TO THE INTERMEDIATE COURT OF APPEALS (CAAP-13-0000056; CR.
RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON,
RECKTENWALD, C.J. 
Wagner, Jr., seeks review of his conviction and sentence for
one count of methamphetamine trafficking in the first degree,
and two counts of prohibited acts related to drug
paraphernalia. The Circuit Court of the Third
Circuit (circuit court) sentenced Wagner to twenty
years' imprisonment on the methamphetamine trafficking
charge, and imposed a mandatory minimum term of thirteen
years and four months because Wagner had a prior conviction
for methamphetamine trafficking. The Intermediate Court of
Appeals (ICA) affirmed the circuit court's Judgment of
Conviction and Sentence, and Wagner sought review in this
conclude that the circuit court incorrectly construed
Wagner's prior conviction as an element of the offense.
As a result, information about Wagner's prior conviction
was submitted to the jury in a stipulation, thus
unnecessarily subjecting Wagner to potential prejudice due to
the jurors learning of his prior felony conviction.
Accordingly, we vacate the ICA's January 26, 2016
judgment on appeal, and remand to the circuit court for a new
Circuit Court Proceedings
case arises from a police search of Wagner's residence on
December 23, 2010, executed pursuant to a search warrant.
During the search, the police found 45.3 grams of a
"crystalline substance" and drug paraphernalia.
That same day, Wagner was arrested for methamphetamine
trafficking and possession of drug paraphernalia.
December 27, 2010, Wagner was initially charged with four
counts relating to the events of December 23, 2010. The State
filed an Amended Complaint on December 28, 2011, and a Second
Amended Complaint on September 4, 2012, alleging three
counts. In Count I, Wagner was charged with
methamphetamine trafficking in the first degree in violation
of Hawai'i Revised Statutes (HRS) § 712-1240.7(1)
(a) (Supp. 2006), alleging that Wagner knowingly possessed
one ounce or more of methamphetamine "with one prior
conviction for Methamphetamine Trafficking." Counts II
and III both alleged that Wagner "used, or possessed
with intent to use, drug paraphernalia, zip packet(s) and/or
scale(s) and/or straw(s), to plant, propagate, cultivate,
grow, harvest, manufacture, compound, convert, produce,
process, prepare, test, analyze, pack, repack, store,
contain, conceal, inject, ingest, inhale, or otherwise
introduce into the human body a controlled substance" in
violation of HRS § 329-43.5 (Prohibited Acts Related to
trial, Wagner stipulated that he had a prior conviction for
methamphetamine trafficking. However, the parties further
agreed that the jury would not be advised that Wagner's
prior conviction was for a methamphetamine trafficking
offense, but rather only that it was a felony.
State's evidence at trial established that when the
police arrived at Wagner's residence to execute its
search warrant, Wagner and his fiancee, Deshalynn Pea, were
on the lanai at the front of the house, and Wagner's
mother and other family members were inside the residence.
The State's evidence also established that the police
found in Wagner's room prescription pill bottles with
Wagner's name on them, and Wagner's wallet, which
held his University of Hawai'i student identification
card, his Visa card, and his social security card. The police
also found Pea's wallet on the bed.
the State's evidence established that the "sixteen
packets of a white crystalline substance" recovered from
Wagner's room tested positive as approximately 45.38
grams, or about 1.6 ounces, of methamphetamine. The State
also established that a methamphetamine smoking pipe, several
zip packets, and a digital scale and straw, used to weigh and
package drugs, were recovered from Wagner's room.
