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Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
15-SEP-2020
07:56 AM
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
STATE OF HAWAI#I, Plaintiff-Appellee, v.
GRANT K. KANAKAOLE, also known as
Grant K.P.K. Kanakaole, Defendant-Appellant
APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT
KANE#OHE DIVISION
(CASE NO. 1DCW-XX-XXXXXXX)
SUMMARY DISPOSITION ORDER
(By: Ginoza, C.J., and Chan and Wadsworth, JJ.)
Defendant-Appellant Grant K. Kanakaole, also known as
Grant K.P.K. Kanakaole (Kanakaole), appeals from the Judgment and
Notice of Entry of Judgment (Judgment), entered on March 28,
2019, in the District Court of the First Circuit, Kane#ohe
Division (District Court).1/ Following a bench trial, Kanakaole
was convicted of one count of Terroristic Threatening in the
Second Degree (TT2), in violation of Hawaii Revised Statutes
(HRS) § 707-717(1).2/
1/
The Honorable Patricia A. McManaman presided.
2/
HRS § 707-717(1) (2014) provides:
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 [Terroristic threatening in the first degree].
HRS § 707-715 (2014) defines terroristic threatening by stating,
in relevant part:
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The charge stemmed from a verbal altercation between
Kanakaole and a woman (Complainant) who allegedly had taken his
prescription glasses and thrown them in the ocean a day or two
earlier. Kanakaole is alleged to have told Complainant during
the altercation that if his wife were there, or found out that
Complainant had gotten rid of his glasses, his wife would shoot
or kill Complainant. On appeal, Kanakaole contends that the
District Court wrongly convicted him based on insufficient
evidence that he made a "true threat."
Upon careful review of the record and the briefs
submitted by the parties and having given due consideration to
the arguments advanced and the issues raised by the parties, we
resolve Kanakaole's contention as follows and reverse the
Judgment.
I. RELEVANT BACKGROUND
At trial, witness MF testified that on May 15, 2018, he
was in the garage of his mother's residence in Kane#ohe, when he
overheard yelling "[n]ext door on our property," where his
cousins, Jeffrey and Antonio, lived. MF walked down his mother's
driveway and saw Kanakaole's car "[p]arked right in the . . .
driveway on the other side of . . . [o]ur family property." MF
knew Kanakaole through Antonio. Kanakaole did not live on the
family property; he was there visiting.
MF testified that "[Kanakaole] came walking up towards
his car from the lower part of . . . the property and as he got
closer to his car, [MF] could hear [Kanakaole] yelling at
[Complainant]." MF had no idea who Complainant was. "[MF]
caught the tail end of it and [Kanakaole] was saying something to
the fact that, he kept repeating about his prescription glasses
being thrown in the water or the ocean, and he was saying that if
2/
...continue
A person commits the offense of terroristic
threatening if the person threatens, by word or conduct, to
cause bodily injury to another person . . .:
(1) With the intent to terrorize, or in reckless
disregard of the risk terrorizing, another
person[.]
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my wife was here she would shoot you or kill you . . . for doing
that." Kanakaole was "walking towards his car and he was about
to leave but . . . before he got into the car he yelled at her .
. . and told her that[.]" Kanakaole was "maybe 50 feet or more"
from Complainant when he yelled at her. MF "couldn't see
[Complainant] but [he] could hear her yelling back."
MF testified that Kanakaole "was pretty upset[.]"
[Kanakaole] said, fuck, . . . if my wife was here she would shoot
you for doing what you did, you know, throw my glasses in the
water, or ocean, whatever, for doing that. If she was here, she
would shoot you. Or kill you. Either one." MF was about sixty
feet away from Kanakaole when MF heard this. MF heard Kanakaole
say two or three times "if my wife was here, she'd shoot you,
kill you[.]"
On cross-examination, MF testified that "Kanakaole was
telling [Complainant], if my wife found out that you got rid of
my prescription glasses she would come down here and . . . kill
you or shoot you." MF did not see Kanakaole try to hit, make a
fist at, or point at Complainant. Kanakaole did not display a
gun, and his wife was not in the car or on the property, from
what MF could see.
Kanakaole also testified. He explained that on the
date of the incident, he dropped off Antonio3/ at McDonald's.
They had forgotten to close the gate where Antonio lived, so
Antonio told Kanakaole to go back and lock it. When Kanakaole
arrived at the property, he saw Complainant, who had taken his
glasses and was not supposed to be on the property. Kanakaole
told Complainant, "you took my glasses." "And [Complainant]
said, yeah, . . . I took the glasses and threw it in the ocean,
but I got a job now and I'm gonna pay for it."
Kanakaole testified that he was upset, but he did not
hit or push Complainant. As he left the property, he was
"venting," but Complainant was "far away" when he was talking –
"maybe more than like [a] hundred feet away." Kanakaole
"[wasn't] saying like [he was] going to do anything to
3/
In his testimony, Kanakaole referred to "Anthony," who appears to
be the same person identified by MF as Antonio.
