State v. Nichols

141 P.3d 974, 111 Haw. 327

Opinions

Opinion of the Court by

DUFFY, J.

On January 30, 2006, petitioner/defendant-appellant Tracy Nichols filed an application for a writ of certiorari, requesting that this court review the published decision of the Intermediate Court of Appeals (ICA) in State v. Nichols, No. 26870, 111 Hawai'i 436, 142 P.3d 300, 2005 WL 3560602 (Haw.App. December 29, 2005) [hereinafter, ICA’s Opinion], affirming the September 7, 2004 judgment of conviction and sentence of five years’ probation of the Circuit Court of the Second Circuit¹ against Nichols for Terroristic Threatening in the First Degree in violation of Hawaii Revised Statutes (HRS) § 707-716(l)(c) (1993).²

In his application, Nichols asserts that the ICA gravely erred by: (1) concluding, based on a misinterpretation of State v. Kuhia, 105 Hawai'i 261, 96 P.3d 590 (App.2004), and the record below, that conviction of terroristic threatening in the first degree does not require a nexus between the alleged threat and the complainant’s official status or duties as a public servant; (2) refusing to exercise its “remedial discretion” to reverse the conviction where the ICA concluded that failure to instruct the jury to consider the “relevant attributes” of the parties in determining whether the defendant’s remarks constituted a “true threat,” as required under State v. Valdivia, 95 Hawai'i 465, 24 P.3d 661 (2001), was plain error that affected Nichols’ substantial rights; (3) improperly diminishing the trial court’s responsibilities to be limited to, in the absence of any objection, avoiding “only plain error rather than all non-harmless error”; and (4) concluding that the trial court’s failure to instruct the jury on the included offense of Terroristic Threatening in the Second Degree, HRS § 707-717 (1993),³ was not reversible error based on a misapplication of State v. Haanio, 94 Hawai'i 405, 16 P.3d 246 (2001), and a misreading of the record below where the instructions on the charged offense were incomplete and deficient.

We granted certiorari primarily to address Nichols’ contention that the ICA misstated the standard of review for erroneous jury instructions in this jurisdiction. We agree with Nichols that the standard of review as set forth by the ICA misstates this jurisdiction’s controlling precedents, and we reject it. We hold that an appellate court will reverse for plain error in jury instructions where the error cannot be said to be harmless beyond a reasonable doubt (i.e., considering the record as a whole, there is a reasonable possibility that the error contributed to the defendant’s conviction). Applying that standard to the instant case, we hold that the circuit court’s failure to instruct the jury that “it could consider relevant attributes of both the defendant and the subject of the allegedly threatening utterance in determining whether the subject’s fear of bodily injury, as allegedly induced by the defendant’s threatening utterance, was objectively reasonable under the circumstances in which the threat was uttered,” Valdivia, 95 Hawaii at 479, 24 P.3d at 675, was not harmless beyond a reasonable doubt because there is a reasonable possibility that the error contributed to Nichols’ conviction. Accordingly, we reverse the ICA’s Opinion, vacate the September 7, 2004 judgment of conviction, and remand this matter to the circuit court for a new trial.

I. BACKGROUND

The facts of the instant case were recited by the ICA as follows:

On September 26, 2003, in the County of Maui, State of Hawaii, Nichols was indicted by a Maui Grand Jury charging him as follows:

That on or about the 16th day of September, 2003, in the County of Maui, State of Hawaii, TRACY NICHOLS, with intent to terrorize, or in reckless disregard of the risk of terrorizing Nicholas Krau, a public servant, did threaten, by word or conduct, to cause bodily injury to Nicholas Krau, thereby committing the offense of Terroristic Threatening in the First Degree in violation of Section 707-716(l)(c) of the Hawaii Revised Statutes.

Nichols’ first trial in the Circuit Court of the Second Circuit commenced on March 29, 2004 and ended in a mistrial on March 31, 2004 because the jury was unable to reach a unanimous verdict. The second jury trial commenced on July 6, 2004.

At the second trial, evidence was presented that, on September 1, 2003, at approximately 12:00 p.m., Officer Nicholas Krau (Officer Krau) of the County of Maui Police Department and a team of other police officers conducted a felony investigation of Patricia Baker (Baker) in the Kihei area of the County of Maui. Baker had rented a vehicle from a car company, the rental period had expired, and the police were looking for the vehicle. Officer Krau knew that Nichols and Baker previously had been in a relationship together and were the parents of a child in the custody of Nichols. Acting upon this information, Officer Krau, in police uniform, and the other members of the police team went to Nichols’ residence to ask if Nichols knew of Baker’s whereabouts. They were unable to procure any information from Nichols.

Departing from Nichols’ residence, Officer Krau saw and recognized, by its looks and license plate number, the overdue rental vehicle. It was being driven by a female named Summer Plunk (Plunk). Officer Krau was familiar with Plunk from his prior dealings with her. Officer Krau then conducted a traffic stop approximately 150-200 yards from Nichols’ [mother’s] residence to determine if someone was concealed in the overdue rental vehicle and to ask Plunk if she knew of Baker’s whereabouts.

While Officer Krau was speaking to Plunk, who was being cooperative, Nichols arrived at the location of the traffic stop. According to Officer Krau’s testimony, Nichols was upset and began interfering with the police investigation by instructing Plunk not to give any information to the police. In response, Officer Krau advised Nichols that they were conducting an investigation and instructed Nichols to “step back” and “stay away.” Despite these commands, Nichols continued to approach Plunk’s location and to instruct Plunk not to provide any further information to Officer Krau. As a result of Nichols’ noncompliance and persistent interference, Officer Krau handcuffed Nichols and detained Nichols in the back seat of Officer Krau’s patrol vehicle.

While Nichols was in the back of the patrol vehicle, it appeared to Officer Krau that Nichols was having a seizure. Officer Krau immediately called for the paramedics. They arrived within five to ten minutes, treated Nichols, and released him back to the police just as the police were completing their investigation. The police cited Plunk for driving without a license and released both Nichols and Plunk at the scene. The police called the car rental company to send a representative to take possession of the rental car and its keys.

Approximately two weeks later, on September 16, 2003, at about 10:40 p.m., Officer Krau went to the Tesoro Gas Express in Kihei to purchase beer and chewing gum. At the time, Officer Krau was off-duty and not in uniform. While exiting the store, Officer Krau noticed a white pickup truck parked by the entrance of the store and observed Nichols walking towards him at a fast pace. With questions omitted, the following is Officer Krau’s testimony as to the events and verbal exchanges with Nichols that immediately ensued:

A And he tells me where is your ID, I want to see your ID for that beer.

