*** FOR PUBLICATION IN WEST’S HAWAI I REPORTS AND PACIFIC REPORTER ***
Electronically Filed
Supreme Court
SCWC-XX-XXXXXXX
12-SEP-2025
08:13 AM
Dkt. 23 OPA
IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
---o0o---STATE OF HAWAIʻI,
Respondent/Plaintiff-Appellant,
vs.
BRIAN LEE SMITH,
Petitioner/Defendant-Appellee.
SCWC-XX-XXXXXXX
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-XX-XXXXXXX; CASE NO. 3CPC-XX-XXXXXXX)
SEPTEMBER 12, 2025
RECKTENWALD, C.J., EDDINS, GINOZA, AND DEVENS, JJ.,
WITH McKENNA, J. CONCURRING AND DISSENTING
OPINION OF THE COURT BY RECKTENWALD, C.J.
I. INTRODUCTION
Defendant Brian Lee Smith was indicted for murder
(Count 1) and attempted murder (Count 2) in connection with a
shooting in Kona. Both counts alleged that Smith was subject to
a sentencing enhancement under Hawaiʻi Revised Statutes (HRS)
*** FOR PUBLICATION IN WEST’S HAWAI I REPORTS AND PACIFIC REPORTER ***
§ 706-660.1 (2014), based on his possession, use, or threat of
use of a firearm while he was engaged in the commission of the
offenses. However, the counts did not allege a state of mind
applicable to the sentencing enhancement.
This case poses a single question of law: is a
charging instrument that does not allege a state of mind for a
sentencing enhancement under HRS § 706-660.1 defective?
We answer this question in the negative. First, we
hold that the sentencing enhancement here was not an element of
the underlying offenses such that a state of mind had to be
alleged in the indictment. Additionally, we hold that due
process is satisfied when a criminal defendant is notified that
the sentence enhancement will be sought if that defendant is
convicted of the underlying crime and the charging instrument
contains sufficient allegations supporting its application.
II. BACKGROUND
On June 23, 2018, Petitioner/Defendant-Appellee Brian
Lee Smith shot and killed Thomas Ballesteros, Jr., and shot and
injured Nikolaus Slavik. Other than Smith, Slavik was the only
eyewitness to the incident.
A grand jury indicted Smith on seven counts: Murder in
the Second Degree, in violation of HRS § 707-701.5(1) (2014)
(Count 1); Attempted Murder in the Second Degree, in violation
of HRS §§ 705-500 (2014) and 707-701.5 (Count 2); Attempted
2
*** FOR PUBLICATION IN WEST’S HAWAI I REPORTS AND PACIFIC REPORTER ***
Murder in the First Degree, in violation of HRS §§ 705-500 and
707-701 (Supp. 2016) (Count 3); Ownership or Possession
Prohibited (operable firearm), in violation of HRS § 134-7(b)
and (h) (2011) (Count 4); Ownership or Possession Prohibited
(ammunition), in violation of HRS § 134-7(b) and (h) (Count 5);
Carrying or Use of Firearm in the Commission of a Separate
Felony, in violation of HRS § 134-21(a) (2011) (Count 6); and
Carrying or Use of Firearm in the Commission of a Separate
Felony, in violation of HRS § 134-21(a) (Count 7).
Counts 1 and 2 both contained a sentencing enhancement
under HRS § 706-660.1,1 as follows:
1 HRS § 706-660.1, “Sentence of imprisonment for use of a firearm, semiautomatic firearm, or automatic firearm in a felony,” provides in relevant part:
(1) A person convicted of a felony, where the
person had a firearm in the person’s possession or
threatened its use or used the firearm while engaged in the
commission of the felony, whether the firearm was loaded or
not, and whether operable or not, may in addition to the
indeterminate term of imprisonment provided for the grade
of offense be sentenced to a mandatory minimum term of
imprisonment without possibility of parole or probation the
length of which shall be as follows:
(a) For murder in the second degree and attempted
murder in the second degree--up to fifteen
years;
(b) For a class A felony--up to ten years;
(c) For a class B felony--up to five years; and
(d) For a class C felony--up to three years.
(continued . . .)
3
*** FOR PUBLICATION IN WEST’S HAWAI I REPORTS AND PACIFIC REPORTER ***
COUNT 1 (C18017673/KN)
On or about the 23rd day of June, 2018, in Kona,
County and State of Hawaiʻi, BRIAN LEE SMITH intentionally
or knowingly caused the death of another person, THOMAS
BALLESTEROS, JR., thereby committing the offense of Murder
in the Second Degree, in violation of Section 707-701.5(1),
Hawaiʻi Revised Statutes, as amended. It is further alleged
that the Defendant is subject to sentencing in accordance
with Section 706-660.1,[] Hawaiʻi Revised Statutes, where he
had a firearm in his possession or threatened its use or
used the firearm while engaged in the commission of the
felony offense, whether the firearm was loaded or not, and
whether operable or not.
COUNT 2 (C18017740/KN)
On or about the 23rd day of June, 2018, in Kona,
County and State of Hawaiʻi, BRIAN LEE SMITH intentionally
engaged in conduct, which, under the circumstances as he
believed them to be, constituted a substantial step in the
course of conduct intended to culminate in his commission
of the crime of Murder in the Second Degree , [sic] said
crime being intentionally or knowingly caused the death of
another person, NIKOLAUS SLAVIK, thereby committing the
offense of Attempted Murder in the Second Degree, in
violation of Section 705-500 and 707-701.5, Hawaiʻi Revised
Statutes, as amended. It is further alleged that the
Defendant is subject to sentencing in accordance with
Section 706-660.1, Hawaiʻi Revised Statutes, where he had a
firearm in his possession or threatened its use or used the
firearm while engaged in the commission of the felony
offense, whether the firearm was loaded or not, and whether
operable or not.
(Emphasis added.)
At trial, Smith testified that he returned home from
work to find Ballesteros and Slavik in the road near his house.
The sentence of imprisonment for a felony involving
the use of a firearm as provided in this subsection shall
not be subject to the procedure for determining minimum
term of imprisonment prescribed under section 706-669;
provided further that a person who is imprisoned in a
correctional institution as provided in this subsection
shall become subject to the parole procedure as prescribed
in section 706-670 only upon the expiration of the term of
mandatory imprisonment fixed under paragraph (a), (b), (c),
or (d).
