SUMMARY 

June 14, 2018 

2018COA84

No. 15CA0714, People v. Tee — Criminal Procedure — Grand 

Jury — Indictment; Juries — Predeliberation — Waiver; Crimes 

— Attempt to Influence a Public Servant 

A division of the court of appeals first rejects defendant’s 

assertion that because the statewide grand jury indictment received 

by the venue court did not include, for confidentiality reasons, a 

copy of the foreperson’s signature, the venue court lacked 

jurisdiction. Next, as to defense counsel’s waiver of a 

predeliberation contention, the division distinguishes People v. 

Rediger, 2018 CO 32, relying instead on Stackhouse v. People, 2015 

CO 48, to find intentional relinquishment of a known right. Finally, 

the division concludes that the evidence of attempt to influence a 

public servant was insufficient where defendant only input false 

data concerning an auto accident on a computer terminal in a 

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. 
police department, without knowing or having any reason to know 

that a department technician would screen the information before 

forwarding the accident report to another database. 
COLORADO COURT OF APPEALS 2018COA84

Court of Appeals No. 15CA0714 

Arapahoe County District Court No. 13CR691 

Honorable Marilyn Leonard Antrim, Judge 

The People of the State of Colorado, 

Plaintiff-Appellee, 

v. 

Mike Tee, 

Defendant-Appellant. 

JUDGMENT AFFIRMED IN PART, VACATED IN PART, 

AND CASE REMANDED WITH DIRECTIONS 

Division III 

Opinion by JUDGE WEBB 

Richman and Fox, JJ., concur 

Announced June 14, 2018 

Cynthia H. Coffman, Attorney General, Kevin E. McReynolds, Assistant 

Attorney General, Denver, Colorado, for Plaintiff-Appellee 

Douglas K. Wilson, Colorado State Public Defender, Dayna Vise, Deputy State 

Public Defender, Denver, Colorado, for Defendant-Appellant
1 

¶ 1 After hearing evidence involving identity theft and insurance 

fraud, a jury convicted Mike Tee of multiple charges, including two 

counts of attempting to influence a public servant. Specifically, he 

contends that 

 because the indictment received by the district court did not 

contain the signature of the grand jury foreperson, it did not 

confer jurisdiction and all charges must be dismissed; 

 because two jurors engaged in predeliberation, he is entitled to 

a new trial; 

 because insufficient evidence supported the two convictions 

for attempting to influence a public servant, these convictions 

must be vacated; and 

 the mittimus must be corrected to conform to the sentence the 

trial court announced at the sentencing hearing, despite a 

lengthier sentence that the court imposed later. 

¶ 2 The Attorney General concedes, and we agree, that the 

mittimus must be corrected. As to the other three contentions, we 

conclude that the signature of the foreperson need not be provided 

to the district court; defense counsel waived any error as to 

predeliberation; and the evidence was sufficient to support one 
2 

count of attempting to influence a public servant, but insufficient as 

to the other count. Therefore, we vacate the judgment as to one 

count of attempting to influence a public servant (Count 24) and 

remand to correct the mittimus. 

I. The Grand Jury Indictment Conferred Jurisdiction on the 

Arapahoe County District Court 

¶ 3 Tee first contends “the indictment returned by the grand jury 

was not signed by the foreman and, therefore, failed to invoke the 

court’s jurisdiction because it did not comply with the substantial 

requirements of [section] 16-5-201,” C.R.S. 2017. That section 

provides: “Every indictment shall be signed by the foreman of the 

grand jury returning it and by the prosecuting attorney, his or her 

assistant, or his or her deputy.” Tee also relies on Crim. P. 7(a)(1): 

“An indictment shall be a written statement presented in open court 

by a grand jury to the district court which charges the commission 

of any crime by an alleged offender.” He does not challenge the 

indictment for failure to satisfy any of the requisites set out in Crim. 

P. 7(a)(2). 
3 

¶ 4 Tee correctly points out that the appellate record initially 

certified included pages one through thirty-five of the indictment, 

which ended with the following: 

The 2012-2013 Colorado Statewide Grand 

Jury presents the Indictment contained within 

and the same is hereby ORDERED FILED this 

28 day of March, 2013. 

Pursuant to § 13-73-107, C.R.S., the Court 

designates Arapahoe County, Colorado as the 

county of venue for the purposes of trial. 

Arrest Warrants are Issued for: 

Mike Tee . . . . 

The signature of the foreperson was not included. 

¶ 5 According to the Attorney General, this occurred because the 

district court for the City and County of Denver, where the grand 

jury sat, ordered that all information “that might identify Statewide 

Grand Jurors shall be deemed confidential, not to be released to 

anyone other than the prosecutors and/or investigators with the 

Attorney General’s Office without written authorization from the 

Court.” See § 13-73-103, C.R.S. 2017 (“The court . . . shall enter an 

order to preserve the confidentiality of all information that might 

identify state grand jurors when reasonably necessary to protect the 

state grand jury process or the security of the state grand jurors.”). 
4 

¶ 6 Still, we ordered the Arapahoe County District Court to 

supplement the record — under seal — with a complete indictment. 

