People v. Schmidt

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

SUMMARY
June 25, 2026

2026 COA 52

No. 24CA1102, People v. Schmidt — Crimes — Forgery —
Attempt to Influence a Public Servant

A division of the court of appeals disagrees with People v.

Carian, 2017 COA 106, ¶ 26, which held that forgery under

section 18-5-102(1)(d), C.R.S. 2025, applies only to documents filed

“pursuant to a legal mandate.” In addition, the division clarifies

that the crime of attempt to influence a public servant does not

require proof that the public servant had actual authority to act on

the matter under consideration.
COLORADO COURT OF APPEALS 2026 COA 52

Court of Appeals No. 24CA1102
Boulder County District Court No. 23CR673
Honorable Stephen E. Howard, Judge
Honorable Michael J. Vallejos, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Charles M. Schmidt,

Defendant-Appellant.

JUDGMENT REVERSED AND CASE
REMANDED WITH DIRECTIONS

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

Announced June 25, 2026

Philip J. Weiser, Attorney General, Rachel Lieb, Assistant Attorney General II,
Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Christina Van Wagenen,
Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 Defendant, Charles M. Schmidt, appeals the judgment of

conviction entered on a jury verdict finding him guilty of attempting

to influence a public servant and forgery after he tendered to a

district court judge, in a separate criminal case, a falsified

document purporting to confirm his completion of required useful

public service hours. Among other claims, Schmidt argues that his

forgery conviction must be vacated because the prosecution did not

prove that the falsified document was an instrument filed “pursuant

to a legal mandate” as required by People v. Carian, 2017 COA 106,

¶ 26. Because we disagree with the Carian division’s interpretation

of the relevant statutory language, we reject that claim.

¶2 We also reject Schmidt’s challenge to the sufficiency of the

evidence supporting the conviction for attempt to influence a public

servant. In doing so, we hold — for the first time in a published

appellate decision — that in proving that a defendant attempted to

influence a public servant “concerning any matter which is to be

considered or performed by the public servant,” § 18-8-306, C.R.S.

2025, the prosecution need not prove that the public servant had

actual authority to act on the matter under consideration.

1
¶3 However, because we conclude that the trial court improperly

precluded Schmidt from introducing certain evidence pertinent to

both charges, we reverse and remand for a new trial.

I. Background

¶4 Schmidt, who had been working as a bounty hunter, was

serving a probation sentence after assaulting someone while trying

to apprehend them. After allegedly violating the terms of his

probation, Schmidt appeared at a probation revocation resentencing

hearing. He submitted a letter to the district court, through his

attorney, attesting that he had completed fifty hours of useful

public service, which had been a condition of his original probation

sentence (the public service letter). Though the public service letter

had a Salvation Army logo on it, it did not appear to be on

letterhead, and the body of the letter was replete with misspellings

and punctuation and grammatical errors. The district court

questioned the validity of the public service letter but reinstated

Schmidt’s probation anyway.

¶5 Following an investigation, the prosecution concluded that

Schmidt had forged the public service letter “to be used to [his]

advantage to convince [t]he [c]ourt that his community service was

2
completed and to bolster his argument to the court regarding his

probation status.” The prosecution charged Schmidt with

attempting to influence a public servant and forgery.

¶6 Schmidt’s defense theory at trial was that he completed his

required public service hours and submitted what he believed to be

valid proof of having done so to the court in the form of his public

service letter. Schmidt’s timeline for completing his public service

hours fell between late 2020 to early 2021 — during the COVID-19

pandemic.

¶7 Schmidt testified that he approached his public service hours

cautiously because he was immunosuppressed. These precautions

included wearing a mask and staying away from others while

completing his work at a Salvation Army food bank. Schmidt also

said that he had back surgery during the same period. Schmidt

testified that he filed a motion with the court to modify his

probation because he was uncertain that he would be able to

complete the public service hours before the court-imposed

deadline due to his physical limitations following his surgery.

¶8 On the morning of the third day of trial, a division of this court

issued an opinion addressing Schmidt’s appeal of his probation

3
resentencing. In People v. Schmidt, (Colo. App. No. 23CA0485, Feb.

