Notice, Not Mens Rea: Hawaiʻi Supreme Court Holds Indictments Need Not Plead a State of Mind for HRS § 706-660.1 Firearm Sentencing Enhancements

Case: State v. Smith, SCWC-21-0000504

Court: Supreme Court of Hawaiʻi

Date: September 12, 2025

Opinion by: Recktenwald, C.J. (McKenna, J., concurring and dissenting)

Introduction

This opinion resolves a recurring charging-and-sentencing question at the intersection of Hawaiʻi’s Penal Code and constitutional due process: when the State seeks a firearm-related mandatory minimum under HRS § 706-660.1, must the indictment also plead a state of mind (mens rea) for the enhancement? The Supreme Court of Hawaiʻi answers “no.”

The case arises from a 2018 Kona shooting in which Brian Lee Smith was indicted for second-degree murder (Count 1) and attempted second-degree murder (Count 2), each with a sentencing enhancement allegation under HRS § 706-660.1 for possessing, using, or threatening the use of a firearm “while engaged in the commission of the felony.” The enhancement allegations did not specify a state of mind. A jury convicted Smith on certain counts and found the firearm enhancement facts by special interrogatories. On appeal, the ICA vacated some convictions due to an evidentiary error, and the case returned to the circuit court for retrial on affected counts. On remand, Smith moved for the first time to strike the § 706-660.1 allegations as defective for omitting a mens rea. The circuit court agreed and struck the enhancements, but the ICA vacated that order. The Supreme Court accepted certiorari to decide a single legal question: whether the omission of a state of mind for the § 706-660.1 enhancement renders the charging instrument defective.

This commentary explains the Court’s holding, its doctrinal foundations, and its implications for Hawaiʻi criminal practice—especially the distinction between “offense elements” and “sentencing enhancement facts,” the reach of Apprendi/Alleyne, and the scope of Hawaiʻi’s pleading rules under Nesmith/Gonzalez and Motta/Wells.

Summary of the Opinion

Holding 1 (Element vs. enhancement): The presence, use, or threatened use of a firearm under HRS § 706-660.1 is a sentencing enhancement factor, not an “element of an offense” within the meaning of HRS § 702-205. Therefore, HRS § 702-204’s default mens rea pleading rule for elements of offenses does not apply.
Holding 2 (Due process and notice): Due process is satisfied if the charging instrument provides notice that the State will seek a § 706-660.1 enhancement and alleges facts supporting its application. The indictment need not plead a separate state of mind for the enhancement.
Apprendi/Alleyne compliance remains required: Although enhancement facts must be alleged and found by a jury beyond a reasonable doubt to comply with Apprendi/Alleyne, that does not transform the enhancement into an “element of the offense” for Penal Code pleading purposes.
Actual knowledge and Motta/Wells: Even if a mens rea allegation were required, the record showed that Smith had actual notice from the first trial’s jury instructions. Additionally, because the challenge was raised post-appeal, the liberal Motta/Wells construction applies; the indictment here can reasonably be construed to give fair notice and no prejudice was shown.
Disposition: The Court affirms the ICA’s judgment vacating the circuit court’s order striking the § 706-660.1 allegations and remands for further proceedings.

Background and Procedural History

On June 23, 2018, Smith shot and killed Thomas Ballesteros and shot and injured Nikolaus Slavik near Smith’s residence in Kona. A grand jury charged seven counts, including Counts 1 and 2 for murder and attempted murder, each alleging that Smith was “subject to sentencing” under HRS § 706-660.1 because he had a firearm in his possession, used it, or threatened its use during the felony. The indictment did not set out a mens rea for that enhancement language. The State also charged two counts under HRS § 134-21(a) (“Carrying or Use of Firearm in the Commission of a Separate Felony”), which do include mens rea terms.

At trial, the jury received special interrogatories directing a unanimous answer whether the State proved beyond a reasonable doubt that Smith “intentionally used and/or threatened to use a firearm” during the commission of the offense. The jury answered yes and the court imposed mandatory minimums under § 706-660.1.

On Smith’s first appeal, the ICA vacated certain counts because the circuit court improperly restricted cross-examination of Slavik. On remand, Smith moved to strike the § 706-660.1 allegations for omitting mens rea, arguing they were “elements” under Auld/Alleyne and thus subject to HRS § 702-204 pleading rules. The circuit court agreed and struck the enhancement allegations. The ICA vacated that order, holding § 706-660.1 is not an element and that mens rea pleading is unnecessary for the enhancement. The Supreme Court granted certiorari to review that decision.

