August 23, 2019

Colorado Supreme Court: Owner-Director of Nonprofit School is Not “Public Employee”

The Colorado Supreme Court issued its opinion in People v. Rediger on Monday, April 30, 2018.

Public Employee—Invited Error—Waiver—Constructive Amendment—Plain Error Review.

This case required the supreme court to decide two questions: (1) whether the owner–director of a nonprofit school regulated by various governmental entities is a “public employee” within the meaning of C.R.S. § 18-9-110(1), and (2) whether respondent waived or invited error with respect to a constructive amendment claim when his defense counsel stated that he was “satisfied” with the proposed jury instructions, notwithstanding the fact that the elemental instruction on the charge of interference with the staff, faculty, or students of an educational institution tracked C.R.S. § 18-9-109(1)(b) rather than C.R.S. § 18-9-109(2), which was the subsection charged in the information.

As to the first question, the court concluded that “public employee” means an employee of a governmental entity, and therefore an employee of a nonprofit school is not a public employee. Accordingly, the court agreed with the court of appeals division’s decision that respondent’s conviction for interference with a public employee in a public building cannot stand.

As to the second question, the court concluded that respondent neither waived nor invited error with respect to his constructive amendment claim because the record does not indicate that he or his counsel either intentionally relinquished a known right or deliberately injected the erroneous jury instruction as a matter of trial strategy. The court instead construed respondent’s general acquiescence to the instructions as a forfeiture and, reviewing for plain error, concluded that the constructive amendment of respondent’s charging document constituted plain error necessitating a new trial.

The court affirmed in part and reversed in part the court of appeals division’s judgment.

Summary provided courtesy of Colorado Lawyer.

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