This opinion is subject to revision before final

publication in the Pacific Reporter

2015 UT 42

IN THE

SUPREME COURT OF THE STATE OF UTAH

STATE OF UTAH,

Appellee,

v.

ROGER EDWARD TAYLOR,

Appellant.

No. 20130556

Filed March 31, 2015

Third District, Salt Lake

No. 111906891

The Honorable Elizabeth A. Hruby-Mills

Attorneys:

Sean D. Reyes, Att’y Gen., John J. Nielsen, Asst. Att’y Gen., 

Salt Lake City, for appellee

Joan C. Watt, Michael D. Misner, Salt Lake City, for appellant

JUSTICE PARRISH authored the opinion of the Court, in which

CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE LEE,

JUSTICE DURHAM, and JUDGE ORME joined.

Due to his retirement, JUSTICE NEHRING did not participate herein;

COURT OF APPEALS JUDGE GREGORY K. ORME sat.

JUSTICE DENO G. HIMONAS became a member of the Court on

February 13, 2015, after oral argument in this matter, and

accordingly did not participate.

JUSTICE PARRISH, opinion of the Court:

INTRODUCTION

¶1 Roger Taylor was charged with multiple counts of securities

fraud and theft on the basis of his alleged operation of a Ponzi

scheme. Mr. Taylor asked the district court to dismiss eight of the ten

charges based on the applicable statutes of limitations. The district

court concluded that securities fraud and theft are continuing

offenses and evaluated the timeliness ofthe charges accordingly. On

interlocutory review, we hold that securities fraud and theft are not
STATE v. TAYLOR

Opinion of the Court

 In a companion case issued today, we address the same

1

question with respect to the communications fraud statute, Utah

Code section 76-10-1801. State v. Kay, 2015 UT 43, __ P.3d __.

 Because this case comes to us on an interlocutory appeal, the 2

facts have yet to be determined. On interlocutory review, we recount

the facts as alleged and in a light most favorable to the ruling below.

Cf. Peck v. State, 2008 UT 39, ¶ 2, 191 P.3d 4 (“On appeal from a

motion to dismiss, ‘we review the facts only as they are alleged in

the complaint.’ We accept the factual allegations as true and draw all

reasonable inferences from those facts in a light most favorable to

the plaintiff.”).

2

continuing offenses and therefore remand the case to the district

court to re-evaluate the timeliness of the charges in light of our

holding.1

BACKGROUND

¶2 Mr. Taylor and Richard Smith are alleged to have operated

a Ponzi scheme in which multiple investors lost large sums. They 2

initiated the alleged scheme by founding an investment firm known

as Ascendus Capital Management. Once clients deposited money

with Ascendus, Mr. Taylor and Mr. Smith created false account

statements reflecting investment gains to lure further funds from

their clients. Later, Mr. Taylor and Mr. Smith founded the Franklin

Forbes Composite Fund. They asked existing clients to transfer

funds to Franklin Forbes, assuring them that the investment was

safe. Mr. Taylor and Mr. Smith falsely represented that Franklin

Forbes would be investing in Lyxor, a French asset-management

company, and that the investment would be guaranteed by Société

Générale, a well-known and prestigious French bank. Instead, Mr.

Taylor and Mr. Smith placed the funds in a larger Ponzi scheme in

California, used some ofthe funds to pay other investors, and raided

the remaining funds to pay personal expenses. Mr. Taylor and Mr.

Smith again created false account statements showing investment

gains to lull investors. Eventually, however, the Ponzi scheme

collapsed and the “guaranteed” investments were lost.

¶3 On August 13, 2010, the State filed an information charging

Mr. Taylor with two counts of securities fraud and one count of

abuse, neglect, or exploitation of the elderly. One year later, on

August 30, 2011, the State amended the information. Less than one

month later, when the State failed to appear at a scheduling

conference, the district court dismissed the case without prejudice.
Cite as: 2015 UT 42

Opinion of the Court

3

The State refiled a substantially similar information the same day,

September 22, 2011, charging Mr. Taylor with five counts of

securities fraud, four counts of theft, and one count of engaging in

a pattern of unlawful activity, all second-degree felonies. It is this

last information that is at issue here.

