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                                                              Electronically Filed
                                                              Supreme Court
                                                              SCWC-14-0001217
                                                              21-JUN-2017
                                                              08:18 AM




           IN THE SUPREME COURT OF THE STATE OF HAWAIʻI

                                ---o0o---


                          STATE OF HAWAIʻI,
                   Respondent/Plaintiff-Appellee,

                                    vs.

                            JAMAL MCGHEE,
                   Petitioner/Defendant-Appellant.


                            SCWC-14-0001217

         CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
           (CAAP-14-0001217; CASE NO. 1DCW-14-0002729)

                              JUNE 21, 2017

 RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.

                OPINION OF THE COURT BY POLLACK, J.

          During closing argument in the defendant’s bench

trial, the prosecutor read a portion of the complainant’s prior

statement to the police although its contents had not been

admitted into evidence.     We conclude that the reading of the
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statement violated the defendant’s substantial rights.              We also

clarify that evidence proffered in a terroristic threatening

prosecution of the presence or absence of the complainant’s

fear, that is incidental to the defendant’s alleged words or

conduct, is relevant to the “true threat” and state of mind

requirements of this offense.

                              I.   BACKGROUND

         A. District Court Proceedings

            Jamal McGhee was charged by complaint with threatening

“by word or conduct to cause bodily injury to [Edithe Kearney],

in reckless disregard of the risk of terrorizing [her] thereby

committing the offense of Terroristic Threatening in the Second

Degree, in violation of [Hawaii Revised Statutes (HRS) §] 707-

717(1).”1   McGhee waived his right to a jury trial in the



     1
            HRS § 707-717 (2014) states as follows:

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

            (2) Terroristic threatening in the second degree is a
            misdemeanor.

            HRS § 707-715 defines terroristic threatening as follows:

            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 or harm to
            property, including the pets or livestock, of another or to
            commit a felony:


                                                             (continued . . .)

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District Court of the First Circuit (district court) and entered

a plea of not guilty.2      At the bench trial,3 Kearney and McGhee

were the only witnesses.

            Kearney testified that she is the owner of a club

called Alley Cat located on Oʻahu.        Kearney indicated that Alley

Cat is very small in size--the number of patrons can be from ten

to twenty--and the club does not get loud.             On June 12, 2014,

around 2:00 a.m., McGhee came to Alley Cat.            Kearney testified

that McGhee was upset with an Alley Cat employee who was at the

front door.    Kearney stated that she was inside by the bar,

about three yards from the front door, when she heard McGhee--

who she described as very loud--screaming, swearing, cursing,

and threatening everyone.       As a result of McGhee’s yelling and

threatening, Kearney went outside the club.            Kearney testified

that McGhee was very upset and threatened her, saying that he

“can kill me, can beat me up, that sort of thing.”            Kearney

stated that she felt threatened by McGhee’s remarks, and she


(. . . continued)

            (1) With the intent to terrorize, or in reckless disregard
            of the risk of terrorizing, another person[.] . . .

HRS § 707-715(1) (2014).
      2
            McGhee was also charged with harassment, but this charge was
dismissed on motion of the State.
      3
            The Honorable Linda K. C. Luke presided.



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called the police because he did not calm down.          The police

arrived more than ten minutes later, but by then, McGhee had

already left the area with the help of Gloria Pancho, McGhee’s

girlfriend and Kearney’s former employee.

            On cross-examination, Kearney testified that she did

not call the police upon hearing McGhee from inside the club

because she thought she or Pancho could calm McGhee down.

Despite McGhee’s yelling, Kearney felt it was okay to go outside

because “I mean, I’m almost 70.       I’m not afraid to be -- if he

wants to kill me, kill me.”

            Upon the conclusion of Kearney’s testimony, the State

rested.   McGhee moved for judgment of acquittal, which motion

the district court denied, and the defense presented its

evidence.

            McGhee, who was then 43 years old, testified that he

went to Alley Cat to pick up his key from his girlfriend.

McGhee related that while waiting outside--at least 30 or 35

feet from the front door because he had already had problems

with Alley Cat--he was smoking a cigarette and not yelling.

McGhee testified that Kearney “was kind of hidden in the bushes”

and that he did not see her until the police arrived.            Later in

his testimony, McGhee clarified that Kearney was not in the

bushes; it was just that he did not see her because it was dark.

