NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT (CR. NO. 10-1-0819).
Jeffrey A. Hawk (Hawk Sing Ignacio & Waters) for Defendant-Appellant.
Sonja P. McCullen Deputy Prosecuting Attorney City and County of Honolulu for Plaintiff-Appellee.
Nakamura, C.J., Foley and Ginoza, JJ.
SUMMARY DISPOSITION ORDER
Defendant-Appellant Andrew Josiah Rodriguez (Rodriguez) appeals from a Judgment of Conviction and Sentence (Judgment) filed on March 19, 2012, in the Circuit Court of the First Circuit (circuit court). Judgment was entered against Rodriguez for Kidnapping in violation of Hawaii Revised Statutes (HRS) § 707-720(1) (e) (Supp 2012),  and Assault in the Third Degree in violation of HRS § 707-712 (1993 Repl.).
On appeal, Rodriguez contends that (1) the circuit court's instructions were prejudicially erroneous when they failed to define the term "terrorize, " and (2) there was no substantial evidence to support Rodriguez's conviction for Kidnapping.
Upon careful review of the record and the briefs submitted by the parties and having given due consideration to the arguments advanced and the issues raised by the parties, as well as the relevant statutory and case law, we resolve Rodriguez's points of error as follows:
(1) The circuit court did not err when it gave the jury instruction on the elements of the offense of Kidnapping without defining the term "terrorize." At trial, Rodriguez did not object to the jury instruction; therefore, it is his burden to rebut the presumption that jury instructions not objected to are correct. State v. Nichols, 111 Hawai'i 327, 337 n.6, 141 P.3d 974, 984 n.6 (2006).
"It is a grave error to submit a [criminal] case to a jury without accurately defining the offense charged and its elements." State v. Pinero, 70 Haw. 509, 526, 778 P.2d 704, 715 (1989) (citation and internal quotation marks omitted). An erroneous jury instruction is grounds for reversal "unless it affirmatively appears from the record as a whole that the error was not prejudicial." Pinero, 70 Haw. at 526, 778 P.2d at 716 (citation and internal quotation mark omitted).
The circuit court instructed the jury as follows:
In Count 1, Defendant Andrew Josiah Rodriguez is charged with the offense of Kidnapping.
A person commits the offense of Kidnapping if he intentionally or knowingly restrains a person with intent to terrorize that person.
There are three material elements of the offense of Kidnapping, each of which the prosecution must prove ...