The court clerk responded with an affidavit attesting that the 

Denver District Court had sent only these pages.1 

¶ 7 Tee clarified at oral argument that the problem is not whether 

the foreperson signed the indictment, but whether the allegedly 

incomplete copy of the indictment filed in the Arapahoe County 

District Court gave that court jurisdiction. We discern no 

jurisdictional defect for two reasons. 

 

1 Upon receipt of this affidavit, we issued a similar order to the 

Denver District Court, which provided, also under seal, pages 

showing the signature of the grand jury foreperson for each count. 

See, e.g., People v. Bergen, 883 P.2d 532, 543 (Colo. App. 1994) 

(“Our review of the sealed grand jury records and the affidavits 

shows support for the trial court’s determination that [the grand 

jurors rendered a determination as to probable cause based upon 

the investigation]; therefore, we decline to disturb it on appeal.”); 

see also People v. Dist. Court, 199 Colo. 398, 402, 610 P.2d 490, 

493 (1980) (“After a careful review of the sealed record containing 

the transcript of the grand jury colloquy, we have concluded that 

ordering the disclosure of the colloquy to defense counsel was an 

abuse of discretion. Although the confidential nature of the 

colloquy forecloses a detailed explanation, the transcript contains 

no statements by the district attorney that would constitute 

potential grounds for establishing the absence of probable cause to 

indict the defendant because of improper conduct of the district 

attorney.”). 
5 

¶ 8 First, “a grand jury indictment constitutes official action 

accusing an individual of a specific violation of the law, for which 

the individual may be tried and subsequently convicted.” People v. 

Thompson, 181 P.3d 1143, 1148 (Colo. 2008); see § 16-1-104(11), 

C.R.S. 2017 (defining “indictment” as “a written statement, 

presented by a grand jury to the district court, which charges the 

commission of a crime by an alleged offender”). And under section 

13-73-107(1), C.R.S. 2017, “[a]ny indictment by a state grand jury 

shall be returned to the chief judge who is supervising the statewide 

grand jury without any designation of venue.” See § 13-73-105, 

C.R.S. 2017 (“Judicial supervision of the state grand jury shall be 

maintained by the chief judge who issued the order impaneling 

such grand jury, and all indictments . . . made by such grand jury 

shall be returned to that judge.”). Thus, the requirement in Crim. 

P. 7(a)(1) that the indictment be “presented in open court by a 

grand jury to the district court which charges the commission of any 

crime” (emphasis added) applied to the Denver District Court. 

¶ 9 Second, Tee cites no authority, nor have we found any, 

applying the requirements of Crim. P. 7(a)(1) to the district court 

that is designated “as the county of venue for the purposes of trial” 
6 

after the statewide grand jury indictment has been returned. And 

section 13-73-107(1), which provides that after an indictment is 

returned, “the chief judge shall, by order, designate any county in 

the state as the county of venue for the purpose of trial,” suggests 

otherwise. 

¶ 10 In sum, we conclude that the Arapahoe County District Court 

had jurisdiction. 

II. Defense Counsel Waived a New Trial Based on Possible 

Predeliberation by Two Jurors 

¶ 11 Tee next contends the trial court “failed to adequately inquire 

into or address the fact the jurors were predeliberating.” He asserts 

that predeliberation constitutes either structural error or a denial of 

due process subject to constitutional harmless error review. Under 

either standard, he continues, all of the convictions must be 

reversed and the case remanded for a new trial. 

¶ 12 The predeliberation concern arose when a victim advocate told 

the prosecutor, who then informed the trial court, that she had 

overheard two jurors discussing the case at lunch. The court took 

testimony from the victim advocate in the presence of the 

prosecutor and defense counsel. Next, the court questioned these 
7 

two jurors separately, also with both counsel present. Then the 

court read the burden of proof instruction to the entire jury. 

¶ 13 According to the Attorney General, we should not review this 

contention because defense counsel waived it. Tee responds that 

waiver is inapplicable because “[t]he error was brought to the 

attention of the court by the prosecution and the trial court had the 

opportunity to address the issue.” But this response deals with 

preservation, not waiver. See, e.g., Berra v. Springer & Steinberg, 

P.C., 251 P.3d 567, 570 (Colo. App. 2010) (“[T]o preserve the issue 

for appeal all that was needed was that the issue be brought to the 

attention of the trial court and that the court be given an 

opportunity to rule on it.”); see also People v. Kadell, 2017 COA 

124, ¶ 43 n.1 (J. Jones, J., concurring in part and dissenting in 

part) (“Simply put, because he didn’t draw the court’s attention to 

the issue, it’s not preserved.”). And the trial court had no reason to 

declare a mistrial after defense counsel expressly renounced that 

remedy. 

