Opinion
SCWC-18-0000691
08-04-2022
STATE of Hawai‘i, Respondent/Plaintiff-Appellee/Cross-Appellant, v. Lorrin Y. ISHIMINE, Petitioner/Defendant-Appellant/Cross-Appellee.
Alen M. Kaneshiro for petitioner Richard B. Rost, Wailuku, for respondent
Alen M. Kaneshiro for petitioner
Richard B. Rost, Wailuku, for respondent
McKENNA, WILSON, AND EDDINS, JJ.; WITH NAKAYAMA, J., DISSENTING, WITH WHOM RECKTENWALD, C.J., JOINS
OPINION OF THE COURT BY McKENNA, J.
I. Introduction
At issue in this appeal is whether the Circuit Court of the Second Circuit ("circuit court") plainly erred in failing to give a " Sheffield instruction" to a jury in a kidnapping trial. In this case, the defendant was charged with kidnapping under Hawai‘i Revised Statutes ("HRS") § 707-720(d)(1) (2014), which provides, "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 ...." Sheffield held that a jury must be instructed that the "restraint" necessary under HRS § 707-720(d)(1) 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 ...." State v. Sheffield, 146 Hawai‘i 49, 51, 456 P.3d 122, 124 (2020).
The Honorable Peter T. Cahill presided.
This issue was not raised in the notice of appeal because the notice of appeal predated State v. Sheffield, 146 Hawai‘i 49, 456 P.3d 122 (2020), discussed herein. After acceptance of certiorari, this court ordered and considered supplemental briefing pursuant to Hawai‘i Rules of Appellate Procedure Rule 28(b)(4)(D) (2022), which provides in relevant part:
[T]he appellate court, at its option, may notice a plain error not presented. If an appellate court, when acting on a case on appeal, contemplates basing the disposition of the case wholly or in part upon an issue of plain error not raised by the parties through briefing, it shall not affirm, reverse, or vacate the case without allowing the parties the opportunity to brief the potential plain-error issue prior to disposition. ...
See infra Sections IV.A and IV.C.
We hold that the circuit court erred in failing to so instruct the jury, and such error was not harmless beyond a reasonable doubt. Therefore, we vacate the ICA's April 15, 2020 Judgment on Appeal, entered pursuant to its February 27, 2020 Summary Disposition Order ("SDO"), and remand this case to the circuit court for further proceedings.
II. Background
A. Jury trial Proceedings
On August 18, 2016, the State charged Lorrin Y. Ishimine ("Ishimine") with one count of Kidnapping, in violation of HRS § 707-720(d)(1) (Count One); two counts of Felony Abuse of Family or Household Member, in violation of HRS § 709-906(1) and/or (8) (2014 & Supp. 2015 & 2016) (Counts Two and Three); and one count of Abuse of Family or Household Member, in violation of HRS § 709-906 (2014 & Supp. 2015 & 2016) (Count Four). Before trial, the circuit court dismissed Counts Two, Three, and Four without prejudice.
At Ishimine's jury trial on the remaining kidnapping count (Count One), the State called Maui Police Department ("MPD") Officers Victor Santana and Keola Wilhelm.
Officer Santana testified that he was asleep at home on the afternoon of August 17, 2016, when he heard a vehicle speeding down the street. He looked out his window and saw the vehicle pull into a driveway at a two-story house across from his apartment. Officer Santana saw a man exit the car, yelling and screaming and trying to get someone out of the vehicle. Officer Santana got dressed, and when he returned to the window, he saw the man grabbing a woman from behind and dragging her up the stairs of the two-story house. The woman was screaming for help, kicking her feet, and struggling to get away. The woman's screaming and struggling lasted for a minute, which was the entire time the man dragged her up the stairs. Officer Santana then called 911, watched the house for anyone entering or leaving, and awaited the arrival of responding officers.
Officer Keola Wilhelm testified that he was one of the responding officers and was briefed at the scene by Officer Santana. The responding officers approached the front door of the two-story home and spoke with a woman who initially stated that no one else was home. The woman eventually allowed the police officers inside the residence and directed them to a locked bedroom door. After knocking and announcing their presence three times, the police officers knocked down the bedroom door. Officer Wilhelm saw the defendant on the bed, holding a woman down and covering her mouth. Officer Wilhelm ordered the defendant to release the woman and exit the bedroom, and the defendant complied.
After the State rested, the defense rested as well, with Ishimine waiving his right to testify. The court then instructed the jury as follows on the offense of kidnapping:
The Defendant, LORRIN Y. ISHIMINE, 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 17th day of August, 2016, 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 sexual offense.
The circuit court gave the jury the following instruction on the definition of "restrain": "to restrict a person's movement in such a manner as to interfere substantially with her liberty by means of force." The jury found Ishimine guilty as charged of kidnapping. The jury also found that the State proved beyond a reasonable doubt that Ishimine did not voluntarily release the woman prior to trial. As a result of this finding, Ishimine 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 where "the defendant voluntarily released the victim, alive and not suffering from serious or substantial bodily injury, in a safe place prior to trial," respectively). Ishimine was sentenced to twenty years of imprisonment.
This definition of "restrain" was adapted from Hawai‘i Pattern Jury Instructions – Criminal 9.00 to reflect the evidence adduced at trial. The pattern jury instruction reads 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
(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.
The modified "restraint" instruction was given by agreement of the parties. The circuit court did not give the jury the Sheffield instruction because we had not decided Sheffield at the time of Ishimine's trial.
B. ICA Proceedings
Ishimine appealed his conviction and sentence. The State cross-appealed. Before the ICA, Ishimine's points of error were (1) that the circuit court erred in denying his motion to suppress evidence based on the warrantless entry of his home and bedroom; (2) that the circuit court erred in denying Ishimine's motion in limine to preclude hearsay statements made by the woman who answered the door of the residence and told police that Ishimine was not there; and (3) Ishimine's conviction was not supported by substantial evidence.
