State v. Bovee. , 139 Haw. 530 ( 2017 )

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Electronically Filed
Supreme Court
SCWC-14-0001047
18-MAY-2017
08:10 AM
IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
---o0o---
STATE OF HAWAIʻI,
Respondent/Plaintiff-Appellee,
vs.
CHARLES L. BOVEE,
Petitioner/Defendant-Appellant.
SCWC-14-0001047
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-14-0001047; CR. NO. 13-1-1748)
MAY 18, 2017
RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.
OPINION OF THE COURT BY POLLACK, J.
This case arises from an undercover operation
conducted by the Honolulu Police Department (HPD) on November
26, 2013. The operation resulted in the arrest of defendant
Charles L. Bovee and codefendant Adam J. Apilado, both of whom
were later charged by felony information with one count of
methamphetamine trafficking in the second degree, in violation
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of Hawaii Revised Statutes (HRS) § 712-1240.8 (Supp. 2013)
(repealed 2016).1 Because the Circuit Court of the First
Circuit’s (circuit court) jury instruction on second-degree
methamphetamine trafficking could have been reasonably
understood as relieving the State of its burden to prove that
the relevant state of mind applies to the “attendant
circumstances” element of the charged offense, we hold that the
instruction was prejudicially erroneous and remand this case for
further proceedings.
I. FACTS AND PROCEDURAL HISTORY
A. Relevant Testimony at the Jury Trial
At a jury trial that commenced on April 21, 2014,2 HPD
Officer Jerome Pacarro testified to the following description of
events. On November 26, 2013, at approximately 1:30 p.m., he
was assigned to an undercover operation involving an attempt to
purchase narcotics from street-level dealers in Kakaako.3 On
the corner of Ohe Street and Olomehani Street, he saw two men
standing (later identified as Bovee and codefendant Apilado),
1
In relevant part, HRS § 712-1240.8 states that “[a] person
commits the offense of methamphetamine trafficking in the second degree if
the person knowingly distributes methamphetamine in any amount.” HRS § 712-
1240.8(1).
2
The Honorable Glenn J. Kim presided.
3
Officer Pacarro described a street-level dealer as someone who
sells twenty- to forty-dollars’ worth of narcotics, which is usually for
personal use.
2
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and Officer Pacarro made eye contact with them. Based on
Officer Pacarro’s observation of the men’s proximity,
conversation, body language, and demeanor, they “looked like two
friends hanging out.”
Officer Pacarro parked his car, and Apilado approached
his driver’s side window and engaged him in conversation even
though Officer Pacarro did not call out to Apilado or signal him
to approach. The conversation progressed into Officer Pacarro
asking Apilado if anybody “get”; the officer explained that in
street vernacular (i.e., street slang), this means, “[D]oes
anybody have narcotics for purchase, for sale?” Apilado asked
what Officer Pacarro was looking for, and the officer replied
that he was looking for “clear.” Officer Pacarro explained that
“[c]lear is another street vernacular used to describe crystal
methamphetamine.” Apilado asked how much Officer Pacarro
wanted, and the officer responded that he wanted forty dollars’
worth.
During the conversation between Apilado and Officer
Pacarro, Bovee stayed where he was, about ten feet away from
Apilado and the officer. Apilado turned and yelled to Bovee to
get the “stuff” for Officer Pacarro. Bovee did not respond or
do anything. Apilado then told the officer that he was “going
to send his boy” to get the methamphetamine, after which Apilado
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approached Bovee, who ended up coming to Officer Pacarro’s
driver’s side window and told the officer that he had to go to a
nearby tent to retrieve the “stuff.” Bovee told Officer Pacarro
that he should give him the money at that point, but Officer
Pacarro told Bovee that he did not want to get ripped off and
asked Bovee if he could go with him to get the “stuff.” Bovee
agreed. Bovee, Apilado, and Officer Pacarro walked together and
approached a brown tent, but at the intersection across from
where the brown tent was located, Apilado told Officer Pacarro
that they should stop there and that the officer should give the
money to Bovee. Officer Pacarro handed the money to Bovee, who
then entered the tent alone. Five minutes passed, during which
Officer Pacarro and Apilado engaged in conversation and Apilado
yelled numerous times for Bovee to hurry up. Bovee then exited
the tent with a white cigarette-type box in his hand and gave
the box to Apilado, who then handed the box to Officer Pacarro.
Inside the box, Officer Pacarro observed a “clear ziploc kind of
bag, containing white crystalline substance.” Between the time
that Bovee exited the tent and gave Apilado the box, Officer
Pacarro did not see anyone put anything into the box. The
substance recovered by Officer Pacarro was later subjected to
chemical analysis and identified as crystal methamphetamine.
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Bovee also testified to the following recounting of
events. On November 26, 2013, a white car pulled up in the area
where Bovee and Apilado were located. After the car parked,
Apilado approached the car, and Apilado and the driver of the
car “seemed like friends.” After having a brief conversation
with the driver, Apilado approached Bovee and asked Bovee to
take some money from the driver and bring it to Apilado. Bovee
was hesitant and refused to do Apilado’s bidding, but Apilado
insisted and “seemed a little more hostile as [Bovee] kept
refusing,” so Bovee eventually approached the car.
When Bovee approached the driver, the driver did not
explain what the money was for and refused to give the money.
