People v. Hoggard

COLORADO COURT OF APPEALS 2017COA88

Court of Appeals No. 14CA1393
Douglas County District Court No. 13CR145
Honorable Paul A. King, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Shawna Lee Hoggard,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division VI
Opinion by JUDGE WELLING
Furman and Terry, JJ., concur

Announced June 29, 2017

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

Douglas K. Wilson, Colorado State Public Defender, Meghan M. Morris, Deputy
State Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 During the course of a heated child-custody dispute,

defendant Shawna Lee Hoggard forwarded to the court-appointed

child and family investigator (CFI) a chain of e-mails between her

and her ex-husband. Hoggard allegedly falsified that e-mail chain

by adding five sentences that made it appear that her ex-husband

had threatened her. As a result of that alleged falsification,

Hoggard was charged with (and ultimately convicted of) second

degree forgery and attempt to influence a public servant. Hoggard

appeals those convictions.

¶2 On appeal, Hoggard contends that the jury was erroneously

instructed on both charges. First, she contends that the trial court

constructively amended the second degree forgery charge by

instructing the jury on the uncharged and more serious offense of

felony forgery. Second, she contends that the trial court erred in its

instruction on attempt to influence a public servant by instructing

the jury that the “intent” element applied only to one element of the

offense, when, in fact, the intent element applies to two additional

elements of the offense as well.

¶3 Hoggard acknowledges that she did not raise either of the

alleged errors that she identifies on appeal during trial, but

1
contends that those instructional errors require reversal of her

convictions as plain error. The People contend that appellate review

is entirely barred because Hoggard either invited the error or waived

her right to review by not objecting at trial when given the

opportunity to do so. The People further argue that even if we

conclude that appellate review is appropriate, the instructions do

not merit reversal under the plain error standard.

¶4 We reject the People’s argument that the invited error or

waiver doctrines bar appellate review under the circumstances of

this case and, instead, conclude that the instructional errors are

subject to plain error review. We further conclude that the trial

court committed obvious instructional error in both instances. But

we disagree that the trial court’s error as to the second degree

forgery charge effected a constructive amendment of that charge or

constituted plain error. We finally conclude that there is no

reasonable probability that the trial court’s failure to instruct the

jury on the required mental state for each element of the attempt to

influence a public servant charge contributed to Hoggard’s

conviction of that offense and, therefore, was not plain error. We

affirm.

2
I. Background

¶5 In the course of her investigation, the CFI received an e-mail

from Hoggard forwarding a chain of what purported to be prior

correspondence between her and her ex-husband. The forwarded

e-mail chain included a threat ostensibly made by Hoggard’s

ex-husband. The CFI forwarded the e-mail chain to Hoggard’s

ex-husband with the threatening language highlighted and asked

what his intent was in writing the e-mail. He responded that he did

not write the threatening portion of the e-mail. He sent the CFI a

copy of what he said was the original e-mail, which did not contain

the threatening language. Hoggard’s ex-husband then contacted

the police to report that an e-mail in his name had been falsified.

¶6 Hoggard provided the investigating police officer with access to

her e-mail account, including a folder of correspondence with her

ex-husband. The officer found a version of the e-mail identical to

that which had been forwarded to the CFI, except that it did not

include the threatening language. But when the officer accessed

Hoggard’s sent folder, he found the version of the e-mail containing

the threatening language.

3
¶7 Hoggard was charged with attempt to influence a public

servant, a class 4 felony, and second degree forgery, a class 1

misdemeanor.

¶8 As discussed at greater length below, the prosecutor tendered

to the court an instruction for second degree forgery that tracked

the elements of felony forgery and an instruction for attempt to

influence a public servant that did not set the mens rea element of

intent out as a separate element. At the jury instruction

conference, neither side requested any changes to the instructions

tendered by the prosecution.

¶9 Hoggard appeals both convictions based on independent

contentions of unpreserved instructional error.

II. Reviewability of Instructional Error

¶ 10 The People argue that, as a threshold matter, the doctrines of

invited error and waiver preclude appellate review of Hoggard’s

instructional error claims. The People contend that defense counsel

approved the disputed jury instructions, thereby either inviting the

errors of which Hoggard now complains or waiving any right to

appellate review of the asserted instructional errors. We disagree.

