State v. Silver, 249 P.3d 1141

Background

Silver faced five counts of sexual assault in the third degree for alleged conduct with an 11-year-old Minor in Maui (pool and late-night massages).
Indictment charged Counts 1, 3, 5 for buttock touching and Counts 2, 4 for penile touching; Counts 1–5 originate from July 2004 incidents at the Josefsbergs’ condo.
Trial evidence included Minor’s testimony of waking to Silver rubbing him and touching his buttocks and penis; Minor’s father described pool horseplay but not sexual contact.
The circuit court denied most HRPP Rule 29 motions; ultimately Silver was convicted on Counts 1, 3–5 and acquitted on none at trial, with Count 2 later granted on post-trial motion.
The ICA affirmed the circuit court, including Count 1 against sufficiency, except on Count 1 where the ICA found sufficient evidence; the Hawaiʻi Supreme Court granted certiorari.
The Hawaiʻi Supreme Court reversed Count 1 for insufficiency of the evidence and remanded for entry of acquittal on Count 1 while leaving other counts intact.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Was Count 1’s buttocks pool touching legally insufficient?	Silver’s buttock touching in pool context, when viewed with other conduct, could form an intimate-part touching.	Pool horseplay did not involve an intimate part; subsequent massages cannot retroactively supply insufficiency for Count 1.	Count 1 insufficient; reverse and acquit on Count 1; other counts upheld.
Did the trial court err in excluding a prior inconsistent statement?	Prior statements relevant to credibility were properly admitted.	Critical prior inconsistent statements were improperly excluded.	Not dispositive here; analysis focused on sufficiency; issue acknowledged but not sustaining conviction.
Did testimony by psychologist Bivens amount to admissible credibility evidence or improper opinion?	Bivens opined on truthfulness of Minor’s statements.	Such testimony improperly usurps jury function.	Explore context; core holding did not sustain Count 1’s insufficiency finding.
Did prosecutorial arguments about sexual predator profiles and grooming lack evidentiary support?	Profiling arguments were grounded in evidence of conduct.	No direct evidentiary support for such profiles; improper suggestion.	Not decisive to reverse Counts 3–5; no ruling on misconduct alone.
Does touching a child’s buttocks during horseplay or massage constitute third-degree sexual assault and is there adequate notice?	Buttocks can be an intimate part under the statute; context supports notice.	Buttocks reluctance to be included as intimate parts; notice should be limited.	Buttocks included as intimate parts; statute provides notice for Counts 3–5.

Key Cases Cited

State v. Kalani, 108 Hawai'i 279, 118 P.3d 1222 (2005) (buttocks as intimate parts supported by legislative history and in pari materia)
State v. Matavale, 115 Hawai'i 149, 166 P.3d 322 (2007) (substantial evidence standard; sufficiency review)
State v. Richie, 88 Hawai'i 19, 960 P.2d 1227 (1998) (notice and context in sexual conduct definitions)
State v. Rodgers, 68 Haw. 438, 718 P.2d 275 (1986) (in pari materia construction of sexual statutes)
Bannister v. State, 60 Haw. 658, 594 P.2d 133 (1979) (double jeopardy implications on insufficiency reversals)
Hawaii Gov't Employees Ass'n, AFSCME Local 152, AFL-CIO v. Lingle, 124 Hawai'i 197, 239 P.3d 1 (2010) (statutory interpretation and context in public policy)
State v. Kalani, 108 Hawai'i 279, 118 P.3d 1222 (2005) (interpreting intimate parts and historical definition of sexual contact)
State v. Yoshida, 45 Haw. 50, 361 P.2d 1032 (1961) (evidence admissibility and motive/intent considerations)