State v. Wagner. ( 2017 )


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  •     *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
    Electronically Filed
    Supreme Court
    SCWC-13-0000056
    04-MAY-2017
    03:17 PM
    IN THE SUPREME COURT OF THE STATE OF HAWAI#I
    ---o0o---
    STATE OF HAWAI#I,
    Respondent/Plaintiff-Appellee,
    vs.
    JOHN A. WAGNER, JR.,
    Petitioner/Defendant-Appellant.
    SCWC-13-0000056
    CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
    (CAAP-13-0000056; CR. NO. 11-1-001K)
    MAY 4, 2017
    RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.
    AMENDED OPINION OF THE COURT BY RECKTENWALD, C.J.1
    John A. Wagner, Jr., seeks review of his conviction and
    sentence for one count of methamphetamine trafficking in the
    1
    The Amended Opinion reflects the correct footnote numbering (there
    were two footnotes numbered 15) in the Opinion filed on May 4, 2017, at 8:43
    am.
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    first degree, and two counts of prohibited acts related to drug
    paraphernalia.      The Circuit Court of the Third Circuit2 (circuit
    court) sentenced Wagner to twenty years’ imprisonment on the
    methamphetamine trafficking charge, and imposed a mandatory
    minimum term of thirteen years and four months because Wagner had
    a prior conviction for methamphetamine trafficking.             The
    Intermediate Court of Appeals (ICA) affirmed the circuit court’s
    Judgment of Conviction and Sentence, and Wagner sought review in
    this court.
    We conclude that the circuit court incorrectly
    construed Wagner’s prior conviction as an element of the offense.
    As a result, information about Wagner’s prior conviction was
    submitted to the jury in a stipulation, thus unnecessarily
    subjecting Wagner to potential prejudice due to the jurors
    learning of his prior felony conviction.           Accordingly, we vacate
    the ICA’s January 26, 2016 judgment on appeal, and remand to the
    circuit court for a new trial.
    I.   Background
    A.    Circuit Court Proceedings
    This case arises from a police search of Wagner’s
    residence on December 23, 2010, executed pursuant to a search
    warrant.    During the search, the police found 45.3 grams of a
    2
    The Honorable Elizabeth A. Strance presided.
    2
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    “crystalline substance” and drug paraphernalia.           That same day,
    Wagner was arrested for methamphetamine trafficking and
    possession of drug paraphernalia.
    On December 27, 2010, Wagner was initially charged with
    four counts relating to the events of December 23, 2010.             The
    State filed an Amended Complaint on December 28, 2011, and a
    Second Amended Complaint on September 4, 2012, alleging three
    counts.3   In Count I, Wagner was charged with methamphetamine
    trafficking in the first degree in violation of Hawai#i Revised
    Statutes (HRS) § 712-1240.7(1)(a) (Supp. 2006), alleging that
    Wagner knowingly possessed one ounce or more of methamphetamine
    “with one prior conviction for Methamphetamine Trafficking.”
    Counts II and III both alleged that Wagner “used, or possessed
    with intent to use, drug paraphernalia, zip packet(s) and/or
    scale(s) and/or straw(s), to plant, propagate, cultivate, grow,
    harvest, manufacture, compound, convert, produce, process,
    prepare, test, analyze, pack, repack, store, contain, conceal,
    inject, ingest, inhale, or otherwise introduce into the human
    body a controlled substance” in violation of HRS § 329-43.5
    (Prohibited Acts Related to Drug Paraphernalia).
    1.    Trial
    3
    Count III in the original complaint, which alleged attempted
    methamphetamine trafficking in the first degree, was not included in the
    Second Amended Complaint.
    3
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    At jury trial, Wagner stipulated that he had a prior
    conviction for methamphetamine trafficking.          However, the parties
    further agreed that the jury would not be advised that Wagner’s
    prior conviction was for a methamphetamine trafficking offense,
    but rather only that it was a felony.
    The State’s evidence at trial established that when the
    police arrived at Wagner’s residence to execute its search
    warrant, Wagner and his fiancee, Deshalynn Pea, were on the lanai
    at the front of the house, and Wagner’s mother and other family
    members were inside the residence.        The State’s evidence also
    established that the police found in Wagner’s room prescription
    pill bottles with Wagner’s name on them, and Wagner’s wallet,
    which held his University of Hawai#i student identification card,
    his Visa card, and his social security card.          The police also
    found Pea’s wallet on the bed.
    Further, the State’s evidence established that the
    “sixteen packets of a white crystalline substance” recovered from
    Wagner’s room tested positive as approximately 45.38 grams, or
    about 1.6 ounces, of methamphetamine.        The State also established
    that a methamphetamine smoking pipe, several zip packets, and a
    digital scale and straw, used to weigh and package drugs, were
    recovered from Wagner’s room.       Additionally, the State
    established that the residual contents found within the drug
    4
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    paraphernalia were methamphetamine.        The State also established
    that in Wagner’s room, $10,000 in a “drug roll” was recovered
    from one of Wagner’s shirt pockets, $967 was found on Wagner’s
    bed, a notebook with drug slang terms written inside was
    recovered, and multiple cell phones with phone numbers affixed to
    the exterior, commonly used to facilitate drug dealings, were
    recovered.
    Just prior to the State resting its case, the court
    read the stipulated language relating to Wagner’s prior
    conviction to the jury:
    A conviction for Count 1 in this matter requires
    the prosecution to prove beyond a reasonable doubt the
    element that defendant [Wagner] has had one prior
    conviction for a felony prior to December 23rd, 2010.
