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People v. Rieger

Court of Appeals of Colorado, Second Division

January 24, 2019

The People of the State of Colorado, Plaintiff-Appellant,
Justin Walter Rieger, Defendant-Appellee.

          Mesa County District Court No. 18CR298 Honorable Brian J. Flynn, Judge.

          Daniel P. Rubinstein, District Attorney, George Alan Holley, II, Senior Deputy District Attorney, Grand Junction, Colorado, for Plaintiff-Appellant

          Megan A. Ring, Colorado State Public Defender, Jessica Sommer, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellee


          DAILEY JUDGE.

         ¶ 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.

         I. Background

         ¶ 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 jail.

         ¶ 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[1] and Rieger's correspondence with the girlfriend.

         ¶ 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 case because

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 . . . [section] 18-8-610.

         II. Analysis

         ¶ 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).[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, "[3] 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 "article," "object," "document," and "record," as it is tied to the phrase "other thing."[4]

         ¶ 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 ...

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