2015 COA 152
Colo. Ct. App.2015Background
- Riley was charged after providing an altered hotel receipt (to his attorney, who gave it to the prosecutor) intended to show he was out of state when alleged assaults occurred; hotel records contradicted the receipt.
- Indictments: attempt to influence a public servant (18-8-306), tampering with physical evidence (18-8-610(1)(b)), and second-degree forgery (18-5-104). Trial was consolidated; Riley admitted altering the receipt but claimed a benign purpose.
- Jury convicted Riley of attempt to influence, tampering with physical evidence, and second-degree forgery; acquitted on assault and harassment. Sentences were concurrent.
- On appeal Riley challenged: (1) the jury instruction on second-degree forgery (claimed constructive amendment), (2) failure to define “attempt” (for the attempt-to-influence instruction) and “official proceeding” (for tampering), and (3) allowing the jury unfettered access to an audio recording during deliberations.
- Court of Appeals reversed the second-degree forgery conviction (instruction tracked felony forgery elements under 18-5-102 instead of the charged misdemeanor under 18-5-104), and affirmed the attempt-to-influence and tampering convictions.
Issues
| Issue | Plaintiff's Argument (People) | Defendant's Argument (Riley) | Held |
|---|---|---|---|
| Jury instruction on forgery constituted a constructive amendment | The instructions were proper and conviction can stand | Court instructed on felony forgery elements instead of the charged misdemeanor, violating notice | Reversed forgery conviction; instruction changed an essential element and allowed conviction of an uncharged offense |
| Whether court should have defined “attempt” by reference to criminal-attempt statute | No separate attempt definition required because §18-8-306 proscribes attempting to influence (not an underlying freestanding offense) | Trial court should have given §18-2-101 definition of attempt; term has technical meaning | Affirmed; no error in declining to incorporate §18-2-101 — statute does not import that definition and doing so would be illogical |
| Whether court should have defined “official proceeding” for tampering count | Omission harmless; pending charges made relation to an official proceeding clear | Failure to give statutory definition prejudiced jury determination of a pending/prospective official proceeding | Affirmed; any omission not plain error — issue was not contested and record supported the element |
| Allowing jury unfettered access to audio recording during deliberations | Jury may review exhibits; access here did not unduly prejudice defendant | Unrestricted access unduly emphasized recording; court should have limited use per DeBella | Affirmed convictions despite abuse of discretion — court failed to assess prejudice but error was harmless given other strong evidence and non-inflammatory nature of recording |
Key Cases Cited
- Madden v. People, 111 P.3d 452 (Colo. 2005) (notice of charges is a due process requirement)
- Rodriguez v. People, 914 P.2d 230 (Colo. 1996) (constructive amendment doctrine; cannot convict of uncharged crime)
- Skidmore v. People, 390 P.2d 944 (Colo. 1964) (distinguishing charged offense and jury instruction elements)
- Jefferson v. People, 934 P.2d 870 (Colo. App. 1996) (convicted under instructions for a different crime constitutes constructive amendment)
- Petschow v. People, 119 P.3d 495 (Colo. App. 2004) (instructional error and constructive amendment discussion)
- Pahl v. People, 169 P.3d 169 (Colo. App. 2006) (jury instruction standards; reversible error analysis)
- Griego v. People, 19 P.3d 1 (Colo. 2001) (court must define terms that have a technical or particular legal meaning)
- DeBella v. People, 233 P.3d 664 (Colo. 2010) (trial court must assess potential prejudice before allowing jury unfettered access to exhibits)
- Miller v. People, 113 P.3d 743 (Colo. 2005) (plain-error standard for jury instruction omissions)
- Norman v. People, 703 P.2d 1261 (Colo. 1985) (elements of attempt-to-influence offense)
- Leonard v. People, 673 P.2d 37 (Colo. 1983) (need to explain criminal-attempt elements when accepting guilty pleas)
- Tucker v. People, 232 P.3d 194 (Colo. App. 2009) (sufficiency review of attempt-to-influence conviction; discussion of substantial-step concept)