COLORADO COURT OF APPEALS                                      2017COA88


Court of Appeals No. 14CA1393
Douglas County District Court No. 13CR145
Honorable Paul A. King, Judge


The People of the State of Colorado,

Plaintiff-Appellee,

v.

Shawna Lee Hoggard,

Defendant-Appellant.


                            JUDGMENT AFFIRMED

                                  Division VI
                         Opinion by JUDGE WELLING
                        Furman and Terry, JJ., concur

                          Announced June 29, 2017


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

Douglas K. Wilson, Colorado State Public Defender, Meghan M. Morris, Deputy
State Public Defender, Denver, Colorado, for Defendant-Appellant
¶1    During the course of a heated child-custody dispute,

 defendant Shawna Lee Hoggard forwarded to the court-appointed

 child and family investigator (CFI) a chain of e-mails between her

 and her ex-husband. Hoggard allegedly falsified that e-mail chain

 by adding five sentences that made it appear that her ex-husband

 had threatened her. As a result of that alleged falsification,

 Hoggard was charged with (and ultimately convicted of) second

 degree forgery and attempt to influence a public servant. Hoggard

 appeals those convictions.

¶2    On appeal, Hoggard contends that the jury was erroneously

 instructed on both charges. First, she contends that the trial court

 constructively amended the second degree forgery charge by

 instructing the jury on the uncharged and more serious offense of

 felony forgery. Second, she contends that the trial court erred in its

 instruction on attempt to influence a public servant by instructing

 the jury that the “intent” element applied only to one element of the

 offense, when, in fact, the intent element applies to two additional

 elements of the offense as well.

¶3    Hoggard acknowledges that she did not raise either of the

 alleged errors that she identifies on appeal during trial, but


                                    1
 contends that those instructional errors require reversal of her

 convictions as plain error. The People contend that appellate review

 is entirely barred because Hoggard either invited the error or waived

 her right to review by not objecting at trial when given the

 opportunity to do so. The People further argue that even if we

 conclude that appellate review is appropriate, the instructions do

 not merit reversal under the plain error standard.

¶4    We reject the People’s argument that the invited error or

 waiver doctrines bar appellate review under the circumstances of

 this case and, instead, conclude that the instructional errors are

 subject to plain error review. We further conclude that the trial

 court committed obvious instructional error in both instances. But

 we disagree that the trial court’s error as to the second degree

 forgery charge effected a constructive amendment of that charge or

 constituted plain error. We finally conclude that there is no

 reasonable probability that the trial court’s failure to instruct the

 jury on the required mental state for each element of the attempt to

 influence a public servant charge contributed to Hoggard’s

 conviction of that offense and, therefore, was not plain error. We

 affirm.


                                    2
                         I.     Background

¶5    In the course of her investigation, the CFI received an e-mail

 from Hoggard forwarding a chain of what purported to be prior

 correspondence between her and her ex-husband. The forwarded

 e-mail chain included a threat ostensibly made by Hoggard’s

 ex-husband. The CFI forwarded the e-mail chain to Hoggard’s

 ex-husband with the threatening language highlighted and asked

 what his intent was in writing the e-mail. He responded that he did

 not write the threatening portion of the e-mail. He sent the CFI a

 copy of what he said was the original e-mail, which did not contain

 the threatening language. Hoggard’s ex-husband then contacted

 the police to report that an e-mail in his name had been falsified.

¶6    Hoggard provided the investigating police officer with access to

 her e-mail account, including a folder of correspondence with her

 ex-husband. The officer found a version of the e-mail identical to

 that which had been forwarded to the CFI, except that it did not

 include the threatening language. But when the officer accessed

 Hoggard’s sent folder, he found the version of the e-mail containing

 the threatening language.




                                   3
¶7     Hoggard was charged with attempt to influence a public

  servant, a class 4 felony, and second degree forgery, a class 1

  misdemeanor.

¶8     As discussed at greater length below, the prosecutor tendered

  to the court an instruction for second degree forgery that tracked

  the elements of felony forgery and an instruction for attempt to

  influence a public servant that did not set the mens rea element of

  intent out as a separate element. At the jury instruction

  conference, neither side requested any changes to the instructions

  tendered by the prosecution.

¶9     Hoggard appeals both convictions based on independent

  contentions of unpreserved instructional error.

