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                                                              Electronically Filed
                                                              Supreme Court
                                                              SCWC-XX-XXXXXXX
                                                              24-APR-2020
                                                              08:22 AM




           IN THE SUPREME COURT OF THE STATE OF HAWAI‘I

                                ---o0o---


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

                                    vs.

                       PEKELO K.K. MELENDEZ,
                   Petitioner/Defendant-Appellee.


                            SCWC-XX-XXXXXXX

         CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
            (CAAP-XX-XXXXXXX; CR. NO. 1CPC-XX-XXXXXXX)

                             APRIL 24, 2020

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

                OPINION OF THE COURT BY POLLACK, J.

          In this case, the defendant was found to be in

possession of .005 grams of a substance containing cocaine, and

he was charged with possession of a dangerous drug in the third
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degree, a class C felony.          The defendant moved to dismiss the

charge, arguing that his violation of the statute was so trivial

that it did not warrant the condemnation of conviction.            The

circuit court agreed, finding that the violation was de minimis

and dismissing the charge.          On appeal, the Intermediate Court of

Appeals (ICA) vacated the order dismissing the charge.            It

concluded that the circuit court had erred in finding that the

cocaine the defendant possessed could not have had any

pharmacological or physiological effect upon consumption, and

that this error required the order of dismissal to be vacated.

The defendant sought certiorari review of the ICA’s decision.

We conclude that the ICA erred in holding that a defendant, in

order to prevail on a motion to dismiss a possessory drug

violation as de minimis, must prove that the possessed drugs

could not have any pharmacological or physiological effect.

Thus, the ICA’s vacatur of the dismissal order was erroneous.

                              I.    BACKGROUND

                         A.        General Overview

          On May 23, 2017, Pekelo K.K. Melendez was taken into

custody at the Circuit Court of the First Circuit’s (circuit

court) Adult Client Services Section (ACSS) for violating the

terms and conditions of Hawaii’s Opportunity Probation with

Enforcement (HOPE probation).          Incident to Melendez being taken

into custody, a Department of Public Safety deputy sheriff
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searched him and uncovered a plastic “baggie” containing a white

powdery substance from Melendez’s right-side pocket.              No other

items typically associated with drug use, such as a lighter or a

pipe, were found in the search.           Melendez was not observed or

known to be under the influence of any substance at the time of

his detention at ACSS.       The powdery substance in the plastic bag

was determined to be approximately .005 grams of a substance

containing cocaine.       There was no analysis as to the quantity of

cocaine contained within the .005 grams.           Melendez was

subsequently charged with promoting a dangerous drug in the

third degree in violation of Hawaiʻi Revised Statutes (HRS)

§ 712-1243.1

                 B.     Motion to Dismiss as De Minimis

            Melendez filed a motion to dismiss the charge on the

basis that possession of .005 grams of cocaine constituted a de

minimis violation and the charge should be dismissed pursuant to

HRS § 702-236.2       The State did not file a written opposition, but


      1
            HRS § 712-1243 (2014) provides as follows: “(1) A person commits
the offense of promoting a dangerous drug in the third degree if the person
knowingly possesses any dangerous drug in any amount. (2) Promoting a
dangerous drug in the third degree is a class C felony.”
      2
            HRS § 702-236 (2014) provides as follows:

            (1) The court may dismiss a prosecution if, having regard
            to the nature of the conduct alleged and the nature of the
            attendant circumstances, it finds that the defendant’s
            conduct:

                                                              (continued. . .)
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it orally opposed Melendez’s motion at the hearing on the

motion.3

            Both parties stipulated into evidence previous expert

testimony by Dr. George Read.         The testimony had been given at a

hearing on a motion to dismiss a possessory drug violation as de

minimis held approximately 17 years earlier.4            The parties also

stipulated to facts detailed in defense counsel’s declaration

submitted with Melendez’s motion to dismiss; no other evidence

was submitted in relation to Melendez’s motion.            In the

(. . .continued)

                   (a) Was within a customary license or tolerance,
                   which was not expressly refused by the person whose
                   interest was infringed and which is not inconsistent
                   with the purpose of the law defining the offense;

                   (b) Did not actually cause or threaten the harm or
                   evil sought to be prevented by the law defining the
                   offense or did so only to an extent too trivial to
                   warrant the condemnation of conviction; or

                   (c) Presents such other extenuations that it cannot
                   reasonably be regarded as envisaged by the
                   legislature in forbidding the offense.

