v. Deutsch

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.

SUMMARY
July 23, 2020

2020COA114

No. 18CA2055, People v. Deutsch — Crimes — Criminal
Extortion; Criminal Law — Indictments — Constructive
Amendment; Constitutional Law — Due Process

A division of the court of appeals applies the concept of

constructive amendment to the criminal extortion statute for the

first time. The division concludes that because the instruction

expanded the bases upon which the defendant could be convicted,

the instruction constructively amended the complaint and

information.

The division also finds no actual conflict of interest between an

attorney and a client when the client has threatened the attorney.
COLORADO COURT OF APPEALS 2020COA114

Court of Appeals No. 18CA2055
Jefferson County District Court No. 17CR3234
Honorable Jeffrey R. Pilkington, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Keith Edwin Deutsch,

Defendant-Appellant.

JUDGMENT AFFIRMED IN PART, VACATED IN PART,
AND CASE REMANDED WITH DIRECTIONS

Division II
Opinion by JUSTICE MARTINEZ*
Román and Pawar, JJ., concur

Announced July 23, 2020

Philip J. Weiser, Attorney General, Jillian J. Price, Senior Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Sarah Spears, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2019.
¶1 Defendant, Keith Edwin Deutsch, appeals the judgment of

conviction entered on jury verdicts finding him guilty of criminal

extortion and violation of a custody order. We affirm in part and

vacate in part.

I. Background

¶2 Deutsch and his ex-wife, Alicia O’Sullivan, share custody of

their daughter according to the terms specified in a court custody

order. Deutsch and O’Sullivan talk about their daughter primarily

through Talking Parents, an e-messaging system that keeps a

record of communications to support co-parenting.

¶3 On September 8, 2017, O’Sullivan went to pick up her

daughter from daycare and discovered that Deutsch had already

picked her up. O’Sullivan contacted Deutsch via Talking Parents

and informed him that this was not his parenting time and he

needed to return their daughter to her. When Deutsch refused,

O’Sullivan called the police. After a deputy arrived, O’Sullivan

spoke with Deutsch on speakerphone. Deutsch threatened that he

would not return their daughter until O’Sullivan paid him $1988,

gave him additional parenting time, and allowed their daughter to

take a vacation with him during her parenting time. O’Sullivan told

1
 him that she “would give him whatever he wanted if he would just

bring her back.” Deutsch then brought their daughter to a park

near O’Sullivan’s house.

¶4 Deutsch was arrested and charged with criminal extortion

(threat of economic harm) and violation of a custody order.

Following a jury trial, he was found guilty as charged and sentenced

to two years of probation on each count, to be served concurrently.

II. Deutsch’s Right to a Fair Trial and Conflict-Free Counsel Was
Not Violated

¶5 Deutsch first contends that the court presiding over the

conflict hearing violated his right to a fair trial and conflict-free

counsel by failing to advise him of his rights and the risks

associated with waiving conflict-free representation. We disagree.

A. Additional Background

¶6 On the morning of trial, defense counsel moved to withdraw

because of a conflict of interest between him and his client. A

conflict hearing was held before another judge.

¶7 Defense counsel told the conflict court that, on more than one

occasion during trial preparations, Deutsch had become verbally

abusive and screamed at him, using threatening, obscenity-laced

2
 language. At one point, defense counsel stated that he threatened

to dial 911 unless Deutsch ceased his behavior. The morning of

trial, defense counsel spoke with Deutsch outside of the courtroom

and advised him that he “could very well have a conflict with him,

and would not be able to represent him.” Deutsch blocked his

entrance to the courtroom, “became very upset,” looked “as if he

was going to head-butt [him],” and “grabbed [him] physically.”

Defense counsel told the conflict court that he felt threatened and

that “the relationship has devolved to the point that I cannot

represent him.”

