v. Knox , 2019 COA 152 ( 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
October 10, 2019
2019COA152
No. 16CA0048, People v. Knox — Crimes — Attempt to
Influence a Public Servant — Criminal Extortion
A division of the court of appeals considers whether police
officers are “public servants” under section 18-8-306, C.R.S. 2019.
The division concludes that the statute is ambiguous; thus, it relies
on the statutory scheme to determine that the General Assembly
intended to include police officers in the broader category of public
servants for purposes of section 18-8-306.
The division further holds that a defendant may be charged
multiple times for distinct offenses under section 18-8-306 when
the discrete offenses were separated in time and location and
comprised separate volitional departures. See Quintano v. People,
105 P.3d 585, 592 (Colo. 2005).
Finally, the division concludes that a threat of litigation to
cause economic hardship does not constitute criminal extortion
because it is not an “unlawful act,” which is necessary to prove
criminal extortion under section 18-3-207(1)(a), (b)(1), C.R.S. 2019.
Accordingly, the division affirms the judgment in part and
vacates the criminal extortion conviction.
COLORADO COURT OF APPEALS 2019COA152
Court of Appeals No. 16CA0048
Jefferson County District Court No. 14CR3169
Honorable Todd L. Vriesman, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Ashley Rae Ruth Knox,
Defendant-Appellant.
JUDGMENT AFFIRMED IN PART
AND VACATED IN PART
Division I
Opinion by JUDGE TAUBMAN
Freyre and Pawar, JJ., concur
Announced October 10, 2019
Philip J. Weiser, Attorney General, Kevin E. McReynolds, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Kamela Maktabi, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 Defendant, Ashley Rae Ruth Knox, appeals the judgment of
conviction entered on a jury verdict finding her guilty of criminal
extortion and three counts of attempt to influence a public servant. 1
Knox raises two contentions on appeal: first, the district court erred
in concluding that police officers are public servants under section
18-8-306, C.R.S. 2019; and second, her threat of litigation absent
settlement of a potential personal injury claim did not constitute
criminal extortion under section 18-3-207(1)(a), (b)(I), C.R.S. 2019.
Because we disagree with her first contention, we affirm her
convictions for attempt to influence a public servant. However,
because we agree with her second contention, we vacate her
conviction for criminal extortion.
I. Background
¶2 On November 26, 2014, Amber Diedrichs-Giffin was turning
left in her car when she heard a “bang” as Knox forcefully placed
her hands on the hood of the car. When Diedrichs-Giffin asked if
Knox was okay, Knox responded that her “leg kind of hurts.”
1The jury also found her guilty of two counts of false reporting;
however, Knox does not appeal those convictions.
1
Diedrichs-Giffin provided her insurance and contact information;
however, Knox declined to contact law enforcement officials and
asked for “weed” or money, stating, “We could settle this now.”
Knox walked away — seemingly uninjured — after Diedrichs-Giffin
directed Knox to contact Diedrichs-Giffin’s insurance company.
¶3 Shortly afterward, Diedrichs-Giffin called 911 to report the
accident, expressing her uncertainty about who was at fault. The
dispatcher told her that, without an injury, she did not need to file
a report; but if Knox contacted law enforcement officials later, they
could refer to the recording of Diedrichs-Giffin’s call.
¶4 Later the same day, Knox sent Diedrichs-Giffin a series of text
messages asking to settle matters outside of court. The particular
text message underlying the eventual criminal extortion charge and
conviction stated:
Hey amber, this is Ashley the young lady, u
hit..i have a little amount of time if i want to
pursue, court action…im already on pain
management and am going through hard times
like everyone..im sure..id rather u help me out
we agree to a one time feesable amount. We
can even sign something if u want..to keep out
of a long court proceeding going back to court
over several months, insurance goin up, and
my medical bills, since im in and out of
hospital already[.] Let me know, if that works
2
for you, or u would rather draw it out in court.
Thanks[.]
Diedrichs-Giffin did not respond to the message and testified that
she perceived it as an attempt to “make a one-time deal with me so
that way we didn’t have to pursue it in court.”
¶5 Six days later, Knox walked to an area near where the incident
occurred and called 911, reporting that she had just been injured in
a hit-and-run accident. Among other things, she claimed that the
driver had refused to wait for police and she could not walk home
because her leg and hip hurt.
¶6 Arvada police officers Dustin LeDoux and Donald Smith
responded to Knox’s report. Knox described Diedrichs-Giffin and
her vehicle to Officer Smith and provided him with her license plate
number. During the subsequent ambulance ride to the hospital,
she provided a more detailed account to Officer LeDoux.
