WAILUKU - An appeals court has reversed a Lahaina man's conviction for obstructing access to public property at Honolua Bay in 2006.
In its April 21 order, the state Intermediate Court of Appeals said the issue was whether a pathway used by the public to reach the bay was a public right of way.
According to testimony during his trial, 59-year-old Narciso Billianor Jr. at first told two undercover Maui police officers that they couldn't go to the beach unless they paid a $5 donation. The officers were carrying bodyboards and posing as tourists. Later in the videotaped encounter, Billianor told the officers he didn't care about the money and they could go to the beach.
Police set up the sting operation Nov. 26, 2006, to investigate reports of "extortion activity" at the popular West Maui snorkeling and bodyboarding spot.
Lahaina District Judge Simone C. Polak acquitted Billianor of attempted fourth-degree theft and found him guilty of obstructing access to public property, a violation, on Jan. 28, 2008.
He was ordered to perform 100 hours of community service, but the sentence was stayed while he appealed the conviction.
"While the District Court concluded that Billianor did prevent members of the public from traversing a public right of way, the state concedes that there was no evidence that the pathway was a public right of way and requests that Billianor's conviction be reversed," according to the Intermediate Court of Appeals order.
The order said, "It appears the evidence was undisputed that the pathway was the private property of Maui Land & Pineapple Company Inc. and not a public right of way."
Attorney Michelle Drewyer, who represented Billianor, said she and the defendant were pleased with the order reversing his conviction.
"Testimony at trial was really clear - it was privately owned and no easements have been granted to any government entity," she said. "The statute only pertains to public right of way. It's a civil case, not a criminal case. Jurisdiction didn't lie with the criminal courts."
Billianor had set up a donation table about 30 yards from the shoreline. He said he was collecting money to pay for portable toilets, which he had arranged for, to keep the area clean.
He is among those who have claimed an interest in the land, which is the subject of a separate, pending quiet-title court action.
Billianor's son, who was 16 years old at the time, also was arrested after allegedly flicking a knife while blocking the way to the beach. Family members said the boy was acquitted of felony charges during a closed Family Court proceeding.
* Lila Fujimoto can be reached at firstname.lastname@example.org.