Upon cross-appeal, the State argued that the circuit court erred by (1) suppressing photographs of the inside of Ishimine's residence; (2) refusing to receive the complaining witness's preliminary hearing transcript into evidence; (3) precluding officer testimony of, and photographic evidence of, the complaining witness's physical condition; and (4) striking a portion of Ishimine's Presentence Investigation Report ("PSR") and ordering the Hawai‘i Paroling Authority ("HPA") to disregard that information in sentencing Ishimine to a minimum term of imprisonment.
In an SDO, the ICA rejected each of Ishimine's arguments. State v. Ishimine, CAAP-18-0000691 (App. 2020) (SDO) at 19. Addressing Ishimine's points of error, the ICA held that (1) exigent circumstances supported the warrantless entry into Ishimine's home and bedroom; (2) the circuit court did not abuse its discretion in allowing testimony that the woman who answered the door told police that Ishimine and the complaining witness were not in the home, as the statement was not admitted for the truth of the matter asserted but to show that the woman was willing to cover up Ishimine's presence; and (3) that substantial circumstantial evidence of Ishimine's state of mind supported his kidnapping conviction. Ishimine, SDO at 9, 13, 15. Therefore, the ICA affirmed Ishimine's conviction. Ishimine, SDO at 15.
As a result of the affirmance, the State's points of error on cross-appeal were mooted; however, under the "public interest" exception to the mootness doctrine, the ICA addressed the State's final point of error: that the circuit court erred in striking a portion of Ishimine's PSR and ordering the HPA to disregard that information in sentencing Ishimine to a minimum term of imprisonment. Ishimine, SDO at 15, 16, 18. The ICA found the argument without merit, as the circuit court had authority to modify the PSR, and the HPA would not have considered stricken material in a PSR. Ishimine, SDO at 18.
C. Certiorari Application
Ishimine filed an application for writ of certiorari raising the same legal issues he raised before the ICA. We accepted certiorari, however, to address whether the circuit court plainly erred in failing to give a " Sheffield instruction" in this case.
See supra note 2.
III. Standard of Review: Plain Error Review of Jury Instructions
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 [that] 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.
Sheffield, 146 Hawai‘i at 53, 456 P.3d at 126 (citation omitted).
IV. Discussion
A. Order for Supplemental Briefing
By order dated September 28, 2021, the full court directed the parties to file supplemental briefs addressing the following questions:
(1) whether the trial court plainly erred when it did not instruct the jurors that any "restraint of [the victim] had to be restraint in excess of restraint incidental to any infliction of bodily injury or a sexual offense upon [the victim]," as required by State v. Sheffield, 146 Hawai‘i 49, 61, 456 P.3d 122, 134 (2020) ; and
(2) whether such plain error, if any, was harmless beyond a reasonable doubt.
B. The Sheffield Case
We briefly summarize Sheffield to provide context for our order and for this decision. In Sheffield, the defendant (David M. Sheffield) followed a college student as she walked alone at night, announced his intention to beat her up and have sex with her, pulled a loop on her backpack as she tried to cross the street, and dragged her backwards about five to ten steps before she broke free. Sheffield, 146 Hawai‘i at 50, 456 P.3d at 123. Like Ishimine, Sheffield was charged with kidnapping, in violation of HRS § 707-720(1)(d). Id. Sheffield was also charged with third degree assault. Sheffield, 146 Hawai‘i at 51, 456 P.3d at 124. Like Ishimine, Sheffield proceeded to trial on just the kidnapping charge, because the State moved for, and was granted, dismissal of Sheffield's assault in the third degree charge before trial. Sheffield, 146 Hawai‘i at 51, 456 P.3d at 124.
A jury convicted Sheffield of kidnapping. Id. On appeal, Sheffield argued 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." Id. He also argued that the jury should be so instructed. Id. We agreed. Id.
After exploring the Model Penal Code ("MPC") and its Commentary, our kidnapping statute and its commentary, and the majority rule about "incidental restraint" among other jurisdictions, we held 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 the infliction or intended infliction of bodily injury or subjection or intended subjection of a person to a sexual offense." Sheffield, 146 Hawai‘i at 55-59, 456 P.3d at 128-32. We also held that the jury should be so instructed. Sheffield, 146 Hawai‘i at 60, 456 P.3d at 133. Such an instruction safeguards the defendant against a conviction for kidnapping based on acts of restraint incidental to other crimes.
In arriving at these holdings, we pointed out that the MPC's Commentary characterized prosecution solely for kidnapping (in lieu of prosecution for attempted assault or attempted rape) as "abusive" and an "end run around the special doctrinal protections designed for uncompleted crimes." Sheffield, 146 Hawai‘i at 58 n.11, 456 P.3d at 131 n.11. We also questioned whether the legislature intended the term "restraint" under our statutory scheme to support a kidnapping conviction for acts of restraint that are only incidental to other crimes:
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 warehouse, for the purpose of committing a sexual offense, but eventually fail. ... [B]oth defendants may be convicted of kidnapping, which carries a twenty-year prison sentence. This risk warrants the adoption of the rule Sheffield advocates.
Sheffield, 146 Hawai‘i at 58, 456 P.3d at 131.
We 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." Sheffield, 146 Hawai‘i at 59, 456 P.3d at 132 (citing State v. Trujillo, 289 P.3d 238, 248 (N.M. Ct. App. 2012) ). We summarized the three tests for "incidental restraint or movement" that have emerged in these jurisdictions 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.
Sheffield, 146 Hawai‘i at 59, 456 P.3d at 132 (citing Trujillo, 289 P.3d at 248 ). Whether restraint is merely incidental to another crime depends on the totality of the circumstances. Sheffield, 146 Hawai‘i at 59, 456 P.3d at 132 (citing Trujillo, 289 P.3d at 251, 252 ).
In Sheffield’s case, we held the circuit court plainly erred in failing to instruct the jury on "incidental restraint," and such a failure was not harmless beyond a reasonable doubt, because there was a reasonable possibility that the lack of an "incidental restraint" jury instruction contributed to Sheffield's conviction. Sheffield, 146 Hawai‘i at 60, 456 P.3d at 133. While we noted that a reasonable jury could find that Sheffield's act of restraint (pulling the complaining witness back five to ten feet) was more than merely incidental, we emphasized that such a question was for the jury, properly instructed, to decide. Sheffield, 146 Hawai‘i at 61, 62, 456 P.3d at 134, 135. Therefore, we vacated Sheffield's conviction and remanded his case to the circuit court for further proceedings. Sheffield, 146 Hawai‘i at 62, 456 P.3d at 135. With our Sheffield decision as a backdrop for Ishimine's case, we next address the parties’ arguments in supplemental briefing.
