People v. Sena , 2016 Colo. App. LEXIS 1544 ( 2016 )

COLORADO COURT OF APPEALS 2016COA161
Court of Appeals No. 15CA0652
Weld County District Court No. 13CR1668
Honorable Shannon D. Lyons, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Billy Jack Sena,
Defendant-Appellant.
JUDGMENT AFFIRMED
Division VI
Opinion by JUDGE RICHMAN
Bernard and Fox, JJ., concur
Announced November 3, 2016
Cynthia H. Coffman, Attorney General, Kevin E. McReynolds, Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee
Douglas K. Wilson, Colorado State Public Defender, Katherine Brien, Deputy
State Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 Defendant, Billy Jack Sena, appeals the judgment of
conviction entered upon a jury verdict finding him guilty of one
count of attempt to influence a public servant. We affirm the
conviction.
I. Background
¶2 According to the prosecution’s evidence, defendant was a
passenger in his cousin’s vehicle when Greeley Police Officer Bridge
stopped the vehicle for a traffic infraction. When asked to identify
himself by Officer Pfeiler, who had arrived to assist with the stop,
defendant provided the name of a relative (Robert Velasquez) and a
birth date that was not defendant’s. Finding no outstanding
warrants for the driver or for Robert Velasquez, the police allowed
defendant and his cousin to proceed with a warning.
¶3 Officer Pfeiler decided to further investigate the passenger
because dispatch had reported no record of a person with the given
name and date of birth. As he investigated, Officer Pfeiler viewed an
enlarged picture of defendant, who shares a last name with the
driver. Not long after defendant departed in the vehicle, Officer
Pfeiler showed defendant’s picture to Officer Bridge, and the officers
agreed with certainty that the passenger of the car had been
1
defendant, not “Robert Velasquez.” Officer Pfeiler then located an
active arrest warrant for defendant issued from an adjacent county.
¶4 The People charged defendant with one count of attempt to
influence a public servant, defined in section 18-8-306, C.R.S.
2016. Section 18-8-306 provides, in pertinent part, that “[a]ny
person who attempts to influence any public servant by means of
deceit . . . 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 . . . commits a class
4 felony.” (Emphasis added.) A jury found defendant guilty of the
charge, and the district court sentenced him to 6 months of
probation with 90 days in county jail and 100 hours of community
service.
II. Discussion
¶5 Defendant contends that (1) the prosecution’s evidence was
insufficient as a matter of law to support his conviction for attempt
to influence a public servant, and (2) the district court erred by
taking judicial notice of his outstanding warrant at trial and
improperly instructing the jury on judicial notice. We are not
persuaded.
2
A. Insufficient Evidence
¶6 Defendant asserts that there was insufficient evidence to show
that (1) Officer Pfeiler is a “public servant,” as contemplated in
section 18-8-306; and (2) he intended to alter Officer Pfeiler’s
actions, because there was no evidence that he knew there was a
warrant for his arrest.
1. Standard of Review
¶7 Evidence is sufficient to support a conviction if the direct and
circumstantial evidence, viewed as a whole and in the light most
favorable to the prosecution, could support a rational trier of fact’s
conclusion that the defendant is guilty of the offense beyond a
reasonable doubt. Clark v. People, 232 P.3d 1287, 1291-92 (Colo.
2010). We give the prosecution the benefit of every reasonable
inference which may fairly be drawn from the evidence, and we do
not consider vague, speculative, or imaginary doubt to be
reasonable doubt. Id. at 1292. We generally review the record de
novo to make this determination. Id. at 1291.
¶8 Because defendant concedes that he did not raise the first
argument at trial, some divisions of this court would reverse only
for plain error. See People v. Lacallo, 2014 COA 78, ¶¶ 12, 30-31;
3
see also People v. McCoy, 2015 COA 76M, ¶ 70 (Webb, J., specially
concurring). But we need not resolve that issue here, because we
conclude that the district court did not err.
2. Public Servant
¶9 On this issue, defendant makes two arguments: (1) a police
officer is not a “public servant” as considered in section 18-8-306;
and (2) the prosecution did not prove that Officer Pfeiler is a public
servant.
a. Applicable Law
¶ 10 We regard the argument that a police officer is not a “public
servant” as contemplated in section 18-8-306 as a question of law,
which we also review de novo. See Doubleday v. People, 2016 CO 3,
¶ 19. In construing statutory terms, our primary purpose “is to
ascertain and give effect to the intent of the General Assembly.” Id.