4
*** FOR PUBLICATION IN WEST’S HAWAI I REPORTS AND PACIFIC REPORTER ***
Ballesteros had allegedly broken into Smith’s house the day
before, looking for Ballesteros’ girlfriend, who had been
staying with Smith. Smith testified that he retrieved his
“hunting backpack” from his shed, before confronting Ballesteros
and Slavik, neither of whom were armed. The backpack contained
a handgun and 67 rounds of ammunition. Smith also testified
that he intentionally fired the handgun in self-defense, but
that he did not intend for the bullet to hit, or kill,
Ballesteros. Smith further testified that his hand was on the
trigger of the gun during the struggle with Slavik when it
discharged multiple times, shooting Slavik and himself.
The jury was given the following instruction regarding
the sentencing enhancement for Count 1:
If you find the defendant Guilty as to Murder in the
Second Degree or Manslaughter (Extreme Mental or Emotional
Disturbance), you shall answer the following interrogatory.
Your decision must be unanimous.
Has the prosecution proved beyond a reasonable doubt
that the defendant intentionally used and/or threatened to
use a firearm, whether the firearm was loaded or unloaded,
operable or inoperable, while engaged in the commission of
the offense of Murder in the Second Degree or Manslaughter
(Extreme Mental or Emotional Disturbance)?
(Emphasis added.)
A substantially identical instruction was also read
for Count 2.
The jury found Smith guilty of Counts 1, 4, 5, and 6,
as well as the lesser included offense of Reckless Endangering
in the First Degree, in violation of HRS § 707-713(1) (2014), on
5
*** FOR PUBLICATION IN WEST’S HAWAI I REPORTS AND PACIFIC REPORTER ***
Count 2. It answered the interrogatories as to use or
threatened use of a firearm in the affirmative for both Counts 1
and 2. The circuit court sentenced Smith to a term of life
imprisonment with the possibility of parole, with consecutive
mandatory minimum terms of fifteen and three years on Counts 1
and 2 pursuant to HRS § 706-660.1.
Smith appealed, challenging his conviction exclusively
on evidentiary grounds.2 Smith did not challenge the sufficiency
of the Indictment or his sentencing pursuant to HRS § 706-660.1.
The Intermediate Court of Appeals (ICA) vacated
Smith’s conviction in part, concluding that the circuit court
erred when it precluded Smith “from cross-examining Slavik
regarding his arrest, pending felony charges, and bail status on
June 23, 2018[,] in an unrelated case, for purposes of showing
bias, interest, and motive to testify falsely.” The ICA
determined that “there is a reasonable possibility that the
Circuit Court’s error contributed to Smith’s convictions” as to
Counts 1, 2, and 6. However, because Smith stipulated that he
2 Smith’s errors on appeal challenged: (1) the circuit court’s prohibition of cross-examination of Slavik regarding felony charges that were pending against him and his bail status; (2) the circuit court’s preventing Smith from calling a witness during his case-in-chief to establish an alleged conspiracy to hide evidence; (3) the circuit court’s preventing Smith from eliciting hearsay evidence that neither Ballesteros nor Slavik had permission to pick fruit on the property; and (4) the circuit court’s admission of testimony that Smith smoked methamphetamine the day before the shooting.
6
*** FOR PUBLICATION IN WEST’S HAWAI I REPORTS AND PACIFIC REPORTER ***
had previously been convicted of a felony offense and admitted
at trial that he possessed a firearm that he had brought with
him on June 23, 2018, the error was harmless beyond a reasonable
doubt as to Counts 4 and 5. As such, the ICA vacated the
circuit court’s Judgment of Conviction and Sentence only as to
Counts 1, 2, and 6, and remanded the case for a new trial as to
those counts.
On remand, Smith for the first time challenged the
sufficiency of the Indictment, moving to strike the HRS § 706-660.1 sentencing enhancements included in Counts 1 and 2 of the
Indictment. Smith argued that the enhancements are elements,
within the meaning of State v. Auld, 136 Hawaiʻi 244, 361 P.3d
471 (2015), and that, as such, the applicable state of mind must
be pled under State v. Gonzalez, 128 Hawaiʻi 314, 324, 288 P.3d
788, 798 (2012), and State v. Nesmith, 127 Hawaiʻi 48, 53, 276
P.3d 617, 622 (2012). Because the State failed to do so, Smith
contended that sentencing enhancements must be struck from the
Indictment.
The State opposed, arguing that “a mens rea is not
necessary for purposes of enhancement under HRS § 706-660.1, and
any such mens rea is necessarily included in the underlying
offense the State seeks the enhancement on.” The State also
argued due process was satisfied because it was an “absurdity”
for “a defendant [to] claim[] not to know what he must meet at
7
*** FOR PUBLICATION IN WEST’S HAWAI I REPORTS AND PACIFIC REPORTER ***
trial when a case has already been tried once.” Finally, the
State noted that, when read in its entirety, the Indictment gave
sufficient notice:
Further, the Defendant was originally charged with
knowingly carrying or intentionally using a firearm to
commit the murder of Thomas Ballesteros and the attempted
murder of Nikolaus Slavik in counts 6 and 7,[ 3]
respectively. This assuredly put him on notice even if the
Court does find a mens rea necessary for the enhancements,
since the act giving rise to the enhancement under HRS
§706-660.1 is mirrored in the charge of the HRS § 134-21(a), though counts 6 and 7 include state of mind
language.
3 Counts 6 and 7 provided:
COUNT 6 (C18017852/KN)
On or about the 23rd day of June, 2018, in the County
and State of Hawaiʻi, BRIAN LEE SMITH knowingly carried on
his person or had within his immediate control or
intentionally used or threatened to use a firearm while
engaged in the commission of a separate felony, Murder in
the Second Degree of THOMAS BALLESTEROS, JR., or any
included felony offense, whether the firearm was loaded or
not, and whether operable or not, thereby committing the
offense of Carrying or Use of Firearm in the Commission of
a Separate Felony, in violation of Section 134-21(a),
Hawaiʻi Revised Statutes, as amended.
