State v. Villados ( 2021 )

***NOT FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER***
Electronically Filed
Supreme Court
SCWC-30442
25-AUG-2021
07:49 AM
Dkt. 43 SO
SCWC-30442
IN THE SUPREME COURT OF THE STATE OF HAWAI‘I
STATE OF HAWAI‘I, Respondent/Plaintiff-Appellee,
vs.
ALBERT VILLADOS, JR., also known as ALBERTO VILLADOS, JR.,
Petitioner/Defendant-Appellant.
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(ICA NO. 30442; CR. NO. 08-1-0155(2))
SUMMARY DISPOSITION ORDER
(By: Recktenwald, C.J., Nakayama, McKenna, Wilson, and Eddins, JJ.)
I. INTRODUCTION
Petitioner/Defendant-Appellant Albert Villados, Jr.,
was arrested after a raid of his Maui home, which he shared with
his girlfriend, Amy Bautista, and a roommate. The raid
uncovered a fanny pack containing methamphetamine in the living
room common area. Villados was convicted of possession of the
methamphetamine and of paraphernalia. During the jury trial,
Bautista testified for the State about Villados’s prior drug
***NOT FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER***
activity, including testimony that: Bautista was addicted to
methamphetamine, and Villados had given her drugs from the fanny
pack more than a dozen times; she saw Villados with an ounce of
methamphetamine at the house; she saw him use digital scales to
break down methamphetamine; and she saw him place the broken-
down methamphetamine into smaller plastic bags.
We agree with Villados that the admission of this
testimony contravened Hawai‘i Rules of Evidence (HRE) Rules
404(b) and 403 because it was propensity evidence that suggested
that Villados was a drug dealer. The evidence suggested
Villados was engaged in more culpable activity – drug
trafficking – than the crime for which he was charged – mere
possession. Accordingly, the evidence presented a significant
risk that the jury improperly convicted Villados based on their
perception of his bad character, and his conviction must be
vacated.
II. BACKGROUND
A. Circuit Court Proceedings
In 2008, Villados was charged in the Circuit Court of
the Second Circuit (circuit court) 1 with one count of Promoting a
Dangerous Drug in the Second Degree in violation of Hawai‘i
1 The Honorable Shackley F. Raffetto presided.
2
***NOT FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER***
Revised Statutes (HRS) § 712-1242(1)(b)(i) (Supp. 2007) 2 and
Prohibited Acts Related to Drug Paraphernalia in violation of
HRS § 329-43.5(a) (2010). 3 The former charge related to the 9.35
grams of methamphetamine found in a fanny pack in Villados’s
living room, and the latter related to the fanny pack itself;
small plastic baggies, a cut plastic straw, and the eyeglass
case found inside the fanny pack; and digital scales recovered
from Villados’s bedroom.
1. Pretrial Rulings on HRE Rule 404(b) Evidence
Villados initially chose to represent himself, and
during that period, the State filed a “Notice of Intent to Rely
on Potential Rule 404(b) . . . Material.” The notice stated
2 HRS § 712-1242(1)(b)(i) provides: “A person commits the offense
of promoting a dangerous drug in the second degree if the person
knowingly[] . . . [p]ossesses one or more preparations, compounds, mixtures,
or substances of an aggregate weight of[] [o]ne-eighth ounce or more,
containing methamphetamine[.]”
3 HRS § 329-43.5(a) provided in 2008:
It is unlawful for any person to use, or to possess with
intent to use, drug paraphernalia 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[.]
Prohibited acts related to drug paraphernalia is now only a
violation.
The jury was instructed that Villados was guilty of this count if
he “did intentionally use, or possessed with intent to use, objects, to wit,
a fanny pack, plastic packets, a cut straw, digital gram scales, and/or an
eyeglass case, to store, contain, conceal, prepare, ingest, inhale, or
otherwise introduce into the human body a controlled substance.”
3
***NOT FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER***
that the State would seek to introduce evidence that Bautista,
who was living with and in a relationship with Villados at the
time, saw Villados buy a Maui Built fanny pack in which he
carried methamphetamine; that Bautista had observed Villados
come home with an ounce of methamphetamine; that she had seen
Villados break down methamphetamine into smaller quantities at
the house; and that “whenever Bautista wanted to use crystal
methamphetamine, . . . [Villados] would retrieve a packet . . .
from his fannypack and give it to her[.]”