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A I was kind of in shock because this gentleman was talking to me. So I was like, so. So I told him I am 21,1 showed my ID to the cashier in the store, just on my way home to have a few beers.

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A He then kept coming at me, he got into my face, real close to me, and he is like, yeah, you punk bitch, what you going to do.

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A He is in my face, he is like within a foot from me, his fists are clenched, just slightly raised above his hips, he has got his chest sticking out and he is right on [sic] my face, yeah, punk bitch, what are you going to do. He was very angry, angry upset. His voice was raised.

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A At that time I felt threatened. I thought this guy is going to hit me or something.

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A So then I told him, you know, I’m off duty, it’s my day off, just trying to enjoy my day off, I just want to go home and relax, I don’t want to deal with you.

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A He then tells me, hey, you punk bitch, you’re not shit without your gun and your badge and all your boys. He goes, I am going to luck your ass.

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A I thought he was going to kick my ass. I thought, well, he was going to assault me.

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A So then I have all this ... beer in my hand and my cell phone, my gum, my wallet, so I am trying to get to my vehicle. I just wanted to leave. I wanted to get out of the area. I didn’t want to deal with him. I didn’t want to—it was my day off. I was just trying to enjoy my day off.

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A So I am side-stepping. I don’t want to turn around and walk away from him and give him an opportunity to strike me from behind. So I am kind of keeping my eyes on him and I am sidestepping to my vehicle, trying to get to my vehicle so I can, you know, just go.

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A He is following, walking, mirroring as—he is walking alongside as I am walking, staying right in my face. Same aggression, just fists clenched, he is still aggressive, he is spealdng loudly, aggressive tone of voice.

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A ... [Y]eah, he continued calling me a punk bitch, telling me he is going to fuck me up....

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A I was totally convinced I was going to get assaulted. This guy was—he was going to attempt to kick my ass.

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A I continue sidestepping to my vehicle. I am not trying to provoke [Nichols] in any way, I am not saying anything, I am just going to my vehicle. When Officer Krau reached his vehicle,

Nichols stopped following Officer Krau and returned to and entered the white pickup truck. Officer Krau did not know who else was in the white truck and had the following concerns: “There could have been other people in the vehicle just waiting for an opportunity to jump out and attack me, assault me. If they had weapons in there, I had no idea what was going to happen.” As Nichols departed from the Tesoro Gas Express, he continued to yell, “punk B-IT-C-H” at Officer Krau. Officer Krau was never touched by Nichols.

Officer Krau departed in the opposite direction from his home because he did not know if Nichols was “waiting, trying to set me up, waiting for me to leave, ... follow me to my house, or whether [Nichols] was going to jump out or, you know, harm me or my family.” Officer Krau then placed a call to his residence, spoke to his father, informed his father of his encounter and prior dealings with Nichols. Officer Krau also advised his father to watch out for a white pickup truck. Officer Krau then called a few co-workers, including his brother, to notify them of what had occurred between Nichols and himself in order to establish Nichols as the prime suspect should “something happen” to Officer Krau or his family members. Officer Krau acknowledged that he should have notified central dispatch immediately to report the incident per proper police procedure, but, in fact, did not do so until returning to work three days later on September 19, 2003.

Nichols did not testify.

On July 7, 2004, during the in-ehambers settlement of jury instructions, the following discussion regarding the offense of Terroristic Threatening in the Second degree took place, in relevant part:

[PROSECUTOR]: Perhaps we could put something on the record, Your Hon- or, regarding the Court’s finding [sic] that there is no lesser included offense of TT [Terroristic Threatening] 2 in this case. We did that the last trial. The only difference between the TT 1 and the TT 2 is whether or not the [victim] was a police officer, public servant. And I don’t think there has been any evidence indicating that [Officer Krau] was—

THE COURT: To the contrary.

[PROSECUTOR]: Yes.

[DEFENSE COUNSEL]: I agree.

THE COURT: So we will make a finding [sic] that there is no included offense.

Without objection, the court instructed the jury, in relevant part, as follows:

Number 16: In the Indictment, the defendant, Tracy Nichols, is charged with the offense of Terroristic Threatening in the First Degree.

A person commits the offense of Ter-roristic Threatening in the First Degree if, with the intent to terrorize or in reckless disregard of the risk of terrorizing a public servant, he threatens, by word or conduct, to cause bodily injury to a public servant.

There are four 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: One, that on or about the 16th day of September, 2003, in the County of Maui, State of Hawaii, the defendant, Tracy Nichols, intentionally threatened or recklessly disregarded the risk of threatening, by word or conduct, to cause bodily injury to another person, to wit, Nicholas Krau; and, two, that the defendant, Tracy Nichols, intended, knew or recklessly disregarded a substantial and unjustifiable risk, that the person threatened was a public servant; and, three, that the defendant, Tracy Nichols, did so with the intent to terrorize or in reckless disregard of the risk of terrorizing Nicholas Krau; and, four, that Nicholas Krau was a public servant.

Number 17: A threat does not include any statement which, when taken in context, is not a true threat because it is conditional or made in jest.

An alleged true threat is one that is 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.

True threats must be so unambiguous and have such immediacy that they convincingly express an intention of being carried out.

A threat is, on its face and in the circumstances in which it is made, so unequivocal, unconditional, immediate and specific as to the person threatened, as to convey a gravity of purpose and imminent prospect of execution.

Number 18: Terrorize means to cause another person to have serious alarm for his or her personal safety.

Number 19: Actual terrorization is not a material element of terroristic threatening, although, it is evidence of the occurrence of its material elements.

Number 20: Law enforcement officer includes a police officer.[⁴]

During its deliberations, the jury did not submit any questions to the trial court. The jury found Nichols guilty as charged.

ICA’s Opinion, 111 Hawaii at 438-41, 142 P.3d at 302-05 (footnote omitted). Judgment and sentence were entered on September 7, 2004, and Nichols timely appealed therefrom.

On appeal, Nichols argued that the circuit court’s jury instructions were plainly erroneous in that the circuit court failed to: (l)(a) specify that the prosecution must prove that Officer Krau was a public servant at the time the threat was made and instruct the jury to consider whether the threat was related to, or the result of, Krau’s performance as a public servant; (b) define the term “public servant”; (c) instruct the jury that it could consider whether Krau’s fear of bodily injury induced by the threat was objectively reasonable under the circumstances, based on the attributes of the defendant and the subject of the threat; and (2) instruct the jury that it could consider the lesser included offense of terroristic threatening in the second degree.

