DISTRICT COURT, ARAPAHOE COUNTY, COLORADO




  


 






 

Court Address: 7325 South Potomac Street

Centennial, Colorado 80112

Plaintiff/
Appellee:
vs.

THE PEOPLE OF THE STATE OF

COLORADO

Defendant/
Appellant:

JOHN MICHAEL BOWLEN

Case Number:
2016 CR 31100
Div.: 21

ORDER Re: Appeal to Vacate Conviction for Lack of Jurisdiction

Having reviewed the Opening Brief of the appeal filed by the defendant on the
conviction in 15M1994, and the Answer and Reply briefs and all referenced materials,
and otherwise being fully advised of the premise of the appeal, the Court rules as follows:
A.

Procedural and Factual Background.

1.
Based on the Record on Appeal [R. at __], the Transcript of hearings and trial
[Tr. at __], and the Courts file, the following events occurred in this case:
a.
At 10:31 p.m. on June 13, 2015, defendant John Bowlen was placed
under arrest by Officer M. Gillis of the Glendale Police Department based on the
following charges set forth in the Statement in Support of Warrantless Arrest:
Charge(s): 1. Telecommunication Crimes/An Act of Domestic Violence per
18-6-800.3 & 18-6-801.6 Statute No. 18-9-3-9(2)(a) M3
2. Harassment Strike, Kick, Shove/An Act of Domestic Violence
per 18-6-800.3 & 18-6-801 Statute No. 18-9-111(1)(a) M3
[R. at 17 (emphasis added)].
b.
Later on June 3, 2015, at 11:56 p.m., defendant was formally charged by
Officer R. Montour with two offenses by Summons and Complaint:
Charge No. 1: Section 18-9-111 CRS Harassment, An Act of Domestic Violence
18-6-800.3 and 18-6-801.6

Charge No. 2: Section 18-9-309(2)(a) CRS Telecommunication Crime, An Act of

Domestic Violence 18-6-800.3 and 18-6-801.6.
[R. at 20 (emphasis added)].
c.
On the morning of trial on April 13, 2016, prior to beginning selection of the
jury, counsel for the People moved to amend the Complaint to add Charge No. 3
Obstruction of Telephone Service C.R.S. 18-9-306.5 (M-1), and if granted, to dismiss
Charge No. 2 Access, Use, Manipulate, or Damage a Telecommunications Device
Without Authority (M-3). The Court denied the Peoples motions.
d.
Later on the morning of trial on April 13, 2016, prior to beginning selection
of the jury, counsel for defendant moved the trial court to dismiss Charge No. 1
Harassment for failure of the Complaint to charge the statutory subsection under C.R.S.
18-9-111:
MR. STEINBERG: At this point, we'd move to dismiss Count 1 for failure to state
a crime. And what I mean by that is, Count 1 is defective as well. If the Court
looks at Count 1, it states the Defendant violated harassment, 18-9-111, no
subsection is endorsed and as the Court knows, pursuant to statute -- could I
have that book, please?
THE COURT: On the summons itself, do you mean?
MR. STEINBERG: Yes, Sir, and I didn't receive an amendment, unless I missed it.
[Tr. at 24: 9-17].
e.
Without any motion or participation by counsel for the People, the trial
court denied the defendants motion to dismiss during the following colloquy:
THE COURT: Well, I'm just looking, my register of actions lists it as subsection
1(a), strike, shove, kick. The affidavit for warrantless arrest, which originally
requested the arrest of the Defendant, it says harassment, strike, shoved, kicked,
so that -- and it does specify 1(a). I suppose if there's a summons, it doesn't
specify it; that's a different issue.
MR. STEINBERG: That's the issue, the summons does not.
.
.
.
THE COURT: All right. The Court believes the Defense is clearly on notice given
the documents in the case, given discovery in the case, and so the Court will
construe this as a [sic] amendment as to form, not as to substance for what it's
worth. So it 18-9-111.1(a), harassment by striking, shoving, kicking, or otherwise
causing physical contact.
2

Any further pretrial issues, Mr. Steinberg?

MR. STEINBERG: No, Sir.
[Tr. at 24:18 25:13].
f.
During trial, testimony by the victim of defendant shoving her was
received [Tr. at 192-193].
g.
At the conclusion of a two-day jury trial, the jury was instructed regarding
Count 2 Harassment, including the reference to subsection (1)(a) of 18-9-111 that
the defendant allegedly struck, shoved, kicked, or otherwise touched a person, or
subjected her to physical contact which was added by amendment by the trial judge
[R. at 141 Inst. No. 10]. Defendant did not object to including the subsection (1)(a)
language in this instruction, or tender any alternate instruction [Tr. at 3-6 & 13].
B.
2.