    For purposes of Count 1 in this matter, the parties
    have stipulated that prior to December 23rd, 2010,
    [Wagner] was convicted of one felony offense.
    The court then further instructed the jury:
    You must not consider the prior conviction for
    any purpose other than conclusive proof beyond a
    reasonable doubt that [Wagner] was convicted of one
    felony offense. You must not speculate as to the
    nature of the prior conviction. You must not use any
    evidence of a prior conviction to conclude that
    because [Wagner] has had a prior felony conviction,
    that he is a person of bad character and therefore
    must have committed the offenses in this case.
    In considering the evidence for the limited
    purpose for which it has been received, you must weigh
    it in the same manner as you would all other evidence
    in this case and consider it along with all other
    evidence in this case.
    Wagner testified in his own defense.          Wagner admitted
    that he had previously used methamphetamine and was familiar with
    5
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    its effects, referring to himself as an “ex-addict.”            Wagner
    confirmed that methamphetamine was found in his room, but denied
    that it was his and stated that he had never seen it in his room
    before.   Wagner further contended that the pipe found in his room
    did not belong to him.
    The following limiting instruction was given to the
    jury at the end of trial without objection:
    You have heard evidence that the defendant at
    another time may have engaged in or committed other
    crimes, wrongs, or acts. This evidence may be
    considered only on the issue of the defendant’s
    knowledge of methamphetamine, its packaging and
    paraphernalia, identity of the person who committed
    prior felony offense charged, and whether the alleged
    conduct resulted from a mistake or accident.
    Do not consider this evidence for any other
    purpose. You must not use this evidence to conclude
    that because the defendant at another time may have
    engaged in or committed other crimes, wrongs, or acts,
    that he is a person of bad character, and therefore
    must have committed the offenses charged in this case.
    On September 13, 2012, the jury found Wagner guilty of
    all three charges.    On September 18, 2012, the State filed a
    motion to impose a mandatory minimum term of imprisonment,
    pursuant to HRS § 712-1240.7(3)(a).        The State argued that
    Wagner’s previous conviction for methamphetamine trafficking
    “mandates the imposition of a mandatory minimum term of
    imprisonment of between six years, eight months and thirteen
    years, four months[.]”
    2.   Sentencing
    On November 16, 2012, the court held a sentencing
    6
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    hearing.    Before any substantive matters were addressed, Wagner
    orally moved to dismiss his counsel.         The court then gave Wagner
    a copy of the State’s motion to impose a mandatory minimum
    sentence and the presentence report, and recessed to give Wagner
    time to review the motion and “have a full understanding” of the
    proceeding.
    After the recess,4 the court confirmed that Wagner was
    ready to proceed, and engaged in a colloquy with Wagner to
    determine if Wagner understood that he:          (1) was at a
    disadvantage because he was not trained to represent himself; (2)
    would be subject to a prison sentence of up to thirty years with
    a mandatory minimum of up to thirteen years; (3) had the
    constitutional right to be represented by an attorney; and (4)
    had a right to court-appointed counsel.          Wagner responded that he
    had no questions in general or about the possible sentence he
    faced.
    Wagner stated that his decision to waive his right to
    an attorney was voluntary, and the court found that he
    “voluntarily, intelligently, and knowingly” waived his right to
    be represented by an attorney.        The court then discharged
    Wagner’s counsel.     When asked if Wagner had any response to the
    4
    Upon review of the record, the length of the recess is unclear.
    However, before the court recessed, it indicated that it would “pass” the
    instant case “until 10 o’clock.”
    7
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    State’s motion to impose a mandatory minimum sentence, Wagner
    stated “[n]o response.”5
    The court granted the State’s motion to impose a
    mandatory minimum sentence.        The court then sentenced Wagner to
    twenty years’ imprisonment for methamphetamine trafficking in the
    first degree, with a mandatory minimum term of thirteen years and
    four months; and five years for each count of prohibited acts
    related to drug paraphernalia, with the sentences running
    concurrently.
    On November 19, 2012, the court filed its Judgment of
    Conviction and Sentence.        On December 12, 2012, Wagner was
    appointed counsel for purposes of appeal.           On January 29, 2013,
    Wagner filed his notice of appeal.
    B.    ICA Appeal
    After Wagner’s appointed counsel filed an opening brief
    at the ICA, his counsel filed a motion to withdraw as Wagner’s
    counsel.    The ICA remanded the case to the circuit court, and the
    circuit court granted the motion to withdraw, but required
    Wagner’s counsel “to remain as standby counsel” to advise Wagner
    regarding the “practice and procedure of the appellate courts.”
    5
    We have significant concerns regarding the circuit court allowing
    Wagner to waive his right to counsel immediately before proceeding to
    sentencing. However, we need not address this issue since we are granting a
    new trial on other grounds.
    8
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    Wagner then filed a handwritten pro se opening brief
    with the ICA, arguing that the circuit court abused its
    discretion in allowing the introduction of his prior conviction
    in front of the jury at trial.       Wagner argued that he was
    prejudiced by the introduction of his conviction, and contended
    that his stipulation should have “effectively remove[d] that
    element of the crime from the charge.”         Wagner argued that he
    faced unfair prejudice “[e]ven with the limited [sic]
    instructions . . . [.]”
    Wagner further argued that the circuit court erred by
    not giving curative instructions prior to the introduction of
    Wagner’s prior bad acts.      Wagner contended that the State and his
    counsel’s “repetitious statements” regarding his criminal history
    “no doubt left an indelible mark upon the jury’s memory [that] no
    instructions could cure.”
