v. Carter , 2021 COA 29 ( 2021 )

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
March 11, 2021
2021COA29
No. 17CA2331, People v. Carter — Crimes — DUI — Prior
Convictions; Criminal Law — Constructive Amendments —
Structural Error
A division of the court of appeals holds that a constructive
amendment to a criminal charge is not structural error, rejecting a
line of court of appeals cases holding that such an amendment is
“per se reversible.”
COLORADO COURT OF APPEALS 2021COA29
Court of Appeals No. 17CA2331
Arapahoe County District Court No. 17CR435
Honorable Andrew C. Baum, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Wayne Henderson Carter,
Defendant-Appellant.
JUDGMENT AFFIRMED IN PART, REVERSED IN PART,
AND CASE REMANDED WITH DIRECTIONS
Division V
Opinion by JUDGE J. JONES
Berger, J., concurs
J. Jones, J., concurs dubitante
Pawar, J., concurs in part and dissents in part
Announced March 11, 2021
Philip J. Weiser, Attorney General, Brian M. Lanni, Assistant Attorney General,
Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Rachel K. Mercer, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 Defendant, Wayne Henderson Carter, appeals his convictions
for felony driving under the influence (felony DUI) and failure to
present proof of insurance. We conclude that the district court
erred by (1) treating the requirement of three prior convictions for
felony DUI as a sentence enhancer rather than an element of the
offense and (2) constructively amending the failure to present proof
of insurance charge by instructing the jury on operating a motor
vehicle without insurance.
¶2 Linnebur v. People, 2020 CO 79M, recently decided by the
supreme court, requires that we reverse Carter’s conviction for
felony DUI. On remand, the court may enter a conviction for
misdemeanor DUI. If the People elect instead to retry Carter for
felony DUI, and Carter raises a double jeopardy defense, the court
should rule on the applicability of that defense to the facts of this
case.
¶3 But as to the constructive amendment of the failure to present
proof of insurance charge, we hold that Carter waived his
contention on appeal or, alternatively, that the error wasn’t plain.
In reaching the alternative holding that any error wasn’t plain, we
decline to follow decisions by other divisions of this court treating
1
constructive amendments as “per se reversible.” We do so because
(1) the Colorado Supreme Court has held that, outside the limited
category of constitutional errors considered “structural,” there is no
constitutional error that is automatically reversible and (2) a
constructive amendment isn’t structural error. Nonetheless, the
mittimus should reflect a conviction for operating a motor vehicle
without insurance — the charge on which the jury was instructed
— not failure to present proof of insurance.
¶4 We therefore reverse the conviction for felony DUI, affirm the
conviction for operating a motor vehicle without insurance, and
remand for correction of the mittimus and further proceedings
consistent with this opinion.
I. Background
¶5 The prosecution alleged that Carter drove drunk and got in a
series of hit and run accidents in the space of several hours. When
police eventually contacted Carter later that day, he was at a
friend’s house; his was car parked outside. He declined both a
blood and breath test and didn’t provide insurance information for
the vehicle when a police officer asked him for it.
2
¶6 The People charged Carter with felony DUI, leaving the scene
of an accident, and failure to present proof of insurance.1 A jury
found Carter guilty of the first two offenses and of operating a motor
vehicle without insurance. On appeal, he challenges only the felony
DUI and insurance coverage convictions.
II. Felony DUI
¶7 DUI is ordinarily a misdemeanor, but it becomes felony DUI if
it occurs after three or more prior convictions for DUI, DUI per se,
or driving while ability impaired (DWAI). § 42-4-1301(1)(a), C.R.S.
2020. Consequently, to prove felony DUI, the prosecution must
prove that the defendant has three or more prior DUI, DUI per se,
or DWAI convictions.
¶8 Carter filed a motion requesting that the prosecution be
required to prove the three prior convictions to a jury beyond a
reasonable doubt. The district court ruled that the requirement of
three prior convictions for felony DUI is a sentence enhancer, not
an element of the offense, and therefore allowed the prosecution to
prove the prior convictions to the court by a preponderance of the
1The People also charged Carter with driving after revocation
prohibited, but the People later dismissed that charge.
3
evidence. (After the jury verdicts, the court found that Carter had
three prior qualifying offenses.)
¶9 Carter argues on appeal, as he did below, that the requirement
of three prior convictions is an element of felony DUI, and that the
district court therefore violated his constitutional right to have a
jury decide that element beyond a reasonable doubt.
¶ 10 After the briefing in this case, the supreme court addressed
this issue in Linnebur. The court held that the requirement of three
prior convictions is an element of felony DUI that must be proved to
a jury beyond a reasonable doubt. Linnebur, ¶ 31. Based on
Linnebur, we must conclude that the district court erred. We
therefore reverse Carter’s felony DUI conviction. On remand, the
court may sentence Carter for misdemeanor DUI. If the prosecution
instead seeks to retry Carter on the felony DUI charge, and Carter
raises a double jeopardy defense, the court must rule on that
defense. Id. at ¶ 32.
III. Operating a Motor Vehicle Without Insurance
¶ 11 Carter also contends that the district court constructively
amended the failure to present proof of insurance charge in the
complaint and information by instructing the jury on the elements
4
of a different and uncharged offense — operating a motor vehicle
without insurance.
A. Preservation and Standard of Review
¶ 12 Carter and the People agree that this issue was unpreserved.
Both note that Carter’s counsel failed to object to the court’s
instruction to the jury setting forth the elements of operating a
motor vehicle without insurance rather than failure to present proof
of insurance, or to the court’s verdict form for operating a motor
vehicle without insurance. Carter says this doesn’t matter because
the court constructively amended the charge, which is a
“structural” error requiring reversal in all circumstances. The
People respond that while there was a constructive amendment of
that charge, an error of this type isn’t structural, and we should
review for plain error.2
¶ 13 We have an independent, affirmative obligation to determine
whether a claim of error was preserved and to determine the
appropriate standard of review under the law, notwithstanding the
2 The People believe “[t]his issue was forfeited because defense
counsel expressly agreed to the compulsory insurance jury
instructions that [were] given.”
5
parties’ respective positions or concessions pertaining to those
issues. In re Marriage of Hogsett, 2018 COA 176, ¶ 32 n.3 (an
appellate court isn’t bound by a party’s concession regarding
preservation), aff’d sub nom. Hogsett v. Neale, 2021 CO 1; People v.
Carter, 2015 COA 36, ¶ 65 n.1 (J. Jones, J., specially concurring)
(same); People v. Corral, 174 P.3d 837, 839 (Colo. App. 2007) (an
appellate court isn’t bound by the parties’ agreement as to the
appropriate remedy for an error); see also Commonwealth v. Aviles,
931 N.E.2d 500, 504 n.3 (Mass. App. Ct. 2010); State v. Laune, 464
P.3d 459, 436 (Or. Ct. App. 2020) (the appellate court is obligated to
make its own preservation inquiry, notwithstanding any concession
by the state).
