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No. 29753  _,,$."
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IN THE INTERMEDlATE COURT OF APPEALS :$
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OF THE STATE OF HAWAl‘I §§

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STATE oF HAWAI‘I, Plaintiff-Appellee, v.
DANIEL WATANABE, Defendant-Appellant
APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT
(cR. N0. 03-1-0374(2))
SUMMARY DISPOSITION ORDER
(By: Foley, Presiding Judge, Fujise and Leonard, JJ.)
Defendant-Appellant Daniel Watanabe (Watanabe) appeals
from the March l9,

2009 judgment of conviction of the Circuit
Court of the Second Circuit1

(circuit court), which found him
‘guilty of Prohibited Acts Related to Drug Paraphernalia in

violation of Hawaii Revised Statutes (HRS) § 329-43.5 (1993).

Watanabe argues that circuit court erred by (l)
instructing the jury, which had told the court that it could not
reach a unanimous decision, to "return tomorrow morning and

continuing [sic] to deliberate with a view toward reaching a
verdict on all counts;" and (2) not correcting "inconsistent"
verdicts that convicted Watanabe of the paraphernalia charges

while acquitting him of drug promotion charges, under HRS §§ 712-
1243(l) and -1249 (l993 and Supp. 2009).

Upon careful review of the record and having given due .
consideration to the arguments advanced and the issues raised by

the parties, we resolve Watanabe's points of error as follows:
` l.

The supplemental instruction given to jurors to

continue deliberations "with a view toward reaching a verdict on

all counts" was not an Allen charge2 as prohibited by State v.

1

The Honorable Shackley F. Raffetto presided.

2 The Allen charge draws its name from Allen v. United States, 164 U.S.
492 (1896), in which the U.S. Supreme Court-approved a jury instruction that
exhorted dissenting jurors to reconsider the

maj0rity's.

ir opinion in light of the

NOT FOR PUBLICATION IN VVEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER

7 FajardO, 67 HaW. 593, 600-Ol, 699 P.2d 20, 24-25 (l985) and State

v. Villeza, 72 HaW. 327, 335-36, 817 P.2d lO54, 1058-59 (l99l).

The instruction neither facially nor impliedly
pressured dissenting jurors to accede to the majority‘s opinion.
FajardO, 67 HaW. at 600, 699 P.2d at 25. lt did not
inappropriately introduce outside concerns, such as the length of
deliberations or the possibility of mistrial, which might affect
deliberatiOnS. lQ;, Vil1eza, 72 Haw. at 335, 817 P.2d at lO58.

Furthermore, there was no "blasting" effect from the
instruction given. Q§; Fajardo, 67 Haw. at 601, 699 P.2d at 25
(jurors returned verdict one hour after faulty instruction
despite deliberating for four days). The supplemental
instruction was given after jurors had deliberated less than four
hours, and after receiving it, jurors deliberated for three more
hours before reaching the verdicts. Appellant has not
demonstrated that the instruction given created a "coercive
environment incapable of supporting a meaningful verdict based
solely upon the jury's consideration of the evidence." State v.
GOnSalveS, 108 HaWafi 289, 294-95, ll9 P.3d 597, 602-O3f(2005)
(quoting Villeza, 72 Haw. at 335, 817 P.2d at l058) (internal
quotation marks omitted).

Accordingly, Watanabe has failed to meet his burden to
prove that the jury instruction was erroneous, so we need not
address whether the instruction was harmless beyond a reasonable
doubt. § state v. Nichols, 111 Hawai‘i 327, 337, 141 P.3d 974,
984 (2006).

l 2. We conclude that Watanabe's points of error based
on allegedly "inconsistent" verdicts are without merit. Watanabe
premised his arguments on his assumption that the jury concluded
that he possessed a glass pipe containing crystal
methamphetamine. Watanabe's logic fails because HRS § 329-43.5
prohibits paraphernalia use, as well as possession. Contrary to
his assertion, sufficient evidence established that Watanabe used
the pipe or was an accomplice to his co-defendant's use of the

pipe. Two witnesses testified that Watanabe lit the pipe for his

NOT FOR PUBLICATION ]N WEST'S HAWAI°I REPORTS AND PACIFIC REPORTER

co-defendant, and the co-defendant testified that Watanabe took
*hits" himself. “The testimony of a single witness, if found
credible by the trier of fact, may constitute substantial
evidence to support a conviction." State v. Montgomerv, 103
Hawai‘i 373, 331, 32 P.3d 318, 826 (App. 2003). From additional
testimony regarding the search of the car where the drugs were
found, the jury may have concluded that there was reasonable
doubt that Watanabe possessed the drugs. Accordingly, the jury's
verdicts for conviction and acquittal could be reconciled.

Therefore, the March 19, 2009 judgment of conviction of
the Circuit Court of the Second Circuit is affirmed.

DATED: Honolulu, Hawafi, March 30, 2010.

On the briefs:

Benjamin E. Lowenthal, (lé§;;h%¢zE>
for Defendant-Appellant. `

Presiding Judgep

Pamela Lundquist,

Deputy Prosecuting Attorney,
County of Maui,

for Plaintiff-Appellee.

 

