22CA1684 Peo v Carpenter 04-24-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 22CA1684 Lincoln County District Court No. 20CR117 Honorable H. Clay Hurst, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Ricky C. Carpenter,
Defendant-Appellant.
JUDGMENT AFFIRMED
Division II Opinion by JUDGE GOMEZ Fox and Lum, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced April 24, 2025
Philip J. Weiser, Attorney General, Claire V. Collins, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Robin Rheiner, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant ¶1 Defendant, Ricky C. Carpenter, appeals the judgment of
conviction entered on a jury verdict finding him guilty of first degree
assault. We affirm.
I. Background
¶2 At the time in question, Carpenter, an inmate at the Limon
Correctional Facility, worked as a member of the facility’s ground
maintenance crew under the supervision of Sergeant Michael Crow
(the victim). The crew was responsible for mowing grass, shoveling
snow, and other grounds upkeep.
¶3 One day, Carpenter and another inmate were working on an
irrigation issue caused by a leak in the sprinkler system. Carpenter
and the other inmate, equipped with shovels, wrenches, and pliers,
dug a hole three to four feet deep to access the leak.
¶4 As they worked, Carpenter informed the victim that he was
getting a new job as a porter and would no longer be on the
grounds crew. Carpenter asked who his replacement would be,
and, in response, the victim commented that it would be “somebody
[as] old and crusty and nasty as” Carpenter. According to the
victim, Carpenter, taking offense to the comment, climbed out of the
hole he was digging, made several angry remarks, and swung a
1 shovel at the victim’s head. The victim said he deflected the shovel
with his hand, stepped back, and tried to deploy his pepper spray.
Next, the victim said, Carpenter picked up a pair of pliers and
appeared ready to throw them, so the victim sprayed him with
pepper spray. Carpenter then threw two sets of pliers toward the
victim, neither of which reached the victim.
¶5 Shortly afterward, other officers responded and helped restrain
Carpenter. The shovel was found in the hole. The victim reported
that after the incident, he received medical attention for severe
bruising and a bone chip to his hand.
¶6 The prosecution charged Carpenter with first degree assault
under section 18-3-202(1)(f), C.R.S. 2024. As relevant here, that
statute applies when someone, while lawfully confined as a result of
a criminal conviction, threatens a person employed at a detention
facility with a deadly weapon, with knowledge (or reason to know)
the person is in the performance of their duties and with intent to
cause that person serious bodily injury. Id. The prosecution also
brought other charges that were dismissed before trial.
¶7 At trial, in addition to hearing the victim’s testimony, the jury
heard testimony from another officer on duty in the area who
2 witnessed part of the incident. That officer testified that she looked
over when she heard screaming, and she saw two pairs of pliers fly
toward the victim and saw the victim step back and spray his
pepper spray. But, in contrast to the victim’s testimony, she said
that the person who threw the pliers was still in the hole. She also
said that she didn’t see anyone swing a shovel. Carpenter didn’t
testify at trial.
¶8 After the close of evidence, the jury convicted Carpenter of first
degree assault.
II. Admission of Evidence Regarding the Pliers
¶9 Carpenter first contends that the trial court erred by admitting
evidence regarding the pliers because such evidence was irrelevant,
and any potential probative value of the evidence was substantially
outweighed by the danger of unfair prejudice. We disagree.
A. Applicable Law and Standard of Review
¶ 10 The Colorado Rules of Evidence favor the admissibility of
relevant evidence unless it is prohibited by the constitution, a
statute, or a rule. People v. Hood, 2024 COA 27, ¶ 19; CRE 402. In
criminal cases, evidence is relevant if, among other things, the
evidence makes it more or less probable that the charged criminal
3 act occurred or that the defendant acted with the necessary
criminal intent. People v. Clark, 2015 COA 44, ¶ 17; see also CRE
401. However, 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, or by
considerations of undue delay, waste of time, or needless
presentation of cumulative evidence.” CRE 403.
