Peo v. Carpenter

22CA1684 Peo v Carpenter 04-24-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 22CA1684
Lincoln County District Court No. 20CR117
Honorable H. Clay Hurst, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Ricky C. Carpenter,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division II
Opinion by JUDGE GOMEZ
Fox and Lum, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced April 24, 2025

Philip J. Weiser, Attorney General, Claire V. Collins, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Robin Rheiner, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 Defendant, Ricky C. Carpenter, appeals the judgment of

conviction entered on a jury verdict finding him guilty of first degree

assault. We affirm.

I. Background

¶2 At the time in question, Carpenter, an inmate at the Limon

Correctional Facility, worked as a member of the facility’s ground

maintenance crew under the supervision of Sergeant Michael Crow

(the victim). The crew was responsible for mowing grass, shoveling

snow, and other grounds upkeep.

¶3 One day, Carpenter and another inmate were working on an

irrigation issue caused by a leak in the sprinkler system. Carpenter

and the other inmate, equipped with shovels, wrenches, and pliers,

dug a hole three to four feet deep to access the leak.

¶4 As they worked, Carpenter informed the victim that he was

getting a new job as a porter and would no longer be on the

grounds crew. Carpenter asked who his replacement would be,

and, in response, the victim commented that it would be “somebody

[as] old and crusty and nasty as” Carpenter. According to the

victim, Carpenter, taking offense to the comment, climbed out of the

hole he was digging, made several angry remarks, and swung a

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shovel at the victim’s head. The victim said he deflected the shovel

with his hand, stepped back, and tried to deploy his pepper spray.

Next, the victim said, Carpenter picked up a pair of pliers and

appeared ready to throw them, so the victim sprayed him with

pepper spray. Carpenter then threw two sets of pliers toward the

victim, neither of which reached the victim.

¶5 Shortly afterward, other officers responded and helped restrain

Carpenter. The shovel was found in the hole. The victim reported

that after the incident, he received medical attention for severe

bruising and a bone chip to his hand.

¶6 The prosecution charged Carpenter with first degree assault

under section 18-3-202(1)(f), C.R.S. 2024. As relevant here, that

statute applies when someone, while lawfully confined as a result of

a criminal conviction, threatens a person employed at a detention

facility with a deadly weapon, with knowledge (or reason to know)

the person is in the performance of their duties and with intent to

cause that person serious bodily injury. Id. The prosecution also

brought other charges that were dismissed before trial.

¶7 At trial, in addition to hearing the victim’s testimony, the jury

heard testimony from another officer on duty in the area who

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witnessed part of the incident. That officer testified that she looked

over when she heard screaming, and she saw two pairs of pliers fly

toward the victim and saw the victim step back and spray his

pepper spray. But, in contrast to the victim’s testimony, she said

that the person who threw the pliers was still in the hole. She also

said that she didn’t see anyone swing a shovel. Carpenter didn’t

testify at trial.

¶8 After the close of evidence, the jury convicted Carpenter of first

degree assault.

II. Admission of Evidence Regarding the Pliers

¶9 Carpenter first contends that the trial court erred by admitting

evidence regarding the pliers because such evidence was irrelevant,

and any potential probative value of the evidence was substantially

outweighed by the danger of unfair prejudice. We disagree.

A. Applicable Law and Standard of Review

¶ 10 The Colorado Rules of Evidence favor the admissibility of

relevant evidence unless it is prohibited by the constitution, a

statute, or a rule. People v. Hood, 2024 COA 27, ¶ 19; CRE 402. In

criminal cases, evidence is relevant if, among other things, the

evidence makes it more or less probable that the charged criminal

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act occurred or that the defendant acted with the necessary

criminal intent. People v. Clark, 2015 COA 44, ¶ 17; see also CRE

401. However, even relevant evidence “may be excluded if its

probative value is substantially outweighed by the danger of unfair

prejudice, confusion of the issues, or misleading the jury, or by

considerations of undue delay, waste of time, or needless

presentation of cumulative evidence.” CRE 403.

