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                                                                Electronically Filed
                                                                Supreme Court
                                                                SCWC-XX-XXXXXXX
                                                                31-JAN-2020
                                                                10:00 AM




             IN THE SUPREME COURT OF THE STATE OF HAWAIʻI

                            ---o0o---
________________________________________________________________

           STATE OF HAWAIʻI, Respondent/Plaintiff-Appellee,

                                      vs.

         VICENTE L. DOMUT, also known as VICENTE DOMUT,
                 Petitioner/Defendant-Appellant.
________________________________________________________________

                              SCWC-XX-XXXXXXX

         CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
  (CAAP-XX-XXXXXXX; CASE NOS. 2DTA-15-01298 and 2DTC-14-004621)

                              JANUARY 31, 2020

             McKENNA, POLLACK, AND WILSON, JJ., WITH
  RECKTENWALD, C.J., CONCURRING IN PART AND DISSENTING IN PART,
                  WITH WHOM NAKAYAMA, J., JOINS

                  OPINION OF THE COURT BY McKENNA, J.

                              I.   Introduction

       On April 20, 2016, Vicente Domut (“Domut”) was convicted at

a bench trial in the District Court of the Second Circuit

Wailuku Division (“district court”) of Driving Without a License

in violation of Hawaiʻi Revised Statutes (“HRS”) § 286-102(a)
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(Supp. 2015) and of No Motor Vehicle Insurance in violation of

HRS § 431:10C-104(a) (2005) and HRS § 431:10C-117(a)(2),(3),(5)

(Supp. 2006).     Despite requesting a continuance for sentencing,

Domut was immediately sentenced to (1) a jail term of 180 days

for Driving Without a License as a repeat offender; (2) a fine

of $1,500 and $37 in fees for No Motor Vehicle Insurance; and

(3) suspension of any driver’s license for one year.             Domut

appealed the district court’s April 20, 2016 judgment to the

Intermediate Court of Appeals (“ICA”), which in a summary

disposition order, State v. Domut, CAAP-XX-XXXXXXX, at 1 (App.

July 30, 2018) (SDO), affirmed the district court’s judgment.

       Domut raises two questions on certiorari.          First, he

contends the ICA erred because the State of Hawai‘i (“State”)

failed to prove beyond a reasonable doubt that Domut was not in

constructive possession of a license from Mexico or Canada,

which would have exempted him from licensing requirements

pursuant to HRS § 286-105 (2007).          We addressed this issue in

State v. Castillon, 144 Hawaiʻi 406, 443 P.3d 98 (2019).              We held

that a defendant bears the initial burden to produce evidence to

support a Hawaiʻi driver’s license exemption based on possession

of a valid license from Canada or Mexico.           Domut did not produce

any evidence of the applicability of the exemption to him.



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Therefore, his first question on certiorari is without merit and

we do not further address this issue.

          In his second question on certiorari, Domut contends the

ICA erred in concluding that he failed to meet his burden of

production to raise evidence of a “good faith lack of knowledge”

defense under HRS § 431:10C-117(a)(4)(C),1 and that the burden

had shifted to the State to disprove the defense beyond a

reasonable doubt, citing to State v. Bolosan, 78 Hawaiʻi 86, 890

P.2d 673 (1995).           In that case, we held that “if a driver

borrows an uninsured vehicle, the State must prove beyond a

reasonable doubt that the driver actually knew that the vehicle

was uninsured at the time [the driver] was operating it.”

Bolosan, 78 Hawaiʻi at 90-91, 890 P.2d at 677-78.

          Domut contends that evidence adduced by the State that he

was transporting two passengers in the vehicle, that he was not

on that date and never was the registered owner of the vehicle,

1
          HRS § 431:10C-117(a)(4)(C) provides:

                (4) Any person cited under this section shall have an
                opportunity to present a good faith defense, including but
                not limited to lack of knowledge or proof of
                insurance. The general penalty provision of this section
                shall not apply to:

                . . . .

                (C)       Any operator of a borrowed motor vehicle if the
                          operator holds a reasonable belief that the subject
                          vehicle is insured . . . .




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and that the vehicle’s registration was current provided

evidence of the “good faith lack of knowledge defense,” shifting

the burden to the State to disprove the defense beyond a

reasonable doubt.

          As indicated by the ICA, we held in State v. Lee, 90 Hawaiʻi

130, 976 P.2d 444 (1999), that the defendant bears the burden of

production that they2 had borrowed a vehicle owned by another.

Lee, 90 Hawaiʻi at 140, 976 P.2d at 454.             Although evidence of

facts establishing a defense may also be supplied by the

prosecution, State v. Locquiao, 100 Hawaiʻi 195, 206, 58 P.3d

1242, 1253 (2002), Domut did not meet his burden of producing

evidence that he had borrowed a vehicle owned by another.

Therefore, we reject his argument.

          But in his second question on certiorari, Domut also

alleges the ICA erred by requiring him to present evidence of a

“borrower/lender relationship” with the registered owner of the

vehicle to assert the “good faith lack of knowledge” defense.

In this regard, we agree that the ICA erred.               HRS § 431:10C-

117(a)(4)(C) allows the “good faith lack of knowledge” defense

when an operator reasonably believes a “borrowed motor vehicle”

is insured.        An operator could have such a belief without
2
      “They, them, and their” are used as singular pronouns when (1) the
gender identity of the person referred to is unknown or immaterial; or (2)
those are the pronouns of a specific person.


