July 17, 2019

Colorado Supreme Court: Respondent Neither Waived Nor Invited Error with Respect to Simple Variance Claim

The Colorado Supreme Court issued its opinion in People v. Smith on Monday, April 30, 2018.

Invited Error—Waiver—Simple Variance—Plain Error Review.

In this case, the supreme court reviewed two issues: (1) whether respondent waived or invited error with respect to his claim of a prejudicial simple variance when his defense counsel stated that the proposed jury instructions were generally acceptable, and (2) whether a jury instruction on menacing that does not identify the particular victim named in the charging document creates a simple variance warranting reversal when the jury could potentially have deemed either of two people to be the victim.

In light of the supreme court’s opinion in People v. Rediger, 2018 CO 32, ___ P.3d  ___, the court concluded that respondent neither waived nor invited error with respect to his simple variance claim. The court thus reviewed respondent’s variance claim for plain error and concluded that because the evidence presented at respondent’s trial would not obviously have allowed the jury to find that the respondent menaced a victim not named in his charging document, the trial court did not plainly err in instructing the jury on menacing without specifying the victim.

The court reversed the court of appeals division’s judgment.

Summary provided courtesy of Colorado Lawyer.