State v. Slavik. ( 2021 )

FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
27-OCT-2021
07:51 AM
Dkt. 68 OP
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
---o0o---
STATE OF HAWAI#I, Plaintiff-Appellee, v.
NIKOLAUS SLAVIK, Defendant-Appellant
NO. CAAP-XX-XXXXXXX
APPEAL FROM THE CIRCUIT COURT OF THE THIRD CIRCUIT
(CASE NO. 3CPC-XX-XXXXXXX)
OCTOBER 27, 2021
GINOZA, CHIEF JUDGE, LEONARD AND NAKASONE, JJ.
OPINION OF THE COURT BY LEONARD, J.
This case examines, inter alia, the statutory scheme
governing firearms, ammunition, and dangerous weapons in Hawai#i,
in particular the general regulations applicable to firearms and
ammunition. Of particular note, we hold that, in the context of
Hawaii's firearm control statute – specifically, Hawaii Revised
Statutes (HRS) §§ 134-2 (2011) & 134-3 (2011 and Supp. 2019) –
evidence of possession of a firearm, without more, is
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insufficient to support a justifiable inference that a defendant
acquired ownership of the firearm. For the reasons set forth
below, we reverse in part, and vacate in part, and remand this
case for further proceedings.
Defendant-Appellant Nikolaus Slavik (Slavik) appeals
from the April 22, 2019 Judgment of Conviction and Sentence;
Notice of Entry of Judgment (Judgment), entered by the Circuit
Court of the Third Circuit (Circuit Court) following a jury
trial.1 Slavik was convicted of: Carrying or Possessing a
Loaded Firearm on a Public Highway (Possessing Loaded Firearm on
Highway), in violation of Hawaii Revised Statutes (HRS) § 134-
26(a) (2011) (Count 1); Permits to Acquire, in violation of HRS
§ 134-2(a) and § 134-17 (2011) (Count 2); Registration Mandatory,
in violation of HRS § 134-3(b) and § 134-17 (Count 3); and Place
to Keep Ammunition, in violation of HRS § 134-27(a) (2011) (Place
to Keep) (Count 5).2
I. BACKGROUND
On June 20, 2018, Hawai#i County Police Department
(HCPD) Officers Henry Ivy (Officer Ivy) and Denapoli Fui (Officer
Fui) conducted a welfare check on Slavik, who was sleeping in a
car on the side of Mâmalahoa Highway, in the Ka#û District of the
County of Hawai#i. When he approached the car, Officer Ivy
noticed a pistol laying on the passenger seat, underneath
Slavik's right hand. While Officer Fui approached on the driver
1
The Honorable Robert D.S. Kim presided.
2
Counts 4, 6, and 7 were dismissed before trial.
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side, Officer Ivy reached into the open passenger-side window and
removed the gun, placing it on the ground, before they awoke
Slavik.
Officer Ivy identified the gun as "[h]omemade brown
wooden grip single-shot .22 caliber Rimfire pistol without any
identifiable markings, brands or numbers." When the officers ran
Slavik's information, they determined he had no firearm permits
issued and no firearms registered in his name. On a pat-down of
Slavik after his arrest, Officer Fui discovered a single .22
caliber round, along with some nuts, bolts, and coins, in
Slavik's front left pocket.
On July 11, 2018, Slavik was charged by Information and
Complaint (Complaint) with seven counts; he was later tried and
convicted on Counts 1, 2, 3, and 5, which read as follows:
COUNT 1 (C18017297/KU)
On or about the 20th day of June, 2018, in Kau, County
and State of Hawai#i, NIKOLAUS SLAVIK, intentionally and/or
knowingly possessed and/or carried in a vehicle any firearm
loaded with ammunition on a public highway, and NIKOLAUS
SLAVIK was not licensed to carry a pistol or revolver and
ammunition by the Chief of Police for the County of Hawai #i,
pursuant to Section 134-9, thereby committing the offense of
Carrying or Possessing a Loaded Firearm on a Public Highway,
in violation of 134-26(a), Hawai#i Revised Statutes, as
amended.
COUNT 2 (C18017310/KU)
On or about the 20th day of June, 2018, in Kau, County
and State of Hawai#i, NIKOLAUS SLAVIK intentionally,
knowingly or recklessly acquired the ownership of a firearm,
whether usable or unusable, serviceable or unserviceable,
modern or antique, registered under prior law or by a prior
owner or unregistered, either by purchase, gift,
inheritance, bequest, or in any other manner, whether
procured in the State or imported by mail, express, freight,
or otherwise, without first procuring a permit to acquire
the ownership of the firearm from the chief of police of the
county of his place of business or, if there was no place of
business, his place of residence or, if there was neither a
place of business nor residence, his place of sojourn,
thereby committing the offense of Permits to Acquire, in
violation of Sections 134-2(a) and 134-17, Hawai #i Revised
Statutes, as amended.
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COUNT 3 (C18017311/KU)
On or about the 20th day of June, 2018, in Kau, County
and State of Hawai#i, NIKOLAUS SLAVIK who intentionally
and/or knowingly acquired a firearm pursuant to Section 134-
2, Hawai#i Revised Statutes, and such acquisition was by way
of gift, inheritance, bequest, or in any other manner,
whether such firearm is usable or unusable, serviceable or
unserviceable, modern or antique, registered by prior law or
unregistered, NIKOLAUS SLAVIK did intentionally, knowingly,
or recklessly fail to register the firearm in the manner
prescribed by section 134-3 within five days of acquisition,
thereby committing the offense of Registration Mandatory, in
violation of Sections 134-3(b) and 134-17, Hawai #i Revised
Statutes, as amended.
. . . .
COUNT 5 (C18017344/KU)
On or about the 20th day of June, 2018, in Kau, County
and State of Hawai#i, NIKOLAUS SLAVIK, intentionally and/or
knowingly possessed an item knowing it was ammunition, and
he intentionally, knowingly, and/or recklessly was not
licensed to carry a pistol or revolver and ammunition
concealed on his person pursuant to Section 134-9 and, he
was not engaged in hunting and/or target practice as
provided in Section 134-5, and he intentionally, and/or
knowingly failed to confine the ammunition to his place of
business, residence, or sojourn and/or did fail to carry the
ammunition in an enclosed container from the place of
purchase to his place of business, residence, or sojourn, or
between [locations], thereby committing the offense of Place
to Keep Ammunition, in violation of Section 134-27(a),
Hawai#i Revised Statutes, as amended.
On September 4, 2018, Slavik filed a Motion to Dismiss
Counts 1 and 5 of the Information/Complaint Due to Insufficient
Charging Language (Motion to Dismiss). Specifically, Slavik
contended that the Complaint failed to allege that (1) the
firearm and ammunition were operable, and (2) the state of mind
at the time he possessed the object in question, i.e., that when
Slavik possessed the firearm and ammunition, he "believed, knew,
or recklessly disregarded the substantial and unjustifiable risk,
that the object was a prohibited item."
On October 25, 2018, after a hearing on the Motion to
Dismiss, the Circuit Court entered an order denying the motion
and finding that "[t]he charges as reflected in the Information
and Complaint give[] sufficient notice to the Defendant as to the
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essential element of state of mind and the material element of
firearm that he must defend against."
On August 21, 2018, Plaintiff-Appellee State of Hawai#i
(State) filed a Notice of Intent to Use Specified Evidence,
stating that it intended to present evidence relating to prior
investigations and allegations of drug activity and/or Slavik's
prior bad acts. Citing Hawai#i Rules of Evidence (HRE) Rule 404,
the State stated that it intended to use evidence relating to
Slavik's (alleged) conviction for Theft in the Second Degree, in
case number CR15-1-0139K. The deputy prosecuting attorney (DPA)
attested that Slavik had been convicted of that offense on August
8, 2018. However, the record in that case indicates that the
Circuit Court entered a deferred acceptance of guilty plea on
December 1, 2015, which the State petitioned to set aside on June
26, 2018, after Slavik allegedly failed to comply with the terms
of his probation. Court minutes in CR15-1-0139K indicate that a
hearing was held on August 8, 2018, at which time the court
orally granted the Motion to Set Aside. Nevertheless, a judgment
of conviction was not entered in CR15-1-0139K until April 22,
2019, the same day that judgment was entered against Slavik in
this case.
