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State v. Gray

Supreme Court of Arkansas

December 1, 2016

STATE OF ARKANSAS APPELLANT
v.
WALTER CECIL GRAY APPELLEE

         APPEAL FROM THE WASHINGTON COUNTY CIRCUIT COURT [NO. CR-2014-2076] HONORABLE JOANNA TAYLOR, JUDGE

         DISMISSED IN PART; AFFIRMED IN PART.

          Leslie Rutledge, Att'y Gen., by: Kristen C. Green, Ass't Att'y Gen., for appellant.

          Chad L. Atwell, for appellee.

          PAUL E. DANIELSON, Associate Justice

         The State of Arkansas appeals from an order of the Washington County Circuit Court dismissing a charge of theft by deception against appellee Walter Cecil Gray on the basis that the charge was barred by the applicable statute of limitations. On appeal, the State contends that the circuit court abused its discretion in granting Gray's motion to dismiss. We dismiss the appeal in part and affirm it in part.

         On November 13, 2014, Gray was charged by information with one count of theft by deception in violation of Arkansas Code Annotated section 5-36-103(a)(2) (Repl. 2013). The offense was charged as a Class B felony pursuant to section 5-36-103(b)(1)(A) because the value of the property alleged to have been stolen was greater than $25, 000. An arrest warrant was issued that same day. In short, the State alleged that the victim, Treva Shaffer, had loaned Gray $40, 000 and that Gray had no intention of paying her back. Shaffer had two wire transfers sent to an account at an Arvest Bank in Fayetteville-the first on June 9, 2011, for $25, 000, and the second on June 27, 2011, for $15, 000. The State alleged that the Arvest account was actually owned by Old Timers Electric Corporation, an "alter-ego" of Gray, and that Gray did not inform Shaffer of this until after the wire transfers had been made. The State further alleged that, in 2013, Shaffer had begun to seek repayment from Gray, who first promised to repay her himself and then assured her that she would be repaid by various persons and entities that Shaffer believed to be fictitious. The State averred in the information that the offense was committed between June 1, 2011, and June 17, 2014.

         Gray filed a motion to dismiss asserting that the three-year statute of limitations for Class B felonies had expired before commencement of the prosecution. See Ark. Code Ann. § 5-1-109(b)(2) (Repl. 2013). He also filed a motion for bill of particulars, specifically requesting that the State apprise him of the particular date or dates on which the theft was alleged to have occurred. In response, the State argued that Gray had engaged in an ongoing pattern of deception and that his theft was therefore a continuing course of conduct for which the statute of limitations had not yet run. See id. § 5-1-109(e)(1)(B). The State also referred to the tolling provision found in subsection (c)(1), which provides that the statute of limitations for an offense involving fraud may be extended for one year after the offense has been discovered or should reasonably have been discovered. After a hearing on Gray's motions, the circuit court ordered the State to file a bill of particulars and took the motion to dismiss under advisement.

         In its bill of particulars, the State continued to allege that Gray had committed the offense of theft by deception between June 1, 2011, and June 17, 2014. The State did expand on the allegations in some respects: it averred that Shaffer had become acquainted with Gray when she sold two pieces of property through his realty company in 2010, that Gray had started pressing Shaffer for a loan in May 2011 while Shaffer was out of state, and that Shaffer had agreed to loan the money to Gray personally. The State also alleged that the funds in the Arvest account had been used to pay Gray's personal expenses and as a source of cash, although he had represented to Shaffer that the funds were to be used as an investment in a "water powered generating technology" and in "solar distribution contracts." In addition, the State alleged that subsequent to the June 2011 wire transfers and continuing until the spring of 2013, Gray continued to press Shaffer for more loans; in exchange, he offered her a percentage of the gross revenue of Old Timers Electric Corporation, stock in Old Timers Electric Corporation, and a new car. Shaffer refused these requests. The State further alleged that Shaffer first confronted Gray about the money he owed her in the spring of 2013. This resulted in multiple promises by Gray to repay her, both personally and through third parties, which continued until May 2014. According to the State, Shaffer retained an attorney sometime during that time frame. Additionally, Gray filed for bankruptcy in November 2013 and did not list Shaffer as either a secured or an unsecured creditor. The State alleged that Gray was engaged in an ongoing deception of Shaffer "until June 17, 2014, " although the bill of particulars contained no other reference to that specific date.

