NOT FOR PUBLICATION IN WEST'S HAWAI`I REPORTS AND PACIFIC REPORTER
NO. 26477
IN
THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI`I
Defendant-Appellant
Yoji Wachi (Wachi) appeals from the Judgment filed on March
22, 2004, in the Family Court of the First Circuit (family court). (1) A jury found
Wachi guilty as charged of abuse of a family or household member, in
violation of
Hawaii Revised Statutes (HRS) Section 709-906 (Supp. 2005) (2) (Count
1), and second
degree terroristic threatening (Terroristic Threatening II), in
violation of HRS
Sections 707-715 and 707-717(1) (1993) (3)
(Count
2). The family court sentenced
Wachi to concurrent probationary terms of two years
on Count 1 and one year on
Count 2, with a special condition of two days' imprisonment.
Wachi agreed to
the jury instructions given by the family court on the material
elements and mental states required for the offenses of Terroristic
Threatening II
and abuse of a family or household member. Nevertheless, on appeal,
Wachi claims
that the family court erred by giving those instructions. Wachi argues
that the
family court committed plain error by: 1) failing to require proof of a
"general
mens rea" in instructing the jury on the offense of Terroristic
Threatening II;
and 2) failing to define the term "attendant circumstances" in
instructing the
jury on the offense of abuse of a family or household member.
After a careful review of the record and the briefs submitted
by the parties, we
hold as follows: 1. The family court did not err in instructing the jury on the
mens rea required
for Terroristic Threatening II. The family court instructed the jury as
follows:
There are two material elements of the offense of Terroristic Threatening in the Second Degree, each of which -- each of which the prosecution must prove beyond a reasonable doubt.
[T]hat Yoji Wachi did so with the intent to -- to terrorize, or in reckless disregard of the risk of terrorizing, [the CW].
(Paragraph format
altered from original transcript; emphases added.)
Wachi contends
that the Terroristic Threatening II offense requires proof of an
additional "general mens rea," namely, that
Wachi threatened, by word or conduct, to cause bodily injury to the
complaining witness (the CW) "intentionally,
knowingly, or recklessly." He argues that the Terroristic Threatening
II instruction was defective because it did not require
proof of this additional "general mens rea." We disagree. The plain
language of HRS Section 707-715 establishes that the
requisite mental state for Terroristic Threatening II is acting "[w]ith
the intent to terrorize, or in reckless disregard of the
risk of terrorizing, another person." HRS § 707-715(1). The case
law supports this conclusion. See
State v. Klinge, 92
Hawai`i 577, 586-89, 994 P.2d 509, 518-21 (2000); State v.
Alston, 75 Haw. 517, 531-35, 865 P.2d 157, 165-67 (1994). The
family court's
instruction was proper. It therefore follows that the court's
instruction was not
"prejudicially insufficient, erroneous, inconsistent, or misleading." State v.
Vanstory, 91 Hawai`i 33, 42, 979 P.2d 1059, 1068 (1999).
2. The family
court did not err in failing to further define the term "attendant
circumstances" in instructing the jury on the
offense of abuse of a family or household member. Wachi contends that
the term "attendant circumstances" is "a technical
legal term that has no meaning to a member of the jury (a non-lawyer)
in the context of a criminal case such as the instant
one." According to Wachi, because the term "attendant circumstances"
was not further defined, the jury had no means of
determining that the second material element -- that Wachi and the CW
were either family or household members -- was an
attendant circumstance. He therefore argues that the jury did not know
that it was supposed to apply the portions of the
state-of-mind instructions pertaining to attendant circumstances in
deciding whether the prosecution had proved the second
material element. We disagree with Wachi's arguments.
The term
"attendant circumstances" is plain English and has a commonly
understood meaning. The jury could easily figure
out which element was the attendant circumstances of the abuse of
family or household member offense and thus which
portions of the state-of-mind instructions to apply. The term
"attendant circumstances" was chosen by the Hawai`i
Legislature to describe one of the three types of elements that can be
specified in an offense. HRS § 702-205 (1993). The
Legislature did not further define the term and the family court was
not required to do so. State
v. Haili, 103 Hawai`i 89,
108-09, 79 P.3d 1263, 1282-83 (2003).
IT IS HEREBY
ORDERED that the March 22, 2004, Judgment of the Family Court of the
First Circuit is
affirmed.
DATED: Honolulu,
Hawai`i, October 26, 2006.
On the briefs:
Earle A. Partington
for Defendant-Appellant
Daniel H. Shimizu
Deputy Prosecuting Attorney
City and County of Honolulu
for Plaintiff-Appellee
1. The Honorable Rhonda
Nishimura presided.
2. Hawaii Revised Statutes (HRS) § 709-906 (Supp. 2005) provides, in relevant part:
For the purposes of this section, "family or household member" means spouses or reciprocal beneficiaries, former spouses or reciprocal beneficiaries, persons who have a child in common, parents, children, persons related by consanguinity, and persons jointly residing or formerly residing in the same dwelling unit.
3. HRS § 707-715 (1993) provides, in relevant part:
(1) With the intent to terrorize, or in reckless disregard of the risk of terrorizing, another person . . . .
HRS § 707-717(1) (1993) provides:(1) A person commits the offense of terroristic threatening in the second degree if the person commits terroristic threatening other than as provided in section 707-716.
HRS § 707-716 (1993), in turn, provides, in relevant part:(1) A person commits the offense of terroristic threatening in the first degree if the person commits terroristic threatening:
(b) By threats made in a common scheme against different persons; or
(d) With the use of a dangerous instrument.