At the hearing on the notice, the court explained to
Villados what HRE Rule 404(b) prohibited and the testimony that
the State intended to introduce; the court indicated that “[its]
opinion after reading [the notice] is that [the] evidence is
admissible under [Rule 404(b)]” because “it shows intent.” At
the end of the same hearing, Villados asked for his standby
counsel to resume representing him, to which the court agreed.
With the assistance of counsel, Villados filed a
Motion to Reconsider regarding the 404(b) material in which
Villados objected to all of Bautista’s testimony regarding his
past drug possession or use, specifically:
i. Any testimony that on prior occasions Bautista saw
defendant Villados use a Maui Built Fannypack to carry
packets of crystal methamphetamine;
ii. Any testimony that Bautista observed defendant Villados
come home with up to an ounce of crystal methamphetamine in
his possession[;]
iii. Any testimony that prior to traveling to Honolulu for
Valentines Day in 2008, that Bautista observed defendant
Villados possessing an ounce of crystal methamphetamine,
4
***NOT FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER***
and observed him break down the ounce down into smaller
packets of half gram quantities;
iv. Any testimony that Bautista observed Villados break
down one ounce quantities of methamphetamine into halves,
one as a half ounce quantity kept in the original bag, and
the other half into small quantities;
v. Any testimony that Bautista observed Villados breaking
down the drugs either on the kitchen counter, or on the
dining room table using a digital scale;
vi. Any testimony that after Villados would break down the
drugs into smaller quantities, Bautista would observe
Villados placing the packets into his Maui Built Fannypack;
vii. Any testimony that whenever Bautista wanted to use
crystal methamphetamine, she would let Villados know, and
he would retrieve a packet of crystal methamphetamine from
his fannypack and give it to her.
Villados contended that State v. Steger, 114 Hawai‘i
162, 158 P.3d 280 (App. 2006), a factually-similar case upon
which the State relied, was distinguishable. Unlike the
defendant in Steger, Villados did not face charges of
methamphetamine trafficking or distribution – only possession.
Villados argued that “Bautista’s testimony of prior bad acts –
regardless of any probative value – is inflammatory and unfairly
prejudicial [such] that it should be barred by HRE 403.” The
court, “taking into consideration State v. [Steger] and the
circumstances of this case, f[ound] that [the prior bad act
testimony] is not . . . unfairly prejudicial, and so . . .
den[ied] the motion.”
2. Trial
The following evidence, as relevant to this case, was
adduced at trial. Maui Police Department (MPD) Officer Randy
Esperanza testified to executing a search warrant for Villados’s
person and home. Bautista, Villados, and their third roommate,
5
***NOT FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER***
Mandy Marinas, were detained outside while the police conducted
the home search.
Officer Esperanza described finding a camouflage-
patterned Maui Built fanny pack behind the television in the
living room. He found a brown eyeglass case in the fanny pack;
inside the eyeglass case were three plastic packets containing
crystal methamphetamine. 4 Officer Esperanza also found a cut
straw, empty plastic packets, and over $2,000 in cash in the
fanny pack. There were two ID cards wrapped in the money:
Villados’s driver’s license and Bautista’s Hawai‘i state ID.On cross-examination, Officer Esperanza testified that
Villados was not found holding or possessing the fanny pack and
that the living room, where the fanny pack was found, was a
common area accessible to everyone in the house. The search of
Villados’s person and car also did not yield any evidence, nor
were there fingerprints found on the contents of the fanny pack.
Officer Esperanza also recovered digital gram scales
from Villados and Bautista’s bedroom. On cross-examination, he
testified that it was clear the bedroom was occupied by two
people and that Villados was not seen touching the scales.
4 Villados stipulated that the substance was in fact 9.353 grams
(more than one-eighth ounce) of methamphetamine.
6
***NOT FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER***
In the kitchen, the officers found “a black and yellow
torchlighter, glass bong, and . . . and an empty box for a . . .
scale” matching the brand of the scale in Villados’s room.
The police also searched Marinas’s room, where Officer
Esperanza testified to finding other paraphernalia, including
plastic packets containing residue that tested positive for
cocaine. On cross-examination, Officer Esperanza admitted that
there was methamphetamine in Marinas’s room as well. Marinas
was not charged.
Bautista testified that she was incarcerated at Maui
Community Correctional Center because of her involvement with
drugs in this case, and that she was recovering from addiction
to methamphetamine and receiving treatment in Maui Drug Court.
Villados was her ex-boyfriend, and she had agreed to testify
against him as part of her plea deal.
