State of Minnesota, Respondent,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A20-0055

State of Minnesota,
Respondent,

vs.

Roy Biggs Henline,
Appellant.

Filed March 15, 2021
Affirmed
Johnson, Judge

Hennepin County District Court
File No. 27-CR-18-9683

Keith Ellison, Attorney General, St. Paul, Minnesota; and

Michael O. Freeman, Hennepin County Attorney, Brittany D. Lawonn, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Jenna Yauch-Erickson, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Bjorkman, Pres iding Judge; Johnson, Judge; and Larkin,
Judge.
NONPRECEDENTIAL OPINION
JOHNSON, Judge
Roy Biggs Henline III, while a licensed attorney in private practice, was appointed
trustee of a trust that had been established by a single woman who was dying of cancer for
the benefit of her three children. Over a period of approximately seven years, Henline

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surreptitiously stole approximately $180,000 from the trust. He made multiple transfers of
money from the trust’s accounts to his own acc ounts, and he used those funds to make
personal expenditures. He concealed his crime by not giving the deceased woman’s
children information about trust assets, by a voiding their requests for information or
distributions, and by giving excuses for his non-responsiveness. Henline eventually was
removed as trustee but not until trust assets were reduced to approximately one-tenth of
their original value. Henline distributed less than a third of the original value of the trust
to the deceased woman’s children before he was removed.
After a court trial on stipulated facts, a Hennepin County judge found Henline guilty
of theft by swindle of property valued at more than $35,000. On appeal, Henline challenges
the timeliness of the prosecutio n and the legal sufficiency of the state’s evidence. We
conclude that the state commenced the pros ecution within the a pplicable statute of
limitations. We also conclude that the evid ence is sufficient to prove that Henline
committed a theft by swindle, as that term is used in the applicable statute. And we
conclude that the evidence is not insufficient on the ground that Henline transferred or
spent more than $35,000 during periods longer than six months. Therefore, we affirm.
FACTS
The relevant facts are contained in a 21-page, 110-paragraph stipulation of facts and
in 80 exhibits, which include numerous fina ncial records and compilations of financial
records. Neither party introduced any additional evidence.
In 2005, D.M.K., who had been married a nd divorced, was diagnosed with cancer.
Before she passed away in February 2009, she established a trust for the benefit of her three

3
children, who then were 18, 17, and 10 years old. The trust agreement provided that each
child would receive discretionary distributions of net income and principal before reaching
25 years of age and then would be entitled to a mandatory distribution of his or her share
of principal. D.M.K.’s eldest child declined to serve as trustee, as did an identified
successor trustee, who contacted Henline, apparently because he previously had prepared
income tax returns for D.M.K. Henline became successor trustee in March 2009. The trust
was funded primarily with the proceeds of a life insurance policy in the amount of
approximately $377,500, which Henline received in May 2009.
After Henline’s appointment as trust ee, D.M.K.’s childre n generally lacked
information about the value of trust assets. They and the adults assisting them consistently
experienced difficulty in communicating with Henline, obtaining information from him
about the trust, and receiving responses to th eir requests for information or distributions
from the trust. The children often had to make multiple inquiries by telephone and e-mail
before Henline responded. Henline sometimes justified his delays by saying that he had
been on vacation or that his computer had broken down. For example, between 2010 and
2013, the children received only six statements with values of trust assets, each of which
appeared to have been created by Henline with a word-processing program. In late 2015,
D.M.K.’s former husband contacted Henlin e multiple times over a 10-week period
requesting distributions for educational expe nses for the youngest child, but Henline did
not distribute funds despite promising to do so . In early 2016, D.M.K.’s eldest child
contacted Henline with four e-mail messages, one letter, a nd three telephone calls to
request a distribution of her share of trust pr incipal upon reaching 25 years of age. In

