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IN THE SUPREME COURT OF THE STATE OF HAWAI‘I

---oOo---

________________________________________________________________

STATE OF HAWAI‘I, Respondent/Plaintiff-Appellant,

vs.

LAURA PITOLO, Petitioner/Defendant-Appellee.

________________________________________________________________

SCWC-16-0000413

CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS

(CAAP-16-0000413; 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.

Electronically Filed

Supreme Court

SCWC-16-0000413

18-MAR-2019

07:51 AM
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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).
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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 twentynine 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 fouryear 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 threeyear 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 continuingcourse-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-courseof-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