v. Arapahoe Cnty. Court

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
2020COA104
No. 19CA0393, Gonzales v. Arapahoe Cnty. Court — Persons
Required to Report Child Abuse or Neglect; Courts and Court
Procedure — Limitation of Actions
As a matter of first impression, a division of the court of
appeals considers whether a mandatory reporter’s willful failure to
report child abuse or neglect under section 19-3-304, C.R.S. 2019,
constitutes a continuing offense for the purposes of determining
when the statute of limitations period begins to run. In the absence
of clear legislative intent, the division concludes that failure to
report is not a continuing offense, and that the statute of
limitations begins to run when a mandatory reporter has reason to
know or suspect child abuse or neglect but willfully fails to make an
immediate report.
In a related case announced this same day, MacIntosh v.
People, 2020 COA 105, another division of this court reaches the
same conclusion based on the plain language of the statute. The
division here does not agree that the plain language of the statute
unambiguously and inexorably compels that result. Instead, after
applying the appropriate rules of statutory construction and
consulting legislative history, the division simply cannot conclude
that the General Assembly assuredly intended failure to report to be
a continuing offense.
COLORADO COURT OF APPEALS 2020COA104
Court of Appeals No. 19CA0393
Arapahoe County District Court No. 18CV31913
Honorable Stephen J. Schapanski, Judge
David Gonzales,
Plaintiff-Appellee,
v.
County Court of Arapahoe and the Honorable Cheryl Rowles-Stokes, Judge,
Defendants-Appellants.
ORDER AFFIRMED
Division VII
Opinion by JUDGE BROWN
Fox and Navarro, JJ., concur
Announced July 9, 2020
Recht Kornfeld P.C., David M. Beller, Andrew E. Ho, 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 In this C.R.C.P. 106(a)(4) action, we consider whether a
mandatory reporter’s willful failure to report child abuse or neglect
constitutes a continuing offense such that the statute of limitations
does not begin to run until a report is made or law enforcement
discovers the failure to report.
¶2 Under section 19-3-304(1)(a), C.R.S. 2019 (the failure to report
statute), any mandatory reporter
who has reasonable cause to know or suspect
that a child has been subjected to abuse or
neglect . . . shall immediately upon receiving
such information report or cause a report to be
made of such fact to the county department,
the local law enforcement agency, or through
the child abuse reporting hotline system . . . .
Any mandatory reporter “who willfully violates” the reporting
requirement commits a class 3 misdemeanor. § 19-3-304(4).
¶3 But when does the statute of limitations begin to run on this
misdemeanor offense? Is it triggered the moment the mandatory
reporter willfully fails to immediately report the child abuse or
neglect? Or is it tolled until a report is finally made or the failure to
report is discovered?
¶4 In a related case, MacIntosh v. People, 2020 COA 105, another
division of this court holds that the plain language of section 19-3-
1
304 dictates that willful failure to report is not a continuing offense,
and that the statute of limitations begins to run when a mandatory
reporter has reason to know or suspect child abuse or neglect but
willfully fails to make an immediate report. We agree with the
MacIntosh division’s conclusion, albeit on slightly different grounds.
¶5 We do not agree that the plain language of the statute
unambiguously and inexorably compels our holding; instead, after
applying the appropriate rules of statutory construction and
consulting legislative history, we simply cannot conclude that the
General Assembly assuredly intended failure to report to be a
continuing offense. In the absence of clear legislative intent, we
must conclude that failure to report is not a continuing offense, and
that the statute of limitations begins to run when a mandatory
reporter has reason to know or suspect child abuse or neglect but
willfully fails to make an immediate report.
¶6 Accordingly, we conclude the Arapahoe County Court and the
Honorable Cheryl Rowles-Stokes (collectively, the County Court)
erred by denying David Gonzales’s motion to dismiss the charge of
failure to report when the limitations period had expired before the
charge was filed.
2
I. Background
¶7 The People allege that in April 2013, C.V., a female student at
Prairie Middle School, told another student that when she was
fourteen she had a sexual relationship with a teacher, Brian
Vasquez. According to the People, the student’s allegation was
disclosed to the school’s dean, but rather than report the abuse, the
dean met with C.V. and asked her to reconsider her allegation given
the consequences that it could have for Vasquez.
¶8 The dean then took C.V. to meet with Gonzales, the principal
of Prairie Middle School. As a public school official, it is undisputed
that Gonzales is a mandatory reporter under section 19-3-304(2)(l).
The People allege Gonzales questioned C.V., again stressing the
consequences that her accusations would have for Vasquez.
¶9 Ultimately, C.V. retracted her claim. She was subject to
disciplinary proceedings, after which she was suspended from
school for purportedly falsifying an allegation against Vasquez.
Gonzales never reported C.V.’s sexual assault allegation, as
required by the failure to report statute.
¶ 10 In August 2017, police interviewed Vasquez regarding
allegations of sexual abuse pertaining to a different student.
3
Vasquez confessed to sexually abusing numerous students —
including C.V. — starting in 2013.
