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IN THE SUPREME COURT OF THE STATE OF HAWAI#I

---o0o---

 

STATE OF HAWAI#I,

Respondent/Plaintiff-Appellee,

vs.

FRANK ENOS,

Petitioner/Defendant-Appellant.

 

SCWC-18-0000407

CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS

(CAAP-18-0000407; CR. NO. 1CPC-18-0000113)

MAY 27, 2020

RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.

OPINION OF THE COURT BY RECKTENWALD, C.J.

A police officer discovered Frank Enos sleeping below a

freeway and arrested him for Criminal Trespass onto State Lands. 

Hawai#i Revised Statutes (HRS) § 708-814.7 (Supp. 2017). Nearby,

the officer found a pipe and plastic bag, from which the police

later recovered an aggregate .005 grams of substances containing

Electronically Filed

Supreme Court

SCWC-18-0000407

27-MAY-2020

09:02 AM
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methamphetamine. Enos was subsequently charged with Promotion of

a Dangerous Drug in the Third Degree, a class C felony. HRS

§ 712-1243 (2014). 

Enos moved to dismiss the charge as de minimis pursuant

to HRS § 702-236 (2014), which allows a court to dismiss a

criminal charge when the defendant’s conduct “[d]id 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[.]” The State opposed

the motion, arguing that .005 grams of methamphetamine was

sufficient to produce a physiological effect and therefore not de

minimis. In addition, the State asserted that Criminal Trespass

onto State Lands is a property crime, and this court has long

described the purpose of Promoting a Dangerous Drug in the Third

Degree as, among other things, preventing property crimes.

The circuit court granted the motion, concluding that

Enos’s conduct did not “warrant the condemnation of conviction.” 

While the circuit court credited expert testimony that .005 grams

of methamphetamine could affect the body, and it therefore

concluded the amount possessed was not de minimis, the other

attendant circumstances weighed in favor of dismissal. In

addition, as a matter of statutory interpretation, the circuit

court determined that Criminal Trespass onto State Lands was not

a property crime and accordingly did not constitute a “harm” or

“evil” with which the drug statute was concerned. 

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On appeal, the Intermediate Court of Appeals (ICA)

disagreed with the circuit court that Criminal Trespass was not a

property crime, but agreed that “it was not a property crime

consistent with the legislative intent of criminalizing the

possession of any amount of illicit drugs.” Nonetheless, the ICA

remanded to the circuit court based on two clearly erroneous

findings of fact that it could not conclude were harmless.

We hold that it was within the circuit court’s

discretion to dismiss the charge against Enos as de minimis. 

While there were errors of fact in the circuit court’s order

dismissing the charge, those errors did not affect the outcome

and were therefore harmless. In addition, the ICA correctly

analyzed Criminal Trespass onto State Lands and its relationship

to the de minimis statute. While Criminal Trespass onto State

Lands is a property crime, it is not the type of property crime

that motivated the legislature to criminalize possession of any

amount of a dangerous drug. 

Moreover, although the amount of methamphetamine Enos

possessed was capable of producing some effect on the body,

quantity is one of many factors a court must consider when

deciding a de minimis motion on a drug charge. In light of the

minute quantity of methamphetamine he possessed and the

mitigating circumstances presented by the facts of this case, the

circuit court did not abuse its discretion when it dismissed the

Promotion of a Dangerous Drug in the Third Degree charge against

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Enos as de minimis. 

I. BACKGROUND

A. Enos’s Arrest

On January 21, 2018, around 11:00 p.m., Officer Albert

Moniz of the Honolulu Police Department (HPD)1 did a “routine

patrol check” of an area under the H-1 Freeway near the

intersection of Wai#alae Avenue and Keala#olu Avenue in Honolulu,

“based on complaints that residentially challenged individuals”

were camping there. The area under the freeway belongs to the

State of Hawai#i, and there are signs in the area that say “Keep

Out,” “Government Property,” and “Trespassers will be

Prosecuted.” 

Using his flashlight, Officer Moniz saw Enos lying

behind a cardboard box under the freeway and recognized him from

past encounters. When Officer Moniz was about five feet away

from Enos, he noticed a “neoprene pouch with a clear glass pipe

containing a bulbo[u]s end sticking out of it.” Enos tried to

hide the bag under his leg. Recognizing the pipe to be drug

paraphernalia used to smoke methamphetamine, Officer Moniz

instructed Enos to stand up and asked him to hand over the pipe,

to which he responded “I don’t know what you’re talking about.”

Officer Moniz placed him under arrest for Criminal Trespass onto

1 The account of Enos’s arrest comes from the police report by

Officer Moniz and the Declaration by HPD Detective Reginald Caneda attesting

to the facts that established probable cause. The parties stipulated to the

police report, and for the purposes of the de minimis motion, the facts are

undisputed. 

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State Lands. See HRS § 708-814.7.2 Enos told the Officer, “I

know, but I have nowhere else to go.” 

After placing Enos under arrest, Officer Moniz

recovered the glass pipe from the open neoprene pouch, which Enos

denied belonged to him. The open pouch also contained a “clear

zip lock type bag containing a crystalline substance” that

resembled crystal methamphetamine. In addition, a warrant check

revealed three outstanding warrants for Contempt of Court. Enos

was taken into custody and read his Miranda rights. When

questioned thereafter, Enos again denied that he possessed, used,

or owned the pipe. He asserted that he was watching the area for

his friend, who had been using the pipe earlier in the evening

with Enos’s girlfriend. 

