State v. Kaakimaka

Opinions

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Electronically Filed Supreme Court SCWC-XX-XXXXXXX 22-JUN-2026 09:04 AM Dkt. 36 OP

IN THE SUPREME COURT OF THE STATE OF HAWAIʻI

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STATE OF HAWAIʻI, Respondent/Plaintiff-Appellee,

vs.

KOA KAAKIMAKA, Petitioner/Defendant-Appellant.

SCWC-XX-XXXXXXX

CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CAAP-XX-XXXXXXX; CASE NO. 3CPC-XX-XXXXXXX)

JUNE 22, 2026

DEVENS, C.J., McKENNA, AND EDDINS, JJ., AND CIRCUIT JUDGE SOUZA, ASSIGNED BY REASON OF VACANCY; WITH GINOZA, J., CONCURRING SEPARATELY

OPINION OF THE COURT BY EDDINS, J.

I.

A man stood outside a vacation home and held his phone up

to a high bathroom window. A teenaged girl was inside, in the

shower. She saw the phone. She saw a hand. She did not see *** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***

the man, because the man was never in the room with her. He was

outside.

The State charged the man with a single count, violation of

privacy in the first degree, Hawaiʻi Revised Statutes (HRS)

§ 711-1110.9(1)(a) (Supp. 2018). The statute makes it a class C

felony for a person to “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) (emphases added).

“In” means inside. The statute uses that preposition

twice. The device must be installed or used “in” the private

place, and the person recorded must be “in that place.” Both

point inward. The clause “without consent of the person or

persons entitled to privacy therein” reinforces the spatial

requirement.

The evidence showed that the phone was outside a screen

that covered a glass window. The man stood beneath the window

and held the phone up. He never entered the bathroom. Neither

did the phone.

Article I, section 5 of the Hawaiʻi Constitution forbids the

State from depriving any person of liberty without due process

of law. Due process demands proof of every element of every

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offense, beyond a reasonable doubt. The State did not, and on

this record could not, prove that the device was used “in” the

private place.

The conviction cannot stand. We reverse.

II.

Koa Kaakimaka was tried over two days in the Circuit Court

of the Third Circuit.

The trial evidence, largely undisputed, established the

following.

In June 2018, a woman and her family vacationed at a rental

home on Hawaiʻi Island. The woman’s 15-year-old daughter went to

shower. The shower was a walk-in. It had no door. It sat

inside an enclosed bathroom. One wall had a window.

The teenager took her phone into the shower. Music was

playing. She washed her hair. She sang along. Then she looked

up. A phone was in the window, shaking, as if whoever held it

was trying to prop themselves up. Behind it she could make out

a hand, a wrist, the top of a head. The phone was a white or

silver iPhone 5s. Outside the glass.

The girl panicked. She texted her mother. She screamed.

Her mother came in and found her cowering nude against the wall

under the window. The mother threw a towel around her daughter,

went outside to check, and called the police.

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A Hawaiʻi County Police Department officer responded. He

photographed the bathroom and the area outside the window.

Those photographs showed that the window sat about six feet

above the ground on the exterior wall of the bathroom. A window

screen covered the outside of the glass. The roof of the house

overhung the window. When the officer tried to record through

the screen himself, the result was an image laced with the

cross-hatching of the screen mesh.

The officer located Kaakimaka at the rental property.

Kaakimaka had a phone matching the girl’s description. In a

recorded interview, Kaakimaka admitted he had tried to

videorecord the shower area through the bathroom window with his

phone. He said he deleted the recording. No recording was

recovered.

The jury convicted Kaakimaka as charged.

Kaakimaka appealed, raising jury-instruction issues,

insufficient evidence, a suppression challenge, and a deficiency

in the indictment.

A divided Intermediate Court of Appeals (ICA) panel vacated

the conviction on charging-document grounds. Because the ICA

plurality held that the evidence was sufficient to convict, it

dismissed the indictment without prejudice. Judge Hiraoka

dissented on sufficiency. He concluded that the plain statutory

language requires the device to be “in” the private place.

