State Of Haw.‘i v. Rapozo

Decision Date29 July 2010
Docket NumberNo. 29215.,29215.
Citation123 Hawai'i 329,235 P.3d 325
PartiesSTATE of Hawai‘i, Respondent/Plaintiff-Appellant,v.Tanya RAPOZO, aka Tanya Rapoza, Petitioner/Defendant-Appellee.
CourtHawaii Supreme Court

Brian R. Vincent, Deputy Prosecuting Attorney, for respondent/plaintiff-appellant.

Alvin K. Nishimura, Honolulu, for petitioner/defendant-appellee.

MOON, C.J., NAKAYAMA, and RECKTENWALD, JJ.; and ACOBA, J., dissenting, with whom DUFFY, J., joins.

Opinion of the Court by RECKTENWALD, J.

In the early morning of September 19, 2006, Petitioner/ Defendant-Appellee Tanya Rapozo, a.k.a. Tanya Rapoza was stopped by police for driving erratically on Ala Wai Boulevard in Waikiki. She was subsequently placed under arrest and transported to the Honolulu Police Department's main station, where she was searched. During that search, a police matron discovered a .38 caliber bullet inside Rapozo's brassiere. The bullet was later tested and determined to be operable.

Rapozo, who was a convicted felon, was charged with Ownership or Possession Prohibited of Any Firearm or Ammunition By a Person Convicted of Certain Crimes in violation of Hawai‘i Revised Statutes (HRS) § 134-7(b) and (h) (Supp.2007), cited infra. Rapozo filed a motion to dismiss that charge as a de minimis infraction within the meaning of HRS § 702-236 (1993).1 In support of her motion, Rapozo submitted a declaration of counsel which asserted that her explanation for possessing the bullet was that she was going to have it made into a charm for a bracelet.” The Circuit Court of the First Circuit granted the motion.2 However, the Intermediate Court of Appeals vacated the dismissal, and Rapozo timely filed an application for a writ of certiorari with this court.

In her application, Rapozo raises the following question:

Whether the ICA gravely erred in concluding that the trial court abused its discretion in dismissing the case under H.R.S. 702-236 the de minimus statute.

We have recognized previously that it is the defendant's burden to place “all” of the relevant attendant circumstances before the trial court, and to establish why dismissal is warranted in light of those circumstances. See, e.g., State v. Park, 55 Haw. 610, 616, 525 P.2d 586, 591 (1974); State v. Viernes, 92 Hawai‘i 130, 134, 988 P.2d 195, 199 (1999) (quoting State v. Vance, 61 Haw. 291, 307, 602 P.2d 933, 944 (1979)). The only evidence offered by Rapozo in support of her motion was the declaration of her counsel, which omitted many of the relevant attendant circumstances. We therefore conclude that Rapozo failed to carry her burden of establishing that her conduct was de minimis within the meaning of HRS § 702-236. However, as we set forth below, we do not preclude the possibility that Rapozo could carry that burden at a later stage of the proceedings in the event a more fully developed record supports dismissal. See infra note 16.

Accordingly, we affirm the judgment of the ICA.

I. Background

A. Factual and Procedural Background

On April 24, 2007, Rapozo was charged in an indictment with Ownership or Possession Prohibited of Any Firearm or Ammunition By a Person Convicted of Certain Crimes in violation of HRS § 134-7(b) and (h) 3 (count i), and driving without a license in violation of HRS § 286-102 (Count II).

On February 26, 2008, Rapozo filed a motion to dismiss Count I of the indictment as de minimis within the meaning of HRS § 702-236. Rapozo also submitted a Declaration of Counsel (declaration) and a memorandum in support of the motion. Rapozo's counsel declared, in relevant part, as follows:

...
2. The allegations in this matter are as follows:
a) At approximately 1:14 a.m. on September 19, 2006, Ms. Rapozo was driving a white pickup truck on Ala Wai Boulevard in the City and County of Honolulu, State of Hawaii, when she was pulled over by Honolulu police officer Jason Pistor for driving erratically.
b) After making the stop, Officer Pistor examined the VIN number on the pickup truck and radioed that number to HPD dispatcher.
c) Dispatch found that the VIN number belong [sic] to another vehicle and notified Officer Pistor of that fact.
d) Officer Pistor then placed the defendant under arrest for driving under the influence and without a valid driver's license and took her to the Central Processing Division at the main station.
3. At approximately 2:30 a.m. Ms. Rapozo was given a pat down search by Police Matron Laura Chin [sic] who felt something hard in defendant's brassrere [sic].
4. Matron Chun escorted Ms. Rapozo into the holding cell to conduct a more extensive search and found a single .38 caliber bullet in the left cup of defendant's bra.
5. Ms. Rapozo's explanation for having the bullet in her possession was that she was going to have it made into a charm for a bracelet.
6. No gun was found by either Matron Chun or police officer Pistor, nor was any other ammunition, drugs or other contraband found in defendant's possession or control.
...

