State v. Oliveros

N0. 23935 §§

IN THE INTERMED1ATE COURT oF APPEALs f§
4 i:.e.}

oF THE sTATE oF HAwAfI '“

sTATE oF HAwAfI, P1aintiff-Appe11ee, WY
v s

GERALD 0LIVEROS, Defendant-Appellant.

APPEAL FROM THE FAMILY COURT OF THE FIRST CIRCUIT
(FC-CR NO. 07-l-l99l)

MEMORANDUM OPINION
(By: Nakamura, C.J., Fujise, Leonard, JJ.)

Defendant-Appellant Gerald Oliveros (Oliveros) appeals

from the Judgment entered by the Family Court of the First

Circuit (family court).W Plaintiff-Appellee State of HawaiH

(State) charged Oliveros with second degree terroristic
in violation of Hawaii Revised Statutes (HRS)

threatening,
The complaining witness (CW)

§§ 707-715 and 707-717(1) (1993).W

V The Honorable Patrick W. Border presided.

y Hawaii Revised Statutes (HRS) § 707-715, 707-716 (Supp. 2009), and

707~717(1) provide, in relevant part:

§707-715 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 .

(1) With the intent to terrorize, or in reckless disregard
of the risk of terrorizing, another person[.]

§707-716 Terroristic threatening in the first degree.
(1) A person commits the offense of terroristic threatening in
the first degree if the person commits terroristic threatening:

(a) By threatening another person on more than one
occasion for the same or a similar purpose;

(b) By threats made in a common scheme against
different persons;

(c) Against a public servant . . .;

(continued...)

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was Oliveros's wife. Following a jury trial, Oliveros was found
guilty as charged. Oliveros was sentenced to probation for a
term of one year, with the special condition that he serve
twenty-five days in jail.

On appeal, Oliveros argues that the family court: l)
erred in admitting evidence of Oliveros's possession of a gun two
weeks prior to the charged offense; 2) erred in not granting a
mistrial after the Deputy Prosecuting Attorney (DPA) asked the CW
whether the CW "saw [Oliveros] with a gun that you believed was
not registered?"; 3) erred in allowing the mother of Oliveros's
friend to testify about Oliveros's uninvited entry into a house
to look for the CW on the night following the alleged offense;
and 4) committed plain error in giving an instruction on
terroristic threatening urged by the defense. Oliveros also
argues that there was insufficient evidence to support his
conviction.

For the reasons discussed below, we affirm Oliveros's
conviction.

BACKGROUND
At the time of the charged offense, Oliveros and the CW

were married and living in the same house with their two

'children. The CW testified that on June 30, 2007, in the

evening, Oliveros, the CW, and their children went to a house in
Kunia for a party. The CW described Oliveros as looking "angry

W(...continued)
(d) Against any emergency medical services personnel who is
engaged in the performance of duty. . . .; or
(e) With the use of a dangerous instrument.

§707-717 Terroristic threatening in the second degree.
(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.

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most of the night." Around 11:OO p.m., the CW and Oliveros got
into an argument "down the street" away from the party.
According to the CW, she and Oliveros had been talking about
divorce "a lot" in the weeks leading up to the party. She
admitted telling the police that one of the things she and
Oliveros argued about that night was her leaving Oliveros and
getting a divorce because he had changed.

The CW testified that Dale "Josh" Tubon (Josh) also
attended the party and that Josh was there when the CW and
Oliveros were arguing. Josh and Oliveros had been best friends
for a long time. After the argument, the CW returned to the
party and waited, while Oliveros remained on the street with
Josh. After Oliveros left the party, the CW and their two
children left the party with Keiko Tubon (Keiko), Josh's wife,
and went to the Tubons' house. The CW explained that she left
the party with Keiko, who was the CW's good friend, because the
CW "didn't wanna sleep at home with [Oliveros]" because if he was
angry she "didn't wanna have to argue with him or deal with
anything else."

The CW testified that Keiko told her that Oliveros said
he was going to kill the CW. The CW also testified that Josh had
told her that Oliveros said he was going to kill her because she
"was the problem in the relationship." The CW stated that she
did not know if Oliveros was serious when he made the threat
"because he was angry" and "when you're angry you do -- a lot of
dumb things." The CW acknowledged that while at the Tubons' home
she was concerned about what Oliveros might be doing and hoped
that he did not come over that night while he was still angry.

