July 17, 2019

Colorado Court of Appeals: Reversal Required when Jury Instructed on Uncharged Felony Offense Rather than Charged Misdemeanor

The Colorado Court of Appeals issued its opinion in People v. Riley on Thursday, June 18, 2015.

Attempt to Influence a Public Servant—Tampering With Physical Evidence—Second-Degree Forgery—Jury Instructions—Constructive Amendment of Information—Jury Deliberations—Audio Recording.

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. Because the receipt contained fraudulent information based on defendant’s alterations of it, the People charged defendant with attempt to influence a public servant, tampering with physical evidence, and second-degree forgery. He was convicted by a jury on all counts.

On appeal, defendant argued that the trial court erred when it instructed the jury on the uncharged offense of felony forgery rather than the charged offense of second-degree forgery (a misdemeanor). The trial court’s instruction 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. Further, second-degree forgery is not a lesser included offense of felony forgery. Because it is constitutionally prohibited to convict a defendant of a charge not contained in the information, defendant’s conviction for second-degree forgery was reversed.

Defendant also argued that because the trial court did not provide the jury with instructions defining the terms “attempt” and “official proceeding,” his respective convictions for attempt to influence a public servant and tampering with physical evidence must be reversed. There is no reference to the criminal definition of “attempt,” and adding such a definition would result in an absurd result. Further, although “official proceeding” is defined in the statute, any error was harmless because defendant failed to show that this error contributed to his conviction for tampering with physical evidence.

Defendant argued that the trial court erred in allowing the jury during deliberations unfettered access to an audio recording between the prosecutor and defendant’s ex-wife about a conversation she had with defendant. When defendant’s ex-wife testified at trial, she denied everything she had initially told the police about the attack and all the statements she had made during the recorded interview with the prosecutor. Therefore, the audio recording of the interview was admitted as prior inconsistent statements, and the recording was played for the jury during her testimony. Although the trial court failed to exercise its discretion with respect to the jury’s access to the recording during deliberations, such failure did not substantially influence the verdict or affect the fairness of the trial such that reversal of defendant’s convictions was required.

The case was remanded for a new trial on the charge of second-degree forgery. The remaining convictions were affirmed.

Summary and full case available here, courtesy of The Colorado Lawyer.

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