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 November 15, 2018

Nos. 15CA0342 & 15CA0531 Peo in Interest of A.C.E-D. — Juvenile Court — Delinquency — Competency to Proceed

A division of the court of appeals holds that the

then-applicable competency statute for juveniles, section

19-2-1301(2), C.R.S. 2015, is neither facially unconstitutional nor

unconstitutional as applied because it incorporated the definition of

“incompetent to proceed” for adults in criminal proceedings set out

in section 16-8.5-101(11), C.R.S. 2015. COLORADO COURT OF APPEALS

Court of Appeals Nos. 15CA0342 & 15CA0531 Jefferson County District Court Nos. 13JD285 & 13JD424 Honorable Ann Gail Meinster, Judge

The People of the State of Colorado,

Petitioner-Appellee,

In the Interest of A.C.E-D.,

Juvenile-Appellant.

JUDGMENT AFFIRMED

Division III Opinion by JUDGE WEBB Harris and Welling, JJ., concur

Announced November 15, 2018

Cynthia H. Coffman, Attorney General, Megan C. Rasband, Assistant Attorney General, Denver, Colorado, for Petitioner-Appellee

Law Office of Diana M. Richett, Diana M. Richett, Lakewood, Colorado, for Juvenile-Appellant ¶1 Is the previous iteration of the competency statute for

juveniles, section 19-2-1301(2), C.R.S. 2015, facially

unconstitutional or unconstitutional as applied because it

incorporated the definition of “incompetent to proceed” for adults in

criminal proceedings set out in section 16-8.5-101(11), C.R.S.

2015? The juvenile, A.C.E-D., raised this novel question in seeking

dismissal of the misdemeanor theft and harassment charges

against him, asserting these statutes did not allow the court to

consider A.C.E-D.’s age and maturity. The trial court rejected his

constitutional arguments, found him competent to proceed, and

convicted him of both charges, resulting in his adjudication and

sentencing.

¶2 On appeal, A.C.E-D. challenges the adjudication on the same

constitutional grounds. Alternatively, he asserts that the juvenile

court abused its discretion in finding him competent. He also

asserts evidentiary error in authenticating Facebook messages that

supposedly constituted harassment and a one-year discrepancy

between the dates of those messages as charged in the amended

petition and as proven. The Attorney General concedes

preservation of the constitutional and evidentiary contentions.

1 ¶3 We affirm.

I. Background

¶4 Following a complaint of shoplifting, police officers contacted

A.C.E-D. He confessed, led them to the merchandise, and was

charged with misdemeanor theft. In a separate case, A.C.E-D. was

charged with misdemeanor harassment based on Facebook

messages sent to his ex-girlfriend.

¶5 In both cases, A.C.E-D. pleaded guilty. But before sentencing,

he moved to determine competency and later moved to withdraw his

guilty pleas. Without addressing the pleas, the trial court ordered a

competency evaluation. A psychologist evaluated A.C.E-D. and

recorded his findings in a report. After receiving the psychologist’s

report, the court made a preliminary finding of competency. Then

A.C.E-D. requested a competency hearing.

¶6 Before that hearing was held, A.C.E-D. moved to dismiss the

charges based on a facial constitutional challenge to the juvenile

competency statute. The court denied the facial challenge. At the

competency hearing, the court also rejected an as-applied challenge

and found A.C.E-D. competent to proceed based on the

psychologist’s testimony and his report.

2 ¶7 Still, the court allowed A.C.E-D. to withdraw his guilty pleas

and conducted a bench trial. The court found A.C.E-D. guilty of the

charges and adjudicated him a juvenile delinquent.

II. The Juvenile Competency Statute Is Constitutional

A. Standard of Review

¶8 Constitutional challenges are reviewed de novo. Coffman v.

Williamson,

. Because a statute is presumed

constitutional, the party challenging it must prove

unconstitutionality beyond a reasonable doubt. Anderson v. Colo.