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“borrowing” the motor vehicle from the registered owner.              This

error does not, however, require vacating Domut’s No Motor

Vehicle Insurance conviction, as there was no evidence of

“borrowing” that would have shifted the burden to the State to

disprove the defense.

       We notice plain error affecting substantial rights,

however, that requires vacating Domut’s convictions for Driving

Without a License and No Motor Vehicle Insurance.             Domut was

entitled to a jury trial on the Driving Without a License

charge.    During the jury trial waiver colloquy, the district

court advised Domut that he had a right to jury trial on only

one of the charges, and it did not inform him that he was

entitled to a jury trial on the Driving Without a License

charge.    For this reason alone, there was no valid waiver of his

right to jury trial on this charge.          The district court’s

advisement during the jury trial colloquy was also erroneous and

confusing for other reasons.        Thus, the record does not reflect

a knowing and intelligent waiver of Domut’s right to a jury

trial.    State v. Gomez-Lobato, 130 Hawaiʻi 465, 469, 312 P.3d

897, 901 (2013).

       Accordingly, the district court’s judgment as well as the

ICA’s judgment on appeal are vacated and the case is remanded to



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the district court for further proceedings consistent with this

opinion.

                                 II.   Background

A.        Factual background and district court proceedings

          On November 17, 2014, Domut was driving a motor vehicle

carrying two passengers on Haleakalā Highway.               Domut was stopped

by Maui County Police Officer Lawrence Becraft (“Officer

Becraft”) for speeding and not using a turn signal.                When asked

by Officer Becraft, Domut did not produce a driver’s license,

proof of motor vehicle insurance, or proof of self-insurance.

Officer Becraft issued Domut two citations, including the

citation 2DTC-14-004621, one for the subject Driving Without a

License and No Motor Vehicle Insurance charges.3               The State

charged Domut for those offenses in an amended complaint:

               COUNT ONE:

               That on or about the 17th day of November, 2014, in the
               Division of Wailuku, County of Maui, State of Hawaii,
               VICENTE DOMUT having been convicted of Driving Without a
               License (H.R.S. Section 286-102), two or more times within
               a five-year period of the instant offense, did
               intentionally, knowingly or recklessly operate a motor
               vehicle of a category listed in Section 286-102 of the
               Hawaii Revised Statutes without first being appropriately
               examined and duly licensed as a qualified driver of said
               category of motor vehicles, thereby committing the offense
               of Driving Without a License in violation of Sections 286-
               102 and 286-136(b) of the Hawaii Revised Statutes.

3
      Citation 2DTC-14-004621 was issued for the two subject traffic crimes,
while citation 2DTI-14-018886 was issued for two non-criminal traffic
infractions: exceeding the speed limit by 22 miles per hour in violation of
HRS § 291C-102(a)(1) (2007) and driving without a license on the person in
violation of HRS § 286-116(a) (2007).


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               COUNT TWO:

               That on or about the 17th day of November, 2014, in the
               Division of Wailuku, County of Maui, State of Hawaii,
               VICENTE DOMUT having previously committed the offense of no
               Motor Vehicle Insurance (H.R.S. Section 431:10C-104) two or
               more times within a five-year period of the instant
               offense, did intentionally, knowingly, or recklessly
               operate or use a motor vehicle bearing license plate number
               LAH091, upon any public street, road, or highway of this
               State without said motor vehicle being insured under a
               motor vehicle insurance policy, thereby committing the
               offense of No Motor Vehicle Insurance in violation of
               Sections 431:10C-104(a) and 431:10C-117(a)(2), (3), (5) of
               the Hawaii Revised Statutes.

          On November 5, 2015, Domut appeared before the district

court.4       The following colloquy took place:

               COUNSEL: [Deputy Public Defender] for . . . with Mr. Domut
               in receipt of complaint ending 1298, failure to appear.
               The other ending 4621, Driving Without a License, no motor
               vehicle insurance. Waiving reading both matters. Um . . .
               I note that he does have a jury trial right. One second
               . . . . He would waive jury trial right.

               COURT:   Okay, your name, sir.

               DEFENDANT:   Vicente Domut.

               COURT: Okay, Mr. Domut. Um, on some, on one of the
               charges you have a right to a trial by a jury. A trial by
               a jury is one in which a jury is picked by you, your
               attorney, and the prosecutor. Twelve people from the
               community are picked to be the jurors. The jury . . . ah
               . . . all twelve members must find you guilty unanimously
               in order to convict you of a crime.

               DEFENDANT:   Yes, sir.

               COURT: If all twelve do not find you guilty, then you’re
               not guilty of that particular crime. Um . . . if you
               waive, that is, give up your right to a trial by a jury,
               and it will be a district court judge and a judge by him –
               or herself will have uh will preside over a trial if we
               have a trial. Uh . . . it’s my understanding from your
               attorney that you want to waive your right to a trial by a
               jury. Is that what you want to do?


4
          The Honorable Douglas J. Sameshima presided.


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               DEFENDANT:   Yes, sir.

               COURT:   You understand your right to a trial by jury?

               DEFENDANT:   Yes, sir.

               COURT:   And you still want to waive it.

               DEFENDANT:   Yes.

               COURT:   This is your decision?

               DEFENDANT:   Yes, sir.

               COURT:   And you’re entering your waiver uh of your own free
               will?

               DEFENDANT:   Yes, sir.

               COURT: Based on my questions, I find that the defendant
               has knowingly, voluntarily and intelligently waived his
               right to a trial by a jury. I’ll accept the not guilty
               plea entered by your attorney.

