People v. Riley

• Decision Date: 22 October 2015
• Docket Number: Court of Appeals No. 12CA1858
• Citation: 2015 COA 152,380 P.3d 157
• Parties: The PEOPLE of the State of Colorado, Plaintiff–Appellee, v. Calvin Richard RILEY, Defendant–Appellant.
• Court: Colorado Court of Appeals

380 P.3d 157

2015 COA 152

The PEOPLE of the State of Colorado, Plaintiff–Appellee,

v.Calvin Richard RILEY, Defendant–Appellant.

Court of Appeals No. 12CA1858

Colorado Court of Appeals, Div. I.

Prior Opinion Announced June 18, 2015, WITHDRAWN Petition for Rehearing GRANTED

Announced October 22, 2015

Cynthia H. Coffman, Attorney General, Kevin E. McReynolds, Assistant Attorney General, Denver, Colorado, for Plaintiff–Appellee

Douglas K. Wilson, Colorado State Public Defender, Chelsea E. Mowrer, Deputy State Public Defender, Denver, Colorado, for Defendant–Appellant

Opinion by JUDGE BERGER

¶ 1 Defendant, Calvin Richard Riley, appeals the judgment of conviction entered on jury verdicts finding him guilty of attempt to influence a public servant, tampering with physical evidence, and second degree forgery.

¶ 2 Defendant argues that (1) the trial court's elemental jury instruction on second degree forgery resulted in a constructive amendment of the information; (2) the court erred in not defining, in its instructions on attempt to influence a public servant, the term “attempt” by reference to the criminal attempt statute (an issue of first impression), and in not defining “official proceeding” in its instructions on tampering with physical evidence; and (3) the court erred in allowing the jury unfettered access to an audio recording of an interview between defendant's ex-wife and the prosecutor.

¶ 3 We reverse defendant's second degree forgery conviction and remand the case for a new trial on that count. We affirm his convictions for attempt to influence a public servant and tampering with physical evidence.

I. Relevant Facts and Procedural History

¶ 4 The People charged defendant with third degree assault and harassment for allegedly attacking his ex-wife in July 2006. After the charges were filed, defendant gave his attorney a receipt from a hotel in Kansas that purportedly showed that defendant was not in Colorado on the dates of the charged offenses. Defendant's attorney gave the hotel receipt to the prosecutor at a pretrial conference in an attempt to persuade the prosecutor to dismiss the charges.

¶ 5 The prosecutor examined the hotel receipt and concluded that it had been altered because the arrival and departure dates listed in the top part of the receipt did not match the arrival and departure dates listed in the bottom part. Further investigation revealed that the hotel's records showed that defendant had stayed there in 2007, but there was no record of defendant staying there in 2006.

¶ 6 Based on the altered hotel receipt, the People charged defendant with attempt to influence a public servant in violation of section 18–8–306, C.R.S. 2015, tampering with physical evidence in violation of section 18–8–610(1)(b), C.R.S. 2015, and second degree forgery in violation of section 18–5–104, C.R.S. 2015. The trial court held a consolidated jury trial on all of the charges.

¶ 7 Defendant testified at trial. He admitted that he had altered the hotel receipt, but he contended that he had done so to show his attorney that he took a trip to the same location each year. He testified that he purposefully left some of the 2007 dates on the receipt when he changed the others to 2006 dates in order to show, on one piece of paper, the pattern of his annual trips. Defendant denied to the jury that he submitted the document with the intention that it be introduced into evidence or affect anyone's decisions about the charges.

¶ 8 The jury convicted defendant of attempt to influence a public servant, tampering with physical evidence, and second degree forgery, but it acquitted him of third degree assault and harassment. The trial court sentenced defendant to concurrent prison sentences of two years for attempt to influence a public servant and one year for tampering with physical evidence. The court also sentenced defendant to six months in jail for second degree forgery, to be served in prison concurrently with the sentences on the other two counts.

II. The Trial Court's Constructive Amendment of the Information Requires Reversal of Defendant's Second Degree Forgery Conviction

¶ 9 Defendant argues that the trial court erred when it instructed the jury on the uncharged offense of felony forgery under section 18–5–102, C.R.S. 2015, rather than the charged offense of second degree forgery (a misdemeanor) under section 18–5–104. We agree.

¶ 10 “The United States and Colorado Constitutions guarantee a defendant the fundamental right to be notified of the charges made against him.” People v. Madden , 111 P.3d 452, 455 (Colo. 2005). “[A] defendant cannot be required to answer a charge not contained in the information” because “the notice requirement lies at the foundation of the due process of law.” Id. ; see also People v. Rodriguez , 914 P.2d 230, 257 (Colo. 1996).

