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                                                              Electronically Filed
                                                              Supreme Court
                                                              SCWC-13-0000056
                                                              04-MAY-2017
                                                              08:43 AM




           IN THE SUPREME COURT OF THE STATE OF HAWAI#I

                                ---o0o---


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

                                    vs.

                         JOHN A. WAGNER, JR.,
                   Petitioner/Defendant-Appellant.


                            SCWC-13-0000056

         CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
               (CAAP-13-0000056; CR. NO. 11-1-001K)

                               MAY 4, 2017

 RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.

             OPINION OF THE COURT BY RECKTENWALD, C.J.

          John A. Wagner, Jr., seeks review of his conviction and

sentence for one count of methamphetamine trafficking in the

first degree, and two counts of prohibited acts related to drug
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paraphernalia.      The Circuit Court of the Third Circuit1 (circuit

court) sentenced Wagner to twenty years’ imprisonment on the

methamphetamine trafficking charge, and imposed a mandatory

minimum term of thirteen years and four months because Wagner had

a prior conviction for methamphetamine trafficking.             The

Intermediate Court of Appeals (ICA) affirmed the circuit court’s

Judgment of Conviction and Sentence, and Wagner sought review in

this court.

            We conclude that the circuit court incorrectly

construed Wagner’s prior conviction as an element of the offense.

As a result, information about Wagner’s prior conviction was

submitted to the jury in a stipulation, thus unnecessarily

subjecting Wagner to potential prejudice due to the jurors

learning of his prior felony conviction.           Accordingly, we vacate

the ICA’s January 26, 2016 judgment on appeal, and remand to the

circuit court for a new trial.

                               I.   Background

A.    Circuit Court Proceedings

            This case arises from a police search of Wagner’s

residence on December 23, 2010, executed pursuant to a search

warrant.    During the search, the police found 45.3 grams of a

“crystalline substance” and drug paraphernalia.            That same day,

      1
            The Honorable Elizabeth A. Strance presided.

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Wagner was arrested for methamphetamine trafficking and

possession of drug paraphernalia.

            On December 27, 2010, Wagner was initially charged with

four counts relating to the events of December 23, 2010.             The

State filed an Amended Complaint on December 28, 2011, and a

Second Amended Complaint on September 4, 2012, alleging three

counts.2   In Count I, Wagner was charged with methamphetamine

trafficking in the first degree in violation of Hawai#i Revised

Statutes (HRS) § 712-1240.7(1)(a) (Supp. 2006), alleging that

Wagner knowingly possessed one ounce or more of methamphetamine

“with one prior conviction for Methamphetamine Trafficking.”

Counts II and III both alleged that Wagner “used, or possessed

with intent to use, drug paraphernalia, zip packet(s) and/or

scale(s) and/or straw(s), to plant, propagate, cultivate, grow,

harvest, manufacture, compound, convert, produce, process,

prepare, test, analyze, pack, repack, store, contain, conceal,

inject, ingest, inhale, or otherwise introduce into the human

body a controlled substance” in violation of HRS § 329-43.5

(Prohibited Acts Related to Drug Paraphernalia).

      1.    Trial

            At jury trial, Wagner stipulated that he had a prior


      2
            Count III in the original complaint, which alleged attempted
methamphetamine trafficking in the first degree, was not included in the
Second Amended Complaint.

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conviction for methamphetamine trafficking.          However, the parties

further agreed that the jury would not be advised that Wagner’s

prior conviction was for a methamphetamine trafficking offense,

but rather only that it was a felony.

          The State’s evidence at trial established that when the

police arrived at Wagner’s residence to execute its search

warrant, Wagner and his fiancee, Deshalynn Pea, were on the lanai

at the front of the house, and Wagner’s mother and other family

members were inside the residence.        The State’s evidence also

established that the police found in Wagner’s room prescription

pill bottles with Wagner’s name on them, and Wagner’s wallet,

which held his University of Hawai#i student identification card,

his Visa card, and his social security card.          The police also

found Pea’s wallet on the bed.

          Further, the State’s evidence established that the

“sixteen packets of a white crystalline substance” recovered from

Wagner’s room tested positive as approximately 45.38 grams, or

about 1.6 ounces, of methamphetamine.        The State also established

that a methamphetamine smoking pipe, several zip packets, and a

digital scale and straw, used to weigh and package drugs, were

recovered from Wagner’s room.       Additionally, the State

established that the residual contents found within the drug

paraphernalia were methamphetamine.        The State also established


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that in Wagner’s room, $10,000 in a “drug roll” was recovered

from one of Wagner’s shirt pockets, $967 was found on Wagner’s

bed, a notebook with drug slang terms written inside was

recovered, and multiple cell phones with phone numbers affixed to

the exterior, commonly used to facilitate drug dealings, were

recovered.

          Just prior to the State resting its case, the court

read the stipulated language relating to Wagner’s prior

conviction to the jury:
                A conviction for Count 1 in this matter requires
          the prosecution to prove beyond a reasonable doubt the
          element that defendant [Wagner] has had one prior
          conviction for a felony prior to December 23rd, 2010.
          For purposes of Count 1 in this matter, the parties
          have stipulated that prior to December 23rd, 2010,
          [Wagner] was convicted of one felony offense.


