State v. Deguerra ( 2023 )

NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
16-JUN-2023
07:57 AM
Dkt. 32 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
STATE OF HAWAI#I, Plaintiff-Appellant, v.
DEAN ROSS DEGUERRA, Defendant-Appellee
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CASE NO. 1CPC-XX-XXXXXXX)
SUMMARY DISPOSITION ORDER
(By: Ginoza, Chief Judge, and Leonard and Wadsworth, JJ.)
Plaintiff-Appellant State of Hawai#i (State) appeals
from the June 18, 2021 "Findings of Fact; Conclusions of Law and
Order Granting Defendant[-Appellee Dean Ross Deguerra's
(Deguerra)] Motion to Dismiss For De Minimis Violation Filed on
January 29, 2021" (FOFs/COLs/Order), entered in the Circuit Court
of the First Circuit (Circuit Court).1/ For the reasons explained
below, we affirm.
The following findings of fact by the Circuit Court are
unchallenged on appeal and thus binding on the parties and this
court, see State v. Rodrigues, 145 Hawai#i 487, 494, 454 P.3d
428, 435 (2019): On April 13, 2019, at approximately 9:23 a.m.,
Honolulu Police Department (HPD) Officer Aaron Eveland (Officer
Eveland) was on-duty, conducting traffic speed enforcement near
the intersection of Farrington Highway and Plantation Road. Upon
1/
The Honorable Kevin A. Souza presided.
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observing a speeding violation,2/ Officer Eveland performed a
traffic stop and approached the driver's-side door. As Officer
Eveland approached, and before he could identify himself or the
reason for the stop, Deguerra stated: "I don't have a license and
I have a warrant." At that time, Officer Eveland observed a
cylindrical glass pipe with a bulbous end, as well as a green
lighter, laying on the front passenger's seat in plain view.
Officer Eveland informed Deguerra that he was being arrested for
possession of the pipe, and arrested Deguerra without incident.3/
The pipe was recovered, submitted for chemical analysis, and
found to have a residual substance containing methamphetamine
with a net weight of 0.25 grams. On October 30, 2019, Deguerra
was charged via felony information and non-felony complaint with
Promoting a Dangerous Drug in the Third Degree, in violation of
Hawaii Revised Statutes (HRS) § 712-1243 (2014)4/ (Count One), and
Driving Without a License, in violation of HRS § 286-102.
On January 29, 2021, Deguerra filed a motion to dismiss
for de minimis violation (Motion to Dismiss), which sought
dismissal of the felony information (i.e., Count One) pursuant to
HRS § 702-236. That section states, in relevant part:
The court may dismiss a prosecution if, having regard to the
nature of the conduct alleged and the nature of the
attendant circumstances, it finds that the defendant's
conduct . . . [d]id not actually cause or threaten the harm
or evil sought to be prevented by the law defining the
offenses or did so only to an extent too trivial to warrant
the condemnation of conviction[.]"
2/
In their respective submissions to the Circuit Court for
Deguerra's motion to dismiss, both parties asserted that Officer Eveland used
an HPD-issued radar device that indicated Deguerra's vehicle was traveling 40
miles per hour. Deguerra's motion indicated, and the State did not contest,
that the posted speed limit where Deguerra's vehicle had been traveling was 25
miles per hour.
3/
Deguerra was also arrested for the outstanding warrant and Driving
Without a License.
4/
HRS § 712-1243 provides:
(1) A person commits the offense of promoting a
dangerous drug in the third degree if the person knowingly
possesses any dangerous drug in any amount.
(2) Promoting a dangerous drug in the third degree is
a class C felony.
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HRS § 702-236(1)(b) (2014) (formatting altered). The State
opposed the motion, arguing that Deguerra "was not in possession
of an infinitesimal amount of methamphetamine so the attendant
circumstances of [Deguerra's] arrest are irrelevant for
considering dismissal as de minimis."
At a May 19, 2021 hearing on the Motion to Dismiss,
Officer Eveland testified, as did HPD Detective Dale Morita
(Detective Morita). Detective Morita was determined to be an
expert in, and testified regarding: "(1) methods that
methamphetamine is used, particularly in relation to a glass pipe
and residue in a glass pipe; and (2) the amounts or quantities of
methamphetamine that are generally sold on the Island of Oahu."