¶8 When the conflict court asked Deutsch whether he agreed with

his defense counsel’s description of what happened, Deutsch

responded that “[e]verything he said is a lie,” his attorney showed

up unprepared for trial, and he wanted to avoid another

continuance. He also explained this was his third attorney because

the first attorney was not prepared for trial and there was a

payment issue with the second attorney. When the conflict court

asked Deutsch whether he wanted the court to continue the trial,

Deutsch responded, “No, please, not.” At one point, the conflict

court asked Deutsch whether he could make peace with his

3
 attorney and go to trial that day. Deutsch replied that he was

“perfectly fine going to trial. I see why he’s not, because he has no

idea – he’s never even read the discovery. But I’m ready.”

¶9 Deutsch also told the conflict court, “I do need continuance. I

need a competent attorney.” Ultimately, the conflict court

confronted Deutsch with the ambivalence he had expressed and

directly asked him, “Are you asking me to give you a continuance so

you can hire a different lawyer?” Deutsch said he did not want to

continue the trial and repeated that response when the court asked

again. Deutsch also said, in response to the court’s questions, that

he did not want to represent himself and that he wanted his current

attorney to represent him at trial.

¶ 10 The court also asked defense counsel whether he thought he

could “get along with [Deutsch] well enough to represent him at a

one-day trial.” He responded that he did not think so: “I just feel

that it is – there is no relationship, attorney/client, that remains.”

He later elaborated that his concerns are “for me, and I simply do

not feel safe working with Mr. Deutsch anymore.”

¶ 11 The conflict court denied the motion to withdraw, finding,

4
 I just think that if I were to grant this request
to withdraw, that we’d be right back in the
same situation a month or two hence. And
given what Mr. Deutsch has told me, I think
that this is one of those matters, [counsel],
where you’re just going to have to do the best
you can with Mr. Deutsch, and if things get
worse, then I get [sic] guess we can all come
back here. I’ll be here all day. You’ll need to
let me know.

But as for right now, [counsel’s] request to
withdraw from the case will be denied for the
reasons I’ve stated, and gentlemen, you’ll need
to go back to [the trial court], and we’ll bring
the jury up.

¶ 12 The trial then proceeded as scheduled and defense counsel did

not renew his motion to withdraw.

B. Standard of Review

¶ 13 We review de novo whether an actual conflict of interest

existed. People v. Hagos, 250 P.3d 596, 613 (Colo. App. 2009).

C. Applicable Law

¶ 14 A defendant has a constitutional right to conflict-free counsel.

U.S. Const. amend. VI; Colo. Const. art. II, § 16; People v. Ragusa,

220 P.3d 1002, 1006 (Colo. App. 2009). This is considered

essential to a fair trial. People v. Arguello, 772 P.2d 87, 92 (Colo.

1989). A conflict of interest exists when an attorney’s ability to

represent a client is materially limited by the attorney’s own

5
 interests. People v. Edebohls, 944 P.2d 552, 556 (Colo. App. 1996).

Although a defendant is entitled to conflict-free counsel, the

defendant may waive this right. People v. Harlan, 54 P.3d 871, 879

(Colo. 2002).

¶ 15 “Once a trial court is put on notice of a potential conflict of

interest between the defendant and defense counsel, it has a duty

to inquire into the propriety of continued representation by

counsel.” Hagos, 250 P.3d at 613 (citation omitted). However, a

trial court’s failure to inquire into a potential conflict is not

automatic grounds for reversal. See Mickens v. Taylor, 535 U.S.

162, 174 (2002). To obtain reversal, the defendant must show that

defense counsel was subject to an actual conflict of interest.

Hagos, 250 P.3d at 613-14.

¶ 16 “An actual conflict of interest is one that is real and

substantial, and adversely affects counsel’s performance, while a

potential conflict of interest is one that is possible or nascent, and

in all probability will arise.” People v. Curren, 228 P.3d 253, 258

(Colo. App. 2009).

6
 D. Analysis

¶ 17 The People concede that the conflict court did not advise

Deutsch of his right to conflict-free counsel. Nevertheless, because

there was no actual conflict, the People argue that “any deficiencies

in the conflict court’s advisement are moot.” We agree.

¶ 18 Deutsch argues that the actual conflict of interest here is

similar to that in Edebohls, 944 P.2d 552. But, in Edebohls,

defense counsel had pending criminal charges in the same court.