          The court then further instructed the jury:
                You must not consider the prior conviction for
          any purpose other than conclusive proof beyond a
          reasonable doubt that [Wagner] was convicted of one
          felony offense. You must not speculate as to the
          nature of the prior conviction. You must not use any
          evidence of a prior conviction to conclude that
          because [Wagner] has had a prior felony conviction,
          that he is a person of bad character and therefore
          must have committed the offenses in this case.
                In considering the evidence for the limited
          purpose for which it has been received, you must weigh
          it in the same manner as you would all other evidence
          in this case and consider it along with all other
          evidence in this case.

          Wagner testified in his own defense.          Wagner admitted

that he had previously used methamphetamine and was familiar with

its effects, referring to himself as an “ex-addict.”            Wagner

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confirmed that methamphetamine was found in his room, but denied

that it was his and stated that he had never seen it in his room

before.    Wagner further contended that the pipe found in his room

did not belong to him.

           The following limiting instruction was given to the

jury at the end of trial without objection:
                 You have heard evidence that the defendant at
           another time may have engaged in or committed other
           crimes, wrongs, or acts. This evidence may be
           considered only on the issue of the defendant’s
           knowledge of methamphetamine, its packaging and
           paraphernalia, identity of the person who committed
           prior felony offense charged, and whether the alleged
           conduct resulted from a mistake or accident.
                 Do not consider this evidence for any other
           purpose. You must not use this evidence to conclude
           that because the defendant at another time may have
           engaged in or committed other crimes, wrongs, or acts,
           that he is a person of bad character, and therefore
           must have committed the offenses charged in this case.

           On September 13, 2012, the jury found Wagner guilty of

all three charges.     On September 18, 2012, the State filed a

motion to impose a mandatory minimum term of imprisonment,

pursuant to HRS § 712-1240.7(3)(a).        The State argued that

Wagner’s previous conviction for methamphetamine trafficking

“mandates the imposition of a mandatory minimum term of

imprisonment of between six years, eight months and thirteen

years, four months[.]”

     2.    Sentencing

           On November 16, 2012, the court held a sentencing

hearing.   Before any substantive matters were addressed, Wagner

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orally moved to dismiss his counsel.         The court then gave Wagner

a copy of the State’s motion to impose a mandatory minimum

sentence and the presentence report, and recessed to give Wagner

time to review the motion and “have a full understanding” of the

proceeding.

            After the recess,3 the court confirmed that Wagner was

ready to proceed, and engaged in a colloquy with Wagner to

determine if Wagner understood that he:          (1) was at a

disadvantage because he was not trained to represent himself; (2)

would be subject to a prison sentence of up to thirty years with

a mandatory minimum of up to thirteen years; (3) had the

constitutional right to be represented by an attorney; and (4)

had a right to court-appointed counsel.          Wagner responded that he

had no questions in general or about the possible sentence he

faced.

            Wagner stated that his decision to waive his right to

an attorney was voluntary, and the court found that he

“voluntarily, intelligently, and knowingly” waived his right to

be represented by an attorney.        The court then discharged

Wagner’s counsel.     When asked if Wagner had any response to the

State’s motion to impose a mandatory minimum sentence, Wagner


      3
            Upon review of the record, the length of the recess is unclear.
However, before the court recessed, it indicated that it would “pass” the
instant case “until 10 o’clock.”

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stated “[n]o response.”4

            The court granted the State’s motion to impose a

mandatory minimum sentence.        The court then sentenced Wagner to

twenty years’ imprisonment for methamphetamine trafficking in the

first degree, with a mandatory minimum term of thirteen years and

four months; and five years for each count of prohibited acts

related to drug paraphernalia, with the sentences running

concurrently.

            On November 19, 2012, the court filed its Judgment of

Conviction and Sentence.        On December 12, 2012, Wagner was

appointed counsel for purposes of appeal.           On January 29, 2013,

Wagner filed his notice of appeal.

B.    ICA Appeal

            After Wagner’s appointed counsel filed an opening brief

at the ICA, his counsel filed a motion to withdraw as Wagner’s

counsel.    The ICA remanded the case to the circuit court, and the

circuit court granted the motion to withdraw, but required

Wagner’s counsel “to remain as standby counsel” to advise Wagner

regarding the “practice and procedure of the appellate courts.”

            Wagner then filed a handwritten pro se opening brief



      4
            We have significant concerns regarding the circuit court allowing
Wagner to waive his right to counsel immediately before proceeding to
sentencing. However, we need not address this issue since we are granting a
new trial on other grounds.

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with the ICA, arguing that the circuit court abused its

discretion in allowing the introduction of his prior conviction

in front of the jury at trial.       Wagner argued that he was

prejudiced by the introduction of his conviction, and contended

that his stipulation should have “effectively remove[d] that

element of the crime from the charge.”         Wagner argued that he

faced unfair prejudice “[e]ven with the limited [sic]

instructions . . . [.]”

          Wagner further argued that the circuit court erred by

not giving curative instructions prior to the introduction of

Wagner’s prior bad acts.      Wagner contended that the State and his

counsel’s “repetitious statements” regarding his criminal history

“no doubt left an indelible mark upon the jury’s memory [that] no

instructions could cure.”

