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

SUMMARY June 14, 2018

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

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

assertion that because the statewide grand jury indictment received

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

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

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

predeliberation contention, the division distinguishes People v.

Rediger,

, relying instead on Stackhouse v. People,

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

the division concludes that the evidence of attempt to influence a

public servant was insufficient where defendant only input false

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

that a department technician would screen the information before

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

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

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Mike Tee,

Defendant-Appellant.

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

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

Announced June 14, 2018

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

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

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

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

contends that

 because the indictment received by the district court did not

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

confer jurisdiction and all charges must be dismissed;

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

a new trial;

 because insufficient evidence supported the two convictions

for attempting to influence a public servant, these convictions

must be vacated; and

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

trial court announced at the sentencing hearing, despite a

lengthier sentence that the court imposed later.

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

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

conclude that the signature of the foreperson need not be provided

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

predeliberation; and the evidence was sufficient to support one

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

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

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

remand to correct the mittimus.

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

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

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

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

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

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

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

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

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

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

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

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

P. 7(a)(2).

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

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

which ended with the following:

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

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

Arrest Warrants are Issued for:

Mike Tee . . . .

The signature of the foreperson was not included.

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

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

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

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

anyone other than the prosecutors and/or investigators with the

Attorney General’s Office without written authorization from the

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

order to preserve the confidentiality of all information that might

identify state grand jurors when reasonably necessary to protect the

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

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

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

The court clerk responded with an affidavit attesting that the

Denver District Court had sent only these pages.1

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

the foreperson signed the indictment, but whether the allegedly

incomplete copy of the indictment filed in the Arapahoe County

District Court gave that court jurisdiction. We discern no

jurisdictional defect for two reasons.

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

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

, 402,

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

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

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

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

Thompson,

(Colo. 2008); see § 16-1-104(11),

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

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

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

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

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

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

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

maintained by the chief judge who issued the order impaneling

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

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

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

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

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

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

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

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

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

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

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

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

otherwise.

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

had jurisdiction.

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

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

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

that predeliberation constitutes either structural error or a denial of

due process subject to constitutional harmless error review. Under

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

reversed and the case remanded for a new trial.

¶ 12 The predeliberation concern arose when a victim advocate told

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

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

testimony from the victim advocate in the presence of the

prosecutor and defense counsel. Next, the court questioned these

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

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

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

contention because defense counsel waived it. Tee responds that

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

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

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

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

P.C.,

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

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

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

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

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

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

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

declare a mistrial after defense counsel expressly renounced that

remedy.

A. Law

¶ 14 Three familiar principles guide waiver analysis in criminal

cases.

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

court to review.” People v. Bryant,

, ¶ 13 n.2

(quoting People v. Rodriguez,

(Colo. App.

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

from the trial court’s consideration.”

(citing Rodriguez,

).

 Still, waiver requires “that the defendant intentionally

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

; see People v. Kessler,

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

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

counsel, intentionally waived the particular point raised on

appeal.”).

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

waived, regardless of whether the deprivation thereof would

otherwise constitute structural error.” Stackhouse v. People,

(courtroom closure).

¶ 15 The Supreme Court has identified factors limiting waiver.

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

participate personally in the waiver; whether certain procedures are

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

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

United States v. Olano,

(1993).

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

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

conduct which could constitute predeliberation is unwaivable;

identifying any unique procedure that must be followed to waive

predeliberation; or requiring a defendant’s informed and voluntary

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

argue any of these factors.

¶ 17 Absent such authority, People v. Hambrick,

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

successfully moved for a mistrial because “several members of the

jury had impermissibly discussed the specifics of the case and had

potentially been biased by the predeliberation discussions.”

On appeal from conviction at retrial, the defendant raised

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

defense counsel had sought the mistrial, the court explained that

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

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

defendant.” Id.2

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

move for a mistrial. See People v. Greer,

(Ill.

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

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

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

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

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

mistrial.”).

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

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

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

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

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

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

10 B. Analysis

¶ 19 The Attorney General argues that waiver applies because

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

inquiries and resolution of the alleged predeliberation issue, he

affirmatively approved the trial court’s line of questioning and

actively participated in further instructing the jury to address his

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

authority support this conclusion.