A. Law 

¶ 14 Three familiar principles guide waiver analysis in criminal 

cases. 
8 

 A “‘waived’ claim of error presents nothing for an appellate 

court to review.” People v. Bryant, 2013 COA 28, ¶ 13 n.2 

(quoting People v. Rodriguez, 209 P.3d 1151, 1160 (Colo. App. 

2008)). In other words, waiver “specifically removes claims 

from the trial court’s consideration.” Id. (citing Rodriguez, 209 

P.3d at 1160). 

 Still, waiver requires “that the defendant intentionally

relinquished a known right or privilege.” People v. Smith, 2018 

CO 33, ¶ 17; see People v. Kessler, 2018 COA 60, ¶ 37 

(Because “[d]efense counsel explicitly agreed that the specific 

evidence at issue was admissible . . . , Kessler, through his 

counsel, intentionally waived the particular point raised on 

appeal.”). 

 And despite this high bar, “even fundamental rights can be 

waived, regardless of whether the deprivation thereof would 

otherwise constitute structural error.” Stackhouse v. People, 

2015 CO 48, ¶ 8 (courtroom closure). 

¶ 15 The Supreme Court has identified factors limiting waiver. 

“Whether a particular right is waivable; whether the defendant must 

participate personally in the waiver; whether certain procedures are 
9 

required for waiver; and whether the defendant’s choice must be 

particularly informed or voluntary, all depend on the right at stake.” 

United States v. Olano, 507 U.S. 725, 733 (1993). 

¶ 16 As to these factors, Tee cites no authority, nor are we aware of 

any in Colorado or from the Supreme Court, holding that juror 

conduct which could constitute predeliberation is unwaivable; 

identifying any unique procedure that must be followed to waive 

predeliberation; or requiring a defendant’s informed and voluntary 

decision to waive predeliberation. Nor does Tee’s supplemental brief 

argue any of these factors. 

¶ 17 Absent such authority, People v. Hambrick, 947 N.Y.S.2d 139, 

141 (N.Y. App. Div. 2012), is informative. There, defense counsel 

successfully moved for a mistrial because “several members of the 

jury had impermissibly discussed the specifics of the case and had 

potentially been biased by the predeliberation discussions.” 

Id. On appeal from conviction at retrial, the defendant raised 

double jeopardy. In holding the claim to be “without merit” because 

defense counsel had sought the mistrial, the court explained that 

“the defendant’s personal consent to a mistrial was not necessary, 
10 

and his counsel’s decision to move for a mistrial was binding on the 

defendant.” Id.2 

¶ 18 Tee should be equally bound by his counsel’s decision not to 

move for a mistrial. See People v. Greer, 197 N.E.2d 22, 24 (Ill. 

1964) (“The decision to abandon the motion for a mistrial and go 

ahead with the trial with the jurors that had already been chosen, 

with additional jurors to make a full panel, was voluntarily made by 

the defendant’s own attorney. The defendant is not now in a 

position to allege a failure on the part of the court to declare a 

mistrial.”). 

 

2 The federal circuits have adopted this view. See, e.g., United 

States v. Chapman, 593 F.3d 365, 369 (4th Cir. 2010) (“[D]ecisions 

regarding a mistrial are tactical decisions entrusted to the sound 

judgment of counsel, not the client.”); United States v. Burke, 257 

F.3d 1321, 1324 (11th Cir. 2001) (The decision not to request a 

mistrial is a “tactical decision entrusted to defense counsel, binding 

the defendant even when the defendant expressed a contrary wish 

to his lawyer.”); United States v. Washington, 198 F.3d 721, 723-24 

(8th Cir. 1999) (requesting a mistrial is a non-fundamental strategic 

decision); Watkins v. Kassulke, 90 F.3d 138, 143 (6th Cir. 1996) 

(Where “defense counsel consents as a matter of trial strategy to a 

mistrial, that consent binds the defendant . . . regardless of whether 

the defendant participates in the decision.”); Galowski v. Murphy, 

891 F.2d 629, 639 (7th Cir. 1989) (“The decision whether to move 

for a mistrial or instead to proceed to judgment with the expectation 

that the client will be acquitted is one of trial strategy.”). 
11 

B. Analysis 

¶ 19 The Attorney General argues that waiver applies because 

“[d]efense counsel did more than acquiesce to the trial court’s 

inquiries and resolution of the alleged predeliberation issue, he 

affirmatively approved the trial court’s line of questioning and 

actively participated in further instructing the jury to address his 

concerns.” According to the Attorney General, two lines of Colorado 

authority support this conclusion. 

