§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
(2000).
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 (2000).
__________
§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.
Notes of Decisions
Cited in
16
cases (
3 in the last 5 years), 1991–2025 · leading case:
State v. Jenkins, 997 P.2d 13 (Haw. 2000).
State v. Jenkins, 997 P.2d 13 (Haw. 2000).
· cites it 54× “[19] Because, "possession," in itself, need not entail a "bodily movement" or an "omission," see supra note 19, HRS § 702-202 (1993) provides expressly that "possession" is a voluntary act only "if the defendant knowingly procured or received the thing possessed or if the…”
State v. Kupihea, 46 P.3d 498 (Haw. 2002).
· cites it 30× “Referring to the requirement in HRS § 702-202 (1993) that the defendant “know *201 ingly procured or received the thing possessed,” this court, in Jenkins , pointed out that the commentary on HRS § 702-202 indicated the words “ ‘thing possessed’ [in HRS § 702-202] refers to the…”
State v. Hironaka, 53 P.3d 806 (Haw. 2002).
· cites it 16× “" Hironaka misreads both the holding of Hogue and its continuing vitality following the enactment of HRS § 702-202. In Hogue , this court approved the Florida Supreme Court's definition of possession "conscious and substantial possession .”
State v. Auwae, 968 P.2d 1070 (Haw. App. 1998).
· cites it 12× “Accordingly, by virtue of HRS § 701-102, HRS § 702-202, which relates to the act of possession, applies to HRS § 134 — 7(b).”
State v. Moniz, 992 P.2d 741 (Haw. App. 1999).
· cites it 16× “" HRS § 702-202 (1993). After the passage of the Hawai`i Penal Code (HPC) in 1973, I consider the relevant definition of possession is that which is set forth in the HPC.”
State v. Foster., 282 P.3d 560 (Haw. 2012).
· cites it 29× “In Jenkins, this court clarified the state of mind required to establish possession of an item and set out a two- prong analysis for determining the voluntariness of “possession” under HRS § 134-7(b): (1) the voluntary act of “possession” of an object itself is, by way of HRS §…”
State v. Valentine, 998 P.2d 479 (Haw. 2000).
· cites it 6× “We have recently held that: *210 for the purposes of HRS § 134-7(b), “possession” must be analyzed employing a two-pronged analysis: (1) the voluntary act of “possession” of an object itself is, by way of HRS § 702-202,[ 4 ] satisfied where an individual acts knowingly with…”
State v. Aiwohi, 123 P.3d 1210 (Haw. 2005).
· cites it 4× “, "Carrying or use of firearm in the commission of a separate felony,"] `carry' must be analyzed employing a two-pronged analysis: (1) the voluntary act of `carrying' an object is, by way of HRS § 702-202, established when an individual acts knowingly with respect to that…”
State v. Brown, 37 P.3d 572 (Haw. App. 2001).
· cites it 4× “In Jenkins , the supreme court explained that, pursuant to HRS § 702-202 (1993), 9 the first prong of possession is satisfied when an individual acts knowingly with respect to his or her conduct.”
State v. Astronomo, 18 P.3d 938 (Haw. App. 2001).
· cites it 4× “Second, it quoted the following precedent: [F]or the purposes of HRS § 134—7(b), “possession” must be analyzed employing a two-pronged analysis: (1) the voluntary act of “possession” of an object itself is, by way of HRS § 702-202, satisfied where an individual acts knowingly…”
State v. Agard, 151 P.3d 802 (Haw. 2007).
· cites it 2× “8 (2002) (concluding that, based on HRS § 701-102(3), “the provisions of the [Code], such as HRS §§ 702-202 and -204 [ (1993) ], are applicable to HRS § 329-43.”
State v. Mundell, 822 P.2d 23 (Haw. App. 1991).
· cites it 2× “5 In HRS § 702-202 (1985) the voluntariness of possession is described as follows: Voluntary act includes possession.”
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