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Electronically Filed
Supreme Court
SCWC-29799
31-JUL-2012
09:03 AM
IN THE SUPREME COURT OF THE STATE OF HAWAI#I
---o0o---
STATE OF HAWAI#I,
Respondent/Plaintiff-Appellant,
vs.
RAYMOND L. FOSTER, also known as “RAY,”
Petitioner/Defendant-Appellee.
NO. SCWC-29799
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(ICA NO. 29799; CR. NO. 06-1-0449)
JULY 31, 2012
RECKTENWALD, C.J., NAKAYAMA, AND MCKENNA, JJ.,
AND CIRCUIT JUDGE LEE, IN PLACE OF DUFFY, J., RECUSED;
WITH ACOBA, J., CONCURRING SEPARATELY
OPINION OF THE COURT BY NAKAYAMA, J.
In this case we hold that mere proximity and power to
exercise control over contraband are insufficient to sustain a
conviction for possession absent evidence of intent.
Petitioner/Defendant-Appellee Raymond L. Foster was found guilty
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by a jury of, inter alia, one count of being a felon in
possession of a firearm and one count of being a felon in
possession of ammunition. Following the jury verdict, the
Circuit Court of the Second Circuit1 granted Foster’s renewed
motion for judgment of acquittal on those two counts, concluding
that the evidence adduced at trial did not establish that Foster
had the requisite intent to exercise dominion and control over
the subject firearm and ammunition. On appeal by
Respondent/Plaintiff-Appellant State of Hawai#i, the Intermediate
Court of Appeals (“ICA”) concluded that there was sufficient
evidence of intent, vacated the circuit court’s order granting
Foster’s renewed motion for judgment of acquittal, and remanded
for resentencing based on the jury’s guilty verdicts. We
accepted Foster’s application for writ of certiorari to consider
his contention that the ICA’s decision was inconsistent with the
law of constructive possession in this jurisdiction, and we now
conclude that the ICA erred in vacating the circuit court’s order
granting Foster’s renewed motion for acquittal of both the
firearm and ammunition charges. In light of the countervailing
evidence in the record demonstrating that the firearm and
ammunition were in the possession of Foster’s passenger Phillip
Malano, we hold that Foster’s ownership of the vehicle involved
1
The Honorable Joel E. August presided.
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and his proximity to the items at the time of arrest were,
without more, insufficient to establish his intent to exercise
dominion and control over the items and thus his constructive
possession of them. Accordingly, we vacate the judgment of the
ICA and reinstate the circuit court’s order granting Foster’s
renewed motion for judgment of acquittal of the firearm and
ammunition charges.
I. BACKGROUND
A. Factual Background
At around 2:05 a.m. on August 27, 2006, Department of
Land and Natural Resources (“DLNR”) conservation enforcement
officers Larry Pacheco and John Yamamoto were patrolling for
illegal night hunting on the Pi#ilani Highway, located in the
County of Maui. At that time, Pacheco and Yamamoto were driving
toward the remote Kaupo area and saw a vehicle coming from that
direction, as well as “a bright strong light moving back and
forth, which might be an indicator of night hunting.” Pacheco
and Yamamoto used their DLNR vehicle to block the lane of travel
heading back toward town and flagged down the vehicle, “a white
two-door Toyota 4Runner[,]” as it approached; it stopped
approximately twenty to twenty-five yards in front of them. The
officers then approached the vehicle, and Yamamoto “heard a sound
like a hunting rifle type slide chamber.” There were four people
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in the 4Runner: Foster in the driver’s seat, Malano in the front
passenger seat, Wendy Gonsalves in the rear on the driver’s side,
and Malia Saunders in the rear on the passenger’s side. Pacheco
approached the 4Runner on the passenger’s side and “saw an
ammunition clip [i]n the center between the driver and passenger
on the seat.” Pacheco and Yamamoto then ordered all four people
out of the 4Runner; Pacheco handcuffed Foster and conducted a pat
down search but did not find any ammunition on Foster’s person.
In order for the rear seat passengers to exit the
4Runner, Yamamoto slid the front passenger seat forward; at that
time he observed a rifle “on the floor panel fronting Malia
Saunders.” Pacheco also testified that the rifle “was on the
floor panel of the foot area fronting Saunders, and it was not
under the front passenger’s seat.” During the stop, Pacheco also
confirmed that Foster was the registered owner of the 4Runner and
that Malano had an outstanding arrest warrant.
Foster agreed to make a statement to Pacheco after
being advised of and waiving his constitutional rights. Foster
said that he picked up Malano earlier in the evening and that
Malano had a black ukulele case with him. The two men then
picked up Saunders and Gonsalves and headed toward Kaupo. In the
Kanaio area, “Malano needed to take a break, and Foster pulled
over on the side of the road.” Malano then got out of the
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vehicle, took a rifle from the ukulele case,2 and fired several
rounds. After Malano got back in the 4Runner, they started
driving back toward town.
Foster and Malano were arrested by the Maui Police
Department (“MPD”) officers whom Pacheco and Yamamoto had called
for assistance, and Saunders and Gonsalves were released.
