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                                                  Electronically Filed
                                                  Intermediate Court of Appeals
                                                  CAAP-XX-XXXXXXX
                                                  29-MAY-2020
                                                  08:05 AM




                             NO. CAAP-XX-XXXXXXX

                  IN THE INTERMEDIATE COURT OF APPEALS

                           OF THE STATE OF HAWAI#I


                  STATE OF HAWAI#I, Plaintiff-Appellee,
                                    v.
                 DANIEL W. IRELAND, Defendant-Appellant


          APPEAL FROM THE DISTRICT COURT OF THE THIRD CIRCUIT
                          SOUTH KOHALA DIVISION
                       (CASE NO. 3DCW-XX-XXXXXXX)
                       (CASE NO. 3DCW-XX-XXXXXXX)


                        SUMMARY DISPOSITION ORDER
       (By:    Ginoza, Chief Judge, Leonard and Wadsworth, JJ.)

              Defendant-Appellant Daniel W. Ireland (Ireland) appeals
from a Judgment and Notice of Entry of Judgment (Judgment) in
Case No. 3DCW-XX-XXXXXXX,1 filed on August 16, 2018, by the
District Court of the Third Circuit, South Kohala Division
(District Court).2       The District Court convicted Ireland of three
counts of Terroristic Threatening in the Second Degree (TT2), in




      1
         Ireland also appealed from a Judgment and Notice of Entry of Judgment
entered on August 16, 2018, in Case No. 3DCW-XX-XXXXXXX, but does not raise
any issues on appeal regarding this judgment. We therefore need not address
the judgment in Case No. 3DCW-XX-XXXXXXX.
      2
          The Honorable Bruce Larson presided.
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violation of Hawai#i Revised Statutes (HRS) § 707-717.3 The
complainant in Count 2 was KI, a minor, the complainant in Count
3 was LW, a minor, and the complainant in Count 4 was CA, a minor
(collectively referred to as Complainants).4
          The charges stem from a verbal altercation between
Ireland and the Complainants in and near a park pavilion, where
the Complainants were skateboarding and playing music on a
speaker while Ireland was on his cell phone. Ireland is alleged
to have told the Complainants that he would shoot them with a gun
or rifle that he had in his nearby van. Ireland argues the
District Court wrongly convicted him based on insufficient
evidence that he made a "true threat."
          We affirm the Judgment.
          In reviewing Ireland's conviction for sufficiency of
the evidence, we consider the evidence adduced in the trial court
in the strongest light for the prosecution, and "[t]he test on
appeal is not whether guilt is established beyond a reasonable
doubt, but whether there was substantial evidence to support the
conclusion of the trier of fact." State v. Kalaola, 124 Hawai#i
43, 49, 237 P.3d 1109, 1115 (2010) (citations omitted).
          To establish that Ireland committed TT2, the State was
required to prove beyond a reasonable doubt that Ireland
threatened, by word or conduct, to cause bodily injury to




      3
         HRS § 707-717(1) (2014) provides: "A person commits the offense of
[TT2] if the person commits terroristic threatening other than as provided in
section 707-716."

      Further, HRS § 707-715 (2014) defines terroristic threatening by
stating, in relevant part:
             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:
                   (1)   With the intent to terrorize, or in reckless disregard
                         of the risk of terrorizing, another person; . . . .
      4
          The District Court dismissed Count 1 with prejudice.

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Complainants in reckless disregard of the risk of terrorizing
them. See HRS §§ 702-206(3) (2014), 707–715, and 707-717(1). In
other words, the State was required to prove, under the
circumstances presented: Ireland's statement that he was going to
shoot Complainants with a gun he had in his van (the conduct
element); bore the attributes of a "true threat" (the attendant
circumstances element); and Ireland recklessly disregarded the
risk that his remarks would terrorize Complainants (the requisite
state of mind). See In re PP, 133 Hawai#i 235, 240, 325 P.3d
647, 652 (App. 2014).
          To prove a true threat, "the prosecution must prove
beyond a reasonable doubt that the alleged threat 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 remarks were uttered." State v.
Valdivia, 95 Hawai#i 465, 476, 24 P.3d 661, 672 (2001).
          CA testified that Ireland was really mad and aggressive
and cussed at him and his friends. While the boys packed up
their things, Ireland continued cussing and complaining and then
said he had a gun in his van and would shoot them. CA was about
four feet away from Ireland and scared. He believed Ireland
actually would shoot them. Ireland said if they tried to run
away, he could shoot them while they ran because his gun had a
scope on it. Ireland took a few steps toward his van, as if to
threaten them. This made CA more scared because Ireland was
serious, and CA believed Ireland was actually "capable of doing
it." The boys stopped and said, "No, no, no" and quickly walked
away.
          LW testified that Ireland was mad and yelled and swore
at Complainants. Ireland was standing about ten to fifteen feet
away when he said he would go to his van to grab a gun and shoot
them. Ireland turned around and started walking toward his van,




