The summaries of the Colorado Court of Appeals published opinions constitute no part of the opinion of the division but have been prepared by the division for the convenience of the reader. The summaries may not be cited or relied upon as they are not the official language of the division. Any discrepancy between the language in the summary and in the opinion should be resolved in favor of the language in the opinion.
SUMMARY June 25, 2026
2026 COA 52
No. 24CA1102, People v. Schmidt — Crimes — Forgery — Attempt to Influence a Public Servant
A division of the court of appeals disagrees with People v.
Carian, 2017 COA 106, ¶ 26, which held that forgery under
section 18-5-102(1)(d), C.R.S. 2025, applies only to documents filed
“pursuant to a legal mandate.” In addition, the division clarifies
that the crime of attempt to influence a public servant does not
require proof that the public servant had actual authority to act on
the matter under consideration. COLORADO COURT OF APPEALS 2026 COA 52
Court of Appeals No. 24CA1102 Boulder County District Court No. 23CR673 Honorable Stephen E. Howard, Judge Honorable Michael J. Vallejos, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Charles M. Schmidt,
Defendant-Appellant.
JUDGMENT REVERSED AND CASE REMANDED WITH DIRECTIONS
Division V Opinion by JUDGE TOW Welling and Lipinsky, JJ., concur
Announced June 25, 2026
Philip J. Weiser, Attorney General, Rachel Lieb, Assistant Attorney General II, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Christina Van Wagenen, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant ¶1 Defendant, Charles M. Schmidt, appeals the judgment of
conviction entered on a jury verdict finding him guilty of attempting
to influence a public servant and forgery after he tendered to a
district court judge, in a separate criminal case, a falsified
document purporting to confirm his completion of required useful
public service hours. Among other claims, Schmidt argues that his
forgery conviction must be vacated because the prosecution did not
prove that the falsified document was an instrument filed “pursuant
to a legal mandate” as required by People v. Carian, 2017 COA 106,
¶ 26. Because we disagree with the Carian division’s interpretation
of the relevant statutory language, we reject that claim.
¶2 We also reject Schmidt’s challenge to the sufficiency of the
evidence supporting the conviction for attempt to influence a public
servant. In doing so, we hold — for the first time in a published
appellate decision — that in proving that a defendant attempted to
influence a public servant “concerning any matter which is to be
considered or performed by the public servant,” § 18-8-306, C.R.S.
2025, the prosecution need not prove that the public servant had
actual authority to act on the matter under consideration.
1 ¶3 However, because we conclude that the trial court improperly
precluded Schmidt from introducing certain evidence pertinent to
both charges, we reverse and remand for a new trial.
I. Background
¶4 Schmidt, who had been working as a bounty hunter, was
serving a probation sentence after assaulting someone while trying
to apprehend them. After allegedly violating the terms of his
probation, Schmidt appeared at a probation revocation resentencing
hearing. He submitted a letter to the district court, through his
attorney, attesting that he had completed fifty hours of useful
public service, which had been a condition of his original probation
sentence (the public service letter). Though the public service letter
had a Salvation Army logo on it, it did not appear to be on
letterhead, and the body of the letter was replete with misspellings
and punctuation and grammatical errors. The district court
questioned the validity of the public service letter but reinstated
Schmidt’s probation anyway.
¶5 Following an investigation, the prosecution concluded that
Schmidt had forged the public service letter “to be used to [his]
advantage to convince [t]he [c]ourt that his community service was
2 completed and to bolster his argument to the court regarding his
probation status.” The prosecution charged Schmidt with
attempting to influence a public servant and forgery.
¶6 Schmidt’s defense theory at trial was that he completed his
required public service hours and submitted what he believed to be
valid proof of having done so to the court in the form of his public
service letter. Schmidt’s timeline for completing his public service
hours fell between late 2020 to early 2021 — during the COVID-19
pandemic.
