STATE of Hawai'i, Plaintiff-Appellee, v. Jobert Lyle MALDONADO, Defendant-Appellant, and Kevin Wayne Anthony and Wendy Ualani, Tomiko Okimoto, Defendants, 108 Haw. 446

Opinion of the Court by FOLEY, J. Defendant-Appellant Jobert Lyle Maldonado (Maldonado) appeals from the Judgment filed on January 24, 2003 in the Circuit Court of the First Circuit (circuit court).

A jury found Maldonado guilty of Count I, Promoting a Dangerous Drug in the First Degree in violation of Hawaii Revised Statutes (HRS) § 712-1241(l)(d) (Supp.2001); Counts II and III, Promoting a Dangerous Drug in the Third Degree in violation of HRS § 712-1243 (1993 & Supp.2001); Count IV, Unlawful Use of Drug Paraphernalia in violation of HRS § 329-43.5(a) (1993); and Count V, Promoting a Dangerous Drug in the Second Degree in violation of HRS § 712—1242(l)(b)(i) (1993 & Supp. 2001).

On appeal, Maldonado contends the circuit court erred by (1) denying his Motion to Suppress Evidence, filed August 7, 2002; (2) failing to declare a mistrial because the State violated the court’s in limine order by using improper pronouns, the Prosecutor made improper remarks in his rebuttal argument, and Maldonado was denied his right to confront a witness; (3) denying Maldonado’s motions for judgment of acquittal; (4) failing to dismiss Count II as a de minimis infraction; and (5) failing to instruct the jury regarding the fingerprint evidence.

Because we agree with Maldonado’s first contention that the circuit court erred in denying his Motion to Suppress Evidence, we vacate and remand. I. On June 25, 2002, the State charged Maldonado with five counts relating to contraband. Maldonado filed his Motion to Suppress Evidence (Motion to Suppress) on August 7, 2002, asking that “all evidence obtained as a result of an illegal seizure and search of the Defendant’s residence” be suppressed. Hearings on the motion took place on August 22, September 5, and September 16, 2002.

At the hearings, Deputy Sheriff Cayetano (Cayetano) testified that on June 10, 2002 he was contacted by the Honolulu Police Department (HPD) regarding a tip HPD had received on the whereabouts of one of Hawaii’s most wanted fugitives, Robert Maldonado (Robert), Maldonado’s brother. The tipster provided information that Robert was at Maldonado’s home and that firearms and drugs might be present. Police officers, including Officer Yosemori (Yosemori) and Officer Pagan (Pagan), went to Maldonado’s residence to assist Cayetano in executing the arrest warrant for Robert.

Based on Robert’s status as “most-wanted,” the officers were armed and had on bullet-proof vests. The officers approached the house, and Cay-etano could see that the lights were on, the exterior screen door was closed, and the interior wooden door was open. Cayetano had his gun unholstered and to his side.

Cayetano testified that he simultaneously knocked on and opened the screen door and “announced, ‘Sheriffs Office, Police.’ ” It was only after Cayetano knocked and opened the screen door that he asked if he could enter and stated that he had a “retake warrant.” Cayetano testified when he opened the screen door, he looked into the house and it was possible that a portion of his upper body crossed the threshold of the house, but he did not enter the house. After Cayetano opened the door, he saw Maldonado, Wendy Okimoto (Okimoto), and Kevin Wayne Anthony (Anthony) in a back room.

The three individuals in the back room looked in the direction of the officers. Cayetano testified that he said “Sheriffs Office, police; is Robert here?” and Maldonado said “No.” Cayetano testified that he asked, “Do you mind us coming in? We’re looking for Robert,” and Maldonado said, “Yeah, yeah, yeah.” The officers then entered the house. Cayetano asked Maldonado if he was the owner of the place, and Maldonado said yes.

Cayetano testified that he instructed Maldonado, Okimoto, and Anthony to exit the house for safety reasons and wait outside with other police officers; Maldonado, Okimoto, and Anthony left the house.

