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NO. CAAP-20-0000533

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

STATE OF HAWAI#I, Plaintiff-Appellee, 

v.

GABRIEL ALISNA, Defendant-Appellant 

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT

(CRIMINAL NO. 1PC131001861)

SUMMARY DISPOSITION ORDER

(By: Ginoza, Chief Judge, Leonard and Hiraoka, JJ.)

Defendant-Appellant Gabriel Alisna appeals from the

"Judgment of Conviction and Sentence" entered by the Circuit

Court of the First Circuit on July 30, 2020.1 For the reasons

explained below, we affirm the Judgment.

On December 18, 2013, Alisna was indicted by the O#ahu

grand jury on five counts of Violation of Privacy in the First

Degree in violation of Hawaii Revised Statutes (HRS) § 711-

1110.9.2 The indictment charged, in relevant part:

COUNT 1: On or about January 1, 2013, to and

including February 16, 2013, in the City and County of

Honolulu, State of Hawaii, GABRIEL ALISNA, did intentionally

or knowingly install or use, or both, in any private place,

1 The Honorable Karen T. Nakasone entered the Judgment but the

Honorable Rom A. Trader presided over Alisna's trial.

2 Alisna was also indicted on two counts of Sexual Assault in the

Fourth Degree in violation of HRS § 707-733(l)(a). Those counts were severed

for a separate trial, and were ultimately dismissed without prejudice on

May 12, 2020.

Electronically Filed

Intermediate Court of Appeals

CAAP-20-0000533

08-NOV-2021

07:52 AM

Dkt. 116 SO
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without consent of the person or persons to wit,

[complaining witness], 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 of the Hawaii Revised Statutes.

Counts 2-5 were substantially identical to Count 1, except for

the names of the complaining witnesses and the dates of the

alleged offenses.

When Alisna was indicted HRS § 711-1110.9 (Supp. 2012)

provided, in relevant part:

§ 711-1110.9 Violation of privacy in the first

degree. (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, 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.)3

Alisna worked as a teacher for Kamehameha Schools. He

lived in faculty housing on the Kapālama Campus. Alisna filed a

pretrial motion to suppress evidence. He argued that Kamehameha

Schools employees entered his residence without his permission,

removed his property (a mini-spy camera with a memory card), and

provided it to the Honolulu Police Department (HPD) as evidence

in his criminal case. The trial court denied the motion to

suppress.

Jury-waived trial began on October 1, 2018. The State

introduced evidence that Alisna video recorded three minors,

without their permission, while the minors were showering nude in

Alisna's residence. The State rested.

Alisna rested without calling any witnesses. He then

filed a motion to dismiss. He argued that Counts 1-5 failed to

allege all elements of the offense because there was no

3 The State's answering brief quotes the current version of the

statute rather than the version in effect at the time of the alleged offense.

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allegation that he was not acting "in the execution of a public

duty or as authorized by law[.]"

Alisna also made an oral motion for a judgment of

acquittal. He argued that the State failed to prove that he was

not acting "in the execution of a public duty or as authorized by

law[.]"

The trial court denied both of Alisna's motions by

order entered on November 6, 2018. The trial court ruled:

the exception that's embodied in 711-1110.9 constitutes a

defense and not an element of the offense and, therefore,

that is pivotal to the Court's ruling on both of these

motions, because if it is an element, it's required to be

alleged, it's required to be proven or disproved.

If it's a defense, then it's not required to be

alleged, and it's not required for the State to produce

evidence of that in its case in chief.

The Judgment was entered on July 30, 2020. Alisna was

found guilty as charged on Counts 1-5. He was sentenced to five

years in prison on each count, to run concurrently. This appeal

followed.

Alisna contends: (1) the trial court erroneously denied

his motion to suppress evidence; (2) the trial court erroneously

denied his motion to dismiss counts 1-5 of the indictment; and

(3) the trial court erroneously denied his motion for judgment of

acquittal.

