23CA1061 Peo v Viars 12-18-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 23CA1061 El Paso County District Court No. 19CR7879 Honorable Deborah J. Grohs, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Jeffrey Carl Viars,
Defendant-Appellant.
JUDGMENT AFFIRMED
Division V Opinion by JUDGE PAWAR Freyre and Yun, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced December 18, 2025
Philip J. Weiser, Attorney General, Jenna Baker, Assistant Attorney General Fellow, Denver, Colorado, for Plaintiff-Appellee
Mark G. Walta, Alternate Defense Counsel, Littleton, Colorado, for Defendant- Appellant ¶1 Defendant, Jeffrey Carl Viars, appeals his convictions of
various offenses arising out of an incident in which he broke into
his child’s mother’s apartment. We affirm.
I. Background
¶2 The victim and Viars were involved in an on-and-off romantic
relationship and had a son together. The victim lived in an
apartment with their one-year-old son. There was a protection
order in place prohibiting Viars from being in the victim’s home and
contacting her.
¶3 Despite the protection order, the victim sometimes allowed
Viars into her home. In July 2019, the Department of Human
Services told her that failing to comply with the protection order
(letting Viars into her home) could affect her parental rights. A few
months later, in September 2019, the victim moved to remove the
protection order. That motion was denied.
¶4 On December 9, 2019, two days before the charged offenses
took place, Viars was at the victim’s home when the victim told him
to leave and locked him out. For the next two days, Viars stayed in
a car behind the victim’s home, periodically yelling up to her asking
1 for various items or to use the bathroom. The victim ignored these
requests.
¶5 On December 11, 2019, Viars used a tire iron to break into the
victim’s locked apartment. Once inside, he saw that the victim was
on the phone with the police and left.
¶6 Viars was charged with second degree burglary, first degree
criminal trespass, possession of burglary tools, violation of a
protection order, and criminal mischief. All the charges were based
on the events of December 11. Consequently, it was not clear
whether the pre-December 11 events described above would be
relevant and admissible at trial.
¶7 Before trial, the prosecution moved to admit various incidents
that occurred between Viars and the victim before December 11 as
res gestae or under CRE 404(b). In a written pretrial ruling, the
court determined that only two pre-December 11 events were
admissible: the existence of the protection order and the denial of
the victim’s motion to remove the protection order.
¶8 At trial, the court decided that defense counsel’s cross-
examination of the victim opened the door to admitting evidence of
additional pre-December 11 events, including the victim’s testimony
2 that in the weeks leading up to December 11, Viars would
sometimes become angry and destroy her property. The jury found
Viars guilty of the charged offenses and he was convicted and
sentenced accordingly.
¶9 Viars appeals, arguing that the trial court erred by (1)
determining that defense counsel opened the door to the admission
of additional pre-December 11 evidence; (2) constructively
amending the criminal mischief charge; and (3) convicting him of
criminal mischief despite insufficient evidence of that offense. We
conclude that none of these arguments warrant relief.
II. Opening the Door
¶ 10 We review a trial court’s ruling that defense counsel opened
the door to admitting otherwise inadmissible evidence for an abuse
of discretion. People v. Johnson, 2021 CO 35, ¶ 16. Even if the trial
court abused its discretion, we need not reverse if the error was
harmless. See Pernell v. People, 2018 CO 13, ¶ 25. An evidentiary
error is harmless if the properly admitted evidence overwhelmingly
establishes the defendant’s guilt. Id. We conclude that regardless
of whether the trial court abused its discretion by admitting the
3 challenged testimony from the victim, the evidence of Viars’ guilt
was overwhelming.
¶ 11 In his trial testimony, Viars admitted to violating the
protection order. He also admitted to having “popped the lock
open” with a tire iron to enter the victim’s home. And the evidence
was undisputed that Viars breaking into the victim’s home caused
some damage. Thus, regardless of whether the victim’s challenged
testimony was admissible, Viars’ own testimony overwhelmingly
established his guilt. We therefore conclude that this alleged error
does not warrant relief.
III. Alleged Constructive Amendment
¶ 12 The complaint and information charged Viars with criminal
mischief, alleging that he caused aggregate damage of less than
$300. The jury instructions did not require the jury to find that
Viars caused a specific dollar amount of damage, only that he
caused damage. Viars contends that this discrepancy constituted a
constructive amendment. We disagree.
