Peo v. Chadwick

24CA0346 Peo v Chadwick 07-10-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA0346
Mesa County District Court No. 23CR166
Honorable Valerie J. Robison, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Holden John Ryan Chadwick,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division III
Opinion by JUDGE SCHOCK
Dunn and Brown, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced July 10, 2025

Philip J. Weiser, Attorney General, Brian M. Lanni, Senior Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Holden John Ryan Chadwick, Pro Se
¶1 Defendant, Holden John Ryan Chadwick, appeals his

convictions on two counts of attempt to influence a public servant.1

He argues that (1) the evidence was insufficient to sustain the

convictions; (2) the statute is unconstitutionally vague as applied to

his conduct; (3) the district court erroneously excluded relevant

testimony; and (4) the district court plainly erred by failing to

ensure jury unanimity as to one of the counts. We affirm.

I. Background

¶2 Chadwick was a deputy district attorney in Mesa County. At

the request of a friend who had been accused of a crime in Boulder

County, Chadwick emailed the Boulder County District Attorney’s

(DA’s) Office to ask if there was a pending investigation of the

friend, whose name was Max Clark. Chadwick claimed that Clark

was a “potential witness/victim” in Mesa County and that he

“need[ed] to know if [Clark] ha[d] any associated investigations that

may impact our case.” A paralegal responded that there were no

such investigations, which Chadwick passed on to Clark.

1 Chadwick was also convicted of first degree official misconduct

and false reporting to authorities, but the issues he raises on
appeal do not implicate those convictions.

1
¶3 Finding the email “a little odd,” the Boulder County DA

forwarded it to the Mesa County DA, Dan Rubinstein, who

forwarded it to the Mesa County Chief Investigator, James Cannon.

Cannon called Clark, who said he had never been to Grand

Junction and was not a witness or victim there. When Clark told

Chadwick the investigator had contacted him, Chadwick surmised

that Cannon was “[p]robably just making sure [Chadwick’s] inquiry

was legit” and that “if they want[ed] to investigate [Chadwick] and

[Clark], then they’ve got a lot of time on their hands.”

¶4 Cannon then met with Chadwick, and Chadwick told him that

defense counsel in a hit-and-run case had given him Clark’s name

as a defense witness. Cannon asked Chadwick for the case number

so he could upload his recorded phone call with Clark into the

evidence management system. After several days of failing to

provide the case number, Chadwick told Cannon that the witness in

his case was actually “Matt” Clark and that his prior inquiry had

been based on wrong information. Cannon again asked for the case

number, and Chadwick gave him the case number of a hit-and-run

case he was handling, which had nothing to do with Clark.

2
¶5 Right after that conversation, Chadwick added a note to the

case in the case management system stating that the defense

attorney had identified Max Clark, and then Matt Clark, as a

potential witness. Unbeknownst to Chadwick, Cannon was logged

into the system at the same time and saw the note appear in real

time. Cannon then contacted the defense attorney, who denied

providing Chadwick the name of either Matt Clark or Max Clark.

¶6 Cannon reported this information to Chadwick’s supervisor,

Trish Mahre. Mahre and another one of Chadwick’s supervisors,

Richard Tuttle, asked Chadwick if he knew Clark personally.

Chadwick said he did not. But Cannon later searched Chadwick’s

social media and discovered he and Clark were acquaintances.

¶7 In the meantime, Chadwick emailed the defense attorney on

the case he had identified and asked her if she had told him

“something about a potential witness . . . named Max Clark or Matt

Clark.” Defense counsel said she was not aware of any witness by

that name. Around the same time, Chadwick texted Clark and told

him, “You and I don’t know each other personally if they call back.”

¶8 Based on the investigation and Chadwick’s meeting with

Mahre and Tuttle, Rubinstein decided he “needed to take action.”

3
He met with Chadwick to “give him one last opportunity to come

clean.” In that meeting, Chadwick admitted that he knew Clark.

Chadwick was placed on administrative leave and then fired.

¶9 Chadwick was charged (by a different DA’s office) with

tampering with a witness or victim, first degree official misconduct,

three counts of attempt to influence a public servant, false reporting

to authorities, and tampering with physical evidence.

