State v. Truglio

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
29-MAY-2024
09:26 AM
Dkt. 110 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I

STATE OF HAWAI#I, Plaintiff-Appellee, v.
LESLIE L.C. TRUGLIO, Defendant-Appellant

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CR. NO. 1CPC170001522)

SUMMARY DISPOSITION ORDER
(By: Leonard, Acting Chief Judge, Hiraoka and McCullen, JJ.)

Defendant-Appellant Leslie L.C. Truglio (Truglio)

appeals from the February 6, 2020 Second Amended Judgment of

Conviction and Probation Sentence (Second Amended Judgment)

entered by the Circuit Court of the First Circuit (Circuit Court)

in favor of Plaintiff-Appellee State of Hawai#i (State).1

Truglio also challenges the Circuit Court's November 16, 2018

Findings of Fact [(FOFs)]; Conclusions of Law [(COLs)); Order

Denying Defendant's Motion to Dismiss Indictment (Order Denying

Motion to Dismiss).

On October 26, 2017, Truglio was indicted by grand jury

with one count of Theft in the First Degree in violation of

1
The Honorable Karen T. Nakasone presided.
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Hawaii Revised Statutes (HRS) §§ 708-830(1) (2014),2 and 708-

830.5(1)(a) (2014).3 4 On September 23, 2019, the Circuit Court

found Truglio guilty of the lesser included offense of Theft in

the Second Degree under HRS § 708-831(1)(b) (2014).5 On February

6, 2020, Truglio was sentenced to four years of probation and

ordered to make restitution payments to the Department of Human

Services and John Cruz (Cruz).

Truglio raises three points of error on appeal,

contending that: (1) the Circuit Court erred in denying

Truglio's motion to dismiss; (2) the Circuit Court erred by

failing to consider Truglio's authorized control over TuneCore

funds; and (3) there was insufficient evidence to convict Truglio

of Theft in the Second Degree.

2
HRS § 708-830 provides, in pertinent part:
§ 708-830 Theft. A person commits theft if the
person does any of the following:
(1) Obtains or exerts unauthorized control over
property. A person obtains or exerts
unauthorized control over the property of
another with intent to deprive the other of
the property.
3
HRS § 708-830.5 provides, in pertinent part:
§ 708-830.5 Theft in the first degree. (1) A
person commits the offense of theft in the first
degree if the person commits theft:
(a) Of property or services, the value of
which exceeds $20,000[.]
4
Truglio was indicted on a second count, for which the Circuit
Court entered a Judgment of Acquittal on May 3, 2019.
5
HRS § 708-831 provides, in pertinent part:

§ 708-831 Theft in the second degree. (1) A person
commits the offense of theft in the second degree if the
person commits theft:
(a) Of property from the person of another;
(b) Of property or services the value of which exceeds
$300[.]

2
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Upon careful review of the record and the briefs

submitted by the parties, and having given due consideration to

the arguments advanced and the issues raised by the parties, we

resolve Truglio's points of error as follows:

(1) Truglio argues that the Circuit Court erred in

denying his motion to dismiss the grand jury indictments on the

grounds of prosecutorial misconduct. Truglio argues that the

grand jury was misled because the State allowed Cruz to lie about

Truglio's ownership interest in certain businesses and asked
misleading questions about Truglio's ownership interests.

"In cases involving allegations of prosecutorial abuse

or misconduct, this court has applied an abuse of discretion

standard when reviewing a motion to dismiss an indictment."

State v. Taylor, 126 Hawai#i 205, 214, 269 P.3d 740, 749 (2011).

"The burden of establishing abuse of discretion is on appellant,

and a strong showing is required to establish it." State v.

Deguair, 136 Hawai#i 71, 84-85, 358 P.3d 43, 56-57 (2015)

(quoting State v. Hinton, 120 Hawai#i 265, 273, 204 P.3d 484, 492

(2009)).
In reviewing the sufficiency of the evidence to
establish probable cause before the grand jury, every
legitimate inference that may be drawn from the evidence
must be drawn in favor of the indictment and neither the
trial court nor the appellate court on review may substitute
its judgment as to the weight of the evidence for that of
the Grand Jury. The evidence to support an indictment need
not be sufficient to support a conviction.

State v. Shaw, 150 Hawai#i 56, 61, 497 P.3d 71, 76 (2021) (citing

Taylor, 126 Hawai#i at 215, 269 P.3d at 750).

Here, none of the Circuit Court's FOFs are specifically

challenged on appeal and they state as follows:

3
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

1. This case was presented to the Grand Jury on
October 26, 2017 through testimony of the Complainant [Cruz]
and Special Agent John Thompson.
2. During the grand jury proceedings, [Cruz]
testified that [Truglio] placed herself on the company's
existing registration at the [Department of Commerce and
Consumer Affairs (DCCA)] as an owner/manager of his
business.
3. [Cruz] further testified that [Truglio] did this
without his knowledge or consent.
4. [Cruz] further testified that the DCCA informed
him that this unilateral change was not binding.
5. [Cruz] further testified that he terminated
[Truglio] as his business manager in writing on June 3,
2013.
6. Special Agent John Thompson, the lead
investigator on the case, testified that monies earned from
[Cruz's] music sales at TuneCore were re-directed from his
business bank account to [Truglio's] personal bank account
on June 9, 2013.

