Opinion of the Court by ACOBA, J.

We hold that the conviction of Defendant-Appellant Joel Keith Kupihea (Defendant), under Hawaii Revised Statutes (HRS) § 712-1242(1)(b)(i) (1993), of promoting a dangerous drug in the second degree (Count I) must be affirmed, but his conviction of violating HRS § 329-43.5(a) (1993), "prohibited acts relating to drug paraphernalia" (Count II), must be vacated and remanded for a new trial. With respect to Count I, we discern no error in a jury instruction describing methamphetamine as a dangerous drug and a controlled substance because the instruction merely reiterated relevant statutory terms of the offenses with which Defendant was charged. Also, no plain error was committed by the second circuit court (the court) with respect to the requisite state of mind portion of the elements instruction relating to Count I, inasmuch as it was evident from another instruction that Plaintiff-Appellee State of Hawaii (the prosecution) was required to prove Defendant's knowing state of mind with respect to all elements of that offense.

With respect to Count II, we conclude that, to prove the crime of the "use" of drug paraphernalia, the prosecution must establish that a defendant acted intentionally, and thus the court's instruction to the jury reflecting such law was correct. However we hold that, on remand, with respect to Count II, the court should separately instruct the jury as to the definition of drug paraphernalia according to HRS § 329-1 (1993). Lastly, we hold that the court was not required suasponte to dismiss Count II as deminimis pursuant to HRS § 702-236 (1993).

I.

On August 3, 1999, Defendant was found guilty of promoting a dangerous drug in the second degree, Count I, and prohibited acts relating to drug paraphernalia, Count II, as indicated supra. Judgment of conviction and sentence was filed on October 13, 1999. Defendant raises four points on appeal.

II.

Defendant argues that the court committed plain error in giving Instruction No. 15, which read as follows: "Methamphetamine is a dangerous drug and controlled substance under the laws of the State of Hawaii." He maintains that "[t]he jury was not required to find that methamphetamine was a `dangerous' drug[,]" (emphasis in original), and thus, the instruction "constituted impermissible commentary on the evidence by the court[,]" citing State v. Nomura, 79 Haw. 413, 903 P.2d 718 (App.), cert. denied, 80 Haw. 187, 907 P.2d 773 (1995). Seeid. at 417, 903 P.2d at 722 (stating that "[Hawaii Rules of Evidence (HRE) Rule 1102 (1993)] requires the court to instruct the jury on the law but precludes the court from commenting upon the evidence") (citation omitted)). He asserts that the "dangerous drug" reference "was highly prejudicial to [Defendant]" and "caused the jury to be prejudiced against him." The prosecution points out that the term "dangerous drug" was also employed in Instruction No. 17.

We discern no error in the use of the term "dangerous drug," because it merely refers to the name of the offense for which Defendant was charged in Count I and reiterates that the basis of the charge was possession of methamphetamine, a specific drug encompassed within the generic statutory category of "dangerous drug" to which HRS 712-1242(1)(b)(i) applies. In light of this, we do not believe the reference to "dangerous drug" had any collateral prejudicial effect on the jury's consideration of the charge in Count II.

In Instruction No. 15, the court informed the jury that methamphetamine was also a controlled substance under state law. The reference in Instruction No. 15 to a "controlled substance" relates to the Count II charge and simply restates the statutory language of HRS § 329-43.5(a), which makes use or possession with intent to use a thing in the prescribed relation to a controlled substance, a crime. In any event, the court had the duty to inform the jury that methamphetamine was a "dangerous drug" as a matter of law for purposes of the offense defined in HRS § 712-1242(1)(b)(i) and was also a "controlled substance" as a matter of law for purposes of the offense defined in HRS § 329-43.5.

III.

Secondly, Defendant complains that the court committed plain error in failing to instruct the jury in Count I and Count II that he "must have knowingly possessed the drug and [the] paraphernalia."