22, 2024) (not published pursuant to C.A.R. 35(e)) (Schmidt I), the

division determined that, contrary to the district court’s

understanding, the district court had not stayed Schmidt’s sentence

during the pendency of a prior appeal involving his probation

sentence.1 Thus, his probation sentence had expired before the

probation department moved to revoke it. As a result, the division

concluded that “the district court lacked jurisdiction to revoke

Schmidt’s probation and resentence him based on the new offense

that he allegedly committed after his probation had expired” and

vacated the district court’s order resentencing him to sixty days in

jail and two years of probation. Id., slip op. at ¶¶ 19-21.

¶9 Defense counsel requested a mistrial on the attempt to

influence a public servant and forgery charges, noting that the

“case here is completely premised on a misapplication of the law.”

The district court acknowledged that the opinion raised “legitimate

1 Schmidt had appealed the district court’s denial of his request to

terminate probation early and its order requiring him to serve eight
days on electronic home monitoring.

4
issues,” but it nevertheless denied the request and moved forward

with the proceedings. A jury convicted Schmidt on both counts.

¶ 10 Schmidt raises three issues on appeal. He asserts that there

was insufficient evidence to convict him of either charge. He

contends that the trial court2 erred by prohibiting him from

testifying about his own medical diagnoses. And he argues that the

trial court should have permitted him to present witnesses who

would testify regarding his character for truthfulness.

II. Sufficiency of the Evidence

¶ 11 Schmidt contends that the prosecution failed to present

sufficient evidence that he attempted to influence a public servant

or committed forgery. We disagree.

A. Standard of Review and Applicable Law

¶ 12 “The Due Process Clauses of the United States and Colorado

Constitutions require proof of guilt beyond a reasonable doubt on

2 The judge who presided over Schmidt’s trial on the attempt to

influence a public servant and forgery charges was not the same
judge to whom Schmidt had provided the public service letter. For
the sake of clarity, we refer to the court before which Schmidt was
tried on these charges as “the trial court” and the court before
which Schmidt’s probation revocation proceedings occurred — and
to which Schmidt tendered the public service letter — as “the
district court.”

5
each of the essential elements of a crime.” People v. Duncan, 109

P.3d 1044, 1045 (Colo. App. 2004); see U.S. Const. amends. V, XIV;

Colo. Const. art. II, § 25. A defendant challenging the sufficiency of

the evidence is “asserting that the prosecution has not proven every

fact necessary to establish the crime at issue, and thus, it has not

established that the defendant, in fact, committed a crime.” McCoy

v. People, 2019 CO 44, ¶ 20.

¶ 13 When considering a sufficiency of the evidence claim, “[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

defendant’s conviction.” Clark v. People, 232 P.3d 1287, 1291

(Colo. 2010). In doing so, we apply the substantial evidence test, in

which “we ask whether the evidence, ‘viewed as a whole and in the

light most favorable to the prosecution, is substantial and sufficient

to support a conclusion by a reasonable mind that the defendant is

guilty of the charge beyond a reasonable doubt.’” Gorostieta v.

People, 2022 CO 41, ¶ 16 (quoting People v. Harrison, 2020 CO 57,

¶ 32). The same standard of review applies to a sufficiency

challenge based on a purely legal question, such as statutory

construction. McCoy, ¶ 31.

6
¶ 14 Generally, “the prosecution is provided with one fair

opportunity to present evidence sufficient to sustain a conviction.”

People v. Miralda, 981 P.2d 676, 680 (Colo. App. 1999).

Consequently, unless some action by the defense or ruling by the

court prevented the prosecution from presenting evidence, vacatur

of a conviction due to insufficiency of the evidence bars retrial of the

defendant on the charges. Id.

¶ 15 “In construing a statute, we interpret the plain language of the

statute to give full effect to the intent of the General Assembly.”

People v. Griego, 2018 CO 5, ¶ 25. “When the statutory language is

clear, we apply the plain and ordinary meaning of the provision.”

Id. “In doing so, we give consistent, harmonious, and sensible effect

to each part of the statute, and we interpret every word, rendering

no words or phrases superfluous and construing undefined words

and phrases according to their common usage.” Id.

B. Attempt to Influence a Public Servant

¶ 16 Schmidt argues the evidence was insufficient to prove that he

attempted to influence a public servant. Specifically, he contends

that the “evidence can only be sufficient if the public servant had

the authority to act for the government.”

7
¶ 17 Section 18-8-306 provides that

[a]ny person who 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 . . . , commits a class 4 felony.

