   *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***




                                                             Electronically Filed
                                                             Supreme Court
                                                             SCWC-29799
                                                             31-JUL-2012
                                                             09:03 AM




           IN THE SUPREME COURT OF THE STATE OF HAWAI#I

                                ---o0o---


                         STATE OF HAWAI#I,
                  Respondent/Plaintiff-Appellant,

                                   vs.

              RAYMOND L. FOSTER, also known as “RAY,”
                  Petitioner/Defendant-Appellee.


                             NO. SCWC-29799

         CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
                (ICA NO. 29799; CR. NO. 06-1-0449)

                             JULY 31, 2012

         RECKTENWALD, C.J., NAKAYAMA, AND MCKENNA, JJ.,
     AND CIRCUIT JUDGE LEE, IN PLACE OF DUFFY, J., RECUSED;
              WITH ACOBA, J., CONCURRING SEPARATELY

               OPINION OF THE COURT BY NAKAYAMA, J.

          In this case we hold that mere proximity and power to

exercise control over contraband are insufficient to sustain a

conviction for possession absent evidence of intent.

Petitioner/Defendant-Appellee Raymond L. Foster was found guilty
   *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***



by a jury of, inter alia, one count of being a felon in

possession of a firearm and one count of being a felon in

possession of ammunition.     Following the jury verdict, the

Circuit Court of the Second Circuit1 granted Foster’s renewed

motion for judgment of acquittal on those two counts, concluding

that the evidence adduced at trial did not establish that Foster

had the requisite intent to exercise dominion and control over

the subject firearm and ammunition.       On appeal by

Respondent/Plaintiff-Appellant State of Hawai#i, the Intermediate

Court of Appeals (“ICA”) concluded that there was sufficient

evidence of intent, vacated the circuit court’s order granting

Foster’s renewed motion for judgment of acquittal, and remanded

for resentencing based on the jury’s guilty verdicts.           We

accepted Foster’s application for writ of certiorari to consider

his contention that the ICA’s decision was inconsistent with the

law of constructive possession in this jurisdiction, and we now

conclude that the ICA erred in vacating the circuit court’s order

granting Foster’s renewed motion for acquittal of both the

firearm and ammunition charges.       In light of the countervailing

evidence in the record demonstrating that the firearm and

ammunition were in the possession of Foster’s passenger Phillip

Malano, we hold that Foster’s ownership of the vehicle involved


     1
          The Honorable Joel E. August presided.

                                    2
     *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***



and his proximity to the items at the time of arrest were,

without more, insufficient to establish his intent to exercise

dominion and control over the items and thus his constructive

possession of them.      Accordingly, we vacate the judgment of the

ICA and reinstate the circuit court’s order granting Foster’s

renewed motion for judgment of acquittal of the firearm and

ammunition charges.

                               I.   BACKGROUND

A.    Factual Background

            At around 2:05 a.m. on August 27, 2006, Department of

Land and Natural Resources (“DLNR”) conservation enforcement

officers Larry Pacheco and John Yamamoto were patrolling for

illegal night hunting on the Pi#ilani Highway, located in the

County of Maui.     At that time, Pacheco and Yamamoto were driving

toward the remote Kaupo area and saw a vehicle coming from that

direction, as well as “a bright strong light moving back and

forth, which might be an indicator of night hunting.”             Pacheco

and Yamamoto used their DLNR vehicle to block the lane of travel

heading back toward town and flagged down the vehicle, “a white

two-door Toyota 4Runner[,]” as it approached; it stopped

approximately twenty to twenty-five yards in front of them.              The

officers then approached the vehicle, and Yamamoto “heard a sound

like a hunting rifle type slide chamber.”           There were four people


                                      3
   *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***



in the 4Runner: Foster in the driver’s seat, Malano in the front

passenger seat, Wendy Gonsalves in the rear on the driver’s side,

and Malia Saunders in the rear on the passenger’s side.           Pacheco

approached the 4Runner on the passenger’s side and “saw an

ammunition clip [i]n the center between the driver and passenger

on the seat.”   Pacheco and Yamamoto then ordered all four people

out of the 4Runner; Pacheco handcuffed Foster and conducted a pat

down search but did not find any ammunition on Foster’s person.

          In order for the rear seat passengers to exit the

4Runner, Yamamoto slid the front passenger seat forward; at that

time he observed a rifle “on the floor panel fronting Malia

Saunders.”   Pacheco also testified that the rifle “was on the

floor panel of the foot area fronting Saunders, and it was not

under the front passenger’s seat.”       During the stop, Pacheco also

confirmed that Foster was the registered owner of the 4Runner and

that Malano had an outstanding arrest warrant.

          Foster agreed to make a statement to Pacheco after

being advised of and waiving his constitutional rights.           Foster

said that he picked up Malano earlier in the evening and that

Malano had a black ukulele case with him.         The two men then

picked up Saunders and Gonsalves and headed toward Kaupo.            In the

Kanaio area, “Malano needed to take a break, and Foster pulled

over on the side of the road.”      Malano then got out of the


                                    4
    *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***



vehicle, took a rifle from the ukulele case,2 and fired several

rounds.   After Malano got back in the 4Runner, they started

driving back toward town.

