State v. Kealoha, 22384.

• Decision Date: 17 May 2000
• Docket Number: No. 22384.,22384.
• Citation: 22 P.3d 1012,95 Haw. 365
• Parties: STATE of Hawai`i, Plaintiff-Appellee, v. Geraldine KEALOHA, Defendant-Appellant, and William Kailianu Kealoha, Jr. and Bridgette B. McCrocklin, Defendants.
• Court: Hawaii Court of Appeals

22 P.3d 1012

95 Haw. 365

STATE of Hawai`i, Plaintiff-Appellee, v. Geraldine KEALOHA, Defendant-Appellant, and William Kailianu Kealoha, Jr. and Bridgette B. McCrocklin, Defendants.

No. 22384.

Intermediate Court of Appeals of Hawaii.

May 17, 2000.

Certiorari Granted June 23, 2000.

Glenn D. Choy, on the briefs, Honolulu, for defendant-appellant.

Donn Fudo, Deputy Prosecuting Attorney, City and County of Honolulu, on the briefs, for plaintiff-appellee.

BURNS, C.J., ACOBA, and LIM, JJ.

Opinion of the Court by ACOBA, J.

We hold that, under the facts of this case, the acts of Defendant-Appellant Geraldine Kealoha (Defendant) in allegedly manufacturing methamphetamine in violation of Hawai`i Revised Statutes (HRS) § 712-1241(1)(d) (Supp.1999), Promoting a Dangerous Drug in the First Degree, constituted a single continuous offense and not "separate and distinct culpable acts." Thus, there was no requirement that the prosecution elect a specific act to establish the "conduct" element of the manufacturing charge or that the first circuit court (the court) give the jury a specific unanimity instruction, under the rule established in State v. Arceo, 84 Hawai`i 1, 33, 928 P.2d 843, 875 (1996).

We conclude also that Defendant's motion for judgment of acquittal was properly denied and there was substantial evidence to support her conviction on the manufacturing charge. As to Defendant's final contention, we conclude further that the court did not abuse its discretion in denying Defendant's motion in limine to exclude evidence that Defendant sold methamphetamine to finance her cocaine habit.

Accordingly, we affirm the March 1, 1999 judgment and sentence rendered by the court against Defendant.

I.

On September 29, 1998, an indictment for drug-related offenses was issued against Defendant. Counts I and II of the indictment charged her with possession of cocaine and methamphetamine, respectively, in violation of HRS § 712-1241(1)(a)(i),¹ Promoting a Dangerous Drug in the First Degree. Count III charged her with "use or possession with intent to use drug paraphernalia ... [to] introduce into the human body a controlled substance" in violation of HRS § 329-43.5(a) (1993),² Unlawful Use of Drug Paraphernalia. Count IV charged her with "knowingly manufactur[ing] the dangerous drug, methamphetamine" in violation of HRS § 712-1241(1)(d),³ Promoting a Dangerous Drug in the First Degree. William Kailianu Kealoha, Jr. (Junior) and Bridgette B. McCrocklin (McCrocklin) were co-defendants in the instant case and were also charged in Count IV with the same violation of HRS § 712-1241(1)(d). Additionally, Junior and McCrocklin were charged in Count V with possession of methamphetamine in violation of HRS § 712-1243 (Supp.1998), Promoting a Dangerous Drug in the Third Degree, and in Count VI with Unlawful Use of Drug Paraphernalia, HRS § 329-43.5(a). Defendant's appeal pertains to her conviction on Count IV.

II.

A.

On November 25, 1998, prior to the jury trial herein, McCrocklin entered into a plea agreement with Plaintiff-Appellee State of Hawai`i (the State) and pled guilty to amended charges.⁴ Jury trial for Defendant and Junior began on December 22, 1998. Pursuant to the terms of the plea agreement, McCrocklin testified at trial. Following the trial, Defendant was found guilty as charged on all four counts. Junior was found guilty on Counts V and VI, however, the court granted his motion for judgment of acquittal on Count IV. Defendant filed a notice of appeal on March 29, 1999.

B.

On December 18, 1998, preceding jury selection and trial, the court entertained several motions in limine, two of which were filed by Defendant. Defendant's motion in limine number one (motion No. 1) sought to exclude, among other things, "[t]estimonial or documentary evidence relating to the [D]efendant's prior criminal records," as well as "[t]estimonial or document[ary] evidence relating to any other bad acts involving the [D]efendant[,]" such as Defendant's purported manufacturing of cocaine and use of cocaine.⁵ (internal quotation marks omitted). In addressing motion No. 1, the court permitted "testimony regarding [D]efendant's alleged involvement in the manufacture of cocaine only to be considered by the jury as proof of a motive and opportunity or intent to possess." The court further indicated it would "give a limiting instruction to that effect."