4
A. Invited Error

¶ 11 The invited error doctrine is premised on “the rule that a party

may not complain on appeal of an error that [s]he has invited or

injected into the case.” People v. Zapata, 779 P.2d 1307, 1309

(Colo. 1989). The doctrine applies “where [a] party expressly

acquiesces to conduct by the court or the opposing party,” Horton v.

Suthers, 43 P.3d 611, 619 (Colo. 2002), and precludes appellate

review of instructional error if that error was “injected by the

defendant as a matter of trial strategy,” Zapata, 779 P.2d at 1309.

Invited error may also be found where an “omission [by counsel] is

strategic.” People v. Stewart, 55 P.3d 107, 119 (Colo. 2002). The

invited error doctrine, however, “does not preclude appellate review

of errors resulting from attorney incompetence” or from

inadvertence. People v. Gross, 2012 CO 60M, ¶ 9 (citing Stewart,

55 P.3d at 119).

¶ 12 We conclude that defense counsel’s failure to object to the

instructional errors does not amount to invited error.

¶ 13 With respect to the jury instruction on the charge of attempt

to influence a public servant, the crux of Hoggard’s defense to that

charge was that she did not act with the intent necessary to satisfy

5
the “attempt[] to influence a public servant” and “by means of

deceit” elements. She asserts that the instruction is erroneous

because it did not specify the culpable mental state required for

those very elements. Given the juxtaposition between trial strategy

and the asserted error in the instruction, we discern no plausible

strategic motive for defense counsel’s failure to object, and,

therefore, conclude that counsel’s failure was an oversight, not a

strategy. See Stewart, 55 P.3d at 119 (finding no invited error

based on, inter alia, “the heavy reliance [defendant] placed on [a]

theory during trial”). Thus, invited error does not apply here.

¶ 14 As to the jury instruction on second degree forgery, we note

that the only distinction between the two offenses is that felony

forgery requires additional proof that the falsified document was of

a particular type. Because the type of document at issue (an

e-mail) was never contested at trial, we are persuaded that defense

counsel’s failure to object was, likewise, the result of inadvertence,

and that any error was not invited.

B. Waiver

¶ 15 The lines distinguishing the doctrine of invited error from that

of waiver are not precisely drawn. See People v. Rediger, 2015 COA

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26, ¶ 56 (cert. granted Feb. 16, 2016) (citing decisions treating

“implied waiver” as synonymous with “invited error”); People v.

Greer, 262 P.3d 920, 937 n.7 (Colo. App. 2011) (“Invited error is

akin to waived error.”). Although divisions of this court have

recently clarified the parameters of waiver, see People v. Rail, 2016

COA 24, ¶¶ 27-41; Rediger, ¶¶ 51-60, the precise contours of the

waiver doctrine in Colorado are not yet clearly settled.1 Each

division of this court that has analyzed the waiver issue, however,

has held that waiver requires some “affirmative conduct,” albeit to

varying degrees. See, e.g., People v. Yoder, 2016 COA 50, ¶ 10

(finding waiver where counsel objected to certain protective order

provisions, but stated that he had no objection to others); Rail,

¶¶ 36-37 (finding instructional error claim waived by “affirmative

conduct”); Rediger, ¶¶ 59-61. Although Rediger provides the closest

analogy to the circumstances of this case, we conclude that the

1 The Colorado Supreme Court has granted certiorari to review
whether the division in Rediger “erred in applying the waiver
doctrine as a complete bar to appellate review” on the basis of
defense counsel’s statement that counsel was “satisfied” with the
tendered jury instruction, but where defense counsel was unaware
that the tendered instruction erroneously included an uncharged
offense. See People v. Rediger, No. 15SC326, 2016 WL 1746021
(Colo. Feb. 16, 2016) (unpublished order).

7
facts before us are distinguishable, though not markedly, from

those presented in Rediger.

¶ 16 In Rediger, the court ordered the prosecutor to prepare

proposed jury instructions before trial, and ordered defense counsel

to file any objections within two days following the submission of

the prosecutor’s proposed instructions. Rediger, ¶ 45. The

proposed instructions included elemental instructions under a

different subsection of the statute than was charged in the

information. Id. Defense counsel did not object. Id. During jury

selection, the court described the charges against the defendant

using the erroneous instruction, and defense counsel did not object.