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

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

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

,

(1968); see also People v. Tillery,

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

that the instruction was prejudicial because it referred to “the

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

sub nom. People v. Simon,

(Colo. 2011).3

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

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

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

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

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

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

basis, the division concluded that instructional error had been

waived.

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

colloquy with the court did not show either actual knowledge or

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

correctly instructed on the elements of the offense in the

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

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

supplemental briefs on waiver. Having reviewed that briefing, we

draw two conclusions. First, Rediger II does not categorically

preclude finding a waiver based on defense counsel’s active

participation in trial court action that appellate counsel challenges

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

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

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

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

Stackhouse is more illuminating than is Rediger II.

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

asked defense counsel a single question; counsel answered with a

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

trial court and defense counsel were involved in an ongoing,

interactive exchange. Thus, the record supports applying cases

such as Valley, as the Attorney General asserts.

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

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

authority, probably because the record did not show active

participation by defense counsel in the flawed jury instruction,

which appeared to have been prepared by the prosecution. Rediger

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

relinquishment of a known right requires further scrutiny. In other

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

always prevent appellate counsel from identifying an error and

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

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

could be intentionally relinquished.

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

acknowledged having read the instructions. So, what more than

knowledge presumed from the circumstances must be present

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

one answer.

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

People v. Novotny,

(noting “the specter of invited

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

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

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

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

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

doctrine,” is appropriate. People v. Stewart,

(Colo.

2002). See also People v. Gross,

(“The attorney

incompetence exception does not apply to deliberate, strategic acts

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

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

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

even silence should be characterized as either deliberate or

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

the context of its circumstances.”

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

Stackhouse through the prism of inadvertence offers a path forward.

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

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

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

Stackhouse, ¶ 17.

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

II, merely reading the instructions does not compel the conclusion

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

on the statutory elements under which he had been charged

because the elements on the instructions and those on the

information came from different subsections of the same statute.

The explanation could have been inadvertence, as the difference in

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

presence when the trial court directed that the courtroom be closed

permits no reasoned doubt that counsel recognized the defendant’s

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

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

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

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

that because defense counsel recognized the predeliberation

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

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

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

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

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

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

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

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

else.”

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

appeals’ holding that Stackhouse waived his right to public trial

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

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

recognized the specter of predeliberation. And just as Stackhouse,

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

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

16 that juror predeliberation would raise a constitutional concern.

People v. Flockhart,

(An “erroneous

pre-deliberation instruction may prejudice a defendant’s

constitutional right to a fair trial.”).

¶ 32 Then consider intentional relinquishment.

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

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

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

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

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

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

cure — “a mistrial.”

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

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

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

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

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

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

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

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

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

understood the relative burdens for the prosecution and the

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

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

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

jurors deliberated “would encourage gamesmanship.”

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

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

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

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

further relief.

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

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

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

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

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

document when he generally acquiesced to the jury instructions,”

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

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

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

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

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

United States v. Zubia-Torres,

(10th Cir. 2008)

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

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

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

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

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

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

in Rediger II, ¶ 42.

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

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

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

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

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

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

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

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

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

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

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

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

error must be deliberate rather than inadvertent.”

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

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

particularly apparent in the context of Stackhouse’s jury selection

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

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

Tee’s counsel expressly renounced a mistrial.

¶ 41 Second and more importantly, this assertion ignores the

possibility that counsel’s strategic purpose was to preserve his

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

See People v. McCoy,

, ¶ 99 (Webb, J., specially

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

statutory sufficiency argument would probably be unsuccessful and

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

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

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

“Forfeiture takes place when counsel or a defendant negligently

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

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

Perez-Rodriguez, ¶ 27).

¶ 42 In sum, and notwithstanding the “presumption against

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

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

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

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

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

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

circumstances, defendant’s withdrawal of motion for mistrial left

“nothing for this court to review”).

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

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

public servant based on evidence that he made allegedly false

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

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

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

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

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

department. We conclude that the evidence was sufficient to

support the conviction for attempting to influence a public servant

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

filled in at the kiosk.

A. Standard of Review and Law

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

appellate court “to determine whether the relevant evidence, both

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

most favorable to the prosecution, is substantial and sufficient to

support a conclusion by a reasonable person that the defendant is

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

Moore,

(Colo. App. 2009). The prosecution

must be given the benefit of every reasonable inference that might

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

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

because the jury could have reached a different conclusion based

on the evidence. People v. Fuller,

(Colo. 1990).