Instead, the driver got out of the car and talked to Apilado;
Bovee did not hear the conversation. Apilado and the driver
started walking towards the corner of Ohe and Olomehani Streets,
and Apilado told Bovee to follow. Apilado then told the driver
to hand Bovee the money, and he instructed Bovee to take the
money and deliver it to Cory, a lady in the brown tent. Bovee
did not know how much money the driver handed him. Bovee
delivered the money to Cory, who then went inside the tent even
though Bovee did not tell her what he (Bovee) needed; while this
was happening, Apilado and the driver were waiting at the corner
of the intersection. When Cory exited the tent, she handed
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Bovee a pack of cigarettes. Bovee did not look inside the pack
and delivered it to Apilado, who then handed it to the driver.
Later that day, Bovee and Apilado were arrested.
During his testimony, Bovee was asked whether he
remembered saying during a post-arrest interview that he “knew
Apilado was doing a drug deal.” Bovee answered in the
affirmative but clarified that he only knew about the fact that
Apilado was engaging in a drug deal after he was arrested.4
Bovee testified that at the time of the transaction,
there were no conversations about drugs, the amount of drugs, or
the amount of money that the driver gave, and Bovee only
followed Apilado’s instruction to take some money from the
driver. Bovee did not get any money out of his participation in
the transaction or any other benefit whatsoever. He did not
know what happened to the money.
B. Settling of Jury Instructions
The State’s proposed instruction for the charged
offense of second-degree methamphetamine trafficking was
4
Bovee also stated during the interview that there was nothing in
the cigarette pack when he had it and that it was Apilado who put drugs in
the pack and gave it to the driver. The pack felt empty when he received it
from Cory, so Bovee assumed that it was empty without actually opening it and
checking its contents. Bovee indicated that he did not know that there were
drugs in the cigarette pack. At the end of his interview, however, Bovee
apparently stated that he had a “good idea” what was in the pack. Bovee
clarified at trial that he only “had a feeling” that what transpired was not
“a normal deal.” After he was arrested and detained, and after understanding
what he was charged with, Bovee “figured” that Apilado was engaged in a drug
deal.
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identical to Hawaii Pattern Jury Instructions--Criminal (HAWJIC)
No. 13.62:
In Count I of the Information, the Defendant,
CHARLES BOVEE, is charged with the offense of
Methamphetamine Trafficking in the Second Degree.
A person commits the offense of Methamphetamine
Trafficking in the Second Degree if he knowingly
distributes methamphetamine in any amount.
There are two material elements of the offense
of Methamphetamine Trafficking in the Second Degree, each
of which the prosecution must prove beyond a reasonable
doubt.
The two elements are:
1. That on or about November 26th[,] 2013, in
the City and County of Honolulu, State of
Hawaii, the Defendant distributed
methamphetamine in any amount;
and
2. That the Defendant did so knowingly.
The circuit court’s proposed instruction on second-
degree methamphetamine trafficking was as follows:
The Defendant, Charles L. Bovee, is charged
with the offense of Methamphetamine Trafficking in the
Second Degree.
A person commits the offense of Methamphetamine
Trafficking in the Second Degree if he knowingly
distributes methamphetamine in any amount.
There is one material element of the offense of
Methamphetamine Trafficking in the Second Degree, which the
prosecution must prove beyond a reasonable doubt.
The element is as follows:
1. That on or about the 26th day of November,
2013, in the City and County of Honolulu,
State of Hawaii, the Defendant distributed
methamphetamine in any amount, and he was
aware that he was doing so.
“To distribute” means to sell, transfer,
prescribe, give, or deliver to another, or to leave,
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barter, or exchange with another, or to offer or agree to
do the same.
(Emphasis added.) The court explained the rationale behind its
proposed instruction:
Court’s proposed 1 is the elements instruction
for the charged offense, meth traffic in the second degree.
You see what I do here. I obviate the need to give them
the definitions of knowingly. I obviate the need for the
jury to figure out whether the element is conduct,
attendant circumstances, or result of conduct.
I think it’s clearly a conduct element. HAWJIC
has two elements, with one element the state of mind, which
they always do, which is wrong according to Aganon.[5]
And, like I said, I do it this way because I
think the charge lends itself to this treatment. And it’s
-- anything I can do to keep the jury -- make their job
easier, and keep them from having to do stuff, and to keep
them from being confused, I like to do. So that’s why I do
it this way. I incorporate the knowing state of mind, and
the definition of knowing as to conduct, right into the
element.
And this obviates the need to give them, like I
say, the definitions of knowingly. And it obviates the
need for them to make certain decisions, like is -- what
kind of element is this, et cetera. So that’s why I do it
this way.
(Emphases added.)
The State objected to the court’s instruction and
requested that the court give the standard pattern instruction
as provided by HAWJIC No. 13.62. The court explained that its
proposed instruction simplifies the analytical framework for the
jury because the instruction clarifies that the only element of
the charged offense is a “conduct” element, thereby eliminating
the risk of the jury erroneously characterizing the element of
5
The circuit court was referring to State v. Aganon, 97 Hawaii
299, 36 P.3d 1269 (2001).
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the offense and, consequently, the risk of the jury misapplying
the “knowing” state of mind:
You know, they’re never told what is this
element. Is it conduct, the result of conduct, or
attendant circumstance. So they have to make that
decision. Before they can apply the correct definition of
the state of mind to the element, they got to decide what
kind of an element it is. Correct?
. . . .
And what if they choose wrong? What if they
say I think it’s a result of conduct. . . . Then they’re
going to apply the wrong definition of knowingly to that
element, because I think it’s a conduct element.
You know, this obviates that for them. It
takes them out of their hands. And it builds into the
element, which is a conduct element, the definition of
knowingly as to conduct, which is that the person is aware
that his conduct is of that nature. And I think that’s
materially the same as the person’s aware that he’s doing
whatever he’s doing, that he’s committing the act.
The court reasoned that its proposed instruction is
essentially what the jury has to decide:
And what they have to decide is, did he distribute
methamphetamine in any amount? And was he aware that his
conduct was of that nature.