¶7 Officer LeDoux tracked down Diedrichs-Giffin and learned that
the incident had, in fact, taken place six days earlier. He also
procured a copy of the text Knox had sent to Diedrichs-Giffin the
day of the incident. Officer LeDoux interviewed Knox at the hospital
after hearing Diedrichs-Giffin’s account. She initially maintained
3
her version of events, but when confronted with the text message,
she admitted that the incident had occurred six days earlier. She
explained that she had lied about the timing because she feared not
receiving medical treatment otherwise.
¶8 The district attorney charged Knox with criminal extortion,
false reporting, and three counts of attempt to influence a public
servant. The jury rejected her arguments that she was guilty only
of false reporting and that the prosecution had failed to prove that
she staged the accident or faked her injuries. She was convicted of
all counts, and this appeal followed.
II. Sufficiency of the Evidence
¶9 Knox contends that the prosecution failed to prove beyond a
reasonable doubt that she committed three offenses of attempt to
influence a public servant; thus, she argues that we must vacate
her convictions because the evidence was insufficient to establish
her guilt. Before determining whether there was sufficient evidence
to convict Knox of attempting to influence a public servant, we must
address two preliminary questions — (1) whether police officers are
public servants and (2) whether Knox could be convicted of three
offenses or only one offense.
4
A. Attempt to Influence Public Servants
¶ 10 Knox argues that the district court erred in concluding that
police officers are public servants for purposes of attempting to
influence a public servant under section 18-8-306. We disagree.
1. Standard of Review
¶ 11 Sufficiency of the evidence claims may be raised for the first
time on appeal and are not subject to plain error review. McCoy v.
People, 2019 COA 44, ¶ 19, 442 P.3d 379, 385.
¶ 12 We review questions of statutory interpretation de novo.
People v. Sena, 2016 COA 161, ¶ 10, 395 P.3d 1148, 1150.
¶ 13 When interpreting a statute, we look first to the language of
the statute, attributing plain and ordinary meanings to all words
and phrases. McCoy, ¶ 37, 442 P.3d at 389. We read the statute in
context with its broader statutory scheme, “giving consistent,
harmonious, and sensible effect to all of its parts, and we must
avoid constructions that would render any words or phrases
superfluous or lead to illogical or absurd results.” Id. at ¶ 38, 442
P.3d at 389. If the statutory language is clear and unambiguous,
we apply the provision as written. Id. If, on the other hand, we
conclude that the statute is reasonably susceptible of multiple
5
interpretations, we turn to other interpretive methods to ascertain
the legislature’s intent and resolve the ambiguity. Id. In so doing,
we may refer to canons of statutory construction, legislative history,
and the statute’s purpose. Id.
2. Applicable Law and Analysis
¶ 14 In Sena, a division of our court concluded that, by its plain
language, “police officers are public servants as contemplated in
section 18-8-306.” Sena, ¶ 15, 395 P.3d at 1151. Knox contends
Sena was wrongly decided. We agree with the holding in Sena.
However, although we agree with the Sena division’s conclusion
that a police officer is a public servant, we reach that conclusion
after determining that the statute is ambiguous, requiring
additional interpretation.
¶ 15 On the one hand, the reading of the statute and the
accompanying statutory scheme relied on by Knox suggests that the
legislature intended to distinguish police officers from public
servants by enacting separate statutes to address conduct against
them in certain circumstances. On the other hand, the Sena
division concluded, based on the plain language of the statute, that
police officers are included in the broad definition of public
6
servants. Because section 18-8-306 is amenable to two reasonable
interpretations, we conclude it is ambiguous.
¶ 16 The statute governing the crime of attempt to influence a
public servant provides:
Any 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.
§ 18-8-306.
¶ 17 Section 18-1-901(3)(o), C.R.S. 2019, defines “public servant,”
generally, as “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.”
Section 18-8-101(3), C.R.S. 2019, explicitly cross-references and
adopts section 18-1-901’s general definition; however, section 18-8-
301(4), C.R.S. 2019, expands on the definition’s scope, as relevant
here for purposes of section 18-8-306, to include “persons who
presently occupy the position of a public servant as defined in
7
section 18-8-101(3) or have been elected, appointed, or designated
to become a public servant although not yet occupying that
position.”
