NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed Intermediate Court of Appeals CAAP-XX-XXXXXXX 28-DEC-2020 07:50 AM Dkt. 41 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS OF THE STATE OF HAWAI#I
STATE OF HAWAI#I, Plaintiff-Appellee, v. RANDY JOHN, ALSO KNOWN AS WELLISON SIGHRA, Defendant-Appellant
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT (CRIMINAL NO. 1CPC-XX-XXXXXXX)
SUMMARY DISPOSITION ORDER (By: Ginoza, Chief Judge, Leonard and Hiraoka, JJ.)
Defendant-Appellant Randy John, aka Wellison Sighra
(John), appeals from the November 28, 2018 Judgment of Conviction
and Probation Sentence; Notice of Entry (Judgment) entered by the
Circuit Court of the First Circuit (Circuit Court).1
John was charged via Felony Information and Non-Felony
Complaint with Promoting a Dangerous Drug in the Third Degree, in
violation of Hawaii Revised Statutes (HRS) § 712-1243 (2014)
(Count 1),2 and Theft in the Fourth Degree, in violation of HRS
1 The Honorable Fa#auuga L. To#oto#o presided. 2 HRS § 712-1243 provides: § 712-1243 Promoting a dangerous drug in the third degree. (1) 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. (continued...) NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
§ 708-833(1) (Supp. 2019) (Count 2). John filed a motion to
dismiss Count 1 as de minimis. After a hearing held on July 26,
2018, the Circuit Court denied John's motion, and on March 6,
2019, the Circuit Court entered Findings of Fact, Conclusions of
Law [(COLs)], and Order Denying Defendant's Motion to Dismiss
Felony Information (Order Denying Dismissal). Thereafter, John
pleaded no contest to the charged offenses (reserving his right
to appeal the Order Denying Dismissal), was sentenced, and timely
filed a notice of appeal. John raises two, related, points of error on appeal,
contending that the Circuit Court erred by not applying the
correct legal standard when it entered the Order Denying
Dismissal, and abused its discretion by not applying the
appropriate facts adduced at the hearing that indicated that the
offense charged in Count 1 was de minimis.
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 John's points of error as follows:
John primarily contends, citing HRS § 702-236(1)(b) (2014),3 that the Circuit Court used the wrong legal standard
2 (...continued) (2) Promoting a dangerous drug in the third degree is a class C felony. 3 HRS § 702-236 provides, in part:
§ 702-236 De minimis infractions. (1) 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: (a) Was within a customary license or tolerance, which was not expressly refused by the person (continued...)
2 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
because it failed to examine whether the possession of 0.003
grams of a substance containing cocaine "did not actually cause
or threaten the harm or evil sought to be prevented by the law
defining the offense or did so only to an extent too trivial to
warrant the condemnation of conviction."
In State v. Melendez, 146 Hawai#i 391, 395-97, 463 P.3d
1048, 1052-54 (2020), the Hawai#i Supreme Court recently
reiterated that a defendant need not prove that possessed drugs
are incapable of producing any pharmacological or physical effect, stating, inter alia: This court has thus consistently held over the past forty years that when the amount of drugs possessed is unusable, the violation of HRS § 712-1243 does not cause or threaten the harm or evil sought to be prevented by the law defining the offense, and a de minimis dismissal would be warranted in such circumstances. Although we have declined to read a usable quantity standard into HRS § 712-1243, it is clear that if the amount possessed is so minuscule that it cannot be used in such a way as to have any discernible effect on the human body, it follows that the drug cannot lead to abuse, social harm, or property and violent crimes, i.e., the harm sought to be prevented by HRS § 712-1243. Under such circumstances, dismissal under HRS § 702-236 is warranted. Hence, . . . a defendant's burden on a de minimis motion for an HRS § 712-1243 violation is not to specifically prove that the drugs possessed could not have a pharmacological or physiological effect, but to place all of the relevant attendant circumstances before the trial court to establish why dismissal is warranted in light of those circumstances. When the defendant proves the amount of drugs possessed is incapable of producing a pharmacological effect, it is clear the amount is not usable or saleable. In such cases, in the absence of other circumstances indicating the violation actually threatened the harm sought
3 (...continued) whose interest was infringed and which is not inconsistent with the purpose of the law defining the offense; or (b) Did not actually cause or threaten the harm or evil sought to be prevented by the law defining the offense or did so only to an extent too trivial to warrant the condemnation of conviction; or (c) Presents such other extenuations that it cannot reasonably be regarded as envisaged by the legislature in forbidding the offense.