Dep’t of Pers.,

(Colo. 1988). A successful facial

challenge must show that “the law is unconstitutional in all its

applications.” Dallman v. Ritter,

(Colo. 2010)

(quoting United States v. Salerno,

(1987)).

¶9 An as-applied constitutional challenge succeeds if the statute

is unconstitutional “under the circumstances in which the [plaintiff]

has acted or proposes to act.” Developmental Pathways v. Ritter,

(Colo. 2008) (quoting Sanger v. Dennis,

(Colo. App. 2006)). Unlike a successful challenge to facial

validity, the result of “holding a statute unconstitutional as applied

3 is to prevent its future application in a similar context, but not to

render it utterly inoperative.”

(quoting Sanger,

).

B. Law

¶ 10 Under the Children’s Code, a juvenile “shall not be tried or

sentenced if the juvenile is incompetent to proceed, as defined in

section 16-8.5-101(11), C.R.S. . . . .” § 19-2-1301(2). Under that

statute,

“[i]ncompetent to proceed” means that, as a result of a mental disability or developmental disability, the defendant does not have sufficient present ability to consult with the defendant’s lawyer with a reasonable degree of rational understanding in order to assist in the defense, or that, as a result of a mental disability or developmental disability, the defendant does not have a rational and factual understanding of the criminal proceedings.

§ 16-8.5-101(11).

¶ 11 The party asserting the juvenile’s incompetence bears the

burden of submitting evidence, and bears the burden of persuasion

by a preponderance of the evidence. § 19-2-1302(2).

4 C. Application

1. Facial Challenge

¶ 12 A.C.E-D. makes three arguments why section 19-2-1301(2) is

facially invalid: using the adult incompetency standard for juveniles

violates their right to due process; the statute’s requirement limiting

juvenile incompetency to a finding of a mental or developmental

disability is inconsistent with the test in Dusky v. United States,

(1960); and the statute violates due process because

it places the burdens of submitting evidence and persuasion on

juveniles. We address, and reject, each argument in turn.

¶ 13 A.C.E-D. first argues that because the United States

Constitution offers greater protections to juveniles in some

circumstances, an incompetency standard that applies equally to

both juveniles and adults is unconstitutional. But A.C.E-D. does

not cite, nor are we aware of, any Supreme Court or Colorado

authority requiring different competency standards for juveniles.

¶ 14 Instead, A.C.E-D. cites to Supreme Court cases applying the

Eighth Amendment to juveniles. But these cases are uninformative

because they did not address juveniles’ competency to stand trial.

Rather, they addressed the constitutionality of executing a

5 defendant for a homicide committed as a juvenile or sentencing a

juvenile to life in prison without the possibility of parole. See Miller

v. Alabama,

(2012) (mandatory sentence of life

without the possibility of parole); Roper v. Simmons,

(2005) (death penalty).

¶ 15 In both cases, the Court recognized important differences

between children and adults: children have a diminished sense of

responsibility, are more vulnerable to peer pressure, and have

greater prospects for reform. See Miller,

; Roper,

. While these differences are reasons for sparing

juveniles from the harshest of criminal punishments, they do not

address juveniles’ ability to assist their attorneys or comprehend

the meaning of an adjudication proceeding. A.C.E-D. admits as

much in his reply brief, conceding that he is not suggesting the

Eighth Amendment applies to juvenile competency evaluations.

And in any event, the trial of an incompetent defendant involves the

Due Process Clause of the Fourteenth Amendment. Pate v.

Robinson,

(1966); accord People v. Zapotocky,

(Colo. 1994). Unsurprisingly, A.C.E-D. next

argues that the statute violates the due process rights of juveniles.

6 ¶ 16 In some circumstances, especially police interrogations and

the waiver of certain rights, courts have considered youth and all its

associated circumstances when deciding due process requirements.

