§707-717 Terroristic threatening in the second degree. (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. [L 1979, c 184, pt of §1(2); gen ch 1993]

Case Notes

Not a lesser included offense of attempted extortion in the second degree. 70 H. 456, 776 P.2d 392 (1989).

The requirement of a "true threat" jury instruction is not limited to terroristic threatening prosecutions that are based solely upon verbal conduct, but rather applies in all such prosecutions, whether the threat is proved by evidence of verbal expression, motor behavior, or a combination thereof. 106 H. 136, 102 P.3d 1034 (2005).

Terroristic threatening in second degree can be an offense included in terroristic threatening in first degree; trial court's failure to instruct jury on the lesser included offense was not plain error, where defendant contended there was a rational basis in the record for jury to decide that, although defendant made a terroristic threat, defendant did not do so with a dangerous instrument as defined in §707-700. 10 H. App. 584, 880 P.2d 213 (1994).

Defendant's words, yelling at dirt bikers to get off defendant's land, combined with defendant's conduct of repeatedly discharging defendant's shotgun, were sufficient evidence to sustain defendant's conviction under this section. 106 H. 62 (App.), 101 P.3d 671 (2004).

Where minor defendant made threats to an adult who was not present and later approached the adult in an aggressive manner, there was insufficient evidence of a "true threat" and insufficient evidence that minor defendant possessed the requisite culpable state of mind. 133 H. 235 (App.), 325 P.3d 647 (2014).

COMMENTARY ON §§707-716 AND 707-717

Act 184, Session Laws 1979, upgraded the offense of terroristic threatening from a misdemeanor to a class C felony in four aggravated situations. The legislature felt that raising the penalty would provide an incentive for vigorous prosecution and act as a deterrent against such offenses. House Standing Committee Report No. 673. For discussion of a "common scheme" under §707-716, see Senate Standing Committee Report No. 902.

Act 131, Session Laws 1989, amended §707-716 to establish the offense of terroristic threatening of an educational worker to make our school environments safer and to better enable prosecuting attorneys to obtain convictions. Senate Standing Committee Report No. 998.

Act 230, Session Laws 2006, amended §707-716(1) to limit the charge of terroristic threatening in the first degree against a public servant to actions arising out of the performance of the public servant's official duties. House Standing Committee Report No. 665-06.

Act 79, Session Laws 2007, amended §707-716(1) by establishing a criminal offense of terroristic threatening in the first degree if a person commits terroristic threatening against any emergency medical services personnel [engaged in the performance of duty]. The legislature found that emergency medical services personnel are at a heightened risk of personal injury or death from patients and others with whom they are in contact in the course of their work. By the very nature of the job, emergency medical services personnel respond to people in distressful situations, which include incidences of criminal violence, family disputes, and drunken brawls. Although the legislature acknowledged that much of the violence promulgated from explosive situations involving agitated people who lack momentary self-control, the legislature believed that emergency medical [services] personnel should be afforded the same protection as correctional workers and educational workers. Senate Standing Committee Report No. 1244.

Act 146, Session Laws 2010, amended §707-716(1) by expanding the class of emergency services providers protected against terroristic threatening to include, among others, physicians, physician's assistants, nurses, and nurse practitioners providing medical services in a hospital emergency room. The legislature found that emergency medical workers serve an indispensable public need but face a high level of risk in the line of duty. Nationally, studies show that between thirty-five per cent and eighty per cent of hospital staff have been physically assaulted at least once and that nurses are at an increased risk for violence while on duty. The legislature found that extending the offense of assault in the second degree to include actions against emergency services providers in emergency rooms is a logical extension of the existing provisions covering emergency response personnel. Senate Standing Committee Report Nos. 2989 and 2765, House Standing Committee Report No. 466-10, Conference Committee Report No. 33-10.

Act 63, Session Laws 2011, amended §707-716(1) by establishing first degree terroristic threatening for a person who threatens a person: (1) from whom the defendant has been restrained, by order of any court, from contacting, threatening, or physically abusing pursuant to domestic abuse protective orders; or (2) who is being protected by a police officer ordering the defendant to leave the premises of the protected person, during the effective period of the order. The legislature found that domestic violence victims need added protection under Hawaii law. Restraining orders or orders from police officers to abusers to leave the premises are intended to remove abusers from the vicinity of domestic violence victims and provide safety. The legislature believed that domestic violence victims are particularly vulnerable when they attempt to disengage from their abusers and at that time, violence and the threat of violence are at the most extreme levels. Increasing the penalties against abusers in those situations may deter violent retaliation and may help break victims from the cycle of violence. House Standing Committee Report No. 930, Conference Committee Report No. 74, Senate Standing Committee Report No. 1255.

Act 255, Session Laws 2013, amended §707-716(1) to include the use of a simulated firearm in the offense of terroristic threatening in the first degree. The legislature found that simulated firearms are becoming increasingly difficult to discern from real firearms and as a result, simulated firearms are being used to commit serious criminal offenses. The victims in these crimes believe that the weapons are real and are terrorized when threatened with one. Under existing law, if the weapon is not a real firearm, the suspect cannot be charged with the higher offense of terroristic threatening in the first degree and the charge is reduced to a misdemeanor. Senate Standing Committee Report No. 488, House Standing Committee Report No. 1231.