State v. Fagaragan

• Decision Date: 10 September 2007
• Docket Number: No. 27938.,27938.
• Citation: 167 P.3d 739
• Parties: STATE of Hawai`i, Plaintiff-Appellee, v. Erwin E. FAGARAGAN, Defendant-Appellant.
• Court: Hawaii Court of Appeals

167 P.3d 739

STATE of Hawai`i, Plaintiff-Appellee, v. Erwin E. FAGARAGAN, Defendant-Appellant.

No. 27938.

Intermediate Court of Appeals of Hawai`i.

September 10, 2007.

Earle A. Partington, on the briefs, Honolulu, for Defendant-Appellant.

Peter A. Hanano, First Deputy Prosecuting Attorney, County of Maui, on the briefs, for Plaintiff-Appellee.

RECKTENWALD, C.J., WATANABE and NAKAMURA, JJ.

Opinion of the Court by RECKTENWALD, C.J.

On May 18, 2003, Defendant-Appellant Erwin E. Fagaragan (Fagaragan) was stopped by Maui police while driving his car. Officers found $8,649.00 in the pockets of Fagaragan's pants, and later recovered a bag from the car that contained approximately 5.46 ounces of methamphetamine in 34 plastic packets, a digital scale and a pipe. Fagaragan was charged with: (1) Promoting a Dangerous Drug in the First Degree, in violation of Hawaii Revised Statutes (HRS) § 712-1241(1)(a)(i) (2003 Supp.) (Count One),¹ (2) Attempted Promoting a Dangerous Drug in the First Degree, in violation of HRS §§ 705-500 and 712-1241(1)(b)(ii)(A) (2003 Supp.) (Count Two),² and (3) Prohibited Acts Related to Drug Paraphernalia, in violation of HRS § 329-43.5 (1993) (Count Three).³ The case was tried to a jury, which found Fagaragan guilty on all three counts. The Circuit Court of the Second Circuit (circuit court) entered judgment on those counts and sentenced Fagaragan to incarceration for two terms of twenty years (Counts One and Two), and one term of five years (Count Three), to run concurrently.⁴ Fagaragan now appeals from the Judgement of Conviction and Sentence filed by the circuit court on April 19, 2006.

Fagaragan raises two main points. First, he argues that Counts One and Three merged into Count Two as a matter of law. Fagaragan contends that merger was required both by statute, HRS §§ 701-109(1)(a), (1)(e), and (4),⁵ as well as by the double jeopardy clauses of the United States and Hawai`i constitutions. Thus, he contends that the circuit court committed plain error in entering judgment on Counts One and Three. Second, Fagaragan asserts that the circuit court committed plain error by omitting the mens rea element for an attendant circumstance in its jury instructions on Count Two. In the alternative, he argues that the circuit court plainly erred in failing to instruct the jury to determine whether Counts One and Three merged into Count Two.

Therefore, Fagaragan contends that since Counts One and Three merged into Count Two, for which the circuit court erred in its instructions, this court should vacate all of his convictions and remand for a new trial as to only Count Two. Alternatively, Fagaragan argues that we should remand for a new trial on all three counts, with the jury being instructed to determine whether Counts One and Three merged into Count Two. Fagaragan concedes that he failed to object at trial to any of the points that he now raises on appeal.

We hold that the legislature did not intend for multiple punishments to be imposed in cases involving possession and attempted distribution under HRS § 712-1241, where the convictions rest on evidence of possession by a defendant of the same drugs at the same moment in time. Accordingly, for the reasons set forth below, we affirm Fagaragan's convictions on Counts One and Three and reverse his conviction on Count Two.

BACKGROUND

Fagaragan's jury trial began with Maui Police Department (MPD) Officer Samuel Ah Loo (Officer Ah Loo) testifying for the State. Officer Ah Loo related that while on routine patrol in the early evening of May 18, 2003, he noticed a man sitting in a parked car at the corner of Pau Hana and Makani Roads. "[H]e kind of looked at me for a few seconds and turned away from me real quick, and [sic] which kind of made me suspicious of him." Officer Ah Loo called in the vehicle's plates and learned that a bench warrant had been issued for Erwin E. Fagaragan, the registered owner of the car.

Officer Ah Loo turned his car around and headed back, but passed Fagaragan, who was now driving in the opposite direction with a female passenger. He radioed for additional units and pursued Fagaragan's car.

By the time Officer Ah Loo caught up to Fagaragan's vehicle, MPD Officer Bruno Manibog (Officer Manibog) had already pulled Fagaragan over on Makani Road in front of a chicken farm. After verifying Fagaragan's identity, Officer Ah Loo arrested Fagaragan on the bench warrant. Both Officers Manibog and Ah Loo patted down Fagaragan and discovered two bundles of money in the pockets of his pants amounting to $8,649.00. During all of this, Fagaragan appeared "very nervous and fidgety," as though he was "trying to hide something." Based on this behavior, Officer Ah Loo called his lieutenant and "requested a K-9 sniff."