Yosemori testified that he knocked on the screen door, saw the screen door was unlocked, and then opened the screen door while announcing “Police and sheriffs.” Yo-semori testified that he opened the screen door because he could see people in the house through the screen door, but did not “have a good picture” of their movements, “like if anyone might have been pulling out a weapon or something.” Yosemori stated that the screen door opened outward and he had his back against the door holding it open and had one foot on the platform in front of the door and one foot on the doorsill.

Yosemori had his weapon out, but he was holding it down toward the ground. Yosemori testified that Cayetano told the people to come out of the room, and Yosemori asked if Robert was there. Maldonado said no. Yosemori asked who lived there, and Maldonado said he did. Yosemori asked Maldonado if he was Robert’s brother, and Maldonado said yes. Yo-semori testified that Cayetano asked if they could go inside and look for Robert, and Maldonado said “yeah.” Yosemori testified that he entered the house first and went into the closest room, but found no one in the room.

He then went to the back room from which Maldonado, Okimoto, and Anthony had exited. Yosemori noticed that “right out in the open in the middle of the floor” there were three glass pipes with residue inside. Based on Yosemo-ri’s experience and training, he believed the pipes were used to smoke methamphetamine. Yosemori also found a glass dish with some crystal substance inside, a can of acetone, and a box of baking soda. Following procedure, Yosemori notified the narcotics division clandestine lab team. Pagan testified that six or seven officers approached the house.

The officers secured the perimeter of the house, and Pagan, Caye-tano, and Yosemori went to the front door. As the officers approached the house, Pagan was holding a shotgun towards the house. While he was standing behind Cayetano and Yosemori at the front door, he held the shotgun pointed downward. Pagan testified that when Cayetano asked Maldonado if Robert was there, Maldonado answered no. Cayeta-no then asked Maldonado if they could “make entry into the residence to make sure that [Robert] wasn’t there.” Yosemori asked the same question.

Pagan testified that he heard Maldonado answer yes to the officers’ questions. After the officers entered the house, Pagan raised his shotgun, but he did not point it at Maldonado, Okimoto, and Anthony.

Pagan testified that firearms were found by the police “on the side of the house.” Maldonado testified that on June 10, 2002, he was with Okimoto and Anthony in a room in his house when he heard “one loud noise that said oh, everybody, get out of the room.” He stated that by the time he came out from the back room, the police were “right inside my doorway already; in fact, they were pretty much inside my house.” The police had their guns out and one officer had a rifle pointing in the general direction of Maldonado, Okimoto, and Anthony.

Maldonado claimed he felt threatened and scared because of the presence of the police and their firearms, even though no one made any verbal threats. Maldonado testified that when the police asked whether they could look for Robert, Maldonado said “I guess” or “yeah,” agreeing with the request. The circuit court denied Maldonado’s Motion to Suppress and issued its “Findings of Fact, Conclusions of Law and Order Denying Defendant’s Motion to Suppress Evidence” on November 12, 2002. The circuit court’s Findings of Fact and Conclusions of Law were as follows: FINDINGS OF FACT 1.

On June 10, 2002, the Department of Public Safety and the Honolulu Police Department acted on a tip that a parole violator, Robert Maldonado (defendant JOBERT MALDONADO’S brother) was currently at an apartment at 1704A Apaki Street. 2. A Sheriffs deputy and Honolulu Police Department officers were in possession of an arrest warrant authorizing them to arrest Robert Maldonado; and when the officers went to that address they confronted defendant JOBERT MALDONADO. 3.

According to the information given to the officers, firearms were purported to be present at the premises where Robert Maldonado had been reported, which was defendant JOBERT MALDONADO’S residence. 4. When they approached the premises where Robert Maldonado was reported to be, one or more officers knocked on the door, announced their presence and office (both the police and the sheriff) and demanded entry; then one or more officers partially entered the front door of defendant MALDONADO’S residence, by opening - a screen door outward and crossing the threshold with part of one officer’s body. 5.