The district court then entered an order indicating Domut had

waived his right to a jury trial and had pled not guilty.

          On April 20, 2016, the district court5 conducted a bench

trial.

          The State first presented Officer Becraft as a witness.              In

summary, Officer Becraft testified as follows.               On November 17,

2014, he stopped Domut on the Haleakalā Highway, a public

roadway, for speeding and not using a turn signal.                Domut was in

the driver’s seat and two passengers were in the vehicle.

Officer Becraft asked Domut for his driver’s license and vehicle

5
      The Honorable Blaine Kobayashi presided over the trial and sentencing.
The trial was for two district court cases consolidated by agreement for
purposes of trial: (1) 2DTC-14-004621, prosecution for driving without a
license and driving without motor vehicle insurance; and (2) 2DTA-15-01298,
prosecution for failure to appear in court in violation of HRS § 803-6(e)
(2014). Domut’s failure to appear conviction was not appealed to the ICA and
is not a part of this certiorari proceeding.

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registration.        Domut gave him a Hawaiʻi State I.D. and “nothing

else was current except the registration may have been current.”

Domut stated “he didn’t have a license on him.”               When Officer

Becraft asked Domut for his insurance card, Domut did not

produce the card, did not provide any proof that he was self-

insured, and did not explain why he did not have insurance.

Officer Becraft then issued Domut two citations, including a

citation for Driving Without a License and No Motor Vehicle

Insurance.

          Juvylyn Garalde (“Garalde”), a customer service

representative from the Department of Motor Vehicles (“DMV”),

testified next for the State.            Garalde interpreted a database

printout of the title and registration form for the vehicle

Domut was driving on November 17, 2014, which indicated that

Jose Vasquez-Polito obtained title to that vehicle on October

28, 2013 from Felicity Rogust and that there had been no

subsequent transfers of title to the vehicle.6

          Domut did not present any evidence.


6
      The State also moved into the record (1) “a notice of entry of judgment
from case ending in 1926 relating to a Vicente [Domut] ending in 11948
reflecting a driver’s license conviction from 8/27/13;” (2) a notice of entry
of judgment from a “case ending in 7292 for a Vicente Domut party I.D. 119548
reflecting a driving without a license conviction 3/22/2012;” and (3) “a
notice of entry of judgment for a case ending in 5534 for a Vicente Domut
party I.D. 119548 reflecting a driving without license conviction on
12/13/2011.”



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       During closing argument, with respect to the No Motor

Vehicle Insurance charge, Domut contended the “good faith lack

of knowledge” defense applied because the evidence demonstrated

he did not own the car he was driving when cited.             Domut argued

the State failed to disprove the defense because it did not

present evidence demonstrating he knew the car was uninsured or

that he should have been on notice to ask whether the car was

insured before driving it.

       The district court rejected Domut’s arguments and adjudged

Domut guilty on all counts and immediately proceeded to

sentencing.     The State indicated it was seeking a one-year term

of imprisonment for the Driving Without a License conviction, a

fine of $1,500 for the No Motor Vehicle Insurance conviction,

and a one-year suspension of any driver’s license.

       Domut’s counsel requested a continuance of sentencing,

stating,

            You know, at this time, I do not believe that – I believe
            that this is going to be something set for an appeal, and
            you know, I’m not prepared – I can argue sentencing. As
            far as this goes, I would ask to continue sentencing until
            I can – there can be something resolved because I don’t
            believe that – I don’t believe that this is the correct
            ruling. And I don’t believe – I would not like to see Mr.
            Domut do jail time for something that he should not be
            doing jail time for. As far as sentencing goes, if we have
            to proceed today, you know, I understand the prior charges
            before.

The district court did not acknowledge or respond to the request

to continue sentencing.

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          Domut’s counsel then argued that a maximum sentence was

inappropriate because the incident occurred over two years ago,

and since then, Domut had not been driving.               During his

allocution, Domut told the district court that he had been

driving to take his sister-in-law to the doctors for a checkup

on an infection, that he believed the car was insured, and that

he had not driven after being cited.

          The district court stated it did not believe Domut’s

personal situation provided a justification for continuing to

violate the law and imposed a jail term of 180 days for Driving

Without a License, a fine of $1,500 and $37 in fees for No Motor

Vehicle Insurance, and a suspension of any driver’s license for

one year.7       The district court filed a judgment, which reflected

its granting of Domut’s attorney’s oral motion to stay the

sentence pending appeal.8


7
      Domut was also sentenced to a 30-day jail term for the failure to
appear in court conviction.
8
      Despite the judgment staying the sentence, after the ICA’s July 30,
2018 SDO, on August 28, 2018, one day before the ICA’s August 29, 2018
Judgment on Appeal, a different district court judge issued a mittimus
executing Domut’s prison sentence, and Domut was temporarily taken into
custody. The record does not reflect what representations were made to the
judge before the mittimus was issued, but a “stipulation and order for
release” was signed the same day and filed the next day; the record does not
reflect when Domut was released. Execution of sentence was then continued
several times. On May 28, 2019, the State objected to the defense’s oral
motion to continue execution of sentence, and the execution of sentence date
was continued to June 4, 2019. The record again does not reflect what
representations were made to the district court, but the district court again
issued a mittimus to execute the stayed sentence on that date. But later
that day, the State submitted an ex parte motion to recall mittimus, which
                                                              (continued. . .)
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B.        ICA Proceedings

          Domut timely appealed the district court judgment to the

ICA asserting that:          (1) his Driving Without a License

conviction should be reversed because the State failed to prove

Domut did not fall into one or more of the enumerated exemptions

from HRS § 286-105;9 and (2) that his No Motor Vehicle Insurance

conviction should be reversed because the State failed to negate

Domut’s “good faith lack of knowledge” defense.

