v. Tee , 446 P.3d 875 ( 2018 )

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.
SUMMARY
June 14, 2018
2018COA84
No. 15CA0714, People v. Tee — Criminal Procedure — Grand
Jury — Indictment; Juries — Predeliberation — Waiver; Crimes
— Attempt to Influence a Public Servant
A division of the court of appeals first rejects defendant’s
assertion that because the statewide grand jury indictment received
by the venue court did not include, for confidentiality reasons, a
copy of the foreperson’s signature, the venue court lacked
jurisdiction. Next, as to defense counsel’s waiver of a
predeliberation contention, the division distinguishes People v.
Rediger, 2018 CO 32, relying instead on Stackhouse v. People, 2015
CO 48, to find intentional relinquishment of a known right. Finally,
the division concludes that the evidence of attempt to influence a
public servant was insufficient where defendant only input false
data concerning an auto accident on a computer terminal in a
police department, without knowing or having any reason to know
that a department technician would screen the information before
forwarding the accident report to another database.
COLORADO COURT OF APPEALS 2018COA84
Court of Appeals No. 15CA0714
Arapahoe County District Court No. 13CR691
Honorable Marilyn Leonard Antrim, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Mike Tee,
Defendant-Appellant.
JUDGMENT AFFIRMED IN PART, VACATED IN PART,
AND CASE REMANDED WITH DIRECTIONS
Division III
Opinion by JUDGE WEBB
Richman and Fox, JJ., concur
Announced June 14, 2018
Cynthia H. Coffman, Attorney General, Kevin E. McReynolds, Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee
Douglas K. Wilson, Colorado State Public Defender, Dayna Vise, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 After hearing evidence involving identity theft and insurance
fraud, a jury convicted Mike Tee of multiple charges, including two
counts of attempting to influence a public servant. Specifically, he
contends that
 because the indictment received by the district court did not
contain the signature of the grand jury foreperson, it did not
confer jurisdiction and all charges must be dismissed;
 because two jurors engaged in predeliberation, he is entitled to
a new trial;
 because insufficient evidence supported the two convictions
for attempting to influence a public servant, these convictions
must be vacated; and
 the mittimus must be corrected to conform to the sentence the
trial court announced at the sentencing hearing, despite a
lengthier sentence that the court imposed later.
¶2 The Attorney General concedes, and we agree, that the
mittimus must be corrected. As to the other three contentions, we
conclude that the signature of the foreperson need not be provided
to the district court; defense counsel waived any error as to
predeliberation; and the evidence was sufficient to support one
1
count of attempting to influence a public servant, but insufficient as
to the other count. Therefore, we vacate the judgment as to one
count of attempting to influence a public servant (Count 24) and
remand to correct the mittimus.
I. The Grand Jury Indictment Conferred Jurisdiction on the
Arapahoe County District Court
¶3 Tee first contends “the indictment returned by the grand jury
was not signed by the foreman and, therefore, failed to invoke the
court’s jurisdiction because it did not comply with the substantial
requirements of [section] 16-5-201,” C.R.S. 2017. That section
provides: “Every indictment shall be signed by the foreman of the
grand jury returning it and by the prosecuting attorney, his or her
assistant, or his or her deputy.” Tee also relies on Crim. P. 7(a)(1):
“An indictment shall be a written statement presented in open court
by a grand jury to the district court which charges the commission
of any crime by an alleged offender.” He does not challenge the
indictment for failure to satisfy any of the requisites set out in Crim.
P. 7(a)(2).
2
¶4 Tee correctly points out that the appellate record initially
certified included pages one through thirty-five of the indictment,
which ended with the following:
The 2012-2013 Colorado Statewide Grand
Jury presents the Indictment contained within
and the same is hereby ORDERED FILED this
28 day of March, 2013.
Pursuant to § 13-73-107, C.R.S., the Court
designates Arapahoe County, Colorado as the
county of venue for the purposes of trial.
Arrest Warrants are Issued for:
Mike Tee . . . .
The signature of the foreperson was not included.
¶5 According to the Attorney General, this occurred because the
district court for the City and County of Denver, where the grand
jury sat, ordered that all information “that might identify Statewide
Grand Jurors shall be deemed confidential, not to be released to
anyone other than the prosecutors and/or investigators with the
Attorney General’s Office without written authorization from the
Court.” See § 13-73-103, C.R.S. 2017 (“The court . . . shall enter an
order to preserve the confidentiality of all information that might
identify state grand jurors when reasonably necessary to protect the
state grand jury process or the security of the state grand jurors.”).
3
¶6 Still, we ordered the Arapahoe County District Court to
supplement the record — under seal — with a complete indictment.
