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                                                              Electronically Filed
                                                              Supreme Court
                                                              SCWC-XX-XXXXXXX
                                                              16-MAY-2019
                                                              03:00 PM




           IN THE SUPREME COURT OF THE STATE OF HAWAIʻI

                            ---o0o---
________________________________________________________________

                          STATE OF HAWAIʻI,
                   Respondent/Plaintiff-Appellee,

                                    vs.

                    MICHELLE HELEN CASTILLON,
                Petitioner/Defendant-Appellant.
________________________________________________________________

                            SCWC-XX-XXXXXXX

         CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
            (CAAP-XX-XXXXXXX; CASE NO. 3DTC-15-042273)

                                May 16, 2019

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

                 OPINION OF THE COURT BY WILSON, J.

                           I.     Introduction

          Petitioner/Defendant-Appellant Michelle Helen

Castillon (“Castillon”) seeks review of the May 31, 2017 opinion

of the Intermediate Court of Appeals (“ICA”).          State v.

Castillon, 140 Hawaiʻi 242, 398 P.3d 831 (App. 2017).           She
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contends that Respondent/Plaintiff-Appellee State of Hawaiʻi

(“State”) bore the burden to prove, pursuant to Hawaiʻi Revised

Statutes (“HRS”) § 286-102(a) (2007),1 that she did not possess a

valid driver’s license issued by Canada or a valid commercial

driver’s license issued by Canada or Mexico, which would have

exempted her from the requirement to operate a motor vehicle

with a valid Hawaiʻi driver’s license.        Inasmuch as Castillon

bore the initial burden to produce “some evidence” to support an

exemption, and she failed to do so, the burden never shifted to

the State to prove beyond a reasonable doubt that Castillon did

not have a driver’s license that qualified as an exemption.

                            II.   Background

          Castillon was stopped by Officer Aron Tomota (“Officer

Tomota”) for driving with expired safety and registration tags

on November 19, 2015.     When he asked for her State of Hawaiʻi

driver’s license, Castillon was not able to provide one.

Officer Tomota issued a citation to Castillon for driving a

     1
          At the time of the offense, HRS § 286-102(a) provided:

                No person, except one exempted under section 286-105,
          one who holds an instruction permit under section 286-110,
          one who holds a provisional license under section 286-
          102.6, one who holds a commercial driver’s license issued
          under section 286-239, or one who holds a commercial
          driver’s license instruction permit issued under section
          286-236, shall operate any category of motor vehicles
          listed in this section without first being appropriately
          examined and duly licensed as a qualified driver of that
          category of motor vehicles.




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motor vehicle with a revoked license under HRS § 286-132 (2007).

The citation was later amended to driving without a license

(“DWOL”) under HRS § 286-102(b) (Supp. 2012).2

     A.    District Court Proceedings

           At trial, the District Court of the Third Circuit

(“district court”) rejected Castillon’s argument that she was

entitled to a judgment of acquittal because the State failed to

prove that she did not possess a valid driver’s license issued

by Canada or Mexico.3

           The State offered testimony in its case-in-chief that

established Castillon did not have a valid Hawaiʻi driver’s

license.   Officer Tomota testified that when he stopped

Castillon, he called dispatch to verify whether she had a

     2
           At the time, HRS § 286-102(b) stated:

                 A person operating the following category or
           combination of categories of motor vehicles shall be
           examined as provided in section 286-108 and duly licensed
           by the examiner of drivers:
                 (1)   Mopeds;
                 (2)   Motorcycles and motor scooters;
                 (3)   Passenger cars of any gross vehicle weight
                       rating, buses designed to transport fifteen or
                       fewer occupants, and trucks and vans having a
                       gross vehicle weight rating of eighteen
                       thousand pounds or less; and
                 (4)   All of the motor vehicles in category (3) and
                       any vehicle that is not a commercial motor
                       vehicle.
                 A school bus or van operator shall be properly
           licensed to operate the category of vehicles that the
           operator operates as a school bus or van and shall comply
           with the standards of the department of transportation as
           provided by rules adopted pursuant to section 286-181.
     3
           The Honorable Margaret K. Masunaga presided.