         Gray then renewed and amended his motion to dismiss, arguing that theft by deception is not a continuing offense and that the statute of limitations began to run when every element of the offense had occurred, pursuant to Arkansas Code Annotated section 5-1-109(e). He further contended that there was no fraud for purposes of the tolling provision and that, even if there had been, Shaffer knew or should have known that the offense had been committed by June 27, 2011, the date of the second wire transfer. In response to the State's bill of particulars, Gray maintained that any deception he was alleged to have engaged in after the June 2011 wire transfers was irrelevant, making the offense, if there was one, complete on June 27, 2011. In response, the State continued to argue that the statute of limitations had not run, either because theft by deception constituted a continuing offense or because the tolling provision applied.

         After another hearing, the circuit court entered its order granting Gray's motion to dismiss on July 30, 2015. The court specifically found that the statute of limitations had begun to run on June 27, 2011, and that more than three years had elapsed before commencement of the prosecution. The court further found that theft by deception is not a continuing course of conduct and that there was no fraud to invoke the one-year extension of the statute of limitations. This appeal timely followed.

         As a threshold matter, we must determine the propriety of this appeal under Rule 3 of the Arkansas Rules of Appellate Procedure-Criminal (2016). Pursuant to Rule 3, the right of appeal by the State is limited. See, e.g., State v. Brashers, 2015 Ark. 236, 463 S.W.3d 710. This court has consistently held that there is a significant difference between appeals brought by criminal defendants and those brought on behalf of the State. See id. The former is a matter of right, whereas the latter is neither a matter of right nor derived from the Constitution. See id. Rather, it is only granted pursuant to the confines of Rule 3. See id. We accept appeals by the State when our holding would be important to the correct and uniform administration of the criminal law. See id. As a matter of practice, this court has only taken appeals "which are narrow in scope and involve the interpretation of law." Id. at 5, 463 S.W.3d at 712 (quoting State v. Stephenson, 330 Ark. 594, 595, 955 S.W.2d 518, 519 (1997)). We do not permit State appeals merely to demonstrate the fact that the trial court erred. See id.

         Thus, where an appeal does not present an issue of interpretation of the criminal rules with widespread ramifications, this court has held that such an appeal does not involve the correct and uniform administration of the law. See id. Similarly, where the resolution of the issue on appeal turns on the facts unique to the case or involves a mixed question of law and fact, the appeal is not one requiring interpretation of our criminal rules with widespread ramifications, and the matter is not appealable by the State. See id. Finally, where an appeal raises an issue of the application, rather than the interpretation, of a criminal rule or statutory provision, it does not involve the correct and uniform administration of the criminal law and is not appealable by the State under Rule 3. See id.

         The crux of the State's argument in this appeal is that the circuit court erred in granting the motion to dismiss because the statute of limitations had not yet expired when this prosecution was commenced. The State advances two alternative theories in support of this argument. First, it contends that theft by deception is a continuing offense for statute-of-limitations purposes. This issue clearly involves interpretation of the law, and the outcome will potentially have widespread ramifications. See id. Our statute of limitations refers to continuing offenses as those where "a legislative purpose to prohibit a continuing course of conduct plainly appears." Ark. Code Ann. § 5-1-109(e)(1)(B). In determining whether a statute prohibits a continuing course of conduct, we look to the words used in the statute. See McClanahan v. State, 2010 Ark. 39, 358 S.W.3d 900. Accordingly, this is an issue of statutory interpretation rather than application. Moreover, our decision on ...


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