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


                                                                  SUMMARY
                                                            October 10, 2019
                               2019COA152

No. 16CA0048, People v. Knox — Crimes — Attempt to
Influence a Public Servant — Criminal Extortion

     A division of the court of appeals considers whether police

officers are “public servants” under section 18-8-306, C.R.S. 2019.

The division concludes that the statute is ambiguous; thus, it relies

on the statutory scheme to determine that the General Assembly

intended to include police officers in the broader category of public

servants for purposes of section 18-8-306.

     The division further holds that a defendant may be charged

multiple times for distinct offenses under section 18-8-306 when

the discrete offenses were separated in time and location and

comprised separate volitional departures. See Quintano v. People,

105 P.3d 585, 592 (Colo. 2005).
     Finally, the division concludes that a threat of litigation to

cause economic hardship does not constitute criminal extortion

because it is not an “unlawful act,” which is necessary to prove

criminal extortion under section 18-3-207(1)(a), (b)(1), C.R.S. 2019.

    Accordingly, the division affirms the judgment in part and

vacates the criminal extortion conviction.
COLORADO COURT OF APPEALS                                       2019COA152


Court of Appeals No. 16CA0048
Jefferson County District Court No. 14CR3169
Honorable Todd L. Vriesman, Judge


The People of the State of Colorado,

Plaintiff-Appellee,

v.

Ashley Rae Ruth Knox,

Defendant-Appellant.


                        JUDGMENT AFFIRMED IN PART
                           AND VACATED IN PART

                                  Division I
                        Opinion by JUDGE TAUBMAN
                        Freyre and Pawar, JJ., concur

                         Announced October 10, 2019


Philip J. Weiser, Attorney General, Kevin E. McReynolds, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Kamela Maktabi, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant
¶1    Defendant, Ashley Rae Ruth Knox, appeals the judgment of

 conviction entered on a jury verdict finding her guilty of criminal

 extortion and three counts of attempt to influence a public servant. 1

 Knox raises two contentions on appeal: first, the district court erred

 in concluding that police officers are public servants under section

 18-8-306, C.R.S. 2019; and second, her threat of litigation absent

 settlement of a potential personal injury claim did not constitute

 criminal extortion under section 18-3-207(1)(a), (b)(I), C.R.S. 2019.

 Because we disagree with her first contention, we affirm her

 convictions for attempt to influence a public servant. However,

 because we agree with her second contention, we vacate her

 conviction for criminal extortion.

                            I. Background

¶2    On November 26, 2014, Amber Diedrichs-Giffin was turning

 left in her car when she heard a “bang” as Knox forcefully placed

 her hands on the hood of the car. When Diedrichs-Giffin asked if

 Knox was okay, Knox responded that her “leg kind of hurts.”




 1The jury also found her guilty of two counts of false reporting;
 however, Knox does not appeal those convictions.

                                      1
 Diedrichs-Giffin provided her insurance and contact information;

 however, Knox declined to contact law enforcement officials and

 asked for “weed” or money, stating, “We could settle this now.”

 Knox walked away — seemingly uninjured — after Diedrichs-Giffin

 directed Knox to contact Diedrichs-Giffin’s insurance company.

¶3    Shortly afterward, Diedrichs-Giffin called 911 to report the

 accident, expressing her uncertainty about who was at fault. The

 dispatcher told her that, without an injury, she did not need to file

 a report; but if Knox contacted law enforcement officials later, they

 could refer to the recording of Diedrichs-Giffin’s call.

¶4    Later the same day, Knox sent Diedrichs-Giffin a series of text

 messages asking to settle matters outside of court. The particular

 text message underlying the eventual criminal extortion charge and

 conviction stated:

            Hey amber, this is Ashley the young lady, u
            hit..i have a little amount of time if i want to
            pursue, court action…im already on pain
            management and am going through hard times
            like everyone..im sure..id rather u help me out
            we agree to a one time feesable amount. We
            can even sign something if u want..to keep out
            of a long court proceeding going back to court
            over several months, insurance goin up, and
            my medical bills, since im in and out of
            hospital already[.] Let me know, if that works


                                    2
           for you, or u would rather draw it out in court.
           Thanks[.]

