Appeals Court overtuns Kona man’s conviction of sexual assault of a minor; prosecution intends to challenge decision

The Hawai’i County Prosecuting Attorney’s Office intends to challenge the state Intermediate Court of Appeals’ recent decision to vacate the conviction of a man who was sentenced to 20 years in prison for sexual assault of a young girl — due to confusing jury instructions.

The appeals court decision, filed on Sept. 10, comes almost two years after a jury found Joshua Masuda-Mercado of Kailua-Kona guilty of continuous sexual assault of a minor under the age of 14 and first-degree attempted sexual assault. The court has ordered a new trial.

Deputy Prosecuting Attorney Chase Murray plans to file a motion with the Hawai’i Supreme Court, asking the body to look at the appeals court decision and make their own determination.

“The trial court got it right and the ICA [Intermediate Court of Appeals] court got it wrong,” Murray said on Monday. “Ultimately, it’s the courts that make that decision. We’ll see if the Supreme Court disagrees with them.”

The case stemmed from a string of incidents that occurred in West Hawaiʻi between November 2014 and August 2018 and a separate incident on July 2, 2019. The sentences on the class A felonies were ordered to be served concurrently.

In January 2023, the Office of the Public Defender filed an appeal. The appeals court found the jury instructions were confusing, according to its filing on Sept. 10.

“To vacate a conviction, there must be a reasonable possibility that the error contributed to the defendant’s conviction, i.e., that the erroneous jury instruction was not harmless beyond a reasonable doubt,” the appeals document stated.

Murray said the appeals court issue was regarding the vaguely written description of the charges in the jury instructions.

The prosecuting attorney filed with the court a Bill of Particulars, which breaks down in detail what crimes were committed to avoid confusion.

However, the appeals court determined the jury instructions and Bill of Particulars should have had the same language.

“The appeals court didn’t think we narrowed the charge down enough [in the jury instructions], Murray said.

Masuda-Mercado, now 47, was originally charged by a grand jury indictment in August 2020. A $100,000 warrant was unserved for 10 months.

In June of 2021, Masuda-Mercado was located in Tennessee. The Hawai‘i County prosecutors’ investigators coordinated his extradition to Hawai‘i.

He remains in custody.