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IN THE SUPREME COURT OF THE STATE OF HAWAIʻI

---o0o---

________________________________________________________________

STATE OF HAWAIʻI,

Respondent/Plaintiff-Appellant,

vs.

ZALDY SUBIA, 

Petitioner/Defendant-Appellee.

________________________________________________________________

SCWC-12-0000794

CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS

(CAAP-12-0000794; CR. NO. 11-1-1405)

OCTOBER 24, 2016

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

OPINION OF THE COURT BY WILSON, J.

Petitioner/Defendant-Appellant Zaldy Subia (Subia) was 

convicted of methamphetamine trafficking in the second degree, 

Electronically Filed

Supreme Court

SCWC-12-0000794

24-OCT-2016

07:57 AM
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in violation of Hawaii Revised Statutes (HRS) § 712-1240.8.1 

The Intermediate Court of Appeals’ (ICA) September 23, 2015 

Judgment on Appeal, entered pursuant to its August 17, 2015 

Memorandum Opinion, affirmed Subia’s conviction. On appeal, 

Subia argues the ICA erred in holding 1) the Circuit Court of 

the First Circuit (circuit court) did not abuse its discretion 

by permitting Jeanette Ardiente (Ardiente), a criminalist with 

the Honolulu Police Department (HPD), to testify that the 

results of the Fourier Transform Infrared Spectrometer (FTIR)

conclusively established that the substances the police 

recovered from Subia contained methamphetamine; and 2) Subia’s 

conviction was based on sufficient evidence.

2 We conclude a 

proper foundation was not laid to introduce the FTIR test 

results and therefore, Ardiente should not have been permitted 

to testify regarding the FTIR test results. Further, there is a 

reasonable possibility that the admission of the test results

contributed to Subia’s conviction. Because the circuit court’s 

error was not harmless beyond a reasonable doubt, we vacate the 

Judgment on Appeal of the ICA and the judgment of conviction of the 

 

1

HRS § 712-1240.8 (2014) provides in part, as it did at the time 

relevant here:

(1) A person commits the offense of methamphetamine trafficking 

in the second degree if the person knowingly distributes 

methamphetamine in any amount.

2 In arguing this first point, Subia also asserts Ardiente’s 

testimony was inadmissible because her testimony violated the best evidence 

rule. (Citing Hawaiʻi Rules of Evidence (HRE) Rule 1002). In light of our 

disposition, we do not address this argument. 
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circuit court, and remand to the circuit court for a new trial.

I. Background

A. Circuit Court Proceedings

On October 5, 2011, Subia was charged with committing 

methamphetamine trafficking in the second degree. The “Felony 

Information” filed by the State charged Subia with violating HRS 

§ 712-1240.8:

On or about the 4th day of October, 2011, in the City and 

County of Honolulu, State of Hawaii, ZALDY SUBIA did 

knowingly distribute the dangerous drug methamphetamine in 

any amount, thereby committing the offense of 

Methamphetamine Trafficking in the Second Degree in 

violation of Section 712-1240.8 of the Hawaii Revised 

Statutes.

A jury trial3 commenced on June 13, 2012. 

At trial, the State presented testimony from HPD

Officer Brett Doronila, who testified that on October 4, 2011, 

as part of an undercover operation, he approached Subia and 

sought to purchase methamphetamine. Officer Doronila described 

his interaction with Subia as follows:

Well, I approached him. I asked him if “You get,” which 

is, through my training and appearance [sic], is street 

vernacular to see if you have any illegal drugs to sell. 

He said, “What you looking for?” I said “Clear.” Which is 

street vernacular for crystal methamphetamine. He said, 

“How much you looking for?” I said “Forty.” Forty 

dollars. He said, “Okay, wait here.”

After this conversation, Subia left to collect the alleged 

drugs. Subia returned with two clear Ziploc bags, which he 

handed to Officer Doronila, who then paid Subia. Officer 

 

3

The Honorable Colette Y. Garibaldi presided.
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Doronila testified that each of the bags contained “a white 

crystalline-like substance” that he asserted resembled 

methamphetamine. 

