Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

People v. Brooks

Court of Appeals of Colorado, Second Division

June 15, 2017

The People of the State of Colorado, Plaintiff-Appellee,
v.
Kyle Brooks, Defendant-Appellant.

         Boulder County District Court Nos. 11CR1849 & 11CR1850 Honorable Maria E. Berkenkotter, Judge Honorable Roxanne Bailin, Judge

          Cynthia H. Coffman, Attorney General, Christine Brady, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

          Douglas K. Wilson, Colorado State Public Defender, Jud Lohnes, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant

          OPINION

          BERGER JUDGE

         ¶ 1 A jury convicted defendant, Kyle Brooks, of eight substantive offenses, including two counts of tampering with a witness or victim. The district court adjudicated Brooks a habitual criminal under section 18-1.3-801(2), C.R.S. 2016, and imposed a statutorily mandated sentence of twenty-four years' imprisonment.

         ¶ 2 Brooks appeals, claiming that (1) there was insufficient evidence to support one of his convictions of tampering with a witness or victim; (2) in adjudicating him a habitual criminal, the district court improperly took judicial notice of material in court files; (3) his guilty plea in one of the underlying convictions on the habitual criminal charges was constitutionally invalid, thus voiding his habitual criminal conviction; and (4) the court erred in concluding that his sentence was not disproportionate and in failing to conduct an extended proportionality review of his sentence. Because we hold as a matter of first impression that the tampering with a witness or victim statute does not require that the "attempt" to tamper actually be communicated to the victim or witness, we reject Brooks' sufficiency argument. We also reject his other contentions and affirm the judgment and sentence.

         I. Relevant Facts and Procedural History

         ¶ 3 Brooks discovered that his girlfriend was pregnant with another man's child, argued with her, and then assaulted her. A bystander called the police. Before the police arrived, Brooks fled.

         ¶ 4 The police planned to arrest Brooks when he appeared for an unrelated court appearance. When officers contacted Brooks at the courthouse, he resisted arrest and struggled with them. The officers restrained and arrested him.

         ¶ 5 While in jail, Brooks repeatedly telephoned his girlfriend (the victim) and others in an attempt to persuade them not to testify against him on the domestic violence charge or to testify falsely. The jail recorded these conversations and turned them over to the prosecution. These telephone calls were the basis for Brooks' first conviction for tampering with a witness or victim, a class 4 felony. Brooks does not appeal that conviction.

         ¶ 6 After the jail officers learned of these telephone calls, Brooks' telephone privileges were discontinued, but that did not stop him from further trying to tamper with the victim. Instead of phone calls, he wrote letters to the victim to persuade her either not to testify or to testify falsely on his behalf. Because he knew that if he attempted to mail the letters to the victim they would be intercepted by the jail, he hid them in an issue of Westword magazine and asked his cellmate to deliver them to the victim after the cellmate was released from jail. His cellmate refused to participate and instead gave the letters to a jail officer. As a result of this interception, the victim never received the letters. These letters formed the basis of the prosecution's second count of tampering with a witness or victim.

         ¶ 7 The jury acquitted Brooks of assault in the second degree (either a class 4 or class 6 felony) and two counts of disarming a peace officer (a class 5 felony), but the jury convicted him of two counts of assault in the third degree against the victim (a class 1 misdemeanor), two counts of assault in the third degree against a peace officer (a class 1 misdemeanor), resisting arrest (a class 2 misdemeanor), violation of a protection order (a class 1 misdemeanor), and the two counts of tampering with a witness or victim (both class 4 felonies) discussed above.

         ¶ 8 After the jury returned its verdicts, the district court held a trial on the habitual criminal count and adjudicated Brooks a habitual criminal. The court imposed a twenty-four-year sentence of imprisonment, as mandated by the habitual criminal statute.

         ¶ 9 Brooks requested and received an abbreviated proportionality review of the mandatory sentence. At the conclusion of that hearing, the district court concluded that Brooks' sentence was not disproportionate to his offenses and denied him an extended proportionality review.

         II. There Was Sufficient Evidence to Support Brooks' Conviction For Tampering With a Witness or Victim

         ¶ 10 Brooks argues that there was insufficient evidence to convict him of the second count of tampering with a witness or victim based on the letters because the victim never received them.[1]Because this argument relies on an unwarranted reading of the tampering statute, we reject it.

         ¶ 11 The statute provides as follows:

A person commits tampering with a witness or victim if he intentionally attempts without bribery or threats to induce a witness or victim or a person he believes is to be called to testify as a witness or victim in any official proceeding or who may be called to testify as a witness to or victim of any crime to:
(a) Testify falsely or unlawfully withhold any testimony; or
(b) Absent himself from any official proceeding to which he has been legally summoned; or
(c) Avoid legal process summoning him to testify.