Saunders and Gonsalves were interviewed by MPD Officer Kenneth
Doyle the next day and, after being advised of their
constitutional rights, both gave verbal and signed written
statements.
The Maui grand jury returned an indictment on September
1, 2006, charging Foster with committing, inter alia,3 the
offenses of Ownership or Possession Prohibited of Any Firearm, in
violation of Hawai#i Revised Statutes (HRS) § 134-7(b) and/or
(h), and Ownership or Possession Prohibited of Firearm
Ammunition, in violation of HRS § 134-7(b) and/or (h).4 Jury
2
According to the record, the rifle was a MAK-90 semiautomatic
assault rifle. Counsel for the State noted at oral argument that the rifle
would probably fit in a typical ukulele case.
3
Foster was also charged with several drug offenses. The circuit
court granted the State’s motion to dismiss some of those charges, and Foster
was convicted of the remaining charges. Foster appealed his conviction on
those remaining drug charges based on the circuit court’s denial of his motion
to suppress evidence obtained by Pacheco and Yamamoto during the stop, and the
ICA affirmed. State v. Foster, No. 30039, 125 Hawai#i 252, 258 P.3d 949,
2011
WL 3848009 (App. Aug. 31, 2011) (SDO). An application for writ of certiorari
was not filed in No. 30039.
4
HRS § 134-7 (Supp. 2005) provided then, as it does now, in
pertinent part:
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trial commenced on January 12, 2009.
B. Relevant Trial Proceedings
After the State’s case in chief, which consisted of
testimony from DLNR Officers Pacheco and Yamamoto, MPD Officer
Doyle, and MPD Sergeant Barry Aoki,5 Foster moved orally for
judgment of acquittal as to the firearm and ammunition charges.
The court denied the motion but indicated that “certainly there
are some questions with regard to the charges regarding the
weapon itself.” Both Saunders and Gonsalves chose not to
testify, asserting their Fifth Amendment rights against self-
incrimination; the court then allowed defense counsel to read
portions of their written statements into evidence. According to
the portions of these statements read into evidence, the four
4
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(b) No person who is under indictment for, or has waived
indictment for, or has been bound over to the circuit court
for, or has been convicted in this State or elsewhere of
having committed a felony, or any crime of violence, or an
illegal sale of any drug shall own, possess, or control any
firearm or ammunition therefor.
. . .
(h) Any person violating subsection (a) or (b) shall be
guilty of a class C felony; provided that any felon
violating subsection (b) shall be guilty of a class B
felony. . . .
Prior to trial, the parties stipulated that Foster had a prior felony
conviction as of August 27, 2006.
5
Sergeant Aoki only testified that he was responsible for test
firing the rifle recovered from the 4Runner. The State also called MPD
Criminalist Julie Wood and MPD Evidence Custodian Kalaokana Akana to testify;
their testimony was pertinent only to the drug charges.
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people in the 4Runner “were smoking ice and marijuana” and Malano
was loading bullets into the ammunition clip; at some point they
stopped, and Malano got out of the 4Runner and shot at a junk
car6 on the side of the road; Gonsalves “was loading the gun at
one point when [Malano] was loading the clip”; later, upon being
stopped by the DLNR officers, Malano threw the rifle to the back
seat and it landed on Saunders’s lap; and Saunders and Gonsalves
then kicked the gun to the floor. Foster did not testify. The
defense then introduced into evidence Malano’s judgment,
conviction, and sentence arising out of the same incident, and
the court took judicial notice that Malano was found guilty of
possessing the same items that Foster was charged with possessing
in this case. The defense then rested.
During jury deliberations, the jury communicated the
following question to the court: “Is possession determined by
just being present with the object? Doesn’t there have to be
connection to that object by way of use or intent to use?” The
court responded by referring the jury to Jury Instruction Number
25, which read in full:
A person is in possession of an object if the person
knowingly procured or received the thing possessed, or was
aware of his control of it for a sufficient period of time
to have terminated his possession.
The law recognizes two kinds of possession, actual
possession and constructive possession. A person who,
6
Photographs taken during the day following the stop show that
Malano had actually shot at an abandoned boat on the side of the road.
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although not in actual possession, knowingly has both the
power and the intention at a given time to exercise dominion
or control over a thing for a sufficient period of time to
terminate his possession of it, either directly or through
another person or persons, is then in constructive
possession of it.
The fact that a person is near an object or is present
or associated with a person who controls an object, without
more, is not sufficient to support a finding of possession.
The law requires also that possession may be sole or
joint. If one person alone has actual or constructive
possession of a thing, possession is sole. If two or more
persons share actual or constructive possession of a thing,
possession is joint.
The element of possession has been proved if you find
beyond a reasonable doubt that the defendant had actual or
constructive possession, either solely or jointly with
others.
On January 22, 2009, the jury found Foster guilty as charged of
the firearm and ammunition charges. On February 2, 2009, Foster
renewed his motion for judgment of acquittal as to those charges.