The court clerk responded with an affidavit attesting that the
Denver District Court had sent only these pages.1
¶7 Tee clarified at oral argument that the problem is not whether
the foreperson signed the indictment, but whether the allegedly
incomplete copy of the indictment filed in the Arapahoe County
District Court gave that court jurisdiction. We discern no
jurisdictional defect for two reasons.
1 Upon receipt of this affidavit, we issued a similar order to the
Denver District Court, which provided, also under seal, pages
showing the signature of the grand jury foreperson for each count.
See, e.g., People v. Bergen, 883 P.2d 532, 543 (Colo. App. 1994)
(“Our review of the sealed grand jury records and the affidavits
shows support for the trial court’s determination that [the grand
jurors rendered a determination as to probable cause based upon
the investigation]; therefore, we decline to disturb it on appeal.”);
see also People v. Dist. Court, 199 Colo. 398, 402, 610 P.2d 490,
493 (1980) (“After a careful review of the sealed record containing
the transcript of the grand jury colloquy, we have concluded that
ordering the disclosure of the colloquy to defense counsel was an
abuse of discretion. Although the confidential nature of the
colloquy forecloses a detailed explanation, the transcript contains
no statements by the district attorney that would constitute
potential grounds for establishing the absence of probable cause to
indict the defendant because of improper conduct of the district
attorney.”).
4
¶8 First, “a grand jury indictment constitutes official action
accusing an individual of a specific violation of the law, for which
the individual may be tried and subsequently convicted.” People v.
Thompson, 181 P.3d 1143, 1148 (Colo. 2008); see § 16-1-104(11),
C.R.S. 2017 (defining “indictment” as “a written statement,
presented by a grand jury to the district court, which charges the
commission of a crime by an alleged offender”). And under section
13-73-107(1), C.R.S. 2017, “[a]ny indictment by a state grand jury
shall be returned to the chief judge who is supervising the statewide
grand jury without any designation of venue.” See § 13-73-105,
C.R.S. 2017 (“Judicial supervision of the state grand jury shall be
maintained by the chief judge who issued the order impaneling
such grand jury, and all indictments . . . made by such grand jury
shall be returned to that judge.”). Thus, the requirement in Crim.
P. 7(a)(1) that the indictment be “presented in open court by a
grand jury to the district court which charges the commission of any
crime” (emphasis added) applied to the Denver District Court.
¶9 Second, Tee cites no authority, nor have we found any,
applying the requirements of Crim. P. 7(a)(1) to the district court
that is designated “as the county of venue for the purposes of trial”
5
after the statewide grand jury indictment has been returned. And
section 13-73-107(1), which provides that after an indictment is
returned, “the chief judge shall, by order, designate any county in
the state as the county of venue for the purpose of trial,” suggests
otherwise.
¶ 10 In sum, we conclude that the Arapahoe County District Court
had jurisdiction.
II. Defense Counsel Waived a New Trial Based on Possible
Predeliberation by Two Jurors
¶ 11 Tee next contends the trial court “failed to adequately inquire
into or address the fact the jurors were predeliberating.” He asserts
that predeliberation constitutes either structural error or a denial of
due process subject to constitutional harmless error review. Under
either standard, he continues, all of the convictions must be
reversed and the case remanded for a new trial.
¶ 12 The predeliberation concern arose when a victim advocate told
the prosecutor, who then informed the trial court, that she had
overheard two jurors discussing the case at lunch. The court took
testimony from the victim advocate in the presence of the
prosecutor and defense counsel. Next, the court questioned these
6
two jurors separately, also with both counsel present. Then the
court read the burden of proof instruction to the entire jury.
¶ 13 According to the Attorney General, we should not review this
contention because defense counsel waived it. Tee responds that
waiver is inapplicable because “[t]he error was brought to the
attention of the court by the prosecution and the trial court had the
opportunity to address the issue.” But this response deals with
preservation, not waiver. See, e.g., Berra v. Springer & Steinberg,
P.C., 251 P.3d 567, 570 (Colo. App. 2010) (“[T]o preserve the issue
for appeal all that was needed was that the issue be brought to the
attention of the trial court and that the court be given an
opportunity to rule on it.”); see also People v. Kadell, 2017 COA
124, ¶ 43 n.1 (J. Jones, J., concurring in part and dissenting in
part) (“Simply put, because he didn’t draw the court’s attention to
the issue, it’s not preserved.”). And the trial court had no reason to
declare a mistrial after defense counsel expressly renounced that
remedy.
A. Law
¶ 14 Three familiar principles guide waiver analysis in criminal
cases.
7
 A “‘waived’ claim of error presents nothing for an appellate
court to review.” People v. Bryant, 2013 COA 28, ¶ 13 n.2
(quoting People v. Rodriguez, 209 P.3d 1151, 1160 (Colo. App.
2008)). In other words, waiver “specifically removes claims
from the trial court’s consideration.” Id. (citing Rodriguez, 209
P.3d at 1160).
