v. Rieger , 436 P.3d 610 ( 2019 )

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
January 24, 2019
2019COA14
No. 18CA1506, People v. Rieger — Criminal Law — Review of
Judgments — Appeals by the Prosecution; Crimes — Tampering
with Physical Evidence
In this prosecutorial appeal from an order of dismissal entered
after preliminary hearing, a division of the court of appeals holds
that an electronically stored photograph qualifies as “physical
evidence” for purposes of section 18-8-610, C.R.S. 2018, the
tampering with physical evidence statute. In resolving the appeal,
the division also determined that a duplicate of an electronically
stored photograph was “physical evidence” and that the evidence
presented at the preliminary hearing was sufficient to establish
probable cause to believe that the defendant committed the crime of
solicitation to commit tampering with physical evidence.
COLORADO COURT OF APPEALS 2019COA14
Court of Appeals No. 18CA1506
Mesa County District Court No. 18CR298
Honorable Brian J. Flynn, Judge
The People of the State of Colorado,
Plaintiff-Appellant,
v.
Justin Walter Rieger,
Defendant-Appellee.
ORDER REVERSED AND CASE
REMANDED WITH DIRECTIONS
Division II
Opinion by JUDGE DAILEY
Ashby and Vogt*, JJ., concur
Announced January 24, 2019
Daniel P. Rubinstein, District Attorney, George Alan Holley, II, Senior Deputy
District Attorney, Grand Junction, Colorado, for Plaintiff-Appellant
Megan A. Ring, Colorado State Public Defender, Jessica Sommer, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellee
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2018.
¶1 Pursuant to section 16-12-102(1), C.R.S. 2018, the People
appeal the district court’s order dismissing, after a preliminary
hearing, the case charging the defendant, Justin Walter Rieger, with
solicitation to commit tampering with physical evidence. We reverse
and remand with directions.
I. Background
¶2 Rieger had been charged in a separate case with numerous
offenses committed in connection with an alleged assault on his
girlfriend. While in jail, Rieger corresponded with the girlfriend
through Telmate, an electronic messaging system that allows
detainees to communicate with people outside the jail.
¶3 Through Telmate, the girlfriend forwarded to Rieger a picture
of bruises on her arms that he had allegedly caused during the
assault. Two days after she uploaded the picture on Telmate,
Rieger asked her to “take that [picture] off, because it . . . can
incriminate me.” The girlfriend removed the picture from the
Telmate account.
1
¶4 A District Attorney’s investigator who was reviewing Rieger’s
Telmate account had seen the picture1 and Rieger’s correspondence
with the girlfriend.
¶5 The prosecution charged Rieger in this separate case with
solicitation to commit tampering with physical evidence. After a
preliminary hearing, the district court dismissed the case because
the definition of physical evidence . . . doesn’t
apply to this electronic record; and so that —
that’s the basis for me finding that there is not
probable cause for that because I find it’s not
physical evidence under . . . [section] 18-8-
610.
II. Analysis
¶6 The People contend that the district court improperly
dismissed the case. We agree.
¶7 Because we review a trial court’s probable cause ruling at a
preliminary hearing for an abuse of discretion, People v. Hall, 999
P.2d 207, 221 (Colo. 2000), we will not overturn such a ruling
absent a showing that it is either manifestly arbitrary,
1 According to the investigator, the bruising shown in the picture
appeared worse than that depicted in the evidence gathered in the
assault case. The investigator explained, though, that this was
consistent with the nature of bruising “as bruising develops over
time.”
2
unreasonable, or unfair, People v. Castro, 854 P.2d 1262, 1265
(Colo. 1993), or based on an erroneous view of the law, People v.
Moore, 226 P.3d 1076, 1081 (Colo. App. 2009).
¶8 Here, the trial court dismissed the case based on its
interpretation of section 18-8-610, C.R.S. 2018. The court’s
interpretation of the statute presents a question of law that we
review de novo. People v. Johnson, 2015 CO 70, ¶ 9.
¶9 In interpreting a statute, our task is to ascertain and give
effect to the intent of the General Assembly. Dubois v. People, 211
P.3d 41, 43 (Colo. 2009). “To discern the legislative intent, we look
first to the language of the statute itself, reading words and phrases
in context and construing them according to rules of grammar and
common usage.” People v. Butler, 2017 COA 117, ¶ 24 (citation
omitted). “Words and phrases that have acquired a technical or
particular meaning, whether by legislative definition or otherwise,
shall be construed accordingly.” § 2-4-101, C.R.S. 2018.
