State v. John

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
28-DEC-2020
07:50 AM
Dkt. 41 SO

NO. CAAP-XX-XXXXXXX

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

STATE OF HAWAI#I, Plaintiff-Appellee, v.
RANDY JOHN, ALSO KNOWN AS WELLISON SIGHRA, Defendant-Appellant

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CRIMINAL NO. 1CPC-XX-XXXXXXX)

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

Defendant-Appellant Randy John, aka Wellison Sighra

(John), appeals from the November 28, 2018 Judgment of Conviction

and Probation Sentence; Notice of Entry (Judgment) entered by the

Circuit Court of the First Circuit (Circuit Court).1

John 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)

(Count 1),2 and Theft in the Fourth Degree, in violation of HRS

1
The Honorable Fa#auuga L. To#oto#o presided.
2
HRS § 712-1243 provides:
§ 712-1243 Promoting a dangerous drug in the third
degree. (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.
(continued...)
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§ 708-833(1) (Supp. 2019) (Count 2). John filed a motion to

dismiss Count 1 as de minimis. After a hearing held on July 26,

2018, the Circuit Court denied John's motion, and on March 6,

2019, the Circuit Court entered Findings of Fact, Conclusions of

Law [(COLs)], and Order Denying Defendant's Motion to Dismiss

Felony Information (Order Denying Dismissal). Thereafter, John

pleaded no contest to the charged offenses (reserving his right

to appeal the Order Denying Dismissal), was sentenced, and timely

filed a notice of appeal.
John raises two, related, points of error on appeal,

contending that the Circuit Court erred by not applying the

correct legal standard when it entered the Order Denying

Dismissal, and abused its discretion by not applying the

appropriate facts adduced at the hearing that indicated that the

offense charged in Count 1 was de minimis.

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 by the parties, we

resolve John's points of error as follows:

John primarily contends, citing HRS § 702-236(1)(b)
(2014),3 that the Circuit Court used the wrong legal standard

2
(...continued)
(2) Promoting a dangerous drug in the third degree is
a class C felony.
3
HRS § 702-236 provides, in part:

§ 702-236 De minimis infractions. (1) 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:
(a) Was within a customary license or tolerance,
which was not expressly refused by the person
(continued...)

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because it failed to examine whether the possession of 0.003

grams of a substance containing cocaine "did not actually cause

or threaten the harm or evil sought to be prevented by the law

defining the offense or did so only to an extent too trivial to

warrant the condemnation of conviction."

In State v. Melendez, 146 Hawai#i 391, 395-97, 463 P.3d

1048, 1052-54 (2020), the Hawai#i Supreme Court recently

reiterated that a defendant need not prove that possessed drugs

are incapable of producing any pharmacological or physical
effect, stating, inter alia:
This court has thus consistently held over the past
forty years that when the amount of drugs possessed is
unusable, the violation of HRS § 712-1243 does not cause or
threaten the harm or evil sought to be prevented by the law
defining the offense, and a de minimis dismissal would be
warranted in such circumstances. Although we have declined
to read a usable quantity standard into HRS § 712-1243, it
is clear that if the amount possessed is so minuscule that
it cannot be used in such a way as to have any discernible
effect on the human body, it follows that the drug cannot
lead to abuse, social harm, or property and violent crimes,
i.e., the harm sought to be prevented by HRS § 712-1243.
Under such circumstances, dismissal under HRS § 702-236 is
warranted.
Hence, . . . a defendant's burden on a de minimis
motion for an HRS § 712-1243 violation is not to
specifically prove that the drugs possessed could not have a
pharmacological or physiological effect, but to place all of
the relevant attendant circumstances before the trial court
to establish why dismissal is warranted in light of those
circumstances. When the defendant proves the amount of
drugs possessed is incapable of producing a pharmacological
effect, it is clear the amount is not usable or saleable.
In such cases, in the absence of other circumstances
indicating the violation actually threatened the harm sought

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(...continued)
whose interest was infringed and which is not
inconsistent with the purpose of the law
defining the offense; or
(b) Did not actually cause or threaten the harm or
evil sought to be prevented by the law defining
the offense or did so only to an extent too
trivial to warrant the condemnation of
conviction; or
(c) Presents such other extenuations that it cannot
reasonably be regarded as envisaged by the
legislature in forbidding the offense.

