State v. Gray, 2016 Ark. 411

Walter C. Gray was charged (11/13/2014) with Class B felony theft by deception for allegedly obtaining $40,000 from Treva Shaffer by deception (wire transfers on June 9 and June 27, 2011) into an account controlled by an entity tied to Gray.
The information alleged the offense occurred between June 1, 2011, and June 17, 2014; the State alleged ongoing deception and promises to repay through 2014.
Gray moved to dismiss as time-barred under the three-year statute of limitations for Class B felonies (Ark. Code Ann. § 5-1-109(b)(2)); he also requested a bill of particulars identifying the dates of the alleged offense.
The State argued theft by deception is a continuing offense (so limitations would run when the course ended) and alternatively invoked the fraud-discovery tolling provision extending limitations one year after discovery.
The circuit court found theft by deception is not a continuing offense, concluded the offense occurred on June 9 and 27, 2011 (when funds were obtained), and dismissed the charge as beyond the three-year limitations period; the State appealed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether theft by deception is a "continuing offense" for statute-of-limitations purposes	Theft-by-deception can be continuing where statute language and a scheme-to-defraud show an ongoing course of conduct, so limitations run when the course terminates	"Obtain" denotes a discrete act; the offense completed when property was obtained (June 2011); subsequent false promises are irrelevant	Court held theft by deception is generally not a continuing offense; the offense occurred when every element happened (June 9 and 27, 2011) and limitations expired before prosecution
Whether fraud-discovery tolling extended the limitations period	State: Gray’s ongoing deception prevented discovery until 2014, so tolling under § 5-1-109(c)(1) applies	Gray: No actionable fraud to trigger tolling; Shaffer knew or should have known by June 27, 2011	Court did not decide this issue on appeal (dismissed that part of the State’s appeal as fact-bound and thus not proper for State appeal)

McClanahan v. State, 2010 Ark. 39, 358 S.W.3d 900 (statutory construction governs whether an offense is continuing)
Reeves v. State, 374 Ark. 415, 288 S.W.3d 577 (discretionary-review standard; discussed retaining possession as a continuing act)
State v. Reeves, 264 Ark. 622, 574 S.W.2d 647 (retaining stolen property held to be a continuing offense)
Scott v. State, 69 Ark. App. 121, 10 S.W.3d 476 (theft of public benefits treated as continuing where obtaining/retaining benefits continued the fraud)
McEntire v. State, 363 Ark. 473, 215 S.W.3d 658 (definition of "scheme to defraud" and its implication of a pattern of conduct)
State v. Hayes, 366 Ark. 199, 234 S.W.3d 307 (noted as an example where the court’s holding affected uniform administration of criminal law)
State v. Crane, 2014 Ark. 443, 446 S.W.3d 182 (explains limits on State appeals when issues are fact-bound)
State v. Brashers, 2015 Ark. 236, 463 S.W.3d 710 (limits on State’s right to appeal in criminal matters)