State v. Pitolo.

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Electronically Filed
Supreme Court
SCWC-XX-XXXXXXX
18-MAR-2019
IN THE SUPREME COURT OF THE STATE OF HAWAI‘I
07:51 AM
---oOo---
________________________________________________________________

STATE OF HAWAI‘I, Respondent/Plaintiff-Appellant,
vs.
LAURA PITOLO, Petitioner/Defendant-Appellee.
________________________________________________________________

SCWC-XX-XXXXXXX

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

MARCH 18, 2019

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

OPINION OF THE COURT BY 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

Hawaiʻi 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

1
The Honorable Rom A. Trader presided.
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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 Hawaiʻi (“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 Hawaiʻi 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 §

2
In no event, however, does HRS § 701-108(3)(a) extend the statute of
limitations by more than six years after the expiration of the statute of
limitations prescribed in HRS § 701-108(2). HRS § 701-108(3)(a) (2014).

2
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701-108(3)(a) was the State Department of Human Services’

(“DHS”) September 5, 2013 commencement of an investigation

regarding the allegations. Pitolo, 141 Hawaiʻi 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 Oʻahu’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.

3
Jayme Windsor is also referred to as “Jamye Windsor” throughout the
record. For consistency, we use the spelling “Jayme” throughout this
opinion.
(continued. . .)
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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

(. . . continued)
4
Placencia was charged by felony information on March 23, 2015 and
eventually pled no contest to four counts of Theft in the First Degree and
one count of Theft in the Second Degree. Placencia was sentenced to a four-
year term of probation and was ordered to pay a total of $554,495.43 in
restitution to DHS.
5
WCO’s civil complaint accused Pitolo of issuing checks totalling
$60,844.60 to Jayme Windsor, $169,215.00 to Pulouoleola Salausa, and
$141,190.87 to herself. The civil complaint also asserted Pitolo withdrew a
total of $390,795.78 from WCO’s bank accounts by making unauthorized ATM or
direct cash withdrawals at WCO’s bank.

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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

6
HRS § 708-830(2) (2006) provides: “Property obtained or control exerted
through deception. A person obtains, or exerts control over, the property of
another by deception with intent to deprive the other of the property.”
7
HRS § 708-830.5(1)(a) (Supp. 2006) provided, in relevant part: “A
person commits the offense of theft in the first degree if the person commits
theft . . . [o]f property or services, the value of which exceeds $20,000[.]”
“Theft in the first degree is a class B felony.” HRS § 708-830.5(2).

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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

8
HRS § 708-831(1)(b) (Supp. 2012) provided, in relevant part: “A person
commits the offense of theft in the second degree if the person commits theft
. . . [o]f property or services the value of which exceeds $300[.]” “Theft
in the second degree is a class C felony.” HRS § 708-831(2).

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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., 111 Hawaiʻi

9
HRS § 701-108(2)(d) (2014) provided: “Except as otherwise provided in
this section, prosecutions for other offenses are subject to the following
periods of limitation: . . . [a] prosecution for any other felony must be
commenced within three years after it is committed[.]” This section was
amended in 2016, but those amendments are not relevant here.
10
HRS § 701-108(3)(a) provided:

(3) If the period prescribed in subsection (2) has expired,
a prosecution may nevertheless be commenced for:

(continued. . .)
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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 Hawaiʻi 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.

(. . . continued)
(a) Any offense an element of which is fraud, deception as
defined in section 708-800, or a breach of fiduciary
obligation, . . . 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, but in no case shall
this provision extend the period of limitation by more
than six years from the expiration of the period of
limitation prescribed in subsection (2)[.]

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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 transactions found in a later

investigation to avoid the statute of limitations.

b. State’s Arguments

In response, the State conceded that charges based on the

thirty-seven checks Placencia allegedly discovered and reported

to police in May to August 2010 were time-barred,11 but insisted

that, as charged, Counts 1, 2, and 3 excluded those specific

checks. The State argued the felony information was therefore

timely filed because the earliest date of discovery for the

offenses in the felony information was after September 5, 2013,

when DHS began its investigation, making September 5, 2016 the

earliest statute of limitations expiration date for all six

counts. The State also argued that discovery of one check or

transaction in a continuing-course-of-conduct offense did not

mean that all transactions constituting the crime were

11
To the extent this concession by the State and statements made in the
ICA opinion, Pitolo, 141 Hawaiʻi at 142-43, 406 P.3d at 365-66, can be
construed to suggest that HPD, not Placencia, was “a person who has a legal
duty to represent an aggrieved party and who is oneself not a party to the
offense” for purposes of the statute of limitations extension provision of
HRS § 701-108(3)(a), we note that HPD is not “a person who has a legal duty
to represent an aggrieved party” under the circumstances of this case. See
also infra n.15.

