People v. McKinney

• Decision Date: 04 October 2004
• Docket Number: No. 03SC516.,03SC516.
• Citation: 99 P.3d 1038
• Parties: Petitioner: The PEOPLE of the State of Colorado, v. Respondent: Daniel MCKINNEY.
• Court: Colorado Supreme Court

99 P.3d 1038

Petitioner: The PEOPLE of the State of Colorado, v. Respondent: Daniel MCKINNEY.

No. 03SC516.

Supreme Court of Colorado.

October 4, 2004.

As Modified on Denial of Rehearing November 8, 2004.

Ken Salazar, Attorney General, Anthony J. Navarro, Assistant Attorney General Denver, for Petitioner.

David S. Kaplan, Colorado State Public Defender, Karen N. Taylor, Deputy State Public Defender Denver, for Respondent.

HOBBS, Justice.

We granted certiorari in this case to review the court of appeals decision in People v. McKinney, 80 P.3d 823 (Colo.App.2003).¹ The trial court entered judgment on a jury verdict convicting defendant, Daniel McKinney, of three counts of general theft, three counts of theft from an at-risk adult, and one count of conspiracy to commit theft. The trial court sentenced McKinney to a total of twelve years in the Department of Corrections. The court of appeals affirmed in part and reversed in part, leaving the twelve-year sentence intact. It affirmed McKinney's convictions for general theft and conspiracy, but reversed the three convictions for theft from an at-risk adult. The court of appeals held that the discovery tolling provision of the statute of limitations does not apply to thefts against at-risk adults and, therefore, the prosecution for those charges was time-barred because more than three years had elapsed since the time the criminal acts took place.

We disagree with the court of appeals and reverse. We hold that theft from an at-risk adult is an enhanced form of general theft. Because the discovery tolling provision of the statute of limitations, section 16-5-401(4.5)(c), applies to general theft, it also includes theft from an at-risk adult. Accordingly, the period within which a prosecution for theft against an at-risk adult must be commenced does not begin to run until the time the victim discovers the criminal act.

I.

At the time the criminal acts at issue in this case took place, Daniel McKinney owned an insurance agency. He sold insurance, annuities, and other investment products. Between 1994 and 1996, McKinney and his wife, Rachel McKinney, stole a total of $70,000 from three of McKinney's insurance clients. McKinney advised one set of clients to cash in two annuities valued at $20,000 each. McKinney took the money on the premise that he would invest it for his clients, but instead used the money for his own personal purposes.

McKinney convinced another client to cash in a $40,000 certificate of deposit so that the client could purchase a $30,000 annuity from him. McKinney and his wife then persuaded the client to cash in the annuity and deposit the money in two bank accounts: one-half into a joint savings account in the names of Mrs. McKinney and the client, and one-half into a checking account in the name of Mrs. McKinney alone. Over the following several months, Mrs. McKinney withdrew all of the $30,000 from both accounts and spent the money on the McKinneys' personal expenses.

All three victims were "at-risk adults" under Colorado law. Two victims were over the age of sixty, and the third was an adult formerly adjudged to be mentally incapacitated as a result of a head injury.

On December 4, 1998, both Mr. and Mrs. McKinney were charged with the following: four counts of theft of property valued at over $15,000 pursuant to section 18-4-401(1)(a), 6 C.R.S. (1998) ("general theft"); three counts of theft from an at-risk adult pursuant to section 18-6.5-103(5), 6 C.R.S. (1998); and one count of conspiracy to commit theft pursuant to section 18-2-201, 6 C.R.S. (1998).

Mrs. McKinney pleaded guilty to conspiracy to commit theft and received a sentence of probation. During the course of finalizing her plea, she prepared a written statement implicating her husband in the thefts. The charges against McKinney proceeded to trial.

McKinney filed a pre-trial motion requesting the trial court to dismiss all of the charges filed against him on the ground that they were filed more than three years after the commission of the crimes and were beyond the three-year statute of limitations.² See § 16-5-401(1), 6 C.R.S. (2003) (three-year limitations period for felony theft). Upon agreement of the parties, the trial court deferred ruling on the motion until the end of McKinney's trial. At the conclusion of the prosecution's case, McKinney renewed his motion to dismiss all of the charges. The trial court denied the motion. It concluded that the evidence adduced at trial showed that the "date of discovery as to all of these matters was within the statute of limitations period." (emphasis added).