Subia’s description of his encounter with Officer 

Doronila substantially corresponds with Officer Doronila’s 

testimony. Subia explained that Officer Doronila asked Subia if 

he had drugs, and Subia replied, “no, but I could get [] some 

drugs that somebody get[.]” On cross examination, Subia agreed 

that he sold Officer Doronila drugs, and that he knew “clear 

means crystal meth.” Subia also agreed that he “went to get the 

meth,” spoke with the drug dealer and told him “[s]omebody want 

to buy forty, forty dollar worth” of “[c]rystal meth.” In 

response, the drug dealer “gave [Subia] the drugs,” Subia 

returned to Officer Doronila and “holding the meth, [] put it in 

[Officer Doronila’s] hands.” To the State’s question asking 

whether Subia had “[done] this before,” Subia replied, “Yeah, 

some.” 

Ardiente, a criminalist with HPD who conducted tests 

to identify the substances at issue, was presented by the State 

as an expert in the field of drug analysis and identification. 

She testified that she is trained in the “use” of the FTIR. 

Defense counsel did not object to Ardiente as an expert and the 

court determined Ardiente was an expert in the field of drug 

analysis and identification. 
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Ardiente testified that she analyzed the substances to 

determine if the bags contained controlled substances. To 

perform her analysis, Ardiente conducted a color test, a crystal 

test, and the FTIR test. The color and crystal tests are 

presumptive tests, meaning the tests indicate, but do not 

confirm, the presence of methamphetamine. Ardiente testified 

that the color and crystal tests indicated methamphetamine was 

present in both bags. 

The FTIR test is a confirmatory test, meaning it 

identifies a particular substance, to the exclusion of all 

others, within a reasonable degree of scientific certainty. 

Ardiente explained that the substances are placed on the FTIR, 

which shines a beam of infrared light on the substance. The 

light causes the molecules of the substance to vibrate. The 

FTIR reads the vibrations and creates a graph. Ardiente ran the 

test and compared the graphs created by the substances with a 

known graph of methamphetamine run on the same instrument. 

Ardiente testified the graphs of the substances matched the 

known graph of methamphetamine, indicating both substances

tested positive for methamphetamine. 

To lay a foundation to introduce the FTIR test 

results, Ardiente testified how the FTIR is checked to ensure it 

is in proper working order. Ardiente explained the FTIR has an 

“inbuilt validation program” provided by the manufacturer. She 
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stated that to do a performance check, you “run” the validation 

program and “it will print out a piece of paper saying whether 

or not the performance check passed.” The performance check is 

run daily before the first use of an instrument that day. 

Ardiente explained that HPD’s procedure is to keep the printout 

of the performance check and require criminalists to examine and 

initial the printout for each instrument. This establishes that 

the criminalist “did check it and ensure that [the FTIR] was in 

proper working condition.” 

Ardiente testified that a performance check was 

conducted on the FTIR prior to her testing of the substances on 

October 4, 2011. She was not the first criminalist to use the 

instrument and therefore did not run the performance check. 

Defense counsel objected to Ardiente’s testimony on the basis of 

hearsay, and the court initially sustained the objection. After 

the State reframed its question, defense counsel again objected 

based on hearsay. The State explained the line of questioning 

was foundational. The court overruled the objection and

permitted Ardiente to explain how she knew a check was performed 

on the instrument used. Ardiente testified she reviewed the 

printout of the performance check results for that instrument. 

Based on the October 4, 2011 printout, Ardiente asserted the 

FTIR was operating in accordance with the manufacturer’s 

specifications. She also testified she would not have used the 
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FTIR if it were not in proper working condition. 

Defense counsel asked to voir dire the witness after 

the State asked Ardiente, “based on all three of the tests that 

you had run on the evidence that was submitted, what were the 

results of all the tests?” On voir dire, defense counsel 

inquired whether the FTIR “should be checked and calibrated each 

time it is used.” Ardiente responded that the FTIR “does have 

performance checks” but did not state whether the FTIR is 

calibrated. 