The court also reiterated that its approach is appropriate
because second-degree methamphetamine trafficking only has “one
element. It’s conduct. And you’ve got one state of mind. And
it’s knowingly.”
Defense counsel objected to the court’s proposed
instruction on the charged offense, arguing, inter alia, that
the State was required to prove beyond a reasonable doubt that
Bovee knew that the substance he was distributing was
methamphetamine. Defense counsel also inquired as to the
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court’s underlying reasoning for withholding the jury
instruction on the definition of “knowingly” as provided by
HAWJIC No. 6.03.6 The court explained that it was not going to
give the definition of “knowingly” because doing so would be
redundant and confusing with respect to the instructions the
court would be giving.
Accordingly, the court submitted to the jury its
proposed instruction on second-degree methamphetamine
trafficking over both parties’ objection.7 HAWJIC No. 6.03 on
the definition of “knowingly” was not given to the jury.
The jury found Bovee guilty of second-degree
methamphetamine trafficking. In its July 9, 2014 Judgment of
Conviction and Sentence (judgment of conviction), the circuit
court sentenced Bovee to ten years of incarceration with a
6
HAWJIC No. 6.03 defines “knowingly” as follows:
A person acts knowingly with respect to his conduct when he
is aware that his conduct is of that nature.
A person acts knowingly with respect to attendant
circumstances when he is aware that such circumstances
exist.
A person acts knowingly with respect to a result of his
conduct when he is aware that it is practically certain
that his conduct will cause such a result.
7
The court’s proposed instruction on the included offense of
promoting a dangerous drug in the third degree was identical in format to the
court’s instruction on second-degree methamphetamine trafficking. This
instruction was also given to the jury over both parties’ objection, which
was based upon the same reasons underlying their objection to the court’s
decision to give the proposed instruction on the charged offense.
10
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mandatory minimum term of one year of incarceration and to a
mandatory fine. Bovee timely filed a notice of appeal to the
Intermediate Court of Appeals (ICA).
II. ICA PROCEEDINGS
In his opening brief, Bovee argued that the jury
instructions in this case “only required the jury to unanimously
find that he was aware that his conduct was the distribution of
an object”; the instructions did not require the jury to
unanimously find, with respect to the attendant circumstances
element, “that [he] was aware that what he was distributing was
methamphetamine.” Bovee maintained that, contrary to the
circuit court’s determination that second-degree methamphetamine
trafficking only has a conduct element, the offense actually has
two elements: conduct and attendant circumstances. Bovee
contended that the circuit court’s error was prejudicial because
his defense was that “he did not know what the money was for,”
nor did he know that “there was methamphetamine in the cigarette
box.”
In its answering brief, the State asserted that the
circuit court’s instruction with regard to second-degree
methamphetamine trafficking adequately informed the jury that
the “knowing” state of mind applied to both the attendant
circumstance and the conduct elements of the offense, not just
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to the conduct element. The State submitted that there is no
mandate that the circuit court instruct the jury by the separate
elements of the charged offense. The State concluded that the
court provided an understandable instruction that aided the jury
in applying the law to the facts of the case.
In his reply brief, Bovee maintained that, while it
would appear at first glance that the circuit court’s
instruction on the charged offense was sufficient to inform the
jury that the defendant must have been aware that he was
distributing methamphetamine, the phrase that “he was aware that
he was doing so” could easily be interpreted as requiring the
defendant to be aware of his conduct of distributing and not
necessarily that he was also aware that what he was distributing
was methamphetamine.8
The ICA issued a Summary Disposition Order (SDO) on
December 9, 2016, affirming the judgment of conviction. The ICA
explained that, “[w]hen jury instructions or the omission
thereof are at issue on appeal, the standard of review is
whether, when read and considered as a whole, the instructions
given are prejudicially insufficient, erroneous, inconsistent,
8
Bovee and the State made similar arguments with regard to the
included offense of promoting a dangerous drug in the third degree.
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or misleading.”9 (Quoting State v. Frisbee, 114 Hawaii 76, 79-
80, 156 P.3d 1182, 1185-86 (2007)). Applying this standard to
the facts of this case, the ICA reasoned that while the
challenged jury instruction may have been “technically . . .
incorrect,” it was “substantively correct” and was not
prejudicially insufficient. The ICA pointed to this court’s
decision in Aganon as a basis for its decision.
For example, in Aganon, even where the trial court
improperly conflated the conduct and result material
elements of murder in the second degree, the supreme court
observed that “the [jury instruction] error did not
adversely affect Aganon’s substantial rights. The court’s
jury instructions were consonant with the spirit of HRS §
702-204 [(2014 Repl.)], which prescribes that the requisite
state of mind applies to each element of the offense.
Thus, the jury instructions were substantively, if not
technically, correct.”
(Quoting State v. Aganon, 97 Hawaii 299, 303, 36 P.3d 1269, 1273
(2001)).
As to Bovee’s argument that the circuit court’s
instruction was prejudicial to his defense--that he was not
aware that the object he was distributing was methamphetamine--
the ICA responded that “[a] reasonable jury would understand
that the offense required that Bovee distributed methamphetamine
in any amount.” In addition, the ICA reasoned that “[t]he jury
clearly disbelieved Bovee’s testimony as to his knowledge of the
methamphetamines within the cigarette pack and found him guilty
9
The ICA’s SDO can be found in full at State v. Bovee, No. CAAP-
XX-XXXXXXX, 2016 WL 7189933 (App. Dec. 9, 2016) (SDO).