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discovered, and therefore the full extent of Pitolo’s offenses

was not discovered until the September 2013 investigation was

commenced by DHS. The State also contended the civil complaint

did not set the discovery date because it was unclear what

transactions the complaint was based upon or what specific acts

it alleged, and thus it was unclear what WCO had actually

discovered and when. The State alternatively argued that even

if the civil complaint established the discovery date, the

State’s felony information was timely filed.

c. Circuit Court’s Ruling

At the hearing on the motion to dismiss, the circuit court

opined that WCO’s 2013 civil complaint against Pitolo appeared

to cover the same criminal conduct or scheme as was charged in

the felony information, and inferred that WCO had sufficient

information about Pitolo’s crimes to file suit at that time.

The circuit court acknowledged that there were two ways to read

the word “offense” in HRS § 701-108(3)(a). One reading would

mean the limitations period was triggered upon discovery of “the

specific crimes that were charged,” while a broader reading

based on Stan’s Contracting would mean the statute of

limitations was triggered upon “discovery of the scheme.”

On April 25, 2016, the circuit court filed its Findings of

Fact, Conclusions of Law, and Order Granting Defendant Laura

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Pitolo’s Motion to Dismiss Felony Information with Prejudice.

The circuit court concluded that both WCO and the State were

aggrieved parties for purposes of determining a “discovery date”

under HRS § 701-108(3)(a).

The circuit court determined all six counts of the felony

information were based on conduct that constituted “one criminal

scheme,” and discovery of the “offense” under HRS § 701-

108(3)(a) in this case meant discovery of the criminal scheme.

The circuit court ruled that the discovery date of Pitolo’s

scheme was either May 27, 2010 or no later than August 7, 2010,

and the statute of limitations for prosecution of the scheme

accordingly expired on either May 27, 2013 or August 7, 2013.

The circuit court granted Pitolo’s motion to dismiss all counts

in the felony information with prejudice.

C. ICA Ruling

The State appealed to the ICA, generally asserting that the

circuit court erred (1) by concluding that the applicable

statute of limitations expired on either May 27, 2013 or August

7, 2013, and (2) by concluding Pitolo’s alleged conduct

constituted a single criminal scheme. Pitolo, 141 Hawai‘i at

143, 406 P.3d at 366. The ICA held as follows:

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
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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 Hawai[‘]i 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.

141 Hawaiʻi at 132, 406 P.3d at 355. Based on these holdings,

the ICA affirmed the circuit court’s dismissal with prejudice of

Counts 1, 2, and 3,12 but vacated the circuit court’s dismissal

of Counts 4, 5, and 6.

III. Standards of Review

A. Motion to Dismiss

This court has stated:

A trial court’s ruling on a motion to dismiss an indictment
is reviewed for an abuse of discretion. The trial court
abuses its discretion when it clearly exceeds the bounds of
reason or disregards rules or principles of law or practice
to the substantial detriment of a party litigant. The
burden of establishing abuse of discretion is on appellant,
and a strong showing is required to establish it.

State v. Hinton, 120 Hawai‘i 265, 273, 204 P.3d 484, 492 (2009)

(citations, internal quotation marks, and brackets omitted).

12
The State did not apply for certiorari to request reinstatement of
Counts 1 through 3. Therefore, we do not address whether those counts were
also improperly dismissed by the circuit court.

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B. Conclusions of Law

Conclusions of law are ordinarily reviewed under the

right/wrong standard. Estate of Klink ex rel. Klink v. State,

113 Hawai‘i 332, 351, 152 P.3d 504, 523 (2007). A conclusion of

law that is supported by the trial court’s findings of fact and

reflects an application of the correct rule of law will not be

overturned. Id. Additionally, in reviewing a trial court’s

decision, that court’s label of a finding or fact or conclusion

of law is not determinative of the standard of review. Crosby

v. State Dep’t of Budget & Fin., 76 Hawaiʻi 332, 340, 876 P.2d

1300, 1308 (1994).

