State v. Alston, 16272

• Decision Date: 19 January 1994
• Docket Number: No. 16272,16272
• Citation: 865 P.2d 157,75 Haw. 517
• Parties: STATE of Hawai'i, Plaintiff-Appellee, v. Michael C. ALSTON, Defendant-Appellant.
• Court: Hawaii Supreme Court

Page 157

865 P.2d 157

75 Haw. 517

STATE of Hawai'i, Plaintiff-Appellee, v. Michael C. ALSTON, Defendant-Appellant.

No. 16272.

Supreme Court of Hawai'i.

Jan. 19, 1994.

Syllabus by the Court

1. A motion for a judgment of acquittal tests the sufficiency of the evidence.

2. The standard to be applied by the trial court in ruling upon a motion for a judgment of acquittal is whether, upon the evidence viewed in the light most favorable to the prosecution and in full recognition of the province of the jury, a reasonable mind might fairly conclude guilt beyond a reasonable doubt. An appellate court employes this same standard of review.

3. A prima facie case of terroristic threatening in the first degree is established where the prosecution presents evidence that the defendant (1) threatened, by word or conduct, to cause bodily injury to another (2) on more than one occasion for the same or similar purpose and (3) with the intent to terrorize, or in reckless disregard of the risk of terrorizing, the person.

4. An appellate court sua sponte may notice plain errors affecting substantial rights.

5. Whether a course of conduct gives rise to more than one crime depends in part on the intent and objective of the defendant. The test to determine whether the defendant intended to commit more than one offense is whether the evidence discloses one general intent or discloses separate and distinct intents. Where there is one intention, one general impulse, and one plan, there is but one offense. All factual issues involved in this determination must be decided by the trier of fact.

6. Under Hawai'i Revised Statutes (HRS) § 701-109(4)(a), an offense is included if it is impossible to commit the greater without also committing the lesser. In making this comparison, the degree of culpability, the legislative statutory scheme, and the end result may be considered.

7. Regarding the degree of culpability, the rule is that the lesser included offense cannot have a mental state greater than or different from that which is required for the charged offense.

8. The classification of two crimes under different chapters of the Penal Code indicates that the legislature intended to protect different societal interests with the respective statutes and that one crime would not be the lesser included of the other.

9. A lesser included offense should produce the same end result as the greater charged offense.

10. Terroristic threatening is not a lesser included offense of intimidating a witness within the meaning of HRS § 701-109(4)(a).

11. Under HRS § 701-109(4)(c), an offense is included if it differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person or public interest or a different state of mind indicating lesser degree of culpability suffices to establish its commission.

12. Terroristic threatening is not a lesser included offense of intimidating a witness within the meaning of HRS § 701-109(4)(c).

13. Trial court decisions regarding the admissibility of evidence made pursuant to Hawai'i Rules of Evidence (HRE) 401 are reviewed under the right/wrong standard of review.

14. The abuse of discretion standard of review applies to a trial court's resolution of a HRE 403 objection.

15. The abuse of discretion standard of review applies to a trial court's resolution of a HRE 404 objection.

16. To be subject to criminal prosecution for terroristic threatening, the threat must be conveyed to either the person who is the object of the threat or to a third party. An uncommunicated threat, by definition, cannot threaten. A person making threats does not commit a crime until the threat is heard by one other than the speaker.

17. The offense of terroristic threatening does not require that the person to whom the threats are directed be actually terrorized by the threats. The only question is whether a reasonable jury might conclude from the evidence presented that the threat, communicated to a third party, was made in reckless disregard of the risk of terrorizing another person.

18. A trial court has no discretion to exclude evidence of an ultimate issue in the case.

William A. Harrison, Harrison & Matsuoka, on the briefs, Honolulu, for defendant-appellant.

Caroline M. Mee, Deputy Prosecuting Atty., on the briefs, Honolulu, for plaintiff-appellee.

Before MOON, C.J., KLEIN, NAKAYAMA and RAMIL, JJ., and JAMES S. BURNS, Intermediate Court of Appeals Chief Judge, in Place of LEVINSON, J., recused.

MOON, Chief Justice.

Defendant-appellant Michael C. Alston appeals the judgments of conviction for one count of intimidating a witness and one count of terroristic threatening in the second degree entered against him after a jury trial in the First Circuit Court.