            Foster and Malano were arrested by the Maui Police

Department (“MPD”) officers whom Pacheco and Yamamoto had called

for assistance, and Saunders and Gonsalves were released.

Saunders and Gonsalves were interviewed by MPD Officer Kenneth

Doyle the next day and, after being advised of their

constitutional rights, both gave verbal and signed written

statements.

            The Maui grand jury returned an indictment on September

1, 2006, charging Foster with committing, inter alia,3 the

offenses of Ownership or Possession Prohibited of Any Firearm, in

violation of Hawai#i Revised Statutes (HRS) § 134-7(b) and/or

(h), and Ownership or Possession Prohibited of Firearm

Ammunition, in violation of HRS § 134-7(b) and/or (h).4             Jury


      2
            According to the record, the rifle was a MAK-90 semiautomatic
assault rifle. Counsel for the State noted at oral argument that the rifle
would probably fit in a typical ukulele case.

      3
            Foster was also charged with several drug offenses. The circuit
court granted the State’s motion to dismiss some of those charges, and Foster
was convicted of the remaining charges. Foster appealed his conviction on
those remaining drug charges based on the circuit court’s denial of his motion
to suppress evidence obtained by Pacheco and Yamamoto during the stop, and the
ICA affirmed. State v. Foster, No. 30039, 125 Hawai#i 252, 258 P.3d 949, 2011
WL 3848009 (App. Aug. 31, 2011) (SDO). An application for writ of certiorari
was not filed in No. 30039.

      4
            HRS § 134-7 (Supp. 2005) provided then, as it does now, in
pertinent part:
                                                                   continue...

                                      5
     *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***



trial commenced on January 12, 2009.

B.    Relevant Trial Proceedings

            After the State’s case in chief, which consisted of

testimony from DLNR Officers Pacheco and Yamamoto, MPD Officer

Doyle, and MPD Sergeant Barry Aoki,5 Foster moved orally for

judgment of acquittal as to the firearm and ammunition charges.

The court denied the motion but indicated that “certainly there

are some questions with regard to the charges regarding the

weapon itself.”     Both Saunders and Gonsalves chose not to

testify, asserting their Fifth Amendment rights against self-

incrimination; the court then allowed defense counsel to read

portions of their written statements into evidence.             According to

the portions of these statements read into evidence, the four



      4
       ...continue
            (b) No person who is under indictment for, or has waived
            indictment for, or has been bound over to the circuit court
            for, or has been convicted in this State or elsewhere of
            having committed a felony, or any crime of violence, or an
            illegal sale of any drug shall own, possess, or control any
            firearm or ammunition therefor.

            . . .

            (h) Any person violating subsection (a) or (b) shall be
            guilty of a class C felony; provided that any felon
            violating subsection (b) shall be guilty of a class B
            felony. . . .

Prior to trial, the parties stipulated that Foster had a prior felony
conviction as of August 27, 2006.

      5
            Sergeant Aoki only testified that he was responsible for test
firing the rifle recovered from the 4Runner. The State also called MPD
Criminalist Julie Wood and MPD Evidence Custodian Kalaokana Akana to testify;
their testimony was pertinent only to the drug charges.

                                      6
    *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***



people in the 4Runner “were smoking ice and marijuana” and Malano

was loading bullets into the ammunition clip; at some point they

stopped, and Malano got out of the 4Runner and shot at a junk

car6 on the side of the road; Gonsalves “was loading the gun at

one point when [Malano] was loading the clip”; later, upon being

stopped by the DLNR officers, Malano threw the rifle to the back

seat and it landed on Saunders’s lap; and Saunders and Gonsalves

then kicked the gun to the floor.         Foster did not testify.        The

defense then introduced into evidence Malano’s judgment,

conviction, and sentence arising out of the same incident, and

the court took judicial notice that Malano was found guilty of

possessing the same items that Foster was charged with possessing

in this case.     The defense then rested.

            During jury deliberations, the jury communicated the

following question to the court: “Is possession determined by

just being present with the object?          Doesn’t there have to be

connection to that object by way of use or intent to use?”               The

court responded by referring the jury to Jury Instruction Number

25, which read in full:
                  A person is in possession of an object if the person
            knowingly procured or received the thing possessed, or was
            aware of his control of it for a sufficient period of time
            to have terminated his possession.
                  The law recognizes two kinds of possession, actual
            possession and constructive possession. A person who,


      6
            Photographs taken during the day following the stop show that
Malano had actually shot at an abandoned boat on the side of the road.

                                         7
   *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***



          although not in actual possession, knowingly has both the
          power and the intention at a given time to exercise dominion
          or control over a thing for a sufficient period of time to
          terminate his possession of it, either directly or through
          another person or persons, is then in constructive
          possession of it.
                The fact that a person is near an object or is present
          or associated with a person who controls an object, without
          more, is not sufficient to support a finding of possession.
                The law requires also that possession may be sole or
          joint. If one person alone has actual or constructive
          possession of a thing, possession is sole. If two or more
          persons share actual or constructive possession of a thing,
          possession is joint.
                The element of possession has been proved if you find
          beyond a reasonable doubt that the defendant had actual or
          constructive possession, either solely or jointly with
          others.

On January 22, 2009, the jury found Foster guilty as charged of

the firearm and ammunition charges.        On February 2, 2009, Foster

renewed his motion for judgment of acquittal as to those charges.

