v. People, 2020 CO 49

Police found an opened soda can at a residential burglary; DNA from the can matched Brandon Campbell in CODIS.
A partially eaten plum from a different burglary had been tested at an out‑of‑state (Virginia) lab and produced a DNA profile; the Virginia analyst did not testify at Campbell’s trial.
A Denver Crime Lab analyst compared Campbell’s sample to the soda‑can and plum profiles and testified that all three profiles matched; Campbell had requested live testimony from lab personnel but did not specifically request the Virginia analyst and objected only under CRE 404(b), not the Confrontation Clause.
Jury convicted Campbell of second‑degree burglary and first‑degree criminal trespass; a separate theft conviction was vacated on appeal and remanded for resentencing.
In a habitual‑offender count the information identified a prior conviction by case number, jurisdiction, and date but mislabeled the underlying offense (drug possession listed; actual conviction was felony trespass); the prosecution admitted the pen‑pack for that case number (provided in discovery) and proved the conviction for that case number at the habitual hearing.
Colorado Supreme Court granted certiorari and held: any Confrontation Clause error from the surrogate DNA testimony was not plain; the mislabeled prior‑offense resulted in a simple variance (not a constructive amendment) because the specific prior conviction identified by case number was proved.

Issue	Campbell's Argument	People’s Argument	Held
Whether allowing a Denver Crime Lab expert to testify about a DNA profile developed by a non‑testifying out‑of‑state analyst violated the Confrontation Clause	Admission of the plum profile via surrogate testimony was testimonial hearsay and violated Crawford/Melendez‑Diaz; Campbell preserved the issue by his request for live testimony	Williams and related authority left room for admitting expert testimony about another lab’s profile; any error was not plain because Williams produced no clear, controlling rule	Any Confrontation Clause error was not plain at trial or on appeal; no reversal required
Whether mislabeling the prior felony in the habitual‑offender information (listing drug possession but proving trespass) constituted a constructive amendment	Prosecution failed to prove the specific felony charged; proving a different felony changed an essential element and requires reversal	The information identified a specific prior conviction by case number, jurisdiction, and date; the prosecution proved that conviction — the variance was simple and non‑prejudicial	Although statute requires alleging and proving a specific prior conviction, proving the conviction by the identified case number satisfied the allegation; variance was simple, not a constructive amendment

Crawford v. Washington, 541 U.S. 36 (Confrontation Clause bars admission of testimonial statements of non‑testifying witnesses absent prior cross‑examination)
Davis v. Washington, 547 U.S. 813 (announcing primary‑purpose test for whether statements are testimonial)
Melendez‑Diaz v. Massachusetts, 557 U.S. 305 (forensic reports are testimonial and require live testimony of analysts)
Bullcoming v. New Mexico, 564 U.S. 647 (surrogate testimony that does not permit cross‑examination of the actual analyst violates the Confrontation Clause)
Williams v. Illinois, 567 U.S. 50 (fractured Supreme Court decision allowing expert to testify about an outside lab’s profile; produced no single controlling rationale)
People v. Rodriguez, 914 P.2d 230 (distinguishing simple variances from constructive amendments)
Casadas v. People, 304 P.2d 626 (charging instrument fixes the substantive charge; substitution of a different statutory charge after trial is improper)
People v. Merritt, 411 P.3d 102 (Colo. App.) (autopsy report testimonial; courts may engage in fact‑specific primary‑purpose analysis)