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Electronically Filed
Supreme Court
SCWC-XX-XXXXXXX
27-MAY-2020
12:27 PM
IN THE SUPREME COURT OF THE STATE OF HAWAI#I
---o0o---
STATE OF HAWAI#I,
Respondent/Plaintiff-Appellant,
vs.
FRANK ENOS,
Petitioner/Defendant-Appellee.
SCWC-XX-XXXXXXX
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-XX-XXXXXXX; CR. NO. 1CPC-XX-XXXXXXX)
MAY 27, 2020
RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.
AMENDED OPINION OF THE COURT BY RECKTENWALD, C.J.1
A police officer discovered Frank Enos sleeping below a
freeway and arrested him for Criminal Trespass onto State Lands.
Hawai#i Revised Statutes (HRS) § 708-814.7 (Supp. 2017). Nearby,
1
The opinion is amended to reflect the correct designation in the
caption of Appellant and Appellee.
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the officer found a pipe and plastic bag, from which the police
later recovered an aggregate .005 grams of substances containing
methamphetamine. Enos was subsequently charged with Promotion of
a Dangerous Drug in the Third Degree, a class C felony. HRS
§ 712-1243 (2014).
Enos moved to dismiss the charge as de minimis pursuant
to HRS § 702-236 (2014), which allows a court to dismiss a
criminal charge when the defendant’s conduct “[d]id not actually
cause or threaten the harm or evil sought to be prevented by the
law defining the offense or did so only to an extent too trivial
to warrant the condemnation of conviction[.]” The State opposed
the motion, arguing that .005 grams of methamphetamine was
sufficient to produce a physiological effect and therefore not de
minimis. In addition, the State asserted that Criminal Trespass
onto State Lands is a property crime, and this court has long
described the purpose of Promoting a Dangerous Drug in the Third
Degree as, among other things, preventing property crimes.
The circuit court granted the motion, concluding that
Enos’s conduct did not “warrant the condemnation of conviction.”
While the circuit court credited expert testimony that .005 grams
of methamphetamine could affect the body, and it therefore
concluded the amount possessed was not de minimis, the other
attendant circumstances weighed in favor of dismissal. In
addition, as a matter of statutory interpretation, the circuit
court determined that Criminal Trespass onto State Lands was not
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a property crime and accordingly did not constitute a “harm” or
“evil” with which the drug statute was concerned.
On appeal, the Intermediate Court of Appeals (ICA)
disagreed with the circuit court that Criminal Trespass was not a
property crime, but agreed that “it was not a property crime
consistent with the legislative intent of criminalizing the
possession of any amount of illicit drugs.” Nonetheless, the ICA
remanded to the circuit court based on two clearly erroneous
findings of fact that it could not conclude were harmless.
We hold that it was within the circuit court’s
discretion to dismiss the charge against Enos as de minimis.
While there were errors of fact in the circuit court’s order
dismissing the charge, those errors did not affect the outcome
and were therefore harmless. In addition, the ICA correctly
analyzed Criminal Trespass onto State Lands and its relationship
to the de minimis statute. While Criminal Trespass onto State
Lands is a property crime, it is not the type of property crime
that motivated the legislature to criminalize possession of any
amount of a dangerous drug.
Moreover, although the amount of methamphetamine Enos
possessed was capable of producing some effect on the body,
quantity is one of many factors a court must consider when
deciding a de minimis motion on a drug charge. In light of the
minute quantity of methamphetamine he possessed and the
mitigating circumstances presented by the facts of this case, the
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circuit court did not abuse its discretion when it dismissed the
Promotion of a Dangerous Drug in the Third Degree charge against
Enos as de minimis.
I. BACKGROUND
A. Enos’s Arrest
On January 21, 2018, around 11:00 p.m., Officer Albert
Moniz of the Honolulu Police Department (HPD)2 did a “routine
patrol check” of an area under the H-1 Freeway near the
intersection of Wai#alae Avenue and Keala#olu Avenue in Honolulu,
“based on complaints that residentially challenged individuals”
were camping there. The area under the freeway belongs to the
State of Hawai#i, and there are signs in the area that say “Keep
Out,” “Government Property,” and “Trespassers will be
Prosecuted.”
Using his flashlight, Officer Moniz saw Enos lying
behind a cardboard box under the freeway and recognized him from
past encounters. When Officer Moniz was about five feet away
from Enos, he noticed a “neoprene pouch with a clear glass pipe
containing a bulbo[u]s end sticking out of it.” Enos tried to
hide the bag under his leg. Recognizing the pipe to be drug
paraphernalia used to smoke methamphetamine, Officer Moniz
instructed Enos to stand up and asked him to hand over the pipe,
2
The account of Enos’s arrest comes from the police report by
Officer Moniz and the Declaration by HPD Detective Reginald Caneda attesting
to the facts that established probable cause. The parties stipulated to the
police report, and for the purposes of the de minimis motion, the facts are
undisputed.
4
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to which he responded “I don’t know what you’re talking about.”
Officer Moniz placed him under arrest for Criminal Trespass onto
State Lands. See HRS § 708-814.7.3 Enos told the Officer, “I
know, but I have nowhere else to go.”
After placing Enos under arrest, Officer Moniz
recovered the glass pipe from the open neoprene pouch, which Enos
denied belonged to him. The open pouch also contained a “clear
zip lock type bag containing a crystalline substance” that
resembled crystal methamphetamine. In addition, a warrant check
revealed three outstanding warrants for Contempt of Court. Enos
was taken into custody and read his Miranda rights. When
questioned thereafter, Enos again denied that he possessed, used,
or owned the pipe. He asserted that he was watching the area for
his friend, who had been using the pipe earlier in the evening
with Enos’s girlfriend.