          The State argued that the circuit court did not abuse

its discretion by allowing the introduction of Wagner’s prior

conviction because Wagner stipulated to the conviction.            The

State asserted that the stipulation “was merely a stipulation

that [Wagner] had a prior conviction so the State need not call

additional witnesses merely to prove [Wagner] had a prior

conviction.   It was not a stipulation that the prior conviction

would never be mentioned at trial.”

          The ICA held that the circuit court did not abuse its


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discretion when it “allowed reading to the jury the parties’

stipulation regarding Wagner’s prior felony conviction” because

the circuit court properly “followed the procedure mandated . . .

where a defendant [stipulates] to a prior conviction for the same

offense where such was an element of the current offense.”

            Chief Judge Nakamura concurred with the result but

wrote separately, arguing that under HRS § 712-1240.7, a

defendant’s prior methamphetamine trafficking convictions should

be construed as a “sentencing enhancement factor for the judge to

decide,” rather than an “element of the offense for the jury [to

decide].”    In his concurrence, Chief Judge Nakamura advanced

three arguments in support of his position to construe the prior

convictions as a sentencing factor.

            First, Chief Judge Nakamura argued that the plain

language of HRS § 712-1240.7 supported his position, since a

defendant’s prior convictions are only referenced in the

sentencing provision of the statute.        Second, Chief Judge

Nakamura argued that construing a defendant’s prior conviction

under HRS § 712-1240.7 as a sentencing factor would not

contravene a defendant’s right to a jury trial because it would

fall squarely within the exception recognized in Apprendi v. New

Jersey, 530 U.S. 466 (2000), that the fact of a prior conviction




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need not be submitted to the jury.5         Third, Chief Judge Nakamura

argued that construing a defendant’s prior conviction as a

sentencing factor would avoid the risk of unfair prejudice to the

defendant due to the jury’s knowledge of his or her previously

convicted crime.

            However, Chief Judge Nakamura concluded that based on

controlling case law, including State v. Domingues,6 State v.

Kekuewa,7 State v. Ruggiero,8 and State v. Murray,9 the circuit

court did not err in:      (1) treating Wagner’s prior conviction as

an element of the offense; and (2) permitting the jury to be

informed by stipulation that Wagner had a prior felony

conviction.

            Therefore, the ICA affirmed Wagner's conviction and

sentence.    On January 26, 2016, the ICA entered its judgment on

appeal.



       5
             This argument was written before our holding in State v. Auld, 136
Hawai#i 244, 361 P.3d 471 (2015), where we found that “Apprendi’s ‘fact of
prior conviction’ exception does not apply to repeat offender sentencing under
HRS § 706–606.5, and that a jury is required to find that the defendant’s
prior conviction(s) have been proved beyond a reasonable doubt to trigger the
imposition of a mandatory minimum sentence under that statute.” Id. at 257,
361 P.3d at 484. Additionally, our holding in Auld was given prospective
effect only. Id.
      6
            106 Hawai#i 480, 107 P.3d 409 (2005).
      7
            114 Hawai#i 411, 163 P.3d 1148 (2007).
      8
            114 Hawai#i 227, 160 P.3d 703 (2007).
      9
            116 Hawai#i 3, 169 P.3d 955 (2007).

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                        II.   Standards of Review

A.    Admissibility Of Prior Bad Act Evidence

            Wagner argues that he was unfairly prejudiced by the

introduction of his prior conviction, and suggests it should not

have been submitted to the jury even with a limiting instruction.
            “Prior bad act” evidence under [Hawai#i Rules of
            Evidence ([HRE])] Rule 404(b) is admissible when it is
            1) relevant and 2) more probative than prejudicial. A
            trial court’s determination that evidence is
            “relevant” within the meaning of HRE Rule 401 is
            reviewed under the right/wrong standard of review.
            However, a trial court’s balancing of the probative
            value of prior bad act evidence against the
            prejudicial effect of such evidence under HRE Rule 403
            is reviewed for abuse of discretion. An abuse of
            discretion occurs when the court clearly exceeds the
            bounds of reason or disregards rules or principles of
            law to the substantial detriment of a party litigant.

State v. Behrendt, 124 Hawai#i 90, 102, 237 P.3d 1156, 1168

(2010) (citation and ellipses omitted).

B.    Sufficiency Of The Evidence

            The appellate court reviews the sufficiency of the

evidence on appeal as follows:
            [E]vidence adduced in the trial court must be
            considered in the strongest light for the prosecution
            when the appellate court passes on the legal
            sufficiency of such evidence to support a conviction;
            the same standard applies whether the case was before
            a judge or jury. The test on appeal is not whether
            guilt is established beyond a reasonable doubt, but
            whether there was substantial evidence to support the
            conclusion of the trier of fact.

State v. Richie, 88 Hawai#i 19, 33, 960 P.2d 1227, 1241 (1998)

(quoting State v. Quitog, 85 Hawai#i 128, 145, 938 P.2d 559, 576

(1997)).

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             “‘Substantial evidence’ as to every material element of

the offense charged is credible evidence which is of sufficient

quality and probative value to enable a person of reasonable

caution to support a conclusion.”           Id. (internal quotation marks

and citation omitted).

                               III.   Discussion

             Although Wagner raises many issues in his application

for writ of certiorari, we find the following issue dispositive:

“[Whether] [t]he [circuit] court abused its discretion in

allowing the introduction of Mr. Wagner’s prior conviction . . .

at trial[.]”