On December 29, 2005, the ICA issued its opinion affirming the judgment of the circuit court. In its opinion, the ICA engaged in a lengthy meditation on the standard of review for erroneous jury instructions, at the end of which it concluded that

in Hawai'i, absent an objection in accordance with HRPP [Hawai'i Rules of Penal Procedure] Rule 30(f), “[n]o party may assign as error the giving or the refusal to give, or the modification of, an instruction.” However, even when a party fails to object to an instruction in accordance with HRPP Rule 30(f), appellate courts shall apply the HRPP Ride 52(b) “plain error” standard of review. We leave open the question of whether that standard is that (a) we may recognize plain error when the error committed affects substantial rights of the defendant, or (b) we will apply the plain error standard of review to correct errors which seriously affect the fairness, integrity, or public reputation of judicial proceedings, to serve the ends of justice, and to prevent the denial of fundamental rights, or (e) both. We further conclude that, absent an objection by a party in accordance with HRPP Rule 30(f), the trial court’s duty “either to correct any defects [in the requested instructions] or to fashion its own instructions” is limited to the duty to avoid only plain error rather than all non-harmless error.

ICA’s Opinion, 111 Hawai'i at 448-49, 142 P.3d at 312-13.

Applying the standard of review it had set forth, the ICA first analyzed whether error had been committed at all with respect to the four points assigned by Nichols, concluding: (1) the circuit court erred “when it failed to tell the jury [in instruction No. 20] that a finding that Officer Krau was a ‘law enforcement officer’/'police officer’ was a finding that Officer Krau was a ‘public servant,’ ” id., Ill Hawai'i at 449, 142 P.3d at 313; (2) the circuit court did not err in failing to instruct the jury that it “must determine that the threat by Nichols was related to, or the result of, the performance of Officer Krau’s official duties,” id., Ill Hawai'i at 449-50,142 P.3d at 313-14 (citing Kuhia, 105 Hawai'i at 269-70, 96 P.3d at 598-99); (3) the circuit court “erred when it failed to provide the jury with the ‘relevant attributes’ instruction as required by Valdivia,” id., 111 Hawai'i at 451, 142 P.3d at 315; and (4) Nichols’ assertion that the circuit court erred when it failed to instruct the jury on the lesser included offense of terroristic threatening in the second degree lacked merit, id., 111 Hawai'i at 451,142 P.3d at 315.

The ICA next considered the severity of the errors it had found, concluding: (1) “[t]he ‘public servant’ error was not a plain error,” id., 111 Hawai'i at 451, 142 P.3d at 315; (2) “[assuming the ‘relevant attributes’ error was a plain error, we decline to exercise our remedial discretion,” id.; and (3) the failure to give a lesser included offense instruction either (a) was not error because, although Officer Krau was off duty when the alleged threatening occurred, evidence that the alleged threats were unconnected to Krau’s duties as a police officer would have been irrelevant, or (b) it was harmless error because the jury convicted Nichols of the charged offense and so it would never have reached the lesser included offense, id., 111 Hawai'i at 451, 142 P.3d at 315 (citing Haanio, 94 Hawai'i at 415-16, 16 P.3d at 256-57, for the latter proposition). Accordingly, the ICA affirmed the judgment below. Id., 111 Hawai'i at 451, 142 P.3d at 315.

In response to the ICA’s decision, Nichols filed the instant application for a writ of certiorari, arguing that the ICA gravely erred in “refus[ing] to conduct a harmless error analysis” and “declin[ing] to reverse the conviction once the error is shown to not be harmless beyond a reasonable doubt.” After Nichols’ application was granted, the State of Hawaii [hereinafter, the prosecution] filed a supplemental brief with leave of this court, in which it agreed with Nichols that the correct standard of review is whether the alleged error was harmless beyond a reasonable doubt, but argued that the failure to give a “relevant attributes” instruction was in fact harmless error.

II. STANDARDS OF REVIEW

A. Jury Instructions and Plain Error

When jury instructions or the omission thereof are at issue on appeal, the standard of review is whether, when read and considered as a whole, the instructions given are prejudicially insufficient, erroneous, inconsistent, or misleading. Erroneous instructions are presumptively harmful and are a ground for reversal unless it affirmatively appears from the record as a whole that the error was not prejudicial. [However, e]rror is not to be viewed in isolation and considered purely in the abstract. It must be examined in the light of the entire proceedings and given the effect which the whole record shows it to be entitled. In that context, the real question becomes whether there is a reasonable possibility that error might have contributed to conviction. If there is such a reasonable possibility in a criminal case, then the error is not harmless beyond a reasonable doubt, and the judgment of conviction on which it may have been based must be set aside.

State v. Gonsalves, 108 Hawai'i 289, 292-93, 119 P.3d 597, 600-01 (2005) (internal citations, quotation marks, indentations, and paragraphing omitted; bracketed material added). See also State v. Shinyama, 101 Hawai'i 389, 395, 69 P.3d 517, 523 (2003) (same).

HRPP Rule 30(f) (2000), entitled “Instructions and objections,” provides in relevant part:

No party may assign as error the giving or the refusal to give, or the modification of, an instruction, whether settled pursuant to subdivision (b) or subdivision (c), of this rule, unless the party objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which the party objects and the grounds of the objection.

With respect to the review of errors in light of whether timely objection was or was not made, HRPP Rule 52 (2000) provides:

(a) Harmless error. Any error, defect, irregularity, or variance which does not affect substantial rights shall be disregarded.

(b) Plain error. Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court.

In line with HRPP Rules 30 and 52, this court has held that:

As a general rule, jury instructions to which no objection has been made at trial will be reviewed only for plain error. [State v.] Pinero, 75 Haw. [282,] 291-2, 859 P.2d [1369,] 1374 [(1993)]. If the substantial rights of the defendant have been affected adversely, the error will be deemed plain error. Id. Further, this Court will apply the plain error standard of review to correct errors which seriously affect the fairness, integrity, or public reputation of judicial proceedings, to serve the ends of justice, and to prevent the denial of fundamental rights. State v. Fox, 70 Haw. 46, 56, 760 P.2d 670, 676 (1988); see also State v. Kahalewai, 56 Haw. 481, 491, 541 P.2d 1020, 1026 (1975).

State v. Sawyer, 88 Hawai'i 325, 330, 966 P.2d 637, 642 (1998).

The use of the HRPP Rule 52(b) plain error standard of review for erroneous jury instructions was recently reaffirmed in State v. Eberly, 107 Hawai'i 239, 112 P.3d 725 (2005), a case decided six months before the ICA’s opinion in the instant case. In Eberly, we observed that

notwithstanding HRPP Rule 30[ (f) ], erroneous [jury] instructions may be grounds for reversal despite counsel’s failure to object at trial. Where instructions were not objected to at trial, if the appellant overcomes the presumption that the instructions were correctly stated, the rule is that such erroneous instructions are presump tively harmful and are a ground for reversal unless it affirmatively appears from the record as a whole that the error was not prejudicial.