On February 11, 2009, the circuit court held a hearing and

granted the motion, concluding that there was insufficient

evidence to conclude that Foster had the intent to exercise

dominion or control over either the firearm or the ammunition,

even though the evidence did show that Foster had knowledge of

the items and power to exercise dominion or control over them.

As relevant to the State’s appeal and Foster’s application, the

court stated:
                It appears that the State did offer substantial
          evidence to show that the defendant had the power and
          ability to exercise control or dominion over the firearm.
          Firearm was in close proximity of the defendant and was
          found in the back seat of his vehicle. However, mere
          proximity to a prohibited item time [sic] is not sufficient
          to establish possession. The State must establish that the
          defendant had the intent to possess the firearm.
                The [c]ourt find[s] there was not sufficient evidence
          in the record even when drawing all inferences in the


                                       8
    *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***



            prosecution’s favor indicating that the defendant had the
            necessary intent to exercise control and dominion over the
            firearm.
                  The [s]tatements of defendant’s cohorts Ms. Gongsalves
            [sic] and Saunders and other circumstantial evidence adduced
            at trial do not provide a basis for inferring defendant’s
            state of mind with regard to the firearm. Accordingly, the
            [c]ourt’s going to grant defendant’s post-trial motion for
            judgment of acquittal regarding count five having to do with
            the firearm.
                  State offered evidence showing that the ammunition
            [w]as located in the front passenger area of the vehicle
            between defendant and Malano. And I don’t think, quite
            frankly, there was much dispute about that.
                  The officer, when he shined his flashlight in, did
            indicate where that was located. Although the ammunition
            was found closer to defendant’s person than the firearm,
            defendant’s closer proximity to the ammunition in and of
            itself does not compensate for the [in]sufficient evidence
            in the record with regard to defendant’s intent to exercise
            dominion and control over the ammunition even though there
            was evidence that he had the power and ability to do so.
                  In the [c]ourt’s view, the most reasonable inference
            which a juror could have made based upon the combined
            statements of the female passengers and the testimony of the
            DLNR officer who heard the distinct sound of the slide of
            the rifle as they approached, was that Malano immediately
            prior to the interception by the officer used the slide to
            remove the clip, and then put it beside him when he threw
            the weapon in the back seat.
                  The [c]ourt finds that the State has failed to come
            forward with substantial evidence such that a reason[able]
            mind might conclude that defendant had both the power and
            intention to exercise dominion and control over the
            ammunition as well. And, therefore, the [c]ourt is going to
            grant defendant’s motion for judgment of acquittal with
            regard to count six.

The circuit court entered its Findings of Fact, Conclusions of

Law and Order Granting Defendant Raymond Foster’s Renewed Motion

for Judgment of Acquittal on April 2, 2009, and the State filed

its Notice of Appeal on May 1, 2009 pursuant to HRS § 641-13(9).7


      7
            HRS § 641-13 (Supp. 2008) provided then, as it does now, in
pertinent part:

            An appeal may be taken by and on behalf of the State from
            the district or circuit courts to the intermediate appellate
            court, subject to chapter 602, in all criminal matters, in
                                                                   continue...

                                      9
     *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***



C.    The ICA’s October 18, 2011 Summary Disposition Order

            On appeal to the ICA, the State argued that the circuit

court erred as a matter of law in granting the post-trial motion

for judgment of acquittal by (1) disregarding the applicable

standard of review for such motions and by (2) disregarding the

applicable law on constructive possession.

            With regard to the first point, the State argued that

by granting the renewed motion for judgment of acquittal after

the jury had found Foster guilty on the firearm and ammunition

charges, the circuit court essentially usurped the province of

the jury “by disregarding the province of the fact finder to

assess the credibility of the witnesses, weigh the evidence, and

draw justifiable inferences of fact.”          (Citing State v. Timoteo,

87 Hawai#i 108, 112-13, 952 P.2d 865, 869-70 (1997)).

Significantly, the State noted that when Foster initially moved

for judgment of acquittal after the State rested, the circuit

court denied that motion after finding that the evidence

presented, “considered in the light most favorable to the State

and with deference to the right of the jury to assess the



      7
       ...continue
            the following instances:

            . . .

            (9) From a judgment of acquittal following a jury verdict of
            guilty[.]

                                       10
    *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***



credibility of the officers, . . . was sufficient for a prima

facie case.”    Although Foster did not argue against the State on

this issue, the ICA nevertheless concluded that the circuit court

did not “usurp the province of the jury” in granting the renewed

post-verdict motion because Hawai#i Rules of Penal Procedure

(HRPP) Rule 29(c) expressly allows the circuit court to grant a

motion in that situation.8       State v. Foster, No. 29799, 125

Hawai#i 380, 262 P.3d 669, 2011 WL 4953400, at *1 (App. Oct. 18,

2011) (SDO).    This point has not been further argued to this

court.