¶ 11 In January 2018, after a grand jury hearing, Gonzales was
indicted on one count of failure to report child abuse in violation of
section 19-3-304(1)(a). At the time Gonzales was charged, the
statutory limitations period for his alleged offense was eighteen
months. § 16-5-401(1)(a), C.R.S. 2018.1 Accordingly, Gonzales
moved to dismiss the indictment, asserting that his prosecution
was initiated after the limitations period had expired in October
2014.
¶ 12 The People countered that the duty to report is a continuing
obligation, failure to meet that obligation is a continuing offense,
and the statute of limitations was not triggered until law
enforcement discovered the alleged nondisclosure in August 2017.
The County Court denied Gonzales’s motion, concluding that the
1 In March 2019, the General Assembly established a three-year
statute of limitations on a mandatory reporter’s failure to report
known or suspected “unlawful sexual behavior as defined in section
16-22-102(9)” involving a child. § 19-3-304(5), C.R.S. 2019; see Ch.
56, sec. 1, § 19-3-304(5), 2019 Colo. Sess. Laws 195.
4
General Assembly intended failure to report child abuse to be a
continuing offense.
¶ 13 Gonzales challenged the County Court’s order through a
C.R.C.P. 106(a)(4) action in the district court. In a detailed order,
the district court concluded that failure to report is not a continuing
offense and ordered the County Court to dismiss the criminal case.
¶ 14 The County Court appeals, contending that the district court
erred by finding that Gonzales’s prosecution was barred by the
applicable statute of limitations because failure to report
constitutes a continuing offense.
II. Standard of Review and Applicable Law
A. Rule 106(a)(4)
¶ 15 An original proceeding under C.R.C.P. 106 is a proper avenue
for challenging the 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, which must be pursued in the district court. See § 13-6-
310(1), C.R.S. 2019; Crim. P. 37. And any further review of a
5
district court’s decision on appeal from the county court is solely
via a petition for writ of certiorari to the supreme court. § 13-6-
310(4); Crim. P. 37(h); see also § 13-4-102(1)(f), C.R.S. 2019. But
appellate review of the district court’s decision in an original Rule
106 action is within our purview. § 13-4-102(1); see also Huang, 98
P.3d at 927.
¶ 16 In a proceeding under C.R.C.P. 106(a)(4), district court review
of a county court’s ruling is limited to whether the county court
exceeded its jurisdiction or abused its discretion when there is no
plain, speedy, or adequate remedy otherwise provided by law.
Huang, 98 P.3d at 928. The district court’s review is based on the
evidence in the record before the county court. City & Cty. of
Denver v. Cty. Court, 37 P.3d 453, 455-56 (Colo. App. 2001). A
county court abuses its discretion under Rule 106(a)(4) by
misconstruing or misapplying the law. Roalstad v. City of Lafayette,
2015 COA 146, ¶ 13.
¶ 17 On appeal from a district court’s decision in a Rule 106 action,
we are in the same position as the district court, so we review the
district court’s decision de novo to assess whether the county court
6
exceeded its jurisdiction or abused its discretion. Berges v. Cty.
Court, 2016 COA 146, ¶ 6.
B. Statute of Limitations 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). Criminal statutes of limitation are designed to protect
individuals from having to defend themselves against charges when
the facts have been obscured by the passage of time, to minimize
the danger of punishment for acts in the far-distant past, and to
encourage law enforcement to promptly investigate suspected
criminal activity. Id. at 114-15. For these reasons, criminal
statutes of limitation are to be liberally construed in a favor of the
defendant. Id. at 115.
¶ 19 A statute of limitations typically begins to run when the crime
is complete. People v. Thoro Prods. Co., 70 P.3d 1188, 1192 (Colo.
2003). In certain circumstances, however, a crime continues
beyond the first moment when all its substantive elements are
satisfied. Id. With a continuing offense, the statute of limitations
7
does not begin to run so long as the illegal conduct continues. Id.
at 1193.
¶ 20 Because there is a tension between the purpose of a statute of
limitations and the continuing offense doctrine, the doctrine should
only be applied in limited circumstances. Id.; People v. Perez, 129
P.3d 1090, 1092 (Colo. App. 2005) (“There is a presumption against
a crime being a continuing offense.”). An offense should be
considered continuing only if (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.”
Toussie, 397 U.S. at 115; see also Allman v. People, 2019 CO 78,
¶ 12; Thoro Prods. Co., 70 P.3d at 1193.
¶ 21 Determining whether an offense is continuing is a matter of
statutory interpretation, which we review de novo. Allman, ¶ 10.
¶ 22 When construing a statute, we must ascertain and give effect
to the intent of the General Assembly. State v. Nieto, 993 P.2d 493,
500 (Colo. 2000). To determine legislative intent, we look first to
the plain language of the statute. Id. We read words and phrases
in context and construe them literally according to common usage.
8
People v. Yascavage, 101 P.3d 1090, 1093 (Colo. 2004). We
consider the statute as a whole, construing each provision
consistently and in harmony with the overall statutory design.
Allman, ¶ 13.
