Terroristic Threatening in the First Degree – Defendant Subject to Restraining Order

Terroristic Threatening in the First Degree – Defendant Subject to Restraining Order: H.R.S. § 707-716(1)(f)(i) [In Count (count number) of the Indictment/Complaint, the] [The] Defendant, (defendant's name), is charged with the offense of Terroristic Threatening in the First Degree. A person commits the offense of Terroristic Threatening in the First Degree if, [with the intent to terrorize] [in reckless disregard of the risk of terrorizing] another person, he/she threatens, by word or conduct, to [cause bodily injury to another person] [cause serious damage or harm to property of another] [commit a felony] after having been restrained, by order of a court [including an ex parte order] from [contacting] [threatening] [physically abusing] the person threatened pursuant to chapter 586 of the Hawaii Revised Statutes. There are four material elements of the offense of Terroristic Threatening in the First Degree, each of which the prosecution must prove beyond a reasonable doubt. These four elements are: 1. That, on or about (date) in the [City and] County of (name of county), the Defendant threatened, by word or conduct, to [cause bodily injury to another person] [cause serious damage or harm to property of another] [commit a felony*]; and 2. That the Defendant did so [with the intent to terrorize] [in reckless disregard of the risk of terrorizing] another person; and 3. That the Defendant did so after having been restrained by order of a court [including an ex parte order] from [contacting] [threatening] [physically abusing] the person threatened pursuant to chapter 586 of the Hawaii Revised Statutes; and 4. That the Defendant acted [intentionally] [recklessly] as to element 3. The prosecution also must prove beyond a reasonable doubt that the threat was objectively capable of causing 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 made, and: (1) the threat on its face and in the circumstances in which it was made must have been so clear, unconditional, immediate, and specific as to the person threatened, that the threat communicated a seriousness of purpose and an imminent likelihood of being carried out; or (2) the Defendant possessed the apparent ability to carry out the threat, such that the threat was reasonably likely to cause fear of bodily injury in (complainant’s name). The relevant attributes** of the Defendant and (complainant's name) must be taken into consideration in determining whether the threat, under the circumstances, was objectively capable of causing fear of bodily injury in a reasonable person. [“Property of another” includes the pets and livestock of another.] Notes H.R.S. §§ 707-716(1)(f)(i), 707-715(1), 702-206(1) and (3). For definition of states of mind, see instructions: For definition of terms defined by H.R.S. Chapter 707, see instruction: See State v. Valdivia, 95 Hawai'i 465, 24 P.3d 661 (2001), for discussion of a “true threat.” See State v. Nichols, 111 Hawai'i 327, 141 P.3d 974 (2006), for discussion of “relevant attributes.” *The court should identify whether applicable or included offenses are felonies, and instruct as to the elements of these felonies (and any applicable defenses that vitiate intent), if the felony offenses are not otherwise charged. **Relevant attributes may include, but are not limited to, size, weight, occupation, training, and status of the Defendant and (complainant's name). The instruction may need to be modified when the threat is to cause serious damage to property of another or to commit a felony.