State v. Kaakimaka

NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
13-OCT-2025
07:54 AM
Dkt. 80 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI‘I

STATE OF HAWAI‘I, Plaintiff-Appellee,
v.
KOA KAAKIMAKA, Defendant-Appellant

APPEAL FROM THE CIRCUIT COURT OF THE THIRD CIRCUIT
(CASE NO. 3CPC-XX-XXXXXXX)

SUMMARY DISPOSITION ORDER
(By: Guidry and Wadsworth, JJ., with Hiraoka,
Presiding Judge, concurring in part and dissenting in part)

Defendant-Appellant Koa Kaakimaka (Kaakimaka) appealed

from the "Judgment of Conviction and Probation Sentence"

(Judgment) entered by the Circuit Court of the Third Circuit

(circuit court) on October 17, 2022.1

1 The Honorable Robert D.S. Kim presided.
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On March 8, 2021, the State of Hawaiʻi (State) charged

Kaakimaka by Indictment with one count of Violation of Privacy

in the First Degree pursuant to Hawaii Revised Statutes (HRS)

§ 711-1110.9(1)(a) (2014).2 Kaakimaka pleaded not guilty, and

the matter proceeded to a jury trial. The jury returned a

guilty verdict. In October 2022, the circuit court sentenced

Kaakimaka to a term of four years of probation. This appeal

followed.

Kaakimaka raised six points of error on appeal,

contending that: (1) the circuit court erred in denying

Kaakimaka's "Motion to Dismiss Charge Due to Deficient,

Insufficient, and Defective Charging Language" (Motion to

Dismiss); (2)-(4) the circuit court erred in failing to instruct

the jury as to Kaakimaka's requested definitions for

"[i]nstalled or used a device in a private place" and "[p]rivate

place," and on the lesser included charge of Violation of

Privacy in the Second Degree pursuant to HRS § 711-1111(1)(b)

2 HRS § 711-1110.9 provides, in relevant part,

(1) A person commits the offense of violation of privacy
in the first degree if, except in the execution of a
public duty or as authorized by law:

(a) The person intentionally or knowingly installs or
uses, or both, in any private place, without
consent of the person or persons entitled to
privacy therein, any device for observing,
recording, amplifying, or broadcasting another
person in a stage of undress or sexual activity
in that place[.]

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(2014); (5) Kaakimaka's conviction is not supported by

sufficient evidence that Kaakimaka installed or used a device in

a private place; and (6) the circuit court erred in denying

"[Kaakimaka's] Motion to Suppress Evidence for Illegal

Search/Seizure and Warrantless Arrest" (Motion to Suppress).

On January 31, 2025, this court entered a summary

disposition order, in which we addressed points of error (1),

challenging the sufficiency of the charging document, and (5),

challenging the sufficiency of the State's evidence. We

concluded, by a plurality, that there was sufficient evidence in

the record to support Kaakimaka's conviction, but that the

charging document was insufficient.3 Consistent with our

conclusion, we vacated the circuit court's Judgment, instructed

the circuit court to dismiss the Indictment without prejudice,

and declined to consider the remaining points of error on

appeal. Judgment on appeal was entered on April 3, 2025, and

the Hawaiʻi Supreme Court accepted the State's Application for

Writ of Certiorari. In a published opinion filed on August 28,

2025, the Hawaiʻi Supreme Court vacated our judgment on appeal,

3 State v. Kaakimaka, No. CAAP-XX-XXXXXXX, 2025 WL 355165 (Haw.
App. Jan. 31, 2025) (SDO) (Hiraoka, J., concurring in part and dissenting in
part, and Guidry, J., concurring in part and dissenting in part) (plurality
decision).

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and remanded this case for our consideration of the remaining

points of error raised by Kaakimaka.4

Upon careful review of the record, briefs, and

relevant legal authorities, and having given due consideration

to the arguments advanced and the issues raised by the parties,

we conclude that Kaakimaka's remaining points of error lack

merit. We therefore affirm the circuit court's Judgment, as

follows:

(1) Kaakimaka contends that the circuit court erred by

not instructing the jury that "[i]nstalled or used a device in a

private place" was the "physical intrusion within the boundary

of a private place by the whole physical device or with any part

of the physical device." The circuit court declined to give

Kaakimaka's requested definition on the basis that the requested

definition was not "in the legislative history or any legal

authority."

