People v. Margerum , 2018 COA 52 ( 2018 )

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
April 19, 2018
2018COA52
No. 14CA1392, People v. Margerum — Constitutional Law —
Sixth Amendment — Confrontation Clause; Criminal Law —
Trials — Right of Accused to Confront Witnesses; Evidence —
Witnesses — Scope of Cross-Examination; Crimes — Assault —
Menacing
A division of the court of appeals considers whether the fact
that a witness is on probation at the time of trial, without more,
implicates a defendant’s constitutional right to cross-examine the
witness on potential motive, bias, or prejudice. The division
concludes that a witness’s probationary status alone does not
implicate a defendant’s constitutional right to cross-examine
witnesses. Rather, the facts of the case must show that a logical
connection exists between the probationary status and the
witness’s motive to testify in favor of one party.
The division further addresses a novel question in Colorado:
Can the physical conduct underlying an assault conviction be the
same single action that underlies a menacing conviction? The
division concludes that a single physical act supporting an assault
conviction, with no additional physical action or verbal threat, can
be sufficient to simultaneously support a menacing conviction.
Accordingly, the division affirms the judgment of conviction.
COLORADO COURT OF APPEALS 2018COA52
Court of Appeals No. 14CA1392
Jefferson County District Court No. 13CR1726
Honorable Tamara S. Russell, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Lance Webster Margerum,
Defendant-Appellant.
JUDGMENT AFFIRMED
Division V
Opinion by JUDGE ROMÁN
Dunn and Welling, JJ., concur
Announced April 19, 2018
Cynthia H. Coffman, Attorney General, Gabriel P. Olivares, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee
Douglas K. Wilson, Colorado State Public Defender, Meredith K. Rose, Deputy
State Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 Defendant, Lance Webster Margerum, was convicted of
unlawful sexual contact without physical force, third degree
assault, and menacing with a deadly weapon. On appeal, he
challenges the unlawful sexual contact and menacing convictions.
¶2 Defendant’s arguments raise two issues of first impression in
Colorado. First, he argues that the trial court violated his rights
under the Confrontation Clause by not allowing him to cross-
examine a witness concerning her probationary status. We
conclude that a witness’s probationary status alone does not
implicate a defendant’s constitutional right to cross-examine the
witness on potential motive, bias, or prejudice. Rather, the facts of
the case must show a logical connection between the probationary
status and the witness’s motive to testify in favor of one party.
¶3 Second, he argues that there was insufficient evidence to
support his menacing conviction because the physical conduct
underlying his assault conviction is the same single act underlying
his menacing conviction. Answering a novel question in Colorado,
we conclude that a single physical act supporting an assault
conviction, with no additional physical action or verbal threat, can
be sufficient to also support a menacing conviction.
1
¶4 Accordingly, we affirm the judgment.
I. Background
¶5 One afternoon, defendant was alone in a friend’s apartment
with the friend’s girlfriend (E.S.). Defendant followed E.S. into her
bedroom and began telling her that she could do better than her
boyfriend and that she should kiss him. E.S. rebuffed his
advances.
¶6 Defendant became angry and forced E.S. onto the bed,
climbing on top of her. He kissed her face, neck, and chest and
groped her buttocks and breasts. Then he tried to remove her
clothing. E.S. continued resisting defendant, promising him that if
he stopped, she would not tell anyone. Eventually he stopped and
let her leave the apartment.
¶7 Shortly after E.S. left, defendant texted his sister (T.M.) to
come to the apartment. He told her that he had a bag of clothes he
wanted to give her.
¶8 T.M. arrived at the apartment with her one-year-old son. Once
inside the apartment, T.M. discovered that defendant did not have
any clothes for her. Defendant immediately began acting strangely
2
and grabbed his crotch while looking directly at T.M. T.M. turned
to get her son and leave the apartment.
¶9 When T.M. turned her back on defendant, he — without
warning — grabbed her around the neck and began choking her.
