Conejos County District Court No. 09CR6 Honorable Michael A. Gonzales, Judge
Cynthia H. Coffman, Attorney General, Brock J. Swanson, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Douglas K. Wilson, Colorado State Public Defender, Shann Jeffery, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 A jury convicted David Delbert Rediger of interfering with a public employee in a public building under section 18-9-110(1), C.R.S. 2014, and interfering with staff, faculty, or students of an educational institution under section 18-9-109(2), C.R.S. 2014. He appeals on two grounds: first, the evidence was insufficient to prove that the victim was a "public employee" or that the facility was a "public building, " as required by 18-9-110 (1); and, second, the prosecution made an improper constructive amendment of the second charge by tendering an elemental instruction on a section of 18-9-109 different from the section in the indictment.
¶2 After interpreting section 18-9-110(1), we reverse the judgment of conviction on the first count because "public employee" does not include the self-employed director of a private school who was the victim, and "public building" does not include the privately owned and operated school building in which the victim worked. As to the second count, we conclude that by affirmatively acquiescing in all of the instructions tendered by the prosecutor, Rediger's trial counsel did not invite instructional error; rather, he waived any such error. Therefore, we affirm the judgment of conviction on the second count.
¶3 Believing that Rediger had stolen hay from their property, the victim and her husband asked the district attorney to bring charges against him. While school was in session, Rediger drove to the Rocky Mountain Youth Academy (the Academy) - where the victim worked as owner-director - to discuss the charges.
¶4 At trial, Rediger and the victim gave conflicting testimony regarding their encounter. The victim testified that she was in her classroom when Rediger arrived. After she stepped out and told him to leave, he followed her into her classroom before leaving, slamming the door, and driving away. In contrast, Rediger testified that he found the victim outside of the building. Although she told him to leave, he followed her to the classroom landing but did not go inside.
II. The Evidence Was Insufficient to Prove Beyond a Reasonable Doubt that Rediger Interfered with a Public Employee in a Public Building
¶5 The victim testified that she was "employed by Rocky Mountain Youth Academy" as the owner, director, and special education teacher. She described the Academy as "a day treatment school that provides academics but also [has] a treatment piece, which provides therapy twice a week for kids who are, for one reason or another, not succeeding in public school." Because the Academy was "state accredited through Colorado Department of Education, " state regulations mandated annual monitoring and audits. The Academy also needed to "hold a license through the Department of Human Services in Denver, " which required additional audits and inspections, and the "Colorado Department of Health also has to come and monitor and inspect."
¶6 The victim also testified that the Academy received funding from the Colorado Department of Education and the Department of Human Services, and that the state "monitor[s] [the Academy] very closely." Ninety-eight percent of the 2008 budget derived from "some type of public department or system or school district." Students were placed through "probation or mental health, " "the court system, " "private placement, " or school districts. The victim received a salary from this budget, but the school's staff were "not currently set up with PERA [the state retirement program]."
¶7 She explained that state departments could just "show up" without her permission. When asked whether the state departments "exhibit[ed] any control over [her] facility" she responded that "[y]es, " because the school had "to stay accredited; and that's what gives [the Academy their] accreditation, " the state departments "check [its] curriculum and that kind of thing." And she agreed with the prosecutor that, "it's not just like you have a private school and you do what you want?"
¶8 On redirect examination, she described having founded the school, adding that she "ha[d] to go through the proper channels, " including "writ[ing] policy and procedure to Colorado Department of Education, " "see[ing] if the State Board of Education w[ould] approve it, " "hav[ing] Department of Human Services from Denver come down, visit with you, and also approve it or deny it." As well, the process required the "Colorado Department of Ed [to] approve [the school's] licensure" and the director to have a master's degree. She also confirmed that the school was "compelled to take [students] if the court appoints them to come to your school and you have a spot." But if the Department of Social Services sent a student she "ha[s] the option to say, no, that this is too high a risk for whatever reason or to say, '[t]his isn't the proper placement.'" Similarly, she "d[id]n't believe" that she had to take students sent by "other departments or parts of government."
B. Preservation and Standard of Review
¶9 Because Rediger neither moved for judgment of acquittal nor otherwise challenged the sufficiency of the evidence below, he did not preserve this issue. People v. Ujaama, 2012 COA 36, ¶37 (An issue is unpreserved for review when "no objection or request was made in the trial court."). Rediger's suggestion that he did so when counsel addressed this issue briefly during closing argument is unpersuasive. Because Crim. P. 29(a) provides for challenging sufficiency of the evidence by motion, Rediger's argument to the jury failed to sufficiently "alert the trial court to the particular issue." People v. Cordova, 293 P.3d 114, 120 (Colo.App. 2011).
