COLORADO COURT OF APPEALS                                      2016COA161


Court of Appeals No. 15CA0652
Weld County District Court No. 13CR1668
Honorable Shannon D. Lyons, Judge


The People of the State of Colorado,

Plaintiff-Appellee,

v.

Billy Jack Sena,

Defendant-Appellant.


                            JUDGMENT AFFIRMED

                                  Division VI
                         Opinion by JUDGE RICHMAN
                         Bernard and Fox, JJ., concur

                         Announced November 3, 2016


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

Douglas K. Wilson, Colorado State Public Defender, Katherine Brien, Deputy
State Public Defender, Denver, Colorado, for Defendant-Appellant
¶1    Defendant, Billy Jack Sena, appeals the judgment of

 conviction entered upon a jury verdict finding him guilty of one

 count of attempt to influence a public servant. We affirm the

 conviction.

                             I. Background

¶2    According to the prosecution’s evidence, defendant was a

 passenger in his cousin’s vehicle when Greeley Police Officer Bridge

 stopped the vehicle for a traffic infraction. When asked to identify

 himself by Officer Pfeiler, who had arrived to assist with the stop,

 defendant provided the name of a relative (Robert Velasquez) and a

 birth date that was not defendant’s. Finding no outstanding

 warrants for the driver or for Robert Velasquez, the police allowed

 defendant and his cousin to proceed with a warning.

¶3    Officer Pfeiler decided to further investigate the passenger

 because dispatch had reported no record of a person with the given

 name and date of birth. As he investigated, Officer Pfeiler viewed an

 enlarged picture of defendant, who shares a last name with the

 driver. Not long after defendant departed in the vehicle, Officer

 Pfeiler showed defendant’s picture to Officer Bridge, and the officers

 agreed with certainty that the passenger of the car had been


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 defendant, not “Robert Velasquez.” Officer Pfeiler then located an

 active arrest warrant for defendant issued from an adjacent county.

¶4    The People charged defendant with one count of attempt to

 influence a public servant, defined in section 18-8-306, C.R.S.

 2016. Section 18-8-306 provides, in pertinent part, that “[a]ny

 person who attempts to influence any public servant by means of

 deceit . . . with the intent thereby to alter or affect the public

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

 which is to be considered or performed by him . . . commits a class

 4 felony.” (Emphasis added.) A jury found defendant guilty of the

 charge, and the district court sentenced him to 6 months of

 probation with 90 days in county jail and 100 hours of community

 service.

                              II. Discussion

¶5    Defendant contends that (1) the prosecution’s evidence was

 insufficient as a matter of law to support his conviction for attempt

 to influence a public servant, and (2) the district court erred by

 taking judicial notice of his outstanding warrant at trial and

 improperly instructing the jury on judicial notice. We are not

 persuaded.


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                           A. Insufficient Evidence

¶6    Defendant asserts that there was insufficient evidence to show

 that (1) Officer Pfeiler is a “public servant,” as contemplated in

 section 18-8-306; and (2) he intended to alter Officer Pfeiler’s

 actions, because there was no evidence that he knew there was a

 warrant for his arrest.

                           1. Standard of Review

¶7    Evidence is sufficient to support a conviction if the direct and

 circumstantial evidence, viewed as a whole and in the light most

 favorable to the prosecution, could support a rational trier of fact’s

 conclusion that the defendant is guilty of the offense beyond a

 reasonable doubt. Clark v. People, 232 P.3d 1287, 1291-92 (Colo.

 2010). We give the prosecution the benefit of every reasonable

 inference which may fairly be drawn from the evidence, and we do

 not consider vague, speculative, or imaginary doubt to be

 reasonable doubt. Id. at 1292. We generally review the record de

 novo to make this determination. Id. at 1291.

¶8    Because defendant concedes that he did not raise the first

 argument at trial, some divisions of this court would reverse only

 for plain error. See People v. Lacallo, 2014 COA 78, ¶¶ 12, 30-31;


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  see also People v. McCoy, 2015 COA 76M, ¶ 70 (Webb, J., specially

  concurring). But we need not resolve that issue here, because we

  conclude that the district court did not err.

                              2. Public Servant

¶9        On this issue, defendant makes two arguments: (1) a police

  officer is not a “public servant” as considered in section 18-8-306;

  and (2) the prosecution did not prove that Officer Pfeiler is a public

  servant.

                              a. Applicable Law

¶ 10      We regard the argument that a police officer is not a “public

  servant” as contemplated in section 18-8-306 as a question of law,

  which we also review de novo. See Doubleday v. People, 2016 CO 3,

  ¶ 19. In construing statutory terms, our primary purpose “is to

  ascertain and give effect to the intent of the General Assembly.” Id.