¶7 Schmidt testified that he approached his public service hours
cautiously because he was immunosuppressed. These precautions
included wearing a mask and staying away from others while
completing his work at a Salvation Army food bank. Schmidt also
said that he had back surgery during the same period. Schmidt
testified that he filed a motion with the court to modify his
probation because he was uncertain that he would be able to
complete the public service hours before the court-imposed
deadline due to his physical limitations following his surgery.
¶8 On the morning of the third day of trial, a division of this court
issued an opinion addressing Schmidt’s appeal of his probation
3 resentencing. In People v. Schmidt, (Colo. App. No. 23CA0485, Feb.
22, 2024) (not published pursuant to C.A.R. 35(e)) (Schmidt I), the
division determined that, contrary to the district court’s
understanding, the district court had not stayed Schmidt’s sentence
during the pendency of a prior appeal involving his probation
sentence.1 Thus, his probation sentence had expired before the
probation department moved to revoke it. As a result, the division
concluded that “the district court lacked jurisdiction to revoke
Schmidt’s probation and resentence him based on the new offense
that he allegedly committed after his probation had expired” and
vacated the district court’s order resentencing him to sixty days in
jail and two years of probation. Id., slip op. at ¶¶ 19-21.
¶9 Defense counsel requested a mistrial on the attempt to
influence a public servant and forgery charges, noting that the
“case here is completely premised on a misapplication of the law.”
The district court acknowledged that the opinion raised “legitimate
1 Schmidt had appealed the district court’s denial of his request to
terminate probation early and its order requiring him to serve eight days on electronic home monitoring.
4 issues,” but it nevertheless denied the request and moved forward
with the proceedings. A jury convicted Schmidt on both counts.
¶ 10 Schmidt raises three issues on appeal. He asserts that there
was insufficient evidence to convict him of either charge. He
contends that the trial court2 erred by prohibiting him from
testifying about his own medical diagnoses. And he argues that the
trial court should have permitted him to present witnesses who
would testify regarding his character for truthfulness.
II. Sufficiency of the Evidence
¶ 11 Schmidt contends that the prosecution failed to present
sufficient evidence that he attempted to influence a public servant
or committed forgery. We disagree.
A. Standard of Review and Applicable Law
¶ 12 “The Due Process Clauses of the United States and Colorado
Constitutions require proof of guilt beyond a reasonable doubt on
2 The judge who presided over Schmidt’s trial on the attempt to
influence a public servant and forgery charges was not the same judge to whom Schmidt had provided the public service letter. For the sake of clarity, we refer to the court before which Schmidt was tried on these charges as “the trial court” and the court before which Schmidt’s probation revocation proceedings occurred — and to which Schmidt tendered the public service letter — as “the district court.”
5 each of the essential elements of a crime.” People v. Duncan, 109
P.3d 1044, 1045 (Colo. App. 2004); see U.S. Const. amends. V, XIV;
Colo. Const. art. II, § 25. A defendant challenging the sufficiency of
the evidence is “asserting that the prosecution has not proven every
fact necessary to establish the crime at issue, and thus, it has not
established that the defendant, in fact, committed a crime.” McCoy
v. People, 2019 CO 44, ¶ 20.
¶ 13 When considering a sufficiency of the evidence claim, “[w]e
review the record de novo to determine whether the evidence before
the jury was sufficient both in quantity and quality to sustain the
defendant’s conviction.” Clark v. People, 232 P.3d 1287, 1291
(Colo. 2010). In doing so, we apply the substantial evidence test, in
which “we ask whether the evidence, ‘viewed as a whole and in the
light most favorable to the prosecution, is substantial and sufficient
to support a conclusion by a reasonable mind that the defendant is
guilty of the charge beyond a reasonable doubt.’” Gorostieta v.
People, 2022 CO 41, ¶ 16 (quoting People v. Harrison, 2020 CO 57,
¶ 32). The same standard of review applies to a sufficiency
challenge based on a purely legal question, such as statutory
construction. McCoy, ¶ 31.