We do so by looking first to the plain language, giving words and
phrases their ordinary meanings. Id. We consider each statutory
term in the context of the statute, and construe it according to the
rules of grammar and common usage. People v. Diaz, 2015 CO 28,
¶ 12.
4
¶ 11 A “public servant,” as envisioned in section 18-8-306, is
defined as follows: “any officer or employee of government, whether
elected or appointed, and any person participating as an advisor,
consultant, process server, or otherwise in performing a
governmental function, but the term does not include witnesses.”
§ 18-1-901(3)(o), C.R.S. 2016.1
b. Analysis
¶ 12 The plain language of the statute reveals that a police officer,
as an employee of the government, is a public servant. The
definition provided is expansive; it encompasses any employee of
the government and even includes non-employees performing
government functions. And the definition incorporates language to
exclude witnesses, but no other specified class. Accordingly, we
cannot conclude that the General Assembly intended to silently
exclude police officers from the definition of “public servants.”
1 In order to arrive at the definition in section 18-1-901(3)(o), C.R.S.
2016, we start with section 18-8-301(4), C.R.S. 2016, which
provides that “‘[p]ublic servant’, as used in sections 18-8-302 to
18-8-308, includes persons who presently occupy the position of a
public servant as defined in section 18-8-101(3).” Section 18-8-
101(3), C.R.S. 2016, then provides that “‘[p]ublic servant has the
same meaning as described in section 18-1-901(3)(o),” where we
finally find the definition set forth above.
5
¶ 13 We are not persuaded otherwise by defendant’s elaborate
arguments that (1) the phrase “whether elected or appointed”
should be construed as words of limitation which would exclude
police officers; or (2) because in other statutes police officers are
referred to as “peace officers,” they cannot also be public servants.
Even assuming that the General Assembly intended the phrase
“whether elected or appointed” to be words of limitation, hiring for
any non-elected public position may be considered an appointment.
See Black’s Law Dictionary 116 (9th ed. 2009) (defining
appointment as “[t]he designation of a person, such as a nonelected
public official, for a job or duty . . .”). And section 18-8-113(1),
C.R.S. 2016, a statute defendant cites, includes the language “a
public servant other than a peace officer,” indicating that the
General Assembly generally considers police officers to be in the
category of public servants, but excludes them in that instance.
¶ 14 Moreover, divisions of this court have accepted without
question that police officers are public servants under the relevant
statute. See, e.g., People v. Van De Weghe, 2012 COA 204 (where
the defendant was convicted of attempt to influence a public
6
servant when he provided false information to a police officer during
a traffic stop).
¶ 15 We conclude that police officers are public servants as
contemplated in section 18-8-306, and thus discern no error on
this issue. And a rational trier of fact could conclude that Officer
Pfeiler is a public servant from his trial testimony that he is a police
officer with the Greeley Police Department. Accordingly, we
conclude that the prosecution presented sufficient evidence to prove
that Officer Pfeiler is a public servant.
3. Intent
¶ 16 Intent can rarely be proven other than through circumstantial
or indirect evidence. People v. Serra, 2015 COA 130, ¶ 83; see
People v. Dist. Court, 926 P.2d 567, 571 (Colo. 1996). For the
People to prove that defendant intended to alter Officer Pfeiler’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 his true identity. We note that
whether the public servant was actually influenced by the
defendant’s attempts is not an element of the crime. People v.
Schupper, 140 P.3d 293, 298 (Colo. App. 2006). We conclude that
7
the prosecution presented such evidence here through the following
testimony by the officers at trial:
 defendant provided a false name to an officer;
 the false name belonged to defendant’s relative;
 the false name provided “no record” on the officers’
computer;
 the officers let the driver and defendant drive away;
 the officers’ patrol car computer subsequently revealed
an outstanding warrant for defendant; and
 the officers agreed with absolute certainty that defendant
had been the passenger.
¶ 17 Viewing this evidence as a whole and in the light most
favorable to the prosecution, we conclude that a rational juror could
find that the prosecution presented sufficient indirect or
circumstantial evidence to support a conclusion beyond a
reasonable doubt that the defendant intended to deceive Officer
Pfeiler and anticipated a different result — that he would be
arrested on an outstanding warrant — had he given his true
identity. Hence, a rational juror could find that defendant intended
to alter Officer Pfeiler’s actions by means of deceit.
8
B. Judicial Notice
¶ 18 Defendant next contends that the district court erred by
taking judicial notice of the existence of an arrest warrant for
defendant at the time he provided false information to Officer
Pfeiler. We are not persuaded.
