The Hawaii Supreme Court has reinstated the previously overturned conviction of a 48-year-old Kailua-Kona man for sexually assaulting a minor girl.
The high court’s decision invalidates an October 2024 conviction reversal by the Intermediate Court of Appeals in the case of Joshua Masuda-Mercado. It also affirms both the conviction of Masuda-Mercado and the 20-year prison sentence handed down to him by Third Circuit Chief Judge Wendy De Weese in December 2022.
A Kona jury in September 2022 found Masuda-Mercado guilty of continuous sexual assault of a minor under the age of 14 and attempted first-degree sexual assault of a minor, both Class A felonies.
The incidents occurred between November 2014 and August 2018, with a separate incident in July 2019.
In its decision overturning the original conviction, the Intermediate Court of Appeals ruled the jury received instructions that included “deviate sexual intercourse” as part of the definition of the continuous sexual charge, but wasn’t given correct or sufficient information as to what legally constitutes deviate sexual intercourse — leaving them to define the term for themselves.
In reference to the attempted first-degree sexual assault of a minor, ICA ruled the jury instructions as to what constitutes “sexual contact” differed from what they received in a bill of particulars defining what allegedly happened.
The high court was unanimous in overturning the ICA ruling and reinstating 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 that the omission of the specific acts outlined in the bill in the circuit court’s jury instructions was not erroneous,” Chief Justice Mark Recktenwald, who has since retired, wrote in the opinion. “We further conclude that there is no reasonable possibility that any error in the instructions contributed to Masuda-Mercado’s conviction.”
Masuda-Mercado, who had no prior criminal record other than traffic infractions, didn’t testify during the trial.
The victim, identified only by her initials, was born in November 2006, according to the indictment, and is now an adult.
County Prosecutor Kelden Waltjen said in 2022 the indictment and accompanying bench warrant setting bail at $100,000 went unserved for 10 months.
Waltjen said Masuda-Mercado was located in Tennessee in June 2021, and investigators coordinated his extradition back to Hawaii to face the charges.
Masuda-Mercado, who is registered as a sex offender, is currently incarcerated at Halawa Correctional Facility on Oahu.
Email John Burnett at jburnett@hawaiitribune-herald.com.
