1                Opinions of the Colorado Supreme Court are available to the
2            public and can be accessed through the Judicial Branch’s homepage at
3              http://www.courts.state.co.us. Opinions are also posted on the
4              Colorado Bar Association’s homepage at http://www.cobar.org.
5
6                                                           ADVANCE SHEET HEADNOTE
7                                                                        April 30, 2018
8
9                                          2018 CO 32
0
1   No. 15SC326, People v. Rediger—Public Employee—Invited Error—Waiver—
2   Constructive Amendment—Plain Error Review
3
4         This case requires the supreme court to decide two questions: (1) whether the

5   owner-director of a nonprofit school regulated by various governmental entities is a

6   “public employee” within the meaning of section 18-9-110(1), C.R.S. (2017), and

7   (2) whether the respondent waived or invited error with respect to a constructive

8   amendment claim when his defense counsel stated that he was “satisfied” with the

9   proposed jury instructions, notwithstanding the fact that the elemental instruction on

0   the charge of interference with the staff, faculty, or students of an educational

1   institution tracked section 18-9-109(1)(b), C.R.S. (2017), rather than section 18-9-109(2),

2   C.R.S. (2017), which was the subsection charged in the information.

3         As to the first question, the court concludes that “public employee” means an

4   employee of a governmental entity and that therefore an employee of a nonprofit school

5   is not a public employee. Accordingly, the court agrees with the court of appeals

6   division’s decision that the respondent’s conviction for interference with a public

7   employee in a public building cannot stand.
1          As to the second question, the court concludes that the respondent neither

2   waived nor invited error with respect to his constructive amendment claim because the

3   record does not indicate that he or his counsel either intentionally relinquished a known

4   right or deliberately injected the erroneous jury instruction as a matter of trial strategy.

5   The court instead construes the respondent’s general acquiescence to the instructions as

6   a forfeiture and, reviewing for plain error, concludes that the constructive amendment

7   of the respondent’s charging document constituted plain error necessitating a new trial.

8          Accordingly, the supreme court affirms in part and reverses in part the court of

9   appeals division’s judgment.
                    The Supreme Court of the State of Colorado
                      2 East 14th Avenue • Denver, Colorado 80203


                                      2018 CO 32

                         Supreme Court Case No. 15SC326
                       Certiorari to the Colorado Court of Appeals
                        Court of Appeals Case No. 12CA1386
                            Petitioner/Cross-Respondent:
                         The People of the State of Colorado,
                                           v.
                            Respondent/Cross-Petitioner:
                                David Delbert Rediger.

                  Judgment Affirmed in Part and Reversed in Part
                                       en banc
                                     April 30, 2018


Attorneys for Petitioner/Cross-Respondent:
Cynthia H. Coffman, Attorney General
Brock J. Swanson, Assistant Attorney General
 Denver, Colorado

Attorneys for Respondent/Cross-Petitioner:
Douglas K. Wilson, Colorado State Public Defender
Shann Jeffrey, Deputy State Public Defender
 Denver, Colorado




JUSTICE GABRIEL delivered the Opinion of the Court.
¶1       We granted the People’s petition and David Delbert Rediger’s cross-petition for

certiorari from the court of appeals division’s decision affirming in part and reversing

in part Rediger’s convictions for (1) interference with a public employee in a public

building under section 18-9-110(1), C.R.S. (2017), and (2) interference with the staff,

faculty, or students of an educational institution under section 18-9-109(2), C.R.S. (2017).

People v. Rediger, 2015 COA 26, 411 P.3d 907.1

¶2       With regard to the first conviction, this case requires us to decide whether the

owner-director of a nonprofit school regulated by various governmental entities is a

“public employee” within the meaning of section 18-9-110(1).                  The division

unanimously concluded that “public employee” means an employee of a public entity

and that therefore an employee of a nonprofit school is not a public employee. Id. at

¶ 30, 411 P.3d at 912. Based on the plain meaning of the phrase “public employee,” we

agree.



1   Specifically, we granted certiorari to review the following issues:
      1. Whether people providing public services on behalf of a public entity are public
         employees under section 18-9-110, C.R.S. (2015).
      2. Whether the jury verdict for interference with the staff, faculty, or students of an
         educational institution under section 18-9-109, C.R.S. (2015), resulted from an
         impermissible constructive amendment constituting reversible error.
      3. Whether the court of appeals erred in applying the waiver doctrine as a complete
         bar to appellate review of the constructive amendment in this case, where
         defense counsel stated that he was generally “satisfied” with the jury
         instructions, but where there was no evidence that defense counsel was aware
         that the prosecutor erroneously tendered an uncharged offense in its proposed
         jury instructions.




