State v. Hema

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Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
29-JUN-2022
07:48 AM
Dkt. 87 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

STATE OF HAWAI#I, Plaintiff-Appellee, v.
HUGO HEMA, Defendant-Appellant

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CRIMINAL NO. 1CPC-XX-XXXXXXX)

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

Defendant-Appellant Hugo Hema (Hema) appeals from the

April 21, 2021 Judgment of Conviction and Sentence (Judgment),

entered by the Circuit Court of the First Circuit (Circuit

Court).1 Hema was charged with Terroristic Threatening in the

First Degree, in violation of Hawaii Revised Statutes (HRS)

§ 707-716(1)(e) (2014),2 stemming from events that occurred on or

1
The Honorable Catherine H. Remigio presided.
2
HRS § 707-716(1)(e) provides:

§ 707-716 Terroristic threatening in the first
degree. (1) A person commits the offense of terroristic
(continued...)
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about January 7, 2019. After a jury verdict finding Hema guilty

as charged, the Circuit Court sentenced Hema to a term of

imprisonment of five years with credit for time served.

Hema raises five points of error on appeal, contending

that: (1) the Circuit Court violated Hema's Hawai#i Rules of

Penal Procedure (HRPP) Rule 48 and constitutional speedy trial

rights where the court allowed more than a two-year delay before

Hema's trial, citing the COVID-19 pandemic; (2) the Circuit Court

erred by accepting Hema's waiver of his testimonial rights

because Hema clearly did not understand, or misapprehended, the

rights he was giving up; (3) Hema's right to a fair sentence was

2
(...continued)
threatening in the first degree if the person commits
terroristic threatening:

. . . .

(e) With the use of a dangerous instrument or a
simulated firearm. For purposes of this
section, "simulated firearm" means any object
that:
(i) Substantially resembles a firearm;
(ii) Can reasonably be perceived to be a
firearm; or
(iii) Is used or brandished as a firearm[.]

The definition of terroristic threatening is set out in HRS
§ 707-715 (2014) as follows:

§ 707-715 Terroristic threatening, defined . 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; or
(2) With intent to cause, or in reckless
disregard of the risk of causing
evacuation of a building, place of
assembly, or facility of public
transportation.

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violated because he was not provided information or documents

upon which the preparer of the pre-sentence investigation (PSI)

report relied in making a sentencing recommendation to the judge;

(4) Hema's right to a fair sentence was violated where the

Circuit Court sentenced Hema based upon his status as a homeless

person and alleged substance abuse and mental health concerns for

which there was no competent evidence; and (5) the Circuit Court

erred by denying Hema's motion for judgment of acquittal and by

entering a Judgment against Hema despite there being insufficient

evidence presented to support the conviction.

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 Hema's points of error as follows:

(1) Hema's HRPP Rule 48 and constitutional speedy

trial rights argument is grounded in his contention that the 163-

day delay, classified by the Circuit Court as excludable due to

the COVID-19 pandemic, from July 27, 2020, until January 6, 2021,

was not excludable.

"Under the sixth amendment to the United States

Constitution and article I, section 14 of the Hawai#i

Constitution, an accused is guaranteed the right to a speedy

trial in all criminal prosecutions." State v. Lau, 78 Hawai#i

54, 62, 890 P.2d 291, 299 (1995). The Hawai#i Supreme Court has

held:

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Whether the Government has violated an accused's right
to a speedy trial is determined by applying the four-part
test articulated in Barker v. Wingo, 407 U.S. 514, [92 S.Ct.
2182, 33 L.Ed.2d 101] (1972), and adopted by this court in
State v. Almeida, 54 Haw. 443, 509 P.2d 549 (1973), to the
particular facts in each case. The four factors to be
considered in determining whether dismissal is warranted
are: (1) length of the delay; (2) reasons for the delay;
(3) defendant's assertion of his right to speedy trial; and
(4) prejudice to the defendant. Barker, supra [407 U.S.] at
530 [, 92 S.Ct. at 2192]. Because the right to speedy
trial, unlike other rights guaranteed by the [United States
and Hawai#i] Constitution[s], is unusually amorphous and
serves to protect the separate, often conflicting interests
of the accused and of the public in the speedy disposition
of cases, the weight accorded each of these factors is to be
determined on an ad hoc basis. "None of these four factors
is to be regarded 'as either a necessary or sufficient
condition to the finding of a deprivation of the right to a
speedy trial,' but rather 'they are related factors and must
be considered together with such circumstances as may be
relevant.'" State v. English, 61 Haw. 12, 16 n.6, 594 P.2d
1069, 1072–73 n.6 [(1979)], quoting Barker, supra [407 U.S.]
at 533 [, 92 S.Ct. at 2192].