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[Complainant,]" and he "wasn't . . . right in her face . . .
screaming at her[.] According to Kanakaole, he did not "yell out
that if [his] wife was there, she would shoot [Complainant], that
she would kill her[.]" When asked what he was yelling, Kanakaole
testified: "I was just saying probably if my wife had a – like a
gun she'd probably shoot me and [Complainant], so it wasn't like
I was threatening her. I was just yelling because I was mad that
she didn't get off of the property when I kept asking her to
leave because I was told to lock the gate."
The District Court found Kanakaole guilty of the TT2
charge. The court reasoned in part: "Certainly, if somebody
said to you, if my wife or my husband finds out about it he's
going to kill you, that would raise alarm in the normal person."
The court also found MF to be "wholly credible" and concluded
that "[Kanakaole's] words weren't mumbling. [His] words were
loud, clear, and audible for the State's witness to be able to
hear it and articulate it."
II. DISCUSSION
Kanakaole argues that the District Court wrongly
convicted him of TT2 based on insufficient evidence "that his
venting constituted a true threat that was so unequivocal,
unconditional, [and] immediate, as to convey a gravity of purpose
and imminent prospect of execution."
Sufficient evidence to support a conviction requires
substantial evidence as to every material element of the offense
charged. State v. Grace, 107 Hawai#i 133, 139, 111 P.3d 28, 34
(App. 2005) (quoting State v. Ferrer, 95 Hawai#i 409, 422, 23
P.3d 744, 757 (App. 2001)). Substantial evidence is "credible
evidence which is of sufficient quality and probative value to
enable a person of reasonable caution to support a conclusion."
Id. The evidence must be "viewed in the light most favorable to
the prosecution and in full recognition of the province of the
trier of fact," who must "determine credibility, weigh the
evidence, and draw justifiable inferences of fact." Id.
To establish that Kanakaole committed TT2, the State
was required to prove beyond a reasonable doubt that Kanakaole
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threatened, by word or conduct, to cause bodily injury to
Complainant in reckless disregard of the risk of terrorizing her.
See HRS §§ 702-206(3) (2014), 707–715(1), and 707-717(1). In
other words, the State was required to prove, under the
circumstances presented: (1) Kanakaole's statements that if his
wife were there, or found out that the Complainant got rid of his
glasses, his wife would shoot or kill Complainant (the conduct
element); (2) bore the attributes of a "true threat" (the
attendant circumstances element); and (3) Kanakaole recklessly
disregarded the risk that his remarks would terrorize Complainant
(the requisite state of mind). See In re PP, 133 Hawai#i 235,
240, 325 P.3d 647, 652 (App. 2014).
In State v. Valdivia, 95 Hawai#i 465, 24 P.3d 661
(2001), the Hawai#i Supreme Court discussed the "true threat"
requirement for a terroristic threatening prosecution as follows:
As our discussion reflects, [State v. Chung, 75 Haw.
398, 862 P.2d 1063 (1993)] judicially narrowed the meaning
of the word "threat," as employed in HRS § 707–715, in order
to salvage the statutes defining terroristic threatening
offenses from unconstitutional overbreadth. As a result,
Chung mandates that, in a terroristic threatening
prosecution, the prosecution prove beyond a reasonable doubt
that a remark threatening bodily injury is a "true threat,"
such that it conveyed to the person to whom it was directed
a gravity of purpose and imminent prospect of execution. In
other words, the prosecution must prove beyond a reasonable
doubt that the alleged threat was objectively capable of
inducing a reasonable fear of bodily injury in the person at
whom the threat was directed and who was aware of the
circumstances under which the remarks were uttered. Under
the particular circumstances of Chung, as we have indicated,
the "true threat" was "so unequivocal, unconditional,
immediate, and specific as to the person threatened, as to
convey a gravity of purpose and imminent prospect of
execution."
. . . .
We agree with the California Supreme Court that the
"imminency" required by [United States v. Kelner, 534 F.2d
1020 (2d Cir. 1976)], and hence by Chung, can be established
by means other than proof that a threatening remark will be
executed immediately, at once, and without delay. Rather,
as a general matter, the prosecution must prove that the
threat was objectively susceptible to inducing fear of
bodily injury in a reasonable person at whom the threat was
directed and who was familiar with the circumstances under
which the threat was uttered. Of course, one means of
proving the foregoing would be to establish, as in Chung and
Kelner, that the threat was uttered under circumstances that
rendered it "so unequivocal, unconditional, immediate, and
specific as to the person threatened, as to convey a gravity
of purpose and imminent prospect of execution." But another
would be to establish that the defendant possessed "the
apparent ability to carry out the threat," such that "the
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threat . . . would reasonably tend to induce fear of bodily
injury in the victim."
Id. at 476-77, 24 P.3d 672-73 (citations and original brackets
omitted).