Id. at ¶ 46. After the close of evidence and following a jury

instruction conference, the court asked if defense counsel was

“satisfied with the instructions”; defense counsel responded, “Yes.

Defense is satisfied.” Id. at ¶ 47. The court then instructed the

jury using the erroneous instruction; again, defense counsel did not

object. Id. at ¶ 48. Based on these circumstances, the Rediger

division concluded that, through counsel’s “affirmative conduct,”

the defendant had waived any claim of instructional error or relief

based on any alleged constructive amendment. Id. at ¶ 64.

8
¶ 17 Here, the prosecution’s proposed jury instructions were

provided on the morning of the first day of trial, without the

opportunity to deliberate and object that had been present in

Rediger. Further, the errors in the instructions alleged by Hoggard

were not evident during the court’s initial reading of the charges to

the jury, again in contrast to Rediger. Finally, at the close of the

jury instruction conference, defense counsel merely said that there

was no objection from the defense, and did not affirmatively state

that the defense was “satisfied” with the instructions, as was relied

on in Rediger. Thus, Rediger is factually distinguishable, albeit

thinly.

¶ 18 To the extent, however, that a fair reading of Rediger’s waiver

analysis reaches the facts presented here — and there is a sound

argument that it does, see Rediger, ¶ 57 (noting that “[n]o Colorado

case has tempered waiver by distinguishing mere general

acquiescence from other forms of affirmative conduct”) — we

respectfully decline to follow it. This is a run-of-the-mill example of

an unpreserved jury instruction appeal: the prosecution tendered

instructions; the court asked if there were any objections; both

sides simply said, “no”; and the court gave the instructions as

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tendered. This is the heartland of plain error instructional review.

Indeed, if failing to object to an instruction is waiver and objecting

is preservation, the space remaining for plain error review in the

instructional error context diminishes nearly to the point of

vanishing.

¶ 19 Refusing to find waiver here does not give the defendant a free

pass for failing to timely object; she must still run the daunting

gauntlet of plain error review to obtain any relief. Moreover, finding

waiver here would have perverse consequences. If simply stating

“no objection” constitutes waiver barring even plain error review,

then counsel’s only readily apparent option to avoid waiver is to

take no position at all (or refuse to answer) when asked by the trial

court if there is any objection. The practical effect of not objecting

when invited to do so and taking no position is the same: conveying

to the court that no particularized objection comes to defense

counsel’s mind. But the latter creates an unnecessarily

antagonistic trial environment by obligating prudent defense

counsel to “take no position” each time the trial court invites input

but no specific objection comes to mind.

10
¶ 20 Thus, we hold that waiver does not bar appellate review under

the circumstances presented here. See People v. Perez-Rodriguez,

2017 COA 77, ¶ 28 (holding that counsel’s statement of “no

objection” in response to “the court’s inquiry [that] grouped all

twenty-four instructions” together “does not establish deliberate

conduct sufficient to support invited error or waiver”); see also

United States v. Harris, 695 F.3d 1125, 1130 n.4 (10th Cir. 2012)

(holding that defense counsel had not waived right to appeal by

replying, “No, Your Honor” when trial court asked whether there

were objections to jury instructions); United States v. Zubia-Torres,

550 F.3d 1202, 1207 (10th Cir. 2008) (“[T]here must be some

evidence that the waiver is knowing and voluntary, beyond

counsel’s rote statement that she is not objecting . . . .”). We next

turn to the merits of Hoggard’s appeal.

III. Second Degree Forgery Instructional Error

¶ 21 The trial court gave the jury the following elemental

instruction for second degree forgery:

The elements of the crime of Second Degree
Forgery are:

1. That the defendant,

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2. in the State of Colorado, at or about the
date and place charged,

3. with intent to defraud,

4. falsely made, completed, or uttered a
written instrument,

5. which was or purported to be, or which was
calculated to become or represent if completed
an instrument which does or may evidence,
create, or otherwise affect a legal right, interest,
obligation, or status; namely, an email.

(Emphasis added.)

