NO. 27719 – Thursday, February 19, 2009 – 9 a.m.

STATE OF HAWAI`I, Respondent/Plaintiff-Appellant, vs. MARSHALL HINTON, Petitioner/Defendant-Appellee. (Sexual Assault in the Third Degree).

Attorney(s) for Petitioner/Defendant-Appellee(s)
Honorable John M. Tonaki, Public Defender, and Karen T. Nakasone, Deputy Public Defender

Attorney(s) for Respondent/Plaintiff-Appellant(s)
Honorable Peter B. Carlisle, Prosecuting Attorney, and James M. Anderson, Deputy Prosecuting Attorney, City & County of Honolulu

COURT: RTYM, CJ; PAN, SRA & JED, JJ, and Circuit Judge Karen N. Blondin assigned by reason of vacancy.

NOTE: Order of assigning Judge Karen N. Blondin due to a vacancy, filed 01/09/09.

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Brief description:

Petitioner/defendant-appellee Marshall Hinton’s application for a writ of certiorari to review the Intermediate Court of Appeals’ (ICA) September 18, 2008 judgment on appeal, entered pursuant to its August 26, 2008 summary disposition order (SDO), was accepted on January 29, 2009. In its SDO, the ICA vacated the Circuit Court of the First Circuit’s December 21, 2005 findings of fact (FOFs), conclusions of law (COLs), and order granting Hinton’s motion to dismiss the indictment with prejudice.

Briefly stated, Hinton was indicted for allegedly touching the then-thirteen-year-old complainant [hereinafter, the complainant] on her genital area outside her clothing and subsequently tried by a jury for sexual assault in the third degree, in violation of Hawai`i Revised Statutes (HRS) § 707-732(1)(b) (Supp. 2007). However, the trial court declared a mistrial after the jury was unable to reach a unanimous verdict and, upon motion by Hinton, dismissed the indictment with prejudice, pursuant to State v. Moriwake, 65 Haw. 47, 647 P.2d 705 (1982). On appeal by respondent/plaintiff-appellant State of Hawai`i (the prosecution), a majority of the ICA concluded that the trial court abused its discretion in dismissing the indictment and, accordingly, vacated the trial court’s dismissal. Judge Foley dissented, concluding that the “[trial] court did not abuse its discretion in dismissing the indictment against Hinton.” On application, Hinton challenges the ICA majority’s holding.