Id. at 62, 890 P.2d at 299 (quoting State v. Wasson, 76 Hawai#i

415, 419, 879 P.2d 520, 524 (1994)).

HRPP Rule 48 states Hawaii's speedy trial rule and

generally requires that a trial be commenced within six months

"from the date of arrest if bail is set or from the filing of the

charge[.]" HRPP Rule 48(b)(1); State v. Alkire, 148 Hawai#i 73,

86, 468 P.3d 87, 100 (2020) ("[m]any states have such speedy

trial rules, and HRPP Rule 48 is our version of a rule so

prescribed"). HRPP Rule 48 provides, in relevant part:

Rule 48. DISMISSAL.

. . . .

(b) By court. Except in the case of traffic offenses
that are not punishable by imprisonment, the court shall, on
motion of the defendant, dismiss the charge, with or without
prejudice in its discretion, if trial is not commenced
within 6 months:

(1) from the date of arrest if bail is set or from
the filing of the charge, whichever is sooner, on any

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offense based on the same conduct or arising from the same
criminal episode for which the arrest or charge was made; or

(2) from the date of re-arrest or re-filing of the
charge, in cases where an initial charge was dismissed upon
motion of the defendant; or

. . . .

(c) Excluded periods. The following periods shall be
excluded in computing the time for trial commencement:

(1) periods that delay the commencement of trial and
are caused by collateral or other proceedings concerning the
defendant, including but not limited to penal
irresponsibility examinations and periods during which the
defendant is incompetent to stand trial, pretrial motions,
interlocutory appeals and trials of other charges;

(2) periods that delay the commencement of trial and
are caused by congestion of the trial docket when the
congestion is attributable to exceptional circumstances;

(3) periods that delay the commencement of trial and
are caused by a continuance granted at the request or with
the consent of the defendant or defendant's counsel;

(4) periods that delay the commencement of trial and
are caused by a continuance granted at the request of the
prosecutor if:

(i) the continuance is granted because of the
unavailability of evidence material to the prosecution's
case, when the prosecutor has exercised due diligence to
obtain such evidence and there are reasonable grounds to
believe that such evidence will be available at a later
date; or

(ii) the continuance is granted to allow the
prosecutor additional time to prepare the prosecutor's case
and additional time is justified because of the exceptional
circumstances of the case;

(5) periods that delay the commencement of trial and
are caused by the absence or unavailability of the
defendant;

(6) the period between a dismissal of the charge by
the prosecutor to the time of arrest or filing of a new
charge, whichever is sooner, for the same offense or an
offense required to be joined with that offense;

(7) a reasonable period of delay when the defendant
is joined for trial with a codefendant as to whom the time
for trial has not run and there is good cause for not
granting a severance; and

(8) other periods of delay for good cause.

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"Determining whether the HRPP Rule 48 period has run

. . . involves a two-step process: first, ascertaining the date

on which the clock started to run under HRPP Rule 48(b)(1); and

second, calculating any excludable periods under HRPP Rule

48(c)." State v. Cenido, 89 Hawai#i 331, 334, 973 P.2d 112, 115

(App. 1999). Hema contends that the Circuit Court plainly erred

with respect to the second step, when it excluded 163 days due to

the pandemic.

Hema acknowledges that "several other jurisdictions

have faced similar questions and have found that such delays due

to the pandemic are excludable."3 Nonetheless, Hema argues,

inter alia, that the pandemic had already been of consequence in

Hawai#i for roughly five months; in-person hearings had resumed

on O#ahu by July 2020; the pandemic was worse by the time Hema's

trial occurred; and it "defie[d] all logic that it took our

judiciary the better part of all of 2020 to come up with this

basic fix, and, the fact that it took our judiciary nine months

to come up with this process renders the delay not excludable and

thereby confirms that [Hema's] constitutional and statutory

rights were violated."