             We conclude that circuit court erred in construing

Wagner’s prior methamphetamine conviction as an element of the

offense, rather than a sentencing enhancement factor.

Accordingly, information about the conviction should not have

been presented to the jury.

             First, the plain language of HRS § 712-1240.7 (Supp.

2006), demonstrates that a defendant’s prior conviction should

not be construed as an element of the offense.             HRS § 702-205

(1993) provides that:        “The elements of an offense are such (1)

conduct, (2) attendant circumstances, and (3) results of conduct,

as:    (a) Are specified by the definition of the offense, and (b)

Negative a defense (other than a defense based on the statute of


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limitations, lack of venue, or lack of jurisdiction).”               See also

State v. Murray, 116 Hawai#i 3, 7-8, 169 P.3d 955, 959-60 (2007).

            The legislature has the ability to make a defendant’s

prior conviction an attendant circumstance, and accordingly, an

element of the offense.       See, e.g., HRS § 291-4.4 (Supp. 2000)

(repealed 2000).10      One way for the legislature to indicate that



      10
            Prior to HRS § 291E-61 (Supp. 2001) being enacted, the former
OVUII statute, HRS § 291-4.4 (Supp. 2000) (repealed 2000), provided in
relevant part:

                  (a) A person commits the offense of habitually
            driving under the influence of intoxicating liquor or
            drugs if, during a ten-year period the person has been
            convicted three or more times for a driving under the
            influence offense; and

                  (1)   The person operates or assumes actual
                        physical control of the operation of any
                        vehicle while under the influence of
                        intoxicating liquor, . . . [or]

                  (2)   The person operates or assumes actual
                        physical control of the operation of any
                        vehicle with .08 or more grams of alcohol
                        per one hundred milliliters or cubic
                        centimeters of blood or .08 or more grams
                        of alcohol per two hundred ten liters of
                        breath[.]

      This court stated in State v. Kekuewa that:

            According to the legislative history of HRS § 291–4.4,
            the requisite prior DUI convictions were considered an
            element of the offense. See House Stand. Comm. Rep.
            No. 844, in 1995 House Journal, at 1345 (“This bill
            already includes as an element of habitually driving
            under the influence, three convictions for DUI.”
            (Emphasis added.)). The purpose of HRS § 291–4.4 was
            to “establish a felony offense for those who are
            convicted of habitually driving under the influence of
            intoxicating liquors or drugs.” Id.

114 Hawai#i 411, 432, 163 P.3d 1148, 1169 (2007) (citing State v. Shimabukuro,
100 Hawai#i 324, 328 n.12, 60 P.3d 274, 278 n.12 (emphasis in original)).

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intent is to include the requirement of a prior conviction in the

same portions of the statute that define the required conduct and

results of conduct to commit the offense.

          Here, nothing in the plain language of HRS § 712-1240.7

suggests that a prior conviction is an element of the offense.

HRS § 712-1240.7 (Supp. 2006) provides:

          Methamphetamine trafficking in the first degree.
                (1) A person commits the offense of
          methamphetamine trafficking in the first degree if the
          person knowingly:
                (a)   Possesses one or more preparations,
                      compounds, mixtures, or substances of an
                      aggregate weight of one ounce or more
                      containing methamphetamine or any of its
                      salts, isomers, and salts of isomers;
                (b)   Distributes one or more preparations,
                      compounds, mixtures, or substances of an
                      aggregate weight of one-eighth ounce or
                      more containing methamphetamine or any of
                      its salts, isomers, and salts of isomers;
                (c)   Distributes methamphetamine in any amount
                      to a minor; or
                (d)   Manufactures methamphetamine in any
                      amount.

                (2) Methamphetamine trafficking in the first
          degree is a class A felony for which the defendant
          shall be sentenced as provided in subsection (3).

                (3) Notwithstanding sections 706-620(2),
          706-640, 706-641, 706-659, 706-669, and any other law
          to the contrary, a person convicted of methamphetamine
          trafficking in the first degree shall be sentenced to
          an indeterminate term of imprisonment of twenty years
          with a mandatory minimum term of imprisonment of not
          less than two years and not greater than eight years
          and a fine not to exceed $20,000,000; provided that:
                (a)   If the person has one prior conviction for
                      methamphetamine trafficking pursuant to
                      this section or section 712-1240.8, the
                      mandatory minimum term of imprisonment
                      shall be not less than six years, eight
                      months and not greater than thirteen
                      years, four months;
                (b)   If the person has two prior convictions
                      for methamphetamine trafficking pursuant
                      to this section or section 712-1240.8, the

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                        mandatory minimum term of imprisonment
                        shall be not less than thirteen years,
                        four months and not greater than twenty
                        years; or
                  (c)   If the person has three or more prior
                        convictions for methamphetamine
                        trafficking pursuant to this section or
                        section 712-1240.8, the mandatory minimum
                        term of imprisonment shall be twenty
                        years.

            As set forth in the plain language of HRS § 712-1240.7,

the provisions establishing the prohibited conduct for

methamphetamine trafficking in the first degree are set forth in

subsections (1)(a)-(d) of the statute.          A defendant’s prior

conviction is not mentioned in any of those subsections, nor do

those subsections integrate the parts of the statute which refer

to a defendant’s prior conviction.         Instead, prior convictions

are only mentioned in a separate subsection of the statute, HRS

§ 712-1240.7(3), which provides for the defendant’s sentencing.