On February 11, 2009, the circuit court held a hearing and
granted the motion, concluding that there was insufficient
evidence to conclude that Foster had the intent to exercise
dominion or control over either the firearm or the ammunition,
even though the evidence did show that Foster had knowledge of
the items and power to exercise dominion or control over them.
As relevant to the State’s appeal and Foster’s application, the
court stated:
It appears that the State did offer substantial
evidence to show that the defendant had the power and
ability to exercise control or dominion over the firearm.
Firearm was in close proximity of the defendant and was
found in the back seat of his vehicle. However, mere
proximity to a prohibited item time [sic] is not sufficient
to establish possession. The State must establish that the
defendant had the intent to possess the firearm.
The [c]ourt find[s] there was not sufficient evidence
in the record even when drawing all inferences in the
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prosecution’s favor indicating that the defendant had the
necessary intent to exercise control and dominion over the
firearm.
The [s]tatements of defendant’s cohorts Ms. Gongsalves
[sic] and Saunders and other circumstantial evidence adduced
at trial do not provide a basis for inferring defendant’s
state of mind with regard to the firearm. Accordingly, the
[c]ourt’s going to grant defendant’s post-trial motion for
judgment of acquittal regarding count five having to do with
the firearm.
State offered evidence showing that the ammunition
[w]as located in the front passenger area of the vehicle
between defendant and Malano. And I don’t think, quite
frankly, there was much dispute about that.
The officer, when he shined his flashlight in, did
indicate where that was located. Although the ammunition
was found closer to defendant’s person than the firearm,
defendant’s closer proximity to the ammunition in and of
itself does not compensate for the [in]sufficient evidence
in the record with regard to defendant’s intent to exercise
dominion and control over the ammunition even though there
was evidence that he had the power and ability to do so.
In the [c]ourt’s view, the most reasonable inference
which a juror could have made based upon the combined
statements of the female passengers and the testimony of the
DLNR officer who heard the distinct sound of the slide of
the rifle as they approached, was that Malano immediately
prior to the interception by the officer used the slide to
remove the clip, and then put it beside him when he threw
the weapon in the back seat.
The [c]ourt finds that the State has failed to come
forward with substantial evidence such that a reason[able]
mind might conclude that defendant had both the power and
intention to exercise dominion and control over the
ammunition as well. And, therefore, the [c]ourt is going to
grant defendant’s motion for judgment of acquittal with
regard to count six.
The circuit court entered its Findings of Fact, Conclusions of
Law and Order Granting Defendant Raymond Foster’s Renewed Motion
for Judgment of Acquittal on April 2, 2009, and the State filed
its Notice of Appeal on May 1, 2009 pursuant to HRS § 641-13(9).7
7
HRS § 641-13 (Supp. 2008) provided then, as it does now, in
pertinent part:
An appeal may be taken by and on behalf of the State from
the district or circuit courts to the intermediate appellate
court, subject to chapter 602, in all criminal matters, in
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C. The ICA’s October 18, 2011 Summary Disposition Order
On appeal to the ICA, the State argued that the circuit
court erred as a matter of law in granting the post-trial motion
for judgment of acquittal by (1) disregarding the applicable
standard of review for such motions and by (2) disregarding the
applicable law on constructive possession.
With regard to the first point, the State argued that
by granting the renewed motion for judgment of acquittal after
the jury had found Foster guilty on the firearm and ammunition
charges, the circuit court essentially usurped the province of
the jury “by disregarding the province of the fact finder to
assess the credibility of the witnesses, weigh the evidence, and
draw justifiable inferences of fact.” (Citing State v. Timoteo,
87 Hawai#i 108, 112-13, 952 P.2d 865, 869-70 (1997)).
Significantly, the State noted that when Foster initially moved
for judgment of acquittal after the State rested, the circuit
court denied that motion after finding that the evidence
presented, “considered in the light most favorable to the State
and with deference to the right of the jury to assess the
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the following instances:
. . .
(9) From a judgment of acquittal following a jury verdict of
guilty[.]
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credibility of the officers, . . . was sufficient for a prima
facie case.” Although Foster did not argue against the State on
this issue, the ICA nevertheless concluded that the circuit court
did not “usurp the province of the jury” in granting the renewed
post-verdict motion because Hawai#i Rules of Penal Procedure
(HRPP) Rule 29(c) expressly allows the circuit court to grant a
motion in that situation.8 State v. Foster, No. 29799, 125
Hawai#i 380, 262 P.3d 669,
2011 WL 4953400, at *1 (App. Oct. 18,
2011) (SDO). This point has not been further argued to this
court.
