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                                                              Electronically Filed
                                                              Supreme Court
                                                              SCAP-XX-XXXXXXX
                                                              02-JAN-2020
                                                              11:58 AM
           IN THE SUPREME COURT OF THE STATE OF HAWAIʻI

                            ---oOo---
________________________________________________________________

         STATE OF HAWAIʻI, Respondent/Plaintiff-Appellee,

                                    vs.

      DAVID M. SHEFFIELD, Petitioner/Defendant-Appellant.
________________________________________________________________

                             SCAP-XX-XXXXXXX

        APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT
                  (CAAP-XX-XXXXXXX; 2PC161000068)

                             JANUARY 2, 2020

 RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.

                 OPINION OF THE COURT BY McKENNA, J.

                            I.   Introduction

      David M. Sheffield (“Sheffield”), a stranger to the

complaining witness (“CW”), allegedly followed her while she

walked along a street at night, stated that he wanted to beat

her up and have sex with her, pulled a loop on her backpack as

she tried to cross a street at a crosswalk, and dragged her

backwards about five or ten steps before she broke free.

Sheffield was charged with one count of kidnapping in violation
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of Hawaiʻi Revised Statutes (“HRS”) § 707-720(1)(d) (2014),                  a

class A felony punishable with up to twenty years of

imprisonment,2 and one count of third degree assault,3 a

misdemeanor punishable with up to one year of imprisonment.4                 At

the State’s request, the third degree assault count was

dismissed before trial.       Sheffield was tried by a jury in the

Circuit Court of the Second Circuit5 (“circuit court”) and found

guilty on the kidnapping count.        He now appeals, and this court

accepted transfer of the appeal from the ICA.

      On appeal, Sheffield argues that, when kidnapping is the

only count tried, the State must prove the defendant used a

greater degree of “restraint” than that incidentally used to


1
      HRS § 707-720(1)(d) provides in relevant part, “A person commits the
offense of kidnapping if the person intentionally or knowingly restrains
another person with intent to . . . [i]nflict bodily injury upon that person
or subject that person to a sexual offense. . . .”


2
      HRS § 706-659 (2014) provides in relevant part, “[A] person who has
been convicted of a class A felony . . . shall be sentenced to an
indeterminate term of imprisonment of twenty years without the possibility of
suspension of sentence or probation. The minimum length of imprisonment
shall be determined by the Hawai[ʻ]i paroling authority in accordance with
section 706-669. . . .”
3
      HRS § 707-712(1)(a) (2014) provides in relevant part, “A person commits
the offense of assault in the third degree if the person . . .
[i]ntentionally, knowingly, or recklessly causes bodily injury to another
person. . . .”
4
      HRS § 706-663 (2014) provides in relevant part, “[T]he court may
sentence a person who has been convicted of a misdemeanor . . . to
imprisonment for a definite term to be fixed by the court and not to exceed
one year. . . .”
5
      The Honorable Peter T. Cahill presided.



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commit the underlying unprosecuted assault in the third degree

offense.    He also argues the jury should have been so

instructed.    Sheffield asserts that the act of pulling the loop

on CW’s backpack and dragging her backwards five to ten steps

was insufficient evidence of “restraint” to support the

kidnapping conviction.      He asks this court to reverse his

conviction based upon insufficiency of the evidence, or, in the

alternative, to vacate his conviction and remand this case to

the circuit court for further proceedings.

      We hold that the “restraint” required to support a

kidnapping conviction under HRS § 707-720(1)(d) is indeed

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;

therefore, the circuit court plainly erred in failing to so

instruct the jury.      Hence, we vacate the circuit court’s

judgment of conviction and sentence and remand this case to the

circuit court for further proceedings consistent with this

opinion.

                              II.   Background
A.    Indictment

      On January 25, 2016, the State charged Sheffield by

indictment with Count One:       kidnapping, under HRS § 707-

720(1)(d), and Count Two: assault in the third degree, under HRS


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§ 707-712(1)(a).     Prior to trial, the State filed a motion to

dismiss Count Two without prejudice, which the circuit court

granted.

B.    Trial Testimony

      Sheffield’s conviction relies on CW’s testimony, which we

summarize in the light most favorable to the prosecution.                CW

was a 24-year-old University of Hawaiʻi Maui College student on

November 16, 2015.      That night, one of her classes had run long,

so she left school later than usual, after 7:30 p.m.             When she

arrived at the bus station, it appeared empty, so she believed

she missed the last bus to upcountry Maui, where she lived.                   She

decided to walk through Kahului towards the highway to

hitchhike.    As she walked down Alamaha Street, she heard male

voices yelling at her to “come hang out,” but she kept going.

She rolled a cigarette but realized she had no lighter, so she

purchased a lighter at a store.        As she exited the store, she

heard a male voice yelling at her to stop and wait.

      A stranger (later identified as Sheffield) then approached

CW.    She kept walking half a block before he started yelling to

her again.    As CW entered a crosswalk, Sheffield again ran up to

her and asked for a cigarette.        When CW refused, he followed her

and kept asking her why she was avoiding him and stating that he

wanted her to come to his house.



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      CW testified that she thought Sheffield was “kind of like a

crazy old guy” and did not initially feel threatened by him.

She testified, however, that he started becoming more aggressive

with her, running in front of her and putting his arms out to

block her way, all the while questioning her.          Then, according

to CW, the stranger told her, “I want to fuck you.”           He then

said he “was going to knock [her] out” and put his hands up near

his face before taking a swing at CW.         CW stated Sheffield

missed her face because he was not a skilled fighter.

       As CW turned to run away, Sheffield grabbed a loop on the

back of her backpack and pulled her backwards towards the

bushes, again repeating “more of the fucking kind of stuff” and

that “he was going to beat [her] up.”         CW testified that

Sheffield’s voice became “low, mean, and aggressive.”            She

struggled to break free because her backpack was strapped

together in the front and she could not undo the buckle.