¶ 11 We review a trial court’s evidentiary rulings for an abuse of

discretion. People v. Owens, 2024 CO 10, ¶ 105. A court abuses

its discretion when its ruling is manifestly arbitrary, unreasonable,

or unfair or is based on an incorrect understanding of the law. Id.

B. Discussion

¶ 12 On the first day of trial, defense counsel asked the court to

exclude all evidence regarding the pliers. Defense counsel argued

that, because the complaint and information identified only the

shovel as the deadly weapon to support the first degree assault

charge, any evidence about the pliers was irrelevant. And, counsel

continued, evidence about the pliers would be highly prejudicial

and “could confuse and mislead the jury as to which dangerous

instrument” was the deadly weapon at issue.

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¶ 13 The prosecutor countered that Carpenter’s throwing of the

pliers was “part of the criminal episode” and was relevant to his

state of mind, intent, and lack of mistake. The prosecutor also

argued that, while evidence of the pliers was prejudicial because it

was inculpatory, it wasn’t unfairly prejudicial, and it was unlikely to

confuse or mislead the jury. And, in response to questioning from

the court, the prosecutor confirmed that he didn’t plan to argue at

trial that the pliers were deadly weapons.

¶ 14 The trial court ruled that it would admit evidence of the pliers.

The court reasoned that such evidence was relevant and was not

unfairly prejudicial because it related to the same episode and “was

all part of the act” and because the prosecution wasn’t going to

argue that the pliers were deadly weapons.

¶ 15 We discern no abuse of discretion in the trial court’s decision

to admit evidence concerning the pliers. It was within the court’s

discretion to find such evidence relevant, given the allegation that

Carpenter threw the pliers at the victim just after swinging the

shovel at him. In particular, that evidence would make it more

probable than not that Carpenter purposefully and intentionally

threw the shovel at the victim, rather than, for instance,

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accidentally dropping the shovel or throwing it at something or

someone other than the victim. See Clark, ¶ 17; CRE 401.

¶ 16 Likewise, it was within the court’s discretion to conclude that

any risk of unfair prejudice or confusion of the issues didn’t

substantially outweigh the evidence’s probative value. See CRE

403. The evidence was highly relevant to Carpenter’s motive,

intent, and lack of mistake in swinging the shovel. It wasn’t

particularly prejudicial, as the pliers (which didn’t even reach the

victim) were far less dangerous than the shovel (which the victim

testified severely bruised and chipped a bone in his hand). See

People v. Brown, 2014 COA 130M, ¶¶ 22, 27 (considering, in

assessing a CRE 403 issue, the seriousness of the challenged

evidence as compared with the charged conduct). And, as the trial

court observed, it wasn’t likely to cause confusion so long as the

prosecution didn’t suggest that the pliers were deadly weapons —

and, as we discuss in the next section, the prosecution didn’t.

¶ 17 Accordingly, we decline to disturb the trial court’s ruling.

III. Constructive Amendment

¶ 18 Carpenter next contends that, by allowing the presentation of

the pliers evidence and denying his proposed jury instructions

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limiting the deadly weapon to the shovel, the trial court

impermissibly broadened the scope of what could be considered a

deadly weapon, thereby constructively amending the charged

offense. We are not persuaded.

A. Applicable Law and Standard of Review

¶ 19 A charging document must be definite enough to give a

defendant sufficient notice of the crime alleged so as to prepare a

defense, and it must recite the essential facts of the crime to protect

the defendant from further prosecution for the same offense. People

v. Pahl, 169 P.3d 169, 177 (Colo. App. 2006).

¶ 20 A variance occurs when the charge in the charging document

differs from the charge for which a defendant is convicted.

Campbell v. People, 2020 CO 49, ¶ 45. Colorado courts recognize

two types of variances: a constructive amendment and a simple

variance. People v. Rail, 2016 COA 24, ¶ 49, aff’d on other grounds,

2019 CO 99, and abrogated on other grounds by Bock v. People,

2024 CO 61.

¶ 21 A constructive amendment occurs when a jury instruction

changes an essential element of the charged offense, thereby

altering the substance of the charging document. Bock, ¶ 14; see

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also People v. Gallegos, 260 P.3d 15, 26 (Colo. App. 2010) (A

constructive amendment effectively “subjects a defendant to the

risk of conviction for an offense not originally charged.”).