¶4 Mr. Taylor filed a motion to dismiss, claiming that four of

the five securities fraud charges and the four theft charges were time

barred. The district court denied the motion as to the four securities

fraud charges and three of the theft charges after ruling that

securities fraud and theft are both continuing offenses for which the

limitations period did not begin to run until Mr. Taylor sent the last

false account statement to investors.

¶5 The four securities fraud charges at issue in this case are

based upon four separate investments in Franklin Forbes. Counts 1

and 2 are based on two investments by A.D. She began investing

through Ascendus as early as June 2003 and, over the years, invested

about $600,000. On the basis of false information from Mr. Taylor,

A.D. transferred her Ascendus investment to Franklin Forbes in

February 2006. And in July 2006, she invested an additional $401,000.

Mr. Taylor then sent A.D. false account statements showing

investment gains through December 2007.

¶6 Counts 6 and 7 arise from similar transfers by other

investors. The factual predicate for count 6 is an $800,000 investment

by W.M. and K.M. that they moved from their Ascendus account to

Franklin Forbes in February 2006. W.M. and K.M. received false

account statements through May 2008. The factual predicate for

count 7 is an investment by A.W., who transferred almost $1.8

million from Ascendus to Franklin Forbes in February 2006. A.W.

received false account statements through April 2007.

¶7 The three theft charges at issue are based on Mr. Taylor’s

unauthorized use or withdrawal of funds from Franklin Forbes.

Count 5 arises from Mr. Taylor’s unauthorized use of funds from

E.K. In March 2007, E.K. invested approximately $330,000 in

Franklin Forbes with express direction that it be used for investment.

But Mr. Taylor withdrew the funds soon thereafter and used them

for another purpose. Mr. Taylor then sent E.K. false account

statements showing investment gains through April 2008.

¶8 Counts 9 and 10 arise from Mr. Taylor’s misuse and

withdrawal of funds belonging to unknown investors. Count 9 arises

from misuse of over $1.5 million removed from Franklin Forbes as
STATE v. TAYLOR

Opinion of the Court

State v. Lusk, 2001 UT 102, ¶¶ 10–11, 37 P.3d 1103. 3

 UTAH CODE § 76-1-302(1); see also id. § 61-1-21.1(1) (“No 4

indictment or information may be returned . . . [for securities fraud]

more than five years after the alleged violation.”).

See id. § 76-1-302; see also Russell Packard Dev., Inc. v. Carson,

5

2005 UT 14, ¶ 20, 108 P.3d 741 (“As a general rule, a statute of

(continued...)

4

late as January 2008. And Count 10 is based on a final withdrawal of

funds from Franklin Forbes by Mr. Taylor as late as August 2008.

¶9 Following the district court’s denial of his motion to dismiss,

Mr. Taylor filed a petition for interlocutory review, which the court

of appeals granted. It then certified the interlocutory appeal to this

court. We have jurisdiction pursuant to Utah Code section 78A-3-

102(3)(b).

STANDARD OF REVIEW

¶10 The issue of whether securities fraud and theft are

continuing offenses is one of statutory construction. We give no

deference to the district court’s ruling on such an issue and instead

review it for correctness.3

ANALYSIS

¶11 The district court concluded that securities fraud, in

violation of Utah Code section 61-1-1, and theft, in violation of Utah

Code section 76-6-404, are continuing offenses. On the basis of that

conclusion, the district court determined that none of the securities

fraud counts and only one of the four theft counts were time barred.

Mr. Taylor contends that neither securities fraud nor theft is a

continuing offense and, therefore, that the charges are not timely.

We agree with Mr. Taylor that securities fraud and theft are not

continuing offenses and therefore remand the case to the district

court to re-evaluate the timeliness of the charges.

I. THE TEST FOR CONTINUING OFFENSES

¶12 We are asked to determine whether the criminal charges in

this case are time barred. In general, “a prosecution for” a felony,

misdemeanor, or infraction “shall be commenced within” four, two,

or one year, respectively, “after it is committed.” If the State does

4

not commence prosecution within this period, any criminal liability

will expire. The limitations period begins to run when a crime is

“committed.” A crime is committed when every “element of the 5
Cite as: 2015 UT 42

Opinion of the Court

(...continued) 5

limitations begins to run upon the happening of the last event

necessary to complete the cause of action.” (internal quotation marks

omitted)).

