State v. Bovee., 139 Haw. 530

Background

On Nov. 26, 2013, undercover HPD officer purchased a box containing crystal methamphetamine after interaction with codefendant Apilado; Bovee carried the box from a tent and delivered it during the transaction.
Bovee testified he was a reluctant courier who did not know the box contained drugs; his defense was lack of awareness of the character (methamphetamine) of the item he distributed.
Bovee and Apilado were charged with second-degree methamphetamine trafficking under HRS § 712-1240.8 (then in effect), which criminalized knowingly distributing methamphetamine in any amount.
At trial the court gave a single-element instruction combining conduct and attendant-circumstance into one element and omitted the HAWJIC definition of “knowingly”; both parties objected.
Jury convicted Bovee; circuit court sentenced him under the repealed statute; ICA affirmed.
The Hawaiʻi Supreme Court vacated the convictions and remanded for further proceedings because the jury instruction could reasonably be read to relieve the State of proving that Bovee knew the object was methamphetamine; remand proceedings must follow Act 231 (which reclassified methamphetamine distribution under HRS § 712-1242(1)(c)).

Issues

Issue	Plaintiff's Argument (State)	Defendant's Argument (Bovee)	Held
Whether the trial court’s single-element instruction improperly relieved the State of proving mens rea as to attendant circumstances (that the object was methamphetamine).	Instruction was adequate; jury could understand that “knowingly” applied to both distribution and that the object was methamphetamine.	Instruction only required awareness of the conduct (distributing an object), not awareness that the object was methamphetamine; that ambiguity prejudiced his defense.	Court held the instruction was prejudicially insufficient: statute has distinct conduct and attendant-circumstance elements and "knowingly" must apply to each; reversal and remand required.
Whether omission of statutory/HAWJIC definition of “knowingly” rendered instruction harmless.	Omission was not harmful because instructions were substantively correct.	Omission compounded ambiguity and harmed his substantial rights given his defense.	Court held omission exacerbated ambiguity and error was not harmless beyond a reasonable doubt.
Whether precedent (Aganon) permitted affirmance despite conflation of elements.	Aganon supports affirmance where instructions are substantively correct.	Aganon does not excuse conflation when it may permit conviction on only one element with mens rea.	Court distinguished Aganon and concluded it actually supports reversal where conflation allows conviction based on a single element with mens rea.
Applicability of Act 231 (2016) after vacatur/remand: whether case should be remanded for resentencing under new statute.	N/A at trial; ICA did not remand for resentencing after affirmance.	Bovee argued remand for resentencing was required under Act 231 §70.	Because conviction is vacated and case remanded for retrial, Act 231 §70(4)(b) applies: on remand prosecution proceeds under reclassified statute (HRS §712-1242(1)(c)).

Key Cases Cited

State v. Aganon, 97 Hawaiʻi 299, 36 P.3d 1269 (2001) (error in conflating elements is reversible when it permits conviction on one element with mens rea)
State v. Jenkins, 93 Hawaiʻi 87, 997 P.2d 13 (2000) (attendant circumstances include the object’s attributes that make possession criminal)
State v. Valentine, 93 Hawaiʻi 199, 998 P.2d 479 (2000) (identifies distinct conduct and attendant-circumstance elements and required mens rea)
State v. Frisbee, 114 Hawaiʻi 76, 156 P.3d 1182 (2007) (standard for reviewing jury instruction error and harmless-error analysis)
State v. Gonsalves, 108 Hawaiʻi 289, 119 P.3d 597 (2005) (harmless-error framework cited)
State v. Culkin, 97 Hawaiʻi 206, 35 P.3d 233 (2001) (trial judge must present clear, correct legal issues to jury)
State v. Kinnane, 79 Hawaiʻi 46, 897 P.2d 973 (1995) (duty to clearly instruct jury)
State v. Schofill, 63 Haw. 77, 621 P.2d 364 (1980) (government must prove the substance is as charged when sale is consummated)
State v. Alangcas, 134 Hawaiʻi 515, 345 P.3d 181 (2015) (statutes in pari materia are construed together)