Sheffield pulled CW back “five or maybe ten steps,” and every

now and then, he would yank on the backpack and “force [her]

back . . . another step.”      When he had pulled her all the way to

the curb, he could not pull her any farther.

      Sheffield then gave CW a very hard tug, and she spun

around, causing him to lose his grip on her backpack loop.              She

spun around again and ran into the street to escape him.

Sheffield pursued her, but both became caught among moving

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traffic.     CW was able to run up the street towards a hardware

store.    Having eluded Sheffield, CW then called her boyfriend to

explain what had happened and asked for a ride home.

C.    Jury Instructions

      After the evidentiary portion of the trial, the circuit

court instructed the jury on kidnapping as follows:

                   The defendant, DAVID MICHAEL SHEFFIELD, is charged
             with the offense of Kidnapping.
                   A person commits the offense of Kidnapping if he
             intentionally or knowingly restrains another person with
             intent to inflict bodily injury upon that person or subject
             that person to a sexual offense.
                   There are three material elements of the offense of
             Kidnapping, each of which the prosecution must prove beyond
             a reasonable doubt. These three elements are:
                   1. That, on or about the 16th day of November, 2015,
             in the County of Maui, State of Hawaiʻi, the Defendant
             restrained another person; and
                   2. That the Defendant did so intentionally or
             knowingly; and
                   3. That the Defendant did so with the intent to
             inflict bodily injury upon that person or subject that
             person to a sexual offense.

      As to the term “restrain,” the circuit court instructed the

jury that the term “means to restrict a person’s movement in

such a manner as to interfere substantially with her liberty by

means of force,” adapting the instruction from Hawaiʻi Pattern

Jury Instructions – Criminal 9.00 (2014) to the evidence adduced

at trial.6



6
      The pattern jury instruction defines “restrain” as follows:

             “Restrain” means to restrict a person’s movement in such a
             manner as to interfere substantially with the person’s
             liberty:
             (1) by means of force, threat, or deception; or
                                                               (continued. . .)

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      The circuit court also instructed the jury as to sexual

assault in the first and second degree, as suggested by Hawaiʻi

Pattern Jury Instructions — Criminal 9.34 (1996).7                The court


(continued. . .)
            (2) if the person is under the age of eighteen or
            incompetent, without the consent of the relative, person,
            or institution having lawful custody of the person.

Hawaiʻi Pattern Jury Instructions – Criminal 9.00.
7
      Hawaiʻi Pattern Jury Instructions — Criminal 9.34 provides as follows:

            [In Count (count number) of the Indictment/Complaint, the]
            [The] Defendant, (defendant’s name), is charged with the
            offense of Kidnapping.

            A person commits the offense of Kidnapping if he/she
            intentionally or knowingly restrains another person with
            intent to [inflict bodily injury upon that person] [subject
            that person to a sexual offense].

            There are three material elements of the offense
            of Kidnapping, each of which the prosecution must prove
            beyond a reasonable doubt.

            These three elements are:

                  1. That, on or about (date) in the [City and] County
            of (name of county), the Defendant restrained another
            person; and
                  2. That the Defendant did so intentionally or
            knowingly; and
                  3. That the Defendant did so with the intent to
            [inflict bodily injury upon that person] [subject that
            person to (name of sexual offense or included sexual
            offense)*].
                                        Notes
            H.R.S. §§ 707-720(1)(d), 702-206(1) and (2).

            For definition of states of mind, see instructions:
            6.02--“intentionally”
            6.03--“knowingly”

            For definition of terms defined by H.R.S. Chapter
            707, see instructions:
            9.00--“bodily injury”
            9.00--“restrain”

            *The court should instruct as to the elements of the sexual
            offense or included sexual offenses (and any applicable
                                                              (continued. . .)

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also instructed the jury that “bodily injury” means “physical

pain, illness, or any impairment of physical condition.”                 The

circuit court also instructed the jury on the lesser included

misdemeanor offense of unlawful imprisonment in the second

degree.8

D.    Verdict, Conviction, Sentence, and Appeal

       The jury unanimously found Sheffield guilty as charged of

kidnapping.    The circuit court then sentenced Sheffield to 20

years of imprisonment.9        Sheffield timely appealed, and we

accepted transfer of this case.

                        III.    Standards of Review

A.    Sufficiency of the Evidence

                  We have long held that evidence adduced in the trial
            court must be considered in the strongest light for the
            prosecution when the appellate court passes on the legal
            sufficiency of such evidence to support a conviction; the
            same standard applies whether the case was before a judge
            or a jury. The test on appeal is not whether guilt is
            established beyond a reasonable doubt, but whether there
            was substantial evidence to support the conclusion of the
            trier of fact. Indeed, even if it could be said in a bench


(continued. . .)
            defense that vitiate[s] intent), unless such sexual
            offenses are otherwise charged.
8
      HRS § 707-722 (2014), “Unlawful imprisonment in the second degree,”
provides in relevant part that “(1) [a] person commits the offense of
unlawful imprisonment in the second degree if the person knowingly restrains
another person.”
9
      The jury found that the State had proven beyond a reasonable doubt that
Sheffield did not release CW voluntarily prior to trial. Therefore, he was
convicted of kidnapping as a Class A felony. See HRS § 707-720 (2) & (3)
(2014) (stating that kidnapping is a Class A felony that can be reduced to a
Class B felony if the defendant proves that he “voluntarily released the
victim, alive and not suffering from serious or substantial bodily injury, in
a safe place prior to trial.”).


