The People of the State of Colorado v. David Delbert Rediger
No. 15SC326
The Supreme Court of the State of Colorado
April 30, 2018
2018 CO 32
JUSTICE GABRIEL delivered the Opinion of the Court.
Certiorari to the Colorado Court of Appeals, Court of Appeals Case No. 12CA1386
ADVANCE SHEET HEADNOTE
April 30, 2018
2018 CO 32
No. 15SC326, People v. Rediger—Public Employee—Invited Error—Waiver—Constructive Amendment—Plain Error Review
This case requires the supreme court to decide two questions: (1) whether the owner-director of a nonprofit school regulated by various governmental entities is a “public employee” within the meaning of section
As to the first question, the court concludes that “public employee” means an employee of a governmental entity and that therefore an employee of a nonprofit school is not a public employee. Accordingly, the court agrees with the court of appeals division‘s decision that the respondent‘s conviction for interference with a public employee in a public building cannot stand.
Accordingly, the supreme court affirms in part and reverses in part the court of appeals division‘s judgment.
The People of the State of Colorado,
v.
Respondent/Cross-Petitioner:
David Delbert Rediger.
Judgment Affirmed in Part and Reversed in Part
en banc
April 30, 2018
Attorneys for Petitioner/Cross-Respondent:
Cynthia H. Coffman, Attorney General
Brock J. Swanson, Assistant Attorney General
Denver, Colorado
Attorneys for Respondent/Cross-Petitioner:
Douglas K. Wilson, Colorado State Public Defender
Shann Jeffrey, Deputy State Public Defender
Denver, Colorado
JUSTICE GABRIEL delivered the Opinion of the Court.
¶2 With regard to the first conviction, this case requires us to decide whether the owner-director of a nonprofit school regulated by various governmental entities is a “public employee” within the meaning of section
¶4 For these reasons, we affirm the portion of the division‘s judgment dismissing with prejudice Rediger‘s conviction under section
I. Facts and Procedural History
¶5 David Rediger drove to the Rocky Mountain Youth Academy (the “Academy“)—a nonprofit day treatment school that serves students who are not succeeding in public school—to speak with Stacey Holland, the Academy‘s owner and director. Holland and
¶6 Holland and Rediger gave conflicting accounts of the ensuing encounter. Holland said that Rediger pulled into the Academy parking lot at about 10:30 in the morning, demanded to talk right then in order to settle things, refused to leave despite Holland‘s repeated requests, and followed her into the Academy‘s classroom, where he had another confrontation with her, stating that if he did not immediately get the matter settled, then he would tell the sheriff‘s department that her husband had stolen a diesel truck. Holland characterized Rediger‘s behavior as “very aggressive” and said that she “was very scared” and “felt really threatened” by Rediger‘s conduct. Rediger conceded that he did not initially leave when asked to do so, but he said that he never stepped inside the school building and that he “was trying not to make a scene at the school.”
¶7 Based on this incident, the People charged Rediger with intimidating a witness or victim under section
On or about December 4, 2008, David Delbert Rediger, on the premises of an educational institution or at or in any building or other facility being used by an educational institution, unlawfully and willfully impeded the staff or faculty of the institution in the lawful performance of their duties or impeded a student of the institution in the lawful pursuit of his or her educational activities through the use of restraint, abduction, coercion, or intimidation or when force and violence were present or threatened; in violation of section
C.R.S. 18-9-109(2) .
The elements of the crime of Interference with Staff, Faculty, or Students of an Educational Institution are:
1. That the defendant,
2. in the County of Conejos, State of Colorado, on or about December 4, 2008
3. was on or near the premises or facilities of any educational institution, and
4. knowingly,
5. denied to students, school officials, employees, or invitees,
6. lawful use of the property or facilities of the institution.
¶9 Defense counsel confirmed that he had received the proposed instructions and read them when the prosecutor sent them, but defense counsel made no statements at that time regarding the above-quoted proposed instruction.
¶10 The case then proceeded to trial, and after the close of the evidence but before the court charged the jury, the court asked whether defense counsel was “satisfied with the instructions.” Defense counsel replied, “Yes. Defense is satisfied.” At no time did defense counsel object to the proposed instruction tracking section
¶12 Rediger appealed, arguing, as pertinent here, that insufficient evidence supported his conviction under section
¶13 In a partially split, published opinion, a division of the court of appeals affirmed in part and reversed in part. With respect to Rediger‘s sufficiency claim, the division concluded that “public employee” refers to “a victim employed by a public entity” and that the trial court had plainly erred in entering judgment on Rediger‘s conviction under section
¶14 Judge Richman specially concurred. Although he agreed with the result reached by the majority, he rejected the majority‘s premise that plain error review applies to sufficiency challenges raised for the first time on appeal, and he disagreed with the framework derived from People v. Lacallo, 2014 COA 78, 338 P.3d 442, and People v. Heywood, 2014 COA 99, 357 P.3d 201, on which the majority had relied. Id. at ¶¶ 66-67, 411 P.3d at 918 (Richman, J., specially concurring).
