In other words, the State was required to prove, under the circumstances presented: Minor's rant on the couch about what he was going to do to Kuewa and other actions (the conduct element); bore the attributes of a "true threat" (the attendant circumstances element); and Minor recklessly disregarded the risk that his remarks would terrorize Kuewa (the requisite state of mind). See State v. Valdivia, 95 Hawai‘i 465, 474, 24 P.3d 661, 670 (2001) (citations omitted); see also State v. Chung, 75 Haw. 398, 410–11, 862 P.2d 1063, 1070 (1993). These prior Hawai‘i cases are helpful in analyzing Minor's argument.
Count 3: First degree terroristic threatening Valdivia argues that the prosecution did not adduce substantial evidence from which a person of reasonable caution could conclude that his remark to Officer Kawelo, "I'm gonna kill you and your police uniform," was so "unequivocal, unconditional, immediate[,] and specific as to the person threatened, as to convey a gravity of purpose and imminent prospect of execution," see State v. Chung, 75 Haw. 398, 862 P.2d 1063 (1993), and, therefore, that his remark was not a "true threat" but, rather, constitutionally protected speech. Valdivia posits that his remark was equivocal, conditional, and not "immediate" because it was "made . . . after being . . . sprayed [with pepper spray], placed under arrest, handcuffed[,] and transported to the emergency room secured by a seat bar and guarded by two armed police officers" and, moreover, because it was not "accompanied by any sort of threatening movements or attempts to free himself."
In his application, Martins's sole contention is as follows: "The ICA gravely erred in holding that the [circuit] court did not plainly err in failing to instruct the jury on the definition of a `true threat' because the evidence of terroristic threatening was Martins' conduct of `discharging his shotgun' and not his `remarks.'" On November 22, 2004, we granted certiorari in order to clarify that, pursuant to State v. Valdivia, 95 Hawai'i 465, 24 P.3d 661 (2001), and State v. Chung, 75 Haw. 398, 862 P.2d 1063 (1993), the necessity of a jury instruction defining a "true threat" applies to all terroristic threatening prosecutions regardless of whether the charge is based exclusively upon the defendant's verbal statements, the defendant's physical conduct, or some combination of the two. See infra section III. Insofar as the circuit court plainly erred in failing to instruct the jury as to the definition of a "true threat," the ICA gravely erred in affirming the March 1, 2002 judgment of the circuit court.
"HRS § 701-114[(1)(a) and (c) (1985)] requires proof beyond a reasonable doubt of each element of the offense, as well as `[t]he state of mind required to establish each element of the offense.'" State v. Chung, ___ Haw. ___, ___, 862 P.2d 1063, 1070 (1993) (quoting State v. Pinero, 75 Haw. 282, 300, 859 P.2d 1369, 1378 (1993) (brackets in original). Moreover, HRS § 702-204 (1985) provides in relevant part that "a person is not guilty of an offense unless he [or she] acted intentionally, knowingly, recklessly, or negligently, as the law specifies, with respect to each element of the offense."
Indeed, this court has explained that “[s]imply making a threat in conditional language does not preclude it from being a true threat. 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 .’ “ Oliveros, 2010 WL 3433557 at *12 (citation omitted) (quoting State v. Chung, 75 Haw. 398, 416–17, 862 P.3d 1063, 1073 (1993) ). Cf. Chung, 75 Haw. at 416, 862 P.3d at 1072 (“[T]he word ‘threat’ ... exclude[s] statements which are, when taken in context, not ‘true threats' because they are conditional and made in jest[.]” (emphasis added) (quoting U.S. v.. Kelner, 534 P.2d 1020, 1026 (2d Cir.1976)).
Id. The requirement is satisfied if the speaker communicates the statement to the object of the purported threat or to a third party. See, e.g., United States v. Crews, 781 F.2d 826, 831-32 (10th Cir. 1986) (affirming conviction under 18 U.S.C. § 871 where a defendant made a statement to a third party that threatened to kill the President); Hawaii v. Chung, 75 Haw. 398, 862 P.2d 1063, 1071-73 (1993) (recognizing that a defendant's statements to other teachers that he would kill the principal were true threats entitled to no First Amendment protection). Requiring less than an intent to communicate the purported threat would run afoul of the notion that an individual's most protected right is to be free from governmental interference in the sanctity of his home and in the sanctity of his own personal thoughts.
The ICA reasoned that "[t]he crime of Terroristic Threatening does not require proof that the victim was actually placed in fear by the statements of the defendant." Id. (citing State v. Chung , 75 Haw. 398, 413, 862 P.2d 1063, 1071 (1993) (quoting State v. Nakachi , 7 Haw. App. 28, 32, 742 P.2d 388, 391 (1987) ) ("Actual terrorization is not a material element of the offense of terroristic threatening.")). The State similarly contended that the prosecutor's reference in closing argument to Kearney's 252 Statement that she was afraid was harmless because it was irrelevant to establishing the material elements of terroristic threatening.
Finally, HRS § 702-207 [(1993)] provides that "[when] the definition of an offense specifies the state of mind sufficient for the commission of that offense, without distinguishing among the elements thereof, the specified state of mind shall apply to all elements of the offense, unless a contrary purpose plainly appears. [ State v. Chung, 75 Haw. 398, 411, 862 P.2d 1063, 1070 (1993).] . . . In addition, "[pursuant to HRS § 702-205 [(1993)], the requisite state of mind applies to such conduct, attendant circumstances, and results of conduct as are specified by the definition of the offense."
1. General principles We noted in State v. Chung, 75 Haw. 398, 411, 862 P.2d 1063, 1070 (1993), that: "HRS § 701-114(1)(a) and (b) [(1993)] requires proof beyond a reasonable doubt of each element of the offense, as well as 'the state of mind required to establish each element of the offense.'"
In order to answer the threshold question thoroughly, it is necessary to understand the interrelationship among a number of key provisions of the Hawaii Penal Code, which establish a fundamental paradigm critical to a complete understanding of the substantive offenses set out in the code. In this connection, we noted in State v. Chung, 75 Haw. 398, 411, 862 P.2d 1063, 1070 (1993), that: "HRS § 701-114 [(1)(a) and (b) (1985)] requires proof beyond a reasonable doubt of each element of the offense, as well as `[the] state of mind required to establish each element of the offense.'"