 Still, waiver requires “that the defendant intentionally
relinquished a known right or privilege.” People v. Smith, 2018
CO 33, ¶ 17; see People v. Kessler, 2018 COA 60, ¶ 37
(Because “[d]efense counsel explicitly agreed that the specific
evidence at issue was admissible . . . , Kessler, through his
counsel, intentionally waived the particular point raised on
appeal.”).
 And despite this high bar, “even fundamental rights can be
waived, regardless of whether the deprivation thereof would
otherwise constitute structural error.” Stackhouse v. People,
2015 CO 48, ¶ 8 (courtroom closure).
¶ 15 The Supreme Court has identified factors limiting waiver.
“Whether a particular right is waivable; whether the defendant must
participate personally in the waiver; whether certain procedures are
8
required for waiver; and whether the defendant’s choice must be
particularly informed or voluntary, all depend on the right at stake.”
United States v. Olano, 507 U.S. 725, 733 (1993).
¶ 16 As to these factors, Tee cites no authority, nor are we aware of
any in Colorado or from the Supreme Court, holding that juror
conduct which could constitute predeliberation is unwaivable;
identifying any unique procedure that must be followed to waive
predeliberation; or requiring a defendant’s informed and voluntary
decision to waive predeliberation. Nor does Tee’s supplemental brief
argue any of these factors.
¶ 17 Absent such authority, People v. Hambrick, 947 N.Y.S.2d 139,
141 (N.Y. App. Div. 2012), is informative. There, defense counsel
successfully moved for a mistrial because “several members of the
jury had impermissibly discussed the specifics of the case and had
potentially been biased by the predeliberation discussions.”
Id. On appeal from conviction at retrial, the defendant raised
double jeopardy. In holding the claim to be “without merit” because
defense counsel had sought the mistrial, the court explained that
“the defendant’s personal consent to a mistrial was not necessary,
9
and his counsel’s decision to move for a mistrial was binding on the
defendant.” Id.2
¶ 18 Tee should be equally bound by his counsel’s decision not to
move for a mistrial. See People v. Greer, 197 N.E.2d 22, 24 (Ill.
1964) (“The decision to abandon the motion for a mistrial and go
ahead with the trial with the jurors that had already been chosen,
with additional jurors to make a full panel, was voluntarily made by
the defendant’s own attorney. The defendant is not now in a
position to allege a failure on the part of the court to declare a
mistrial.”).
2 The federal circuits have adopted this view. See, e.g., United
States v. Chapman, 593 F.3d 365, 369 (4th Cir. 2010) (“[D]ecisions
regarding a mistrial are tactical decisions entrusted to the sound
judgment of counsel, not the client.”); United States v. Burke, 257
F.3d 1321, 1324 (11th Cir. 2001) (The decision not to request a
mistrial is a “tactical decision entrusted to defense counsel, binding
the defendant even when the defendant expressed a contrary wish
to his lawyer.”); United States v. Washington, 198 F.3d 721, 723-24
(8th Cir. 1999) (requesting a mistrial is a non-fundamental strategic
decision); Watkins v. Kassulke, 90 F.3d 138, 143 (6th Cir. 1996)
(Where “defense counsel consents as a matter of trial strategy to a
mistrial, that consent binds the defendant . . . regardless of whether
the defendant participates in the decision.”); Galowski v. Murphy,
891 F.2d 629, 639 (7th Cir. 1989) (“The decision whether to move
for a mistrial or instead to proceed to judgment with the expectation
that the client will be acquitted is one of trial strategy.”).
10
B. Analysis
¶ 19 The Attorney General argues that waiver applies because
“[d]efense counsel did more than acquiesce to the trial court’s
inquiries and resolution of the alleged predeliberation issue, he
affirmatively approved the trial court’s line of questioning and
actively participated in further instructing the jury to address his
concerns.” According to the Attorney General, two lines of Colorado
authority support this conclusion.
¶ 20 First, the Attorney General asserts that when defense counsel
is an “active participant” with the trial court in matters involving
the jury, such action “amounts to a waiver.” Valley v. People, 165
Colo. 555, 561, 441 P.2d 14, 16 (1968); see also People v. Tillery,
231 P.3d 36, 44 (Colo. App. 2009) (holding that Tillery’s argument
that the instruction was prejudicial because it referred to “the
incident” was waived by his active participation in its wording), aff’d
sub nom. People v. Simon, 266 P.3d 1099 (Colo. 2011).3
3 Similar language has been employed when finding waiver in other
contexts. See, e.g., People v. Mascarenas, 666 P.2d 101, 106 (Colo.
