State v. Kolo ( 2023 )

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
21-APR-2023
07:54 AM
Dkt. 54 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
STATE OF HAWAI#I, Plaintiff-Appellee,
v.
MICKIE KOLO, Defendant-Appellant
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CRIMINAL NO. 1CPC-XX-XXXXXXX)
SUMMARY DISPOSITION ORDER
(By: Ginoza, Chief Judge, Hiraoka and Wadsworth, JJ.)
Defendant-Appellant Mickie Kolo appeals from the
Judgment of Conviction and Sentence entered by the Circuit Court
of the First Circuit on March 1, 2022. For the reasons explained
below, we affirm.
Kolo was charged by felony information with Promoting a
Dangerous Drug in the Third Degree in violation of Hawaii Revised
Statutes § 712-1243. She pleaded not guilty. Jury trial began
on November 19, 2021.1 The jury found her guilty as charged on
November 26, 2021. The Judgment was entered on March 1, 2022.2
This appeal followed.
1
The Honorable James S. Kawashima presided over the trial.
2
The Honorable Kevin T. Morikone entered the Judgment.
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Kolo contends that the evidence was insufficient to
support her conviction. When reviewing the sufficiency of
evidence on appeal, we apply the following standard of review:
[E]vidence adduced in the trial court must be
considered in the strongest light for the prosecution
when the appellate court passes on the legal
sufficiency of such evidence to support a conviction;
the same standard applies whether the case was before
a judge or jury. The test on appeal is not whether
guilt is established beyond a reasonable doubt, but
whether there was substantial evidence to support the
conclusion of the trier of fact.
State v. Kalaola, 124 Hawai#i 43, 49, 237 P.3d 1109, 1115 (2010)
(citation omitted). "'Substantial evidence' as to every material
element of the offense charged is credible evidence which is of
sufficient quality and probative value to enable a person of
reasonable caution to support a conclusion." Id. (citation
omitted).
Kolo argues that "the State did not account for certain
deficiencies in the chain of custody." Honolulu Police
Department (HPD) officer Kaleka Akana testified that he was on
duty on September 2, 2021. He saw Kolo rolling what appeared to
be a cigarette. She had a piece of foil. She put something into
the foil. She used a torch lighter to ignite the foil. She
placed the rolled tube in her mouth and inhaled.
Officer Akana approached Kolo, with HPD officers Tyler
Santiago and Brandon Collins. He told Kolo they were police
officers. Officer Santiago said a little speck fell off the foil
Kolo had. Two photographs of a black-colored object were
admitted into evidence.
Officer Santiago testified that Kolo was sitting and
there was a piece of foil next to her thigh. Officer Santiago
picked up the foil, and a "brown nugget rolled off." He gave the
brown nugget to Officer Collins and instructed him to submit it
into evidence. He then arrested Kolo.
Officer Collins testified that Officer Santiago handed
him items to place into evidence, including a "brownish nugget
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NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
resembling heroin." He identified State's Exhibit 1 as the
brownish nugget he received from Officer Santiago. He placed it
in an envelope and sealed it. He identified the evidence log he
prepared for the brownish nugget.
HPD evidence custodian Ida Quinn described HPD's
procedure for handling physical evidence. She identified the HPD
evidence log for Exhibit 1. She had received Exhibit 1 from
Officer Collins. It was in a sealed envelope. An HPD
criminalist named Michelle Shinsato requested Exhibit 1. Quinn
gave Exhibit 1, still in the sealed envelope she received from
Officer Collins, to Shinsato. Quinn didn't tamper, substitute,
or alter Exhibit 1 while it was in her custody.
Shinsato testified that her job is to analyze evidence
for the presence of controlled substances, including heroin. She
described the gas chromatograph mass spectrometer she uses to
conduct the analysis. She was asked to analyze Exhibit 1. She
received the evidence from Quinn and signed the chain of custody.
The evidence seals were intact and there was no sign of
tampering. She identified Exhibit 1, which was admitted into
evidence. She testified that she tested Exhibit 1, and described
the tests she performed. The tests indicated that Exhibit 1
contained heroin.
In showing chain of custody, all possibilities of
tampering with an exhibit need not be negated. Chain of
custody is sufficiently established where it is reasonably
certain that no tampering took place, with any doubt going
to the weight of the evidence.
State v. DeSilva, 64 Haw. 40, 41, 636 P.2d 728, 730 (1981)
(citations omitted).
Kolo points to Exhibit 13, a picture of the seat of her
motorized scooter showing a rolled up dollar bill, an item that
looked like a black colored rock, and a hand in a blue glove,
among other things. Although Officer Akana testified the hand in
the blue glove was that of one of the officers on the scene, Kolo
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NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
asserts that because the gloved hand was inches from the dark
colored nugget, the State failed to show there was no tampering
of the item. Kolo also asserts that the State did not
sufficiently account for the time between the encounter with
Kolo, when the dark colored nugget was placed in a sealed
envelope, and when the sealed envelope was delivered to Quinn
hours later.
In this case, we conclude there was substantial
evidence to support the jury's determination that the substance
recovered from Kolo was the same substance tested by Shinsato and
determined to contain heroin. All of the State's witnesses were
cross-examined by Kolo, and no evidence of a gap in the chain of
custody or tampering was adduced. The State was not required to
negate all possibilities of tampering. Chain of custody for the
substance was sufficiently established to support the jury's
verdict.
For the foregoing reasons, the Judgment of Conviction
and Sentence entered on March 1, 2022, is affirmed.
DATED: Honolulu, Hawai#i, April 21, 2023.
On the briefs:
/s/ Lisa M. Ginoza
William K. Li, Chief Judge
for Defendant-Appellant.
/s/ Keith K. Hiraoka
Donn Fudo, Associate Judge
Deputy Prosecuting Attorney,
City and County of Honolulu, /s/ Clyde J. Wadsworth
for Plaintiff-Appellee. Associate Judge
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