            (2) The court shall not dismiss a prosecution under
            subsection (1)(c) of this section without filing a written
            statement of its reasons.
      3
            The Honorable Judge Todd W. Eddins presided over the proceedings
in this case.
      4
            Dr. Read, an expert in pharmacology, testified in relevant part
that doses of methamphetamine as low as .005 grams had been used to treat
Attention Deficit Hyperactivity Disorder (ADHD). Additionally, Dr. Read had
testified in State v. Viernes that .001 grams of methamphetamine was
incapable of producing any pharmacological or physiological effect. 92
Hawai‘i 130, 131–32, 988 P.2d 195, 196–97 (1999). Melendez cited the
testimony given in Viernes in his motion to dismiss, and the State discussed
that testimony at the hearing as if it were part of the stipulation, although
it was not.


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declaration, defense counsel averred in relevant part that (1)

Melendez was taken into custody at ACSS and subjected to a

custodial search; (2) that a baggie containing a small amount of

white powdery substance was discovered in Melendez’s right

pocket; (3) that no paraphernalia was located during the search;

(4) the bag was later analyzed as containing a substance

weighing .005 grams and containing cocaine; and (5) .005 grams

of a substance containing cocaine is neither usable nor

saleable.    Melendez also maintained that there was no evidence

indicating he was under the influence of any drugs at the time

of the custodial search.      The State opposed the motion, arguing

that Melendez’s violation was not de minimis because the amount

of drugs Melendez possessed was five times greater than .001

grams, which the expert testimony indicated was an amount that

could not have any pharmacological effect.

            After hearing argument from counsel, the court orally

granted Melendez’s motion with prejudice.          The court issued an

Order Granting Motion to Dismiss for De Minimis Violation (De

Minimis Order) on May 29, 2018.          In the De Minimis Order, the

court made several findings of fact and conclusions of law

related to its granting of Melendez’s motion.          The court




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discussed the statutory scheme of HRS §§ 712-1241,5 712-1242,6

and 712-1243, noting that the Hawaiʻi Penal Code quantifies

illegal possession by measurement in ounces or grams, not in

      5
           HRS § 712-1241(1)(a) and (2) (2014 & Supp. 2016) provides as
follows:

           (1) A person commits the offense of promoting a dangerous
           drug in the first degree if the person knowingly:

              (a) Possesses one or more preparations, compounds,
              mixtures, or substances of an aggregate weight of:

                 (i) One ounce or more, containing methamphetamine,
                 heroin, morphine, or cocaine or any of their
                 respective salts, isomers, and salts of isomers; or

                 (ii) One and one-half ounce or more, containing one
                 or more of any of the other dangerous drugs;

              . . . .

           (2) Promoting a dangerous drug in the first degree is a
           class A felony.
      6
           HRS § 712-1242 (2014 & Supp. 2016) provides as follows:

           (1) A person commits the offense of promoting a dangerous
           drug in the second degree if the person knowingly:

              (a) Possesses twenty-five or more capsules, tablets,
              ampules, dosage units, or syrettes, containing one or
              more dangerous drugs;

              (b) Possesses one or more preparations, compounds,
              mixtures, or substances of an aggregate weight of:

                 (i) One-eighth ounce or more, containing
                 methamphetamine, heroin, morphine, or cocaine or any
                 of their respective salts, isomers, and salts of
                 isomers; or

                 (ii) One-fourth ounce or more, containing any
                 dangerous drug; or

              (c) Distributes any dangerous drug in any amount.

           (2) Promoting a dangerous drug in the second degree is a
           class B felony.



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tenths, hundredths, or thousandths of grams.          Considering the

scheme as a whole, the court stated, “it is clear that under the

circumstances . . . Melendez’s possession of .005 grams of a

substance containing cocaine eclipses the ‘any amount’ element

of HRS § 712-1243,” and his possession did not actually cause or

threaten the harm sought to be prevented by the law.

