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People v. Deutsch

2020 COA 114. No. 18CA2055. Criminal Extortion—Constructive Amendment—Right to Conflict-Free Counsel.

July 23, 2020

Deutsch and his ex-wife, O’Sullivan, shared custody of their daughter. They used Talking Parents, an e-messaging system that keeps a record of communications to support co-parenting, to communicate about co-parenting. O’Sullivan went to pick up her daughter from daycare and found that Deutsch had already picked her up. O’Sullivan contacted Deutsch via Talking Parents and informed him that it was not his parenting time and he needed to return their daughter to her. He refused, and O’Sullivan called the police. After a deputy arrived, O’Sullivan spoke with Deutsch on speakerphone and he threatened that he would not return their daughter until she paid him $1,988, gave him additional parenting time, and allowed their daughter to take a vacation with him. O’Sullivan said she would give him what he wanted if he would bring her daughter back. They met at a park, and Deutsch was arrested and charged with criminal extortion (threat of economic harm) and violation of a custody order. A jury found him guilty.

On appeal, Deutsch argued that the court 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. To obtain reversal, the defendant must show that defense counsel was subject to an actual conflict of interest. On the morning of trial, defense counsel moved to withdraw based on a conflict of interest, alleging that defendant had been verbally abusive and he did not feel safe working with him anymore. A conflict hearing was held before another judge, who denied the motion to withdraw. The conflict court did not advise Deutsch of his right to conflict-free counsel. While fear of a client could be an actual conflict of interest, the record here does not demonstrate whether fear actually affected the attorney’s ability to represent Deutsch, and animosity does not constitute an actual conflict. Thus, while the conflict court did not advise Deutsch of his right to conflict-free counsel, because there was no actual conflict, any deficiencies in the advisement were moot.

Deutsch also contended that the trial court violated his due process rights by permitting a constructive amendment of the criminal extortion count, and in light of the constructive amendment, the prosecution failed to prove beyond a reasonable doubt that he made a substantial threat to cause economic hardship as alleged in the complaint. A constructive amendment occurs when jury instructions change an element of the charged offense to the extent the amendment effectively subjects a defendant to the risk of conviction for an offense that was not originally charged. This violates constitutional due process rights. Here, Deutsch was charged with criminal extortion by making a substantial threat to cause economic hardship. But the elemental instruction provided to the jury listed multiple ways in which Deutsch could have substantially threatened the victim. 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.

The constructive amendment is only reversible error if it was obvious and undermined the fundamental fairness of the trial so as to cast serious doubt on the reliability of the conviction. Here, the information did not place Deutsch on notice that he would have to defend against this different element submitted to the jury, and there was 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. Thus, the trial court plainly erred. Further, the evidence is insufficient to establish that Deutsch committed criminal extortion by threatening to cause economic hardship.

Defendant also argued that the trial court violated his right to a fair trial by admitting evidence of other acts in violation of CRE 404(b). The portion of the transcript that discusses a disturbing poem that defendant wrote was not relevant to a material fact of consequence. Therefore, it was error to admit this portion of the transcript. Nevertheless, the error was not obvious or substantial. 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. 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. Further, 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, there was no error in admitting the Talking Parents communications.

The conviction for criminal extortion was vacated and the case was remanded for correction of the mittimus. The judgment was affirmed in all other respects.

Official Colorado Court of Appeals proceedings can be found at the Colorado Court of Appeals website.

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