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 January 24, 2019

No. 18CA1506, People v. Rieger — Criminal Law — Review of Judgments — Appeals by the Prosecution; Crimes — Tampering with Physical Evidence

In this prosecutorial appeal from an order of dismissal entered

after preliminary hearing, a division of the court of appeals holds

that an electronically stored photograph qualifies as “physical

evidence” for purposes of section 18-8-610, C.R.S. 2018, the

tampering with physical evidence statute. In resolving the appeal,

the division also determined that a duplicate of an electronically

stored photograph was “physical evidence” and that the evidence

presented at the preliminary hearing was sufficient to establish

probable cause to believe that the defendant committed the crime of

solicitation to commit tampering with physical evidence. COLORADO COURT OF APPEALS

Court of Appeals No. 18CA1506 Mesa County District Court No. 18CR298 Honorable Brian J. Flynn, Judge

The People of the State of Colorado,

Plaintiff-Appellant,

v.

Justin Walter Rieger,

Defendant-Appellee.

ORDER REVERSED AND CASE REMANDED WITH DIRECTIONS

Division II Opinion by JUDGE DAILEY Ashby and Vogt*, JJ., concur

Announced January 24, 2019

Daniel P. Rubinstein, District Attorney, George Alan Holley, II, Senior Deputy District Attorney, Grand Junction, Colorado, for Plaintiff-Appellant

Megan A. Ring, Colorado State Public Defender, Jessica Sommer, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellee

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S. 2018. ¶1 Pursuant to section 16-12-102(1), C.R.S. 2018, the People

appeal the district court’s order dismissing, after a preliminary

hearing, the case charging the defendant, Justin Walter Rieger, with

solicitation to commit tampering with physical evidence. We reverse

and remand with directions.

I. Background

¶2 Rieger had been charged in a separate case with numerous

offenses committed in connection with an alleged assault on his

girlfriend. While in jail, Rieger corresponded with the girlfriend

through Telmate, an electronic messaging system that allows

detainees to communicate with people outside the jail.

¶3 Through Telmate, the girlfriend forwarded to Rieger a picture

of bruises on her arms that he had allegedly caused during the

assault. Two days after she uploaded the picture on Telmate,

Rieger asked her to “take that [picture] off, because it . . . can

incriminate me.” The girlfriend removed the picture from the

Telmate account.

1 ¶4 A District Attorney’s investigator who was reviewing Rieger’s

Telmate account had seen the picture1 and Rieger’s correspondence

with the girlfriend.

¶5 The prosecution charged Rieger in this separate case with

solicitation to commit tampering with physical evidence. After a

preliminary hearing, the district court dismissed the case because

the definition of physical evidence . . . doesn’t apply to this electronic record; and so that — that’s the basis for me finding that there is not probable cause for that because I find it’s not physical evidence under . . . [section] 18-8- 610.

II. Analysis

¶6 The People contend that the district court improperly

dismissed the case. We agree.

¶7 Because we review a trial court’s probable cause ruling at a

preliminary hearing for an abuse of discretion, People v. Hall,

(Colo. 2000), we will not overturn such a ruling

absent a showing that it is either manifestly arbitrary,

1 According to the investigator, the bruising shown in the picture appeared worse than that depicted in the evidence gathered in the assault case. The investigator explained, though, that this was consistent with the nature of bruising “as bruising develops over time.”

2 unreasonable, or unfair, People v. Castro,

(Colo. 1993), or based on an erroneous view of the law, People v.

Moore,

(Colo. App. 2009).

¶8 Here, the trial court dismissed the case based on its

interpretation of section 18-8-610, C.R.S. 2018. The court’s

interpretation of the statute presents a question of law that we

review de novo. People v. Johnson,

, ¶ 9.

¶9 In interpreting a statute, our task is to ascertain and give

effect to the intent of the General Assembly. Dubois v. People,

(Colo. 2009). “To discern the legislative intent, we look

first to the language of the statute itself, reading words and phrases

in context and construing them according to rules of grammar and

common usage.” People v. Butler,

(citation

omitted). “Words and phrases that have acquired a technical or

particular meaning, whether by legislative definition or otherwise,

shall be construed accordingly.” § 2-4-101, C.R.S. 2018.