IV. Discussion

Pitolo presents two questions on certiorari:

(1) Whether the ICA gravely erred in misconstruing
[Stan’s Contracting], and holding in Counts 4, 5, and
6, that each count constituted a separate offense for
the purpose of determining the earliest date of
discovery under HRS § 701-108(3)(a) despite the State
charging Pitolo with theft by deception from a single
complainant, in a continuing course of conduct, by
multiple methods, e.g., unauthorized checks,
unauthorized debit transactions, and unauthorized ATM
withdrawals, occurring simultaneously during
overlapping periods of time.

(2) Whether the ICA gravely erred in disregarding HRS §
701-108(3)(a) and [Stan’s Contracting] in applying
its own transaction test to hold that the earliest
date of discovery for Counts 4, 5, and 6 required
that the individual transactions be discovered by law
enforcement for the statute of limitations to be
triggered.

We address the questions on certiorari as follows.

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A. The ICA Correctly Held That Prosecutorial Discretion
Allowed Counts 4, 5, and 6 to be Charged as Separate
Offenses and That There Are Questions of Fact Regarding
the Statute of Limitations Applicable Thereto.

With respect to the first question on certiorari, in

granting the motion to dismiss, the circuit court concluded,

“[t]he alleged conduct that serves as the basis for all 6 Counts

of the Felony Information filed in the instant case

constitute[d] one criminal scheme.” In effect, the circuit

court treated Pitolo’s alleged conduct as a single continuing-

course-of-conduct offense that was discovered at the latest by

the August 2010 referral by Placencia of additional checks to

HPD.13 The circuit court also in effect ruled as a matter of law

that Placencia was a “person with a legal duty to represent an

aggrieved party [WCO] who is oneself not a party to the

offense,” placing the March 17, 2015 filing of the charges

outside the statute of limitations.

Pitolo argues that the circuit court correctly concluded

that Counts 4 through 6 are all a part of one continuing-course-

of-conduct offense as a matter of law and that the ICA therefore

erred by concluding Counts 4, 5, and 6 were separate offenses,

each with an individual discovery date. Pitolo argues that

under Stan’s Contracting, Placencia’s May 2010 discovery of

13
See supra n.11.

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Pitolo’s alleged writing of unauthorized checks constituted

discovery of Pitolo’s “scheme” to defraud the WCO; that the

“scheme” included the conduct charged by the State in Counts 4

through 6; that Placencia was a person who has a legal duty to

represent an aggrieved party and was not herself a party to the

offense; and that, therefore, Placencia’s discovery of the

“scheme” in 2010 did not allow HRS § 701-108(3)(a) to extend the

statute of limitations until March 17, 2015, as this was more

than three years past Placencia’s “discovery” of the “scheme” in

2010.

We first clarify the ICA’s relevant holdings. The ICA did

not actually hold that Counts 4, 5, and 6 are separate offenses,

as argued by Pitolo. Rather, the ICA correctly held that the

State has wide prosecutorial discretion in framing charges, 141

Hawaiʻi at 140, 406 P.3d at 363, and that “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,” 141 Hawaiʻi at 132, 406 P.3d at 355.

The ICA also correctly held that “[t]he determination of whether

a defendant may be convicted of more than one offense, is based

on ‘whether the evidence discloses one general intent or

discloses separate and distinct intents,’ is a question of fact

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that must be decided by the trier-of-fact after trial[,]” and

that, therefore, “the issue of whether the six separate offenses

charged against Pitolo merged was not subject to the

determination of the Circuit Court on Pitolo’s Motion to

Dismiss.” 141 Hawaiʻi at 140 n.13, 406 P.3d at 363 n.13.14

Relying on HRS § 701-108(3)(a), the State charged Pitolo

with first degree theft in Counts 4 and 5 and second degree

theft in Count 6, all by deception, and alleged for each count

that the earliest discovery of the offense by the State of

Hawai‘i was after September 5, 2013, the date DHS began its

investigation. The State clearly had discretion to charge

Counts 4 and 5 as continuing-course-of-conduct offenses, and

Count 6 as a separate discrete offense. See State v. Yokota,

143 Hawai‘i 200, 206, 426 P.3d 424, 430 (2018) (concluding theft

may be charged as a continuing course of conduct).