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of knowingly distributing those methamphetamines.” Thus, the
ICA concluded that the circuit court did not err in issuing its
instruction regarding the charged offense or the included
offense.
III. STANDARD OF REVIEW
The propriety of jury instructions is a question of
law reviewed de novo using the following standard:
[W]hether, when read and considered as a whole, the
instructions given are prejudicially insufficient,
erroneous, inconsistent, or misleading. Erroneous
instructions are presumptively harmful and are a ground for
reversal unless it affirmatively appears from the record as
a whole that the error was not prejudicial. . . . 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. Frisbee, 114 Hawaii 76, 79–80, 156 P.3d 1182, 1185–86
(2007) (quoting State v. Gonsalves, 108 Hawaii 289, 292–93, 119
P.3d 597, 600–01 (2005)).
IV. DISCUSSION
A. The Elements of Second-Degree Methamphetamine Trafficking
The fundamental principles underlying the manner in
which the State must prove a charged offense against a defendant
have been summarized by this court as follows:
HRS § 701–114 (1993) specifies that “no person may be
convicted of an offense unless . . . [t]he state of mind
required to establish each element of the offense” is
proven beyond a reasonable doubt. (Emphasis added.)
Similarly, HRS § 702–204 (1993) provides that “a person is
not guilty of an offense unless the person acted
intentionally, knowingly, recklessly, or negligently, as
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the law specifies, with respect to each element of the
offense.” (Emphasis added.)
State v. Aganon, 97 Hawaii 299, 302, 36 P.3d 1269, 1272 (2001).
HRS § 702–205 (1993) identifies the elements of an offense to be
such (1) conduct, (2) attendant circumstances, and (3) results
of conduct, as are specified by the definition of the offense.
Id. However, not all offenses enumerated in the Hawaii Penal
Code contain all three elements. Id. at 303, 36 P.3d at 1273;
see State v. Valentine, 93 Hawaii 199, 207, 998 P.2d 479, 487
(2000). Thus, in reviewing the propriety of the circuit court’s
instruction on second-degree methamphetamine trafficking, the
first step is to determine the elements that the statute
specifies.
In relevant part, HRS § 712-1240.8 states as follows:
“A person commits the offense of methamphetamine trafficking in
the second degree if the person knowingly distributes
methamphetamine in any amount.” HRS § 712-1240.8 (Supp. 2013)
(repealed 2016).10 The “conduct” element of a criminal offense
is defined as “an act or omission, or, where relevant, a series
of acts or a series of omissions, or a series of acts and
omissions.” HRS § 701-118 (1993). The “conduct” element of
10
Act 231, § 56 repealed HRS § 712-1240.8. 2016 Haw. Sess. Laws
Act 231, § 56 at 765. The relevant provisions of Act 231 and their effects
on the disposition of this case will be discussed infra.
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second-degree methamphetamine trafficking is to “distribute[]”
an object. “‘To distribute’ means to sell, transfer, prescribe,
give, or deliver to another, or to leave, barter, or exchange
with another, or to offer or agree to do the same.” HRS § 712-
1240 (1993).
The “attendant circumstances” element, in offenses
prohibiting the possession of certain objects, consists of “the
particular qualities of the object that make it illegal to
possess it.” State v. Jenkins, 93 Hawaii 87, 111, 997 P.2d 13,
37 (2000). In Jenkins, the defendant was charged with, among
other offenses, possession of a firearm by a person convicted of
certain crimes under HRS § 134-6(c) and (e) (1993 & Supp. 1997)
(repealed 2006). Id. at 94, 997 P.2d at 20. In pertinent part,
HRS § 134-6(e) provided, “Any person violating this section by
carrying or possessing a loaded or unloaded pistol or revolver
without a license . . . shall be guilty of a class B felony.”
HRS § 134-6(e). This court determined that “carrying” is the
“conduct” element, and “the circumstances attendant to
‘carrying’ that object, i.e., the object’s particular attribute
rendering its carrying a criminal offense,” under HRS § 134-6,
is the object’s “quality of being a firearm.” Jenkins, 93
Hawaii at 113, 997 P.2d at 39. Thus, this court held that the
circuit court’s instructions should have been as follows: that
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the defendant “carried or possessed a firearm, in violation of
HRS § 134–6(e), with (a) intent or knowledge that he carried or
possessed an object and (b) with intent, knowledge, or reckless
disregard of the substantial and unjustifiable risk that the
object was a pistol or a revolver.” Id. (emphases added).
This court employed the same analysis in Valentine, 93
Hawaii 199, 998 P.2d 479. In that case, the defendant was
charged with the offense of attempted prohibited possession of a
firearm pursuant to HRS §§ 705-500 (1993) and 134-7(b) (1993).
Id. at 201, 988 P.2d at 481. HRS § 134-7(b) provides, in
relevant part, “No person who . . . has been convicted in this
State or elsewhere of having committed a felony, or any crime of
violence, or an illegal sale of any drug shall own, possess, or
control any firearm or ammunition therefor.” This court
concluded that the elements of the offense described in HRS §
134-7(b), as applied to the facts of the Valentine case, are the
following: “(1) that a person convicted of a felony (attendant
circumstance); (2) possesses or controls an object (conduct);
(3) exhibiting the attributes of a firearm (attendant
circumstances).” Valentine, 93 Hawaii at 207, 998 P.2d at 487.
The court further observed that the offense under HRS § 134-7(b)
does not have a “result of conduct” element. Id.
