State v. Lee

• Decision Date: 16 August 1993
• Docket Number: No. 16093,16093
• Citation: 856 P.2d 1246,75 Haw. 80
• Parties: STATE of Hawaii, Plaintiff-Appellee, v. Sun Na LEE, also known as Sunna Lee, Defendant-Appellant.
• Court: Hawaii Supreme Court

Page 1246

856 P.2d 1246

75 Haw. 80

STATE of Hawaii, Plaintiff-Appellee, v. Sun Na LEE, also known as Sunna Lee, Defendant-Appellant.

No. 16093.

Supreme Court of Hawai'i.

Aug. 16, 1993.

Syllabus by the Court

1. The constitutionality of a statute is a question of law which is reviewable under the right/wrong standard.

2. Where it is alleged that the legislature has acted unconstitutionally, this court has consistently held that every enactment of the legislature is presumptively constitutional, and a party challenging the statute has the burden of showing unconstitutionality beyond a reasonable doubt. The infraction should be plain, clear, manifest, and unmistakeable.

3. Under the Hawaii State Constitution, due process of law requires that a penal statute state with reasonable clarity the act it proscribes and provide fixed standards for adjudging guilt, or the statute is void for vagueness. Statutes must give the person of ordinary intelligence a reasonable opportunity to know what conduct is prohibited so that he or she may choose between lawful and unlawful conduct.

4. Under federal constitutional law, a criminal statute is void for vagueness unless it: 1) gives the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he or she may act accordingly; and 2) provides explicit standards for those who apply the statute, in order to avoid arbitrary and discriminatory enforcement and the delegation of basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis.

5. The phrase "intended for use" in Hawaii Revised Statutes (HRS) § 329-1 (Supp.1992) necessarily refers to the intention of the person charged with an offense under the prohibitions section. Therefore, in the case of a merchant seller, the instrument or object sold would be considered illegal drug paraphernalia if, and only if, the seller specifically intended that the instrument or object be used with a controlled substance in one of the myriad ways specified by the statute.

6. The specific intent requirement contained in the definitional section of the drug paraphernalia statute is sufficient to meet both State and federal constitutional due process standards. Because the prosecution must prove that a defendant has sold an object with the specific intent that the object be used with a controlled substance before the additional "reasonably should know" requirement can even be considered, the drug paraphernalia statute does notify a person of reasonable intelligence what it prohibits and does provide explicit standards to guide law enforcement.

7. HRS § 329-43.5(b) comprises essentially two elements: 1) that defendant delivered an object with the intent that the object be used to introduce a controlled substance into the human body; and 2) that defendant also knew, or reasonably should have known, that the object would in fact be used as drug paraphernalia.

8. The defendant's intention is the only thing that necessarily makes an object prohibited drug paraphernalia. All the specific objects and factors listed in HRS § 329-1 are meant to be examples of the kinds of things a jury may consider in determining whether the defendant in a particular case possessed the requisite intention when delivering the object at issue.

9. In a prosecution of a merchant under HRS § 329-43.5(b), the jury should be instructed that it must first find that the defendant-seller delivered the object(s) in question to the buyer with the specific intent that the object(s) be used with illegal drugs. The jury should be advised that in its determination, it can rely on the list of specific examples and factors included in HRS § 329-1, but that without the defendant's intent, none of these specific examples or factors, in and of themselves, can transform an object into drug paraphernalia. Rather, the fact that any of the examples or factors is present in the case may be used by the jury, along with any other relevant evidence proffered by the prosecution, to infer the defendant's specific intent or the lack of it. The jury should be further instructed that if it finds that the defendant did in fact deliver the object(s) with the requisite specific intent, thus converting the object(s) into prohibited drug paraphernalia, then it must determine whether the defendant also knew, or reasonably should have known, that the drug paraphernalia would be used as such.

10. On appeal, the test for determining whether the trial court erred in refusing to grant a motion for judgment of acquittal is whether the evidence presented was such that a reasonable mind might fairly have concluded the defendant's guilt beyond a reasonable doubt.

11. When jury instructions or the omission thereof are at issue on appeal, the standard of review is whether, when read and considered as a whole, the instructions given are prejudicially insufficient, erroneous, inconsistent, or misleading.

12. In a prosecution under HRS § 329-43.5(b), the trial court should, as a matter of course, provide the jury with an instruction enumerating all fourteen factors listed in the statutory definition of drug paraphernalia included in HRS § 329-1.

