconsistent, or misleading.” Id. There, we reasoned that the attempt instruction, which was patterned after HRS § 705-500(2) (1993), was proper because it was clear, contained qualifying language, and did not instruct the jury that the defendant’s conduct alone was a “substantial step” of the offense. Id.
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Masuda-Mercado was convicted on Count 1 of Attempted Sexual
Assault in the First Degree. The culminated offense, Sexual
Assault in the First Degree, occurs upon knowing sexual
penetration of a minor under the age of fourteen years. HRS
§ 707-730(1)(b). By definition, sexual penetration can happen
in a number of ways, including cunnilingus and/or digital
penetration of the genital opening. HRS § 707-700. As to Count
1, the Bill alleged that Masuda-Mercado had licked and/or
digitally penetrated J.E.’s genitals. J.E. testified that
Masuda-Mercado had threatened to pull down her shorts and
attempted to touch her vagina. She also testified that on
multiple prior occasions Masuda-Mercado had touched her vagina
under the clothes and licked her vagina. In closing, the State
argued as to Count 1 that Masuda-Mercado “wanted to put his head
between [J.E.’s] legs” and “tried to touch her vagina.” The
proof tracked the Bill. The evidence presented by the State
conformed with the limitations it imposed on itself in the Bill.
See Robinson, 600 A.2d at 361. Thus, there is no basis to
conclude that the jury based its Count 1 conviction on any
“conduct going beyond the [B]ill.”
3. There was no prejudicial error in the definition of
“sexual penetration” in Count 1
Masuda-Mercado argues that “[t]he ICA rightly held
that the circuit court erred in giving . . . expansive statutory
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definitions” of the terms “sexual penetration” and “sexual
conduct.” These “expansive” definitions, he argues, “stray[ed]
beyond the limitations imposed by the [Bill].” We disagree and
conclude that the modified definition of “sexual penetration” in
the jury instruction was not prejudicially erroneous.
As an initial matter, the definition of “sexual
penetration” provided in the jury instructions was not broadened
in relation to the Bill, which included the full statutory
definition of the term. As such, and contrary to MasudaMercado’s contention, the definition of “sexual penetration”
given in the instructions was narrower than the definition
provided in the Bill because the circuit court modified the
statutory definition by removing all reference to fellatio or
anal penetration.
The ICA concluded that including the term “deviate
sexual intercourse” in the instruction was error, reasoning that
“[a]lthough the State presented no evidence of deviate sexual
intercourse as statutorily defined, there is a reasonable
possibility the jury may have interpreted Masuda-Mercado’s
alleged sexual interactions with complainant as deviating from
the norms of society.” We have held that the instructions
defining an offense “should refer only to those items or factors
having a rational basis in the evidence adduced at trial and not
otherwise excludable.” State v. Kupihea, 98 Hawai‘i 196, 206, 46
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P.3d 498, 508 (2002). Thus, to the extent that there was no
basis in the evidence to support a finding of “deviate sexual
intercourse” as statutorily defined, the circuit court erred in
including that term in the instruction.
However, our analysis does not end there. See
Nichols, 111 Hawai‘i at 334, 141 P.3d at 981. Examining the
instruction in light of the entire proceedings, we conclude that
any error resulting from the inclusion of “deviate sexual
intercourse” in the jury instructions could not have prejudiced
Masuda-Mercado and was harmless beyond a reasonable doubt.
Even if, as the ICA posits, the jury understood
“deviate sexual intercourse” to mean any “sexual interactions
. . . deviating from the norms of society,” the error would have
nevertheless been harmless. The application of that definition
to the evidence actually presented at trial would have been
sufficient to support a finding of “sexual penetration” because,
as argued by the State, “[a]ny kind of sexual intercourse
between [Masuda-Mercado] and [J.E.], ‘deviate’ or otherwise,
would suffice to prove the offenses here, given [J.E.’s] age.”
The jury heard testimony from J.E. that Masuda-Mercado
threatened to take down her pants and attempted to touch her
vagina. The jury had previously heard testimony that MasudaMercado had performed cunnilingus on J.E. and touched her vagina
under the clothes with both his hand and an object on multiple
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occasions. Additionally, the jury was instructed that “[y]ou
must consider only the evidence that has been presented to you
in this case and inferences drawn from the evidence which are
justified by reason and common sense,” and “[y]our verdict must
be based solely on the evidence presented.” On this record,
there was no evidence presented of any other “sexual
interactions” that would not have been sufficient, if believed
by the jury to have occurred, to support a finding that MasudaMercado attempted to sexually penetrate J.E. on July 2, 2019.
To the extent that inclusion of the term “deviate
sexual intercourse” without further definition was in error,
there is no reasonable possibility that it contributed to
Masuda-Mercado’s conviction. Accordingly, any error as to
Count 1 was harmless beyond a reasonable doubt.