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March 2016, Henline responded by stating that he would gi ve her information after
receiving first-quarter account statements, but he did not do so . The eldest child wrote a
follow-up e-mail message on April 10, 2016. As far as the record reveals, Henline did not
respond.
In mid-2016, D.M.K.’s children hired an attorney, who wrote to Henline to request
his resignation and his complete file. Hen line did not resign and did not provide any
documents. In December 2016, the Hennepin County District Court removed Henline as
trustee and appointed D.M.K.’s eldest child as successor trustee. In doing so, the district
court ordered Henline to give th e trust’s files and an accountin g to the successor trustee.
Henline never did so. The successor truste e obtained some financial statements from
financial institutions. Those statements show ed many transfers of funds from the trust’s
accounts to accounts belonging to Henline. The children filed a complaint with the office
of lawyers professional responsibility and with law enforcement.
Further investigation revealed that, be tween August 3, 2009 and November 11,
2016, Henline transferred a total of $224,044 from trust accounts to his personal and law-
firm accounts. After subtracting permissibl e trustee fees and the amounts that Henline
transferred back to the trust, investigator s determined that, between August 2009 and
November 2016, Henline improperly transfe rred $180,586 from the trust to himself.
Investigators also determined that, during the same period of time, Henline used his
personal and law-firm accounts to make expe nditures in excess of his income, including
many expenditures at restaurants, bars, a nd liquor stores in Minnesota, as well as
expenditures on trips to places such as New York, Florida, California, and Las Vegas,

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where Henline was married in 2010. During the same period, D.M.K.’s children received
distributions from the trust totaling approximately $113,000. For his conduct with respect
to D.M.K.’s trust and for other reasons, Henline was disbarred. See In re Disciplinary
Action Against Henline, 908 N.W.2d 344 (Minn. 2018).
In April 2018, the state ch arged Henline with one count of felony theft by swindle
of property valued at more than $35,000, in violati on of Minn. Stat. § 609.52,
subds. 2(a)(4), 3(1) (2016).
In October 2018, Henline moved to dismis s the complaint on two grounds. First,
he argued that the state had improperly aggregated amounts of money that Henline had
transferred from trust accounts to his own accounts more than six months apart, in violation
of the statute under which he was charged. Second, he argued that, in light of the applicable
five-year statute of limitations, the state should be barred from alleging transfers from the
trust to Henline that occurred more than five years before the complaint was filed. The
district court denied the motion.
In July 2019, the parties agreed to a c ourt trial on stipulated facts, stipulated
evidence, and written closing arguments. See Minn. R. Crim. P. 26.01, subd. 3. In
September 2019, the district court filed a 10-pa ge order in which it found Henline guilty.
The district court imposed a 21-month sentence but stayed execution of the sentence for
five years and placed Henline on probation, ordered him to serve 365 days in the
workhouse, imposed a $10,000 fine, and orde red restitution in the amount of $6,136.
Henline appeals.

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DECISION
I. Swindle
Henline first argues that the evidence is insufficient to prove that he committed theft
by swindle.
The statute setting forth the offense of theft by swindle states that a person “commits
theft” if he or she, “by swindling, whether by artifice, trick, device , or any other means,
obtains property or services from another pe rson.” Minn. Stat. § 609.52, subds. 2(a),
2(a)(4). The supreme court has identified three essential elements of theft by swindle: “(i)
the owner of the property gave up possession of the property due to th e swindle; (ii) the
defendant intended to obtain for himself or someone else possession of the property; and
(iii) the defendant’s act was a swindle.” State v. Pratt, 813 N.W.2d 868, 873 (Minn. 2012)
(citing Minn. Stat. § 609.52, subd. 2(4) (2010), and 10 Minn. Dist. Judges Ass’n,
Minnesota Practice—Jury Instruction Guides, Criminal, CRIMJIG 16.10 (5th ed. 2006)).
Henline argues that the evid ence is insufficient because it does not satisfy the first
element of the offense, but his argument imp licates both the first element and the third
element. He asserts that, because he was the trustee of the trust, he was the owner of trust
assets. For that reason, he contends that the evidence does not establish that “the owner”
of the stolen property “gave up possession” of the stolen property to him or that any such
giving up of possession was “due to the swindle.” He also contends that there was no
“swindle” because he did not deploy any “trick.”
In any appeal in which an appellant cha llenges the sufficiency of the evidence, this
court is required to conduct “a painstaking analysis of the record to determine whether the

7
evidence, when viewed in a light most favorable to the conviction, was sufficient to permit
the jurors to reach the verdict which they did.” State v. Webb, 440 N.W.2d 426, 430 (Minn.
1989). In this case, Henline’s argument does not focus on the quantity or the strength of
the evidence but, rather, on the quality or nature of the evidence in light of the elements of
the offense. To the extent that Henline’s arguments implicate “the meaning of the statute
under which a defendant has been convicted, we are presented with a question of statutory
interpretation” and, thus, apply a de novo standard of review. State v. Bowen, 921 N.W.2d
763, 765 (Minn. 2019) (quotation omitted).
Before the 1963 recodification of Minnes ota’s criminal code, the statute that
criminalized swindling provided as follows:
Every person who, by means of three-card monte, so-
called, or of any other form or device, sleight of hand, or other
means, by use of cards or instruments of like character, or by
any other instrument, trick, or device, obtains from another
person any money or other proper ty of any description, shall
be guilty of the crime of swindling.