22 However, if the appellate court concludes that evidence was

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

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

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

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

charge would constitute a violation of the constitutional guarantee

against double jeopardy.”).

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

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

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

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

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

servants in their official capacities to improperly alter or affect the

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

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

Molina,

. It “encompasses any employee of the

23 government and even includes non-employees performing

government functions.” People v. Sena,

.

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

defendant acted with the specific intent to influence a public

servant[].” People v. Janousek,

(Colo. 1994).

But “whether the public servant was actually influenced by the

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

B. Analysis

1. Police Officer

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

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

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

information Tee had provided, the officer prepared and filed an

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

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

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

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

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

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

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

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

responding officer testified that writing police reports is an official

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

Tee having reported the accident to him:

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

A: I did.

Q: Did you file this report?

A: I did.

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

(holding that the

defendant attempted to influence a public servant when he provided

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

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

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

evidence for a rational trier of fact to conclude that defendant

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

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

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

public servant beyond a reasonable doubt.

25 2. Kiosk Report

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

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

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

section 18-8-306. We agree.

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

department to testify about the accident report that Tee had filled

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

includes both forms filled in on a home computer and those

completed on a terminal at a kiosk:

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

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

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

in filling out the report.”

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

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

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

needed to do.”

She also testified about performing her duties:

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

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

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

information is filled out.”

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

some kind of difficulty working on the computer.”

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

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

She explained that when using this process,

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

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

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

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

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

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

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

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

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

printed out the accident report that the prosecution introduced into

evidence from the police department’s online reporting system.

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

prove that Tee “intended his representations about a supposed

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

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

technician testified that she would have “done something different if

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

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

interaction with the technician, much less that he knew the

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

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

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

her actions. See People v. Prante,

,

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

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

is an officer).

¶ 54 Colorado cases addressing sufficiency of the evidence under

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

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

Beck,

(the defendant provided false identifying

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

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

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

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

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

v. Fortson,

; People v. Schupper,

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

representations on his application in order to influence a public

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

appoint counsel.”).

¶ 55 Still, in People v. Montante,

, on which the

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

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

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

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

an undercover officer masquerading as a patient who supposedly

needed the certification to obtain a medical marijuana identification

29 card from the Colorado Department of Public Health and

Environment.

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

of the application that an applicant must submit to the Colorado

Department of Public Health and Environment.”

And these

alleged false statements “constituted an attempt to influence, by

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

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

marijuana identification card.” Id. at ¶ 5.

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

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

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

the making of false representations with the expectation that the

Physician Certification would be submitted to the Department

would constitute the offense of attempt to influence a public

servant.” Id. at ¶ 46.

¶ 58 This conclusion survives scrutiny because article XVIII,

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

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

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

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

physician knew his false statements written on the certification

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

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

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

People v. Hayward,

(Colo. App. 2002) (“[E]very

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

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

present any evidence showing that Tee knew the technician — or

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

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

Attorney General direct us to any statute describing human

involvement in this process. And unlike the hard copy physician

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

on a computer terminal suggests an entirely automated process.

Cf. People v. Rice,

(Colo. App. 2008) (“When

the computer system determines a claimant is eligible for

unemployment benefits, a computer prints a check that is

automatically sent to the claimant. Typically, an eligible claimant

completes a claim and receives a check without interacting with a

person.”).

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

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

Mere false reporting, however, while prohibited by section

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

influence a public servant.” People v. Blue,

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

occur without any false reporting at all.”

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

the evidence claims — we cannot say that the evidence was

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

conviction for attempt to influence a public servant.

IV. The Mittimus Must Be Corrected

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

court violated Tee’s double jeopardy rights when it orally

announced sentences totaling twelve years, but then the mittimus

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

out, some of his concurrent sentences were improperly changed to

consecutive sentences; and the mittimus listed the first sentence as

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

court. See People v. Sandoval,

(Colo. App.

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

implicating double jeopardy concerns, it may not increase a lawful

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

omitted).

¶ 63 Everyone also agrees that the mittimus incorrectly shows a

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

motion for judgment of acquittal.

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

reflect the sentence announced, to remove the reference to

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

Count 24.

V. Conclusion

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

affirmed. The case is remanded with directions to correct the

mittimus.

JUDGE RICHMAN and JUDGE FOX concur.

34