People v. Peters

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
April 2, 2026

2026COA24

No. 24CA1951, People v. Peters — Constitutional Law — Article
II — Reprieves and Pardons — Offenses Against the United
States — Article VI — Supremacy Clause Immunity — First
Amendment — Freedom of Speech

A division of the court of appeals addresses, for the first time

in a published Colorado appellate decision, two significant issues

implicating the interplay of federal authority and state sovereignty

in the federal republic established by the United States

Constitution: (1) whether the President of the United States has the

power to pardon an individual for state law offenses and (2) whether

the doctrine of Supremacy Clause immunity protects an individual

who is not a federal officer or federal agent from state prosecution

for actions taken in service of the federal government. After

resolving both issues against Peters, and addressing her other

appellate contentions, the division affirms her convictions. But the
division reverses her sentence because it was based in part on

improper consideration of her exercise of her right to free speech.

The division remands the case to the trial court for resentencing.
COLORADO COURT OF APPEALS 2026COA24

Court of Appeals No. 24CA1951
Mesa County District Court No. 22CR371
Honorable Matthew D. Barrett, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Tina Marie Peters,

Defendant-Appellant.

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

Division V
Opinion by JUDGE TOW
Welling and Lipinsky, JJ., concur

Announced April 2, 2026

Philip J. Weiser, Attorney General, Lisa K. Michaels, Senior Assistant Attorney
General, Nora Passamaneck, Senior Assistant Attorney General, Denver,
Colorado, for Plaintiff-Appellee

John Case P.C., John Case, Littleton, Colorado; McSweeney, Cynkar &
Kachouroff, PLLC, Patrick M. McSweeney, Robert J. Cynkar, Woodbridge,
Virginia; The Ticktin Law Group, Peter Ticktin, Deerfield Beach, Florida, for
Defendant-Appellant
¶1 Defendant, Tina Marie Peters, appeals the judgment of

conviction entered on a jury verdict finding her guilty of three

counts of attempt to influence a public servant and one count each

of conspiracy to commit criminal impersonation, first degree official

misconduct, violation of duty, and failure to comply with

requirements of the Secretary of State. This appeal requires us to

consider, for the first time in a published Colorado appellate

decision, two significant issues implicating the interplay of federal

authority and state sovereignty in the federal republic established

by the United States Constitution: (1) whether the President of the

United States has the power to pardon an individual for state law

offenses and (2) whether the doctrine of Supremacy Clause

immunity protects an individual who is not a federal officer or

federal agent from state prosecution for actions allegedly taken in

service of the federal government. Because we answer both

questions in the negative, we reject Peters’s challenge to the

Colorado courts’ jurisdiction over this prosecution.

¶2 Further, after reviewing Peters’s other appellate contentions,

we affirm the judgment of conviction in part and reverse it in part.

Specifically, we affirm Peters’s convictions, but we reverse her

1
sentence because it was based in part on improper consideration of

her exercise of her right to free speech. We remand the case to the

trial court with directions for resentencing.

I. Background

¶3 The following evidence admitted at trial could support the

jury’s verdict.

¶4 Beginning in the spring of 2021, the Office of the Colorado

Secretary of State (SOS) began preparation for election management

software (EMS) upgrades across Colorado, including in Mesa

County. Mesa County, like all counties across Colorado, contracted

with Dominion Voting Systems (Dominion) to provide this software.

¶5 The EMS is typically updated every other year through a

process called the “trusted build.” During Mesa County’s 2021

trusted build (the Build),1 SOS staff, along with Dominion

personnel, uploaded an updated and certified version of the

software to Mesa County’s server. Prior digital election records had

1 To clarify, throughout this opinion “trusted build” refers

generically to the process as applicable to all counties, while “the
Build” refers specifically to the process undertaken in Mesa County.

2
to be backed up before the Build, and Dominion provided

instructions on how to do this.2

¶6 At Mesa County’s behest, Dominion requested that the SOS

allow members of the public to attend the Build. Jesse Romero, the

manager of the SOS team responsible for, among other duties,

ensuring that counties use voting systems in compliance with the

law and conducting post-election audits, described this as an

unusual request. He testified that, in his experience, the trusted

build process had never been public. Romero denied the request,

citing, among other reasons, security concerns.3 In his response to

Mesa County’s request, Romero said that only required personnel

from Dominion, the SOS, and Mesa County would be permitted to

attend the Build. He also said that cameras in the room would

document the Build and suggested that Mesa County allow the

public to view the recorded video.

2 In addition, the original paper ballots for each election are

retained for twenty-five months. See § 1-7-802, C.R.S. 2025.
3 Romero also noted that the number of people in the room would

need to be limited as a result of restrictions in place at the time
related to the ongoing COVID-19 pandemic.

3
¶7 About a month before the Build, Peters, who at the time was

the Mesa County Clerk and Recorder, met in her office with her

chief deputy clerk, Belinda Knisley, and nongovernmental

individuals, including Dr. Douglas Frank and Sherronna Bishop.

At various points, Peters called Mesa County elections staff into the

meeting. During the meeting, Dr. Frank gave a presentation about

alleged 2020 election fraud. A discussion about opening up voting

machines ensued, and Dr. Frank and Sandra Brown (one of the

managers in Peters’s office) said that opening the machines would

be illegal. Peters invited Dr. Frank to attend the Build to perform

an “audit.” Dr. Frank said he could send a team to conduct the

audit. At this point in the meeting, Peters asked her elections staff

to leave.

¶8 Later, Bishop introduced Gerald Wood to Peters, and Peters

asked Wood, who was not a state or Mesa County employee, if he

could help with technical needs such as creating a backup of Mesa

County’s elections system. Meanwhile, Peters told Mesa County

elections staff that Wood was a new Mesa County employee — an

administrative assistant — who needed to learn the system because

he was going to help Brown. This wasn’t true. Peters informed staff

4
that Wood would attend the Build instead of her front-office

elections manager.

¶9 Romero emailed instructions for the trusted builds to every

county, reiterating that only authorized SOS staff, county elections

staff, and Dominion staff could attend. The email stated that no

later than one week prior to each county’s trusted build, that

county needed to disclose which staff members would be present

and confirm that they would adhere to the specified procedures. In

the email, Romero advised that “[i]f, when we arrive onsite, or

during the process there are others present (beyond Dominion and

county elections staff that have been authorized, and the Clerk &

Recorder) in the area where the [t]rusted [b]uild will take place, we

will move on to the next county.” Finally, Romero instructed the

counties to “[b]ackup any election projects on your voting system to

removeable media before our arrival.” Brown testified that she

made multiple backups of the elections server before the Build.

¶ 10 At Peters’s request, Knisley asked Mesa County’s human

resources department to provide Wood with the same highly

exclusive employee badge access to Mesa County’s elections

equipment that Brown had. Peters also directed Knisley to fill out a

5
new hire form for Wood and submit an information technology help

desk ticket to get him computer system access. After Wood received

his badge, computer login, and email account, Peters told him to

give his badge to Knisley. He did so. Knisley testified that Peters

intended to use the badge to bring Conan Hayes, an individual

associated with Dr. Frank, into the Build. Hayes was not a state or

Mesa County employee. David Underwood — the Mesa County

employee who gave Wood access to the computer system — testified

that he would not have provided Wood access had he known Peters

had misrepresented Wood to be a Mesa County employee.

¶ 11 Based on Peters’s representations, Brown informed Romero

that Mesa County would adhere to the procedures outlined in his

email. She also stated that, in addition to herself, Wood — whom

she identified as a Mesa County administrative assistant — and

Peters would attend the Build.

¶ 12 Notwithstanding Romero’s suggestion that Peters address her

transparency concerns by permitting the public to view the security

camera footage, Peters directed Knisley to turn off the security

cameras in the room where the Build was to take place a week

before the Build and turn them back on after the Build was

6
complete. Knisley followed this instruction. Mesa County’s practice

was for the cameras to remain on at all times.

¶ 13 The day before the Build, Peters directed Brown to show Wood

around. But instead of Wood, Peters brought in Hayes, who used

Wood’s badge. Posing as Wood, Hayes made a “forensic image” of

the elections server.

¶ 14 The next day, Danny Casias, an SOS employee, performed the

Build. He first confirmed that Mesa County had backed up the

prior election records. Brown confirmed she had performed the

backup. Peters then arrived with Hayes, whom Peters introduced to

Casias as Wood, and identified him as a Mesa County employee.

Romero testified that had he known Wood was not a Mesa County

employee but was present at the Build, he would have directed

Casias to “pack up and leave,” and the Build would not have

occurred. And Casias testified that he would not have performed

the Build had he known an “unauthorized” person was present.

Peters also secretly recorded a video of the Build on her cell phone.

¶ 15 After the Build was complete, Hayes downloaded another copy

of the server, and Peters later shipped the copy to him. According

7
to Brown, Peters also sent pictures she took during the Build to

“some team that was analyzing it.”

¶ 16 A couple of months later, SOS employees learned that

screenshots of a video, including a screenshot of Mesa County’s

confidential Build passwords from 2021, were posted online,

triggering an SOS investigation into Peters and her office.

¶ 17 Based on the results of the investigation, a grand jury was

impaneled. The grand jury indicted Peters on three counts of

attempt to influence a public servant (one count each for her

representations to Romero, Underwood, and Casias); two counts of

conspiracy to commit criminal impersonation; and one count each

of criminal impersonation, identity theft, first degree official

misconduct, violation of duty, and failure to comply with

requirements of the Secretary of State. A Mesa County jury

convicted her of seven of the ten charges: all three counts of

attempt to influence a public servant and one count each of

conspiracy to commit criminal impersonation, violation of duty, first

degree official misconduct, and failure to comply with the

requirements of the Secretary of State.