The pipe and plastic bag were submitted to the HPD
Scientific Investigation Section, and an HPD analyst tested both
for methamphetamine. The pipe contained .002 grams of a
substance containing methamphetamine, and the plastic bag
contained .003 grams of the same. The analyst did not do a
purity test on either substance.
B. Circuit Court Proceedings
In the Circuit Court of the First Circuit (circuit
3
For the text of HRS § 708-814.7, see infra note 9.
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court),4 the State charged Enos with Promoting a Dangerous Drug
in the Third Degree for knowingly possessing methamphetamine,
which is a class C felony. See HRS § 712-1243.5
1. Motion to Dismiss for De Minimis Violation
Enos filed a Motion to Dismiss for De Minimis Violation
(Motion) pursuant to HRS § 702-236.6 The Motion argued that the
amount of methamphetamine found was de minimis because it was
“neither useable nor saleable for any illicit purpose.”7 To
support this claim, the Motion pointed to our decision in State
v. Vance, 61 Haw. 291, 307, 602 P.2d 933, 944 (1979), which Enos
said
approved dismissing charges based upon possession of a small
amount of a dangerous drug “where . . . the amount is
microscopic or is infinitesimal and in fact unusable as a
narcotic, the possibility of unlawful sale or use does not
exist, and proscription of possession under these
4
The Honorable Karen T. Nakasone presided.
5
HRS § 712-1243 provides: “(1) A person commits the offense of
promoting a dangerous drug in the third degree if the person knowingly
possesses any dangerous drug in any amount. (2) Promoting a dangerous drug in
the third degree is a class C felony.”
6
HRS § 702-236 provides in relevant part: “The court may dismiss a
prosecution if, having regard to the nature of the conduct alleged and the
nature of the attendant circumstances, it finds that the defendant’s conduct
. . . [d]id not actually cause or threaten the harm or evil sought to be
prevented by the law defining the offense.”
7
Enos’s motion only addressed the substance containing
methamphetamine recovered from the pipe (.002 grams). The substance recovered
from the bag (.003 grams) was tested on March 8, 2018, after Enos filed the
Motion to Dismiss. On the same day that Enos filed the Motion to Dismiss, he
also filed a Motion for a Bill of Particulars, asking the State to clarify
“the act of possession at issue and the item containing methamphetamine at
issue” and noting the lack of analysis of the contents of the bag. The State
opposed the motion and submitted a Memorandum in Opposition on March 29, 2018.
The State clarified in the Memorandum and again in court on April 2, 2018,
that it was proceeding on possession of both the pipe and the bag, and the
Motion for a Bill of Particulars was denied.
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circumstances may be inconsistent with the rationale of the
statutory scheme of narcotics control.”
Enos asked to incorporate into the record testimony
from past hearings on the issue of how much methamphetamine could
trigger a physiological response. In particular, the Motion
relied on the testimony of Dr. George Read, an expert who
testified before the circuit court in 1999 in State v. Oneha, CR
No. 99-0742. Dr. Read had testified that .008 grams of
methamphetamine “cannot produce a euphoric effect and is
insufficient for sale of illicit use.” Enos asked the court to
credit this testimony rather than that of Dr. Kevin Ho, the
State’s expert in Oneha, who had extrapolated that inhaling
.002–.005 grams of methamphetamine can produce euphoric effects.
In addition, Enos pointed to the fact that the HPD did not test
the substance found in the pipe and bag for purity. He argued
that nothing about the circumstances “indicate[d] that [Enos]
either intended to use or sell” the drug. Accordingly, that
fact, combined with the small amount of material containing
methamphetamine found (of which it was possible that only a
fraction was actually the drug), warranted dismissal of the
charge as de minimis.
In its Memorandum in Opposition, the State argued that
under the totality of the circumstances, Enos’s “conduct did in
fact cause or threaten the harm sought to be prevented, i.e.
narcotic drug use.” The State pointed to the legislative history
of § 712-1243, the statute criminalizing Possession of a
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Dangerous Drug in the Third Degree, and noted that this court has
recognized the purpose of the statute to be “to respond to abuse
and social harm” and to “counter increased property and violent
crimes.” State v. Viernes, 92 Hawai#i 130, 134, 988 P.2d 195,
199 (1990) (quoting H. Conf. Comm. Rep. No. 1 in the 1972 House
Journal at 1040 and 1996 Haw. Sess. L. Act 308 at 970). The
State argued that because the Defendant was found trespassing on
State property - a property crime - when the drugs were found,
Enos indeed threatened the type of harm - property crimes - that
the legislature sought to prevent. Finally, the State
highlighted that the burden of proof rested with Enos to show
that the attendant circumstances warranted dismissal and claimed
that Enos failed to meet that burden. The State argued that Enos
failed to prove that .005 grams of methamphetamine constituted a
de minimis amount and asked the court to credit Dr. Ho’s
testimony in State v. Castro, CR No. 01-1-2105, in which the
expert “opined that a dose ‘smaller’ than .0025 grams can . . .
cause a physiological effect.”
At the hearing on the motion, Enos emphasized that
Criminal Trespass onto State Lands was not among the harms that
the legislature intended to combat by criminalizing drug
possession. Conceding that Enos was found “sleeping in an area
that he wasn’t supposed to be,” Enos nonetheless contended that
the legislature intended to combat “public violence and property
offenses.” According to Enos, this charge constituted an
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“attempt[ ] to pigeonhole what should be paraphernalia drugs
. . . into a felony statute.”
