DISTRICT COURT

ARAPAHOE COUNTY, COLORADO

Arapahoe County Justice Center
7325 S. Potomac St.
Centennial, CO 80112
Appeal from the County Court of Arapahoe
County
Hon. Judge Darren Vahle
Case No. 15M1994

THE PEOPLE OF THE STATE OF

COLORADO,
Plaintiff-Appellee,

COURT USE ONLY

Case Number: 16CV31100

v.
JOHN BOWLEN,
Defendant-Appelant.
Prosecuting Attorney(s), 18th Judicial District:
SUSAN J. TROUT, Senior Deputy, for
GEORGE H. BRAUCHLER, District Attorney
6450 S. Revere Parkway
Div.: 21
Centennial, Colorado 80111
Phone: (720) 874-8500
Fax:
(720) 874-8501
Atty. Reg. #(s): Brauchler 25910, Trout 8504
ANSWER BRIEF

TABLE OF CONTENTS
Table of Authorities ................................................................................................. iii
Statement of the Issue ................................................................................................1
Statement of the Facts ................................................................................................1
Statement of the Case.................................................................................................2
Standard of Review ....................................................................................................4
Summary of the Argument.........................................................................................5
Argument ...................................................................................................................5
I. The County Court did not lack jurisdiction; the amended harassment charge
states an offense, as does the telecommunication charge. ......................................5
A. The Rule and Statute. .......................................................................................5
B. There is no jurisidictional issue; the amended complaint was sufficient. ........6
C. The court did not abuse its discretion in permitting the amendment; Bowlen
sustained no prejudice. ............................................................................................8
D. The amendment was one of form, not substance............................................15
Conclusion ...............................................................................................................19

ii

TABLE OF AUTHORITIES
Cases
Bustamante v. District Court, 329 P.2d 1013 (Colo. 1958) ......................................7
Cervantes v. People, 715 P.2d 783 (Colo. 1986)............................................. passim
Maraggos v. People, 486 P.2d 1 (Colo. 1971) ..........................................................7
People v. Albo, 575 P.2d 427 (Colo. 1978) ...............................................................6
People v. Al-Yousif, 206 P.3d 824 (Colo. App. 2006) .........................................4, 11
People v. Bowen, 658 P.2d 269 (Colo. 1983) ........................................................6, 7
People v. Butler, 224 P.3d 380 (Colo. App. 2009) ..............................................4, 18
People v. Cervantes, 677 P.2d 403 (Colo. App. 1983) ............................................14
People v. Hertz, 586 P.2d 5 (Colo. 1978) ............................................................9, 15
People v. Ingersoll, 506 P.2d 364, (Colo. 1973) ....................................................18
People v. Johnson, 644 P.2d 34 (Colo. App. 1980).................................................10
People v. King, 581 P.2d 739 (Colo. App. 1978) ....................................................11
People v. Metcalf, 926 P.2d 133 (Colo. App. 1996) ................................... 10, 16, 17
People v. Thomas, 832 P.2d 990 (Colo. App. 1991) ....................................... passim
People v. Walker, 321 P.3d 528 (Colo. App. 2011) ............................... 9, 10, 11, 16
People v. Williams, 984 P.2d 56 (Colo. 1999).......................................... 5, 8, 10, 18
People v. Wilson, 114 P.3d 19 (Colo. App. 2004) .................................................5, 8
People v. Wright, 678 P.2d 1072 (Colo. App. 1984) ...............................................10
Statutes
C.R.S. 16-2-106 ................................................................................................5, 14
C.R.S. 18-9-111(1)(a) ................................................................................ 8, 13, 18
Rules
Crim. P. 4.1(c)(4) .................................................................................................5, 13
Crim. P. 7(e) ................................................................................................ 4, 5, 9, 10

