LAW L!BRAFT§Y
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IN THE SUPREME COURT OF THE STATE OF HAWAIT
---oOo-1-
STATE oF HAWAI‘I ,
Respondent/Plaintiff-Appellant,
VS.
TANYA RAPOZO, aka Tanya Rapoza,
Petitioner/Defendant-Appellee.
NO. 29215
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CR. NO. 07-01-0760)
JULY 29, 2010
MOON; C.J., NAKAYAMA, AND RECKTENWALD, JJ.;
AND ACOBA, J., DISSENTING, WITH WHOM DUFFY, J., JOINS
OPINION OF THE COURT BY RECKTENWALD J.
In the early morning of September 19, 2006,
Petitioner/Defendant-Appellee Tanya Rapo2o, a.k.a. Tanya Rapoza
was stopped by police for driving erratically on Ala Wai
boulevard in Waikiki. She was subsequently placed under arrest
and transported to the Honolulu Police Department's main station,
where she was searched. During that search, a police matron
discovered a .38 caliber bullet inside Rapozo’s brassiere. 'The
bullet was later tested and determined to be operable.
Rapozo, who was a convicted felon, was charged with
Ownership or Possession Prohibited of Any Firearm or Ammunition
By a Person Convicted of Certain Crimes in violation of HawaFi
Revised Statutes (HRS) § 134-7(b) and (h) (Supp. 2007), cited
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igf;a. Rapozo filed a motion to dismiss that charge as a de
minimis infraction within the meaning of HRS § 702-236 (l993).1
In support of her motion, Rapozo submitted a declaration of
counsel which asserted that her explanation for possessing the
bullet was that “she was going to have it made into a charm for a
bracelet.” The Circuit Court of the First Circuit granted the
motion.2 However, the Intermediate Court of Appeals vacated the
dismissal, and Rapozo timely filed an application for a writ of
certiorari with this court.
In her application, Rapozo raises the following
question:
Whether the ICA gravely erred in concluding that the
trial court abused its discretion in dismissing the
case under H.R.S. 702-236 the de minimus statute.
1 HRS § 702-236 X1993) provides:
De minimis infractions. (1) 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:
(a) was within a customary license or
tolerance, which was not expressly refused
by the person whose interest was infringed
and which is not inconsistent with the
purpose of the law defining the offense;
or
(b) 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; or
(c) Presents such other extenuations that it
cannot reasonably be regarded as envisaged
by the legislature in forbidding the
offense.
(2) The court shall not dismiss a prosecution under
subsection (l)(c) of this section without filing a
written statement of its reasons.
2 The Hon0rable Michael A. Town presided.
_2_
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we have recognized previously that it is the
defendant's burden to place “all” of the relevant attendant
circumstances before the trial court, and to establish why
dismissal is warranted in light of those circumstances. §§§L
§4g;, State v. Park, 55 Haw. 610, 6l6, 525 P.2d 586, 591 (1974);
State v. Viernes, 92 HawaFi 190, 134, 988 P.2d 195, 199 (l999)
(quoting State v. Vance, 61 Haw. 291, 307, 602 P.2d 933, 944
(1979)). The only evidence offered by Rapozo in support of her
motion was the declaration of her counsel, which omitted many of
the relevant attendant circumstances. We therefore conclude that
Rapoao failed to carry her burden of establishing that her
conduct was de minimis within the meaning of HRS § 702-236.
However, as we set forth below, we do not preclude the
possibility that Rapozo could carry that burden at a later stage
of the proceedings in the event a more fully developed record
supports dismissal. _gg infra note 16.
Accordingly, we affirm the judgment of the 1CA.
I. Background
A. Factua1 and Procedural Background
On April 24, 2007, Rapozo was charged in an indictment
with Ownership or Possession Prohibited of Any Firearm or
Ammunition By a Person Convicted of Certain Crimes in violation
of HRS § 134-7(b) and (h)3 (Count I), and driving without a
3 At the time of the charged offense, HRS § 134-7 (Supp. 2007)
provided, in relevant part:
(continued. . .)
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license in violation of HRS § 286-102 (Count II).
On February 26, 2008, Rapozo filed a motion to dismiss
Count 1 of the indictment as de minimis within the meaning of HRS
§ 702-236.
Rapozo also submitted a Declaration of Counsel
(declaration) and a memorandum in support of the motion.
Rapozo’s counsel declared,
2.
in relevant part, as follows:
The allegations in this matter are as follows:
a) At approximately 1:14 a.m. on September
19, 2006, Ms. Rapozo was driving a white
pickup truck on Ala Wai Boulevard in the
City and County of Honolulu, State of
Hawaii, when she was pulled over by _
Honolulu police officer Jason Pistor for
driving erratically.
b) After making the stop, Officer Pistor
examined the VIN number on the pickup
: truck and radioed that number to HPD
dispatcher. `
c) Dispatch found that the VIN number belong
[sic] to another vehicle and notified
Officer Pistor of that fact.
d) Officer Pistor then placed the defendant
under arrest for driving under the
influence and without a valid driver's
license and took her to the Central
Processing Division at the main station.
At approximately 2:3O a.m. Ms. Rapozo was given
a pat down search by Police Matron Laura Chin
[sic] who felt something hard in defendant's
brassrere [sic].
3(...continued)
Ownership or possession prohibited, when; pena1ty.
'