1. The trial court did not err by denying

the motion to suppress evidence.

Alisna argues that his mini-spy camera and memory card

should have been suppressed as evidence because Kamehameha

Schools employees entered his on-campus apartment and removed

those items without his permission, in violation of his right to

be secure against unreasonable searches and seizures under the

Fourth Amendment to the United States Constitution and article I,

section 7 of the Hawai#i Constitution.

[T]he proponent of a motion to suppress has the burden of

establishing not only that the evidence sought to be

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excluded was unlawfully secured, but also, that [their] own

Fourth Amendment rights were violated by the search and

seizure sought to be challenged. The proponent of the

motion to suppress must satisfy this burden of proof by a

preponderance of the evidence.

State v. Lawson, 103 Hawai#i 11, 19, 78 P.3d 1159, 1167 (App.

2003) (quoting State v. Anderson, 84 Hawai#i 462, 467, 935 P.2d

1007, 1012 (1997)).

The purpose of the constitutional right to be secure

against unreasonable searches and seizures is "to protect

individuals against intrusions by the government." Lawson, 103

Hawai#i at 19, 78 P.3d at 1167 (quoting State v. Kahoonei, 83

Hawai#i 124, 129, 925 P.2d 294, 299 (1996)). Evidence obtained

by a private individual acting wholly on their own initiative is

properly admissible in a criminal trial. Id. There is no

bright-line rule to determine whether a private individual is

acting on their own or as a government agent; "the correct test

for determining whether a private individual is a government

agent is the 'totality of the circumstances test.'" Kahoonei, 83

Hawai#i at 130, 925 P.2d at 300.

The [Hawai#i Supreme Court] stated that under the totality

of the circumstances test, several factors may be considered

in determining whether a private individual was acting as a

police agent:

whether the private individual: (1) was actively

recruited [by the government]; (2) was directed by a

government agent; (3) acted for a private purpose; and

(4) received any payment for [their] services.

Lawson, 103 Hawai#i at 19-20, 78 P.3d at 1167-68 (first quoting

Kahoonei, 83 Hawai#i at 127, 925 P.2d at 297; and then citing

State v. Boynton, 58 Haw. 530, 537–38, 574 P.2d 1330, 1335

(1978)).

Alisna's motion to suppress was heard on May 17, 18,

and June 19, 2018. The trial court entered findings of fact,

conclusions of law, and its order denying the motion to suppress

on July 27, 2018. Alisna challenges findings of fact nos. 21,

22, and 23, and conclusions of law nos. 16, 17, 18, and 19.

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We review findings of fact under the "clearly

erroneous" standard. Lawson, 103 Hawai#i at 19, 78 P.3d at 1167. 

A finding of fact is clearly erroneous when (1) the record lacks

substantial evidence to support the finding, or (2) despite

substantial evidence in support of the finding, the appellate

court is nonetheless left with a definite and firm conviction

that a mistake has been made. Id.

The trial court found:

21. The Court finds that entry into [Alisna]'s residence

on March 7, 2014 was consistent and supported by

provisions of the lease agreement entered into by and

between [Alisna] and KS [Kamehameha Schools].

Alisna's on-campus housing agreement was in evidence as defense

exhibit E. Under this agreement, Alisna was prohibited from

using his apartment "for any unlawful or immoral purpose

whatsoever[.]" If Kamehameha Schools discovered that illegal or

immoral acts were taking place in Alisna's apartment, Kamehameha

Schools had the right to terminate Alisna's tenancy and to "take

any other reasonable action [as] necessary to stop the illegal or

immoral activity." The agreement allowed Kamehameha Schools to

enter Alisna's apartment to conduct inspections. Finding of fact

no. 21 was supported by substantial evidence and was not clearly

erroneous.

The trial court also found:

22. The Court further finds that the testimony received at

the hearing on the Motion to Suppress from KS security

officers, Clark Mills and Michael Moses, as well as

from HPD officers John Omerod and Detective Brian

Tokita, are credible.

