State v. Kaakimaka

NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
31-JAN-2025
11:23 AM
Dkt. 61 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
(CR. NO. 3CPC-XX-XXXXXXX)

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

Defendant-Appellant Koa Kaakimaka (Kaakimaka) appeals
from the Judgment of Conviction and Probation Sentence (Judgment)
entered on October 17, 2022, in the Circuit Court of the Third
Circuit (Circuit Court).1/
On March 8, 2021, Plaintiff-Appellee State of Hawai#i
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/ Following a two-day trial in

1/
The Honorable Robert D.S. Kim presided.
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,
(continued...)
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August 2022, the jury returned a guilty verdict. The Circuit
Court sentenced Kaakimaka to a term of four years of probation.
This appeal followed.
Kaakimaka raises six points of error on appeal,
contending that: (1) the Circuit Court erred in denying
Kaakimaka's November 15, 2021 "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
"installed or used a device in a private place" and "private
place[,]" and on the lesser included charge of Violation of
Privacy in the Second Degree, pursuant to HRS § 711-1111(1)(b)
(Supp. 2016); (5) Kaakimaka's conviction is not supported by
sufficient evidence that he installed or used a device in a
private place; and (6) the Circuit Court erred in denying
Kaakimaka's November 15, 2021 motion to suppress evidence for
illegal search/seizure and warrantless arrest.
After reviewing the record on appeal and the relevant
legal authorities, and giving due consideration to the issues
raised and the arguments advanced by the parties, the court
resolves Kaakimaka's contentions as follows, and vacates the
Judgment.
(1) Kaakimaka contends that the Circuit Court erred in
denying his Motion to Dismiss, which argued that the indictment
was insufficient because, by not including the statutory
definition of "private place," it contained "deficient,
insufficient, and defective charging language." "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." State v. Baker, 146 Hawai#i 299, 305, 463
P.3d 956, 962 (2020) (citing State v. Wheeler, 121 Hawai#i 383,
390, 219 P.3d 1170, 1177 (2009)).
"A charge's essential elements include conduct,
attendant circumstances, and results of conduct." State v.

2/
(...continued)
recording, amplifying, or broadcasting another
person in a stage of undress or sexual activity
in that place[.]

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Kauhane, 145 Hawai#i 362, 370, 452 P.3d 359, 367 (2019) (citing
State v. Sprattling, 99 Hawai#i 312, 329 n.6, 55 P.3d 276, 293
n.6 (2002), and HRS § 702-205 (2014)). "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. (brackets omitted) (quoting State v.
Nesmith, 127 Hawai#i 48, 53, 276 P.3d 617, 622 (2012)). However,
an indictment "cannot reasonably be construed to charge an
offense if . . . the common definition of an element of an
offense set forth in the charge does not comport with its
statutory definition." Baker, 146 Hawai#i at 308, 463 P.3d at
965 (citing State v. Pacquing, 139 Hawai#i 302, 308, 389 P.3d
897, 903 (2016), and Wheeler, 121 Hawai#i at 394, 219 P.3d at
1181)).
Kaakimaka was charged with Violation of Privacy in the
First Degree. A person commits this offense when they
"intentionally or knowingly install[] or use[], 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[.]" HRS § 711-1110.9(1)(a)
(emphasis added). HRS § 711-1100 (2014) defines "private place"
as "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."
The indictment charging Kaakimaka stated, in relevant
part:

On or about the 12th day of June, 2018, in North
Kohala, in the County and State of Hawai#i, KOA KAAKIMAKA
. . . intentionally or knowingly installed or used, or both,
in any private place, without the consent of the person or
persons entitled to privacy therein, any device for
observing, recording, amplifying, and/or broadcasting
another person in a stage of undress or sexual activity in
that place, thereby committing the offense of Violation of
Privacy in the First Degree, in violation of Section
711-1110.9,(a), Hawai#i Revised Statutes, as amended[.]