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McGhee explained that had he seen Kearney, he would have left

because she always called the police on him.          McGhee stated that

Kearney called the police on that day because she did not like

him to be around Alley Cat.

           Following the close of McGhee’s case, the prosecutor

presented his closing argument.       The prosecutor argued that

Kearney’s testimony was credible.        The prosecutor pointed out

that Kearney was 70 years old and that, even given Kearney’s

physical stature, she was not concerned for herself but rather

for her employees.    The prosecutor contended that McGhee was

“hysterical” on the day in question and essentially made up a

story.   The prosecutor challenged McGhee’s credibility, arguing

that McGhee initially testified that Kearney was hiding in the

bushes, but he later testified that Kearney was not hiding

there.   The prosecutor thus concluded that McGhee’s testimony

was not credible.

           Defense counsel in his closing argument maintained

that McGhee went to Alley Cat, where he waited outside--from a

distance--for his girlfriend.       Counsel contended that whether

Kearney was near or behind the bushes was not relevant to

McGhee’s credibility.     The defense argued that Kearney was not

credible because she testified that McGhee was yelling and that

“she was afraid of what would happen to her, her workers and

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herself” and yet felt she could go outside and calm the

situation down.     Defense counsel argued that under such

circumstances “there’s no risk of threatening.”           Counsel also

pointed out that Kearney herself testified that “she was not

afraid at that time.”

           The prosecutor began his rebuttal closing argument by

stating that “in candor to the Court, given what the defense

argument has been . . . I do need to point out although this

wasn’t raised as evidence in this case, out of fairness to the

defendant I believe I do need to point it out.”           The prosecutor

explained that the defense started to impeach Kearney with her

prior statement that she was afraid.

           The prosecutor then elaborated on his understanding of

the defense’s impeachment efforts: “I believe what they were

referring to was a portion of the written 252 that the witness

was not confronted with.”4       The prosecutor acknowledged that the

prior statement was not part of the evidence but stated that he

did not have a problem with the court considering it.

           [PROSECUTOR:] I’m not going to raise that argument that she
           -- that is not part of the evidence in this case, I don’t
           have a problem with the Court considering that that was
           included in the 252. I just put that out there in fairness


     4
            The “written 252” refers to a prior statement that Kearney
provided to police. However, the record indicates that the defense did not
reference a prior statement during cross-examination.



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           to the defense. Nonetheless, the State would still argue
           that the witness be found credible.

           THE COURT: So your representation in the 252 –-

           [PROSECUTOR]: The 2 -- in the 252 there was a statement
           that I was afraid. However, the State is urging the Court
           to find that her testimony in court is credible. I feel it
           just as important to point out because I know that the
           defense started asking about that but didn’t finish laying
           the foundation for it. So just out of fairness, I just
           think it’s appropriate to note that for the Court.

           THE COURT: And the portion of the 252 is that [Kearney] was
           afraid?

           [PROSECUTOR]: Correct, Your Honor, if I could just read
           that portion for the Court?

Thus, after the prosecutor disclosed the existence of the prior

statement that was “not part of the evidence,” the court asked

the prosecutor if the portion of the statement he was referring

to indicated that Kearney was afraid.        Upon affirming that the

“portion of the 252” did state this, the prosecutor asked if he

could read that portion.      The court then addressed defense

counsel.

           THE COURT: May he read it?

           [DEFENSE COUNSEL]: Yes, Your Honor.

           [PROSECUTOR]: It reads: At that time I was afraid and call
           the police. The tense is incorrect in that.

           THE COURT: All right, thank you. . . . .

After the prosecutor read the portion of the prior statement

that stated Kearney was afraid and called the police

(hereinafter “252 Statement”), the court immediately rendered a

guilty verdict upon the charge.         The court explained that “this


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is a matter of credibility and I do opt to believe the version

of the complaining witness.”

             The district court sentenced McGhee and entered the

Notice of Entry of Judgment and/or Order.5          McGhee filed a notice

of appeal.