3
See, e.g., State ex rel. Porter v. Farrell, 858 S.E.2d 897, 908
(W. Va. 2021) (excluding the term during which a judicial emergency had been
declared due to COVID-19 from the speedy trial timing calculation); State v.
Brown, 964 N.W.2d 682, 692-93 (Neb. 2021) (finding trial court's continuances
based on COVID-19 were for good cause and did not violate constitutional
rights to speedy trial); Hernandez-Valenzuela v. Superior Court, 291 Cal.
Rptr. 3d 154, 168 (Cal. Ct. App. 2022) (noting even when courts reopened they
were unable to operate at usual capacity due to pandemic restrictions
constituting good cause for delay).

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As noted by the State, the Chief Justice of the Hawai#i

Supreme Court (Chief Justice) issued an Order Regarding Trials on

April 17, 2020, postponing all civil, criminal, and family court

trials due to the COVID-19 pandemic. See Order Regarding Trials,

In the Matter of the Judiciary's Response to the COVID-19

Outbreak, SCMF-XX-XXXXXXX at 2 (April 17, 2020). The Chief

Justice issued additional orders regarding jury trials, including

on May 22, 2020; June 23, 2020; August 5, 2020; September 4,

2020; and September 28, 2020. The September 28, 2020 Order

Regarding Jury Trials postponed all jury trials in the First

Circuit "to dates after December 11, 2020, unless otherwise

ordered" and provided that "[t]he First Circuit may resume

conducting jury trials beginning on December 14, 2020." See

Order Regarding Jury Trials, In the Matter of the Judiciary's

Response to the COVID-19 Outbreak, SCMF-XX-XXXXXXX at 3 (Sept.

28, 2020) (emphasis added). Thus, the First Circuit was unable

to conduct jury trials from April 17, 2020, through December 14,

2020.

Hema's trial was set to begin on December 21, 2020, but

was then postponed due to Hema being transported by a sheriff who

tested positive for COVID-19, and therefore, it was determined

that Hema had close contact with a person that had tested

positive for COVID-19 and could not enter the courthouse. The

trial call and jury pre-selection was reset to January 6, 2021,

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with jury selection and trial to begin on January 14, 2021.

Hema's trial commenced accordingly.

Based on the extraordinary circumstances of the COVID-

19 pandemic, the postponement of jury trials in Hawai#i, and

Hema's close contact with a person who tested positive for COVID-

19, we conclude that the 163 days from July 27, 2020, to January

6, 2021, were excludable for good cause under HRPP Rule 48(c)(8),

and the Circuit Court did not plainly err in failing to sua

sponte dismiss the charge against Hema. Hema makes no separate

arguments concerning his constitutional speedy trial rights, and

we conclude that the Circuit Court did not plainly err in failing

to sua sponte dismiss the charge against Hema on such

constitutional grounds.

(2) Hema contends that the Circuit Court erred when it

accepted Hema's waiver of his right to testify because his

responses to the Circuit Court's colloquy questions show that

Hema did not fully understand what rights he was waiving.

It is well-established that "trial courts must advise

criminal defendants of their right to testify and must obtain an

on-the-record waiver of that right in every case in which the

defendant does not testify." Tachibana v. State, 79 Hawai#i 226,

236, 900 P.2d 1293, 1303 (1995). This requires a trial court to

advise a defendant, inter alia: "(1) that they have a right to

testify, (2) that if they want to testify, no one can prevent

them from doing so, and (3) that if they testify, the prosecution

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will be allowed to cross-examine them." State v. Martin, 146

Hawai#i 365, 378, 463 P.3d 1022, 1035 (2020) (footnote omitted)

(citing Tachibana, 79 Hawai#i at 226 n.7, 900 P.2d at 1303 n.7).