The pipe and plastic bag were submitted to the HPD

Scientific Investigation Section, and an HPD analyst tested both

for methamphetamine. The pipe contained .002 grams of a

substance containing methamphetamine, and the plastic bag

contained .003 grams of the same. The analyst did not do a

purity test on either substance. 

B. Circuit Court Proceedings

In the Circuit Court of the First Circuit (circuit

court),3 the State charged Enos with Promoting a Dangerous Drug

in the Third Degree for knowingly possessing methamphetamine,

2 For the text of HRS § 708-814.7, see infra note 9.

3 The Honorable Karen T. Nakasone presided.

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which is a class C felony. See HRS § 712-1243.4

1. Motion to Dismiss for De Minimis Violation

Enos filed a Motion to Dismiss for De Minimis Violation

(Motion) pursuant to HRS § 702-236.5 The Motion argued that the

amount of methamphetamine found was de minimis because it was

“neither useable nor saleable for any illicit purpose.”6 To

support this claim, the Motion pointed to our decision in State

v. Vance, 61 Haw. 291, 307, 602 P.2d 933, 944 (1979), which Enos

said

approved dismissing charges based upon possession of a small

amount of a dangerous drug “where . . . the amount is

microscopic or is infinitesimal and in fact unusable as a

narcotic, the possibility of unlawful sale or use does not

exist, and proscription of possession under these

circumstances may be inconsistent with the rationale of the

statutory scheme of narcotics control.” 

Enos asked to incorporate into the record testimony

from past hearings on the issue of how much methamphetamine could

4 HRS § 712-1243 provides: “(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. (2) Promoting a dangerous drug in

the third degree is a class C felony.”

5 HRS § 702-236 provides in relevant part: “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

. . . [d]id not actually cause or threaten the harm or evil sought to be

prevented by the law defining the offense.”

6 Enos’s motion only addressed the substance containing

methamphetamine recovered from the pipe (.002 grams). The substance recovered

from the bag (.003 grams) was tested on March 8, 2018, after Enos filed the

Motion to Dismiss. On the same day that Enos filed the Motion to Dismiss, he

also filed a Motion for a Bill of Particulars, asking the State to clarify

“the act of possession at issue and the item containing methamphetamine at

issue” and noting the lack of analysis of the contents of the bag. The State

opposed the motion and submitted a Memorandum in Opposition on March 29, 2018.

 The State clarified in the Memorandum and again in court on April 2, 2018,

that it was proceeding on possession of both the pipe and the bag, and the

Motion for a Bill of Particulars was denied.

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trigger a physiological response. In particular, the Motion

relied on the testimony of Dr. George Read, an expert who

testified before the circuit court in 1999 in State v. Oneha, CR

No. 99-0742. Dr. Read had testified that .008 grams of

methamphetamine “cannot produce a euphoric effect and is

insufficient for sale of illicit use.” Enos asked the court to

credit this testimony rather than that of Dr. Kevin Ho, the

State’s expert in Oneha, who had extrapolated that inhaling

.002–.005 grams of methamphetamine can produce euphoric effects.

In addition, Enos pointed to the fact that the HPD did not test

the substance found in the pipe and bag for purity. He argued

that nothing about the circumstances “indicate[d] that [Enos]

either intended to use or sell” the drug. Accordingly, that

fact, combined with the small amount of material containing

methamphetamine found (of which it was possible that only a

fraction was actually the drug), warranted dismissal of the

charge as de minimis. 

In its Memorandum in Opposition, the State argued that

under the totality of the circumstances, Enos’s “conduct did in

fact cause or threaten the harm sought to be prevented, i.e.

narcotic drug use.” The State pointed to the legislative history

of § 712-1243, the statute criminalizing Possession of a

Dangerous Drug in the Third Degree, and noted that this court has

recognized the purpose of the statute to be “to respond to abuse

and social harm” and to “counter increased property and violent

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crimes.” State v. Viernes, 92 Hawai#i 130, 134, 988 P.2d 195,

199 (1990) (quoting H. Conf. Comm. Rep. No. 1 in the 1972 House

Journal at 1040 and 1996 Haw. Sess. L. Act 308 at 970). The

State argued that because the Defendant was found trespassing on

State property - a property crime - when the drugs were found,

Enos indeed threatened the type of harm - property crimes - that

the legislature sought to prevent. Finally, the State

highlighted that the burden of proof rested with Enos to show

that the attendant circumstances warranted dismissal and claimed

that Enos failed to meet that burden. The State argued that Enos

failed to prove that .005 grams of methamphetamine constituted a

de minimis amount and asked the court to credit Dr. Ho’s

testimony in State v. Castro, CR No. 01-1-2105, in which the

expert “opined that a dose ‘smaller’ than .0025 grams can . . .

cause a physiological effect.” 

At the hearing on the motion, Enos emphasized that

Criminal Trespass onto State Lands was not among the harms that

the legislature intended to combat by criminalizing drug

possession. Conceding that Enos was found “sleeping in an area

that he wasn’t supposed to be,” Enos nonetheless contended that

the legislature intended to combat “public violence and property

offenses.” According to Enos, this charge constituted an

“attempt[ ] to pigeonhole what should be paraphernalia drugs

. . . into a felony statute.” 

