State v. Ahlo

ACOBA, Judge,

dissenting TO ORDER UPON RECONSIDERATION OF OPINION FILED JULY 25, 1995

We vacated and remanded this case for a new trial on the terroristic threatening convictions but not the burglary conviction. An element of the burglary charge is that Defendant entered a building with the “intent to commit a crime therein.” The indictment and the facts set forth in our opinion indicate the “crime therein” was the crime of terroristic threatening. Because we remand the ter-roristic threatening charges, I believe we must also remand the burglary charge.

The pleadings and facts in this case show that the “intent” element in the burglary case rested on the crime of terroristic threatening. I presume from our opinion that that was the way the case was presented to the jury. While the State need not prove the underlying crime in a burglary charge, State v. Israel, 78 Hawai'i 66, 890 P.2d 303 (1995), here, the indictment and the facts linked the burglary charge with the terroristic threatening charges.

The State contends that the other possible crimes which might be inferred from Defendant’s actions under the burglary charge were harassment, unlawful imprisonment, and kidnapping. That is no consolation, however, since the jury was never instructed that these were the possible crimes for which Defendant’s culpable intent under the burglary charge might also be inferred. The court only instructed the jury with respect to the burglary and terroristic threatening offenses. No instruction was given to the jury as to any other possible crimes, much less those pointed out by the State, as to which the Defendant’s intent might be attached.

There is no generic “crime” in our law. There are no common law crimes in our jurisdiction. Hawai'i Revised Statutes § 1-1 (1985) (“The common law of England is declared to be the common law of the State of Hawaii (Hawai'i] ... provided that no person shall be subject to criminal proceedings except as provided by the written laws of the United States or of the State.”). In the absence of a proper instruction, there was no “crime” the jury could appropriately consider except terroristic threatening. Based on the law given it and the facts presented to it, the jury could only have convicted Defendant of burglary on the premise that the crime he intended to commit was terroristic threatening.

I would, therefore, remand the burglary charge for a new trial, also.