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NO. 28879
IN THE INTERMEDIA'I’E COURT OF APPEALS j
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sTATE oF HAwAl‘I, plaintiff-Appe1lee, v. §§
MELISSA ROSE MAGBITANG, Defendant-Appellant§§ 23
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CR. NO. O5~l~22l6)
SUMMARY DISPOSITION ORDER
(By: Nakamura, Chief Judge, Fujise and Leonard, JJ.)
Defendant~Appellant Melissa Rose Magbitang (Magbitang),
also known as Melissa Rose Victoria, appeals the Judgment filed
on November 6, 2007, in the Circuit Court of the First Circuit
(Circuit Court).W
Magbitang was convicted of Promoting a Dangerous Drug
in the Third Degree, in violation of Hawaii Revised Statutes
(HRs) § 712-1243 (supp. 2003)@ and unlawful use of Drug
Paraphernalia, in violation of HRS § 329~43.5(a) (1993).W
3/ The Honorable Richard W. Pollack presided.
\M
\
HRS § 712-1243(l) provides:
§ 712-1243 Promoting a dangerous drug in the third
degree. (l) 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.
§/ nas § 329-43.5(a) provides=
§ 329-43.5 Prohibited acts related to drug
parapherna1ia. (a) lt is unlawful for any person to use, or
to possess with intent to use, drug paraphernalia to plant,
propagate, cultivate, grow, harvest, manufacture, compound,
convert, produce, process, prepare, test, analy2e, pack,
repack, store, contain, conceal, inject, ingest, inhale, or
otherwise introduce into the human body a controlled
substance in violation of this chapter. Any person who
violates this section is guilty of a class C felony and upon
conviction may be imprisoned pursuant to section 706-660
and, if appropriate as provided in section 706-64l, fined
pursuant to section 706-640.
NOTFORPUBLU1¥HONIN\NESFSHAWUIlRRPORTSANDPACHUCREPORTER
On appeal, Magbitang contends that: (1) in four
instances, the Deputy Prosecuting Attorney {DPA) made improper
comments during his closing and rebuttal arguments which amounted
to prosecutorial misconduct; and (2) there was insufficient
evidence to convict Magbitang of Promoting a Dangerous Drug in
the Third Degree and Unlawful Use of Drug Paraphernalia.
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 Magbitang‘s points of error as follows:
Alleged Prosecutorial Misconduct
In State v. Agrabante, 73 Haw. 179, 830 P.2d 492 (1992), the
Hawaii Supreme Court stated:
Prosecutorial misconduct may provide grounds for a new
trial if the prosecutor's actions denied the defendant
a fair trial. State v. Pemberton, 71 Haw. 466, 796
P.2d 80 (l990). In order to determine whether the
alleged prosecutorial misconduct reached the level of
reversible error, we consider the nature of the
alleged misconduct, the promptness or lack of a
curative instruction, and the strength or weakness of
the evidence against defendant. State v. Senteno, 69
Haw. 363, 366, 742 P.Zd 369, 372 (1987) (Citing State
v. Marsh, 68 Haw. 659, 661, 728 P.2d 1301, 1303
(1986)).
73 Haw. at l98, 830 P.2d at 502; see also State v. Maluia, 107
Hewei‘i 20, 26, 103 P.3d 974, 930 (2005) (when a defendant
alleges prosecutorial misconduct, the court must decide: (1)
whether the conduct was improper; (2) if improper, whether the
misconduct was harmless beyond a reasonable doubt; and (3) if not
harmless beyond a reasonable doubt, whether the misconduct was so
egregious as to bar reprosecution); State v. Palabay, 9 Haw.
App. 4l4, 429, 844 P.2d l, 9 (l992) (an attempt to persuade jury
through deceptive argument is considered to be prosecutorial
misconduct).
Magbitang argues that the DPA's comment in closing
argument that there was no evidence that a remote control would
activate a "Mega Touch machine" was misconduct because the
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Circuit Court had granted the defendant‘s motion in limine to
preclude the introduction into evidence of police testimony
regarding gambling activities at the premises where she was
arrested for drug-related offenses. Magbitang argues that the
DPA's remarks were intended to mislead the jury to conclude that
her testimony that she was reaching for a remote control that
would turn off a Mega Touch gambling machine » and not reaching
for the pouches containing drugs and drug paraphernalia ~ was not
credible.
