§702-206  Definitions of states of mind. 
(1)  "Intentionally."



(a) A person acts intentionally with respect to his
conduct when it is his conscious object to engage in such conduct.



(b) A person acts intentionally with respect to
attendant circumstances when he is aware of the existence of such circumstances
or believes or hopes that they exist.



(c) A person acts intentionally with respect to a
result of his conduct when it is his conscious object to cause such a result.



(2)  "Knowingly."



(a) A person acts knowingly with respect to his
conduct when he is aware that his conduct is of that nature.



(b) A person acts knowingly with respect to attendant
circumstances when he is aware that such circumstances exist.



(c) A person acts knowingly with respect to a result
of his conduct when he is aware that it is practically certain that his conduct
will cause such a result.



(3)  "Recklessly."



(a) A person acts recklessly with respect to his
conduct when he consciously disregards a substantial and unjustifiable risk
that the person's conduct is of the specified nature.



(b) A person acts recklessly with respect to
attendant circumstances when he consciously disregards a substantial and
unjustifiable risk that such circumstances exist.



(c) A person acts recklessly with respect to a result
of his conduct when he consciously disregards a substantial and unjustifiable
risk that his conduct will cause such a result.



(d) A risk is substantial and unjustifiable within
the meaning of this section if, considering the nature and purpose of the
person's conduct and the circumstances known to him, the disregard of the risk
involves a gross deviation from the standard of conduct that a law-abiding
person would observe in the same situation.



(4)  "Negligently."



(a) A person acts negligently with respect to his
conduct when he should be aware of a substantial and unjustifiable risk taken
that the person's conduct is of the specified nature.



(b) A person acts negligently with respect to
attendant circumstances when he should be aware of a substantial and
unjustifiable risk that such circumstances exist.



(c) A person acts negligently with respect to a
result of his conduct when he should be aware of a substantial and
unjustifiable risk that his conduct will cause such a result.



(d) A risk is substantial and unjustifiable within
the meaning of this subsection if the person's failure to perceive it,
considering the nature and purpose of his conduct and the circumstances known
to him, involves a gross deviation from the standard of care that a law-
abiding person would observe in the same situation. [L 1972, c 9, pt of §1; am
L 1983, c 132, §1; am L 1986, c 314, §4]



 



COMMENTARY ON §702-206



 



  This section attempts to define the four states of mind which
the Code recognizes as sufficient to establish penal liability and to indicate
by definition the manner in which each state of mind is related to conduct,
attendant circumstances, and the results of conduct.



  The difference between acting intentionally, according to
subsection (1), and knowingly, according to subsection (2), is narrow but
nonetheless distinct.  The distinction lies in the fact that intent is
characterized by a conscious object to engage in certain conduct or cause a
certain result whereas knowledge is characterized by an awareness that conduct
is of a certain type or that a certain result will almost certainly obtain. 
While knowledge will in most instances suffice to establish penal liability,
there are a limited number of offenses which require an intent to effect a
particular result.



  Recklessness in subsection (3) deals not with the conscious
object of conduct or the relative certainty of conduct but rather with
disregard of certain probabilities.  Recklessness is the conscious disregard of
a known risk.  It goes without saying that the conscious disregard of every
risk of harm to a protected social interest should not, in every instance, be
sufficient to impose penal liability for an untoward eventuality.  Precision in
defining which risks the penal law will not let a defendant ignore is
impossible.  Following the lead of the Model Penal Code, the Code has labeled
the relevant risks as "substantial and unjustifiable" and in
subsection (3)(d) states the factors which ought to be considered in determining
whether the disregard of the risk should be condemned.  The Reporter to the
Model Penal Code has stated the issue concisely:



The draft
requires, however, that the risk thus consciously disregarded by the actor be
"substantial" and "unjustifiable"; even substantial risks
may be created without recklessness when the actor seeks to serve a proper
purpose, as when a surgeon performs an operation which he knows is very likely
to be fatal but reasonably thinks the patient has no other, safer chance. 
Accordingly, to aid the ultimate determination, the draft points expressly to
the factors to be weighed in judgment:  the nature and degree of the risk
disregarded by the actor, the nature and purpose of his conduct and the
circumstances known to him in acting.



