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Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
09-APR-2026
07:58 AM
Dkt. 72 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI‘I

STATE OF HAWAI‘I, Plaintiff-Appellee,
v.
EDMUND POLIDO, Defendant-Appellant

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

SUMMARY DISPOSITION ORDER
(By: Nakasone, Chief Judge, McCullen and Guidry, JJ.)

In this appeal, Defendant-Appellant Edmund Polido
(Polido) challenges his trespass conviction on grounds that his
conduct was constitutionally protected as a native Hawaiian
practice, the improper denial of a continuance, and for
ineffective assistance by his trial defense counsel. We affirm.
Polido appeals from the February 16, 2024 "Judgment
and Notice of Entry of Judgment," (Judgment) entered by the
District Court of the Third Circuit (District Court).1 Following

1 The Honorable Kimberly Tsuchiya presided.
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a bench trial, Polido was convicted of second-degree trespass
for entering Kapāpala Ranch on Hawai‘i island.
On appeal, Polido raises five points of error (POEs),2
contending that the District Court erred by (1) denying Polido's
motion to dismiss, which argued that his conduct of hunting pig
constituted a native Hawaiian practice under State v. Hanapi, 89
Hawaiʻi 177, 970 P.2d 485 (1998),3 and challenging certain
findings of fact (FOFs) and conclusions of law (COLs) in the
order denying the motion;4 (2) denying Polido's trial counsel's
continuance of the trial "to secure a relevant and material
witness"; and (3) finding Polido guilty when sufficient evidence
established Polido engaged in a constitutionally protected
native Hawaiian practice. Polido additionally contends that
(4) his trial counsel violated his "fundamental right to

2 We have numbered Polido's points "A" through "E". See Hawaiʻi
Rules of Appellate Procedure (HRAP) Rule 28(b)(4) (requiring numbered POEs).
3 Hanapi sets forth three factors (Hanapi factors) that defendants
asserting a constitutionally protected native Hawaiian practice must show:
(1) they qualify as a native Hawaiian "within the guidelines set out in" Pub.
Access Shoreline Haw. v. Haw. Cnty. Plan. Comm'n (PASH), 79 Hawaiʻi 425, 448-
49, 903 P.2d 1246, 1269-70 (1995); (2) their "claimed right is
constitutionally protected as a customary or traditional native Hawaiian
practice"; and (3) "the exercise of the right occurred on undeveloped or
'less than fully developed property.'" 89 Hawaiʻi at 185-86, 970 P.2d at 493-
94 (citations omitted). "Once a criminal defendant satisfies the three-prong
showing required by Hanapi, there remains a balancing test before the
defendant's assertion of the native Hawaiian privilege negates any possible
criminal conviction." State v. Palama, No. CAAP-XX-XXXXXXX, 2015 WL 8566696,
at *8 (Haw. App. Dec. 11, 2015) (mem. op.) (brackets omitted) (quoting State
v. Pratt, 127 Hawaiʻi 206, 216, 277 P.3d 300, 310 (2012)). "In performing the
balancing test, a court must look to the totality of circumstances and
balance the State's interest in regulating the activity against the
defendant's interests in conducting the traditional or customary practice"
(balancing test). Id. (citing Pratt, 127 Hawaiʻi at 216-18, 277 P.3d at 310-
12).
4 Polido does not present specific argument related to his
challenges to FOFs 14-16 and COL 27. See HRAP Rule 28(b)(7). We address COL
26 infra.