See, e.g., Gallegos v. Colorado,

(1962) (confessions

to police); Haley v. Ohio,

(1948) (same); People

in Interest of M.R.J.,

(Colo. 1981) (same);

People in Interest of J.F.C.,

(Colo. App. 1982) (guilty

pleas and waiver of right to trial). But A.C.E-D. does not explain

why the factors that warrant special due process protections for

juveniles under police interrogation or when waiving certain rights

necessitate different competency standards for juveniles than for

adults. Although juveniles may be more susceptible to police

interrogation or an unwitting waiver of fundamental rights because

of their age, inexperience, and intelligence, these factors do not

necessarily show incapacity to assist counsel or to understand the

nature of a juvenile adjudication. Indeed, the United States

Supreme Court has held that juvenile adjudications do not need to

conform with the due process requirements of a criminal trial. In re

Application of Gault,

(1967). A juvenile adjudication,

7 instead, requires “fundamental fairness.” McKeiver v. Pennsylvania,

(1971).

¶ 17 Colorado and other jurisdictions recognize that juveniles have

a fundamental right not to be tried while incompetent. People in

Interest of W.P.,

; accord Matter of W.A.F.,

, 1267 (D.C. 1990); In re K.G.,

(Ind.

2004). And some states have gone further to consider factors

unique to juveniles when making a competency determination. See

In re Carey,

(Mich. Ct. App. 2000); accord

In re J.M.,

(Vt. 2001). But both Carey and J.M.

involved states that had no statutory juvenile competency test and

neither court held that due process requires a juvenile-specific test.

See Carey,

; In re J.M.,

.

A.C.E-D. cites no authority, nor are we aware of any, holding that

due process requires a different competency test for juveniles.

¶ 18 In sum, A.C.E-D. argues that because the Constitution treats

juveniles differently from adults in some other circumstances, then

it must do so as to competency. But a juvenile adjudication need

only be fundamentally fair. Merely showing that “youth matters”

and that “children are fundamentally different than adults” is not

8 enough to show that using the same competency test for both

juveniles and adults is fundamentally unfair. Thus, we reject

A.C.E-D.’s argument.

¶ 19 A.C.E-D. next argues that section 19-2-1301(2) violates the

Dusky standard. There, the Supreme Court held that, to be

competent to stand trial, a defendant must have “sufficient present

ability to consult with his lawyer with a reasonable degree of

rational understanding,” and must have “a rational as well as

factual understanding of the proceedings against him.”

(1960) (citation omitted).

¶ 20 A.C.E-D. maintains that, based on the cross-reference to

section 16-8.5-101(11), section 19-2-1301(2) is unconstitutional

because it burdens the Dusky standard by also requiring a finding

of either a mental or developmental disability for juvenile

incompetency. Thus, A.C.E-D. continues, the statute would

preclude a finding of incompetence for a juvenile who, despite not

having a mental or developmental disability, is nevertheless

incompetent under Dusky because of factors such as his age,

cognitive ability, and cognitive development.

9 ¶ 21 But to show facial invalidity, A.C.E-D. must show that the

statute is unconstitutional in all its applications. Dallman,

. So, just because the statute could allow a court to find

some juveniles competent who would be incompetent under the

two-part Dusky standard — for lack of a mental or developmental

disability — that does not show facial invalidity. This is because

the statute would also allow a court to find a juvenile having a

mental or developmental disability incompetent to proceed under

the two-part Dusky test. In other words, a court could apply the

statute without running afoul of the Dusky test.

And because

the statute could be applied constitutionally, A.C.E-D.’s facial

invalidity argument falls short.

¶ 22 Not easily deterred, A.C.E-D. points to some states holding

that Dusky does not require a juvenile to have a mental or

developmental disability to be incompetent. But these holdings

were not on constitutional grounds. Rather, the cases held that

existing juvenile competency statutes in those states did not require

a finding of mental or developmental disability for a court to declare

a juvenile incompetent. See, e.g., In re Hyrum H.,

(Ariz. Ct. App. 2006) (Arizona’s juvenile incompetency

10 definition does not require a finding of mental disease, defect, or

disability); Timothy J. v. Superior Court,

(Cal. Ct. App. 2007) (California’s juvenile incompetency statute does

not require that the minor have a mental disorder or developmental

disability before finding that he is incompetent to stand trial).