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license.   Dispatch responded that Castillon’s license had been

revoked.   At trial, the supervising driver’s license examiner

for the County of Hawaiʻi (“Examiner”) also testified that

Castillon’s State of Hawaiʻi driver’s license had been revoked

prior to November 19, 2015.       The Examiner testified that the

State’s database precluded her from conducting research

regarding Castillon’s licensure in Canada.          She did not address

whether she was precluded from investigating Castillon’s

licensure in Mexico.

           Castillon did not introduce evidence that she

possessed a valid driver’s license in Canada or Mexico.             Rather,

she argued the State bore the burden to prove that she did not

possess a valid driver’s license in Canada or Mexico and noted

that, while HRS § 286-102(a) requires all persons in the State

of Hawaiʻi to be “appropriately examined and duly licensed as a

qualified driver” before operating a motor vehicle, certain

persons described under HRS § 286-105 (2007)4 are exempted from

      4
            Under HRS § 286-105(3) and (4), the following persons are
exempted from the licensing requirements under HRS § 286-102:

           (3)   Any person who is at least eighteen years of age and
                 who has in the person’s possession a valid driver’s
                 license to drive the categories of motor vehicles
                 listed in section 286-102(b), except section 286-
                 102(b)(4), that is equivalent to a driver’s license
                 issued in this State but was issued to the person in
                 another state of the United States, the Commonwealth
                 of Puerto Rico, United States Virgin Islands,
                 American Samoa, Guam, a province of the Dominion of
                 Canada, or the Commonwealth of the Northern Mariana

                                                             (continued . . .)

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this requirement, including those who possess a valid driver’s

license issued by “a province of the Dominion of Canada” and

those with a valid commercial driver’s license issued by

“Mexico, or a province of the Dominion of Canada[.]”              HRS § 286-

105(3) and (4).       Thus, she claimed, the State bore the burden to

prove that she did not possess a valid driver’s license in

Canada or Mexico.

            Based on the evidence presented at trial, the district

court determined that the State proved beyond a reasonable doubt

that Castillon violated HRS § 286-102(b) by operating a motor

vehicle without a valid driver’s license.            Her sentence to pay

$187.00 in fees and fines was stayed pending this appeal.

Castillon filed an amended motion for reconsideration of

judgment and post-trial motion for judgment of acquittal,

asserting the same arguments.          The district court denied the

motions.




(. . . continued)

                    Islands for that category of motor vehicle which the
                    person is operating;
            (4)     Any person who has in the person’s possession a valid
                    commercial motor vehicle driver’s license issued by
                    any state of the United States, Mexico, or a province
                    of the Dominion of Canada that issues licenses in
                    accordance with the minimum federal standards for the
                    issuance of commercial motor vehicle driver’s
                    licenses[.]




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     B.   ICA Proceedings

          Before the ICA, Castillon more specifically argued

that the State failed to meet its burden to prove every element

of the offense beyond a reasonable doubt.         Castillon noted that

she was charged under HRS § 286-102 which provided, in relevant

part, that “[n]o person, except one exempted under section 286-

105, . . . shall operate any category of motor vehicles listed

in this section without first being appropriately examined and

duly licensed as a qualified driver of that category of motor

vehicles.”   (Emphasis added.)      Included in the exemptions listed

under HRS § 286-105(3) and (4) are any persons that possess a

valid driver’s license issued by Canada or a valid commercial

driver’s license issued by Canada or Mexico.5          Thus, Castillon

argued, the State was required to prove three elements at trial:

(1) on November 19, 2015, Castillon operated a category of motor

vehicle listed under HRS § 286-102; (2) on November 19, 2015,

she was not examined and licensed to drive that category of

motor vehicle; and (3) on November 19, 2015, she was not

exempted by statute from the driver’s license requirements.

Castillon emphasized that no evidence was introduced at trial

that she did not possess a driver’s license issued by Canada or

Mexico.   Therefore, she claimed, her conviction was not

     5
          See supra note 4.




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supported by substantial evidence because the State failed to

prove an essential element of the offense.

