from Jefferson Circuit Court (Bessemer Division) (CC-17-861)
Latrina Thomas was convicted of theft of lost property in the
first degree, a violation of § 13A-8-7, Ala. Code 1975.
She was sentenced to two years' imprisonment; the
sentence was suspended; and she was placed on five years'
evidence adduced at trial indicated the following. Between
2003 and 2014, Thomas was employed by the Bessemer Board of
Education (hereinafter "the Board") as a licensed
substitute teacher in the Bessemer school system.
Thomas's substitute-teacher license expired on June 30,
2014. Testimony indicated that the Board has two types of
employees -- regular full-time employees and substitutes.
Regular fulltime employees receive paychecks in roughly the
same amount each month; substitutes are paid only for the
days they work, so their paychecks differ depending on how
many days they work in a month. All employees, however,
including full-time employees, are paid based on time sheets
that are submitted to the Board. Evidence indicated that
substitute teachers are paid $60 for every day they work
unless they work 20 consecutive school days in the same
classroom, in which case, they are paid $125 per day.
Davis, the chief financial officer for the Board at the time
of the events at issue here,  and Pat Stewart, the chief
financial officer for the Board at the time of trial and
former supervisor of business affairs for the Board, both
testified about the discovery and investigation of what were
determined to be erroneous payments the Board made to Thomas
between 2010 and 2014. In October 2014, as the Board was
reconciling its finances for the fiscal year that ended
September 30, 2014, the payroll clerk, who had been employed
by the Board for only a few months, discovered that "an
employee was being paid that wasn't there." (R.
140.) When reconciling the finances, the Board must make sure
that all full-time employees are "assigned to a salary
schedule." (R. 240.) Thomas, although a substitute
employee, was listed on the payroll for regular full-time
employees (she was listed as a "permanent"
substitute), and she had been regularly receiving payments,
mostly via direct deposit to her bank account but some via
written check, from the Board, but she was not assigned to a
salary schedule. (R. 200.) This raised a "red flag"
for those reconciling the Board's finances. (R. 202.)
Davis and Stewart then conducted an investigation to
determine whether Thomas was a full-time employee of the
Board and whether the payments that had been made to her were
the investigation, it was discovered that Thomas had first
been placed on the payroll for full-time employees in 2010
and that she had regularly been receiving erroneous payments
since that time, although the error was not discovered until
2014. Davis posited that the error had not been discovered
earlier because the former payroll clerk would remove
Thomas's name from the full-time payroll at the end of
the fiscal year and then, after the finances for that fiscal
year had been reconciled, the payroll clerk would put
Thomas's name back on the full-time payroll. Davis spoke
with the principals of some of the schools where Thomas had
supposedly worked as a substitute. One principal indicated
that Thomas had never been a substitute teacher there, and
another indicated that Thomas had at one time been a
substitute teacher at the school, but that she had not been a
substitute in several years. According to Davis, he
"verif[ied] with several people that [Thomas] was not an
employee of the system" (R. 146), and he determined that
"she was paid when she didn't actually work for
us." (R. 149.)
indicated that between September 2011 and September 2013,
Thomas was erroneously paid $14, 949.49, and that between
December 2013 and September 2014, Thomas was erroneously paid
$11, 310. Between May 2010 and September 2014, Thomas was
erroneously paid a total of $46, 779.49 in gross pay. Some of
the payments to Thomas were made during the summer months of
2012 and 2013, during which time Thomas would not have been
working, even as a substitute teacher, because, according to
Davis, when a teacher is absent from summer school, the Board
does not hire substitutes but uses other summer-school
teachers to fill in. In addition, no time sheets were found
relating to Thomas that would have supported the payments
that had been made to her.
discussed the issue with the personnel department and learned
that Thomas's substitute-teacher license had expired and
that the copy of her driver's license the Board had on
file had also expired. Thomas was then called to the
Board's office under the guise of updating her file with
her current driver's license. After she updated her file,
she was escorted to Davis's office, where Davis spoke
with her about the erroneous payments. When Davis explained
to Thomas that she had been paid in error, Thomas
acknowledged that she knew she had been paid by the Board
when she did not work, and said that "she thought it was
a gift from God." (R. 170.) Davis said that he asked
Thomas if she had colluded with the former payroll clerk to
obtain the payments and Thomas denied having done so.
According to Davis, Thomas said she was sorry and that she
was responsible for raising her nieces and nephews, and she
mentioned making arrangements to pay back the money, but
Davis told Thomas that he was not authorized to make any
agreement with her and that he had to report the erroneous
payments to the Board. Davis testified that, although Thomas
later contacted him again and asked to speak to him about the
situation "in private," when he informed her that
he was unwilling to meet with her without another person
present as a witness, he never heard from Thomas again. (R.
