v. People , 2020 CO 70 ( 2020 )

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ADVANCE SHEET HEADNOTE
September 14, 2020
2020 CO 70
No. 19SC98, Fisher v. People—Criminal Procedure—Charging Instruments —
Amendments to the Information.
The supreme court considers whether an amendment to the information
after trial had begun was permissible under Crim. P. 7(e). Specifically, the
supreme court considers whether the amendment in this case that expanded the
date range of the charged offenses prejudiced the defendant’s substantial right to
prepare and present his defense. The supreme court holds that, while expanding
the date range does not automatically prejudice a defendant’s substantial rights,
under the totality of the circumstances of this case, the mid-trial amendment here
prejudiced Fisher’s substantial right to fully prepare and present his alibi defense.
Accordingly, the supreme court reverses the judgment of the court of appeals,
vacates Fisher’s convictions, and remands for a new trial.
The Supreme Court of the State of Colorado
2 East 14th Avenue • Denver, Colorado 80203
2020 CO 70
Supreme Court Case No. 19SC98
Certiorari to the Colorado Court of Appeals
Court of Appeals Case No. 17CA132
Petitioner:
Gregory Brad Fisher,
v.
Respondent:
The People of the State of Colorado.
Judgment Reversed
en banc
September 14, 2020
Attorneys for Petitioner:
McClintock Law Firm, LLC
Elizabeth A. McClintock
Colorado Springs, Colorado
Attorneys for Respondent:
Philip J. Weiser, Attorney General
Erin K. Grundy, Senior Assistant Attorney General
Denver, Colorado
Attorneys for Amicus Curiae Colorado Criminal Defense Bar:
Squire Patton Boggs (US) LLP
Brent R. Owen
Jacob Davis
Denver, Colorado
JUSTICE BOATRIGHT delivered the Opinion of the Court.
2
¶1 On the third day of Gregory Fisher’s trial for five counts of sexual assault on
a child, and after the prosecution had presented the majority of its case, the
prosecution moved to amend the date range of the charged offenses. The
proposed amendment expanded the date range for the charged offenses by
approximately six weeks from the original complaint and information. The trial
court granted the motion over defense counsel’s objection. The jury ultimately
found Fisher guilty on all five counts.
¶2 Fisher appealed, contending that the amendment prejudiced his right to
present his defense. A split division of the court of appeals disagreed and affirmed
his convictions, holding that the amendment was not one of substance and did not
prejudice Fisher’s substantial rights to conduct his defense. People v. Fisher,
No. 17CA132, ¶ 35 (Nov. 29, 2018).
¶3 We granted certiorari to determine “[w]hether an amendment to an
information expanding the date range after trial began is permissible under the
due process clauses of the U.S. and Colorado Constitutions and Crim. P. 7(e).”
Crim. P. 7(e) permits a mid-trial amendment only if the amendment (1) is one of
form, (2) does not charge an additional or different offense, and (3) does not
prejudice the defendant’s substantial rights. We hold that, while expanding the
date range does not automatically prejudice a defendant’s substantial rights,
under the totality of the circumstances of this case, the mid-trial amendment here
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prejudiced Fisher’s substantial right to fully prepare and present his alibi defense.
Accordingly, we reverse the judgment of the court of appeals, vacate Fisher’s
convictions, and remand for a new trial.
I. Facts and Procedural History
¶4 In 2015, Z.F., age twelve, told her mother that her father, Fisher, had sexually
assaulted her on numerous occasions. In an interview with police, Z.F. told a
forensic investigator that the earliest assault occurred either between her birthday
(November 15, 2014) and Thanksgiving (November 27, 2014), or sometime before
Halloween, and that the last incident occurred sometime before her father was
deployed overseas in March 2015. The People charged Fisher with five counts of
sexual assault on a child by one in a position of trust as a pattern of abuse. 1 Each
count in the complaint and information charging Fisher stated that the alleged
incidents had occurred “[b]etween and including November 16, 2014 and March
29, 2015.” Fisher’s defense was, in part, that he had an alibi for some of the dates
in the specified date range, including the first alleged offense.
¶5 At trial, Z.F. was the first witness for the prosecution. Her testimony
regarding the date of the first alleged offense changed from what she had told the
1The People also charged Fisher with five counts of sexual assault on a child by
one in a position of trust (no pattern) but dismissed these counts prior to trial.