With regard to the second point, the State argued that
the circuit court erred by finding that the State had not proven
that Foster was in possession of a firearm. Specifically, the
State argued that, according to the analysis for possession set
out by this court in State v. Jenkins, 93 Hawai#i 87, 111-12, 997
P.2d 13, 37-38 (2000), the voluntary act of possession can “be
8
HRPP Rule 29(c) provides:
Motion after discharge of duty. If the jury returns a
verdict of guilty or is discharged without having returned a
verdict, a motion for judgment of acquittal may be made or
renewed within 10 days after the jury is discharged or
within such further time as the court may fix during the 10-
day period. If a verdict of guilty is returned the court
may on such motion set aside the verdict and enter judgment
of acquittal. If no verdict is returned the court may enter
judgment of acquittal. It shall not be necessary to the
making of such a motion that a similar motion has been made
prior to the submission of the case to the jury.
(Emphasis added).
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established by the defendant’s awareness of his or her control of
that object for a sufficient period to have terminated
possession.” According to the State, “the facts established that
Foster was aware of the rifle and the ammunition in his vehicle
and had power and ability to exercise dominion and control for a
sufficient period of time, and his failure to terminate
possession thereof satisfied the Jenkins test for possession.”
Thus, as the State argued, the circuit court erred by granting
Foster’s motion of acquittal on the ground that he lacked the
intent to exercise dominion or control over the rifle and the
ammunition.
In response, Foster argued that the State had not
presented any evidence to satisfy the element of intent for
constructive possession. As a threshold matter, mere proximity
to the item is insufficient to establish constructive possession,
so the evidence of ammunition found on the front seat and the
rifle found in the rear passenger area was insufficient as a
matter of law to show intent to possess. (Citing State v. Brown,
97 Hawai#i 323, 326, 37 P.3d 572, 585 (App. 2001); State v.
Moniz, 92 Hawai#i 472, 476,
992 P.2d 741, 745 (App. 1999)).
Similarly, Foster argued that the State’s reliance on his
ownership of the 4Runner was also inadequate because “the
defendant’s ownership or right to possession of the place where
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the [items] were found, alone, [is] insufficient to support a
finding of the exercise of dominion and control.” (Quoting
Moniz, 92 Hawai#i at 476-77, 992 P.2d at 745-46) (second brackets
added; internal quotation marks omitted). Moreover, although the
State had presented evidence showing Foster’s knowledge of the
rifle and ammunition inside the 4Runner and the evidence
suggested that Foster had the power to exercise dominion and
control over the items, there was an absence of evidence showing
that Foster had intent to exercise dominion and control. Foster
specifically argued that “knowledge alone is insufficient to
demonstrate intent.” (Citing Moniz, 92 Hawai#i at 476-77,
992
P.2d at 745-46). Foster also argued that it was not error for
the circuit court to deny his initial motion for acquittal but
grant his post-verdict motion for the same. According to Foster,
this is because the circuit court focused on the issue of
Foster’s knowledge in the initial motion but then properly
directed its attention to the issue of intent in the renewed
motion and properly concluded that the State failed to adduce any
evidence as to intent. Finally, Foster argued that the State
misinterpreted the requirements of Jenkins by arguing “that it
only needed to show that[] Foster was aware of the rifle and the
ammunition in his vehicle for a sufficient period of time to
terminate possession.” In Foster’s view, acceptance of the
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State’s argument “would allow the prosecution to prove
constructive possession based on mere knowledge of the firearm or
ammunition alone.” Instead, Foster maintained that the State
must affirmatively prove possession by establishing that the
defendant “had both the power and the intent to exercise dominion
and control over the firearm or ammunition.” (Citing Jenkins, 93
Hawai#i at 111, 997 P.2d at 37) (emphasis added). Foster
concluded that because the State “failed to present any evidence
that demonstrated Foster’s intent to exercise dominion and
control over either the rifle or the ammunition, the trial court
properly granted Foster’s motion for judgment of acquittal.”
(Citing State v. Aplaca, 96 Hawai#i 17, 21,
25 P.3d 792, 796
(2001)).
The ICA held that “there was substantial evidence to
support Foster’s convictions” on the firearm and ammunition
possession charges. Foster, 2011 WL 4953400, at *1. The ICA
based this conclusion on several facts and inferences: Foster’s
proximity to the rifle and the ammunition and his knowledge of
that proximity; Foster’s “ultimate control over who and what was
allowed inside the vehicle as well as the activities occurring
inside the 4Runner[,]” which signified that “Foster could have
refused to let Malano back into the 4Runner with the rifle and
ammunition[]”; and Foster’s lack of fear of Malano and the
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absence of any threats from Malano, which was “circumstantial
evidence of, at a minimum, Foster’s willingness to assist Malano
in the latter’s activities involving use of the firearm and
ammunition.” Id. at *2. The ICA therefore concluded that
“[u]pon viewing the evidence presented in the light most
favorable to the State, there [wa]s sufficient evidence from
which the jury could have reasonably concluded that Foster was a
felon who intentionally possessed the subject rifle and
ammunition in violation of HRS § 134-7(b).” Id. Accordingly,
the ICA vacated the circuit court’s April 2, 2009 order and
remanded the case for resentencing based on the jury’s guilty
verdicts. Id. The ICA then filed its judgment on appeal on
November 10, 2011.
Foster timely filed his application for writ of
certiorari on February 8, 2012. The State filed a timely
response to the application on February 23, 2012.