II. Analysis
¶16 We first address the proper interpretation of “public employee” as that term is used in section
A. Public Employee
¶17 The People contend that the division erred in concluding that Holland was not a “public employee” within the meaning of section
1. Definition of “Public Employee”
¶18 We review issues of statutory construction de novo. Doubleday v. People, 2016 CO 3, ¶ 19, 364 P.3d 193, 196. If the language of the statute is clear and unambiguous, then we interpret the statute according to its plain meaning and look no further. See
¶19 Here, although
¶20 “Employee,” in turn, is ordinarily defined as “[s]omeone who works in the service of another person (the employer) under an express or implied contract of hire, under which the employer has the right to control the details of work performance.” Employee, Black‘s Law Dictionary (10th ed. 2014); see also Norton v. Gilman, 949 P.2d 565, 567 (Colo. 1997) (“Under the common law, the most important factor in determining whether a worker qualifies as an employee is the alleged employer‘s right to control the details of performance.“).
¶21 Applying these settled definitions, we conclude that the term “public employee” is unambiguous and means a person who works in the service of a governmental entity under an express or implied contract of hire, under which the governmental entity has the right to control the details of the person‘s work performance. See People v. Moore, 2013 COA 86, ¶ 13, 338 P.3d 348, 350 (“Accordingly, we interpret the phrase ‘public official or employee’ in section
¶22 We are not persuaded otherwise by the People‘s assertion that the General Assembly intended the phrase “public employee” to capture any employee who serves a governmental function, whether or not a governmental entity actually employs that person. Had the legislature intended such a broad application of section
2. Sufficiency of the Evidence
¶23 Having interpreted the term “public employee,” we now turn to the question of whether sufficient evidence supports the jury‘s finding that Holland was a public employee within the meaning of section
¶24 As an initial matter, we note that the People contend that Rediger‘s sufficiency claim should be reviewed only for plain error. This issue has divided divisions of our court of appeals, both as to whether a defendant must make a motion for a judgment of acquittal to preserve a sufficiency claim and whether unpreserved sufficiency claims should be reviewed de novo or only for plain error. Compare Rediger, ¶¶ 9-14, 411 P.3d at 910-11, and Lacallo, ¶¶ 4-24, 338 P.3d at 444-49, with People v. McCoy, 2015 COA 76M, ¶¶ 6-36, ___ P.3d ___, and People v. Randell, 2012 COA 108, ¶ 30, 297 P.3d 989, 997-98. Indeed, we have granted certiorari to resolve this division split.3
¶25 Under the division‘s view, when analyzing the evidence requires the preliminary interpretation of a statute, the court must first decide whether the error was obvious. Id. at ¶ 12, 411 P.3d at 910. The division indicated that an error of this nature would not be obvious if determining the meaning of the operative statutory terms under then-existing Colorado authority would be difficult. Id. Conversely, the error would be obvious if the statutory language was unambiguous, even if the operative statutory terms had not yet been interpreted and no previous case law would have alerted the trial court to the error. Id. at ¶ 13, 411 P.3d at 910. Applying this analysis to the case before it, the division concluded that the term “public employee” was unambiguous and that Holland was not a public employee. Id. at ¶¶ 16-19, 28-37, 411 P.3d at 911-913. Accordingly, Rediger‘s conviction under section
¶26 Here, whether we were to apply the division‘s analysis or to review this issue de novo, our analysis is functionally the same and produces the same result. As noted above, we believe that the term “public employee” is unambiguous and means a person
¶27 Notwithstanding the foregoing, the People urge us to conclude that Holland was a public employee for purposes of the statute because she was employed not only by the Academy but also, effectively, by the various governmental entities that accredit, license, monitor, audit, and inspect the Academy, including the Colorado Department of Education, the Colorado Department of Human Services, and the Colorado Department of Health. For three reasons, we are unpersuaded.
¶28 First, regulatory activities like those on which the People rely do not suffice to create an employment relationship at common law, and the People cite no applicable law to the contrary. In an ordinary employment relationship, an employer must possess the right to control the details of its employee‘s performance. Norton, 949 P.2d at 567. Here, although governmental entities may have had the authority to “check” the Academy‘s curriculum, to perform unannounced audits, and to send students for placement in the school (subject to the Academy‘s right to refuse those students), they
¶29 Second, the People point to no one governmental entity that they deem to be Holland‘s employer. Instead, they rely on the piecemeal involvement of various governmental entities to cast Holland as a generalized “public employee.” The People cite no applicable law supporting such a notion of an employee, and we have seen none.