Minn. Stat. § 614.11 (1961). The supreme court later “observed that the gist of the offense
[set forth in the former swindling statute] is the cheating and de frauding of another by
deliberate artifice.” State v. Ruffin , 158 N.W.2d 202, 205 (Minn. 1968) (citing State v.
Hodge, 123 N.W.2d 323 (Minn. 1963); State v. Wells, 121 N.W.2d 68, 69 (Minn. 1963);
and State v. Yurkiewicz , 292 N.W. 782, 784 (Minn. 1940 )). The former statute “was
intended to reach cheats and swindlers of all kinds and descriptions.” Wells, 121 N.W.2d
at 69. “No single definition can cover the range of possibilities for the offense.” Ruffin,
158 N.W.2d at 205.

8
I n 1963 the legislature enacted the theft-by-swindle statute that applies to this case.
1963 Minn. Laws ch. 753, art. 1, § 609.52, su bd. 2(4), at 1217. Soon after its enactment,
the supreme court described the purpose of the new statute as “the prohibition of an
undesirable form of conduct rather than a specific act.” Ruffin, 158 N.W.2d at 205. The
supreme court also commented that the new st atute “was intended to protect ‘[g]ullible
people [who] need as much, if not more, protection ag ainst swindlers than do others
endowed with greater caution.’” Id. at 205-06 (quoting Maynard E. Pirsig, Proposed
Revision of the Minnesota Criminal Code, 47 Minn. L. Rev. 417, 437 (1963)).
In arguing for a narrow interpretation of the statute, Henline cites several opinions
interpreting the former swindling statute. See, e.g., State v. Brooks , 187 N.W. 607, 608
(Minn. 1922) (swindling victim into betting on fake horse race); State v. Smith, 85 N.W.
12, 12-13 (Minn. 1901) (swindling ticket seller to give too much change); State v. Wilson, 75 N.W. 715, 716 (Minn. 1898) (swindling victim into placing bet on rigged game). Those
opinions have limited value today because the former statute included a specific example
of a swindle ( “three-card monte”) and provided other descriptions of swindling (“sleight
of hand”), which might have indicated that a swindle must include elaborate means of
deceit. But, as the s upreme court explained in Ruffin, the statute was not actually so
narrowly defined. See 158 N.W.2d at 205.
In any event, the 1963 enactment omitted some of that limiting language and
substituted broader language. The current version of the statute provides that a person may
engage in swindling “by artifice, trick, device, or any other means.” Minn. Stat. § 609.52,
subd. 2(a)(4) (emphasis added) . In State v. Hanson , 285 N.W.2d 483 (Minn. 1979), the

9
supreme court described the modern statute as one that “‘punishes any fraudulent scheme,
trick, or device whereby the wrongdoer depriv es the victim of his money or property by
deceit or betrayal of confidence.’” Id. at 486 (quoting Ruffin, 158 N.W.2d at 205). The
supreme court in Hanson affirmed a jury instruction that stated that a swindle “can be
accomplished by false representation as to both past and future facts” and “may include a
trick or a scheme consisting of mere words and actions, and it does not require the use of
some mechanical device or something like that.” Id. The supreme court also commented,
“The modern approach to theft focuses on protecting citizens in a comprehensive way from
theft,” which “eliminates the n eed to draw fine distinctions between swindling and other
types of theft.” Id. In light of this caselaw, Henline’s conduct is within the definition of
swindling, which is the third element of the offense. As described above, Henline withheld
information from the children, avoided their communications, and gave them excuses for
his non-responsiveness.
Having determined that Henline engaged in swindling, we turn to Henline’s
argument that the evidence is insufficient to prove the first element of the offense, that “the
owner of the property gave up possession of the proper ty due to the swindle.” See Pratt,
813 N.W.2d at 873. As stated above, this argument is base d on Henline’s assertion that,
as trustee, he had lawful ownership of trust assets such that D.M.K.’s children “cannot be
deemed the ‘owners’ of the trust funds at the time Henline allegedly took them.” It is true
that a trustee has an ownership interest in trust assets, but that interest is only a legal
interest; the beneficiaries of a trust have an equitable interest in trust assets, which allows
the beneficiaries “to receive whatever benefits [they are] entitled to therefrom by the terms