The wooden interior door had been open before the officers arrived at the premises, and the officers could see through the screen door to the interior of the residence before opening the screen door. 6. The officers asked defendant JOBERT MALDONADO if Robert Maldonado was present, but when defendant MALDONADO told them Robert was not there, the officers asked to cheek the premises anyway. 7. Defendant MALDONADO gave the officers permission to check the premises at which time the officers entered, and once inside they saw what appeared to be a “clandestine lab” used for the production of methamphetamine. 8.

Also observed within the residence were the two other co-defendants, KEVIN WAYNE ANTHONY and WENDY UALANI TOMIKO OKIMO-TO, who had both exited the room where the purported clandestine lab was found. CONCLUSIONS OF LAW 1. The officers who approached defendant MALDONADO were in compliance with § 804-11[sic] HRS requirements to knock and announce their office, and demand entry before forcibly entering the premises to execute a warrant of arrest. See e.g. State v. Harada, 98 Hawai'i 18, 41 P.3d 174 (2002). 2.

In addition to satisfying the “Knock and Announce” rule, the officers in this case also obtained permission from de~ fendant JOBERT MALDONADO to enter the premises to search for Robert Maldonado. 3. Even if the officers had not met the requirements of the “Knock and Announce” rule, the officer’s [sic] knowledge of the possible presence of firearms on the premises constituted an exigent circumstance justifying entry into the residence. 4.

Concerning discovery of equipment suspected of being a so-called “clandestine lab” and other contraband observed by the officers, once the officers were properly in the residence, observation of these materials was proper and allowable as the evidence was in “open view.” State v. Stachler, 58 Haw. 412, 570 P.2d 1323 (1977). II. A. Motion to Suppress Evidence Appellate review of factual determinations made by the trial court deciding pretrial motions in a criminal case is governed by the clearly erroneous standard.

A finding of fact is clearly erroneous when (1) the record lacks substantial evidence to support the finding, or (2) despite substantial evidence in support of the finding, the appellate court is left with a definite and firm conviction that a mistake has been made. The circuit court’s conclusions of law are reviewed under the right/wrong standard. Furthermore ... the proponent of a motion to suppress has the burden of establishing not only that the evidence sought to be excluded was unlawfully secured, but also, that his own Fourth Amendment rights were violated by the search and seizure sought to be challenged.

The proponent of the motion to suppress must satisfy this burden of proof by a preponderance of the evidence. State v. Balberdi 90 Hawai'i 16, 20-21, 975 P.2d 773, 777-78 (App.1999) (quoting State v. Anderson, 84 Hawai'i 462, 467, 935 P.2d 1007, 1012 (1997)). Consequently, we “review the circuit court’s ruling on a motion to suppress de novo to determine whether the ruling was ‘right’ or ‘wrong’ ” as a matter of law. State v. Kauhi, 86 Hawai'i 195, 197, 948 P.2d 1036, 1038 (1997).

When a defendant’s motion to suppress evidence is denied prior to trial, the defendant need not object at trial to the introduction of the evidence to preserve his or her right to appeal the pretrial denial of his or her motion to suppress and the introduction of the evidence at trial. State v. Kong, 77 Hawai'i 264, 266, 883 P.2d 686, 688 (App.1994) (citation omitted).

Further, when the defendant’s pretrial motion to suppress is denied and the evidence is subsequently introduced at trial, the defendant’s appeal of the denial of the motion to suppress is actually an appeal of the introduction of the evidence at trial. Consequently, when deciding an appeal of the pretrial denial of the defendant’s motion to suppress, the appellate court considers both the record of the hearing on the motion to suppress and the record of the trial. Id. (citations omitted). B.

Motion for a Judgment of Acquittal The standard to be applied by the trial court in ruling upon a motion for a judgment of acquittal is whether, upon the evidence viewed in the light most favorable to the prosecution and in full recognition of the province of the trier of fact, a reasonable mind might fairly conclude guilt beyond a reasonable doubt. An appellate court employs the same standard of review. State v. Keawe, 107 Hawai'i 1, 4, 108 P.3d 304, 307 (2005) (brackets omitted) (quoting State v. Pone, 78 Hawai'i 262, 265, 892 P.2d 455, 458 (1995)). III. A.

