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                                                               Electronically Filed
                                                               Supreme Court
                                                               SCWC-12-0000794
                                                               24-OCT-2016
                                                               07:57 AM




            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,
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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 payment-

in-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




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