T.M.’s vision became blurry and she had difficulty breathing. She
later testified that at this point she felt like she “was going to die.”
She and defendant fell onto the couch and then onto the floor.
Defendant then pinned T.M. underneath him and began groping her
body.
¶ 10 T.M. grabbed a glass candleholder and hit defendant on the
back of the head, which allowed her to escape his grasp. She then
grabbed her son and fled the apartment.
¶ 11 Based on these events, the People charged defendant with
second degree burglary, two counts of unlawful sexual contact by
physical force or physical violence, second degree assault, third
degree assault, child abuse, and menacing with a deadly weapon.
¶ 12 At trial, defendant informed the court that he intended to
impeach E.S. based on a prior event where she had used her
cousin’s ID and a forged prescription in an attempt to obtain
painkillers from a local pharmacy. E.S. pleaded guilty to
3
misdemeanor forgery in a different jurisdiction and was sentenced
to a year of probation. She was on probation at the time of
defendant’s trial.
¶ 13 The trial court ruled that the facts underlying E.S.’s conviction
were admissible but that the conviction itself and her probationary
status were inadmissible.
¶ 14 The jury acquitted defendant of four counts, but convicted him
of unlawful sexual contact without physical force as to E.S., and
third degree assault and menacing with a deadly weapon as to T.M.
II. Confrontation Clause
¶ 15 Defendant argues the trial court violated his constitutional
right to confront witnesses against him when it precluded him from
cross-examining E.S. regarding her probationary status. Because
the record contains no facts logically connecting the witness’s
probationary status with her motive to testify in defendant’s trial,
we disagree.
A. Preservation
¶ 16 As a preliminary matter, the People argue that defendant did
not preserve this claim for appellate review. We disagree.
4
¶ 17 Where a defendant raises an issue sufficiently to give the trial
court an opportunity to rule on the claim raised on appeal, we
conclude the claim is sufficiently preserved. People v. Boulden,
2016 COA 109, ¶ 5.
¶ 18 At trial, defense counsel informed the trial court that E.S. had
a misdemeanor forgery conviction that “she is currently on
probation for,” and that he intended to bring up this subject on
cross-examination. The trial court reserved ruling on this issue.
¶ 19 The trial court revisited the issue before E.S. testified. The
prosecutor argued that the conduct underlying the conviction was
inadmissible, but conceded “[t]he fact that she is testifying, and she
still is under probation; that can be the subject of some cross-
examination.” The trial court questioned the prosecutor about this
position, and the prosecutor responded “whether or not the fact
that someone has a current case pending or if they are under
supervision can be brought out in their testimony as it relates to
[bias]. . . . I think that’s what the caselaw says.”
¶ 20 Defense counsel then argued why the underlying conduct was
admissible for impeachment, without addressing the point about
probation that the prosecutor had just conceded, concluding that “I
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don’t think it’s prejudicial, especially if [the prosecutor] is saying we
can ask about the probation.”
¶ 21 The prosecutor responded and slightly altered his position,
citing People v. Melanson, 937 P.2d 826 (Colo. App. 1996), for the
proposition that probationary status in another jurisdiction is not
admissible for impeachment.
¶ 22 The trial court ruled on the issue as follows:
I don’t know of any case law at all that you can
cross-examine someone about being on
probation for a misdemeanor if it’s not within
their jurisdiction, if it doesn’t have anything to
do with the case, if it’s not to, as you indicated,
curry favor. So I’m not going to allow you to go
into that.
¶ 23 Based on this record, it is clear that defendant raised the
issue, the prosecutor responded, and the trial court issued a ruling.
Accordingly, the claim is sufficiently preserved for appellate review.
B. Applicable Law
¶ 24 The right of a criminal defendant to confront witnesses against
him or her is guaranteed by both the United States and Colorado
Constitutions. U.S. Const. amends. VI, XIV; Colo. Const. art. II, §
16. The primary interest secured by the right to confrontation is
6
the right of cross-examination. Davis v. Alaska, 415 U.S. 308, 315
(1974).
