22CA1996 Peo v Heath 10-24-2024
COLORADO COURT OF APPEALS
Court of Appeals No. 22CA1996 El Paso County District Court No. 20CR2435 Honorable Jill M. Brady, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Cohen Ellis Heath,
Defendant-Appellant.
JUDGMENT AFFIRMED
Division I Opinion by JUDGE LIPINSKY J. Jones and Sullivan, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced October 24, 2024
Philip J. Weiser, Attorney General, Abigail M. Armstrong, Assistant Attorney General Fellow, Denver, Colorado, for Plaintiff-Appellee
Keyonyu X. O’Connell, Alternate Defense Counsel, Denver, Colorado, for Defendant-Appellant ¶1 Cohen Ellis Heath appeals the judgment of conviction entered
on jury verdicts finding her guilty of first degree murder, robbery,
tampering with a deceased human body, tampering with evidence,
and accessory to murder. We affirm.
I. Background
¶2 The evidence presented at trial showed the following.
¶3 Heath met E.K., a fifteen-year-old, at a behavioral health
facility where the two of them were receiving treatment. (Both
Heath and E.K. are transgender. At the time of trial, Heath used
she/her pronouns, and E.K. used he/him pronouns. We refer to
the parties by those pronouns.)
¶4 E.K. and Heath became friends. Heath proposed that she
move into E.K.’s house, where E.K. lived with his mother, B.K. E.K.
asked B.K. whether Heath could live with them, describing Heath as
a gay seventeen-year-old who had been kicked out of her home.
But E.K. knew that Heath was a divorced nineteen-year-old. B.K.
allowed Heath to live in her basement with E.K., but she would
periodically tell E.K. that she was concerned about the living
arrangement and wanted Heath to move out.
1 ¶5 E.K. and Heath’s friendship grew into a romantic and sexual
relationship. At trial, E.K. testified that he came to realize that the
relationship was unhealthy, that Heath was very controlling, and
that Heath isolated E.K. from B.K. and his friends.
¶6 E.K. testified that, after living with Heath for several months,
Heath raised the idea of killing B.K. Over time, Heath’s plan
became more concrete: E.K. would stab B.K., Heath would collect
and sell B.K.’s belongings, and the pair would run off to Texas
together. Heath used escalating psychological pressure to convince
E.K. to carry out the plan — in part by convincing E.K. that the
final step in his gender transition was to “be a man” by killing B.K.
¶7 One night, while B.K. was sleeping, E.K. entered her bedroom
while wielding a knife and stabbed her twice in the chest. B.K.
wrested the knife from E.K. and attempted to escape from the
house, but she collapsed and died before reaching the front door.
¶8 After B.K. died, Heath told E.K. that she was proud of him.
Heath then asked E.K. whether she could “have sex” with B.K.’s
body, and E.K. assented. Heath undressed and sexually abused
B.K.’s body while E.K. video recorded Heath’s actions using B.K.’s
phone. Heath then dragged B.K.’s body to a location in the living
2 room where it would be less visible from outside the house, covered
it with blankets and dog beds, and positioned a television and dog
gates in front of it. Later, Heath rummaged through B.K.’s
belongings and took rings, clothing, and a Visa card.
¶9 The next morning, B.K.’s boyfriend came looking for her after
she did not show up for work. As he knocked on the door, Heath
and E.K. filled their backpacks with various items, including items
belonging to B.K., and fled through the back door of the house.
Police arrested them nearby a short time later.
¶ 10 The prosecution charged Heath with first degree murder (as a
complicitor), felony murder, robbery, tampering with a deceased
human body, and tampering with evidence. The prosecution also
charged Heath with sexual exploitation of a child (E.K.). The trial
court severed that charge and set it for a separate trial. (Heath
later pleaded guilty to the charge.)
¶ 11 E.K. was similarly charged for his role in B.K.’s death. He
pleaded guilty to second degree murder and was sentenced to forty
years in the custody of the Department of Corrections before
Heath’s case went to trial. E.K. testified for the prosecution at
Heath’s trial.
3 ¶ 12 The trial focused on Heath’s involvement in the planning and
execution of B.K.’s murder. A jury found Heath guilty as charged.
The court also instructed the jury on the lesser nonincluded offense
of accessory to murder, and the jury found Heath guilty of that
charge as well.
