Peo v. Cruickshank

• Court: Colorado Court of Appeals
• Decided: June 11, 2026
• Docket: 24CA0095
• Status: Unpublished

Opinion

24CA0095 Peo v Cruickshank 06-11-2026

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA0095 Douglas County District Court No. 19CR233 Honorable Ryan J. Stuart, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Ryan Robert Cruickshank,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division V Opinion by JUDGE SCHUTZ Lipinsky and Graham*, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced June 11, 2026

Philip J. Weiser, Attorney General, Alexandra M. Taylor, Assistant Attorney General Fellow, Denver, Colorado, for Plaintiff-Appellee

Springer and Steinberg, P.C., Stephen M. Burstein, Taylor Ivy, Denver, Colorado, for Defendant-Appellant

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S. 2025. ¶1 Defendant, Ryan Robert Cruickshank, appeals the judgment of

conviction entered against him for felony driving while ability

impaired (DWAI). We affirm the judgment.

I. Background and Procedural History

¶2 In February 2019, shortly after midnight, Deputy Matthew

Bach observed an SUV travelling southbound at a speed that

appeared faster than the speed limit. Bach initiated a traffic stop

after the SUV’s driver — Cruickshank — almost hit another car.

Cruickshank failed to pull over after Bach turned on his overhead

lights and siren. Cruickshank eventually stopped the SUV when he

pulled into a driveway of a residence that was later determined to

be the same address that the SUV was registered to.

¶3 Cruickshank was subsequently charged with (1) felony driving

under the influence (DUI) — fourth or subsequent offense;

(2) eluding a police officer; (3) reckless driving; and (4) speeding.

¶4 The complaint and information (complaint) alleged the

following new charge and three prior convictions in support of the

felony DUI charge:

1 On or about February 5, 2019, Ryan Robert Cruickshank unlawfully and feloniously drove or operated a motor vehicle or vehicle while under the influence of alcohol or drugs or both.

Further, [Cruickshank] had been previously convicted of DUI on 9/28/2006, in the Douglas County Court, in case number 06T4612.

Further, [Cruickshank] had been previously convicted of DWAI on 1/26/1993, in the Adams County Court, in case number 03T1095.

Further, [Cruickshank] had been previously convicted of DUI on 5/18/1995, in the Denver County Court, in case number 94C414469; in violation of section[] 42-4-1301(1)(a), C.R.S [2025].

(Emphasis added.) We refer to the prior convictions as the 2006

conviction, the 1993 conviction, and the 1995 conviction,

respectively.

¶5 The matter was set for a three-day jury trial. A month before

the trial, the prosecution moved to amend the complaint to change

the case number of the 1993 conviction from 03T1095 to 93T1095.

The trial court granted the motion.

¶6 At trial, the parties disputed the conflicting evidence related to

the 1993 conviction, specifically the discrepancies regarding

2 whether Cruickshank was convicted in January or July 1993.

During a jury instruction conference, the prosecution proposed a

modification to the special interrogatory that asked the jury

questions about the 1993 conviction. The proposed modification

stated that the 1993 conviction occurred within “a range between

that January 26th date and the July 26th date of 1993.”

¶7 Defense counsel objected to the proposed modification on the

basis that it functioned as a constructive amendment that

prejudiced Cruickshank.

¶8 The trial court denied the prosecution’s motion after finding

that the conviction date was not an element of felony DUI and that

the prosecution’s case turned on whether Cruickshank “had three

or more prior convictions for driving under the influence, driving

under the influence per se, or driving while ability impaired.” See

§ 42-4-1301(1)(j). Thus, the court reasoned, the specific dates of

the prior convictions were irrelevant, and the proposed modification

was therefore superfluous.

¶9 During the jury instruction conference, Cruickshank’s counsel

argued that the special interrogatory listing each prior conviction

should include the language as alleged in the complaint. The trial

3 court disagreed, concluding that the special interrogatory (for each

alleged prior conviction) would simply list the county and case

number for each offense. Thus, the special interrogatory for each of

the respective felonies referred simply to the types of qualifying

offenses, the county where each case was filed, and the associated

case numbers.