¶ 22 In contrast, a simple variance occurs when the evidence

presented at trial proves facts that are materially different from

those alleged in the charging document. Campbell, ¶ 45. A simple

variance requires reversal of the judgment only if it prejudices the

defendant’s substantial rights. Rail, ¶ 51. Thus, we won’t disturb

the judgment for a simple variance “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.

¶ 23 We review de novo whether a constructive amendment or

simple variance occurred. People v. Martinez, 2024 COA 34, ¶ 24;

People v. Baker, 2019 COA 165, ¶ 27.

B. Additional Facts

¶ 24 The complaint and information alleged, in relevant part, that

Carpenter, “with intent to cause serious bodily injury to [the

victim] . . . unlawfully and feloniously threatened [the victim] with a

deadly weapon, namely: a shovel.” (Emphasis added.)

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¶ 25 As noted above, on the first day of trial, defense counsel asked

the court to exclude all evidence regarding the pliers. Part of

defense counsel’s argument was that “the complaint . . . identif[ied]

a shovel as the instrument in question” and didn’t mention the

pliers. Thus, defense counsel argued, admitting evidence of the

pliers would change or broaden the charge alleged in the complaint.

The court admitted the evidence but confirmed that the prosecution

wouldn’t be arguing that the pliers were deadly weapons.

¶ 26 Later, defense counsel proposed two jury instructions aimed at

specifying that the shovel was the deadly weapon in question. First,

defense counsel requested that the pattern elemental instruction for

first degree assault be modified to require a finding that Carpenter

“threatened [the victim] with a deadly weapon, namely, a shovel.”

Defense counsel also proposed the following language in a

supplemental instruction:

The Prosecution has alleged . . . that the
deadly weapon used in this case is a shovel.
As jurors, you must unanimously agree that
the deadly weapon used in this case, if any,
was a shovel. There is no other object that
may be considered as a deadly weapon in this
case.

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¶ 27 The court denied both proposed instructions. It reasoned that

the jury wasn’t likely to be confused as to what was the deadly

weapon at issue and that the proposed instructions would be more

prejudicial to Carpenter insofar as they essentially declared that the

shovel satisfied the standard to be deemed a deadly weapon. The

court accordingly provided the jury with the unaltered pattern

instruction for first degree assault, which required a finding that

Carpenter “threatened [the victim] with a deadly weapon.”

C. Discussion

1. Constructive Amendment

¶ 28 Carpenter primarily argues that the broadening of the scope of

what could be deemed a deadly weapon resulted in a constructive

amendment of the first degree assault charge. We disagree.

¶ 29 As an initial matter, we reject the People’s assertion that

Carpenter didn’t adequately preserve this argument in the trial

court. Defense counsel raised the “sum and substance” of the

argument, which was sufficient to preserve it for our review. People

v. Cooley, 2020 COA 101, ¶ 24 (quoting In re Estate of Ramstetter,

2016 COA 81, ¶ 68).

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¶ 30 As indicated above, under section 18-3-202(1)(f), a person

commits first degree assault if, while lawfully confined and with

intent to cause serious bodily injury, they “threaten[] with a deadly

weapon” a detention facility employee engaged in the performance

of their duties, knowing or with reason to know that the employee

was engaged in the performance of those duties. While the use of a

deadly weapon is an essential element of the offense, there is

nothing in the statute suggesting that the use of a particular type of

deadly weapon is an essential element.

¶ 31 The pattern elemental instruction for first degree

assault — which the jury was given — also requires only that a

defendant “threatened [the victim] with a deadly weapon.” COLJI-

Crim. 3-2:06 (2024).

