A Temper Tantrum about Going to bed Early isn't Terroristic Threatening
In re PP (ICA April 30, 2014)
Background. A minor was charged with terroristic threatening in the second degree. HRS § 707-717(1). He was accused of threatening by words or conduct to cause bodily injury to Jeffrey Kuewa in reckless disregard of the risk of terrorizing him. At trial before the family court, Kuewa testified that he is a counselor at a youth shelter in Haleiwa. He caught the minor smoking in his room and imposed and early bed time (EBT) at 7:00 p.m. Later that day, Kuewa discovered the minor had not finished his chores, was screaming, and was in an out-of-bounds area in the shelter. He gave him two more EBTs, but never told the minor. The next day, the minor approached Kuewa in an aggressive manner outside the shelter and glared at him. Kuewa told him the additional EBTs were based on going out of bounds and screaming. The minor told him he thought it was just for one day. Kuewa told him he was missing the point of an EBT and admitted he compared the minor a “little girl.” Kuewa testified that he was maybe expecting the minor to swing at him. He never did and walked back into the shelter.
Kuewa later learned that once inside the shelter, the minor was telling people that he was going to get Kuewa. The minor went into detail about how he was going to make Kuewa his “bitch” and would kick his ass. A counselor testified that as the minor said this, he was punching the couch and then “even threatened to kill Jeff, things like that.” Kuewa wasn’t around. He learned about it later and called the police. The counselor told the minor that he needed to stop acting like this or else he would not able to go to the beach. He stopped and went to the beach. When they all returned, Kuewa was there in the parking lot.
The family court found that the minor committed the offense. Minor appealed.
Terroristic Threatening and a True Threat. “A person commits the offense of terroristic threatening if the person threatens, by word or conduct, to cause bodily injury to another person . . . [w]ith the intent to terrorize, or in reckless disregard of the risk of terrorizing, another person[.]” HRS § 707-715. The state of mind needed to find the offense requires at a minimum recklessness as defined in HRS § 702-206. According to the ICA, the State was required to show that the minor, by word or conduct, threatened to cause bodily injury to Kuewa in reckless disregard of the risk of terrorizing him.
The “True Threat” Requirement. This offense requires proof that the conduct had the attributes of a “true threat.” “Proof of a ‘true threat’ focuses 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 of purpose and imminent prospect of execution, the statute may properly be applied.” State v. Chung, 75 Haw. 398, 417, 862 P.2d 1063, 1072-73 (1993).
Later, the HSC clarified that a “true threat” is something different than hyperbole and that the prosecution has to “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.” State v. Valdivia, 95 Hawaii 465, 475, 24 P.3d 661, 671 (2001). Finally, the HSC again reiterated that proof of a “true threat” is required in State v. Martins, 106 Hawaii 136, 102 P.3d 1034 (2004).
Ranting and Raving on the Couch is not a True Threat. The ICA characterized the evidence as a couch-rant. It was “a temper tantrum by a frustrated and foul-mouthed kid who was reacting . . . to what he perceived as unjustified, unfair punishment. . . . The evidence is that he just sat there, punching on the couch, carrying on with curse words and adolescent taunts about how he would show whose dick is bigger, how he was going to get Kuewa for punishing him. Notwithstanding the caustic and hyperbolic language he used, there is simply no evidence that could reasonably support a conclusion that Minor was aware of anything but his own childish feelings about the circumstances.”
The ICA held that this was not a true threat. The Minor was having a tantrum on the couch and was making obscene, over-the-top threats to an adult who was not there. When ordered to stop or he won’t got to the beach, he stopped. The ICA reversed the family court’s findings and decree.
Chief Judge Nakamura’s Dissent. The Chief Judge wrote that there was sufficient evidence supporting the family court’s findings of the offense. The minor was shouting and punching the couch in the presence of two workers at the shelter. He was ranting about sexually assaulting and killing Kuewa when he came back to work. This was enough evidence for the Chief Judge.