Baustista testified that the eyeglass case found in
the fanny pack belonged to Villados and that she went with
Villados to Maui Built when he bought the fanny pack. She
further testified that the methamphetamine found in the eyeglass
case belonged to Villados:
[State:] . . . . [D]o you recognize what’s inside that
brown eyeglass case?
[Bautista:] Yeah.
Q. What is that?
A. It is methamphetamine. It’s dope.
Q. Methamphetamine?
A. Yes.
Q. Okay.
And who did that belong to?
7
***NOT FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER***
A. Junior.[ 5]
Q. Junior?
A. Uh-huh.
Q. Okay. Now, the day the police came into the house and
searched the house, was this methamphetamine and this fanny
pack and the brown eyeglass case, was that all belonging to
Junior?
A. Uh-huh.
Q. And how about the money that was found in the photo?
A. That’s Junior’s.
. . . .
Q. And the two IDs there, did one of them belong to you?
A. Yes. That was my ID, but I kept that one in my drawer
because I couldn’t use it.
Q. Okay. So that is a State ID belonging to you?
A. Yes.
Q. Did you put it in the fanny pack?
A. No.
Q. Did you put drugs in the fanny pack?
A. No.
Q. Did you ever go inside the fanny pack?
A. No.
Q. After the defendant bought it, did he ever let you
handle it?
A. No.
The State then asked whether Villados had
methamphetamine at the house:
Q. Now, while you were living there, did you ever see him
come home with methamphetamine?
A. I seen him with meth at the house.
[Counsel for Villados:] Your Honor, I need to renew my
objection at this point. 404(b).
THE COURT: All right. Overruled.
[State:] Okay. You saw him with methamphetamine at the
house?
A. Uh-huh.
Q. About how much did you see him with?
A. It was like an ounce.
Q. And did you ever see him break it down into smaller
packets?
A. Yes.
Q. And did you see him -- where did you see him doing that
at?
A. In the table -- on the table in the living room, or like
in the dining area.
Q. And was he using anything to weigh it?
A. Yes.
Villados objected again at this point on the basis of
5 Bautista referred to Villados as Junior.
8
***NOT FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER***
leading questions, which the court overruled.
Bautista testified that she saw Villados “break down
the drugs” with the digital scale. The State asked, “And when
you saw him using the drug scales to break down the
methamphetamine, did he place it into smaller plastic packets?”;
she replied, “Yes.” She further testified that she saw Villados
put methamphetamine into the fanny pack. When she was living
with him, she was still addicted to methamphetamine, and she
testified that Villados would give her methamphetamine from the
fanny pack – this happened “[m]aybe twelve or fifteen times.”
She testified that she used “my bong and my torch” found in the
kitchen to smoke it. Bautista further testified that Villados
tried to convince her to “take the blame” for the fanny pack,
both on the day of the search, and on multiple occasions
thereafter.
Melissa Montilliano, “a good friend” of Bautista,
testified for the State that Villados called Montilliano several
times to check in on Bautista after Bautista was arrested and in
custody. Villados’s side of one of those conversations was
recorded and played for the jury. In it, Villados described
asking Bautista to “just take the rap” because she would likely
be sentenced only to Drug Court. Villados asked Montilliano to
ask Bautista to “hang on” and “stay solid” so that he could get
out and bail her out.
9
***NOT FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER***
The State argued during closing that Villados
knowingly possessed the drugs and paraphernalia. As relevant to
this case, the State pointed to Bautista’s testimony that
Villados “would weigh the drugs out in the kitchen at times” to
explain why the box to the scale was found there. The State
also noted that Villados was charged as a principal and/or an
accomplice and argued that he was in fact the principal;
“[Bautista] became the accomplice when she . . . used those
drugs that came out of his fanny pack,” but “[s]he took
responsibility” for that act. As for the methamphetamine:
[N]ot only was the fanny pack belonging to him, but
she gave an explanation . . . that he was in knowing
possession and he knew it was methamphetamine. Of course
he knows.
The way he handled the meth, the way she described
it, he is sophisticated. He knows what it is. He had
scales. He knew how to break it down. He knew how to work
with it. He knew how to package it. They found it
packaged inside the brown eyeglass case. Several empty
packets, a cut sealed straw, that’s drug paraphernalia.
That’s used as a scooper. And three packets of
methamphetamine, one in a very large amount of over eight
grams, and two smaller amounts. He knew how to package it.
He knew how to break it down.