¶ 20 First, the Attorney General asserts that when defense counsel 

is an “active participant” with the trial court in matters involving 

the jury, such action “amounts to a waiver.” Valley v. People, 165 

Colo. 555, 561, 441 P.2d 14, 16 (1968); see also People v. Tillery, 

231 P.3d 36, 44 (Colo. App. 2009) (holding that Tillery’s argument 

that the instruction was prejudicial because it referred to “the 

incident” was waived by his active participation in its wording), aff’d 

sub nom. People v. Simon, 266 P.3d 1099 (Colo. 2011).3 

 

3 Similar language has been employed when finding waiver in other 

contexts. See, e.g., People v. Mascarenas, 666 P.2d 101, 106 (Colo. 

1983) (“[T]he defendant effectively waived his rights to final 

disposition within the ninety-day statutory limitation period [under 

the Uniform Mandatory Disposition of Detainers Act] by his active 

participation in the trial setting delays and in his agreement to the 
12 

¶ 21 Second, the Attorney General relies on People v. Rediger, 2015 

COA 26, ¶ 59 (Rediger I), aff’d in part and rev’d in part, 2018 CO 32 

(Rediger II). There, defense counsel told the trial court that he had 

read the instructions and was “satisfied.” Rediger I, ¶ 47. On this 

basis, the division concluded that instructional error had been 

waived. 

¶ 22 But the supreme court reversed in part, holding that counsel’s 

colloquy with the court did not show either actual knowledge or 

intentional relinquishment of the defendant’s right to have the jury 

correctly instructed on the elements of the offense in the 

indictment. Rediger II, ¶ 45. Because the supreme court’s decision 

was announced after briefing had closed in this case, we requested 

supplemental briefs on waiver. Having reviewed that briefing, we 

draw two conclusions. First, Rediger II does not categorically 

preclude finding a waiver based on defense counsel’s active 

participation in trial court action that appellate counsel challenges 

on appeal, although it may sometimes require a closer look at 

 

appropriate dates.”); see also People v. Arledge, 938 P.2d 160, 166 

(Colo. 1997) (“[A]ctive participation by the defendant in such delay 

constitutes waiver” of the right to speedy trial.). 
13 

exactly what counsel did. Second, on the facts presented, 

Stackhouse is more illuminating than is Rediger II. 

¶ 23 Beginning with active participation, in Rediger II the trial court 

asked defense counsel a single question; counsel answered with a 

single sentence. By contrast, the record before us shows that the 

trial court and defense counsel were involved in an ongoing, 

interactive exchange. Thus, the record supports applying cases 

such as Valley, as the Attorney General asserts. 

¶ 24 Even so, after Rediger II, is the waiver analysis now more 

complex? True, the supreme court said nothing about this line of 

authority, probably because the record did not show active 

participation by defense counsel in the flawed jury instruction, 

which appeared to have been prepared by the prosecution. Rediger 

II, ¶ 8. Still, the Rediger II court’s emphasis on intentional

relinquishment of a known right requires further scrutiny. In other 

words, after Rediger II, would trial counsel’s active participation 

always prevent appellate counsel from identifying an error and 

arguing that it had somehow escaped trial counsel’s attention? 

¶ 25 Start with a known right. After all, only a right that is known 

could be intentionally relinquished. 
14 

¶ 26 The Rediger II court did not define “known.” Defense counsel 

acknowledged having read the instructions. So, what more than 

knowledge presumed from the circumstances must be present 

before a right is known? Comparing waiver to invited error suggests 

one answer. 

¶ 27 Like waiver, invited error bars relief on direct appeal. See

People v. Novotny, 2014 CO 18, ¶ 47 (noting “the specter of invited 

error, which precludes appellate review”). However, “although 

invited error in most cases will result from defense counsel’s 

inadvertence or negligence, it is the defendant who must bear the 

stigma of a conviction and the burden of prison time; accordingly, 

application of the plain error doctrine, rather than the invited error 

doctrine,” is appropriate. People v. Stewart, 55 P.3d 107, 119 (Colo. 

2002). See also People v. Gross, 2012 CO 60M, ¶ 2 (“The attorney 

incompetence exception does not apply to deliberate, strategic acts 

of defense counsel but rather to inadvertent errors or oversights.”). 

As the division explained in People v. Perez-Rodriguez, 2017 COA 

77, ¶ 27, “[t]o determine whether the statement ‘no objection’ or 

even silence should be characterized as either deliberate or 
15 

inadvertent, it is necessary to consider the objection or silence in 

the context of its circumstances.” 

¶ 28 Although Rediger II did not cite Stackhouse, looking at 

Stackhouse through the prism of inadvertence offers a path forward. 

There, the trial court closed the courtroom during a portion of voir 

dire. Of course, defense counsel was present. Counsel failed to 

object and voir dire continued. Still, the court found a waiver. 

Stackhouse, ¶ 17. 

¶ 29 A principled line between these cases would be that in Rediger 

II, merely reading the instructions does not compel the conclusion 

that counsel recognized prejudice to the defendant’s right to be tried 

on the statutory elements under which he had been charged 

because the elements on the instructions and those on the 

information came from different subsections of the same statute. 