¶ 10 The jury acquitted Cruickshank on the felony DUI count but

found him guilty of the lesser included offense of felony DWAI,

careless driving, and speeding. The court sentenced him to four

years of probation on the felony DWAI count and stayed the

execution of his jail sentence on the other charges.

II. Sufficiency of the Evidence

¶ 11 On appeal, Cruickshank contends that the prosecution did not

present sufficient evidence to prove that he was the same individual

who committed the 1993 and 1995 convictions, and therefore, there

was insufficient evidence to sustain his felony DWAI conviction. We

are unpersuaded.

A. Additional Facts

¶ 12 At trial, the prosecution called Sergeant Mark O’Harold to

testify about Cruickshank’s past convictions. During his direct

4 examination, O’Harold testified about the documents he used to

link Cruickshank to the prior convictions:

• Exhibit 16, a certified official record from the Colorado

Department of Revenue — Division of Motor Vehicles

(DMV). The certified record stated that Cruickshank had

been convicted of driving under the influence of alcohol,

drugs, or both in 1993, 1995, and 2006.1 The record

also set forth detailed personal information related to

Cruickshank, including his name, address, date of birth,

gender, weight, height, hair and eye color, and the last

four digits of his social security number, and it included

a photograph.

1 At oral argument, Cruickshank’s counsel argued that the

Department of Revenue record was unreliable because a 1993 statute — which does not appear in the record and was not incorporated into the jury instructions — treated some traffic violations as convictions if the defendant failed to appear. But in addition to lacking record support, the argument was not contained in Cruickshank’s briefs, so we do not address it. See People v. Czemerynski, 786 P.2d 1100, 1107 (Colo. 1990) (it is axiomatic that we do not address arguments not addressed in the appellant’s opening brief), abrogated on other grounds by, Rojas v. People, 2022 CO 8.

5 • Exhibit 17, a stamped, sealed, and signed copy of the

sentencing order from the Adams County court related to

the 1993 conviction.

• Exhibit 18, a stamped and certified copy of documents

from the City and County of Denver related to the 1995

conviction.

• Exhibit 19, signed and sealed court documents from

Douglas County related to the 2006 conviction.

¶ 13 Cruickshank argues that these documents were insufficient to

prove that he committed three prior DUI or DWAI offenses because

they contain inconsistencies regarding his marital status (separated

in 1993 versus married in 2006); his full name (Ryan Cruickshank

versus Ryan Robert Cruickshank or Ryan R. Cruickshank); and

variations in his weight (160 pounds for the 1995 conviction, 175

pounds for the 2006 conviction, and 180 pounds on the DMV

record regarding the 2019 charge). He also notes that the exhibits

reflected a different case number and date of conviction for the

1993 conviction and a different offense (DUI versus DWAI) for the

1995 conviction than what was alleged in the complaint.

6 ¶ 14 These discrepancies are at the core of Cruickshank’s challenge

to the sufficiency of the evidence regarding his felony DWAI

conviction and his constructive amendment contentions.

B. Applicable Law

1. Standard of Review

¶ 15 We review de novo whether the prosecution presented

sufficient evidence to sustain a conviction. Gorostieta v. People,

2022 CO 41, ¶ 16. “In doing so, we employ a substantial evidence

test,” asking “whether the evidence, ‘viewed as a whole and in the

light most favorable to the prosecution, is substantial and sufficient

to support a conclusion by a reasonable mind that the defendant is

guilty of the charge beyond a reasonable doubt.’” Id. (citation

omitted).