          With respect to the No Motor Vehicle Insurance conviction,

Domut argued that the following evidence at trial indicated that

Domut borrowed the vehicle and thus raised the “good faith lack



(. . .continued)
was approved, as well as another “stipulation and order” for release, which
was also approved. Both documents indicate that Domut had again been taken
into custody on June 4, 2019; the record is unclear when he was released.

      Defendants convicted of misdemeanors, petty misdemeanors, or law
violations are entitled to bail and a stay of sentence pending appeal. State
v. Kiese, 126 Hawaiʻi 494, 510, 273 P.3d 1180, 1196 (2012). Hence, the
sentencing judge appropriately ordered a stay pending appeal. But according
to the record, although it appears he was quickly released each time, Domut
was twice taken into custody while his appeal remained pending. The district
court issued the first mittimus after the ICA’s SDO, on the day before the
judgment on appeal. But even if the ICA judgment on appeal had been filed a
few days before the first mittimus, under Hawaiʻi Rules of Appellate Procedure
(“HRAP”) Rule 36(c)(1) (2016) and HRS § 602-59(c)(2016 & Supp. 2017), it
would not have been effective until 30 days after its filing at the very
earliest. Prosecuting attorneys, defense counsel, and trial courts should
all ensure that there is an effective judgment on appeal under HRAP Rule 36
that would allow for execution of stayed sentences before attempting to
execute a sentence.
9
      As indicated earlier, this issue was resolved against Domut’s argument
in Castillon, 144 Hawaiʻi 406, 443 P.3d 98, in which we held that a defendant
bears the initial burden to produce “some evidence” to support a Hawaiʻi
driver’s license exemption based on possession of a valid license from Canada
or Mexico, which Domut did not do.

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of knowledge” defense under HRS § 431:10C-117(a)(4)(C): (1)

Domut was transporting two passengers in the vehicle; (2) Domut

was not on that date and never was the registered owner of the

vehicle; and (3) the vehicle’s registration was current.              Citing

Bolosan, Domut asserted that once evidence was adduced that the

vehicle was borrowed, the State was required to prove beyond a

reasonable doubt that Domut actually knew the vehicle was

uninsured at the time he was operating it.           The State failed to

do so, Domut argued.

       Domut contended that the following evidence also

demonstrated that Domut had a reasonable belief the car was

insured:    (1) Domut readily provided Officer Becraft with the

registration information; (2) the safety check, which required

up-to-date insurance, apparently was not expired because Officer

Becraft did not cite Domut for an expired safety check; and (3)

Domut never indicated to Officer Becraft an awareness that the

car was uninsured.

       Citing Lee, 90 Hawaiʻi 130, 976 P.2d 444, the State

responded that Domut bore the burden of production regarding the

“good faith lack of knowledge” defense and failed to do so.                 The

State contended that because Domut did not testify, there was no

evidence he had borrowed the vehicle.          The State maintained that

the district court therefore properly inferred that Domut

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intentionally, knowingly, or recklessly drove the vehicle

without insurance.

       The ICA filed a summary disposition order on July 30, 2018

affirming the district court’s judgment.           Domut, SDO at 1.

Citing Lee and State v. Kahaunaele, 10 Haw. App. 519, 879 P.2d

566 (1994), the ICA held that Domut was required to present some

evidence raising the “good faith lack of knowledge” defense

before the burden shifted to the State.           Domut, SDO at 4.

According to the ICA, the evidence did not indicate any

“borrower/lender relationship” between Domut and the registered

owner of the vehicle sufficient to infer that Domut was a

borrower entitled to the good faith borrower defense.              Domut,

SDO at 5.     The ICA therefore affirmed the district court.

                         III.   Standard of Review

A.     Statutory Interpretation

       “The interpretation of a statute is a question of law

reviewable de novo.”       Ka Paʻakai O Ka ʻĀina v. Land Use Comm’n,

94 Hawaiʻi 31, 41, 7 P.3d 1068, 1078 (2000) (citation omitted).

            When construing a statute, our foremost obligation is to
            ascertain and give effect to the intention of the
            legislature, which is to be obtained primarily from the
            language contained in the statute itself. And we must read
            statutory language in the context of the entire statute and
            construe it in a manner consistent with its purpose.

Id.




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B.     Plain Error

            Hawai‘i Rules of Penal Procedure (HRPP) Rule 52(b) states
            that “[p]lain errors or defects affecting substantial
            rights may be noticed although they were not brought to the
            attention of the court.” Therefore, an appellate court
            “may recognize plain error when the error committed affects
            substantial rights of the defendant.” State v. Staley, 91
            Hawai‘i 275, 282, 982 P.2d 904, 911 (1999) (citation
            omitted).