¶ 10 When the statutory language is clear and unambiguous, “we
apply the words as written without resort to other rules of statutory
interpretation.” People v. Shores, 2016 COA 129, ¶ 16 (citing People
v. Van De Weghe, 2012 COA 204, ¶ 8). But “[w]hen the language of
3
a statute is susceptible of more than one reasonable understanding
and is therefore considered ambiguous,” People v. Jones, 2015 CO
20, ¶ 10, “a court must look beyond the language [of the statute]
and consider other factors, such as the statute’s legislative history
and the objective sought to be achieved by the legislation,” People v.
Lovato, 2014 COA 113, ¶ 23.
¶ 11 Pursuant to section 18-8-610(1)(a), “[a] person commits
tampering with physical evidence if, believing that an official
proceeding is pending or about to be instituted and acting without
legal right or authority, he . . . [d]estroys, mutilates, conceals,
removes, or alters physical evidence with intent to impair its verity
or availability in the pending or prospective official proceeding[.]”
(Emphasis added.) “‘Physical evidence’, as used in this section,
includes any article, object, document, record, or other thing of
physical substance[.]” § 18-8-610(2).2
¶ 12 The People contend that the trial court erred in interpreting
the definition of “physical evidence” to exclude electronic documents
2“Physical evidence” does not, however, “include a human body,
part of a human body, or human remains subject to a violation of
section 18-8-610.5.” § 18-8-610(2), C.R.S. 2018.
4
such as the photograph the girlfriend uploaded to the Telmate
system. They argue that under the “last antecedent rule,”3 the
phrase “of physical substance” modifies only the last noun (i.e.,
“other thing”) and not the previous ones (i.e., “any article, object,
document, record”). Rieger, on the other hand, argues that, even if
the “last antecedent rule” applies, an exception to the rule also
applies — an exception that would tie the phrase “of physical
substance” as much to the words “article,” “object,” “document,”
and “record,” as it is tied to the phrase “other thing.”4
¶ 13 We do not, however, apply either of the parties’ proffered rules
of statutory construction because it is otherwise clear to us that
electronically stored documents or information falls within the
3 Under the last antecedent rule — which was legislatively
repudiated in 1981 after the tampering statute had been enacted —
there is a “presumption that referential and qualifying words and
phrases refer solely to the last antecedent clause immediately
preceding them.” People v. O’Neal, 228 P.3d 211, 214 (Colo. App.
2009).
4 The “exception” to which Rieger refers is this: “When a referential
or qualifying clause follows several words or phrases and is
applicable as much to the first word or phrase as to the others in
the list, . . . the clause should be applied to all of the words or
phrases that preceded it.” Estate of David v. Snelson, 776 P.2d 813,
818 (Colo. 1989).
5
ambit of the phrase “physical evidence.” See, e.g., Holliday v.
Bestop, Inc., 23 P.3d 700, 706 n.5 (Colo. 2001) (“Because the
language of the statute is unambiguous on this point, we do not
resort to interpretive rules of statutory construction and thus do
not address the parties’ arguments regarding the effect of various
rules of statutory construction, such as the ‘last antecedent
rule’. . . .”).5
¶ 14 In this regard, we note that the definition of “physical
evidence” is phrased not in terms of “physical evidence means” but,
rather, in terms of “physical evidence includes.” “The word
‘includes’ is generally used as a term of extension or enlargement
when used in a statutory definition.” Freedom Newspapers, Inc. v.
5 We need not, then, independently determine the precise meaning
of the term “physical substance”; whether the phrase “any. . .
record” can be read independently of the phrase “physical
substance”; and, if so, whether an electronically stored photograph
qualifies as a “record” encompassed within the definition of
“physical evidence.” Cf. Henson v. State, 723 S.E.2d 456, 459 (Ga.
Ct. App. 2012) (“[T]he ordinary signification of ‘record’ is ‘[a]n
account of some fact or event preserved in writing or other
permanent form . . .’ or ‘any thing . . . serving to indicate or give
evidence of, or preserve the memory of, a fact or event.’” And given
that a picture certainly preserves or gives evidence of a fact or event
— in many instances as efficiently as a thousand words — Henson’s
claim that the term “electronic records” does not encompass
pictures or photographs lacks merit.”).