                                               2
¶3    With regard to the second conviction, this case concerns the scope of two

procedural bars to appellate review: invited error and waiver.        As to this issue, a

majority of the division concluded that Rediger had waived his right to challenge the

constructive amendment of his criminal information when his defense counsel stated

that he was “satisfied” with the proposed jury instructions. Id. at ¶ 64, 411 P.3d at 918.

In our view, however, mere acquiescence to a jury instruction does not constitute a

waiver without some record evidence that the defendant intentionally relinquished a

known right. We likewise disagree with the People’s contention that Rediger’s alleged

acquiescence to the erroneous instructions tendered by the People constitutes invited

error. Rather, this purported acquiescence, at most, constitutes a forfeiture, and our

review is for plain error.     Applying that standard here, we conclude that the

discrepancy between the charging document and the jury instructions in this case

effected a constructive amendment of the charging document, and on the record

presented, this error was plain and requires reversal.

¶4    For these reasons, we affirm the portion of the division’s judgment dismissing

with prejudice Rediger’s conviction under section 18-9-110(1). We reverse, however,

the portion of the judgment upholding Rediger’s conviction and sentence under section

18-9-109(2), and we remand that count for a new trial.

                           I. Facts and Procedural History

¶5    David Rediger drove to the Rocky Mountain Youth Academy (the “Academy”)—

a nonprofit day treatment school that serves students who are not succeeding in public

school—to speak with Stacey Holland, the Academy’s owner and director. Holland and


                                            3
her husband had accused Rediger of stealing hay from their property, and Rediger

intended to speak with Holland about the theft charges against him.

¶6    Holland and Rediger gave conflicting accounts of the ensuing encounter.

Holland said that Rediger pulled into the Academy parking lot at about 10:30 in the

morning, demanded to talk right then in order to settle things, refused to leave despite

Holland’s repeated requests, and followed her into the Academy’s classroom, where he

had another confrontation with her, stating that if he did not immediately get the matter

settled, then he would tell the sheriff’s department that her husband had stolen a diesel

truck. Holland characterized Rediger’s behavior as “very aggressive” and said that she

“was very scared” and “felt really threatened” by Rediger’s conduct. Rediger conceded

that he did not initially leave when asked to do so, but he said that he never stepped

inside the school building and that he “was trying not to make a scene at the school.”

¶7    Based on this incident, the People charged Rediger with intimidating a witness

or victim under section 18-8-704, C.R.S. (2017), interference with a public employee in a

public building under section 18-9-110(1), and interference with staff, faculty, or

students of an educational institution under section 18-9-109(2). As to the last of these

charges, the criminal information alleged:

      On or about December 4, 2008, David Delbert Rediger, on the premises of
      an educational institution or at or in any building or other facility being
      used by an educational institution, unlawfully and willfully impeded the
      staff or faculty of the institution in the lawful performance of their duties
      or impeded a student of the institution in the lawful pursuit of his or her
      educational activities through the use of restraint, abduction, coercion, or
      intimidation or when force and violence were present or threatened; in
      violation of section C.R.S. 18-9-109(2).



                                             4
¶8     The case proceeded, and after a pretrial conference, the prosecutor tendered a set

of proposed jury instructions for defense counsel to review. Notably, these proposed

instructions included an elemental instruction tracking section 18-9-109(1)(b), rather

than section 18-9-109(2), which was the subsection charged in the information. That

instruction provided, in pertinent part:

       The elements of the crime of Interference with Staff, Faculty, or Students
       of an Educational Institution are:

       1.     That the defendant,

       2.     in the County of Conejos, State of Colorado, on or about
              December 4, 2008

       3.     was on or near the premises or facilities of any educational
              institution, and

       4.     knowingly,

       5.     denied to students, school officials, employees, or invitees,

       6.     lawful use of the property or facilities of the institution.

¶9     Defense counsel confirmed that he had received the proposed instructions and

read them when the prosecutor sent them, but defense counsel made no statements at

that time regarding the above-quoted proposed instruction.

¶10    The case then proceeded to trial, and after the close of the evidence but before the

court charged the jury, the court asked whether defense counsel was “satisfied with the

instructions.” Defense counsel replied, “Yes. Defense is satisfied.” At no time did

defense counsel object to the proposed instruction tracking section 18-9-109(1)(b), nor

does the record indicate that the court or the parties discussed that instruction.



                                              5
¶11    The case went to the jury, and after deliberation, the jury found Rediger not

guilty of intimidating a witness or victim under section 18-8-704 but guilty of

interference with a public employee in a public building under section 18-9-110(1) and

interference with staff, faculty, or students of an educational institution under section

18-9-109(2).

