Peo v. Thomas

• Court: Colorado Court of Appeals
• Decided: August 14, 2025
• Docket: 22CA0901
• Status: Unpublished

Opinion

22CA0901 Peo v Thomas 08-14-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 22CA0901 Larimer County District Court No. 21CR271 Honorable Susan Blanco, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Noah Ray Thomas,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division II Opinion by JUDGE HARRIS Fox and Schutz, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced August 14, 2025

Philip J. Weiser, Attorney General, Jacob R. Lofgren, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Andrew C. Heher, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant ¶1 Defendant, Noah Ray Thomas, was charged with felony driving

under the influence of alcohol (DUI). At trial, the prosecution

introduced evidence of Thomas’s prior drinking-and-driving

convictions. The jury convicted him as charged.1

¶2 On appeal, he raises multiple claims, most related to the

admission of his prior convictions at trial. We reject his claims and

therefore affirm the judgment of conviction.

I. Admission of Prior Convictions

¶3 Thomas contends that the trial court erred by (1) denying his

request to bifurcate the trial; (2) failing to give a more

comprehensive limiting instruction; (3) admitting evidence of his

2011 convictions in violation of CRE 404(b); and (4) permitting a

variance between the charged offense and the offense of conviction.

A. Bifurcation

¶4 The crime of DUI, ordinarily a misdemeanor, is elevated to a

class 4 felony if the defendant has “three or more prior convictions,

arising out of separate and distinct criminal episodes, for DUI . . .

or [driving while ability impaired] (DWAI); vehicular homicide . . . ;

1 Thomas was also convicted of misdemeanor child abuse, but he

does not appeal that conviction.

1 vehicular assault . . . ; or any combination thereof.”

§ 42-4-1301(1)(a), C.R.S. 2024. The fact of prior convictions is an

element of felony DUI that must be proved to the jury beyond a

reasonable doubt. Linnebur v. People, 2020 CO 79M, ¶ 2.

¶5 The amended complaint and information alleged that Thomas

committed DUI and had prior convictions for DUI in 2003, DWAI in

2009, and vehicular homicide in 2011 (in Boulder County Case No.

10CR392). The Boulder County case also resulted in five

convictions for vehicular assault.

¶6 Thomas requested that the court bifurcate for trial the prior

convictions element from the other elements of felony DUI. The

court denied the request.

¶7 On appeal, Thomas argues that the court erred by denying his

request for a bifurcated trial.

¶8 We conclude that his argument is foreclosed by People v.

Kembel, 2023 CO 5. In Kembel, the supreme court held that,

despite the “potential for prejudice to a defendant in a unitary trial,”

“a trial court may not bifurcate the elements of the offense of felony

DUI (or of any offense) during a jury trial.” Id. at ¶¶ 49, 57.

2 ¶9 Thomas says that Kembel is distinguishable, and therefore

inapplicable, because there, the defendant’s prior convictions were

for DUI and DWAI, whereas here, the prior convictions include

vehicular homicide, evidence of which presented greater potential

for prejudice. Kembel’s holding did not turn on the nature of the

prior convictions, though — in fact, the court expressly recognized

that both vehicular homicide and vehicular assault are qualifying

prior offenses. Id. at ¶ 25. The court’s reasoning focused on “the

disruption that bifurcation would inevitably cause in a felony DUI

jury trial,” id. at ¶ 45, a concern that applies equally when the prior

convictions are for DUI and when they are for vehicular homicide or

vehicular assault.

¶ 10 Nor are we persuaded that Kembel is distinguishable based on

the alleged lack of a sufficient limiting instruction in this case. As

Thomas notes, the Kembel court’s analysis relied in part on the

efficacy of contemporaneous and final limiting instructions to

“temper[]” the risk of prejudice from the introduction of prior

convictions. Id. at ¶ 52. But, as we discuss below, the trial court

gave a limiting instruction to which Thomas did not object. And at

any rate, the inadequacy of a limiting instruction would not warrant

3 reversal for a bifurcated trial — it could only warrant reversal for a

unitary trial with a limiting instruction that referenced the

vehicular homicide and vehicular assault convictions.

B. Limiting Instruction

¶ 11 That brings us to Thomas’s complaint about the court’s

limiting instruction, which the People say is waived because

Thomas expressly accepted the prosecution’s limiting instruction

and never asked the court to revise it.