In addition, Enos emphasized that because there was no
purity test done on the net .005 grams of methamphetamine-
containing substance, “[w]e have no idea how much of that
substance was actually meth.” He also pointed to the other
attendant circumstances that minimized his culpability: the pipe
was not warm to the touch, which would indicate recent use; there
were no other tools around that would allow Enos to smoke the
material (e.g., a lighter, scraper, or scooper); Enos had no cash
that would suggest dealing; there was no indication that Enos was
intoxicated when he was arrested; and when discovered, the pipe
was not in use and lying five feet away.
The five-foot distance, which Enos mentioned in his
Motion and at the hearing, did not accurately reflect the police
report, to which Enos stipulated. Although the State called
attention to the mistake on appeal, it did not object to the
misstatement during the hearing. In fact, the report indicated
that Officer Moniz was five feet from Enos when he saw the pipe,
but it did not mention precisely how far the bag and pipe were
from Enos. The report indicated that the pipe was “next to
[Enos’s] left leg.” (Emphasis added.)
The State’s argument in response to Enos at the hearing
focused on the legislature’s intent to prevent property crimes.
The State first emphasized the circumstances in which Enos was
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arrested: he was trespassing on State property in an area with
conspicuous signs and arrested for Criminal Trespass onto State
Lands. This, according to the State, is a property crime. The
State also noted the defendant’s record and his past convictions
for other property offenses (specifically, forgery, unauthorized
control of a propelled vehicle, and escape associated with the
unauthorized control conviction).8 Clarifying to the court that
the amount of drugs found was only one of many factors the court
should consider, the State asserted that Enos had not met his
burden. The State emphasized that the legislature’s intent in
criminalizing possession “was specifically to prevent these
property crimes.” Finally, the State defended Dr. Ho’s analysis
and claimed that even using Dr. Read’s testimony, .005 grams of
methamphetamine would still produce some physiological response,
even if that response fell short of euphoria. In sum, the State
argued that under the totality of the circumstances, Enos’s
offense was more than de minimis.
2. The Order Granting the Motion to Dismiss
The circuit court orally granted Enos’s motion and
issued a written order (Order) two weeks later. In the Order,
the circuit court made eleven Findings of Fact (FOF):
1. On January 21, 2018, Honolulu Police Officer Albert Moniz
(Officer Moniz) found Defendant laying in a cardboard box.
2. It [is] undisputed that Defendant is well-known to
Officer Moniz as a homeless person. Officer Moniz and
8
These convictions were thirteen and eighteen years old
respectively, which Enos pointed out at the hearing.
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Defendant had multiple prior interactions in that regard.
3. Officer Moniz discovered a pouch containing a glass pipe
and zip packet in a homeless encampment, located five (5)
feet away from Defendant, not inside the cardboard box.
4. While Defendant did try to conceal the pouch containing
the pipe and the packet, Defendant repeatedly told Officer
Moniz that it did not belong to him and it belonged to his
friend.
5. No other drug paraphernalia was found on Defendant’s
person.
6. The Defendant told officers he had nowhere else to go and
that was why he was camped out at that location.
7. Officer Moniz initially appended [sic] and arrested
Defendant for Trespassing on State Lands in violation of
section 708-814.7 of Hawaii Revised Statutes (HRS).
8. Officer Moniz recovered the glass pipe and zip packet.
9. The contents of the glass pipe and zip packet were tested
by [an] HPD criminalist . . . .
10. [The] HPD Criminalist . . . determined that the
substance in the pipe and packet at issue weighed a combined
.005 grams and contained methamphetamine.
11. On March 25, 2002, Dr. Kevin Ho, a qualified expert in
the field of Pharmacy, testified that .0025 grams of inhaled
methamphetamine is capable of producing a physiological or
euphoric effect.
Next, in its Conclusions of Law (COLs), the court
concluded that .005 grams “meets the criteria for illicit use.”
The court cited several of our cases that found as little as .002
grams of residue to be more than de minimis, at least absent
other attendant circumstances. See, e.g., State v. Carmichael,
99 Hawai#i 75, 80, 53 P.3d 214, 219 (2002). In light of the
defendant’s burden of proof, the court also stated that “[n]o
evidence was presented to support defense’s challenge that no
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purity analysis was done to determine what portion of the .005
[grams of] substance actually constituted methamphetamine.”
However, the court found that the offense was
nonetheless de minimis. Citing State v. Fukagawa, the court
defined its task as determining whether “the defendant’s conduct
caused or threatened the harm or evil sought to be prevented by
the law defining the offense sufficiently to warrant the
condemnation of conviction.” 100 Hawai#i 498, 505, 60 P.3d 899,
906 (2002). As to the charging statute, HRS § 712-1243, the
court found that this law “proscribes the use and sale of illicit
drugs” in order “to address ‘related social harms, including
property and violent crimes,’” again quoting Fukagawa, 100
Hawai#i at 504–05, 60 P.3d at 905–06.
Addressing the relevant attendant circumstances, the
court found that the pipe and pouch “were not found on the
defendant’s person, but on the ground, five feet away from the
cardboard box that the defendant was lying in.” Likewise, “[n]o
other paraphernalia was found on defendant’s person.” In
addition, Enos was not “engaged in nor suspected of engaging in
any violent activity” nor was he “committing a crime against the
property of another, such as theft, burglary, or property
damage.” Accordingly, the court determined that these
circumstances “do not support a finding of illicit use or intent
for illicit use.”