¶ 25 The scope and duration of cross-examination are controlled by
the trial court, and judges have wide latitude under the
Confrontation Clauses to impose reasonable limits on cross-
examination. Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986);
Kinney v. People, 187 P.3d 548, 559 (Colo. 2008).
¶ 26 Nonetheless, the right of confrontation requires courts to allow
broad cross-examination of a prosecution witness as to bias,
prejudice, and motivation for testifying. People v. Bowman, 669
P.2d 1369, 1375 (Colo. 1983). This is especially important when a
witness faces pending criminal charges and there is a possibility
that a promise of leniency, or even the mere hope of leniency, might
influence the witness’s testimony in the defendant’s case. Id. (citing
People v. King, 179 Colo. 94, 98, 498 P.2d 1142, 1144-45 (1972)).
¶ 27 Likewise, the need for wide latitude in cross-examination is
present when a prosecution witness is on probation and her
testimony could be prompted by fear or concern for possible
jeopardy to her probationary status. Davis, 415 U.S. at 311, 317-
18; Bowman, 669 P.2d at 1375.
7
¶ 28 To be sure, the defendant must “merely show the possibility
. . . that the witness’s testimony was being influenced.” Kinney,
187 P.3d at 560. “Even when there has not been an explicit
promise of leniency made by the prosecution, an offer of proof or
testimony by the witness articulating an expectation for leniency
has not been required.” Id. at 561.
¶ 29 The Colorado Supreme Court has clarified that the relevant
test for whether a trial court must permit cross-examination on
pending cases is “whether the particular facts of the case show that
the witness’s testimony might have been influenced by a promise
for, or simply a hope or expectation of, leniency in exchange for
favorable testimony.” Id. (emphasis added).
¶ 30 On review, we will not disturb a trial court’s ruling on the
scope and limits of cross-examination absent an abuse of
discretion. See People v. Conyac, 2014 COA 8M, ¶ 91. While the
court has discretion to limit cross-examination, it is constitutional
error to limit excessively a defendant’s cross-examination. Id. at ¶
92.
8
C. Davis v. Alaska
¶ 31 Defendant primarily relies on the seminal United States
Supreme Court case of Davis v. Alaska. He argues that in cases,
such as here, where the trial court prevents cross-examination on a
witness’s probationary status, Davis compels reversal because a
witness’s probationary status shows a potential bias or motive in
testifying. Defendant reads Davis too broadly.
¶ 32 In Davis, the defendant was charged with a burglary in which
a safe was stolen from a bar. 415 U.S. at 309. Police later
discovered the empty safe near where Richard Green lived. Id. At
the time, Green was on juvenile probation for committing two
burglaries. Id. at 311. Green identified the defendant as one of two
men he had seen and spoken to a day after the burglary, near
where the safe was found. Id. at 310.
¶ 33 At trial, the defendant wanted to show that Green was on
probation for burglary and thus had a strong motive to lie in order
to shift any suspicion away from himself, particularly given that the
safe in question was found abandoned near his home. Id. at 311.
The trial court refused to allow this evidence. Id.
9
¶ 34 On appeal, the Supreme Court held that, “[o]n these facts,” the
trial court had violated the defendant’s constitutional right to cross-
examine the witness against him for bias and motive. Id. at 318.
The Court observed that this line of questioning was allowable
because the defendant sought to develop a claim of bias based on
“Green’s vulnerable status as a probationer, as well as [on] Green’s
possible concern that he might be a suspect in the investigation.”
Id. (citation omitted).
¶ 35 In reaching this holding, the Davis Court carefully explained
the issue was not a general attack on a witness’s credibility through
evidence of a prior crime, but a “more particular attack on the
witness’ credibility . . . by means of cross-examination directed
toward revealing possible biases, prejudices, or ulterior motives of
the witness as they may relate directly to issues or personalities in
the case at hand.” Id. at 316.