8
¶ 18 According to the indictment, the first four of these charges

were felonies, while the last three were misdemeanors. The trial

court sentenced Peters to six months in the Mesa County jail on the

misdemeanors, followed by an aggregate sentence on the felonies of

eight years and three months in the custody of the Department of

Corrections.4

¶ 19 Peters appeals, contending that (1) she is immune from state

prosecution on Supremacy Clause immunity grounds; (2) there was

insufficient evidence to support several of the convictions; (3) the

trial court erred by excluding certain evidence; (4) the trial court

erred by disallowing certain affirmative defenses; (5) the indictment

failed to give her adequate notice of the charges against her; (6) the

prosecutor made comments that violated CRE 404(b); (7) the trial

court erred by failing to hold a post-trial hearing on alleged

improper juror conduct; (8) the prosecutor committed misconduct

4 Specifically, the trial court imposed concurrent sentences of three

and a half years on the convictions for attempt to influence a public
servant involving the SOS employees (Romero and Casias), a
consecutive sentence of three and a half years for the attempt to
influence Mesa County employee Underwood, and a consecutive
sentence of fifteen months on the conviction for conspiracy to
commit criminal impersonation.

9
in rebuttal closing argument; (9) the charge and conviction for

conspiracy to commit criminal impersonation were misstated and,

as charged, reflect a misdemeanor offense rather than a felony; and

(10) the trial court made various errors and violated her

constitutional rights during sentencing.5

¶ 20 While this appeal was pending, President Donald J. Trump

purported to pardon Peters for “those offenses she has or may have

committed or taken part in related to election integrity and security

during the period from January 1, 2020 through December 31,

2021.” Donald J. Trump, Executive Grant of Clemency, U.S. Dep’t

of Just. (Dec. 5, 2025), https://perma.cc/N5BB-WGJ7.

¶ 21 Thereafter, Peters filed a motion “to determine whether this

court has jurisdiction to adjudicate” this appeal, asserting two

arguments — a claim that the President’s pardon abrogates her

state law offenses and a reiteration of her Supremacy Clause

immunity argument. The parties filed supplemental briefs on this

motion.

5 To the extent Peters raises additional arguments in her reply brief,

we do not address them. See People v. Boles, 280 P.3d 55, 61 n.4
(Colo. App. 2011) (declining to address an argument raised for the
first time in a reply brief).

10
¶ 22 We first address the jurisdictional challenges and conclude

that (1) the President’s pardon does not reach Peters’s state offenses

and (2) Peters is not protected by Supremacy Clause immunity. We

then address Peters’s remaining appellate contentions in turn.

II. Peters’s Jurisdictional Challenges

¶ 23 Because jurisdiction is a threshold issue, we address it first.

As noted, her jurisdictional challenges are twofold: that President

Trump’s pardon divests Colorado courts of jurisdiction over her

prosecution and that she is protected by Supremacy Clause

immunity.

¶ 24 At the outset, we note that, notwithstanding the specific

language in her motion, Peters almost certainly does not actually

want us to conclude that we lack jurisdiction. If we lack

jurisdiction, we must dismiss the appeal and can take no action

with respect to the underlying judgment of conviction. The

conviction would, therefore, stand — at least until the trial court

could be asked to consider a postconviction motion. See People v.

Vargas-Reyes, 2018 COA 181, ¶ 1 (dismissing appeal for lack of

jurisdiction).

11
¶ 25 We recognize that the doctrine of Supremacy Clause immunity

implicates subject matter jurisdiction. See In re Neagle, 135 U.S. 1,

75 (1890); Ohio v. Thomas, 173 U.S. 276, 284 (1899); Kentucky v.

Long, 837 F.2d 727, 744 (6th Cir. 1988); New York v. Tanella, 374

F.3d 141, 146 (2d Cir. 2004); see also Fed. R. Crim. P. 12(b)

advisory committee’s note to 1944 adoption (stating that

“immunity” is a Rule 12(b) defense). And a challenge to subject

matter jurisdiction may be raised at any time during the case,

including on direct appeal. Crim. P. 12(b)(2); United States v.

Richardson, 672 F. App’x 368, 369 (5th Cir. 2016); see, e.g.,

Tanella, 374 F.3d at 147 (reviewing on appeal the denial of a motion

to dismiss based on Supremacy Clause immunity grounds). But it

is the trial court’s jurisdiction that Peters is really challenging.

¶ 26 Furthermore, to the extent Peters is seeking immediate

release, she is asking the wrong court. That relief sounds in habeas

corpus, which this court lacks authority to grant in the first

instance. See 28 U.S.C. § 2241(d) (requiring that an application for

federal habeas corpus relief be filed “in the district court for the

district wherein such person is in custody or in the district court for

the district within which the State court was held which convicted

12
and sentenced [her]”); § 13-45-101(1), C.R.S. 2025 (providing that a

request for state habeas relief may be filed in “the supreme or

district courts”). Thus, to the extent Peters is requesting such

relief, we cannot grant it.

¶ 27 Putting her requested relief aside, we turn to Peters’s

jurisdictional contentions that she has been pardoned and that she

was immune from prosecution in the first place.

A. The Pardon

¶ 28 The United States Constitution grants the President the

“Power to grant Reprieves and Pardons for Offences against the

United States, except in Cases of Impeachment.” U.S. Const. art. II,

§ 2, cl. 1.

¶ 29 The crux of Peters’s argument is that the phrase “Offences

against the United States” includes an offense against any of the

states in the union. We join what appears to us to be every other

appellate court that has addressed the issue and reject such an

expansive reading of the phrase. See, e.g., Hain v. Mullin, 436 F.3d

1168, 1172 (10th Cir. 2006) (“[T]he President does not have the

power acting under the United States Constitution to pardon

defendants convicted in state courts . . . .”); People v. Hill, 839 P.2d

13
984, 1013 (Cal. 1992) (“The President does not have the power to

pardon those persons, like defendant, who are convicted only of

crimes under state law.”), overruled on other grounds by, Price v.

Super. Ct., 25 P.3d 618 (Cal. 2001). (Peters cites no case — and our

research has found none — that has held otherwise.)

1. Standard of Review

¶ 30 Whether a President’s pardon requires dismissal of the case is

a legal question, which we review de novo. Cf. In re Abrams, 689

A.2d 6, 9 (D.C. 1997); Hirschberg v. Commodity Futures Trading

Comm’n, 414 F.3d 679, 682 (7th Cir. 2005).

2. Analysis

¶ 31 As an initial matter, the parties appear to agree that the

phrase “Offences against the United States” is ambiguous. “A

provision is ambiguous when it is reasonably susceptible of

multiple interpretations.” Pub. Serv. Co. of Colo. v. Outdoor Design

Landscaping LLC, 2026 CO 6, ¶ 24. We agree with the parties that

the phrase is ambiguous and thus turn to relevant textual,

structural, and historical considerations to glean the provision’s

meaning. Zivotofsky v. Clinton, 566 U.S. 189, 201 (2012).

14
a. Textual Interpretation

¶ 32 We begin where every effort to interpret law should begin: with

the text. What did the Founders mean when they enshrined in the

Constitution the President’s power to pardon offenses “against the

United States”?

¶ 33 Peters contends, without citation to any legal or historical

authority, that “the United States” in this clause refers to the

thirteen individual sovereign states that existed at the time the

United States Constitution was ratified, as well as to the federal

government. Specifically, Peters points to the use of plural

pronouns to refer to the United States in the Constitution to

contend that the term must be referring to the states, not the

federal government, which would take a singular pronoun. We

disagree.

¶ 34 The United States Constitution repeatedly refers to “the

several States,” “each State,” “that State,” and “any State,”

including in clauses that also refer separately to “the United

States.” See, e.g., U.S. Const. art. III, § 2, cl. 1 (extending the

judicial power to cases arising under “the Laws of the United

States” and to “Controversies to which the United States shall be a

15
Party;—to Controversies between two or more States;—between a

State and Citizens of another State;—between Citizens of different

States”); U.S. Const. art. IV, § 3, cl. 2 (“[N]othing in this

Constitution shall be so construed as to Prejudice any Claims of the

United States, or of any particular State.”); U.S. Const. art. IV, § 4

(“The United States shall guarantee to every State in this

Union . . . .”); U.S. Const. art. VI, cl. 3 (“[T]he Members of the

several State Legislatures, and all executive and judicial Officers,

both of the United States and of the several States, shall be bound

by Oath or Affirmation, to support this Constitution . . . .”).

¶ 35 Notably, the same clause establishing the presidential pardon

power also states, “The President shall be Commander in Chief of

the Army and Navy of the United States, and of the Militia of the

several States . . . .” U.S. Const. art. II, § 2, cl. 1 (emphasis added).

Had the Founders wanted to extend the presidential pardon power

to state offenses, they could have used language identical or similar

to “the several States” later in the sentence. But they did not.

Instead, they used only “the United States,” which must mean

something different than “the several States.” See Wright v. United

States, 302 U.S. 583, 588 (1938) (“To disregard such a deliberate

16
choice of words and their natural meaning would be a departure

from the first principle of constitutional interpretation. ‘In

expounding the Constitution of the United States . . . every word

must have its due force, and appropriate meaning; for it is evident

from the whole instrument, that no word was unnecessarily used,

or needlessly added.’” (quoting Holmes v. Jennison, 39 U.S. (14 Pet.)

540, 570-71 (1840))). Moreover, according to traditional interpretive

canons, the use of certain language in one part of a provision and

different language in another part generally indicates that different

meanings were intended. See Sosa v. Alvarez-Machain, 542 U.S.

692, 711 n.9 (2004) (quoting 2A Norman J. Singer, Statutes and

Statutory Construction § 46:06, at 194 (6th rev. ed. 2000)). Thus,

in using “the United States,” the Founders were referring to the

federal government — not the individual states.

¶ 36 Nor does the Founders’ use of a plural pronoun with “the

United States” mean that the phrase must have referred to a plural

noun (in other words, the states). The Constitution refers to

Congress, the Senate, and the House as plural throughout its text,

even though they are singular nouns. See, e.g., U.S. Const. art. I,

§ 7, cl. 2 (“[U]nless the Congress by their Adjournment prevent its

17
Return, in which Case it shall not be a Law.”); U.S. Const. art. II,

§ 2, cl. 2 (“[T]he Congress may by Law vest the Appointment of such

inferior Officers as they think proper . . . .”). And we reject Peters’s

contention — again unsupported by citation to any authority —

that the term “the United States” began to be used as a reference to

the federal government, instead of the states themselves, only after

the Civil War. See Stanley v. Schwalby, 147 U.S. 508, 521 (1893)

(Field, J., dissenting) (providing examples of how both before and

since “the Civil War, the United States have always been designated

in the plural”); see also Fong Yue Ting v. United States, 149 U.S.

