22CA0344 Peo v Clark 11-21-2024
COLORADO COURT OF APPEALS
Court of Appeals No. 22CA0344 La Plata County District Court No. 20CR147 Honorable Todd P. Norvell, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Christopher Joe Clark,
Defendant-Appellant.
JUDGMENT AFFIRMED
Division II Opinion by JUDGE FOX Johnson and Schock, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced November 21, 2024
Philip J. Weiser, Attorney General, Brock J. Swanson, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Patrick R. Henson, Alternate Defense Counsel, Denver, Colorado, for Defendant-Appellant ¶1 Defendant, Christopher Joe Clark, appeals his conviction and
sentence entered on a jury verdict finding him guilty of tampering
with a witness or victim. We affirm.
I. Background
¶2 Based on Clark’s alleged victimization of J.Q., he was charged
with sexual assault, second degree assault, third degree assault,
felony menacing, tampering with a witness or victim, obstruction of
telephone service, obstruction of a peace officer, violation of bail
bond conditions, three counts of violation of a protection order, and
eight habitual counts.
¶3 On the second day of trial, Clark pleaded guilty to obstruction
of a peace officer. After the prosecution rested, Clark moved for
judgment of acquittal on all remaining counts. The trial court
granted the motion on the obstruction of telephone service charge
but denied it as to all other counts.
¶4 A jury acquitted Clark on the sexual assault, second degree
assault, third degree assault, and felony menacing counts.
However, the jury convicted Clark on the violation of bail bond
conditions count, the tampering with a witness or victim count, and
1 three counts of violation of a protection order.1 The jury also found
that the violation of a protection order and tampering counts
included acts of domestic violence.
¶5 After the trial, Clark filed a written motion for judgment of
acquittal on the tampering count, which the trial court denied.
¶6 Before sentencing, Clark filed a motion for a proportionality
review. After the prosecution responded, the trial court conducted
an abbreviated proportionality review and denied the motion.
¶7 Clark was adjudicated a habitual criminal based on four prior
felonies: first degree criminal trespass, vehicular alluding,
attempted sexual assault on a child, and failure to register as a sex
offender. The trial court sentenced him in accordance with the
habitual criminal statute to twenty-four years in the custody of the
Department of Corrections (DOC) on the tampering count, along
with concurrent jail sentences on the remaining counts.
II. Sufficiency of the Evidence
¶8 Clark first contends that the trial court erred by denying his
motions for judgment of acquittal on the tampering with a witness
1 Clark only appeals the tampering with a witness or victim
conviction and his sentence.
2 or victim count. Specifically, he claims that there was insufficient
evidence to prove that he intentionally attempted to induce a
witness or victim to testify falsely or unlawfully withhold testimony.
A. Standard of Review and Applicable Law
¶9 In assessing the sufficiency of the evidence, we review the
record de novo to determine whether the evidence was “sufficient in
both quantity and quality” to sustain a conviction. McCoy v. People,
2019 CO 44, ¶ 63. In doing so, we view the evidence as a whole
and in the light most favorable to the prosecution to determine if
the evidence is “substantial and sufficient to support a conclusion
by a reasonable mind that the defendant is guilty of the charge
beyond a reasonable doubt.” McDonald v. People, 2021 CO 64, ¶ 64
(citation omitted). In applying this test, we give the prosecution the
benefit of every reasonable inference that can be drawn from the
evidence. Id. That “the evidence was disputed . . . and that
reasonable alternative inferences were possible” does not render the
evidence insufficient. People v. Donald, 2020 CO 24, ¶ 41.
¶ 10 As relevant here,
[a] person commits tampering with a witness or victim if he intentionally attempts without bribery or threats to induce a witness or victim
3 or a person he believes is to be called to testify as a witness or victim in any official proceeding or who may be called to testify as a witness to or victim of any crime to . . . [t]estify falsely or unlawfully withhold any testimony.
§ 18-8-707(1)(a), C.R.S. 2024.