6 ¶ 14 Generally, “the prosecution is provided with one fair
opportunity to present evidence sufficient to sustain a conviction.”
People v. Miralda, 981 P.2d 676, 680 (Colo. App. 1999).
Consequently, unless some action by the defense or ruling by the
court prevented the prosecution from presenting evidence, vacatur
of a conviction due to insufficiency of the evidence bars retrial of the
defendant on the charges. Id.
¶ 15 “In construing a statute, we interpret the plain language of the
statute to give full effect to the intent of the General Assembly.”
People v. Griego, 2018 CO 5, ¶ 25. “When the statutory language is
clear, we apply the plain and ordinary meaning of the provision.”
Id. “In doing so, we give consistent, harmonious, and sensible effect
to each part of the statute, and we interpret every word, rendering
no words or phrases superfluous and construing undefined words
and phrases according to their common usage.” Id.
B. Attempt to Influence a Public Servant
¶ 16 Schmidt argues the evidence was insufficient to prove that he
attempted to influence a public servant. Specifically, he contends
that the “evidence can only be sufficient if the public servant had
the authority to act for the government.”
7 ¶ 17 Section 18-8-306 provides that
[a]ny person who attempts to influence any public servant by means of deceit . . . , 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 the public servant . . . , commits a class 4 felony.
¶ 18 Schmidt does not contest the district court judge’s status as a
“public servant.” And notwithstanding the People’s focus on the
issue in their appellate briefing, Schmidt does not challenge the
legal conclusion that a “defendant doesn’t have to successfully
influence a public servant” to be convicted of this offense. Rather,
the fulcrum on which this challenge hinges is the statutory phrase
“concerning any matter which is to be considered or performed by
the public servant.” Id.
¶ 19 Schmidt argues that “no evidence presented by the
prosecution in this case could overcome [the Schmidt I division’s]
no-jurisdiction finding, [because it] negated the ‘matter which is to
be considered or performed’ element of the offense.” The People
counter that the statutory language is broad, that there is no
dispute that “probation resentencing is a matter within the
consideration of a trial court,” and that “the [district] court
8 considered the letter in resentencing Schmidt.” They further
contend that Schmidt’s interpretation of the statutory language
would “lead to an absurd result [because] [i]t would essentially
grant a defendant a free pass if he attempted to influence a public
servant but later found out the public servant did not have the
authority to do what the defendant wanted.”
¶ 20 To assess this issue, we look to the language of the statute,
which the jury instruction on the charge tracked in laying out the
elements for the jurors to consider. (Notably, Schmidt does not
contend that this instruction was erroneous.) The trial court
instructed the jurors that, to convict Schmidt of attempt to
influence a public servant, they had to be convinced beyond a
reasonable doubt
1) [t]hat the defendant,
2) on or about March 16, 2023,
3) with the intent,
4) to alter or affect any public servant’s decision, vote, opinion, or action concerning any matter which was to be considered or performed by the public servant . . . ,
5) attempted to influence the public servant by means of deceit.
9 ¶ 21 A close analysis of this instruction reveals two things of note.
First, it applied the mens rea of “intent” to each element of the
offense. See People v. Hoggard, 2017 COA 88, ¶ 40, aff’d on other
grounds, 2020 CO 54. This means that a conviction on this count
required that Schmidt intended to do three things: (1) alter or affect
any public servant’s decision (or vote or opinion or action);
(2) attempt to influence the public servant;3 and (3) do so by means
of deceit. See id. at ¶ 42.
