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State v. Pitolo

Supreme Court of Hawaii

March 18, 2019

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

          CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CAAP-16-0000413; CR. NO. 15-1-0407)

          John M. Tonaki, Darcia Forester, and Taryn R. Tomasa, for petitioner

          Douglas S. Chin and Michael S. Kagami, for respondent

          RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON JJ.

          OPINION

          MCKENNA, J.

         I. Introduction

         This case arises out of the Circuit Court of the First Circuit's ("circuit court")[1] dismissal of criminal charges based on the statute of limitations. Section 701-108(3)(a) of the Hawai'i Revised Statutes ("HRS") enables prosecution to be commenced "within three years after discovery of the offense by an aggrieved party or by a person who has a legal duty to represent an aggrieved party and who is oneself not a party to the offense," despite the expiration of the statute of limitations if the charged offense contains an element of "fraud, deception . . . or a breach of fiduciary obligation[.]"[2]

         The circuit court dismissed all six counts of theft filed by the State of Hawai'i ("State") against Laura Pitolo ("Pitolo") on the grounds that the March 17, 2015 felony information was filed after any extension of the three-year statute of limitations based on HRS § 701-108(3)(a) had expired. After the State appealed, in a published opinion, the Intermediate Court of Appeals ("ICA") reinstated Counts 4, 5, and 6. State v. Pitolo, 141 Hawai'i 131, 406 P.3d 354 (App. 2017). Pitolo seeks certiorari review of the ICA's reinstatement of those counts.

         We hold that the ICA did not err by reinstating Counts 4 through 6 because there are questions of fact regarding the statute of limitations applicable to those counts that must be determined by the factfinder, the jury, and the circuit court therefore erred by dismissing these charges. As factual issues exist, however, the ICA erred by ruling that the earliest date of the "discovery of [Counts 4 through 6] by an aggrieved party or by a person who has a legal duty to represent an aggrieved party and who is oneself not a party to the offense" under HRS § 701-108(3)(a) was the State Department of Human Services' ("DHS") September 5, 2013 commencement of an investigation regarding the allegations. Pitolo, 141 Hawai'i at 143, 406 P.3d at 366.

         II. Background

         A. Factual Background

         Pitolo is a former employee of Waianae Community Outreach ("WCO"), a non-profit organization funded in part by DHS to provide services to houseless people of O'ahu's Leeward Coast. Pitolo left her position with WCO in early May 2010.

         WCO Executive Director Sophina Placencia ("Placencia") allegedly then discovered some questionable checks written by Pitolo on WCO funds on May 27, 2010. Placencia filed a report with the Honolulu Police Department ("HPD") on August 7, 2010, accusing Pitolo of theft from WCO. Placencia alleged she had discovered eight unauthorized checks written by Pitolo. On August 16, 2010, Placencia reported to HPD an additional twenty-nine unauthorized checks allegedly written by Pitolo. These thirty-seven checks included checks allegedly written by Pitolo to herself, to her friend and co-worker, Jayme Windsor, [3] and to her father, Pulouoleola Salausa.

         HPD did not further investigate the allegations against Pitolo, allegedly because of an inability to locate the individuals that were allegedly also involved and based on an alleged "failure to obtain additional documents from Ms. Placencia." As it turns out, Placencia, who reported Pitolo's alleged theft from WCO, had herself stolen WCO funds for personal use from 2007 to 2013.[4]

         Almost three years later, on July 25, 2013, WCO filed a civil complaint against Pitolo, alleging that, during the course of Pitolo's employment with WCO, Pitolo made various unauthorized transactions totaling approximately $762, 046.25. WCO's complaint asserted that from 2007 to 2010, Pitolo converted WCO funds to her own use through ATM cash withdrawals, debit purchases using WCO's debit card, and by writing checks from WCO's bank accounts to herself as well as friends and family members, who cashed the checks for Pitolo at a local bank and then shared the funds with her.[5]

         After the filing of the civil lawsuit, DHS began an investigation and audit of WCO's finances and accounting practices on September 5, 2013. After Department of the Attorney General ("DAG") Chief Special Agent Daniel Hanagami ("Hanagami") became aware of a news broadcast regarding the allegations against Pitolo, DAG began an investigation into WCO's financial practices on November 13, 2013. Shortly thereafter, DAG investigators took over the investigation from DHS and obtained all relevant records and documents in DHS's possession. During its investigation, DAG discovered additional alleged unauthorized transactions not specified in Placencia's 2010 police reports.