The CW testified that two weeks prior to the June 30,
2007, party, she observed Oliveros in possession of a gun. The
CW initially testified that the gun was not a real gun, but an
Airsoft gun, which was also referred to as an "air gun" during
trial, However, she later testified that she did not know if the
gun was a real gun or an Airsoft gun. The CW stated that when

she had observed Oliveros in possession of the gun and at the

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time of the party, she did not know whether the gun was real or
an Airsoft gun. On the night of the party and the following
morning, the CW's previous observation of Oliveros in possession
of a "gun" was "a concern."

When the CW got to the Tubons' house, one of her
friends called the police. The police arrived around 2:OO a.m.
on July 1, 2007, and the CW made a written statement. The CW
admitted that in her statement, she wrote that on the night of
the party, she was "talking about leaving [Oliveros] and getting
a divorce because he's changed." She further acknowledged
writing that she went to the Tubons' house to get away from
Oliveros for her safety.

The CW testified that she and Oliveros were still
married, but no longer lived together. She has had time to
forgive Oliveros and did not want to be testifying at his trial.

Josh testified that he was a mutual friend of Oliveros
and the CW. On the evening of June 30, 2007, Josh observed
Oliveros and the CW arguing, and Josh separated them. Oliveros
was mad. After Josh separated the couple, the CW returned to the
party while Oliveros remained outside with Josh. Oliveros told
Josh that Oliveros wanted to kill the CW and that "he was gonna
kill [the CW] if she tried to leave him." To help him "do that,"
Oliveros asked Josh to "[w]atch the kids." Oliveros further
stated that "he was gonna go home to get something." Josh
returned to the party and told the CW about Oliveros's "threat."

Josh admitted on direct examination by the State that
he was concerned for the CW's safety on the night of the party.
On cross-examination, however, Josh stated that he did not take
Oliveros seriously and that Oliveros was angry and just "lettin'
out his frustrations." On re-direct examination, Josh admitted
that he took Oliveros's threat "a little serious" for the CW and
their kids, and that he made a statement to the police because
"anything can happen," and "when people are mad they do crazy
stuff."

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Josh's mother, Melissa Tubon (Melissa), testified that
at the time of the charged incident, she was living with Josh and
Keiko. Melissa has known Oliveros since he was in grade school
and he calls her aunty. Melissa testified that on July 1, 2007,
the night after the charged incident, at around 11:3O p.m., she
awoke to see Oliveros standing at the foot of her bed, asking for
the whereabouts of his wife and kids. Melissa stated that at
that point, Oliveros was not "welcome" in the house, Oliveros
immediately proceeded upstairs to search the bedrooms for the CW.
When Oliveros located the CW in one of the bedrooms, he entered
and closed the door. Melissa heard Oliveros ask the CW why she
was not answering or returning his phone calls. The couple was
"hollering" at each other so Melissa called 911.

Oliveros did not testify. The defense contended that
Oliveros was simply venting to his best friend and that the
alleged threat was not a "true threat" because it was conditional
and premised on the CW's attempting to leave Oliveros, an event
which may or may not occur in the future.

DISCUSSION
I.

Oliveros argues that the family court erred in
permitting the State to introduce evidence regarding Oliveros's
alleged possession of a gun two weeks prior to the date of the
charged incident, because that evidence was irrelevant and
inadmissible. "Evidentiary rulings are reviewed for abuse of
discretion, unless application of the rule admits of only one
correct result, in which case review is under the right/wrong
Standard." State V. LOa, 83 Hawai‘i 335, 348, 926 P.Zd 1258,
1271 (1996). (citations and block quote format omitted).

A.

Prior to the commencement of trial, Oliveros filed a
motion in limine seeking to preclude "[r]eferences to [his]
alleged possession of a gun two weeks prior to the date in
question." At the pretrial hearing on motions in limine, the DPA

explained to the family court that the State intended to

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introduce evidence of two different guns: l) an "air" gun, which
was located in Oliveros's truck when he was arrested; and 2) a

“real unregistered" gun, which the CW saw in Oliveros's
possession two weeks prior to the charged incident. The CW
apparently informed the police in her written statement that she
saw Oliveros with a gun two weeks before alleged terroristic
threat and that the gun was not Oliveros's gun and was not
registered to him.Y Defense counsel argued that any reference
to either gun was prejudicial and irrelevant.

The family court ruled that the State would be allowed
to admit evidence of the two guns, explaining that the existence
of a gun would be relevant to the CW's state of mind as well as
Oliveros's intent to carry out the alleged threat.