698, 711 (1893) (“The United States are a sovereign and

independent nation . . . .”). Thus, a textual interpretation of Article

II, Section 2, Clause 1 of the United States Constitution does not

support Peters’s claim.

b. Structural Context

¶ 37 An analysis of the very structure of our federalist system of

dual sovereignty dictates a similar conclusion.

¶ 38 Notably, unlike England’s government, the United States is a

federal republic. Gamble v. United States, 587 U.S. 678, 689 (2019)

(“The United States is a federal republic; it is not . . . a unitary state

18
like the United Kingdom.”). “The Constitution limited but did not

abolish the sovereign powers of the States, which retained ‘a

residuary and inviolable sovereignty.”’ Murphy v. Nat’l Collegiate

Athletic Ass’n, 584 U.S. 453, 470 (2018) (quoting The Federalist No.

39, at 245 (James Madison) (Clinton Rossiter ed., 1961)); see also

Heath v. Alabama, 474 U.S. 82, 93 (1985) (“The Constitution leaves

in the possession of each State ‘certain exclusive and very

important portions of sovereign power.’” (quoting The Federalist No.

9, at 55 (Alexander Hamilton) (Jacob Cooke ed., 1961)). “Thus,

both the Federal Government and the States wield sovereign

powers, and that is why our system of government is said to be one

of ‘dual sovereignty.’” Murphy, 584 U.S. at 470 (quoting Gregory v.

Ashcroft, 501 U.S. 452, 457 (1991)); see also Printz v. United States,

521 U.S. 898, 918 (1997) (“It is incontestible that the Constitution

established a system of ‘dual sovereignty.’” (quoting Gregory, 501

U.S. at 457)). And the “administration of a discrete criminal justice

system is among the basic sovereign prerogatives States retain.”

Oregon v. Ice, 555 U.S. 160, 168 (2009). Indeed, Peters does not

dispute this.

19
¶ 39 Recently, the United States Supreme Court stated that, “[a]s

originally understood, then, an ‘offence’ is defined by a law, and

each law is defined by a sovereign. So where there are two

sovereigns, there are two laws, and two ‘offences.’” Gamble, 587

U.S. at 683 (upholding the dual sovereignty doctrine, which allows

a state to prosecute a defendant under state law after the federal

government has prosecuted him for the same conduct under federal

law without violating the Constitution’s ban on double jeopardy);

see also Puerto Rico v. Sanchez Valle, 579 U.S. 59, 62 (2016)

(“[U]nder what is known as the dual-sovereignty doctrine, a single

act gives rise to distinct offenses — and thus may subject a person

to successive prosecutions — if it violates the laws of separate

sovereigns.”). Thus, limiting offenses “against the United States” to

include only federal offenses recognizes the individual states’

sovereignty over their own criminal justice systems.

¶ 40 Indeed, in Colorado, “[t]he governor shall have power to grant

reprieves, commutations and pardons after conviction, for all

offenses except treason, and except in case of impeachment.” Colo.

Const. art. IV, § 7; see §§ 16-17-102 to -103, C.R.S. 2025.

20
c. Historical Considerations

¶ 41 Finally, we turn to historical considerations, looking to “settled

and established practice.” Moore v. Harper, 600 U.S. 1, 32 (2023)

(quoting The Pocket Veto Case, 279 U.S. 655, 689 (1929)) (noting

that such a practice has long been a source of authority in

interpreting the Constitution).

¶ 42 “Historical accounts of the Constitutional Convention of 1787

reveal that the Founders engaged in very little discussion about the

meaning or scope to be given to the President’s pardoning

authority.” Abrams, 689 A.2d at 29 (Terry, J., dissenting); see also

Ex parte Grossman, 267 U.S. 87, 112 (1925) (noting that “[t]here

seems to have been no discussion over the substance of the clause”

at the Constitutional Convention); Ex parte Wells, 59 U.S. (18 How.)

307, 311 (1855) (“In the convention which framed the constitution,

no effort was made to define or change [the meaning of the word

‘pardon’], although it was limited in cases of impeachment.”).

¶ 43 Nevertheless, some of the earliest legislative action taken in

our newly established republic — the Judiciary Act of 1789, ch. 20,

1 Stat. 73, enacted by the First Congress — makes clear that the

phrase “offence against the United States” meant only violations of

21
federal criminal law. See Consumer Fin. Prot. Bureau v. Cmty. Fin.

Servs. Ass’n of Am., Ltd., 601 U.S. 416, 432 (2024) (observing that

actions by the First Congress provide “contemporaneous and

weighty evidence of the Constitution’s meaning” (quoting Bowsher v.

Synar, 478 U.S. 714, 723 (1986))). That act provided that a person

accused of any “offence against the United States” would “be

arrested, and imprisoned or bailed, as the case may be, for trial

before such court of the United States as by this act has cognizance

of the offence.” Judiciary Act of 1789, ch. 20, § 33, 1 Stat. 73, 91.

The same act also created the position of United States Attorney,

who is charged with the duty to prosecute “crimes and offences,

cognizable under the authority of the United States.” Id. § 35, 1

Stat. at 92. Similarly, a year later, the First Congress created a

number of federal crimes in an act entitled “An Act for the

Punishment of certain Crimes against the United States.” Crimes

Act of 1790, ch. 9, 1 Stat. 112. Thus, when providing for the

punishment for crimes or offenses “against the United States,” the

First Congress used the term to mean only the federal government.

¶ 44 Indeed, over one hundred years ago, the United States

Supreme Court said,

22
We have given the history of [Article II, Section
2, Clause 1 of the United States Constitution]
to show that the words “for offenses against
the United States” were inserted by a
Committee on Style, presumably to make clear
that the pardon of the President was to operate
upon offenses against the United States as
distinguished from offenses against the states.

Ex parte Grossman, 267 U.S. at 113. While this statement is

dictum (because the case did not involve an alleged violation of

state law), it nevertheless evinces the generally accepted historical

understanding that the presidential pardon power does not extend

to state offenses.

¶ 45 Finally, and perhaps most telling, we are unaware of — and

can find no historical record of — any instance of a President

pardoning someone for a state offense.

¶ 46 Peters contends otherwise, arguing — once again without any

citation to legal or historical support — that President George

Washington’s July 10, 1795, pardon issued after the Whiskey

Rebellion applied to people who committed “state crimes of arson

and theft.” But Peters is incorrect. The explicit terms of President

Washington’s pardon limited its reach to “all treasons, misprisions

of treason, and other indictable offenses against the United States.”

23
George Washington, Proclamation, in 1 James D. Richardson, A

Compilation of the Messages and Papers of the Presidents 173 (1897)

(emphasis added), reprinted in University of California, Santa

Barbara: The American Presidency Project, https://perma.cc/L3R8-

ZWQJ. President Washington’s pardon does not specifically

mention offenses against the State (or, rather, Commonwealth) of

Pennsylvania, where the Whiskey Rebellion occurred.

¶ 47 In fact, as the People point out, on August 26, 1795, the then

Governor of Pennsylvania issued a separate pardon for “all

treasons, insurrections, arsons, riots and other offences inferior to

riots . . . which may have been and are indictable offences against

the said State of Pennsylvania” engaged in during the “Whiskey

Insurrection.” Thomas Mifflin, Proclamation, in 4 Pennsylvania

Archives, Fourth Series, Papers of the Governors 1785-1817, at 335-

37 (George Reed ed., 1900). Thus, contrary to Peters’s unsupported

assertion, the Whiskey Rebellion pardons bolster, rather than

undercut, the view that presidential pardons are limited to federal

offenses, and it is the sole prerogative of the individual state’s chief

executive to issue a pardon for state offenses.

24
d. Peters’s Additional Contentions

¶ 48 Peters’s additional contentions are similarly unavailing.

¶ 49 She argues that because she could have been charged with a

federal offense for violating state election law, see 52 U.S.C.

§ 20511, the presidential pardon reaches the state offenses with

which she was charged and of which she was convicted. Her

argument is a non sequitur. The State of Colorado did not —

indeed, lacked any authority to — charge her with any federal

offense. This fact itself highlights the nature of our system of dual

sovereignty and dictates against the expansive reading of offenses

“against the United States” Peters urges us to adopt. In short, there

is no basis to conclude that the mere possibility of her being

charged by the federal government with a federal offense transforms

state crimes into offenses “against the United States.”

¶ 50 Peters’s reliance on Ex parte Grossman is also misplaced. In

that case, the United States Supreme Court held that

[n]othing in the ordinary meaning of the words
“offenses against the United States” excludes
criminal contempts. That which violates the
dignity and authority of federal courts such as
an intentional effort to defeat their decrees
justifying punishment violates a law of the

25
United States, and so must be an offense
against the United States.

267 U.S. at 115 (emphasis added) (citation omitted). Thus, the case

stands for the proposition that an offense “against the United

States” is not limited to a violation of statutory law but also

includes a contemptuous violation of an order of a federal court.

Nothing in the United States Supreme Court’s opinion suggests that

the pardon power reaches violations of state law or of state court

orders.

¶ 51 Nor does Peters cite any authority for her bald assertion that

the presidential pardon power extends to protect a person who is

“defending a federal interest.” Again, we have found no instance

where the presidential pardon power has been stretched in such a

way as to invade an individual state’s sovereignty. In any event, as

we discuss more fully below, Peters was not acting pursuant to a

federal duty.

¶ 52 In sum, the President’s pardon has no impact on Peters’s state

law offenses. Accordingly, it cannot and does not deprive the

Colorado state courts of jurisdiction.

26
B. Supremacy Clause Immunity

¶ 53 Peters also contends that the United States Constitution’s

Supremacy Clause shields her from prosecution. This jurisdictional

contention is simply a reiteration of her first substantive claim on

appeal — that the trial court erred by denying her motion to dismiss

because she is immune from state prosecution under the

Supremacy Clause. We disagree with this contention.