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forensic investigator. Specifically, she testified that the first assault occurred at the
end of that school year (May 2014). But on cross-examination, Z.F. said that she
had no reason to disagree with her prior statement to the investigator that the first
assault occurred after her birthday on November 15, 2014, but before
Thanksgiving. Later that day, the prosecution played the recording from Z.F.’s
forensic interview, in which she stated that the first assault occurred either
between her birthday and Thanksgiving or before Halloween. That same day, the
prosecution called Z.F.’s mother, who testified that Fisher had been gone for
military training starting sometime in October 2014 and returned approximately
on Thanksgiving.
¶6 On the morning of the third day of trial, after it had called five of its six
witnesses, the prosecution moved to amend the information to expand the starting
date of the charging range from November 16, 2014, to October 1, 2014. The
prosecution stated that the victim had “testified it was October and disagrees with
the statement she gave to [the forensic examiner]. So the People are moving to
amend [the information] back to October 2014.” Defense counsel objected, arguing
that permitting an amendment to the date range prejudiced a substantial right of
Fisher’s:
We have a right to prepare for defense. We have a right to bring in
witnesses. We have a right to prepare our case based on what’s in
front of us. What was in front of us was a date of November 16th.
Now we are going back an entire month. We are sitting here at the
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close of the case. I don’t have any time to contact any witnesses, do
any investigation for that time period prior to that. I’m left basically
ambushed and so I believe that it does prejudice a substantial right of
my client to his defense.
[W]hen we are preparing for trial, I have got an information that says
November 16th. And that’s what I prepped. And I just believe that’s
a substantial right for the defendant. And it severely handicaps his
defense and constitutional rights.
¶7 The trial court initially indicated that it was “not necessarily inclined to
grant” the amendment because “it seems . . . this is a significant issue in the case.”
The court went on to explain that “[t]he opening statement was framed upon a
date timeline. And to now at almost the end of the evidence move to amend the
date timeline strikes me as significant and quite prejudicial.” However, after
hearing arguments, the court reversed course and granted the prosecution’s
request to amend the information, finding that the change was “only procedural
and does not impact the substantive rights of defense available to Mr. Fisher.”
Accordingly, the starting period of the alleged assaults in the information was
expanded by roughly six weeks, from November 16, 2014, to October 1, 2014.
¶8 Even with the amendment expanding the dates of the charges, Fisher still
pursued his alibi defense, testifying that he was in California for training from late
October until Thanksgiving day. He did not present an alibi for early or
mid-October. Ultimately, the jury rejected his defense and found him guilty on all
five counts.
6
¶9 Fisher appealed, arguing that the amendment impeded his ability to prepare
and present a defense for the extended date range. A split division of the court of
appeals disagreed and affirmed his convictions. Fisher, ¶¶ 1, 35. The majority first
explained that Fisher’s alibi defense was “only a mildly viable defense to any of
the assaults” because it “contradicted some, but not all, of the incidents.” Id. at
¶¶ 23–25. It then reasoned that Fisher’s “alibi defense was not prejudiced by the
amendment to the complaint because the change included the dates of his alibi
and did not impair his ability to present his alibi defense.” Id. at ¶ 27. It also noted
that the exact date of the offense is not an essential element to the charge of sexual
assault on a child. Id. at ¶ 28. The majority thus concluded that “[e]xpanding the
date range did not alter the offense or require a change in his defense strategy.”
Id. at ¶ 31. Therefore, it held that “the amendment was not one of substance” and
that it “did not prejudice [Fisher’s] substantial right to conduct his defense.” Id. at
¶ 35.
¶10 Judge Berger dissented. He argued that the proper question under Crim.
P. 7(e) is “whether there was prejudice” to a defendant’s substantial right, “not how
much prejudice the defendant suffered.” Fisher, ¶ 75 (Berger, J., dissenting). Judge
Berger explained that while the mid-trial amendment did not totally destroy
Fisher’s alibi defense, it still adversely affected his ability to prepare and present
his defense. Id. at ¶ 74. Accordingly, applying the plain language of Crim. P. 7(e),
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Judge Berger concluded that this adverse effect constituted prejudice to Fisher’s
substantial right to present a defense, and he would have granted Fisher a new
trial. Id. at ¶ 75.
