                                                               Electronically Filed
                                                               Supreme Court
                                                               SCWC-27897
                                                               29-MAY-2012
                              NO. SCWC-27897                   09:58 AM

             IN THE SUPREME COURT OF THE STATE OF HAWAI#I


           STATE OF HAWAI#I, Respondent/Plaintiff-Appellee,

                                     vs.

            LLOYD PRATT, Petitioner/Defendant-Appellant.


           CERTIORARI TO THE INTERMEDIATE      COURT OF APPEALS
                  (ICA NO. 27897; CR. NO.      HC 04-147)
                  (ICA NO. 27898; CR. NO.      HC 04-169)
                  (ICA NO. 27899; CR. NO.      HC 04-229)

       ORDER GRANTING MOTION FOR RECONSIDERATION IN PART
       (By: Recktenwald, C.J., Nakayama, and Duffy, JJ.,
    with Acoba, J., dissenting, with whom McKenna, J., joins)

           Upon consideration of Petitioner/Defendant-Appellant
Lloyd Pratt’s motion for reconsideration filed on May 21, 2012,
           IT IS HEREBY ORDERED that motion is granted in part.
The published opinion filed on May 11, 2012 is amended as
follows:
           Page 11, footnote 9, now reads:
           Pratt does not pursue the RFRA, ex post facto, or stare
           decisis claims in his application for writ of certiorari,
           thus, this opinion does not fully articulate these
           arguments. Pratt’s argument as to the rule of lenity is
           reviewed in Section III.B., infra.

           On Page 18, footnote 11 is added.         The additional

footnote reads:
           Pratt also argues that the rule of lenity precludes
           conviction. The rule of lenity is a rule of statutory
           construction. State v. Shimabukuro, 100 Hawai#i 324, 327, 60
           P.3d, 274, 277 (2002) (“Where a criminal statute is
           ambiguous, it is to be interpreted according to the rule of
          lenity.”). Pratt does not argue that the regulation under
          which he was convicted is ambiguous, but rather that the
          constitutional privilege is ambiguous. Pratt does not cite,
          and the court was unable to find, any authority for applying
          the rule of lenity to constitutional affirmative defenses.
          The court therefore agrees with the conclusion of the trial
          court and ICA that the rule of lenity does not apply in
          Pratt’s case.

          An Amended Opinion will be filed contemporaneously with

this Order.

          The motion is denied in all other respects.

          DATED: Honolulu, Hawai#i, May 29, 2012.

Daniel G. Hempey for                 /s/ Mark E. Recktenwald
petitioner/defendant-
appellant                            /s/ Paula A. Nakayama

                                     /s/ James E. Duffy, Jr.


                             DISSENT
          (By: Acoba, J., with whom McKenna, J., joins)

          For the reasons set forth in my concurrence and dissent

to this court’s May 11, 2012 opinion, I would grant the motion

for reconsideration, vacate the judgment of conviction and remand

the case for a new trial.

                                        /s/ Simeon R. Acoba, Jr.

                                        /s/ Sabrina S. McKenna




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