          B. Intermediate Court of Appeals (ICA) Proceedings

             In his opening brief, McGhee argued that he was

deprived of his right to confront and cross-examine witnesses

because the State did not introduce Kearney’s 252 Statement into

evidence until after she left the courtroom and was no longer

subject to cross-examination.        McGhee contended that the State

could have introduced Kearney’s 252 Statement during her

testimony if the proper evidentiary foundation had been laid,

but it chose not to seek its admission until after Kearney left

the courtroom.

             McGhee argued that Kearney provided inconsistent

testimony as she testified on direct examination that she felt

threatened but acknowledged on cross-examination that she was

not afraid.    McGhee maintained that Kearney’s acknowledgment

corroborated his defense that he did not threaten her.             McGhee


      5
            McGhee was sentenced to one year of probation, a probation fee of
$75, a crime fee of $55, and anger management assessment. As a condition of
probation, McGhee was required to stay away from Kearney and Alley Cat.



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asserted that Kearney’s lack of fear was relevant because it had

a tendency to make it more probable that McGhee did not threaten

her, as she did not act like a person who felt threatened.

          Additionally, McGhee argued that Kearney’s

acknowledgment that she was not afraid was relevant because the

outcome of the case depended on the credibility of the only two

witnesses who testified.      McGhee contended that he relied on

Kearney’s testimony that she was not afraid to establish that

reasonable doubt existed as to whether he committed terroristic

threatening in the second degree.        According to McGhee, when the

prosecutor sought to read Kearney’s 252 Statement in closing

argument, the prosecutor was concerned about Kearney’s

credibility and not about “fairness to the defense.”           McGhee

asserted that the district court committed plain error when it

admitted Kearney’s 252 Statement into evidence.

          In its answering brief, the State contended that

McGhee waived any objection to the introduction of Kearney’s 252

Statement because he consented to the prosecutor’s reading of

the statement during closing argument.         The State also argued

that the introduction of Kearney’s 252 Statement that she was

afraid was harmless beyond a reasonable doubt because it was

irrelevant to establishing the elements of terroristic

threatening.   The State emphasized that “a victim’s subjective

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fear or lack of fear in response to a threat is not in itself

relevant to whether the threat is a true threat” and that the

determinative question was whether a reasonable trier of fact

might fairly conclude that McGhee uttered his threats in

reckless disregard of the risk of terrorizing another person.

             The State also argued that Kearney’s acknowledgment

that she was not afraid of McGhee’s threats only indicated that

she did not fear bodily injury or death and had nothing to do

with whether Kearney believed that McGhee would have carried out

those threats.    Further, even if Kearney’s subjective fear or

lack of fear was a tangential issue, the State contended that

Kearney’s 252 Statement was cumulative of her testimony that she

felt threatened by McGhee’s threats.        The State concluded that

if the evidence was considered in the most favorable light to

McGhee, any consideration of the 252 Statement could not have

contributed to McGhee’s conviction.

             In a summary disposition order, the ICA affirmed the

district court’s judgment.      State v. McGhee, No. CAAP-14-

0001217, 2015 WL 6452678 (Haw. Ct. App. Oct. 23, 2015).            The ICA

explained that it was not convinced that the 252 Statement was

admitted into evidence or intended to be treated as evidence.

Id. at *2.    The ICA found that the State’s offer to read

Kearney’s 252 Statement was not, in context, an offer to

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introduce evidence, since the statement contradicted Kearney’s

testimony that she felt she could calm McGhee down.             Id.

Rather, the ICA found that the prosecutor wanted to disclose

Kearney’s prior statement, which was consistent with the

defense’s cross-examination, out of an abundance of caution.

Id.   The ICA also noted that the district court did not issue a

ruling admitting the 252 Statement into evidence, nor did the

district court mention the 252 Statement any further.              Id.

Thus, the ICA concluded that in looking at the closing argument

exchange in context, it did not appear that the 252 Statement

was admitted or meant to be treated as evidence.             Id.

            The ICA alternatively concluded that, even if the 252

Statement was admitted into evidence or intended to be treated

as evidence, the substance of the statement was not relevant to

the issues at trial.       Id.   The ICA reasoned that terroristic

threatening does not require proof of actual fear.             Id.

Further, the ICA determined that the 252 Statement could not

have contributed to McGhee’s conviction because Kearney had

already testified on direct examination that she felt threatened

but went out to meet McGhee anyway.          Id.   Since the 252

Statement did not add to Kearney’s credibility and arguably

detracted from it, the ICA concluded that any committed error

was harmless.     Id.