¶ 32 Although the prosecution alleged in the complaint and

information that the type of deadly weapon used was a shovel, the

additional detail of the type of weapon used was not part of the

essential element. Thus, the trial court’s decision to use an

instruction without that detail didn’t constitute a change in an

essential element. See People v. Rodriguez, 914 P.2d 230, 272 n.44

(Colo. 1996) (an elemental instruction for first degree sexual assault

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that didn’t specify what deadly weapon the defendant used “did not

unconstitutionally expand upon the offense charged,”

notwithstanding that the charging document had specified that the

deadly weapon was a knife); see also id. at 258 (a definitional

instruction for first degree sexual assault that included a list of

actions that satisfy the sexual penetration element, only two of

which were alleged in the charging document, “did not

impermissibly amend the [charging document]” where the specific

acts alleged in the charging document were merely “further

evidentiary details which the [charging document] need not state”);

Pahl, 169 P.3d at 178 (a definitional instruction for securities fraud

that listed types of securities in addition to the one listed in the

charging document didn’t amount to a constructive amendment).

¶ 33 Because there was no change in an essential element of the

offense between the complaint and information and the jury

instructions, we reject Carpenter’s argument that the instructions

effectuated a constructive amendment. See Bock, ¶ 14. Similarly,

we reject Carpenter’s argument that the admission of the pliers

evidence effectuated a constructive amendment, because it didn’t

alter an essential element of the offense or subject Carpenter “to the

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risk of conviction for an offense not originally charged.” Gallegos,

260 P.3d at 26.

¶ 34 Carpenter relies largely on People v. Simmons, 973 P.2d 627

(Colo. App. 1998), to support his contrary argument. But in that

case, a division of this court concluded that there was no

constructive amendment of the charging document. Id. at 629.

Instead, the division’s reversal of the judgment was based on a

concern that the jury verdict may not have been unanimous — an

issue Carpenter doesn’t develop in this case. Id. at 630; see also

People v. Duran, 2025 COA 34, ¶ 14 n.3 (appellate courts don’t

address undeveloped arguments). At any rate, the issue in that

case concerned confusion over who was the victim of felony

menacing, not simply what instrument was used to commit the

crime. See Simmons, 973 P.2d at 629-30.

2. Simple Variance

¶ 35 To the extent that Carpenter also argues that the broadening

of the scope of what could be deemed a deadly weapon resulted in

an impermissible simple variance, we again disagree.

¶ 36 Consistent with the allegations in the complaint and

information, the evidence presented at trial indicated that

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Carpenter swung a shovel toward the victim’s head, injuring the

victim’s hand when he deflected it. Further evidence established

that the shovel was made of metal and wood, was roughly three feet

long, and weighed ten to fifteen pounds.

¶ 37 While the prosecution presented evidence that Carpenter also

threw two sets of pliers during the incident, the parties made clear

at trial that the conduct at issue was the swinging of the shovel,

that the shovel was the alleged deadly weapon, and that the actions

with the pliers were merely an indication of Carpenter’s intent. For

instance, in opening statements, after briefly describing the incident

and mentioning the shovel and the pliers, the prosecutor explained

that “the charge [wa]s about swinging a shovel, which can cause

serious bodily injury.” Then again, in closing argument, the

prosecutor told the jurors that they were being asked whether it

constitutes “intent . . . to cause serious bodily injury” “when you

swing” a “shovel [that is] three feet long, estimated ten to fifteen

pounds[, and] made of metal . . . at a person’s head.” He also

argued that “a shovel . . . could be a deadly weapon” and that “the

pliers . . . are a continuation of [Carpenter’s] acts . . . as part of

intent.” Likewise, defense counsel explained in closing argument,

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Now, we talked about a couple tools here. And
based on the statements of [the victim], he was
concerned about a shovel. There’s also
mention about these pliers that happened
after, but he’s not concerned with those.
Those are not the basis of his concern as he
testified to. We’re talking about allegations of
a shovel being swung. That is the alleged
threat to have occurred, to have occurred to
have hit him.

Thus, it is not reasonably likely that the jurors could’ve been

confused about what instrument was the deadly weapon.