¶ 14 We conclude that Carter didn’t merely forfeit any claim of
error, he waived it, meaning it isn’t reviewable. But, in the
alternative, we hold that even if Carter didn’t waive the claim of
error, it is subject to review for plain error because a constructive
amendment isn’t a structural error. And we further conclude that
while there was a constructive amendment, the error wasn’t plain.
6
1. Waiver
¶ 15 The People charged Carter with failing to present proof of
insurance under section 42-4-1409(3)(a), C.R.S. 2020. The
elements of that offense are that (1) after an accident or request to
present evidence of a complying policy or certificate of
self-insurance in full force and effect as required by law following
any lawful traffic contact or during any traffic investigation by a
peace officer; (2) an owner or operator of a motor vehicle; (3) fails to
present such evidence. At trial, the prosecution introduced police
officer body-camera video showing an investigating officer asking
Carter for proof of insurance and Carter failing to present any.
¶ 16 At the jury instruction conference before testimony from the
last witness, the court asked counsel how they wanted to handle
the instructions, which they had reviewed.3 Carter’s attorney
responded, “We have very few that are not stipulated to. So I think
we can just talk about those, and then the rest of them there’s not
an objection from the defense side and there’s no objection from the
3 The record doesn’t say which side tendered any particular
instruction. But it is clear each side had reviewed a packet of
proposed instructions before the instruction conference.
7
DA.” (Emphasis added.) The court and counsel then discussed the
few proposed instructions as to which defense counsel had
concerns or objections. Those instructions didn’t include the
elemental instruction for the insurance charge or the related
instruction concerning proof of that charge, even though the
elemental instruction for the insurance charge didn’t recite the
elements for failure to present proof of insurance but instead
recited the elements for operating a motor vehicle without
insurance under section 42-4-1409(2). That instruction read as
follows:
The elements of the crime of operation without
insurance are:
1. That Mr. Carter,
2. in the State of Colorado, at or about the
date and place charged,
3. operated a motor vehicle,
4. on a public highway of this state,
5. without a complying policy or certificate of
self-insurance in full force and effect as
required by law.
After considering all of the evidence, if you
decide the prosecution has proven each of the
elements beyond a reasonable doubt, you
8
should find Mr. Carter guilty of operating
without insurance.
After considering all the evidence, if you decide
the prosecution has failed to prove any one or
more of the elements beyond a reasonable
doubt, you should find Mr. Carter not guilty of
operating without insurance.
¶ 17 This instruction therefore clearly labeled the offense “operation
without insurance,” not failure to present proof of insurance. And it
included elements differing from the originally charged offense: (1) it
required proof that Carter operated, rather than “owne[d] or
operat[ed],” see § 42-4-1409(3)(a), a motor vehicle; (2) it required
proof that Carter didn’t have insurance for the vehicle, not merely
that he didn’t present proof of insurance when asked; and (3) it
didn’t require proof of a request by a peace officer for proof of valid
insurance.
¶ 18 This elemental instruction was coupled with an instruction
relating to proof of the charge of “operation without insurance.” It
said,
As to the charge of operation without
insurance, testimony that an operator of a
motor vehicle failed to immediately present
evidence of a complying policy or certificate of
self-insurance in full force and effect as
required by law, when requested to do so by a
9
peace officer, gives rise to a permissible
inference that Mr. Carter did not have such a
policy or certificate.
A permissible inference allows, but does not
require, you to find a fact from proof of another
fact or facts, if that conclusion is justified by
the evidence as a whole. It is entirely your
decision to determine what weight shall be
given to the evidence.
You must bear in mind that the prosecution
always has the burden of proving each element
of the offense beyond a reasonable doubt, and
that a permissible inference does not shift that
burden to Mr. Carter.
¶ 19 This instruction tracked section 42-4-1409(5), which says an
inference of lack of insurance may be drawn as to the offense of
operating a motor vehicle without insurance under section 42-4-
1409(2) based on a driver’s failure to present proof of insurance
when asked for it.
¶ 20 So this instruction, too, labeled the offense “operation without
insurance.” And, as a logical matter and under the express
statutory language, such an instruction is not given in connection
with a charge of failure to present proof of insurance under section
42-4-1409(3)(a).
10
¶ 21 The verdict form for the charge was labeled “CHARGE OF
OPERATING WITHOUT INSURANCE.” And it twice more identified
the charge as “OPERATING WITHOUT INSURANCE.”
¶ 22 Following a break and testimony from the last witness, the
court and the attorneys went back on the record to discuss the
instructions, some of which had been revised based on the earlier
discussion. The court went through each instruction separately,
asking each attorney whether counsel objected. As to the two
instructions at issue, the following colloquy took place:
THE COURT: Number 17 is the elements of
operating a vehicle without insurance. Any
objection from the People?
[PROSECUTOR]: No.
THE COURT: From the defense?
[DEFENSE COUNSEL]: No.
THE COURT: And that is regarding the
operation [sic] a vehicle without insurance is
the permissible inference regarding insurance
policy [sic]. Any objection by the People?
[PROSECUTOR]: No.
THE COURT: From the defense?
[DEFENSE COUNSEL]: No.
(Emphasis added.)
11
¶ 23 They later covered the verdict forms.
THE COURT: Next is Count No. 3, jury verdict
form, Operating without Insurance. Any
objection from the People?
[PROSECUTOR]: No.
THE COURT: From the defense?
[DEFENSE COUNSEL]: No.
(Emphasis added.)
¶ 24 The prosecutor didn’t mention the insurance charge
specifically during closing argument. Defense counsel tried to
convince the jury that Carter wasn’t operating the vehicle at the
time of the events giving rise to the charges. (This was consistent
with Carter’s theory of the case instruction, which articulated this
theory as his only defense.) Defense counsel twice referred to the
insurance charge — once as “Driving Without Insurance” and later
as “driving while not having any insurance.”
¶ 25 Putting all this together, we conclude that Carter waived any
contention that the court erred by constructively amending the
charge.
¶ 26 “Waiver . . . is ‘the intentional relinquishment of a known right
or privilege.’” People v. Rediger, 2018 CO 32, ¶ 39 (quoting Dep’t of
12
Health v. Donahue, 690 P.2d 243, 247 (Colo. 1984)). It differs from
forfeiture, which is “the failure to make the timely assertion of a
right.” Id. at ¶ 40 (quoting United States v. Olano, 507 U.S. 725,
733 (1993)). And the consequences for either accordingly differ: if a
contention is waived, the appellate court won’t review it at all; if it is
merely forfeited, the appellate court may review it for plain error.
Id.¶ 27 We don’t presume a waiver; we presume to the contrary. Id. at
¶¶ 39, 46. But at the same time, a waiver can be implied; it doesn’t
need to be express. Id. at ¶ 42; accord Phillips v. People, 2019 CO
72, ¶ 21.
¶ 28 Rediger, like this case, involved a claim of a constructive
amendment. The charging document charged the offense under
one subsection of a statute, but the elemental instruction tracked a
different subsection of the same statute. Rediger, ¶¶ 7-8. (The
charged subsection required proof of an element that the instructed
charge didn’t, lessening the prosecution’s burden of proof. Id. at
¶ 51.) At the jury instruction conference, defense counsel said he
had read the proposed instructions but didn’t say anything about
the elemental instruction. Before the court read the instructions to
13
the jury, it asked whether defense counsel was “satisfied with the
instructions.” Defense counsel said, “Yes, Defense is satisfied.” Id.
at ¶ 10.