¶11 We granted certiorari and now reverse.
II. Analysis
¶12 We begin by outlining the appropriate standard of review. Next, we detail
the relevant law concerning amendments to the information under Crim. P. 7(e)
and explain the standard for determining whether such an amendment prejudices
a defendant’s substantial rights. We then apply that law to the facts and hold that,
while expanding a date range does not automatically prejudice a defendant’s
substantial rights, under the totality of the circumstances of this case, the mid-trial
amendment here prejudiced Fisher’s substantial right to fully prepare and present
his alibi defense. Accordingly, we reverse the judgment of the court of appeals,
vacate Fisher’s convictions, and remand for a new trial.
A. Standard of Review
¶13 We review a trial court’s decision to allow the prosecution to amend an
information for an abuse of discretion. People v. Washam, 2018 CO 19, ¶ 13,
413 P.3d 1261, 1264. A trial court abuses its discretion when its ruling is manifestly
arbitrary, unreasonable, or unfair, or when the trial court misapplies or
misconstrues the law. People v. Ehrnstein, 2018 CO 40, ¶ 13, 417 P.3d 813, 816.
8
B. Crim. P. 7(e)
¶14 An information is a charging document that advises a defendant of the
charges against him. Washam, ¶ 14, 413 P.3d at 1264. An information serves two
interests “of a constitutional dimension: (1) it provides the defendant with notice
of the offense charged, as well as the factual circumstances surrounding the
offense so that the defendant can adequately defend him or herself; and (2) it
protects the defendant from further prosecution for the same offense.” People v.
Williams, 984 P.2d 56, 60 (Colo. 1999). When an information is defective, it may be
cured by timely amendment. Washam, ¶ 15, 413 P.3d at 1264.
¶15 Crim. P. 7(e) governs how and when such an amendment may take place.
In its entirety, that rule provides:
The court may permit an information to be amended as to form or
substance at any time prior to trial; the court may permit it to be amended
as to form at any time before the verdict or finding if no additional or
different offense is charged and if substantial rights of the defendant are
not prejudiced.
(Emphases added.) Unpacking Crim. P. 7(e), the prosecution may amend the
information as to form or substance “at any time prior to trial.” However, in
instances where the prosecution seeks to amend the information after trial has
begun—as was the case here—Crim. P. 7(e) dictates that it may do so only if the
amendment “(1) was one of form, (2) did not charge an additional or different
9
offense, and (3) did not prejudice [the defendant’s] substantial rights.” Washam,
¶ 16, 413 P.3d at 1264. All three conditions must be satisfied.
¶16 In this case, we focus our analysis on the third condition: whether the
mid-trial amendment prejudiced Fisher’s substantial rights. If it did, then we need
not decide whether the amendment was one of form or substance, nor whether it
charged an additional or different offense, and we will thus limit out analysis
accordingly.2
¶17 When conducting this analysis, it is important to recognize that, as Judge
Berger pointed out in his dissent, Crim. P. 7(e) does not ask how much the
defendant has been prejudiced. Rather, the rule asks whether a defendant’s
substantial rights have been prejudiced at all. Recognizing the difference between
those two questions is critical. Asking how much the defendant has been
prejudiced assumes that some prejudice to the defendant’s substantial rights is
acceptable under Crim. P. 7(e), whereas asking if the defendant’s substantial rights
have been prejudiced recognizes that any prejudice to the defendant’s substantial
rights forecloses an amendment to the information during trial. Crim. P. 7(e)’s
2 The court of appeals concluded that the amendment was one of form, not
substance, partly because the exact date of the offense was not an essential element
of the charges. Fisher, ¶¶ 28, 35. Because we focus on whether the amendment
affected Fisher’s substantial rights, we express no opinion on this issue.
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focus on whether prejudice to the defendant’s substantial rights occurred at all
makes sense given that it is difficult, if not impossible, to know how much a
mid-trial amendment to the information under certain facts—like those presented
here—ultimately prejudiced the defendant. Accordingly, the amount to which the
right was prejudiced is not relevant to the determination under Crim. P. 7(e).
