State v. Naki

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Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
14-JUN-2021
07:49 AM
Dkt. 94 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
STATE OF HAWAI#I, Plaintiff-Appellee, v.
RAYMOND K. NAKI aka RAYMOND NAKI, JR., Defendant-Appellant
APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT
(CASE NO. 2CPC-XX-XXXXXXX(1))
SUMMARY DISPOSITION ORDER
(By: Leonard, Presiding Judge, Wadsworth and Nakasone, JJ.)
Defendant-Appellant Raymond Naki, a.k.a. Raymond Naki,
Jr. (Naki), appeals from the May 13, 2020 Judgment; Conviction
and Sentence; Notice of Entry (Judgment) entered against him and
in favor of Plaintiff-Appellee State of Hawai#i (State) by the
Circuit Court of the Second Circuit (Circuit Court).1
Following a jury trial, Naki was convicted of
Terroristic Threatening in the First Degree (Terroristic
Threatening), in violation of Hawaii Revised Statutes (HRS)
1
The Honorable Rhonda I.L. Loo presided.
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§ 707-716(1)(e) (2014),2 and Abuse of Family or Household Member,
in violation of HRS § 709-906 (2014 and Supp. 2018).3
Naki raises a single point of error on appeal,
contending that there was insufficient evidence to convict him of
Terroristic Threatening.
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 Naki's point of error as follows:
Naki argues that the State failed to prove that Naki
threatened, by word or conduct, to cause bodily injury to the
complaining witness (CW) because CW was the sole witness to
testify that Naki pointed the gun at her. Naki maintains that "a
reasonable mind could not conclude Naki's guilt beyond a
reasonable doubt" because CW's memory was impaired from the
2
HRS § 707-716 provides, in pertinent part:
§ 707-716 Terroristic threatening in the first
degree. (1) A person commits the offense of terroristic
threatening in the first degree if the person commits
terroristic threatening:
. . . .
(e) With the use of a dangerous instrument or a
simulated firearm[.]
. . . .
(2) Terroristic threatening is a class C
felony.
3
On appeal, Naki does not challenge his conviction for Abuse of
Family or Household Member.
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chaos, emotions, and alcohol flowing on the night of the alleged
incidents.
HRS § 707-715 (2014) defines "Terroristic threatening"
in pertinent part as follows:
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[.]
(Emphasis added).
"A person commits the offense of terroristic
threatening in the first degree if the person commits terroristic
threatening . . . [w]ith the use of a dangerous instrument."4
HRS § 707-716(1)(e). While proof of actual terrorization is
unnecessary to sustain a conviction for Terroristic Threatening,
"it is evidence of the occurrence of the material elements." See
State v. Nakachi, 7 Haw. App. 28, 32, 742 P.2d 388, 391 (1987),
accord State v. McGhee, 140 Hawai#i 113, 120, 398 P.3d 702, 709
(2017) ("[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 . . . was intended to terrorize or in
reckless disregard of the risk of terrorizing another person.").
4
It is undisputed that a Lorcin 9mm semiautomatic pistol, such as
the one recovered in this case by the Maui Police Department ( MPD), is a
"dangerous" instrument within the meaning of the statute. See HRS § 707-700
(2014).
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Here, CW consistently testified that Naki approached
her with a loaded gun and pointed it at her face while she dialed
911 in response to Naki punching her in the face during a heated
argument over the couple's dog. CW stated that the gun was
pointed at her within a foot of her face, while Naki yelled, "You
want to fuck with me? I have nothing to lose." CW stated that
she "just knew he was ready to do it, that he was ready to fire a
bullet into [her] face." CW testified further that Naki
continued to point the gun at her face even after her phone was
knocked out of her hand and she had fallen to the ground. CW
stated that Naki was still holding the gun and that she "felt
like a hostage" when 911 eventually made contact with her. CW
testified that she was "very afraid that he was going to hurt me
in some way if I didn't get rid of them" and that she thought
Naki would kill her if she didn't end the call with 911.
Naki argues that this testimony is insufficient to
prove beyond a reasonable doubt that Naki threatened, by words
and/or conduct, to cause bodily injury to CW. Naki notes that,
at one point, CW testified that Naki told her to pick up the gun
and shoot him. Naki contends that only CW testified that the gun
was pointed at her, but her memory was impaired because of
emotions, chaos, and drinking. In sum, Naki submits that the
testimony of one witness is not substantial enough to sustain his
conviction here. Naki cites no law in support of this particular
proposition and the argument is without merit.
4
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The Hawai#i Supreme Court has held that "the testimony
of a single witness, if found credible by the jury, constitutes
sufficient evidence to support a finding." Kekona v. Bornemann,
135 Hawai#i 254, 264, 346 P.3d 361, 371 (2015) (citing In re Doe,
95 Hawai#i 183, 196-97, 20 P.3d 616, 629-30 (2001)); see, e.g.,
State v. Mundon, 121 Hawai#i 339, 345-47, 219 P.3d 1126, 1133-35
(2009) (defendant convicted of Terroristic Threatening where
complainant was sole eye witness and defendant contested material
testimony); State v. Smith, 106 Hawai#i 365, 372-73, 105 P.3d
242, 249-50 (App. 2004) ("Sufficient evidence to support a
conviction can be established through the testimony of a single
witness."). Moreover, it is well-established that "guilt may be
proved beyond a reasonable doubt on the basis of reasonable
inferences drawn from circumstantial evidence." State v.