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             trial that the conviction is against the weight of the
             evidence, as long as there is substantial evidence to
             support the requisite findings for conviction, the trial
             court will be affirmed.
                   Substantial evidence as to every material element of
             the offense charged is credible evidence which is of
             sufficient quality and probative value to enable a person
             of reasonable caution to support a conclusion. And as
             trier of fact, the trial judge is free to make all
             reasonable and rational inferences under the facts in
             evidence, including circumstantial evidence.

State v. Matavale, 115 Hawaii 149, 157-58, 166 P.3d 322, 330-31

(2007) (citation, quotation marks, and brackets omitted).

B.    Jury Instructions:     Plain Error

             As a general rule, jury instructions to which no objection
             has been made at trial will be reviewed only for plain
             error. An error will be deemed plain error if the
             substantial rights of the defendant have been affected
             adversely. Additionally, 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. Henley, 136 Hawaiʻi 471, 478, 363 P.3d 319, 326 (2015)

(citations omitted).

                 IV.   The Parties’ Arguments on Appeal

A.    Sheffield’s Opening Brief

      In his Opening Brief, Sheffield asserts two points of

error:    (1) that insufficient evidence supported the kidnapping

conviction, because the restraint Sheffield used against CW was

only the restraint necessary to commit the “incidental” and

unprosecuted offense, assault in the third degree; and (2) that

the circuit court plainly erred in failing to instruct the jury

on assault in the third degree (the dismissed and unprosecuted


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charge), because the jury should have been instructed that the

restraint necessary for a kidnapping conviction must be

restraint in excess of the restraint necessary to commit assault

in the third degree.

      Sheffield first argues that the evidence adduced at trial

was insufficient to support his kidnapping conviction because

the “restraint” necessary to support a kidnapping conviction

must be restraint in excess of that necessary to commit assault

in the third degree, the dismissed and unprosecuted “incidental”

offense in this case.     Sheffield states that the evidence,

viewed in the light most favorable to the prosecution, was that

Sheffield “grab[bed] CW’s backpack and pull[ed] her 5-10 steps

backward before she [broke] free,” which lasted about 15

seconds, after having stated that he “want[ed] to ‘fuck’ [CW]

and ‘beat’ her up.”     Sheffield argues that Hawaiʻi’s kidnapping

statute was drawn from the Model Penal Code (“MPC”), whose

Commentary states that the offense should apply only to “the

most severe conduct, given the drastic penalties that attached

to such a conviction,” and should not be a “companion charge for

every robbery, assault, and/or sexual assault,” which also

involve elements of force and restraint.

      To support his position, Sheffield extensively quotes the

Commentary to the MPC’s kidnapping offense.          He notes that the

Commentators criticized the states’ expansive interpretation of

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the offense of kidnapping to prosecute the movement of victims

that was only incidental to the commission, or attempted

commission, of other crimes like robbery or rape.           The

Commentators warned against abusive prosecution under the

kidnapping statute of conduct that is wrongful but should more

appropriately be prosecuted as some other crime.           The

Commentators theorized that the expansion of kidnapping in this

manner occurred due to the inadequacies of the law of attempt.

Notably, Sheffield quoted the Commentary as stating, “Where the

underlying crime is not completed, prosecution for kidnapping

instead of attempt may amount to an end run around the special

doctrinal protections designed for uncompleted crimes.”

      Sheffield then summarizes case law from other jurisdictions

purportedly holding that there was insufficient evidence to

support a kidnapping conviction because the “restraint” used by

the defendant was incidental to the commission of another

offense, even an uncharged offense.        See State v. Curreri, 213

P.3d 1084 (Kan. Ct. App. 2009); Hines v. State, 40 S.W.3d 705

(Tex. Ct. App. 2001); Alam v. State, 776 P.2d 345 (Alaska Ct.

App. 1989); People v. Rappuhn, 260 N.W.2d 90 (Mich. Ct. App.

1977); State v. Rich, 305 N.W.2d 739 (Iowa 1981); State v.

Salamon, 949 A.2d 1092 (Conn. 2008); U.S. v. Sanchez, 782 F.

Supp. 94 (C.D. Cal. 1992).



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      Sheffield then notes that there have been no Hawaiʻi cases

exploring the level of restraint necessary to support a

kidnapping conviction where there is an incidental but

unprosecuted crime.     He does note, however, that this court in

State v. Deguair, 139 Hawaiʻi 117, 128, 384 P.3d 893, 904 (2016),

held that a kidnapping conviction merges into a robbery

conviction where the kidnapping is part of a continuous course

of conduct in committing robbery.         He also cites to the

following Hawaiʻi appellate cases to show that a defendant can be

convicted of kidnapping and another crime, where the restraint

necessary to support the kidnapping conviction was in excess of

any restraint necessary to support a conviction for a

contemporaneously committed crime:         State v. Hernandez, 61 Haw.

475, 605 P.2d 75 (1980) (per curiam); State v. Halemanu, 3 Haw.

App. 300, 650 P.2d 587 (1982); and State v. Yamamoto, 98 Hawaiʻi

208, 46 P.3d 1092 (App. 2002).

      Sheffield argues that the evidence at trial did not show

restraint in excess of what would have been used in committing

assault in the third degree.       Sheffield argues that his

kidnapping conviction should therefore be reversed, as it is not

supported by substantial evidence.

      Sheffield next addresses his second point of error on

appeal:   whether the circuit court plainly erred in failing to



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instruct the jury on assault in the third degree, and that the

restraint necessary to support a kidnapping conviction had to

exceed any restraint used to commit assault in the third degree.

Again, he cites to cases from other jurisdictions, in which

courts instructed juries that restraint, for purposes of

kidnapping, must be greater than the restraint used in

committing the other crime for which the defendant was charged

(e.g., rape or robbery).       See Alam, 776 P.2d 345; Rappuhn, 260

N.W.2d 90; Salamon, 949 A.2d 1092; People v. Bell, 102 Cal.

