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NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER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