C. The Circuit Court’s Instructions as to Count 2 Were Not
Erroneous
As established above, while the State is limited to
proving the particulars outlined in the Bill at trial, nothing
in our caselaw or in that of other jurisdictions suggests that
the specific acts outlined in a bill of particulars must also be
reproduced in the jury instructions as a matter of law. See
Robinson, 600 A.2d at 361; Brown, 817 P.2d at 438.
The ICA found prejudicial error where “the Bill of
Particulars Count 2 limited sexual contact to the touching of
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the complainant’s genitals whereas the jury was instructed more
expansively that ‘sexual contact’ meant any touching of sexual
or other intimate parts.” Specifically, the ICA reasoned that
“testimony referr[ing] to ‘privates’ as opposed to ‘genitals’ .
. . may have contributed to Masuda-Mercado’s Count 2
conviction.” We disagree. As argued by the State, “there was
no actual variance between the proof offered at trial and the
acts alleged in the [Bill].”
Here, although the definition of “sexual contact”
encompassed conduct outside of the specific acts alleged in
Count 2 of the Bill, any error in providing that definition was
harmless beyond a reasonable doubt. The fact that the statutory
definition was provided in both the Bill and the jury
instruction demonstrates that, contrary to the ICA’s holding,
the jury instruction did not expand the conduct for which the
jury could have sustained a conviction against Masuda-Mercado
for Continuous Sexual Assault of a Minor Under the Age of
Fourteen Years.
J.E. expressly testified that between November 1,
2014, and August 31, 2018, Masuda-Mercado usually touched her
vagina with his hands but that he also used a vibrating sex toy
to rub her vagina on multiple occasions and twice licked her
vagina with his tongue. J.E. also testified that on at least
one occasion, Masuda-Mercado pushed his penis against her vagina
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through their clothing while laying on top of her. At all
relevant times, J.E. was under the age of fourteen. When asked
to clarify where on her body Masuda-Mercado had touched her, she
replied, “[m]y vagina.” The term “vagina,” while perhaps
imprecise and non-technical, had a clear meaning in context of
the testimony. That she used the term “vagina” as opposed to
“genitals” is an unimportant variance between the proof and the
Bill and should be ignored. Erickson, 60 Haw. at 9, 586 P.2d
1023; Charles A. Wright & Arthur R. Miller, 1 Federal Practice
and Procedure § 130 (5th ed. May 20, 2025 update)
(“[U]nimportant variances will be ignored.”).
The same is true of the term “privates,” which was not
actually used by J.E. in her testimony. Rather, on crossexamination, defense counsel asked J.E. if she had told her
mother that Masuda-Mercado had licked her in her “private
parts.” The State reiterated the question on redirect. And
while it is true that young children may use the term “privates”
or “private parts” to describe body parts other than their
genitals, there was no such ambiguity here. The questions about
J.E.’s “private parts” came after she had testified on direct
that Masuda-Mercado would use his tongue to lick her vagina.
Regardless of the precise words J.E. used to describe
Masuda-Mercado’s actions, all of J.E.’s testimony relevant to
Count 2 was limited to instances of Masuda-Mercado contacting
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her vagina, whether with his tongue, his hand, an object, or
through their clothes with his penis. There was no testimony of
other contact during the relevant period for Count 2 that might
reasonably be misconstrued as touching J.E.’s “sexual or other
intimate parts.” See HRS § 707-700. Further, there was no
contrary testimony or clarifying evidence put on by the defense.
The defense’s lone witness, Angelica Soto, was never present
when the conduct occurred and testified only that she didn’t
believe it when J.E.’s mother told her what Masuda-Mercado had
done to J.E.
It was the province of the jury to interpret and weigh
the evidence before it. Kelekolio, 74 Haw. at 515, 849 {.2d at
75. And, as reiterated above, the jury was instructed that it
“must consider only the evidence that has been presented . . .
in this case.” On this record, there is no reasonable
possibility that the use of the term “vagina,” or limited use of
“privates,” as opposed to “genitalia” could have contributed to
Masuda-Mercado’s conviction as to Count 2.
//
//
//
//
//
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V. CONCLUSION
For the foregoing reasons, the ICA’s October 11, 2024
Judgment on Appeal is reversed and the Circuit Court of the
Third Circuit’s December 16, 2022 Judgment of Conviction and
Sentence is affirmed.
Charles E. Murray III /s/ Mark E. Recktenwald for petitioner
/s/ Sabrina S. McKenna
Benjamin E. Lowenthal
for respondent /s/ Todd W. Eddins
/s/ Lisa M. Ginoza
/s/ Vladimir P. Devens
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