As to Count I, the court instructed the jury in Instruction No. 13 as follows:

In Count One of the Indictment, the Defendant, JOEL KEITH KUPIHEA, is charged with the offense of Promoting a Dangerous Drug in the Second Degree.

A person commits the offense of Promoting a Dangerous Drug in the Second Degree if he [or she] knowingly possesses one or more preparations, compounds, mixtures, or substances of an aggregate weight of one-eighth ounce or more, containing methamphetamine or any of its respective salts, isomers, and salts of isomers.

There are three material elements of the offense of Promoting a Dangerous Drug in the Second Degree, each of which the prosecution must prove beyond a reasonable doubt. These three elements are:

1. That, on or about November 22, 1998, in the County of Maui, State of Hawaii the Defendant possessed one or more preparations, compounds, mixtures, or substances of an aggregate weight of one-eighth ounce or more; and

2. That the one or more preparations, compounds, mixtures, or substances contained methamphetamine or any of its respective salts, isomers, and salts of isomers; and

3. That the Defendant did so knowingly.

(Emphasis added.)

Defendant maintains that Instruction No. 13 was faulty because, as written, it "placed the mens rea element [i.e., the requisite "knowing" state of mind] at the end of the instruction without specifying whether it referred to both elements or only the latter element." The prosecution urges that Instruction No. 26 "specifically instructed the jury that the . . . mental state of `knowingly' . . . applied to each element of the offense of Promoting a Dangerous Drug in the Second Degree[.]" Instruction No. 26 advised that "[a] person is not guilty of an offense unless he [or she] acted intentionally or knowingly as the law specifieswith respect to each element of the offense." (Emphasis added.)

In reviewing "a trial court's issuance or refusal of a jury instruction[,] . . . [we must determine] whether, when read and considered as a whole, the instructions given are prejudicially insufficient, erroneous, inconsistent, or misleading." State v. Balanza, 93 Haw. 279, 283, 1 P.3d 281, 285 (2000) (internal quotation marks, brackets, and citations omitted). While in part duplicative of the third element of Instruction No. 13, we believe Instruction No. 26, taken together with Instruction No. 13, made clear that the prosecution was required to prove Defendant's knowing state of mind with respect to the elements of the drug promotion offense described in Count I.

IV.

As to Count II, the court instructed the jury in Instruction No. 14 as follows:

In Count Two of the Indictment, the Defendant JOEL KEITH KUPIHEA, is charged with the offense of Prohibited Acts Related to Drug Paraphernalia.

A person commits the offense of Prohibited Acts Related to Drug Paraphernalia if he [or she] uses an object with the intent, or possesses an object with the intent to use it, to pack, repack, store, contain, ingest, inhale, or otherwise introduce a controlled substance into the human body.

There are two material elements of the offense of Prohibited Acts Related to Drug Paraphernalia, each of which the prosecution must prove beyond a reasonable doubt.

These two elements are:

1. That on or about November 22, 1998, in the County of Maui, State of Hawaii the Defendant used an object with the intent, or possessed an object with the intent to use it, to pack, repack, store, contain, ingest, inhale, or otherwise introduce into the human body a controlled substance, to wit, methamphetamine; and

2. That the object was drug paraphernalia, to wit, a green plastic container and/or a clear plastic ziploc bag.

(Emphases added.)

Defendant asserts that, pursuant to State v. Jenkins, 93 Haw. 87, 997 P.2d 13 (2000), where possession is the act prohibited and the statute does not specify a culpable state of mind, the jury must be instructed, with respect to the paraphernalia offense, that the defendant "(1) . . . intentionally or knowingly possessed the object; and (2) that he [or she] did so with a[n] intentional, knowing, or reckless state of mind as to the character of the object being drug paraphernalia." On the other hand, the prosecution contends that: (1) Jenkins only applies to HRS §§ 134-7(1) and -6(e) offenses, the firearm possession crimes involved in Jenkins; and (2) the jury was not erroneously instructed as to a "reckless" state of mind as it was in Jenkins.

