Shirley Jene Clements v. State of Arkansas

2020 Ark. App. 175, 594 S.W.3d 922

• Court: Court of Appeals of Arkansas
• Decided: March 11, 2020
• Status: Published

Opinion

Cite as 2020 Ark. App. 175 Reason: I attest to the accuracy ARKANSAS COURT OF APPEALS and integrity of this document Date: 2021-07-01 14:16:42 Foxit PhantomPDF Version: DIVISION IV 9.7.5 No. CR-19-507

Opinion Delivered: March 11, 2020

SHIRLEY JENE CLEMENTS APPELLANT APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT, V. FIRST DIVISION [NO. 60CR-16-1889] STATE OF ARKANSAS APPELLEE HONORABLE LEON N. JOHNSON, JUDGE

AFFIRMED

MIKE MURPHY, Judge

Appellant Shirley Clements was convicted by a Pulaski County jury of one count of

theft by receiving for embezzling from her employer, Refrigeration and Electric Supply

Company. On appeal, Clements argues that there is insufficient evidence to support her

conviction, her conduct arose outside the statute of limitation for the charge of theft by

receiving, and that her conduct did not constitute a continuous offense such that she should

be charged for retaining possession of the total amount that was stolen. We affirm.

Clements worked for Refrigeration and Electric Supply Company as an accounts

receivable clerk from 1997 until she was fired in March 2014. A 2013 audit of the company

revealed significant financial discrepancies, and Clements was suspected. The evidence at

trial demonstrated that she stole $402,775.50 from her employer over the course of about

four years. On appeal, Clements does not challenge the jury’s conclusion that she stole the

money; thus, an involved discussion of the facts is not necessary to decide the issues on

appeal. In fact, her three points can effectively be discussed as one issue: did the State prove

that Clements acquired possession of more than $25,000 within the three years preceding

June 1, 2016, when the State filed its first felony information.

A person commits the offense of theft by receiving if he or she receives, retains, or

disposes of stolen property of another person, knowing that the property was stolen, or

having good reason to believe the property was stolen. Ark. Code Ann. § 5-36-106(a)

(Repl. 2013). In our theft-by-receiving statute, “receiving” means “acquiring possession,

control, or title or lending on the security of the property.” Ark. Code Ann. § 5-36-106.

The offense is a Class B felony if the value of the stolen property is $25,000 or more. Ark.

Code Ann. § 5-36-106(e)(1).

A prosecution for a Class B felony shall be commenced within three years of the

commission of the offense. Ark. Code Ann. § 5-1-109(b)(2) (Supp. 2019). Subdivision (e)(1)

of this statute provides:

(e)(1) For the purposes of this section, an offense is committed either when:

(A) Every element occurs; or

(B) If a legislative purpose to prohibit a continuing course of conduct plainly appears, at the time the course of conduct or the defendant’s complicity in the course of conduct is terminated.

In a criminal prosecution, the State must prove beyond a reasonable doubt that the statute

of limitations has not expired. See Ark. Code Ann. § 5-1-111(a)(4) (Repl. 2013). When a

2 statute-of-limitations issue is reviewed on appeal, the appellate court views the evidence in

the light most favorable to the State. Talbert v. State, 367 Ark. 262, 239 S.W.3d 504 (2006).

Evidence is sufficient to support a conviction when it is substantial. Russell v. State,

2017 Ark. App. 667, 537 S.W.3d 279. Evidence is substantial when it is of sufficient force

and character to compel reasonable minds to reach a conclusion beyond suspicion and

conjecture. Id. Weighing of the evidence and credibility determinations likewise are made

by the trier of fact. Miller v. State, 2018 Ark. App. 478, at 3, 561 S.W.3d 345, 347. On

appeal, the evidence is viewed in the light most favorable to the verdict, with only that

evidence supporting the verdict considered. Id.

Clements argues that the State failed to prove that she, at any single time in the three

years leading up to when the charges were filed, possessed or retained $25,000 in stolen

money. Viewing the evidence in the light most favorable to the State, Clements stole small

amounts of money from her employer almost every day for five years, adding up to over

$400,000. Even accepting her argument that we must look only at the three years preceding

the information filing date, in those three years, Clements stole over $40,000. And, while it

may be true that each individual act of acquiring possession did not add up to over $25,000,

Arkansas Code Annotated section 5-36-102 provides that amounts involved in theft

committed pursuant to one scheme or course of conduct may be aggregated in determining

the grade of the offense. Theft by receiving is a continuing offense. State v. Reeves, 264 Ark.

622, 626, 574 S.W.2d 647, 649 (1978).

Clements cites Andrews v. State, 2012 Ark. App. 597, 424 S.W.3d 349, for the

proposition that multiple acts of thefts from the same person is not necessarily a scheme or

3 course of conduct for purposes of aggregation. Andrews, however, was not a case where

section 102 was discussed or applied. In Andrews, the appellant was convicted of one count

of theft and one count of first-degree criminal mischief for stealing wire from utility poles.

That is to say, he was charged with and convicted of two separate crimes discovered on

separate days. The witness testified about the total value lost, and this court concluded that

the jury had to speculate to determine if the appellant, in fact, exercised control over

property worth between $500 and $2,500 (theft) or destroyed or caused damage to property

in excess of $500 (criminal mischief). Because the jury had to speculate to determine the

value of the theft for which it convicted Andrews, we modified Andrews’s theft conviction

from a Class C felony to a Class A misdemeanor. Id. at 8–9, 424 S.W.3d at 354.

Here, Clements was charged with one crime: theft by receiving. Theft by receiving

is a continuing offense; thus, it was not erroneous to aggregate the amount and classify the

crime as a Class B felony. The State proved that the last time Clements stole money from

her employer was in February 2014; accordingly, that was when her complicity in the course

of conduct terminated. See, e.g., Reeves, supra. February 2014 was well within the time limit

for statute-of-limitations calculations for a Class B felony. For these reasons, we affirm.

Affirmed.

HARRISON and WHITEAKER, JJ., agree.

The Lane Firm, by: Jonathan T. Lane, for appellant.

Leslie Rutledge, Att’y Gen., by: Brad Newman, Ass’t Att’y Gen., for appellee.