¶ 18 Schmidt does not contest the district court judge’s status as a

“public servant.” And notwithstanding the People’s focus on the

issue in their appellate briefing, Schmidt does not challenge the

legal conclusion that a “defendant doesn’t have to successfully

influence a public servant” to be convicted of this offense. Rather,

the fulcrum on which this challenge hinges is the statutory phrase

“concerning any matter which is to be considered or performed by

the public servant.” Id.

¶ 19 Schmidt argues that “no evidence presented by the

prosecution in this case could overcome [the Schmidt I division’s]

no-jurisdiction finding, [because it] negated the ‘matter which is to

be considered or performed’ element of the offense.” The People

counter that the statutory language is broad, that there is no

dispute that “probation resentencing is a matter within the

consideration of a trial court,” and that “the [district] court

8
considered the letter in resentencing Schmidt.” They further

contend that Schmidt’s interpretation of the statutory language

would “lead to an absurd result [because] [i]t would essentially

grant a defendant a free pass if he attempted to influence a public

servant but later found out the public servant did not have the

authority to do what the defendant wanted.”

¶ 20 To assess this issue, we look to the language of the statute,

which the jury instruction on the charge tracked in laying out the

elements for the jurors to consider. (Notably, Schmidt does not

contend that this instruction was erroneous.) The trial court

instructed the jurors that, to convict Schmidt of attempt to

influence a public servant, they had to be convinced beyond a

reasonable doubt

1) [t]hat the defendant,

2) on or about March 16, 2023,

3) with the intent,

4) to alter or affect any public servant’s
decision, vote, opinion, or action
concerning any matter which was to be
considered or performed by the public
servant . . . ,

5) attempted to influence the public servant
by means of deceit.

9
¶ 21 A close analysis of this instruction reveals two things of note.

First, it applied the mens rea of “intent” to each element of the

offense. See People v. Hoggard, 2017 COA 88, ¶ 40, aff’d on other

grounds, 2020 CO 54. This means that a conviction on this count

required that Schmidt intended to do three things: (1) alter or affect

any public servant’s decision (or vote or opinion or action);

(2) attempt to influence the public servant;3 and (3) do so by means

of deceit. See id. at ¶ 42.

¶ 22 Second, the phrase, “concerning any matter which is to be

considered or performed by the public servant,” is not a separate

element to be proved. § 18-8-306. Rather, as relevant to this case,

it is to be read in conjunction with the word “action” and aims to

3 “Attempt” in this context is not the same as the “substantial step”

required under the statutory definition of criminal attempt to
commit an offense in section 18-2-101(1), C.R.S. 2025. People v.
Riley, 2015 COA 152, ¶¶ 27-30. Where the General Assembly
provides that the mere act of attempting to do something constitutes
a completed, as opposed to an inchoate, offense, “attempt” simply
means an “act or an instance of making an effort to accomplish
something.” People v. Johnson, 2024 CO 32, ¶ 27 (quoting Black’s
Law Dictionary 158 (11th ed. 2019)) (interpreting “attempt” in the
child enticement statute, § 18-3-305(1), C.R.S. 2025)). Thus, in
this context, a defendant intentionally attempts to influence a
public servant when it is their “conscious objective,” § 18-1-501(5),
C.R.S. 2025, to engage in an effort to accomplish their goal of
influencing the public servant.

10
capture a larger subset of matters in which a person could

reasonably influence a public servant.4

¶ 23 In light of these considerations, we conclude that the General

Assembly enacted this provision to criminalize deceitful acts that

could potentially influence a public servant. See People v. Frysig,

628 P.2d 1004, 1007 (Colo. 1981) (“The primary purpose in

punishing attempts is not to deter the commission of completed

crimes, but rather to subject to corrective action those individuals

who have sufficiently manifested their dangerousness.” (citation

omitted)). This inference is supported by the fact that a person

does not have to succeed in influencing a public servant to be

convicted of this crime. See People v. Sena, 2016 COA 161, ¶ 16

(“[W]hether the public servant was actually influenced by the

defendant’s attempts is not an element of the crime.”). And it

4 This reading of the statute is further supported by People v. Blue,

253 P.3d 1273, 1277 (Colo. App. 2011). In that case, a division of
this court described the elements of the crime of attempt to
influence a public servant as “(1) an attempt to influence a public
servant; (2) by means of deceit . . . ; and (3) with the intent to alter
or affect the public servant’s decision or action.” Id. The phrase
“concerning any matter which is to be considered or performed by
[the public servant]” was not listed as an element, despite its
presence in the statutory language at that time. § 18-8-306, C.R.S.
2010.