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effective assistance of counsel"; and (5) "[t]he multitude of
errors" set forth supra "had the cumulative effect" of denying
Polido his "due process right to a fundamentally fair trial."
Upon careful review of the record and the briefs
submitted by the parties and having given due consideration to
the arguments advanced and the issues raised, we resolve
Polido's points of error as follows.
On January 31, 2023, Plaintiff-Appellee State of
Hawaiʻi (State) charged Polido with "knowingly enter[ing] or
remain[ing] unlawfully in or upon premises, located at
Kap[ā]pala Ranch, which were fenced or enclosed in a manner
designed to exclude intruders," committing second-degree
criminal trespass in violation of Hawaii Revised Statutes (HRS)
§ 708-814(1)(a). Following a July 13, 2023 hearing on Polido's
motion to dismiss and defense continuations of trial to secure
witnesses, trial was conducted on November 17, 2023 and February
16, 2024, after which Polido was found guilty.
1. Sufficiency of evidence for conviction
Polido argues he should not have been found guilty
because he presented sufficient evidence at trial to establish a
constitutionally protected native Hawaiian practice. Polido
asserts that both he and Palikapu Dedman (Dedman) testified that
"hunting has been traditionally and customarily practiced in the
Kapāpala Ranch area for generations."
The record reflects that the State did not present any
evidence at trial because the parties "stipulated to all the
essential facts necessary to warrant conviction[,]" similar to
the procedure in Pratt. 127 Hawaiʻi at 212, 277 P.3d at 306.
Here, the trial focused on Polido's attempt to prove that his
trespass offense was a constitutionally protected native
Hawaiian practice. The parties' factual stipulation established

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that Polido's trespass "occurred within an area known as
Kapāpala Ranch"; "the entire perimeter of Kapāpala Ranch is
fenced"; there are two forest reserves "across the mauka
perimeter of [Kapāpala] [R]anch" where hunting is allowed;
Kapāpala Ranch has a procedure to permit access through "gates
that allow the public access to the reserves"; access through
Kapāpala Ranch's gates is allowed for members of the public who
register with Kapāpala Ranch and call in the morning of the day
they want access to obtain the gate code; Polido was aware of
the procedure to obtain public access to Kapāpala Ranch and had
previously registered; and Polido "entered Kapāpala Ranch" on
July 11, 2023 with his cousin and shot two pigs with a rifle.
Thus, similar to the procedural posture of Pratt, this court
must affirm the trespass conviction unless Polido "can prove his
defense that the privilege for native Hawaiian practice applies
in this case." See id.; Hanapi, 89 Hawaiʻi at 183, 970 P.2d at
491 ("When a criminal defendant claims to have been engaged in a
constitutionally protected activity, the burden is placed on him
or her to show that his or her conduct fell within the
prophylactic scope of the constitution's provision.") (citation
omitted). Here, the District Court found Polido guilty and
concluded the constitutional privilege did not apply based on
the second Hanapi factor.
Assuming, arguendo, that Polido satisfied the three
Hanapi factors, a defendant asserting a constitutionally
protected native Hawaiian practice must also prevail on the
balancing test. See Palama, 2015 WL 856696 at *8. In this
regard, the State argues in its Answering Brief that Polido did
not show that his exercise of the claimed privilege outweighed
the State's interest as follows:

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Even assuming [Polido] satisfied the three factors of
Hanapi, under the totality of the circumstances his
exercise of the native Hawaiian practice was unreasonable.
[Polido] went hunting without consultation or notice on an
active, working ranch, and he did so with a firearm. . . .
He failed to utilize the valid method of hunting in the
area of the ranch, which he had utilized previously[.]
. . .

Polido's Reply Brief responds that Hanapi requires a balancing
"of the State's regulatory interests," and that here, the
private lessees "– not the State – are regulating conduct."
(Emphasis omitted.)
Polido asserts a constitutional privilege. "We answer
questions of constitutional law by exercising our own
independent judgment based on the facts of the case." Pratt,
127 Hawaiʻi at 212, 277 P.3d at 306. "[W]e review questions of
constitutional law under the right/wrong standard." Hanapi, 89
Hawaiʻi at 182, 970 P.2d at 490 (citation omitted). "It is only
after the prosecution meets [its] burden" of proving the crime
charged "that any offered affirmative defense becomes relevant."
Pratt, 127 Hawaiʻi at 212, 277 P.3d at 306. Thus, this court
"must affirm the judgment" of conviction unless Polido "can
prove his defense that the privilege for native Hawaiian
practices applies in his case." Id.
Here, Polido was charged with one count of Criminal
Trespass in the Second Degree under HRS § 708-814(1)(a) (2014 &
2019 Supp.), which provides that "a person commits the offense
of criminal trespass in the second degree if . . . [t]he person
knowingly enters or remains unlawfully in or upon premises that
are enclosed in a manner designed to exclude intruders or are
fenced[.]"
The record reflects that Kapāpala Ranch's property was
fenced. The record also shows, however, that Kapāpala Ranch
permitted daily public access through three gates to adjoining