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and the boys got "super scared" and "freaked out." LW believed
Ireland was going to go to the van and shoot them. Ireland said
"don't even try to run" because the rifle in his van had a scope
and he could still shoot them. The boys were scared. The
distance between the pavilion and van was about equal to the
distance between home plate and first base [on a baseball field].
The boys went home.
           KI testified that Ireland was angry and told them to
leave now. The boys started to leave, and Ireland said, "If you
don't leave then I have a rifle in my van with a scope on it, and
I will shoot you if you try to run." KI took this to mean
Ireland would shoot them whether they left or not, and he could
shoot them if they left because he had a scope on his rifle.
Ireland started walking toward his van. KI felt threatened, like
Ireland was really going to shoot him and his friends. Ireland
got close to the van, and the boys were so scared, they ran to
LW's house.
          Ireland points out that there was no evidence he had a
gun in his hand, and Officer Nagata did not see a reason to apply
for a warrant or ask for consent to search Ireland or the van for
firearms. However, the State did not have to prove that Ireland
could actually carry out his threat. "It is not a material
element of terroristic threatening that defendant means what he
says by his threat; it is the utterances themselves that are
material." State v. Chung, 75 Haw. 398, 407 n.6, 862 P.2d 1063,
1068 n.6 (1993).
          Ireland notes that the van was at least a few yards
away from the pavilion and he stopped walking toward it when
Complainants said "No." However, imminency "can be established
by means other than proof that a threatening remark will be
executed immediately, at once, and without delay." Valdivia, 95
Hawai#i at 477, 24 P.3d at 673. It was sufficient for the State
to "establish that the defendant possessed the apparent ability




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to carry out the threat, such that the threat would reasonably
tend to induce fear of bodily injury in the victim." Id.
(internal quotation marks, ellipsis, and citation omitted). The
Complainants testified that Ireland had threatened the ability to
shoot them even as they walked or ran away, given that his gun
had a scope.
          Ireland argues that the evidence was insufficient to
show that his threat scared Complainants. He points out that LW
testified that Complainants did not think Ireland was serious at
first and continued skateboarding. Ireland also maintains that
he did not exhibit any physical aggressiveness, whereas
Complainants approached him in the pavilion, played their music
loudly, and jumped with their skateboards on and off the table
where he was sitting.
          To the contrary, Complainants testified that Ireland
approached the pavilion after they had started skateboarding
there, Ireland became mad or angry, and Complainants became very
scared when Ireland started to walk toward his van because it
showed he was serious about shooting them. "[W]e give full play
to the right of the fact finder to determine credibility, weigh
the evidence, and draw justifiable inferences of fact." In re
PP, 133 Hawai#i at 239, 325 P.3d at 651.
          Ireland argues that he did not convincingly express an
intention of carrying out his threat and maintains that it was no
more than an expression of anger and frustration, made without
any intention or belief that it would be taken literally or
seriously. However, as discussed, the State did not need to show
that Ireland intended to terrorize Complainants, only that he
recklessly disregarded the risk that his remarks would do so.
See HRS § 707-715.




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          Therefore, IT IS HEREBY ORDERED that the August 16,
2018 Judgment and Notice of Entry of Judgment, in Case No. 3DCW-
XX-XXXXXXX, entered by the District Court of the Third Circuit,
South Kohala Division, is affirmed.
          DATED: Honolulu, Hawai#i, May 29, 2020.


On the briefs:                        /s/ Lisa M. Ginoza
                                      Chief Judge
Melanie R. Ragmat,
Deputy Public Defender,               /s/ Katherine G. Leonard
Office of the Public Defender,        Associate Judge
for Defendant-Appellant.
                                      /s/ Clyde J. Wadsworth
Leneigha S. Downs,                    Associate Judge
Deputy Prosecuting Attorney,
County of Hawai#i,
for Plaintiff-Appellee.




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