1. Applicable Law

¶ 54 Federal officers have long been immune from state

prosecutions for their reasonable and necessary actions in the

discharge of their federal responsibilities. See, e.g., Neagle, 135

U.S. at 75 (holding that a deputy marshal was immune from state

prosecution for murder when he killed a man he suspected was

about to stab a United States Supreme Court Justice); Thomas, 173

U.S. at 284 (concluding that a state court did not have jurisdiction

over criminal prosecution against a federal officer acting pursuant

to a grant of federal authority). This immunity is rooted in the

Supremacy Clause of the United States Constitution, which

provides,

27
This Constitution, and the Laws of the United
States which shall be made in pursuance
thereof; and all Treaties made, or which shall
be made, under the Authority of the United
States, shall be the supreme Law of the Land;
and the Judges in every State shall be bound
thereby, any Thing in the Constitution or Laws
of any State to the Contrary notwithstanding.

U.S. Const. art. VI, cl. 2. “[I]ts implication is that states may not

impede or interfere with the actions of federal executive officials

when they are carrying out federal laws.” Wyoming v. Livingston,

443 F.3d 1211, 1217 (10th Cir. 2006). Supremacy Clause

immunity, when properly invoked, provides an absolute immunity

from prosecution in state courts. See Neagle, 135 U.S. at 75; Long,

837 F.2d at 752.

¶ 55 “[W]e resolve the federal question of absolute immunity based

only on federal law.” Churchill v. Univ. of Colo., 2012 CO 54, ¶ 28

n.7. Notably, however, no published Colorado case addresses a

defendant’s claim of Supremacy Clause immunity from prosecution

in state court. Indeed, the United States Supreme Court has not

decided a Supremacy Clause immunity case since 1920. See

Johnson v. Maryland, 254 U.S. 51 (1920). “Modern Supremacy

28
Clause immunity doctrine has thus largely been developed in the

lower federal courts.” Livingston, 443 F.3d at 1220.

¶ 56 We note that the procedure usually followed in these cases did

not occur here. Typically, Supremacy Clause immunity cases arise

when a state charges a federal official with a crime under state law,

and the official removes the case to federal court under 28 U.S.C.

§ 1442(a) (the federal officer removal statute). See, e.g., Livingston,

443 F.3d at 1226; Long, 837 F.2d at 731. The federal officer

removal statute permits removal to federal district court of any civil

action or criminal prosecution against any officer “of the United

States or of any agency thereof, in an official or individual capacity,

for or relating to any act under color of such office.” 28 U.S.C.

§ 1442(a)(1). In those circumstances, the federal court then

evaluates the allegations against the federal officer to determine

whether the officer has Supremacy Clause immunity. If the federal

court determines the individual does not have immunity, the court

remands the matter back to the state court. See, e.g., Mesa v.

California, 489 U.S. 121, 123-24, 139 (1989) (affirming appellate

court’s order of mandamus requiring the federal district to remand

29
a criminal prosecution to the state court because the defendant was

not entitled to Supremacy Clause immunity).

¶ 57 We are not told why Peters opted not to test her immunity

claim by removing the prosecution to federal court — especially

given that she now asserts the trial court lacked jurisdiction to

resolve her immunity claim. But notwithstanding that challenge to

the trial court’s jurisdiction, her decision not to ask the federal

court to resolve the immunity claim does not deprive us — and did

not deprive the trial court — of the jurisdiction to do so. To the

contrary, “[s]tate courts have long adjudicated . . . whether federal

officers are entitled to Supremacy Clause immunity.” Georgia v.

Meadows, 88 F.4th 1331, 1343 (11th Cir. 2023). And encompassed

within that determination must lie the assessment of whether a

person claiming Supremacy Clause immunity is actually a federal

officer.

2. Standard of Review

¶ 58 We note that the facts underlying Peters’s claim of immunity

do not appear to be disputed. The People do not contest that she

was the Mesa County Clerk and Recorder, and they appear to

concede that Peters had a statutory duty to preserve records

30
involving federal elections under 52 U.S.C. § 20701. Thus, whether

Peters enjoys immunity is a question of law. See Wolf v.

Brenneman, 2024 COA 71, ¶ 21. Our review, therefore, is de novo.

See Edwards v. New Century Hospice, Inc., 2023 CO 49, ¶ 14.

¶ 59 “While we must follow the United States Supreme Court’s

interpretation of federal law, we are not bound by decisions of lower

federal courts.” Monez v. Reinertson, 140 P.3d 242, 245 (Colo. App.

2006). Instead, we look to such decisions for guidance and follow

the analysis that we find persuasive. Cmty. Hosp. v. Fail, 969 P.2d

667, 672 (Colo. 1998) (citing People v. Barber, 799 P.2d 936, 939-40

(Colo. 1990)).

3. Federal Statutory Duty

¶ 60 “It is by now well settled that under In re Neagle, a two-part

test determines whether or not a state court has jurisdiction to

prosecute a federal agent for conduct facially violative of a state’s

criminal code.” Long, 837 F.2d at 744. Under Neagle, a state court

has no jurisdiction “if (1) the federal agent was performing an act

which he was authorized to do by the law of the United States and

(2) in performing that authorized act, the federal agent did no more

31
than what was necessary and proper for him to do.” Long, 837 F.2d

at 744 (citing Neagle, 135 U.S. at 75); see Tanella, 374 F.3d at 147.

¶ 61 But this test presupposes that the prosecuted individual is a

federal officer or agent. Thus, as a threshold matter, we must

decide whether Peters is an individual to whom Supremacy Clause

immunity extends. Notably, Peters does not contend that she is a

federal employee or federal agent. Rather, Peters asserts that

Supremacy Clause immunity extends to any individual acting

pursuant to a statutory duty imposed by federal law. We disagree

as a matter of law.

¶ 62 The cases on which Peters relies in support of this contention

are unavailing. In Hunter v. Wood, 209 U.S. 205, 210 (1908), the

United States Supreme Court extended immunity to a railroad

employee acting under direct federal court order. Peters does not

contend that she was acting pursuant to a federal court order. And

the lower federal court cases Peters cites — Connecticut v. Marra,

528 F. Supp. 381, 383-84 (D. Conn. 1981), and Brown v.

Nationsbank Corp., 188 F.3d 579, 589 (5th Cir. 1999) — extended

immunity to persons acting as agents for federal officers. To the

extent language in Marra could be read to extend immunity to

32
anyone acting “pursuant to federal law,” we agree with the People

that such a proposition is dictum. Marra, 528 F. Supp. at 385

(referencing Ex parte Conway, 48 F. 77 (C.C.D.S.C. 1891), which

involved a construction foreman building a telegraph line under

Congressional authorization). The remaining cases on which Peters

relies concern federal employees or federal officer removal. See

Mesa, 489 U.S. at 125; Neagle, 135 U.S. at 75-76, Tennessee v.

Davis, 100 U.S. 257, 263 (1879); Sowders v. Damron, 457 F.2d

1182, 1186 (10th Cir. 1972); Clifton v. Cox, 549 F.2d 722, 728 (9th

Cir. 1977); Colorado v. Nord, 377 F. Supp. 2d 945, 949 (D. Colo.

2005).

¶ 63 Therefore, at most, Supremacy Clause immunity extends to

federal officers, those acting as an agent for a federal officer, and

those acting pursuant to a federal court order. Peters does not

contend that she falls within any of these categories. Rather, she

contends that she was acting pursuant to a duty imposed by federal

statute — specifically, 52 U.S.C. § 20701, which, as relevant to this

case, required her to “retain and preserve” election records for

twenty-two months. But Peters cites no case, nor are we aware of

any, in which Supremacy Clause immunity has been extended to a

33
state officer acting pursuant to a federal statute. There is simply no

authority for extending immunity that far.

¶ 64 In other words, as a matter of law, Peters is not an individual

who can claim Supremacy Clause immunity. Thus, we have (and

the trial court had) jurisdiction over the prosecution, and the trial

court did not err by denying her motion to dismiss the charges on

Supremacy Clause immunity grounds.6

III. Sufficiency of the Evidence

¶ 65 Peters next contends that there was insufficient evidence to

convict her of attempt to influence a public servant, conspiracy to

commit criminal impersonation, and first degree official

misconduct. We disagree.

A. Standard of Review

¶ 66 “[W]e review the record de novo to determine whether the

evidence before the jury was sufficient both in quantity and quality

to sustain the convictions.” Dempsey v. People, 117 P.3d 800, 807

(Colo. 2005). We view the evidence as a whole and in the light most

6 Even if a federal statute could impose a duty on Peters that would

endow her with immunity, as discussed below, she was not acting
pursuant to any such duty, and thus we would reach the same
conclusion.

34
favorable to the prosecution to determine whether the evidence was

“sufficient to support the conclusion by a reasonable mind that the

defendant was guilty beyond a reasonable doubt.” People v. Griego,

2018 CO 5, ¶ 24. In doing so, we give the prosecution “the benefit

of every reasonable inference which might be fairly drawn from the

evidence.” People v. Perez, 2016 CO 12, ¶ 25 (quoting People v.

Gonzales, 666 P.2d 123, 128 (Colo. 1983)). It is the jury’s role to

weigh the credibility of witnesses and to resolve conflicting

testimony. People v. Poe, 2012 COA 166, ¶ 14. We may not

substitute our judgment for the jury’s or reweigh conflicting

evidence or witness credibility. Id.

B. Analysis

1. Attempt to Influence a Public Servant

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

attempt to influence a public servant 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.

35
§ 18-8-306, C.R.S. 2025. A “[p]ublic servant” is “any officer or

employee of government, whether elected or appointed, and any

person participating . . . in performing a governmental function,”

with the exception of witnesses. § 18-1-901(3)(o), C.R.S. 2025. 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).

¶ 68 Peters acknowledges that the prosecution established that

Brown sent an email to Romero stating that she, Wood, and Peters

would attend the Build. But Peters contends that there was no

evidence Peters made any false representation to Romero because

she neither sent nor was copied on the email.

¶ 69 Notably, at trial the prosecution advanced both a direct theory

of culpability and a complicity theory. A person may be found

guilty of an offense as a complicitor if they are “legally accountable

as principal for the behavior of another constituting a criminal

offense if, with the intent to promote or facilitate the commission of

the offense, he or she aids, abets, advises, or encourages the other

person in planning or committing the offense.” § 18-1-603, C.R.S.