10
of the trust” as well as “the right to enfo rce in equity performance of the trust.” Farmers
State Bank v. Sig Ellingson & Co. , 16 N.W.2d 319, 322 (Minn. 1944); see also Security
Bank & Trust Co. v. Larkin, Hoffman, Daly & Lindgren, Ltd., 916 N.W.2d 491, 501 (Minn.
2018). Accordingly, this court has concluded that a trustee committed the offense of theft
by temporary control when she gambled and lo st trust assets, reas oning that the trustee
“had no claim of right” to trus t assets and had no right “to us e that money in any way for
her personal benefit.” State v. Franklin, 692 N.W.2d 82, 85-86 (Minn. App. 2005), review
denied (Minn. Apr. 19, 2005); see also State v. O’Hagan, 474 N.W.2d 613, 618-19 (Minn.
App. 1991) (affirming conviction of theft by temporary control of attorney who used trust
assets for personal purposes but later replenished trust accounts), review denied (Minn.
Sept. 25, 1991). When Henline transferred money fro m the trust’s accounts to his own
accounts and used the money to make personal expenditures, he effectively disposed of the
equitable interests that belonged to D.M.K.’s children. In essence, Henline’s own actions
as trustee caused the children to give up posse ssion of their equitabl e interests. Henline
cannot avoid criminal liability by relying on his legal interest in trust assets when he
wrongfully disposed of the beneficiaries’ equitable interests in trust assets.
Thus, the evidence is sufficien t to prove each of the elements of the offense of theft
by swindle.
II. Timeliness
Henline also argues that the district c ourt erred by denying his pre-trial motion to
dismiss the complaint on the ground that it alleged conduct occurring beyond the applicable
five-year statute of limitations.

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A charge of theft by swindle of property va lued at more than $35,000 “shall be . . .
made and filed in the proper court within five years after the commission of the offense.”
Minn. Stat. § 628.26(h) (2016). To resolve Henline’s argument, we must determine when
the offense was committed. See id. In denying Henline’s motion to dismiss, the district
court determined that the offe nse of theft by swindle is a continuing offense and that
Henline’s commission of the offense was not co mplete until he was re moved as trustee,
which occurred in December 201 6, approximately 16 months before the complaint was
filed in April 2018. On appeal, Henline contends that theft by swindle is not a continuing
offense because “the act of obtaining property points to a singular mo ment in time rather
than an extended period.”
Neither the supreme court nor this court has considered whether theft by swindle in
violation of section 609.52, subdivision 2(a)(4), is or may be a continuing offense. But the
supreme court has considered whether a similar charge based on substantially similar facts
was barred by a three-year statute of limitations. In State v. Thang, 246 N.W. 891 (Minn.
1933), the appellant was a court-appointed guard ian of funds held for the benefit of an
incompetent person. Id. at 891-92. Two years after his appointment, the appellant
represented to the probate court that he was in possession of the funds. Id. at 892. Two
years after that representati on, when the probate court re quested an inventory and an
accounting, the appellant did not respond, and it was discovered that $1,000 was missing.
Id. After his conviction of grand larceny, th e appellant argued on appeal that the
prosecution was barred by the thr ee-year statute of limitations. Id. The supreme court
rejected the argument, primarily because the appellant had represented during the three-