iii

STATEMENT OF THE ISSUE

This case does not present a jurisdictional question. The issue is whether,
prior to trial, the trial court abused its discretion in permitting amendment of Count
Two of the complaint.
STATEMENT OF THE FACTS
On April 14, 2016, a jury found the defendant John Bowlen (Bowlen) guilty
of harassment. (Tr. 4/14/16 p. 54 lines 6-9.) He was sentenced to 24 months of
probation. (Tr. 4/14/16 p. 54 lines 6-9; Tr. 4/14/16 p. 62 lines 13-19.) Bowlen
appeals.
On June 3, 2015 at approximately 10:00 pm, Officers Montour and Gillis
responded on a 911 call to an apartment at 4550 Cherry Creek Drive, Glendale
Colorado. (Tr. 4/13/16 p. 254 lines 18-21; p. 255 lines 1-18.) Through the
apartment door, Officer Gillis could hear a male yelling and a female crying. (Tr.
4/13/16 p. 256 lines 1-3.) The Officers knocked and were greeted by Bowlen, who
let them in. (Tr. 4/13/16 p. 256 lines 13-15.) Once inside the apartment, the
Officers could hear a female crying inside the bathroom. (Tr. 4/13/16 p. 258 lines
1-5.)
Officer Gillis contacted the victim Jessica Best and the two went to the
hallway outside the apartment. (Tr. 4/13/16 p. 259 lines 2-13.) Ms. Best stated in
substance that she and Bowlen were having an argument. (Tr. 4/13/16 p. 185 lines
1

25; p. 186 lines 1-3.) He became upset and started yelling. Id. When Bowlen
started talking about killing somebody, Ms. Best became uncomfortable and told
Bowlen she was going to call for help. Id.
Ms. Best was scared of Bowlen so she retreated to the bathroom with her
cellphone to call 911. (Tr. 4/13/16 p. 189 lines 7-14; p. 190 lines 1-5.) Before she
could make the call, Bowlen followed her into the bathroom, grabbed her arms,
pushed her against the wall, and took her cell phone. (Tr. 4/13/16 p. 192 lines 1520.)
After Bowlen left the bathroom, Best ran to the bedroom, grabbed the
landline telephone and dialed 911. (Tr. p. 194 lines 11-14.) She managed to give
911 the address before Bowlen ran into the room scaring her so that she screamed
and threw the phone on the bed. (Tr. 4/13/16 p. 195 lines 17-22.) Bowlen picked
up the phone and disconnected the line. Id. Ms. Best was frightened so she fled to
the bathroom, locked the doors and remained there until police arrived. (Tr.
4/13/16 p. 198 lines 1-16.)
STATEMENT OF THE CASE
In the original summons and complaint, Officer Montour cited Bowlen for:
1. Count One: 18-9-111 Harassment, An Act of Domestic Violence 18-6800.3 and 18-6-801.6 and

2. Count Two: 18-9-309(2)(a) Telecommunication Crime, An Act of

Domestic Violence 18-6-800.3 and 18-6-801.6.
(R. at 20.)
On the morning of trial, the People moved to amend Count Two,
telecommunication crime, C.R.S. 18-9-309(2)(a). (Tr. 4/13/16 p. 5 lines 7-9.)
The People tried to amend Count Two to charge obstruction of telephone service
under C.R.S. 18-9-306.5. (Tr. 4/13/16 p. 5 lines 13-18.) The defense argued at
great length concerning the alleged prejudicial impact of the proposed amendment.
(Tr. 4/13/16 p. 7 line 25: pp. 8-11; p. 12 lines 1-20.) Although the defense claimed
prejudice, it did not, and does not now, contend that Count Two was defective for
failure to state an offense. (Opening Brief pp. 4-8.)
The court thoroughly analyzed the Peoples motion to amend the
telecommunication count. (Tr. 4/13/16 p. 12 lines 23-25; pp. 13-14; p. 15 lines 121.) The court denied the Peoples motion to amend, concluding that it would be
prejudicial to the defense to grant that motion at this late stage. (Tr. 4/13/16 p. 15
lines 19-21.)
In the alternative, the People moved for a continuance, which would have
cured any prejudice accruing to Bowlen by reason of the proposed amendment.
(Tr. 4/13/16 p. 16 lines 8-20.) There were two months remaining in the speedy
trial period. (Tr. 4/13/16 p. 6 lines 22-24; p. 19 lines 11-12.) Bowlens counsel
3

emphatically objected to any trial continuance. (Tr. 4/13/16 p. 18 lines 16-17.)