11
logically follows that the General Assembly would not treat

differently a defendant who intended to influence a public servant,

and took deceitful action to do so, but happened to mistakenly

believe the particular public servant actually had control over the

requisite decision. In our view, this reading “give[s] full effect to the

intent of the General Assembly.” Griego, ¶ 25.

¶ 24 With this in mind, we then assess whether the prosecution

provided sufficient evidence that (1) Schmidt, (2) on or about March

16, 2023, (3) with the intent to affect any public servant’s decision,

(4) attempted to influence the public servant by means of deceit.

We hold that there is sufficient evidence to support each of these

elements.

¶ 25 As noted, neither party contests the district court judge’s

status as a public servant. And the prosecution offered evidence

that the district court considered the public service letter as a

mitigating factor during the resentencing process. And regardless

of the subsequent determination that the district court judge lacked

jurisdiction over the resentencing hearing, Schmidt nevertheless

presented the forged public service letter with the intent to affect the

decision the judge was actively considering at that time. For these

12
reasons, we conclude that the evidence is substantial and sufficient

to support a conclusion beyond a reasonable doubt that Schmidt is

guilty of attempting to influence a public servant. See Gorostieta,

¶ 16.

C. Forgery

¶ 26 Schmidt next contends the evidence was insufficient to prove

forgery. Specifically, he argues that the public service letter did not

have the necessary “legal efficacy” to fall within the definition of

forgery, nor did it fall into one of the defined categories of written

instruments within subsection (1)(d) of the forgery statute.

¶ 27 Section 18-5-102(1)(d), C.R.S. 2025, provides:

(1) A person commits forgery, if, with intent
to defraud, the person falsely makes,
completes, alters, or utters a written
instrument that is or purports to be, or that is
calculated to become or to represent if
completed:

....

(d) A public record or an instrument filed or
required by law to be filed or legally fileable in
or with a public office or public servant.

(Emphasis added.)

¶ 28 “[W]hen the word ‘or’ is used in a statute, it is presumed to be

used in the disjunctive sense, unless legislative intent is clearly to

13
the contrary.” Armintrout v. People, 864 P.2d 576, 581 (Colo. 1993).

Therefore, under subsection (1)(d), a written instrument must fall

into one of two categories: (1) a public record or (2) an instrument

filed or required by law to be filed or legally fileable in or with a

public office or public servant. § 18-5-102(1)(d). We conclude that

the public service letter was an instrument that was legally fileable

with a public servant.

¶ 29 First, the public service letter is a written instrument, in that

it is a “document . . . containing written or printed matter . . . used

for purposes of reciting, embodying, conveying, or recording

information, . . . which is capable of being used to the advantage or

disadvantage of some person.” § 18-5-101(9), C.R.S. 2025. Second,

again, the district court judge is a public servant. The question,

then, turns on whether the public service letter was “legally

fileable.” § 18-8-306. Significantly, there is no indication that the

district court prevented Schmidt from tendering the document to

the court or refused to put it in the file. To the contrary, the court

accepted the document, and it is part of the file.

¶ 30 Schmidt, however, argues that the document was not filed

“pursuant to a legal mandate” as required by People v. Carian, 2017

14
COA 106, ¶ 26. In Carian, the division interpreted subsection (1)(d)

of the forgery statute under similar — but not identical —

circumstances. There, the defendant submitted a falsified

urinalysis report to his probation officer. Id. at ¶ 7. The division

noted that, “in the context of subsection (1)(d), ‘to file’ an

instrument must mean more than simply delivering it to a public

office or a public servant.” Id. at ¶ 24. Instead, the language ‘‘‘filed

or required by law to be filed or legally fileable in or with a public

office or public servant’ refers to those instruments actually

delivered to a public office or public servant pursuant to a legal

mandate.” Id. at ¶ 26 (emphasis added) (quoting § 18-5-102(1)(d)).

The division concluded that the probation officer, “while a public

servant, was not mandated to receive and maintain urinalysis

reports as required by subsection (1)(d).” Id. at ¶ 32. As a result,

the division vacated the defendant’s conviction for forgery. Id. at

¶ 36.

