HSC continues to clarify when the State has to include statutory definitions in the charging document.

 State v. Kaakimaka (HSC August 28, 2025). The prosecution charged Koa Kaakimaka with invasion of privacy in the first degree in violation of HRS § 711-1110.9(1)(a). A person commits that offense when:

 

[T]he 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[.]

 

Id. A “private place” is “a place where one may reasonably expect to be safe from casual or hostile intrusion or surveillance, but does not include a place to which the public or substantial group thereof has access.” HRS § 711-1100.

 

The indictment against Kaakimaka did not include the statutory definition so he moved to dismiss it. He argued that the term “private place” could mean many different things. He also moved to suppress evidence. The circuit court denied the motion to dismiss. He was tried, convicted, and appealed.

 

The ICA vacated the conviction and two judges—Judge Wadsworth and Judge Hiraoka—ruled that the indictment was deficient. Judge Guidry dissented. The State petitioned for a writ of certiorari.

 

The two constitutional principles at work when challenging the sufficiency of a charging document. There are two constitutional rights in the State constitution governing the sufficiency of a criminal charging instrument: the Due Process Clause under Article I, Section 5, and the right to be informed of the nature and cause of the accusation in Article I, Section 14. State v. Van Blyenburg, 152 Hawaii 66, 74, 520 P.3d 264, 272 (2022). See also U.S. Const. Am. V and Am. IX.

 

A charge is deemed sufficient when (1) it contains the elements of the offense; and (2) sufficiently apprises defendants of what they must be prepared to meet. State v. Kauhane, 145 Hawaii 362, 369-70, 452 P.3d 359, 366-67 (2019).

 

The charge needs to include every element of the offense. Determining the elements of the offense comes from a review of the charging instrument. State v. Wheeler, 121 Hawaii 383, 395, 219 P.3d 1170, 1182 (2009). Sometimes, when the charge “tracks an offense’s statutory language, then the State [does not] need to load it with definitions of words defined elsewhere.” State v. Garcia, 152 Hawaii 3, 8, 518 P.3d 1153, 1158 (2022). But when a statutory definition or term creates an additional element, the term must be included in the charging instrument. State v. Wheeler, 121 Hawaii at 393, 219 P.3d at 1180.

 

According to the HSC, a statutory definition “creates an additional essential element of the offense, and the term itself does not provide a person of common understanding with fair notice of that element.” It did go through the examples in which it did. Wheeler; Kahuane. And when it did not. State v. Aquino, 154 Hawaii 388, 550 P.3d 1246 (2024). The HSC did specify a test in Wheeler though: a term creates an element when it creates a term that departs from the “common understanding” or ordinary meaning of the word.

 

The charge must be specific enough to notify the defendant of the nature and cause of the accusation. The other constitutional provision requires the prosecution to sufficiently notify the defendant of the nature and cause of the accusation. So even if all of the elements are there, a “generic term” needs to “descend into particulars.” State v. Jardine, 151 Hawaii 96, 100, 508 P.3d 1182, 1186 (2022). A term is “generic” when it “relates to or is characteristic of a whole group or class.” Id.

 

In Jardine, the term “substantial bodily injury” was generic because it covered five distinct classes of injuries and the prosecution needed to specify which one. Id. at 100-01, 508 P.3d at 1186-87. In State v. Israel, 78 Hawaii 66, 890 P.2d 303 (1995), the defendant was charged with using a firearm in the commission of a felony. Id. at 68, 890 P.2d at 305. The term “felony” was generic and the charge had to specify which felony. Id. at 70, 890 P.2d at 307.

 

But this constitutional challenge is not confined to the charging instrument. The court can look to “other information in addition to the charge that may have been provided to the defendant during the course of the case up until the time [the] defendant objected to the sufficiency of the charge.” State v. Wheeler, 121 Hawaii at 396, 219 P.3d at 1183. See also State v. Israel, 78 Hawaii at 71, 890 P.2d at 308. As the HSC summarized it: “as long as the elements are alleged in a charge, all other information provided to a defendant before the motion to dismiss can be considered to assess if the defendant was informed of the nature and cause of the accusation.”

 

The HSC applied both challenges and found no constitutional violation. The turned to the elements of the offense. A “private place” is an attendant circumstance to the offense. HRS § 711-1110.9(1)(a). A “private place” is “a place where one may reasonably expect to be safe from casual or hostile intrusion or surveillance, but does not include a place to which the public or a substantial group thereof has access.” HRS § 711-1100. This definition, according to the HSC, provided a person of common understanding with fair notice of the attendant circumstances consistent with the statutory definition of “private place.” It does not create an additional element. Nor is it a generic term requiring more specifics. According to the HSC, it is not among of class of locations akin to types of injuries for a “substantial bodily injury” like in Jardine or offenses for a “felony” in Israel.

 

Lastly, based on the information given to the defendant at the time of the motion, there was enough to put Kaakimaka on notice of the alleged “private place.” The HSC examined the record and based on evidence from the voluntariness hearing and the motion to suppress, there was enough information to show that he was on notice. The HSC vacated the ICA’s judgment and remanded it back to the appellate court to resolve the other issues on appeal.