2. Determining Sufficiency of the Evidence

¶ 16 When analyzing the sufficiency of the evidence, we recognize

that it is the fact finder’s province “to determine the difficult

questions of witness credibility and the weight to be given to

conflicting items of evidence.” People v. Kessler, 2018 COA 60,

¶ 12. “[I]f there is evidence upon which one may reasonably infer

an element of the crime, the evidence is sufficient to sustain that

7 element.” Id. (citation omitted). Finally, if reasonable minds could

reach different conclusions concerning the defendant’s guilt, the

evidence is sufficient to sustain the conviction. Id.

3. Proof of Identification for Prior Convictions

¶ 17 To prove a defendant’s identity with respect to prior

convictions in a felony DWAI case, the prosecution must establish

an essential link between the prior conviction and the defendant,

which requires the prosecution to present “some documentary

evidence” combined with specific corroborating evidence of

identification connecting the defendant to the prior felony

conviction. Gorostieta, ¶ 26.

¶ 18 The means of proving prior DWAI convictions are also

addressed by section 42-2-121(2)(c)(II)(C), C.R.S. 2025, which

provides as follows:

[A]ll official records and documents of the state of Colorado . . . shall be admissible in all municipal, county, and district courts within the state of Colorado without further foundation, shall be statutory exceptions to rule 802 of the Colorado [R]ules of [E]vidence, and shall constitute prima facie proof of the information contained therein, if such record or document is accompanied by a certificate stating that the executive director of the [DMV] or the executive director’s appointee has

8 custody of such record or document and is accompanied by and attached to a cover page which:

....

(C) Bears the official seal of the [DMV] or a stamped or printed facsimile of such seal.

(Emphasis added.)

¶ 19 The supreme court has articulated a nonexhaustive list of the

type of corroborative evidence that “might be helpful in establishing

that the defendant committed the prior crime,” including — as

relevant here — (1) evidence specifically identifying the defendant;

(2) unique personal identifiers, including a driver’s license or social

security number; (3) a physical description from a prior case that

can be compared to the defendant in the current case; and (4) an

authenticated copy of the record of former convictions and

judgments of any court of record for any of the prior crimes.

Gorostieta, ¶ 27; see also § 18-1.3-802, C.R.S. 2025 (“[A] duly

judgments of any court of record for any of said crimes against the

party indicted or informed against shall be prima facie evidence of

9 such convictions and may be used in evidence against such

party.”).

4. Proof of Felony DUI or DWAI

¶ 20 DWAI and DUI are generally misdemeanor offenses. § 42-4-

1301(1)(a)-(b). But they are elevated to a felony upon proof that the

defendant — as relevant here — was previously convicted of three

or more prior instances of DUI or DWAI. Id. In a case alleging

felony DUI or DWAI, “[t]he prosecution shall set forth such prior

convictions in the indictment or information.” § 42-4-1301(1)(j).

C. Analysis

¶ 21 Cruickshank contends that the evidence, viewed in the light

most favorable to the People, was insufficient to establish that he

committed the1993 and 1995 convictions. We disagree.

¶ 22 With respect to the 1993 conviction, Cruickshank argues that

the following deficiencies prevented a reasonable juror from

concluding that he committed that offense:

10 • The conviction did not show up on a search in the

National Crime Information Center2 and Colorado Crime

Information Center databases.

• At the time of the conviction, Cruickshank was seventeen

years old, but the record stated his marital status was

separated.

• The only physical description of the convicted party was

“Caucasian male.”

• The prosecution did not introduce fingerprint evidence.

¶ 23 And even if the identification evidence was sufficient,

Cruickshank argues that the evidence was not clear as to whether

the 1993 conviction was entered on January 26 or July 26, 1993.

¶ 24 Cruickshank identifies the following inconsistencies regarding

the 1995 conviction:

• The physical description of the convicted party is

“Caucasian Male, 5′11″, 160 lbs., Brown hair/eyes,” but

2 At trial, Officer O’Harold testified that the National Crime

Information Center’s database only lists convictions for a defendant if the defendant was fingerprinted as a part of the arrest or resulting court proceedings. The record does not indicate whether Cruickshank was fingerprinted at any time relevant to this case.