C. Arguments in Supplemental Briefing
1. The State's Arguments
The State argues that the trial court did not plainly err by failing to provide a Sheffield instruction to the jury. The State asserts the evidence showed that Ishimine's use of restraint (in forcing the complaining witness out of a vehicle then up a flight of stairs and into a residence) was far more than incidental to any intended infliction of bodily injury upon the complaining witness. The State points to the three tests for incidental restraint we summarized in Sheffield (i.e., (1) whether the restraint was significant, in and of itself, to warrant independent prosecution; (2) whether the restraint substantially increased the risk of harm over and above that necessarily present in the accompanying crime; and (3) whether the restraint, done to facilitate commission of another crime, makes the other crime substantially easier to commit or substantially lessens the risk of detection). 146 Hawai‘i at 59, 456 P.3d at 132 (citing Trujillo, 289 P.3d at 248 ). The State argues that Ishimine's act of dragging the complaining witness up a flight of stairs satisfied all three tests. First, the movement upstairs was "significant enough, in and of itself, to warrant independent prosecution" for kidnapping. Second, the movement upstairs "substantially increased the risk of harm over and above that necessarily present" in abuse of a family or household member, because the complaining witness could have been injured on the stairs. Third, Ishimine's movement of the complaining witness up the stairs, into the dwelling, and into a locked bedroom made abuse of a family or household member substantially easier to commit and lessened the risk of detection, as the crime would have been committed behind closed doors.
The State also points to the hypotheticals posed in the Sheffield opinion:
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 knife point through an alley and into a deserted warehouse, for the purpose of committing a sexual offense, but eventually fail.
Sheffield, 146 Hawai‘i at 58, 456 P.3d at 131. The State quotes this court as concluding that the restraint in the first example was "clearly incidental to the intended infliction of bodily injury," while the restraint in the second example was "much more than incidental to the intended subjection of a person to a sexual offense." Id. The State asserts that Ishimine's act of dragging the complaining witness up the stairs was more like the second hypothetical; therefore, no rational juror would have found that the restraint Ishimine used was merely incidental to the offense of abuse of a family or household member. Consequently, the State argues that the circuit court did not plainly err in failing to provide the jury with the Sheffield instruction.
The State maintains that, even if the trial court plainly erred in not providing a Sheffield instruction to the jury, the error was harmless beyond a reasonable doubt. The State argues that Ishimine's acts of dragging the CW up a flight of stairs, into a dwelling, then holding her in a locked bedroom cannot be considered incidental restraint as a matter of law. Further, the State compares Ishimine's actions to State v. Hernandez, where this court explained 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. 475, 478, 605 P.2d 75, 77 (1980). The State argues that Ishimine forced the complaining witness into a locked bedroom within a dwelling, with his hand over her mouth; the State contends that those acts could have caused the complaining witness to suffocate or come to other bodily harm. Therefore, the State concludes, the restraint Ishimine used was sufficient to support his kidnapping conviction, and no rational jury could have found otherwise.
2. Ishimine's Arguments
Ishimine counter-argues that the circuit court plainly erred in failing to give the jury the Sheffield instruction, and such error was not harmless beyond a reasonable doubt. He argues that the circuit court plainly erred in failing to give the Sheffield instruction because the jury could have found that Ishimine's acts of pulling the CW from the car or dragging the CW up the stairs constituted "restraint," but if those acts caused the CW pain, they could have also served as the basis for the abuse of family or household member charge. See HRS § 709-906 (2014 & Supp. 2015 & 2016) (criminalizing "physical abuse" and "harm" to a family or household member). He argues that the jury could have also found that Ishimine's act of holding the CW and covering her mouth constituted "restraint," but if that act restricted the CW's breathing it could have also served as the basis for the felony abuse of family or household member charge. See HRS § 709-906(8) (2014 & Supp. 2015 & 2016) (punishing abuse of a family or household member as a class C felony where the defendant "intentionally or knowingly imped[es] the normal breathing or circulation of the blood of the family or household member by applying pressure on the throat or neck. ...") Ishimine argues that, pursuant to Sheffield, the jury could not rely on the restraint incidental to the intended infliction of bodily injury as the same restraint supporting the kidnapping charge. Therefore, Ishimine argues, the circuit court plainly erred in not providing the jury with the Sheffield instruction.
Further, Ishimine maintains, the error was not harmless beyond a reasonable doubt, because the omission of a jury instruction on restraint diminished Ishimine's ability to present a complete defense against the kidnapping charge. This was because he did not have the opportunity to argue to the jury that the restraint supporting the kidnapping charge had to be more than incidental to any restraint necessary to inflict the underlying (but uncharged) conduct of abuse of a family or household member. D. Analysis
1. A Sheffield instruction was required
Ishimine's arguments are persuasive. We hold that the circuit court plainly erred by failing to provide the jury with an instruction on incidental restraint. We also conclude that the error was not harmless beyond a reasonable doubt. While we recognize the cogency of the State's arguments that Ishimine's act of restraint (namely, dragging the complaining witness up the stairs and into the locked bedroom) could have been independently charged as kidnapping, could have injured the complaining witness, and could have facilitated abuse of the complaining witness behind closed doors, it is the finder of fact that ultimately determines whether the restraint Ishimine used was more than merely incidental to the dismissed and untried abuse of family or household member offenses. Further, an important fact remains: the State proceeded to trial on just the kidnapping charge after dismissing the underlying abuse of family or household member charges. As we alluded to in Sheffield, that kind of prosecutorial decision could be characterized as "abusive" and an "end run around the special doctrinal protections designed for uncompleted crimes." Sheffield, 146 Hawai‘i at 58 n.11, 456 P.3d at 131 n.11.