¶ 23 If the statutory language is clear and unambiguous, we do not
resort to any further rules of statutory construction; we enforce the
statute as written. Id.; Nieto, 993 P.2d at 500. However, where the
words chosen by the legislature are capable of two or more
reasonable constructions leading to different results, the statute is
ambiguous. Carrera v. People, 2019 CO 83, ¶ 22; Nieto, 993 P.2d at
500-01. If the statute is ambiguous, we may rely on other
interpretive aids such as legislative history, the General Assembly’s
declaration of purpose, the consequences of a given construction,
and the end to be achieved by the statute. § 2-4-203, C.R.S. 2019;
Yascavage, 101 P.3d at 1093; Nieto, 993 P.2d at 501; McLaughlin v.
Oxley, 2012 COA 114, ¶ 10.
III. Analysis
A. The Failure to Report Statute is Ambiguous
¶ 24 Gonzales was charged with failing to report child abuse or
neglect in violation of section 19-3-304. As noted, that statute
9
requires that a mandatory reporter “who has reasonable cause to
know or suspect that a child has been subjected to abuse or neglect
. . . shall immediately upon receiving such information” make a
report. § 19-3-304(1)(a). A mandatory reporter who “willfully
violates the provisions of subsection (1)” commits a class 3
misdemeanor. § 19-3-304(4).
¶ 25 We are tasked with deciding whether failure to report is a
continuing offense such that the statute of limitations does not
begin to run until the mandatory reporter at issue makes a tardy
report or until law enforcement discovers the crime.
¶ 26 It is undisputed that “the explicit language of the substantive
criminal statute” does not answer the question. See Toussie, 397
U.S. at 115. The General Assembly did not define failure to report
as a continuing offense as it has so defined other crimes. See, e.g.,
§ 18-2-204(1), C.R.S. 2019 (defining conspiracy as a “continuing
course of conduct”); § 18-8-201(2), C.R.S. 2019 (defining escape as
“a continuing activity”).
¶ 27 So, we must turn to the alternative test and determine
whether the nature of the crime involved is such that the General
Assembly “must assuredly have intended that it be treated as a
10
continuing one.” Toussie, 397 U.S. at 115; see Allman, ¶ 14. And
we begin by looking to the plain language of the statute. Allman, ¶
15.
¶ 28 Although the parties focus on different words in the statute,
both contend that the plain language supports their respective
interpretations. The County Court focuses on the language that
requires a mandatory reporter to make a report when he “has
reasonable cause” to know or suspect child abuse. § 19-3-304(1)(a)
(emphasis added). Relying on the dictionary definition of “have,”
see Webster’s Third New International Dictionary 1039 (2002)
(defining “have” to mean “to hold in possession as property” and “to
hold, keep or retain”), the County Court argues that the General
Assembly intended to create a duty to report that continues so long
as the mandatory reporter possesses knowledge or suspicion of
child abuse. According to the County Court, because the duty to
report continues the entire time a mandatory reporter “continues to
have, possess, or retain” such information, the mandatory reporter
continues to violate the statute each and every day he does not
make a report.
11
¶ 29 But Gonzales focuses on the General Assembly’s use of the
words “shall immediately . . . report,” § 19-3-304(1)(a) (emphasis
added), to argue that the statute requires that the mandatory
reporter complete a discrete act at a specific time — make a report
immediately. According to Gonzales, the crime is complete (and the
statute is violated just once) when, upon receiving information that
would cause the mandatory reporter to know or suspect child
abuse, he fails to “immediately” report it.
¶ 30 For guidance in determining whether a crime is a continuing
offense, we look to the Colorado Supreme Court’s decision in
Allman, ¶ 20, which held that identity theft by use was not a
continuing offense. Under section 18-5-902(1)(a), C.R.S. 2019, a
person commits identify theft by use when he “‘[k]nowingly uses the
personal identifying information, financial identifying information,
or financial device of another without permission,’ with the intent to
gain something of value.” Allman, ¶ 15 (citation omitted). The court
reasoned that each use of someone’s personal information is a
discrete act with its own new harm. Id. at ¶ 18.
¶ 31 The court contrasted identity theft by use with identity theft by
possession. Id. at ¶ 19. The court explained that “[i]dentity theft by
12
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.” Id. The court reasoned that a “use”
is “a discrete act that logically creates a unit of measurement,”
while a crime of possession is generally thought to be continuing
because “there is not an inherently logical way to measure
possession in units.” Id. (citing People v. Zuniga, 80 P.3d 965, 969
(Colo. App. 2003)).
¶ 32 Like the division in MacIntosh, ¶ 28, we read Allman to mean
that a criminal offense is not a continuing offense if it arises from “a
discrete act that logically creates a unit of measurement.” Allman,
¶ 19. But the Allman rubric does not readily apply here.
¶ 33 An affirmative act, like a “use” of someone else’s personal
identifying information, is easy to speak of in terms of “discrete
acts” and “measurable units.” There is a clear beginning and clear
end to the act, and it is easy to distinguish one act from another
because each new act causes a new “harm.” See id. at ¶ 18 (“[E]ach
act of putting another’s information into service for varying
purposes constitutes a separate, discrete act. This conclusion is
13
supported by the fact that each time an identity thief uses another’s
information, a new harm occurs.”).