1983) (“[T]he defendant effectively waived his rights to final
disposition within the ninety-day statutory limitation period [under
the Uniform Mandatory Disposition of Detainers Act] by his active
participation in the trial setting delays and in his agreement to the
11
¶ 21 Second, the Attorney General relies on People v. Rediger, 2015
COA 26, ¶ 59 (Rediger I), aff’d in part and rev’d in part, 2018 CO 32
(Rediger II). There, defense counsel told the trial court that he had
read the instructions and was “satisfied.” Rediger I, ¶ 47. On this
basis, the division concluded that instructional error had been
waived.
¶ 22 But the supreme court reversed in part, holding that counsel’s
colloquy with the court did not show either actual knowledge or
intentional relinquishment of the defendant’s right to have the jury
correctly instructed on the elements of the offense in the
indictment. Rediger II, ¶ 45. Because the supreme court’s decision
was announced after briefing had closed in this case, we requested
supplemental briefs on waiver. Having reviewed that briefing, we
draw two conclusions. First, Rediger II does not categorically
preclude finding a waiver based on defense counsel’s active
participation in trial court action that appellate counsel challenges
on appeal, although it may sometimes require a closer look at
appropriate dates.”); see also People v. Arledge, 938 P.2d 160, 166
(Colo. 1997) (“[A]ctive participation by the defendant in such delay
constitutes waiver” of the right to speedy trial.).
12
exactly what counsel did. Second, on the facts presented,
Stackhouse is more illuminating than is Rediger II.
¶ 23 Beginning with active participation, in Rediger II the trial court
asked defense counsel a single question; counsel answered with a
single sentence. By contrast, the record before us shows that the
trial court and defense counsel were involved in an ongoing,
interactive exchange. Thus, the record supports applying cases
such as Valley, as the Attorney General asserts.
¶ 24 Even so, after Rediger II, is the waiver analysis now more
complex? True, the supreme court said nothing about this line of
authority, probably because the record did not show active
participation by defense counsel in the flawed jury instruction,
which appeared to have been prepared by the prosecution. Rediger
II, ¶ 8. Still, the Rediger II court’s emphasis on intentional
relinquishment of a known right requires further scrutiny. In other
words, after Rediger II, would trial counsel’s active participation
always prevent appellate counsel from identifying an error and
arguing that it had somehow escaped trial counsel’s attention?
¶ 25 Start with a known right. After all, only a right that is known
could be intentionally relinquished.
13
¶ 26 The Rediger II court did not define “known.” Defense counsel
acknowledged having read the instructions. So, what more than
knowledge presumed from the circumstances must be present
before a right is known? Comparing waiver to invited error suggests
one answer.
¶ 27 Like waiver, invited error bars relief on direct appeal. See
People v. Novotny, 2014 CO 18, ¶ 47 (noting “the specter of invited
error, which precludes appellate review”). However, “although
invited error in most cases will result from defense counsel’s
inadvertence or negligence, it is the defendant who must bear the
stigma of a conviction and the burden of prison time; accordingly,
application of the plain error doctrine, rather than the invited error
doctrine,” is appropriate. People v. Stewart, 55 P.3d 107, 119 (Colo.
2002). See also People v. Gross, 2012 CO 60M, ¶ 2 (“The attorney
incompetence exception does not apply to deliberate, strategic acts
of defense counsel but rather to inadvertent errors or oversights.”).
As the division explained in People v. Perez-Rodriguez, 2017 COA
77, ¶ 27, “[t]o determine whether the statement ‘no objection’ or
even silence should be characterized as either deliberate or
14
inadvertent, it is necessary to consider the objection or silence in
the context of its circumstances.”
¶ 28 Although Rediger II did not cite Stackhouse, looking at
Stackhouse through the prism of inadvertence offers a path forward.
There, the trial court closed the courtroom during a portion of voir
dire. Of course, defense counsel was present. Counsel failed to
object and voir dire continued. Still, the court found a waiver.
Stackhouse, ¶ 17.
¶ 29 A principled line between these cases would be that in Rediger
II, merely reading the instructions does not compel the conclusion
that counsel recognized prejudice to the defendant’s right to be tried
on the statutory elements under which he had been charged
because the elements on the instructions and those on the
information came from different subsections of the same statute.
The explanation could have been inadvertence, as the difference in
elements was not striking. Contrasting Stackhouse, counsel’s mere
presence when the trial court directed that the courtroom be closed
permits no reasoned doubt that counsel recognized the defendant’s
public trial right was being impaired. See Webster’s Third New
15
International Dictionary 1252 (2002) (defining “know” as “to
recognize the quality of: see clearly the character of”).