¶12    Rediger appealed, arguing, as pertinent here, that insufficient evidence

supported his conviction under section 18-9-110(1) because Holland was not a public

employee. He further argued that the discrepancy between the information and jury

instructions regarding the interference with staff, faculty, or students charge resulted in

a constructive amendment of his charging document.

¶13    In a partially split, published opinion, a division of the court of appeals affirmed

in part and reversed in part. With respect to Rediger’s sufficiency claim, the division

concluded that “public employee” refers to “a victim employed by a public entity” and

that the trial court had plainly erred in entering judgment on Rediger’s conviction

under section 18-9-110(1). Rediger, ¶¶ 30, 40–43, 411 P.3d at 912, 914. With respect to

Rediger’s constructive amendment claim, however, the division majority determined

that Rediger had waived that claim through “affirmative acquiescence” when he stated,

“Defense is satisfied” with the jury instructions. Id. at ¶¶ 53–61, 411 P.3d at 915–17.

¶14    Judge Richman specially concurred. Although he agreed with the result reached

by the majority, he rejected the majority’s premise that plain error review applies to

sufficiency challenges raised for the first time on appeal, and he disagreed with the

framework derived from People v. Lacallo, 2014 COA 78, 338 P.3d 442, and People v.


                                             6
Heywood, 2014 COA 99, 357 P.3d 201, on which the majority had relied. Id. at ¶ 66–67,

411 P.3d at 918 (Richman, J., specially concurring).

¶15    The People petitioned and Rediger cross-petitioned for certiorari. We granted

both petitions.

                                      II. Analysis

¶16    We first address the proper interpretation of “public employee” as that term is

used in section 18-9-110(1), and we conclude that Holland was not a public employee

under that statute. We then turn to Rediger’s constructive amendment claim. After

discussing the concepts of invited error, waiver, and forfeiture, we conclude that

Rediger neither invited this error nor waived his right to make the claim. Rather, at

most, he forfeited his constructive amendment claim by not making a contemporaneous

objection to the purportedly erroneous instruction. Accordingly, we review this claim

for plain error, and we ultimately conclude that a new trial is necessary.

                                 A. Public Employee

¶17    The People contend that the division erred in concluding that Holland was not a

“public employee” within the meaning of section 18-9-110(1) and in therefore reversing

Rediger’s conviction for interference with a public employee. We are not persuaded.

                         1. Definition of “Public Employee”

¶18    We review issues of statutory construction de novo. Doubleday v. People, 2016

CO 3, ¶ 19, 364 P.3d 193, 196. If the language of the statute is clear and unambiguous,

then we interpret the statute according to its plain meaning and look no further. See




                                             7
Marsh v. People, 2017 CO 10M, ¶ 20, 389 P.3d 100, 105; Springer v. City & Cty. of

Denver, 13 P.3d 794, 799 (Colo. 2000).

¶19    Here, although Title 18 does not define the term “public employee,” it does

define a similar term, “public servant,” and that definition is instructive.          “‘Public

servant’ means any officer or employee of government, whether elected or appointed,

and any person participating as an advisor, consultant, process server, or otherwise in

performing a governmental function . . . .”      § 18-1-901(3)(o), C.R.S. (2017) (emphases

added).     Accordingly,    in   the   context   of   public   servants,   “public”    means

“governmental,” and this court has interpreted the term “public” similarly in multiple

other contexts.   See, e.g., Univ. of Colo. v. Booth, 78 P.3d 1098, 1101 (Colo. 2003)

(recognizing the Colorado Governmental Immunity Act’s definition of “public entity”

as the “state . . . and every other kind of district, agency, instrumentality, or political

subdivision thereof organized pursuant to law”) (quoting section 24-10-103(5), C.R.S.

(2017)); Denver Area Labor Fed’n v. Buckley, 924 P.2d 524, 527–29 (Colo. 1996)

(concluding that the term “public moneys” includes the moneys of a fund administered

by a political subdivision of the state); Colo. Ass’n of Pub. Emps. v. Bd. of Regents of

Univ. of Colo., 804 P.2d 138, 143 (Colo. 1990) (explaining that public corporations, in

contrast with private ones, are “created as subdivisions of the state as an expedient

device to carry out the functions of government”); Currigan v. Flor, 299 P.2d 1098, 1099




                                             8
(Colo. 1956) (stating that it is “plain” that, in his capacity as a city councilman, a plaintiff

was “holding public office”).2

¶20    “Employee,” in turn, is ordinarily defined as “[s]omeone who works in the

service of another person (the employer) under an express or implied contract of hire,

under which the employer has the right to control the details of work performance.”

