State v. Oughterson

• Decision Date: 16 September 2002
• Docket Number: No. 23075.,23075.
• Citation: 54 P.3d 415,99 Haw. 244
• Parties: STATE of Hawai`i, Plaintiff-Appellant, v. Scott OUGHTERSON, Defendant-Appellee.
• Court: Hawaii Supreme Court

54 P.3d 415

99 Haw. 244

STATE of Hawai`i, Plaintiff-Appellant, v. Scott OUGHTERSON, Defendant-Appellee.

No. 23075.

Supreme Court of Hawaii.

September 16, 2002.

Loren J. Thomas, Deputy Prosecuting Attorney, on the briefs, for the plaintiff-appellant State of Hawai`i.

Linda C.R. Jameson, Deputy Public Defender, on the briefs, for the defendant-appellee Scott Oughterson.

MOON, C.J., LEVINSON, and NAKAYAMA, JJ.

Opinion of the Court by LEVINSON, J.

The plaintiff-appellant State of Hawai`i (the prosecution) appeals from an order of the first circuit court granting the defendant-appellee Scott Oughterson's motion for reconsideration of the circuit court's order denying his motion to dismiss count 1 of the complaint against him,<sup>1</sup> in which Oughterson was charged with committing the offense of promoting a dangerous drug in the third degree, in violation of Hawai`i Revised Statutes (HRS) § 712-1243 (1993).² On appeal, the prosecution contends that the circuit court, Honorable John C. Bryant, Jr. presiding, abused its discretion in granting Oughterson's motion for reconsideration because, in "reconsidering" the pretrial ruling of the circuit court, the Honorable Michael A. Town presiding, that, pursuant to HRS § 702-236 (1993),³ Oughterson's conduct did not amount to a de minimis infraction of HRS § 712-1243, Judge Bryant "overruled another court's ruling of equal and concurrent jurisdiction without cogent reasons." Alternatively, the prosecution contends that Judge Bryant clearly erred with regard to his second, fourth, fifth, and sixth findings of fact (FOFs) and that, consequently, his second, third, fourth, and fifth conclusions of law (COLs) are wrong.⁴ Because the evidence and authority that Judge Town had considered in denying Oughterson's pretrial motion to dismiss on de minimis grounds was not augmented in any material respect by the evidence adduced at Oughterson's trial or by legal precedents published during the intervening period of time, we agree with the prosecution that Judge Bryant abused his discretion in overruling Judge Town's order simply because he disagreed with it. Accordingly, we need not and do not reach the prosecution's remaining points of error and remand this matter to the circuit court for further proceedings.

I. BACKGROUND

By complaint, the prosecution charged Oughterson with committing the offenses of promoting a dangerous drug in the third degree (count 1), in violation of HRS § 712-1243, see supra note 2, and unlawful use of drug paraphernalia (count 2), in violation of HRS § 329-43.5(a) (1993).⁵ On August 19, 1999, Oughterson filed a pretrial motion to dismiss count 1 "because [his] alleged infraction is a deminimis [sic] offense pursuant to [HRS §] 702-236." In the memorandum in support of his motion, Oughterson noted that the amount of cocaine residue recovered from a glass pipe that he allegedly possessed was "0.012 grams" and citing, inter alia, State v. Vance, 61 Haw. 291, 602 P.2d 933 (1979), posited that "the amount of cocaine he allegedly possessed was "insufficient to use personally or to sell." Oughterson argued:

According to Emeritus Professor of Pharmacology, George W. Read, Ph.D., the minimal amount of methamphetamine necessary for a physiological/psycho-neuro response is 0.030 [grams]. That amount is 0.018 [grams] more than alleged to be possessed by [ ] Oughterson in this case. No other facts attendant to the instant case indicate that [Oughterson] either intended to use or sell the dangerous drug that is attributed to him[.]

In its memorandum in opposition, the prosecution contended that HRS § 702-236 "[did] not apply in this case," insofar as HRS § 712-1243 proscribed the possession of a dangerous drug "in any amount." Alternatively, the prosecution argued that, in light of "all of the facts in this case," Oughterson's conduct did, in fact, "actually cause or threaten to cause the harm or evil sought to be prevented under [HRS § ] 712-1243[.]"