The court denied the Peoples motion to continue. (Tr. 4/13/16 p. 19 lines 2-5.)
Before prospective jurors entered the courtroom, Bowlen moved to dismiss
Count One, the harassment charge, because the statutory citation did not also
include the statutory subsection. (Tr. 4/13/16 p. 24 lines 9-14.) The court noted
that the register of actions identified Count One as harassment under 18-9-111(1)
(a), strike/shove/kick as did the affidavit for warrantless arrest. (Tr. 4/13/16 p. 24
lines 18-24.) The court denied Bowlens motion to dismiss ruling:
All right. The Court believes the Defense is clearly on
notice given the documents in the case, given discovery
in the case, and so the Court will construe this as an
amendment as to form, not as to substance for what its
worth. So it 18-9-111(1)(a), harassment by striking,
shoving, kicking, or otherwise causing physical contact.
(Tr. p. 25 lines 6-12.)
STANDARD OF REVIEW
A trial court has discretion to permit the prosecution to amend a charging
document and an appellate court will not disturb its decision absent an abuse of
discretion. Crim. P. 7(e); People v. Butler, 224 P.3d 380, 385 (Colo. App. 2009);
People v. Al-Yousif, 206 P.3d 824, 830 (Colo. App. 2006). Colorado follows the
modern trend of testing the sufficiency of a charging document based on the
fundamental objectives the charging document serves rather than technical
4

pleading requirements of the common law. People v. Williams, 984 P.2d 56, 60
(Colo. 1999); People v. Wilson, 114 P.3d 19, 25 (Colo. App. 2004).
SUMMARY OF THE ARGUMENT
The county court did not abuse its discretion in permitting amendment on
the day of trial. Crim. P. 7(e). The amended count complied with simplified
county court procedures and sufficiently identified the essential elements of the
crime. The county court had jurisdiction over the defendant.
ARGUMENT
I.

The County Court did not lack jurisdiction; the amended harassment
charge states an offense, as does the telecommunication charge.
A. The Rule and Statute.

A misdemeanor prosecution is initiated by filing a summons and complaint

under Crim. P. 4.1(c)(4):
(4) Content of Summons and Complaint. A summons and
complaint issued by a peace officer shall contain the
name of the defendant, shall identify the offense charged,
including a citation of the statute alleged to have been
violated, shall contain a brief statement or description of
the offense charged, including the date and approximate
location thereof, and shall direct the defendant to appear
before a specified county court at a stated time and place.
Crim. P. 4.1(c)(4). The requirements established by the legislature are
also simplified and identical. See C.R.S. 16-2-106 of the
Simplified Procedures in the County Court.
5

B. There is no jurisidictional issue; the amended complaint was

sufficient.
Instead of addressing the amended summons and complaint that applied to
Bowlens prosecution, the defense focuses solely on the original charge and claims
the lower court lacked jurisdiction. (Opening Brief pp. 4-8.) This is a mistake.
The issue is whether the lower court abused its discretion in permitting the
amendment of the charge.
The next question is whether the amended charge was sufficient to confer
jurisdiction on the court. An information is sufficient if it advises the defendant of
the charges so that he can adequately defend himself and be protected from further
prosecution for the same offense. Cervantes v. People, 715 P.2d 783, 785 (Colo.
1986); People v. Albo, 575 P.2d 427, 429 (Colo. 1978). The amended harassment
charge was clearly sufficient. See Argument I-C.
Even if it is assumed that the original unamended charge raised a question of
jurisdiction, this fact does not prevent the county court from entertaining and
granting an amendment under Crim. P. 7(e). People v. Bowen, 658 P.2d 269
(Colo. 1983) (prosecutor moved to amend a theft by receiving charge because one
of the dates alleged was outside the statute of limitations). The Bowen trial court
mistakenly denied the motion to amend because the statute of limitations is
jurisdictional and the court erroneously believed it was therefore powerless to
6

