People v. Johnson

• Decision Date: 15 August 2013
• Docket Number: Court of Appeals No. 11CA2366
• Parties: The PEOPLE of the State of Colorado, Plaintiff–Appellee, v. Robert Charles JOHNSON, Defendant–Appellant.
• Court: Colorado Court of Appeals

327 P.3d 305

The PEOPLE of the State of Colorado, Plaintiff–Appellee,

v.Robert Charles JOHNSON, Defendant–Appellant.

Court of Appeals No. 11CA2366

Colorado Court of Appeals,

Div. VII.

Announced August 15, 2013

Fremont County District Court No. 07CR350, Honorable Julie G. Marshall, Judge

John W. Suthers, Attorney General, Jillian J. Price, Assistant Attorney General, Denver, Colorado, for Plaintiff–Appellee

Law Office of Suzan Trinh Almony, Suzan Trinh Almony, Broomfield, Colorado, for Defendant–Appellant

Opinion by JUDGE TERRY

¶ 1 Defendant, Robert Charles Johnson, appeals the judgment of conviction entered on a jury verdict finding him guilty of escape. We affirm.

¶ 2 As an issue of first impression, we conclude that escape under section 18–8–208, C.R.S.2012, is a “continuing offense,” and that such an escape does not terminate until the defendant is returned to custody in Colorado.

I. Background

¶ 3 In 1973, defendant was convicted of second degree murder and sent to prison. He escaped two years later and evaded authorities until 2007, when he was arrested and returned to custody in Colorado.

¶ 4 Defendant moved to dismiss the charges against him, arguing that his constitutional right to a speedy trial was violated. The trial court dismissed the case on those grounds, but a division of this court reversed. People v. Johnson, 2010 WL 3036495 (Colo.App. No. 09CA0127, Aug. 5, 2010) (not published pursuant to C.A.R. 35(f)).

¶ 5 On remand, and following a jury trial, defendant was convicted of escape and sentenced to sixteen years in prison.

II. Statute of Limitations

¶ 6 Defendant first contends that the statute of limitations for escape bars his prosecution. We disagree.

A. Standard of Review

¶ 7 We review de novo issues concerning application of a statute of limitations. See People v. McKinney, 99 P.3d 1038, 1041 (Colo.2004). When interpreting a statute, our primary purpose is to ascertain and give effect to the intent of the General Assembly. People v. Daniels, 240 P.3d 409, 411 (Colo.App.2009). We first look to the language of the statute and give words their plain and ordinary meaning. People v. Jaramillo, 183 P.3d 665, 671 (Colo.App.2008).

¶ 8 “[W]e must interpret a statute in a way that best effectuates the purpose of the legislative scheme.” Daniels, 240 P.3d at 411. Thus, we read and consider the statute as a whole, interpreting it in a manner that gives consistent, harmonious, and sensible effect to all its parts. Id. And, “when interpreting two statutory sections, we must attempt to harmonize them to give effect to their purposes and, if possible, reconcile them so as to uphold the validity of both.” Gonzales v. Allstate Ins. Co., 51 P.3d 1103, 1106 (Colo.App.2002).

B. Statute of Limitations for Escape

¶ 9 Defendant was originally charged in absentia with escape on May 28, 1975, but the charge was administratively dismissed on December 9, 1981. He argues that the statute of limitations began to run from the date of dismissal and that the People had eight years from that date to file new charges. Because the People did not file new charges until 2007, he argues that the statute of limitations bars his prosecution. We are not persuaded by these arguments.

¶ 10 The statute of limitations for escape—which is considered a class 2 felony when committed following conviction for a class 1 or class 2 felony—is three years. § 16–5–401(1)(a), C.R.S.2012; see§ 18–8–208(1), C.R.S.2012. If escape is considered to be a continuing offense under People v. Thoro Products Co., 70 P.3d 1188, 1192–93 (Colo.2003), the statute of limitations would not begin to run so long as the illegal conduct was continuing.

¶ 11 In Thoro Products, the Colorado Supreme Court adopted the federal framework for determining whether an offense is continuing. Id. Under that framework, “the doctrine of continuing offenses should be applied in only limited circumstances.” Id. at 1193 (quoting Toussie v. United States, 397 U.S. 112, 115, 90 S.Ct. 858, 25 L.Ed.2d 156 (1970)). An offense is not a continuing offense unless (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. Id.; see also Toussie, 397 U.S. at 115, 90 S.Ct. 858.

¶ 12 The statutory provision pertinent to defendant states:

A person commits a class 2 felony if, while being in custody or confinement following conviction of a class 1 or class 2 felony, he knowingly escapes from said custody or confinement.

§ 18–8–208(1).

