v. Tee

     The summaries of the Colorado Court of Appeals published opinions
  constitute no part of the opinion of the division but have been prepared by
  the division for the convenience of the reader. The summaries may not be
    cited or relied upon as they are not the official language of the division.
  Any discrepancy between the language in the summary and in the opinion
           should be resolved in favor of the language in the opinion.


                                                                   SUMMARY
                                                                June 14, 2018

                                

No. 15CA0714, People v. Tee — Criminal Procedure — Grand
Jury — Indictment; Juries — Predeliberation — Waiver; Crimes
— Attempt to Influence a Public Servant

     A division of the court of appeals first rejects defendant’s

assertion that because the statewide grand jury indictment received

by the venue court did not include, for confidentiality reasons, a

copy of the foreperson’s signature, the venue court lacked

jurisdiction. Next, as to defense counsel’s waiver of a

predeliberation contention, the division distinguishes People v.

Rediger, 

, relying instead on Stackhouse v. People, 

, to find intentional relinquishment of a known right. Finally,

the division concludes that the evidence of attempt to influence a

public servant was insufficient where defendant only input false

data concerning an auto accident on a computer terminal in a
police department, without knowing or having any reason to know

that a department technician would screen the information before

forwarding the accident report to another database.
COLORADO COURT OF APPEALS                                     

Court of Appeals No. 15CA0714
Arapahoe County District Court No. 13CR691
Honorable Marilyn Leonard Antrim, Judge


The People of the State of Colorado,

Plaintiff-Appellee,

v.

Mike Tee,

Defendant-Appellant.


             JUDGMENT AFFIRMED IN PART, VACATED IN PART,
                AND CASE REMANDED WITH DIRECTIONS

                                  Division III
                           Opinion by JUDGE WEBB
                         Richman and Fox, JJ., concur

                          Announced June 14, 2018


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

Douglas K. Wilson, Colorado State Public Defender, Dayna Vise, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant
¶1     After hearing evidence involving identity theft and insurance

 fraud, a jury convicted Mike Tee of multiple charges, including two

 counts of attempting to influence a public servant. Specifically, he

 contends that

      because the indictment received by the district court did not

       contain the signature of the grand jury foreperson, it did not

       confer jurisdiction and all charges must be dismissed;

      because two jurors engaged in predeliberation, he is entitled to

       a new trial;

      because insufficient evidence supported the two convictions

       for attempting to influence a public servant, these convictions

       must be vacated; and

      the mittimus must be corrected to conform to the sentence the

       trial court announced at the sentencing hearing, despite a

       lengthier sentence that the court imposed later.

¶2     The Attorney General concedes, and we agree, that the

 mittimus must be corrected. As to the other three contentions, we

 conclude that the signature of the foreperson need not be provided

 to the district court; defense counsel waived any error as to

 predeliberation; and the evidence was sufficient to support one

                                    1
 count of attempting to influence a public servant, but insufficient as

 to the other count. Therefore, we vacate the judgment as to one

 count of attempting to influence a public servant (Count 24) and

 remand to correct the mittimus.

     I. The Grand Jury Indictment Conferred Jurisdiction on the
                  Arapahoe County District Court

¶3     Tee first contends “the indictment returned by the grand jury

 was not signed by the foreman and, therefore, failed to invoke the

 court’s jurisdiction because it did not comply with the substantial

 requirements of [section] 16-5-201,” C.R.S. 2017. That section

 provides: “Every indictment shall be signed by the foreman of the

 grand jury returning it and by the prosecuting attorney, his or her

 assistant, or his or her deputy.” Tee also relies on Crim. P. 7(a)(1):

 “An indictment shall be a written statement presented in open court

 by a grand jury to the district court which charges the commission

 of any crime by an alleged offender.” He does not challenge the

 indictment for failure to satisfy any of the requisites set out in Crim.

 P. 7(a)(2).




                                    2
¶4    Tee correctly points out that the appellate record initially

 certified included pages one through thirty-five of the indictment,

 which ended with the following:

           The 2012-2013 Colorado Statewide Grand
           Jury presents the Indictment contained within
           and the same is hereby ORDERED FILED this
           28 day of March, 2013.

           Pursuant to § 13-73-107, C.R.S., the Court
           designates Arapahoe County, Colorado as the
           county of venue for the purposes of trial.

           Arrest Warrants are Issued for:

           Mike Tee . . . .

 The signature of the foreperson was not included.

¶5    According to the Attorney General, this occurred because the

 district court for the City and County of Denver, where the grand

 jury sat, ordered that all information “that might identify Statewide

 Grand Jurors shall be deemed confidential, not to be released to

 anyone other than the prosecutors and/or investigators with the

 Attorney General’s Office without written authorization from the

 Court.” See § 13-73-103, C.R.S. 2017 (“The court . . . shall enter an

 order to preserve the confidentiality of all information that might

 identify state grand jurors when reasonably necessary to protect the

 state grand jury process or the security of the state grand jurors.”).