           The court further stated that it considered the

stipulated testimony of Dr. Read, but discounted it because the

court was uncertain about its continued reliability in light of

its age.   The court concluded that the relevant attendant

circumstances were more persuasive and indicated that the

cocaine Melendez possessed could not have had a pharmacological

or physiological effect.      Particularly, the court found it

reasonable to infer that Melendez, as an individual under HOPE

probation supervision, was “keenly aware of the ‘useability’ or

‘saleability’ of .005 grams of a substance containing an

unspecified amount of cocaine.”          Since Melendez had not ingested

the cocaine in his possession it was reasonable to conclude that

the cocaine would not have had a pharmacological or

physiological effect.     Furthermore, the court found that .005

grams of cocaine is not capable of sale as a narcotic.            Finally,

the court concluded that the fact that Melendez was not in

possession of any items associated with drug use and was not


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under the influence of any drugs weighed strongly in favor of

the violation being de minimis.

                        II.    ICA PROCEEDINGS

            The State appealed to the ICA from the De Minimis

Order.    The State argued, inter alia, that the circuit court

abused its discretion in concluding that the critical inquiry

was whether the amount of cocaine recovered from Melendez was

useable or saleable and in concluding that .005 grams of cocaine

was an amount that could not produce a pharmacological or

physiological effect.

            In a Memorandum Opinion filed on June 14, 2019, the

ICA vacated the De Minimis Order and remanded the case to the

circuit court, concluding that the court erred in finding the

cocaine Melendez possessed could not have a pharmacological

effect, and that the erroneous finding was not “harmless error.”7

Specifically, the ICA concluded that the circuit court erred by

discounting the testimony of Dr. Read and relying instead “upon

‘Melendez’s collection of experiences, beliefs, and knowledge as

a cocaine consumer’” to conclude that Melendez would have

consumed the substance in his possession if it were capable of

producing an effect.      “As the movant in de minimis cases,” the


      7
            The ICA’s memorandum opinion can be found at State v. Melendez,
No. CAAP-XX-XXXXXXX, 2019 WL 2482183 (App. June 14, 2019) (mem.).


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ICA stated, “the defendant . . . must present evidence that the

amount possessed was incapable of producing a pharmacological or

physiological effect.”      (Emphasis added.)      Since the record

lacked evidence supporting the circuit court’s finding as to the

effect of the drugs Melendez possessed, the ICA vacated the De

Minimis Order.

                    III.     STANDARD OF REVIEW

                           A. De Minimis Rulings

          A circuit court’s ruling with regard to whether a

defendant’s criminal conduct constitutes a de minimis infraction

pursuant to HRS § 702-236 is reviewed on appeal for abuse of

discretion.    State v. Oughterson, 99 Hawaiʻi 244, 253, 54 P.3d

415, 424 (2002).    “A court abuses its discretion if it clearly

exceeded the bounds of reason or disregarded rules or principles

of law or practice to the substantial detriment of a party

litigant.”    Id. (brackets omitted).

                             IV.   DISCUSSION

  A. Motion to Dismiss Possessory Drug Violation as De Minimis

          HRS § 702-236(1)(b) allows the circuit court to

dismiss a prosecution if, upon consideration of the nature of

the alleged conduct and attendant circumstances, the court finds

that the violation “[d]id not actually cause or threaten the

harm or evil sought to be prevented by the law defining the

offense or did so only to an extent too trivial to warrant the
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condemnation of conviction.”      In order for dismissal to be

granted on de minimis grounds, the defendant must place “the

relevant attendant circumstances before the trial court . . . to

establish why dismissal is warranted in light of those

circumstances.”    State v. Rapozo, 123 Hawaiʻi 329, 331, 235 P.3d

325, 327 (2010) (citing State v. Park, 55 Haw. 610, 616, 525

P.2d 586, 591 (1974)); see also State v. Fukagawa, 100 Hawaiʻi

498, 507, 60 P.3d 899, 908 (2002) (“[D]ismissal of a prosecution

without any indicators from the surrounding circumstances that

demonstrate a de minimis infraction would constitute an abuse of

discretion.”).    With respect to HRS § 712-1243, this court has

stated that the harm sought to be prevented by the statute is

“the use of the [proscribed drug] or its ‘sale or transfer for

ultimate use.’”    State v. Hironaka, 99 Hawai‘i 198, 209, 53 P.3d

806, 817 (2002) (quoting State v. Vance, 61 Haw. 291, 307, 602

P.2d 933, 944 (1979)).

1. The Defendant Does Not Need To Prove that the Possessed Drugs
         Are Incapable of Producing Any Pharmacological or
                       Physiological Effect.