 Diedrichs-Giffin did not respond to the message and testified that

 she perceived it as an attempt to “make a one-time deal with me so

 that way we didn’t have to pursue it in court.”

¶5    Six days later, Knox walked to an area near where the incident

 occurred and called 911, reporting that she had just been injured in

 a hit-and-run accident. Among other things, she claimed that the

 driver had refused to wait for police and she could not walk home

 because her leg and hip hurt.

¶6    Arvada police officers Dustin LeDoux and Donald Smith

 responded to Knox’s report. Knox described Diedrichs-Giffin and

 her vehicle to Officer Smith and provided him with her license plate

 number. During the subsequent ambulance ride to the hospital,

 she provided a more detailed account to Officer LeDoux.

¶7    Officer LeDoux tracked down Diedrichs-Giffin and learned that

 the incident had, in fact, taken place six days earlier. He also

 procured a copy of the text Knox had sent to Diedrichs-Giffin the

 day of the incident. Officer LeDoux interviewed Knox at the hospital

 after hearing Diedrichs-Giffin’s account. She initially maintained



                                   3
 her version of events, but when confronted with the text message,

 she admitted that the incident had occurred six days earlier. She

 explained that she had lied about the timing because she feared not

 receiving medical treatment otherwise.

¶8    The district attorney charged Knox with criminal extortion,

 false reporting, and three counts of attempt to influence a public

 servant. The jury rejected her arguments that she was guilty only

 of false reporting and that the prosecution had failed to prove that

 she staged the accident or faked her injuries. She was convicted of

 all counts, and this appeal followed.

                    II. Sufficiency of the Evidence

¶9    Knox contends that the prosecution failed to prove beyond a

 reasonable doubt that she committed three offenses of attempt to

 influence a public servant; thus, she argues that we must vacate

 her convictions because the evidence was insufficient to establish

 her guilt. Before determining whether there was sufficient evidence

 to convict Knox of attempting to influence a public servant, we must

 address two preliminary questions — (1) whether police officers are

 public servants and (2) whether Knox could be convicted of three

 offenses or only one offense.


                                   4
                A. Attempt to Influence Public Servants

¶ 10   Knox argues that the district court erred in concluding that

  police officers are public servants for purposes of attempting to

  influence a public servant under section 18-8-306. We disagree.

                         1. Standard of Review

¶ 11   Sufficiency of the evidence claims may be raised for the first

  time on appeal and are not subject to plain error review. McCoy v.

  People, 2019 COA 44, ¶ 19, 442 P.3d 379, 385.

¶ 12   We review questions of statutory interpretation de novo.

  People v. Sena, 2016 COA 161, ¶ 10, 395 P.3d 1148, 1150.

¶ 13   When interpreting a statute, we look first to the language of

  the statute, attributing plain and ordinary meanings to all words

  and phrases. McCoy, ¶ 37, 442 P.3d at 389. We read the statute in

  context with its broader statutory scheme, “giving consistent,

  harmonious, and sensible effect to all of its parts, and we must

  avoid constructions that would render any words or phrases

  superfluous or lead to illogical or absurd results.” Id. at ¶ 38, 442

  P.3d at 389. If the statutory language is clear and unambiguous,

  we apply the provision as written. Id. If, on the other hand, we

  conclude that the statute is reasonably susceptible of multiple


                                     5
  interpretations, we turn to other interpretive methods to ascertain

  the legislature’s intent and resolve the ambiguity. Id. In so doing,

  we may refer to canons of statutory construction, legislative history,

  and the statute’s purpose. Id.

                     2. Applicable Law and Analysis

¶ 14   In Sena, a division of our court concluded that, by its plain

  language, “police officers are public servants as contemplated in

  section 18-8-306.” Sena, ¶ 15, 395 P.3d at 1151. Knox contends

  Sena was wrongly decided. We agree with the holding in Sena.