¶ 13 At Heath’s sentencing hearing, the court merged her felony
murder and first degree murder convictions. It sentenced Heath to
life without parole in the custody of the Department of Corrections.
II. Discussion
¶ 14 Heath raises three issues on appeal. First, she challenges the
court’s denial of her motion for a mistrial. Second, she contends
that the prosecution did not introduce sufficient evidence to
support her convictions for tampering with a deceased human body
and robbery. Third, she contends that she was prejudiced by a
variance between the complaint and information (the information)
and the evidence presented at trial in support of the robbery charge.
A. Denial of Heath’s Motion for a Mistrial
¶ 15 Heath first claims that the court abused its discretion by
denying her motion for a mistrial after a detective testified regarding
incriminating statements that he claimed he could hear Heath
4 make in a video recording. We conclude that the court did not
abuse its discretion.
1. Additional Background
¶ 16 The prosecution called Detective Kyle Lambert during its case-
in-chief. Lambert testified that, shortly after Heath’s arrest, officers
placed her in a police station interview room equipped with a
surveillance camera and microphone. The prosecutor offered into
evidence a video recording depicting Heath pacing and talking to
herself while alone in the room. The court admitted the recording
into evidence, and the jury watched it in its entirety.
¶ 17 Lambert then testified (and our independent review confirms)
that it is difficult at times to understand what Heath is muttering to
herself on the video recording. But Lambert told the jury that, after
reviewing the video recording, he was able to “pick out” what Heath
was saying at certain parts of the video.
¶ 18 The prosecutor asked Lambert if he could understand Heath’s
statements at timestamp 15:05. Lambert answered, “Apologies to
the Court. It’s, ‘Fuck. I wish we didn’t fuck’n kill that bitch. Why
did we do it? Why did we do it? Don’t blame — cannot blame
[E.K.]’” After Lambert finished answering the question, defense
5 counsel objected, arguing that Lambert’s testimony did not
accurately reflect Heath’s words on the video, that “the evidence can
speak for itself,” and that “the jury can interpret the evidence that’s
been admitted by the District Attorney.”
¶ 19 The court said that, under CRE 701, it would not permit
Lambert to interpret additional statements that Heath made on the
video recording because the jurors were in the same position as
Lambert to hear Heath’s words. But the court declined to strike
Lambert’s prior testimony regarding Heath’s allegedly incriminating
statements because “defense counsel didn’t object until after the
question was answered.”
¶ 20 Upon further reflection, the court advised the parties that it
was “reconsidering” its ruling, would strike Lambert’s testimony,
and would instruct the jury to disregard Lambert’s interpretation of
Heath’s words. In doing so, the court said that Lambert’s
interpretation was “incredibly prejudicial.” The court instructed the
jury as follows:
[A] question was asked of Detective Lambert during his initial questioning by [the prosecutor] about what [Heath] said in Exhibit 338 which was a video of [Heath]. I am striking [Lambert]’s answer to that question
6 and ordering that you disregard that testimony. That means that you are to treat that statement as if you had not heard it and you must not consider it for any purpose.
¶ 21 At the conclusion of Lambert’s testimony, jurors submitted
several questions regarding the video. Two jurors asked whether
the jury would be able to watch the video again. One of them
asked, “Will the jury be able to see that video again to try and hear
what is being said?” (Emphasis added.) With counsel’s approval,
the court instructed the jury that it would receive all evidence,
including the video, at the trial’s conclusion.
¶ 22 Another juror requested that the court ask Lambert, “If we
can’t hear the clip clearly[,] how are you confident in what you are
hearing the defendant saying? Did you listen to an enhanced
version[?]” Yet another juror asked, “Before the prosecution had no
further questions for Det. Lambert, was his interpretation of the
Defendant[’]s words overruled or sustained as testimony?”
¶ 23 The court acknowledged that the latter two questions
suggested that some of the jurors were confused about its earlier
ruling and instruction. Accordingly, the court reiterated its
admonition to the jury:
7 There is a last question that’s again related to the video of the defendant. And the Court will address this question just by reminding the jurors . . . of my instruction before we took a break which is that a question was asked of Detective Lambert during his initial questioning about what [Heath] said in Exhibit 338, which was the video of [Heath]. I am striking . . . [Lambert]’s answer to that question.