Id. at 554. Defense counsel’s personal interest in the outcome of

the case against him before the same court was an actual conflict of

interest. Id. Here, even though the conflict court told Deutsch and

his attorney “if things get worse . . . we can all come back here,”

neither returned to the conflict court. Deutsch argues that,

because his attorney was uncomfortable being in the same room

with him, this fear “may well have factored into [his attorney’s] trial

strategy, pretrial advice, and likely negatively impacted his ability to

prepare for trial.” While fear of a client could be an actual conflict

of interest, from the record before us we cannot determine whether

fear actually affected the attorney’s ability to represent Deutsch.

Deutsch also argues that communication with his attorney was

7
 “irreparably dysfunctional.” But an actual conflict of interest

requires “more than a theoretical conflict.” People v. Garner, 2015

COA 174, ¶ 55 (citation omitted). Thus, animosity does not

constitute an actual conflict. People v. Hodges, 134 P.3d 419, 425

(Colo. App. 2005), aff’d on other grounds, 158 P.3d 922 (Colo. 2007).

On this record we cannot determine the nature of communications

between Deutsch and his attorney after the conflict court urged

them to keep trying. We will not presume that the attorney-client

relationship deteriorated such that the potential conflict of interest

became an actual conflict of interest.

¶ 19 Accordingly, Deutsch fails to demonstrate a conflict of interest

that adversely affected his attorney’s performance. Although

Deutsch is correct that courts “need not attempt to calculate the

amount of prejudice attributable to the conflict,” Edebohls, 944

P.2d at 559, this is a distinct inquiry from determining whether “an

actual conflict of interest affected the quality of representation

conclusively establish[ing] a constitutional violation requiring

reversal.” People v. Delgadillo, 2012 COA 33, ¶ 36.

¶ 20 Because Deutsch fails to demonstrate “the existence of an

actual conflict that adversely affected counsel’s performance,”

8
 Hagos, 250 P.3d at 614, the error — failure to advise about the

right to conflict-free counsel — does not require reversal. Id.

Moreover, because there was no actual conflict, we need not

determine whether Deutsch validly waived his right to conflict-free

counsel.

III. There Was Insufficient Evidence to Support Deutsch’s
Conviction for Criminal Extortion in Light of the Constructive
Amendment

¶ 21 Deutsch also argues that the trial court violated his due

process rights by permitting a constructive amendment of the

criminal extortion count. He further argues that, in light of the

constructive amendment, there was insufficient evidence to support

his conviction for criminal extortion: specifically, the prosecution

failed to prove beyond a reasonable doubt that he made a

substantial threat to cause economic hardship, as alleged in the

complaint. We agree and address each contention in turn.

A. Standards of Review

¶ 22 We review variances de novo. People v. Rail, 2016 COA 24,

¶ 48, aff’d on other grounds, 2019 CO 99. Deutsch did not,

however, preserve this issue for appeal. Accordingly, reversal is

required only if there was plain error. People v. Rediger, 2018 CO

9
 32, ¶ 33. Plain error is error that is both obvious and substantial.

Id. at ¶ 48. An error is substantial if it so undermines the

fundamental fairness of the trial itself as to cast serious doubt on

the reliability of the judgment of conviction. Id. at ¶ 52.

¶ 23 We also review sufficiency of the evidence claims de novo.

McCoy v. People, 2019 CO 44, ¶ 6.

B. Applicable Law

¶ 24 A person commits criminal extortion if

(a) The person, without legal authority and
with the intent to induce another person
against that other person’s will to perform an
act or to refrain from performing a lawful act,
makes a substantial threat to confine or
restrain, cause economic hardship or bodily
injury to, or damage the property or reputation
of, the threatened person or another person;
and

(b) The person threatens to cause the results
described in paragraph (a) of this subsection
(1) by:

(I) Performing or causing an unlawful act to be
performed . . . .

§ 18-3-207(1), C.R.S. 2019. Thus, to commit criminal extortion, a

person must (1) make a substantial threat to another person; (2)

make this threat without legal authority and with the intent to

10
 induce the other person to perform an act; and (3) threaten to cause

the result, such as confining another person or threatening

economic hardship, by performing an unlawful act. People v.

