h v. Arapahoe County Court

2020 COA 105

• Court: Colorado Court of Appeals
• Decided: July 9, 2020
• Docket: 19CA0394, Macintos
• Status: Published

Opinion

The summaries of the Colorado Court of Appeals published opinions constitute no part of the opinion of the division but have been prepared by the division for the convenience of the reader. The summaries may not be cited or relied upon as they are not the official language of the division. Any discrepancy between the language in the summary and in the opinion should be resolved in favor of the language in the opinion.

SUMMARY July 9, 2020

2020COA105

No. 19CA0394, Macintosh v. Arapahoe County Court — Persons Required to Report Child Abuse or Neglect; Courts and Court Procedure — Limitation of Actions

A division of the court of appeals considers whether Colorado’s

failure-to-report provision, § 19-3-304(4), C.R.S. 2019 — which

subjects mandatory reporters to prosecution for a class 3

misdemeanor if they fail to “immediately report” known or

suspected child abuse or neglect — creates a so-called “continuing

offense” for purposes of the statute of limitations. A continuing

offense is a special category of offense; for such an offense, the

statute of limitations does not begin to run as long as the illegal

conduct is continuing. Applying Colorado Supreme Court

precedent, the division concludes that failure to report is not a

continuing offense, and that the statute of limitations for violation of the provision starts to run when a mandatory reporter has

reason to know or suspect child abuse or neglect but fails to make

an immediate report. Section 19-3-304(4) defines a discrete act

with a measurable unit; the word “immediately” indicates the

starting point as the moment when the reporter learns information

that triggers the reporting obligation, and the statute of limitations

expiration date defines the endpoint of the measurable unit. Given

that the failure to report offense can be measured in definite and

discrete units, it is not one that continues.

Because failure to report is not a continuing offense, the

Arapahoe County Court and the Honorable Judge Cheryl Rowles-

Stokes erred in permitting the plaintiff, Adrienne MacIntosh, to be

indicted on a charge of failure to report after the limitations period

had expired. COLORADO COURT OF APPEALS 2020COA105

Court of Appeals No. 19CA0394 Arapahoe County District Court No. 18CV31607 Honorable Stephen J. Schapanski, Judge

Adrienne MacIntosh,

Plaintiff-Appellee,

v.

County Court of Arapahoe and Honorable Cheryl Rowles-Stokes, Judge,

Defendants-Appellants.

ORDER AFFIRMED

Division A Opinion by JUDGE TERRY Tow and Yun, JJ., concur

Announced July 9, 2020

Stimson Stancil LaBranche Hubbard, LLC, Marci G. LaBranche, Denver, Colorado; Ridley, McGreevy & Winocur P.C., Shanelle Kindel, Denver, Colorado, for Plaintiff-Appellee

Philip J. Weiser, Attorney General, Emily Buckley, Assistant Attorney General, Michael Kotlarczyk, Assistant Attorney General, Denver, Colorado, for Defendants-Appellants ¶1 This case highlights the tension between the statutory duty of

a mandatory reporter to report child abuse and neglect, on the one

hand, and the statute of limitations for the offense of failure to do

so, on the other hand.

¶2 State law requires that certain individuals, known as

mandatory reporters, “who [have] reasonable cause to know or

suspect that a child has been subjected to abuse or neglect . . .

shall immediately” report that knowledge. § 19-3-304(1)(a), C.R.S.

2019 (mandatory reporter provision). Any mandatory reporter who

willfully violates that reporting obligation commits a class 3

misdemeanor. § 19-3-304(4) (failure-to-report provision).

¶3 In this C.R.C.P. 106(a)(4) action, we must determine, as a

matter of first impression, whether the failure-to-report provision

creates a continuing offense. We conclude that the failure to report

under section 19-3-304 is not a continuing offense, and that the

statute of limitations starts to run when a mandatory reporter has

reason to know or suspect child abuse or neglect but fails to make

an immediate report. In so holding, we also conclude that

1 defendants, the County Court of Arapahoe County and the

Honorable Judge Cheryl Rowles-Stokes (collectively, the County

Court), erred by permitting plaintiff, Adrienne MacIntosh, to be

indicted on a charge of failure to report after the limitations period

had expired.

¶4 While we recognize the necessity for, and importance of,

reporting instances of child abuse, we must affirm the district

court’s order, which directed the County Court to dismiss the case.

I. Background

¶5 The prosecution made the following accusations against

MacIntosh.

