State v. Jenkins (Dissenting Opinion by J. Watanabe)

OPINION BY WATANABE, J.,

DISSENTING IN PART AND CONCURRING IN PART

I have grave concerns about the majority's overruling of State v. Auwae, 89 Hawaii 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 Hawaii 46, 55, 868 P.2d 1193, 1202, I believe that the more specific requirement in Hawaii 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).

Additionally, 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 31. 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 33. 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.

In all other respects, I concur with the majority.