In addition, Enos emphasized that because there was no

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purity test done on the net .005 grams of methamphetaminecontaining substance, “[w]e have no idea how much of that

substance was actually meth.” He also pointed to the other

attendant circumstances that minimized his culpability: the pipe

was not warm to the touch, which would indicate recent use; there

were no other tools around that would allow Enos to smoke the

material (e.g., a lighter, scraper, or scooper); Enos had no cash

that would suggest dealing; there was no indication that Enos was

intoxicated when he was arrested; and when discovered, the pipe

was not in use and lying five feet away. 

The five-foot distance, which Enos mentioned in his

Motion and at the hearing, did not accurately reflect the police

report, to which Enos stipulated. Although the State called

attention to the mistake on appeal, it did not object to the

misstatement during the hearing. In fact, the report indicated

that Officer Moniz was five feet from Enos when he saw the pipe,

but it did not mention precisely how far the bag and pipe were

from Enos. The report indicated that the pipe was “next to

[Enos’s] left leg.” (Emphasis added.)

The State’s argument in response to Enos at the hearing

focused on the legislature’s intent to prevent property crimes. 

The State first emphasized the circumstances in which Enos was

arrested: he was trespassing on State property in an area with

conspicuous signs and arrested for Criminal Trespass onto State

Lands. This, according to the State, is a property crime. The

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State also noted the defendant’s record and his past convictions

for other property offenses (specifically, forgery, unauthorized

control of a propelled vehicle, and escape associated with the

unauthorized control conviction).7 Clarifying to the court that

the amount of drugs found was only one of many factors the court

should consider, the State asserted that Enos had not met his

burden. The State emphasized that the legislature’s intent in

criminalizing possession “was specifically to prevent these

property crimes.” Finally, the State defended Dr. Ho’s analysis

and claimed that even using Dr. Read’s testimony, .005 grams of

methamphetamine would still produce some physiological response,

even if that response fell short of euphoria. In sum, the State

argued that under the totality of the circumstances, Enos’s

offense was more than de minimis. 

2. The Order Granting the Motion to Dismiss

The circuit court orally granted Enos’s motion and

issued a written order (Order) two weeks later. In the Order,

the circuit court made eleven Findings of Fact (FOF):

1. On January 21, 2018, Honolulu Police Officer Albert Moniz

(Officer Moniz) found Defendant laying in a cardboard box.

2. It [is] undisputed that Defendant is well-known to

Officer Moniz as a homeless person. Officer Moniz and

Defendant had multiple prior interactions in that regard.

3. Officer Moniz discovered a pouch containing a glass pipe

and zip packet in a homeless encampment, located five (5)

feet away from Defendant, not inside the cardboard box.

7 These convictions were thirteen and eighteen years old

respectively, which Enos pointed out at the hearing. 

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4. While Defendant did try to conceal the pouch containing

the pipe and the packet, Defendant repeatedly told Officer

Moniz that it did not belong to him and it belonged to his

friend.

5. No other drug paraphernalia was found on Defendant’s

person.

6. The Defendant told officers he had nowhere else to go and

that was why he was camped out at that location.

7. Officer Moniz initially appended [sic] and arrested

Defendant for Trespassing on State Lands in violation of

section 708-814.7 of Hawaii Revised Statutes (HRS).

8. Officer Moniz recovered the glass pipe and zip packet.

9. The contents of the glass pipe and zip packet were tested

by [an] HPD criminalist . . . .

10. [The] HPD Criminalist . . . determined that the

substance in the pipe and packet at issue weighed a combined

.005 grams and contained methamphetamine.

11. On March 25, 2002, Dr. Kevin Ho, a qualified expert in

the field of Pharmacy, testified that .0025 grams of inhaled

methamphetamine is capable of producing a physiological or

euphoric effect.

Next, in its Conclusions of Law (COLs), the court

concluded that .005 grams “meets the criteria for illicit use.” 

The court cited several of our cases that found as little as .002

grams of residue to be more than de minimis, at least absent

other attendant circumstances. See, e.g., State v. Carmichael,

99 Hawai#i 75, 80, 53 P.3d 214, 219 (2002). In light of the

defendant’s burden of proof, the court also stated that “[n]o

evidence was presented to support defense’s challenge that no

purity analysis was done to determine what portion of the .005

[grams of] substance actually constituted methamphetamine.”

However, the court found that the offense was

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nonetheless de minimis. Citing State v. Fukagawa, the court

defined its task as determining whether “the defendant’s conduct

caused or threatened the harm or evil sought to be prevented by

the law defining the offense sufficiently to warrant the

condemnation of conviction.” 100 Hawai#i 498, 505, 60 P.3d 899,

906 (2002). As to the charging statute, HRS § 712-1243, the

court found that this law “proscribes the use and sale of illicit

drugs” in order “to address ‘related social harms, including

property and violent crimes,’” again quoting Fukagawa, 100

Hawai#i at 504–05, 60 P.3d at 905–06. 

Addressing the relevant attendant circumstances, the

court found that the pipe and pouch “were not found on the

defendant’s person, but on the ground, five feet away from the

cardboard box that the defendant was lying in.” Likewise, “[n]o

other paraphernalia was found on defendant’s person.” In

addition, Enos was not “engaged in nor suspected of engaging in

any violent activity” nor was he “committing a crime against the

property of another, such as theft, burglary, or property

damage.” Accordingly, the court determined that these

circumstances “do not support a finding of illicit use or intent

for illicit use.” 

Concerning HRS § 708-814.7,8 the court concluded that

8 HRS § 708-814.7 provides in relevant part:

(1) [With the exception of certain state property,] a

person commits the offense of criminal trespass onto

state lands if:

(continued...)