¶ 18 Section 18-1-901(3)(o)’s definition of “public servant” does not
use the term “peace officer.” Title 16, on the other hand, includes
police and law enforcement officers in the definition of “peace
officer.” § 16-2.5-101, C.R.S. 2019; § 16-2.5-105, C.R.S. 2019; see
also § 18-8-101(2.5) (“‘Peace officer’ has the same meaning as
described in section 16-2.5-101, C.R.S.”).
¶ 19 Some statutes distinguish offenses against a public servant
from offenses against a peace officer. Based on these statutes,
Knox contends police officers are not public servants. Specifically,
she notes that two sets of statutes create separate offenses for
conduct against police officers and public servants.
¶ 20 First, section 18-8-102, C.R.S. 2019, states that a person
commits obstruction — a class 3 misdemeanor 2 — of government
operations by intentionally obstructing, impairing, or hindering the
2A class 3 misdemeanor is punishable by up to six months
imprisonment, a $750 fine, or both. § 18-1.3-501(1)(a), C.R.S.
2019.
8
performance of a governmental function by a public servant.
Meanwhile, section 18-8-104, C.R.S. 2019, states that a person
obstructs a peace officer — a class 2 misdemeanor 3 — when “such
person knowingly obstructs, impairs, or hinders the enforcement of
the penal law or the preservation of the peace by a peace officer,
acting under color of his or her official authority.”
¶ 21 Similarly, the General Assembly established separate offenses
for impersonating a peace officer, section 18-8-112, C.R.S. 2019,
and impersonating a public servant, section 18-8-113, C.R.S. 2019.
Impersonating a peace officer is a class 6 felony, 4 and
impersonating a public servant is a class 3 misdemeanor. § 18-8-
112(2); § 18-8-113(3).
¶ 22 While the General Assembly delineated some offenses against
peace officers separately from offenses against public servants,
other statutes mention only public servants. In fact, title 18, article
8, part 3 only discusses public servants. Nevertheless, in In re
3 A class 2 misdemeanor is punishable by up to 364 days
imprisonment, a $1000 fine, or both. Id.
4 A class 6 felony is punishable by up to eighteen months in prison
with a one year mandatory period of parole, a $100,000 fine, or
both. § 18-1.3-401, C.R.S. 2019.
9
Elinoff, 22 P.3d 60, 62 (Colo. 2001), the supreme court affirmed the
suspension of an attorney for three years for bribing two police
officers under section 18-8-302(1)(a), C.R.S. 2019. Similarly, as the
Sena division noted, another division of our court in People v. Van
De Weghe, 2012 COA 204, ¶ 13, 312 P.3d 231, 234, accepted
without question that the defendant attempted to influence a public
servant under section 18-8-306 when he provided false information
to a police officer.
¶ 23 Though these decisions are not dispositive, they are consistent
with a plain reading of the statutory scheme, which suggests that
the General Assembly deliberately separated some offenses against
peace officers from those against public servants, while
encompassing peace officers in the broader category of public
servants for purposes of title 18, article 8, part 3. The General
Assembly may have intended to punish more harshly crimes
against peace officers in the circumstances noted above,
considering that those offenses carry harsher sentences. 5
5 See supra notes 2–4.
10
¶ 24 Moreover, the General Assembly did not enact alternative
legislation defining an attempt to influence a peace officer, and we
do not believe it intended to leave such an act unregulated.
¶ 25 Knox argues that an interpretation of section 18-8-306 that
considers peace officers to be public servants renders superfluous
the offense of false reporting to authorities under section 18-8-111,
C.R.S. 2019. We disagree, and instead adopt the holding in People
v. Blue, 253 P.3d 1273, 1278 (Colo. App. 2011). There, the division
concluded that false reporting does not constitute a specific
instance of attempt to influence a public servant. Id. Indeed, the
crime of false reporting does not require an intent to influence the
actions or decisions of a public official; rather, it “penalizes those
who provide untruthful information to public officials.” Id. Thus,
our interpretation of section 18-8-306 does not render superfluous
the offense of false reporting — instead it establishes a separate
offense with a separate mens rea. An individual can provide false
information with no intention of influencing authorities, such as
when a celebrity uses a pseudonym to protect his or her privacy.
See id. at 1277. A defendant may be convicted of both attempt to
influence a public servant and false reporting to authorities. Id.
11
¶ 26 Accordingly, we conclude that police officers are public
servants for purposes of section 18-8-306.