"When jury instructions or the omission thereof are at

issue on appeal, the standard of review is whether, when read

4 Our prior summary disposition order concluded, as to point of
error (1), that the charging document was insufficient, and, as to point of
error (5), that there was sufficient evidence to support Kaakimaka's
conviction. The State filed an application for writ of certiorari, seeking
review as to our plurality ruling on point of error (1). Kaakimaka did not
seek review as to our plurality ruling on point of error (5). Hence, the
Hawaiʻi Supreme Court, in accepting the State's application for certiorari,
addressed only our ruling on point of error (1). Our plurality ruling on
point of error (5) therefore stands, and we address only Kaakimaka's
remaining points of error (2), (3), (4), and (6) in this summary disposition
order. We have renumbered these points of error as (1), (2), (3), and (4)
herein.

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and considered as a whole, the instructions given are

prejudicially insufficient, erroneous, inconsistent, or

misleading." State v. Kinnane, 79 Hawaiʻi 46, 49, 897 P.2d 973,

976 (1995) (cleaned up).

We conclude that the circuit court did not err in

rejecting Kaakimaka's requested definition of "[i]nstalled or

used a device in a private place" -- a definition that was not

supported by legal authority -- and that the omission of this

requested instruction did not render the jury's instructions

"prejudicially insufficient, erroneous, inconsistent, or

misleading."

(2) Kaakimaka contends that the circuit court erred in

failing to instruct the jury as to the following definition of

"[p]rivate place":

"Private place" means a place where one may
reasonably expect to be safe from casual or hostile
intrusion or surveillance, but does not include a place to
which the public or a substantial group thereof has access.
A private place is withdrawn from observation from the
public and cannot be visibly observed wholly or partly from
outside of the place by any member of the public. A
private place[] is bound by the walls, foliage, or other
obstruction from any member of the public. A private place
cannot have a clear window outside of which member(s) of
the public are invited as that opens the place to
surveillance.

The circuit court declined to give the above

definition, and instead instructed the jury on the statutory

definition of "[p]rivate place" -- i.e., "a place where one may

reasonably expect to be safe from casual or hostile intrusion or

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surveillance, but does not include a place to which the public

or a substantial group thereof has access." HRS § 711-1100

(2014).

The record does not support that the "[p]rivate place"

jury instruction given by the circuit court, which tracked the

statutory definition of "[p]rivate place" in HRS § 711-1100, was

"prejudicially insufficient, erroneous, inconsistent, or

misleading."

(3) Kaakimaka contends that the circuit court erred in

failing to instruct the jury as to the lesser included offense

of Violation of Privacy in the Second Degree, pursuant to HRS

§ 711-1111(1)(b). "Jury instructions on lesser-included

offenses must be given when there is a rational basis in the

evidence for a verdict acquitting the defendant of the offense

charged and convicting the defendant of the included offense."

State v. Martin, 146 Hawaiʻi 365, 387, 463 P.3d 1022, 1044 (2020)

(cleaned up).

HRS § 701-109(4) (2014) provides that,

An offense is so included when:

(a) It is established by proof of the same or less than
all the facts required to establish the commission of
the offense charged;

(b) It consists of an attempt to commit the offense
charged or to commit an offense otherwise included
therein; or

(c) It differs from the offense charged only in the
respect that a less serious injury or risk of injury
to the same person, property, or public interest or a

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different state of mind indicating lesser degree of
culpability suffices to establish its commission.

(Emphasis added.); Martin, 146 Hawaiʻi at 387, 463 P.3d at 1044.

"An offense is a lesser included offense of another if it

satisfies the requirements set forth in HRS § 701-109(4) which

codifies the common law doctrine of lesser included offenses."

State v. Kaeo, 132 Hawaiʻi 451, 461, 323 P.3d 95, 105 (2014)

(cleaned up).

HRS § 711-1111(1)(b) states,

A person commits the offense of violation of privacy in the
second degree if, except in the execution of a public duty
or as authorized by law, the person intentionally:

. . . .

(b) Peers or peeps into a window or other opening of a
dwelling or other structure adapted for sojourn or
overnight accommodations for the purpose of spying
on the occupant thereof or invading the privacy of
another person with a lewd or unlawful purpose,
under circumstances in which a reasonable person in
the dwelling or other structure would not expect to
be observed[.]

