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People v. Hoggard

Court of Appeals of Colorado, Sixth Division

June 29, 2017

The People of the State of Colorado, Plaintiff-Appellee,
v.
Shawna Lee Hoggard, Defendant-Appellant.

          Douglas County District Court No. 13CR145 Honorable Paul A. King, Judge

          Cynthia H. Coffman, Attorney General, Kevin E. McReynolds, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

          Douglas K. Wilson, Colorado State Public Defender, Meghan M. Morris, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant

          OPINION

          WELLING, JUDGE

          ¶ 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 convictions.

         ¶ 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.

          I. Background

         ¶ 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 falsified.

         ¶ 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 1 misdemeanor.

         ¶ 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 prosecution.

         ¶ 9 Hoggard appeals both convictions based on independent contentions of unpreserved instructional error.

         II. 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.

          A. Invited Error

         ¶ 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.

         B. Waiver

         ¶ 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.[1] 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.

         III. Second Degree Forgery Instructional Error

         ¶ 21 The trial court gave the jury the following elemental ...


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