    The State argued that the circuit court did not abuse
    its discretion by allowing the introduction of Wagner’s prior
    conviction because Wagner stipulated to the conviction.            The
    State asserted that the stipulation “was merely a stipulation
    that [Wagner] had a prior conviction so the State need not call
    additional witnesses merely to prove [Wagner] had a prior
    conviction.   It was not a stipulation that the prior conviction
    would never be mentioned at trial.”
    9
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    The ICA held that the circuit court did not abuse its
    discretion when it “allowed reading to the jury the parties’
    stipulation regarding Wagner’s prior felony conviction” because
    the circuit court properly “followed the procedure mandated . . .
    where a defendant [stipulates] to a prior conviction for the same
    offense where such was an element of the current offense.”
    Chief Judge Nakamura concurred with the result but
    wrote separately, arguing that under HRS § 712-1240.7, a
    defendant’s prior methamphetamine trafficking convictions should
    be construed as a “sentencing enhancement factor for the judge to
    decide,” rather than an “element of the offense for the jury [to
    decide].”    In his concurrence, Chief Judge Nakamura advanced
    three arguments in support of his position to construe the prior
    convictions as a sentencing factor.
    First, Chief Judge Nakamura argued that the plain
    language of HRS § 712-1240.7 supported his position, since a
    defendant’s prior convictions are only referenced in the
    sentencing provision of the statute.        Second, Chief Judge
    Nakamura argued that construing a defendant’s prior conviction
    under HRS § 712-1240.7 as a sentencing factor would not
    contravene a defendant’s right to a jury trial because it would
    fall squarely within the exception recognized in Apprendi v. New
    Jersey, 
    530 U.S. 466
     (2000), that the fact of a prior conviction
    10
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    need not be submitted to the jury.6         Third, Chief Judge Nakamura
    argued that construing a defendant’s prior conviction as a
    sentencing factor would avoid the risk of unfair prejudice to the
    defendant due to the jury’s knowledge of his or her previously
    convicted crime.
    However, Chief Judge Nakamura concluded that based on
    controlling case law, including State v. Domingues,7 State v.
    Kekuewa,8 State v. Ruggiero,9 and State v. Murray,10 the circuit
    court did not err in:      (1) treating Wagner’s prior conviction as
    an element of the offense; and (2) permitting the jury to be
    informed by stipulation that Wagner had a prior felony
    conviction.
    Therefore, the ICA affirmed Wagner's conviction and
    sentence.    On January 26, 2016, the ICA entered its judgment on
    appeal.
    6
    This argument was written before our holding in State v. Auld, 136
    Hawai#i 244, 
    361 P.3d 471
     (2015), where we found that “Apprendi’s ‘fact of
    prior conviction’ exception does not apply to repeat offender sentencing under
    HRS § 706–606.5, and that a jury is required to find that the defendant’s
    prior conviction(s) have been proved beyond a reasonable doubt to trigger the
    imposition of a mandatory minimum sentence under that statute.” Id. at 257,
    361 P.3d at 484. Additionally, our holding in Auld was given prospective
    effect only. Id.
    7
    106 Hawai#i 480, 
    107 P.3d 409
     (2005).
    8
    114 Hawai#i 411, 
    163 P.3d 1148
     (2007).
    9
    114 Hawai#i 227, 
    160 P.3d 703
     (2007).
    10
    116 Hawai#i 3, 
    169 P.3d 955
     (2007).
    11
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    II.   Standards of Review
    A.    Admissibility Of Prior Bad Act Evidence
    Wagner argues that he was unfairly prejudiced by the
    introduction of his prior conviction, and suggests it should not
    have been submitted to the jury even with a limiting instruction.
    “Prior bad act” evidence under [Hawai#i Rules of
    Evidence ([HRE])] Rule 404(b) is admissible when it is
    1) relevant and 2) more probative than prejudicial. A
    trial court’s determination that evidence is
    “relevant” within the meaning of HRE Rule 401 is
    reviewed under the right/wrong standard of review.
    However, a trial court’s balancing of the probative
    value of prior bad act evidence against the
    prejudicial effect of such evidence under HRE Rule 403
    is reviewed for abuse of discretion. An abuse of
    discretion occurs when the court clearly exceeds the
    bounds of reason or disregards rules or principles of
    law to the substantial detriment of a party litigant.
    State v. Behrendt, 124 Hawai#i 90, 102, 
    237 P.3d 1156
    , 1168
    (2010) (citation and ellipses omitted).
    B.    Sufficiency Of The Evidence
    The appellate court reviews the sufficiency of the
    evidence on appeal as follows:
    [E]vidence adduced in the trial court must be
    considered in the strongest light for the prosecution
    when the appellate court passes on the legal
    sufficiency of such evidence to support a conviction;
    the same standard applies whether the case was before
    a judge or jury. The test on appeal is not whether
    guilt is established beyond a reasonable doubt, but
    whether there was substantial evidence to support the
    conclusion of the trier of fact.
    State v. Richie, 88 Hawai#i 19, 33, 
    960 P.2d 1227
    , 1241 (1998)
    (quoting State v. Quitog, 85 Hawai#i 128, 145, 
    938 P.2d 559
    , 576
    (1997)).
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    “‘Substantial evidence’ as to every material element of
    the offense charged is credible evidence which is of sufficient
    quality and probative value to enable a person of reasonable
    caution to support a conclusion.”           
    Id.
     (internal quotation marks
    and citation omitted).