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Concerning HRS § 708-814.7,9 the court concluded that
Criminal Trespass onto State Lands “is not a property crime
consistent with the legislative intent criminalizing the
possession of any amount of illicit drugs.” The court pointed to
§ 708-814.7(4), which provides: “No conviction under this section
shall be used to establish a felony conviction under section 708-
803.” In turn, HRS § 708-803 (Supp. 2016) covers habitual
property crimes. From § 708-814.7(4), the court concluded that
Criminal Trespass onto State Lands “is specifically exempted from
being a property crime, even though it is contained with Chapter
708, which deals with offenses against property rights.” The
court also noted that the legislative history of § 708-814.7
“indicates a concern that the statute not be used to punish or
criminalize homelessness.” Accordingly, it would be inconsistent
with that intent to construe Criminal Trespass onto State Lands,
the commission of which “ar[ose] out of [Enos’s] homelessness
situation” in the instant case, as a property crime for
determining whether Enos’s drug offense was de minimis.
9
HRS § 708-814.7 provides in relevant part:
(1) [With the exception of certain state property,] a
person commits the offense of criminal trespass onto
state lands if:
. . .
(b) The person enters or remains unlawfully in
or upon any state land on or under any highway,
and the state land has a sign or signs displayed
upon the land that are sufficient to give
reasonable notice that read: “Government
Property - No Trespassing”;
. . . .
(4) No conviction under this section shall be used to
establish a felony conviction under section 708-803.
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The circuit court concluded that, in light of all the
attendant circumstances, Enos “did not cause or threaten the harm
or evil sought to be prevented by the law defining [Possession of
a Dangerous Drug in the Third Degree] sufficient to warrant the
condemnation of conviction.” The circuit court thus granted
Enos’s Motion to Dismiss.
C. ICA Proceedings
The State appealed to the ICA, asking it to vacate the
Order of Dismissal and remand the case for trial. In addition to
reiterating the arguments made to the circuit court, the State
called attention to the discrepancy between the police report and
FOFs 1 and 3. The circuit court found that Enos was lying in a
cardboard box and that the pipe and pouch were five feet away,
but the State asserted that the police report contradicted these
findings,10 rendering them clearly erroneous. Per the State, the
distance between Enos and the pipe, combined with his attempt to
conceal the pipe and his denial that the pipe was his, supported
the conclusion that Enos constructively possessed the drugs. In
response, Enos conceded that FOFs 1 and 3 were inconsistent with
the police report and not supported by evidence. He noted,
however, that the State had the opportunity to object when the
erroneous five-foot distance was raised in the circuit court, but
it did not. Even so, Enos argued the errors were “not fatal to
10
In addition to the discrepancy in the five-foot distance noted
above, the report also indicated that Officer Moniz saw Enos “lying behind a
cardboard box,” not inside it. (Emphasis added.)
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the court’s conclusions” because nowhere did the court find that
Enos was not in possession; to the contrary, ruling that the
violation was de minimis presumes that he was in possession.
In a summary disposition order, the ICA concluded that
FOFs 1 and 3 were clearly erroneous because they were not
supported by any evidence in the record. The ICA could not
conclude that these errors were harmless because, although the
circuit court “made other findings relevant to the issue of
illicit use,” the circuit court included and relied on the
erroneous findings in its decision to grant the Motion to
Dismiss.
However, the ICA agreed with the circuit court’s
conclusion that Criminal Trespass onto State Lands “is not the
harm sought to be prevented by HRS § 712-1243.” The ICA
disapproved of the statutory interpretation by the circuit court;
according to the ICA, Criminal Trespass onto State Lands is
literally a “property crime” under the HRS. However, the ICA
held that Criminal Trespass onto State Lands does not fall within
the “type of property crimes actually associated with dangerous
drug use” that motivated the legislature to criminalize drug
possession. The ICA pointed to Act 161 of 2002, which amended
§ 712-1243, and noted that while “nondrug offenses” associated
with drug use were of concern to the legislature, the enumerated
examples (“thefts, burglaries, robberies, assaults, rapes, and
homicides”) were markedly different from Criminal Trespass onto
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State Lands. 2002 Haw. Sess. Laws Act 161, § 1 at 569.
Accordingly, the ICA held that while the circuit court was wrong
to say that Criminal Trespass onto State Lands was not a property
crime, it correctly concluded that it was not a property crime
“consistent with the legislative intent of criminalizing the
possession of any amount of illicit drugs.”
However, because the circuit court “exercised its
discretion, in part, based on erroneous findings,” the ICA
vacated the Order and remanded to the circuit court “to
redetermine the issue of whether Enos’s conduct constituted a de
minimis violation.”
D. Supreme Court Proceedings
Enos urges us to reverse the ICA’s vacatur of the order
dismissing the charge against him. He claims that while FOFs 1
and 3 were clearly erroneous, any error was harmless. He also
argues that while the ICA was right to affirm the circuit court
with respect to the “property crime” issue, “it gravely erred in
holding that the court had ‘wrongly concluded’ that Criminal
Trespass onto State Lands is not a property crime.” Finally,
Enos claims that the ICA gravely erred in holding that the
circuit court abused its discretion.
II. STANDARDS OF REVIEW
A. Statutory Interpretation
“Questions of statutory interpretation are questions of
law to be reviewed de novo under the right/wrong standard.”
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Nakamoto v. Kawauchi, 142 Hawai#i 259, 268, 418 P.3d 600, 609
(2018).
