Colorado’s second-highest court ruled on Thursday that a Fremont County judge was wrong to reduce the severity of a criminal charge because she believed the district attorney’s office failed to turn over police reports that, in reality, did not exist.

Prosecutors charged Derek Eugene Ruppel in early 2025 with one felony and one misdemeanor count of drug possession. The charges stemmed from a traffic stop in which Fremont County and Custer County sheriff’s personnel investigated a potential crime by walking a drug detection dog around Ruppel’s vehicle. They allegedly found cocaine and methamphetamine.

Under the procedural rules, the DA’s office had 21 days to disclose certain evidence to the defense, with a deadline of Jan. 29. In mid-February, the defense filed a motion seeking to dismiss the case as a sanction on the prosecution. Specifically, the prosecution had not disclosed the K9 handler’s body-worn camera video, the video of “masked, unnamed officers on the scene” and the reports from multiple deputies present.

Defense attorney Tyler A. Jolly referenced the fact that, under the tenure of the prior district attorney, Linda Stanley, numerous judges found a pattern of withholding evidence in violation of the prosecution’s professional obligations.

The office of the newly elected district attorney, Jeff Lindsey, acknowledged it sent the K9 handler’s body-worn camera video to the wrong email address for defense counsel. Otherwise, the prosecution “made due and diligent request for all reports and BWC from the Fremont County Sheriff’s Office and have been informed that everything has been sent,” wrote Deputy District Attorney Wendy Owens.

At an April 18 hearing, Jolly confirmed he still had not received the written police reports. A different prosecutor, who had just been assigned to Ruppel’s prosecution that day, acknowledged he had not yet reviewed the case. Still, he believed all materials had been turned over to the defense.

District Court Judge Lauren T. Swan ruled that “there still is a pattern and practice of discovery violations,” and that the DA’s office used a “lack of due diligence to ensure that all discovery has been disclosed.” As a sanction, she downgraded the severity of Ruppel’s felony charge.

The prosecution asked Swan to reconsider multiple times, insisting there was nothing more to provide to the defense from the responding officers.

“Their work was captured on the body worn cameras footage previously released,” wrote Deputy District Attorney Curtis R. Tomme. The prosecution “cannot provide discovery that does not exist.”

Swan was unmoved.

“While the new administration at the District Attorney’s office has taken efforts to remedy this pattern, discovery violations are still ongoing and have been found in multiple courtrooms throughout the district in the last couple of months,” she wrote on May 17. “It is apparent to this Court that the Prosecution is not reviewing what evidence it has prior to the 21-day deadline.”

The prosecution appealed, arguing it had clearly communicated that the police reports did not exist and that Swan’s “arbitrary, unfair, and unreasonable refusal” to reconsider her sanction was in error.

A three-judge Court of Appeals panel agreed.

“Based on these facts in the record, there was no factual basis for the district court’s apparent assumption that additional reports existed,” wrote Judge Jerry N. Jones in the Nov. 6 opinion. “Even now on appeal, Ruppel doesn’t assert that there is any evidence that the three deputies in question authored any reports. Rather, he says only that the district attorney’s evidence doesn’t establish conclusively that such reports don’t exist.”

The panel ordered Swan to reinstate the more serious felony charge.

The case is People v. Ruppel.