State v. Zuffante

NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
18-SEP-2024
08:04 AM
Dkt. 62 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

STATE OF HAWAI#I, Plaintiff-Appellee, v.
CHARLES ZUFFANTE, Defendant-Appellant

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

SUMMARY DISPOSITION ORDER
(By: Leonard, Acting C.J., and Wadsworth and McCullen, JJ.)

Defendant-Appellant Charles Zuffante (Zuffante) appeals
from the First Amended Judgment of Conviction and Sentence
(Judgment), entered on April 6, 2023, in the Circuit Court of the
Third Circuit (Circuit Court).1/ Following a jury trial, Zuffante
was convicted of Attempted Promotion of a Dangerous Drug in the
First Degree, in violation of Hawaii Revised Statutes (HRS)
§ 705-5002/ and 712-1241(1)(b)(ii).3/

1/
The Honorable Robert D.S. Kim presided.
2/
HRS § 705-500 (2014) provides:

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
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On appeal, Zuffante contends that the Circuit Court
erred or, as to his second point of error, abused its discretion
in: (1) entering the September 14, 2022 "Findings of Facts and
Conclusions of Law Re: State's Motion to Determine Voluntariness
of [Zuffante's] Statements" (FOFs/COLs) "because the statements
were made during custodial interrogation and were not recorded or
witnessed by anyone other than [Hawai#i County Police Department
(HCPD) Officer Justin] Gaspar [(Officer Gaspar)] and [Zuffante]";
(2) denying Zuffante's November 10, 2022 motion in limine no. 2
(MIL 2) "because the proper administration of criminal justice in
the State of Hawai#i compels adoption of the State of Alaska's
'Stephan Rule'"; (3) "find[ing] that [Zuffante's] waiver of the
right not to testify was a voluntary waiver"; (4) denying
Zuffante's motion to quash Count 2 of the April 13, 2022
Indictment "because the charge is defective"; (5) denying
Zuffante's oral motion to acquit on Count 2 "because [the] State

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.
3/
HRS § 712-1241(1)(b)(ii) (Supp. 2016) provides:

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:
. . . .
(b) Distributes:

. . . .
(ii) One or more preparations, compounds,
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 salts
of isomers; or
(B) Three-eighths ounce or more,
containing any other dangerous
drug[.]

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did not put on any evidence that [Zuffante] attempted to
distribute the recovered methamphetamine"; and (6) denying
Zuffante's oral motion to acquit on Count 2 "because there was
insufficient evidence for the jury . . . to find [Zuffante]
knowingly possessed the fanny pack or its content."
After reviewing the record on appeal and the relevant
legal authorities, and giving due consideration to the issues
raised and the arguments advanced by the parties, we resolve
Zuffante's contentions as follows, and affirm.
(1) through (3) Zuffante's first three points of error
concern statements he allegedly made to Officer Gaspar during a
custodial interrogation that occurred after Zuffante was arrested
and advised of his Miranda rights, and which was not recorded.
First, Zuffante contends that the Circuit Court erred in
concluding that Zuffante waived his Miranda rights and
voluntarily made the statements, because the interrogation was
not recorded or independently witnessed, "rendering [Officer]
Gaspar's testimony on the matter unreliable and untrustworthy."4/
Second, Zuffante contends that the Circuit Court abused its

4/
Relatedly, Zuffante argues that the court erred in entering FOFs
103, 113, 114 and COL 30. These FOFs and COL state:

103. At this time the recording device for the interview
room was not working through no fault of Officer Gaspar.

. . . .

113. Defendant was not threatened, forced, coerced, nor
promises made to him to waive his rights to an attorney
and to remain silent, nor were any threats, force,
coercion, or promises made to him inducing him to make
a statement.

114. In summary, Defendant then gave a statement indicating
that everything was his, that all the meth was his.
That he buys a pound of meth and sells them in eight
ball. Defendant told Officer Gaspar the price in which
he buys, sells "meth", and his profit.