¶ 34 Because failure to report is a crime of omission, however, it is
not easy to speak of in terms of “discrete acts” or “measurable
units.” True, by using the word “immediately” in section 19-3-
304(1)(a), the General Assembly could have intended to criminalize
a discrete omission — a single failure to report. And it could have
intended that omission to have a measurable unit — the moment
the mandatory reporter receives information causing him to know
or suspect child abuse and willfully fails to “immediately” report it.
¶ 35 But because “immediately” is not defined in the statute, it is
unclear to us what the “measurable unit” of the crime is. How
many seconds, minutes, hours, or days must pass between the
mandatory reporter’s receipt of information from which he has
cause to know or suspect child abuse and his report of that
information for a violation of the statute to occur? Unfortunately,
the dictionary definition of “immediately” — “without interval of
time” or “in direct connection or relation,” Merriam-Webster
Dictionary, https://perma.cc/3B3T-JKYK — does not aid our
14
analysis. Even applying this definition, it is unclear when the
omission criminalized by the statute begins and ends.
¶ 36 More importantly, under Gonzales’s interpretation, a
mandatory reporter is essentially relieved of any continuing duty to
report child abuse once he fails to immediately report it. And there
is the rub. There is no dispute that the statute is violated upon a
mandatory reporter’s willful failure to make an “immediate” report
of known or suspected child abuse. What remains in dispute is
whether there is an ongoing duty to report that continues beyond
the immediate failure to report. Although the General Assembly
used the word “immediately” for a reason, see Dep’t of Transp. v.
Stapleton, 97 P.3d 938, 943 (Colo. 2004) (“[W]e presume that the
General Assembly understands the legal import of the words it uses
and does not use language idly, but rather intends that meaning
should be given to each word.”), it is not clear to us that the reason
was to extinguish a mandatory reporter’s duty to report after a
passage of time. It is equally reasonable, as the County Court
argues, that the General Assembly used the word “immediately”
simply to signify the importance of the duty and encourage the
quick reporting of abuse.
15
¶ 37 Thus, it is reasonable to read the statute as creating an
ongoing duty to report child abuse that is continuously violated so
long as the mandatory reporter has cause to know or suspect child
abuse and willfully fails to report it. And it is also reasonable to
read the statute as creating only a discrete obligation that is
violated when a mandatory reporter willfully fails to make an
immediate report upon receipt of information that would cause him
to know or suspect child abuse.
¶ 38 Based on the plain language of the statute, we cannot
determine whether the General Assembly “must assuredly have
intended” to treat failure to report as a continuing offense. Toussie,
397 U.S. at 115; see Allman, ¶ 12; Thoro Prods. Co., 70 P.3d at
1193. Because we conclude that the statute is ambiguous, we turn
to other tools of statutory construction to guide our analysis.
B. Other Continuing Offenses
¶ 39 The parties refer us to case law addressing other crimes that
have been deemed to be continuing offenses in Colorado and in
other jurisdictions. Unfortunately, these cases do not shed much
light on whether the “nature” of the crime of failure to report as
defined in section 19-3-304 is such that the General Assembly
16
“must assuredly have intended that it be treated as a continuing
one.” Toussie, 397 U.S. at 115.
¶ 40 In People v. Johnson, 2013 COA 122, a division of this court
considered whether the crime of escape from custody was a
continuing offense. Turning first to the statutory text, the division
noted that “escape” was not defined as a continuing activity in the
crime’s elemental statute. Id. at ¶ 14; see § 18-8-208(1), C.R.S.
2019. But the division looked at the definition of “escape” in a
related provision criminalizing aiding and abetting an escapee.
Johnson, ¶ 18. Under that provision, an “escape” is “deemed to be
a continuing activity commencing with the conception of the design
to escape and continuing until the escapee is returned to custody or
the attempt to escape is thwarted or abandoned.” § 18-8-201(2).
The division reasoned that it would be “illogical for the General
Assembly to treat escape as a continuing offense in the context of
aiding escape, but not to do so in the context of the substantive
offense itself.” Johnson, ¶ 20. Thus, reading these provisions
together, the division concluded that the legislature must have
intended for escape to be a continuing offense. Id. Therefore,
although the crime of escape was not explicitly defined as a
17
continuing offense, the division was able to discern the General
Assembly’s clear intent to treat it as one by examining the overall
statutory scheme. See id. at ¶ 8 (“[W]e read and consider the
statute as a whole, interpreting it in a manner that gives consistent,
harmonious, and sensible effect to all its parts.”); see also Allman,
¶ 13 (“[W]e consider ‘the statute as a whole, construing each
provision consistently and in harmony with the overall statutory
design.’” (quoting Whitaker v. People, 48 P.3d 555, 558 (Colo.
2002))).
¶ 41 Unlike in Johnson, no other related statutory provisions
define, imply, suggest, or refer to the crime of failure to report as a
continuing offense.
