v. People

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ADVANCE SHEET HEADNOTE
June 8, 2020
2020 CO 49No. 18SC144, Campbell v. People—Confrontation Clause—Constructive
Amendment—Habitual Offender.
The supreme court reviews whether the trial court plainly erred by
permitting an expert to testify about a DNA profile developed by a non-testifying
analyst. The court holds that any error in allowing the expert to testify about the
DNA profile was not plain at the time of trial or the time of appellate review.
The supreme court also reviews whether the prosecution constructively
amended the habitual offender charge against the defendant by mislabeling one
of the defendant’s prior felony convictions in the charging document. The court
concludes that the prosecution adequately alleged the defendant was convicted of
a specific felony and proved that prior conviction as alleged. Accordingly, the
supreme court concludes the mislabeled prior felony resulted in a simple variance
that does not require reversal.
The court affirms the judgment of the court of appeals and remands the case
with directions.
The Supreme Court of the State of Colorado
2 East 14th Avenue • Denver, Colorado 80203
2020 CO 49Supreme Court Case No. 18SC144
Certiorari to the Colorado Court of Appeals
Court of Appeals Case No. 14CA1097
Petitioner:
Brandon D. Campbell,
v.
Respondent:
The People of the State of Colorado.
Judgment Affirmed
en banc
June 8, 2020
Attorneys for Petitioner:
Megan A. Ring, Public Defender
Chelsea E. Mowrer, Deputy Public Defender
Denver, Colorado
Attorneys for Respondent:
Philip J. Weiser, Attorney General
Elizabeth Rohrbough, Senior Assistant Attorney General
Denver, Colorado
JUSTICE MÁRQUEZ delivered the Opinion of the Court.
JUSTICE GABRIEL concurs in part and dissents in part, and JUSTICE HOOD
and JUSTICE HART join in the partial concurrence and partial dissent.
¶1 During Brandon D. Campbell’s trial for burglary, an expert from the Denver
Crime Lab testified that a DNA sample taken from Campbell matched a DNA
profile developed from a soda can found at the burglary scene as well as a profile
developed from a partially eaten plum found at another residential burglary. The
plum profile had been developed at an out-of-state lab; the technician who tested
the plum did not testify. Although Campbell objected to evidence of the other
burglary on CRE 404(b) grounds, he did not argue that allowing the Denver Crime
Lab expert to testify about the plum profile violated his confrontation rights. The
jury convicted Campbell of second degree burglary and first degree criminal
trespass.1
¶2 The People also charged Campbell with three habitual offender counts. In
its amended complaint, the prosecution identified one of Campbell’s prior felony
convictions by case number, jurisdiction, and date, but mislabeled the conviction
in that case as “Possession of a Schedule IV Controlled Substance” when instead
he had been convicted of felony trespass. At the habitual criminal hearing, the
prosecution presented the records associated with the case number identified in
the amended complaint and established that Campbell had been convicted of
1 The court of appeals vacated Campbell’s separate conviction for theft; that
conviction is not at issue here.
2
felony trespass. Although the defense acknowledged receiving the records in
discovery and did not object to their admission, it argued that the prosecution
constructively amended the charging document by failing to prove Campbell had
been convicted of possession of a controlled substance as alleged in the amended
complaint. The trial court found that, despite the mislabeled offense, Campbell
had adequate notice of the charges. It therefore adjudicated Campbell a habitual
offender.
¶3 Campbell appealed, arguing for the first time that the admission of the
Denver Crime Lab expert’s surrogate testimony about the plum DNA profile
violated his confrontation rights. Campbell also renewed his contention that the
trial court erroneously allowed the prosecution to constructively amend the
habitual offender charge against him. The court of appeals rejected both
contentions.
¶4 We granted Campbell’s petition for a writ of certiorari to review his
Confrontation Clause and constructive amendment claims.2 We now hold that
2 Specifically, we granted certiorari review on the following issues:
1. Whether the district court plainly erred when it allowed a DNA
expert to give surrogate expert testimony about DNA profile
results that she did not participate in testing.
3
(1) any error in allowing the Denver Crime Lab expert to testify about the plum
DNA profile was not plain, and (2) the mislabeled offense in the habitual offender
count did not result in a constructive amendment requiring reversal. Accordingly,
we affirm the judgment of the court of appeals and remand with directions to
return the case to the trial court for resentencing and correction of the mittimus in
accordance with the court of appeals’ decision.
I. Facts and Procedural History
¶5 As the victim in this case returned home one night, he opened his garage
door to discover a car that did not belong to him and several strangers in his
garage. The victim’s home had been ransacked, and approximately $30,000 in
property had been taken. The burglars fled, and the victim could not identify
them. As police searched the home for evidence, the victim found an opened soda
can that had not been consumed by him or his family. A technician at the Denver
Police Department Crime Laboratory analyzed a sample from the mouth of the
can and created a DNA profile that was matched to Campbell’s DNA profile in the
Colorado Bureau of Investigation’s CODIS database.
2. Whether the prosecution constructively amended the complaint
when it charged a specific felony in a habitual offender count but
introduced evidence of a different felony at the habitual offender
hearing.
4
¶6 Campbell was arrested and charged with burglary, theft, and criminal
trespass, along with three habitual criminal counts under section 18-1.3-801, C.R.S.
(2019). The prosecution obtained another DNA sample from Campbell to confirm
the CODIS match. After providing the sample, Campbell filed a “Request for Live
Testimony from All Laboratory Employees and Technicians” under section
16-3-309(5), C.R.S. (2019), which requires the prosecution to call laboratory
technicians if the defendant requests such testimony at least fourteen days before
trial. Campbell’s request sought testimony from “any employee or technician
from the Colorado Bureau of Investigation or any employee of the Denver Police
Department” involved in testing.
¶7 The DNA profile from the soda can was later matched to a DNA profile
developed from a partially eaten plum discovered at the scene of another
residential burglary. The plum evidence had been tested at a lab in Virginia, and
the DNA profile was developed there.