11 Cruickshank’s 2019 DMV record describes him as a

“Male, 5′10″, 180 lbs., Brown hair/eyes.”

• Nothing linked the guilty plea to DWAI underlying the

1995 conviction to Denver County Court Case No.

94C414469 shown in the complaint.

¶ 25 Cruickshank leans heavily on the decision from a division of

this court in People v. Herold, 2024 COA 53. In Herold, the division

held that “a match between the defendant’s name and date of birth

and those of the individual with the prior conviction, ‘without

more,’” is generally insufficient to prove the defendant committed

the prior DUI or DWAI conviction. Id. at ¶ 17 (quoting Gorostieta,

¶ 28).

¶ 26 While that is an accurate reading of Herold, Cruickshank fails

to acknowledge the key categories of evidence that were introduced

into evidence in this case but not in Herold. Apparently unlike in

Herold,3 in this case, the prosecution introduced the DMV record

that directly tied the three qualifying convictions to Cruickshank.

3 People v. Herold, 2024 COA 53, contains no mention of the

defendant’s DMV record being admitted at trial and does not cite section 42-2-121(2)(c)(II)(C), C.R.S. 2025.

12 Recall that under section 42-2-121(2)(c)(II), a certified DMV record

constitutes prima facie proof of the evidence contained in that

record. And the record directly established that Cruickshank was

convicted of three prior DUI or DWAI offenses.

¶ 27 It is true, as Cruickshank notes, that some of the court

records contained inconsistent information regarding Cruickshank’s

height (5′10″ versus 5’11″) and weight (ranging between 160 and

180 pounds over a fifteen-year period). But the one-inch height

difference is of no consequence, and the twenty-pound weight

variation over the course of fifteen years is neither unusual nor

remarkable. To the extent these variations created a factual

dispute regarding the identification of Cruickshank as the

perpetrator, those disputes were for the jury to resolve. See

Kessler, ¶ 12. And a reasonable juror could have concluded these

variations were inconsequential. See id.

¶ 28 Moreover, contrary to Cruickshank’s argument, exhibit 18 —

the certified copy of documents relating to the 1995 conviction —

directly linked him to that case.

¶ 29 As for the 1993 conviction, the prosecution presented

additional evidence to connect Cruickshank to the case. First, that

13 conviction is listed on Cruickshank’s DMV record, which clearly

reflects that he was convicted of DWAI in Adams County in 1993.

As the trial court correctly noted, it is of no consequence whether

the convictions were entered in July or January of 1993. The DMV

record also contained Cruickshank’s name, his address, his date of

birth, the last four digits of his social security number, a physical

description of him, his driver’s license number, and his signature.

This evidence was sufficient to establish that Cruickshank was the

defendant in the 1993 conviction. See Gorostieta, ¶ 27.

¶ 30 Cruickshank was also present in person at trial so the jury

could compare his appearance to the description provided in the

DMV record. See id. at ¶ 8 (“Gorostieta was present at the trial of

the . . . charge now at issue, and thus the jury was able to observe

him and compare his physical appearance to the description in the

records from the prior case.”).

¶ 31 In addition to the DMV record, the prosecution provided

testimony from the arresting officers at trial that Cruickshank was

the same person whom they arrested in 2019 and that the

residence Cruickshank pulled into on the night of the arrest was

the same one that was listed on his driver’s license.

14 ¶ 32 Critically, although the exhibits reflected some minor

inconsistencies concerning the details of the 1993 and 1995

convictions in terms of the case numbers, types of charges, and

conviction dates, none of these inconsistencies went to the essential

elements of felony DUI or DWAI — whether Cruickshank was

previously convicted of three separate instances of DUI or DWAI.

See Linnebur v. People, 2020 CO 79M, ¶ 31 (“[W]e conclude that the

General Assembly intended for the fact of prior convictions to be

treated as a substantive element of felony DUI to be tried to a jury

and found beyond a reasonable doubt . . . .”), abrogated on other

grounds by, People v. Crabtree, 2024 CO 40M. The existence of

those convictions was overwhelmingly supported by the evidence.