Rptr. 3d 300 (Cal. Ct. App. 2009); and State v. White, 362

S.W.3d 559 (Tenn. 2012)).       Therefore, Sheffield argues, the

circuit court plainly erred in failing to advise the jury of a

heightened restraint requirement for kidnapping.            Sheffield thus

asks this court to “vacate the conviction” for kidnapping.

      In concluding his Opening Brief, Sheffield asks this court

to reverse the circuit court’s judgment due to insufficiency of

the evidence supporting the conviction, or, alternatively, to

vacate the judgment and remand this case to the circuit court

for further proceedings.

B.    The State’s Answering Brief

      As to Sheffield’s first point of error (that insufficient

evidence supported his kidnapping conviction), the State

counter-argues that Sheffield’s acts of restraining CW by the

loop on her backpack so that she could not free herself, and

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pulling her back five to ten steps, while repeatedly telling her

he was going to “fuck [her]” and “beat [her] up,” constituted

restraint that substantially interfered with CW’s liberty.

Therefore, the State argues, Sheffield’s kidnapping conviction

was supported by substantial evidence.         The State analogizes

this case to State v. Valdivia, 95 Hawaiʻi 465, 24 P.3d 661

(2001), in which this court held that the defendant-appellant’s

acts of pinning a police officer’s left arm against the steering

wheel of a moving car and driving forward, so that the officer

was dragged 30 yards, constituted sufficient evidence of

restraint to support the kidnapping conviction.           95 Hawaiʻi at

470, 473, 24 P.3d at 660, 669.

      The State next addresses Sheffield’s second point of error

(that the jury should have been instructed that it had to find

restraint greater than that necessary to commit the underlying

crime in order to convict him for kidnapping).          The State

counter-argues that the HRS and the Commentary to the Hawaiʻi

Penal Code “make no distinction between restraint to commit an

underlying offense and the restraint in excess of that.”

Therefore, to the State, the cases cited by Sheffield from other

jurisdictions are inapplicable.       The State therefore asks this

court to affirm Sheffield’s judgment of conviction.




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                             V.   Discussion

A.    The Language, History, and Structure of MPC Section 212.1
      (Kidnapping) and Hawaiʻi’s Kidnapping and Related Offenses
      Statutes, HRS §§ 707-720 to -722

      Sheffield argues that the restraint necessary for a

kidnapping conviction must be restraint in excess of the

restraint necessary to commit assault in the third degree.              His

argument is supported by the language, history, and structure of

MPC section 212.1 (Kidnapping) and Hawaiʻi’s Kidnapping and

Related Offenses statutes, HRS §§ 707-720 to -722.

      Sheffield was convicted of kidnapping under HRS § 707-

720(1)(d), which states, “A person commits the offense of

kidnapping if the person intentionally or knowingly restrains

another person with intent to . . . [i]nflict bodily injury upon

that person or subject that person to a sexual offense. . . .”

HRS § 707-700 (2014) defines “restrain” as follows:

           to restrict a person’s movement in such a manner as to
           interfere substantially with the person’s liberty: (1) By
           means of force, threat, or deception; or (2) If the person
           is under the age of eighteen or incompetent, without the
           consent of the relative, person, or institution having
           lawful custody of the person.

Based on the evidence in this case, the circuit court instructed

the jury that “[r]estrain means to restrict a person’s movement

in such a manner as to interfere substantially with her liberty

by means of force.”     Although the circuit court gave this

instruction, no instruction was given regarding whether or not

the substantial interference necessary for a kidnapping

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conviction was required to be in excess of the substantial

interference with liberty that would be incidental to the

infliction or intended infliction of bodily injury or the

subjection or intended subjection of a person to a sexual

offense.

      The Commentary to HRS § 707-720 to -722 notes that

“restraint” is the conduct applicable to kidnapping (HRS § 707-

720) as well as unlawful imprisonment in the first and second

degrees (HRS §§ 707-721 and -722, respectively).           The Commentary

states restraint is measured by reasonableness, explaining that

the “duration of restraint necessary for conviction depends upon

the intent and attendant circumstances.         In this regard,

something like a reasonable standard applies.”          The Commentary

gives the following example of a substantial interference with

liberty for purposes of kidnapping and unlawful imprisonment in

the first and second degrees:       “[A] short restraint in an area

where the victim might suffocate or come to other bodily harm

would constitute a substantial interference with liberty under

these sections.”

      Sheffield’s position is supported by the MPC’s Commentary

to Kidnapping, § 212.1.      Hawaiʻi generally follows the MPC.         See

State v. Aiwohi, 109 Hawaiʻi 115, 126, 123 P.3d 1210, 1221 (2005)

(“The Hawaiʻi Penal Code is substantially derived from the [MPC].

Accordingly, it is appropriate to look to the [MPC] and its
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commentary for guidance.” (footnote omitted)).          Further, this

court has looked to the [MPC]’s Commentary to Section 212.1

(kidnapping) for guidance in the past, although not directly in

the context of the kidnapping offense.         See State v. Flores, 131

Hawaiʻi 43, 54-55, 314 P.3d 120, 131-32 (2013) (looking to MPC

Commentary to Section 212.1 and noting that the Hawaiʻi Penal

Code makes distinctions between “unlawful imprisonment” and

“kidnapping” in a manner similar to the MPC’s distinctions

between “unlawful restraint” and “kidnapping”).           Thus, the MPC

Commentary is a useful aid in analyzing the issues raised in

this appeal.

      In 1962, the American Law Institute adopted the MPC and

Commentaries.    In crafting section 212.1 on kidnapping, the

Commentators highlighted several problems with the existing

state laws on kidnapping.      They noted that state kidnapping laws

had drifted away from the “ancient requirement of asportation

out of the country . . . [as] the crux of the common-law offense

as placing the victim beyond the protection of the law.”