¶ 23 Because Colorado’s statute requires a finding of mental or

developmental disability, decisions in other states that have

adopted a more holistic approach to juvenile competency do not

suggest that our approach is unconstitutional. Again, A.C.E-D.

seems to admit as much in his reply brief, where he says that he is

asking “for acknowledgement of a growing body of law that

emphasizes that ‘youth matters’ and that ‘children are

constitutionally different than adults.’” But A.C.E-D. makes a

public policy argument better presented to the General Assembly.

State Farm Mut. Auto. Ins. Co. v. Fisher,

.1

¶ 24 Finally, A.C.E-D. argues that section 19-2-1301(2) violates due

process because it places the burden of submitting evidence, as well

as the burden of persuasion, on juveniles. Like his due process

1Indeed, by adopting section 19-2-103(9.5), C.R.S. 2018, the General Assembly has addressed A.C.E-D.’s concerns.

11 argument above, A.C.E-D. asserts that because the Constitution

grants certain protections to juveniles but not to adults, then it

must always grant juveniles greater protections. Again, A.C.E-D.

cites no authority holding that placing the burden of evidence and

persuasion on a juvenile in a competency hearing is

unconstitutional.

¶ 25 To the contrary, other states have held that placing the burden

on juveniles does not violate due process. See In re J.K.,

(Iowa Ct. App. 2015); State v. P.E.T.,

(Wash. Ct. App. 2015). We find these cases persuasive,

especially in the absence of any contrary authority, and follow

them.2

¶ 26 In the end, because A.C.E-D. failed to show that under no set

of circumstances would the statute be constitutional, we affirm the

trial court’s finding that the statute was not facially invalid.

2 The Attorney General argues that because the statute allows the prosecution to raise the issue of a juvenile’s competency and placing the burden of evidence and persuasion on the prosecution would not violate due process, the statute is not facially invalid. This argument is unpersuasive because due process protects individuals, not the state, from “arbitrary governmental restrictions on property and liberty interests.” Watso v. Colo. Dep’t of Soc. Servs.,

(Colo. 1992).

12 2. As-Applied Challenge

¶ 27 A.C.E-D. also mounts an as-applied challenge to the statute,

arguing that the trial court’s application of the statute precluded

him from being declared incompetent because he did not prove that

he had a mental or developmental disability. To prevail, the record

would have to show that A.C.E-D. presented evidence he was

incompetent to proceed under Dusky, but the trial court still found

him competent solely because he did not have a mental or

developmental disability. See Developmental Pathways,

(challenger must show how the statute was unconstitutional

under the circumstances in which he acted). The record shows

otherwise.

¶ 28 A.C.E-D. points to evidence that he had an IQ of 74, which

indicates a borderline level of functioning, and that he scored in in

the one percentile on his Vineland assessment.3 And the

psychologist’s evaluation does declare A.C.E-D. competent because

he does not have a mental or developmental disability. Still, other

3 The psychologist who conducted the competency evaluation noted that a score of 74 could be an indication of a developmental disability.

13 information in the psychologist’s report and referenced in the trial

court’s order shows that the statute was applied constitutionally.

¶ 29 The report makes several observations indicating competency:

A.C.E-D. knew or learned the nature of the charges against him, he

knew how he could assist his attorney, and he understood the

adversarial nature of the proceedings. As well, the psychologist

observed that when A.C.E-D. was less hostile and more cooperative,

he gave better answers. The trial court found the evidence in the

report sufficient to declare A.C.E-D. competent, especially

considering A.C.E-D.’s failure to put forth his best effort in his

competency evaluation.

¶ 30 In sum, because sufficient evidence in the record supports the

trial court’s finding of competency under the Dusky standard,

A.C.E-D. has not proven beyond a reasonable doubt that the trial

court unconstitutionally applied the statute to him.