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Because, “[t]he State did not introduce evidence that Kaakimaka

or his phone were ‘in’ the bathroom where [the teenager] was

showering,” Judge Hiraoka reasoned that there was insufficient

evidence to convict Kaakimaka.

The State sought cert.

This court accepted cert and decided only the charging-

document issue. State v. Kaakimaka, 156 Hawaiʻi 302, 305, 574

P.3d 767, 770 (2025). The indictment properly charged

Kaakimaka, we ruled. Id. The case was remanded to the ICA to

address Kaakimaka’s other points of error. Id.

On remand, the ICA rejected Kaakimaka’s remaining points of

error. Judge Hiraoka concurred in part and dissented in part.

He pointed out that this court had mistakenly stated that the

ICA had not addressed sufficiency. “We addressed the

sufficiency of evidence because we needed to decide whether to

vacate the conviction with or without prejudice,” Judge Hiraoka

correctly observed. The plurality held the evidence was

sufficient and he had dissented. He repeated his position:

“[t]he 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.”

Kaakimaka applied for cert. He raised jury instruction

issues, including proposed and rejected definitions of

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“installed or used a device in a private place” and “private

place” — the same statutory language at the heart of the

sufficiency question. He did not separately raise sufficiency.

We accepted cert and ordered supplemental briefing per

Hawaiʻi Rules of Appellate Procedure Rule 28(b)(4) to address

whether substantial evidence supported the conviction. Both

parties briefed the issue.

We hold the evidence insufficient and reverse Kaakimaka’s

conviction.

III.

HRS § 711-1110.9(1)(a) requires that the device, or the

person using it, be in the private place.

“Statutory interpretation starts with the statute’s words.”

Alpha, Inc. v. Bd. of Water Supply, 154 Hawaiʻi 486, 490, 555

P.3d 173, 177 (2024). Words mean what they ordinarily mean,

unless the statute signals otherwise. Saranillio v. Silva, 78

Hawaiʻi 1, 10, 889 P.2d 685, 694 (1995).

The text reads: 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[.]

HRS § 711-1110.9(1)(a) (emphases added).

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Three textual signals do the work.

First, “installs or uses, or both, in any private place”

fixes the act and where it occurs. The verbs and the

prepositional phrase are tied together. The defendant must

install or use “in” the private place. Not from outside it.

Not adjacent to it. Inside it.

Second, “in that place” returns to the same location. The

legislature chose a single anchor. The defendant’s installation

or use occurs there. The victim is observed or recorded there.

“In” appears twice, and each time it points to one place.

Third, “without consent of the person or persons entitled

to privacy therein” reinforces the spatial reading. “Therein”

means inside. The privacy interest the legislature meant to

protect is freedom from intrusion within a bounded space.

Put more plainly, this is grammar. The prepositional

phrases (“in any private place,” “in that place”) lock to the

verbs (“installs,” “uses”). “Therein” seals the reading. It

reaches back to the same place. Three locational markers, all

pointing inward. Grammatical structure locates the act inside

the place the preposition names. Simple syntax. Simple result.

“In” is not statutorily defined. Its ordinary meaning is

clear. Merriam-Webster defines “in” as a function word

indicating “inclusion, location, or position within limits.”

In, Merriam-Webster Online Dictionary, https://www.merriam-

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webster.com/dictionary/in [https://perma.cc/AU28-K5QG]. To be

“in” a place is to be inside it. That is what the word has

always meant. That is what it means here.

English speakers use it that way every day. A person who

says “the camera is in the drawer” does not mean the camera is

pointed at the drawer from across the room.

The State asks us to give a felony statute that uses

perhaps the most ordinary word in the language a meaning the

word does not carry in any other context, legal or otherwise.

The legislature chose a common preposition. Common prepositions

do common work.