Mitchell, 88 Hawai#i 216, 226, 965 P.2d 149, 159 (App. 1998)
(quoting State v. Pone, 78 Hawai#i 262, 273, 892 P.2d 455, 466
(1995)).
In this case, CW's testimony was corroborated by both
direct and circumstantial evidence elicited from witnesses for
the State and the defense, as well as video, audio, and
photographic evidence. Both CW's neighbor and the MPD dispatcher
who answered CW's 911 call testified that they heard CW screaming
as she requested emergency assistance to her home. The neighbor
stated that "[i]t sounded like someone getting attacked. . . . I
could just hear her high-pitched scream and thuds and whatnot. .
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. . She had said you hit me. And then she said I'm calling 911.
And then all I heard was her screaming again." The dispatcher
testified that, out of the thousands of 911 calls she had
received in her seven years as a 911 operator for MPD, CW's call
stood out to her as being "very graphic" and that she got scared
by the screaming she heard. The audio recording of CW's 911 call
confirmed that she was screaming while Naki repeated "You want to
fuck with me?"
While Naki and his father -- the only other witnesses
in CW's home at the time of the alleged incidents -- testified
that Naki did not point the gun at CW, both men testified that
Naki and CW were fighting and that Naki was upset when he grabbed
the gun and approached CW.5 Naki specifically stated that he
didn't want CW to call 911 and that he grabbed his gun, put a
bullet in the chamber to "have it ready to fire," and approached
CW with the gun pointed either angled upwards or across his body
as he attempted to give her the gun to shoot him. Naki stated
that CW went "hysterical," screaming and falling backwards when
she saw him with the gun. Naki, still holding the weapon, stated
that he grabbed the phone from CW and that she fell into the door
frame as he told her "you want to F with me, you want to F with
me."
5
Although Naki Sr. testified that he didn't see Naki pointing the
gun at anyone, he also testified that he did not know what his son was doing
while CW was on the phone, was not "really looking [sic] these guys having
their conversation," and had a "hard time remembering what happened that
night."
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Video footage captured on the Petcube camera kept in
CW's living room was admitted into evidence and also showed that
(1) Naki came at CW aggressively and hit her after she pushed
him, (2) Naki was holding a gun and said "Don't do it" twice
while CW called 911, and (3) Naki still had the gun in his hand
when CW had her 911 call returned. Although Naki stated that he
did not punch CW but instead merely pushed her in response to CW
confronting and yelling at him, "Don't you ever get in my face
like that again, you violent mother fucker," several photographs
taken by Officer Miles were admitted into evidence depicting
bruising and abrasions sustained by CW to her face, neck, arm,
and back. MPD Officer Marvin Kalani Miles (Officer Miles)
testified that CW told him that Naki punched her in multiple
places, which Officer Miles recorded in his police report as CW
stating that she was punched "everywhere." Officer Miles also
testified that he was trained in recognizing indicia of
intoxication and that the only signs or symptoms of intoxication
he recognized on CW were the odor of alcohol, which Officer Miles
also observed as to Naki, and that CW's eyes were red and watery,
possibly due to her crying.
Although CW had been consuming alcohol during an
earlier dinner party, and possibly after, which Naki argues
renders her testimony unreliable, so too were Naki and his
father. Despite her uncertainty as to exactly how many times
Naki allegedly hit her prior to grabbing his gun, CW's testimony
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as to Naki's actions in pointing the gun at her was consistent
throughout the trial, as was her testimony as to Naki's demeanor
and the fear she felt as he approached her during her 911 call.
In sum, the terror CW testified to experiencing was corroborated
by multiple witnesses, and audio and video recordings of her
screams, and serves as circumstantial evidence that Naki's
conduct was indeed intended to terrorize or in reckless disregard
of doing so. See McGhee, 140 Hawai#i at 120, 398 P.3d at 709;
see also Mitchell, 88 Hawai#i at 226, 965 P.2d at 159.
In essence, Naki asks this court to overturn the jury's
assessment of the weight and credibility to be given to the
evidence presented at trial, which we will not do. See State v.
Wagner, 139 Hawai#i 475, 485, 394 P.3d 705, 715 (2017); Smith,
106 Hawai#i at 373, 105 P.3d at 250.
On the contrary, considering CW's testimony, together
with the testimony of the neighbor and the 911 dispatcher, along
with the video evidence of Naki hitting CW and holding the gun,
as well as the photos of CW's injuries sustained the night of
October 13, 2019, we conclude that there was substantial evidence
in the record for the jury to find that Naki used a dangerous
instrument, to wit, a Lorcin 9mm semiautomatic pistol, to
threaten to cause CW bodily injury with intent to terrorize or in
reckless disregard of the risk of terrorizing her, in violation
of HRS § 707-716(1)(e).
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Accordingly, the Circuit Court's May 13, 2020 Judgment
is affirmed.
DATED: Honolulu, Hawai#i, June 14, 2021.
On the briefs:
/s/ Katherine G. Leonard
Gerald T. Johnson, Presiding Judge
for Defendant-Appellant.
/s/ Clyde J. Wadsworth
Mark R. Simonds, Associate Judge
Deputy Prosecuting Attorney,
County of Maui, /s/ Karen T. Nakasone
for Plaintiff-Appellee. Associate Judge
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