    III.   Discussion
    Although Wagner raises many issues in his application
    for writ of certiorari, we find the following issue dispositive:
    “[Whether] [t]he [circuit] court abused its discretion in
    allowing the introduction of Mr. Wagner’s prior conviction . . .
    at trial[.]”
    We conclude that circuit court erred in construing
    Wagner’s prior methamphetamine conviction as an element of the
    offense, rather than a sentencing enhancement factor.
    Accordingly, information about the conviction should not have
    been presented to the jury.
    First, the plain language of HRS § 712-1240.7 (Supp.
    2006), demonstrates that a defendant’s prior conviction should
    not be construed as an element of the offense.             HRS § 702-205
    (1993) provides that:        “The elements of an offense are such (1)
    conduct, (2) attendant circumstances, and (3) results of conduct,
    as:    (a) Are specified by the definition of the offense, and (b)
    Negative a defense (other than a defense based on the statute of
    13
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    limitations, lack of venue, or lack of jurisdiction).”               See also
    State v. Murray, 116 Hawai#i 3, 7-8, 
    169 P.3d 955
    , 959-60 (2007).
    The legislature has the ability to make a defendant’s
    prior conviction an attendant circumstance, and accordingly, an
    element of the offense.       See, e.g., HRS § 291-4.4 (Supp. 2000)
    (repealed 2000).11      One way for the legislature to indicate that
    11
    Prior to HRS § 291E-61 (Supp. 2001) being enacted, the former
    OVUII statute, HRS § 291-4.4 (Supp. 2000) (repealed 2000), provided in
    relevant part:
    (a) A person commits the offense of habitually
    driving under the influence of intoxicating liquor or
    drugs if, during a ten-year period the person has been
    convicted three or more times for a driving under the
    influence offense; and
    (1)   The person operates or assumes actual
    physical control of the operation of any
    vehicle while under the influence of
    intoxicating liquor, . . . [or]
    (2)   The person operates or assumes actual
    physical control of the operation of any
    vehicle with .08 or more grams of alcohol
    per one hundred milliliters or cubic
    centimeters of blood or .08 or more grams
    of alcohol per two hundred ten liters of
    breath[.]
    This court stated in State v. Kekuewa that:
    According to the legislative history of HRS § 291–4.4,
    the requisite prior DUI convictions were considered an
    element of the offense. See House Stand. Comm. Rep.
    No. 844, in 1995 House Journal, at 1345 (“This bill
    already includes as an element of habitually driving
    under the influence, three convictions for DUI.”
    (Emphasis added.)). The purpose of HRS § 291–4.4 was
    to “establish a felony offense for those who are
    convicted of habitually driving under the influence of
    intoxicating liquors or drugs.” Id.
    114 Hawai#i 411, 432, 
    163 P.3d 1148
    , 1169 (2007) (citing State v. Shimabukuro,
    100 Hawai#i 324, 328 n.12, 
    60 P.3d 274
    , 278 n.12 (emphasis in original)).
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    intent is to include the requirement of a prior conviction in the
    same portions of the statute that define the required conduct and
    results of conduct to commit the offense.
    Here, nothing in the plain language of HRS § 712-1240.7
    suggests that a prior conviction is an element of the offense.
    HRS § 712-1240.7 (Supp. 2006) provides:
    Methamphetamine trafficking in the first degree.
    (1) A person commits the offense of
    methamphetamine trafficking in the first degree if the
    person knowingly:
    (a)   Possesses one or more preparations,
    compounds, mixtures, or substances of an
    aggregate weight of one ounce or more
    containing methamphetamine or any of its
    salts, isomers, and salts of isomers;
    (b)   Distributes one or more preparations,
    compounds, mixtures, or substances of an
    aggregate weight of one-eighth ounce or
    more containing methamphetamine or any of
    its salts, isomers, and salts of isomers;
    (c)   Distributes methamphetamine in any amount
    to a minor; or
    (d)   Manufactures methamphetamine in any
    amount.
    (2) Methamphetamine trafficking in the first
    degree is a class A felony for which the defendant
    shall be sentenced as provided in subsection (3).
    (3) Notwithstanding sections 706-620(2),
    706-640, 706-641, 706-659, 706-669, and any other law
    to the contrary, a person convicted of methamphetamine
    trafficking in the first degree shall be sentenced to
    an indeterminate term of imprisonment of twenty years
    with a mandatory minimum term of imprisonment of not
    less than two years and not greater than eight years
    and a fine not to exceed $20,000,000; provided that:
    (a)   If the person has one prior conviction for
    methamphetamine trafficking pursuant to
    this section or section 712-1240.8, the
    mandatory minimum term of imprisonment
    shall be not less than six years, eight
    months and not greater than thirteen
    years, four months;
    (b)   If the person has two prior convictions
    for methamphetamine trafficking pursuant
    to this section or section 712-1240.8, the
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    mandatory minimum term of imprisonment
    shall be not less than thirteen years,
    four months and not greater than twenty
    years; or
    (c)   If the person has three or more prior
    convictions for methamphetamine
    trafficking pursuant to this section or
    section 712-1240.8, the mandatory minimum
    term of imprisonment shall be twenty
    years.
    As set forth in the plain language of HRS § 712-1240.7,
    the provisions establishing the prohibited conduct for
    methamphetamine trafficking in the first degree are set forth in
    subsections (1)(a)-(d) of the statute.          A defendant’s prior
    conviction is not mentioned in any of those subsections, nor do
    those subsections integrate the parts of the statute which refer
    to a defendant’s prior conviction.         Instead, prior convictions
    are only mentioned in a separate subsection of the statute, HRS
    § 712-1240.7(3), which provides for the defendant’s sentencing.