                                    3
¶6    Still, we ordered the Arapahoe County District Court to

 supplement the record — under seal — with a complete indictment.

 The court clerk responded with an affidavit attesting that the

 Denver District Court had sent only these pages.1

¶7    Tee clarified at oral argument that the problem is not whether

 the foreperson signed the indictment, but whether the allegedly

 incomplete copy of the indictment filed in the Arapahoe County

 District Court gave that court jurisdiction. We discern no

 jurisdictional defect for two reasons.




 1 Upon receipt of this affidavit, we issued a similar order to the
 Denver District Court, which provided, also under seal, pages
 showing the signature of the grand jury foreperson for each count.
 See, e.g., People v. Bergen, 

 (Colo. App. 1994)
 (“Our review of the sealed grand jury records and the affidavits
 shows support for the trial court’s determination that [the grand
 jurors rendered a determination as to probable cause based upon
 the investigation]; therefore, we decline to disturb it on appeal.”);
 see also People v. Dist. Court, 

, 402, 

,
 493 (1980) (“After a careful review of the sealed record containing
 the transcript of the grand jury colloquy, we have concluded that
 ordering the disclosure of the colloquy to defense counsel was an
 abuse of discretion. Although the confidential nature of the
 colloquy forecloses a detailed explanation, the transcript contains
 no statements by the district attorney that would constitute
 potential grounds for establishing the absence of probable cause to
 indict the defendant because of improper conduct of the district
 attorney.”).

                                    4
¶8    First, “a grand jury indictment constitutes official action

 accusing an individual of a specific violation of the law, for which

 the individual may be tried and subsequently convicted.” People v.

 Thompson, 

 (Colo. 2008); see § 16-1-104(11),

 C.R.S. 2017 (defining “indictment” as “a written statement,

 presented by a grand jury to the district court, which charges the

 commission of a crime by an alleged offender”). And under section

 13-73-107(1), C.R.S. 2017, “[a]ny indictment by a state grand jury

 shall be returned to the chief judge who is supervising the statewide

 grand jury without any designation of venue.” See § 13-73-105,

 C.R.S. 2017 (“Judicial supervision of the state grand jury shall be

 maintained by the chief judge who issued the order impaneling

 such grand jury, and all indictments . . . made by such grand jury

 shall be returned to that judge.”). Thus, the requirement in Crim.

 P. 7(a)(1) that the indictment be “presented in open court by a

 grand jury to the district court which charges the commission of any

 crime” (emphasis added) applied to the Denver District Court.

¶9    Second, Tee cites no authority, nor have we found any,

 applying the requirements of Crim. P. 7(a)(1) to the district court

 that is designated “as the county of venue for the purposes of trial”


                                    5
  after the statewide grand jury indictment has been returned. And

  section 13-73-107(1), which provides that after an indictment is

  returned, “the chief judge shall, by order, designate any county in

  the state as the county of venue for the purpose of trial,” suggests

  otherwise.

¶ 10   In sum, we conclude that the Arapahoe County District Court

  had jurisdiction.

       II. Defense Counsel Waived a New Trial Based on Possible
                     Predeliberation by Two Jurors

¶ 11   Tee next contends the trial court “failed to adequately inquire

  into or address the fact the jurors were predeliberating.” He asserts

  that predeliberation constitutes either structural error or a denial of

  due process subject to constitutional harmless error review. Under

  either standard, he continues, all of the convictions must be

  reversed and the case remanded for a new trial.

¶ 12   The predeliberation concern arose when a victim advocate told

  the prosecutor, who then informed the trial court, that she had

  overheard two jurors discussing the case at lunch. The court took

  testimony from the victim advocate in the presence of the

  prosecutor and defense counsel. Next, the court questioned these



                                     6
  two jurors separately, also with both counsel present. Then the

  court read the burden of proof instruction to the entire jury.

¶ 13   According to the Attorney General, we should not review this

  contention because defense counsel waived it. Tee responds that

  waiver is inapplicable because “[t]he error was brought to the

  attention of the court by the prosecution and the trial court had the

  opportunity to address the issue.” But this response deals with

  preservation, not waiver. See, e.g., Berra v. Springer & Steinberg,

  P.C., 

 (Colo. App. 2010) (“[T]o preserve the issue

  for appeal all that was needed was that the issue be brought to the

  attention of the trial court and that the court be given an

  opportunity to rule on it.”); see also People v. Kadell, 

, ¶ 43 n.1 (J. Jones, J., concurring in part and dissenting in

  part) (“Simply put, because he didn’t draw the court’s attention to

  the issue, it’s not preserved.”). And the trial court had no reason to

  declare a mistrial after defense counsel expressly renounced that

  remedy.