¶ 10 He was convicted of first degree official misconduct, two

counts of attempt to influence a public servant — one as to Cannon

and one as to Mahre “and/or” Tuttle — and false reporting to

authorities. The tampering with a witness charge was dismissed at

trial, and Chadwick was acquitted of the remaining charges.

II. Sufficiency of the Evidence

¶ 11 Chadwick contends that the evidence was insufficient to

support his convictions for attempt to influence a public servant.

As to Cannon, Chadwick asserts that the evidence was insufficient

to prove that he knew Cannon was acting in his official capacity or

intended to influence his actions. As to Mahre and Tuttle, he

asserts that he could not be convicted of attempting to influence

them because they did not have authority to fire him. We disagree.

4
A. Standard of Review and Applicable Law

¶ 12 In reviewing the sufficiency of the evidence, we review the

record de novo to determine whether the evidence was sufficient

both in quantity and quality to sustain the conviction. Johnson v.

People, 2023 CO 7, ¶ 13. We do not “serve as a thirteenth juror and

consider whether [we] might have reached a different conclusion.”

People v. Harrison, 2020 CO 57, ¶ 33. Instead, we view the evidence

as a whole and in the light most favorable to the prosecution to

determine if it is “substantial and sufficient to support a conclusion

by a reasonable mind that the defendant is guilty of the charge

beyond a reasonable doubt.” Johnson, ¶ 13 (citation omitted).

¶ 13 As relevant to this case, a person commits the crime of

attempt to influence a public service if the person

attempts to influence any public servant by
means of deceit . . . 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 the
public servant or the agency or body of which
the public servant is a member . . . .

§ 18-8-306, C.R.S. 2024.

¶ 14 A “[p]ublic servant” is “any officer or employee of government,

whether elected or appointed, and any person participating . . . in

5
performing a governmental function,” with the exception of

witnesses. § 18-1-901(3)(o), C.R.S. 2024. A “[g]overnmental

function” is “any activity which a public servant is legally

authorized to undertake on behalf of government.” § 18-1-901(3)(j).

B. Cannon

¶ 15 Chadwick’s conviction for attempt to influence Cannon was

based on Chadwick’s false statements to Cannon that Clark, and

then another person with the same last name, had been identified

by defense counsel as a potential witness in a hit-and-run case. We

conclude that the evidence was sufficient to sustain this conviction.

¶ 16 Cannon testified that he contacted Chadwick after Rubinstein

directed him to investigate Chadwick’s email to the Boulder County

DA’s office. When Cannon asked Chadwick for the case number so

he could file his interview with Clark in the records management

system, Chadwick gave him a false case number and told him that

the potential witness’s name was actually Matt Clark. Chadwick

then added a note in the case management system falsely stating

that the defense attorney in the case had identified Max Clark, and

then Matt Clark, as a potential witness. The same day, Chadwick

texted Clark that he hoped the situation would “go[] away.” A jury

6
could reasonably infer from these circumstances that Chadwick

intended his false statements to alter Cannon’s investigation by

leading him to believe that Chadwick had done nothing wrong. See

People v. Sena, 2016 COA 161, ¶ 16 (“Intent can rarely be proven

other than through circumstantial or indirect evidence.”).

¶ 17 Chadwick argues that the evidence was insufficient to prove

he intended to influence the investigation because Cannon never

told Chadwick he was investigating him. Given the evidence as a

whole, a jury could reasonably conclude that Chadwick was aware

he was being investigated, even if Cannon did not say that

expressly. But regardless, section 18-8-306 does not require the

prosecution to prove that a defendant intended to alter an

investigation; it requires only an intent to affect any “action

concerning any matter which is to be considered or performed by

the public servant.” And, at a minimum, the evidence was

sufficient to support the conclusion that, by identifying a false case

number, Chadwick intended to cause Cannon to enter his recorded

interview in the record management system for that case. That

itself was an action performed by Cannon as a public servant.