    See HRS § 712-1240.7(2).
    Further, nothing in HRS § 712-1240.7’s legislative
    history indicates that the drafters intended for a defendant’s
    prior conviction to be construed as an element of the offense.
    See H. Stand. Comm. Rep. No. 665-06, in 2006 House Journal, at
    1359 (stating only that the bill “[a]dd[ed] methamphetamine
    trafficking in the first and second degree”).12          Therefore, based
    12
    In contrast to HRS § 712-1240.7’s legislative history, in State v.
    Murray, this court reasoned that the legislative history of HRS § 709-906(7)
    supported its holding that a defendant’s prior abuse conviction should be
    (continued...)
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    on the plain language of HRS § 712-1240.7 and its legislative
    history, it appears that the legislature intended that a
    defendant’s prior conviction be construed as a sentencing
    enhancement factor and not an element of the offense.
    There are three prior decisions of this court involving
    the offense of operating a vehicle under the influence of an
    intoxicant (OVUII) that are relevant to this analysis, but
    distinguishable from the instant case.               State v. Domingues, 106
    Hawai#i 480, 
    107 P.3d 409
     (2005); State v. Kekuewa, 114 Hawai#i
    411, 
    163 P.3d 1148
     (2007); State v. Ruggiero, 114 Hawai#i 227,
    (...continued)
    construed as an element of the felony offense because the drafters’ intent was
    to impose a greater degree of offense on repeat offenders. Id. at 8, 
    169 P.3d at 960
    . In Murray, this court outlined HRS § 709-906’s legislative history:
    [I]n 1998, HRS § 709–906 was amended to include
    subsection (7) as follows: “(7) For any subsequent
    offense occurring within two years after a second
    misdemeanor conviction, the person shall be charged
    with a class C felony.” 1998 Haw. Sess. L. Act 172,
    § 8 at 647. At that point the legislature stated that
    “an enhanced grade of offense for repeat criminal
    behavior sends a message to the repeat offender that
    such behavior will not be tolerated and will be
    treated as a serious offense.” Sen. Stand. Comm. Rep.
    No. 3252, in 1998 Senate Journal, at 1315 (emphases
    added).
    In 2002, HRS § 709–906(7) itself was amended to read,
    “(7) For a third or any subsequent offense that occurs
    within two years of a second or subsequent conviction,
    the person shall be charged with a class C felony.”
    2002 Haw. Sess. L. Act 5, § 1 at 54 (emphasis added).
    The legislature stated that the 2002 amendment
    “limit[ed] misdemeanors to the first and second
    offense, while making it a class C felony for any
    third and subsequent offense.” Stand. Comm. Rep. No.
    2949, in 2002 Senate Journal, at 1418.
    Id. at 8-9, 
    169 P.3d at 960-61
     (emphasis in original).
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    160 P.3d 703
     (2007).        In each of these cases, this court found
    that a defendant’s prior convictions were an element of the
    offense.    Domingues, 106 Hawai#i at 487-88, 
    107 P.3d at 416-17
    ;
    Kekuewa, 114 Hawai#i at 419, 
    163 P.3d at 1156
    ; Ruggiero, 114
    Hawai#i at 238, 
    160 P.3d at 714
     (citation omitted).
    In Domingues, the defendant was charged with, inter
    alia, habitually driving under the influence of intoxicating
    liquor or drugs.        106 Hawai#i at 482-83, 
    107 P.3d at 411-12
    .
    This court considered whether a defendant’s prior convictions
    were an element of the offense under a newly enacted statute, HRS
    § 291E-61 (Supp. 2000).13        Id. at 487-88, 
    107 P.3d at 416-17
    .
    13
    HRS § 291E-61 (Supp. 2000) in relevant part provides:
    (a) A person commits the offense of operating a
    vehicle under the influence of an intoxicant if the
    person operates or assumes actual physical control of
    a vehicle:
    (1)     While under the influence of alcohol in an
    amount sufficient to impair the person’s
    normal mental faculties or ability to care
    for the person and guard against casualty;
    (2)     While under the influence of any drug that
    impairs the person’s ability to operate
    the vehicle in a careful and prudent
    manner; [or)
    (3)     With .08 or more grams of alcohol per one
    hundred ten liters of breath . . . .
    HRS § 291E-61(b) discusses the sentences that shall be imposed for a
    defendant who committed the instant OVUII offense, and provides for increased
    punishment if a defendant has prior OVUII convictions:
    (b) A person committing the offense of operating
    a vehicle under the influence of an intoxicant shall
    be sentenced as follows without possibility of
    (continued...)
    18
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    Despite the differences between HRS § 291-4.4 (the repealed
    statute) and HRS § 291E-61, this court held that a defendant’s
    prior convictions under HRS § 291E-61(b) were an element of the
    13
    (...continued)
    probation or suspension of sentence:
    (1)   For the first offense, or any offense not
    preceded within a five-year period by a
    conviction for an offense under this
    section or section 291E-4(a):
    . . . .
    [Punishment including attendance at a substance abuse
    rehabilitation program; license suspension; and 72
    hours of community service, between two and five days
    of imprisonment, or a fine between $150 and $1,000]
    (2)   For an offense that occurs within five
    years of a prior conviction for an offense
    under this section or section 291E-4(a):
    . . . .
