18CA2392 Peo v Hibbs 11-24-2021
COLORADO COURT OF APPEALS
Court of Appeals No. 18CA2392
Mesa County District Court No. 17CR1819
Honorable Valerie J. Robison, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Blake Hibbs,
Defendant-Appellant.
JUDGMENT AFFIRMED
Division I
Opinion by JUDGE DUNN
Dailey and Kuhn, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced November 24, 2021
Philip J. Weiser, Attorney General, Trina Kissel, Assistant Attorney General,
Denver, Colorado, for Plaintiff-Appellant
Megan A. Ring, Colorado State Public Defender, Emily Hessler, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant
1
¶ 1 Defendant, Blake Hibbs, appeals the judgment of conviction
entered upon a jury verdict finding him guilty of giving false
information to a pawnbroker and theft. We affirm.
I. Background
¶ 2 Rent-A-Center allows customers either to rent merchandise
temporarily or to acquire ownership through weekly, semi-monthly,
or monthly rental payments. On August 16, 2017, Hibbs signed a
Rent-A-Center rental purchase contract for a Dell laptop. The
contract stated Hibbs didn’t own the laptop and “will not own” it
until he made the total identified payments. It also prohibited
Hibbs from selling, pawning, or disposing of the laptop.
¶ 3 On August 24th, Hibbs signed another Rent-A-Center rental
purchase contract for an HP Omen laptop. Hibbs set up recurring
electronic payments for both laptops, but Rent-A-Center received
only one payment toward the Dell laptop.
¶ 4 Between August 22nd and September 15th, Hibbs pawned the
Dell laptop three times.
1
Each time, Hibbs checked a box stating he
owned the laptop but gave a different answer for how long he owned
1
Hibbs paid to retrieve the Dell laptop twice before pawning it the
third time on September 15th.
2
it — one month, three months, and an indecipherable mark next to
“years.”
¶ 5 On September 15th, Rent-A-Center reported to the sheriff’s
office that Hibbs had rented two laptops but hadn’t paid for them.
After the investigating officer discovered the Dell laptop had been
pawned, he recovered and returned it to Rent-A-Center. But he
never found the Omen laptop.
¶ 6 The prosecution charged Hibbs with three counts of providing
false information to a pawnbroker and one count of theft. Hibbs
defended on the theory that (1) he didn’t knowingly give false
information to the pawnbroker because he thought he owned the
Dell laptop and (2) someone stole the Omen laptop “two or three
weeks after” he rented it.
¶ 7 A jury convicted Hibbs as charged. The trial court then
sentenced Hibbs to twenty months of probation and sixty days in
jail unless he paid restitution.
¶ 8 Hibbs now challenges his conviction arguing (1) the prosecutor
presented insufficient evidence that he knowingly gave false
information to a pawnbroker; (2) the prosecutor committed
misconduct during opening, closing, and rebuttal argument; (3) the
3
trial court plainly erred by admitting certain evidence; and (4) the
theft charge suffered from a constructive amendment or fatal
variance. We address each contention in turn but see no reversible
error.
II. Pawnbroker Act
¶ 9 The prosecution charged Hibbs with three counts of providing
false information to a pawnbroker under section 29-11.9-104(5),
C.R.S. 2021. Under that statute, “[a]ny customer who knowingly
gives false information with respect to the information required by
section 29-11.9-103(1) commits . . . a class 6 felony.” § 29-11.9-
104(5)(d). And under section 29-11.9-103(1), C.R.S. 2021,
A pawnbroker shall record the following
information in a register, as described in
section 18-16-105: The name, address, and
date of birth of the customer and the driver’s
license number or other identification number
. . . ; the date, time, and place of the contract
for purchase or purchase transaction; [and] an
accurate and detailed account and description
of each item of tangible personal property . . . .
The pawnbroker shall also obtain a written
declaration of the customer’s ownership, which
shall state that the tangible personal property
is totally owned by the customer . . . , how long
the customer has owned the property, whether
the customer or someone else found the
property, and, if the property was found, the
details of the finding.