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The indictment did not include the statutory definition
of "private place" or otherwise specify the type of "private
place" in which Kaakimaka committed the alleged conduct.
Kaakimaka contends that absent the statutory definition, the
indictment was "insufficient and defective," because it failed to
allege all elements of the charged offense and because the
statutory definition of "private place" does not comport with the
common definition of that phrase.
The phrase "private place" is susceptible to multiple
common meanings. Webster's, for example, sets out numerous
definitions of "private," including several definitions that
commonly modify "place," as follows:

1. belonging to some particular person: private property
. . . 8. not open or accessible to the general public: a
private beach . . . 10. without the presence of others;
alone. 11. solitary; secluded . . . .

Webster's Encyclopedic Unabridged Dictionary 1540 (1996 ed.).
The same source also sets out numerous definitions of "place,"
including the following:

1. a particular portion of space, whether of definite or
indefinite extent; 2. space in general: time and place. 3.
the specific portion of space normally occupied by anything
. . . 4. a space, area, or spot, set apart or used for a
particular purpose . . . .

Id. at 1478.
The common meaning of "private place" can thus
encompass more and/or different places than the statutory
definition. For example, a person of ordinary intelligence could
reasonably construe the phrase "private place" as a place
belonging to a particular person. Because the indictment's use
of the phrase "private place" did not "convey the extent or
limits of the statutory definition," and failed to apprise
Kaakimaka of what he was required to defend against, the charge
against him was deficient. Kauhane, 145 Hawai#i at 371, 452 P.3d
at 368 (common meaning of "obstructs" was broader than defined
term in Obstructing statute, HRS § 711-1105); Pacquing, 139
Hawai#i at 308, 389 P.3d at 903 (common meaning of "confidential
personal information" was broader than defined term in UPCPI

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statute, HRS § 708-839.55); Wheeler, 121 Hawai#i at 394, 219 P.3d
at 1181 (common meaning of "operate" was broader than defined
term in OVUII statute, HRS § 291E-61). The deficient charge
deprived Kaakimaka of the right to due process. Nesmith, 127
Hawai#i at 52, 276 P.3d at 621.
As a result, the State failed to state an offense, and
the conviction based upon it cannot be sustained. The Judgment
must be vacated and on remand, the Circuit Court must dismiss the
charge without prejudice. See Kauhane, 145 Hawai#i at 364-65,
452 P.3d at 361-62; see also Pacquing, 139 Hawai#i at 308-09, 389
P.3d at 903-04 ("Because the complaint against [the defendant] is
legally insufficient, it is dismissed without prejudice.");
Wheeler, 121 Hawai#i at 386, 219 P.3d at 1173 (affirming this
court's judgment, which vacated and remanded the case with
instructions to dismiss without prejudice, because the charge was
deficient).
(2)-(4) and (6) In light of this disposition, the
court does not reach the arguments raised in these points of
error.
(5) Kaakimaka contends that the "State failed to
present sufficient evidence to prove beyond a reasonable doubt
that [he] installed or used a device in a private place." More
specifically, he agues: "The undisputed evidence was that
Kaakimaka held a phone up to a window outside of the house. The
area outside of the window was not a private place. Thus,
Kaakimaka did not use in a private place."
We review the sufficiency of evidence on appeal as
follows:

Evidence adduced in the trial court must be considered in
the strongest light for the prosecution when the appellate
court passes on the legal sufficiency of such evidence to
support a conviction; the same standard applies whether the
case was before a judge or jury. 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. Yuen, 154 Hawai#i 434, 444, 555 P.3d 121, 131 (2024)
(brackets omitted) (quoting State v. Richie, 88 Hawai#i 19, 33,
960 P.2d 1227, 1241 (1998)).