(Emphasis added.)

The evidence adduced at trial does not support that

Kaakimaka physically "[p]eer[ed] or peep[ed]" -- i.e., with his

eyes -- into the window of the complaining witness' (CW)

family's vacation rental home. The CW testified that she saw a

hand holding a phone, and "a little bit of a top of a head,"

outside the bathroom window. Since the evidence does not

support an element of HRS § 711-1111(1)(b), the circuit court

did not err by not instructing the jury as to that offense.

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(4) Kaakimaka contends that the circuit court erred in

denying his Motion to Suppress. "An appellate court reviews a

ruling on a motion to suppress de novo to determine whether the

ruling was right or wrong." State v. Hewitt, 153 Hawaiʻi 33, 40,

526 P.3d 558, 565 (2023) (cleaned up).

In his Motion to Suppress, Kaakimaka argued that the

evidence obtained from his phone should be suppressed because he

did not voluntarily show his phone to the arresting officer,

Officer Landon Takenishi (Officer Takenishi), and the consent

exception to the warrant requirement therefore did not apply.5

Kaakimaka testified that Officer Takenishi reached into

Kaakimaka's pocket to take the phone without permission.

Officer Takenishi testified that, while being

questioned outside the vacation rental home, Kaakimaka himself

"brought [the phone] out" and "present[ed] it to" Officer

Takenishi. Officer Takenishi further testified that, while

subsequently advising Kaakimaka of his rights at the police

station, he asked Kaakimaka "if [Kaakimaka] would give [Officer

Takenishi] permission to . . . go through [Kaakimaka's] phone,"

to which Kaakimaka gave his verbal and written consent.

5 The parties agree that Kaakimaka's phone was obtained without a
search warrant, and that it was the State's burden to prove at the
suppression hearing that there was an exception to the warrant requirement.
"A search conducted pursuant to voluntary and uncoerced consent by the person
being searched is one of the exceptions to the warrant requirement." State
v. Mahone, 67 Haw. 644, 646, 701 P.2d 171, 173 (1985) (citation omitted).

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Presented with this conflicting evidence, the circuit

court found the testimony of Officer Takenishi to be "more

credible than [Kaakimaka's testimony] considering both

witness[es'] candor, frankness, the witnesses' respective

interests in the case, the probability of the testimony, and

inconsistencies in the testimony of [Kaakimaka]."

The circuit court, as the finder of fact on the Motion

to Suppress, weighed the conflicting evidence presented and

assessed the witnesses' credibility, and concluded that,

3. In this case, Officer Takenishi had reasonable
suspicion to approach [Kaakimaka] and ask to see
[Kaakimaka's] phone to confirm or dispel his reasonable
suspicion that a crime had occurred.

4. [Kaakimaka] voluntarily showed Officer Takenishi
his phone which matched the description of the phone that
was reported. This did not constitute a search as
[Kaakimaka] voluntarily showed Officer Takenishi his phone
when he was not in custody, and was not subject to
interrogation, there is no credible evidence to suggest
[Kaakimaka] was coerced into showing Officer Takenishi his
phone.

. . . .

8. In the instant case, [Kaakimaka] was arrested
after Officer Takenishi observed that [Kaakimaka's] phone
matched the description that the reporting party had
provided. [Kaakimaka] possessed a white-face with silver-
back. At the time [Kaakimaka] was arrested, Officer
Takenishi had both a subjective and objectively reasonable
belief that [Kaakimaka] had committed a crime.

. . . .

10. In the instant case, Officer Takenishi seized
the phone from [Kaakimaka] while [Kaakimaka] was being
lawfully arrested. [Kaakimaka] had already voluntarily
taken out his phone to show Officer Takenishi. The phone
was not in a constitutionally protected area, and therefore
the phone was lawfully seized.

. . . .

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14. In this case [Kaakimaka] gave consent to have
the police search his phone while he was in custody.
[Kaakimaka] was given his Miranda rights prior to giving
consent to search the phone, and the arresting officer
reviewed the Hawaii Police Department Advice of Search and
Seizure Rights and Consent to Search form with [Kaakimaka]
which informed [Kaakimaka] that he had a constitutional
right not to have a search of his property without a search
warrant. Following these advisements [Kaakimaka] freely
and voluntarily gave consent to search his phone without
the presence of coercion.