On June 18, 2021, the Circuit Court entered the
FOFs/COLs/Order, which granted the Motion to Dismiss and
included, among others, the following COLs:
9. A consideration of the nature of the conduct and
the nature of the attendant circumstances reveals that the
facts of this case are comparable to [State v. ]Enos[, 147
Hawai#i 150, 465 P.3d 597 (2020)] in many important ways.
10. First, like in Enos, [Deguerra's] initial
interaction with the police was prompted by what appears to
be a very low-level, nonviolent allegation - to wit, a
routine speeding violation.
11. Second, like in Enos, the illicit substance was
not found on [Deguerra's] person, but instead was in close
proximity to him.
12. Third, like in Enos, [Deguerra] was not engaged
in nor suspected of engaging in any violence or committing
any violent crime.
13. Fourth, like in Enos, [Deguerra] was not engaged
in nor suspected of engaging in any property crime, let
alone the type of high-level property crime the Legislature
sought to be prevented via HRS [§] 712-1243.
14. Fifth, while a glass pipe with residue was found
in the vehicle [Deguerra] was operating, there is no
evidence that he was observed actively using the glass pipe
to ingest methamphetamine or any other substance, or
consuming illicit drugs in any way. Officer Eveland
testified that the pipe was not warm to the touch when he
recovered it.
15. Finally, there is no evidence that [Deguerra] was
intoxicated or under the influence of illicit drugs
throughout his entire interaction with Officer Eveland. Per
Officer Eveland, [Deguerra] complied with the traffic stop,
pulled over immediately, and did not attempt to evade
Officer Eveland in any way. As soon as Officer Eveland
approached, [Deguerra] voluntarily uttered, "I don't have a
license and I have a warrant." Moreover, [Deguerra] fully
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complied and cooperated with Officer Eveland's instructions
to step out of the vehicle, did not attempt to reach for or
conceal the pipe or lighter, and did not resist arrest or
struggle in any way.
16. Accordingly, this court has considered the nature
of the conduct and the nature of the attendant
circumstances, and finds, like in Enos, that [Deguerra's]
conduct did not actually cause or threaten the harm or evil
sought to be prevented by [HRS §] 712-1243, or did so only
to an extent too trivial to warrant the condemnation of
conviction for promoting a Dangerous Drug in the Third
Degree.
17. Lastly, while the State proffered Detective
Morita as an expert witness to testify that the 0.25 grams
of residue contained in the pipe is capable of being
consumed or sold (i.e., useable or saleable), the Court has
several concerns with Detective Morita's expert conclusions:
a. First, Detective Morita is the HPD detective
assigned to investigate this case. This is his case.
Should this case go to trial, it is expected that Detective
Morita would be called as a lay witness for the State.
While nothing precludes Detective Morita from testifying as
an "expert" in this de minimis inquiry, the Court does
consider his interest in the outcome of this case in
weighing the effect and value of his testimony.
b. Second, although Detective Morita is the
assigned HPD Detective in this case, there is no evidence
that he ever personally observed or inspected the pipe or
residue in question.
c. Third, while Detective Morita may have
previously purchased quantities of methamphetamine as low as
0.18 grams, he admits that the 0.18 grams he previously
purchased was in a pure, clear white, crystalline state, and
not in the form of burnt residue scraped from the inside of
a pipe.
d. Finally, and perhaps most significantly,
while Detective Morita claims that it's possible to
"consume" 0.25 grams of methamphetamine residue, this
blanket assertion is meaningless without tethering it to the
facts and circumstances of this case. Notably, no further
analysis was conducted to determine how much of the residual
substance analyzed by Criminalist Brown was in fact
methamphetamine. Therefore, it's not known how much of the
0.25 grams of residual substance actually contained
methamphetamine versus other, unnamed chemical
compounds. . . . Accordingly, without more information,
this Court cannot simply conclude, as a matter of law, that
the residual substance recovered from [Deguerra's] pipe was
indeed 0.25 grams of methamphetamine, or that it could be
"consumed" as such.
(Footnote omitted.)
On appeal, the State contends that the Circuit Court
abused its discretion in dismissing the case as a de minimis
violation. Relatedly, the State challenges COLs 9 through 17 and
the Circuit Court's "Order generally."
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"[T]he defendant bears the burden of establishing that
'his or her conduct neither caused nor threatened to cause the
harm or evil that the statute, under which he or she is charged,
seeks to prevent.'" State v. Fukagawa, 100 Hawai#i 498, 507, 60
P.3d 899, 908 (2002) (quoting State v. Oughterson, 99 Hawai#i
244, 256, 54 P.3d 415, 427 (2002)).