¶ 11 We review a trial court’s evidentiary rulings for an abuse of
discretion. People v. Owens, 2024 CO 10, ¶ 105. A court abuses
its discretion when its ruling is manifestly arbitrary, unreasonable,
or unfair or is based on an incorrect understanding of the law. Id.
B. Discussion
¶ 12 On the first day of trial, defense counsel asked the court to
exclude all evidence regarding the pliers. Defense counsel argued
that, because the complaint and information identified only the
shovel as the deadly weapon to support the first degree assault
charge, any evidence about the pliers was irrelevant. And, counsel
continued, evidence about the pliers would be highly prejudicial
and “could confuse and mislead the jury as to which dangerous
instrument” was the deadly weapon at issue.
4 ¶ 13 The prosecutor countered that Carpenter’s throwing of the
pliers was “part of the criminal episode” and was relevant to his
state of mind, intent, and lack of mistake. The prosecutor also
argued that, while evidence of the pliers was prejudicial because it
was inculpatory, it wasn’t unfairly prejudicial, and it was unlikely to
confuse or mislead the jury. And, in response to questioning from
the court, the prosecutor confirmed that he didn’t plan to argue at
trial that the pliers were deadly weapons.
¶ 14 The trial court ruled that it would admit evidence of the pliers.
The court reasoned that such evidence was relevant and was not
unfairly prejudicial because it related to the same episode and “was
all part of the act” and because the prosecution wasn’t going to
argue that the pliers were deadly weapons.
¶ 15 We discern no abuse of discretion in the trial court’s decision
to admit evidence concerning the pliers. It was within the court’s
discretion to find such evidence relevant, given the allegation that
Carpenter threw the pliers at the victim just after swinging the
shovel at him. In particular, that evidence would make it more
probable than not that Carpenter purposefully and intentionally
threw the shovel at the victim, rather than, for instance,
5 accidentally dropping the shovel or throwing it at something or
someone other than the victim. See Clark, ¶ 17; CRE 401.
¶ 16 Likewise, it was within the court’s discretion to conclude that
any risk of unfair prejudice or confusion of the issues didn’t
substantially outweigh the evidence’s probative value. See CRE
403. The evidence was highly relevant to Carpenter’s motive,
intent, and lack of mistake in swinging the shovel. It wasn’t
particularly prejudicial, as the pliers (which didn’t even reach the
victim) were far less dangerous than the shovel (which the victim
testified severely bruised and chipped a bone in his hand). See
People v. Brown, 2014 COA 130M, ¶¶ 22, 27 (considering, in
assessing a CRE 403 issue, the seriousness of the challenged
evidence as compared with the charged conduct). And, as the trial
court observed, it wasn’t likely to cause confusion so long as the
prosecution didn’t suggest that the pliers were deadly weapons —
and, as we discuss in the next section, the prosecution didn’t.
¶ 17 Accordingly, we decline to disturb the trial court’s ruling.
III. Constructive Amendment
¶ 18 Carpenter next contends that, by allowing the presentation of
the pliers evidence and denying his proposed jury instructions
6 limiting the deadly weapon to the shovel, the trial court
impermissibly broadened the scope of what could be considered a
deadly weapon, thereby constructively amending the charged
offense. We are not persuaded.
¶ 19 A charging document must be definite enough to give a
defendant sufficient notice of the crime alleged so as to prepare a
defense, and it must recite the essential facts of the crime to protect
the defendant from further prosecution for the same offense. People
v. Pahl, 169 P.3d 169, 177 (Colo. App. 2006).
¶ 20 A variance occurs when the charge in the charging document
differs from the charge for which a defendant is convicted.
Campbell v. People, 2020 CO 49, ¶ 45. Colorado courts recognize
two types of variances: a constructive amendment and a simple
variance. People v. Rail, 2016 COA 24, ¶ 49, aff’d on other grounds,
2019 CO 99, and abrogated on other grounds by Bock v. People,
2024 CO 61.
¶ 21 A constructive amendment occurs when a jury instruction
changes an essential element of the charged offense, thereby
altering the substance of the charging document. Bock, ¶ 14; see
7 also People v. Gallegos, 260 P.3d 15, 26 (Colo. App. 2010) (A
constructive amendment effectively “subjects a defendant to the
risk of conviction for an offense not originally charged.”).