The trial court must "engag[e] in a true 'colloquy'

with the defendant." State v. Celestine, 142 Hawai#i 165, 170,

415 P.3d 907, 912 (2018) (quoting State v. Han, 130 Hawai#i 83,

90-91, 306 P.3d 128, 135-36 (2013)). The supreme court has

explained that "[t]his portion of the colloquy consists of a

verbal exchange between the judge and the defendant 'in which the

judge ascertains the defendant's understanding of the proceedings

and of the defendant's rights.'" Id. (citations omitted). Thus,

to accomplish a "true colloquy," the supreme court has "suggested

that the trial court engage in a verbal exchange with the

defendant at least twice during the colloquy in order to

ascertain the defendant's 'understanding of significant

propositions in the advisement.'" Id. Accordingly,
[t]he first time is after the court informs the defendant of
the right to testify and of the right not to testify and the
protections associated with these rights. The purpose of
this exchange is for the court to ascertain the defendant's
understanding of these important principles.

The second time we suggested a verbal exchange should
occur is after the court indicates to the defendant its
understanding that the defendant does not intend to testify.
This inquiry enables the court to determine whether the
defendant's decision to not testify is made with an
understanding of the principles that have been explained to
the defendant. As part of this inquiry, the trial court
elicits responses as to whether the defendant intends to not
testify, whether anyone is forcing the defendant not to
testify, and whether the decision to not testify is the
defendant's.

Id. at 170-71, 415 P.3d 912-13 (internal citations and footnotes

omitted). As such, "[a] defendant's right to testify is violated

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when the colloquy does not establish an objective basis for

finding that the defendant knowingly, intelligently, and

voluntarily gave up their right to testify." Martin, 146 Hawai#i

at 379, 463 P.3d at 1036 (internal brackets and quotations

omitted) (quoting Han, 130 Hawai#i at 91, 306 P.3d at 136).

"Courts look to the totality of the facts and circumstances to

determine whether a waiver of the right to testify was

voluntarily and intelligently made." Id. (citation omitted).

Generally, "salient facts, such as mental illness or language

barriers, require that a court effectively engage the defendant

in a dialogue that will effectuate the rationale behind the

colloquy and the on-the-record waiver requirements." Id. at 380,

463 P.3d at 1037 (internal brackets and quotations omitted).

Hema focuses on the following portion of the Circuit

Court's ultimate colloquy to argue that Hema did not understand

his rights or waiver of his right to testify:
THE COURT: Has anyone put any pressure on you, made
any kind of threats or made any promises to get you to say
you don't intend to testify, but that you really want to
testify?

[HEMA]: No. It was my decision and my decision
alone, and if I had to testify, I will testify, but if not,
then I will remain silent.

THE COURT: Well, I guess, you don't have to testify.

[HEMA]: That's right, and it was my choice not to
testify, I should waive that.

THE COURT: Okay.

[HEMA]: But if I must testify, I will.

THE COURT: But that decision as to wether you must
testify is between you, your decision --

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[HEMA]: Yes.

THE COURT: That's a decision subject to different
opinions; right?

[HEMA]: Yeah.

THE COURT: So you understand that the Court is not
saying you must testify.

[HEMA]: Yes.

THE COURT: So when you say, If I must testify, I
will, you're talking about some decision that you have made
with the assistance of your attorney?

[HEMA]: Yes, yes. It's just, um, my personal opinion
about what's happening here.

THE COURT: Okay, you don't have to say anything
further.

[HEMA]: Okay.

THE COURT: I just want to make sure that you
understand.

[HEMA]: Yes, yes.

THE COURT: Do you want to testify?

[HEMA]: I will waive.

(Emphasis added).

Hema argues that this portion of the colloquy reflects

his lack of understanding. However, Hema reiterated multiple

times that he did not want to testify and intended to waive that

right. While there may have been some ambiguity when Hema stated

"if I had to testify, I will testify, but if not, then I will

remain silent," the Circuit Court sought further clarification.

The Circuit Court then reiterated that it wanted to ensure that

Hema understood, and again asked him if he wanted to testify, and

Hema responded "I will waive." Thus, we conclude that the record

reflects that Hema knowingly, intelligently, and voluntarily

waived his right to testify.

