State v. Silver

Summary

The Supreme Court of Hawaiʻi held that insufficient evidence supported Barry Silver’s conviction for sexual assault in the third degree on Count 1, which arose from touching the minor’s buttocks during pool horseplay. The court reversed that conviction and remanded for entry of a judgment of acquittal, while affirming the convictions and sentence on the remaining counts. The opinion also addressed the statutory meaning of “intimate parts” and “sexual contact” under Hawaiʻi law.

Holdings

1. The buttocks may constitute an intimate part for purposes of HRS section 707-700 when, viewed in context, the touching is of a body part typically associated with sexual relations.
2. Substantial evidence supported Silver's convictions on Counts 3 through 5 because the late-night massages, repeated waking and rubbing, instruction to remain quiet, and slow touching of Minor's buttocks and penis supported an inference of knowing sexual contact with an eleven-year-old child.
3. The evidence was insufficient to support Silver's conviction on Count 1 because touching Minor's buttocks during pool horseplay, in the circumstances shown, did not constitute substantial evidence of sexual contact with an intimate part.
4. Because Count 1 was reversed for insufficiency of the evidence, the circuit court must enter a judgment of acquittal on that count; retrial is barred by the Double Jeopardy Clauses.

Questions Presented

1. Whether substantial evidence supported Silver's conviction on Count 1, which was based on touching Minor's buttocks during pool horseplay.
2. Whether the buttocks may constitute an intimate part under Hawaiʻi's third-degree sexual-assault statute and the statutory definition of sexual contact.
3. Whether the statutory scheme provided fair notice that the conduct underlying Counts 3 through 5 was prohibited.
4. Whether reversal of Count 1 for insufficiency of the evidence required entry of a judgment of acquittal under the Double Jeopardy Clauses.

Disposition

reversed_and_remanded