Issue on Appeal.

The issue on appeal before the Court is stated alternatively by the parties:

Defendant: Did the county court lack jurisdiction because the charging document
failed to state an offense [with specificity]?
People: This case does not present a jurisdictional issue. The issue is whether,
prior to trial, the trial court abused its discretion in permitting amendment of Count [One]
of the complaint.
C.

Jurisdiction of This Court.

3.
Appeal of a criminal conviction from the County Court is to the District Court
pursuant to the Colorado Constitution, Art. VI 17 and C.R.S. 13-6-309.5(1).
D.

Legal Analysis.

4.
Where the issue under review on appeal concerns only legal, as opposed to
factual, questions however, the lower court's judgment is subject to independent review
on appeal. Evans v. Romer, 854 P.2d 1270, 1274 (Colo. 1993).

The People mistakenly refer to the Harassment charge as Count Two instead of Count One in the
Complaint [Response at 1; R. at 20]. The Harassment charge is, however, referred to as Charge 2 in
the Statement in Support of Warrantless Arrest [R. at 17].

(1)

Clarifying and classifying defendants issue on appeal.

5.
Before this Court is able to, ultimately, address the discrete issue which the
defendant presents on appeal, the Court must clarify the law regarding amendment of a
criminal complaint/information and classify the defendants motion to dismiss Count 1
Harassment within that context.
6.
Procedurally, defendant moved the trial court to dismiss Count 1 Harassment
prior to jury selection, and the trial court entered its Bench Order on the issue prior to
jury selection [Tr. at 24:18 25:13].
7.
Consequently, the Court finds that the issue on appeal was raised and addressed
prior to trial in the context of an amendment to the Complaint/Information under
Colo.R.Crim.P. 7(e). See People v. Quinn, 794 P.2d 1066, 1068-1069 (Colo. App. 1990)
(trial has commenced for the purpose of the right to speedy trial when jury selection
begins).
(a)

Form v. substance.

8.
The threshold issue under Rule 7(e) is whether an amendment to a criminal
complaint/information prior to trial attempts to add a new charge against the defendant,
or merely to correct a technical defect to the form of an existing charge in order to
advise the defendant of the charge against him/her:
a.
The Colorado Supreme Court has addressed the legal sufficiency of a
criminal complaint and information on many occasions:
An information is sufficient if it advises the defendant of the charges he is facing
so that he can adequately defend himself and be protected from further
prosecution for the same offense. The notice given to a defendant of the charges
against him should be sufficient to ensure that he is not taken by surprise by the
evidence offered at trial. An information need not follow the exact wording of the
statute that defines the offense charged in the information. However, an
information that fails to charge an essential element of an offense is defective. The
sufficiency of an information is a matter of jurisdiction, so any conviction based on
an information requiring major amendment is void.
Cervantes v. People, 715 P.2d 783, 785-786 (Colo. 1986)(citations omitted).
b.
The timing which governs amending an insufficient complaint/information
is generally addressed in Colo.R.Crim.P. 7(e):

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.
(Emphasis added). Crim.P. 7(e) is to be construed liberally to avoid the dismissal of
cases for technical irregularities in an information that can be cured through amendment.
Cervantes, 715 P.2d at 786; People v. Bowen, 658 P.2d 269, 270 (Colo. 1983).
c.
The underlying facts addressed by the Supreme Court in Cervantes
provide a stark outline of the distinction between those technical irregularities in the
form of a complaint/information and substantive defects:
(1)
In Cervantes, after the trial court dismissed a very specific charge of
first degree assault against the defendant which involved a police officer, the prosecution
amended the charge to second degree assault, but the amended information did not
specify which of the six factually distinct subsections alleging the different types of
conduct under which he was charged. Id. at 784-785. 2 After the jury had been sworn
(i.e., the trial had commenced), the trial court permitted the prosecution to further amend
the charge, adding language of one of the factually-specific subsections. After being
convicted of second degree assault on the officer, the defendant appealed on grounds
that the amendment was substantive, not merely one of form, and should not have been
permitted after trial commenced. Id. at 785.