4
(Emphasis added.)
¶ 10 Hibbs contends (1) subsection 104(5) prohibits giving only
false identification information to a pawnbroker (not false
ownership information) and (2) even if the subsection prohibits
giving false ownership information, the prosecution presented
insufficient evidence to prove that he knowingly gave false
information to the pawnbroker.
A. False Information
¶ 11 Hibbs doesn’t dispute subsection 104(5) criminalizes the act of
giving false information to a pawnbroker. But he argues “false
information” is limited to the customer’s “identification” and not his
“declaration of ownership.” We aren’t persuaded.
¶ 12 When a sufficiency claim depends on our interpretation of a
statute, we review that issue de novo. McCoy v. People, 2019 CO
44, ¶ 37. And when construing a statute, “our primary purpose is
to ascertain and give effect to the legislature’s intent.” Id. To do
that, we look first to the statute’s plain language. People v.
Huckabay, 2020 CO 42, ¶ 13. If the language is clear and
unambiguous, we apply it as written and “will not resort to other
interpretive aids.” Id.
5
¶ 13 The language of section 29-11.9-104(5) is plain and clear: it
prohibits a person from knowingly giving false information “with
respect to the information required by section 29-11.9-103(1).” And
though Hibbs asks us to limit the information required by section
29-11.9-103(1) to a customer’s identification information, the
statute plainly identifies both identification information and “a
written declaration of the customer’s ownership” among the
information that a pawnbroker must obtain. See People v.
Richards, 23 P.3d 1223, 1225 (Colo. App. 2000) (“[T]here was ample
proof establishing that defendant provided the pawnbroker with
false information concerning his acquisition and ownership of the
[property].”) (emphasis added).
2
¶ 14 We thus are unpersuaded by Hibbs’s suggestion that we
should treat the second half of section 29-11.9-103(1) differently
than the first. And, indeed, Hibbs’s suggested interpretation is
2
Hibbs asks us to discount Richards because the division didn’t
“address the issue presented here.” But Richards broadly
concluded the legislature intended to punish those “who knowingly
provide false information with respect to any item of information
required by” the statute. People v. Richards, 23 P.3d 1223, 1225
(Colo. App. 2000). Since we agree, we see no reason to stray from
Richards’ interpretation.
6
inconsistent with certain purposes of the statute, including
enabling law enforcement to track and recover stolen tangible
personal property and assisting them in apprehending those
trafficking in stolen tangible personal property. See Pro’s Closet,
Inc. v. City of Boulder, 2019 COA 128, ¶ 15. If customers accurately
identified themselves but then could freely pawn stolen items by
giving false ownership information, there would be no meaningful
way for pawnbrokers to determine that a customer owns property
(or that the property isn’t stolen) — necessarily thwarting law
enforcement’s ability to track and recover stolen property or
apprehend those trafficking in stolen property. See id. We decline
to interpret the statute in a manner that would lead to such an
illogical result. See Frazier v. People, 90 P.3d 807, 811 (Colo. 2004)
(“A statutory interpretation leading to an illogical or absurd result
will not be followed.”).
¶ 15 We therefore conclude that section 29-11.9-104(5) prohibits
providing false ownership information to a pawnbroker.
7
B. Sufficiency of Evidence
¶ 16 We also reject Hibbs’s contention that the prosecution
presented insufficient evidence that he “knew he did not own the
[Dell laptop] when he pawned it.”
¶ 17 We review de novo whether sufficient evidence supports a
conviction. People v. Perez, 2016 CO 12, ¶ 8. In doing so, we must
determine whether the evidence, when viewed as a whole and in the
light most favorable to the prosecution, is substantial and sufficient
to support a conclusion by a rational jury that the defendant was
guilty beyond a reasonable doubt. Id.
¶ 18 We can’t, however, intrude upon the jury’s role as fact finder
by reweighing the evidence. People v. Murray, 2018 COA 102, ¶ 28.