Employee, Black’s Law Dictionary (10th ed. 2014); see also Norton v. Gilman, 949 P.2d

565, 567 (Colo. 1997) (“Under the common law, the most important factor in

determining whether a worker qualifies as an employee is the alleged employer’s right

to control the details of performance.”).

¶21    Applying these settled definitions, we conclude that the term “public employee”

is unambiguous and means a person who works in the service of a governmental entity

under an express or implied contract of hire, under which the governmental entity has

the right to control the details of the person’s work performance. See People v. Moore,

2013 COA 86, ¶ 13, 338 P.3d 348, 350 (“Accordingly, we interpret the phrase ‘public

official or employee’ in section 18-9-110(2) to apply only to a victim who is either an

official or an employee of a public entity.”).

¶22    We are not persuaded otherwise by the People’s assertion that the General

Assembly intended the phrase “public employee” to capture any employee who serves

a governmental function, whether or not a governmental entity actually employs that

person. Had the legislature intended such a broad application of section 18-9-110(1),

2 The People themselves rely on this meaning of the word “public,” defining a
“governmental function” as a “public service [performed] on behalf of a public entity.”
People’s Opening Br. at 20.


                                                 9
the statutory term defined above—“public servant”—would serve this purpose, and the

term “public employee” would be superfluous.       Specifically, at its broadest, “public

servant” encompasses “any person participating . . . in performing a governmental

function”—precisely the meaning that the People seek to impart to “public employee.”

§ 18-1-901(3)(o). Our precedents clearly instruct, however, that “the use of different

terms signals an intent on the part of the General Assembly to afford those terms

different meanings.” See, e.g., Robinson v. Colo. State Lottery Div., 179 P.3d 998, 1010

(Colo. 2008). And we may not construe a statute so as to render any statutory words or

phrases superfluous. People v. Null, 233 P.3d 670, 679 (Colo. 2010). Accordingly, in our

view, “public employee” must mean something different than “public servant.”

                           2. Sufficiency of the Evidence

¶23   Having interpreted the term “public employee,” we now turn to the question of

whether sufficient evidence supports the jury’s finding that Holland was a public

employee within the meaning of section 18-9-110(1).

¶24   As an initial matter, we note that the People contend that Rediger’s sufficiency

claim should be reviewed only for plain error. This issue has divided divisions of our

court of appeals, both as to whether a defendant must make a motion for a judgment of

acquittal to preserve a sufficiency claim and whether unpreserved sufficiency claims

should be reviewed de novo or only for plain error.        Compare Rediger, ¶¶ 9–14,

411 P.3d at 910–11, and Lacallo, ¶¶ 4–24, 338 P.3d at 444–49, with People v. McCoy,

2015 COA 76M, ¶¶ 6–36, ___ P.3d ___, and People v. Randell, 2012 COA 108, ¶ 30,




                                          10
297 P.3d 989, 997–98. Indeed, we have granted certiorari to resolve this division split.3

We, however, need not wade into this dispute here because reviewing either de novo or

under the form of plain-error review on which the division relied, see Rediger,

¶¶ 12–13, 411 P.3d at 910, leads to the same result, namely, that Rediger’s conviction

under section 18-9-110(1) must be reversed.

¶25    Under the division’s view, when analyzing the evidence requires the preliminary

interpretation of a statute, the court must first decide whether the error was obvious.

Id. at ¶ 12, 411 P.3d at 910. The division indicated that an error of this nature would not

be obvious if determining the meaning of the operative statutory terms under

then-existing Colorado authority would be difficult. Id. Conversely, the error would be

obvious if the statutory language was unambiguous, even if the operative statutory

terms had not yet been interpreted and no previous case law would have alerted the

trial court to the error. Id. at ¶ 13, 411 P.3d at 910. Applying this analysis to the case

before it, the division concluded that the term “public employee” was unambiguous

and that Holland was not a public employee.          Id. at ¶¶ 16–19, 28–37, 411 P.3d at

911–913. Accordingly, Rediger’s conviction under section 18-9-110(1) could not stand.

Id. at ¶ 27, 411 P.3d at 912.

¶26    Here, whether we were to apply the division’s analysis or to review this issue de

novo, our analysis is functionally the same and produces the same result. As noted

above, we believe that the term “public employee” is unambiguous and means a person

3  See People in Interest of T.B., 2016 COA 151M, ___ P.3d ___, cert. granted,
No. 17SC66, 2017 WL 3593888 (Colo. Aug. 21, 2017); McCoy, 2015 COA 76M, cert.
granted, No. 15SC1095, 2016 WL 5723893 (Colo. Oct. 3, 2016).