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           Chief Judge Nakamura dissented, determining that the

prosecutor committed prosecutorial misconduct by referring to

the 252 Statement, which had not been admitted into evidence.

Id. at *3 (Nakamura, C.J., dissenting).         The dissent pointed out

that the prosecutor twice mentioned the contents of the 252

Statement before requesting to read it and although defense

counsel did not object to the prosecutor’s reading of it, the

district court committed error when it received and considered

the statement.    Id.

           The dissent also rejected the prosecutor’s explanation

that the 252 Statement was referenced “in fairness to the

defense,” noting that the statement actually benefited the

State.   Id.   The dissent noted that the 252 Statement supported

the State’s theory that McGhee committed terroristic

threatening, contradicted Kearney’s testimony on cross-

examination that she was not afraid of McGhee, and diminished

the effect of the defense’s cross-examination of Kearney.              Id.

Since the case depended on the credibility of Kearney and

McGhee, the only two witnesses who testified at trial, Chief

Judge Nakamura concluded that the improper introduction of the

non-admitted evidence enhanced Kearney’s credibility and

“prejudicially affected McGhee’s substantial rights.”            Id.




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Thus, the dissent would have vacated McGhee’s conviction and

remanded the case for a new trial.        Id.

                            II.   DISCUSSION

           In his application for writ of certiorari, McGhee

argues that the ICA gravely erred in concluding that the

district court did not commit plain error when it allowed the

prosecutor in closing argument to read Kearney’s 252 Statement,

which had not been admitted into evidence.         McGhee contends that

the improper introduction of the 252 Statement deprived him of

his right to confront and cross-examine Kearney.           McGhee also

asserts that Kearney’s 252 Statement was inadmissible

testimonial hearsay, and because he had no opportunity to

question Kearney about the 252 Statement, its introduction

during closing argument affected his substantial rights.            In

addition, McGhee urges this court to adopt the reasoning of

Chief Judge Nakamura’s dissent in the ICA decision.

      A. The Reading of Kearney’s 252 Statement Was Improper.

           During rebuttal closing argument, the prosecutor

informed the district court that Kearney made a 252 Statement in

which she stated, “At that time I was afraid and call the

police.”   The 252 Statement was being referenced, according to

the prosecutor, because “the defense started asking about that

but didn’t finish laying the foundation for it.”           However, the

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record does not show that the defense had begun asking about the

252 Statement or had even mentioned it during its cross-

examination of Kearney.     In any event, regardless of the

prosecutor’s stated benevolent intentions, the 252 Statement had

not been admitted into evidence.

          We have frequently stated that during closing

argument, a prosecutor is “permitted to draw reasonable

inferences from the evidence and wide latitude is allowed in

discussing the evidence.”      State v. Nofoa, 135 Hawaiʻi 220, 228,

349 P.3d 327, 335 (2015) (quoting State v. Clark, 83 Hawaiʻi 289,

304, 926 P.2d 194, 209 (1996)); State v. Basham, 132 Hawaiʻi 97,

112, 319 P.3d 1105, 1120 (2014) (quoting Clark, 83 Hawaiʻi at

304, 926 P.2d at 209).     Thus, it is “within the bounds of

legitimate argument for prosecutors [as well as the defense] to

state, discuss, and comment on the evidence as well as to draw

all reasonable inferences from the evidence.”          State v. Quitog,

85 Hawaiʻi 128, 145, 938 P.2d 559, 576 (1997) (emphasis added)

(quoting Clark, 83 Hawaiʻi at 304, 926 P.2d at 209).           The scope

of argument, therefore, “must be consistent with the evidence

and marked by the fairness that should characterize all of the

prosecutor’s conduct.”     State v. Rogan, 91 Hawaiʻi 405, 413, 984

P.2d 1231, 1239 (1999).