On December 21, 2018, the State filed its Motion in
Limine No. 1 (State's Motion in Limine) seeking an order
permitting the introduction of the theft conviction "in its case-
in-chief for the limited purposes of establishing credibility and
impeachment of the Defendant." On that day, Slavik filed
Defendant's First Motion in Limine (Slavik's Motion in Limine),
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which sought, inter alia, to exclude "[t]estimonial or
documentary evidence relating to [Slavik's] prior criminal record
except as specifically permitted by prior court order[.]"
At the December 28, 2018 hearing on, inter alia, both
of these motions, the Circuit Court granted the State's motion
"if the defendant testifies" and "if proper foundation is set."
Defense counsel then attempted to clarify:
[DEFENSE COUNSEL]: My -- my only question would be is
it simply Mr. Slavik testifying that allows them, or does
Mr. Slavik need to say something that opens the door to the
testimony?
THE COURT: Well, if he testifies it comes into play,
and then they have to establish the proper foundation for
its use.
[DEFENSE COUNSEL]: Okay.
THE COURT: So the answer is yes and yes.
On January 2, 2019, the Court entered Findings of Fact,
Conclusions of Law, and Order Granting State's Motion in Limine
No. 1 (Order Granting State's Motion in Limine), finding and
concluding that: "The State may use the Defendant's prior bad
acts if the Defendant testifies and a proper foundation is laid."
At trial, which was held on January 2 and 3, 2019, the
State called four witnesses, HCPD Officers Ivy and Fui, senior
police records clerk for the HCPD Records and Firearms Section
Arlene Young (Young), and HCPD evidence custodian Gerald
Arguello.
Officer Ivy testified that on the morning of June 20,
2018, he was on duty as a patrolman in the Ka#û District. At
approximately 7:15 a.m., Officer Ivy was informed by another
officer of a phone report of a male party "asleep . . . or
possibly even unconscious or dead" in a vehicle off to the
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shoulder on Mâmalahoa Highway near Aloha Boulevard and "they
wanted me to perform a welfare check on that individual."
Officer Ivy identified Slavik in court.
Officer Ivy testified that he found the reported car
off the shoulder on Mâmalahoa Highway, and he noticed a male
occupant, later identified as Slavik, in the car, before parking
his HCPD vehicle behind it. Slavik was the only occupant in the
car, and he was in the driver's seat in a reclined position with
his eyes closed; Officer Ivy assumed Slavik was asleep. Officer
Ivy testified that the car appeared to be hand-painted a "primer
gray color" and that he was on a raised alert that the car might
be stolen because HCPD considered a car to be possibly stolen
when hand-painted in a way that can disguise its original paint
job, and the car "looked like a typical" example. Officer Ivy
testified that his partner, Officer Fui, was just pulling up as
Officer Ivy was exiting his HCPD vehicle to investigate.
Officer Ivy approached the car on the passenger side,
and Officer Fui approached on the driver's side. Officer Ivy
stated that he first checked Slavik's hands and noticed a pistol
laying on the passenger seat "under" Slavik's right hand.
Officer Ivy then drew his weapon and gestured to Officer Fui to
alert him of the presence of a pistol. Slavik remained asleep.
Officer Ivy testified that the passenger window was down and he
used one hand to remove the pistol from the car and place it on
the ground. Officer Ivy testified that the officers then woke
Slavik, informed him that he was being placed under arrest for
suspicion of having a loaded gun in his possession, and Slavik
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cooperated with the officers. Officer Ivy described the
appearance of the pistol as loaded because it was "a[n]
old-fashioned style pistol that you can actually visually see if
there's a round chambered." Officer Ivy testified that the
pistol had no markings, distinguishing make and/or model, or
serial number, and identified State's exhibit "20" as the pistol
recovered from the passenger seat in the car. Officer Ivy
testified that Slavik was then patted down and transported to an
HCPD station.
Officer Fui identified Slavik and testified that he was
on duty on June 20, 2018, when he encountered Slavik at the scene
of a welfare check along a highway. On arriving at the scene,
Officer Fui noticed that the car "looked beat up." Officer Fui
testified to approaching the car from the opposite side from
Officer Ivy who was on the passenger side, that Officer Ivy
signaled the presence of a weapon, and that Slavik did not wake
while Officer Ivy removed what appeared to be a weapon from the
passenger side of the car. The officers then woke Slavik, who
"kinda just kinda seemed, uh, startled like, 'What's going on?'
like, you know, when you wake up." Officer Fui testified that
Officer Ivy informed Slavik that he was being placed under
arrest; Slavik complied but seemed confused. Officer Fui
testified that, following a brief pat-down, Slavik was
transported to the Nâ#âlehu HCPD station. At the Nâ#âlehu
station, a more-thorough "inventory search" was performed on
Slavik during which, inter alia, a .22 caliber round of
ammunition was found. Officer Fui testified that Officer Ivy had
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not indicated to him at the scene that the car Slavik was found
in might have been stolen, and Officer Fui first testified that
he had not done an ownership check on the car nor contacted the
owner. After refreshing his memory from his police report,
Officer Fui then testified that he had in fact spoken with the
actual owner of the car, although he did not recall whether the
owner wanted to press any charges for a stolen vehicle.
Young testified about the processes for obtaining a
firearm permit and for registering a handgun. She explained that
prior to registering a firearm, an applicant must have a permit.
The applicant then must bring the unloaded firearm for an
inspection, which would include a verification of the item's
make, model, serial number, caliber, and barrel length. Young
testified that it would be rare that the make of the firearm is
not on the firearm. Firearms produced without a serial number
would have a serial number engraved on it. She stated that she
would check the County of Hawaii's computer systems, and then
statewide, for a permit to acquire before she would register the
firearm.
Young testified that she did a statewide check for
records on Slavik's name, beginning with the county's records,
looking for a permit application and existing registrations. She
testified that she found no record that Slavik had a permit to
acquire a firearm nor any firearm registered to him.
After the close of the State's case in chief, Slavik
moved for a judgment of acquittal. Defense counsel argued that:
(1) Slavik was in a gravel area adjacent to the road, and not on
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the shoulder of the road or the road itself; (2) the State failed
to prove the item recovered was an operable firearm, as there was
a test done to see if the "firearm" would ignite a primer and
there was no evidence showing that it could fire a bullet; and
(3) the State did not prove possession of the firearm, where the
testimony was that Slavik was found asleep with his hand on top
of it. The Circuit Court denied the defense motion.
After a colloquy, Slavik waived his right to testify
and the defense rested its case.
The Circuit Court instructed the jury, including
various instructions offered by the State, over Slavik's
objection that the defense's proposed instructions were more
clear. On Count 1, the court instructed the jury:
In Charge 1, [Slavik] is charged with the offense of
Carrying or Possessing a Loaded Firearm on a Public Highway.
A person commits the offense of Carrying or Possessing
a Loaded Firearm on a Public Highway if while on a public
highway, he had in his possession and/or carried in a
vehicle a firearm loaded with ammunition, without a license
to carry.
There are three (3) material elements for the offense
of Carrying or Possessing a Loaded Firearm and four (4)
additional items, each of which the Prosecution must prove
beyond a reasonable doubt.
These three (3) material elements are:
1. (conduct): The Defendant had in his possession
or carried in a vehicle a firearm, a pistol,
that was loaded with ammunition;
2. (conduct): The Defendant was not licensed by
the Chief of Police to carry a firearm, pistol;
3. (attendant circumstances): That the Defendant
was on a public highway;
The Prosecution must also prove beyond a reasonable
doubt:
4. (state of mind): That Defendant acted
intentionally or knowingly with regard to
material element 1.; and
5. (state of mind): That Defendant acted
intentionally, knowingly, or recklessly with
regard to any material elements 2. through 4.;
and
6. (date): That this offense took place on or
about June 20, 2018; the exact date is not
required; and
7. (jurisdiction and venue): That this offense
took place in the County and State of Hawai #i.