¶ 42 In Perez, a division of this court concluded that the crime of
criminal impersonation could be a continuing offense or could
occur at a specific time. 129 P.3d at 1092-93. To commit criminal
impersonation, one must “knowingly . . . [a]ssume[] a false or
fictitious identity.” § 18-5-113(1)(a), C.R.S. 2019. Relying on the
dictionary definition of “assume” as “to invest oneself with (a form,
attribute, or aspect),” the division concluded that the plain language
of the statute “implies that the offense of criminal impersonation
18
may occur over a period of time rather than at a specific moment.”
Perez, 129 P.3d at 1092-93 (quoting Webster’s Third New
International Dictionary 133 (1986)). Because the defendant
impersonated the victim beginning as early as 1996 and continuing
until 2003, the division concluded that the defendant’s criminal
impersonation was a continuing offense. Id. at 1093.
¶ 43 In Zuniga, a division of this court concluded that theft by
receiving was a continuing offense. 80 P.3d at 969-70. Under the
then-existing statute, a person committed theft by receiving when
he “retain[ed] . . . anything of value of another, knowing or believing
that said thing of value ha[d] been stolen, and when he intend[ed] to
deprive the lawful owner permanently of the use or benefit of the
thing of value.” § 18-4-410(1), C.R.S. 2002. Noting that the
operative word “retain” was not defined in the statute, the division
turned to the dictionary, which defined “retain” to mean “to keep in
possession or use.” Zuniga, 80 P.3d at 969 (quoting Webster’s
Third New International Dictionary 1938 (1986)). Relying on this
definition, the division reasoned that the legislature intended the
theft by receiving statute to include the offense of possession of
stolen property and explained that a “defendant necessarily
19
continues to commit any crime involving possession . . . during the
entire period he or she possesses the property.” Id.¶ 44 Most recently, as explained above, the Colorado Supreme
Court in Allman held that identity theft by use was not a continuing
offense by contrasting it with the related crime of identity theft by
possession. Allman, ¶¶ 19-20. The court explained that crimes of
possession are generally thought to be continuing offenses. Id.(citing Zuniga, 80 P.3d at 969).
¶ 45 Unlike the crimes of escape from custody, criminal
impersonation, theft by receiving, and identity theft by possession,
section 19-3-304 does not criminalize an affirmative, ongoing act.
Having cause to know or suspect child abuse triggers a mandatory
reporter’s obligation under 19-3-304(1)(a). But the crime is not
possessing such information; the crime is failing to immediately
report it. Failure to report is a crime of omission. In this way, the
nature of the crime is markedly different from those discussed in
Johnson, Perez, Zuniga, and Allman.
¶ 46 Still, a crime of omission may be a continuing offense when
the statute imposes a duty that persists until a defendant performs.
See Wright v. Superior Court, 936 P.2d 101, 103 (Cal. 1997)
20
(“Ordinarily, a continuing offense is marked by a continuing duty in
the defendant to do an act which he fails to do. The offense
continues as long as the duty persists, and there is a failure to
perform that duty.”) (citation omitted). So, the fact that the crime of
failure to report is committed the moment an immediate report is
not made does not end the analysis. See Thoro Prods. Co., 70 P.3d
at 1192 (“[I]n certain circumstances, a crime continues beyond the
first moment when all its substantive elements are satisfied.”).
¶ 47 In People v. Lopez, 140 P.3d 106, 109 (Colo. App. 2005), a
division of this court determined that the failure to register as a sex
offender — a crime of omission — is a continuing offense. The
division concluded that offenders in Colorado are “under a
continuing obligation to register.” Id. That conclusion turned on
the language of the statute itself, which explicitly imposed an
ongoing obligation on the defendant to register quarterly and notify
the authorities of any change in address. Id. Thus, the division
concluded that, for failing to register as a sex offender, “[a]
defendant does not commit the crime only at the particular moment
the obligation arises, but every day it remains unsatisfied.” Id. at
21
108-09 (quoting State v. Goldberg, 819 So. 2d 123, 129 (Ala. Crim.
App. 2001)).
¶ 48 Failure to report under section 19-3-304, like the failure to
register as a sex offender, is a crime of omission that is committed
when a defendant breaches a statutory duty to act. Unlike the sex
offender registration statute, however, section 19-3-304 does not
contain an explicit, ongoing, periodic reporting obligation.
¶ 49 The County Court relies on Lebo v. State, 977 N.E.2d 1031,
1037 (Ind. Ct. App. 2012), where the Indiana Court of Appeals
concluded that violation of Indiana’s mandatory reporter statute
constituted a continuing offense for the purposes of the statute of
limitations. Like section 19-3-304, the Indiana statute requires
that mandatory reporters who have reason to believe a child is
abused or neglected “shall immediately make an oral or written
report.” Ind. Code §§ 31-33-5-1, 31-33-5-4 (2020). However, the
Indiana statute also includes the following provision: “This chapter
does not relieve an individual of the obligation to report on the
individual’s own behalf, unless a report has already been made to
the best of the individual’s belief.” Ind. Code § 31-33-5-3 (2020).
