State v. Burdett

NOT F()R PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER NO. 29557 IN THE INTERMEDlATE COURT OF APPEALS i;iu in OF THE STATE OF HAWAl‘I STATE OF HAWAfI, Plaintiff~Appellee, v. ALBERT JESSE BURDETT, Defendant-Appellant APPEAL F'ROM THE CIRCUIT COURT OF THE FIRST CIRCUIT (CR. NO. 07~1-1441) SUMMARY DISPOSITION ORDER (By: Foley, Presiding Judge, Fujise and Leonard, JJ.) Defendant-Appellant Albert Jesse Burdett (Burdett) appeals the Judgment, entered on December 23, 2008, by the Circuit Court of the First Circuit (circuit court).1 Burdett was convicted of Promoting a Dangerous Drug in the Third Degree, in violation of Hawaii Revised Statutes (HRS) § 712-1243 (Supp. 2009) and Unlawful Use of Drug Paraphernalia, in violation of HRS § 329~43.5(a) (l993). On appeal, Burdett contends (1) the circuit court erred by denying his Motion for Judgment of Acquittal and renewed Motion for Judgment of Acquittal and (2) there was insufficient evidence to convict him. Upon careful review of the record and the briefs submitted by the parties and having given due consideration to the arguments advanced and the issues raised by the parties, we resolve Burdett's points of error as follows: 1 The Honorable Virginia L. Crandall presided. NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER (1) When the evidence is viewed "in the light most favorable to the prosecution and in full recognition of the province of the trier of fact, a reasonable mind might fairly conclude" Burdett was guilty beyond a reasonable doubt of Promoting a Dangerous Drug in the Third Degree and Unlawful Use of Drug Paraphernalia. State v. Hicks, 113 HawaFi 60, 69, 148 P.3d 493, 502 (2006) (quoting State v. Maldonado, 108 HawaiH 436, 442, 121 P.3d 901, 907 (2005)). Therefore, the circuit court did not err by denying Burdett's Motion for Judgment of Acquittal. (2) There was credible evidence of "sufficient quality and probative value to enable a person of reasonable caution to support a conclusion" that Burdett knowingly possessed a dangerous drug in any amount. State v. Matavale, 115 HawaiU. 149, 157-58, 166 P.Bd 322, 330-31 (2007) (quoting State v. Batson, 73 Haw. 236, 248~49, 831 P.2d 924, 931 (1992)) (brackets omitted). There was credible evidence of "sufficient quality and probative value to enable a person of reasonable caution to support a conclusion" that Burdett knowingly used drug paraphernalia to use cocaine. ld; Honolulu Police Officer Tyler Maalo (Officer Maalo) testified that he initially observed Burdett squatting down. As Officer Maalo approached Burdett, he observed Burdett rise and drop a glass pipe which was determined to contain cocaine. Although Burdett presented contradictory testimony that Burdett could not have been the person squatting down when Officer Maalo approached the area, and thus, not the person who possessed drugs or drug paraphernalia, the issue is one of credibility of the witnesses. Apparently, the jury found Officer Maalo's testimony credible. "It is well~settled that an appellate court will not pass upon issues dependent upon the credibility of witnesses and the weight of the evidence; this is the province of the trier of fact." State v. Mattiello, 90 Hawai‘i 255, 259, 978 P.2d 693, NOT FOR PUBLICATION IN WES'I"S HAWAI‘I REPORTS AND PACIFIC REPORTER 697 (1999) (internal quotation marks, citation, and brackets omitted; block quote format changed). Therefore, 1T IS HEREBY ORDERED that the Judgment, entered on December 23, 2008, by the Circuit Court of the First Circuit is affirmed. DATED: Honolulu, Hawafi, March 9, 2010. On the briefs: Stuart N. Fujioka, Cé;;A4@j§%K?`i h for Defendant-Appellant. Presiding Judge Delanie D. Prescott-Tate, ig j4;;JiL/ .. 7 Deputy Prosecuting Attorn€Y, <5Zz%:j’** .Al\ City and County of Honolulu, Associate Judge for Plaintiff~Appellee. . A