Analysis

1) Precedents Cited and Their Influence

State v. Wagner, 139 Hawaiʻi 475, 394 P.3d 705 (2017): Central to the Court’s reasoning. Wagner held that a defendant’s prior conviction, used to increase punishment for methamphetamine trafficking, is a sentencing enhancement factor and not an offense element, based on statutory text, structure, and legislative history. The Court applied Wagner’s mode of analysis to § 706-660.1, concluding firearm possession/use is likewise a sentencing factor because it operates post-conviction and appears in the sentencing chapter (HRS ch. 706), not in the substantive offense definition. Wagner also emphasized due process concerns in contexts where offense grading affects the right to jury trial; those concerns were absent here because the underlying offenses are felonies in any event.
State v. Auld, 136 Hawaiʻi 244, 361 P.3d 471 (2015): The Court distinguishes Auld. Auld, applying Alleyne, held that predicate facts for repeat-offender mandatory minimums must be charged and proved to a jury beyond a reasonable doubt. But Auld’s description of such facts as “elements” uses the Apprendi/Alleyne sense (facts that increase punishment), not the Penal Code’s definition of an “element of an offense” under HRS § 702-205. Auld did not convert sentencing factors into offense elements for purposes of HRS § 702-204 pleading rules.
Apprendi v. New Jersey, 530 U.S. 466 (2000), and Alleyne v. United States, 570 U.S. 99 (2013): Both require that any fact (other than a prior conviction) that increases the statutory maximum or minimum be charged and found by a jury beyond a reasonable doubt. The Court adheres to these directives but clarifies they do not redefine “element of an offense” for Hawaiʻi Penal Code purposes.
State v. Nesmith, 127 Hawaiʻi 48, 276 P.3d 617 (2012), and State v. Gonzalez, 128 Hawaiʻi 314, 288 P.3d 788 (2012): These cases require that an offense charge include the requisite state of mind when the statute does not specify it, to alert the accused “what they must defend against to avoid a conviction.” The Court limits Nesmith/Gonzalez to offenses, not sentencing enhancements, because an enhancement applies only post-conviction and does not affect the conduct required to avoid conviction on the underlying offense.
State v. Jendrusch, 58 Haw. 279, 567 P.2d 1242 (1977), and State v. Mita, 124 Hawaiʻi 385, 245 P.3d 458 (2010): Foundational charging cases establishing that omission of an essential offense element is a substantive defect implicating due process. Relied upon for general charging principles, but not dispositive here because § 706-660.1 sets no offense element.
State v. Domingues, 106 Hawaiʻi 480, 107 P.3d 409 (2005), and State v. Kekuewa, 114 Hawaiʻi 411, 163 P.3d 1148 (2007): Concerned due process notice when offense grading affects entitlement to a jury. Cited to show why treating enhancement facts as sentencing factors does not raise such concerns in this case.
State v. Jess, 117 Hawaiʻi 381, 184 P.3d 133 (2008), and State v. Maugaotega (Maugaotega II), 115 Hawaiʻi 432, 168 P.3d 562 (2007): Addressed the intrinsic/extrinsic fact distinction in extended-term sentencing after Cunningham. The Court notes those decisions are not about mens rea or pleading: they are not dispositive of the enhancement-pleading issue here.
State v. Israel, 78 Hawaiʻi 66, 890 P.2d 303 (1995): Supports the “actual knowledge” doctrine: a defendant’s constitutional right to notice is satisfied if the record clearly demonstrates actual knowledge of the accusation. The first trial’s enhancement instructions supplied such knowledge.
State v. Motta, 66 Haw. 89, 657 P.2d 1019 (1983), and State v. Wells, 78 Hawaiʻi 373, 894 P.2d 70 (1995): Establish the “Motta/Wells” liberal construction for charging defects first raised on appeal. The Court analogizes and applies the same policy to a post-appeal remand challenge to enhancement language: the indictment is presumed valid unless it cannot reasonably be construed to allege a crime or prejudice is shown.
Related authorities: State v. Wheeler, 121 Hawaiʻi 383, 219 P.3d 1170 (2009) (Motta/Wells posture), State v. Merino, 81 Hawaiʻi 198, 915 P.2d 672 (1996), State v. Kauhane, 145 Hawaiʻi 362, 452 P.3d 359 (2019) (standards and notice), State v. Van Blyenburg, 152 Hawaiʻi 66, 520 P.3d 264 (2022), State v. Aquino, 154 Hawaiʻi 388, 550 P.3d 1246 (2024) (centrality of notice), State v. Tran, 154 Hawaiʻi 211, 549 P.3d 296 (2024) (policy underpinnings).

