The terroristic threats offense becomes a second degree if it occurs during a declared state of emergency. The difference between a third and second degree is significant in that a presumption of incarceration attaches to a second-degree charge. This that probation is only a sentencing option in the rarest of cases since anyone convicted of a second-degree offense faces mandatory prison time.
Subsection a. requires the threat be serious and that the psychological result, intended or risked, be grave. On the other hand, the state is only required to prove that the defendant’s words “risked” terrorizing another individual. Case law helpful to the defense emphasizes the purpose is not “to authorize grave sanctions against the kind of verbal threat which expresses transitory anger rather than settled purpose to carry out the threat or to terrorize the other person.”
While the threat must be serious, it is unclear whether the circumstances of the threat must be such as to reasonably cause the victim to believe the immediacy of the threat and the likelihood that it will be carried out. Compare State v. Butterfoss, suggesting that proof of such circumstances is necessary, with State v. Conklin, holding that such proof is not required under subsection a but only under subsection b, which is limited to threats to kill. Of course, conduct that satisfies both subsections may be prosecuted under either. The Butterfoss court held that the seriousness and immediacy of the threat and whether an ordinary person in the victim’s position would feel threatened is gauged by the totality of the circumstances. Where, as in that case, a defendant told his estranged wife that he intended to break into her house, bind and gag her and take their child, the threat was sufficient to invoke the proscriptions of this section. Since the crime involves intent to terrorize a particular victim, a jury must find that purpose with respect to an identified victim. State v. Tindell.