The explanation could have been inadvertence, as the difference in 

elements was not striking. Contrasting Stackhouse, counsel’s mere 

presence when the trial court directed that the courtroom be closed 

permits no reasoned doubt that counsel recognized the defendant’s 

public trial right was being impaired. See Webster’s Third New 
16 

International Dictionary 1252 (2002) (defining “know” as “to 

recognize the quality of: see clearly the character of”). 

¶ 30 After drawing this line here, the record compels the conclusion 

that because defense counsel recognized the predeliberation 

concern, this case falls on the Stackhouse side of that line. The 

trial court asked the victim advocate, “Do you think [the two jurors] 

were discussing the ultimate outcome of the case?” After the 

advocate answered, defense counsel asked her, “[O]ne thing that I 

would be concerned about . . . is, did you think from what you 

heard from the jurors that there was a decision on their part that 

they had heard enough?” The advocate answered, “I really don’t. I 

honestly and truly don’t.” Then defense counsel said, “Nothing 

else.” 

¶ 31 In Stackhouse, ¶ 5, our supreme court affirmed “the court of 

appeals’ holding that Stackhouse waived his right to public trial 

during voir dire by not objecting to the trial court’s known closure.” 

(Emphasis added.) Likewise in this case, everyone involved 

recognized the specter of predeliberation. And just as Stackhouse, 

id. at ¶ 16, presumed counsel’s knowledge of the proper procedure 

to address a courtroom closure, we presume counsel’s awareness 
17 

that juror predeliberation would raise a constitutional concern. 

People v. Flockhart, 2013 CO 42, ¶ 19 (An “erroneous 

pre-deliberation instruction may prejudice a defendant’s 

constitutional right to a fair trial.”). 

¶ 32 Then consider intentional relinquishment. 

¶ 33 After the trial court had questioned the first of the two jurors, 

defense counsel told the court: “I didn’t hear anything at this point 

that would make me want to move for a mistrial based on the fact 

that the jurors looked engaged in a deliberate guilt or not guilt 

process to me.” Thus, counsel also recognized the nexus between 

the disease — “[pre]deliberate guilt or not guilt” — and the possible 

cure — “a mistrial.” 

¶ 34 For the second juror, defense counsel asked the court “if we 

have questions of this juror, can we approach and tell you that?” 

The court said yes. And after the court questioned the second 

juror, counsel told the court “for the record . . . I would have said or 

asked questions very much along the same lines . . . .” Tee does not 

assert, nor does our review of the record disclose, anything in the 

second juror’s answers that should have changed counsel’s earlier 

mistrial calculus. To the contrary, the second juror assured the 
18 

trial court that she had not discussed Tee’s guilt, that she 

understood the relative burdens for the prosecution and the 

defense, and that she had not reached “a final conclusion in this 

matter.” Thus, even more so than in Stackhouse, ¶ 16, allowing Tee 

to “seek invalidation of an adverse verdict” on which these two 

jurors deliberated “would encourage gamesmanship.” 

¶ 35 Finally, counsel asked the court to read the jury instruction on 

burden of proof. The court responded that it “would rather read it 

to the whole jury.” Counsel clarified “[t]hat’s what I meant.” After 

the jury had been reconvened, the court did so. Counsel sought no 

further relief. 

¶ 36 The totality of defense counsel’s statements stand in marked 

contrast to our supreme court’s observation in Rediger II, ¶ 42, that 

“[t]he record before us reveals no evidence, either express or 

implied, that Rediger[’s counsel] 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,” 

nor that “Rediger knew of the discrepancy between the People’s 

tendered jury instructions and the charging document,” id. at ¶ 43. 
19 

¶ 37 Opposite to what occurred in Rediger II, here the dialogue 

between defense counsel and the trial court over this issue went far 

beyond a “rote statement that [counsel] is not objecting . . . .” 

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.”), cited with 

approval in Rediger II, ¶ 45; see also 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” of the issue raised on appeal), cited with approval 

in Rediger II, ¶ 42. 

¶ 38 Despite all this, Tee’s supplemental brief asserts that “[t]here 

would be no reason, had counsel been aware of the error, not to ask 

for a mistrial or to ask the court to address the fact the jurors were 

predeliberating.” This assertion misses the mark in two ways. 

¶ 39 First, it assumes that inquiry into counsel’s strategic purpose 

plays any role in evaluating an affirmative waiver. But Tee cites no 

authority, nor are we aware of any in Colorado, tempering the effect 

of a specific, affirmative waiver based on possible lack of a strategic 

purpose. As the division explained in Perez-Rodriguez, ¶ 25, 
20 

“[i]nvited error is sometimes referred to as a strategic error. But 

this does not mean that the ‘strategy’ must be competent or well 

planned. It simply means that the action that results in invited 

error must be deliberate rather than inadvertent.” 

¶ 40 True, in Stackhouse, ¶ 15, our supreme court observed, “there 

are sound strategic reasons to waive the right to a public trial, as is 

particularly apparent in the context of Stackhouse’s jury selection 

for his trial on charges of sexual assault on a minor.” But 

Stackhouse involved an implied waiver based on counsel’s silence; 

Tee’s counsel expressly renounced a mistrial. 