¶8 The DNA analyst from the Denver Crime Lab then compared Campbell’s
DNA sample with the profiles developed from the soda can and the plum and
determined that they all matched. The prosecution notified the defense of the
testing and results. Campbell never filed an additional or amended request for
live testimony requesting that the Virginia analyst testify. Instead, Campbell
moved to exclude the evidence of the other burglary, including the plum DNA
5
profile, under CRE 404(b). The court denied the motion and allowed the
prosecution to introduce evidence of the later burglary to show identity.
A. Trial
¶9 At trial, the defense renewed its objection to the introduction of evidence
from the later burglary on CRE 404(b) and due process grounds. The court
overruled the objection and allowed the DNA analyst from the Denver Crime Lab
to testify as an expert.
¶10 The expert explained that she developed the DNA profiles for the soda can
sample and Campbell’s sample, but did not participate in the Virginia lab’s testing
of the plum sample. She testified that Campbell’s profile, the soda can profile, and
the plum profile all matched.
¶11 On cross-examination, the expert acknowledged that DNA can be
transferred and that it is not possible to determine when or how DNA was
deposited on an object. She also conceded that both the soda can and plum
samples tested negative for saliva and that she could not say the DNA came from
Campbell’s saliva, only that the DNA profile matched Campbell’s.
¶12 During closing arguments, defense counsel did not dispute that it was
Campbell’s DNA on the soda can and the plum, but instead argued that the
prosecution failed to prove that Campbell had deposited the DNA on either object
6
during the burglaries. The jury ultimately convicted Campbell of second degree
burglary, theft, and first degree criminal trespass.
B. Habitual Offender Hearing
¶13 The matter then proceeded to a hearing on the habitual criminal charges.
One of the habitual offender counts alleged that Campbell was convicted of a
felony in case number 06CR3890 in Denver District Court on September 14, 2006,
but mislabeled the conviction in that case as “Possession of a Schedule IV
Controlled Substance.” In fact, Campbell’s conviction in case number 06CR3890
was for felony trespass.
¶14 During the hearing on the habitual offender charges, the prosecution
introduced into evidence the “pen pack”3 corresponding to case number 06CR3890
that had been provided to the defense in discovery. These records plainly reflected
that Campbell’s prior conviction associated with Denver District Court case
number 06CR3890 concerned felony trespass, not possession of a controlled
substance.
3 By statute, the prosecution may submit authenticated copies of records of a
defendant’s prior felony convictions and incarcerations as prima facie evidence of
the fact of the convictions and the defendant’s identity. § 18-1.3-802, C.R.S. (2019).
These records are commonly called a penitentiary packet, or “pen pack.”
7
¶15 Defense counsel did not object to the admission of the pen pack. Instead,
during closing, counsel argued that the prosecution failed to prove that Campbell
had been convicted of possession of a controlled substance as alleged in the
information. The parties and the court agreed this was “a notice issue.” The trial
court concluded that Campbell was not prejudiced by the variance because the
prosecution alleged and proved that Campbell was convicted of “a felony.” The
court proceeded to adjudicate Campbell a habitual criminal, concluding that the
prosecution had shown beyond a reasonable doubt that Campbell had sustained
three prior felony convictions.
C. Appeal
¶16 On appeal, Campbell argued that (1) allowing the Denver Crime Lab expert
to testify about the plum profile violated his confrontation rights and (2) the
prosecution constructively amended the habitual criminal charge by identifying
the prior conviction in 06CR3890 as “Possession of a Schedule IV Controlled
Substance” in the information but proving instead the prior conviction in that case
was for felony trespass at the habitual criminal hearing. The court of appeals
rejected both arguments. People v. Campbell, No. 14CA1097, ¶¶ 16, 64 (Feb. 1, 2018).
¶17 First, the division reasoned that Campbell failed to preserve the
confrontation claim because his pretrial request for testimony referred only to
personnel from the Colorado Bureau of Investigation and the Denver Police
8
Department, and he failed to object to the plum profile testimony on Confrontation
Clause grounds in subsequent written objections or during trial. Id. at ¶ 18.
Accordingly, the division reviewed the claim for plain error. Id. at ¶¶ 19–29. At
the time of trial, no Colorado case had addressed the issue of expert testimony
based on DNA profiles generated by non-testifying technicians. Id. at ¶ 22. And
although the U.S. Supreme Court addressed the issue in Williams v. Illinois,
567 U.S. 50 (2012), the fractured decision failed to produce a test endorsed by a
majority of the justices. Campbell, ¶¶ 22–25. Because no clear holding could be
derived from the Williams decision, the division concluded that any error in
admitting the expert testimony here was not so obvious that the trial court should
have intervened absent a confrontation objection. Id. at ¶ 29. Thus, it concluded,
any error was not plain. Id.
¶18 While Campbell’s appeal was pending, a different division of the court of
appeals held in People v. Merritt, 2014 COA 124, ¶ 2, 411 P.3d 102, 103, that
testimony from an expert about an autopsy report prepared by someone else was
testimonial. The Campbell division declined to consider whether the decision in
Merritt rendered any error here obvious at the time of appellate review,
concluding that the obviousness of an error is judged at the time of trial. Campbell,
¶ 27.
9
¶19 The division also rejected Campbell’s argument that the specific underlying
felony listed in the information is an essential element of the habitual offender
charge such that any discrepancy between the felony listed and the felony proved
at the habitual offender adjudication results in a constructive amendment
requiring reversal. Id. at ¶¶ 64, 70–71. The division reasoned that “the essential
element of a habitual charge is the fact of a felony conviction, not commission of a
specific felony.” Id. at ¶ 71. The court thus concluded that the discrepancy here
was a simple variance, and that Campbell’s substantial rights were not prejudiced
because he had adequate notice. Id. at ¶¶ 71–72.
¶20 Finally, the division vacated Campbell’s theft conviction4 and remanded for
resentencing and correction of the mittimus. Id. at ¶¶ 62, 74. The division affirmed
the judgment and sentence in all other respects. Id. at ¶ 74. We granted certiorari
review.
II. Analysis
¶21 We first address Campbell’s claim that the trial court committed plain error
by allowing the Denver Crime Lab expert to testify about the DNA profile
4 The division vacated Campbell’s class 4 felony theft conviction because the
legislature amended the theft statute while Campbell’s case was pending.