And so the Court would order that you disregard that testimony. And that means that you are to act as though you have never heard that testimony and not consider it for any purpose, that particular answer only.
¶ 24 The next morning, defense counsel moved for a mistrial.
Counsel argued that the jurors’ questions evidenced the jury’s
inability to follow the court’s instruction to disregard the stricken
testimony. Counsel also argued that Lambert’s testimony created
an “auditory illusion” that would cause the jurors to “hunt and peck
and try to see if they c[ould] find that statement or something
similar to that statement.”
¶ 25 The court denied defense counsel’s request for a mistrial
because (1) defense counsel did not make a timely objection to
Lambert’s testimony; (2) after defense counsel objected, the court
did not allow Lambert to testify further regarding Heath’s
8 statements on the video recording; (3) the court twice instructed the
jury to disregard the challenged testimony; and (4) two jurors asked
to independently review the video, suggesting that they understood
the court’s instruction.
¶ 26 During its deliberations, the jury asked the court, “Can we
view the video of . . . Heath on a laptop in the room and have the
option to use ear buds? Because the sound is not great in the court
room.” The court answered, “We will bring in a laptop with
speakers. You must use those.”
2. Applicable Law and Standard of Review
¶ 27 Under CRE 701, a lay witness may testify to opinions or
inferences that are “(a) rationally based on the perception of the
witness, (b) helpful to a clear understanding of the witness’[s]
testimony or the determination of a fact in issue, and (c) not based
on scientific, technical, or other specialized knowledge within the
scope of [CRE] 702.” Lay opinion testimony is admissible under
CRE 701 if “it has the effect of describing something that the jurors
could not otherwise experience for themselves by drawing upon the
witness’s sensory and experiential observations that were made as a
firsthand witness to a particular event.” People v. McFee, 2016 COA
9 97, ¶ 76, 412 P.3d 848, 863 (quoting United States v. Freeman, 730
F.3d 590, 595 (6th Cir. 2013)). A witness may not testify to
conclusions that jurors are “competent to reach on their own,” id.;
such opinion testimony is not “helpful” to the jury, as CRE 701
requires.
¶ 28 Thus, if a jury is in “precisely the same position” as a witness
to hear and interpret a defendant’s recorded statements, and if the
witness “was neither present when [the defendant] uttered the
words nor so familiar with [the defendant’s] voice that he was more
likely to correctly identify the contested words” than the jury, the
witness may not interpret what he believes the defendant said.
McFee, ¶ 76, 412 P.3d at 863; see also People v. Vergari, 2022 COA
95, ¶ 19, 521 P.3d 391, 396; People v. Rodriguez, 2021 COA 38M,
¶ 12, 491 P.3d 547, 551.
¶ 29 But the admission of inadmissible evidence does not
necessarily require a mistrial. See People v. Johnson, 2017 COA 11,
¶ 41, 446 P.3d 826, 832. A mistrial is “the most drastic of
remedies.” People v. Owens, 2024 CO 10, ¶ 125, 544 P.3d 1202,
1229 (quoting People v. Collins, 730 P.2d 293, 303 (Colo. 1986)).
10 For this reason, it is warranted “only when the prejudice to the
defendant is too substantial to be remedied by other means.” Id.
¶ 30 A court’s instruction that jurors disregard erroneously
admitted evidence is generally a sufficient remedy. Johnson, ¶ 42,
446 P.3d at 832. Such a curative instruction is only insufficient
when the inadmissible evidence “is so highly prejudicial . . . it is
conceivable that but for its exposure, the jury may not have found
the defendant guilty.” Id. (quoting People v. Everett, 250 P.3d 649,
663 (Colo. App. 2010)). Moreover, “[a] trial court can better
evaluate any adverse effect that improper testimony might have
upon a jury than can a reviewing court.” People v. Ned, 923 P.2d
271, 274 (Colo. App. 1996).
¶ 31 We review the denial of a motion for a mistrial for an abuse of
discretion. People v. Burdette, 2024 COA 38, ¶ 37, 552 P.3d 1108,
1117. A trial court abuses its discretion when its decision is
“manifestly arbitrary, unreasonable, or unfair, or based on an
erroneous understanding or application of the law.” Johnson, ¶ 39,
446 P.3d at 832.
11 3. The Court Did Not Abuse Its Discretion by Denying Heath’s Motion for a Mistrial
¶ 32 While we agree that Lambert’s testimony was inadmissible
under McFee, Heath failed to make a sufficient showing of prejudice
to warrant a mistrial. Thus, the court appropriately exercised its
discretion by denying Heath’s motion for a mistrial.