¶ 31 We do not agree that Carian is dispositive. First, the division’s

language appears to eliminate the distinction between filed and

fileable. To the extent it does so, we disagree with the division and

decline to follow its decision. See People v. Martinez, 2022 COA

15
142, ¶ 24 (one division of the court of appeals is not bound by the

decision of another). Moreover, Carian is distinguishable because of

the recipient of the deceitful document at issue. It is far from clear

that providing a document to a probation officer is an act of “filing”

a document. But there can be no doubt that tendering a document

to the court for purposes of placing that document into the court

record amounts to “filing” that document. See Black’s Law

Dictionary 768 (12th ed. 2024) (defining the verb “file” as “[t]o

deliver a legal document to the court clerk or record custodian for

placement into the official record”).

¶ 32 In short, because there was no legal impediment to Schmidt

submitting the public service letter to the court for inclusion in the

court file, it was legally fileable. Consequently, we conclude that

there was sufficient evidence to convict Schmidt of forgery under

section 18-5-102(1)(d).

III. Character for Truthfulness

¶ 33 Schmidt contends that the trial court erred by refusing to

allow any witnesses to testify about his character for truthfulness.

We agree and, therefore, reverse his convictions and remand for a

new trial.

16
A. Standard of Review and Applicable Law

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

discretion.” Campbell v. People, 2019 CO 66, ¶ 21. A trial court

abuses its discretion when it misapplies the law or when its

decision is manifestly arbitrary, unreasonable, or unfair. People v.

McLaughlin, 2023 CO 38, ¶ 22. But “[w]e review an alleged violation

of constitutional rights de novo.” People v. Scott, 2021 COA 71,

¶ 12.

¶ 35 We review trial errors of a constitutional dimension that were

preserved by objection for constitutional harmless error. Hagos v.

People, 2012 CO 63, ¶ 11. Constitutional harmless errors “require

reversal unless the reviewing court is ‘able to declare a belief that

[the error] was harmless beyond a reasonable doubt.’” Id. (quoting

Chapman v. California, 386 U.S. 18, 24 (1967)). “Stated differently,

the question ‘is not whether, in a trial that occurred without the

error, a guilty verdict would surely have been rendered, but whether

the guilty verdict actually rendered in this trial was surely

unattributable to the error.’” Zoll v. People, 2018 CO 70, ¶ 18

(quoting Sullivan v. Louisiana, 508 U.S. 275, 279 (1993)).

17
¶ 36 We review nonconstitutional trial errors that were preserved by

objection for harmless error. Hagos, ¶ 12. “Under this standard,

reversal is required only if the error affects the substantial rights of

the parties,” id., which occurs “if the error ‘substantially influenced

the verdict or affected the fairness of the trial proceedings,’” id.

(quoting Tevlin v. People, 715 P.2d 338, 342 (Colo. 1986)).

¶ 37 As a general rule, character evidence is not admissible under

CRE 404(a), but certain exceptions apply. CRE 404(a)(1) “allows an

accused to introduce evidence of a ‘pertinent’ trait of character at

trial.” People v. Miller, 890 P.2d 84, 94 (Colo. 1995) (emphasis

omitted) (quoting CRE 404(a)(1)). A defendant’s truthfulness is a

pertinent trait if “[t]he offense charged is crimen falsi; i.e., a lie by

the defendant is an element of the crime.” Id. at 92 (quoting United

States v. Hewitt, 634 F.2d 277, 279 (5th Cir. 1981)). Alternatively,

CRE 608(a) “permits the admission of opinion or reputation

evidence of a witness’s character for truthfulness, but only ‘after the

character of the witness for truthfulness has been attacked by

opinion or reputation evidence.’” People v. Serra, 2015 COA 130,

¶ 62 (quoting CRE 608(a)). And “[m]erely questioning a witness’s

18
credibility does not necessarily constitute an attack on that

witness’s overall character for truthfulness.” Id. at ¶ 65.

B. Additional Background

¶ 38 Following Schmidt’s testimony, defense counsel asked to call

three witnesses to present evidence of Schmidt’s truthful character.

Defense counsel argued that “the cross-examination of Mr. Schmidt

was nothing but attacking his character for truthfulness” and

therefore opened the door to providing rebuttal witnesses to testify

to his character for truthfulness under CRE 608.