                                 A. Law

¶ 14   Three familiar principles guide waiver analysis in criminal

  cases.


                                    7
        A “‘waived’ claim of error presents nothing for an appellate

         court to review.” People v. Bryant, 

, ¶ 13 n.2

         (quoting People v. Rodriguez, 

 (Colo. App.

         2008)). In other words, waiver “specifically removes claims

         from the trial court’s consideration.” 

 (citing Rodriguez, 

).

        Still, waiver requires “that the defendant intentionally

         relinquished a known right or privilege.” People v. Smith, 

; see People v. Kessler, 

         (Because “[d]efense counsel explicitly agreed that the specific

         evidence at issue was admissible . . . , Kessler, through his

         counsel, intentionally waived the particular point raised on

         appeal.”).

        And despite this high bar, “even fundamental rights can be

         waived, regardless of whether the deprivation thereof would

         otherwise constitute structural error.” Stackhouse v. People,

         

 (courtroom closure).

¶ 15     The Supreme Court has identified factors limiting waiver.

  “Whether a particular right is waivable; whether the defendant must

  participate personally in the waiver; whether certain procedures are

                                       8
  required for waiver; and whether the defendant’s choice must be

  particularly informed or voluntary, all depend on the right at stake.”

  United States v. Olano, 

 (1993).

¶ 16   As to these factors, Tee cites no authority, nor are we aware of

  any in Colorado or from the Supreme Court, holding that juror

  conduct which could constitute predeliberation is unwaivable;

  identifying any unique procedure that must be followed to waive

  predeliberation; or requiring a defendant’s informed and voluntary

  decision to waive predeliberation. Nor does Tee’s supplemental brief

  argue any of these factors.

¶ 17   Absent such authority, People v. Hambrick, 

 (N.Y. App. Div. 2012), is informative. There, defense counsel

  successfully moved for a mistrial because “several members of the

  jury had impermissibly discussed the specifics of the case and had

  potentially been biased by the predeliberation discussions.”

  

 On appeal from conviction at retrial, the defendant raised

  double jeopardy. In holding the claim to be “without merit” because

  defense counsel had sought the mistrial, the court explained that

  “the defendant’s personal consent to a mistrial was not necessary,




                                    9
  and his counsel’s decision to move for a mistrial was binding on the

  defendant.” Id.2

¶ 18    Tee should be equally bound by his counsel’s decision not to

  move for a mistrial. See People v. Greer, 

 (Ill.

  1964) (“The decision to abandon the motion for a mistrial and go

  ahead with the trial with the jurors that had already been chosen,

  with additional jurors to make a full panel, was voluntarily made by

  the defendant’s own attorney. The defendant is not now in a

  position to allege a failure on the part of the court to declare a

  mistrial.”).




  2 The federal circuits have adopted this view. See, e.g., United
  States v. Chapman, 

 (4th Cir. 2010) (“[D]ecisions
  regarding a mistrial are tactical decisions entrusted to the sound
  judgment of counsel, not the client.”); United States v. Burke, 

, 1324 (11th Cir. 2001) (The decision not to request a
  mistrial is a “tactical decision entrusted to defense counsel, binding
  the defendant even when the defendant expressed a contrary wish
  to his lawyer.”); United States v. Washington, 

, 723-24
  (8th Cir. 1999) (requesting a mistrial is a non-fundamental strategic
  decision); Watkins v. Kassulke, 

 (6th Cir. 1996)
  (Where “defense counsel consents as a matter of trial strategy to a
  mistrial, that consent binds the defendant . . . regardless of whether
  the defendant participates in the decision.”); Galowski v. Murphy,
  

 (7th Cir. 1989) (“The decision whether to move
  for a mistrial or instead to proceed to judgment with the expectation
  that the client will be acquitted is one of trial strategy.”).

                                     10
                               B. Analysis

¶ 19   The Attorney General argues that waiver applies because

  “[d]efense counsel did more than acquiesce to the trial court’s

  inquiries and resolution of the alleged predeliberation issue, he

  affirmatively approved the trial court’s line of questioning and

  actively participated in further instructing the jury to address his

  concerns.” According to the Attorney General, two lines of Colorado

  authority support this conclusion.

¶ 20   First, the Attorney General asserts that when defense counsel

  is an “active participant” with the trial court in matters involving

  the jury, such action “amounts to a waiver.” Valley v. People, 

, 

 (1968); see also People v. Tillery,

  

 (Colo. App. 2009) (holding that Tillery’s argument

  that the instruction was prejudicial because it referred to “the

  incident” was waived by his active participation in its wording), aff’d

  sub nom. People v. Simon, 

 (Colo. 2011).3


  3 Similar language has been employed when finding waiver in other
  contexts. See, e.g., People v. Mascarenas, 

 (Colo.
  1983) (“[T]he defendant effectively waived his rights to final
  disposition within the ninety-day statutory limitation period [under
  the Uniform Mandatory Disposition of Detainers Act] by his active
  participation in the trial setting delays and in his agreement to the

                                    11
¶ 21   Second, the Attorney General relies on People v. Rediger, 

, ¶ 59 (Rediger I), aff’d in part and rev’d in part, 

  (Rediger II). There, defense counsel told the trial court that he had

  read the instructions and was “satisfied.” Rediger I, ¶ 47. On this

  basis, the division concluded that instructional error had been

  waived.

