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Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
13-JUN-2023
10:04 AM
Dkt. 37 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
STATE OF HAWAI#I, Plaintiff-Appellant, v.
EDWIND JOSE, Defendant-Appellee
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CASE NO. 1CPC-XX-XXXXXXX)
SUMMARY DISPOSITION ORDER
(By: Leonard, Presiding Judge, and Hiraoka and Wadsworth, JJ.)
Plaintiff-Appellant State of Hawai#i (State) appeals
from the November 18, 2020 "Findings of Fact; Conclusions of Law
and Order Granting Defendant[-Appellee Edwind Jose's (Jose)]
Motion to Dismiss For De Minimis Violation Filed November 1,
2020" (FOFs/COLs/Order), entered in the Circuit Court of the
First Circuit (Circuit Court).1/ For the reasons explained below,
we affirm.
After Jose was arrested for Criminal Trespass in the
Second Degree, a pre-incarceration search revealed an item
identified as a "glass pipe," from which police later recovered
an aggregate 0.039 grams of a substance containing
methamphetamine. Jose was subsequently charged with Promoting a
Dangerous Drug in the Third Degree, in violation of Hawaii
Revised Statutes (HRS) § 712-1243 (2014).2/
1/
The Honorable Kevin A. Souza presided.
2/
HRS § 712-1243 provides:
(1) A person commits the offense of promoting a
(continued...)
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On November 1, 2020, Jose filed a Motion to Dismiss for
De Minimis Violation (Motion to Dismiss), which sought dismissal
of the charge pursuant to HRS § 702-236. That section states, in
relevant part:
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 . . . [d]id not actually cause or threaten the harm
or evil sought to be prevented by the law defining the
offenses or did so only to an extent too trivial to warrant
the condemnation of conviction[.]"
HRS § 702-236 (2014) (formatting altered). The State opposed the
motion, arguing that Jose did not meet his burden of proving that
his conduct constituted a de minimis violation because "the
totality of the circumstances suggests [Jose's] conduct did in
fact cause or threaten the harm sought to be prevented, i.e.
narcotic drug use."
On November 18, 2020, the Circuit Court entered the
FOFs/COLs/Order. Initially, the court stated:
The March 16, 2020 Hawai#i Supreme Court order
authorized the court to adjudicate cases through a "non-
hearing" procedure to effectuate expeditious action in light
of the extraordinary circumstances presented by the COVID-19
global pandemic. The court also has authority under Rules
of the Circuit Court, Rule 8 to conduct non-hearing motions
of this nature. Accordingly, the court treats the instant
matter as a non-hearing motion.
(Citation omitted.) The court went on to grant the Motion to
Dismiss, concluding in COLs 7 and 8, as follows:
7. The facts of this case are strikingly similar to
[State v. ]Enos[, 147 Hawai#i 150, 465 P.3d 597 (2020)].
[Jose] was initially issued a trespass warning for being a
nuisance. He was not violent. He was not actively using.
The very small amount of methamphetamine that [Jose]
possessed, mere milligrams, was recovered from
paraphernalia, possession of which is only a violation.
Moreover, the glass pipe with residue containing 0.039 grams
of methamphetamine was subsequently discovered
during the pre-incarceration search.
2/
(...continued)
dangerous drug in the third degree if the person knowingly
possesses any dangerous drug in any amount.
(2) Promoting a dangerous drug in the third degree is
a class C felony.
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8. The court has considered the nature of the conduct
and the nature of the attendant circumstances, and finds,
like in Enos, that [Jose's] conduct does not rise to a crime
of violence, and did not actually cause or threaten the harm
or evil sought to be prevented by [HRS §] 712-1243, or did
so only to an extent too trivial to warrant the condemnation
of conviction.
On appeal, the State contends that the Circuit Court
abused its discretion by: (1) failing to hold a hearing on
Jose's Motion to Dismiss; and (2) dismissing the case as a de
minimis violation. Relatedly, the State challenges COLs 7 and 8,
and the Circuit Court's "ultimate conclusion and order."
(1) The State argues that the Circuit Court abused its
discretion "in treating [the Motion to Dismiss] as a non-hearing
motion since the proceeding required an evidentiary hearing."
The State does not explain, however, why an evidentiary hearing
was required in these circumstances. In support of his Motion to
Dismiss, Jose filed a Declaration of Counsel containing seven
numbered paragraphs of factual assertions and attaching exhibits
marked "A" and "B." In opposing the Motion to Dismiss, the State
filed a Declaration of Counsel stating in part: "Declarant does
not dispute items 1 through 7 of the Declaration of Counsel in
[the Motion to Dismiss]" and "Declarant would stipulate to the
admission of Exhibits A and B, referenced in [the Motion to
Dismiss]." In other words, the State did not oppose the Motion
to Dismiss based on disputed facts that it claimed required an
evidentiary hearing.