Rather, it’s for the jury, not this court, to determine witness
credibility and to weigh and resolve any evidentiary conflicts.
People v. Plancarte, 232 P.3d 186, 192 (Colo. App. 2009).
¶ 19 To counter Hibbs’s theory that he mistakenly thought he
owned the Dell laptop, the prosecution introduced Hibbs’s signed
rental contract which plainly stated, “You do not own the property.
You will not own the property until you have made the total number
of payments and the total amount of such payments necessary to
8
acquire ownership.” It also provided payment terms if Hibbs
“choose[s] to acquire ownership,” and clearly stated that Rent-A-
Center retains title to the property and has the “right to possession
of the property” if Hibbs breached the contract. Finally, the
contract stated that Hibbs “cannot sell, mortgage, pawn, pledge,
encumber, hock or dispose” of the property.
¶ 20 In addition to the contract, the Rent-A-Center store manager
who rented the Dell laptop to Hibbs testified that he thoroughly
explains the rental transaction with customers and the “main thing”
he explains is that the customer does “not own the merchandise
until [they] make the last payment.”
¶ 21 Viewing this evidence in the light most favorable to the
prosecution — as we must — we conclude a reasonable juror could
infer that Hibbs knew he didn’t own the Dell laptop and thus
knowingly provided false information to the pawnbroker that he did.
See People v. Lawrence, 2019 COA 84, ¶ 21 (“Evidence of a
defendant’s intent is usually only proved by relying on
circumstantial evidence.”), aff’d, 2021 CO 28.
¶ 22 Still, Hibbs points to other evidence that he says shows he
didn’t knowingly provide false ownership information to the
9
pawnbroker and the prosecution didn’t disprove his mistake of fact
affirmative defense. To be sure, Hibbs testified that (1) he didn’t
read the rental contract; (2) the manager didn’t tell him he didn’t
own the laptop and couldn’t pawn it; and (3) he thought he owned
the laptop. But again, it was for the jury — not this court — to
determine witness credibility, weigh the evidence, and resolve any
evidentiary disputes. People v. Poe, 2012 COA 166, ¶ 14. And the
jury didn’t have to accept Hibbs’s version of events. See People v.
Becker, 187 Colo. 344, 346-48, 531 P.2d 386, 388 (1975) (a jury
doesn’t have to accept a defendant’s explanations for his actions).
¶ 23 We therefore conclude the prosecution presented sufficient
evidence that Hibbs knowingly provided the pawnbroker with false
ownership information of the Dell laptop.
3
3
Because we conclude the prosecution presented sufficient
evidence to prove Hibbs provided false ownership information, we
need not address his separate contentions that the evidence was
insufficient to prove he knowingly provided false information about
his identification or the length of ownership. See Richards, 23 P.3d
at 1225 (concluding the legislature intended to punish those “who
knowingly provide false information with respect to any item of
information required” by the statute).
10
III. Prosecutorial Misconduct
¶ 24 Next, Hibbs contends the prosecutor committed reversible
misconduct by (1) expressing his personal opinion “on the evidence,
guilt, and Hibbs’s credibility”; (2) minimizing “the seriousness of the
conviction”; and (3) lowering the prosecution’s burden of proof. We
disagree.
¶ 25 A prosecutor has wide latitude to make arguments based on
facts in evidence and reasonable inferences drawn from those facts.
People v. Maloy, 2020 COA 71, ¶ 61. And though it’s improper for a
prosecutor to give their personal beliefs on a witness’s credibility,
“counsel may properly argue from reasonable inferences anchored
in the facts in evidence about the truthfulness of a witness’
testimony.” Domingo-Gomez v. People, 125 P.3d 1043, 1051 (Colo.
2005). We evaluate improper argument claims in the context of the
argument as a whole and in light of the evidence presented. People
v. Munsey, 232 P.3d 113, 123 (Colo. App. 2009).