permit amendment of the charge. Bowen, 658 P.2d at 270. The Supreme Court
reversed and emphasized that, while the trial court had no jurisdiction to try the
defendant under an indictment that contains no specific offense committed within
the statute of limitations, the court nonetheless retained jurisdiction to entertain a
motion to amend the charging document under Rule 7(e). Bowen, 658 P.2d at 270,
clarifying Bustamante v. District Court, 329 P.2d 1013 (Colo. 1958).
Similarly, in Maraggos v. People, 486 P.2d 1, 3 (Colo. 1971), the defendant
argued the trial court lacked jurisdiction because the original information was
defective for failure to allege the specific intent element of a burglary charge. The
trial court granted the Peoples motion just prior to trial to amend the information
to include the necessary element of specific intent. Id. The Colorado Supreme
Court held that it is proper to amend as to form or substance at any time prior to
trial:
It is clear that an information may be amended as to form or
substance at any time prior to trial. Crim. P. 7(e). Here, the
amendment cured the defect in the information.
Id. Likewise, in this case, the county court had jurisdiction to permit amendment
of the harassment charge prior to trial.
It is axiomatic that [d]efects in an informationcan be cured by timely
amendment. Cervantes, 715 P.2d at 786; People v. Thomas, 832 P.2d 990, 991
(Colo. App. 1991) (alleged insufficiency of the charging document was measured
7

by the proposed amended information [that] was not defective in form or

substance; it contained all of the essential elements of the crime and was
sufficiently specific to give the defendant notice of the charge). The amendment
to the harassment charge incorporated the essential elements of the offense by
specific reference to the statutory subsection. C.R.S. 18-9-111(1)(a) (A person
commits harassment, if with intent to harass, annoy, or alarm another person, he or
she strikes, shoves, kicks, or otherwise touches a person or subjects him to physical
contact); Williams, 984 P.2d at 60 (essential elements of a crime may be alleged
directly or incorporated by specific reference); Cervantes, 715 P.2d at 786
(same).
Bowlens reliance on People v. Wilson, 114 P.3d 19 (Colo. App. 2004) is
misplaced. (Opening Brief p. 7). Defendant Wilsons conviction for Aggravated
Driving After Revocation was set aside because the information did not charge him
with an aggravating factor. Wilson, 114 P.3d at 25. In Wilson, the offending
count was never amended. Unlike this case, Wilson was tried under a defective
charge.
C. The court did not abuse its discretion in permitting the amendment;
Bowlen sustained no prejudice.
Crim. P. 7(e) expresses the Colorado Supreme Courts liberal policy
regarding amendment of charging documents. People v. Hertz, 586 P.2d 5, 6
8

(Colo. 1978). The policies underlying Rule 7(e) also apply to county court
summonses and complaints. Id.
Charging documents should be construed to avoid the dismissal of cases for
technical irregularities that can be cured through amendment. Hertz, 586 P. 2d at 6
(Colo. 1978) (construing county court summons and complaint); People v. Walker,
321 P.3d 528, 543 (Colo. App. 2011), revd on another point 318 P.3d 479 (Colo.
2014). In furtherance of this policy, Rule 7(e) permits a charging document to be
amended as to form or substance at any time prior to trial:
The court may permit an information to be amended as to
form or substance at any time prior to trial; the court may
permit it to be amended as to form at any time before the
verdict or finding if no additional or different offense is
charged and if substantial rights of the defendant are not
prejudiced.
Crim. P. 7(e).
Here, prior to bringing the prospective jurors to the courtroom, the court
permitted amendment of the harassment count to allege the applicable statutory
subsection, finding this was an amendment as to form. (Tr. 4/13/16 p. 25 lines 112; p. 28 lines 3-16.) The amendment occurred prior to trial as specified by Rule
7(e). It is within the trial courts discretion to allow an information to be amended