Commentary on Section 212.1 at 211.        The Commentators criticized

state laws requiring only “movement” of the victim or

eliminating the asportation requirement altogether.           Commentary

on Section 212.1 at 212.      Another problem they noted was the

tendency to charge a kidnapping offense due to the inadequacy of

attempt laws to reach conduct preparatory to robbery, rape, or

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some other crime.      Commentary on Section 212.1 at 213.          The

Commentators also observed that states had dramatically

increased the penalty for kidnapping convictions to life

imprisonment or death following high-profile kidnappings like

the one involving the Lindbergh baby.          Commentary on Section

212.1 at 214-15.      These drastically increased penalties, coupled

with the expansive definitions of kidnapping, led some states to

grade kidnapping offenses by severity, a move the Commentators

supported; on the other hand, the Commentators noted that not

all states had graded the offense.          Commentary on Section 212.1

at 216-17.     This state of the law prompted the American Law

Institute to undertake a “major restructuring” of the offense of

kidnapping.     Commentary on Section 212.1 at 220.          To that end,

the MPC introduced three related offenses which were, in order

of most to least severe, kidnapping, felonious restraint, and

false imprisonment.       Id.   With respect to the kidnapping

offense, the MPC requires “substantial removal or confinement,”

as follows, with the conduct element emphasized:

             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 with any of the following
             purposes:
             (a) to hold for ransom or reward, or as a shield or
             hostage; or
             (b) to facilitate commission of any felony or flight
             thereafter; or
             (c) to inflict bodily injury on or to terrorize the victim
             or another; or



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           (d) to interfere with the performance of any governmental
           or political function.
           Kidnapping is a felony of the first degree unless the actor
           voluntarily releases the victim alive and in a safe place
           prior to trial, in which case it is a felony of the second
           degree. A removal or confinement is unlawful within the
           meaning of this Section if it is accomplished by force,
           threat or deception, or, in the case of a person who is
           under the age of 14 or incompetent, if it is accomplished
           without the consent of a parent, guardian or other person
           responsible for general supervision of his welfare.

MPC and Commentaries, § 212.1 at 201 (emphasis added).

      By contrast, the Hawaiʻi Penal Code requires only the act of

“restraint,” defined to mean “to restrict a person’s movement in

such a manner as to interfere substantially with the person’s

liberty” by various means or circumstances.          Although Hawaiʻi law

requires a substantial interference with a person’s liberty, it

does not require substantial removal or confinement for a

kidnapping conviction.      HRS § 707-720.10     Thus, the MPC and

Hawaiʻi Penal Code differ significantly in setting forth the

conduct necessary for kidnapping.         Unfortunately, there is no

legislative history explaining why Hawaiʻi’s version of the

kidnapping offense was adopted, as opposed to the MPC’s version.

1972 Haw. Sess. Laws Act 9, at 32-142; H. Stand. Comm. Rep. No.

227, in 1971 House Journal, at 784-89; 1971 House Journal, at

10
      HRS § 707-720 (Kidnapping) makes it a crime to “intentionally or
knowingly restrain[] another person with the intent” to perform further
specified acts. (Emphasis added.) The offenses of unlawful imprisonment in
the first and second degrees also require “restraint.” HRS § 707-721
(Unlawful imprisonment in the first degree) makes it a crime to “knowingly
restrain[] another person under circumstances which expose the person to the
risk of serious bodily injury.” (Emphasis added.) HRS § 707-722 (Unlawful
imprisonment in the second degree) makes it a crime to “knowingly restrain[]
another person.” (Emphasis added.)


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380-81; S. Stand. Comm. Rep. No. 599, in 1971 Senate Journal, at

1067-79; 1971 Senate Journal, at 473; Conf. Comm. Rep. Nos. 1&2,

in 1972 House Journal, at 1035-47, 1972 Senate Journal, at 734-

46; 1972 House Journal, at 236-44; 1972 Senate Journal, at 278-

89, 746.

      Even though the MPC and Hawaiʻi Penal Code kidnapping

offenses require different conduct, both codes have graded their

kidnapping and related offenses, with each considering

kidnapping to be the highest grade offense.          Although the Hawaiʻi

Penal Code uses “restrain,” instead of substantial removal and

confinement, as the conduct element in its kidnapping offense,

the Commentary nevertheless states that kidnapping and unlawful

imprisonment in the first and second degree “are gradations

based upon the underlying conduct of interference with a

person’s liberty,” and that the gradations “are based upon the

seriousness of the circumstances or purpose attending this

interference.”    Commentary to HRS § 707-720 to -722.          The

Commentary to HRS § 707-720 to -722 notes that “the most severe

sanctions” apply to kidnapping.       Thus, the MPC Commentary is

still instructive for its views on the conduct necessary for the

most severe offense: kidnapping.

      The MPC Commentators explained that the heightened

“substantial removal or confinement” conduct required for

kidnapping is supported by a dual rationale:          “first, to punish

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conduct that effects substantial isolation of the victim from

the protection of the law; but, second, 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.”           Commentary to

§ 212.1 at 223.     The Commentators noted that the “substantiality

requirement” is intended to “preclude kidnapping liability for

detentions merely incidental to rape and other crimes of

violence.”    Commentary to § 212.1 at 224.        The Commentators

provided the following example of conduct that should not be

punished as kidnapping where prosecution for other crimes is

more appropriate:     “[T]he rapist who forces his victim unto a

parked car or dark alley may be punished quite severely for the

crime of rape, but he does not thereby also become liable for

kidnapping.”    Commentary to § 212.1 at 223-24.         This Commentary

is highly relevant to this case, where CW testified that

Sheffield dragged her backwards towards the bushes in order to

“beat [her] up” or “fuck [her].”          Instead of being prosecuted

for attempted assault in the third degree and/or a sexual

offense, Sheffield was tried and punished solely for

kidnapping.11


11
      There was no evidence at trial regarding actual bodily injury or a
sexual offense. Where the defendant does not complete the underlying offense
(whether it be assault or sexual assault or some other offense), however, the
MPC Commentators characterized prosecution solely for kidnapping as
                                                              (continued. . .)