¶ 26 In reviewing a claim of prosecutorial misconduct, we engage in
a two-step analysis, determining, first, whether the prosecutor’s
conduct was improper based on the totality of the circumstances
and, second, whether such actions warrant reversal under the
11
proper standard of review. Wend v. People, 235 P.3d 1089, 1096
(Colo. 2010).
A. Personal Opinion
¶ 27 The prosecutor argued in closing argument:
It’s my burden to prove each element and I’ll
submit to you that I’ve proven these first two
elements
4
[of providing false information to a
pawnbroker] beyond a reasonable doubt.
. . . .
So did . . . Hibbs give false information to a
pawn broker? I think it’s pretty clear that he
did. You have Exhibits 1 and 2 in evidence,
the rental agreements for the Dell laptop and
the Omen laptop. They both say you do not
own this property, you will not own the
property until you have made the total number
of payments.
. . . .
You might recall also from . . . Hibbs’[s]
testimony that he said he wrote – scribbled in
the years just because he wanted to get out of
there quickly. But I think we all know that
that’s not true because he didn’t write three
months to get out of there quickly . . . . Hibbs
knows what the word three means, and that’s
exactly what he meant when he wrote that on
the pawn slip . . . . He knows that he was . . .
conveying to First National Pawn that he had
owned this Dell laptop for some number of
4
The prosecutor was referring to “the defendant, in the State of
Colorado at or about the date and place charged.”
12
years when in fact he had rented it for less
than one month.
. . . .
I would submit to you that I’ve proven all of
these elements beyond a reasonable doubt.
You heard [the Rent-A-Center manager] testify
that . . . Hibbs did not pay as required and
breached the lease. And he didn’t cooperate in
returning the property. So I would submit to
you that once he breached the lease and
refused to return the laptop he was possessing
the laptop without authorization.
. . . .
Did he act knowingly with regard to the theft of
the Omen laptop? I would suggest that he did.
Just looking at all of the other evidence in this
case . . . there’s nothing to suggest that he
wasn’t acting knowingly with regard to the
laptop. Especially after [the] Deputy . . . told
him that he had defaulted on his payments to
Rent-A-Center. The Omen laptop was worth
about $950.00 . . . . Hibbs paid very little on it
and then never returned it.
. . . .
And later in rebuttal, the prosecutor argued:
I think the first time when he claimed to have
owned [the laptop] for a month is the most
understandable. Perhaps he was rounding up.
One week isn’t that far different from one
month. But if you look at the next two they’re
far less understandable. The very next day
when he had the Dell laptop for one week he
13
claimed to have owned it for three months.
Then when he had owned it for less than one
month he claimed to have owned it for some
number of years.
(Emphasis added.)
¶ 28 Hibbs contends that by using the phrases “I submit,” “I think,”
and I suggest,” the prosecutor impermissibly opined on the evidence
and Hibbs’s credibility. But viewed in context, the prosecutor was
not expressing his personal opinion on Hibbs’s credibility or the
evidence. Rather, each phrase was tied directly to the evidence and
reasonable inferences that could be drawn from the evidence. And
it’s not improper for a prosecutor to ask the jury to believe their
version of events based on the evidence and legitimate inferences
that could be drawn from that evidence. While it might be better
practice to avoid personal pronouns, as used here, the argument
was simply a comment on the evidence, which is fair. People v.
Nerud, 2015 COA 27, ¶ 55; see also State v. Gibson, 31 A.3d 346,
349, 351 (Conn. 2011) (The prosecutor’s statement, “[d]id the
defendant wilfully [fail] to appear in court . . . . I think he did,” was
not improper expression of personal opinion because prosecutor
“was attempting to persuade the jury to draw this inference from
14
the circumstantial evidence of intent that he had just recited.”);
Collier v. United States, 92 F. Supp. 2d 99, 107 (N.D.N.Y. 2000)
(finding the prosecutor’s use of “rhetorical phrases” like “I submit”
and “I suggest” not improper where the prosecutor was properly
arguing the evidence, not his personal opinion).