¶ 22 While paragraphs one through four correctly describe the

elements of second degree forgery, paragraph five is an element of

felony forgery,2 not second degree forgery.

¶ 23 As relevant here, felony forgery is described as follows:

(1) 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:

...

2 The two offenses are “forgery,” which is a class 5 felony, and
“second degree forgery,” which is class 1 misdemeanor. For the
sake of clarity, we refer to the former as “felony forgery” in this
opinion.

12
(c) A deed, will, codicil, contract, assignment,
commercial instrument, promissory note,
check, or other instrument which does or may
evidence, create, transfer, terminate, or
otherwise affect a legal right, interest,
obligation, or status . . . .

§ 18-5-102(1)(c), C.R.S. 2016 (emphasis added).

¶ 24 Second degree forgery covers all other written instruments:

A person commits second degree forgery if,
with intent to defraud, such person falsely
makes, completes, alters, or utters a written
instrument of a kind not described in section
18-5-102 . . . .

§ 18-5-104(1), C.R.S. 2016 (emphasis added).

¶ 25 Under this comprehensive statutory scheme, it is always a

crime when a person “with intent to defraud, . . . falsely makes,

completes, alters, or utters a written instrument,” but it is only a

felony when the written instrument is of a type specified in section

18-5-102(1).

¶ 26 Hoggard argues that her conviction for second degree forgery

must be reversed because the trial court constructively amended

the second degree forgery charge when it gave an instruction that

tracked the elements of felony forgery. Although the trial court’s

forgery instruction was erroneous, we conclude that the erroneous

13
instruction neither effected a constructive amendment nor

constituted plain error. We, therefore, affirm the conviction.

A. There Was No Constructive Amendment

¶ 27 A constructive amendment occurs when a court “changes an

essential element of the charged offense and thereby alters the

substance of the charging instrument.” People v. Rodriguez, 914

P.2d 230, 257 (Colo. 1996). Constructively amending a charge

violates a defendant’s constitutional due process rights because it

subjects the defendant to the risk of conviction for an offense that

was not originally charged. Id. In other words, a constructive

amendment presents a risk that a defendant’s conviction is based

on conduct different than what was charged in the information.

See People v. Madden, 111 P.3d 452, 461 (Colo. 2005) (“To prevail

on a constructive amendment claim, a defendant must demonstrate

that either the proof at trial or the trial court’s jury instructions so

altered an essential element of the charge that, upon review, it is

uncertain whether the defendant was convicted of conduct that was

the subject of the grand jury’s indictment.” (quoting United States v.

Milstein, 401 F.3d 53, 65 (2d Cir. 2005))). Here, the erroneous jury

instruction did not result in the government proving conduct

14
different than what was charged; instead, the government

unnecessarily assumed the burden of proving everything that was

charged and more.

¶ 28 In People v. Riley, 2015 COA 152, a division of this court

considered an instructional error identical to the one presented

here and concluded that the trial court’s error constructively

amended the charge against the defendant. Id. at ¶ 15. In reaching

its conclusion, however, the Riley division specifically rejected the

People’s argument that the erroneous instruction did not effect a

constructive amendment and reversal was not warranted because

second degree forgery is a lesser included offense of felony forgery.

Id. at ¶¶ 15-16. That is where we part ways with the division in

Riley. See People v. Isom, 2015 COA 89, ¶ 17 (cert. granted on other

grounds Nov. 23, 2015) (A division of the court of appeals is not

bound to follow the precedent established by another division “if

our analysis leads us to a different result.”).

¶ 29 The Riley division relied exclusively on the “statutory

elements” test to conclude that second degree forgery is not a lesser

included offense of felony forgery. Riley, ¶ 16 (citing People in

Interest of H.W., III, 226 P.3d 1134, 1138 (Colo. App. 2009)); see

15
also § 18-1-408(5)(a), C.R.S. 2016. We agree with the Riley division

that second degree forgery is not a lesser included offense of felony

forgery under the “statutory elements” test. But the statutory

elements test is not the exclusive test for determining whether an

offense is a lesser included offense of another. See Reyna-Abarca v.