We agree with Ishimine that the restraint present in this case (dragging the complaining witness from her car, up the stairs, and into a locked bedroom, then holding a hand over her mouth) likely provided the State with a basis for charging Ishimine with the three counts of Abuse of Family or Household Member. After dismissing those counts before trial, however, it was unjust for the State to rely on the conduct underlying those untried counts to serve as the basis for its kidnapping case. This is especially so when considering that conviction for Kidnapping as a Class A Felony carries with it a 20-year term of imprisonment, and conviction for the Abuse of Family or Household Member counts carries with it sentences of imprisonment of one year for a misdemeanor conviction and five years for a Class C Felony conviction. See HRS § 709-906 (5)(a)&(b) (2014 & Supp. 2015 & 2016) & 706-663 (2014 & Supp. 2016) (misdemeanor sentencing); HRS § 709-906(8) (2014 & Supp. 2015 & 2016) & 706-660(1)(b) & (2)(b) (2014 & Supp. 2016) (Class C felony sentencing).
Because the abuse of family or household member offenses were dismissed and untried, the jury could not have convicted Ishimine for "physical[ly] abus[ing] or harm[ing]" the complaining witness, as a misdemeanor, under HRS § 709-906 (2014 & Supp. 2015 & 2016), for his act of dragging the complaining witness from her car, up the stairs, and into a locked bedroom. Nor could the jury have convicted Ishimine of felony abuse of a family or household member for "intentionally or knowingly impeding the normal breathing or circulation of the blood of the family or household member by applying pressure on the throat or the neck. ..." HRS § 709-906(8) (2014 & Supp. 2015 & 2016).
Therefore, the jury chose in this case to convict Ishimine of kidnapping. Under Sheffield, however, in order for Ishimine to have been convicted of kidnapping, the State needed to prove that the restraint Ishimine used was more than just the restraint incidental to committing the underlying and untried abuse of family or household member offenses. Consequently, we hold that the circuit court plainly erred by failing to so instruct the jury. Further, such 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. Stated another way, when the jury is not made aware that more than just incidental restraint must support a kidnapping conviction, the "risk" of conviction based on an insufficient showing of restraint exists. Sheffield, 146 Hawai‘i at 58, 456 P.3d at 131.
We express no opinion as to whether a jury could find Ishimine guilty of kidnapping on remand. As the State points out, there are cases in which "a short restraint in an area where the victim might suffocate or come to other bodily harm" has supported a kidnapping conviction. See Hernandez, 61 Haw. at 478, 605 P.2d at 77. 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.
2. Response to dissent
The dissent asserts that this opinion "throws caution to the wind to override our adversarial system and address an issue Ishimine never raised." Dissenting Opinion at 151 Hawai'i at 386, 515 P.3d at 203. According to the dissent, Ishimine was not without recourse because even if his appellate counsel did not raise the failure to give a Sheffield instruction, Ishimine could file a Hawai‘i Rules of Penal Procedure Rule 40 post-conviction petition. Dissenting Opinion at 151 Hawai'i at 387 n.3, 513 P.3d at 204 n.3.
The dissent asserts Ishimine could assert ineffective assistance of counsel in such a petition. Dissenting Opinion at 151 Hawai'i at 387 n.3, 513 P.3d at 204 n.3. The dissent also asserts that " [i]n holding the missing jury instruction impacted Ishimine's substantial rights, today's majority questionably condones appellate counsel's provision of what the majority renders ineffective assistance." Dissenting Opinion at 151 Hawai'i at 387 n.3, 513 P.3d at 204 n.3. This assertion is unfair to appellate counsel. We have never suggested that appellate counsel was ineffective in not raising this issue on appeal or on certiorari; Sheffield was decided after the appeal was filed.
First, contrary to the dissent's assertion, exercise of plain error review does not override the adversarial process, even when we address an issue not raised by a defendant. Rather, plain error review is a historically well-recognized check on the adversarial process, necessary to correct obvious injustices.
The plain error doctrine has been recognized by the U.S. Supreme Court since at least 1896. See Wiborg v. U.S., 163 U.S. 632, 658, 16 S.Ct. 1127, 41 L.Ed. 289 (1896) ("[I]f a plain error was committed in a matter so absolutely vital to defendants, we feel ourselves at liberty to correct it"). The doctrine has since developed throughout the country, with almost every state having adopted some version of the plain error standard of appellate review. Tory A. Weigand, Esq., Raise or Lose: Appellate Discretion and Principled Decision-Making, 17 SUFFOLK J. TRIAL & APP. ADVOC. 179, 222 (2012).
Plain error review reflects the "careful balancing of [the court's] need to encourage all trial participants to seek a fair and accurate trial the first time around against [the court's] insistence that obvious injustice be promptly redressed." U.S. v. Frady, 456 U.S. 152, 163, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982) ; see also Weigand, supra, at 180 ("The discretionary approach to new or unpreserved issues on appeal is the result of the collision between the principle of party presentation underlying the adversarial process and the role of the appellate court as both the guardian of a fair proceeding and final arbiter of applicable law.").
The plain error doctrine applies even when an appellate court takes notice of error not brought to its attention by the parties. The United States Supreme Court has long recognized its authority to take notice of plain error not raised by a defendant. See, e.g., United Brotherhood of Carpenters & Joiners of Am. v. United States, 330 U.S. 395, 412, 67 S.Ct. 775, 91 L.Ed. 973 (1947) ("We have the power to notice a ‘plain error’ though it is not assigned or specified."); accord, Silber v. United States, 370 U.S. 717, 718, 82 S.Ct. 1287, 8 L.Ed.2d 798 (1962). See also, Greenlaw v. United States, 554 U.S. 237, 247, 128 S.Ct. 2559, 171 L.Ed.2d 399 (2008) ("This Court has indeed noticed, and ordered correction of, plain errors not raised by defendants, but we have done so only to benefit a defendant who had himself petitioned the Court for review on other grounds.").
Hence, Rule 24(1)(a) of the Rules of the Supreme Court of the United States (2019) clearly provides in part, "At its option, however, the Court may consider a plain error not among the questions presented but evident from the record and otherwise within its jurisdiction to decide."