See State v. Roth, 2001 UT 103, ¶ 14, 37 P.3d 1099 (surveying 6

cases and holding that the crime of escape was complete when the

defendant left official custody without authorization).

 22 C.J.S. Criminal Law § 256 (2015) (“Although normally a statute 7

of limitation begins to run from the time the crime is complete, if the

crime is a continuing one the statute does not begin to run until the

continuous commitment of the crime ceases.”); see also WAYNE R.

LAFAVE ET AL., 5 CRIMINAL PROCEDURE § 18.5(a) (3d ed. 2007).

 397 U.S. 112, 114–15 (1970). 8

Id. at 115. 9

See, e.g., People v. Thoro Prods. Co., 70 P.3d 1188, 1193–94 (Colo. 10

2003); State v. Francois, 577 N.W.2d 417, 418 (Iowa 1998); State v.

Gainer, 608 P.2d 968, 970 (Kan. 1980); State v. Mullin, 886 P.2d 376,

(continued...)

5

offense” is met. But the Legislature has structured the elements of 6

some offenses in such a way that a perpetrator continues to commit

the offense so long as he continues to satisfy the elements. These

offenses are considered continuing offenses. In the case of a

continuing offense, while criminal liability attaches when every

element is satisfied, the statute of limitations does not begin to run

until the perpetrator ceases to satisfy the elements of the crime. At 7

that point, the whole arc of criminal conduct is aggregated into a

single criminal violation.

¶13 In determining whether a crime is a continuing offense, the

United States Supreme Court looks to the intent of Congress. In

Toussie v. United States, it recognized the inherent tension between

the policies underpinning statutes of limitations—preventing

prosecution of stale claims and motivating prompt investigation of

crimes—and the imposition of criminal liability for proscribed acts.8

With that tension in mind, the Court reasoned that criminal statutes

should not be interpreted to create a continuing offense “unless the

explicit language of the substantive criminal statute compels such a

conclusion, or the nature of the crime involved is such that Congress

must assuredly have intended that it be treated as a continuing

one.” Other states considering this question have looked to Toussie,

9

either adopting its language or citing its reasoning.10
STATE v. TAYLOR

Opinion of the Court

(...continued) 10

378 (Mont. 1994); State v. Nuss, 454 N.W.2d 482, 485–86 (Neb. 1990);

State v. Legg, 9 S.W.3d 111, 116 (Tenn. 1999); John v. State,

291 N.W.2d 502, 505 (Wis. 1980); see also 22 C.J.S. Criminal Law § 256

(2015) (“Whether or not a crime is a continuing offense depends

upon the legislative intent in defining the crime . . . .”).

LeBeau v. State, 2014 UT 39, ¶ 20, 337 P.3d 254. 11

See id. 12

See id. 13

6

¶14 The Toussie analysis is generally consistent with our longstanding approach to statutory construction. Our objective in

construing statutes is to effectuate the intent of the Legislature as

expressed in the statutory text. Thus, to determine whether a 11

criminal statute creates a continuing offense, we look to the plain

meaning of the enacted text, considering that text in the context of

the whole statute. And we harmonize the statute with related

12

provisions of the code, including any applicable statutes of

limitations.13

¶15 In sum, we respect the legislative policy choice reflected in

a clear statute of limitations and will effectuate that protection

except in those instances where we find clear, contrary legislative

intent in the terms of the substantive criminal statute at issue. In this

case, we are asked to determine whether securities fraud and theft

are continuing offenses. We turn first to securities fraud and then to

theft.

II. SECURITIES FRAUD IS NOT A CONTINUING OFFENSE

¶16 The district court concluded that securities fraud, in

violation of Utah Code section 61-1-1, is a continuing offense. On the

basis of that conclusion, it determined that the securities fraud

charges against Mr. Taylor were not time barred because Mr. Taylor

continued the crimes by sending false account statements to lull the

investors after the securities transactions were complete. Mr. Taylor

argues that the district court’s determination was in error because

the statutory language criminalizing securities fraud does not give

rise to a continuing offense. Therefore, the statute of limitations

began to run at the time that the securities transactions were

complete. We agree with Mr. Taylor that securities fraud is not a

continuing offense.
Cite as: 2015 UT 42

Opinion of the Court

 UTAH CODE § 61-1-1 (emphasis added).

