SUMMARY 

March 22, 2018 

2018COA38

No. 16CA0215, People v. Palmer — Criminal Procedure — 

Indictment and Information — Amendment of Information 

A division of the court of appeals considers whether Crim. P. 

7(e) authorizes a trial court to grant the prosecution’s motion to 

amend an information to add a crime of violence designation once 

trial has begun. The majority concludes that because the 

amendment required proof of an additional element and carried a 

harsher minimum and maximum sentence, the amendment 

changed the “essence of the charge” and was, therefore, substantive 

(and did not merely affect the information’s form). And because 

Crim. P. 7(e) only permits amendments as to form once trial has 

begun, the majority concludes that the trial court abused its 

discretion in granting the motion to amend once trial was 

underway. 

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. 
The special concurrence, on the other hand, concludes that 

because a crime of violence designation neither adds a new charge 

nor changes the essence of the charged offense, the amendment is 

one of form, not substance, and as such, the amendment may be 

granted during the course of trial, but only if doing so would not 

prejudice the defendant. But because the special concurrence 

concludes that the amendment was prejudicial, it reaches the same 

conclusion as the majority, albeit for a different reason. 

Finally, the division rejects the defendant’s contention that the 

trial court erred in denying her motion for a mistrial based upon a 

discovery violation that came to light during the course of trial. 

 
COLORADO COURT OF APPEALS 2018COA38

Court of Appeals No. 16CA0215 

Arapahoe County District Court No. 15CR202 

Honorable Donald W. Marshall, Judge 

The People of the State of Colorado, 

Plaintiff-Appellee, 

v. 

Danielle Palmer, 

Defendant-Appellant. 

JUDGMENT AFFIRMED IN PART, REVERSED IN PART, 

AND CASE REMANDED WITH DIRECTIONS 

Division V 

Opinion by JUDGE WELLING 

Román, J., concurs 

Dunn, J., specially concurs 

Announced March 22, 2018 

Cynthia H. Coffman, Attorney General, Patrick A. Withers, Assistant Attorney 

General, Denver, Colorado, for Plaintiff-Appellee 

Tanja Heggins, Alternate Defense Counsel, Denver, Colorado, for DefendantAppellant 
1 

¶ 1 The defendant, Danielle Palmer, was charged by information 

with first degree arson. After the trial was already underway, the 

trial court granted the prosecution’s motion to amend the 

information to add a crime of violence designation. 

¶ 2 The amended information alleged that Palmer committed first 

degree arson by means of a deadly weapon. By virtue of the 

amendment, Palmer faced a longer prison sentence if convicted. 

¶ 3 Also, during trial it came to light that the People had failed to 

disclose the reports of two fire investigators. This discovery 

violation was discovered after one of the investigators had testified 

but before the other had. Palmer moved for a mistrial. The trial 

court denied the motion, but imposed lesser sanctions. 

¶ 4 On appeal, Palmer contends that the trial court erred by 

granting the People’s motion to amend the information during the 

course of trial and by denying her motion for a mistrial. We agree 

with her first contention, but disagree with her second. With 

respect to the first issue, we conclude that the addition of the crime 

of violence designation was a substantive amendment to the 

information and, therefore, pursuant to Crim. P. 7(e), could not be 

granted after the start of trial. With respect to the second issue, we 
2 

conclude that the trial court did not abuse its discretion in 

imposing less severe sanctions than granting Palmer’s motion for a 

mistrial. Accordingly, we affirm in part, reverse in part, and 

remand for further proceedings. 

I. Background 

¶ 5 When Palmer found out that the man she had been dating was 

having sex with another woman, she set fire to a bag of his things 

outside the front door of his apartment. The fire spread from the 

bag, and soon the entire apartment complex was ablaze. As a 

result of the fire, Palmer was charged with five counts of attempted 

first degree murder and one count of first degree arson. 