¶6 In April 2013, C.V., a female student at Prairie Middle School,

told another student that she had been in a sexual relationship

with a male teacher, Brian Vasquez, when she was fourteen. That

allegation was relayed by an unknown person to MacIntosh, a dean

at the middle school. Because of her position as dean, MacIntosh

was a mandatory reporter under section 19-3-304(2)(l). MacIntosh

met with C.V. to discuss the allegation. During that conversation,

2 MacIntosh told C.V. to reconsider her accusation in light of the

consequences it could have for Vasquez. After C.V. retracted her

claim, MacIntosh did not report C.V.’s sexual assault allegation, as

required by the mandatory reporter provision.

¶7 In August 2017, police investigated Vasquez regarding

allegations of sexual abuse pertaining to another student. During a

police interview, Vasquez confessed to having sexually abused

students, including C.V., since 2013.

¶8 Following the investigation into Vasquez, C.V.’s 2013

allegation took on new significance. After C.V. testified before a

grand jury, MacIntosh was indicted on one count of failure to report

in January 2018. MacIntosh moved to dismiss the indictment,

arguing that the statute of limitations had expired. The prosecution

disagreed, asserting that failure to report is a continuing offense

and that the statute of limitations had not yet expired.

¶9 The County Court denied MacIntosh’s motion, ruling that

failure to report is a continuing offense. MacIntosh filed an action

pursuant to C.R.C.P. 106, asking the district court to order the

3 County Court to dismiss the charges. The district court entered a

detailed and well-reasoned order, concluding that failure to report

was not a continuing offense and ordering the County Court to

dismiss the case. According to the district court, the County

Court’s interpretation of the statute of limitations would “make[] the

time to prosecute this Class 3 misdemeanor equivalent [to that] of

serious felonies with no statute of limitations” and would “eviscerate

the purpose of statutes of limitations.” The County Court now

appeals from the district court’s order.

II. Analysis

¶ 10 The County Court contends that MacIntosh’s prosecution for

failure to report child abuse or neglect is not barred by the

applicable statute of limitations because it is a continuing offense.

In light of our supreme court’s recent decision in Allman v. People,

2019 CO 78, we disagree.

A. Jurisdiction

¶ 11 Our jurisdiction to decide this appeal derives from C.R.C.P.

106(a)(4), which provides in pertinent part:

4 Where any . . . lower judicial body exercising judicial . . . functions has exceeded its jurisdiction or abused its discretion, and there is no plain, speedy and adequate remedy otherwise provided by law:

(I) Review shall be limited to a determination of whether the body or officer has exceeded its jurisdiction or abused its discretion, based on the evidence in the record before the defendant body or officer.

¶ 12 An original proceeding under C.R.C.P. 106 is a proper avenue

for challenging a county court’s jurisdiction to proceed on criminal

charges. See Huang v. Cty. Court, 98 P.3d 924, 927 (Colo. App.

2004). This is in contrast to an appeal challenging a county court

conviction or seeking review of the county court’s rulings during the

course of a criminal case properly before the county court. Those

proceedings must be pursued through an appeal to the district

court. See § 13-6-310, C.R.S. 2019; Crim. P. 37. If this were such

an appeal, we would lack jurisdiction, as further review of the

district court’s decision in an appeal from the county court is solely

via a petition for certiorari to the supreme court. § 13-4-102(1)(f),

C.R.S. 2019; Crim. P. 37(h). But appellate review of the district

5 court’s decision in a Rule 106 action is within this court’s purview.

§ 13-4-102(1); see also Huang, 98 P.3d at 927.

B. Standards of Review

¶ 13 In a Rule 106(a)(4) proceeding, the district court’s review is

limited to determining whether the lower judicial body exceeded its

jurisdiction or abused its discretion. Walker v. Arries, 908 P.2d

1180, 1182 (Colo. App. 1995). A court may abuse its discretion

under C.R.C.P. 106(a)(4) by misconstruing or misapplying the law.

Roalstad v. City of Lafayette, 2015 COA 146, ¶ 13. Because we are

in the same position as the district court, we review the issues

presented to the district court de novo. Id.

¶ 14 Whether the County Court abused its discretion turns on the

interpretation of a statute. We review questions of statutory

interpretation de novo. People v. Diaz, 2015 CO 28, ¶ 9.

¶ 15 Determining whether an offense is a continuing offense is a

question of statutory interpretation. People v. Perez, 129 P.3d

1090, 1092 (Colo. App. 2005). In construing a statute, our primary

purpose is to ascertain and give effect to the legislature’s intent.

