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. 

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. 
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 

¶ 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. 
2 

¶ 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.” 
3 

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 
4 

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. 
5 

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). 
6 

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.”). 
7 

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 factfinder. 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 
8 

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 
9 

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 
10 

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 
11 

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 
12 

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. 
13 

¶ 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). 
14 

¶ 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: 
15 

[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

 

6 Notably, perhaps, the court did not decide the case based on 

whether the video constituted “physical evidence.” 
16 

¶ 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 
17 

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 
18 

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.