    [Increased punishment over a first offense, including
    possible imprisonment of between five and fourteen
    days]
    (3)   For an offense that occurs within five
    years of two prior convictions for
    offenses under this section or section
    291E-4(a):
    . . . .
    [Increased punishment over one prior conviction,
    including mandatory imprisonment of between ten
    and thirty days]
    (4)   For an offense that occurs within ten
    years of three or more prior convictions
    for offenses under this section, section
    707-702.5, or section 291E-4(a):
    . . . .
    [Increased punishment over two prior
    convictions]
    An offense under this paragraph is a class C felony.
    19
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    offense.    Id.   This court reasoned that HRS § 291E-61 established
    a “hierarchy” of separate offenses, including three petty
    misdemeanors and one class C felony.         Id.   This court also
    reasoned that HRS § 291E-61(b)(1)-(4) included prefatory language
    requiring qualifying prior convictions, and such language
    “describe[d] attendant circumstances that are intrinsic to and
    ‘enmeshed’ in the hierarchy of offenses that HRS § 291E-61 as a
    whole describes.”     Id. at 487, 
    107 P.3d at 416
     (citation
    omitted).    This court further reasoned that:
    Indeed, “[a]n offense under [HRS § 291E–61(b)(4)] is a
    class C felony . . . entitling a defendant to a jury
    trial, whereas the offenses described in HRS §§
    291E–61(b)(1) through 291E–61(b)(3) would appear to be
    petty misdemeanors, as to which no right to a jury
    trial would attach. . . . If the prefatory language of
    HRS §§ 291E–61(b)(1) through 291E–61(b)(4) were mere
    “sentencing factors” that the prosecution was not
    obliged to allege and prove to the trier of fact . . .
    then defendants charged with HRS § 291E–61 offenses
    would have no idea what the particular offense was
    that they were charged with committing or whether they
    were entitled to a jury trial.
    Id. at 487 n.8, 
    107 P.3d at
    416 n.8.
    Two years after Domingues, this court addressed the
    validity of Domingues’ analysis of HRS § 291E-61 in State v.
    Kekuewa.    In Kekuewa, this court rejected the State’s request to
    overrule Domingues “to the extent that it characterizes the
    provisions set forth in HRS § 291E-61(b)(1)-(4) (Supp. 2002)14 as
    14
    The legislature’s amendments in 2002 did not affect HRS § 291E-
    61’s substantive language, but added an additional fine for offenders to pay
    to the neurotrauma special fund. See 2002 Haw. Sess. Laws Act 160, § 11 at
    (continued...)
    20
    *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
    attendant circumstances.”       114 Hawai#i at 419, 
    163 P.3d at 1156
    .
    However, this court acknowledged that a “fair reading of HRS
    § 291E-61(b) (Supp. 2002) provides the initial impression that
    its contents describe sentencing factors, rather than attendant
    circumstances, given the fact that HRS § 291E-61(b) (Supp. 2002)
    is prefaced with language stating that ‘a person committing the
    offense of [OVUII] shall be sentenced as follows[.]’”             114
    Hawai#i at 420, 
    163 P.3d at 1157
     (emphasis in original).
    Nonetheless, this court recognized that construing HRS
    § 291E-61(b)(1)-(4) as “extrinsic sentencing factors[,]” rather
    than attendant circumstances elements, “would have raised serious
    concerns regarding the statute’s constitutionality, given a
    defendant’s inability to ascertain the class and grade of the
    offense charged (i.e., a petty misdemeanor or a class C felony)
    and whether the right to a jury has or has not attached.”               Id. at
    420, 
    163 P.3d at 1157
    .       Thus, this court concluded that given the
    “constitutional doubt” that a defendant would not have
    “sufficient notice of (1) whether he or she was charged with a
    petty misdemeanor or class C felony, and (2) whether he or she
    was entitled to a jury,” Domingues’ holding should not be
    overruled.       Id. at 421, 
    163 P.3d at 1158
    .
    14
    (...continued)
    566-67.
    21
    *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
    In contrast, here, the due process notice concerns that
    this court identified in Kekuewa and Domingues are not present.
    HRS § 712-1240.7 establishes felony offenses only, rather than a
    hierarchy of misdemeanors and felonies, and thus Wagner was
    entitled to a jury trial in any event.            Moreover, Wagner was on
    notice of the potential enhanced sentences, as the State asserted
    its intent to utilize Wagner’s prior conviction in its Amended
    Complaint.
    In State v. Ruggiero, this court considered whether
    Domingues’ analysis of HRS § 291E-61 remained valid after the
    legislature amended HRS § 291E-61 in 2003.            In 2003, the drafters
    removed the class C felony from HRS § 291E-61 for a fourth OVUII
    offense within ten years, previously set forth in HRS
    § 291E-61(b)(4).        The legislature then created a separate offense
    of “Habitual[] OVUII” codified at HRS § 291E-61.5 (Supp. 2003).15
    15
    HRS § 291E-61.5 (Supp. 2003) (Habitually operating a vehicle under
    the influence of an intoxicant) provides in relevant part:
    (a) A person commits the offense of habitually
    operating a vehicle under the influence of an
    intoxicant if:
    (1)     The person is a habitual operator of
    a vehicle while under the influence
    of an intoxicant; and
    (2)     The person operates or assumes
    actual physical control of a
    vehicle:
    (A)   While under the influence of alcohol
    in an amount sufficient to impair
    (continued...)
    22
    *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
    See 2003 Haw. Sess. Laws Act 71, §§ 1 and 3 at 123-26.
