Adams County District Court No. 11CR560 Honorable John E. Popovich, Judge
Cynthia H. Coffman, Attorney General, Lisa K. Michaels, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Martinez Law, LLC, Esteban A. Martinez, Longmont, Colorado, for Defendant-Appellant
¶ 1 This appeal requires us to resolve two novel issues. First, did the crime of obstructing a peace officer, as it was defined in 2011, only apply to a defendant's conduct during an arrest? We answer this question "no." We analyze this issue in Part II.A.2.b.
¶ 2 Second, if a court denied a defendant's Crim. P. 33 motion without a hearing, and that motion raised claims of ineffective assistance of counsel, what standard of review should we apply on appellate review? We answer this question by concluding that we should apply the standards for reviewing orders denying Crim. P. 33 motions, not the standards for reviewing orders denying Crim. P. 35(c) motions. We analyze this issue in Part II.C.
¶ 3 A jury convicted defendant, Guerrero Lorenzo Lopez, of second degree assault causing serious bodily injury, menacing by the use of a deadly weapon, and obstructing a peace officer. He appeals the judgment of conviction and the trial court's order denying his Crim. P. 33 motion for a new trial. We affirm.
¶ 4 Defendant assaulted his wife in 2011 and broke her clavicle. She went to a hospital for treatment. Police officers went to the hospital to investigate the assault.
¶ 5 A uniformed officer found defendant outside the hospital. She asked to speak with him about his wife's injuries. The subsequent events, which we describe in more detail below, led to some of the charges and some of the convictions in this case.
A. Sufficiency of the Evidence
¶ 6 We review de novo whether there is sufficient evidence to support a conviction. See Dempsey v. People, 117 P.3d 800, 807 (Colo. 2005). Evidence is sufficient when "any rational trier of fact might accept the evidence, taken as a whole and in the light most favorable to the prosecution, as sufficient to support a finding of guilt beyond a reasonable doubt." People v. McIntier, 134 P.3d 467, 471 (Colo.App. 2005) (citing People v. Sprouse, 983 P.2d 771, 777 (Colo. 1999)); see also Clark v. People, 232 P.3d 1287, 1291 (Colo. 2010).
¶ 7 Defendant contends that the evidence was insufficient to establish that he (1) made a threat; (2) knowingly placed or attempted to place the victim in fear of imminent serious bodily injury; and (3) used a deadly weapon as required to establish the crime of felony menacing. See § 18-3-206(1)(a), C.R.S. 2014 (menacing is a class five felony rather than a class three misdemeanor when accomplished "[b]y the use of a deadly weapon"). We disagree.
a. The Elements of Misdemeanor Menacing
¶ 8 "A person commits the crime of [misdemeanor] 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). "[W]hat the victim saw or heard, and how the victim reacted, are relevant considerations in determining whether [the] defendant had the requisite intent to place the victim in fear." People v. Manzanares, 942 P.2d 1235, 1239 (Colo.App. 1996).
¶ 9 The first officer who talked to defendant outside the hospital - the named victim in the felony menacing count - testified that defendant responded aggressively to her inquiry about his wife's injuries. He was talking on his cellular telephone, and he told the officer that she would have to wait to talk to him until he had finished his conversation. He spoke to her angrily.
¶ 10 After defendant finished speaking on the telephone, the officer again asked him about his wife's injuries. She noticed that he smelled like he had been drinking. When she asked him if he had been drinking, he replied that, although he "just had" three drinks, he was not drunk.
¶ 11 He began to walk toward the officer. He seemed angry. She unholstered and activated her Taser. She held it in front of her, pointing it at the ground, so that she could use it quickly.
¶ 12 Defendant responded by stating that he had a knife. He lifted up his shirt, exposing the front of his abdomen. But the officer did not see a knife. Defendant dropped his shirt. The officer perceived defendant's conduct as threatening. She thought that defendant was challenging her, as if to say, "I've got a knife . . . [and] what are you going to do about it[?]"
¶ 13 The officer ordered defendant to back up against the wall and to stay still. She called for backup. She was prepared to fire the Taser at defendant if he moved toward her or if he tried to grab a knife.
¶ 14 A second police officer arrived. When the second officer began to frisk defendant for weapons by holding defendant's hands behind his back, defendant resisted. Although the second officer instructed defendant to face away from him, defendant repeatedly tried to turn around and face the officer. The second officer found a knife, but he did not clearly remember whether he had found the knife in the waistband or in the pocket of defendant's pants.
¶ 15 Viewed in the light most favorable to the prosecution, this evidence establishes both that defendant made a threat and that he placed or attempted to place the first officer in fear of imminent serious bodily injury. See id. We therefore conclude that the evidence was sufficient to support a conviction for misdemeanor menacing under section 18-3-206(1).
b. The Additional Element in Felony Menacing
¶ 16 We begin this portion of our analysis by noting that there is a distinction between two subsections of the felony menacing statute that establish alternative ways of committing the offense. The subsection that we address in this case is section 18-3-206(1)(a). The court instructed the jury about the elements of this subsection. This subsection states that misdemeanor menacing becomes a felony if the crime is committed "[b]y the use of a deadly weapon or any article used or fashioned in a manner to cause a person to reasonably believe that the article is a deadly weapon." § 18-3-206(1)(a) (emphasis added).
¶ 17 The court did not instruct the jury about the elements of the other subsection, which is section 18-3-206(1)(b). That subsection states that misdemeanor menacing becomes felony menacing if the defendant "represent[ed] verbally or otherwise that he or she [was] armed with a deadly weapon."
¶ 18 Returning to the section that applies to this case, "in defining felony menacing, the phrase 'use of a deadly weapon' is broad enough to include the act of holding a weapon in the presence of another in a manner that causes the other person to fear for his safety, even if the weapon is not pointed at the other person." People v. Dist. Court, 926 P.2d 567, 571 (Colo. 1996)(citing People v. Hines, 780 P.2d 556, 559 (Colo. 1989)). The "use" element of felony menacing is satisfied when a defendant displays a weapon, even if the victim does not see the weapon. People v. Saltray, 969 P.2d 729, 731-32 (Colo.App. 1998).
¶ 19 The first officer testified that defendant told her that he had a knife. She interpreted his statement as a threat. But she also testified that
• she did not see the knife when defendant lifted his shirt;
• defendant never held the knife;
• defendant never tried to pull out the knife;
• defendant did not reach into his pockets after putting his shirt down; and
• she first saw the knife after it was recovered by a second officer, who had searched defendant.
¶ 20 Although the second officer testified that he had found a knife in defendant's possession, he did not remember where he had found it. It could have been in defendant's pocket, as he had written in his report, or it could have been in the waistband of defendant's pants.
¶ 21 We conclude that this evidence is nonetheless sufficient to support a conclusion that defendant "used" the knife to menace the first officer. We reach this conclusion because we further conclude that, looking at the evidence as a whole and in the light most favorable to the prosecution, a "rational trier of fact" might accept it as sufficient to prove defendant's guilt beyond a reasonable doubt. See McIntier, 134 P.3d at 471.
¶ 22 Defendant told the first officer that he had a knife. She saw him raise his shirt and expose his abdomen. Although she did not see the knife, the second officer recovered one when he searched defendant. And, although there is contradictory evidence in the record, the second officer ...