¶ 36 Whether based on Green’s probationary status or his concern
that he was a potential suspect, the defendant’s allegations of
witness bias were directly related and connected “to issues or
personalities in the case at hand.” Id. The Court explained that
Green might have offered biased testimony, believing himself a
10
possible suspect, both because he had been involved in similar
crimes and because the stolen safe was found near his home. See
id. at 311. Further, the police might also have brought undue
pressure on Green to make an identification of someone — anyone
— because he was in a vulnerable relationship with the state and
feared probation revocation. Id.
¶ 37 In his concurring opinion, Justice Stewart summarized the
holding of Davis as follows:
The Court holds that, in the circumstances of
this case, the Sixth and Fourteenth
Amendments conferred the right to cross-
examine a particular prosecution witness
about his delinquency adjudication for
burglary and his status as a probationer.
Such cross-examination was necessary in this
case in order “to show the existence of possible
bias and prejudice . . . .”
Id. at 321 (Stewart, J., concurring) (emphasis added).
¶ 38 Thus, Davis is a fact-specific holding and does not establish a
general rule that a defendant may always use the probationary
status of a witness to impeach for bias or motive.
D. Colorado Cases
¶ 39 No Colorado case has squarely analyzed the issue raised by
this case.
11
¶ 40 In Kinney, our supreme court addressed when a defendant
has a right under the Confrontation Clauses to cross-examine a
witness about a pending criminal case — not a witness’s
probationary status. See 187 P.3d at 560. Further, Kinney
involved facts beyond the mere existence of pending charges, as
there was evidence that the prosecutor’s office had provided
“ongoing, significant help” to the witness on an earlier charge. Id.
at 551.
¶ 41 The closest case in Colorado is People v. Jones, 971 P.2d 243,
244 (Colo. App. 1998), overruled on other grounds by People v.
Segovia, 196 P.3d 1126 (Colo. 2008), in which a division of this
court also concluded that excluding evidence of a witness’s
probationary status did not violate the defendant’s rights under the
Confrontation Clauses.
¶ 42 However, the division in Jones reached this conclusion
without significant discussion and without the benefit of the test
announced in Kinney. More importantly, the analysis in Jones left
out a critical point. The opinion turned on the division’s
observation that “the wife would not have been implicated in any
wrongdoing that might have jeopardized her status as a
12
probationer.” 971 P.2d at 244. But the Supreme Court clearly
identified that probationary status may be “admissible to afford a
basis for an inference of undue pressure because of [the witness’s]
vulnerable status as a probationer, as well as of [the witness’s]
possible concern that he might be a suspect in the investigation.”
Davis, 415 U.S. at 318 (footnote and citation omitted) (emphasis
added).
¶ 43 Thus, the case law in Colorado does not sufficiently answer
whether a witness’s probationary status alone implicates a
defendant’s rights under the Confrontation Clauses.
E. Other Jurisdictions
¶ 44 Courts in other jurisdictions have addressed this issue.
¶ 45 Some courts have held that probationary status is not
automatically admissible to impeach a witness for bias or motive.
This position is typified by the Texas Court of Criminal Appeals’
opinion in Irby v. State, 327 S.W.3d 138 (Tex. Crim. App. 2010).
There, the majority explained that
a “vulnerable relationship” based on a
witness’s pending charges or probationary
status does not hover cloud-like in the air,
ready to rain down as impeachment evidence
upon any and all such witnesses. There must
13
be some logical connection between that
“vulnerable relationship” and the witness’s
potential motive for testifying as he does. . . .
[T]his “causal connection” or logical
relationship is a matter of simple relevance
under Rule 401. Evidence that a witness is on
probation, is facing pending charges, or has a
prior juvenile record is not relevant for
purposes of showing bias or a motive to testify
absent some plausible connection between
that fact and the witness’s testimony.