B. Additional Facts
¶ 11 The tampering with a witness or victim charge stemmed from
a letter that Clark sent to the victim, J.Q. (also known as M.), while
the charges in this case were pending and a protection order was in
place. The prosecution submitted the letter at trial, which was
admitted into evidence without objection and read aloud to the jury.
¶ 12 In the letter, Clark flattered and complimented J.Q.;
apologized for past behavior; proclaimed his love for her; indicated
that he is protective of her; said that he was trying to get them into
stable housing; expressed his desire for a romantic relationship
with her; promised safety; and asked her for help communicating.
He also stated the following:
I know I’m real aggressive and intimidating, especially with a shaved head. It makes me look mean. But, no matter what problems you and I have, you are safe to talk to me. We can talk through our problems respectfully.
4 I want us to establish a safe word. It’s ‘baby blue,’ for calm/cool. When I’m making you feel scared or unsafe, I want you to say “baby blue.” I’ll take a breath, take a seat and give you a little space so you feel safe.
....
“[M.], I assure you I didn’t do what I’m being accused of. I’ve been beating my head against the wall to try to figure out why [J.Q.] went to such extremes. I just tried to provide her with a place to stay. But she and I got into an argument and I did a good job at scaring her. The argument was heated and you know how intimidating I can be. I honestly don’t realize that. I don’t mean to be.
[J.Q.] is tiny — petite, and I’m much bigger than she is. She’s about 5’ 4”-5’ 5”. But she has also been beat up and raped by guys on the streets. I found out by my investigator that her ex “Brett” has done a lot of abusive things to her. I don’t know what all is true but it seems that some of the allegations she’s made against me actually did happen at some point by Brett.
I don’t know why [J.Q.] would falsely accuse me to such degree. She knows what really happened. I just hope she comes forward with the truth. My attorney told me that if [J.] were to come to my hearing in May and tell the truth, the judge would drop all my charges.
5 I told my attorney that [J.Q.] is probably going to either not show up or she’s going to show up and tell the truth. She’s scared of me. She has no reason to be. I’m not a threat.
Especially [J.Q.], she is vulnerable. I just don’t know what to do. I can’t accept that she made it all up out of hate or spite. She knows what happened. There’s a video from Urgent Care that shows me snatch a lotto ticket out of her hand and rip it up. She starts hitting me in the back of the head and manages to push me down. I got up and smacked her in the lower back with an open hand as she started to run away. But everything else is not true. Just because she’s a girl doesn’t mean I can’t defend myself.
She must hate me. The only way I’ll turn my back on her is if she continues to lie and tries to help DA on the false charges. If she’s honest, I’ll own up to what I did do in open court right then and there.
¶ 13 The extent of J.Q.’s testimony regarding the letter was that she
did not read the letter but experienced “terror” when she received it.
¶ 14 In closing argument, the prosecutor pointed out the
statements in which Clark told J.Q. to tell the “truth” as support for
Clark urging J.Q. to testify falsely:
He’s telling her to tell the truth but, at the same time, that truth that he’s telling her is not true. He’s making up video. He’s telling her things. He’s apologizing. So when he says “Come to court and tell the truth,” he’s really
6 doing the exact opposite. He’s telling her to testify falsely.
And as support for Clark inducing J.Q. to unlawfully withhold
testimony, the prosecutor directed the jury’s attention to Clark’s
statement, “I told my attorney that [J.Q.] is probably going to either
not show up or she’s going to show up and tell the truth.”
C. Analysis
¶ 15 Clark first argues that the statements in the letter were
insufficient to prove that he induced J.Q. to testify falsely because
Clark was actually asking J.Q. to tell the truth. Therefore, Clark
asserts, in order to convict him based on his requests for J.Q. to tell
the truth, the jury had to speculate and guess that he was in fact
asking J.Q. to lie. See People v. Sprouse, 983 P.2d 771, 778 (Colo.
