State v. Kekaualua

NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
30-SEP-2024
10:34 AM
Dkt. 103 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI‘I

STATE OF HAWAI‘I, Plaintiff-Appellee,
v.
PUNOHU N. KEKAUALUA, Defendant-Appellant

APPEAL FROM THE DISTRICT COURT OF THE FIFTH CIRCUIT
LĪHU‘E DIVISION
(CASE NO. 5DCW-XX-XXXXXXX)

SUMMARY DISPOSITION ORDER
(By: Wadsworth, Presiding Judge, Nakasone and Guidry, JJ.)

Defendant-Appellant Punohu N. Kekaualua (Kekaualua)

appeals from the Judgment and Notice of Entry of Judgment

(Judgment) entered by the District Court of the Fifth Circuit

(district court) on August 12, 2021.1

1 The Honorable Sara Silverman presided.
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On August 19, 2020, the State of Hawaiʻi (State)

charged Kekaualua with one count of Criminal Trespass in the

Second Degree, in violation of Hawaii Revised Statutes (HRS)

§ 708-814(1)(a). The complaint read:

On or about the 2nd day of July, 2020, in the County
of Kauaʻi, State of Hawaiʻi, PUNOHU NELIMU KEKAUALUA did
knowingly enter or remain unlawfully in or upon premises
that were enclosed in a manner designed to exclude
intruders or were fenced, thereby committing the offense of
Criminal Trespass in the Second Degree, in violation of
Hawaiʻi Revised Statutes Section 708-814(1)(a).

"Premises" means any building and any real property.

This matter proceeded to a bench trial on August 12,

2021, at which Kekaualua appeared self-represented.2 The

district court found Kekaualua guilty of criminal trespass in

the second degree, sentencing him to a $100 fine, $30 crime

victim fee and one day in jail, with credit for time served.

This appeal followed.

On appeal, Kekaualua raises five points of error,

contending that: (1) the district court erred in denying his

motion to dismiss for lack of jurisdiction; (2) the district

court erred in denying his request for pretrial discovery; (3)

the district court erred by failing to find that his violation

was a de minimis violation; (4) the district court lacked

subject matter jurisdiction "given that the charging document

failed . . . to adequately notify [Kekaualua] of the charges

2 Kekaualua is represented by attorney Kai Lawrence on appeal.

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against him"; and (5) there was insufficient evidence to support

the district court's guilty verdict. Upon careful review of the

record and relevant legal authorities, we resolve Kekaualua's

points of error as follows.

(1) Kekaualua contends that the district court erred

in denying his motion to dismiss the charging document because

the charging document was "based upon a lack of jurisdiction

given the illegal overthrow of the Hawaiian nation by the United

States[.]" Kekaualua's contention lacks merit.

In State v. Kaulia, 128 Hawaiʻi 479, 291 P.3d 377

(2013), the Hawaiʻi Supreme Court rejected the argument that

Kekaualua makes here. The Kaulia court held that, pursuant to

HRS § 701-106 (1993),3 "the State's criminal jurisdiction

encompasses all areas within the territorial boundaries of the

State of Hawaiʻi." Id. at 487, 291 P.3d at 385 (cleaned up).

Therefore, "[i]ndividuals claiming to be citizens of the Kingdom

[of Hawaiʻi] and not of the State are not exempt from application

of the State's laws." Id. We conclude, pursuant to Kaulia,

that the district court had jurisdiction over the State's

complaint against Kekaualua.

(2) Kekaualua contends that the district court erred

in denying his oral request for pretrial discovery. He contends

3 Currently codified in HRS § 706-106 (2014).

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that, at a May 2021 pre-trial hearing, he "sought disclosure by

the prosecution of any treaty showing the United State's [sic]

lawful presence in Hawaii," and "of any documents showing

ownership of the parcel of land in question." The district

court declined to order the prosecution to produce the requested

documents, instructing Kekaualua that "if you want to file

motions to compel the State to do something, you can[.]"

"The scope of discovery is reviewed for an abuse of

discretion." State v. Estrada, 69 Haw. 204, 216, 738 P.2d 812,

821 (1987). Hawaiʻi Rules of Penal Procedure (HRPP) Rule 16

governs discovery.

Disclosure in criminal cases is governed by HRPP Rule 16,
which limits discovery "to cases in which the defendant is
charged with a felony," HRPP Rule 16(a), except as provided
in HRPP Rule 16(d). . . . HRPP Rule 16(d) provides that,
upon a showing of materiality and if the request is
reasonable, the court in its discretion may require
disclosure as provided for in this Rule 16 in cases other
than those in which the defendant is charged with a felony,
but not in cases involving violations.