              II.    Reviewability of Instructional Error

¶ 10   The People argue that, as a threshold matter, the doctrines of

  invited error and waiver preclude appellate review of Hoggard’s

  instructional error claims. The People contend that defense counsel

  approved the disputed jury instructions, thereby either inviting the

  errors of which Hoggard now complains or waiving any right to

  appellate review of the asserted instructional errors. We disagree.




                                    4
                            A.    Invited Error

¶ 11   The invited error doctrine is premised on “the rule that a party

  may not complain on appeal of an error that [s]he has invited or

  injected into the case.” People v. Zapata, 779 P.2d 1307, 1309

  (Colo. 1989). The doctrine applies “where [a] party expressly

  acquiesces to conduct by the court or the opposing party,” Horton v.

  Suthers, 43 P.3d 611, 619 (Colo. 2002), and precludes appellate

  review of instructional error if that error was “injected by the

  defendant as a matter of trial strategy,” Zapata, 779 P.2d at 1309.

  Invited error may also be found where an “omission [by counsel] is

  strategic.” People v. Stewart, 55 P.3d 107, 119 (Colo. 2002). The

  invited error doctrine, however, “does not preclude appellate review

  of errors resulting from attorney incompetence” or from

  inadvertence. People v. Gross, 2012 CO 60M, ¶ 9 (citing Stewart,

  55 P.3d at 119).

¶ 12   We conclude that defense counsel’s failure to object to the

  instructional errors does not amount to invited error.

¶ 13   With respect to the jury instruction on the charge of attempt

  to influence a public servant, the crux of Hoggard’s defense to that

  charge was that she did not act with the intent necessary to satisfy


                                     5
  the “attempt[] to influence a public servant” and “by means of

  deceit” elements. She asserts that the instruction is erroneous

  because it did not specify the culpable mental state required for

  those very elements. Given the juxtaposition between trial strategy

  and the asserted error in the instruction, we discern no plausible

  strategic motive for defense counsel’s failure to object, and,

  therefore, conclude that counsel’s failure was an oversight, not a

  strategy. See Stewart, 55 P.3d at 119 (finding no invited error

  based on, inter alia, “the heavy reliance [defendant] placed on [a]

  theory during trial”). Thus, invited error does not apply here.

¶ 14   As to the jury instruction on second degree forgery, we note

  that the only distinction between the two offenses is that felony

  forgery requires additional proof that the falsified document was of

  a particular type. Because the type of document at issue (an

  e-mail) was never contested at trial, we are persuaded that defense

  counsel’s failure to object was, likewise, the result of inadvertence,

  and that any error was not invited.

                               B.    Waiver

¶ 15   The lines distinguishing the doctrine of invited error from that

  of waiver are not precisely drawn. See People v. Rediger, 2015 COA


                                     6
26, ¶ 56 (cert. granted Feb. 16, 2016) (citing decisions treating

“implied waiver” as synonymous with “invited error”); People v.

Greer, 262 P.3d 920, 937 n.7 (Colo. App. 2011) (“Invited error is

akin to waived error.”). Although divisions of this court have

recently clarified the parameters of waiver, see People v. Rail, 2016

COA 24, ¶¶ 27-41; Rediger, ¶¶ 51-60, the precise contours of the

waiver doctrine in Colorado are not yet clearly settled.1 Each

division of this court that has analyzed the waiver issue, however,

has held that waiver requires some “affirmative conduct,” albeit to

varying degrees. See, e.g., People v. Yoder, 2016 COA 50, ¶ 10

(finding waiver where counsel objected to certain protective order

provisions, but stated that he had no objection to others); Rail,

¶¶ 36-37 (finding instructional error claim waived by “affirmative

conduct”); Rediger, ¶¶ 59-61. Although Rediger provides the closest

analogy to the circumstances of this case, we conclude that the


1 The Colorado Supreme Court has granted certiorari to review
whether the division in Rediger “erred in applying the waiver
doctrine as a complete bar to appellate review” on the basis of
defense counsel’s statement that counsel was “satisfied” with the
tendered jury instruction, but where defense counsel was unaware
that the tendered instruction erroneously included an uncharged
offense. See People v. Rediger, No. 15SC326, 2016 WL 1746021
(Colo. Feb. 16, 2016) (unpublished order).

                                   7
  facts before us are distinguishable, though not markedly, from

  those presented in Rediger.