On this record, we determine that the circuit court's

findings of fact were not clearly erroneous, and that the

circuit court was not wrong in denying Kaakimaka's Motion to

Suppress.

For the foregoing reasons, we affirm the Judgment.

DATED: Honolulu, Hawaiʻi, October 13, 2025.

On the briefs: /s/ Clyde J. Wadsworth
Associate Judge
R. Hermann Heimgartner,
for Defendant-Appellant. /s/ Kimberly T. Guidry
Associate Judge
Stephen L. Frye,
Deputy Prosecuting Attorney,
County of Hawaiʻi,
for Plaintiff-Appellee.

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CONCURRING AND DISSENTING OPINION BY HIRAOKA, J.

I concur that the circuit court did not err by denying

Kaakimaka's requested jury instructions defining "private place"

and "installed or used a device in a private place"; not

instructing the jury on Violation of Privacy in the Second

Degree; and denying Kaakimaka's motion to suppress evidence

obtained from his phone.

I respectfully dissent because I don't think we can

stop there. After holding that the charge against Kaakimaka was

sufficient, the supreme court remanded for us "to address the

remaining points of error on appeal." State v. Kaakimaka, 156

Hawai#i 302, 313, 574 P.3d 767, 778 (2025). Kaakimaka's

contention that "the State failed to present sufficient evidence

to prove beyond a reasonable doubt that Kaakimaka installed or

used a device in a private place" was included in the mandate.

Id. at 305 n.1, 574 P.3d at 770 n.1.

The supreme court mistakenly stated that we "did not

address these additional points of error and they are therefore

not raised on certiorari." Id. We addressed the sufficiency of

evidence because we needed to decide whether to vacate the

conviction with or without prejudice. The plurality held the

evidence was sufficient to support the conviction. State v.

Kaakimaka, No. CAAP-XX-XXXXXXX, 2025 WL 355165, *4 (Haw. App.

Jan. 31, 2025) (SDO), vacated and remanded by, State v.

Kaakimaka, 156 Hawai#i 302, 574 P.3d 767 (2025). I dissented.

Id. Nevertheless, we must strictly comply with the supreme

court's mandate "as determined by the directions given[.]"
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Schmidt v. Dubin, 155 Hawai#i 16, 21, 556 P.3d 362, 367 (2024).

In my view, nothing in the supreme court's opinion indicates

otherwise.

My opinion remains that the evidence did not support

Kaakimaka's conviction because of the way HRS § 711-1110.9 (2014)

is worded:
(1) A person commits the offense of violation of privacy
in the first degree if, except in the execution of a public
duty or as authorized by law:

(a) The person intentionally or knowingly installs
or uses, or both, in any private place, without
consent of the person or persons entitled to
privacy therein, any device for observing,
recording, amplifying, or broadcasting another
person in a stage of undress or sexual activity
in that place[.]

(Emphasis added.)

The words "in any private place" and "in that place"

refer to a single location the defendant or recording device and

the complaining witness must both be "in" as an attendant

circumstance of the crime.

The supreme court summarized the evidence against

Kaakimaka:
Evidence at trial indicated Kaakimaka videorecorded a
young girl taking a shower by placing a phone camera in a
high-up bathroom window that one cannot see through while
standing on the ground. The recording of Kaakimaka
admitting to "videotaping" through the bathroom window was
also received in evidence. In closing argument, Kaakimaka's
counsel conceded that there was no dispute that Kaakimaka
used the phone to record at the bathroom window, but argued
that the statutory requirement of "in a private place" was
not met because Kaakimaka "never went in the bathroom."

Kaakimaka, 156 Hawai#i at 307, 574 P.3d at 772 (emphasis added).

Kaakimaka and his phone were outside the bathroom. His

conduct absolutely violated the laws of decency and common

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courtesy, but it did not violate HRS § 711-1110.9(1)(a) because

neither Kaakimaka nor his phone were in the private place — the

bathroom — where the young girl was showering. The legislature

may wish to amend the statute to include the conduct in which

Kaakimaka engaged — installing or using a device (anywhere — for

example, in a ventilation shaft) to record an undressed person in

a private place, without the person's consent. As currently

worded, it does not. I would reverse the Judgment of Conviction

and Sentence on that basis.