2) The Court’s Legal Reasoning

Step A — The enhancement is not an “element of an offense” under HRS § 702-205

Applying Wagner’s framework, the Court examines the text, structure, and legislative history of § 706-660.1, as well as due process considerations:

Text: By its terms, the enhancement applies only after a defendant is “convicted of a felony.” It sets mandatory minimums when the defendant had, used, or threatened to use a firearm “while engaged in the commission of the felony.” This is language governing sentencing consequences post-conviction, not the definition of proscribed conduct or attendant circumstances of a substantive offense.
Structure: § 706-660.1 resides in HRS Chapter 706, the sentencing chapter. The substantive offense for firearm conduct contemporaneous with a felony is codified separately at HRS § 134-21 (which the State actually charged in Counts 6 and 7 and which includes mens rea terms). The separation reinforces that § 706-660.1 is not an offense-creating provision.
Legislative history: Act 204 (1976) aimed to “discourage the use of firearms” via “strong and more certain penalties,” and Act 260 (1987) clarified judicial discretion by allowing mandatory minimums even for “mere possession” during a felony (restoring “or” to include possession in addition to use/threat). The Conference Committee report described these as sentencing decisions, underscoring the legislature’s understanding that these are enhancement factors, not offense elements.
Due process/jury-right considerations: Unlike Domingues/Kekuewa contexts where offense grading affects jury entitlement, the underlying crimes here are felonies whether or not the enhancement applies. The enhancement therefore does not alter whether a jury trial right attaches. Notice concerns are addressed by alleging the enhancement and the facts supporting it—precisely what the indictment did.

Step B — Auld and Alleyne do not transform sentencing factors into Penal Code “elements”

While Apprendi and Alleyne require that any fact increasing the penalty be charged and found by a jury beyond a reasonable doubt (and Auld implements that rule for Hawaiʻi’s repeat-offender statute), those decisions do not redefine “element of an offense” under HRS § 702-205. The Court draws a clear terminological boundary: “elements” in the Apprendi/Alleyne sense are “facts that increase punishment,” but they do not automatically become “elements of an offense” that trigger HRS § 702-204’s default mens rea pleading requirement. Thus, even though § 706-660.1 facts must be alleged and proved to a jury, they need not have a separately pleaded mens rea in the indictment.

Step C — Due process and Hawaiʻi’s charging jurisprudence (Nesmith/Gonzalez)

Nesmith and Gonzalez insist that the charging instrument include the requisite state of mind where the offense’s law does not specify one, to give fair notice of “what must be defended against to avoid conviction.” That rationale is inapplicable to sentencing enhancements, which take effect only after conviction. Requiring an indictment to plead a mens rea for § 706-660.1 would not assist the defendant in avoiding conviction on the underlying offense. Due process is satisfied where the indictment gives clear notice that the State will seek the enhancement and alleges facts supporting its application.

Step D — Actual knowledge and the Motta/Wells posture

Actual knowledge: Even if a separate mens rea allegation were required, the record showed Smith had actual notice, as demonstrated by the first trial’s jury interrogatories asking whether he “intentionally used and/or threatened to use a firearm” during the offense. Under Israel, such clear record evidence satisfies constitutional notice concerns.
Motta/Wells liberal construction: Smith’s challenge was raised only after appeal and on remand. The Court extends Motta/Wells’s liberal construction, presuming the charge valid unless it cannot reasonably be construed to allege a crime or the defendant shows prejudice. Here, the enhancement was properly alleged; it is not an offense element requiring a mens rea plea; and Smith showed no prejudice. The indictment adequately notified him that the State would seek § 706-660.1 and set forth supporting facts.

3) Impact and Practical Consequences

Charging practice

No separate mens rea pleading for § 706-660.1: Prosecutors need not plead a state of mind for the firearm enhancement in the indictment or complaint. They must, however, expressly allege the enhancement and the facts supporting it to provide notice and to satisfy Apprendi/Alleyne.
Parallel charging under HRS § 134-21: The decision underscores the distinction between the enhancement (§ 706-660.1) and the substantive felony firearms offense (§ 134-21), which carries its own mens rea. Charging both remains proper and can reinforce notice.

Trial practice

Jury findings still required: Enhancement facts must be submitted to the jury and proven beyond a reasonable doubt via special interrogatories or verdict forms, ensuring Apprendi/Alleyne compliance.
Mens rea at trial vs. in pleading: The Court did not resolve what mental state, if any, is substantively required to find the enhancement facts (especially for “possession”). Many trial courts will continue instructing on intentional use/threat where applicable, but the precise mens rea (if any) for “possession” under § 706-660.1 remains a potential area for future litigation and refined jury instructions.