1999) (“[V]erdicts in criminal cases may not be based on guessing,
speculation, or conjecture.”). He further asserts that, in order to
construe Clark’s statements as asking J.Q. to testify falsely, the
jury had to speculate that Clark’s “truth” was false and J.Q.’s
“truth” was correct.
¶ 16 However, we see what Clark calls inappropriate speculations
as reasonable inferences that the jury could have made based on
7 the contents of the letter. A large portion of the letter is dedicated
to professing Clark’s love for J.Q., which the jury could have
reasonably inferred as Clark’s attempt to manipulate J.Q. into
complying with his request to testify falsely. The jury also could
have inferred that the “truth” Clark was asking J.Q. to testify about
was a recantation of her story and a proclamation that Clark did
not do any of the things he was alleged to have done. Moreover, the
jury could have inferred that the “truth” Clark was asking J.Q. to
tell was the story that “Brett” committed the offenses rather than
Clark. What the “truth” was that Clark asked J.Q. to put forward
was for the jury to decide, and we “may not serve as a thirteenth
juror and consider whether [we] might have reached a different
conclusion than the jury.” People v. Harrison, 2020 CO 57, ¶ 33.
¶ 17 Second, Clark argues that the evidence was insufficient to
prove that he induced J.Q. to unlawfully withhold testimony
because by saying, “I told my attorney that [J.Q.] is probably going
to either not show up or she’s going to show up and tell the truth,”
Clark was merely predicting that J.Q. would not show up for court.
While it is true that J.Q. failed to appear for several pretrial
8 hearings even when subpoenaed to do so, a jury still could have
inferred that Clark was asking J.Q. not to appear at trial to testify.
¶ 18 People v. Nozolino, 2014 COA 95, on which Clark relies, is
distinguishable. In that case, after learning that the police were
interviewing Nozolino’s family members regarding alleged crimes he
had committed, Nozolino emailed his mother and brother
recommending that they not cooperate with the police. Id. at ¶¶ 4,
11. Nozolino was indicted and later convicted on multiple counts of
witness tampering. Id. at ¶ 5. On appeal, Nozolino argued that
there was insufficient evidence to support the witness tampering
convictions related to his mother and brother. Id. at ¶ 7. The
division agreed with Nozolino, concluding that the emails did not
advise or advocate unlawful withholding of testimony. Id. at ¶ 12.
Rather, the division reasoned, “an individual may lawfully refuse to
speak with the police, and it is not unlawful for a citizen to withhold
cooperation during a consensual encounter with law enforcement.”
Id. Contrary to Nozolino, here Clark’s statements in the letter urged
J.Q. not to testify at court proceedings; they did not recommend
that she not cooperate with the police.
9 ¶ 19 For these reasons, we conclude that reasonable inferences
from Clark’s letter to J.Q. supported the requirement that Clark
attempted to induce J.Q. to testify falsely and unlawfully withhold
testimony. Accordingly, there was sufficient evidence to support
Clark’s tampering with a witness or victim conviction. See People v.
Cunefare, 102 P.3d 302, 307 (Colo. 2004).
III. Constructive Amendment
¶ 20 Clark also contends for the first time on appeal that the
prosecution’s opening and closing arguments constructively
amended the tampering with a witness or victim charge. He asserts
that the prosecution created the false implication that the
statements in the letter constituted a threat to J.Q., but threatening
a witness is an element of retaliation against a witness or victim
and is not a means by which a person can commit tampering with a
witness or victim. We discern no error.
A. Preservation, Applicable Law, and Standard of Review
¶ 21 Clark did not preserve this issue for appeal. We therefore
review for plain error. Hagos v. People, 2012 CO 63, ¶ 14; Bock v.
People, 2024 CO 61, ¶¶ 14-23 (constructive amendments do not
constitute structural error, and unpreserved arguments regarding
10 them are reviewed for plain error). Plain error is obvious and
substantial, and we reverse only if the error so undermined the
fundamental fairness of the trial so as to cast serious doubt on the
reliability of the judgment of conviction. Hagos, ¶ 14.