  Some principle must be articulated, however, to indicate what
final judgment is demanded after everything is weighed.  There is no way to
state this value judgment that does not beg the question in the last analysis;
the point is that the jury must evaluate the conduct and determine whether it
should be condemned.[1]



  The fourth type of culpability which the Code recognizes is
negligence.  It is distinguished from the other three types of culpability
(intent, knowledge, and recklessness) in that it does not involve a state of
awareness on the part of the defendant.  Rather, negligence involves the
inadvertent creation by the defendant of a risk of which the defendant would
have been aware had the defendant not deviated grossly from the standard of
care that a law-abiding person would have observed in the same situation.  As
in the case of recklessness, the risk which the negligent defendant failed to
perceive must be "substantial and unjustifiable."  In the final
analysis the jury will have to address themselves to the factors listed in
subsection (4)(d)-- i.e., the nature and degree of the risk, the defendant's
purpose, the circumstances known to the defendant, and the degree of deviation
from a standard of ordinary care, and determine whether the behavior of the defendant
should be condemned.



  Of the four states of mind which this Code recognizes as
sufficient for penal liability, negligence is the least condemnable because, by
hypothesis, the defendant was inadvertent.[2]  It has been argued that
negligence is not a proper subject of penal--as opposed to civil--law.[3]  The
Code, however, adopts the position that:



Knowledge that
conviction and sentence, not to speak of punishment, may follow conduct that
inadvertently creates improper risk supplies men with an additional motive to
take care before acting, to use their faculties and draw on their experience in
gauging the potentialities of contemplated conduct.  To some extent, at least,
this motive may promote awareness and thus be effective as a measure of control.... 
Accordingly, we think that negligence, as here defined, cannot be wholly
rejected as a ground of culpability which may suffice for purposes of penal
law, though we agree that it should not be generally deemed sufficient in the
definition of specific crimes, and that it often will be right to differentiate
such conduct for the purposes of sentence.[4]



  In the definitions of "recklessly" and
"negligently" the Code refers to the "standard of conduct"
or "standard of care that a law-abiding person would observe in the same
situation."  The reference to the defendant's situation is not entirely
clear.  If the actor received a blow to the head or was blind, certainly these
factors would be considered in assessing the actor's situation.  On the other
hand, factors such as "heredity, intelligence or temperament" could
not be considered "without depriving the criterion of all of its
objectivity."[5]  Further discriminations of this sort must, of necessity,
be left to the courts.



  Previous Hawaii statutory law did not define any mental state
except "malice," which was so imprecisely defined as to run the gamut
of culpability and be meaningless.[6]



  Although "intent," "knowledge,"
"recklessness," and "negligence" are used extensively in
the present penal code, these terms have not been judicially defined in a penal
context.[7]  This section of the Code will supply the needed definitions.



 



SUPPLEMENTAL COMMENTARY ON §702-206



 



  The Legislature adopted §206 as contained in the Proposed
Draft of the Code; however, the Legislature also added to the Code the offense
of negligent homicide in the second degree, set forth in §707-704, which
introduces a less culpable state of mind called "simple negligence" -
essentially a civil standard of negligence.  (Cf. §§702-204, 213, and 707-704,
and the commentaries thereon.)



  In a prosecution under Hawaii trespass law prior to the
enactment of the Code, the defendants sought to attack the statute in question
on the grounds of vagueness, indefiniteness, and overbreadth for failure to
require knowledge as "an element of the offense."  In disposing of
this contention, the court said:



Moreover,
however, [sic] "knowledge" be defined, the failure of a statute to
provide for knowledge as an element of a crime does not ipso facto render a statute
unconstitutional.  For not only are there statutory crimes without any
requirement of intention or knowledge, but, as we noted in State v. Taylor, 49
Haw. 624, 636-7, 425 P.2d 1014, 1022 (1967), the applicable test for vagueness
and overbreadth, which we adopted from Boyce Motor Lines v. United States, 342
U.S. 337, 340-1 (1952), is not a checklist of requirements but is far more
general.



