Abuse of Family or Household Members – Stipulation as

Abuse of Family or Household Members – Stipulation as to Prior Conviction Element and Limiting Instruction: H.R.S. § 709-906(7) One of the elements of the offense of Abuse of Family or Household Members requires the prosecution to prove beyond a reasonable doubt that, on (insert date of charged offense) the Defendant (defendant’s name) had two or more prior misdemeanor convictions, the last of which occurred within two years of that date. This element is referred to as the “prior conviction element” of the offense. The defense and the prosecution have stipulated to this element, which means that both sides agree that the Defendant had two or more prior misdemeanor convictions, the last of which occurred within two years of (insert date of charged offense). Based on this stipulation, you must accept as proven beyond a reasonable doubt the “prior conviction element.” You must not consider the stipulation for any other purpose. You must not speculate as to the nature of the prior convictions. Notes The court should consider giving this instruction immediately after the stipulation is read to the jury. During the court’s complete instructions to the jury at the close of the case, the court should consider giving either this instruction or 4.01 (“Several times during the trial I told you that certain evidence was allowed into this trial for a particular and limited purpose. When you consider that evidence, you must limit your consideration to that purpose.”). See State v. Murray, 116 Hawai`i 3, 169 P.3d 955 (2007) (“failure to allow the defendant to use the stipulation procedure would not be considered harmless error”). Under Murray, if the defense requests the stipulation procedure: (1) the defendant should be allowed to stipulate to the fact of the required prior convictions; (2) the stipulation may be accepted only after engaging the defendant in an on-the-record colloquy to ensure a knowing and voluntary waiver of his/her right to have the “prior conviction element” proved beyond a reasonable doubt and decided by a jury; (3) the jury should be instructed that the defendant has stipulated to this particular element of the charged offense to make it plain that this element is considered proven beyond a reasonable doubt; (4) the instruction must be carefully crafted to omit any reference to the “name or nature” of the previous convictions; (5) the instruction should ensure that the prior convictions are not considered by the jury for any purpose other than conclusively establishing the “prior convictions element;” and (6) the court must preclude any mention of the name or nature of the prior convictions at any point during the trial, i.e., jury selection, opening statements, presentation of evidence, closing arguments, or instructions.