  However, although we agree with the Sena division’s conclusion

  that a police officer is a public servant, we reach that conclusion

  after determining that the statute is ambiguous, requiring

  additional interpretation.

¶ 15   On the one hand, the reading of the statute and the

  accompanying statutory scheme relied on by Knox suggests that the

  legislature intended to distinguish police officers from public

  servants by enacting separate statutes to address conduct against

  them in certain circumstances. On the other hand, the Sena

  division concluded, based on the plain language of the statute, that

  police officers are included in the broad definition of public


                                     6
  servants. Because section 18-8-306 is amenable to two reasonable

  interpretations, we conclude it is ambiguous.

¶ 16   The statute governing the crime of attempt to influence a

  public servant provides:

            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.

¶ 17   Section 18-1-901(3)(o), C.R.S. 2019, defines “public servant,”

  generally, as “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.”

  Section 18-8-101(3), C.R.S. 2019, explicitly cross-references and

  adopts section 18-1-901’s general definition; however, section 18-8-

  301(4), C.R.S. 2019, expands on the definition’s scope, as relevant

  here for purposes of section 18-8-306, to include “persons who

  presently occupy the position of a public servant as defined in


                                    7
  section 18-8-101(3) or have been elected, appointed, or designated

  to become a public servant although not yet occupying that

  position.”

¶ 18   Section 18-1-901(3)(o)’s definition of “public servant” does not

  use the term “peace officer.” Title 16, on the other hand, includes

  police and law enforcement officers in the definition of “peace

  officer.” § 16-2.5-101, C.R.S. 2019; § 16-2.5-105, C.R.S. 2019; see

  also § 18-8-101(2.5) (“‘Peace officer’ has the same meaning as

  described in section 16-2.5-101, C.R.S.”).

¶ 19   Some statutes distinguish offenses against a public servant

  from offenses against a peace officer. Based on these statutes,

  Knox contends police officers are not public servants. Specifically,

  she notes that two sets of statutes create separate offenses for

  conduct against police officers and public servants.

¶ 20   First, section 18-8-102, C.R.S. 2019, states that a person

  commits obstruction — a class 3 misdemeanor 2 — of government

  operations by intentionally obstructing, impairing, or hindering the



  2A class 3 misdemeanor is punishable by up to six months
  imprisonment, a $750 fine, or both. § 18-1.3-501(1)(a), C.R.S.
  2019.

                                    8
  performance of a governmental function by a public servant.

  Meanwhile, section 18-8-104, C.R.S. 2019, states that a person

  obstructs a peace officer — a class 2 misdemeanor 3 — when “such

  person knowingly obstructs, impairs, or hinders the enforcement of

  the penal law or the preservation of the peace by a peace officer,

  acting under color of his or her official authority.”

¶ 21   Similarly, the General Assembly established separate offenses

  for impersonating a peace officer, section 18-8-112, C.R.S. 2019,

  and impersonating a public servant, section 18-8-113, C.R.S. 2019.

  Impersonating a peace officer is a class 6 felony, 4 and

  impersonating a public servant is a class 3 misdemeanor. § 18-8-

  112(2); § 18-8-113(3).

¶ 22   While the General Assembly delineated some offenses against

  peace officers separately from offenses against public servants,

  other statutes mention only public servants. In fact, title 18, article

  8, part 3 only discusses public servants. Nevertheless, in In re



  3 A class 2 misdemeanor is punishable by up to 364 days
  imprisonment, a $1000 fine, or both. Id.
  4 A class 6 felony is punishable by up to eighteen months in prison

  with a one year mandatory period of parole, a $100,000 fine, or
  both. § 18-1.3-401, C.R.S. 2019.

                                     9
  Elinoff, 22 P.3d 60, 62 (Colo. 2001), the supreme court affirmed the

  suspension of an attorney for three years for bribing two police

  officers under section 18-8-302(1)(a), C.R.S. 2019. Similarly, as the

  Sena division noted, another division of our court in People v. Van

  De Weghe, 2012 COA 204, ¶ 13, 312 P.3d 231, 234, accepted

  without question that the defendant attempted to influence a public

  servant under section 18-8-306 when he provided false information

  to a police officer.

