LEONARD, PRESIDING JUDGE, AND WADSWORTH, J., WITH HIRAOKA, J., CONCURRING AND DISSENTING IN PART
OPINION OF THE COURT BY LEONARD, J.
In State v. Sheffield, 146 Hawai‘i 49, 60, 456 P.3d 122, 133 (2020), the Hawai‘i Supreme Court held that a circuit court plainly erred when it failed to instruct a jury that the restraint necessary to support a conviction for Kidnapping under Hawaii Revised Statutes (HRS ) § 707-720(1)(d) (2014) must be restraint that is more than incidental to an accompanying crime. The supreme court did not address the restraint necessary to support a conviction for Kidnapping based on other subsections of the Kidnapping statute. Here, we address the restraint necessary to support a Kidnapping conviction under HRS § 707-720(1)(e) (2014), and based on the supreme court's rationale, we hold that the restraint necessary to support a conviction for Kidnapping under HRS § 707-720(1)(e) must be restraint that is more than any restraint incidental to the intended terroristic threatening of the complaining witness. Accordingly, and based on the record in this case, we further hold that the trial court plainly erred in failing to give such an instruction, and that this error was not harmless beyond a reasonable doubt.
Defendant-Appellant Ephrim Richard Forbes (Forbes ) appeals from the August 8, 2019 Judgment of Conviction and Sentence (Judgment ), which was entered by the Circuit Court of the First Circuit (Circuit Court ).1 Forbes challenges his conviction for Kidnapping, in violation of HRS § 707-720(1)(e).
An O‘ahu grand jury indicted Forbes for: (1) Kidnapping under HRS § 707-720(1)(e) ;2 (2) Robbery in the First Degree under HRS § 708-840(1)(b)(i) (2014) (Robbery );3 and (3) Unauthorized Control of Propelled Vehicle (UCPV ) under HRS § 708-836 (2014).4 After a jury trial, Forbes was convicted of Kidnapping and UCPV. Count 2 (Robbery) was dismissed.
Forbes's conviction was based, in part, on the following evidence. The complaining witness (CW ) was a taxi driver who testified at trial through a Japanese interpreter. CW testified that, on May 17, 2018, he was dispatched to the Hampton Inn near Kapolei. He was told that his fare wanted to go to the airport. Forbes was sitting on the sidewalk when CW arrived at the Hampton Inn. CW testified that when Forbes got into his van, "It was kind of smelly so I didn't feel -- I didn't have kind of a good feeling." CW also "didn't like" the fact that Forbes was sitting on the ground.
The State moved into evidence a video recording of the interior of CW's van taken by a camera mounted on the windshield. The video showed CW and Forbes inside the van. The video was played for the jury, accompanied by the following audio:
Speaker 1: Hello? Are you (indiscernible)?
Speaker 2: (Indiscernible).
Speaker 1: No. Richard?
Speaker 2: (Indiscernible).
Speaker 1: Richard. You go to airport?
Speaker 2: (Inaudible).
Speaker 1: Okay. Which airline? Hm?
Speaker 2: (Inaudible).
Speaker 1: Hawaiian. Okay.
Speaker 2: (Indiscernible.)
Speaker 1: Hm?
Speaker 2: (Indiscernible). Hello? Hello? (Indiscernible) to the airport. (Indiscernible).
Speaker 1: I can go to airport now so --
Speaker 2: Huh?
Speaker 1: I can go to airport. No?
Speaker 2: (Indiscernible) still get a free ride (indiscernible).
Speaker 1: No, no, no. I don't want to take to -- I don't want to take to, you know.
Speaker 2: (Indiscernible), okay?
Speaker 1: (Indiscernible) one? So where are you like to go?
Speaker 2: (Indiscernible) keep going.
Speaker 1: Kapolei?
Speaker 2: Yeah. Yeah.
Speaker 1: Ko Olina, right?
Speaker 2: (Indiscernible).
Speaker 1: Which one?
Speaker 2: Campbell.
Speaker 1: Campbell.
Speaker 2: (Indiscernible) go to the very end.
Speaker 1: No. I don't think so.
Speaker 2: (Indiscernible).
Speaker 1: (Indiscernible) yeah?
Speaker 2: (laughing) No, further. (Indiscernible).
Speaker 1: (Indiscernible) here?
Speaker 2: No. Turn by (indiscernible).
Speaker 1: Here?
Speaker 2: (Indiscernible).
Speaker 1: Yeah, not here maybe.
Speaker 2: Hit it, hit it. Keep going. Keep going, going (indiscernible).
Speaker 1: No, no. It's not (indiscernible).
Speaker 2: It's okay (indiscernible) turn around. Go back to the bridge. The beach park is right there.
Speaker 1: No. Please. Please.
Speaker 2: Turn around. Hey. Turn around.
Speaker 1: I'm sorry.
Speaker 2: Turn around.
