88 Hawai'i 477, State v. Markowski
| Decision Date | 14 September 1998 |
| Docket Number | No. 20183,20183 |
| Citation | 967 P.2d 674 |
| Parties | 88 Hawai'i 477 STATE of Hawai'i, Plaintiff-Appellant, v. Darick MARKOWSKI, Defendant-Appellee. |
| Court | Hawaii Court of Appeals |
James M. Anderson, Deputy Prosecuting Attorney, City and County of Honolulu, on the brief for plaintiff-appellant.
Rose Anne Fletcher, Deputy Public Defender, on the brief, Kaneohe, for defendant-appellee.
We hold that the judgment of acquittal entered by the first circuit court (the court) on three counts of terroristic threatening in the first degree, Hawai'i Revised Statutes (HRS) § 707-716(1)(d) (1993), in a complaint filed against Defendant-Appellee Darick R. Markowski (Defendant), did not actually resolve some or all of the factual elements of the counts affected, and, therefore, was not a true acquittal. Thus, Plaintiff-Appellant State of Hawai'i (the State) could properly appeal from the findings of fact, conclusions of law, and the order which dismissed the same charges but were entered subsequent to the judgment of acquittal.
We sustain the State's appeal and hold that terroristic threatening in the first degree with the use of a "dangerous instrument" may be charged under HRS § 707-716(1)(d) even if it is alleged the threat was "to cause serious damage to property of another." HRS § 707-715(1) (1993) (emphasis added). While a dangerous instrument is described in HRS § 707-700 (1993) in terms of its harmful effect on persons, the literal language of the definition, a pari materia reading of HRS § 707-716(1)(d) and HRS § 707-715, which defines terroristic threatening, and the legislative history of these statutes, convince us that the term dangerous instrument is to be construed in terms of its potential for harm to persons. Accordingly, the use of a dangerous instrument may be charged where one purportedly intends to terrorize or recklessly disregards the risk of terrorizing another person by threatening to cause serious damage to property.
I.
On the morning of December 20, 1995, Defendant sought to enter the home of his mother and stepfather, Norene and Romando Pascual. At the time, Defendant's older brother, Richard Markowski (Richard), Richard's wife, Debbie Markowski (Debbie), and their daughter lived with the Pascuals. That morning, all were at home with the exception of Romando.
Although Defendant was initially calm, he began to yell and scream outside the front door of the home. He pounded on the door, and threatened to kill everyone in the house if they would not let him enter. Two or three months earlier, Defendant had been told he was not welcome there.
Richard became alarmed at Defendant's actions and called the police. Officer Eric Ochoco, who answered the call, told Defendant that the family requested that he leave, and Defendant did so. The officer also left shortly thereafter.
However, Defendant returned "a few minutes or so" later, pounded on the door, and again yelling and screaming, threatened to vandalize the house and kill everyone inside. The people in the house then decided to leave by way of the garage. Richard, Debbie, and their daughter left through a kitchen door and got into their car. As Richard backed the car out of the garage, Defendant walked past him and into the garage.
Richard stopped in the driveway "to see what was going to happen." Norene, who was "trying to make [Defendant] leave," grabbed Defendant's hand to "force him out." During this interaction with his mother, Defendant picked up a garden pickaxe. Defendant then started walking towards his brother's car, and according to Norene, repeated that he was going to "bust Richard's car." Richard, Debbie, and their child were inside the car at that time.
Facing Defendant, Norene took a hold of the pickaxe with both of her hands and told Defendant, "You cannot hurt nobody, you not going hurt nobody." When she and Defendant reached the front of Richard's car, Richard exited his car and helped his mother. Richard and Norene were subsequently successful in pulling the pickaxe from Defendant's hands. II.
In a complaint filed by the State on January 4, 1996, Defendant was charged with four counts of Terroristic Threatening in the First Degree in violation of HRS §§ 707-716(1)(a) and (d). 1
In relevant part, HRS § 707-715(1) defines terroristic threatening as follows:
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 or serious damage to property of another or to commit a felony: (1) With the intent to terrorize, or in reckless disregard of the risk of terrorizing, another person[.]
(Emphasis added.)
HRS § 707-716, which describes terroristic threatening in the first degree, provides in subsections (1)(a) and (d) as follows:
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; or
....
(d) With the use of a dangerous instrument.
(2) Terroristic threatening in the first degree is a class C felony.
(Emphasis added.)
HRS § 707-700, which defines dangerous instrument, provides, in relevant part:
Definitions of terms in this chapter. In this chapter, unless a different meaning plainly is required:
....
"Dangerous instrument" means any firearm, whether loaded or not, and whether operable or not, or other weapon, device, instrument, material, or substance, whether animate or inanimate, which in the manner it is used or is intended to be used is known to be capable of producing death or serious bodily injury.
(Emphasis added.)
The jury trial in this case began on August 14, 1996. After the State rested its case, defense counsel moved for a judgment of acquittal on the grounds that the State (1) had not established a prima facie case under Count I with regard to Debbie Markowski, 2 and (2) had defectively charged the case under Counts II-IV because these counts alleged Defendant threatened serious damage to property with a dangerous instrument. Defense counsel argued that since the definition of "dangerous instrument" under HRS § 707-700 referred to any "instrument ... which in the manner it is used or it is intended to be used is known to be capable of producing death or serious bodily injury[,]" the State could not properly charge a dangerous instrument was used to threaten serious damage to property. Rather, according to defense counsel, the dangerous instrument circumstance set forth in HRS § 707-716(1)(d) could only be alleged where the instrument was used against a person.
In opposition, the State asserted that the challenge to Counts II-IV should have been brought as a Hawai'i Rules of Penal Procedure (HRPP) Rule 12(b) pre-trial motion, not as a motion for judgment of acquittal at the conclusion of the State's case-in-chief. As to the merits of defense counsel's contention, the State explained that HRS §§ 707-715 and -716 "go hand in hand"; HRS § 707-715 defining terroristic threatening and HRS § 707-716 enumerating the aggravating situations which raise the offense to first degree status.
The court took the arguments under advisement and allowed counsel to file supplemental memoranda on the issues. Following the filing of the memoranda, the court reconvened on August 22, 1996. After listening to argument, the court stated, "[W]ith respect to Counts II, III, and IV, basically I am inclined to agree with the defense and grant it." The State requested that the court express "in terms of the law" the basis for dismissing the three counts. The court responded, "It's an inconsistency as far as the definition is concerned" since "[t]he definition of a dangerous instrument is that it results in death or serious bodily injury." The court did observe that However, the court affirmed that its ruling was based on the manner in which Defendant was charged:
(Emphases added.)
Defense counsel then rested her case. The jury returned a verdict of not guilty on Count I, the remaining charge brought under HRS § 707-716(1)(a), for terroristic threatening in the first degree.
The court filed a "Judgment of Acquittal [as to Counts I-IV] and Notice of Entry [as to the judgment]" on August 23, 1996 (the judgment of acquittal). Despite having filed the judgment of acquittal with respect to Counts I-IV, the court, on September 27, 1996, filed "Findings of Fact, Conclusions of Law, and Order Granting Defendant's Motion to Dismiss Counts II, III, and IV of the Complaint" (the findings, conclusions, and order). 3 The findings and conclusions provided, in relevant part:
3. The charging is legally incorrect because [Counts II, III, and IV of the Complaint alleged that Defendant "threatened, by word or conduct to cause serious damage to property of Richard...
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