After conducting voir dire of Ardiente, defense 

counsel objected to admission of her testimony regarding the 

test results based on hearsay, lack of foundation, and the 

Confrontation Clause. Defense counsel explained that because 

she did not conduct the performance check, her testimony was 

hearsay. Defense counsel argued that to lay a proper foundation 

to introduce the FTIR test results, the State was required to 

demonstrate the FTIR was accurate through the testimony of the 

analyst who conducted the test or by introducing the printouts 

of the performance check. The court overruled defense counsel’s 

objections because Ardiente testified she was trained by the 

FTIR manufacturer in quality control and followed the 

manufacturer’s procedure of reviewing the results of the 

performance check prior to using the machine. In addition, the 

court based its ruling on Ardiente’s testimony that she found 
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the FTIR to be in proper working condition even though she did 

not conduct the performance check. Thereafter, Ardiente 

testified, “[b]ased on the results of all the tests, I concluded 

that the substance[s] contained methamphetamine . . . .” She 

also said she had no reason to believe the FTIR was not working 

accurately. 

Subia raised the defense that he acted as a procuring 

agent for the buyer of methamphetamine, Officer Doronila. The 

jury was instructed that “[a] person who is the procuring agent 

for the buyer cannot be found guilty of distributing the 

unlawful drug because the act of buying falls outside the 

definition of to distribute.” Subia argued in closing that the 

evidence demonstrated that he acted on behalf of the buyer 

because he did not seek out a buyer and did not receive any 

compensation for assisting the transaction. According to the 

State, the evidence demonstrated that Subia acted on behalf of 

the seller. The State based its argument on the following 

evidence: 1) it would be unusual for a person not acting on 

behalf of a seller to “help” a stranger find drugs; 2) Subia 

“went straight to” the seller after Officer Doronila asked Subia 

if he had drugs; and 3) the seller trusted Subia.

The circuit court instructed the jury that Subia was 

charged with the offense of methamphetamine trafficking in the 

second degree. The court stated that “[a] person commits the 
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offense of methamphetamine trafficking in the second degree if 

he knowingly distributes methamphetamine in any amount.” The

court explained there are “two material elements” of the 

offense: “1, that on or about October 4th, 2011, in the City and 

County of Honolulu, State of Hawaiʻi, the defendant, Zaldy Subia, 

distributed methamphetamine in any amount. And 2, that the 

defendant Zaldy Subia, did so knowingly.” The court defined 

distribution to the jury as follows: “[t]o distribute” means to 

“sell, transfer, prescribe, give, or deliver to another, or to 

lead, barter or exchange with another, or to offer or agree to 

do the same.” 

The jury convicted Subia of methamphetamine 

trafficking in the second degree. Subia was sentenced on August 

22, 2012 to ten years in prison with a mandatory minimum of one 

year, and he was ordered to pay monetary assessments and fines. 

B. ICA Appeal

In a memorandum opinion, the ICA affirmed the circuit 

court’s judgment convicting Subia. State v. Subia, No. CAAP-12-

0000794, at 18 (Haw. Aug. 17, 2015) (mem.). The ICA concluded 

Ardiente’s testimony was sufficient to lay a proper foundation 

to admit the results of the color, crystal, and FTIR tests. Id.

at 12-13. The ICA emphasized that in State v. Manewa, 115 

Hawaii 343, 167 P.3d 336 (2007), this court did not cite to any 

testimony that the expert himself performed the daily check of 
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the instrument, “rather it was [the expert’s] knowledge that the 

laboratory followed a routine procedure to ensure that the 

[instrument] was in proper working order that was important.” 

Id. at 11. According to the ICA, Manewa established “testimony 

showing compliance with established procedures that provide 

assurance that the instrument is in proper working order is 

sufficient to lay the foundation for admission of the results of 

the instrument’s use.” Id. at 11. Ardiente testified the 

laboratory had a policy of conducting a performance check in 

accordance with the manufacturer’s recommended procedure, and 

required criminalists to check the printout of the performance 

test results to ensure the instrument was in good working order. 

Id. at 9, 11. The ICA interpreted Manewa to conclude that a 

proper foundation was laid to admit the test results and 

Ardiente’s testimony. Id. at 11-12. 

II. Standards of Review

A. Evidentiary Foundation

When a question arises regarding the necessary foundation 

for the introduction of evidence, the determination of 

whether proper foundation has been established lies within 

the discretion of the trial court, and its determination 

will not be overturned absent a showing of clear abuse.

State v. Eid, 126 Hawaii 430, 440, 272 P.3d 1197, 1207 (2012) 

(quoting State v. Assaye, 121 Hawaii 204, 210, 216 P.3d 1227, 

1233 (2009)).