¶ 29 Under these circumstances, we conclude the prosecutor’s
statements were proper.
B. Minimizing Seriousness of Conviction
¶ 30 We also disagree with Hibbs’s contention that the prosecutor
improperly minimized the seriousness of the conviction.
¶ 31 The prosecutor began opening statement and closing
argument with the comment that, “This isn’t the crime of the
century, but it’s important that people are honest about owning the
things that they sell.” The prosecutor also characterized the theft
charge as “pretty straight forward” in closing argument.
¶ 32 Although Hibbs objects to these comments, arguing they
minimized the seriousness of the charged crimes and a possible
conviction, a prosecutor “may employ rhetorical devices and engage
in oratorical embellishment and metaphorical nuance.” People v.
Conyac, 2014 COA 8M, ¶ 132. The prosecutor’s comments here
15
were such a rhetorical device and they didn’t suggest the charged
crime wasn’t real or significant. Nor did they induce the jury to
determine guilt on the basis of passion, prejudice, or some other
App. 2010).
¶ 33 Thus, we see nothing wrong with these comments.
C. Burden of Proof Comment
¶ 34 Nor are we persuaded that the prosecutor impermissibly
lowered the prosecution’s burden of proof when he told the jury that
“[e]ven if it takes you a long time, that doesn’t necessarily mean
you’re hesitating and have to find [Hibbs] not guilty.”
¶ 35 During his closing argument, defense counsel explained the
state’s burden:
A reasonable doubt is a doubt based upon
reason and common sense which arises from a
fair and rational consideration of all the
evidence or lack of evidence in the case. It is a
doubt which is not a vague, speculative, or
imaginary doubt, but such a doubt as would
cause reasonable people to hesitate to act in
matters of importance to themselves. That last
bit is very useful. It’s a doubt that would
cause reasonable people to hesitate to act in
matters of importance to themselves. That’s
how sure you have to be before you convict . . .
Hibbs in this case.
16
And in its rebuttal closing, the prosecutor responded:
Reasonable doubt is a doubt based on reason
and common sense. It’s a doubt which raises
[sic] from a fair and rational consideration of
all of the evidence or the lack of evidence in
the case. It is a doubt which is not vague,
speculative, or imaginary, but such a doubt as
would cause reasonable people to hesitate to
act in matters of importance to themselves.
Now all of that language is in there. [Defense
counsel] points you to the latter part of it, but
the first part is just as important. You’re
supposed to use your reason and common
sense in this case. Your life experience. To
that end, deliberation is not hesitation under
the reasonable doubt instruction.
. . . .
Even if it takes you a long time, that doesn’t
necessarily mean you’re hesitating and have to
find . . . Hibbs not guilty. We want you to be
deliberate and thoughtful in this process.
¶ 36 While we agree with Hibbs that attempts to explain reasonable
doubt can be problematic generally, that’s not what happened here.
Nothing in the prosecutor’s statements trivialized reasonable doubt
or suggested the prosecution bore a burden of proof less than
beyond a reasonable doubt. Cf. People v. Vialpando, 2020 COA 42,
¶¶ 55-56 (cert. granted Oct. 12, 2020). Rather, the prosecutor
acknowledged and emphasized that his burden was proof beyond a
17
reasonable doubt, accurately summarized the law, and fairly
responded to defense’s counsel’s comment on hesitation. See
People v. Lovato, 2014 COA 113, ¶ 63 (prosecutors are given wide
latitude in replying to argument by defense counsel). That’s all
proper.
¶ 37 Having concluded none of the prosecutor’s statements were
improper, we necessarily reject Hibbs’s contention that they
cumulatively require reversal.
IV. Evidentiary Challenge
¶ 38 At trial, the prosecution introduced a Rent-A-Center business
record showing Hibbs’s payment history for the laptops and Rent-A-
Center’s attempts to contact Hibbs. The document shows Rent-A-
Center attempted to contact Hibbs beginning on the payment due
date in August 2017 and continuing through the end of September
2017.
