concurring.
Because, for the reasons stated in the opinion of the court, “ ‘to buy’ clearly falls outside the meaning of ‘to distribute’ as that term is defined in HRS § 712-1240 [ (1985) ],” opinion of the court at 174, I concur fully in the court’s holding “that ‘to distribute,’ as that term is defined in HRS § 712-1240, does not include ‘to buy’ or ‘to offer to buy,’ ” id. at 174, and that, therefore, on the. undisputed record before us, the defendant-appellant Aluli “did not, as a matter of law, violate HRS § 712-1242(l)(c) [(Supp.1992)].” Id.
I believe, however, that the court’s analysis ends prematurely, and so I am compelled to write separately.
Aluli was charged with, tried for, and convicted of the offense of promoting a dangerous drug in the second degree in violation of HRS § 712-1242(l)(c), a class B felony punishable by an indeterminate ten-year prison term, see HRS §§ 712-1242(2) (Supp.1992) and 706-660(1) (Supp.1992), for having allegedly “distribute[d] any dangerous drug in any amount.” (Emphasis added.) As I will demonstrate, however, this trick could only be performed if, given the uncontroverted evidence adduced at Aluli’s trial, “distributes,” as that term is employed in HRS § 712—1242(l)(c), is fungibly synonymous with “possesses,” as that term is employed in HRS § 712-1243(1) (1985) 1—Promoting a dangerous drug in the third degree—, a class C felony punishable by an indeterminate five-year prison term. See HRS §§ 712-1243(2) (1985) and 706-660(2) (Supp.1992). Accordingly, I would hold that if “possesses” and “distributes” are statutory synonyms for purposes of the drug laws, then Aluli’s conviction in the present case would violate her rights to due process and the equal protection of the laws as guaranteed by article I, section 5 of the Hawai'i Constitution.
“Possession is not defined in the [Hawai'i] Penal Code. However, Black’s Law Dictio*324nary defines the word as[] [‘the] detention and control, or ... custody, of anything which may be the subject of property....[’ ”] State v. Mundell, 8 Haw.App. 610, 617, 822 P.2d 23, 27, cert. denied, 72 Haw. 619, 841 P.2d 1076 (1991).
One purpose of [the penal statutes relating to drugs and intoxicating compounds] is to penalize drug law offenders according to the potential for abuse and social harm involved in their activities, hitting hardest at illegal traffickers (those who either “possess large quantities of dangerous drugs, harmful or detrimental drugs, or who distribute [ ] it in any amount”). Hse. Conf.Comm.Rep. No. 1, in 1972 House Journal, at 1040; see also Commentary on HRS §§ 712-1241 to -1250. Thus, the legislature established a hierarchy of offenses based on the amount and kind of drugs possessed. See HRS §§ 712-1241 to 1250 (1985 & Supp.1990). This hierarchy indicates the legislature’s determination of the possessor’s position in the illegal drug stream. Larger amounts indicate the possessor is a main source of supply; lesser amounts indicate the possessor is a middle man between the main supply source and the consumer; the smallest amounts indicate the possessor is a consumer or user. Commentary to HRS §§ 712-1241 to -1250.
Id. at 619-20, 822 P.2d at 28 (some emphases and brackets in original and some added).
Under the Hawaii Penal Code, “the offenses of distributing a given substance are classed or graded one degree above the possession of the same amount.” Opinion of the court at 172 (quoting the Commentary on HRS §§ 712-1241 to -1250) (emphasis added). And yet, by blurring “the intended distinction between suppliers/distributors and possessors” (emphasis added), “all of those possessors who bought their drugs could, at the discretion of the prosecutor, be charged with distribution.” Id. at 172-173 (emphasis added).
This court has ruled that
[a] denial of [the] rights [to due process and the equal protection of the laws] would ... result ... if a violation of [a] misdemeanor statute ... would invariably and necessarily constitute a violation of [a] felony provision.... Thus, where the same áct committed under the same circumstances is punishable either as a felony or as a misdemeanor, under either of two statutory provisions, and the elements of proof essential to either conviction are exactly the same, a conviction under the felony statute would constitute a violation of the defendant’s rights to due process and the equal protection of the laws.
State v. Modica, 58 Haw. 249, 250-51, 567 P.2d 420, 421-22 (1977) (citations omitted). The “Módica rule,” which applies equally to the possibility of prosecution and conviction under two differentially classed felonies (for example, under either a class B felony statute or a class C felony statute), was expressly reaffirmed in State v. Kuuku, 61 Haw. 79, 80-81, 595 P.2d 291, 293 (1979):
Illustrative of the situation contemplated by Módica is the factual and statutory posture to be found in United States v. Young, 376 A.2d 809 (D.C.App.1977), where the defendant was indicted for the alleged violation oí a felony statute which provided that “[w]hoever threatens within the District of Columbia to kidnap any person or to injure the person of another or physically damage the property of any person [shall be punished].” The defendant claimed that he should have been charged under the misdemeanor statute which provided that “[w]hoever is convicted in the District of threats to do bodily harm [shall be punished].” Every violation of the latter statute would have invariably and necessarily constituted a violation of the felony statute. Thus, under Módica the defendant’s claim would have been upheld. We reaffirm this rule.
Kuuku, 61 Haw. at 81 n. 1, 595 P.2d at 293 n. 1 (emphases and brackets in original).
Assuming, as the State, by clear implication, would have us do in this case, that “possesses” and “distributes” are fungible statutory terms, then Aluli could have been charged with and convicted of either “distri-but[ing] any dangerous drug in any amount” (Promoting a dangerous drug in the second degree), in violation of HRS § 712-1242(l)(c), or “possessing] any dangerous drug in any *325amount” (Promoting a dangerous drug in the third degree), in violation of HRS § 712-1243(1). Inasmuch as a violation of the latter would invariably and necessarily constitute a violation of the former, we would at long last have a case to which the Módica rule would squarely apply.
. HRS § 712-1243(1) provides that "[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." (Emphasis added.)