The officers were dressed like tourists and carrying bodyboards and a hidden video camera for the special operation Nov. 26, 2006, that led to the arrests of 58-year-old Narciso Billianor Jr. and his teenage son.
At the end of his trial Monday in Lahaina District Court, Billianor was acquitted of another charge of attempted fourth-degree theft. He said his son, who was 16 years old at the time, was found not guilty of felony charges last January during a closed Family Court proceeding.
After saying he was a single parent who couldn't afford to pay a fine, Billianor was sentenced to perform 100 hours of community service. District Judge Simone Polak suspended a 10-day jail term for Billianor for one year on the condition that he have no further convictions for obstructing access to public property.
She delayed the imposition of the sentence after defense attorney Michelle Drewyer said Billianor is considering appealing his conviction.
During testimony in the case in November, Lahaina patrol officer Steven Gunderson said he and the other undercover officer were walking to the beach when Billianor called them back to a donation table set up about 30 yards from the shoreline.
After the officers said they weren't interested in making a donation, Billianor's young son called for his older teenage brother, who took a "combative" stance while blocking the way to the beach and repeatedly flicking a knife, Gunderson testified.
The officer said he felt threatened.
During the videotaped encounter, Billianor is heard telling the officers that they should go elsewhere if they don't want to make a donation because they're on his property. "If you don't like the idea, you can go somewhere else," he says at one point.
After the officers say they don't have any money on them but will return with the $5, Billianor tells them he doesn't like their attitude and asks them to leave.
But Billianor later says he doesn't care about the money and tells the officers they can go to the beach.
"In the end, he did not prevent them from going to the beach," Drewyer said. "Slow them down, maybe. Prevent them, no.
"It was their decision not to go to the beach."
But Deputy Prosecutor Kenton Werk said Billianor had already stopped the officers from reaching the beach before apparently changing his mind and saying they could go.
"Intimidation was used by his son flicking what appeared to be a knife," Werk said. "He had an elaborate story concocted to justify his actions.
"He had no authority over the land, no authority to demand a donation."
Randall Endo, vice president of community development for Maui Land & Pineapple Co., testified in November that the donation table was set up without permission on company land. He described the unpaved trail from a gate near Honoapiilani Highway as a "historical pathway" that goes downhill through vegetation and crosses Honolua Stream to a flat area near kuleana parcels by the shoreline. While there was no legal easement, Endo said the company hasn't restricted access by foot for hundreds of visitors a day who snorkel and swim at the bay.
He said Billianor was a "potential owner" of one kuleana parcel, which is the subject of a separate and pending quiet-title court action.
Drewyer said Billianor believed the property was his and was collecting donations to pay for portable toilets he arranged for to keep the area clean.
"I live down Honolua Bay," Billianor said in court Monday. "I've taken care of the property ever since my mom passed away about five months ago."
Drewyer said there was no evidence that Billianor encouraged his son's activity, which was occurring behind Billianor's back that day.
But the judge said, "There's no way Mr. Billianor could not have known."
"It is a very loud flicking," said Polak, who reviewed the videotape. "It is very apparent."
She said Billianor told the officers "five or six times that they were not going to go to the beach and even if they brought the money, they weren't going to go to the beach."
In a later portion of the video, "suddenly Mr. Billianor changes his tune," Polak said. "I don't know if he caught on to the fact that they were officers, maybe because they used certain words."
But by then, she said, "the offense has been completed."
After seeing the juvenile flicking the knife, "any reasonable person at that point probably would have lost the desire to go to the beach," Polak said.
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