“In Means In”: HRS § 711-1110.9(1)(a) Requires the Recording Device (or Its Use) to Occur Inside the Private Place

Case: State v. Kaakimaka (Haw. Sup. Ct. June 22, 2026, SCWC-22-0000690) (opinion by Eddins, J.; Ginoza, J., concurring separately).
Holding (rule): For violation of privacy in the first degree under HRS § 711-1110.9(1)(a), the State must prove the device was installed or used in the private place; using a phone from outside a bathroom window does not satisfy the statute’s locational element. Insufficient-evidence reversal requires acquittal and bars retrial.

I. Introduction

This case arose from a voyeurism incident at a vacation rental on Hawaiʻi Island. A 15-year-old girl, showering inside an enclosed bathroom, saw a phone held up to a high bathroom window. The phone (and the person holding it) remained outside. The defendant, Koa Kaakimaka, later admitted he tried to videorecord through the window and said he deleted the recording.

The State charged a single felony count: violation of privacy in the first degree, HRS § 711-1110.9(1)(a), which criminalizes intentionally or knowingly installing or using a device “in any private place” to observe or record a person “in that place” in a stage of undress or sexual activity, without consent of those entitled to privacy “therein.”

The core issue on certiorari was straightforward but consequential: does “in any private place” require the device (or its use) to be physically inside the private place, or can the element be satisfied by recording from outside through a window?

II. Summary of the Opinion

The Hawaiʻi Supreme Court reversed the conviction for insufficient evidence. The court held that the statutory text is unambiguous: “in” means inside, and HRS § 711-1110.9(1)(a) requires the device be installed or used inside the private place. Because the evidence showed the phone was “outside of the glass,” the State failed to prove an essential element beyond a reasonable doubt.

The court further held that no applicable included offense could be retried on this record, and that double jeopardy bars retrial after an insufficiency reversal. The case was remanded with instructions to enter a judgment of acquittal.

III. Analysis

A. Precedents Cited

• Alpha, Inc. v. Bd. of Water Supply (2024): Cited for the foundational approach that statutory interpretation begins with the statute’s words. The court used Alpha to justify resolving the case at the textual level rather than by policy concerns about “gaps.”
• Saranillio v. Silva (1995): Cited for the rule that words carry their ordinary meaning unless the statute signals otherwise. This supported the court’s insistence that “in” retains its everyday meaning: within the limits of a place.
• State v. Haugen (2004) (quoting State v. Dudoit (1999)): Used to reject the State’s proposed expansion of the statute. The court framed the State’s reading as an invitation to “supply a want” (rewrite the locational element) to fit troubling facts—something Haugen and Dudoit forbid.
• State v. Cornelio (1997): Cited for the principle that courts should avoid interpretations producing “inconsistency, contradiction, and illogicality.” Here, Cornelio supported reading the first-degree “in any private place” language harmoniously with the second-degree scheme (which separately addresses “outside a private place” conduct), preserving coherent statutory structure.
• State v. Yokota (2018): Invoked in the court’s discussion of the concurrence’s approach to pari materia. Yokota provides that pari materia clarifies doubtful statutes by reference to related clear statutes.
• State v. Obrero (2022) and Barker v. Young (2023): Central to the majority’s response to the concurrence. Obrero and Barker were cited for the limits of pari materia: it is inapplicable where the statute is unambiguous on its face and cannot be used to “create doubt” in clear text.
• State v. Kalaola (2010): Cited for the substantial-evidence standard on sufficiency review—evidence must support each element, viewed in the light most favorable to the State. The court applied Kalaola and found the record lacked proof of the “in” element.
• State v. Malufau (1995): Used to bar retrial of an included offense where none is legally available after the appellate disposition. The court relied on Malufau in concluding the case could not be revived under a different privacy subsection as an “included offense.”
• State v. Kaulia (2013): Cited for the double-jeopardy consequence of an insufficiency reversal: retrial is barred. Once the court held the evidence insufficient as a matter of law, Kaulia required acquittal rather than a new trial.
• State v. Kaakimaka (2025): The court referenced its prior decision in this litigation (addressing the charging-document issue) to clarify the procedural posture and to explain why sufficiency ultimately became dispositive on the second round of certiorari.

