State v. Fukagawa12/30/2002
MOON, C.J., LEVINSON, AND NAKAYAMA, JJ.; RAMIL, J., DISSENTING; AND ACOBA, J., DISSENTING
Defendant-appellant Ivan Fukagawa appeals from the judgment of conviction and sentence of the Circuit Court of the Second Circuit, adjudging him guilty of: (1) driving under the influence of intoxicating liquor, in violation of Hawaii Revised Statutes (HRS) § 291-4 (Supp. 1998) (Count One); (2) promoting a dangerous drug in the third degree, in violation of HRS § 712-1243(1) (1993 & Supp. 1998) (Count Two); and (3) prohibited acts relating to drug paraphernalia, in violation of HRS § 329-43.5(a) (1993) (Count Three). Fukagawa claims that the motions court, the Honorable Shackley F. Raffetto presiding, erred in denying his motion to dismiss the charge of promoting a dangerous drug in the third degree. Specifically, Fukagawa alleges that the motions court erred by: (1) admitting the testimony of the prosecution's witness, who indicated that the crystal methamphetamine residue recovered from Fukagawa's pipe may have contained a usable amount of the drug; and (2) denying Fukagawa's motion to dismiss the charge as a de minimis infraction, pursuant to Hawaii Revised Statutes (HRS) § 702-236 (1993). For the reasons discussed below, we affirm the order denying Fukagawa's motion to dismiss and the judgment of conviction and sentence of the circuit court.
I. BACKGROUND
On January 15, 1999, Fukagawa was charged by indictment with driving under the influence of intoxicating liquor, promoting a dangerous drug in the third degree, and prohibited acts relating to drug paraphernalia. On June 14, 1999, Fukagawa filed a motion to dismiss the charge of promoting a dangerous drug in the third degree, asserting that the charge constituted a de minimis infraction. A hearing on the motion was held on July 1, 1999.
At the outset of the hearing on Fukagawa's motion, the parties stipulated to the admission of the Maui Police Crime Laboratory Analysis Report Number 98-14511 (identified as "State's Exhibit 1"), prepared by Julie Wood, which indicated that the substance recovered from a glass pipe in Fukagawa's possession weighed .018 grams and contained methamphetamine. The parties also agreed that,
if Julie Wood were called to testify, she would testify she followed normal accepted procedures in determining the information on this report, and that the pipe recovered under Maui Police Department Report Number 98-14511, after was tested there was .018 grams of crystal methamphetamine determined to be in that pipe, and it was visible to the naked eye.
The defense called George Wesley Read, Ph.D., a professor of pharmacology, to testify on its behalf. Read was qualified as an expert in the field of pharmacology. Read testified, inter alia, that " ethamphetamine has at least three currently-accepted uses and possibly a fourth." According to Read, methamphetamine has been used to treat obesity, narcolepsy, attention deficit hyperactive disorder (ADHD), and fatigue. Based upon his review of the available literature, Read testified that ranges of methamphetamine dosages used to treat obesity, narcolepsy, ADHD, and fatigue are: .01 to .04 grams; .05 to .06 grams; .005 to .015 grams; and .01 to .04 grams, respectively.
With respect to the abuse of methamphetamine -- i.e., use of the drug to achieve "euphoria and elation," -- Read testified that a "naive user" would use between .05 and .1 grams. When asked about the purity of drugs obtained on the street, Read explained that
there are papers in the technical literature that describe the purity, and it can be very impure, but often might be fifty percent of what is sold might be salt, but it can vary d
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