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If you find that the Prosecution has proven beyond a
reasonable doubt items 1. through 7. for the offense of
Carrying or Possessing a Loaded Firearm on a Public Highway,
then you must return a verdict of Guilty for the offense of
Carrying or Possessing a Loaded Firearm on a Public Highway.
If the Prosecution has not done so, you must find the
Defendant Not Guilty for the offense of Carrying or
Possessing a Loaded Firearm on a Public Highway.
The jury was provided the following instruction on
Count 5:3
In Charge 4, [Slavik] is charged with the offense of
Place to Keep Ammunition.
A person commits the offense of Place to Keep
Ammunition if, except as provided in Sections 134-5 and
134-9 of the Hawai#i Revised Statutes, he intentionally,
knowingly, or recklessly possesses ammunition and did fail
to confine the ammunition to his place of business,
residence, or sojourn and/or did fail to confine the
ammunition in an enclosed container when carried from his
place of business, residence, or sojourn.
There are five (5) material elements for the offense
of Place to Keep Ammunition and three (3) additional items,
each of which the prosecution must prove beyond a reasonable
doubt.
These five (5) material elements are:
1. (conduct): The Defendant possessed .22 caliber
ammunition; and
2. (attendant circumstances): That the Defendant
was not in compliance with Section 134-5 of the
Hawai#i Revised Statutes which states that any
person 16 years or over may carry and use any
lawfully acquired rifle or shotgun and suitable
ammunition while actually engaged in hunting or
target shooting or while going to and from the
place of hunting or target shooting; provided
that the person has procured a hunting license
under chapter 183D, Part II of the Hawai#i
Revised Statutes. A permit is not required when
any lawfully acquired firearm is lent to a
person including a minor, upon a target range or
similar facility for purposes of target
shooting, provided that the period of the loan
does not exceed the time in which the person
actually engages in target shooting upon the
premises; and
3. (attendant circumstances): The Defendant was
not in compliance with Section 134-9 of the
Hawai#i Revised Statutes which states that in
exceptional cases, when an applicant shows
reasonable fear injury [sic] to the applicant's
person or property, the chief of police of the
appropriate county may grant a license to an
applicant who is a citizen of the United States
of the age of 21 years or more to carry a pistol
or revolver and ammunition therefore concealed
3
As noted above, Counts 4, 6, and 7 were dismissed before trial.
The instruction labeled this count (Count 5) as Charge 4 to remove references
to the counts previously dismissed.
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on the person within the county where the
license is granted. Where the urgency or need
has been sufficiently indicated, the respective
chief of police may grant an applicant of good
moral character who is a citizen of the United
States of the age of 21 years or more, is
engaged in the protection of life and property,
and is not prohibited under section 134-7 from
the ownership or possession of a firearm, a
license to carry a pistol or revolver and
ammunition therefore unconcealed on the person
within the county where the license is granted;
and
4. (conduct): The Defendant did not confine the
.22 caliber ammunition to his place of business,
residence, or sojourn; and
5. (conduct): The Defendant did not carry the .22
caliber ammunition in an enclosed container
from:
a. the place of purchase to his place of
business, residence, or sojourn, or
b. between these places upon change of place
of business, residence, or sojourn, or
c. between these places and any of the
following:
i. a place of repair,
ii. a target range,
iii. a licensed dealer's place of
business,
iv. an organized, scheduled firearms
show or exhibit,
v. a place of formal hunter or firearm
use, training, or instruction, or
vi. a police station.
The prosecution must also prove beyond a reasonable
doubt:
6. (state of mind): The Defendant acted
intentionally, knowingly, or recklessly with
regard to the material elements 1. through 5.;
and
7. (date): That this offense took place on or
about June 20, 2018, the exact date is not
required; and
8. (jurisdiction and venue): That this offense
took place in Kau, County and State of Hawai #i.
If you find that the Prosecution has proven beyond a
reasonable doubt items 1. through 8. for the offense of
Place to Keep Ammunition, then you must return a verdict of
Guilty for the offense of Place to Keep Ammunition.
If the Prosecution has not done so, you must find the
Defendant Not Guilty for the offense of Place to Keep
Ammunition.
The jury returned a guilty verdict on Counts 1, 2, 3,
and 5. Slavik was sentenced on April 22, 2019, to ten years in
prison on Count 1, one year in prison on Counts 2 and 5, and
thirty (30) days on Count 3, to run concurrently with each other
and with the sentence imposed in a separate case. He was also
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ordered to pay $190 in fees to the Crime Victims Compensation
Fund. Slavik timely filed a notice of appeal.
II. POINTS OF ERROR
Slavik raises four points of error on appeal,
contending that the Circuit Court erred in: (1) denying Slavik's
Motion to Dismiss for insufficient charging language regarding
the required states of mind for Counts 1 and 5; (2) granting the
State's Notice of Intent and the State's Motion in Limine, and
ruling that if Slavik testified, the State could introduce his
Theft conviction and drug use to impeach his credibility; (3)
denying Slavik's motion for judgment of acquittal as to Counts 2
and 3 because the State presented insufficient evidence that
Slavik owned the firearm; and (4) refusing Slavik's proposed jury
instructions concerning elements, for all counts, plainly erred
in giving a general-law-pertaining-to-elements instruction, and
further erred in presenting to the jury elements instructions
which were prejudicially insufficient, confusing, misleading, and
wrong.
III. APPLICABLE STANDARDS OF REVIEW
"Whether a charge sets forth all the essential elements
of a charged offense is a question of law, which we review under
the de novo, or right/wrong, standard." State v. Mita, 124
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Hawai#i 385, 389, 245 P.3d 458, 462 (2010) (citation, internal
quotation marks, brackets, and ellipses omitted).
We review a circuit court's grant or denial of a motion
in limine for an abuse of discretion. State v. Mark, 120 Hawai#i
499, 514, 210 P.3d 22, 37 (App. 2009) (citing State v. Kealoha,
95 Hawai#i 365, 379, 22 P.3d 1012, 1026 (App. 2000)). "However,
when the trial court's order granting a motion in limine is an
evidentiary decision based upon a decision that can 'yield only
one correct result,' the standard of review is the right/wrong
standard." Id. at 514-15, 210 P.3d at 37-38 (quoting Walsh v.
Chan, 80 Hawai#i 212, 215, 908 P.2d 1198, 1201 (1995)); Ass'n of
Apt. Owners of Wailea Elua v. Wailea Resort Co., Ltd., 100
Hawai#i 97, 110, 58 P.3d 608, 621 (2002) (decisions regarding
relevance are reviewed under the right/wrong standard).
When reviewing a . . . motion for judgment of
acquittal, we employ the same standard that a trial court
applies to such a motion, namely, whether, upon the evidence
viewed in the light most favorable to the prosecution and in
full recognition of the province of the trier of fact, the
evidence is sufficient to support a prima facie case so that
a reasonable mind might fairly conclude guilt beyond a
reasonable doubt. Sufficient evidence to support a prima
facie case requires substantial evidence as to every
material element of the offense charged. 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. Under such a review, we give full
play to the right of the fact finder to determine
credibility, weigh the evidence, and draw justifiable
inferences of fact.
State v. Jenkins, 93 Hawai#i 87, 99, 997 P.2d 13, 25 (2000)
(quoting State v. Timoteo, 87 Hawai#i 108, 112–13, 952 P.2d 865,
869–70 (1997)) (format altered).
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When 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, 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. Error is not to be viewed in isolation and
considered purely in the abstract. It must be examined in
the light of the entire proceedings and given the effect
which the whole record shows it to be entitled. In that
context, the real question becomes whether there is a
reasonable possibility that error might have contributed to
conviction. 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.
