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Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
30-JAN-2026
08:09 AM
Dkt. 81 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

STATE OF HAWAI#I, Plaintiff-Appellee,
v.
CHRISTOPHER M. KELIIHELEUA, Defendant-Appellant

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CASE NO. 1CPC-XX-XXXXXXX)

SUMMARY DISPOSITION ORDER
(By: Hiraoka, Presiding Judge, Wadsworth and Guidry, JJ.)

Christopher M. Keliiheleua appeals from the Findings of
Fact, Conclusions of Law, Order Granting in Part and Denying in
Part Defendant's Motion to Dismiss Counts I and IV for Lack of
Probable Cause entered by the Circuit Court of the First
Circuit.1 We affirm.
A grand jury returned a six-count indictment against
Keliiheleua. Keliiheleua moved to dismiss Counts I (Sexual
Assault in the First Degree) and IV (Sexual Assault in the Third
Degree). The Circuit Court entered findings of fact (FOF),
conclusions of law (COL), and an order dismissing Count IV, but

1
The Honorable James S. Kawashima presided.
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denying the motion as to Count I. Keliiheleua's timely motion
for leave to file this interlocutory appeal was granted.
We review an order denying a motion to dismiss an
indictment for lack of probable cause de novo under the
right/wrong standard. State v. Park, 149 Hawai#i 542, 546, 495
P.3d 392, 396 (App. 2021) (citing State v. Taylor, 126 Hawai#i
205, 215, 269 P.3d 740, 750 (2011)).

A grand jury indictment must be based on probable
cause. Probable cause is established by a state of facts as
would lead a person of ordinary caution or prudence to
believe and conscientiously entertain a strong suspicion of
the guilt of the accused. The evidence to support an
indictment need not be sufficient to support a conviction.
In reviewing the sufficiency of the evidence to establish
probable cause before the grand jury, every legitimate
inference that may be drawn from the evidence must be drawn
in favor of the indictment and neither the trial court nor
the appellate court on review may substitute its judgment as
to the weight of the evidence for that of the Grand Jury.

Id. (emphasis added) (cleaned up).
Hawaii Revised Statutes (HRS) § 707-730 (2014)
provides, in relevant part:

(1) A person commits the offense of sexual assault in the
first degree if:

. . . .

(d) The person knowingly subjects to sexual
penetration another person who is mentally
defective,[.2]

"Sexual penetration" means "any intrusion of any part
of a person's body or of any object into the genital or anal
opening of another person's body; it occurs upon any penetration,
however slight, but emission is not required." HRS § 707-700

2
"Mentally defective" means "a person suffering from a disease,
disorder, or defect which renders the person incapable of appraising the
nature of the person's conduct." HRS § 707-700 (2014). The complaining
witness's caregiver testified that the complaining witness was twenty-two
years old, had been diagnosed with "moderate intellectual disability," and
functioned at the age of a ten-year old.

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(2014). "[G]enital opening" includes "the anterior surface of
the vulva or labia majora[.]" Id.
(1) Keliiheleua challenges the following FOFs:

7. The Complainant [(CW)] testified that [Keliiheleua]:

a. Touched her vagina.
i. When asked, [CW] went on to explain that
her vagina was sore after this touching.
b. Put his mouth on her vagina.
c. Sucked on her nipple.

d. Touched her breast.
e. Touched her butt.

. . . .

11. [CW] in this case testified that [Keliiheleua] touched
her vagina and that after the touching her vagina was
sore.

(Citations to record omitted.)3
We review FOFs under the clearly erroneous standard.
Park, 149 Hawai#i at 546, 495 P.3d at 396. A finding of fact is
not clearly erroneous if the record contains substantial evidence
supporting it. Id. Substantial evidence is credible evidence of
sufficient quality and probative value to enable a person of
reasonable caution to support a conclusion. Id.
CW testified to the grand jury that Keliiheleua "sucked
on my nipple, touched my butt, and he kissed me on the lips."
The State asked CW, "Did he put his, um, mouth anywhere
else on your body besides your butt? I'm sorry, your breast?"

3
Keliiheleua also challenges FOF no. 10, that "Grand Jury Counsel
was available to the grand jury on the date of the proceeding." We do not
address it because he doesn't explain why he believes it is material to his
appeal.

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CW answered, "On my vagina."4
The State asked CW which part of her body Keliiheleua
touched.
CW answered, "My breast, my vagina, and my butt."
The State asked, "Was it sore down there?"
"It was."
"Sore at your vagina?"
"Yeah."
FOF nos. 7 and 11 accurately describe CW's grand jury
testimony. They are not clearly erroneous.
(2) Keliiheleua challenges the following COLs:

6. "[I]t is not necessary to establish guilt beyond a
reasonable doubt, by clear and convincing evidence or
even by a preponderance of the evidence. It is not
necessary to establish guilt at all. It is merely
necessary to establish a situation where a strong
suspicion of guilt would be believed and consciously
entertained by a man of ordinary caution or prudence."
State v. Freedle, 1 Haw. App. 396, 400, 620 P.2d 740,
743 (1980).

. . . .

