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State v. Bovee

Supreme Court of Hawaii

May 18, 2017

STATE OF HAWAI'I, Respondent/Plaintiff-Appellee,
v.
CHARLES L. BOVEE, Petitioner/Defendant-Appellant.

         CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CAAP-14-0001047; CR. NO. 13-1-1748)

          Randall K. Hironaka for petitioner.

          Stephen K. Tsushima for respondent.

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

          OPINION

          POLLACK, J.

         This case arises from an undercover operation conducted by the Honolulu Police Department (HPD) on November 26, 2013. The operation resulted in the arrest of defendant Charles L. Bovee and codefendant Adam J. Apilado, both of whom were later charged by felony information with one count of methamphetamine trafficking in the second degree, in violation of Hawaii Revised Statutes (HRS) § 712-1240.8 (Supp. 2013) (repealed 2016)[1] Because the Circuit Court of the First Circuit's (circuit court) jury instruction on second-degree methamphetamine trafficking could have been reasonably understood as relieving the State of its burden to prove that the relevant state of mind applies to the "attendant circumstances" element of the charged offense, we hold that the instruction was prejudicially erroneous and remand this case for further proceedings.

         I. FACTS AND PROCEDURAL HISTORY

         A. Relevant Testimony at the Jury Trial

         At a jury trial that commenced on April 21, 2014, [2] HPD Officer Jerome Pacarro testified to the following description of events. On November 26, 2013, at approximately 1:30 p.m., he was assigned to an undercover operation involving an attempt to purchase narcotics from street-level dealers in Kaka'ako.[3] On the corner of Ohe Street and Olomehani Street, he saw two men standing (later identified as Bovee and codefendant Apilado), and Officer Pacarro made eye contact with them. Based on Officer Pacarro's observation of the men's proximity, conversation, body language, and demeanor, they "looked like two friends hanging out."

         Officer Pacarro parked his car, and Apilado approached his driver's side window and engaged him in conversation even though Officer Pacarro did not call out to Apilado or signal him to approach. The conversation progressed into Officer Pacarro asking Apilado if anybody "get"; the officer explained that in street vernacular (i.e., street slang), this means, "[D]oes anybody have narcotics for purchase, for sale?" Apilado asked what Officer Pacarro was looking for, and the officer replied that he was looking for "clear." Officer Pacarro explained that "[c]lear is another street vernacular used to describe crystal methamphetamine." Apilado asked how much Officer Pacarro wanted, and the officer responded that he wanted forty dollars' worth.

         During the conversation between Apilado and Officer Pacarro, Bovee stayed where he was, about ten feet away from Apilado and the officer. Apilado turned and yelled to Bovee to get the "stuff" for Officer Pacarro. Bovee did not respond or do anything. Apilado then told the officer that he was "going to send his boy" to get the methamphetamine, after which Apilado approached Bovee, who ended up coming to Officer Pacarro's driver's side window and told the officer that he had to go to a nearby tent to retrieve the "stuff." Bovee told Officer Pacarro that he should give him the money at that point, but Officer Pacarro told Bovee that he did not want to get ripped off and asked Bovee if he could go with him to get the "stuff." Bovee agreed. Bovee, Apilado, and Officer Pacarro walked together and approached a brown tent, but at the intersection across from where the brown tent was located, Apilado told Officer Pacarro that they should stop there and that the officer should give the money to Bovee. Officer Pacarro handed the money to Bovee, who then entered the tent alone. Five minutes passed, during which Officer Pacarro and Apilado engaged in conversation and Apilado yelled numerous times for Bovee to hurry up. Bovee then exited the tent with a white cigarette-type box in his hand and gave the box to Apilado, who then handed the box to Officer Pacarro. Inside the box, Officer Pacarro observed a "clear ziploc kind of bag, containing white crystalline substance." Between the time that Bovee exited the tent and gave Apilado the box, Officer Pacarro did not see anyone put anything into the box. The substance recovered by Officer Pacarro was later subjected to chemical analysis and identified as crystal methamphetamine.

         Bovee also testified to the following recounting of events. On November 26, 2013, a white car pulled up in the area where Bovee and Apilado were located. After the car parked, Apilado approached the car, and Apilado and the driver of the car "seemed like friends." After having a brief conversation with the driver, Apilado approached Bovee and asked Bovee to take some money from the driver and bring it to Apilado. Bovee was hesitant and refused to do Apilado's bidding, but Apilado insisted and "seemed a little more hostile as [Bovee] kept refusing, " so Bovee eventually approached the car.