Evaluating witness credibility is within the province of the

trial court, and will not be second-guessed on appeal. State v.

Jenkins, 93 Hawai#i 87, 103-04, 997 P.2d 13, 29-30 (2000).

Finally, the trial court found:

23. That KS security officers who searched and seized

evidence from [Alisna]'s residence were acting as

private actors employed by a private school entity.

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Alisna is bound by the following findings of fact, which he does

not contest, State v. Rodrigues, 145 Hawai#i 487, 494, 454 P.3d

428, 435 (2019):

4. On or about March 2, 2013, KS received an anonymous

report that [Alisna] secretly video recorded KS

students in the nude, while they showered at

[Alisna]'s residence. 

5. Upon receiving the above-mentioned report, KS

initiated an attorney-driven investigation of [Alisna]

independent of any police investigation. KS did not

inform HPD or any other institution of the allegation

against [Alisna] or its independent investigation of

[Alisna].

. . . .

8. On March 7, 2013, while [Alisna] attended the faculty

meeting, and at the direction of KS compliance officer

David Burge, KS security officers Clark Mills and

Michael Moses, [sic] entered [Alisna]'s residence

without notice to, or permission from, [Alisna] and

without a warrant; searched [Alisna]'s residence,

including [Alisna]'s shower; discovered, among other

things, a bracket located in the shower of [Alisna]'s

residence, a mini-spy camera equipped with a Secure

Digital ("SD") memory card that fit into the shower

bracket, and various power cords; and physically

removed the mini-spy camera with SD memory card and

accompanying power cords, among other things, from

[Alisna]'s residence.

9. KS security officers took the items seized from

[Alisna]'s residence to the KS security office,

located on the Kapalama [sic] campus.

. . . .

12. The KS security officers who entered [Alisna]'s

residence were not employed or otherwise contracted by

HPD or any other governmental agency.

. . . .

14. KS security officers Mills and Moses did not receive

any compensation from HPD or any other law enforcement

agency for the search of [Alisna]'s residence.

These uncontested facts support finding of fact no. 23, which was

not clearly erroneous.

Alisna also challenges conclusions of law nos. 16, 17,

18 and 19. The trial court's conclusions of law are reviewed

under the right/wrong standard. Lawson, 103 Hawai#i at 19, 78

P.3d at 1167. A conclusion of law that is supported by the trial

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court's findings of fact and reflects an application of the

correct rule of law will not be overturned. Est. of Klink ex

rel. Klink v. State, 113 Hawai#i 332, 351, 152 P.3d 504, 523

(2007). 

The trial court concluded:

16. . . . For the following reasons, the court concludes

that the March 7, 2013 search and seizure was a

private search, not subject to the constitutional

restraints set forth in the Fourth Amendment to the

United States Constitution and Article I, Section 7 of

the Hawaii [sic] State Constitution, and the

exclusionary rule does not preclude the State from

using evidence recovered as a result of the March 7,

2013 search and seizure:

a. It is undisputed that KS security officers

are not employed, or otherwise contracted

by HPD or any other governmental agency.

b. It is undisputed that KS is a private

educational institution and employs its

own security personnel.

c. KS has a responsibility to act with the

best interest of the minor students who

attend its school.

d. KS security officers are not law

enforcement officers. They do not have

the authority to effectuate an arrest, nor

are they charged with the responsibility

of enforcing the laws of the State of

Hawaii [sic].

e. KS did not report the anonymous tip to

police authorities at the time it was

received, which indicates that KS was not

motivated by law enforcement purposes.

f. The security personnel involved in the

search were not "actively" or inactively

"recruited" by the police or any other

governmental agency. On the contrary, KS

security officers were acting as private

individuals presumably, at the behest of

their employer, KS. Furthermore, the

security officers were not paid by the

government to conduct the search and the

[sic] received no enumeration [sic] for

this search by police.