                                            11
who works in the service of a governmental entity under an express or implied contract

of hire, under which the governmental entity has the right to control the details of the

person’s work performance. In this case, Holland testified, without contradiction, that

she was employed by the Academy, the nonprofit school that she also owns, and not by

a governmental entity. Moreover, no evidence showed that any governmental entity

had the right to control the details of Holland’s work performance. Accordingly, like

the division, we conclude that Holland was not a public employee within the meaning

of section 18-9-110(1) and that, therefore, sufficient evidence did not support Rediger’s

conviction on that count.

¶27   Notwithstanding the foregoing, the People urge us to conclude that Holland was

a public employee for purposes of the statute because she was employed not only by

the Academy but also, effectively, by the various governmental entities that accredit,

license, monitor, audit, and inspect the Academy, including the Colorado Department

of Education, the Colorado Department of Human Services, and the Colorado

Department of Health. For three reasons, we are unpersuaded.

¶28   First, regulatory activities like those on which the People rely do not suffice to

create an employment relationship at common law, and the People cite no applicable

law to the contrary.    In an ordinary employment relationship, an employer must

possess the right to control the details of its employee’s performance. Norton, 949 P.2d

at 567. Here, although governmental entities may have had the authority to “check” the

Academy’s curriculum, to perform unannounced audits, and to send students for

placement in the school (subject to the Academy’s right to refuse those students), they


                                           12
were not involved in the Academy’s daily operations and did not control the details of

Holland’s or any other Academy employee’s performance. Id. at 568 (concluding that

the director of a county department of social services was not a state employee because

the director served under the supervision of the county board and although the board

“operate[d] within the regulatory framework established by the State, the State [was]

not involved in [its] daily operations”); see also Logue v. United States, 412 U.S. 521, 530

(1973) (concluding that federal regulations requiring county jail employees to abide by

specific standards of treatment for federal prisoners did not render the county

employees employees of a federal agency; although the federal government retained the

right to inspect the county jail at reasonable hours, it did not have the authority to

supervise the conduct of the jail’s employees).

¶29     Second, the People point to no one governmental entity that they deem to be

Holland’s employer.     Instead, they rely on the piecemeal involvement of various

governmental entities to cast Holland as a generalized “public employee.” The People

cite no applicable law supporting such a notion of an employee, and we have seen

none.

¶30     Finally, in our view, the People’s definition is overbroad because it would deem

virtually all employees of regulated employers to be “public employees,” contrary both

to our precedents and to the common understanding of the distinction between public,

governmental entities and private, regulated entities. See Colo. Ass’n of Pub. Emps.,

804 P.2d at 143 (“Private nonprofit corporations are corporations formed by private

individuals for a public purpose . . . . In contrast, public corporations are created as


                                            13
subdivisions of the state as an expedient device to carry out the functions of

government.”); cf. Va. Office for Prot. & Advocacy v. Stewart, 563 U.S. 247, 273 (2011)

(Roberts, C.J., dissenting) (“[P]rivate entities are different from public ones: They are

private.”); Jackson v. Metro. Edison Co., 419 U.S. 345, 350 (1974) (“The mere fact that a

business is subject to state regulation does not by itself convert its action into that of the

State . . . . Nor does the fact that the regulation is extensive and detailed.”) (citation

omitted).

¶31    For these reasons, we agree with the division that sufficient evidence did not

support a finding that Holland was a “public employee.”               Accordingly, like the

division, we conclude that Rediger’s conviction under section 18-9-110(1) cannot stand.

                             B. Constructive Amendment

¶32    Rediger next asserts that his conviction for interference with the staff, faculty, or

students of an educational institution under section 18-9-109(2) resulted from an

impermissible constructive amendment of the charging document in this case and that

the division erred in deeming his claim to have been waived through affirmative

acquiescence. The People respond that Rediger defaulted this claim under both the

doctrine of waiver and the doctrine of invited error. Alternatively, the People argue

that the trial court did not plainly err in permitting the amendment.

¶33    We first consider the doctrines of invited error and waiver, and we conclude that

neither doctrine applies.     Next, we conclude that, at most, Rediger forfeited his

constructive amendment claim.         As a result, we review for plain error, and we




                                             14
ultimately conclude that the trial court plainly erred in permitting the constructive

amendment. We thus reverse and remand for a new trial on this count.

                                     1. Invited Error

¶34    The doctrine of invited error prevents a party from complaining on appeal of an

error that he or she has invited or injected into the case; the party must abide the

consequences of his or her acts. People v. Zapata, 779 P.2d 1307, 1309 (Colo. 1989).