¶ 16   In Rediger, the court ordered the prosecutor to prepare

  proposed jury instructions before trial, and ordered defense counsel

  to file any objections within two days following the submission of

  the prosecutor’s proposed instructions. Rediger, ¶ 45. The

  proposed instructions included elemental instructions under a

  different subsection of the statute than was charged in the

  information. Id. Defense counsel did not object. Id. During jury

  selection, the court described the charges against the defendant

  using the erroneous instruction, and defense counsel did not object.

  Id. at ¶ 46. After the close of evidence and following a jury

  instruction conference, the court asked if defense counsel was

  “satisfied with the instructions”; defense counsel responded, “Yes.

  Defense is satisfied.” Id. at ¶ 47. The court then instructed the

  jury using the erroneous instruction; again, defense counsel did not

  object. Id. at ¶ 48. Based on these circumstances, the Rediger

  division concluded that, through counsel’s “affirmative conduct,”

  the defendant had waived any claim of instructional error or relief

  based on any alleged constructive amendment. Id. at ¶ 64.


                                     8
¶ 17   Here, the prosecution’s proposed jury instructions were

  provided on the morning of the first day of trial, without the

  opportunity to deliberate and object that had been present in

  Rediger. Further, the errors in the instructions alleged by Hoggard

  were not evident during the court’s initial reading of the charges to

  the jury, again in contrast to Rediger. Finally, at the close of the

  jury instruction conference, defense counsel merely said that there

  was no objection from the defense, and did not affirmatively state

  that the defense was “satisfied” with the instructions, as was relied

  on in Rediger. Thus, Rediger is factually distinguishable, albeit

  thinly.

¶ 18   To the extent, however, that a fair reading of Rediger’s waiver

  analysis reaches the facts presented here — and there is a sound

  argument that it does, see Rediger, ¶ 57 (noting that “[n]o Colorado

  case has tempered waiver by distinguishing mere general

  acquiescence from other forms of affirmative conduct”) — we

  respectfully decline to follow it. This is a run-of-the-mill example of

  an unpreserved jury instruction appeal: the prosecution tendered

  instructions; the court asked if there were any objections; both

  sides simply said, “no”; and the court gave the instructions as


                                     9
  tendered. This is the heartland of plain error instructional review.

  Indeed, if failing to object to an instruction is waiver and objecting

  is preservation, the space remaining for plain error review in the

  instructional error context diminishes nearly to the point of

  vanishing.

¶ 19   Refusing to find waiver here does not give the defendant a free

  pass for failing to timely object; she must still run the daunting

  gauntlet of plain error review to obtain any relief. Moreover, finding

  waiver here would have perverse consequences. If simply stating

  “no objection” constitutes waiver barring even plain error review,

  then counsel’s only readily apparent option to avoid waiver is to

  take no position at all (or refuse to answer) when asked by the trial

  court if there is any objection. The practical effect of not objecting

  when invited to do so and taking no position is the same: conveying

  to the court that no particularized objection comes to defense

  counsel’s mind. But the latter creates an unnecessarily

  antagonistic trial environment by obligating prudent defense

  counsel to “take no position” each time the trial court invites input

  but no specific objection comes to mind.




                                    10
¶ 20   Thus, we hold that waiver does not bar appellate review under

  the circumstances presented here. See People v. Perez-Rodriguez,

  2017 COA 77, ¶ 28 (holding that counsel’s statement of “no

  objection” in response to “the court’s inquiry [that] grouped all

  twenty-four instructions” together “does not establish deliberate

  conduct sufficient to support invited error or waiver”); see also

  United States v. Harris, 695 F.3d 1125, 1130 n.4 (10th Cir. 2012)

  (holding that defense counsel had not waived right to appeal by

  replying, “No, Your Honor” when trial court asked whether there

  were objections to jury instructions); United States v. Zubia-Torres,

  550 F.3d 1202, 1207 (10th Cir. 2008) (“[T]here must be some

  evidence that the waiver is knowing and voluntary, beyond

  counsel’s rote statement that she is not objecting . . . .”). We next

  turn to the merits of Hoggard’s appeal.

         III.       Second Degree Forgery Instructional Error

¶ 21   The trial court gave the jury the following elemental

  instruction for second degree forgery:

                The elements of the crime of Second Degree
                Forgery are:

                1. That the defendant,



                                     11
             2. in the State of Colorado, at or about the
             date and place charged,

             3. with intent to defraud,

             4. falsely made, completed, or uttered a
             written instrument,

             5. which was or purported to be, or which was
             calculated to become or represent if completed
             an instrument which does or may evidence,
             create, or otherwise affect a legal right, interest,
             obligation, or status; namely, an email.