12
year period that he was in possession of the funds. Id. This court later described the
reasoning of Thang by stating that “the statute of lim itations did not run until the court’s
discovery of the crime.” State v. Danielski , 348 N.W.2d 352, 357 (Minn. App. 1984) ,
review denied (Minn. July 26, 1984).
In light of Thang and Danielski, the five-year statute of limitations applicable to
Henline’s offense of theft by swindle, which resembles the grand-larceny offense in Thang,
did not begin to run until Henlin e’s theft of trust assets was discovered. That discovery
occurred sometime after Decembe r 2016, when Henline was re moved as trustee, which
allowed the successor trustee and law enforcemen t to gather information and investigate.
The state filed its one-count complaint agains t Henline in April 2018. Thus, consistent
with Thang and Danielski, the state commenced this prosecution within five years after the
theft by swindle was committed. This conc lusion does not depend on whether theft by
swindle is a continuing offense.
If we were to consider whether theft by sw indle is or may be a continuing offense,
we would reach the same conclusion—that th e prosecution is not barred by the five-year
statute of limitations. As a general rule, “a crime is not continuing in nature if not clearly
so indicated by the legislature.” State v. Lawrence , 312 N.W.2d 251, 253 (Minn. 1981)
(citing Toussie v. United States , 397 U.S. 112, 115, 90 S. Ct. 858, 860 (1970)).
Furthermore, a “particular offense should not be construed as a continuing one ‘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.’” Danielski, 348 N.W.2d at 355 (quoting Toussie, 397 U.S. at

13
115, 90 S. Ct. at 860). In applying this test, this court independently considers each element
of the offense and also considers the particular facts of the case. See id.
In Danielski, the offense at issue was first-degree criminal sexual conduct of a child
by a person in a position of authority over the victim. 348 N.W.2d at 354. This court
reasoned that the first element (engaging in sexual penetration) was complete when the two
appellants engaged in acts of penetration but that the third and fourth elements (being in a
position of authority over the victim and using that authority to coerce the victim to submit)
did not cease at the time of penetration. Id. at 355-56. We reasoned that the appellants
“were able to maintain sufficient control over their daughter to prevent outside intervention
for eight years” and that their “success in ma intaining this control over the victim should
not bar the state’s subsequent prosecution.” Id. at 356. We also noted that in Thang and
other cases, “the defendants prevented discovery of the offense.” Id. at 357. Accordingly,
we determined that the Danielski defendants’ actions “made the offense a continuing one.”
Id.
As stated above, a person commits theft by swindle if he or she commits a theft “by
swindling, by artifice, trick, device , or any other means.” Minn. Stat. § 609.52,
subd. 2(a)(4). We already have described the meaning of the word “swindling,” as used in
the statute. See supra part I. The elements of the offense are “(i) the owner of the property
gave up possession of the property due to the swindle; (ii) the defendant intended to obtain
for himself or someone else possession of the property; and (iii) the defendant’s act was a
swindle.” Pratt, 813 N.W.2d at 73. By its nature, a swindle can consist of “any fraudulent
scheme, trick, or device whereby the wrongdo er deprives the victim of his money or

14
property by deceit or betrayal of confidence.’” Hanson, 285 N.W.2d at 486 (quoting
Ruffin, 158 N.W.2d at 205). Furthermore, a swindle “can be accomplished by false
representation as to both past and future facts.” Id. So understood, a theft by swindle can
occur both before and after the swindler obtains property fro m the victim. Accordingly,
the offense of theft by swindle may be a con tinuing offense, depending on the manner in
which it is committed. See Danielski, 348 N.W.2d at 357.
In this case, the district court determ ined that Henline’s actions delayed the
discovery of his theft and that he used misrepresentations about his past and future actions
to continue to defraud D.M.K.’s children. The district court reasoned that Henline’s
continuing offense “was only complete when he was forcibly removed by the courts as
trustee.” The record (which, at the time of th e pre-trial ruling, consisted primarily of the
complaint, which includes an extensive narrative statement of probable cause) supports the
district court’s determination that Hen line’s offense was a continuing offense. Henline
concealed his theft for seven years, practically the entire period of time in which he was
trustee. He continued to conceal his criminal conduct even after he was removed as trustee
in December 2016 by not complyi ng with the successor trustee’s request for his files and
records. Accordingly, Henline’s theft by swindle was a continuing offense that continued
until at least December 2016, which means that his “commission of the offense” occurred
within five years of the filing of the complaint in April 2018.
Thus, the district court did not err by denying Henline’s pre-trial motion to dismiss
the complaint on the ground that it alleged conduct occurring beyond the applicable five-
year statute of limitations.