. . . .
30.At that time, after being read the form, Defendant waived
his Miranda rights and warnings intelligently, knowingly
and voluntarily and voluntarily spoke with Officer Gaspar.
Zuffante challenges these FOFs and COL based entirely on the absence of "any
evidence independent of [Officer Gaspar's] own testimony" supporting them.
He does not contend there is not otherwise substantial evidence supporting
them based on Officer Gaspar's testimony.

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discretion in denying his Motion in Limine No. 2 by failing to
adopt the so-called "Stephan Rule." In Stephan v. Alaska, 711
P.2d 1156, 1158 (Alaska 1985), the Alaska Supreme Court held that
in order to be admissible under the due process clause of the
Alaska State Constitution, custodial confessions must be recorded
when the interrogation occurs in a place of detention and
recording is feasible. See State v. Kekona, 77 Hawai#i 403, 408-
09, 886 P.2d 740, 745-46 (1994) (describing the Stephan holding
and concluding that the due process clause of the Hawai#i
Constitution does not require such a recording practice). Third,
Zuffante contends that the Circuit Court, having allowed Officer
Gaspar to testify as to Zuffante's statements during the
custodial interrogation, erred in finding that Zuffante
voluntarily waived his right not to testify, because Zuffante was
left with no choice but to testify in order to rebut Officer
Gaspar's testimony.
As to Zuffante's second contention (supra), the State
argues that Zuffante failed to properly preserve, and thus
waived, the issue for appeal, because the denial of the motion in
limine was not an unequivocal holding concerning the issue
raised, and Zuffante did not object at trial to Officer Gaspar's
testimony about Zuffante's statements to him, or cross-examine
Officer Gaspar on whether other means of recording the
interrogation existed. In his reply brief, Zuffante agrees that
he "failed to properly preserve the issue [re admitting [his]
statements at trial] for review[,]" and attributes this failure
to ineffective assistance of his trial counsel.
As to the State's waiver argument, we look to
Kobashigawa v. Silva, 129 Hawai#i 313, 300 P.3d 579, (2013), for
guidance. There, the supreme court explained: "The denial of a
motion in limine, in itself, is not a reversible error. The
harm, if any, occurs when the evidence is improperly admitted at
trial." Id. at 320, 300 P.3d at 586 (quoting State v. Eid, 126
Hawai#i 430, 440, 272 P.3d 1197, 1207 (2012)). Accordingly,
"when a motion in limine to exclude evidence is simply denied
without a ruling on admissibility and the evidence is
subsequently introduced by the opposing party during trial, a

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proper objection at that time is necessary to preserve the error
for appellate review." Id. at 322, 300 P.3d at 588 (quoting
Lussier v. Mau-Van Dev., Inc., 4 Haw. App. 359, 393, 667 P.2d
804, 826 (1983)) (internal quotations marks omitted). However,
"objections need not be renewed if the prior ruling on the motion
in limine amounted to an unequivocal holding concerning the issue
raised." Id. (quoting Lussier, 4 Haw. App. at 393, 667 P.2d at
826).
In his MIL 2, Zuffante sought an order precluding the
testimony of Officer Gaspar concerning the alleged custodial
statements made by Zuffante on the bases that: (1) the
statements were uncorroborated (because they were unrecorded);
and (2) due process compelled adoption of the Stephan rule. The
Circuit Court denied the motion without prejudice, stating in
part: "Mr. Zuffante has the ability at trial if he chooses to
contradict any statements made by Officer Gaspar, and the Defense
is free to discuss the lack of a recording. However, there is no
contradictory evidence presented for the Court to basically
consider, and that's why I say without prejudice . . . ."
(Formatting altered.) The court did not mention the Stephan
rule. On this record, we cannot say that the Circuit Court's
denial of MIL 2 without prejudice constituted an unequivocal
holding rejecting the adoption or applicability of the Stephan
rule in these circumstances. Thus, by failing to object at trial
to Officer Gaspar's testimony about Zuffante's statements,
Zuffante failed to preserve his current contention that the
Circuit erred in denying his MIL 2 by failing to adopt the
Stephan rule.
As noted above, Zuffante argues in his reply brief that
his trial counsel was ineffective in failing to properly preserve
this issue. In State v. Yuen, No. SCWC-XX-XXXXXXX, 2024 WL
3873948 (Haw. Aug. 20, 2024), the supreme court recently
addressed an ineffective assistance claim that was raised in the
defendant's opening brief. See id. at *6. The court held in
part:

[I]f new appellate counsel on direct appeal fails to serve
an ineffective assistance claim on trial counsel, the
appellate court must order counsel to do so and provide

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trial counsel with a reasonable opportunity to respond. The
appellate court is to address the ineffective assistance
claim based on the record after that opportunity has been
provided instead of denying an ineffective assistance claim
without prejudice to a HRPP Rule 40 petition.

Id. at *13.
Here, unlike the situation in Yuen, Zuffante's trial
counsel was properly served with Zuffante's ineffective
assistance claim. Indeed, Zuffante's appellate counsel was his
trial counsel, and appears to have served herself, as well as the
State, with a copy of Zuffante's reply brief. The dispositive
circumstance here, however, which also distinguishes this case
from Yuen, is that Zuffante did not raise an ineffective
assistance claim in his opening brief; he waited for his reply
brief, to which the State could not respond. We thus decline to
address Zuffante's late ineffective assistance claim consistent
with established law. See State v. Mark, 123 Hawai#i 205, 230,
231 P.3d 478, 503 (2010) (citing In re Hawaiian Flour Mills,
Inc., 76 Hawai#i 1, 14 n.5, 868 P.2d 419, 432 n.5 (1994), and
Hawai#i Rule of Appellate Procedure (HRAP) Rule 28(d)). Given
the unusual circumstances here, our decision is without prejudice
to Zuffante's right to file a related post-conviction petition
under Hawai#i Rules of Penal Procedure (HRPP) Rule 40.
As to Zuffante's first contention – that the Circuit
Court erred in concluding that Zuffante voluntarily made the
alleged custodial statements to Officer Gaspar – the State argues
that Zuffante's partial opposition to the State's motion to
determine voluntariness "did not address the voluntariness of the
statements that were opposed, but instead argued that the lack of
the audio or video recording of the interrogation equated to a
lack of procedural safeguards effective to securing the privilege
against self-incrimination, referring to State v. Kazanas, 138
Hawai#i 23, 34, 375 P.3d 1261, 1272 (2016)." The State further
argues that substantial evidence supported the Circuit Court's
determination of voluntariness, based on Officer Gaspar's
testimony at the voluntariness hearing and Zuffante's failure to
present any evidence to dispute that testimony. In his reply
brief, Zuffante appears to attribute this and other alleged
failures to the ineffective assistance of his trial counsel.

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On this record, we conclude that the Circuit Court did
not err in COL 30 in concluding that Zuffante "waived his Miranda
rights and warnings intelligently, knowingly and voluntarily and
voluntarily spoke with Officer Gaspar." (Underlining added.) At
the voluntariness hearing, Officer Gaspar testified that on the
day of Zuffante's custodial interrogation, the recording device
in the HCPD interview room was not working. Officer Gaspar
confirmed this was not "[his] fault[.]" On cross examination,
Zuffante did not challenge that assertion or ask if there was any
feasible alternative means to record the interview. Officer
Gaspar further testified that he advised Zuffante of his Miranda
rights and warnings using the Hawai#i Police Department Advice of
Rights form, and that Zuffante indicated he understood his
Miranda rights, did not want a lawyer present, and was willing to
make a statement to the police. Zuffante did not testify at the
voluntariness hearing or any related motion to suppress,5/ did not
present any other evidence supporting his current contention that
Officer Gaspar's testimony was "unreliable and untrustworthy,"
and did not present any other witnesses to dispute any of the
State's witnesses. "It is well-settled that an appellate court
will not pass upon issues dependent upon the credibility of
witnesses and the weight of evidence; this is the province of the
trier of fact." Fisher v. Fisher, 111 Hawai#i 41, 46, 137 P.3d
355, 360 (2006) (quoting In re Doe, 95 Hawai#i 183, 190, 20 P.3d
616, 623 (2001)). In sum, Zuffante did not show that he was
denied any procedural safeguard discussed in Kazanas, and the
Circuit Court did not err in determining that Zuffante
voluntarily made the alleged custodial statements to Officer
Gaspar.6/
Further, we decline to address Zuffante's related
ineffective assistance claim, made for the first time in his
reply brief, for the reasons previously stated, and without

