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State v. Pitolo

Intermediate Court of Appeals of Hawaii

October 30, 2017

STATE OF HAWAI'I, Plaintiff -Appellant,
v.
LAURA PITOLO, Defendant-Appellee

         APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT (CR. NO. 15-1-0407)

          Michael Kagami, Deputy Attorney General, for Plaintiff-Appellant.

          Taryn R. Tomasa, Deputy Public Defender, for Defendant-Appellee.

          FUJISE, PRESIDING JUDGE, LEONARD AND REIFURTH, JJ.

          OPINION

          LEONARD, J.

         Plaintiff-Appellant State of Hawai'i (State) appeals from the Findings of Fact, Conclusions of Law, and Order Granting Defendant-[Appellee] Laura Pitolo's (Pitolo) Motion to Dismiss Felony Information With Prejudice (Dismissal Order), filed on April 25, 2016, in the Circuit Court of the First Circuit (Circuit Court).[1]

         We hold, inter alia, that: (1) the State properly-exercised its prosecutorial discretion in charging Pitolo with multiple offenses, even though several of the offenses were charged as similar continuing-course-of-conduct crimes and the charges overlapped in time; (2) each count of a felony-information constitutes a separate offense for the purpose of determining "the earliest date of the discovery of the offense" for the purpose of determining the extended statute of limitations pursuant to Hawaii Revised Statutes (HRS) § 701-108(3)(a); (3) to the extent that the Circuit Court, in effect, treated all six counts charged against Pitolo as a single "offense" for the purpose of determining "the earliest date of the discovery of the offense" in its application of HRS § 701-108(3) (a), it erred in doing so; and (4) while it is permissible to charge and prove an offense covering any part of the time span of a continuing crime, and the State was free to do so in this case, it is not permissible to disregard discovered conduct that is (a) indisputably part of the continuing course of conduct, as charged, and (b) that occurred within the charged period, in order to avoid the running of the statute of limitations. We affirm in part, vacate in part, and remand.

         I. BACKGROUND

         The Wai'anae Community Outreach (WCO) is a not-for-profit community organization that provides services to the homeless population on the leeward coast of O'ahu. WCO relies, in significant part, on funding from the State through the Department of Human Services (DHS). Pitolo was employed at WCO as a program manager until she left the organization in May of 2010.

         On August 7, 2010, then WCO Executive Director Sophina Placencia (Placencia) filed a police report with the Honolulu Police Department (HPD). HPD Officer Robert King reported that during his interview with Placencia, Placencia relayed to him that, on May 27, 2010, she discovered evidence of theft from a WCO bank account after Pitolo abruptly quit her job. Placencia explained that she discovered a number of suspicious checks when reviewing the WCO's bank account records. Some of the checks were made out to "cash, " others were made out to Pitolo's father, Pulouoleola Salausa (Salausa or Pitolo's Father), and some were written to Pitolo herself. Although Pitolo was authorized to write checks, both Placencia and Pitolo were required to sign them; only Pitolo had signed the suspicious checks. Pitolo did not have permission to write checks to herself. Placencia further reported that between May 27, 2010, and July 7, 2010, Pitolo had written eight additional checks from three of WCO's bank accounts.[2] Attached to the police report, along with Placencia1s handwritten statement, there was also a withdrawal slip for $1, 134.00 from a WCO Bank of Hawai'i account, dated June 16, 2010, which was signed by Pitolo.

         HPD Detective Greg Bentosino filed a report, last updated on December 30, 2010, which shows that on August 16, 2010, Placencia supplemented the original police report by reporting another twenty-nine unauthorized transactions from a WCO American Savings Bank account that allegedly occurred between September 4, 2009, and February 25, 2010, which brought the total number of unauthorized checks reported to HPD to thirty-seven. The checks were written out to Pitolo, Jamye Windsor (a co-worker) (Windsor), WCO, Salausa, Leipaoa Salausa (Pitolo's Sister), and "Cash." Detective Bentosino's report noted that "[a]ttempts to contact Leipaoa Salausa, Pulouoleola Salausa, and Pitolo to schedule interviews with them have been unsuccessful." HPD took no further investigative action.