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to be prevented by HRS § 712-1243, de minimis dismissal will
be warranted. But proving that the possessed drugs could
not have a pharmacological effect is not a condition
precedent for de minimis dismissal of a possessory drug
violation. Our decisions firmly establish that if the
amount of drugs possessed is not usable or saleable, the
violation does not engender the harms sought to be prevented
by HRS § 712-1243 absent demonstrable evidence to the
contrary. In sum, if the possessed drugs are neither usable
nor saleable, and the attendant circumstances do not
otherwise demonstrate the defendant's violation caused the
harm HRS § 712-1243 seeks to prevent, de minimis dismissal
is warranted.

Id. at 396-97, 463 P.3d at 1053-54 (emphasis added; citations,

internal quotation marks, and original ellipsis omitted).

Here, in its COLs, the Circuit Court acknowledged that

John was asserting the 0.003 grams of a substance, containing

cocaine, was a de minimis amount that was neither usable nor

saleable. Nevertheless, the Circuit Court did not conclude, one

way or the other, whether the amount of drugs possessed was

usable or saleable, as discussed in Melendez. Instead, the

Circuit Court concluded, inter alia, that: (1) John "has not

provided any evidence of the individualized variables about him

that would enable the court to determine whether the amount of

cocaine in this case was sufficient to produce a pharmacological

action or physiological effect;" and (2) John "was in possession

of 0.003 grams of a substance containing cocaine which was both

visible and capable of analysis." While the Circuit Circuit's

COLs were in part reflective of the legal standards set out in

Melendez and the cases it followed, "visible and capable of

analysis" is not a standard comparable to "usable and saleable,"

and the supreme court expressly stated that "proving that the

possessed drugs could not have a pharmacological effect is not a

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condition precedent for de minimis dismissal of a possessory drug

violation." Melendez, 146 Hawai#i at 397, 463 P.3d at 1054.

Unlike in Melendez, where in the same courthouse, for a

hearing held two months earlier than the hearing in this case,

the State stipulated that 0.005 grams of a substance containing

cocaine was not usable and saleable,4 here there is no

stipulation that 0.003 grams of a substance containing cocaine –

which the expert witness described as barely visible, "like a

spec of -- more than a spec of dust, a couple of particles
maybe" – is not usable and saleable. We nevertheless conclude

that the Circuit Court erred in not reaching the conclusion that

the 0.003 grams of substance possessed by John was not usable and

saleable, based on the record in this case and the case law in

this jurisdiction.

As firmly held in Melendez, "if the amount of drugs

possessed is not usable or saleable, the violation does not

engender the harms sought to be prevented by HRS § 712-1243

absent demonstrable evidence to the contrary." Id. (citations

omitted). Here, the attendant circumstances of this incident

included John having shoplifted two cans of Libby's Vienna

Sausage and a multipack of Spam, with a total value of $11.37.5

While theft at any level constitutes criminal conduct and a

property crime, theft of roughly eleven dollars worth of canned

meat appears equally indicative of poverty, hunger and/or

4
Melendez, 146 Hawai#i at 397, 463 P.3d at 1054.
5
John also had no form of identification and identified himself to
the arresting officer as Wellison Sighra.

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homelessness. We recognize that criminality and substance abuse

may in some instances be associated with these conditions as

well, but we nevertheless conclude that none of the attendant

circumstances in this case undermine a conclusion that John's

possession of an unusable and unsaleable amount of cocaine did

not threaten or cause the harm sought to be prevented by HRS

§ 712-1243. See generally Melendez, 146 Hawai#i at 398, 463 P.3d

at 1055. Accordingly, we conclude that the Circuit Court abused

its discretion in failing to determine that John's possession of
0.003 grams of a substance containing cocaine constituted a de

minimis infraction pursuant to HRS § 702-236.

For these reasons, the Circuit Court's November 28,

2018 Judgment is vacated in part, as to Count 1, and affirmed in

part, as to Count 2. This case is remanded to the Circuit Court

for further proceedings.

DATED: Honolulu, Hawai#i, December 28, 2020.

On the briefs:
/s/ Lisa M. Ginoza
Dana S. Ishibashi, Chief Judge
for Defendant-Appellant.
/s/ Katherine G. Leonard
Stephen K. Tsushima, Associate Judge
Deputy Prosecuting Attorney,
City and County of Honolulu, /s/ Keith K. Hiraoka
for Plaintiff-Appellee. Associate Judge

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