  (Emphasis added.)

¶ 22   While paragraphs one through four correctly describe the

  elements of second degree forgery, paragraph five is an element of

  felony forgery,2 not second degree forgery.

¶ 23   As relevant here, felony forgery is described as follows:

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

             ...




  2 The two offenses are “forgery,” which is a class 5 felony, and
  “second degree forgery,” which is class 1 misdemeanor. For the
  sake of clarity, we refer to the former as “felony forgery” in this
  opinion.

                                      12
             (c) A deed, will, codicil, contract, assignment,
             commercial instrument, promissory note,
             check, or other instrument which does or may
             evidence, create, transfer, terminate, or
             otherwise affect a legal right, interest,
             obligation, or status . . . .

  § 18-5-102(1)(c), C.R.S. 2016 (emphasis added).

¶ 24   Second degree forgery covers all other written instruments:

             A person commits second degree forgery if,
             with intent to defraud, such person falsely
             makes, completes, alters, or utters a written
             instrument of a kind not described in section
             18-5-102 . . . .

  § 18-5-104(1), C.R.S. 2016 (emphasis added).

¶ 25   Under this comprehensive statutory scheme, it is always a

  crime when a person “with intent to defraud, . . . falsely makes,

  completes, alters, or utters a written instrument,” but it is only a

  felony when the written instrument is of a type specified in section

  18-5-102(1).

¶ 26   Hoggard argues that her conviction for second degree forgery

  must be reversed because the trial court constructively amended

  the second degree forgery charge when it gave an instruction that

  tracked the elements of felony forgery. Although the trial court’s

  forgery instruction was erroneous, we conclude that the erroneous



                                    13
  instruction neither effected a constructive amendment nor

  constituted plain error. We, therefore, affirm the conviction.

              A.    There Was No Constructive Amendment

¶ 27   A constructive amendment occurs when a court “changes an

  essential element of the charged offense and thereby alters the

  substance of the charging instrument.” People v. Rodriguez, 914

  P.2d 230, 257 (Colo. 1996). Constructively amending a charge

  violates a defendant’s constitutional due process rights because it

  subjects the defendant to the risk of conviction for an offense that

  was not originally charged. Id. In other words, a constructive

  amendment presents a risk that a defendant’s conviction is based

  on conduct different than what was charged in the information.

  See People v. Madden, 111 P.3d 452, 461 (Colo. 2005) (“To prevail

  on a constructive amendment claim, a defendant must demonstrate

  that either the proof at trial or the trial court’s jury instructions so

  altered an essential element of the charge that, upon review, it is

  uncertain whether the defendant was convicted of conduct that was

  the subject of the grand jury’s indictment.” (quoting United States v.

  Milstein, 401 F.3d 53, 65 (2d Cir. 2005))). Here, the erroneous jury

  instruction did not result in the government proving conduct


                                     14
  different than what was charged; instead, the government

  unnecessarily assumed the burden of proving everything that was

  charged and more.

¶ 28   In People v. Riley, 2015 COA 152, a division of this court

  considered an instructional error identical to the one presented

  here and concluded that the trial court’s error constructively

  amended the charge against the defendant. Id. at ¶ 15. In reaching

  its conclusion, however, the Riley division specifically rejected the

  People’s argument that the erroneous instruction did not effect a

  constructive amendment and reversal was not warranted because

  second degree forgery is a lesser included offense of felony forgery.

  Id. at ¶¶ 15-16. That is where we part ways with the division in

  Riley. See People v. Isom, 2015 COA 89, ¶ 17 (cert. granted on other

  grounds Nov. 23, 2015) (A division of the court of appeals is not

  bound to follow the precedent established by another division “if

  our analysis leads us to a different result.”).

¶ 29   The Riley division relied exclusively on the “statutory

  elements” test to conclude that second degree forgery is not a lesser

  included offense of felony forgery. Riley, ¶ 16 (citing People in

  Interest of H.W., III, 226 P.3d 1134, 1138 (Colo. App. 2009)); see


                                     15
  also § 18-1-408(5)(a), C.R.S. 2016. We agree with the Riley division

  that second degree forgery is not a lesser included offense of felony

  forgery under the “statutory elements” test. But the statutory

  elements test is not the exclusive test for determining whether an

  offense is a lesser included offense of another. See Reyna-Abarca v.