Stanley v. State, 148 Hawai#i 489, 500-01, 479 P.3d 107, 118–19
(2021) (citations omitted; format altered).
IV. DISCUSSION
A. Sufficiency of the Charges in Counts 1 & 5
Slavik argues that the Circuit Court erred in denying
the Motion to Dismiss because the Complaint did not contain the
state of mind required to establish criminal culpability for
Possessing Loaded Firearm on Highway and Place to Keep.
"The sufficiency of a charge 'implicates an accused's
rights under the Hawai#i Constitution, article I, sections 5, 10
and 14.'" State v. Baker, 146 Hawai#i 299, 305, 463 P.3d 956,
962 (2020) (quoting State v. Nesmith, 127 Hawai#i 48, 52, 276
P.3d 617, 621 (2012) (Nesmith II)). A conviction based upon a
defective charge "cannot be sustained, for that would constitute
a denial of due process." State v. Wheeler, 121 Hawai#i 383,
391, 219 P.3d 1170, 1178 (2009) (quoting State v. Jendrusch, 58
Haw. 279, 281, 567 P.2d 1242, 1244 (1977)). "When a criminal
defendant challenges the sufficiency of a charge in a timely
manner, an appellate court will uphold that charge if: (1) it
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contains the elements of the offense; and (2) it sufficiently
apprises the defendant of what the defendant must be prepared to
meet." State v. Kauhane, 145 Hawai#i 362, 369–70, 452 P.3d 359,
366–67 (2019) (citing Mita, 124 Hawai#i at 390, 245 P.3d at 463and Jendrusch, 58 Haw. at 283, 567 P.2d at 1245). "In other
words, '[t]he relevant inquiry . . . is whether or not the charge
[has] provided the accused with fair notice of the [offense's]
essential elements.'" Id. (quoting Mita, 124 Hawai#i at 390, 245
P.3d at 463).
"In general, '[w]here the statute sets forth with
reasonable clarity all essential elements of the crime intended
to be punished, and fully defines the offense in unmistakable
terms readily comprehensible to persons of common understanding,
a charge drawn in the language of the statute is sufficient.'"
Wheeler, 121 Hawai#i at 393, 219 P.3d at 1180 (quoting Jendrusch,
58 Haw. at 282, 567 P.2d at 1245); see Hawai#i Rules of Penal
Procedure (HRPP) Rules 5 and 7 (2007). But in some cases, "a
charge tracking the language of the statute" inadequately
describes the offense and thus violates the defendant's
constitutional rights. Baker, 146 Hawai#i at 306, 463 P.3d at
963 (citing Nesmith II, 127 Hawai#i at 53, 276 P.3d at 622).
The elements of an offense, as defined by HRS § 702-205
are (1) conduct, (2) attendant circumstances, and (3) results of
conduct. Nesmith II, 127 Hawai#i at 53, 276 P.3d at 622.
"[M]ens rea is not an 'element of an offense' under HRS §
702–205." Id. at 55, 276 P.3d at 624 (citing State v. Klinge, 92
Hawai#i 577, 584 n.3, 994 P.2d 509, 516 n.3 (2000)).
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Nevertheless, mens rea is an "essential fact" that must be pled
under HRPP Rule 7(d). See id. at 55, 276 P.3d at 624. "The
state of mind must be included in the charge 'to alert the
defendant of precisely what the defendant needs to defend against
to avoid a conviction.'" Baker, 146 Hawai#i at 306, 463 P.3d at
963 (brackets omitted) (quoting Nesmith II, 127 Hawai#i at 56,
276 P.3d at 625). Failure to include the required state of mind
in the charge requires the charge to be dismissed without
prejudice. State v. Gonzalez, 128 Hawai#i 314, 324, 288 P.3d
788, 798 (2012) (citing Nesmith II, 127 Hawai#i at 54, 276 P.3d
at 623); see also State v. Maharaj, 131 Hawai#i 215, 219, 317
P.3d 659, 663 (2013).
The statutes at issue in Counts 1 and 5, HRS § 134-264
and HRS § 134-27,5 do not describe a culpable state of mind. In
4
HRS § 134-26 provides:
§ 134-26 Carrying or possessing a loaded firearm on a
public highway; penalty. (a) It shall be unlawful for any
person on any public highway to carry on the person, or to
have in the person's possession, or to carry in a vehicle
any firearm loaded with ammunition; provided that this
section shall not apply to any person who has in the
person's possession or carries a pistol or revolver in
accordance with a license issued as provided in section
134-9.
(b) Any vehicle used in the commission of an offense
under this section shall be forfeited to the State, subject
to the notice and hearing requirements of chapter 712A.
(c) Any person violating this section shall be guilty
of a class B felony.
5
HRS § 134-27 provides:
§ 134-27 Place to keep ammunition; penalty. (a) Except as
provided in sections 134-5 [Possession by licensed hunters and
minors] and 134-9 [Licenses to carry], all ammunition shall be
confined to the possessor's place of business, residence, or
sojourn; provided that it shall be lawful to carry ammunition in
an enclosed container from the place of purchase to the
purchaser's place of business, residence, or sojourn, or between
these places upon change of place of business, residence, or
sojourn, or between these places and the following:
(continued...)
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most instances, the default states of mind of intentionally,
knowingly, or recklessly apply to each element of the offense, if
the applicable statute is silent. See HRS § 702–204 (2014);
State v. Nesmith, 125 Hawai#i 232, 235, 257 P.3d 245, 248 (App.
2011) (Nesmith I), (citing State v. Bayly, 118 Hawai#i 1, 10, 185
P.3d 186, 195 (2008)), aff'd, Nesmith II, 127 Hawai#i 48, 276
P.3d 617. In limited instances, the default states of mind
listed in HRS § 702-204 (2014) do not apply to crimes defined
outside the Hawai#i Penal Code (HPC), specifically, where "a
legislative purpose to impose absolute liability for such offense
or with respect to any element thereof plainly appears." HRS
§ 702-212(2) (2014); see also Gonzalez, 128 Hawai#i at 321, 288
P.3d at 795; State v. Holbron, 78 Hawai#i 422, 425, 895 P.2d 173,
176 (App. 1995).
Although HRS §§ 134-26 and 134-27 are not part of the
HPC, nothing in the statutory language nor legislative history
clearly indicates that the legislature intended for these crimes
to be absolute liability offenses. See, e.g., S. Stand. Comm.
Rep. No. 3177, in 2006 Senate Journal, at 1542.
5
(...continued)
(1) A place of repair;
(2) A target range;
(3) A licensed dealer's place of business;
(4) An organized, scheduled firearms show or exhibit;
(5) A place of formal hunter or firearm use training or
instruction; or
(6) A police station.
"Enclosed container" means a rigidly constructed receptacle,
or a commercially manufactured gun case, or the equivalent thereof
that completely encloses the ammunition.
(b) Any person violating this section shall be guilty
of a misdemeanor.
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Here, the Complaint alleged in Count 1 that Slavik
violated HRS § 134-26 because he "intentionally and/or knowingly
possessed and/or carried in a vehicle any firearm loaded with
ammunition on a public highway" without a license to carry, and
in Count 5 that Slavik violated HRS § 134-27 because he
"intentionally and/or knowingly possessed an item knowing it was
ammunition, and he intentionally, knowingly, and/or recklessly"
was not licensed to carry a pistol or revolver and ammunition
concealed on his person and was not engaged in one of the
statutorily permitted activities. Accordingly, in both offenses,
a conduct element is possession.6 The HPC provides that
possession is "a voluntary act if the defendant knowingly
procured or received the thing possessed or if the defendant was
aware of the defendant's control of it for a sufficient period to
have been able to terminate the defendant's possession." HRS
§ 702-202 (2014).