Indeed, on appeal, the State does not contest any of
the FOFs entered by the Circuit Court, including FOF 1, which
states: "The State and [Jose] do not dispute the factual
allegations in this case."3/ Nor does the State cite any
authority – and we have found none – that requires an evidentiary
hearing in these circumstances. Accordingly, the Circuit Court
did not abuse its discretion in treating the Motion to Dismiss as
a non-hearing motion and resolving it without an evidentiary
hearing.
3/
The FOFs are thus binding on the parties and this court. See
State v. Rodrigues, 145 Hawai#i 487, 494, 454 P.3d 428, 435 (2019).
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(2) The State contends that the Circuit Court abused
its discretion in dismissing the charge against Jose as a de
minimis violation. We review the dismissal of a prosecution for
a de minimis violation for abuse of discretion. State v.
Pacquing, 129 Hawai#i 172, 179-80, 297 P.3d 188, 195-96 (2013)
(citing State v. Rapozo, 123 Hawai#i 329, 336, 235 P.3d 325, 332
(2010)). "A court abuses its discretion if it clearly exceeded
the bounds of reason or disregarded rules or principles of law or
practice to the substantial detriment of a party litigant."
State v. Enos, 147 Hawai#i 150, 159, 465 P.3d 597, 606 (2020)
(quoting Rapozo, 123 Hawai#i at 336, 235 P.3d at 332).
HRS § 702-236(1)(b) authorizes a court to dismiss a
charge if, in light of the attendant circumstances, it finds that
the defendant's conduct "[d]id not actually cause or threaten the
harm or evil sought to be prevented by the law defining the
offenses or did so only to an extent too trivial to warrant the
condemnation of conviction[.]" The Hawai#i Supreme Court has
stated that "the harm sought to be prevented by [HRS § 712-1243]
is 'the use of the proscribed drug or its sale or transfer for
ultimate use.'" State v. Melendez, 146 Hawai#i 391, 395, 463
P.3d 1048, 1052 (2020) (original brackets and some internal
quotation marks omitted) (quoting State v. Hironaka, 99 Hawai#i
198, 209, 53 P.3d 806, 817 (2002) (quoting State v. Vance, 61
Haw. 291, 307, 602 P.2d 933, 944 (1979))). In Enos, the court
further clarified:
Although Promotion of a Dangerous Drug in the Third
Degree on its face applies explicitly to drugs in any
amount, "where a literal application of HRS § 712-1243 would
compel an unduly harsh conviction for possession of a
microscopic trace of a dangerous drug, HRS § 702-236 . . .
may be applicable to mitigate this result." Vance, 61 Haw.
at 307, 602 P.2d at 944; see also [State v. ]Fukagawa, 100
Hawai#i [498,] 504, 60 P.3d [899,] 905 [(2002)]. The
quantity possessed of a dangerous drug is "microscopic" or
"infinitesimal," Vance, 61 Haw. at 307, 602 P.2d at 944, and
de minimis dismissal is warranted if the amount could not
"produce a pharmacological or physiological effect."
Fukagawa, 100 Hawai#i at 506, 60 P.3d at 907 (citing State
v. Hironaka, 99 Hawai#i 198, 209, 53 P.3d 806, 817 (2002);
State v. Balanza, 93 Hawai#i 279, 283–85, 1 P.3d 281, 285–87
(2000)).
Enos, 147 Hawai#i at 162, 465 P.3d at 609 (emphasis omitted).
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The State argues that the Circuit Court abused its
discretion by dismissing the charge against Jose on de minimis
grounds because:
there was no evidence presented to the court . . . with
respect to whether the drugs in [Jose's] possession was
[sic] saleable or useable. Under such circumstances, there
was no basis upon which the circuit court could conclude
whether 0.039 grams of a substance containing
methamphetamine in [Jose's] possession was incapable of
producing a pharmacological or physiological effect.