7
¶ 18 Chadwick’s reliance on People v. Tee, 2018 COA 84, is

misplaced. In Tee, the division concluded that the defendant’s filing

of a false accident report at an online kiosk was insufficient to

sustain a conviction for attempting to influence a public servant

because the defendant had no knowledge of the public servant’s

involvement in approving the report. Id. at ¶ 53. But the evidence

in this case establishes that Cannon told Chadwick he needed the

case number so he could file the recorded interview. Thus, the

evidence was sufficient to prove that Chadwick “knew of [Cannon’s]

involvement” — at a minimum, in the official act of preparing and

filing the report of his call with Clark. Id.; see also id. at ¶¶ 47-49

(holding that evidence was sufficient to support a different

conviction for attempt to influence a public servant where the

defendant provided false information to a police officer, who

prepared and filed a report based on the information provided).

¶ 19 Chadwick also suggests that Cannon was not acting as a

“public servant” because it was unclear whether he had the

authority to investigate coworkers. But Cannon testified that part

of his job is to upload evidence and reports of his investigations into

the records management system. As to this case, Cannon testified

8
that he needed the case number so he could “finish [his] job with

this [d]efense witness” by uploading the recorded interview as

evidence in the hit-and-run case and preparing a police report.

This testimony was sufficient to establish that when Cannon asked

Chadwick for the case number of the hit-and-run case, he was

“working in accordance with [his] official duties.” People v. Knox,

2019 COA 152, ¶ 46. And because Cannon told Chadwick why he

needed the case number, the evidence was sufficient to establish

that Chadwick knew Cannon was acting in that official capacity.

¶ 20 As to the investigation more generally, Cannon testified that

he was “doing [his] job as a DA Investigator” by investigating what

he “thought was a hit-and-run case that . . . morphed into a

personnel issue.” Rubinstein also testified that his office is

authorized to investigate its own employees and that he asked

Cannon to conduct the investigation because Cannon “does all of

[Rubinstein’s] sort of internal personnel stuff.” Thus, whether as to

the specific act of uploading the interview or the investigation as a

whole, the evidence was sufficient to support a conclusion beyond a

reasonable doubt that Chadwick intended to affect Cannon’s

“performance of [his] official duties.” Tee, ¶ 46 (citation omitted).

9
C. Mahre and Tuttle

¶ 21 Chadwick argues that the evidence was insufficient to support

his conviction for attempting to influence Mahre and Tuttle because

they did not have the authority to fire him. But section 18-8-306

does not require that the public servant in question have decision-

making authority. See Tee, ¶ 48 (upholding conviction even though

the officer testified that he did not make any decisions).

¶ 22 Moreover, even if Rubinstein had the ultimate authority to

terminate Chadwick’s employment, the evidence established that

Mahre and Tuttle, as Chadwick’s supervisors, played a part in that

decision. Tuttle testified that Rubinstein always sought out

supervisors’ opinions “when it came to employee situations” and

“what action[,] if any, to take” in response to problems with an

employee. Rubinstein confirmed that he relied on Mahre and

Tuttle’s opinions because, as Chadwick’s supervisors, “[t]hey’re the

ones who have the most direct knowledge as to what the conduct

was and what the expectations/performance issues are.” This

testimony was sufficient for a rational trier of fact to conclude, at a

minimum, that Chadwick “anticipated a different result” — namely,

10
an adverse employment action — if he had revealed his relationship

with Clark during the meeting with his supervisors. Sena, ¶ 16.

¶ 23 Chadwick also maintains that an attempt to influence an

employment decision categorically falls outside section 18-8-306

because the statute does not specifically mention employment

decisions. We disagree. Section 18-8-306 applies to an attempt to

influence any public servant concerning any matter to be performed

by that public servant. It does not exempt employment decisions.

¶ 24 Thus, viewing the evidence as a whole and in the light most

favorable to the prosecution, it was sufficient to support each of

Chadwick’s convictions for attempt to influence a public servant.

III. Constitutionality of Section 18-8-306

¶ 25 Chadwick also contends that section 18-8-306 is

unconstitutionally vague as applied to his conduct in this case

because the statute does not specify whether it applies to attempts

to influence employment decisions. We are not persuaded.

A. Standard of Review and Applicable Law

¶ 26 Because statutes are “presumed to be constitutional,” a party

challenging a statute as unconstitutionally vague “has the burden

of proving unconstitutionality beyond a reasonable doubt.” People

11
v. Janousek, 871 P.2d 1189, 1195 (Colo. 1994). We review de novo

whether a statute is unconstitutionally vague as applied. People v.