22
¶ 50 Based on the language of the statute, the Indiana court
reasoned that “[a]n individual who has not been ‘relieved’ of his
duty to report must be considered to have a continuing duty to do
so.” Lebo, 977 N.E.2d at 1037. According to the court, a contrary
reading would frustrate the purpose of the statute and would allow
a mandatory reporter to avoid prosecution if the individual’s failure
to report was not discovered until after the statute of limitations
had elapsed. Id.
¶ 51 While Indiana’s mandatory reporter statute is similar to
section 19-3-304 in that they both require the immediate reporting
of child abuse, section 19-3-304 contains no language explaining
how long the duty to report lasts (e.g., unless a report has already
been made).
¶ 52 The County Court also cites State v. Kaiser, 139 S.W.3d 545,
555 (Mo. Ct. App. 2004), where the Missouri Court of Appeals held
that the offense of failure to report elder abuse under Missouri law
was a continuing offense. The court reasoned that
failure to report elderly abuse is a crime of
omission and, as such, is a continuing crime
that is not complete at the time of the initial
failure to report, but rather continues so long
as the duty to report exists. If we adopted [the
23
defendant’s] line of reasoning, it would mean
the law imposed no duty on a caretaker to
report abuse after they first knew of the abuse
and then failed to report it. To the contrary,
we think the duty to report must continue at
least so long as the report of abuse may
operate to ameliorate the circumstances of
either the victim or another similarly-situated
senior citizen, or to bring the abuser to justice.
Id.¶ 53 Kaiser is not instructive here because the court did not apply
the continuing offense analysis articulated in Toussie and adopted
by the Colorado Supreme Court in Thoro Products. Instead, the
Missouri court simply concluded that because elder abuse was a
crime of omission, it was necessarily a continuing offense. But not
all crimes of omission are continuing offenses. See, e.g., Toussie,
397 U.S. at 120-23 (concluding that the failure to register for the
draft, a crime of omission, was not a continuing offense); State v.
Taylor, 349 P.3d 696, 701-02 (Utah 2015) (concluding that
securities fraud statute that prohibited “mak[ing] any untrue
statement [or] . . . omit[ing] to state a material fact” described
discrete acts that did not constitute continuing offenses (quoting
Utah Code Ann. § 61-1-1 (West 2020))).
24
¶ 54 Finally, the County Court cites United States v. Canal Barge
Co., 631 F.3d 347, 351-54 (6th Cir. 2011), where the Sixth Circuit
held that the duty to “immediately” notify the coast guard of a
hazardous condition was a continuing offense for venue purposes.
There, a barge carrying benzene was travelling down a river when it
began to leak. Id. at 350. Rather than immediately report the
condition, defendants placed a patch over the leak that held for
several days. Id. However, further down the river, the patch failed,
and a report was made. Id. The question before the court was
whether the duty to report continued such that venue was proper in
both the district where the immediate failure to report occurred and
the district where the leak was ultimately reported. The court
reasoned that “the ‘immediate’ start of the obligation does not mean
that the obligation ceases as soon as there has been some delay in
reporting.” Id. at 352.
¶ 55 However, “the ‘continuing offense’ analysis for venue purposes
is ‘obviously different’ from the ‘continuing offense’ analysis for
statute of limitations.” United States v. Reitmeyer, 356 F.3d 1313,
1323 (10th Cir. 2004) (citation omitted). An offense may continue
in different geographic locations for venue purposes without
25
qualifying as a continuing offense for statute of limitations
purposes. Id. Indeed, the Canal court recognized this important
distinction, noting that
[i]f the crime is deemed to be a continuing
offense for venue purposes, the defendant is
merely exposed to prosecution in a different
district. But if the crime is a continuing
offense for statute of limitations purposes, the
defendant may be prosecuted after a time at
which he would otherwise have no exposure
whatsoever. Thus, interpreting a crime as a
continuing offense for statute of limitations
purposes has more serious consequences than
it does in the context of venue.
Canal Barge Co., 631 F.3d at 353.
¶ 56 In the end, we do not find these cases particularly persuasive.
Failure to report is a crime of omission that is unlike that of other
crimes that have been found to be continuing offenses in Colorado,
and the language of section 19-3-304 is unlike other statutes
establishing crimes of omission as continuing offenses.
C. Legislative History and Declaration of Purpose
¶ 57 The parties do not cite, and our own research has not
revealed, relevant legislative history compelling us to conclude, one
way or the other, whether failure to report is a continuing offense.
Examining the statute’s declaration of purpose is equally unhelpful.
26
¶ 58 The County Court argues that the legislative declaration
accompanying the Child Protection Act (the Act) establishes that the
failure to report child abuse is a continuing offense. The legislative
declaration states:
The general assembly declares that the
complete reporting of child abuse is a matter of
public concern and that, in enacting this part
3, it is the intent of the general assembly to
protect the best interests of children of this
state and to offer protective services in order to
prevent any further harm to a child suffering
from abuse.