State v. Marley, 54 Haw. 450, 459-460, 509 P.2d 1095, 1102-1103
(1973).  The court cited, as examples of offenses which do not require that the
actor act intentionally or knowingly, §712-1217 (open lewdness), §708-871
(reckless false advertising), and §707-741 (incest).



  Act 314, Session Laws 1986, amended the definitions of
"recklessly" and "negligently" in subsections (3) and (4). 
Amendments to these definitions in 1985 had the unintended effect of changing
the definitions from "requiring a conscious disregard of a risk that the
actor engages in a type of conduct to a conscious disregard of a risk created by
the actor's conduct".  The amendments made by Act 314 changed the
definitions back to their original meaning.  Conference Committee Report No.
51-86.



 



Case Notes



 



  Instruction on killing "recklessly" discussed.  60
H. 17, 586 P.2d 1028.



  Substantial evidence in record supported trial court's
conclusion that parent "knowingly" caused son's death.  73 H. 236,
831 P.2d 924.



  There was sufficient evidence that minor acted knowingly
where trial court could infer from the amount of force minor used to punch
victim in the face, that minor was aware that it was practically certain that
minor's conduct would cause the result of substantial bodily injury.  107 H.
12, 108 P.3d 966.



  The reckless state of mind definition under subsection (3)
(1993) applies to the reckless driving statute §291-2; in determining whether
an identified risk is substantial and unjustifiable under subsection (3), the
nature and degree of the risk disregarded by the actor, the nature and purpose
of the actor's conduct, and the circumstances known to the actor in acting must
be weighed.  113 H. 321, 151 P.3d 802.



  Where jury could have reasonably found that defendant care
home operator knew of the risks of infection and failed to provide resident
with the care that was within defendant's capabilities, which care would have
prevented the progression of the infection that caused resident's death, and
defendant had a duty to take resident to follow-up appointment with doctor and
consciously disregarded a substantial and unjustifiable risk that failure to
perform this duty would cause resident's death, sufficient evidence to support
jury's finding that State proved manslaughter by omission, including the
requisite state of mind.  104 H. 387 (App.), 90 P.3d 1256.



  State produced sufficient evidence to show that defendant
acted with reckless mens rea with respect to the attendant circumstances of the
driving while license suspended or revoked for driving under the influence
offense; defendant's conscious disregard of the risk that defendant's license remained
revoked or suspended for DUI-alcohol was a gross deviation from the standard of
conduct that a law-abiding person would observe in the same situation.  106 H.
123 (App.), 102 P.3d 367.



  Where defendant punched and kicked another so ferociously in
the face that the lip was split clean through, four teeth were bashed in, the
eye was hemorrhaged and pushed inward, and the orbital floor was fractured
causing blurred and diplopic vision lasting almost eleven months, there was
substantial evidence that the defendant was, at the very least, aware that it
was practically certain that defendant's conduct would cause the result
required, "serious bodily injury", for conviction of first degree
assault.  106 H. 530 (App.), 107 P.3d 1203.



  State failed to adduce substantial evidence that defendant
"consciously disregarded" any risk to "the safety of persons or
property"; even viewed "in the strongest light for the
prosecution", the evidence that defendant disregarded a stop sign was not
"of sufficient quality and probative value to enable a person of
reasonable caution to support a conclusion" that defendant's driving
"involved a gross deviation from the standard of conduct that a
law-abiding person would observe in the same situation".  112 H. 233
(App.), 145 P.3d 776.



  Under this section, 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 §702-204, 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.



 



__________



§702-206 Commentary:



 



1.  M.P.C., Tentative Draft No. 4, comments at 125 (1955).



 



2.  Id. at 126.



 



3.  Williams, The Criminal Law - The General Part 122-124
(1961); Hall, Negligent Behavior Should Be Excluded From Penal Liability, 63
Colum. L. Rev. 632 (1963).



 



4.  M.P.C., Tentative Draft No. 4, comments at 126-127 (1955).



 



5.  Id. at 126.



 



6.  H.R.S. §701-4.



 



7.  But cf. State v. Tamanaha, 46 Haw. 245, 377 P.2d 688
(1962), deciding that "ordinary negligence" was sufficient for
conviction of the traffic offense of careless and heedless driving.