State v. Alisna ( 2021 )

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
08-NOV-2021
07:52 AM
Dkt. 116 SO
NO. CAAP-XX-XXXXXXX
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.
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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.
2
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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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