5
¶ 39 Hibbs did not object to the relevance of the document at trial.
But he now contends the portion of the document showing
5
Specifically, it shows, among other things, the date and time of the
calls, the “result” of the calls — mainly “Disconnected, “No Answer,”
or “Voice Mail Full” — the payment due date, and how late the
payment was.
18
“attempts to contact” him “after the charged” offense date (between
August 16th and September 15th) was irrelevant and misleading.
We disagree.
¶ 40 Relevant evidence is “evidence having any tendency to make
the existence of any fact that is of consequence to the determination
of the action more probable or less probable than it would be
without the evidence.” CRE 401. Only relevant evidence is
admissible. CRE 402. But even relevant evidence “may be
excluded if its probative value is substantially outweighed by the
danger of unfair prejudice, confusion of the issues, or misleading
the jury.” CRE 403.
¶ 41 We review a trial court’s evidentiary rulings for an abuse of
discretion. People v. Mendenhall, 2015 COA 107M, ¶ 60. A court
abuses its discretion if its decision is manifestly arbitrary,
unreasonable, or unfair, or misapplies the law. Id.
¶ 42 We first conclude the jury could infer from the complete
document that Hibbs evaded Rent-A-Center’s attempts to contact
him after he stopped making payments on the Dell laptop. Thus,
the document is relevant to show Hibbs’s guilty conscience and his
intent to retain the laptops without paying. See People v. Curtis,
19
2014 COA 100, ¶ 52 (post-offense behavior may be admissible as
evidence of consciousness of guilt); see also People v. Sharp, 104
P.3d 252, 256 (Colo. App. 2004) (intent to permanently deprive
another of the use or benefit of a thing of value may be inferred
from the defendant’s conduct and circumstances of the case);
People v. Stewart, 739 P.2d 854, 856 (Colo. 1987) (same).
¶ 43 We also conclude that the document wasn’t unfairly
misleading. Though Hibbs may be right that the document
“bolstered the jury’s conclusion that [he] knew he did not own or
have authorization to keep the laptops,” that’s a fair inference from
the evidence. And “[e]vidence isn’t unfairly prejudicial simply
because it damages the defendant’s case.” People v. Knapp, 2020
COA 107, ¶ 42. Nor did the document invite the jury to base its
decision on an improper basis such as hatred, sympathy,
retribution, contempt, or horror. See People v. Forgette, 2021 COA
21, ¶ 54.
¶ 44 Therefore, the court didn’t abuse its discretion by admitting
this evidence.
20
V. Alleged Variances
¶ 45 Finally, Hibbs contends the prosecution’s “evidence and
argument” (1) constructively amended the theft charge and (2)
created an impermissible variance. We see no reversible error.
A. Legal Standards and Standard of Review
¶ 46 A charging document “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.”
Campbell v. People, 2020 CO 49, ¶ 44 (quoting Cervantes v. People,
715 P.2d 783, 785 (Colo. 1986)).
¶ 47 There are two types of variances — a simple variance, which
occurs when the charging terms are unchanged, but the evidence
proves facts materially different from those alleged in the charging
document, and a constructive amendment, which changes an
essential element of the charged offense, thereby altering the
substance of the charging document. Id. at ¶ 45.
¶ 48 We review de novo whether a variance occurred. People v.
Deutsch, 2020 COA 114, ¶ 22. Hibbs didn’t raise these claims in
the trial court. Therefore, if we conclude a variance occurred, we
review for plain error and will reverse only if the error is obvious
21
and so undermined the fundamental fairness of the trial as to cast
serious doubt on the reliability of the judgment of conviction.
People v. Rediger, 2018 CO 32, ¶ 47.