            With regard to the second point, the State argued that

the circuit court erred by finding that the State had not proven

that Foster was in possession of a firearm.           Specifically, the

State argued that, according to the analysis for possession set

out by this court in State v. Jenkins, 93 Hawai#i 87, 111-12, 997

P.2d 13, 37-38 (2000), the voluntary act of possession can “be



      8
            HRPP Rule 29(c) provides:

            Motion after discharge of duty. If the jury returns a
            verdict of guilty or is discharged without having returned a
            verdict, a motion for judgment of acquittal may be made or
            renewed within 10 days after the jury is discharged or
            within such further time as the court may fix during the 10-
            day period. If a verdict of guilty is returned the court
            may on such motion set aside the verdict and enter judgment
            of acquittal. If no verdict is returned the court may enter
            judgment of acquittal. It shall not be necessary to the
            making of such a motion that a similar motion has been made
            prior to the submission of the case to the jury.

(Emphasis added).

                                        11
   *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***



established by the defendant’s awareness of his or her control of

that object for a sufficient period to have terminated

possession.”   According to the State, “the facts established that

Foster was aware of the rifle and the ammunition in his vehicle

and had power and ability to exercise dominion and control for a

sufficient period of time, and his failure to terminate

possession thereof satisfied the Jenkins test for possession.”

Thus, as the State argued, the circuit court erred by granting

Foster’s motion of acquittal on the ground that he lacked the

intent to exercise dominion or control over the rifle and the

ammunition.

          In response, Foster argued that the State had not

presented any evidence to satisfy the element of intent for

constructive possession.     As a threshold matter, mere proximity

to the item is insufficient to establish constructive possession,

so the evidence of ammunition found on the front seat and the

rifle found in the rear passenger area was insufficient as a

matter of law to show intent to possess.        (Citing State v. Brown,

97 Hawai#i 323, 326, 37 P.3d 572, 585 (App. 2001); State v.

Moniz, 92 Hawai#i 472, 476, 992 P.2d 741, 745 (App. 1999)).

Similarly, Foster argued that the State’s reliance on his

ownership of the 4Runner was also inadequate because “the

defendant’s ownership or right to possession of the place where


                                    12
   *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***



the [items] were found, alone, [is] insufficient to support a

finding of the exercise of dominion and control.”          (Quoting

Moniz, 92 Hawai#i at 476-77, 992 P.2d at 745-46) (second brackets

added; internal quotation marks omitted).         Moreover, although the

State had presented evidence showing Foster’s knowledge of the

rifle and ammunition inside the 4Runner and the evidence

suggested that Foster had the power to exercise dominion and

control over the items, there was an absence of evidence showing

that Foster had intent to exercise dominion and control.            Foster

specifically argued that “knowledge alone is insufficient to

demonstrate intent.”    (Citing Moniz, 92 Hawai#i at 476-77, 992

P.2d at 745-46).    Foster also argued that it was not error for

the circuit court to deny his initial motion for acquittal but

grant his post-verdict motion for the same.         According to Foster,

this is because the circuit court focused on the issue of

Foster’s knowledge in the initial motion but then properly

directed its attention to the issue of intent in the renewed

motion and properly concluded that the State failed to adduce any

evidence as to intent.     Finally, Foster argued that the State

misinterpreted the requirements of Jenkins by arguing “that it

only needed to show that[] Foster was aware of the rifle and the

ammunition in his vehicle for a sufficient period of time to

terminate possession.”     In Foster’s view, acceptance of the


                                    13
   *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***



State’s argument “would allow the prosecution to prove

constructive possession based on mere knowledge of the firearm or

ammunition alone.”    Instead, Foster maintained that the State

must affirmatively prove possession by establishing that the

defendant “had both the power and the intent to exercise dominion

and control over the firearm or ammunition.”         (Citing Jenkins, 93

Hawai#i at 111, 997 P.2d at 37) (emphasis added).          Foster

concluded that because the State “failed to present any evidence

that demonstrated Foster’s intent to exercise dominion and

control over either the rifle or the ammunition, the trial court

properly granted Foster’s motion for judgment of acquittal.”

(Citing State v. Aplaca, 96 Hawai#i 17, 21, 25 P.3d 792, 796

(2001)).

           The ICA held that “there was substantial evidence to

support Foster’s convictions” on the firearm and ammunition

possession charges.    Foster, 2011 WL 4953400, at *1.         The ICA

based this conclusion on several facts and inferences: Foster’s

proximity to the rifle and the ammunition and his knowledge of

that proximity; Foster’s “ultimate control over who and what was

allowed inside the vehicle as well as the activities occurring

inside the 4Runner[,]” which signified that “Foster could have

refused to let Malano back into the 4Runner with the rifle and

ammunition[]”; and Foster’s lack of fear of Malano and the


                                    14
     *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***



absence of any threats from Malano, which was “circumstantial

evidence of, at a minimum, Foster’s willingness to assist Malano

in the latter’s activities involving use of the firearm and

ammunition.”     Id. at *2.    The ICA therefore concluded that

“[u]pon viewing the evidence presented in the light most

favorable to the State, there [wa]s sufficient evidence from

which the jury could have reasonably concluded that Foster was a

felon who intentionally possessed the subject rifle and

ammunition in violation of HRS § 134-7(b).”           Id.   Accordingly,

the ICA vacated the circuit court’s April 2, 2009 order and

remanded the case for resentencing based on the jury’s guilty

verdicts.    Id.   The ICA then filed its judgment on appeal on

November 10, 2011.

            Foster timely filed his application for writ of

certiorari on February 8, 2012.         The State filed a timely

response to the application on February 23, 2012.