When she wanted it, she had to go to him for it and
he gave it to her, at least twelve to fifteen times is what
she said.
The State emphasized that the jury’s job “is to
determine whether or not the fanny pack was his, and knowing he
possessed the fanny pack and the drugs, and the two scales.”
The State also argued Bautista was credible:
“[Bautista] had the courage to come in and testify against her
ex-boyfriend. She was under his influence at that time. He
10
***NOT FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER***
was . . . in control of the drugs, even in control of how much
she would receive from him, or drugs at that time.” The State
contended that the phone call in which Villados urged
Montilliano to tell Bautista to take the rap for him evinced his
guilt and “show[ed] a degree of sophistication on his part, how
he is going to manipulate her[.]”
Villados argued in closing that there was reasonable
doubt as to whether Villados knowingly possessed the drugs,
pointing to the fact that the drugs were found in a common area
of the house, Marinas was also found with paraphernalia in his
room, and Bautista was an interested witness in light of her
plea deal. Villados also pointed out that both Bautista and
Villados shared the bedroom where the scales were found.
During rebuttal, the State emphasized that in a
picture of Bautista and Villados taken during a recent trip to
Honolulu (which had been entered into evidence), Villados was
wearing the fanny pack.
3. Verdict and Sentencing
The jury returned a verdict of guilty on both the
possession and paraphernalia counts. Villados was sentenced to
ten years for the possession count and five years for the
paraphernalia count, to run consecutively. Probation was also
revoked in three other criminal cases – six additional counts in
total – all involving promoting a dangerous drug (in the second
11
***NOT FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER***
or third degree) and paraphernalia. Villados received five
years in prison for each count for which probation was revoked;
four of those five-year terms ran consecutively to the sentence
in this case, for a total sentence of thirty-five years’
incarceration.
B. ICA Proceedings
Villados challenged the circuit court’s admission of
the following prior bad act testimony: Bautista’s statements
that she “saw Mr. Villados with an ounce of methamphetamine at
the house, saw him use the two digital scales to break down the
large amount of the drug, saw him place the drug into smaller
plastic packets, and put methamphetamine into the fanny pack,”
and “that she was addicted to methamphetamine and that Mr.
Villados had gotten the drug from the fanny pack and given it to
her ‘maybe twelve or fifteen times’ while they were living
together.” 6
The Intermediate Court of Appeals (ICA) evaluated the
prior bad act evidence under this court’s two-prong test: “Prior
bad act evidence under HRE [R]ule 404(b) may be admissible when
it is (1) relevant and (2) more probative than prejudicial,”
citing State v. Cordeiro, 99 Hawai‘i 390, 404, 56 P.3d 692, 706
(2002). First, as to the relevance prong, the ICA determined
6 Villados’s first appeal raised several other points of error as
well, none of which are germane to his application for writ of certiorari.
12
***NOT FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER***
that Bautista’s testimony that “she saw [Villados] with
methamphetamine at the house, and that she would see Villados
break down the methamphetamine into smaller packets [which he]
put . . . into the fanny pack . . . was probative of whether
Villados had the knowledge of the methamphetamine and that he
exercised dominion and control over it.” The ICA rejected
Villados’s argument that this evidence was offered “to portray
[him] as a drug dealer”; because he was not charged with intent
to distribute, this testimony was offered “to show that he
knowingly possessed the methamphetamine.”
Under the second prong of the HRE Rule 404(b)
analysis, the ICA held that the circuit court did not abuse its
discretion when it determined that the probative value of the
evidence substantially outweighed its prejudicial effect. The
ICA reasoned that the circuit court properly relied on the
factors set forth in Steger, 114 Hawai‘i at 172, 158 P.3d at 290:
Here, Bautista’s testimony was highly probative of
Villados’s knowledge and intent to exercise dominion and
control over the methamphetamine. The need for the
evidence was heightened by the defense’s theory of the case
at trial, i.e. that he was merely present in the residence
and that mere proximity to the fanny pack is not enough to
prove that he knowingly possessed more than one-eighth of
an ounce of methamphetamine. The potential prejudice
argued by Villados, that the evidence “compelled the jury”
to conclude that he was a drug dealer, was lessened by the
fact that Villados was not charged with a distribution
offense. In addition, the court specifically instructed
that the jury “must not be influenced . . . by passion or
prejudice against the defendant” in reaching their verdict.
(Ellipsis in original.)