The CW's testimony about the existence of the "real"
gun at trial was confusing. On direct examination by the State,
the CW testified that two weeks prior to the June 30, 2007,
incident, she saw Oliveros in possession of a gun that was "[n]ot
a real gun[,]" but an "Airsoft gun." She said that at the time
of her observation and the June 30, 2007, incident, she did not
know if the gun was real or not.

d On cross-examination, the CW stated that she, Oliveros,
and their friends had air guns that they exchanged with each
other. She allowed her five-year-old child play with air guns.
The CW testified that the gun she saw in Oliveros's possession
two weeks before the June 30, 2007, incident, which she had never
previously seen, could have been an air gun.

On redirect examination, the CW first denied seeing
Oliveros with a gun that was not an air gun two weeks before June
30, 2007. Upon further examination, the CW testified: "I don't
know if [the gun] was an Airsoft gun or a real gun. 1 know it
was a gun that was in the house." The CW further testified that

between June 30, 2007, and the time of trial, she had "changed

3/ The CW's written statement to the police was not made part of the
record.

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her mind" regarding whether she believed the gun she saw was a
real gun.
B.

Testimony regarding Oliveros's possession of a gun two
weeks prior to the incident, and the CW's knowledge of that
possession, was relevant to demonstrating the context and
circumstances in which the threat was made. lt was also relevant
to showing that the threat constituted a "true threat," which is
required for a terroristic threatening prosecution. §eg State v.
Chung, 75 HaW. 398, 416-l7, 862 P.2d lO63, l072-73 (l993).

Oliveros told Josh that he "was gonna kill" the CW, and
Oliveros asked Josh to "watch the kids" because "he was gonna go
home to get something." When Oliveros's threats were
communicated to the CW on the night of the party, the CW was
concerned by her previous observation of Oliveros in possession
of a "gun" two weeks prior to the party. The evidence regarding
the CW's observation of Oliveros in possession of a gun two weeks
prior to the charged incident was relevant to showing the context
in which the threat was made, including Oliveros's statement that
"he was gonna go home to get something." lt was also probative
of Oliveros's ability to carry out the threat and the CW's
knowledge regarding that ability. The gun testimony was relevant
to whether the threat constituted a "true threat" by conveying a
"gravity of purpose and imminent prospect of execution." lQ; at
416-17, 862 P.2d at 1073. We conclude that the family court did
not err in admitting into evidence the CW's testimony regarding
Oliveros's possession of a gun.

II.

Oliveros contends that the family court erred in
denying his motion for a mistrial based on the DPA's misconduct
in asking the CW if she saw Oliveros with a gun the CW believed
was unregistered. We conclude that any misconduct by the DPA was

harmless beyond a reasonable doubt.

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A.

At the pre-trial hearing on the motions in limine, the
DPA represented that she would not attempt to elicit evidence
that the gun possessed by Oliveros was "unregistered" or that any
other laws or regulations surrounding the gun were violated.

The DPA evidently expected the CW to say that the CW
saw Oliveros with a real gun two weeks before the charged
incident. This is because the CW had apparently informed the
police that the CW had seen Oliveros with a gun that did not
belong to Oliveros and was not registered to him. As noted,
however, the CW testified on direct examination that the gun she
had seen Oliveros with was not a real gun but an Airsoft or air
gun. On cross-examination, the CW testified that she, Oliveros,
and their friends all played with air guns, which they exchanged
with each other, and the CW suggested that the unfamiliar gun she
had seen Oliveros with may have been an air gun belonging to one
of their friends.

On redirect examination, the DPA tried to impeach the
CW with a statement the CW had apparently made to the police that
the gun the CW had observed in Oliveros's possession was not
registered to Oliveros. The inference the DPA was evidently
attempting to draw was that because an Airsoft or air gun would
not need to be registered, the CW's reference to the gun as not

being registered meant she was talking about a real gun. The

'family court held a bench conference during which the DPA's plan

to impeach the CW was discussed. Unfortunately, the
transcription of the bench conference is garbled, with numerous
"unintelligible" portions. lt appears that the question of
whether the DPA could refer to the unregistered status of the gun
was raised during the bench conference, but it is not clear
exactly what the circuit court ruled. The family court did

state:

Motions in limine . . . is [sic] not carved in stone.
Circumstances can make it so that (unintelligible)
direct things which were not at issue and relevant
(unintelligible) become. But 1 think you -- the way

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to get around it is just did -- did you ever see a gun
which you believed not to be an air gun.

What you really wanna know is did you find a gun
which wasn't an air gun but it was another kind of
gun.

You can ask that.

