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People v. Rediger

Supreme Court of Colorado, En Banc

April 30, 2018

The People of the State of Colorado, Petitioner/Cross-Respondent
v.
David Delbert Rediger. Respondent/Cross-Petitioner

          Certiorari to the Colorado Court of Appeals Court of Appeals Case No. 12CA1386

          Attorneys for Petitioner/Cross-Respondent: Cynthia H. Coffman, Attorney General Brock J. Swanson, Assistant Attorney General Denver, Colorado.

          Attorneys for Respondent/Cross-Petitioner: Douglas K. Wilson, Colorado State Public Defender Shann Jeffrey, Deputy State Public Defender Denver, Colorado.

          OPINION

          GABRIEL JUSTICE.

         ¶1 We granted the People's petition and David Delbert Rediger's cross-petition for certiorari from the court of appeals division's decision affirming in part and reversing in part Rediger's convictions for (1) interference with a public employee in a public building under section 18-9-110(1), C.R.S. (2017), and (2) interference with the staff, faculty, or students of an educational institution under section 18-9-109(2), C.R.S. (2017). People v. Rediger, 2015 COA 26, 411 P.3d 907.[1]

         ¶2 With regard to the first conviction, this case requires us to decide whether the owner-director of a nonprofit school regulated by various governmental entities is a "public employee" within the meaning of section 18-9-110(1). The division unanimously concluded that "public employee" means an employee of a public entity and that therefore an employee of a nonprofit school is not a public employee. Id. at ¶ 30, 411 P.3d at 912. Based on the plain meaning of the phrase "public employee, " we agree.

         ¶3 With regard to the second conviction, this case concerns the scope of two procedural bars to appellate review: invited error and waiver. As to this issue, a majority of the division concluded that Rediger had waived his right to challenge the constructive amendment of his criminal information when his defense counsel stated that he was "satisfied" with the proposed jury instructions. Id. at ¶ 64, 411 P.3d at 918. In our view, however, mere acquiescence to a jury instruction does not constitute a waiver without some record evidence that the defendant intentionally relinquished a known right. We likewise disagree with the People's contention that Rediger's alleged acquiescence to the erroneous instructions tendered by the People constitutes invited error. Rather, this purported acquiescence, at most, constitutes a forfeiture, and our review is for plain error. Applying that standard here, we conclude that the discrepancy between the charging document and the jury instructions in this case effected a constructive amendment of the charging document, and on the record presented, this error was plain and requires reversal.

         ¶4 For these reasons, we affirm the portion of the division's judgment dismissing with prejudice Rediger's conviction under section 18-9-110(1). We reverse, however, the portion of the judgment upholding Rediger's conviction and sentence under section 18-9-109(2), and we remand that count for a new trial.

         I. Facts and Procedural History

         ¶5 David Rediger drove to the Rocky Mountain Youth Academy (the "Academy")- a nonprofit day treatment school that serves students who are not succeeding in public school-to speak with Stacey Holland, the Academy's owner and director. Holland and her husband had accused Rediger of stealing hay from their property, and Rediger intended to speak with Holland about the theft charges against him.

         ¶6 Holland and Rediger gave conflicting accounts of the ensuing encounter. Holland said that Rediger pulled into the Academy parking lot at about 10:30 in the morning, demanded to talk right then in order to settle things, refused to leave despite Holland's repeated requests, and followed her into the Academy's classroom, where he had another confrontation with her, stating that if he did not immediately get the matter settled, then he would tell the sheriff's department that her husband had stolen a diesel truck. Holland characterized Rediger's behavior as "very aggressive" and said that she "was very scared" and "felt really threatened" by Rediger's conduct. Rediger conceded that he did not initially leave when asked to do so, but he said that he never stepped inside the school building and that he "was trying not to make a scene at the school."

         ¶7 Based on this incident, the People charged Rediger with intimidating a witness or victim under section 18-8-704, C.R.S. (2017), interference with a public employee in a public building under section 18-9-110(1), and interference with staff, faculty, or students of an educational institution under section 18-9-109(2). As to the last of these charges, the criminal information alleged:

On or about December 4, 2008, David Delbert Rediger, on the premises of an educational institution or at or in any building or other facility being used by an educational institution, unlawfully and willfully impeded the staff or faculty of the institution in the lawful performance of their duties or impeded a student of the institution in the lawful pursuit of his or her educational activities through the use of restraint, abduction, coercion, or intimidation or when force and violence were present or threatened; in violation of section C.R.S. 18-9-109(2).

         ¶8 The case proceeded, and after a pretrial conference, the prosecutor tendered a set of proposed jury instructions for defense counsel to review. Notably, these proposed instructions included an elemental instruction tracking section 18-9-109(1)(b), rather than section 18-9-109(2), which was the subsection charged in the information. That instruction provided, in pertinent part:

The elements of the crime of Interference with Staff, Faculty, or Students of an Educational Institution are:
1. That the defendant,
2. in the County of Conejos, State of Colorado, on or about December 4, 2008
3. was on or near the premises or facilities of any educational institution, and
4. knowingly,
5. denied to students, school officials, employees, or invitees,
6. lawful use of the property or facilities of the institution.

         ¶9 Defense counsel confirmed that he had received the proposed instructions and read them when the prosecutor sent them, but defense counsel made no statements at that time regarding the above-quoted proposed instruction.

         ¶10 The case then proceeded to trial, and after the close of the evidence but before the court charged the jury, the court asked whether defense counsel was "satisfied with the instructions." Defense counsel replied, "Yes. Defense is satisfied." At no time did defense counsel object to the proposed instruction tracking section 18-9-109(1)(b), nor does the record indicate that the court or the parties discussed that instruction.

         ¶11 The case went to the jury, and after deliberation, the jury found Rediger not guilty of intimidating a witness or victim under section 18-8-704 but guilty of interference with a public employee in a public building under section 18-9-110(1) and interference with staff, faculty, or students of an educational institution under section 18-9-109(2).

         ¶12 Rediger appealed, arguing, as pertinent here, that insufficient evidence supported his conviction under section 18-9-110(1) because Holland was not a public employee. He further argued that the discrepancy between the information and jury instructions regarding the interference with staff, faculty, or students charge resulted in a constructive amendment of his charging document.

         ¶13 In a partially split, published opinion, a division of the court of appeals affirmed in part and reversed in part. With respect to Rediger's sufficiency claim, the division concluded that "public employee" refers to "a victim employed by a public entity" and that the trial court had plainly erred in entering judgment on Rediger's conviction under section 18-9-110(1). Rediger, ¶¶ 30, 40-43, 411 P.3d at 912, 914. With respect to Rediger's constructive amendment claim, however, the division majority determined that Rediger had waived that claim through "affirmative acquiescence" when he stated, "Defense is satisfied" with the jury instructions. Id. at ¶¶ 53-61, 411 P.3d at 915-17.

         ¶14 Judge Richman specially concurred. Although he agreed with the result reached by the majority, he rejected the majority's premise that plain error review applies to sufficiency challenges raised for the first time on appeal, and he disagreed with the framework derived from People v. Lacallo, 2014 COA 78, 338 P.3d 442, and People v.Heywood, 2014 COA 99, 357 P.3d 201, on ...


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