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             “Closing arguments are not the place to introduce new

evidence outside the safeguards of the Hawaiʻi Rules of

Evidence.”    Basham, 132 Hawaiʻi at 113, 319 P.3d at 1121 (citing

State v. Yip, 92 Hawaiʻi 98, 111, 987 P.2d 996, 1009 (App. 1999)

(“In closing arguments, it is improper to refer to evidence

which is not in the record or has been excluded by the

court.”)).    In Basham, we noted that a defendant’s fundamental

right to confront the State’s evidence may be compromised when a

fact not presented at trial is referenced by the prosecutor

during closing argument.      Id. at 118, 319 P.3d at 1126.        In State

v. Tuua, we held that the prosecutor “did not draw legitimate

inferences from the testimony” and improperly went beyond the

record in discussing the consequences of the jury’s verdict.

125 Hawaiʻi 10, 14, 250 P.3d 273, 277 (2011).         Recently, in

Nofoa, we held that the circuit court abused its discretion when

it permitted the prosecutor to present to the jury a fact not in

evidence that resulted in substantial prejudice to the

defendant.    135 Hawaiʻi at 228, 349 P.3d at 335.        We observed

that “[t]he timing of the introduction of the fact” in closing

argument precluded the defendant from confronting it because “at

that point defense counsel has no opportunity to contest or

clarify what the prosecutor has said.”         Id. at 229-30, 349 P.3d

at 336-37.

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           In this case, the ICA determined that the offer by the

prosecution to read the 252 Statement was not, in context, an

offer to introduce evidence.      State v. McGhee, No. CAAP-14-

0001217, 2015 WL 6452678, at *2 (Haw. Ct. App. Oct. 23, 2015).

The ICA noted that the district court did not rule that the

statement was admitted into evidence and did not mention it

further.   Id.   Thus, the ICA concluded that “taking the exchange

in context, it does not appear the statement was admitted or

meant to be treated as evidence.”        Id.

           However, it is of no consequence whether the 252

Statement was admitted as evidence by the district court in

closing argument or meant to be treated as evidence.           Nor is the

propriety of disclosure of a fact not in evidence during closing

argument dependent upon the intentions of the prosecutor.

Unequivocally, a counsel’s closing argument is not evidence,

Quitog, 85 Hawaiʻi at 144, 938 P.2d at 575, and closing argument

is not the time in trial to introduce new evidence, Basham, 132

Hawaiʻi at 113, 319 P.3d at 1121 (citing Yip, 92 Hawaiʻi at 111,

987 P.2d at 1009).    Therefore, the district court could not have

permitted the prosecutor’s statement in closing argument to be

admitted or treated as evidence.

           The ICA instead should have determined whether the

prosecutor’s disclosure of the 252 Statement was within the

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bounds of legitimate closing argument to state, discuss, and

comment upon.    Indisputably, the 252 Statement was not admitted

into evidence during the evidentiary phase of trial.            Further,

the contents of the 252 Statement could not have been reasonably

inferred from the evidence that had been introduced at trial.

Quitog, 85 Hawaiʻi at 145, 938 P.2d at 576 (citing Clark, 83

Hawaiʻi at 304, 926 P.2d at 209).         Therefore, the district court

erred in permitting the prosecutor to reference and read the 252

Statement, as the statement was clearly outside the bounds of

legitimate closing argument.6       Id., 938 P.2d at 576.

      B. The 252 Statement Was Relevant to the Issues at Trial.

            The ICA alternatively concluded that the 252 Statement

was irrelevant to the issues at trial even if the statement was

treated or admitted as evidence.          State v. McGhee, No. CAAP-14-

0001217, 2015 WL 6452678, at *2 (Haw. Ct. App. Oct. 23, 2015).

The ICA reasoned that “[t]he crime of Terroristic Threatening

does not require proof that the victim was actually placed in

fear by the statements of the defendant.”          Id. (citing State v.

Chung, 75 Haw. 398, 413, 862 P.2d 1063, 1071 (1993) (quoting

State v. Nakachi, 7 Haw. App. 28, 32, 742 P.2d 388, 391 (1987))

(“Actual terrorization is not a material element of the offense

      6
            Part C addresses the potential prejudice of referencing and
reading the 252 Statement.



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of terroristic threatening.”)).       The State similarly contended

that the prosecutor’s reference in closing argument to Kearney’s

252 Statement that she was afraid was harmless because it was

irrelevant to establishing the material elements of terroristic

threatening.    The State maintained that “a victim’s subjective

fear or lack of fear in response to a threat is not in itself

relevant.”