Following the bench conference, the following

questioning took place by the DPA:

Q. [CW], two weeks before June 30th, 2007, did you
see the defendant with a gun that was not an air gun?

A. NO.

A. 1 don't know what it was. A -- what type of gun
it was that's why.

Q. Okay. You don't know what type of real gun or
air gun it was?

A. 1 don't know if it was an Airsoft gun or a real
gun. 1 know it was a gun that was in the house.

[DPA]: May 1 proceed, Your Honor.

THE COURT: Depends on the question you’re gonna
ask.

Q. (By [DPA]) 1n your -- isn't it true that you saw
the defendant with a gun that you believed was not
registered?

Before the CW could answer the question, defense counsel
objected. The family court sustained the objection and struck
the question,

After the State concluded its redirect examination of
the CW, Oliveros moved for a mistrial based on the DPA's alleged
violation of her promise not to attempt to elicit evidence of the
unregistered status of the gun. The family court denied the

motion for mistrial.

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B.

"Prosecutorial misconduct warrants a new trial or the
setting aside of a guilty verdict only where the actions of the
prosecutor have caused prejudice to the defendant's right to a
fair trial." State v. Maddox, 116 HawaiH_445, 461, 173 P.3d
592, 608 (App. 2007) (citation and internal quotation marks
omitted). "1n order to determine whether the alleged
prosecutorial misconduct reached the level of reversible error,
the appellate courts consider the nature of the alleged
misconduct, the promptness or lack of a curative instruction, and
the strength or weakness of the evidence against the defendant."
;d; (citation, internal quotation marks, and brackets omitted).

Although the DPA agreed pre-trial not to elicit
evidence regarding the unregistered status of the gun, the DPA
asked the CW whether she observed Oliveros with a gun the CW
believed was unregistered. while the subject of the DPA's
questioning about the gun was apparently broached again with the
family court during the trial, it does not appear that the family
court specifically authorized the DPA to inquire about the
unregistered status of the gun. We conclude that the DPA should
have sought and obtained specific authorization by the family
court before forging ahead with a question that violated the pre-
trial representation the DPA made in response to Oliveros's
motion in limine.F

The DPA's question, however, prompted a defense
objection that was sustained by the family court. 1n addition,
the DPA's question did not assert that the gun was unregistered
but only asked the CW if she had seen Oliveros with a gun the CW
"believed" was not registered. After sustaining Oliveros's
objection, the family court immediately instructed the jury that
the "question is stricken" and later instructed the jury that it

"must disregard entirely any matter which the court has ordered

i/ We do not decide whether it would have been error for the family
court to authorize the DPA to question the CW about the CW's belief regarding
the unregistered status of the gun, if the DPA has sought prior authorization.

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stricken" and that "[s]tatements or remarks made by counsel are
not evidence." 'We presume the jury followed these instructions.
State v. Konohia, 106 HawaiH.517, 528, 107 P.3d 1190, 1201 (App.
2005). Under these circumstances, we conclude that any
misconduct by the DPA was harmless beyond a reasonable doubt and
did not contribute to Oliveros's conviction.
III.

Oliveros argues that the family court erred in
permitting Melissa to testify that 24 hours after the charged
incident, Oliveros entered her house uninvited and looking for
the CW. we disagree.

A.

Prior to the State's calling Melissa as a witness,
defense counsel orally requested that the State make an offer of
proof regarding Melissa's testimony. According to the DPA,
Melissa would testify that she was present when Oliveros, without
being invited, entered the Tubons' house at 11:OO p.m. on the
evening following the alleged threat to search for the CW. Based
on the DPA's offer of proof, the family court ruled that as long
as "there's no emphasis on any potential for the illegality of
[Oliveros‘s] presence at the [Tubons'] residence," Melissa's
proffered testimony was admissible.

B.

Melissa's testimony was relevant to show the context of
Oliveros's alleged threat and whether it constituted a "true
threat," specifically, whether the threat conveyed "an imminent
prospect of execution." §e§ Chung, 75 Haw. at 416, 862 P.2d at
1073. Melissa's testimony established Oliveros's ability to
track down the CW within twenty-four hours at another person's
home. Melissa's testimony also served to illustrate the
emotional and contentious nature of the relationship between the
CW and Oliveros. When Oliveros located the CW, he confronted her
and they began "hollering" at each other, which prompted Melissa
to call 911. 1n compliance with the family court's in limine
ruling, the DPA did not emphasize the potential illegal nature of

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Oliveros's presence in the house, but only elicited testimony
that Melissa's called 911 after she heard Oliveros and the Cw
arguing.W we conclude that the family court did not err in
admitting Melissa's testimony.

IV.

A.