¶ 29 The supreme court held that defense counsel’s statement,
“standing alone,” didn’t show a waiver of the constructive
amendment issue. Id. at ¶ 41. It based this conclusion on (1) the
fact that there was only this one, equivocal statement; (2) that
statement related to the instructions as a whole; (3) there was no
record indication that the elemental instruction had been discussed
“at all”; and (4) there was no apparent reason for counsel not to
object the instruction. Id. at ¶¶ 41-43. Considering all the
circumstances, the court concluded that “neglect, not intent,
explain[ed]” counsel’s failure to object. Id. at ¶ 44; see also People
v. Smith, 2018 CO 33, ¶¶ 6, 16, 18 (no waiver under similar
circumstances).
¶ 30 This case is very different. Defense counsel expressly
indicated that she had been through the instructions to determine
which ones she was concerned with or objected to and which ones
she and the prosecutor “stipulated to.” The instructions and verdict
form at issue fall into the latter category. Further, the court went
14
through each instruction and the verdict forms one by one with
counsel. The court expressly identified the two insurance charge
instructions as relating to “operating a motor vehicle without
insurance” and the charge on the verdict form as “operating without
insurance.” Defense counsel said she didn’t object to any of them.
As well, the second instruction — relating to the permissible
inference — by its clear language related to the charge of operating
a motor vehicle without insurance: it is impossible to read that
instruction as potentially relating to a charge of failure to present
proof of insurance. (As noted, the statute says clearly that this
inference applies to a charge of driving without insurance, but the
inference does not apply to a charge of failure to present proof of
insurance.) If all this weren’t enough to show that defense counsel
was aware that the charge had been changed, she twice in closing
argument demonstrated such knowledge by referring to the charge
as driving without insurance.
¶ 31 This case also differs from Rediger in that Carter’s counsel had
an obvious strategic reason not to object to the change in the
charge. Recall, Carter’s only defense was that he hadn’t driven the
vehicle. That would be a complete defense to a charge of operating
15
a motor vehicle without insurance because such a charge requires
proof of operating the vehicle. A charge of failure to present proof of
insurance, on the other hand, doesn’t require proof of operating the
vehicle; proof of ownership suffices. § 42-4-1409(3)(a) (“owner or
operator”). And there was evidence Carter owned the vehicle.
¶ 32 Allowing the charge to be changed presented another strategic
advantage for the defense. The only evidence that Carter didn’t
have insurance was the video showing the officer asking Carter for
proof of insurance and Carter failing to present it. That evidence
was unrebutted and unchallenged. For a charge of failure to
present proof of insurance, this would be direct evidence of the
offense. But it wouldn’t be for a charge of operating a motor vehicle
without insurance. Rather, as the jury instruction said, it would
instead be evidence from which the jury could, but was not required
to, infer a lack of insurance. So, given the nature of the evidence,
the charge of operating a motor vehicle without insurance left more
wiggle room for the defense than did a charge of failure to present
proof of insurance.
¶ 33 In sum, we conclude that the totality of the relevant
circumstances reveals far more than a single rote statement that
16
counsel was not objecting to the jury instructions as a whole, as in
Rediger. It shows knowledge that the charge had changed and a
decision to go along with it. This was a waiver. Cf. Richardson v.
People, 2020 CO 46, ¶¶ 6-10, 24-30 (alleged error of allowing
judge’s wife to serve on jury was waived where defense counsel was
aware the prospective juror was the judge’s wife but didn’t
challenge her for cause or use a peremptory challenge to exclude
her); Stackhouse v. People, 2015 CO 48, ¶ 16 (counsel waived
objection to closure of courtroom by remaining silent when the
court closed it; counsel was obviously aware of the issue)4; People v.
Tee, 2018 COA 84, ¶¶ 30-37 (counsel waived contention as to
pre-deliberation by jurors by expressing the concern but choosing
not to request a mistrial); People v. Gregor, 26 P.3d 530, 532-33
(Colo. App. 2000) (challenge to instruction barred by invited error
because defense counsel expressly approved that particular
instruction).
4 In Phillips v. People, 2019 CO 72, ¶¶ 26-29, the supreme court
recognized the continued validity of Stackhouse after Rediger.
17
¶ 34 But even if Carter didn’t waive this contention, we conclude in
the alternative that plain error review applies, that there was a
constructive amendment, and that the error wasn’t plain.5
5 The partial dissent chides us for considering Carter’s constructive
amendment contention for plain error after concluding that Carter
waived it. But we do so only in the alternative. See, e.g., People v.
Murray, 2018 COA 102, ¶ 45 (addressing contention for plain error
in the alternative after concluding that the contention was waived);
cf. Spectrum Stores, Inc. v. Citgo Petroleum Corp., 632 F.3d 938, 954
(5th Cir. 2011) (after determining that the district court lacked
subject matter jurisdiction, holding in the alternative that the
plaintiffs had failed to state a claim). There is no authority of which
we are aware that says an appellate court can’t, or even shouldn’t,
resolve contentions on alternative bases. Indeed, that practice is so
common that it would seemingly need no defense. See State v.
Robertson, 438 P.3d 491, 501-02 (Utah 2017) (explaining that
alternative holdings are common and serve legitimate purposes).
Nor is there any authority of which we are aware that says waiver is
an exception to a court’s ability to take such a belt and suspenders
approach. And we see no logical reason for such a rule — one that
would be completely at odds with notions of judicial efficiency. For
instance, an alternative holding may eliminate the need for further
time- and resource-consuming proceedings by the appellate court
in the event of a reversal on one issue by a higher court. Similarly,
such a holding may enable a higher court to affirm the lower court’s
ruling notwithstanding its disagreement with one basis for the lower
court’s decision, eliminating the need for further proceedings. Nor
does it matter, as the partial dissent suggests, that the People don’t
argue waiver. After all, as the partial dissent correctly notes, “[w]e
have an affirmative and independent obligation to determine
whether a claim of error was preserved and what the proper
standard of review is.” See infra ¶ 75.
18
2. Structural Error versus Plain Error
¶ 35 If not waived, we first review de novo whether a constructive
amendment occurred. See People v. Rail, 2016 COA 24, ¶¶ 48-49,
aff’d on other grounds, 2019 CO 99. If it did, we must then
determine whether the constructive amendment requires reversal.
Determining the correct test for reversal depends on whether we
conclude that constructive amendments can be reviewed for plain
error or are, instead, structural errors that require reversal in all
circumstances.
¶ 36 Our supreme court has never held that a constructive
amendment constitutes structural error. See Rediger, ¶ 47 n.4
(“Because we conclude that the error was plain, we need not
consider whether a constructive amendment amounts to structural
error.”). But divisions of this court have held (or assumed) on
several occasions that an error in allowing a constructive
amendment is “per se reversible,” meaning that it is always
reversible. See Rail, ¶ 50; People v. Vigil, 2015 COA 88M, ¶ 30,
aff’d, 2019 CO 105; People v. Gallegos, 260 P.3d 15, 26 (Colo. App.