Graves, 2016 CO 15, ¶ 9. When, as here, the vagueness argument

is unpreserved, we review for plain error, meaning the error must be

“obvious, substantial, and ‘so undermine[] the fundamental fairness

of the trial itself as to cast serious doubt on the reliability of the

judgment of conviction.’” Johnson, ¶¶ 28-29 (citation omitted).

¶ 27 A criminal statute must define the offense “with sufficient

definiteness that ordinary people can understand what conduct is

prohibited and in a manner that does not encourage arbitrary and

discriminatory enforcement.” People v. Montante, 2015 COA 40,

¶ 44 (citation omitted). A statute is unconstitutionally vague if it

“fail[s] to provide the kind of notice that will enable . . . the ordinary

citizen to conform [their] conduct to the law.” Id. (citation omitted).

A statute is unconstitutionally vague as applied “if it does not, with

sufficient clarity, prohibit the conduct against which it is enforced.”

Id.

B. Analysis

¶ 28 Chadwick’s sole argument concerning the constitutionality of

section 18-8-306 is that it does not specify that it applies to public

12
servants performing employment functions, and thus, it is unclear

whether it applies to attempts to influence employment decisions.

¶ 29 The supreme court has rejected a facial vagueness challenge

to section 18-8-306, concluding that “the statute clearly delineates

the type of conduct . . . that subjects a person to criminal

prosecution.” Janousek, 871 P.2d at 1196. In so holding, the court

also noted that “the statute is not vague since it requires the

prosecution to prove that the defendant acted with the specific

intent.” Id. We reach the same conclusion as to Chadwick’s

argument that the statute is vague as applied. See Montante, ¶ 46.

¶ 30 Section 18-8-306 applies to an attempt to influence “any

public servant” by means of deceit with the intent to affect the

public servant’s decision or action concerning “any matter which is

to be . . . performed by the public servant.” (Emphases added.)

Section 18-1-901 provides that a “public servant” is “any . . .

employee of government” performing “any activity which a public

servant is legally authorized to undertake on behalf of government.”

(Emphases added.) Together, these provisions “are sufficiently clear

such that a person of ordinary intelligence in [Chadwick’s] position

would not have to guess that it proscribes” lying to a government

13
investigator and one’s supervisors, at least in part to avoid an

adverse employment decision.2 See Montante, ¶ 46. At a minimum,

the statute is not obviously unconstitutional beyond a reasonable

doubt. See Janousek, 871 P.2d at 1195; Johnson, ¶ 29.

¶ 31 Chadwick highlights a question from the jury as to whether

Tuttle and Mahre were considered “public servants” when acting in

their capacity as an employer. But the language of the statute

answers that question by unambiguously providing that a “public

servant” includes any government employee performing any activity

the employee is legally authorized to undertake on behalf of the

government. § 18-1-901(3)(j), (o). That definition necessarily

includes a government employee performing government

employment functions, whether separately called out or not. See

Janousek, 871 P.2d at 1196 (“[A] criminal statute need not contain

precise definitions of every word or phrase constituting an element

2 We also question Chadwick’s premise that the public servants in

question — particularly Cannon — were acting solely in an
“employment role” or that his deception was limited to avoiding
adverse employment consequences. Given the nature of Chadwick’s
underlying conduct, Cannon’s role as the office’s chief investigator,
and the scope of the investigation, it would be reasonable to infer
that Chadwick understood the investigation could turn criminal.

14
of the offense.”) (citation omitted). Indeed, in answering the jury

question, the district court directed the jury to the statutory

definition of “public servant,” as contained in the jury instructions.

¶ 32 Thus, because it is sufficiently clear that section 18-8-306

applies to Chadwick’s conduct in this case, the statute is not

unconstitutionally vague as applied. See Montante, ¶ 49.

IV. Exclusion of Testimony

¶ 33 Chadwick next argues that the district court erred by

excluding testimony from his wife, Emily Chadwick, that Cannon

had previously told her he did not investigate coworkers. We

discern no reversible error because any error was harmless.

A. Additional Background

¶ 34 Chadwick called Emily3 as a witness at trial. She testified that

she had previously made a criminal complaint to Cannon against

someone at the Mesa County DA’s Office. Defense counsel asked

her what Cannon had told her in response to that complaint. The

district court sustained the prosecution’s hearsay objection.

