ICA Delves into the Difference Between Possession and Ownership of Firearms.

 State v. Slavik (ICA October 27, 2021)

Background. Nikolaus Slavik was charged with carrying or possessing a loaded firearm on a public highway (HRS § 134-26(a)); permits to acquire (HRS §§ 134-2 and 134-17); the offense of mandatory registration of firearms (HRS §§ 134-3(b) and 134-17); and place to keep ammunition (HRS § 134-27(a)). Slavik moved to dismiss the counts because the complaint failed to aver mens rea over the element that at the time of possession, Slavik “knew or recklessly disregarded the substantial and unjustifiable risk, that the object was a prohibited item.” The circuit court, with the Hon. Judge Robert D. S. Kim presiding, denied the motion.

 

At trial, Officer Henry Ivy testified that one summer morning he patrolling in the Kau District on the Big Island. He came across Slavik sleeping in a vehicle on the side of the road. Officer Ivy approached the car on the passenger side. The window was down. Slavik’s hand was on top of the pistol. The police work up Slavik and arrested him. During a pat-down search at the station, police came across a .22 caliber round of ammunition. The prosecution also presented evidence that Slavik did not have a permit to acquire the pistol.

 

Slavik moved for a judgment of acquittal on the grounds that the prosecution failed to establish ownership of the firearm; especially for the permits-to acquire and registration offenses. The motion was denied. Slavik was found guilty and sentenced to ten years imprisonment. He appealed.

 

Possession of a Loaded Firearm on a Highway and Place to Keep Requires that the Defendant was Reckless About the Fact that the Possessed Object was a Firearm. A defective charge “implicates an accused’s rights under the Hawai'i Constitution, article I, section 5, 10 and 14.” State v. Baker, 146 Hawai'i 299, 305, 463 P.3d 956, 962 (2020). No conviction can be sustained when the charge is defective. State v. Wheeler, 121 Hawai'i 383, 391, 219 P.3d 1170, 1178 (2009). The elements of an offense include the conduct, attendant circumstances, and the result of the conduct. HRS § 702-205. The state of mind requirement is not an element but is an “essential fact” that must be pleaded. State v. Nesmith, 127 Hawai'i 48, 55, 276 P.3d 617, 624 (2012). Defective pleadings require the court to dismiss the charge without prejudice. State v. Gonzalez, 128 Hawai'i 314, 324, 288 P.3d 788, 798 (2012).

 

Not a case of Strict Liability. Slavik argued the offenses of carrying or possessing a loaded firearm on a public highway in violation of HRS § 134-26 and place to keep ammunition in violation of HRS § 134-27 were deficient and should have been dismissed before trial. These offenses do not expressly include a state of mind. Id. That means that the default states of mind of intentional, knowing, or reckless apply to each element of the offense, HRS § 702-204, unless “a legislative purpose to impose absolute liability . . . plainly appears.” HRS § 702-212(2). The ICA agreed with Slavik that there was nothing in the statutory language or legislative history suggesting a legislative purpose to impose strict or absolute liability for these offenses. Accordingly, the default states of mind applied.

 

The Counts Defective for Failing to Include Mens Rea on the Element that the Object was a Firearm. Count 1—possession of a loaded firearm on a public highway—averred that Slavik intentionally or knowingly possessed “an/or carried in a vehicle any firearm loaded with ammunition on a public highway.” Count 5 averred that Slavik “intentionally and/or knowingly possessed an item knowing it was ammunition, and he intentionally, knowingly, and/or recklessly” was not licensed to carry the pistol, revolver, or ammunition.

 

The conduct element in both offenses is possession. Possession requires a voluntary act and, thus, “some level of knowledge is required[.]” State v. Jenkins, 93 Hawai'i 87, 110, 997 P.2d 13, 36 (2000). According to the ICA, Jenkins gives us a two-pronged test when it comes to possession:

 

(1) the voluntary act of “possession” of an object itself is, by way of HRS § 702-202, satisfied where an individual acts knowingly with respect to his or her conduct; and (2) the requisite state of mind with respect to the attendant circumstances—i.e., the particular qualities of the object that make it illegal to possess it—is, by way of HRS § 702-204, satisfied by a reckless state of mind. Thus, as applied, to prove the “voluntary act” of possession, the prosecution must first adduce evidence that the defendant knowingly procured or received an object, or was aware of his or her control of that object for a sufficient period to have terminated possession. Second, to prove the requisite state of mind regarding the particular qualities of the object, the prosecution must, at the very least, adduce evidence that the defendant possessed the object in reckless disregard of the substantial and unjustifiable risk that it was a firearm.

 

Id.

 

While the prosecution alleged in Count 1 that Slavik “intentionally or knowingly” possessed the firearm, it did not plead that Slavik recklessly disregarded the substantial and unjustifiable risk that the object he possessed was a firearm. In Count 5 the prosecution failed to plead the reckless state of mind for the ammunition. The ICA held that Counts 1 and 5 were defective and must be dismissed without prejudice.

 

“Possession” is not the Same thing as “Acquiring Ownership.” Count 2 alleged failing to obtain a permit to acquire in violation of HRS § 134-2(a) and Count 3 alleged failing to register the firearm in violation of HRS § 134-3(b). Both offenses require proof beyond a reasonable doubt that Slavik “acquired ownership” the firearm. Id.

 

“‘Acquire’ means ownership of.” HRS § 134-1. Ownership is undefined so the ICA resorted to a legal dictionary. “Ownership” generally means the “bundle of rights allowing one to use, manage, and enjoy property, including the right to convey it to others. . . . Ownership implies the right to possess a thing, regardless of any actual or constructive control. Ownership rights are general, permanent, and heritable[.]” Black’s Law Dictionary 1332 (11th ed. 2019).

 

The ICA agreed that the prosecution failed to present evidence that Slavik “acquired ownership” of the gun. In doing so, it rejected the prosecution’s argument that proof of possession makes a prima facie showing of ownership leaving it up to the defense to rebut. This is a criminal case. “[T]he burden is always upon the prosecution to establish every element of crime by proof beyond a reasonable doubt, never upon the accused to disprove the existence of any necessary element.” State v. Cuevas, 53 Haw. 110, 113, 488 P.2d 322, 324 (1971). Thus, the ICA held that “evidence of possession of a firearm, without more, is insufficient to support a justifiable inference that a defendant acquired ownership of the firearm.” The ICA noted that the statutory scheme for firearms in HRS Chapter 134 distinguishes different offenses of varying severity between acts of possession and failure to acquire ownership. And so, the ICA reversed Counts 2 and 3.