  People, 2017 CO 15, ¶ 51 n.3 (recognizing that section 18-1-

  408(5)(c) provides a distinct basis from the “strict elements” test for

  determining whether an offense is a lesser included offense); People

  v. Raymer, 662 P.2d 1066, 1069 (Colo. 1983) (“We neither held nor

  implied . . . that subsection (5)(a) of section 18-1-408 constituted

  the only test of a lesser included offense.”).

¶ 30   We decline to follow Riley because we conclude that second

  degree forgery is a lesser included offense of felony forgery under

  the test set forth in section 18-1-408(5)(c) — a test which the Riley

  division was never asked to consider and did not address.

¶ 31   Section 18-1-408(5)(c) provides:

             (5) A defendant may be convicted of an offense
             included in an offense charged in the
             indictment or the information. An offense is so
             included when:

             ...



                                     16
             (c) It differs from the offense charged only in
             the respect that a less serious injury or risk of
             injury to the same person, property, or public
             interest or a lesser kind of culpability suffices
             to establish its commission.

¶ 32   After considering the “single-distinction” test set forth in

  section 18-1-408(5)(c), we conclude that second degree forgery is a

  lesser included offense of felony forgery. The mens rea and actus

  reus elements for both forgery offenses are identical; to commit

  either offense, a person must, “with intent to defraud, . . . falsely

  make[], complete[], alter[], or utter[] a written instrument.” The

  offenses differ only with respect to the type of document involved in

  the crime. See § 18-5-102(a)-(h), C.R.S. 2016. The second degree

  forgery offense does not enumerate types of documents that give

  rise to a misdemeanor charge. Instead, the statute states that “[a]

  person commits second degree forgery if” that person falsifies “a

  written instrument of a kind not described in section 18-5-102 or

  18-5-104.5.” § 18-5-104 (emphasis added).

¶ 33   The catch-all structure of the second degree forgery statute

  allows a defendant to be fairly convicted of the misdemeanor offense

  without a particularized finding as to the type of document that was

  falsified. The distinction between the offenses, therefore, boils down


                                     17
  to felony forgery’s requirement that the falsified document be of a

  particular type. Second degree forgery does not require proof of

  that element. Because this is the only distinction between the two

  offenses, we hold that second degree forgery is, indeed, a lesser

  included offense of felony forgery under the test set forth in section

  18-1-408(5)(c). And, therefore, instructing the jury on felony forgery

  was not a constructive amendment because Hoggard was both

  charged with and convicted of second degree forgery, a lesser

  included offense of felony forgery.

            B.   The Trial Court Did Not Commit Plain Error

¶ 34   Having concluded that there was no constructive amendment,

  we turn to whether Hoggard has shown plain instructional error.

  See Liggett v. People, 135 P.3d 725, 733 (Colo. 2006) (unpreserved

  claims of instructional error are reviewed for plain error). To

  reverse a conviction for plain error, we must find that (1) an error

  occurred; (2) the error was obvious; and (3) the error so undermined

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

  judgment’s reliability. People v. Helms, 2016 COA 90, ¶ 14. “As

  applied to jury instructions, the defendant must ‘demonstrate not

  only that the instruction affected a substantial right, but also that


                                    18
  the record reveals a reasonable possibility that the error contributed

  to [her] conviction.’” People v. Miller, 113 P.3d 743, 750 (Colo. 2005)

  (quoting People v. Garcia, 28 P.3d 340, 344 (Colo. 2001)).

¶ 35   We cannot find plain error here. While the trial court made an

  instructional error and that error was obvious, Hoggard was not

  prejudiced by the error. As noted above, the only distinction

  between the offenses is that felony forgery specifies certain types of

  documents that give rise to a felony charge. But the type of falsified

  document (an e-mail) was never disputed at trial. Therefore, there

  is no reasonable likelihood that the instructional error affected the

  outcome of the trial. Hoggard was charged with and convicted of

  second degree forgery. While the jury was erroneously instructed

  on felony forgery, Hoggard’s defense to that uncharged offense is

  necessarily the same as the defense she put on at trial. Thus, we

  cannot identify any plausible way in which the trial court’s error

  affected the outcome of the trial.

¶ 36   We, therefore, conclude that Hoggard’s conviction for second

  degree forgery, a lesser included offense of the instructed offense,

  must be affirmed, notwithstanding the instructional error. Cf.

  People v. Shields, 822 P.2d 15, 22 (Colo. 1991) (finding no plain


                                       19
  error where “[n]ot only did the instructional error committed . . . not

  prejudice the defendant, it inured to his benefit”); cf. People v.

