Hoggard v. People

• Decision Date: 15 June 2020
• Docket Number: Supreme Court Case No. 17SC564
• Citation: 465 P.3d 34
• Parties: Shawna Lee HOGGARD, Petitioner, v. The PEOPLE of the State of Colorado, Respondent.
• Court: Colorado Supreme Court

465 P.3d 34

Shawna Lee HOGGARD, Petitioner,
v.
The PEOPLE of the State of Colorado, Respondent.

Supreme Court Case No. 17SC564

Supreme Court of Colorado.

June 15, 2020

Attorneys for Petitioner: Megan A. Ring, Public Defender, Meghan M. Morris, Deputy Public Defender, Denver, Colorado

Attorneys for Respondent: Philip J. Weiser, Attorney General, Kevin E. McReynolds, Assistant Attorney General, Denver, Colorado

En Banc

JUSTICE BOATRIGHT delivered the Opinion of the Court.

¶1 While Petitioner Shawna Lee Hoggard and her ex-husband, Javier,¹ were in the midst of a child custody dispute,² she forwarded an email to their court-appointed child and family investigator ("CFI"). Hoggard told the CFI that the email, which contained concerning comments and an apparent threat, had been sent to her from Javier. Javier subsequently claimed that while he had written parts of the email, he had not written the concerning portions. He then contacted law enforcement to report that Hoggard had falsified the email.

¶2 The People charged Hoggard with attempt to influence a public servant and second-degree forgery. At trial, when the court instructed the jury on the charge of attempt to influence a public servant, it did not inform the jury that the mens rea of "with the intent" applied to all elements of the crime and not just a single element. Additionally, when the court instructed the jury on the

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charge of second-degree forgery, a class 1 misdemeanor, it included language in one element from the offense of felony forgery, a class 5 felony.³ Hoggard did not object to either instruction. The jury found her guilty of both original charges. Hoggard appealed, and a division of the court of appeals upheld her convictions. Hoggard now argues again that the trial court's instructions constitute reversible error.⁴ We disagree.

¶3 First, we hold that even if the instruction on attempt to influence a public servant was erroneous, any error was not plain. Second, we hold that, although the trial court erred in including language from the felony forgery statute when instructing the jury on the second-degree forgery charge, the instruction did not amount to a constructive amendment and the error was not plain. Hence, we affirm the court of appeals’ judgment on different grounds.

I. Facts and Procedural History

¶4 At a temporary orders hearing, the court gave Javier full custody of his and Hoggard's sons; additionally, the court assigned a CFI to investigate and make parenting recommendations regarding permanent orders. During the CFI's investigation, Hoggard forwarded the CFI a chain of emails between her and Javier. These emails included several concerning comments, including an apparent threat that Javier made against Hoggard. Specifically, the email that Hoggard forwarded to the CFI stated:

Let me know when and where you have scheduled a court order[ed] supervised visit and I will decide if they can go. I don't like you and I'll make sure with all my power to destroy you.

Also, the boys have their own phones as you should know and they are responsible for answering their own phones. They know, because [my wife] and I have told them several times that they can speak with you whenever they want.

It's obvious that they don't want to ever talk to you or your family again. Why don't you just leave them alone and let them enjoy the family they've chose[n]. It's mine.

(Emphases added.)

¶5 The CFI then forwarded the email chain to Javier to ascertain his intent in writing the email. In response, Javier denied writing the concerning portions of the email and forwarded to the CFI what he represented to be the unaltered email, which did not include the above-emphasized language. Javier also contacted law enforcement to report that Hoggard had falsified the email.

¶6 Ultimately, the People charged Hoggard with one count of attempt to influence a public servant, a class 4 felony, and one count of second-degree forgery, a class 1 misdemeanor. At trial, Hoggard argued that she did not alter the email, nor did she know how the alterations occurred.

¶7 After the close of evidence, the People tendered a proposed instruction for attempt to influence a public servant that informed the jury that the mental state of "with the intent" only applied to one element of the crime:

The elements of the crime of Attempt to Influence a Public Servant are:

1. That the defendant,

2. in the State of Colorado, at or about the date and place charged,

3. attempted to influence a public servant,

4. by means of deceit

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5. with the intent to alter or affect the public servant's decision, vote, opinion, or action concerning any matter ,

6. which was to be considered or performed by the public servant or the agency or body of which the public servant was a member.