Id. at 250, 112 P.3d at 736 (internal citations and quotation marks omitted) (emphasis in original). We also reaffirmed our previous cases holding that it is ultimately the trial court that is responsible for ensuring that the jury is properly instructed. Id. Nichols argues that in light of our consistent precedent regarding the duty of the trial court to instruct the jury, the ICA gravely erred in concluding that the duty of the trial court is limited to avoiding plain error. We agree and reject the ICA’s conclusion to the contrary.

Given that the duty to properly instruct the jury lies with the trial court, Nichols argues that “the real question for review of jury instructions, whether as plain error or otherwise, is whether there is a reasonable possibility the error contributed to the verdict. ... If there is such a reasonable possibility in a criminal case, the error is not harmless beyond a reasonable doubt, and the judgment must be reversed.” Nichols continues:

The extensive body of law establishing the standard of review for jury instructions in this jurisdiction does not allow for the exercise of “remedial discretion” once prejudicial error is identified.... The ICA [thus] gravely erred in concluding that it had the option to decline to exercise its “remedial discretion” or that it had any remedial discretion at all in regards to such error.

We first note that Nichols is correct in asserting that there is no case in this jurisdiction referring to “remedial discretion” in connection with plain error, nor can we discover any reported criminal case in which this court has found plain error but refused to reverse in the exercise of discretion. While such discretion may exist in the federal courts, we have never employed the four-pronged plain error standard of review set forth in United States v. Olano, 507 U.S. 725, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993), and we decline to do so now. See State v. King, 205 Wis.2d 81, 555 N.W.2d 189, 194 (Ct.App.1996) (declining to follow Olano on state law grounds even though the language of its own plain error rule was substantially identical to that of the federal rule).

We disagree with Nichols, however, to the extent his argument can be taken as the assertion that plain error review has no discretionary component. In State v. Aplaca, 96 Hawaii 17, 25 P.3d 792 (2001), we stated:

[W]hether to recognize error that has not been raised by trial counsel, appellate counsel, or both, as plain error warranting reversal is, ultimately, discretionary. See HRPP Rule 52(b) (2000) (“Plain errors or defects affecting substantial rights may be noticed although not brought to the attention of the court.” (Emphasis added.)). Accordingly, we have observed that

our power to deal with plain error is one to be exercised sparingly and with caution because the plain error rule represents a departure from a presupposition of the adversary system—that a party must look to his or her counsel for protection and bear the cost of counsel’s mistakes.

State v. Kelelcolio, 74 Haw. 479, 515, 849 P.2d 58, 74-75 (1993) (cited in State v. Arceo, 84 Hawaii 1, 34, 928 P.2d 843, 876 (1996) (Nakayama, J., dissenting)). In this vein, we will deem harmless beyond a reasonable doubt, and therefore disregard, “any error, defect, irregularity[,] or variance” that “does not affect [the] substantial rights” of a defendant. HRPP Rule 52(a) (2000).

Id. at 22, 25 P.3d at 797. In effect, we employ our HRPP Rule 52(b) discretion to correct errors that are not harmless beyond a reasonable doubt and to disregard those errors that are harmless beyond a reasonable doubt.

However, the necessary implication of this approach is that the same standard of review is to be applied both in cases in which a timely objection to a jury instruction was made and those in which no timely objection was made. The ICA in this case correctly recognized that the merger of the plain error and harmless error standards of review in the case of jury instructions flows from this court’s holding in Haanio⁵ that the duty to instruct the jury ultimately lies with the trial court:

If the duty to give the right jury instructions is assigned to the trial court, (a) the standard of review for an erroneous jury instruction will always be the harmless error non-discretionary standard, and will never be the plain error discretionary standard, and much uncertainty will be avoided; (b) an erroneous jury instruction will never be a basis for a defendant’s assertion that he/she has been the victim of the ineffective assistance of counsel; and (c) abuse of the plain error discretionary standard of review will be avoided.

ICA’s Opinion, 111 Hawai'i at 446-47, 142 P.3d at 310-11

The ICA previously attempted to implement its view of the consequences of the allocation of ultimate responsibility for jury instructions to the trial court in State v. Astronomo, 95 Hawai'i 76, 18 P.3d 938 (App.2001), concluding that “with respect to jury instructions, the distinction between ‘harmless error’ and ‘plain error’ is a distinction without a difference.” Id. at 82, 18 P.3d at 944. Accord State v. Fields, No. 25455, — Hawai'i—, — P.3d—,—, n. 7, 2005 WL 1274539, at *19 n. 7 (App. May 31, 2005) (“Now that this duty [to properly instruct the jury] has been imposed on the trial court, it is logical to conclude that erroneous instructions should be examined for HRPP Rule 52(a) ‘harmless error’ rather than HRPP Rule 52(b) ‘plain error.’ ”), cert. granted 108 Hawai'i 1, 116 P.3d 7 (Haw. July 6, 2005). Based, however, on the perceived failure of this court in State v. Iuli, 101 Hawai'i 196, 203-04, 65 P.3d 143, 150-51 (2003), to approve Astrónomo or affirmatively cite the duty of the trial court to properly instruct the jury, the ICA in the instant case took the view that the ultimate responsibility for jury instructions does not lie with the trial court and that it should thus apply a discretionary plain error standard of review to erroneous jury instructions. ICA’s Opinion, 111 Ha-wai'i at 448-49,142 P.3d at 312-13.

We now acknowledge that the ICA’s earlier view was correct and adopt the substance of Chief Judge Bums’ analysis in Astrónomo and Fields. Consequently, we hold that, although as a general matter forfeited assignments of error are to be reviewed under the HRPP Rule 52(b) plain error standard of review, in the case of erroneous jury instructions, that standard of review is effectively merged with the HRPP Rule 52(a) harmless error standard of review because it is the duty of the trial court to properly instruct the jury. As a result, once instructional error is demonstrated, we will vacate, without regard to whether timely objection was made, if there is a reasonable possibility that the error contributed to the defendant’s conviction, i.e., that the erroneous jury instruction was not harmless beyond a reasonable doubt.⁶

B. Included Offenses

“[TJrial courts must instruct juries as to any included offenses when ‘there is a rational basis in the evidence for a verdict acquitting the defendant of the offense charged and convicting the defendant of the included offense[.]’ ” Haanio, 94 Hawai'i at 413, 16 P.3d at 254 (quoting HRS § 701-109(5) (1993)).