People, 2017 CO 15, ¶ 51 n.3 (recognizing that section 18-1-

408(5)(c) provides a distinct basis from the “strict elements” test for

determining whether an offense is a lesser included offense); People

v. Raymer, 662 P.2d 1066, 1069 (Colo. 1983) (“We neither held nor

implied . . . that subsection (5)(a) of section 18-1-408 constituted

the only test of a lesser included offense.”).

¶ 30 We decline to follow Riley because we conclude that second

degree forgery is a lesser included offense of felony forgery under

the test set forth in section 18-1-408(5)(c) — a test which the Riley

division was never asked to consider and did not address.

¶ 31 Section 18-1-408(5)(c) provides:

(5) A defendant may be convicted of an offense
included in an offense charged in the
indictment or the information. An offense is so
included when:

...

16
(c) It differs from the offense charged only in
the respect that a less serious injury or risk of
injury to the same person, property, or public
interest or a lesser kind of culpability suffices
to establish its commission.

¶ 32 After considering the “single-distinction” test set forth in

section 18-1-408(5)(c), we conclude that second degree forgery is a

lesser included offense of felony forgery. The mens rea and actus

reus elements for both forgery offenses are identical; to commit

either offense, a person must, “with intent to defraud, . . . falsely

make[], complete[], alter[], or utter[] a written instrument.” The

offenses differ only with respect to the type of document involved in

the crime. See § 18-5-102(a)-(h), C.R.S. 2016. The second degree

forgery offense does not enumerate types of documents that give

rise to a misdemeanor charge. Instead, the statute states that “[a]

person commits second degree forgery if” that person falsifies “a

written instrument of a kind not described in section 18-5-102 or

18-5-104.5.” § 18-5-104 (emphasis added).

¶ 33 The catch-all structure of the second degree forgery statute

allows a defendant to be fairly convicted of the misdemeanor offense

without a particularized finding as to the type of document that was

falsified. The distinction between the offenses, therefore, boils down

17
to felony forgery’s requirement that the falsified document be of a

particular type. Second degree forgery does not require proof of

that element. Because this is the only distinction between the two

offenses, we hold that second degree forgery is, indeed, a lesser

included offense of felony forgery under the test set forth in section

18-1-408(5)(c). And, therefore, instructing the jury on felony forgery

was not a constructive amendment because Hoggard was both

charged with and convicted of second degree forgery, a lesser

included offense of felony forgery.

B. The Trial Court Did Not Commit Plain Error

¶ 34 Having concluded that there was no constructive amendment,

we turn to whether Hoggard has shown plain instructional error.

See Liggett v. People, 135 P.3d 725, 733 (Colo. 2006) (unpreserved

claims of instructional error are reviewed for plain error). To

reverse a conviction for plain error, we must find that (1) an error

occurred; (2) the error was obvious; and (3) the error so undermined

the fundamental fairness of the trial as to cast doubt on the

judgment’s reliability. People v. Helms, 2016 COA 90, ¶ 14. “As

applied to jury instructions, the defendant must ‘demonstrate not

only that the instruction affected a substantial right, but also that

18
the record reveals a reasonable possibility that the error contributed

to [her] conviction.’” People v. Miller, 113 P.3d 743, 750 (Colo. 2005)

(quoting People v. Garcia, 28 P.3d 340, 344 (Colo. 2001)).

¶ 35 We cannot find plain error here. While the trial court made an

instructional error and that error was obvious, Hoggard was not

prejudiced by the error. As noted above, the only distinction

between the offenses is that felony forgery specifies certain types of

documents that give rise to a felony charge. But the type of falsified

document (an e-mail) was never disputed at trial. Therefore, there

is no reasonable likelihood that the instructional error affected the

outcome of the trial. Hoggard was charged with and convicted of

second degree forgery. While the jury was erroneously instructed

on felony forgery, Hoggard’s defense to that uncharged offense is

necessarily the same as the defense she put on at trial. Thus, we

cannot identify any plausible way in which the trial court’s error

affected the outcome of the trial.

¶ 36 We, therefore, conclude that Hoggard’s conviction for second

degree forgery, a lesser included offense of the instructed offense,

must be affirmed, notwithstanding the instructional error. Cf.

People v. Shields, 822 P.2d 15, 22 (Colo. 1991) (finding no plain

19
error where “[n]ot only did the instructional error committed . . . not

prejudice the defendant, it inured to his benefit”); cf. People v.