¶ 39 Relying on People v. Serra, 2015 COA 130, the court noted

that to trigger the admission of character evidence under CRE 608,

questions aimed at a witness “must do more than attack the

truthfulness of the witness’s testimony, they must attack [their]

general propensity to tell the truth.” Serra, ¶ 66. The court asked

defense counsel to explain what he perceived to be an attack on

Schmidt’s general propensity to tell the truth. Defense counsel

responded, arguing that “this whole case is about dishonesty” and

that the charges, by nature, “are allegations that he’s a dishonest

person.” Defense counsel reemphasized this point later in the

discussion, highlighting that “this case is very different than an

19
assault or trespass case, where there might be impeachment”

because Schmidt’s charges, “by their nature, are attacks on

character,” and honesty is “an essential element of the charge.”

¶ 40 The court ultimately barred the use of Schmidt’s witnesses to

introduce evidence of his character for truthfulness. When it

presented its ruling, the trial court acknowledged that it was

possible that “the nature of the charge should be taken into

account in determining whether character evidence of

truthfulness . . . should be received” but that it was unaware of any

case law requiring as much. The court also noted that the

“witnesses were not timely disclosed” but found that it was unclear

whether the prosecution was prejudiced by the late disclosure. The

prosecution argued that it “did not have an opportunity to properly

investigate these individuals” due to the late disclosure. The court

did not enter a ruling on whether the late disclosure prejudiced the

prosecution and instead confirmed its ruling under CRE 608.

C. Analysis

1. Preservation

¶ 41 The parties disagree as to what portions of Schmidt’s

argument are preserved. The People concede that Schmidt

20
preserved his argument under CRE 608. But they contend that

Schmidt did not preserve his argument under CRE 404(a)(1).

Schmidt argues “trial counsel preserved this error by arguing the

substance of CRE 404(a)(1).”

¶ 42 “We do not require that parties use ‘talismanic language’ to

preserve particular arguments for appeal . . . .” People v. Melendez,

102 P.3d 315, 322 (Colo. 2004). Instead, a party need only “present

the trial court with ‘an adequate opportunity to make findings of

fact and conclusions of law’ on the issue.” Martinez v. People, 2015

CO 16, ¶ 14 (quoting Melendez, 102 P.3d at 322). As noted,

Schmidt argued at various points that the nature of the charges

inherently involved his character for truthfulness. And the court

made findings on that issue when it determined that the type of

case did not impact the admission of character evidence. We

conclude that Schmidt preserved his argument under CRE

404(a)(1). See People v. Coughlin, 304 P.3d 575, 582 (Colo. App.

2011) (“Even if an objection to evidence does not specifically identify

the rule underlying the objection, it is nonetheless sufficient to

preserve an issue for appeal if the objecting attorney presents

21
arguments or utilizes language that alerts the trial court to the

impending error.”).

2. Crimen Falsi Offenses

¶ 43 As noted, supra Part II.B, one element of the crime of attempt

to influence a public servant is influencing any public servant “by

means of deceit.” § 18-8-306. Similarly, Schmidt’s forgery charge

required proof of Schmidt’s intent to defraud and his act of

tendering a false document. See § 18-5-102(1)(d). And to defraud

is to act by deceit. Black’s Law Dictionary 535 (12th ed. 2024)

(defining “defraud” as “[t]o cause injury or loss to (a person or

organization) by deceit”).

¶ 44 “[D]eceit” is defined as “[t]he act of intentionally leading

someone to believe something that is not true; an act designed to

deceive or trick.” Black’s Law Dictionary 509 (12th ed. 2024). For

purposes of determining whether each of these offenses is a crimen

falsi, we see no distinction between deceit and a lie. After all,

“lying” is defined as “mak[ing] an untrue statement with intent to

deceive.” Merriam-Webster Dictionary, https://perma.cc/LA3Z-

GWHL. And because deceit is at the core of both attempting to

influence a public servant and forgery, it follows that Schmidt’s

22
alleged truthfulness was a pertinent trait, see Miller, 890 P.2d at 94,

and that he should have been permitted to offer evidence of that

character trait, see CRE 404(a)(1).

¶ 45 Because the trial court misapplied the law, it abused its

discretion. See McLaughlin, ¶ 22. The question then becomes

whether the error in excluding this testimony requires reversal.

3. Constitutional Harmless Error

¶ 46 The People contend that we should review for

nonconstitutional harmless error because “the constitutional right

to present a defense is not absolute,” and the “right is abridged

‘only where the defendant was denied virtually his only means of

effectively testing significant prosecution evidence.’” See Krutsinger

v. People, 219 P.3d 1054, 1062 (Colo. 2009). The People argue that

Schmidt was permitted to testify about his own character, and,

therefore, his constitutional right was not abridged.

