Bullet in Brassiere is no De Minimis Matter

State v. Rapozo (HSC July 30, 2010)

Background. Tanya Rapozo was stopped by the police for driving erratically on Ala Wai Boulevard at around 1:15 a.m. She was arrested and a search at the station revealed that she had a .38 caliber bullet tucked into her brassiere. At the time of the search, Rapozo was a convicted felon. Her crimes included drug offenses and theft. Rapozo was charged with prohibited ownership or possession of any firearm or ammunition. HRS § 134-7(b) and (h). Rapozo filed a motion to dismiss on the grounds that charge was a de minimis infraction. Her only evidence was a declaration that stated she was going to convert the bullet into a charm bracelet. The circuit court granted the motion. The ICA vacated.

Analyzing De Minimis Infractions Requires Comparison of the Statutes. The trial court may dismiss an action as a de minimis infraction when, "having regard to the nature of the conduct alleged and the nature of the attendant circumstances," finds that the conduct "did not actually cause or threaten the harm or evil sought to be presented 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)(b). The trial court must consider all relevant circumstances "regarding the commission of the offense" as well as the offense conduct. State v. Viernes, 92 Hawai'i 130, 133, 988 P.2d 195, 198 (1999); see also State v. Fukugawa, 100 Hawai'i 498, 504, 60 P.3d 899, 905 (2005). The defendant has the burden to show all of those relevant circumstances to the trial court. State v. Oughterson, 99 Hawai'i 244, 256, 54 P.3d 415, 427 (2002). The defendant must also show that "the harm or evil sought to be prevented" was not caused or threatened by the offensive conduct or that the offense was "too trivial to warrant" conviction.

The Purpose of the Felon-in-Possession Statute is to Prevent Firearm and Ammunition use in Subsequent Crimes. In order to determine the purpose of the criminal statute, the HSC stated that courts must look primarily to the language of the statute. State v. Akina, 73 Haw. 75, 78, 828 P.2d 269, 271 (1992); State v. Ornellas, 79 Hawai'i 418, 423, 903 P.2d 723, 728. "We do not resort to legislative history to cloud a statutory text that is clear." State v. Kupihea, 98 Hawai'i 196, 206, 46 P.3d 498, 508 (2002).

This was the criminal offense:

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.

HRS § 137-(b).

According to the HSC, the statute "reflects the determination by the legislature that the possession of firearms or ammunition by certain categories of people raises an unacceptable risk that those items will be used for unlawful purposes." The HSC arrived to this conclusion by tracing the amendments to the statute over the years, which broadened the scope of prohibited person. The HSC also examined the legislative history.

Rapozo's Possession of a Single live Bullet in her bra fell Within the Intended Scope of Criminal Conduct. The HSC held that the possession of a single, live bullet by a felon convicted of drug offenses "directly implicat[ed] the precise harm that the legislature sought to avoid[.]" The legislative history, according to the HSC, revealed a concern about the relationship between drugs and violence with firearms and ammunitions.

Rapozo's Conduct was not too Trivial Either. The HSC also examined whether Rapozo's conduct was too trivial to warrant a conviction. The HSC reconfirmed that "all relevant facts bearing on Defendant's conduct and the nature of the attendant circumstances reagrdign the commission of the offense" should be shown to the trial court. State v. Park, 55 Haw. 610, 616, 525 P.2d 589, 591 (1974). The HSC extracted nine factors from Park: (1) the background, experience, and character of the defendant; (2) the defendant's knowledge of the consequences; (3) the circumstances surrounding the offense; (4) the harm or evil caused or threatened by the offense; (5) the probable impact of the offense on the community; (6) the seriousness of punishment; (7) the mitigating circumstances; (8) possible improper motives of the complaintant or prosecutor; and (9) "any other date which may reveal the nature and degree of the culpability in the offense committed by each defendant." Id.

According to the HSC, the bare assertion by Rapozo that the bullet was going to be made into a charm bracelet did not satisfy her burden of showing that her conduct was too trivial. There was no explanation as to where she was going at 1:15 in the morning or where she was coming from. There was no information supporting her credibility. Even if she was found credible, there was no indication that the live bullet would remain a live bullet on her charm bracelet. The HSC remanded the case to see if Rapozo could meet that burden. The HSC added that it was not likely should could meet that burden.

Justice Acoba's Dissent. Justice Acoba agreed that the starting point is gleaning the legislative purpose for the criminal offense and that that intent comes primarily from the language of the statute itself. Justice Acoba, however, disagreed that the language of HRS § 134-7(b) revealed a legislative intent and accordingly turned to the legislative history. Justice Acoba's review of the committee reports over the years showed that the purpose of the harm or evil to be prevented by HRS § 134-7(b) is the "prevention of 'gun crimes,' and 'crimes involving the illegal possession and use of firearms.'"

That being the purpose of the criminal statute, Justice Acoba examined the relevant circumstances. Rapozo was pulled over and arrested for driving under the influence and driving without a license. There was no gun or other ammunition or drugs found on her person or in her car. Rapozo explained that she was going to make the bullet into a charm bracelet. In sum, Rapozo could not harm anyone with the bullet in her bra and that the use of the ammunition was in no way connected to the purpose for her arrest. Moreover, Rapozo's felony convictions were not crimes of violence and no firearms or ammunition were used.

Justice Acoba also took issue with the majority's analysis that the conduct was not too trivial. According to Justice Acoba, the prosecution did not dispute the evidence so there was no reason to test Rapozo's credibility. "As a general rule, if a party does not raise an argument at trial, that argument will be deemed to have been waived on appeal[.]" State v. Moses, 102 Hawai'i 449, 456, 77 P.3d 940, 947 (2004). Justice Acoba believed that the majority did not adequately defer to the discretion of the trial court. While he may not have agreed with the circuit court here, there was nothing in the record showing an abuse of discretion. Justice Duffy joined.

Finding Legislative Intent . . . Justices Acoba and Duffy disagreed with the majority that the legislative purpose and intent could be gleaned from the plain language of the statute. The majority, however, examined the history of amendments to the statute and concluded that it did. The rule requires the court to examine the plain language of the statute. Does that include the history of amendments to the statute? It would appear that the majority has departed from this well-established and often-formulated canon of construction.

When do you Bring the De Minimis Motion? When should a lawyer bring a de minimis motion? It's a tricky question. Here we had it as a pretrial motion and the HSC ultimately concluded that there was not enough evidence supporting the dismissal. The defendant has the burden of showing that even though his or her conduct was criminal, there were certain circumstances warranting dismissal. How should it be addressed as a pretrial motion? Does it assume that the defendant is guilty? In Akina, the defendant brought the motion at the close of the prosecution's evidence. That would allow more evidence for the trial court to make the necessary findings. Then again, it could be brought at the close of the defendant's case too--but by then the evidentiary portion of the trial is over. In theory, the motion could be a post-conviction motion and could be argued very similarly to a sentencing argument. At that point, the judge would be under some pressure--especially after a jury conviction--to grant the motion. These questions are tough. De minimis is tricky.