See Kessler, ¶ 12. And to the extent the inconsistencies raised any

legitimate issues concerning the credibility of the evidence

demonstrating the prior convictions, those disputes were for the

jury to resolve. See id.

¶ 33 Because the prosecution met its obligation to provide “some

documentary evidence,” as well as sufficiently specific corroborating

evidence of Cruickshank’s identity, Gorostieta, ¶ 26, we reject

15 Cruickshank’s assertion that there was insufficient evidence to

sustain his felony DWAI conviction.

III. Constructive Amendment

¶ 34 Cruickshank contends that the trial court’s wording of the

special interrogatory relating to the prior convictions amounted to a

constructive amendment. Because we conclude that the special

interrogatory amounted to, at most, a harmless simple variance

rather than a constructive amendment, we reject Cruickshank’s

contention.

A. Standard of Review and Applicable Law

¶ 35 We review de novo whether a variance occurred. People v.

Deutsch, 2020 COA 114, ¶ 22.

¶ 36 Colorado recognizes two variance types, a simple variance and

a constructive amendment. Campbell v. People, 2020 CO 49, ¶ 45.

A simple variance occurs when “the charged elements are

unchanged, but the evidence presented at trial proves facts

materially different from those alleged in the indictment.” Deutsch,

¶ 25 (citation omitted). We review preserved simple variance claims

for harmless error. See Hagos v. People, 2012 CO 63, ¶ 12.

Reversal is not required for a simple variance “as long as the proof

16 upon which the conviction is based corresponds to an offense that

was clearly set out in the charging instrument.” Campbell, ¶ 45.

¶ 37 In contrast, a constructive amendment occurs when a jury

instruction “changes an essential element of the charged offense

and thereby alters the substance of the charging instrument.” Bock

v. People, 2024 CO 61, ¶ 14 (quoting People v. Rediger, 2018 CO 32,

¶ 48). A constructive amendment violates the defendant’s

constitutional right to due process because it “subjects the

defendant to the risk of conviction for an offense that was not

originally charged.” People v. Hoggard, 2017 COA 88 ¶ 27, aff’d on

other grounds, 2020 CO 54. Thus, we review a preserved

constructive amendment claim under the constitutional harmless

error standard. See Hagos, ¶ 11.

B. Analysis

¶ 38 At trial, the court gave the following instruction to the jury

regarding whether the prosecution had proved Cruickshank’s prior

DUI and DWAI convictions:

If you find Mr. Cruickshank not guilty of Driving Under the Influence and of Driving While Ability Impaired, disregard this question. If you find Mr. Cruickshank guilty of either Driving Under the Influence with Three or

17 More Prior Offenses or Driving While Ability Impaired with Three or More Prior Offenses in this case, you must answer the following interrogatory by placing an “X” in the appropriate squares.

We, the jury, unanimously and beyond a reasonable doubt, find that the defendant has the following prior convictions arising out of separate and distinct criminal episodes for Driving Under the Influence, Driving Under the Influence per se, Driving While Ability Impaired, or any combination thereof:

i. Adams County, Colorado, Case Number 1993T1095.

[ ] Yes [ ] No

ii. Denver County, Colorado, Case Number 1994C414469.

iii. Douglas County, Colorado, Case Number 2006T4612.

¶ 39 At the jury instruction conference, defense counsel objected to

the special interrogatory because it deviated from the complaint

which included both the case number and conviction date for each

prior offense. The court decided that the special interrogatory did

not need to reference the date of conviction or similar case details

because they were not part of the elements of felony DUI or DWAI.

18 ¶ 40 Cruickshank argues that this modification functioned as a

constructive amendment because the alteration (1) impermissibly

lowered the prosecution’s burden by expanding the original charge

and thus (2) prejudiced Cruickshank because, absent the

modification, he would have challenged the prosecution’s case

differently. He particularly notes that the distinction between the

July 26 and January 26 dates for the 1993 conviction and

inconsistencies in the details of the other convictions were central

to his theory of defense.