The State did not make this argument below in opposing
the Motion to Dismiss. Rather, the State argued generally that
"the totality of the circumstances suggests [Jose's] conduct did
in fact cause or threaten the harm sought to be prevented
. . . ." The only argument made by the State regarding the
amount of methamphetamine that Jose possessed was that "[Jose]
had on his person paraphernalia . . . [that] contained
methamphetamine in the amount of 0.039 grams."4/ Because the
State did not argue below that there was no basis to conclude
that the amount of methamphetamine in Jose's possession was
incapable of producing a pharmacological or physiological effect,
because there was no evidence that the amount was saleable or
usable, that argument is deemed waived. See State v. Moses, 102
Hawai#i 449, 456, 77 P.3d 940, 947 (2003) ("As a general rule, if
a party does not raise an argument at trial, that argument will
be deemed to have been waived on appeal[.]"); State v. Hoglund,
71 Haw. 147, 150, 785 P.2d 1311, 1313 (1990) ("Generally, the
failure to properly raise an issue at the trial level precludes a
party from raising that issue on appeal." (citing State v.
Cummings, 49 Haw. 522, 423 P.2d 438 (1967))).
In any event, whether the amount possessed of a
dangerous drug could (or could not) "produce a pharmacological or
physiological effect" is not necessarily determinative of whether
HRS § 702-236 can be properly applied in a criminal case. Enos,
147 Hawai#i at 162-63, 465 P.3d at 609-10. "Possession of an
amount of drugs capable of producing a 'pharmacological or
physiological effect' may nonetheless warrant dismissal as de
4/
This statement is not accurate. See infra note 5.
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minimis if the amount possessed approaches 'infinitesimal' —
which is to say, a very small amount — and the other attendant
circumstances indicate that the defendant 'did not cause or
threaten the harm or evil sought to be prevented by the law
defining the offense.'" Id. at 162, 465 P.3d at 609. Here, as
in Enos, the Circuit Court determined that the amount of
methamphetamine possessed was "very small. . . , mere
milligrams," and the other attendant circumstances supported
dismissal. See id. at 163, 465 P.3d at 610. In particular, the
Circuit Court found that: Jose was "initially issued a trespass
warning for being a nuisance"; he "was not violent"; he "was not
actively using"; the methamphetamine that he possessed "was
recovered from paraphernalia, possession of which is only a
violation"; and "the glass pipe with residue containing 0.039
grams of methamphetamine was subsequently discovered during the
pre-incarceration search."
The State does not dispute any of the underlying facts
stated in COL 7; they are not clearly erroneous. The State
merely notes "the dissimilarity in the amount of methamphetamine
recovered on [Jose] and defendant Enos, that is 0.039 grams and
.005 grams, respectively[,]" and asserts that "[Jose] possessed
nearly eight times the amount of methamphetamine than defendant
Enos[.]" In making this assertion, however, the State ignores
the fact — which it also does not dispute — that the recovered
residue in this case was determined to be "a substance containing
methamphetamine with a net weight of 0.039 grams." (Footnote
omitted; emphasis added.) Given that the purity of the recovered
substance is unknown,5/ the State's argument lacks an evidentiary
basis. Cf. Enos, 147 Hawai#i at 163-64, 465 P.3d at 610-11
(considering the attendant circumstance that "Enos was found with
mere milligrams of residue of unknown purity, which was recovered
from two pieces of paraphernalia . . . ."). The Circuit Court
did not err in concluding in COL 7 that the relevant facts of
5/
The Circuit Court specifically found in FOF 7, note 3 (which the
State does not contest): "No further analysis was conducted to determine how
much of the substance analyzed by [the Honolulu Police Department criminalist]
was in fact methamphetamine. Therefore, it is not known how much of the 0.039
grams of substance is actually methamphetamine."
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this case are similar to those in Enos.
Considering "the nature of the conduct alleged and the
nature of the attendant circumstances," including "the very small
amount" of substance containing methamphetamine found, it was not
an abuse of discretion for the Circuit Court to conclude that
Jose's conduct "[d]id not actually cause or threaten the harm or
evil sought to be prevented by [HRS § 712-243,] or did so only to
an extent too trivial to warrant the condemnation of
conviction[.]" Accordingly, COL 8 is not wrong, and the Circuit
Court did not abuse its discretion in dismissing the charge
against Jose, pursuant to HRS § 702-236.
For the reasons discussed above, we affirm the
November 18, 2020 "Findings of Fact; Conclusions of Law and Order
Granting Defendant's Motion to Dismiss For De Minimis Violation
Filed November 1, 2020," entered in the Circuit Court of the
First Circuit.
DATED: Honolulu, Hawai#i, June 13, 2023.
On the briefs:
/s/ Katherine G. Leonard
Stephen K. Tsushima, Presiding Judge
Deputy Prosecuting Attorney,
City & County of Honolulu,
for Plaintiff-Appellant. /s/ Keith K. Hiraoka
Associate Judge
William H. Jameson,
Deputy Public Defender,
for Defendant-Appellee. /s/ Clyde J. Wadsworth
Associate Judge
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