NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER
NO. 27537
Nishihara's sole point on appeal is that "[t]he court erred by including a reckless state of mind in the lesser included charge of Terroristic Threatening 2, which defendant was ultimately convicted of." Nishihara's sole question presented is whether the court erred "when it instructed the jury that defendant only needed reckless, rather than intentional intent to threaten complaining witnesses in the lesser included offense of Terroristic Threatening 2 in count 2 of the complaint." Nishihara argues that "[b]ased on the instructions given by the court the jury may have convicted him only because he was recklessly threatening Mr. or Mrs. Chong, instead of actually intending to[.]"
The word "threat" means "an expression of intention to inflict evil, injury, or damage[.]" Merriam-Webster's Collegiate Dictionary, (11th Ed. 2004) at 1302. In Hawai`i, a threat is not a crime unless it is a "terroristic threat[.]" HRS § 707-715 (1993) states as follows:
Terroristic threatening, defined. A person commits the offense of terroristic threatening if the person threatens, by word or conduct, to cause bodily injury to another person or serious damage to property of another or to commit a felony:
(2) With intent to cause,
or in reckless disregard of the risk of causing evacuation of a
building, place of assembly, or facility of public
transportation.
The court instructed the jury consistent with the applicable statute. (2) Nishihara was convicted of threatening, by word, to cause bodily injury to another person, in reckless disregard of the risk of terrorizing another person.
In Virginia v. Black, 538 U.S. 343 (2003), both defendants were convicted of attempted cross burning with intent to intimidate and one of them was also convicted of conspiracy to commit a felony. In the following quote, the court discussed a "true threat":
Furthermore, "the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action." Brandenburg v. Ohio, 395 U.S. 444, 447, 89 S.Ct. 1827, 23 L.Ed.2d 430 (1969) (per curiam). And the First Amendment also permits a State to ban a "true threat." Watts v. United States, 394 U.S. 705, 708, 89 S.Ct. 1399, 22 L.Ed.2d 664 (1969) (per curiam) (internal quotation marks omitted); accord, R.A.V. v. City of St. Paul, [505 U.S. 377] supra, at 388, 112 S.Ct. 2538 ("[T]hreats of violence are outside the First Amendment"); Madsen v. Women's Health Center, Inc., 512 U.S. 753, 774, 114 S.Ct. 2516, 129 L.Ed.2d 593 (1994); Schenck v. Pro-Choice Network of Western N. Y., 519 U.S. 357, 373, 117 S.Ct. 855, 137 L.Ed.2d 1 (1997).
538 U.S. at 359-60.
Citing Black, Nishihara contends that "recent United States Supreme Court and Federal Ninth Circuit Court of Appeals cases have found that speech may be deemed unprotected by the First Amendment of the United States Constitution as a 'true threat' only upon proof that the speaker subjectively intended the speech as a threat."
As noted above, HRS § 707-715(1) describes two types of terroristic threats. The first is done with the intent to terrorize. The second is done in reckless disregard of the risk of terrorizing. Nishihara contends that only the first type is a true threat not protected by the First Amendment of the United States Constitution. In his view, the second type is not a true threat because it is not done with the intent to terrorize. We disagree. The Black quote above states that "a prohibition on true threats 'protect[s] individuals from the fear of violence' and 'from the disruption that fear engenders,' in addition to protecting people 'from the possibility that the threatened violence will occur.'" 538 U.S. at 360.
In accordance with Hawai`i Rules of Appellate Procedure Rule 35, and after carefully reviewing the record and the briefs submitted by the parties, and duly considering and applying the law relevant to the issues raised and arguments presented, IT IS HEREBY ORDERED that the September 6, 2005 Judgment is affirmed.
DATED: Honolulu, Hawai`i, September 15, 2006.
On the briefs:
1.
The September 6,
2005 Judgment was entered by Judge Faauuga L. Tootoo.
2.
The court instructed
the jury in part:
There are two material elements of the
offense . . . , each of which the prosecution must prove beyond a
reasonable doubt.
These two elements are: 1. That, . . . , the defendant threatened by
word or conduct to cause bodily injury to another person; and 2. That the defendant did so in reckless
disregard of the risk of terrorizing that person. The threat on its face and in the
circumstances in which it is made must be so unequivocal,
unconditional, immediate and specific as to the person
threatened, as to convey a gravity of purpose and an imminent prospect
of execution, or the defendant must possess the apparent ability to
carry out the
threat such that the threat would reasonably tend to induce fear of
bodily injury in the person against whom the threat was uttered. A person acts recklessly with respect to a
result of his conduct when he consciously disregards a substantial and
unjustifiable risk that his conduct will
cause such a result.