¶ 11 A constructive amendment is a variance between the charge contained in the information and the charge of which a defendant is convicted that “changes an essential element of the charged offense and thereby alters the substance of the [information].” Rodriguez , 914 P.2d at 257. Constructive amendments of an information are constitutionally prohibited because they “effectively subject a defendant to the risk of conviction for an offense that was not originally charged in the [information].” Id. (internal quotation marks omitted). A constructive amendment occurs when a defendant “is charged with one crime and the jury is instructed on the elements of another.” People v. Jefferson , 934 P.2d 870, 872 (Colo. App. 1996).

¶ 12 Defendant was charged with conduct prohibited by one statute, section 18–5–104, and a judgment of conviction was entered under section 18–5–104, but he was convicted by the jury of conduct prohibited by another statute, section 18–5–102. See Skidmore v. People , 154 Colo. 363, 367, 390 P.2d 944, 946 (1964).

¶ 13 Under section 18–5–104, “[a] person commits second degree forgery if, with intent to defraud, such person falsely makes, completes, alters, or utters a written instrument of a kind not described in section 18–5–102 .” § 18–5–104(1) (emphasis added). As relevant here, section 18–5–102 provides that a person commits felony forgery if he or she “falsely makes, completes, alters, or utters a written instrument which is or purports to be, or which is calculated to become or to represent if completed ... [an] instrument which does or may evidence, create, transfer, terminate, or otherwise affect a legal right, interest, obligation, or status.” § 18–5–102(1)(c).

¶ 14 The information charged defendant with second degree forgery “in violation of section 18–5–104.” However, the jury instructions provided that the elements of the crime of second degree forgery included that defendant “falsely made or completed or altered or uttered a written instrument ... which was purported to be, or which was calculated to become or to represent if completed an instrument which does or may evidence, create, transfer, terminate, or otherwise affect a legal right, interest, obligation, or status.” By omitting the term “not” before the phrase “was purported to be ... an instrument which does or may ... affect a legal right, interest, obligation, or status,” the court mistakenly instructed the jury on the elements of felony forgery under section 18–5–102, rather than second degree forgery under section 18–5–104.

¶ 15 The trial court's instruction thus constituted a constructive amendment of the information because it changed an essential element of the charged offense and allowed the jury to convict defendant of an uncharged crime. See People v. Petschow , 119 P.3d 495, 504 (Colo. App. 2004) ; Jefferson , 934 P.2d at 872. Because it is constitutionally prohibited to convict a defendant of a charge not contained in the information, defendant's conviction for second degree forgery must be reversed. See Madden , 111 P.3d at 455 ; Rodriguez , 914 P.2d at 257 ; Skidmore , 154 Colo. at 367, 390 P.2d at 945–46 ; see also People in Interest of H.W., III , 226 P.3d 1134, 1137 (Colo. App. 2009) (Because “constructive amendments effectively subject a defendant to the risk of conviction for an offense that was not originally charged” in the information, “constructive amendments are per se reversible error.”); People v. Pahl , 169 P.3d 169, 177 (Colo. App. 2006) (same).

¶ 16 We reject the People's argument that reversal is not required because the jury necessarily found that defendant committed second degree forgery when it convicted him pursuant to the instructions on the greater offense of felony forgery. The People argue that because the jury found defendant guilty under the more stringent test for felony forgery, it necessarily found that he committed the lesser offense of second degree forgery. However, second degree forgery is not a lesser included offense of felony forgery. A lesser offense is included if “proof of the facts establishing the statutory elements of the greater offense necessarily establishes all of the elements of the lesser offense.” H.W., III , 226 P.3d at 1138 (internal quotation marks omitted). The jury's finding that the elements of felony forgery were met precludes a finding that the elements of second degree forgery were met because if the written instrument at issue was the kind described in section 18–5–102 (felony forgery), it necessarily could not also be “of a kind not described in section 18–5–102 .” § 18–5–104(1) (emphasis added).

¶ 17 Accordingly, we reverse defendant's conviction for second degree forgery and remand the case for a new trial on that count.

¶ 18 Defendant argues that, under H.W., III , 226 P.3d at 1138–40, he cannot be retried for second degree forgery. We disagree. In H.W., III , a division of this court held that because the prosecution did not present any evidence on the offense charged but rather presented evidence on an offense that was not charged, the defendant's conviction must be reversed. Id. at 1137–38. Defendant emphasizes the...