8. Given that every legitimate inference that may be
drawn from the evidence must be drawn in favor of the
indictment, this court should not disturb the grand
jury's finding given the sufficiency of the evidence
presented by the Complainant in this case. See: State
v. Kuba, 68 Haw. 184, 190, 706 P.2d 1305 (1985)
(citing State v. Freedle, 1 Haw. App. at 399, 620 P.2d
at 743 (construing People v. Shirley, 78 Cal. App. 3d
424, 144 Cal. Rptr. 282 (1978)[))].

We review COLs de novo under the right/wrong standard.
Park, 149 Hawai#i at 546, 495 P.3d at 396.
COL no. 6 was right. In Freedle, the trial court
dismissed an indictment for manslaughter. 1 Haw. App. at 396,

4
"Sexual penetration" also includes "[c]unnilingus . . . , whether
or not actual penetration has occurred." HRS § 707-700. Count I of the
indictment was based solely on Keliiheleua allegedly "inserting his finger
into [CW's] genital opening," and did not allege cunnilingus as the conduct
element of the offense.

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620 P.2d at 741. The State appealed. This court reversed.
After the passage quoted in COL no. 6, we discussed the evidence
presented to the grand jury and concluded the grand jurors could
have

believed and conscientiously entertained a strong suspicion
that the [defendant], in drawing his firearm under these
circumstances, consciously disregarded a substantial and
unjustifiable risk that his conduct would cause the gun to
discharge and thus, cause the death of the decedent.
Whether that suspicion can be turned into proof is a matter
for trial.

Id. at 401, 620 P.2d at 743.
COL no. 8 was also right. In Kuba, the supreme court
stated, "sufficient legal and competent evidence before a grand
jury which establishes probable cause that a suspect has violated
the law will support an indictment[,]" and "[p]robable cause has
been established when it can be said that a reasonable and
prudent person viewing the evidence would have a strong suspicion
that a crime had been committed." 68 Haw. at 190, 706 P.2d at
1310 (citations omitted). The court continued:

Furthermore, "every legitimate inference that may be drawn
from the evidence must be drawn in favor of the indictment
and neither the trial court nor the appellate court on
review may substitute its judgment as to the weight of the
evidence for the Grand Jury." Freedle, 1 Haw. App. at 399,
620 P.2d at 743 (emphasis added) (construing People v.
Shirley, 78 Cal.App.3d 424, 144 Cal.Rptr. 282 (1978)).

Id. at 190, 706 P.2d at 1310–11.
(3) Keliiheleua challenges the following COLs, which
contain mixed findings and conclusions:

11. Based on the testimony by [CW], a fair inference can
be drawn that there is probable cause to believe that
sexual penetration as charged in Count I occurred.

12. Based on the testimony of [CW], a fair inference can
be drawn that there is probable cause to believe that
[Keliiheleua]'s finger was inserted in [CW]'s genital
opening as the definition of penetration, which was

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included in the indictment presented to the grand
jury, defines it as any intrusion however slight.

"[A] conclusion of law that presents mixed questions of
fact and law is reviewed under the 'clearly erroneous' standard
because the conclusion is dependent upon the facts and
circumstances of the case." Park, 149 Hawai#i at 546, 495 P.3d
at 396.
COL nos. 11 and 12 were supported by substantial
evidence. The cases cited by Keliiheleua are distinguishable
because they involved the State presenting no evidence of an
element of the charged offense, see Park, 149 Hawai#i at 551, 495
P.3d at 401 (no evidence to show defendant had some part in
directing affairs of alleged criminal enterprise); State v.
Russo, 141 Hawai#i 181, 195-96, 407 P.3d 137, 151-52 (2017) (no
evidence to show defendant willfully failed or refused to comply
with lawful order of law enforcement officer); State v. Atwood,
129 Hawai#i 414, 420, 301 P.3d 1255, 1261 (2013) (no evidence to
show defendant intended to not perform contract); State v. Ontai,
84 Hawai#i 56, 64, 929 P.2d 69, 77 (1996) (no evidence to show
continuity of alleged enterprise), or involved the probable cause
to arrest standard, which is not at issue here, see State v.
Maganis, 109 Hawai#i 84, 86, 123 P.3d 679, 681 (2005) (probable
cause to arrest "requires more than a mere suspicion but less
than a certainty").
Here, the evidence presented to the grand jury would
lead a person of ordinary caution or prudence to believe and
conscientiously entertain "a strong suspicion" that Keliiheleua
inserted his finger into CW's genital opening. See Kuba, 68 Haw.
at 190, 706 P.2d at 1310. COL nos. 11 and 12 were not clearly
erroneous.
The Circuit Court's November 21, 2024 Findings of Fact,
Conclusions of Law, Order Granting in Part and Denying in Part

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Defendant's Motion to Dismiss Counts I and IV for Lack of
Probable Cause is affirmed.
DATED: Honolulu, Hawai#i, January 30, 2026.

On the briefs:
/s/ Keith K. Hiraoka
Sara K. Haley, Presiding Judge
State of Hawai#i,
Deputy Public Defender, /s/ Clyde J. Wadsworth
for Defendant-Appellant. Associate Judge

Michelle M.L. Puu, /s/ Kimberly T. Guidry
Deputy Attorney General, Associate Judge
State of Hawai#i,
for Plaintiff-Appellee.