¶ 22 Second, the phrase, “concerning any matter which is to be
considered or performed by the public servant,” is not a separate
element to be proved. § 18-8-306. Rather, as relevant to this case,
it is to be read in conjunction with the word “action” and aims to
3 “Attempt” in this context is not the same as the “substantial step”
required under the statutory definition of criminal attempt to commit an offense in section 18-2-101(1), C.R.S. 2025. People v. Riley, 2015 COA 152, ¶¶ 27-30. Where the General Assembly provides that the mere act of attempting to do something constitutes a completed, as opposed to an inchoate, offense, “attempt” simply means an “act or an instance of making an effort to accomplish something.” People v. Johnson, 2024 CO 32, ¶ 27 (quoting Black’s Law Dictionary 158 (11th ed. 2019)) (interpreting “attempt” in the child enticement statute, § 18-3-305(1), C.R.S. 2025)). Thus, in this context, a defendant intentionally attempts to influence a public servant when it is their “conscious objective,” § 18-1-501(5), C.R.S. 2025, to engage in an effort to accomplish their goal of influencing the public servant.
10 capture a larger subset of matters in which a person could
reasonably influence a public servant.4
¶ 23 In light of these considerations, we conclude that the General
Assembly enacted this provision to criminalize deceitful acts that
could potentially influence a public servant. See People v. Frysig,
628 P.2d 1004, 1007 (Colo. 1981) (“The primary purpose in
punishing attempts is not to deter the commission of completed
crimes, but rather to subject to corrective action those individuals
who have sufficiently manifested their dangerousness.” (citation
omitted)). This inference is supported by the fact that a person
does not have to succeed in influencing a public servant to be
convicted of this crime. See People v. Sena, 2016 COA 161, ¶ 16
(“[W]hether the public servant was actually influenced by the
defendant’s attempts is not an element of the crime.”). And it
4 This reading of the statute is further supported by People v. Blue,
253 P.3d 1273, 1277 (Colo. App. 2011). In that case, a division of this court described the elements of the crime of attempt to influence a public servant as “(1) an attempt to influence a public servant; (2) by means of deceit . . . ; and (3) with the intent to alter or affect the public servant’s decision or action.” Id. The phrase “concerning any matter which is to be considered or performed by [the public servant]” was not listed as an element, despite its presence in the statutory language at that time. § 18-8-306, C.R.S. 2010.
11 logically follows that the General Assembly would not treat
differently a defendant who intended to influence a public servant,
and took deceitful action to do so, but happened to mistakenly
believe the particular public servant actually had control over the
requisite decision. In our view, this reading “give[s] full effect to the
intent of the General Assembly.” Griego, ¶ 25.
¶ 24 With this in mind, we then assess whether the prosecution
provided sufficient evidence that (1) Schmidt, (2) on or about March
16, 2023, (3) with the intent to affect any public servant’s decision,
(4) attempted to influence the public servant by means of deceit.
We hold that there is sufficient evidence to support each of these
elements.
¶ 25 As noted, neither party contests the district court judge’s
status as a public servant. And the prosecution offered evidence
that the district court considered the public service letter as a
mitigating factor during the resentencing process. And regardless
of the subsequent determination that the district court judge lacked
jurisdiction over the resentencing hearing, Schmidt nevertheless
presented the forged public service letter with the intent to affect the
decision the judge was actively considering at that time. For these
12 reasons, we conclude that the evidence is substantial and sufficient
to support a conclusion beyond a reasonable doubt that Schmidt is
guilty of attempting to influence a public servant. See Gorostieta,
¶ 16.
C. Forgery
¶ 26 Schmidt next contends the evidence was insufficient to prove
forgery. Specifically, he argues that the public service letter did not
have the necessary “legal efficacy” to fall within the definition of
forgery, nor did it fall into one of the defined categories of written
instruments within subsection (1)(d) of the forgery statute.
¶ 27 Section 18-5-102(1)(d), C.R.S. 2025, provides:
(1) A person commits forgery, if, with intent to defraud, the person falsely makes, completes, alters, or utters a written instrument that is or purports to be, or that is calculated to become or to represent if completed:
....
(d) A public record or an instrument filed or required by law to be filed or legally fileable in or with a public office or public servant.
(Emphasis added.)