II. STANDARD OF REVIEW
A. Motion for Judgment of Acquittal
When reviewing a post-verdict motion for judgment of
acquittal, we employ the same standard that a trial court
applies to such a motion, namely, whether, upon the evidence
viewed in the light most favorable to the prosecution and in
full recognition of the province of the trier of fact, the
evidence is sufficient to support a prima facie case so that
a reasonable mind might fairly conclude guilt beyond a
reasonable doubt. Sufficient evidence to support a prima
facie case requires substantial evidence as to every
material element of the offense charged. Substantial
evidence as to every material element of the offense charged
is credible evidence which is of sufficient quality and
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probative value to enable a person of reasonable caution to
support a conclusion. Under such a review, we give full
play to the right of the fact finder to determine
credibility, weigh the evidence, and draw justifiable
inferences of fact.
Timoteo, 87 Hawai#i at 112-13, 952 P.2d at 869-70 (quoting State
v. Jhun, 83 Hawai#i 472, 481,
927 P.2d 1355, 1364 (1996))
(citations and internal quotation marks omitted).
III. DISCUSSION
Foster’s application to this court raises a single
question: whether the ICA’s decision vacating the circuit court’s
order granting his motion for judgment of acquittal is obviously
inconsistent with decisions of this court, the ICA, and federal
courts related to constructive possession of contraband because
it is based primarily on Foster’s proximity to the contraband and
his status as owner and driver of the 4Runner. Based on the
analysis that follows, we conclude that the ICA erred in holding
that the State presented sufficient evidence of Foster’s intent
to exercise dominion and control over the firearm and ammunition
to enable the jury to reasonably infer that Foster constructively
possessed those items.
A. The Law of Constructive Possession in the State of Hawai#i
It is a settled matter of Hawai#i law that possession
of an item may be either actual or constructive:
The law, in general, recognizes two kinds of possession:
actual possession and constructive possession. A person who
knowingly has direct physical control over a thing at a
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given time is then in actual possession of it. A person
who, although not in actual possession, knowingly has both
the power and the intention at a given time to exercise
dominion over a thing, either directly or through another
person or persons, is then in constructive possession of it.
Jenkins, 93 Hawai#i at 110, 997 P.2d at 36 (quoting State v.
Mundell,
8 Haw. App. 610, 617,
822 P.2d 23, 27 (1991) (quoting
Black’s Law Dictionary 1163 (6th ed. 1990))) (emphases removed;
other citations omitted); cf. State v. Opulele, 88 Hawai#i 433,
439,
967 P.2d 265, 271 (1998) (“The correctness of [the foregoing
definition], as a general definition of possession, is not in
dispute.”).
In Jenkins, this court clarified the state of mind
required to establish possession of an item and set out a two-
prong analysis for determining the voluntariness of “possession”
under HRS § 134-7(b):
(1) the voluntary act of “possession” of an object itself
is, by way of HRS § 702-202, satisfied where an individual
acts knowingly with respect to his or her conduct; and (2)
the requisite state of mind with respect to the attendant
circumstances--i.e., the particular qualities of the object
that make it illegal to possess it--is, by way of HRS § 702-
204, satisfied by a reckless state of mind.
93 Hawai#i at 111, 997 P.2d at 37 (emphases in original). Thus,
to meet the first part of the test, “the prosecution must first
adduce evidence that the defendant knowingly procured or received
an object, or was aware of his or her control of that object for
a sufficient period to have terminated possession.”
Id. (citing
HRS § 702-202). To meet the second part, “the prosecution must,
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at the very least, adduce evidence that the defendant possessed
the object in reckless disregard of the substantial and
unjustifiable risk that it was a firearm.” Id. (citing HRS §
702-204).
Where actual possession of the item is not at issue,
the State must prove a sufficient nexus between the defendant and
the item in order to establish constructive possession of the
item: “To support a finding of constructive possession the
evidence must show a sufficient nexus between the accused and the
[item] to permit an inference that the accused had both the power
and the intent to exercise dominion and control over the [item].
Mere proximity is not enough.” Moniz, 92 Hawai#i at 476, 992
P.2d at 745 (quoting Mundell,
8 Haw. App. at 622,
822 P.2d at 29
(citations omitted)) (brackets added and internal quotation marks
omitted); see also Brown, 97 Hawai#i at 336,
37 P.3d at 585
(same). Moniz further established that
[p]roof of the defendant’s knowledge of the presence of [the
items] and the defendant’s ownership or right to possession
of the place where the [items] were found, alone, are
insufficient to support a finding of the exercise of
dominion and control. Other incriminating circumstances
must be present to buttress the inference of knowing
possession and provide the necessary link between a
defendant and illegal [items].
92 Hawai#i at 476-77, 992 P.2d at 745-46. This court has also
since noted that it “is correct that mere proximity to the
[item], mere presence, or mere association with the person who
does control the [item] is insufficient to support a finding of
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possession.” State v. Hironaka, 99 Hawai#i 198, 206, 53 P.3d
806, 814 (2002) (quoting Mundell,
8 Haw. App. at 620,
822 P.2d at
29) (brackets added and brackets removed; internal quotation
marks omitted).