We “cannot change the language of the statute, supply a

want, or enlarge upon it in order to make it suit a certain

state of facts.” State v. Haugen, 104 Hawaiʻi 71, 75, 85 P.3d

178, 182 (2004) (quoting State v. Dudoit, 90 Hawaiʻi 262, 271,

978 P.2d 700, 709 (1999)). The State would have us supply a

want. Haugen forbids it.

The surrounding statutory context confirms the unambiguous

textual reading. HRS § 711-1111(1)(e) (2014 & Supp. 2016),

violation of privacy in the second degree, addresses devices

used “outside a private place” to capture sounds originating

inside. The legislature knew how to write “outside” when it

wanted to. It used “outside” in the second-degree statute. It

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used “in” in the first-degree statute. The contrast is

deliberate.

The second-degree offense makes the same distinction

internally. HRS § 711-1111(1)(d) uses identical language to the

first-degree offense — “[i]nstalls or uses, or both, in any

private place” — for recording sounds or events other than

undress or sexual activity. The neighboring subsection, (1)(e),

separately addresses devices used “outside a private place.”

The two work as a pair. One covers inside. The other covers

outside. The same “in any private place” phrase appears in both

the first-degree and the second-degree offenses. It cannot mean

“inside” in one and “outside or near” in the other.

HRS § 711-1111(1)(b) reinforces the point from another

angle. That subsection punishes a person who “[p]eers or peeps

into a window or other opening of a dwelling” for a lewd or

unlawful purpose. It’s a different offense with different

elements – eye-based observation, a dwelling adapted for

overnight accommodations, a specific illicit purpose. What

matters here is where the legislature placed it. Outside-the-

window conduct went in the second-degree offense, a misdemeanor.

That placement tells us the first-degree offense was not written

to cover the same spatial zone. Under the correct reading, the

two provisions occupy separate ground: subsection (1)(a) reaches

devices used inside the private place, and subsection (1)(b)

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reaches conduct from outside. The State’s construction would

collapse that separation and invite the kind of “inconsistency,

contradiction, and illogicality” Cornelio tells us to avoid.

State v. Cornelio, 84 Hawaiʻi 476, 484, 935 P.2d 1021, 1029

(1997).

We pause to address the concurrence. It agrees with the

outcome but reaches it on different grounds. The concurrence

treats HRS § 711-1110.9(1)(a) as ambiguous on whether the device

or perpetrator must be inside the private place. It resolves

the putative ambiguity by reading the first-degree statute

against HRS § 711-1111(1)(b) and (e). So we part ways at the

threshold question: whether the first-degree statute is

unambiguous on its face.

The first-degree’s text is unambiguous. Pari materia

confirms plain readings. It does not unsettle them.

The concurrence relies on Yokota for the canonical rule

that pari materia clarifies the doubtful via the clear. State

v. Yokota, 143 Hawaiʻi 200, 205, 426 P.3d 424, 429 (2018). But

the rule presupposes ambiguity in the statute under

interpretation. The concurrence believes that precondition is

met. Our textual reading shows it is not.

Treating a clear statute as doubtful is precisely the move

Obrero forecloses. See State v. Obrero, 151 Hawaiʻi 472, 479,

517 P.3d 755, 762 (2022) (pari materia is inapplicable where a

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statute is unambiguous on its face); see also Barker v. Young,

153 Hawaiʻi 144, 149, 528 P.3d 217, 222 (2023) (pari materia

clarifies the doubtful; it does not “create doubt” in a clear

statute).

HRS § 711-1110.9(1)(a)’s grammar ties “in any private

place” to “installs or uses.” Comparison with HRS § 711-

1111(1)(b) and (e) merely confirms what the text supplies.

We return to the State’s argument. The State insists that

the phone was used in the private place because the window is

six feet off the ground, not accessible to a casual passerby,

and under the roof overhang. From these facts the State reasons

that the window area is part of the bathroom itself. The window

frame, the windowsill, and the space beneath the overhang, the

State’s argument goes, are part of the same structure as the

bathroom, and are not separate “places.”

