h v. Arapahoe County 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
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
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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,
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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
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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:
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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
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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.
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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.
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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
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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
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“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
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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 ¶
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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
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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.
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