Peo v. Heath

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.)

1. Applicable Law and Standard of Review

¶ 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

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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

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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,

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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

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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

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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

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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.

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