36
2025. A complicitor need not share the mental state required of the

principal; rather, she must act with

(1) the intent to aid, abet, advise, or encourage
the other person in his criminal act or
conduct, and (2) an awareness of
circumstances attending the act or conduct he
seeks to further, including a required mental
state, if any, that are necessary for
commission of the offense in question.

People v. Childress, 2015 CO 65M, ¶ 34. Complicity liability may be

established through reasonable inferences based on other

established facts and circumstances. People v. Chavez, 190 P.3d

760, 769 (Colo. App. 2007).

¶ 70 Peters instigated the scheme that resulted in Brown sending

the email to Romero mispresenting that Wood would attend the

Build in the capacity of a Mesa County employee. Peters obtained

security credentials for Wood by falsely representing to Underwood

that Wood was a Mesa County employee who needed computer

access. She also made false statements to her staff about Wood

being an employee who would attend the Build, which resulted in

Brown sending the email to Romero saying as much. In other

words, at the very least, Peters intended to aid and encourage

others in deceiving Romero.

37
¶ 71 In any event, the jury could have found Peters directly

culpable even if she did not send the email herself. “[T]he statute

does not require that the offender commit the deception themself,

only that they use some sort of plan or method to deceive the public

servant.” People v. Hupke, 2024 COA 73, ¶ 11 (cert. granted Dec.

23, 2024). We view — as we must — the evidence regarding

Peters’s spearheading of the scheme in the light most favorable to

the prosecution, see Griego, ¶ 24, and conclude that the evidence

was more than sufficient to sustain the conviction as to the attempt

to influence Romero. See Hupke, ¶ 11.

¶ 72 Peters also contends that the evidence was insufficient on this

offense as to Underwood because Peters — not Underwood — made

the decision to get Wood access to the computer system. She

contends that Underwood admitted that he merely carried out a

task and was not the one who made the decision to grant Wood

access; thus, she argues, she could not be guilty of attempting to

influence Underwood’s “decision.”

¶ 73 Peters parses Underwood’s testimony too much. Peters

obtained security credentials for Wood by falsely representing to

Underwood that Wood was a Mesa County employee who needed

38
system access. And Underwood testified that he would not have

given Wood access had he known that Peters had misrepresented

that Wood was a Mesa County employee. Thus, in context,

Underwood testified that he decided to carry out the task of giving

Wood access to the system based on Peters’s misrepresentation.

Thus, the evidence was sufficient to sustain the conviction as to the

attempt to influence Underwood.

¶ 74 Finally, Peters contends that the evidence was insufficient to

establish that she attempted to influence Casias because he did not

testify about any decision, vote, opinion, or action he took during

the Build as a result of the misrepresentation about Wood’s

identity. But Casias testified that (1) he proceeded with the Build

because he thought Wood was a Mesa County employee and (2) he

would not have conducted the Build had he known that an

“unauthorized” person (a non-Mesa County employee) was present.

Both of these were official actions on Casias’s part. Thus, the

evidence was sufficient to sustain the conviction as to the attempt

to influence Casias.

39
2. Conspiracy to Commit Criminal Impersonation

¶ 75 A person commits conspiracy to commit criminal

impersonation “if, with the intent to promote or facilitate its

commission, he agrees with another person or persons that they, or

one or more of them, will engage in conduct which constitutes”

criminal impersonation, or “he agrees to aid the other person or

persons in the planning or commission of” criminal impersonation,

and the defendant or co-conspirator performs an overt act to

pursue the conspiracy. § 18 2 201(1), C.R.S. 2025. As relevant to

Peters’s actions, and at the time she committed this offense in May

2021, criminal impersonation occurred when a person knowingly

[a]ssume[d] a false or fictitious identity or
capacity, legal or other, and in such identity or
capacity . . . [p]erform[ed] an act that, if done
by the person falsely impersonated, might
subject such person to an action or special
proceeding, civil or criminal, or to liability,
charge, forfeiture, or penalty.

§ 18-5-113(1)(b)(I), C.R.S. 2021. Criminal impersonation under this

statute was a class 6 felony in May 2021. § 18-5-113(2), C.R.S.

2021. Conspiracy to commit a class 6 felony is also a class 6

felony. § 18-2-206(1), C.R.S. 2025.

40
a. Recent Statutory Amendment

¶ 76 As a threshold matter, we note that, in her opening brief,

Peters sets forth the statute as it currently exists, not as it existed

at the time of her offense in May 2021. That year, the General

Assembly amended the statute such that the offense remains a

class 6 felony if the act of impersonation “subjects [the person

falsely impersonated] to an action or special proceeding, civil or

criminal, or to liability, charge, forfeiture, or penalty,” but the

legislature lowered the offense to a class 1 misdemeanor if it only

“might subject” the person to such risks. Ch. 462, sec. 233, § 18-5-

113, 2021 Colo. Sess. Laws 3182-83 (emphasis added). This

statutory change, however, was not effective until March 1, 2022,

and only applied to offenses committed on or after that date. Sec.

803, 2021 Colo. Sess. Laws at 3331-32.

¶ 77 Thus, the statutory language on which Peters relied in her

initial briefing was not the operative language applicable to her

case. Compounding Peters’s misstatement of the law, the People

failed to correct it in their answer brief. Under the party

presentation principle, “we rely on the parties to frame the issues

for decision” based on “the premise that the parties know what is

41
best for them, and are responsible for advancing the facts and

arguments entitling them to relief.” Compos v. People, 2021 CO 19,

¶ 35 (quoting Greenlaw v. United States, 554 U.S. 237, 243-44

(2008)).

¶ 78 To this end, in reliance on the parties’ apparent agreement

regarding the operative statutory language, we spent considerable

time at oral argument exploring what appeared to be a significant

charging error. Specifically, it appeared that the prosecution had

charged Peters with the misdemeanor language — i.e., “might

subject” — but treated the charge as a felony. No one at oral

argument informed this court of the intervening statutory

amendment.

¶ 79 Not until over a week after the oral argument did the People

bring to our attention the statutory amendment. We then gave

Peters an opportunity to respond to this new information. It is now

clear that, notwithstanding the extensive inquiry of the parties

during oral argument, Peters was charged using the correct

operative language, and the offense was properly identified as a

class 6 felony.

42
¶ 80 Having now received briefing on the proper statutory language,

we turn to Peters’s challenge to the sufficiency of the evidence to

convict her of the charge as it existed in May 2021.

b. Sufficiency of the Evidence Under the 2021 Statute

¶ 81 Peters challenges the sufficiency of the evidence on this

conviction only on the grounds that there was no evidence that

Wood might have been subjected to liability if Wood himself had

used the Mesa County badge to attend the Build.7 We disagree.

¶ 82 Wood was not a Mesa County employee and thus, according to

Romero’s email, was not “authorized” to attend the Build.

Moreover, the evidence showed that Wood was the subject of a

criminal investigation as a result of the use of his credentials to

access the room where the Build occurred. This is ample evidence

that he might have been subject “to an action or special proceeding,

civil or criminal, or to liability, charge, forfeiture, or penalty.”

§ 18-5-113(1)(b)(I), C.R.S. 2021. Thus, the evidence was sufficient

to support the conviction for conspiracy to commit criminal

impersonation.

7 Peters does not challenge the sufficiency of the evidence

establishing the existence of a conspiracy.

43
3. First Degree Official Misconduct

¶ 83 As relevant here,

[a] public servant commits first degree official
misconduct if, with intent to obtain a benefit
for the public servant or another, . . . he or she
knowingly:

(a) [c]ommits an act relating to his office but
constituting an unauthorized exercise of his
official function; or

(b) [r]efrains from performing a duty imposed
upon him by law; or

(c) [v]iolates any statute or lawfully adopted
rule or regulation relating to his office.

§ 18-8-404(1), C.R.S. 2025.

¶ 84 Peters contends that the evidence was insufficient because

there was no evidence that she intended to obtain a benefit for

herself or anyone else. We disagree.

¶ 85 When viewed in the light most favorable to the prosecution,

see Griego, ¶ 24, the evidence demonstrated that Peters intended to

benefit Dr. Frank, his supporters, and herself by providing forensic

images of the elections server to nongovernmental actors to

substantiate a theory of election fraud. The evidence was therefore

sufficient to sustain this conviction.

44
IV. Evidentiary Exclusions

¶ 86 Peters asserts that the trial court deprived her of a meaningful

opportunity to present a complete defense by excluding various

pieces of evidence. We discern no error.

A. Additional Background

¶ 87 First, the trial court ruled pretrial that Peters could not

introduce evidence that her motive for her actions that led to the

criminal charges was to preserve election records pursuant to a

statutory duty.8 Similarly, the court ruled that she could not offer

evidence about the functionality of the voting equipment. The court

opined that such evidence was irrelevant because it did not make

any material fact more or less likely.

¶ 88 Consistent with this ruling, the trial court excluded evidence

during trial about the alleged reasons for Peters’s criminal conduct,

8 Notably, Peters continuously confuses the mens rea of intent with

motive. True, “with intent” or “intentionally” is the mens rea — i.e.,
the required mental state for criminal culpability, see, e.g.,
Copeland v. People, 2 P.3d 1283, 1286 (Colo. 2000) — for several of
Peters’s offenses. And in this context, a person acts “intentionally”
or “with intent” when their “conscious objective is to cause the
specific result proscribed by the statute.” § 18-1-501(5), C.R.S.
2025. But whether Peters had the requisite mental state for each
charge is a different question than her reasons — i.e., her motive —
for committing the offenses.

45
including Peters’s (1) alleged belief that Hayes was a governmental

informant; (2) statutory duty to preserve election records;

(3) purported concerns about the functionality of the elections

system; and (4) claimed investigation into the destruction of election

records. The court ruled this evidence was irrelevant and would be

misleading and confusing to the jury.

¶ 89 The court also ruled that Peters could not argue that she was

authorized to use deception to investigate her allegations regarding

the elections system functionality and destruction of election

records because no such affirmative defense existed and no law

permitted her to use deception to investigate purported illegal

activity.