§ 18-8-707(1), C.R.S. 2016 (emphasis added).

         ¶ 12 Statutory interpretation is a question of law that we review de novo. Marsh v. People, 2017 CO 10M, ¶ 19; Wolf Ranch, LLC v. City of Colorado Springs, 220 P.3d 559, 563 (Colo. 2009). We begin by applying two principles to the words and phrases at issue in the statute. First, we give the words and phrases their plain and ordinary meaning according to the rules of grammar and common usage. People v. Voth, 2013 CO 61, ¶ 21, Sidman v. Sidman, 2016 COA 44, ¶ 13; § 2-4-101, C.R.S. 2016. Second, we consider the words or phrases both in the context of the statute and in the context of any comprehensive statutory scheme of which the statute is a part. Doubleday v. People, 2016 CO 3, ¶ 20; Jefferson Cty. Bd. of Equalization v. Gerganoff, 241 P.3d 932, 935 (Colo. 2010). By applying these principles, we attempt to determine the General Assembly's intended meaning of the words or phrases, and harmonize that meaning with the comprehensive statutory scheme. Id. If the statutory language is not susceptible of more than one reasonable meaning, we enforce it as written and do not resort to other rules of statutory construction. Davison v. Indus. Claim Appeals Office, 84 P.3d 1023, 1036 (Colo. 2004); People v. Dist. Court, 713 P.2d 918, 921 (Colo. 1986).

         ¶ 13 Brooks argues that while an attempt to tamper need not be successful, the statute nevertheless requires that the attempt to tamper must at least reach the victim or witness.[2] Because it is undisputed that the letters did not reach the victim, Brooks claims that there was insufficient evidence to support his conviction. He concedes that he is guilty of a criminal attempt, as defined in section 18-2-101(1), C.R.S. 2016, to tamper with a witness or victim, but notes that he was not charged with this crime (a crime that, as we discuss below, does not exist).

         ¶ 14 We reject this argument because the concept of attempt is built into the tampering statute - the crime is completed when a defendant "intentionally attempts" to tamper with a victim or witness. § 18-8-707(1). If there were such a crime as attempted tampering with a witness or victim, it would be defined as "engaging in conduct constituting a substantial step toward the commission of the offense" of "intentionally attempt[ing]" to tamper with a witness or victim. See §§ 18-2-101(1), 18-8-707. We conclude that no such crime exists because it would be illogical to recognize a crime premised on an attempt to attempt, and "[a] statutory interpretation leading to an illogical or absurd result will not be followed." Frazier v. People, 90 P.3d 807, 811 (Colo. 2004).

         ¶ 15 People v. Yascavage, 101 P.3d 1090 (Colo. 2004), does not require a different result. In Yascavage, the Colorado Supreme Court held that there was insufficient evidence to support the defendant's conviction for solicitation to tamper with a witness or victim. Id. at 1096. Brooks argues that the court's recognition of the crime of solicitation to tamper with a witness or victim necessitates the recognition of the crime of attempting to tamper with a witness or victim. Brooks cites no authority, and we have found none, for the proposition that the existence of one inchoate form of an offense requires the existence of other inchoate forms of the offense.

         ¶ 16 We also observe that the Yascavage court held that "[t]he purpose of the [tampering with a witness or victim statute] was to punish any attempt to induce another to testify falsely or otherwise to subvert the administration of justice." Id. at 1092 (emphasis added). Thus, Yascavage provides no support for Brooks' contention that there is a crime of attempt to attempt to tamper with a witness or victim.

         ¶ 17 Neither does People v. Scialabba, 55 P.3d 207 (Colo.App. 2002), in which the division held that the defendant, who was charged with witness tampering, was not entitled to an instruction on the affirmative defense of abandonment. The defendant sent a letter to the victim trying to convince her not to appear in court and also asked his mother to tell the victim not to appear in court. Id. at 210. Because the defendant had completed the crime when he sent the letter and asked his mother to dissuade the victim from testifying, the division held that he was not entitled to an abandonment instruction. Id. at 210-11. Contrary to Brooks' contention, the division did not hold that attempted but unaccomplished communication with the victim or witness could not support a conviction under the statute.

         ¶ 18 Nothing in the plain language of the statute requires that the defendant actually contact a witness or victim either. Rather, an attempt by the defendant to do so is all the statute requires in this respect. The trial court instructed the jury that "attempt" in the tampering with a witness or victim statute means, "intentionally engaging in conduct constituting a substantial step toward the commission of the crime of Tampering with a Witness."[3] The jury was entitled to find that Brooks did everything within his power to attempt to unlawfully influence the victim. He wrote the letters, concealed ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.