2019 COA 23
Colo. Ct. App.2019Background
- During a traffic stop in Colorado Springs, Denhartog was pulled over for speeding; a motorcycle officer parked about 12 feet behind his Jeep.
- As the officer prepared to dismount, Denhartog reversed his Jeep rapidly, striking the officer’s motorcycle; the officer fell and suffered minor injuries.
- Denhartog fled, broke into an unoccupied apartment, damaged property, burned contraband, and was later arrested after a standoff.
- A jury convicted Denhartog of, inter alia, first‑degree assault of a peace officer (charging he “threatened” the officer with a deadly weapon), two counts of second‑degree assault, vehicular eluding, trespass, and burglary.
- On appeal Denhartog challenged (1) sufficiency of the evidence for first‑degree assault (the meaning of “threaten”), (2) admission of prior‑bad‑act (CRE 404(b)) evidence, (3) prosecutorial misconduct in closing, and (4) merger and sentencing issues for assault and trespass/burglary convictions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence for first‑degree assault (meaning of “threaten”) | People: “Threaten” includes any act that places officer at risk (hitting the motorcycle suffices). | Denhartog: “Threaten” requires an expression of intent; reversing into the bike without warning is not a threat. | Reversed first‑degree assault conviction: “threaten” means an expression (statement or declaration) of purpose/intent to cause harm; the mere act of reversing into the officer is insufficient. |
| Admission of prior bad act under CRE 404(b) | People: Prior incident showing Denhartog rammed a police car and assaulted an officer is relevant to intent and absence of mistake. | Denhartog: Prior act is unduly prejudicial and only shows propensity; too dissimilar to be probative. | Affirmed admission: prior act was sufficiently similar and probative to rebut accident defense; trial court did not abuse discretion. |
| Prosecutorial misconduct in closing argument | People: Closing comments were fair response to defense and reasonable inferences from the evidence. | Denhartog: Prosecutor denigrated defense, referred to excluded statements, appealed to sympathy, and misstated testimony. | No reversible error: isolated improper remarks did not amount to plain error given strength of evidence and jury instructions. |
| Multiplicity and lesser‑included claims at sentencing | People: Separate convictions valid as charged. | Denhartog: Two second‑degree assault convictions must merge; trespass is lesser included of burglary. | Remand to merge the two second‑degree assault convictions (vacate subsection (1)(c) conviction); trespass is not a lesser included offense of second‑degree burglary (convictions may stand). |
Key Cases Cited
- People v. Stewart, 55 P.3d 107 (Colo. 2002) (a vehicle can be a deadly weapon)
- People v. Hickman, 988 P.2d 628 (Colo. 1999) (defines “threat” as a statement of intent to cause harm)
- People v. Hines, 780 P.2d 556 (Colo. 1989) (felony menacing: “threat” requires expression of purpose or intent)
- Schott v. People, 482 P.2d 101 (Colo. 1971) (definition of “threat” in retaliation statute)
- Yusem v. People, 210 P.3d 458 (Colo. 2009) (trial court discretion in admitting other‑act evidence)
- People v. Spoto, 795 P.2d 1314 (Colo. 1990) (four‑part test for admissibility of other‑act evidence)
- People v. Rath, 44 P.3d 1033 (Colo. 2002) (similarity required for other‑act evidence varies by purpose)
- People v. McBride, 228 P.3d 216 (Colo. App. 2009) (prior‑act evidence probative to intent)