¶ 33 We agree with the McFee division that a witness may not
interpret recorded statements that the jury is equally equipped to
decipher. Like the jury in McFee, the jury at Heath’s trial was in
“precisely the same position” as Lambert to “hear and interpret”
Heath’s recorded words. McFee, ¶ 76, 412 P.3d at 863. Lambert
did not testify that he used enhancement techniques to discern the
statements. Instead, he asserted that he merely reviewed the video
“numerous times.” Nor did Lambert testify that he had special
familiarity with Heath’s voice that would make him more likely than
a juror “to correctly identify the contested words.” Id.
¶ 34 Thus, his interpretation of Heath’s recorded statements was
inadmissible. But as in McFee, Lambert’s interpretation did not
result in the degree of prejudice sufficient to entitle the defendant to
a mistrial. We reach this conclusion for three reasons.
12 ¶ 35 First, Lambert’s testimony did not result in substantial
prejudice to Heath because the court twice instructed the jury to
disregard the testimony. See Owens, ¶ 130, 544 P.3d at 1230
(reasoning that prejudice to a defendant is reduced when the trial
court “employed several curative measures”). “We presume that the
jury understands and will follow a trial court’s curative
instructions, absent evidence to the contrary.” Id. at ¶ 128, 544
P.3d at 1230. As noted above, following Lambert’s testimony, two
jurors asked the court whether they could watch the video again.
These questions indicated that at least some of the jurors
understood and followed the court’s first curative instruction and
wanted to reach their own independent conclusion regarding
Heath’s statements.
¶ 36 Two juror questions, however, suggested that some of the
jurors did not understand that instruction. But after weighing the
testimony’s prejudicial effect against the efficacy of the court’s
second, more detailed, curative instruction, the court determined
that a mistrial was not warranted. We will not “second-guess the
trial court’s determination regarding . . . prejudice.” Id. at ¶¶ 132-
33, 544 P.3d at 1230.
13 ¶ 37 Significantly, nothing in the record indicates that the jury
disregarded the court’s second instruction. Rather, the record
reflects the opposite. During closing argument, the prosecutor told
the jury, “You will get that video. You determine what [Heath] is
saying in that video. But let me tell you to pay attention to
15:05[-]10.” The court then instructed the jury, “You are the sole
judges of the credibility of each witness and the weight to be given
to the witness’s testimony. . . . You may believe all of the testimony
of a witness, part of it, or none of it.” During its deliberations, the
jury asked the court for access to the video and headphones,
showing that it understood its responsibility to closely review the
video recording to attempt to determine what Heath said.
¶ 38 For these reasons, we conclude that the court took sufficient
steps to cure any prejudice resulting from Lambert’s testimony. See
McFee, ¶ 78, 412 P.3d at 864 (reasoning that prejudice to a
defendant is reduced when the jury independently reviews
recordings and was instructed to come to its own conclusion about
what the defendant said); see also Vergari, ¶ 20, 521 P.3d at 396
(“[E]ven though it was improper for [a witness] to narrate the videos
14 as they played, the jury was free to disregard this opinion and come
to its own conclusions, as the trial court explained.”).
¶ 39 Second, Lambert’s testimony did not cause substantial
prejudice to Heath because she admitted her responsibility for
B.K.’s death in other, more comprehensible parts of the video
recording. She clearly said on the recording:
• “They cannot blame [E.K.]”
• “This is all my fault. All on me.”
• “Why would you do this to [E.K.], why?”
• “I’m gonna be fucked.”
Heath’s trial counsel even conceded that Heath can be heard
saying, “This is all my fault,” on the video.
¶ 40 Thus, any prejudice resulting from Lambert’s testimony was
diminished when the jury heard Heath clearly admit fault on the
video recording.