2010); People v. Pahl, 169 P.3d 169, 177 (Colo. App. 2006); People v.
Huynh, 98 P.3d 907, 911 (Colo. App. 2004); People v. Foster, 971
19
P.2d 1082, 1087 (Colo. App. 1998). In effect, these divisions treated
this kind of error as what current jurisprudence on standards of
review calls “structural.” Because the result in this case differs
depending on whether the error is structural, we must decide
whether this line of Colorado Court of Appeals case law is correct.
¶ 37 Foster is the first case in which a division of this court held
that a constructive amendment is “per se reversible,” and all the
subsequent cases so holding can trace their lineage to Foster. In
Foster, the division cited United States v. Wright, 932 F.2d 868 (10th
Cir. 1991), overruled on other grounds by United States v. Flowers,
464 F.3d 1127 (10th Cir. 2006), for the proposition that a
constructive amendment “is reversible per se.” 971 P.2d at 1087.
That case did so hold. It cited earlier Tenth Circuit decisions which
ultimately relied on Stirone v. United States, 361 U.S. 212 (1960).
Stirone, then, is the fountainhead of this maxim.
¶ 38 But does Stirone actually support the notion that a
constructive amendment always requires reversal? And even if it
does, is such a rule consistent with intervening Supreme Court
precedent? The answer to the first question is “maybe,” but the
answer to the second is “no.”
20
¶ 39 In Stirone, the district court allowed the prosecution to prove
the offense charged in the indictment with evidence of acts different
from those charged in the indictment. Id. at 213-14. The Court
held that this ran afoul of the Fifth Amendment’s requirement that
a prosecution be commenced by an indictment from a grand jury;
only a grand jury can amend an indictment. Id. at 215-17 (citing
Ex parte Bain, 121 U.S. 1, 10 (1887)). The Court regarded a
violation of this grand jury indictment requirement as “far too
serious to be treated as nothing more than a variance and then
dismissed as harmless error.” Id. at 217. From this, courts derived
the automatic reversal rule for constructive amendments (even
though the error in Stirone was preserved).
¶ 40 We note initially that Stirone was based on the Fifth
Amendment’s grand jury indictment clause, a provision of the
United States Constitution that doesn’t apply to state prosecutions.
Alexander v. Louisiana, 405 U.S. 625, 633 (1972); Hurtado v.
California, 110 U.S. 516, 538 (1884); Losavio v. Robb, 195 Colo.
533, 536 n.2, 579 P.2d 1152, 1154 n.2 (1978). Nor, for that matter
is there any right to a grand jury indictment under the Colorado
Constitution. Losavio, 195 Colo. at 536, 579 P.2d at 1154. This
21
isn’t to say that a constructive amendment doesn’t give rise to a
constitutional violation — it has been said to be a due process
violation, see People v. Deutsch, 2020 COA 114, ¶ 25 — but it is to
say that the right to a grand jury indictment that Stirone deemed so
important that an infringement couldn’t be harmless simply isn’t
implicated in a state prosecution.
¶ 41 More importantly, in United States v. Cotton, 535 U.S. 625(2002), the Court significantly weakened, if not outright eliminated,
Stirone’s basis for its apparent automatic reversal rule. It did so by
overruling Ex parte Bain, on which Stirone so heavily relied, in so far
as that case treated defects in indictments as “jurisdictional.” Id. at
629-31; see also People v. Rodriguez, 914 P.2d 250, 257 (Colo.
1996) (observing that Stirone was premised on federal courts’
jurisdiction). In the course of doing so, the Court observed that in
Stirone the defendant had objected in the trial court. Cotton, 535
U.S. at 631. The Court then went on to apply plain error review to
a defect in an indictment that under Ex parte Bain would have been
treated as a jurisdictional defect requiring reversal. Id. at 631-32.
And in doing that, it relied on much more recent Supreme Court
precedent expanding the application of plain error review — Olano,
22
507 U.S. 725, and Johnson v. United States, 520 U.S. 461 (1997).
Cotton, 535 U.S. at 631-32.
¶ 42 And that brings us to the most important reason that Stirone
can’t be relied on as dictating a rule of “per se” or “automatic”
reversal for constructive amendments: such a rule can’t be squared
with much more recent Supreme Court authority.
¶ 43 In People v. Novotny, 2014 CO 18, the Colorado Supreme
Court discussed the evolution of United States Supreme Court
precedent distinguishing among constitutional errors. Under that
precedent, there are trial errors, which may be deemed harmless,
and structural errors, which may not be. Id. at ¶¶ 17-20. The
supreme court held that, under current jurisprudence, apart from
structural error there is no error, constitutional or otherwise,6 that
requires automatic reversal; rather, all errors that aren’t structural
must be assessed using the appropriate case-specific, outcome-
determinative test. Id. at ¶¶ 21-22, 27. Indeed, this conclusion
necessarily follows from the Court’s decisions in Olano, Johnson,
6The exception is when there is an express legislative mandate.
People v. Abu-Nantambu-El, 2019 CO 106, ¶ 24; People v. Novotny,
2014 CO 18, ¶¶ 26, 27.
23
and Neder v. United States, 527 U.S. 1, 8-15 (1999), among other
cases.
¶ 44 So the question becomes: Does Stirone or any other controlling
authority hold that allowing a constructive amendment is a
structural error? The United States Supreme Court has never
included constructive amendments when listing those errors
considered structural. See, e.g., Weaver v. Massachusetts, 582 U.S.
___, ___, 137 S. Ct. 1899, 1908 (2017); United States v. Gonzalez-
Lopez, 548 U.S. 140, 148-49 (2006); Neder, 527 U.S. at 8; Arizona
v. Fulminante, 499 U.S. 279, 309-10 (1991). Nor has the Colorado
Supreme Court ever done so. See, e.g., Hagos v. People, 2012 CO
63, ¶ 10; Lehnert v. People, 244 P.3d 1180, 1185 (Colo. 2010).
¶ 45 Because of the relatively recent developments in the Supreme
Court’s constitutional error jurisprudence, other courts have
concluded that the error addressed in Stirone is not structural.
E.g., United States v. Allen, 406 F.3d 940, 943-45 (8th Cir. 2005)
(en banc).7 The Colorado Supreme Court hasn’t gone so far as to
7Candidly, some courts continue to apply the reversible per se rule,
but as far as we can tell, they do so without analyzing its continued
validity.
24
expressly so hold, but it has done the next best thing. In People v.
Weinreich, 119 P.3d 1073 (Colo. 2005), the court reviewed a
constructive amendment for plain error. See also People v. Weeks,
2015 COA 77, ¶ 53 (applying plain error review to a constructive
amendment, citing Weinreich); § 16-10-202, C.R.S. 2020 (a variance
from a charging document is not grounds for acquittal unless it “is
material to the merits of the case or may be prejudicial to the
defendant”). The court did so in Rediger, ¶ 47 n.4, as well, though
it said it didn’t need to consider whether such an error is
structural.