5/
See Simmons v. United States, 390 U.S. 377 (1968), and United
State v. Salvucci, 448 U.S. 83, 88 (1980) (noting that Simmons "held that
testimony given by a defendant in support of a motion to suppress cannot be
admitted as evidence of his [or her] guilt at trial.").
6/
We further conclude that COLS 103, 113, and 114 are supported by
substantial evidence and are not clearly erroneous.

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prejudice to his right to file a post-conviction petition under
HRPP Rule 40. See Mark, 123 Hawai#i at 230, 983 P.3d at 503.
As to Zuffante's third contention – that he was
essentially forced to testify – the State argues that this claim
is without merit because "[Zuffante] failed to challenge the
interrogation at pre-trial and could have testified at a pre-
trial motion while still asserting [his] right to remain silent
at trial." In his reply brief, Zuffante agrees that he did not
move to suppress the statements at issue or otherwise challenge
the reliability of Officer Gaspar's testimony at the
voluntariness hearing, and asserts that his "[trial c]ounsel's
failure coerced [his] election to give up his right to remain
silent and coerced his election to testify at trial."
Based on our review of the record, including the
relevant Tachibana colloquies, which Zuffante does not challenge,
we cannot conclude that the Circuit Court erred in finding that
Zuffante knowingly, voluntarily, and intelligently waived his
right not to testify. Again, we decline to address Zuffante's
ineffective assistance claim, made for the first time in his
reply brief, for the reasons previously stated, and without
prejudice to his right to file a post-conviction petition under
HRPP Rule 40. See Mark, 123 Hawai#i at 230, 983 P.3d at 503.
(4) Zuffante contends that the Circuit Court erred in
denying his motion to quash Count 2 of the Indictment – for
Attempted Promotion of a Dangerous Drug in the First Degree –
"because the charge is defective."
Count 2 states:

On or about October 20, 2021, in Kona, within the
County and State of Hawai#i, CHARLES ZUFFANTE intentionally
engaged in conduct, possessing methamphetamine and/or scale
and/or zip packets, which, under the circumstances as he
believed them to be, constituted a substantial step in the
course of conduct intended to culminate in his commission of
the crime of Promoting a Dangerous Drug in the First Degree
,[sic] said crime being distributed [sic] one or more
preparations, compounds, mixtures, or substances of an
aggregate weight of [(crossed out text with initials)]
one-eighth ounce or more, containing methamphetamine,
heroin, morphine, or cocaine or any of their respective
salts, isomers, and salts of isomers, that is,
methamphetamine,,[sic] thereby committing the offense of
Attempted Promotion of a Dangerous Drug in the First Degree,
in violation of Sections 705-500 and 712-1241(1)(b)(ii),
Hawai#i Revised Statutes, as amended.