¶ 28 “[W]hen the word ‘or’ is used in a statute, it is presumed to be
used in the disjunctive sense, unless legislative intent is clearly to
13 the contrary.” Armintrout v. People, 864 P.2d 576, 581 (Colo. 1993).
Therefore, under subsection (1)(d), a written instrument must fall
into one of two categories: (1) a public record or (2) an instrument
filed or required by law to be filed or legally fileable in or with a
public office or public servant. § 18-5-102(1)(d). We conclude that
the public service letter was an instrument that was legally fileable
with a public servant.
¶ 29 First, the public service letter is a written instrument, in that
it is a “document . . . containing written or printed matter . . . used
for purposes of reciting, embodying, conveying, or recording
information, . . . which is capable of being used to the advantage or
disadvantage of some person.” § 18-5-101(9), C.R.S. 2025. Second,
again, the district court judge is a public servant. The question,
then, turns on whether the public service letter was “legally
fileable.” § 18-8-306. Significantly, there is no indication that the
district court prevented Schmidt from tendering the document to
the court or refused to put it in the file. To the contrary, the court
accepted the document, and it is part of the file.
¶ 30 Schmidt, however, argues that the document was not filed
“pursuant to a legal mandate” as required by People v. Carian, 2017
14 COA 106, ¶ 26. In Carian, the division interpreted subsection (1)(d)
of the forgery statute under similar — but not identical —
circumstances. There, the defendant submitted a falsified
urinalysis report to his probation officer. Id. at ¶ 7. The division
noted that, “in the context of subsection (1)(d), ‘to file’ an
instrument must mean more than simply delivering it to a public
office or a public servant.” Id. at ¶ 24. Instead, the language ‘‘‘filed
or required by law to be filed or legally fileable in or with a public
office or public servant’ refers to those instruments actually
delivered to a public office or public servant pursuant to a legal
mandate.” Id. at ¶ 26 (emphasis added) (quoting § 18-5-102(1)(d)).
The division concluded that the probation officer, “while a public
servant, was not mandated to receive and maintain urinalysis
reports as required by subsection (1)(d).” Id. at ¶ 32. As a result,
the division vacated the defendant’s conviction for forgery. Id. at
¶ 36.
¶ 31 We do not agree that Carian is dispositive. First, the division’s
language appears to eliminate the distinction between filed and
fileable. To the extent it does so, we disagree with the division and
decline to follow its decision. See People v. Martinez, 2022 COA
15 142, ¶ 24 (one division of the court of appeals is not bound by the
decision of another). Moreover, Carian is distinguishable because of
the recipient of the deceitful document at issue. It is far from clear
that providing a document to a probation officer is an act of “filing”
a document. But there can be no doubt that tendering a document
to the court for purposes of placing that document into the court
record amounts to “filing” that document. See Black’s Law
Dictionary 768 (12th ed. 2024) (defining the verb “file” as “[t]o
deliver a legal document to the court clerk or record custodian for
placement into the official record”).
¶ 32 In short, because there was no legal impediment to Schmidt
submitting the public service letter to the court for inclusion in the
court file, it was legally fileable. Consequently, we conclude that
there was sufficient evidence to convict Schmidt of forgery under
section 18-5-102(1)(d).
III. Character for Truthfulness
¶ 33 Schmidt contends that the trial court erred by refusing to
allow any witnesses to testify about his character for truthfulness.
We agree and, therefore, reverse his convictions and remand for a
new trial.
16 A. Standard of Review and Applicable Law
¶ 34 “We review a trial court’s evidentiary rulings for an abuse of
discretion.” Campbell v. People, 2019 CO 66, ¶ 21. A trial court
abuses its discretion when it misapplies the law or when its
decision is manifestly arbitrary, unreasonable, or unfair. People v.
McLaughlin, 2023 CO 38, ¶ 22. But “[w]e review an alleged violation
of constitutional rights de novo.” People v. Scott, 2021 COA 71,
¶ 12.
