Saturday, February 13, 2016

Making Sense of the Statute of Limitations "Defense"

State v. Abdon (HSC January 12, 2016)
Background. June-June Mas Abdon was indicted with the offense of sexual assault in the first degree by way of forcing his penis into the complainant’s vagina. It was alleged that the offense took place “[o]n or about the 1st day of June, 1997, to and including the 30th day of June, 1997.” The indictment alleged that the complainant was born on April 26, 1988, turned eighteen in 2006, and was still alive. The indictment was dated on April 24, 2012—two days after the complainant’s 24th birthday.

At trial, the complainant confirmed her birthday was on April 26, 1988. She identified Abdon as her uncle and testified that in June 1997, when she was nine years old, Abdon sexually assaulted her in a bedroom by touching her vagina with his hand and forcing his penis into her vagina. She did not report the incident until she was in college in 2010. Abdon testified and denied touching her inappropriately.

After the evidence, the parties discussed jury instructions. Abdon requested sexual assault in the third degree as a lesser-included offense (non-penetrating, but sexual contact). Over the objection of both the prosecution and Abdon, the court refused to give the instruction. Abdon was found guilty as charged.

During a post-trial meeting, the court instructed Abdon to file a motion for judgment on acquittal based on the statute of limitations. Abdon did so and argued that the prosecution failed to prove beyond a reasonable doubt. In the end, however, the court denied the motion. Abdon was sentenced to 20 years prison. He appealed. The ICA vacated the judgment n the grounds that the lesser-included offense should have been given. Abdon applied to the HSC, however, to review the denial of the motion for judgment of acquittal.

The Statute of Limitations “Defense.” In addition to the elements of the offense, the prosecution must also prove beyond a reasonable doubt “[f]acts establishing that the offense was committed within the time period specified in section 701-108.” HRS § 701-114. A class A felony must be initiated within six years of the offense. HRS § 701-108(2)(b). The statute of limitations, however, “does not run . . . [f]or any felony offense under chapter 707, part V or VI, during any time when the victim is alive and under eighteen years of age.” HRS § 701-108(6)(c). And so the six-year limitation doesn’t run unless and until the complainant is alive and is under eighteen. In other words, the prosecution has six years to initia08te proceedings after the complainant’s 18th birthday—which in this case would put us at April 26, 2012.

The prosecution “is commenced either when an indictment is found or a complaint filed, or when an arrest warrant or other process is issued.” HRS § 701-108(5). The true bill of the indictment here was dated April 24, 2012.

Proving Timeliness. But that’s not the issue. Abdon argued that the prosecution did not present this evidence to the jury. After all, the timeliness of the prosecution is one of the facts that must be proven beyond a reasonable doubt. HRS § 701-114(1)(e). Failure to prove that fact means that “innocence of the defendant is presumed.” HRS § 701-114(2). It is well-established that the prosecution bears the burden of proving that the prosecution was timely. State v. Stan’s Contracting, Inc., 111 Hawaii 17, 33, 137 P.3d 331, 347 (2006); State v. Iuli, 101 Hawaii 196, 207, 65 P.3d 143, 154 (2003); State v. Correa, 5 Haw. App. 644, 650, 706 P.2d 1321, 1325 (1985).

In this case, the prosecution presented evidence through the testimony of the complainant that the offense took place in June 1997, when the complainant was under the age of 18. It also showed when she was born and that she was alive. However, there was no evidence as to when the prosecution commenced—the issuance of the indictment.

Getting Around Waiver. The HSC held that Abdon did not waive the right to bring up the statute of limitations defense when it requested the lesser-included offense. The statute of limitations defense is waivable by the defendant. State v. Timoteo, 87 Hawaii 108, 114, 952 P.2d 865, 871 (1997). The HSC rejected the ICA’s conclusion that Abdon waived the statute of limitations defense by requesting an instruction for the lesser-included offense. According to the HSC, while it is true that requesting a lesser-included offense does indicate that the defendant agrees that he or she may be convicted of that offense, but that does not automatically mean that the defendant has waived the charged or greater offense.

Judicial Notice to the Rescue. At the post-verdict motion and again on appeal, the prosecution repeatedly requested that the courts take judicial notice that the indictment came down on April 24, 2012. The trial court refused.

“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.” HRE Rule 201. When a party requests judicial notice and supplies the necessary information, the court shall take judicial notice. HRE Rule 201(d). It is designed to “eliminate the necessity of taking the time of the court and the jury to make formal proof of fact which cannot be disputed.” State v. Moses, 102 Hawaii 449, 454, 77 P.3d 940, 945 (2003). “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). Finally, judicial notice can be made at any time in the proceeding, even on appeal. HRE Rule 201(f).

In this case, the indictment was a pleading in this case. It is a court record from a source whose accuracy cannot reasonably be questioned. The prosecution requested judicial notice at the hearing on the motion for judgment of acquittal. According to the HSC, because it can be taken at any time, it took judicial notice on appeal and based on that, the prosecution met its burden that the prosecution was timely commenced and within the statute of limitations. On that basis, it affirmed the circuit court’s denial of the motion for judgment of acquittal.


The Puzzling Instructions Issue. The HSC went further and agreed that there should have been instruction to the jury about the issue of timeliness. According to the HSC, the jury should have been instructed that the prosecution had to prove beyond a reasonable doubt: (1) the date of the offense, (2) the complainant’s birth date or the date of her eighteenth birthday, (3) that the complainant, and (4) the date the indictment was found. The failure to provide such an instruction was indeed error, but given the fact that the HSC took judicial notice on appeal about the issuance of the indictment and finding no disputable issue, the failure to provide such an instruction was harmless beyond a reasonable doubt. See State v. Nichols, 111 Hawaii 327, 337, 141 P.3d 974, 984 (2006).

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