¶ 6 The jury acquitted Palmer of attempted murder but convicted 

her of first degree arson and the lesser nonincluded offense of 

fourth degree arson. The jury also found that first degree arson 

was a crime of violence because Palmer used a deadly weapon — a 

lighter and lighter fluid. The trial court sentenced Palmer to sixteen 
3 

years in the custody of the Department of Corrections (DOC) for 

first degree arson as a crime of violence.1

II. Analysis 

¶ 7 Palmer raises two arguments on appeal. First, she contends 

that the trial court abused its discretion by allowing the prosecutor 

to amend the information. Second, she argues that the trial court 

should have granted her motion for a mistrial because the 

prosecution failed to timely disclose two fire investigators’ reports. 

We agree with her first contention but disagree with her second. 

A. Amendment to Information 

¶ 8 The attempted murder and first degree arson offenses were not 

originally charged as crimes of violence. The day before trial, 

however, the prosecutor moved to amend the information to 

designate each offense as a crime of violence. The trial court 

initially denied the motion. But on the first day of trial — after the 

jury had been sworn, opening statements had been delivered, and 

three witnesses had testified — the court sua sponte reversed its 

 

1 Palmer received a concurrent four-year sentence on the fourth 

degree arson conviction. 
4 

earlier ruling and allowed the prosecutor to amend the information 

to include the crime of violence designations. 

¶ 9 Subject to an exception not applicable here, to convict a 

defendant for a crime of violence, the People must allege, in a 

separate count of the information, that they are pursuing the 

charge as a crime of violence.2 § 18-1.3-406(3), C.R.S. 2017. The 

original information in this case did not include a crime of violence 

designation, so to pursue the arson as a crime of violence, the 

prosecutor needed to amend the information. 

¶ 10 Under Crim. P. 7(e), 

[t]he 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 

 

2 The prosecutor does not have to allege a crime of violence in a 

separate count of the information when the defendant is charged 

with a per se crime of violence because in that instance the statute 

referenced in the information provides sufficient notice. People v. 

Webster, 987 P.2d 836, 844 (Colo. App. 1998) (“[W]hen the charged 

offense is an offense proscribed by a statute that specifically directs 

sentencing in the aggravated range, no separate count of crime of 

violence need be charged . . . .”). First degree arson can be a per se 

crime of violence if there is an allegation that the defendant used 

explosives. § 18-4-102(3), C.R.S. 2017. But in this case there is no 

allegation that Palmer used explosives. 
5 

offense is charged and if substantial rights of 

the defendant are not prejudiced. 

(Emphasis added.) 

¶ 11 Palmer argues that the amendment to add the crime of 

violence designation was one of substance and therefore must have 

been made before trial. We agree. 

¶ 12 Crim. P. 7(e) is to be liberally construed, and we will not 

overturn a trial court’s decision to allow the prosecution to amend 

an information absent a showing of an abuse of discretion. People 

v. Butler, 224 P.3d 380, 385 (Colo. App. 2009). A trial court abuses 

its discretion when its decision is manifestly arbitrary, 

unreasonable, or unfair, or is based on a misapplication or 

misunderstanding of the law. People v. Fallis, 2017 COA 131M, ¶ 5. 

¶ 13 The resolution of Palmer’s argument requires us to interpret 

Crim. P. 7(e). We review interpretations of the rules of criminal 

procedure de novo. People v. Corson, 2016 CO 33, ¶ 44. In doing 

so, we first look at the rule’s plain language; if the language is clear 

and unambiguous, we apply the rule as written. Kazadi v. People, 

2012 CO 73, ¶ 11. 
6 

¶ 14 The language of Crim. P. 7(e) contemplates two types of 

amendments: amendments as to form and amendments as to 

substance. The language is clear that either type of amendment 

can be made prior to trial, but only amendments as to form can be 

made once trial has begun. The rule also dictates that the trial 

court may reject an amendment to the form of the information 

during trial if the proposed amendment charges an additional or 

different offense or prejudices the substantial rights of the 

defendant. 