¶18 Determining whether a defendant’s substantial rights have been prejudiced
necessarily involves a case-by-case examination, and courts must look at the
totality of the circumstances. See Washam, ¶¶ 30–32, 413 P.3d at 1266–67 (looking
at several non-exhaustive factors to conclude that an amendment narrowing the
date range in the information did not prejudice the defendant’s substantial rights).
Factors relevant to the inquiry include but are not limited to: (1) the theory of the
defense, id. at ¶ 30, 413 P.3d at 1266 (looking, in part, at the defendant’s defense
strategy and whether his ability to prepare or present that defense was impaired);
(2) the timing of the amendment, Cervantes v. People, 715 P.2d 783, 788 (Colo. 1986)
(citing the fact that neither side had yet presented evidence as one factor
supporting the decision to allow the amendment); and (3) whether the amendment
requires a different defense strategy, see People v. Metcalf, 926 P.2d 133, 140 (Colo.
App. 1996) (explaining that “the amendment did not . . . require a different
defense strategy from the one the defendant had chosen under the initial
information”). No single factor is dispositive, and courts should “look to the
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surrounding circumstances” in the case to determine whether prejudice has
resulted. Williams, 984 P.2d at 64.
¶19 With this framework in mind, we now turn to the question of whether the
amendment in this case was permissible.
C. The Amendment Prejudiced Fisher’s Substantial Rights
¶20 A defendant’s right to prepare and present a defense to a criminal charge
qualifies as a “substantial right” under Crim. P. 7(e). See People v. Garcia, 940 P.2d
357, 362 (Colo. 1997) (noting that the information must “give [the defendant] a fair
and adequate opportunity to prepare his defense, and . . . ensure that [the
defendant] is not taken by surprise because of evidence offered at the time of
trial”); see also Metcalf, 926 P.2d at 139 (explaining that the “purposes served by a
criminal information are” in part “to enable the defendant to prepare a defense”).
No one here disputes that. Therefore, we need to examine whether the
amendment here prejudiced Fisher’s right to prepare and present a defense.
Fisher argues that it did. He contends that the amendment to the information
prejudiced his substantial rights because expanding the date range on the third
day of trial adversely affected his ability to prepare and present his alibi defense.
Conversely, the People contend that the amendment was permissible, reasoning
that Fisher was still able to present his partial alibi, the amendment did not totally
destroy the defense, and Fisher’s alibi defense was only mildly viable anyway. In
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so doing, the People, like the majority in the division, focus on the extent of the
prejudice and argue that the amendment was permissible under Crim. P. 7(e)
because it did not substantially prejudice Fisher.
¶21 To determine if the expansion of the dates prejudiced Fisher’s substantial
right to prepare and present a defense, we begin by recognizing that expanding a
date range alone does not automatically prejudice a defendant’s ability to prepare
or present a defense. But we also recognize that the type of defense asserted is a
factor that must be considered to make that determination. Here, Fisher asserted
that he had an alibi for part of the date range in the original information.
Therefore, the dates of the alleged assaults were a significant issue in this case.
Furthermore, prior to the amendment, Fisher’s alibi placed him out of the state for
the first alleged assault, making the start of the date range even more important to
his defense. Recall that the date range was November 16, 2014, to March 29, 2015,
and the prosecution’s theory was that the first assault occurred after November 16
but before Thanksgiving (November 27). Based on this information, Fisher came
to trial prepared with an alibi defense for part of the specified date range—namely,
that he could not have committed the first alleged assault because he was out of
the state from late October until Thanksgiving Day. As Judge Berger noted, had
the trial court denied the amendment and the jury accepted Fisher’s alibi, the result
“would have warranted an acquittal on count one.” Fisher, ¶ 65 (Berger, J.,
13
dissenting). Ultimately, we cannot know what the jury would have decided had
the amendment not occurred. What we do know, however, is that the amendment
changed the date range from one where the first alleged assault fell squarely
within Fisher’s alibi timeline (November 16 through November 27) to one where
it fell partly outside that timeline (October 1 through November 27). Therefore,
the amendment plainly diminished the viability of Fisher’s alibi defense for the
first count. Had Fisher been timely advised of the expanded date range, he surely
would have investigated whether he had additional alibis or another viable
defense for those dates.3 Thus, the amendment impaired his ability to prepare his
defense.