Campbell, ¶¶ 48–49. The division remanded the case with instructions for the trial
court to enter a judgment of conviction for class 5 felony theft and resentence
Campbell accordingly. Id. at ¶ 62. That issue is not before us.
10
developed from the plum without testimony from the analyst who actually tested
the sample. We then turn to Campbell’s claim that the discrepancy between the
felony listed in the information as associated with case number 06CR3890 and the
actual prior felony conviction associated with that case number proved at his
habitual criminal adjudication amounted to a constructive amendment requiring
reversal.
A. DNA Expert Testimony
¶22 The U.S. and Colorado Constitutions guarantee criminal defendants the
right to confront the witnesses against them. U.S. Const. amend. VI; Colo. Const.
art. II, § 16.
¶23 In Crawford v. Washington, 541 U.S. 36 (2004), the U.S. Supreme Court
interpreted this right to prohibit the “admission of testimonial statements of a
witness who did not appear at trial unless he was unavailable to testify, and the
defendant had had a prior opportunity for cross-examination.” Id. at 53–54, 59; see
also Marshall v. People, 2013 CO 51, ¶ 15, 309 P.3d 943, 946. The question here is
whether the expert testimony referencing the Virginia lab results was testimonial
hearsay for purposes of the Confrontation Clause.5
5Because Campbell does not argue that Colorado’s state constitutional provision
requires a different analysis, we discuss only the federal Confrontation Clause.
11
¶24 Campbell argues that the Virginia lab results were testimonial because they
were generated for a primarily evidentiary purpose (i.e., to establish identity in a
later criminal proceeding) and that the Denver Crime Lab expert’s testimony about
the plum profile was hearsay because it was offered for its truth. See Davis v.
Washington, 547 U.S. 813, 822 (2006) (holding that statements are testimonial when
circumstances objectively indicate that the primary purpose of an interrogation is
to establish events potentially relevant to later criminal prosecution); Melendez-
Diaz v. Massachusetts, 557 U.S. 305, 309–10 (2009) (holding that analysts’ affidavits
reporting results of forensic analysis are testimonial statements for purposes of the
Confrontation Clause). The People respond that the results were not testimonial
under the U.S. Supreme Court’s more recent decision in Williams; they further
argue that the lab results were not hearsay under CRE 703 because they were not
offered for their truth but rather as a basis for the Denver Crime Lab expert’s
testimony.
¶25 Because Campbell did not object to this testimony on Confrontation Clause
grounds at trial, we review his claim for plain error.6 See People v. Vigil, 127 P.3d
6 Campbell argues that he preserved his confrontation objection by filing the
request for live testimony. We disagree and, in fact, denied certiorari review on
this issue.
12
916, 929 (Colo. 2006). Plain error review addresses obvious and substantial errors
that undermine the fundamental fairness of the trial such that they cast serious
doubt on the reliability of the conviction. Scott v. People, 2017 CO 16, ¶ 15, 390 P.3d
832, 835. Plain errors must be so obvious that trial judges should be able to avoid
them without the benefit of an objection. Id. at ¶ 16, 390 P.3d at 835. For an error
to be obvious, it must contravene clear statutory prescription, a well-settled legal
principle, or established Colorado case law. Id.¶26 Campbell contends that the error in the admission of the expert’s testimony
was obvious at the time of trial because his request for live testimony put the trial
court on notice of the confrontation issue. He further argues that the plainness of
any error should be judged from the time of appellate review, urging this court to
adopt the rule in Henderson v. United States, 568 U.S. 266, 273 (2013) (interpreting
Federal Rule of Criminal Procedure 52(b)’s use of the phrase “plain error” to apply
at the time of appellate review). Campbell maintains that the court of appeals’
decision in Merritt—issued while Campbell’s appeal was pending—rendered the
error plain at the time of Campbell’s appeal.
¶27 We first explain that any error was not plain at the time of trial. Next, we
determine that we need not reach the question of whether to adopt the Henderson
rule because the court of appeals’ decision in Merritt did not render any error here
13
plain at the time of appellate review either. Because any error was not plain,
reversal is not required.
1. Any Error Was Not Plain at the Time of Trial.
¶28 Generally speaking, scientific reports created for the purpose of establishing
or proving a fact in a criminal trial are testimonial. Melendez-Diaz, 557 U.S. at 311,
329; Hinojos-Mendoza v. People, 169 P.3d 662, 667 (Colo. 2007). To admit such a
report as evidence at trial, a person involved in the preparation of the report, rather
than a surrogate witness who did not participate in the testing, must be called to
testify. Bullcoming v. New Mexico, 564 U.S. 647, 652 (2011); Marshall, ¶¶ 17–20,
309 P.3d at 946–48.
¶29 At the time of Campbell’s trial, the U.S. Supreme Court had narrowly held
in Williams v. Illinois that expert testimony about a DNA profile generated by a
non-testifying technician did not violate the Confrontation Clause. 567 U.S. at57–58. But the case resulted in a fractured plurality ruling, generating four
separate opinions and no majority rationale.
¶30 During the criminal investigation in Williams, law enforcement sent
evidence to be tested by Cellmark, an external lab. Id. at 59. Cellmark generated
a DNA profile based on that evidence. Id. Rather than call a Cellmark technician
to testify, prosecutors called an expert unaffiliated with Cellmark to testify—based
on the Cellmark report—that the DNA profile produced by the outside lab
14
matched the defendant’s. Id. at 59–61. The trial court admitted the testimony over
the defendant’s Confrontation Clause objection. Id. at 62–64.
¶31 In the plurality opinion, Justice Alito, joined by Chief Justice Roberts and
Justices Kennedy and Breyer, concluded that the expert’s testimony about the
DNA profile did not violate the Confrontation Clause. Id. at 55, 57–58. First, the
plurality reasoned that such out-of-court statements may be relayed by an expert
who is merely explaining the basis of her opinion but is not offering the results for
their truth.7 Id. at 57–58. As a second, independent basis for its decision, the
plurality reasoned that even if the Cellmark report itself had been admitted into
evidence, there would have been no Confrontation Clause violation because
Cellmark created the report for the primary purpose of identifying a suspect,
rather than inculpating the defendant, whom law enforcement had not yet
identified. Id. at 84–85.
