§702-204  State of mind required. 
Except as provided in section 702-212, a person is not guilty of an offense
unless the person acted intentionally, knowingly, recklessly, or negligently,
as the law specifies, with respect to each element of the offense.  When the
state of mind required to establish an element of an offense is not specified
by the law, that element is established if, with respect thereto, a person acts
intentionally, knowingly, or recklessly. [L 1972, c 9, pt of §1; gen ch 1993]



 



COMMENTARY ON §702-204



 



  This section commences the Penal Code's consideration of the
mental aspect or state of mind which will, in most instances, be required for
the imposition of penal liability.  It must, of course, be read in conjunction
with the following section defining "element" of an offense and in
conjunction with §702-212 which provides for those relatively few instances
when absolute or strict penal liability will be recognized.



  Clear analysis requires that the various distinct ingredients
of an offense be separately recognized and that culpability be required as to
each.  These distinct ingredients are (1) the conduct, (2) the attendant
circumstances, and (3) the results of conduct, which are specified in the
definition of an offense and which negative a defense on the merits.  Section
702-205 denominates these ingredients as "elements."  The analytical
effect of requiring a culpable state of mind with respect to each element
should be obvious.  For example, one who intends sexual intercourse with a female
whom he has no reason to suspect is not qualified to consent to the behavior
should not be held to have committed an offense because he intends the act.[1]



  The distinct punitive nature of the penal law dictates that
its sanction be reserved for those individuals who can be morally condemned. 
The penal law does not, in most instances, condemn a person's conduct alone. 
Rather, it condemns the individual whose state of mind with regard to the
individual's conduct, attendant circumstances, and the result of the
individual's conduct, exhibits an intent to harm, an indifference to harming,
or a gross deviation from reasonable care for protected social values.  Thus we
have limited penal liability to those individuals who act intentionally,
knowingly, recklessly, or negligently contrary to values protected by the Code.



  The four types of mental states which the Code recognizes as
sufficient for penal liability (intent, knowledge, recklessness, and
negligence) are defined in subsequent sections.



  When a particular state of mind is required to establish the
elements of an offense, it will usually be specified in the definition of the
offense, however it may be separately specified by another provision of law. 
In the absence of any such specification, intent, knowledge or recklessness
will suffice.  Negligence with respect to the element of an offense will not
establish that element unless specifically so provided.



  The previous Hawaii law runs the gamut of what has been
called, "the variety, disparity and confusion" of attempts to state
"the requisite but elusive mental element" of penal offenses.[2]  For
example, assault required that the defendant act intentionally and maliciously,
whereas battery required that the defendant act unlawfully and intentionally. 
Crimes involving bribery of officials or influencing of jurors required that
the defendant act "corruptly."  Child stealing required that the
defendant act "maliciously by fraud, force or deception."  Murder in
the first degree required that the defendant act "with deliberate
premeditated malice aforethought."  Negligent homicide, which was limited
to causing death by operation of a vehicle, required "grossly
negligent" operation for a first degree (felony) conviction, but only "negligent"
operation for a second degree (misdemeanor) conviction.[3]  When the courts
have dealt with the requisite state of mind, their suggestions have not always
been helpful.  In a case of extortion where the statutory language read
"wilfully and corruptly extorts," the court suggested that a correct
indictment should read "unlawfully, wilfully, corruptly, feloniously and
extorsively did extort..."[4]



  It is safe to say that, for the purpose of the penal law,
there are no subtleties of meaning in the language used in the prior law which
cannot be achieved in a clear, lucid fashion by limiting the relevant states of
mind to intent, knowledge, recklessness, and negligence.



 



SUPPLEMENTAL COMMENTARY ON §702-204



 



  The Legislature adopted §702-204 of the Proposed Draft
without change.  However, the reader should carefully analyze the changes which
the Legislature made to Part V of Chapter 707, dealing with sex offenses, to
determine whether the Legislature intended to create an exception to the
general principle expressed in §702-204.  See also, Supplemental Commentaries
on §§702-206 and 213, and 707-704 and the commentaries thereon.



 



Law Journals and Reviews



 



  Agonizing Over Aganon:  A New Approach to Drafting Jury
Instructions in Criminal Cases.  10 HBJ No. 13, at pg. 73.



 



Case Notes



 



  Section applies to §15-26.3 of the City and County Traffic
Code and furnishes the state of mind required.  58 H. 314, 568 P.2d 507.



  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 §702-202, 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 this section, 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 §702-202,
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 this section, satisfied by a reckless
state of mind.  93 H. 87, 997 P.2d 13.



  As there is no state of mind element for the offenses
designated under §291-4.4 or 291-4.5, pursuant to this section, these offenses
are committed if the defendant acted with an intentional, knowing, or reckless
state of mind.  95 H. 94, 19 P.3d 42.



  In order to convict under §291-12, the prosecution has the
burden of proving beyond a reasonable doubt that defendant (1) operated a
vehicle "without due care or in a manner," (conduct) (2) "as to
cause a collision with, or injury or damage to, as the case may be, any person,
vehicle or other property" (result of conduct), and that defendant did so
(3) intentionally, knowingly, or recklessly.  118 H. 1, 185 P.3d 186.



  As the requisite state of mind for the value element of the
insurance fraud offense is not specifically mentioned in §431:10C-307.7(b)(2),
pursuant to this section, the state of mind for the value element of insurance
fraud is "intentionally, knowingly, or recklessly".  117 H. 26
(App.), 175 P.3d 136.



  Under §702-206, the term "intentional", as applied
to the value-attendant-circumstance element of the insurance fraud offense
under §431:10C-307.7, means "believes"; also, §708-801(4) indicates
that either a defendant's "belief" or "knowledge" is
sufficient to establish an intentional or knowing state of mind as to the value
element; thus, pursuant to this section, as a "reckless" state of
mind was applicable to the value element of the insurance fraud offense,
defendant was not exposed to a conviction based on a state of mind lower than
what was required.  117 H. 26 (App.), 175 P.3d 136.



 



__________



§702-204 Commentary:



 



1.  Present Hawaii law on contributing to the delinquency of a
minor is the opposite.  See Territory v. Delos Santos, 42 Haw. 102 (1957).



2.  Morissette v. United States, 342 U.S. 246, 252 (1952).



3.  H.R.S. §748-9.



4.  Territory v. Wills, 25 Haw. 747, 761 (1921).