¶ 15 Because trial was underway when the court sua sponte 

reconsidered its earlier decision and granted the People’s motion to 

amend the information, the amendment runs afoul of Crim. P. 7(e) 

unless it “(1) was one of form, (2) did not charge an additional or 

different offense, and (3) did not prejudice [the defendant’s] 

substantial rights.” People v. Washam, 2018 CO 19, ¶ 16 (citing 

Crim. P. 7(e)) (emphasis added). Thus, the first step is to 

“determine whether the amendment was one of form or substance.” 

Id. In order to determine whether a proposed amendment is a 

matter of form or substance, we evaluate the original information in 

the context of its surrounding circumstances to determine whether 
7 

it adequately advised the defendant of the charges. People v. Butler, 

929 P.2d 36, 39 (Colo. App. 1996). An amendment that charges an 

additional or different offense or changes the essence of a charge is 

one of substance. People v. Manzanares, 942 P.2d 1235, 1242 

(Colo. App. 1996). 

¶ 16 The original information charged Palmer with arson as a 

class 3 felony. See § 18-4-102(1), C.R.S. 2017. That information 

adequately advised Palmer of her need to defend against first degree 

arson, and the amended information did not charge an additional or 

different count of arson. But the amended information changed the 

essence of the arson charge in two respects. 

¶ 17 First, the amendment changed Palmer’s sentencing range so 

that a DOC sentence was mandatory and both the minimum and 

maximum terms of the incarceration were higher after the 

amendment than before. As a class 3 felony, a first degree arson 

conviction carries a presumptive sentence of four to twelve years. 

§ 18-1.3-401(1)(a)(IV), C.R.S. 2017. Had the amendment not been 

made and Palmer been convicted of first degree arson, she would 

have been eligible for probation and faced a presumptive prison 

sentence of four to twelve years. But, as discussed below, because 
8 

she was convicted of arson as a crime of violence, Palmer faced a 

mandatory prison sentence with a minimum term of ten years and 

a maximum term of thirty-two years. 

¶ 18 Once a defendant is convicted of a crime of violence, he or she 

faces a sentence of at least the midpoint, but no more than twice 

the maximum, of the presumptive range. § 18-1.3-406(1)(a). In 

addition, every crime of violence is an extraordinary risk crime. 

§ 18-1.3-401(10)(b)(XII), C.R.S. 2017. Under the extraordinary risk 

statute, the presumptive sentence for a defendant convicted of a 

class 3 felony extraordinary risk crime is four to sixteen years, 

rather than four to twelve years. § 18-1.3-401(1)(a)(V)(A), (10)(a). 

Therefore, applying the crime of violence statute to the presumptive 

range, which was extended by the extraordinary risk statute, 

Palmer’s mandatory minimum sentence is ten years, the midpoint 

of the sentencing range, and her maximum sentence is thirty-two 

years, which is twice the presumptive maximum. 

¶ 19 The increase in Palmer’s potential sentence is reminiscent of 

People v. Manyik, 2016 COA 42. In that case, the defendant faced a 

charge of aggravated robbery under subsection (1)(d) of the robbery 

statute, section 18-4-302, C.R.S. 2017. Manyik, ¶ 43. Under 
9 

subsection (1)(d), a defendant may be convicted if the robbery is 

committed with the use of an item in a manner in which the victim 

would reasonably believe it to be a deadly weapon (i.e., a simulated 

deadly weapon). Id. (citing § 18-4-302(1)(d)). After the start of trial, 

however, the court allowed the prosecution to amend the 

information to charge the defendant under subsection (1)(b), which 

requires proof that the defendant committed the robbery with the 

use of an actual deadly weapon. Id. at ¶ 44 (citing § 18-4-302(1)(b)). 

The amended charge, unlike the original one, was a per se crime of 

violence. § 18-4-302(3). This amendment was significant because a 

defendant convicted of aggravated robbery as originally charged was 

eligible for a sentence commensurate with a class 3 felony 

extraordinary risk crime. Id. But a robbery conviction under the 

amended information would mean that a trial court had to impose 

an increased sentence under the crime of violence statute. 

