v. Carter, 2021 COA 29

Wayne Carter was charged with felony DUI (based on alleged three prior DUI/DWAI convictions), leaving the scene, and failure to present proof of insurance after a series of hit-and-run incidents and subsequent police contact; jury convicted him of felony DUI, leaving the scene, and operating without insurance.
The district court treated the three-prior-convictions requirement for felony DUI as a sentence-enhancing fact and found those priors by a preponderance of the evidence rather than submitting them to the jury beyond a reasonable doubt.
The information charged Carter with failure to present proof of insurance (§ 42-4-1409(3)(a)), but at the instruction conference the court instructed the jury on operating a motor vehicle without insurance (§ 42-4-1409(2)) and the verdict form mirrored the instructed offense.
Defense counsel did not object to the insurance instructions or verdict form and argued at trial that Carter had not been the driver (a defense that is complete for the instructed offense but not necessary to guilt on the charged offense).
On appeal the court: (1) reversed the felony DUI conviction in light of Linnebur (holding the priors are an element requiring jury proof beyond a reasonable doubt) and (2) held a constructive amendment occurred as to the insurance count but concluded Carter waived the objection or, alternatively, that any error was not plain; the mittimus must be corrected to reflect conviction for operating without insurance.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the three-prior-convictions requirement for felony DUI is an element that must be proven to a jury beyond a reasonable doubt	Priors are a sentencing/enhancer fact; court may find them by preponderance	Priors are an element of felony DUI and must be submitted to the jury and proved beyond a reasonable doubt	Reversed felony DUI conviction; Linnebur controls — priors are an element for the jury; court may resentence for misdemeanor or People may retry (double jeopardy issues to be decided if raised)
Whether the trial court constructively amended the insurance charge and, if so, whether reversal is required	People conceded a constructive amendment occurred but argued it isn’t structural error and is subject to plain-error review	Carter argued the constructive amendment was structural (per se reversible) so reversal is required despite no preservation	Court found a constructive amendment occurred; concluded Carter waived the objection (alternatively, error was not plain); constructive amendments are not structural errors and are subject to plain-error review; affirmed conviction for operating without insurance but ordered mittimus corrected

Stirone v. United States, 361 U.S. 212 (1960) (addressed prosecution proving acts different from indictment; historically cited for automatic reversal rule)
United States v. Cotton, 535 U.S. 625 (2002) (limited Stirone’s rationale and applied plain-error review to indictment defects)
Neder v. United States, 527 U.S. 1 (1999) (omission or misdescription of an element in jury instruction is not structural; subject to harmless-error analysis)
United States v. Olano, 507 U.S. 725 (1993) (articulated modern plain-error review principles)
Johnson v. United States, 520 U.S. 461 (1997) (discussed harmless-error standards and review)
Arizona v. Fulminante, 499 U.S. 279 (1991) (defined structural errors as those defying harmless-error analysis)
Sullivan v. Louisiana, 508 U.S. 275 (1993) (held certain fatal constitutional errors cannot be treated as harmless)
Griego v. People, 19 P.3d 1 (Colo. 2001) (Colorado follows Neder: omission/misdescription of an element is not structural)
Weinreich v. People, 119 P.3d 1073 (Colo. 2005) (Colorado Supreme Court reviewed a similar instructional/submission issue for plain error)
Medina v. People, 163 P.3d 1136 (Colo. 2007) (distinguished by majority; dealt with conviction for an uncharged offense and structural-error rationale)