            The appellate court “will apply the plain error standard of
            review to correct errors which seriously affect the
            fairness, integrity, or public reputation of judicial
            proceedings, to serve the ends of justice, and to prevent
            the denial of fundamental rights.” State v. Nichols, 111
            Hawai‘i 327, 334, 141 P.3d 974, 981 (2006) (quoting State v.
            Sawyer, 88 Hawai‘i 325, 330, 966 P.2d 637, 642 (1998)). An
            appellate court’s “power to deal with plain error is one to
            be exercised sparingly and with caution because the plain
            error rule represents a departure from a presupposition of
            the adversary system — that a party must look to [their]
            counsel for protection and bear the cost of counsel’s
            mistakes.” Nichols, 111 Hawai‘i at 335, 141 P.3d at 982
            (quoting State v. Kelekolio, 74 Haw. 479, 515, 849 P.2d 58,
            74–75 (1993)).

State v. Metcalfe, 129 Hawai‘i 206, 222, 297 P.3d 1062, 1078

(2013).

C.     Waiver of Jury Trial

       The validity of a defendant’s waiver of the right to a jury

trial in a criminal case presents a question of state and

federal constitutional law.        We answer questions of

constitutional law by exercising our own independent

constitutional judgment based on the facts of the case.              Thus,

we review questions of constitutional law under the right/wrong

standard.     State v. Friedman, 93 Hawaiʻi 63, 67, 996 P.2d 268,

272 (2000) (citations and quotation marks omitted).


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       A waiver is the knowing, intelligent, and voluntary

relinquishment of a known right.           Thus, to determine whether a

waiver was voluntarily and intelligently undertaken, this court

will look to the totality of facts and circumstances of each

particular case.        Friedman, 93 Hawaiʻi at 68, 996 P.2d at 273.

                                 IV.   Discussion

A.     There was no evidence that Domut borrowed the vehicle;
       therefore, the burden of disproving the “good faith lack of
       knowledge” defense was never shifted to the State.

       Regarding the No Motor Vehicle Insurance conviction, Domut

contends there was sufficient evidence of the “good faith lack

of knowledge” defense to shift the burden of disproving the

defense to the State.         The “good faith lack of knowledge”

defense under HRS § 431:10C-117(a)(4)(C) and Lee, 90 Hawaiʻi at

139, 976 P.2d at 453, is not an affirmative defense under

HRS § 701-115(3) (2014).10          Bolosan, 78 Hawaiʻi at 89, 890 P.2d at

676 (1995).        Accordingly, it is a non-affirmative defense under

HRS § 701-115(2)(a),11 which the State has the burden of



10
       HRS § 701-115(3) provides:

             (3)    A defense is an affirmative defense if:
                     (a) It is specifically so designated by the Code or
                     another statute; or
                     (b) If the Code or another statute plainly requires
                     the defendant to prove the defense by a preponderance
                     of the evidence.

11
      HRS § 701-115(2)(a) provides: “If the defense is not an affirmative
defense, the defendant is entitled to an acquittal if the trier of fact finds
                                                              (continued. . .)
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disproving beyond a reasonable doubt.           Locquiao, 100 Hawaiʻi at

202, 58 P.3d at 1249.

       Whether a defense is an affirmative or non-affirmative

defense, as set out in HRS § 701-115(2), “[n]o defense may be

considered by the trier of fact unless evidence of the specified

fact or facts has been presented.”           As explained in the

Commentary to HRS § 701-115:         “The Code establishes two classes

of defenses.      As to both, it places an initial burden on the

defendant to come forward with some credible evidence of facts

constituting the defense, unless, of course, those facts are

supplied by the prosecution’s witnesses.”            As indicated in this

commentary, although the defendant has the initial burden to

come forward with some credible evidence of facts constituting

the defense, facts establishing a defense may also be supplied

by the prosecution.        Locquiao, 100 Hawaiʻi at 206, 58 P.3d at

1253.

       The “good faith lack of knowledge” defense to the offense

of No Motor Vehicle Insurance is set forth in HRS § 431:10C-

117(a)(4)(C):

             (4) Any person cited under this section shall have an
             opportunity to present a good faith defense, including but
             not limited to lack of knowledge or proof of insurance.



(. . .continued)
that the evidence, when considered in the light of any contrary prosecution
evidence, raises a reasonable doubt as to the defendant’s guilt . . . .”

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            The general penalty provision of this section shall not
            apply to:
            . . . .
            (C) Any operator of a borrowed motor vehicle if the
            operator holds a reasonable belief that the subject vehicle
            is insured . . . .

Pursuant to the statute, the facts constituting the “good faith

lack of knowledge” defense are that (1) the defendant was the

operator of the subject motor vehicle; (2) the defendant

“borrowed” the subject vehicle; and (3) the defendant held a

reasonable belief that the subject vehicle was insured.

       In this case, there is no dispute regarding (1), that Domut

was the operator of the subject motor vehicle.            With respect to

(3), in Bolosan, we reaffirmed the following holding of the ICA

in Kahaunaele:

            [T]he borrower of a motor vehicle has a statutory right to
            reasonably believe that the borrowed motor vehicle is
            insured. Evidence that the defendant borrowed and operated
            upon a public street a motor vehicle that was not insured
            under a no-fault policy is sufficient evidence to sustain
            [the lack of knowledge defense]. The fact that the
            borrower did not consider whether or not the borrowed motor
            vehicle was insured does not negative [the] defense.
            However, if one or more relevant facts reasonably required
            the borrower to inquire, [they] then had a duty to inquire
            until [they] reasonably believed that the motor vehicle was
            insured. The borrower’s failure to satisfy that duty to
            inquire negatives [the] defense[ ].