13
***NOT FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER***
C. Supreme Court Proceedings
Villados now asks this court to consider whether HRE
Rules 404(b) and 403 should have precluded the prior bad act
evidence from being presented to the jury. 7 Villados
specifically challenges the admission of testimony that (1)
Villados had retrieved drugs from the fanny pack and given it to
Bautista multiple times; (2) Bautista saw Villados with an ounce
of methamphetamine in the house; and (3) Bautista saw Villados
break down large amounts of methamphetamine using digital scales
and place the drugs into smaller packets. Villados argues that
this evidence, which suggested he was a drug dealer, violated
Rule 404(b) because it was used to show his propensity for drug
use or dealing. Even if it was relevant for a permissible
purpose, it should have been excluded because its probative
value was substantially outweighed by unfair prejudice because
the testimony implied that he was dealing drugs, a more serious
offense than the possession offense with which he was charged.
Villados also argues that Steger is distinguishable: the
defendant in Steger was tried for a drug dealing charge in
7 Villados filed a pro se certiorari application in this case in
2012, which we dismissed for lack of jurisdiction; thereafter, he moved for
relief under Hawai‘i Rules of Penal Procedure Rule 40, arguing that he was
entitled to refile an application for writ of certiorari. Villados v. State,
148 Hawai‘i 386, 394, 477 P.3d 826, 834 (2020). We agreed, holding that
Villados must be permitted to refile his certiorari application in this case
because ineffective assistance of counsel denied him the right for this court
to review his direct criminal appeal on the merits. Id. The instant case
arises from the new application in Villados’s direct appeal.
14
***NOT FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER***
addition to possession, whereas Villados was charged only with
possession. 8
The State counters that because the drugs were found
in a shared dwelling and the State was required to prove
constructive possession, Bautista’s challenged testimony was
relevant to show Villados’s knowledge of the crystal
methamphetamine and his intent to exercise dominion and control
over it, as the ICA held. The State additionally points out
that in Steger, the evidence of recent drug activity was
relevant to show “knowledge and intent,” with respect to the
defendant’s possession charge, as well as “to rebut the defense
that [the defendant] was merely present in the apartment[.]”
III. STANDARD OF REVIEW
“Prior bad act” evidence under [HRE] Rule 404(b)
. . . is admissible when it is 1) relevant and 2) more
probative than prejudicial. A trial court’s determination
that evidence is “relevant” within the meaning of HRE Rule
401 . . . is reviewed under the right/wrong standard of
review. However, a trial court’s balancing of the
probative value of prior bad act evidence against the
prejudicial effect of such evidence under HRE Rule 403
. . . is reviewed for abuse of discretion. An abuse of
discretion occurs when the court clearly exceeds the bounds
of reason or disregards rules or principles of law to the
substantial detriment of a party litigant.
State v. Behrendt, 124 Hawai‘i 90, 102, 237 P.3d 1156, 1168
(2010) (ellipses and brackets in original) (quoting State v.
Fetelee, 117 Hawai‘i 53, 62-63, 175 P.3d 709, 718-19 (2008)).
8 Villados additionally asks this court to review his sentence –
specifically, the credit he received for time served. Because we hold that
Villados is entitled to a new trial and vacate his conviction, we do not
reach the sentencing issue.
15
***NOT FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER***
IV. DISCUSSION
HRE Rule 404(b) provides:
Evidence of other crimes, wrongs, or acts is not admissible
to prove the character of a person in order to show action
in conformity therewith. It may, however, be admissible
where such evidence is probative of another fact that is of
consequence to the determination of the action, such as
proof of motive, opportunity, intent, preparation, plan,
knowledge, identity, modus operandi, or absence of mistake
or accident.
Under Rule 404(b), prior bad act evidence may be
admissible if admitted for a relevant purpose, such as those
enumerated in the rule, besides propensity. “The list of
permissible purposes in Rule 404(b) is not intended to be
exhaustive for the range of relevancy outside the ban is almost
infinite.” Cordeiro, 99 Hawai‘i at 414, 56 P.3d at 716(quotation marks omitted) (quoting State v. Clark, 83 Hawai‘i
289, 300, 926 P.2d 194, 205 (1996)). “When evidence is offered
for substantive reasons rather than propensity, a trial court
must additionally weigh the potential prejudicial effects of the
evidence against its probative value under HRE Rule 403.”
Behrendt, 124 Hawai‘i at 103, 237 P.3d at 1169. HRE Rule 403
provides in relevant part that otherwise-admissible evidence may
nonetheless be excluded “if its probative value is substantially
outweighed by the danger of unfair prejudice[.]”