B. Findings of Fact
Findings of fact “are subject to the clearly erroneous
standard of review. A finding of fact is clearly erroneous when,
despite evidence to support the finding, the appellate court is
left with a definite and firm conviction that a mistake has been
committed.” State v. Rapozo, 123 Hawai#i 329, 336, 235 P.3d 325,
332 (2010) (quoting State v. Gabalis, 83 Hawai#i 40, 46, 924 P.2d
534, 540 (1996)).
Even if a trial court’s finding is found to be clearly
erroneous, it may nonetheless be harmless. For clear error to be
reversible, it must be shown that the erroneous finding “affected
the outcome of the trial court’s decision.” Chakta v. County of
Maui, 109 Hawai#i 198, 219 (2005) (citing HRS § 641-2); see also
Torres v. Torres, 100 Hawai#i 397, 412 (2002).
C. Motion to Dismiss for De Minimis Violation
The dismissal of a prosecution for a de minimis
infraction is reviewed for abuse of discretion. State v.
Pacquing, 129 Hawai#i 172, 180, 297 P.3d 188, 196 (2013). “A
court abuses its discretion if it clearly exceeded the bounds of
reason or disregarded rules or principles of law or practice to
the substantial detriment of a party litigant.” Rapozo, 123
Hawai#i at 336, 235 P.3d at 332 (quoting State v. Oughterson, 99
Hawai#i 244, 253, 54 P.3d 415, 424 (2002)).
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III. DISCUSSION
The circuit court did not abuse its discretion when it
dismissed the charge against Enos as de minimis. While the ICA
correctly analyzed the Criminal Trespass onto State Lands
statute, we disagree that the challenged findings of fact, while
clearly erroneous, were not harmless. Moreover, we conclude that
it was within the circuit court’s discretion to dismiss the
charge as de minimis because it considered the relevant attendant
circumstances and reasonably concluded that Enos’s conduct did
not “warrant the condemnation of a conviction.” HRS § 702-236.
A. Criminal Trespass onto State Lands Does Not Fall Within the
Harm Sought to Be Prevented by the Felony Drug Statute
A court may dismiss a charge as de minimis if, in light
of the attendant circumstances, it finds that the defendant’s
conduct “[d]id not actually cause or threaten the harm or evil
sought to be prevented by the law defining the offense or did so
only to an extent too trivial to warrant the condemnation or
conviction[.]” HRS § 702-236(1)(b); see also State v. Park, 55
Haw. 610, 617, 525 P.2d 586, 591 (1974). Dismissing a charge as
de minimis falls squarely within “the sound discretion of the
trial court.” Viernes, 92 Hawai#i at 133, 988 P.2d at 198
(citation omitted). The defendant bears the burden of proof in a
de minimis motion. State v. Oughterson, 99 Hawai#i at 256, 54
P.3d at 427.
Throughout the proceedings, the parties disagreed over
whether Criminal Trespass onto State Lands was a “property crime”
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and argued over the proper statutory classification for the law.
This argument stemmed from our previous descriptions of the “harm
or evil,” HRS § 702-236(1)(b), the legislature sought to prevent
by criminalizing possession of any amount of a dangerous drug,
which included combating “property and violent crimes.” Viernes,
92 Hawai#i at 134, 988 P.2d at 199. Since Enos was committing a
property crime when he was arrested, the State argued that his
conduct of drug possession in fact caused the “harm or evil
sought to be prevented by” HRS § 712-1243, Promotion of a
Dangerous Drug in the Third Degree.
At the outset, the circuit court’s interpretation of
the Criminal Trespass onto State Lands statute was incorrect.
The circuit court concluded that, as a matter of statutory
interpretation, Criminal Trespass onto State Lands is exempted
from the “property crime” designation because this offense cannot
“be used to establish a felony conviction” under the Habitual
Property Crime law. HRS § 708-814.7(4). We agree with the State
that this reasoning conflates the definition of a property crime
with a particular subclass of property crimes that can support
enhanced penalties under the habitual property crime statute. As
the ICA correctly concluded, Criminal Trespass onto State Lands
is by definition a “property crime,” sentencing exclusions
notwithstanding.
Nonetheless, the ICA was also correct to hold that the
legislature was not concerned with Criminal Trespass onto State
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Lands when it criminalized drug possession. In turn, the fact
that Enos was committing that offense when he was arrested does
not preclude a court from determining that his conduct was de
minimis. Framing the question as simply one of statutory
interpretation, as the circuit court did and the State urged,
elides the true issue. The Criminal Trespass onto State Lands
statute does not need to be inflexibly classified as a “property
crime” or not, nor does committing a property crime determine
whether Enos’s conduct cannot be considered de minimis. Rather,
the operative question is whether the defendant’s conduct (which,
here, involved Criminal Trespass onto State Lands) falls within
“the harm or evil sought to be prevented” by the drug statute.
HRS § 702-236(1)(b). The ICA concluded that the legislature was
not concerned with property crimes as a class, but “with the type
of property crime actually associated with dangerous drug use.”
It so concluded based on legislative history that pinpointed
specific kinds of crimes that posed a particular concern.
A review of the legislative history confirms that
Criminal Trespass onto State Lands does not fall within the ambit
of the legislature’s concerns over drug crimes. The language
“property and violent crimes,” which, as mentioned, we have
adopted in describing the legislative intent in criminalizing
drug possession, see, e.g., Viernes, 92 Hawai#i at 134, 988 P.2d
at 199, traces to the 1996 amendments to HRS § 712-1243. The
House Standing Committee Report stated an intent to penalize
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possession and distribution of drugs, and methamphetamine in
particular, in order “to counter increased property and violent
crimes associated with the use of this dangerous drug.” H.