13. HRS § 329-43.5(b) contains the mens rea requirement of "intentionally."

William A. Harrison, Harrison & Matsuoka, on the briefs, Honolulu, for defendant-appellant Sun Na Lee.

Caroline M. Mee, Deputy Pros. Atty., on the briefs, Honolulu, for plaintiff-appellee State of Hawaii.

Carl M. Varady, ACLU, on the briefs, Honolulu, for amicus curiae American Civil Liberties Union of Hawaii Foundation.

Before MOON, C.J., KLEIN and LEVINSON, JJ., and CRANDALL and HUDDY, Circuit Judges, appointed by reason of vacancies.

MOON, Chief Justice.

Defendant-appellant Sun Na Lee (Lee), subsequent to jury trial, appeals her conviction on five counts of illegally selling drug paraphernalia, in violation of Hawaii Revised Statutes (HRS) § 329-43.5. Because we conclude that the jury instructions in this case were fatally flawed, we vacate Lee's conviction and sentence and remand for new trial.

I. BACKGROUND

Lee is the sole owner and operator of a convenience store called the Roadrunner Mini-Mart located in Waipahu. The store sells groceries, liquor, and various sundry items. Based on evidence gathered during the course of a three-month police undercover investigation, Lee was indicted on January 8, 1991 (first indictment) on five separate counts of violating HRS § 329-43.5(b) (Supp.1992), which provides:

It is unlawful for any person to deliver, possess with intent to deliver, or manufacture with intent to deliver, drug paraphernalia, knowing, or under circumstances where one reasonably should know, that it will be used to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain, conceal, inject, ingest, inhale, or otherwise introduce into the human body a controlled substance in violation of this chapter. Any person who violates this section is guilty of a class C felony and upon conviction may be imprisoned pursuant to section 706-660 and, if appropriate as provided in section 706-641, fined pursuant to section 706-640.

Specifically, the State of Hawaii (prosecution) charged that Lee had sold glass pipes, which can be used for smoking crystal methamphetamine or cocaine, to an undercover police officer on five different occasions between November 1989 and February 1990.

Lee filed a motion to dismiss the indictment on June 10, 1991. She claimed that HRS § 329-43.5(b) was unconstitutionally vague as applied to her, in violation of both the Hawaii and United States Constitutions. Lee further claimed that the statute lacks a "cognizable scienter requirement" in violation of HRS § 702-204.

Subsequent to a hearing, the circuit court entered a written order, filed July 25, 1991, granting the motion. Although the court found that HRS § 329-43.5(b) is neither unconstitutionally vague on its face nor as applied to Lee, it also determined that the prosecution had failed to proffer any evidence "to establish that there existed facts to support the requisite state of mind of the [d]efendant when she actually delivered the items" to the undercover police officer. The court, therefore, dismissed the first indictment without prejudice.

On August 22, 1991, Lee was again indicted (second indictment) on the same five counts of illegally selling drug paraphernalia. Prior to the start of trial, at Lee's request, the court took judicial notice of all "the records and files" in connection with the July 25 order granting Lee's motion to dismiss the first indictment, including the findings and rulings on the constitutionality of HRS § 329-43.5(b).

In its opening statement, the prosecution advised the jury that Honolulu Police Department (HPD) Officer Bruce Matthews (Matthews), the undercover police officer assigned to Lee's case, would testify that on five separate occasions he had been sold drug paraphernalia by Lee. Following opening statements, Lee moved for a judgment of acquittal. Relying on State v. Murphy, 674 P.2d 1220 (Utah 1983), Lee argued that it would be factually and legally impossible for the prosecution to demonstrate that Lee knew the glass pipes would be used for an illegal purpose, as required by HRS § 329-43.5(b), because, as an undercover police officer, Matthews could not have had the intent to use the alleged drug paraphernalia for an illegal purpose. The court, however, denied Lee's motion.

Matthews was the prosecution's only witness and testified as to what transpired during the five separate occasions when Lee sold him the alleged drug paraphernalia:

(1) November 17, 1989--He entered the store and asked Lee if he could buy a "meth pipe." ¹ Lee responded that he was "supposed to ask for an incense burner." When Matthews retorted, "OK. A meth burner," Lee then reached "down under the counter" and...