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to be prevented by HRS § 712-1243, de minimis dismissal will be warranted. But proving that the possessed drugs could not have a pharmacological effect is not a condition precedent for de minimis dismissal of a possessory drug violation. Our decisions firmly establish that if the amount of drugs possessed is not usable or saleable, the violation does not engender the harms sought to be prevented by HRS § 712-1243 absent demonstrable evidence to the contrary. In sum, if the possessed drugs are neither usable nor saleable, and the attendant circumstances do not otherwise demonstrate the defendant's violation caused the harm HRS § 712-1243 seeks to prevent, de minimis dismissal is warranted.
Id. at 396-97, 463 P.3d at 1053-54 (emphasis added; citations,
internal quotation marks, and original ellipsis omitted).
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NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed Intermediate Court of Appeals CAAP-XX-XXXXXXX 28-DEC-2020 07:50 AM Dkt. 41 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS OF THE STATE OF HAWAI#I
STATE OF HAWAI#I, Plaintiff-Appellee, v. RANDY JOHN, ALSO KNOWN AS WELLISON SIGHRA, Defendant-Appellant
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT (CRIMINAL NO. 1CPC-XX-XXXXXXX)
SUMMARY DISPOSITION ORDER (By: Ginoza, Chief Judge, Leonard and Hiraoka, JJ.)
Defendant-Appellant Randy John, aka Wellison Sighra
(John), appeals from the November 28, 2018 Judgment of Conviction
and Probation Sentence; Notice of Entry (Judgment) entered by the
Circuit Court of the First Circuit (Circuit Court).1
John was charged via Felony Information and Non-Felony
Complaint with Promoting a Dangerous Drug in the Third Degree, in
violation of Hawaii Revised Statutes (HRS) § 712-1243 (2014)
(Count 1),2 and Theft in the Fourth Degree, in violation of HRS
1 The Honorable Fa#auuga L. To#oto#o presided. 2 HRS § 712-1243 provides: § 712-1243 Promoting a dangerous drug in the third degree. (1) 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. (continued...) NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
§ 708-833(1) (Supp. 2019) (Count 2). John filed a motion to
dismiss Count 1 as de minimis. After a hearing held on July 26,
2018, the Circuit Court denied John's motion, and on March 6,
2019, the Circuit Court entered Findings of Fact, Conclusions of
Law [(COLs)], and Order Denying Defendant's Motion to Dismiss
Felony Information (Order Denying Dismissal). Thereafter, John
pleaded no contest to the charged offenses (reserving his right
to appeal the Order Denying Dismissal), was sentenced, and timely
filed a notice of appeal. John raises two, related, points of error on appeal,
contending that the Circuit Court erred by not applying the
correct legal standard when it entered the Order Denying
Dismissal, and abused its discretion by not applying the
appropriate facts adduced at the hearing that indicated that the
offense charged in Count 1 was de minimis.
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 John's points of error as follows:
John primarily contends, citing HRS § 702-236(1)(b) (2014),3 that the Circuit Court used the wrong legal standard
2 (...continued) (2) Promoting a dangerous drug in the third degree is a class C felony. 3 HRS § 702-236 provides, in part:
§ 702-236 De minimis infractions. (1) 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: (a) Was within a customary license or tolerance, which was not expressly refused by the person (continued...)
2 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
because it failed to examine whether the possession of 0.003
grams of a substance containing cocaine "did not actually cause
or threaten the harm or evil sought to be prevented by the law
defining the offense or did so only to an extent too trivial to
warrant the condemnation of conviction."
In State v. Melendez, 146 Hawai#i 391, 395-97, 463 P.3d
1048, 1052-54 (2020), the Hawai#i Supreme Court recently
reiterated that a defendant need not prove that possessed drugs
are incapable of producing any pharmacological or physical effect, stating, inter alia: This court has thus consistently held over the past forty years that when the amount of drugs possessed is unusable, the violation of HRS § 712-1243 does not cause or threaten the harm or evil sought to be prevented by the law defining the offense, and a de minimis dismissal would be warranted in such circumstances. Although we have declined to read a usable quantity standard into HRS § 712-1243, it is clear that if the amount possessed is so minuscule that it cannot be used in such a way as to have any discernible effect on the human body, it follows that the drug cannot lead to abuse, social harm, or property and violent crimes, i.e., the harm sought to be prevented by HRS § 712-1243. Under such circumstances, dismissal under HRS § 702-236 is warranted. Hence, . . . a defendant's burden on a de minimis motion for an HRS § 712-1243 violation is not to specifically prove that the drugs possessed could not have a pharmacological or physiological effect, but to place all of the relevant attendant circumstances before the trial court to establish why dismissal is warranted in light of those circumstances. When the defendant proves the amount of drugs possessed is incapable of producing a pharmacological effect, it is clear the amount is not usable or saleable. In such cases, in the absence of other circumstances indicating the violation actually threatened the harm sought
3 (...continued) whose interest was infringed and which is not inconsistent with the purpose of the law defining the offense; or (b) Did not actually cause or threaten the harm or evil sought to be prevented by the law defining the offense or did so only to an extent too trivial to warrant the condemnation of conviction; or (c) Presents such other extenuations that it cannot reasonably be regarded as envisaged by the legislature in forbidding the offense.