6 McCoy v. People, 2019 CO 44, ¶ 37. To do this, we first look to the

language of the statute, seeking to give its words and phrases their

plain and ordinary meanings. Id. In doing so, we consider “the

statute as a whole, construing each provision consistently and in

harmony with the overall statutory design.” Whitaker v. People, 48

P.3d 555, 558 (Colo. 2002).

¶ 16 If a statute is clear and unambiguous, we need look no further

than the plain language to determine the statute’s meaning. Id.

C. The Limitations Period for Failure to Report

¶ 17 In 2018, when MacIntosh was charged with failure to report

under section 19-3-304, the statute of limitations was eighteen

months. § 19-3-304(4)(a), C.R.S. 2018; see § 16-5-401(1)(a), C.R.S.

2018. Though in 2019 the legislature extended the statute of

limitations to three years on a mandatory reporter’s failure to report

known or suspected “unlawful sexual behavior” involving a child,

§ 19-3-304(5); see Ch. 56, sec. 1, § 19-3-304, 2019 Colo. Sess.

Laws 195, it did not amend the statute to explicitly make the

offense a continuing offense.

7 D. Discussion

1. Statutes of Limitation and Continuing Offenses

¶ 18 “The purpose of a statute of limitations is to limit exposure to

criminal prosecution to a certain fixed period of time following the

occurrence of those acts the legislature has decided to punish by

criminal sanctions.” Toussie v. United States, 397 U.S. 112, 114

(1970). Such limitations protect individuals from having to defend

themselves against charges when the passage of time has obscured

the evidence. Id. These limitations also minimize the danger of

punishment “because of acts in the far-distant past.” Id. Because

of these principles, criminal statutes of limitation must be liberally

construed in favor of repose, id. at 115 — in other words, in favor of

defendants.

¶ 19 Statutes of limitation normally begin to run once a crime is

complete. Id. But in certain circumstances, “a crime continues

beyond the first moment when all its substantive elements are

satisfied.” People v. Thoro Prods. Co., 70 P.3d 1188, 1192 (Colo.

2003). Such crimes are known as continuing offenses. Id. If an

8 offense is a continuing offense, the statute of limitations does not

begin to run as long as the illegal conduct is continuing. Id. at

1193.

¶ 20 To determine whether a crime is a continuing one, Colorado

follows the two-part test recognized by the United States Supreme

Court in Toussie. Allman, ¶ 12; Thoro Prods. Co., 70 P.3d at 1193.

Under this test, a crime is deemed continuing when (1) “the explicit

language of the substantive criminal statute compels such a

conclusion” or (2) “the nature of the crime involved is such that [the

legislature] must assuredly have intended that it be treated as a

continuing one.” Allman, ¶ 12 (quoting Toussie, 397 U.S. at 115).

¶ 21 Because of the tension between the reasons for definite

statutes of limitation and the continuing offenses doctrine, the

doctrine should be applied only in limited circumstances. Thoro

Prods. Co., 70 P.3d at 1193.

¶ 22 As our supreme court said in Thoro Products, if the General

Assembly had intended to designate a particular crime as a

continuing offense, it could have done so through language

9 “unmistakably communicat[ing] this intent.” Id. But the General

Assembly did not designate failure to report as a continuing offense,

and so Thoro Products would then have us consider whether the

legislature “must assuredly have intended that it be treated as a

continuing one.” Id. (quoting Toussie, 397 U.S. at 115).

¶ 23 Our supreme court in Allman has given guidance pertinent to

this issue. See Allman, ¶¶ 15-19 (looking first to the plain language

of the statute, and then determining whether the charged conduct

is a “discrete act that logically creates a unit of measurement,” and

concluding that identity theft by use under section 18-5-902(1)(a),

C.R.S. 2019, is not a continuing offense). We turn to this guidance

from Allman to help determine whether the legislature intended

failure to report under section 19-3-304(4) to be treated as a

continuing offense.

2. The Failure-to-Report Provision Does Not Create a Continuing Offense

¶ 24 The County Court asserts that failure to report is a continuing

offense and that the statute of limitations does not begin to run

until a report is made or law enforcement discovers that a report

10 was not made. Applying Allman, we conclude that under section

19-3-304(1)(a), failure to report is not a continuing offense.

¶ 25 The operative phrase of the mandatory reporter provision is

“shall immediately . . . report or cause a report to be made.” § 19-3-

304(1)(a) (emphasis added). The plain meaning of that phrase is

that, as soon as a mandatory reporter has reasonable cause to

know of or suspect child abuse or neglect, the reporter must

immediately report that knowledge. But see Gonzales v. Arapahoe

County Court, 2020 COA 104, ¶ 5 (stating that the plain language of

§ 19-3-304(1)(a) does not “unambiguously [or] inexorably” compel

this conclusion). And the offense of failure to report is completed as

soon as a reporter fails to report that information.

