93 Haw. 87 - State v. Jenkins

How this case has been cited

Cited by 144 later decisions — most recently November 2024 · most notably Westfield Insurance v. Galatis (2003), In the Interest of Doe (2001)

1 federal appellate · 1 district · 142 state decisions

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

¶1Opinion by

WATANABE, J.,

¶2Dissenting in part and Concurring in part.

¶3I have grave concerns about the majority’s overruling of State v. Auwae, 89 Hawai'i 59, 968 P.2d 1070 (App.1998), and State v. Mundell, 8 Haw.App. 610, 822 P.2d 23 (1991), and the establishment by the majority of a new “two-pronged analysis” for determining whether a felon is in “possession” of a firearm. I believe that the new test adopted by the majority will lead to confusion, especially in cases such as this one, which involves constructive, as opposed to actual, possession. Moreover, since it is a well-established rule of statutory construction that “where there is a ‘plainly irreconcilable’ conflict between a general and a specific statute concerning the same subject matter, the specific will be favored,” Richardson v. City and County of Honolulu, 76 Hawai'i 46, 55, 868 P.2d 1193, 1202, I believe that the more specific requirement in Hawai'i Revised Statutes (HRS) § 702-202 (1993) that possession must be “knowing” must trump the more general default scienter requirement set forth in HRS § 702-204 (1993).

¶4Additionally, although the issue has not been raised on appeal, I am troubled by whether double jeopardy principles allow Jenkins to be convicted and punished for both being a felon in possession of a firearm or ammunition and failing to confine a firearm or ammunition to his “place of business, residence, or sojourn.” The majority states that “it is a material element of place to keep pistol or revolver that the firearm at issue be away from the possessor’s ‘place of business, residence, or sojourn.’ ” Majority Opinion at 108, 997 P.2d at 34. Therefore, according to the majority, the jury must be instructed that it is the State’s burden to prove beyond a reasonable doubt that “Jenkins possessed or carried firearms away from his ‘place of business, residence, or sojourn.’ ” Id. at 109, 997 P.2d at 35. However, as a convicted felon, Jenkins was not allowed to possess any firearm or ammunition at any time or place. Therefore, I believe that a serious double jeopardy issue is presented if Jenkins is convicted and sentenced for violating both HRS § 134—7(b) and HRS § 134-6(c), based on the same conduct of possessing a firearm or ammunition. I believe this issue should be briefed and addressed on remand.

¶5In all other respects, I concur with the majority.