§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).

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§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.