This court has also historically exercised our authority to recognize plain errors not brought to our attention to redress obvious injustice. See, e.g., Hernandez, 61 Haw. at 481, 605 P.2d at 79 (lack of sufficient evidence to support conviction for specific type of sexual abuse); State v. Grindles, 70 Haw. 528, 530, 777 P.2d 1187, 1189 (1989) (defendant required to put on evidence before conclusion of State's evidence); State v. Getz, 131 Hawai‘i 19, 27, 313 P.3d 708, 716 (2013) (failure to issue specific unanimity instruction); State v. DeLeon, 131 Hawai‘i 463, 485, 319 P.3d 382, 404 (2014) (preclusion of doctor's testimony regarding probable effects of cocaine on decedent).
The dissent cites to dicta in our cases saying "a party must look to [their] counsel for protection and bear the cost of counsel's mistakes." State v. Kelekolio, 74 Haw. 479, 515, 849 P.2d 58, 75 (1993) ; State v. Fox, 70 Haw. 46, 55-56, 760 P.2d 670, 675-76 (1988). The dissent fails to acknowledge, however, that in those very cases, we exercised plain error review to correct obvious injustices. In Kelekolio, we noticed plain error due to the trial court's failure to conduct a competency hearing before complainant's testimony. 74 Haw. at 523-24, 849 P.2d at 78. In Fox, we noticed plain error due to the trial court's admission of evidence grounded on statements made in the course of plea discussions. 70 Haw. at 56, 760 P.2d at 676.
Thus, plain error review has long been exercised by courts in this country as a necessary tool to correct obvious injustices that otherwise occur in the adversarial system. Accordingly, Rule 52(b) of the Hawai‘i Rules of Penal Procedure provides that "[p]lain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court." And Hawai‘i Rules of Appellate Procedure ("HRAP") Rule 28 (b)(4)(D) provides in part:
Points not presented in accordance with this section will be disregarded, except that the appellate court, at its option, may notice a plain error not presented. If an appellate court, when acting on a case on appeal, contemplates basing the disposition of the case wholly or in part upon an issue of plain error not raised by the parties through briefing, it shall not affirm, reverse, or vacate the case without allowing the parties the opportunity to brief the potential plain-error issue prior to disposition. ...
The second sentence from HRAP Rule 28 (b)(4)(D) quoted above was added effective January 1, 2022.
Moreover, second, the dissent does not even discuss the fact that this court unanimously ordered supplemental briefing on the issues pursuant to this recently-added language. Hence, both Ishimine and the State submitted supplemental briefing and argued their positions on the questions addressed.
Third, with respect to the dissent's allegedly available "recourse," Ishimine would not have been entitled to counsel if his conviction was affirmed by this court without addressing the failure to give a Sheffield instruction. Thus, he may never have become aware of the issue. Even if he did and he then filed a pro se Rule 40 petition in the circuit court, whether or not the circuit court found a colorable claim and appointed counsel, there would be a substantial delay before the issue ever reached this court. Defendants should not have to languish before courts address whether their substantial rights have been violated. Rather, fundamentally, this court has the jurisdiction, power, and obligation to "promot[e] justice in matters pending before it." Thus, contrary to the dissent's assertion, our "invocation of plain error jurisdiction" neither "constitutes judicial overreach" nor "substantially undermines our adversarial system." Dissenting Opinion at 151 Hawai'i at 385, 515 P.3d at 202.
We have repeatedly cited to HRS § 602-5(6) (2016), which provides this court with "jurisdiction and power[ ]" "[t]o ... take such ... steps as may be necessary to carry into full effect the powers which are or shall be given to it by law or for the promotion of justice in matters pending before it."
The dissent also asserts that we "silently dismiss[ ] our precedent ... for determining ... whether the [instructional] defect was harmless beyond a reasonable doubt." Dissenting Opinion at 151 Hawai'i at 385, 515 P.3d at 202. We disagree. We have clearly held that "an appellate court will reverse for plain error in jury instructions where the error cannot be said to be harmless beyond a reasonable doubt (i.e., considering the record as a whole, there is a reasonable possibility that the error contributed to the defendant's conviction)." State v. Nichols, 111 Hawai‘i 327, 329, 141 P.3d 974, 976 (2006). The dissent would rule as a matter of law that the restraint exercised here was more than incidental. Dissenting Opinion at 151 Hawai'i at 389, 515 P.3d at 206. Although we recognize the cogency of the State's arguments regarding the three tests for incidental restraint, the finder of fact is the ultimate arbiter of the degree of restraint Ishimine used against the complaining witness.
Further, the dissent erroneously asserts that we "silently dismiss[ ] our precedent identifying three tests for determining whether the jury instruction was necessary. ..." Dissenting Opinion at 151 Hawai'i at 385, 515 P.3d at 202. The dissent misunderstands the purpose of the three tests. The three tests assist the jury in understanding whether the restraint used by the defendant could support a kidnapping conviction because the restraint is more than just incidental to the commission of some other crime. See Sheffield, 146 Hawai‘i at 59, 456 P.3d at 132 ("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." In these other jurisdictions, three formulations of the majority rule have emerged for determining whether a restraint or movement is "incidental" to another crime.) (citing Trujillo, 289 P.3d at 248 ). The three tests are not, as the dissent argues, used to "determin[e] whether the jury instruction was necessary." Dissenting Opinion at 151 Hawai'i at 385, 515 P.3d at 202.
Hence, considering this record as a whole, there is a reasonable possibility the failure to give a Sheffield instruction contributed to the kidnapping conviction. In contrast with the dissent, "we are unwilling to speculate as to what the jury would have done had it been given a proper ... instruction." See Nichols, 111 Hawai‘i at 340, 141 P.3d at 987.
V. Conclusion
The circuit court in this case plainly erred by failing to provide the jury with a Sheffield instruction. This error was not harmless beyond a reasonable doubt. Consequently, we vacate the ICA's April 15, 2020 judgment on appeal and remand this case to the circuit court for further proceedings consistent with this opinion.