3 Because Emily Chadwick has the same last name as defendant,

we refer to her by her first name, meaning no disrespect.

15
Defense counsel then asked whether an investigation had been

completed, and the prosecution objected to relevance.

¶ 35 At a bench conference, defense counsel proffered that Emily

would testify that Cannon told her he could not investigate

coworkers. Defense counsel asserted that he was not offering the

statement for its truth because “there’s other evidence that it’s not

true.” Instead, he argued that the statement, which Emily relayed

to Chadwick, bore on Chadwick’s intent and “whether he could

believe he was influencing . . . Cannon and anything that he did.”

¶ 36 The prosecution objected to the testimony on several grounds,

including that it was hearsay, irrelevant, speculative, and

misleading or confusing to the jury. The district court sustained

the objection without specifying its legal basis for doing so.

B. Standard of Review

¶ 37 The district court has broad discretion to determine the

admissibility of evidence based on its relevance, probative value,

and prejudicial impact. People v. Elmarr, 2015 CO 53, ¶ 20. We

review evidentiary rulings for an abuse of discretion, which occurs

when the ruling is “manifestly arbitrary, unreasonable, or unfair” or

“based on an erroneous view of the law.” Id. (citation omitted). We

16
review de novo whether a given statement constitutes hearsay.

People v. Schnorenberg, 2023 COA 82, ¶ 10, aff’d, 2025 CO 43.

C. Section 16-10-201 and Impeachment

¶ 38 Chadwick asserts for the first time on appeal that Emily’s

testimony should have been admitted under section 16-10-201,

C.R.S. 2024. That statute allows for the admission of a witness’s

prior inconsistent statement “not only for the purpose of

impeaching the testimony of the witness, but also for the purpose of

establishing a fact,” if two conditions are satisfied: (1) the witness,

while testifying, was given an opportunity to explain or deny the

statement, or the witness is still available to give further testimony;

and (2) the previous inconsistent statement purports to relate to a

matter within the witness’s own knowledge. § 16-10-201(1).

¶ 39 Because Chadwick did not assert this objection in the district

court, our review is for plain error, meaning that any error must be

“obvious and substantial.” Hagos v. People, 2012 CO 63, ¶ 14.

Chadwick has not made this showing. See People v. Conyac, 2014

COA 8M, ¶ 54 (noting that it is the defendant’s burden to establish

plain error). He does not (1) identify the testimony by Cannon that

was inconsistent with his prior statement; (2) point to anywhere in

17
the record that Cannon was given an opportunity to explain or deny

the statement; or (3) address whether Cannon was available to give

further testimony. Thus, the district court did not plainly err by

failing to admit the testimony under section 16-10-201(1).

¶ 40 To the extent Chadwick asserts an impeachment argument

that is distinct from his argument under section 16-10-201, he did

not preserve that argument either, and the district court did not

plainly err for the same reasons.4 See CRE 613(a) (providing that a

prior inconsistent statement may be proved by extrinsic evidence

only when the witness denies or does not remember making it).

D. Hearsay and Relevance

¶ 41 Hearsay is “a statement other than one made by the declarant

while testifying at the trial or hearing, offered in evidence to prove

the truth of the matter asserted.” CRE 801(c). Subject to many

exceptions, hearsay is generally inadmissible. CRE 802. But “[a]n

out-of-court statement offered, not for the truth of the matter it

4 Chadwick argued impeachment as to a different piece of excluded

evidence — an email from Mahre explaining that Emily’s complaint
would be investigated by the Colorado Bureau of Investigation.
Chadwick does not challenge the exclusion of that email on appeal.

18
asserts, but solely to show its effect on the listener, is not hearsay.”

People v. Robinson, 226 P.3d 1145, 1151 (Colo. App. 2009).

¶ 42 Evidence is relevant if it has “any tendency to make the

existence of any fact that is of consequence to the determination of

the action more probable or less probable than it would be without

the evidence.” CRE 401. Relevant evidence is admissible (except as

otherwise provided), while irrelevant evidence is not. CRE 402.