          In this case, the circuit court found that the .005

grams of cocaine that Melendez possessed could not have any

pharmacological or physiological effect based on the

circumstances attendant to Melendez’s violation.           The ICA

concluded this finding was clearly erroneous because it was


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unsupported by the evidence in the record and vacated the De

Minimis Order, stating that “the defendant . . . must present

evidence that the amount possessed was incapable of producing a

pharmacological or physiological effect.”         (Emphasis added.)

Evaluating the relevance of the possessed drug’s pharmacological

effect requires a review of our pertinent precedent.

          In State v. Vance, this court first discussed the de

minimis principle set forth in HRS § 702-236(1)(b) in the

context of an HRS § 712-1243 violation.         61 Haw. at 307, 602

P.2d at 944.    We observed that when the literal application of a

possessory drug offense, such as HRS § 712-1243, would result in

an “unduly harsh conviction for possession of a microscopic

trace of a dangerous drug,” HRS § 702-236 might be applied to

avoid an unjust result.     Id.   We explained that when

          the amount [of the drug] is microscopic or is infinitesimal
          and in fact unusable as a narcotic, the possibility of
          unlawful sale or use does not exist, and proscription of
          possession under these circumstances may be inconsistent
          with the rationale of the statutory scheme of narcotics
          control.

Id. (emphasis added).     That is, when the amount of the drug is

microscopic and “in fact unusable as a narcotic,” then

proscription of possession may be contrary to the statutory

scheme.   Id.   Further, inability to use or sell a minute amount

of a narcotic may be shown by other relevant factors, warranting

dismissal of the charge.


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             Thus, the possession of a microscopic amount in combination
             with other factors indicating an inability to use or sell
             the narcotic, may constitute a de minimis infraction within
             the meaning of HRS § 702–236 and, therefore, warrant
             dismissal of the charge otherwise sustainable under HRS
             § 712–1243.

Id.

             This court again considered the application of the de

minimis statute to a possessory drug offense in State v.

Viernes, 92 Hawaiʻi 130, 988 P.2d 195 (1999).            In Viernes, the

defendant was found to be in possession of .001 grams of a

substance containing methamphetamine.           Id. at 131, 988 P.2d at

196.     The trial court found, based on the expert testimony of

Dr. Read, that .001 grams of methamphetamine has no

pharmacological effect, and therefore that amount was “unusable

for use or sale.”       Id. at 132, 988 P.2d at 197.        Citing Vance,

the trial court concluded that convicting the defendant for the

violation would be unduly harsh and dismissed the charge as a de

minimis violation.       Id. at 132-33, 988 P.2d at 197-98.          On

appeal, the State argued it was erroneous for the trial court to

conclude that the violation was de minimis solely because the

amount of methamphetamine the defendant possessed was unusable.

Id. at 133, 988 P.2d at 198.         The Viernes court rejected this

contention and held that “[i]nasmuch as the quantity of

methamphetamine possessed by Viernes was infinitesimal and

unusable as a narcotic, and was thereby incapable of causing or

threatening the harms sought to be prevented by HRS § 712–1243,”
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the trial court did not err in dismissing the charge.            Id. at

133, 988 P.2d at 198.     The court, extensively quoting from

Vance, held that

          the .001 grams of methamphetamine was infinitesimal and was
          neither useable nor saleable, it could not engender any
          abuse or social harm. As such, Viernes’s possession of the
          .001 grams of methamphetamine did not threaten the harm
          sought to be prevented by HRS § 712–1243.

Id. at 134-35, 988 P.2d at 199-200 (footnote omitted).

Accordingly, the Viernes court concluded that the trial court

did not abuse its discretion in determining that the possession

of .001 grams of methamphetamine was de minimis pursuant to HRS

§ 702–236.   Id. at 135, 988 P.2d at 200.

          The issue of de minimis dismissal for an HRS § 712-

1243 violation was again addressed in State v. Balanza,

93 Hawaiʻi 279, 285, 1 P.3d 281, 287 (2000).         In Balanza, we held

that the trial court did not abuse its discretion in denying a

de minimis motion because the prosecution adduced uncontroverted

evidence that the cocaine residue in a pipe the defendant

possessed “could be scraped out and smoked again.”           93 Hawaiʻi at

285, 1 P.3d at 287.     Based on the evidence in the record, we

concluded that the trial court did not abuse its discretion in

denying the motion to dismiss.       Id.