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Guided by these precedents, second-degree
methamphetamine trafficking has two “attendant circumstances”
elements: (a) the object distributed is methamphetamine and (b)
the amount of methamphetamine (which in this case is “any
amount”).11 Notably, “methamphetamine” and “any amount” are
attributes that make the distribution (conduct element) criminal
pursuant to HRS § 712-1240.8.12 Jenkins, 93 Hawaii at 113, 997
P.2d at 39. This is consistent with Jenkins and Valentine, both
of which held that as to the conduct of “possession” and
“carrying,” the attendant circumstances are the qualities of the
object that render its possession or carrying illegal. Id.;
Valentine, 93 Hawaii at 207, 998 P.2d at 487.
The determination that “methamphetamine” and “any
amount” are “attendant circumstances” elements of second-degree
11
As stated by this court, to obtain a conviction for distributing
an illegal drug in cases “where the sale has been consummated,” “the
government must establish beyond a reasonable doubt that the substance
involved is that specified in the indictment.” State v. Schofill, 63 Haw.
77, 80–81, 621 P.2d 364, 368 (1980). When the sale of the illegal drug has
not been consummated and the gist of the offense is an offer or the agreement
to sell narcotics, the State is not required to prove that the drug involved
is that specified in the charging instrument. Id. It follows that in such
cases, the material elements with which a trial court must charge the jury
would differ from those required in this case. See id.
12
Because the offense is committed when a person distributes
methamphetamine in any amount, the “any amount” attendant circumstance
element of the offense is satisfied when the State proves beyond a reasonable
doubt that the object distributed is methamphetamine. Therefore, for the
purposes of second-degree methamphetamine trafficking, the “methamphetamine”
and “any amount” attendant circumstances elements can be consolidated within
a single element.
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methamphetamine trafficking is underscored by HRS § 712-1252.13
HRS § 712-1252 provides, in pertinent part, the following:
(1) The fact that a person engaged in the conduct specified
by any section in this part is prima facie evidence that
the person engaged in that conduct with knowledge of the
character, nature, and quantity of the dangerous drug,
harmful drug, detrimental drug, or intoxicating compounds
possessed, distributed, or sold.
HRS § 712-1252(1) (1993) (emphasis added). HRS § 712-1252(1)
thus indicates that the State, in proving offenses under Part IV
of HRS chapter 712 (Offenses Related to Drugs and Intoxicating
Compounds), must demonstrate beyond a reasonable doubt that (1)
the “person engaged in the conduct specified” by the applicable
statute and (2) the “person engaged in that conduct with
knowledge of the character, nature, and quantity of the
dangerous drug.” HRS § 712-1252(1). The character, nature, and
quantity of the illegal drug are thus “attendant circumstances”
elements.
To conclude, the offense of second-degree
methamphetamine trafficking under HRS § 712-1240.8 has two
elements: (1) distribution of an object (conduct) and (2) the
object is methamphetamine in any amount (attendant
13
Interpreting the meaning of a statute by relying in part on
another related statute is an accepted interpretive practice under the well-
settled canon that “[l]aws in pari materia, or upon the same subject matter,
shall be construed with reference to each other. What is clear in one
statute may be called upon in aid to explain what is doubtful in another.”
State v. Alangcas, 134 Hawaii 515, 527, 345 P.3d 181, 193 (2015) (quoting
State v. Kamanao, 118 Hawaii 210, 218, 188 P.3d 724, 732 (2008)); accord HRS
§ 1–16 (1993).
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circumstances).14 The offense has no “results of conduct”
element. Cf. Valentine, 93 Hawaii at 207, 998 P.2d at 487.
B. The Applicable State of Mind as to Each Element of the
Charged Offense
HRS § 702–204 provides that “a person is not guilty of
an offense unless the person acted intentionally, knowingly,
recklessly, or negligently, as the law specifies, with respect
to each element of the offense.” HRS § 702–204 (1993). As
stated, HRS § 712-1240.8 provides, “A person commits the offense
of methamphetamine trafficking in the second degree if the
person knowingly distributes methamphetamine in any amount.”
HRS § 712-1240.8(1) (Supp. 2013) (repealed 2016) (emphasis
added). Thus, “the law specifies,” HRS § 702–204, that a person
must act “knowingly,” HRS § 712-1240.8, with respect to the
elements of second-degree methamphetamine trafficking. HRS §
702-206 defines “knowingly” as follows:
(a) A person acts knowingly with respect to his conduct
when he is aware that his conduct is of that nature.
(b) A person acts knowingly with respect to attendant
circumstances when he is aware that such circumstances
exist.
(c) A person acts knowingly with respect to a result of his
conduct when he is aware that it is practically certain
that his conduct will cause such a result.
14
The elements discussed will not be identical to situations
involving a non-consummated sale of an illegal drug that occurs in the course
of an offer or agreement to sell such drug. See supra note 11. We do not
further elaborate on the material elements that must be charged in such
situations because they are not pertinent to the facts of this case.
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HRS § 702-206(2) (1993).
Applying the statutory definition of “knowingly” to
the conduct element and the attendant circumstances element of
second-degree methamphetamine trafficking, the State must prove
beyond a reasonable doubt that the person charged (1) is aware
that he or she engaged in an act of distribution of an object
and (2) is aware that the object distributed constitutes
methamphetamine in any amount.
C. The Circuit Court’s Jury Instruction on Second-Degree
Methamphetamine Trafficking was Prejudicially Insufficient
We now consider whether the circuit court’s
instruction on second-degree methamphetamine trafficking was
correct in light of the elements discussed and the state of mind
that must be applied as to each element.
It is the duty of the circuit judge to see to it that the
case goes to the jury in a clear and intelligent manner, so
that they may have a clear and correct understanding of what
it is they are to decide, and he or she shall state to them
fully the law applicable to the facts.
