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


                                                                  SUMMARY
                                                            January 24, 2019

                                 2019COA14

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

     In this prosecutorial appeal from an order of dismissal entered

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

that an electronically stored photograph qualifies as “physical

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

tampering with physical evidence statute. In resolving the appeal,

the division also determined that a duplicate of an electronically

stored photograph was “physical evidence” and that the evidence

presented at the preliminary hearing was sufficient to establish

probable cause to believe that the defendant committed the crime of

solicitation to commit tampering with physical evidence.
COLORADO COURT OF APPEALS                                          2019COA14


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


The People of the State of Colorado,

Plaintiff-Appellant,

v.

Justin Walter Rieger,

Defendant-Appellee.


                        ORDER REVERSED AND CASE
                        REMANDED WITH DIRECTIONS

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

                         Announced January 24, 2019


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

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


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

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

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

 solicitation to commit tampering with physical evidence. We reverse

 and remand with directions.

                            I.    Background

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

 offenses committed in connection with an alleged assault on his

 girlfriend. While in jail, Rieger corresponded with the girlfriend

 through Telmate, an electronic messaging system that allows

 detainees to communicate with people outside the jail.

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

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

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

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

 incriminate me.” The girlfriend removed the picture from the

 Telmate account.




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

 Telmate account had seen the picture1 and Rieger’s correspondence

 with the girlfriend.

¶5    The prosecution charged Rieger in this separate case with

 solicitation to commit tampering with physical evidence. After a

 preliminary hearing, the district court dismissed the case because

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

                             II.   Analysis

¶6    The People contend that the district court improperly

 dismissed the case. We agree.

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

 preliminary hearing for an abuse of discretion, People v. Hall, 999

 P.2d 207, 221 (Colo. 2000), we will not overturn such a ruling

 absent a showing that it is either manifestly arbitrary,



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

                                    2
  unreasonable, or unfair, People v. Castro, 854 P.2d 1262, 1265

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

  Moore, 226 P.3d 1076, 1081 (Colo. App. 2009).

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

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

  interpretation of the statute presents a question of law that we

  review de novo. People v. Johnson, 2015 CO 70, ¶ 9.

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

  effect to the intent of the General Assembly. Dubois v. People, 211

  P.3d 41, 43 (Colo. 2009). “To discern the legislative intent, we look

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

  in context and construing them according to rules of grammar and

  common usage.” People v. Butler, 2017 COA 117, ¶ 24 (citation

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

  particular meaning, whether by legislative definition or otherwise,

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

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

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

  interpretation.” People v. Shores, 2016 COA 129, ¶ 16 (citing People

  v. Van De Weghe, 2012 COA 204, ¶ 8). But “[w]hen the language of


                                    3
  a statute is susceptible of more than one reasonable understanding

  and is therefore considered ambiguous,” People v. Jones, 2015 CO

  20, ¶ 10, “a court must look beyond the language [of the statute]

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

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

  Lovato, 2014 COA 113, ¶ 23.

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

  tampering with physical evidence if, believing that an official

  proceeding is pending or about to be instituted and acting without

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

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

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

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

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

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

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

  the definition of “physical evidence” to exclude electronic documents


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


                                      4
  such as the photograph the girlfriend uploaded to the Telmate

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

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

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

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

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

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

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

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

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

  of statutory construction because it is otherwise clear to us that

  electronically stored documents or information falls within the


  3 Under the last antecedent rule — which was legislatively
  repudiated in 1981 after the tampering statute had been enacted —
  there is a “presumption that referential and qualifying words and
  phrases refer solely to the last antecedent clause immediately
  preceding them.” People v. O’Neal, 228 P.3d 211, 214 (Colo. App.
  2009).

  4 The “exception” to which Rieger refers is this: “When a referential
  or qualifying clause follows several words or phrases and is
  applicable as much to the first word or phrase as to the others in
  the list, . . . the clause should be applied to all of the words or
  phrases that preceded it.” Estate of David v. Snelson, 776 P.2d 813,
  818 (Colo. 1989).


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

  Bestop, Inc., 23 P.3d 700, 706 n.5 (Colo. 2001) (“Because the

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

  resort to interpretive rules of statutory construction and thus do

  not address the parties’ arguments regarding the effect of various

  rules of statutory construction, such as the ‘last antecedent

  rule’. . . .”).5

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

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

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

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

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


  5 We need not, then, independently determine the precise meaning
  of the term “physical substance”; whether the phrase “any. . .
  record” can be read independently of the phrase “physical
  substance”; and, if so, whether an electronically stored photograph
  qualifies as a “record” encompassed within the definition of
  “physical evidence.” Cf. Henson v. State, 723 S.E.2d 456, 459 (Ga.
  Ct. App. 2012) (“[T]he ordinary signification of ‘record’ is ‘[a]n
  account of some fact or event preserved in writing or other
  permanent form . . .’ or ‘any thing . . . serving to indicate or give
  evidence of, or preserve the memory of, a fact or event.’” And given
  that a picture certainly preserves or gives evidence of a fact or event
  — in many instances as efficiently as a thousand words — Henson’s
  claim that the term “electronic records” does not encompass
  pictures or photographs lacks merit.”).

                                      6
  Tollefson, 961 P.2d 1150, 1154 (Colo. App. 1998). It “denotes that

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

  Dupont, 35 P.3d 433, 439 (Colo. 2001), but only illustrative, People

  v. Patton, 2016 COA 187, ¶¶ 14-16; see Bryan A. Garner, Garner’s

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

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

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

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

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

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

  finder. As noted in one commentary:

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

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

  Evidence, § 11-1 (July 15, 1987), 1987 WL 61783; see 23 C.J.S.

