Opinion by Judge GABRIEL.
¶ 1 In this appeal by the People from the district court's order dismissing various theft by deception charges against the defendant, Kirk Mitchell Cito, we must determine the meaning of section 16-5-401(4.5), C.R.S.2012. That statute provides, in pertinent part, that "[t]he period within which a prosecution must be commenced shall begin to run upon discovery of the criminal act" for, among other offenses, theft. § 16-5-401(4.5)(c), C.R.S.2012
¶ 2 As a matter of first impression, we conclude that the phrase "discovery of the criminal act" in this statute refers to the point at which the victim or the state knew or through the exercise of reasonable diligence should have known of the facts establishing the criminal act at issue. We further conclude that, here, the criminal act was theft by deception, not merely the act of obtaining the money.
¶ 3 Because the district court did not apply this standard, we vacate that court's dismissal order and remand for further proceedings.
¶ 4 In 2006, Cito, a veterinarian, was hired as the hospital director for an animal hospital. Each month, he sent to the hospital's certified public accountant (CPA) a packet of documents that included, among other things, a list of the expenses that he had incurred and checks that he had written on the hospital's behalf, receipts for charges that he had made to the hospital's credit card, and other documents supporting the listed expenses. The CPA then compiled the information and entered it into a computerized accounting program, and she prepared for the hospital's owner a monthly report based on the information that Cito had provided.
¶ 5 In February 2011, the owner expressed concern to the CPA about the information that Cito had provided in his monthly packets. Accordingly, the CPA went back through the packets that Cito had provided over the prior five years and, among other things, reconciled Cito's time sheets, the hours that he had earned for so-called personal time off, and payroll records. Upon completion of this process, the CPA concluded that Cito had not been truthful in the documentation that he had submitted. Specifically, Cito was entitled to additional compensation for any unused personal time off. He was not entitled to such additional compensation, however, if he actually used the personal time. The CPA determined that Cito had paid himself approximately $53,700 for unused personal time off, even though he had actually taken the time off and, thus, was not entitled to receive such payments.
¶ 6 Based on this information, on December 5, 2011, Cito was charged with ten counts of theft by deception in violation of section 18-4-401(1) and (4), C.R.S.2012. Four of those counts, and a portion of a fifth count, alleged thefts committed more than three years before the charges were filed.
¶ 7 Cito moved to dismiss those five counts, arguing that they were barred by the three-year statute of limitations set forth in section 16-5-401(1)(a), C.R.S.2012.
¶ 8 In response, the prosecution argued that (1) pursuant to section 16-5-401(4.5), for charges of theft, the limitations period does not commence until the date of discovery; (2) here, the theft was not discovered until February 2011; and (3) therefore, all of the charges were timely filed.
¶ 10 The prosecutor then asked the court to clarify its ruling, and the following discussion ensued:
¶ 11 The court thus dismissed the four charges alleging thefts that were purportedly completed more than three years before the charges were filed (the court did not dismiss the fifth count, because most of the acts alleged in that count occurred within the applicable limitations period). As to the dismissed charges, the court's minute order summarized,
¶ 12 The People now appeal.
¶ 13 The People contend that the district court erred in ruling that "discovery of the criminal act" under section 16-5-401(4.5) occurred at the time Cito obtained money as a result of his submitting his monthly financial packets. They claim that this ruling ignored the fact that the theft was by deception and that the hospital did not actually discover the
¶ 14 The meaning of the phrase "discovery of the criminal act" in section 16-5-401(4.5) presents an issue of statutory construction that we review de novo. See People v. Daniels, 240 P.3d 409, 411 (Colo.App.2009). Our primary purpose in statutory construction is to ascertain and give effect to the intent of the General Assembly. Id. We first look to the language of the statute, giving words and phrases their plain and ordinary meaning. Id. We read words and phrases in context and construe them according to their common usage. Id.
¶ 15 In addition, we must interpret a statute in a way that best effectuates the purpose of the legislative scheme. Id. When a court construes a statute, it should read and consider the statute as a whole and interpret it in a manner giving consistent, harmonious, and sensible effect to all of its parts. Id. In doing so, a court should not interpret the statute so as to render any part of it either meaningless or absurd. Id.
¶ 16 If the statute is unambiguous, we look no further. Id. If the statute is ambiguous, however, then we may consider legislative history, prior law, the underlying purpose or policy of the statute, and the consequences of a given construction. Id. "A statute is ambiguous when it `is capable of being understood by reasonably well-informed persons in two or more different senses.'" Jefferson Cnty. Bd. of Equalization v. Gerganoff, 241 P.3d 932, 935 (Colo.2010) (quoting 2A Norman J. Singer & J.D. Shambie Singer, Statutes & Statutory Construction § 45:2, at 13 (7th ed. 2007)).
¶ 17 As an initial matter, we conclude that the phrase "discovery of the criminal act" is reasonably susceptible of several different interpretations. For example, the term "discovery" can be read in a subjective sense, that is, to refer to when the victim or the state actually discovered the criminal act. See Black's Law Dictionary 533 (9th ed. 2009) (defining "discovery" as "[t]he act or process of finding or learning something that was previously unknown"). The term can also be read in an objective sense, however, to refer to when a person discovered or reasonably should have discovered the criminal act. See id. (defining "discovery rule," in pertinent part, as "[t]he rule that a limitations period does not begin to run until the plaintiff discovers (or reasonably should have discovered) the injury giving rise to the claim"; "[t]he discovery rule usu[ally] applies to injuries that are inherently difficult to detect").
¶ 18 Moreover, the phrase "discovery of the criminal act" can reasonably be read to require subjective knowledge that the crime at issue was committed, or mere knowledge of the acts that would have alerted a reasonable person that a crime was committed, whether or not the person recognized that the acts, in fact, constituted a crime.