Stand. Comm. Rep. No. 734-96, in 1996 House Journal, at 1312; see
also S. Stand. Comm. Rep. No. 2597, in 1996 Senate Journal, at
1212 (“The proliferation of drugs has also had a direct and
significant impact on the increase in and severity of both
violent and property crimes.”).
However, HRS § 712-1243 has been amended twice more
since 1996, in 2002 and 2004, and those Acts put a finer point on
the kinds of crimes associated with drug use that concerned the
legislature. Act 161 of 2002, cited by the ICA and intended to
lessen penalties for nonviolent drug offenders, noted that “a
large percentage of persons who are arrested for both drug and
nondrug offenses (such as thefts, burglaries, robberies,
assaults, rapes, and homicides) test positive for recent drug
use.” 2002 Haw. Sess. Laws Act 161, § 1 at 569. In addition,
the legislature found:
Adults who are under the influence of a controlled substance
or alcohol commit many offenses to raise revenue to support
their habits. Some mind and mood altering drugs induce
criminal and often violent behavior . . . . Some drugs may
also reduce an offender’s ability to empathize with a
potential victim, resulting in episodes of seemingly
mindless violence.
Finally, some crimes, including crimes of violence, are
committed in the normal course of conducting illicit drug
businesses and enterprises. These include strong-arm
robberies and “rip-offs,” violent retaliations for these
offenses, and efforts to protect markets and “turf” by means
of intimidation and terrorism directed against “would be”
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competitors and drug purchasers who patronize competing drug
distributors.
2002 Haw. Sess. Laws Act 161, § 1 at 569 (emphases added).
The 2004 amendments responded specifically to
methamphetamine addiction, and while the Act’s language focused
less on drug-related crimes than the 2002 amendments, the
Preamble stated its purpose as, in relevant part, “deter[ring]
the proliferation of drug trafficking and importation into
Hawaii” and “expand[ing] access to treatment for first time
nonviolent drug offenders.” 2004 Haw. Sess. Laws Act 44, § 1 at
205 (emphasis added).
Thus, the most recent amendments to HRS § 712-1243
indicate that the legislature’s concern with drug-related crimes
has focused primarily on violence. The history of both the 2002
and 2004 amendments evince the legislature’s intent to be more
lenient on nonviolent offenders while preventing and punishing
crimes of violence. To the extent the legislature was motivated
by preventing property crimes, it was concerned with, as the ICA
put it, “the type of property crimes actually associated with
dangerous drug use,” such as theft, burglary, and robbery; not
simply property crimes as a category.11
Accordingly, the ICA was correct when it concluded that
11
To be clear, committing a property crime associated with dangerous
drug use - i.e., the kind of property crime that motivated the legislature to
criminalize possession of any amount of a dangerous drug - does not foreclose
de minimis dismissal. The attendant circumstances must be evaluated in each
individual case to determine whether the defendant caused or threatened “the
harm or evil sought to be prevented” by the statute. HRS § 702-236(1)(b).
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deterring Criminal Trespass onto State Lands, a “property crime”
to be sure, did not motivate the legislature in passing and
subsequently amending § 712-1243. In turn, Enos could commit the
property crime of Criminal Trespass onto State Lands while still
warranting de minimis dismissal of the drug possession charge.
In other words, the fact that Enos was committing the property
offense of Criminal Trespass onto State Lands does not mean that
his conduct “actually cause[d] or threaten[ed] the harm of evil
sought to be prevented” by § 712-1243, as the State urged. HRS
§ 702-236(1)(b).
B. The Clearly Erroneous Findings of Fact Were Harmless
Given that the ICA’s analysis of the Criminal Trespass
onto State Lands offense presents no errors of law, we must next
turn to the errors of fact. The ICA agreed with the State that
“the circuit court clearly erred in finding that Enos was lying
‘inside’ the cardboard box and that the pipe and packet were
located ‘five feet away’ from Enos.” Enos concedes that these
points were clearly erroneous. The police report - evidence to
which the parties stipulated - stated that the officer was five
feet away from Enos, that the pipe was “near” Enos, and that Enos
was lying behind, not in, the box; these facts were not
controverted. However, Enos asserts that the ICA erred insofar
as it “[could not] conclude that the circuit court’s inclusion of
and reliance on FOFs 1 and 3 was harmless error.”
We agree with Enos that these errors were harmless.
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While the ICA cited the “inclusion of and reliance on” the
erroneous findings as its basis to remand the case, an analysis
of the relevance of the erroneous findings shows that neither
error affected the circuit court’s decision to dismiss. First,
Enos’s location relative to the cardboard box has no bearing at
all on the offense for which he was charged. His position
“behind” rather than “in” the cardboard box makes his conduct of
drug possession neither more nor less “harmful” or “evil” per the
de minimis statute, and so this erroneous finding of fact is
harmless.
That leaves the erroneous finding that the pipe and
pouch were five feet away from Enos when discovered. The State
argued that this fact bore directly on the matter of possession.
But Enos responded that in finding his conduct to be de minimis
under the drug possession statute, the circuit court must have
“presumed that he was in possession of the items.” In other
words, for a court to find that an offense is de minimis, it must
inherently find that all of the elements of the offense are met.
Per Enos, this means that the distance between him and the
paraphernalia is inconsequential, because the court must have
necessarily concluded he possessed them, at least constructively,
in order to determine that his conduct was de minimis.