Id. at 147-49 (footnote omitted).1
¶ 46 Some jurisdictions have taken the opposite position. For
example, the Oregon Court of Appeals has held that
[e]vidence that a person is on probation and at
risk of having that probation revoked is
generally relevant to that person’s credibility
when he or she testifies for the prosecution in
a criminal case, except, perhaps, in
extraordinary circumstances . . . (for example,
if the term of probation was due to expire very
shortly after the trial).
1 Other courts have also held that when there is a logical
connection between the witness’s probationary status and the
factual basis for a potential bias, the defendant is entitled, under
Davis, to impeach that witness with that status. See, e.g., People v.
Brady, 236 P.3d 312, 325 (Cal. 2010) (The trial court did not err in
limiting the defendant’s cross-examination of a witness where
“[d]efendant made no showing that [the witness] actually had been
offered leniency or threatened with retaliation by the prosecution.
In fact, the trial prosecutor was not even aware [the witness] was on
probation until his criminal record was checked during the course
of defendant’s trial.”).
14
State v. Shelly, 157 P.3d 234, 236 (Or. Ct. App. 2007). These
jurisdictions conclude that the necessary “logical relationship stems
from the very fact that the witness is testifying for the same entity,
the State, which also supervises his probation.” Irby, 327 S.W.3d
at 161 (Holcomb, J., dissenting).2
¶ 47 We are persuaded by those authorities that hold that
probationary status is not automatically admissible to impeach a
witness for bias or motive; instead some logical connection between
the probationary status and the witness’s potential motive for
testifying is required. While we appreciate that in many cases it
may take very little to connect a witness’s probationary status to a
motive to testify, we are not convinced that probationary status is
relevant in all cases.
¶ 48 We reach this conclusion in part because Colorado courts
have weighed in on aspects of this issue. Indeed, a rule that the
2 See Scott v. State, 730 So. 2d 732, 732-33 (Fla. Dist. Ct. App.
1999) (“Such evidence has probative value to show that the witness
has motive to testify so as to please authorities who have discretion
over his status.”); State v. Bowen, 867 P.2d 1024, 1032 (Kan. 1994)
(A witness’s “status of being on probation created a relationship
with the State,” “a person on probation would be loath to do
anything that could be displeasing to the authorities,” and such a
witness “may have been eager to please the State.”).
15
mere fact of being on probation is always a basis for showing the
potential bias or interest of a witness would contrary to the fact-
specific test announced by our supreme court. Kinney, 187 P.3d at
561 (“[R]eviewing courts have examined whether the particular facts
of the case show that the witness’s testimony might have been
influenced . . . .”) (emphasis added). And it would be inconsistent
with similar cases in which our supreme court has held that
evidence an arrest or pending charge against a witness, without
more, is not admissible. Id. at 559 (citing King, 179 Colo. at 98,
498 P.2d at 1144).
¶ 49 The contrary position is also at odds with decisions by other
divisions of this court holding that trial courts did not err in limiting
cross-examination regarding a witness’s probationary status. See
Jones, 971 P.2d at 244 (There was no error because there was “no
evidence even to suggest that defendant’s wife believed her
probationary status was in jeopardy. Nor was there any basis for
such a belief.”); Melanson, 937 P.2d at 839 (concluding there was
no error “because the witness was on probation in the state of
Washington, [and] Colorado prosecutors had no authority or ability
to affect the witness’ probation status”).
16
¶ 50 Thus, we reject defendant’s position that a witness’s
probationary status is always admissible to show a witness’s
possible bias and motive to testify as inconsistent with Colorado
and United States Supreme Court precedent.
F. Application
¶ 51 E.S. was serving a one-year probation for a forgery conviction
at the time of defendant’s trial. Defendant points to no other facts
that otherwise logically connect E.S.’s probationary status with her
testimony at defendant’s trial.
¶ 52 Not only that, but the record shows that E.S. was on probation
in Broomfield County, while defendant was on trial in Jefferson
County. These counties are in two different judicial districts, with
different district attorneys and probation offices. So there is even
less of a logical connection between being on probation and a
motive to testify in this case because the jurisdictions and
government actors are different. See Melanson, 937 P.2d at 839.
