State v. Mundon

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
22-JAN-2025
10:34 AM
Dkt. 65 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I

STATE OF HAWAI#I, Plaintiff-Appellee, v.
CHRISTOPHER MUNDON, Defendant-Appellant.

APPEAL FROM THE CIRCUIT COURT OF THE THIRD CIRCUIT
(CASE NO. 3CPC-XX-XXXXXXX)

SUMMARY DISPOSITION ORDER
(By: Leonard, Acting Chief Judge, Hiraoka, and Guidry, JJ.)

Defendant-Appellant Christopher Mundon (Mundon) appeals

from the March 20, 2024 Judgment of Conviction and Probation

Sentence (Judgment), entered by the Circuit Court of the Third

Circuit (Circuit Court),1 convicting him of Promoting a Dangerous

Drug in the First Degree in violation of Hawaii Revised Statutes
(HRS) § 712-1241(1)(a) (Supp. 2022).

Mundon raises three points of error on appeal,

contending that: (1) the Circuit Court erred in denying his

motion to suppress evidence; (2) the Circuit Court erred in

allowing him to proceed to trial on stipulated facts; and (3) he

1
The Honorable Wendy M. DeWeese presided.
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

received ineffective assistance of trial counsel.

Upon careful review of the record and the briefs

submitted by the parties, and having given due consideration to

the arguments advanced and the issues raised, we resolve Mundon's

points of error as follows:

(1) Mundon argues that the Circuit Court erred when it

denied the motion to suppress because the search warrant for the

white Toyota Tundra (Toyota) was based on an informant's stale

information and the subjective opinions and beliefs of Hawai#i
County Police Department Officer Chandler B. Nacino (Officer

Nacino).

The Circuit Court's ruling on the motion to suppress is

reviewed de novo to determine whether the ruling was right or

wrong. State v. Eleneki, 106 Hawai#i 177, 180, 102 P.3d 1075,

1078 (2004).

"Probable cause exists when the facts and circumstances

within one's knowledge and of which one has reasonably

trustworthy information are sufficient in themselves to warrant a

person of reasonable caution to believe that an offense has been

committed." State v. Detroy, 102 Hawai#i 13, 18, 72 P.3d 485,
490 (2003) (citation and quotation marks omitted).

If the criminal activity is ongoing in nature, the

passage of time between an informant's last observations of that

activity and the issuance of the warrant is less significant than

when no such showing is made in the affidavit. State v. Austria,

55 Haw. 565, 570, 524 P.2d 290, 294 (1974) (citations omitted).

2
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

"Direct evidence that contraband or evidence is at a

particular location is not essential to establish probable cause

to search the location. A magistrate is entitled to draw

reasonable inferences about where evidence is likely to be kept,

based on the nature of the evidence and the type of offense."

United States v. Angulo-Lopez, 791 F.2d 1394, 1399 (9th Cir.

1986) (citations omitted).

In his affidavit for the search warrant, which sought

authorization for the search of Mundon's person, his residence,
and a truck Mundon was known to drive, Officer Nacino stated,

inter alia, that he has been a police officer for approximately

eight years. He averred that "within the last month," a

confidential informant (CI) informed him that Mundon was

distributing cocaine in the Kailua-Kona area. The CI stated that

he/she was a "former user of cocaine," had known Mundon for over

one year, and observed Mundon conduct cocaine sales from his

residence.

Officer Nacino arranged for the CI to make a controlled

purchase of cocaine from Mundon at his residence "within the past

seven (7) days." After the controlled purchase, the CI turned

over the cocaine purchased from Mundon and identified Mundon as

the seller. The CI stated that he/she observed Mundon to keep

his "stash" within a backpack that is either kept on his person

or in his vehicle.

Officer Nacino and vice officers conducted surveillance

on Mundon to learn his day-to-day habits, and observed Mundon to

3
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

operate the Toyota, which was registered to another person.