Campbell, 174 P.3d 860, 866 (Colo. App. 2007).

C. The Variance Constitutes a Constructive Amendment

¶ 25 In determining whether there is an impermissible variance, we

consider whether “the charge contained in an indictment differs

from the charge of which the defendant is convicted.” People v.

Gallegos, 260 P.3d 15, 25 (Colo. App. 2010). Generally, there are

two types of variances: simple variances and constructive

amendments. People v. Pahl, 169 P.3d 169, 178 (Colo. App. 2006).

“A simple variance occurs when the charged elements are

unchanged, but the evidence presented at trial proves facts

materially different from those alleged in the indictment.” Id. at

177. A constructive amendment, on the other hand, occurs “when

jury instructions change an element of the charged offense to the

extent the amendment ‘effectively subject[s] a defendant to the risk

of conviction for an offense that was not originally charged.’” Id.

(quoting People v. Rodriguez, 914 P.2d 230, 257 (Colo. 1996)).

“Constructively amending a charge violates a defendant’s

11
 constitutional due process rights . . . .” People v. Hoggard, 2017

COA 88, ¶ 27, aff’d on other grounds, 2020 CO 54.

¶ 26 Here, the prosecution charged Deutsch with criminal extortion

under section 18-3-207(1)(a), (b)(I). The complaint and information

specifically alleged that Deutsch committed criminal extortion by

“[making] a substantial threat to cause economic hardship.” But at

the end of the trial, the court provided an elemental instruction to

the jury that tracked the statute in its entirety, listing multiple ways

in which Deutsch could have substantially threatened the victim.

No special interrogatory or unanimity instruction was provided to

the jury to determine whether he was convicted of criminal

extortion because he made a substantial threat to cause economic

hardship.

¶ 27 Although constructive amendments sometimes occur when an

instruction references a different statutory subsection than the

complaint, see, e.g., Rediger, ¶ 35, this is not dispositive. Rather,

the key inquiry is whether the jury instruction “change[d] an

essential element of the charged offense.” Rodriguez, 914 P.2d at

257. Here, Deutsch was charged with and convicted of criminal

extortion under section 18-3-207(1)(a), (b)(I). However, while he was

12
 charged with committing criminal extortion by threatening to cause

economic hardship, the instruction included other possible threats.

Therefore, the instruction changed an element of the charge.

Because the instruction expanded the bases upon which Deutsch

could be convicted beyond threatening to cause economic hardship,

the instruction constructively amended the complaint and

information. See People v. Weeks, 2015 COA 77, ¶¶ 49-52

(determining indictment was constructively amended when

instructions included additional ways in which a person may be

guilty of child abuse).

D. The Constructive Amendment Error Was Plain

¶ 28 Nevertheless, the constructive amendment is not reversible

error unless it was obvious and “undermined the fundamental

fairness of the trial itself so as to cast serious doubt on the

reliability of the judgment of conviction.” Hagos v. People, 2012 CO

63, ¶ 14 (quoting People v. Miller, 113 P.3d 743, 750 (Colo. 2005)).

¶ 29 Here, the error is obvious. Whereas the complaint provided

that Deutsch was charged with criminal extortion for “threaten[ing]

to cause economic hardship,” the jury instruction provided that he

was charged with criminal extortion for “threaten[ing] to confine or

13
 restrain, cause economic hardship or bodily injury to, or damage

the property or reputation of, the threatened person or another

person” as an element of the charge.

¶ 30 The error is also substantial. The information did not place

Deutsch on notice that he would have to defend against this

different element submitted to the jury. See Rediger, ¶ 51. In

addition, we perceive a substantial likelihood that the jury found

Deutsch guilty of criminal extortion for threatening to confine or

restrain another person, rather than for threatening to cause

economic hardship. The evidence presented at trial was that

Deutsch threatened not to return his daughter to O’Sullivan. There

was no evidence of a threat to cause economic harm. Further, in

closing argument, the prosecutor explicitly argued that the

“substantial threat that we’re talking about here is that [Deutsch]

has her child.” The prosecutor never argued that the substantial

threat was to cause economic harm.