State introduced into evidence records from the Board that
showed the payments that had been made to Thomas between 2010
and 2014, as well as payments that had been made to Thomas
before 2010. Those records indicate that, before 2010, Thomas
was paid sporadically on average a net amount between $300
and $400 as a substitute teacher, but that after 2010, Thomas
was paid on average a net amount of approximately $1, 000 on
a regular, almost monthly, basis. The last erroneous payment
Thomas received was $1, 080 on September 30, 2014. The State
also introduced into evidence the W-2 tax forms for 2012 and
2013 that the Board had generated for Thomas, and
Thomas's bank statements reflecting direct deposits from
the Board between 2010 and 2014.
defense, Thomas called her twin cousins, Kiara Thomas and
Tiara Thomas to testify. Kiara and Tiara both attended
Bessemer High School and graduated in 2014. Tiara testified
that during the 2011-12 school year, Thomas was a substitute
teacher in one of her classes "for a day or so."
(R. 277.) Both Kiara and Tiara also testified that during the
2013-14 school year, they saw Thomas at school one day
substituting for a science teacher.
both sides had rested and the trial court had instructed the
jury on the applicable principles of law, the jury found
Thomas guilty of theft of lost property in the first degree
as charged in the indictment. This appeal followed.
contends that the trial court erred in denying her motion to
dismiss the indictment on the ground that her prosecution was
barred by the statute of limitations.
indictment was returned on February 3, 2017, and charged, in
"KAMECIA LATRINA THOMAS, whose name is to the Grand Jury
otherwise unknown, did on or between MAY 25, 2010, to
SEPTEMBER 30, 2014, actively obtain or exert control over
U.S. CURRENCY, of the lawful currency of the United States of
America, a more particular denomination and description of
which is unknown to the Grand Jury, in an amount in excess of
two thousand five hundred dollars, the property of BESSEMER
BOARD OF EDUCATION, which the said KAMECIA LATRINA THOMAS
knew to have been lost or mislaid, or to have been delivered
under a mistake as to the identity of the recipient or as to
the nature or the amount of the property, and with the intent
to deprive BESSEMER BOARD OF EDUCATION permanently of said
property, the KAMECIA LATRINA THOMAS did fail to take
reasonable measures to discover and notify the owner.
(C. 6; capitalization in original.) In response to
Thomas's motion to dismiss the indictment on
statute-of-limitations grounds, the State moved to amend the
indictment to change the date of the commencement of the
crime from May 25, 2010, to February 3, 2012, so that all the
transactions charged in the indictment fell within the
five-year statute of limitations for felonies in §
15-3-1, Ala. Code 1975. See Act No. 2014-348, Ala. Acts 2014
(increasing the statute of limitations for felonies from
three years after the commission of the offense to five years
effective July 1, 2014). The trial court granted the
State's motion to amend the indictment and denied
Thomas's motion to dismiss.
appeal, Thomas argues that theft of lost property is not a
continuing offense and that the former three-year statute of
limitations, not the current five-year statute of
limitations, is applicable to her case. She also argues that
"the majority of the period of time set forth in the ...
[i]ndictment encompassed allegations occurring outside the
statute of limitations" and that the State "was
barred from issuing the [i]ndictment at issue to events
occurring" outside the three-year statute of
limitations. (Thomas's brief, pp. 16 and 19.) We find it
unnecessary to address whether the former three-year or the
current five-year statute of limitations is applicable to
Thomas because, even if Thomas is correct and the former
three-year statute of limitations is applicable, we conclude,
contrary to Thomas's contention, that theft of lost
property is a continuing offense and that the indictment was
timely returned on February 3, 2017, within three years of
the last transaction on September 30, 2014.
"It is settled that an offense may be of a continuing
nature. Where the acts, when consolidated, constitute but one
offense, that crime should be the one with which the accused
is charged. Pendergast v. United States, 317 U.S.
412, 63 S.Ct. 268, 87 L.Ed. 368 (1943); Troup v.
State, 51 Okl. Cr. 438, 2 P.2d 591 (1931); and 35 C.J.S.
False Pretenses § 22. Similarly, if several
acts form but one element of an offense, the offense is not
complete until the last of such acts has been performed.
United States v. Ashdown, 509 F.2d 793 (5th Cir.
1975); United States v. Andreas, 458 F.2d 491 (8th
Cir. 1972); Carroll v. United States, 326 F.2d 72
(9th Cir. 1963); and 22 C.J.S. Criminal Law §
227(1). Cf., Johnson v. State, 49 Ala.App. 389, 272
So.2d 597 (1973); and Hendrix v. State, 17 Ala.App.
116, 82 So. 564 (1919)."
Griffin v. State, 352 So.2d 847, 850 (Ala. 1977).
"'In contrast to the instantaneous nature of most
crimes, a continuing offense is one which consists of a
course of conduct enduring over an extended period of time.
Note, Statute of Limitations in Criminal Law: A
Penetrable Barrier To Prosecution, 102 Pa.L.Rev. 630,
641-642 (1954).' John v. State, 96 Wis.2d 183,
188, 291 N.W.2d 502, 505 (1980). 'Even if the initial
unlawful act may itself embody all of the elements of the