¶ 43 The People concede, and we agree, that the excluded testimony

was not hearsay to the extent it was offered to show that Chadwick

lacked the requisite mental state to commit the crime of attempting

to influence a public servant. See Schnorenberg, ¶ 27. Defense

counsel made clear that the statement was not offered to show that,

in fact, Cannon could not investigate coworkers — i.e., the truth of

the matter asserted. Rather, it was offered to show that Chadwick

believed Cannon could not investigate coworkers and, thus, could

not have intended his statements to Cannon to influence the

investigation. The statement was not hearsay for that purpose.

¶ 44 We also agree with Chadwick that the statement was

minimally relevant for that purpose. One element of attempt to

influence a public servant is “the intent . . . to alter or affect the

19
public servant’s decision . . . or action.” § 18-8-306; see also

Hoggard v. People, 2020 CO 54, ¶ 18. What Cannon told Emily was

not itself relevant to Chadwick’s intent. But the proffer was that

Emily relayed the statement to Chadwick. Chadwick’s awareness of

Cannon’s purported position that he did not investigate coworkers

could have some tendency to make it less probable that Chadwick

knew there was a pending investigation for him to influence or that

he intended his statements to Cannon to affect that investigation.

See People v. Mena, 2025 COA 14, ¶ 15 (“[E]vidence is relevant if the

evidence makes it more or less probable that . . . the defendant

acted with the necessary criminal intent.”) (citation omitted).5

E. Harmlessness

¶ 45 But even assuming the district court erred, any such error

was harmless. See CRE 103(a) (“Error may not be predicated upon

a ruling which admits or excludes evidence unless a substantial

right of the party is affected . . . .”); People v. Vanderpauye, 2023 CO

5 The prosecution argued in the district court that Cannon’s

statement to Emily presented a substantial risk of confusing the
issues or misleading the jury. See CRE 403. Because the People do
not make this argument on appeal, we do not consider it.

20
42, ¶ 66 (noting that we will reverse only if there is a reasonable

probability that the error contributed to the conviction).

¶ 46 First, the evidence overwhelmingly established that Chadwick

knew he was being investigated. Six days before Chadwick provided

the false case number to Cannon, Clark told Chadwick that the

DA’s office had contacted him, and Chadwick responded that the

office was probably “making sure [his] inquiry was legit.” Chadwick

also told Clark to lie about his involvement in a careless driving

case. Then, a few days later, Cannon asked Chadwick directly what

case Clark was a witness in. Thus, at a minimum, Chadwick knew

the office was looking into his inquiry and expected them to call

Clark again. Because Chadwick knew he was being investigated —

whether as a criminal or personnel matter — it does not matter

whether he previously thought Cannon could investigate him.

¶ 47 Second, as noted above, the prosecution did not need to prove

that Chadwick intended to influence an investigation. It only had to

prove that he intended to influence an action by Cannon. See § 18-

8-306. And regardless of whether Chadwick believed Cannon could

investigate him, he undoubtedly knew that Cannon was taking an

21
action based on the case number Chadwick gave him — namely,

entering his recorded interview with Clark in the files for that case.

¶ 48 Because this evidence independently, and overwhelmingly,

established Chadwick’s intent, there is no reasonable probability

that the exclusion of Emily’s testimony contributed to Chadwick’s

conviction. We therefore conclude any error was harmless.

V. Jury Unanimity

¶ 49 Chadwick’s final contention is that the district court plainly

erred by (1) labeling the second count of attempt to influence a

public servant — in the verdict form and the listing of charges in

the jury instructions — as “Trish Mahre and/or Richard Tuttle”;

and (2) failing to give an additional instruction requiring the jury to

identify which of those two individuals he attempted to influence.

He argues that these two putative errors combined to deprive him of

his right to a unanimous verdict on this count. We again disagree.

A. Additional Background

¶ 50 Because Chadwick was charged with three counts of attempt

to influence a public servant, the jury instructions and verdict form

for those counts identified the public servants associated with each

count in parentheticals. The first count was “James Cannon,” the

22
second was “Trish Mahre and/or Richard Tuttle,” and the third was

“Sally Atkinson” (the defense counsel who Chadwick had emailed).