B. Multiple Convictions for Attempt to Influence a Public Servant
¶ 27 Knox argues that her convictions for attempt to influence a
public servant are multiplicitous in violation of her right to be free
from double jeopardy. She claims that her convictions stemmed
from a single, continuous course of conduct; thus, the court erred
in entering judgment against her on one count of attempt for each
law enforcement official with whom she spoke. We disagree.
1. Standard of Review
¶ 28 We review this unpreserved double jeopardy issue for plain
error. See McCoy, ¶ 19, 442 P.3d at 385; Scott v. People, 2017 CO
16, ¶ 12, 390 P.3d 832, 835. We reverse an unpreserved error only
if an error was both obvious and substantial and “so undermined
the fundamental fairness of the trial itself so as to cast serious
doubt on the reliability of the judgment of conviction.” Hagos v.
People, 2012 CO 63, ¶ 14, 288 P.3d 116, 120. “Plain errors or
defects affecting substantial rights may be noticed although they
were not brought to the attention of the court.” Crim. P. 52(b).
12
2. Applicable Law
¶ 29 The Double Jeopardy Clauses of the United States and
Colorado Constitutions preclude multiple convictions and
punishments for the same crime. U.S. Const. amends. V, XIV;
Colo. Const. art. II, § 18.
¶ 30 The related concept of “[m]ultiplicity is the charging of the
same offense in several counts, culminating in multiple
punishments.” Quintano v. People, 105 P.3d 585, 589 (Colo. 2005).
An individual’s protection from double jeopardy prohibits
multiplicitous charges for the same offense but does not insulate a
defendant from being prosecuted for distinct offenses under the
same statute. Id. at 590. It also does not bar punishment for the
same criminal conduct under multiple statutes. Woellhaf v. People,
105 P.3d 209, 214 (Colo. 2005).
¶ 31 We determine whether the statute authorizes conviction on
discrete charges by measuring the prescribed unit of prosecution,
which is “the manner in which a criminal statute permits a
defendant’s conduct to be divided into discrete acts for purposes of
prosecuting multiple offenses.” Id. at 215; Quintano, 105 P.3d at
589. Once we identify the unit of prosecution, we look to the
13
evidence to determine whether the defendant’s conduct constituted
factually discrete offenses. People v. Vigil, 251 P.3d 442, 448 (Colo.
App. 2010).
To determine whether offenses are factually
distinct, courts have considered (1) whether
the acts occurred at different times and were
separated by intervening events; (2) whether
there were separate volitional acts or new
volitional departures in the defendant’s course
of conduct; and (3) factors such as temporal
proximity, the location of the victim (e.g., if the
victim was moved), the defendant’s intent as
indicated by his or her conduct and
utterances, and the number of victims.
People v. McMinn, 2013 COA 94, ¶ 22, 412 P.3d 551, 558.
If we determine that the statute intended to create an ongoing and
continuous offense, we must conclude that multiplicitous charges
under the statute violate the defendant’s double jeopardy rights.
¶ 32 Therefore, because the prosecution charged Knox with
committing distinct offenses under the same statute, we apply a
two-tiered analysis — “(1) whether the unit of prosecution
prescribed by the legislature permits the charging of multiple
offenses; and (2) whether the evidence in support of each offense
justifies the charging of distinct offenses.” Quintano, 105 P.3d at
590.
14
¶ 33 This analysis requires us to look to the statutory language to
“ascertain and effectuate the legislative intent.” Woellhaf, 105 P.3d
at 215. Thus, we, again, apply principles of statutory interpretation
to determine whether section 18-8-306 authorizes charges of the
same offense in multiple counts. Supra Part II.A.1. In so doing, we
are mindful of the presumption against classifying a crime as a
continuing offense. People v. Thoro Prods. Co., 70 P.3d 1188, 1192
(Colo. 2003); People v. Johnson, 2013 COA 122, ¶ 14, 327 P.3d 305,
307; People v. Pérez, 129 P.3d 1090, 1092 (Colo. App. 2005).
3. Unit of Prosecution
¶ 34 As noted, section 18-8-306 states, in pertinent part:
Any 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 or the agency
or body of which he is a member, commits a
class 4 felony.
We look first to the plain language and agree with the People’s
contention that the relevant actus reus is an “attempt to influence.”
The statute does not define “attempt”; however, as relevant here,
Black’s Law Dictionary defines the term as “[t]he act or an instance
15
of making an effort to accomplish something, esp. without success.”