¶ 22   But the supreme court reversed in part, holding that counsel’s

  colloquy with the court did not show either actual knowledge or

  intentional relinquishment of the defendant’s right to have the jury

  correctly instructed on the elements of the offense in the

  indictment. Rediger II, ¶ 45. Because the supreme court’s decision

  was announced after briefing had closed in this case, we requested

  supplemental briefs on waiver. Having reviewed that briefing, we

  draw two conclusions. First, Rediger II does not categorically

  preclude finding a waiver based on defense counsel’s active

  participation in trial court action that appellate counsel challenges

  on appeal, although it may sometimes require a closer look at




  appropriate dates.”); see also People v. Arledge, 

  (Colo. 1997) (“[A]ctive participation by the defendant in such delay
  constitutes waiver” of the right to speedy trial.).

                                    12
  exactly what counsel did. Second, on the facts presented,

  Stackhouse is more illuminating than is Rediger II.

¶ 23   Beginning with active participation, in Rediger II the trial court

  asked defense counsel a single question; counsel answered with a

  single sentence. By contrast, the record before us shows that the

  trial court and defense counsel were involved in an ongoing,

  interactive exchange. Thus, the record supports applying cases

  such as Valley, as the Attorney General asserts.

¶ 24   Even so, after Rediger II, is the waiver analysis now more

  complex? True, the supreme court said nothing about this line of

  authority, probably because the record did not show active

  participation by defense counsel in the flawed jury instruction,

  which appeared to have been prepared by the prosecution. Rediger

  II, ¶ 8. Still, the Rediger II court’s emphasis on intentional

  relinquishment of a known right requires further scrutiny. In other

  words, after Rediger II, would trial counsel’s active participation

  always prevent appellate counsel from identifying an error and

  arguing that it had somehow escaped trial counsel’s attention?

¶ 25   Start with a known right. After all, only a right that is known

  could be intentionally relinquished.


                                     13
¶ 26   The Rediger II court did not define “known.” Defense counsel

  acknowledged having read the instructions. So, what more than

  knowledge presumed from the circumstances must be present

  before a right is known? Comparing waiver to invited error suggests

  one answer.

¶ 27   Like waiver, invited error bars relief on direct appeal. See

  People v. Novotny, 

 (noting “the specter of invited

  error, which precludes appellate review”). However, “although

  invited error in most cases will result from defense counsel’s

  inadvertence or negligence, it is the defendant who must bear the

  stigma of a conviction and the burden of prison time; accordingly,

  application of the plain error doctrine, rather than the invited error

  doctrine,” is appropriate. People v. Stewart, 

 (Colo.

  2002). See also People v. Gross, 

 (“The attorney

  incompetence exception does not apply to deliberate, strategic acts

  of defense counsel but rather to inadvertent errors or oversights.”).

  As the division explained in People v. Perez-Rodriguez, 

, “[t]o determine whether the statement ‘no objection’ or

  even silence should be characterized as either deliberate or




                                    14
  inadvertent, it is necessary to consider the objection or silence in

  the context of its circumstances.”

¶ 28   Although Rediger II did not cite Stackhouse, looking at

  Stackhouse through the prism of inadvertence offers a path forward.

  There, the trial court closed the courtroom during a portion of voir

  dire. Of course, defense counsel was present. Counsel failed to

  object and voir dire continued. Still, the court found a waiver.

  Stackhouse, ¶ 17.

¶ 29   A principled line between these cases would be that in Rediger

  II, merely reading the instructions does not compel the conclusion

  that counsel recognized prejudice to the defendant’s right to be tried

  on the statutory elements under which he had been charged

  because the elements on the instructions and those on the

  information came from different subsections of the same statute.

  The explanation could have been inadvertence, as the difference in

  elements was not striking. Contrasting Stackhouse, counsel’s mere

  presence when the trial court directed that the courtroom be closed

  permits no reasoned doubt that counsel recognized the defendant’s

  public trial right was being impaired. See Webster’s Third New




                                    15
  International Dictionary 1252 (2002) (defining “know” as “to

  recognize the quality of: see clearly the character of”).

¶ 30   After drawing this line here, the record compels the conclusion

  that because defense counsel recognized the predeliberation

  concern, this case falls on the Stackhouse side of that line. The

  trial court asked the victim advocate, “Do you think [the two jurors]

  were discussing the ultimate outcome of the case?” After the

  advocate answered, defense counsel asked her, “[O]ne thing that I

  would be concerned about . . . is, did you think from what you

  heard from the jurors that there was a decision on their part that

  they had heard enough?” The advocate answered, “I really don’t. I

  honestly and truly don’t.” Then defense counsel said, “Nothing

  else.”