  Sepulveda, 65 P.3d 1002, 1006-07 (Colo. 2003) (sustaining

  conviction for lesser included offense where jury was erroneously

  instructed on greater offense and convicted); see also id. at 1006

  (citing Rutledge v. United States, 517 U.S. 292, 305-06 & n.15

  (1996), to note that the United States Supreme Court has

  “approv[ed] the practice of substituting conviction for a lesser

  included offense when a conviction for a greater offense is reversed

  on grounds exclusively related to the greater offense”).

            IV.      Attempt to Influence a Public Servant

¶ 37   Hoggard next argues that her conviction for attempt to

  influence a public servant must be reversed because the trial court

  did not instruct the jury on the required mens rea for each element

  of the offense, thereby violating her constitutional due process

  rights. She contends that, by including the intent requirement in

  only one element, the instruction contravened the statutory

  presumption that a mental state specified for an offense applies to

  all elements of that offense. Hoggard argues that the trial court’s

  erroneous jury instruction is plain error. We disagree.


                                     20
¶ 38   We review this issue of unpreserved instructional error

  challenge for plain error.

                  A.    The Instruction Was Erroneous

¶ 39   The attempt to influence a public servant statute reads as

  follows:

             Any 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.

  § 18-8-306, C.R.S. 2016.

¶ 40   Because the statute prescribes the culpable mental state of

  “intent” for one element, the same mens rea must be proved for

  each element of the offense, unless an intent to limit its application

  “clearly appears.” § 18-1-503(4), C.R.S. 2016; accord People v.

  Coleby, 34 P.3d 422, 424 (Colo. 2001); People v. Perez, 2016 CO 12,

  ¶ 11. No such intent clearly appears in the attempt to influence a

  public servant statute — and neither party contends otherwise.

  Therefore, the mens rea requirement of “intent” applies to each

  element of the offense.


                                    21
¶ 41   The trial court gave the following instruction on the charge of

  attempt to influence a public servant:

             The elements of the crime of Attempt to
             Influence a Public Servant are:

             1.   That the defendant,

             2.   in the State of Colorado, at or about the
             date and place charged,

             3.   attempted to influence a public servant,

             4.   by means of deceit,

             5.   with the intent to alter or affect the public
             servant’s decision, vote, opinion, or action
             concerning any matter,

             6.   which was considered or performed by
             the public servant or the agency or body of
             which the public servant was a member.

  (Emphasis added.)

¶ 42   Although the trial court’s instruction on the charge tracked

  the text of the statute, it did not expressly require the jury to find

  that Hoggard acted with intent as to the third and fourth elements

  of the crime — namely, that she intended to attempt to influence a

  public servant, and that she intended to do so by means of deceit.

  See Auman v. People, 109 P.3d 647, 663-64 (Colo. 2005); People v.

  Suazo, 87 P.3d 124, 128 (Colo. App. 2003) (finding an instruction


                                     22
  erroneous when the mens rea element of “knowingly” was included

  in only one of the two conduct elements). Nor did the instruction

  set off the mens rea requirement as a separate element. See People

  v. Bornman, 953 P.2d 952, 954 (Colo. App. 1997) (collecting cases

  in which the court found no reversible instructional error because

  the trial court had offset the mens rea requirement as a stand-alone

  element of jury instructions); see also COLJI-Crim. 8-3:09 (2016)

  (setting off the intent requirement as a separate element for the

  offense of attempt to influence a public servant).

¶ 43   The People contend that setting off the mens rea element

  separately is not necessary here because “attempt[ing] to influence”

  someone or acting “by means of deceit” are inherently intentional

  acts, even without explicitly attaching any mens rea element. This

  argument would have some purchase if this were a general intent

  offense requiring only knowing conduct. But because this is a

  specific intent offense requiring intentional conduct, we are not

  persuaded.

¶ 44   Attempt is not inherently intentional; instead, attempt usually

  shares the same mental state required for the predicate offense. Cf.

  § 18-2-101(1), C.R.S. 2016 (defining criminal attempt to include


                                    23
  “acting with the kind of culpability otherwise required for

  commission of an offense”). This is even true for an offense where

  an attempt alone is sufficient to complete the crime. For example,

  merely a “knowing” mens rea is required to convict a person of

  menacing, which includes the element of “attempt[ing] to place

  another person in fear of imminent serious bodily injury.”