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It is difficult to discern exactly what "defect" in
Count 2 Zuffante challenges on appeal. He argues that Count 2
does not allege that he took a substantial step intended to
"distribute," as defined by HRS § 712-1240, the required amount
of methamphetamine, "and clearly unclearly charges, 'said crime
being distributed,' . . . a completed crime[,]" and thus "failed
to allege a fact of inchoate conduct . . . ." (Emphasis in
original.) Thus, it appears that Zuffante is challenging the use
of the past participle form of the word "distributed," instead of
the present participle form "distributing," in Count 2.
This is not the argument that Zuffante made in his
motion to quash Count 2. There, he contended that Count 2 should
be dismissed because it did "not allege [that he] attempted to
distribute any dangerous drug." (Capitalization altered.) In
quoting Count 2, Zuffante inserted the word "sic" after the word
"distributed," indicating he understood that the word contained a
grammatical form error. Then, relying on State v. Ugalino, 107
Hawai#i 144, 111 P.3d 39 (2005), Zuffante argued that Count 2 did
not allege that he committed an act of attempted distribution,
e.g., negotiating or offering to sell the drug. He thus waived
any argument based on the form of the word "distribute" in Count
2. In any event, we conclude that Count 2 sufficiently alleged
all of the essential elements of the offense charged so as to
sufficiently apprise Zuffante of what he had to be prepared to
meet. See State v. Jardine, 151 Hawai#i 96, 100, 508 P.3d 1182,
1186 (2022) (quoting State v. Merino, 81 Hawai#i 198, 212, 915
P.2d 672, 686 (1996)).
(5) and (6) Relying primarily on Ugalino, Zuffante
contends that the Circuit Court erred in denying his oral motion
to acquit on Count 2, because there was insufficient evidence
for the jury to find that he attempted to distribute the
recovered methamphetamine and/or that he knowingly possessed the
recovered fanny pack or its content. In Ugalino, this court
ruled there was insufficient evidence adduced at trial to show
that the defendant took a substantial step toward distribution of
at least one-eighth ounce (3.5 grams) of the methamphetamine in
his possession. 107 Hawai#i at 158-59, 111 P.3d at 53-54.

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In order to convict Zuffante of the attempted
distribution of methamphetamine charged in Count 2, the State was
required to prove beyond a reasonable doubt that Zuffante
intentionally engaged in conduct constituting "a substantial step
in the course of conduct intended to culminate" in the
distribution of at least one-eighth ounce of methamphetamine.
See HRS §§ 705-500, 712-1241(1)(b)(ii); Ugalino, 107 Hawai#i at
158, 111 P.3d at 53.
Here, the evidence at trial showed that when Zuffante
was arrested, the police recovered, among other things: (1) from
Zuffante's person, a one-gallon zip-lock bag containing (a) a
white crystalline substance later determined to be
methamphetamine, and (b) a two-by-two-inch pink zip packet
containing a white crystalline substance, later determined to be
methamphetamine – with a total weight of approximately 3.9 grams;
and (2) from the vehicle in which Zuffante was found, a fanny
pack containing sixteen small zip packets, including multiple
packets containing approximately 3.5 grams of methamphetamine.
Additionally, Officer Gaspar testified that Zuffante told him
that: (1) "[e]verything found in the car was his" and confirmed
that "the items within the fanny pack were his"; (2) "[Zuffante]
spends $7,000 for a pound of meth at a time, and he breaks it
down into eight-ball7/ increments"; and (3) "[Zufante] sells the
crystal methamphetamine . . . in eight-ball increments . . . for
$150 a piece." (Footnote added.) There was no evidence
presented that Zuffante was a methamphetamine user or that any of
the methamphetamine recovered would be personally consumed. In
sum, the evidence presented at trial in this case is clearly
distinguishable from that found insufficient in Ugalino.
Viewing the evidence in the light most favorable to the
prosecution, and in full recognition of the jury's right to
determine credibility, weigh the evidence, and draw reasonable
inferences of fact, we conclude there was sufficient evidence to
support a prima facie case so that a reasonable mind might fairly
conclude that Zuffante was guilty beyond a reasonable doubt of

7/
Officer Gaspar testified that an "eight-ball" is "street
vernacular" for an eighth of an ounce, which is 3.5 grams.

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