Viewing the evidence adduced in the strongest light for
the prosecution, we conclude that the evidence was insufficient
to establish that Kanakaole's statements bore the attributes of a
"true threat." On direct examination, MF testified that
Kanakaole said, "[I]f my wife was here she would shoot you or
kill you . . . for doing that." (Emphasis added.) MF later
testified that Kanakaole said, "[I]f my wife was here she would
shoot you for doing what you did, you know, throw my glasses in
the water, or ocean, whatever, for doing that. If she was here,
she would shoot you. Or kill you. Either one." (Emphasis
added.) On cross-examination, MF testified that Kanakaole said,
"[I]f my wife found out that you got rid of my prescription
glasses she would come down here and . . . kill you or shoot
you." (Emphasis added.) Despite the minor discrepancy in MF's
testimony, the District Court found him credible, and we decline
to pass upon that determination. See In re PP, 133 Hawai#i at
239, 325 P.3d at 651 ("we give full play to the right of the fact
finder to determine credibility" (quoting Grace, 107 Hawai#i at
139, 111 P.3d at 34)); see also State v. Mitchell, 94 Hawai#i
388, 393, 15 P.3d 314, 319 (App. 2000) (minor inconsistencies in
a witness's testimony do not make it incredible as a matter of
law).
Nevertheless, on this record, we cannot conclude that
either variation of the alleged threat was "objectively capable
of inducing a reasonable fear of bodily injury in the person at
whom the threat was directed and who was aware of the
circumstances under which the remarks were uttered." Valdivia,
95 Hawai#i at 476, 24 P.3d 672. Both variations of Kanakaole's
alleged threat are conditional, and there was no evidence adduced
at trial that Kanakaole's wife was present on the property when
the remarks were uttered, that she would "find out" about the
missing glasses through Kanakaole or anyone else, or that
Kanakaole (or his wife) possessed the apparent ability to carry
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out the alleged threat. In addition, Kanakaole was at least
fifty feet away from Complainant when he made the remarks, and
was in the process of getting in his car and leaving the scene.
Finally, and relatedly, there was no evidence adduced that
Complainant felt threatened by Kanakaole's alleged threat.4/
While "actual terrorization" is not required to prove the TT2
offense, the supreme court has stated:
[A] complainant's fear caused by a defendant's words or
conduct is relevant evidence in a prosecution of terroristic
threatening, as such fear may be circumstantial evidence
that the utterance or conduct (1) was a "true threat," or
(2) was intended to terrorize or in reckless disregard of
the risk of terrorizing another person. By the same token,
a complainant's lack of fear may be circumstantial evidence
that the defendant's words or conduct did not constitute a
"true threat" or that the defendant did not act with the
requisite state of mind.
State v. McGhee, 140 Hawai#i 113, 120, 398 P.3d 702, 709 (2017)
(citation and footnotes omitted).
Notwithstanding the caustic and hyperbolic language
that Kanakaole used, there is nothing in the record that could
reasonably support a conclusion that the alleged threat was "so
unequivocal, unconditional, immediate[,] and specific as to the
person threatened, as to convey a gravity of purpose and imminent
prospect of execution." Valdivia, 95 Hawai#i at 476, 24 P.3d
672; see also McGhee, 140 Hawai#i at 121 n.9, 398 P.3d at 710 n.9
("[E]vidence as to the complainant's reaction to the threat is a
relevant consideration as to the objective capability assessment
and in evaluating whether the threat was 'so unequivocal,
unconditional, immediate[,] and specific as to the person
threatened, [that it] convey[ed] a gravity of purpose and
imminent prospect of execution.'" (quoting Valdivia, 95 Hawai#i
at 476, 24 P.3d at 672) (some internal quotation marks omitted)).
Because there was insufficient evidence of a "true threat,"
there was insufficient evidence that Kanakaole violated HRS
§ 707-717(1). See In re PP, 133 Hawai#i at 246, 325 P.3d at 658.
4/
Indeed, after the District Court found Kanakaole guilty, the court
stated that "in terms of sentencing, . . . I understand what the goal of the
statute is, but I'm not hearing anything here that . . . [Complainant] was
alarmed, that she stuck around. I didn't even necessarily hear that . . .
[MF] was alarmed."
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III. CONCLUSION
For these reasons, the Judgment and Notice of Entry of
Judgment, entered on March 28, 2019, in the District Court of the
First Circuit, Kane#ohe Division, is reversed.
DATED: Honolulu, Hawai#i, September 15, 2020.
On the briefs:
/s/ Lisa M. Ginoza
Walter J. Rodby Chief Judge
for Defendant-Appellant.
Sonja P. McCullen, /s/ Derrick H.M. Chan
Deputy Prosecuting Attorney, Associate Judge
City & County of Honolulu,
for Plaintiff-Appellee.
/s/ Clyde J. Wadsworth
Associate Judge
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