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NO. CAAP-19-0000349

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

STATE OF HAWAI#I, Plaintiff-Appellee, v.

GRANT K. KANAKAOLE, also known as

Grant K.P.K. Kanakaole, Defendant-Appellant

APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT

KANE#OHE DIVISION

(CASE NO. 1DCW-18-0001611)

SUMMARY DISPOSITION ORDER

(By: Ginoza, C.J., and Chan and Wadsworth, JJ.)

Defendant-Appellant Grant K. Kanakaole, also known as

Grant K.P.K. Kanakaole (Kanakaole), appeals from the Judgment and

Notice of Entry of Judgment (Judgment), entered on March 28,

2019, in the District Court of the First Circuit, Kane#ohe

Division (District Court).

1/ Following a bench trial, Kanakaole

was convicted of one count of Terroristic Threatening in the

Second Degree (TT2), in violation of Hawaii Revised Statutes

(HRS) § 707-717(1).2/

1/ The Honorable Patricia A. McManaman presided.

2/ HRS § 707-717(1) (2014) provides: 

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 [Terroristic threatening in the first degree].

HRS § 707-715 (2014) defines terroristic threatening by stating,

in relevant part: 

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Electronically Filed

Intermediate Court of Appeals

CAAP-19-0000349

15-SEP-2020

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The charge stemmed from a verbal altercation between

Kanakaole and a woman (Complainant) who allegedly had taken his

prescription glasses and thrown them in the ocean a day or two

earlier. Kanakaole is alleged to have told Complainant during

the altercation that if his wife were there, or found out that

Complainant had gotten rid of his glasses, his wife would shoot

or kill Complainant. On appeal, Kanakaole contends that the

District Court wrongly convicted him based on insufficient

evidence that he made a "true threat." 

Upon careful review of the record and the briefs

submitted by the parties and having given due consideration to

the arguments advanced and the issues raised by the parties, we

resolve Kanakaole's contention as follows and reverse the

Judgment.

I. RELEVANT BACKGROUND

At trial, witness MF testified that on May 15, 2018, he

was in the garage of his mother's residence in Kane#ohe, when he

overheard yelling "[n]ext door on our property," where his

cousins, Jeffrey and Antonio, lived. MF walked down his mother's

driveway and saw Kanakaole's car "[p]arked right in the . . .

driveway on the other side of . . . [o]ur family property." MF

knew Kanakaole through Antonio. Kanakaole did not live on the

family property; he was there visiting. 

MF testified that "[Kanakaole] came walking up towards

his car from the lower part of . . . the property and as he got

closer to his car, [MF] could hear [Kanakaole] yelling at

[Complainant]." MF had no idea who Complainant was. "[MF]

caught the tail end of it and [Kanakaole] was saying something to

the fact that, he kept repeating about his prescription glasses

being thrown in the water or the ocean, and he was saying that if

2/...continue

A person commits the offense of terroristic

threatening if the person threatens, by word or conduct, to

cause bodily injury to another person . . .: 

(1) With the intent to terrorize, or in reckless

disregard of the risk terrorizing, another

person[.]

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my wife was here she would shoot you or kill you . . . for doing

that." Kanakaole was "walking towards his car and he was about

to leave but . . . before he got into the car he yelled at her .

. . and told her that[.]" Kanakaole was "maybe 50 feet or more"

from Complainant when he yelled at her. MF "couldn't see

[Complainant] but [he] could hear her yelling back." 

MF testified that Kanakaole "was pretty upset[.]" 

[Kanakaole] said, fuck, . . . if my wife was here she would shoot

you for doing what you did, you know, throw my glasses in the

water, or ocean, whatever, for doing that. If she was here, she

would shoot you. Or kill you. Either one." MF was about sixty

feet away from Kanakaole when MF heard this. MF heard Kanakaole

say two or three times "if my wife was here, she'd shoot you,

kill you[.]" 

On cross-examination, MF testified that "Kanakaole was

telling [Complainant], if my wife found out that you got rid of

my prescription glasses she would come down here and . . . kill

you or shoot you." MF did not see Kanakaole try to hit, make a

fist at, or point at Complainant. Kanakaole did not display a

gun, and his wife was not in the car or on the property, from

what MF could see. 

Kanakaole also testified. He explained that on the

date of the incident, he dropped off Antonio3/ at McDonald's. 

They had forgotten to close the gate where Antonio lived, so

Antonio told Kanakaole to go back and lock it. When Kanakaole

arrived at the property, he saw Complainant, who had taken his

glasses and was not supposed to be on the property. Kanakaole

told Complainant, "you took my glasses." "And [Complainant]

said, yeah, . . . I took the glasses and threw it in the ocean,

but I got a job now and I'm gonna pay for it."