¶ 41 Third, Lambert’s testimony did not result in substantial
prejudice to Heath because other evidence supported her complicity
in B.K.’s death. See Rodriguez, ¶ 12, 491 P.3d at 551. E.K.
testified that killing B.K. was Heath’s idea and that E.K. would not
have stabbed B.K. but for Heath’s influence. Moreover, the jury 15 viewed the video recording depicting Heath sexually abusing B.K.’s
body and heard testimony that Heath was wearing B.K.’s rings
when she was arrested.
¶ 42 Heath’s argument regarding her theory of prejudice does not
persuade us that the court erred by denying her request for a
mistrial. She asserts that, because “nobody could decipher what
was being said in the video,” the jury was “left with Lambert’s
interpretation.” After reviewing the video, we disagree. As we
explain above, Heath can be heard on the recording admitting her
role in B.K.’s death, even if her audible statements do not precisely
match Lambert’s characterization of Heath’s words.
¶ 43 In addition, Heath points to an unrelated jury question
regarding the trial court’s complicity instruction. But we cannot
discern from Heath’s opening brief how that question has any
bearing on her prejudice argument.
¶ 44 For these reasons, we perceive no abuse of discretion in the
court’s denial of Heath’s motion for a mistrial.
B. Sufficiency of the Evidence
¶ 45 Heath next contends that the evidence introduced at trial was
insufficient to support her convictions for tampering with a
16 deceased human body and robbery. (Heath also argues that,
because the prosecution failed to prove the predicate offense of
robbery beyond a reasonable doubt, insufficient evidence supported
her felony murder conviction. However, that argument is moot
because the court merged Heath’s first degree murder and felony
murder convictions.)
1. Applicable Law and Standard of Review
¶ 46 “The Due Process Clauses of the United States and Colorado
Constitutions require proof of guilt beyond a reasonable doubt on
each of the essential elements of a crime.” People v. Duncan, 109
P.3d 1044, 1045 (Colo. App. 2004). To decide whether the
prosecution presented sufficient evidence to support the
defendant’s conviction, we ask “whether the relevant evidence, both
direct and circumstantial, when 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.” People v. Donald,
2020 CO 24, ¶ 18, 461 P.3d 4, 7 (quoting Clark v. People, 232 P.3d
1287, 1291 (Colo. 2010)).
17 ¶ 47 Defendants may raise a sufficiency of evidence argument for
the first time on appeal. McCoy v. People, 2019 CO 44, ¶ 2, 442
P.3d 379, 382. “[W]e review the record de novo to determine
whether the evidence before the jury was sufficient both in quantity
and quality to sustain the convictions.” Dempsey v. People, 117
P.3d 800, 807 (Colo. 2005).
2. The Evidence Was Sufficient to Support Heath’s Conviction for Tampering with a Deceased Human Body
¶ 48 The prosecutor was required to prove beyond a reasonable
doubt that Heath tampered with a deceased human body in
violation of section 18-8-610.5(1), C.R.S. 2024:
A person commits tampering with a deceased human body if, believing that an official proceeding is pending, in progress, or about to be instituted and acting without legal right or authority, the person willfully destroys, mutilates, conceals, removes, or alters a human body . . . with intent to impair its . . . appearance or availability in the official proceedings.
¶ 49 According to Heath, no evidence proved that she (1) “believed
an official proceeding was about to be instituted” or (2) possessed
the requisite “intent to impair” the body’s appearance or availability.
We disagree.
18 ¶ 50 First, the circumstantial evidence established beyond a
reasonable doubt that Heath believed an official proceeding was
pending. A police investigation into a homicide is an official
proceeding. See Taylor v. United States, 267 A.3d 1051, 1061 (D.C.
2022) (holding that a likely police investigation constitutes an
“official proceeding” for purposes of the offense of tampering with
physical evidence). E.K. testified that Heath’s plan was to escape to
Texas with E.K. after he killed B.K. The jury could reasonably infer
from Heath’s plan that she knew a criminal investigation into B.K.’s
death was imminent. Heath also fled the house when B.K.’s
boyfriend knocked on the door, further showing that she knew a
proceeding was pending.
¶ 51 Moreover, the jury heard E.K.’s testimony that Heath moved
B.K.’s body to the living room, covered it with blankets and dog
beds, and positioned a television and dog gates in front of it. The
evidence further revealed that Heath or E.K. closed the living room
blinds and cleaned the crime scene.
¶ 52 From this evidence, the jury could reasonably have inferred
that Heath intended to conceal B.K.’s body to put off its discovery.