Officer Nacino attested that based on his training and

experience, it is a common practice for drug dealers/users to

remove controlled substances from their residence, and keep them

on their person to prevent theft of their drugs, and based on his

experience in conducting searches of protected areas, "it is

common practice for heroin, cocaine, methamphetamine, and

marijuana to be stored in outbuildings, storage sheds, vehicles

and containers."
On this record, we conclude that the Circuit Court did

not err in denying Mundon's motion to suppress. The controlled

purchase by the CI within seven days corroborated the reliability

of the CI's information, and that the information was not stale.

Based on the CI's statement that Mundon kept his "stash" within a

backpack that is either kept on his person or in his vehicle, and

Officer Nacino's averments, it was reasonable to infer that

cocaine might be found in the Toyota that Mundon drove.

(2) Mundon argues the Circuit Court erred in accepting

his agreement to a stipulated-facts trial because the Circuit

Court's on-the-record colloquy with him did not include an

explanation of the essential elements of the charged offenses.

Mundon appears to assert that he did not knowingly and

voluntarily waive his fundamental right to challenge the State's

evidence because of the lack of statement of the elements of the

charged offenses during the colloquy.

A trial court is required to engage in colloquy with a

defendant whenever a defendant waives a fundamental right.

4
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

State v. Murray, 116 Hawai#i 3, 12, 169 P.3d 955, 964 (2007)

(citing State v. Ibuos, 75 Haw. 118, 121, 857 P.2d 576, 578

(1993) (involving waiver of right to jury trial); and Tachibana

v. State, 79 Hawai#i 226, 235-36, 900 P.2d 1293, 1302-03 (1995)

(involving waiver of right to testify)). The colloquy is meant

to ensure that the waiver is being made directly by the

defendant, and is a knowing and voluntary waiver. Id.

In the Agreement to Proceed to Trial Upon Stipulated

Facts (Agreement to Proceed), Mundon stipulated to the Circuit

Court's consideration of 110 exhibits from the State for the

purpose(s) of a determination of his guilt or innocence.2

Mundon did not stipulate to any element of the charged

offenses.3 Nonetheless, the exhibits stipulated into evidence

2
The Agreement to Proceed references "118" exhibits, which appears
to be a clerical error as it is undisputed that there were only 110.
3
Mundon was charged with Promoting a Dangerous Drug in the First
Degree in violation of HRS § 712-1241(1)(a) and Attempted Promotion of a
Dangerous Drug in the First Degree in violation of HRS §§ 705-500 (2014) and
712-1241(1)(b)(ii). HRS § 712-1241(1)(a) and (b) states in part:

§ 712-1241 Promoting a dangerous drug in the first
degree. (1) A person commits the offense of promoting a
dangerous drug in the first degree if the person knowingly:
(a) Possesses one or more preparations, compounds,
mixtures, or substances of an aggregate weight
of:

(i) One ounce or more, containing
methamphetamine, heroin, morphine, or
cocaine or any of their respective salts,
isomers, and salts of isomers; or
(ii) One and one-half ounce or more, containing
one or more of any of the other dangerous
drugs;

(b) Distributes:
. . . .

(ii) One or more preparations, compounds,
(continued...)

5
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

were sufficient to support a conviction. Therefore, the Circuit

Court was required to engage in a colloquy with Mundon to ensure

that he understood the constitutional rights which he was waiving

by agreeing to the stipulated-evidence trial. Murray, 116

Hawai#i 3 at 12, 169 P.3d at 964.

The Circuit Court's thorough colloquy with Mundon

demonstrates that Mundon knowingly and voluntarily waived his

3
(...continued)
mixtures, or substances of an aggregate
weight of:

(A) One-eighth ounce or more,
containing methamphetamine,
heroin, morphine, or cocaine
or any of their respective
salts, isomers, and sales of
isomers; or

(B) Three-eights ounce or more,
containing any other dangerous
drug[.]
HRS § 705-500 states:

§ 705-500 Criminal attempt. (1) A person is
guilty of an attempt to commit a crime if the person:
(a) Intentionally engages in conduct which would
constitute the crime if the attendant
circumstances were as the person believes them
to be; or
(b) Intentionally engages in conduct which, under
the circumstances as the person believes them to
be, constitutes a substantial step in a course
of conduct intended to culminate in the person's
commission of the crime.
(2) When causing a particular result is an
element of the crime, a person is guilty of an attempt
to commit the crime if, acting with the state of mind
required to establish liability with respect to the
attendant circumstances specified in the definition of
the crime, the person intentionally engages in conduct
which is a substantial step in a course of conduct
intended or known to cause such a result.
(3) Conduct shall not be considered a substantial
step under this section unless it is strongly corroborative
of the defendant's criminal intent.

6
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

right to challenge the State's evidence, confront witnesses, and

present witnesses in his own defense.

Prior to accepting the Agreement to Proceed, the

Circuit Court properly colloquyed Mundon with respect his waiver

of his rights to be present in person, to a jury trial, and to

testify in his own defense. During these colloquies, Mundon

confirmed, inter alia, that his mind was clear, he was not under

the influence of alcohol, illegal drugs or prescription

medication, he attended two years of college and was able to
speak, read, write and understand English, and he had consulted

with his attorney and was satisfied with the advice and services

provided by his attorney.

In the colloquy regarding the Agreement to Proceed, the

Circuit Court explained to Mundon that by stipulating the

exhibits into evidence, Mundon would be waiving the right to

confront and cross-examine the State's witnesses, the right to

object to the evidence, and the right to call witnesses on his

own behalf. Mundon confirmed that he understood he would be

waiving these rights, he had no questions, no one had promised

him anything or was pressuring, threatening, or forcing him to

agree to a stipulated-facts trial, and he consented to proceeding

with a stipulated-facts trial. Mundon also confirmed that he

read and understood the Agreement to Proceed and discussed it

with his lawyer prior to signing it. We conclude that the

colloquy was not deficient, and the Circuit Court did not err in

accepting the Agreement to Proceed.

7
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

(3) Mundon argues that he received ineffective

assistance of counsel, because his attorney allowed him to waive

most of his fundamental constitutional trial rights, and

presented no defense for him, even though Mundon maintained his

not guilty plea.

A defendant claiming ineffective assistance of counsel

must show that there were specific errors or omissions reflecting

counsel's lack of skill, judgment, or diligence, and the errors

or omissions resulted in the withdrawal or substantial impairment
of a potentially meritorious defense. State v. Yuen, 154 Hawai#i

434, 444, 555 P.3d 121, 131 (2024).

After the Circuit Court ruled that it was denying

Mundon's motion to suppress evidence, trial counsel stated, "I

think that we all know that the basis for this whole case pretty

much is made in these motions," and "a trial in this case really

does nothing to help us in terms of – ultimately, if we're going

to prevail, that we're going to prevail on appeal on these

issues." Trial counsel said he would speak to Mundon about

agreeing to a stipulated-facts trial to avoid wasting time and

his "client's money relative to what we ultimately have to get

to."

Mundon points to no specific errors or omissions that

resulted in the withdrawal or substantial impairment of a

potentially meritorious defense. Additionally, some benefit to

Mundon was derived from the stipulated-facts trial, and the on-

the-record colloquy established that Mundon knowingly and

voluntarily waived his right to confront the State's witnesses,

8
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

challenge the State's evidence, and present witnesses in his own

defense. We conclude that Mundon fails to establish that he

received ineffective assistance of counsel.

For these reasons, the Circuit Court's March 20, 2024

Judgment is affirmed.

DATED: Honolulu, Hawai#i, January 22, 2025.

On the briefs: /s/ Katherine G. Leonard
Acting Chief Judge
Benjamin E. Lowenthal,
Deputy Public Defender,
Office of the Public Defender, /s/ Keith K. Hiraoka
for Defendant-Appellant. Associate Judge

Nathan A Wersal,
Deputy Prosecuting Attorney, /s/ Kimberly T. Guidry
Office of the Prosecuting Associate Judge
Attorney,
for Plaintiff-Appellee.

9