Villados challenges the admission of Bautista’s
testimony that suggested he dealt, as opposed to merely
possessed, methamphetamine. He specifically challenges the
16
***NOT FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER***
admission of the following testimony under HRE Rule 404(b): (1)
that Villados had retrieved drugs from the fanny pack and given
it to Bautista multiple times; (2) that Bautista saw Villados
with an ounce of methamphetamine in the house; and (3) that
Bautista saw Villados break down large amounts of
methamphetamine using digital scales and place the drugs into
smaller packets. The State contends that it had to prove
Villados knew of and intended to control the drugs in order to
establish constructive possession because the drugs were found
in a common area of a shared home. Under the specific factual
circumstances of this case, we agree that the prior bad acts
associated with drug dealing here were relevant to prove
Villados’s intent to possess the drugs found in the common area.
But for the following reasons, we agree with Villados that the
evidence was inadmissible because its probative value was
substantially outweighed by its prejudicial effect.
“The balance between the [Rule 404(b)] evidence’s
probative value and prejudicial effect is ‘predicated upon an
assessment of “the need for the evidence, the efficacy of
alternative proof, and the degree to which the evidence will
probably rouse the jury to overmastering hostility.”’” State v.
Martin, 146 Hawai‘i 365, 383–84, 463 P.3d 1022, 1040–41 (2020)
(quoting State v. Uyesugi, 100 Hawai‘i 442, 463, 60 P.3d 843, 864
(2002)). We have previously “underscore[d] the importance of
17
***NOT FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER***
the need factor[.]” State v. Clark, 83 Hawai‘i 289, 303, 926
P.2d 194, 208 (1996) (citation omitted). In this case, the
State’s need was scant and alternative proof highly efficacious
because Bautista testified directly to the fact that the prior
bad acts only showed circumstantially:
[State:] . . . . [D]o you recognize what’s inside that
brown eyeglass case?
[Bautista:] Yeah.
Q. What is that?
A. It is methamphetamine. It’s dope.
Q. Methamphetamine?
A. Yes.
Q. Okay.
And who did that belong to?
A. Junior.
Q. Junior?
A. Uh-huh.
Q. Okay. Now, the day the police came into the house and
searched the house, was this methamphetamine and this fanny
back and the brown eyeglass case, was that all belonging to
Junior?
A. Uh-huh.
Q. And how about the money that was found in the photo?
A. That’s Junior’s.
. . . .
Q. And the two IDs there, did one of them belong to you?
A. Yes. That was my ID, but I kept that one in my drawer
because I couldn’t use it.
Q. Okay. So that is a State ID belonging to you?
A. Yes.
Q. Did you put it in the fanny pack?
A. No.
Q. Did you put drugs in the fanny pack?
A. No.
Q. Did you ever go inside the fanny pack?
A. No.
Q. After the defendant bought it, did he ever let you
handle it?
A. No.
In addition to Bautista’s direct testimony that the
drugs belonged to Villados, there was also other admissible
circumstantial evidence that Villados knowingly possessed the
drugs. Bautista testified that she went with Villados when he
18
***NOT FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER***
bought the Maui Built fanny pack and eyeglass case, and the
State introduced a photograph of Villados wearing the Maui Built
fanny pack. By contrast, the testimony that Villados had
previously had large quantities of methamphetamine in the house
and broke it down into smaller packets only circumstantially
suggests that later-recovered drugs belonged to him. Therefore,
in light of ample other evidence supporting the inference that
Villados knowingly possessed the drugs, the Rule 404(b) evidence
was “unnecessary overkill[.]” State v. Austin, 70 Haw. 300,
309, 769 P.2d 1098, 1103 (1989).
Moreover, the nature of the challenged evidence was
likely to “rouse the jury to overmastering hostility.” Martin,
146 Hawai‘i at 383-84, 463 P.3d at 1040-41 (citation omitted).
Respectfully, we disagree with the ICA in this case that the
prejudicial effect of evidence “that he was a drug dealer[] was
lessened by the fact that Villados was not charged with a
distribution offense.” Rather, in our view, that he was not
charged with a distribution offense heightened the risk the jury
would make the impermissible propensity inference because, as
Villados argued, drug dealing is “viewed as reprehensible in the
community at large” and “implicated him in far more sinister
activity than mere possession.” 9 The jury may have made the
9 One juror submitted a question for Officer Esperanza that, while
ultimately not asked on the grounds that it was irrelevant, at least suggests
that whether Villados was a user or a dealer – and that the former was less
19
***NOT FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER***
improper character inference that, “because [Villados] was a
person of criminal character, it was likely that he committed
the crime for which he was on trial.” State v. Pinero, 70 Haw.