Referring to the requirement in HRS § 702-202 (1993) that the defendant "knowingly procured or received the thing possessed," this court, in Jenkins, pointed out that the commentary on HRS § 702-202 indicated the words "`thing possessed' [in HRS § 702-202] 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." 93 Hawaii at 111, 997 P.2d at 37.

Consequently, it was concluded that HRS § 702-202 "establishes [a knowing state of mind as] the scienter requisite only for the possession of a thing itself." Id. Noting that HRS § 702-208 (1993) stated that a knowing state of mind is also established if a person acted intentionally, this court determined that the culpable states of mind attendant to the act of possessing "the thing possessed" were either an intentional or knowing state of mind, but not a reckless one. Id. at 110, 997 P.2d at 36. Thus, Jenkins established that the prosecution must prove, in an offense charging illegal possession, that the defendant had either an intentional or knowing state of mind, with respect to the identity of the physical object per se. Seeid.

However, this court also pointed out that inasmuch as the commentary on HRS § 702-202 said that "knowledge of particular qualities or properties of the physical object possessed is dealt with as a mens rea problem in subsequent sections," the statute charging the specific offense involved must be consulted to determine the defendant's requisite state of mind with respect to the attendant circumstance of "qualities or properties of the physical object possessed." Jenkins, 93 Hawaii at 111, 997 P.2d at 37. But where, as in Jenkins, the defendant was charged with a possession offense under a statute which lacked any specific state of mind element, see id. at 94-95, 997 P.2d at 20-21, the purported act of possession must be subjected to a two-part analysis.

This court then held that, in the absence of a prescribed culpable state of mind element, "possession," for the purposes of HRS § 134-7(b), must be analyzed under a two-prong test: (1) the prosecution must prove the "voluntary act" of "possession" of an object, as provided under HRS § 702-202, by "adduc[ing] evidence that the defendant knowingly procured or received an object, or was aware of his or her control of that object for a sufficient period to have terminated possession"; Jenkins, 93 Hawaii at 111, 997 P.2d at 37 (citing HRS § 702-202) and (2) the prosecution must prove "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[,]" under HRS § 702-204. Id. As to the second prong, it was concluded that HRS § 702-204 (1993) directs that knowledge of the objective qualities or properties must be established by proving a person acted intentionally, knowingly, or recklessly.

V.

We do not believe Jenkins is applicable in this case, but for reasons other than those espoused by the prosecution. "Use," in the context of HRS § 329-43.5, is a conduct element.See HRS § 702-205. We observe that, in connection with this ground of criminal liability, the statute fails to expressly prescribe a culpable state of mind for use of drug paraphernalia. Ordinarily, where a statute does not assign a particular state of mind to the elements of a criminal offense, then the state of mind applied is intent, knowledge, or recklessness. See HRS § 702-204 ("When[, as here,] the state of mind required to establish an element of an offense is not specified by the law, that element is established if, with respect thereto, a person acts intentionally, knowingly, or recklessly."); see also Jenkins, 93 Hawaii at 111, 997 P.2d at 37.

However in State v. Lee, 75 Haw. 80, 856 P.2d 1246 (1993), this court determined that, in the context of the crime of delivering drug paraphernalia, "[c]learly, the defendant's intention is the only thing that necessarily makes an object which is capable of being used with a controlled substance prohibited drug paraphernalia." Id. at 107, 856 P.2d at 1261. Lee is analogous to the instant case because the Lee decision was premised on the chapter 329 definition of "drug paraphernalia," which also applies to the crime of use of drug paraphernalia.

"Laws in pari materia, or upon the same subject matter, shall be construed with reference to each other. What is clear in one statute may be called upon in aid to explain what is doubtful in another." HRS § 1-16 (1993); see also State v. Tauiliili, 96 Haw. 195, 198, 29 P.3d 914, 917 (2001). In construing HRS § 329-1, which defines "drug paraphernalia," this court said, "according to the § 329-1 definition, only the defendant's intent can transform an object into prohibited `drug paraphernalia.'" Lee, 75 Haw. at 116, 856 P.2d at 1265.