¶ 35 We review trial errors of a constitutional dimension that were
preserved by objection for constitutional harmless error. Hagos v.
People, 2012 CO 63, ¶ 11. Constitutional harmless errors “require
reversal unless the reviewing court is ‘able to declare a belief that
[the error] was harmless beyond a reasonable doubt.’” Id. (quoting
Chapman v. California, 386 U.S. 18, 24 (1967)). “Stated differently,
the question ‘is not whether, in a trial that occurred without the
error, a guilty verdict would surely have been rendered, but whether
the guilty verdict actually rendered in this trial was surely
unattributable to the error.’” Zoll v. People, 2018 CO 70, ¶ 18
(quoting Sullivan v. Louisiana, 508 U.S. 275, 279 (1993)).
17 ¶ 36 We review nonconstitutional trial errors that were preserved by
objection for harmless error. Hagos, ¶ 12. “Under this standard,
reversal is required only if the error affects the substantial rights of
the parties,” id., which occurs “if the error ‘substantially influenced
the verdict or affected the fairness of the trial proceedings,’” id.
(quoting Tevlin v. People, 715 P.2d 338, 342 (Colo. 1986)).
¶ 37 As a general rule, character evidence is not admissible under
CRE 404(a), but certain exceptions apply. CRE 404(a)(1) “allows an
accused to introduce evidence of a ‘pertinent’ trait of character at
trial.” People v. Miller, 890 P.2d 84, 94 (Colo. 1995) (emphasis
omitted) (quoting CRE 404(a)(1)). A defendant’s truthfulness is a
pertinent trait if “[t]he offense charged is crimen falsi; i.e., a lie by
the defendant is an element of the crime.” Id. at 92 (quoting United
States v. Hewitt, 634 F.2d 277, 279 (5th Cir. 1981)). Alternatively,
CRE 608(a) “permits the admission of opinion or reputation
evidence of a witness’s character for truthfulness, but only ‘after the
character of the witness for truthfulness has been attacked by
opinion or reputation evidence.’” People v. Serra, 2015 COA 130,
¶ 62 (quoting CRE 608(a)). And “[m]erely questioning a witness’s
18 credibility does not necessarily constitute an attack on that
witness’s overall character for truthfulness.” Id. at ¶ 65.
B. Additional Background
¶ 38 Following Schmidt’s testimony, defense counsel asked to call
three witnesses to present evidence of Schmidt’s truthful character.
Defense counsel argued that “the cross-examination of Mr. Schmidt
was nothing but attacking his character for truthfulness” and
therefore opened the door to providing rebuttal witnesses to testify
to his character for truthfulness under CRE 608.
¶ 39 Relying on People v. Serra, 2015 COA 130, the court noted
that to trigger the admission of character evidence under CRE 608,
questions aimed at a witness “must do more than attack the
truthfulness of the witness’s testimony, they must attack [their]
general propensity to tell the truth.” Serra, ¶ 66. The court asked
defense counsel to explain what he perceived to be an attack on
Schmidt’s general propensity to tell the truth. Defense counsel
responded, arguing that “this whole case is about dishonesty” and
that the charges, by nature, “are allegations that he’s a dishonest
person.” Defense counsel reemphasized this point later in the
discussion, highlighting that “this case is very different than an
19 assault or trespass case, where there might be impeachment”
because Schmidt’s charges, “by their nature, are attacks on
character,” and honesty is “an essential element of the charge.”
¶ 40 The court ultimately barred the use of Schmidt’s witnesses to
introduce evidence of his character for truthfulness. When it
presented its ruling, the trial court acknowledged that it was
possible that “the nature of the charge should be taken into
account in determining whether character evidence of
truthfulness . . . should be received” but that it was unaware of any
case law requiring as much. The court also noted that the
“witnesses were not timely disclosed” but found that it was unclear
whether the prosecution was prejudiced by the late disclosure. The
prosecution argued that it “did not have an opportunity to properly
investigate these individuals” due to the late disclosure. The court
did not enter a ruling on whether the late disclosure prejudiced the
prosecution and instead confirmed its ruling under CRE 608.
