State v. Mullin

NO. 94-313

IN THE SUPREME COURT OF THE STATE OF MONTANA
1994

STATE OF MONTANA,
Plaintiff and Appellant,

CLINTON MULLIN, JR., a/k/a
. .

CLINT MULLIN, JR.,
Defendant and Respondent.

APPEAL FROM: District Court of the Seventh J
In and for the County of
The Honorable Joe L.

COUNSEL OF RECORD:
For Appellant:
Hon. Joseph P. Mazurek, Attorney General,
Helena, Montana
Gary Ryder, Richland County Deputy Attorney,
Sidney, Montana
For Respondent:
Stephen C. Moses, Attorney at Law,
Billings, Montana

Submitted on Briefs: November 10, 1994

Decided: December 0 , 1994
Filed:
Justice Terry N. Trieweiler delivered the opinion of the Court.
On March 29, 1994, defendant Clinton Mullin, Jr., was charged
by amended information in the District Court for the Seventh
Judicial District in Richland County with felony theft, in
violation of S 45-6-301(3)(b), MCA, and alternatively with felony
theft, in violation of 5 45-6-301(1)(b), MCA. On April 14, 1994,
Mullin moved to dismiss the charges on the basis they were barred
by the statute of limitations. On June 9, 1994, the District Court
granted Mullin's April 14 motion to dismiss. The State appeals.
We affirm the order of the District Court.
The issue on appeal is:
Did the District Court err when it concluded that felony theft
was not continuous conduct for purposes of applying the statute of
limitations?
FACTUAL BACKGROUND
On or about January 12, 1988, an individual named Red Machett
reported two snowmobiles stolen from the Well Pro Shop yard in
Williams County, North Dakota. Six years later, on February 7 ,
1994, Arnie Hove, the County Attorney of McCone County, Montana,
advised law enforcement officers in Richland County that he had
information about the missing snowmobiles.
Hove had represented Mullin in the past and leased space to
Mullin's trucking business. Hove stated that he had seen the
snowmobiles several times in the business space that he leased to
Mullin.
 Based on Hove1 affidavit, a search warrant was issued and
s
executed at the premises that Mullin leased from Hove. While
searching the premises, law enforcement officers found two
snowmobiles fitting the descriptions of the stolen snowmobiles.
On February 14, 1994, Mullin was initially charged by
information with felony theft, in violation of 8 45-6-301(3),MCA,
for purposely or knowingly obtaining control over property stolen
by another. On March 29, 1994, Mullin was charged by amended
information with felony theft, in violation of 1 45-6-301(3)(b),
MCA, for purposely or knowingly obtaining control over property
stolen by another and then concealing it, or in the alternative,
with felony theft, in violation of 1 45-6-301 (b), MCA, for
(1)
purposely of knowingly exerting unauthorized control over another's
property and then concealing it.
Mullin argued that the acts alleged in the State's information
were committed in January of 1988, and that the statute of
limitations for prosecution based on those acts expired in January
of 1993. Since the information and amended information were not
filed until early 1994, he successfully contended that the statute
of limitations for felony theft had expired and the charges should
be dismissed.
The State argues that the theft was a continuing course of
conduct, and that the five-year statute of limitations for felony
theft did not expire because Mullin continued to conceal the
property.
 DISCUSSION
Did the District Court err when it concluded that felony theft
was not continuous conduct for purposes of applying the statute of
limitations?
When we review a district court's conclusions of law, we will
uphold the district court if its interpretation of the law was
correct. In r e Marriage of Barnard (1994), 264 Mont. 103, 106, 870
P.2d 91, 93, (citing In r e Marriage of B u r r i s (1993), 258 Mont.

Theft is defined, in pertinent part, in § 45-6-301,MCA, which
provides :
(1) A person commits the offense of theft when the
person purposely or knowingly obtains or exerts
unauthorized control over property of the owner and:
. . . a