B. Evidence Admissibility 
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[D]ifferent standards of review must be applied to trial 

court decisions regarding the admissibility of evidence, 

depending on the requirements of the particular rule of 

evidence at issue. When application of a particular 

evidentiary rule can yield only one correct result, the 

proper standard for appellate review is the right/wrong 

standard. However, the traditional abuse of discretion 

standard should be applied in the case of those rules of 

evidence that require a “judgment call” on the part of the 

trial court.

State v. Heggland, 118 Hawaiʻi 425, 434, 193 P.3d 341, 350 

(2008) (citation omitted).

III. Discussion

Subia asserts the State did not lay a sufficient

factual foundation to admit the results of the FTIR test. “[A] 

fundamental evidentiary rule is that before the result of a test 

made out of the court may be introduced into evidence, a 

foundation must be laid showing that the test result can be 

relied on as a substantive fact.” State v. Wallace, 80 Hawaii 

382, 407, 910 P.2d 695, 720 (1996) (citation omitted). A proper 

foundation for introducing a test result “would necessarily 

include expert testimony regarding: (1) the qualifications of 

the expert; (2) whether the expert employed ‘valid techniques’

to obtain the test result; and (3) whether ‘the measuring 

instrument is in proper working order.’” State v. Long, 98 

Hawaii 348, 355, 48 P.3d 595, 602 (2002). It is undisputed that 

Ardiente was a qualified expert and used valid techniques in 

conducting her test of the substances. As a result, the crux of 

Subia’s foundational issue is whether the FTIR was in proper 
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working order. 

Ardiente testified that the FTIR was working properly 

based upon the performance check that was conducted by another 

criminalist. She explained that every day an “inbuilt 

validation program” is used to check whether the FTIR is 

operating in accordance with manufacturer specifications. She 

stated that after you run the program, “it will print out a 

piece of paper saying whether or not the performance check 

passed.” Because the printout stated the FTIR passed the 

performance check, Ardiente concluded the FTIR was in proper 

working condition. The State did not introduce the printout 

into evidence. Thus, as Subia notes, “the only evidence that 

the FTIR was in proper working order was Ardiente’s testimony 

regarding the contents of the performance based printout.”

This case is factually similar to Manewa, 115 Hawaiʻi

343, 167 P.3d 336. In analyzing the admission of the test 

results of a gas chromatograph mass spectrometer (GCMS) in 

Manewa, we focused on the expert’s testimony that the laboratory 

applied an accepted manufacturer’s procedure to verify the 

instrument was in proper working order. The expert in Manewa

testified, “‘a routine check’ was done of the [instrument] ‘each 

and every morning’ ‘to ensure that all the parameters are within 

manufacturer specifications.’” Id. at 354, 167 P.3d at 347. 

The expert explained that “if any parameter is out of spec,” the 
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instrument is not used. Id. We determined that the expert’s 

testimony that he would not have used the instrument if it had 

not been in proper working order indicated he had personal 

knowledge that the instrument was in proper working condition. 

Id. at 354, 167 P.3d at 347. 

Likewise, in this case, Ardiente explained a daily 

check is conducted using a program provided by the manufacturer 

to determine whether the FTIR is in proper working order. 

Ardiente testified she would not have used the FTIR if it had 

not been working properly. The ICA therefore determined that 

Ardiente’s testimony laid a sufficient foundation to introduce 

the FTIR test results. Subia, mem. op. at 11. The ICA 

explained that in Manewa “it was [the expert’s] knowledge that 

the laboratory followed a routine procedure to ensure that the 

[the instrument] was in proper working order that was 

important.” Id. Because Ardiente testified a performance check 

was routinely conducted and she had knowledge that the 

performance check was conducted, the ICA concluded that it was 

irrelevant that Ardiente did not personally perform the 

performance check.4 Id. 