III. The Trial Court Did Not Abuse Its Discretion in Finding A.C.E-D. Competent to Proceed

A. Standard of Review

¶ 31 A.C.E-D.’s competence to proceed is a question of fact. People

v. Palmer,

(Colo. 2001), superseded by statute as

14 stated in W.P.,

. The trial court’s decision is reviewed

for an abuse of discretion. Id. at 865-66. 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,

(citation omitted).

B. Law

¶ 32 In a juvenile proceeding, if the court believes that it lacks

enough information to make a finding of competency, it shall order

a competency evaluation. § 19-2-1302(1), C.R.S. 2015. A licensed

psychiatrist or psychologist with expertise in evaluating juveniles

generally conducts the evaluation and must, at minimum, provide

an opinion as to whether the juvenile is incompetent. Id.

C. Application

¶ 33 A.C.E-D. argues that he met his burden of proof during his

competency hearing by presenting evidence of a learning disability,

low IQ, an impaired capacity to acquire and retain verbal

information, and a limited understanding of a juvenile adjudication

and the roles of the various actors in it. But as discussed in Part II

above, other evidence in the record suggests A.C.E-D. was

competent. And the psychologist who conducted his competency

15 evaluation found A.C.E-D. competent to proceed. The trial court

found the psychologist credible and that his report included

sufficient information from which to declare A.C.E-D. competent.

¶ 34 Based on this conflicting evidence, we cannot say that the trial

court was manifestly arbitrary, unreasonable, or unfair in finding

the psychologist credible and using his report to find A.C.E-D.

competent. See People v. Corichi,

(Colo. App.

2000) (trial court did not abuse its discretion in finding defendant

competent to proceed despite evidence he experienced a brief

delusional episode during trial).

IV. The Trial Court Did Not Abuse Its Discretion in Admitting the Facebook Messages

A. Additional Background

¶ 35 As of April 2013, the victim of the misdemeanor harassment

charge and A.C.E-D. had been dating. They often communicated by

messaging via Facebook. In mid-April, the victim attended the

prom with her ex-boyfriend. A week later, she received messages

from A.C.E-D.’s Facebook account (username AD) that she

perceived as threatening. These messages were the sole evidence

supporting the harassment charge.

16 ¶ 36 At trial, a detective testified that he had printed from the

victim’s account a few of the almost 1000 Facebook messages

exchanged between the victim and the AD account.

¶ 37 Then the prosecution called the victim. When she began

testifying about Facebook messages exchanged with the AD account

after the prom, A.C.E-D. objected for lack of authentication, citing

out-of-state authority. The prosecutor asked for and received

permission to develop further foundation.

¶ 38 The victim explained that she believed the messages had come

from A.C.E-D. because of “incomplete spellings,” “the way he talks,”

and private matters that would not be known to other people. She

added that she had not altered any of the messages on her account.

The trial court, noting “certain spelling patterns, modes of speaking

and pet names,” allowed the printout of the messages to be

admitted.

¶ 39 On cross-examination, the victim acknowledged having

received a message from M, a friend of A.C.E-D. or his sister, on the

AD account, although in the message M had identified herself.

Also, the victim admitted having seen A.C.E-D. lend his phone to D,

another friend, so that D could use the AD account. And she said

17 that she had not sent one of the messages shown on the print out

as having come from her Facebook account.

¶ 40 T.M., another friend of A.C.E-D., testified for the defense that

A.C.E-D. lent his phone to friends and left it lying around. T.M.

had sometimes used A.C.E-D.’s phone to access his own Facebook

account.

¶ 41 A.C.E-D. did not testify.

B. Standard of Review

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

of discretion. People v. Ibarra,

(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.” Elmarr, ¶ 20 (citation omitted).

C. Law

¶ 43 The “requirement of authentication or identification as a

condition precedent to admissibility is satisfied by evidence

sufficient to support a finding that the matter in question is what

its proponent claims.” CRE 901(a). “The burden to authenticate ‘is

not high — only a prima facie showing is required.’” People v.