¶ 22 A charging document “must be definite enough to give a
defendant sufficient notice of the crime alleged to prepare a defense,
and must recite the essential facts of the crime to protect him from
further prosecution for the same offense.” People v. Pahl, 169 P.3d
169, 177 (Colo. App. 2006). One type of variance between the
charge contained in the charging document and the charge for
which a defendant is convicted is a constructive amendment. “A
constructive amendment occurs when a jury instruction ‘changes
an essential element of the charged offense and thereby alters the
substance of the charging instrument.’” Bock, ¶ 14 (quoting People
v. Rediger, 2018 CO 32, ¶ 48).
¶ 23 We review de novo whether an impermissible variance
occurred, as it is a question of law. People v. Counterman, 2021
COA 97, ¶ 96, vacated and remanded on other grounds sub nom.,
Counterman v. Colorado, 600 U.S. 66 (2023).
11 B. Analysis
¶ 24 For the tampering with a witness or victim count, the
information alleged that Clark “unlawfully, feloniously, and
intentionally attempted, without bribery or threats, to induce [J.Q.],
a witness, a victim, or a person the defendant believed might be
called to testify as a witness or victim of any crime to testify falsely
or unlawfully withhold any testimony, in violation of section
18-8-707, C.R.S.”
¶ 25 In conformity with the pattern jury instructions as they
applied to the tampering statute, the jury was instructed on the
elements of tampering with a witness or victim. See COLJI-Crim.
8-7:10 (2021).
¶ 26 Clark does not argue that the jury instruction changed an
essential element of the charged offense, thereby altering the
substance of the charging document. Rather, he asserts that the
prosecutor made comments during opening statement and closing
argument that amended the tampering charge. This is not a valid
claim for a constructive amendment. Nor does Clark submit any
authority for the proposition that a prosecutor’s statements can
constructively amend a charge.
12 ¶ 27 Even so, the pattern jury instruction did not alter an element
of the charged offense of tampering with a witness or victim.
Accordingly, we conclude that no constructive amendment
occurred.
¶ 28 For the first time in the reply brief, Clark also argues that a
simple variance occurred. See People v. Smith, 2018 CO 33, ¶ 25 (A
simple variance occurs “when the evidence presented at trial proves
facts materially different from those alleged in the charging
document.”). However, we will not address arguments made for the
first time in a reply brief. See People v. Czemerynski, 786 P.2d
1100, 1107 (Colo. 1990), abrogated on other grounds by Rojas v.
People, 2022 CO 8.
IV. Proportionality Review
¶ 29 Finally, Clark contends that his twenty-four-year sentence for
tampering with a witness or victim raises an inference of gross
disproportionality necessitating an extended proportionality review.
We disagree.
¶ 30 We review the proportionality of a sentence de novo.
Wells-Yates v. People, 2019 CO 90M, ¶ 35.
13 ¶ 31 The Eighth Amendment prohibits sentences that are grossly
disproportionate to the crime committed. See id. at ¶ 5. In
analyzing that, courts engage in an objective, two-step approach for
reviewing whether a sentence is grossly disproportionate. See id. at
¶ 7. Courts first conduct an abbreviated proportionality review and
then, if necessary, an extended proportionality review. Id. at ¶ 15.
¶ 32 In conducting an abbreviated proportionality review of a
habitual criminal sentence, we must (1) assess “the gravity or
seriousness of all the offenses in question — the triggering offense
and the predicate offenses,” and (2) consider “the harshness of the
sentence imposed on the triggering offense.” Id. at ¶ 23. We
determine whether the triggering offense and the predicate offenses,
in combination, “are so lacking in gravity or seriousness so as to
suggest that the sentence is unconstitutionally disproportionate to
the crime, taking into account the defendant’s eligibility for parole.”
Id. If the abbreviated proportionality review reveals no inference of
gross disproportionality, no further analysis is required. See id. at
¶ 15.