¶ 30 After drawing this line here, the record compels the conclusion
that because defense counsel recognized the predeliberation
concern, this case falls on the Stackhouse side of that line. The
trial court asked the victim advocate, “Do you think [the two jurors]
were discussing the ultimate outcome of the case?” After the
advocate answered, defense counsel asked her, “[O]ne thing that I
would be concerned about . . . is, did you think from what you
heard from the jurors that there was a decision on their part that
they had heard enough?” The advocate answered, “I really don’t. I
honestly and truly don’t.” Then defense counsel said, “Nothing
else.”
¶ 31 In Stackhouse, ¶ 5, our supreme court affirmed “the court of
appeals’ holding that Stackhouse waived his right to public trial
during voir dire by not objecting to the trial court’s known closure.”
(Emphasis added.) Likewise in this case, everyone involved
recognized the specter of predeliberation. And just as Stackhouse,
id. at ¶ 16, presumed counsel’s knowledge of the proper procedure
to address a courtroom closure, we presume counsel’s awareness
16
that juror predeliberation would raise a constitutional concern.
People v. Flockhart, 2013 CO 42, ¶ 19 (An “erroneous
pre-deliberation instruction may prejudice a defendant’s
constitutional right to a fair trial.”).
¶ 32 Then consider intentional relinquishment.
¶ 33 After the trial court had questioned the first of the two jurors,
defense counsel told the court: “I didn’t hear anything at this point
that would make me want to move for a mistrial based on the fact
that the jurors looked engaged in a deliberate guilt or not guilt
process to me.” Thus, counsel also recognized the nexus between
the disease — “[pre]deliberate guilt or not guilt” — and the possible
cure — “a mistrial.”
¶ 34 For the second juror, defense counsel asked the court “if we
have questions of this juror, can we approach and tell you that?”
The court said yes. And after the court questioned the second
juror, counsel told the court “for the record . . . I would have said or
asked questions very much along the same lines . . . .” Tee does not
assert, nor does our review of the record disclose, anything in the
second juror’s answers that should have changed counsel’s earlier
mistrial calculus. To the contrary, the second juror assured the
17
trial court that she had not discussed Tee’s guilt, that she
understood the relative burdens for the prosecution and the
defense, and that she had not reached “a final conclusion in this
matter.” Thus, even more so than in Stackhouse, ¶ 16, allowing Tee
to “seek invalidation of an adverse verdict” on which these two
jurors deliberated “would encourage gamesmanship.”
¶ 35 Finally, counsel asked the court to read the jury instruction on
burden of proof. The court responded that it “would rather read it
to the whole jury.” Counsel clarified “[t]hat’s what I meant.” After
the jury had been reconvened, the court did so. Counsel sought no
further relief.
¶ 36 The totality of defense counsel’s statements stand in marked
contrast to our supreme court’s observation in Rediger II, ¶ 42, that
“[t]he record before us reveals no evidence, either express or
implied, that Rediger[’s counsel] 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,”
nor that “Rediger knew of the discrepancy between the People’s
tendered jury instructions and the charging document,” id. at ¶ 43.
18
¶ 37 Opposite to what occurred in Rediger II, here the dialogue
between defense counsel and the trial court over this issue went far
beyond a “rote statement that [counsel] is not objecting . . . .”
United States v. Zubia-Torres, 550 F.3d 1202, 1207 (10th Cir. 2008)
(“The record is simply devoid of any evidence that defense counsel
knew of the argument or considered making it.”), cited with
approval in Rediger II, ¶ 45; see also United States v. Perez, 116
F.3d 840, 845-46 (9th Cir. 1997) (perceiving no waiver when the
record revealed “that neither defendants, the government, nor the
court was aware” of the issue raised on appeal), cited with approval
in Rediger II, ¶ 42.
¶ 38 Despite all this, Tee’s supplemental brief asserts that “[t]here
would be no reason, had counsel been aware of the error, not to ask
for a mistrial or to ask the court to address the fact the jurors were
predeliberating.” This assertion misses the mark in two ways.
¶ 39 First, it assumes that inquiry into counsel’s strategic purpose
plays any role in evaluating an affirmative waiver. But Tee cites no
authority, nor are we aware of any in Colorado, tempering the effect
of a specific, affirmative waiver based on possible lack of a strategic
purpose. As the division explained in Perez-Rodriguez, ¶ 25,
19
“[i]nvited error is sometimes referred to as a strategic error. But
this does not mean that the ‘strategy’ must be competent or well
planned. It simply means that the action that results in invited
error must be deliberate rather than inadvertent.”
¶ 40 True, in Stackhouse, ¶ 15, our supreme court observed, “there
are sound strategic reasons to waive the right to a public trial, as is
particularly apparent in the context of Stackhouse’s jury selection
for his trial on charges of sexual assault on a minor.” But
Stackhouse involved an implied waiver based on counsel’s silence;
Tee’s counsel expressly renounced a mistrial.
¶ 41 Second and more importantly, this assertion ignores the
possibility that counsel’s strategic purpose was to preserve his
credibility by choosing to disclaim an issue that was a sure loser.
