WAILUKU - Overturning a jury's guilty verdicts, 2nd Circuit Judge Joel August acquitted a felon last week of charges that he illegally possessed an assault rifle and ammunition found in his vehicle, The Maui News reported Monday.

"There was no evidence at the trial that the defendant had even touched or attempted to touch or handle the weapon at any time," August said Wednesday. "Mere proximity is not enough. There was insufficient evidence indicating that the defendant had the necessary intent to exercise control and dominion over the firearm."

Deputy Prosecutor Mark Simonds said the state will appeal the ruling, which leaves Raymond Foster facing a five-year prison term for drug possession instead of 10-year prison terms for being a felon in possession of a firearm and ammunition.

Foster was driving a 1985 Toyota 4Runner carrying three passengers when state Department of Land and Natural Resources enforcement officers stopped the vehicle at about 2 a.m. Aug. 27, 2006, on an isolated stretch near Mile Marker 22 on Piilani Highway in Kanaio.

The officers reported finding a banana clip containing three bullets on the front seat and an assault rifle on the floor behind the passenger seat. A Marlboro cigarette pack on the driver's side floor contained methamphetamine. In a bank bag, another cigarette pack held packets containing methamphetamine, marijuana and muscle-relaxant pills, officials reported.

On Jan. 22, after a two-week trial, a jury found Foster guilty of being a felon in possession of a firearm and being a felon in possession of ammunition, as well as third-degree promotion of a dangerous drug and third-degree promotion of a detrimental drug. The 47-year-old was acquitted of charges of possessing drug paraphernalia and fourth-degree promotion of a harmful drug.

In court Wednesday, defense attorney Chris Dunn asked the judge to acquit Foster of the firearm and ammunition charges. He said evidence presented at the trial showed Foster knew the rifle was in the vehicle at some point, but only his passengers handled the weapon and ammunition.

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

Simonds argued 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."

According to trial testimony, Foster had picked up front-seat passenger Philip Malano, who had a black ukulele case and said he was running from police because of a warrant. Two girls were in the back seat as Foster drove to Kaupo, where Malano pulled out the rifle and shot several rounds at an abandoned vehicle. One girl reportedly had helped Malano load ammunition. Malano got back into the vehicle, and Foster was driving back to Pukalani when DLNR officers encountered the vehicle.

"The state disagrees with the court's ruling," Simonds said afterward. "This was a two-week trial with two previous denials of motions for judgments of acquittal, with two days of deliberations. And the state will be appealing this ruling, which we believe is not based on the evidence educed at trial."

Simonds said Foster's sentencing may be delayed while the appeal is pending.

According to the Hawaii Criminal Justice Data Center, Foster has 18 convictions dating to 1983. In 1989, he was sentenced to consecutive prison terms after being convicted of kidnapping, second-degree robbery, first-degree terroristic threatening and first-degree escape.

Malano, 40, of Pukalani, was sentenced last year to a 10-year prison term after pleading no contest to third-degree promotion of a dangerous drug, possessing drug paraphernalia, being a felon in possession of a firearm, being a felon in possession of ammunition, third-degree promotion of a detrimental drug and fourth-degree promotion of a harmful drug.

* Lila Fujimoto can be reached at lfujimoto@mauinews.com.