C. Analysis
1. Preservation
¶ 41 The parties disagree as to what portions of Schmidt’s
argument are preserved. The People concede that Schmidt
20 preserved his argument under CRE 608. But they contend that
Schmidt did not preserve his argument under CRE 404(a)(1).
Schmidt argues “trial counsel preserved this error by arguing the
substance of CRE 404(a)(1).”
¶ 42 “We do not require that parties use ‘talismanic language’ to
preserve particular arguments for appeal . . . .” People v. Melendez,
102 P.3d 315, 322 (Colo. 2004). Instead, a party need only “present
the trial court with ‘an adequate opportunity to make findings of
fact and conclusions of law’ on the issue.” Martinez v. People, 2015
CO 16, ¶ 14 (quoting Melendez, 102 P.3d at 322). As noted,
Schmidt argued at various points that the nature of the charges
inherently involved his character for truthfulness. And the court
made findings on that issue when it determined that the type of
case did not impact the admission of character evidence. We
conclude that Schmidt preserved his argument under CRE
404(a)(1). See People v. Coughlin, 304 P.3d 575, 582 (Colo. App.
2011) (“Even if an objection to evidence does not specifically identify
the rule underlying the objection, it is nonetheless sufficient to
preserve an issue for appeal if the objecting attorney presents
21 arguments or utilizes language that alerts the trial court to the
impending error.”).
2. Crimen Falsi Offenses
¶ 43 As noted, supra Part II.B, one element of the crime of attempt
to influence a public servant is influencing any public servant “by
means of deceit.” § 18-8-306. Similarly, Schmidt’s forgery charge
required proof of Schmidt’s intent to defraud and his act of
tendering a false document. See § 18-5-102(1)(d). And to defraud
is to act by deceit. Black’s Law Dictionary 535 (12th ed. 2024)
(defining “defraud” as “[t]o cause injury or loss to (a person or
organization) by deceit”).
¶ 44 “[D]eceit” is defined as “[t]he act of intentionally leading
someone to believe something that is not true; an act designed to
deceive or trick.” Black’s Law Dictionary 509 (12th ed. 2024). For
purposes of determining whether each of these offenses is a crimen
falsi, we see no distinction between deceit and a lie. After all,
“lying” is defined as “mak[ing] an untrue statement with intent to
deceive.” Merriam-Webster Dictionary, https://perma.cc/LA3Z-
GWHL. And because deceit is at the core of both attempting to
influence a public servant and forgery, it follows that Schmidt’s
22 alleged truthfulness was a pertinent trait, see Miller, 890 P.2d at 94,
and that he should have been permitted to offer evidence of that
character trait, see CRE 404(a)(1).
¶ 45 Because the trial court misapplied the law, it abused its
discretion. See McLaughlin, ¶ 22. The question then becomes
whether the error in excluding this testimony requires reversal.
3. Constitutional Harmless Error
¶ 46 The People contend that we should review for
nonconstitutional harmless error because “the constitutional right
to present a defense is not absolute,” and the “right is abridged
‘only where the defendant was denied virtually his only means of
effectively testing significant prosecution evidence.’” See Krutsinger
v. People, 219 P.3d 1054, 1062 (Colo. 2009). The People argue that
Schmidt was permitted to testify about his own character, and,
therefore, his constitutional right was not abridged.
¶ 47 But the constitutional right to present a defense includes “the
right to call witnesses on [a defendant’s] behalf,” People v.
Gonzales-Quevedo, 203 P.3d 609, 611 (Colo. App. 2008), which was
clearly violated when Schmidt’s witnesses were barred from
testifying. Indeed, as the United States Supreme Court has
23 observed, “Few rights are more fundamental than that of an
accused to present witnesses in his own defense.” Chambers v.