The ICA also correctly determined that Stan’s Contracting

did not support Pitolo’s position that discovery of “any part of

the criminal scheme or plan, necessarily constitutes the

14
Whether a continuing-course-of-conduct offense occurred is a question
that should be submitted to the jury, and requires a finding that “the facts
demonstrate ‘one intention, one general impulse, and one plan.’” State v.
Martin, 62 Haw. 364, 368, 616 P.2d 193, 196 (1980) (citation omitted) (“[T]he
applicable test in determining whether there is a continuing crime ‘is
whether the evidence discloses one general intent or discloses separate and
distinct intents.’”). Whether a defendant has one general intent or specific
intent is a factual question. See HRS § 701-114(b) (requiring the State to
prove beyond a reasonable doubt “[t]he state of mind required to establish
each element of the offense”).

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‘discovery of the offense’ for each and every offense charged,

pursuant to the tolling provision in HRS § 701-108(3)(a).”

Pitolo, 141 Hawai‘i at 139-40, 406 P.3d at 362-63. Stan’s

Contracting did not hold that discovery of any part of a

criminal “scheme” necessarily triggers the statute of

limitations on a specific count, as argued by Pitolo.

Thus, the ICA did not err in holding that Stan’s

Contracting did not require dismissal of the counts in the

felony information based on Placencia’s 2010 discovery of

unauthorized checks allegedly written by Pitolo. For the

reasons stated, it was improper for the circuit court to

determine on a pre-trial motion to dismiss that Pitolo intended

to engage in a single continuing course of conduct, rather than

multiple continuing courses of conduct (remaining Counts 4 and

5) and a single, discrete offense (remaining Count 6), as

charged by the State. See Yokota, 143 Hawai‘i at 206, 426 P.3d

at 430 (citations omitted). Therefore, the ICA correctly

reinstated Counts 4 through 6.

The ICA correctly ruled that “[e]ach count of the 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 HRS § 701-108(3)(a).” Pitolo, 141

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Hawai‘i at 141, 406 P.3d at 364. It follows that the

determination of whether the evidence discloses one general

intent or discloses separate and distinct intents is a question

of fact that must be decided by the jury. Therefore, although

the State was free to charge separate offenses, and the ICA

correctly reinstated Counts 4 through 6, it will be for the jury

to determine whether there was one general intent as to Counts 4

through 6 or separate intents as to one or more of those counts.

It will also be for the jury to determine the discovery dates of

the “offense” or “offenses” “by an aggrieved party or person

with a legal duty to represent an aggrieved party”15 “who oneself

is not a party” to the “offense” or “offenses.”

B. The ICA Erred in Holding the Earliest Date of Discovery for
Counts 4, 5, and 6 was September 5, 2013.

In her second question, Pitolo contends the ICA gravely

erred “in applying its own transaction test,” to hold “the

earliest date of discovery for Counts 4, 5, and 6 required that

15
Although the statute and our legislative history are silent on the
meaning of a “person who has a legal duty to represent an aggrieved party,”
because “the Hawaiʻi Penal code is substantially derived from the Model Penal
Code” we may “look to the Model Penal Code and its commentary for guidance.”
State v. Aiwohi, 109 Hawai‘i 115, 126, 123 P.3d 1210, 1221 (2005), as
corrected (Dec. 12, 2005).
Section 1.06(3)(a) of the Model Penal Code (“MPC”) is substantially
similar to HRS § 701-108(3)(a). Compare MPC § 1.06(3)(a) (1962) with HRS §
701-108(3)(a). The commentary to MPC § 1.06 provides examples of who may
have a legal duty to represent an aggrieved party, including “a guardian or
trustee.” MPC Part I Commentaries, vol. 1, at 91 (1985).

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the individual transactions be discovered by law enforcement for

the statute of limitations to be triggered.” The ICA stated

that the discovery date of the offense by the WCO and/or the

State of Hawai‘i for Counts 4 through 6 was September 5, 2013.

Pitolo, 141 Hawaiʻi at 143, 406 P.3d at 366.

The “transaction test” Pitolo refers to is the ICA’s

determination that if a type of transaction or type of activity,

such as the writing of checks to herself, was among those

Placencia discovered in May 2010, the State could not further

extend the statute of limitations under HRS § 701-108(3)(a) by

omitting the checks Placencia had discovered from the offense

charged in a count covering the same time period and type of

activity. Pitolo, 141 Hawaiʻi at 142, 406 P.3d at 365.

Distinguishing this case from State v. Martin, 62 Haw. 364, 616

P.2d 193 (1980), in which we held a prosecutor has discretion

“to prosecute under an indictment covering only part of the

entire duration of a continuing offense,” the ICA stated:

While it is permissible to charge and prove the offense
covering any part of the time span of a continuing crime,
and the State was free to do so in this case, we hold that
it is not permissible to disregard discovered conduct that
is (1) indisputably part of the continuing course of
conduct as charged, and (2) that occurred squarely within
the charged period, in order to avoid the running of the
statute of limitations.