§ 19-3-302, C.R.S. 2019 (emphasis added).
¶ 59 The County Court argues that the only way to ensure the
“complete reporting of child abuse” is to impose a continuing duty
on mandatory reporters to report abuse. It asserts that if the
reporting obligation expires instantaneously after the failure to
make an immediate report, it would frustrate the General
Assembly’s intent to “prevent any further harm” to children. Thus,
to achieve the declared purpose of the statute, the General
Assembly must have intended for failure to report to be a
continuing crime.
27
¶ 60 We agree that the state has a compelling interest in protecting
children and ending child abuse that is furthered by requiring
mandatory reporters to promptly report known or suspected abuse.
And we agree that this purpose is frustrated when a mandatory
reporter who fails to fulfil his statutory obligation escapes liability
by staying silent until the limitations period expires.
¶ 61 But we also note that the legislative declaration was enacted in
1975 as part of a comprehensive reform of the Act designed to more
effectively prevent and address child abuse. Ch. 177, sec. 1, §§ 19-
10-101 to -115, 1975 Colo. Sess. Laws 645-55. And section 19-3-
302 still serves as the legislative declaration for the entire Act,
which includes provisions addressing, among other things,
emergency placement of abandoned children, evidence gathering
during investigations of child abuse or neglect, recorded interviews
of children concerning reports of abuse, assessments by county
departments of human or social services, establishment and
participation in safety plans, and creation of a differential response
program for low- or moderate-risk abuse or neglect. Nothing in the
legislative declaration addresses whether section 19-3-304 creates a
continuing duty or whether failure to report is a continuing offense.
28
Rather, the legislative declaration speaks to a much broader intent
of the General Assembly in enacting the whole of the Act.
¶ 62 As to the failure to report statute itself, the parties did not cite,
and we could not find, legislative history speaking to how long a
mandatory reporter’s duty to report persists. The amendments to
the statute also reveal very little in this regard.
¶ 63 Before 1975, a mandatory reporter who had “reasonable cause
to believe that a child has been subject to abuse” was required to
“report such incident or cause a report to be made to the proper law
enforcement agency.” § 19-10-102, C.R.S. 1973. The word
“immediately” was added to the statute in 1975, requiring
mandatory reporters “who [have] reasonable cause to know or
suspect” child abuse or neglect to “immediately report or cause a
report to be made.” § 19-10-104, C.R.S. 1975 (emphasis added).
¶ 64 There is no indication in the legislative history that the
General Assembly intended the word “immediately” to affect the
duration of a mandatory reporter’s reporting obligation. Rather, it
appears to have been added as part of the Act’s overarching goal to
encourage the expeditious reporting and investigation of child
abuse. Indeed, the word “immediately” was included in several
29
other provisions of the Act at the same time. See § 19-10-105,
C.R.S. 1975 (requiring any person to immediately report the death
of a child from known or suspected abuse or neglect); § 19-10-106,
C.R.S. 1975 (requiring that x-rays evidencing abuse be forwarded
immediately to the receiving agency); § 19-10-108(3), C.R.S. 1975
(requiring a receiving agency to immediately transmit a report of
known or suspected abuse to the district attorney and local law
enforcement); § 19-10-109, C.R.S. 1975 (requiring a receiving
agency to immediately investigate reports of known or suspected
abuse or neglect).
¶ 65 Since 1975, the reporting statute has been amended several
times, most notably in 2002 when the General Assembly amended
the statute to add the language (“upon receiving such information”)
that now appears after the word “immediately.” Ch. 177, sec. 2,
§ 19-3-304, 2002 Colo. Sess. Laws 568-69. While this amendment
further clarified the timeframe for when a report must be made,
there is no indication that the General Assembly intended to alter
the scope or duration of the reporting obligation.
30
¶ 66 Ultimately, neither the legislative declaration of the Act nor the
legislative history of the reporting statute helps us determine
whether failure to report is a continuing offense.
D. Consequences of the County Court’s Construction
¶ 67 Finally, the County Court argues that allowing a mandatory
reporter who stays silent for eighteen months to escape penalty for
his failure to report leads to an absurd result that subverts the
purpose of the statute to protect children from further abuse. But
adopting the County Court’s reasoning would allow for an indefinite
delay in triggering the limitations period. It could lead to
circumstances where a mandatory reporter would be subject to
prosecution decades after his initial failure to make an immediate
report. This would put failure to report, a class 3 misdemeanor, in
a similar category to felonies such as murder and kidnapping that
have no time limit for commencing prosecution. See § 16-5-
401(1)(a), C.R.S. 2019 (listing the statute of limitations for offenses,
including those with no limitations period).
¶ 68 “While there is a risk that an offender will conceal his
misdeeds in the hopes of avoiding prosecution, this is no less a risk
here than it would be in every criminal case in which a statute of
31
limitations exists.” Thoro Prods. Co., 70 P.3d at 1195. And in the
absence of clear and contrary direction from the General Assembly,
in our view, the County Court’s construction leads to the more
absurd result.