See People v. McCoy, 2015 COA 76M, ¶ 99 (Webb, J., specially
concurring) (“[C]ounsel may have decided that an unsupported
statutory sufficiency argument would probably be unsuccessful and
raising it would undercut counsel’s credibility.”) (cert. granted in
part Oct. 3, 2016). Because the trial court developed the issue, the
20
court would have been entitled to expect a candid response.4
“Forfeiture takes place when counsel or a defendant negligently
bypasses a valid argument.” United States v. Anderson, 604 F.3d
997, 1001 (7th Cir. 2010) (emphasis added) (cited with approval in
Perez-Rodriguez, ¶ 27).
¶ 42 In sum, and notwithstanding the “presumption against
waiver,” Rediger II, ¶ 46 (quoting People v. Curtis, 681 P.2d 504, 514
(Colo. 1984)), defense counsel’s affirmative statements constitute a
waiver. So, as to Tee’s contention that predeliberation constituted
structural error or a due process violation entitling him to a new
trial, we have nothing to review. See United States v. Montoya, 782
F.2d 1554, 1556 (11th Cir. 1986) (stating that, absent exceptional
circumstances, defendant’s withdrawal of motion for mistrial left
“nothing for this court to review”).
III. The Evidence Was Insufficient as to One Count of Attempting to
Influence a Public Servant
¶ 43 Tee was convicted of two counts of attempting to influence a
public servant based on evidence that he made allegedly false
reports of car accidents. As to the first report, he provided
4Of course, whether counsel had such a purpose could be explored
under Crim. P. 35(c) as an indication of ineffectiveness.
21
information in person to a police officer who created a report based
on what Tee had told him; for the other report, he filled in an
accident report form on a computer terminal at a kiosk in the police
department. We conclude that the evidence was sufficient to
support the conviction for attempting to influence a public servant
as to the police officer, but not the conviction based on the form
filled in at the kiosk.
A. Standard of Review and Law
¶ 44 A challenge to the sufficiency of the evidence requires an
appellate court “to determine whether the relevant evidence, both
direct and circumstantial, when viewed as a whole and in the light
most favorable to the prosecution, is substantial and sufficient to
support a conclusion by a reasonable person that the defendant is
guilty of the crime charged beyond a reasonable doubt.” People v.
Moore, 226 P.3d 1076, 1088 (Colo. App. 2009). The prosecution
must be given the benefit of every reasonable inference that might
fairly be drawn from the evidence. People v. Carrasco, 85 P.3d 580,
582-83 (Colo. App. 2003). A conviction will not be set aside merely
because the jury could have reached a different conclusion based
on the evidence. People v. Fuller, 791 P.2d 702, 706 (Colo. 1990).
22
However, if the appellate court concludes that evidence was
insufficient as to a count, then the judgment of conviction must be
reversed and that count cannot be retried. See People v. Lybarger,
700 P.2d 910, 916 (Colo. 1985) (“[I]f the evidence is insufficient to
support the conviction, the retrial of the defendant on the same
charge would constitute a violation of the constitutional guarantee
against double jeopardy.”).
¶ 45 Under section 18-8-306, C.R.S. 2017,
[a]ny person who attempts to influence any
public servant by means of deceit or by threat
of violence or economic reprisal against any
person or property, with the intent thereby to
alter or affect the public servant’s decision, vote,
opinion, or action concerning any matter which
is to be considered or performed by him or the
agency or body of which he is a member,
commits a class 4 felony.
(Emphasis added.) In supplemental briefs on this statute, the
parties agreed that it is a specific intent crime. So do we.
¶ 46 Section 18-8-306 is “aimed at attempts to influence public
servants in their official capacities to improperly alter or affect the
performance of their official duties.” People v. Beck, 187 P.3d 1125,
1128 (Colo. App. 2008), overruled on other grounds by People v.
Molina, 2017 CO 7. It “encompasses any employee of the
23
government and even includes non-employees performing
government functions.” People v. Sena, 2016 COA 161, ¶ 12.
Section 18-8-306 “requires the prosecution to prove that the
defendant acted with the specific intent to influence a public
servant[].” People v. Janousek, 871 P.2d 1189, 1196 (Colo. 1994).
But “whether the public servant was actually influenced by the
defendant’s attempts is not an element of the crime.” Sena, ¶ 16.
B. Analysis
1. Police Officer
¶ 47 Tee contacted the Aurora Police Department, claiming that his
car had been struck in a hit-and-run accident. The responding
officer testified that he met with Tee. Then, based on the
information Tee had provided, the officer prepared and filed an
accident report. That report was later offered into evidence as part
of Farmers Insurance Company’s file on Tee’s insurance claim.