Slavik points to Jenkins, in which the Hawai#i Supreme
Court examined the definition of "possession" found in HRS § 702-
202, and reasoned that "in order for 'possession' to be a
'voluntary act,' some level of knowledge is required" and thus,
"an individual may be found to have 'possessed' a thing only if
he or she did so 'knowingly' or 'intentionally.'" Jenkins, 93
Hawai#i at 110, 997 P.2d at 36. "Correlatively, an individual
may not be found to have voluntarily 'possessed' a thing if he or
she was merely 'reckless' in doing so." Id. Thus, the state of
6
It appears that "carried in a vehicle" is an alternative conduct
element, but it is not at issue in this appeal and, therefore, we do not
address it.
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mind required by the term "possession" was knowingly or
intentionally rather than the default "intentionally, knowingly,
or recklessly" provided by HRS § 702–204. Id. The supreme court
emphasized, however, that section 702-202 "establishes the
scienter requisite only for the possession of a thing itself."
Id. at 111, 997 P.2d at 37. The court held:
[F]or the purposes of HRS § 134–7(b), [7] "possession"
must be analyzed employing a two-pronged analysis: (1) the
voluntary act of "possession" of an object itself is, by way
of HRS § 702–202, satisfied where an individual acts
knowingly with respect to his or her conduct; and (2) the
requisite state of mind with respect to the attendant
circumstances — i.e., the particular qualities of the object
that make it illegal to possess it — is, by way of HRS
§ 702–204, satisfied by a reckless state of mind. Thus, as
applied, to prove the "voluntary act" of possession, the
prosecution must first adduce evidence that the defendant
knowingly procured or received an object, or was aware of
his or her control of that object for a sufficient period to
have terminated possession. See HRS § 702–202. Second, to
prove the requisite state of mind regarding the particular
qualities of the object, the prosecution must, at the very
least, adduce evidence that the defendant possessed the
object in reckless disregard of the substantial and
unjustifiable risk that it was a firearm. See HRS
§ 702–204.
Id. (underlined emphasis added).
Here, in Count 1, in relevant part the State charged
that Slavik "intentionally and/or knowingly possessed and/or
carried in a vehicle any firearm loaded with ammunition on a
public highway," but did not allege any state of mind as to
Slavik's scienter regarding the qualities of the object as a
firearm. Count 1 alleges a violation of HRS § 134-26(a).
Similar to the relevant statute in Jenkins,8 HRS § 134-26(a) is
silent regarding the state of mind required for conviction. 93
7
HRS § 134-7 (2011), entitled "Ownership or possession prohibited,
when," describes various other felony and misdemeanor violations stemming from
the ownership or possession of a firearm or ammunition.
8
In Jenkins, the relevant charge asserted a violation of HRS § 134-
7(b) (1993 and Supp. 1997). 93 Hawai#i at 109, 997 P.2d at 35.
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Hawai#i at 109, 997 P.2d at 35. As stated in Jenkins, regarding
the second prong to establish possession, "to prove the requisite
state of mind regarding the particular qualities of the object,
the prosecution must, at the very least, adduce evidence that the
defendant possessed the object in reckless disregard of the
substantial and unjustifiable risk that it was a firearm. See
HRS § 702–204." Id. at 111, 997 P.2d at 37 (emphasis added).
Thus, for this second prong in Jenkins, HRS § 702-2049 applies
and the State must have alleged that Slavik possessed the object
with an intentional, knowing, or reckless state of mind as to the
particular qualities that make it illegal to possess it, i.e.,
that it was a firearm. Id.; HRS § 702–204. Because the State
failed to allege any state of mind for Slavik's scienter
regarding the qualities of the object as a firearm, Count 1 is
defective.
Slavik asserted in the Circuit Court that Counts 1 and
5 were deficient for failing to allege the proper state of mind
that the subject items were a prohibited item. Thus, he timely
raised this issue in the trial court. Here, Count 1 failed to
properly allege the second prong in the Jenkins analysis
applicable to the attendant circumstance of the charge and thus
failed to provide Slavik with fair notice of the charge against
him in Count 1. See Wheeler, 121 Hawai#i at 393, 219 P.3d 1180.
"A charge that fails to charge a requisite state of mind cannot
9
HRS § 702-204 provides in relevant part: "When the state of mind
required to establish an element of an offense is not specified by the law,
that element is established if, with respect thereto, a person acts
intentionally, knowingly, or recklessly." (Emphasis added).
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be construed reasonably to state an offense and thus the charge
is dismissed without prejudice because it violates due process."
State v. Apollonio, 130 Hawai#i 353, 359, 311 P.3d 676, 682
(2013); Nesmith II, 127 Hawai#i at 56, 276 P.3d at 625; Maharaj,
131 Hawai#i at 219, 317 P.3d at 663; State v. Armitage, 132
Hawai#i 36, 51, 319 P.3d 1044, 1059 (2014); State v. Souleng, 134
Hawai#i 465, 469, 342 P.3d 884, 888 (App. 2015). Thus, Slavik's
conviction on Count 1 must be vacated and dismissed without
prejudice.
In Count 5, the State charged that Slavik
"intentionally and/or knowingly possessed an item knowing it was
ammunition, and he intentionally, knowingly, and/or recklessly"
was not licensed to carry a pistol or revolver and ammunition
concealed on his person "and he intentionally, and/or knowingly
failed to confine the ammunition to" allowed places "and/or did
fail [no state of mind specified] to carry the ammunition in an
enclosed container[.]" (Underline emphasis added, bolded and
bracketed language added). Count 5 alleges a violation of HRS
§ 134-27(a), which does not specify a state of mind required for
conviction. Thus, similar to the subject charge in Jenkins, HRS
§ 702-204 provides the applicable state of mind for the second
prong in establishing possession. 93 Hawai#i at 111, 997 P.2d at
37.
We disagree with Slavik's contention that Count 5 is
defective under Jenkins for only alleging a "knowing" state of
mind as to the particular qualities that make the item illegal to
possess it, i.e., that it was ammunition. Because HRS § 702-204
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provides the applicable state of mind for this attendant
circumstance element, 93 Hawai#i at 111, 997 P.2d at 37, "at the
very least" a reckless state of mind applies to the second prong
in Jenkins for establishing possession. Id. (emphasis added).
However, under HRS § 702-204, an intentional or knowing state of
mind could also establish the second prong in Jenkins. Count 5
alleges Slavik had a knowing state of mind regarding the
qualities of the item that made it illegal to possess it, i.e.,
that it was ammunition. This is sufficient for the second prong
under Jenkins.
We agree with Slavik, however, that Count 5 is
defective because it completely fails to assert any state of mind
regarding his failure to carry the ammunition in an enclosed
container. Slavik did not raise this contention in the Circuit
Court, and instead raised it for the first time in his appellate
opening brief. Thus, we must analyze this argument under the
Motta/Wells post-conviction liberal construction rule. See State
v. Tominiko, 126 Hawai#i 68, 266 P.3d 1122 (2011).
Under the Motta/Wells rule, charges challenged for the first
time on appeal are presumed valid. Accordingly, we will
only vacate a defendant's conviction under this standard if
the defendant can show: (1) that the charge cannot
reasonably be construed to allege a crime; or (2) that the
defendant was prejudiced.
State v. Kauhane, 145 Hawai#i 362, 370, 452 P.3d 359, 367 (2019).
In Apollonio, the Hawai#i Supreme Court held that, even
where the defendant raised a challenge to a charge for the first
time on appeal and thus the charge was construed under the
liberal standard, because the charge failed to assert a requisite
state of mind it could not be "reasonably construed to state an
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offense." 130 Hawai#i at 358, 311 P.3d at 681. Thus, the
supreme court held that the charge must be dismissed without
prejudice. Id. (citing Nesmith II, 127 Hawai#i at 56, 276 P.3d
at 625 and State v. Elliott, 77 Hawai#i 309, 884 P.2d 372(1994)). Given the applicable case law, Count 5 must also be
dismissed without prejudice.
B. State's Motion in Limine
Slavik contends that the Circuit Court erred in the
Order Granting State's Motion in Limine, when it found and
concluded that: "The State may use the Defendant's prior bad
acts if the Defendant testifies and a proper foundation is laid."