III. DISCUSSION

In addition to his allegation of error with respect to the standard of review, Nichols repeats three of the four points he pressed before the ICA, arguing that the failure to give a “relevant attributes” instruction, lesser included offense instruction, and nexus instruction (ie., instruction that the jury must find that the threat by Nichols was related to, or the result of, the performance of Officer Krau’s official duties) were each instances of reversible plain error. The prosecution, as the ICA noted, concedes that the failure to give the “relevant attributes” instruction was error but argues that it was not plain error. On the other hand, the prosecution contends that the circuit court did not err at all in failing to give a nexus or lesser included offense instruction. For the reasons set forth below, we hold that: (1) the circuit court’s failure to give a “relevant attributes” instruction was plain error; but (2) the circuit court’s failures to give nexus and lesser included offense instructions were not error.

A. The Circuit Court’s Failure to Issue a “Relevant Attributes” Instruction Was Not Harmless Beyond a Reasonable Doubt

Nichols argues that the circuit court plainly erred in failing to instruct the jury, pursuant to Valdivia, “that the attributes of the defendant and the complainant could be taken into consideration in assessing whether, under the circumstances, Nichols’ remarks were a ‘true threat.’ ” Specifically, Nichols argues that because Krau was “trained as a police officer to a professional standard of behavior to handle physical confrontations that ordinary citizens might not be expected to equal,” the same allegedly threatening utterances of Nichols that might have induced “a reasonable fear of bodily injury” in an ordinary citizen might not have had the same effect on someone with Krau’s training. Nichols further argues that, based on Krau’s testimony tending to show that he “dealt with the situation in a calm, rational manner,” there was evidence from which a jury could reasonably have concluded, had it been properly instructed, that Krau did not have a reasonable fear of bodily injury. Based on this reasonable possibility that the error contributed to his conviction, Nichols asserts that the “error was not harmless beyond a reasonable doubt and the ICA erred in failing to so find.” The ICA assumed the error was plain, but refused to exercise its “remedial discretion” to set aside the conviction. ICA’s Opinion, 111 Hawaii at 451, 142 P.3d at 315. Applying the correct standard of review set forth above in Section II.A, we hold that: (1) the failure to give a relevant attributes instruction was erroneous, and (2) there is a reasonable possibility that the error contributed to Nichols’ conviction, ie., the error was not harmless beyond a reasonable doubt.

1. The Failure to Give a Relevant Attributes Instruction Was Erroneous.

Because the prosecution’s confession of error is not binding upon the appellate court, we must still first determine whether the circuit court erred in failing to give a relevant attributes instruction. State v. Solomon, 107 Hawai'i 117, 126, 111 P.3d 12, 21 (2005). In Valdivia, the defendant was arrested while attempting to flee from police, handcuffed, and taken to the hospital. Valdivia, 95 Hawai'i at 470, 24 P.3d at 666. While seated and awaiting treatment, still handcuffed, and flanked by two police officers, the defendant turned to one officer and said, “I’m gonna kill you and your police uniform.” Id. at 471, 24 P.3d at 667. The officer testified that this statement “worr[ied]” him. Id. The defendant was subsequently charged with terroristic threatening in the first degree against a public servant. Id. On appeal after conviction, the defendant argued that the trial court erroneously failed, over his objection, to instruct the jury that “[w]here a threat is directed at a police officer, you may consider that police officers are trained to a professional standard of behavior that ordinary citizens might not be expected to equal.” Id. at 479, 24 P.3d at 675. This court agreed that the failure to instruct the jury that the threatened person’s status and training as a police officer was relevant was reversible error, holding:

[I]n order for an utterance to constitute a “true threat,” it must be objectively susceptible to inducing fear of bodily injury in a reasonable person at whom the threat is directed and who is familiar with the circumstances under which the threat is uttered .... That being the case, the particular attributes of the defendant and the subject of the threatening utterance are surely relevant in assessing whether the induced fear of bodily injury, if any, is objectively reasonable.

Id. This holding was based on our decision in In re Doe, 76 Hawai'i 85, 869 P.2d 1304 (1994), where we reasoned that in considering whether the offense of harassment has been committed against a police officer, the fact that the “object of the [allegedly harassing utterances] is a trained and experienced police officer” maintaining a “professional standard of restrained behavior” is a factor. Id. at 96, 869 P.2d at 1315.

As set forth above, the trial court in this case gave the following true threat instruction without objection:

A threat does not include any statement which, when taken in context, is not a true threat because it is conditional or made in jest.

An alleged true threat is one that is objectively capable of inducing a reasonable fear of bodily injury in the person at whom the threat was directed and who ivas aware of the circumstances under which the remarks were uttered.

True threats must be so unambiguous and have such immediacy that they convincingly express an intention of being carried out.

A threat is, on its face and in the circumstances in which it is made, so unequivocal, unconditional, immediate and specific as to the person threatened, as to convey a gravity of purpose and imminent prospect of execution.

(Emphasis added.) We agree with the parties that this instruction is defective under Valdivia because it does not make clear to the jury that Nichols’ and Krau’s particular attributes, including their relative size and weight, Nichols’ apparent capacity and inclination to carry out his threat, and Krau’s status and training as a police officer, were relevant in determining whether Nichols’ alleged threats were objectively capable of inducing a reasonable fear of bodily injury under the circumstances.

2. There is a Reasonable Possibility that the Failure to Give a “Relevant Attributes” Instruction Contributed to Nichols’ Conviction.

The prosecution argues that the circuit court’s failure to give a “relevant attributes” instruction was harmless on four grounds: (1) unlike the defendant in Valdi-via, Nichols did not request the proper instruction; (2) the cases are distinguishable on the facts because the officer in Valdivia was on duty while Krau was off duty and did not have a weapon, back-up, or radio; (3) in the defense’s closing argument, trial counsel “essentially conceded that [Nichols’] words exacerbated the risk that Officer Krau’s training and professional standard of restrained behavior would be overcome”; and (4) the prosecution cured the error in its closing argument by “urg[ing] the jury to consider, as a matter of common sense, the relevant attributes of Officer Krau.”⁷

First, it is true that the defendant in Val-divia, unlike Nichols, objected to the erroneous instruction at trial. However, as explained above in Section II.A, this distinction is irrelevant because it is the duty of the trial court to see that the jury is properly instructed. As also set forth above, erroneous jury instructions are presumptively prejudicial unless it affirmatively appears from the record as a whole that the error was harmless beyond a reasonable doubt. Nichols argues that the record does not in fact affirmatively demonstrate harmlessness, referring us to evidence that Officer Krau was calm in departing the scene and did not immediately report the threat to central dispatch according to police procedure. He suggests that, had the jury been properly instructed, it could reasonably have concluded based on this evidence that Nichols’ alleged threats were not objectively capable of, and did not in fact, induce a reasonable fear of bodily injury in a trained police officer like Krau.