¶ 13 Because the explicit language of section 18–8–208(1) does not address whether escape is a continuing offense, we must proceed to the second prong of the Thoro Products analysis. Applying that second prong, as described more fully below, we conclude that the crime of escape under section 18–8–208 is a continuing offense for purposes of the statute of limitations.

¶ 14 Defendant argues, and we recognize, that there is a presumption against construing crimes as continuing offenses. See People v. Pérez, 129 P.3d 1090, 1092 (Colo.App.2005) (citing Toussie, 397 U.S. at 135, 90 S.Ct. 858). Further, we note that “escape” is not defined as a continuing activity either in the elemental escape statute, section 18–8–208, or in the general definitional statute, section 18–8–101, C.R.S.2012.

¶ 15 Defendant also relies on the Colorado Supreme Court's interpretation of the statutory term “escape.” In People v. Lanzieri, 25 P.3d 1170, 1172 (Colo.2001), the supreme court defined the crime of escape as

consist[ing] of the following essential elements: (1) a voluntary act; (2) which constitutes a departure from one of the forms of lawful custody or confinement specified in the escape statute; (3) by a prisoner; and (4) committed “knowingly,” i.e., with an awareness on the part of the prisoner that his or her conduct is of the nature proscribed.

See also Massey v. People, 649 P.2d 1070, 1072 (Colo.1982) (escape is the “voluntary departure from lawful custody by a prisoner with the intent to evade the due course of justice” (quoting Gallegos v. People, 159 Colo. 379, 387, 411 P.2d 956, 960 (1966), superseded by statute, Ch. 224, sec. 43, § 18–8–208, 1977 Colo. Sess. Laws 959, 966; Ch. 44, sec. 50, § 18–8–208(8), 1978 Colo. Sess. Laws 252, 263, as recognized in People v. Thornton, 929 P.2d 729, 732 (Colo.1996))); cf. People v. Williams, 199 Colo. 515, 517, 611 P.2d 973, 974 (1980) (addressing crime of holding hostages in § 18–8–207, C.R.S.2012, and stating that, while the term “escape” is not specifically defined in the Colorado Criminal Code, the parties nevertheless agreed that the term had the same meaning for purposes of § 18–8–207 as for purposes of § 18–8–208).

¶ 16 According to defendant, because the supreme court's definition of the crime of “escape” emphasizes the element of departure, and does not mention subsequent conduct, the crime of escape is therefore a discrete act that is complete upon escape from custody, and does not continue while the escapee remains at large. However, the supreme court has not yet been called upon to decide whether escape is a continuing offense, and we do not read its opinions as foreclosing such a construction.

¶ 17 Under the second Thoro prong, we are required to consider what the General Assembly must have intended. See Thoro Products, 70 P.3d at 1193; see also United States v. Bailey, 444 U.S. 394, 413, 100 S.Ct. 624, 62 L.Ed.2d 575 (1980). We conclude that it must have intended for escape to be deemed a continuing offense.

¶ 18 Our analysis is informed by the definition of “escape” contained in a related criminal statute, section 18–8–201(2), C.R.S. 2012, which appears within the same Part 2 of Article 8 of the Criminal Code as the escape statute under which defendant was charged here. Section 18–8–201(2), which criminalizes the aiding, abetting, or assisting of escape from custody or confinement, states that “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.” (Emphasis added.)

¶ 19 The language of section 18–8–201(2) clearly indicates that the General Assembly intended to treat escape as a continuing offense. See Thoro Products, 70 P.3d at 1193.

¶ 20 Reading sections 18–8–201(2) and 18–8–208 together, and giving effect to the purpose of punishing escape, we are compelled to the conclusion that, given the nature of the escape crime, the General Assembly must have intended that escape under section 18–8–208 be treated as an offense that continues until the escapee has been returned to custody or the attempt to escape has been thwarted or abandoned. See Thoro Products, 70 P.3d at 1193; see also People v. Velarde, 657 P.2d 953, 955 (Colo.1983) (the “fundamental purpose” of punishing escape “is to prevent the evasion of the due course of justice”). Indeed, 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. See Daniels, 240 P.3d at 411 (in construing a statute, we do not interpret it so as to render any part of it meaningless or absurd).

¶ 21 We observe that many other courts, including the United States Supreme Court, have explicitly held that escape is a continuing offense, and have emphasized the continuing threat posed to society by escapees, especially escaped felons, while they remain at large. See Bailey, 444 U.S. at 413, 100 S.Ct. 624 (“[W]e think it clear beyond peradventurethat escape from federal custody ... is a continuing offense and that an escapee can be held liable for failure to return to custody as well as for his initial departure.”) (applying 18 U.S.C. § 751(a) (2006)); Harbin v. State, 581 So.2d 1263, 1266 (Ala.Crim.App.1991); Wells v. State, 687 P.2d...