as to form or substance at any time prior to trial. Crim. P. 7(e); Thomas, 832 P.2d
at 972; People v. Wright, 678 P.2d 1072 (Colo. App. 1984).
Under the plain language of Crim. P. 7(e), the form/substance dichotomy is
an issue only where the amendment occurs after the commencement of trial.
While all cases applying Crim. P. 7(c) state the general rule, it is those that address
amendments made after the commencement of trial (or none at all) that contain
extensive discussion of the form/substance distinction. Williams, 984 P.2d at 5963 (no amendment); People v. Metcalf, 926 P.2d 133, 139-40 (Colo. App. 1996)
(amendment after the close of the evidence); People v. Johnson, 644 P.2d 34, 3737 (Colo. App. 1980) (amendment at close of states case). To the extent these
cases and others address the form/substance dichotomy, they are not applicable.
Because the amendment to Bowlens harassment charge was made prior to trial,
the form/substance distinction is irrelevant. This is so because any prejudice
arising from an amendment made prior to trial may be cured by a continuance.
See Argument I-D.
Here, the county court did not abuse its discretion in permitting amendment
of the original statutory citation to include the applicable subsection. Walker, 321
P.3d at 543 (trial court did not err by permitting prosecution, on morning of trial, to

10

amend six counts of sexual exploitation of a child by expanding alleged dates)1;

Thomas, 832 P.2d at 991-92 (information alleging riot in detention facility could
be amended on day of trial to allege riot in detention facility with use of destructive
device); People v. King, 581 P.2d 739 (Colo. App. 1978) (trial court did not abuse
its discretion in permitting, on morning of trial, a second amendment to the date of
offense).
The county court found the defense was clearly on notice of the elements
of the offense given the discovery in the case. (Tr. 4/13/16 p. 25 lines 6-8.)
People v. Al-Yousif, 206 P.3d, 824, 830 (Colo. App. 2006) (the day before trial, the
court properly permitted amendment of a robbery count, finding in part that
defendant had full notice of the evidence to be used against him [and] he had
received full discovery).
As illustrated by testimony at the motions hearing on October 27, 2015,
Bowlens defense attorney was involved in the case investigation from its
inception:
1. When Officers asked Bowlen if they could come in the apartment,
Bowlen replied as long as he had his attorney on the phone. (Tr.
10/27/15 p. 12 lines 13-17.)

While the prosecution moved to amend on day of trial, the court did not permit
the amendments until after opening statement. Walker, 321 P.3d at 543.
11

2. Officer Montour testified that, as soon as the Officers entered the

apartment, Bowlen was on the phone with his lawyer who Bowlen
identified as Harvey. (Tr. 10/27/15 p. 14 lines 10-13.)
3. At the same motions hearing, Officer Gillis testified that, when he
answered the door, Bowlen stated to the Officers, I didnt do anything
wrong, Im going to call Harvey. (Tr. 10/27/15 p. 35 lines 20-22.)
(Tr. 10/27/15 p. 42 lines 12-14; p. 44 7-13; p. 50 lines 24-25, p. 51 lines 1-6.)
Second, at the same hearing approximately five months prior to trial, defense
counsel was present as Officers Montour and Gillis testified to facts that are
consistent with harassment only as charged under subsection 18--9-111(1)(a) (a
shove). See Statement of Facts.
Third, at a hearing on January 22, 2016, defense counsel quoted to the
county court from discovery provided by the People:
According to Best, she told Bowlen she was
going to call 911 because of his behavior. And she went
into the bathroom to call the police. Bowlen then ran
into the bathroom, forcibly grabbed her shoulders and
shoved her against a wall at which point she dropped her
cell phone. Best stated Bowlen then picked up her phone
and walked away from her. He manipulated the cell
phone which interfered and hindered her from speaking
with and rendering aid from emergency services.
(emphasis added.)
(Tr. 1/22/16 p. 16 lines 1-14.)
12

Even without looking at the original or amended harassment charge, defense

counsel was well aware of all facts underlying the particular harassment charge.
C.R.S. 18-9-111(1)(a) (A person commits harassment, if with intent to harass,
annoy, or alarm another person, he or she strikes, shoves, kicks, or otherwise
touches a person or subjects him to physical contact). The other subsections of
C.R.S. 18-9-111 are factually inapplicable to Bowlens case.
On a related point, the original harassment charge complied with statute and
rule. Officer Montour completed a standardized form similar to those used
throughout Colorado whenever officers cite someone for a misdemeanor offense.
Crim. P. 4.1 (c)(4) requires that the summons and complaint state the name of the
defendant, identify the offense charged, including a citation to the statute and a
brief description of the offense charged, indicate the date and approximate location
and direct the defendant to appear before a specified county court at a stated time
and place.
Here, the Uniform Summons and Complaint met Rule 4.1 requirements
because it:
1. Named Bowlen and gave additional information concerning address and
description;
2. Identified the statute as 18-9-111;