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B.    The “Restraint” Required by Kidnapping, HRS § 707-
      720(1)(d), is Restraint in Excess of Any Restraint
      Incidental to Inflicting, or Intending to Inflict, Bodily
      Injury or Subjecting, or Intending to Subject, Another
      Person to a Sexual Offense

      Sheffield asks this court to rule that the restraint

necessary to support a kidnapping conviction must be restraint

in excess of that necessary to commit an underlying unprosecuted

crime.    As HRS § 707-720(1)(d) now stands, it is unclear whether

the “restrain[t]” referenced in subsection (1) of the statute is

required to be 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:

             (1) A person commits the offense of kidnapping if the
             person intentionally or knowingly restrains another person
             with intent to:
             . . . .
             (d) Inflict bodily injury upon that person or subject that
             person to a sexual offense.

      Consider two examples in which restraint could be employed

by a defendant with the intent to inflict bodily injury or

subject another to a sexual offense.            First, a person might grab

another person’s arm and pull the other person a few feet to

land a punch, but fail to do so.            Second, a person might lead

another by knifepoint through an alley and into a deserted



(continued. . .)
“abusive”: “Where the underlying crime is not completed, prosecution for
kidnapping instead of attempt may amount to an end run around the special
doctrinal protections designed for uncompleted crimes.” Commentary to
§ 212.1 at 221. Hawaiʻi law, however, allows prosecution for kidnapping
without a completed offense.


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warehouse, for the purpose of committing a sexual offense, but

eventually fail.    In both instances, if the factfinder finds the

person restricted the other person’s movement in such a manner

as to interfere substantially with the other person’s liberty by

means of force, the restraining conduct would come under the

purview of HRS § 707-720(1)(d), because restraint was used with

the intent to inflict bodily injury or subject another person to

a sexual offense.    The restraint exercised in the first example,

however, is clearly incidental to the intended infliction of

bodily injury, whereas in the second example, the restraint

exercised is much more than incidental to the intended

subjection of a person to a sexual offense.          Nevertheless, both

defendants may be convicted of kidnapping, which carries a

twenty-year prison sentence.       This risk warrants the adoption of

the rule Sheffield advocates.

      The cases cited by Sheffield point to what has become a

majority rule among the states:       “kidnapping statutes do not

apply to unlawful confinements or movements ‘incidental’ to the

commission of other felonies.”       Frank J. Wozniak, Annotation,

Seizure or Detention for Purpose of Committing Rape, Robbery, or

Other Offense as Constituting Separate Crime of Kidnapping, 39

A.L.R.5th 283, § 2[a] (1996)).       The Court of Appeals of New

Mexico comprehensively examined this majority rule before



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adopting it in State v. Trujillo, 289 P.3d 238, 240 (N.M. Ct.

App. 2012).

      In that case, the defendant and another man broke into a

home.   289 P.3d at 240.      The defendant began striking one of the

home’s occupants with a metal bar.         Id.    The victim was able to

get on top of the defendant and hit him.           Id.     The defendant

then held the victim and called out to the other assailant for

help.   Id.     The other assailant struck the victim, so the

defendant was able to break free and continue beating the

victim.   Id.     The assault lasted approximately two to four

minutes before both assailants left.         Id.

      The defendant was tried and convicted of kidnapping and

aggravated battery, among other offenses.          289 P.3d at 240.        He

appealed his kidnapping conviction, arguing that the New Mexico

legislature “did not intend to punish restraint incidental to an

aggravated battery as kidnapping,” or, alternatively, that

insufficient evidence supported his kidnapping conviction

because “it failed to establish a restraint beyond that

incidental to the aggravated battery.”           Id.     The Court of

Appeals of New Mexico was persuaded by the defendant’s

arguments.

      The Trujillo court examined the legislative intent,

history, and purpose of the New Mexico kidnapping statute and

concluded that “applying the plain language would be ‘absurd,

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unreasonable, or unjust.’”        Id.    The court concluded that the

New Mexico legislature “could not have intended to increase

Defendant’s punishment three- or six-fold (from three years to

nine or eighteen years) for conduct that was merely incidental

to another crime.”       Id.   The Trujillo court also observed that

crimes of restraint were graded by the severity of punishment,

from false imprisonment (the least severe), to criminal use of

ransom (of intermediate severity), to kidnapping (the most

severe).     289 P.3d at 247.     It reasoned that the “gradated

system of penalties indicates that the [New Mexico] Legislature

recognized the special harm caused by movement or isolation of a

victim with the specified intent and sought to distinguish it

from restraint without that intent.”          Id.

      The Trujillo court noted that the majority rule among other

jurisdictions is that restraint or movement merely incidental to

some other crime will not support a conviction for kidnapping.

289 P.3d at 248.      In these other jurisdictions, three

formulations of the majority rule have emerged for determining

whether a restraint or movement is “incidental” to another

crime.    Id.   In summary, the three tests for incidental movement

or restraint are

             (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.




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           (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 not 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 significance
           independent of the other crime, in that it makes the other
           crime substantially easier to commit or substantially
           lessens the risk of detection.