¶ 20 The Manyik division concluded that the trial court abused its 

discretion in granting the prosecution’s motion to amend because 

the amended charge subjected the defendant to mandatory 

sentencing that the original charge did not. Manyik, ¶ 49. 

Therefore, the division concluded the amendment was substantive. 
10 

Id. The same is true here. By virtue of the amendment, Palmer 

faced a more serious sentence than the one she believed she would 

face when trial began. 

¶ 21 The second way the amendment changed the essence of the 

first degree arson charge was that it required proof of an additional 

element — namely, the use of a deadly weapon. Before the 

amendment, Palmer was aware that the prosecutor needed to prove 

that she knowingly set fire to, burned, or caused to be burned a 

building or occupied structure of another without his consent. 

§ 18-4-102(1). After the amendment, however, the prosecutor 

needed to prove that Palmer committed the arson with a deadly 

weapon. § 18-1.3-406(2)(a)(I). The injection of this additional 

element changed what the prosecution was required to prove at 

trial. Until the motion to amend was granted, Palmer had no notice 

that she would need to defend against such an allegation. See 5 

Wayne R. LaFave, Jerold H. Israel, Nancy J. King & Orin S. Kerr, 

Criminal Procedure § 19.5(c), at 380 (4th ed. 2015) (“Amendments 

are said to be substantive if they change any ‘essential facts that 

must be proved to make the act complained of a crime.’” (quoting 

Brown v. State, 400 A.2d 1133, 1136 (Md. 1979))). Further, unlike 
11 

the situation where the prosecutor amends the information to bring 

a habitual criminal count, the amendment to the information in 

this case changed the facts that needed to be proved to the jury’s 

satisfaction at trial, and not simply facts that needed to be proved 

before sentencing.3 

¶ 22 Because the amendment changed the essence of the first 

degree arson charge, we cannot say that the original information 

adequately advised Palmer of the charges that she ultimately had to 

defend against at trial. Going into trial, she was on notice that she 

needed to defend against a charge of first degree arson, but once 

the information was amended she had to defend against a charge 

that, while similar, carried an increased penalty and included an 

additional element. Those changes were substantive changes to the 

information that needed to have been made, if at all, before trial. 

 

3 The reason that sentence enhancers, such as habitual criminal 

charges, are often categorized as amendments to form rather than 

substance is because, at the time the amendment is made, the 

defendant had notice that an enhanced sentence was possible. See 

People v. Butler, 929 P.2d 36, 39 (Colo. App. 1996) (holding that 

amendment adding habitual criminal counts changed only the form 

of the information because defendant had actual notice of that 

count prior to trial). Here, Palmer had no notice that she would 

face a more severe penalty until the amendment was made during 

trial. 
12 

¶ 23 The trial court’s decision to grant the People’s motion to 

substantively amend the information after trial began represents a 

misapplication of Crim. P. 7(e), and therefore it was an abuse of 

discretion. Accordingly, we remand the case for resentencing on 

the first degree arson conviction as a class 3 felony without a crime 

of violence designation. 

B. Prosecution’s Disclosures 

¶ 24 At trial, the prosecution intended on calling two fire 

investigators, Lieutenant R and Lieutenant S. After Lieutenant R 

testified, but before Lieutenant S did, the prosecution discovered 

and promptly disclosed two previously undisclosed reports from the 

lieutenants. Palmer moved for a mistrial based on the prosecutor’s 

lack of timely disclosure. The trial court determined that the 

prosecutor’s failure to disclose the reports was inadvertent, as 

neither witness had made the People aware of the existence of the 

reports before trial. Although the trial court denied the motion for a 

mistrial, it imposed two remedial sanctions. First, the trial court 

precluded the People from calling Lieutenant S as a witness. 