6
Tollefson, 961 P.2d 1150, 1154 (Colo. App. 1998). It “denotes that
the examples listed are not exhaustive or exclusive,” Preston v.
Dupont, 35 P.3d 433, 439 (Colo. 2001), but only illustrative, People
v. Patton, 2016 COA 187, ¶¶ 14-16; see Bryan A. Garner, Garner’s
Dictionary of Legal Usage 439 (3d ed. 2011) (“[I]ncluding . . . should
not be used to introduce an exhaustive list, for it implies that the
list is only partial[;] . . . ‘the use of the word including indicates that
the specified list . . . is illustrative, not exhaustive.’”).
¶ 15 The phrase “physical evidence” has an established meaning in
law, representing the form in which evidence is presented to a fact-
finder. As noted in one commentary:
There are generally two types of evidence: the
words or testimony of the witnesses, and
physical evidence. Most broadly viewed, the
second type of evidence is anything that
conveys a firsthand impression to [factfinders].
It includes weapons, writings, photographs,
and charts.
U.S. Dep’t of Army, Pamphlet No. 27-22, Military Criminal Law
Evidence, § 11-1 (July 15, 1987), 1987 WL 61783; see 23 C.J.S.
Criminal Procedure and Rights of the Accused § 1148 (“[P]hysical
evidence is evidence addressed directly to the senses of the court or
jury without the intervention of the testimony of witnesses, as
7
where various things are exhibited in open court, or an object which
relates to or explains the issues or forms a part of a transaction.”).
At least one state court has applied this meaning to the phrase
“physical evidence” in deciding an issue under a statute similar to
ours prohibiting tampering with physical evidence. See State v.
Peplow, 2001 MT 253, ¶ 22 (equating “physical evidence” with “a
‘thing presented to the senses’”).
¶ 16 Other jurisdictions recognize that photographs are a form of
“physical evidence.” See, e.g., Medina v. Williams, 565 F. App’x 644,
646 (9th Cir. 2014) (photographs of bruises and cuts inflicted in
assault); People v. Elizalde, 351 P.3d 1010, 1016 (Cal. 2015)
(“Examples of ‘real or physical evidence’ include fingerprints,
photographs, handwriting exemplars, blood samples . . . .”);
England v. State, 940 So. 2d 389, 395 (Fla. 2006) (autopsy
photographs); State v. Beynon, 484 N.W.2d 898, 907 (S.D. 1992)
(photographs of injuries inflicted in assault).
¶ 17 CRE 1001(2) defines “photographs” as “includ[ing] still
photographs, X-ray films, and motion pictures.” In State v. William
M., 692 S.E.2d 299, 304 (W. Va. 2010), the West Virginia Supreme
Court held that “digital images are ‘photographs’ under Rule
8
1001(2) of the West Virginia Rules of Evidence,” a rule identical to
Colorado’s. In reaching its conclusion, the court noted that there
was “no requirement under our rule that an image must be stored
on photographic film or paper to be considered a photograph.” Id.;
see 7 Daniel D. Blinka, Wisconsin Practice Series: Wisconsin
Evidence § 1001.3, Westlaw (4th ed. database updated Aug. 2018)
(“Nothing is excluded from the definition [of ‘photographs’ in
Wisconsin Statute section 910.01(2) (West 2018)]; it comfortably
reaches electronic images captured by Smartphones and other
digital technology.”).
¶ 18 Further, courts have upheld the admissibility of digital
photographs based on the same or similar type of foundation
required for admitting traditional photographs. See, e.g., Owens v.
State, 214 S.W.3d 849, 421 (Ark. 2005); People v. Goldsmith, 326
P.3d 239, 248-49 (Cal. 2014); State v. Marquardt, 2017 WI App 34,
¶ 22, 899 N.W.2d 737.
¶ 19 Because (1) we find persuasive the authorities treating, for
evidentiary purposes, digital images as “photographs”; and (2)
“photographs” fall within well-accepted notions of “physical
evidence,” we conclude that electronically stored, digital images like
9
the one deleted here qualify as “physical evidence” for purposes of
the tampering with physical evidence statute.
¶ 20 To reach any other conclusion would, in our view, lead to an
absurd result. The intent of the General Assembly in enacting the
tampering statute is clear: to punish attempts to subvert the
administration of justice. See People v. Atencio, 140 P.3d 73, 77
(Colo. App. 2005) (“[I]t is evident from the language of [section 18-8-
610] that the General Assembly intended to criminalize behavior
that interferes with an official proceeding . . . .”); cf. People v.