COUNT 7 (C18017853/KN)
On or about the 23rd day of June, 2018, in the County
and State of Hawaiʻi, BRIAN LEE SMITH knowingly carried on
his person or had within his immediate control or
intentionally used or threatened to use a firearm while
engaged in the commission of a separate felony, Attempted
Murder in the Second Degree of NIKOLAUS SLAVIK, or any
included felony offense, whether the firearm was loaded or
not, and whether operable or not, thereby committing the
offense of Carrying or Use of Firearm in the Commission of
a Separate Felony, in violation of Section 134-21(a),
Hawaiʻi Revised Statutes, as amended.
(Emphasis added.)
8
*** FOR PUBLICATION IN WEST’S HAWAI I REPORTS AND PACIFIC REPORTER ***
The circuit court agreed with Smith, concluding that
the sentencing enhancements were elements within the meaning of
Apprendi v. New Jersey, 530 U.S. 466 (2000), Alleyne v. United
States, 570 U.S. 99 (2013), and Auld, 136 Hawaiʻi 244, 361 P.3d
471. Because the state of mind required for these “elements”
was not alleged in the Indictment, the circuit court concluded
that “[Smith] has not received proper notice as to what the
state of mind is for the elements of HRS § 706-660.1 for which
[Smith] needs to defend himself against.” On this basis, the
circuit court entered its September 9, 2021 Order Granting
Defendant’s Motion to Strike HRS § 706-660.1 Enhancement For
Counts 1 and 2 Indictment.
The State appealed, arguing primarily that no state of
mind applied to sentencing enhancements under HRS § 706-660.1.
First, the State asserted that a sentencing enhancement under
HRS § 706-660.1 “is not charging an offense, and thus not
subject to or governed by the provisions of HRS §§ 702-204
[(2014)], 702-205 [(2014)], 702-206 [(2014)], or 702-212
[(2014)].” Importantly, the State noted, HRS §§ 702-204 and -212 only apply to “offenses,” whereas HRS § 706-660.1 is a
sentencing enhancement. Accordingly, the State reasoned, there
was no statutory authority to import a state of mind where the
statute on its face omits one.
9
*** FOR PUBLICATION IN WEST’S HAWAI I REPORTS AND PACIFIC REPORTER ***
The State also argued that our caselaw did not require
a different outcome. State contended that its position was
consistent with our holding in State v. Wagner, 139 Hawaiʻi 475,
394 P.3d 705 (2017), that a sentencing enhancement factor is not
an element of an offense. Auld had no application, the State
reasoned, because Auld only held that due process required the
State allege predicate aggravating facts in the charging
instrument and that a jury, not a judge, must determine if they
are proven beyond a reasonable doubt. Further, the State
asserted that Gonzalez and State v. Wheeler, 121 Hawaiʻi 383, 219
P.3d 1170 (2009), were inapposite because those cases addressed
the sufficiency of a charged offense, not a sentencing
enhancement. Additionally, the State noted that its position
was consistent with federal caselaw, which has continued to
impose strict liability in firearm possession cases in the wake
of Apprendi and Alleyne.
Finally, the State argued that the circuit court
abused its discretion in striking the charges because it
“amounts to a dismissal under the circumstances, given the
procedural history of the case, . . . [and] would leave the
State without remedy.” No further clarification was given.
Smith countered that “if the State seeks enhanced
penalties under HRS § 706-660.1, . . . the State must also
allege and prove the applicable mens rea for those elements
10
*** FOR PUBLICATION IN WEST’S HAWAI I REPORTS AND PACIFIC REPORTER ***
under HRS § 702-204 and to satisfy due process.” First, Smith
argued that some state of mind applies for the three factual
scenarios contemplated under HRS § 706-660.1. Because HRS
§ 706-660.1 can be satisfied through either “threatened use” or
“use of a firearm,” Smith argues that such acts must be proven
to be knowing to meet the requisite state of mind. For mere
“possession,” however, Smith argued the State was required to
meet a two-prong analysis under HRS § 702-202 (2014) to prove
knowing possession of an object with reckless disregard that it
is a firearm.4 Second, Smith rejected the State’s argument that
it “is not charging an offense,” contending that the aggravating
circumstances must be alleged because they are “elements” within
the meaning of Auld and Alleyne. Finally, Smith argued that if
the aggravating circumstances do contain a state of mind, “due
process demands the mens rea be alleged.” (Citing Gonzalez, 128
Hawaiʻi at 324, 288 P.3d at 798).
The ICA vacated the circuit court’s order granting the
motion to strike. The ICA held that “the sentencing enhancement
factor under HRS § 706-660.1 is not an element of an offense
that requires a state of mind” and therefore “a state of mind
4 HRS § 702-202, “Voluntary act includes possession,” provides that “[p]ossession 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.”
11
*** FOR PUBLICATION IN WEST’S HAWAI I REPORTS AND PACIFIC REPORTER ***
for the HRS § 706-660.1 enhancement was not required to be pled
in the Indictment.” The ICA explained that a sentencing
enhancement is not an element of an underlying offense, because
it “only applies post-conviction, after the defendant ‘is
convicted of a felony[,]’ meaning the elements of the predicate
offenses are already proven.” (Quoting HRS § 706-660.1(a))
(relying on Wagner, 139 Hawaiʻi at 480-85, 394 P.3d at 710-15).
The ICA distinguished Auld from the instant case, explaining:
[R]eliance on Auld is misplaced because Auld did not hold
that sentencing enhancement factors were “elements” within
the meaning of HRS § 702-204. Rather, Auld simply required
the facts supporting the enhancement to be alleged in the
charging document and submitted to the jury. See 136
Hawaiʻi at 247-48, 257, 361 P.3d 474-75, 484.
Smith sought certiorari review, which we granted. He
raises a single question: “Did the Intermediate Court of Appeals
gravely err when it ruled that a sentencing enhancement factor
under HRS § 706-660.1 is not an element of an offense that
requires a state of mind and that that state of mind be alleged
in an Indictment?”
III. STANDARD OF REVIEW
“Whether a charge sets forth all the essential
elements of a charged offense is a question of law, which this
court reviews under the de novo, or right/wrong, standard.”
State v. Kauhane, 145 Hawaiʻi 362, 369, 452 P.3d 359, 366 (2019)
(quoting Wheeler, 121 Hawaiʻi at 390, 219 P.3d at 1177) (brackets
omitted).
