County District Court No. 18CR298 Honorable Brian J. Flynn,
P. Rubinstein, District Attorney, George Alan Holley, II,
Senior Deputy District Attorney, Grand Junction, Colorado,
A. Ring, Colorado State Public Defender, Jessica Sommer,
Deputy State Public Defender, Denver, Colorado, for
1 Pursuant to section 16-12-102(1), C.R.S. 2018, the People
appeal the district court's order dismissing, after a
preliminary hearing, the case charging the defendant, Justin
Walter Rieger, with solicitation to commit tampering with
physical evidence. We reverse and remand with directions.
2 Rieger had been charged in a separate case with numerous
offenses committed in connection with an alleged assault on
his girlfriend. While in jail, Rieger corresponded with the
girlfriend through Telmate, an electronic messaging system
that allows detainees to communicate with people outside the
3 Through Telmate, the girlfriend forwarded to Rieger a
picture of bruises on her arms that he had allegedly caused
during the assault. Two days after she uploaded the picture
on Telmate, Rieger asked her to "take that [picture]
off, because it . . . can incriminate me." The
girlfriend removed the picture from the Telmate account.
4 A District Attorney's investigator who was reviewing
Rieger's Telmate account had seen the
picture and Rieger's correspondence with the
5 The prosecution charged Rieger in this separate case with
solicitation to commit tampering with physical evidence.
After a preliminary hearing, the district court dismissed the
the definition of physical evidence . . . doesn't apply
to this electronic record; and so that - that's the basis
for me finding that there is not probable cause for that
because I find it's not physical evidence under . . .
6 The People contend that the district court improperly
dismissed the case. We agree.
7 Because we review a trial court's probable cause ruling
at a preliminary hearing for an abuse of discretion,
People v. Hall, 999 P.2d 207, 221 (Colo. 2000), we
will not overturn such a ruling absent a showing that it is
either manifestly arbitrary, unreasonable, or unfair,
People v. Castro, 854 P.2d 1262, 1265 (Colo. 1993),
or based on an erroneous view of the law, People v.
Moore, 226 P.3d 1076, 1081 (Colo.App. 2009).
8 Here, the trial court dismissed the case based on its
interpretation of section 18-8-610, C.R.S. 2018. The
court's interpretation of the statute presents a question
of law that we review de novo. People v. Johnson,
2015 CO 70, ¶ 9.
9 In interpreting a statute, our task is to ascertain and
give effect to the intent of the General Assembly. Dubois
v. People, 211 P.3d 41, 43 (Colo. 2009). "To
discern the legislative intent, we look first to the language
of the statute itself, reading words and phrases in context
and construing them according to rules of grammar and common
usage." People v. Butler, 2017 COA 117, ¶
24 (citation omitted). "Words and phrases that have
acquired a technical or particular meaning, whether by
legislative definition or otherwise, shall be construed
accordingly." § 2-4-101, C.R.S. 2018.
10 When the statutory language is clear and unambiguous,
"we apply the words as written without resort to other
rules of statutory interpretation." People v.
Shores, 2016 COA 129, ¶ 16 (citing People v.
Van De Weghe, 2012 COA 204, ¶ 8). But "[w]hen
the language of a statute is susceptible of more than one
reasonable understanding and is therefore considered
ambiguous," People v. Jones, 2015 CO 20, ¶
10, "a court must look beyond the language [of the
statute] and consider other factors, such as the
statute's legislative history and the objective sought to
be achieved by the legislation," People v.
Lovato, 2014 COA 113, ¶ 23.
11 Pursuant to section 18-8-610(1)(a), "[a] person
commits tampering with physical evidence if, believing that
an official proceeding is pending or about to be instituted
and acting without legal right or authority, he . . .
[d]estroys, mutilates, conceals, removes, or alters
physical evidence with intent to impair its verity
or availability in the pending or prospective official
proceeding[.]" (Emphasis added.) "'Physical
evidence', as used in this section, includes any article,
object, document, record, or other thing of physical
substance[.]" § 18-8-610(2).
12 The People contend that the trial court erred in
interpreting the definition of "physical evidence"
to exclude electronic documents such as the photograph the
girlfriend uploaded to the Telmate system. They argue that
under the "last antecedent rule, " the phrase
"of physical substance" modifies only the last noun
(i.e., "other thing") and not the previous ones
(i.e., "any article, object, document, record").
Rieger, on the other hand, argues that, even if the
"last antecedent rule" applies, an exception to the
rule also applies - an exception that would tie the phrase
"of physical substance" as much to the words
"document," and "record," as it is tied
to the phrase "other thing."
13 We do not, however, apply either of the parties'
proffered rules of statutory construction because it is
otherwise clear to us that electronically stored documents or
information falls within the ambit of the phrase
"physical evidence." See,
e.g., Holliday v. Bestop, Inc., 23
P.3d 700, 706 n.5 (Colo. 2001) ("Because the language of
the statute is unambiguous on this point, we do not resort to
interpretive rules of statutory construction and thus do not
address the parties' arguments ...