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

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

  jury without the intervention of the testimony of witnesses, as


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

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

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

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

  ours prohibiting tampering with physical evidence. See State v.

  Peplow, 2001 MT 253, ¶ 22 (equating “physical evidence” with “a

  ‘thing presented to the senses’”).

¶ 16   Other jurisdictions recognize that photographs are a form of

  “physical evidence.” See, e.g., Medina v. Williams, 565 F. App’x 644,

  646 (9th Cir. 2014) (photographs of bruises and cuts inflicted in

  assault); People v. Elizalde, 351 P.3d 1010, 1016 (Cal. 2015)

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

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

  England v. State, 940 So. 2d 389, 395 (Fla. 2006) (autopsy

  photographs); State v. Beynon, 484 N.W.2d 898, 907 (S.D. 1992)

  (photographs of injuries inflicted in assault).

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

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

  M., 692 S.E.2d 299, 304 (W. Va. 2010), the West Virginia Supreme

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


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

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

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

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

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

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

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

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

  reaches electronic images captured by Smartphones and other

  digital technology.”).

¶ 18   Further, courts have upheld the admissibility of digital

  photographs based on the same or similar type of foundation

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

  State, 214 S.W.3d 849, 421 (Ark. 2005); People v. Goldsmith, 326

  P.3d 239, 248-49 (Cal. 2014); State v. Marquardt, 2017 WI App 34,

  ¶ 22, 899 N.W.2d 737.

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

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

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

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


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

  the tampering with physical evidence statute.

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

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

  tampering statute is clear: to punish attempts to subvert the

  administration of justice. See People v. Atencio, 140 P.3d 73, 77

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

  610] that the General Assembly intended to criminalize behavior

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

  Yascavage, 101 P.3d 1090, 1092 (Colo. 2004) (The purpose of the

  witness tampering statute “was to punish any attempt to induce

  another to testify falsely or otherwise to subvert the administration

  of justice.”).

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

  photographs, and records are stored electronically. Allowing

  individuals to conceal, remove, or alter digitally stored information

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

  protect the administration of justice.

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

  dismissing the case on the ground that electronically stored images


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

  however, end our analysis.

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

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

  that ground was relied upon or even contemplated by the trial

  court.” People v. Quintana, 882 P.2d 1366, 1371 (Colo. 1994). In

  this regard, Rieger contends that even if an electronically stored

  photograph falls with the meaning of physical evidence, this court

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

  because

           an electronic duplicate of an image uploaded to Telmate

             does not constitute “physical evidence,” and

           “the removal of this image from that communications

             system does not evince a specific intent to make the

             image unavailable at trial.”

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

  testimony that he believed that the original photograph was taken

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

  picture was uploaded to Telmate. Rieger bases the legal component

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

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

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

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

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

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

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

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

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

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

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

  elements of the crime, there is no crime.




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

  constitute “physical evidence” for purposes of the tampering

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

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

  copies exist.

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

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

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

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

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

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

  Law Inst. 1980).




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

  desired removal of a duplicate image from the Telmate

  communications system evinces a specific intent to make the image

  unavailable at trial.

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

  circumstances in which the removal of one of several identical items

  may not tend to prove a specific intent to make evidence

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

  circumstances in Costanzo v. State, 152 So. 3d 737 (Fla. Dist. Ct.

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

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

  criminal case where the defendants were two other police officers

  and friends of the defendant. Id. at 738. He then showed the video

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

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

  Association. Id. He then deleted the video from his cell phone. Id.

  A jury convicted him of tampering with physical evidence.

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

  defendant’s conviction, reasoning as follows:




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

          ....

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

          ....

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

Id. at 738-39.6


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

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

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

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

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

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

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

  making it unavailable for trial.

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

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

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

  to others. Although Rieger never said anything to the girlfriend

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

  that the photograph on Telmate be removed because it could

  “incriminate [him].”

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

  reviewing the sufficiency of the evidence not in relation to a

  conviction after trial but in relation to a probable cause

  determination after preliminary hearing.

¶ 34   “[P]robable cause is a low standard.” People v. Fry, 92 P.3d

  970, 976-77 (Colo. 2004). The prosecution is not required to


                                     16
  produce evidence establishing beyond a reasonable doubt that the

  defendant committed the crime or even the likelihood that the

  defendant committed the crime; instead, it need only present

  evidence sufficient to induce a person of ordinary prudence and

  caution to entertain a reasonable belief that the defendant

  committed the crime. Hall, 999 P.2d at 221.

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

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

  whole and draw all reasonable inferences in the light most favorable

  to the prosecution. People v. Keene, 226 P.3d 1140, 1144 (Colo.

  App. 2009).

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

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

  evidence that he intended to make that picture unavailable for use

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

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

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

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

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

  inferred from his statement that Rieger meant to have the picture


                                   17
  removed from the account before the authorities learned of its

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

  suspect that another such picture existed anywhere.

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

  ordinary prudence and caution to entertain a reasonable belief that

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

  picture. Because probable cause supported the charge of

  solicitation to commit tampering with physical evidence, the case

  should not have been dismissed.

                            III.   Disposition

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

  matter is remanded with directions to reinstate the case and for

  further proceedings with respect thereto.

       JUDGE ASHBY and JUDGE VOGT concur.




                                    18