¶ 46 Controlling authority holds that structural errors are limited
to those errors that “affect[] the framework within which the trial
proceeds” and “defy analysis by ‘harmless-error’ standards.”
Fulminante, 499 U.S. at 309-10; accord Weaver, 582 U.S. at ___,
137 S. Ct. at 1907-08. Different kinds of errors may not be
amenable to harmless error analysis for different reasons. First,
harm may be “irrelevant to the basis underlying the right,” such as
when “the right at issue is not designed to protect the defendant
from erroneous conviction but instead protects some other
interest.” Weaver, 582 U.S. at ___, 137 S. Ct. at 1908 (giving the
25
defendant’s right to conduct his own defense as an example).
Second, “the effect of the error [may be] simply too hard to
measure.” Id. (giving the right to choose one’s attorney as an
example). And third, the error may “always result[] in fundamental
unfairness.” Id. (giving denial of counsel and failing to give a
reasonable doubt instruction as examples).
¶ 47 A constructive amendment doesn’t fit any of these categories.
Such an amendment implicates the defendant’s right to be
protected from an erroneous conviction: it doesn’t protect some
other interest. And as the facts of this case clearly demonstrate,
see Part III.B infra, the effect of such an error isn’t necessarily too
hard to measure and doesn’t always result in fundamental
unfairness. See United States v. Jingles, 702 F.3d 494, 502 (9th
Cir. 2012) (a constructive amendment claim is, after Cotton,
reviewable for plain error if not objected to at trial); United Sates v.
Brandao, 539 F.3d 44, 58-59 (1st Cir. 2008) (noting the shift among
the federal circuit courts away from regarding constructive
amendment as structural error).
¶ 48 We therefore conclude that allowing a constructive
amendment isn’t structural error. We turn, then, to whether there
26
was a constructive amendment and, if so, whether allowing it was
plain error.
¶ 49 Plain error is error that is obvious and that so undermined the
fundamental fairness of the trial as to cast serious doubt on the
reliability of the judgment of conviction. Hagos, ¶ 14. The
defendant has the burden of showing that any error was plain.
People v. Conyac, 2014 COA 8M, ¶ 54; People v. Boykins, 140 P.3d
87, 95 (Colo. App. 2005).
B. Analysis
¶ 50 Carter and the People agree that the district court allowed a
constructive amendment of the complaint. Although we are not
bound by the parties’ concessions and must independently analyze
this issue, we come to the same conclusion.
¶ 51 “A constructive amendment occurs when a court ‘changes an
essential element of the charged offense and thereby alters the
substance of the charging instrument.’” People v. Hoggard, 2017
COA 88, ¶ 27 (quoting Rodriguez, 914 P.2d at 257),8 aff’d on other
8 Another kind of variance — a simple variance — occurs “when the
elements of the charged crime remain unchanged, ‘but the evidence
presented at trial proves facts materially different from those alleged
in the indictment.’” People v. Vigil, 2015 COA 88M, ¶ 30 (quoting
27
grounds, 2020 CO 54. This violates a defendant’s constitutional
right to due process because it presents a risk that the defendant
will be convicted of an offense or conduct that was not originally
charged. See Deutsch, ¶ 25; Hoggard, ¶ 27.
¶ 52 Even where the elements of the charged and instructed
offenses are different, a constructive amendment has not occurred
if the charged offense is a lesser included offense of the instructed
offense. See Hoggard, ¶ 33; People v. Riley, 2015 COA 152, ¶ 16.
This is because, despite the instructional error, the jury will
necessarily have considered all the elements of the charged offense
(as well as the additional elements of the instructed offense). But
that isn’t what happened in this case.
¶ 53 The complaint and information charged Carter with violating
section 42-4-1409(3) — failure to present proof of insurance. As
noted, the elements of this offense, as relevant in this case, are that
(1) after an accident or request to do so following any lawful traffic
contact with a peace officer; (2) an owner or operator of a motor
People v. Pahl, 169 P.3d 169, 177 (Colo. App. 2006)), aff’d on other
grounds, 2016 CO 105.
28
vehicle; (3) fails to present evidence of motor vehicle insurance in
full force and effect as required by law. Id.¶ 54 The district court didn’t instruct the jury on these elements.
Instead, the court instructed the jury on the elements of operating a
motor vehicle without insurance. See § 42-4-1409(2). As laid out
in the jury instructions, the elements of this offense were that
Carter “[1] operated a motor vehicle, [2] on a public highway of this
state, [3] without a complying policy or certificate of self-insurance
in full force and effect as required by law.”
¶ 55 Thus, the elements of the charged and instructed offenses
differed. To prove the charged offense (failure to present proof of
insurance), the prosecution had to prove that Carter failed to
present proof of insurance to the officer, regardless of whether his
vehicle was insured. To prove the instructed offense, the
prosecution had to prove that Carter’s vehicle was actually
uninsured when he drove it. These offenses prohibit different
conduct — one prohibits failing to present proof of insurance and
the other driving without insurance in the first place. Cf. People v.
Martinez, 179 P.3d 23, 24-25 (Colo. App. 2007) (rejecting an
argument that the offenses of failing to present proof of insurance
29
and driving without insurance must be interpreted together and
instead holding that they are separate offenses with distinct
elements).
¶ 56 Failure to present proof of insurance isn’t a lesser included
offense of operating a motor vehicle without insurance. It is true
that a jury’s determination that the defendant is guilty of operating
a motor vehicle without insurance necessarily means that the
defendant could not have presented evidence of insurance when the
officer asked him for it. But it doesn’t necessarily mean that the
jury found that the defendant did not actually present evidence of
insurance when asked. Put differently, a finding of guilt of
operating a motor vehicle without insurance will not always support
a finding of guilt for failing to present proof of insurance. An
individual who is guilty of driving without insurance may not have
committed the offense of failure to present proof of insurance if he
was stopped by police and never asked to present proof of
insurance. Practically, these circumstances may be unlikely to
occur. Ordinarily, an officer will discover that a driver is uninsured
by the driver failing to present proof of insurance when asked. But
that point isn’t relevant to our analysis (at this juncture). What
30
matters is that a jury’s determination that a driver drove without
insurance doesn’t necessarily mean that the fact finder found that
the driver also failed to present proof of insurance when asked.
¶ 57 So there was error and that error was obvious.9 But the error
doesn’t meet the third prong of the plain error test. The jury found
that Carter didn’t have insurance for the vehicle. And it necessarily
so found based solely on the inference it could draw from Carter’s
failure to present proof of insurance (for which Carter was charged).
An officer’s body-camera video showed that she asked Carter for
proof of insurance, but Carter didn’t provide any. These facts were
uncontested, and no evidence was presented that didn’t relate to
the original charge. Carter’s only defense was that he wasn’t the
driver; the jury obviously rejected that defense. Therefore, there is
no reasonable possibility that the error was prejudicial. People v.
Miller, 113 P.3d 743, 750 (Colo. 2005) (“[A]n erroneous jury
instruction does not normally constitute plain error where the issue
9“An error is obvious when it contravenes a clear statutory
command, a well-settled legal principle, or Colorado case law.”