    In Ruggiero, this court affirmed the Domingues’
    analysis and held that Domingues:
    [R]etains its vitality inasmuch as considerations of
    due process continue to require that the aggravating
    factors set forth in HRS § 291E–61(b)—-all of which
    remain “attendant circumstances that are intrinsic to
    and ‘enmeshed’ in the hierarchy of offenses that HRS §
    291E–61 as a whole describes” . . . be alleged in the
    charging instrument and proven beyond a reasonable
    doubt at trial.
    Ruggiero, 114 Hawai#i at 238, 
    160 P.3d at 714
     (footnote omitted)
    (citing Domingues, 106 Hawai#i at 487, 
    107 P.3d at 416
    )).
    Thus, Ruggiero is distinguishable since the due process
    concerns cited by the court there are not present in the instant
    case.
    In State v. Murray, 116 Hawai#i 3, 
    169 P.3d 955
     (2007),
    this court considered the recidivist provisions of the offense of
    15
    (...continued)
    the person’s normal mental faculties
    or ability to care for the person
    and guard against casualty . . . .
    (b) For purposes of this section: . . .
    A person has the status of a “habitual operator
    of a vehicle while under the influence of an
    intoxicant” if the person has been convicted three or
    more times within ten years of the instant offense,
    for offenses of operating a vehicle under the
    influence of an intoxicant.
    (c) Habitually operating a vehicle while under
    the influence of an intoxicant is a class C felony.
    (d) For a conviction under this section the
    sentence shall be [lists sentences for convictions
    under this section].
    23
    *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
    abuse of family or household members under HRS § 709-906 (Supp.
    2004).16       116 Hawai#i at 8, 
    169 P.3 955
    .       The court determined
    that a defendant’s prior convictions were an element of the class
    C felony offense under HRS § 709-906(7).              Id. at 9, 
    169 P.3d at 961
    .        However, Murray is also distinguishable.
    Murray involved a defendant who was charged with
    causing physical abuse to his wife “within two (2) years of a
    second or subsequent conviction of Abuse of Family or Household
    Member.”        Id. at 5-6, 
    169 P.3 957
    -58.       This court held that
    whether Murray’s violation of HRS § 709-906 was a “third or
    subsequent offense” was an element of the class C felony offense.
    Id. at 8, 
    169 P.3 955
    .          This court reasoned that a violation of
    HRS § 709-906 escalates from a petty misdemeanor to a class C
    felony “depending on whether the violation is a first offense,
    16
    HRS § 709-906 provides in relevant part:
    (1) It shall be unlawful for any person, singly or in
    concert, to physically abuse a family or household
    member
    . . . .
    (5) Abuse of a family or household member . . . shall
    be sentenced as follows:
    (a) For the first offense the person shall serve
    a minimum jail sentence of forty-eight hours; and
    (b) For a second offense that occurs within one
    year of the first conviction, the person shall be
    termed a ‘repeat offender’ and serve a minimum jail
    sentence of thirty days . . . .
    (7) For a third or any subsequent offense that occurs
    within two years of a second or subsequent conviction,
    the person shall be charged with a class C felony.
    24
    *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
    second offense, or third or any subsequent offense that occurs
    within two years of a second or subsequent conviction.”            Id. at
    8, 
    169 P.3d at 960
    .
    This court held that when a definition of the offense
    requires a prior conviction to have occurred within a certain
    number of years, it is intrinsic to the crime and is an attendant
    circumstance.   Id. at 9, 
    169 P.3d at 961
    .        As this court stated,
    “[whether the offense] was a third or any subsequent offense that
    occur[red] within two years of a second or subsequent conviction”
    defines the felony offense of HRS § 709–906(7) as opposed to the
    misdemeanor offenses set forth in § 709–906(5)(a) and (b).”             Id.
    at 8, 
    169 P.3d at 960
    .     Thus, the reference to a “prior
    conviction set forth in HRS § 709–906(7) is ‘specified by the
    definition of the offense[.]’”       Id. (citing HRS § 702–205 and
    brackets in original).     This is not the situation in the instant
    case, and thus, Murray is distinguishable.
    In conclusion, we hold that a prior methamphetamine
    conviction under HRS § 712-1240.7 is a sentencing enhancement
    factor and not an element of the offense.         Accordingly, the
    circuit court erred by reading to the jury the stipulated
    language relating to Wagner’s prior conviction.          Instead,
    Wagner’s prior conviction should only have been utilized by the
    court as a sentencing enhancement factor.         Under the harmless
    25
    *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
    error standard, the appellate court “must determine whether there
    is a reasonable possibility that the error complained of might
    have contributed to the conviction.”         State v. Kassebeer, 118
    Hawai#i 493, 505, 
    193 P.3d 409
    , 421 (2008) (internal quotation
    marks and citation omitted).      “If there is such a reasonable
    possibility in a criminal case, then the error is not harmless
    beyond a reasonable doubt, and the judgment of conviction on
    which it may have been based must be set aside.”           State v. Gano,
    92 Hawai#i 161, 176, 
    988 P.2d 1153
    , 1168 (1999) (internal
    quotation marks and citation omitted).         Here, the jury’s
    knowledge of Wagner’s prior conviction could have prejudiced the
    jury and contributed to its decision to convict Wagner in the
    instant case.   Thus, the error is not harmless beyond a
    reasonable doubt.