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Criminal Trespass onto State Lands “is not a property crime

consistent with the legislative intent criminalizing the

possession of any amount of illicit drugs.” The court pointed to

§ 708-814.7(4), which provides: “No conviction under this section

shall be used to establish a felony conviction under section 708-

803.” In turn, HRS § 708-803 (Supp. 2016) covers habitual

property crimes. From § 708-814.7(4), the court concluded that

Criminal Trespass onto State Lands “is specifically exempted from

being a property crime, even though it is contained with Chapter

708, which deals with offenses against property rights.” The

court also noted that the legislative history of § 708-814.7

“indicates a concern that the statute not be used to punish or

criminalize homelessness.” Accordingly, it would be inconsistent

with that intent to construe Criminal Trespass onto State Lands,

the commission of which “ar[ose] out of [Enos’s] homelessness

situation” in the instant case, as a property crime for

determining whether Enos’s drug offense was de minimis. 

The circuit court concluded that, in light of all the

attendant circumstances, Enos “did not cause or threaten the harm

or evil sought to be prevented by the law defining [Possession of

8(...continued)

. . . 

(b) The person enters or remains unlawfully in

or upon any state land on or under any highway,

and the state land has a sign or signs displayed

upon the land that are sufficient to give

reasonable notice that read: “Government

Property - No Trespassing”;

. . . .

(4) No conviction under this section shall be used to

establish a felony conviction under section 708-803. 

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a Dangerous Drug in the Third Degree] sufficient to warrant the

condemnation of conviction.” The circuit court thus granted

Enos’s Motion to Dismiss.

C. ICA Proceedings

The State appealed to the ICA, asking it to vacate the

Order of Dismissal and remand the case for trial. In addition to

reiterating the arguments made to the circuit court, the State

called attention to the discrepancy between the police report and

FOFs 1 and 3. The circuit court found that Enos was lying in a

cardboard box and that the pipe and pouch were five feet away,

but the State asserted that the police report contradicted these

findings,9 rendering them clearly erroneous. Per the State, the

distance between Enos and the pipe, combined with his attempt to

conceal the pipe and his denial that the pipe was his, supported

the conclusion that Enos constructively possessed the drugs. In

response, Enos conceded that FOFs 1 and 3 were inconsistent with

the police report and not supported by evidence. He noted,

however, that the State had the opportunity to object when the

erroneous five-foot distance was raised in the circuit court, but

it did not. Even so, Enos argued the errors were “not fatal to

the court’s conclusions” because nowhere did the court find that

Enos was not in possession; to the contrary, ruling that the

violation was de minimis presumes that he was in possession. 

9 In addition to the discrepancy in the five-foot distance noted

above, the report also indicated that Officer Moniz saw Enos “lying behind a

cardboard box,” not inside it. (Emphasis added.) 

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In a summary disposition order, the ICA concluded that

FOFs 1 and 3 were clearly erroneous because they were not

supported by any evidence in the record. The ICA could not

conclude that these errors were harmless because, although the

circuit court “made other findings relevant to the issue of

illicit use,” the circuit court included and relied on the

erroneous findings in its decision to grant the Motion to

Dismiss. 

However, the ICA agreed with the circuit court’s

conclusion that Criminal Trespass onto State Lands “is not the

harm sought to be prevented by HRS § 712-1243.” The ICA

disapproved of the statutory interpretation by the circuit court;

according to the ICA, Criminal Trespass onto State Lands is

literally a “property crime” under the HRS. However, the ICA

held that Criminal Trespass onto State Lands does not fall within

the “type of property crimes actually associated with dangerous

drug use” that motivated the legislature to criminalize drug

possession. The ICA pointed to Act 161 of 2002, which amended

§ 712-1243, and noted that while “nondrug offenses” associated

with drug use were of concern to the legislature, the enumerated

examples (“thefts, burglaries, robberies, assaults, rapes, and

homicides”) were markedly different from Criminal Trespass onto

State Lands. 2002 Haw. Sess. Laws Act 161, § 1 at 569. 

Accordingly, the ICA held that while the circuit court was wrong

to say that Criminal Trespass onto State Lands was not a property

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crime, it correctly concluded that it was not a property crime

“consistent with the legislative intent of criminalizing the

possession of any amount of illicit drugs.” 

However, because the circuit court “exercised its

discretion, in part, based on erroneous findings,” the ICA

vacated the Order and remanded to the circuit court “to

redetermine the issue of whether Enos’s conduct constituted a de

minimis violation.” 

D. Supreme Court Proceedings

Enos urges us to reverse the ICA’s vacatur of the order

dismissing the charge against him. He claims that while FOFs 1

and 3 were clearly erroneous, any error was harmless. He also

argues that while the ICA was right to affirm the circuit court

with respect to the “property crime” issue, “it gravely erred in

holding that the court had ‘wrongly concluded’ that Criminal

Trespass onto State Lands is not a property crime.” Finally,

Enos claims that the ICA gravely erred in holding that the

circuit court abused its discretion. 

II. STANDARDS OF REVIEW

A. Statutory Interpretation

“Questions of statutory interpretation are questions of

law to be reviewed de novo under the right/wrong standard.” 

Nakamoto v. Kawauchi, 142 Hawai#i 259, 268, 418 P.3d 600, 609

(2018).

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B. Findings of Fact

Findings of fact “are subject to the clearly erroneous

standard of review. A finding of fact is clearly erroneous when,

despite evidence to support the finding, the appellate court is

left with a definite and firm conviction that a mistake has been

committed.” State v. Rapozo, 123 Hawai#i 329, 336, 235 P.3d 325,

332 (2010) (quoting State v. Gabalis, 83 Hawai#i 40, 46, 924 P.2d

534, 540 (1996)).