Glover,

(citations omitted). Once evidence has

18 been authenticated and admitted, the fact finder determines its

weight. People v. Crespi,

(Colo. App. 2006).

¶ 44 Facebook messages are similar to emails and may be

authenticated through “testimony of a witness with knowledge that

a matter is what it is claimed to be,” or “through consideration of

distinctive characteristics shown by an examination of their

contents and substance in light of the circumstances of the case.”

See Glover, ¶ 24 (citing CRE 901(b)(4)). Authenticating Facebook

messages requires two showings: first, the party seeking admission

must show that the records were those of Facebook and, second,

that the communications recorded therein were made by the

purported party. Id. at ¶ 23.

¶ 45 As to the first step, A.C.E-D. did not raise this issue below and

does not argue it on appeal.

¶ 46 Regarding the second step, a central concern for courts is the

ease with which someone can assume the identity of another on

Facebook. Id. at ¶ 29 (citing Campbell v. State,

(Tex. Ct. App. 2012)). Thus, “several jurisdictions have

concluded that where a message is posted on a social networking

website, additional corroborating evidence of authorship is required

19 beyond confirmation that the social networking account is

registered to the party purporting to create those messages.” Id. at

¶ 30 (collecting cases). A.C.E-D. has cited several out-of-state cases

holding that trial courts abused their discretion in admitting

messages from social networking sites without additional

corroboration as to the sender. See, e.g., State v. Eleck,

(Conn. App. Ct. 2011) (messages could have been

generated by anyone with access as they did not reflect distinct

information only the purported author would know); Griffin v. State,

(Md. 2011) (identifying the date of birth of the

creator and her image on the site insufficient to authenticate a

social media page); Commonwealth v. Williams,

(Mass. 2010) (foundational testimony did not identify the

person who actually sent the message, only that it came from the

defendant’s account); Smith v. State,

(Miss.

2014) (witness did not testify as to how she knew the defendant had

sent her the messages and the information in the messages was

known to multiple people).

¶ 47 The Glover division also addressed authenticating the

authorship of Facebook messages and recognized, among other

20 things, that witness testimony about making and receiving the

Facebook messages at issue, the use of nicknames and other

unique identifiers, as well as the witness’ belief that she was never

talking to someone other than the defendant, are all relevant factors

that a trial court may consider. Glover, ¶ 32; see also People v.

Heisler,

(text messages admissible where victim

testified that pictures of text messages were a fair and accurate

representation of the texts she received, she recognized the phone

number and used it to communicate with the defendant, and she

recognized the context of the text messages as being from the

defendant).

D. Application

¶ 48 As indicated, the parties do not contest the first step. But

A.C.E-D. does assert that the prosecution did not provide sufficient

evidence to show that he wrote and sent the Facebook messages.

¶ 49 During the adjudication, the victim testified to distinct

characteristics in the Facebook messages that identified A.C.E-D.

as the likely author. The Glover division held that similar testimony

was sufficient to authenticate Facebook messages. ¶¶ 29-33.

However, unlike in Glover, A.C.E-D. presented evidence raising

21 doubt as to whether he had written the messages at issue. And he

points to several cases from other states holding that

authentication of social media messages requires more than a mere

showing that the messages came from an account in the name of

the sender and argues the prosecution failed to provide such

evidence.

¶ 50 We decline to address A.C.E-D.’s out-of-state authority

because Glover already requires additional evidence when

authenticating Facebook messages. Id. at ¶¶ 29-33. Indeed, the

division acknowledged the authentication problems inherent in

Facebook messages but affirmed their admission after noting

evidence in addition to the defendant’s name and image appearing

on the page. Id. And because the prosecution presented similar

evidence in this case, it met the heightened authentication standard

for Facebook messages. A.C.E-D.’s contrary evidence goes to

weighing the messages, Crespi,

, the very argument

he made in closing.

¶ 51 For these reasons, we conclude that the trial court did not

abuse its discretion in admitting the messages.