¶ 53 Accordingly, we conclude the trial court did not err because
the particular facts of this case do not show that the witness’s
testimony might have been influenced by a promise for, or simply a
17
hope or expectation of, leniency in exchange for favorable
testimony. See Kinney, 187 P.3d at 561.
III. Sufficiency of the Evidence
¶ 54 Defendant also contends that there was insufficient evidence
to support his conviction for felony menacing. First, he argues the
menacing statute requires that a defendant’s statement or action
place the victim in fear before any actual injury. Second, he argues
the conduct underlying his menacing conviction cannot be the
same single act as the conduct underlying his assault conviction.
Again, we disagree.
A. Standard of Review
¶ 55 We review the sufficiency of the evidence de novo. People v.
McCoy, 2015 COA 76M, ¶ 37 (cert. granted Oct. 3, 2016). When
reviewing the evidence, we consider the evidence as a whole and in
the light most favorable to the prosecution, giving the prosecution
the benefit of every reasonable inference that can be drawn from the
evidence. People v. Shawn, 107 P.3d 1033, 1034 (Colo. App. 2004).
The evidence is sufficient if it supports “a rational conclusion that
the defendant is guilty of the crime charged beyond a reasonable
doubt.” McCoy, ¶ 37; Shawn, 107 P.3d at 1034.
18
B. Fear Before Any Injury
¶ 56 A defendant commits menacing if “by any threat or physical
action, he or she knowingly places or attempts to place another
person in fear of imminent serious bodily injury.” § 18-3-206(1),
C.R.S. 2017; Shawn, 107 P.3d at 1034. In determining whether the
defendant knowingly placed another person in fear of imminent
serious bodily injury, the proper focus is on the defendant’s intent,
not the victim’s perception or reaction. Shawn, 107 P.3d at 1035.
“The prosecution need only prove the defendant was aware that his
or her conduct was practically certain to cause fear.” Id.; People v.
Manzanares, 942 P.2d 1235, 1239 (Colo. App. 1996). The
defendant’s subjective awareness may be inferred from his conduct
and the surrounding circumstances; direct evidence need not be
presented. Manzanares, 942 P.2d at 1239.
¶ 57 Here, the prosecution argued that the jury could reasonably
conclude that by strangling T.M., defendant intended to place her in
fear of imminent bodily injury. In support of this position, the
prosecution presented testimony from T.M. that while defendant
strangled her she had trouble breathing, her vision became blurry,
and she thought she was going to die.
19
¶ 58 Defendant argues this was insufficient for a conviction
because the menacing statute requires that “the defendant’s
statement or gesture communicate a threat in a way that places the
victim in fear before she is actually injured.” Thus, he argues that
because the evidence showed he grabbed T.M. from behind without
warning and proceeded to choke her, the evidence proved “not
imminent serious bodily injury, but actual, present injury.”
¶ 59 This argument has at least two flaws. First, it has a faulty
premise. The language of the statute does not require, either
explicitly or implicitly, that the victim be placed in fear before he or
she is injured. It requires only that the defendant “by any threat or
physical action, . . . knowingly places or attempts to place another
person in fear of imminent serious bodily injury.” § 18-3-206(1). It
is therefore irrelevant whether the victim is injured before, during,
or after he or she is placed in fear of imminent serious bodily injury,
so long as the defendant’s actions place or attempt to place the
victim in such fear.
¶ 60 Second, it presumes that actual, present injury cannot be the
basis for fear of imminent serious bodily injury. The facts of this
case perfectly illustrate why this is wrong. When defendant began
20
strangling T.M., he caused her actual injury. But it was this injury
that also reasonably caused her to fear that additional serious
injury was imminent — namely, that defendant would keep choking
her until she died. Thus, considered in the light most favorable to
the prosecution, the evidence supports “a rational conclusion that
the defendant is guilty of the crime charged beyond a reasonable
doubt.” McCoy, ¶ 37.