            In response to Castillon, the State argued that the

defendant bears the initial burden of producing “some evidence”

supporting this defense before the burden shifts to the State to

disprove it.    The State alleged the exemptions listed under HRS

§ 286-105 are defenses because the exemptions are not included

in the section of the statute describing the prohibited act--HRS

§ 286-102 (i.e. operating a motor vehicle without a valid

driver’s license).      Noting that Castillon failed to introduce

any evidence that she had a driver’s license from Canada or

Mexico at the time she received the citation, the State claimed

that Castillon failed to meet her burden of production and the

burden never shifted to the State.

            The ICA agreed with the State.6        Castillon, 140 Hawaiʻi

at 247, 398 P.3d at 836.       In its published opinion, the ICA

applied the enacting clause test outlined in State v. Nobriga,

10 Haw. App. 353, 357-58, 873 P.2d 110, 112-13 (1994), overruled

on other grounds by State v. Maelega, 80 Hawaiʻi 172, 178-79, 907

P.2d 758, 764-65 (1995).       An enacting clause is “the prohibitory

declaration of the statute which contains the general or

     6
            However, the ICA vacated Castillon’s conviction on other grounds
and remanded for a new trial. Castillon, 140 Hawaiʻi at 247-48, 398 P.3d at
836-37.




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preliminary description of the acts prohibited; i.e., the clause

which proscribes the offensive deed.”        Castillon, 140 Hawaiʻi at

246 n.2, 398 P.3d at 835 n.2 (quoting Nobriga, 10 Haw. App. at

357 n.1, 873 P.2d at 112 n.1).       Under the enacting clause test,

where an exemption to an offense is embodied in the enacting

clause of the statute defining the offense, the prosecution

bears the burden of proof.      Id. at 245, 398 P.3d at 834.         Where

the exemption is described in a separate provision from the

enacting clause, the initial burden of production is on the

defense:

           The general and well-settled common law rule is that where
           an exception is embodied in the language of the enacting
           clause of a criminal statute, and therefore appears to be
           an integral part of the verbal description of the offense,
           the burden is on the prosecution to negative that
           exception, prima facie, as part of its main case.

                 . . . [W]hen the exception appears somewhere other
           than in the enacting clause, and is thus a distinct
           substantive exception or proviso, the burden is on the
           defendant to bring forward evidence of exceptive facts that
           constitute a defense. The prosecutor is not required in
           such instances to negative, by proof in advance, exceptions
           not found in the enacting clause.

Id. at 245-46, 398 P.3d at 834-35 (emphasis and citations

omitted) (quoting Nobriga, 10 Haw. App. at 357-58, 873 P.2d at

112-13).   Applying the enacting clause test, the ICA explained

that HRS § 286-102(a) is the enacting clause of the DWOL offense

because it describes the prohibited act of driving without a

license.   See id. at 246-47, 398 P.3d at 835-36.          The ICA

determined that the HRS § 286-105 exemptions are described in a



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separate provision and, therefore, not embodied within the

enacting clause of the DWOL offense.         Id. at 247, 398 P.3d at

836.

           To support its interpretation, the ICA discussed State

v. Lee, 90 Hawaiʻi 130, 976 P.2d 444 (1999).          Id. at 246-47, 398

P.3d at 835-36.     The Lee court applied the enacting clause test

to a statute prohibiting operating a motor vehicle without no-

fault insurance, HRS § 431:10C-104(a) (1993 & Supp. 1996).              Id.

at 246, 398 P.3d at 835.       HRS § 431:10C-104(a) is the enacting

clause of the offense because it describes the prohibited act of

operating a motor vehicle without no-fault insurance.             The

enacting clause refers to a separate statute, HRS § 431:10C-105

(1993), which lists exceptions to the offense.           HRS § 431:10C-

104(a).    The enacting clause states, “Except as provided in

section 431:10C-105 [(the section pertaining to self-

insurance)], no person shall operate or use a motor vehicle upon

any public street, road, or highway of [this] State at any time

unless such motor vehicle is insured at all times under a no-

fault policy.”7    Castillon, 140 Hawaiʻi at 246, 398 P.3d at 835

(first brackets in original) (quoting Lee, 90 Hawaiʻi at 132 n.1,


       7
            The exceptions described in HRS § 431:10C-105 provide that the
no-fault motor vehicle insurance required under the enacting clause, HRS §
431:10C-104(a), is inapplicable if either the driver of the motor vehicle or
the vehicle itself are self-insured. Lee, 90 Hawaiʻi at 136, 976 P.2d at 450.