  § 18-3-206(1), C.R.S. 2016; see also People v. Lopez, 2015 COA 45,

  ¶¶ 50-54 (discussing jury instruction defining “attempt” in the

  menacing context). The absence of any mens rea requirement for

  the “attempt[] to influence” element is slightly more problematic

  where, as here, the jury was not provided with any definition of

  “attempt.” In short, “attempt[] to influence” is not inherently

  intentional when disconnected from a mens rea element, making

  the lack of a mens rea requirement attached to the element

  erroneous.

¶ 45   The same holds true for “by means of deceit.” In Auman, the

  supreme court determined that failure to attach the “knowingly”

  mens rea to the “without authorization or by deception” element of

  theft was plain error. 109 P.3d at 665-72 (emphasis added). In so

  holding, the majority was unpersuaded by the partial dissent’s


                                    24
  contention that “the concept of acting ‘by deception’ carries with it

  an inherent requirement of knowledge.” Id. at 673 (Mullarkey, C.J.,

  concurring in part and dissenting in part). Here, the culpable

  mental state is “with intent,” not merely knowingly. Cf. Brown v.

  People, 239 P.3d 764, 767 (Colo. 2010) (“Under Colorado law, the

  requirement that a defendant act knowingly is also satisfied where a

  defendant satisfies the more-exacting ‘intentional’ standard.”)

  (emphasis added) (citation omitted); see also § 18-1-503(3) (setting

  forth the hierarchy of culpable mental states). Thus, we are not

  persuaded that acting “by means of deceit” is inherently intentional

  conduct, particularly when untethered to a mens rea element.

¶ 46   Accordingly, we conclude that the trial court’s instruction on

  attempt to influence a public servant was erroneous.

                       B.    The Error Was Obvious

¶ 47   “Generally, an error is obvious when the action challenged on

  appeal contravenes (1) a clear statutory command; (2) a well-settled

  legal principle; or (3) Colorado case law.” People v. Dinapoli, 2015

  COA 9, ¶ 30. We conclude that the instruction was contrary to

  legal principles that were settled at the time of trial.




                                     25
¶ 48   Various cases have held that the mens rea element applied to

  all substantive elements of the offense and that the presumptive

  way in which that is conveyed in a jury instruction is to set out the

  mens rea as a separate element. See, e.g., Auman, 109 P.3d at

  663-66; People v. Bossert, 722 P.2d 998, 1011 (Colo. 1986) (“[T]he

  mens rea term ‘knowingly,’ offset as it is from the conduct element,

  modifies all conduct described in [the conduct element].”); People v.

  Stephens, 837 P.2d 231, 234 (Colo. App. 1992) (finding no

  instructional error “because ‘knowingly’ precedes and is offset from

  the other elements and is followed by a comma”). In 2005, our

  supreme court in Auman held that the trial court committed plain

  error when it gave the jury a theft instruction that “failed to

  expressly modify the ‘without authorization’ element of the crime of

  theft with the culpable mental state of ‘knowingly.’” 109 P.3d at

  663-64.

¶ 49   In People v. Garcia, 2017 COA 1, a division of this court ruled

  that a failure to set off the “knowingly” element of a sexual assault

  offense did not satisfy the obviousness prong of plain error. Id. at

  ¶¶ 10-12. In that case, however, the instruction given by the trial

  court tracked the Colorado Model Jury Instruction available at the


                                     26
  time of trial for that offense. Id. at ¶ 10. The division in Garcia

  concluded that, because the instruction given at trial tracked the

  then-available model jury instruction, the error was not obvious.

  Id. at ¶ 11.

¶ 50   In contrast, there was no model jury instruction for this

  offense at the time of Hoggard’s trial. Thus, the trial court had

  neither the guidance nor the safe harbor available to the trial court

  in Garcia. But at the time of trial there was a well-established

  practice of formulating jury instructions so that the mens rea

  requirement was offset from the other elements of the crime. See,

  e.g., Auman, 109 P.3d at 663-64; Bornman, 953 P.2d at 954

  (collecting cases where appellate courts found no reversible

  instructional error because the trial court had offset the mens rea

  requirement as a stand-alone element of jury instructions). Doing

  so adequately informs the jury that the mens rea requirement

  applies to all elements of the offense. See Bornman, 953 P.2d at

  954. That practice was not followed here. Further, absent contrary

  guidance for this offense, the supreme court’s decision in Auman

  provides sufficient notice to render the error obvious. Accordingly,

  the trial court’s error was obvious at the time of trial.