         On July 25, 2013, WCO filed a civil complaint (Complaint) against Pitolo in the Circuit Court (Civil No. 13-1-2050-07), alleging that Pitolo had converted approximately $762, 046.25 of WCO's monies for Pitolo's own use through cash withdrawals, debit purchases using WCO's debit card, and checks written to herself and to family members and friends. In the Complaint, WCO alleged that between 2007 and 2010, Pitolo issued monies through unauthorized checks totaling $60, 844.60 to Windsor, $169, 215.00 to Pitolo's Father, and $141, 190.87 to herself. The Complaint further alleged that Pitolo made unauthorized cash withdrawals totaling $390, 795.78.

         On September 5, 2013, after WCO filed the Complaint against Pitolo, the DHS began an investigation and an audit of WCO. On November 13, 2013, after the allegations against Pitolo became publicized through news broadcasts, the Office of the Attorney General (AG) began an investigation into the financial practices of WCO; Chief Special Agent Daniel Hanagami was assigned to conduct the AG investigation. The AG investigation took over the DHS investigation and all records and documents in the possession of the DHS were turned over to the AG. During its investigation, the AG located numerous additional alleged unauthorized transactions, which had not been specified in the original police report or the supplement filed by Placencia in 2010.

         On March 17, 2015, the State charged Pitolo by Felony Information with five counts of Theft in the First Degree, in violation of HRS §§ 708-830(2) (2014)[3] and 708-830.5 (1) (a) (2014), [4] as follows:

COUNT 1: On or between February 13, 2009 and July 16, 2010, in a continuing course of conduct, in the City and County of Honolulu, State of Hawaii, [PITOLO] did obtain or exert control over the property of the [STATE] and/or [WCO] by deception, with intent to deprive the [STATE] and/or [WCO] of the property, by writing unauthorized checks to [WINDSOR], the value of which exceeded $20, 000, thereby committing the offense of THEFT IN THE FIRST DEGREE in violation of Sections 708-830(2) &. 708-830 .5 (1) (a), [HRS].
The State further alleges that the earliest date of the discovery of the offense by the [State] or by a person who has a legal duty to represent the [State] and who was not a party to the offense was after September 5, 2013.
COUNT 2: On or between December 8, 2008, and April 16, 2010, in a continuing course of conduct, in the City and County of Honolulu, State of Hawaii, [PITOLO] did obtain or exert control over the property of the [STATE] and/or [WCO] by deception, with intent to deprive the [STATE] and/or [WCO] of the property, by writing unauthorized checks to [PITOLO'S FATHER], the value of which exceeded $20, 000, thereby committing the offense of THEFT IN THE FIRST DEGREE in violation of Sections 708-830(2) & 708-830.5 (1) (a), [HRS].
The State further alleges that the earliest date of the discovery of the offense by the [State] or by a person who has a legal duty to represent the [State] and who was not a party to the offense was after September 5, 2013.
COUNT 3: On or between March 16, 2007, and July 6, 2010, in a continuing course of conduct, in the City and County of Honolulu, State of Hawaii, [PITOLO] did obtain or exert control over the property of the [STATE] and/or [WCO] by deception, with intent to deprive the [STATE] and/or [WCO] of the property, by writing unauthorized checks to herself, the value of which exceeded $20, 000, thereby committing the offense of THEFT IN THE FIRST DEGREE in violation of Sections 708- 830(2) & 708-830.5(1) (a), [HRS].
The State further alleges that the earliest date of the discovery of the offense by the [State] or by a person who has a legal duty to represent the [State] and who was not a party to the offense was after September 5, 2013.
COUNT 4: On or between December 27, 2007, and May 26, 2010, in a continuing course of conduct, in the City and County of Honolulu, State of Hawaii, [PITOLO] did obtain or exert control over the property of the [STATE] and/or [WCO] by deception, with intent to deprive the [STATE] and/or [WCO] of the property, by making unauthorized ATM cash withdrawals, the value of which exceeded $20, 000, thereby committing the offense of THEFT IN THE FIRST DEGREE in violation of Sections 708-830(2) & 708-830.5 (1) (a), [HRS].
The State further alleges that the earliest date of the discovery of the offense by the [State] or by a person who has a legal duty to represent the [State] and who was not a party to the offense was after September 5, 2013.
COUNT 5: On or between January 14, 2008, and June 2, 2009, in a continuing course of conduct, in the City and County of Honolulu, State of Hawaii, [PITOLO] did obtain or exert control over the property of the [STATE] and/or [WCO] by deception, with intent to deprive the [STATE] and/or [WCO] of the property, by making unauthorized debit transactions, the value of which exceeded $20, 000, thereby -committing the offense of THEFT IN THE FIRST DEGREE in violation of Sections 708-830(2) & 708-830.5(1)(a), [HRS].
The State further alleges that the earliest date of the discovery of the offense by the [State] or by a person who has a legal duty to represent the [State] and who was not a party to the offense was after September 5, 2013.