¶ 10 When the statutory language is clear and unambiguous, “we

apply the words as written without resort to other rules of statutory

interpretation.” People v. Shores,

(citing People

v. Van De Weghe,

). But “[w]hen the language of

3 a statute is susceptible of more than one reasonable understanding

and is therefore considered ambiguous,” People v. Jones,

, “a court must look beyond the language [of the statute]

and consider other factors, such as the statute’s legislative history

and the objective sought to be achieved by the legislation,” People v.

Lovato,

.

¶ 11 Pursuant to section 18-8-610(1)(a), “[a] person commits

tampering with physical evidence if, believing that an official

proceeding is pending or about to be instituted and acting without

legal right or authority, he . . . [d]estroys, mutilates, conceals,

removes, or alters physical evidence with intent to impair its verity

or availability in the pending or prospective official proceeding[.]”

(Emphasis added.) “‘Physical evidence’, as used in this section,

includes any article, object, document, record, or other thing of

physical substance[.]” § 18-8-610(2).2

¶ 12 The People contend that the trial court erred in interpreting

the definition of “physical evidence” to exclude electronic documents

2“Physical evidence” does not, however, “include a human body, part of a human body, or human remains subject to a violation of section 18-8-610.5.” § 18-8-610(2), C.R.S. 2018.

4 such as the photograph the girlfriend uploaded to the Telmate

system. They argue that under the “last antecedent rule,”3 the

phrase “of physical substance” modifies only the last noun (i.e.,

“other thing”) and not the previous ones (i.e., “any article, object,

document, record”). Rieger, on the other hand, argues that, even if

the “last antecedent rule” applies, an exception to the rule also

applies — an exception that would tie the phrase “of physical

substance” as much to the words “article,” “object,” “document,”

and “record,” as it is tied to the phrase “other thing.”4

¶ 13 We do not, however, apply either of the parties’ proffered rules

of statutory construction because it is otherwise clear to us that

electronically stored documents or information falls within the

3 Under the last antecedent rule — which was legislatively repudiated in 1981 after the tampering statute had been enacted — there is a “presumption that referential and qualifying words and phrases refer solely to the last antecedent clause immediately preceding them.” People v. O’Neal,

(Colo. App. 2009).

4 The “exception” to which Rieger refers is this: “When a referential or qualifying clause follows several words or phrases and is applicable as much to the first word or phrase as to the others in the list, . . . the clause should be applied to all of the words or phrases that preceded it.” Estate of David v. Snelson,

(Colo. 1989).

5 ambit of the phrase “physical evidence.” See, e.g., Holliday v.

Bestop, Inc.,

, 706 n.5 (Colo. 2001) (“Because the

language of the statute is unambiguous on this point, we do not

resort to interpretive rules of statutory construction and thus do

not address the parties’ arguments regarding the effect of various

rules of statutory construction, such as the ‘last antecedent

rule’. . . .”).5

¶ 14 In this regard, we note that the definition of “physical

evidence” is phrased not in terms of “physical evidence means” but,

rather, in terms of “physical evidence includes.” “The word

‘includes’ is generally used as a term of extension or enlargement

when used in a statutory definition.” Freedom Newspapers, Inc. v.

5 We need not, then, independently determine the precise meaning of the term “physical substance”; whether the phrase “any. . . record” can be read independently of the phrase “physical substance”; and, if so, whether an electronically stored photograph qualifies as a “record” encompassed within the definition of “physical evidence.” Cf. Henson v. State,

(Ga. Ct. App. 2012) (“[T]he ordinary signification of ‘record’ is ‘[a]n account of some fact or event preserved in writing or other permanent form . . .’ or ‘any thing . . . serving to indicate or give evidence of, or preserve the memory of, a fact or event.’” And given that a picture certainly preserves or gives evidence of a fact or event — in many instances as efficiently as a thousand words — Henson’s claim that the term “electronic records” does not encompass pictures or photographs lacks merit.”).

