People v. Rieger, Court of Appeals No. 18CA1506

• Decision Date: 24 January 2019
• Docket Number: Court of Appeals No. 18CA1506
• Citation: 436 P.3d 610
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Justin Walter RIEGER, Defendant-Appellee.
• Court: Colorado Court of Appeals

436 P.3d 610

The PEOPLE of the State of Colorado, Plaintiff-Appellant,

v.Justin Walter RIEGER, Defendant-Appellee.

Court of Appeals No. 18CA1506

Colorado Court of Appeals, Division II.

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

Opinion by JUDGE DAILEY

¶ 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.

¶ 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, 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, 363 P.3d 169.

¶ 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, 431 P.3d 643 (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, 412 P.3d 894 (citing People v. Van De Weghe , 2012 COA 204, ¶ 8, 312 P.3d 231 ). But "[w]hen the language of a statute is susceptible of more than one reasonable understanding and is therefore considered ambiguous," People v. Jones , 2015 CO 20, ¶ 10, 346 P.3d 44, "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, 357 P.3d 212.

¶ 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 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 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.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, 425 P.3d 1152 ; 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 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, 307 Mont. 172, 36 P.3d 922 (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 , 61 Cal.4th 523, 189 Cal.Rptr.3d 518, 351 P.3d 1010, 1016 (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. , 225 W.Va. 256, 692 S.E.2d 299, 304 (2010), the West Virginia Supreme Court held that "digital images are ‘photographs’ under Rule 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 , 363 Ark. 413, 421, 214 S.W.3d 849 (2005) ; People v. Goldsmith , 59 Cal.4th 258, 172 Cal.Rptr.3d 637, 326 P.3d 239, 248-49 (Cal. 2014) ; State v. Marquardt , 2017 WI App 34, ¶ 22, 375 Wis.2d 797, 899 N.W.2d 737.

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