Thus, discovery in a misdemeanor case may be permitted by
the trial judge upon a showing of materiality and if the
request is reasonable, but only to the extent authorized by
HRPP Rule 16 for felony cases.

State v. Lo, 116 Hawaiʻi 23, 26, 169 P.3d 975, 978 (2007)

(cleaned up). HRPP Rule 16(b)(2) governs the disclosure of

matters not within the prosecution's possession, as was the case

here. The rule states,

Upon written request of defense counsel and specific
designation by defense counsel of material or information
which would be discoverable if in the possession or control
of the prosecutor and which is in the possession or control
of other governmental personnel, the prosecutor shall use

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diligent good faith efforts to cause such material or
information to be made available to defense counsel; and if
the prosecutor's efforts are unsuccessful the court shall
issue suitable subpoenas or orders to cause such material
or information to be made available to defense counsel.

(Emphasis added).

The record reflects that Kekaualua did not make a

written request of the State to provide any of the documents

that he was seeking. We conclude, given Kekaualua's

noncompliance with HRPP Rule 16, that the district court did not

abuse its discretion by not ordering the State to produce the

discovery that Kekaualua sought.

(3) Kekaualua contends that the charging document is

insufficient because it did not include the statutory definition

of "enter or remain unlawfully,"4 and therefore failed to

adequately provide notice of the charge as required by State v.

Wheeler, 121 Hawaiʻi 383, 219 P.3d 1170 (2009), and State v.

Nesmith, 127 Hawaiʻi 48, 276 P.3d 617 (2012).

"Whether a charge sets forth all the essential

elements of a charged offense is a question of law, which we

review under the de novo, or right/wrong standard." Wheeler,

121 Hawaiʻi at 390, 219 P.3d at 1177 (cleaned up). Where, as

here, Kekaualua challenges the sufficiency of the charging

4 HRS § 708-800 (2014) defines "enter or remain unlawfully" as
follows, and in pertinent part,

"Enter or remain unlawfully" means to enter or remain in or
upon premises when the person is not licensed, invited, or
otherwise privileged to do so.

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document for the first time on appeal, we adhere to the

Motta/Wells rule to apply a more liberal standard of review.

Pursuant to the Motta/Wells rule,

[C]harges challenged for the first time on appeal are presumed
valid. Accordingly, we will only vacate a defendant's conviction
under this standard if the defendant can show: (1) that the
charge cannot reasonably be construed to allege a crime; or (2)
that the defendant was prejudiced.

State v. Kauhane, 145 Hawaiʻi 362, 367, 452 P.3d 359, 370 (2019)

(cleaned up).

Here, unlike in Wheeler and Nesmith, the ordinary and

commonly understood definition of "enter or remain unlawfully"

reflects and comports with its statutory definition. "Where a

statute sets forth with reasonable clarity all essential

elements of the crime intended to be punished, and fully defines

the offense in unmistakable terms readily comprehensible to

persons of common understanding, a charge drawn in the language

of the statute will be sufficient." Id. at 367, 452 P.3d at 370

(cleaned up).

We conclude that Kekaualua has not shown that the

charge against him cannot reasonably be construed to allege a

crime, or that he was prejudiced.

(4) Kekaualua contends that the district court erred

by not construing his several oral motions "seeking dismissal of

the complaint, or acquittal, following presentation of

evidence[,]" as "motions to dismiss the charge as de minimus

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[sic][.]" "The dismissal of a prosecution for a de minimis

infraction is not a defense. The authority to dismiss a

prosecution as de minimis rests in the sound discretion of the

trial court." State v. Rapozo, 123 Hawaiʻi 329, 336, 235 P.3d

325, 332 (2010) (cleaned up).

In Rapozo, the Hawaiʻi Supreme Court explained

that,

HRS § 702-236[5] provides that "the court may dismiss a
prosecution if, having regard to the nature of the conduct
alleged and the nature of the attendant circumstances, it
finds that the defendant's conduct" constituted a de
minimis infraction. Thus, we require that all of the
relevant attendant circumstances be considered by the trial
court.

. . . .

The defendant has the burden of bringing the relevant
attendant circumstances before the court for its
consideration.

. . . .