¶32 Justice Breyer joined the plurality in full, but wrote separately to emphasize
that he would have set the case for reargument to answer the broader question of
how “the Confrontation Clause appl[ies] to the panoply of crime laboratory
7 The plurality observed that the case involved a bench trial; had Williams been
tried by a jury, the same testimony could not have been admitted without “an
evaluation of the risk of juror confusion and careful jury instructions.” Id. at 72.
15
reports and underlying technical statements written by (or otherwise made by)
laboratory technicians.” Id. at 86 (Breyer, J., concurring).
¶33 Justice Thomas concurred in the judgment but expressly rejected the
plurality’s analysis. Id. at 103–04 (Thomas, J., concurring in the judgment). He
agreed with the dissent that the out-of-court statements were admitted for their
truth and were therefore hearsay. Id. at 104, 110. But Justice Thomas also reasoned
that Cellmark’s statements lacked the necessary formality and solemnity to qualify
as testimonial for Confrontation Clause purposes. Id. at 103, 110–12.
¶34 Justice Kagan, joined by Justices Scalia, Ginsburg, and Sotomayor,
dissented, lamenting that the “clear rule” from Melendez-Diaz and Bullcoming “is
clear no longer.” Id. at 118, 141 (Kagan, J., dissenting). Justice Kagan argued that
under Melendez-Diaz and Bullcoming, the Cellmark DNA profile was both
testimonial and offered for its truth; thus, the expert’s testimony about the DNA
profile violated Williams’s rights under the Confrontation Clause. Id. at 118–41.
In sum, Justice Kagan opined that although the law had been clear under
Melendez-Diaz and Bullcoming, the plurality decision in Williams “left significant
confusion in [its] wake.” Id. at 141.
¶35 Since the fractured decision in Williams, state and federal courts have
struggled to discern a clear test for the admission of expert testimony relying on
DNA test results performed by a non-testifying analyst. E.g., United States v. Pablo,
16
696 F.3d 1280, 1293 (10th Cir. 2012) (holding that any error in admitting expert
testimony was not plain in part because it “is a nuanced legal issue without clearly
established bright line parameters, particularly in light of the discordant . . . divide
of opinions in Williams”).8
¶36 Here, as in Williams, local law enforcement outsourced DNA testing and an
expert then testified relying on the results of testing performed by someone else.
But the defense here failed to object to the admission of such testimony on
Confrontation Clause grounds. Given the absence of clear guidance in Williams,
any error here was not so obvious that the trial judge should have identified it
without the benefit of an objection. Indeed, five Justices in Williams agreed, albeit
8 See also, e.g., United States v. Maxwell, 724 F.3d 724, 727 (7th Cir. 2013) (“[Williams]
left no clear guidance about how exactly an expert must phrase its testimony about
the results of testing performed by another analyst in order for the testimony to be
admissible.”); State v. Walker, 212 A.3d 1244, 1260 (Conn. 2019) (“[C]ourts have
struggled to determine the effect of Williams, if any, on the legal principles
governing confrontation clause claims.”); Jenkins v. United States, 75 A.3d 174, 176
(D.C. 2013) (“[T]he splintered decision in Williams, which failed to produce a
common view shared by at least five Justices, creates no new rule of law that we
can apply in this case.”); State v. Norton, 117 A.3d 1055, 1069 (Md. 2015) (“[M]any
other courts also have struggled to interpret Williams and apply its tenets.”);
Commonwealth v. Tassone, 11 N.E.3d 67, 71 n.1 (Mass. 2014) (“In the wake of the
fractured plurality decision in [Williams], courts have struggled to find any such
common denominator that may constitute its holding.”); State v. Dotson,
450 S.W.3d 1, 68 (Tenn. 2014) (“The Supreme Court’s fractured decision in Williams
provides little guidance and is of uncertain precedential value because no
rationale . . . garnered the support of a majority of the Court.”).
17
for different reasons, that the admission of such testimony did not violate the
Confrontation Clause. Thus, we cannot say that any error was plain at the time of
trial.
2. Merritt Did Not Render Any Error Here Plain.
¶37 Campbell argues in the alternative that the error in admitting the expert’s
testimony was obvious at the time of his appeal given the court of appeals’ ruling
in Merritt. See Merritt, ¶ 49, 411 P.3d at 109. Campbell urges this court to adopt
the rule in Henderson, in which the U.S. Supreme Court held that under Federal
Rule of Criminal Procedure 52(b), courts must evaluate whether an error is plain
at the time of appellate review, not the time of trial. 568 U.S. at 277.
¶38 We need not decide whether to adopt the rule in Henderson because we
conclude that any error here was not plain, even under Merritt.
¶39 In Merritt, the division addressed whether expert testimony about an
autopsy report prepared by another person should have been excluded as
testimonial hearsay. ¶ 2, 411 P.3d at 103. To determine whether the report was
testimonial, the division looked to the purpose for which it was made. Id. at ¶ 44,
411 P.3d at 108. It observed that “[c]oroners perform autopsies for a variety of
reasons,” including determining the manner of death for the police, insurance
companies, tort lawyers, and decedents’ families. Id. at ¶ 43, 411 P.3d at 108. Even
within the context of a criminal investigation, autopsies are performed for
18
purposes as varied as identifying and ruling out causes of death, building a case
against an individual, and discovering information that may inculpate or
exculpate a particular individual such as time of death, type of murder weapon,
or information about the killer including height, dominant hand, and physical
strength. Id. Given the varied reasons for which an autopsy report may be
prepared, the division concluded that whether an autopsy report is testimonial is
a fact-specific inquiry. Id. at ¶ 44, 411 P.3d at 108.
¶40 Reasoning that Williams provided no clear guidance on the issue, the
division concluded that the autopsy report was testimonial because it was created
primarily for the purpose of gathering evidence to be used in a future criminal
prosecution. Id. at ¶¶ 45–49, 411 P.3d at 108–09; see also Davis, 547 U.S. at 822(articulating the primary purpose test); Hinojos-Mendoza, 169 P.3d at 667 (holding
that a report was testimonial because its sole purpose was to analyze a substance
in anticipation of criminal prosecution). Because the autopsy report itself was not
admitted at trial, the division explained that some of the expert’s statements may
have been based on the report and thus may have been testimonial hearsay, other
statements were not, and still others were testimonial hearsay invited by defense
counsel. Id. at ¶¶ 50–59, 411 P.3d at 109–10. The division ultimately concluded
that the admission of the expert’s testimony was harmless beyond a reasonable
doubt. Id. at ¶ 60, 411 P.3d at 110.