¶ 31   In Stackhouse, ¶ 5, our supreme court affirmed “the court of

  appeals’ holding that Stackhouse waived his right to public trial

  during voir dire by not objecting to the trial court’s known closure.”

  (Emphasis added.) Likewise in this case, everyone involved

  recognized the specter of predeliberation. And just as Stackhouse,

  id. at ¶ 16, presumed counsel’s knowledge of the proper procedure

  to address a courtroom closure, we presume counsel’s awareness


                                     16
  that juror predeliberation would raise a constitutional concern.

  People v. Flockhart, 

 (An “erroneous

  pre-deliberation instruction may prejudice a defendant’s

  constitutional right to a fair trial.”).

¶ 32   Then consider intentional relinquishment.

¶ 33   After the trial court had questioned the first of the two jurors,

  defense counsel told the court: “I didn’t hear anything at this point

  that would make me want to move for a mistrial based on the fact

  that the jurors looked engaged in a deliberate guilt or not guilt

  process to me.” Thus, counsel also recognized the nexus between

  the disease — “[pre]deliberate guilt or not guilt” — and the possible

  cure — “a mistrial.”

¶ 34   For the second juror, defense counsel asked the court “if we

  have questions of this juror, can we approach and tell you that?”

  The court said yes. And after the court questioned the second

  juror, counsel told the court “for the record . . . I would have said or

  asked questions very much along the same lines . . . .” Tee does not

  assert, nor does our review of the record disclose, anything in the

  second juror’s answers that should have changed counsel’s earlier

  mistrial calculus. To the contrary, the second juror assured the


                                       17
  trial court that she had not discussed Tee’s guilt, that she

  understood the relative burdens for the prosecution and the

  defense, and that she had not reached “a final conclusion in this

  matter.” Thus, even more so than in Stackhouse, ¶ 16, allowing Tee

  to “seek invalidation of an adverse verdict” on which these two

  jurors deliberated “would encourage gamesmanship.”

¶ 35   Finally, counsel asked the court to read the jury instruction on

  burden of proof. The court responded that it “would rather read it

  to the whole jury.” Counsel clarified “[t]hat’s what I meant.” After

  the jury had been reconvened, the court did so. Counsel sought no

  further relief.

¶ 36   The totality of defense counsel’s statements stand in marked

  contrast to our supreme court’s observation in Rediger II, ¶ 42, that

  “[t]he record before us reveals no evidence, either express or

  implied, that Rediger[’s counsel] intended to relinquish his right to

  be tried in conformity with the charges set forth in his charging

  document when he generally acquiesced to the jury instructions,”

  nor that “Rediger knew of the discrepancy between the People’s

  tendered jury instructions and the charging document,” id. at ¶ 43.




                                    18
¶ 37   Opposite to what occurred in Rediger II, here the dialogue

  between defense counsel and the trial court over this issue went far

  beyond a “rote statement that [counsel] is not objecting . . . .”

  United States v. Zubia-Torres, 

 (10th Cir. 2008)

  (“The record is simply devoid of any evidence that defense counsel

  knew of the argument or considered making it.”), cited with

  approval in Rediger II, ¶ 45; see also United States v. Perez, 

 (9th Cir. 1997) (perceiving no waiver when the

  record revealed “that neither defendants, the government, nor the

  court was aware” of the issue raised on appeal), cited with approval

  in Rediger II, ¶ 42.

¶ 38   Despite all this, Tee’s supplemental brief asserts that “[t]here

  would be no reason, had counsel been aware of the error, not to ask

  for a mistrial or to ask the court to address the fact the jurors were

  predeliberating.” This assertion misses the mark in two ways.

¶ 39   First, it assumes that inquiry into counsel’s strategic purpose

  plays any role in evaluating an affirmative waiver. But Tee cites no

  authority, nor are we aware of any in Colorado, tempering the effect

  of a specific, affirmative waiver based on possible lack of a strategic

  purpose. As the division explained in Perez-Rodriguez, ¶ 25,


                                     19
  “[i]nvited error is sometimes referred to as a strategic error. But

  this does not mean that the ‘strategy’ must be competent or well

  planned. It simply means that the action that results in invited

  error must be deliberate rather than inadvertent.”

¶ 40   True, in Stackhouse, ¶ 15, our supreme court observed, “there

  are sound strategic reasons to waive the right to a public trial, as is

  particularly apparent in the context of Stackhouse’s jury selection

  for his trial on charges of sexual assault on a minor.” But

  Stackhouse involved an implied waiver based on counsel’s silence;

  Tee’s counsel expressly renounced a mistrial.