B. Legal Reasoning

1. Text controls; the locational element is real and mandatory.

The court treated HRS § 711-1110.9(1)(a) as a locationally defined felony: the State must prove the defendant installed or used the device “in any private place,” to observe or record a person “in that place,” without consent of those entitled to privacy “therein.” The court emphasized three textual “signals” pointing to a single bounded interior location.

2. Ordinary meaning of “in” is “inside,” not “near” or “aimed at.”

Because “in” is not defined by statute, the court relied on ordinary meaning and rejected a functional, effects-based reading (i.e., “if the camera can see into the bathroom, it is ‘in’ the bathroom”). The court underscored that adopting the State’s approach would erase the statute’s locational element and effectively rewrite the legislature’s choice.

3. Statutory context confirms the interior/exterior distinction.

The court reinforced its reading by comparing neighboring privacy provisions. It highlighted that HRS § 711-1111(1)(e) expressly addresses devices used “outside a private place” to capture sounds, demonstrating the legislature knew how to legislate exterior conduct when it intended to. It also noted that HRS § 711-1111(1)(b) (peering or peeping into a window) is an “outside-the-window” offense, further suggesting the first-degree device-based felony was not drafted to cover the same spatial zone.

4. The evidence failed on the “in” element.

Applying the Kalaola sufficiency standard, the court catalogued what the State proved (attempt to record; victim in shower; defendant’s admission; matching phone), but identified the missing element: proof that the phone (or any part of the defendant) was inside the bathroom. The testimony established the phone was “outside of the glass,” and the State “never claimed otherwise.”

5. No retrial via included offenses; acquittal required.

The court rejected the notion that HRS § 711-1111(1)(d) could function as an included offense on this record because it would require proof that the event recorded was “other than another person in a stage of undress or sexual activity,” while the undisputed evidence proved the opposite. With no applicable included offense, and because reversal was for insufficiency, Malufau and Kaulia compelled finality: judgment of acquittal and no retrial.

C. Impact

Charging and proof in privacy cases: After this decision, prosecutions under HRS § 711-1110.9(1)(a) must focus on evidence that the device (or its use) occurred inside the private place (e.g., hidden camera placed inside a bathroom, bedroom, or changing area). Cases involving recording from outside through a window are not covered by this subsection as construed.

Statutory boundaries and legislative options: The court expressly acknowledged unsettling scenarios (telephoto lenses, drones, one-way mirrors, vents) but treated them as policy matters for the legislature, not occasions for judicial expansion. The likely institutional impact is to channel “outside-looking-in” fact patterns toward other existing offenses (e.g., HRS § 711-1111(1)(b)) or prompt legislative amendment if broader device-based coverage is desired.

Appellate posture and finality: The opinion is also a strong reaffirmation that insufficiency reversals end the case. Prosecutors must ensure the charged statute fits the facts, because appellate correction for insufficiency results in acquittal and double-jeopardy finality.

IV. Complex Concepts Simplified

• “Element” of an offense: A fact the State must prove to convict (here, a key element was that the device was used “in any private place”).
• Statutory interpretation (plain meaning): Courts start with the text; if it is clear, they apply it as written rather than rewrite it to reach desirable outcomes.
• Pari materia: A tool for reading related statutes together to clarify meaning. This opinion stresses it helps only when the statute being interpreted is genuinely ambiguous, not to create ambiguity.
• Substantial evidence / sufficiency review: On appeal, the court asks whether evidence—viewed favorably to the prosecution—could allow a rational jury to find each element beyond a reasonable doubt. If any element lacks proof, the conviction cannot stand.
• Included offense: A lesser offense that is proved by the same (or fewer) facts as the charged offense. If the “lesser” offense requires a different fact (here, that the victim was not in a stage of undress), it is not “included” in a way that permits retrial after an insufficiency reversal.
• Double jeopardy: A constitutional rule preventing the State from trying a defendant again after an appellate court reverses for insufficient evidence; the remedy is acquittal, not a new trial.

V. Conclusion

State v. Kaakimaka establishes a clear, location-based limit on Hawaiʻi’s first-degree privacy statute: under HRS § 711-1110.9(1)(a), the device must be installed or used inside the private place. Recording from outside a bathroom window—however invasive—does not satisfy the statute’s “in” requirement. Because the State failed to prove that essential element, the conviction was reversed for insufficient evidence, retrial was barred by double jeopardy, and the circuit court was directed to enter a judgment of acquittal.