The prosecution counters that this case is distinguishable from Valdivia on the facts, with the result that there is no reasonable possibility here that the failure to give an attributes instruction contributed to the conviction. In Valdivia, on the one hand, the defendant was seated, handcuffed, surrounded by two on-duty officers in uniform, and the threatened officer testified only that the allegedly threatening statement “worried” him. Here, on the other hand, the evidence showed, inter alia, that: (1) Krau was off duty, alone, weaponless, and caught off-guard; (2) Nichols was not seated and restrained in handcuffs, but was instead standing within a foot of Krau’s face with his fists clenched; and (3) Krau was not merely worried, but (a) “was totally convinced [he] was going to get assaulted [and that Nichols] was going to attempt to kick [his] ass,” (b) drove off in the opposite direction from his home to avoid being followed, (c) warned his father to watch out for Nichols’ truck, and (d) called a few friends and his brother to establish Nichols as the prime suspect in the event something should happen to him or his family members.

While the distinctions drawn by the prosecution have some merit, we are unwilling to speculate as to what the jury would have done had it been given a proper “relevant attributes” instruction. In the absence of such an instruction, we cannot know whether, under the evidence here, the jury would have concluded beyond a reasonable doubt that Nichols’ threats were objectively capable of inducing a reasonable fear of bodily injury in a police officer, as opposed to an ordinary person, in Krau’s circumstances. Based upon our review of the record as a whole, we thus conclude that there is a reasonable possibility that the jury might have weighed the evidence differently had it been properly instructed. Therefore, we hold that the circuit court’s failure to provide a “relevant attributes” instruction was not harmless beyond a reasonable doubt.⁸

B. Nichols’ Remaining Points of Error Are Without Merit.

Because we vacate the judgment below and remand for a new trial due to the plain error discussed in Section III.A, we need not consider Nichols’ remaining points of error. We nevertheless address them in order to provide guidance to the circuit court on remand. See, e.g., KNG Corporation v. Kim, 107 Hawai'i 73, 80, 110 P.3d 397, 404 (2005) (analyzing the constitutionality of a statute for the benefit of the court on remand); Gap v. Puna Geothermal Venture, 106 Hawai'i 325, 341-43, 104 P.3d 912, 928-30 (2004) (offering guidance on remand as to appropriate sanctions); State v. Aganon, 97 Hawai'i 299, 303, 36 P.3d 1269, 1273 (2001) (providing guidance on remand regarding the propriety of certain jury instructions). Based on the record presently before us, we conclude that the court on remand is not required to give either a nexus instruction or lesser included offense instruction.

1. The Trial Court Is Not Required to Issue a Nexus Instruction on Remand Because Terroristic Threatening in the First Degree Does Not Require a Nexus Between the Threat and the Official Duties of the Public Servant if the Threatened Person Is a Government Officer or Employee.

Nichols contends that persons not actively performing a governmental function at the time they are threatened should not be considered “public servants” within the meaning of HRS § 710-1000(15). He further argues that because Officer Krau was off duty and in plain clothes at the time of the alleged threatening in this case, he was not a public servant and thus there was “a question of fact as to whether there was a nexus between the alleged threat and the complainant’s official status or duties” requiring that the trial court so instruct the jury. We, like the ICA, disagree on the basis that the offense of terroristic threatening in the first degree does not require a nexus between the alleged threat and the threatened person’s status as a public servant where the threatened person is a government officer or employee, and thus hold that the circuit court did not err in failing to give a nexus instruction.

HRS § 710-1000(15) does not necessarily require that a person be actively performing a governmental function (unlike, e.g., HRS § 707-701(b) (1993 and Supp.2001), which requires that a law enforcement officer’s death “aris[e] out of the performance of official duties”) and acting within the scope of his or her employment in order to qualify as a public servant. In Kuhia, the ICA rejected a contrary reading of the statute, reasoning as follows:

The definition of “public servant” in HRS § 710-1000(15) contains three clauses, as diagrammed below:

“Public servant” means [1] any officer or employee of any branch of government, whether elected, appointed, or otherwise employed, and [2] any person participating as advisor, consultant, or otherwise, in performing a governmental junction, but [3] the term does not include jurors or witnesses!)]

(Emphasis and brackets added.) The term “governmental function” is further defined in HRS § 710-1000(6) (1993) as including “any activity which a public servant is legally authorized to undertake on behalf of the government.”

Kuhia apparently reads the phrase “in performing a government function” as modifying both clause [1] and clause [2], We believe a far more natural reading of the statute is that this phrase only modifies clause [2], Accordingly, we conclude that under HRS § 710-1000(15) any “officer or employee of any branch of government” qualifies as a public servant.

Kuhia, 105 Hawai'i at 270, 96 P.3d at 599 (emphases in original). We agree that HRS § 710-1000(15), properly read, distinguishes between two categories of people: (1) government employees or officers, for whom there is no requirement that they be performing a governmental function at a given time in order to qualify as a public servant; and (2) private persons, who must be performing a governmental function in order to qualify as a public servant. We therefore adopt the analysis of the ICA in Kuhia and hold that: (1) a threatened person, such as Officer Krau here, who is a government employee and thus falls under the first clause of HRS § 710-1000(15),⁹ need not be actively performing a governmental function at the time he or she is threatened in order to qualify as a public servant for purposes of the terroristic threatening in the first degree offense; and (2) consequently, there is no requirement of a nexus between the alleged threats and the threatened person’s official status or duties.¹⁰ Accordingly, we hold that the circuit court on remand is not required to give a nexus instruction.

2. Assuming the Same Evidence Is Presented at a Subsequent Trial, the Trial Court Is Not Required to Give a Lesser Included Offense Instruction.

Nichols also argues that the trial court erred by failing to instruct the jury on the lesser included offense of terroristic threatening in the second degree. In Haa-nio, this court held that a trial court is obligated to give a lesser included offense instruction when there is a rational basis for it in the evidence, even if, as in this case, no request or objection is made by the parties. Haanio, 94 Hawai'i at 415, 16 P.3d at 256. Thus the sole question is, assuming the same evidence is presented at a subsequent trial, whether there is a rational basis in the evidence for a jury to conclude that Nichols committed terroristic threatening in the second degree.