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In order to convict Kaakimaka of Violation of Privacy
in the First Degree, the State was required to prove that he
"intentionally or knowingly install[ed] or use[d], 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[.]" HRS § 711-1110.9(1)(a); see
HRS § 711-1100 (defining "private place").
At trial, the complaining witness (CW) testified to the
following: In the summer of 2018 (later identified as June 12,
2018), while CW was showering in the bathroom of her family's
vacation rental home, she observed a hand holding up a phone
outside of the bathroom window. Panicking, CW sent a text
message to her mother, then began yelling for her. When CW's
mother came in, CW told her mother, "I think someone's trying to
take pictures of me." CW was unclothed in the shower and had not
given anyone consent to record her through the bathroom window.
CW testified that "[i]t seemed to be pretty clear that I was
seeing someone trying to see what was in the shower."
The investigating police officer, Officer Landon
Takenishi (Officer Takenishi), testified that on the day of the
incident, he went to the house and found the phone matching the
CW's description in the possession of Kaakimaka. Officer
Takenishi testified that the bathroom window at issue was
approximately six feet off the ground, and the window was above
his head when he was outside the house. He further testified
that he is about the same height as Kaakimaka.
The State also introduced photographic evidence at
trial showing that the bathroom window at issue was significantly
above eye level, such that a person outside the window would have
to be at an elevated position to view or record an individual in
the shower. Based on Officer Takenishi's testimony and the
photographic evidence, the jury could have reasonably concluded
that the position of the bathroom window did not allow a yard
worker such as Kaakimaka3/ or other passerby on the outside to

3/
Rhavi Campbell testified that he owns a landscaping company that
(continued...)

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casually observe someone taking a shower in the bathroom.
Considered in the strongest light for the prosecution,
the evidence at trial showed that Kaakimaka held up a phone to
the outside of the bathroom window to record CW taking a shower.
Kaakimaka does not dispute that CW was entitled to privacy in the
shower or that he held up the phone to the bathroom window.
Rather, he argues that as a matter of law, "[the] outside of the
house was obviously not a private place as both Kaakimaka and his
boss . . . were working there as contracted landscapers."
Not so. The plain language of HRS § 711-1110.9(1)(a)
does not distinguish between the "inside" and "outside" elements
of a "private place"; nor does it recognize a clerestory (or
high) window as the limit of a "private place" in a house.
Similarly, HRS § 711-1100 does not define a "private place" by
reference to whether it is indoors, outdoors or some combination
of the two. Rather, "private place" is defined by reference to
whether a person in that place "may reasonably expect to be safe
from casual or hostile intrusion or surveillance," and "does not
include a place to which the public or a substantial group
thereof has access." HRS § 711-1100. Here, based on the
evidence presented at trial, the jury could have reasonably
concluded that the private place at issue included both the
shower itself and the area immediately outside of the bathroom
window, as that entire space was a place where one might
"reasonably expect to be safe from casual or hostile intrusion or
surveillance," and was not "a place to which the public or a
substantial group thereof ha[d] access." Id.
Upon review of the record, the court concludes there
was substantial evidence that Kaakimaka intentionally or
knowingly used, in any private place, without the consent of the
person entitled to privacy therein, a phone for observing or
recording that person in a stage of undress in that place.
Accordingly, on this record, the evidence was sufficient to
support Kaakimaka's conviction.

3/
(...continued)
works from Kona to Honoka#a, and that he and his employee, Kaakimaka, were
working at the subject house when the alleged incident occurred.

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For the reasons discussed above, the Judgment of
Conviction and Probation Sentence entered on October 17, 2022, in
the Circuit Court of the Third Circuit, is vacated, and the case
is remanded to the Circuit Court with instructions to dismiss the
indictment without prejudice.

DATED: Honolulu, Hawai#i, January 31, 2025.

/s/ Clyde J. Wadsworth
Associate Judge

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OPINION BY HIRAOKA, J.
CONCURRING IN PART AND DISSENTING IN PART

I concur that the charge against Kaakimaka was
deficient, for the reasons stated in the plurality opinion. But
I respectfully dissent from the plurality's conclusion that the
evidence was sufficient to sustain Kaakimaka's conviction under
HRS § 711-1110.9(1)(a).
Interpretation of a statute is a question of law
reviewed de novo. Barker v. Young, 153 Hawai#i 144, 148, 528
P.3d 217, 221 (2023). We start with the statute's language;
"implicit in the task of statutory construction is our foremost
obligation to ascertain and give effect to the intention of the
legislature, which is to be obtained primarily from the language
contained in the statute itself." Id. "The rules of statutory
interpretation require us to apply a plain language analysis when
statutory language is clear. Only when there is an ambiguity in
a statute are we to resort to other methods of statutory
interpretation." Id. at 149, 528 P.3d at 222.
HRS § 711-1110.9 (2014) provides:

(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.) HRS § 711-1100 (2014) provides:

"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.