The jury convicted McKinney of all seven remaining charges.³ The trial court sentenced him as follows: three four-year sentences for the general theft convictions; three two-year sentences for the theft from an at-risk adult convictions; and one two-year sentence for the conspiracy to commit theft conviction. The general theft sentences were imposed to run consecutively, and the remaining four sentences were imposed to run concurrently with each other and with the general theft sentences. McKinney received a total sentence of twelve years.

McKinney appealed all seven convictions to the court of appeals. The court of appeals affirmed McKinney's three convictions for general theft and the conviction for conspiracy, and reversed the three convictions for theft from an at-risk adult, leaving intact a twelve-year sentence. The court of appeals held that the discovery tolling provision of the statute of limitations-which tolls the running of the limitation period until the victim discovers the crime-is not applicable to thefts against at-risk adults. The court therefore concluded that the statute of limitations barred prosecution of the charges for theft from an at-risk adult because the charges were filed more than three years from when the criminal acts took place.

II.

We disagree with the court of appeals and reverse. We hold that theft from an at-risk adult is an enhanced form of general theft. Because the discovery tolling provision of the statute of limitations, section 16-5-401(4.5), applies to general theft, it also includes theft from an at-risk adult. Accordingly, the period within which a prosecution for theft against an at-risk adult must be commenced does not begin to run until the time the victim discovers the criminal act.

A. Standard of Review

Whether the discovery tolling provision of the statute of limitations applies to thefts committed against at-risk adults is a question of law that we review de novo. Mortgage Invs. Corp. v. Battle Mountain Corp., 70 P.3d 1176, 1183 (Colo.2003). When construing the statutes at issue in this case, our fundamental responsibility is to determine and give effect to the General Assembly's intent in enacting the statutes. Whitaker v. People, 48 P.3d 555, 558 (Colo.2002). If the plain language of the statutes clearly expresses the legislative intent, we must give effect to the ordinary meaning of the statutory language. Id.

B. Theft Against At-Risk Adults

The Colorado Criminal Code contains an entire article dedicated to wrongs committed against at-risk adults. § 18-6.5-101 to -106, 6 C.R.S. (2003) ("Article 6.5"). In the legislative declaration to Article 6.5, the General Assembly expressed its intent to impose more severe penalties for specified crimes when the victim is "at-risk." § 18-6.5-101, 6 C.R.S. (2003).⁴

The General Assembly defined two categories of victims that qualify for this heightened protection: at-risk adults and at-risk juveniles. § 18-6.5-101. An at-risk adult is "any person who is sixty years of age or older or any person who is eighteen years of age or older and is a person with a disability." § 18-6.5-102(1), 6 C.R.S. (2003).

Within Article 6.5, section 18-6.5-103, 6 C.R.S. (2003) enumerates which criminal acts are subject to increased penalties when committed against an at-risk victim. Section 18-6.5-103(5) states that:

Any person who commits theft, and commits any element or portion of the offense in the presence of the victim, as such crime is described in section 18-4-401(1), and the victim is an at-risk adult or an at-risk juvenile, commits a class 5 felony if the value of the thing involved is less than five hundred dollars or a class 3 felony if the value of the thing involved is five hundred dollars or more. Theft from the person of an at-risk adult or an at-risk juvenile by means other than the use of force, threat, or intimidation is a class 4 felony without regard to the value of the thing taken.

§ 18-6.5-103(5). This section thus imposes a more severe punishment for the commission of theft against at-risk adults as compared to the commission of theft against other victims, but it does not list elements that constitute the commission of theft against an at-risk adult. Instead, it refers back to the general theft statute by cross referencing that statute. As a consequence, the theft against at-risk adults provision does not apply unless a defendant's conduct constitutes theft under the general theft statute.⁵

C. Discovery Tolling Provision of the Statute of Limitations

Criminal statutes of limitation prescribe the time period within which the prosecution must commence an action on a claim. They serve these purposes: (1) to protect individuals from defending themselves against stale charges; (2) to prevent punishment for acts committed in the remote past; and (3) to insure that accuseds are informed of the decision to prosecute and the general nature of charges with sufficient promptness to allow them to prepare their defenses before evidence of their innocence is weakened by age. Higgins v. People, 868 P.2d 371, 373 (Colo.1994).

The limitations period for most crimes begins to run at the time that the criminal act takes place. For example, a prosecution for most felonies must commence within three years from the commission of the crime. § 16-5-401(1). However, the General Assembly...