Motion to Suppress The circuit court erred when it concluded that the “officers who approached defendant MALDONADO were in compliance with § 804Hl[sic] HRS requirements to knock and announce their office, and demand entry before forcibly entering the premises to execute a warrant of arrest. See e.g. State v. Harada, 98 Hawai'i 18, 41 P.3d 174 (2002).” Hawaii Revised Statutes § 803-11 (1993) provides: § 803-11 Entering house to arrest.

Whenever it is necessary to enter a house to arrest an offender, and entrance is refused, the officer or person making the arrest may force an entrance by breaking doors or other barriers.

But before breaking any door, the officer or person shall first demand entrance in a loud voice, and state that the officer or person is the bearer of a warrant of arrest; or if it is in a case in which arrest is lawful without warrant, the officer or person shall substantially state that information in an audible voice. (Emphasis added.) The circuit court found that “one or more officers knocked on the door, announced their presence and office (both the police and the sheriff) and demanded entry; then one or more officers partially entered the front door of defendant MALDONADO’S residence, by opening a screen door outward and crossing the threshold with part of one officer’s body.” There is no question there was a “breaking” of the door under HRS § 803-11.

As stated in State v. Harada, 98 Hawai'i 18, 41 P.3d 174 (2002): Athough a breaking “connotes some use of force,” that force may be no more than that required to turn a doorknob. See [State v. Dixon, 83 Hawai'i 13, 18, 924 P.2d 181, 186 (1996) ] (stating that “[a]n unannounced intrusion into a dwelling ... is no less an unannounced intrusion whether officers break down a door, force open a chain lock on a partially open door, open a locked door by use of a passkey, or ... open a closed but unlocked door.”) Id. at 22, 41 P.3d at 178 (brackets in original and ellipses omitted).

There was no finding of fact by the circuit court nor any evidence that any officer stated that the officer was “the bearer of a warrant of arrest” “before breaking any door” as required by HRS § 803-11. This requirement should not be treated lightly as the Hawaii Supreme Court stated in State v. Dixon, 83 Hawai'i 13, 924 P.2d 181 (1996): “The requirement of prior notice of authority and purpose before forcing entry into a home is deeply rooted in our heritage and should not be given a grudging application.” Id. at 17, 924 P.2d at 185 (brackets omitted) (quoting Miller v.

United States, 357 U.S. 301, 313, 78 S.Ct. 1190, 1198, 2 L.Ed.2d 1332 (1958)). Cayetano testified that he opened the screen door while he was knocking on the door. It was only after Cayetano knocked and opened the screen door did he ask if he could enter and stated that he had a “retake warrant.” Yosemori testified he knocked on the door, opened the door, and then announced his presence.

Not only did the officers fail to state they were bearers of an arrest warrant before “breaking” the screen door, they failed to wait a “reasonable time” after demanding entrance before “breaking” the door and crossing the threshold. State v. Garcia, 77 Hawai'i 461, 466-67, 887 P.2d 671, 676-77 (App.1995) (ten-second delay between announcement and forced entry was insufficient); State v. Diaz, 100 Hawai'i 210, 221, 58 P.3d 1257, 1268 (2002) (fifteen-second delay after police knocked and announced their presence and authority and before police entered was sufficient).

The officers did not satisfy the “knock and announce” rule nor did they comply with the requirements of HRS § 803-11. The circuit court’s conclusions of law to the contrary were erroneous: The circuit court’s second conclusion of law that “the officers in this case also obtained permission” from Maldonado “to enter the premises” is also in error. By “breaking” the screen door and crossing the threshold, the officers had already entered the premises before asking permission of Maldonado. Maldonado’s response of “Yeah, yeah, yeah” to Cayetano’s inquiry, “Do you mind us coming in?