Slavik also contends that the Circuit Court plainly erred in
ruling that the State could impeach him with his "theft
conviction" because, at the time the DPA averred in conjunction
with the State's Notice of Intent that Slavik had been convicted
of theft, although the Circuit Court had set aside its earlier
deferred acceptance of a guilty plea in the theft case, it had
not yet entered a judgment of conviction.
As the Circuit Court's order does not specify what it
is allowing the State to use, we consider the Notice of Intent
and the State's Motion in Limine. The August 21, 2018 Notice of
Intent merely states that "the State intends to present evidence
relating to prior investigations and allegations of drug activity
and/or [Slavik's] prior bad acts." The DPA's attached
declaration states: "I have reviewed the case-file and reports
pertaining to the following incident that has been provided to
defense counsel: On August 8, 2018, Defendant was convicted for
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Theft in the Second Degree, the disposition of which is
documented in case number CR15-1-0139K." The declaration
continues:
At trial the State may seek to introduce evidence from
this incident as permitted by Rule 404 of the Hawai #i Rules
of Evidence; the intended purposes include, but are not
limited to: motive, opportunity, intent, preparation,
knowledge, identity, state of mind, negating any argument of
mistake, addressing self-defense claims, and truth and
veracity of the Defendant.
The State's Motion in Limine provided little more,
saying only that it sought an order permitting the introduction
of "evidence pertaining to the prior bad acts of [Slavik]. The
prior bad acts which the State seeks to introduce in its case in
chief were noticed" in the State's Notice of Intent. The DPA's
declaration again incorrectly states Slavik was convicted of
Theft in the Second Degree on August 8, 2018, in CR15-1-0139K,
and "[t]he State seeks to introduce at trial evidence through
testimony of officers of the Defendant's previous actions as the
credibility and impeachment of the Defendant in the above-
captioned case."
The State's Motion in Limine relied on HRE Rules 40310
and 404(b),11 and the State argued that, although Slavik had not
10
HRE Rule 403 provides:
Rule 403 Exclusion of relevant evidence on grounds of
prejudice, confusion, or waste of time. Although relevant,
evidence may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the jury, or by
considerations of undue delay, waste of time, or needless
presentation of cumulative evidence.
11
HRE Rule 404 provides, in pertinent part:
Rule 404 Character evidence not admissible to prove
conduct; exceptions; other crimes. (a) Character evidence
generally. Evidence of a person's character or a trait of a
(continued...)
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been sentenced, the conviction for theft is directly related to
his credibility and honesty. This argument is without merit; a
judgment for conviction is not final, and does not constitute a
conviction, unless it includes the final adjudication and the
final sentence. See generally State v. Kilborn, 109 Hawai#i 435,
442, 127 P.3d 95, 102 (App. 2005).
Moreover, HRE Rule 609 requires conviction of a crime
of dishonesty. This rule provides, in relevant part:
Rule 609. Impeachment by evidence of conviction of
crime. (a) General rule. For the purpose of attacking the
credibility of a witness, evidence that the witness has been
convicted of a crime is inadmissible except when the crime
is one involving dishonesty. However, in a criminal case
where the defendant takes the stand, the defendant shall not
be questioned or evidence introduced as to whether the
defendant has been convicted of a crime, for the sole
purpose of attacking credibility, unless the defendant has
oneself introduced testimony for the purpose of establishing
the defendant's credibility as a witness, in which case the
defendant shall be treated as any other witness as provided
in this rule.
HRE Rule 609(a).
The supreme court has held that "a theft offense is
not, per se, a 'crime of dishonesty' such that it is admissible
11
(...continued)
person's character is not admissible for the purpose of
proving action in conformity therewith on a particular
occasion, except:
. . . .
(b) Other crimes, wrongs, or acts. Evidence of other
crimes, wrongs, or acts is not admissible to prove the
character of a person in order to show action in conformity
therewith. It may, however, be admissible where such
evidence is probative of another fact that is of consequence
to the determination of the action, such as proof of motive,
opportunity, intent, preparation, plan, knowledge, identity,
modus operandi, or absence of mistake or accident. In
criminal cases, the proponent of evidence to be offered
under this subsection shall provide reasonable notice in
advance of trial, or during trial if the court excuses
pretrial notice on good cause shown, of the date, location,
and general nature of any such evidence it intends to
introduce at trial.
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to impeach a criminal defendant's credibility." State v.
Pacheco, 96 Hawai#i 83, 100, 26 P.3d 572, 589 (2001). "[I]t is
incumbent upon the prosecution to establish, and upon the trial
court expressly to find, that a defendant's prior conviction,
which has been proffered to impeach the defendant's testimony, is
of a 'crime of dishonesty,' such that it is relevant to and
probative of the defendant's veracity as a witness." Id. at 99,26 P.3d at 588. Thus, for a prior theft offense to be
admissible, the State must demonstrate that it was committed
"under circumstances that, by their very nature, render his or
her prior conviction of the offense relevant to and probative of
his or her veracity as a witness." Id. at 100, 26 P.3d at 589.
Here, the State offered no evidence, and the record is
otherwise silent, with respect to the circumstances under which
Slavik committed the theft offense prosecuted in CR15-1-0139K.
Consequently, even assuming, arguendo, there was a conviction,
the State failed to establish that Slavik's prior theft offense
involved conduct relevant to or probative of Slavik's veracity as
a witness. Absent the requisite showing, Slavik's prior
conviction of a theft offense could not be deemed a "crime of
dishonesty" and was therefore inadmissible to impeach his
credibility as a witness. Id.For the reasons stated, we conclude that the Circuit
Court erred in granting the State's Motion in Limine.
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C. Slavik's Motion for Judgment of Acquittal
as to Counts 2 and 3
Slavik argues that the Circuit Court erred in denying
his motion for judgment of acquittal as to Count 2 (Permits to
Acquire; HRS § 134-2(a)) and Count 3 (Registration Mandatory; HRS
§ 134-3(b)) because the State presented insufficient evidence
that Slavik owned the firearm. As set forth above, Counts 2 and
3 charged:
COUNT 2 (C18017310/KU)
On or about the 20th day of June, 2018, in Kau, County
and State of Hawai#i, NIKOLAUS SLAVIK intentionally,
knowingly or recklessly acquired the ownership of a firearm,
whether usable or unusable, serviceable or unserviceable,
modern or antique, registered under prior law or by a prior
owner or unregistered, either by purchase, gift,
inheritance, bequest, or in any other manner, whether
procured in the State or imported by mail, express, freight,
or otherwise, without first procuring a permit to acquire
the ownership of the firearm from the chief of police of the
county of his place of business or, if there was no place of
business, his place of residence or, if there was neither a
place of business nor residence, his place of sojourn,
thereby committing the offense of Permits to Acquire, in
violation of Sections 134-2(a) and 134-17, Hawai #i Revised
Statutes, as amended.
COUNT 3 (C18017311/KU)
On or about the 20th day of June, 2018, in Kau, County
and State of Hawai#i, NIKOLAUS SLAVIK who intentionally
and/or knowingly acquired a firearm pursuant to Section 134-
2, Hawai#i Revised Statutes, and such acquisition was by way
of gift, inheritance, bequest, or in any other manner,
whether such firearm is usable or unusable, serviceable or
unserviceable, modern or antique, registered by prior law or
unregistered, NIKOLAUS SLAVIK did intentionally, knowingly,
or recklessly fail to register the firearm in the manner
prescribed by section 134-3 within five days of acquisition,
thereby committing the offense of Registration Mandatory, in
violation of Sections 134-3(b) and 134-17, Hawai #i Revised
Statutes, as amended.