However, the distinction that the ICA did not consider 

is that Ardiente lacks personal knowledge that the performance 

 

4 The ICA did not consider whether the printout of the performance 

check could have been introduced into evidence.
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check was accurate. Although Manewa does not clearly state the 

expert ran the routine check, this court explicitly explained in 

Wallace that personal knowledge is an essential factor in laying 

a sound factual foundation. In Wallace, the expert could not 

testify that the calibration was accurate if the expert lacked 

personal knowledge that the instrument “had been correctly

calibrated and merely assumed that the manufacturer’s service 

representative had done so.”5 Wallace, 80 Hawaiʻi at 412, 910 

P.2d at 725 (emphases added). In Wallace, the service 

representative did not testify at trial and no business record 

was introduced indicating the instrument was correctly

calibrated. Id. We explained that “testimony based on 

information supplied by another person that is not in evidence 

is inadmissible. The rationale is that the witness’ knowledge 

is based on hearsay evidence and the trier of fact is unable to 

test the source’s trustworthiness.” Id. at 411, 910 P.2d at 724

(citing State v. Bannister, 60 Haw. 658, 659-60, 594 P.2d 133, 

134 (1979)). We therefore concluded the expert’s testimony as 

to the accuracy of the balance was based on inadmissible 

hearsay. Id. Thus, we held the prosecution failed to lay an 

adequate factual foundation that the results of an electronic 

 

5

We came to this conclusion even though the person conducting the 

check was the manufacturer’s service representative, who presumably would be 

the person most likely to properly follow the manufacturer’s procedure. 

Wallace, 80 Hawaii at 412, 910 P.2d at 725. 
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balance used to weigh cocaine were accurate. Id. at 412, 910 

P.2d at 725. 

Similarly, in Manewa, we also considered that the 

expert knew the electronic balance was calibrated semi-annually,

but had no personal knowledge that the balance was “correctly

calibrated.” 115 Hawaiʻi at 355, 167 P.3d at 348 (emphasis 

added). The individual calibrating the balance “fill[ed] out a 

form and indicate[d] that it was in proper working condition.” 

Id. The forms were not admitted into evidence. Id. We found

an “inadequate foundation was laid to show that the weight 

measured by the balance could ‘be relied on as a substantive 

fact[.]’” Id. at 356, 167 P.3d at 349 (citing Wallace, 80 

Hawaiʻi at 412, 910 P.2d at 725). Therefore, we concluded the 

expert’s “assumption that the balance was accurate was based on 

inadmissible hearsay.” Id. 

Likewise, as Subia argues, Ardiente’s testimony that 

the FTIR was in proper working condition is based on 

inadmissible hearsay. Ardiente had knowledge of the procedures 

used to test the FTIR, but her testimony that the FTIR was in 

proper working order was not based on her personal knowledge 

because she did not conduct the performance check. Because the 

printout was not admitted into evidence and the criminalist who 

conducted the performance check did not testify at trial, it is 

unknown whether the performance check was conducted as required 
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by the manufacturer. To assert the FTIR was in proper working 

condition, Ardiente had to assume the other criminalist 

correctly conducted the performance check. As Subia notes, the 

printout may have been admissible as a regularly conducted 

activity pursuant to HRE Rule 803(b)(6). However, because the 

State did not introduce the printout or the testimony of the 

criminalist who conducted the performance check, the State 

failed to establish the performance check had been conducted 

correctly. Because there is no reliable evidence demonstrating 

the FTIR was in proper working order, the State failed to lay a 

factual foundation that the FTIR was in proper working 

condition. 

Subia also argued there is no evidence that the FTIR 

was calibrated. We recognize “Manewa imposes the additional 

requirement that [the State] show ‘that the [instrument] had 

been properly calibrated by the manufacturer’s service 

representatives[.]’” Assaye, 121 Hawaiʻi at 217, 216 P.3d at 

1240 (Acoba, J., concurring) (citing Manewa, 115 Hawaiʻi at 354, 

167 P.3d at 347). In Manewa, we determined the evidence failed 

to establish reliability of the analytic balance where the 

record lacked evidence of the expert’s training in calibrating 

the balance and the prosecution failed to demonstrate “the 

balance had been properly calibrate[d].” Manewa, 115 Hawaiʻi at 

354, 167 P.3d at 347. 
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A sufficient foundation is not laid when the only 

evidence of the working status of an instrument is that the 

instrument was “checked.” State v. Long, 98 Hawaiʻi 348, 355, 48 

P.3d 595, 602 (2002). In Long, the prosecution asked its expert 

about the calibration of the machine. Id. In response, the 

expert failed to answer in the affirmative as to the 

calibration, and stated only that “all instruments are checked.” 