¶ 61 Accordingly, we reject defendant’s argument that the evidence
was insufficient because it did not establish that he threatened the
victim before injuring her.
C. Violation of Multiple Statutes
¶ 62 “[A] single transaction may give rise to the violation of more
than one statute.” People v. James, 178 Colo. 401, 404, 497 P.2d
1256, 1257 (1972). “When any conduct of a defendant establishes
the commission of more than one offense, the defendant may be
prosecuted for each such offense.” § 18-1-408(1), C.R.S. 2017.
And “[i]f the same conduct is defined as criminal in different
enactments or in different sections of this code, the offender may be
prosecuted under any one or all of the sections or enactments,”
subject to certain limitations not relevant here. § 18-1-408(7). It is
21
up to the prosecution to determine which crimes to charge when a
person’s conduct arguably violates more than one statute. James,
178 Colo. at 404, 497 P.2d at 1258; see also People v. Smith, 938
P.2d 111, 115 (Colo. 1997) (“Ordinarily, a prosecutor has discretion
to charge any applicable offense.”).
¶ 63 Defendant argues the conduct underlying his menacing
conviction cannot be the same single act as the conduct underlying
his assault conviction. But he presents no basis to depart from the
law establishing that a person can commit two crimes with one act.
He does not argue that menacing is a lesser included offense, and
our case law makes clear that it is not. See, e.g., People v.
Truesdale, 804 P.2d 287, 289 (Colo. App. 1990) (“[F]elony menacing
is not a lesser included offense of second degree assault.”). Nor has
defendant provided us with any case law establishing the
proposition that a single act constituting assault cannot, in and of
itself, also prove menacing.
¶ 64 Defendant is correct that in prior published cases in which
Colorado courts have affirmed convictions for both menacing and
assault convictions, the defendant committed two distinct acts: one
that knowingly placed or attempted to place the victim in fear of
22
injury, and one that caused actual injury to the victim. See People
v. Williams, 827 P.2d 612, 614-15 (Colo. App. 1992) (deciding there
was sufficient evidence to sustain menacing and assault convictions
where the defendant placed a knife at the throat of one victim
stating, “If you move, I’ll kill you,” and also kicked and stabbed
another victim); Truesdale, 804 P.2d at 288-89 (holding there was
sufficient evidence to sustain menacing and assault convictions
where the defendant confronted the witness with a gun, saying, “I’m
gonna blow your fucking brains out,” and injured the victim’s hand
when it was pushed against the cocked hammer of the gun).
¶ 65 But simply because these cases upheld convictions when the
defendant committed two separate acts does not support the rule
that defendant advocates for here. Indeed, nothing in these cases
suggest such a rule. And such a rule would be contrary to the
established law that the same conduct can subject a defendant to
criminal liability under multiple statutes.
¶ 66 Nor are we convinced by defendant’s argument that if we hold
that the single act constituting the assault, with no additional
physical action or verbal threat, can be sufficient to show an intent
23
to cause fear, then every instance of assault would necessarily
include menacing.
¶ 67 Indeed, the cases cited by defendant support the opposite
conclusion: “the fact that a defendant intentionally caused or
attempted to cause bodily injury to an intended victim does not
necessarily compel the conclusion that the defendant also knowingly
placed the victim in fear of serious bodily injury.” Truesdale, 804
P.2d at 288-89 (emphasis added).
¶ 68 Further, contrary to defendant’s position, all defendants in
assault cases will not necessarily face criminal liability for
menacing simply because the victim is afraid during an assault,
because the proper focus is on the defendant’s intent, not the
victim’s perception or reaction. Shawn, 107 P.3d at 1035.
¶ 69 Accordingly, we reject defendant’s contention that there was
insufficient evidence to convict him of felony menacing because the
same physical act underlies his assault conviction.
IV. Conclusion
¶ 70 The judgment is affirmed.
JUDGE DUNN and JUDGE WELLING concur.
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