## Facts

- A woman was camping with a friend when she met Samuel McFadden, who told her about “energy-healing” services he performed using Reiki.
- The woman agreed to cut McFadden’s hair in exchange for a Reiki session.
- The woman went to McFadden’s tent and, at his direction, lay face-down on an air mattress.
- McFadden began a massage and told the woman to remove her bikini top because it might constrict her chest from expanding.
- The woman testified that McFadden then touched her under her bikini bottoms in the area between her anus and vagina.
- The woman testified she was confused and not relaxed; McFadden told her to relax. She did not verbally tell him to stop or not to touch her there before the penetration occurred.
- The woman testified she then realized McFadden had put a finger inside her anus. She pushed up, said she did not like it and was done, and left the tent.
- McFadden testified that before beginning, he told the woman he would be “addressing all of her organs, including her sexual organs,” and asked whether she was okay with that.
- McFadden testified he described what he was going to do and asked the woman multiple times during the process to communicate with him; he claimed her responses and conduct indicated agreement.
- The State charged McFadden with sexual assault in the second degree under HRS § 707-731(1)(a).
- At trial, the court did not instruct the jury that consent may be expressed or implied, and it refused McFadden’s requested instructions aimed at implied consent. The court also declined to instruct on mistake of fact as to consent.
- The jury found McFadden guilty, and he appealed based on instructional error focused on consent and his asserted belief that the woman consented.

## Issues

1. Whether the trial court erred by failing to instruct that consent in a second-degree sexual assault prosecution may be shown by words or by conduct (implied consent), and by refusing McFadden’s requested implied-consent instruction.
2. Whether the trial court erred by refusing to instruct on mistake of fact as to consent where there was evidence McFadden believed the woman agreed to the sexual contact.
3. Whether any instructional error was harmless beyond a reasonable doubt when consent was the main disputed question at trial.

## Decision

- The Intermediate Court of Appeals of Hawaiʻi vacated the judgment of conviction and remanded for a new trial.
- The court held the consent-related instructions were misleading in the context of this case because they did not adequately inform jurors that consent can be implied from surrounding circumstances.
- The court also concluded the jury should have been instructed on mistake of fact as to consent because there was evidence supporting McFadden’s claimed belief that the woman consented.
- Because the jury was not properly guided on the law governing consent and mistake of fact, and because those points went to the key disputed question, the instructional errors were not harmless beyond a reasonable doubt.

## Legal Principles

- In a prosecution under HRS § 707-731(1)(a), the State must prove the charged “sexual contact” occurred without the complainant’s consent.
- Consent is not limited to express verbal permission; it may be inferred from words and conduct under the surrounding circumstances.
- A defendant is entitled to a jury instruction on a defense theory, including an instruction grounded in mistake of fact (HRS § 702-218), when there is some evidence to support the theory.
- When consent is contested and the evidence includes conduct that could be viewed as agreement or lack of agreement, jury instructions must accurately state how consent may be shown and must not mislead jurors about the State’s burden.
- Instructional error requires reversal when there is a reasonable possibility the error contributed to the verdict; the State bears the burden to show the error was harmless beyond a reasonable doubt.

## Conclusion

Because the case turned on whether the woman consented to the sexual contact and whether McFadden reasonably believed she consented, the jury needed clear guidance that consent may be implied from conduct and that mistake of fact as to consent could negate the required state of mind; the failure to give those instructions required vacatur and a new trial.


State v. McFadden, 2015 Haw. App. LEXIS 457 (2015)