¶ 51 Chadwick’s counsel requested a unanimity instruction for the

count involving Mahre and/or Tuttle because of its use of the

phrase “and/or.” The district court agreed that a unanimity

instruction was required, and it instructed the jury as follows:

In order to convict the defendant of Attempt to
Influence a Public Servant (Count C) [(the
“Trish Mahre and/or Richard Tuttle” count)],
you must either unanimously agree that the
defendant committed the same act or acts, or
that he committed all of the acts alleged.

B. Applicable Law and Standard of Review

¶ 52 A criminal defendant has the right to a unanimous jury

verdict. People v. Hines, 2021 COA 45, ¶ 49. But unanimity is

required “only with respect to the ultimate issue of the defendant’s

guilt or innocence of the crime charged and not with respect to

alternative means by which the crime was committed.” People v.

Wester-Gravelle, 2020 CO 64, ¶ 30 (citation omitted). Nor must the

jury agree on “the evidence or theory by which a particular element

is established.” People v. Vigil, 251 P.3d 442, 447 (Colo. App. 2010).

23
¶ 53 When the prosecution presents evidence of “multiple distinct

acts, any one of which would establish the offense charged, ‘and

there is a reasonable likelihood that jurors will disagree regarding

which act was committed,’” the defendant may be entitled to a

modified unanimity instruction. Wester-Gravelle, ¶ 31 (citation

omitted). Such an instruction informs the jurors that “to convict

the defendant, they ‘must either unanimously agree that the

defendant committed the same act or acts or that the defendant

committed all of the acts’” charged. Id. at ¶ 31 (citation omitted).

¶ 54 We review de novo whether the district court failed to give an

appropriate unanimity instruction. Hines, ¶ 48. But because

Chadwick did not object in the district court to either the “and/or”

construction or the modified unanimity instruction, we review these

arguments for plain error. See Wester-Gravelle, ¶ 27.

C. Analysis

¶ 55 Together, Knox and People v. Snider, 2021 COA 19, foreclose

Chadwick’s argument. In Knox, the division held that the offense of

attempt to influence a public servant is defined by each “distinct

volitional act[] of attempt to influence,” not by the number of public

servants involved. Knox, ¶ 35. Thus, a single act of simultaneously

24
lying to multiple public servants is one offense. Id. at ¶ 36. And

when an offense is “defined in terms of discrete volitional acts[,] . . .

to whom the act was directed is irrelevant.” Snider, ¶ 51.6

¶ 56 In this case, the count involving Mahre “and/or” Tuttle was

based on a single volitional act — Chadwick’s false statement, made

simultaneously to both, that he did not know Clark. In other

words, as to that count, the prosecution did not present evidence of

“multiple distinct acts.” Wester-Gravelle, ¶ 31. Because the

prosecution was “not required to prove that [Chadwick attempted to

influence] a particular [public servant], just that he [attempted to

influence] any [public servant,] . . . the jury was not required to

unanimously agree on which [public servant]” he attempted to

influence. Snider, ¶ 52. Regardless of whether he attempted to

influence Mahre, Tuttle, or both, there was only one act.

6 Chadwick cites People v. Simmons, 973 P.2d 627, 630 (Colo. App.

1998), which reversed a felony menacing conviction because the
court failed to instruct the jury it must unanimously agree on a
specific victim. But unlike the offense in this case, felony menacing
is “defined in terms of the number of victims.” People v. Snider,
2021 COA 19, ¶ 53. When an offense is instead defined by “discrete
volitional acts,” jury unanimity as to the victim is not required. Id.

25
¶ 57 In any event, the district court gave a modified unanimity

instruction as to this count, requiring the jury to unanimously

agree that Chadwick committed the same act or acts, or all the acts.

See Wester-Gravelle, ¶ 31. That instruction sufficiently protected

Chadwick’s right to a unanimous verdict. See Quintano v. People,

105 P.3d 585, 594 (Colo. 2005). Because the prosecution was not

required to prove the identity of a particular public servant, the

district court did not err, plainly or otherwise, by failing to instruct

the jury that it must agree on whether Chadwick attempted to

influence Mahre, Tuttle, or both. Cf. Wester-Gravelle, ¶ 38 (holding

that district court did not plainly err by not sua sponte giving a

modified unanimity instruction where it instructed the jury that any

verdict had to be unanimous as to “all parts of it”).

VI. Disposition

¶ 58 The judgment is affirmed.

JUDGE DUNN and JUDGE BROWN concur.

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