Additionally, the State established that the residual
contents found within the drug paraphernalia were
methamphetamine. The State also established that in
Wagner's room, $10, 000 in a "drug roll" was
recovered from one of Wagner's shirt pockets, $967 was
found on Wagner's bed, a notebook with drug slang terms
written inside was recovered, and multiple cell phones with
phone numbers affixed to the exterior, commonly used to
facilitate drug dealings, were recovered.
prior to the State resting its case, the court read the
stipulated language relating to Wagner's prior conviction
to the jury:
A conviction for Count 1 in this matter requires the
prosecution to prove beyond a reasonable doubt the element
that defendant [Wagner] has had one prior conviction for a
felony prior to December 23rd, 2010. For purposes of Count 1
in this matter, the parties have stipulated that prior to
December 23rd, 2010, [Wagner] was convicted of one felony
The court then further instructed the jury:
You must not consider the prior conviction for any purpose
other than conclusive proof beyond a reasonable doubt that
[Wagner] was convicted of one felony offense. You must not
speculate as to the nature of the prior conviction. You must
not use any evidence of a prior conviction to conclude that
because [Wagner] has had a prior felony conviction, that he
is a person of bad character and therefore must have
committed the offenses in this case.
In considering the evidence for the limited purpose for which
it has been received, you must weigh it in the same manner as
you would all other evidence in this case and consider it
along with all other evidence in this case.
testified in his own defense. Wagner admitted that he had
previously used methamphetamine and was familiar with its
effects, referring to himself as an "ex-addict."
Wagner confirmed that methamphetamine was found in his room,
but denied that it was his and stated that he had never seen
it in his room before. Wagner further contended that the pipe
found in his room did not belong to him.
following limiting instruction was given to the jury at the
end of trial without objection:
You have heard evidence that the defendant at another time
may have engaged in or committed other crimes, wrongs, or
acts. This evidence may be considered only on the issue of
the defendant's knowledge of methamphetamine, its
packaging and paraphernalia, identity of the person who
committed prior felony offense charged, and whether the
alleged conduct resulted from a mistake or accident.
Do not consider this evidence for any other purpose. You must
not use this evidence to conclude that because the defendant
at another time may have engaged in or committed other
crimes, wrongs, or acts, that he is a person of bad
character, and therefore must have committed the offenses
charged in this case.
September 13, 2012, the jury found Wagner guilty of all three
charges. On September 18, 2012, the State filed a motion to
impose a mandatory minimum term of imprisonment, pursuant to
HRS § 712-1240.7(3) (a). The State argued that
Wagner's previous conviction for methamphetamine
trafficking "mandates the imposition of a mandatory
minimum term of imprisonment of between six years, eight
months and thirteen years, four months[.]"
November 16, 2012, the court held a sentencing hearing.
Before any substantive matters were addressed, Wagner orally
moved to dismiss his counsel. The court then gave Wagner a
copy of the State's motion to impose a mandatory minimum
sentence and the presentence report, and recessed to give
Wagner time to review the motion and "have a full
understanding" of the proceeding.
the recess,  the court confirmed that Wagner was ready
to proceed, and engaged in a colloquy with Wagner to
determine if Wagner understood that he: (1) was at a
disadvantage because he was not trained to represent himself;
(2) would be subject to a prison sentence of up to thirty
years with a mandatory minimum of up to thirteen years; (3)
had the constitutional right to be represented by an
attorney; and (4) had a right to court-appointed counsel.
Wagner responded that he had no questions in general or about
the possible sentence he faced.
stated that his decision to waive his right to an attorney
was voluntary, and the court found that he "voluntarily,
intelligently, and knowingly" waived his right to be
represented by an attorney. The court then discharged
Wagner's counsel. When asked if Wagner had any response
to the State's motion to impose a mandatory minimum
sentence, Wagner stated "[n]o
court granted the State's motion to impose a mandatory
minimum sentence. The court then sentenced Wagner to twenty
years' imprisonment for methamphetamine trafficking in
the first degree, with a mandatory minimum term of thirteen
years and four months; and five years for each count of
prohibited acts related to drug paraphernalia, with the
sentences running concurrently.
November 19, 2012, the court filed its Judgment of Conviction
and Sentence. On December 12, 2012, Wagner was appointed
counsel for purposes of appeal. On January 29, 2013, Wagner
filed his notice of appeal.
