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