At the time of the incident involved in Cervantes, C.R.S. 183203 read in relevant part as follows:

(1) A person commits the crime of assault in the second degree if:
(a) With intent to cause serious bodily injury to another person, he does cause such injury to any person; or
(b) With intent to cause bodily injury to another person, he causes or attempts to cause such injury to any
person by means of a deadly weapon; or
(c) With intent to prevent one whom he knows, or should know, to be a peace officer or fireman from
performing a lawful duty, he intentionally causes bodily injury to any person; or
(d) He recklessly causes serious bodily injury to another person by means of a deadly weapon; or
(e) For a purpose other than lawful medical or therapeutic treatment, he intentionally causes stupor,
unconsciousness, or other physical or mental impairment or injury to another person by administering to
him, without his consent, a drug, substance, or preparation capable of producing the intended harm; or
(f) While lawfully confined or in custody, he violently applies physical force against the person of a peace
officer or fireman engaged in the performance of his duties or while lawfully confined or in custody as a
result of being charged with or convicted of a crime, he violently applies physical force against a person
engaged in the performance of his duties while employed by or under contract with a detention facility, as
defined in section 188203(3), and the person committing the offense knows or reasonably should know
that the victim is a peace officer or fireman engaged in the performance of his duties or a person engaged
in the performance of his duties while employed by or under contract with a detention facility....
Cervantes, 715 P.2d at 785, fn. 4.

The present case involves the amendment of an information after the jury was
chosen and sworn, not an amendment prior to trial. Therefore, under the
standards of Crim.P. 7(e), an amendment was permissible only if it was one of
form, not substance, and if it charged no different offense and prejudiced no
substantial rights of the defendant.
Id. at 786 (emphasis added).
(2)
Although determining the substantive sufficiency of a criminal
charge is confined to the four corners of the complaint/information, the Supreme Court
in Cervantes distinguishes the analysis of a form v. substance determination as being
much broader:
In determining the sufficiency of a particular count alleged in an information, we
have restricted our examination to the four corners of that count to make sure
that the essential elements of a crime were alleged therein directly or
incorporated by specific reference, and we have not allowed a defect in one
count to be compensated for by averments contained in another count. However,
our examination has never been, and should not be, similarly restricted when we
are deciding whether an information as a whole so adequately advises a
defendant of the charges against him that an amendment to that information can
be considered one of form. To the contrary, in evaluating the form/substance
question for the purpose of a motion to amend, a count in an information cannot
be viewed as setting forth a naked charge isolated from any surrounding
circumstances.
Id. at 786 (citations omitted)(emphasis added).
(3)
The Supreme Court then analyzed all of the information available to
the defendant when the second degree assault charge was added to the complaint,
including the dismissed first degree assault charge and the identification of the police
officer in the amended charge, and determined that, even though neither the exact
language of the subsection nor a specific citation to the subsection was included in the
amended complaint, the defendant had enough information prior to trial to identify the
specific charge:
The facts in the present case demonstrate that the information, viewed together
with the circumstances surrounding its initial amendment before trial, sufficiently
advised the defendant of the charges against him.
. . . Even without looking at the amended information, Cervantes at this point
should have realized that he was being charged with second degree assault on
Officer Tymkowych.

Id. at 786. See also Esquivel-Castillo v. People, 364 P.3d 885, (Colo. 2016)(In each
case the appellate court simply considered . . . the totality of circumstances, including
any other charges, to determine whether the defendant's substantial rights had been
prejudiced by a lack of particularity in alleging the required specific intent element of
burglary).
The notice inquiry requires a reviewing court to ascertain ... whether the
indictment or information contains the elements of the offense intended to be
charged and sufficiently apprises the defendant of what he must be prepared to
meet. Pemberton, 813 F.2d at 631 (quoting Russell v. United States, 369 U.S.
749, 76364, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962)).
People v. Williams, 984 P.2d 56, 69 fn. 3 (Colo. 1999), as mod. on denial of reh'g
(9/10/99).
9.
With one important exception, the facts and procedural history of the case before
this Court on appeal are remarkably similar to those before the Supreme Court in
Cervantes:
a.
Although the Affidavit of the arresting officer contained the complete charge
of Harassment under 18-9-111(1)(a) [R. at 17], the Complaint/Information only stated
the general statutory section of 18-9-111 without the specific factual circumstance
under subsection (1)(a) of strikes, shoves, etc. [R. at 20].
b.
On October 27, 2015, during a hearing on defendants pretrial motions,
testimony was received from Officer Gillis about the victims statement that the
defendant had shoved her during an argument [R. at 36-37].
c.
During the pre-trial conference on April 13, 2016, just before jury selection,
counsel for defendant moved to dismiss Count 1 based on the lack of fact-based
specificity of the charge under one of the subsections. The trial judge noted that, given
the documents in the case, given discovery in the case, the defendant was on notice
that the Harassment charge was based on subsection (1)(a) involving shoving, and
then sua sponte amended Count 1 to include fact-specific subsection (1)(a) [Tr. at 24].
d.
The distinction between the facts in Cervantes and the case at bar is, of
course, that in Cervantes, the prosecution moved to amend the complaint/information,
while the trial judge below acted sua sponte without any participation or motion by the
prosecution.
10.
Notwithstanding the trial courts sua sponte action [which will be addressed in
depth separately in D(3) below], based on the legal standard under Cervantes set
forth above and the undisputed facts in this case, the Court finds as follows:

a.
Just as the fact-specific subsection need not be included in the original
complaint in Cervantes and could be added by pretrial amendment, so the fact-specific
subsection (1)(a) to the Harassment charge under 18-9-111 need not have been
included in the original Complaint/Information against the defendant, provided that, at
the time of the amendment on April 13, 2016, the defendant had been adequately
notified based on the totality of the circumstances communicated to him prior to trial that
the Harassment charge was based on the allegation that he shoved the victim.
b.
Prior to trial and the amendment of Charge No. 1 on April 13, 2016,
defendant was on notice of the following:
(1)
The 6/3/15 Complaint/Information indicated he was charged with
Harassment with intent to harass, annoy, or alarm the victim [R. at 20].
(2)
The 6/3/15 Affidavit of the arresting officer added that the
Harassment was based on strike, kick, shove under subsection (1)(a) of 18-9-111
[R. at 17].
(3)
During the 10/26/15 motions hearing, testimony was received from
the arresting officer that the defendant had shoved the victim during an argument
[R. at 36-37].
c.
Based on the totality of the circumstances, the Court finds that the
defendant was provided with sufficient notice of the factual specificity of the Harassment
charge against him to permit Charge No. 1 to be amended prior to trial as to form to
correct a technical irregularity regarding a charge previously pled, and not as a
substantive amendment of a new charge.
d.
Under similar circumstances, the Supreme Court permitted the
amendment of charges as to form in People v. Hertz, 586 P.2d 5 (Colo. 1978):
Liberal amendment is particularly appropriate here where a police officer in the
field, not an attorney, drafts the charges, relying on the language of the statute as
a basis for the allegations in the complaint.
The trial court should have allowed the appellant to amend the complaint by
striking the words or drugs. This amendment would not have charged any new,
different, or additional offense not alleged in the original complaint. Nor would it
have resulted in surprise or prejudice to the defendant.
Id. at 6 (Colo. 1978)(emphasis added).

(2)

Amendment by jury instruction.

11.
An analysis similar to the form v. substance determination under Cervantes
occurs when facts are presented during trial which vary from the charge in the complaint/
information, and are then presented to the jury through written instructions. The legal
determination to be made is whether the jury instruction is an improper substantive
(constructive) amendment to the complaint/information, or are merely simply variances
to the form of the charge which are permitted:
Case law recognizes two different types of variances, similar in kind and different
in degree. The first type of variance, referred to as a simple variance, occurs when
the charging terms are unchanged, but the evidence at trial proves facts materially
different from those alleged in the indictment. The second type of variance, known
as a constructive amendment of the indictment, is more dangerous than a simple
variance because it actually modifies an essential element of the offense
charged, thereby effectively alter[ing] the substance of the indictment.
United States v. Williamson, 53 F.3d 1500, 151213 (10th Cir. 1995)(citations omitted),
cited in People v. Rodriguez, 914 P.2d 230 (Colo. 1996) below.
In the absence of an actual amendment, instructions permitting the jury to convict
of an offense that is substantively different from any charged in the information
are said to nevertheless work a constructive amendment of the information. See
People v. Rodriguez, 914 P.2d 230, 257 (Colo. 1996) (describing constructive
amendment and distinguishing it from a simple variance). An information may
not be constructively amended by jury instruction any more than the court could
permit the information to be amended by the addition of a new or different charge
after the trial had begun. The prosecution simply cannot constitutionally require a
defendant to answer a charge not contained in the charging document.
Esquivel-Castillo v. People, 364 P.3d at 888 (citations omitted)(emphasis added).
a.
In People v. Rodriguez, 914 P.2d 230 (Colo. 1996), cited in EsquivelCastillo, the defendant was charged with Sexual Assault based on sexual intercourse
and fellatio. At trial, the jury instruction indicated that the charge of Sexual Assault was
based on sexual penetration which included, not only intercourse and fellatio, but also
cunnilingus, anilingus and anal intercourse (which were not included in the complaint/
information). Id. at 257-258.
b.
Following an analysis later adopted in Esquivel-Castillo, the Supreme
Court in Rodriguez held that the jury instruction changed only the technical form of the
charge, not its substance, and did not prejudice the defendant:

We hold that Instruction No. 25 did not impermissibly amend the charges in the
information. Count III of the information alleged the essential elements of firstdegree sexual assault with sufficient specificity to inform the accused of the
specific offence, coming under the general description, with which he is charged.
The information also specifically alleged the date of the assault, the perpetrator, the
victim, the location, and the accomplices. The specification of the particular manner
in which Rodriguez committed the element of sexual intrusion or sexual penetration
represents further evidentiary details which the information need not state.
.
.
.
Technical defects in an information do not require reversal unless the substantial
rights of the defendant are prejudiced. The defendant is entitled to reversal if he
was prejudiced, surprised, or hampered in his defense.
Id. at 258 (citations omitted)(emphasis added).
c.
Therefore, similar to the analysis under Cervantes, Esquivel-Castillo and
Rodriguez hold that, where a complaint/information is permitted to be amended without
prejudice to the defendant as to form at any time prior to verdict pursuant to Rule 7(e),
in the absence of a formal amendment by the prosecution, and where conforming
evidence is presented to the jury at trial, that amendment may be implied in a
conforming jury instruction.
12.
Based on the Courts holding above permitting amendment of the Complaint/
Information against the defendant to add the fact-specific allegation that the charge of
Harassment includes strikes, shoves, kicks, or otherwise touched a person, or subjected
her to physical contact under subsection (1)(a) of 18-9-111 ( 8-10 above), the Court
finds as follows under Esquivel-Castillo and Rodriguez:
a.
Evidence was presented at trial that the defendant shoved the victim
[Tr. at 192-193].
b.
Jury Instruction No. 10 accurately informed the jury that Harassment
required proof that the defendant struck, shoved, kicked, or otherwise touched a
person, or subjected her to physical contact [Tr. at 141], and was provided to the jury
without objection from the defendant.
c.
No formal amendment of Charge No. 1 Harassment was necessary prior
to verdict under Rule 7(e) because the amendment is implied as a simple variance as
to the form of the charge. Esquivel-Castillo, 364 P.3d at 888; Rodriguez, 914 P.2d at
257-258.

10

(3)

Amendment by the trial judge.

13.
With the Courts determination that an amendment of the Complaint/Information
against the defendant to add the fact-specific allegation that the charge of Harassment
includes strikes, shoves, kicks, or otherwise touched a person, or subjected her to
physical contact under subsection (1)(a) of 18-9-111 is permitted ( 8-10 above),
the remaining issue regarding an express amendment to the charge is whether the trial
judge has the authority to grant such an amendment sua sponte without any
participation or even ratification by the prosecution. 3
14.
Rule 7(e) expressly provides that the court may permit an information to be
amended as to form or substance at any time prior to trial.
a.
Defendant interprets the Courts ability to permit an amendment to the
Complaint/Information under Rule 7(e) as requiring the prosecution or the defendant to
move the trial court to amend, and the trial court then having the authority to permit or
grant the motion [Reply at 1-2]. The defendant cites no Colorado case law on point
regarding this interpretation, nor has the Court discovered any such case law.
b.
Defendant cites a line of cases on point from the state of Washington;
in particular, State v. Kenney, 595 P.2d 52 (Wash. App. 1979):
(1)
In Kenney, the trial court dismissed the primary charge of Theft in
the First Degree and sua sponte amended the charge to Theft in the Second Degree
(not a lesser-included offense id. at 225).
(2)
Operating under a criminal Rule virtually (although not literally)
identical to Colo.R.Crim.P. 7(e) permitting a trial court to amend the information, the
appellate court in Kenney held that (1) to permit implies that a motion is made, and
(2) the trial judge has no independent authority to amend without a motion from the
prosecution:
This authority to permit an amendment would seem to assume that a specific
motion to amend or a request to refile will be made by the prosecution. In the
orderly administration of the criminal justice system, the prosecution decides
what crimes shall be charged against a given defendant, and the court resolves
issues which arise as a result of those prosecutorial decisions.
Id. at 55.

