State v. Kay, 349 P.3d 690

In 2006 the Fowleses paid contractor Rockie Kay $135,000 to build their home; Kay allegedly used the funds for business expenses rather than construction.
Kay completed construction in April 2007 but avoided closing and later admitted cost overruns; lender foreclosed in June 2008.
The Fowleses reported the conduct in July 2008; the State charged Kay in June 2011 (Kay I) with four counts of communications fraud (amended from theft by deception) and a pattern of unlawful activity predicated on those counts.
The district court dismissed Kay I as barred by the four-year statute of limitations, holding communications fraud is not a continuing offense because each communication is a separate completed crime.
The State refiled (Kay II) in February 2012 alleging communications-fraud counts based on e‑mails from March–June 2008 and a pattern count; the district court dismissed Kay II as an improper re-prosecution barred by the prior dismissal.
The Utah Supreme Court affirmed: communications fraud is complete when the fraudulent communication is made, the statute of limitations began to run at each communication, and Kay II’s dismissal was not independently challenged.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether communications fraud is a continuing offense for statute-of-limitations purposes	Communications fraud is continuing because a "scheme or artifice" endures while in operation, so concealment and ongoing conduct delay the limitations period	Communications fraud is complete upon each fraudulent communication; a scheme does not prolong the limitation for already completed communications	Held: Not continuing; statute begins when each fraudulent communication is made; each communication is a separate offense
Whether Kay II was properly dismissed after Kay I dismissal	(State) If communications fraud were continuing, Kay I would be reinstated and Kay II unnecessary; otherwise did not independently contest Kay II dismissal on appeal	Kay: Kay II is barred by the earlier limitations-based dismissal and constitutes an attempt to reprosecute the same substantive offenses	Held: State failed to independently challenge Kay II; dismissal affirmed as the argument depended entirely on overturning Kay I

Toussie v. United States, 397 U.S. 112 (U.S. 1970) (limitation period principles and continuing-offense analysis)
Russell Packard Dev., Inc. v. Carson, 108 P.3d 741 (Utah 2005) (statute of limitations begins when last element occurs)
State v. Bradshaw, 152 P.3d 288 (Utah 2006) (distinguishing scheme as plan from overt acts executing it)
United States v. Blosser, 440 F.2d 697 (10th Cir. 1971) (communications as the "gist of the offense")
United States v. Kubick, 205 F.3d 1117 (9th Cir. 1999) (definition of a continuing offense as indivisible unlawful practice)
State v. Lusk, 37 P.3d 1103 (Utah 2001) (standard of review for statutory construction issues)