State v. Slavik

150 Hawai‘i 343

501 P.3d 312

STATE of Hawai‘i, Plaintiff-Appellee,

v.Nikolaus SLAVIK, Defendant-Appellant

NO. CAAP-19-0000403

Intermediate Court of Appeals of Hawai‘i.

October 27, 2021

OPINION OF THE COURT BY LEONARD, J.

This case examines, inter alia , the statutory scheme governing firearms, ammunition, and dangerous weapons in Hawai‘i, in particular the general regulations applicable to firearms and ammunition. Of particular note, we hold that, in the context of Hawaii's firearm control statute – specifically, Hawaii Revised Statutes (HRS ) §§ 134-2 (2011) & 134-3 (2011 and Supp. 2019) – evidence of possession of a firearm, without more, is insufficient to support a justifiable inference that a defendant acquired ownership of the firearm. For the reasons set forth below, we reverse in part, and vacate in part, and remand this case for further proceedings.

Defendant-Appellant Nikolaus Slavik (Slavik ) appeals from the April 22, 2019 Judgment of Conviction and Sentence; Notice of Entry of Judgment (Judgment ), entered by the Circuit Court of the Third Circuit (Circuit Court ) following a jury trial.¹ Slavik was convicted of: Carrying or Possessing a Loaded Firearm on a Public Highway (Possessing Loaded Firearm on Highway ), in violation of Hawaii Revised Statutes (HRS ) § 134-26(a) (2011) (Count 1 ); Permits to Acquire, in violation of HRS § 134-2(a) and § 134-17 (2011) (Count 2 ); Registration Mandatory, in violation of HRS § 134-3(b) and § 134-17 (Count 3 ); and Place to Keep Ammunition, in violation of HRS § 134-27(a) (2011) (Place to Keep ) (Count 5 ).²

I. BACKGROUND

On June 20, 2018, Hawai‘i County Police Department (HCPD ) Officers Henry Ivy (Officer Ivy ) and Denapoli Fui (Officer Fui ) conducted a welfare check on Slavik, who was sleeping in a car on the side of Mâmalahoa Highway, in the Ka‘û District of the County of Hawai‘i. When he approached the car, Officer Ivy noticed a pistol laying on the passenger seat, underneath Slavik's right hand. While Officer Fui approached on the driver side, Officer Ivy reached into the open passenger-side window and removed the gun, placing it on the ground, before they awoke Slavik.

Officer Ivy identified the gun as "[h]omemade brown wooden grip single-shot .22 caliber Rimfire pistol without any identifiable markings, brands or numbers." When the officers ran Slavik's information, they determined he had no firearm permits issued and no firearms registered in his name. On a pat-down of Slavik after his arrest, Officer Fui discovered a single .22 caliber round, along with some nuts, bolts, and coins, in Slavik's front left pocket.

On July 11, 2018, Slavik was charged by Information and Complaint (Complaint ) with seven counts; he was later tried and convicted on Counts 1, 2, 3, and 5, which read as follows:

COUNT 1 (C18017297/KU)

On or about the 20th day of June, 2018, in Kau, County and State of Hawai‘i, NIKOLAUS SLAVIK, intentionally and/or knowingly possessed and/or carried in a vehicle any firearm loaded with ammunition on a public highway, and NIKOLAUS SLAVIK was not licensed to carry a pistol or revolver and ammunition by the Chief of Police for the County of Hawai‘i, pursuant to Section 134-9, thereby committing the offense of Carrying or Possessing a Loaded Firearm on a Public Highway, in violation of 134-26(a), Hawai‘i Revised Statutes, as amended.

COUNT 2 (C18017310/KU)

On or about the 20th day of June, 2018, in Kau, County and State of Hawai‘i, NIKOLAUS SLAVIK intentionally, knowingly or recklessly acquired the ownership of a firearm, whether usable or unusable, serviceable or unserviceable, modern or antique, registered under prior law or by a prior owner or unregistered, either by purchase, gift, inheritance, bequest, or in any other manner, whether procured in the State or imported by mail, express, freight, or otherwise, without first procuring a permit to acquire the ownership of the firearm from the chief of police of the county of his place of business or, if there was no place of business, his place of residence or, if there was neither a place of business nor residence, his place of sojourn, thereby committing the offense of Permits to Acquire, in violation of Sections 134-2(a) and 134-17, Hawai‘i Revised Statutes, as amended.

COUNT 3 (C18017311/KU)

On or about the 20th day of June, 2018, in Kau, County and State of Hawai‘i, NIKOLAUS SLAVIK who intentionally and/or knowingly acquired a firearm pursuant to Section 134-2, Hawai‘i Revised Statutes, and such acquisition was by way of gift, inheritance, bequest, or in any other manner, whether such firearm is usable or unusable, serviceable or unserviceable, modern or antique, registered by prior law or unregistered, NIKOLAUS SLAVIK did intentionally, knowingly, or recklessly fail to register the firearm in the manner prescribed by section 134-3 within five days of acquisition, thereby committing the offense of Registration Mandatory, in violation of Sections 134-3(b) and 134-17, Hawai‘i Revised Statutes, as amended.