¶ 22 In contrast, a simple variance occurs when the evidence
presented at trial proves facts that are materially different from
those alleged in the charging document. Campbell, ¶ 45. A simple
variance requires reversal of the judgment only if it prejudices the
defendant’s substantial rights. Rail, ¶ 51. Thus, we won’t disturb
the judgment for a simple variance “as long as the proof upon which
the conviction is based corresponds to an offense that was clearly
set out in the charging instrument.” Campbell, ¶ 45.
¶ 23 We review de novo whether a constructive amendment or
simple variance occurred. People v. Martinez, 2024 COA 34, ¶ 24;
People v. Baker, 2019 COA 165, ¶ 27.
B. Additional Facts
¶ 24 The complaint and information alleged, in relevant part, that
Carpenter, “with intent to cause serious bodily injury to [the
victim] . . . unlawfully and feloniously threatened [the victim] with a
deadly weapon, namely: a shovel.” (Emphasis added.)
8 ¶ 25 As noted above, on the first day of trial, defense counsel asked
the court to exclude all evidence regarding the pliers. Part of
defense counsel’s argument was that “the complaint . . . identif[ied]
a shovel as the instrument in question” and didn’t mention the
pliers. Thus, defense counsel argued, admitting evidence of the
pliers would change or broaden the charge alleged in the complaint.
The court admitted the evidence but confirmed that the prosecution
wouldn’t be arguing that the pliers were deadly weapons.
¶ 26 Later, defense counsel proposed two jury instructions aimed at
specifying that the shovel was the deadly weapon in question. First,
defense counsel requested that the pattern elemental instruction for
first degree assault be modified to require a finding that Carpenter
“threatened [the victim] with a deadly weapon, namely, a shovel.”
Defense counsel also proposed the following language in a
supplemental instruction:
The Prosecution has alleged . . . that the deadly weapon used in this case is a shovel. As jurors, you must unanimously agree that the deadly weapon used in this case, if any, was a shovel. There is no other object that may be considered as a deadly weapon in this case.
9 ¶ 27 The court denied both proposed instructions. It reasoned that
the jury wasn’t likely to be confused as to what was the deadly
weapon at issue and that the proposed instructions would be more
prejudicial to Carpenter insofar as they essentially declared that the
shovel satisfied the standard to be deemed a deadly weapon. The
court accordingly provided the jury with the unaltered pattern
instruction for first degree assault, which required a finding that
Carpenter “threatened [the victim] with a deadly weapon.”
C. Discussion
1. Constructive Amendment
¶ 28 Carpenter primarily argues that the broadening of the scope of
what could be deemed a deadly weapon resulted in a constructive
amendment of the first degree assault charge. We disagree.
¶ 29 As an initial matter, we reject the People’s assertion that
Carpenter didn’t adequately preserve this argument in the trial
court. Defense counsel raised the “sum and substance” of the
argument, which was sufficient to preserve it for our review. People
v. Cooley, 2020 COA 101, ¶ 24 (quoting In re Estate of Ramstetter,
2016 COA 81, ¶ 68).
10 ¶ 30 As indicated above, under section 18-3-202(1)(f), a person
commits first degree assault if, while lawfully confined and with
intent to cause serious bodily injury, they “threaten[] with a deadly
weapon” a detention facility employee engaged in the performance
of their duties, knowing or with reason to know that the employee
was engaged in the performance of those duties. While the use of a
deadly weapon is an essential element of the offense, there is
nothing in the statute suggesting that the use of a particular type of
deadly weapon is an essential element.
¶ 31 The pattern elemental instruction for first degree
assault — which the jury was given — also requires only that a
defendant “threatened [the victim] with a deadly weapon.” COLJI-
Crim. 3-2:06 (2024).