First, any error stemming from the alleged improper
comment during the DPA's closing argument was waived because no
objection was made. HRAP Rule 28(b)(4). Even if it was not
waived, the comments made during the prosecution's closing
argument were not improper because they stemmed from Magbitang's
own testimony as to both the existence of the Mega Touch machine
and the remote control that would control it. A prosecutor may
properly comment on the state of the evidence and the failure of
the defense to introduce material evidence} State v. Napulou, 85
Hawai‘i 49, 59, 936 P.zd 129'7, 1307 (App. 1997»). notwithstanding
the motion in limine ruling, Magbitang's defense was that, when
she disobeyed the police officer's orders to keep her hands up,
she was trying to reach for the remote control, not the drugs.
lt was not impermissible for the DPA to comment on the strength
of that defense in light of the evidence or lack of evidence
before the jury. :
Magbitang also contends that various similar comments
made during the DPA's rebuttal argument were improper. We
conclude that, in the rebuttal, the DPA went beyond permissible
comments on the state of the evidence to inviting the jury
to draw an inference that he knew to be false:
What you're called on as jurors is to look at the
evidence. And the State has the absolute burden of proof,
and we never shift that, The burden is always on the State.
But before you find a reasonable doubt based on the
defendant‘s testimony, ask yourself is it rooted in any
evidence?
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{Defense counsel] is very thorough when she went over
with the officers. Hey, Officer Yang, you went there four
times. You never saw any evidence of drugs or drug activity?
And he admitted he didn't. But did any testimony come in
from Officer Yang that he observed any Meqa Touch machinesL
that he observed any gambling devices, that he engaged in
any illegal gambling? They went there to investigate
illegal gambling, true. They wanted to know, hey, do you
have these machines on your premises? Is that stuff there?
His whole pointL four different occasions hours at a timeL
and you heard no testimony from Officer Yang about any Mega
Touch machines.
Well, then the raid occurs on May 19th. Officers
sweep in. Not one officer, not two officers. Five, up to
ten officers raid the Game establishment. A number of them
took the stand, including the case agent, the basically
officer~in-charge, Officer Yrojo. No testimony about any
Mega Touch machines. Their whole purpose there was to serve
a search warrant and search for illegal game. Do you think
they would miss - -
(Emphasis added.)
The DPA clearly was not simply arguing that there was
no evidence that the remote control operated gambling machines.
Knowing that there were in fact gambling machines found on the
premises, the DPA asked the jury to infer that there were no
gambling machines because there was no testimony from the police
officers about the gambling machines.
At this point, defense counsel asked to approach the
bench and raised an objection, noting that the DPA was "arguing
things that were in limined out and that's the only reason they
are not in evidence." The DPA pointed out to`the Circuit Court
that the defense should not have filed the motion in limine to
exclude testimony and other evidence of the gambling machines, if
the existence of the gambling machines was central to the
defendant's explanation of her conduct. The Circuit Court
sustained the objection, but did not strike the prosecutor's
remarks.
As soon as the rebuttal argument resumed, the DPA
continued: "No evidence, no evidence of the Mega Touch machine
there -~"[.] Magbitang's objection was sustained and the jury
was instructed to disregard the last comment. The DPA
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nevertheless forged ahead with this line of argument, ". . . if
you‘re asking yourself where are the fingerprints, ask yourself
where everything else is that is claimed to exist on the
premises." Again, Magbitang's objection was sustained and the
jury was instructed to disregard the comment.