Because HRS § 329-43.5(a) incorporates the term "drug paraphernalia" as defined in HRS § 329-1, and this court has held that an intentional state of mind is required to render an object "drug paraphernalia," an intentional state of mind is in effect prescribed in HRS § 329-43.5(a) with respect to the use of drug paraphernalia. In this case, the court did so instruct the jury. Considering the foregoing analysis, it was not error for the court to do so.

With respect to "possession with intent to use," the second ground for criminal liability under HRS § 329-43.5, an intentional state of mind applies. Although "possession" is the crux of the prohibited conduct, hereJenkins is inapplicable.

Jenkins held that where a defendant was charged with a possession offense under a statute which lacked any specific state of mind element,see 93 Hawaii at 94-95, 997 P.2d at 20-21, the purported act of possession must be subjected to a two-part analysis — (1) the prosecution must prove the "voluntary act" of "possession" of an object, as provided under HRS § 702-202, by "adduc[ing] evidence that the defendant knowingly procured or received an object, or was aware of his or her control of that object for a sufficient period to have terminated possession" and (2) the prosecution must prove "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[,]" under HRS § 702-204. Id. at 111-12, 997 P.2d at 37-38.

However, by qualifying "possession" of paraphernalia as conduct in which a person engages with the "intent to use" such objects, the statute rests liability on action that is intentional in nature and thereby specifies the state of mind element. As HRS § 702-204 provides, a person is guilty of an offense if "the person acted intentionally, knowingly, recklessly, or negligently, as the law specifies, with respect to each element of the offense." (Emphasis added.) Whereas this second branch of the offense described in HRS § 329-43.5 specifies the culpable state of mind that must be proven, Jenkins is inapposite. Hence, the requisite state of mind that must be applied to each element,see HRS § 702-204, of this version of the paraphernalia offense, is an intentional one.

In the elements instruction, the court informed the jury that the prosecution was required to prove the Defendant "possessed an object with the intent to use it." That instruction correctly conveyed to the jurors that the culpable state of mind required for conviction was an intentional one.

VI.

Defendant also asserts that, in instructing the jury as to the second element in Instruction No. 14, i.e., "[t]hat the object was drug paraphernalia, towit, a green plastic container and/or a clear plastic ziploc bag[,]" the court "essentially instruct[ed] the jury that if [it] found [Defendant] possessed the items, that the items were paraphernalia," resulting in "a commentary on this evidence by the court." (Emphasis added.) Under the circumstances of this case, we do not believe it was plain error to have used the words "to wit," inasmuch as Defendant was charged in that language. The indictment charged that Defendant "did use, or possess with intent to use, drug paraphernalia, to wit, a green plastic container and/or a clear plastic ziplock bag[.]" (Emphasis added.) Further, the instruction regarding the elements of the offense of Prohibited Acts Related to Drug Paraphernalia stated that one of the elements of the crime was "[t]hat the object [Defendant used or possessed with the intent to use as drug paraphernalia] was drug paraphernalia, to wit, a green plastic container and/or a clear plastic ziplock bag." (Emphasis added.) The instruction thus identified what had been specified in the indictment as the specific objects alleged by the prosecution to be drug paraphernalia.

VII.

We consider Defendant's contention that the trial court committed error in failing to define the term "drug paraphernalia" with respect to Count II. While the prosecution concedes this point, it maintains that the court's failure to do so was harmless because the essence of the drug paraphernalia definition was set forth in paragraph two of Instruction No. 14. We do not agree.