B. Foster Had Knowledge of the Firearm and Ammunition and Power
to Exercise Dominion and Control over Them
Here, it is undisputed that Foster knew that the rifle
was inside the 4Runner, at least as of the time that Malano
removed the rifle from the ukulele case to shoot at the abandoned
boat on the side of the road. It is also undisputed that at the
time the DLNR officers stopped the 4Runner, Foster had the power
to exercise dominion and control over the rifle and the
ammunition given the presence of those items inside the 4Runner
and Foster’s proximity to them. However, even if knowledge and
proximity are conclusively established, intent cannot be thereby
presumed. “[A]lthough [Foster] most certainly knew of the
existence of the items and their potential for illegal use,
knowledge and ability to possess do not equal possession where
there is no evidence of intent to make use of that knowledge and
ability.” Moniz, 92 Hawai#i at 479, 992 P.2d at 748 (quoting
Spanish Fork City v. Bryan,
975 P.2d 501, 503 (Utah App. 1999))
(brackets added and brackets removed; emphasis removed). That
is, intent to exercise dominion and control over the items must
thus be proven in addition to knowledge of the items and power to
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exercise dominion and control over them.
C. The Evidence Does Not Support the Inference That Foster Had
the Intent to Exercise Dominion and Control over the Firearm and
Ammunition
As noted supra, to establish constructive possession of
an item, intent to exercise dominion and control over it must be
shown in addition to knowledge of the item and the power to
exercise dominion and control. As the ICA stated in Moniz,
“[o]ther incriminating circumstances” beyond knowledge of the
item, the defendant’s proximity to the item, or the defendant’s
ownership of or right to possess the place where the item is
found, “must be present to buttress the inference of knowing
possession and provide the necessary link between a defendant and
illegal [items].” Moniz, 92 Hawai#i at 477, 992 P.2d at 746.
The ICA has discussed the principles of constructive possession
in some depth in two cases; we conclude that the present case is
analogous to Moniz and distinguishable from Brown.9
Moniz involved constructive possession of marijuana and
a scale containing methamphetamine residue found inside the
apartment belonging to defendant-appellant Juliet Moniz and her
9
This court has not yet decided a constructive possession case
based on whether power and intent to possess have been proven by the State.
In Jenkins, we vacated the defendant’s conviction and remanded for a new trial
based in part on our clarification of the state of mind required to establish
possession of an item. Jenkins, 93 Hawai#i at 115, 997 P.2d at 41. Shortly
thereafter, in Valentine, we vacated in part the defendant’s conviction and
remanded in order that the jury could be given new instructions pursuant to
Jenkins. State v. Valentine, 93 Hawai#i 199, 210,
998 P.2d 479, 490 (2000).
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husband, defendant Richard Moniz. Id. at 474, 992 P.2d at 743.
Juliet was found guilty of the charges relating to the marijuana
and the scale, but not guilty of a separate charge for the
methamphetamine residue. Id. at 475,
992 P.2d at 744. On
appeal, the ICA reversed Juliet’s conviction, holding that she
had the power but not the intent to possess the marijuana and the
scale. Id. at 477, 478,
992 P.2d at 746, 747. Because Juliet
and Richard lived together in the apartment, the ICA began by
noting that it is more difficult to conclude that constructive
possession exists “in cases such as this one, where a defendant
does not have exclusive possession or control of the place where
drugs are found and no drugs are found on the defendant’s actual
person.” Id. at 476,
992 P.2d at 745. The ICA concluded that
the power requirement was met with respect to the marijuana
because it “was found in a drawer in the bedroom dresser that
Juliet shared with Richard[,]” because “Juliet washe[d],
fold[ed], and put[] the clothes away and . . . would see anything
in the drawer[,]” because “the marijuana had been in the dresser
drawer for two months” at the time of her arrest, and because she
“admitted that she had seen the marijuana in the drawer and knew
what it was[.]” Id. at 477,
992 P.2d at 746. With respect to
the scale, although Juliet denied knowledge of its presence,
Richard testified that Juliet may have come into contact with the
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scale in the process of cleaning the apartment. Id. at 478, 992
P.2d at 747. Further, Richard “admitted that he used the scale
to weigh the drugs he sold and bought and that Juliet knew that
he used and sold drugs and that some of the money he was giving
her each month was from his drug sales.”
Id. Thus, the ICA
concluded that “a reasonable jury could conclude that Juliet . .
. was aware of the existence of the scale and its use by Richard
for illegal purposes.”
Id. As to the intent requirement,
however, the ICA determined that there was “insufficient
evidence.” Id. at 477,
992 P.2d at 746. As for the marijuana,
“Richard and Juliet both testified that Juliet strongly opposed
Richard’s use of drugs, did not procure the marijuana, and never
smoked marijuana.”
Id. Additionally, Juliet testified that she
could not even have disposed of the marijuana because it was
Richard’s, and “if [he] cannot find it, he going get mad.”