¶ 23     Though these decisions are not dispositive, they are consistent

  with a plain reading of the statutory scheme, which suggests that

  the General Assembly deliberately separated some offenses against

  peace officers from those against public servants, while

  encompassing peace officers in the broader category of public

  servants for purposes of title 18, article 8, part 3. The General

  Assembly may have intended to punish more harshly crimes

  against peace officers in the circumstances noted above,

  considering that those offenses carry harsher sentences. 5




  5   See supra notes 2–4.

                                    10
¶ 24   Moreover, the General Assembly did not enact alternative

  legislation defining an attempt to influence a peace officer, and we

  do not believe it intended to leave such an act unregulated.

¶ 25   Knox argues that an interpretation of section 18-8-306 that

  considers peace officers to be public servants renders superfluous

  the offense of false reporting to authorities under section 18-8-111,

  C.R.S. 2019. We disagree, and instead adopt the holding in People

  v. Blue, 253 P.3d 1273, 1278 (Colo. App. 2011). There, the division

  concluded that false reporting does not constitute a specific

  instance of attempt to influence a public servant. Id. Indeed, the

  crime of false reporting does not require an intent to influence the

  actions or decisions of a public official; rather, it “penalizes those

  who provide untruthful information to public officials.” Id. Thus,

  our interpretation of section 18-8-306 does not render superfluous

  the offense of false reporting — instead it establishes a separate

  offense with a separate mens rea. An individual can provide false

  information with no intention of influencing authorities, such as

  when a celebrity uses a pseudonym to protect his or her privacy.

  See id. at 1277. A defendant may be convicted of both attempt to

  influence a public servant and false reporting to authorities. Id.


                                     11
¶ 26   Accordingly, we conclude that police officers are public

  servants for purposes of section 18-8-306.

   B. Multiple Convictions for Attempt to Influence a Public Servant

¶ 27   Knox argues that her convictions for attempt to influence a

  public servant are multiplicitous in violation of her right to be free

  from double jeopardy. She claims that her convictions stemmed

  from a single, continuous course of conduct; thus, the court erred

  in entering judgment against her on one count of attempt for each

  law enforcement official with whom she spoke. We disagree.

                          1. Standard of Review

¶ 28   We review this unpreserved double jeopardy issue for plain

  error. See McCoy, ¶ 19, 442 P.3d at 385; Scott v. People, 2017 CO

  16, ¶ 12, 390 P.3d 832, 835. We reverse an unpreserved error only

  if an error was both obvious and substantial and “so undermined

  the fundamental fairness of the trial itself so as to cast serious

  doubt on the reliability of the judgment of conviction.” Hagos v.

  People, 2012 CO 63, ¶ 14, 288 P.3d 116, 120. “Plain errors or

  defects affecting substantial rights may be noticed although they

  were not brought to the attention of the court.” Crim. P. 52(b).




                                     12
                                2. Applicable Law

¶ 29   The Double Jeopardy Clauses of the United States and

  Colorado Constitutions preclude multiple convictions and

  punishments for the same crime. U.S. Const. amends. V, XIV;

  Colo. Const. art. II, § 18.

¶ 30   The related concept of “[m]ultiplicity is the charging of the

  same offense in several counts, culminating in multiple

  punishments.” Quintano v. People, 105 P.3d 585, 589 (Colo. 2005).

  An individual’s protection from double jeopardy prohibits

  multiplicitous charges for the same offense but does not insulate a

  defendant from being prosecuted for distinct offenses under the

  same statute. Id. at 590. It also does not bar punishment for the

  same criminal conduct under multiple statutes. Woellhaf v. People,

  105 P.3d 209, 214 (Colo. 2005).

¶ 31   We determine whether the statute authorizes conviction on

  discrete charges by measuring the prescribed unit of prosecution,

  which is “the manner in which a criminal statute permits a

  defendant’s conduct to be divided into discrete acts for purposes of

  prosecuting multiple offenses.” Id. at 215; Quintano, 105 P.3d at

  589. Once we identify the unit of prosecution, we look to the


                                       13
  evidence to determine whether the defendant’s conduct constituted

  factually discrete offenses. People v. Vigil, 251 P.3d 442, 448 (Colo.

