People v. Hoggard

Citations

• 2017 COA 88

Syllabus

Custody—Child and Family Investigator—Second Degree Forgery—Attempt to Influence a Public Servant—Invited Error—Waiver—Constructive Amendment—Lesser Included Offense—Jury Instructions—Mens Rea. During a child custody dispute, Hoggard forwarded to the court-appointed child and family investigator a chain of emails between her and her ex-husband. Hoggard allegedly falsified that email chain by adding five sentences that made it appear that her ex-husband had threatened her. As a result of that alleged falsification, Hoggard was convicted of second degree forgery and attempt to influence a public servant. As an initial matter, the People argued that the doctrines of invited error and waiver preclude appellate review of Hoggard's instructional error claims. Although Hoggard's counsel approved the disputed jury instructions, it was an oversight, not a strategy, and therefore not invited error. Further, the failure to object to the jury instructions was not a waiver under the circumstances of this case. Hoggard contended on appeal that the trial court constructively amended the second degree forgery charge by instructing the jury on the uncharged and more serious offense of felony forgery. Although the trial court's forgery instruction was erroneous, instructing the jury on felony forgery was not a constructive amendment because Hoggard was both charged with and convicted of second degree forgery, a lesser included offense of felony forgery. Further, there is no reasonable likelihood that the instructional error affected the outcome of the trial. Hoggard next argued that her conviction for attempt to influence a public servant must be reversed because the trial court did not instruct the jury on the required mens rea for each element of the offense, thereby violating her constitutional due process rights. Although the trial court's instruction on the charge tracked the statute, it did not expressly require the jury to find that Hoggard acted with intent as to the third an