dissenting.
The majority reverses a conviction (and 26-year sentence) for child abuse resulting in the death of the defendant's daughter, on the grounds that a jury instruction, which the defendant apparently found acceptable at trial, amounted to "plain and reversible error." By conflating two distinct legal doctrines, developed to protect against substantially different dangers, the majority fails to demonstrate a violation of either; and after mis-characterizing or misapplying the current statute, the instructions that were actually given in this case, and several previous holdings of this court, it simply declares victory and reverses the jury's verdiet. For a host of reasons, I consider the majority's holding both legally flawed and patently offensive to reasonable jurors. I therefore respectfully dissent.
We granted a writ of certiorari to review the court of appeals holding that by instruct, ing the jury on the elements of child abuse in language that differed from the language used in the charging document, the trial court constructively amended the charge; and despite the defendant's failure to object, this error rose to the level of "plain error," by occurring after the close of the evidence, when the defendant could no longer alter his defense. Sometime after the court of appeals opinion in this case, we made clear that any variance between a charge and subsequent jury instruction is error only to the extent that it deprives the defendant of his constitutional right to be advised of the charges against him and have a fair and adequate opportunity to prepare a defense and be protected from further prosecution. See People v. Madden, 111 P.3d 452, 456-57 (Colo.2005). Rather than disapproving the court of appeals pre-Madden rationale, and addressing the defendant's claim of constructive amendment in terms of our holding in Madden, however, the majority seizes upon a minor instructional deviation from the words of the statute, never objected to or considered significant by any party, and hopelessly confuses the question of notice with the history and definition of the crime of child abuse itself.
*1080On the one hand, the majority appears to hold that instructing with the words, "may have endangered," constituted "an erroneous and prejudicial constructive amendment to the charge." See maj. op. at 1079. On the other, it holds that by using these words the instruction "deviated materially from the current statute and permitted the jury to convict Weinreich of a non-existent offense." See maj. op. at 1079. Confused as this commingling of rationales may be, it at least seems clear that the majority's holding-whether based on lack of notice or lack of a crime at all-depends on its understanding of this court's construction of similar words, as they appeared in former, and substantially different, statutory schemes.
Although of questionable significance, the majority notes our holding in People v. Schwartz, 678 P.2d 1000 (Colo.1984), limiting the applicability of the "may endanger" provision of the 1980 statute to those instances of child abuse in which no injury or death actually occurred. This narrowing construction responded to an equal protection challenge to the legislature's juxtaposition of "may endanger" and "endanger" in separate, and disparately punished, proscriptive provisions of the then-existing statute. It could have significance only for the peculiar organization of that statutory scheme; and the legislature clearly abandoned both terms immediately thereafter, not for any inherent ambiguity in or distinction between the terms themselves, but to avoid confusion that might result from our strained construction in Schwartz. Even the majority does not appear to suggest that the phrase, "may have endangered," could have been understood by this jury to exclude cases of death or injury, which would, of course, have resulted in an acquittal.
Of somewhat clearer relevance to its rationale, the majority also relies on our holding in People v. Hoehl, 193 Colo. 557, 568 P.2d 484 (1977). In order to prevent conviction for any possibility of endangerment, however slim, we there construed the word, "may," modifying "endanger" in the 1971 version of the statute, to mean a "reasonable probability" of endangerment to the child's life or health. See id. at 560, 568 P.2d at 486. Notwithstanding the majority's suggestion to the contrary, however, we clearly did not disapprove the "may endanger" language of the statute. See maj. op. at 1075. Addressing a constitutional vagueness challenge, where the trial court refused a request to instruct on the meaning of "may endanger," despite the defendant's claim that he merely suggested that the child-victim warm her hands over a radiator, we held only that the defendant was entitled to an instruction limiting the statutory language to a reasonable probability of endangerment.
More importantly, however, despite the "may have endangered" language of the instruction in this case, the jury was not instructed on the elements of an "obsolete" version of the statute. In addition to bringing the various descriptions of conduct constituting child abuse together in a single definition and subsection of the statute, and replacing both "may endanger" and "endanger" with "poses a threat of injury," the 1985 amendments at issue here expressly codified the "reasonable probability" limitation of Hoeki by predicating criminal liability on the child being "unreasonably" placed in a situation that poses a threat. Permitting a child to be placed in a situation posing a threat involving less than a "reasonable probability" of injury is clearly not unreasonable, and therefore no longer punishable as child abuse under the current statute.
By characterizing the use of the phrase, "may have endangered," as instructing on an obsolete offense, the majority ignores the fact that, in sharp contrast to the 1971 statute at issue in Hoekl, the jury in this case was instructed to find guilt only if the defendant permitted the child to be "unreasonably" placed in a situation that may have endangered her life or health. To the extent that the majority considers the General Assembly's additional requirement of unreasonable placement to inadequately codify the "reasonable probability" limitation of Hoekl, it necessarily implies that the existing statutory language suffers from the same shortcoming identified in Hoekl, and presumably entitles a defendant to the same, additional, court-fashioned limiting instruction.
Whether this is so or not, however, in no event could a finding that the defendant recklessly permitted the child to be unrea*1081sonably placed in a situation that "may have endangered" her life or health be substantially and prejudicially different from a finding that he recklessly permitted her to be unreasonably placed in a situation that "pose[d] a threat of injury" to her life or health. Both phrases communicate the same concept of risk, and both are limited as to degree of risk or likelihood of danger only by the identical requirement of reasonableness. For all intents and purposes, the phrases are synonymous.
While jury instructions that track the language of a statute will usually be proper and (as this case adequately demonstrates) may reduce later disputes over propriety and accuracy, there clearly has never existed in this jurisdiction any technical requirement for juries to be instructed in the precise language of even an elemental or definitional statute. See, eg., Leonard v. People, 149 Colo. 360, 374, 369 P.2d 54, 62 (1962) (noting that statutory language itself may tend to create ambiguities or confusion in minds of jurors). Nuance in instructing juries is notoriously tactical, and a failure to request specific statutory language makes it far more likely that a defendant did not consider a deviation particularly meaningful or disadvantageous.
In order to rise to the level of plain error, an instruction accepted without objection must therefore not only fail to properly communicate the law to the jury, but its failure to do so must also be obvious and have a substantial impact on the fairness of the trial. Although I do not believe the "may have endangered" language of the instruction failed (in any respect, much less one having a substantial impact on the fairness of the trial) to properly convey the statutory definition of child abuse to the jury, the majority's resort to 20 and 30-year-old interpretations of previous, and vastly different, versions of the statute, responding at the time to wholly dissimilar legal challenges, to my mind should alone be sufficient to demonstrate that any deficiency in the instruction (should one exist) was not one that should have been readily apparent to a trial judge, without having it brought to his attention by an interested party.
Finally, unlike the majority I consider it clear that a defendant charged with the statutory offense of child abuse, by recklessly causing an injury to the life or health of his child, who was indisputably killed when she was thrown from her unbelted position in his lap while he was driving, has been put on notice that he may have to defend against the more specific allegation of recklessly permitting her to be unreasonably placed in a situation that may have endangered her life or health. I would therefore find that the court of appeals not only applied an erroneous legal standard but also reached the wrong result.
I respectfully dissent.
I am authorized to state that Justice KOURLIS and Justice RICE join in this dissent.