509, 518, 778 P.2d 704, 711 (1989). And indeed, because the
prior bad acts were worse in kind than the crime for which he
was tried, the “probability of a hostile reaction against
[Villados]” was greater. Id.; Behrendt, 124 Hawai‘i at 108, 237
P.3d at 1174 (“[Differences between the prior bad acts and
charged crimes] are relevant considerations which could,
depending on the circumstances, provide a basis for limiting
such evidence or excluding it altogether[.]”); cf. United States
v. Stout, 509 F.3d 796, 803 (6th Cir. 2007) (affirming the
exclusion of prior bad act evidence when “the prior bad acts in
this case were significantly worse than the acts charged”).
Additionally, during closing arguments, the State
emphasized that Villados was “sophisticated” when it came to
drugs, and that he controlled Bautista’s drug use:
The way he handled the meth, the way she described it, he
is sophisticated. He knows what it is. He had scales. He
knew how to break it down. He knew how to work with it.
He knew how to package it.
. . . .
[Bautista] was under his influence at that time. He was
. . . in control of the drugs, even in control of how much
she would receive from him, or drugs at that time.
culpable than the latter – was on the jurors’ minds. The proposed question
was: “Upon what information was the warrant issued? I.E. did the police
believe the defendant was a dealer or was he just seen as a user?”
20
***NOT FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER***
See State v. Gallagher, 146 Hawai‘i 462, 475, 463 P.3d 1119, 1132
(2020) (explaining that the use of the prior bad act evidence
during closing argument “likely exacerbated” the prejudicial
effect).
Other factors to consider when conducting the Rule 403
balancing test include “the strength of the evidence as to the
commission of the other crime, the similarities between the
crimes, [and] the interval of time that has elapsed between the
crimes[.]” Behrendt, 124 Hawai‘i at 106, 237 P.3d at 1172(quoting State v. Renon, 73 Haw. 23, 38, 828 P.2d 1266, 1273
(1992)). The State did not argue that Bautista must have
possessed the seized methamphetamine because it was the same
methamphetamine that Bautista observed on prior occasions –
rather, the State’s argument was that methamphetamine in the
house had previously belonged to Villados and so it must have on
this occasion, too. Accordingly, these factors have less
probative value than they might under other circumstances. Cf.
Gallagher, 146 Hawai‘i at 472, 463 P.3d at 1129 (“[A] close
proximity in time and nature between the prior misconduct and
the charged offense may also increase the likelihood that a jury
will consider the previous conduct to conclude that the
defendant has a propensity for committing such acts, which is a
prohibited inference. . . . [W]hen the evidence is not offered
for a purpose for which similarity in time and nature is
21
***NOT FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER***
probative, a close unity between the acts potentially weighs
against admitting the evidence when it increases the chances of
unfair prejudice.”). As above, the prior acts were crucially
different in that they involved conduct consistent with drug
dealing, an offense viewed as more morally culpable than the
mere possession charge for which he was tried.
The parties have repeatedly pointed to the ICA opinion
in State v. Steger as central to the issues in this case.
Steger also involved a drug raid of a home in which three
people, including the defendant, lived. 114 Hawai‘i at 165, 158
P.3d at 283. The police found methamphetamine in a common area,
along with a bag containing Steger’s ID and almost $3,000 in
cash. Id. Additionally, other drugs, paraphernalia, and a
pistol were found in the kitchen alongside Steger’s cell phone
and laptop. Id. Steger was charged with several counts of drug
possession and distribution. Id. at 164, 158 P.3d at 282. At
trial, one of Steger’s roommates, Cruz, testified about her
observation of Steger’s drug-related activities during the two-
month period preceding the execution of the search warrant, when
she lived with Steger:
Among other things, Cruz testified that during this time
period, she saw Steger package crystal methamphetamine into
plastic packets and sell crystal methamphetamine out of his
truck. She also saw quantities of crystal methamphetamine
in the apartment that were consistent with the
approximately four ounces seized by the police. Cruz
testified that Steger obtained crystal methamphetamine and
Ecstasy through packages sent in the mail. She recounted
one incident in which Steger, in her presence, opened a
22
***NOT FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER***
package he had just picked up from the post office. The
package contained baggies of crystal methamphetamine. Cruz
further testified that Steger made bongs, used crystal
methamphetamine and Ecstasy in her presence, and gave her
illegal drugs to use.
