ICA Extends Sheffield Definition of "Restraint" to the Rest of Kidnapping Statute

 State v. Forbes (ICA November 20, 2020)

Background. Ephrim Richard Forbes was charged with kidnapping, robbery, and unauthorized control of a propelled vehicle. At trial, the complainant testified through a Japanese interpreter that he was a driver dispatched to a hotel at Kapolei. He saw Forbes, an African-American, sitting on the curb and when he got in, the complainant did not have a good feeling about him because he thought he was smelly. Forbes got in and asked the driver to go to the airport. According to the complainant, Forbes asked him to head to Haleiwa instead. The complainant refused. Forbes told the driver to head to Ko Olina, which was nearby. Then he started talking on his phone. After another ten to fifteen minutes, Forbes asked him to head to Campbell Industrial Park. Forbes continued to talk on his phone and removed the camera on the windshield. According to the complainant, Forbes showed what he believed to be a gun and ordered him to keep driving.

 

The complainant testified he opened the driver’s side door and tried to get out of the van with a cash bag twice, but Forbes grabbed his arm and kept him inside. He testified that he used the “gun” and hit the side of his neck and held it to him. It ended when the complainant dropped the bag. Forbes let him out of the van and the van drove off. Forbes called the police, who found the van and Forbes at Barbers Point. Pictures of the complainant showed a scratch and bruises on his arm and what appeared to the ICA to be bruises near his left ear.

 

Forbes testified. He said when he got in the van the driver was “fidgety” and made him uncomfortable. Forbes explained that he got a call on the way to the airport about work and asked to go to Haleiwa, but the driver refused. He got frightened and felt he needed to scare the driver by using a cigarette lighter to simulate a gun. He admitted to pulled him back into the van “so he could continue my drive. That’s when everything got out of hand.”

 

The parties stipulated to the kidnapping instruction and the circuit court—the Hon. Judge Karen Nakasone—approved it. It defined “restraint” as a “restrict[ion] to a person’s movement in such a manner as to interfere substantially with the person’s liberty by means of force, threat, or deception.” There was nothing in the instruction about the restriction being incidental to the intent to terrorize the complainant.

 

Forbes was found guilty of kidnaping and theft in the fourth degree as a lesser-included offense to robbery. The jury also found that the offenses were part of a continuing course of conduct and, therefore, the theft merged into the kidnapping offense. The jury also found that the complainant was not released voluntarily thereby making the kidnapping offense a Class A felony. Forbes was sentenced to twenty years imprisonment. He appealed.

 

Kidnapping, Sheffield, and Abusive Prosecutorial Practices. The ICA explained that kidnapping in Hawai'i arises when a person intentionally or knowingly “restrains” another person with the specific intent to do one of seven acts. HRS § 707-720(1)(a)-(g). In State v. Sheffield, 145 Hawai'i 49, 456 P.3d 122 (2020), the HSC examined the kind of “restraint” in a prosecution for HRS § 707-720(1)(d)—restraint of another with the intent to “[i]nflict bodily injury upon that person or subject that person to a sexual offense[.]” The Sheffield Court held that restraint must be in excess of anything “incidental to the infliction or intended infliction of bodily injury or subjection or intended subjection of a person to a sexual offense[.]” Id. at 59, 456 P.3d at 132.

 

The ICA explained that the HSC in Sheffield was concerned about “abusive” prosecutorial tactic of proceeding with kidnapping instead of an unprosecuted or uncompleted offense that may not be as serious. Kidnapping is a class A felony at worst or a Class B felony when the defendant voluntarily releases the complainant alive and not suffering from serious or substantial bodily injury in a safe place prior to trial. HRS § 707-720(2) & (3). In Sheffield, the prosecution did not charge the defendant with assault in the third degree—a misdemeanor. Instead it opted to go for kidnapping, a serious felony.

 

Extending Sheffield to the Rest of the Kidnapping Subsections. The ICA acknowledged that while Sheffield was limited to one of the seven specific subsections of HRS § 707-720(1), the term “restraint” applies to the entire statute. The ICA, therefore, extended Sheffield’s new definition of “restraint” to the rest of the statute. According to the ICA, kidnapping “requires a finding that the amount of ‘restraint’ employed by the defendant upon the complaining witness was in excess of the substantial interference with liberty that would be incidental to the infliction or intended infliction of any of the offenses described by the other subsections of 707-720(1).”

 

The ICA also noted that the prosecution declined to charge Forbes with terroristic threatening in the first degree—a class C felony—and went with kidnapping instead thereby enhancing his prison exposure by another fifteen years. The ICA held that the circuit court should have instructed the jury that kidnapping requires restraint in excess of the substantial interference with liberty and that it was more than merely “incidental” to the separate offense of terroristic threatening.

 

Nor is the Error Harmless. The ICA also held that the error was not harmless. Although there had been sufficient evidence that Forbes restrained the complainant with the intent to terrorize the complainant and although there was evidence to support a finding that the restraint was more than any restraint incidental to the offense of terroristic threatening, there was a reasonable possibility that a jury  could have concluded otherwise. State v. Bovee, 139 Hawai'i 530, 537-538, 394 P.3d 760, 767-768 (2017). Because it was not harmless, the ICA remanded the case for new trial.

 

Judge Hiraoka’s Concurrence and Dissent. Judge Hiraoka agreed with the majority—Hon. Judges Leonard and Wadsworth—that there was sufficient evidence to support the verdict, but he disagreed on harmless error. For Judge Hiraoka, no reasonable jury could have found Forbes’s restraint incidental to his terroristic threatening. Judge Hiraoka also did not expressly state that he agreed Sheffield should be extended. He wrote that even if Sheffield extends to other subsections, the failure to give the instruction was harmless beyond a reasonable doubt.