6 Tollefson,

(Colo. App. 1998). It “denotes that

the examples listed are not exhaustive or exclusive,” Preston v.

Dupont,

(Colo. 2001), but only illustrative, People

v. Patton,

, ¶¶ 14-16; see Bryan A. Garner, Garner’s

Dictionary of Legal Usage 439 (3d ed. 2011) (“[I]ncluding . . . should

not be used to introduce an exhaustive list, for it implies that the

list is only partial[;] . . . ‘the use of the word including indicates that

the specified list . . . is illustrative, not exhaustive.’”).

¶ 15 The phrase “physical evidence” has an established meaning in

law, representing the form in which evidence is presented to a fact-

finder. As noted in one commentary:

There are generally two types of evidence: the words or testimony of the witnesses, and physical evidence. Most broadly viewed, the second type of evidence is anything that conveys a firsthand impression to [factfinders]. It includes weapons, writings, photographs, and charts.

U.S. Dep’t of Army, Pamphlet No. 27-22, Military Criminal Law

Evidence, § 11-1 (July 15, 1987),

; see 23 C.J.S.

Criminal Procedure and Rights of the Accused § 1148 (“[P]hysical

evidence is evidence addressed directly to the senses of the court or

jury without the intervention of the testimony of witnesses, as

7 where various things are exhibited in open court, or an object which

relates to or explains the issues or forms a part of a transaction.”).

At least one state court has applied this meaning to the phrase

“physical evidence” in deciding an issue under a statute similar to

ours prohibiting tampering with physical evidence. See State v.

Peplow,

(equating “physical evidence” with “a

‘thing presented to the senses’”).

¶ 16 Other jurisdictions recognize that photographs are a form of

“physical evidence.” See, e.g., Medina v. Williams,

(9th Cir. 2014) (photographs of bruises and cuts inflicted in

assault); People v. Elizalde,

(Cal. 2015)

(“Examples of ‘real or physical evidence’ include fingerprints,

photographs, handwriting exemplars, blood samples . . . .”);

England v. State,

(Fla. 2006) (autopsy

photographs); State v. Beynon,

(S.D. 1992)

(photographs of injuries inflicted in assault).

¶ 17 CRE 1001(2) defines “photographs” as “includ[ing] still

photographs, X-ray films, and motion pictures.” In State v. William

M.,

(W. Va. 2010), the West Virginia Supreme

Court held that “digital images are ‘photographs’ under Rule

8 1001(2) of the West Virginia Rules of Evidence,” a rule identical to

Colorado’s. In reaching its conclusion, the court noted that there

was “no requirement under our rule that an image must be stored

on photographic film or paper to be considered a photograph.” Id.;

see 7 Daniel D. Blinka, Wisconsin Practice Series: Wisconsin

Evidence § 1001.3, Westlaw (4th ed. database updated Aug. 2018)

(“Nothing is excluded from the definition [of ‘photographs’ in

Wisconsin Statute section 910.01(2) (West 2018)]; it comfortably

reaches electronic images captured by Smartphones and other

digital technology.”).

¶ 18 Further, courts have upheld the admissibility of digital

photographs based on the same or similar type of foundation

required for admitting traditional photographs. See, e.g., Owens v.

State,

(Ark. 2005); People v. Goldsmith,

(Cal. 2014); State v. Marquardt,

,

.

¶ 19 Because (1) we find persuasive the authorities treating, for

evidentiary purposes, digital images as “photographs”; and (2)

“photographs” fall within well-accepted notions of “physical

evidence,” we conclude that electronically stored, digital images like

9 the one deleted here qualify as “physical evidence” for purposes of

the tampering with physical evidence statute.

¶ 20 To reach any other conclusion would, in our view, lead to an

absurd result. The intent of the General Assembly in enacting the

tampering statute is clear: to punish attempts to subvert the

administration of justice. See People v. Atencio,

(Colo. App. 2005) (“[I]t is evident from the language of [section 18-8-

610] that the General Assembly intended to criminalize behavior

that interferes with an official proceeding . . . .”); cf. People v.