Defendant's motion in limine number two (motion No. 2) sought the exclusion of McCrocklin's expected testimony "that [Defendant] was selling methamphetamine to finance her cocaine habit." The court issued the same ruling on motion No. 2 as it had on motion No. 1.⁶

Junior also filed a motion in limine primarily aimed at excluding (1) a search warrant affidavit attesting that he sold methamphetamine twice to a confidential informant and (2) "[t]estimony of [McCrocklin] relating to [Junior] selling illegal drugs." Defendant sought to introduce the same affidavit to show that Junior had "a motive to manufacture methamphetamine." The court denied Defendant's request and thus excluded testimony related to Junior's sales to the informant.⁷ However, the court indicated it would allow McCrocklin to testify that Junior was selling illegal drugs because it was probative of "whether [Junior] has a motive, opportunity, or intent to possess or manufacture."⁸

C.

The following evidence was adduced during trial. On June 12, 1998, Honolulu Police Department (HPD) Officer Jonathan Murray (Officer Murray) "obtained a search warrant to search the premises at 87-1029C Hakimo Road." At approximately 6:07 a.m. on June 13, 1998, the search team approached the residence, made entry, and secured the premises.

Once the six adults and two children found in the residence were segregated in one area, Officer Murray served William Kealoha, Sr. (Kealoha, Sr.) and Junior each with a copy of the search warrant. In their search, the police found "[c]ertain items ... in [a bedroom designated as] bedroom three [(in a trial exhibit)] and in the kitchen area that led [them] to believe [that] there was the possibility of a clandestine [drug] lab in the residence."⁹ Upon this discovery, the residence was evacuated and Detective Danny Cappo (Detective Cappo), the head of the HPD "clandestine lab team," was contacted. The lab team collected all pertinent evidence and the search resumed.

HPD Officer Gordon Goo (Officer Goo) testified he secured a female, later identified as Defendant, in a bedroom. Officer Goo related that when he entered the bedroom, Defendant was "standing near the doorway... [and it] appeared that she just had gotten up from a dead sleep." Defendant was the only person in the bedroom.

Two Hawai`i State driver's licenses issued to Defendant were found in the bedroom. HPD collected many items from the bedroom including "ziplock" bags containing cocaine and methamphetamine, glass pipes commonly used to smoke these drugs, and other drug paraphernalia.

HPD Detective Michael Cho (Detective Cho) was the "supervisor in charge of the search warrant[.]" He testified that acetone and coffee filters—items commonly used "in the wash process for the drugs—were [also] found in Defendant's bedroom." According to the detective, "a lot of tools for [a clandestine] lab" were found in the kitchen area of the residence, including "a small glass jar [with] liquid in it, and ... at the bottom of the jar [were] crystals forming and also around—the rim of the jar."

Within the kitchen, HPD Officer Paul Pladera (Officer Pladera) found a calibron scale and a digital "Tanita" scale. The scales were located on a black metal file cabinet containing letters addressed to Defendant. Officer Pladera also found a "blue and yellow [metal container] ... with the word `acetone' on it" (Exhibit 97); a transparent plastic cylindrical container containing "a covered glass jar with a black liquid in it" (Exhibit 98); a package of coffee filters; and another scale in the kitchen area. HPD Officer Phillip Aguilar (Officer Aguilar) testified that acetone and "[P]yrex" dishes were in the kitchen area. Defendant's fingerprints were identified on one of the Pyrex dishes.

McCrocklin testified at trial pursuant to her plea agreement. Before McCrocklin took the stand, however, a bench conference was held to discuss the previous motions in limine Nos. 1 and 2 concerning her testimony. As a result of the conference, the court excluded any testimony by McCrocklin of Junior's alleged manufacturing of cocaine, but allowed McCrocklin to testify about Defendant's manufacturing of cocaine.¹⁰

D.

McCrocklin testified that on June 13, 1998, she was living with Junior, her then-boyfriend of three months. Defendant also lived at 87-1029C Hakimo Road. During that time, McCrocklin "smoked" rock cocaine and crystal methamphetamine with Defendant and also witnessed Defendant selling methamphetamine. Junior told McCrocklin that he, too, was selling cocaine.

McCrocklin believed that Defendant was "refining methamphetamine into what's known as crystal meth or ice[.]" The deputy prosecuting attorney (the prosecutor) questioned McCrocklin about her observations of Defendant's conversion of methamphetamine into crystal meth as follows:

[MCCROCKLIN] A: [Defendant] would put [the methamphetamine] in a pan and we would all sit and watch it change from powder to rock, from powder to rock.

[PROSECUTOR] Q: Now this object that she placed into the pan, did she tell you what it was?

A. Yes. She said it was crystal meth.

Q. And what did she tell you, if anything, was the purpose of placing it in the pan?

A. She didn't really say. She just said that, you know, it has to change and it does it by itself.

....

Q. ... Did you ever see her with something that she just referred to as ice or crystal?

A. Yes.

Q. What about flavoring? Was that ever used or talked about before by [Defendant]?

A. Yes.

Q. Tell us about that[,] please.

A. She would buy coconut flavoring. She would add it to the

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