         The Felony Information also charged Pitolo with one count of Theft in the Second Degree, in violation of HRS §§ 708- 830(2) and 708-831(1) (b) ' (2014), [5] as follows:

COUNT 6: On or about May 10, 2010, in the City and County of Honolulu, State of Hawaii, [PITOLO] did obtain or exert control over the property of the [STATE] and/or [WCO] by deception, with intent to deprive the [STATE] and/or [WCO] of the property, by writing an unauthorized check to YOUNG HO SIM, the value of which exceeded $3 00, thereby committing the offense of THEFT IN THE SECOND DEGREE in violation of Sections 708-830(2) & 708-831 (1) (b), [HRS].
The State further alleges that the earliest date of the discovery of the offense by the [State] or by a person who has a legal duty to represent the [State] and who was not a party to the offense was after September 5, 2013.

         On January 12, 2016, Pitolo filed the Motion to Dismiss Felony Information With Prejudice (Motion to Dismiss) pursuant to, inter alia, HRS §§ 701-108, 701-114, 806-34, and 806-86, and Hawai'i Rules of Penal Procedure (HRPP) Rule 12. The Motion to Dismiss was based on "the State's failure to comply with the Statute of Limitations, " "the untimely filing of criminal charges against the Defendant, " and "the State's failure to accurately state the date of the earliest discovery of the alleged offenses in the Felony Information filed on March 17, 2015." The motion was supported by a Declaration of Counsel and a Memorandum of Law contending that the "date of discovery, " for the purpose of calculating the expiration of the statute of limitations in this case under HRS §§ 701-108 (2) (d) and 701-108 (3) (a) (2014), was May 2010. Attached to the Motion to Dismiss as exhibits were the Placencia police reports, along with the civil complaint filed against Pitolo by WCO.

         In the State's response to the Motion to Dismiss, the State conceded that thirty-seven transactions were discovered in 2010 and that HRS § 701-108 bars the State from prosecuting those transactions. The State asserted, however, that although fifteen of the previously discovered thirty-seven transactions were associated with Counts 1, 2, and 3, those particular transactions were not charged in the Felony Information, as stated in the sealed affidavit supporting the Felony Information. The State contended that these other transactions were not discovered until after September 5, 2013.

         On March 22, 2016, the Circuit Court held a hearing on the Motion to Dismiss and, after the arguments of counsel, announced its ruling. Essentially, the court concluded that the earliest date of discovery of a criminal scheme by an aggrieved party was May 27, 2010, and certainly no later than August 7, 2010, and that the Felony Information was filed beyond the applicable statute of limitations.

         On April 25, 2016, the Circuit Court entered the Dismissal Order concluding, inter alia, that the applicable statute of limitations in this case is governed by HRS §§ 701- 108(2) (d) and 701-108 (3) (a) . The Circuit Court's Conclusions of Law (COLs) also stated:

2. The applicable discovery date of the alleged thefts is either May 27, 2010 but no later than August 7, 2010. Therefore, the applicable statute of limitations expired on either May 27, 2013 or August 7, 2013.
3. Both the [WCO] and the [State] are aggrieved parties for purposes of the extension of time allowed for purposes of calculating the applicable statute of limitations under [HRS] Section 701-108(3)(a).
4. The court concludes that the discovery of the offense refers to the criminal scheme in this case, as opposed to the individual transactions or specific individual criminal acts alleged, and is governed by [HRS] Section 701-108(3)(a).
5. The statute of limitations begins when either the aggrieved party or a person who has a duty to represent the aggrieved party and was not a party to the offense discovers the criminal scheme. State v. Stan's Contracting, Inc., 111 Hawaii 17, 35 (2006).
6. The alleged conduct that serves as the basis for all 6 Counts of the Felony Information filed in the instant case ...

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