  App. 2010).

              To determine whether offenses are factually
              distinct, courts have considered (1) whether
              the acts occurred at different times and were
              separated by intervening events; (2) whether
              there were separate volitional acts or new
              volitional departures in the defendant’s course
              of conduct; and (3) factors such as temporal
              proximity, the location of the victim (e.g., if the
              victim was moved), the defendant’s intent as
              indicated by his or her conduct and
              utterances, and the number of victims.

  People v. McMinn, 2013 COA 94, ¶ 22, 412 P.3d 551, 558.

  If we determine that the statute intended to create an ongoing and

  continuous offense, we must conclude that multiplicitous charges

  under the statute violate the defendant’s double jeopardy rights.

¶ 32     Therefore, because the prosecution charged Knox with

  committing distinct offenses under the same statute, we apply a

  two-tiered analysis — “(1) whether the unit of prosecution

  prescribed by the legislature permits the charging of multiple

  offenses; and (2) whether the evidence in support of each offense

  justifies the charging of distinct offenses.” Quintano, 105 P.3d at

  590.


                                      14
¶ 33   This analysis requires us to look to the statutory language to

  “ascertain and effectuate the legislative intent.” Woellhaf, 105 P.3d

  at 215. Thus, we, again, apply principles of statutory interpretation

  to determine whether section 18-8-306 authorizes charges of the

  same offense in multiple counts. Supra Part II.A.1. In so doing, we

  are mindful of the presumption against classifying a crime as a

  continuing offense. People v. Thoro Prods. Co., 70 P.3d 1188, 1192

  (Colo. 2003); People v. Johnson, 2013 COA 122, ¶ 14, 327 P.3d 305,

  307; People v. Pérez, 129 P.3d 1090, 1092 (Colo. App. 2005).

                         3. Unit of Prosecution

¶ 34   As noted, section 18-8-306 states, in pertinent part:

            Any 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 or the agency
            or body of which he is a member, commits a
            class 4 felony.

  We look first to the plain language and agree with the People’s

  contention that the relevant actus reus is an “attempt to influence.”

  The statute does not define “attempt”; however, as relevant here,

  Black’s Law Dictionary defines the term as “[t]he act or an instance



                                   15
  of making an effort to accomplish something, esp. without success.”

  Black’s Law Dictionary 158 (11th ed. 2019). We do not believe that

  the statutory definition of “attempt,” defined in section 18-2-101,

  C.R.S. 2019, applies to section 18-8-306. See People v. Riley, 2015

  COA 152, ¶¶ 27-29, 380 P.3d 157, 163-64 (concluding that

  incorporating the statutory definition of “attempt” would be illogical

  because section 18-8-306 “proscribes attempting to influence a

  public servant,” and there is no offense of “influencing a public

  servant”).

¶ 35   Thus, to attempt to influence a public servant, a person must

  knowingly make an effort to influence a public servant. We

  conclude, just as the McMinn division did when it considered the

  units of prosecution for vehicular eluding and eluding a police

  officer, that the plain language of section 18-8-306 considers “a

  particular volitional act against a particular officer.” McMinn,

  ¶¶ 25, 31, 412 P.3d at 558-59. However, the discrete offenses are

  not defined by the number of officers involved, but rather by the

  distinct volitional acts of attempt to influence. See id. at ¶ 26, 412

  P.3d at 558.




                                    16
¶ 36   We agree with Knox that defining the number of offenses solely

  by the number of officers involved would lead to an absurd result —

  for instance, if a person were charged with five offenses for

  simultaneously lying to five officers. Nevertheless, this scenario is

  distinct from one in which a person lies to five officers at five

  separate times, with each act isolated in time and constituting a

  volitional departure in the course of conduct. See Quintano, 105

  P.3d at 592.