Yascavage, 101 P.3d 1090, 1092 (Colo. 2004) (The purpose of the
witness tampering statute “was to punish any attempt to induce
another to testify falsely or otherwise to subvert the administration
of justice.”).
¶ 21 In today’s society, vast amounts of documents, files,
photographs, and records are stored electronically. Allowing
individuals to conceal, remove, or alter digitally stored information
about a crime would run contrary to the intent of the statute to
protect the administration of justice.
¶ 22 Consequently, we conclude that the trial court erred in
dismissing the case on the ground that electronically stored images
10
do not qualify as “physical evidence.” That conclusion does not,
however, end our analysis.
¶ 23 “[O]n appeal a party may defend the judgment of the trial
court on any ground supported by the record, regardless of whether
that ground was relied upon or even contemplated by the trial
court.” People v. Quintana, 882 P.2d 1366, 1371 (Colo. 1994). In
this regard, Rieger contends that even if an electronically stored
photograph falls with the meaning of physical evidence, this court
should still affirm the district court’s order dismissing the case
because
 an electronic duplicate of an image uploaded to Telmate
does not constitute “physical evidence,” and
 “the removal of this image from that communications
system does not evince a specific intent to make the
image unavailable at trial.”
¶ 24 Rieger bases the first argument, factually, on the investigator’s
testimony that he believed that the original photograph was taken
by the girlfriend with her cell phone and that only “a copy” of the
picture was uploaded to Telmate. Rieger bases the legal component
of this argument not on the definition of “physical evidence,” but on
11
an interpretation of that term in light of the actus reus (i.e.,
“[d]estroys, mutilates, conceals, removes or alters physical
evidence,” § 18-8-610(1)(a)) and mens rea (i.e., to impair the “verity
or availability” of the item “in the pending or prospective official
proceeding,” id.) elements of the crime. Thus, he argues,
the definition of physical evidence is limited to
evidence, which, when destroyed, mutilated,
concealed, removed or altered would impair
that item’s verity or availability. Therefore,
this definition does not encompass an
electronic duplicate uploaded to a particular
platform. Because the uploaded file is a copy,
and not the original, any tampering with it
could not affect the verity or availability of the
original photograph – any changes to the
duplicate would simply not affect the
underlying data file, which is the actual
evidence in the case. Thus, this type of
evidence is not “physical evidence” within the
meaning of the tampering with physical
evidence statute.
¶ 25 The problem with this argument is its premise, i.e., that
without satisfying the other elements of the crime, there can be no
“physical evidence.” A proper analysis, though, produces this
result: without satisfying the other (actus reus and mens rea)
elements of the crime, there is no crime.
12
¶ 26 We perceive no reason why a duplicate of a photograph cannot
constitute “physical evidence” for purposes of the tampering
statute. Eliminating a copy of a photograph that could have been
used at trial impairs the availability of the photograph, even if other
copies exist.
¶ 27 The significant issue is the intent with which a person acts
with respect to “physical evidence,” copy or otherwise. As
recognized by the drafters of a provision in the Model Penal Code
similar to ours, the “limiting factor” of the offense
is the requirement of specific intent. The
statute punishes any kind of tampering with
any document or thing, but only if the
defendant acts ‘with purpose to impair its
verity or availability’ in an official
proceeding . . . . This designation of specific
purpose identifies the ultimate evil as
obstruction of justice rather than destruction
of property and restricts the scope of the
offense to persons who consciously intend to
accomplish the forbidden harm. . . . [The
statute] therefore applies only when the
conduct is undertaken with purpose to impair
verity or availability of a record in a
proceeding . . . .
Model Penal Code and Commentaries § 241.7 cmt. 3, at 180 (Am.
Law Inst. 1980).
13
¶ 28 We now turn to Rieger’s second argument, that is, whether the
desired removal of a duplicate image from the Telmate
communications system evinces a specific intent to make the image
unavailable at trial.
¶ 29 At the outset, we acknowledge that there are some
circumstances in which the removal of one of several identical items
may not tend to prove a specific intent to make evidence
unavailable for use in an official proceeding. Take, for instance, the
circumstances in Costanzo v. State, 152 So. 3d 737 (Fla. Dist. Ct.