12
*** FOR PUBLICATION IN WEST’S HAWAI I REPORTS AND PACIFIC REPORTER ***
IV. DISCUSSION
It is well settled that “[a] criminal charge serves
multiple purposes” and implicates a criminal defendant’s rights
under article I, sections 5, 10, and 14 of the Hawaiʻi
Constitution. Nesmith, 127 Hawaiʻi at 52, 276 P.3d at 621. One
of those purposes is to “inform[] the accused ‘fully’ of the
nature and cause of the accusation against him or her, and
sufficiently appris[e] the defendant of what he or she must be
prepared to meet to defend against the charges.” Id. at 66, 276
P.3d at 635 (Acoba, J., concurring and dissenting) (quoted in
State v. Codiamat, 131 Hawaiʻi 220, 223, 317 P.3d 664, 667 (2013)
(brackets in original)). To give effect to that purpose, “[t]he
accusation must sufficiently allege all of the essential
elements of the offense charged. . . . [T]he omission of an
essential element of the crime charged is a defect in substance
rather than of form.” State v. Jendrusch, 58 Haw. 279, 281, 567
P.2d 1242, 1244 (1977) (citations omitted). “[A] charge
defective in this regard amounts to a failure to state an
offense, and a conviction based upon it cannot be sustained, for
that would constitute a denial of due process.” Nesmith, 127
Hawaiʻi at 52, 276 P.3d at 621 (quoting State v. Mita, 124
Hawaiʻi 385, 390, 245 P.3d 458, 463 (2010)).
13
*** FOR PUBLICATION IN WEST’S HAWAI I REPORTS AND PACIFIC REPORTER ***
To obtain a conviction, the State bears a statutorily
defined burden of proof and persuasion that is provided for in
HRS § 701-114 (2014), “Proof beyond a reasonable doubt”:
(1) Except as otherwise provided in section 701-115, no person may be convicted of an offense unless the
following are proved beyond a reasonable doubt:
(a) Each element of the offense;
(b) The state of mind required to establish each
element of the offense;
(c) Facts establishing jurisdiction;
(d) Facts establishing venue; and
(e) Facts establishing that the offense was
committed within the time period specified in
section 701-108.
(2) In the absence of the proof required by
subsection (1), the innocence of the defendant is presumed.
The “elements of an offense,” within the meaning of
the Hawaiʻi Penal Code, are defined in HRS § 702-205, which
provides:
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 limitations, lack of venue,
or lack of jurisdiction).
“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.” HRS § 702-204.
14
*** FOR PUBLICATION IN WEST’S HAWAI I REPORTS AND PACIFIC REPORTER ***
Although we have in the past “characteriz[ed] mens rea
as an ‘element’ of the offense,” “[g]iven our statutory
framework, it seems clear that mens rea is not an ‘element of an
offense’ under HRS § 702-205.” Nesmith, 127 Hawaiʻi at 55, 276
P.3d at 624. Nevertheless, this court has explained that
“‘state of mind requirements, though not an element of an
offense[,]’ were required to be included in the charges against
the defendants in order ‘to alert the defendants of precisely
what they needed to defend against to avoid a conviction.’”
Gonzalez, 128 Hawaiʻi at 324, 288 P.3d at 798 (quoting Nesmith,
127 Hawaiʻi at 56, 276 P.3d at 625).
It is undisputed that Counts 1 and 2 of the Indictment
do not provide a state of mind for the HRS § 706-660.1
sentencing enhancements. Smith argues that the Indictment was
defective as to Counts 1 and 2 because the state of mind is
required either as an “element” under HRS § 702-205 through
Auld, or by due process under Nesmith and Gonzalez. As
discussed below, we hold that, consistent with our caselaw, a
sentencing enhancement factor is not an element of an underlying
offense and the omission of its applicable state of mind from a
charging instrument does not violate due process under the
Hawaiʻi Constitution.
15
*** FOR PUBLICATION IN WEST’S HAWAI I REPORTS AND PACIFIC REPORTER ***
A. Sentence Enhancements Are Not “Elements” Within the Meaning
of the Hawaiʻi Penal Code
1. Under Wagner, a sentencing enhancement factor is not
an “element” of an underlying offense
Our opinion in Wagner is dispositive as to whether a
sentencing enhancement factor is an element of an underlying
offense for purposes of the Hawaiʻi Penal Code. In Wagner, we
addressed whether the circuit court erred when it put the
defendant’s prior conviction before the jury as an element of
the offense in a drug trafficking case, where the defendant had
stipulated to that prior conviction. 5 The ICA affirmed the
5 In addition to two possession charges, the Wagner defendant was convicted of Methamphetamine Trafficking in the First Degree, in violation of HRS § 712-1240.7(1)(a) (Supp. 2006), for possessing an ounce or more of methamphetamine with a prior methamphetamine trafficking conviction. Wagner, 139 Hawaiʻi at 478, 394 P.3d at 708. At the time, HRS § 712-1240.7 provided in relevant part:
(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;
(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
(continued . . .)
16
*** FOR PUBLICATION IN WEST’S HAWAI I REPORTS AND PACIFIC REPORTER ***
defendant’s conviction, concluding that presenting the jury with
the fact of the prior conviction was not an abuse of discretion
“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.” Wagner, 139 Hawaiʻi at 479, 394 P.3d at 709 (internal
quotation marks, brackets, and ellipsis omitted). We disagreed
and held that the “circuit court erred in construing [the
defendant]’s prior methamphetamine conviction as an element of
the offense, rather than a sentencing enhancement factor,” and,
as such, “unnecessarily subject[ed] [the defendant] to potential
prejudice due to the jurors learning of his prior felony
conviction.” Id. at 476, 480, 394 P.3d at 706, 710.
In determining that a prior conviction is a sentencing
enhancement factor and not an element of the underlying offense,
we explained,
The legislature has the ability to make a defendant’s
prior conviction an attendant circumstance, and
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[.]
17
*** FOR PUBLICATION IN WEST’S HAWAI I REPORTS AND PACIFIC REPORTER ***
accordingly, an element of the offense. See, e.g., HRS
§ 291-4.4 (Supp. 2000) (repealed 2000). One way for the
legislature to indicate that 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.
Id. at 480-81, 394 P.3d at 710-11 (footnote omitted).