¶ 38 We reject Carpenter’s suggestion that the jury was likely

confused or misled by the prosecutor’s statement in closing

argument that a deadly weapon “does not need to actually make

contact” to establish the elements of the offense. The prosecutor

made no reference to the pliers in conjunction with that statement,

and he went on to explain that no actual serious bodily injury was

required — only the intent to cause it. These statements can fairly

be interpreted as telling the jurors they could convict Carpenter

even if they disagreed about where the shovel was swung, whether

it struck the victim, and whether it caused an injury. Indeed,

defense counsel contested those very facts in his closing argument,

and there were discrepancies in the evidence as to whether

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Carpenter was outside the hole or inside the hole at the time (as the

victim said Carpenter swung the shovel after climbing out of the

hole, yet the shovel was later found inside the hole and the other

officer reported seeing Carpenter inside the hole).

¶ 39 Accordingly, we conclude that the evidence presented at trial

did not prove facts materially different from those alleged in the

complaint and information and, therefore, that no simple variance

occurred. See Campbell, ¶ 45.

¶ 40 Yet even if there was a simple variance, it isn’t grounds for

reversal, as Carpenter “does not complain he was unaware of the

essential facts in support of the [first degree assault charge],” “does

not argue he would have challenged the prosecution’s case

differently,” and does not “indicate he could have produced different

evidence in his defense.” Pahl, 169 P.3d at 178; see also Rail, ¶ 51;

Campbell, ¶ 45. Indeed, the complaint and information and the

16
evidence at trial “concerned the same incident of assault, the same

defendant, [and the same] victim.” Rodriguez, 914 P.2d at 258.1

IV. Prosecutorial Misconduct

¶ 41 Lastly, Carpenter contends that the prosecutor committed

reversible misconduct by commenting in his rebuttal closing

argument on Carpenter’s decision not to testify at trial and by

shifting the burden of proof to the defense. Carpenter concedes this

issue is unpreserved, and we conclude that any error in allowing

the prosecution’s comments doesn’t rise to the level of plain error.

A. Applicable Law and Standard of Review

¶ 42 We use a two-step analysis when reviewing a claim of

prosecutorial misconduct. People v. Trujillo, 2018 COA 12, ¶ 36.

First, we determine whether the prosecutor’s conduct was improper

under the totality of the circumstances. Id. And second, we

1 To the extent that Carpenter also argues that the court abused its

discretion by denying his proposed jury instructions, we disagree
for similar reasons and because the elemental instruction correctly
stated the law. See People v. Trujillo, 2018 COA 12, ¶ 11 (“[W]e
review a trial court’s decision concerning a proposed jury
instruction for an abuse of discretion and will not disturb the ruling
unless it is manifestly arbitrary, unreasonable, or unfair.”).

17
determine whether any prosecutorial misconduct warrants reversal

under the applicable standard of review. Id.

¶ 43 A prosecutor is allowed considerable latitude in responding to

arguments made by opposing counsel. People v. Ramirez, 997 P.2d

1200, 1211 (Colo. App. 1999), aff’d on other grounds, 43 P.3d 611

(Colo. 2001).

¶ 44 However, a prosecutor should not refer to a defendant’s

exercise of the constitutional right to remain silent or suggest that

the defendant’s silence creates an inference of guilt. Trujillo, ¶¶ 38,

43. “The test for whether a prosecutor’s argument constitutes a

comment on the defendant’s failure to testify is whether the

comment directs the jury’s attention to the defendant’s silence as a

means of implying guilt.” People v. Gibson, 203 P.3d 571, 577

(Colo. App. 2008).

¶ 45 A prosecutor also may not attempt to shift the burden of proof

to the defendant. People v. Marko, 2015 COA 139, ¶ 225, aff’d on

other grounds, 2018 CO 97. A prosecutor may, however, comment

on the lack of evidence supporting a defense theory. People v.

Walker, 2022 COA 15, ¶ 41. We assess whether a prosecutor’s

comments improperly shifted the burden of proof by considering

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(1) whether the prosecutor specifically argued or intended to

establish that the defendant carried the burden of proof;

(2) whether the prosecutor’s actions constituted a fair response to

defense counsel’s questioning and comments; and (3) whether the

jury was informed by counsel and the court about the defendant’s

presumption of innocence and the prosecution’s burden of proof.

