Douglas County District Court No. 13CR145 Honorable Paul A.
Cynthia H. Coffman, Attorney General, Kevin E. McReynolds,
Assistant Attorney General, Denver, Colorado, for
Douglas K. Wilson, Colorado State Public Defender, Meghan M.
Morris, Deputy State Public Defender, Denver, Colorado, for
1 During the course of a heated child-custody dispute,
defendant Shawna Lee Hoggard forwarded to the court-appointed
child and family investigator (CFI) a chain of e-mails
between her and her ex-husband. Hoggard allegedly falsified
that e-mail chain by adding five sentences that made it
appear that her ex-husband had threatened her. As a result of
that alleged falsification, Hoggard was charged with (and
ultimately convicted of) second degree forgery and attempt to
influence a public servant. Hoggard appeals those
2 On appeal, Hoggard contends that the jury was erroneously
instructed on both charges. First, she contends that the
trial court constructively amended the second degree forgery
charge by instructing the jury on the uncharged and more
serious offense of felony forgery. Second, she contends that
the trial court erred in its instruction on attempt to
influence a public servant by instructing the jury that the
"intent" element applied only to one element of the
offense, when, in fact, the intent element applies to two
additional elements of the offense as well.
3 Hoggard acknowledges that she did not raise either of the
alleged errors that she identifies on appeal during trial,
but contends that those instructional errors require reversal
of her convictions as plain error. The People contend that
appellate review is entirely barred because Hoggard either
invited the error or waived her right to review by not
objecting at trial when given the opportunity to do so. The
People further argue that even if we conclude that appellate
review is appropriate, the instructions do not merit reversal
under the plain error standard.
4 We reject the People's argument that the invited error
or waiver doctrines bar appellate review under the
circumstances of this case and, instead, conclude that the
instructional errors are subject to plain error review. We
further conclude that the trial court committed obvious
instructional error in both instances. But we disagree that
the trial court's error as to the second degree forgery
charge effected a constructive amendment of that charge or
constituted plain error. We finally conclude that there is no
reasonable probability that the trial court's failure to
instruct the jury on the required mental state for each
element of the attempt to influence a public servant charge
contributed to Hoggard's conviction of that offense and,
therefore, was not plain error. We affirm.
5 In the course of her investigation, the CFI received an
e-mail from Hoggard forwarding a chain of what purported to
be prior correspondence between her and her ex-husband. The
forwarded e-mail chain included a threat ostensibly made by
Hoggard's ex-husband. The CFI forwarded the e-mail chain
to Hoggard's ex-husband with the threatening language
highlighted and asked what his intent was in writing the
e-mail. He responded that he did not write the threatening
portion of the e-mail. He sent the CFI a copy of what he said
was the original e-mail, which did not contain the
threatening language. Hoggard's ex-husband then contacted
the police to report that an e-mail in his name had been
6 Hoggard provided the investigating police officer with
access to her e-mail account, including a folder of
correspondence with her ex-husband. The officer found a
version of the e-mail identical to that which had been
forwarded to the CFI, except that it did not include the
threatening language. But when the officer accessed
Hoggard's sent folder, he found the version of the e-mail
containing the threatening language.
7 Hoggard was charged with attempt to influence a public
servant, a class 4 felony, and second degree forgery, a class
8 As discussed at greater length below, the prosecutor
tendered to the court an instruction for second degree
forgery that tracked the elements of felony forgery and an
instruction for attempt to influence a public servant that
did not set the mens rea element of intent out as a separate
element. At the jury instruction conference, neither side
requested any changes to the instructions tendered by the
9 Hoggard appeals both convictions based on independent
contentions of unpreserved instructional error.
Reviewability of Instructional Error
10 The People argue that, as a threshold matter, the
doctrines of invited error and waiver preclude appellate
review of Hoggard's instructional error claims. The
People contend that defense counsel approved the disputed
jury instructions, thereby either inviting the errors of
which Hoggard now complains or waiving any right to appellate
review of the asserted instructional errors. We disagree.
11 The invited error doctrine is premised on "the rule
that a party may not complain on appeal of an error that
[s]he has invited or injected into the case." People
v. Zapata, 779 P.2d 1307, 1309 (Colo. 1989). The
doctrine applies "where [a] party expressly acquiesces
to conduct by the court or the opposing party, "
Horton v. Suthers, 43 P.3d 611, 619 (Colo. 2002),
and precludes appellate review of instructional error if that
error was "injected by the defendant as a matter of
trial strategy, " Zapata, 779 P.2d at 1309.
Invited error may also be found where an "omission [by
counsel] is strategic." People v. Stewart, 55
P.3d 107, 119 (Colo. 2002). The invited error doctrine,
however, "does not preclude appellate review of errors
resulting from attorney incompetence" or from
inadvertence. People v. Gross, 2012 CO 60M, ¶ 9
(citing Stewart, 55 P.3d at 119).
12 We conclude that defense counsel's failure to object
to the instructional errors does not amount to invited error.
13 With respect to the jury instruction on the charge of
attempt to influence a public servant, the crux of
Hoggard's defense to that charge was that she did not act
with the intent necessary to satisfy the "attempt to
influence a public servant" and "by means of
deceit" elements. She asserts that the instruction is
erroneous because it did not specify the culpable mental
state required for those very elements. Given the
juxtaposition between trial strategy and the asserted error
in the instruction, we discern no plausible strategic motive
for defense counsel's failure to object, and, therefore,
conclude that counsel's failure was an oversight, not a
strategy. See Stewart, 55 P.3d at 119 (finding no
invited error based on, inter alia, "the heavy reliance
[defendant] placed on [a] theory during trial"). Thus,
invited error does not apply here.