¶ 48 Tee argues that the evidence was insufficient to show he
attempted to influence the police officer because “[t]he officer
testified he does not do anything or make any decisions.” But the
record shows that Tee intended “to alter or affect the public
servant’s . . . action concerning any matter which is to be
24
considered or performed by him.” § 18-8-306. Specifically, the
responding officer testified that writing police reports is an official
function that he performs. Then he described his actions based on
Tee having reported the accident to him:
Q: So based on what he told you, you prepared
your report?
A: I did.
Q: Did you file this report?
A: I did.
See, e.g., People v. Van De Weghe, 2012 COA 204 (holding that the
defendant attempted to influence a public servant when he provided
false information to a police officer during a traffic stop); see also
Sena, ¶ 16 (“For the People to prove that defendant intended to alter
[the officer’s] actions, the prosecution must only provide sufficient
evidence for a rational trier of fact to conclude that defendant
anticipated a different result if he had given” true information.).
¶ 49 Viewing this evidence in a light favorable to the prosecution,
as we must, it supports the conviction for attempting to influence a
public servant beyond a reasonable doubt.
25
2. Kiosk Report
¶ 50 Tee argues that the evidence does not show his act “of filing an
online accident report at . . . [the] kiosk was done with the specific
intent to alter or affect a public servant’s decision,” as required by
section 18-8-306. We agree.
¶ 51 The prosecution called a front desk technician at the police
department to testify about the accident report that Tee had filled
in. She explained that for such an online accident report, which
includes both forms filled in on a home computer and those
completed on a terminal at a kiosk:
 “The citizen would come in, we would direct them to the kiosk
that we have in the lobby to fill out an accident report. And if
they had any questions, then we would go out and assist them
in filling out the report.”
 When the citizen was done filling out the report, he or she
“would come back up to the front desk and they would get
their case number, and then that would be all that they
needed to do.”
She also testified about performing her duties:
26
 “Once the citizen enters the report, we as lead technicians
later — we go in and review the report to make sure that the
location is in the city ordinance . . . and that some of the
information is filled out.”
 Citizens “can come up to the front desk window if they have
some kind of difficulty working on the computer.”
 “Usually we’ll go into the system if [the citizen] ask[s] for [the
report] for their insurance. We’ll print it out for them.”
She explained that when using this process,
[m]ost people think that when they come in to
do an accident report they’re going to talk to
me to do the accident report, not to be referred
to a kiosk. So that’s — we give people the
option. They can do either or. Or they can go
home and they can do it on their own
computer if they’re more comfortable with that.
Finally, she added that after the report is entered, “[t]he information
gets forwarded to another computer system. So it’s kind of like the
online reporting system is its own program itself. And once it’s
reviewed, then there’s a bridge that goes to another system.”
¶ 52 But she did not recall anything about Tee — such as whether
he “attempted to talk” to her or gave her “information about . . . the
alleged accident.” Nor did she testify that he had caused the
27
system to print out a report. In anticipation of testifying, she had
printed out the accident report that the prosecution introduced into
evidence from the police department’s online reporting system.
¶ 53 According to the Attorney General, this testimony sufficed to
prove that Tee “intended his representations about a supposed
accident at the . . . city kiosk to influence the public servant on site
. . . to provide him with an official accident report.” True, the
technician testified that she would have “done something different if
[she] knew the person wasn’t giving accurate information in that
report.” But this testimony fails to show that Tee had any
interaction with the technician, much less that he knew the
technician needed to approve the report, after he filled in the form
using the terminal at the kiosk. Simply put, unless he knew of the
technician’s involvement, he could not have intended to influence
her actions. See People v. Prante, 177 Colo. 243, 247, 493 P.2d
1083, 1084 (1972) (stating that assault on a police officer requires
proof of intent to cause bodily injury and knowledge that the victim
is an officer).
¶ 54 Colorado cases addressing sufficiency of the evidence under
section 18-8-306 generally show a link between the defendants and
28
the public servants whom they intended to influence. See, e.g.,
Beck, 187 P.3d at 1127 (the defendant provided false identifying
information to a police officer); see also People v. Taylor, 159 P.3d
730, 734 (Colo. App. 2006) (“[The] defendant caused a false written
instrument to be delivered to a public servant with the intent of
altering the public servant’s decision relating to the termination of
defendant’s liberty interest.”), abrogated on other grounds by People
v. Fortson, 2018 COA 46; People v. Schupper, 140 P.3d 293, 298-99
(Colo. App. 2006) (The defendant “used ‘deceit’ in the form of false
representations on his application in order to influence a public
servant with the intent to alter or affect his or her decision to
appoint counsel.”).
