State v. Hironaka

• Decision Date: 06 September 2002
• Docket Number: No. 24116.,24116.
• Citation: 99 Haw. 198,53 P.3d 806
• Parties: STATE of Hawai`i, Plaintiff-Appellee, v. Leonard Denichi HIRONAKA, Defendant-Appellant.
• Court: Hawaii Supreme Court

53 P.3d 806

99 Haw. 198

STATE of Hawai`i, Plaintiff-Appellee, v. Leonard Denichi HIRONAKA, Defendant-Appellant.

No. 24116.

Supreme Court of Hawaii.

September 6, 2002.

Joyce K. Matsumori-Hoshijo, Deputy Public Defender, on the briefs, for the defendant-appellant, Leonard Denichi Hironaka.

Bryan K. Sano, Deputy Prosecuting Attorney, on the briefs, for the plaintiff-appellee, State of Hawai`i.

MOON, C.J., LEVINSON, and NAKAYAMA, JJ.; RAMIL, J., dissenting; and ACOBA, J., concurring separately.

Opinion of the Court by LEVINSON, J.

The defendant-appellant, Leonard Denichi Hironaka, appeals from the judgment of conviction and sentence of the first circuit court, the Honorable Marie N. Milks presiding, finding him guilty of promoting a dangerous drug in the third degree in violation of Hawai`i Revised Statutes (HRS) § 712-1243 (1993 & Supp.2000).<sup>1</sup> Hironaka argues that the circuit court erred in: (1) failing to instruct the jury that (a) "`possession' means conscious and substantial possession, not a mere involuntary or superficial possession and much more than a passing control, fleeting and shadowy in nature," (b) "mere proximity to an object, mere association with a person who does control an object, without more, is insufficient to support a finding of possession," and (c) all twelve jurors must unanimously agree that Hironaka either (i) had actual possession or (ii) had constructive possession of the methamphetamine; and (2) denying Hironaka's motion to dismiss on the grounds that the offense was de minimis under HRS § 702-236(1) (1993).²

For the reasons discussed infra in section III, we hold that Hironaka's claims are without merit and, accordingly, affirm the circuit court's judgment and sentence.

I. BACKGROUND

On the morning of August 25, 2000, Honolulu Police Department (HPD) Officers Scott Viera and Howard Lestrong were patrolling the Wai`anae area beaches when they saw a white van parked on the side of the road by Dolphin Beach. The van attracted their attention because the sliding door on the passenger's side of the vehicle was open and some items—including spare tires, fishing poles, and a disassembled tent—"appeared to be hanging out of the door." Suspecting that the vehicle had either been broken into or stolen and abandoned, Officer Viera investigated, walking alongside the vehicle, whereupon he noticed a glass pipe on the passenger's seat. Officer Lestrong followed Officer Viera and also observed the glass pipe, as well as a white coating on the bulbous end of the pipe. Based on his training and experience, Officer Lestrong suspected that the discolored residue in the pipe was methamphetamine. Officer Viera then looked into the open door of the vehicle and observed Hironaka sleeping in the rear of the van. Officer Viera identified himself as a police officer and asked Hironaka to step out of the vehicle. At first, Hironka did not respond, but after a second request, he awoke, startled. Officer Viera asked him who he was and then explained to Hironaka that he was going to be arrested in connection with the glass pipe on the passenger seat. Hironaka told Officer Viera that the pipe was not his, but to no avail.

After arresting Hironaka, Officer Viera recovered the glass pipe and dusted it for fingerprints. Latent prints detected on the pipe matched Hironaka's known fingerprints. Laboratory tests of the residue in the glass pipe determined that it weighed 0.044 gram and that it contained methamphetamine.

On September 5, 2000, Hironaka was charged with promoting a dangerous drug in the third degree, in violation of HRS § 712-1243, see supra note 1, and unlawful use of drug paraphernalia, in violation of HRS § 329-43(a) (1993).³

At trial, Hironaka testified that early in the morning of August 25, 2000, he went on a fishing trip to Makua Beach with his brother and three friends. Hironaka's brother Kevin drove the two of them in his car, their friend Frankie drove his truck, and their friend Mike drove his white van. They parked alongside the beach where they set up a tent and fishing equipment. Hironaka and his friends then gathered inside the tent, where his friends smoked "crystal meth" from a glass pipe while Hironaka rolled a marijuana "joint." Hironaka testified that he did not smoke any methamphetamine from the pipe. Rather, after he finished rolling two joints, Hironaka exited the tent, lit one of the joints, smoked it, and passed it around. They spent the rest of the morning catching bait and fishing.