(b) purposely or knowingly uses, conceals, or
abandons the property in a manner that deprives the owner
of the property . . .
. . . .
(3) A person commits the offense of theft when the
person purposely or knowingly obtains control over stolen
property knowing the property to have been stolen by
another and:
. . . .
(b) purposely or knowingly uses, conceals, or
abandons the property in a manner that deprives the owner
of the property . . . .
Section 45-1-205(2)
(a), MCA, provides that the statute of
limitations for a felony, with the exception of homicide, is five
years from the time it is committed. Section 45-1-205(7), MCA,
provides that:
An offense is committed either when everv element
occurs or, when the offense is based upon a continuing
course of conduct, at the time when the course of conduct
 is terminated. Time starts to run on the day after the
offense is committed.
(Emphasis added.)
We have held that " [sltatutes of limitation in criminal
matters are to be liberally interpreted in favor of repose." S t a t e
v. H a m i l t o n (1992), 252 Mont. 496, 500, 830 P.2d 1264, 1267 (citing
T o u s s i e v. United S t a t e s (1970), 397 U . S . 112, 115, 90 S. Ct. 858,
860, 25 L. Ed. 2d 156, 161).
The substantive criminal statute in this case is § 45-6-301,
MCA, which pertains to felony theft. Mullin argues that, based on
the allegations in the information and Hove's affidavit, the
offense of theft was committed on January 12, 1988. Both
informations and the affidavit allege that the snowmobile thefts
occurred on that date. Mullin contends that since all elements
constituting felony theft occurred on January 12, 1988, the statute
of limitations, pursuant to §§ 45-1-205(2)(a) and -205(7), MCA,
began to run on January 13, 1988, and expired on January 13, 1993.
Section 45-1-205(8), MCA states that [a] prosecution is
commenced either when an indictment is found or an information or
complaint is filed. In this case, informations were not filed
against Mullin until February 14 and March 29, 1994, over six years
after Mullin contends the offense was committed. He argues that
since the statute of limitations was not tolled, the charges
against him must be dismissed because they are untimely.
The State, on the other hand, argues that felony theft, in
violation of § 45-6-301,MCA, is a continuing course of conduct and
that the offense was not yet llcommittedll
pursuant to § 45-1-205(7),
MCA, until the stolen property was discovered pursuant to the
execution of the State's search warrant. Therefore, the five-year
statute of limitations for felony theft had not yet expired. We
disagree.
We held in Hamilton that:
A particular offense should not be construed as
continuing I1unless the ex~licit lansuase of the
substantive criminal statute compels such a conclusion,
or the nature of the crime involved is such that [the
legislature] must assuredly have intended that it be
treated as a continuing one."
Hamilton, 830 P.2d at 1267 (quoting Toussie, 397 U.S. at 115,
90 S. Ct . at 860) (emphasis added) . The plain language of
§ 45-6-301,MCA, does not state that theft is a continuing offense.
Nor does the nature of the crime compel a conclusion that the
Legislature intended that this crime be treated as continuing.
We have also held that " [aln exception to a general statute of
limitations cannot be enlarged beyond that which its plain language
imports . . . . " Hamilton, 830 P.2d at 1268 (citing State v.
Clemens (1910), 40 Mont. 567, 569, 107 P. 896, 897).
Other courts have held that theft is not a continuing offense.
The Kansas Supreme Court has held that I1[t]he crime of theft . . .
[by obtaining unauthorized control over property] is not a
continuing offense." State v. Palmer (Kan. 1991), 810 P.2d 734,
741 (citing State v. Gainer (Kan. 1980), 608 P.2d 968). In ~ainer,
the Kansas Supreme Court relied on People v. Steinmann (Ill. App.
Ct. 1978), 373 N.E.2d 757, in which the Illinois Court of Appeals
stated that "'exertingunauthorized control over property'I1was not
a continuing offense. Gainer, 608 P.2d at 971 (quoting Steinmann,
373 N.E.2d at 762).
In State v. Webb (Fla. 19751, 311 So. 2d 190, the Second
District Court of Appeal of Florida, in reliance on the U.S.
Supreme Court's decision in Toussie, held that
the crime of receiving and concealing stolen property is
not a continuing offense and that the statute of
limitations begins to run when the crime is complete, to
wit: when the property is received and concealed with
the knowledge that the same is stolen.
Webb, 311 So. 2d at 191.
While other courts, based on the language in their state's
criminal codes, have held otherwise, see State v. Lodermeier
(S.D. 1992), 481 N.W.2d 614; State v. Lawrence (Minn. 1981), 312
N.W.2d 251, we conclude that the holdings by the Kansas, Illinois,
and Florida Courts better reflect the limitations imposed by our
prior decision in Hamilton and the U.S. Supreme Court's decision in
Toussie.
To accept the construction of § 45-6-301, MCA, suggested by
the State would be to hold, in effect, that there is no statute of
limitations applicable to the crime of theft unless the stolen
property is abandoned. We decline to do so. Such an extreme
departure from the plain language of our statute of limitations
found at § 45-1-205(2)(a), MCA, is better left to the Legislature.
We conclude that the District Court was correct in its
interpretation of the law.
 The judgment of the District Court is affirmed.

I We concur:

1 Justice John C. Harrison did not participate in this decision.