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State v. Nakachi8/14/1987
[7 HawApp Page 28] 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. 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 threateni
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