Sometime after 6:30 a.m., the group loaded the fish they had caught into a cooler. Hironaka's friends then left to buy ice for the fish and food for breakfast, while Hironaka agreed to stay behind and watch their campsite. Hironaka's brother left for work. Hironaka soon became tired and decided to take a nap in Mike's van. Hironaka removed some tires from the van to make some space, disassembled the tent, stuffed most of his friends' belongings inside, and then dragged the tent to the van. He then attempted to throw the tent with all of its contents into the van, but the contents, including the glass pipe that his friends had used earlier to smoke the methamphetamine, fell out of the tent and onto the ground. Hironaka picked up the pipe and tried to throw it onto the front passenger seat of the van, but it bounced off the back of the seat and onto the floor. He then picked up the pipe a second time and placed it on the front passenger seat. He testified at trial that he placed the pipe on the seat so that his friends would see it when they returned and not wake him up from his nap. Hironaka further testified that each time he picked up the pipe he held it for approximately one to two seconds and did not notice whether there was anything in it. He acknowledged, however, that he could have discarded the pipe in a rubbish can, but did not. After placing the pipe on the passenger's seat, Hironaka ate a sandwich in the back of the van and fell asleep. Sometime later, he awoke to the static of a police officer's radio.

After the prosecution presented its case at trial, Hironaka moved for a judgment of acquittal as to both counts, arguing, with respect to the drug paraphernalia charge, that the prosecution had adduced insufficient evidence that he had used or intended to use the pipe and, with respect to the drug possession charge, that any violation was, in any event, de minimis, based on the small amount of methamphetamine in the glass pipe. The circuit court denied Hironaka's motion.

During settling jury instructions, the circuit court refused, over Hironaka's objection, to give three of his proposed jury instructions. First, the circuit court struck a sentence from Hironaka's Proposed Jury Instruction No. 3, which stated, "Mere proximity to an object, mere presence or mere association with a person who does control an object, without more, is insufficient to support a finding of possession." The circuit court stated that Hironaka could argue this to the jury, but "for the Court to [so] instruct would be to comment on the evidence[,]" and remarked that it did not "read either [State v.] Jenkins [, 93 Hawai`i 87, 997 P.2d 13 (2000),] or [State v.] Mundell [, 8 Haw.App. 610, 822 P.2d 23 (1991),] to require the giving of that instruction." Second, the circuit court refused to give Hironaka's Proposed Jury Instruction No. 7, which stated, inter alia, that "`possession' means conscious and substantial possession, not a mere involuntary or superficial possession and much more than a passing control, fleeting and shadowy in nature." Similarly, the court stated that "[t]o give this instruction would be to unduly highlight one aspect and would be redundant and repetitious." Finally, the circuit court refused to give Hironaka's Proposed Jury Instruction No. 8, a specific unanimity instruction that "all twelve jurors must agree that the knowing possession of a dangerous drug ... is based upon the same substance and the same act of possession, or the possession with the intent to use drug paraphernalia ... is based upon the same item and the same act of possession."⁴ During the circuit court's hearing on the unanimity instruction, the prosecution assured the court that it was "arguing one continuous act of possession and whether you have an item in your hand or put it down, whether it's actual or constructive, it still can be one continuous act of possession. The State is going to be arguing that there was no termination of the possession of this item." The circuit court then stated, "There are no two acts or two types of conduct for which the jury has to discreetly determine the conduct. Possession is either actual or constructive. It's in the alternate disjunctive and the Court finds no necessity to give an Ar[c]eo instruction."

The circuit court subsequently instructed the jury on possession as follows:

A person is in possession of an object if the person knowingly procured or received the thing possessed or was aware of his control of it for a sufficient period of time to have terminated his possession.

The law recognizes two kinds of possession: actual and constructive possession.

A person who knowingly has direct physical control over a thing, at a given time, is then in actual possession of it.

A person who, although not in actual possession, knowingly has both the power and the intention, at a given time, to exercise dominion or control over a thing for a sufficient period to have terminated his possession, either directly or through another person or persons is then in constructive possession of it.

The element of possession has been proved if you find beyond a reasonable doubt that the defendant had actual or constructive possession.

During closing argument, after reiterating the foregoing instruction, the prosecution argued in relevant part:

Now the defendant had—was the only one there, by his own statement, from seven o'clock in the morning till 10:30 when the police officers

...