we are cognizant of the DPA's dilemma. The defense
successfully argued that the State should be precluded from
introducing testimony by police and other evidence of the
gambling activities observed at the premises where Magbitang was
arrested, and then proceeded to explain defendant's conduct as
reaching for a device to turn off the gambling machines, rather
than reaching for the pouches containing drugs. Nevertheless,
the prosecution may not ask the jury to draw an inference that it
kmMsisnm;Ume
Upon review of the record, we conclude that there is a
reasonable possibility that the prosecution's improper statements
might have contributed to Magbitang's conviction. The evidence
that the pouches belonged to Magbitang was not so overwhelming
that we are convinced that the prosecution's attempts to dissuade
the jury from believing the defendant's testimony about the
presence of gambling machines may not have contributed to
Magbitang's conviction. See, e.q., State v. Suan, 121 Hawafi
169, 176, 214 P.3d 1159, 1166 (App. 2009) (cumulative effect of
prosecutor's improper comments substantially prejudiced the
defendant's right to a fair trial); State v. Pulse, 83 HaWaid
229, 244, 925 P.2d 797, 812 (1996) (same). Although the Circuit
Court promptly struck most of the improper portions of the
rebuttal argument, we cannot conclude that the unstricken
statements, combined with the repeated attempts to lead the jury
to a false conclusion, constituted harmless error beyond a
N()T FOR _l’l?BLIC.ATI()N' IN \VES'I"S H.AW¢AI"I REI’()R'.I`S AND PACII*`I.C,` R'E~POR'I`EI{
reasonable doubt.W Accordingly, we must vacate Magbitang's
conviction and remand for a new trial.W
Sufficiency of the Evidence
Magbitang claims that there was insufficient evidence
to convict her of Promoting a Dangerous Drug in the Third Degree,
in violation of HRS § 7l2~l243 and Unlawful Use of Drug
Paraphernalia, in violation of HRS § 329~43.5{a).
when the evidence adduced in the trial court is
considered in the strongest light for the prosecution, there was
substantial evidence to support Magbitang's convictions. §tate
v. Richie, 88 HawaiH.19, 33, 960 P.2d 1227, 1241 (1998) (quoting
State V. QuitOg, 85 HaWaiT.l28, l45, 938 P.2d 559, 576 (l997)).
when the officers entered and searched the premises,
Magbitang was the only person sitting behind the counter where a
green pouch and black pouch were found. The green pouch
contained 2 packets of methamphetamine ("meth") and, the black
pouch contained, inter alia, a digital scale, numerous empty
Ziploc packets, Q-tips, a plastic straw cut at an angle which had
residue resembling meth, and also a card cut at an angle.
Methamphetamine is a dangerous drug. HRS §§ 329-16(e)(2) and
712-1240. One of the officers testified that the scale, empty
packets, and cut card/straw were instruments used to weigh, hold,
and scoop narcotics. Given the difficulty of proving the
requisite mind set by direct evidence in criminal cases, proof by
circumstantial evidence and reasonable inferences arising from
the defendant's conduct is sufficient to prove intent. State v.
Stocker, 90 HawaiH_85, 92, 976 P.2d 399, 406 (1999). An officer
testified that after Magbitang was told to hold up her hands, she
twice lowered her left hand which looked like she was reaching
5/ Magbitang does not argue that the conduct was so egregious as to
bar reprosecution. we agree.
§/ we note, however, that the Circuit Court may revisit its ruling on
defendant's motion in limine, in light of the defendant's reliance on the
existence of the gambling machines.
N(j)'l` F().R PL?BLICA'I`ION IN WES'I"S HAWAl‘I REP()l~l'l`S AN`D PACII*`IC RICP()R”I`ER
for something. The green pouch and black pouch were under a
counter where Magbitang was sitting on her left side. The jury
could have reasonably inferred that Magbitang was reaching for
the green and black pouches which belonged to her and concluded
that she possessed methamphetamine and drug paraphernalia.
Accordingly, as the evidence in the record was legally
sufficient to support a conviction, the Circuit Court’s November
6, 2007 Judgment is vacated and the case is remanded for a new
trial.
DATED: Honolulu, Hawafi, January 28, 2010.
0 th b ` f : @ w ' »
n e rle S //{~
Phyllis J. Hironaka Chief Judge
Deputy Public Defender
for Defendant~Appellant
Donn Fudo
Deputy Prosecuting Attorney
for Plaintiff~Appellee