We review the dismissal of a prosecution for a de
minimis violation for abuse of discretion. State v. Pacquing,
129 Hawai#i 172, 179-80, 297 P.3d 188, 195-96 (2013) (citing
State v. Rapozo, 123 Hawai#i 329, 336, 235 P.3d 325, 332 (2010)).
"A court abuses its discretion if it clearly exceeded the bounds
of reason or disregarded rules or principles of law or practice
to the substantial detriment of a party litigant." State v.
Enos, 147 Hawai#i 150, 159, 465 P.3d 597, 606 (2020) (quoting
Rapozo, 123 Hawai#i at 336, 235 P.3d at 332).
"Conclusions of law are reviewed de novo under the
right/wrong standard of review." State v. Miranda, 147 Hawai#i
171, 179, 465 P.3d 618, 626 (2020) (citing State v. Lavoie, 145
Hawai#i 409, 421, 453 P.3d 229, 241 (2019)). However, "[a]
conclusion of law that presents mixed questions of fact and law
is reviewed under the clearly erroneous standard because the
conclusion is dependent upon the facts and circumstances of the
particular case." Baker v. Galuteria, 141 Hawai#i 468, 475, 413
P.3d 372, 379 (App. 2018) (emphasis omitted).
HRS § 702-236(1)(b) authorizes a court to dismiss a
charge if, in light of the attendant circumstances, it finds that
the defendant's conduct "[d]id not actually cause or threaten the
harm or evil sought to be prevented by the law defining the
offenses or did so only to an extent too trivial to warrant the
condemnation of conviction[.]" The Hawai#i Supreme Court has
stated that "the harm sought to be prevented by [HRS § 712-1243]
is 'the use of the proscribed drug or its sale or transfer for
ultimate use.'" State v. Melendez, 146 Hawai#i 391, 395, 463
P.3d 1048, 1052 (2020) (original brackets and some internal
quotation marks omitted) (quoting State v. Hironaka, 99 Hawai#i
198, 209, 53 P.3d 806, 817 (2002) (quoting State v. Vance, 61
Haw. 291, 307, 602 P.2d 933, 944 (1979))). However, in Enos, the
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court further clarified:
Although Promotion of a Dangerous Drug in the Third
Degree on its face applies explicitly to drugs in any
amount, "where a literal application of HRS § 712-1243 would
compel an unduly harsh conviction for possession of a
microscopic trace of a dangerous drug, HRS § 702-236 . . .
may be applicable to mitigate this result." Vance, 61 Haw.
at 307, 602 P.2d at 944; see also Fukagawa, 100 Hawai #i at
504, 60 P.3d at 905. The quantity possessed of a dangerous
drug is "microscopic" or "infinitesimal," Vance, 61 Haw. at
307, 602 P.2d at 944, and de minimis dismissal is warranted
if the amount could not "produce a pharmacological or
physiological effect." Fukagawa, 100 Hawai #i at 506, 60
P.3d at 907 (citing State v. Hironaka, 99 Hawai #i 198, 209,
53 P.3d 806, 817 (2002); State v. Balanza, 93 Hawai #i 279,
283–85, 1 P.3d 281, 285–87 (2000)).
Even so, we have long insisted that "quantity is only
one of the surrounding circumstances a court must consider."
Id. at 505, 60 P.3d at 906. "Before the de minimis statute
can be properly applied in a criminal case, all of the
relevant facts bearing upon the defendant's conduct and the
nature of the attendant circumstances regarding the
commission of the offense should be shown to the judge."
[State v. ]Park, 55 Haw[. 610,] 616, 525 P.2d [586,] 591[
(1974)]. Possession of an amount of drugs capable of
producing a "pharmacological or physiological effect" may
nonetheless warrant dismissal as de minimis if the amount
possessed approaches "infinitesimal" - which is to say, a
very small amount - and the other attendant circumstances
indicate that the defendant "did not cause or threaten the
harm or evil sought to be prevented by the law defining the
offense." Vance, 61 Haw[.] at 307, 602 P.2d at 944; HRS §
702-236(1)(b); see also [State v. ]Viernes, 92 Hawai #i
[130,] 134, 988 P.2d [195,] 199[ (1999)].
Enos, 147 Hawai#i at 162, 465 P.3d at 609 (original emphasis and
brackets omitted; emphasis added).