Invited error is a narrow doctrine and applies to errors in trial strategy but not to errors

that result from oversight. People v. Wittrein, 221 P.3d 1076, 1082 (Colo. 2009). We

have thus concluded that a party invites an error in a jury instruction when that party

drafted or tendered the erroneous instruction. See, e.g., Zapata, 779 P.2d at 1308–10; see

also Gray v. People, 342 P.2d 627, 630 (Colo. 1959) (“[W]e cannot consider the trial court

to be in error for giving an instruction demanded by the defense.”).

¶35    Here, Rediger did not draft or tender the instruction at issue, nor did he request

that the instruction be given or even discuss it on the record. Indeed, nothing in the

record suggests that either he, the prosecution, or the trial court even noticed that the

instruction tracked the wrong subsection of the statute. Accordingly, we agree with the

division below that Rediger cannot fairly be said to have “injected” the error into this

case. See Rediger, ¶ 60, 411 P.3d at 916. Therefore, he did not invite it.

¶36    We are not persuaded otherwise by the People’s reliance on Horton v. Suthers,

43 P.3d 611, 619 (Colo. 2002), in which this court suggested that invited error may apply

when “one party expressly acquiesces to conduct by the court or the opposing party.”

In Horton, the director of the Department of Corrections expressly agreed that the


                                             15
district court had jurisdiction to consider a petition for habeas corpus and further stated

that he did not oppose the relief requested, effectively conceding that that relief should

be granted. Id. at 614, 618. Nevertheless, on appeal, the director reversed course and

opposed the requested relief, fully admitting that his new position contradicted his

earlier concession. Id. at 618.

¶37    Rediger’s general expression of “satisfaction” with the jury instructions here

does not resemble the specific admissions and subsequent contradictions of the director

in Horton. To the contrary, as noted above, the record before us bears no indication that

Rediger was aware of the discrepancy between the jury instructions and his criminal

information, let alone that he affirmatively injected that discrepancy. Rather, unlike in

Horton, the record here suggests that the discrepancy between Rediger’s criminal

information and the jury instructions likely resulted from oversight, not intent or trial

strategy.

¶38    Accordingly, we conclude that the doctrine of invited error does not bar

appellate review of Rediger’s constructive amendment claim.

                                  2. Waiver and Forfeiture

¶39    Waiver, in contrast to invited error, is “the intentional relinquishment of a

known right or privilege.” Dep’t of Health v. Donahue, 690 P.2d 243, 247 (Colo. 1984)

(emphases added).      We “do not presume acquiescence in the loss of fundamental

constitutional rights, and therefore indulge every reasonable presumption against

waiver.” People v. Curtis, 681 P.2d 504, 514 (Colo. 1984).




                                             16
¶40    The requirement of an intentional relinquishment of a known right or privilege

also distinguishes a waiver from a forfeiture, which is “the failure to make the timely

assertion of a right.” United States v. Olano, 507 U.S. 725, 733 (1993); see also United

States v. Carrasco-Salazar, 494 F.3d 1270, 1272 (10th Cir. 2007) (“[W]aiver is

accomplished by intent, [but] forfeiture comes about through neglect.”) (quoting United

States v. Staples, 202 F.3d 992, 995 (7th Cir. 2000)). This distinction is important because

a waiver extinguishes error, and therefore appellate review, but a forfeiture does not.

Olano, 507 U.S. at 733. Accordingly, this court may review a forfeited error under the

plain error standard. See People v. Miller, 113 P.3d 743, 751 (Colo. 2005) (noting that the

court will review for plain error instructional omissions to which the defendant did not

object); accord Crim. P. 52(b) (“Plain errors or defects affecting substantial rights may be

noticed although they were not brought to the attention of the court.”).

¶41    Here, the People contend—and the division below concluded—that Rediger

waived his objection to the constructive amendment and therefore extinguished any

error when his counsel stated that counsel was “satisfied” with the jury instructions.

We, however, are not convinced that this statement, standing alone, evinced Rediger’s

intentional relinquishment of a known right or privilege.

¶42    The record before us reveals no evidence, either express or implied, that Rediger

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.                See

Donahue, 690 P.2d at 247 (acknowledging that a waiver may be express or implied but

perceiving no waiver because Donahue’s failure to raise an issue was not “the type of


                                            17
unequivocal act indicative of a waiver” and did not “clearly manifest[] any intent by

Donahue to relinquish her claim”) (emphases added). For example, the record contains

no evidence that Rediger considered objecting to the erroneous instruction but then,

“for some tactical or other reason, rejected the idea.”     See United States v. Perez,

116 F.3d 840, 845–46 (9th Cir. 1997) (perceiving no waiver when the record revealed

“that neither defendants, the government, nor the court was aware” that a particular

element should have been submitted to the jury).

