People v. Cunefare

85 P.3d 594, 2003 WL 22208428
CourtColorado Court of Appeals
DecidedMarch 8, 2004
Docket01CA0584
StatusPublished
Cited by4 cases

This text of 85 P.3d 594 (People v. Cunefare) is published on Counsel Stack Legal Research, covering Colorado Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Cunefare, 85 P.3d 594, 2003 WL 22208428 (Colo. Ct. App. 2004).

Opinions

Opinion by

Judge GRAHAM.

Defendant, Harold Cunefare, appeals the judgment of conviction entered upon a jury verdict finding him guilty of tampering with a witness and forgery. We reverse and remand.

In March 1998, the victim, defendant’s ex-wife, made a domestic assault complaint against defendant. The People charged defendant with second degree assault and other crimes.

In April 1998, the victim called the victim-witness advocate assigned to the case and said she wanted the charges against defendant dropped. The victim then sent a signed, notarized letter dated April 6, 1998, to the district attorney’s office stating that she did not tell the truth about the March incident and had made the statements out of anger.

The victim moved to Tennessee, and in November 1998, trial was set and the assault and related charges were immediately dismissed, in part because the prosecutor could not locate the victim.

Subsequently, the People charged defendant with witness tampering and forgery in connection with the victim’s April 1998 recantation letter and a subsequent letter that defendant apparently signed. The district attorney received both letters before trial was set.

At trial, the victim asserted that she did not author the April 1998 letter and that defendant asked her to sign it. She testified that she signed the letter out of fear. However, she conceded that she originally faxed the April 6 letter to the district attorney’s [596]*596office from her office when defendant was not present.

The victim also testified that in August 1998, defendant contacted her in Tennessee and said he would send a second recanting letter for her to sign and forward to the district attorney’s office: The victim testified that she tore up the letter and did not sign or mail it.

However, the district attorney’s office received a copy of that letter signed with the victim’s name. The victim opined that defendant had signed her name to the second letter because she recognized his handwriting.

I.

Defendant contends that the prosecution failed to present sufficient evidence to prove beyond a reasonable doubt that he committed tampering with a witness and forgery. We agree.

A. Tampering with a Witness

Under § 18-8-707(l)(a), C.R.S.2002, a defendant tampers with a witness if he “intentionally attempts without bribery or threats to induce a witness” to “[tjestify falsely or unlawfully withhold any testimony.” It is not necessary that the defendant succeed in inducing the witness to testify falsely or refrain from testifying. See People v. Scialabba, 55 P.3d 207, 210 (Colo.App.2002)(quoting People v. Moyer, 670 P.2d 785, 791 (Colo.1983)). “The essence of the crime of tampering with a witness is an intentional attempt to interfere with a witness, without regard to the success or failure of the attempt.” People v. Scialabba, supra, 55 P.3d at 210.

However, the People must prove an attempt to interfere with actual testimony, which is anticipated to be offered at a hearing, trial, or other proceeding where witnesses would be sworn. Compare People v. Scialabba, supra (the defendant mailed a letter to the victim suggesting that she not appear in court and later asked a third party to request that the victim not appear), with People v. Moyer, supra (the defendant threatened suit if the witness appeared before the grand jury). Indeed, a division of this court determined that a charge of tampering under § 18 — 8—707(l)(b), C.R.S.2002, requires proof that the witness has actually been legally summoned to testify. People v. Yascavage, 80 P.3d 899, 2003 WL 21511767 (Colo.App. No. 01CA1437, July 3, 2003).

Here, the prosecution alleged that defendant tampered with the victim when he asked her to send a letter to the prosecution stating that “the events of that evening on March 21 1998[sic] never happened.”

Although the record shows that the victim had given a “statement” to the prosecutor before she faxed the April recantation letter, here, nothing suggests that the statement was sworn or otherwise consisted of testimony. In fact, the record discloses that one reason the assault charges were dropped is that the prosecutor could not locate the victim and she was not subject to a subpoena.

At most, defendant asked the victim to attempt to persuade the prosecutor with a false letter, although defendant maintains that the letter was factually correct. Even if the letter could later be used to impeach testimony, it was not an attempt to induce the victim to testify falsely. Under these circumstances, the record is devoid of proof necessary to reasonably convince the trier of fact that a violation of § 18-8-707 occurred.

The People argue that defendant’s request to the victim “had the practical effect” of asking her to withhold testimony, but, in fact, there is nothing to show that her testimony was of any concern to defendant. Instead, the record discloses that defendant’s sole goal was to persuade the prosecutor to drop charges, and the victim’s testimony at a hearing or trial was not considered. If the prosecution’s view were correct, no defendant could ever request a party to “drop charges” without running afoul of the tampering statute.

Therefore, we conclude that the evidence as a whole, even viewed in the light most favorable to the prosecution, is insufficient to support a conclusion by a reasonable person that defendant was guilty of this charge beyond a reasonable doubt. See Kogan v. People, 756 P.2d 945 (Colo.1988).

[597]*597B. Forgery

We also agree •with defendant that his conduct did not violate the applicable section of the forgery statute as a matter of law.

Where a defendant passes an instrument he knows to be false, a presumption arises that he passed it with the intent to defraud, and the fact finder may infer intent to defraud. People v. Brown, 193 Colo. 120, 562 P.2d 754 (1977). It is not essential that the person receiving the instrument be defrauded because the crime is complete when the act and guilty knowledge coincide with the intent to defraud. Gentry v. People, 166 Colo. 60, 441 P.2d 675 (1968).

Section 18-5-102(l)(e), C.R.S.2002, states:

A person commits forgery, if, with intent to defraud, such person falsely makes, completes, alters, or utters a written instrument which is or purports to be, or which is calculated to become or to represent if completed: ...
(c) A deed, will, codicil, contract, assignment, commercial instrument, promissory note, check, or other instrument which does or may evidence, create, transfer, terminate, or otherwise affect a legal right, interest, obligation, or status-

Here, defendant sent a letter that purported to be the victim’s statements to the prosecutor’s office and signed the victim’s name as the author.

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Related

People v. Renfro
117 P.3d 43 (Colorado Court of Appeals, 2005)
People v. Cunefare
102 P.3d 302 (Supreme Court of Colorado, 2004)

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Bluebook (online)
85 P.3d 594, 2003 WL 22208428, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-cunefare-coloctapp-2004.