Oliveros argues that the family court committed plain
error in giving the instruction on terroristic threatening that
his counsel urged the family court to give. Oliveros proposed a
pre-amended version of the Hawafi Standard Jury 1nstructions-
Criminal (HAwJ1C) on second degree terroristic threatening,
1nstruction No. 9.32. The family court had proposed to give an
instruction based on the current amended version of HAwJ1C
1nstruction No. 9.32. However, Oliveros's counsel argued that
Oliveros's proposed instruction was the "standard given in
terroristic threatening cases" and represented to the family
court that it was the "verbatim HAwJ1C" instruction, Defense
counsel specifically argued that the "relevant attributes"
portion of the family court's proposed instruction was not needed
and would be prejudicial to the defense. Convinced by defense
counsel's arguments that Oliveros's proposed instruction was the
approved HAwJ1C instruction, the family court gave Oliveros's
proposed instruction on second degree terroristic threatening,

Oliveros contends that the family court committed plain
error in giving the terroristic threatening instruction because
the instruction did not include language that whether a threat
was a "true threat" is evaluated under an objective standard.
Oliveros further contends that the instruction given by the
family court was defective because it did not contain language
advising’the jury to consider the relevant attributes of Oliveros
and the Cw.

y Melissa testified that Oliveros was her son‘s best friend and was
generally welcome in her house, but she indicated that Oliveros was not
welcome on the night of July 1, 2007, because of the late hour and because
everyone was sleeping .

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we apply the following standard of review when

evaluating jury instructions on appeal:

when jury instructions or the omission thereof are at

issue on appeal, the standard of review is whether, when
read and considered as a whole, the instructions given are
prejudicially insufficient, erroneous, inconsistent, or
misleading. Erroneous instructions are presumptively
harmful and are a ground for reversal unless it
affirmatively appears from the record as a whole that the
error was not prejudicial. [However, e]rror is not to be
viewed in isolation and considered purely in the abstract.
1t must be examined in the light of the entire proceedings
and given the effect which the whole record shows it to be
entitled. 1n that context, the real question becomes
whether there is a reasonable possibility that error might
have contributed to conviction. 1f there is such a
reasonable possibility in a criminal case, then the error is
not harmless beyond a reasonable doubt, and the judgment of
conviction on which it may have been based must be set
aside.

State V. NiChOlS, lll HaWaiH.327, 334, l4l P.3d 974, 981 (2006)
(brackets in original) (quoting State v. Gonsalves, 108 HawaiH
289, 292-93, ll9 P.3d 597, 600-01 (2005)).

we conclude that: 1) the omission of language regarding
an objective standard did not render the instructions
prejudicially insufficient, erroneous, inconsistent, or
misleading; and 2) the omission of language regarding "relevant
attributes" was harmless beyond a reasonable doubt.

B.

During the settlement of jury instructions, defense
counsel objected to the family court's proposed instruction on
the charged offense of second degree terroristic threatening,
The family court's proposed instruction, which was in substance
the same as the current HAwJ1C 1nstruction No. 9.32 (Adopted

March 15, 2007), read as follows:

The Defendant, GERALD OL1VEROS, is charged with the
offense of Terroristic Threatening in the Second Degree.

A person commits the offense of Terroristic
Threatening in the Second Degree if, in reckless disregard
of the risk of terrorizing another person, he/she threatens,
by word or conduct, to cause bodily injury to another
person.

There are two material elements of the offense of

Terroristic Threatening in the Second Degree, each of which
the prosecution must prove beyond a reasonable doubt.

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These two elements are:

1. That, on or about June 30, 2007, in the City and
County of Honolulu, 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 prosecution also must probe [sic] beyond a
reasonable doubt that the threat was objectively capable of
causing 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 made, and:

(1) the threat on its face and in the circumstances in
which it was made must have been so clear,
unequivocal, immediate, and specific as to the person
threatened, that the threat communicated a seriousness
of purpose and an imminent likelihood of being carried
out; or

(2) the Defendant possessed the apparent ability to
carry out the threat, such that the threat was
reasonably likely to cause fear of bodily injury in
[the CW].

The relevant attributes of the Defendant and [the CW] must
be taken into consideration in determining whether the threat,
under the circumstances, was objectively capable of causing fear
of bodily injury in a reasonable person.

Defense counsel objected to the family court's proposed
instruction. Defense counsel argued that "according to case law

especially the last part where it says the relevant

attributes, 1 can't find where that is based on any of the case
laws." Defense counsel erroneously advised the family court that
"according to case law," the family court's proposed instruction
had been "overturned." Defense counsel further stated that
defense counsel had "never seen any of this other stuff about, uh
-- the defendant possessed the apparent ability to carry out the
threat, that part, the relevant attributes of defendant in [sic]
the complaining witness." Defense counsel argued that "those
[portions of the instruction] are not needed. And it's
prejudicial really and it's really confusing to the jury."
(Emphasis added.)