First, Instruction No. 14 does not outline the definition of drug paraphernalia in a manner that would be easily understood by the jury. "`[I]t is the duty of the circuit judge to see to it that the case goes to the jury in a clear and intelligent manner[.]'" State v. Culkin, 97 Haw. 206, 214, 35 P.3d 233, 214 (2001) (quoting State v. Kinnane, 79 Haw. 46, 50, 897 P.2d 973, 977 (1995)). Instruction No. 14 reads, in part:

A person commits the offense of Prohibited Acts Related to Drug Paraphernalia if he [or she] uses an object with the intent, or possesses an object with the intent to use it, to pack, repack, store, contain, ingest inhale, or otherwise introduce a controlled substance into the human body.

There are two material elements of the offense of Prohibited Acts Related to Drug Paraphernalia, each of which the prosecution must prove beyond a reasonable doubt.

These two elements are:

1. That on or about November 22, 1998, in the County of Maui, State of Hawaii, . . . Defendant used an object with the intent, or possessed an object with the intent to use it, to pack, repack, store, contain, ingest, inhale, or otherwise introduce into the human body a controlled substance, to wit, methamphetamine; and

2. That the object was drug paraphernalia, to wit, a green plastic container and/or a clear plastic ziplock bag.

(Emphasis added.) From this instruction, the jury would not be able to deduce what drug paraphernalia is. Because "`it is a grave error to submit a criminal case to a jury without accurately defining the offense charged and its elements[,]'" State v. Jones, 96 Haw. 161, 168, 29 P.3d 351, 358 (2001) (brackets omitted) (quoting Jenkins, 93 Hawaii at 108, 997 P.2d at 34), we conclude that it was not harmless error for the court to have failed to define "drug paraphernalia" in the instant case. "`[A]n essential or material element of a crime is one whose specification with precise accuracy is necessary to establish the very illegality of the behavior[.]'" State v. Vanstory, 91 Haw. 33, 44, 979 P.2d 1059, 1070 (1999) (quoting United States v. Johnson, 152 F.3d 618, 630 (7th Cir. 1998)) (brackets omitted). Whether or not the green plastic container or clear plastic ziplock bag constituted "drug paraphernalia" is, thus, a material element of the crime at issue and the phrase "drug paraphernalia" needed to be defined. See Jenkins, 93 Hawaii at 108, 997 P.2d 34 ("A defendant may not be convicted except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." (Internal quotation marks and citation omitted.)).Cf.State v. Alvarez, 96 Haw. 42, 50, 25 P.3d 817, 825 (App. 2001) (characterizing "[t]he trial court's failure to instruct the jury that the State was required to prove beyond a reasonable doubt" a material element of a crime charged as "prejudicially erroneous"). Accordingly, we instruct that, on remand, the court separately instruct the jury as to the definition of drug paraphernalia. While the court must do so, we do not believe the court is required to refer to all twelve categories of drug paraphernalia items or the fourteen factors enumerated in HRS § 329-1.

The broad definition of drug paraphernalia in the first paragraph of HRS § 329-1 is all inclusive, referring to "all equipment, products and materials of any kind[.]" (Emphases added.) Hence the twelve categories of items following the first paragraph are merely illustrative of what is "include[d in] but [are] not limit[s]," id., on the general definition of paraphernalia already provided.

Likewise, the fourteen factors listed in HRS § 329-1 "in determining whether an object is drug paraphernalia" are not exclusive, but only "should [be] consider[ed] in addition to all other logically relevant factors[.]" Id. It is probable that not all items or factors would be pertinent in any given case. Therefore, a trial court is not mandated to recite all twelve categories or all fourteen factors in its instructions. It should refer only to those items or factors having a rational basis in the evidence adduced at trial and not otherwise excludable.Cf.Kinnane, 79 Hawaii at 49, 897 P.2d at 976 (stating that the "trial court is not obligated to charge the jury with respect to an included offense unless there is a rational basis in the evidence for a verdict acquitting the defendant of the offense charged and convicting him [or her] of the included offense." (Internal quotation marks and citation omitted.));State v. Sneed, 68 Haw. 463, 465, 718 P.2d 280, 282 (1986) (holding that, in the absence of such a rational basis in the evidence, the trial court should not instruct the jury as to included offenses); but see Lee, 75 Hawaii at 115, 856 P.2d at 1264 ("In a prosecution under HRS § 329-43.5(b), the trial court should, as a matter of course, provide the jury with an instruction enumerating all fourteen factors listed in the statutory definition of drug paraphernalia."). Requiring a trial court to do otherwise may introduce irrelevant matters into the instructions and invite confusion and error.