¶ 32 Although the prosecution alleged in the complaint and
information that the type of deadly weapon used was a shovel, the
additional detail of the type of weapon used was not part of the
essential element. Thus, the trial court’s decision to use an
instruction without that detail didn’t constitute a change in an
essential element. See People v. Rodriguez, 914 P.2d 230, 272 n.44
(Colo. 1996) (an elemental instruction for first degree sexual assault
11 that didn’t specify what deadly weapon the defendant used “did not
unconstitutionally expand upon the offense charged,”
notwithstanding that the charging document had specified that the
deadly weapon was a knife); see also id. at 258 (a definitional
instruction for first degree sexual assault that included a list of
actions that satisfy the sexual penetration element, only two of
which were alleged in the charging document, “did not
impermissibly amend the [charging document]” where the specific
acts alleged in the charging document were merely “further
evidentiary details which the [charging document] need not state”);
Pahl, 169 P.3d at 178 (a definitional instruction for securities fraud
that listed types of securities in addition to the one listed in the
charging document didn’t amount to a constructive amendment).
¶ 33 Because there was no change in an essential element of the
offense between the complaint and information and the jury
instructions, we reject Carpenter’s argument that the instructions
effectuated a constructive amendment. See Bock, ¶ 14. Similarly,
we reject Carpenter’s argument that the admission of the pliers
evidence effectuated a constructive amendment, because it didn’t
alter an essential element of the offense or subject Carpenter “to the
12 risk of conviction for an offense not originally charged.” Gallegos,
260 P.3d at 26.
¶ 34 Carpenter relies largely on People v. Simmons, 973 P.2d 627
(Colo. App. 1998), to support his contrary argument. But in that
case, a division of this court concluded that there was no
constructive amendment of the charging document. Id. at 629.
Instead, the division’s reversal of the judgment was based on a
concern that the jury verdict may not have been unanimous — an
issue Carpenter doesn’t develop in this case. Id. at 630; see also
People v. Duran, 2025 COA 34, ¶ 14 n.3 (appellate courts don’t
address undeveloped arguments). At any rate, the issue in that
case concerned confusion over who was the victim of felony
menacing, not simply what instrument was used to commit the
crime. See Simmons, 973 P.2d at 629-30.
2. Simple Variance
¶ 35 To the extent that Carpenter also argues that the broadening
of the scope of what could be deemed a deadly weapon resulted in
an impermissible simple variance, we again disagree.
¶ 36 Consistent with the allegations in the complaint and
information, the evidence presented at trial indicated that
13 Carpenter swung a shovel toward the victim’s head, injuring the
victim’s hand when he deflected it. Further evidence established
that the shovel was made of metal and wood, was roughly three feet
long, and weighed ten to fifteen pounds.
¶ 37 While the prosecution presented evidence that Carpenter also
threw two sets of pliers during the incident, the parties made clear
at trial that the conduct at issue was the swinging of the shovel,
that the shovel was the alleged deadly weapon, and that the actions
with the pliers were merely an indication of Carpenter’s intent. For
instance, in opening statements, after briefly describing the incident
and mentioning the shovel and the pliers, the prosecutor explained
that “the charge [wa]s about swinging a shovel, which can cause
serious bodily injury.” Then again, in closing argument, the
prosecutor told the jurors that they were being asked whether it
constitutes “intent . . . to cause serious bodily injury” “when you
swing” a “shovel [that is] three feet long, estimated ten to fifteen
pounds[, and] made of metal . . . at a person’s head.” He also
argued that “a shovel . . . could be a deadly weapon” and that “the
pliers . . . are a continuation of [Carpenter’s] acts . . . as part of
intent.” Likewise, defense counsel explained in closing argument,
14 Now, we talked about a couple tools here. And based on the statements of [the victim], he was concerned about a shovel. There’s also mention about these pliers that happened after, but he’s not concerned with those. Those are not the basis of his concern as he testified to. We’re talking about allegations of a shovel being swung. That is the alleged threat to have occurred, to have occurred to have hit him.
Thus, it is not reasonably likely that the jurors could’ve been
confused about what instrument was the deadly weapon.