State v. Culkin, 97 Hawaii 206, 214–15, 35 P.3d 233, 241–42
(2001) (quoting State v. Kinnane, 79 Hawaii 46, 50, 897 P.2d
973, 977 (1995)).
The circuit court’s instruction, given over the
objection of both Bovee and the State, provided as follows:
The Defendant, Charles L. Bovee, is charged
with the offense of Methamphetamine Trafficking in the
Second Degree.
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A person commits the offense of Methamphetamine
Trafficking in the Second Degree if he knowingly
distributes methamphetamine in any amount.
There is one material element of the offense of
Methamphetamine Trafficking in the Second Degree, which the
prosecution must prove beyond a reasonable doubt.
The element is as follows:
1. That on or about the 26th day of November,
2013, in the City and County of Honolulu,
State of Hawaii, the Defendant distributed
methamphetamine in any amount, and he was
aware that he was doing so.
“To distribute” means to sell, transfer,
prescribe, give, or deliver to another, or to leave,
barter, or exchange with another, or to offer or agree to
do the same.
(Emphasis added.)
The circuit court’s instruction states that there is
but one material element, when in fact, as discussed supra,
there are two. Based on the language of the instruction, the
circuit court incorrectly combined the two material elements of
second-degree methamphetamine trafficking into one. See State
v. Aganon, 97 Hawaii 299, 303, 36 P.3d 1269, 1273 (2001)
(concluding that it was error to combine two elements of the
offense into one and instructing the circuit court to separately
list the elements on remand). In addition, the circuit court’s
instruction is ambiguous because the jury could have interpreted
it as requiring the application of the “knowing” state of mind
only to “distribute,” the conduct element, and not to the
attendant circumstances element. The instruction indicated that
the single element of the offense was that “the Defendant
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distributed methamphetamine in any amount, and he was aware that
he was doing so.” (Emphasis added.) The term “doing” is
commonly understood as referring to “the act of performing or
executing” an action.15 Thus, awareness that one is “doing”
something is ordinarily understood to require awareness that one
is “performing or executing” a particular “conduct.” Since the
wording of the circuit court’s instruction was predominantly
centered on the requirement of “doing,” the instruction may have
conveyed to the jury that the State’s burden was solely to prove
Bovee’s awareness that he was engaged in the distribution (e.g.,
transferring, selling, delivering, etc.) of the object involved
in this case.
Accordingly, the court’s instruction may have been
understood as having only one requirement: that Bovee was aware
that he was distributing an object. And this is supported by
the circuit court’s statement that there was only one element,
“conduct”:
You see what I do here. I obviate the need to
give them the definitions of knowingly. I obviate the need
for the jury to figure out whether the element is conduct,
attendant circumstances, or result of conduct.
I think it’s clearly a conduct element.
. . . .
15
Doing, Merriam-Webster, https://www.merriam-webster.com/
dictionary/doing (last visited May 3, 2017).
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I incorporate the knowing state of mind, and
the definition of knowing as to conduct, right into the
element.
(Emphases added.) Thus, the circuit court’s instruction was
meant to apply the “knowing” state of mind only to the conduct
element (to “distribute”) of second-degree methamphetamine
trafficking and not to the attendant circumstances element
(i.e., “methamphetamine in any amount”). Simply stated, the
instructions did not make it clear that Bovee’s awareness
applied both to his conduct and to the character and nature of
the object he was distributing. See Aganon, 97 Hawaii at 303—
04, 36 P.3d at 1273—74 (explaining that the jury instruction was
erroneous because it allowed the jury to find the defendant
guilty based on the satisfaction of just one of the elements of
the offense so long as the element is accompanied by the
requisite state of mind); see also Culkin, 97 Hawaii at 214–15,
35 P.3d at 241–42 (holding that the adequacy of a jury
instruction is measured by determining whether the instruction
clearly and correctly specifies what the jury must decide).
The absence of any instruction regarding the
definition of “knowingly” exacerbated the ambiguity in the
circuit court’s instruction. The circuit court stated that it
“incorporate[d] the knowing state of mind, and the definition of
knowing as to conduct, right into the element.” The court,
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therefore, did not clearly apprise the jury of the fact that, as
to attendant circumstances, “[a] person acts knowingly . . .
when he is aware that such circumstances exist.” HRS § 702-
206(2)(b) (1993). Thus, the circuit court’s instruction was
“prejudicially insufficient” because it was inconsistent with
and did not clearly conform to the requirements of HRS § 702–
204, which requires proof that “the person acted intentionally,
knowingly, recklessly, or negligently, as the law specifies,
with respect to each element of the offense.” HRS § 702–204
(1993) (emphasis added); Aganon, 97 Hawaii at 302, 36 P.3d at
1272.16 To this extent, the instruction did not provide members
of the jury with “a clear and correct understanding of what it
is they are to decide.” Culkin, 97 Hawaii at 214–15, 35 P.3d at
241–42 (quoting Kinnane, 79 Hawaii at 50, 897 P.2d at 977).
The ICA, relying on Aganon, concluded that the “jury
instruction was substantively correct and therefore was not
prejudicially insufficient, erroneous, inconsistent, or
misleading.” The ICA reasoned that “in Aganon, even where the
trial court improperly conflated the conduct and result material
16
We note that the circuit court’s incorporation of the applicable
state of mind into its enumeration of the material elements of the charged
offense was commendable as it sought to assist the jury’s understanding of
the requirements for proof of an offense. However, in this case, the court’s
integration of the state of mind into the elements of the offense was
incomplete.
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elements of murder in the second degree, the supreme court
observed that ‘the [jury instruction] error did not adversely
affect Aganon’s substantial rights.’” Id. (alteration in
original) (quoting Aganon, 97 Hawaii at 303, 36 P.3d at 1273).