22 V. A.C.E-D. Waived His Right to Appeal the Trial Court’s Amendment to the Information Charging Him with Harassment

A. Additional Background

¶ 52 The initial information charged A.C.E-D. with harassment that

occurred on or about April 21, 2013. A.C.E-D. entered a guilty plea

to the harassment charge but moved to withdraw it. On October

16, 2014, the prosecution moved to amend the harassment count to

include a date range between April 21 and April 22, 2014. The

record does not explain the date discrepancy, and A.C.E-D. did not

raise it. The trial court granted the motion.

¶ 53 After A.C.E-D.’s adjudication, he moved for a new trial raising,

for the first time, the date range in the amended information. He

contended that the trial court erred in failing to dismiss the case

when all the evidence presented against him showed that the

alleged harassment took place on or between April 21 and 22, 2013,

and not on or between April 21 and 22, 2014. The trial court

denied the motion and amended the date to 2013 under Crim. P.

36.

23 ¶ 54 The Attorney General argues that A.C.E-D. waived his right to

appeal because of his delay in objecting to the date amendment.

We agree.

B. Waiver

¶ 55 Waiver is the “intentional relinquishment of a known right or

privilege.” People v. Rediger,

(citation omitted).

When a party waives a right or privilege, the waiver precludes

appellate review.

A waiver may be express or implied. Id. at

¶ 42.

¶ 56 An appellate court “presume[s] that attorneys know the

applicable rules of procedure.” Hinojos-Mendoza v. People,

(Colo. 2007). “Objections based on defects in the form of

the summons or complaint must be raised by motion before trial”

and failure to do so constitutes a waiver. People v. Dickinson,

,

(1979). This rule ensures that

litigation is “determined on the merits and not on the basis of

technical rules.”

¶ 57 An amendment is one of form if it does not add an essential

element of the offense and “the original information provided notice

such that the defendant was adequately advised of the charges

24 against him.” People v. Washam,

, ¶¶ 18, 26. As well,

an amendment to the date of the charge is one of form so long as

“the time or date of commission of the offense is not a material

element of the charged crime.” People v. James,

(Colo. App. 2001).

C. Application

¶ 58 A.C.E-D. argues that the amendment to the date is one of

substance because it charged an impossible date. He relies on

authority that “[a] crime cannot be charged in futuro and an

indictment or information that purports to do so in legal effect

charges nothing and is without efficacy.” Rowse v. Dist. Court,

,

(1972). But, this case is

inapplicable because the information was amended in October 2014

and alleged a past date range, April 21-22, 2014.

¶ 59 A.C.E-D. makes no other arguments that the amendment was

one of substance. Importantly, he does not maintain that the time

or date is a material element of his harassment charge; nor does the

statute suggest that it is. See § 18-9-111(1)(e), C.R.S. 2018 (listing

elements of harassment). Thus, we conclude that the amendment

did not add an essential element of the offense.

25 ¶ 60 The amendment at issue could also be one of substance if the

original information did not provide A.C.E-D. with adequate notice

of the charges against him. Washam, ¶ 26. A.C.E-D. does not

argue that he lacked adequate notice of the charges against him.

¶ 61 Because the amendment to the offense date did not add an

essential element to the crime or prejudice A.C.E-D.’s defense, we

hold that the amendment to the information was one of form. So,

to preserve the issue, A.C.E-D. needed to object prior to the start of

trial. Dickinson,

,

.

¶ 62 During his adjudication, A.C.E-D. defended himself on the

merits: he cross-examined witnesses, called witnesses of his own,

and challenged the evidence admitted against him. Only after he

lost on the merits did A.C.E-D. challenge his adjudication on the

inadequacy of the information. Our supreme court has rejected

such a trial strategy.

¶ 63 Therefore, A.C.E-D. waived his challenge.

IV. Conclusion

¶ 64 We affirm A.C.E-D.’s adjudication as to both the theft and the

harassment charges.

JUDGE HARRIS and JUDGE WELLING concur.

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