¶ 41   Second and more importantly, this assertion ignores the

  possibility that counsel’s strategic purpose was to preserve his

  credibility by choosing to disclaim an issue that was a sure loser.

  See People v. McCoy, 

, ¶ 99 (Webb, J., specially

  concurring) (“[C]ounsel may have decided that an unsupported

  statutory sufficiency argument would probably be unsuccessful and

  raising it would undercut counsel’s credibility.”) (cert. granted in

  part Oct. 3, 2016). Because the trial court developed the issue, the




                                     20
  court would have been entitled to expect a candid response.4

  “Forfeiture takes place when counsel or a defendant negligently

  bypasses a valid argument.” United States v. Anderson, 

 (7th Cir. 2010) (emphasis added) (cited with approval in

  Perez-Rodriguez, ¶ 27).

¶ 42   In sum, and notwithstanding the “presumption against

  waiver,” Rediger II, ¶ 46 (quoting People v. Curtis, 

  (Colo. 1984)), defense counsel’s affirmative statements constitute a

  waiver. So, as to Tee’s contention that predeliberation constituted

  structural error or a due process violation entitling him to a new

  trial, we have nothing to review. See United States v. Montoya, 

 (11th Cir. 1986) (stating that, absent exceptional

  circumstances, defendant’s withdrawal of motion for mistrial left

  “nothing for this court to review”).

  III. The Evidence Was Insufficient as to One Count of Attempting to
                      Influence a Public Servant

¶ 43   Tee was convicted of two counts of attempting to influence a

  public servant based on evidence that he made allegedly false

  reports of car accidents. As to the first report, he provided

  4Of course, whether counsel had such a purpose could be explored
  under Crim. P. 35(c) as an indication of ineffectiveness.

                                     21
  information in person to a police officer who created a report based

  on what Tee had told him; for the other report, he filled in an

  accident report form on a computer terminal at a kiosk in the police

  department. We conclude that the evidence was sufficient to

  support the conviction for attempting to influence a public servant

  as to the police officer, but not the conviction based on the form

  filled in at the kiosk.

                      A. Standard of Review and Law

¶ 44   A challenge to the sufficiency of the evidence requires an

  appellate court “to determine whether the relevant evidence, both

  direct and circumstantial, when viewed as a whole and in the light

  most favorable to the prosecution, is substantial and sufficient to

  support a conclusion by a reasonable person that the defendant is

  guilty of the crime charged beyond a reasonable doubt.” People v.

  Moore, 

 (Colo. App. 2009). The prosecution

  must be given the benefit of every reasonable inference that might

  fairly be drawn from the evidence. People v. Carrasco, 

 (Colo. App. 2003). A conviction will not be set aside merely

  because the jury could have reached a different conclusion based

  on the evidence. People v. Fuller, 

 (Colo. 1990).


                                    22
  However, if the appellate court concludes that evidence was

  insufficient as to a count, then the judgment of conviction must be

  reversed and that count cannot be retried. See People v. Lybarger,

  

 (Colo. 1985) (“[I]f the evidence is insufficient to

  support the conviction, the retrial of the defendant on the same

  charge would constitute a violation of the constitutional guarantee

  against double jeopardy.”).

¶ 45   Under section 18-8-306, C.R.S. 2017,

             [a]ny person who attempts to influence any
             public servant by means of deceit or by threat
             of violence or economic reprisal against any
             person or property, with the intent thereby to
             alter or affect the public servant’s decision, vote,
             opinion, or action concerning any matter which
             is to be considered or performed by him or the
             agency or body of which he is a member,
             commits a class 4 felony.

  (Emphasis added.) In supplemental briefs on this statute, the

  parties agreed that it is a specific intent crime. So do we.

  ¶ 46 Section 18-8-306 is “aimed at attempts to influence public

  servants in their official capacities to improperly alter or affect the

  performance of their official duties.” People v. Beck, 

 (Colo. App. 2008), overruled on other grounds by People v.

  Molina, 

. It “encompasses any employee of the


                                     23
  government and even includes non-employees performing

  government functions.” People v. Sena, 

.

  Section 18-8-306 “requires the prosecution to prove that the

  defendant acted with the specific intent to influence a public

  servant[].” People v. Janousek, 

 (Colo. 1994).

  But “whether the public servant was actually influenced by the

  defendant’s attempts is not an element of the crime.” Sena, ¶ 16.

                               B. Analysis

                             1. Police Officer

¶ 47   Tee contacted the Aurora Police Department, claiming that his

  car had been struck in a hit-and-run accident. The responding

  officer testified that he met with Tee. Then, based on the

  information Tee had provided, the officer prepared and filed an

  accident report. That report was later offered into evidence as part

  of Farmers Insurance Company’s file on Tee’s insurance claim.

