LAW LIBRARY NOT FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER NO. 29557 Ss IN THE INTERMEDIATE COURT OF APPEALS = i OF THE STATE OF HAWAI‘I ND " n =~ i = rr Plaintiff-Appellee, v. —: on & wn STATE OF HAWAI‘I, ALBERT JESSE BURDETT, Defendant-Appellant APPBAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT (CR. NO. 07-1-1441) ORDER ON RECONSIDERATION Fujise and Leonard, JJ.) (By: Foley, Presiding Judge, Defendant-Appellant Albert Jesse Burdett (Burdett) entered on December 23, 2008, by the (circuit court) .? appeals the Judgment, Circuit Court of the First Circuit Burdett was convicted of Promoting a Dangerous Drug in (HRS) in violation of Hawaii Revised Statutes in violation of HRS § 329-43.5(a) (1993).

On March 9, 2010, this court entered a Summary affirming the December 23, 2008 Judgment, the Third Degree, § 712-1243 (Supp. 2009) and Unlawful Use of Drug Paraphernalia, Disposition Order, entered by the circuit court on both counts, ruling that [t]here was credible evidence of "sufficient quality and probative value to enable a person of reasonable caution to support a conclusion" that Burdett knowingly possessed a State v. Matavale, 115 (quoting 330-31 (2007) dangerous drug in any amount. 166 P.3d 322, 831 P.2d 924, Hawai‘i 149, 157-58, State v. Batson, 73 Haw. 236, 248-49, (brackets omitted) . (1992) ) There was credible evidence of "sufficient quality and probative value to enable a person of reasonable caution to support a conclusion" that Burdett knowingly used drug 2010 and an On June 14, paraphernalia to use cocaine. Id. Judgment was entered on March 23, application for writ of certiorari was timely filed. (ICA) 2010, the Hawai‘i Supreme Court issued an Order Accepting Application for Writ of Certiorari; Affirming the Judgment as to Count I; and Remanding to the Intermediate Court of Appeals * The Honorable Virginia L. Crandall presided.

NOT FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER as to Count II. The supreme court vacated this court's judgment as to Count II and ordered this court to reconsider its decision’ as to Count II "inasmuch as [Hawaii Revised Statutes (HRS) ] § 329-43.5(a) requires an intentional state of mind and the ICA held there was sufficient evidence of a knowing state of mind." Upon careful review of the record and the arguments made in the briefs by the parties, we conclude that there was substantial evidence in support of Burdett's conviction for Unlawful Use of Drug Paraphernalia.

Honolulu Police Officer Tyler Maalo (Officer Maalo) testified that he initially observed Burdett squatting down with a group of people who were looking intently at what Burdett was holding in his hands. Officer Maalo was in uniform. He could see "something yellow" in Burdett's hands. As Officer Maalo approached the group, a female in the group tapped Burdett's shoulder, said something to him, and pointed to Officer Maalo.

Officer Maalo then observed Burdett rise and saw Burdett drop a yellow lighter and a glass pipe and heard both land on the concrete. The pipe was later determined to contain cocaine.

Burdett argues that his testimony that his physical condition made it impossible to crouch down contradicted Officer Maalo's testimony and rendered the State's evidence insufficient.

However, Burdett's argument is merely contesting the credibility of the State's witness and the jury apparently found Officer Maalo's testimony credible. "It is well-settled that an appellate court will not pass upon issues dependent upon the credibility of witnesses and the weight of the evidence; this is the province of the trier of fact." State v. Mattiello, 90 Hawai‘i 255, 259, 978 P.2d 693, 697 (1999) (internal quotation marks, citation, and brackets omitted; block quote format changed) .

Taking the evidence, determined by the jury to be credible, in the light most favorable to. the prosecution, we conclude that it was of "sufficient quality and probative value to enable a person of reasonable caution to support a NOT FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER conclusion[,]" State v. Richie, 88 Hawai‘i 19, 33, 960 P.2d 1227, 1241 (1998) (internal quotation marks and citation omitted), that Burdett intentionally used or intended to use drug paraphernalia with the intent to use it to ingest, inhale or otherwise introduce a controlled substance into the human body. State v. Locquiao, 100 Hawai‘i 195, 206, 58 P.3d 1242, 1253 (2002).

Therefore, IT IS HEREBY ORDERED that the December 23, 2008 Judgment entered as to Count ITI by the Circuit Court of the First Circuit, is affirmed.

DATED: Honolulu, Hawai‘i, July 26, 2010.

On the briefs: Stuart N. Fujioka, for Defendant-Appellant. lena fe. Fe Delanie D. Prescott-Tate, Lb ht “ Deputy Prosecuting Attorney, City and County of Honolulu, Associate Judgé for Plaintiff-Appellee. ;