                         II.   STANDARD OF REVIEW

A.    Motion for Judgment of Acquittal

            When reviewing a post-verdict motion for judgment of
            acquittal, we employ the same standard that a trial court
            applies to such a motion, namely, whether, upon the evidence
            viewed in the light most favorable to the prosecution and in
            full recognition of the province of the trier of fact, the
            evidence is sufficient to support a prima facie case so that
            a reasonable mind might fairly conclude guilt beyond a
            reasonable doubt. Sufficient evidence to support a prima
            facie case requires substantial evidence as to every
            material element of the offense charged. Substantial
            evidence as to every material element of the offense charged
            is credible evidence which is of sufficient quality and


                                         15
     *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***



            probative value to enable a person of reasonable caution to
            support a conclusion. Under such a review, we give full
            play to the right of the fact finder to determine
            credibility, weigh the evidence, and draw justifiable
            inferences of fact.

Timoteo, 87 Hawai#i at 112-13, 952 P.2d at 869-70 (quoting State

v. Jhun, 83 Hawai#i 472, 481, 927 P.2d 1355, 1364 (1996))

(citations and internal quotation marks omitted).

                             III.    DISCUSSION

            Foster’s application to this court raises a single

question: whether the ICA’s decision vacating the circuit court’s

order granting his motion for judgment of acquittal is obviously

inconsistent with decisions of this court, the ICA, and federal

courts related to constructive possession of contraband because

it is based primarily on Foster’s proximity to the contraband and

his status as owner and driver of the 4Runner.            Based on the

analysis that follows, we conclude that the ICA erred in holding

that the State presented sufficient evidence of Foster’s intent

to exercise dominion and control over the firearm and ammunition

to enable the jury to reasonably infer that Foster constructively

possessed those items.

A.    The Law of Constructive Possession in the State of Hawai#i

            It is a settled matter of Hawai#i law that possession

of an item may be either actual or constructive:
            The law, in general, recognizes two kinds of possession:
            actual possession and constructive possession. A person who
            knowingly has direct physical control over a thing at a


                                         16
   *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***



          given time is then in actual possession of it. A person
          who, although not in actual possession, knowingly has both
          the power and the intention at a given time to exercise
          dominion over a thing, either directly or through another
          person or persons, is then in constructive possession of it.

Jenkins, 93 Hawai#i at 110, 997 P.2d at 36 (quoting State v.

Mundell, 8 Haw. App. 610, 617, 822 P.2d 23, 27 (1991) (quoting

Black’s Law Dictionary 1163 (6th ed. 1990))) (emphases removed;

other citations omitted); cf. State v. Opulele, 88 Hawai#i 433,

439, 967 P.2d 265, 271 (1998) (“The correctness of [the foregoing

definition], as a general definition of possession, is not in

dispute.”).

          In Jenkins, this court clarified the state of mind

required to establish possession of an item and set out a two-

prong analysis for determining the voluntariness of “possession”

under HRS § 134-7(b):
          (1) the voluntary act of “possession” of an object itself
          is, by way of HRS § 702-202, satisfied where an individual
          acts knowingly with respect to his or her conduct; and (2)
          the requisite state of mind with respect to the attendant
          circumstances--i.e., the particular qualities of the object
          that make it illegal to possess it--is, by way of HRS § 702-
          204, satisfied by a reckless state of mind.

93 Hawai#i at 111, 997 P.2d at 37 (emphases in original).           Thus,

to meet the first part of the test, “the prosecution must first

adduce evidence that the defendant knowingly procured or received

an object, or was aware of his or her control of that object for

a sufficient period to have terminated possession.”           Id. (citing

HRS § 702-202).   To meet the second part, “the prosecution must,



                                    17
   *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***



at the very least, adduce evidence that the defendant possessed

the object in reckless disregard of the substantial and

unjustifiable risk that it was a firearm.”          Id. (citing HRS §

702-204).

            Where actual possession of the item is not at issue,

the State must prove a sufficient nexus between the defendant and

the item in order to establish constructive possession of the

item: “To support a finding of constructive possession the

evidence must show a sufficient nexus between the accused and the

[item] to permit an inference that the accused had both the power

and the intent to exercise dominion and control over the [item].

Mere proximity is not enough.”        Moniz, 92 Hawai#i at 476, 992

P.2d at 745 (quoting Mundell, 8 Haw. App. at 622, 822 P.2d at 29

(citations omitted)) (brackets added and internal quotation marks

omitted); see also Brown, 97 Hawai#i at 336, 37 P.3d at 585

(same).   Moniz further established that
            [p]roof of the defendant’s knowledge of the presence of [the
            items] and the defendant’s ownership or right to possession
            of the place where the [items] were found, alone, are
            insufficient to support a finding of the exercise of
            dominion and control. Other incriminating circumstances
            must be present to buttress the inference of knowing
            possession and provide the necessary link between a
            defendant and illegal [items].

92 Hawai#i at 476-77, 992 P.2d at 745-46.          This court has also

since noted that it “is correct that mere proximity to the

[item], mere presence, or mere association with the person who

does control the [item] is insufficient to support a finding of

                                     18
   *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***



possession.”   State v. Hironaka, 99 Hawai#i 198, 206, 53 P.3d

806, 814 (2002) (quoting Mundell, 8 Haw. App. at 620, 822 P.2d at

29) (brackets added and brackets removed; internal quotation

marks omitted).