¶30 Finally, in our view, the People‘s definition is overbroad because it would deem virtually all employees of regulated employers to be “public employees,” contrary both to our precedents and to the common understanding of the distinction between public, governmental entities and private, regulated entities. See Colo. Ass‘n of Pub. Emps., 804 P.2d at 143 (“Private nonprofit corporations are corporations formed by private individuals for a public purpose.... In contrast, public corporations are created as
¶31 For these reasons, we agree with the division that sufficient evidence did not support a finding that Holland was a “public employee.” Accordingly, like the division, we conclude that Rediger‘s conviction under section
B. Constructive Amendment
¶32 Rediger next asserts that his conviction for interference with the staff, faculty, or students of an educational institution under section
¶33 We first consider the doctrines of invited error and waiver, and we conclude that neither doctrine applies. Next, we conclude that, at most, Rediger forfeited his constructive amendment claim. As a result, we review for plain error, and we
1. Invited Error
¶34 The doctrine of invited error prevents a party from complaining on appeal of an error that he or she has invited or injected into the case; the party must abide the consequences of his or her acts. People v. Zapata, 779 P.2d 1307, 1309 (Colo. 1989). Invited error is a narrow doctrine and applies to errors in trial strategy but not to errors that result from oversight. People v. Wittrein, 221 P.3d 1076, 1082 (Colo. 2009). We have thus concluded that a party invites an error in a jury instruction when that party drafted or tendered the erroneous instruction. See, e.g., Zapata, 779 P.2d at 1308-10; see also Gray v. People, 342 P.2d 627, 630 (Colo. 1959) (“[W]e cannot consider the trial court to be in error for giving an instruction demanded by the defense.“).
¶35 Here, Rediger did not draft or tender the instruction at issue, nor did he request that the instruction be given or even discuss it on the record. Indeed, nothing in the record suggests that either he, the prosecution, or the trial court even noticed that the instruction tracked the wrong subsection of the statute. Accordingly, we agree with the division below that Rediger cannot fairly be said to have “injected” the error into this case. See Rediger, ¶ 60, 411 P.3d at 916. Therefore, he did not invite it.
¶36 We are not persuaded otherwise by the People‘s reliance on Horton v. Suthers, 43 P.3d 611, 619 (Colo. 2002), in which this court suggested that invited error may apply when “one party expressly acquiesces to conduct by the court or the opposing party.” In Horton, the director of the Department of Corrections expressly agreed that the
¶37 Rediger‘s general expression of “satisfaction” with the jury instructions here does not resemble the specific admissions and subsequent contradictions of the director in Horton. To the contrary, as noted above, the record before us bears no indication that Rediger was aware of the discrepancy between the jury instructions and his criminal information, let alone that he affirmatively injected that discrepancy. Rather, unlike in Horton, the record here suggests that the discrepancy between Rediger‘s criminal information and the jury instructions likely resulted from oversight, not intent or trial strategy.
¶38 Accordingly, we conclude that the doctrine of invited error does not bar appellate review of Rediger‘s constructive amendment claim.
2. Waiver and Forfeiture
¶39 Waiver, in contrast to invited error, is “the intentional relinquishment of a known right or privilege.” Dep‘t of Health v. Donahue, 690 P.2d 243, 247 (Colo. 1984) (emphases added). We “do not presume acquiescence in the loss of fundamental constitutional rights, and therefore indulge every reasonable presumption against waiver.” People v. Curtis, 681 P.2d 504, 514 (Colo. 1984).
¶41 Here, the People contend—and the division below concluded—that Rediger waived his objection to the constructive amendment and therefore extinguished any error when his counsel stated that counsel was “satisfied” with the jury instructions. We, however, are not convinced that this statement, standing alone, evinced Rediger‘s intentional relinquishment of a known right or privilege.
¶42 The record before us reveals no evidence, either express or implied, that Rediger intended to relinquish his right to be tried in conformity with the charges set forth in his charging document when he generally acquiesced to the jury instructions. See Donahue, 690 P.2d at 247 (acknowledging that a waiver may be express or implied but perceiving no waiver because Donahue‘s failure to raise an issue was not “the type of
¶43 Nor, as discussed above, do we perceive any evidence that Rediger knew of the discrepancy between the People‘s tendered jury instructions and the charging document. See Gov‘t of Virgin Islands v. Rosa, 399 F.3d 283, 293 (3d Cir. 2005) (perceiving no waiver but finding only a forfeiture when the record did not indicate that counsel knew of and considered the controlling law, despite his repeated acquiescence to the jury instructions). In fact, the record reveals no discussion of this particular instruction at all.