Bolosan, 78 Hawaiʻi at 91 n.9, 890 P.2d at 678 n.9 (quoting

Kahaunaele, 10 Haw. App. at 531, 879 P.2d at 571).             In Domut’s

case, there is no evidence of the existence of facts reasonably

requiring Domut to inquire as to whether or not the subject

motor vehicle was insured.        Therefore, pursuant to Bolosan,


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Domut had a statutory right to reasonably believe that the

subject vehicle was insured, but only if the vehicle was

“borrowed.”12

       The issue in this case therefore is whether there is

evidence of (2), that Domut “borrowed” the subject motor

vehicle.

       As argued by the State, in Lee, 90 Hawaiʻi 130, 976 P.2d

444, we noted that the defendant bears the burden of production

that they had borrowed a vehicle owned by another.             90 Hawaiʻi at

140, 976 P.2d at 454 (construing the “good faith lack of

knowledge” defense).       Lee is consistent with HRS § 431:10C-117,

which provides a defendant with “an opportunity to present a

good faith defense.”       In Lee, we rejected the defendant’s

argument that, where it is unclear whether a driver is the

registered owner of a vehicle, “the presumption should be that

[the driver] is not the owner.”         Id.   As there was no evidence

of ownership of the subject vehicle by another, Lee did not need

to address the issue of whether the defendant had “borrowed” the

subject vehicle.      As in Lee, however, no presumption exists


12
      For this reason, we need not address Domut’s assertions of evidence
showing that he had a reasonable belief the car was insured – that (1) Domut
readily provided Officer Becraft with the registration information; (2) the
safety check, which required up-to-date insurance, apparently was not expired
because Officer Becraft did not cite Domut for an expired safety check; and
(3) Domut never indicated to Officer Becraft an awareness that the car was
uninsured.

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under the statute that a subject vehicle was “borrowed.”

Therefore, the defendant bears the burden of producing evidence

that the subject vehicle was “borrowed” if such evidence was not

presented in the State’s case.13

         Thus, we address whether or not there was evidence that

Domut had “borrowed” the subject vehicle.             In this regard, HRS

Chapter 431 does not define “borrow,” but “this court may resort

to legal or other well accepted dictionaries as one way to

determine the ordinary meaning of certain terms not statutorily

defined.”       State v. Pacquing, 139 Hawai‘i 302, 312, 389 P.3d 897,

907 (2016) (citation omitted).           Black’s Law Dictionary defines

“borrow” as “[t]o take something for temporary use.”               Borrow,

Black’s Law Dictionary (10th ed. 2014).             The Oxford Dictionary

defines “borrow” as to “[t]ake and use (something that belongs

to someone else) with the intention of returning it.”14               A

“borrowed motor vehicle,” therefore, is a motor vehicle that has

been taken for temporary use with the intention of returning it.




13
      We also note that Kahaunaele was a consolidated opinion involving seven
separate defendants and evidence of “borrowing” had been presented by the
defendant or through stipulation. Kahaunaele, 10 Haw. App. at 521-22, 879
P.2d at 567-68. Thus, for all seven defendants, there was “some evidence” of
the second element of the defense – that defendant had “borrowed” the subject
vehicle.

14
         Oxford Dictionaries, https://perma.cc/7VR6-ZPTV (last visited Jan. 2,
2020).

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       Evidence of facts constituting a defense can be those

supplied by the prosecution.        Domut asserts that the evidence

adduced by the State that he was transporting two passengers

and/or that he was never the registered owner of the subject

vehicle constitutes sufficient evidence that he had “borrowed”

the subject vehicle to have shifted the burden to the State.                We

disagree.

       A person can operate a vehicle registered in another

person’s name, with or without passengers, without borrowing it.

If the fact that a vehicle was registered in someone else’s name

was sufficient to constitute evidence that an operator had

“borrowed” a motor vehicle, then operators of motor vehicles

could circumvent the No Motor Vehicle Insurance law by

transferring title of a vehicle to a third or fictitious person

without presenting any actual evidence of “borrowing.”              Thus,

Domut’s contention on certiorari that there was sufficient

evidence of “borrowing” to have shifted the burden to the State

to disprove the “good faith lack of knowledge” defense lacks

merit.

        In his second question on certiorari, Domut also alleges

that the ICA erred in placing a burden on him to present

evidence of a “borrower/lender relationship” with the registered

owner of the vehicle to assert the “good faith lack of

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knowledge” defense.       In this regard, we agree that the ICA

erred.

       HRS § 431:10C-117(a)(4)(C) allows the “good faith lack of

knowledge” defense for a “borrowed motor vehicle” that the

operator reasonably believes is insured.           The ICA stated that

“there was no evidence presented as to any borrower/lender

relationship between Domut and the registered owner.”              Domut,

SDO at 5.     However, this language from the ICA’s SDO is

inconsistent with the statute, which does not require that the

operator have “borrowed” the vehicle from the registered owner.

An operator could borrow a vehicle from someone other than a

registered owner and have a reasonable belief it is insured.15

Hence, the ICA erred by requiring Domut to adduce evidence of a

“borrower/lender relationship” with the registered owner of the

vehicle to raise the “good faith lack of knowledge” defense.

This error does not, however, require reversal of Domut’s No

Motor Vehicle Insurance conviction, as there was no evidence of

the threshold requirement that the subject vehicle was

“borrowed.”



15
      For example, the registered owner could be a prominent member of the
community who provides a vehicle to a child who is a college student, who
lends the vehicle to another student for a short drive to the supermarket.
The other student could have a reasonable belief that the vehicle is insured,
even if they did not borrow the vehicle from the registered owner.


