FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT
Matthew S. Kohm for petitioner
Higa for respondent
RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON,
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 of Hawai'i Revised Statutes
("HRS") § 707-720(1)(d) (2014),  a class A felony
punishable with up to twenty years of imprisonment,
one count of third degree assault,  a misdemeanor punishable
with up to one year of imprisonment. 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 Circuit ("circuit court") and found
guilty on the kidnapping count. He now appeals, and this
court accepted transfer of the appeal from the ICA.
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 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 CWs 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.
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.
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 §
707-712(1)(a). Prior to trial, the State filed a motion to
dismiss Count Two without prejudice, which the circuit court
conviction relies on CWs testimony, which we summarize in the
light most favorable to the prosecution. CW was a 24-year-old
University of Hawai'i 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.
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.
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.
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.
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 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.
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 Hawai'i, 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
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 Hawai'i Pattern Jury Instructions - Criminal 9.00
(2014) to the evidence adduced at trial.
circuit court also instructed the jury as to sexual assault
in the first and second degree, as suggested by Hawai'i
Pattern Jury Instructions - Criminal 9.34
(1996). The court 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
Verdict, Conviction, Sentence, and Appeal
jury unanimously found Sheffield guilty as charged of
kidnapping. The circuit court then sentenced Sheffield to 20
years of imprisonment. Sheffield timely appealed, and we accepted
transfer of this case.
Standards of Review
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 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
State v. Matavale, 115 Hawai'i 149, 157-58, 166
P.3d 322, 330-31 (2007) (citation, quotation marks, and
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
State v. Henley, 136 Hawai'i 471, 478, 363 P.3d
319, 326 (2015) (citations omitted).
The Parties' Arguments on Appeal
Sheffield's Opening Brief
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 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
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 Hawai'i'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
support his position, Sheffield extensively quotes the
Commentary to the MPCs kidnapping offense. He notes that the
Commentators criticized the states' expansive
interpretation of 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."
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 (CD. Cal. 1992) .
then notes that there have been no Hawai'i 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 Hawai'i 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 Hawai'i 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 Hawai'i 208, 46 P.3d 1092 (App. 2002).
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.
next addresses his second point of error on appeal: whether
the circuit court plainly erred in failing to 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
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.