Thus, we looked to the (1) plain language, (2)
structure, and (3) legislative history of the statute; we also
considered (4) due process notice concerns raised by construing
the subsection as a sentencing factor and not an element. Id.
at 481-84, 394 P.3d at 711-14. First, reviewing the plain
language of the statute, we found nothing to suggest that a
prior conviction was an element of the offense. Id. at 481, 394
P.3d at 711. Second, we noted that the provisions establishing
the prohibited conduct made no mention of prior convictions and
were separate from the subsection that governed the defendant’s
sentencing, suggesting that a prior conviction was not an
element of the offense. Id. at 482, 394 P.3d at 712. Third, we
concluded that “nothing in [the] legislative history indicate[d]
that the drafters intended for a defendant’s prior conviction to
be construed as an element of the offense.” Id. Fourth, we
explained that where a prior conviction is so enmeshed or
intrinsic to the offense, such as where the offense involves a
hierarchy of misdemeanors and felonies, due process concerns
would preclude concluding the prior conviction is not an element
because, without it, a defendant would not be given notice of
18
*** FOR PUBLICATION IN WEST’S HAWAI I REPORTS AND PACIFIC REPORTER ***
the “class and grade of the offense charged . . . and whether
the right to a jury has or has not attached.” Id. at 483, 394
P.3d at 713 (discussing State v. Domingues, 106 Hawaiʻi 480, 107
P.3d 409 (2005) and State v. Kekuewa, 114 Hawaiʻi 411, 163 P.3d
1148 (2007)).6
Applying the Wagner analysis here, we come to the same
conclusion and hold that possession of a firearm under HRS
§ 706-660.1(1) is not an element of an offense, but is instead a
sentencing enhancement factor. First, we look at the plain
language of the statute. The enhancement only applies once “[a]
person [is] convicted of a felony, where the person had a
firearm in the person’s possession or threatened its use or used
the firearm while engaged in the commission of the felony,
whether the firearm was loaded or not, and whether operable or
not.” HRS § 706-660.1(1). This language does not indicate that
possession, use, or threat of use of a firearm is an element of
the underlying felony, suggesting that the foregoing is a
sentencing enhancement factor, and not an element of the
offense.
6 Further, we explained in Wagner that the defendant “was on notice of the potential enhanced sentences, as the State asserted its intent to utilize [the defendant]’s prior conviction in its Amended Complaint.” 139 Hawaiʻi at 484, 394 P.3d at 714.
19
*** FOR PUBLICATION IN WEST’S HAWAI I REPORTS AND PACIFIC REPORTER ***
Importantly, HRS § 706-660.1 does not establish an
“offense” for possession of a firearm during the commission of a
felony; that offense is provided for in HRS § 134-21, an offense
under which Smith was charged in Counts 6 and 7. Instead, HRS
§ 706-660.1 establishes factors for imposing a mandatory minimum
term during sentencing, following a predicate conviction. On
this basis alone, HRS §§ 702-204 and -205 are inapplicable on
their faces.
Second, we note that a sentencing enhancement under
HRS § 706-660.1 is made pursuant to an entirely separate
statute, and indeed chapter, of the Hawaiʻi Penal Code than the
underlying felony offense. HRS chapter 706, which governs the
“Disposition of Convicted Defendants,” includes four parts
dealing with (I) pre-sentence investigations and reports,
authorized dispositions, and classes of felonies; (II)
probation; (III) fees, fine, and restitution; and (IV)
imprisonment. This statutory structure suggests that
possession, use, or threat of use of a firearm is a sentencing
enhancement factor, and not an element of the offense.
Third, nothing in the legislative history of HRS
§ 706-660.1 suggests that the legislature intended possession,
use, or threat of use of a firearm in the commission of a
separate felony to be considered an element of an underlying
felony offense. For example, the stated purpose of the
20
*** FOR PUBLICATION IN WEST’S HAWAI I REPORTS AND PACIFIC REPORTER ***
legislature in enacting Act 204 was to “discourag[e] the use of
firearms [through] stronger and more certain penalties.” 1976
Haw. Sess. Laws Act 204 § 1 at 493; see also Conf. Comm. Rep.
No. 34-76, in 1976 Senate Journal, at 883 (“Your Committee
intends to require the court, in the cases of felonies where a
firearm was used, to impose a mandatory term of
imprisonment. . . . At the present time, your Committee feels
that there is a need to re-examine the methods with which to
discourage the use of firearms and institute strong penalties
for persons convicted of such criminal activities.”).
Further, when the legislature amended the statute in
1987 through Act 260 to allow a mandatory minimum sentence to be
imposed where the defendant possessed, but did not use or
threaten to use a firearm in the commission of a felony, 7
Conference Committee Report No. 113 explained,
Your Committee upon further consideration has amended
this bill by reinserting the language of S.B. 847, S.D. 1.
Your Committee believes that the provision allowing for
judicial discretion in imposing a mandatory term will
address the concern that under certain circumstances the
mere possession of a firearm may not justify a mandatory
prison term.
Conf. Comm. Rep. No. 113, in 1987 House Journal, at 1061-62.
7 The House Judiciary Committee had amended Senate Bill 847, S.D. 1, to permit a mandatory minimum only when the criminal defendant possessed the firearm “and” used or threatened its use in the commission of a felony; however, the Conference Committee restored the “or” to permit sentencing enhancement for mere possession. Conf. Comm. Rep. No. 111, in 1987 Senate Journal, at 876; Conf. Comm. Rep. No. 113, 1987 House Journal, at 1061-62.
21
*** FOR PUBLICATION IN WEST’S HAWAI I REPORTS AND PACIFIC REPORTER ***
As the Conference Committee Report No. 113 clearly
shows, the legislature viewed possession of a firearm as a
factor for the trial court to consider at the time of
sentencing, rather than as an element of an underlying crime.
Once a criminal defendant was convicted of the underlying crime,
the trial court would be empowered at its discretion under HRS
§ 706-660.1 to impose a mandatory minimum if warranted under the
circumstances. Nothing in this legislative history evinces the
legislature’s intent for HRS § 706-660.1 to be anything other
than a sentencing enhancement factor.
Fourth, construing possession, use, or threat of use
of firearm as a sentencing enhancement factor does not pose the
due process notice concerns present in Domingues and Kekuewa.
Those cases involved a hierarchy of possible punishments, some
of which entitled the defendant to a jury trial and some of
which did not. Instead, the facts here are more like the facts
in Wagner. In Wagner, as here, the statute in question
“establishes felony offenses only, rather than a hierarchy of
misdemeanors and felonies, and thus [the defendant] was entitled
to a jury trial in any event.” 139 Hawaiʻi at 484, 394 P.3d at
714. Moreover, just as we noted in Wagner, “[Smith] was on
notice of the potential enhanced sentences, as the State
asserted its intent to utilize [Smith]’s [possession of a
firearm] in its [Indictment].” Id.