In addition, the evidence supported the inference that Heath sought
19 to delay the discovery of B.K.’s body so she would have sufficient
time to collect and resell certain of B.K.’s belongings. More
generally, the evidence showed that Heath was aware that police
officers investigate homicides.
¶ 53 Thus, the circumstantial evidence was sufficient to establish
that Heath knew an official proceeding was pending. See People v.
Newton, 2022 COA 59, ¶ 29, 517 P.3d 79, 86 (explaining that, in
the related context of evidence tampering, “a defendant’s attempt to
conceal an item is sufficient to establish the defendant’s belief that
an official proceeding was about to be instituted”).
¶ 54 Second, the jury could infer from E.K.’s testimony that Heath
concealed a deceased human body with the requisite intent. E.K.
testified how Heath moved, covered, and concealed B.K.’s body.
¶ 55 Heath asserts that this evidence failed to prove that Heath
intended to impair the appearance or availability of B.K.’s body.
“But a defendant’s intent can, and often must, be proved by
circumstantial evidence.” People in Interest of J.O., 2022 COA 65M,
¶ 20, 517 P.3d 1259, 1263; see also People v. Taylor, 655 P.2d 382,
384 (Colo. 1982) (“[W]e have repeatedly recognized that direct proof
of the defendant’s state of mind is rarely available and,
20 consequently, resort must necessarily be had to circumstantial
evidence on this element.”). “A jury may properly infer intent from
the defendant’s conduct and the circumstances of the offense.”
People v. Hines, 2021 COA 45, ¶ 37, 491 P.3d 578, 586. The only
reasonable inference that could be drawn from Heath’s conduct and
the surrounding circumstances was that Heath intended to impair
the appearance of B.K.’s body so that it would not be immediately
discovered.
¶ 56 For these reasons, sufficient evidence supported Heath’s
conviction for tampering with a deceased human body.
3. The Evidence Was Sufficient to Support Heath’s Conviction for Robbery
¶ 57 The prosecution was required to prove beyond a reasonable
doubt that Heath committed robbery in violation of section
18-4-301(1), C.R.S. 2024. “A person who knowingly takes anything
of value from the person or presence of another by the use of force,
threats, or intimidation commits robbery.” Id.
¶ 58 The evidence at trial showed that Heath took at least one (and
possibly two) of B.K.’s rings, including a wedding ring that B.K.
stored in her home office. (B.K. was divorced from E.K.’s father.)
21 Heath also took E.K.’s father’s wedding ring — which E.K. kept in
his room. Moreover, Heath walked off with B.K.’s Visa card, which
B.K. kept in her purse, and several articles of clothing that Heath
found in B.K.’s bedroom.
¶ 59 Heath does not contest that each was an item “of value” or
that she and E.K. procured those items “by the use of force.” See
id. Nor does Heath argue that she could not commit a robbery
against someone who was already dead. Therefore, we do not
address these issues. See Compos v. People, 2021 CO 19, ¶ 35, 484
P.3d 159, 165 (“Our adversary system is designed around the
premise that the parties know what is best for them, and are
responsible for advancing the facts and arguments entitling them to
relief.” (quoting Greenlaw v. United States, 554 U.S. 237, 243-44
(2008))) (alterations omitted).
¶ 60 Rather, Heath argues that the evidence was insufficient to
sustain her robbery conviction because she did not take the items
from B.K.’s “person or presence,” within the meaning of section
18-4-301. Specifically, Heath argues that, because B.K. died in the
entry way and living room area of her home and the objects were
22 located in different parts of the house, they were not in B.K.’s
“presence” when Heath took them. We are unpersuaded.
¶ 61 “For property to be in a victim’s ‘presence,’ the victim must be
exercising, or have the right to exercise, control over the item
taken.” People v. Mortenson, 2023 COA 92, ¶ 8, 541 P.3d 639, 642.
The property must be “so within the victim’s reach, inspection or
observation that [the victim] would be able to retain control over the
property but for the force, threats, or intimidation directed by the
perpetrator against the victim.” People v. Williams, 2012 COA 165,
¶ 38, 297 P.3d 1011, 1018 (quoting People v. Bartowsheski, 661
P.2d 235, 244 (Colo. 1983)). “‘[P]resence’ in the context of robbery
‘is not so much a matter of eyesight as it is one of proximity and
control . . . .’” Bartowsheski, 661 P.2d at 244 (quoting W. LaFave
and A. Scott, Handbook on Criminal Law § 94 at 696 (1972)). Thus,
“the ‘presence’ element is broad enough to encompass the situation
where the victim of the robbery, against whom the force, threats, or
intimidation is directed, is present in one room of a family home
and the taking occurs within another room.” Id.