We’re looking for Robert” (while Officers Cayetano, Yosemori, and Pagan stood with their weapons drawn in Maldonado’s doorway) was, to the extent it can be construed as permission to enter and search, “the product of duress or coercion, express or implied” as opposed to consent voluntarily given. State v. Trainor, 83 Hawai'i 250, 261, 925 P.2d 818, 829 (1996).

The “number of officers present, the degree to which they emphasize their authority, and the display of weapons” were coercive factors comprising a “totality of the circumstances” indicating there was no voluntary consent given by Maldonado to enter and search his premises. State v. Patterson, 58 Haw. 462, 471, 571 P.2d 745, 751 (1977). These factors were not addressed in the circuit court’s conclusion that Maldonado granted permission to the officers to enter and search his premises.

Furthermore, any consent given by Maldonado was induced by the officers’ prior illegal breaking and entering, in violation of HRS § 803-11, and was therefore invalid. State v. Pau'u 72 Haw. 505, 509-10, 824 P.2d 833, 835-36 (1992). The circuit court’s third conclusion of law that “the officer’s [sic] knowledge of the possible presence of firearms on the premises constituted an exigent circumstance justifying entry into the residence” is also in error. “[S]ufficient time existed to obtain a search warrant once the house had been secured....

Moreover, the record yields no indication that the ... decision to enter the house ... was prompted by any activity in the house[.]” State v. Vinuya, 96 Hawai'i 472, 489-90, 32 P.3d 116, 133-34 (App.2001). The possible presence of firearms on the premises 'did not require an immediate police response “to prevent imminent danger to life or serious damage to property, or to forestall the likely escape of a suspect or the threatened removal or destruction of evidence.” State v. Lloyd, 61 Haw. 505, 512, 606 P.2d 913, 918 (1980). Maldonado’s house had been secured by police officers, barring any escape by the suspect.

There was no evidence that anyone or anything in the house was in imminent danger. The police response was not intended to prevent the removal or destruction of evidence (drugs or drug paraphernalia), but to arrest a suspect who was, in fact, not in the house of his brother, Maldonado. The circuit court’s fourth and final conclusion of law that the evidence seized was in “open view” was based on the erroneous conclusion that “the officers were properly in the residence” and therefore is in error.

Because the officers failed to follow the mandate of HRS § 803-11 and illegally entered Maldonado’s home, the items seized as result of the illegal entry should have been suppressed. Garcia, 77 Hawai'i at 466, 887 P.2d at 676. B.

Sufficiency of the Evidence/Judgment of Acquittal Maldonado contends the circuit court erred in denying his motions for judgment of acquittal because there was insufficient evidence to support any of the convictions. [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. Richie, 88 Hawai'i 19, 33, 960 P.2d 1227, 1241 (1998) (quoting State v. Quitog, 85 Hawai'i 128, 145, 938 P.2d 559, 576 (1997)). “ ‘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.” Richie, 88 Hawai'i at 33, 960 P.2d at 1241 (internal quotation marks and citation omitted).

Maldonado points to State v. Moniz, 92 Hawai'i 472, 992 P.2d 741 (App.1999), where the ICA held that there was “no evidence to show a sufficient nexus between [defendant] and the scale to permit an inference that [defendant] had the intent to exercise dominion and control over the scale.” Id. at 478, 992 P.2d at 747. However, the ICA also held that the defendant’s knowledge of the presence of drugs and the defendant’s ownership or right to possession of the place where the drugs were found, alone, are insufficient to support a finding of the exercise of dominion and control.

Other incriminating circumstances must be present to buttress the inference of knowing possession and provide the necessary link between a defendant and illegal drugs. Id. at 476-77, 992 P.2d at 745-46. Maldonado denied knowledge of the drugs and paraphernalia. However, the contraband was found in open view in the back corner room, from which the officers witnessed Maldonado exit.