Rapozo argued that “under the relevant circumstances, the finding of a single 38 caliber bullet in her bra did not actually cause or threaten the harm sought to be prevented or did so only to the extent too trivial to warrant the condemnation of conviction.”

On March 3, 2008, the State filed a memorandum in opposition to Rapozo's motion to dismiss. In its memorandum, the State recited facts which were similar to those recited by Rapozo's counsel, but with some additional detail. The State's memorandum asserted that, at the time of the traffic stop, Rapozo's “eyes were red and bloodshot,” she “made statements and questions that did not make any sense,” and “her behavior was bizarre to police officers.” The State's memorandum also stated that [Rapozo] had previously been convicted of Unauthorized Control of Propelled Vehicle, Promoting a Dangerous Drug in the Third Degree and Theft in the Second Degree.”

The State argued that the “direct and unambiguous language” of HRS § 134-7(b) clearly prohibits a felon from owning, possessing or controlling any firearm or ammunition. The State further argued that applying the de minimis provision to a single bullet, as Rapozo advocated, would render the statute's prohibition against the possession of “any” ammunition superfluous. Moreover, the State noted that, at the time the bullet was recovered, Rapozo was in custody in the main police station holding facility, and Rapozo made no effort to turn the bullet over to police officers. The State argued that, although Rapozo was not found in possession of a gun or other firing device, the possession of a single bullet was not de minimis because [a] bullet can be fired from a simple device that can be obtained/made by any one. For example, any home made gun such as a ‘zip gun,’ typically made by prisoners can fire a ‘bullet’ and cause the same harm.”

The circuit court held a hearing on May 7, 2008. At the start of the hearing, the circuit court asked Rapozo's counsel whether he wished to argue the motion, and stated, “I've read over the motions. I'll take judicial notice.” Neither the State nor Rapozo's counsel voiced any objection.

Rapozo's counsel argued the motion, but Rapozo did not testify at the hearing, nor did she present any other evidence. Rapozo's counsel argued that “the question raised by this motion [is] ... whether or not a possession of a single bullet in her bra, without the ability to fire it, violates the purpose of HRS [§ ] 134-7(b).” Rapozo's counsel further argued that:

Under the facts of this case, a single bullet hidden in the Defendant's bra that could not be used to harm anyone doesn't really violate the purpose of the statute; nor does it create the danger that the statute was designed to prevent.
I think the Court should look at the attendant circumstances of this case and not fantasize about the presence of a gun, if the State intends to muddy the water by raising this specter of an imaginary Zip gun. There was no .38 caliber pistol, no Zip gun, or any other mechanism present at the time capable of firing that bullet.

After Rapozo's counsel concluded his argument, the circuit court addressed the Deputy Prosecuting Attorney (DPA) and stated:

Miss Ikeda, I also thoroughly understand what you said [in the State's memorandum in opposition to Rapozo's motion]. A bullet is a bullet. She's a felon, and that a felon should not get anywhere near a bullet or a piece of ammunition. It could have been smuggled into the facility and then you put a picture of a so-called Zip gun or whatever.

The circuit court then questioned the DPA concerning two photographs of homemade zip guns that were attached to the State's memorandum. The circuit court then asked the DPA whether she wished to add or emphasize anything for the record. The DPA declined, stating [n]o, Your Honor. I believe it's all stated in my motion.”

The circuit court did not rule at the hearing, and took the matter under advisement. On June 3, 2008, the circuit court filed its Order Granting Defendant's Motion to Dismiss Count I of Felony Indictment with Prejudice, which contained its Findings of Fact and Conclusions of Law (FOF/COL).

The circuit court's relevant FOFs/COLs were as follows:

FINDINGS OF FACT

1. At approximately 1:14 a.m. on September 19, 2006, Tanaya [sic] Rapozo was driving a white pickup truck on Ala Wai Boulevard in the City and County of Honolulu, State of Hawaii, when she was pulled over by Honolulu Police Officer Jason Pistor for driving erratically.
...
3. Officer Pistor then placed the defendant under arrest for driving under the influence and without a driver's license and took her to the Central Processing Desk of the main police station.
4. At approximately 2:30 a.m. Ms. Rapozo was given a pat down search by police matron Laura Chun who felt something hard in defendant's brassiere.
5. Matron Chun escorted Ms. Rapozo into the holding cell to conduct a more extensive preincarceration search and found a single .38 caliber operable bullet in the left cup of defendant's bra.
6. Ms. Rapozo's
...

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