State v. Nakachi

• Decision Date: 14 August 1987
• Docket Number: No. 11293,11293
• Parties: STATE of Hawaii, Plaintiff-Appellee, v. Richard L. NAKACHI, Defendant-Appellant.
• Court: Hawaii Court of Appeals

Page 388

742 P.2d 388

7 Haw.App. 28

STATE of Hawaii, Plaintiff-Appellee, v. Richard L. NAKACHI, Defendant-Appellant.

No. 11293.

Intermediate Court of Appeals of Hawai'i.

Aug. 14, 1987.

Syllabus by the Court

1. If the record contains sufficient evidence to support a finding of guilt of one or more included offenses, the trial judge must give an included offense instruction allowing the jury to find defendant not guilty of the charged offense and guilty of an included offense.

2. Actual terrorization is not a material element of terroristic threatening although it is evidence of the occurrence of its material elements.

3. The police are not authorized to order domestic disputants to separate except as specified in Hawaii Revised Statutes § 709-906(4) (1985).

4. An order by the police requiring a person occupying an automobile to exit the automobile is a seizure of that person.

5. The police may not order a person occupying an automobile who is not being validly arrested to exit the automobile unless the facts known to the police would warrant a person of reasonable caution to believe that the occupant is armed and dangerous and that the action taken is appropriate.

Philip D. Bogetto, Honolulu, for defendant-appellant.

G. Cher Foerster, Deputy Pros. Atty., Honolulu, for plaintiff-appellee.

Before BURNS, C.J., and HEEN and TANAKA, JJ.

BURNS, Chief Judge.

Defendant Richard L. Nakachi (Nakachi) appeals the February 18, 1986 judgment convicting him of two counts of terroristic threatening in the second degree in violation of Hawaii Revised Statutes (HRS) § 707-717(1) and one count of possession of a firearm in violation of HRS § 134-6. ¹ We affirm.

The issues and our answers are as follows:

I. Does the record contain sufficient evidence to support a finding of Nakachi's guilt of terroristic threatening without a dangerous instrument? Yes.

II. Did the order by the police requiring Nakachi to exit the automobile violate Nakachi's right under the Hawaii State Constitution to be secure against unreasonable seizures? No.

I.

Nakachi contends that the trial court reversibly erred when it allowed the jury to find him guilty of the included offense of terroristic threatening in the second degree. We disagree.

HRS §§ 707-715(1), 707-716(1)(d), and 707-717(1) provide as follows:

§ 707-715 Terroristic threatening, defined. A person commits the offense of terroristic threatening if he 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[.]

[§ 707-716] Terroristic threatening in the first degree. (1) A person commits the offense of terroristic threatening in the first degree if he commits terroristic threatening:

* * *

* * *

(d) With the use of a dangerous instrument.

[§ 707-717] Terroristic threatening in the second degree. (1) A person commits the offense of terroristic threatening in the second degree if he commits terroristic threatening other than as provided in section 707-716.

Viewed in a light favorable to the prosecution, the relevant facts are as follows. While working on the sixth floor of the Kaiser Hospital (hospital), at about 8:30 p.m. on April 8, 1985, Susan Nacnac (Nacnac) and Ruth Lagana (Lagana), both nurses, heard a disturbance below in the metered public parking lot on the southwest side of the hospital building between it and the Ala Wai yacht harbor. They walked to the balcony, looked down, and saw and heard a man and a woman engaged in a verbal and physical conflict. The woman was yelling for help. The man obtained an object from a handbag. Nacnac and Lagana thought it was a gun. He pointed it up toward them. In terror they ran back into the building.

Others with better vantage points than Nacnac and Lagana saw Nakachi point what they thought was a gun up toward them and yell, "What are you fuckers looking at[?] I will blow you away, you fuckers. I will get you." Nakachi admitted that he was angry at all the people in the hospital who were watching; that he pointed his finger toward the people in the hospital; and that he loudly yelled, "What the fuck are you guys looking at, you fuckers?"

The prosecution charged that, in violation of HRS § 707-716(1)(d), "RICHARD L. NAKACHI threatened, by word or conduct to cause bodily injury to [Nacnac and Lagana], with the use of a dangerous instrument, to wit, a .32 caliber revolver in reckless disregard of the risk of terrorizing" Nacnac and Lagana.

Over Nakachi's objection, the trial court instructed the jury that if it did not find Nakachi guilty as charged of terroristic threatening in the first degree, it must decide whether Nakachi was guilty of the included offense of terroristic threatening in the second degree.