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B.      There was no valid waiver of Domut’s right to jury trial.

        Domut was entitled to a jury trial on the Driving Without a

License charge pursuant to article I, section 14 of the

Constitution of the State of Hawaiʻi, as he was subject to up to

one-year imprisonment as indicated in the amended complaint.

Consistent with constitutional requirements, HRS § 806-60 (2014)

provides that “[a]ny defendant charged with a serious crime

shall have the right to trial by a jury of twelve

members.      ‘Serious crime’ means any crime for which the

defendant may be imprisoned for six months or more.”16

        It is well established that Hawaiʻi law recognizes the right

to a jury trial as a fundamental right that cannot be


16
        As we stated in Gomez-Lobato, 130 Hawaiʻi at 477 n.12, 312 P.3d at 908
n.12:

              Although HRS § 806–60 provides that a “serious crime” for
              which there is a right to trial by jury means “any crime
              for which the defendant may be imprisoned for six months or
              more[,]” this court has taken into account multiple factors
              when determining if an offense is petty or serious, for
              purposes of the right to trial by jury. See State v.
              Ford, 84 Hawaiʻi 65, 69–70, 929 P.2d 78, 82–83 (1996).
              Three factors are analyzed to determine whether an offense
              is constitutionally petty or serious: “(1) treatment of the
              offense at common law; (2) the gravity of the offense; and
              (3) the authorized penalty.” Id. at 70, 929 P.2d at
              82; State v. Sullivan, 97 Hawaiʻi 259, 264, 36 P.3d 803, 809
              (2001); see also State v. Lindsey, 77 Hawaiʻi 162, 164, 883
              P.2d 83, 85 (1994) (noting the presumption that this
              jurisdiction will not recognize the right to a jury trial
              where the maximum term of imprisonment is less than thirty
              days). Consequently, an offense involving a term of
              imprisonment that is less than six months can still
              constitute constitutionally a “serious” crime for which
              there is a right to trial by jury.


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relinquished absent a knowing, intelligent, and voluntary

waiver.    State v. Torres, 144 Hawaiʻi 282, 288, 439 P.3d 234, 240

(2019).    While a defendant may waive the right to a jury trial,

the waiver must be made knowingly, intelligently, and

voluntarily.     Gomez-Lobato, 130 Hawaiʻi at 477, 312 P.3d at 908.

A waiver is the knowing, intelligent, and voluntary

relinquishment of a known right.           State v. Baker, 132 Hawaiʻi 1,

6, 319 P.3d 1009, 1014 (2014).

       Whether a defendant validly waived the right to jury trial

is reviewed under the totality of the circumstances surrounding

a case, taking into account the defendant’s background,

experience, and conduct.        Gomez-Lobato, 130 Hawaiʻi at 470, 312

P.3d at 902.     A waiver is knowing and intelligent when it is

made with full awareness of both the nature of the right being

abandoned and the consequences of the decision to abandon

it.    Torres, 144 Hawaiʻi at 288, 439 P.3d at 240.          A trial court

has a “serious and weighty responsibility” with respect to jury

trial waivers, and has an obligation to ensure, through an

appropriate colloquy on the record, that the waiver was

knowingly, intelligently, and voluntarily given.             Baker, 132

Hawaiʻi at 6, 319 P.3d at 1014.         And although we exercise the

power sparingly, we have the discretion to sua sponte notice

plain error affecting substantial rights even if not raised on

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appeal.    State v. Miller, 122 Hawaiʻi 92, 115, 223 P.3d 157, 180

(2010) (quoting State v. Fox, 70 Haw. 46, 56, 760 P.2d 670, 676

(1988)).

       Reviewing the totality of circumstances regarding Domut’s

waiver of jury trial, we first note that the district court’s

colloquy asked no questions regarding Domut’s background,

education, or experience.

       The district court told Domut, “on one of the charges you

have a right to a trial by a jury[,]” but did not state that

this right inured to the Driving Without a License charge.

Domut was told he was entitled to a jury trial on one charge

only, not both, implying he only had the opportunity to have a

jury trial on one charge, and he was not even informed which

charge that was.      The district court’s advisement therefore

suggested that if Domut did not waive his right to a jury trial

on the one charge to which he was entitled to a jury, whichever

it was, he would have to undergo two trials, one with a jury and

one with a judge.      This suggestion was misleading because HRS §

701-109(2) (2014) provides, “[e]xcept as provided in subsection

(3) of this section, a defendant shall not be subject to

separate trials for multiple offense . . . arising from the same

episode . . . .”      The exception in HRS § 701-109(3) allows for

separate trials if the court so orders, when “satisfied that

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justice so requires.”       No separate trial was requested, and it

is unclear whether justice could have required separate trials.

Therefore, the district court’s advisement was insufficient,

confusing, and incorrect.17

       The dissent regarding this issue maintains that separate

trials would not have been necessary because Domut could have

had a single trial with two different factfinders, with the jury

adjudicating the charge with a right to jury trial and the judge

adjudicating the charge without a right to jury trial, and cites

to cases from other states that have followed such a process.