HRS chapter 134 governs firearms, ammunition, and
dangerous weapons in Hawai#i, with part I of the chapter setting
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forth the general regulations applicable to firearms and
ammunition.12 In the simplest possible terms, HRS § 134-2(a)
12
The current HRS chapter 134, part I, was first enacted in 1988
with Act 275, "A Bill for an Act Relating to Firearms and Ammunition," which
was effectively a revision of the prior chapter 134. See 1988 Haw. Sess. Laws
Act 275, § 1 at 510 ("The purpose of this Act is to clarify and improve the
existing language of the Firearms, Ammunition and Dangerous Weapons Act,
Chapter 134, part I, Hawaii Revised Statutes, General Regulations."), § 4 at
517, and § 6 at 517.
The earliest version of what would become HRS § 134-2 was enacted
in 1933 and provided, inter alia:
No person residing or doing business or temporarily
sojourning within the Territory shall take possession of any
firearm of any description . . . either through sale, gift,
loan, bequest, or otherwise . . . until he shall first have
procured from the chief of police . . . a permit to acquire
as prescribed herein.
1933 Haw. Sess. Laws, Special Session, Act 26, § 4 at 37 (emphasis added).
"The purpose of the Bill is to give the law enforcing agencies of the
Territory a better means of controlling the sale, transfer and possession of
firearms[.]" H. Stand. Comm. Rep. No. 89, in 1933 House Journal, Special
Session, at 427.
By 1935, this law was codified as Revised Laws of Hawai #i (RLH)
§ 2542 and provided, in pertinent part:
Sec. 2542. Registration by transfer; permits to
acquire; penalty. No person shall take possession of any
firearms of any description . . . either through sale, gift,
loan, bequest, or otherwise, . . . until he shall first have
procured from the chief of police . . . a permit to acquire
as prescribed herein.
(Emphasis added).
Ten years later, RLH § 7183 (1945) read, in part:
Sec. 7183. Registration on transfer; permits to
acquire; penalty. No person shall take possession of any
firearms of any description . . . either through sale, gift,
loan, bequest, or otherwise . . . until he shall first have
procured from the chief of police . . . a permit to acquire
as prescribed herein.
(Emphasis added).
In 1955, Revised Laws of Hawai#i included:
§ 157-3. Permits to acquire; registration; penalty.
No person shall acquire the ownership of a firearm . . .
either by purchase, gift, inheritance, bequest or in any
other manner, . . . until he has first procured from the
chief of police . . . a permit to acquire as prescribed
herein[.]
RLH § 157-3 (1955) (emphasis added).
(continued...)
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provides that no person shall "acquire the ownership" of a
firearm until that person properly procures a permit to acquire
ownership of a firearm.13 Simply stated, HRS § 134-3 mandates
12
(...continued)
The significant change between the 1945 and 1955 Revised Laws -–
from "take possession" to "acquire the ownership" -– was made in 1949. Act
192 of 1949 originated as H.B. 888. 1949 Haw. Sess. Laws, Act 192, § 1 at
459-60. The Senate had also introduced its own bill, S.B. 560, "designed to
relieve licensed hunters from the restricitve provisions of the present law
requiring registration of rifles, shotguns and ammunition, and permits to
purchase ammunition." See S. Stand. Comm. Rep. No. 314, in 1949 Senate
Journal, at 1041. The two bodies apparently agreed to proceed on H.B. 888.
The conference committee ultimately recommended amended language which
included the "No person shall acquire the ownership of a firearm . . ." as was
finally enacted. Conf. Comm. Rep. No. 19, in 1949 House Journal, at 2289-90;
Conf. Comm. Rep. No. 21, in 1949 Senate Journal, at 1584-85.
By 1968, the applicable statute had been re-codified as chapter
134, but retained the key wording:
§ 134-3. Permits to acquire; registration; penalty.
No person shall acquire the ownership of a firearm . . .
either by purchase, gift, inheritance, bequest, or in any
other manner, . . . until he has first procured from the
chief of police . . . a permit to acquire as prescribed
herein[.]
HRS § 134-3 (1968) (emphasis added).
In 1988, chapter 134, part I was replaced with a new version that
sought to clarify and improve the chapter's language. 1988 Haw. Sess. Laws
Act 275, § 1 at 510. Many of the part I sections were substantively
unchanged, although some were re-codified into different sections in different
order. Compare HRS § 134-3 (1985) with HRS § 134-2 (2011).
Most significantly, the legislative history reveals that Hawaii's
firearm control statute was originally drafted to require a permit to "take
possession of" a firearm but the legislature purposefully changed that to
"acquire the ownership of" a firearm.
13
HRS § 134-2 provides in pertinent part:
§ 134-2 Permits to acquire. (a) No person shall
acquire the ownership of a firearm, whether usable or
unusable, serviceable or unserviceable, modern or antique,
registered under prior law or by a prior owner or
unregistered, either by purchase, gift, inheritance,
bequest, or in any other manner, whether procured in the
State or imported by mail, express, freight, or otherwise,
until the person has first procured from the chief of police
of the county of the person's place of business or, if there
is no place of business, the person's residence or, if there
is neither place of business nor residence, the person's
place of sojourn, a permit to acquire the ownership of a
firearm as prescribed in this section. When title to any
firearm is acquired by inheritance or bequest, the foregoing
permit shall be obtained before taking possession of a
firearm; provided that upon presentation of a copy of the
(continued...)
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the registration of firearms, with very limited exceptions, and
HRS § 134-3(b) mandates that every person who acquires a firearm
pursuant to HRS § 134-2(a) – i.e., every person who acquires the
ownership of a firearm – must register the firearm within five
days of acquisition.14 As Slavik notes, HRS § 134-4 (2011)
governs the possession of a firearm that is owned by another.15
13
(...continued)
death certificate of the owner making the bequest, any heir
or legatee may transfer the inherited or bequested firearm
directly to a dealer licensed under section 134-31 or
licensed by the United States Department of Justice without
complying with the requirements of this section.
Generally stated, most of the remaining subsections of HRS § 134-2
describe in detail the requirements and procedures for acquiring the ownership
of a firearm, as well as proscribe anyone from transferring a firearm except
as provided in HRS chapter 134. HRS § 134-17 sets out the penalties for
violation of the mandates of HRS chapter 134.
14
HRS § 134-3 provides in pertinent part:
§ 134-3 Registration, mandatory, exceptions. (a)
Every person arriving in the State who brings or by any
other manner causes to be brought into the State a firearm
of any description, whether usable or unusable, serviceable
or unserviceable, modern or antique, shall register the
firearm within five days after arrival of the person or of
the firearm, whichever arrives later, with the chief of
police of the county of the person's place of business or,
if there is no place of business, the person's residence or,
if there is neither a place of business nor residence, the
person's place of sojourn. A nonresident alien may bring
firearms not otherwise prohibited by law into the State for
a continuous period not to exceed ninety days; provided that
the person meets the registration requirement of this
section and the person possesses:
. . . .
(b) Every person who acquires a firearm pursuant to
section 134-2 shall register the firearm in the manner
prescribed by this section within five days of acquisition.
. . .
15
HRS § 134-4 provides in pertinent part:
§ 134-4 Transfer, possession of firearms. (a) . . .
(b) No person shall possess any firearm that is owned
by another, regardless of whether the owner has consented to
possession of the firearm, without a permit from the chief
of police of the appropriate county, except as provided in
subsection (c) and section 134-5.
(continued...)
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HRS chapter 134 does not define ownership, but states
that "'Acquire' means gain ownership of." HRS 134-1 (2011).
Black's Law Dictionary defines "ownership" as "[t]he bundle of
rights allowing one to use, manage, and enjoy property, including
the right to convey it to others. . . . Ownership implies the
right to possess a thing, regardless of any actual or
constructive control. Ownership rights are general, permanent,
and heritable[.]" Ownership, Black's Law Dictionary 1332 (11th
ed. 2019). Black's defines "possession" as "[t]he fact of having
or holding property in one's power; the exercise of dominion over
property." Id. at 1408. Similarly, Webster's Dictionary defines
"owner" as "one that owns: one that has the legal or rightful
title whether the possessor or not." Owner, Webster's Third New
International Dictionary 1612 (1986).