Shortly thereafter, MPD Officer Mike Victorine (Officer Victorine) and his police dog, Timbo, arrived. After determining that they "had enough to utilize the dog[,]" Officer Victorine had Timbo perform a sniff search of the outside of Fagaragan's vehicle. Starting at the headlight on the passenger's side, they walked around the car. Upon reaching the headlight on the driver's side, Timbo gave what Officer Victorine described as an "initial alert." Timbo then moved to door on the driver's side and sat, indicating the presence of narcotics. Officer Victorine stated that neither he, the other officers, nor the dog entered the car.

Thereafter, Timbo sniffed the money found in Fagaragan's pockets and alerted to the presence of narcotics. The car was towed to the MPD bulk storage area, where it was secured, and Fagaragan was transported to Wailuku police station.

The next day, Officer Victorine obtained a search warrant for Fagaragan's car and discovered a black and green bag between the driver's and passenger's seats. Inside the bag:

[W]e located 26 black clear and not clear blue zip-lock packets, all containing crystal methamphetamine.

We located a glass vial which is commonly used to smoke methamphetamine. We also located in that bag another black bag, and in that bag containing [sic] another eight clear and not clear blue zip-lock bags, all containing suspected crystal methamphetamine. We recovered a digital scale. We recovered Verizon [sic] phone bill to [sic] Mary Ann Fagaragan after so that [sic] phone bill had $180 attached to it, was $180 in cash, and some other items of paraphernalia.⁶

Officer Victorine then performed field tests on each of the 34 packets, which all resulted in a "positive chemical color reaction indicating the presence of methamphetamine[.]"

After Jonie Chong Kee, the MPD records manager, testified as to the chain of custody of the evidence, Julie Wood (Wood), an MPD criminalist, stated that she performed a chemical analysis on the contents of the packets which returned a positive result for methamphetamine. Furthermore, Wood testified that the total weight of the substances was 154.909 grams and that there are 28.35 grams in one ounce (thus resulting in a total of approximately 5.46 ounces of methamphetamine).

Thereafter, the State rested and defense counsel moved for judgment of acquittal on two separate bases: (1) that there was insufficient evidence as to the chain of custody of the car, and (2) that there was "insufficient evidence to establish that this was an attempted distribution under Count Two, Attempted Promoting a Dangerous Drug in the First Degree[.]" Both motions were denied by the circuit court.

Lawrence Verzosa (Verzosa) testified first for the defense. Verzosa, an acquaintance of Fagaragan, testified that he was at the farm across the street with Robert Recopuerto (Robert) and Leonard Recopuerto (Leonard) when they heard sirens. Verzosa stated that he saw Fagaragan handcuffed and seated on the grass during the K-9 search and that police allowed the dog to jump into Fagaragan's car. Leonard and Robert also testified that they had seen the police dog enter the car and one of the officers take something out of the vehicle.

After the defense rested, the State began its closing by arguing that the $8,649.00, which had "the scent of drugs on it[,]" as well as the drugs themselves, amounted to evidence that Fagaragan had recently "sold a lot of methamphetamine." Turning to Count One, the State argued that it had proven its case based on the fact that almost 5.5 ounces of methamphetamine was found in the black and green bag, which was found next to where Fagaragan was seated and which also contained a phone bill for Fagaragan's residence. As to the attempted distribution charge of Count Two, the State explained, "[s]o we've got 34 packets of meth plus a lot of cash, plus a scale and that equals distribution or attempted distribution. . . . Nobody but a dealer would possess that much methamphetamine." Finally, in discussing Count Three, the State argued "[y]ou look at the pipe. There's residue in the bottom. You can tell somebody smoked methamphetamine in this pipe." The State also argued that the 34 packets were paraphernalia because they contained methamphetamine, and the scales were paraphernalia because they were used to weigh methamphetamine.

The jury found Fagaragan guilty on all three counts.

STANDARDS OF REVIEW

I. Plain Error

"Normally, an issue not preserved at trial is deemed to be waived." State v Miyazaki, 64 Haw. 611, 616, 645 P.2d 1340, 1344 (1982). "But where plain errors were committed and substantial rights were affected thereby, the errors `may be noticed although they were not brought to the attention of the [trial] court.'" State v. Fox, 70 Haw. 46, 55, 760 P.2d 670, 675 (1988)(citing to Hawai`i Rules of Penal Procedure (HRPP) Rule 52(b)).

II. Confession of Error

When the prosecution concedes error, it is incumbent on the appellate court first to ascertain that the confession of error is supported by the record and well-founded in law and second to determine that such error is properly preserved and prejudicial. In other words, a confession of error by ...