LA\A/ L¢BHAHY
NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER

TUAN QUOC NGUYEN, Defendant-Appellant
(FC-CR. NO. 06-l~lllO)

NO. 28045

' 23
IN THE INTERMEDIATE COURT OF APPEALS § §§
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and

sTATE oF HAwArI, P1aintiff-Appe11ee, v.
TUAN QUOC NGUYEN, Defendant-Appellant
(Fc-cR. N0. 05-1-i925)

APPEAL FROM THE FAMILY COURT OF THE FIRST CIRCUIT

SUMMARY DISPOSlTION ORDER
(By: Nakamura, C.J., Foley and Fujise, JJ.)

Defendant-Appellant Tuan Quoc Nguyen (Nguyen) appeals
from the June 22, 2006 judgment of conviction entered in the
Family Court of the First Circuit (family court).1 Nguyen was
convicted of two counts of Violation of Order of Protection, a
misdemeanor under Hawaii Revised Statutes (HRS) §§ 586-5.5 and
586-1l(a)(1)(A) (2006), and one count of Terroristic Threatening
in the Second Degree, a misdemeanor under HRS § 707-717(l)

(l993). Nguyen appeals only the terroristic threatening
conviction. His sole argument is that the evidence is
insufficient to establish that a statement he made to his
estranged wife and her male friend outside a courtroom where they
were going to testify against him amounted to a "true threat."

Upon careful review of the record and having given due
consideration to the arguments advanced by the parties, as well
as the relevant law, we resolve Nguyen's appeal as follows:

The standard of review on appeal for sufficiency of the
evidence is substantial evidence. State v. Matavale, 115 Hawafi

l49, l57-58, 166 P.3d 322, 330-31 (2007).

1 The Honorable Patrick W. B0rder presided.

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[S]ubstantial evidence [i]s credible evidence which is of
sufficient quality and probative value to enable a person of
reasonable caution to support a c0nclusion. It is
well-settled that an appellate court will not pass upon
issues dependent upon the credibility of witnesses and the
weight of the evidence; this is the_province of the trier of
fact.

State v. MattiellO, 90 HawaiH.255, 259, 978 P.2d 693, 697 (1999)
(internal quotation marks, citations, and brackets in original
omitted; block quote format changed).

Nguyen's threat amounted to a true threat, one that is
"beyond the pale of [constitutionally] protected vehement/
caustic and unpleasantly sharp attacks" because it "is so
unequivocal, unconditional, immediate and specific as to the
person threatened, as to convey a gravity of purpose and imminent
prospect of eXecution." State v. Chung, 75 Haw. 398, 416-l7, 862
P.2d 1063, 1072-73 (l993) (internal quotation marks and brackets
in original omitted) (quoting United States v. Kelner, 534 F.2d
lO20, 1026-27 (2nd Cir. l976).

Here, Nguyen's threat was unequivocal, unconditional,
immediate, and specific as to the person threatened, Nguyen
specified the intended recipient when he prefaced his threat by
referring to his estranged wife as the prostitute and her male

friend as "the jerk." The friend testified that he did not

-believe Nguyen was joking, nor did Nguyen place a condition on

the threat, The translations of Nguyen's statement offered at
trial differed slightlyg2 but all indicated that Nguyen
threatened a severe beating, conveying his "gravity of purpose"
or, in other words, that Nguyen "meant it." State v. Valdivia,
95 HaWafi 465, 478 n.6, 24 P.3d 66l, 674 n.6 (200l).

Although a true threat requires "imminent prospect of

execution," this prospect can be established by showing that the

2 According to the interpreter for Nguyen's estranged wife, who
witnessed the alleged threat, Nguyen said in Vietnamese, "[A] prostitute, a
jerk. Fuck your mother. I'm going to beat you up until your mother die.
[sic]" The estranged wife testified Nguyen said, "One hooker and one jerk .
. . . And, and I'm going to kill -- I -- miss your mother die. . . . I want
to beat you guys up or something like that." The male friend testified that
Nguyen said, "[A] prostitute and a jerk. I beat you all up till your mother
die, something like that."

NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER

defendant possessed "the apparent ability to carry out the
threat." Valdivia, 95 Hawafi at 477, 24 P.3d at 673 (internal
quotations marks, citation, and emphasis omitted). Nguyen's
ability to carry out the threat can be inferred from the male
friend's testimony that he feared for his safety and well-being.
§§e 1n re M.S., 896 P.2d 1365, 1375 (Calif. 1995) ("A person who,
in making a threat of violence, displays the apparent ability to
carry out the threat ordinarily will also reasonably tend to
induce fear of such violence in the victim.") The male friend
said that he felt that Nguyen might harm him soon, although he
did not think that Nguyen was "going to try to attack . . . at
that moment." The interpreter, who witnessed the alleged
threat, also testified that she was afraid, especially in light
of the fact that Nguyen was in court on an alleged protective
order violation. 1f the family court found the witnesses'
testimony to be credible, the family court could conclude that
fear of Nguyen was reasonable and, consequently, that Nguyen had
the apparent ability to carry out his threat.

Viewing the evidence in the light most favorable to the
prosecution, substantial evidence was adduced on the attendant
circumstances necessary to uphold Nguyen's conviction for
terroristic threatening.

Therefore, the June 22, 2006 judgment of conviction
entered by the Family Court of the First Circuit is affirmed.

DATED= H@n@lulu, Hawai‘i, march 25, 2010.

On the briefs:

&Q'¢f. woman

Karen T. Nakasone, _ Chief Judge
Deputy Public Defender,

for Defendant-Appellant. <;;;;bUZ%¢Z;> ,,_~
Associate Judge

James M. Anderson,
Deputy Prosecuting Attorney,
City and County of Honolulu,

for Plaintiff-Appellee. 32 /dip n

Associate Judg