¶ 31 Because we believe that the error here was obvious,

substantial, and so undermined the fundamental fairness of

Deutsch’s trial as to cast serious doubt on the reliability of the

judgment of conviction, we conclude that the trial court plainly

14
 erred by allowing Deutsch’s criminal extortion conviction to stand

in spite of the constructive amendment.

E. Insufficient Evidence Supports Deutsch’s Criminal Extortion
Conviction

¶ 32 Having found plain error, we must next determine the proper

remedy. If the evidence supports a conviction for criminal extortion

under section 18-3-207(1)(a), (b)(I) as originally charged, we must

remand for a new trial. Rediger, ¶ 54 (citing People v. Lopez, 140

P.3d 106, 109 (Colo. App. 2005)). But here, because the evidence

does not support the conviction, we vacate the conviction and direct

the trial court to dismiss the charge. See id.

¶ 33 When considering a challenge to the sufficiency of the evidence

supporting a conviction, we review “whether the relevant evidence,

both direct and circumstantial, when viewed as a whole and in the

light most favorable to the prosecution, is substantial and sufficient

to support a conclusion by a reasonable mind that the defendant is

guilty of the charge beyond a reasonable doubt.” McCoy, ¶ 63

(quoting Clark v. People, 232 P.3d 1287, 1291 (Colo. 2010)).

¶ 34 Here, the evidence showed that Deutsch threatened to

maintain custody of his daughter contrary to the custody order

15
 until O’Sullivan met his demands. Although Deutsch requested

that O’Sullivan pay him money, that was the intended action, not

the threat. Viewing these facts in the light most favorable to the

prosecution, we cannot conclude that the evidence is sufficient to

allow a reasonable juror to find that Deutsch committed criminal

extortion by threatening to cause economic hardship to the victim.

To the contrary, the evidence showed that he threatened to “confine

or restrain . . . another person,” § 18-3-207(1)(a), i.e., his daughter,

with the intent to induce O’Sullivan to meet his demands. Because

the evidence is insufficient to establish that Deutsch committed

criminal extortion by threatening to cause economic hardship, we

vacate his conviction.

IV. The Trial Court Did Not Violate Deutsch’s Right to a Fair Trial
by Admitting Other Acts Evidence

¶ 35 Lastly, Deutsch argues that the trial court violated his right to

a fair trial by admitting evidence of other acts in violation of CRE

404(b). We disagree. Because we vacate his conviction for criminal

extortion, we only address this argument as it pertains to his

conviction for violation of a custody order.

16
 A. Additional Background

¶ 36 As relevant here, the prosecutor admitted four exhibits at trial:

a copy of the transcript of the custody order and copies of three

excerpts of the Talking Parents communications. Deutsch’s

counsel did not object to any of these exhibits at trial.

¶ 37 In the transcript of the custody order, there is reference to a

“disturbing” poem written by Deutsch. The contents of the poem

are not included in the transcript and no further mention of it was

made during the custody hearing. Nor was it mentioned at trial.

¶ 38 In the first excerpt of the Talking Parents communications,

O’Sullivan told Deutsch about her plans with their daughter for the

weekend of September 8, 2017. Deutsch told O’Sullivan he was

taking a trip to New Zealand. In the second excerpt, O’Sullivan

reminded Deutsch that she would have parenting time “for quite

some time given you are leaving for New Zealand.” Deutsch

accused O’Sullivan of using substances during her pregnancy and

being “a TERRIBLE mother.” And in the third excerpt, beginning

four days before Deutsch picked up his daughter from daycare, he

accused O’Sullivan of “blocking communication” with their

daughter and again accused her of using substances during her

17
 pregnancy. He also threatened that he would “use every means at

my discretion to prove you insane.” He later stated that he

assumed he had parenting time with their daughter that weekend.

The prosecutor referred to the Talking Parents communications

excerpts during closing argument to refute the notion that Deutsch

mistakenly believed that he had parenting time with his daughter

that weekend.