14

Id. § 61-1-21.1. In the case of the generally-applicable statutes of 15

limitations, the Legislature has provided a safety valve for

undiscovered fraud offenses that extends the limitations period for

up to three years so long as the prosecution is commenced within

one year of the fraud being reported to law enforcement. Id. § 76-1-

303(1). But that extension is not available in the case of securities

fraud, which is governed by its own statute of limitations for which

the Legislature has not provided a similar extension mechanism.

Id. § 61-1-1. 16

Id. § 61-1-1(2) (emphasis added). 17

7

¶17 The Utah Uniform Securities Act, patterned after section 101

of the Uniform Securities Act of 1956, provides that

[i]t is unlawful for any person, in connection with the

offer, sale, or purchase of any security, directly or

indirectly to:

(1) employ any device, scheme, or artifice to defraud;

(2) make any untrue statement of a material fact or to

omit to state a materialfact necessary in order to make

the statements made, in the light of the circumstances

under which they are made, not misleading; or

(3) engage in any act, practice, or course of business

which operates or would operate as a fraud or deceit

upon any person.14

The act contains a five year statute of limitations that expressly

supercedes the general criminal statute of limitations.15

¶18 The text of the Utah Uniform Securities Act does not suggest

that the Legislature intended securities fraud to constitute a

continuing offense. To the contrary, the offense is anchored in the

discrete events of an “offer, sale, or purchase of any security.” And 16

subsection (2) similarly identifies the discrete acts of “mak[ing] any

untrue statement [or] . . . omitt[ing] to state a material fact.”17

¶19 In arguing that the Legislature intended securities fraud to

constitute a continuing offense, the State points to subsections (1)

and (3), which speak of “employ[ing] any . . . scheme . . . to defraud”

and “engag[ing] in any . . . practice[] or course of business which
STATE v. TAYLOR

Opinion of the Court

Id. § 61-1-1(1), (3).

18

Id. § 61-1-1 (emphasis added).

19

134 S. Ct. 1058, 1066 (2014) (emphasis added) (construing 20

15 U.S.C. § 78bb(f)(1)(A)).

Id. 21

 UTAH CODE § 61-1-1. 22

Chadbourne & Parke, 134 S. Ct. at 1066. 23

8

operates . . . as a fraud.” It argues that these phrases give rise to a 18

continuing offense. We disagree. While these phrases refer to

activities that may continue for a period of time, their presence does

not necessarily compel the conclusion that securities fraud is a

continuing offense. Rather, they must be read in concert with the

statutory requirement that any actionable fraud take place “in

connection with the offer, sale, or purchase of any security.”19

¶20 The United States Supreme Court has construed similar

language in a federal statute to require that any scheme to defraud

be material to a purchase or sale of a covered security. In Chadbourne

& Parke LLP v. Troice, the Court considered the scope of the statutory

phrase “‘misrepresentation or omission of a material fact in

connection with the purchase or sale of a covered security.’” On the 20

basis of “a natural reading of the Act’s language,” the Court held

that “[a] fraudulent misrepresentation or omission is not made ‘in

connection with’ such a ‘purchase or sale of a covered security’

unless it is material to a decision by one or more individuals (other

than the fraudster) to buy or to sell a ‘covered security.’” The 21

similar language of the Utah Uniform Securities Act compels a

similar conclusion. An activity listed in subsections (1) through (3)

cannot be “in connection with [an] offer, sale, or purchase of any

security” “unless it is material to a decision by one or more 22

individuals (other than the fraudster).”23

¶21 By definition, an act occurring subsequent to a securities

transaction cannot be material to the decision to engage in that

transaction. It therefore cannot satisfy the elements of securities

fraud. Thus, the language of the Utah Uniform Securities Act

dictates that the commission of securities fraud terminates and the

statute of limitations begins to run when the offer, sale, or purchase

is complete, even if some of the activities listed in subsections (1) and
Cite as: 2015 UT 42