Judge Town presided over a pretrial hearing conducted in connection with Oughterson's motion. At the hearing,⁶ the defense acknowledged that it bore the burden of proof, entered several stipulations into the record, and adduced the testimony of George W. Read, Ph.D, whom the court accepted as an expert in the field of pharmacology. The parties stipulated that the glass pipe that Oughterson allegedly possessed "was found to contain an aggregate substance weighing.012 grams[,] which tested positive for the presence of cocaine." The parties also stipulated several exhibits into evidence, including the lab reports regarding testing of the residue, as well as various police reports. In addition, Judge Town took judicial notice of the Honorable Dexter D. Del Resario's findings of fact, conclusions of law, and order granting a similar motion to dismiss in State v. Viernes, another case that was pending on appeal in this court at the time.⁷

Dr. Read opined in relevant part that thirty milligrams of cocaine was the minimal amount that could produce a "euphoric effect" in a "naive user," or, in other words, that could produce a "rush." Dr. Read testified that he did not believe that the twelve milligrams of residue that Oughterson allegedly possessed was either "saleable" or "usable as a [central nervous system] stimulant or euphoric effect stimulant." Dr. Read based his opinions on the research of others that he had reviewed, as well as his own "street verification." However, Dr. Read acknowledged that he had never conducted any studies or research into the quantity of cocaine necessary to trigger a "physiological response" and had never personally observed anyone illicitly using cocaine. Moreover, Dr. Read conceded that, even though he believed that twelve milligrams of cocaine residue could not produce a euphoric effect, it could, nonetheless, be "introduced" into the human body and could produce an elevated heart rate. Finally, Dr. Read conceded that he had "no idea" whether twelve milligrams of cocaine would have had an effect on Oughterson, acknowledging that "the only way to determine what dose produces an effect on a particular person is to test that person himself," and that he had not tested Oughterson's tolerance for cocaine.

The prosecution adduced the testimony of Kevin Ho, Ph.D., whom the circuit court accepted as an expert in the field of pharmacy and pharmacology. Dr. Ho testified that, as employed in pharmacological literature, "physiological effect" is a term describing, as an objective criterion, "something we can measure, [such as] heart rate, blood pressure, [or] pupillary dilation." "Pharmacological effect," according to Dr. Ho, "is a physiological effect that can't [sic., can] be directly attributed to some pharmacological agent"; in other words, "you give the guy the drug, he does A." And, as distinguished from a physiological effect, a "euphoric effect" is a "subjective measure of a person's emotional state." The term "euphoric effect," as Dr. Ho interpreted its usage in the literature, is employed "in a qualitative [rather than a quantitative] manner."

Dr. Ho asserted that, in the studies he had reviewed, the lowest reported dosage of cocaine at which every subject had reported getting "high" was "sixteen milligrams." Another study reported that the minimum dosage necessary to induce the participants to report a euphoric effect was fifty milligrams. Nevertheless, Dr. Ho further testified (1) that a dosage of "0.0025 grams" had been reported to "elicit a change of mood," (2) that a dosage of eight milligrams, or 0.008 grams, resulted in an increased heart rate, (3) that a dosage of sixteen milligrams, or 0.016 grams, increased "the heart rate and systolic blood pressure by 4,000," (4) that a dosage of twenty milligrams, or 0.020 grams, resulted in "acute toxicity requiring medical intervention," which Dr. Ho explained meant that "you end up in ER," (5) that a "topical application" of fifty milligrams, or 0.050 grams, "produce[d] analgesia[ ] sufficient to perform surgery on the nasal cavity and sinuses," and (6) that a dosage of 500 milligrams, or 0.5 grams, was "lethal" in fifty percent of the population. However, in response to the circuit court's solicitation of his opinion, based on his education, training, and experience, as to the specific effect that twelve milligrams would have upon a person, Dr. Ho replied that such a dosage "could produce anything from no effect to death" because cocaine "is one of those drugs that's really highly variable in its response" and the effect of which, among other things, varies as a function of the user's "own individual blood chemistry."

Recalled in rebuttal to Dr. Ho's testimony, Dr. Read maintained his position that a "standard male person," who was a "naive user," would require a dose of thirty milligrams of "pure" cocaine, rather than that generally available on the street, which is "cut" with a "buffer" of some sort,⁸ in order to attain a "buzz." On the other hand, according to Dr. Read, a dosage of twelve milligrams would not produce such a euphoric effect. However, Dr. Read conceded that, with respect to producing a "cardiovascular" effect, "we're much more sensitive" and that a dosage of between ten and fifteen milligrams would produce "cardiovascular effects."

Recalled in surrebuttal to Dr. Read's rebuttal testimony, Dr. Ho opined that "your average Joe" who is a "naive user" and weighs "70 kilograms" "could have a physiological. . . or central nervous system response" to dosages of thirty, twelve, and even five milligrams of cocaine. Dr. Ho also opined that the same dosages could produce a euphoric effect as well. At the hearing, neither party adduced testimony regarding any of the circumstances under which Oughterson allegedly possessed the pipe containing the residue. However, the police reports received into evidence reflected that, while on patrol in the downtown area, Honolulu Police Department (HPD) Officer Clayton Saito observed...