DISSENTING OPINION BY NAKAYAMA, J., WITH WHOM RECKTENWALD, C.J., JOINS
Today's majority invokes this court's plain error jurisdiction to vacate Lorrin Y. Ishimine's (Ishimine) conviction for kidnapping because of an unchallenged deficiency in the circuit court's jury instructions. In so doing, the majority erodes the jurisdictional guardrails that protect our adversarial system. Furthermore, the majority silently dismisses our precedent identifying three tests for determining whether the jury instruction was necessary and, in turn, whether the defect was harmless beyond a reasonable doubt. The proper application of these tests reveals that Ishimine could not have been harmed by the missing jury instruction.
Under these circumstances, the majority's invocation of plain error jurisdiction constitutes judicial overreach. Accordingly, I respectfully dissent.
I. DISCUSSION
A. Today's majority's invocation of this court's plain error jurisdiction substantially undermines our adversarial system.
Hawaii's appellate courts have long maintained "the power, sua sponte, to notice plain errors or defects in the record affecting substantial rights not properly brought to the attention of the trial judge or raised on appeal." State v. Iaukea, 56 Haw. 343, 355, 537 P.2d 724, 733 (1975) (citations omitted). However, "[t]his court's power to deal with plain error is one to be exercised sparingly and with caution because the plain error rule represents a departure from a presupposition of the adversary system—that a party must look to his or her counsel for protection and bear the cost of counsel's mistakes." State v. Kelekolio, 74 Haw. 479, 515, 849 P.2d 58, 74-75 (1993) (citing State v. Fox, 70 Haw. 46, 55-56, 760 P.2d 670, 675-76 (1988) ). Moreover, a key "premise of our adversarial system is that appellate courts do not sit as self-directed boards of legal inquiry and research, but essentially as arbiters of legal questions presented and argued by the parties before them." Carducci v. Regan, 714 F.2d 171, 177 (D.C. Cir. 1983) ; see also United States v. Burke, 504 U.S. 229, 246, 112 S.Ct. 1867, 119 L.Ed.2d 34 (1992) (Scalia, J., concurring) ("The rule that points not argued will not be considered is more than just a prudential rule of convenience; its observance, at least in the vast majority of cases, distinguishes our adversary system of justice from the inquisitorial one.").
Today's majority throws caution to the wind to override our adversarial system and address an issue Ishimine never raised. On appeal and on application for writ of certiorari, Ishimine sought review of (1) the circuit court's denial of a motion to suppress, (2) the circuit court's decision to admit certain testimony, and (3) whether substantial evidence supported Ishimine's conviction for kidnapping. At no point did Ishimine independently contend that his conviction should be vacated because of a deficiency in the circuit court's jury instructions.
Instead of requiring Ishimine to "look to his counsel to protect him," the court acted as a "self-directed board[ ] of legal inquiry and research" and identified for Ishimine a mistake committed by his counsel. Kelekolio, 74 Haw. at 515, 849 P.2d at 74-75 ; Carducci, 714 F.2d at 177 ; see also State v. Sheffield, 146 Hawai‘i 49, 59, 456 P.3d 122, 133 (2020). Today's majority now dismisses Ishimine's failure to challenge the sufficiency of the jury instructions on his own volition "because the notice of appeal predated State v. Sheffield [.]"
But when Ishimine filed his notice of appeal has no bearing on his ability to challenge the sufficiency of the jury instructions.
Under Hawai‘i Rules of Appellate Procedure (HRAP) Rule 3(c) (2018), which specifies the contents of a notice of appeal,
(1) The notice of appeal shall identify the party or parties taking the appeal either in the caption or the body of the notice of appeal. An attorney representing more than one party may fulfill this requirement by describing those parties with such terms as "all plaintiffs," "the defendants," "plaintiffs A, B, et al.," or "all defendants except X." In a class action, whether or not the class has been certified, it is sufficient for the notice of appeal to name one person qualified to bring the appeal as representative of the class. In cases where fictitious titles are authorized by law, the first and last initials of the party or parties shall be used. In the event that a case involves parties bearing the same initials, middle initials shall be added.
(2) The notice of appeal shall designate the judgment, order, or part thereof and the court or agency appealed from. A copy of the judgment or order shall be attached as an exhibit. Forms 1, 2, and 3 in the Appendix of Forms are suggested forms of notices of appeal. An appeal shall not be dismissed for informality of form or title of the notice of appeal.
Neither HRAP Rule 3(c) nor the referenced forms require an appellant to articulate points of error in their notice of appeal. Contra HRAP Rule 28(b)(4) (2016) ("[T]he appellant shall file an opening brief[ ] containing ... [a] concise statement of the points of error set forth in separately numbered paragraphs. Each point shall state: (i) the alleged error committed by the court or agency[.]").
In any event, Ishimine has had numerous opportunities to raise a jury-instruction claim since he filed his notice of appeal. This court published Sheffield on January 2, 2020. 146 Hawai‘i 49, 456 P.3d 122. The Intermediate Court of Appeals (ICA) did not file its summary disposition order in the underlying appeal until February 27, 2020. Pursuant to HRAP Rule 28(j), Ishimine could have "br[ought] to the appellate court's attention pertinent and significant authorities published after [the parties’] brief[s] ha[d] been filed, but before a decision." Ishimine did not.
HRPP Rule 28(j) (2016) provides in whole:
Citation of supplemental authorities. Parties may, by letter to the appellate clerk, bring to the appellate court's attention pertinent and significant authorities published after a party's brief has been filed, but before a decision. A copy of the letter, setting forth the citations, shall be served at or before the time of filing as provided by Rule 25(b) of these Rules. The letter shall provide references to either the page(s) of the brief or a point argued orally to which the citations pertain. The letter shall, without argument, state the reasons for the supplemental citations. Any response shall be made promptly and shall be similarly limited.
Nearly four months later, on June 9, 2020, Ishimine filed his application for writ of certiorari. Ishimine could have used his application to ask this court to address whether the circuit court erred by not instructing the jury that the restraint at issue had to be in excess of restraint incidental to an accompanying crime. He did not.