¶22 The timing of the amendment—our second factor—is also significant. It
occurred on the third day of trial, near the close of the prosecution’s case; the
3 The People argue, in part, that expanding the timeline was permissible here
because Fisher had access to all of the relevant material through discovery, such
that he would have known that the victim had stated in her forensic interview that
the first incident might have occurred before the date specified in the information.
We are not persuaded. To accept this argument, would—in effect—mean that the
dates charged in the information are irrelevant as long as the defendant has access
to all of the information in discovery. The People elected the dates in the
information and Fisher was entitled to rely on that decision. Accordingly, we
reject the People’s suggestion that an erroneous mid-trial amendment to the
information under these facts is rectified by the fact that the defendant had access
to all of the relevant material in discovery.
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prosecution only had one more witness to call before it rested. Not only did
expanding the timeline this late in the trial prevent Fisher from finding witnesses
or marshaling evidence to dispute the expanded timeframe of the charges, it also
prevented him from adequately cross-examining the prosecution’s witnesses as he
understandably limited his examination to the date range in the original
complaint. Indeed, integral to Fisher’s defense was that Z.F. lacked credibility.
Arguably, if the jury had determined that the first alleged assault did not occur—
i.e., that Z.F.’s testimony was not credible—then that conclusion had the potential
to influence the verdict on the remaining counts. However, the prosecution
moved to amend the dates after Z.F. testified and after Fisher had cross-examined
her about the first alleged assault. Hence, expanding the timeline, in effect, not
only diminished the viability of Fisher’s alibi defense but the timing of the
amendment also weakened his ability to call into question Z.F.’s credibility overall.
As a result, he did not have the opportunity, or frankly even the need, to try to cast
doubt on the expanded date range during the prosecution’s case-in-chief.
¶23 Of course, the mere fact that an amendment occurs during trial does not
necessarily mean that it prejudices the defendant’s right to prepare and present
his defense. Indeed, we recently held in Washam that, under the particular facts of
that case, a mid-trial amendment was not reversible error. ¶ 32, 413 P.3d at 1267.
In Washam, after the jury was sworn but before the presentation of any evidence,
15
the prosecution moved to amend the information to narrow the date range for the
charged offenses. Id. at ¶ 7, 413 P.3d at 1263. In holding that the amendment had
not prejudiced Washam’s substantial rights, we noted that he “was always notified
of the time frame in the case against him” and that narrowing the date range did
not impede his ability to prepare or present his defense. Id. at ¶ 30, 413 P.3d at
1266.
¶24 The opposite is true here. In this case, the prosecution moved to expand the
date range for the charged offenses. Hence, unlike in Washam, Fisher was not
“always notified of the time frame in the case against him,” which is particularly
significant given that Fisher’s defense was that he had an alibi for the earliest dates
in the original information. Accordingly, the timing of the amendment, coupled
with the fact that it negatively affected Fisher’s alibi defense, prejudiced Fisher’s
substantial right to present and prepare his defense.4
¶25 In sum, Crim P. 7(e) does not ask the court to consider how much prejudice
Fisher suffered, but rather asks whether the substantial rights of Fisher were
prejudiced. Here, based on the totality of the circumstances, the mid-trial
4 We reject the People’s suggestion that the fact that Fisher did not request a
continuance after the trial court permitted the amendment somehow changes the
inquiry under Crim. P. 7(e).
16
amendment that expanded the date range adversely affected Fisher’s substantial
right to prepare and present his alibi defense. That adverse effect constitutes
prejudice to Fisher’s substantial rights under Crim. P. 7(e). The trial court,
therefore, abused its discretion in permitting this mid-trial amendment. And
because this error “affected the fairness of the trial proceedings” and “impairs the
reliability of [the] conviction,” this abuse of discretion constitutes reversible error.
People v. Jefferson, 2017 CO 35, ¶ 26, 393 P.3d 494, 499; see also DeBella v. People,
233 P.3d 664, 667 (Colo. 2010).
III. Conclusion
¶26 For the aforementioned reasons, we reverse the judgment of the court of
appeals, vacate Fisher’s convictions, and remand for a new trial.
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