§702-202  Voluntary act includes possession. 
Possession is a voluntary act if the defendant knowingly procured or received
the thing possessed or if the defendant was aware of the defendant's control of
it for a sufficient period to have been able to terminate the defendant's
possession. [L 1972, c 9, pt of §1; gen ch 1993]



 



COMMENTARY ON §702-202



 



  Offenses of possession are pervasive in the law, but
possession per se is not a bodily movement or an omission, although the course
of conduct leading to or continuing possession might include a voluntary act or
omission.  Therefore, this section makes it explicit that possession is an act,
within the meaning of §§702-200 and 201, if the possessor knowingly procured or
received the thing possessed or was aware of control thereof for a sufficient
period to have been able to terminate possession.  The "thing
possessed" refers to the physical object per se, knowledge of particular
qualities or properties of the physical object possessed is dealt with as a
mens rea problem in subsequent sections.



  Hawaii law has had many statutes making various kinds of
possession illegal.[1]  When considered with the previous statutory requirement
that penal liability must be based on "doing what the penal law
forbids"[2] the logical implication of such statutes was that possession
is an act within the penal law.  This section merely states that position with
greater clarity.



 



Case Notes



 



  For purposes of §134-6(e), "carry" must be analyzed
employing a two-pronged analysis: (1) the voluntary act of "carrying"
an object is, by way of this section, established when an individual acts
knowingly with respect to that conduct; and (2) the requisite state of mind
with respect to the circumstances attendant to "carrying" that
object, i.e., the object's particular attributes rendering its carrying a
criminal offense--the quality of being a firearm--is, by way of §702-204,
established by proof of a reckless state of mind.  93 H. 87, 997 P.2d 13.



  For the purposes of §134-7(b), "possession" must be
analyzed using a two-pronged analysis:  (1) the voluntary act of
"possession" of an object "itself" is, by way of this
section, satisfied where an individual acts knowingly with respect to his or
her conduct; and (2) the requisite state of mind with respect to the attendant
circumstances--i.e., the particular qualities of the object that make it
illegal to possess it--is, by way of §702-204, satisfied by a reckless state of
mind.  93 H. 87, 997 P.2d 13.



__________



§702-202 Commentary:



 



1.  E.g., H.R.S. §134-51 (concealed deadly weapon); H.R.S.
§134-52 (switchblade knife).



 



2.  H.R.S. §701-1.