Under these circumstances, the adversarial system would require Ishimine to bear the cost of his appellate counsel's repeated mistake. Kelekolio, 74 Haw. at 515, 849 P.2d at 74-75. Instead, today's majority upends the adversarial system and takes up an inquisitorial role. See Burke, 504 U.S. at 246, 112 S.Ct. 1867 (Scalia, J., concurring). As detailed below, Ishimine has not suffered a substantial injury which merits "a departure from [the] presupposition of the adversary system." Kelekolio, 74 Haw. at 515, 849 P.2d at 74-75. This case is therefore not one which merits departure from the adversarial system. See id.
Ishimine has been represented by the same attorney at all stages of the appellate proceedings.
In holding the missing jury instruction impacted Ishimine's substantial rights, today's majority questionably condones Ishimine's appellate counsel's provision of what the majority renders ineffective assistance.
When the denial of the right to effective assistance of counsel is raised ... [t]he defendant has the burden of establishing ineffective assistance of counsel and must meet the following two-part test: 1) that there were specific errors or omissions reflecting counsel's lack of skill, judgment, or diligence; and 2) that such errors or omissions resulted in either the withdrawal or substantial impairment of a meritorious defense.
State v. Aplaca, 74 Haw. 54, 66-67, 837 P.2d 1298, 1305 (1992) (quoting State v. Smith, 68 Haw. 304, 309, 712 P.2d 496, 500 (1986) ). Here, Ishimine's appellate counsel did not raise a jury instruction claim for nearly two years after this court published Sheffield. Absent this court's intervention, this failure would have substantially impaired what today's majority deems a meritorious defense.
Moreover, had appellate counsel's failure to raise a jury instruction challenge impacted Ishimine's substantial rights, but see infra, Ishimine would not have been left without recourse. In such a scenario, Ishimine could file a petition pursuant to Hawai‘i Rules of Penal Procedure (HRPP) Rule 40 (2006) asserting ineffective assistance of counsel. See State v. Fields, 115 Hawai‘i 503, 529 & n.17, 168 P.3d 955, 981 & n.17 (2007). The majority dismisses this avenue because Ishimine "may never have become aware of the issue." But this is a feature of our adversarial system, not a bug. See Kelekolio, 74 Haw. at 515, 849 P.2d at 74-75. The majority further justifies circumventing our system of appellate review because "there would be a substantial delay before the issue ever reached this court." By such logic, this court should no longer sit as an appellate court, but should intervene and weigh in upon every legal issue raised while cases are pending before the trial courts. This would subvert the very concept of appellate review.
B. Today's majority's exercise of plain error jurisdiction is unwarranted because the alleged instructional error was harmless beyond a reasonable doubt.
In addition to the restraint imposed by the presuppositions of our adversarial system, this court's plain error jurisdiction has long been limited to "[p]lain errors or defects affecting substantial rights." HRPP Rule 52(b) ; see also, e.g., State v. Onishi, 59 Haw. 384, 385, 581 P.2d 763, 765 (1978) ("An alleged error in an instruction to which no objection was made before the trial court will not be considered on appeal, unless it is shown that the substantial rights of the defendant have been affected." (citations omitted)). In contrast, "we will deem harmless beyond a reasonable doubt, and therefore disregard, ‘any error, defect, irregularity[,] or variance’ that ‘does not affect [the] substantial rights of a defendant.’ " State v. Aplaca, 96 Hawai‘i 17, 22, 25 P.3d 792, 797 (2001) (quoting HRPP Rule 52(a) ).
HRPP Rule 52 (2000) provides:
(a) Harmless error. Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded.
(b) Plain error. Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court.
A close inspection of the record reveals that the jury-instructions defect was harmless beyond a reasonable doubt.
Ishimine was not harmed because, as a matter of law, Ishimine's restraint of the Complainant was not incidental. This court held in Sheffield 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." 146 Hawai‘i at 59, 456 P.3d at 132. In reaching this holding, we recognized "three tests for incidental movement or restraint":
HRS § 707-720(1)(d) (2014) provides "(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."
(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 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. (quoting State v. Trujillo, 289 P.3d 238, 248 (N.M. Ct. App. 2012) ).
The application of each of these tests reveals that
Neither the Trujillo court nor this court selected a single test to apply when evaluating whether restraint or movement is incidental. Id. (citing Trujillo, 289 P.3d at 250 ).
Ishimine's restraint of Complainant was not merely incidental to an accompanying crime. First, neither Ishimine nor the majority disputes that Ishimine's confinement, movement, and detention of Complainant was significant enough, in and of itself, to warrant independent prosecution.
Second, Ishimine's detention and movement of Complainant substantially increased the risk of harm over and above that necessarily present in the accompanying crimes with which the State of Hawai‘i (the State) charged Ishimine. Pursuant to HRS § 709-906(1), a person commits the offense of abuse of a family or household member if they "physically abuse a family or household member." Although the statute does not define "physical abuse," this court has recognized that the suffering of physical harm is sufficient to constitute physical abuse. State v. Kameenui, 69 Haw. 620, 622, 753 P.2d 1250, 1252 (1988). Additionally, HRS § 709-906(8) makes the "intentional[ ] or knowing[ ] impeding [of] normal breathing or circulation of the blood of [a] family or household member by applying pressure on the throat or neck" unlawful. The threshold of injury required to commit either of the alleged accompanying crimes is therefore low. In contrast, Ishimine's act of dragging Complainant up a flight of stairs — while Complainant was kicking and screaming — presented a substantial risk of injury to Complainant. A single misstep could have proven fatal.
HRS § 709-906 (2014 & Supp. 2016) provides in relevant part:
Abuse of family or household members; penalty. (1) It shall be unlawful for any person, singly or in concert, to physically abuse a family or household member or to refuse compliance with the lawful order of a police officer under subsection (4)....
For the purposes of this section:
...
"Family or household member":
(a) Means spouses or reciprocal beneficiaries, former spouses or reciprocal beneficiaries, persons in a dating relationship as defined under section 586-1, persons who have a child in common, parents, children, persons related by consanguinity, and persons jointly residing or formerly residing in the same dwelling unit[.]
....
(8) Where the physical abuse consists of intentionally or knowingly impeding the normal breathing or circulation of the blood of the family or household member by applying pressure on the throat or the neck, abuse of a family or household member is a class C felony.