Thompson v. People, 2020 CO 72, ¶ 54. Colorado case law does not
permit a constructive amendment absent the defendant’s consent.
31
is not contested at trial or where the record contains overwhelming
evidence of the defendant’s guilt.”).
¶ 58 The fact remains that the jury found Carter guilty of operating
a motor vehicle without insurance, not failure to present proof of
insurance. The mittimus, however, shows a conviction for failure to
present proof of insurance. It needs to be corrected.
IV. Conclusion
¶ 59 The conviction for felony DUI is reversed, the conviction for
operating a motor vehicle without insurance is affirmed, and the
case is remanded to the district court to correct the mittimus to
reflect the conviction under section 42-4-1409(2) rather than
section 42-4-1409(3)(a) and for further proceedings consistent with
this opinion.
JUDGE BERGER concurs.
JUDGE J. JONES concurs dubitante.
JUDGE PAWAR concurs in part and dissents in part.
32
J. JONES, J., concurring dubitante.1
¶ 60 As to Carter’s felony DUI conviction, Linnebur v. People, 2020
CO 79M, controls both the question of error and the requirement of
reversal. I write separately, however, because, in my view, the
majority in Linnebur failed to account for United States Supreme
Court and Colorado Supreme Court precedent in determining that
the error of omitting the prior convictions element from the
elemental instruction on the felony DUI offense requires reversal in
all circumstances. As I explain below, such an error isn’t
structural. Therefore, it should be evaluated under the appropriate,
outcome-determinative standard of reversal.
1“Dubitante” is a Latin word meaning “[d]oubting.” Black’s Law
Dictionary 631 (11th ed. 2019). In a dubitante opinion, a judge
may indicate doubt about the majority’s rationale or result without
dissenting from either. Or, as is the case with this separate
opinion, a judge may believe that a result is dictated by precedent
but doubt that the precedent is correct. See, e.g., United States v.
Jeffries, 692 F.3d 473, 483 (6th Cir. 2012) (Sutton, J., dubitante),
abrogated by Elonis v. United States, 575 U.S. 723 (2015); Majors v.
Abell, 361 F.3d 349, 355 (7th Cir. 2004) (Easterbrook, J.,
dubitante); Sherman v. State, 247 So. 3d 663, 664 (Fla. Dist. Ct.
App. 2018) (Makar, J., concurring in result dubitante), decision
quashed, Case No. SC18-949 (Fla. Apr. 16, 2019) (unpublished
order); see generally Jason J. Czarnezki, The Dubitante Opinion, 39
Akron L. Rev. 1 (2006).
33
¶ 61 In Linnebur, the court held that the felony DUI and DWAI
statutes’ requirement that the defendant was previously convicted
three or more times for DUI, DUI per se, or DWAI, see § 42-4-
1301(1)(a), (b), C.R.S. 2020, is an element of the felony offense that
must be found by a jury beyond a reasonable doubt. In that case,
the trial court found that fact. Without analysis, the supreme court
held that “[b]ecause Linnebur was sentenced for a crime different
from the one on which the jury’s verdict was based, his conviction
of felony DUI and sentence must be reversed.” Linnebur, ¶ 32
(citing Medina v. People, 163 P.3d 1136, 1142-42 (Colo. 2007)).
¶ 62 With respect, I believe that the court’s treatment of the error
as one requiring reversal in all circumstances is contrary to United
States Supreme Court and Colorado Supreme Court precedent.
¶ 63 In People v. Novotny, 2014 CO 18, the Colorado Supreme
Court held that outside the limited class of those errors deemed
“structural,” there is no error, constitutional or otherwise, that
requires reversal in all circumstances: “automatic” reversal outside
of structural error is no longer countenanced by Colorado law,
unless there is an “express legislative mandate” to that effect. Id. at
34
¶ 27.2 Rather, whether reversal is required for any nonstructural
error depends on application of the “appropriate case specific,
outcome-determinative analysis” — i.e., harmless error (ordinary or
constitutional) or plain error. Id.; accord People v. Abu-Nantambu-
El, 2019 CO 106, ¶ 22; Vigil v. People, 2019 CO 105, ¶¶ 17-22.
¶ 64 So, unless the error in this case — the same error as in
Linnebur — is structural, there should be no automatic reversal of
the felony conviction and sentence: review in this case should be for
plain error because Carter’s attorney didn’t object to the court
finding the fact of three previous convictions. See Hagos v. People,
2012 CO 63, ¶ 14 (“[W]e review all other errors, constitutional and
nonconstitutional, that were not preserved by objection for plain
error.”).
¶ 65 The error in this case — as Linnebur itself holds — was failing
to submit an element of the felony offense to the jury. In Neder v.
United States, 527 U.S. 1, 8-15 (1999), the United States Supreme
2 The court’s decision traces the development of harmless error
since the Supreme Court’s decision in Chapman v. California, 386
U.S. 18 (1967); under current law, constitutional errors are either
trial errors, which may be harmless, or structural errors, which
can’t be. People v. Novotny, 2014 CO 18, ¶¶ 18-21, 26.
35
Court held that such an error is not structural. (Indeed, the Court
said, “[t]he error at issue here — a jury instruction that omits an
element of the offense — differs markedly from the constitutional
violations we have found to defy harmless-error review.” Id. at 8.)
And in Griego v. People, 19 P.3d 1, 8 (Colo. 2001), the Colorado
Supreme Court followed Neder and held that “when a trial court
misinstructs the jury on an element of an offense, either by omitting
or misdescribing that element, that error is subject to constitutional
harmless error or plain error analysis and is not reviewable under
structural error standards.” As recently as 2011, the court said,
“[i]t is now well-settled that error in the form of a misdescription or
omission of an element of an offense does not, for that reason alone,
constitute structural error.” Tumentsereg v. People, 247 P.3d 1015,
1018 (Colo. 2011) (citing Neder and Griego).
¶ 66 Neder and Griego would seem to dictate the standard of
reversal applicable in this case, and in Linnebur. Nonetheless, the
majority in Linnebur treated the error of omitting an element as
structural, without labeling it as such, and without acknowledging
Neder or Griego.
36
¶ 67 In concluding that reversal was required without application of
an appropriate, outcome-determinative standard, the majority cited
Medina. But Medina is clearly distinguishable. In that case, the
offense for which the court entered a judgment of conviction was
never even charged. 163 P.3d at 1140-41 (distinguishing Neder and
Griego on this basis). And no one — not the jury or the court —
ever found the element in question. Id. at 1137; see Lehnert v.
People, 244 P.3d 1180, 1186 n.7 (Colo. 2010) (limiting Medina to
these facts). In fact, Medina expressly recognized the distinction
between the error in that case and the error of misdescribing or
omitting an element of an offense, distinguishing Neder and Griego
on that basis. Id. In Linnebur (as in this case), however, the felony
offense was charged, and the court found the element of prior
convictions.
