State v. Kaakimaka
CourtHawaii Supreme Court
Date FiledJune 22, 2026
DocketSCWC-22-0000690
JudgeGinoza
StatusPublished
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Full Opinion
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Electronically Filed
Supreme Court
SCWC-XX-XXXXXXX
22-JUN-2026
09:07 AM
Dkt. 38 OPC
IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
---o0o---
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
CONCURRING OPINION BY GINOZA, J.
I respectfully concur. The charged offense under
Hawaiʻi Revised Statutes (HRS) § 711-1110.9(1)(a) (2014), and the
appeals to the Intermediate Court of Appeals (ICA) and this
court, have resulted in varying opinions as to whether there was
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sufficient evidence to support the conviction of Petitioner/
Defendant-Appellant Koa Kaakimaka (Kaakimaka).1 Like the
majority, I conclude that the evidence in this case is
insufficient because neither the iPhone used to videorecord the
complaining witness (CW) nor Kaakimaka were within the bathroom
where the CW was located. To me, however, the plain language of
HRS § 711-1110.9(1)(a) is ambiguous on this issue and is
reasonably subject to different interpretations. It is
reference to statutes in pari materia that clarifies the
legislative intent.
HRS § 711-1110.9(1)(a) states:
(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
1 In the ICA’s first Summary Disposition Order in this case, that court
held the charge against Kaakimaka was deficient, but in a 2-1 split decided
there was sufficient evidence to support his conviction and thus the case
should be dismissed without prejudice. State v. Kaakimaka, No. CAAP-22-
0000690, 2025 WL 355165, at *2, *4-6 (Haw. App. Jan. 31, 2025) (SDO). In the
first appeal to this court, we accepted Plaintiff-Appellee State of Hawaiʻi’s
(State) petition to review whether the charge was sufficient, ruled that it
was, and remanded the case to the ICA to address Kaakimaka’s other issues on
appeal. State v. Kaakimaka, 156 Hawai‘i 302, 308-09, 312-13, 574 P.3d 767,
773-74, 777-78 (2025). Kaakimaka did not challenge the ICA’s sufficiency of
the evidence ruling and we mistakenly stated the issue had not been decided
by the ICA. On remand to the ICA, one of the issues addressed was
Kaakimaka’s argument that the Circuit Court erred by not instructing the jury
that “[i]nstalled or used a device in a private place” meant the “physical
intrusion within the boundary of a private place by the whole physical device
or with any part of the physical device.” State v. Kaakimaka, No. CAAP-22-
0000690, 2025 WL 2902720, at *2 (Haw. App. Oct. 13, 2025) (SDO) (internal
quotation marks omitted). The ICA rejected Kaakimaka’s argument, id., and he
now contests that ruling in this second appeal to our court. Although raised
in the context of jury instructions, Kaakimaka’s petition requires us to now
specify the requirements under HRS § 711-1110.9(1)(a) and we ordered
supplemental briefing on the sufficiency of the evidence.
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broadcasting another person in a stage of undress or
sexual activity in that place[.]
Plaintiff-Appellee State of Hawaiʻi’s primary argument
is that HRS § 711-1110.9(1)(a) covered circumstances where a
person and device were physically outside the private place, but
where the person intentionally or knowingly “uses” a device to
observe, record, amplify or broadcast someone “in any private
place.” In my view, this interpretation cannot be ruled out
based only on the plain language of the statute.
However, in assessing the legislative intent for HRS
§ 711-1110.9(1)(a), the statutory scheme for first degree
violation of privacy under HRS § 711-1110.9 and second degree
violation of privacy under HRS § 711-1111 (2014 & Supp. 2025)
convinces me that the legislature intended the device or the
perpetrator of a HRS § 711-1110.9(1)(a) offense to be within the
private place.
When interpreting a statute:
our foremost obligation is to ascertain and give effect to
the intention of the legislature, which is obtained
primarily from the language contained in the statute[s]
themselves. Second, [l]aws in pari materia, or upon the
same subject matter, shall be construed with reference to
each other. What is clear in one statute may be called in
aid to explain what is doubtful in another.
State v. Yokota, 143 Hawai‘i 200, 205, 426 P.3d 424, 429 (2018)
(emphasis added); HRS § 1-16 (2009) (“Laws in pari materia, or
upon the same subject matter, shall be construed with reference
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to each other. What is clear in one statute may be called in
aid to explain what is doubtful in another.”).
Like the majority, I find HRS § 711-1111(1)(b) and (e)
particularly significant, which state:
(1) 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;
. . .
(e) Installs or uses outside a private place any
device for hearing, recording, amplifying, or broadcasting
sounds originating in that place which would not ordinarily
be audible or comprehensible outside, without the consent
of the person or persons entitled to privacy therein[.]
HRS § 711-1111(1)(b) addresses someone peering or peeping “into
a window or other opening of a dwelling or other structure” and
thus contemplates someone being outside and looking in. Even
more instructive, HRS § 711-1111(1)(e) expressly addresses when
someone “[i]nstalls or uses outside a private place any device
for hearing, recording, amplifying, or broadcasting sounds[.]”
(Emphases added.) Both HRS § 711-1111(1)(b) and (e) demonstrate
how the legislature clearly articulated its intent when it meant
to address situations where someone or a device is outside a
structure or a “private place.”
By construing HRS § 711-1110.9(1)(a) with reference to
HRS § 711-1111(1)(b) and (e), the legislative intent is
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clarified that under HRS § 711-1110.9(1)(a) the language “uses .
. . in any private place” means that the device or the
perpetrator be within the private place.
Here, there is no evidence that Kaakimaka or his
iPhone were within the bathroom where the CW was located. I
therefore conclude that the evidence in this case is
insufficient to support his conviction under HRS § 711-
1110.9(1)(a).
For these reasons, I respectfully concur.
/s/ Lisa M. Ginoza
Associate Justice
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