App. 2014). In Costanzo, the defendant, a police officer, made a
video on his cell phone of statements from a suspect about a
criminal case where the defendants were two other police officers
and friends of the defendant. Id. at 738. He then showed the video
to his supervisor, texted it to one of the defendants, and used his
work email to send it to an attorney for the Police Benevolent
Association. Id. He then deleted the video from his cell phone. Id.
A jury convicted him of tampering with physical evidence.
¶ 30 On appeal, the Florida District Court of Appeal reversed the
defendant’s conviction, reasoning as follows:
14
[A] defendant’s equivocal conduct toward
evidence is insufficient to demonstrate the
intent necessary for a section 918.13
violation . . . .
....
Such equivocal conduct differs from that
conduct that completely destroys potential
evidence, such as swallowing an object.
....
In this case, after appellant recorded the video
on his cell phone, he showed it to his
supervisor, texted it to [his friend], and
e-mailed it to an attorney for the Police
Benevolent Association. As we know from
videos that have gone viral, texting or
e-mailing a video is the antithesis of trying to
destroy it. In fact, with the assistance of
technology, the video was recovered from two
separate locations. There was insufficient
evidence of appellant’s intent to violate the
tampering statute. In addition, there was
insufficient evidence that the video was
“destroy[ed]” within the meaning of the statute;
the statute does not criminalize deleting
evidence existing in the memory of a particular
electronic device, particularly where such
evidence resides elsewhere in the electronic
ether. The trial court’s denial of appellant’s
motion for judgment of acquittal was therefore
erroneous.
Id. at 738-39.6
6Notably, perhaps, the court did not decide the case based on
whether the video constituted “physical evidence.”
15
¶ 31 In Costanzo, the defendant created the video, distributed it to
others, and then deleted the video he had created on his cellphone.
Under these circumstances (i.e., without any further insight into
the defendant’s state of mind), it would be counterintuitive to find
that, in deleting the video from his phone, the defendant intended
to impair the discovery or use of the video, or that he “destroyed” it,
making it unavailable for trial.
¶ 32 The present case is readily distinguishable from Costanzo. In
this case, there was no evidence of a number of duplicates of which
Rieger was shown to be aware, much less shown to have distributed
to others. Although Rieger never said anything to the girlfriend
about destroying or concealing any “original” of the photo, he asked
that the photograph on Telmate be removed because it could
“incriminate [him].”
¶ 33 Most importantly, in contrast to Costanzo, here we are
reviewing the sufficiency of the evidence not in relation to a
conviction after trial but in relation to a probable cause
determination after preliminary hearing.
¶ 34 “[P]robable cause is a low standard.” People v. Fry, 92 P.3d
970, 976-77 (Colo. 2004). The prosecution is not required to
16
produce evidence establishing beyond a reasonable doubt that the
defendant committed the crime or even the likelihood that the
defendant committed the crime; instead, it need only present
evidence sufficient to induce a person of ordinary prudence and
caution to entertain a reasonable belief that the defendant
committed the crime. Hall, 999 P.2d at 221.
¶ 35 In determining whether the prosecution has met its burden at
a preliminary hearing, the trial court must view the evidence as a
whole and draw all reasonable inferences in the light most favorable
to the prosecution. People v. Keene, 226 P.3d 1140, 1144 (Colo.
App. 2009).
¶ 36 Rieger’s statement that he wanted the picture removed from
the Telmate account because it “incriminate[d]” him is some
evidence that he intended to make that picture unavailable for use
by the prosecution. That he did not ask the girlfriend further to
delete the original picture does not, in our view, undermine that
intent as a matter of law. Unlike in Costanzo, Rieger had no reason
to believe that the authorities knew or had reason to know of the
picture on Telmate or any other place; it could reasonably be
inferred from his statement that Rieger meant to have the picture
17
removed from the account before the authorities learned of its
existence — in which case they would have had no reason to
suspect that another such picture existed anywhere.
¶ 37 In our view, the evidence was sufficient to induce a person of
ordinary prudence and caution to entertain a reasonable belief that
Rieger intended to deprive the prosecution of the ability to use that
picture. Because probable cause supported the charge of
solicitation to commit tampering with physical evidence, the case
should not have been dismissed.
III. Disposition
¶ 38 The district court’s order of dismissal is reversed, and the
matter is remanded with directions to reinstate the case and for
further proceedings with respect thereto.
JUDGE ASHBY and JUDGE VOGT concur.
18