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III. Aggregation
Henline also argues that the evidence is insufficient to prove that he stole more than
$35,000 within a six-month period.
The theft statute authorizes five differe nt maximum sentences, depending on the
value of property that was stolen. See Minn. Stat. § 609.52, subd. 3. If the state charges a
defendant with theft of property worth more than the minimum amount of $500, the value
of the stolen property is incorporated into the essential elements of the offense. See State
v. Matousek, 178 N.W.2d 604, 609 (Minn. 1970); State v. Saybolt, 461 N.W.2d 729, 733-35
(Minn. App. 1990), review denied (Minn. Dec. 17, 1990). In this case, the state charged
Henline with one count of the most serious form of theft, which requires proof that “the
value of the property or services stolen is more than $35,000.” Minn. Stat. § 609.52,
subd. 3(1).
In prosecutions for some types of theft, in cluding theft by swindle, “the value of the
money or property or services received by the defendant in violation of [the applicable
statute] within any six-month period may be aggregated and the defendant charged
accordingly.” Id., subd. 3(5). The statute gives the prosecutor some measure of “discretion
to either prosecute seriatim or aggregate the offenses,” Hanson, 285 N.W.2d at 485, and
also “provide[s] a limit of 6 mont hs on the aggregating period,” State v. Glidden , 455
N.W.2d 744, 746 (Minn. 1990). The supreme court commented in Glidden that “it is often
in the defendant’s best interests for the prosecutor to aggregate all the various takings over
a period longer than 6 months into a single felony theft charge” because limiting

16
aggregation to six-month periods may result in multiple convictions and greater criminal-
history scores. Id. at 746.
In this case, the state alleged in the na rrative section of the complaint that Henline
transferred the following amounts from the trust’s accounts to his own accounts: more than
$70,000 in 2009, approximately $70,000 in 2010, more than $30,000 in 2011, more than
$20,000 in 2012, approximately $3,000 in 2013, $1,000 in 2014, $1,402 in 2015, and
$4,400 in 2016. Before trial, Henline moved to dismiss on the ground that the one-count
complaint aggregated the amounts of alleged transfers that had occurred more than six
months apart. The district court rejected Henline’s argument and denied the motion. The
district court reasoned that the state was not required to divide its allegations into six-month
periods because the aggregation statute is permissive, not mandatory, and because
Henline’s offense consisted of a single contin uous theft by swindle rather than multiple
individual thefts.
On appeal, Henline does not directly challenge that pre-trial ruling. He makes an
argument that contradicts the district court’s pre-trial ruling, but he presents it to this court
as a challenge to the sufficiency of the evidence at trial. He argues that the evidence is
insufficient to prove that he stole more than $35,000 in a six-month period. In essence, he
does not argue that the state failed to pr ove the applicable threshold dollar amount
($35,000) but, rather, that the state did not prove the limitation on the applicable time period
(six months) with respect to such an amount. In response, the state argues that subdivision
3(5) of section 609.52 is pe rmissive, not mandatory, because it uses the word “may” and

17
that the statute does not restrict prosecutor ial discretion because Henline’s offense was a
continuing offense.
Before considering the parties’ argumen ts, we question whether Henline’s argument
is reviewable on appeal from a conviction. In State v. Belfry, 353 N.W.2d 224 (Minn. App.
1984), review denied (Minn. Oct. 30, 1984), the appellant was convicted of theft by swindle
of more than $2,500 based on evidence that he cheated eight persons out of money over a
12-month period. Id. at 225-26. On appeal, this court noted the appellant’s argument that
it was inappropriate for the state to aggreg ate the eight thefts into one charge. Id. at 226.
But we did not consider the me rits of the argument because we determined that he had
waived it by not objecting in the district court. Id. at 227. In this case, Henline noted in
his pre-trial motion, citing Belfry, that “he needs to challenge the complaint’s method of
aggregation now or he waives the issue.” Because Henline does not challenge the district
court’s adverse pre-trial ruling, it is questionable whether he may challenge the sufficiency
of the evidence that was presented at trial.
In any event, Henline’s argument is without merit. As explained above in part II,
Henline’s commission of theft by swindle was a continuing offense. His offense consisted
of multiple transfers of funds between tr ust accounts and his own accounts, multiple
purchases using commingled funds for personal purposes , and multiple deceptive
communications with D.M.K.’s children and others over a period of approximately seven
years. The facts of this particular case ma ke Henline’s commission of theft by swindle a
single continuing offense, not a series of individual thefts. For that reason, the six-month
limitation on the aggregation of values does not apply. In light of that conclusion, we need

18
not consider the state’s argument that the six-month limitation is merely permissive instead
of mandatory.
Thus, the evidence is not insufficient on th e ground that the state did not prove that
Henline stole more than $35,000 within any particular six-month period.
Affirmed.