Id. at 171, 158 P.3d at 289.
The ICA concluded that Cruz’s testimony did not
violate HRE Rule 404(b). First, the evidence “was directly
relevant to proving Steger’s knowledge and intent with respect
to the drugs found in the apartment,” both because the State
“was required to prove that Steger knowingly possessed at least
one ounce of methamphetamine to establish the [possession]
offense,” and because the State also had to “prove that Steger
intended to distribute at least 25 tablets of Ecstasy[.]” Id.
at 172, 158 P.3d at 290. The ICA held that Cruz’s testimony was
probative of whether Steger had the “requisite criminal intent,”
but did not distinguish between the possession and distribution
charges. Id. The ICA also held that “the probative value of
Cruz’s testimony regarding Steger’s other drug activities was
not substantially outweighed by the danger of unfair prejudice.”
Id. at 173, 158 P.3d at 291. In addition to being probative of
Steger’s mens rea, “Steger attempted to place the blame for the
[drugs] on his co-defendant,” the third roommate in the house,
and so the prior bad act evidence “refute[d] his defense that he
was merely present in the apartment[.]” Id. The ICA reasoned
that Steger’s portrayal of himself at trial as a drug user in
23
***NOT FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER***
order “to explain how he could be present in an apartment filled
with drugs and yet not be responsible for the distribution
quantities” found therein mitigated any risk of unfair prejudice
from the jury’s general hostility to drug use. Id. Finally,
the ICA determined there was “a substantial need for Cruz’s
testimony” because “the other evidence of Steger’s knowledge and
intent was circumstantial[.]” Id.
As explained above, we agree with the ICA that prior
bad acts associated with drug dealing may be relevant to prove
the requisite intent both for possession and distribution under
the specific factual circumstances presented by Steger and this
case, in which the State must prove who possessed drugs found in
the common area of a shared home. However, with respect to the
HRE Rule 403 balancing analysis, the circumstances in this case
are meaningfully different than Steger. Unlike the defendant in
Steger, Villados was not charged with a drug crime requiring the
intent to distribute, and the State’s need for the evidence here
was not as pronounced as in Steger. Mere possession often can
be – and in this case was – established using less prejudicial
evidence. Moreover, Villados, unlike Steger, did not “inject[]
his prior involvement with drugs into the trial by
characterizing himself as a heavy methamphetamine user.” Id.
Thus, the prejudicial effect of the testimony was far more
24
***NOT FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER***
pronounced in the instant case. Accordingly, we do not view
Steger as dispositive here.
Thus, we conclude that the circuit court abused its
discretion when it determined that the probative value
outweighed the prejudicial effect of the testimony that Villados
had retrieved drugs from the fanny pack and given it to Bautista
multiple times, that Bautista saw Villados with an ounce of
methamphetamine at the house, and that Bautista saw him break it
down into smaller plastic packets. There is “a reasonable
possibility that the error complained of might have contributed
to the conviction.” Gallagher, 146 Hawai‘i at 481, 463 P.3d at
1138 (quoting State v. Mundon, 121 Hawai‘i 339, 368, 219 P.3d
1126, 1155 (2009)). Although substantial admissible evidence
supported the key inference that the drugs belonged to Villados,
there is a reasonable possibility that the jury “decide[d] the
case on a basis unrelated to th[e] elements [of the offense]” –
that is, the jury may have convicted Villados based on the
unfairly prejudicial inference that he was a drug dealer and
therefore deserved to be convicted. Id. at 482, 463 P.3d at
1139. Villados is therefore entitled to a new trial.
V. CONCLUSION
For the foregoing reasons, the ICA’s January 8, 2021
judgment on appeal is vacated. The circuit court’s April 15,
2010 judgment of conviction is vacated, and this case is
25
***NOT FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER***
remanded to the circuit court for proceedings consistent with
this opinion.
DATED: Honolulu, Hawai‘i, August 25, 2021.
Mark M. Murakami and /s/ Mark E. Recktenwald
Joanna C. Zeigler
for petitioner /s/ Paula A. Nakayama
Mark R. Simonds /s/ Sabrina S. McKenna
for respondent
/s/ Michael D. Wilson
/s/ Todd W. Eddins
26