Defense counsel requested that the family court instead
give Oliveros's proposed instruction. Oliveros's proposed

instruction was based on the pre-amended version of HAwJ1C

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1nstruction No. 9.32.W The State objected to the Oliveros's
proposed instruction and requested that the family court's
proposed instruction be given. Defense counsel, however,
represented to the family court that Oliveros's proposed
instruction was the "verbatim HAwJ1C" instruction. Convinced by
defense counsel's arguments that Oliveros's proposed instruction
was the Vapproved" HAwJ1C instruction, the family court granted
Oliveros's request, over the State's objection, and gave the jury

Oliveros's proposed instruction as follows:

The defendant[,] Gerald Oliveros[,] is charged with
the offense of terroristic threatening in the second degree.

A person commits the offense of terroristic
threatening in the second degree if[,] in reckless disregard
of the risk of terrorizing another person[,] he threatens,
by word or conduct[,] to cause bodily injury to another
person.

There are two material elements of the offense of
terroristic threatening in the second degree, each of which
the prosecution must prove beyond a reasonable doubt.

These two elements are:

1. That[,] on or about June 30, 2007, in the City and
County of Honolulu, 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.

C.

Through the conduct of his counsel, Oliveros clearly
invited the alleged errors of which he now complains. However,
the Hawafi Supreme Court has held that "it is ultimately the
trial court that is responsible for ensuring that the jury is
properly instructed." Nichols, 111 Hawafi at 335, 141 P.3d at
982. 1n Nichols, the supreme court stated:

y HAWJ1C 1nstruction No. 9.32 was revised on March 15, 2007.
Settlement of jury instructions took place on December 5, 2007.

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This court has acknowledged that, as a general rule,
invited errors are not reversible. However, we have
also noted that the general rule is inapplicable where
an invited error is so prejudicial as to be plain
error or to constitute ineffective assistance of
counsel, 1n other words, we are cycled back to our
original inquiry.

1d4 at 339 n.7, 141 P.3d at 986 n.7 (citations omitted). Thus,
we turn to examine Oliveros's claim that the terroristic
threatening instruction given to the jury was erroneous.

D.

The deficiencies claimed by Oliveros in the terroristic
threatening instruction given by the family court relate to the
"true threat" requirement. That requirement has been judicially
imposed on offenses criminalizing threatening communications to
ensure that prosecutions based on a defendant's communications do
not violate the First Amendment right of free speech.

in chung, 75 Haw. 398, 862 P.2d 1063, the HawaiH_
Supreme Court addressed the question presented in United States
v. Kelner, 534 F.2d 1020 (2d Cir. 1976), of "whether an
unequivocal threat which has not ripened by any overt act into
conduct in the nature of an attempt is nevertheless punishable
under the First Amendment, even though it may additionally

involve elements of expression." Chu g, 75 Haw. at 415, 862 P.2d
at 1072 (quoting Kelner, 534 F.2d at 1026). To avoid infringing

on First Amendment protections, the Kelner court narrowed the
definition of the term "threat," as used in an offense
prohibiting the transmission of a threatening communication, to
exclude statements, which taken in context, are not "true
threats." Kelner, 534 P.2d at 1027.U in chung, the HawaFi
Supreme Court quoted extensively from the Kelner court's

explanation for and formulation of the true threat requirement:

As a part of the Government's constitutional responsibility
to insure domestic tranquility, it is properly concerned --

F 1n Kelner, the defendant was prosecuted for violating 18 U.S.C.
§ 875(c), which prohibits, among other things, the transmission in interstate
commerce of a communication containing a threat to injure the person of
another. Kelner, 534 F.2d at 1020.

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in an era of ever-increasing acts of violence and terrorism,
coupled with . . . opportunities to carry out threats of
injury -- with prohibiting as criminal conduct specific
threats of physical injury to others

[T]he word "threat" . . . exclude[s] statements which are,
when taken in context, not "true threats" because they are
conditional and made in jest [citing watts v. United States,
.394 U.S. 705, 708, 89 S.Ct. l399, 1401, 22 L.Ed. 2d 664
(1969)]. . . . [T]hreats punishable consistently with the
First Amendment [are] only those which according to their
language and context conveyed a gravity of purpose and
likelihood of execution so as to constitute speech beyond
the pale of protected "vehement, caustic [and] unpleasantly
sharp attacks . . . ." [Citation omitted.]