Even if a trial court’s finding is found to be clearly

erroneous, it may nonetheless be harmless. For clear error to be

reversible, it must be shown that the erroneous finding “affected

the outcome of the trial court’s decision.” Chakta v. County of

Maui, 109 Hawai#i 198, 219 (2005) (citing HRS § 641-2); see also

Torres v. Torres, 100 Hawai#i 397, 412 (2002). 

C. Motion to Dismiss for De Minimis Violation

The dismissal of a prosecution for a de minimis

infraction is reviewed for abuse of discretion. State v.

Pacquing, 129 Hawai#i 172, 180, 297 P.3d 188, 196 (2013). “A

court abuses its discretion if it clearly exceeded the bounds of

reason or disregarded rules or principles of law or practice to

the substantial detriment of a party litigant.” Rapozo, 123

Hawai#i at 336, 235 P.3d at 332 (quoting State v. Oughterson, 99

Hawai#i 244, 253, 54 P.3d 415, 424 (2002)).

III. DISCUSSION

The circuit court did not abuse its discretion when it

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dismissed the charge against Enos as de minimis. While the ICA

correctly analyzed the Criminal Trespass onto State Lands

statute, we disagree that the challenged findings of fact, while

clearly erroneous, were not harmless. Moreover, we conclude that

it was within the circuit court’s discretion to dismiss the

charge as de minimis because it considered the relevant attendant

circumstances and reasonably concluded that Enos’s conduct did

not “warrant the condemnation of a conviction.” HRS § 702-236.

A. Criminal Trespass onto State Lands Does Not Fall Within the

Harm Sought to Be Prevented by the Felony Drug Statute

A court may dismiss a charge as de minimis if, in light

of the attendant circumstances, it finds that the defendant’s

conduct “[d]id 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 or

conviction[.]” HRS § 702-236(1)(b); see also State v. Park, 55

Haw. 610, 617, 525 P.2d 586, 591 (1974). Dismissing a charge as

de minimis falls squarely within “the sound discretion of the

trial court.” Viernes, 92 Hawai#i at 133, 988 P.2d at 198

(citation omitted). The defendant bears the burden of proof in a

de minimis motion. State v. Oughterson, 99 Hawai#i at 256, 54

P.3d at 427.

Throughout the proceedings, the parties disagreed over

whether Criminal Trespass onto State Lands was a “property crime”

and argued over the proper statutory classification for the law. 

This argument stemmed from our previous descriptions of the “harm

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or evil,” HRS § 702-236(1)(b), the legislature sought to prevent

by criminalizing possession of any amount of a dangerous drug,

which included combating “property and violent crimes.” Viernes,

92 Hawai#i at 134, 988 P.2d at 199. Since Enos was committing a

property crime when he was arrested, the State argued that his

conduct of drug possession in fact caused the “harm or evil

sought to be prevented by” HRS § 712-1243, Promotion of a

Dangerous Drug in the Third Degree.

At the outset, the circuit court’s interpretation of

the Criminal Trespass onto State Lands statute was incorrect. 

The circuit court concluded that, as a matter of statutory

interpretation, Criminal Trespass onto State Lands is exempted

from the “property crime” designation because this offense cannot

“be used to establish a felony conviction” under the Habitual

Property Crime law. HRS § 708-814.7(4). We agree with the State

that this reasoning conflates the definition of a property crime

with a particular subclass of property crimes that can support

enhanced penalties under the habitual property crime statute. As

the ICA correctly concluded, Criminal Trespass onto State Lands

is by definition a “property crime,” sentencing exclusions

notwithstanding. 

Nonetheless, the ICA was also correct to hold that the

legislature was not concerned with Criminal Trespass onto State

Lands when it criminalized drug possession. In turn, the fact

that Enos was committing that offense when he was arrested does

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not preclude a court from determining that his conduct was de

minimis. Framing the question as simply one of statutory

interpretation, as the circuit court did and the State urged,

elides the true issue. The Criminal Trespass onto State Lands

statute does not need to be inflexibly classified as a “property

crime” or not, nor does committing a property crime determine

whether Enos’s conduct cannot be considered de minimis. Rather,

the operative question is whether the defendant’s conduct (which,

here, involved Criminal Trespass onto State Lands) falls within

“the harm or evil sought to be prevented” by the drug statute. 

HRS § 702-236(1)(b). The ICA concluded that the legislature was

not concerned with property crimes as a class, but “with the type

of property crime actually associated with dangerous drug use.” 

It so concluded based on legislative history that pinpointed

specific kinds of crimes that posed a particular concern. 

A review of the legislative history confirms that

Criminal Trespass onto State Lands does not fall within the ambit

of the legislature’s concerns over drug crimes. The language

“property and violent crimes,” which, as mentioned, we have

adopted in describing the legislative intent in criminalizing

drug possession, see, e.g., Viernes, 92 Hawai#i at 134, 988 P.2d

at 199, traces to the 1996 amendments to HRS § 712-1243. The

House Standing Committee Report stated an intent to penalize

possession and distribution of drugs, and methamphetamine in

particular, in order “to counter increased property and violent

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crimes associated with the use of this dangerous drug.” H.

Stand. Comm. Rep. No. 734-96, in 1996 House Journal, at 1312; see

also S. Stand. Comm. Rep. No. 2597, in 1996 Senate Journal, at

1212 (“The proliferation of drugs has also had a direct and

significant impact on the increase in and severity of both

violent and property crimes.”).