Upon reviewing the evidence in the record before us in this ease, we believe that there is no rational basis in the evidence on which a jury could conclude that Nichols did not have the requisite state of mind with respect to the attendant circumstance of “public servant.” In particular, we note Officer Krau’s uncontradieted testimony that: (1) in the course of his official duties as a police officer, Krau had been involved in a confrontation with Nichols on September 1, 2003; and (2) during the course of the alleged threatening that took place fifteen days later, Nichols stated, “You’re not shit without your gun and your badge and all your boys.” (Emphasis added.) The only rational inference that could be drawn from this evidence, assuming that the trier of fact finds it credible, is that Nichols knew that he was threatening a police officer.¹¹ Accordingly, unless Nichols presents evidence at a future trial that would allow some other rational inference to be drawn, we hold that the trial court is not required to instruct the jury on the lesser included offense of terroristic threatening in the second degree.

IV. CONCLUSION

Based on the foregoing, we reverse the ICA’s Opinion, vacate the circuit court’s September 7, 2004 final judgment, and remand this matter to the circuit court for a new trial consistent with this opinion.

Footnotes

1

. The Honorable Shackley F. Raffetto presided over the trial and the Honorable Reinette W. Cooper presided over sentencing.

2

. HRS § 707-716(l)(c) provides:

A person commits the offense of terroristic threatening in the first degree if the person commits terroristic threatening ... [a]gainst a public servant!.]

Terroristic threatening in the first degree is a class C felony. HRS § 707-716(2). HRS § 707-715(1) (1993) in turn defines terroristic threatening in relevant 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 to property of another or to commit a felony ... with the intent to terrorize, or in reckless disregard of the risk of terrorizing, another person!.]

3

. HRS § 707-717(1) provides that "[a] person commits the offense of terroristic threatening in the second degree if the person commits terroristic threatening other than as provided is section 707-716.” Second degree terroristic threatening is a misdemeanor. HRS § 707-717(2).

4

. Nichols' counsel did in fact object to instruction No. 20, stating, "I am always afraid of giving a partial piece of a statute, since it's purely from [HRS § ] 710-1013[sic].... [I]f we are to quote the statute, we should quote all of it.” At the same time, Nichols’ counsel did agree that there was absolutely no dispute in this case "as to what a law enforcement officer is.”

HRS § 710-1000 (1993) stales in relevant part:

(13) "Law enforcement officer” means any public servant, whether employed by the State or subdivisions thereof or by the United States, vested by law with a duty to maintain public order or, to make arrests for offenses or to enforce the criminal laws, whether that duty extends to all offenses or is limited to a specific class of offenses;

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(15) "Public servant" means any officer or employee of any branch of government, whether elected, appointed, or otherwise employed, and any person participating as advisor, consultant, or otherwise, in performing a governmental function, but the term does not include jurors or witnesses!.]

5

. In Haanio, we held that "the trial courts, not the parties, have the duty and ultimate responsi bility to insure that juries are properly instructed on issues of criminal liability.” Haanio, 94 Hawai'i at 415, 16 P.3d at 256 (citations omitted). In so doing, we reexamined our decision in State v. Kupau, 76 Hawai'i 387, 879 P.2d 492 (1994), and rejected the ICA's view that a defendant’s sufficient understanding of the consequences of the waiver of the right to have a lesser included offense instruction should measure a trial court’s decision to give or not give an otherwise proper included offense instruction. Id. at 412-13, 16 P.3d at 253-54. In so doing, we also rejected the view that the parties, as a matter of trial strategy or constitutional law, have any right to forego such an instruction. Id. at 414-15, 16 P.3d at 255-56. As a consequence, we find misplaced the dissent's contention that “tactics or strategies in the interests of the client,” Dissent at 347, 141 P.3d at 995, have any relevance to a determination of the existence of instructional error.

At the same time, the parties are by no means precluded from taking part in the settling of jury instructions. We were careful to note in Haanio that "the prosecution and the defense may, as they do in the ordinary course, propose particular included offense instructions, and our holding is not to be taken as discouraging or precluding their desire or felt obligation to do so.” 94 Hawai'i at 415, 16 P.3d at 256. We reaffirm that statement and also add that nothing said in Haa-nio precludes the trial court from requiring the parties to submit relevant instructions for its review. See HRPP Rule 30(b) ("At such reasonable time as the court directs, the parties shall file written requests that the court instruct the jury on the law.”).

In this connection, we also consider the dissent’s fears of gamesmanship and manipulation in the arena of jury instructions, and find that they are, at best, premature. See Dissent at 345-47, 141 P.3d at 992-994. Although the dissent cites various provisions of the Hawai'i Rules of Professional Conduct (HRPC) in support of its view, we believe that it is those very rules which facilitate and support our decision to allocate ultimate instructional responsibility in Haanio and here. In particular, we emphasize the point that attorneys have a duty of candor toward the tribunal. See Dissent at 347, 141 P.3d at 994; HRPC Rule 3.3. Under HRPC Rule 3.3(a)(1) (providing that an attorney shall not knowingly make a false statement of law to the tribunal), attorneys who knowingly submit erroneous jury instructions, see Dissent at 346, 141 P.3d at 993, risk sanctions and disciplinary proceedings. Furthermore, under HRPC Rule 3.3(a)(3) (providing that an attorney shall not knowingly fail to disclose adverse, controlling authority to the tribunal), attorneys who omit to point out erroneous instructions, see id., face the same consequences. Moreover, attorneys contemplating instructional skulduggery would be well advised to consider the risk of a civil suit for legal malpractice by a dissatisfied client (e.g., suppose that an attorney intentionally fails to request a proper instruction or object to an erroneous instruction, the client is convicted, prevails on appeal, and, unhappy after having served two years of incarceration while the appeal was pending, sues, arguing that if counsel had not acted in a deceptive manner in the first place, the client would not have been convicted). While we are not unaware of the proof problems and attorney-client privilege issues attendant to disciplinary and civil proceedings in such cases, we consider the risks of these proceedings and appellate sanctions to be adequate deterrence to gamesmanship.