¶ 55 Still, in People v. Montante, 2015 COA 40, ¶ 2, on which the
Attorney General primarily relies, that link was less clear. There,
the defendant, a physician, was convicted of attempting to influence
a public servant. The evidence showed that he had written false
information on a physician certification form, which he then gave to
an undercover officer masquerading as a patient who supposedly
needed the certification to obtain a medical marijuana identification
29
card from the Colorado Department of Public Health and
Environment.
¶ 56 The division explained that the physician certification “is part
of the application that an applicant must submit to the Colorado
Department of Public Health and Environment.” Id. And these
alleged false statements “constituted an attempt to influence, by
means of deceit, a public official at the Department, with the intent
thereby to affect the decision to issue [the patient] a medical
marijuana identification card.” Id. at ¶ 5.
¶ 57 Although the division did not address sufficiency, it analyzed
whether section 18-8-306 provided sufficient notice to the
physician. It concluded that the defendant “was on fair notice that
the making of false representations with the expectation that the
Physician Certification would be submitted to the Department
would constitute the offense of attempt to influence a public
servant.” Id. at ¶ 46.
¶ 58 This conclusion survives scrutiny because article XVIII,
section 14(3)(c) of the Colorado Constitution, provides:
Within thirty days of receiving the information
referred to in subparagraphs (3)(b)(I)-(IV), the
state health agency shall verify medical
30
information contained in the patient’s written
documentation. The agency shall notify the
applicant that his or her application for a
registry identification card has been denied if
the agency’s review of such documentation
discloses that: the information required
pursuant to paragraph (3)(b) of this section
has not been provided or has been falsified;
the documentation fails to state that the
patient has a debilitating medical condition
specified in this section or by state health
agency rule; or the physician does not have a
license to practice medicine issued by the state
of Colorado. Otherwise, not more than five
days after verifying such information, the state
health agency shall issue one serially
numbered registry identification card to the
patient . . . .
(Emphasis added.) Thus, a fair inference could be made that the
physician knew his false statements written on the certification
would influence a public servant’s decision to issue a medical
marijuana identification card. See Sena, ¶ 16 (“Intent can rarely be
proven other than through circumstantial or indirect evidence.”);
People v. Hayward, 55 P.3d 803, 806 (Colo. App. 2002) (“[E]very
person is generally presumed to know the law . . . .”).
¶ 59 By contrast, in the case before us, the prosecution did not
present any evidence showing that Tee knew the technician — or
anyone else, for that matter — would screen the information that he
31
input at the kiosk and then approve the report. Nor does the
Attorney General direct us to any statute describing human
involvement in this process. And unlike the hard copy physician
certification and registry card at issue in Montante, filling in a form
on a computer terminal suggests an entirely automated process.
Cf. People v. Rice, 198 P.3d 1241, 1244 (Colo. App. 2008) (“When
the computer system determines a claimant is eligible for
unemployment benefits, a computer prints a check that is
automatically sent to the claimant. Typically, an eligible claimant
completes a claim and receives a check without interacting with a
person.”).
¶ 60 At most, the record shows that Tee filled in false information
on a report form using the terminal at the police department kiosk.
Mere false reporting, however, while prohibited by section
18-8-111(1)(d), C.R.S. 2017, “is not a specific instance of attempt to
influence a public servant.” People v. Blue, 253 P.3d 1273, 1278
(Colo. App. 2011). Indeed, “[t]he attempted influence offense can
occur without any false reporting at all.” Id.
¶ 61 In the end — even given the high standard for sufficiency of
the evidence claims — we cannot say that the evidence was
32
sufficient to prove beyond a reasonable doubt Tee’s second
conviction for attempt to influence a public servant.
IV. The Mittimus Must Be Corrected
¶ 62 The Attorney General concedes, and we agree, that the trial
court violated Tee’s double jeopardy rights when it orally
announced sentences totaling twelve years, but then the mittimus
showed a total sentence of eighteen years. As Tee correctly points
out, some of his concurrent sentences were improperly changed to
consecutive sentences; and the mittimus listed the first sentence as
four years, rather than the three-year term announced by the trial
court. See People v. Sandoval, 974 P.2d 1012, 1015 (Colo. App.
1998) (“Although a court may correct an illegal sentence without
implicating double jeopardy concerns, it may not increase a lawful
sentence after the defendant has begun serving it.”) (citation
omitted).
¶ 63 Everyone also agrees that the mittimus incorrectly shows a
conviction on Count 5, which the trial court dismissed on Tee’s
motion for judgment of acquittal.
¶ 64 Thus, we remand for the trial court to correct the mittimus to
reflect the sentence announced, to remove the reference to
33
conviction on Count 5, and to vacate the sentence imposed on
Count 24.
V. Conclusion
¶ 65 The judgment is vacated as to Count 24 and otherwise
affirmed. The case is remanded with directions to correct the
mittimus.
JUDGE RICHMAN and JUDGE FOX concur.
34