People v. Carter, Court of Appeals No. 17CA2331

• Docket Nº: Court of Appeals No. 17CA2331
• Citation: 486 P.3d 473
• Case Date: March 11, 2021
• Court: Court of Appeals of Colorado

486 P.3d 473

The PEOPLE of the State of Colorado, Plaintiff-Appellee,
v.
Wayne Henderson CARTER, Defendant-Appellant.

Court of Appeals No. 17CA2331

Colorado Court of Appeals, Division V.

Announced March 11, 2021

Philip J. Weiser, Attorney General, Brian M. Lanni, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Rachel K. Mercer, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant

Opinion by JUDGE J. JONES

¶ 1 Defendant, Wayne Henderson Carter, appeals his convictions for felony driving under the influence (felony DUI) and failure to present proof of insurance. We conclude that the district court erred by (1) treating the requirement of three prior convictions for felony DUI as a sentence enhancer rather than an element of the offense and (2) constructively amending the failure to present proof of insurance charge by instructing the jury on operating a motor vehicle without insurance.

¶ 2 Linnebur v. People , 2020 CO 79M, 476 P.3d 734, recently decided by the supreme court, requires that we reverse Carter's conviction for felony DUI. On remand, the court may enter a conviction for misdemeanor DUI. If the People elect instead to retry Carter for felony DUI, and Carter raises a double jeopardy defense, the court should rule on the applicability of that defense to the facts of this case.

¶ 3 But as to the constructive amendment of the failure to present proof of insurance charge, we hold that Carter waived his contention on appeal or, alternatively, that the

486 P.3d 476

error wasn't plain. In reaching the alternative holding that any error wasn't plain, we decline to follow decisions by other divisions of this court treating constructive amendments as "per se reversible." We do so because (1) the Colorado Supreme Court has held that, outside the limited category of constitutional errors considered "structural," there is no constitutional error that is automatically reversible and (2) a constructive amendment isn't structural error. Nonetheless, the mittimus should reflect a conviction for operating a motor vehicle without insurance — the charge on which the jury was instructed — not failure to present proof of insurance.

¶ 4 We therefore reverse the conviction for felony DUI, affirm the conviction for operating a motor vehicle without insurance, and remand for correction of the mittimus and further proceedings consistent with this opinion.

I. Background

¶ 5 The prosecution alleged that Carter drove drunk and got in a series of hit and run accidents in the space of several hours. When police eventually contacted Carter later that day, he was at a friend's house; his was car parked outside. He declined both a blood and breath test and didn't provide insurance information for the vehicle when a police officer asked him for it.

¶ 6 The People charged Carter with felony DUI, leaving the scene of an accident, and failure to present proof of insurance.¹ A jury found Carter guilty of the first two offenses and of operating a motor vehicle without insurance. On appeal, he challenges only the felony DUI and insurance coverage convictions.

II. Felony DUI

¶ 7 DUI is ordinarily a misdemeanor, but it becomes felony DUI if it occurs after three or more prior convictions for DUI, DUI per se, or driving while ability impaired (DWAI). § 42-4-1301(1)(a), C.R.S. 2020. Consequently, to prove felony DUI, the prosecution must prove that the defendant has three or more prior DUI, DUI per se, or DWAI convictions.

¶ 8 Carter filed a motion requesting that the prosecution be required to prove the three prior convictions to a jury beyond a reasonable doubt. The district court ruled that the requirement of three prior convictions for felony DUI is a sentence enhancer, not an element of the offense, and therefore allowed the prosecution to prove the prior convictions to the court by a preponderance of the evidence. (After the jury verdicts, the court found that Carter had three prior qualifying offenses.)

¶ 9 Carter argues on appeal, as he did below, that the requirement of three prior convictions is an element of felony DUI, and that the district court therefore violated his constitutional right to have a jury decide that element beyond a reasonable doubt.