B.   Foster Had Knowledge of the Firearm and Ammunition and Power
to Exercise Dominion and Control over Them

            Here, it is undisputed that Foster knew that the rifle

was inside the 4Runner, at least as of the time that Malano

removed the rifle from the ukulele case to shoot at the abandoned

boat on the side of the road.      It is also undisputed that at the

time the DLNR officers stopped the 4Runner, Foster had the power

to exercise dominion and control over the rifle and the

ammunition given the presence of those items inside the 4Runner

and Foster’s proximity to them.       However, even if knowledge and

proximity are conclusively established, intent cannot be thereby

presumed.   “[A]lthough [Foster] most certainly knew of the

existence of the items and their potential for illegal use,

knowledge and ability to possess do not equal possession where

there is no evidence of intent to make use of that knowledge and

ability.”   Moniz, 92 Hawai#i at 479, 992 P.2d at 748 (quoting

Spanish Fork City v. Bryan, 975 P.2d 501, 503 (Utah App. 1999))

(brackets added and brackets removed; emphasis removed).            That

is, intent to exercise dominion and control over the items must

thus be proven in addition to knowledge of the items and power to

                                    19
    *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***



exercise dominion and control over them.

C.   The Evidence Does Not Support the Inference That Foster Had
the Intent to Exercise Dominion and Control over the Firearm and
Ammunition

            As noted supra, to establish constructive possession of

an item, intent to exercise dominion and control over it must be

shown in addition to knowledge of the item and the power to

exercise dominion and control.        As the ICA stated in Moniz,

“[o]ther incriminating circumstances” beyond knowledge of the

item, the defendant’s proximity to the item, or the defendant’s

ownership of or right to possess the place where the item is

found, “must be present to buttress the inference of knowing

possession and provide the necessary link between a defendant and

illegal [items].”     Moniz, 92 Hawai#i at 477, 992 P.2d at 746.

The ICA has discussed the principles of constructive possession

in some depth in two cases; we conclude that the present case is

analogous to Moniz and distinguishable from Brown.9

            Moniz involved constructive possession of marijuana and

a scale containing methamphetamine residue found inside the

apartment belonging to defendant-appellant Juliet Moniz and her


      9
            This court has not yet decided a constructive possession case
based on whether power and intent to possess have been proven by the State.
In Jenkins, we vacated the defendant’s conviction and remanded for a new trial
based in part on our clarification of the state of mind required to establish
possession of an item. Jenkins, 93 Hawai#i at 115, 997 P.2d at 41. Shortly
thereafter, in Valentine, we vacated in part the defendant’s conviction and
remanded in order that the jury could be given new instructions pursuant to
Jenkins. State v. Valentine, 93 Hawai#i 199, 210, 998 P.2d 479, 490 (2000).

                                     20
   *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***



husband, defendant Richard Moniz.        Id. at 474, 992 P.2d at 743.

Juliet was found guilty of the charges relating to the marijuana

and the scale, but not guilty of a separate charge for the

methamphetamine residue.     Id. at 475, 992 P.2d at 744.        On

appeal, the ICA reversed Juliet’s conviction, holding that she

had the power but not the intent to possess the marijuana and the

scale.   Id. at 477, 478, 992 P.2d at 746, 747.         Because Juliet

and Richard lived together in the apartment, the ICA began by

noting that it is more difficult to conclude that constructive

possession exists “in cases such as this one, where a defendant

does not have exclusive possession or control of the place where

drugs are found and no drugs are found on the defendant’s actual

person.”   Id. at 476, 992 P.2d at 745.       The ICA concluded that

the power requirement was met with respect to the marijuana

because it “was found in a drawer in the bedroom dresser that

Juliet shared with Richard[,]” because “Juliet washe[d],

fold[ed], and put[] the clothes away and . . . would see anything

in the drawer[,]” because “the marijuana had been in the dresser

drawer for two months” at the time of her arrest, and because she

“admitted that she had seen the marijuana in the drawer and knew

what it was[.]”   Id. at 477, 992 P.2d at 746.        With respect to

the scale, although Juliet denied knowledge of its presence,

Richard testified that Juliet may have come into contact with the


                                    21
    *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***



scale in the process of cleaning the apartment.           Id. at 478, 992

P.2d at 747.    Further, Richard “admitted that he used the scale

to weigh the drugs he sold and bought and that Juliet knew that

he used and sold drugs and that some of the money he was giving

her each month was from his drug sales.”          Id.   Thus, the ICA

concluded that “a reasonable jury could conclude that Juliet . .

. was aware of the existence of the scale and its use by Richard

for illegal purposes.”        Id.   As to the intent requirement,

however, the ICA determined that there was “insufficient

evidence.”    Id. at 477, 992 P.2d at 746.        As for the marijuana,

“Richard and Juliet both testified that Juliet strongly opposed

Richard’s use of drugs, did not procure the marijuana, and never

smoked marijuana.”      Id.    Additionally, Juliet testified that she

could not even have disposed of the marijuana because it was

Richard’s, and “if [he] cannot find it, he going get mad.”               Id.