Appellate posture and preservation

Timely objections matter: Defendants who wish to contest the sufficiency of enhancement allegations should object before or during trial. Post-appeal challenges will face Motta/Wells’s presumption of validity and a requirement to show prejudice.
Actual knowledge can cure: When the record clearly demonstrates that the defendant knew the enhancement would be sought and what facts were at issue, “actual knowledge” can satisfy notice concerns.

Substantive law clarifications

Terminology clarified: The Court cleans up prior confusion by distinguishing “elements” in the Apprendi/Alleyne sense (facts that increase punishment) from Penal Code “elements of an offense” under HRS § 702-205. This distinction will guide future pleading disputes involving other sentencing schemes (e.g., repeat offender statutes, extended terms).
Legislative history reaffirmed: The decision aligns with the legislature’s design of § 706-660.1 as a sentencing tool—particularly after the 1987 amendment restoring “or” to include mere possession—confirming judicial discretion in imposing mandatory minimums once predicate facts are found by a jury.

Open questions and likely future litigation

Mens rea for “possession” prong: The Court did not decide whether, or what, mental state attaches to the “possession” variant of § 706-660.1 at the trial proof stage. Parties should be prepared to litigate appropriate jury instructions grounded in general culpability principles, even though no separate pleading is required.
Scope beyond firearms: The Court’s reasoning may influence how other Hawaiʻi sentencing enhancements are pleaded and proved, including the degree to which Nesmith/Gonzalez’s mens rea pleading rule applies to enhancements as opposed to substantive offense elements.

Complex Concepts Simplified

Element of an offense (HRS § 702-205): The conduct, attendant circumstances, and results that define the crime itself. If the statute does not specify a mental state for an element, HRS § 702-204 supplies a default (intentional, knowing, or reckless).
Sentencing enhancement factor: A fact that increases punishment after conviction. It must be alleged and proved to a jury beyond a reasonable doubt (Apprendi/Alleyne), but it is not part of the offense definition for purposes of pleading a mens rea.
Apprendi/Alleyne “element” vs. Penal Code “element”: Apprendi/Alleyne use “element” to mean any fact increasing the penalty. Hawaiʻi’s Penal Code uses “element” to describe what constitutes the offense itself. The Smith decision insists on this distinction for pleading purposes.
Mandatory minimum vs. indeterminate term: Under § 706-660.1, the court may impose a mandatory minimum (no parole or probation during that period) in addition to the underlying indeterminate term. The enhancement is not subject to the minimum-term procedure in § 706-669, and parole procedures attach only after the mandatory minimum ends.
Motta/Wells rule: If a defendant raises a charging defect only after trial or on appeal, courts presume the charge valid and construe it liberally; reversal requires showing the charge cannot reasonably be construed to allege a crime or that the defendant suffered prejudice.
Actual knowledge doctrine: Even if a charging paper is imperfect, due process notice can be satisfied if the record clearly shows the defendant actually knew the nature of the accusation (e.g., through prior trial proceedings and jury instructions).
HRS § 134-21 vs. HRS § 706-660.1: Section 134-21 creates a separate offense for carrying/using a firearm in the commission of a separate felony and includes mens rea (“knowingly,” “intentionally”). Section 706-660.1 is a sentencing enhancement that increases punishment for an already convicted felony if the defendant possessed, used, or threatened a firearm during that felony.

Conclusion

State v. Smith cements a clear rule in Hawaiʻi charging practice: an indictment need not plead a separate state of mind to support an HRS § 706-660.1 firearm sentencing enhancement. The enhancement is not an “element of an offense” under HRS § 702-205 and HRS § 702-204’s default mens rea pleading rule does not apply. Due process is satisfied by providing notice that the enhancement will be sought and by alleging sufficient facts to support it—followed by Apprendi/Alleyne-compliant jury findings beyond a reasonable doubt.

Doctrinally, the Court reconciles Auld and Alleyne with Wagner and Hawaiʻi’s Penal Code by clarifying the distinct meanings of “element.” Practically, the decision promotes charging clarity and finality (through Motta/Wells and actual-knowledge principles) while preserving the defendant’s jury-trial protection for enhancement facts. Open questions remain about what mental state, if any, is required to find the “possession” prong of § 706-660.1 at trial, but those are issues for instructions and proof, not indictment pleading.

In short: notice, not mens rea, governs the pleading of firearm enhancements in Hawaiʻi. Prosecutors must allege the enhancement and the supporting facts; juries must find those facts; but indictments need not include a separate state of mind for § 706-660.1. This decision will guide courts and litigants in structuring charges, jury instructions, and appellate preservation in cases involving sentencing enhancements across the Penal Code.