¶ 90 Second, Peters sought to admit two audio recordings of the

meeting that took place in her office. The first audio recording was

made by Stephanie Wenholz, an elections administrator in Mesa

County. This recording started when Wenholz entered the meeting

and ended when she left. Peters contended that this recording was

relevant because the prosecution posited that the conspiracy to

provide outsider access to the Build originated at this meeting, yet

nothing about this conspiracy was discussed on Wenholz’s

46
recording.9 A different person made the second audio recording at

the meeting, which began an hour after Wenholz left, when issues

such as election fraud and canvassing were supposedly discussed.

¶ 91 The court admitted Wenholz’s recording but excluded the

second. It found that the second recording was irrelevant and that

it contained prejudicial hearsay. The court further concluded that

the rule of completeness, see CRE 106, was inapplicable because

the Wenholz recording was admitted and the second recording was

neither created by Wenholz nor a completion of Wenholz’s

recording. See People v. Montoya, 2024 CO 20, ¶ 48 (“The purpose

of [CRE] 106 is to prevent a party from misleading a jury by

excluding portions of a statement that would clarify or explain the

part already received.”) (emphasis added). Rather, it was simply a

recording of a different part of the meeting.

¶ 92 Third, David Stahl, a Dominion customer service

representative, testified that, to “combat disinformation,” it was

important for election administrators to get out facts about how the

9 At trial, Wenholz testified that the conspiracy began at the end of

her recording and acknowledged that Peters may have asked people
to commit crimes after she left.

47
administrators’ election management systems work. The

prosecution objected to the following two questions: (1) “Which

facts? Your facts?” and (2) “So, Dominion’s position is — that the

system works. The software is fully compliant with Federal and

State law. And we don’t need any information to the contrary.

True?” The court sustained the prosecutor’s objections to both

queries, ruling that the former was both asked and answered and

argumentative, and the latter sought irrelevant information.

¶ 93 Finally, the court limited Peters’s counsel’s ability to cross-

examine Romero and Casias regarding a purported Dominion and

SOS election scheme to erase evidence of online manipulation of the

voting machines during elections, finding that the proposed

questioning sought irrelevant information, any probative value of

which was substantially outweighed by the danger of unfair

prejudice.

B. Standard of Review and Applicable Law

¶ 94 We review a trial court’s evidentiary rulings for an abuse of

discretion. People v. Rath, 44 P.3d 1033, 1043 (Colo. 2002). A

court abuses its discretion when its ruling is based on a

48
misapplication of the law or is manifestly arbitrary, unreasonable,

or unfair. People v. Vergari, 2022 COA 95, ¶ 16.

¶ 95 “The right to present a defense . . . is not absolute.” People v.

Owens, 2024 CO 10, ¶ 139. A court is required only to allow the

defendant “to introduce all relevant and admissible evidence.” Id.

¶ 96 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 generally admissible.

CRE 402. Relevant evidence may be excluded, however, if “its

probative value is substantially outweighed by the danger of unfair

prejudice.” CRE 403. “Because the balance required by CRE 403

favors admission, [we] must afford the evidence the maximum

probative value attributable by a reasonable fact finder and the

minimum unfair prejudice to be reasonably expected.” Rath, 44

P.3d at 1043.

C. Analysis

1. Peters’s Motive

¶ 97 Peters contends that the trial court erred by excluding

evidence related to her statutory duty to preserve election records,

49
see 52 U.S.C. § 20701, and her motive to preserve such records and

investigate potential election fraud. We disagree.

a. Duty to Preserve Election Records

¶ 98 The undisputed evidence showed that, before the Build, Brown

had already made several backups of the election records. In

addition, at Peters’s behest, Hayes had created a forensic image of

the voting equipment server before the Build. And Peters was not

charged for any crimes arising out of either of those acts. In other

words, she had fulfilled her duty as Clerk and Recorder to preserve

the election records days before the Build.

¶ 99 Thus, Peters’s statutory duty to retain and preserve election

records and her actions fulfilling that duty had no bearing on

whether she engaged in the illegal conduct for which she was

charged. Accordingly, the trial court did not abuse its discretion by

prohibiting Peters from introducing evidence regarding her motive

to retain the election records.

50
b. Duty to Investigate Election Fraud

¶ 100 Peters’s claim that she should have been permitted to offer

evidence regarding her investigation of election fraud is equally

meritless.10

¶ 101 As noted, 52 U.S.C. § 20701 imposes a duty on election

officials like Peters to “retain and preserve” election records for

twenty-two months. When construing a statute, we look “to the

language of the statute, giving its words and phrases their plain

and ordinary meanings,” and must read those words and phrases

“according to the rules of grammar and common usage.” McCoy v.

People, 2019 CO 44, ¶ 37. Doing so, we conclude that the words

“retain” and “preserve” do not encompass the term “investigate.”

“Retain” means “to keep in possession or use.” Merriam-Webster

10 We specifically reject Peters’s challenge to the exclusion of three

expert reports she claims confirm unlawful features of the voting
system because she fails to identify — and we cannot ascertain —
where the record reflects any effort to admit this evidence at trial or
where the trial court purportedly ruled the evidence inadmissible.
See People v. Graybeal, 155 P.3d 614, 620 (Colo. App. 2007) (“This
court ‘will not search through briefs to discover what errors are
relied on, and then search through the record for supporting
evidence.’” (quoting Mauldin v. Lowery, 255 P.2d 976, 977 (Colo.
1953))). Rather, she merely cites exhibits attached to her response
to a motion to quash a subpoena, in which she did not ask the
court to admit the expert reports.

51
Dictionary, https://perma.cc/GQH2-R32N. “Preserve” means “to

keep safe from injury, harm, or destruction.” Merriam-Webster

Dictionary, https://perma.cc/9S9B-FAF8.

¶ 102 Looking further at the statutory scheme, 52 U.S.C. § 20702

provides the punishment for when a person “willfully steals,

destroys, conceals, mutilates, or alters any record or paper required

by section 20701 of this title to be retained and preserved.” The

statute says nothing about neglecting to investigate such

destruction. Had Congress intended to impose a duty on the officer

of election (as opposed to law enforcement officers) to also

investigate destruction of election records, it could have said so.

See Howard v. People, 2020 CO 15, ¶ 26 (“If that was the

legislature’s intent, then it would have said so.”). It didn’t.

¶ 103 Simply put, by their plain language, neither § 20701 nor

§ 20702 imposes any duty on the election official to investigate the

destruction of such records. Consequently, evidence related to

Peters’s claim that she was motivated by this duty was irrelevant.

¶ 104 To the extent Peters, relying on section 18-1-701, C.R.S. 2025,

asserts that investigating the destruction of election records was

52
related to her statutory affirmative defense of execution of a public

duty, we disagree.

¶ 105 Section 18-1-701 provides, as relevant here, that “conduct

which would otherwise constitute an offense is justifiable and not

criminal when it is required or authorized by . . . [l]aws defining

duties and functions of public servants.” § 18-1-701(1)-(2)(a).

¶ 106 Relatedly, the cases on which Peters relies to support her

contention that she could use deception to uncover an illegal act

cannot bear the weight she places on them. For example, the cases

she cites involving entrapment, United States v. Russell, 411 U.S.

423, 436 (1973), and Sorrells v. United States, 287 U.S. 435, 441-42

(1932), are inapposite because she is not a law enforcement officer,

nor does she assert that she was engaging in this deception to lay a

trap for others to walk into. And the cases holding that a law

enforcement officer is permitted to engage in deception as a law

enforcement investigation technique, People v. Morley, 725 P.2d

510, 515 (Colo. 1986), and Baucom v. Martin, 677 F.2d 1346, 1347

53
(11th Cir. 1982), are equally inapplicable because, again, Peters is

not a law enforcement officer.11

¶ 107 Peters also can find no harbor in the cases that she cites

involving private citizens going undercover to ferret out housing

discrimination or trademark violations. See Havens Realty Corp. v.

Coleman, 455 U.S. 363, 373 (1982); Gidatex, S.r.L. v. Campaniello

Imps., Ltd., 82 F. Supp. 2d 119, 122 (S.D.N.Y. 1999). Neither of

these cases involved a criminal prosecution or an allegation that the

private citizens involved deceived or otherwise attempted to

influence a public servant.

¶ 108 In sum, because the evidence Peters sought to admit had no

relevance, the court did not abuse its discretion by excluding it.

11 Peters also relies on Morones-Quinones v. Holder, 591 F. App’x

660, 660 (10th Cir. 2014), for the proposition that the benefit a
criminal impersonation perpetrator seeks to gain by deceit under
section 18-5-113(1)(e), C.R.S. 2010 (amended 2011; subsequent
version at section 18-5-113(1)(b)(II), C.R.S. 2021), must be
unlawful. This case is inapplicable because Peters was not
convicted under this subsection of the criminal impersonation
statute for her conspiracy to commit criminal impersonation
charge. As noted, she was charged under section 18-5-113(1)(b)(I),
C.R.S. 2021.

54
2. Biased Prosecution Witnesses

¶ 109 Peters contends that the trial court improperly excluded

evidence about a scheme she alleged existed between Dominion and

the SOS to install new voting software, which would erase evidence

that the voting machines were purportedly connecting to the

internet and being manipulated during elections while votes were

being tabulated. Peters contends that this limitation on her cross-

examination of Romero and Casias violated her Sixth Amendment

right to confrontation. We disagree because, for reasons already

discussed, this evidence goes only to Peters’s motive for her actions

and was thus irrelevant to her charges. Therefore, the trial court

did not abuse its discretion by limiting Peters’s cross-examination

on this issue. See People v. Jaramillo, 183 P.3d 665, 670 (Colo.

App. 2008) (concluding that limiting cross-examination to relevant

evidence was not an abuse of discretion).12

12 Nor does Peters advance any argument as to why it was

erroneous for the trial court to quash a subpoena to Dominion’s
vice president. She merely notes it happened. So we do not
address it. See People v. Gingles, 2014 COA 163, ¶ 29.

55
V. Affirmative Defenses

¶ 110 Next, Peters contends that the trial court erred by denying her

request to instruct the jury on the affirmative defenses of

Supremacy Clause immunity and execution of a public duty. We

discern no error.