(Emphasis added.) While this instruction largely tracked the text of the statute, it did not require the jury to find that Hoggard acted intentionally with regard to all elements of the crime. With no objection from Hoggard, the trial court provided the People's tendered instruction to the jury.

¶8 The People also tendered the following elemental instruction for second-degree forgery:

The elements of the crime of Second Degree Forgery are:

1. That the defendant,

2. in the State of Colorado, at or about the date and place charged,

3. with intent to defraud,

4. falsely made, completed, altered, or uttered a written instrument,

5. which was or purported to be, or which was calculated to become or represent if completed an instrument which does or may evidence, create, or otherwise affect a legal right, interest, obligation, or status: namely, an email.

(Emphasis added.) The first four elements tracked the second-degree forgery statute; however, the fifth element derived some of its language from the felony forgery statute. Again, Hoggard did not object, and the trial court provided the jury with the People's proposed instruction. The jury then found Hoggard guilty of both attempt to influence a public servant and second-degree forgery.

¶9 Hoggard appealed, contending that the trial court reversibly erred in instructing the jury that the mental state of "with the intent" of attempt to influence a public servant applied to only one element. Additionally, Hoggard argued that instructing the jury on the elements of felony forgery resulted in a constructive amendment of the second-degree forgery charge and, therefore, amounted to structural error.

¶10 The court of appeals disagreed and affirmed Hoggard's convictions. People v. Hoggard , 2017 COA 88, ¶ 56, ––– P.3d ––––. The court held that the trial court's instruction on the attempt to influence a public servant charge did not constitute plain error because there was no reasonable probability that the error contributed to Hoggard's conviction. Id. at ¶ 55. The court also held that the forgery instruction did not constitute a constructive amendment because the court determined that second-degree forgery is a lesser included offense of felony forgery. Id. at ¶¶ 27–33. Additionally, it concluded that the trial court did not commit plain error when it instructed the jury on the forgery charge because the error did not prejudice Hoggard. Id. at ¶ 35.

¶11 Hoggard petitioned this court for review of the court of appeals’ decision. We granted certiorari and now affirm the court of appeals’ judgment on different grounds.

II. Standard of Review

¶12 We review jury instructions de novo to determine whether they accurately inform the jury of the governing law. People v. DeGreat , 2018 CO 83, ¶ 15, 428 P.3d 541, 544. Similarly, whether jury instructions constitute a constructive amendment that subjects a defendant to the risk of conviction for an uncharged offense is a question of law that we review de novo. See id.

¶13 When a defendant fails to object to a trial court's jury instructions, the instructions are reviewed for plain error. People v. Garcia , 28 P.3d 340, 344 (Colo. 2001). For an error to be deemed plain, it must be both obvious and substantial. People v. Miller , 113 P.3d 743, 750 (Colo. 2005). This means the error must "so undermine the fundamental fairness of the trial itself as to cast serious doubt on the reliability of the judgment of conviction." People v. Weinreich , 119 P.3d 1073, 1078 (Colo. 2005).⁵ In the jury

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instruction context, "the defendant must ‘demonstrate not only that the instruction affected a substantial right, but also that the record reveals a reasonable possibility that the error contributed to his conviction.’ " Miller , 113 P.3d at 750 (quoting Garcia , 28 P.3d at 344 ).

III. Attempt to Influence a Public Servant

¶14 We first determine whether the trial court plainly erred when it instructed the jury on the attempt to influence a public servant charge. Assuming without deciding that an error occurred here, we consider whether that error was plain. Because we determine that any error was neither obvious nor substantial, we conclude that any infirmity in the trial court's instruction on the attempt to influence a public servant charge did not rise to the level of plain error.

A. Law

¶15 The General Assembly is vested with the authority both to establish the legal components of criminal liability and to define criminal conduct. Copeland v. People , 2 P.3d 1283, 1286 (Colo. 2000). Except in those statutes enumerating strict liability crimes, a defendant cannot face criminal sanctions "unless the prosecution establishes that, in addition to committing a proscribed act, the person acted with the culpable mental state required for the particular crime." Id. Moreover, section 18-1-503(4), C.R.S. (2019), provides that "[w]hen a statute defining an offense prescribes as an element thereof a specified culpable mental state, that mental state is deemed to apply to every element of the offense unless an intent to limit its application clearly appears."

B. Application

¶16 Hoggard contends that the instruction on attempt to influence a public servant was plainly erroneous because...