County District Court No. 14CR1022 Honorable Thomas R. Ensor,
Cynthia H. Coffman, Attorney General, Jillian J. Price,
Assistant Attorney General, Denver, Colorado, for
Douglas K. Wilson, Colorado State Public Defender, Rachel K.
Mercer, Deputy State Public Defender, Denver, Colorado, for
1 Defendant, Samuel David Carian, appeals his judgment of
conviction entered on a jury verdict finding him guilty of
one count of forgery and one count of attempting to influence
a public servant. We affirm in part and vacate in part.
2 Carian was on probation for possession of a controlled
substance, a misdemeanor. He met his probation officer,
Tuesday Black, in September 2013. Black informed Carian that
he had to complete regular urine drug tests. Black gave him a
list of approved facilities. Carian completed some tests, but
missed others and also returned tests with positive results.
3 In November 2013, Carian told Black that he wanted to do
his urinalysis at a facility called Wiz Quiz. Black told him
that it was not an approved facility. Carian met Black in
November and December 2013, and he told her he was submitting
samples at Wiz Quiz. Black tried to get the test results from
Wiz Quiz but was unable to confirm that Carian was a customer
4 In December 2013, Black drafted a revocation complaint for
Carian's various probation violations. It did not discuss
Wiz Quiz or Black's inability to verify Carian's
urinalysis test results. When Black served Carian with this
complaint, he gave her four documents that he said were
copies of his urinalysis results from Wiz Quiz. The documents
said that he had had his urine tested at the Wiz Quiz
location in Lakewood, Colorado, in November 2013 and that the
results were negative for illegal drugs.
5 Black tried to contact Wiz Quiz to verify Carian's
urinalysis test results but could not reach anyone at the
website or the phone number listed on the documents he
submitted to her. Eventually, she found the contact
information for Julie Calvert, the manager of the Wiz Quiz in
Lakewood. Calvert said Carian's documents did not match
her company's forms. She also said the contact
information was incorrect and she had no record of Carian
being a Wiz Quiz customer.
6 Carian was then charged with forgery under section
18-5-102(1)(d), C.R.S. 2016, and attempting to influence a
public servant under section 18-8-306, C.R.S. 2016, because
he allegedly gave Black fraudulent test results.
Sufficiency of the Evidence
7 Carian contends that the evidence was insufficient to
convict him of forgery under section 18-5-102(1)(d) because
the urinalysis test results at issue that he handed to his
probation officer were not a "public record" or
"an instrument filed or required by law to be filed or
legally fileable in or with a public office or public
servant." While we conclude that the urinalysis test
results from Wiz Quiz were "instrument[s]" within
the reach of the statute, we also conclude that they were not
filed, required by law to be filed, or legally fileable as
provided in section 18-5-102(1)(d), and therefore the
evidence does not support his forgery conviction.
Standard of Review
8 We review the record de novo to determine whether the
evidence was sufficient to support a conviction. People
v. Roggow, 2013 CO 70, ¶ 13, 318 P.3d 446, 450. To
the extent that the resolution of this issue requires
interpretation of the forgery statute, we conduct that review
de novo. Chavez v. People, 2015 CO 62, ¶ 7, 359
P.3d 1040, 1042.
9 When a defendant challenges the sufficiency of the
evidence, we must determine "whether any rational trier
of fact might accept the evidence, taken as a whole and in
the light most favorable to the prosecution, as sufficient to
support a finding of the accused's guilt beyond a
reasonable doubt." People v. Sprouse, 983 P.2d
771, 777 (Colo. 1999).
10 "The Due Process Clauses of the Colorado and United
States Constitutions require the prosecution to prove the
existence of every element of a charged offense beyond a
reasonable doubt." People v. Espinoza, 195 P.3d
1122, 1127-28 (Colo.App. 2008); see U.S. Const.
amends. V, VI, XIV; Colo. Const. art. II, §§ 16,
23, 25; In re Winship, 397 U.S. 358, 363-64 (1970).
"[A] modicum of relevant evidence will not rationally
support a conviction beyond a reasonable doubt, " and a
verdict cannot be based on "guessing, speculation, or
conjecture." Sprouse, 983 P.2d at 778. If
reasonable jurors must necessarily have a reasonable doubt
about a defendant's guilt, the trial court must direct an
acquittal. People v. Bennett, 183 Colo. 125, 132-33,
515 P.2d 466, 470 (1973).
11 A person commits forgery if with intent to defraud, such
person falsely makes, completes, alters or utters a written
instrument which is or purports to be, or which is calculated
to become or to represent if completed:
[a] public record or an instrument filed or required by law
to be filed or legally fileable in or with a public office or
§ 18-5-102(1)(d). "As a matter of law, the crime of
forgery is complete when the act and guilty knowledge
coincide with the intent to defraud." People v.