As for the scale, it was found in a bucket along with Richard’s

driver’s license but none of Juliet’s belongings; also, “there

[wa]s no evidence in the record that Juliet intended to use the

scale for any of the following prohibited purposes listed in HRS

§ 329-43.5(a)[.]”10     Id. at 478, 992 P.2d at 747.        As a result,


      10
            HRS § 329-43.5(a) (1993) provided then, as it does now, in
pertinent part:

            It is unlawful for any person to use, or to possess with
            intent to use, drug paraphernalia to plant, propagate,
                                                                   continue...

                                      22
    *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***



the lack of evidence to support Juliet’s intent to exercise

dominion and control over the marijuana and the scale

necessitated reversal of her conviction on those counts.                Id. at

480, 992 P.2d at 749.

             In Brown, the defendant was convicted of, inter alia,

possession of burglar’s tools and unauthorized control of a

propelled vehicle.     97 Hawai#i at 325, 37 P.3d at 574.         On

appeal, Brown argued that “the State failed to adduce substantial

evidence that he ‘constructively possessed the burglar’s tools’

that were found in a backpack on the floorboard near the front

passenger’s seat of the van.”        Id. at 326, 37 P.3d at 575.         The

ICA disagreed with Brown and affirmed his conviction and sentence

based on its conclusion that there was substantial circumstantial

evidence to establish Brown’s intent to possess the burglar’s

tools.     Id. at 340, 37 P.3d at 589.      According to the ICA’s

opinion, the facts showed that at the time of Brown’s arrest, the

van in question had been reported stolen, it was not moving

because it had “crashed into [a] wall,” “only the driver’s and

front passenger’s doors were open,” and “Brown was found on the


      10
       ...continue
            cultivate, grow, harvest, manufacture, compound, convert,
            produce, process, prepare, test, analyze, pack, repack,
            store, contain, conceal, inject, ingest, inhale, or
            otherwise introduce into the human body a controlled
            substance in violation of this chapter. . . .

(Emphasis added).

                                     23
   *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***



ground in front of the van on the driver’s side,” leading to the

inference that Brown had been driving the stolen van until it

crashed into the wall.     Id. at 334, 37 P.3d at 583.        Further, the

evidence showed that “[t]he backpack was on the floorboard near

the front passenger’s seat, open and within Brown’s reach, with a

pair of bolt cutters visibly sticking out of the backpack.”            Id.

at 337, 37 P.3d at 586 (citation omitted).         Because the van “had

just recently been stolen from NF, which testimony indicated was

a seafood distributor, the jury could reasonably infer that the

backpack containing the tools had not been placed in the van by

any employee of NF, but by Brown or the other passenger in the

stolen van.”   Id.   Although it was likely according to the

evidence that the backpack was located closer to the front

passenger, the ICA noted that “Hawai#i recognizes that two or

more persons can be in joint possession of an item[,]” id.

(citing Mundell, 8 Haw. App. at 617, 822 P.2d at 27), and that

“[w]here two co-conspirators are engaged in a joint criminal

activity, possession by one of the tools to further the criminal

activity will be imputed to the other.”        Id. (citing Solomon v.

State, 350 S.E.2d 35, 36 (Ga. App. 1986); Franklin v.

Commonwealth, 477 S.W.2d 788, 791 (Ky. 1972)).

          In this case, as in Moniz, there is no dispute that

Foster knew that the firearm and the ammunition were inside the


                                    24
   *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***



4Runner, and it could be inferred by rational jurors that Foster

had the power to exercise dominion and control over those items

based on his proximity to them inside the vehicle.          However,

Foster’s knowledge of and power over the items did not provide a

sufficient nexus between him and the items to prove possession in

the absence of intent to exercise dominion and control over the

items; intent is a separate requirement that must be proven in

addition to knowledge and power.         Here, as in Moniz, the State

failed to present any evidence that Foster had the intent to

exercise dominion and control over the firearm and the

ammunition.    As that lack of evidence could not have permitted a

reasonable juror to make the inference that Foster was in

constructive possession of the firearm and ammunition, the ICA

thus erred in vacating the circuit court’s order by concluding

that “there was substantial evidence to support Foster’s

convictions[.]”    Foster, 2011 WL 4953400, at *1.

            “To support a finding of constructive possession the

evidence must show a sufficient nexus between the accused and the

[object] to permit an inference that the accused had both the

power and the intent to exercise dominion or control over the

[object].    Mere proximity is not enough.”       Id. (quoting Brown, 97

Hawai#i at 336, 37 P.3d at 585) (brackets and emphases in

original; internal quotation marks omitted).         As the ICA stated,


                                    25
   *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***



“[t]he undisputed facts in the record reveal that Foster had

knowledge that the rifle and ammunition were in proximity to him

in the vehicle . . . .”     Id. at *2.    However, according to the

evidence adduced at trial, the rifle belonged not to Foster but

to Malano; Malano entered the 4Runner with the rifle, and at that

time it was inside a black ukulele case and hidden from view;

Malano retained control over the rifle from the time he entered

the 4Runner until the DLNR officers stopped the 4Runner; at no

time did Foster show any interest in, handle, or attempt to

handle the rifle; only Malano and Gonsalves handled bullets in

order to load them into the ammunition clip and into the rifle;

and the rifle was discovered on the floor of the vehicle between

the front passenger seat and rear passenger seat only because

Malano had thrown the rifle back to Saunders, who then kicked it

to the floor.   None of this evidence suggested that Foster

exercised, or intended to exercise, any control over the rifle or

that Foster was directing Malano’s use of the rifle.