The ICA’s reading of Aganon is incorrect. At the outset, Aganon
determined that the circuit court’s instruction was erroneous
and prejudicial because it allowed the jury to find the
defendant “guilty based on only one element of the offense so
long as it was accompanied by the requisite state of mind.”
Aganon, 97 Hawaii at 303, 36 P.3d at 1273. The erroneous
instruction, the court continued, was aggravated by the circuit
court’s response to a jury communication--that conviction may be
had simply by finding that the applicable state of mind is
present as to any one element (and not as to all elements) of
the offense. Id. The Aganon court, invoking plain error,
vacated the conviction for second-degree murder and remanded the
case for a retrial. Id. at 303–04, 36 P.3d at 1273–74.
In addition, this court determined in Aganon that the
circuit court’s conflation of the “conduct” and “result”
elements of second-degree murder was erroneous and instructed
the circuit court to separately list these two distinct elements
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on remand. Id. at 303, 36 P.3d at 1273.17 Thus, contrary to
the ICA’s determination, Aganon reinforces the conclusion that
the circuit court’s instruction in this case is prejudicially
insufficient and erroneous because, similar to Aganon, the
instruction here conflated the “conduct” and “attendant
circumstances” elements of the offense and was ambiguous in that
it could have advised the jury that the satisfaction of the
“conduct” element, when accompanied by the “knowing” state of
mind, was sufficient to convict Bovee. See id. at 303–04, 36
P.3d at 1273–74.
D. The Erroneous Jury Instruction Was Not Harmless Beyond A
Reasonable Doubt
A determination that the circuit court’s instruction
was prejudicially insufficient and had the potential to mislead
the jury does not end the analysis, for the “question [is]
whether there is a reasonable possibility that [the] error might
have contributed to conviction.” State v. Frisbee, 114 Hawaii
76, 79–80, 156 P.3d 1182, 1185–86 (2007) (quoting State v.
Gonsalves, 108 Hawaii 289, 292–93, 119 P.3d 597, 600–01 (2005)).
“If there is such a reasonable possibility in a criminal case,
17
This court’s conclusion in Aganon that the “jury instructions
were consonant with the spirit of HRS § 702-204” was made with respect to the
circuit court’s characterization of the “requisite state of mind as a
‘material element’” and not with respect to the circuit court’s conflation of
two distinct elements of second-degree murder, as the ICA’s SDO appears to
state. Aganon, 97 Hawaii at 303, 36 P.3d at 1273.
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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.” Id. In this case, a central part of Bovee’s
defense was that he was not aware of the character of the object
that he distributed; that is, he did not know that the object
was methamphetamine.
This defense theory was developed throughout the jury
trial. In his opening statement, defense counsel stated that
Apilado wanted Bovee “to basically be a mule”--someone who would
carry the money and the box that contained methamphetamine.
During his testimony, Bovee stated that he was not aware that he
was participating in a narcotics transaction or that the object
he received from Cory and delivered to Officer Pacarro contained
or constituted methamphetamine. In his closing argument,
defense counsel underscored Bovee’s testimony that he was not
aware that the cigarette box Cory handed him and later delivered
to Officer Pacarro contained methamphetamine.
The circuit court’s instruction, however, did not
clearly inform the jury that the “knowing” state of mind applied
to the attendant circumstances element of the charged offense,
i.e., that the object distributed constituted methamphetamine in
any amount. The instruction had at least the potential of
conveying to the jury that the State was not required to prove
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Bovee’s awareness of the fact that the object he distributed was
methamphetamine. Accordingly, the circuit court’s ambiguous
instruction regarding second-degree methamphetamine trafficking,
coupled with the absence of the definition of the “knowing”
state of mind, was not harmless beyond a reasonable doubt.18 Cf.
State v. Aganon, 97 Hawaii 299, 303–04, 36 P.3d 1269, 1273–74
(2001) (concluding that the erroneous instruction was not
harmless because it required the jury to find the defendant
“guilty based on only one element of the offense so long as it
was accompanied by the requisite state of mind”); State v.
Valentine, 93 Hawaii 199, 208, 998 P.2d 479, 488 (2000)
(concluding that the requisite state of mind for the offense of
attempted prohibited possession of a firearm is “intentionally”
and holding that the circuit court’s instruction, which allowed
the jury to convict the defendant upon a “knowing” state of
mind, was not harmless beyond a reasonable doubt).19
18
This holding similarly applies to the circuit court’s jury
instruction on the included offense of promoting a dangerous drug in the
third degree.
19
The ICA determined that “[t]he jury clearly disbelieved Bovee’s
testimony as to his knowledge of the methamphetamines within the cigarette
pack and found him guilty of knowingly distributing those methamphetamines.”
However, as discussed, the circuit court’s instruction had at least the
potential of leading the jury to believe that it was not required to find
beyond a reasonable doubt that Bovee was aware that the object he was
distributing was methamphetamine in any amount. Under such circumstances, it
cannot be readily concluded that the jury “clearly disbelieved” Bovee’s
defense.
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E. Act 231 and the ICA’s Failure to Remand the Case for
Resentencing
Bovee further contends that the ICA erred in not
remanding his case for resentencing pursuant to Act 231 of the
Session Laws of Hawaii 2016. Act 231 repealed HRS § 712-1240.8
(Supp. 2013) (repealed 2016) (methamphetamine trafficking in the
second degree) under which Bovee was charged and convicted.