Second, the trial court ordered that Palmer could be permitted to 
13 

recall Lieutenant R so that he could be cross-examined about his 

report. Palmer, however, decided not to recall Lieutenant R. 

¶ 25 To remedy a discovery violation, the trial court should impose 

the least severe sanction that ensures compliance with the 

discovery rules and protects a defendant’s right to due process. 

People v. Acosta, 2014 COA 82, ¶ 12. Here, the trial court 

determined that precluding Lieutenant S from testifying and 

allowing further questioning of Lieutenant R would cure any 

prejudice to Palmer. When a prosecutor’s discovery violation was 

inadvertent, allowing a defendant to recall a witness can be an 

appropriate remedy. See People v. Lafferty, 9 P.3d 1132, 1136 

(Colo. App. 1999) (holding that discovery violation for failing to 

disclose entire police report was remedied by allowing the defendant 

to recall the prosecution’s witnesses). 

¶ 26 We conclude that the trial court acted within its discretion in 

fashioning its remedy for the discovery violation and we discern no 

abuse of discretion in the trial court’s denial of Palmer’s motion for 

a mistrial. 
14 

III. Cumulative Error 

¶ 27 Because we conclude that the trial court committed only one 

error, we do not address Palmer’s contention of cumulative error. 

People v. Munsey, 232 P.3d 113, 124 (Colo. App. 2009) (stating that 

reversal under cumulative error standard requires “[n]umerous” 

irregularities at trial (quoting Oaks v. People, 150 Colo. 64, 66, 371 

P.2d 443, 446 (1962))). 

IV. Conclusion 

¶ 28 Palmer’s sentence is reversed, and we remand the case to the 

trial court for resentencing. The judgment is affirmed in all other 

respects. 

JUDGE ROMÁN concurs. 

JUDGE DUNN specially concurs

 
15 

JUDGE DUNN, specially concurring. 

¶ 29 After learning her boyfriend was far from faithful, Danielle 

Palmer poured lighter fluid on a bag of his clothes and set them on 

fire outside his apartment. The fire blossomed, placing several 

residents in danger. The prosecution charged Palmer with five 

counts of attempted first degree murder and one count of first 

degree arson. 

¶ 30 The day before trial, the prosecution moved to add a violent 

crime sentence enhancer for Palmer’s use of a deadly weapon, in 

this case a lighter and lighter fluid, while committing the charged 

crimes. We know that the trial court said no, but because the 

hearing transcript is not in the record, we don’t know exactly why. 

Yet, at the end of the first day of trial, the court decided on its own 

to revisit its ruling. In response, Palmer argued the amendment 

would injure her “substantial right[s],” while the prosecution 

maintained it was simply an amendment to form because the 

sentence enhancer did “not charg[e] an additional offense.” The 

trial court “reverse[d] [its] ruling” and allowed the prosecution to 

add the sentence enhancer. 
16 

¶ 31 The majority holds that the court reversibly erred in doing so. 

In this, we all agree. I, however, don’t agree that the addition of the 

sentence enhancer either added a new charge or changed the 

essence of the charged arson. And so I can’t agree the amendment 

was one of substance under Crim. P. 7(e). 

¶ 32 The purpose of an information is to “advise the defendant of 

the nature of the charges, to enable the defendant to prepare a 

defense, and to protect the defendant from further prosecution for 

the same offense.” People v. Metcalf, 926 P.2d 133, 139 (Colo. App. 

1996); accord People v. Williams, 984 P.2d 56, 60 (Colo. 1999). A 

trial court may permit the amendment of the information as to 

“form or substance” at any time before trial. Crim. P. 7(e). Once 

the trial starts, the court may still allow the prosecution to amend 

the information, but “only if [the amendment is] one of form, not 

substance, and if it charge[s] no different offense and prejudice[s] 

no substantial rights of the defendant.” Cervantes v. People, 715 

P.2d 783, 786 (Colo. 1986); see also Crim. P. 7(e). 