However, HRS § 712-1243 has been amended twice more

since 1996, in 2002 and 2004, and those Acts put a finer point on

the kinds of crimes associated with drug use that concerned the

legislature. Act 161 of 2002, cited by the ICA and intended to

lessen penalties for nonviolent drug offenders, noted that “a

large percentage of persons who are arrested for both drug and

nondrug offenses (such as thefts, burglaries, robberies,

assaults, rapes, and homicides) test positive for recent drug

use.” 2002 Haw. Sess. Laws Act 161, § 1 at 569. In addition,

the legislature found:

Adults who are under the influence of a controlled substance

or alcohol commit many offenses to raise revenue to support

their habits. Some mind and mood altering drugs induce

criminal and often violent behavior . . . . Some drugs may

also reduce an offender’s ability to empathize with a

potential victim, resulting in episodes of seemingly

mindless violence.

Finally, some crimes, including crimes of violence, are

committed in the normal course of conducting illicit drug

businesses and enterprises. These include strong-arm

robberies and “rip-offs,” violent retaliations for these

offenses, and efforts to protect markets and “turf” by means

of intimidation and terrorism directed against “would be”

competitors and drug purchasers who patronize competing drug

distributors. 

2002 Haw. Sess. Laws Act 161, § 1 at 569 (emphases added). 

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The 2004 amendments responded specifically to

methamphetamine addiction, and while the Act’s language focused

less on drug-related crimes than the 2002 amendments, the

Preamble stated its purpose as, in relevant part, “deter[ring]

the proliferation of drug trafficking and importation into

Hawaii” and “expand[ing] access to treatment for first time

nonviolent drug offenders.” 2004 Haw. Sess. Laws Act 44, § 1 at

205 (emphasis added).

Thus, the most recent amendments to HRS § 712-1243

indicate that the legislature’s concern with drug-related crimes

has focused primarily on violence. The history of both the 2002

and 2004 amendments evince the legislature’s intent to be more

lenient on nonviolent offenders while preventing and punishing

crimes of violence. To the extent the legislature was motivated

by preventing property crimes, it was concerned with, as the ICA

put it, “the type of property crimes actually associated with

dangerous drug use,” such as theft, burglary, and robbery; not

simply property crimes as a category.10

Accordingly, the ICA was correct when it concluded that

deterring Criminal Trespass onto State Lands, a “property crime”

to be sure, did not motivate the legislature in passing and

subsequently amending § 712-1243. In turn, Enos could commit the

10 To be clear, committing a property crime associated with dangerous

drug use - i.e., the kind of property crime that motivated the legislature to

criminalize possession of any amount of a dangerous drug - does not foreclose

de minimis dismissal. The attendant circumstances must be evaluated in each

individual case to determine whether the defendant caused or threatened “the

harm or evil sought to be prevented” by the statute. HRS § 702-236(1)(b).

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property crime of Criminal Trespass onto State Lands while still

warranting de minimis dismissal of the drug possession charge. 

In other words, the fact that Enos was committing the property

offense of Criminal Trespass onto State Lands does not mean that

his conduct “actually cause[d] or threaten[ed] the harm of evil

sought to be prevented” by § 712-1243, as the State urged. HRS

§ 702-236(1)(b).

B. The Clearly Erroneous Findings of Fact Were Harmless

Given that the ICA’s analysis of the Criminal Trespass

onto State Lands offense presents no errors of law, we must next

turn to the errors of fact. The ICA agreed with the State that

“the circuit court clearly erred in finding that Enos was lying

‘inside’ the cardboard box and that the pipe and packet were

located ‘five feet away’ from Enos.” Enos concedes that these

points were clearly erroneous. The police report - evidence to

which the parties stipulated - stated that the officer was five

feet away from Enos, that the pipe was “near” Enos, and that Enos

was lying behind, not in, the box; these facts were not

controverted. However, Enos asserts that the ICA erred insofar

as it “[could not] conclude that the circuit court’s inclusion of

and reliance on FOFs 1 and 3 was harmless error.” 

We agree with Enos that these errors were harmless. 

While the ICA cited the “inclusion of and reliance on” the

erroneous findings as its basis to remand the case, an analysis

of the relevance of the erroneous findings shows that neither

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error affected the circuit court’s decision to dismiss. First,

Enos’s location relative to the cardboard box has no bearing at

all on the offense for which he was charged. His position

“behind” rather than “in” the cardboard box makes his conduct of

drug possession neither more nor less “harmful” or “evil” per the

de minimis statute, and so this erroneous finding of fact is

harmless.

That leaves the erroneous finding that the pipe and

pouch were five feet away from Enos when discovered. The State

argued that this fact bore directly on the matter of possession.

But Enos responded that in finding his conduct to be de minimis

under the drug possession statute, the circuit court must have

“presumed that he was in possession of the items.” In other

words, for a court to find that an offense is de minimis, it must

inherently find that all of the elements of the offense are met. 

Per Enos, this means that the distance between him and the

paraphernalia is inconsequential, because the court must have

necessarily concluded he possessed them, at least constructively,

in order to determine that his conduct was de minimis. 