/s/ Keith K. Hiraoka
Presiding Judge

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Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
13-OCT-2025
07:54 AM
Dkt. 80 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI‘I

STATE OF HAWAI‘I, Plaintiff-Appellee,
v.
KOA KAAKIMAKA, Defendant-Appellant

APPEAL FROM THE CIRCUIT COURT OF THE THIRD CIRCUIT
(CASE NO. 3CPC-XX-XXXXXXX)

SUMMARY DISPOSITION ORDER
(By: Guidry and Wadsworth, JJ., with Hiraoka,
Presiding Judge, concurring in part and dissenting in part)

Defendant-Appellant Koa Kaakimaka (Kaakimaka) appealed

from the "Judgment of Conviction and Probation Sentence"

(Judgment) entered by the Circuit Court of the Third Circuit

(circuit court) on October 17, 2022.1

1 The Honorable Robert D.S. Kim presided.
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On March 8, 2021, the State of Hawaiʻi (State) charged

Kaakimaka by Indictment with one count of Violation of Privacy

in the First Degree pursuant to Hawaii Revised Statutes (HRS)

§ 711-1110.9(1)(a) (2014).2 Kaakimaka pleaded not guilty, and

the matter proceeded to a jury trial. The jury returned a

guilty verdict. In October 2022, the circuit court sentenced

Kaakimaka to a term of four years of probation. This appeal

followed.

Kaakimaka raised six points of error on appeal,

contending that: (1) the circuit court erred in denying

Kaakimaka's "Motion to Dismiss Charge Due to Deficient,

Insufficient, and Defective Charging Language" (Motion to

Dismiss); (2)-(4) the circuit court erred in failing to instruct

the jury as to Kaakimaka's requested definitions for

"[i]nstalled or used a device in a private place" and "[p]rivate

place," and on the lesser included charge of Violation of

Privacy in the Second Degree pursuant to HRS § 711-1111(1)(b)

2 HRS § 711-1110.9 provides, in relevant part,

(1) A person commits the offense of violation of privacy
in the first degree if, except in the execution of a
public duty or as authorized by law:

(a) The person intentionally or knowingly installs or
uses, or both, in any private place, without
consent of the person or persons entitled to
privacy therein, any device for observing,
recording, amplifying, or broadcasting another
person in a stage of undress or sexual activity
in that place[.]

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(2014); (5) Kaakimaka's conviction is not supported by

sufficient evidence that Kaakimaka installed or used a device in

a private place; and (6) the circuit court erred in denying

"[Kaakimaka's] Motion to Suppress Evidence for Illegal

Search/Seizure and Warrantless Arrest" (Motion to Suppress).

On January 31, 2025, this court entered a summary

disposition order, in which we addressed points of error (1),

challenging the sufficiency of the charging document, and (5),

challenging the sufficiency of the State's evidence. We

concluded, by a plurality, that there was sufficient evidence in

the record to support Kaakimaka's conviction, but that the

charging document was insufficient.3 Consistent with our

conclusion, we vacated the circuit court's Judgment, instructed

the circuit court to dismiss the Indictment without prejudice,

and declined to consider the remaining points of error on

appeal. Judgment on appeal was entered on April 3, 2025, and

the Hawaiʻi Supreme Court accepted the State's Application for

Writ of Certiorari. In a published opinion filed on August 28,

2025, the Hawaiʻi Supreme Court vacated our judgment on appeal,

3 State v. Kaakimaka, No. CAAP-XX-XXXXXXX, 2025 WL 355165 (Haw.
App. Jan. 31, 2025) (SDO) (Hiraoka, J., concurring in part and dissenting in
part, and Guidry, J., concurring in part and dissenting in part) (plurality
decision).

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and remanded this case for our consideration of the remaining

points of error raised by Kaakimaka.4

Upon careful review of the record, briefs, and

relevant legal authorities, and having given due consideration

to the arguments advanced and the issues raised by the parties,

we conclude that Kaakimaka's remaining points of error lack

merit. We therefore affirm the circuit court's Judgment, as

follows:

(1) Kaakimaka contends that the circuit court erred by

not instructing the jury that "[i]nstalled or used a device in a

private place" was the "physical intrusion within the boundary

of a private place by the whole physical device or with any part

of the physical device." The circuit court declined to give

Kaakimaka's requested definition on the basis that the requested

definition was not "in the legislative history or any legal

authority."