g. KS security was not "specifically

directed" by HPD. In fact, HPD was not

aware of the search being conducted by KS,

nor was it aware of the anonymous

complaint made to KS officials that

[Alisna] had secretly been recording

students in the shower of [Alisna]'s

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residence. Furthermore, HPD was not

present when the search was executed on

March 7, 2013, nor did KS request HPD's

presence during the search. KS did not

contact HPD until March 8, 2013, one day

after the search had already been

completed and evidence seized by KS. No

evidence, save for Moses's written

statement, was turned over to Officer

Omerod during his initial investigation of

[Alisna] on March 8, 2013.

h. Prior to the March 7, 2013 search and

seizure, [Alisna] entered into a lease

agreement with KS and was residing in

faculty on-campus housing provided to him

by KS. Under the terms of [the] lease

agreement, KS security was authorized to:

(1) enter [Alisna]'s residence, (2)

immediately terminate the lease agreement,

and (3) take any reasonable action to stop

any illegal or immoral activity. KS

security officers entered [Alisna]'s

residence in a manner consistent with the

lease agreement.

i. That the motivation of KS security

officers to enter into [Alisna]'s

residence, whether proper or not, under

the lease agreement entered into by and

between KS and [Alisna], is irrelevant

given that the security officers were not

acting as law enforcement or agents of law

enforcement.

The factual premises for conclusion of law no. 16 are supported

by substantial evidence in the record. Conclusion of law no. 16

reflects the proper application of the Kahoonei "totality of the

circumstances test."

The trial court also concluded:

17. . . . [Alisna] relies on State v. Bowe, 77 Haw. Hawaii

[sic] 51 (1994), which stands for the proposition that

the State cannot use a statement that is deemed

involuntary when provided under the undue influence of

a private person. For the following reasons, the

court concludes that the March 7, 2013 search and

seizure did not rise to the level of a

constitutionally invalid infringement of [Alisna]'s

right to privacy under Article I, Section 7 of the

Hawaii [sic] State Constitution:

a. Bowe is distinguishable from the present case in

several, important ways. First, Bowe involved a

statement that later deemed by the appellate

court to be "involuntary" and thus suppressed

under Article I, Section 10 of the Hawaii [sic]

State Constitution and State v. Kelekolio, 74

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Haw. 479 (1993). Unlike Bowe, [Alisna] is not

seeking suppression of any statement he may have

provided. Second, in Bowe, the police contacted

the basketball head coach to make arrangements

to have certain members of the team, to include

Bowe, appear at the police station for purposes

of providing a statement. Here, unlike in Bowe,

the police were contacted after the March 7,

2013 search and seizure. Third, unlike in Bowe,

there is no evidence of [Alisna] being coerced

to allow KS into his residence for purposes of a

search. Accordingly, Bowe is not applicable.

(Handwriting in italics.) The trial court correctly

distinguished Bowe; conclusion no. 17 was not wrong.

The trial court also concluded:

18. During the June 19, 2018 motion hearing, the Court

observed:

Although there was some interaction between KS

and law enforcement at some point, there was

nothing that rose to the level such that they,

meaning KS security staff, could be viewed by

this Court as agents of law enforcement. There

was no prior discussion before they began their

investigation, there was no sharing of

information, there was no request for direction,

instruction, there was absolutely

nothing--certainly there was no payment or

reward or anything like that which some of the

cases speak about.

The factual premises for conclusion of law no. 18 are supported

by substantial evidence in the record; conclusion of law no. 18

reflects the proper application of the Kahoonei "totality of the

circumstances test." Conclusion of law no. 18 was not wrong.

Finally, the trial court concluded:

19. In light of the above, and based upon applicable

statutory and legal authority, the court properly

denies [Alisna]'s December 12, 2016 Motion to Suppress

Evidence on both the constitutional and statutory

claims raised by [Alisna].

Conclusion of law no. 19 is supported by the trial court's

findings of fact and reflects an application of the correct rule

of law. It was not wrong.