¶ 33 Only when a sentence yields an inference of gross
disproportionality does a court conduct an extended proportionality
14 review, comparing the defendant’s sentence to (1) sentences for
other crimes in the same jurisdiction and (2) sentences for the same
crime in other jurisdictions. Id. at ¶¶ 15-17.
B. Analysis
1. Gravity or Seriousness
¶ 34 The gravity or seriousness of an offense requires considering
the harm caused or threatened to the victim or society and the
culpability of the offender. Id. at ¶ 12. Relevant factors in
determining the harm to the victim or society include the
magnitude of the offense; whether the offense involved violence;
“whether the crime is a lesser-included offense or the
greater-inclusive offense; whether the crime involves a completed
act or an attempt to commit an act; and whether the defendant was
a principal or an accessory after the fact in the criminal episode.”
Id.; People v. Mershon, 874 P.2d 1025, 1032 (Colo. 1994), abrogated
on other grounds by Melton v. People, 2019 CO 89. In terms of the
defendant’s culpability, courts should consider motive and “whether
the defendant’s acts were negligent, reckless, knowing, intentional,
or malicious.” Wells-Yates, ¶ 12.
15 a. Triggering Offense
¶ 35 Viewing the evidence in the light most favorable to the
prosecution, as we must, shows that the letter Clark wrote to J.Q.,
the receipt of which caused her to feel “terror,” was an intentional
attempt to induce her to testify falsely or to withhold testimony.
Moreover, the jury found that the tampering count involved an act
of domestic violence. And in the course of committing the witness
tampering offense, Clark was simultaneously violating protection
orders that prohibited him from contacting J.Q. Finally, Clark’s
likely motive in committing witness tampering was to undermine
the objectives of the criminal justice system. With these factors in
mind, we conclude that the witness tampering offense in this case
was grave or serious.
b. Predicate Offenses
¶ 36 We agree with Clark that his predicate offense of first degree
criminal trespass was not grave or serious and we will assume
without deciding that, in this instance, his failure to register as a
sex offender is also not grave or serious. But we disagree with his
position that the remaining two predicate offenses were not grave or
serious.
16 ¶ 37 “First degree criminal trespass may not be a per se grave or
serious offense.” People v. Green, 2012 COA 68M, ¶ 57. The
underlying facts of Clark’s first degree criminal trespass offense
indicate that within a ten-day period, he unlawfully entered four
vehicles and stole items from the glove compartments. Considering
the minor magnitude of these circumstances, we conclude that
Clark’s first degree criminal trespass offense was not grave or
¶ 38 A division of this court previously held that vehicular eluding
poses a grave risk of harm to the public, and a conviction for such
conduct is a grave or serious offense. See People v. Allen, 111 P.3d
518, 520 (Colo. App. 2004). However, in Wells-Yates, the supreme
court more recently “conclude[d] that the designation of per se grave
or serious for purposes of a proportionality review must be reserved
for those rare crimes which, based on their statutory elements,
necessarily involve grave or serious conduct.” Wells-Yates, ¶ 63.
Regardless, the circumstances of Clark’s offense lead us to conclude
that his offense was indeed grave or serious. While intoxicated,
Clark kidnapped his girlfriend, drove with her in a car at a high rate
17 of speed, threatened to kill her, prevented her from leaving the
vehicle, and fled from law enforcement in the car and on foot.
¶ 39 As to Clark’s conviction for attempted sexual assault on a
child, we conclude that the offense was grave or serious. The
circumstances underlying the offense were that a seven-year-old
child-victim disclosed that Clark had touched her genitalia. The
severity of this offense is significant in at least four ways: (1) Clark
was charged with sexual assault on a child and pleaded guilty to
attempt; (2) the assault took place in the child’s residence; (3) Clark
engaged in grooming of the victim, such as giving the child gifts for
her silence; and (4) Clark was a registered sex offender at the time.
This offense involves a situation where Clark attempted to use a
vulnerable child as a tool for sexual fulfillment, potentially resulting
in lifetime harm to the child. The harm to the victim and to society
from such behavior was indeed grave or serious.