         When Bovee approached the driver, the driver did not explain what the money was for and refused to give the money. Instead, the driver got out of the car and talked to Apilado; Bovee did not hear the conversation. Apilado and the driver started walking towards the corner of Ohe and Olomehani Streets, and Apilado told Bovee to follow. Apilado then told the driver to hand Bovee the money, and he instructed Bovee to take the money and deliver it to Cory, a lady in the brown tent. Bovee did not know how much money the driver handed him. Bovee delivered the money to Cory, who then went inside the tent even though Bovee did not tell her what he (Bovee) needed; while this was happening, Apilado and the driver were waiting at the corner of the intersection. When Cory exited the tent, she handed Bovee a pack of cigarettes. Bovee did not look inside the pack and delivered it to Apilado, who then handed it to the driver. Later that day, Bovee and Apilado were arrested.

         During his testimony, Bovee was asked whether he remembered saying during a post-arrest interview that he "knew Apilado was doing a drug deal." Bovee answered in the affirmative but clarified that he only knew about the fact that Apilado was engaging in a drug deal after he was arrested.[4]

         Bovee testified that at the time of the transaction, there were no conversations about drugs, the amount of drugs, or the amount of money that the driver gave, and Bovee only followed Apilado's instruction to take some money from the driver. Bovee did not get any money out of his participation in the transaction or any other benefit whatsoever. He did not know what happened to the money.

         B. Settling of Jury Instructions

         The State's proposed instruction for the charged offense of second-degree methamphetamine trafficking was identical to Hawai'i Pattern Jury Instructions--Criminal (HAWJIC) No. 13.62:

In Count I of the Information, the Defendant, CHARLES BOVEE, is charged with the offense of Methamphetamine Trafficking in the Second Degree.
A person commits the offense of Methamphetamine Trafficking in the Second Degree if he knowingly distributes methamphetamine in any amount.
There are two material elements of the offense of Methamphetamine Trafficking in the Second Degree, each of which the prosecution must prove beyond a reasonable doubt.
The two elements are:
1. That on or about November 26th [, ] 2013, in the City and County of Honolulu, State of Hawaii, the Defendant distributed methamphetamine in any amount; and
2. That the Defendant did so knowingly.

         The circuit court's proposed instruction on second-degree methamphetamine trafficking was as follows:

The Defendant, Charles L. Bovee, is charged with the offense of Methamphetamine Trafficking in the Second Degree.
A person commits the offense of Methamphetamine Trafficking in the Second Degree if he knowingly distributes methamphetamine in any amount.
There is one material element of the offense of Methamphetamine Trafficking in the Second Degree, which the prosecution must prove beyond a reasonable doubt.
The element is as follows:
1. That on or about the 26th day of November, 2013, in the City and County of Honolulu, State of Hawaii, the Defendant distributed methamphetamine in any amount, and he was aware that he was doing so.
"To distribute" means to sell, transfer, prescribe, give, or deliver to another, or to leave, barter, or exchange with another, or to offer or agree to do the same.

(Emphasis added.) The court explained the rationale behind its proposed instruction:

Court's proposed 1 is the elements instruction for the charged offense, meth traffic in the second degree. You see what I do here. I obviate the need to give them the definitions of knowingly. I obviate the need for the jury to figure out whether the element is conduct, attendant circumstances, or result of conduct.
I think it's clearly a conduct element. HAWJIC has two elements, with one element the state of mind, which they always do, which is wrong according to Aganon.[5]
And, like I said, I do it this way because I think the charge lends itself to this treatment. And it's -- anything I can do to keep the jury -- make their job easier, and keep them from having to do stuff, and to keep them from being confused, I like to do. So that's why I do it this way. I incorporate the knowing state of mind, and the definition of knowing as to conduct, right into the element.
And this obviates the need to give them, like I say, the definitions of knowingly. And it obviates the need for them to make certain decisions, like is -- what kind of element is this, et cetera. So that's why I do it this way.

(Emphases added.)

         The State objected to the court's instruction and requested that the court give the standard pattern instruction as provided by HAWJIC No. 13.62. The court explained that its proposed instruction simplifies the analytical framework for the jury because the instruction clarifies that the only element of the charged offense is a "conduct" element, thereby eliminating the risk of the jury erroneously characterizing the element of the offense and, consequently, the risk of the jury misapplying the "knowing" state of mind:

You know, they're never told what is this element. Is it conduct, the result of conduct, or attendant circumstance. So they have to make that decision. Before they can apply the correct definition of the state of mind to the element, they got to decide what kind of an element it is. Correct?
And what if they choose wrong? What if they say I think it's a result of conduct. . . . Then they're going to apply the wrong definition of knowingly to that element, because I think it's a conduct element.
You know, this obviates that for them. It takes them out of their hands. And it builds into the element, which is a conduct element, the definition of knowingly as to conduct, which is that the person is aware that his conduct is of that nature. And I think that's materially the same as the person's aware ...

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