See HRS § 712-1240.7(2).

            Further, nothing in HRS § 712-1240.7’s legislative

history indicates that the drafters intended for a defendant’s

prior conviction to be construed as an element of the offense.

See H. Stand. Comm. Rep. No. 665-06, in 2006 House Journal, at

1359 (stating only that the bill “[a]dd[ed] methamphetamine

trafficking in the first and second degree”).11          Therefore, based


      11
            In contrast to HRS § 712-1240.7’s legislative history, in State v.
Murray, this court reasoned that the legislative history of HRS § 709-906(7)
supported its holding that a defendant’s prior abuse conviction should be
                                                                    (continued...)

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on the plain language of HRS § 712-1240.7 and its legislative

history, it appears that the legislature intended that a

defendant’s prior conviction be construed as a sentencing

enhancement factor and not an element of the offense.

                 There are three prior decisions of this court involving

the offense of operating a vehicle under the influence of an

intoxicant (OVUII) that are relevant to this analysis, but

distinguishable from the instant case.               State v. Domingues, 106

Hawai#i 480, 107 P.3d 409 (2005); State v. Kekuewa, 114 Hawai#i

411, 163 P.3d 1148 (2007); State v. Ruggiero, 114 Hawai#i 227,


(...continued)
construed as an element of the felony offense because the drafters’ intent was
to impose a greater degree of offense on repeat offenders. Id. at 8, 169 P.3d
at 960. In Murray, this court outlined HRS § 709-906’s legislative history:

                 [I]n 1998, HRS § 709–906 was amended to include
                 subsection (7) as follows: “(7) For any subsequent
                 offense occurring within two years after a second
                 misdemeanor conviction, the person shall be charged
                 with a class C felony.” 1998 Haw. Sess. L. Act 172,
                 § 8 at 647. At that point the legislature stated that
                 “an enhanced grade of offense for repeat criminal
                 behavior sends a message to the repeat offender that
                 such behavior will not be tolerated and will be
                 treated as a serious offense.” Sen. Stand. Comm. Rep.
                 No. 3252, in 1998 Senate Journal, at 1315 (emphases
                 added).

                 In 2002, HRS § 709–906(7) itself was amended to read,
                 “(7) For a third or any subsequent offense that occurs
                 within two years of a second or subsequent conviction,
                 the person shall be charged with a class C felony.”
                 2002 Haw. Sess. L. Act 5, § 1 at 54 (emphasis added).
                 The legislature stated that the 2002 amendment
                 “limit[ed] misdemeanors to the first and second
                 offense, while making it a class C felony for any
                 third and subsequent offense.” Stand. Comm. Rep. No.
                 2949, in 2002 Senate Journal, at 1418.

Id. at 8-9, 169 P.3d at 960-61 (emphasis in original).

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160 P.3d 703 (2007).        In each of these cases, this court found

that a defendant’s prior convictions were an element of the

offense.    Domingues, 106 Hawai#i at 487-88, 107 P.3d at 416-17;

Kekuewa, 114 Hawai#i at 419, 163 P.3d at 1156; Ruggiero, 114

Hawai#i at 238, 160 P.3d at 714 (citation omitted).

            In Domingues, the defendant was charged with, inter

alia, habitually driving under the influence of intoxicating

liquor or drugs.        106 Hawai#i at 482-83, 107 P.3d at 411-12.

This court considered whether a defendant’s prior convictions

were an element of the offense under a newly enacted statute, HRS

§ 291E-61 (Supp. 2000).12        Id. at 487-88, 107 P.3d at 416-17.

      12
            HRS § 291E-61 (Supp. 2000) in relevant part provides:

                  (a) A person commits the offense of operating a
            vehicle under the influence of an intoxicant if the
            person operates or assumes actual physical control of
            a vehicle:

                  (1)     While under the influence of alcohol in an
                          amount sufficient to impair the person’s
                          normal mental faculties or ability to care
                          for the person and guard against casualty;

                  (2)     While under the influence of any drug that
                          impairs the person’s ability to operate
                          the vehicle in a careful and prudent
                          manner; [or)

                  (3)     With .08 or more grams of alcohol per one
                          hundred ten liters of breath . . . .

      HRS § 291E-61(b) discusses the sentences that shall be imposed for a
defendant who committed the instant OVUII offense, and provides for increased
punishment if a defendant has prior OVUII convictions:

                  (b) A person committing the offense of operating
            a vehicle under the influence of an intoxicant shall
            be sentenced as follows without possibility of
                                                                 (continued...)

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Despite the differences between HRS § 291-4.4 (the repealed

statute) and HRS § 291E-61, this court held that a defendant’s

prior convictions under HRS § 291E-61(b) were an element of the


     12
      (...continued)
           probation or suspension of sentence:

                (1)   For the first offense, or any offense not
                      preceded within a five-year period by a
                      conviction for an offense under this
                      section or section 291E-4(a):

          . . . .

          [Punishment including attendance at a substance abuse
          rehabilitation program; license suspension; and 72
          hours of community service, between two and five days
          of imprisonment, or a fine between $150 and $1,000]

                (2)   For an offense that occurs within five
                      years of a prior conviction for an offense
                      under this section or section 291E-4(a):

          . . . .

