Judge: There’s probable cause for gun possession charge

Felony charge of threatening off-duty cop is thrown out

James Burkhart talks with Deputy Public Defender William “Pili” McGrath during a preliminary hearing Thursday afternoon in Wailuku District Court. The Maui News / LILA FUJIMOTO photo

WAILUKU — While finding probable cause for firearms charges against a man after a revolver was found in his waistpack, a judge ruled Thursday there wasn’t sufficient evidence to support a felony charge alleging the defendant threatened an off-duty police officer in a Kihei bar.

James Hina Burkhart, 41, was arrested Friday after a review of surveillance video showed him with what appeared to be a handgun the night of Oct. 10 at Lava Rock Grill & Bar in Kihei Kalama Village, police said.

Burkhart was at the bar with another man, said Kihei patrol officer Aly Miyashiro, who was off duty and drinking and talking with friends in the bar. He said that he recognized the 34-year-old man with Burkhart from previous police contact.

Testifying Thursday at a preliminary hearing for Burkhart in Wailuku District Court, Miyashiro said that he saw Burkhart take off his shirt and begin “flailing his arms around” while he was 12 to 15 feet away from the officer across the rectangular bar.

Because of the loud music, Miyashiro said he couldn’t hear what an “agitated” Burkhart was yelling as he made eye contact with the officer.

Aly Miyashiro

“He looked like he was mad, like somebody preparing to fight,” Miyashiro said. “He was standing up.”

At that point, Burkhart was “on my radar,” Miyashiro said.

He told a bouncer he needed to get Burkhart out of the bar before Burkhart approached Miyashiro and said, “Follow me to the bathroom,” Miyashiro said.

“It was kind of like a whispering voice,” Miyashiro said. “He came right by my ear.

“Right there, I declined and ignored his request.”

He said he kept his back against the bar, knowing Burkhart would be returning from the bathroom.

As he walked past, Burkhart “snapped his tank top” at the neck of another man who was facing Miyashiro, he said.

He again told a bouncer, and Burkhart was eventually escorted out of the bar.

Miyashiro said it was the first time he had any interaction with Burkhart. When Miyashiro asked a bouncer what was going on, he said the man with Burkhart “is pumping him up that you’re a cop,” Miyashiro said.

As Burkhart was being escorted out of the bar, “he’s swearing at me, ‘F— you, cop,’ ” Miyashiro said.

He said Burkhart repeated that more than five times.

“He’s basically getting escorted out, yelling, swearing, pointing fingers at me,” Miyashiro said.

He said he didn’t know Burkhart had a gun until two days later, after police obtained surveillance video that showed Burkhart placing his waistpack on the bar top, removing a revolver and placing it in his waistband.

Deputy Prosecutor Joanne Hicks asked how Miyashiro felt after seeing the video showing the revolver.

“In light of all this, watching the video, I feel threatened,” Miyashiro said. “I think that if I followed him into the bathroom, I don’t know what would happen. Having a weapon, seeing him place the weapon in his waistband like that and trying to lure me into the bathroom to do me some bodily harm.”

Deputy Public Defender William “Pili” McGrath asked if Miyashiro could tell from the video whether the gun was real or a toy.

“With my police training and years of experience with firearms, the way he handled the gun is consistent with a handgun,” Miyashiro said.

Burkhart, who had arrived on Maui from Oahu on Oct. 2, was arrested Oct. 13.

When police executed a search warrant Monday on a white Honda and Burkhart’s suitcase, officers found the waistpack containing a .38-caliber five-shot revolver in the suitcase, said police Detective Samuel Gasmen.

He said that the revolver, which wasn’t loaded, was consistent with the gun seen in the surveillance video.

Burkhart’s criminal record includes six convictions for felony offenses, including third-degree promotion of a dangerous drug, possessing drug paraphernalia, first-degree terroristic threatening and firearms charges, Gasmen said.

He said it hadn’t been determined who owned the revolver that was recovered.

Hicks said that the felony charge of first-degree terroristic threatening was brought in two ways, applying both because Miyashiro is a public servant and because Burkhart had a gun as a dangerous instrument.

McGrath argued against the felony threatening charge, as well as the firearms charges.

“This is just belligerence,” McGrath said. “This is guys beefing late at night in a bar.”

Judge Blaine Kobayashi ruled there was sufficient evidence for the firearms charges. But he said there wasn’t enough evidence for the felony threatening charge.

While Miyashiro is a public servant, the law requires that the victim be performing an official duty when the threat is made, Kobayashi said.

As for the other way the charge was brought, “there was clearly no threat made by the defendant against officer Miyashiro with the dangerous instrument, a 38-caliber revolver,” Kobayashi said. “Officer Miyashiro did not know that the defendant was armed with a revolver.”

Instead of first-degree terroristic threatening, the judge found probable cause for second-degree terroristic threatening, a misdemeanor offense.

Burkhart is also charged with being a felon in possession of a firearm, keeping a firearm in an improper place, third-degree assault of a woman outside the bar and disorderly conduct.

He is being held without bail at the Maui Community Correctional Center pending his arraignment Oct. 31 in 2nd Circuit Court.

* Lila Fujimoto can be reached at lfujimoto@mauinews.com.