¶ 68 Nor is the error in this case (and in Linnebur) like the error in
Sullivan v. Louisiana, 508 U.S. 275 (1993), on which the court relied
in Medina to conclude that the failure of a charge or verdict (by any
fact finder) constituted structural error. The error in Sullivan was
in giving the jury an instruction defining reasonable doubt that was
unconstitutional because it set the bar too low. Id. at 277. That
37
didn’t happen in this case (or Linnebur). As well, in Neder, the
Supreme Court expressly repudiated some of the Court’s reasoning
in Sullivan — that “harmless-error analysis cannot be applied to a
constitutional error that precludes the jury from rendering a verdict
of guilty-beyond-a-reasonable-doubt” — saying, “it cannot be
squared with our harmless-error cases.” Neder, 527 U.S. at 11.
But that was the reasoning relied on by the court in Medina, and
therefore Medina rests, perhaps, on a foundation of sand.3
¶ 69 One other case — Sanchez v. People, 2014 CO 29 — merits
discussion. In that case, the jury actually returned a verdict of not
guilty on a charge of sexual assault as part of a pattern of abuse,
but the jury indicated on a verdict form that the prosecution had
proved two of the six incidents of alleged abuse. Id. at ¶¶ 7-8. The
Colorado Supreme Court held that the instructions, including the
elemental instructions, special interrogatories, and verdict forms,
didn’t clearly show that the jury had found that the defendant had
3 This is not to say that I believe that Medina was necessarily
wrongly decided as to the remedy applied (reversal for structural
error). It is to say that its rationale — ultimately applied by
Linnebur to a different type of error — is arguably untenable under
Supreme Court case law post-dating Sullivan.
38
engaged in a pattern of sexual abuse. Id. at ¶¶ 3-8, 12-13, 16-17.
In other words, there was no clear guilty verdict. And the court
held that this error was structural. Id. at ¶ 19.
¶ 70 This case obviously involves a different type of error than that
in Sanchez. See Rail v. People, 2019 CO 99, ¶¶ 39-40 (discussing
the factual limitations of Sanchez). But in any event, Sanchez relied
on Medina and Sullivan in concluding that the error was structural.
More specifically, it relied on that portion of the rationale in Sullivan
that the Court later disavowed in Neder. Indeed, Sanchez didn’t cite
Neder or Griego, much less grapple with Neder’s rejection of a part
of Sullivan’s rationale. Sanchez, too, therefore rests on shaky
ground.
¶ 71 In sum, if I were writing on a clean slate, I would follow Neder
and Griego and hold that the error in this case isn’t structural. I
would then assess whether the error was plain. But I’m not writing
on a clean slate: as it now stands, Linnebur dictates reversal, even
though, in my view, it conflicts with Neder and Griego. See People v.
Washington, 2014 COA 41, ¶ 25 (where precedents conflict, the
court of appeals must follow the supreme court’s more recent
39
pronouncement).4 So I am left only to concur, while expressing the
hope that the Colorado Supreme Court will revisit its jurisprudence
on this point.
4 Neder is not controlling on this issue because states are free to
adopt standards of direct review for federal constitutional issues
that are more stringent than those adopted by federal courts. See,
e.g., Greene v. Georgia, 519 U.S. 145 (1996) (per curiam).
40
JUDGE PAWAR, concurring in part and dissenting in part.
¶ 72 I disagree with the majority’s constructive amendment
analysis for three reasons. First, I believe it is improper for the
majority to conclude that the constructive amendment issue was
waived and then proceed to address the merits of that issue.
¶ 73 Second, I disagree with the majority’s substantive waiver
analysis — Carter did not waive his constructive amendment
argument.
¶ 74 Third, although I agree with the majority that a constructive
amendment occurred, I disagree with the majority’s conclusion that
constructive amendments are subject to any kind of harmless error
review. I conclude that constructive amendments require automatic
reversal. The majority may be correct that, under the peculiar facts
of this case, the jury’s finding of guilt on the constructively
amended offense necessarily means it would have found Carter
guilty of the charged offense. But when a defendant is convicted of
an offense for which he was not charged, reversal is required.
I. The Majority’s Alternative Analyses
¶ 75 Neither Carter nor the prosecution raised the prospect of
waiver. Indeed, the prosecution argued on appeal that the
41
constructive amendment argument was unpreserved, not waived,
under People v. Rediger, 2018 CO 32. The majority is correct that
we are not bound by the parties’ representations on these issues.
We have an affirmative and independent obligation to determine
whether a claim of error was preserved and what the proper
standard of review is. But once we make that determination, we
should abide by it.
¶ 76 “[W]aiver extinguishes error, and therefore appellate review.”
Id. at ¶ 40. The majority concludes that Carter waived his
constructive amendment argument. The majority should stop
there. After all, if the issue is waived, the error is “extinguishe[d]”
and there is no error left to review. See id. But the majority does
not stop there. Instead, immediately after concluding that the
constructive amendment issue was waived, the majority addresses
the merits of that issue.
¶ 77 Resolving issues on alternative grounds may be appropriate
and even helpful in certain cases. This is not one of them. For the
sake of clarity, the majority should choose one ground on which to
resolve the constructive amendment issue. If it was waived, the
error is extinguished and further appellate review is unnecessary.
42
If the issue was not waived, there is no point in saying anything
about waiver — the parties did not raise it and it is completely
irrelevant to resolving the appeal. See In re Parental Responsibilities
Concerning M.W., 2012 COA 162, ¶ 35 (declining to address
argument that is unnecessary to resolve the appeal).
¶ 78 That said, because the majority concludes that Carter waived
his constructive amendment argument, I next explain why I think
he did not.
II. Carter Did Not Waive His Constructive Amendment Argument
¶ 79 Waiver is the intentional relinquishment of a known right.
Rediger, ¶ 39. We must “indulge every reasonable presumption
against waiver.” Id. (quoting People v. Curtis, 681 P.2d 504, 514
(Colo. 1984)). The majority does the opposite of indulging every
reasonable presumption against waiver — instead, the majority’s
conclusion that Carter waived this issue is based on an
unsupported inference.
¶ 80 Carter was charged with failure to present proof of insurance.
But the jury was instructed on and found him guilty of operating a
vehicle without insurance. Waiver here required that defense
counsel was not only aware of the discrepancy between the charged
43
offense and the constructively amended offense, but that defense
counsel intended to waive Carter’s right raise that discrepancy. Id.The record contains no such evidence.
¶ 81 The majority spends many paragraphs laying out facts that
establish defense counsel knew that the jury was being instructed
on the offense of operating a vehicle without insurance (the
constructively amended offense). I agree that defense counsel knew
that operating a vehicle without insurance was the offense
submitted to the jury. But the majority cites no facts, and there are
none in the record, indicating that defense counsel both realized
that this was not the charged offense and intended to relinquish the
right to instruct the jury on the charged offense. The majority
infers that defense counsel must have realized this discrepancy
merely because the discrepancy existed and the constructive
amendment inured to Carter’s benefit. Making this inference can
hardly be said to be “indulg[ing] every reasonable presumption
against waiver.” Id. at ¶ 39 (quoting Curtis, 681 P.2d at 514). In
my view, the equally if not more reasonable presumption under the
facts of this case is that nobody — not the prosecutor, defense
44
counsel, or trial court — realized that the original charge had been
changed.