¶ 19 And the phrase "criminal act" is also reasonably susceptible of various interpretations. For example, that phrase can be construed to refer solely to the actus reus, and not the mens rea, of a crime. See Swift v. Fitchburg Mut. Ins. Co., 45 Mass.App.Ct. 617, 700 N.E.2d 288, 292, 295 (1998). It also can be construed, however, to refer to all elements required for conviction, including the mens rea. See id. at 295; see also In re Larson, 340 B.R. 444, 448-49 (Bankr.D.Mass. 2006) (noting different definitions of "criminal act"), aff'd sub nom. Larson v. Howell, No. Civ. 06-11662-RWZ, 2007 WL 1444093 (D.Mass. May 15, 2007) (unpublished memorandum of decision), aff'd, 513 F.3d 325 (1st Cir.2008).
¶ 20 Accordingly, we conclude that section 16-5-401(4.5) is ambiguous and thus look to legislative history, prior law, the underlying purpose of the statute, and the consequences of a given construction. See Daniels, 240 P.3d at 411.
¶ 21 In terms of legislative history, we note that section 16-5-401(4.5) was enacted as part of two omnibus crime bills. See Ch. 73,
¶ 22 Accordingly, the legislative history suggests that a victim's receipt from the defendant of volumes of information in which a pertinent fact might be buried does not alone suffice to establish the requisite discovery of the criminal act. Moreover, as applicable to theft by deception, the legislative history suggests that the "criminal act" to be discovered subsumes both the obtaining or exercising control over something of value and the fact that the defendant did so by deception. Thus, the legislative history reflects concern that the fact of the deception can be buried in financial statements or computer printouts, making the "criminal act" difficult to detect (as the present case shows, a defendant's obtaining or exercising control over the property at issue is frequently not itself difficult to detect). To the extent that the district court here suggested that, for purposes of section 16-5-401(4.5), a court need only look to the obtaining of the property without considering the deception, we disagree with that interpretation.
¶ 23 As to the prior law, the parties have not cited, and we have not found, Colorado case law construing a provision like the one at issue here (i.e., an accrual provision relating to the statute of limitations in a criminal case). In civil cases, however, Colorado courts have long, and with apparent consistency, interpreted the term "discovery," when used in the context of claim accrual provisions, to refer to the point at which the aggrieved party knew or in the exercise of reasonable diligence should have known of his or her claim.
¶ 24 Although we acknowledge that rules that apply in civil cases do not always translate well to criminal cases, we believe that the civil cases are at least informative here. For example:
¶ 25 Case law also tends to support the view that the phrase "criminal act," as applicable to the theft at issue here, is not limited to the act of obtaining the money received, but rather also includes the deception. Cf. Larson, 340 B.R. at 448-50 (citing different definitions of "criminal act," each of which required both the actus reus and the mens rea, although the court declined to conclude that "criminal act" required a conviction); Swift, 700 N.E.2d at 295 (rejecting an insurer's argument that the phrase "criminal act" in a policy exclusion referred only to the actus reus and not the mens rea).
¶ 26 The purposes of sections 16-5-401 generally and section 16-5-401(4.5) in particular support interpreting "discovery of the criminal act" here to refer to the point at which the victim or the state knew or through the exercise of reasonable diligence should have known of the theft by deception.
¶ 27 Our supreme court has stated that criminal statutes of limitation like section 16-5-401 serve the following purposes:
People v. McKinney, 99 P.3d 1038, 1042 (Colo.2004).
¶ 28 The goal of section 16-5-401(4.5), in turn, is
Id. at 1044-45 (citations omitted).
¶ 29 Reading the goals of these statutes together reveals a dual legislative purpose of requiring the prosecution to bring claims promptly while at the same time allowing some leeway for crimes that are susceptible of being concealed. To allow the prosecution to delay asserting claims until a victim or the state subjectively knows of the criminal act, however, would risk defeating these dual purposes. Specifically, such an interpretation would allow a prosecutor to extend his or her time in which to file charges, sometimes for a lengthy period, based merely on the victim's statement that he or she did not subjectively know of the crime. This would be true even if the victim knew every fact that would have alerted an objectively reasonable person that a crime had been committed. Such an interpretation would be absurd, and we must avoid such interpretations. See Daniels, 240 P.3d at 411.
¶ 30 Moreover, to allow such a delay in bringing charges would sanction the prosecution of stale charges, allow punishment for acts committed in the remote past, and hinder defendants' ability to prepare their defenses before evidence of their innocence is weakened by age, precisely what section 16-5-401 is intended to avoid. See McKinney, 99 P.3d at 1042. In addition, allowing such a delay would provide a windfall to victims and prosecutors who are dilatory in their investigations.
¶ 32 For these reasons, the order is vacated, and the case is remanded to the district court with instructions that that court reconsider Cito's motion to dismiss in light of the statutory construction described herein. We leave to the district court's discretion whether to hear additional evidence as to when the hospital or the state knew or through the exercise of reasonable diligence should have known of the alleged thefts by deception. If this question can be resolved on the basis of undisputed facts, then the district court may do so before trial. If, however, the determination of this question depends on the resolution of disputed facts, then the issue must be submitted to the jury with appropriate instructions. See People v. Cullen, 695 P.2d 750, 751 (Colo.App.1984) (noting that when the determination of the court's jurisdiction depends on the resolution of disputed facts, the issue must be submitted to the jury with appropriate instructions); see also People v. Verbrugge, 998 P.2d 43, 44 (Colo.App.1999) (noting that the statute of limitations in a criminal case is jurisdictional).
Judge LICHTENSTEIN and Judge KAPELKE
