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§707-716 - Terroristic threatening in the first degree.

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     §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 arising out of the performance of the public servant's official duties.  For the purposes of this paragraph, "public servant" includes but is not limited to an educational worker.  "Educational worker" has the same meaning as defined in section 707-711;     (d)   Against any emergency medical services personnel who is engaged in the performance of duty.  For purposes of this paragraph, "emergency medical services personnel" shall have the same meaning as in section 321-222; or     (e)   With the use of a dangerous instrument.      (2)  Terroristic threatening in the first degree is a class C felony. [L 1979, c 184, pt of §1(2); am L 1989, c 131, §1; gen ch 1992; am L 2006, c 230, §31; am L 2007, c 79, §2] Case Notes   A U.S. military police officer is not a "public servant" for purposes of this section.  552 F. Supp. 2d 1108.   For purposes of establishing subject matter jurisdiction, defendant who placed threatening telephone call from California to Hawaii engaged in conduct occurring within Hawaii.  72 H. 591, 825 P.2d 1062.   Court erred in concluding section requires threat to be communicated directly or indirectly to person and that communication of threat to third party was insufficient.  75 H. 398, 862 P.2d 1063.   Section not unconstitutional where threats sufficiently unequivocal, unconditional, immediate, and specific as to convey a gravity of purpose and imminent prospect of execution.  75 H. 398, 862 P.2d 1063.   Double jeopardy clause of Hawaii constitution did not bar terroristic threatening prosecution of defendant who had been found guilty of abuse under §709-906.  75 H. 446, 865 P.2d 150.   Terroristic threatening not a lesser included offense of intimidating a witness within the meaning of §701-109(4)(a); multiple conviction of terroristic threatening and intimidating a witness not barred by §701-109(4)(c).  75 H. 517, 865 P.2d 157.   Where no evidence was presented that any "dangerous instrument" other than a firearm was involved, which established an element of the underlying felony under this section, §134-6(a) did not apply.  83 H. 229, 925 P.2d 797.   Defendant's first degree terroristic threatening conviction remanded for new trial where instructions did not sufficiently inform jury that, to constitute a "true threat", defendant's threatening utterance 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.  95 H. 465, 24 P.3d 661.   Defendant's first degree terroristic threatening conviction remanded for new trial where trial court failed to instruct jury 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 defendant's threatening utterance, was objectively reasonable under the circumstances in which the threat was uttered.  95 H. 465, 24 P.3d 661.   Neither the free speech clause of the U.S. Constitution nor that of the Hawaii constitution impose a temporal "immediacy" requirement that must be met before words become subject to criminal prosecution as "true threats".  95 H. 465, 24 P.3d 661.   The offense of terroristic threatening in the first degree does not require a nexus between the alleged threat and the threatened person's status as a public servant where the threatened person is a government officer or employee; thus, trial court did not err in failing to give a nexus instruction.  111 H. 327, 141 P.3d 974.   Trial court's failure to instruct the jury that it could consider the 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, was not harmless beyond a reasonable doubt because there was a reasonable possibility that the error contributed to defendant's conviction.  111 H. 327, 141 P.3d 974.   Terroristic threatening in second degree can be an offense included in terroristic threatening in first degree; trial court's failure to instruct jury on the lesser included offense was not plain error, where defendant contended there was a rational basis in the record for jury to decide that, although defendant made a terroristic threat, defendant did not do so with a dangerous instrument as defined in §707-700.  10 H. App. 584, 880 P.2d 213.   Terroristic threatening charge under paragraph (1)(d) remanded for prosecutorial misconduct and where evidence of defendant's violation of furlough was not a fact of consequence to any material issue under this section.  82 H. 517 (App.), 923 P.2d 934.   One may be charged with a violation of subsection (1)(d) when a dangerous instrument is employed in connection with a threat to property as proscribed by §707-715.  88 H. 477 (App.), 967 P.2d 674.   Subsection (1)(c) was not unconstitutionally vague when applied to defendant's conduct of threatening to kill public servants because of their performance of official duties; this section gave defendant fair notice that defendant's conduct was prohibited and afforded defendant the opportunity to choose between lawful and unlawful conduct.  105 H. 261 (App.), 96 P.3d 590.   Where there were no jury instructions requiring unanimity as to the person or persons threatened, thus allowing each juror seven choices as to the persons threatened and not requiring all jurors to agree on no less than one person, trial court violated the rule requiring a unanimous jury regarding the person or persons threatened, which was necessary to prove the offense charged.  114 H. 135 (App.), 157 P.3d 574.
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  •      §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 arising out of the performance of the public servant's official duties.  For the purposes of this paragraph, "public servant" includes but is not limited to an educational worker.  "Educational worker" has the same meaning as defined in section 707-711;

        (d)   Against any emergency medical services personnel who is engaged in the performance of duty.  For purposes of this paragraph, "emergency medical services personnel" shall have the same meaning as in section 321-222; or

        (e)   With the use of a dangerous instrument.

