The state Intermediate Court of Appeals has vacated the 2022 conviction and 20-year prison sentence of a Kailua-Kona man for the alleged sexual assault of a minor girl.
The panel of three appellate judges returned the case to Kona Circuit Court and ordered a new trial for Joshua Masuda-Mercado.
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.
Kona Circuit Judge Wendy DeWeese on Dec. 16, 2022, sentenced Masuda-Mercado to 20 years in prison on the two Class A felony charges.
The incidents allegedly occurred between November 2014 and August 2018, with a separate incident in July 2019.
The alleged victim, identified only by her initials, was born in November 2006, according to the indictment.
Deputy Public Defender Phyllis Hironaka on Jan. 6, 2023, filed the appeal on Masuda-Mercado’s behalf.
According to the appellate court, for the continuous sexual assault charge the jury received instructions that included “deviate sexual intercourse” as part of the definition of the charge, but were not given correct or sufficient information as to what legally constitutes deviate sexual intercourse — leaving them to define the term for themselves.
For the second charge, the jury instructions as to what constitutes “sexual contact” differs from what they received in the Bill of Particulars defining what allegedly happened.
Masuda-Mercado, who has no prior criminal record other than traffic infractions, didn’t testify during the trial.
He remains in custody at Saguaro Correctional Center in Arizona.
Email John Burnett at jburnett@hawaiitribune-herald.com.
