State v. VanceState v. Vance
Derek E. Brown and Christopher D. Ballard, Attorneys for Appellee
Opinion
OLIVER, Judge:
¶1 Chris Kendall Vance Jr. was charged with one count of theft by receiving stolen property. Vance moved to dismiss the charge, arguing it was barred by the statute of limitations. The district court denied the motion, determining the charge was not time-barred because theft by receiving stolen prоperty is a continuing offense. Vance entered a conditional guilty plea, reserving the right to appeal the court‘s ruling. We conclude theft by receiving stolen property can, in some cases, constitute a continuing offеnse, and it does so in this case. We therefore affirm.
¶2 On September 8, 2021, law enforcement received a tip that Vance was in possession of a stolen skid steer.2 Two officers responded to the provided address and found the skid stеer “parked in a field.” When the officers attempted to locate an identification number on the skid steer, they “found that the two places where the VIN number should have been had been removed or scratched off.”3
¶3 While the offiсers were still examining the skid steer, Vance arrived on the scene. He “argued with” the officers, claiming that the skid steer “belonged to him and that he had owned it for four years.” But Vance was unable to provide any proof of ownership. The officers were eventually “able to obtain the serial number from the engine block,” which enabled them to positively identify the skid steer and confirm it had been reported
¶4 On June 1, 2022, the State charged Vance with one count of theft by receiving stolen property, a third-degree felony. Vance moved to dismiss, asserting the charge was “barred by the applicable statute of limitations.” Citing the general-purpose four-year statute of limitations for felony offenses established in
ISSUE AND STANDARD OF REVIEW
¶5 Vance аsserts the district court erred in holding that theft by receiving stolen property is a continuing offense. Whether an offense is considered a continuing offense is an issue of statutory construction. See State v. Taylor, 2015 UT 42, ¶ 10, 349 P.3d 696. “We give no deference to the district court‘s ruling on such an issue and instead review it for correctness.” Id.
ANALYSIS
I. Continuing Offenses
¶6 Absent certain statutory exceptions, “a prosecution for . . . a felony . . . shall be commenced within four years after it is
¶7 “To determine whether an offense is continuing, we turn first to the operative statute . . . .” State v. Kay, 2015 UT 43, ¶ 15, 349 P.3d 690, abrogated on other grounds by State v. Stewart, 2018 UT 24, 438 P.3d 515. “[W]e look to the plain meaning of the enacted text” and “consider[] that text in the context of the whole statute.” Taylor, 2015 UT 42, ¶ 14. For example, in Taylor, our supreme court concluded theft was not a continuing offense because “the key actus rеus elements of the offense—‘obtaining or exercising‘—are discrete acts that are satisfied instantaneously.” Id. ¶¶ 27, 32 (cleaned up).
¶8 As yet, no appellate court in Utah has directly answered the question of whether theft by receiving stolen property is а continuing offense. In Taylor, the court acknowledged in a footnote that unlike theft, theft by receiving stolen property “includes an actus reus element of retaining stolen property.” Id. ¶ 26 n.31 (cleaned up). It went on to state, in dicta, “This case would be different if that provision were at issue.” Id. So with that starting point in mind, we first turn to the text of the statute and then to the facts of the present case.
A. Theft by Receiving Stolen Property
¶9 Utah‘s theft by receiving stolen property statute is violated by a person who
receivеs, retains, or disposes of the property of another knowing that the property is stolen, or believing that the property is probably stolen, or who conceals, sells, withholds, or aids in concealing, selling, or withholding the property from the owner, knowing or believing the property to be stolen, intending to deprive the owner of the property.
¶10 The plain meaning of the term “receives” does not indicate a continuing offense. See Receive, Merriam-Webster Dictionary, https://www.merriam-webster.com/dictionary/receive [https://perma.cc/CEF7-EVP6] (defining “receive” as “to come into possession of“). The statute itself defines “receives” to mean “aсquiring possession, control, title, or lending on the security of the property.”
¶12 Thus, in cases where a defendant commits the offense by receiving stolen рroperty, it is not a continuing offense. But in cases where a defendant commits the offense by retaining stolen property, that offense will be deemed a continuing offense.5
¶13 Vance resists this conclusion. Pointing to State v. Hummel, 2017 UT 19, 393 P.3d 314, Vance argues that theft by receiving stolen property can never be a continuing offense. In Hummel, when addressing a jury unanimity challenge, our supreme court held that “in Utah there is a single crime of theft” and, thus, the diverse variants of theft laid out in
¶14 Although Hummel was decided in 2017, two years after the court issued its decision in Taylor, Hummel makes no mention of Taylor. Nor does it make any mention of theft by receiving stolen property. Indeed, while both cases examined Utah‘s theft statutes, the two cases involved very different contexts—Hummel addressed jury unanimity while Taylor addressed the applicable statute of limitations. Thus, the supreme court in Hummel had no need to examine the court‘s previous expression in Taylor of a distinction between theft and theft by receiving stolen property for statute-of-limitations purposes.6 But even if it had, it is not clear to us that there is actual tension between the two decisions because the statute of limitations is not the same as the constitutional requirement for unanimity, it is “a filing deadline in a district court.” State v. Rettig, 2017 UT 83, ¶ 58 n.13, 416 P.3d 520 (cleaned up). And as explained above, there is a meaningful difference between the various actus rei enumerated in the theft by receiving stolen property statute when applying the statute of
B. Application
¶15 Vance asserts that even if theft by receiving stolen property can be a continuing offense, it is not one in his case because the only actus reus at issue is the act of “receiving” stolen property. We are not persuaded.
¶16 Vance argues that his actions here could not constitute a continuing offense. When Vance pleaded guilty, he admitted he “came into possessiоn of the skid steer no later than March or April of 2018.” Relying on that admission, he argues his “receipt of the skid steer” was completed no later than April 30, 2018, and it would be “absurd” to view him as having “perpetually received the skid steer” beyond that dаte.
¶17 But in making this argument, Vance ignores his other factual admissions. Of consequence here, he admitted that when the skid steer was located on September 8, 2021, he “argued with police that it belonged to him and that he had owned it for four years.” (Emphasis added.) If Vance (1) “came into possession of” the skid steer no later than April 2018, (2) claimed to be in possession of the skid steer in September 2021, and (3) alleged continuous ownership of the skid steer for the entire intervening period, then it necessarily follows that he “retained” the stolen skid steer.
¶18 Thus, on the facts of this case, we conclude Vance admitted to “retaining” stolen property, a continuing offense that did not cease to be committed until September 8, 2021. Accordingly, the State‘s prosecution, commenced on June 1, 2022, was not barred by the statute of limitations.
¶19 Whether theft by receiving stolen property is considered a continuing offense depends on the actus reus involved in a particular case. Because Vance was сharged with and admitted to facts that constitute a continuing offense—namely, “retaining” stolen property—we affirm the district court‘s denial of Vance‘s motion to dismiss.