But the bathroom is the private place. The walls bound it.

The screen sits on the outside of the glass. A roof overhang is

shelter from rain. It does not extend the boundaries of the

room inside. The overhang covers the walkway. It does not move

the walls.

On a sufficiency challenge, we ask whether substantial

evidence, viewed in the light most favorable to the State,

supports each element. State v. Kalaola, 124 Hawaiʻi 43, 49, 237

P.3d 1109, 1115 (2010).

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The State proved much. It proved Kaakimaka used a phone.

It proved he aimed it at a bathroom window. It proved a 15-

year-old girl was showering on the other side of that window.

It proved Kaakimaka later admitted that he had tried to

videorecord her and to delete what he recorded. It proved he

was found nearby with a phone matching the girl’s description.

The State proved a great deal about the reprehensible conduct of

a man who had no business doing what he did.

What it did not prove, because no witness ever said it,

because no photograph ever showed it, and because Kaakimaka’s

own statement undercut it, is that the phone, or any part of

Kaakimaka, was inside the bathroom.

The teenaged girl was clear. The phone she saw was

“outside of the glass.” The officer confirmed it. The State

never claimed otherwise.

On this record the verdict cannot stand. Nor can the case

be retried on an included offense.

Although the parties treated HRS § 711-1111(1)(d) as an

included offense at trial, we address it briefly because the

trial record does not support that treatment. The only three

second-degree offenses bearing on violations of privacy in the

first degree require elements the first-degree offense does not.

See HRS § 701-109(4)(a) (2014 & Supp. 2018) (included offenses

are those “established by proof of the same or less than all the

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facts required to establish the commission of the offense

charged”); HRS § 711-1111(1)(b) (peering or peeping into a

dwelling or other structure for a lewd or unlawful purpose), HRS

§ 711-1111(1)(d) (recording in a private place events “other

than another person in a stage of undress or sexual activity”),

HRS § 711-1111(1)(e) (recording outside a private place to hear,

amplify, or broadcast sounds).

A conviction under subsection (1)(d) would require proof

that the person was not in a stage of undress or sexual

activity. The evidence here proves the opposite. The girl was

undressed in the shower. The same undisputed evidence that

established the undress element of the violation of privacy in

the first degree charge forecloses a (1)(d) conviction. See HRS

§ 701-109(4)(a). Because there is no applicable included

offense in this case, violation of privacy in the second degree

may not be retried. State v. Malufau, 80 Hawaiʻi 126, 138, 906

P.2d 612, 624 (1995).

Reversal on insufficient evidence disposes of the case.

Double jeopardy bars retrial. See State v. Kaulia, 128 Hawaiʻi

479, 496, 291 P.3d 377, 394 (2013).

IV.

The legislature defined this crime by where the device or

person went. The device did not go where the law requires.

That ends it.

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The State warns that our reading leaves a gap in coverage.

A camera concealed in a ventilation shaft above a toilet stall.

A camera behind a one-way mirror in the next room. A telephoto

lens pointed from across the street. A drone hovering above the

property.

But a spatial requirement that turns on what a device can

reach erases the crime’s locational element and is no

requirement at all.

No doubt certain scenarios are disturbing. Others, like a

home security system that catches a neighbor’s open window, may

not be. While unsettling situations may invite a legislative

response, our role is to apply the law as written, not the law

that might be written tomorrow.

We vacate the ICA’s November 20, 2025 Judgment on Appeal.

We reverse the circuit court’s Judgment of Conviction entered

October 17, 2022. We remand to the circuit court with

instructions to enter a judgment of acquittal.

“In” means in. The phone was out.

R. Hermann Heimgartner /s/ Vladimir P. Devens for petitioner /s/ Sabrina S. McKenna Charles E. Murray III for respondent /s/ Todd W. Eddins

/s/ Kevin A.K. Souza