Black’s Law Dictionary 158 (11th ed. 2019). We do not believe that
the statutory definition of “attempt,” defined in section 18-2-101,
C.R.S. 2019, applies to section 18-8-306. See People v. Riley, 2015
COA 152, ¶¶ 27-29, 380 P.3d 157, 163-64 (concluding that
incorporating the statutory definition of “attempt” would be illogical
because section 18-8-306 “proscribes attempting to influence a
public servant,” and there is no offense of “influencing a public
servant”).
¶ 35 Thus, to attempt to influence a public servant, a person must
knowingly make an effort to influence a public servant. We
conclude, just as the McMinn division did when it considered the
units of prosecution for vehicular eluding and eluding a police
officer, that the plain language of section 18-8-306 considers “a
particular volitional act against a particular officer.” McMinn,
¶¶ 25, 31, 412 P.3d at 558-59. However, the discrete offenses are
not defined by the number of officers involved, but rather by the
distinct volitional acts of attempt to influence. See id. at ¶ 26, 412
P.3d at 558.
16
¶ 36 We agree with Knox that defining the number of offenses solely
by the number of officers involved would lead to an absurd result —
for instance, if a person were charged with five offenses for
simultaneously lying to five officers. Nevertheless, this scenario is
distinct from one in which a person lies to five officers at five
separate times, with each act isolated in time and constituting a
volitional departure in the course of conduct. See Quintano, 105
P.3d at 592.
¶ 37 Accordingly, we hold that a defendant may be charged with
multiple offenses of attempting to influence a public servant arising
from a single criminal episode when the discrete offenses were
separated in time and location and comprised separate volitional
departures. See id.; see also McMinn, ¶ 31, 412 P.3d at 559.
4. Evidence in Support of Each Offense
¶ 38 We next apply the unit of prosecution to the circumstances
present here. In so doing, we ask whether Knox’s conduct
constituted discrete offenses supporting her three convictions for
attempting to influence a public servant.
¶ 39 The People argue that Knox’s report to the dispatcher, her
account to Officer Smith, and her statement to Officer LeDoux were
17
three separate incidents. The evidence at trial supports this
conclusion: (1) Knox called dispatch to inaccurately report her
involvement in an accident that had just taken place; (2) Officer
Smith testified that he arrived on the scene and immediately took
Knox’s initial statement, gathering details to enable him to locate
the alleged perpetrator; and (3) as she was transported to the
hospital for treatment, Knox gave a more detailed statement to
Officer LeDoux.
¶ 40 Each of these statements took place at distinct times, were
recited to different public servants, and were separated by
intervening events — the dispatcher called police to the scene;
Officer Smith took Knox’s statement before the ambulance arrived;
and after the ambulance arrived, Officer LeDoux spoke with Knox
during their ride to the hospital. Moreover, each statement was
given in furtherance of her goal to seek medical attention and,
likely, initiate a police report to enable Knox to file a claim against
Diedrichs-Giffin’s insurance company.
¶ 41 Accordingly, we disagree with Knox’s contention that all three
statements arose from a single course of conduct — the 911 call.
18
Instead, we uphold her three convictions for attempt to influence a
public servant.
C. Proof Beyond a Reasonable Doubt
¶ 42 Having determined that police officers are public servants
under section 18-8-306 and that the statute allows for multiple
convictions, we address Knox’s argument that the prosecution
failed to meet its burden of proof to establish that she committed
the three attempts to influence a public servant. She supports this
contention by alleging that (1) the prosecution failed to prove that
police officers are public servants and (2) she did not possess the
necessary mens rea to attempt to influence the dispatcher. We
disagree.
1. Standard of Review
¶ 43 We review de novo whether the evidence presented at trial was
sufficient to sustain a conviction. Dempsey v. People, 117 P.3d 800,
807 (Colo. 2005).
2. Applicable Law
¶ 44 We engage in a substantial evidence test to determine whether
the evidence presented at trial sufficiently sustains the conviction.
Clark v. People, 232 P.3d 1287, 1291 (Colo. 2010). Under this test,
19
we ask “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 mind that the defendant is guilty of
the charge beyond a reasonable doubt.” Id. (quoting People v.
Bennett, 183 Colo. 125, 130, 515 P.2d 466, 469 (1973)). We give
the prosecution the benefit of every reasonable inference that may
fairly be drawn from the evidence, and we do not consider vague,
speculative, or imaginary doubt to be reasonable doubt. Id. at
1292.
3. Analysis
¶ 45 Having already established that Officers Smith and LeDoux
were public servants, we need only address whether the prosecution
proved that the dispatcher was a public servant and that Knox
attempted to influence the dispatcher.