19
¶41 Even setting aside the fact that one division of the court of appeals is not
bound by another division, People v. Smoots, 2013 COA 152, ¶ 21, 396 P.3d 53, 57,
the opinion in Merritt did not render any Confrontation Clause error obvious here.
Merritt addressed issues unique to autopsy reports and did not purport to set out
a broad rule for other types of testing, evidence, or reports. Moreover, it is unclear
from the record here why the plum was sent to the Virginia lab, including whether
it was to identify the burglar or build a case specifically against Campbell. While
one could argue the similarities between this case and Merritt, we cannot say a
judge would be expected to recognize those similarities without the benefit of an
objection. Because Merritt did not render any error here obvious, we decline to
decide whether to adopt Henderson and continue to leave that question open. See
Howard-Walker v. People, 2019 CO 69, ¶ 5, 443 P.3d 1007, 1008–09; Garcia v. People,
2019 CO 64, ¶ 28, 445 P.3d 1065, 1070.
¶42 Accordingly, because any error was not plain, reversal is not required.
B. Habitual Offender Count
¶43 Campbell argues that the discrepancy between the felony identified in the
habitual offender count as associated with case number 06CR3890 and the actual
prior felony conviction associated with that case number proved at his habitual
offender hearing amounted to a constructive amendment requiring reversal. On
the facts here, we disagree.
20
¶44 “An information is sufficient if it advises the defendant of the charges he is
facing so that he can adequately defend himself and be protected from further
prosecution for the same offense.” Cervantes v. People, 715 P.2d 783, 785 (Colo.
1986) (quoting People v. Albo, 575 P.2d 427, 429 (Colo. 1978)). “The notice given to
a defendant of the charges against him should be sufficient to ensure that he is not
taken by surprise by the evidence offered at trial.” Id.¶45 A variance occurs when the charge contained in the charging instrument
differs from the charge for which a defendant is convicted. People v. Rodriguez,
914 P.2d 230, 257 (Colo. 1996). Colorado law recognizes two types of variances. A
simple variance “occurs when the evidence presented at trial proves facts
materially different from those alleged in the charging document.” People v. Smith,
2018 CO 33, ¶ 25, 416 P.3d 886, 892. A simple variance generally does not require
reversal as long as the proof upon which the conviction is based corresponds to an
offense that was clearly set out in the charging instrument. Rodriguez, 914 P.2d at
257. By contrast, a constructive amendment occurs when the variance “changes
an essential element of the charged offense.” People v. Rediger, 2018 CO 32, ¶ 48,
416 P.3d 893, 903 (quoting Rodriguez, 914 P.2d at 257). Even then, “[n]o indictment,
information, felony complaint, or complaint shall be deemed insufficient nor shall
the trial, judgment, or other proceedings thereon be reversed or affected by any
defect which does not tend to prejudice the substantial rights of the defendant on
21
the merits.” § 16-10-202, C.R.S. (2019); see also Crim. P. 7(e) (permitting
amendments to an information as to form any time before the verdict or finding if
no additional or different offense is charged and the substantial rights of the
defendant are not prejudiced).
¶46 Campbell argues that the prosecution’s failure to prove the specific prior
felony conviction listed in the information resulted in a constructive amendment
of the habitual criminal count, requiring reversal. Although we agree that the
habitual criminal statute requires proof of a specific prior felony conviction, we
conclude that here, the prosecution adequately alleged that Campbell was
convicted of a specific felony; namely, a conviction in Denver District Court case
number 06CR3890. Because the prosecution proved that prior felony conviction
as alleged in the information, the variance here was a simple variance that did not
prejudice Campbell’s substantial rights.
1. The Habitual Criminal Statute Requires Proof of a
Specific Felony Conviction.
¶47 The habitual criminal statute does not establish a substantive offense but
instead provides for increased penalties for repeat offenders based on a
defendant’s previous convictions. Under section 18-1.3-801(2)(a)(I), a person
convicted of any felony who has been three times previously convicted “of a
felony” shall be adjudged a habitual criminal and shall be sentenced to four times
the maximum presumptive range. Id. Section 18-1.3-803, C.R.S. (2019), establishes
22
the procedures for habitual offender proceedings. That provision requires that an
information seeking the increased penalties authorized under section 18-1.3-801
“shall allege that the defendant on a date and at a place specified was convicted of a
specific felony.” § 18-1.3-803(2) (emphases added). The prosecution bears the
burden to prove beyond a reasonable doubt “that the defendant has been
previously convicted as alleged.” § 18-1.3-803(4)(b) (emphasis added).
¶48 The court of appeals concluded that “the essential element of a habitual
charge is the fact of a felony conviction, not commission of a specific felony.”
Campbell, ¶ 71. On this point, we disagree. Based on the plain language of sections
18-1.3-801 and -803, we conclude that adjudication as a habitual offender requires
proof of a specific prior felony conviction.
¶49 In general, a charging instrument serves the constitutional purpose of
providing a defendant with notice of the charges against him.9 People v. Williams,
9A charging instrument also serves to protect a defendant from double jeopardy.
People v. Williams, 984 P.2d 56, 60 (Colo. 1999). That is, a charging instrument must
be sufficient to allow a defendant “to plead the judgment to bar further
prosecutions for the same offense.” People v. Moody, 674 P.2d 366, 370 (Colo. 1984)
(Lohr, J., dissenting). But these double jeopardy principles are less salient in the
habitual offender context because “habitual offender” is a status, not an offense.
See People v. Porter, 2015 CO 34, ¶ 30, 348 P.3d 922, 928–29. Accordingly, our
analysis here focuses on the charging instrument’s purpose of providing a
defendant with notice.