          [Increased punishment over a first offense, including
          possible imprisonment of between five and fourteen
          days]

                (3)   For an offense that occurs within five
                      years of two prior convictions for
                      offenses under this section or section
                      291E-4(a):

          . . . .

          [Increased punishment over one prior conviction,
          including mandatory imprisonment of between ten
          and thirty days]

                (4)   For an offense that occurs within ten
                      years of three or more prior convictions
                      for offenses under this section, section
                      707-702.5, or section 291E-4(a):

          . . . .

          [Increased punishment over two prior
          convictions]

          An offense under this paragraph is a class C felony.

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offense.    Id.   This court reasoned that HRS § 291E-61 established

a “hierarchy” of separate offenses, including three petty

misdemeanors and one class C felony.         Id.   This court also

reasoned that HRS § 291E-61(b)(1)-(4) included prefatory language

requiring qualifying prior convictions, and such language

“describe[d] attendant circumstances that are intrinsic to and

‘enmeshed’ in the hierarchy of offenses that HRS § 291E-61 as a

whole describes.”     Id. at 487, 107 P.3d at 416 (citation

omitted).    This court further reasoned that:
            Indeed, “[a]n offense under [HRS § 291E–61(b)(4)] is a
            class C felony . . . entitling a defendant to a jury
            trial, whereas the offenses described in HRS §§
            291E–61(b)(1) through 291E–61(b)(3) would appear to be
            petty misdemeanors, as to which no right to a jury
            trial would attach. . . . If the prefatory language of
            HRS §§ 291E–61(b)(1) through 291E–61(b)(4) were mere
            “sentencing factors” that the prosecution was not
            obliged to allege and prove to the trier of fact . . .
            then defendants charged with HRS § 291E–61 offenses
            would have no idea what the particular offense was
            that they were charged with committing or whether they
            were entitled to a jury trial.

Id. at 487 n.8, 107 P.3d at 416 n.8.

            Two years after Domingues, this court addressed the

validity of Domingues’ analysis of HRS § 291E-61 in State v.

Kekuewa.    In Kekuewa, this court rejected the State’s request to

overrule Domingues “to the extent that it characterizes the

provisions set forth in HRS § 291E-61(b)(1)-(4) (Supp. 2002)13 as


      13
            The legislature’s amendments in 2002 did not affect HRS § 291E-
61’s substantive language, but added an additional fine for offenders to pay
to the neurotrauma special fund. See 2002 Haw. Sess. Laws Act 160, § 11 at
                                                                (continued...)

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attendant circumstances.”       114 Hawai#i at 419, 163 P.3d at 1156.

However, this court acknowledged that a “fair reading of HRS

§ 291E-61(b) (Supp. 2002) provides the initial impression that

its contents describe sentencing factors, rather than attendant

circumstances, given the fact that HRS § 291E-61(b) (Supp. 2002)

is prefaced with language stating that ‘a person committing the

offense of [OVUII] shall be sentenced as follows[.]’”             114

Hawai#i at 420, 163 P.3d at 1157 (emphasis in original).

              Nonetheless, this court recognized that construing HRS

§ 291E-61(b)(1)-(4) as “extrinsic sentencing factors[,]” rather

than attendant circumstances elements, “would have raised serious

concerns regarding the statute’s constitutionality, given a

defendant’s inability to ascertain the class and grade of the

offense charged (i.e., a petty misdemeanor or a class C felony)

and whether the right to a jury has or has not attached.”               Id. at

420, 163 P.3d at 1157.       Thus, this court concluded that given the

“constitutional doubt” that a defendant would not have

“sufficient notice of (1) whether he or she was charged with a

petty misdemeanor or class C felony, and (2) whether he or she

was entitled to a jury,” Domingues’ holding should not be

overruled.       Id. at 421, 163 P.3d at 1158.



      13
          (...continued)
566-67.

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            In contrast, here, the due process notice concerns that

this court identified in Kekuewa and Domingues are not present.

HRS § 712-1240.7 establishes felony offenses only, rather than a

hierarchy of misdemeanors and felonies, and thus Wagner was

entitled to a jury trial in any event.            Moreover, Wagner was on

notice of the potential enhanced sentences, as the State asserted

its intent to utilize Wagner’s prior conviction in its Amended

Complaint.

            In State v. Ruggiero, this court considered whether

Domingues’ analysis of HRS § 291E-61 remained valid after the

legislature amended HRS § 291E-61 in 2003.            In 2003, the drafters

removed the class C felony from HRS § 291E-61 for a fourth OVUII

offense within ten years, previously set forth in HRS

§ 291E-61(b)(4).        The legislature then created a separate offense

of “Habitual[] OVUII” codified at HRS § 291E-61.5 (Supp. 2003).14


      14
            HRS § 291E-61.5 (Supp. 2003) (Habitually operating a vehicle under
the influence of an intoxicant) provides in relevant part:

                  (a) A person commits the offense of habitually
            operating a vehicle under the influence of an
            intoxicant if:

                  (1)     The person is a habitual operator of
                          a vehicle while under the influence
                          of an intoxicant; and

                  (2)     The person operates or assumes
                          actual physical control of a
                          vehicle:

                          (A)   While under the influence of alcohol
                                in an amount sufficient to impair
                                                                  (continued...)

