IGNORANCE OR MISTAKE OF FACT

IGNORANCE OR MISTAKE OF FACT In any prosecution for an offense, it is a defense that the Defendant engaged in the prohibited conduct under ignorance or mistake of fact if the ignorance or mistake negates the state of mind required to establish an element of the offense. [Thus, for example, a person is provided a defense to a charge based on an intentional or knowing state of mind, if the person is mistaken (either reasonably, negligently, or recklessly) as to a fact that negates the person’s state of mind required to establish an element of the offense; however, a reckless mistake would not afford a defense to a charge based on a reckless state of mind.] [Although ignorance or mistake would otherwise afford a defense to the offense charged, the defense is not available if the Defendant would be guilty of another offense had the situation been as the Defendant supposed. In such a case, the Defendant may be convicted of the offense of which the Defendant would be guilty had the situation been as the Defendant supposed.] The burden is upon the prosecution to prove beyond a reasonable doubt that the Defendant was not ignorant or mistaken as to a fact that negates the state of mind required to establish an element of the offense. If the prosecution fails to meet its burden, then you must find the Defendant not guilty. Commentary See HRS §§ 702-218 and 702-219; Commentary to HRS § 702- 218; State v. Cavness, 80 Hawai`i 460, 911 P.2d 95 (App. 1996); State v. Adams, 10 Haw.App. 593, 880 P.2d 226 (1994). The bracketed paragraphs of the instruction may be given as determined appropriate by the court. The second paragraph of the instruction would need to be modified when a defendant is charged with a reckless state of mind. The third paragraph of the instruction would apply, for example, where a defendant charged with burglary had grounds to believe the structure was a store, although it was actually a dwelling. Similarly, the third paragraph would be applicable where a defendant charged with theft had a basis to believe the value of the item was such that it would constitute a different grade of the offense charged. See also HAWJIC 10.00A(2). If there is any rational basis in the evidence to support the defense of mistake of fact, the court must give an instruction on that defense. State v. Cabrera, No. 21617 (Haw. Mar. 17, 1999). The ignorance or mistake of fact instruction is applicable where there is ignorance or a mistake as to a fact relevant to the state of mind required to establish an element of the offense. On the other hand, where there is ignorance or a mistake as to a fact relevant only to a defense, other principles may apply. See, e.g., bracketed language in HAWJIC force. In Adams, the defendant testified he believed the complainant "was receptive to engaging in sexual activity with [him] and that during the acts of penetration [she] never protested or resisted." 10 Haw.App. at 598, 880 P.2d at 231. The Adams court held that the defendant was entitled to an instruction on mistake of fact "on his mistaken belief . . . that he had [complainant’s] consent" and that "reasonable jurors" could so "construe" the facts. Id. at 607, 880 P.2d at 235. In Cavness, the Intermediate Court of Appeals held that the defendant was entitled to introduce evidence of the basis of his belief that he had a right to be present on the premises to establish that defendant did not act intentionally, knowingly or recklessly without license, invitation or privilege in a trespass prosecution. Not allowing the defendant to establish the basis of his belief, and failing to decide if defendant acted recklessly, required a remand for new trial. Cavness, 80 Hawai`i 460, 911 P.2d 95. In Cabrera, the defendant admitted at trial that he was aware that he was stealing the property of J.C. Penney, but maintained he had no knowledge, one way or the other, as to what the property's value was. That being the case, the Cabrera court held that under these circumstances, there was no element of the offense of second degree theft about which defendant could have been factually mistaken and, therefore, the defendant was not entitled to a jury instruction regarding mistake of fact. Cabrera, No. 21617 (Haw. Mar. 17, 1999).