We agree with Enos that the distance does not matter to

the issue of possession because the circuit court found, as it

must have, that the possession element was met. First, the

circuit court concluded explicitly that Enos had possessed the

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drugs in its COLs.11 Even if it had not, as we noted in Rapozo,

the de minimis statute derives from the Model Penal Code, the

commentary to which states that the de minimis statute

“authorizes courts to exercise a power inherent in other agencies

of criminal justice to ignore merely technical violations of

law,” and “[a]melioration of the letter of the law is both

necessary and inevitable[.]” 123 Hawai#i at 337, 988 P.2d at 333

(quoting 1 American Law Institute, Model Penal Code and

Commentaries, § 2.12 at 399, 404 (1962)) (emphases added). This

context shows that a violation of the letter of the law is

intrinsic to dismissing a charge as de minimis, and violation of

the letter of HRS § 712-1243 requires possession. Thus, the

five-foot distance does not bear on the issue of possession in

this case, because the dismissal of the charge as de minimis

inherently required the circuit court to find that the possession

element was met. As such, the ICA erred in concluding that the

plainly erroneous findings of fact were not harmless. 

C. The Circuit Court Was Within its Discretion to Grant the De

Minimis Motion. 

We must finally consider whether the circuit court

abused its discretion in granting the de minimis motion.12 We

hold that it did not. The circuit court did not “clearly

exceed[ ] the bounds of reason or disregard[ ] rules or

11 The pertinent COL read: “Defendant’s conduct of possessing a very

small amount of the drug . . . .” (Emphasis added.) 

12 The ICA did not reach this question and remanded the case to the

circuit court in light of the clear errors of fact. 

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principles of law or practice to the substantial detriment of”

the State when it concluded that Enos’s conduct did not “cause or

threaten the harm or evil sought to be prevented by” Promotion of

a Dangerous Drug in the Third Degree. Rapozo, 123 Hawai#i at

336, 235 P.3d at 332; HRS § 702-236(1)(b). 

In Fukagawa, we described Hawai#i’s drug laws as

“intended to control the use and sale of illicit drugs . . . and

to address related social harms, including property and violent

crimes.” 100 Hawai#i at 504, 60 P.3d at 905. As discussed

above, a review of the development of the Hawai#i drug law

framework since Fukagawa indicates that the “harm or evil sought

to be prevented by” Promotion of a Dangerous Drug in the Third

Degree includes deterring drug-related crimes, and violent crimes

in particular, while easing penalties on low-level, nonviolent

offenders. 

Although Promotion of a Dangerous Drug in the Third

Degree on its face applies explicitly to drugs in any amount,

“where a literal application of HRS § 712-1243 would compel an

unduly harsh conviction for possession of a microscopic trace of

a dangerous drug, HRS § 702-236 . . . may be applicable to

mitigate this result.” Vance, 61 Haw. at 307, 61 P.2d at 944;

see also Fukagawa, 100 Hawai#i at 504, 60 P.3d at 905. The

quantity possessed of a dangerous drug is “microscopic” or

“infinitesimal,” Vance, 61 Haw. at 307, 602 P.2d at 944, and de

minimis dismissal is warranted if the amount could not “produce a

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pharmacological or physiological effect.” Fukagawa, 100 Hawai#i

at 506, 60 P.3d at 907 (citing State v. Hironaka, 99 Hawai#i 198,

209, 53 P.3d 807, 817 (2002); State v. Balanza, 92 Hawai#i 279,

283–85, 1 P.3d 281, 285–87 (2000)). 

Even so, we have long insisted that “quantity is only

one of the surrounding circumstances a court must consider.” Id.

at 505, 60 P.3d at 906. “[B]efore [the de minimis statute] can

be properly applied in a criminal case, all of the relevant facts

bearing upon the defendant’s conduct and the nature of the

attendant circumstances regarding the commission of the offense

should be shown to the judge.” Park, 55 Hawai#i at 616, 525 P.2d

at 591. Possession of an amount of drugs capable of producing a

“pharmacological or physiological effect” may nonetheless warrant

dismissal as de minimis if the amount possessed approaches

“infinitesimal” - which is to say, a very small amount - and the

other attendant circumstances indicate that the defendant “did

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

the law defining the offense.” Vance, 61 Hawai#i at 307, 602

P.2d at 944; HRS § 702-236(1)(b); see also Viernes, 92 Hawai#i at

134, 988 P.2d at 199. In sum, Fukagawa presented the court’s

task in considering a de minimis motion on a drug charge as

follows:

Before dismissing a charge as a de minimis infraction,

a court must consider the amount of drugs possessed

and the surrounding circumstances to determine if the

defendant’s conduct caused or threatened the harm or

evil sought to be prevented by the law defining the

offense sufficiently to warrant the condemnation of

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conviction.

Fukagawa, 100 Hawai#i at 505, 60 P.3d at 905 (emphasis added). 

In the instant case, the circuit court concluded, based

on competing expert testimony, that the aggregate .005 grams of

substance containing methamphetamine could produce a

“physiological or euphoric effect” and therefore “[was] not a de

minimis amount.” However, it nonetheless decided to dismiss the

charge. While not de minimis, the circuit court concluded that

the amount possessed was “very small,” and the other attendant

circumstances supported dismissal. In particular, the circuit

court found that: “no other paraphernalia was found on [Enos’s]

person”; Enos “was not engaged in or suspected of engaging in any

violent activity”; he was trespassing onto state lands, but that

offense does fall within the ambit of the legislature’s concern

with respect to drug possession and property crimes; and the

trespassing offense occurred because he was homeless and “had

nowhere else to go.” 

