State v. Fukagawa

60 P.3d 899, 100 Haw. 498, 2002 Haw. LEXIS 854
CourtHawaii Supreme Court
DecidedDecember 30, 2002
Docket22810
StatusPublished
Cited by23 cases

This text of 60 P.3d 899 (State v. Fukagawa) 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. Fukagawa, 60 P.3d 899, 100 Haw. 498, 2002 Haw. LEXIS 854 (haw 2002).

Opinions

Opinion of the Court by

MOON, C.J.

Defendant-appellant Ivan Fukagawa appeals from the judgment of conviction and sentence of the Circuit Court of the Second Circuit, adjudging him guilty of; (1) driving under the influence of intoxicating liquor, in violation of Hawai'i Revised Statutes (HRS) § 291-4 (Supp.1998)1 (Count One); (2) promoting a dangerous drug in the third degree, in violation of HRS § 712-1243(1) (1993 & Supp.1998)2 (Count Two); and (3) prohibited acts relating to drug paraphernalia, in viola[500]*500tion of HRS § 329-43.5(a) (1993)3 (Count Three). Fukagawa claims that the motions court, the Honorable Shackley F. Raffetto presiding, erred in denying his motion to dismiss the charge of promoting a dangerous drug in the third degree. Specifically, Fuka-gawa alleges that the motions court erred by: (1) admitting the testimony of the prosecution’s witness, who indicated that the crystal methamphetamme residue recovered from Fukagawa’s pipe may have contained a usable amount of the drug; and (2) denying Fukagawa’s motion to dismiss the charge as a de minimis infraction, pursuant to Hawai'i Revised Statutes (HRS) § 702-236 (1993).'4 For the reasons discussed below, we affirm the order denying Fukagawa’s motion to dismiss and the judgment of conviction and sentence of the circuit court.

I. BACKGROUND

On January 15, 1999, Fukagawa was charged by indictment with driving under the influence of intoxicating liquor, promoting a dangerous drug in the third degree, and prohibited acts relating to drug paraphernalia. On June 14, 1999, Fukagawa filed a motion to dismiss the charge of promoting a dangerous drug in the third degree, asserting that the charge constituted a de minimis infraction. A hearing on the motion was held on July 1,1999.

At the outset of the hearing on Fukaga-wa’s motion, the parties stipulated to the admission of the Maui Police Crime Laboratory Analysis Report Number 98-14511 (identified as “State’s Exhibit 1”), prepared by Julie Wood, which indicated that the substance recovered from a glass pipe in Fuka-gawa’s possession weighed .018 grams and contained methamphetamme. The parties also agreed that,

if Julie Wood were called to testify, she would testify she followed normal accepted procedures in determining the information on this report, and that the pipe recovered under Maui Police Department Report Number 98-14511, after was [sic] tested there was .018 grams of crystal methamphetamine determined to be in that pipe, and it was visible to the naked eyed

The defense called George Wesley Read, Ph.D., a professor of pharmacology, to testify on its behalf. Read was qualified as an expert in the field of pharmacology.6 Read testified, inter alia, that “[m]ethamphet-amine has at least three currently-accepted uses and possibly a fourth.” According to Read, methamphetamme has been used to treat obesity, narcolepsy, attention deficit hyperactive disorder (ADHD), and fatigue. Based upon his review of the available literature, Read testified that ranges of metham-phetamme dosages used to treat obesity, narcolepsy, ADHD, and fatigue are: .01 to .04 grams; .05 to .06 grams; .005 to .015 grams; and .01 to .04 grams, respectively.7

[501]*501With respect to the abuse of methamphetamine—i.e., use of the drug to achieve “euphoria and elation,”—Read testified that a “naive user”8 would use between .05 and .1 grams. When asked about the purity of drugs obtained on the street, Read explained that

there are papers in the technical literature that describe the purity, and it can be very impure, but often might be fifty percent of what is sold might be salt, but it can vary depending upon the purity, that is the conscientiousness of the lab preparing it and a lot of variables, so it is hard, to speak generally about that
You almost have to talk about a, specific product, some specific products that’s [sic] been analyzed, and then you see very clearly what the purity is ....

(Emphasis added.) Additionally, Read testified that there is a difference between the drug as it is purchased and the residue that remains in a pipe after use. Read explained:

So you might say that in a street drug it might be half, or maybe even more of the main drug, but after it is smoked, what is left might be trace amounts of the drug and hardly usable, so depends [sic] on how hard it has been smoked, too. They might put some in, light it, smoke it for awhile, use half of it, set it aside, and heat it again and use some more from it. Eventually, it becomes unusable, and because there’s no drug left, that residue then might still have detectable amounts of drug in it, but we would call them trace amounts.

Read did not indicate that he performed any analysis on the substance weighing .018 grams recovered from Fukagawa’s pipe. With respect to the analysis actually performed on the substance recovered from Fu-kagawa in the instant case, defense counsel and Read had the following exchange:

Q. [By defense counsel] In preparation for this hearing did you have a chance to view a Maui Police Department report lab analysis form?
A. [Read] Yes, I did.
Q. Do you have a copy in front of you?
A. I believe I do.
Q. Are you familiar with the procedures, examination, and analysis of substance by the crime laboratory?
A. If it is a typical one, yes. There are several different procedures. I am not sure I am familiar with the particular one used here on Maui, but they’re usually fairly good tests.
Q. On this report do you see a determination of the weight of the substance?
A. I see there’s .018 grams was scraped from the pipe.
Q. Doctor Read, in your expert opinion would eighteen milligrams or .018 grams produce a euphoric or pharmacological effect for an illicit user?
A. No. A person of—average normal person I would not expect that would produce any of the effects that they would be after. If it were pure methamphetamine, even if it were pure methamphetamine, even then I don’t think it would produce the high that would be sought after.
Q. In your opinion would a person be able to use that .018 grams as an item of sale?
A. Not for illicit use. If it were from a drug company and known to be pure, it would have use therapeutically. At that level it could be used, but no physician or researcher would buy an uncertified drug, so I would never buy this for research purposes, and I don’t think a physician would prescribe it not knowing its purity, but the question is how much is it really. You don’t know.

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Cite This Page — Counsel Stack

Bluebook (online)
60 P.3d 899, 100 Haw. 498, 2002 Haw. LEXIS 854, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-fukagawa-haw-2002.