             While it is true that the court in Nakachi stated that

actual fear is not a material element of terroristic

threatening, the court went on to state that actual

terrorization is, nevertheless, “evidence of the occurrence of

the material elements.”     7 Haw. App. at 32, 742 P.2d at 391

(emphasis added) (“Actual terrorization is not a material

element although it is evidence of the occurrence of the

material elements.”).     The Nakachi court explained that “[t]he

question is whether upon the evidence a reasonable jury might

fairly conclude that [the defendant] uttered his threats in

reckless disregard of the risk of terrorizing [the

complainants].”    Id., 742 P.2d at 392 (citing State v. Halemanu,

3 Haw. App. 300, 304, 650 P.2d 587, 591 (1982)).

             Thus, a complainant’s fear caused by a defendant’s

words or conduct is relevant evidence in a prosecution of

terroristic threatening, as such fear may be circumstantial

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evidence that the utterance or conduct (1) was a “true threat,”7

or (2) was intended to terrorize or in reckless disregard of the

risk of terrorizing another person.         Id., 742 P.2d at 391-92.8

By the same token, a complainant’s lack of fear may be

circumstantial evidence that the defendant’s words or conduct

did not constitute a “true threat” or that the defendant did not

act with the requisite state of mind.

            In this case, contrary to the ICA’s holding and the

State’s argument, the fear Kearney referenced in her 252

Statement was relevant as circumstantial evidence to proving

that McGhee’s words or conduct constituted a “true threat” and

that McGhee acted with reckless disregard of the risk of

terrorizing Kearney.      When the prosecutor referenced in closing


      7
            In a terroristic threatening prosecution, the State must prove
beyond a reasonable doubt that a remark threatening bodily injury constitutes
a “true threat” such that it 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 remark[]
[was] uttered,” because those circumstances indicate that the threat was “so
unequivocal, unconditional, immediate[,] and specific as to the person
threatened, [that it] convey[ed] a gravity of purpose and imminent prospect
of execution.” State v. Valdivia, 95 Hawaiʻi 465, 476, 24 P.3d 661, 672
(2001) (third alteration in original) (quoting Chung, 75 Haw. at 416-17, 862
P.2d at 1073).

      8
            Relatedly, this court has noted that a “threat” in the context of
robbery statutes “may be proven and often must be proven by circumstantial
evidence and reasonable inferences to be drawn therefrom.” State v. Iuli,
101 Hawaiʻi 196, 207, 65 P.3d 143, 154 (2003) (quoting Halemanu, 3 Haw. App.
at 305, 650 P.2d at 592) (relying in part on the complaining witness’s
testimony that he felt threatened and fearful to conclude that there was a
“threat”).




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argument Kearney’s 252 Statement that she was afraid of McGhee

and called the police, the statement, had it been properly

admitted as evidence during the evidentiary stage of trial,

would have corroborated Kearney’s testimony on direct

examination that she felt threatened and would have mitigated

the effect of her testimony on cross-examination that she was

not afraid.    Thus, the existence of Kearney’s fear made it more

likely that McGhee engaged in behavior constituting terroristic

threatening in the second degree and was, therefore, relevant to

the issues at trial.      Consequently, the ICA erred in concluding

that even if the 252 Statement was admitted or treated as

evidence it was irrelevant to the issues at trial.9            This error

contributed to the ICA incorrectly assessing the effect of the



      9
            We note that while actual terrorization is not required to prove
the terroristic threatening offense, this court’s later decisions provide
that constitutional considerations require that a “true threat” be made.
Valdivia, 95 Hawaiʻi at 476, 24 P.3d at 672. Consequently, the Nakachi
formulation would appear to create the potential for confusion, as on the one
hand, actual terrorization is not required to prove the offense, but on the
other hand, a “true threat” must be demonstrated, requiring the prosecution
to prove that the defendant’s words or conduct “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 remark[]
[was] uttered.” Id., 24 P.3d at 672. Thus, evidence as to the complainant’s
reaction to the threat is a relevant consideration as to the objective
capability assessment and in evaluating whether the threat was “‘so
unequivocal, unconditional, immediate[,] and specific as to the person
threatened, [that it] convey[ed] a gravity of purpose and imminent prospect
of execution.’” Id., 24 P.3d at 672 (first alteration in original) (quoting
Chung, 75 Haw. at 416-17, 862 P.2d at 1073). Courts should therefore
exercise caution in applying or instructing upon the Nakachi formulation.




