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Hawaii Supreme Court: Plain Error Not Providing ‘Incidental Restraint’ Jury Instruction Where Kidnapping Only Charge After Dismissing Abuse Charges Prior to Trial

by Mark Wilson

The Supreme Court of Hawaii held that a trial court plainly erred in failing to instruct the jury that the “restraint” necessary for a kidnapping conviction is “restraint 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,” i.e., the “Sheffield instruction.”

On August 18, 2016, Lorrin Ishimine was charged with kidnapping in violation of HRS § 707-720(1)(d), and he was also charged with several counts of abuse of a family member, which were dropped before trial, for an incident that occurred the previous day. A jury trial was held on the kidnapping charge.

Maui Police Department (“MPD”) officer Victor Santana testified that he was asleep at home during the afternoon of August 17, 2016, when he was awakened by the sound of a vehicle speeding down the street. He looked out the window and saw the vehicle pull into the driveway of a house across the street. Santana testified that he saw a man exit the vehicle, yelling and screaming as he tried to get someone out of the vehicle. He then saw the man grab a woman from behind and drag her up the stairs of the two-story residence. The woman was kicking her feet, struggling to get away, and screaming for help.

Santana called 911 and waited for responding officers to arrive. After he briefed them, they went to the front door and spoke with a woman who initially claimed she was there alone. The woman eventually allowed police inside the residence and directed them to a locked bedroom door. The officers knocked and announced their presence three times before kicking in the door.

Ishimine was on the bed, holding a woman down and covering her mouth. MPD officer Keola Wilhelm ordered him to release the woman. Ishimine complied, was arrested, and went to trial.

After the State rested, Ishimine waived his right to testify, and the defense rested. The trial court then instructed the jury that “[a] person commits the offense of Kidnapping if he intentionally or knowingly restrains another person with intent to inflict injury upon that person or subjects that person to a sexual offense.” The court explained that there are three “material elements” to kidnapping: (1) the defendant restrained another person (2) intentionally and knowingly (3) and did so with the intent to inflict bodily injury or commit a sexual offense against that person. It also gave an instruction defining “restrain” as “to restrict a person’s movement in such as manner as to interfere substantially with her liberty by means of force.”

The jury found Ishimine guilty of Kidnapping as a class A Felony, and he was sentenced to 20 years in prison. He then appealed his conviction and sentence, raising three arguments: (1) the trial court erred in denying his motion to suppress evidence based on the warrantless entry of his home and bedroom, (2) the trial court erred in denying his motion to exclude hearsay statements of the woman who answered the front door, and (3) his conviction was not supported by substantial evidence.

The Intermediate Court of Appeals rejected each of Ishimine’s arguments. He then petitioned the state Supreme Court for a writ of certiorari, raising the same arguments. However, the Supreme Court accepted cert to answer the question of whether the trial court plainly erred by not giving the Sheffield instruction.

The Court began its analysis by discussing State v. Sheffield, 456 P.3d 122 (Haw. 2020), in which the state Supreme Court held that “the restraint necessary to support a kidnapping conviction … must be restraint 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.” The Sheffield Court further held that the jury must be provided with the foregoing instruction, i.e., the Sheffield instruction.

In Sheffield, the defendant followed a college student in a deserted area, told her he was going to beat her and have sex with her, and dragged her about 5 to 10 feet by pulling a loop on her backpack. She managed to break free. He was charged with kidnapping and third-degree assault, but the assault charge was dismissed before trial. He was convicted of kidnapping and appealed.

On appeal, the Sheffield Court discussed the Model Penal Code (“MPC”) and the majority rule among other jurisdictions on “incidental restraint,” which states that “restraint or movement merely incidental to some other crime will not support a conviction for kidnaping.” Sheffield (citing State v. Trujillo, 289 P.3d 238 (N.M. Ct. App. 2012)). The Sheffield Court summarized the three tests used by jurisdictions that follow the majority rule on “incidental restraint or movement” as follows:

“(1) whether the confinement, movement, or detention was merely incidental to the accompanying crime or whether it was significant enough, in and of itself, to warrant independent prosecution.

(2) whether the detention or movement substantially increased the risk of harm over and above that necessarily present in the accompanying crime.

(3) when the restraint or movement was done to facilitate the commission of another crime, the restraint or movement must be slight, inconsequential, and merely incidental to the other crime, or be the kind of restraint or movement inherent in the nature of the other crime. Under this test, the restraint or movement must have some other significance independent of the other crime, in that it makes the other crime substantially easier to commit or substantially lessens the risk of detection.”

The Sheffield Court noted that the MPC’s Commentary describes prosecution on only a kidnapping charge instead of assault or attempted rape as “abusive” and as an “end run around the special doctrinal protections designed for uncompleted crimes.” It also instructed that the “incidental restraint or movement” determination depends on the totality of the circumstances.

In Sheffield, the court held that the trial court plainly erred in not providing the jury instruction on incidental restraint and that it was not harmless beyond a reasonable doubt, because there was a reasonable possibility that the lack of the instruction contributed to the jury’s decision to convict.

Turning to the present case, the Court similarly held that the trial court committed plain error by declining to provide the incidental restrain instruction to the jury. It explained that under Sheffield the restraint incidental to the intended infliction of bodily injury cannot also serve as the restraint to support the kidnapping charge. It further explained that Ishimine’s dragging the victim up the stairs and into a locked bedroom could have been independently charged as kidnapping, could have resulted in injury to the victim, and could have assisted in the abuse of the victim behind the locked bedroom door, but it is for the jury to determine “whether the restraint Ishimine used was more than merely incidental to the dismissed and untried abuse of family or household member offenses.”

The Court stated the facts support charging Ishimine with abuse of family offenses, but the State dismissed those charges prior to trial, leaving only the kidnapping charge. But that was “unjust,” according to the Court, because the jury could not convict him for physically harming or abusing the victim, which is a misdemeanor, and could only convict him for kidnapping but without the State having to prove that the restraint used by Ishimine was greater than the restraint incidental to committing the underlying abuse of family offenses. Thus, the Court held the trial court plainly erred by failing to provide the incidental restraint jury instruction required by Sheffield.

The Court then concluded that the error was not harmless beyond a reasonable doubt “because there was a reasonable possibility that the absence of such an instruction contributed to Ishimine’s conviction.” It explained that when a jury is not advised that more than just incidental restraint is necessary to support a kidnapping conviction there is a risk of a conviction that is not based on a sufficient showing of restraint. Sheffield.

The Court expressed “no opinion as to whether a jury could find Ishimine guilty of kidnapping on remand.... The power to make this determination ultimately rests with the finder of fact, but only after being properly instructed on the nature of the restraint necessary to convict a defendant of kidnapping.”

Accordingly, the Court vacated the judgment of the Court of Appeals and remanded the case to the trial court for further proceedings. See: State v. Ishimine, 515 P.3d 192 (Haw. 2022).  

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