People v. Hoggard
2017 COA 88
| Colo. Ct. App. | 2017Background
- During a contentious custody dispute, Hoggard forwarded to the court-appointed child and family investigator (CFI) an email chain that included five allegedly fabricated sentences making it appear her ex-husband threatened her.
- The ex-husband denied authoring the threatening portion, provided the CFI with an original email lacking the threats, and reported the falsification to police.
- Police accessed Hoggard’s email and found a sent message containing the threatening language; Hoggard was charged with second degree forgery (misdemeanor) and attempt to influence a public servant (class 4 felony).
- At trial the prosecutor tendered jury instructions: the forgery instruction tracked felony-forgery elements (including a document-type element), and the attempt-to-influence instruction did not set off the statutory mens rea (“intent”) as applying to each element; defense counsel did not object to the tendered instructions.
- On appeal Hoggard argued unpreserved instructional errors: (1) constructive amendment/erroneous instruction for second degree forgery (instructed on felony forgery), and (2) failure to require intent for each element of attempt to influence a public servant; the People argued invited error or waiver barred review.
- The court held (1) invited-error and waiver doctrines did not bar plain-error review under these facts, (2) the forgery instruction was erroneous but did not constructively amend the charge and was not plain error, and (3) the attempt-to-influence instruction was erroneous and obvious but did not cause a reasonable probability of prejudice, so not plain error; convictions affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether defense counsel’s silence at instruction conference bars appellate review (invited error/waiver) | The People: counsel’s approval invited error or waived review | Hoggard: failure to object was inadvertent; plain-error review should apply | Court: neither invited error nor waiver applied; plain-error review available |
| Whether instructing on felony forgery constructively amended the second-degree forgery charge | The People: instruction tracked available elements; no prejudice | Hoggard: jury was instructed on an uncharged, more serious offense (felony forgery) — constructive amendment requires reversal | Court: second-degree forgery is a lesser included offense under § 18-1-408(5)(c); no constructive amendment; error not plain because no prejudice |
| Whether the attempt-to-influence instruction must express that “intent” applies to each element | The People: conduct elements (attempt; by deceit) are inherently intentional; separate mens rea element unnecessary | Hoggard: statutory presumption requires mens rea apply to all elements and instruction failed to do so | Court: instruction was erroneous and obvious — mens rea applies to each element and should be offset, but omission was harmless because jury verdicts show intent findings cured any prejudice |
| Whether errors amounted to plain error warranting reversal | The People: any error invited/waived or not prejudicial | Hoggard: errors were obvious and undermined trial fairness | Court: plain-error standard applied; errors existed and were obvious in part but no reasonable probability they contributed to convictions; affirmed |
Key Cases Cited
- People v. Zapata, 779 P.2d 1307 (Colo. 1989) (invited-error doctrine explained)
- Horton v. Suthers, 43 P.3d 611 (Colo. 2002) (acquiescence as basis for invited error)
- People v. Stewart, 55 P.3d 107 (Colo. 2002) (strategic omission can constitute invited error)
- People v. Auman, 109 P.3d 647 (Colo. 2005) (mens rea must be applied to all elements; plain error where not offset)
- People v. Bossert, 722 P.2d 998 (Colo. 1986) (offsetting mens rea modifies all conduct elements)
- People v. Rodriguez, 914 P.2d 230 (Colo. 1996) (constructive amendment doctrine articulated)
- People v. Miller, 113 P.3d 743 (Colo. 2005) (plain-error review standard for unpreserved jury instruction claims)
- People v. Sepulveda, 65 P.3d 1002 (Colo. 2003) (affirmance on lesser included offense where jury instructed on greater offense)