          In State v. Hironaka, we again affirmed a trial

court’s denial of a defendant’s de minimis motion.           99 Hawaiʻi

198, 200, 53 P.3d 806, 808 (2002).         The defendant was charged

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under HRS § 712-1243 for his possession of .044 grams of residue

containing methamphetamine.      Id.      He adduced no evidence that

the amount of methamphetamine he possessed was “incapable of

producing a pharmacological or physiological effect or was not

saleable.”     Id. at 209, 53 P.3d at 817.       Thus, “there was no

evidence introduced from which the circuit court could have

concluded that [the defendant’s] conduct did not ‘cause or

threaten the harm or evil sought to be prevented by the law,’

i.e., the use of the methamphetamine or its ‘sale or transfer

for ultimate use.’”     Id. (quoting Vance, 61 Haw. at 307, 602

P.2d at 944).     As such, we held that the court did not err in

denying the defendant’s motion to dismiss on the grounds that

his violation was de minimis.       Id.

          The relevance of a possessed drug’s “pharmacological

effect” was clarified in State v. Fukagawa, 100 Hawaiʻi 498, 60

P.3d 899 (2002).     A majority of this court rejected a contention

by the dissent that the significant inquiry in de minimis drug

cases is whether the amount of drugs possessed could have an

“illicit” or “narcotic” effect.        Fukagawa, 100 Hawaiʻi at 506, 60

P.3d at 907.     Instead, the court stated that in considering the

effect of the amount of drugs possessed, “the proper inquiry in

de minimis cases is whether the amount possessed could produce a

pharmacological or physiological effect.”          Id.   This court


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observed that the amount of substance containing methamphetamine

in the defendant’s possession weighed .018 grams, and Dr. Read

had testified that doses of methamphetamine as low as .005 grams

were used to treat ADHD.         Id.   Additionally, we concluded that

the trial court’s determination that the substance recovered was

usable was supported by testimony that it may have constituted

an amount sufficient to be “used” by someone.             Id.   Thus, we

held that the court did not abuse its discretion in denying the

motion to dismiss.       Id. at 507, 60 P.3d at 908.

             This court has thus consistently held over the past

forty years that when the amount of drugs possessed is unusable,

the violation of HRS § 712-1243 does not “cause or threaten the

harm or evil sought to be prevented by the law defining the

offense,” and a de minimis dismissal would be warranted in such

circumstances.       HRS § 702-236; see Vance, 61 Haw. at 307, 602

P.2d at 944; Viernes, 92 Hawaiʻi at 134, 988 P.2d at 199; cf.

Balanza, 93 Hawaiʻi at 285, 1 P.3d at 287; Hironaka, 99 Hawaiʻi

at 209, 53 P.3d at 817; Fukagawa, 100 Hawaiʻi at 506, 60 P.3d at

907.     Although we have declined to read a usable quantity

standard into HRS § 712-1243, it is clear that if the amount

possessed is “so minuscule that it cannot be . . . used in such

a way as to have any discernible effect on the human body, it

follows that the drug cannot lead to abuse, social harm, or


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property and violent crimes,” i.e., the harm sought to be

prevented by HRS § 712-1243.      Viernes, 92 Hawaiʻi at 134, 988

P.2d at 199.   Under such circumstances, dismissal under HRS

§ 702-236 is warranted.     See id.

          Hence, contrary to the conclusion of the ICA, a

defendant’s burden on a de minimis motion for an HRS § 712-1243

violation is not to specifically prove that the drugs possessed

could not have a pharmacological or physiological effect, but to

“place ‘all’ of the relevant attendant circumstances before the

trial court . . . to establish why dismissal is warranted in

light of those circumstances.”        Rapozo, 123 Hawaiʻi at 331, 235

P.3d at 327.   When the defendant proves the amount of drugs

possessed is incapable of producing a pharmacological effect, it

is clear the amount is not usable or saleable.          Viernes, 92

Hawai‘i at 134-35, 988 P.2d at 199-200.        In such cases, in the

absence of other circumstances indicating the violation actually

threatened the harm sought to be prevented by HRS § 712-1243, de

minimis dismissal will be warranted.        Id.   But proving that the

possessed drugs could not have a pharmacological effect is not a

condition precedent for de minimis dismissal of a possessory

drug violation.    Our decisions firmly establish that if the

amount of drugs possessed is not usable or saleable, the

violation does not engender the harms sought to be prevented by


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HRS § 712-1243 absent demonstrable evidence to the contrary.