                                     27
       C.    There is No Reasonable Possibility the Error Contributed to
                             Hoggard’s Conviction

¶ 51        In her opening brief, Hoggard argued that because the

  evidence was circumstantial, the investigation was cursory, and in

  a statement to law enforcement she denied knowing that the e-mail

  at issue was altered, there is a reasonable probability that relieving

  the People of the burden of proving that she acted intentionally with

  respect to acting by deceit and attempting to influence a public

  servant contributed to her conviction. The People did not respond

  to this argument in their answer brief; instead they relied

  exclusively on their invited error and waiver arguments and their

  contention that the instruction was not erroneous (or at least not

  obviously erroneous) to urge affirmance of the conviction. As

  discussed above, we are not persuaded by those arguments. But to

  reverse we must be convinced “not only that the instructions

  affected a substantial right, but also that the record reveals a

  reasonable possibility that the error contributed to the conviction.”

  People v. Chase, 2013 COA 27, ¶ 59 (citing Miller, 113 P.3d at 750);

  cf. People v. Casias, 2012 COA 117, ¶ 55 (“[A]n appellate court is

  authorized to disregard a harmless error even when a harmless



                                       28
  error argument has not been made in the briefs.” (citing United

  States v. Giovannetti, 928 F.2d 225, 226 (7th Cir. 1991))).

¶ 52   We assess prejudice by looking at the record as a whole,

  including all of the instructions and the jury’s other verdicts. See

  Chambers v. People, 682 P.2d 1173, 1178 (Colo. 1984). As

  discussed below, other portions of the jury’s verdicts that were

  untainted by the identified error make us certain that the

  instructional error did not contribute to the conviction. See People

  v. Linares-Guzman, 195 P.3d 1130, 1134-35 (Colo. App. 2008)

  (looking to jury’s verdict on a separate charge to conclude that any

  instructional error was not plain error because there was no

  reasonable possibility that such error contributed to defendant’s

  conviction).

¶ 53   First, the jury’s verdict on the second degree forgery charge

  fatally undermines Hoggard’s prejudice argument with respect to

  the lack of a mens rea requirement being attached to the “by means

  of deceit” element. In rendering its verdict on that charge, the jury

  explicitly found that Hoggard, “with intent to defraud, falsely made,

  completed, or uttered a written instrument,” that instrument being

  the same e-mail at issue in the attempt to influence a public


                                    29
  servant charge. (Emphasis added.) This verdict cures any

  prejudice from the instruction’s failure to attach “with intent” to “by

  means of deceit” in the attempt to influence a public servant

  instruction. Cf. People v. Freda, 817 P.2d 588, 591 (Colo. App.

  1991) (holding that “with intent to defraud” is “identical” to “by

  deception,” making it inconsistent for a jury to find the former but

  not the latter) (citation omitted).

¶ 54   Second, while “with intent” was not attached to the third

  element — “attempted to influence a public servant” — the jury, in

  rendering its verdict on attempt to influence a public servant,

  explicitly found that Hoggard acted “with intent to alter or affect the

  public servant’s decision, vote, opinion, or action concerning any

  matter,” in the fifth element of that charge.3 (Emphasis added.) It

  simply cannot be cogently argued that Hoggard intended to “alter or

  affect the public servant’s decision, vote, opinion, or action” but



  3 Although the issue was raised in the trial court, we express no
  opinion as to whether a CFI qualifies as a “public servant” under
  the statute, as this issue was not raised by either party on appeal.
  See People in Interest of N.G., 2012 COA 131, ¶ 70 n.14; Amos v.
  Aspen Alps 123, LLC, 298 P.3d 940, 959 n.16 (Colo. App. 2010), as
  modified on denial of reh’g (Feb. 18, 2010), aff’d in part, rev’d in
  part, 2012 CO 46.

                                        30
  that, in doing so, she did not also intend to attempt to influence

  that same public servant. Thus, we conclude that the inclusion of

  “with intent” in the fifth element cured any error in omitting that

  requirement in the third element.

¶ 55   We conclude that there is no reasonable probability that the

  trial court’s instructional error contributed to Hoggard’s conviction,

  and, therefore, it was not plain error. Accordingly, we affirm the

  conviction.

                             V.   Conclusion

¶ 56   We affirm the convictions for second degree forgery and

  attempt to influence a public servant.

       JUDGE FURMAN and JUDGE TERRY concur.




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