¶ 13 A constructive amendment occurs if a court “changes an
essential element of the charged offense and thereby alters the
substance of the charging instrument.” People v. Hoggard, 2017
4 COA 88, ¶ 27 (quoting People v. Rodriguez, 914 P.2d 230, 257 (Colo.
1996)), aff’d on other grounds, 2020 CO 54. Crucially, the essential
elements of criminal mischief do not include the value of the
damage caused.
¶ 14 Section 18-4-501(1), C.R.S. 2019,1 sets out these essential
elements: “A person commits criminal mischief when he or she
knowingly damages the real or personal property of one or more
other persons . . . in the course of a single criminal episode.” In
subsection (4) the statute explains that criminal mischief is a
different class of crime (misdemeanor or felony) based on the dollar
value of damage caused. § 18-4-501(4). This makes the dollar
amount of the damage a sentence enhancer for criminal mischief,
not an element of the offense. People v. Knapp, 2020 COA 107, ¶
78 (“[T]he value of the property damaged operates as a sentence
enhancer rather than an element of the offense of criminal
mischief.”).
1 Because the relevant portions of section 18-4-501, C.R.S. 2019,
have been amended, we cite the version in effect on the date the incident occurred. See Ch. 462, sec. 210, § 18-4-501(4), 2021 Colo. Sess. Laws 3178.
5 ¶ 15 Thus, the discrepancy between the charging document and
the jury instructions involved only a sentence enhancer, not an
essential element of the offense. And because a constructive
amendment must impact an essential element of the offense, there
was no constructive amendment here. See Hoggard, ¶ 27.
¶ 16 Viars presents no other argument about why the absence of
an instruction or interrogatory on the amount of damage caused
was error, so we do not address this issue further.
IV. Sufficiency of the Evidence
¶ 17 Lastly, Viars argues that the evidence was insufficient to
support the criminal mischief conviction because the prosecution
Free access — add to your briefcase to read the full text and ask questions with AI
23CA1061 Peo v Viars 12-18-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 23CA1061 El Paso County District Court No. 19CR7879 Honorable Deborah J. Grohs, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Jeffrey Carl Viars,
Defendant-Appellant.
JUDGMENT AFFIRMED
Division V Opinion by JUDGE PAWAR Freyre and Yun, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced December 18, 2025
Philip J. Weiser, Attorney General, Jenna Baker, Assistant Attorney General Fellow, Denver, Colorado, for Plaintiff-Appellee
Mark G. Walta, Alternate Defense Counsel, Littleton, Colorado, for Defendant- Appellant ¶1 Defendant, Jeffrey Carl Viars, appeals his convictions of
various offenses arising out of an incident in which he broke into
his child’s mother’s apartment. We affirm.
I. Background
¶2 The victim and Viars were involved in an on-and-off romantic
relationship and had a son together. The victim lived in an
apartment with their one-year-old son. There was a protection
order in place prohibiting Viars from being in the victim’s home and
contacting her.
¶3 Despite the protection order, the victim sometimes allowed
Viars into her home. In July 2019, the Department of Human
Services told her that failing to comply with the protection order
(letting Viars into her home) could affect her parental rights. A few
months later, in September 2019, the victim moved to remove the
protection order. That motion was denied.
¶4 On December 9, 2019, two days before the charged offenses
took place, Viars was at the victim’s home when the victim told him
to leave and locked him out. For the next two days, Viars stayed in
a car behind the victim’s home, periodically yelling up to her asking
1 for various items or to use the bathroom. The victim ignored these
requests.
¶5 On December 11, 2019, Viars used a tire iron to break into the
victim’s locked apartment. Once inside, he saw that the victim was
on the phone with the police and left.
¶6 Viars was charged with second degree burglary, first degree
criminal trespass, possession of burglary tools, violation of a
protection order, and criminal mischief. All the charges were based
on the events of December 11. Consequently, it was not clear
whether the pre-December 11 events described above would be
relevant and admissible at trial.
¶7 Before trial, the prosecution moved to admit various incidents
that occurred between Viars and the victim before December 11 as
res gestae or under CRE 404(b). In a written pretrial ruling, the
court determined that only two pre-December 11 events were
admissible: the existence of the protection order and the denial of
the victim’s motion to remove the protection order.
¶8 At trial, the court decided that defense counsel’s cross-
examination of the victim opened the door to admitting evidence of
additional pre-December 11 events, including the victim’s testimony
2 that in the weeks leading up to December 11, Viars would
sometimes become angry and destroy her property. The jury found
Viars guilty of the charged offenses and he was convicted and
sentenced accordingly.
