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
Douglas K. Wilson, Colorado State Public Defender, Jud
Lohnes, Deputy State Public Defender, Denver, Colorado, for
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
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.
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
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.
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.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. 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
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." 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 ...