22
*** FOR PUBLICATION IN WEST’S HAWAI I REPORTS AND PACIFIC REPORTER ***
Based on the foregoing, we hold that a sentencing
enhancement under HRS § 706-660.1 is not an element of an
underlying offense within the meaning of HRS § 702-205.
2. Auld does not require a different outcome
Smith argues that our opinion in Auld - decided two
years before Wagner - is controlling. Auld, however, is
inapposite here. Although Auld describes “any fact that
increases the penalty of a crime” as an “element” within the
meaning of Apprendi and Alleyne, see Auld, 136 Hawaiʻi at 247-48,
361 P.3d at 474-`75, that does not make it an “element of an
offense” within the meaning of HRS § 702-205.
In Auld, we considered whether predicate prior
convictions must be alleged in a charging instrument and proven
to a jury beyond a reasonable doubt to receive a mandatory
minimum term as a repeat offender. Auld, 136 Hawaiʻi at 246-47,
361 P.3d at 473-74. At sentencing, the circuit court granted
the State’s motion to impose a mandatory minimum term as a
repeat offender, despite the charging instrument not alleging
any prior convictions and the jury not finding beyond a
reasonable doubt that the defendant had any predicate prior
23
*** FOR PUBLICATION IN WEST’S HAWAI I REPORTS AND PACIFIC REPORTER ***
convictions.8 Id. at 249, 361 P.3d at 476. On appeal, the ICA
affirmed the conviction and sentence, concluding that prior
convictions fell within an exception to the general rule
requiring aggravating facts be alleged and proved to the jury
beyond a reasonable doubt. Id. at 250, 361 P.3d at 477. We
8 The Auld defendant was convicted of Robbery in the Second Degree and sentenced as a repeat offender under HRS § 706-606.5(1)(b)(iii) (2014). At the time, HRS § 706-606.5, “Sentencing of repeat offenders,” provided in relevant part:
(1) Notwithstanding section 706–669 and any other
law to the contrary, any person convicted of murder in the
second degree, any class A felony, any class B felony, or
any of the [enumerated] class C felonies . . . and who has
a prior conviction or prior convictions for the following
felonies, including an attempt to commit the same: murder,
murder in the first or second degree, a class A felony, a
class B felony, any of the class C felony offenses
enumerated above, or any felony conviction of another
jurisdiction, shall be sentenced to a mandatory minimum
period of imprisonment without possibility of parole during
such period as follows:
(b) Two prior felony convictions:
(iii) Where the instant conviction is for a
class B felony—six years, eight months[.]
(2) Except as in subsection (3), a person shall not
be sentenced to a mandatory minimum period of imprisonment
under this section unless the instant felony offense was
committed during such period as follows:
(d) Within ten years after a prior felony
conviction where the prior felony conviction
was for a class B felony[.]
24
*** FOR PUBLICATION IN WEST’S HAWAI I REPORTS AND PACIFIC REPORTER ***
held, in light of the U.S. Supreme Court’s recent opinion in
Alleyne, that, as a matter of state constitutional law, “proof
of prior conviction must be found by a jury beyond a reasonable
doubt” for purposes of establishing repeat offender status under
HRS § 706-606.5. Auld, 136 Hawaiʻi at 255, 361 P.3d at 482. The
reason, we explained, is that “repeat offender sentencing under
HRS § 706-606.5 requires more than just a finding of the ‘fact’
of prior conviction.”9 Id. at 247, 361 P.3d at 474.
We also held that “the predicate prior conviction(s)
must be alleged in the charging instrument.” Id. at 255, 361
P.3d at 482. We went on to hold that “the State provides
‘reasonable notice’ to a defendant it seeks to sentence as a
repeat offender when it alleges the defendant’s predicate prior
convictions in a charging instrument.” Id. Notably, we did not
state that details such as whether the defendant was represented
by counsel or had validly waived counsel needed to be alleged in
the charging instrument. See id. at 254-55, 361 P.3d at 481-82.
We nevertheless affirmed the conviction, giving only prospective
9 In order for the State to establish that the “fact of prior conviction” for the repeat offender sentencing enhancement applied, we required the State to prove beyond a reasonable doubt that: (1) the conviction belongs to the defendant (2) for an enumerated offense (3) within the established time-frame and (4) that the defendant was represented by counsel or validly waived representation. Auld, 136 Hawaiʻi at 254, 361 P.3d at 481.
25
*** FOR PUBLICATION IN WEST’S HAWAI I REPORTS AND PACIFIC REPORTER ***
effect to our newly announced rule. Id. at 257, 361 P.3d at
484.
In Alleyne, the defendant was found beyond a
reasonable doubt by a jury to have “used or carried,” but not
“brandished” a firearm in violation of a federal sentencing
statute in a robbery case.10 570 U.S. at 104 (brackets omitted).
The district court disagreed, finding by a preponderance of the
evidence that the defendant had brandished the firearm. Id.
Accordingly, the district court imposed a seven, rather than a
five, year minimum term. Id. The United States Supreme Court
reversed and held:
Any fact that, by law, increases the penalty for a crime is
an “element” that must be submitted to the jury and found
beyond a reasonable doubt. Mandatory minimum sentences
increase the penalty for a crime. It follows, then, that
any fact that increases the mandatory minimum is an
“element” that must be submitted to the jury.
570 U.S. at 103 (emphasis added) (citation omitted).
10 The Alleyne defendant was sentenced under 18 U.S.C.
§ 924(c)(1)(A) (2006), which, at the time, provided in relevant part, that anyone who “uses or carries a firearm” in relation to a “crime of violence” “shall”:
(i) be sentenced to a term of imprisonment of not less
than 5 years;
(ii) if the firearm is brandished, be sentenced to a term
of imprisonment of not less than 7 years; and
(iii) if the firearm is discharged, be sentenced to a term
of imprisonment of not less than 10 years.