Opinion of the Court

See United States v. United Med. & Surgical Supply Corp.,

24

989 F.2d 1390, 1398 (4th Cir. 1993) (“Mail or securities fraud is not

complete, and the statute of limitations does not begin to run, until

the sale of the security or the use of the mail. Thus, a securities and

mail fraud prosecution falls within the statute of limitations if the

use of the mails or the sale of the security occurred within five years

of the indictment.” (citation omitted) (citing United States v. Read,

658 F.2d 1225, 1240 (7th Cir. 1981); United States v. Dunn,

961 F.2d 648, 650 (7th Cir. 1992); United States v. Scop, 846 F.2d 135,

139 (2d Cir. 1988); United States v. Perholtz, 842 F.2d 343, 364–65

(D.C. Cir. 1988) (per curiam); United States v. Ashdown, 509 F.2d 793,

798 (5th Cir. 1975); United States v. Blosser, 440 F.2d 697, 699 (10th Cir.

1971))).

 UTAH CODE § 76-10-1801(1). 25

Id. § 76-10-1801(3). 26

See, e.g., id. § 76-6-404 (Theft); id. § 76-6-405 (Theft by 27

deception); id. § 76-6-406 (Theft by extortion); id. § 76-6-408

(Receiving stolen property).

Id. § 76-10-1603. 28

9

(3) continue thereafter.24

¶22 Related Utah statutes also support our conclusion that the

Utah Uniform Securities Act does not create a continuing offense.

The discrete acts that often follow securities fraud in a broader arc

of fraudulent conduct—like the false account statements in this

case—are more appropriately charged under related statutes, such

as the communications fraud statute, Utah Code section 76-10-1801.

Indeed, that provision specifically criminalizes communications

“concealing [a] scheme or artifice.” And with that offense, 25

“[r]eliance on the part of any person is not a necessary element.”26

Thus, the separate crime of communications fraud captures

subsequent communication designed to conceal securities fraud.

Similarly, one of the various theft statutes may apply if the

perpetrator takes or disposes of the invested funds with the requisite

intent. Finally, in cases involving three or more episodes of 27

unlawful activity, such as securities fraud, communications fraud,

and theft, the State may bring charges for engaging in a pattern of

unlawful activity. The Legislature’s enactment of criminal offenses 28

that more precisely capture the discrete acts that the State contends

constitute continuation of securities fraud confirms our conclusion

that the Legislature did not intend for securities fraud to be a
STATE v. TAYLOR

Opinion of the Court

Id. § 61-1-21.1. We are unable to engage in the determination of 29

timeliness because the record on interlocutory appeal is incomplete

and not all relevant facts have been established at this early point in

the proceedings.

 Courts in our sister states have reached the same conclusion 30

with regard to similarly worded statutes. See, e.g., State v. Harrison,

561 N.W.2d 28, 29 (Iowa 1997) (per curiam); State v. Gainer,

608 P.2d 968, 971 (Kan. 1980); State v. Mullin, 886 P.2d 376, 378

(Mont. 1994).

10

continuing offense. Instead, the Legislature has criminalized each

discrete unit of criminal activity and, in extended cases, the pattern

of unlawful activity itself.

¶23 In this case, the district court evaluated the timeliness of the

securities fraud charges on the basis of its erroneous conclusion that

securities fraud is a continuing offense. In light of our contrary

holding, we remand this case to the district court to engage in a

factual assessment to determine for each count of securities fraud

when the offer, sale, or purchase took place and whether the charge

was filed not more than five years later.29

¶24 In sum, we hold that securities fraud, in violation of Utah

Code section 61-1-1, is not a continuing offense. Instead, the crime of

securities fraud is complete and the statute of limitations begins to

run when an “offer, sale, or purchase” is made “in connection with”

an activity specified in subsections (1) through (3).