We agree with Enos that the distance does not matter to
the issue of possession because the circuit court found, as it
must have, that the possession element was met. First, the
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circuit court concluded explicitly that Enos had possessed the
drugs in its COLs.12 Even if it had not, as we noted in Rapozo,
the de minimis statute derives from the Model Penal Code, the
commentary to which states that the de minimis statute
“authorizes courts to exercise a power inherent in other agencies
of criminal justice to ignore merely technical violations of
law,” and “[a]melioration of the letter of the law is both
necessary and inevitable[.]” 123 Hawai#i at 337, 988 P.2d at 333
(quoting 1 American Law Institute, Model Penal Code and
Commentaries, § 2.12 at 399, 404 (1962)) (emphases added). This
context shows that a violation of the letter of the law is
intrinsic to dismissing a charge as de minimis, and violation of
the letter of HRS § 712-1243 requires possession. Thus, the
five-foot distance does not bear on the issue of possession in
this case, because the dismissal of the charge as de minimis
inherently required the circuit court to find that the possession
element was met. As such, the ICA erred in concluding that the
plainly erroneous findings of fact were not harmless.
C. The Circuit Court Was Within its Discretion to Grant the De
Minimis Motion.
We must finally consider whether the circuit court
abused its discretion in granting the de minimis motion.13 We
hold that it did not. The circuit court did not “clearly
12
The pertinent COL read: “Defendant’s conduct of possessing a very
small amount of the drug . . . .” (Emphasis added.)
13
The ICA did not reach this question and remanded the case to the
circuit court in light of the clear errors of fact.
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exceed[ ] the bounds of reason or disregard[ ] rules or
principles of law or practice to the substantial detriment of”
the State when it concluded that Enos’s conduct did not “cause or
threaten the harm or evil sought to be prevented by” Promotion of
a Dangerous Drug in the Third Degree. Rapozo, 123 Hawai#i at
336, 235 P.3d at 332; HRS § 702-236(1)(b).
In Fukagawa, we described Hawai#i’s drug laws as
“intended to control the use and sale of illicit drugs . . . and
to address related social harms, including property and violent
crimes.” 100 Hawai#i at 504, 60 P.3d at 905. As discussed
above, a review of the development of the Hawai#i drug law
framework since Fukagawa indicates that the “harm or evil sought
to be prevented by” Promotion of a Dangerous Drug in the Third
Degree includes deterring drug-related crimes, and violent crimes
in particular, while easing penalties on low-level, nonviolent
offenders.
Although Promotion of a Dangerous Drug in the Third
Degree on its face applies explicitly to drugs in any amount,
“where a literal application of HRS § 712-1243 would compel an
unduly harsh conviction for possession of a microscopic trace of
a dangerous drug, HRS § 702-236 . . . may be applicable to
mitigate this result.” Vance, 61 Haw. at 307, 61 P.2d at 944;
see also Fukagawa, 100 Hawai#i at 504, 60 P.3d at 905. The
quantity possessed of a dangerous drug is “microscopic” or
“infinitesimal,” Vance, 61 Haw. at 307, 602 P.2d at 944, and de
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minimis dismissal is warranted if the amount could not “produce a
pharmacological or physiological effect.” Fukagawa, 100 Hawai#i
at 506, 60 P.3d at 907 (citing State v. Hironaka, 99 Hawai#i 198,
209, 53 P.3d 807, 817 (2002); State v. Balanza, 92 Hawai#i 279,
283–85, 1 P.3d 281, 285–87 (2000)).
Even so, we have long insisted that “quantity is only
one of the surrounding circumstances a court must consider.” Id.
at 505, 60 P.3d at 906. “[B]efore [the de minimis statute] can
be properly applied in a criminal case, all of the relevant facts
bearing upon the defendant’s conduct and the nature of the
attendant circumstances regarding the commission of the offense
should be shown to the judge.” Park, 55 Hawai#i at 616, 525 P.2d
at 591. Possession of an amount of drugs capable of producing a
“pharmacological or physiological effect” may nonetheless warrant
dismissal as de minimis if the amount possessed approaches
“infinitesimal” - which is to say, a very small amount - and the
other attendant circumstances indicate that the defendant “did
not cause or threaten the harm or evil sought to be prevented by
the law defining the offense.” Vance, 61 Hawai#i at 307, 602
P.2d at 944; HRS § 702-236(1)(b); see also Viernes, 92 Hawai#i at
134, 988 P.2d at 199. In sum, Fukagawa presented the court’s
task in considering a de minimis motion on a drug charge as
follows:
Before dismissing a charge as a de minimis infraction,
a court must consider the amount of drugs possessed
and the surrounding circumstances to determine if the
defendant’s conduct caused or threatened the harm or
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evil sought to be prevented by the law defining the
offense sufficiently to warrant the condemnation of
conviction.
Fukagawa, 100 Hawai#i at 505, 60 P.3d at 905 (emphasis added).
In the instant case, the circuit court concluded, based
on competing expert testimony, that the aggregate .005 grams of
substance containing methamphetamine could produce a
“physiological or euphoric effect” and therefore “[was] not a de
minimis amount.” However, it nonetheless decided to dismiss the
charge. While not de minimis, the circuit court concluded that
the amount possessed was “very small,” and the other attendant
circumstances supported dismissal. In particular, the circuit
court found that: “no other paraphernalia was found on [Enos’s]
person”; Enos “was not engaged in or suspected of engaging in any
violent activity”; he was trespassing onto state lands, but that
offense does fall within the ambit of the legislature’s concern
with respect to drug possession and property crimes; and the
trespassing offense occurred because he was homeless and “had
nowhere else to go.”