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(3 & 4) Hema contends that his right to a fair

sentence was violated when he was not provided information/

documents used by the preparer of the PSI report. Specifically,

Hema points to the PSI report referencing the National Crime

Information Center (NCIC) report, which was purportedly not

provided to Hema. Hema acknowledges that he did not raise the

PSI/NCIC issue below. Hema further argues that his right to a

fair sentence was violated because the Circuit Court's sentence

was based on: (1) his status as a homeless person; (2) an

alleged and non-existent drug problem, based solely on drug

charges he had received 15-20 years prior; and (3) an alleged and

non-existent mental-health problem.

In State v. Kong, the appellant similarly argued that

the lower court erred when it based its sentencing on, inter

alia, fifteen-year-old crimes contained in the PSI report. 131

Hawai#i 94, 104, 315 P.3d 720, 730 (2013). Kong did not raise

the issue below, and the supreme court declined to utilize plain

error review in addressing an "alleged inaccuracy in [a] PSI

report" because the record indicated that "the circuit court

based its imposition of a consecutive sentence on [appellant]'s

'extensive' criminal record as a whole and not solely on the

specific convictions that [the appellant] alleges are invalid."

Id. at 107, 315 P.3d at 733. The supreme court further reasoned

that Kong was given ample time to review the PSI report, and he

failed to provide a good faith challenge on the record stating

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the bases for challenging certain aspects of the PSI report,

which he then sought to raise on appeal. Id. The supreme court

concluded, inter alia, that it should not utilize plain error

review to address the issue. Id.

Here, we similarly decline to conclude there was plain

error based on Hema's contention regarding the NCIC report.

First, as stated above, Hema did not raise the issue in the

Circuit Court. Second, the PSI report outlined the assessment

factors for sentencing, including the assessment that he had

substance abuse and/or alcohol problems based on collateral

information in the NCIC, and it clearly identified the

information relied on. Hema declined to provide information

regarding any prior illicit drug use, but the PSI report noted

that according to NCIC, Hema had prior drug-related arrests for

which he received a term of diversion. Third, Hema did dispute

other aspects of the PSI report, indicating that he had ample

time to review it, including the substance abuse and alcohol

abuse factor for sentencing. However, Hema at no point argued

that the NCIC report should be disclosed. Lastly, while the

Circuit Court properly considered the PSI report, the record as a

whole establishes that the Circuit Court did not impose its

sentence on Hema based solely on the NCIC report. Instead, the

Circuit Court considered, inter alia, Hema's prior convictions as

outlined in the PSI report, his character and attitude, and

mental health concerns. Therefore, it cannot be said that Hema's

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substantial rights were affected by the Circuit Court's

consideration of the NCIC data contained in the PSI report. See

Kong, 131 Hawai#i at 107, 315 P.3d at 733.

Hema further argues that the Circuit Court abused its

discretion in sentencing Hema "to the harshest sentence available

based almost solely on 1) [Hema]'s status as a homeless person,

2) an alleged and non-existent drug problem, based solely on drug

charges he had received 15-20 years prior, and 3) an alleged and

non-existent mental-health problem where the court was concerned

that [Hema] did not provide mental-health consent forms to the

pre-sentence officer."

"[A]bsent clear evidence to the contrary, it is

presumed that a sentencing court will have considered all factors

before imposing concurrent or consecutive terms of imprisonment

under HRS § 706-606 [2014]." Kong, 131 Hawai#i at 102, 315 P.3d

at 728 (quoting State v. Hussein, 122 Hawai#i 495, 503, 229 P.3d

313, 321 (2010)). A "sentencing court 'is not required to

articulate and explain its conclusions with respect to every

factor listed in HRS § 706-606.'" Lewi v. State, 145 Hawai#i

333, 350, 452 P.3d 330, 347 (2019) (citation and footnote

omitted).

HRS § 706-606 (2014) provides:

§ 706-606 Factors to be considered in imposing a
sentence. The court, in determining the particular sentence
to be imposed, shall consider:
(1) The nature and circumstances of the offense and
the history and characteristics of the
defendant;

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(2) The need for the sentence imposed:
(a) To reflect the seriousness of the offense,
to promote respect for law, and to provide
just punishment for the offense;
(b) To afford adequate deterrence to criminal
conduct;
(c) To protect the public from further crimes
of the defendant; and
(d) To provide the defendant with needed
educational or vocational training,
medical care, or other correctional
treatment in the most effective manner;
(3) The kinds of sentences available; and
(4) The need to avoid unwarranted sentence
disparities among defendants with similar
records who have been found guilty of similar
conduct.