¶ 10 After the briefing in this case, the supreme court addressed this issue in Linnebur . The court held that the requirement of three prior convictions is an element of felony DUI that must be proved to a jury beyond a reasonable doubt. Linnebur , ¶ 31. Based on Linnebur , we must conclude that the district court erred. We therefore reverse Carter's felony DUI conviction. On remand, the court may sentence Carter for misdemeanor DUI. If the prosecution instead seeks to retry Carter on the felony DUI charge, and Carter raises a double jeopardy defense, the court must rule on that defense. Id. at ¶ 32.

III. Operating a Motor Vehicle Without Insurance

¶ 11 Carter also contends that the district court constructively amended the failure to present proof of insurance charge in the complaint and information by instructing the jury on the elements of a different and uncharged offense — operating a motor vehicle without insurance.

486 P.3d 477

A. Preservation and Standard of Review

¶ 12 Carter and the People agree that this issue was unpreserved. Both note that Carter's counsel failed to object to the court's instruction to the jury setting forth the elements of operating a motor vehicle without insurance rather than failure to present proof of insurance, or to the court's verdict form for operating a motor vehicle without insurance. Carter says this doesn't matter because the court constructively amended the charge, which is a "structural" error requiring reversal in all circumstances. The People respond that while there was a constructive amendment of that charge, an error of this type isn't structural, and we should review for plain error.²

¶ 13 We have an independent, affirmative obligation to determine whether a claim of error was preserved and to determine the appropriate standard of review under the law, notwithstanding the parties’ respective positions or concessions pertaining to those issues. In re Marriage of Hogsett , 2018 COA 176, ¶ 32 n.3, 480 P.3d 696 (an appellate court isn't bound by a party's concession regarding preservation), aff'd sub nom. Hogsett v. Neale , 2021 CO 1, 478 P.3d 713 ; People v. Carter , 2015 COA 36, ¶ 65 n.1, 414 P.3d 15 (J. Jones, J., specially concurring) (same); People v. Corral , 174 P.3d 837, 839 (Colo. App. 2007) (an appellate court isn't bound by the parties’ agreement as to the appropriate remedy for an error); see also Commonwealth v. Aviles , 77 Mass.App.Ct. 389, 931 N.E.2d 500, 504 n.3 (2010) ; State v. Laune , 303 Or.App. 541, 464 P.3d 459, 463 (2020) (the appellate court is obligated to make its own preservation inquiry, notwithstanding any concession by the state).

¶ 14 We conclude that Carter didn't merely forfeit any claim of error, he waived it, meaning it isn't reviewable. But, in the alternative, we hold that even if Carter didn't waive the claim of error, it is subject to review for plain error because a constructive amendment isn't a structural error. And we further conclude that while there was a constructive amendment, the error wasn't plain.

1. Waiver

¶ 15 The People charged Carter with failing to present proof of insurance under section 42-4-1409(3)(a), C.R.S. 2020. The elements of that offense are that (1) after an accident or request to present evidence of a complying policy or certificate of self-insurance in full force and effect as required by law following any lawful traffic contact or during any traffic investigation by a peace officer; (2) an owner or operator of a motor vehicle; (3) fails to present such evidence. At trial, the prosecution introduced police officer body-camera video showing an investigating officer asking Carter for proof of insurance and Carter failing to present any.

¶ 16 At the jury instruction conference before testimony from the last witness, the court asked counsel how they wanted to handle the instructions, which they had reviewed.³ Carter's attorney responded, "We have very few that are not stipulated to . So I think we can just talk about those, and then the rest of them there's not an objection from the defense side and there's no objection from the DA." (Emphasis added.) The court and counsel then discussed the few proposed instructions as to which defense counsel had concerns or objections. Those instructions didn't include the elemental instruction for the insurance charge or the related instruction concerning proof of that charge, even though the elemental instruction for the insurance charge didn't recite the elements for failure to present proof of insurance but instead recited the elements for operating a motor vehicle without insurance under section 42-4-1409(2). That instruction read as follows:

The elements of the crime of operation without insurance are:

1. That Mr. Carter,

2. in the State of Colorado, at or about the date and place charged,

3. operated a motor vehicle,

486 P.3d 478

4. on a public highway of this state,

5. without a complying policy

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