"When jury instructions or the omission thereof are at

issue on appeal, the standard of review is whether, when read

4 Our prior summary disposition order concluded, as to point of
error (1), that the charging document was insufficient, and, as to point of
error (5), that there was sufficient evidence to support Kaakimaka's
conviction. The State filed an application for writ of certiorari, seeking
review as to our plurality ruling on point of error (1). Kaakimaka did not
seek review as to our plurality ruling on point of error (5). Hence, the
Hawaiʻi Supreme Court, in accepting the State's application for certiorari,
addressed only our ruling on point of error (1). Our plurality ruling on
point of error (5) therefore stands, and we address only Kaakimaka's
remaining points of error (2), (3), (4), and (6) in this summary disposition
order. We have renumbered these points of error as (1), (2), (3), and (4)
herein.

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and considered as a whole, the instructions given are

prejudicially insufficient, erroneous, inconsistent, or

misleading." State v. Kinnane, 79 Hawaiʻi 46, 49, 897 P.2d 973,

976 (1995) (cleaned up).

We conclude that the circuit court did not err in

rejecting Kaakimaka's requested definition of "[i]nstalled or

used a device in a private place" -- a definition that was not

supported by legal authority -- and that the omission of this

requested instruction did not render the jury's instructions

"prejudicially insufficient, erroneous, inconsistent, or

misleading."

(2) Kaakimaka contends that the circuit court erred in

failing to instruct the jury as to the following definition of

"[p]rivate place":

"Private place" means a place where one may
reasonably expect to be safe from casual or hostile
intrusion or surveillance, but does not include a place to
which the public or a substantial group thereof has access.
A private place is withdrawn from observation from the
public and cannot be visibly observed wholly or partly from
outside of the place by any member of the public. A
private place[] is bound by the walls, foliage, or other
obstruction from any member of the public. A private place
cannot have a clear window outside of which member(s) of
the public are invited as that opens the place to
surveillance.

The circuit court declined to give the above

definition, and instead instructed the jury on the statutory

definition of "[p]rivate place" -- i.e., "a place where one may

reasonably expect to be safe from casual or hostile intrusion or

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surveillance, but does not include a place to which the public

or a substantial group thereof has access." HRS § 711-1100

(2014).

The record does not support that the "[p]rivate place"

jury instruction given by the circuit court, which tracked the

statutory definition of "[p]rivate place" in HRS § 711-1100, was

"prejudicially insufficient, erroneous, inconsistent, or

misleading."

(3) Kaakimaka contends that the circuit court erred in

failing to instruct the jury as to the lesser included offense

of Violation of Privacy in the Second Degree, pursuant to HRS

§ 711-1111(1)(b). "Jury instructions on lesser-included

offenses must be given when there is a rational basis in the

evidence for a verdict acquitting the defendant of the offense

charged and convicting the defendant of the included offense."

State v. Martin, 146 Hawaiʻi 365, 387, 463 P.3d 1022, 1044 (2020)

(cleaned up).

HRS § 701-109(4) (2014) provides that,

An offense is so included when:

(a) It is established by proof of the same or less than
all the facts required to establish the commission of
the offense charged;

(b) It consists of an attempt to commit the offense
charged or to commit an offense otherwise included
therein; or

(c) It differs from the offense charged only in the
respect that a less serious injury or risk of injury
to the same person, property, or public interest or a

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different state of mind indicating lesser degree of
culpability suffices to establish its commission.

(Emphasis added.); Martin, 146 Hawaiʻi at 387, 463 P.3d at 1044.

"An offense is a lesser included offense of another if it

satisfies the requirements set forth in HRS § 701-109(4) which

codifies the common law doctrine of lesser included offenses."

State v. Kaeo, 132 Hawaiʻi 451, 461, 323 P.3d 95, 105 (2014)

(cleaned up).

HRS § 711-1111(1)(b) states,

A person commits the offense of violation of privacy in the
second degree if, except in the execution of a public duty
or as authorized by law, the person intentionally:

. . . .

(b) Peers or peeps into a window or other opening of a
dwelling or other structure adapted for sojourn or
overnight accommodations for the purpose of spying
on the occupant thereof or invading the privacy of
another person with a lewd or unlawful purpose,
under circumstances in which a reasonable person in
the dwelling or other structure would not expect to
be observed[.]