23
984 P.2d 56, 60 (Colo. 1999); see also People v. Moody, 674 P.2d 366, 370 (Colo. 1984)
(Lohr, J., dissenting). The statutory requirements for charging a defendant as a
habitual offender serve a similar purpose. Defenses to a habitual offender charge
can include challenges to the defendant’s identity, see Brown v. People, 238 P.2d 847,
850 (Colo. 1951), and whether the underlying conviction was constitutionally
obtained, see Lacy v. People, 775 P.2d 1, 6 (Colo. 1989). If the prosecution were
allowed to merely allege that the defendant was previously convicted of three
felonies without identifying the specific convictions, a defendant could not
prepare such defenses. The same due process concerns would arise if, in the midst
of the habitual criminal hearing, the prosecution was permitted to substitute a
different felony conviction for the one charged in the information. Therefore, we
conclude that the habitual criminal statute requires the prosecution to allege and
prove a specific prior felony conviction.
2. The Discrepancy Here Was a Simple Variance,
Not a Constructive Amendment.
¶50 Here, we conclude that the information adequately alleged that Campbell
was previously convicted of a specific felony by identifying the prior conviction’s
case number, jurisdiction, and date.
¶51 To reiterate, the habitual offender statute does not itself establish a
substantive offense. When proving beyond a reasonable doubt under section
18-1.3-803(4)(b) that the defendant has been “previously convicted,” the
24
prosecution need not re-establish the elements of that underlying offense. Rather,
for purposes of establishing that the defendant is a habitual criminal and subject
to enhanced penalties, the prosecution need only establish the fact of the prior
conviction.
¶52 As noted, the information in this case alleged Campbell was convicted of a
felony in case number 06CR3890 in Denver District Court on September 14, 2006,
but mistakenly identified the felony associated with that case number as
“Possession of a Schedule IV Controlled Substance” when in fact the conviction in
06CR3890 was for felony trespass.10
¶53 At trial, relying on the pen pack documents associated with case number
06CR3890, the prosecution proved beyond a reasonable doubt that Campbell had
been convicted of a felony in that case; namely, criminal trespass. Thus, the
evidence at trial established proof of the prior felony conviction in Denver District
Court case number 06CR3890, as alleged in the charging instrument. See Rodriguez,
914 P.2d at 257. Because the prosecution proved the prior felony conviction
associated with the case number, jurisdiction, and date alleged in the information,
the discrepancy between the felony offense listed in the information (possession
10 Notably, case number 06CR3890 concerned only one felony conviction.
25
of controlled substance) and the actual conviction in that case (felony trespass) was
a simple variance, not a constructive amendment. The information put Campbell
on notice that he was alleged to have been convicted of a felony in Denver District
Court case number 06CR3890; the prosecution proved at the hearing that he was,
in fact, convicted of felony trespass in that case. Because the prosecution proved
the prior felony conviction in case number 06CR3890 as alleged in the information,
the variance here was a simple variance that did not prejudice Campbell’s
substantial rights.
¶54 Campbell does not claim any prejudice to his substantial rights with regard
to the error in the information. The pen pack materials presented at trial were
provided to the defense in discovery. These documents plainly revealed that the
felony conviction associated with case number 06CR3890 concerned felony
trespass, not drug possession. In fact, the record suggests that defense counsel
was well aware of the discrepancy. Campbell therefore had actual notice that the
felony conviction associated with case number 06CR3890 concerned felony
trespass. See Moody, 674 P.2d at 370–71 (Lohr, J., dissenting) (“If the defendant is
aware of a defect in the charge before trial, this reflects on whether he is prejudiced
by it.”). He does not argue how he would have challenged the prosecution’s case
differently had the information properly labeled the nature of the offense. See
People v. Pahl, 169 P.3d 169, 178 (Colo. App. 2006) (holding that a simple variance
26
did not affect defendant’s substantial rights where “defendant [did] not complain
he was unaware of the essential facts[,] . . . argue he would have challenged the
prosecution’s case differently, [or] indicate he could have produced different
evidence in his defense”). In short, he has not alleged or demonstrated that he was
prejudiced by the discrepancy between the felony mistakenly identified in the
information as associated with case number 06CR3890 and the prior felony
conviction associated with that case number established at the habitual criminal
hearing.
¶55 Accordingly, we conclude that the variance here was not a constructive
amendment, but rather, a simple variance that did not prejudice Campbell’s
substantial rights.
III. Conclusion
¶56 We affirm the judgment of the court of appeals and remand with directions
to return the case to the trial court for resentencing and correction of the mittimus
in accordance with the court of appeals’ decision.
JUSTICE GABRIEL concurs in part and dissents in part, and JUSTICE HOOD
and JUSTICE HART join in the partial concurrence and partial dissent.
27
JUSTICE GABRIEL, concurring in part and dissenting in part.
¶57 I agree with the majority’s conclusion that the trial court did not plainly err
in admitting the expert testimony regarding the DNA testing on the plum. Maj.
op. ¶¶ 4, 28–42. I disagree, however, with the majority’s conclusion that, as to
added count six of the complaint and information, which was one of the habitual
criminal counts, the prosecution’s proof amounted to a simple variance that was
not prejudicial. Id. at ¶¶ 43–55. In that count, the prosecution offered proof of a
prior conviction for criminal trespass when it charged a prior conviction for
possession of a schedule IV controlled substance. In my view, the pertinent
statutes make clear that the specific prior conviction is an essential element of the
habitual criminal charge, and because I do not agree that the prosecution charged
the criminal trespass that it ultimately proved, I believe that the circumstances
here established a constructive amendment of the charging instrument and that
reversal is therefore required.
¶58 I thus respectfully concur in part with and dissent in part from the majority’s
opinion.
I. Factual Background
¶59 The material facts are not disputed. In count six, the prosecution alleged
that on September 14, 2006, Campbell was convicted in Denver District Court Case
No. 06CR3890 of possession of a schedule IV controlled substance.
1
¶60 Notwithstanding what it charged in that count, at the habitual criminal trial,
the prosecution did not prove that Campbell had previously been convicted of
possession of a schedule IV controlled substance. Instead, it proved that he had
previously been convicted of criminal trespass.