Wagner's appointed counsel filed an opening brief at the
ICA, his counsel filed a motion to withdraw as Wagner's
counsel. The ICA remanded the case to the circuit court, and
the circuit court granted the motion to withdraw, but
required Wagner's counsel "to remain as standby
counsel" to advise Wagner regarding the "practice
and procedure of the appellate courts."
then filed a handwritten pro se opening brief with
the ICA, arguing that the circuit court abused its discretion
in allowing the introduction of his prior conviction in front
of the jury at trial. Wagner argued that he was prejudiced by
the introduction of his conviction, and contended that his
stipulation should have "effectively remove[d] that
element of the crime from the charge." Wagner argued
that he faced unfair prejudice "[e]ven with the limited
[sic] instructions . . . [.]"
further argued that the circuit court erred by not giving
curative instructions prior to the introduction of
Wagner's prior bad acts. Wagner contended that the State
and his counsel's "repetitious statements"
regarding his criminal history "no doubt left an
indelible mark upon the jury's memory [that] no
instructions could cure."
State argued that the circuit court did not abuse its
discretion by allowing the introduction of Wagner's prior
conviction because Wagner stipulated to the conviction. The
State asserted that the stipulation "was merely a
stipulation that [Wagner] had a prior conviction so the State
need not call additional witnesses merely to prove [Wagner]
had a prior conviction. It was not a stipulation that the
prior conviction would never be mentioned at trial."
held that the circuit court did not abuse its discretion when
it "allowed reading to the jury the parties'
stipulation regarding Wagner's prior felony
conviction" because the circuit court properly
"followed the procedure mandated . . . where a defendant
[stipulates] to a prior conviction for the same offense where
such was an element of the current offense."
Judge Nakamura concurred with the result but wrote
separately, arguing that under HRS § 712-1240.7, a
defendant's prior methamphetamine trafficking convictions
should be construed as a "sentencing enhancement factor
for the judge to decide, " rather than an "element
of the offense for the jury [to decide]." In his
concurrence, Chief Judge Nakamura advanced three arguments in
support of his position to construe the prior convictions as
a sentencing factor.
Chief Judge Nakamura argued that the plain language of HRS
§ 712-1240.7 supported his position, since a
defendant's prior convictions are only referenced in the
sentencing provision of the statute. Second, Chief Judge
Nakamura argued that construing a defendant's prior
conviction under HRS § 712-1240.7 as a sentencing factor
would not contravene a defendant's right to a jury trial
because it would fall squarely within the exception
recognized in Apprendi v. New Jersey, 530 U.S. 466
(2000), that the fact of a prior conviction need not be
submitted to the jury. Third, Chief Judge Nakamura argued that
construing a defendant's prior conviction as a sentencing
factor would avoid the risk of unfair prejudice to the
defendant due to the jury's knowledge of his or her
previously convicted crime.
Chief Judge Nakamura concluded that based on controlling case
law, including State v. Domingues,  State v.
Kekuewa,  State v. Ruggiero,  and State v.
Murray,  the circuit court did not err in: (1)
treating Wagner's prior conviction as an element of the
offense; and (2) permitting the jury to be informed by
stipulation that Wagner had a prior felony conviction.
the ICA affirmed Wagner's conviction and sentence. On
January 26, 2016, the ICA entered its judgment on appeal.
Standards of Review
Admissibility Of Prior Bad Act Evidence
argues that he was unfairly prejudiced by the introduction of
his prior conviction, and suggests it should not have been
submitted to the jury even with a limiting instruction.
"Prior bad act" evidence under [Hawai'i Rules
of Evidence ([HRE])] Rule 404(b) is admissible when it is 1)
relevant and 2) more probative than prejudicial. A trial
court's determination that evidence is
"relevant" within the meaning of HRE Rule 401 is
reviewed under the right/wrong standard of review. However, a
trial court's balancing of the probative value of prior
bad act evidence against the prejudicial effect of such
evidence under HRE Rule 403 is reviewed for abuse of
discretion. An abuse of discretion occurs when the court