Third, it is indisputable that Ishimine's act of moving Complainant into the apartment and restraining her within made any other crime easier to commit or substantially lessened the risk of detection. The only reason Ishimine was arrested and charged in the first place was because an off-duty officer observed Ishimine's actions outside of the apartment. As Ishimine insists, his confinement of Complainant indoors provided "ample time" during which he could have injured Complainant.
The tests this court identified in Sheffield therefore lead to the conclusion that, as a matter of law, Ishimine's restraint of Complainant was "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." See 146 Hawai‘i at 59, 456 P.3d at 132. In turn, Ishimine could not have been harmed by the deficiency in the circuit court's jury instructions.
However, today's majority makes no attempt to apply any of Sheffield’s tests to evaluate whether Ishimine's substantial rights were impacted. The majority instead silently dismisses the Sheffield tests because of Sheffield ’s allusion to the possibility that the prosecutorial decision to dismiss accompanying charges "could be characterized as ‘abusive’ and an ‘end run around the special doctrinal protections designed for uncompleted crimes.’ " (Quoting Sheffield, 146 Hawai‘i at 58 n.11, 456 P.3d at 131 n.11.) (Emphasis added.) But the majority's concern with abusive prosecution here is completely unfounded.
Although Sheffield did not explicitly apply the three tests to evaluate whether the restraint at issue in that case was more than incidental, the Sheffield court recognized that a scenario where "a person might grab another person's arm and pull the other person a few feet to land a punch" is "clearly incidental." 146 Hawai‘i at 58, 456 P.3d at 131. The degree of restraint present in such a scenario is nearly identical to the degree of restraint upon which defendant David M. Sheffield was convicted: "grabb[ing] [the complaining witness's] backpack and pull[ing] her 5-10 steps backward" in order to assault her. Id. at 54, 456 P.3d at 127.
Furthermore, the application of the three tests reveals that such restraint could be merely incidental because (1) it would not be significant enough to warrant independent prosecution for kidnapping; (2) it did not substantially increase the risk of harm over and above that present in an assault; and (3) it did not make an assault substantially easier to commit or reduce the risk of detection. See id. at 59, 456 P.3d at 132.
To the contrary, the facts here more closely resemble the example of restraint that Sheffield held would be "much more than incidental," where a hypothetical defendant might "lead another by knifepoint through an alley and into a deserted warehouse, for the purpose of committing a sexual offense, but eventually fail." Id. at 58, 456 P.3d at 131.
First, as the Sheffield court noted,
the [Model Penal Code (MPC)] Commentators characterized prosecution solely for kidnapping as "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."
146 Hawai‘i at 58 n.11, 456 P.3d at 131 n.11 (quoting MPC § 212.1 cmt. at 221). Thus, the MPC Commentators’ concern over abusive prosecution arises when "the underlying crime is not completed." See id. In this case, there is no evidence that the intended physical injury with which the majority is concerned was inchoate and not completed. Second, in any event, the Sheffield court indicated that the MPC Commentator's concerns were inapposite because "Hawai‘i law, however, allows prosecution for kidnapping without a completed offense." Id. (emphasis added). Third, there is no evidence in the record that the State dismissed the accompanying charges as an abusive prosecution tactic. Under these circumstances, the majority's concern does not merit silently overriding Sheffield’s recognition of three tests for incidental movement or restraint.
The majority further undermines the Sheffield tests by proclaiming that "[t]he three tests assist the jury in understanding whether the restraint used by the defendant could support a kidnapping conviction because the restraint is more than just incidental to the commission of some other crime," and thus are not used to determine whether the jury instruction was necessary. To the contrary, the Sheffield tests were developed "to determine whether [the] confinements or movements involved, where an offense separate from kidnapping has occurred, are such that kidnapping may also be charged and prosecuted." Laura Hunter Dietz, 1 Am. Jur. 2d Abduction & Kidnapping § 10 (2012) (cited by Trujillo, 289 P.3d at 248 ). Both Sheffield and today's majority acknowledge as much. 146 Hawai‘i at 59, 456 P.3d at 132 (citing Trujillo, 289 P.3d at 248 ). In turn, the application of these tests necessarily determines whether a more-than-incidental-restraint instruction is required: if the restraint can be considered incidental, the court must provide the instruction; if the restraint cannot be considered incidental, the court need not provide the instruction. Id.
The jury-instructions defect was also harmless beyond a reasonable doubt because the jury could not have convicted Ishimine of any of the accompanying charges. It is well-established that in order for a jury to convict a defendant, "[t]he jury must unanimously find that each material element of the offense has been proven—the conduct, the attendant circumstances, and the result of conduct—as well as the mental state requisite to each element." State v. Jones, 96 Hawai‘i 161, 169, 29 P.3d 351, 359 (2001) (citations omitted). One of the material elements of an abuse of a family or household member charge is that the complainant qualifies as a "family or household member." See HRS § 709-906(1) (" ‘[F]amily or household member’: (a) Means spouses or reciprocal beneficiaries, former spouses or reciprocal beneficiaries, persons in a dating relationship as defined under section 586-1, persons who have a child in common, parents, children, persons related by consanguinity, and persons jointly residing or formerly residing in the same dwelling unit."). However, neither party introduced any evidence that Complainant qualified as a "family or household member." Absent such evidence, the State could not have met its burden of proof to establish every material element of the accompanying abuse of a family or household member charges. See State v. Lima, 64 Haw. 470, 474, 643 P.2d 536, 539 (1982). The majority therefore errs in concluding that the jury could not have convicted Ishimine under HRS § 709-906 only because those offenses "were dismissed and untried."
In turn, the majority improperly vacates Ishimine's conviction based upon an error that did not affect his substantial rights. Aplaca, 96 Hawai‘i at 22, 25 P.3d at 797.
II. CONCLUSION
For the foregoing reasons, today's majority improperly invokes this court's plain error jurisdiction to vacate Ishimine's conviction. Because the majority does not address any of the points of error raised by Ishimine, I would dismiss the application for writ of certiorari as improvidently granted. I respectfully dissent.