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2. The trial court did not abuse its

discretion by denying the motion to

dismiss.

"A trial court's ruling on a motion to dismiss an

indictment is reviewed for an abuse of discretion." State v.

Deguair, 136 Hawai#i 71, 84, 358 P.3d 43, 56 (2015) (citation

omitted). "The trial court abuses its discretion when it clearly

exceeds the bounds of reason or disregards rules or principles of

law or practice to the substantial detriment of a party

litigant." Id. (citation omitted). "The burden of establishing

abuse of discretion is on appellant, and a strong showing is

required to establish it." Id. at 84–85, 358 P.3d at 56–57.

Alisna contends that counts 1-5 of the indictment

should have been dismissed because the State failed to allege

that Alisna was not acting "in the execution of a public duty or

as authorized by law[.]" However, HRS § 806-29 (1993) provides:

§ 806-29 Exceptions need not be negatived. No

indictment for any offense created or defined by statute

shall be deemed objectionable for the reason that it fails

to negative any exception, excuse, or proviso contained in

the statute creating or defining the offense. The fact that

the charge is made shall be considered as an allegation that

no legal excuse for the doing of the act existed in a

particular case.

HRS § 806-29 "specifically provides that an indictment

is not required to negate exceptions set forth in the statute

establishing the offense." State v. Turping, 136 Hawai#i 333,

335, 361 P.3d 1236, 1238 (App. 2015) (citing HRS § 806-29

(2014))4. Thus, the State was not required to allege that Alisna

was not acting "in the execution of a public duty or as

authorized by law" in counts 1-5 of the indictment. Contrary to

Alisna's contentions, findings of fact nos. 9 and 11 in the

November 6, 2018 order were supported by substantial evidence and

were not clearly erroneous; conclusions of law nos. 3, 9, and

11-18 were supported by the trial court's findings of fact and

4 The 2014 version and 1993 version of HRS § 806-29 are identical

because the statute has not been amended since 1972.

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reflect an application of the correct rules of law. The trial

court did not abuse its discretion by denying Alisna's motion to

dismiss.

3. The trial court did not err by denying

the motion for judgment of acquittal.

We review the trial court's ruling on a motion for

judgment of acquittal de novo using the same standard as the

trial court. See State v. Carroll, 146 Hawai#i 138, 150, 456 P.3d

502, 514 (2020). The standard applied by a trial court in ruling

upon a motion for a judgment of acquittal is whether, viewing the

evidence in the light most favorable to the prosecution, a trier

of fact could fairly conclude that the defendant was guilty

beyond a reasonable doubt. Id.

Alisna's motion for judgment of acquittal argued that

the State failed to prove he was not acting "in the execution of

a public duty or as authorized by law[.]" In response, the State

argued that the exception was "not a material element for [sic]

which the State must prove beyond a reasonable doubt." The trial

court agreed with the State:

[T]he Court's going to rule that the exception that's

embodied in 711-1110.9 constitutes a defense and not an

element of the offense and, therefore, that is pivotal to

the Court's ruling on both of these motions, because if it

is an element, it's required to be alleged, it's required to

be proven or disproved.

If it's a defense, then it's not required . . . for

the State to produce evidence of that in its case in chief.

. . . . 

And notwithstanding the fact that there's complete

lack of evidence with regard to disproving the exception,

that [sic] that's not fatal in this particular case to the

State. 

The Hawai#i Supreme Court's recent decision in State v.

Castillon, 144 Hawai#i 406, 443 P.3d 98 (2019) is dispositive. In

that case Castillon was convicted of driving without a license

(DWOL). The DWOL statute at issue, HRS § 286-102(a) (2007),

provided that "No person, except one exempted under section 286-

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105 . . . shall operate any category of motor vehicles listed in

this section without first being appropriately examined and duly

licensed as a qualified driver of that category of motor

vehicles." (Emphasis added.) HRS § 286-105 (2007) provided that

persons possessing a valid driver's license issued by Canada, or

a valid commercial driver's license issued by Canada or Mexico,

were "exempt from license[.]"