In my view the plain language of HRS § 711-1110.9(1)(a)
criminalizes a person intentionally using a camera in a private
place (as defined by statute), without the consent of another
person in that private place, for recording the other person in a
stage of undress in that private place. CW was showering in the
bathroom of a house, certainly a private place as defined by HRS
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OPINION BY GUIDRY J.
CONCURRING IN PART AND DISSENTING IN PART

For the reasons set forth below, I concur in part and
dissent in part with the plurality opinion.
I concur in part because I agree, for the reasons set
forth in the plurality's opinion, that the evidence was
sufficient to sustain Kaakimaka's conviction.
I dissent in part because, in my view, the State's
charging document was not defective. When a criminal defendant
challenges the sufficiency of a charging instrument, an
appellate court will uphold that charge if, inter alia: (1) "it
contains the elements of the offense"; and (2) it "sufficiently
apprises the defendant of what [the defendant] must be prepared
to meet." State v. Mita, 124 Hawaiʻi 385, 390, 245 P.3d 458, 463
(2010) (citation omitted). "The relevant inquiry, therefore, is
whether or not the charge [has] provided the accused with fair
notice of the essential elements." Id. (citation omitted).
"In general, where the 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 is sufficient."
State v. Wheeler, 121 Hawaiʻi 383, 393, 219 P.3d 1170, 1180
(2009) (cleaned up).
The indictment, which tracked the language of HRS
§ 711-1110.9(1)(a) provided,
COUNT 1 . . .
On or about the 12th day of June, 2018, in North
Kohala, in the County and State of Hawaiʻi, KOA KAAKIMAKA,
other than in the execution of a public duty or as
authorized by law, intentionally or knowingly installed or
used, or both, in any private place, without the consent of
the person or persons entitled to privacy therein, any
device for observing, recording, amplifying, and/or
broadcasting another person in a stage of undress or sexual
NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER

activity in that place, thereby committing the offense of
Violation of Privacy in the First Degree, in violation of
Section 711-1110.9[(1)](a), Hawaiʻi Revised Statutes, as
amended[.]

(Emphasis added.) I would conclude that the indictment's
reference to "private place" as a place where "the person or
persons [were] entitled to privacy therein," was sufficient to
put Kaakimaka on notice as to the elements of the offense for
which he was being charged.1 In my view, the statutory
definition of "[p]rivate place" comports with the common
understanding of the term.
Moreover, the record reflects Kaakimaka's knowledge
that he was being charged with using his phone to make a
recording, through a bathroom window, of CW taking a shower.
See Wheeler, 121 Hawaiʻi at 396, 219 P.3d at 1183 (noting that
when the appellate court is "determining whether a defendant has
been adequately informed of the charges against him, [it] can
consider other information" besides the charge "that may have
been provided to the defendant during the course of the case up
until the time defendant objected to the sufficiency of the
charges against him").
In this context, it is clear that Kaakimaka was
recording in a "[p]rivate place" – a place where, consistent
with the statutory definition, "one may reasonably expect to be
safe from casual or hostile intrusion or surveillance" that is
not "a place to which the public or a substantial group thereof
has access." See HRS § 711-1100. I would therefore conclude
that the charging document is not insufficient. See State v.
Aquino, 154 Hawaiʻi 388, 395, 550 P.3d 1246, 1253 (2024) ("We

1 HRS § 711-1100 defines "[p]rivate place" as "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."

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repeat that charging documents are meant to provide notice, not
to facilitate obtuse technical arguments about what is and what
is not an element of a crime, or about what complex statutory
definitions should or should not be included in a charging
document.") (cleaned up).
For the foregoing reasons, I respectfully disagree
with the plurality's decision to vacate the Judgment for
insufficiency of the charging document, and would address the
remaining points of error.
/s/ Kimberly T. Guidry
Associate Judge

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