Yascavage,

(Colo. 2004) (The purpose of the

witness tampering statute “was to punish any attempt to induce

another to testify falsely or otherwise to subvert the administration

of justice.”).

¶ 21 In today’s society, vast amounts of documents, files,

photographs, and records are stored electronically. Allowing

individuals to conceal, remove, or alter digitally stored information

about a crime would run contrary to the intent of the statute to

protect the administration of justice.

¶ 22 Consequently, we conclude that the trial court erred in

dismissing the case on the ground that electronically stored images

10 do not qualify as “physical evidence.” That conclusion does not,

however, end our analysis.

¶ 23 “[O]n appeal a party may defend the judgment of the trial

court on any ground supported by the record, regardless of whether

that ground was relied upon or even contemplated by the trial

court.” People v. Quintana,

(Colo. 1994). In

this regard, Rieger contends that even if an electronically stored

photograph falls with the meaning of physical evidence, this court

should still affirm the district court’s order dismissing the case

because

 an electronic duplicate of an image uploaded to Telmate

does not constitute “physical evidence,” and

 “the removal of this image from that communications

system does not evince a specific intent to make the

image unavailable at trial.”

¶ 24 Rieger bases the first argument, factually, on the investigator’s

testimony that he believed that the original photograph was taken

by the girlfriend with her cell phone and that only “a copy” of the

picture was uploaded to Telmate. Rieger bases the legal component

of this argument not on the definition of “physical evidence,” but on

11 an interpretation of that term in light of the actus reus (i.e.,

“[d]estroys, mutilates, conceals, removes or alters physical

evidence,” § 18-8-610(1)(a)) and mens rea (i.e., to impair the “verity

or availability” of the item “in the pending or prospective official

proceeding,” id.) elements of the crime. Thus, he argues,

the definition of physical evidence is limited to evidence, which, when destroyed, mutilated, concealed, removed or altered would impair that item’s verity or availability. Therefore, this definition does not encompass an electronic duplicate uploaded to a particular platform. Because the uploaded file is a copy, and not the original, any tampering with it could not affect the verity or availability of the original photograph – any changes to the duplicate would simply not affect the underlying data file, which is the actual evidence in the case. Thus, this type of evidence is not “physical evidence” within the meaning of the tampering with physical evidence statute.

¶ 25 The problem with this argument is its premise, i.e., that

without satisfying the other elements of the crime, there can be no

“physical evidence.” A proper analysis, though, produces this

result: without satisfying the other (actus reus and mens rea)

elements of the crime, there is no crime.

12 ¶ 26 We perceive no reason why a duplicate of a photograph cannot

constitute “physical evidence” for purposes of the tampering

statute. Eliminating a copy of a photograph that could have been

used at trial impairs the availability of the photograph, even if other

copies exist.

¶ 27 The significant issue is the intent with which a person acts

with respect to “physical evidence,” copy or otherwise. As

recognized by the drafters of a provision in the Model Penal Code

similar to ours, the “limiting factor” of the offense

is the requirement of specific intent. The statute punishes any kind of tampering with any document or thing, but only if the defendant acts ‘with purpose to impair its verity or availability’ in an official proceeding . . . . This designation of specific purpose identifies the ultimate evil as obstruction of justice rather than destruction of property and restricts the scope of the offense to persons who consciously intend to accomplish the forbidden harm. . . . [The statute] therefore applies only when the conduct is undertaken with purpose to impair verity or availability of a record in a proceeding . . . .

Model Penal Code and Commentaries § 241.7 cmt. 3, at 180 (Am.

Law Inst. 1980).

13 ¶ 28 We now turn to Rieger’s second argument, that is, whether the

desired removal of a duplicate image from the Telmate

communications system evinces a specific intent to make the image

unavailable at trial.

¶ 29 At the outset, we acknowledge that there are some

circumstances in which the removal of one of several identical items

may not tend to prove a specific intent to make evidence

unavailable for use in an official proceeding. Take, for instance, the

circumstances in Costanzo v. State,

(Fla. Dist. Ct.

App. 2014). In Costanzo, the defendant, a police officer, made a

video on his cell phone of statements from a suspect about a

criminal case where the defendants were two other police officers

and friends of the defendant.