¶ 33 To determine whether an amendment is one of form or 

substance, the court looks to the charge alleged in the information 

and the circumstances surrounding the case. Cervantes, 715 P.2d 
17 

at 786; see also Metcalf, 926 P.2d at 139. “An amendment that 

does not charge an additional or different offense or go to the 

essence of a charge is one of form, not substance.” People v. 

Manzanares, 942 P.2d 1235, 1242 (Colo. App. 1996). 

¶ 34 We know, of course, that a violent crime sentence enhancer “is 

not a substantive charge.” Lehnert v. People, 244 P.3d 1180, 1185 

(Colo. 2010). And it “does not create a separate substantive 

offense.” People v. Rodriguez, 914 P.2d 230, 277 (Colo. 1996); 

accord Brown v. Dist. Court, 194 Colo. 45, 47, 569 P.2d 1390, 1391 

(1977); see also People v. Martinez, 43 Colo. App. 419, 421, 608 

P.2d 359, 360 (1979) (concluding that an amendment adding a 

violent crime sentencing count does “not charge a new, different, or 

additional offense not alleged in the original complaint”). Because 

the addition of the violent crime enhancer did not charge an 

additional or different offense, it cannot be a substantive 

amendment unless it changed the essence of the charged arson.1 

See Manzanares, 942 P.2d at 1242. 

 

1 The sentence enhancer did not apply to Palmer’s fourth degree 

arson conviction. And the jury acquitted Palmer of the attempted 

murder charges. So I do not discuss those charges. 
18 

¶ 35 But I don’t see how it did. Before and after the amendment, 

Palmer faced one count of first degree arson, which required the 

prosecution to prove that she knowingly set fire to her boyfriend’s 

apartment building. § 18-4-102(1), C.R.S. 2017; see also People v. 

Welborne, 2017 COA 105, ¶ 53 (recognizing the elements of first 

degree arson). The added sentence enhancer didn’t change these 

fundamental elements. Nor did it change the facts underlying the 

charged arson, the number of victims, the prosecution’s burden of 

proof, any defenses to the arson, or the grade of the offense. Cf. 

People v. Johnson, 644 P.2d 34, 38 (Colo. App. 1980) (finding an 

amendment that altered the required mens rea was one of 

substance because it resulted in a “different and more serious 

offense”). Because the arson charge remained the same, the added 

sentence enhancer changed nothing about the essence of that 

crime. 

¶ 36 Still, for two reasons, my colleagues reach the opposite 

conclusion. First, they reason that because Palmer faced an 

increased penalty, the sentence enhancer changed the essence of 

the arson charge. But the enhanced sentence here does not change 

the essence of the crime charged. After all, the enhancement 
19 

doesn’t come into play unless and until the prosecution first proves 

the underlying crime — first degree arson. Lehnert, 244 P.3d at 

1185 (recognizing that a violent crime sentencing provision “may 

only be imposed after the defendant has been found guilty of one of 

the eligible substantive offenses”). So I fail to see how the fact that 

Palmer faced an enhanced sentence — after the underlying charge 

was proved — changed the essence of the charged arson. See Oby 

v. State, 827 So. 2d 731, 735 (Miss. Ct. App. 2002) (concluding that 

the amendment to a possession of cocaine charge changing the 

weight of cocaine possessed was one of form because it affected only 

the penalty imposed, not the “essence” of the charged offense). 

¶ 37 This leads me to People v. Manyik, 2016 COA 42. In that case, 

the prosecution initially charged the defendant with aggravated 

robbery under section 18-4-302(1)(d), C.R.S. 2017. That subsection 

required the prosecution to prove the defendant committed robbery 

while “he possesse[d] any article used or fashioned in a manner to 

lead any person who [was] present reasonably to believe it to be a 

deadly weapon or represent[ed] verbally or otherwise that he [was] 