Hema argues that the Circuit Court abused its

discretion in taking issue with Hema's refusal to sign consent

forms to release records that were over fifteen years old

pertaining to counseling and sentencing Hema based upon his right

"to keep very old matters private." However, the Circuit Court

expressly stated that while the mental health concerns were part

of it, the primary concern of the Circuit Court was Hema's

"attitude of I'm right and I'm gonna do it again." The Circuit

Court noted that Hema refused to provide much of any information,

not just information on his mental health, except that he

disagreed with the jury's verdict, that he was in the right, and

that he "intend[ed] to continue on the way that [he] had before

this case occurred." The Circuit Court found this sparse

information concerning.

Hema also contends that the Circuit Court abused its

discretion in considering his attitude, that the issue was likely

to reoccur, and his previous time in jail. These arguments are

without merit. As provided in HRS § 706-606, the sentencing

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court must consider "[t]he nature and circumstances of the

offense and the history and characteristics of the defendant."

In determining whether probation was appropriate under HRS § 706-

621 (2014) factors, the Circuit Court stated:
The factors that I need to dis –- determine whether
probation is a -– applicable in this case, 706-621, I have
to find -- I have to look at whether [HEMA]'s conduct caused
or threatened serious harm, and by the nature of the offense
it did.

Whether [HEMA] acted under strong provocation.
According to the jury he did not. And the jury disregarded
the possibility that [HEMA] acted in some kind of self-
defense.

Whether there was substantial grounds tending to
excuse or justify the conduct. There were not.

Whether the victim induced or facilitated its
commission. Again, the jury did not find that to be the
case.

Whether [HEMA] has a history of prior delinquency or
criminal activity or has led a law-abiding life for a
substantial period of time before the commission of the
present crime. The last time [HEMA] was in trouble was I
believe that theft case, in California, and that case
occurred in 2006, a theft in the fourth degree. In that
case he did not show up for a proof of compliant and the --
compliance, a bench warrant was served. No further action
on the contempt of court because they lost jurisdiction
based on the time that passed. But that was 14 years ago.

The Circuit Court also considered the HRS § 706-606

factors at sentencing, stating:
THE COURT: 706-606 factors to be considered in
imposing a sentence. First, the nature and sub -- and
circumstances of the offense, history and characteristics of
the defendant. So I think we -- [HEMA] and I have got
through that already. The need for the sentence imposed, A,
to reflect the seriousness of the offense, to promote
respect for the law, provide just punishment for the
offense; B, to afford adequate deterrence to criminal
conduct; C, to protect the public from further crimes of the
defendant; and, D, to provide the defendant with needed
educational or vocational training, medical care, or other
correctional treatment in the most effective manner. And,
finally, the kinds of sentences available and the need to
avoid unwarranted sentence disparities.

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The court is left -- and I -- I have to say this,
unfortunately, because this is not what I wanted to do today
-- with an in -- there's no way that I can -- I can justify
placing Mr. Hema on probation. Therefore the court is gonna
order Mr. Hema to be sentenced as follows:

. . . .

All right. Mr. Hema, the final judgment and sentence
of this court is that you be committed to the custody of the
Department of Public Safety for a term of five years with
credit for time served[.]

A trial court retains broad discretion in sentencing a

defendant, and here, the Circuit Court properly evaluated the

factors in HRS § 706-621 and HRS § 706-606. We conclude that the

Circuit Court did not abuse its discretion in sentencing Hema.

(5) Hema argues that the Circuit Court erred in

denying Hema's motion for judgment of acquittal because the

prosecution failed to present sufficient evidence to sustain the

charge. Hema contends that "the facts do not show that the

threat was so 'clear, unconditional, immediate, and specific' as

to communicate a seriousness of purpose and an imminent

likelihood, and, neither do the facts show that the threat was so

'clear, unconditional, immediate, and specific' as to show that

[Hema] possessed the apparent ability to carry out the threat."