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976 P.2d at 446 n.1).     The Lee court held that the HRS §

431:10C-105 exceptions to the offense of driving without no-

fault insurance are only referenced, but not described, in the

enacting clause.    Id.   As such, the HRS § 431:10C-105 exceptions

constitute defenses to the offense of driving without no-fault

insurance, for which the defendant bears the initial burden of

production; the exceptions are not elements of the offense, for

which the State bears the burden of proof.         Id.

          The ICA found the enacting clause for driving without

a license--HRS § 286-102(a)--to be similar to the enacting

clause at issue in Lee.     Id.   HRS § 286-102(a) references a

separate section of the statute containing exemptions to the

offense, HRS § 286-105, but does not define the exemptions.             Id.

HRS § 286-102(a) states in pertinent part:         “No person, except

one exempted under section 286-105, . . . shall operate any

category of motor vehicles listed in this section without first

being appropriately examined and duly licensed as a qualified

driver of that category of motor vehicles.”          (Emphasis added.)

Similar to the exceptions in Lee, the ICA concluded the HRS §

286-105 exemptions are not embodied within the enacting clause

of the offense--HRS § 286-102(a); thus, the exemptions are not

“an integral part of the . . . description of the offense[.]”

Castillon, 140 Hawaiʻi at 245-46, 398 P.3d at 834-35 (quoting

Nobriga, 10 Haw. App. at 357, 873 P.2d at 113).          As provisions

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defined separately from the enacting clause, the ICA held the

HRS § 286-105 exemptions to be defenses to the DWOL offense.

Id. at 247, 398 P.3d at 836.      As defenses, the ICA concluded,

Castillon bore the burden to produce evidence that she possessed

a valid driver’s license in Canada or a valid commercial

driver’s license in Canada or Mexico before the burden shifted

to the State to prove beyond a reasonable doubt that she did not

have a driver’s license that qualified as an exemption.            Id.

Because Castillon failed to introduce any evidence that she

possessed a driver’s license in Canada or Mexico, the ICA held,

the burden never shifted to the State.         Id.

          The ICA further noted that notwithstanding the

enacting clause test, exemptions are always a defense, and not

an essential element of the offense, “when the facts or evidence

concerning the [exemption] are ‘peculiarly within the knowledge

of the defendant’ or ‘within the defendant’s private

control[.]’”    Id. at 246, 398 P.3d at 835 (quoting Nobriga, 10

Haw. App. at 358, 873 P.2d at 113).        Thus, in accordance with

Lee, “the statutory [exemptions] referred to in HRS § 286-102(a)

are not elements of the DWOL offense, but constitute defenses to

the offense.”   Id. at 247, 398 P.3d at 836.         The ICA concluded

that Castillon bore the burden of introducing evidence that she

possessed a driver’s license issued by Canada or Mexico, in




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part, because she inherently has knowledge or control of such

evidence.    Id. at 246, 398 P.3d at 835.

                         III. Standard of Review

       A.   Statutory Interpretation

            “Statutory interpretation is a question of law

reviewable de novo.”      Panado v. Bd. of Trs., Emps.’ Ret. Sys.,

134 Hawaiʻi 1, 10, 332 P.3d 144, 153 (2014) (quoting First Ins.

Co. of Hawaii v. A & B Props., 126 Hawaiʻi 406, 414, 271 P.3d

1165, 1173 (2012)).      In reviewing questions of statutory

interpretation, we are guided by the following principles:

            First, the fundamental starting point for statutory-
            interpretation is the language of the statute itself.
            Second, where the statutory language is plain and
            unambiguous, our sole duty is to give effect to its plain
            and obvious meaning. Third, implicit in the task of
            statutory construction is our foremost obligation 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. Fourth, when
            there is doubt, doubleness of meaning, or indistinctiveness
            or uncertainty of an expression used in a statute, an
            ambiguity exists.