13

3. Briefly described the offense as Harassment, An Act of Domestic

Violence 18-6-800.3 & 18-6-801.6;
4. Provided the offense date as 6-3-15;
5. Identified the location as the State of Colorado, Arapahoe County at the
approximate location of 4550 Cherry Creek Drive South, #2301,
Glendale Co, 80246; and
6. Directed Bowlen to appear before the Arapahoe Combined Courts on
June 4, 2015 at 8:30 a.m. at the stated address.
(R. at 20.) The legislature enacted C.R.S. 16-2-106 and the other simplified
county court procedures because it intended to decrease the burden on the county
court process, with the result that pleading requirements in county court are not as
detailed as those in district court.
The purposes served by a criminal charging document are to advise the
defendant of the nature of the charges against him, to enable him to prepare a
defense, and to protect him from further prosecution for the same offense. Thomas,
832 P.2d at 992; People v. Cervantes, 677 P.2d 403 (Colo. App. 1983), aff'd, 715
P.2d 783 (Colo. 1986). When completed, the Uniform Summons and Complaint
adequately serves these functions and meets the requirements of Rule 4.1 and
C.R.S. 16-2-106. The simplified county court complaints used across the State

14

over the years sufficiently advise defendants and confer jurisdiction on the county
court.
The Colorado Supreme Court has recognized the different pleading
standards prevailing in county versus district courts:
[Referencing a county court summons and complaint]
Liberal amendment is particularly appropriate here where
a police officer in the field, not an attorney, drafts the
charges, relying on the language of the statute as a basis
for the allegations in the complaint.
Hertz, 586 P.2d at 5.
D. The amendment was one of form, not substance.
Even if this Court construes the amendment as one made during trial, Rule
7(e) provides that amendments of form may be made at any time before the
verdict. Whether an amendment is a matter of form or substance depends on the
circumstances of the case.
In Cervantes, for the purpose of a motion to amend made during trial, the
Colorado Supreme Court stated the test for evaluating the form/substance question:
in evaluating the form/substance question for the
purpose of a motion to amend, a count in an information
cannot be viewed as setting forth a naked charge isolated
for any surrounding circumstances.

15

715 P.2d at 786. The Cervantes Court looked to the circumstances of that case,
which established that:
1. After preliminary hearing, a first degree assault charge was bound over as
second degree assault and the court directed the prosecutor to amend the
information to reflect the lesser charge.
2. Prior to trial, the prosecutor amended the charge to state the lesser offense.
3. After the jury was sworn, the prosecutor was permitted to again amend the
second degree assault charge to specify the statutory subsection, which
amendment was the subject of the appeal.
715 P.2d at 784-85. Under these circumstances, the Court concluded that the
information, viewed together with the circumstances surrounding its initial
amendment before trial, sufficiently advised the defendant of the charges. 715
P.2d at 786. Despite the fact that the jury had been sworn, the Supreme Court held
that the second amendment to the second degree assault charge was properly
allowed. 715 P.2d at 786-87.
In the context of a motion to amend made during trial, the Colorado Court of
Appeals also requires that the form/substance question include an examination of
the facts of the case. Walker, 321 P.3d at 543 (In order to determine whether an
amendment is one of form or substance, the court must evaluate the count as
alleged in the information, as well as the circumstances surrounding the case.);
16