¶43    Nor, as discussed above, do we perceive any evidence that Rediger knew of the

discrepancy between the People’s tendered jury instructions and the charging

document.     See Gov’t of Virgin Islands v. Rosa, 399 F.3d 283, 293 (3d Cir. 2005)

(perceiving no waiver but finding only a forfeiture when the record did not indicate

that counsel knew of and considered the controlling law, despite his repeated

acquiescence to the jury instructions). In fact, the record reveals no discussion of this

particular instruction at all.

¶44    In these circumstances, we conclude that neglect, not intent, explains Rediger’s

lack of an objection to the constructive amendment.         Accordingly, in our view,

Rediger’s acquiescence amounts to a forfeiture, not a waiver.

¶45    We are not persuaded otherwise by the People’s assertions that Rediger’s waiver

is established by the facts that his counsel had an opportunity to review the proposed

instructions before trial and confirmed that he had done so. Although these facts

confirm that Rediger’s counsel read the proposed instructions, they do not show

Rediger’s or counsel’s knowledge of the discrepancy between the jury instructions and


                                           18
charging document or that either Rediger or his counsel intentionally relinquished the

right to object to a constructive amendment. See United States v. Zubia-Torres, 550 F.3d

1202, 1207 (10th Cir. 2008) (“The record is simply devoid of any evidence that defense

counsel knew of the argument or considered making it. We will not presume a waiver

or infer one from a record as sparse as this . . . . [W]e . . . hold, consistent with our

precedents, that there must be some evidence that the waiver is ‘knowing and

voluntary,’ beyond counsel’s rote statement that she is not objecting . . . .”).

¶46    In arguing for a waiver, the People appear to be requesting that we presume

from Rediger’s acquiescence an intentional relinquishment of a known right. As noted

above, however, it has long been settled that we must indulge “every reasonable

presumption against waiver.” Curtis, 681 P.2d at 514 (emphasis added).

¶47    Accordingly, we conclude that Rediger forfeited his constructive amendment

argument, and we therefore review that argument for plain error.4

                                      3. Plain Error

¶48    An error is plain if it is obvious and substantial and so undermines the

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

judgment of conviction.      People v. Weinreich, 119 P.3d 1073, 1078 (Colo. 2005).      A

constructive amendment, in turn, occurs when a jury instruction “changes an essential



4 Because we conclude that the error was plain, we need not consider whether a
constructive amendment amounts to structural error. See Hagos v. People, 2012 CO 63,
¶ 10, 288 P.3d 116, 119 (“[C]ertain errors are structural errors, which require automatic
reversal without individualized analysis of how the error impairs the reliability of the
judgment of conviction.”).


                                             19
element of the charged offense and thereby alters the substance of the charging

instrument.” People v. Rodriguez, 914 P.2d 230, 257 (Colo. 1996).

¶49    Here, pursuant to the criminal information and the jury’s verdict, Rediger was

charged with and convicted of violating section 18-9-109(2). That statute required the

People to prove that Rediger “willfully impede[d] the staff or faculty of [an educational

institution] in the lawful performance of their duties or willfully impede[d] a student of

the institution in the lawful pursuit of his educational activities through the use of

restraint, abduction, coercion, or intimidation or when force and violence [were] present

or threatened.” § 18-9-109(2).

¶50    The elemental jury instruction, in contrast, asked the jury to consider whether

Rediger had violated section 18-9-109(1)(b). As pertinent here, that section required the

People to prove only that Rediger “willfully den[ied] to students, school officials,

employees, and invitees . . . [l]awful use of the property or facilities of [an educational]

institution.” § 18-9-109(1)(b).

¶51    The difference between these charges is manifest. Most notably for purposes

here, the charged offense, section 18-9-109(2), required a showing of “restraint,

abduction, coercion, or intimidation,” or force, violence, or the threat thereof.

§ 18-9-109(2)   The offense presented to the jury, however, did not require these

elements. Accordingly, the information did not place Rediger on notice that he would

have to defend against the different charge submitted to the jury.          See Weinreich,

119 P.3d at 1079 (reversing the defendant’s conviction when “the information did not

place Weinreich on notice that he would have to defend against the charge actually


                                            20
submitted to the jury”). Moreover, the offense presented to the jury allowed it to

convict Rediger of a crime not charged in the information, and one for which the

People’s burden of proof was materially lessened. See Cervantes v. People, 715 P.2d

783, 786 (Colo. 1986) (“[A]n information that fails to charge an essential element of an

offense is defective.”).   In our view, this distinction amounted to a constructive

amendment of the criminal information. See Stirone v. United States, 361 U.S. 212, 219

(1960) (“[H]e was convicted on a charge the grand jury never made against him. This

was fatal error.”). In addition, in light of this error, we perceive a substantial likelihood

that the jury found Rediger guilty of a violation of section 18-9-109(2), the charge

reflected on the verdict form, without finding that Rediger had, “through the use of

restraint, abduction, coercion, or intimidation or when force and violence [were] present

or threatened,” willfully impeded a staff member, teacher, or student in the lawful

performance of his or her duties or pursuit of his or her educational activities.