Considering “the nature of the conduct alleged and the
nature of the attendant circumstances,” including quantity, it
was not an abuse of discretion for the circuit court to conclude
that Enos’s conduct “did not actually cause or threaten the harm
or evil sought to be prevented by the law defining the offense or
did so only to an extent too trivial to warrant the condemnation
of conviction[.]” HRS § 702-236(1). None of the attendant
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circumstances indicated that Enos “cause[d] or threaten[ed]” any
of the “harms or evils” the legislature contemplated in passing
and amending § 712-1243. Most importantly, Enos falls squarely
into the category of nonviolent, low-level offender that the
statute seeks to treat rather than incarcerate. While this alone
does not change the fact that Enos violated § 712-1243 and
thereby committed a felony, under these circumstances, including
the “very small amount” of substance containing methamphetamine
found, we hold that the circuit court did not abuse its
discretion in dismissing the charge against Enos. See Rapozo,
123 Hawai#i at 332, 235 P.3d at 328 (“A court abuses its
discretion if it clearly exceeded the bounds of reason or
disregarded rules or principles of law or practice[.]” (citation
omitted)).
To be clear, the quantity of drugs possessed remains a
critical consideration when deciding a de minimis motion on a
drug charge. It would be an abuse of discretion, for instance,
if a court gave no consideration at all to the quantity
possessed. Cf. Fukagawa, 100 Hawai#i at 504–05, 60 P.3d at
905–06. This would run counter to the legislature’s intent to
criminalize possession of “any dangerous drug in any amount.”
HRS § 712-1243 (emphasis added). We only hold in the instant
case that the quantity possessed by a defendant may pass the
threshold into an amount capable of “produc[ing] a
pharmacological or physiological effect” without precluding a
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court from dismissing a charge as de minimis. Fukagawa, 100
Hawai#i at 506, 60 P.3d at 906. As here, if the amount possessed
is capable of producing such an effect but is nonetheless very
small, and if the other attendant circumstances weigh in favor of
dismissal, it is within a court’s sound discretion to dismiss the
charge as de minimis.
Moreover, even though the circuit court did not credit
the defendant’s argument that the substance containing
methamphetamine was not tested for purity, the form of the drug
and the place it was found -residue in a pipe and a bag - bears
on the de minimis analysis. The legislature decriminalized
paraphernalia possession in 2017. See HRS § 329-43.5 (Supp.
2017). In the Act making paraphernalia possession a violation,
the legislature found “that state funds are better spent on
community programs and rehabilitation of nonviolent, low-risk
drug offenders[.]” Act 72 § 1, 2017 Session Laws of Hawai#i at
367. This change puts the legislative intent behind the Hawai#i
drug scheme into sharper relief: possessing paraphernalia is not
a “harm or evil” that “warrants the condemnation of a
conviction,” and certainly not a felony conviction. HRS § 702-
236(1)(b). Enos was found with mere milligrams of residue of
unknown purity, which was recovered from two pieces of
paraphernalia, a pipe and a virtually-empty bag.14 During the
14
Drug paraphernalia is defined in HRS § 329-1 (Supp. 2016) as
all equipment, products, and materials of any kind which are
(continued...)
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hearing on the Motion before the circuit court, Enos asserted
that the charge was “attempting to pigeonhole what should be
paraphernalia drugs, which is a violation, into a felony
statute.” While the circuit court did not rely on this assertion
in its Order, “it is well-settled that ‘an appellate court may
affirm a judgment of the lower court on any ground in the record
that supports affirmance.’” Fukagawa, 100 Hawai#i at 506
(quoting State v. Dow, 96 Hawai#i 320, 326, 30 P.3d 96, 932
(2001)). Thus, we may consider the fact that the “very small
amount” of methamphetamine that Enos possessed was recovered from
paraphernalia, possession of which is only a violation, in
reaching our conclusion that the circuit court did not abuse its
discretion. This attendant circumstance relates directly to the
“harm or evil” of Promotion of a Dangerous Drug in the Third
Degree, which the legislature could not have intended to be used
to subvert its changes to the paraphernalia statute.
From the above analysis, we conclude that the circuit
court did not “clearly exceed the bounds of reason” nor did it
14
(...continued)
used, primarily intended for use, or primarily designed for
use, in planting, propagating, cultivating, growing,
harvesting, manufacturing, compounding, converting,
producing, processing, preparing, testing, analyzing,
packaging, repackaging, storing, containing, concealing,
injecting, ingesting, inhaling, or otherwise introducing
into the human body a controlled substance in violation of
[the Uniformed Controlled Substances Act, HRS Chapter 329.]
This definition includes: “envelopes[ ] and other containers used,
primarily intended for use, or primarily designed for use in packaging small
quantities of controlled substances” and “objects used . . . in inhaling . . .
methamphetamine into the human body” like a “glass . . . pipe.” HRS § 329-1.
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“disregard rules or principles of law” when it granted Enos’s
Motion. Rapozo, 123 Hawai#i at 332, 60 P.3d at 328.
Accordingly, the circuit court did not abuse its discretion in
dismissing the charge against Enos as de minimis.
IV. CONCLUSION
The ICA correctly analyzed the Criminal Trespass onto
State Lands statute and its relation to the de minimis motion
brought by Enos in this case. However, the ICA erred by holding
that the clearly erroneous findings of fact were not harmless.
The circuit court did not abuse its discretion by dismissing the
charge against Enos as de minimis. Thus, we reverse the June 28,
2019 judgment on appeal of the ICA.
Jon N. Ikenaga /s/ Mark E. Recktenwald
for petitioner
/s/ Paula A. Nakayama
Stephen K. Tsushima
for respondent /s/ Sabrina S. McKenna
/s/ Richard W. Pollack
/s/ Michael D. Wilson
32