The jury first found Nakachi not guilty of terroristic threatening in the first degree and then guilty of terroristic threatening in the second degree. In other words, the jury found that Nakachi threatened by word or conduct but not with the use of a dangerous instrument ² to cause bodily injury to Nacnac and Lagana in reckless disregard ³ of the risk of terrorizing them.

Unquestionably, terroristic threatening in the second degree can be an offense included ⁴ within terroristic threatening in the first degree. Nakachi contends that there is insufficient evidence in the record to support the giving of an included offense instruction in this case. The issue is whether there was a rational basis in the evidence for a verdict acquitting Nakachi of terroristic threatening with a dangerous instrument and convicting him of terroristic threatening without a dangerous instrument. HRS § 701-109(5) (1985); ⁵ State v. Sneed, 68 Haw. 463, 718 P.2d 280 (1986). There is no rational basis unless the record contains sufficient evidence to support a finding of guilt of terroristic threatening without a dangerous instrument. Sneed, 68 Haw. at ---, 718 P.2d at 282 (1986). Consequently, the issue we face is the same issue we would be facing if Nakachi were appealing the denial of his Rule 29(c), HRPP, post-trial motion for judgment of acquittal of the included offense. 2 Wright, Federal Practice and Procedure: Criminal 2d § 467 (1982); see State v. Halemanu, 3 Haw.App. 300, 650 P.2d 587 (1982).

Nakachi notes (a) that Nacnac and Lagana did not hear him threaten them, (b) could not identify him as the person who terrorized them, and (c) that, in the absence of Nakachi's use of a dangerous instrument, their terror was unreasonable. What Nakachi fails to note, however, is that (a) and (b) are not material elements of terroristic threatening in the second degree. Those elements are as follows: (1) By words or conduct Nakachi threatened Nacnac and Lagana, (2) to cause them bodily injury (3) in reckless disregard of the risk of terrorizing them. Actual terrorization is not a material element although it is evidence of the occurrence of the material elements. Clearly, there is substantial evidence in the record for elements 1 and 2. The question is whether upon the evidence a reasonable jury might fairly conclude that Nakachi uttered his threats in reckless disregard of the risk of terrorizing Nacnac and Lagana. See State v. Halemanu, 3 Haw.App. at 304, 650 P.2d at 591 (1982).

HRS § 702-206(3)(a) provides, "A person acts recklessly with respect to his conduct when he consciously disregards a substantial and unjustifiable risk by engaging in such conduct." The question here is whether the risk that Nakachi's conduct would terrorize Nacnac and Lagana was "substantial and unjustifiable."

HRS § 702-206(3)(d) provides, "A risk is substantial and unjustifiable within the meaning of this section if, considering the nature and purpose of the person's conduct and the circumstances known to him, the disregard of the risk involves a gross deviation from the standard of conduct that a law-abiding person would observe in the same situation." Given those definitions, we conclude in Nakachi's case that the trial court rightly determined that a reasonable jury might fairly conclude that Nakachi acted recklessly by consciously disregarding a substantial and unjustifiable risk. Thus, there was a rational basis for the trial court to give the included offense instruction. State v. Sneed, supra.

II.

Nakachi contends that the trial court reversibly erred in denying his Rule 12(b)(3), Hawaii Rules of Penal Procedure (HRPP), motion to suppress the handgun as evidence because the discovery of the handgun by the police resulted from the violation of his right under art. 1, sec. 7 of the Hawaii State Constitution to be secure against unreasonable seizures. ⁶ We disagree.

Viewed in a light favorable to the prosecution, the relevant facts are as follows. ⁷ While on patrol in Waikiki on April 8, 1985, at about 8:30 p.m., Officer Mark Victor (Officer Victor) received a call from dispatch stating that an anonymous caller ⁸ reported a domestic type argument in progress in the Kaiser Hospital parking lot. He and Officer Darren Asuncion (Officer Asuncion) responded to the call. Each officer was operating a Cushman three-wheel motorcycle. As Officer Victor approached the parking lot, persons in passing automobiles informed him that "it's over there and it's happening in a blue VW or a blue bug". Officer Victor drove toward the blue Volkswagen automobile, parking his motorcycle behind the automobile in a position that blocked the automobile from leaving. His intent was to prevent the occupants from leaving.

Officers Victor and Asuncion approached the driver's side of the automobile and noticed a male in the driver's seat and a female in the passenger's seat. The automobile's engine was off. The male, who was later identified as Nakachi, and the female, who was later identified as Terri Daily (Daily), continued to yell and swear at each other. Officer Victor smelled alcohol about...