State v. KAPAHUA

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NOT FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER

. NO. 29839
IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI'I

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Plaintiff-Appellee, v.

STATE OF HAWAI'I,
ALVIN J. K. KAPAHUA, JUR., Defendant -Appel lan
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APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT

(CR. NO. 08-1-0366)
SUMMARY DISPOSITION ORDER
(By: Nakamura, C.J., Foley and Fujise, JJ.)
Jr. (Kapahua)

Defendant-Appellant Alvin J. K. Kapahua,
appeals from the Judgment of Conviction and Sentence filed on
April 27, 2009 in the Circuit Court of the First Circuit (circuit
court) .*

A jury convicted Kapahua of Unlawful Use of Drug
Paraphernalia, in violation of Hawaii Revised Statutes (HRS).

(1993), and Driving Without a License, in violation

§ 329-43,5(a)
of HRS § 286-102 (2007 Repl.).
(1) the circuit court

On appeal, Kapahua contends
plainly erred by not providing the jury with a unanimity

instruction on the charge of Unlawful Use of Drug Paraphernalia,
(2) there was insufficient evidence to convict him of Unlawful
Use of Drug Paraphernalia, and (3) the circuit court plainly

erred by sentencing him to one year of imprisonment on the

Driving Without a License charge.
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, as
well as the relevant statutory and case law, we resolve Kapahua's

points of error as follows:

1 The Honorable Randall K. ©. Lee presided.
NOT FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER

(1) The circuit court did not plainly err by failing
to provide the jury with a unanimity instruction. Kapahua was
charged with use or possession with intent to use drug

paraphernalia on March 8, 2008. The jury was instructed that the

prosecution had to prove beyond a reasonable doubt that on

March 8, 2008 Kapahua possessed an object with the intent to use

it to ingest, inhale or introduce into the human body a
controlled substance and the object was drug paraphernalia.
Therefore, the jury could not have convicted Kapahua based on
Kapahua's admission to use of drug paraphernalia on March 4,
2008,

(2) Kapahua claims there was insufficient evidence to
convict him of Unlawful Use of Drug Paraphernalia because the
State failed to prove the intent element of the offense. There
was sufficient evidence to convict Kapahua of Unlawful Use of

Drug Paraphernalia.

Given the difficulty of proving the requisite state of
mind by direct evidence in criminal cases, "we have
consistently held that proof by circumstantial
evidence and reasonable inferences arising from
circumstances surrounding the defendant's conduct is
sufficient. Thus, the mind of an alleged offender
maybe read from his acts, conduct and inferences

fairly drawn from all the circumstances." State v.
Sadino, 64 Haw. 427, 430, 642 P.2d 534, 536-37 (1982)
(citations omitted); see also State v. Simpson, 64

Haw. 363, 373 n.7, 641 P.2d 320, 326 n.7 (1982).

State v. Mitsuda, 86 Hawai‘i 37, 44, 947 P.2d 349, 356
(1997) [.]

State v. Stocker, 90 Hawai'i 85, 92, 976 P.2d 399, 406 (1999)

(ellipses and brackets omitted).

(3) The State concedes that the circuit court erred by
sentencing Kapahua to one year of imprisonment on Count IV. The
State presented no evidence that Kapahua had been previously
convicted two or more times of Driving Without a License within
the preceding five-year period, which was necessary to sentence
Kapahua pursuant to HRS § 286-136(b) (2007 Repl.). Hence,
Kapahua was only subject to a maximum of thirty days of

imprisonment pursuant to HRS § 286-136(a) (2007 Repl.).

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

Therefore,

The Judgment of Conviction and Sentence filed on
April 27, 2009 in the Circuit Court of the First Circuit is
vacated only as to Kapahua's sentence for Count IV, and Kapahua's
sentence for Count IV is remanded for re-sentencing pursuant to
HRS § 286-136(a). Count III and the remainder of the Judgment of
Conviction and Sentence are affirmed.

DATED: Honolulu, Hawai‘i, April 8, 2010.
On the briefs:
Taryn R. Tomasa,
Deputy Public Defender, fi Af Vo Z
for. Defendant-Appellant. ‘

Chief Judge

Delanie D. Prescott-Tate,

Deputy Prosecuting Attorney,
City and County of Honolulu,

for Plaintiftf-Appellee. (DP T

Associate Judge

BIB

Associate Jud