Sepulveda, 65 P.3d 1002, 1006-07 (Colo. 2003) (sustaining

conviction for lesser included offense where jury was erroneously

instructed on greater offense and convicted); see also id. at 1006

(citing Rutledge v. United States, 517 U.S. 292, 305-06 & n.15

(1996), to note that the United States Supreme Court has

“approv[ed] the practice of substituting conviction for a lesser

included offense when a conviction for a greater offense is reversed

on grounds exclusively related to the greater offense”).

IV. Attempt to Influence a Public Servant

¶ 37 Hoggard next argues that her conviction for attempt to

influence a public servant must be reversed because the trial court

did not instruct the jury on the required mens rea for each element

of the offense, thereby violating her constitutional due process

rights. She contends that, by including the intent requirement in

only one element, the instruction contravened the statutory

presumption that a mental state specified for an offense applies to

all elements of that offense. Hoggard argues that the trial court’s

erroneous jury instruction is plain error. We disagree.

20
¶ 38 We review this issue of unpreserved instructional error

challenge for plain error.

A. The Instruction Was Erroneous

¶ 39 The attempt to influence a public servant statute reads as

follows:

Any 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.

§ 18-8-306, C.R.S. 2016.

¶ 40 Because the statute prescribes the culpable mental state of

“intent” for one element, the same mens rea must be proved for

each element of the offense, unless an intent to limit its application

“clearly appears.” § 18-1-503(4), C.R.S. 2016; accord People v.

Coleby, 34 P.3d 422, 424 (Colo. 2001); People v. Perez, 2016 CO 12,

¶ 11. No such intent clearly appears in the attempt to influence a

public servant statute — and neither party contends otherwise.

Therefore, the mens rea requirement of “intent” applies to each

element of the offense.

21
¶ 41 The trial court gave the following instruction on the charge of

attempt to influence a public servant:

The elements of the crime of Attempt to
Influence a Public Servant are:

1. That the defendant,

2. in the State of Colorado, at or about the
date and place charged,

3. attempted to influence a public servant,

4. by means of deceit,

5. with the intent to alter or affect the public
servant’s decision, vote, opinion, or action
concerning any matter,

6. which was considered or performed by
the public servant or the agency or body of
which the public servant was a member.

(Emphasis added.)

¶ 42 Although the trial court’s instruction on the charge tracked

the text of the statute, it did not expressly require the jury to find

that Hoggard acted with intent as to the third and fourth elements

of the crime — namely, that she intended to attempt to influence a

public servant, and that she intended to do so by means of deceit.

See Auman v. People, 109 P.3d 647, 663-64 (Colo. 2005); People v.

Suazo, 87 P.3d 124, 128 (Colo. App. 2003) (finding an instruction

22
erroneous when the mens rea element of “knowingly” was included

in only one of the two conduct elements). Nor did the instruction

set off the mens rea requirement as a separate element. See People

v. Bornman, 953 P.2d 952, 954 (Colo. App. 1997) (collecting cases

in which the court found no reversible instructional error because

the trial court had offset the mens rea requirement as a stand-alone

element of jury instructions); see also COLJI-Crim. 8-3:09 (2016)

(setting off the intent requirement as a separate element for the

offense of attempt to influence a public servant).

¶ 43 The People contend that setting off the mens rea element

separately is not necessary here because “attempt[ing] to influence”

someone or acting “by means of deceit” are inherently intentional

acts, even without explicitly attaching any mens rea element. This

argument would have some purchase if this were a general intent

offense requiring only knowing conduct. But because this is a

specific intent offense requiring intentional conduct, we are not

persuaded.

¶ 44 Attempt is not inherently intentional; instead, attempt usually

shares the same mental state required for the predicate offense. Cf.

§ 18-2-101(1), C.R.S. 2016 (defining criminal attempt to include

23
“acting with the kind of culpability otherwise required for

commission of an offense”). This is even true for an offense where

an attempt alone is sufficient to complete the crime. For example,

merely a “knowing” mens rea is required to convict a person of

menacing, which includes the element of “attempt[ing] to place

another person in fear of imminent serious bodily injury.”

