v. People, 2020 CO 54

During a custody dispute Hoggard forwarded an email to the court-appointed child and family investigator (CFI) that contained threatening/concerning language; the CFI sent it to Javier, who denied writing the threatening portions and reported the email as falsified.
The People charged Hoggard with attempt to influence a public servant (class 4 felony) and second-degree forgery (class 1 misdemeanor, the instrument identified as an email).
At trial Hoggard did not object to two jury instructions: (1) the attempt-to-influence instruction used the phrase “with the intent” but did not explicitly apply that mental state to every element; (2) the second-degree forgery instruction included language from the felony-forgery statute (requiring the instrument to affect a legal right).
The jury convicted Hoggard on both counts; the court of appeals affirmed. Hoggard sought certiorari to the Colorado Supreme Court challenging the instructions.
The Colorado Supreme Court assumed error on both instructions but held neither error was plain: the attempt instruction was not obviously erroneous or prejudicial; the forgery instruction did not constructively amend the information and, although obviously erroneous, caused no prejudice.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the attempt-to-influence instruction was plain error because it failed to apply the intent mens rea to every element	Hoggard: the instruction violated §18-1-503(4) by not applying “with the intent” to all elements, so plain error	People: the instruction tracked the statutory language, model jury instruction, and precedent (Norman); any error was not obvious or prejudicial	Held: assuming error, it was not plain — not obvious given statute/model/precedent and no reasonable possibility it affected verdict (defense focused on identity, not intent)
Whether instructing the jury using felony-forgery language constructively amended the second-degree forgery charge	Hoggard: the instruction changed an essential element (required proof that instrument affected a legal right), exposing her to conviction for an uncharged offense	People: the added language only required proof that the forged email had legal effect — it did not convert the document into a different kind of instrument or surprise the defendant	Held: no constructive amendment — defendant was charged with forging an email and convicted of forging an email; although the inclusion of felony-language was obvious error, it was not plain because it did not prejudice Hoggard

Copeland v. People, 2 P.3d 1283 (Colo. 2000) (mens rea required for criminal liability and applies to all elements absent contrary intent)
People v. Norman, 703 P.2d 1261 (Colo. 1985) (sets out critical elements of attempt to influence a public servant)
People v. DeGreat, 428 P.3d 541 (Colo. 2018) (standard: review jury instructions de novo)
People v. Garcia, 28 P.3d 340 (Colo. 2001) (plain-error review of unpreserved jury-instruction objections)
People v. Miller, 113 P.3d 743 (Colo. 2005) (plain error requires obvious and substantial error affecting substantial rights)
People v. Weinreich, 119 P.3d 1073 (Colo. 2005) (jury instructions should substantially track statutory language)
People v. Rodriguez, 914 P.2d 230 (Colo. 1996) (constructive amendment occurs when an instruction changes an essential element of the charged offense)
People v. Shields, 822 P.2d 15 (Colo. 1991) (mutually exclusive statutory offenses analysis)