People v. Metcalf, 926 P.2d 133, 139 (Colo. App. 1996) (same). In Walker, on
morning of trial, the prosecution moved to amend six counts of sexual exploitation
of a child by expanding alleged dates, and the trial court properly granted the
motion after opening statements. 321 P.3d at 543-44. In Metcalf, after the close of
the evidence, the trial court properly allowed the prosecution to amend the
information to include the basis for tolling the limitations period. 926 P.2d at 138.
The facts of this case show no prejudice to Bowlen by reason of the
amendment. Bowlens reaction to the Peoples motion to amend Count One
(telecommunication crime) contrasts sharply with that prompted by the amendment
of the harassment charge. When moving for dismissal of the harassment charge,
Bowlen did not claim prejudice. (Tr. 4/13/16 p. 24 lines 9-13.) Despite the
absence of a specific statutory subsection, Bowlens counsel did not claim he
misunderstand the basis for the charge. Id. Counsel was not surprised, and made
no assertion of this sort. Id.
Had Bowlen felt prejudiced by amendment of the harassment charge, he
could have requested a continuance. The People had already indicated their
willingness to continue the case. (Tr. 4/13/16 p. 16 lines 8-20.) Adequate time
remained in the speedy trial period. (Tr. 4/13/16 p. 6 lines 22-24; p. 19 lines 1112.) But Bowlen rejected a continuance. (Tr. 4/13/16 p. 18 lines 16-17.) Thomas,
832 P.2d at 992 (amendment, on day of trial, changing charge from an unclassified
17

felony to a class three felony was proper where defendant understood allegations
of amendment, failed to request a continuance and made no showing of prejudice).
Had Bowlens counsel felt confused or misled by the officers failure to cite
a specific statutory subsection in the original harassment charge, he could have
requested a bill of particulars. People v. Ingersoll, 506 P.2d 364, (Colo. 1973)
(where offense charged may be committed in alternative ways, the defendant may
require the prosecution to state the particular manner in which he committed the
offense by filing motion for a bill of particulars). While Bowlens counsel is not
required to request a bill of particulars, the failure to do so warrants the inference
that counsel was well aware that the only statutory subsection possibly applicable
to the events in question was C.R.S. 18-9-111(1)(a). This inference is only
strengthened when one considers the testimony at the motions hearing and other
discovery provided.
The issue is whether Bowlen had adequate notice for purposes of trial
preparation and whether he is protected from further prosecution for the same
offense in a subsequent prosecution. Williams, 984 P.2d at 64. The record shows
Bowlen was eminently capable of adequately defending himself. (Tr. 4/13/16 pp.
5-330; Tr. 4/14/16 pp 3-19, 36-46.) Bowlens conviction based on the amended
harassment charge protects Bowlen from further prosecution for the same offense,
i.e. at approximately 10:12 p.m. on June 3, 2015, at 4550 Cherry Creek Drive,
18

Glendale Colorado, Bowlen committed harassment, with the intent to harass,

annoy, or alarm Ms. Best, by shoving her.
In conclusion, months before trial at the motions hearing, Bowlen had actual
knowledge that only subsection C.R.S. 18-9-111(1)(a) was applicable. People v.
Butler, 929 P.2d 36, 39 (Colo. App. 1996) (where habitual offender had actual
notice he was being charged with commission of three prior felonies under 1613-101(2) rather than two prior felonies under 16-13-101(1), the prosecutors
amendment of the statutory citation after presentation of the evidence was a matter
of form, not substance). Prior to trial, Bowlens actual knowledge was based on
the original harassment charge, the original statutory citation, defense counsels
involvement in the investigation, motions testimony months before trial, and
discovery provided. Thus, the amendment prior to trial was a matter of form, not
substance.
CONCLUSION
The People respectfully request that this Court AFFIRM Bowlens
conviction.

19

Respectfully submitted,
GEORGE BRAUCHLER,
District Attorney
BY: s/ Susan J. Trout
SUSAN J. TROUT #8504
Senior Deputy District Attorney

August 30, 2016

Date

Original signature on file with the

Office of the District Attorney

CERTIFICATE OF SERVICE
On
August 30, 2016 , I hereby certify that a true and correct copy of the
foregoing ANSWER BRIEF was e-filed via Integrated Colorado Courts E-Filing
System (ICCES) to the following:
Michael P. Zweibel
Harvey A. Steinberg
Springer and Steinberg, P.C.
1600 Broadway, Suite 1200
Denver, Colorado 80202
Via US Mail:
Hon. Judge Darren Vahle
7325 S. Potomac Street
Centennial, CO 80112
By s/ Cathy Nevill
Cathy Nevill, Paralegal
Original signature on file with the
Office of the District Attorney
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