Id.
As for the scale, it was found in a bucket along with Richard’s
driver’s license but none of Juliet’s belongings; also, “there
[wa]s no evidence in the record that Juliet intended to use the
scale for any of the following prohibited purposes listed in HRS
§ 329-43.5(a)[.]”10 Id. at 478,
992 P.2d at 747. As a result,
10
HRS § 329-43.5(a) (1993) provided then, as it does now, in
pertinent part:
It is unlawful for any person to use, or to possess with
intent to use, drug paraphernalia to plant, propagate,
continue...
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the lack of evidence to support Juliet’s intent to exercise
dominion and control over the marijuana and the scale
necessitated reversal of her conviction on those counts. Id. at
480, 992 P.2d at 749.
In Brown, the defendant was convicted of, inter alia,
possession of burglar’s tools and unauthorized control of a
propelled vehicle. 97 Hawai#i at 325, 37 P.3d at 574. On
appeal, Brown argued that “the State failed to adduce substantial
evidence that he ‘constructively possessed the burglar’s tools’
that were found in a backpack on the floorboard near the front
passenger’s seat of the van.” Id. at 326,
37 P.3d at 575. The
ICA disagreed with Brown and affirmed his conviction and sentence
based on its conclusion that there was substantial circumstantial
evidence to establish Brown’s intent to possess the burglar’s
tools. Id. at 340,
37 P.3d at 589. According to the ICA’s
opinion, the facts showed that at the time of Brown’s arrest, the
van in question had been reported stolen, it was not moving
because it had “crashed into [a] wall,” “only the driver’s and
front passenger’s doors were open,” and “Brown was found on the
10
...continue
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. . . .
(Emphasis added).
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ground in front of the van on the driver’s side,” leading to the
inference that Brown had been driving the stolen van until it
crashed into the wall. Id. at 334, 37 P.3d at 583. Further, the
evidence showed that “[t]he backpack was on the floorboard near
the front passenger’s seat, open and within Brown’s reach, with a
pair of bolt cutters visibly sticking out of the backpack.” Id.
at 337,
37 P.3d at 586 (citation omitted). Because the van “had
just recently been stolen from NF, which testimony indicated was
a seafood distributor, the jury could reasonably infer that the
backpack containing the tools had not been placed in the van by
any employee of NF, but by Brown or the other passenger in the
stolen van.”
Id. Although it was likely according to the
evidence that the backpack was located closer to the front
passenger, the ICA noted that “Hawai#i recognizes that two or
more persons can be in joint possession of an item[,]”
id.
(citing Mundell,
8 Haw. App. at 617,
822 P.2d at 27), and that
“[w]here two co-conspirators are engaged in a joint criminal
activity, possession by one of the tools to further the criminal
activity will be imputed to the other.”
Id. (citing Solomon v.
State,
350 S.E.2d 35, 36 (Ga. App. 1986); Franklin v.
Commonwealth,
477 S.W.2d 788, 791 (Ky. 1972)).
In this case, as in Moniz, there is no dispute that
Foster knew that the firearm and the ammunition were inside the
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4Runner, and it could be inferred by rational jurors that Foster
had the power to exercise dominion and control over those items
based on his proximity to them inside the vehicle. However,
Foster’s knowledge of and power over the items did not provide a
sufficient nexus between him and the items to prove possession in
the absence of intent to exercise dominion and control over the
items; intent is a separate requirement that must be proven in
addition to knowledge and power. Here, as in Moniz, the State
failed to present any evidence that Foster had the intent to
exercise dominion and control over the firearm and the
ammunition. As that lack of evidence could not have permitted a
reasonable juror to make the inference that Foster was in
constructive possession of the firearm and ammunition, the ICA
thus erred in vacating the circuit court’s order by concluding
that “there was substantial evidence to support Foster’s
convictions[.]” Foster, 2011 WL 4953400, at *1.
“To support a finding of constructive possession the
evidence must show a sufficient nexus between the accused and the
[object] to permit an inference that the accused had both the
power and the intent to exercise dominion or control over the
[object]. Mere proximity is not enough.” Id. (quoting Brown, 97
Hawai#i at 336,
37 P.3d at 585) (brackets and emphases in
original; internal quotation marks omitted). As the ICA stated,
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“[t]he undisputed facts in the record reveal that Foster had
knowledge that the rifle and ammunition were in proximity to him
in the vehicle . . . .” Id. at *2. However, according to the
evidence adduced at trial, the rifle belonged not to Foster but
to Malano; Malano entered the 4Runner with the rifle, and at that
time it was inside a black ukulele case and hidden from view;
Malano retained control over the rifle from the time he entered
the 4Runner until the DLNR officers stopped the 4Runner; at no
time did Foster show any interest in, handle, or attempt to
handle the rifle; only Malano and Gonsalves handled bullets in
order to load them into the ammunition clip and into the rifle;
and the rifle was discovered on the floor of the vehicle between
the front passenger seat and rear passenger seat only because
Malano had thrown the rifle back to Saunders, who then kicked it
to the floor. None of this evidence suggested that Foster
exercised, or intended to exercise, any control over the rifle or
that Foster was directing Malano’s use of the rifle.
