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MacIntosh v. County Court of Arapahoe

2020 COA 105. No. 19CA0394. Criminal Procedure—Child Abuse or Neglect—Mandatory Reporter—Statute of limitations—Continuing Offense—Failure to Report.

July 9, 2020

This case involves the same incident as described in 2020 COA 104. This Court of Appeals division reached the same conclusion based on different reasoning.

In April 2013, C.V., a middle school student, told another student that she had been in a sexual relationship with Vasquez, a male teacher, when she was 14. That allegation was relayed to MacIntosh, a dean at the middle school. Because of her position as dean, MacIntosh was a mandatory reporter of suspected child abuse or neglect under CRS § 19-3-304(2)(l). MacIntosh met with C.V. to discuss the allegation and told C.V. to reconsider her accusation in light of the consequences for Vasquez. C.V. retracted her claim and MacIntosh did not report the allegation.

In 2017, police investigated Vasquez regarding sexual abuse of another student. Vasquez confessed to having sexually abused students, including C.V., since 2013. MacIntosh was indicted in January 2018 on one count of failure to report. She moved to dismiss, arguing that the statute of limitations had expired. The county court denied the motion, ruling that failure to report is a continuing offense. The district court reversed.

The county court appealed, arguing that the prosecution for failure to report was not barred by the applicable statute of limitations because it is a continuing offense. State law requires that mandatory reporters immediately report suspected child abuse or neglect. When MacIntosh was charged with failure to report under CRS § 19-3-304, the statute of limitations was 18 months. Statutes of limitation normally begin to run once a crime is complete, but some crimes are continuing offenses. A crime is deemed continuing when (1) the statute’s explicit language compels such a conclusion, or (2) the legislature intended the crime to be a continuing one, based on the nature of the crime involved. 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. A criminal offense is not “continuing” if that offense is composed of “a discrete act that logically creates a unit of measurement.”

The legislature did not designate failure to report as a continuing offense. Further, CRS § 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. Because the offense of failure to report can logically be measured in definite and discrete units, the offense is not one that continues. Here, the indictment occurred after the statute of limitations expired. Therefore, the county court abused its discretion by ruling that the statute of limitations did not prevent MacIntosh from being prosecuted.

The order was affirmed.

Official Colorado Court of Appeals proceedings can be found at the Colorado Court of Appeals website.

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