Kanakaole testified that he was upset, but he did not

hit or push Complainant. As he left the property, he was

"venting," but Complainant was "far away" when he was talking –

"maybe more than like [a] hundred feet away." Kanakaole

"[wasn't] saying like [he was] going to do anything to

3/ In his testimony, Kanakaole referred to "Anthony," who appears to

be the same person identified by MF as Antonio.

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[Complainant,]" and he "wasn't . . . right in her face . . .

screaming at her[.] According to Kanakaole, he did not "yell out

that if [his] wife was there, she would shoot [Complainant], that

she would kill her[.]" When asked what he was yelling, Kanakaole

testified: "I was just saying probably if my wife had a – like a

gun she'd probably shoot me and [Complainant], so it wasn't like

I was threatening her. I was just yelling because I was mad that

she didn't get off of the property when I kept asking her to

leave because I was told to lock the gate." 

The District Court found Kanakaole guilty of the TT2

charge. The court reasoned in part: "Certainly, if somebody

said to you, if my wife or my husband finds out about it he's

going to kill you, that would raise alarm in the normal person." 

The court also found MF to be "wholly credible" and concluded

that "[Kanakaole's] words weren't mumbling. [His] words were

loud, clear, and audible for the State's witness to be able to

hear it and articulate it." 

II. DISCUSSION

Kanakaole argues that the District Court wrongly

convicted him of TT2 based on insufficient evidence "that his

venting constituted a true threat that was so unequivocal,

unconditional, [and] immediate, as to convey a gravity of purpose

and imminent prospect of execution." 

Sufficient evidence to support a conviction requires

substantial evidence as to every material element of the offense

charged. State v. Grace, 107 Hawai#i 133, 139, 111 P.3d 28, 34

(App. 2005) (quoting State v. Ferrer, 95 Hawai#i 409, 422, 23

P.3d 744, 757 (App. 2001)). Substantial evidence is "credible

evidence which is of sufficient quality and probative value to

enable a person of reasonable caution to support a conclusion." 

Id. The evidence must be "viewed in the light most favorable to

the prosecution and in full recognition of the province of the

trier of fact," who must "determine credibility, weigh the

evidence, and draw justifiable inferences of fact." Id.

To establish that Kanakaole committed TT2, the State

was required to prove beyond a reasonable doubt that Kanakaole

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threatened, by word or conduct, to cause bodily injury to

Complainant in reckless disregard of the risk of terrorizing her.

See HRS §§ 702-206(3) (2014), 707–715(1), and 707-717(1). In

other words, the State was required to prove, under the

circumstances presented: (1) Kanakaole's statements that if his

wife were there, or found out that the Complainant got rid of his

glasses, his wife would shoot or kill Complainant (the conduct

element); (2) bore the attributes of a "true threat" (the

attendant circumstances element); and (3) Kanakaole recklessly

disregarded the risk that his remarks would terrorize Complainant

(the requisite state of mind). See In re PP, 133 Hawai#i 235,

240, 325 P.3d 647, 652 (App. 2014).

In State v. Valdivia, 95 Hawai#i 465, 24 P.3d 661

(2001), the Hawai#i Supreme Court discussed the "true threat"

requirement for a terroristic threatening prosecution as follows:

As our discussion reflects, [State v. Chung, 75 Haw.

398, 862 P.2d 1063 (1993)] judicially narrowed the meaning

of the word "threat," as employed in HRS § 707–715, in order

to salvage the statutes defining terroristic threatening

offenses from unconstitutional overbreadth. As a result,

Chung mandates that, in a terroristic threatening

prosecution, the prosecution prove beyond a reasonable doubt

that a remark threatening bodily injury is a "true threat,"

such that it conveyed to the person to whom it was directed

a gravity of purpose and imminent prospect of execution. In

other words, 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. Under

the particular circumstances of Chung, as we have indicated,

the "true threat" was "so unequivocal, unconditional,

immediate, and specific as to the person threatened, as to

convey a gravity of purpose and imminent prospect of

execution."

. . . .

We agree with the California Supreme Court that the

"imminency" required by [United States v. Kelner, 534 F.2d

1020 (2d Cir. 1976)], and hence by Chung, can be established

by means other than proof that a threatening remark will be

executed immediately, at once, and without delay. Rather,

as a general matter, the prosecution must prove that the

threat was objectively susceptible to inducing fear of

bodily injury in a reasonable person at whom the threat was

directed and who was familiar with the circumstances under

which the threat was uttered. Of course, one means of

proving the foregoing would be to establish, as in Chung and

Kelner, that the threat was uttered under circumstances that

rendered it "so unequivocal, unconditional, immediate, and

specific as to the person threatened, as to convey a gravity

of purpose and imminent prospect of execution." But another

would be to establish that the defendant possessed "the

apparent ability to carry out the threat," such that "the

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threat . . . would reasonably tend to induce fear of bodily

injury in the victim."

