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Hawai’i Supreme Court Announces Degree of ‘Restraint’ Necessary to Support Kidnapping Conviction

by Douglas Ankney

The Supreme Court of Hawai’i held that the restraint necessary to support a kidnapping conviction under Hawai’i Revised Statutes (“HRS”) § 707-720(1)(d) must be restraint that is “in excess of any restraint incidental to the infliction or intended infliction of bodily injury or subjection or intended subjection of a person to a sexual offense.”

David M. Sheffield was charged with kidnapping, which carries up to 20 years’ imprisonment, and with third-degree assault, which carries up to one year. The State dismissed the assault charge, but tried Sheffield by jury on one count of kidnapping in violation of HRS § 707-720(1)(d). The complaining witness testified that while she was walking home, Sheffield grabbed her by the strap of her backpack, threatened to beat her up, and told her he wanted to f*ck her. Sheffield dragged her backward five or ten steps toward some bushes before she was able to break free, run away, and call for help. The jury found Sheffield guilty, and the circuit court imposed a 20-year term of imprisonment. He appealed to the Intermediate Court of Appeals, and the appeal was transferred to the Hawai’i Supreme Court.

Sheffield argued, inter alia, that the circuit court erred in failing to instruct the jury on assault in the third degree (even though he wasn’t tried on that charge) because the jury should have been instructed that the restraint necessary for a kidnapping conviction must be restraint in excess of the restraint “incidentally used to commit the underlying unprosecuted assault in the third degree offense.” The Court observed that Hawai’i generally follows the Model Penal Code (“MPC”) and Commentary. State v. Aiwohi, 123 P.3d 1210 (Haw. 2005).

In 1962, the American Law institute adopted the MPC and Commentaries. When drafting MPC § 212.1 on kidnapping, the Commentators criticized state kidnapping laws that required little or no movement of the victim when the “ancient requirement of asportation out of the country ... [was] the crux of the common-law offense [because it placed] the victim beyond the protection of the law.” The Commentators also highlighted the fact that kidnapping was often the offense charged due to the inadequacy of attempt laws for criminal conduct that was preparatory to robbery, rape, or other crimes. The MPC states: “A person is guilty of kidnapping if he unlawfully removes another from his place of residence or business, or a substantial distance from the vicinity where he is found, or if he unlawfully confines another for a substantial period in a place of isolation ....” The MPC Commentators explained that the “substantial removal or confinement” required for kidnapping is to “punish conduct that effects isolation of the victim from the protection of the law” and “to confine the offense to instances where the degree of removal or the duration of confinement coupled with the purpose of the kidnapper render the conduct especially terrifying and dangerous.”

By contrast, kidnapping in HRS § 707-720(1)(d) requires only an act of restraint defined as “to restrict a person’s movement in such a manner as to interfere substantially with the person’s liberty” coupled with the intent to “[i]nflict bodily injury upon that person or subject that person to a sexual offense.” The Court opined that if a person grabbed another’s arm and pulled him a few feet in an attempt to land a punch he could be found guilty of kidnapping under the statute just the same as the person who forced at knifepoint another person through an alley and into a warehouse with the intent to rape. The Court did not believe the Legislature intended to punish equally the markedly different conduct. But because the legislative record does not provide guidance, the Court turned to a court decision from New Mexico.

The kidnapping statute of New Mexico is substantially similar to Hawai’i’s. And in State v. Trujillo, 289 P.3d 238 (N.M. Ct. App. 2012), the New Mexico court said of their kidnapping statute: “applying the plain language would be ‘absurd, unreasonable, or unjust,’” because it increased the punishment three- to six-fold for holding a victim while hitting him, i.e., conduct merely incidental to another crime. Based on that reasoning, the Supreme Court of Hawai’i ruled that the restraint necessary to support a kidnapping conviction under HRS § 707-720(1)(d) must be restraint that is in excess of any restraint incidental to committing bodily injury or a sexual offense.

The Court observed that following Trujillo New Mexico revised its pattern jury instruction on kidnapping by requiring the state “to prove that the ‘taking or restraint … of [the victim] was not slight, inconsequential, or merely incidental to the commission of another crim[.]’” State v. Sena, 419 P.3d 1240 (N.M. Ct. App. 2018) (quoting New Mexico Uniform Jury Instruction 14-403 NMRA (2015)). The Court opined that Hawai’i should adopt a similar pattern jury instruction, suggesting in Footnote 17 that “the Standing Committee on Patter Jury Instruction – Criminal craft an instruction for Hawai’i consistent with this opinion.”

The Supreme Court concluded that the circuit court’s failure to instruct the jury that Sheffield’s restraint of the complaining witness had to be more than necessary than to accomplish the intended sexual offense before he could be found guilty of kidnapping may have contributed to the verdict.

Accordingly, the Court vacated Sheffield’s conviction and remanded to the circuit court for further proceedings consistent with its opinion. See: State v. Sheffield, 2020 Haw. LEXIS 1 (2020). 

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