NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
NO. 29113
IN
THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI‘I
On appeal, Rivera contends that: 1) the circuit court erred in failing to properly instruct the jury on the procuring agent defense; and 2) there was insufficient evidence to sustain his conviction. (3) We affirm.
I.
On September 7, 2006, while working in an undercover capacity at Hans L'Orange Park in Waipahu, Honolulu Police Department Officer Michael Usis (Officer Usis) approached a man and requested drugs by asking, "You get?" The man, who identified himself as "Jolo," said he did not have any drugs but indicated that he knew where drugs could be obtained. Jolo and Officer Usis walked a short distance to a residence located on Waipahu Street. Officer Usis observed Rivera standing outside the residence.
Officer Usis testified that he told Jolo he was looking for a "twenty," then handed Jolo a $20 bill. Jolo walked over to Rivera, the two engaged in a brief conversation, and Jolo handed Rivera the $20 bill. Rivera went into the residence then reappeared five minutes later and handed Jolo a packet containing methamphetamine. Jolo then walked over and handed the packet to Officer Usis.
Rivera testified in his own defense at trial. Rivera's testimony regarding the sequence of events was basically the same as that of Officer Usis. Rivera stated that he had "seen [Jolo] around," but did not know and had never seen the man who accompanied Jolo. Jolo asked if Rivera could get a "20-dollar paper." Rivera agreed, took $20 from Jolo, then went into the residence and knocked on the bedroom door of Ernesto. Rivera gave Ernesto the $20 and Ernesto gave Rivera a packet containing methamphetamine. Rivera exited the house and handed the packet to Jolo, who in turn handed the packet to the other man.
Rivera testified that he had known Ernesto for about eight years, that they were friends, and that he knew Ernesto sold illegal narcotics. Rivera explained that he obtained the methamphetamine as a favor for both Jolo and the other person, who Rivera thought was Jolo's "friend." Rivera asserted that he did not receive anything for assisting in the transaction.
A.
At trial, the circuit court instructed the jury on the procuring agent defense as follows:
A buyer or an agent of a buyer of an illicit drug cannot be found guilty of distributing the drug because the act of "buying" falls outside the definition of "to distribute." Accordingly, it is a defense to both Methamphetamine Trafficking in the Second Degree and Imitation Controlled Substance that the defendant acted exclusively as a procuring agent for the buyer and not as, or on behalf of, the seller.
(Emphasis added). (4)
On appeal, Rivera contends that the use of the term "exclusively" rendered this instruction defective because the use of that term could have misled the jury into believing that the defense "was limited to one agent" and applicable only to Jolo, and not to Rivera, "based on [the defense's] exclusive nature." In other words, the instruction could have misled the jury into believing that the procuring agent defense only applied if Rivera was acting "solely at Officer Usis's request, rather than at the behest of Officer Usis and Jolo." We disagree.
The circuit court's instruction was an accurate formulation of the procuring agent defense as articulated by the Hawai-i Supreme Court. The supreme court has described the defense as follows: "[U]nder the procuring agent defense, one who acts merely as a procuring agent for the buyer is a principal in the purchase, not the sale, and, therefore, can be held liable only to the extent that the purchaser is held liable." State v. Davalos, 113 Hawai‘i 385, 387, 153 P.3d 456, 458 (2007) (internal quotation marks omitted) (quoting State v. Balanza, 93 Hawai‘i 279, 285, 1 P.3d 281, 287 (2000)). The procuring agent defense is negated when the defendant acts, in whole or in part, on behalf of the seller. See Balanza, 93 Hawai‘i at 285, 287, 1 P.3d at 287, 289. The circuit court's instruction made clear that the prosecution was required to prove that "the defendant acted . . . as, or on or behalf of, the seller." The jury was therefore at least required to find that Rivera acted in part on behalf of the seller, thereby negating the procuring agent defense that he acted "merely as a procuring agent for the buyer," in order to convict Rivera. Accordingly, we conclude that the circuit court's instruction was not "prejudicially insufficient, erroneous, inconsistent, or misleading." State v. Iuli, 101 Hawai‘i 196, 203, 65 P.3d 143, 150 (2003) (citation and internal quotation marks omitted).
B.
Rivera argues that the prosecution failed to produce sufficient evidence to negate the procuring agent defense. We disagree.
When viewed in the light most favorable to the prosecution, State v. Ugalino, 107 Hawai‘i 144, 158, 111 P.3d 39, 53 (App. 2005), we conclude that there was substantial evidence to negate the procuring agent defense. The evidence showed that Rivera accepted the purchase money and returned with the methamphetamine. If the jury disbelieved Rivera's testimony, that evidence was sufficient to overcome the procuring agent defense.
In addition, according to Rivera, he was sitting in front of Ernesto's house. Rivera admitted that he had no previous relationship with Officer Usis. In contrast, Rivera was closely aligned with Ernesto, who Rivera stated was his friend and a man that Rivera knew sold illegal narcotics. Rather than directing Jolo or Officer Usis to Ernesto, Rivera participated in the transaction by physically transferring the purchase money to Ernesto and the methamphetamine to Jolo. Rivera did not receive any form of compensation from Officer Usis or Jolo. There was sufficient evidence from which a reasonable jury could have found that Rivera was, at minimum, acting on behalf of the seller Ernesto.
III.
We affirm the January 3, 2008, Judgment entered by the circuit court.
DATED: Honolulu, Hawai‘i, April 28, 2009.
On the briefs:
1. The Honorable Richard K. Perkins presided.
2. HRS § 712-1240.8 provides in relevant part:
HRS § 712-1240 (1993) provides that the term "'[t]o distribute' means to sell, transfer, prescribe, give, or deliver to another, or to leave, barter, or exchange with another, or to offer or agree to do the same."
3. Due to a miscalculation by trial counsel, Rivera's notice of appeal was not timely filed. However, the appellate courts have overlooked such error in similar circumstances, and thus we will proceed to address the merits of Rivera's appeal. See State v. Irvine, 88 Hawai‘i 404, 407, 967 P.2d 236, 239 (1998); State v. Knight, 80 Hawai‘i 318, 323, 909 P.2d 1133, 1138 (1996).
4.
The quoted material is from the written instructions provided to the
jury. The transcript of the circuit court's oral
instructions contains minor differences in punctuation.