[P]roof of a "true threat" . . . focus[es] on threats
which are so unambiguous and have such immediacy that they
convincingly express an intention of being carried
out.

. So long as the threat on its face and in the
circumstances in which it is made is so unequivocal,
unconditional, immediate and specific as to the person

threatened, as to convey a gravity of purpose and imminent

prospect of execution, the statute may properly be applied.

Chung, 75 Haw; at 416-17, 862 P.2d at 1072-72 (brackets and
ellipsis points in original; emphasis in original omitted; and
emphasis added) (quoting Kelner, 534 F.2d at 1026-27).

1n State v. Valdivia, 95 Hawafi 465, 24 P.3d 661
(2001), the Hawafi Supreme Court explained its holding in Chung
as follows:

. . Chung 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. 1n
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.

ValdiVia, 95 HaWafi at 476, 24 P.3d at 672 (200l).
1n Valdivia, the trial court instructed the jury that
"to constitute a threat punishable by law, the threat on its face

and in the circumstances in which it is made must be so

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unequivocal, unconditional, immediate, and specific as to the
person threatened as to convey a gravity of purpose." 1d;, at
478, 24 P.3d at 674 (brackets omitted). The trial court's
instruction tracked the language of Chung, except that the final
phrase in the Chung articulation of the true threat requirement,
namely, "and imminent prospect of execution," was omitted. 1d;
The supreme court held that the omission of this phrase rendered
the instruction deficient. 1d; The court stated that "[a]bsent
some appropriate language regarding 'imminency,' we cannot say
that the jury was sufficiently instructed with respect to
differentiating a 'true threat' from constitutionally protected
free speech." 1dL (citation omitted).

The Valdivia court also held that the trial court's
terroristic threatening instruction was deficient because it
failed to include language directing the jury to consider the
relevant attributes of the defendant and the complainant.
Valdivia was charged with terroristic threatening based on his
threatening a police officer while Valdivia was handcuffed. 1d;
at 471, 24 P.3d at 667. The trial court had refused Valdivia's
proposed instruction that "where a threat is directed at a police
officer, you may consider that police officers are trained to a
professional standard of behavior that ordinary citizens might
not expected to equal." ;dL at 479, 24 P.3d at 479 (brackets

omitted). The supreme court concluded:

the jury in the present matter should have been instructed
that it could consider relevant attributes of both the
defendant and the subject of the allegedly threatening
utterance in determining whether the subject's fear of
bodily injury, as allegedly induced by the defendant's
threatening utterance, was objectively reasonable under the
circumstances in which the threat was uttered.

Id. at 479, 24 P.3d at 675.
E.

Oliveros contends that the terroristic threatening

instruction given by the family court was deficient because it

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failed to instruct the jury to evaluate whether the threat was a
"true threat" under an objective standard. Quoting language from
Valdivia, 95 HawaiH.at 477, 24 P.3d at 672, Oliveros argues that
the family court should have instructed the jury 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."

we conclude that the objective standard Oliveros argues
was erroneously omitted from the instruction was effectively
subsumed within and covered by the instruction given by the
family court. The family court, based on Chung, instructed the
jury that: "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."

1n Valdivia, the supreme court read the true threat
language in Chung as imposing an objective standard.

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. 1n
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.

1d. at 476, 24 P.3d at 672, Neither Valdivia nor any other
HawaiH.Supreme Court case has overruled Chu g. we conclude that
a threat that satisfies the Chung requirements for a true threat

would also satisfy the objective standard set forth in

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Valdivia.W Thus, the family court's use of language taken
directly from Chung to explain the "true threat" requirement did
not render the instruction prejudicially insufficient, erroneous,
inconsistent, or misleading.

F.

Oliveros argues that the terroristic threatening
instruction given by the family court was defective because it
did not contain language advising the jury to consider the
relevant attributes of Oliveros and the Cw. Oliveros did not
specifically raise this claim in his points of error, and we
could therefore reject this claim for noncompliance with HRAP
Rule 28 (2008). §§e HRAP Rule 28(b)(4) ("Points not presented in
accordance with this section [regarding points of error] will be
disregarded . . . .")