Id. We therefore concluded the prosecution did not lay a 

foundation “confirming that ‘the test result [could] be relied 

on as a substantive fact.’” Id. (citing Wallace, 80 Hawaiʻi at 

407, 910 P.2d at 720). 

Here, the record is inconclusive as to whether 

calibration was conducted. On voir dire, defense counsel asked 

Ardiente whether the FTIR “should be checked and calibrated each 

time it is used, right?” In response, Ardiente did not 

explicitly state whether the FTIR was calibrated. She stated 

only that “[i]t does have performance checks, yes.” This 

response is ambiguous as to whether the performance check 

constituted a calibration of the FTIR. Ardiente did not explain 

on direct examination or on voir dire how a performance check is 

conducted. Ardiente stated only that the FTIR has “an inbuilt 

validation program” that is “run” and that will “print out a 

piece of paper saying whether or not the performance check 

passed.” Based on the record, it is unclear whether the daily 
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performance check constituted calibration of the FTIR or whether 

it constituted a verification of the accuracy of the machine 

that would render calibration of the FTIR superfluous. Assuming 

the FTIR requires calibration, the fact that the instrument’s 

performance was, as a matter of routine, checked prior to use is 

insufficient when there is no evidence that the instrument was 

ever calibrated. Simply stating that a daily performance check 

was conducted does not necessarily mean the checks involved a 

calibration of the FTIR. Without evidence that the FTIR 

received periodic calibration or that such calibration was 

unnecessary, it is unknown whether the instrument or the 

performance check program was working properly. Accordingly, we 

hold the circuit court abused its discretion in admitting 

Ardiente’s testimony regarding the test results.

Under the harmless error standard, the appellate court 

“must ‘determine whether there is a reasonable possibility that 

the error complained of might have contributed to the 

conviction.’” State v. Pauline, 100 Hawaii 356, 378, 60 P.3d 

306, 328 (2002) (citation omitted). “If there is such a 

reasonable possibility in a criminal case, then the error is not 

harmless beyond a reasonable doubt, and the judgment of 

conviction on which it may have been based must be set aside.” 

State v. Gano, 92 Hawaii 161, 176, 988 P.2d 1153, 1168 (1999)

(citation omitted). 
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Ardiente’s testimony regarding the FTIR test results

was central to the State’s argument that Subia was guilty of 

distributing methamphetamine and had sold methamphetamine on 

behalf of the seller. As noted, Subia’s defense theory was 

posited on the argument that he was the procuring agent for the 

buyer. The strength of the State’s case would have been 

significantly lessened had the test results demonstrating that 

the substances were methamphetamine, to the exclusion of all 

other substances, not been admitted. Without the test results 

proving that the substances were methamphetamine, the State had 

limited evidence to support its theory that Subia was an agent 

for the seller: Subia received no monetary payment or paymentin-kind in return for his alleged service to the seller; further

Subia did not approach the buyer, rather, the buyer approached 

Subia. Without the test results, the State’s ability to counter 

Subia’s procuring agent defense would have been substantially 

reduced and Subia may have been able to raise a reasonable doubt 

in the minds of the jury. Accordingly, there is a reasonable 

possibility that admission of the test results contributed to 

the jury’s conclusion that Subia intended to distribute 

methamphetamine in collaboration with the seller. In other 

words, the fact that the jury received evidence that the 

substance given to Officer Doronila was methamphetamine may have 

persuaded the jurors that Subia acted on behalf of the seller 
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and was not the procuring agent for Officer Doronila. Thus,

admission of the FTIR test results was not harmless beyond a 

reasonable doubt. 

IV. Conclusion

Based on the foregoing, we vacate the judgment of the 

Intermediate Court of Appeals and the judgment of conviction of 

the circuit court and remand the case to the circuit court for a 

new trial.

William Jameson, Jr., /s/ Mark E. Recktenwald

for petitioner

 /s/ Paula A. Nakayama 

Brandon Ito,

for respondent /s/ Sabrina S. McKenna

/s/ Richard W. Pollack

/s/ Michael D. Wilson