State v. Patubo3/22/2004
Defendant-Appellant Lino Patubo, Jr. (Patubo or Defendant) appeals from the July 23, 2002 Judgment, entered in the Circuit Court of the First Circuit, Judge Sandra A. Simms presiding, convicting him of two counts of Unauthorized Control of Propelled Vehicle, Hawaii Revised Statutes (HRS) § 708-836 (1993); [FN1] one count of Promoting Dangerous Drug in the Second Degree, HRS § 712-1242(1)(b)(i) (1993); [FN2] and one count of Unlawful Use of Drug Paraphernalia, HRS § 329-43.5(a) (1993); [FN3] and sentencing him to concurrent five (5) year terms of probation for each count and to pay a $400 Crime Victim Compensation Fee and $500 for a Drug Demand Reduction Assessment.
FN1. Hawaii Revised Statutes (HRS) § 708-836 (1993) states, in relevant part, as follows:
Unauthorized control of Propelled Vehicle. (1) A person commits the offense of unauthorized control of a propelled vehicle if the person intentionally exerts unauthorized control over another's propelled vehicle by operating the vehicle without the owner's consent or by changing the identity of the vehicle without the owner's consent.
FN2. HRS § 712-1242 (1993) states, in relevant part, as follows:
Promoting a dangerous drug in the second degree. (1) A person commits the offense of promoting a dangerous drug in the second degree if the person knowingly:
(a) Possesses twenty-five or more capsules, tablets, ampules, dosage units, or syrettes, containing one or more dangerous drugs; or
(b) Possesses one or more preparations, compounds, mixtures, or substances of an aggregate weight of: (i) One-eight ounce or more, containing metamphetamine, heroin, morphine, or cocaine or any of their respective salts, isomers, or salt of isomers; or (ii) One-fourth ounce or more, containing any dangerous drug; or
(c) Distributes any dangerous drug in any amount.
(2) Promoting a dangerous drug in the second degree is a class B felony.
FN3. HRS § 329-43.5(a) (1993) states as follows:
Prohibited acts related to drug paraphernalia. (a) It is unlawful for any person to use, or to possess with intent to use, drug paraphernalia to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain, conceal, inject, ingest, inhale, or otherwise introduce into the human body
a controlled substance in violation of this chapter. Any person who violates this section is guilty of a class C felony and upon conviction may be imprisoned pursuant to section 706-660 and, if appropriate as provided in section 706-641, fined pursuant to section 706-640.
On appeal, Patubo asserts the following points of error:
(1) at the motion to suppress hearing, the circuit court made erroneous findings of facts in FOF 15, 17, 18, 19 and 20;
(2) the court made an erroneous conclusion of law in Conclusion of Law # 1;
(3) at trial, the prosecutor made reference to an illegal, unlicensed business; and thus deprived Patubo of a fair trial; and
(4) the prosecutor improperly asked Patubo whether prosecution witnesses were lying and therefore, deprived Patubo of a fair trial.
We affirm.
BACKGROUND
A. Factual Background
On January 21, 1999, Police Officer Ron Pinho-Goldman (Officer Pinho-Goldman) was patrolling his area at around 1:41 p.m. when he noticed that a "red four-door Toyota Camry was parked facing the wrong direction and blocking a fire hydrant, and ... what appeared to be a garden hose sticking out of the gas tank." When Officer Pinho-Goldman ran a check on the red Toyota's license plate, which was "FPU 263", he was informed the license plate belonged to "an ' 85 Ford multipurpose vehicle, blue." He noticed that the ignition had been "punched" [FN4] and made a call request
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