¶ 82 In my view, this case is indistinguishable from Rediger.
Defense counsel certainly had a chance to review the instructions
and assented to instructing the jury on the constructively amended
offense. But there is nothing in the record indicating that defense
counsel understood that the instructions constituted a constructive
amendment. The fact that the constructive amendment was hiding
in plain sight is not enough to constitute a waiver under Rediger.
¶ 83 I would therefore conclude that Carter did not waive his
constructive amendment argument. Accordingly, I proceed to
explain why I disagree with the majority’s constructive amendment
analysis.
III. Constructive Amendments Are Reversible Per Se
¶ 84 I agree with the majority that the trial court erred by
constructively amending the charged offense. But unlike the
majority, I conclude that such an error is automatically reversible.
¶ 85 As the majority recognizes, numerous divisions of this court
have concluded that constructive amendments are reversible per se.
E.g., People v. Rail, 2016 COA 24, ¶ 50, aff’d on other grounds, 2019
45
CO 99; People v. Vigil, 2015 COA 88M, ¶ 30, aff’d, 2019 CO 105.
Yet the majority in this case comes to the opposite conclusion by
reasoning that only structural errors are reversible per se, and
constructive amendments are not structural errors. I disagree
because I conclude that constructive amendments fit squarely in
the category of structural error.
A. Our Supreme Court Has Not Addressed This Issue
¶ 86 The majority correctly notes that in People v. Weinreich, 119
P.3d 1073 (Colo. 2005), our supreme court held that a constructive
amendment constituted plain error. But the Weinreich court did
not frame the issue as whether a constructive amendment
occurred. Instead, the court framed the issue as whether “the trial
court committed plain and reversible error by failing to give an
instruction that substantially conformed to the existing reckless
child abuse resulting in death statute under which the prosecution
charged Weinreich.” Id. at 1076. Only in the summary paragraph
of its analysis did the supreme court characterize the error, for the
first and only time, as a constructive amendment. Id. at 1079.
¶ 87 By pointing this out, I do not mean to suggest that the
supreme court did not review a constructive amendment for plain
46
error — it did. But it is clear that the supreme court did not fully
consider or analyze whether constructive amendments constitute
structural errors. Indeed, because the supreme court reversed
under plain error, it was unnecessary to resolve that issue because
the outcome would have been the same if the error was structural.
¶ 88 More recently, our supreme court demonstrated in Rediger
that whether constructive amendments are structural errors is still
an open question. In that case, the supreme court framed the issue
from the beginning as examining whether a constructive
amendment required reversal. Rediger, ¶ 32 (“Rediger next asserts
that his conviction . . . resulted from an impermissible constructive
amendment of the charging document.”). And in reviewing the
constructive amendment for plain error, the court expressly avoided
deciding whether constructive amendments constitute structural
error, demonstrating that this was still an open question: “Because
we conclude that the error was plain, we need not consider whether
a constructive amendment amounts to structural error.” Id. at ¶ 47
n.4. If, as the majority here holds, the supreme court’s prior
precedents dictated that constructive amendments are not
47
structural errors, the supreme court would have presumably said
so in Rediger. It did not.
B. Constructive Amendments Are Structural Errors
¶ 89 So, our supreme court has not ruled on whether constructive
amendments are structural errors.1 The question then becomes
whether constructive amendments are the type of error that should
be classified as structural. The majority says no. I say yes.
¶ 90 The majority rightly states that structural errors are only
those that “affect[] the framework within which the trial proceeds”
and “defy analysis by ‘harmless-error’ standards.” Arizona v.
Fulminante, 499 U.S. 279, 309-10 (1991). The majority then
identifies three ways in which errors may defy harmless error
analysis: (1) harm may be irrelevant to the basis underlying the
right; (2) the effect of the harm may be too hard to measure; and (3)
the error may always result in fundamental unfairness. See Weaver
v. Massachusetts, 582 U.S. ___, ___, 137 S. Ct. 1899, 1908 (2017).
1 I take the majority’s point that neither the United States Supreme
Court nor our supreme court has included constructive
amendments when listing examples of structural errors. But
neither has either court held that constructive amendments are not
structural errors.
48
¶ 91 I agree with the majority that the first category does not apply
to constructive amendments. But I disagree with the majority on
the second and third categories.
1. Measuring the Harm of Constructive Amendments is Too Hard
¶ 92 When a constructive amendment occurs at trial, a verdict is
rendered on elements that the defendant had no notice of until trial,
and usually after the evidence is closed. This means that the
defendant prepared for and defended himself at trial based on an
incorrect understanding of what elements would be submitted to
the jury. This makes it nearly impossible to measure the effect of
the error. How can a reviewing court say that the evidence of a
defendant’s guilt was overwhelming when that evidence was
introduced, admitted, and challenged before the defendant (or the
prosecution and trial court, for that matter) knew what the
elements of the offense were?
¶ 93 Any harmlessness analysis will turn on a reviewing court’s
evaluation of the strength of the admitted evidence. But the
elements of the charged offense drive the presentation of evidence.
If the elements change, what evidence is relevant and challenged
will almost certainly change, too. This means that any
49
harmlessness analysis in a constructive amendment case will
require a reviewing court to evaluate how strongly the evidence the
parties introduced on the charged offense supports the jury’s
verdict on the different, constructively amended offense — it will be
impossible for the reviewing court to know what evidence the
parties might have introduced if the constructively amended offense
had been charged in the first place. Without that information, I do
not see how a reviewing court can properly determine whether the
evidence of the defendant’s guilt was so strong that the constructive
amendment was harmless.
2. Constructive Amendments are Fundamentally Unfair
¶ 94 Furthermore, a constructive amendment always deprives the
defendant of the fundamental constitutional right to notice of the
charges against him. See United States v. Miller, 891 F.3d 1220,
1237 (10th Cir. 2018) (holding that “[t]he constructive amendment
of an indictment violates [a defendant’s] Sixth Amendment right to
receive notice of [the] charges” against him, albeit while reviewing a
constructive amendment argument for plain error); People v. Melillo,
25 P.3d 769, 790 (Colo. 2001) (“The right of an accused to notice of
the charges which have been made against him constitutes a
50
fundamental constitutional guarantee and lies at the foundation of
due process of law.” (quoting People v. Cooke, 186 Colo. 44, 46, 525
P.2d 426, 428 (1974))).
¶ 95 The majority believes this does not matter here because, under
the unique facts of this case, we can measure the harm, and the
constructive amendment did not result in fundamental unfairness.
But this ignores the fact that a constructive amendment always
deprives a defendant of his fundamental constitutional right to
notice of the charged offense. See Miller, 891 F.3d at 1237; Melillo,
25 P.3d at 790. I conclude that depriving a defendant of a
fundamental constitutional right that “lies at the foundation of due
process of law,” Melillo, 25 P.3d at 790 (quoting Cooke, 186 Colo. at
46, 525 P.2d at 428), is always fundamentally unfair. I would
therefore follow other divisions of this court and hold that a
constructive amendment is reversible per se and reverse Carter’s
insurance conviction.
¶ 96 I concur in all other parts of the majority’s opinion.
51