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People v. McKinney1/30/2003
JUDGMENT AFFIRMED IN PART, REVERSED IN PART
Rothenberg and Webb, JJ., concur
Opinion Modified, and As Modified, Petitions for Rehearing DENIED
Defendant, Daniel McKinney, appeals the judgment of conviction entered upon jury verdicts finding him guilty of three counts of theft, three counts of theft from an at-risk adult, and conspiracy to commit theft. We affirm in part and reverse in part.
Between 1994 and 1996, defendant and his wife took money totaling $70,000 from three victims: $20,000 from W.P., $20,000 from D.P., and $30,000 from S.C. All three were his insurance clients.
The disputed issues at trial were whether defendant had obtained the money through deception and whether he intended permanently to deprive the victims of their money. Defendant characterized the money as loans he intended to repay, but had not repaid before trial.
At trial, defendant's wife testified that she had been charged in connection with the thefts and pleaded guilty to conspiracy to commit theft. In the course of pleading guilty, she prepared a written statement that also implicated defendant in the thefts. She further testified that she pleaded guilty to "stay out of jail."
I. Statute of Limitations
Defendant contends his convictions for theft from at-risk adults and conspiracy must be vacated because the offenses occurred more than three years before the information was filed and are not subject to the tolling provision in the applicable statute of limitations. We agree in part.
Where a defendant raises a question of law on appeal, the standard of review is de novo. People v. Melillo, 25 P.3d 769, 777 (Colo. 2001).
Appellate courts review interpretations of statutes de novo. " court's primary task is to ascertain and give effect to the intent of the legislature." People v. Robertson, 56 P.3d 121, 123 (Colo. App. 2002). To determine intent, courts give statutory terms their commonly accepted meaning. "When the language is unambiguous and the legislative intent reasonably clear, we need not resort to other rules of statutory construction." People v. Triantos, 55 P.3d 131, 134 (Colo. 2002).
"When the [General Assembly] uses certain language in one part of a statute and different language in another part, a court should assume that different meanings are intended. Every word excluded from a statute must be presumed to have been excluded for a reason." People v. Auman, ___ P.3d ___, ___ (Colo. App. No. 99CA0016, Sept. 26, 2002); see also People v. J.H.H., 17 P.3d 159 (Colo. 2001)(courts should not presume the General Assembly used language idly).
A. Theft from At-Risk Adults
The statute concerning crimes against at-risk adults provides in pertinent part that " ny 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 . . . commits . . . a class 3 felony if the value of the thing involved is five hundred dollars or more." Section 18-6.5-103(5), C.R.S. 2002 (emphasis added). It further provides that when the theft occurs without the use of force, threats, or intimidation, the offense is a class 4 felony.
Generally, a prosecution for theft must be commenced within three years of the offense. See § 16-5-401(1)(a), C.R.S. 2002. However, the statute of limitations provides in pertinent part that " he period within which a prosecution must be commenced shall begin to run upon discovery of the criminal act . . . for. . . theft, pursuant to section 18-4-401." Section 16-5-401(4.5)(c), C.R.S. 2002.
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