26
*** FOR PUBLICATION IN WEST’S HAWAI I REPORTS AND PACIFIC REPORTER ***
As this discussion makes manifest, Auld addressed the
narrow question of whether the “fact of a prior conviction”
exception survived Alleyne. Auld does not stand for the
proposition that a sentencing enhancement factor is an “element
of an offense” within the meaning of HRS § 702-205. See Auld,
136 Hawaiʻi at 252, 361 P.3d at 479. As the Auld court made
clear, it used the term “element” only within the meaning of
Apprendi and Alleyne, not the Hawaiʻi Penal Code. See id.
(quoting Alleyne, 570 U.S. at 103). Accordingly, Smith’s
reliance on Auld and Alleyne is misplaced. Although a
sentencing enhancement factor is an “element” within the meaning
of Apprendi, because it is a “fact that . . . increases the
penalty for a crime,” see Alleyne, 570 U.S. at 108, and
therefore must be alleged in the Indictment and proven to the
jury – as it was here – that does not make it an “element” of
the underlying offense for purposes of HRS §§ 702-204 and –205.11
11 In State v. Jess, 117 Hawaiʻi 381, 394, 184 P.3d 133, 146 (2008), we held that, “in light of Cunningham[ v. California, 549 U.S. 270 (2007)], except for prior convictions, multiple convictions, and admissions, ‘any fact, however labeled, that serves as a basis for an extended term sentence must be proved beyond a reasonable doubt to the trier of fact.’” (Quoting State v. Maugaotega (Maugaotega II), 115 Hawaiʻi 432, 447 & n.15, 168 P.3d 562, 577 & n.15 (2007).
Jess and Maugaotega II, on which this court relied in Jess, addressed whether the longtime distinction recognized by this court between intrinsic and extrinsic facts for purposes of conviction and sentencing survived the United States Supreme Court’s opinion in Cunningham, which rejected the
(continued . . .)
27
*** FOR PUBLICATION IN WEST’S HAWAI I REPORTS AND PACIFIC REPORTER ***
B. Due Process Does Not Require a Charging Instrument to
Allege a State of Mind for Sentencing Enhancement Factors
We now turn to whether due process requires a charging
instrument to allege a state of mind for a sentencing
enhancement. We conclude that it does not.
We held in Nesmith that a charge “must allege the
requisite mens rea in order to fully define the offense in
unmistakable terms readily comprehensible to persons of common
understanding” and that a court errs in upholding the
sufficiency of a charge on the basis that “mens rea may be
inferred from the allegations.” 127 Hawaiʻi at 50, 276 P.3d at
619. Nesmith, which involved challenges to the sufficiency of
an Operating a Vehicle Under the influence of an Intoxicant
charge, consolidated two cases: the first defendant was charged
under HRS § 291E-61(a)(1) (2007) while the second was charged
under HRS § 291E-61(a)(3) (2007). Id. at 51-52, 276 P.3d at
620-21. The ICA concluded both charges were sufficient despite
neither alleging a state of mind. Id. As to the latter case,
we held that because “the omission of mens rea in an HRS § 291Eintrinsic/extrinsic distinction. Jess, 117 Hawaiʻi at 394-96, 184 P.3d at 146-48; Maugaotega II, 115 Hawaiʻi at 443-47, 168 P.3d at 573-77. We concluded that it did not. Jess, 117 Hawaiʻi at 394, 398, 184 P.3d at 146, 150; Maugaotega II, 115 Hawaiʻi at 447, 168 P.3d at 557. Neither case involved – or even made mention of – mens rea or state of mind. The intrinsic/extrinsic distinction addressed in Jess and Maugaotega II is not dispositive here.
28
*** FOR PUBLICATION IN WEST’S HAWAI I REPORTS AND PACIFIC REPORTER ***
61(a)(3) charge comports with the legislature’s intent to make
that type of . . . offense a strict liability offense . . .
those charges were sufficient.” 12 Id. at 53, 276 P.3d at 622.
However, as to the former case, we held that the charge was
insufficient because it failed to state the requisite mens rea.
We reasoned,
in this case, the “intentional, knowing, or reckless” state
of mind requirements, though not an “element of an offense”
under HRS § 702–205, needed to be charged in an HRS § 291E–
61(a)(1) Complaint to alert the defendants of precisely
what they needed to defend against to avoid a conviction.
A charge omitting the mens rea requirements would not alert
the Petitioners that negligently operating a vehicle under
the influence of an intoxicant in an amount sufficient to
impair the person’s normal mental faculties or ability to
care for the person and guard against casualty, for
instance, is not an offense recognized under HRS § 291E–
1(a)(1). In short, mens rea must be alleged in an HRS
§ 291E–61(a)(1) charge.
Id. at 56, 276 P.3d at 625 (emphasis added); see also Gonzalez,
128 Hawaiʻi at 324, 288 P.3d at 798 (affirming the reasoning in
Nesmith that state of mind is required “to alert the defendant[]
of precisely what they need to defend against to avoid a
conviction”) (emphasis added); State v. Van Blyenburg, 152
Hawaiʻi 66, 74, 520 P.3d 264, 272 (2022) (“The purpose of these
notice requirements is . . . to safeguard an accused’s
fundamental right to know what they must defend against to avoid
conviction.”).
12 In Nesmith, we did not require the charging instrument to affirmatively state that the offense was a strict liability offense for which no state of mind was required.
29
*** FOR PUBLICATION IN WEST’S HAWAI I REPORTS AND PACIFIC REPORTER ***
The reasoning in Nesmith and Gonzalez is inapplicable
here. A sentencing enhancement factor only applies after a
criminal defendant has been properly convicted of the underlying
offense. Accordingly, notice of a requisite state of mind for a
sentencing enhancement factor does nothing to help a criminal
defendant understand how to avoid a conviction. Once a
conviction has been obtained however, the defendant’s due
process interest in notice of the mens rea is reduced because
the risk of an erroneous conviction has already passed. Not
requiring a charging instrument to allege the state of mind for
sentencing enhancement therefore does not violate Nesmith and
Gonzalez. Consistent with this position, the jury here was
instructed to answer the interrogatories only after finding
Smith guilty on the underlying charges.