¶9 Viars appeals, arguing that the trial court erred by (1)
determining that defense counsel opened the door to the admission
of additional pre-December 11 evidence; (2) constructively
amending the criminal mischief charge; and (3) convicting him of
criminal mischief despite insufficient evidence of that offense. We
conclude that none of these arguments warrant relief.
II. Opening the Door
¶ 10 We review a trial court’s ruling that defense counsel opened
the door to admitting otherwise inadmissible evidence for an abuse
of discretion. People v. Johnson, 2021 CO 35, ¶ 16. Even if the trial
court abused its discretion, we need not reverse if the error was
harmless. See Pernell v. People, 2018 CO 13, ¶ 25. An evidentiary
error is harmless if the properly admitted evidence overwhelmingly
establishes the defendant’s guilt. Id. We conclude that regardless
of whether the trial court abused its discretion by admitting the
3 challenged testimony from the victim, the evidence of Viars’ guilt
was overwhelming.
¶ 11 In his trial testimony, Viars admitted to violating the
protection order. He also admitted to having “popped the lock
open” with a tire iron to enter the victim’s home. And the evidence
was undisputed that Viars breaking into the victim’s home caused
some damage. Thus, regardless of whether the victim’s challenged
testimony was admissible, Viars’ own testimony overwhelmingly
established his guilt. We therefore conclude that this alleged error
does not warrant relief.
III. Alleged Constructive Amendment
¶ 12 The complaint and information charged Viars with criminal
mischief, alleging that he caused aggregate damage of less than
$300. The jury instructions did not require the jury to find that
Viars caused a specific dollar amount of damage, only that he
caused damage. Viars contends that this discrepancy constituted a
constructive amendment. We disagree.
¶ 13 A constructive amendment occurs if a court “changes an
essential element of the charged offense and thereby alters the
substance of the charging instrument.” People v. Hoggard, 2017
4 COA 88, ¶ 27 (quoting People v. Rodriguez, 914 P.2d 230, 257 (Colo.
1996)), aff’d on other grounds, 2020 CO 54. Crucially, the essential
elements of criminal mischief do not include the value of the
damage caused.
¶ 14 Section 18-4-501(1), C.R.S. 2019,1 sets out these essential
elements: “A person commits criminal mischief when he or she
knowingly damages the real or personal property of one or more
other persons . . . in the course of a single criminal episode.” In
subsection (4) the statute explains that criminal mischief is a
different class of crime (misdemeanor or felony) based on the dollar
value of damage caused. § 18-4-501(4). This makes the dollar
amount of the damage a sentence enhancer for criminal mischief,
not an element of the offense. People v. Knapp, 2020 COA 107, ¶
78 (“[T]he value of the property damaged operates as a sentence
enhancer rather than an element of the offense of criminal
mischief.”).
1 Because the relevant portions of section 18-4-501, C.R.S. 2019,
have been amended, we cite the version in effect on the date the incident occurred. See Ch. 462, sec. 210, § 18-4-501(4), 2021 Colo. Sess. Laws 3178.
5 ¶ 15 Thus, the discrepancy between the charging document and
the jury instructions involved only a sentence enhancer, not an
essential element of the offense. And because a constructive
amendment must impact an essential element of the offense, there
was no constructive amendment here. See Hoggard, ¶ 27.
¶ 16 Viars presents no other argument about why the absence of
an instruction or interrogatory on the amount of damage caused
was error, so we do not address this issue further.
IV. Sufficiency of the Evidence
¶ 17 Lastly, Viars argues that the evidence was insufficient to
support the criminal mischief conviction because the prosecution
presented no evidence of the dollar amount of the damage he
caused. As we understand it, Viars concedes, and we agree, that
there was sufficient evidence to support the jury’s determination
that he caused some damage. He contends only that there was no
evidence to support the specific dollar amount of that damage. We
conclude that no such evidence was necessary.
¶ 18 Viars was convicted of criminal mischief as a class 3
misdemeanor, which at the time applied to criminal mischief
offenses involving damage of “less than three hundred dollars.”
6 § 18-4-501(4)(a). Again, Viars concedes that he caused some
damage. And say he is correct that the prosecution presented no
evidence of the dollar amount of that damage. This would mean
that the prosecution had proved that Viars caused zero dollars of
damage. Because zero dollars is less than three hundred dollars,
this was sufficient to prove criminal mischief as a class 3
misdemeanor under section 18-4-501(4)(a). We therefore reject
Viars’ sufficiency argument.
V. Disposition
¶ 19 The judgment of conviction is affirmed.
JUDGE FREYRE and JUDGE YUN concur.