¶ 37   Accordingly, we hold that a defendant may be charged with

  multiple offenses of attempting to influence a public servant arising

  from a single criminal episode when the discrete offenses were

  separated in time and location and comprised separate volitional

  departures. See id.; see also McMinn, ¶ 31, 412 P.3d at 559.

                 4. Evidence in Support of Each Offense

¶ 38   We next apply the unit of prosecution to the circumstances

  present here. In so doing, we ask whether Knox’s conduct

  constituted discrete offenses supporting her three convictions for

  attempting to influence a public servant.

¶ 39   The People argue that Knox’s report to the dispatcher, her

  account to Officer Smith, and her statement to Officer LeDoux were


                                     17
  three separate incidents. The evidence at trial supports this

  conclusion: (1) Knox called dispatch to inaccurately report her

  involvement in an accident that had just taken place; (2) Officer

  Smith testified that he arrived on the scene and immediately took

  Knox’s initial statement, gathering details to enable him to locate

  the alleged perpetrator; and (3) as she was transported to the

  hospital for treatment, Knox gave a more detailed statement to

  Officer LeDoux.

¶ 40   Each of these statements took place at distinct times, were

  recited to different public servants, and were separated by

  intervening events — the dispatcher called police to the scene;

  Officer Smith took Knox’s statement before the ambulance arrived;

  and after the ambulance arrived, Officer LeDoux spoke with Knox

  during their ride to the hospital. Moreover, each statement was

  given in furtherance of her goal to seek medical attention and,

  likely, initiate a police report to enable Knox to file a claim against

  Diedrichs-Giffin’s insurance company.

¶ 41   Accordingly, we disagree with Knox’s contention that all three

  statements arose from a single course of conduct — the 911 call.




                                     18
  Instead, we uphold her three convictions for attempt to influence a

  public servant.

                    C. Proof Beyond a Reasonable Doubt

¶ 42   Having determined that police officers are public servants

  under section 18-8-306 and that the statute allows for multiple

  convictions, we address Knox’s argument that the prosecution

  failed to meet its burden of proof to establish that she committed

  the three attempts to influence a public servant. She supports this

  contention by alleging that (1) the prosecution failed to prove that

  police officers are public servants and (2) she did not possess the

  necessary mens rea to attempt to influence the dispatcher. We

  disagree.

                          1. Standard of Review

¶ 43   We review de novo whether the evidence presented at trial was

  sufficient to sustain a conviction. Dempsey v. People, 117 P.3d 800,

  807 (Colo. 2005).

                            2. Applicable Law

¶ 44   We engage in a substantial evidence test to determine whether

  the evidence presented at trial sufficiently sustains the conviction.

  Clark v. People, 232 P.3d 1287, 1291 (Colo. 2010). Under this test,


                                    19
  we ask “whether the relevant evidence, both direct and

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

  favorable to the prosecution, is substantial and sufficient to support

  a conclusion by a reasonable mind that the defendant is guilty of

  the charge beyond a reasonable doubt.” Id. (quoting People v.

  Bennett, 183 Colo. 125, 130, 515 P.2d 466, 469 (1973)). We give

  the prosecution the benefit of every reasonable inference that may

  fairly be drawn from the evidence, and we do not consider vague,

  speculative, or imaginary doubt to be reasonable doubt. Id. at

  1292.

                               3. Analysis

¶ 45   Having already established that Officers Smith and LeDoux

  were public servants, we need only address whether the prosecution

  proved that the dispatcher was a public servant and that Knox

  attempted to influence the dispatcher.

¶ 46   First, the prosecution established that the dispatcher worked

  for the Arvada Police Department, a government agency, and was

  legally authorized to answer incoming emergency 911 calls and

  dispatch those calls for service. When the dispatcher responded to

  Knox’s call and dispatched police officers and emergency


                                   20
  responders, she was working in accordance with her official duties.

  We conclude that, viewing the evidence in the light most favorable

  to the prosecution, reasonable jurors could conclude that the

  dispatcher was a public servant, particularly under the relevant,

  jointly approved jury instruction:

            “Public servant” means any officer or employee
            of government, whether elected or appointed,
            and any person participating as an adviser,
            consultant, process server, or otherwise in
            performing a government function, but the
            term does not include witnesses.