¶ 19 At the prosecution’s request, the district court took judicial
notice of the existence of an active Larimer County warrant on the
date defendant presented false information to Officer Pfeiler, as
verified by a routinely used statewide court database. Defendant
objected.
¶ 20 On appeal, defendant argues that taking judicial notice was
error because the warrant was not an adjudicative fact within the
scope of CRE 201. Specifically, we understand him to argue that
taking notice of the warrant was not permitted under CRE 201
because the warrant arose in another jurisdiction, the accuracy of
the database was subject to reasonable dispute, and judicial notice
of the warrant invaded the province of the jury.2
2 Defendant further contends that the district court plainly erred by
giving the model jury instruction for judicial notice. We do not
review this contention because any error was invited by defendant
when he requested and approved the instruction. See People v.
9
¶ 21 We disagree.
1. Standard of Review and Applicable Law
¶ 22 We review a district court’s decision to take judicial notice for
an abuse of discretion. Quintana v. City of Westminster, 56 P.3d
1193, 1199 (Colo. App. 2002). “A court abuses its discretion when
its decision is manifestly arbitrary, unreasonable, or unfair, or
based on an erroneous understanding or application of the law.”
People v. Orozco, 210 P.3d 472, 475 (Colo. App. 2009).
¶ 23 Generally, a district court has discretion to take judicial notice
of an adjudicative fact. Id. CRE 201(b) provides that the kind of
fact proper for judicial notice “must be one not subject to
reasonable dispute in that it is either (1) generally known within the
territorial jurisdiction of the trial court or (2) capable of accurate
and ready determination by resort to sources whose accuracy
cannot reasonably be questioned.” The occurrence of legal
proceedings or other court actions are proper facts for judicial
notice. See Doyle v. People, 2015 CO 10, ¶¶ 2, 11.
Zapata, 779 P.2d 1307, 1309 (Colo. 1989) (a party on appeal may
not complain of an error he has injected into the case and the
invited error doctrine applies to jury instructions).
10
2. Analysis
¶ 24 That defendant’s warrant arose in another jurisdiction is of no
consequence, because the existence of the warrant was capable of
accurate and ready determination by referring to the statewide
court database.
¶ 25 Defendant’s assertion that the district court may not take
judicial notice of the contents of the database because it may
contain inaccurate records is unpersuasive. “[T]he notion of an
indisputable fact rests less on the infallibility of a specific source
and more on the notion that the fact is commonly verifiable, such
that an error in any particular source can be easily demonstrated.”
Id. at ¶ 10. We note that here, until just before trial, defendant had
agreed to stipulate to the existence of the warrant for his arrest.
Defendant does not argue on appeal, and did not argue at trial, that
the database was inaccurate in this instance.
¶ 26 We disagree with defendant that the district court’s notice of
the warrant improperly invaded the province of the jury. Defendant
relies on civil cases and Doyle to support the proposition that the
court overstepped by taking judicial notice “of facts on the very
issue the parties are litigating.” Mun. Subdistrict, N. Colo. Water
11
Conservancy Dist. v. OXY USA, Inc., 990 P.2d 701, 711 (Colo. 1999)
(district court improperly noticed basis for expert’s testimony based
on factual findings from a previous case); see People in Interest of
C.A.B.L., 221 P.3d 433, 442 (Colo. App. 2009) (district court
improperly took judicial notice of the contents of a guardian ad
litem report); see also Doyle, ¶ 13 (district court erred by taking
notice of an inference that the defendant had not appeared at a
proceeding based on court records suggesting his absence).
¶ 27 These cases are inapposite, because each relies on the court
taking an additional step beyond notice of the existence of a record.
Here, the district court took notice only of the existence of the
warrant. And the existence of an arrest warrant is not an element
of the offense of attempt to influence a public servant. We conclude
that this is an adjudicative fact squarely within the kinds of facts
noticeable pursuant to CRE 201. See Doyle, ¶ 11 (court records
such as briefs, indictments, convictions, and pleas have been
recognized as adequate sources for judicially noticeable facts); see
also Slate v. Pub. Defender Serv. for the District of Columbia, 31 F.
Supp. 3d 277, 288 (D.D.C. 2014) (court may take judicial notice of
an arrest warrant because it is a matter of public record).
12
III. Conclusion
¶ 28 The judgment is affirmed.
JUDGE BERNARD and JUDGE FOX concur.
13