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Judge rejects guilty verdict in gun case


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POSTED: Tuesday, February 17, 2009

WAILUKU » Circuit Judge Joel August has overturned a jury's guilty verdicts and acquitted a felon of charges that he illegally possessed an assault rifle and ammunition.

Raymond Foster, 47, now faces a five-year prison sentence for drug possession, half what he originally faced after being found guilty on Jan. 22 of being a felon in possession of a firearm and ammunition.

Deputy Prosecutor Mark Simonds said the state will appeal, which could delay sentencing.

After a two-week trial, a Maui jury found Foster guilty of being a felon in possession of a firearm and ammunition, as well as third-degree promotion of a dangerous drug and third- degree promotion of a detrimental drug.

Last week, defense attorney Chris Dunn asked August to acquit Foster of the firearm and ammunition charges because evidence presented at the trial showed Foster knew the rifle was in his vehicle at some point, but that only his passengers handled the weapon and ammunition.

“;Knowledge, presence and association are not enough to prove Mr. Foster's possession,”; Dunn said.

The prosecutor believes that enough evidence was presented for jurors to infer that Foster possessed the weapon.

“;A reasonable jury could find and did find the defendant had power and intention to exercise dominion and control over this weapon,”; Simonds said. “;There is more than sufficient evidence to support the jury's verdict.”;

Foster was driving a sport utility vehicle carrying three passengers when state Department of Land and Natural Resources enforcement officers stopped the vehicle early in the morning on Aug. 27, 2006, on Piilani Highway in Kanaio.

Officers reported finding a clip with three bullets on the front seat and an assault rifle on the floor behind the passenger seat. Methamphetamine, marijuana and muscle-relaxant pills were also recovered.

The judge said there was no evidence at trial that the defendant had even touched or attempted to touch or handle the weapon at any time.

“;Mere proximity is not enough,”; August said. “;There was insufficient evidence indicating that the defendant had the necessary intent to exercise control and dominion over the firearm.”;

Prosecutors said the appeal could delay Foster's sentencing.

Foster has 18 convictions dating to 1983 and has served prison time for kidnapping, second-degree robbery, first-degree terroristic threatening and first-degree escape, according to the Hawaii Criminal Justice Data Center.