¶ 48   Tee argues that the evidence was insufficient to show he

  attempted to influence the police officer because “[t]he officer

  testified he does not do anything or make any decisions.” But the

  record shows that Tee intended “to alter or affect the public

  servant’s . . . action concerning any matter which is to be


                                    24
  considered or performed by him.” § 18-8-306. Specifically, the

  responding officer testified that writing police reports is an official

  function that he performs. Then he described his actions based on

  Tee having reported the accident to him:

             Q: So based on what he told you, you prepared
             your report?

             A: I did.

             Q: Did you file this report?

             A: I did.

  See, e.g., People v. Van De Weghe, 

 (holding that the

  defendant attempted to influence a public servant when he provided

  false information to a police officer during a traffic stop); see also

  Sena, ¶ 16 (“For the People to prove that defendant intended to alter

  [the officer’s] actions, the prosecution must only provide sufficient

  evidence for a rational trier of fact to conclude that defendant

  anticipated a different result if he had given” true information.).

¶ 49   Viewing this evidence in a light favorable to the prosecution,

  as we must, it supports the conviction for attempting to influence a

  public servant beyond a reasonable doubt.




                                     25
                                2. Kiosk Report

¶ 50     Tee argues that the evidence does not show his act “of filing an

  online accident report at . . . [the] kiosk was done with the specific

  intent to alter or affect a public servant’s decision,” as required by

  section 18-8-306. We agree.

¶ 51     The prosecution called a front desk technician at the police

  department to testify about the accident report that Tee had filled

  in. She explained that for such an online accident report, which

  includes both forms filled in on a home computer and those

  completed on a terminal at a kiosk:

        “The citizen would come in, we would direct them to the kiosk

         that we have in the lobby to fill out an accident report. And if

         they had any questions, then we would go out and assist them

         in filling out the report.”

        When the citizen was done filling out the report, he or she

         “would come back up to the front desk and they would get

         their case number, and then that would be all that they

         needed to do.”

  She also testified about performing her duties:




                                       26
        “Once the citizen enters the report, we as lead technicians

         later — we go in and review the report to make sure that the

         location is in the city ordinance . . . and that some of the

         information is filled out.”

        Citizens “can come up to the front desk window if they have

         some kind of difficulty working on the computer.”

        “Usually we’ll go into the system if [the citizen] ask[s] for [the

         report] for their insurance. We’ll print it out for them.”

         She explained that when using this process,

               [m]ost people think that when they come in to
               do an accident report they’re going to talk to
               me to do the accident report, not to be referred
               to a kiosk. So that’s — we give people the
               option. They can do either or. Or they can go
               home and they can do it on their own
               computer if they’re more comfortable with that.

  Finally, she added that after the report is entered, “[t]he information

  gets forwarded to another computer system. So it’s kind of like the

  online reporting system is its own program itself. And once it’s

  reviewed, then there’s a bridge that goes to another system.”

¶ 52     But she did not recall anything about Tee — such as whether

  he “attempted to talk” to her or gave her “information about . . . the

  alleged accident.” Nor did she testify that he had caused the


                                       27
  system to print out a report. In anticipation of testifying, she had

  printed out the accident report that the prosecution introduced into

  evidence from the police department’s online reporting system.

¶ 53    According to the Attorney General, this testimony sufficed to

  prove that Tee “intended his representations about a supposed

  accident at the . . . city kiosk to influence the public servant on site

  . . . to provide him with an official accident report.” True, the

  technician testified that she would have “done something different if

  [she] knew the person wasn’t giving accurate information in that

  report.” But this testimony fails to show that Tee had any

  interaction with the technician, much less that he knew the

  technician needed to approve the report, after he filled in the form

  using the terminal at the kiosk. Simply put, unless he knew of the

  technician’s involvement, he could not have intended to influence

  her actions. See People v. Prante, 

, 

 (1972) (stating that assault on a police officer requires

  proof of intent to cause bodily injury and knowledge that the victim

  is an officer).

¶ 54    Colorado cases addressing sufficiency of the evidence under

  section 18-8-306 generally show a link between the defendants and


                                     28
  the public servants whom they intended to influence. See, e.g.,

  Beck, 

 (the defendant provided false identifying

  information to a police officer); see also People v. Taylor, 

 (Colo. App. 2006) (“[The] defendant caused a false written

  instrument to be delivered to a public servant with the intent of

  altering the public servant’s decision relating to the termination of

  defendant’s liberty interest.”), abrogated on other grounds by People

  v. Fortson, 

; People v. Schupper, 

  (Colo. App. 2006) (The defendant “used ‘deceit’ in the form of false

  representations on his application in order to influence a public

  servant with the intent to alter or affect his or her decision to

  appoint counsel.”).