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252 Statement upon the evidence adduced at trial, which we next

consider.

            C. The Error Violated McGhee’s Substantial Rights.

             An improper statement by the prosecutor in closing

argument warrants a new trial if “there is a reasonable

possibility that the error complained of might have contributed

to the conviction.”     State v. Tuua, 125 Hawaiʻi 10, 16, 250 P.3d

273, 279 (2011) (quoting State v. Hauge, 103 Hawaiʻi 38, 47, 79

P.3d 131, 140 (2003)).     To assess whether a prosecutor’s

improper statement in closing argument was harmless beyond a

reasonable doubt, we evaluate three factors: “(1) the nature of

the conduct; (2) the promptness of a curative instruction; and

(3) the strength or weakness of the evidence against the

defendant.”     Id. at 15-16, 250 P.3d at 278-79 (quoting State v.

Mainaaupo, 117 Hawaiʻi 235, 252, 178 P.3d 1, 18 (2008)); State v.

Barrios, 139 Hawaiʻi 321, 329, 389 P.3d 916, 924 (2016).

                       1. Nature of the Conduct

             This court evaluates the level of the misconduct in

determining whether the first factor favors holding that an

improper statement was harmless.         Barrios, 139 Hawaiʻi at 330,

389 P.3d at 925; see Tuua, 125 Hawaiʻi at 16, 250 P.3d at 279

(citing State v. Maluia, 107 Hawaiʻi 20, 27, 108 P.3d 974, 981

(2005)).     As discussed, the prosecutor improperly referenced and

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read in closing argument Kearney’s 252 Statement, which stated

that at the time of the incident, Kearney was afraid and called

the police.   The 252 Statement was not admitted into evidence,

and its contents were not reasonably inferred from the evidence

that had been presented.

            As the basis for the disclosure of the 252 Statement,

the prosecutor informed the court that it was necessary to point

out that the defense started to impeach Kearney with her

previous statement that she was afraid, which the prosecutor

believed was in reference to Kearney’s 252 Statement.            However,

the record indicates that the defense did not reference the 252

Statement during its cross-examination of Kearney.

            The 252 Statement stating that Kearney was afraid was

referenced four times during the prosecutor’s rebuttal closing

argument.   Prior to the statement being read, the district court

went so far as to confirm with the prosecutor that the 252

Statement to which the prosecutor was referring indicated that

Kearney was afraid.     Then, immediately after the prosecutor read

the 252 Statement, the district court rendered its verdict

explaining that “this is a matter of credibility and I do opt to

believe the version of the complaining witness.”

            Kearney’s 252 Statement was unquestionably relevant to

establishing the offense of terroristic threatening as it could

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have been considered as circumstantial evidence that McGhee’s

words or conduct resulted in a “true threat” and that McGhee

acted with reckless disregard of the risk of terrorizing

Kearney.   On this record, it therefore cannot be said that

McGhee was not prejudiced by the reading of the 252 Statement in

rebuttal closing argument.

             In addition, the prejudice was exacerbated by McGhee’s

inability to confront and cross-examine Kearney regarding her

252 Statement because of the timing of the prosecutor’s

disclosure, which was made during closing argument.

Accordingly, the first factor weighs in favor of holding that

the error was not harmless beyond a reasonable doubt.

                2. Promptness of a Curative Instruction

             Given the absence of a jury in this case, the presence

or absence of a curative instruction is inapposite.           Instead, a

more appropriate inquiry is whether this court can conclude,

based on the relevant circumstances, that the district court

disregarded or did not consider the 252 Statement.           Initially,

it is noted that the prosecutor twice informed the district

court that the 252 Statement was not in evidence, and the court

did not foreclose the prosecutor from further discussing the

statement.    Instead, the district court asked about the 252

Statement and then verified through the prosecutor the substance

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of the 252 Statement.     It was only at this point that the

prosecutor asked about reading the 252 Statement, which the

court facilitated by (1) not denying the prosecutor’s request to

read the statement, (2) obtaining the defense’s approval for the

statement to be read, and (3) then allowing the prosecutor to

read the statement.     After the statement was read, the district

court did not state on the record that it would disregard or not

consider the 252 Statement in evaluating the evidence and

thereupon proceeded to render its verdict.

