78 Hawai'i 86, State v. Bolosan

• Decision Date: 07 March 1995
• Docket Number: No. 15993,15993
• Citation: 890 P.2d 673
• Parties: 78 Hawai'i 86 STATE of Hawai'i, Respondent-Appellee, v. Aaron R. BOLOSAN, Petitioner-Appellant.
• Court: Hawaii Supreme Court

Page 673

890 P.2d 673

78 Hawai'i 86

STATE of Hawai'i, Respondent-Appellee, v. Aaron R. BOLOSAN, Petitioner-Appellant.

No. 15993.

Supreme Court of Hawai'i.

March 7, 1995.

Deborah L. Kim, Deputy Public Defender, on the briefs, Honolulu, for petitioner-appellant.

Lisa M. Itomura, Deputy Pros. Atty., on the briefs, Honolulu, for respondent-appellee.

Before MOON, C.J., KLEIN, NAKAYAMA, and RAMIL, JJ., and SHIMABUKURO, Circuit Court Judge, in place of LEVINSON, J., recused.

KLEIN, Justice.

Petitioner-Appellant Aaron R. Bolosan was convicted of two drug-related offenses, promoting a dangerous drug in the third degree in violation of Hawai'i Revised Statutes (HRS) § 712-1243 (1985), and unlawful use of drug paraphernalia in violation of HRS § 329-43.5(a) (Supp.1992), and two traffic offenses, driving without a license in violation of HRS § 286-102 (Supp.1992), and driving without no-fault insurance in violation of HRS § 431:10C-104 (Spec.Pamphlet 1987 & Supp.1992). The Intermediate Court of Appeals (ICA) in a published opinion reversed Bolosan's convictions of the drug-related offenses, affirmed his driving without a license conviction, and vacated and remanded for a new trial on the driving without no-fault insurance charge. State v. Bolosan, 78 Hawai'i 98, 890 P.2d 685 (Haw.App.1994), cert. granted, 76 Hawai'i 453, 879 P.2d 558 (1994).

We granted Bolosan's timely application for writ of certiorari to review the ICA's decision, and now affirm in part, reverse in part, and remand for further proceedings.

I. BACKGROUND

This case arose out of an incident that occurred on March 3, 1989 in Honolulu. At about 11:20 p.m. that night, Honolulu Police Officer Gerry Asato noticed the car that Bolosan was driving stopped at a red light at an intersection 75 to 100 feet away. He heard the engine revving loudly and saw a plume of heavy exhaust. When the light turned green, Bolosan drove through the intersection toward Officer Asato's position. Bolosan did not screech the tires and did not travel at a high speed. Officer Asato did not notice any other cars near Bolosan's car and, when he testified at the motion to suppress, he could not remember if there had been other people on the street or sidewalk, or in the neighborhood.

Based on these observations, Officer Asato believed that Bolosan may have committed the offense of Exhibition of Speed in violation of HRS § 291C-103 (1985). ¹ He therefore stopped Bolosan's vehicle. During the course of the stop, Officer Asato discovered that Bolosan did not have a driver's license or a no-fault insurance card, and was carrying a bong (a glass pipe used to smoke drugs) and an envelope containing crystal methamphetamine. ²

Bolosan was then arrested and subsequently indicted for promoting a dangerous drug in the third degree, unlawful use of drug paraphernalia, driving without a license, and driving without no-fault insurance. At trial, in addition to the evidence obtained at the time of the stop, it was stipulated that the vehicle Bolosan was driving belonged to a friend of his and that neither Bolosan nor the car's owner had a no-fault policy covering Bolosan's operation of the car. Furthermore, according to Bolosan's uncontroverted testimony, Bolosan had not asked his friend whether the car was insured but had assumed that it was insured because he had seen his friend driving the car for several months prior to the date of arrest. Bolosan was subsequently convicted of all charges and sentenced accordingly.

On appeal, the ICA concluded that Officer Asato did not have reasonable grounds to believe that Bolosan may have violated HRS § 291C-103. Nonetheless, the ICA held that the stop was justified because "the specific and articulable facts in this case, viewed objectively, would warrant a person of reasonable caution to believe that [Bolosan] had violated 1990 Revised Ordinances of Honolulu (ROH) § 15-19.28 ³ [ (the muffler ordinance) ]...." Bolosan, 78 Hawai'i at 103, 890 P.2d at 690. The ICA went on, however, to reverse the convictions of the drug-related offenses on the ground that the evidence in support of those convictions should have been suppressed because it was obtained only after Officer Asato unconstitutionally ordered Bolosan to exit the car and conducted a pat-down search of his person. Id. at 105, 890 P.2d at 692. Finally, although rejecting Bolosan's argument that the trial court misapplied the "lack of knowledge defense" to the driving without no-fault insurance charge, the ICA vacated the conviction thereof and remanded for a new trial because the trial court had applied the wrong state of mind requirement for that offense. Id. at 107, 890 P.2d at 694.

