Fisher v. People

Citation471 P.3d 1082
Decision Date14 September 2020
Docket NumberSupreme Court Case No. 19SC98
Parties Gregory Brad FISHER, Petitioner, v. The PEOPLE of the State of Colorado, Respondent.
CourtSupreme Court of Colorado

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

En Banc

JUSTICE BOATRIGHT delivered the Opinion of the Court.

¶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, 2018 WL 6241477 (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 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 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 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.

¶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), 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.

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 (Col...

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