§707-720 Kidnapping. (1) A person commits the offense of kidnapping if the person intentionally or knowingly restrains another person with intent to:
(a) Hold that person for ransom or reward;
(b) Use that person as a shield or hostage;
(c) Facilitate the commission of a felony or flight thereafter;
(d) Inflict bodily injury upon that person or subject that person to a sexual offense;
(e) Terrorize that person or a third person;
(f) Interfere with the performance of any governmental or political function; or
(g) Unlawfully obtain the labor or services of that person, regardless of whether related to the collection of a debt.
(2) Except as provided in subsection (3), kidnapping is a class A felony.
(3) In a prosecution for kidnapping, it is a defense which reduces the offense to a class B felony that the defendant voluntarily released the victim, alive and not suffering from serious or substantial bodily injury, in a safe place prior to trial. [L 1972, c 9, pt of §1; am L 1986, c 314, §53; gen ch 1992; am L 2008, c 147, §2]
Case Notes
Evidence held sufficient to show defendant restrained victim to subject victim to sexual offense. 61 H. 475, 605 P.2d 75 (1980).
Trial judge erred in refusing to instruct jury regarding the possible merger of the robbery and kidnapping counts against defendant. 77 H. 17, 881 P.2d 504 (1994).
Prosecution adduced substantial evidence from which a person of reasonable caution could conclude that defendant intentionally or knowingly restrained officer and intended to inflict bodily injury upon officer in violation of subsection (1)(d) where officer testified that defendant had pinned officer's arm against car's steering wheel and dragged officer thirty yards down the street while officer was hanging outside the vehicle. 95 H. 465, 24 P.3d 661 (2001).
Where handgun constituted a significant piece of evidence pertaining to the state of mind requisite to the charged offense of kidnapping-with-the-intent-to-terrorize, trial court's admission of testimony regarding the handgun was not erroneous because the testimony's probative value outweighed any potential prejudice. 118 H. 493, 193 P.3d 409 (2008).
Where jurors could have found that defendant's culpable acts of either the morning or afternoon of April 10, 2004 established the conduct element of the kidnapping count, and trial court did not issue a specific unanimity instruction to the jury regarding defendant's kidnapping charge, appellate court erred in affirming trial court's kidnapping conviction under this section. 118 H. 493, 193 P.3d 409 (2008).
A specific unanimity (jury) instruction is not required where (1) the offense is not defined in such a manner as to preclude it from being proved as a continuous offense and (2) the prosecution alleges, adduces evidence of, and argues that the defendant's action constituted a continuous course of conduct; thus, a specific unanimity instruction was not required where prosecution alleged a continuous course of conduct with respect to defendant's kidnapping charge under this section, but was required for defendant's attempted first degree sexual assault charge under §707-730. 121 H. 339, 219 P.3d 1126 (2009).
There was overwhelming and compelling evidence tending to show defendant guilty beyond a reasonable doubt of kidnapping, where defendant restrained victim intentionally or knowingly, with intent to inflict bodily injury upon victim or subject victim to a sexual offense or terrorize victim, by, inter alia, striking victim in the face and back of the head several times specifically in response to victim's request to let victim go and victim's attempts to escape. 126 H. 267, 270 P.3d 997 (2011).
There was a rational basis for the jury to find defendant guilty of unlawful imprisonment in the first degree, had the jury been given the appropriate instruction. The failure to instruct the jury on a lesser included offense for which the evidence provided a rational basis warranted vacating defendant's conviction for kidnapping. 131 H. 43, 314 P.3d 120 (2013).
Under §701-109(4)(c), unlawful imprisonment in the first degree is a lesser-included offense of kidnapping because unlawful imprisonment in the first degree involves a less culpable mental state than kidnapping. 131 H. 43, 314 P.3d 120 (2013).
The purpose of allowing a mitigating defense would be undermined by only requiring the State to demonstrate that the victim was suffering from a substantial bodily injury at the time of the victim's release; instead, evidence must have been adduced that demonstrates that the substantial bodily injury was caused during the course of the kidnapping by defendant or by the co-defendant as defendant's accomplice, or both. 131 H. 365, 319 P.3d 284 (2013).
The State was only required to disprove one of the elements of the class B mitigating defense beyond a reasonable doubt to establish that the defendant "failed to fulfill" one element and therefore was not entitled to the defense. Defendant was not entitled to the class B mitigating defense where the jury's responses to the special interrogatories established that the State proved beyond a reasonable doubt facts negativing the first and third elements of the defense. 131 H. 365, 319 P.3d 284 (2013).
No evidence that defendant voluntarily released the victim in a safe place. 6 H. App. 77, 711 P.2d 1303 (1985).
Trial court's jury instruction that "terrorize means the risk of causing another person serious alarm for his or her personal safety" had no basis in Hawaii's criminal statutes, derogated the culpable state of mind required for conviction under subsection (1)(e), and was not harmless error. 98 H. 208 (App.), 46 P.3d 1092 (2002).
A defense under subsection (3) imposed upon the State the burden of proving beyond a reasonable doubt that defendant (a) did not release the victim alive, (b) prior to trial, (c) voluntarily, (d) the victim was not suffering from serious or substantial bodily injury, or (e) did not release the victim in a safe place; if and when the State satisfied its burden of disproving one or more of these five elements, it disproved the defense; failure of the jury instructions to connect "release" and "prior to trial" was harmless beyond a reasonable doubt. 102 H. 346 (App.), 76 P.3d 589 (2003).
Circuit court did not err in convicting defendant of a class A felony under this section where the jury found that when defendant released victim, victim was suffering from serious or substantial bodily harm; a doctor testified that victim's concussion coupled with victim's loss of consciousness of unknown duration created a substantial risk of death. 123 H. 456 (App.), 235 P.3d 1168 (2010).
Other evidence and victim's testimony that defendant drove victim's van from urban Honolulu to Kaneohe provided sufficient evidence to convict defendant of kidnapping under this section. 123 H. 456 (App.), 235 P.3d 1168 (2010).
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