¶ 41 Second and more importantly, this assertion ignores the 

possibility that counsel’s strategic purpose was to preserve his 

credibility by choosing to disclaim an issue that was a sure loser. 

See People v. McCoy, 2015 COA 76M, ¶ 99 (Webb, J., specially 

concurring) (“[C]ounsel may have decided that an unsupported 

statutory sufficiency argument would probably be unsuccessful and 

raising it would undercut counsel’s credibility.”) (cert. granted in 

part Oct. 3, 2016). Because the trial court developed the issue, the 
21 

court would have been entitled to expect a candid response.4 

“Forfeiture takes place when counsel or a defendant negligently 

bypasses a valid argument.” United States v. Anderson, 604 F.3d 

997, 1001 (7th Cir. 2010) (emphasis added) (cited with approval in 

Perez-Rodriguez, ¶ 27). 

¶ 42 In sum, and notwithstanding the “presumption against

waiver,” Rediger II, ¶ 46 (quoting People v. Curtis, 681 P.2d 504, 514 

(Colo. 1984)), defense counsel’s affirmative statements constitute a 

waiver. So, as to Tee’s contention that predeliberation constituted 

structural error or a due process violation entitling him to a new 

trial, we have nothing to review. See United States v. Montoya, 782 

F.2d 1554, 1556 (11th Cir. 1986) (stating that, absent exceptional 

circumstances, defendant’s withdrawal of motion for mistrial left 

“nothing for this court to review”). 

III. The Evidence Was Insufficient as to One Count of Attempting to 

Influence a Public Servant 

¶ 43 Tee was convicted of two counts of attempting to influence a 

public servant based on evidence that he made allegedly false 

reports of car accidents. As to the first report, he provided 

 

4 Of course, whether counsel had such a purpose could be explored 

under Crim. P. 35(c) as an indication of ineffectiveness. 
22 

information in person to a police officer who created a report based 

on what Tee had told him; for the other report, he filled in an 

accident report form on a computer terminal at a kiosk in the police 

department. We conclude that the evidence was sufficient to 

support the conviction for attempting to influence a public servant 

as to the police officer, but not the conviction based on the form 

filled in at the kiosk. 

A. Standard of Review and Law 

¶ 44 A challenge to the sufficiency of the evidence requires an 

appellate court “to determine 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 person that the defendant is 

guilty of the crime charged beyond a reasonable doubt.” People v. 

Moore, 226 P.3d 1076, 1088 (Colo. App. 2009). The prosecution 

must be given the benefit of every reasonable inference that might 

fairly be drawn from the evidence. People v. Carrasco, 85 P.3d 580, 

582-83 (Colo. App. 2003). A conviction will not be set aside merely 

because the jury could have reached a different conclusion based 

on the evidence. People v. Fuller, 791 P.2d 702, 706 (Colo. 1990). 
23 

However, if the appellate court concludes that evidence was 

insufficient as to a count, then the judgment of conviction must be 

reversed and that count cannot be retried. See People v. Lybarger, 

700 P.2d 910, 916 (Colo. 1985) (“[I]f the evidence is insufficient to 

support the conviction, the retrial of the defendant on the same 

charge would constitute a violation of the constitutional guarantee 

against double jeopardy.”). 

¶ 45 Under section 18-8-306, C.R.S. 2017, 

[a]ny 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. 

(Emphasis added.) In supplemental briefs on this statute, the 

parties agreed that it is a specific intent crime. So do we. 

¶ 46 Section 18-8-306 is “aimed at attempts to influence public 

servants in their official capacities to improperly alter or affect the 

performance of their official duties.” People v. Beck, 187 P.3d 1125, 

1128 (Colo. App. 2008), overruled on other grounds by People v. 

Molina, 2017 CO 7. It “encompasses any employee of the 
24 

government and even includes non-employees performing 

government functions.” People v. Sena, 2016 COA 161, ¶ 12. 

Section 18-8-306 “requires the prosecution to prove that the 

defendant acted with the specific intent to influence a public 

servant[].” People v. Janousek, 871 P.2d 1189, 1196 (Colo. 1994). 

But “whether the public servant was actually influenced by the 

defendant’s attempts is not an element of the crime.” Sena, ¶ 16. 

B. Analysis 

1. Police Officer 

¶ 47 Tee contacted the Aurora Police Department, claiming that his 

car had been struck in a hit-and-run accident. The responding 

officer testified that he met with Tee. Then, based on the 

information Tee had provided, the officer prepared and filed an 

accident report. That report was later offered into evidence as part 

of Farmers Insurance Company’s file on Tee’s insurance claim. 