Pitolo, 141 Hawaiʻi at 142, 406 P.3d at 365. Based on this

reasoning, the ICA held that Counts 1 through 3, which each

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could have included checks discovered by Placencia in 2010, were

time-barred.16 141 Hawai‘i at 142-43, 406 P.3d at 365-66.

Applying the same reasoning, the ICA held that Counts 4

through 6 did not contain any “discovered-but-omitted”

transactions and that these counts are not time-barred because

the conduct they encompassed, ATM and debit transactions, as

well as Pitolo’s single check to Young Ho Sim, were not included

in Placencia’s report to HPD, Agent Hanagami’s affidavit, or

admitted by the State.17 141 Hawai‘i at 143, 406 P.3d at 366.

The ICA thus held the circuit court “erred in dismissing Counts

4, 5, and 6, based on its erroneous reading of Stan’s

Contracting and its failure to properly apply HRS § 701-

108(3)(a) to the offenses charged in these counts.” Id.

This court has repeatedly confirmed that “timeliness is a

factual issue.” State v. Abdon, 137 Hawai‘i 19, 26, 364 P.3d

917, 924 (2016) (citations omitted). Section 701-114(e) of the

HRS requires that to convict a defendant of an offense, the

16
Again, the State did not request certiorari review of this holding.
See supra n.12.

17
WCO’s civil complaint against Pitolo, filed July 25, 2013, details the
same types of transactions and the same time periods as Counts 1 through 5 of
the felony information, but does not appear to include the single check to
Young Ho Sim in Count 6. This suggests that WCO “discovered” Pitolo’s
conduct some time before DHS began its investigation, and therefore suggests
September 5, 2013 was not the earliest discovery date for Counts 4 and 5.
However, as explained above, the State was required to prove at trial whether
it brought its case against Pitolo within the statute of limitations period,
and the ICA erred, as the circuit court did, in determining as a matter of
law without factual findings whether the felony information was timely.

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prosecutor must prove beyond a reasonable doubt “facts

establishing that the offense was committed within the time

period specified in section 701-108.” HRS § 701-114(e) (2014).

We have also held that when relying on the extension under HRS §

701-108(3)(a), “the prosecution must not only allege the timely

date or dates of the commission of the offense in the

indictment, but also the earliest date of the ‘discovery of the

offense by an aggrieved party or . . . a person who has a legal

duty to represent [the] aggrieved party.’” Stan’s Contracting,

111 Hawaiʻi at 34, 137 P.3d at 348 (ellipses and brackets in

original).

Thus, two facts must be alleged in the charging instrument

and proven beyond a reasonable doubt for a conviction of an

offense sought in reliance on HRS § 701-108(3)(a): (1) the

earliest date of the discovery of the offense by (2) the

aggrieved party or a person with a legal duty to represent the

aggrieved party. Id. Both facts are essential to determining

timeliness under HRS § 701-108(3)(a).

In this case, for purposes of Counts 4 through 6, (1) the

earliest date of discovery of the offense or offenses by (2) an

“aggrieved party or person with a legal duty to represent an

aggrieved party,” and (3) whether the State through DHS is such

a party, are questions of fact for the jury, and the ICA should

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have remanded this case to the circuit court without answering

those questions. In addition, as noted earlier, the

determination of whether Pitolo had the requisite intent for one

single course of conduct encompassing all six charged counts was

a question of fact. Thus, to the extent the ICA ruled on a

discovery date of these offenses (or offense) based on discovery

by DHS, it erred.

V. Conclusion

For the foregoing reasons, we affirm the ICA’s November 30,

2017 Judgment on Appeal filed pursuant to its October 30, 2017

opinion reinstating Counts 4, 5, and 6 of the March 17, 2015

felony information and remanding this case to the circuit court

for further proceedings, but as further clarified by this

opinion.

John M. Tonaki, /s/ Mark E. Recktenwald
Darcia Forester, and
Taryn R. Tomasa, /s/ Paula A. Nakayama
for petitioner
/s/ Sabrina S. McKenna
Douglas S. Chin and
Michael S. Kagami, /s/ Richard W. Pollack
for respondent
/s/ Michael D. Wilson

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