§ 18-3-206(1), C.R.S. 2016; see also People v. Lopez, 2015 COA 45,

¶¶ 50-54 (discussing jury instruction defining “attempt” in the

menacing context). The absence of any mens rea requirement for

the “attempt[] to influence” element is slightly more problematic

where, as here, the jury was not provided with any definition of

“attempt.” In short, “attempt[] to influence” is not inherently

intentional when disconnected from a mens rea element, making

the lack of a mens rea requirement attached to the element

erroneous.

¶ 45 The same holds true for “by means of deceit.” In Auman, the

supreme court determined that failure to attach the “knowingly”

mens rea to the “without authorization or by deception” element of

theft was plain error. 109 P.3d at 665-72 (emphasis added). In so

holding, the majority was unpersuaded by the partial dissent’s

24
contention that “the concept of acting ‘by deception’ carries with it

an inherent requirement of knowledge.” Id. at 673 (Mullarkey, C.J.,

concurring in part and dissenting in part). Here, the culpable

mental state is “with intent,” not merely knowingly. Cf. Brown v.

People, 239 P.3d 764, 767 (Colo. 2010) (“Under Colorado law, the

requirement that a defendant act knowingly is also satisfied where a

defendant satisfies the more-exacting ‘intentional’ standard.”)

(emphasis added) (citation omitted); see also § 18-1-503(3) (setting

forth the hierarchy of culpable mental states). Thus, we are not

persuaded that acting “by means of deceit” is inherently intentional

conduct, particularly when untethered to a mens rea element.

¶ 46 Accordingly, we conclude that the trial court’s instruction on

attempt to influence a public servant was erroneous.

B. The Error Was Obvious

¶ 47 “Generally, an error is obvious when the action challenged on

appeal contravenes (1) a clear statutory command; (2) a well-settled

legal principle; or (3) Colorado case law.” People v. Dinapoli, 2015

COA 9, ¶ 30. We conclude that the instruction was contrary to

legal principles that were settled at the time of trial.

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¶ 48 Various cases have held that the mens rea element applied to

all substantive elements of the offense and that the presumptive

way in which that is conveyed in a jury instruction is to set out the

mens rea as a separate element. See, e.g., Auman, 109 P.3d at

663-66; People v. Bossert, 722 P.2d 998, 1011 (Colo. 1986) (“[T]he

mens rea term ‘knowingly,’ offset as it is from the conduct element,

modifies all conduct described in [the conduct element].”); People v.

Stephens, 837 P.2d 231, 234 (Colo. App. 1992) (finding no

instructional error “because ‘knowingly’ precedes and is offset from

the other elements and is followed by a comma”). In 2005, our

supreme court in Auman held that the trial court committed plain

error when it gave the jury a theft instruction that “failed to

expressly modify the ‘without authorization’ element of the crime of

theft with the culpable mental state of ‘knowingly.’” 109 P.3d at

663-64.

¶ 49 In People v. Garcia, 2017 COA 1, a division of this court ruled

that a failure to set off the “knowingly” element of a sexual assault

offense did not satisfy the obviousness prong of plain error. Id. at

¶¶ 10-12. In that case, however, the instruction given by the trial

court tracked the Colorado Model Jury Instruction available at the

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time of trial for that offense. Id. at ¶ 10. The division in Garcia

concluded that, because the instruction given at trial tracked the

then-available model jury instruction, the error was not obvious.

Id. at ¶ 11.

¶ 50 In contrast, there was no model jury instruction for this

offense at the time of Hoggard’s trial. Thus, the trial court had

neither the guidance nor the safe harbor available to the trial court

in Garcia. But at the time of trial there was a well-established

practice of formulating jury instructions so that the mens rea

requirement was offset from the other elements of the crime. See,

e.g., Auman, 109 P.3d at 663-64; Bornman, 953 P.2d at 954

(collecting cases where appellate courts found no reversible

instructional error because the trial court had offset the mens rea

requirement as a stand-alone element of jury instructions). Doing

so adequately informs the jury that the mens rea requirement

applies to all elements of the offense. See Bornman, 953 P.2d at

954. That practice was not followed here. Further, absent contrary

guidance for this offense, the supreme court’s decision in Auman

provides sufficient notice to render the error obvious. Accordingly,

the trial court’s error was obvious at the time of trial.