¶ 26 The supreme court’s reasoning in Allman supports our

conclusion. In Allman, the supreme court held that the use of

personal information to commit identity theft is not a continuing

offense. Allman, ¶¶ 16-18. It reached this conclusion because,

under the plain language of the identity theft statute, each “use” of

personal information is a discrete act, not a continuing one. Id. at ¶

11 18; see also § 18-5-902(1)(a) (“A person commits identity theft if he

or she . . . [k]nowingly uses [personal or financial information] of

another without permission . . . .”).

¶ 27 The court contrasted the crime of identity theft by use with that of identity theft by possession:

Identity theft by possession . . . is defined similarly to identity theft by use . . . except that it requires only the possession of another’s identifying or financial information with the intent to use, rather than the actual use of that information. Crimes of possession are generally thought to be continuing offenses. People v. Zuniga, 80 P.3d 965, 969 (Colo. App. 2003). This makes sense because there is not an inherently logical way to measure possession in units — whereas “use” is a discrete act that logically creates a unit of measurement, possession is a continuous act.

Allman, ¶ 19 (third emphasis added) (footnote and citation omitted).

¶ 28 We read Allman to mean that a criminal offense is not

“continuing” if that offense is composed of “a discrete act that

logically creates a unit of measurement.” Id. As the court

indicated, measurable, discrete acts, by their very nature, do not

continue. Id.

12 ¶ 29 Section 19-3-304, through its use of the word “immediately,”

creates a discrete act with a measurable unit. The word

“immediately” indicates that the starting point is the moment when

the reporter learns information that triggers the reporting

obligation, and the statute of limitations expiration date defines the

endpoint. § 19-3-304(1)(a). Thus, because the offense of failure to

report can logically be measured in definite and discrete units, the

offense is not one that continues. Allman, ¶ 19.

¶ 30 We reject the County Court’s argument that, by using the

word “has” in section 19-3-304, the legislature intended to create a

crime of possession. See § 19-3-304(1)(a) (“any [mandatory

reporter] who has reasonable cause”) (emphasis added); see also

Zuniga, 80 P.3d at 969 (holding that the legislature’s use of the

word “retains” in a theft by receiving statute created a continuing

offense). According to the County Court, as a crime of possession,

the failure to report must be a crime that continues because the act

of possession is ongoing. See Allman, ¶ 19 (“Crimes of possession

are generally thought to be continuing offenses.”). We disagree

13 because the word “immediately” in subsection (1)(a) starts the clock

running on a measurable period for purposes of the statute of

limitations.

¶ 31 We are also unpersuaded by the County Court’s citation to

out-of-state case law to support its assertion that failure to report is

a continuing offense. Those cases conflict with binding Colorado

precedent as reflected in Allman, and we decline to follow them. We

also note that the language of section 19-3-304 differs from the

statutory language at issue in those cases.

¶ 32 Pressing further, the County Court asserts that MacIntosh’s

interpretation of section 19-3-304 leads to an absurd result. See

State v. Nieto, 993 P.2d 493, 501 (Colo. 2000) (statutes must be

interpreted to avoid absurd results). According to the County

Court, under an interpretation where the offense of failure to

report is complete when a mandatory reporter fails to make an

immediate report, “the [statute] imposes no duty on [the]

mandatory reporter to report abuse after he or she first learns of

the abuse and fails to make an immediate report.” (Emphasis

14 added.) But this reading is not supported by the statute, and we

decline to read additional words into it.

¶ 33 In sum, we conclude that failure to report is not a continuing

offense. Therefore, we also conclude that the County Court abused

its discretion by ruling that the statute of limitations did not

prevent MacIntosh from being prosecuted for that offense.

Roalstad, ¶ 13 (a court abuses its discretion under C.R.C.P.

106(a)(4) by misconstruing or misapplying the law).

¶ 34 MacIntosh was accused of failing to report C.V.’s alleged abuse

beginning in April 2013. Therefore, the eighteen-month statute of

limitations expired in October 2014. However, she was not indicted

for failure to report until January 2018. Because the indictment

occurred more than three years after the statute of limitations

expired, the County Court lacked jurisdiction to allow the

prosecution of MacIntosh to proceed.

III. Conclusion

¶ 35 The district court’s order is affirmed.

JUDGE TOW and JUDGE YUN concur.