          Furthermore, the record does not demonstrate that the

rifle was used in furtherance of criminal activity as

contemplated by Brown.     We also note that there was insufficient

evidence in the record to suggest a joint venture and/or an

agreement between Foster and Malano to go deer hunting or

shooting for pleasure in that remote area of Maui.          Cf. Brown, 97


                                    26
   *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***



Hawai#i at 337-38, 37 P.3d at 586-87 (imputing criminal liability

for constructive possession where there was substantial evidence

that the defendant and his passenger were engaged in joint

criminal activity).    Although Foster’s 4Runner was stopped by

Pacheco and Yamamoto because it was the first vehicle to approach

after they noticed the light panning and blocked the town-bound

lane of the highway, the officers did not subsequently discover

any light source on or in the car consistent with the panning

they had just observed.     Officer Yamamoto also testified that the

subject rifle in this case is not of a type commonly used for

hunting, and MPD Sergeant Aoki testified that it “can be” but is

“[n]ot typically[ used for hunting activity.]”          Moreover, while

the trial testimony does not specifically address whether other

hunting equipment was present in the 4Runner, the State conceded

at oral argument that there was no evidence of the 4Runner

containing any equipment or materials for hunting.

          The ICA also stated that Foster’s intent to have

dominion and control over the rifle and ammunition could be

inferred by the fact that
          Foster willingly and intentionally allowed Malano to re-
          enter the 4Runner with the rifle and ammunition after Foster
          knew that Malano was carrying a working rifle and
          ammunition. As the driver and owner of the 4Runner, Foster
          had ultimate control over who and what was allowed inside
          the vehicle as well as the activities occurring inside the
          4Runner. Foster could have refused to let Malano back into
          the 4Runner with the rifle and ammunition.

Foster, 2011 WL 4953400, at *2.       However, control, possession, or

                                    27
   *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***



even ownership of a place is not itself sufficient “to support a

finding of the exercise of dominion and control.”          Moniz, 92

Hawai#i at 477, 992 P.2d at 746.      As the United States Court of

Appeals for the Fifth Circuit aptly stated in a case cited by

Foster in his application, “when two or more people are occupying

a place, a defendant’s control over the place is not by itself

enough to establish constructive possession of contraband found

there.”    United States v. Crain, 33 F.3d 480, 486 (5th Cir.

1994).    The same court earlier stated, in another case cited by

Foster: “Thus, while dominion over the vehicle certainly will

help the government’s case, it alone cannot establish

constructive possession of a weapon found in the vehicle,

particularly in the face of evidence that strongly suggests that

somebody else exercised dominion and control over the weapon.”

United States v. Wright, 24 F.3d 732, 735 (5th Cir. 1994).

Although these federal cases are not binding on this court, they

are applicable to and instructive in the present case.           Here,

despite Foster’s status as driver and owner of the vehicle in

which the firearm and ammunition were found, no evidence beyond

that status demonstrates that Foster had any intent to exercise

dominion and control over the items; in fact, the evidence in the

record only links the items to Malano (and Gonsalves, who at some

point loaded a number of bullets into the rifle) from the time


                                    28
   *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***



Malano entered the 4Runner until the time that the DLNR officers

stopped the 4Runner later that night.        Although “dominion over a

vehicle in which a firearm is found can lead to an inference of

constructive possession[,]” that inference fails in the face of

“overwhelming countervailing evidence” linking the firearm to

another passenger.    Id.   That was the case in Wright, and that is

the case here.

          Mindful that our standard of review of a motion for

judgment of acquittal is the same as the trial court’s, namely

whether there is substantial evidence as to every material

element of the offense as charged, we thus hold that the ICA

erred in concluding that there was sufficient evidence of intent

for a jury to infer that Foster thus constructively possessed the

subject rifle and ammunition in violation of HRS § 134-7(b).               As

the Crain court stated: “We are especially reluctant to infer

constructive possession of contraband by one occupant [of a

vehicle] when there is evidence in the record explicitly linking

the contraband to another occupant.”        33 F.3d at 486 (citing

United States v. Mergerson, 4 F.3d 337, 349 (5th Cir. 1993)).

Here, the State’s evidence only went so far as to show Foster’s

ownership of and presence in the 4Runner and his proximity to the

firearm and ammunition.     Accordingly, absent evidence of intent,

the circuit court correctly granted Foster’s renewed motion for

judgment of acquittal, and the ICA erred in vacating the circuit

                                    29
   *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***



court’s judgment.

                            IV.   CONCLUSION

          Based upon the foregoing, we vacate the ICA’s

November 10, 2011 judgment and reinstate the circuit court’s

April 2, 2009 order granting Foster’s renewed motion for judgment

of acquittal.

Cynthia Kagiwada for                /s/ Mark E. Recktenwald
petitioner
                                    /s/ Paula A. Nakayama
Richard K. Minatoya and
Renee Ishikawa Delizo for           /s/ Sabrina S. McKenna
respondent                          /s/ Randal K.O. Lee




                                    30
