State v. Medeiros , 4 Haw. App. 248 ( 1983 )

CONCURRING AND DISSENTING OPINION OF

TANAKA, J.

I concur with Part I of the majority opinion. However, I cannot agree with the majority’s construction of Hawaii Revised Statutes (HRS) § 134-1 (1976 & Supp. 1982) and, therefore, respectfully dissent as to Part II.

Hawaii Revised 'Statutes § 706-660.1(b) (1976) requires a mandatory term of imprisonment upon conviction of a second firearm felony offense. HRS § 706-660.1 provides that “‘firearm’ has the meaning defined in section 134-1.” HRS § 134-1 defines “firearm” as “any weapon, the operating force of which is an explosive,” but includes no definition of the word “weapon.”

In construing the word “weapon” in HRS § 134-1, the majority holds that it means and includes both “an instrument that is designed for offensive or defensive use,” and “an instrument that is used as a weapon, though not designed as such or for such use.” The majority states that “[a] flare gun is not intended or designed to be a weapon,... nor is it commonly understood to be one.” The majority then concludes that since the “flare gun was in fact used as a weapon in this case,” it was “a weapon and a firearm within the meaning of HRS § 134-1.”

Initially, I agree with the majority that State v. Rackle, 55 Haw. 531, 523 P.2d 299 (1974), is not dispositive of this case. Rackle involved the construction of the words “deadly or dangerous weapon” in HRS § 134-51. Rackle held that a flare gun is not a “deadly or dangerous weapon” within the meaning of HRS § 134-51. The general term “weapon” in HRS § 134-1 was not involved and construed in Rackle.

Hawaii Revised Statutes chapter 134 generally deals with the regulation of firearms, ammunition and dangerous weapons. HRS § 134-1 is the definition section for the entire chapter. In fact, HRS § 134-1 expressly states, “As used in this chapter: ‘Firearm’ means any weapon, the operating force of which is an explosive.” (Emphasis added.) Consequently, what is construed to be a “firearm” in HRS § 134-1 will perforce be applicable to the ensuing sections dealing with the registration, permits and licenses required to bring into the State, acquire, possess, sell and manufacture “firearms.”

I am not convinced that HRS chapter 134 was enacted to regulate “an instrument that is used as a weapon, though not designed as such or for such use.” Whether an owner or possessor of an instrument which is not designed or intended to be used as a weapon intends to use such instrument as a weapon in the future should be irrelevant in a regulatory or licensing statute. I agree with the Supreme Judicial Court of Massachusetts that:

In a licensing scheme that depends on obtaining legal permits in advance, the definition of the object subject to licensing should be construed, as much as feasible, in a manner that does not require looking into the subjective intent of the potential licensee.

Commonwealth v. Sampson, 383 Mass. __, __, 422 N.E.2d 450, 453 (1981). I would construe the term “firearm” in HRS § 134-1 to mean a weapon which is only an instrument designed for offensive or defensive use, the operating force of which is an explosive.

Under the majority’s holding, the flare gun possessed by defendant Medeiros is a firearm under HRS § 134-1 because he used the flare gun as a weapon. The logical implication of the holding is that under HRS § 134-1, “firearm” includes any instrument which may be used as a weapon if its owner or possessor intends to so use it. Under such a holding, even firecrackers will be “weapons” when used offensively against another person and since they 1) are “weapons” that 2) operate “by means of an explosive force,” they are also “firearms” subject to regulation under HRS chapter 134. Yet, the majority states that the registration, permit and license provisions of HRS chapter 134 apply only to “firearms which are weapons per se and not to instruments such as flare guns which become weapons only by the manner in which they are used.” See footnote 11 of majority opinion. If that is the case, we have an anomalous situation of a definition under the general definition section (HRS § 134-1) not being applicable to the ensuing regulatory sections.

I would affirm the sentence imposed by the trial judge.