Speaker 1: Okay, okay.
Speaker 2: Turn the fuck around. Now.
Speaker 1: Okay, okay, okay.
Speaker 2: Put your hands up.
Speaker 1: Okay.
Speaker 2: Put your other hand up.
Speaker 1: Yeah. I'm sorry.
Speaker 2: Keep going.
Speaker 1: Okay.
Speaker 2: Keep going straight.
Speaker 1: Take it. Take it money [sic].
(Video stopped.)
(Emphasis added).
CW testified that, as he began driving toward the airport, Forbes said he was going to Hawaiian Air. After about 15 minutes, Forbes told CW to drive to Hale‘iwa (located on the other side of the island of O‘ahu). CW declined to drive to Hale‘iwa because he did not like to go that far; it was a "less popular place, kind of remote area." Forbes asked where CW wanted to go. CW responded, "Ko Olina." Forbes told CW to drive to Ko Olina (which is near Kapolei, where Forbes had been picked up). CW turned around and began driving toward Ko Olina. After ten to fifteen minutes, Forbes asked CW to take him to Campbell Industrial Park. Forbes began talking to his phone. At the end of the video, Forbes pulled the camera off the van's windshield. CW was then asked:
Q. What was going through your mind at that time?
A. I was scared.
Q. What were you scared of?
A. Before that he showed his gun and then ordered me to drive on, that's why.
Q. In your mind what did you think could happen?
A. I felt I may be shot .
....
Q. Now let's talk about what happened after the defendant took the camera off. How much longer did you drive with the defendant in your car?
A. When he shoved me the gun and also broke the camera, video camera, it's about three to five minutes that I drove, continued driving.
....
Q. Okay. Tell the jury exactly what happened after he took the camera off.
A. Anyway I was ordered to continue driving. Then -- so I -- tried to run away so I opened the door and then one step outside the -- the van, however, he pulled me back into the car. So first time I was -- I was holding my bag cash in [sic], so tried to get out with my cash bag. Then I got pulled back so second time I gave up the cash bag, dropped it. Then I run away.
Q. Okay. Did -- did you ever see the defendant with a gun?
A. Yes.
Q. Describe to the jury exactly what you saw with regard to the gun.
A. First of all, after showing -- showing the gun to me, he sat down deep in his seat and then just kind of holding the gun towards me. Then when I tried to run away from the car he used his gun and then the grip side, holding side, and hit my neck side, neck, and then -- so that's -- that's why I kind of -- I gave up running a way at the time.
Then right after that I drop my cash bag. Then I try to run away again.
Q. Okay. Describe to the jury the way the defendant was holding onto your cash bag.
A. When I -- first time I was trying to run away, he was just holding onto me. He wasn't holding to that bag or cash bag.
Q. And then what made you think that he was trying to get your cash bag?
A. Is that the time when he aim at me with his gun how I felt, I mean, about the money bag?
Q. Okay. Describe to the jury how the defendant was holding you and pulling you into the car.
A. He grabbed me at underarm here with my shirt and he pulled me back into the car.
Q. And where was your cash bag at that time?
A. I was holding the bag on [sic] my right hand.
Q. Okay.
A. At the time.
Q. So you're holding your cash bag with your right hand. Which side is the defendant pulling you on?
A. I was trying to get out of the driving side, get out, and so he pulled me back from the right-hand side, underarm side, and then pull me back into the car.
Q. Okay. But after you -- how was it that your cash bag came off of your body?
A. I think I let it go, fall onto the floor.
Q. And at that point were you able to get out of your van?
A. Yes.
Q. Because at that point the defendant released his grip on you?
A. I think it was like that.
(Emphasis added).
CW testified that he then asked for help from the driver of a vehicle behind his van. He got into the passenger side of the car and watched his van being driven away. He had left his money bag on the floor of the van.
About ten minutes later, with the police, CW saw his van and Forbes at Barbers Point Beach Park, where he identified Forbes to the police. Photographs of the injuries CW sustained when Forbes pulled at him, and when Forbes hit him with the "gun," were admitted into evidence without objection. They depict a scratch and an area of bruising on CW's right arm, as well as a small mark above CW's right temple and what appears to be bruising on his left ear. Photographs of CW's van, personal possessions, cash bag, and cash were also admitted into evidence without objection.
On cross-examination CW testified:
Q. But do you recall how -- you never told this officer that you were restrained by Mr. Forbes?
A. I -- I recall that I told the police -- police officer that I had to drive under the sort of duress of the -- under the -- the defendant's holding a gun against me.
Q. Okay. That you had to drive while the defendant was holding the gun, is that what you just said?
A. That's right.
Q. Because haven't you repeatedly said that there's only something that you thought was a gun that was brought out after you stopped the taxi in the middle of the road?
A. I recall after being kind of shown the -- the -- the pistol or gun that I think still I drove about five minutes or so afterwards.
Q. Okay. Do
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