7. Special Agent Thompson testified only that
[Truglio] had access to this TuneCore account.
8. [Cruz] further testified that he and [Truglio]
memorialized the termination of their business relationship
via [an Agreement] effective July 31, 2013.
9. [Cruz] further testified that the [Agreement]
terminated all interest that [Truglio] may have had in all
of Cruz's music companies.

10. [Cruz] and Special Agent Thompson both testified
that the monies taken by [Truglio] from the effective date
of the [Agreement] (July 31, 2013) through August 17, 2015
exceeded $20,000.
[FOF 11 was deleted by the Circuit Court]

12. Special Agent John Thompson testified to
correspondence between [Cruz], TuneCore, and [Truglio].
13. That correspondence indicated that TuneCore made
a determination that [Cruz] was the rightful recipient of
the royalty payments and redirected them accordingly.

14. That correspondence further indicated that
[Truglio] inquired about the stoppage of TuneCore payments
but made no further inquiry after TuneCore explained their
reasoning.

(Record citations omitted).

Notwithstanding, as Truglio points out, questions and

statements by members of the Grand Jury concerning Truglio's

alleged ownership interests, the Grand Jury indicted Truglio.

4
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

"[U]nchallenged findings of fact are binding upon this court."

State v. Rodrigues, 145 Hawai#i 487, 494, 454 P.3d 428, 435

(2019) (citation and internal quotation marks omitted). In light

of the unchallenged FOFs in this case, which are supported by the

record in this case, we cannot conclude that the Circuit Court

abused its discretion in concluding that Truglio failed to meet

her burden of establishing prosecutorial misconduct in the grand

jury proceedings.

(2) Truglio contends that she maintained ownership
over the TuneCore funds despite the Agreement because (1) she

only entered the Agreement out of economic duress and (2) the

Agreement is otherwise void because Cruz materially breached the

Agreement by locking her out of certain email account.

In a criminal case, duress is an affirmative defense.

See HRS § 702-231 (2014).6 A defendant has "the burden of going
forward with the evidence to prove the facts constituting such

defense" under a "preponderance of the evidence" standard. HRS

§ 702-231(5). A defendant must prove that (1) the defendant was

coerced by another, (2) through "the use of, or a threat to use,

6
HRS § 702-231 provides, in pertinent part:
§ 702-231 Duress. (1) It is a defense to a penal
charge that the defendant engaged in the conduct or caused
the result alleged because he was coerced to do so by the
use of, or a threat to use, unlawful force against his
person or the person of another, which a person of
reasonable firmness in his situation would have been unable
to resist.
. . . .
(5) In prosecutions for any offense described in this
Code, the defense asserted under this section shall
constitute an affirmative defense. The defendant shall have
the burden of going forward with the evidence to prove the
facts constituting such defense, unless such facts are
supplied by the testimony of the prosecuting witness or
circumstance in such testimony, and of proving such facts by
a preponderance of the evidence pursuant to section 701-115.

5
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

unlawful force against the [defendant]," and (3) "a person of

reasonable firmness" would not be able to resist such coercion.

HRS § 702-231(1); State v. Ortiz, 93 Hawai#i 399, 406, 4 P.3d

533, 540 (App. 2000). The Circuit Court concluded that Truglio

failed to meet this burden. Truglio makes no cogent argument to

the contrary on appeal.

Truglio argues that because Cruz cut off her access to

the company email, she believed her actions were authorized, as

Cruz was obligated under the Agreement to continue her email
access. Truglio cites no legal authority supporting this

proposition as a defense to a charge of theft, but it appears

that she contends that this alleged "material breach" of the

Agreement should have created reasonable doubt by the trier-of-

fact. Clearly, the trier-of-fact rejected this theory of

defense. We conclude that Truglio has not established grounds

for appellate relief based on Cruz's alleged breach of contract.

(3) Truglio argues that there was insufficient

evidence to convict her of Theft in the Second Degree. We review

the sufficiency of the evidence in the light most favorable to

prosecution. See, e.g., State v. Jones, 148 Hawai#i 152, 166,

468 P.3d 166, 180 (2020). "A conviction of theft in the second

degree pursuant to HRS § 708-831(1)(b) (2014) requires that the

defendant intentionally or knowingly commit theft of property

valued in excess of $300." State v. Means, 148 Hawai#i 212, 220,

468 P.3d 226, 234 (2020) (citation and internal quotation marks

omitted).

6
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Here, viewing the evidence in the light most favorable

to the prosecution, there is ample evidence to support the

conviction.

For these reasons, the Circuit Court's February 6, 2020

Second Amended Judgment is affirmed.

DATED: Honolulu, Hawai#i, May 29, 2024.

On the briefs: /s/ Katherine G. Leonard
Acting Chief Judge
Jacob G. Delaplane,
for Defendant-Appellant. /s/ Keith K. Hiraoka
Associate Judge
Michelle M.L. Puu,
Deputy Attorney General, /s/ Sonja M.P. McCullen
Department of the Attorney Associate Judge
General, State of Hawai#i,
for Plaintiff-Appellee.

7