A. Supremacy Clause Immunity

¶ 111 We have already concluded that, as a matter of law, Peters was

not immune from prosecution under the Supremacy Clause.

Because she was not entitled to claim immunity, the trial court

could not have erred by not instructing the jury on the defense.

B. Execution of a Public Duty

¶ 112 We also reject Peters’s contention that the trial court erred by

denying her request to instruct the jury on the statutory affirmative

defense of execution of a public duty. See § 18-1-701.

¶ 113 Peters again relies on 52 U.S.C. § 20701, which she asserts

“expressly required election officials like Ms. Peters to preserve

election records.” However, we have previously concluded that the

trial court correctly determined that Peters had already discharged

that duty and, thus, her actions were not taken in pursuit of that

duty. In other words, there was no evidence that any of Peters’s

56
actions underlying the charges against her were related to her duty

to preserve the records that were already preserved. Thus, Peters

cannot show that she was entitled to a jury instruction on this

affirmative defense because, as a matter of law, it was not available

to her.13

VI. Notice of the Charges Against Peters

¶ 114 Peters next contends that the trial court erred by denying her

motion to dismiss the indictment because it failed to give her notice

of the charges with respect to the three counts of attempting to

influence a public servant. She argues that each count failed to

identify the “decision, vote, opinion, or action” that Peters was

trying to influence. We again discern no error.

¶ 115 “We review the sufficiency of a charge in an information de

novo.” People v. Perez-Hernandez, 2013 COA 160, ¶ 30.

¶ 116 A charging document must provide the defendant with notice

of the charges that is sufficient to permit the preparation of an

13 When the trial court ruled that her duty to preserve had been

discharged, her trial counsel expressly disavowed any reliance on
making an image of the records and, instead, argued that her
charged conduct was pursuant to her duty to investigate. Because
we have found that she did not have such a duty, she was not
entitled to the affirmative defense instruction on this ground either.

57
adequate defense, and it must protect the defendant from further

prosecution for the same offense. People v. Russell, 36 P.3d 92, 95

(Colo. App. 2001); see Crim. P. 7(b)(2); see also Esquivel-Castillo v.

People, 2016 CO 7, ¶ 10 (“[T]he modern trend of testing the

sufficiency of an information [is] based on the fundamental

objectives it is meant to serve, rather than according to any

technical pleading requirements of the common law.”). If the

charging document identifies the essential elements of the crime

charged in the language of the statute, it is legally sufficient. See

People v. Melillo, 25 P.3d 769, 778 (Colo. 2001).

¶ 117 Contrary to Peters’s assertion, there is no requirement that the

charging instrument identify the particular decision, vote, opinion,

or action that Peters was trying to influence. Peters cites no case,

and we are aware of none, that says otherwise. But even if there

was such a requirement, the charging document here gave more

than sufficient detail, as it laid out the core findings of the

investigation. Specifically, the charging document described

Underwood’s creation of security credentials for Wood, as well as

Romero’s and Casias’s decisions to allow the Build to proceed.

58
Thus, we conclude that the charging document provided Peters with

more than sufficient notice of the charges. See id.; § 18-8-306.

VII. “Security Breach” Comments

¶ 118 Peters contends that the prosecutor violated her due process

rights by misleading the jury into believing that she caused a

“security breach” because her phone contained photographs of

passwords that later appeared online, without telling jurors that the

passwords were redacted and useless.14

¶ 119 We first note that Peters asks us to take judicial notice that

the redacted passwords do not appear on the website the witness

referenced. She also relies on purported news articles that were

published after the trial. Because these documents are not in the

appellate record, we cannot consider them. See Fendley v. People,

107 P.3d 1122, 1125 (Colo. App. 2004) (“We are limited to the

record presented . . . .”). (In any event, whether that website

currently contains material it is alleged to have contained in the past

14 The People characterize this argument as a prosecutorial

misconduct argument. But that is not the posture of Peters’s
argument. We address her claim in the posture she presents it,
rather than the People’s recasting of it. That being said, the same
defects in Peters’s due process claim would also doom this issue as
a prosecutorial misconduct claim.

59
is irrelevant. Nor is it a proper area for judicial notice, as it is not “a

fact [that is] not subject to reasonable dispute.” CRE 201.)

¶ 120 Peters argues that the leak of the passwords cannot accurately

be called a security breach because the passwords were redacted

and additional authentication credentials were needed to obtain

access to any secure or nonpublic information. Again, the appellate

record does not support those assertions. In any event, Peters

conflates a security breach with a system breach. In other words,

the mere fact that multiple authentication credentials are needed to

access a system does not mean that unauthorized disclosure of one

of those credentials is not a security breach.

¶ 121 Moreover, the prosecutor’s discussion of the release of the

passwords was, in context, wholly appropriate. The discovery of

this leak is what led to the investigation that ultimately resulted in

Peters being charged in this case. The references to a security

breach, therefore, were fair comments on the evidence in the case.

60
¶ 122 Because the prosecutor’s references to a security breach were

a reasonable description related to the leak of the passwords, which

itself was helpful information to the jury, we discern no error.15

VIII. Failure to Hold a Hearing Regarding Purported Improper Juror
Conduct

¶ 123 Peters contends that the trial court erred by denying her

request for a post-trial hearing to determine if a juror’s bias affected

the verdict. Again, we disagree.

¶ 124 According to the exhibit attached to Peters’s post-trial motion,

a juror told a defense investigator that the telephone line to her

business was cut during trial, costing her business $4,000. The

juror mentioned that initially she was concerned that it was related

to her jury service but ultimately did not say who she thought was

responsible.

¶ 125 “CRE 606(b) is a broad ban against the solicitation and use of

juror testimony, affidavits, or statements addressing the validity of

15 Peters contends, in conclusory fashion, that this evidence

violated the court’s pretrial order excluding CRE 404(b) evidence
and makes a passing reference to a comment by the prosecution
comparing the release of the passwords to “Apollo 13.” Of course,
as the trial court properly informed the jury, a prosecutor’s
statements are not evidence. In any event, these are undeveloped
arguments that we decline to consider. See Gingles, ¶ 29.

61
a jury verdict.” Stewart v. Rice, 47 P.3d 316, 320 (Colo. 2002).

CRE 606(b) provides three exceptions: (1) improper exposure to

extraneous prejudicial information; (2) improper outside influence

on any juror; and (3) mistakes concerning the verdict form.

¶ 126 Whether an exception to CRE 606(b) applies is a legal question

we review de novo. Cf. Clark v. People, 2024 CO 55, ¶ 65.

¶ 127 The trial court properly determined that CRE 606(b) precluded

a hearing. In her post-trial motion, Peters did not assert that any

CRE 606(b) exception applied, and her argument that a hearing was

required was based solely on speculation that the juror believed she

was being targeted by someone associated with Peters. She

similarly identifies no applicable CRE 606(b) exception to support

her conclusory assertion that the juror was “biased,” instead relying

on inapplicable cases about jurors lying during voir dire. Thus,

Peters has failed to demonstrate any error regarding the trial court’s

handling of this issue.

IX. Prosecutorial Misconduct

¶ 128 Next, Peters contends that the prosecutor committed

misconduct during rebuttal closing argument. Specifically, she

contends that the prosecutor misstated the evidence when she said,

62
Let’s talk about the beginning of this scheme.
April 23rd Dr. Frank says to the Defendant,
wouldn’t it be a feather in your cap to reveal all
this fraud? And she’s like, you know what?
I’m gonna go out on a limb. Let me invite you
into the [Build]. And he’s like, whoa, whoa,
whoa. That would be illegal but I have the best
guy in the country.

(Emphasis added.) Because her defense was based, in part, on her

claim that she did not know letting an outsider into the Build would

be illegal, she contends that this misstatement warrants reversal.

We disagree.

¶ 129 We engage in a two-step analysis when reviewing claims of

prosecutorial misconduct. Wend v. People, 235 P.3d 1089, 1096

(Colo. 2010). First, we determine whether the conduct was

improper based on the totality of the circumstances. Id. In doing

so, we evaluate claims of improper argument in the context of the

argument as a whole and in light of the evidence before the jury.

People v. Conyac, 2014 COA 8M, ¶ 132. Next, if we identify any

misconduct, we consider whether it warrants reversal under the

applicable standard. Wend, 235 P.3d at 1096.

¶ 130 A prosecutor may not intentionally misstate the evidence.

Martinez v. People, 244 P.3d 135, 141 (Colo. 2010). However,

63
“because arguments delivered in the heat of trial are not always

perfectly scripted, reviewing courts accord prosecutors the benefit of

the doubt when their remarks are ambiguous or simply inartful.”

People v. Samson, 2012 COA 167, ¶ 30.

¶ 131 We note that trial counsel did not object to the prosecutor’s

statement. Consequently, we will reverse only if any error was

plain, meaning that it was both obvious and substantial. Hagos v.

People, 2012 CO 63, ¶ 14. An error is obvious if the act or omission

challenged on appeal contravened a clear statutory command, a

well-settled legal principle, or Colorado case law. Scott v. People,

2017 CO 16, ¶ 16. And an error is substantial if it “so undermined

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

reliability of the judgment of conviction.” Id. at ¶ 15.

¶ 132 We cannot say that the asserted error is plain. Contrary to

Peters’s implication, we are not persuaded that this fleeting

comment is what convinced the jury that Peters knew her behavior

was unlawful. Quite the contrary, the evidence of Peters’s

knowledge in this regard is legion: She excluded her employees from

the meeting once the discussion turned to this; she ordered her

employee to turn off the cameras in the room where the voting

64
machines were and turn them back on after the Build; she set

Wood up as a middle man, securing false credentials for him and

then surreptitiously having Hayes use those credentials; and she

affirmatively misstated to Romero and Casias that “Wood” (actually

Hayes) was a Mesa County employee. The evidence of her

knowledge of the illegality of her conduct is so overwhelming, we

simply cannot say that the prosecutor’s statement (even if improper)

had any impact on the verdict, let alone an impact so great as to

cause serious doubt about the reliability of the judgment of

conviction.

X. Classification of Conspiracy to Commit Criminal
Impersonation

¶ 133 Peters next contends that her conviction for conspiracy to

commit criminal impersonation was incorrectly entered as — and

she was incorrectly sentenced for — a felony, while the offense on

which the jury was instructed, and of which it found her guilty, was

a misdemeanor. She therefore contends that her felony conviction

cannot stand.