¶ 46 First, the prosecution established that the dispatcher worked
for the Arvada Police Department, a government agency, and was
legally authorized to answer incoming emergency 911 calls and
dispatch those calls for service. When the dispatcher responded to
Knox’s call and dispatched police officers and emergency
20
responders, she was working in accordance with her official duties.
We conclude that, viewing the evidence in the light most favorable
to the prosecution, reasonable jurors could conclude that the
dispatcher was a public servant, particularly under the relevant,
jointly approved jury instruction:
“Public servant” means any officer or employee
of government, whether elected or appointed,
and any person participating as an adviser,
consultant, process server, or otherwise in
performing a government function, but the
term does not include witnesses.
Accord COLJI-Crim. F:306 (2018).
¶ 47 Second, by contacting dispatch, Knox intended to “alter or
affect” the dispatcher’s actions (i.e., sending police and emergency
responders), 6 as outlined in section 18-8-306. Thus, we conclude
that reasonable jurors could also conclude that Knox intended to
influence the dispatcher’s actions, not merely convey information.
6 Knox does not make a similar factual argument regarding the two
police officers, instead maintaining only her earlier argument that
they were not public servants.
21
III. Criminal Extortion
¶ 48 Knox contends, the People concede, and we agree that Knox’s
threats of litigation to cause “economic hardship” were insufficient
to prove her guilty of criminal extortion.
¶ 49 As pertinent here, a person commits criminal extortion if
(a) The person, without legal authority and
with the intent to induce another person
against that other person’s will to perform an
act or to refrain from performing a lawful act,
makes a substantial threat to . . . cause
economic hardship . . . to . . . the threatened
person or another person; and
(b) The person threatens to cause the results
described in paragraph (a) of this subsection
(1) by:
(I) Performing or causing an unlawful act to be
performed . . . .
§ 18-3-207. Thus, as a Colorado federal district court decision
explained, proof of extortion requires the prosecution to prove
(i) a person, lacking legal authority to do so,
ma[de] a threat to . . . cause economic . . .
harm to the victim, with the intent of coercing
the victim to perform an act or refrain from
performing an act, and (ii) the person
propose[d] to do so by resorting to an unlawful
act or by threatening to invoke action by a
third party, such as law enforcement.
22
Witt v. Snider, Civ. A. No. 16-cv-01303-MSK-CBS, 2017 WL
2215252, at *5 (D. Colo. May 19, 2017). However, making a threat
to do something while lacking express legal authority is not
tantamount to committing an unlawful act. See Whimbush v.
People, 869 P.2d 1245, 1249 (Colo. 1994). The defendant must
have made a threat to commit an unlawful act. Id.
¶ 50 Because no Colorado court has addressed this issue, we look
to the decisions of other jurisdictions that reached this conclusion.
As both parties mention, the overwhelming majority of jurisdictions
addressing the unlawful act requirement in the federal analogue
conclude that “[a] threat to litigate, by itself, is not necessarily
‘wrongful’ within [this context]. After all, under our system, parties
are encouraged to resort to courts for the redress of wrongs and the
enforcement of rights.” United States v. Pendergraft, 297 F.3d 1198,
1206 (11th Cir. 2002); see Deck v. Engineered Laminates, 349 F.3d
1253, 1257–58 (10th Cir. 2003); Rendelman v. State, 927 A.2d 468,
481 (Md. Ct. Spec. App. 2007), aff’d, 947 A.2d 546 (Md. 2008); see
also Zueger v. Goss, 2014 COA 61, ¶ 42, 343 P.3d 1028, 1038 (Colo.
App. 2014) (“Settlement implies a compromise; it does not establish
conduct against one’s will.”).
23
¶ 51 Accordingly, Knox’s threat to sue Diedrichs-Giffin did not
suggest that she intended to act unlawfully; instead, she gave
Diedrichs-Giffin the option to settle her alleged claim to avoid
litigation. We join other jurisdictions in concluding that the threat
of litigation does not constitute criminal extortion. Accordingly, we
vacate Knox’s conviction for criminal extortion.
IV. Jury Instruction on Mens Rea
¶ 52 Knox contends that the district court erred in not instructing
the jury on the mens rea for each element of the criminal extortion
charge. We need not address this issue because we vacate her
criminal extortion conviction.
V. Conclusion
¶ 53 Accordingly, the judgment is affirmed in part, and the criminal
extortion conviction is vacated.
JUDGE FREYRE and JUDGE PAWAR concur.
24