  We do so by looking first to the plain language, giving words and

  phrases their ordinary meanings. Id. We consider each statutory

  term in the context of the statute, and construe it according to the

  rules of grammar and common usage. People v. Diaz, 2015 CO 28,

  ¶ 12.




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¶ 11   A “public servant,” as envisioned in section 18-8-306, is

  defined as follows: “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, but the term does not include witnesses.”

  § 18-1-901(3)(o), C.R.S. 2016.1

                                b. Analysis

¶ 12   The plain language of the statute reveals that a police officer,

  as an employee of the government, is a public servant. The

  definition provided is expansive; it encompasses any employee of

  the government and even includes non-employees performing

  government functions. And the definition incorporates language to

  exclude witnesses, but no other specified class. Accordingly, we

  cannot conclude that the General Assembly intended to silently

  exclude police officers from the definition of “public servants.”


  1 In order to arrive at the definition in section 18-1-901(3)(o), C.R.S.
  2016, we start with section 18-8-301(4), C.R.S. 2016, which
  provides that “‘[p]ublic servant’, as used in sections 18-8-302 to
  18-8-308, includes persons who presently occupy the position of a
  public servant as defined in section 18-8-101(3).” Section 18-8-
  101(3), C.R.S. 2016, then provides that “‘[p]ublic servant has the
  same meaning as described in section 18-1-901(3)(o),” where we
  finally find the definition set forth above.

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¶ 13   We are not persuaded otherwise by defendant’s elaborate

  arguments that (1) the phrase “whether elected or appointed”

  should be construed as words of limitation which would exclude

  police officers; or (2) because in other statutes police officers are

  referred to as “peace officers,” they cannot also be public servants.

  Even assuming that the General Assembly intended the phrase

  “whether elected or appointed” to be words of limitation, hiring for

  any non-elected public position may be considered an appointment.

  See Black’s Law Dictionary 116 (9th ed. 2009) (defining

  appointment as “[t]he designation of a person, such as a nonelected

  public official, for a job or duty . . .”). And section 18-8-113(1),

  C.R.S. 2016, a statute defendant cites, includes the language “a

  public servant other than a peace officer,” indicating that the

  General Assembly generally considers police officers to be in the

  category of public servants, but excludes them in that instance.

¶ 14   Moreover, divisions of this court have accepted without

  question that police officers are public servants under the relevant

  statute. See, e.g., People v. Van De Weghe, 2012 COA 204 (where

  the defendant was convicted of attempt to influence a public




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  servant when he provided false information to a police officer during

  a traffic stop).

¶ 15    We conclude that police officers are public servants as

  contemplated in section 18-8-306, and thus discern no error on

  this issue. And a rational trier of fact could conclude that Officer

  Pfeiler is a public servant from his trial testimony that he is a police

  officer with the Greeley Police Department. Accordingly, we

  conclude that the prosecution presented sufficient evidence to prove

  that Officer Pfeiler is a public servant.

                                  3. Intent

¶ 16    Intent can rarely be proven other than through circumstantial

  or indirect evidence. People v. Serra, 2015 COA 130, ¶ 83; see

  People v. Dist. Court, 926 P.2d 567, 571 (Colo. 1996). For the

  People to prove that defendant intended to alter Officer Pfeiler’s

  actions, the prosecution must only provide sufficient evidence for a

  rational trier of fact to conclude that defendant anticipated a

  different result if he had given his true identity. We note that

  whether the public servant was actually influenced by the

  defendant’s attempts is not an element of the crime. People v.

  Schupper, 140 P.3d 293, 298 (Colo. App. 2006). We conclude that


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  the prosecution presented such evidence here through the following

  testimony by the officers at trial:

           defendant provided a false name to an officer;

           the false name belonged to defendant’s relative;

           the false name provided “no record” on the officers’

             computer;

           the officers let the driver and defendant drive away;

           the officers’ patrol car computer subsequently revealed

             an outstanding warrant for defendant; and

           the officers agreed with absolute certainty that defendant

             had been the passenger.

¶ 17   Viewing this evidence as a whole and in the light most

  favorable to the prosecution, we conclude that a rational juror could

  find that the prosecution presented sufficient indirect or

  circumstantial evidence to support a conclusion beyond a

  reasonable doubt that the defendant intended to deceive Officer

  Pfeiler and anticipated a different result — that he would be

  arrested on an outstanding warrant — had he given his true

  identity. Hence, a rational juror could find that defendant intended

  to alter Officer Pfeiler’s actions by means of deceit.

