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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of Hawaii Revised Statutes (HRS) § 712-1243 (2014) (Count 1),2 and Theft in the Fourth Degree, in violation of HRS NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER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).

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 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 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

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