Considering “the nature of the conduct alleged and the

nature of the attendant circumstances,” including quantity, it

was not an abuse of discretion for the circuit court to conclude

that Enos’s conduct “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[.]” HRS § 702-236(1). None of the attendant

circumstances indicated that Enos “cause[d] or threaten[ed]” any

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of the “harms or evils” the legislature contemplated in passing

and amending § 712-1243. Most importantly, Enos falls squarely

into the category of nonviolent, low-level offender that the

statute seeks to treat rather than incarcerate. While this alone

does not change the fact that Enos violated § 712-1243 and

thereby committed a felony, under these circumstances, including

the “very small amount” of substance containing methamphetamine

found, we hold that the circuit court did not abuse its

discretion in dismissing the charge against Enos. See Rapozo,

123 Hawai#i at 332, 235 P.3d at 328 (“A court abuses its

discretion if it clearly exceeded the bounds of reason or

disregarded rules or principles of law or practice[.]” (citation

omitted)).

To be clear, the quantity of drugs possessed remains a

critical consideration when deciding a de minimis motion on a

drug charge. It would be an abuse of discretion, for instance,

if a court gave no consideration at all to the quantity

possessed. Cf. Fukagawa, 100 Hawai#i at 504–05, 60 P.3d at

905–06. This would run counter to the legislature’s intent to

criminalize possession of “any dangerous drug in any amount.” 

HRS § 712-1243 (emphasis added). We only hold in the instant

case that the quantity possessed by a defendant may pass the

threshold into an amount capable of “produc[ing] a

pharmacological or physiological effect” without precluding a

court from dismissing a charge as de minimis. Fukagawa, 100

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Hawai#i at 506, 60 P.3d at 906. As here, if the amount possessed

is capable of producing such an effect but is nonetheless very

small, and if the other attendant circumstances weigh in favor of

dismissal, it is within a court’s sound discretion to dismiss the

charge as de minimis.

Moreover, even though the circuit court did not credit

the defendant’s argument that the substance containing

methamphetamine was not tested for purity, the form of the drug

and the place it was found -residue in a pipe and a bag - bears

on the de minimis analysis. The legislature decriminalized

paraphernalia possession in 2017. See HRS § 329-43.5 (Supp.

2017). In the Act making paraphernalia possession a violation,

the legislature found “that state funds are better spent on

community programs and rehabilitation of nonviolent, low-risk

drug offenders[.]” Act 72 § 1, 2017 Session Laws of Hawai#i at

367. This change puts the legislative intent behind the Hawai#i

drug scheme into sharper relief: possessing paraphernalia is not

a “harm or evil” that “warrants the condemnation of a

conviction,” and certainly not a felony conviction. HRS § 702-

236(1)(b). Enos was found with mere milligrams of residue of

unknown purity, which was recovered from two pieces of

paraphernalia, a pipe and a virtually-empty bag.13 During the

13 Drug paraphernalia is defined in HRS § 329-1 (Supp. 2016) as

all equipment, products, and materials of any kind which are

used, primarily intended for use, or primarily designed for

use, in planting, propagating, cultivating, growing,

harvesting, manufacturing, compounding, converting,

(continued...)

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hearing on the Motion before the circuit court, Enos asserted

that the charge was “attempting to pigeonhole what should be

paraphernalia drugs, which is a violation, into a felony

statute.” While the circuit court did not rely on this assertion

in its Order, “it is well-settled that ‘an appellate court may

affirm a judgment of the lower court on any ground in the record

that supports affirmance.’” Fukagawa, 100 Hawai#i at 506

(quoting State v. Dow, 96 Hawai#i 320, 326, 30 P.3d 96, 932

(2001)). Thus, we may consider the fact that the “very small

amount” of methamphetamine that Enos possessed was recovered from

paraphernalia, possession of which is only a violation, in

reaching our conclusion that the circuit court did not abuse its

discretion. This attendant circumstance relates directly to the

“harm or evil” of Promotion of a Dangerous Drug in the Third

Degree, which the legislature could not have intended to be used

to subvert its changes to the paraphernalia statute.

From the above analysis, we conclude that the circuit

court did not “clearly exceed the bounds of reason” nor did it

“disregard rules or principles of law” when it granted Enos’s

Motion. Rapozo, 123 Hawai#i at 332, 60 P.3d at 328. 

13(...continued)

producing, processing, preparing, testing, analyzing,

packaging, repackaging, storing, containing, concealing,

injecting, ingesting, inhaling, or otherwise introducing

into the human body a controlled substance in violation of

[the Uniformed Controlled Substances Act, HRS Chapter 329.] 

This definition includes: “envelopes[ ] and other containers used,

primarily intended for use, or primarily designed for use in packaging small

quantities of controlled substances” and “objects used . . . in inhaling . . .

methamphetamine into the human body” like a “glass . . . pipe.” HRS § 329-1.

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Accordingly, the circuit court did not abuse its discretion in

dismissing the charge against Enos as de minimis. 

IV. CONCLUSION

The ICA correctly analyzed the Criminal Trespass onto

State Lands statute and its relation to the de minimis motion

brought by Enos in this case. However, the ICA erred by holding

that the clearly erroneous findings of fact were not harmless. 

The circuit court did not abuse its discretion by dismissing the

charge against Enos as de minimis. Thus, we reverse the June 28,

2019 judgment on appeal of the ICA.

Jon N. Ikenaga

for petitioner

Stephen K. Tsushima

for respondent

/s/ Mark E. Recktenwald

/s/ Paula A. Nakayama

/s/ Sabrina S. McKenna

/s/ Richard W. Pollack

/s/ Michael D. Wilson

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