¶ 134 As noted above, this argument relies on statutory language

that did not yet exist at the time of Peters’s offense. See supra Part

65
III.B.2.a. The indictment set forth the charge in the language of the

statute as it existed at the time of her offense, and the jury was

instructed with that language. At the time she committed the

offense, it was a class 6 felony.

¶ 135 In response to the post-oral-argument briefing on this point,

Peters argues that she is entitled to the benefit of the ameliorative

legislation. This once again misstates the law. Where the General

Assembly expressly gives amendatory legislation only prospective

effect, those amendments, even if ameliorative, do not benefit a

defendant who committed the offense before the operative date in

the legislation. People v. Stellabotte, 2018 CO 66, ¶ 29.

¶ 136 The statute was not mischaracterized in the charging

document or the mittimus. Entry of a conviction for a class 6 felony

was, therefore, proper.

XI. Sentencing

¶ 137 Finally, Peters contends that the trial court erred during

sentencing because it (1) considered only factors favorable to the

prosecution; (2) violated her free speech rights; (3) violated her

Eighth Amendment rights; and (4) improperly considered her

66
contempt conviction. Because we agree with the second contention,

we need not address the other three.

A. Standard of Review

¶ 138 We review a trial court’s imposition of a sentence within the

statutory range for an abuse of discretion because the trial court’s

“familiarity with the facts of the case” places it “in the best position

to fix a sentence that reflects a balance of the relevant

considerations.” People v. Vigil, 718 P.2d 496, 507 (Colo. 1986).

¶ 139 “However, we review constitutional challenges to sentencing

determinations de novo.” People v. Jaso, 2014 COA 131, ¶ 8.

B. Analysis

¶ 140 Peters contends that the trial court violated her First

Amendment right under the United States Constitution and her

right under article II, section 10 of the Colorado Constitution

because it punished her based on her protected speech regarding

allegations of election fraud. We agree.

¶ 141 During sentencing the court said,

There are many things in my mind that are
crystal clear about this case. You are no hero.
You abused your position and you’re a
charlatan who used and is still using your
prior position in office to [peddle] a snake oil

67
that’s been proven to be junk time and time
again. In your world, it’s all about you.

The court later said,

So the damage that is caused and continue[s]
to be caused is just as bad, if not worse, than
the physical violence that this court sees on an
all too regular basis. And it’s particularly
damaging when those words come from
someone who holds a position of influence like
you. Every effort to undermine the integrity of
our elections and public’s trust in our
institutions has been made by you. You’ve
done it from that lectern. The voting public
provided you with everything you’ve done has
been done to retain control influence [sic]. The
damage is immeasurable. And every time it
gets refuted, every time it’s shown to be false,
just another [tale] is weaved.

¶ 142 As the People note, Peters did not object during sentencing to

the trial court’s statements. Accordingly, we will reverse only if any

error was plain. Hagos, ¶ 14.

¶ 143 It is well settled that the First Amendment generally prohibits

punishing someone for their protected speech. “[A] court may not

punish an individual by imposing a heavier sentence for the

exercise of [F]irst [A]mendment rights. . . . A sentence based to any

degree on activity or beliefs protected by the [F]irst [A]mendment is

constitutionally invalid.” United States v. Lemon, 723 F.2d 922,

68
937-38 (D.C. Cir. 1983). In Delaware v. Dawson, 503 U.S. 159, 165

(1992), for example, the United States Supreme Court held that,

while “the Constitution does not erect a per se barrier to the

admission of evidence concerning one’s beliefs and associations at

sentencing simply because those beliefs and associations are

protected by the First Amendment,” a sentencing court goes too far

if it considers such speech or association that is not relevant to the

sentencing.

¶ 144 Courts have affirmed sentences premised on speech or

associational activity when it was relevant to the sentencing

decision. See, e.g., United States v. Stewart, 686 F.3d 156, 170 (2d

Cir. 2012) (explaining that the defendant’s public statements were

relevant sentencing considerations because they demonstrated her

lack of remorse and belief that her previous sentence was not

serious); United States v. Simkanin, 420 F.3d 397, 419 (5th Cir.

2005) (noting the district court’s finding that the defendant’s

“membership in a group with radical views rejecting the laws of the

United States and . . . professed beliefs that he is not required to

abide by the tax laws would lead him to commit other tax-related

crimes”); People v. Tresco, 2019 COA 61, ¶ 28 (“[W]e conclude that

69
evidence of gang affiliation is not per se inadmissible during

sentencing if it is related to the nature of the offense and the

defendant’s character, not merely his abstract beliefs.”); State v.

Warfield, 34 P.3d 37, 40 (Idaho Ct. App. 2001) (holding that, in

imposing sentence, the trial court properly considered the

defendant’s statement that he spared the victim’s life only because

she was white and explaining that the defendant’s “racist belief

system was relevant in assessing the danger he present[ed] to

society, a factor that is unquestionably legitimate for consideration

by a sentencing court”); State v. Schreiber, 2002 WI App 75, ¶ 17

(concluding that the trial court did not err by considering the

defendant’s poetry in imposing sentence because the poems

reflected the defendant’s violation of his parole condition that he

refrain from gang activity).

¶ 145 In Colorado, sentencing courts are to consider “the nature of

the offense, the character and rehabilitative potential of the

offender, the development of respect for the law and the deterrence

of crime, and the protection of the public.” People v. Leske, 957

P.2d 1030, 1043 (Colo. 1998) (quoting People v. Fuller, 791 P.2d

702, 708 (Colo. 1990)); see also § 18-1-102.5, C.R.S. 2025

70
(enumerating the purposes of the Colorado Criminal Code with

respect to sentencing). Here, the trial court’s comments about

Peters’s belief in the existence of 2020 election fraud went beyond

relevant considerations for her sentencing. Her offense was not her

belief, however misguided the trial court deemed it to be, in the

existence of such election fraud; it was her deceitful actions in her

attempt to gather evidence of such fraud. Indeed, under these

circumstances, just as her purported beliefs underlying her motive

for her actions were not relevant to her defense, the trial court

should not have considered those beliefs relevant when imposing

sentence.

¶ 146 To be sure, many of the trial court’s statements indicated

wholly appropriate considerations. The court’s view that Peters was

motivated by self-promotion and self-interest, for example, was fully

within the court’s discretion to articulate and consider, as was her

evident lack of remorse.16 But several specific statements can be

16 We recognize that when a defendant chooses to remain silent and

invokes their constitutional right against self-incrimination at trial
and sentencing, “a trial court cannot constitutionally consider
[their] lack of an expression of remorse as an aggravating
circumstance.” People v. Young, 987 P.2d 889, 894 (Colo. App.

71
read only as the infliction of punishment because of Peters’s beliefs

and statements about election fraud. For example, the court noted

that her “words” were particularly damaging because of the position

of influence she held; and it noted that every time her beliefs were

refuted, she would make a new claim.

¶ 147 Thus, notwithstanding the fact that some of the trial court’s

considerations were tied to proper sentencing considerations, when

the court’s comments are viewed in their totality, it is apparent that

the court imposed the lengthy sentence it did because Peters

continued to espouse the views that led her to commit these crimes.

The tenor of the court’s comments makes clear that it felt the

sentence length was necessary, at least in part, to prevent her from

continuing to espouse views the court deemed “damaging.”

1999). Although Peters did not testify at trial, she chose to make a
statement at her sentencing hearing. Thus, it was not
inappropriate for the court to consider at sentencing whether
Peters’s statements evidenced a lack of remorse. See, e.g., People v.
Everett, 250 P.3d 649, 664 (Colo. App. 2010) (“[A] defendant who
testifies at trial or at the sentencing hearing waives his or her
constitutional right to remain silent, and a court can consider what
he or she says, or does not say, for purposes of sentencing,
including whether the defendant has expressed remorse.”).

72
¶ 148 But the court failed to acknowledge that Peters is no longer

the Mesa County Clerk and Recorder. She is no longer in a position

to engage in the conduct that led to her conviction. So it cannot be

said that the lengthy prison sentence was for specific deterrence.

To the contrary, the sentence punished Peters for her persistence in

espousing her beliefs regarding the integrity of the 2020 election.

¶ 149 For these reasons, we conclude that the trial court obviously

erred by imposing sentence at least partially based on Peters’s

protected speech. See Lemon, 723 F.2d at 937-38; see also

Dawson, 503 U.S. at 167 (concluding that the defendant’s “First

Amendment rights were violated by the admission of . . . Aryan

Brotherhood evidence . . . because the evidence proved nothing

more than [the defendant’s] abstract beliefs”); Stewart, 686 F.3d at

169 (“It is impermissible to sentence a defendant more harshly

based on associations that do not relate to specific criminal

wrongdoing, for example, or for beliefs that some might find morally

reprehensible, or for critical statements made in public because

they were made in public.”).

73
¶ 150 And, of course, the court’s improper consideration of Peters’s

protected speech to impose a longer prison sentence necessarily

means the error was substantial.

¶ 151 Thus, we must remand the matter for resentencing.17 In doing

so, we reject Peters’s conclusory and undeveloped request to require

that the case be assigned to a different district court judge. See

People v. Gingles, 2014 COA 163, ¶ 29. Any such request must first

be pursued in the district court. See Crown Life Ins. Co. v. Haag

Ltd. P’ship, 929 P.2d 42, 45 (Colo. App. 1996) (declining to address

on appeal issues not presented for consideration by the trial court).

XII. Disposition

¶ 152 The judgment of conviction is affirmed in part and reversed in

part. The convictions are affirmed, the sentence is reversed, and

the case is remanded with directions.

JUDGE WELLING and JUDGE LIPINSKY concur.

17 We express no opinion as to whether, on remand, the trial court

may take into account the statutory amendment to the crime of
criminal impersonation when determining the length of sentence for
the conspiracy to commit that felony. See Wells-Yates v. People,
2019 CO 90M, ¶ 48 (“Consideration of the statutory changes as the
most valid indicia of Colorado’s evolving standards of decency is not
equivalent to the retroactive application of those changes.”).

74