(Emphasis added.)

The evidence adduced at trial does not support that

Kaakimaka physically "[p]eer[ed] or peep[ed]" -- i.e., with his

eyes -- into the window of the complaining witness' (CW)

family's vacation rental home. The CW testified that she saw a

hand holding a phone, and "a little bit of a top of a head,"

outside the bathroom window. Since the evidence does not

support an element of HRS § 711-1111(1)(b), the circuit court

did not err by not instructing the jury as to that offense.

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(4) Kaakimaka contends that the circuit court erred in

denying his Motion to Suppress. "An appellate court reviews a

ruling on a motion to suppress de novo to determine whether the

ruling was right or wrong." State v. Hewitt, 153 Hawaiʻi 33, 40,

526 P.3d 558, 565 (2023) (cleaned up).

In his Motion to Suppress, Kaakimaka argued that the

evidence obtained from his phone should be suppressed because he

did not voluntarily show his phone to the arresting officer,

Officer Landon Takenishi (Officer Takenishi), and the consent

exception to the warrant requirement therefore did not apply.5

Kaakimaka testified that Officer Takenishi reached into

Kaakimaka's pocket to take the phone without permission.

Officer Takenishi testified that, while being

questioned outside the vacation rental home, Kaakimaka himself

"brought [the phone] out" and "present[ed] it to" Officer

Takenishi. Officer Takenishi further testified that, while

subsequently advising Kaakimaka of his rights at the police

station, he asked Kaakimaka "if [Kaakimaka] would give [Officer

Takenishi] permission to . . . go through [Kaakimaka's] phone,"

to which Kaakimaka gave his verbal and written consent.

5 The parties agree that Kaakimaka's phone was obtained without a
search warrant, and that it was the State's burden to prove at the
suppression hearing that there was an exception to the warrant requirement.
"A search conducted pursuant to voluntary and uncoerced consent by the person
being searched is one of the exceptions to the warrant requirement." State
v. Mahone, 67 Haw. 644, 646, 701 P.2d 171, 173 (1985) (citation omitted).

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Presented with this conflicting evidence, the circuit

court found the testimony of Officer Takenishi to be "more

credible than [Kaakimaka's testimony] considering both

witness[es'] candor, frankness, the witnesses' respective

interests in the case, the probability of the testimony, and

inconsistencies in the testimony of [Kaakimaka]."

The circuit court, as the finder of fact on the Motion

to Suppress, weighed the conflicting evidence presented and

assessed the witnesses' credibility, and concluded that,

3. In this case, Officer Takenishi had reasonable
suspicion to approach [Kaakimaka] and ask to see
[Kaakimaka's] phone to confirm or dispel his reasonable
suspicion that a crime had occurred.

4. [Kaakimaka] voluntarily showed Officer Takenishi
his phone which matched the description of the phone that
was reported. This did not constitute a search as
[Kaakimaka] voluntarily showed Officer Takenishi his phone
when he was not in custody, and was not subject to
interrogation, there is no credible evidence to suggest
[Kaakimaka] was coerced into showing Officer Takenishi his
phone.

. . . .

8. In the instant case, [Kaakimaka] was arrested
after Officer Takenishi observed that [Kaakimaka's] phone
matched the description that the reporting party had
provided. [Kaakimaka] possessed a white-face with silver-
back. At the time [Kaakimaka] was arrested, Officer
Takenishi had both a subjective and objectively reasonable
belief that [Kaakimaka] had committed a crime.

. . . .

10. In the instant case, Officer Takenishi seized
the phone from [Kaakimaka] while [Kaakimaka] was being
lawfully arrested. [Kaakimaka] had already voluntarily
taken out his phone to show Officer Takenishi. The phone
was not in a constitutionally protected area, and therefore
the phone was lawfully seized.

. . . .

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14. In this case [Kaakimaka] gave consent to have
the police search his phone while he was in custody.
[Kaakimaka] was given his Miranda rights prior to giving
consent to search the phone, and the arresting officer
reviewed the Hawaii Police Department Advice of Search and
Seizure Rights and Consent to Search form with [Kaakimaka]
which informed [Kaakimaka] that he had a constitutional
right not to have a search of his property without a search
warrant. Following these advisements [Kaakimaka] freely
and voluntarily gave consent to search his phone without
the presence of coercion.