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C. There is No Reasonable Possibility the Error Contributed to
Hoggard’s Conviction

¶ 51 In her opening brief, Hoggard argued that because the

evidence was circumstantial, the investigation was cursory, and in

a statement to law enforcement she denied knowing that the e-mail

at issue was altered, there is a reasonable probability that relieving

the People of the burden of proving that she acted intentionally with

respect to acting by deceit and attempting to influence a public

servant contributed to her conviction. The People did not respond

to this argument in their answer brief; instead they relied

exclusively on their invited error and waiver arguments and their

contention that the instruction was not erroneous (or at least not

obviously erroneous) to urge affirmance of the conviction. As

discussed above, we are not persuaded by those arguments. But to

reverse we must be convinced “not only that the instructions

affected a substantial right, but also that the record reveals a

reasonable possibility that the error contributed to the conviction.”

People v. Chase, 2013 COA 27, ¶ 59 (citing Miller, 113 P.3d at 750);

cf. People v. Casias, 2012 COA 117, ¶ 55 (“[A]n appellate court is

authorized to disregard a harmless error even when a harmless

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error argument has not been made in the briefs.” (citing United

States v. Giovannetti, 928 F.2d 225, 226 (7th Cir. 1991))).

¶ 52 We assess prejudice by looking at the record as a whole,

including all of the instructions and the jury’s other verdicts. See

Chambers v. People, 682 P.2d 1173, 1178 (Colo. 1984). As

discussed below, other portions of the jury’s verdicts that were

untainted by the identified error make us certain that the

instructional error did not contribute to the conviction. See People

v. Linares-Guzman, 195 P.3d 1130, 1134-35 (Colo. App. 2008)

(looking to jury’s verdict on a separate charge to conclude that any

instructional error was not plain error because there was no

reasonable possibility that such error contributed to defendant’s

conviction).

¶ 53 First, the jury’s verdict on the second degree forgery charge

fatally undermines Hoggard’s prejudice argument with respect to

the lack of a mens rea requirement being attached to the “by means

of deceit” element. In rendering its verdict on that charge, the jury

explicitly found that Hoggard, “with intent to defraud, falsely made,

completed, or uttered a written instrument,” that instrument being

the same e-mail at issue in the attempt to influence a public

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servant charge. (Emphasis added.) This verdict cures any

prejudice from the instruction’s failure to attach “with intent” to “by

means of deceit” in the attempt to influence a public servant

instruction. Cf. People v. Freda, 817 P.2d 588, 591 (Colo. App.

1991) (holding that “with intent to defraud” is “identical” to “by

deception,” making it inconsistent for a jury to find the former but

not the latter) (citation omitted).

¶ 54 Second, while “with intent” was not attached to the third

element — “attempted to influence a public servant” — the jury, in

rendering its verdict on attempt to influence a public servant,

explicitly found that Hoggard acted “with intent to alter or affect the

public servant’s decision, vote, opinion, or action concerning any

matter,” in the fifth element of that charge.3 (Emphasis added.) It

simply cannot be cogently argued that Hoggard intended to “alter or

affect the public servant’s decision, vote, opinion, or action” but

3 Although the issue was raised in the trial court, we express no
opinion as to whether a CFI qualifies as a “public servant” under
the statute, as this issue was not raised by either party on appeal.
See People in Interest of N.G., 2012 COA 131, ¶ 70 n.14; Amos v.
Aspen Alps 123, LLC, 298 P.3d 940, 959 n.16 (Colo. App. 2010), as
modified on denial of reh’g (Feb. 18, 2010), aff’d in part, rev’d in
part, 2012 CO 46.

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that, in doing so, she did not also intend to attempt to influence

that same public servant. Thus, we conclude that the inclusion of

“with intent” in the fifth element cured any error in omitting that

requirement in the third element.

¶ 55 We conclude that there is no reasonable probability that the

trial court’s instructional error contributed to Hoggard’s conviction,

and, therefore, it was not plain error. Accordingly, we affirm the

conviction.

V. Conclusion

¶ 56 We affirm the convictions for second degree forgery and

attempt to influence a public servant.

JUDGE FURMAN and JUDGE TERRY concur.

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