¶44 In these circumstances, we conclude that neglect, not intent, explains Rediger‘s lack of an objection to the constructive amendment. Accordingly, in our view, Rediger‘s acquiescence amounts to a forfeiture, not a waiver.
¶45 We are not persuaded otherwise by the People‘s assertions that Rediger‘s waiver is established by the facts that his counsel had an opportunity to review the proposed instructions before trial and confirmed that he had done so. Although these facts confirm that Rediger‘s counsel read the proposed instructions, they do not show Rediger‘s or counsel‘s knowledge of the discrepancy between the jury instructions and
¶46 In arguing for a waiver, the People appear to be requesting that we presume from Rediger‘s acquiescence an intentional relinquishment of a known right. As noted above, however, it has long been settled that we must indulge “every reasonable presumption against waiver.” Curtis, 681 P.2d at 514 (emphasis added).
¶47 Accordingly, we conclude that Rediger forfeited his constructive amendment argument, and we therefore review that argument for plain error.4
3. Plain Error
¶48 An error is plain if it is obvious and substantial and so undermines the fundamental fairness of the trial itself as to cast serious doubt on the reliability of the judgment of conviction. People v. Weinreich, 119 P.3d 1073, 1078 (Colo. 2005). A constructive amendment, in turn, occurs when a jury instruction “changes an essential
¶49 Here, pursuant to the criminal information and the jury‘s verdict, Rediger was charged with and convicted of violating section
¶50 The elemental jury instruction, in contrast, asked the jury to consider whether Rediger had violated section
¶51 The difference between these charges is manifest. Most notably for purposes here, the charged offense, section
¶52 Because we believe that the error here was obvious and substantial and so undermined the fundamental fairness of Rediger‘s trial as to cast serious doubt on the reliability of the judgment of conviction, see Weinreich, 119 P.3d at 1078, we conclude that the trial court plainly erred in allowing Rediger‘s conviction to stand in spite of the constructive amendment.
¶53 In so concluding, we are not persuaded by the People‘s contention that Rediger‘s charging document was “effectively amended” when the prosecution tendered the erroneous instructions. No law from this court, nor any of the cases cited by the People,
C. Remedy
¶54 Having thus found plain error, the question remains as to the proper remedy. Rediger asserts that the evidence did not support a finding of guilt under section
¶55 When confronted with a claim of insufficient evidence, we review the record de novo to determine whether the evidence, viewed in the light most favorable to the prosecution, was both substantial and sufficient to support the conclusion by a reasonable mind that the defendant was guilty beyond a reasonable doubt. People v. Perez, 2016 CO 12, ¶ 8, 367 P.3d 695, 697.
¶56 As pertinent here, Rediger‘s conviction under section
on the premises of any educational institution or at or in any building or other facility being used by any educational institution, [Rediger] willfully impede[d] the staff or faculty of such institution in the lawful performance
of their duties or willfully impede[d] a student of the institution in the lawful pursuit of his or her educational activities through the use of restraint, abduction, coercion, or intimidation or when force and violence [were] present or threatened. § 18-9-109(2) .
¶57 Here, the evidence presented, when viewed in the light most favorable to the People, showed that Rediger drove to the Academy during the school day and spoke to Holland concerning the hay-theft charges that she and her husband had pursued against Rediger. Holland repeatedly asked Rediger to leave, but he refused to do so. Instead, at least according to Holland, Rediger then followed her into the classroom, acted “very aggressive,” and stated that if he did not immediately get the matter settled, then he would tell the sheriff‘s department that her husband had stolen a diesel truck. Rediger‘s conduct scared Holland, and she stated that she felt “really threatened” by it. Finally, Rediger relented, left the classroom, and drove away.
¶58 Viewing these facts in the light most favorable to the prosecution, we cannot conclude that the evidence was insufficient to allow a reasonable juror to find that Rediger, on the premises of an educational institution, willfully impeded Holland in the lawful performance of her duty as a teacher through the use of intimidation. Accordingly, we reverse Rediger‘s conviction on this count and remand for a new trial. We express no opinion as to whether the prosecution must proceed on the count originally charged, or whether it may seek to amend the information at this point.
¶59 For these reasons, we conclude that Holland was not a public employee within the meaning of section
¶60 Accordingly, we affirm in part and reverse in part the judgment of the division below, and we remand this case for further proceedings consistent with this opinion.
Notes
1. Whether people providing public services on behalf of a public entity are public employees under section
2. Whether the jury verdict for interference with the staff, faculty, or students of an educational institution under section
3. Whether the court of appeals erred in applying the waiver doctrine as a complete bar to appellate review of the constructive amendment in this case, where defense counsel stated that he was generally “satisfied” with the jury instructions, but where there was no evidence that defense counsel was aware that the prosecutor erroneously tendered an uncharged offense in its proposed jury instructions.