§ 18-9-109(2).

¶52    Because we believe that the error here was obvious and substantial and so

undermined the fundamental fairness of Rediger’s trial as to cast serious doubt on the

reliability of the judgment of conviction, see Weinreich, 119 P.3d at 1078, we conclude

that the trial court plainly erred in allowing Rediger’s conviction to stand in spite of the

constructive amendment.

¶53    In so concluding, we are not persuaded by the People’s contention that Rediger’s

charging document was “effectively amended” when the prosecution tendered the

erroneous instructions. No law from this court, nor any of the cases cited by the People,


                                             21
supports the proposition that an information may be amended, absent any motion to

amend or stipulation or agreement by the defendant, by way of proposed jury

instructions.

                                      C. Remedy

¶54    Having thus found plain error, the question remains as to the proper remedy.

Rediger asserts that the evidence did not support a finding of guilt under section

18-9-109(2) as originally charged, and therefore we should vacate the conviction and

dismiss the charge. See People in Interest of H.W., 226 P.3d 1134, 1138–40 (Colo. App.

2009). The People, in contrast, contend that if we reach the merits of the issue and

perceive a constructive amendment, then we should remand for a new trial.              See

People v. Lopez, 140 P.3d 106, 109 (Colo. App. 2005). Because we cannot say, as a

matter of law, that the evidence did not support a conviction under section 18-9-109(2),

we reverse and remand for a new trial.

¶55    When confronted with a claim of insufficient evidence, we review the record de

novo to determine whether the evidence, viewed in the light most favorable to the

prosecution, was both substantial and sufficient to support the conclusion by a

reasonable mind that the defendant was guilty beyond a reasonable doubt. People v.

Perez, 2016 CO 12, ¶ 8, 367 P.3d 695, 697.

¶56    As pertinent here, Rediger’s conviction under section 18-9-109(2) required the

People to prove that:

       on the premises of any educational institution or at or in any building or
       other facility being used by any educational institution, [Rediger] willfully
       impede[d] the staff or faculty of such institution in the lawful performance


                                             22
      of their duties or willfully impede[d] a student of the institution in the
      lawful pursuit of his educational activities through the use of restraint,
      abduction, coercion, or intimidation or when force and violence [were]
      present or threatened.

§ 18-9-109(2).

¶57   Here, the evidence presented, when viewed in the light most favorable to the

People, showed that Rediger drove to the Academy during the school day and spoke to

Holland concerning the hay-theft charges that she and her husband had pursued

against Rediger. Holland repeatedly asked Rediger to leave, but he refused to do so.

Instead, at least according to Holland, Rediger then followed her into the classroom,

acted “very aggressive,” and stated that if he did not immediately get the matter settled,

then he would tell the sheriff’s department that her husband had stolen a diesel truck.

Rediger’s conduct scared Holland, and she stated that she felt “really threatened” by it.

Finally, Rediger relented, left the classroom, and drove away.

¶58   Viewing these facts in the light most favorable to the prosecution, we cannot

conclude that the evidence was insufficient to allow a reasonable juror to find that

Rediger, on the premises of an educational institution, willfully impeded Holland in the

lawful performance of her duty as a teacher through the use of intimidation.

Accordingly, we reverse Rediger’s conviction on this count and remand for a new trial.

We express no opinion as to whether the prosecution must proceed on the count

originally charged, or whether it may seek to amend the information at this point.




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                                   III. Conclusion

¶59   For these reasons, we conclude that Holland was not a public employee within

the meaning of section 18-9-110(1) and that therefore, the evidence did not support

Rediger’s conviction for interference with a public employee in a public building. We

further conclude that Rediger neither waived nor invited error with respect to his

constructive amendment claim and that the trial court plainly erred in allowing Rediger

to be convicted on the charge of interfering with the staff, faculty, or students of an

educational institution, as constructively amended, thereby necessitating a new trial.

¶60   Accordingly, we affirm in part and reverse in part the judgment of the division

below, and we remand this case for further proceedings consistent with this opinion.




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