¶ 40 As to Clark’s failure to register conviction, the underlying facts
are that Clark failed to register as a sex offender within five days of
being released from jail and during the following month, before he
was re-arrested on a separate charge. A division of this court
previously concluded that “a defendant’s failure to register as a sex
18 offender is grave or serious because it threatens harm to society by
hindering the state’s ability to treat and supervise the sex offender.”
Green, ¶ 51. But whether failure to register as a sex offender is per
se grave or serious has yet to be determined under the supreme
court’s new framework, as laid out in Wells-Yates. See Wells-Yates,
¶ 63. We will assume without deciding that this offense is not per
se grave or serious.
¶ 41 In sum, Clark’s triggering offense and two of his predicate
offenses were grave or serious.
2. The Offenses in Combination and the Harshness of the Penalty
¶ 42 “It is not necessary for each offense to be grave or serious for a
court to conclude that a sentence is not grossly disproportionate.”
People v. Loris, 2018 COA 101, ¶ 29. Instead, when looking at the
triggering and predicate offenses in combination, the supreme court
has directed courts to consider the nonexclusive list of factors
outlined in part IV.A. In doing so, we see that, in all of his offenses
— whether grave or serious or not — Clark was the principal actor.
And all of his offenses, except for the attempted sexual assault on a
child — grave or serious in its own right — were completed acts.
Furthermore, most of the offenses included significant culpable
19 conduct. For example, the witness tampering offense required proof
that Clark intentionally undertook the actions. See
§ 18-8-707(1)(a). And the vehicular eluding offense required proof
of knowing conduct. See § 18-9-116.5, C.R.S. 2024.
¶ 43 With that in mind, we turn to a comparison of the gravity or
seriousness of the triggering and predicate offenses in combination
with the harshness of the penalty for Clark’s witness tampering
offense. See Wells-Yates, ¶ 23.
¶ 44 When considering the harshness of the penalty, “a great deal
of deference is due to legislative determinations regarding
sentencing.” People v. Deroulet, 48 P.3d 520, 523 (Colo. 2002),
abrogated on other grounds by Wells Yates. “[I]n non-capital cases,
courts will rarely conclude that a defendant’s sentence is grossly
disproportionate.” Rutter v. People, 2015 CO 71, ¶ 16.
Consequently, “in almost every case, the abbreviated proportionality
review will result in a finding that the sentence is constitutionally
proportionate, thereby preserving the primacy of the General
Assembly in crafting sentencing schemes.” Deroulet, 48 P.3d 520 at
526.
20 ¶ 45 On the tampering conviction, Clark was sentenced to
twenty-four years in the custody of the DOC and will be eligible for
parole after twelve years of confinement. See § 17-22.5-403(1),
C.R.S. 2024. “[W]hether a sentence is parole eligible is relevant
during an abbreviated proportionality review because parole can
reduce the actual period of confinement and render the penalty less
harsh.” Wells-Yates, ¶ 14.
¶ 46 Based on the gravity and seriousness of Clark’s offenses in
combination — which indicate a persistent disregard for the law —
compared to his parole-eligible, twenty-four-year sentence, we
conclude that Clark has not raised an inference of gross
disproportionality. See id. at ¶ 8; see also People v. Gee, 2015 COA
151, ¶ 65 (concluding that the defendant’s forty-eight-year prison
sentences were not grossly disproportionate where each was
supported by “at least two convictions for grave or serious crimes
. . . and a third felony conviction”); Loris, ¶ 30 (considering a
defendant’s persistent disrespect for the rule of law in making a
proportionality determination).
¶ 47 For these reasons, we conclude that the trial court did not err
by determining that his sentence for tampering with a witness or
21 victim did not raise an inference of gross disproportionality. It
follows that Clark is not entitled to an extended proportionality
review of his sentence. See Wells-Yates, ¶ 15.
V. Disposition
¶ 48 The judgment of conviction and sentence are affirmed.
JUDGE JOHNSON and JUDGE SCHOCK concur.