Cunefare, 102 P.3d 302, 307 n.4 (Colo. 2004). The intent
to defraud may be inferred "where the defendant passed
an instrument he knows to be false." Id. As
relevant here, a "[w]ritten instrument" is defined
as "any paper, document, or other instrument containing
written or printed matter or the equivalent thereof, used for
purposes of reciting, embodying, conveying, or recording
information[.]" § 18-5-101(9), C.R.S.
2016. "Utter" means "to transfer,
pass, or deliver, or attempt or cause to be transferred,
passed, or delivered, to another person any instrument."
12 The elements of the crime of forgery under section
18-5-102(1)(d) are: (1) that a person; (2) with intent to
defraud; (3) falsely made, completed, or uttered a written
instrument; (4) which was, or which purported to be, or which
was calculated to become, or to represent if completed; (5) a
public record or an instrument filed, or required by law to
be filed, or legally fileable in or with a public office or
public servant. In this appeal, we must first consider
whether the urinalysis reports Carian gave to Black are
"instrument[s], " or "public record[s]"
within the ambit of section 18-5-102(1)(d) and, if so,
whether they were "calculated to become or to represent
if completed . . . [a] public record or an instrument filed
or required by law to be filed or legally fileable in or with
a public office or public servant." §
13 When we interpret a statute, our primary goal is to
ascertain and give effect to the intent of the General
Assembly. Dubois v. People, 211 P.3d 41, 43 (Colo.
2009). The statute must be read as a whole, giving words and
phrases their plain and ordinary meanings, and the statute
must be interpreted to give consistent, harmonious, and
sensible effect to all of its parts. People v.
Summers, 208 P.3d 251, 254 (Colo. 2009).
14 If the plain language of the statute is clear and
unambiguous, we apply the statute as written, unless it leads
to an absurd result. Kauntz v. HCA-Healthone, LLC,
174 P.3d 813, 816 (Colo.App. 2007); see also People v.
Kovacs, 2012 COA 111, ¶ 11, 284 P.3d 186, 188.
Additionally, no interpretation should render any part of the
statute superfluous. See Kisselman v. Am. Family Mut.
Ins. Co., 292 P.3d 964, 969 (Colo.App. 2011). "A
strained or forced construction of a statutory term is to be
avoided, and we must look to the context of a statutory
term." Fogg v. Macaluso, 892 P.2d 271, 274
(Colo. 1995) (citation omitted).
15 We presume that the General Assembly intends a just and
reasonable result when it enacts a statute, and a statutory
construction that defeats the legislative intent will not be
followed. Kauntz, 174 P.3d at 816. If, however, the
statutory language lends itself to alternative constructions
and its intended scope is unclear, a court may apply other
rules of statutory construction to determine which
alternative construction is in accordance with the objective
sought to be achieved by the legislation. Id.
16 A word may be defined by an accompanying word and,
ordinarily, the coupling of words denotes an intention that
they should be understood in the same general sense.
See 2A Norman Singer & Shambie Singer,
Sutherland Statutory Construction § 47:16,
Westlaw (7th ed. database updated Nov. 2016). However, the
use of the disjunctive "or, " according to the
supreme court, can also connote alternate ways of committing
the same crime. See People v. Barry, 2015 COA 4,
¶ 96, 349 P.3d 1139, 1157 ("[W]hen the legislature
joins a number of acts disjunctively in a single provision of
the criminal code, courts have found that 'the
legislature intended to describe alternate ways of committing
a single crime rather than to create separate
offenses.'" (quoting People v. Abiodun, 111
P.3d 462, 465 (Colo. 2005))).
17 Under the plain language of the statute, a person commits
forgery if, with the intent to defraud, he or she makes,
completes, or utters "a written instrument which is
or purports to be, or which is calculated
to become or to represent if completed . . . [a]
public record or an instrument filed or
required by law to be filed or legally fileable in
or with a public office or public
servant." § 18-5-102(1)(d) (emphasis added).
"[W]hen the word 'or' is used in a statute, it
is presumed to be used in the disjunctive sense, unless
legislative intent is clearly to the contrary."
Armintrout v. People, 864 P.2d 576, 581 (Colo.
1993). Thus, while Carian argues that the evidence is
insufficient to charge ...