5 HRS § 702-236 (2014) states, in its entirety,

§702-236 De minimis infractions. (1) The court may
dismiss a prosecution if, having regard to the nature of
the conduct alleged and the nature of the attendant
circumstances, it finds that the defendant's conduct:
(a) Was within a customary license or tolerance,
which was not expressly refused by the person
whose interest was infringed and which is not
inconsistent with the purpose of the law
defining the offense;
(b) Did not actually cause or threaten the harm or
evil sought to be prevented by the law defining
the offense or did so only to an extent too
trivial to warrant the condemnation of
conviction; or
(c) Presents such other extenuations that it cannot
reasonably be regarded as envisaged by the
legislature in forbidding the offense.
(2) The court shall not dismiss a prosecution under
subsection (1)(c) of this section without filing a written
statement of its reasons.

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In addition to requiring consideration of all the relevant
attendant circumstances, HRS § 702-236 further requires
consideration of "the harm or evil sought to be prevented
by the law defining the offense." As with all efforts to
determine legislative intent, that inquiry relies primarily
on the plain language of the statute.

Rapozo, at 337-38, 235 P.3d at 333-34 (cleaned up).

Criminal trespass in the second degree is intended to

prevent people from unlawfully entering upon premises.

Kekaualua failed to carry his burden of establishing that his

conduct was a de minimis infraction of HRS § 708-814(1)(a)

within the meaning of HRS § 702-236. Realtor Julie Black

(Black) testified at trial that Kekaualua's truck was blocking

the driveway; when she asked him to move the truck, he refused,

causing her to call the police and have his truck towed. Black

further testified that approximately three times, Kekaualua,

"[taunted] the police officer to arrest him, like putting his

foot over [the premises] and then bringing it back, putting it

over and bringing it back." When asked "were there any previous

incidents where Mr. Kekaualua was advised that he was not

allowed on the property[,]" Black responded, "[m]any."

We conclude that the district court did not abuse its

discretion by not dismissing the case as de minimis.

(5) Kekaualua contends that there was insufficient

evidence introduced to support the district court's guilty

verdict. He contends that there "was no evidence presented

showing the requisite mens rea necessary to sustain the
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conviction" because of his alleged mistake of fact,6 i.e., that

"he legitimately believed that he and his family, as konohiki

receiving the land in question during the [] Great Mahele, were

the rightful title holders to said land." He further contends

that the "fence line in question was a necessary element of the

charge that was never proven[,]" specifically that there was not

"any evidence presented showing a survey or plot map marking out

the boundaries" of the premises.

"The test on appeal is not whether guilt is

established beyond a reasonable doubt, but whether there was

substantial evidence to support the conclusion of the trier of

fact." State v. Richie, 88 Hawaiʻi 19, 33, 960 P.2d 1227, 1241

(1998) (citations omitted). "Substantial evidence as to every

material element of the offense charged is credible evidence

which is of sufficient quality and probative value to enable a

6 The defense of mistake of fact is codified in HRS § 702-218
(2014), which states,

§702-218 Ignorance or mistake as a defense. In any
prosecution for an offense, it is a defense that the
accused engaged in the prohibited conduct under ignorance
or mistake of fact if:
(1) The ignorance or mistake negatives the state of
mind required to establish an element of the
offense; or
(2) The law defining the offense or a law related
thereto provides that the state of mind
established by such ignorance or mistake
constitutes a defense.

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person of reasonable caution to support a conclusion." State v.

Foster, 128 Hawaiʻi 18, 25, 282 P.3d 560, 567 (2012).

In order to sustain a conviction of criminal trespass

in the second degree, the prosecution was required to prove that

Kekaualua: (1) did knowingly enter or remain unlawfully; (2) in

or upon premises that were enclosed in a manner designed to

exclude intruders or were fenced.

Black testified at trial that she observed Kekaualua

cross over into the fenced area of the property, and when asked

if she observed him on the property on the day in question, she

specified that she "observed his foot on the property, yes."

During his own testimony, Kekaualua testified that he

was physically on the property, admitting, "[y]es, I did go back

on the property[.]" The following testimony was also presented

on cross-examination:

Q [State]. Isn't it true that you did enter the
property after --

A [Kekaualua]. Absolutely.

Q. And you were told that you could not be there?

A. Absolutely.

. . . .

Q. But you were told that you could not be on the
property and you remained?

A. Yes.

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We conclude that there is sufficient evidence in

the record to support Kekaualua's conviction of criminal

trespass in the second degree.

For the foregoing reasons, we affirm the district

court's Judgment.

DATED: Honolulu, Hawaiʻi, September 30, 2024.

On the briefs:
/s/ Clyde J. Wadsworth
Kai Lawrence, Presiding Judge
for Defendant-Appellant.
/s/ Karen T. Nakasone
Tracy Murakami, Associate Judge
Deputy Prosecuting Attorney,
County of Kaua‘i, /s/ Kimberly T. Guidry
for Plaintiff-Appellee. Associate Judge

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