....

COUNT 5 (C18017344/KU)

On or about the 20th day of June, 2018, in Kau, County and State of Hawai‘i, NIKOLAUS SLAVIK, intentionally and/or knowingly possessed an item knowing it was ammunition, and he intentionally, knowingly, and/or recklessly was not licensed to carry a pistol or revolver and ammunition concealed on his person pursuant to Section 134-9 and, he was not engaged in hunting and/or target practice as provided in Section 134-5, and he intentionally, and/or knowingly failed to confine the ammunition to his place of business, residence, or sojourn and/or did fail to carry the ammunition in an enclosed container from the place of purchase to his place of business, residence, or sojourn, or between [locations], thereby committing the offense of Place to Keep Ammunition, in violation of Section 134-27(a), Hawai‘i Revised Statutes, as amended.

On September 4, 2018, Slavik filed a Motion to Dismiss Counts 1 and 5 of the Information/Complaint Due to Insufficient Charging Language (Motion to Dismiss ). Specifically, Slavik contended that the Complaint failed to allege that (1) the firearm and ammunition were operable, and (2) the state of mind at the time he possessed the object in question, i.e. , that when Slavik possessed the firearm and ammunition, he "believed, knew, or recklessly disregarded the substantial and unjustifiable risk, that the object was a prohibited item."

On October 25, 2018, after a hearing on the Motion to Dismiss, the Circuit Court entered an order denying the motion and finding that "[t]he charges as reflected in the Information and Complaint give[ ] sufficient notice to the Defendant as to the essential element of state of mind and the material element of firearm that he must defend against."

On August 21, 2018, Plaintiff-Appellee State of Hawai‘i (State ) filed a Notice of Intent to Use Specified Evidence, stating that it intended to present evidence relating to prior investigations and allegations of drug activity and/or Slavik's prior bad acts. Citing Hawai‘i Rules of Evidence (HRE ) Rule 404, the State stated that it intended to use evidence relating to Slavik's (alleged) conviction for Theft in the Second Degree, in case number CR15-1-0139K. The deputy prosecuting attorney (DPA ) attested that Slavik had been convicted of that offense on August 8, 2018. However, the record in that case indicates that the Circuit Court entered a deferred acceptance of guilty plea on December 1, 2015, which the State petitioned to set aside on June 26, 2018, after Slavik allegedly failed to comply with the terms of his probation. Court minutes in CR15-1-0139K indicate that a hearing was held on August 8, 2018, at which time the court orally granted the Motion to Set Aside. Nevertheless, a judgment of conviction was not entered in CR15-1-0139K until April 22, 2019, the same day that judgment was entered against Slavik in this case.

On December 21, 2018, the State filed its Motion in Limine No. 1 (State's Motion in Limine ) seeking an order permitting the introduction of the theft conviction "in its casein-chief for the limited purposes of establishing credibility and impeachment of the Defendant." On that day, Slavik filed Defendant's First Motion in Limine (Slavik's Motion in Limine ), which sought, inter alia , to exclude "[t]estimonial or documentary evidence relating to [Slavik's] prior criminal record except as specifically permitted by prior court order[.]"

At the December 28, 2018 hearing on, inter alia , both of these motions, the Circuit Court granted the State's motion "if the defendant testifies" and "if proper foundation is set." Defense counsel then attempted to clarify:

[DEFENSE COUNSEL]: My -- my only question would be is it simply Mr. Slavik testifying that allows them, or does Mr. Slavik need to say something that opens the door to the testimony?

THE COURT: Well, if he testifies it comes into play, and then they have to establish the proper foundation for its use.

[DEFENSE COUNSEL]: Okay.

THE COURT: So the answer is yes and yes.

On January 2, 2019, the Court entered Findings of Fact, Conclusions of Law, and Order Granting State's Motion in Limine No. 1 (Order Granting State's Motion in Limine ), finding and concluding that: "The State may use the Defendant's prior bad acts if the Defendant testifies and a proper foundation is laid."

At trial, which was held on January 2 and 3, 2019, the State called four witnesses, HCPD Officers Ivy and Fui, senior police records clerk for the HCPD Records and Firearms Section Arlene Young (Young ), and HCPD evidence custodian Gerald Arguello.

Officer Ivy testified that on the morning of June 20, 2018, he was on duty as a patrolman in the Ka‘û District. At approximately 7:15 a.m., Officer Ivy was informed by another officer of a phone report of a male party "asleep ... or possibly even unconscious or dead" in a vehicle off to the shoulder on Mâmalahoa Highway near Aloha Boulevard and "they wanted me to perform a welfare check on that...