David Rediger went to the Rocky Mountain Youth Academy, a nonprofit day-treatment school, to confront its owner-director, Stacey Holland, about hay-theft charges that Holland and her husband had pursued against him. Holland testified that Rediger refused repeated requests to leave, followed her into a classroom, behaved aggressively, and threatened to report that her husband had stolen a truck unless the matter was settled. Rediger admitted that he initially did not leave but denied entering the school building or trying to cause a scene.
The People charged Rediger with witness or victim intimidation, interference with a public employee in a public building under section 18-9-110(1), and interference with staff, faculty, or students of an educational institution under section 18-9-109(2). The information charged subsection (2), which requires interference through restraint, abduction, coercion, intimidation, or force or violence. But the prosecutor's proposed elemental instruction tracked subsection (1)(b), a different offense requiring only that the defendant knowingly deny persons lawful use of school property or facilities. Defense counsel said that the defense was "satisfied" with the instructions and did not object.
The jury acquitted Rediger of witness intimidation but convicted him on both interference counts. The court of appeals reversed the public-employee conviction because Holland worked for the nonprofit Academy rather than a public entity. A divided court of appeals nonetheless upheld the educational-institution conviction, concluding that defense counsel had waived any constructive-amendment claim by affirmatively acquiescing in the instructions. The Colorado Supreme Court granted review of both issues.
Issue #1
Whether the owner-director of a regulated nonprofit school was a "public employee" under section 18-9-110(1).
Holding
No. A public employee is a person employed by a governmental entity that has the right to control the details of that person's work; Holland was employed by the nonprofit Academy, not a governmental entity.
Reasoning
The court treated the phrase "public employee" as unambiguous. Although Title 18 does not define that precise term, its definition of "public servant" uses "public" in the governmental sense. Ordinary employment principles likewise define an employee as a person who works for an employer that has the right to control the details of the person's performance. Taken together, these meanings establish that a public employee works for a governmental entity under an express or implied employment relationship subject to governmental control.
The People's broader interpretation—that anyone performing a governmental function is a public employee—would improperly collapse "public employee" into the separately defined term "public servant." The latter term expressly includes persons participating in governmental functions, while the legislature's use of different terms indicates that they carry different meanings. Courts also must avoid construing statutory language in a way that makes a word or phrase superfluous.
Holland's school was subject to accreditation, licensing, inspections, audits, and student-placement arrangements involving several state agencies. Those regulatory contacts did not make the agencies her employers, however, because none controlled the Academy's daily operations or the details of Holland's work. Treating employees of regulated private entities as public employees would be overbroad and would erase the ordinary distinction between governmental entities and private organizations.
Because the evidence showed only that Holland worked for and owned the nonprofit Academy, and did not show that a governmental entity employed or controlled her, the evidence was insufficient to support Rediger's conviction for interference with a public employee. The court therefore affirmed dismissal of that count with prejudice.
Issue #2
Whether Rediger invited the instructional error by stating that the defense was satisfied with the jury instructions.
Holding
No. Rediger did not invite the error because he neither drafted, tendered, requested, nor knowingly injected the erroneous instruction into the case.
Reasoning
Invited error is a narrow doctrine that prevents a litigant from challenging an error that the litigant deliberately caused or injected, ordinarily as a matter of trial strategy. It applies, for example, when a party drafts or tenders the erroneous instruction that the court gives; it does not generally apply to an oversight.
The prosecutor, not Rediger, tendered the instruction that tracked the wrong statutory subsection. The record contained no discussion showing that Rediger requested the instruction or even recognized the mismatch between the information and the instruction. His general statement of satisfaction therefore did not amount to the kind of intentional, strategic conduct that invokes invited error.
The court distinguished a prior case in which a party expressly agreed to jurisdiction and to the requested relief, then took the opposite position on appeal. Rediger made no comparable specific admission or concession. The available record instead indicated that all participants likely overlooked the discrepancy.
Issue #3
Whether defense counsel's general acquiescence in the instructions waived Rediger's constructive-amendment claim, or instead merely forfeited it.
Holding
It merely forfeited the claim. A statement that the defense was satisfied with the instructions did not show an intentional relinquishment of a known right.
Reasoning
Waiver requires the intentional relinquishment of a known right, while forfeiture is simply the failure to assert a right in a timely manner. The distinction matters because waiver extinguishes appellate review, whereas a forfeited claim remains reviewable for plain error. Courts also presume against waiver of fundamental constitutional rights.
Nothing in the record showed that Rediger or his counsel knew that the information charged section 18-9-109(2) while the elemental instruction described section 18-9-109(1)(b). Nor was there evidence that counsel considered an objection and deliberately declined to make one for tactical reasons. Counsel's rote statement that the defense was satisfied did not itself establish knowing and intentional abandonment of the right to be tried only on the charged offense.
Although defense counsel had received and read the proposed instructions, that fact showed only an opportunity to identify the error. It did not prove actual awareness of the discrepancy or a voluntary decision to relinquish the objection. The omission was thus neglect, not intentional waiver, and the court reviewed the claim for plain error.
Issue #4
Whether the difference between the charging information and the elemental jury instruction was a constructive amendment that constituted plain error.
Holding
Yes. The instruction constructively amended the information by submitting a materially different and less demanding offense to the jury, and the error was obvious, substantial, and required reversal.
Reasoning
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. The information charged section 18-9-109(2), which required proof that Rediger willfully impeded school staff or students through restraint, abduction, coercion, intimidation, force, violence, or threats of force or violence.
The elemental instruction instead set out section 18-9-109(1)(b). That offense required proof only that Rediger knowingly denied students, school officials, employees, or invitees the lawful use of school property or facilities. It omitted the coercion-, intimidation-, or force-related element required by the charged subsection.
This difference deprived Rediger of notice that he needed to defend against the offense actually submitted to the jury. It also allowed the jury to convict him under a materially reduced burden of proof while the verdict form identified the subsection originally charged. The court therefore concluded that the instruction altered the charge itself rather than merely misstated a peripheral matter.
The error was plain because it was obvious and substantial and undermined the fundamental fairness of the trial. There was a substantial likelihood that the jury returned a conviction under section 18-9-109(2) without finding the elements that subsection actually requires. The prosecution could not effectively amend the information merely by tendering an erroneous proposed jury instruction, absent a motion to amend or an agreement by the defendant.
Issue #5
Whether the constructive amendment required dismissal of the educational-institution charge or a new trial.
Holding
A new trial was required. The evidence was legally sufficient to permit a jury to convict Rediger under the offense originally charged.
Reasoning
The court viewed the evidence in the light most favorable to the prosecution when assessing sufficiency. Holland testified that Rediger came to the school during the school day, repeatedly refused to leave, followed her into a classroom, acted aggressively, and threatened to report her husband for truck theft if the dispute was not immediately settled. She said she was scared and felt threatened.
A reasonable juror could find from that evidence that Rediger willfully impeded Holland in her duties at the Academy through intimidation, as section 18-9-109(2) requires. Because the evidence did not fail as a matter of law to support the offense charged in the information, dismissal was unwarranted. The court reversed the conviction and remanded for a new trial, without deciding whether the prosecution must proceed on the original charge or may seek to amend the information.