3 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
to be prevented by HRS § 712-1243, de minimis dismissal will be warranted. But proving that the possessed drugs could not have a pharmacological effect is not a condition precedent for de minimis dismissal of a possessory drug violation. Our decisions firmly establish that if the amount of drugs possessed is not usable or saleable, the violation does not engender the harms sought to be prevented by HRS § 712-1243 absent demonstrable evidence to the contrary. In sum, if the possessed drugs are neither usable nor saleable, and the attendant circumstances do not otherwise demonstrate the defendant's violation caused the harm HRS § 712-1243 seeks to prevent, de minimis dismissal is warranted.
Id. at 396-97, 463 P.3d at 1053-54 (emphasis added; citations,
internal quotation marks, and original ellipsis omitted).
Here, in its COLs, the Circuit Court acknowledged that
John was asserting the 0.003 grams of a substance, containing
cocaine, was a de minimis amount that was neither usable nor
saleable. Nevertheless, the Circuit Court did not conclude, one
way or the other, whether the amount of drugs possessed was
usable or saleable, as discussed in Melendez. Instead, the
Circuit Court concluded, inter alia, that: (1) John "has not
provided any evidence of the individualized variables about him
that would enable the court to determine whether the amount of
cocaine in this case was sufficient to produce a pharmacological
action or physiological effect;" and (2) John "was in possession
of 0.003 grams of a substance containing cocaine which was both
visible and capable of analysis." While the Circuit Circuit's
COLs were in part reflective of the legal standards set out in
Melendez and the cases it followed, "visible and capable of
analysis" is not a standard comparable to "usable and saleable,"
and the supreme court expressly stated that "proving that the
possessed drugs could not have a pharmacological effect is not a
4 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
condition precedent for de minimis dismissal of a possessory drug
violation." Melendez, 146 Hawai#i at 397, 463 P.3d at 1054.
Unlike in Melendez, where in the same courthouse, for a
hearing held two months earlier than the hearing in this case,
the State stipulated that 0.005 grams of a substance containing
cocaine was not usable and saleable,4 here there is no
stipulation that 0.003 grams of a substance containing cocaine –
which the expert witness described as barely visible, "like a
spec of -- more than a spec of dust, a couple of particles maybe" – is not usable and saleable. We nevertheless conclude
that the Circuit Court erred in not reaching the conclusion that
the 0.003 grams of substance possessed by John was not usable and
saleable, based on the record in this case and the case law in
this jurisdiction.
As firmly held in Melendez, "if the amount of drugs
possessed is not usable or saleable, the violation does not
engender the harms sought to be prevented by HRS § 712-1243
absent demonstrable evidence to the contrary." Id. (citations
omitted). Here, the attendant circumstances of this incident
included John having shoplifted two cans of Libby's Vienna
Sausage and a multipack of Spam, with a total value of $11.37.5
While theft at any level constitutes criminal conduct and a
property crime, theft of roughly eleven dollars worth of canned
meat appears equally indicative of poverty, hunger and/or
4 Melendez, 146 Hawai#i at 397, 463 P.3d at 1054. 5 John also had no form of identification and identified himself to the arresting officer as Wellison Sighra.
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homelessness. We recognize that criminality and substance abuse
may in some instances be associated with these conditions as
well, but we nevertheless conclude that none of the attendant
circumstances in this case undermine a conclusion that John's
possession of an unusable and unsaleable amount of cocaine did
not threaten or cause the harm sought to be prevented by HRS
§ 712-1243. See generally Melendez, 146 Hawai#i at 398, 463 P.3d
at 1055. Accordingly, we conclude that the Circuit Court abused
its discretion in failing to determine that John's possession of 0.003 grams of a substance containing cocaine constituted a de
minimis infraction pursuant to HRS § 702-236.
For these reasons, the Circuit Court's November 28,
2018 Judgment is vacated in part, as to Count 1, and affirmed in
part, as to Count 2. This case is remanded to the Circuit Court
for further proceedings.
DATED: Honolulu, Hawai#i, December 28, 2020.
On the briefs: /s/ Lisa M. Ginoza Dana S. Ishibashi, Chief Judge for Defendant-Appellant. /s/ Katherine G. Leonard Stephen K. Tsushima, Associate Judge Deputy Prosecuting Attorney, City and County of Honolulu, /s/ Keith K. Hiraoka for Plaintiff-Appellee. Associate Judge