III. THEFT IS NOT A CONTINUING OFFENSE

¶25 The district court concluded that theft, in violation of Utah

Code section 76-6-404, is a continuing offense. On the basis of that

conclusion, the district court determined that only one of the theft

counts are time barred because Mr. Taylor continued to commit theft

by sending false account statements to conceal his crime. Mr. Taylor

argues that the district court erred because the statutory language

does not convey a clear legislative intent that theft is a continuing

offense. Rather, he contends that the statute of limitations began to

run at the time that he first obtained or exercised unauthorized

control over the funds. We agree with Mr. Taylor that theft is not a

continuing offense.30

¶26 Under the Utah Criminal Code,

[a] person commits theft if he obtains or exercises

unauthorized control over the property of another
Cite as: 2015 UT 42

Opinion of the Court

 UTAH CODE § 76-6-404. The State makes several arguments 31

based on other variants of theft, such as theft by receiving stolen

property. See id. § 76-6-408. That section includes an actus reus

element of “retain[ing]” stolen property. This case would be

different if that provision were at issue. But Mr. Taylor was charged

under section 76-6-404. We therefore focus our analysis on the text

of that section, which does not contain such language.

Id. § 76-1-302. 32

Id. § 76-6-404. 33

State v. Eagle, 611 P.2d 1211, 1213 (Utah 1980). 34

 UTAH CODE § 76-6-404. 35

See id. § 76-6-401(3). 36

11

with a purpose to deprive him thereof.31

Theft is subject to the general criminal statute of limitations.32

¶27 We see nothing in the statutory language to suggest that

theft is a continuing offense. The key actus reus elements of the

offense—“obtain[ing] or exercis[ing]”—are discrete acts that are

satisfied instantaneously. And the commission of the crime is 33

complete when a person obtains or exercises that control with the

requisite intent.34

¶28 In arguing that theft is a continuing offense, the State focuses

on the statutory language indicating that a person commits theft if

he obtains property with a “purpose to deprive.” The State reasons 35

that a purpose to deprive may continue beyond the discrete act of

obtaining or exercising control. But the phrase “purpose to deprive”

simply defines the mens rea element. And that element either exists 36

or does not exist at the time that the person obtains or exercises

unauthorized control of another’s property. That phrase does not

suggest that the Legislature intended theft to constitute a continuing

offense.

¶29 Related provisions of the code support the conclusion that

theft is not a continuing offense. The acts of “dispos[ing],”

“conceal[ing], sell[ing], [or] withhold[ing]” stolen property are more

appropriately charged under the receiving stolen property statute,

Utah Code section 76-6-408. Thus, the Legislature has provided an

additional statute that criminalizes subsequent activity.

¶30 In ruling that theft is a continuing offense, the district court

analogized to the single larceny rule, which we recognized in State
STATE v. TAYLOR

Opinion of the Court

 927 P.2d 638 (Utah 1996). 37

 620 P.2d 515 (Utah 1980). 38

See Crosby, 927 P.2d at 645–46; Kimbel, 620 P.2d at 518. 39

 Other states have come to a similar conclusion. See, e.g.,

40

Harrison, 561 N.W.2d at 29–30.

 UTAH CODE § 76-1-302(1)(a).

41

12

v. Crosby and State v. Kimbel. The single larceny rule, as applied in 37 38

those cases, allows the aggregation of multiple takings over a period

of time into a single charge of theft. But that rule and those cases 39

are inapplicable to the charges in this case, which each involve only

a single taking. Indeed, nothing in those cases supports the

proposition that a single commission of theft continues beyond the

last taking.40

¶31 The district court’s determination that the theft charges were

timely was premised upon its erroneous conclusion that theft is a

continuing offense. Because we reverse the district court on that

issue, we remand this case to the district court to reassess the

timeliness of the theft charges in light of our holding. That court is

better able to determine for each theft count when Mr. Taylor

obtained or exercised unauthorized control of another’s property

and whether the corresponding charge was filed within four years

of that date.41

¶32 In sum, we hold that theft, in violation of Utah Code section

76-6-404, is not a continuing offense. The crime of theft is complete

and the statute of limitations begins to run when a person “obtains

or exercises unauthorized control” over the property of another with

the requisite intent.

CONCLUSION

¶33 The district court concluded that securities fraud, in

violation of Utah Code section 61-1-1, and theft, in violation of Utah

code section 76-6-404, are continuing offenses. This conclusion was

in error. We therefore reverse the ruling of the district court and

remand the matter for further proceedings consistent with this

opinion.