¶61 At the close of the evidence, Campbell argued that the prosecution had
presented no evidence that he had a prior conviction for possession of a
schedule IV controlled substance, as the prosecution had alleged, and therefore he
was entitled to judgment on count six. The prosecution did not deny its lack of
proof of a prior drug possession conviction but responded that the issue was one
of notice because the mittimus and pen pack that it had introduced into evidence
showed that the case number associated with count six actually involved a
criminal trespass conviction. The prosecution further argued that Campbell was
on notice of the true nature of the crime at issue because the discovery that he had
received revealed the actual conviction, as opposed to what the prosecution had
alleged in the charging instrument.
¶62 The trial court found that the prosecution had, in fact, charged a prior
conviction for possession of a schedule IV controlled substance but then proved a
prior conviction for criminal trespass. The court concluded, however, that the
prosecution was not required to prove the specific felony that it had alleged.
Rather, the prosecution needed only to prove “a felony.” Moreover, the court
2
agreed with the prosecution that its failure to prove the specific felony charged
was a notice issue and that, on the facts of this case, Campbell had suffered no
prejudice.
¶63 The question now before us is whether this variance in proof amounted to a
constructive amendment requiring reversal, or whether it was a simple variance
that was amenable to a prejudice analysis. Unlike the majority, I believe it was a
constructive amendment.
II. Analysis
¶64 I begin by setting forth the applicable statutory provisions. I then discuss
the distinctions between constructive amendments and simple variances. I end
my analysis by applying the foregoing law to the facts of this case, and I conclude
that this case involved a constructive amendment that requires reversal.
A. Applicable Legal Principles
¶65 Section 18-1.3-801(2)(a)(1), C.R.S. (2019), provides for increased penalties for
habitual criminals who have been convicted of “a felony” on three prior occasions.
¶66 Section 18-1.3-803, C.R.S. (2019), in turn, provides, in pertinent part:
(2) An information or indictment seeking the increased penalties
authorized by section 18-1.3-801 shall identify by separate counts each
alleged former conviction and shall allege that the defendant on a date and
at a place specified was convicted of a specific felony. If any such conviction
was had outside this state, the information or indictment shall allege
that the offense, if committed in this state, would be a felony.
3
....
(4) If the defendant denies that he or she has been previously
convicted as alleged in any count of an information or indictment, the
trial judge, or a replacement judge as provided in subsection (1) of
this section, shall determine by separate hearing and verdict whether
the defendant has been convicted as alleged.
(Emphases added.)
¶67 Our case law has recognized two types of variances between the charge
contained in a charging instrument and the charge for which a defendant is
convicted. People v. Rodriguez, 914 P.2d 230, 257 (Colo. 1996). A simple variance
occurs when the terms of the charge are unchanged but the evidence at trial
establishes facts that are materially different from those alleged in the charging
instrument. Id. A constructive amendment, in contrast, changes an essential
element of the charged offense, thereby altering the substance of the charging
instrument. Id.¶68 In the case of a simple variance, a court will generally sustain the conviction
as long as the proof on which it was based corresponds to an offense that was
charged in the charging instrument. Id. The question is one of prejudice, for, as
our legislature has provided, “No indictment, information, felony complaint, or
complaint shall be deemed insufficient nor shall the trial, judgment, or other
proceedings thereon be reversed or affected by any defect which does not tend to
4
prejudice the substantial rights of the defendant on the merits.” § 16-10-202, C.R.S.
(2019).
¶69 A constructive amendment, however, requires reversal because our
constitution prohibits amendments that effectively subject a defendant to the risk
of conviction for an offense that was not charged in the charging instrument.
Rodriguez, 914 P.2d at 257; see also People in Interest of H.W., 226 P.3d 1134, 1137
(Colo. App. 2009) (“Unlike simple variances, constructive amendments effectively
subject a defendant to the risk of conviction for an offense that was not originally
charged in the charging instrument. Consequently, constructive amendments are
per se reversible error, whereas simple variances are not reversible unless they
prejudice a defendant’s substantive rights.”) (citations omitted).
B. Constructive Amendment
¶70 Applying the foregoing principles here, I would conclude that the facts of
this case established a constructive amendment, not a simple variance. As noted
above, section 18-1.3-803(2) requires the prosecution to allege that the defendant
on a date and at a place specified was convicted of “a specific felony.” Moreover,
section 18-1.3-803(4) requires the court to determine, at a separate hearing,
whether the defendant has been convicted “as alleged.”
¶71 In my view, this statutory language makes clear that the specific felony
underlying the habitual criminal count at issue is an essential element of that
5
count. If, as the People contend and the majority at least implicitly opines, it were
not, then the language of sections 18-1.3-803(2) and (4) would be meaningless. We,
however, may not construe a statute so as to render any of its terms meaningless.
See Doubleday v. People, 2016 CO 3, ¶ 20, 364 P.3d 193, 196 (noting that we read the
statutory scheme as a whole, “giving consistent, harmonious, and sensible effect
to all of its parts”).
¶72 Because I believe that the allegation of a specific felony is an essential
element of a habitual criminal count, I would conclude that the prosecution’s proof
in this case of a different felony from the one that it specifically charged, by name,
in the complaint and information constituted a constructive amendment and
therefore requires reversal. See Rodriguez, 914 P.2d at 257; H.W., 226 P.3d at 1137.
¶73 Our decision in Casadas v. People, 304 P.2d 626 (Colo. 1956), which has been
on the books for over six decades, is substantially on point. In Casadas, the
defendant was charged with the crime of conspiracy to commit “fictitious check”
and the charging instrument purported to cite the pertinent statute. Id. at 627. The
cited statute, however, had “nothing to do with checks,” and the prosecution
introduced no evidence that “tended in the least to prove any offense” defined by
the cited statute. Id. As a result, at the conclusion of the evidence, the defendant
moved for a directed verdict of not guilty. Id. The trial court, however, denied
that motion and granted the prosecution leave to amend the charged count to
6
conform to the evidence, although we noted that no amendment was ever made.
Id.1 The defendant was then convicted of the crime of conspiracy to commit
“fictitious check,” not the crime identified by statutory citation in the charging
instrument. Id.