then and there so armed.” § 18-4-302(1)(d); see Manyik, ¶ 43. But 

after the trial started, the court allowed the prosecution to amend 
20 

the information and charge the defendant under a different 

subsection of the aggravated robbery statute. Manyik, ¶ 44. This 

new subsection carried with it an increased penalty and now 

required the prosecution to prove that the defendant “by the use of 

force, threats, or intimidation with a deadly weapon knowingly put[] 

the person robbed or any other person in reasonable fear of death 

or bodily injury.” § 18-4-302(1)(b); see Manyik, ¶ 44. The 

amendment therefore changed more than the potential sentence; it 

changed an essential element of the charged crime. See Manyik, 

¶ 52; see also People v. Firm, 2014 COA 32, ¶ 10 (concluding that 

different subsections of the aggravated robbery statute proscribe 

different conduct). And, in doing so, it was a substantive 

amendment precluded under Crim. P. 7(e). The amendment in 

Manyik, therefore, is unlike the one here. 

¶ 38 My colleagues’ second reason, that the amendment “required 

proof of an additional element — namely, the use of a deadly 

weapon,” conflates the elements of the sentence enhancer with the 

elements of arson. Supra ¶ 21. The “special findings” for a violent 

crime sentence enhancer — that is, the finding that Palmer used a 

deadly weapon during the commission of the arson — “relate only to 
21 

the sentencing for the substantive offense.” Brown, 194 Colo. at 47, 

569 P.2d at 1391 (emphasis added); accord People v. Mata, 56 P.3d 

1169, 1176 (Colo. App. 2002); see also Armintrout v. People, 864 

P.2d 576, 580 (Colo. 1993) (“A defendant still may be convicted of 

the underlying offense without any proof of the sentence 

enhancer . . . .”). The deadly weapon finding thus did not create an 

additional element or affect the proof required to convict Palmer of 

first degree arson. I therefore don’t agree that the special findings 

required to enhance the sentence changed the essence of the 

charged crime. 

¶ 39 But that does not end the inquiry. An amendment to form still 

must not prejudice a defendant’s substantial rights. See Cervantes, 

715 P.2d at 786. And here the amendment did just that. The day 

after the trial court denied the prosecution’s request to add the 

sentence enhancer, Palmer presented her opening statement, 

defending on the theory that she had only intended to destroy her 

boyfriend’s clothes. Consistent with her defense, Palmer admitted 

that she “took lighter fluid . . . put that lighter fluid” on her 

boyfriend’s clothes and “lit [them] on fire.” So, she continued, while 
22 

the apartment fire “was an unintended consequence,” “she’s guilty 

of [only the charged arson].” 

¶ 40 Palmer thus admitted that she used a deadly weapon in 

setting the fire, proving the facts necessary to enhance her 

sentence. But at the time of her admission, she did not face an 

enhanced sentence that carried with it mandatory jail time. 

¶ 41 And once the court reversed itself, Palmer, of course, could not 

retreat from this position. 

¶ 42 I can’t conclude that Palmer would have so freely admitted 

these facts had the trial court allowed the amendment before trial. 

Cf. Metcalf, 926 P.2d at 140 (concluding that a form amendment did 

not prejudice the defendant when it did not “require a different 

defense strategy from the one the defendant had chosen under the 

initial information”). By allowing the amendment, her admissions 

had the added effect of relieving the prosecution from its burden of 

proving the facts necessary to enhance her sentence. See Apprendi 

v. New Jersey, 530 U.S. 466, 490 (2000) (concluding that the 

prosecution must prove to the jury beyond a reasonable doubt any 

fact that increases a defendant’s sentence beyond the sentencing 

range). 
23 

¶ 43 At the end of it all, Palmer reasonably relied on the court’s 

order denying the prosecution’s request to add the violent crime 

sentence enhancer when she crafted her opening statement. And 

by reversing course and allowing the amendment when it did, the 

trial court prejudiced Palmer’s substantial rights. 

¶ 44 So I agree with the majority that Palmer’s enhanced arson 

sentence cannot stand, but for a different reason. I otherwise agree 

with the opinion.