February 18, 2019

Colorado Court of Appeals: Electronically Stored Photograph Qualifies as “Physical Evidence” for Purposes of Tampering Statute

The Colorado Court of Appeals issued its opinion in People v. Rieger on Thursday, January 24, 2019.

Order of Dismissal—Tampering with Physical Evidence—Electronic Documents are Physical Evidence.

Rieger had been charged in a separate case with numerous offenses in connection with an alleged assault on his girlfriend. While in jail, Rieger corresponded with his girlfriend through Telmate, an electronic messaging system that allows detainees to communicate with people outside the jail. Through Telmate, the girlfriend forwarded a picture to Rieger of bruises on her arms that he had allegedly caused during the assault. Rieger asked her to remove the picture because it could incriminate him. She removed the picture from the Telmate account.

A District Attorney’s investigator reviewed the Telmate account, which led to a charge in this separate case of solicitation to commit tampering with physical evidence. After a preliminary hearing, the district court dismissed the case, finding that the definition of physical evidence did not apply to the electronic record under C.R.S. § 8-8-610.

On appeal, the People contended that the district court improperly dismissed the case because it erred in interpreting the definition of “physical evidence” to exclude electronic documents. C.R.S. § 18-8-610(2) defines physical evidence as including articles, objects, documents, records, or other things of physical substance. The court of appeals concluded it is clear that electronically stored documents or information fall within the ambit of “physical evidence.” Further, electronically stored, digital images qualify as physical evidence for purposes of the tampering with physical evidence statute. It was therefore error to dismiss on the grounds that electronically stored images are not physical evidence.

Rieger argued that even if the photo was physical evidence, the dismissal should be affirmed because the electronic duplicate uploaded to Telmate is not physical evidence. The court perceived no reason why a duplicate of a photograph is not physical evidence for purposes of the tampering statute.

Rieger further argued that the removal of the image does not evince a specific intent to make the image unavailable at trial. Here, Rieger asked the girlfriend to remove the photograph because it could incriminate him. In addition, this evidence was being reviewed in relation to a probable cause determination after a preliminary hearing, which is a low standard to meet. The evidence was sufficient to induce a person of ordinary prudence and caution to entertain a reasonable belief that Rieger intended to deprive the prosecution of the ability to use the picture. Probable cause supported the charge of tampering with physical evidence. Therefore, the case should not have been dismissed.

The order of dismissal was reversed and the matter was remanded with directions to reinstate the case.

Summary provided courtesy of Colorado Lawyer.