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See 2003 Haw. Sess. Laws Act 71, §§ 1 and 3 at 123-26.

             In Ruggiero, this court affirmed the Domingues’

analysis and held that Domingues:
             [R]etains its vitality inasmuch as considerations of
             due process continue to require that the aggravating
             factors set forth in HRS § 291E–61(b)—-all of which
             remain “attendant circumstances that are intrinsic to
             and ‘enmeshed’ in the hierarchy of offenses that HRS §
             291E–61 as a whole describes” . . . be alleged in the
             charging instrument and proven beyond a reasonable
             doubt at trial.

Ruggiero, 114 Hawai#i at 238, 160 P.3d at 714 (footnote omitted)

(citing Domingues, 106 Hawai#i at 487, 107 P.3d at 416)).

             Thus, Ruggiero is distinguishable since the due process

concerns cited by the court there are not present in the instant

case.

             In State v. Murray, 116 Hawai#i 3, 169 P.3d 955 (2007),

this court considered the recidivist provisions of the offense of


        14
         (...continued)
                               the person’s normal mental faculties
                               or ability to care for the person
                               and guard against casualty . . . .

                   (b) For purposes of this section: . . .

                   A person has the status of a “habitual operator
             of a vehicle while under the influence of an
             intoxicant” if the person has been convicted three or
             more times within ten years of the instant offense,
             for offenses of operating a vehicle under the
             influence of an intoxicant.

                   (c) Habitually operating a vehicle while under
             the influence of an intoxicant is a class C felony.

                   (d) For a conviction under this section the
             sentence shall be [lists sentences for convictions
             under this section].


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abuse of family or household members under HRS § 709-906 (Supp.

2004).15       116 Hawai#i at 8, 169 P.3 955.       The court determined

that a defendant’s prior convictions were an element of the class

C felony offense under HRS § 709-906(7).              Id. at 9, 169 P.3d at

961.        However, Murray is also distinguishable.

                Murray involved a defendant who was charged with

causing physical abuse to his wife “within two (2) years of a

second or subsequent conviction of Abuse of Family or Household

Member.”        Id. at 5-6, 169 P.3 957-58.       This court held that

whether Murray’s violation of HRS § 709-906 was a “third or

subsequent offense” was an element of the class C felony offense.

Id. at 8, 169 P.3 955.          This court reasoned that a violation of

HRS § 709-906 escalates from a petty misdemeanor to a class C

felony “depending on whether the violation is a first offense,


       15
                HRS § 709-906 provides in relevant part:

                (1) It shall be unlawful for any person, singly or in
                concert, to physically abuse a family or household
                member

                . . . .

                (5) Abuse of a family or household member . . . shall
                be sentenced as follows:
                      (a) For the first offense the person shall serve
                a minimum jail sentence of forty-eight hours; and
                      (b) For a second offense that occurs within one
                year of the first conviction, the person shall be
                termed a ‘repeat offender’ and serve a minimum jail
                sentence of thirty days . . . .

                (7) For a third or any subsequent offense that occurs
                within two years of a second or subsequent conviction,
                the person shall be charged with a class C felony.

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second offense, or third or any subsequent offense that occurs

within two years of a second or subsequent conviction.”            Id. at

8, 169 P.3d at 960.

          This court held that when a definition of the offense

requires a prior conviction to have occurred within a certain

number of years, it is intrinsic to the crime and is an attendant

circumstance.   Id. at 9, 169 P.3d at 961.        As this court stated,

“[whether the offense] was a third or any subsequent offense that

occur[red] within two years of a second or subsequent conviction”

defines the felony offense of HRS § 709–906(7) as opposed to the

misdemeanor offenses set forth in § 709–906(5)(a) and (b).”             Id.

at 8, 169 P.3d at 960.     Thus, the reference to a “prior

conviction set forth in HRS § 709–906(7) is ‘specified by the

definition of the offense[.]’”       Id. (citing HRS § 702–205 and

brackets in original).     This is not the situation in the instant

case, and thus, Murray is distinguishable.

          In conclusion, we hold that a prior methamphetamine

conviction under HRS § 712-1240.7 is a sentencing enhancement

factor and not an element of the offense.         Accordingly, the

circuit court erred by reading to the jury the stipulated

language relating to Wagner’s prior conviction.          Instead,

Wagner’s prior conviction should only have been utilized by the

court as a sentencing enhancement factor.         Under the harmless


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error standard, the appellate court “must determine whether there

is a reasonable possibility that the error complained of might

have contributed to the conviction.”         State v. Kassebeer, 118

Hawai#i 493, 505, 193 P.3d 409, 421 (2008) (internal quotation

marks and citation omitted).      “If there is such a reasonable

possibility in a criminal case, then the error is not harmless

beyond a reasonable doubt, and the judgment of conviction on

which it may have been based must be set aside.”           State v. Gano,

92 Hawai#i 161, 176, 988 P.2d 1153, 1168 (1999) (internal

quotation marks and citation omitted).         Here, the jury’s

knowledge of Wagner’s prior conviction could have prejudiced the

jury and contributed to its decision to convict Wagner in the

instant case.   Thus, the error is not harmless beyond a

reasonable doubt.