¶ 38 We reject Carpenter’s suggestion that the jury was likely
confused or misled by the prosecutor’s statement in closing
argument that a deadly weapon “does not need to actually make
contact” to establish the elements of the offense. The prosecutor
made no reference to the pliers in conjunction with that statement,
and he went on to explain that no actual serious bodily injury was
required — only the intent to cause it. These statements can fairly
be interpreted as telling the jurors they could convict Carpenter
even if they disagreed about where the shovel was swung, whether
it struck the victim, and whether it caused an injury. Indeed,
defense counsel contested those very facts in his closing argument,
and there were discrepancies in the evidence as to whether
15 Carpenter was outside the hole or inside the hole at the time (as the
victim said Carpenter swung the shovel after climbing out of the
hole, yet the shovel was later found inside the hole and the other
officer reported seeing Carpenter inside the hole).
¶ 39 Accordingly, we conclude that the evidence presented at trial
did not prove facts materially different from those alleged in the
complaint and information and, therefore, that no simple variance
occurred. See Campbell, ¶ 45.
¶ 40 Yet even if there was a simple variance, it isn’t grounds for
reversal, as Carpenter “does not complain he was unaware of the
essential facts in support of the [first degree assault charge],” “does
not argue he would have challenged the prosecution’s case
differently,” and does not “indicate he could have produced different
evidence in his defense.” Pahl, 169 P.3d at 178; see also Rail, ¶ 51;
Campbell, ¶ 45. Indeed, the complaint and information and the
16 evidence at trial “concerned the same incident of assault, the same
defendant, [and the same] victim.” Rodriguez, 914 P.2d at 258.1
IV. Prosecutorial Misconduct
¶ 41 Lastly, Carpenter contends that the prosecutor committed
reversible misconduct by commenting in his rebuttal closing
argument on Carpenter’s decision not to testify at trial and by
shifting the burden of proof to the defense. Carpenter concedes this
issue is unpreserved, and we conclude that any error in allowing
the prosecution’s comments doesn’t rise to the level of plain error.
¶ 42 We use a two-step analysis when reviewing a claim of
prosecutorial misconduct. People v. Trujillo, 2018 COA 12, ¶ 36.
First, we determine whether the prosecutor’s conduct was improper
under the totality of the circumstances. Id. And second, we
1 To the extent that Carpenter also argues that the court abused its
discretion by denying his proposed jury instructions, we disagree for similar reasons and because the elemental instruction correctly stated the law. See People v. Trujillo, 2018 COA 12, ¶ 11 (“[W]e review a trial court’s decision concerning a proposed jury instruction for an abuse of discretion and will not disturb the ruling unless it is manifestly arbitrary, unreasonable, or unfair.”).
17 determine whether any prosecutorial misconduct warrants reversal
under the applicable standard of review. Id.
¶ 43 A prosecutor is allowed considerable latitude in responding to
arguments made by opposing counsel. People v. Ramirez, 997 P.2d
1200, 1211 (Colo. App. 1999), aff’d on other grounds, 43 P.3d 611
(Colo. 2001).
¶ 44 However, a prosecutor should not refer to a defendant’s
exercise of the constitutional right to remain silent or suggest that
the defendant’s silence creates an inference of guilt. Trujillo, ¶¶ 38,
43. “The test for whether a prosecutor’s argument constitutes a
comment on the defendant’s failure to testify is whether the
comment directs the jury’s attention to the defendant’s silence as a
means of implying guilt.” People v. Gibson, 203 P.3d 571, 577
(Colo. App. 2008).
¶ 45 A prosecutor also may not attempt to shift the burden of proof
to the defendant. People v. Marko, 2015 COA 139, ¶ 225, aff’d on
other grounds, 2018 CO 97. A prosecutor may, however, comment
on the lack of evidence supporting a defense theory. People v.
Walker, 2022 COA 15, ¶ 41. We assess whether a prosecutor’s
comments improperly shifted the burden of proof by considering
18 (1) whether the prosecutor specifically argued or intended to
establish that the defendant carried the burden of proof;
(2) whether the prosecutor’s actions constituted a fair response to
defense counsel’s questioning and comments; and (3) whether the
jury was informed by counsel and the court about the defendant’s
presumption of innocence and the prosecution’s burden of proof.