         B. Circuit Court Proceedings

         1. Felony Information

         On March 17, 2015, DAG filed the felony information that is the subject of this appeal, charging Pitolo with five counts ("Counts 1 through 5") of Theft in the First Degree, in violation of HRS §§ 708-830(2)[6] and 708-830.5(1)(a), [7] and one count ("Count 6") of Theft in the Second Degree, in violation of HRS §§ 708-830(2) and 708-831(1)(b).[8]

         Counts 1 through 5 allege that Pitolo, in separate continuing courses of conduct, "did obtain or exert control over the property of the [State] and/or [WCO] by deception, with the intent to deprive the [State] and/or [WCO] of the property," which exceeded $20, 000 in value, specifically: in Count 1, by writing unauthorized checks from WCO to Jayme Windsor from February 13, 2009 to July 16, 2010; in Count 2, by writing unauthorized checks from WCO to Pulouoleola Salausa from December 8, 2008 to April 16, 2010; in Count 3, by writing unauthorized checks from WCO to herself from March 16, 2007 to July 6, 2010; in Count 4, by making unauthorized cash withdrawals from a WCO account at ATMs from December 27, 2007 to May 26, 2010; and in Count 5, by making unauthorized debit transactions using a WCO account from January 14, 2008 to June 2, 2009. In Count 6, the State alleges Pitolo "did obtain or exert control over the property of the [State] and/or [WCO] by deception, with the intent to deprive the [State] and/or [WCO] of the property," which exceeded $300 in value, by writing an unauthorized check from WCO to Young Ho Sim. Count 6 pertains to one check written to Young Ho Sim, and does not allege a continuing course of conduct.

         In each of the six counts, the State alleges the following: "the earliest date of the discovery of the offense by the State of Hawai[']i or by a person who has a legal duty to represent the State of Hawai[']i and who was not a party to the offense was after September 5, 2013," which is the date DHS started its investigation and audit of WCO.

         2. Motion to Dismiss

         a. Pitolo's Motion and Arguments

         On January 12, 2016, Pitolo filed a motion to dismiss the felony information with prejudice ("motion to dismiss"), asserting the State failed to file the charges within the three-year statute of limitations of HRS § 701-108(2)(d), [9] and failed "to accurately state the date of the earliest discovery of the alleged offenses in the Felony Information" as required by HRS § 701-108(3)(a)[10] and State v. Stan's Contracting, Inc., Ill. Hawai'i 17, 137 P.3d 331 (2006) . Pitolo argued that pursuant to Stan's Contracting, to rely on the statute of limitations extension provision of HRS § 701-108(3)(a), the State was required to allege in the felony information "the earliest date of the 'discovery of the offense by an aggrieved party ... or person who has a legal duty to represent [the] aggrieved party.'" Stan's Contracting, 111 Hawai'i at 34, 137 P.3d at 348.

         Pitolo asserted the "date of discovery" of the charged offenses was sometime in May 2010, when Placencia discovered evidence of the alleged theft. Pitolo contended that based on the alleged May 2010 discovery date, the statute of limitations for all six counts of the felony information expired in 2013, well before the felony information was filed on March 17, 2015. Pitolo asserted that "discovery of the offense" was not extended until September 5, 2013 pursuant to HRS § 701-108(3)(a), as alleged by the State, because of dilatory investigation and prosecution.

         Pitolo also argued that the circuit court should not look to when particular checks were discovered, because discovery of one check triggered a duty to investigate. Pitolo further asserted the State may not eliminate particular transactions and selectively prosecute ...


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