  Accord COLJI-Crim. F:306 (2018).

¶ 47   Second, by contacting dispatch, Knox intended to “alter or

  affect” the dispatcher’s actions (i.e., sending police and emergency

  responders), 6 as outlined in section 18-8-306. Thus, we conclude

  that reasonable jurors could also conclude that Knox intended to

  influence the dispatcher’s actions, not merely convey information.




  6 Knox does not make a similar factual argument regarding the two
  police officers, instead maintaining only her earlier argument that
  they were not public servants.

                                       21
                          III. Criminal Extortion

¶ 48   Knox contends, the People concede, and we agree that Knox’s

  threats of litigation to cause “economic hardship” were insufficient

  to prove her guilty of criminal extortion.

¶ 49   As pertinent here, a person commits criminal extortion if

             (a) The person, without legal authority and
             with the intent to induce another person
             against that other person’s will to perform an
             act or to refrain from performing a lawful act,
             makes a substantial threat to . . . cause
             economic hardship . . . to . . . the threatened
             person or another person; and

             (b) The person threatens to cause the results
             described in paragraph (a) of this subsection
             (1) by:

             (I) Performing or causing an unlawful act to be
             performed . . . .

  § 18-3-207. Thus, as a Colorado federal district court decision

  explained, proof of extortion requires the prosecution to prove

             (i) a person, lacking legal authority to do so,
             ma[de] a threat to . . . cause economic . . .
             harm to the victim, with the intent of coercing
             the victim to perform an act or refrain from
             performing an act, and (ii) the person
             propose[d] to do so by resorting to an unlawful
             act or by threatening to invoke action by a
             third party, such as law enforcement.




                                    22
  Witt v. Snider, Civ. A. No. 16-cv-01303-MSK-CBS, 2017 WL

  2215252, at *5 (D. Colo. May 19, 2017). However, making a threat

  to do something while lacking express legal authority is not

  tantamount to committing an unlawful act. See Whimbush v.

  People, 869 P.2d 1245, 1249 (Colo. 1994). The defendant must

  have made a threat to commit an unlawful act. Id.

¶ 50   Because no Colorado court has addressed this issue, we look

  to the decisions of other jurisdictions that reached this conclusion.

  As both parties mention, the overwhelming majority of jurisdictions

  addressing the unlawful act requirement in the federal analogue

  conclude that “[a] threat to litigate, by itself, is not necessarily

  ‘wrongful’ within [this context]. After all, under our system, parties

  are encouraged to resort to courts for the redress of wrongs and the

  enforcement of rights.” United States v. Pendergraft, 297 F.3d 1198,

  1206 (11th Cir. 2002); see Deck v. Engineered Laminates, 349 F.3d

  1253, 1257–58 (10th Cir. 2003); Rendelman v. State, 927 A.2d 468,

  481 (Md. Ct. Spec. App. 2007), aff’d, 947 A.2d 546 (Md. 2008); see

  also Zueger v. Goss, 2014 COA 61, ¶ 42, 343 P.3d 1028, 1038 (Colo.

  App. 2014) (“Settlement implies a compromise; it does not establish

  conduct against one’s will.”).


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¶ 51   Accordingly, Knox’s threat to sue Diedrichs-Giffin did not

  suggest that she intended to act unlawfully; instead, she gave

  Diedrichs-Giffin the option to settle her alleged claim to avoid

  litigation. We join other jurisdictions in concluding that the threat

  of litigation does not constitute criminal extortion. Accordingly, we

  vacate Knox’s conviction for criminal extortion.

                   IV. Jury Instruction on Mens Rea

¶ 52   Knox contends that the district court erred in not instructing

  the jury on the mens rea for each element of the criminal extortion

  charge. We need not address this issue because we vacate her

  criminal extortion conviction.

                             V. Conclusion

¶ 53   Accordingly, the judgment is affirmed in part, and the criminal

  extortion conviction is vacated.

       JUDGE FREYRE and JUDGE PAWAR concur.




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