Slavik contends that the State presented no evidence
that he owned the firearm or acquired ownership of the firearm,
only that he had possession of it on June 20, 2018. As Slavik
highlights, during deliberation, the jury sent Communication No.
1, which asked, "Would you consider possession as ownership? in
regards to charge #2." The Circuit Court responded by directing
15
(...continued)
(c) Any lawfully acquired rifle or shotgun may be
lent to an adult for use within the State for a period not
to exceed fifteen days without a permit; provided that where
the rifle or shotgun is to be used outside of the State, the
loan may be for a period not to exceed seventy-five days.
(d) No person shall knowingly lend a firearm to any
person who is prohibited from ownership or possession of a
firearm under section 134-7.
HRS § 134-5 (2011), which does not appear to be relevant to any
argument in this case, allows for possession of certain firearms by licensed
hunters, and for target shooting and hunting, as detailed in that provision.
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the jury to refer to the jury instructions. Notably, no
definition of ownership was included in the jury instructions,
but they included an instruction differentiating between actual
and constructive possession. Slavik submits that the jury
apparently, but erroneously, concluded that ownership and
possession were synonymous in finding Slavik guilty on Counts 2
and 3.
As to Count 3, Slavik further argues that since the
State presented no evidence concerning whether or when Slavik
acquired ownership of the firearm, it could not prove that he
failed to register it within five days, as required under HRS
§ 134-3(b).
The State argues, in essence, that evidence of
possession is sufficient evidence of ownership, citing two civil
cases for the proposition that possession is prima facie evidence
of ownership that the other party has to rebut. The State points
to Officer Ivy's testimony that he found Slavik sitting in the
driver's side of a vehicle, eyes closed, with the seat reclined,
and there was a pistol laying on the passenger seat under
Slavik's right hand. The State contends that the evidence that
Slavik was in exclusive and uncontested possession of the
firearm, and the lack of any evidence that another person owned
the firearm, constituted sufficient evidence that Slavik had
acquired ownership of the firearm.
The supreme court has established that "an essential
or material element of a crime is one whose specification with
precise accuracy is necessary to establish the very illegality of
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the behavior." Jenkins, 93 Hawai#i at 108, 997 P.2d at 34(citation and brackets omitted). The conduct element of HRS §
134-2(a) that must be proven with precise accuracy is that a
person acquired the ownership of a firearm.16 Reading the
statutory language in the context of the entire firearms control
statute, HRS chapter 134, it is clear that the legislature did
not intend ownership to be synonymous with possession. See
Jenkins, 93 Hawai#i at 108, 997 P.2d at 34 ("[w]e read statutory
language in the context of the entire statute, and construe it in
a manner consistent with its purpose") (citation and internal
quotation marks omitted). Some provisions in HRS chapter 134,
including HRS §§ 134-2(a) and 134-3(b), regulate ownership of
firearms. Other provisions, such as HRS §§ 134-4(b), 134-5, 134-
22 (2011),17 and 134-26,18 govern possession of a firearm under
various circumstances. Still other provisions of HRS chapter 134
establish mandates for, inter alia, ownership or possession of a
firearm. See, e.g., HRS §§ 134-7 (prohibiting ownership or
possession by, among others, a person who is a fugitive from
justice or who has been convicted of a felony) & 134-29 (2011 and
Supp. 2019) (requiring any person who owns or possesses a firearm
to report its loss, theft, or destruction). The legislative
history of Hawaii's firearm control statute confirms that the
16
Equally essential is the element that the acquisition of ownership
of the firearm was prior to procuring a permit to acquire the ownership of a
firearm. See HRS § 134-2(a).
17
HRS § 134-22 proscribes knowingly possessing a firearm with the
intent to facilitate the commission of certain felonies.
18
HRS § 134-26 prohibits carrying or possessing a loaded firearm on
a public highway, except under certain circumstances.
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legislature deliberately changed the permitting and registration
requirements to associate them with ownership rather than
possession.
Although the burden-shifting suggested by the State may
be acceptable in a civil case, in criminal cases, "the burden is
always upon the prosecution to establish every element of crime
by proof beyond a reasonable doubt, never upon the accused to
disprove the existence of any necessary element." State v.
Cuevas, 53 Haw. 110, 113, 488 P.2d 322, 324 (1971).
[T]he burden of proof, as those words are understood in
criminal law, is never upon the accused to establish his
innocence or to disprove the facts necessary to establish
the crime for which he is indicted. It is on the
prosecution from the beginning to the end of the trial and
applies to every element necessary to constitute the crime.
Id. (quoting Davis v. United States, 160 U.S. 469, 487 (1895)).
For this reason, the civil cases cited by the State are
inapplicable.
That said, it is well-established that a trier of fact
may draw a reasonable inference from a fact that is proven to one
that is permissibly inferred. See, e.g., State v. Pone, 78
Hawai#i 262, 271, 892 P.2d 455, 464 (1995). However, "an
evidentiary device such as a presumption or an inference must not
undermine the factfinder's responsibility at trial, based on
evidence adduced by the State, to find the ultimate facts beyond
a reasonable doubt." State v. Bumanglag, 63 Haw. 596, 618, 634
P.2d 80, 94 (1981) (citation and internal quotation marks
omitted). It has been recognized that due process requires that
there be "a natural and rational evidentiary relation between the
facts proven and the ultimate fact." Id. (citation omitted). In
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the context of Hawaii's firearm control statute, wherein the
legislature imposed a variety of distinct mandates and penalties
arising out of the acquisition of ownership as opposed to
possession of a firearm and vice versa, we hold that evidence of
possession of a firearm, without more, is insufficient to support
a justifiable inference that a defendant acquired ownership of
the firearm.19 To conclude otherwise would undermine the
legislative determination of the distinction between possession
and ownership and violate a defendant's due process right to be
convicted only upon proof beyond a reasonable doubt of the
particular charge against him or her.
Here, there is no evidence in the record, other than
the evidence that Slavik was in possession of a firearm, that
supports a determination that Slavik acquired ownership of a
firearm. The only relevant evidence presented was the testimony
of the HCPD Officers Ivy and Fui, who found Slavik sleeping in a
car on the side of a public highway with the gun on the seat next
to him, underneath his hand. Officer Fui testified, in essence,
that Slavik was not the owner of the car in which he was
sleeping. No other evidence concerning ownership of the firearm
was presented. Accordingly, viewing the evidence in the light
most favorable to the prosecution, and in full recognition of the
province of the trier of fact, we conclude that the Circuit Court
erred in denying Slavik's motion for acquittal as to Counts 2 and
19
We recognize that proof of possession, along with other facts in
evidence, including circumstantial evidence and reasonable inferences
therefrom, might be sufficient to sustain a conviction of an offense involving
acquisition of ownership under HRS chapter 134.
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3, both of which required the State to establish that Slavik
acquired ownership of the firearm. Slavik's conviction as to
Counts 2 and 3 are reversed.
D. Jury Instructions
Slavik asserts numerous errors in the Circuit Court's
instructions to the jury with respect to Counts 1, 2, 3, and 5.
Overall, the jury instructions defining at least some of the
offenses are difficult to follow, are substantially modified from
the Hawai#i Standard Jury Instructions Criminal (HAWJIC), and
certain of Slavik's arguments appear to have merit. However, as
we have concluded that Slavik's conviction as to Counts 2 and 3
must be reversed, and Counts 1 and 5 must be vacated and remanded
for dismissal without prejudice, we decline to address the
alleged instructional errors.
V. CONCLUSION
For the reasons set forth above, the Circuit Court's
April 22, 2019 Judgment is reversed with respect to Counts 2 and
3. The Judgment is vacated and remanded for dismissal without
prejudice as to Counts 1 and 5.
/s/ Lisa M. Ginoza
Chief Judge
/s/ Katherine G. Leonard
Associate Judge
/s/ Karen T. Nakasone
Associate Judge
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