-No. SCWC-29799 Thursday, May 3, 2012, 9 a.m.

STATE OF HAWAI`I, Respondent/Plaintiff-Appellant, vs. RAYMOND L. FOSTER, also known as “RAY,” Petitioner/Defendant-Appellee.

Attorney for Petitioner/Defendant-Appellee: Cynthia A. Kagiwada

Attorneys for Respondent/Plaintiff-Appellant: John D. Kim, Prosecuting Attorney; Renee Ishikawa Delizo, Deputy Prosecuting Attorney

The above-captioned case has been set for argument on the merits at:

Supreme Court Courtroom
Ali`iolani Hale
417 South King Street
Honolulu, HI 96813

NOTE: Certificate of Recusal, by Associate Justice James E. Duffy, Jr., filed 02/09/12.

NOTE: Order assigning Circuit Court Judge Randal K.O. Lee in place of Associate Justice James E. Duffy, Jr., filed 02/13/12.

NOTE: Order Accepting Application for Writ of Certiorari, filed 03/22/12.

COURT: MER, CJ; PAN, SRA, & SSM, JJ; Circuit Court Judge Randal K.O. Lee, in place of Associate Justice James E. Duffy, Jr., recused.

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Brief Description:

Petitioner/Defendant-Appellee Raymond L. Foster filed an Application for Writ of Certiorari seeking review of the November 10, 2011 judgment of the ICA filed pursuant to its October 18, 2011 summary disposition order (SDO) vacating the April 2, 2009 findings of fact, conclusions of law, and order granting Foster’s post-verdict renewed motion for acquittal entered in the Circuit Court of the Second Circuit and remanding for resentencing based on the jury verdicts.

Following a jury trial, Foster was convicted of one count of being a felon in possession of a firearm and one count of being a felon in possession of ammunition, both in violation of Hawai`i Revised Statutes § 134-7(b). At a post-verdict hearing, the circuit court granted Foster’s renewed motion for acquittal, concluding that a reasonable juror could not make the inference that Foster was in constructive possession of the items because the evidence did not establish that Foster had the requisite intent to exercise dominion and control over them. On appeal by the State, the ICA concluded that there was sufficient evidence from which a juror could infer possession of the items.

In his application, Foster argues that the ICA’s decision is obviously inconsistent with decisions of this court, the ICA, and federal courts because it misapplied the law of constructive possession by relying on the facts that Foster was near the items at the time of arrest and that he was the owner of the vehicle in which the items were found.