Peo v. Clark

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

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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

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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

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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.

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¶ 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.

A. Standard of Review and Applicable Law

¶ 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

serious.

¶ 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.

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