          Under such circumstances, it cannot be concluded that

the district court disregarded or did not consider the 252

Statement or that McGhee was not prejudiced by the reading of

the statement.    Consequently, the second factor weighs in favor

of a determination that the improper reference to the 252

Statement was not harmless beyond a reasonable doubt.

            3. The Strength or Weakness of the Evidence

          “In close cases involving the credibility of

witnesses, particularly where there are no disinterested

witnesses or other corroborating evidence, this court has been

reluctant to hold improper statements harmless.”           Tuua, 125

Hawaiʻi at 17, 250 P.3d at 280.       Here, the evidence at trial

consisted only of the testimony of Kearney and McGhee, “each of

whom arguably had a potential interest or bias.”           Id., 250 P.3d

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at 280.   The State’s evidence pertaining to the terroristic

threatening offense depended on Kearney’s version of events,

which conflicted with McGhee’s description of the incident.

Therefore, the credibility of Kearney and McGhee was pivotal.

           On direct examination, Kearney stated that she felt

threatened, but on cross-examination, she testified that she was

not afraid.   Thus, prior to the recitation of Kearney’s 252

Statement, which indicated that she called the police because

she was afraid, the trial court faced directly conflicting

statements from Kearney.      The prosecution’s reading of Kearney’s

252 Statement during its rebuttal closing argument directly

supported Kearney’s testimony on direct examination and

conflicted with her testimony on cross-examination, effectively

tipping the scale in favor of her testimony on direct

examination and enhancing her credibility.         Because the 252

Statement directly supported Kearney’s testimony on direct

examination, it bolstered the State’s case.          In addition, the

252 Statement countered the effect of Kearney’s acknowledgment

on cross-examination that she was not afraid, weakening the

defense’s case.    Thus, the reading of the 252 Statement

prejudicially affected McGhee’s substantial rights.           Further,

the defense had no opportunity to cross-examine Kearney




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regarding her 252 Statement and no ability to rebut its

assertions.

             The third factor therefore weighs in favor of a

conclusion that the error was not harmless beyond a reasonable

doubt.

                        4. Application of Factors

             An evaluation of all three factors indicates that the

prosecutor’s improper reading of Kearney’s 252 Statement was not

harmless beyond a reasonable doubt.         Consequently, there is a

reasonable possibility that the misconduct may have contributed

to McGhee’s conviction, and the conviction must therefore be

vacated.10

                              III. CONCLUSION

             During closing argument, it was improper for the

prosecutor to request, and for the district court to allow, the

reading of Kearney’s 252 Statement, which had not been admitted

      10
            The State contended in its answering brief that McGhee waived any
objection to the reading of the 252 Statement because he did not object at
trial. However, “[p]lain errors or defects affecting substantial rights may
be noticed although they were not brought to the attention of the court.”
Hawaiʻi Rules of Penal Procedure Rule 52(b) (1977). Therefore, even though
there was no objection to the error at trial, this court “may recognize plain
error when the error committed affects substantial rights of the defendant.”
State v. Staley, 91 Hawaiʻi 275, 282, 982 P.2d 904, 911 (1999) (quoting State
v. Cullen, 86 Hawaiʻi 1, 8, 946 P.2d 955, 962 (1997)). The district court in
this case plainly erred when it allowed the prosecutor to read in closing
argument Kearney’s 252 Statement, which was not in evidence. This error
affected McGhee’s substantial rights because it severely compromised McGhee’s
right to a fair trial.




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into evidence.     The 252 Statement was clearly relevant to

proving the terroristic threatening offense; the State’s case

was enhanced by the 252 Statement; and the defense’s case was

significantly prejudiced.      Thus, the error in this case was not

harmless beyond a reasonable doubt.        Accordingly, the district

court’s judgment of conviction and the ICA’s judgment on appeal

are vacated, and the case is remanded to the district court for

further proceedings.

Lianne M. Aoki and                    /s/ Mark E. Recktenwald
William H. Jameson, Jr.
                                      /s/ Paula A. Nakayama
for petitioner
                                      /s/ Sabrina S. McKenna
Brian R. Vincent
                                      /s/ Richard W. Pollack
for respondent
                                      /s/ Michael D. Wilson




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