The issue of express amendment to the Complaint/Information by the trial judge is addressed in the
alternative by this Court to the Courts ruling in 11-12 that Charge No. 1 Harassment was amended
by implication through the evidence presented at trial and Jury Instruction No. 10.

11

(3)
Interestingly, the Washington appellate court cites the 1st Circuit
Court of Appeals for this ruling, but the federal appellate court does not travel quite as
far as the Washington court would imply:
It is of course a primary trial court responsibility not only to pursue with dedication
the goal of judicial impartiality, but to at all times maintain the clear visage of such
impartiality as well. Though amendments to an information at the suggestion of
the trial judge are not directly proscribed by the applicable rule of criminal
procedure, Fed.R.Crim.P. 7(e), neither are they directly sanctioned. And while a
judge has an obligation to ensure the orderly operation of a criminal trial, we do
not encourage such amendments, which are in substance the responsibility of the
government. Yet despite our general disfavor with judicial amendments, we do not
believe it appropriate or sensible under these facts to reverse the judgment below
on this basis. At least, where, as in the instant case, the amendment was truly one
of mere technical form, and the defendants were neither prejudiced at trial, nor
impaired in their defense, we will not disturb what we believe to be a fairly
rendered jury verdict.
United States v. Blanchard, 495 F.2d 1329, 133233 (1st Cir. 1974)(citations and
footnote omitted)(emphasis added).
c.
The factual and procedural circumstances before this Court on appeal
appear to be identical to those before the 1st Circuit in Blanchard in that (1) the
amendment to Charge No. 1 Harassment was one of form, not substance, and (2) the
defendant had prior notice of the facts underlying the amendment and was not
prejudiced in his defense or at trial. This identity of circumstances would tend to
support the more lenient interpretation given to Rule 7(e) by the federal appellate court,
rather than the more doctrinaire interpretation of the Washington court.
d.
Further, an equally plausible interpretation of Rule 7(e) is that, when the
law permits an amendment of the charge as to form because (1) no new charge is
added, and (2) the defendant suffers no prejudice under Cervantes, the trial court is
permitted to amend the complaint/information, regardless of any motion by the parties.
15.
Although this Court also looks with disfavor on judicial amendments under Rule 7(e),
other circumstances affect how this Court must view the trial judges actions in this case:
a.
The charges against the defendant and the jury trial were conducted in the
County Court in Arapahoe County, Colorado, under the Simplified Procedures in
County Court, C.R.S. 16-2-101, et seq. C.R.S. 16-2-101 provides the following
Statement of Purpose of these alternate Rules of criminal procedure:

12

In order to provide a simple and expeditious method for the prosecution of

misdemeanors and petty offenses in county courts but one which also
guarantees to the defendant his constitutional rights, the general assembly does
hereby establish a simplified criminal procedure for misdemeanors and petty
offenses to be used under the circumstances set forth in this code in sections 162-102 to 16-2-114.
(Emphasis added).
b.
As every trial judge and criminal attorney knows, county court procedures
are designed to provide criminal defendants with the same constitutional and procedural
safeguards as in district court trials. Of course it would have been preferable if the
prosecutor had taken the initiative to amend when defense counsel moved for the
dismissal of Charge No. 1 Harassment, or at least chimed in at the conclusion of the
trial courts ruling to ratify the amendment of the Charge, but, as the record of the
proceedings support, the case was moving forward to trial simply and expeditiously
under the Simplified Rules.
d.
As the 1st Circuit held in Blanchard, this Court will not overturn the
decision of the trial court below where the amendment of Charge No. 1 Harassment
was based only on the form of the charge, and the defendant was provided with ample
notice of the additional allegations under subsection (1)(a) of 18-9-111, and was not
prejudiced in preparation for or during trial.
E.

Conclusion.

16.
Based on the analysis set forth above, the Court DENIES defendants appeal
and confirms the Judgment below.
By Order of the Court this 9th day of November, 2016.

__________________________
John L. Wheeler
District Court Judge
Cc:

All parties

13