. He then showed the video

to his supervisor, texted it to one of the defendants, and used his

work email to send it to an attorney for the Police Benevolent

Association.

He then deleted the video from his cell phone.

A jury convicted him of tampering with physical evidence.

¶ 30 On appeal, the Florida District Court of Appeal reversed the

defendant’s conviction, reasoning as follows:

14 [A] defendant’s equivocal conduct toward evidence is insufficient to demonstrate the intent necessary for a section 918.13 violation . . . .

....

Such equivocal conduct differs from that conduct that completely destroys potential evidence, such as swallowing an object.

....

In this case, after appellant recorded the video on his cell phone, he showed it to his supervisor, texted it to [his friend], and e-mailed it to an attorney for the Police Benevolent Association. As we know from videos that have gone viral, texting or e-mailing a video is the antithesis of trying to destroy it. In fact, with the assistance of technology, the video was recovered from two separate locations. There was insufficient evidence of appellant’s intent to violate the tampering statute. In addition, there was insufficient evidence that the video was “destroy[ed]” within the meaning of the statute; the statute does not criminalize deleting evidence existing in the memory of a particular electronic device, particularly where such evidence resides elsewhere in the electronic ether. The trial court’s denial of appellant’s motion for judgment of acquittal was therefore erroneous.

.6

6Notably, perhaps, the court did not decide the case based on whether the video constituted “physical evidence.”

15 ¶ 31 In Costanzo, the defendant created the video, distributed it to

others, and then deleted the video he had created on his cellphone.

Under these circumstances (i.e., without any further insight into

the defendant’s state of mind), it would be counterintuitive to find

that, in deleting the video from his phone, the defendant intended

to impair the discovery or use of the video, or that he “destroyed” it,

making it unavailable for trial.

¶ 32 The present case is readily distinguishable from Costanzo. In

this case, there was no evidence of a number of duplicates of which

Rieger was shown to be aware, much less shown to have distributed

to others. Although Rieger never said anything to the girlfriend

about destroying or concealing any “original” of the photo, he asked

that the photograph on Telmate be removed because it could

“incriminate [him].”

¶ 33 Most importantly, in contrast to Costanzo, here we are

reviewing the sufficiency of the evidence not in relation to a

conviction after trial but in relation to a probable cause

determination after preliminary hearing.

¶ 34 “[P]robable cause is a low standard.” People v. Fry,

(Colo. 2004). The prosecution is not required to

16 produce evidence establishing beyond a reasonable doubt that the

defendant committed the crime or even the likelihood that the

defendant committed the crime; instead, it need only present

evidence sufficient to induce a person of ordinary prudence and

caution to entertain a reasonable belief that the defendant

committed the crime. Hall,

.

¶ 35 In determining whether the prosecution has met its burden at

a preliminary hearing, the trial court must view the evidence as a

whole and draw all reasonable inferences in the light most favorable

to the prosecution. People v. Keene,

(Colo.

App. 2009).

¶ 36 Rieger’s statement that he wanted the picture removed from

the Telmate account because it “incriminate[d]” him is some

evidence that he intended to make that picture unavailable for use

by the prosecution. That he did not ask the girlfriend further to

delete the original picture does not, in our view, undermine that

intent as a matter of law. Unlike in Costanzo, Rieger had no reason

to believe that the authorities knew or had reason to know of the

picture on Telmate or any other place; it could reasonably be

inferred from his statement that Rieger meant to have the picture

17 removed from the account before the authorities learned of its

existence — in which case they would have had no reason to

suspect that another such picture existed anywhere.

¶ 37 In our view, the evidence was sufficient to induce a person of

ordinary prudence and caution to entertain a reasonable belief that

Rieger intended to deprive the prosecution of the ability to use that

picture. Because probable cause supported the charge of

solicitation to commit tampering with physical evidence, the case

should not have been dismissed.

III. Disposition

¶ 38 The district court’s order of dismissal is reversed, and the

matter is remanded with directions to reinstate the case and for

further proceedings with respect thereto.

JUDGE ASHBY and JUDGE VOGT concur.

18