Arapahoe County District Court No. 08CR595 Honorable Valeria N. Spencer, Judge
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
¶ 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. 2014, tampering with physical evidence in violation of section 18-8-610(1)(b), C.R.S. 2014, and second degree forgery in violation of section 18-5-104, C.R.S. 2014. 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. 2014, 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 ...