On appeal, Alston argues that (1) his conviction for terroristic threatening violated Hawai'i Revised Statutes (HRS) § 701-109 (1985) which prohibits multiple convictions based on the same conduct; and (2) certain statements made by him could not constitute "threats" sufficient to support a charge of terroristic threatening because they were not communicated to the victim. We hold that HRS § 701-109 did not apply in this case, and that a threat need not be communicated to the victim to constitute a terroristic threatening, and thus affirm Alston's conviction.

I. BACKGROUND

In early September 1989, Alston was involved in an "incident" in front of the Sizzler Restaurant in Waikiki (the Sizzler), witnessed by waitress Darla Calvin and upon which criminal charges were filed. Calvin was subpoenaed by the State of Hawai'i to appear in district court on November 20, 1989 and to testify against Alston in the criminal trial based on the incident. ¹

Pursuant to the subpoena, Calvin appeared at the district court on the date set for trial, at which time she was apparently informed that the defense had moved for and received a continuance. At the trial of the instant case, Calvin testified that before she left the district court courtroom, Alston, who was facing her, said, "someone didn't have to be here today. Someone's wasting their time." Calvin believed Alston's comment was directed to her. Frightened, Calvin approached the prosecutor and asked if she could provide her testimony by deposition rather than having to re-appear in court with Alston present. The prosecutor advised her that it would not be possible. When Calvin turned to leave, Alston allegedly "lurched forward as if to follow [her]," and again said, "[s]omeone is wasting their time," and then sat down.

Although only one date is specifically identified in the record, Alston allegedly confronted Calvin three separate times at the Sizzler over the next few weeks, culminating with his arrest and indictment in the present case.

According to Calvin, Alston first approached her after November 20, 1989, while she was waitressing at the Sizzler, and said in a menacing voice, "you got a problem with me being here?" She stepped back and said, "no." Alston again questioned, "[h]ave you got a problem with me being here?" and then left when she did not respond. Calvin described Alston's remarks as "threatening" based on his tone and because he "sort of jutted his chin out when he talked and sort of moved his chest forward."

Calvin testified that on the next occasion, Alston again confronted her in the Sizzler and asked, "you got something to say to me? Have you got a problem?" Once more, Alston departed when she did not respond. Calvin stated that even though Alston did not physically threaten her, she perceived his statements as "threatening."

On December 16, 1989, Alston returned to the Sizzler at approximately 6:45 a.m. Seated inside at separate tables were Calvin's parents and Honolulu Police Department officers Steven Ariola and Robert Medeiros. ² Calvin, Ariola, and Medeiros testified to the following: Ariola and Medeiros were having coffee and filling out paper work after their midnight shift. Alston, who apparently could not see the officers from where he was standing, approached Calvin and pointed at her, demanding "you got something to say to me? If you've got something to say to me, say it to my face. I know people you don't want to know. I know someone who can make you disappear." Ariola and Medeiros overheard Alston's remarks. At that point, Calvin's father stood up and followed Alston outside with the two officers close behind. Ariola and Medeiros then stopped Alston outside the Sizzler.

Within a short time, another officer, Danny Gooch arrived, and Ariola went back inside to talk with Calvin. Medeiros and Gooch questioned Alston about the statements he made inside the Sizzler. In response, Alston pointed at Calvin (who could be seen inside the Sizzler through a plate glass window) and complained angrily that he was "tired of that bitch," and that if he were arrested, he would "go home and get his pistol and tie up this end once and for all." Further, when two women approached the scene, Alston told one of them, who was apparently his girlfriend, "to go home and get his gun and he would take care of that fat bitch once and for all." In making these statements to the officers, Alston never referenced Calvin specifically by name. Further, no testimony was presented that the officers or anyone else communicated Alston's statements to Calvin or that she otherwise became aware of them.

Alston disputed much of the State's case. He testified that although he saw Calvin in the district court on November 20, 1989, he did not speak to or approach her. However, Alston did admit commenting loudly to a friend, with the intention that Calvin would hear him, that "[he (Alston) didn't] even know why she's over here because she didn't see nothing." Thereafter, Alston saw Calvin twice at the Sizzler, but claimed that he did not have a conversation with her until December 16, 1989.

On December 16, Alston remembered entering the Sizzler as he often did to take a...