Mississippi, 410 U.S. 284, 302 (1973); see also Golob v. People, 180
P.3d 1006, 1013 (Colo. 2008) (“Because a criminal defendant has
the right to call witnesses in [their] defense, abridgment of that right
is subject to a constitutional harmless error analysis.”); Melendez,
102 P.3d at 319 (applying constitutional harmless error review to
exclusion of defense witnesses’ testimony after he violated a
sequestration order).
¶ 48 And given the fact that Schmidt’s character for truthfulness
was directly related to the crimes charged, his proposed witnesses
would have tested significant prosecutorial evidence that Schmidt’s
testimony alone was ill-equipped to combat.
¶ 49 In other words, the erroneous exclusion of Schmidt’s character
witnesses effectively deprived him of the only means of effectively
challenging the prosecution’s evidence regarding a significant issue
in the case — his character for truthfulness. Therefore, we apply
the constitutional harmless error standard to the exclusion of
Schmidt’s witnesses and will reverse absent a showing that the
24 error was harmless beyond a reasonable doubt. See Golob, 180
P.3d at 1013.
¶ 50 The proposed witnesses were set to testify that they had
“formed an opinion of Mr. Schmidt as having an honest character”
after working with him in a professional capacity for several years.
Through this testimony, Schmidt may have been able to rehabilitate
his character for truthfulness, which — again — was at issue due to
the nature of the charge. Moreover, the testimony would have
further supported Schmidt’s defense theory that he did not know
that the public service letter was forged when he submitted it to the
court and therefore did not intend to deceive the judge. Thus, we
cannot say that the exclusion of witness testimony addressing
Schmidt’s character for truthfulness was surely unattributable to
the guilty verdict. See Zoll, ¶ 18.
D. Untimely Disclosure of Witnesses
¶ 51 Finally, noting that we can affirm a judgment on any ground
supported by the record, see People v. Manyik, 2016 COA 42, ¶ 69,
the People argue that we should do so here because the trial court
could have properly excluded the witnesses as a discovery sanction.
We decline to take this step.
25 ¶ 52 True, a trial court generally has discretion, after properly
considering the attendant circumstances, to exclude evidence that
was not timely disclosed. See People v. Pronovost, 773 P.2d 555,
558 (Colo. 1989) (enumerating the factors a court must consider
when determining whether to exclude a criminal defendant’s
evidence based on a late disclosure). But after permitting the
prosecutor to explain how she was prejudiced by the late
disclosure, the court neither found prejudice nor excluded the
witnesses as a sanction. Significantly, the court declined to do so
even as an alternative ground, notwithstanding its acknowledgment
that its decision to exclude the witnesses was “a very close call.”
¶ 53 The People argue that the court would not have abused its
discretion had it chosen to exclude the witnesses as a sanction.
But based on the record, we are unable to determine if that is true.
The trial court did not make findings on — or, as far as we can tell,
even consider — the Pronovost factors. As a result, the record does
not provide an alternative basis for us to affirm. (In any event, we
note that any prejudice flowing from the inability to prepare for the
witnesses is necessarily alleviated now; on remand, the People will
26 have ample notice of these witnesses and time to prepare to
cross-examine them.)
¶ 54 Because the trial court erroneously interfered with Schmidt’s
ability to mount a defense and that error was not harmless,
Schmidt is entitled to a new trial.
IV. Testimony Regarding Medical Diagnoses
¶ 55 Schmidt also contends that the trial court violated his
constitutional right to testify and to present a complete defense by
limiting his trial testimony regarding his own medical conditions.
However, because we do not know if, or in what context, this issue
will arise again on retrial, we decline to address it.
V. Disposition
¶ 56 The judgment of conviction is reversed, and the case is
remanded for a new trial.
JUDGE WELLING and JUDGE LIPINSKY concur.