E. Failure to Report is Not a Continuing Offense
¶ 69 As discussed, criminal statutes of limitation are to be liberally
interpreted in favor of defendants. Toussie, 397 U.S. at 115.
Because there is a tension between the purpose of a statute of
limitations and the continuing offense doctrine, the doctrine should
be applied in limited circumstances. Thoro Prods. Co., 70 P.3d at
1193. Indeed, “[t]here is a presumption against a crime being a
continuing offense.” Perez, 129 P.3d at 1092. To overcome the
presumption, we must find that the General Assembly “assuredly,”
Toussie, 397 U.S. at 115, “manifestly,” Thoro Prods. Co., 70 P.3d at
1192, or “unmistakably,” People v. McMinn, 2013 COA 94, ¶ 29
(citation omitted), intended that the crime be treated as a
continuing one.
¶ 70 In addition, criminal law must be sufficiently clear so that a
person will know what the law forbids. Thoro Prods. Co., 70 P.3d at
1198. “For this reason, ambiguity in the meaning of a criminal
32
statute must be interpreted in favor of the defendant under the rule
of lenity.” Id. The rule of lenity is a rule of last resort. While it
should not apply to defeat the evident intent of the General
Assembly, it should apply if, after utilizing various aids of statutory
construction, the General Assembly’s intent remains obscured. Id.
(first citing Muscarello v. United States, 524 U.S. 125, 138 (1998);
then citing United States v. Wilson, 10 F.3d 734, 736 (10th Cir.
1993)).
¶ 71 We are not persuaded that the plain language of section 19-3-
304 or the interpretive aids we have examined demonstrate that the
General Assembly assuredly intended that failure to report be a
continuing offense. We cannot say that the broad legislative
declaration of the Act or the generic legislative history of the
reporting statute itself requires us to find that the duty to report is
ongoing or that the failure to report is a continuing offense.
¶ 72 “We do not mean that the argument in support of implying a
continuing offense in this case is insubstantial, but it is at best
highly equivocal.” Toussie, 397 U.S. at 122. Like the Court in
Toussie, we are faced with the task of construing an ambiguous
statute in one of two ways for purposes of the statute of limitations.
33
One construction would limit prosecution to a period of eighteen
months following a failure to immediately report, while the other
could indefinitely extend when the statute of limitations begins to
run.
“[W]hen [a] choice has to be made between two
readings of what conduct [the General
Assembly] has made a crime, it is appropriate,
before we choose the harsher alternative, to
require that [the General Assembly] should
have spoken in language that is clear and
definite. We should not derive criminal
outlawry from some ambiguous implication.”
Id. (quoting United States v. Universal C.I.T. Credit Corp., 344 U.S.
218, 221-22 (1952)).
¶ 73 We also do not mean to imply that the crime of failure to
report child abuse or neglect is not a serious offense or that it is
victimless. The duty to report is a vital tool in preventing and
stopping serious harm to vulnerable victims. And compliance is
easy. All the mandatory reporter must do is pass along information
to the county department of human services, the local law
enforcement agency, or the child abuse reporting hotline.
34
¶ 74 Nonetheless, we conclude that failure to report is not a
continuing offense.2 The limitations period for this misdemeanor
begins when all the substantive elements of section 19-3-304(4) are
satisfied; that is, it begins to run when a mandatory reporter
willfully fails to make an immediate report after receiving
information that gives him reasonable cause to know or suspect
that a child has been subjected to abuse or neglect.
2 Our conclusion is buttressed by a subsequent amendment to the
statute that created a three-year statute of limitations period
specific to the crime of failure to report “unlawful sexual behavior.”
§ 19-3-304(5); see supra note 1. Although we cannot infer the
intent of an earlier General Assembly by reviewing a subsequent
amendment to a statute, see State v. Nieto, 993 P.2d 493, 503 n.6
(Colo. 2000), it is notable that the General Assembly, through the
2019 amendment, created a longer statute of limitations for failing
to report one category of child abuse but did not clarify that the
crime of failure to report is a continuing offense. On the contrary,
in support of extending the statute of limitations, the bill sponsor
argued that, under the then-existing statute of limitations,
mandatory reporters who fail to report for eighteen months and one
day “are having their cases dismissed” and “are absolved of any
responsibility.” Hearing on S.B. 19-049 before the S. Judiciary
Comm., 72d Gen. Assemb., 1st Sess. (Feb. 6, 2019). These
statements suggest a common understanding that failure to report
is not a continuing offense; if it were, a mandatory reporter would
not escape liability by remaining silent for the limitations period.
35
IV. Conclusion
¶ 75 Gonzales was accused of failing to report C.V.’s alleged abuse
beginning in April 2013. The eighteen-month limitations period
expired in October 2014, more than three years before Gonzales
was indicted. Accordingly, we agree with the district court that the
County Court abused its discretion by ruling that the statute of
limitations did not prevent Gonzales from being prosecuted in 2018
for a 2013 failure to report in violation of section 19-3-304.
¶ 76 The district court’s order is affirmed.
JUDGE FOX and JUDGE NAVARRO concur.
36