¶ 12 Before trial, the court told defense counsel that it was “happy

to give a limiting instruction” and invited counsel to “raise the issue

and come forward if [he] would like.” Counsel responded that the

prosector had “provide[d] some form of a limiting instruction in the

jury instruction packet.” Thomas never asked the court to read

that instruction (or any revised version) during the evidentiary

portion of the trial, even after the court specifically offered to do so

during testimony about Thomas’s prior convictions.

¶ 13 As forecasted, however, the court included the prosecution’s

proposed limiting instruction in its final instructions to the jury.

You are instructed that the defendant’s prior Driving Under the Influence or Driving While Ability Impaired convictions can only be

4 considered for the limited purpose of deciding whether or not the People have proven that the Defendant has prior Driving Under the Influence or Driving While Ability Impaired convictions.

The fact that the defendant may have prior Driving Under the Influence or Driving While Ability Impaired convictions does not make it more or less likely that he was Driving Under the Influence on January 2, 2021. Thus, you may not consider any of the defendant’s prior Driving Under the Influence or Driving While Ability Impaired convictions as you consider whether or not the defendant was Driving Under the Influence on January 2, 2021.

¶ 14 Thomas now asserts that he is entitled to a new trial because

the limiting instruction referenced only his prior convictions for DUI

and DWAI, not his prior convictions for vehicular homicide and

¶ 15 Even assuming waiver does not bar Thomas’s claim, plain

error review applies, see People v. Griffin, 224 P.3d 292, 298 (Colo.

App. 2009), and under that standard, he is not entitled to relief.

“[A] trial court’s failure to give a limiting instruction sua sponte

does not constitute plain error.” People v. Davis, 2017 COA 40M,

¶ 32; see also People v. Torres, 141 P.3d 931, 935 (Colo. App. 2006)

(“[W]hen, as here, [a] defendant does not object to the lack of

5 contemporaneous limiting instructions or request additional ones,

reversal for lack of a limiting instruction is not required.”).

¶ 16 Regardless, to be plain, the error must be substantial, see

Griffin, 224 P.3d at 298, and any error in failing to give a more

comprehensive limiting instruction is not substantial in light of the

overwhelming evidence of guilt, see People v. Fichtner, 869 P.2d

539, 543 (Colo. 1994) (“[I]f there is overwhelming evidence to

support the conviction,” reversal is not warranted “under a plain

error standard.”).

¶ 17 Thomas’s ex-girlfriend testified that on the night of the

incident, Thomas had been drinking “throughout the day into the

evening,” and that he drank “at least ten” double shots of alcohol.

The officer who conducted the traffic stop said that he could smell

alcohol when he approached the car and that Thomas’s eyes were

bloodshot and watery. A second officer testified that Thomas’s

performance on the roadside sobriety tests indicated that he was

under the influence of alcohol, and the results of the breathalyzer

test showed that Thomas had a blood alcohol content of .13, well

above the legal limit of .08. This evidence was generally

uncontested.

6 C. Admission of the 2011 Convictions

¶ 18 At trial, the prosecution introduced certified copies of

Thomas’s record from the Division of Motor Vehicles (DMV) and of

the sentencing order entered in Case No. 10CR392. The DMV

record and the order showed that in April 2011, in Case No.

10CR392, Thomas was convicted of one count of vehicular homicide

and multiple counts of vehicular assault (the DMV record listed four

counts, while the sentencing order listed five).

¶ 19 Thomas argues, for the first time on appeal, that the evidence

of the 2011 convictions constitutes propensity evidence that was

improperly admitted under CRE 404(b).

¶ 20 CRE 404(b) governs the admissibility of uncharged misconduct

evidence. Under the rule, evidence of the defendant’s prior

misconduct is not admissible to prove propensity to commit a

wrongful act — i.e., that the defendant has a bad character and on

a particular occasion, he acted in conformity with his bad

character. See CRE 404(b)(1). Uncharged misconduct evidence

may be admissible for non-propensity purposes, such as proving

motive, intent, or identity. See CRE 404(b)(2).

7 ¶ 21 But Rule 404(b) is implicated only if the uncharged

misconduct is extrinsic to the charged offense. Rojas v. People,

2022 CO 8, ¶ 44. Intrinsic acts — those that directly prove the

charged offense or occurred contemporaneously with it and

facilitated its commission — fall outside the scope of Rule 404(b).

Id.