2016 Haw. Sess. Laws Act 231, § 56 at 765. Act 231 also amended
HRS § 712-1242(1)(c) (Supp. 2016) (promoting a dangerous drug in
the second degree) in order to expand its application to
methamphetamine distribution.20 The practical effect of the
repeal of HRS § 712-1240.8 and the amendment to HRS § 712-
1242(1)(c) was to transfer the offense previously prohibited by
HRS § 712-1240.8 to HRS § 712-1242(1)(c).
The transfer to HRS § 712-1242(1)(c) provides greater
discretion to a court rendering a sentence for a defendant
convicted of offenses involving methamphetamine distribution.
Under HRS § 712-1240.8, the sentence for second-degree
methamphetamine trafficking was “an indeterminate term of
imprisonment of ten years with a mandatory minimum term of
imprisonment of not less than one year and not greater than four
20
Act 231, § 55 amended the language of HRS § 712-1242(1)(c) as
follows: “(c) Distributes any dangerous drug in any amount[, except for
methamphetamine].” (Ramseyer formatted.)
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years and a fine not to exceed $10,000,000,” with longer
mandatory minimum sentences prescribed for repeat offenders.
HRS § 712-1240.8(3). After the incorporation of second-degree
methamphetamine trafficking into HRS § 712-1242(1)(c), which
remains classified as a class B felony (see HRS § 712-1242(2)),
a person convicted of the offense may now be sentenced to a term
of probation under HRS § 706-620 (Supp. 2016) or to a maximum
length of imprisonment of ten years under HRS § 706-660,21 with
the minimum term to be set by the Hawaii paroling authority, see
HRS §§ 706-660(1)(a) (Supp. 2013), 706-669 (2014). Because Act
231 reclassified distribution of methamphetamine in any amount
as a class B felony with the standard monetary penalties, the
fine that may be imposed has also now been capped at $25,000
(instead of $10,000,000). HRS §§ 706-640(1)(b) (2014), 706-641
(2014).
Section 70 of Act 231 “provide[s] that [sections] 54,
55, and 56 shall apply to offenses committed before the
effective date of this Act.” (Emphasis added.) If such an
offense was “[o]riginally charged as a violation of [HRS §] 712-
1240.8, . . . for which the defendant has been convicted on a
plea or verdict and sentenced but for which no final judgment on
21
A defendant may also be subject to repeat offender sentencing by
the court in accordance with HRS § 706-606.5 (Supp. 2016).
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appeal has been entered,” section 70 of Act 231 requires the
appellate court to do either of the following: “(a) Remand the
case for sentencing pursuant to this Act if the judgment is
affirmed on appeal or if the sentence is vacated; or (b) Remand
the case for further proceedings pursuant to this Act if the
judgment is reversed and remanded for further proceedings.”
2016 Sess. Laws Act 231, § 70(4) at 776.
In this case, Bovee committed the offense before the
July 1, 2016 effective date of Act 231 and was charged pursuant
to HRS § 712-1240.8; he was convicted and sentenced by the
circuit court; and the ICA’s judgment on appeal was not entered
until January 6, 2017--after the effective date of Act 231.
Given these facts, and because the ICA affirmed the judgment of
conviction, Bovee is correct that section 70(4)(a) of Act 231
required the ICA to “[r]emand the case for [re]sentencing.”
2016 Sess. Laws Act 231, § 70(4)(a) at 776. The ICA did not do
so, and this contradicts the mandate of section 70 of Act 231.
See 2016 Sess. Laws Act 231, § 70(4)(a) at 776.
However, the requirement under section 70 of Act 231
for an appellate court to remand a case for resentencing is
predicated on the appellate court’s affirmance of the circuit
court’s judgment. Here, the ICA’s affirmance of the judgment of
conviction is erroneous, and the disposition of this case is the
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vacatur of the judgments of the ICA and the circuit court and
remand to the circuit court for a new trial. Thus, there is no
predicate for the application of the remand-for-resentencing
provision of Act 231, section 70(4)(a), and this provision is
not triggered. However, because the judgments of the ICA and
the circuit court are vacated and the case is remanded, section
70(4)(b) of Act 231 requires this court to “[r]emand the case
for further proceedings pursuant to” Act 231. 2016 Sess. Laws
Act 231, § 70(4)(b) at 776.22 Thus, on remand, Bovee may be
retried under HRS § 712-1242(1)(c) (promoting a dangerous drug
in the second degree) and not under the now-repealed HRS § 712-
1240.8 (methamphetamine trafficking in the second degree).
V. CONCLUSION
Because the circuit court’s erroneous instruction on
the offense of second-degree methamphetamine trafficking is not
harmless beyond a reasonable doubt, the ICA’s January 6, 2017
Judgment on Appeal and the judgment of conviction of the circuit
22
Section 70 of Act 231 states that, where an offense was
“[o]riginally charged as a violation of [HRS §] 712-1240.8, . . . for which
the defendant has been convicted on a plea or verdict and sentenced but for
which no final judgment on appeal has been entered,” an appellate court must
“[r]emand the case for further proceedings pursuant to this Act if the
judgment is reversed and remanded for further proceedings.” 2016 Sess. Laws
Act 231, § 70(4)(b) at 776 (emphasis added). We interpret the word “reverse”
to mean “vacate” as the latter is defined by Hawaii Rules of Appellate
Procedure (HRAP) Rule 35(e) (2010) (providing that “the phrase ‘vacate and
remand’ indicates the litigation continues in the court or agency in
accordance with the appellate court’s instruction”).
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court are vacated, and this case is remanded to the circuit
court for further proceedings pursuant to Act 231.
Randall K. Hironaka /s/ Mark E. Recktenwald
for petitioner
/s/ Paula A. Nakayama
Stephen K. Tsushima
for respondent /s/ Sabrina S. McKenna
/s/ Richard W. Pollack
/s/ Michael D. Wilson
34