¶ 41 The People reason that the modified special interrogatory was

a simple variance rather than a constructive amendment because

the date of the prior felony convictions and similar details were not

an element of felony DUI or DWAI and did not materially alter the

substance of the charged offense. Moreover, the People argue, the

complaint provided Cruickshank with adequate notice of the prior

convictions the prosecution intended to rely on to support the

felony DUI or DWAI charge. See § 42-4-1301(1)(j).

¶ 42 For there to be a constructive amendment, the modification

must change an essential element of the offense in such a way that

it also alters the substance of the charging document. Bock, ¶ 14.

19 Here, the court limited the jury interrogatory to define the type of

qualifying offenses required under the felony DUI and DWAI statute,

the county in which the alleged prior offenses occurred, and the

corresponding case number. Nothing in the statute that governs

felony DUI and DWAI convictions requires the prosecution to prove

the date of a conviction. See Linnebur, ¶ 31. The prosecution was

only required to prove that Cruickshank had three prior convictions

for qualifying offenses.

¶ 43 While in other contexts, the date of conviction may be a

necessary element of the defense, in this instance, it was not. Cf.

People v. Lopez, 140 P.3d 106, 110 (Colo. App. 2005) (explaining

that a date-related variance was material and prejudicial because

the defendant’s failure to register in a timely manner for the sex

offender registry was the material issue related to the defendant’s

defense).

¶ 44 For similar reasons, we are unpersuaded by Cruickshank’s

reference to Colorado’s habitual criminal statute. See § 18-1.3-801,

C.R.S. 2025. In the habitual criminal context, the General

Assembly expressly required the prosecution to prove the date of

the prior felony offenses. See § 18-1.3-803(2), C.R.S. 2025 (“An

20 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.”). Under the felony DUI and DWAI statute, in contrast, the

prosecution need only prove the existence of the prior qualifying

convictions, not the dates the convictions were entered.

§ 42-4-1301(1)(b). The differences between the two statutes

demonstrate that the General Assembly knows how to require a

specific date of conviction when it intends such a requirement. The

General Assembly’s decision not to include that requirement in the

felony DUI and DWAI statute reinforces the conclusion that the

requirement does not exist in that statute. See People v. Griffin,

397 P.3d 1086, 1089 (Colo. App. 2011) (If the legislature intends a

certain interpretation, “it certainly [knows] how to say so.”).

¶ 45 Furthermore, we are unpersuaded that Cruickshank was

prejudiced by the special interrogatory because it impacted a theory

of defense he selected. The decision to focus on the details

surrounding the prior convictions was a strategic choice made by

Cruickshank’s counsel. But these details did not impact the

21 elements of the felony DUI or DWAI charge. To establish the alleged

prior convictions, the prosecution was only required to prove that

Cruickshank was convicted on three prior occasions of DUI or

DWAI. It was not required to prove the date of the prior convictions

or whether the prior convictions involved DUI rather than DWAI.

¶ 46 And for similar reasons, even if we assume that the differing

details between the charging instrument and special interrogatory

rose to the level of a simple variance, those details did not

substantially influence the verdict or affect the fairness of the

proceedings. See Hagos, ¶ 12 (outlining the harmless error

standard). The complaint was sufficient to place Cruickshank on

notice of the prior convictions that the prosecution intended to

prove. See § 42-4-1301(1)(j). Indeed, aside from a conclusory

sentence or two, Cruickshank fails to explain how the discrepancies

between the detailed allegations of the complaint and the special

interrogatory prejudiced his defense. And we do not address

undeveloped arguments. See People v. Relaford, 2016 COA 99,

¶ 70 n.2 (“We do not consider bare or conclusory assertions

presented without argument or development.”). Thus, we discern

no reversible error.

22 IV. Disposition

¶ 47 The judgment is affirmed.

JUDGE LIPINSKY and JUDGE GRAHAM concur.