14 As to the jury instruction on second degree forgery, we
note that the only distinction between the two offenses is
that felony forgery requires additional proof that the
falsified document was of a particular type. Because the type
of document at issue (an e-mail) was never contested at
trial, we are persuaded that defense counsel's failure to
object was, likewise, the result of inadvertence, and that
any error was not invited.
15 The lines distinguishing the doctrine of invited error
from that of waiver are not precisely drawn. See People
v. Rediger, 2015 COA 26, ¶ 56 (cert.
granted Feb. 16, 2016) (citing decisions treating
"implied waiver" as synonymous with "invited
error"); People v. Greer, 262 P.3d 920, 937 n.7
(Colo.App. 2011) ("Invited error is akin to waived
error."). Although divisions of this court have recently
clarified the parameters of waiver, see People v.
Rail, 2016 COA 24, ¶¶ 27-41; Rediger,
¶¶ 51-60, the precise contours of the waiver
doctrine in Colorado are not yet clearly
settled. Each division of this court that has
analyzed the waiver issue, however, has held that waiver
requires some "affirmative conduct, " albeit to
varying degrees. See, e.g., People v.
Yoder, 2016 COA 50, ¶ 10 (finding waiver where
counsel objected to certain protective order provisions, but
stated that he had no objection to others); Rail,
¶¶ 36-37 (finding instructional error claim waived
by "affirmative conduct"); Rediger,
¶¶ 59-61. Although Rediger provides the
closest analogy to the circumstances of this case, we
conclude that the facts before us are distinguishable, though
not markedly, from those presented in Rediger.
16 In Rediger, the court ordered the prosecutor to
prepare proposed jury instructions before trial, and ordered
defense counsel to file any objections within two days
following the submission of the prosecutor's proposed
instructions. Rediger, ¶ 45. The proposed
instructions included elemental instructions under a
different subsection of the statute than was charged in the
information. Id. Defense counsel did not object.
Id. During jury selection, the court described the
charges against the defendant using the erroneous
instruction, and defense counsel did not object. Id.
at ¶ 46. After the close of evidence and following a
jury instruction conference, the court asked if defense
counsel was "satisfied with the instructions";
defense counsel responded, "Yes. Defense is
satisfied." Id. at ¶ 47. The court then
instructed the jury using the erroneous instruction; again,
defense counsel did not object. Id. at ¶ 48.
Based on these circumstances, the Rediger division
concluded that, through counsel's "affirmative
conduct, " the defendant had waived any claim of
instructional error or relief based on any alleged
constructive amendment. Id. at ¶ 64.
17 Here, the prosecution's proposed jury instructions
were provided on the morning of the first day of trial,
without the opportunity to deliberate and object that had
been present in Rediger. Further, the errors in the
instructions alleged by Hoggard were not evident during the
court's initial reading of the charges to the jury, again
in contrast to Rediger. Finally, at the close of the
jury instruction conference, defense counsel merely said that
there was no objection from the defense, and did not
affirmatively state that the defense was
"satisfied" with the instructions, as was relied on
in Rediger. Thus, Rediger is factually
distinguishable, albeit thinly.
18 To the extent, however, that a fair reading of
Rediger's waiver analysis reaches the facts
presented here - and there is a sound argument that it does,
see Rediger, ¶ 57 (noting that "[n]o
Colorado case has tempered waiver by distinguishing mere
general acquiescence from other forms of affirmative
conduct") - we respectfully decline to follow it. This
is a run-of-the-mill example of an unpreserved jury
instruction appeal: the prosecution tendered instructions;
the court asked if there were any objections; both sides
simply said, "no"; and the court gave the
instructions as tendered. This is the heartland of plain
error instructional review. Indeed, if failing to object to
an instruction is waiver and objecting is preservation, the
space remaining for plain error review in the instructional
error context diminishes nearly to the point of vanishing.
19 Refusing to find waiver here does not give the defendant a
free pass for failing to timely object; she must still run
the daunting gauntlet of plain error review to obtain any
relief. Moreover, finding waiver here would have perverse
consequences. If simply stating "no objection"
constitutes waiver barring even plain error review, then
counsel's only readily apparent option to avoid waiver is
to take no position at all (or refuse to answer) when asked
by the trial court if there is any objection. The practical
effect of not objecting when invited to do so and taking no
position is the same: conveying to the court that no
particularized objection comes to defense counsel's mind.
But the latter creates an unnecessarily antagonistic trial
environment by obligating prudent defense counsel to
"take no position" each time the trial court
invites input but no specific objection comes to mind.
20 Thus, we hold that waiver does not bar appellate review
under the circumstances presented here. See People v.
Perez-Rodriguez, 2017 COA 77, ¶ 28 (holding that
counsel's statement of "no objection" in
response to "the court's inquiry [that] grouped all
twenty-four instructions" together "does not
establish deliberate conduct sufficient to support invited
error or waiver"); see also United States v.
Harris, 695 F.3d 1125, 1130 n.4 (10th Cir. 2012)
(holding that defense counsel had not waived right to appeal
by replying, "No, Your Honor" when trial court
asked whether there were objections to jury instructions);
United States v. Zubia-Torres, 550 F.3d 1202, 1207
(10th Cir. 2008) ("[T]here must be some evidence that
the waiver is knowing and voluntary, beyond counsel's
rote statement that she is not objecting . . . ."). We
next turn to the merits of Hoggard's appeal.
Second Degree Forgery Instructional Error
21 The trial court gave the jury the following elemental