Id. at 10-11, 332 P.3d at 153-54 (quoting First Ins. Co. of

Hawaii, 126 Hawaiʻi at 414, 271 P.3d at 1173).

                              IV.   Discussion

            We concur with the ICA’s analysis in all respects but

one.    The ICA quoted Nobriga for the proposition that an

exemption always constitutes a defense “when the facts or

evidence concerning the [exemption] are ‘peculiarly within the

knowledge of the defendant’ or ‘within the defendant’s private


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control[.]’”     Castillon, 140 Hawaiʻi at 246, 398 P.3d at 835

(quoting Nobriga, 10 Haw. App. at 358, 873 P.2d at 113).              The

statement in Nobriga derives from the thirteenth edition of

Wharton’s Criminal Evidence, a supplement published over forty

years ago that has since been updated to clarify the principle.

Compare 1 Wharton’s Criminal Evidence § 20, at 33-35 (C. Torcia

13th ed. 1972) (stating that a statutory exception found in the

enacting clause is per se a defense when the facts supporting

the defense are within the defendant’s knowledge or private

control), with 1 Wharton’s Criminal Evidence § 2:9, at 59 (C.

Torcia 15th ed. 1997) (explaining that if a defendant asserts an

affirmative defense, the burden of producing evidence to support

the defense first rests on the defendant because it is “fair and

makes sense, primarily because the facts in support of such a

defense would be peculiarly within the knowledge of the

accused”).     This court has occasionally applied the rule that an

exemption is a defense if the facts or evidence of the defense

are peculiarly within the knowledge of the defendant or in the

defendant’s private control.8        Nonetheless, it is unclear why the

practice of citing the rule has persisted, as the statute

      8
            See, e.g., State v. Jenkins, 93 Hawaiʻi 87, 107, 997 P.2d 13, 33
(2000) (“Inasmuch as the question whether Jenkins did or did not possess a
hunting license poses a fact ‘peculiarly within [Jenkins’s] knowledge,’ the
general rule, which ordinarily would require the prosecution to establish
that fact as part of its case-in-chief, would be inoperative.”).




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describing what constitutes a defense does not impose such a

requirement.    A defense is defined as “a fact or set of facts

which negatives penal liability[,]” irrespective of whether the

facts are within the defendant’s knowledge or private control.

HRS § 701-115(a) (2014).       As stated in Nobriga and Lee, unless

“some evidence”9 supporting the defense has been adduced, the

State has no burden to disprove the defense.           Here, if Castillon

had introduced “some evidence” that she possessed a valid

driver’s license in Canada or a valid commercial driver’s

license in Canada or Mexico, the burden would shift to the State

to introduce evidence disproving her defense.

           Therefore, we concur with the ICA’s conclusion that

the exemptions referenced in HRS § 286-102(a) and described in

HRS § 286-105 are defenses to the offense of DWOL, for which

Castillon bore the initial burden of production.            We make this

determination irrespective of whether Castillon had knowledge or

private control over facts establishing that she had a valid

driver’s license in Canada or Mexico.         Because she did not

produce “some evidence” that she possessed a valid driver’s

license that would qualify her for exemption, as set forth in
     9
            “Some evidence” is “such evidence [that] would support the
consideration of that issue by the jury, no matter how weak, inconclusive, or
unsatisfactory the evidence may be.” Maelega, 80 Hawaiʻi at 178–79, 907 P.2d
at 764–65 (emphasis omitted) (quoting State v. Pinero, 75 Haw. 282, 304, 859
P.2d 1369, 1379 (1993)); see also Lee, 90 Hawaiʻi at 137 n.6, 976 P.2d at 451
n.6.




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HRS § 286-105, the burden did not shift to the State.            We affirm

the ICA’s judgment but for the reasons stated in this opinion

and remand to the district court for further proceedings.

John M. Tonaki,                   /s/ Mark E. Recktenwald
Audrey L. Stanley
for Petitioner                    /s/ Paula A. Nakayama

Mitchell D. Roth,                 /s/ Sabrina S. McKenna
David Blancett-Maddock
for Respondents                   /s/ Richard W. Pollack

                                  /s/ Michael D. Wilson




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