State v. Balanza

1 P.3d 281, 93 Haw. 279, 2000 Haw. LEXIS 140
CourtHawaii Supreme Court
DecidedJune 2, 2000
Docket22146
StatusPublished
Cited by78 cases

This text of 1 P.3d 281 (State v. Balanza) is published on Counsel Stack Legal Research, covering Hawaii Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Balanza, 1 P.3d 281, 93 Haw. 279, 2000 Haw. LEXIS 140 (haw 2000).

Opinion

Opinion of the Court by

NAKAYAMA, J.

Defendant-appellant Robert Balanza appeals his conviction of one count of promoting a dangerous drug in the second degree (Count I), in violation of Hawai’i Revised Statutes (HRS) § 712-1242(l)(c) (1993), one count of unlawful use of drug paraphernalia (Count II), in violation of HRS § 329^3.5(a) *282 (1993), and one count of promoting a dangerous drug in the third degree (Count III), in violation of HRS § 712-1243 (1993 & Supp. 1998). On appeal, Balanza contends that the trial court erred in denying: (1) his motion to dismiss Count III as a de minimis offense; (2) his request for a jury instruction on the procuring agent defense; and (3) his motion to sever Count I from Counts II and III. We hold that, under the facts of this case, Balan-za was entitled to a jury instruction on the procuring agent defense and that there was insufficient evidence supporting Balanza’s conviction of Count I. Therefore, we reverse his conviction of Count I and remand the ease for entry of a judgment of acquittal on that count. We affirm his convictions of Count II and Count III.

I. BACKGROUND

On June 4, 1996, Honolulu Police Department (HPD) police officer John Torres, Jr. and another officer were assigned to conduct surveillance in the area of Seaside and Kuhio Avenues in Waikiki based on anonymous reports of drug activity. Officer Haina testified that they observed three men, later identified as Balanza and codefendants Albert Brady and Ricky Moore, speaking to each other during that time. Although the officers had not identified anyone as a suspect, Officer Rick Orton was sent in undercover to attempt to purchase drugs.

As Officer Orton approached the area, Moore walked past him. Orton passed Brady, who was sitting on a planter, and approached Balanza, who was sitting on another planter. When Orton made eye contact, Balanza said, “Howzit.” Orton returned the greeting and asked where he could buy drugs. Balanza asked Orton what he wanted and Orton indicated that he wanted rock cocaine. Balanza then asked Orton if he was a police officer; Orton said that he was not and asked Balanza if he was a police officer. Balanza said that he was not, and then pointed toward Brady and Moore, who were standing together, and said, “He get[.]” Ba-lanza called out to Moore and motioned for him to come over. Balanza told Moore, “He like pick up.”

Moore asked Orton how much money he had and Orton said that he had sixty dollars. Moore went back to where Brady was sitting and returned with three small pieces of rock cocaine. When Orton took out his money, Brady called out to them and told them to wait. Brady then came over, took two pieces from Moore, and put them into Orton’s hand. Moore put the other piece in Orton’s hand. Brady took the money and walked away; Moore followed. At no time did Balanza handle the purchase money or the cocaine. Orton signaled to the other officers that he had bought the drugs.

After Brady and Moore left, Balanza told Orton that he wanted to smoke the “small rock.” Orton said that he did not have a pipe, but Balanza replied, “I got a pipe.” Orton said, “No,” and walked away. Officer John Haina apprehended Balanza. Balanza was arrested after Orton arrived and identified him. In a search incident to arrest, Haina discovered a glass pipe in Balanza’s pocket. The pipe had a residue in it and was of the type commonly used for smoking crack cocaine. An HPD criminalist later extracted the residue with a solvent and determined that the residue weighed 0.004 grams and contained cocaine.

On July 17, 1997, the grand jury indicted Balanza, Brady, and Moore on one count of promoting a dangerous drug in the second degree based upon the transaction with Officer Orton. The grand jury also indicted Balanza on one count of unlawful use of drug paraphernalia and one count of promoting a dangerous drug in the third degree based upon his possession of the pipe and the cocaine residue. On September 16, 1997, Ba-lanza filed a motion to sever Count I from Counts II and III because they arose from separate conduct and would create a risk of a compromise verdict. 1 Balanza also filed a motion for a bill of particulars. The court denied both motions.

On October 10, 1997, Balanza moved to have the charges against him dismissed as de. minimis offenses. He argued that Count I *283 should be dismissed because he only helped the undercover agent locate drugs to purchase and that this was de minimis because his conduct “[d]id not actually cause or threaten the harm or evil to be prevented” by HRS § 712-1242(l)(c). As to Counts II and III, Balanza argued that the amount of cocaine in the pipe was “microscopic, infinitesimal and unusable as a narcotic.” The court also denied this motion.

The case proceeded to trial before a jury. At the close of the prosecution’s case, Balan-za moved for a judgement of acquittal on all counts. He argued that he should be acquitted of Count I based on the procuring agent defense, Count II based on insufficient evidence, and Count III based on insufficient evidence and because, even if proved, it merely constituted a de minimis infraction. The trial court denied his motion as to Count I and as to Counts II and III based on sufficiency of the evidence; the court reserved ruling on the de minimis issue. During the settlement of the jury instructions, the trial court refused to give the procuring agent defense instruction requested by defense counsel. The jury convicted Balanza on all counts. 2

Balanza moved for a judgment of acquittal or a dismissal based on de minimis infractions or a new trial. A hearing on the motion was held on November 20, 1998; the court denied the motion in its entirety and sentenced Balanza to five years’ probation on each count, subject to a special condition that Balanza serve one year of imprisonment. This appeal followed. On appeal, Balanza argues that: (1) Count III should have been dismissed as a de minimis offense; (2) he was entitled to a procuring agent instruction as to Count I; and (3) he was entitled to separate trials for Count I and Counts II and III.

II. DISCUSSION

A. Standard of review

Before a trial court can address whether an offense constitutes a de minimis infraction, the court must make factual determinations regarding the circumstances of the offense; these findings of fact are reviewed under the clearly erroneous standard. State v. Viernes, 92 Hawai'i 130, 133, 988 P.2d 195, 198 (1999). The court must then decide whether to dismiss the charge as a de minim-is offense under the circumstances established in the findings of fact. The court’s ruling is reviewed under the abuse of discretion standard. Id.

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Cite This Page — Counsel Stack

Bluebook (online)
1 P.3d 281, 93 Haw. 279, 2000 Haw. LEXIS 140, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-balanza-haw-2000.