Furthermore, the record does not demonstrate that the
rifle was used in furtherance of criminal activity as
contemplated by Brown. We also note that there was insufficient
evidence in the record to suggest a joint venture and/or an
agreement between Foster and Malano to go deer hunting or
shooting for pleasure in that remote area of Maui. Cf. Brown, 97
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Hawai#i at 337-38, 37 P.3d at 586-87 (imputing criminal liability
for constructive possession where there was substantial evidence
that the defendant and his passenger were engaged in joint
criminal activity). Although Foster’s 4Runner was stopped by
Pacheco and Yamamoto because it was the first vehicle to approach
after they noticed the light panning and blocked the town-bound
lane of the highway, the officers did not subsequently discover
any light source on or in the car consistent with the panning
they had just observed. Officer Yamamoto also testified that the
subject rifle in this case is not of a type commonly used for
hunting, and MPD Sergeant Aoki testified that it “can be” but is
“[n]ot typically[ used for hunting activity.]” Moreover, while
the trial testimony does not specifically address whether other
hunting equipment was present in the 4Runner, the State conceded
at oral argument that there was no evidence of the 4Runner
containing any equipment or materials for hunting.
The ICA also stated that Foster’s intent to have
dominion and control over the rifle and ammunition could be
inferred by the fact that
Foster willingly and intentionally allowed Malano to reenter the 4Runner with the rifle and ammunition after Foster
knew that Malano was carrying a working rifle and
ammunition. As the driver and owner of the 4Runner, Foster
had ultimate control over who and what was allowed inside
the vehicle as well as the activities occurring inside the
4Runner. Foster could have refused to let Malano back into
the 4Runner with the rifle and ammunition.
Foster, 2011 WL 4953400, at *2. However, control, possession, or
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even ownership of a place is not itself sufficient “to support a
finding of the exercise of dominion and control.” Moniz, 92
Hawai#i at 477, 992 P.2d at 746. As the United States Court of
Appeals for the Fifth Circuit aptly stated in a case cited by
Foster in his application, “when two or more people are occupying
a place, a defendant’s control over the place is not by itself
enough to establish constructive possession of contraband found
there.” United States v. Crain,
33 F.3d 480, 486 (5th Cir.
1994). The same court earlier stated, in another case cited by
Foster: “Thus, while dominion over the vehicle certainly will
help the government’s case, it alone cannot establish
constructive possession of a weapon found in the vehicle,
particularly in the face of evidence that strongly suggests that
somebody else exercised dominion and control over the weapon.”
United States v. Wright,
24 F.3d 732, 735 (5th Cir. 1994).
Although these federal cases are not binding on this court, they
are applicable to and instructive in the present case. Here,
despite Foster’s status as driver and owner of the vehicle in
which the firearm and ammunition were found, no evidence beyond
that status demonstrates that Foster had any intent to exercise
dominion and control over the items; in fact, the evidence in the
record only links the items to Malano (and Gonsalves, who at some
point loaded a number of bullets into the rifle) from the time
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Malano entered the 4Runner until the time that the DLNR officers
stopped the 4Runner later that night. Although “dominion over a
vehicle in which a firearm is found can lead to an inference of
constructive possession[,]” that inference fails in the face of
“overwhelming countervailing evidence” linking the firearm to
another passenger. Id. That was the case in Wright, and that is
the case here.
Mindful that our standard of review of a motion for
judgment of acquittal is the same as the trial court’s, namely
whether there is substantial evidence as to every material
element of the offense as charged, we thus hold that the ICA
erred in concluding that there was sufficient evidence of intent
for a jury to infer that Foster thus constructively possessed the
subject rifle and ammunition in violation of HRS § 134-7(b). As
the Crain court stated: “We are especially reluctant to infer
constructive possession of contraband by one occupant [of a
vehicle] when there is evidence in the record explicitly linking
the contraband to another occupant.” 33 F.3d at 486 (citing
United States v. Mergerson,
4 F.3d 337, 349 (5th Cir. 1993)).
Here, the State’s evidence only went so far as to show Foster’s
ownership of and presence in the 4Runner and his proximity to the
firearm and ammunition. Accordingly, absent evidence of intent,
the circuit court correctly granted Foster’s renewed motion for
judgment of acquittal, and the ICA erred in vacating the circuit
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court’s judgment.
IV. CONCLUSION
Based upon the foregoing, we vacate the ICA’s
November 10, 2011 judgment and reinstate the circuit court’s
April 2, 2009 order granting Foster’s renewed motion for judgment
of acquittal.
Cynthia Kagiwada for /s/ Mark E. Recktenwald
petitioner
/s/ Paula A. Nakayama
Richard K. Minatoya and
Renee Ishikawa Delizo for /s/ Sabrina S. McKenna
respondent /s/ Randal K.O. Lee
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