The State argues that the Circuit Court abused its
discretion by dismissing the charge against Deguerra on de
minimis grounds because he:
failed to present to the circuit court any evidence to
suggest that the drugs in [his] possession w[ere] not
saleable or useable. Under such circumstances, there was no
basis upon which the circuit court could conclude that 0.250
grams of a substance containing methamphetamine in
[Deguerra's] possession was incapable of producing a
pharmacological or physiological effect.
The State's argument is flawed. Whether the amount
possessed of a dangerous drug could (or could not) "produce a
pharmacological or physiological effect" is not necessarily
determinative of whether HRS § 702-236 can be properly applied in
a criminal case. Enos, 147 Hawai#i at 162-63, 465 P.3d at 609-
10.
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The supreme court stated in Enos:
To be clear, the quantity of drugs possessed remains a
critical consideration when deciding a de minimis motion on
a drug charge. It would be an abuse of discretion, for
instance, if a court gave no consideration at all to the
quantity possessed. Cf. Fukagawa, 100 Hawai #i at 504–05, 60
P.3d at 905–06. This would run counter to the legislature's
intent to criminalize possession of "any dangerous drug in
any amount." HRS § 712-1243 (emphasis added). We only hold
in the instant case that the quantity possessed by a
defendant may pass the threshold into an amount capable of
"produc[ing] a pharmacological or physiological effect"
without precluding a court from dismissing a charge as de
minimis. Fukagawa, 100 Hawai#i at 506, 60 P.3d at 906. As
here, if the amount possessed is capable of producing such
an effect but is nonetheless very small, and if the other
attendant circumstances weigh in favor of dismissal, it is
within a court's sound discretion to dismiss the charge as
de minimis.
Id. at 163, 465 P.3d at 610 (emphases added).
Here, as in Enos, the Circuit Court determined that the
"amount of substance of unknown purity, containing
methamphetamine" was "very small," and the other attendant
circumstances supported dismissal. See id. at 163, 465 P.3d at
610. In particular, the Circuit Court found in COLs 10 through
15 that: Deguerra's initial interaction with the police was "a
very low-level, non-violent allegation"; "the illicit substance
was not found on [Deguerra's] person, but instead was in close
proximity to him"; Deguerra was "not engaged in nor suspected of
engaging in any violence" or "in any property crime"; there was
"no evidence that [Deguerra] was observed actively using the
glass pipe to ingest methamphetamine" or "consuming illicit drugs
in any way"; there was "no evidence that [Deguerra] was
intoxicated or under the influence of illicit drugs throughout
his entire interaction with Officer Eveland"; and Deguerra
"complied with the traffic stop," "fully complied and cooperated
with Officer Eveland's instructions to step out of the vehicle,
did not attempt to reach for or conceal the pipe or lighter, and
did not resist arrest or struggle in any way."
COLs 9 through 17 present mixed issues of fact and law.
In particular, COLs 10 through 15 and 17 include factual
findings. The State presents no discernible argument as to why
any of the factual findings stated in COLs 10 through 14 are
clearly erroneous. Nor does the State cite any evidence in the
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record that contradicts or undermines any of these findings. To
the extent the State challenges the factual findings stated in
COLs 10 through 14, that argument is deemed waived. See HRAP
Rule 28(b)(7); Hawaii Ventures, LLC v. Otaka, Inc., 114 Hawai#i
438, 478, 164 P.3d 696, 736 (2007) ("an appellate court is not
obliged to address matters for which the appellant has failed to
present discernible arguments").
As to COL 15, the State argues that the Circuit Court's
finding — i.e., "there is no evidence that [Deguerra] was
intoxicated or under the influence of illicit drugs throughout
his entire interaction with Officer Eveland" — is unsupported by
the evidence. However, the State points to no evidence in the
record that contradicts or undermines the Circuit Court's
finding, and we have found none. COL 15 is not clearly
erroneous.