¶74 The defendant appealed, and we reversed the judgment, concluding that the
defendant’s motion for a directed verdict should have been sustained. Id. at 628.
In so concluding, we first stated, “Where a count of an information in a criminal
case identifies with particularity the exact section of the statute upon which a
prosecution is based, as in the instant case, no other statute can be substituted for
the one actually selected as forming the subject matter of the prosecution.” Id.
¶75 We then said:
An accused person is entitled to be tried on the specific charge
contained in the information, and after a plea of not guilty has been
entered and the people have submitted all the evidence which the
prosecutor desires to present to sustain that charge, no amendment
can be made thereto which changes entirely the substance of the crime
which defendant is alleged to have committed. This is exactly what
the trial court undertook to do in this case by granting leave [to
amend].
Id.
1 We further noted, “By this statement we do not mean to infer that under the
circumstances here present such amendment could have been made.” Id.
7
¶76 Here, as in Casadas, the prosecution charged a specific crime and then
provided additional identifying information that was inconsistent with the crime
specified. Id. at 627. Likewise, here, as in Casadas, at the conclusion of the
prosecution’s case, the defendant requested the entry of judgment in his favor,
arguing that the prosecution had not proved the crime that it had specifically
alleged, but the trial court denied that motion, rejecting the defendant’s assertion
that the prosecution was bound by the crime charged. Id. These facts led us to
conclude in Casadas that the defendant was entitled to be tried on the specific
charge contained in the information and that the prosecution could not amend the
charges after the close of the evidence to change the substance of the crime that the
defendant was alleged to have committed. Id. at 628. In my view, we should reach
the same result here. Campbell had every right to rely on the specific crime that
the prosecution charged, particularly given that the prosecution was statutorily
required to allege the specific crime at issue and it only identified one specific
crime. Moreover, for the reasons set forth in Casadas, the prosecution should not
be permitted to remedy such an error by amending the charging instrument after
it has rested its case.
¶77 For several reasons, I am unpersuaded by the People’s assertion that it was
sufficient for the prosecution to allege the case number in which Campbell was
previously convicted and that any error regarding the prior conviction at issue
8
should be deemed to have been resolved in the discovery process. Nor can I agree
with the majority’s view that citing a case number, jurisdiction, and date of a prior
proceeding is sufficient to charge a defendant with the felony at issue therein,
notwithstanding the fact that the complaint and information specified, by name, a
different felony. Maj. op. ¶ 50.
¶78 First, I do not believe that we demand too much by requiring the
prosecution to charge the correct underlying conviction (and, if it did not do so, to
amend its charge on a timely basis). This is particularly true here, where the
prosecution is seeking increased penalties pursuant to a statutory scheme that
expressly required it to allege the specific felony underlying the habitual criminal
count at issue. See § 18-1.3-803(2).
¶79 Second, I respectfully disagree with the majority’s view that citing a case
number, jurisdiction, and date of a prior felony satisfies the statutory requirement
that the prosecution allege the specific felony underlying the habitual criminal
count that it intends to prove. See id. The statute does not require merely that the
complaint and information allege sufficient information to allow a defendant to
determine the underlying felony. Nor does the statute say that it is sufficient for
the prosecution to allege and prove a prior felony “associated with” an identified
case number, jurisdiction, and date, as the majority asserts. Maj. op. ¶ 52. The
statute expressly requires the prosecution to allege the specific felony. Under the
9
majority’s reasoning, however, the prosecution need not allege any specific felony
at all. It need only allege a case number, jurisdiction, and date of a prior
proceeding. But that is not what section 18-1.3-803(2) says, and we are not at
liberty to ignore or rewrite a statutory mandate.
¶80 Third, I am unpersuaded by the People’s (and the majority’s) apparent
premise that Campbell should have been able to discern the correct underlying
conviction based on the cited case number. Besides the above-noted fact that
section 18-1.3-803(2) requires more than this, the People’s and the majority’s
premise presumes that Campbell would have assumed that the case number was
correct and that the specifically identified crime was incorrect. I, however,
perceive no basis for such an assumption. Indeed, given that section 18-1.3-803(2)
requires the prosecution to allege the specific felony and not a specific case
number, the more appropriate presumption would seem to be that the identified
conviction was correct and that the case number was incorrect.
¶81 Finally, I cannot agree with a rule that allows a court to overlook the fact
that the prosecution pleaded the wrong charge and did not timely correct its error,
based on a theory that the discovery process would have remedied the error. Such
a rule would undermine the due process principles requiring the prosecution to
allege in the charging instrument what it intends to prove because what the
prosecution charges will no longer matter. A conviction will be upheld as long as
10
the prosecution can point to something in discovery suggesting that the defendant
had notice of what the prosecution ultimately proved, regardless of what the
prosecution had charged. Moreover, under such a rule, most, if not all,
constructive amendments would morph from questions of due process and proper
pleading into questions of prejudice, thereby effectively eliminating any
distinction between constructive amendments and simple variances and
overturning decades of settled case law in the process. With respect, I cannot abide
such a result.
III. Conclusion
¶82 Today, the majority adopts a rule that effectively allows prosecutors to
convict defendants on charges different from those specifically alleged, by name,
in the charging instruments. Although this rule is announced in a case involving
a habitual criminal count, I do not see why the rule would be limited to this
context. Instead, it would appear to apply to any charged crime and, thus, would
seem to allow the prosecution in any case to convict a defendant of a charge other
than one expressly alleged in a charging instrument, as long as the defendant can
be said to have been given notice, either elsewhere in the charging instrument or
in discovery, of what the prosecution ultimately proved. Because I believe that
such a rule would violate a defendant’s right to due process, I cannot subscribe to
it.
11
¶83 For these reasons, I would conclude that when, in connection with habitual
criminal counts, the prosecution charges a prior conviction of a specifically
identified felony but then proceeds to prove a different felony without timely
amending the charging instrument, the prosecution has constructively amended
that charging instrument and reversal is required. Accordingly, I would reverse
the judgment of conviction on count six and remand this case for further
proceedings.
¶84 To this extent, I respectfully dissent from the majority’s opinion.
I am authorized to state that JUSTICE HOOD and JUSTICE HART join in
this concurrence in part and dissent in part.
12