B. Standard of Review

¶ 39 A trial court’s admission of evidence is reviewed for an abuse

of discretion. People v. Ibarra, 849 P.2d 33, 38 (Colo. 1993). An

abuse of discretion occurs when the trial court’s “ruling is

‘manifestly arbitrary, unreasonable, or unfair,’ or where it is based

on an erroneous view of the law.” People v. Elmarr, 2015 CO 53,

¶ 20 (citation omitted).

C. Applicable Law

¶ 40 Evidence of other relevant offenses or acts may be admissible

under CRE 404(b). Under CRE 404(b), “[e]vidence of other crimes,

wrongs, or acts . . . may . . . be admissible for . . . proof of motive,

opportunity, intent, preparation, plan, knowledge, [or] identity.”

However, it “is not admissible to prove the character of a person in

18
 order to show that he acted in conformity therewith.” CRE 404(b).

Rule 404(b) evidence “generally occurs at different times and under

different circumstances from the charged offense.” People v. Trujillo,

2014 COA 72, ¶ 69 (quoting People v. Quintana, 882 P.2d 1366,

1372 (Colo. 1994)). Thus, “evidence is properly designated” as Rule

404(b) evidence if it “involves a separate and distinct episode wholly

independent from the offense charged,” even if it is “similar in

nature” to the charged offense. Id. (quoting Quintana, 882 P.2d at

1372-73).

¶ 41 To be admissible under Rule 404(b), evidence must comply

with the four-prong test articulated in People v. Spoto, 795 P.2d

1314, 1318 (Colo. 1990). To comply with the Spoto test, evidence

must

(1) relate to a material fact of consequence in determining the

action;

(2) be logically relevant because it has a tendency to make the

existence of the material fact more or less probable;

(3) have logical relevance “independent of the intermediate

inference, prohibited by CRE 404(b), that the defendant has a

bad character”; and

19
 (4) have probative value that is not substantially outweighed

by the danger of unfair prejudice.

Id.

D. Analysis

¶ 42 Deutsch argues that the poem and Talking Parents

communications constitute inadmissible prior act evidence. But

because he did not preserve this claim, any error is not reversible

unless the error is obvious and substantial and so undermines the

fundamental fairness of the trial itself as to cast serious doubt on

the reliability of the judgment of conviction. Rediger, ¶ 52. And

here, any error is neither obvious nor substantial.

¶ 43 The transcript of the custody hearing in which the poem is

referenced was admitted to establish the terms of the custody order.

This was critical to determining whether Deutsch violated the terms

of the order. However, the portion of the transcript that discusses

the poem was not relevant to a material fact of consequence. Spoto,

795 P.2d at 1318 (prong one). Therefore, it was error to admit this

portion of the transcript. Nevertheless, the error was not obvious or

substantial. The poem was only briefly discussed at the custody

hearing. And the contents of the poem were not part of the hearing

20
 transcript, nor were they referenced at trial. Moreover, the trial

court cannot be expected, sua sponte, to pause a trial to review a

fifty-eight-page transcript to consider possible objections that could

have been made and determine whether redactions would address

those objections.

¶ 44 The Talking Parents communications were admitted to rebut

Deutsch’s defense that he did not intentionally deprive O’Sullivan of

her parenting time with their daughter. See § 18-3-304(2), C.R.S.

2019 (Violation of a custody order requires “intent to deprive the

lawful . . . person with parental responsibilities of the custody or

care of a child[.]”). Their admission made his defense less probable

than it would be without the evidence, independent of the inference

that Deutsch has a bad character. Although some of the language

used by Deutsch in the communications was threatening and

antagonistic, any potential prejudice did not substantially outweigh

its probative value. Furthermore, defense counsel also relied on

portions of the Talking Parents communications to support his

argument that this was simply a case of poor communication.

Therefore, we perceive no error in admitting the Talking Parents

communications.

21
 V. Conclusion

¶ 45 We vacate the conviction for criminal extortion and remand for

correction of the mittimus. We affirm the judgment in all other

respects.

JUDGE ROMÁN and JUDGE PAWAR concur.

22