II. DISCUSSION

A. Scope of Review

Appeals from decisions of the ICA are governed by HRS § 602-59 (1985), which provides in part:

(a) After issuance of a decision by the [ICA], a party may appeal such decision only by application to the supreme court for a writ of certiorari, the acceptance or rejection of which shall be discretionary upon the supreme court.

(b) The application for writ of certiorari shall tersely state its grounds which must include (1) grave errors of law or of fact, or (2) obvious inconsistencies in the decision of the [ICA] with that of the supreme court, federal decisions, or its own decision, and the magnitude of such errors dictating the need for further appeal.

In the instant case, the only grounds stated in Bolosan's application for a writ of certiorari concerned the ICA's conclusion that the initial stop was justified. Bolosan did not contest the ICA's rejection of his argument that the trial court misapplied the "lack of knowledge defense" to the driving without no-fault insurance charge. In addition, the State failed to file a timely application for a writ of certiorari ⁴ challenging any of the ICA's rulings adverse to it, such as the holding that the exit order and pat-down search violated article I, section 7 of the Hawai'i Constitution.

Despite the limited number of issues raised in Bolosan's application for a writ of certiorari, the legislative history of HRS § 602-59 makes clear that we have the authority to consider any issues that arise in this case. ⁵ On the other hand, when a party fails to properly challenge a ruling of the ICA, we ordinarily will not address that ruling absent plain error. See State v. Elliott, 77 Hawai'i 309, 310 n. 1, 884 P.2d 372, 373 n. 1 (1994) ("Because the State did not apply for a writ of certiorari to review the ICA's decision regarding the disorderly conduct conviction, and because we perceive no plain error in that aspect of the ICA's decision, we will not address the disorderly conduct conviction.").

Consequently, although Bolosan has not challenged the ICA's determination that the requirements to maintain a "lack of knowledge defense" to a driving without no-fault insurance charge set forth in State v. Palpallatoc, 71 Haw. 178, 182, 787 P.2d 214, 216 (1990), apply to charges arising before the effective date of the 1990 amendments to HRS § 431:10C-117, because we believe that determination was plainly incorrect, we will address that issue in this opinion. ⁶

B. Lack of Knowledge Defense to Driving Without No-Fault Insurance Charge

In 1988, the legislature established a "good faith defense, including but not limited to lack of knowledge" to a driving without no-fault insurance charge. See Act 345, § 1, 1988 Haw.Sess.Laws 659 (amending HRS § 431:10C-117 (Spec.Pamphlet 1987)). This "lack of knowledge" defense was available to Bolosan at the time he was cited for violating HRS § 431:10C-104.

The lack of knowledge defense is not an affirmative defense. See HRS § 701-115(3) (1985). ⁷ Therefore, when evidence of facts comprising the defense are presented in a case, "the defendant is entitled to an acquittal if the trier of fact finds that the evidence, when considered in the light of any contrary prosecution evidence, raises a reasonable doubt as to the defendant's guilt." HRS § 701-115(2)(a). In other words, if evidence raises the lack of knowledge defense, the State has the burden of disproving that defense beyond a reasonable doubt. See State v. Gabrillo, 10 Haw.App. 448, 456, 877 P.2d 891, 895 (1994); see also HRS §§ 701-114(1)(a) (1985), 702-205(b) (1985). The State is only required to disprove a defense, however, if evidence to support the defense is present. HRS § 701-115(2) ("No defense may be considered by the trier of fact unless evidence of the specified fact or facts has been presented.").

In the instant case, Bolosan argues that the evidence that he was driving a friend's car and did not know it was uninsured was sufficient to raise the lack of knowledge defense. Whether this evidence was sufficient depends on our interpretation of the lack of knowledge defense set out in the 1988 amendment to HRS § 431:10C-117. In considering this issue, we are mindful that "[o]ur primary duty in interpreting and applying statutes is to ascertain and give effect to the legislature's intention to the fullest degree." State v. Feldhacker, 76 Hawai'i 354, 357, 878 P.2d 169, 172 (1994) (citation and quotation marks omitted).

The interpretation of the lack of knowledge defense was before this court once before. See State v. Palpallatoc, 71 Haw. 178, 787 P.2d 214 (1990). In that case, we noted that "[t]he plain language of the statute ... does not make clear what constitutes the good faith defense of lack of knowledge," and "[t]he statute's legislative history provides no guidance." Id. at 181, 787 P.2d at 215. We therefore attempted to discern the legislative intent based on the general purposes of the no-fault law. Id. at 181, 787 P.2d at 216 (citing HRS § 431:10C-102). Ultimately, we held that "in order to satisfy the good faith defense of lack of knowledge, the borrower of a vehicle must at least inquire of the owner whether or not the vehicle is insured." Id. at 182, 787 P.2d at 216.

In the meantime, on February 16, 1990, the same day...