1n any event, we conclude that any error in failing to
instruct the jury on relevant attributes was harmless beyond a
reasonable doubt. The record shows that Oliveros's counsel
believed that the giving of a relative attributes instruction
would be prejudicial to Oliveros's defense. That is why
0liveros's counsel asked for an instruction that omitted the

relevant attributes language. Obviously, Oliveros was not

y 1n the context of discussing the "imminency" requirement for a true
threat, the Valdivia court noted that one means of satisfying the objective
standard for a true threat would be to satisfy the Chung requirements:

we agree with the California Supreme Court that the
"imminency" required by Kelner, 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." §§g Chung, 75 Haw. at 416-17, 862 P.2d at
1073; Kelner, 534 F.Zd at 1026-27.

Valdivia, 95 HawaFi at 477, 24 P.3d at 673 (brackets and certain citations
omitted) (emphasis added).

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relying on the relative attributes of the parties to argue that
the alleged threat was not a true threat.W we conclude that the
omission of a relevant attributes instruction that would have
directed the jury to consider a factor that Oliveros himself felt
was harmful to his case and was not a basis for his defense was
harmless beyond a reasonable doubt.
V.

we reject Oliveros's claim that there was insufficient
evidence to support his conviction. when viewed in the light
most favorable to the prosecution, State v. Meyers, 112 Hawafi
278, 286, 145 P.3d 821, 829 (App. 2006), there was sufficient
evidence to establish that Oliveros's threat was a true threat
which conveyed a "gravity of purpose and imminent prospect of
execution," Chung, 75 Haw. at 416-17, 862 P.2d at 1073, and that
Oliveros recklessly disregarded the risk that his threat would
terrorize the Cw.

The evidence showed that in the weeks leading up to the
party, Oliveros and the Cw had been discussing getting a divorce.
At the party, the Cw and Oliveros argued about her leaving him
and getting a divorce because he had changed. Following their
argument, Oliveros told Josh that Oliveros was going to kill the
Cw "if she tried to leave him." Oliveros asked Josh to "[w]atch
the kids" and said that he was going to go home to get something.
The Cw had seen Oliveros with a gun, which may have been a real
gun, in their home about two weeks prior to the charged incident.

Josh, Oliveros's best friend, was sufficiently concerned about

§ 1n closing argument, Oliveros argued that he was not guilty because
he was merely "venting" in a private conversation with Josh, his long-time
best friend, when he made the alleged threat. This argument focuses on the
likelihood that Josh would communicate the threat to the CW and thus whether
Oliveros recklessly terrorized the Cw by making the threatening statement to
Josh. 1n addition, Oliveros argued that the alleged threat -- that Oliveros
would kill his wife if she tried to leave him -- was not a true threat because
it was phrased in language that was conditional and not immediate. Neither of
Oliveros's arguments relate to the relative attributes of Oliveros and the Cw.

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the risk posed by Oliveros's threat that he warned the Cw. The
Cw, in turn, took the threat seriously enough that she made a
statement to the police that evening and she stayed at the
Tubons' house to avoid Oliveros. The evening after Oliveros
threatened to kill the Cw, he appeared at the Tubons' house late
at night looking for the Cw. when Oliveros located the Cw, they
got into a heated argument and the police were called. Taking
into account all the circumstances surrounding the threat, the
jury could have reasonably concluded, based on substantial
evidence presented at trial, that Oliveros was guilty of the
charged offense.

we are unpersuaded by Oliveros's contention that
because the threat of harm was stated as if it were conditioned
on a future occurrence, namely, the CW's trying to leave
Oliveros, that it was not a true threat. Simply making a threat
in conditional language does not preclude it from being a true
threat. See People v. Brooks, 31 Ca1. Rptr. 2d 283, 285-88 (Cal.
Ct. App. 1994). The test is whether the threat on its face and
in the circumstances in which it is made is "so unequivocal,
unconditional, immediate, and specific as to the person
threatened, as to convey a gravity of purpose and imminent
prospect of execution." Chung, 75 Haw. at 416-17, 862 P.2d at
1073. Given the context in which the threat was made, we
conclude that a reasonable jury could conclude that, despite the
conditional language, the threat conveyed a "gravity of purpose
and imminent prospect of execution." 1dp 1n any event, prior to
the threat, the Cw and Oliveros argued about the Cw's leaving
Oliveros and getting a divorce. Therefore, the jury could have
inferred that the stated condition, "if she tried to leave

[Oliveros]," had been satisfied.

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CONCLUS ION
we affirm the Judgment entered by the family court on
December 6, 2007.

DATED: Honolulu, Hawafi, August 31, 2010.

Craig w. Jerome

(Taryn R. Tomasa, on the briefs)
Deputy Public Defenders Chief Judge
for Defendant-Appellant

Stephen K. Tsushima

Deputy Prosecuting Attorney
City and County of Honolulu
for Plaintiff-Appellee

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