Id. at 476-77, 24 P.3d 672-73 (citations and original brackets

omitted). 

Viewing the evidence adduced in the strongest light for

the prosecution, we conclude that the evidence was insufficient

to establish that Kanakaole's statements bore the attributes of a

"true threat." On direct examination, MF testified that

Kanakaole said, "[I]f my wife was here she would shoot you or

kill you . . . for doing that." (Emphasis added.) MF later

testified that Kanakaole said, "[I]f my wife was here she would

shoot you for doing what you did, you know, throw my glasses in

the water, or ocean, whatever, for doing that. If she was here,

she would shoot you. Or kill you. Either one." (Emphasis

added.) On cross-examination, MF testified that Kanakaole said, 

"[I]f my wife found out that you got rid of my prescription

glasses she would come down here and . . . kill you or shoot

you." (Emphasis added.) Despite the minor discrepancy in MF's

testimony, the District Court found him credible, and we decline

to pass upon that determination. See In re PP, 133 Hawai#i at

239, 325 P.3d at 651 ("we give full play to the right of the fact

finder to determine credibility" (quoting Grace, 107 Hawai#i at

139, 111 P.3d at 34)); see also State v. Mitchell, 94 Hawai#i

388, 393, 15 P.3d 314, 319 (App. 2000) (minor inconsistencies in

a witness's testimony do not make it incredible as a matter of

law).

Nevertheless, on this record, we cannot conclude that

either variation of 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." Valdivia,

95 Hawai#i at 476, 24 P.3d 672. Both variations of Kanakaole's

alleged threat are conditional, and there was no evidence adduced

at trial that Kanakaole's wife was present on the property when

the remarks were uttered, that she would "find out" about the

missing glasses through Kanakaole or anyone else, or that

Kanakaole (or his wife) possessed the apparent ability to carry

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out the alleged threat. In addition, Kanakaole was at least

fifty feet away from Complainant when he made the remarks, and

was in the process of getting in his car and leaving the scene. 

Finally, and relatedly, there was no evidence adduced that

Complainant felt threatened by Kanakaole's alleged threat.4/

While "actual terrorization" is not required to prove the TT2

offense, the supreme court has stated:

[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 evidence

that the utterance or conduct (1) was a "true threat," or

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

the risk of terrorizing another person. 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.

State v. McGhee, 140 Hawai#i 113, 120, 398 P.3d 702, 709 (2017)

(citation and footnotes omitted). 

Notwithstanding the caustic and hyperbolic language

that Kanakaole used, there is nothing in the record that could

reasonably support a conclusion that the alleged threat was "so

unequivocal, unconditional, immediate[,] and specific as to the

person threatened, as to convey a gravity of purpose and imminent

prospect of execution." Valdivia, 95 Hawai#i at 476, 24 P.3d

672; see also McGhee, 140 Hawai#i at 121 n.9, 398 P.3d at 710 n.9

("[E]vidence 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.'" (quoting Valdivia, 95 Hawai#i

at 476, 24 P.3d at 672) (some internal quotation marks omitted)).

Because there was insufficient evidence of a "true threat," 

there was insufficient evidence that Kanakaole violated HRS

§ 707-717(1). See In re PP, 133 Hawai#i at 246, 325 P.3d at 658.

4/ Indeed, after the District Court found Kanakaole guilty, the court

stated that "in terms of sentencing, . . . I understand what the goal of the

statute is, but I'm not hearing anything here that . . . [Complainant] was

alarmed, that she stuck around. I didn't even necessarily hear that . . .

[MF] was alarmed." 

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III. CONCLUSION

For these reasons, the Judgment and Notice of Entry of

Judgment, entered on March 28, 2019, in the District Court of the

First Circuit, Kane#ohe Division, is reversed.

DATED: Honolulu, Hawai#i, September 15, 2020.

On the briefs:

Walter J. Rodby

for Defendant-Appellant.

Sonja P. McCullen,

Deputy Prosecuting Attorney,

City & County of Honolulu,

for Plaintiff-Appellee.

/s/ Lisa M. Ginoza

Chief Judge

/s/ Derrick H.M. Chan

Associate Judge

/s/ Clyde J. Wadsworth

Associate Judge

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