¶10 Even so, in Colorado, sufficiency of the evidence may be raised for the first time on appeal. People v. Garcia, 2012 COA 79, ¶35. "Whether the record contains sufficient evidence to support a conviction is subject to de novo review." People v. Heywood, 2014 COA 99, ¶9. But where, as here, the issue is unpreserved, sometimes "the judgment will be reversed only for plain error." Id.; see also People v. Lacallo, 2014 COA 78, ¶¶8-10 (noting differing opinions among divisions of this court).
¶11 Plain error review involves three questions: "whether error occurred; if so, whether it was obvious; and if both, whether the error casts serious doubt on the reliability of the judgment of conviction." Lacallo, ¶19. But where a defendant raises sufficiency of the evidence for the first time on appeal, what is the practical consequence of applying plain error review? The answer "depends on which of the three plain error questions is the focus of appellate inquiry." Id.
¶12 Where analyzing the evidence requires the preliminary interpretation of a statute neither advanced by the defendant below nor decided by any Colorado court, the initial focus is on obviousness. See id. at ¶23. An appellate court need not address the merits of a defendant's sufficiency-of-the-evidence claim when determining the meaning of operative statutory terms "under existing Colorado authority would [have been] difficult, " or the argument does not implicate a "well-settled legal principle that numerous courts elsewhere have uniformly embraced." Id. at ¶¶30-32; cf. People v. Hagos, 250 P.3d 596, 620 (Colo.App. 2009) ("Because no error was plain or obvious at the time of defendant's trial, it follows that there is no plain error here.").
¶13 Still, even when "operative statutory terms have never been interpreted, [and] no previous case law would have alerted the court" to the error, Heywood, ¶36 (internal quotation marks omitted), if the statute is unambiguous or contains operative terms with "common and ordinary meanings, " id., an alleged sufficiency error based on defendant's interpretation would have been obvious. See id. And if obviousness is satisfied, the reviewing court must weigh the sufficiency of the evidence de novo. See id. at ¶33.
¶14 For these reasons, plain error review can yield a different result only when three rare circumstances converge: a threshold question of statutory interpretation must be answered before sufficiency of the evidence can be determined; that interpretation was crafted by appellate counsel; and the interpretation urged for the first time on appeal fails the obviousness requirement of plain error review. Otherwise, whether or not review is for plain error, the analysis will start - and usually end - with examining the sufficiency of the evidence de novo.
¶15 We begin by considering whether this statute has been interpreted by Colorado cases, involves a well-settled legal principle consistently interpreted by other jurisdictions, or includes terms having commonly understood meanings. Then we take up whether defendant's proposed interpretation is correct.
1. Public Employee
¶16 We conclude that the phrase "public employee" is unambiguous, for three reasons.
¶17 First, the phrase "public employee" includes only plain and ordinary words. Black's Law Dictionary 602 (9th ed. 2009) defines employee as "[a] person who works in the service of another person (the employer) under an express or implied contract of hire, under which the employer has the right to control the details of work performance." And, as relevant here, Black's also defines "public" as "[r]elating or belonging to an entire community, state, or nation." Id. at 1348.
¶18 Second, in People v. Moore, a division of this court interpreted "public employee" in section 18-9-110(2). 2013 COA 86, ¶13 ("Here, the statute is unambiguous and we therefore give its terms their plain meaning.") (cert. granted Mar. 24, 2014). Although the division interpreted a different subsection of the statute, as discussed below, Moore offers a relevant interpretation of the phrase at issue.
¶19 Third, several Colorado cases have defined "public employee, " albeit in the immunity context. See, e.g., Henisse v. First Transit, Inc., 247 P.3d 577, 580 (Colo. 2011) (determining whether a privately employed RTD bus driver constituted a "public employee" under the Colorado Governmental Immunity Act) (cited in Moore, ¶15). For example, in Norton v. Gilman, 949 P.2d 565, 567 (Colo. 1997), our supreme court applied the common law test for determining whether a worker qualifies as an employee - the "alleged employer's right to control the details of performance" - to decide whether county department of social services employees were "public employees."
2. Public Building
¶20 For three reasons, we also conclude that the phrase "public building" is unambiguous.
¶21 First, section 18-9-110(1) makes clear that the statute applies to "any public building owned, operated, or controlled by the state, or any of the political subdivisions of the state or at any building owned, operated, or controlled by the federal government."
¶22 Second, Black's Law Dictionary at 1349, similarly defines "public building" as "[a] building that is accessible to the public, " especially, "one owned by the government."
¶23 Third, many courts in other jurisdictions have also defined the phrase similarly, in a variety of contexts.
¶24 Thus, because both operative phrases consist of words with plain and ordinary meanings, which have been interpreted by Colorado courts and courts in other jurisdictions, we do not begin with the obviousness prong, as in Lacallo. Instead, we must follow the approach of Heywood and start by weighing ...