Maldonado lived at the residence and had control of the house, he was witnessed exiting from the room in which drugs and contraband were found, a pipe was found in the back room with the initials “JM” on it, and methamphetamine was found in Maldonado’s pants pocket. Therefore, considering the evidence in the light most favorable to the prosecution, substantial evidence existed to support all of the convictions, and the circuit court did not err in denying Maldonado’s motions for judgment of acquittal. Because we vacate and remand, it is unnecessary to address Maldonado’s other points on appeal. IV.

Because we conclude the circuit court erred in denying Maldonado’s Motion to Suppress Evidence filed August 7, 2002, we vacate the January 24, 2003 Judgment of the Circuit Court of the First Circuit and remand this case for further proceedings consistent with this opinion. . The Honorable Victoria S. Marks presided. . Hawaii Revised Statutes (HRS) § 712-1241 (Supp.2001) provides in relevant part: § 712-1241 Promoting a dangerous drug in the first degree.

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

d) Manufactures a dangerous drug in any amount[.]

(2) Promoting a dangerous drug in the first degree is a class A felony.

(3) Notwithstanding any law to the contrary, if the commission of the offense of promoting a dangerous drug in the first degree under this

section involved the possession, distribution, or manufacture of methamphetamine, or any of its salts, isomers, and salts of isomers, the person convicted shall be sentenced to an indeterminate term of imprisonment of twenty years with a mandatory minimum term of imprisonment, the length of which shall not be less than one year and not greater than ten years, at the discretion of the sentencing court for a conviction under subsection (l)(a), (l)(b), or (l)(

c) and not less than ten years for a conviction under subsection (l)(d). The person convicted shall not be eligible for parole during the mandatoiy term of imprisonment. . HRS § 712-1243 (1993 & Supp.2001) provides: § 712-1243 Promoting a dangerous drug in the third degree.

(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.

(3) Notwithstanding any law to the contraiy, if the commission of the offense of promoting a dangerous drug in the third degree under this

section involved the possession or distribution of methamphetamine, the person convicted shall be sentenced to an indeterminate term of imprisonment of five years with a mandatoiy minimum term of imprisonment, the length of which shall be not less than thirty days and not greater than two-and-a-half years, at the discretion of the sentencing court. The person convicted shall not be eligible for parole during the mandatoiy period of imprisonment. . HRS § 329-43.5(a) (1993) provides as follows: § 329-43.5 Prohibited acts related to drug paraphernalia, (

a) It is unlawful for any person to use, or to possess with intent to use, drug paraphernalia to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain, conceal, inject, ingest, inhale, or otherwise introduce into the human body a controlled substance in violation of this chapter. Any person who violates this

section is guilty of a class C felony and upon conviction may be imprisoned pursuant to

section 706-660 and, if appropriate as provided in

section 706-641, fined pursuant to

section 706-640. . HRS § 712-1242(l)(b)(i) (1993 & Supp.2001) provides in relevant part: § 712-1242 Promoting a dangerous drug in the second degree.

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

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 isomersf]

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

(3) Notwithstanding any law to the contrary, if the commission of the offense of promoting a dangerous drug in the second degree under this

section involved the possession or distribution of methamphetamine, or any of its salts, isomers, and salts of isomers, the person convicted shall be sentenced to an indeterminate term of imprisonment of ten years with a mandatory minimum term of imprisonment, the length of which shall be not less than six months and not greater than five years, at the discretion of the sentencing court. The person convicted shall not be eligible for parole during the mandatory period of imprisonment. .

Co-defendants Wendy Okimoto and Kevin Wayne Anthony were charged with the same first four counts as Jobert Maldonado (Maldonado), but they were acquitted of all counts. . Maldonado asserts insufficient evidence to support "the convictions for all charges.” However, Maldonado does not provide an argument with respect to Count V (Promoting a Dangerous Drug in the Second Degree).

Therefore, pursuant to Hawaii Rules of Appellate Procedure (HRAP) Rule 28(b)(7), we do not need to address this claim because "points not argued may be deemed waived.” If we were to address this claim, we would conclude there was sufficient evidence to support all convictions.