State v. Ishimine

• Decision Date: 04 August 2022
• Docket Number: SCWC-18-0000691
• Citation: 151 Hawai‘i 375,515 P.3d 192
• Parties: STATE of Hawai‘i, Respondent/Plaintiff-Appellee/Cross-Appellant, v. Lorrin Y. ISHIMINE, Petitioner/Defendant-Appellant/Cross-Appellee.
• Court: Hawaii Supreme Court

151 Hawai‘i 375

515 P.3d 192

STATE of Hawai‘i, Respondent/Plaintiff-Appellee/Cross-Appellant,

v.Lorrin Y. ISHIMINE, Petitioner/Defendant-Appellant/Cross-Appellee.

SCWC-18-0000691

Supreme Court of Hawai‘i.

AUGUST 4, 2022

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")¹ plainly erred² 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).

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."³

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.

B. ICA Proceedings

Ishimine appealed his conviction and sentence. The State cross-appealed.⁴ 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.

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.⁵ Ishimine, SDO at 15.

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.⁶

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...