¶ 22 In a felony DUI case, evidence of prior qualifying convictions is

intrinsic to the charged offense. People v. Schlehuber, 2025 COA

50, ¶ 57 (“To the extent the Nebraska record was offered to prove

the fact of [the defendant’s] prior DUI conviction, it was intrinsic to

the charged offense” of felony DUI.). The prosecution offered the

DMV record and the sentencing order to prove the fact of the 2011

convictions for vehicular homicide and vehicular assault — an

element of felony DUI. Thus, the evidence was exempt from Rule

404(b). Rojas, ¶ 52.

¶ 23 Thomas says that because the criminal complaint did not

specifically reference the prior vehicular assault convictions,

evidence of that “uncharged misconduct” was necessarily offered to

prove his propensity to drink and drive and therefore its

admissibility falls under Rule 404(b). But the sufficiency of the

8 charging document has nothing to do with the purpose for which

the prior convictions were admitted. The vehicular assault

convictions, like the vehicular homicide conviction, were admitted

to prove that Thomas had a qualifying prior conviction from 2011.

Indeed, Thomas acknowledges as much, by arguing (in a claim we

discuss below) that the felony DUI jury instruction improperly

allowed the jury to rely on any one of his prior vehicular assault

convictions as proof of the prior conviction element of the offense.

D. Variance

¶ 24 Count 1 of the amended complaint and information charged

Thomas with driving a motor vehicle while under the influence of

alcohol or drugs after three prior convictions, including two prior

DUI or DWAI convictions and, as relevant here, “Vehicular Homicide

– DUI on April 7, 2011, in Boulder County, Colorado, in case

number 2010CR392.”

¶ 25 As noted, the prosecution introduced evidence that in addition

to the vehicular homicide count, the convictions in Case No.

10CR392 included multiple counts of vehicular assault.

¶ 26 According to the felony DUI jury instruction, one element the

prosecution had to prove was that Thomas “had three or more prior

9 convictions . . . for DUI, . . . DWAI[,] vehicular homicide, [or]

vehicular assault.”

¶ 27 On appeal, Thomas contends that he was charged with

committing DUI after convictions for DUI, DWAI, and vehicular

homicide, but the jury instructions constructively amended, or the

evidence created a simple variance with, the charging document,

allowing the jury to convict him based on any one of the uncharged

¶ 28 A defendant has a constitutional right to notice of the charges

against him. Hoggard v. People, 2020 CO 54, ¶ 22. In Colorado,

that notice is generally provided through the filing of a complaint or

information. Id. at ¶ 23. A complaint or information is sufficient

when it advises the accused of the charges so that he has a “fair

and adequate opportunity to prepare [his] defense” and is “not

taken by surprise” by the evidence offered at trial. People v.

Martinez, 2024 COA 34, ¶ 21 (citation omitted).

¶ 29 A variance occurs when a charge contained in the charging

document differs from the charge for which a defendant is

convicted. See People v. Gallegos, 260 P.3d 15, 25 (Colo. App.

2010). There are two types of variances: a constructive amendment

10 and a simple variance. “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); see also Esquivel-Castillo v. People,

2016 CO 7, ¶ 13 (A constructive amendment occurs when jury

instructions permit the jury to convict the defendant of an offense

“that is substantively different from any charged in the

information.”). A simple variance occurs when the charging terms

are unchanged, but the evidence at trial proves facts materially

different from those alleged in the charging document. People v.

Deutsch, 2020 COA 114, ¶ 25.

¶ 30 We review de novo whether a variance occurred, see People v.

Carter, 2021 COA 29, ¶ 35, but because Thomas did not preserve

this claim, a plain error standard applies, meaning we will not

reverse the conviction unless Thomas can demonstrate “substantial

prejudice,” Bock, ¶ 24 (reversal for constructive amendment

requires showing of prejudice); People v. Vigil, 2015 COA 88M, ¶ 30

(reversal for simple variance requires showing of prejudice), aff’d,

2019 CO 105.

11 ¶ 31 Even assuming some sort of variance occurred, Thomas has

not specifically alleged, much less demonstrated, any prejudice. He

says only that the conduct for which he could be convicted was

broadened by the prosecution’s evidence and the jury instructions

because, in reaching its verdict, the jury could have relied on the

uncharged vehicular assault convictions. But that is just a way of

saying that a variance occurred, it is not an allegation of prejudice.

And on this record, we do not see how the alleged variance could

have prejudiced Thomas.