         (2)  Terroristic threatening in the first degree is a class C felony. [L 1979, c 184, pt of §1(2); am L 1989, c 131, §1; gen ch 1992; am L 2006, c 230, §31; am L 2007, c 79, §2]

     

    Case Notes

     

      A U.S. military police officer is not a "public servant" for purposes of this section.  552 F. Supp. 2d 1108.

      For purposes of establishing subject matter jurisdiction, defendant who placed threatening telephone call from California to Hawaii engaged in conduct occurring within Hawaii.  72 H. 591, 825 P.2d 1062.

      Court erred in concluding section requires threat to be communicated directly or indirectly to person and that communication of threat to third party was insufficient.  75 H. 398, 862 P.2d 1063.

      Section not unconstitutional where threats sufficiently unequivocal, unconditional, immediate, and specific as to convey a gravity of purpose and imminent prospect of execution.  75 H. 398, 862 P.2d 1063.

      Double jeopardy clause of Hawaii constitution did not bar terroristic threatening prosecution of defendant who had been found guilty of abuse under §709-906.  75 H. 446, 865 P.2d 150.

      Terroristic threatening not a lesser included offense of intimidating a witness within the meaning of §701-109(4)(a); multiple conviction of terroristic threatening and intimidating a witness not barred by §701-109(4)(c).  75 H. 517, 865 P.2d 157.

      Where no evidence was presented that any "dangerous instrument" other than a firearm was involved, which established an element of the underlying felony under this section, §134-6(a) did not apply.  83 H. 229, 925 P.2d 797.

      Defendant's first degree terroristic threatening conviction remanded for new trial where instructions did not sufficiently inform jury that, to constitute a "true threat", defendant's threatening utterance 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.  95 H. 465, 24 P.3d 661.

      Defendant's first degree terroristic threatening conviction remanded for new trial where trial court failed to instruct jury 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 defendant's threatening utterance, was objectively reasonable under the circumstances in which the threat was uttered.  95 H. 465, 24 P.3d 661.

      Neither the free speech clause of the U.S. Constitution nor that of the Hawaii constitution impose a temporal "immediacy" requirement that must be met before words become subject to criminal prosecution as "true threats".  95 H. 465, 24 P.3d 661.

      The offense of terroristic threatening in the first degree does not require a nexus between the alleged threat and the threatened person's status as a public servant where the threatened person is a government officer or employee; thus, trial court did not err in failing to give a nexus instruction.  111 H. 327, 141 P.3d 974.

      Trial court's failure to instruct the jury that it could consider the 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, was not harmless beyond a reasonable doubt because there was a reasonable possibility that the error contributed to defendant's conviction.  111 H. 327, 141 P.3d 974.

      Terroristic threatening in second degree can be an offense included in terroristic threatening in first degree; trial court's failure to instruct jury on the lesser included offense was not plain error, where defendant contended there was a rational basis in the record for jury to decide that, although defendant made a terroristic threat, defendant did not do so with a dangerous instrument as defined in §707-700.  10 H. App. 584, 880 P.2d 213.

      Terroristic threatening charge under paragraph (1)(d) remanded for prosecutorial misconduct and where evidence of defendant's violation of furlough was not a fact of consequence to any material issue under this section.  82 H. 517 (App.), 923 P.2d 934.

      One may be charged with a violation of subsection (1)(d) when a dangerous instrument is employed in connection with a threat to property as proscribed by §707-715.  88 H. 477 (App.), 967 P.2d 674.

      Subsection (1)(c) was not unconstitutionally vague when applied to defendant's conduct of threatening to kill public servants because of their performance of official duties; this section gave defendant fair notice that defendant's conduct was prohibited and afforded defendant the opportunity to choose between lawful and unlawful conduct.  105 H. 261 (App.), 96 P.3d 590.

      Where there were no jury instructions requiring unanimity as to the person or persons threatened, thus allowing each juror seven choices as to the persons threatened and not requiring all jurors to agree on no less than one person, trial court violated the rule requiring a unanimous jury regarding the person or persons threatened, which was necessary to prove the offense charged.  114 H. 135 (App.), 157 P.3d 574.

     

     

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