Under Hawaiʻi law and procedure, however, Domut would in all

likelihood have had the opportunity of having both charges tried


17
      The district court’s failure to inform Domut of the charge to which he
had a right to jury trial is analogous to our recent opinion in State v.
Carlton, SCWC-XX-XXXXXXX, 2019 WL 6271671 (Nov. 25, 2019). In Carlton, the
ICA remanded defendant’s kidnapping, robbery, and assault convictions, giving
the State the option of retrial or proceeding directly to sentencing if it
dismissed two of the three charges. Carlton, 2019 WL 6271671, at *2. It was
only after the defense had made its sentencing argument and the defendant
addressed the court that the State disclosed its decision to ask the court to
sentence the defendant on the robbery charge and to dismiss the kidnapping
and assault charges, after which the court sentenced the defendant to twenty
years imprisonment on the robbery charge. Carlton, 2019 WL 6271671, at *3.
We noted that each of the potential charges on which the defendant could be
sentenced were predicated on different conduct and had different elements,
and that because the defendant did not know the offense he was to be
sentenced on, he was not afforded a meaningful opportunity to address the
circumstances of the robbery offense. Carlton, 2019 WL 6271671, at *8.
Likewise, in this case, because the district court told Domut he only had a
right to jury trial on one of the charges, Domut did not know which charge he
was waiving his right to jury trial for. But, as we explain, Domut was also
not informed that he may have had the opportunity of having a jury trial on
both charges.




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by a jury.     If Domut had not waived his right to a jury trial,

the entire case would have been committed to the circuit court

pursuant to HRPP Rule 5(b)(3)(2014), which provides in part, “If

the defendant does not waive the right to a trial by jury at or

before the time of entry of a plea of not guilty, the court

shall commit the defendant to the circuit court for trial by

jury . . . .”     In addition, HRS § 604-8 (Supp. 2001) provides

that “[i]n any case cognizable by a district court . . . in

which the accused has the right to a trial by jury in the first

instance, the district court, upon demand by the accused for a

trial by jury, shall not exercise jurisdiction over the case,

but shall . . . commit for trial the accused as provided by law

. . . .”    Thus, if Domut had not waived his right to jury trial,

Domut’s entire “case” would have been triable by a jury unless

otherwise ordered by the circuit court.

       There were additional issues with the district court’s jury

trial advisements.      The district court told Domut that if he

waived his right to a jury trial, a judge “will preside over a

trial if we have a trial.”        Even under the process the dissent

suggests, a judge “presides” over both jury and non-jury trials.

Domut was not informed, however, of the fundamental distinction

between bench and jury trials that if he waived his right to

jury trial, one judge as compared to twelve jurors would

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actually decide whether he was guilty or not.18            Finally, the

district court was also incorrect when it informed Domut that

“[i]f all twelve do not find you guilty, then you’re not guilty

of that particular crime.”        A lack of unanimity as to guilt does

not result in a defendant being “not guilty.”

       Thus, viewed under a totality of the circumstances, the

record does not reflect a knowing and intelligent waiver of

Domut’s fundamental right to a jury trial.           We therefore vacate

Domut’s convictions on the Driving Without a License and No

Motor Vehicle Insurance charges and remand the case to the

district court for further proceedings consistent with this

opinion.19


18
      Gomez-Lobato referred to the following advisement regarding this point
from Friedman: “So by waiving that right means that your case will be
decided by a judge, the judge alone is to decide your guilt or innocence.”
Gomez-Lobato, 130 Hawaiʻi at 470, 312 P.3d at 902 (quoting Friedman, 93
Hawaiʻi at 66, 996 P.2d at 271).
19
      Domut’s original sentence is no longer at issue, but we note that after
the State stated its position on sentencing, including requesting one year
imprisonment on the Driving Without a License conviction, Domut’s counsel
requested a continuance of the sentencing. The district court did not
acknowledge the request and proceeded to sentencing. HRPP Rule 32(a) (2012)
provides that “[b]efore . . . imposing sentence, the court shall address the
defendant personally and afford a fair opportunity to the defendant and
defendant’s counsel, if any, to make a statement and present any information
in mitigation of punishment.” HRPP Rule 32(a) (emphasis added).

      A pre-sentence investigation and report (“PSI”) is discretionary for
defendants older than 21 who are convicted of misdemeanor offenses.
HRS § 706-601(1)&(2)(2014). In appropriate cases, trial courts should
exercise their discretion to order PSIs for misdemeanor convictions so that
they can appropriately consider HRS § 706-606 (2014) sentencing factors. See
State v. Harter, 134 Hawaiʻi 308, 332 n.29, 340 P.3d 440, 464 n.29 (2014)
(“Had the court requested a pre-sentence report, the court would have
received a report on Harter’s physical and mental condition, which likely
                                                              (continued. . .)
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                               V.   Conclusion

       Based on the reasons stated above, we vacate the ICA’s

August 29, 2018 judgment on appeal and the district court’s

judgment.     Although we believe the district court could be fair,

under the circumstances, we conclude the appearance of justice

would be better served if this case was remanded to a different

judge than the sentencing judge.

Susan L. Arnett                     /s/ Sabrina S. McKenna
for petitioner/
defendant-appellant                 /s/ Richard W. Pollack

Donald S. Guzman and                /s/ Michael D. Wilson
Renee Ishikawa Delizo
for respondent/
plaintiff-appellee




(. . .continued)
would have more fully informed the court’s sentencing decision. HRS § 706–
602(1)(b)(Supp. 2012).”). Even without ordering a PSI, the district court
also had the discretion to grant defense counsel’s request for a continuance
for sentencing, so that Domut could “present any information in mitigation of
punishment.” A court’s failure to exercise discretion can constitute an
abuse of discretion. Hamilton v. Hamilton, 138 Hawaiʻi 185, 197, 378 P.3d
901, 913 (2016).

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