Id.   The Trujillo court concluded, “The basic question to which

each of these tests is directed is whether the restraint or

movement increases the culpability of the defendant over and

above his culpability for the other crime.”          289 P.3d at 250

(citations omitted).      The court noted that “facts matter” in

kidnapping cases; therefore, whether restraint or movement is

incidental depends upon the totality of the circumstances.               289

P.3d at 251, 252.     Ultimately, the Trujillo court declined to

select a specific test among the three tests,12 holding instead

that the defendant’s momentary restraint of the victim in the

course of a fight failed to constitute kidnapping under any of

the tests.    289 P.3d at 250.

      We hereby follow the majority rule outlined in Trujillo,

and hold that the restraint necessary to support a kidnapping

conviction under HRS § 707-720(1)(d) must be restraint that is


12
      As a result, in New Mexico, courts analyze the defendant’s acts of
restraint under all three tests. See, e.g., State v. Tapia, 347 P.3d 738,
748-49 (N.M. Ct. App. 2015).



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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.13

C.    Jury Instructions

      Sheffield next argues that the circuit court plainly erred

in failing to instruct the jury that the restraint necessary to

support a conviction for kidnapping must be restraint that is

more than merely incidental to an accompanying (but here,

unprosecuted) crime.      For the reasons stated in the previous

section, we agree.      Such instructional error cannot be said to

be harmless beyond a reasonable doubt where, as here, there was

a reasonable possibility that the failure to give the

instruction contributed to Sheffield’s kidnapping conviction.


13
      As the issues are not before us, we do not address the restraint
necessary to support a conviction for “kidnapping” based on the other
subsections of HRS 707-720(1):

           (1) . . . intentionally or knowingly restrain[ing] another
           person with intent to (a) Hold that person for ransom or
           reward; (b) Use that person as a shield or hostage; (c)
           Facilitate the commission of a felony or flight thereafter;
           . . . (e) Terrorize that person or a third person; (f)
           Interfere with the performance of any governmental or
           political function; or (g) Unlawfully obtain the labor or
           services of that person, regardless of whether related to
           the collection of a debt.

We also do not address the restraint necessary to support a conviction for
“unlawful imprisonment in the first degree” under HRS § 707-721 (“A person
commits the offense of unlawful imprisonment in the first degree if the
person knowingly restrains another person under circumstances which expose
the person to the risk of serious bodily injury”) or “unlawful imprisonment
in the second degree” under HRS § 707-722 (“A person commits the offense of
unlawful imprisonment in the second degree if the person knowingly restrains
another person.”).



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      In examining kidnapping jury instructions from other

states, we note that New Mexico’s kidnapping statute is

substantially similar to ours, in that it defines kidnapping, in

pertinent part, as “the unlawful . . . restraining . . . of a

person, by force, . . . with intent . . . to inflict . . .

physical injury or a sexual offense on the victim.”14            N.M. Stat.

Ann. § 30-4-1(A)(4) (West 1978).15

       After adopting the majority rule concerning incidental

restraint in Trujillo, New Mexico amended its pattern jury

instruction on kidnapping to require the State “to prove that

the ‘taking or restraint . . . of [the victim] was not slight,

inconsequential, or merely incidental to the commission of

another crime[.]’”      State v. Sena, 419 P.3d 1240, 1248 (N.M. Ct.


14
      Again, HRS § 707-720(1)(d) defines “kidnapping” as “intentionally or
knowingly restrain[ing] another person with intent to . . . [i]nflict bodily
injury upon that person or subject that person to a sexual offense.”
15
      The full kidnapping statute provides the following:
            A. Kidnapping is the unlawful taking, restraining,
            transporting or confining of a person, by force,
            intimidation or deception, with intent:
            (1) that the victim be held for ransom;
            (2) that the victim be held as a hostage or shield and
            confined against his will;
            (3) that the victim be held to service against the victim’s
            will; or
            (4) to inflict death, physical injury or a sexual offense
            on the victim.
            B. Whoever commits kidnapping is guilty of a first degree
            felony, except that he is guilty of a second degree felony
            when he voluntarily frees the victim in a safe place and
            does not inflict physical injury or a sexual offense upon
            the victim.

N.M. Stat. Ann. § 30-4-1.



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App. 2018) (quoting New Mexico Uniform Jury Instruction 14-403

NMRA (2015)).16




16
      The full New Mexico Uniform Jury Instruction on Kidnapping reads as
follows, with footnotes omitted:

            For you to find the defendant guilty of [first degree]
            kidnapping [as charged in Count __________ ], the state
            must prove to your satisfaction beyond a reasonable doubt
            each of the following elements of the crime:

            1. The defendant [took] [or] [restrained] [or] [confined]
            [or] [transported] __________ (name of victim) by [force]
            [or] [intimidation] [or] [deception] [by __________
            (describe conduct)];

            [2. The defendant’s act was unlawful;]

            3. The defendant intended:
            [to hold __________ (name of victim) for ransom]
            [OR]
            [to hold __________ (name of victim) as a [hostage] [or]
            [shield] against __________’s (name of victim) will
            [OR]
            [to inflict [death] [or] [physical injury] [or] [a sexual
            offense] on __________ (name of victim)]
            [OR]
            [to [make __________ (name of victim) __________ (name
            specific act)] [or] [keep __________ (name of victim) from
            __________ (name specific act)] against __________’s (name
            of victim) will, for the purpose of __________ (identify
            benefit to defendant)];

            4. The [taking] [or] [restraint] [or] [confinement] [or]
            [transportation] of __________ (name of victim) was not
            slight, inconsequential, or merely incidental to the
            commission of another crime (or name of offense);]

            5. [The defendant did not voluntarily free __________ (name
            of victim) in a safe place;]
            [OR]
            [The defendant inflicted physical injury upon __________
            (name of victim) during the course of the kidnapping;]
            [OR]
            [The defendant inflicted a sexual offense upon __________
            (name of victim) during the course of the kidnapping;]

            6. This happened in New Mexico on or about the __________
            day of __________, __________.



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      The wisdom of adopting a similar pattern jury

instruction is clear to us.17        We hold that the circuit

court in this case plainly erred in not instructing the

jury that Sheffield’s restraint of CW had to be restraint

in excess of restraint incidental to any intended

infliction of bodily injury or a sexual offense upon CW.

