2015 COA 45
Colo. Ct. App.2015Background
- In 2011 defendant Guerrero Lorenzo Lopez assaulted his wife, breaking her clavicle; police investigated at the hospital and found defendant outside.
- A uniformed officer spoke with defendant, who was argumentative, smelled of alcohol, moved toward the officer, said he had a knife, and lifted his shirt; a second officer frisked him and later recovered a knife.
- A jury convicted defendant of second-degree assault causing serious bodily injury, felony menacing (use of a deadly weapon), and obstructing a peace officer; defendant filed a Crim. P. 33 motion alleging ineffective assistance of counsel which was denied without a hearing.
- On appeal defendant challenged (1) sufficiency of the evidence for menacing and obstructing convictions, (2) a jury instruction defining "attempt," and (3) the denial of his Crim. P. 33 ineffective-assistance motion.
- The court reviews sufficiency de novo, jury-instruction objections for plain error if unpreserved, and a trial court’s denial of a Crim. P. 33 motion without a hearing for abuse of discretion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence for misdemeanor menacing | Evidence showed defendant acted threateningly, exposed abdomen, resisted frisk; supports conviction | Evidence insufficient to show a threat or intent to place officer in fear | Held: Evidence sufficient — officer perceived threat, defendant resisted, knife recovered; conviction upheld |
| Felony menacing ("use" of deadly weapon) — additional element | Prosecution: telling officer he had a knife and lifting shirt plus recovery of knife supports that defendant used/displayed weapon | Defendant: officer did not actually see or observe a knife being used | Held: "Use" satisfied — jury could infer knife was in waistband and displayed; conviction upheld |
| Scope of obstructing a peace officer statute — must officer be making an arrest? | Prosecution: statute covers enforcement of penal law and preservation of the peace beyond arrests; "color of official authority" in subsection (2) is limited | Defendant: statutory cross-reference to resisting-arrest definition makes obstructing apply only during arrests; jury instruction required a finding that officer decided to arrest | Held: Subsection (1)(a) covers more than arrests; subsection (2)’s cross-reference limits only the "illegal manner" defense in arrest context; conviction upheld; erroneous arrest-focused instruction was harmless |
| Standard of review for Crim. P. 33 motion alleging ineffective assistance | Prosecution: (alternative) claims of ineffective assistance belong in Crim. P. 35(c) postconviction proceedings | Defendant: argues Crim. P. 33 denial should be reviewed under Crim. P. 35(c) standards (de novo, hearing presumptively required) | Held: Claims raised in Crim. P. 33 are reviewed under Crim. P. 33 standards (abuse of discretion); failure to meet Crim. P. 33’s showing justified denial without hearing; ineffective-assistance claims rejected on the merits |
Key Cases Cited
- Dempsey v. People, 117 P.3d 800 (Colo. 2005) (standard for sufficiency review)
- People v. McIntier, 134 P.3d 467 (Colo. App. 2005) (sufficiency test quoted)
- People v. Dist. Court, 926 P.2d 567 (Colo. 1996) ("use" of a deadly weapon can include holding/displaying a weapon)
- People v. DeHerrera, 697 P.2d 734 (Colo. 1985) (limits on attempt instruction structure)
- Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (ineffective-assistance deficient performance and prejudice test)
- People v. Apodaca, 58 P.3d 1126 (Colo. App. 2002) (statutory construction; read statutes as a whole)
- People v. Esquivel-Alaniz, 985 P.2d 22 (Colo. App. 1999) (conclusory allegations do not warrant evidentiary hearing)
- People v. Reed, 932 P.2d 842 (Colo. App. 1997) (defendant’s burden to claim affirmative defenses)
- People v. Shreck, 107 P.3d 1048 (Colo. App. 2004) (harmless-error analysis)