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Jury finds man not guilty of assault

He was accused of pocketing phone, tussling with owner

Christy Kajiwara-Gusman testifies in the 2nd Circuit Court trial of Dwayne Tuck on Nov. 24. He was found not guilty of assaulting her after she grabbed her cellphone from him. The Maui News / LILA FUJIMOTO photos

WAILUKU — A man who testified he wanted to get a cellphone back to its owner when he pocketed it from a Kahului store counter was found not guilty of assaulting the owner when she grabbed the phone from him.

A 2nd Circuit Court jury, which returned the not-guilty verdict Tuesday, couldn’t reach a verdict on another charge of third-degree theft against Dwayne Tuck, 57.

He had asked for a jury trial on the misdemeanor charges.

“We are relieved and happy with the verdict,” said Deputy Public Defender Tyler Stevenson.

Tuck’s trial, which began last week in 2nd Circuit Court, was the first jury trial held in the state since the COVID-19 pandemic.

Dwayne Tuck is sworn in as a witness before taking the stand Nov. 24 in his trial. Second Circuit Judge Rhonda Loo presided over the first jury trial in the state since the pandemic.

Tuck was cited for the offenses Nov. 29, 2019, when police officers responded to a call from Christy Kajiwara-Gusman.

That afternoon, she was paying for purchases at a cash register in Walgreens in Kahului when she put her phone down. She testified she left the store and went to her car before realizing her phone was missing.

Store surveillance video showed Tuck paying for a purchase when Kajiwara-Gusman went back into the store and asked the cashier if a cellphone had been left. Not seeing the phone, she ended up leaving and calling police.

Using her business cellphone, Kajiwara-Gusman said she began calling her missing cellphone, with records showing she made 17 calls that were declined from 3:58 to 4:21 p.m.

She said she used GPS tracking and saw that the phone was at the Kahului Public Library a few blocks away. Kajiwara-Gusman said she drove to the library and parked on the street outside while continuing to call the phone, which was in the library.

A few seconds later, she said she saw Tuck walking out of the library and recognized him as the man who had been in line behind her in Walgreens. When she called the phone again, he put down a red shopping bag, took out the cellphone and turned off the ringer, she said.

Kajiwara-Gusman was standing outside her car when she saw Tuck heading toward her and called the phone again, she said. He again took the phone out of his shopping bag, she continued.

“As he turns it off, I grab the phone from him, and I told him, ‘Give me back my sh–,’ “ Kajiwara-Gusman recalled. “He grabbed me by my throat. I was upset and angry. I don’t know if I kicked him or kneed him by the groin area.”

She said Tuck grabbed her by her tank top and as she struggled to remove his hand, “we kind of backpedaled and fell over.”

She said her shirt ripped, leaving her topless.

Two young men intervened, with one helping pick her up and the other staying with Tuck, who seemed to be walking away, Kajiwara-Gusman said.

She photographed scratches to her left hand, cheek and shoulder, as well as redness on her neck and chest.

Testifying in his defense, Tuck said he had stopped at Walgreens to buy Skittles for a snack before taking a bus to Kahului Airport to catch a flight to Oahu. When he saw the phone as he was at the cash register, Tuck said he “thought I could probably turn it in or I could try and be a good Samaritan.”

He said he walked to the library to use the computer to try to get information about the phone, which was locked.

When he stepped out of the library, Tuck said the phone “buzzed.”

“I reached into the bag and pressed the buttons,” he said. “By that time, I had walked past someone and they came up and the commotion started.

“As I went past her, the phone buzzed. I reached in my bag and heard, ‘That’s my phone’ and someone reached inside my bag and knocked down my bag and forced me off the sidewalk.”

He said Kajiwara-Gusman took her phone, grabbed his shirt and began “clawing at my face.”

His shirt was ripped, Tuck said.

Under cross-examination by Deputy Prosecutor Joanne Hicks, Tuck acknowledged that while at Walgreens, he took a piece of paper from his pocket, unfolded it and covered the phone with it for about 40 seconds before putting the phone in his pocket.

Tuck said he might have heard someone in the store say “phone,” but “I didn’t connect the two.”

Responding to a juror’s question, Tuck said he didn’t turn in the phone to the store clerk because he had heard several “pro island” statements from one or two clerks — “biased, racist stuff that I didn’t choose to trust them.”

He said he had decided to turn in the phone to the Transportation Security Administration at the airport.

* Lila Fujimoto can be reached at lfujimoto@mauinews.com.

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