¶ 47 But the constitutional right to present a defense includes “the

right to call witnesses on [a defendant’s] behalf,” People v.

Gonzales-Quevedo, 203 P.3d 609, 611 (Colo. App. 2008), which was

clearly violated when Schmidt’s witnesses were barred from

testifying. Indeed, as the United States Supreme Court has

23
observed, “Few rights are more fundamental than that of an

accused to present witnesses in his own defense.” Chambers v.

Mississippi, 410 U.S. 284, 302 (1973); see also Golob v. People, 180

P.3d 1006, 1013 (Colo. 2008) (“Because a criminal defendant has

the right to call witnesses in [their] defense, abridgment of that right

is subject to a constitutional harmless error analysis.”); Melendez,

102 P.3d at 319 (applying constitutional harmless error review to

exclusion of defense witnesses’ testimony after he violated a

sequestration order).

¶ 48 And given the fact that Schmidt’s character for truthfulness

was directly related to the crimes charged, his proposed witnesses

would have tested significant prosecutorial evidence that Schmidt’s

testimony alone was ill-equipped to combat.

¶ 49 In other words, the erroneous exclusion of Schmidt’s character

witnesses effectively deprived him of the only means of effectively

challenging the prosecution’s evidence regarding a significant issue

in the case — his character for truthfulness. Therefore, we apply

the constitutional harmless error standard to the exclusion of

Schmidt’s witnesses and will reverse absent a showing that the

24
error was harmless beyond a reasonable doubt. See Golob, 180

P.3d at 1013.

¶ 50 The proposed witnesses were set to testify that they had

“formed an opinion of Mr. Schmidt as having an honest character”

after working with him in a professional capacity for several years.

Through this testimony, Schmidt may have been able to rehabilitate

his character for truthfulness, which — again — was at issue due to

the nature of the charge. Moreover, the testimony would have

further supported Schmidt’s defense theory that he did not know

that the public service letter was forged when he submitted it to the

court and therefore did not intend to deceive the judge. Thus, we

cannot say that the exclusion of witness testimony addressing

Schmidt’s character for truthfulness was surely unattributable to

the guilty verdict. See Zoll, ¶ 18.

D. Untimely Disclosure of Witnesses

¶ 51 Finally, noting that we can affirm a judgment on any ground

supported by the record, see People v. Manyik, 2016 COA 42, ¶ 69,

the People argue that we should do so here because the trial court

could have properly excluded the witnesses as a discovery sanction.

We decline to take this step.

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¶ 52 True, a trial court generally has discretion, after properly

considering the attendant circumstances, to exclude evidence that

was not timely disclosed. See People v. Pronovost, 773 P.2d 555,

558 (Colo. 1989) (enumerating the factors a court must consider

when determining whether to exclude a criminal defendant’s

evidence based on a late disclosure). But after permitting the

prosecutor to explain how she was prejudiced by the late

disclosure, the court neither found prejudice nor excluded the

witnesses as a sanction. Significantly, the court declined to do so

even as an alternative ground, notwithstanding its acknowledgment

that its decision to exclude the witnesses was “a very close call.”

¶ 53 The People argue that the court would not have abused its

discretion had it chosen to exclude the witnesses as a sanction.

But based on the record, we are unable to determine if that is true.

The trial court did not make findings on — or, as far as we can tell,

even consider — the Pronovost factors. As a result, the record does

not provide an alternative basis for us to affirm. (In any event, we

note that any prejudice flowing from the inability to prepare for the

witnesses is necessarily alleviated now; on remand, the People will

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have ample notice of these witnesses and time to prepare to

cross-examine them.)

¶ 54 Because the trial court erroneously interfered with Schmidt’s

ability to mount a defense and that error was not harmless,

Schmidt is entitled to a new trial.

IV. Testimony Regarding Medical Diagnoses

¶ 55 Schmidt also contends that the trial court violated his

constitutional right to testify and to present a complete defense by

limiting his trial testimony regarding his own medical conditions.

However, because we do not know if, or in what context, this issue

will arise again on retrial, we decline to address it.

V. Disposition

¶ 56 The judgment of conviction is reversed, and the case is

remanded for a new trial.

JUDGE WELLING and JUDGE LIPINSKY concur.

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