¶ 62 We conclude that B.K.’s wedding ring, Visa card, and clothing
were within B.K.’s presence at the time Heath took them. Because
23 these items belonged to B.K., she had the right to exercise control
over them. Although Heath took the items from various rooms in
B.K.’s house, B.K. kept all of them inside her home, which was
within her inspection and control, meaning that she could have
prevented Heath from taking them had E.K. not used deadly force
against her. See id.
¶ 63 Finally, Heath challenges the prosecution’s theory at trial that
she also committed robbery by removing B.K.’s night shirt and
underwear before sexually abusing B.K.’s body. We are skeptical
that removing clothing to commit a sexual act constitutes a taking
within the meaning of the robbery statute. See Merriam-Webster
Dictionary, https://perma.cc/65G8-3H42 (to “take” is “to get into
one’s hands or into one’s possession, power, or control” or “to
transfer into one’s own keeping”). Nevertheless, we need not decide
whether Heath’s removal of B.K.’s clothing was a robbery. The
evidence showed that Heath took rings, a Visa card, and clothing
from B.K.’s home. That evidence alone was sufficient for the jury to
conclude that Heath was guilty of robbery beyond a reasonable
doubt.
24 C. Variance
¶ 64 Heath’s final claim of error is that, during closing argument,
the prosecution “expanded the bases upon which Heath could be
convicted” of robbery by identifying specific property that had not
been identified in the information. (Heath argues that this
purported error also requires reversal of her conviction for felony
murder, because robbery was the predicate offense for such
conviction. This argument is moot, however, because, as noted
above in Part II.B, the court merged Heath’s felony murder and first
degree murder convictions.)
¶ 65 “The U.S. and Colorado Constitutions guarantee defendants
the right to be notified of the charges against them.” People v.
Martinez, 2024 COA 34, ¶ 21, 552 P.3d 551, 556 (quoting Hoggard
v. People, 2020 CO 54, ¶ 22, 465 P.3d 34, 40). An information
provides such notice by apprising a defendant of the offense
charged and the surrounding factual circumstances so the
defendant can adequately defend against the charge. Id.
¶ 66 “A variance occurs when the charge contained in the charging
instrument differs from the charge for which a defendant is
25 convicted.” Campbell v. People, 2020 CO 49, ¶ 45, 464 P.3d 759,
768. “Generally, there are two types of variances: simple variances
and constructive amendments.” People v. Deutsch, 2020 COA 114,
¶ 25, 471 P.3d 1266, 1273.
¶ 67 “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.” Id.
(quoting People v. Pahl, 169 P.3d 169, 177 (Colo. App. 2006)). “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.” Campbell,
¶ 45, 464 P.3d at 768.
¶ 68 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, 555 P.3d 629, 632-33 (quoting
People v. Rediger, 2018 CO 32, ¶ 48, 416 P.3d 893, 903).
¶ 69 We review de novo whether a variance occurred. People v.
Rail, 2016 COA 24, ¶ 48, 457 P.3d 608, 617, abrogated on other
grounds by Bock, ¶ 19, 555 P.3d at 633. Because Heath’s counsel
26 did not preserve this issue for appeal, reversal is required only if the
court erred by permitting a variance and such error was plain. See
Bock, ¶ 14, 555 P.3d at 632-33; Deutsch, ¶ 22, 471 P.3d at 1272.
An error is plain if it is obvious and “so undermined the
fundamental fairness of the trial itself . . . as to cast serious doubt
on the reliability of the judgment of conviction.” Hagos v. People,
2012 CO 63, ¶ 14, 288 P.3d 116, 120 (quoting People v. Miller, 113
P.3d 743, 750 (Colo. 2005)).