On this record, we determine that the circuit court's

findings of fact were not clearly erroneous, and that the

circuit court was not wrong in denying Kaakimaka's Motion to

Suppress.

For the foregoing reasons, we affirm the Judgment.

DATED: Honolulu, Hawaiʻi, October 13, 2025.

On the briefs: /s/ Clyde J. Wadsworth
Associate Judge
R. Hermann Heimgartner,
for Defendant-Appellant. /s/ Kimberly T. Guidry
Associate Judge
Stephen L. Frye,
Deputy Prosecuting Attorney,
County of Hawaiʻi,
for Plaintiff-Appellee.

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CONCURRING AND DISSENTING OPINION BY HIRAOKA, J.

I concur that the circuit court did not err by denying

Kaakimaka's requested jury instructions defining "private place"

and "installed or used a device in a private place"; not

instructing the jury on Violation of Privacy in the Second

Degree; and denying Kaakimaka's motion to suppress evidence

obtained from his phone.

I respectfully dissent because I don't think we can

stop there. After holding that the charge against Kaakimaka was

sufficient, the supreme court remanded for us "to address the

remaining points of error on appeal." State v. Kaakimaka, 156

Hawai#i 302, 313, 574 P.3d 767, 778 (2025). Kaakimaka's

contention that "the State failed to present sufficient evidence

to prove beyond a reasonable doubt that Kaakimaka installed or

used a device in a private place" was included in the mandate.

Id. at 305 n.1, 574 P.3d at 770 n.1.

The supreme court mistakenly stated that we "did not

address these additional points of error and they are therefore

not raised on certiorari." Id. We addressed the sufficiency of

evidence because we needed to decide whether to vacate the

conviction with or without prejudice. The plurality held the

evidence was sufficient to support the conviction. State v.
Kaakimaka, No. CAAP-XX-XXXXXXX, 2025 WL 355165, *4 (Haw. App.

Jan. 31, 2025) (SDO), vacated and remanded by, State v.

Kaakimaka, 156 Hawai#i 302, 574 P.3d 767 (2025). I dissented.

Id. Nevertheless, we must strictly comply with the supreme

court's mandate "as determined by the directions given[.]"
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Schmidt v. Dubin, 155 Hawai#i 16, 21, 556 P.3d 362, 367 (2024).

In my view, nothing in the supreme court's opinion indicates

otherwise.

My opinion remains that the evidence did not support

Kaakimaka's conviction because of the way HRS § 711-1110.9 (2014)

is worded:
(1) A person commits the offense of violation of privacy
in the first degree if, except in the execution of a public
duty or as authorized by law:

(a) The person intentionally or knowingly installs
or uses, or both, in any private place, without
consent of the person or persons entitled to
privacy therein, any device for observing,
recording, amplifying, or broadcasting another
person in a stage of undress or sexual activity
in that place[.]

(Emphasis added.)

The words "in any private place" and "in that place"

refer to a single location the defendant or recording device and

the complaining witness must both be "in" as an attendant

circumstance of the crime.

The supreme court summarized the evidence against

Kaakimaka:
Evidence at trial indicated Kaakimaka videorecorded a
young girl taking a shower by placing a phone camera in a
high-up bathroom window that one cannot see through while
standing on the ground. The recording of Kaakimaka
admitting to "videotaping" through the bathroom window was
also received in evidence. In closing argument, Kaakimaka's
counsel conceded that there was no dispute that Kaakimaka
used the phone to record at the bathroom window, but argued
that the statutory requirement of "in a private place" was
not met because Kaakimaka "never went in the bathroom."

Kaakimaka, 156 Hawai#i at 307, 574 P.3d at 772 (emphasis added).

Kaakimaka and his phone were outside the bathroom. His

conduct absolutely violated the laws of decency and common

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courtesy, but it did not violate HRS § 711-1110.9(1)(a) because

neither Kaakimaka nor his phone were in the private place — the

bathroom — where the young girl was showering. The legislature

may wish to amend the statute to include the conduct in which

Kaakimaka engaged — installing or using a device (anywhere — for

example, in a ventilation shaft) to record an undressed person in

a private place, without the person's consent. As currently

worded, it does not. I would reverse the Judgment of Conviction

and Sentence on that basis.

/s/ Keith K. Hiraoka
Presiding Judge

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