Id. at 134, 988 P.2d at 199; Balanza, 93 Hawaiʻi at 285, 1 P.3d

at 287; Hironaka, 99 Hawaiʻi at 209, 53 P.3d at 817; Fukagawa,

100 Hawaiʻi at 506, 60 P.3d at 907.       In sum, if the possessed

drugs are neither usable nor saleable, and the attendant

circumstances do not otherwise demonstrate the defendant’s

violation caused the harm HRS § 712-1243 seeks to prevent, de

minimis dismissal is warranted.

     2.      The Circuit Court Did Not Abuse Its Discretion in
                 Dismissing the Charge as De Minimis.

          The parties in this case stipulated that “0.005 grams

of a substance containing cocaine is neither usable nor

saleable.”     Even assuming that the amount of cocaine Melendez

possessed was theoretically capable of producing a

pharmacological or physiological effect, it was well within the

court’s discretion to dismiss the charge against Melendez as de

minimis because, per the parties’ stipulation, the cocaine

Melendez possessed was not a usable or saleable amount.            Since

it was neither usable nor saleable, Melendez’s possession of the

cocaine did not “cause or threaten the harm or evil sought to be

prevented” by HRS § 712-1243 and violated the statute “only to

an extent too trivial to warrant the condemnation of

conviction.”     HRS § 702-236(1)(b); see Viernes, 92 Hawai‘i at

133, 988 P.2d at 198 (“Inasmuch as the quantity of

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methamphetamine possessed by Viernes was infinitesimal and

unusable as a narcotic, [it] was thereby incapable of causing or

threatening the harms sought to be prevented by HRS § 712-

1243[.]”).

          Additionally, even if it was erroneous for the circuit

court, based on the evidentiary record, to conclude that

Melendez had proved that the .005 grams of cocaine that he

possessed was incapable of producing a pharmacological or

physiological effect, “it is well-settled that ‘[a]n appellate

court may affirm a judgment of the lower court on any ground in

the record that supports affirmance.’”         Fukagawa, 100 Hawaiʻi at

506-07, 60 P.3d at 907-08 (alteration in original) (quoting

State v. Dow, 96 Hawaiʻi 320, 326, 30 P.3d 926, 932 (2001)).

Thus, the ICA should have considered other grounds in the record

supporting affirmance of the De Minimis Order, particularly the

stipulated fact that the cocaine Melendez possessed was unusable

and unsaleable.    See State v. Woodhall, 129 Hawaiʻi 397, 405, 301

P.3d 607, 615 (2013) (noting that stipulations as to facts are

conclusive and binding).      Under our precedents, this stipulation

warrants dismissal of the charge as de minimis unless the other

attendant circumstances demonstrate that the violation did in

fact cause or threaten the harm sought to be prevented by HRS

§ 712-1243.   Viernes, 92 Hawai‘i at 133, 988 P.2d at 198; cf.


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Balanza, 93 Hawaiʻi at 285, 1 P.3d at 287; Hironaka, 99 Hawaiʻi

at 209, 53 P.3d at 817.

           Further, none of the attendant circumstances in this

case refute the conclusion that Melendez’s possession of an

unusable and unsaleable amount of cocaine did not threaten or

cause the harm sought to be prevented by HRS § 712-1243.             We

note that the circuit court found that Melendez was not in

possession of any items typically associated with drug use at

the time of his violation and was not under the influence of any

drugs.    There is also no indication Melendez was engaged in any

other criminal conduct.       These circumstances additionally do not

militate against a finding that the violation was de minimis.

Fukagawa, 100 Hawai‘i at 507, 60 P.3d at 908.          Thus, inasmuch as

the record supports the circuit court’s determination that

Melendez’s violation was de minimis as the possessed drug was

neither usable nor saleable, the court did not abuse its

discretion in dismissing the charge.8         Id. at 506-07, 60 P.3d at

907-08.




     8
            Given our disposition in this case, it is unnecessary to review
the ICA’s determination that the circuit court erred in finding that the
amount of cocaine Melendez possessed could not have had a pharmacological or
physiological effect.



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                            V.   CONCLUSION

          Based on the foregoing, the ICA’s judgment on appeal

is reversed.


Jon N. Ikenaga                              /s/ Mark E. Recktenwald
for petitioner
                                            /s/ Paula A. Nakayama
Stephen K. Tsushima
for respondent                              /s/ Sabrina S. McKenna

                                            /s/ Richard W. Pollack

                                            /s/ Michael D. Wilson




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