As to the Circuit Court's conclusions that "the facts
of this case are comparable to Enos in many important ways" (COL
9), and that certain facts are "like [those] in Enos" (COLs 10
through 13), the State argues that the Circuit Court "failed to
recognize the significant ways in which [this case] differed
[from Enos]." In particular, the State notes "the dissimilarity
in the amount of methamphetamine recovered on [Deguerra] and
defendant Enos, that is 0.250 grams and 0.005 grams,
respectively[,]" and asserts that "[Deguerra] possessed 50 times
the amount of methamphetamine than defendant Enos[.]" In making
this assertion, however, the State ignores the fact — which it
also does not dispute — that the recovered residue in this case
was determined to be "a substance containing methamphetamine with
a net weight of 0.25 grams." (Emphasis added.) Given that the
purity of the recovered substance is unknown,5/ the State's
5/
In COL 17.d., the Circuit Court found and concluded:
[N]o further analysis was conducted to determine how much of
the residual substance analyzed by [the HPD criminalist] was
in fact methamphetamine. Therefore, it's not known how much
of the 0.25 grams of residual substance actually contained
methamphetamine versus other, unnamed chemical
compounds. . . . Accordingly, without more information,
this Court cannot simply conclude, as a matter of law, that
the residual substance recovered from [Deguerra's] pipe was
(continued...)
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argument lacks an evidentiary basis in the record. Cf. Enos, 147
Hawai#i at 163-64, 465 P.3d at 610-11 ("Morever, even though the
circuit court did not credit the defendant's argument that the
substance containing methamphetamine was not tested for purity,
the form of the drug and the place it was found – residue in a
pipe and a bag – bears on the de minimis analysis"). The Circuit
Court did not err in concluding in COL 9 that "the facts of this
case are comparable to Enos in many important ways[,]" and in
COLs 10 through 13 that the identified facts are "like [those] in
Enos[.]"6/
Considering "the nature of the conduct alleged and the
nature of the attendant circumstances," including the "very small
amount" of residual substance containing methamphetamine found,
it was not an abuse of discretion for the Circuit Court to
conclude that Deguerra's conduct "[d]id not actually cause or
threaten the harm or evil sought to be prevented by [HRS § 712-
243,] or did so only to an extent too trivial to warrant the
condemnation of conviction[.]" Accordingly, COL 16 is not wrong,
and the Circuit Court did not abuse its discretion in dismissing
Count One, pursuant to HRS § 702-236.
5/
(...continued)
indeed 0.25 grams of methamphetamine, or that it could be
"consumed" as such.
Although the State claims to challenge COL 17, it points to no
evidence in the record that contradicts or undermines the factual findings in
COL 17 that underpin the Circuit Court's "several concerns with Detective
Morita's expert conclusions[.]" The State asserts that the last sentence of
COL 17.d. is "unsupported by any evidence in the record[,]" but the last
sentence is supported by the first two sentences, which are in turn supported
by unchallenged FOF 12, as well as the testimony of Detective Morita
confirming that "once [methamphetamine is] smoked, you don't know what the
purity is[.]" Further, the State's argument regarding the amount of residual
substance possessed by Deguerra focuses on its pharmacological or
physiological effect, which, for the reasons discussed above, is not
determinative of a de minimis ruling in these circumstances. COL 17,
including COL 17.d., is not clearly erroneous.
6/
The State also argues that the Circuit Court "did not indicate
whether it applied the 'totality of the circumstances' test announced in State
v. Park," 55 Haw. 610, 525 P.2d 586 (1974), and failed to address all of the
Park factors. This argument was not made below and is thus deemed waived.
See State v. Moses, 102 Hawai#i 449, 456, 77 P.3d 940, 947 (2003) ("As a
general rule, if a party does not raise an argument at trial, that argument
will be deemed to have been waived on appeal[.]"); State v. Hoglund, 71 Haw.
147, 150, 785 P.2d 1311, 1313 (1990) ("Generally, the failure to properly
raise an issue at the trial level precludes a party from raising that issue on
appeal." (citing State v. Cummings, 49 Haw. 522, 423 P.2d 438 (1967))).
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For the reasons discussed above, we affirm the June 18,
2021 "Findings of Fact; Conclusions of Law and Order Granting
Defendant's Motion to Dismiss For De Minimis Violation Filed on
January 29, 2021," entered in the Circuit Court of the First
Circuit.
DATED: Honolulu, Hawai#i, June 16, 2023.
On the briefs:
/s/ Lisa M. Ginoza
Stephen K. Tsushima, Chief Judge
Deputy Prosecuting Attorney,
City & County of Honolulu,
for Plaintiff-Appellant. /s/ Katherine G. Leonard
Associate Judge
Jon N. Ikenaga,
Deputy Public Defender,
for Defendant-Appellee. /s/ Clyde J. Wadsworth
Associate Judge
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