Hema points to the testimony of complaining witness Melandrew

Taban (Taban) and witness Michael White (White), providing that

Hema "was at no point in time closer than six feet" from Taban

and that Hema backed away from Taban. Hema essentially argues

that although Taban may have felt scared when Hema pulled out a

knife about ten inches long from the front of his pants, there

was no true threat because of Hema's distance from Taban and

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Hema's conduct of moving away from Taban. The State argues, in

light of all of the circumstances evidenced by the trial

testimony, there was sufficient evidence to support a finding

that when Hema displayed the knife to Taban, it constituted a

"true threat" of bodily injury to Taban.

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

(2001), the supreme court addressed a similar argument. The

defendant in Valdivia was also charged with terroristic

threatening in the first degree. Id. at 470, 24 P.3d at 667.

The supreme court noted that for such terroristic threatening

charges, "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." Id. at 476, 24 P.3d at 672. The

prosecution must also prove beyond a reasonable doubt, "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.'" Id. (citation

omitted).

The defendant in Valdivia had "been pepper sprayed,

arrested, handcuffed, and transported to a hospital" after

dragging a police officer from a vehicle. Id. at 476, 24 P.3d at

672. While at the hospital, the defendant, who was seated and

handcuffed with his hands behind his back, told a police officer

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that he was "gonna kill [him]." Id. On appeal, Valdivia argued

– like Hema – that a person of reasonable caution could not

conclude that his remarks to the police officer were so

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

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

prospect of execution," and thus, they did not constitute a "true

threat." Id. at 474, 24 P.3d at 670. Also similar to Hema's

argument, the crux of Valdivia's argument was that there was "no

realistic prospect [he] would imminently execute the literal

words of his [remark] or that he had the ability to do so." Id.

The supreme court rejected this argument, explaining that the

defendant's argument, "i.e., that because the prosecution's

evidence did not establish that there was a possibility that the

evil [the defendant] threatened (literally killing [a police

officer]) would be accomplished without temporal delay, he

therefore cannot be guilty of terroristic threatening - is

flawed." Id.

Instead, the supreme court held that the prosecution

adduced substantial evidence and that the defendant did utter a

"true threat" even though he was handcuffed and seated while

making the threat, noting that the defendant had already resisted

pepper spray and it took four police officers to physically

apprehend him. Id. at 477, 24 P.3d at 673. Thus, the supreme

court explained that a jury could find the defendant "possessed

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the apparent ability to carry out his threat and that the threat

would reasonably tend to induce fear of bodily injury." Id.

Based on the rationale articulated in Valdivia, we

conclude that the State adduced substantial evidence from which a

person of reasonable caution could conclude that Hema's threat,

by word or conduct, was "clear, unconditional, immediate, and

specific." Hema makes the same sort of flawed argument as the

defendant in Valdivia, i.e., that because Hema was "at no point

in time closer than six feet from Taban" and that Hema was

backing away with his knife drawn, that the threat was not

"clear, unconditional, immediate, and specific." Taban testified

that he confronted Hema while Hema was digging through a

dumpster, that Hema got mad and cursed at Taban, then Hema pulled

out a knife from the front of his pants and raised it up over his

head, and Taban felt scared. White testified that Hema stated

"I'm tired of this fucking shit" and that as he backed away from

Taban, he pulled out a knife. Although Hema stood between six and

ten feet from Taban, a jury could find, inter alia, that Hema

possessed the apparent ability to carry out his threat and

constituted a true threat of bodily injury. See Valdivia, 95

Hawai#i at 477, 24 P.3d at 673. Accordingly, we conclude that

the Circuit Court did not err in denying Hema's motion for

judgment of acquittal.

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For these reasons, the Circuit Court's April 21, 2021

Judgment is affirmed.

DATED: Honolulu, Hawai#i, June 29, 2022.

On the briefs: /s/ Lisa M. Ginoza
Chief Judge
Kai Lawrence,
(Kai Law), /s/ Katherine G. Leonard
for Defendant-Appellant. Associate Judge

Brian R. Vincent, /s/ Keith K. Hiraoka
Deputy Prosecuting Attorney, Associate Judge
City and County of Honolulu,
for Plaintiff-Appellee.

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