v. Rieger, 2019 COA 14

Defendant Justin Rieger, while jailed on assault-related charges, exchanged messages with his girlfriend via the jail’s Telmate electronic messaging system.
The girlfriend uploaded a photograph to Telmate showing bruises she said Rieger caused; an investigator reviewing Rieger’s Telmate account saw the photo and their correspondence.
Rieger asked the girlfriend to remove the photo from Telmate because it could "incriminate" him; she removed it from the account two days after uploading.
Prosecutors charged Rieger in a separate case with solicitation to commit tampering with physical evidence under § 18-8-610, C.R.S., after a preliminary hearing the district court dismissed the charge, holding the statute’s definition of "physical evidence" did not cover electronic records.
The People appealed the dismissal under § 16-12-102(1); the Court of Appeals reviewed statutory interpretation de novo and the probable-cause ruling for abuse of discretion.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether an electronically stored photograph is "physical evidence" under § 18-8-610	Electronic images qualify as photographs/records and fall within the statutory definition of "physical evidence."	The statutory phrase "of physical substance" excludes electronic records; digital files are not "physical evidence."	Electronically stored digital images (including duplicates) qualify as "physical evidence."
Whether removal/deletion of a duplicate image from Telmate can show specific intent to impair availability for prosecution	Rieger’s request to remove the Telmate photo supports probable cause he intended to make the image unavailable for use in an official proceeding.	Because the uploaded file was a copy (not an original) and other duplicates may exist, deleting it cannot demonstrate intent to impair verity or availability.	The evidence (Rieger asking removal because it would "incriminate" him) sufficed at the low probable-cause standard to infer specific intent to impair availability; case should not have been dismissed.

Holliday v. Bestop, Inc., 23 P.3d 700 (Colo. 2001) (statutory language unambiguous; no resort to construction rules)
People v. Hall, 999 P.2d 207 (Colo. 2000) (standard of review for probable cause at preliminary hearing)
People v. Castro, 854 P.2d 1262 (Colo. 1993) (abuse of discretion standard described)
People v. Atencio, 140 P.3d 73 (Colo. App. 2005) (legislative intent of tampering statute to protect administration of justice)
State v. William M., 692 S.E.2d 299 (W. Va. 2010) (digital images are "photographs" under rules of evidence)
Costanzo v. State, 152 So.3d 737 (Fla. Dist. Ct. App. 2014) (deletion of a file from one device after distribution may be insufficient to prove intent to impair availability)