          Although we need not address most of the remaining

issues raised by Wagner, we must consider whether there was

sufficient evidence to support his convictions.          In reviewing the

sufficiency of the evidence, a court must view the evidence in

the light most favorable to the prosecution.          State v. Tamura, 63

Haw. 636, 637, 633 P.2d 1115, 1117 (1981).         “The jury, as the

trier of fact, is the sole judge of the credibility of witnesses

or the weight of the evidence.”       Id. at 637-38, 633 P.2d at 1117.

          In the instant case, viewing the evidence in the light


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most favorable to the prosecution, the record contains

substantial evidence sufficient to support a jury verdict for

methamphetamine trafficking in the first degree and prohibited

acts related to drug paraphernalia.         For Wagner to be convicted

of methamphetamine trafficking, the State had to prove that

Wagner knowingly possessed one ounce or more of methamphetamine.

See HRS § 712-1240.7(1)(a).15       For Wagner to be convicted of

prohibited acts related to drug paraphernalia, the State had to

prove that Wagner possessed with intent to use “drug

paraphernalia to . . . prepare, test, analyze, pack, repack,

store, contain, conceal, inject, ingest, inhale, or otherwise

introduce into the human body a controlled substance.”                HRS

§ 329-43.5(a).16

      15
            HRS § 712-1240.7(1)(a) (2006) (“Methamphetamine trafficking in the
first degree”) provides:

            (1) A person commits the offense of methamphetamine
            trafficking in the first degree if the person
            knowingly:

                  (a) Possesses one or more preparations,
                  compounds, mixtures, or substances of an
                  aggregate weight of one ounce or more containing
                  methamphetamine or any of its salts, isomers,
                  and salts of isomers[.]
      16
            HRS § 329-43.5 (1988) (“Prohibited acts related to drug
paraphernalia”) provides in pertinent part:

            (a) It is unlawful for any person to use, or to
            possess with intent to use, drug paraphernalia to
            plant, propagate, cultivate, grow, harvest,
            manufacture, compound, convert, produce, process,
            prepare, test, analyze, pack, repack, store, contain,
            conceal, inject, ingest, inhale, or otherwise
                                                                (continued...)

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               The State’s evidence at trial established that

approximately 45.38 grams, or about 1.6 ounces of

methamphetamine, was recovered from Wagner’s room, along with

items including a methamphetamine smoking pipe, zip packets, a

digital scale and angle cut straw.17            In addition, police also

recovered other items from the room which support the inference

that Wagner knowingly possessed the methamphetamine and drug

paraphernalia, including $10,000 in a “drug roll”18 from one of

Wagner’s shirt pockets, $967 found on Wagner’s bed, a wallet

containing Wagner’s identification documents, a notebook with

drug slang terms written inside, and multiple cell phones with

phone numbers affixed to the exterior (which Wagner admitted to

possessing, but denied knowing why the phone numbers were taped

to the exterior).

               Wagner argues that there was not substantial evidence


      16
           (...continued)
                introduce into the human body a controlled substance
                in violation of this chapter.
      17
            These items meet the statutory definition of “drug
paraphernalia”–-the scale and straw can be used to “prepare, test,” and
“analyze” the methamphetamine; the zip packets to “pack, repack, store,” and
“contain” the methamphetamine; and the pipe to “ingest, inhale, or otherwise
introduce” methamphetamine “into the human body.” HRS § 329-43.5(a).
      A police officer testified at trial that the digital scale could be used
to weigh the drugs, and that the angle-cut scoop straw could be used to “scoop
the methamphetamine out from within one zip packet, put it on the scale to
weigh[] it, and then remove that and put it inside another baggie so that the
weight measurement [was] correct.”
      18
             A police officer testified at trial that the way the money was
“folded and the rubber bands are applied,” indicated that the money was a
“drug roll.”

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because Pea “admitted to the charge [regarding the contraband].”

This argument is not persuasive, because the “test on appeal is

not whether guilt is established beyond a reasonable doubt, but

whether there was substantial evidence to support the conclusion

of the trier of fact.”     Richie, 88 Hawai#i at 33, 960 P.2d at

1241.   Even though a police officer testified that Pea did take

responsibility for the offenses of drug paraphernalia and

promoting a dangerous drug, there is still substantial evidence

to support the fact-finder’s conclusion that Wagner also

possessed over one ounce of methamphetamine and several items of

drug paraphernalia.     Thus, the ICA did not err in concluding that

“the record contains sufficient and substantial evidence to

support the jury verdict.”

                            IV.   Conclusion

            For the foregoing reasons, the circuit court erred in

construing Wagner’s prior conviction as an element of the

offense, rather than a sentencing enhancement factor, and the ICA

erred in affirming the circuit court’s judgment of conviction and

sentence.   Accordingly, we vacate the ICA’s January 26, 2016

judgment on appeal, which affirmed the circuit court’s




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November 19, 2012 judgment of conviction and sentence, and remand

this case to the circuit court for a new trial.19

John A. Wagner,                           /s/ Mark E. Recktenwald
petitioner, pro se
                                          /s/ Paula A. Nakayama
Mark D. Disher
for respondent                            /s/ Sabrina S. McKenna

                                          /s/ Richard W. Pollack

                                          /s/ Michael D. Wilson




      19
            On remand, the circuit court should consider the applicability of
Act 231 and its amendment of HRS § 712-1240.7. See 2016 Haw. Sess. Laws Act
231 §§ 52 at 763-64; 70 at 775-76.

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