¶ 48 Tee argues that the evidence was insufficient to show he 

attempted to influence the police officer because “[t]he officer 

testified he does not do anything or make any decisions.” But the 

record shows that Tee intended “to alter or affect the public 

servant’s . . . action concerning any matter which is to be 
25 

considered or performed by him.” § 18-8-306. Specifically, the 

responding officer testified that writing police reports is an official 

function that he performs. Then he described his actions based on 

Tee having reported the accident to him: 

Q: So based on what he told you, you prepared 

your report? 

A: I did. 

Q: Did you file this report? 

A: I did. 

See, e.g., People v. Van De Weghe, 2012 COA 204 (holding that the 

defendant attempted to influence a public servant when he provided 

false information to a police officer during a traffic stop); see also 

Sena, ¶ 16 (“For the People to prove that defendant intended to alter 

[the officer’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” true information.). 

¶ 49 Viewing this evidence in a light favorable to the prosecution, 

as we must, it supports the conviction for attempting to influence a 

public servant beyond a reasonable doubt. 
26 

2. Kiosk Report 

¶ 50 Tee argues that the evidence does not show his act “of filing an 

online accident report at . . . [the] kiosk was done with the specific 

intent to alter or affect a public servant’s decision,” as required by 

section 18-8-306. We agree. 

¶ 51 The prosecution called a front desk technician at the police 

department to testify about the accident report that Tee had filled 

in. She explained that for such an online accident report, which 

includes both forms filled in on a home computer and those 

completed on a terminal at a kiosk: 

 “The citizen would come in, we would direct them to the kiosk 

that we have in the lobby to fill out an accident report. And if 

they had any questions, then we would go out and assist them 

in filling out the report.” 

 When the citizen was done filling out the report, he or she 

“would come back up to the front desk and they would get 

their case number, and then that would be all that they 

needed to do.” 

She also testified about performing her duties: 
27 

 “Once the citizen enters the report, we as lead technicians 

later — we go in and review the report to make sure that the 

location is in the city ordinance . . . and that some of the 

information is filled out.” 

 Citizens “can come up to the front desk window if they have 

some kind of difficulty working on the computer.” 

 “Usually we’ll go into the system if [the citizen] ask[s] for [the 

report] for their insurance. We’ll print it out for them.” 

She explained that when using this process, 

[m]ost people think that when they come in to 

do an accident report they’re going to talk to 

me to do the accident report, not to be referred 

to a kiosk. So that’s — we give people the 

option. They can do either or. Or they can go 

home and they can do it on their own 

computer if they’re more comfortable with that. 

Finally, she added that after the report is entered, “[t]he information 

gets forwarded to another computer system. So it’s kind of like the 

online reporting system is its own program itself. And once it’s 

reviewed, then there’s a bridge that goes to another system.” 

¶ 52 But she did not recall anything about Tee — such as whether 

he “attempted to talk” to her or gave her “information about . . . the 

alleged accident.” Nor did she testify that he had caused the 
28 

system to print out a report. In anticipation of testifying, she had 

printed out the accident report that the prosecution introduced into 

evidence from the police department’s online reporting system. 

¶ 53 According to the Attorney General, this testimony sufficed to 

prove that Tee “intended his representations about a supposed 

accident at the . . . city kiosk to influence the public servant on site 

. . . to provide him with an official accident report.” True, the 

technician testified that she would have “done something different if 

[she] knew the person wasn’t giving accurate information in that 

report.” But this testimony fails to show that Tee had any 

interaction with the technician, much less that he knew the 

technician needed to approve the report, after he filled in the form 

using the terminal at the kiosk. Simply put, unless he knew of the 

technician’s involvement, he could not have intended to influence 

her actions. See People v. Prante, 177 Colo. 243, 247, 493 P.2d 

1083, 1084 (1972) (stating that assault on a police officer requires 

proof of intent to cause bodily injury and knowledge that the victim 

is an officer). 

¶ 54 Colorado cases addressing sufficiency of the evidence under 

section 18-8-306 generally show a link between the defendants and 
29 

the public servants whom they intended to influence. See, e.g.,

Beck, 187 P.3d at 1127 (the defendant provided false identifying 

information to a police officer); see also People v. Taylor, 159 P.3d 

730, 734 (Colo. App. 2006) (“[The] defendant caused a false written 

instrument to be delivered to a public servant with the intent of 

altering the public servant’s decision relating to the termination of 

defendant’s liberty interest.”), abrogated on other grounds by People 

v. Fortson, 2018 COA 46; People v. Schupper, 140 P.3d 293, 298-99 

(Colo. App. 2006) (The defendant “used ‘deceit’ in the form of false 

representations on his application in order to influence a public 

servant with the intent to alter or affect his or her decision to 

appoint counsel.”). 

¶ 55 Still, in People v. Montante, 2015 COA 40, ¶ 2, on which the 

Attorney General primarily relies, that link was less clear. There, 

the defendant, a physician, was convicted of attempting to influence 

a public servant. The evidence showed that he had written false 

information on a physician certification form, which he then gave to 

an undercover officer masquerading as a patient who supposedly 

needed the certification to obtain a medical marijuana identification 
30 

card from the Colorado Department of Public Health and 

Environment. 