6

. The dissent argues that the implied consequence of our holding today is that "the appellate courts shall seek out erroneous jury instructions within the record, either when called upon by the parties or sua sponte, and shall reverse the trial court unless it can be proven that the instructional error was harmless beyond a reasonable doubt." Dissent, at 344, 141 P.3d at 991 (emphasis added). The fear that appellate discretion has been eviscerated is unfounded; we emphasize that the phrase "once instructional error is demonstrated” in our holding is not to be taken lightly. As already noted above, this point was made clear in Eberly: "Where instructions were not objected to at trial, if the appellant overcomes the presumption that the instructions were correctly stated, the rule is that such erroneous instructions are presumptively harmful and are a ground for reversal unless it affirmatively appears from the record as a whole that the error was not prejudicial.” 107 Hawai'i at 250, 112 P.3d at 736 (internal citations and quotation marks omitted) (emphasis added). In other words, there was and remains a presumption that unobjected-to jury instructions are correct; hence, the appellate court is under no duty to scour the record for error sua sponte. Accordingly, we carve out today no "invisible exceptions,” Dissent at 347, 141 P.3d at 994, to the rules of appellate procedure (i.e., Hawai'i Rules of Appellate Procedure Rules 28(b)(4) and 40.1(d)(1)) or penal procedure (HRPP Rules 30 and 52) regarding appellate discretion to notice forfeited assignments of error generally or instructional error in particular.

Where we part company with the dissent, however, is with regard to the question whether an appellant, if he or she can overcome the initial presumption against error, has an additional burden of demonstrating the harmfulness of the error in the absence of a timely objection below. Our precedent compels the conclusion that no such burden exists. As the dissent agrees, Dissent at 343, 141 P.3d at 990, we have a long line of precedent stating that the harmfulness of instructional error is presumed. Even Sawyer, cited by the dissent for the proposition that we review forfeited claims of instructional error only for plain error, Dissent at 343-44, 141 P.3d at 990-991, invokes the familiar incantation; "Erroneous instructions are presumptively harmful and are a ground for reversal unless it affirmatively appears from the record as a whole that the error was not prejudicial.” 88 Hawai'i at 330, 966 P.2d at 642 (citation omitted). See also Eberly, 107 Hawai'i at 250-51, 112 P.3d at 736-37 (applying the presumption of harmfulness in the context of plain error review); State v. Vanstory, 91 Hawai'i 33, 42-43, 979 P.2d 1059, 1068-69 (1999) (same). The holding here is more explicitly compelled by Arceo. There, in light of the presumption of harmfulness, we rejected “the proposition that an erroneous jury instruction is [per se] 'harmless' if 'the defendant never objected to’ or 'requested his own instruction[.]' ” 84 Hawai'i at 12 n. 8, 928 P.2d at 854 n. 8. Instead, we flatly stated that the lack of a timely objection is "of no consequence" in determining whether instructional error is harmful, and noted that "we have long since parted company with the view” that a standard of review more stringent than "harmless beyond a reasonable doubt” may be applied. Id. Accordingly, we believe that our holding today, far from doing violence to precedent, see Dissent at 345, 141 P.3d at 992, is in fact the natural and inevitable culmination of our instructional error jurisprudence, as well as the only way faithfully to reconcile the simultaneous application of a presumption of harmfulness with plain error review.

7

. The prosecution also argues that the failure of Nichols' counsel to propose a "relevant attributes” instruction was the result of gamesmanship, and thus "in order to protect the integrity and public reputation of judicial proceedings, [Nichols] should now be precluded from unfairly invoking the plain error doctrine, where under the facts of this case, trial counsel apparently had knowledge of the error, but chose to remain silent.” This court has acknowledged that, as a general rule, invited errors are not reversible. State v. Jones, 96 Hawai'i 161, 166, 29 P.3d 351, 356 (2001); State v. Puaoi, 78 Hawai'i 185, 189, 891 P.2d 272, 276 (1995); State v. Smith, 68 Haw. 304, 313-14, 712 P.2d 496, 502 (1986). However, we have also noted that the general rule is inapplicable where an invited error is so prejudicial as to be plain error or to constitute ineffective assistance of counsel. Smith, 68 Haw. at 314, 712 P.2d at 502. See also Haanio, 94 Hawai'i at 415, 16 P.3d at 256 ("Our courts are not gambling halls but forums for the discovery of truth.” (Citation omitted.)). In other words, we are cycled back to our original inquiry-

8

. With respect to tire prosecution’s additional contention that the lack of a “relevant attributes” instruction was cured by statements made by the parties in closing arguments, we note that just as arguments of counsel cannot substitute for evidence, State v. Quitog, 85 Hawai'i 128, 144, 938 P.2d 559, 575 (1997), so too may they not cure defects in jury instructions:

Arguments by counsel cannot substitute for an instruction by the court. Arguments by counsel are likely to be viewed as statements of advocacy, whereas a jury instruction is a definitive and binding statement of law.

State v. Perkins, 243 Wis.2d 141, 626 N.W.2d 762, 773 (2001).

9

. We note that we are not presented here with a person falling under the second clause of HRS § 710-1000(15) and thus expressly reserve our opinion on the question whether a nexus instruction (and, if so, of what sort) might be required in such a case.

10

. Nichols nevertheless maintains that "the absence of a nexus [requirement] could render application of the [terroristic threatening] statute unconstitutionally vague].” This contention is without merit. A cardinal rule of criminal law is that a defendant must have the required state of mind with respect to each element of the charged offense, including the attendant circumstances. See HRS § 702-204 (1993) (providing that "a person is not guilty of an offense unless the person acted intentionally, knowingly, recklessly, or negligently, as the law specifies, with respect to each element of the offense”); HRS § 702-205 (1993) (providing that the elements of an offense include attendant circumstances). HRS § 707-715(1) provides that the required state of mind for terroristic threatening generally is that the alleged threats be made “with the intent to terrorize, or in reckless disregard of the risk of terrorizing.” As set forth above, terroristic threatening in the first degree under HRS § 707-716(l)(c), supra note 2, requires that the threat is made against a public servant. Because the offense of terroristic threatening in the first degree includes the attendant circumstance "against a public servant,” a defendant must have the requisite mental state with respect to that circum- slance, i.e., the defendant must intend, know, or recklessly disregard the risk that he or she is threatening a person who is a public servant. Therefore, there is no vagueness problem because a defendant who threatens a stranger dressed in pajamas could not be convicted of terroristic threatening in the first degree even if it subsequently comes to light that, unbeknownst to the defendant at the time, the pajama-clad figure is, say, a police officer.

11

. Although Nichols does not press the point in his application, we note for the benefit of the court on remand that we agree with the ICA both that: (1) the trial court erred, “when it failed to tell the jury that a finding that Officer Krau was a 'law enforcement officer'/'police officer’ was a finding that Officer Krau was a ‘public servant,’ ” ICA’s Opinion, 111 Hawaii at 449, 142 P.3d at 313; but (2) the error was harmless because it favored the defense in failing to complete for the jury the chain of equivalence that “police officer = law enforcement officer = public servant.” ICA’s Opinion, 111 Hawaii at 451, 142 P.3d at 315.