VIII.

Finally, Defendant claims that "the . . . court plainly erred in failing to dismiss the paraphernalia charge as deminimis pursuant to HRS § 702-236 where the items were everyday household items not intended or designed for use as drug paraphernalia[.]" He quotes the comments of a legislator favoring passage of HRS § 329-43.5 that referred to "the prevalence of so-called `head shops' . . . [selling] . . . [pipes] made for marijuana, for cocaine, for heroin, and all the assorted paraphernalia that accompany that." Comments of Representative Hayes, reprinted in 1988 House Journal, at 156-57. In that connection, he urges that "the ziploc bag and the plastic candy container did not actually threaten the harm or evil sought to be prevented by the law defining the offense, [that is], preventing the sale of items specifically designed or intended for use as drug paraphernalia," and that "this case presents extenuations which cannot reasonably be regarded as envisaged by the legislature in forbidding the offense[.]"

However, we conclude that the broad definition of drug paraphernalia and the multiple examples of such contraband enumerated in HRS § 329-1 weigh against Defendant's contention that the ordinary nature of the containers possessed by Defendant did not involve the harm or evil sought to be avoided under HRS § 329-43.5 or amounted to extenuations that would not have been envisioned by the legislature. "`[W]e do not resort to legislative history to cloud a statutory text that is clear.'" State v. Kalama, 94 Haw. 60, 64, 8 P.3d 1224, 1228 (2000) (quoting Ratzlaf v. United States, 510 U.S. 135, 147-48 (1994) (citations omitted)). "`[O]ur duty in interpreting statutes is to give effect to the legislature's intent[,] which is obtained primarily from the language of the statute.'"Id. at 64, 8 P.3d at 1228 (quoting Allstate Ins. Co. v. Hirose, 77 Haw. 362, 364, 884 P.2d 1138, 1140 (1994)).

In that regard, HRS § 329-43.5 states in relevant part, as we have indicated, that "[i]t is unlawful for any person to use, or to possess with intent to use, drug paraphernalia to . . . pack, . . . store, contain, [or] conceal . . . a controlled substance" such as methamphetamine. Furthermore, as we have observed, HRS § 329-1 defines drug paraphernalia as including "all . . . materials of any kind which are used . . . in . . . storing . . . a controlled substance . . . not limited to . . . envelopes and other containers used . . . in packaging small quantities of controlled substances." (Emphases added.) It is evident that, in enacting HRS § 329-1, the legislature cast a wide net, ensnaring not only containers that might ordinarily be thought of as used for "packaging small quantities of drugs," but anything used or possessed with the intent to use it for the prescribed purposes. Thus, contrary to Defendant's position, as stated supra, it is not the intrinsic nature of the thing that is determinative, but the culpable state of mind with which the thing is used, or possessed with intent to use, that "convert[s] the [thing] into prohibited drug paraphernalia."Lee, 75 Hawaii at 109, 856 P.2d at 1262.

Under the broad definition employed by the legislature, Defendant's possession involved the harm or evil sought to be prevented by HRS § 329-43.5. Therefore, we cannot determine, on this record, any plain error, as contended by Defendant, in the court's failure suasponte to dismiss Count II. Further, in light of the inclusive definition of drug paraphernalia employed and the extensive list of examples in HRS § 329-1, it cannot be said that the "ordinary" nature of the containers used by Defendant amounted to "extenuations" that would not have reasonably been envisioned by the legislature.

IX.

In conclusion, we affirm the October 13, 1999 judgment of conviction and sentence as to Count I and vacate it as to Count II. Count II is remanded for a new trial consistent with this opinion.