D.    Substantial Evidence Supports Sheffield’s Kidnapping
      Conviction

      We must now address Sheffield’s first point of error on

appeal, in which he alleges insufficient evidence supported the

kidnapping conviction, because the restraint Sheffield used

against CW was only the restraint necessary to commit the

incidental and unprosecuted offense, assault in the third

degree.    The double jeopardy clause of article I, section 10 of

the Hawaiʻi Constitution requires a reviewing appellate court to

address a defendant’s express claim of insufficiency of the

evidence prior to remanding for a new trial based on trial

error.    State v. Davis, 133 Hawaiʻi 102, 118, 324 P.3d 912, 928

(2014).    Under our precedent, substantial evidence supports

Sheffield’s conviction.

      Generally speaking, Hawaiʻi appellate kidnapping cases have

affirmed kidnapping convictions based on acts of restraint by


17
      We suggest that the Standing Committee on Pattern Jury Instructions —
Criminal craft an instruction for Hawaiʻi consistent with this opinion.


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force that were longer in duration and more severe than the

restraint used by Sheffield.         See, e.g., Halemanu, 3 Haw. App.

300, 650 P.2d 587 (affirming kidnapping conviction after

concluding that appellant restrained the victim when he entered

the victim’s car and directed the victim to drive wherever the

appellant directed him, which ended up being from Honolulu to

Waianae and back); Yamamoto, 98 Hawaiʻi 208, 46 P.3d 1092

(affirming kidnapping conviction after concluding that appellant

restrained the victim by forcing her into a car at knifepoint,

driving to his apartment complex, then forcing her through a

parking lot at knifepoint); Valdivia, 95 Hawaiʻi 465, 24 P.3d 661

(affirming kidnapping conviction after concluding that appellant

restrained a police officer by pinning the police officer’s arm

against the steering wheel of a moving vehicle, then dragging

the officer 30 yards); State v. Veikoso, 126 Hawaiʻi 267, 270

P.3d 997 (2011) (affirming kidnapping conviction after

concluding that the defendant restrained CW by force by grabbing

her phone, striking her in the face and the back of the head

several times, grabbing her hair, and pulling her down to the

center console of his car, causing her to bleed and black out,

grabbing her hair again, and hitting her on the back of the

head).

      In Hernandez, 61 Haw. 475, 605 P.2d 75, however, this court

affirmed a co-defendant’s kidnapping conviction based on a
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fleeting moment of restraint.       In that case, Hernandez and a co-

defendant, Miller, had driven a woman up to a deserted area on

Waialae Iki Ridge.     61 Haw. at 476, 605 P.2d at 76.        Miller

sexually assaulted the woman multiple times on the mountain

ridge while Hernandez waited in the car.         Id.    When the woman

ran up to the car, Hernandez grabbed her and pushed her to the

ground, and at that point, Miller reached the woman and resumed

his attack.   61 Haw. at 477, 605 P.2d at 77.          This court held,

“Even though of short duration, under such circumstances the

actions of [Hernandez] constituted a substantial interference

with the victim’s liberty and, accordingly, a prohibited

restraint.”   61 Haw. at 479, 605 P.2d at 78.          The Hernandez

court quoted the Commentary to HRS § 702-720 to -722 to note

that “a short restraint in an area where the victim might

suffocate or come to other bodily harm would constitute a

substantial interference with liberty. . . .”           61 Haw. at 478-

79, 605 P.2d at 77.     It is clear in the Hernandez case that

Hernandez’s restraint of the woman occurred in an area where she

might come to other bodily harm, as the woman was in the process

of being sexually assaulted by Miller in a deserted area of

Waialae Iki Ridge.     Thus, the kidnapping conviction was

affirmed.   61 Haw. at 480, 605 P.2d at 78.

      In evaluating sufficiency, we view the evidence adduced in

the trial court in the strongest light for the prosecution.

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Applying this standard, substantial or “credible evidence of

sufficient quality and probative value” exists to “enable a

person of reasonable caution” to conclude that Sheffield’s

restraint of CW was more than merely incidental to his attempt

to assault CW.    Matavale, 115 Hawaii at 157-58, 166 P.3d at 330-

31.   A reasonable juror could conclude that Sheffield’s act of

grabbing onto the loop of CW’s backpack and dragging her

backwards five to ten steps was an intentional or knowing act

that restricted CW’s movement so as to substantially interfere

with her liberty by use of force, and that this restraint was in

excess of any restraint incidental to any intended infliction of

bodily injury or to any intended subjection of CW to a sexual

offense;   Sheffield’s statements that he was going to “beat [CW]

up” or “fuck [her]” allowed the jury to make a reasonable

inference that Sheffield intentionally or knowingly restrained

CW in this way with an intent to inflict bodily injury or

subject CW to a sexual offense.

      Sheffield’s sufficiency of the evidence point of error

therefore lacks merit.




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                             VI.   Conclusion

      Based on the reasons above, we vacate Sheffield’s

kidnapping conviction and remand this case to the circuit court

for further proceedings consistent with this opinion.

Matthew S. Kohm                           /s/ Mark E. Recktenwald
for petitioner
                                          /s/ Paula A. Nakayama
Emlyn Higa
for respondent                            /s/ Sabrina S. McKenna

                                          /s/ Richard W. Pollack

                                          /s/ Michael D. Wilson




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