¶ 32 A similar situation arose in Campbell v. People, 2020 CO 49, in

the context of habitual criminal proceedings. The information

alleged that the defendant had been convicted of a felony and

identified the case number, the jurisdiction, and the date of

conviction, but it misidentified the felony as possession of a

controlled substance rather than trespassing. Id. at ¶ 52. At the

habitual criminal hearing, the prosecution proved that the

defendant had been convicted of trespass in the listed case. Id. at

¶ 53. Because the charging document put the defendant on notice

that he was alleged to have been convicted of a felony in the

specifically identified case, and the prosecution proved that he was,

12 in fact, convicted of felony trespass in that case, the court

concluded that the variance was not a constructive amendment and

did not prejudice the defendant’s substantial rights. Id. at

¶¶ 53-54.

¶ 33 Here, the amended complaint and information identified a

2011 prior conviction in Boulder County Case No. 10CR392. The

documents associated with that case — the DMV record and the

sentencing order — were presumably provided to Thomas during

discovery, and those documents “plainly revealed” that the

convictions associated with that case number were for both

vehicular homicide and vehicular assault. Id. at ¶ 54. And Thomas

does not argue that he would have challenged the prosecution’s

case differently had the charging document specifically identified

vehicular assault as one of the prior convictions from the 2011

case. Id.; see also Bock, ¶ 25 (a defendant must claim surprise or

lack of notice in order to obtain reversal based on a variance);

People v. Pahl, 169 P.3d 169, 178 (Colo. App. 2006) (A simple

variance did not affect the defendant’s substantial rights where the

“defendant [did] not complain he was unaware of the essential

facts[,] . . . argue he would have challenged the prosecution’s case

13 differently, [or] indicate he could have produced different evidence

in his defense.”).

¶ 34 Therefore, even if there was a variance, Thomas’s substantial

rights were not prejudiced.

II. Admission of the Breathalyzer Test Results

¶ 35 Over Thomas’s objection, the trial court admitted the report of

his breathalyzer test results. Thomas contends that the trial court

erred because the report was hearsay and therefore inadmissible.

¶ 36 Hearsay is “a statement other than one made by the declarant

while testifying at the trial or hearing, offered in evidence to prove

the truth of the matter asserted.” CRE 801(c). A declarant is “a

person who makes a statement.” CRE 801(b). Hearsay statements

are generally not admissible as evidence at trial. CRE 802; People

v. Phillips, 2012 COA 176, ¶ 61.

¶ 37 The report produced by the breathalyzer machine was not

hearsay because “no ‘person’ or ‘declarant’ made a ‘statement’

within the meaning of CRE 801.” People v. Abad, 2021 COA 6,

¶ 54; see also People v. Buckner, 228 P.3d 245, 250 (Colo. App.

2009). The results of the breathalyzer test were generated by a

machine. People v. Hamilton, 2019 COA 101, ¶¶ 24-26 (concluding

14 time stamps and similar information that a machine generates

without human intervention are not “statements” and, thus, are not

hearsay); see also Cranston v. State, 936 N.E.2d 342, 345 (Ind. Ct.

App. 2010) (holding an evidence ticket produced by a chemical

breath machine is not hearsay).

¶ 38 To the extent that Thomas alleges that the identifying

information contained within the report was inadmissible, any

prejudice resulting from its admission was harmless. The

identifying information was cumulative of the officer’s testimony

that he administered the test to Thomas at the police station. See

People v. McFee, 2016 COA 97, ¶ 90 (“When evidence is merely

cumulative, any error in its admission is harmless.”).

III. As-Applied Constitutional Challenge

¶ 39 Finally, Thomas asks us to conclude that section 42-4-1301 is

unconstitutional as applied to him, on the ground that the

prejudice resulting from the admission of his vehicular homicide

and vehicular assault convictions deprived him of a fair trial.

Because his as-applied challenge is unpreserved and undeveloped,

we decline to review it. See, e.g., People v. Mountjoy, 2016 COA 86,

¶ 37 (“Inadequacy of the record . . . disfavors addressing an as-

15 applied challenge for the first time on appeal.”), aff’d on other

grounds, 2018 CO 92M; People v. Durapau, 280 P.3d 42, 49 (Colo.

App. 2011) (declining to review constitutional challenge to statute

where the defendant presented bare and conclusory arguments).

IV. Disposition

¶ 40 The judgment is affirmed.

JUDGE FOX and JUDGE SCHUTZ concur.