¶ 56 The division explained that the physician certification “is part 

of the application that an applicant must submit to the Colorado 

Department of Public Health and Environment.” Id. And these 

alleged false statements “constituted an attempt to influence, by 

means of deceit, a public official at the Department, with the intent 

thereby to affect the decision to issue [the patient] a medical 

marijuana identification card.” Id. at ¶ 5. 

¶ 57 Although the division did not address sufficiency, it analyzed 

whether section 18-8-306 provided sufficient notice to the 

physician. It concluded that the defendant “was on fair notice that 

the making of false representations with the expectation that the 

Physician Certification would be submitted to the Department 

would constitute the offense of attempt to influence a public 

servant.” Id. at ¶ 46. 

¶ 58 This conclusion survives scrutiny because article XVIII, 

section 14(3)(c) of the Colorado Constitution, provides: 

Within thirty days of receiving the information 

referred to in subparagraphs (3)(b)(I)-(IV), the 

state health agency shall verify medical 
31 

information contained in the patient’s written 

documentation. The agency shall notify the 

applicant that his or her application for a 

registry identification card has been denied if 

the agency’s review of such documentation 

discloses that: the information required 

pursuant to paragraph (3)(b) of this section 

has not been provided or has been falsified; 

the documentation fails to state that the 

patient has a debilitating medical condition 

specified in this section or by state health 

agency rule; or the physician does not have a 

license to practice medicine issued by the state 

of Colorado. Otherwise, not more than five 

days after verifying such information, the state 

health agency shall issue one serially 

numbered registry identification card to the 

patient . . . . 

(Emphasis added.) Thus, a fair inference could be made that the 

physician knew his false statements written on the certification 

would influence a public servant’s decision to issue a medical 

marijuana identification card. See Sena, ¶ 16 (“Intent can rarely be 

proven other than through circumstantial or indirect evidence.”);

People v. Hayward, 55 P.3d 803, 806 (Colo. App. 2002) (“[E]very 

person is generally presumed to know the law . . . .”). 

¶ 59 By contrast, in the case before us, the prosecution did not 

present any evidence showing that Tee knew the technician — or 

anyone else, for that matter — would screen the information that he 
32 

input at the kiosk and then approve the report. Nor does the 

Attorney General direct us to any statute describing human 

involvement in this process. And unlike the hard copy physician 

certification and registry card at issue in Montante, filling in a form 

on a computer terminal suggests an entirely automated process. 

Cf. People v. Rice, 198 P.3d 1241, 1244 (Colo. App. 2008) (“When 

the computer system determines a claimant is eligible for 

unemployment benefits, a computer prints a check that is 

automatically sent to the claimant. Typically, an eligible claimant 

completes a claim and receives a check without interacting with a 

person.”). 

¶ 60 At most, the record shows that Tee filled in false information 

on a report form using the terminal at the police department kiosk. 

Mere false reporting, however, while prohibited by section 

18-8-111(1)(d), C.R.S. 2017, “is not a specific instance of attempt to 

influence a public servant.” People v. Blue, 253 P.3d 1273, 1278 

(Colo. App. 2011). Indeed, “[t]he attempted influence offense can 

occur without any false reporting at all.” Id. 

¶ 61 In the end — even given the high standard for sufficiency of 

the evidence claims — we cannot say that the evidence was 
33 

sufficient to prove beyond a reasonable doubt Tee’s second 

conviction for attempt to influence a public servant. 

IV. The Mittimus Must Be Corrected 

¶ 62 The Attorney General concedes, and we agree, that the trial 

court violated Tee’s double jeopardy rights when it orally 

announced sentences totaling twelve years, but then the mittimus 

showed a total sentence of eighteen years. As Tee correctly points 

out, some of his concurrent sentences were improperly changed to 

consecutive sentences; and the mittimus listed the first sentence as 

four years, rather than the three-year term announced by the trial 

court. See People v. Sandoval, 974 P.2d 1012, 1015 (Colo. App. 

1998) (“Although a court may correct an illegal sentence without 

implicating double jeopardy concerns, it may not increase a lawful 

sentence after the defendant has begun serving it.”) (citation 

omitted). 

¶ 63 Everyone also agrees that the mittimus incorrectly shows a 

conviction on Count 5, which the trial court dismissed on Tee’s 

motion for judgment of acquittal. 

¶ 64 Thus, we remand for the trial court to correct the mittimus to 

reflect the sentence announced, to remove the reference to 
34 

conviction on Count 5, and to vacate the sentence imposed on 

Count 24. 

V. Conclusion 

¶ 65 The judgment is vacated as to Count 24 and otherwise 

affirmed. The case is remanded with directions to correct the 

mittimus. 

JUDGE RICHMAN and JUDGE FOX concur.