2012 COA 221
Colo. Ct. App.2012Background
- Cito, a veterinarian, was hospital director and submitted monthly expense packets with supporting documents to the CPA.
- CPA reconciled time sheets and payroll, and found Cito had paid himself for unused PTO he wasn’t entitled to.
- In December 2011, Cito was charged with ten counts of theft by deception under §18-4-401(1).
- Several counts alleged thefts that occurred more than three years before charges were filed.
- The district court dismissed four counts as time-barred, applying a discovery-of-the-criminal-act standard that money obtaining was the act.
- The People appealed, arguing discovery tolling applies to theft by deception and includes deception as part of the criminal act.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| What does 'discovery of the criminal act' mean in §16-5-401(4.5)? | Discovery occurs when the theft by deception is discovered (Feb. 2011). | Discovery occurs at the moment money is obtained, separate from deception. | Ambiguous; must include deception, not just money obtaining. |
| Does the 'criminal act' in theft by deception include the deception itself? | Criminal act includes obtaining money by deception (the act), not only money receipt. | Criminal act is limited to the act of obtaining the money. | Criminal act includes both obtaining the money and the deception; not limited to receipt. |
| What remand procedure is required after construing the statute? | If facts are undisputed, court can decide; otherwise jury with instructions. | Not stated separately; focus is on statute construction. | Remand to reconsider dismissal; may hear additional evidence or submit to jury as appropriate. |
Key Cases Cited
- People v. Daniels, 240 P.3d 409 (Colo.App.2009) (statutory construction framework; interpret within context)
- People v. McKinney, 99 P.3d 1088 (Colo.2004) (purpose of limitations; protections against stale charges)
- Pipe v. Smith, 5 Colo. 146 (1879) (discovery by aggrieved party; prudence/diligence standard)
- First Interstate Bank of Denver, N.A. v. Ber-enbaum, 872 P.2d 1297 (Colo. App.1993) (discovery rule in civil context; informing approach)
- Owens v. Brochner, 172 Colo. 525, 474 P.2d 603 (1970) (discovery-based accrual in medical malpractice context)
- State v. Wilson, 573 N.W.2d 248 (Iowa 1998) (discovery in criminal fraud context; probable cause standard)
- People v. Zamora, 134 Cal.Rptr. 784, 557 P.2d 75 (Cal. 1976) (accrual upon discovery; mentions discovery and lack of knowledge)