¶ 55   Still, in People v. Montante, 

, on which the

  Attorney General primarily relies, that link was less clear. There,

  the defendant, a physician, was convicted of attempting to influence

  a public servant. The evidence showed that he had written false

  information on a physician certification form, which he then gave to

  an undercover officer masquerading as a patient who supposedly

  needed the certification to obtain a medical marijuana identification




                                     29
  card from the Colorado Department of Public Health and

  Environment.

¶ 56   The division explained that the physician certification “is part

  of the application that an applicant must submit to the Colorado

  Department of Public Health and Environment.” 

 And these

  alleged false statements “constituted an attempt to influence, by

  means of deceit, a public official at the Department, with the intent

  thereby to affect the decision to issue [the patient] a medical

  marijuana identification card.” Id. at ¶ 5.

¶ 57   Although the division did not address sufficiency, it analyzed

  whether section 18-8-306 provided sufficient notice to the

  physician. It concluded that the defendant “was on fair notice that

  the making of false representations with the expectation that the

  Physician Certification would be submitted to the Department

  would constitute the offense of attempt to influence a public

  servant.” Id. at ¶ 46.

¶ 58   This conclusion survives scrutiny because article XVIII,

  section 14(3)(c) of the Colorado Constitution, provides:

            Within thirty days of receiving the information
            referred to in subparagraphs (3)(b)(I)-(IV), the
            state health agency shall verify medical


                                    30
            information contained in the patient’s written
            documentation. The agency shall notify the
            applicant that his or her application for a
            registry identification card has been denied if
            the agency’s review of such documentation
            discloses that: the information required
            pursuant to paragraph (3)(b) of this section
            has not been provided or has been falsified;
            the documentation fails to state that the
            patient has a debilitating medical condition
            specified in this section or by state health
            agency rule; or the physician does not have a
            license to practice medicine issued by the state
            of Colorado. Otherwise, not more than five
            days after verifying such information, the state
            health agency shall issue one serially
            numbered registry identification card to the
            patient . . . .

 (Emphasis added.) Thus, a fair inference could be made that the

  physician knew his false statements written on the certification

  would influence a public servant’s decision to issue a medical

  marijuana identification card. See Sena, ¶ 16 (“Intent can rarely be

  proven other than through circumstantial or indirect evidence.”);

  People v. Hayward, 

 (Colo. App. 2002) (“[E]very

  person is generally presumed to know the law . . . .”).

¶ 59   By contrast, in the case before us, the prosecution did not

  present any evidence showing that Tee knew the technician — or

  anyone else, for that matter — would screen the information that he



                                    31
  input at the kiosk and then approve the report. Nor does the

  Attorney General direct us to any statute describing human

  involvement in this process. And unlike the hard copy physician

  certification and registry card at issue in Montante, filling in a form

  on a computer terminal suggests an entirely automated process.

  Cf. People v. Rice, 

 (Colo. App. 2008) (“When

  the computer system determines a claimant is eligible for

  unemployment benefits, a computer prints a check that is

  automatically sent to the claimant. Typically, an eligible claimant

  completes a claim and receives a check without interacting with a

  person.”).

¶ 60   At most, the record shows that Tee filled in false information

  on a report form using the terminal at the police department kiosk.

  Mere false reporting, however, while prohibited by section

  18-8-111(1)(d), C.R.S. 2017, “is not a specific instance of attempt to

  influence a public servant.” People v. Blue, 

  (Colo. App. 2011). Indeed, “[t]he attempted influence offense can

  occur without any false reporting at all.” 

¶ 61   In the end — even given the high standard for sufficiency of

  the evidence claims — we cannot say that the evidence was


                                     32
  sufficient to prove beyond a reasonable doubt Tee’s second

  conviction for attempt to influence a public servant.

                  IV. The Mittimus Must Be Corrected

¶ 62   The Attorney General concedes, and we agree, that the trial

  court violated Tee’s double jeopardy rights when it orally

  announced sentences totaling twelve years, but then the mittimus

  showed a total sentence of eighteen years. As Tee correctly points

  out, some of his concurrent sentences were improperly changed to

  consecutive sentences; and the mittimus listed the first sentence as

  four years, rather than the three-year term announced by the trial

  court. See People v. Sandoval, 

 (Colo. App.

  1998) (“Although a court may correct an illegal sentence without

  implicating double jeopardy concerns, it may not increase a lawful

  sentence after the defendant has begun serving it.”) (citation

  omitted).

¶ 63   Everyone also agrees that the mittimus incorrectly shows a

  conviction on Count 5, which the trial court dismissed on Tee’s

  motion for judgment of acquittal.

¶ 64   Thus, we remand for the trial court to correct the mittimus to

  reflect the sentence announced, to remove the reference to


                                      33
  conviction on Count 5, and to vacate the sentence imposed on

  Count 24.

                            V. Conclusion

¶ 65   The judgment is vacated as to Count 24 and otherwise

  affirmed. The case is remanded with directions to correct the

  mittimus.

       JUDGE RICHMAN and JUDGE FOX concur.




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