Accordingly, we hold that due process is satisfied
when the charging instrument gives a criminal defendant notice
that a sentence enhancement will be sought if convicted under
the predicate offense and contains sufficient allegations to
support its application. Here, the Indictment charged in both
Counts 1 and 2 that “[Smith] is subject to sentencing in
accordance with Section 706-660.1, Hawaiʻi Revised States, where
he had a firearm in his possession or threatened its use or used
the firearm while engaged in the commission of the felony
offense, whether the firearm was loaded or not, and whether
30
*** FOR PUBLICATION IN WEST’S HAWAI I REPORTS AND PACIFIC REPORTER ***
operable or not.” Smith was given sufficient notice that he
could be sentenced under HRS § 706-660.1 if he was convicted
under either Count 1 or 2, such that due process was not
offended by the State’s failure to allege a state of mind for
the sentencing enhancement.
Even if due process did require the Indictment to
allege a state of mind for a sentencing enhancement factor under
HRS § 706-660.1, due process would nevertheless be satisfied
here because the record clearly established that, on remand,
Smith had actual knowledge of the required state of mind for the
sentencing enhancement to apply. See State v. Israel, 78 Hawaiʻi
66, 71, 890 P.2d 303, 308 (1995) (“Furthermore, although it is
true that if a defendant actually knows the charges against him
or her, that defendant’s constitutional right to be informed of
the nature and cause of the accusation is satisfied, State v.
Tuua, 3 Haw. App. 287, 292, 649 P.2d 1180, 1184 (1982), in order
for a defendant’s article I, section 14 right to be deemed
satisfied on that basis, the record must clearly demonstrate the
defendant’s actual knowledge.”). Smith was already tried,
convicted, and sentenced pursuant to the very charges he now
challenges on remand. Indeed, he participated in the first
trial, where the jury was instructed:
If you find the defendant Guilty as to Murder in the
Second Degree or Manslaughter (Extreme Mental or Emotional
31
*** FOR PUBLICATION IN WEST’S HAWAI I REPORTS AND PACIFIC REPORTER ***
Disturbance), you shall answer the following interrogatory.
Your decision must be unanimous.
Has the prosecution proved beyond a reasonable doubt
that the defendant intentionally used and/or threatened to
use a firearm, whether the firearm was loaded or unloaded,
operable or inoperable, while engaged in the commission of
the offense of Murder in the Second Degree or Manslaughter
(Extreme Mental or Emotional Disturbance)?
(Emphasis added.)
Moreover, he did not suggest in his testimony there
that he did not understand that he possessed a firearm or that
he did not intend to use it; rather, he asserted that he acted
in self-defense.
We cannot imagine what more notice or actual knowledge
due process could require. As we have explained,
The purpose of these notice requirements is not to
facilitate obtuse technical arguments about what is and
what is not an element of a crime, or about what complex
statutory definitions should or should not be included in a
charging document. It is, rather, to safeguard an
accused’s fundamental right to know what they must defend
against to avoid conviction.
Van Blyenburg, 152 Hawaiʻi at 74, 520 P.3d at 272; State v.
Aquino, 154 Hawaiʻi 388, 395, 550 P.3d 1246, 1253 (2024) (“Notice
plays the central role in evaluating challenges to an
indictment, information, and complaint.”).
Smith cannot reasonably contend now on remand that he
does not “know what [he] must defend against to avoid
conviction.” Van Blyenburg, 152 Hawaiʻi at 74, 520 P.3d at 272.
Due process is satisfied.
32
*** FOR PUBLICATION IN WEST’S HAWAI I REPORTS AND PACIFIC REPORTER ***
We note that this outcome is further supported by the
Motta/Wells rule, which calls for a liberal construction of
charging instruments when a criminal defendant brings an
untimely challenge to the sufficiency of a charge. State v.
Motta, 66 Haw. 89, 657 P.2d 1019 (1983); State v. Wells, 78
Hawaiʻi 373, 894 P.2d 70 (1995).
As we have explained,
When a criminal defendant challenges the sufficiency of a
charge in a timely manner, an appellate court will uphold
that charge if: (1) it contains the elements of the
offense; and (2) it sufficiently apprises the defendant of
what the defendant must be prepared to meet. State v.
Mita, 124 Hawaiʻi 385, 390, 245 P.3d 458, 463 (2010); State
v. Jendrusch, 58 Haw. 279, 283, 567 P.2d 1242, 1245 (1977).
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.” Mita, 124 Hawaiʻi
at 390, 245 P.3d at 463 (citation omitted).
However, when a defendant challenges the sufficiency
of a charge for the first time on appeal, an appellate
court will apply a more liberal standard of review, called
the Motta/Wells rule. See, e.g., State v. Merino, 81
Hawaiʻi 198, 213, 915 P.2d 672, 687 (1996) (explaining that
the Motta/Wells rule applies to challenges to oral charges,
informations, and complaints raised for the first time on
appeal). Under the Motta/Wells rule, charges challenged
for the first time on appeal are presumed valid. Wheeler,
121 Hawaiʻi at 399-400, 219 P.3d at 1186-87. 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. Motta, 66 Haw. at 91,
657 P.2d at 1020.
Kauhane, 145 Hawaiʻi at 369-70, 452 P.3d at 366-67.
Here, Smith challenges the sufficiency of the
sentencing enhancements contained in Counts 1 and 2 of the
Indictment for the first time on remand after appeal. The
policy reasons that support applying the Motta/Wells rule to
33
*** FOR PUBLICATION IN WEST’S HAWAI I REPORTS AND PACIFIC REPORTER ***
appeals that raise untimely challenges to the sufficiency of
charges are equally present here. See State v. Tran, 154 Hawaiʻi
211, 225, 549 P.3d 296, 310 (2024).
We conclude that both prongs of the Motta/Wells rule are
satisfied here. Regarding the first prong, the state of mind for
the sentencing enhancement alleged here is not an “element of an
offense,” as previously discussed. Regarding the second prong,
Smith does not allege any prejudice from the alleged deficiency of
the Indictment. See Kauhane at 373, 452 P.3d at 370.
Accordingly, the ICA correctly vacated the circuit
court’s order striking the sentencing enhancements from Counts 1
and 2.
V. CONCLUSION
For the foregoing reasons, we affirm the ICA’s
February 19, 2025 Judgment on Appeal and remand the case to the
circuit court for further proceedings consistent with this
opinion.
Andrew M. Kennedy /s/ Mark E. Recktenwald (Jason R. Kwiat
on the briefs) /s/ Todd W. Eddins for petitioner
/s/ Lisa M. Ginoza
Charles E. Murray III
for respondent /s/ Vladimir P. Devens
34