    Although we need not address most of the remaining
    issues raised by Wagner, we must consider whether there was
    sufficient evidence to support his convictions.          In reviewing the
    sufficiency of the evidence, a court must view the evidence in
    the light most favorable to the prosecution.          State v. Tamura, 
    63 Haw. 636
    , 637, 
    633 P.2d 1115
    , 1117 (1981).         “The jury, as the
    trier of fact, is the sole judge of the credibility of witnesses
    or the weight of the evidence.”       Id. at 637-38, 
    633 P.2d at 1117
    .
    In the instant case, viewing the evidence in the light
    26
    *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
    most favorable to the prosecution, the record contains
    substantial evidence sufficient to support a jury verdict for
    methamphetamine trafficking in the first degree and prohibited
    acts related to drug paraphernalia.         For Wagner to be convicted
    of methamphetamine trafficking, the State had to prove that
    Wagner knowingly possessed one ounce or more of methamphetamine.
    See HRS § 712-1240.7(1)(a).17       For Wagner to be convicted of
    prohibited acts related to drug paraphernalia, the State had to
    prove that Wagner possessed with intent to use “drug
    paraphernalia to . . . prepare, test, analyze, pack, repack,
    store, contain, conceal, inject, ingest, inhale, or otherwise
    introduce into the human body a controlled substance.”                HRS
    § 329-43.5(a).18
    17
    HRS § 712-1240.7(1)(a) (2006) (“Methamphetamine trafficking in the
    first degree”) provides:
    (1) A person commits the offense of methamphetamine
    trafficking in the first degree if the person
    knowingly:
    (a) Possesses one or more preparations,
    compounds, mixtures, or substances of an
    aggregate weight of one ounce or more containing
    methamphetamine or any of its salts, isomers,
    and salts of isomers[.]
    18
    HRS § 329-43.5 (1988) (“Prohibited acts related to drug
    paraphernalia”) provides in pertinent part:
    (a) It is unlawful for any person to use, or to
    possess with intent to use, drug paraphernalia to
    plant, propagate, cultivate, grow, harvest,
    manufacture, compound, convert, produce, process,
    prepare, test, analyze, pack, repack, store, contain,
    (continued...)
    27
    *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
    The State’s evidence at trial established that
    approximately 45.38 grams, or about 1.6 ounces of
    methamphetamine, was recovered from Wagner’s room, along with
    items including a methamphetamine smoking pipe, zip packets, a
    digital scale and angle cut straw.19            In addition, police also
    recovered other items from the room which support the inference
    that Wagner knowingly possessed the methamphetamine and drug
    paraphernalia, including $10,000 in a “drug roll”20 from one of
    Wagner’s shirt pockets, $967 found on Wagner’s bed, a wallet
    containing Wagner’s identification documents, a notebook with
    drug slang terms written inside, and multiple cell phones with
    phone numbers affixed to the exterior (which Wagner admitted to
    possessing, but denied knowing why the phone numbers were taped
    18
    (...continued)
    conceal, inject, ingest, inhale, or otherwise
    introduce into the human body a controlled substance
    in violation of this chapter.
    19
    These items meet the statutory definition of “drug
    paraphernalia”–-the scale and straw can be used to “prepare, test,” and
    “analyze” the methamphetamine; the zip packets to “pack, repack, store,” and
    “contain” the methamphetamine; and the pipe to “ingest, inhale, or otherwise
    introduce” methamphetamine “into the human body.” HRS § 329-43.5(a).
    A police officer testified at trial that the digital scale could be used
    to weigh the drugs, and that the angle-cut scoop straw could be used to “scoop
    the methamphetamine out from within one zip packet, put it on the scale to
    weigh[] it, and then remove that and put it inside another baggie so that the
    weight measurement [was] correct.”
    20
    A police officer testified at trial that the way the money was
    “folded and the rubber bands are applied,” indicated that the money was a
    “drug roll.”
    28
    *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
    to the exterior).
    Wagner argues that there was not substantial evidence
    because Pea “admitted to the charge [regarding the contraband].”
    This argument is not persuasive, because the “test on appeal is
    not whether guilt is established beyond a reasonable doubt, but
    whether there was substantial evidence to support the conclusion
    of the trier of fact.”     Richie, 88 Hawai#i at 33, 
    960 P.2d at 1241
    .   Even though a police officer testified that Pea did take
    responsibility for the offenses of drug paraphernalia and
    promoting a dangerous drug, there is still substantial evidence
    to support the fact-finder’s conclusion that Wagner also
    possessed over one ounce of methamphetamine and several items of
    drug paraphernalia.     Thus, the ICA did not err in concluding that
    “the record contains sufficient and substantial evidence to
    support the jury verdict.”
    IV.   Conclusion
    For the foregoing reasons, the circuit court erred in
    construing Wagner’s prior conviction as an element of the
    offense, rather than a sentencing enhancement factor, and the ICA
    erred in affirming the circuit court’s judgment of conviction and
    sentence.   Accordingly, we vacate the ICA’s January 26, 2016
    judgment on appeal, which affirmed the circuit court’s
    29
    *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
    November 19, 2012 judgment of conviction and sentence, and remand
    this case to the circuit court for a new trial.21
    John A. Wagner,                           /s/ Mark E. Recktenwald
    petitioner, pro se
    /s/ Paula A. Nakayama
    Mark D. Disher
    for respondent                            /s/ Sabrina S. McKenna
    /s/ Richard W. Pollack
    /s/ Michael D. Wilson
    21
    On remand, the circuit court should consider the applicability of
    Act 231 and its amendment of HRS § 712-1240.7. See 2016 Haw. Sess. Laws Act
    231 §§ 52 at 763-64; 70 at 775-76.
    30