State v. Ishimine.

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Electronically Filed
Supreme Court
SCWC-XX-XXXXXXX
04-AUG-2022
09:05 AM
Dkt. 20 OP
IN THE SUPREME COURT OF THE STATE OF HAWAIʻI

---oOo---
________________________________________________________________

STATE OF HAWAIʻI,
Respondent/Plaintiff-Appellee/Cross-Appellant,

vs.

LORRIN Y. ISHIMINE,
Petitioner/Defendant-Appellant/Cross-Appellee.
________________________________________________________________

CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-XX-XXXXXXX; CASE NO. 2PC161000679

SCWC-XX-XXXXXXX

AUGUST 4, 2022

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

1 The Honorable Peter T. Cahill presided.
2 This issue was not raised in the notice of appeal because the notice of
appeal predated State v. Sheffield, 146 Hawaiʻi 49, 456 P.3d 122 (2020),
discussed herein. After acceptance of certiorari, this court ordered and
(continued . . . )
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give a “Sheffield instruction” to a jury in a kidnapping trial.

In this case, the defendant was charged with kidnapping under

Hawaiʻi 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 Hawaiʻi 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

considered supplemental briefing pursuant to Hawaiʻi 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.

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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

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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

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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 Hawaiʻi, 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

3 This definition of “restrain” was adapted from Hawaiʻi 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.

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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-XX-XXXXXXX (App. 2020) (SDO) at 19.

4
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
Hawaiʻi Paroling Authority (“HPA”) to disregard that information in sentencing
Ishimine to a minimum term of imprisonment.

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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

5
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.

6 See supra note 2.

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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 Hawaiʻi 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 Hawaiʻi 49,
61, 456 P.2d 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

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street, and dragged her backwards about five to ten steps before

she broke free. Sheffield, 146 Hawaiʻi 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 Hawaiʻi 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 Hawaiʻi 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
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or intended subjection of a person to a sexual offense.”

Sheffield, 146 Hawaiʻi at 55-59, 456 P.3d at 128-32. We also

held that the jury should be so instructed. Sheffield, 146

Hawaiʻi 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

Hawaiʻi 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 Hawaiʻi 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,
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146 Hawaiʻi 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 Hawaiʻi 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 Hawaiʻi 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 Hawaiʻi at 133, 456 P.3d

at 60. While we noted that a reasonable jury could find that

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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 Hawaiʻi 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 Hawaiʻi 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,

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makes the other crime substantially easier to commit or

substantially lessens the risk of detection). 146 Hawaiʻi 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 Hawaiʻi at 58, 456 P.3d at 131. The State quotes

this court as concluding that the restraint in the first example

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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

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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

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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

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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 Hawaiʻi 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

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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

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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 Hawaiʻi

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 3. According to

the dissent, Ishimine was not without recourse because even if

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his appellate counsel did not raise the failure to give a

Sheffield instruction, Ishimine could file a Hawaiʻi Rules of

Penal Procedure Rule 40 post-conviction petition.7 Dissenting

Opinion at 6 n.3.

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 (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

7 The dissent asserts Ishimine could assert ineffective assistance of
counsel in such a petition. Dissenting Opinion at 6 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 6 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.

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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 (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 (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 (1962). See also, Greenlaw v. United States, 554

U.S. 237, 247 (2008) (“This Court has indeed noticed, and

ordered correction of, plain errors not raised by defendants,

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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 Hawaiʻi 19, 27, 313 P.3d

708, 716 (2013) (failure to issue specific unanimity

instruction); State v. DeLeon, 131 Hawaiʻi 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,

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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 Hawaiʻi 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 Hawaiʻi 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

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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.”8 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 2.

The dissent also asserts that we “silently dismiss[] our

precedent . . . for determining . . . whether the

8 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.”

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[instructional] defect was harmless beyond a reasonable doubt.”

Dissenting Opinion at 1-2. 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 Hawaiʻi 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 8. 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 1-2. 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 Hawaiʻi at 59, 456 P.3d at 132 (“The Trujillo

court noted that the majority rule among other jurisdictions is

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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 2.

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 Hawaiʻi 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.

Alen M. Kaneshiro /s/ Sabrina S. McKenna
for petitioner
/s/ Michael D. Wilson
Richard B. Rost
for respondent /s/ Todd W. Eddins

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