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                            B. Judicial Notice

¶ 18   Defendant next contends that the district court erred by

  taking judicial notice of the existence of an arrest warrant for

  defendant at the time he provided false information to Officer

  Pfeiler. We are not persuaded.

¶ 19   At the prosecution’s request, the district court took judicial

  notice of the existence of an active Larimer County warrant on the

  date defendant presented false information to Officer Pfeiler, as

  verified by a routinely used statewide court database. Defendant

  objected.

¶ 20   On appeal, defendant argues that taking judicial notice was

  error because the warrant was not an adjudicative fact within the

  scope of CRE 201. Specifically, we understand him to argue that

  taking notice of the warrant was not permitted under CRE 201

  because the warrant arose in another jurisdiction, the accuracy of

  the database was subject to reasonable dispute, and judicial notice

  of the warrant invaded the province of the jury.2


  2 Defendant further contends that the district court plainly erred by
  giving the model jury instruction for judicial notice. We do not
  review this contention because any error was invited by defendant
  when he requested and approved the instruction. See People v.

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¶ 21   We disagree.

                1. Standard of Review and Applicable Law

¶ 22   We review a district court’s decision to take judicial notice for

  an abuse of discretion. Quintana v. City of Westminster, 56 P.3d

  1193, 1199 (Colo. App. 2002). “A court abuses its discretion when

  its decision is manifestly arbitrary, unreasonable, or unfair, or

  based on an erroneous understanding or application of the law.”

  People v. Orozco, 210 P.3d 472, 475 (Colo. App. 2009).

¶ 23   Generally, a district court has discretion to take judicial notice

  of an adjudicative fact. Id. CRE 201(b) provides that the kind of

  fact proper for judicial notice “must be one not subject to

  reasonable dispute in that it is either (1) generally known within the

  territorial jurisdiction of the trial court or (2) capable of accurate

  and ready determination by resort to sources whose accuracy

  cannot reasonably be questioned.” The occurrence of legal

  proceedings or other court actions are proper facts for judicial

  notice. See Doyle v. People, 2015 CO 10, ¶¶ 2, 11.




  Zapata, 779 P.2d 1307, 1309 (Colo. 1989) (a party on appeal may
  not complain of an error he has injected into the case and the
  invited error doctrine applies to jury instructions).

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                                 2. Analysis

¶ 24   That defendant’s warrant arose in another jurisdiction is of no

  consequence, because the existence of the warrant was capable of

  accurate and ready determination by referring to the statewide

  court database.

¶ 25   Defendant’s assertion that the district court may not take

  judicial notice of the contents of the database because it may

  contain inaccurate records is unpersuasive. “[T]he notion of an

  indisputable fact rests less on the infallibility of a specific source

  and more on the notion that the fact is commonly verifiable, such

  that an error in any particular source can be easily demonstrated.”

  Id. at ¶ 10. We note that here, until just before trial, defendant had

  agreed to stipulate to the existence of the warrant for his arrest.

  Defendant does not argue on appeal, and did not argue at trial, that

  the database was inaccurate in this instance.

¶ 26   We disagree with defendant that the district court’s notice of

  the warrant improperly invaded the province of the jury. Defendant

  relies on civil cases and Doyle to support the proposition that the

  court overstepped by taking judicial notice “of facts on the very

  issue the parties are litigating.” Mun. Subdistrict, N. Colo. Water


                                     11
  Conservancy Dist. v. OXY USA, Inc., 990 P.2d 701, 711 (Colo. 1999)

  (district court improperly noticed basis for expert’s testimony based

  on factual findings from a previous case); see People in Interest of

  C.A.B.L., 221 P.3d 433, 442 (Colo. App. 2009) (district court

  improperly took judicial notice of the contents of a guardian ad

  litem report); see also Doyle, ¶ 13 (district court erred by taking

  notice of an inference that the defendant had not appeared at a

  proceeding based on court records suggesting his absence).

¶ 27   These cases are inapposite, because each relies on the court

  taking an additional step beyond notice of the existence of a record.

  Here, the district court took notice only of the existence of the

  warrant. And the existence of an arrest warrant is not an element

  of the offense of attempt to influence a public servant. We conclude

  that this is an adjudicative fact squarely within the kinds of facts

  noticeable pursuant to CRE 201. See Doyle, ¶ 11 (court records

  such as briefs, indictments, convictions, and pleas have been

  recognized as adequate sources for judicially noticeable facts); see

  also Slate v. Pub. Defender Serv. for the District of Columbia, 31 F.

  Supp. 3d 277, 288 (D.D.C. 2014) (court may take judicial notice of

  an arrest warrant because it is a matter of public record).


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                           III. Conclusion

¶ 28   The judgment is affirmed.

       JUDGE BERNARD and JUDGE FOX concur.




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