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lands where hunting was allowed. Polido was aware of the
procedure for requesting access through Kapāpala Ranch's gates
and had previously registered for such access. Polido testified
at trial that he felt he should be able to access the area
without restriction and at any time, to exercise his native
Hawaiian gathering privilege and that "there shouldn't be a gate
there."
On this record, we conclude Polido's native Hawaiian
practice was not "reasonably exercised," and the balance weighs
in favor of the State's interest in prohibiting unlawful entry
on fenced property, where Polido made no attempt to avail
himself of the procedures available to lawfully enter Kapāpala
Ranch's property. See State v. Armitage, 132 Hawaiʻi 36, 54-55,
319 P.3d 1044, 1062-63 (2014) (affirming defendants' convictions
for illegal entry into a protected reserve, where defendants
"did not 'reasonably exercise' their constitutionally protected
native Hawaiian rights" because they "made no attempt to avail
themselves of the applicable procedures to obtain lawful entry";
and "the balance weighs in favor of the State's interest in
protecting the health and safety" of those traveling to the
reserve (brackets and citation omitted)); Pratt, 127 Hawaiʻi at
218, 277 P.3d at 312 (affirming conviction for residing in a
closed area of a state park, where "the balancing of interests"
weighed in favor of the State's interest in limiting visitors to
the park "for health and safety reasons, and to protect park
resources[,]" and against the defendant's claimed native
Hawaiian privilege of unrestricted access, where the defendant
"did not show any attempts to engage in his native Hawaiian
practice within the limits of state law"); State v. Au, No.
CAAP-XX-XXXXXXX, 2025 WL 3046208, at *2-3 (Haw. App. Oct. 31,
2025) (SDO) (affirming conviction for possessing an illegal

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fishing net, where "the balance weighed in favor of the State's
interest to regulate net size and protect smaller fish" and did
not "unreasonably regulate" the exercise of defendant's claimed
native Hawaiian right, and where the defendant did not show that
he attempted to fish "in accordance with applicable regulations
by using a scoop net or obtain a permit to use a fine mesh throw
net" (citations omitted)).
Thus, there was sufficient evidence to support
Polido's trespass conviction, where Polido did not prevail on
the balancing test necessary to "prove his defense that the
privilege for native Hawaiian practices applie[d]" in this case.
See Pratt, 127 Hawaiʻi at 212, 277 P.3d at 306.
For the same reasons discussed above, we conclude that
based on the record pertinent to the motion to dismiss, the
circuit court did not abuse its discretion in denying Polido's
motion to dismiss.
2. Ineffective assistance of counsel
Polido argues that trial counsel was ineffective for
failing "to prepare evidence to support" the motion to dismiss
and for failing "to request a continuance" of the hearing to
engage in such preparation. These alleged omissions do not
establish ineffective assistance because they did not prevent
Polido from presenting his defense at trial. See State v.
DeLeon, 131 Hawaiʻi 463, 478-79, 319 P.3d 382, 397-98 (2014)
(requiring that the "specific errors or omissions reflecting
counsel's lack of skill, judgment, or diligence" result in
"either the withdrawal or substantial impairment of a
potentially meritorious defense" to establish ineffective
assistance of counsel).
Polido also argues that trial counsel provided
ineffective assistance at trial for "fail[ing] to subpoena

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civilian and/or expert witnesses" to testify on "whether pig
hunting was a Native Hawaiian traditional and customary
practice." We need not address this argument in light of our
disposition above, where Polido's failure to prevail on the
balancing test renders any challenge based on the second Hanapi
factor immaterial. We also need not reach Polido's remaining
POEs.
For the foregoing reasons, we affirm the February 16,
2024 Judgment entered by the District Court of the Third
Circuit.
DATED: Honolulu, Hawai‘i, April 9, 2026.
On the briefs:
/s/ Karen T. Nakasone
Kirsha K.M. Durante,
Chief Judge
Court-Appointed Counsel,
Native Hawaiian Legal
/s/ Sonja M.P. McCullen
Corporation,
Associate Judge
for Defendant-Appellant.
/s/ Kimberly T. Guidry
Charles E. Murray, III
Associate Judge
Deputy Prosecuting Attorney,
County of Hawai‘i,
for Plaintiff-Appellee.