Castillon contended that the State had the burden to

prove she did not have a valid driver's license issued by Canada,

or a valid commercial driver's license issued by Canada or

Mexico, and failed to present any evidence on that essential

element of DWOL. The supreme court disagreed. Citing HRS § 701-

115(a), the supreme court stated that "a fact or set of facts

which negatives penal liability" is a defense. Id. at 411, 443

P.3d at 103. The supreme court then held:

Here, if Castillon had introduced "some evidence"[5] that she

possessed a valid driver's license in Canada or a valid

commercial driver's license in Canada or Mexico, the burden

would shift to the State to introduce evidence disproving

her defense.

Therefore, we concur with the ICA's conclusion that

the exemptions referenced in HRS § 286-102(a) and described

in HRS § 286-105 are defenses to the offense of DWOL, for

which Castillon bore the initial burden of production. We

make this determination irrespective of whether Castillon

had knowledge or private control over facts establishing

that she had a valid driver's license in Canada or Mexico. 

Because she did not produce "some evidence" that she

possessed a valid driver's license that would qualify her

for exemption, as set forth in HRS § 286-105, the burden did

not shift to the State.

Id. at 412, 443 P.3d at 104.

Similarly, in this case evidence that Alisna acted "in

the execution of a public duty or as authorized by law" when he

secretly recorded students showering in the nude would negative

penal liability under HRS § 701-1110.9. Under HRS § 701-115(a),

5 "'Some evidence' is 'such evidence [that] would support the

consideration of that issue by the jury, no matter how weak, inconclusive, or

unsatisfactory the evidence may be.'" Castillon, 144 Hawai#i at 411 n.9, 443

P.3d at 103 n.9 (quoting State v. Maelega, 80 Hawai#i 172, 178–79, 907 P.2d

758, 764–65 (1995)) (other citations omitted).

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that set of facts would be a defense, for which Alisna bore the

burden of production. Alisna introduced no evidence that he

acted in the execution of a public duty or as authorized by law. 

Thus, the burden never shifted to the State to introduce evidence

disproving the defense. Castillon, 144 Hawai#i at 411-12, 443

P.3d at 103-04; cf. State v. Romano, 114 Hawai#i 1, 6, 155 P.3d

1102, 1107 (2007) (holding statutory exception was a defense);

State v. Jenkins, 93 Hawai#i 87, 107, 997 P.2d 13, 33 (2000)

(same); State v. Lee, 90 Hawai#i 130, 138, 976 P.2d 444, 452

(1999) (same); State v. Bowman, 135 Hawai#i 180, 187, 346 P.3d

249, 256 (App. 2015) (same), rev'd on other grounds, 137 Hawai#i

398, 375 P.3d 177 (2016); Turping, 136 Hawai#i at 336-37, 361 P.3d

at 1239-40 (same); State v. Nobriga, 10 Haw. App. 353, 359, 873

P.2d 110, 113 (1994) (same), overruled on other grounds by State

v. Maelega, 80 Hawai#i 172, 907 P.2d 758 (1995). Findings of fact

nos. 9 and 11 in the November 6, 2018 order were supported by

substantial evidence and were not clearly erroneous; conclusions

of law nos. 3, 9, and 11-18 were supported by the trial court's

findings of fact and reflect an application of the correct rules

of law.

For the foregoing reasons, the "Judgment of Conviction

and Sentence" entered by the circuit court on July 30, 2020, is

affirmed.

DATED: Honolulu, Hawai#i, November 8, 2021.

On the briefs:

/s/ Lisa M. Ginoza

Keith S. Shigetomi, Chief Judge

for Defendant-Appellant.

/s/ Katherine G. Leonard

Brian R. Vincent, Associate Judge

Deputy Prosecuting Attorney,

City and County of Honolulu, /s/ Keith K. Hiraoka

for Plaintiff-Appellee. Associate Judge

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