People v. Duncan, 2023 COA 122, ¶ 32.

¶ 46 Where, as here, the defense doesn’t object to the alleged

misconduct, we review for plain error. People v. Rhea, 2014 COA

60, ¶ 43. Plain error is an error that is obvious and substantial.

Hagos v. People, 2012 CO 63, ¶ 14. An error is obvious if it

contravened a clear statutory command, a well-settled legal

principle, or Colorado case law. People v. Thompson, 2018 COA 83,

¶ 34, aff’d, 2020 CO 72. An error is substantial if it “so

undermined the fundamental fairness of the trial itself so as to cast

serious doubt on the reliability of the judgment of conviction.”

Hagos, ¶ 14 (quoting People v. Miller, 113 P.3d 743, 750 (Colo.

2005)). “Only prosecutorial misconduct which is ‘flagrantly,

glaringly, or tremendously improper’ warrants reversal.” Domingo-

Gomez v. People, 125 P.3d 1043, 1053 (Colo. 2005) (quoting People

19
v. Avila, 944 P.2d 673, 676 (Colo. App. 1997)). “Prosecutorial

misconduct in closing argument is rarely so egregious as to

constitute plain error.” People v. Villa, 240 P.3d 343, 356 (Colo.

App. 2009).

B. Discussion

¶ 47 In his rebuttal closing argument, the prosecutor stated,

The burden of the People, myself as the
prosecutor on behalf of the People, is to prove
the elements of the charges beyond a
reasonable doubt. Not disprove a theory, not
disprove the potential capabilities of a person
who nobody’s heard from, and who doesn’t
have to say a word. He doesn’t have to say
anything. You don’t have to consider it at all.

Here’s the thing: You have to imagine his
capabilities. You have to speculate about his
capabilities to buy this argument wholesale.
You have to decide if [the victim] misled
everyone all the way up to getting on this
stand, or you have to decide what the evidence
told you.

(Emphases added.)

¶ 48 It’s unclear what the prosecutor meant by his reference to no

one having heard from Carpenter, and whether he was attempting

to suggest that it signified Carpenter’s guilt. In the portion of his

rebuttal immediately preceding the challenged comments, the

20
prosecutor referred to defense counsel’s statement in closing

argument that if Carpenter had actually intended to cause serious

bodily injury, he would’ve swung the shovel harder and multiple

times. But that portion of the rebuttal also referred to several other

things, including the lack of any need to establish an injury. In any

event, the prosecutor should not have referred to Carpenter’s

silence, and we disagree with the People’s assertion that the

reference was a fair response to defense counsel’s closing argument.

See Duncan, ¶ 32.

¶ 49 Nonetheless, we conclude that any error in allowing the

comments was not so obvious or substantial as to amount to plain

error. As we’ve indicated, the reference to Carpenter’s silence was

vague and unclear and didn’t directly suggest that it signified guilt.

See Gibson, 203 P.3d at 577. Likewise, it’s not clear that the

prosecutor was trying to shift the burden of proof to Carpenter, as

opposed to commenting on the lack of evidence to support

Carpenter’s theory of the case. See Marko, ¶ 225; Walker, ¶ 41.

The prosecutor also bookended his very brief comments with

reminders to the jury that the prosecution bore the burden of proof

and that Carpenter had the right not to testify. The court, too,

21
instructed the jury on the prosecution’s burden of proof,

Carpenter’s constitutional right not to testify, and the fact that the

jury could not use his decision not to testify as an inference of guilt.

See Duncan, ¶ 32.

¶ 50 Accordingly, we discern no plain error. See Domingo-Gomez,

125 P.3d at 1053; Villa, 240 P.3d at 356; see also People v. Cuellar,

2023 COA 20, ¶¶ 51-54 (similar comments didn’t amount to plain

error); People v. Cevallos-Acosta, 140 P.3d 116, 124 (Colo. App.

2005) (same).

V. Disposition

¶ 51 The judgment is affirmed.

JUDGE FOX and JUDGE LUM concur.

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