LAW L¢BF;AF;Y
NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
NO. 29369
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAIT
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sTATE oF HAWAI‘I, Plaintiff-Appellee, v. ,
RONALD STEVEN LOPES, Defendant-Appellant §
53
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APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CR. NO. 07-1-1659)
SUMMARY DISPOSITlON ORDER
(By: Fujise and Leonard, JJ.,
with Nakamura, C.J. dissenting.)
Defendant-Appellant Ronald Steven Lopes (Lopes) appeals
from a judgment of conviction of one count of Methamphetamine
Trafficking in the Second Degree in violation of Hawaii Revised
§ 712-1240.8 (Supp. 2009) in the Circuit Court of
Statutes (HRS)
the First Circuit (circuit court)1. On appeal,
(1) the circuit court abused its discretion in admitting into
evidence the substance recovered in the undercover operation when
(2)
Lopes argues that
there was a break in the chain of custody prior to testing;
the circuit court erred in admitting the results of the FTIR2
test where the State failed to introduce into evidence business
records showing that the equipment was properly calibrated by the
there was insufficient evidence that the
manufacturer; and (3)
Because we agree with
substance recovered was methamphetamine.
Appellant on the first and third issues, we do not address the
second issue.
On September 4, 2007,
indictment with committing the offense of Methamphetamine
in violation of HRS § 712-
Lopes was charged by way of
Trafficking in the Second Degree,
1 The Honorable Michael A. Town presided.
2 Fourier transform infrared spectrometer.
NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
124O.8.3 At the jury trial, Honolulu Police Department (HPD)
Officer Arlene Ah You (Officer Ah You) testified that on June 18,
2007, she was assigned to act as an undercover agent to purchase
illegal narcotics in the Pokai Bay Beach Park area. During the
operation, she entered into an agreement with Lopes to purchase
$4O worth of narcotics. Officer Ah You did not testify that
either she or Lopes mentioned methamphetamines in the course of
Officer Ah You's efforts to purchase narcotics.
Officer Ah You testified that she gave Lopes $4O and he
gave her a plastic packet containing a white crystaline
substance. The State presented witnesses establishing the chain
of custody of the plastic packet, from Officer Ah You to HPD
chemist Hassan Mohamed (Mohamed) who took possession of the
plastic packet on June l9, 2007 and, on the same day, returned
the plastic packet to the evidence custodian. Mohamed did not
testify at trial. The contents of the packet were examined and
tested by HPD criminalist Stacy Riede on June l8, 2008.
Defense counsel objected to the admission into evidence
of the packet containing crystal methamphetamine on the grounds
that there was insufficient foundation laid as to the calibration
of the FTIR and the State failed show a complete chain of custody
for the packet. The circuit court overruled the objection.
The circuit court's decision on an objection to the
chain of custody is reviewed for an abuse of discretion. §;§;§
v. Nakamura, 65 Haw. 74, 8l, 648 P.2d l83, 188 (1982).
The failure of the State to present Mohamed to testify
as to what he did with the plastic packet while it was in his
possession was a break in the chain of custody. "Establishing
the chain of custody is essential to show that the substance
3 The indictment reads:
On or about the 18th day of June, 2007, in the City
and County of Honolulu, State of Hawaii, RONALD STEVEN
LOPES, did knowingly distribute methamphetamine in any
amount, thereby committing the offense of Methamphetamine
Trafficking in the Second Degree, in violation of Section
712-1240.8 of the Hawaii Revised Statutes.
2
NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
analyzed was the substance seized from the defendant." State v.
, VanCe, 61 HaW. 291, 304, 602 P.2d 933, 942 (1979). ObSerVanCe Of
the requirement of establishing a complete chain of custody prior
to testing is particularly important where, as in the present
case, the evidence in question is a substance that is easily
adu1terated. §g§ Vance, 61 Haw. at 303-O4, 602 P.2d at 942
(quoting with approval the settled rule in other jurisdictions
that foundation must be laid "showing the continuous whereabouts
of the exhibit from the time it came into the possession of the
police until it was laboratory tested."); State v. Olivera, 57
HaW. 339, 344, 555 P.2d 1199, 1202 (1976) ("Where the exhibit is
a drug or chemical in the form of a powder or liquid which is
readily susceptible of alteration or substitution, the courts
tend to be strict in requiring that a chain of custody be
established which minimizes the possibility of any tampering with
the exhibit.") It was therefore an abuse of discretion for the
circuit court to admit into evidence the plastic packet and
testimony relating to the testing of the contents of the packet
after the break in the chain of custody.
Disregarding the inadmissible evidence, but viewing the
remaining evidence in the light most favorable to the
prosecution, there did not exist substantial evidence to support
Lopes's conviction for methamphetamine trafficking. §§§ State v.
WallaCe, 80 HaWaiH.382, 412, 910 P.2d 695, 725 (1996). An
essential element of that offense is that the substance in
question is methamphetamine. Officer Ah You did not testify that
she asked for methamphetamine or that Lopes agreed to sell her
methamphetamine. Without evidence establishing that the packet
contained methamphetamine, there was no evidence that Lopes
engaged in the distribution of methamphetamine.
NOT FOR PUBLICATION IN WEST'S I~IAWAI‘I REPORTS AND PACIFIC REPORTER
Having concluded that there was insufficient evidence
to support the conviction, there is no need to address the other
issues raised by Lopes.
Therefore, IT 18 HEREBY ORDERED that the August 28,
2008 judgment of conviction entered by the Circuit Court of the
First Circuit is reversed.
DATED: Honolulu, Hawafi, March 25, 2010.
' On the briefs:
Karen T. Nakasone,
Deputy Public Defender,
for Defendant-Appellant.
Donn Fudo,
Deputy Prosecuting Attorney,
City and County of Honolulu,
for Plaintiff-Appellee.
*ssov ate Iudge