2. Even if the Court Erred by Allowing a Variance, the Error Was Not Plain
¶ 70 The information set out the offense of robbery as follows:
“Between and including January 25, 2020, and April 28, 2020,
[Heath] unlawfully, feloniously, and knowingly took a thing of value,
namely: jewelry, from the person or presence of [B.K.] by the use of
force, threats or intimidation; in violation of section 18-4-301(1),
C.R.S.”
¶ 71 The corresponding jury instruction defined the elements of
robbery as follows:
1. That the defendant,
2. in the State of Colorado, at or about the date and place charged,
27 3. knowingly,
4. took anything of value,
5. from the person or presence of another,
6. by the use of force, threats, or intimidation.
¶ 72 The information and the jury instructions consistently
reflected the “took anything of value” element of robbery. See
§ 18-4-301(1). Indeed, the information adequately put Heath on
notice that she would have to defend against the allegation that she
took a thing of value from B.K. — the robbery offense of which she
was later convicted. There was no constructive amendment
because the jury instructions did not change an essential element
of the offense of robbery. See Bock, ¶ 14; 555 P.3d at 632-33; see
also Pahl, 169 P.3d at 178 (“By adding other components of the
statutory definition of ‘security’ to the one listed in the indictment,
the instruction did not change the elements of the offense, as the
prosecution still had to prove defendant engaged in specified
conduct in connection with a security.”).
¶ 73 Nevertheless, Heath argues that, because the information
identified jewelry as the only “thing of value,” she was unprepared
28 to defend against the prosecution’s allegation at trial that Heath
took additional property, including B.K.’s Visa card and clothing.
¶ 74 A discrepancy between the information and the evidence
introduced at trial creates a simple variance only if the evidence
proved facts “materially different” from those alleged in the
information. Deutsch, ¶ 25, 471 P.3d at 1273. Whether the
evidence at trial proves “materially different” facts when it
establishes the facts described in the information plus additional
facts is a close question. However, we conclude that a simple
variance occurred because the prosecution expanded the charge
beyond the facts alleged in the information. See People v. Vigil,
2015 COA 88M, ¶ 32, 459 P.3d 553, 562 (holding that a simple
variance occurred when the prosecutor alleged in an oral bill of
particulars that the defendant burglarized three structures but
referred to a fourth structure during closing argument), aff’d, 2019
CO 105, 455 P.3d 332; Rail, ¶ 53, 457 P.3d at 617 (holding that,
when trial testimony indicated that a particular incident occurred
outside the timeframe alleged in the information, the discrepancy
“epitomizes a simple variance”); People v. Smith, 2018 CO 33, ¶¶ 26-
31, 416 P.3d 886, 892 (holding that any error was not plain when
29 the prosecution specified a named victim in the information but
omitted the named victim in the jury instructions, arguably
allowing the jury to consider whether the defendant committed the
act against two different victims).
¶ 75 In any event, even if there was a simple variance, any error
was not plain because it was not substantial. See Hagos, ¶ 14, 288
P.3d at 120. A variance does not prejudice a defendant’s
substantial rights when the defendant “does not complain [she] was
unaware of the essential facts” supporting the charge; “does not
argue [she] would have challenged the prosecution’s case
differently”; does not “indicate [she] could have produced different
evidence in [her] defense”; and “did not file a motion for a bill of
particulars to clarify the indictment.” Pahl, 169 P.3d at 178.
¶ 76 Heath’s counsel did not claim lack of awareness that the police
had discovered and collected B.K.’s Visa card and clothing. Heath’s
counsel had an opportunity to confront the prosecution’s
allegations at trial, and Heath does not argue that her counsel
would have presented a different defense or produced different
evidence if the attorney had received notice regarding either the
Visa card or the clothing earlier in the proceedings. Nor did Heath’s
30 counsel file a motion for a bill of particulars. For these reasons, we
conclude that any simple variance did not substantially impair
Heath’s ability to present a defense.
¶ 77 Further, overwhelming evidence supported Heath’s robbery
conviction on the basis charged in the information — that Heath
was wearing B.K.’s wedding ring at the time of her arrest. Thus, the
proof upon which Heath’s conviction was based corresponded to
facts “clearly set out in the charging instrument.” Campbell, ¶ 45,
464 P.3d at 768.
¶ 78 Accordingly, we conclude that any error caused by the simple
variance was not plain.
III. Disposition
¶ 79 The judgment is affirmed.
JUDGE J. JONES and JUDGE SULLIVAN concur.