6
B. Analysis
¶ 49 The prosecution charged Hibbs with theft under section 18-4-
401(1), (2)(e), C.R.S. 2021. The complaint and information alleged
that Hibbs
[b]etween and including August 16, 2017 and
September 15, 2017 . . . unlawfully, and
knowingly, took a thing of value, namely:
computer(s), of Rent A Center . . . without
authorization or by threat or deception,
obtained, retained, or exercised control over; or
knowing or believing it to have been stolen,
received, loaned money by pawn or pledge on,
or disposed of, a thing of value, namely:
computer(s), of Rent A Center . . . and/or
knowingly used, concealed, or abandoned the
thing of value in such manner as to
permanently deprive Rent A Center of its use
or benefit.
7
¶ 50 And at the end of trial, the court gave the following theft
instruction:
6
Though Hibbs contends a constructive amendment is
automatically reversible, we don’t address this contention because
we conclude no constructive amendment occurred.
7
The prosecutor clarified at trial that the theft charge applied to the
Omen laptop.
22
1. That the defendant,
2. in the State of Colorado, at or about the date
and place charged,
3. knowingly,
4. obtained, retained, or exercised control over
anything of value of another,
5. without authorization or by deception, and
6. intended to deprive the other person
permanently of the use or benefit of the thing
of value,
7. and that the defendant’s conduct was not
legally authorized by the affirmative defense in
Instruction 14.
(Emphasis added.)
¶ 51 Even though the complaint and jury instructions charged
Hibbs with theft between August 16, 2017, and September 15th,
2017, Hibbs contends that evidence and argument that he never
returned the Omen laptop “constructively amended the theft charge
by altering an essential element: the date of the offense.”
¶ 52 But the prosecution didn’t argue the theft occurred on a
different date, it simply presented evidence the Omen laptop was
never found (which Hibbs didn’t contest). We don’t see how that
changed an essential element of the theft charge. See People v.
23
Huynh, 98 P.3d 907, 911-12 (Colo. App. 2004) (“Inasmuch as this
variance relates only to the possible date or dates of defendant’s
participation in the crimes, it does not warrant reversal as a
constructive amendment to the charges.”).
¶ 53 Hibbs alternatively contends the prosecution’s argument and
evidence that he never returned the laptop created an
impermissible variance. But even if true, a simple variance requires
reversal only if it prejudices a defendant’s substantial rights. E.g.,
People v. Rice, 198 P.3d 1241, 1246 (Colo. App. 2008); see § 16-10-
202, C.R.S. 2021. And though Hibbs contends the alleged variance
“prejudiced, surprised, or hampered” him in preparing his defense,
he doesn’t explain, and we don’t see, how it did.
¶ 54 For one thing, there couldn’t have been any surprise. Hibbs
was on notice from the complaint that he was charged with theft of
2006) (rejecting prejudice where the defendant did not allege he was
unaware of essential facts that differed from the offense as
charged). For another, whether the Omen laptop was returned or
not didn’t affect Hibbs’s defense theory. He defended on the theory
that the Omen laptop was stolen, so the prosecutor’s argument that
24
it was never returned was consistent with — and didn’t hamper —
his theory of defense. See Huynh, 98 P.3d at 911 (explaining a
variance between the specific date of the offense alleged in the
charging document and the date proved at trial isn’t fatal where it
didn’t impair the defendant’s defense).
¶ 55 Finally, though Hibbs asserts “the variance also undermined
[his] substantial right to a unanimous verdict,” he doesn’t explain
how the fact the laptop wasn’t recovered affected unanimity. The
prosecution charged Hibbs with theft of the Omen laptop and didn’t
present evidence of multiple discrete acts. So there isn’t a
reasonable likelihood that jurors would’ve disagreed on which act
was committed. See People v. Archuleta, 2020 CO 63M, ¶ 21.
¶ 56 Given all this, we perceive no impermissible variances that
prejudiced Hibbs’s substantial rights.
VI. Conclusion
¶ 57 We affirm the judgment of conviction.
JUDGE DAILEY and JUDGE KUHN concur.