People v. Duncan, 2023 COA 122, ¶ 32.
¶ 46 Where, as here, the defense doesn’t object to the alleged
misconduct, we review for plain error. People v. Rhea, 2014 COA
60, ¶ 43. Plain error is an error that is obvious and substantial.
Hagos v. People, 2012 CO 63, ¶ 14. An error is obvious if it
contravened a clear statutory command, a well-settled legal
principle, or Colorado case law. People v. Thompson, 2018 COA 83,
¶ 34, aff’d, 2020 CO 72. An error is substantial if it “so
undermined the fundamental fairness of the trial itself so as to cast
serious doubt on the reliability of the judgment of conviction.”
Hagos, ¶ 14 (quoting People v. Miller, 113 P.3d 743, 750 (Colo.
2005)). “Only prosecutorial misconduct which is ‘flagrantly,
glaringly, or tremendously improper’ warrants reversal.” Domingo-
Gomez v. People, 125 P.3d 1043, 1053 (Colo. 2005) (quoting People
19 v. Avila, 944 P.2d 673, 676 (Colo. App. 1997)). “Prosecutorial
misconduct in closing argument is rarely so egregious as to
constitute plain error.” People v. Villa, 240 P.3d 343, 356 (Colo.
App. 2009).
¶ 47 In his rebuttal closing argument, the prosecutor stated,
The burden of the People, myself as the prosecutor on behalf of the People, is to prove the elements of the charges beyond a reasonable doubt. Not disprove a theory, not disprove the potential capabilities of a person who nobody’s heard from, and who doesn’t have to say a word. He doesn’t have to say anything. You don’t have to consider it at all.
Here’s the thing: You have to imagine his capabilities. You have to speculate about his capabilities to buy this argument wholesale. You have to decide if [the victim] misled everyone all the way up to getting on this stand, or you have to decide what the evidence told you.
(Emphases added.)
¶ 48 It’s unclear what the prosecutor meant by his reference to no
one having heard from Carpenter, and whether he was attempting
to suggest that it signified Carpenter’s guilt. In the portion of his
rebuttal immediately preceding the challenged comments, the
20 prosecutor referred to defense counsel’s statement in closing
argument that if Carpenter had actually intended to cause serious
bodily injury, he would’ve swung the shovel harder and multiple
times. But that portion of the rebuttal also referred to several other
things, including the lack of any need to establish an injury. In any
event, the prosecutor should not have referred to Carpenter’s
silence, and we disagree with the People’s assertion that the
reference was a fair response to defense counsel’s closing argument.
See Duncan, ¶ 32.
¶ 49 Nonetheless, we conclude that any error in allowing the
comments was not so obvious or substantial as to amount to plain
error. As we’ve indicated, the reference to Carpenter’s silence was
vague and unclear and didn’t directly suggest that it signified guilt.
See Gibson, 203 P.3d at 577. Likewise, it’s not clear that the
prosecutor was trying to shift the burden of proof to Carpenter, as
opposed to commenting on the lack of evidence to support
Carpenter’s theory of the case. See Marko, ¶ 225; Walker, ¶ 41.
The prosecutor also bookended his very brief comments with
reminders to the jury that the prosecution bore the burden of proof
and that Carpenter had the right not to testify. The court, too,
21 instructed the jury on the prosecution’s burden of proof,
Carpenter’s constitutional right not to testify, and the fact that the
jury could not use his decision not to testify as an inference of guilt.
¶ 50 Accordingly, we discern no plain error. See Domingo-Gomez,
125 P.3d at 1053; Villa, 240 P.3d at 356; see also People v. Cuellar,
2023 COA 20, ¶¶ 51-54 (similar comments didn’t amount to plain
error); People v. Cevallos-Acosta, 140 P.3d 116, 124 (Colo. App.
2005) (same).
V. Disposition
¶ 51 The judgment is affirmed.
JUDGE FOX and JUDGE LUM concur.