to the Colorado Court of Appeals Court of Appeals Case No.
Attorneys for Petitioner: Cynthia H. Coffman, Attorney
General John T. Lee, Assistant Attorney General Denver,
Attorneys for Respondent: Douglas K. Wilson, Public Defender
Joseph P. Hough, Deputy Public Defender Denver, Colorado
The People charged Gilbert Naranjo with two counts of felony
menacing for pointing a handgun from his vehicle toward the
two occupants of another vehicle during a road-rage incident.
Naranjo admitted at trial that he handled the gun during the
incident but testified that he merely moved the weapon from
the front passenger seat to the glove compartment to prevent
it from sliding onto the floor and accidentally discharging.
At the close of evidence, Naranjo tendered a jury instruction
for the lesser non-included offense of disorderly conduct,
which, in relevant part, prohibits the intentional, knowing,
or reckless display of a deadly weapon in a public place
"in a manner calculated to alarm." The trial court
refused this instruction, and the jury convicted Naranjo of
both counts of felony menacing. On appeal, the court of
appeals concluded that Naranjo was entitled to the
instruction, and it therefore reversed the judgment of
conviction and remanded the case for a new trial.
We granted the People's petition for a writ of certiorari
to review the court of appeals' conclusion that Naranjo
was entitled to an instruction on the lesser non-included
offense of disorderly conduct. Under this court's case law,
a defendant is entitled to a jury instruction on a lesser
non-included offense where there exists a rational basis in
the evidence to simultaneously acquit the defendant of the
greater charged offense and convict the defendant of the
lesser offense. Montoya v. People, 2017 CO 40,
¶ 32, 394 P.3d 676, 688. Considering the evidence
presented at trial in this case-namely, the testimony of
Naranjo and the two victims-we conclude that there was no
rational basis for the jury to simultaneously acquit Naranjo
of felony menacing and convict him of disorderly conduct.
Accordingly, we reverse the judgment of the court of appeals.
Facts and Procedural History
The People charged Gilbert Naranjo with two counts of felony
menacing in violation of section 18-3-206, C.R.S. (2017).
These charges stemmed from a road-rage incident in 2011 near
Pueblo, Colorado, during which Naranjo and another driver,
Jose Herrera, got into an altercation while merging onto a
highway. Herrera was driving with his sixteen-year-old
daughter in a pickup truck, and Naranjo was driving a smaller
car. The prosecution alleged that as the two vehicles were
traveling down the highway, Naranjo pointed a handgun from
his open window up at Herrera and his daughter and told the
two, "You don't want to fuck with me."
At trial, Herrera, his daughter, and Naranjo testified about
the incident. All three acknowledged that there had been an
altercation on the highway, but the victims' account
differed from Naranjo's.
Herrera testified that he was accelerating through a green
light onto a highway on-ramp when Naranjo passed him and cut
him off. Herrera braked to slow down and threw his hands in
the air. As the two vehicles entered the highway and
continued down the highway, Herrera tried to pass Naranjo,
but Naranjo repeatedly sped up, cut in front of Herrera, and
slowed down to force Herrera to brake. After continuing down
the highway some distance, the two vehicles eventually slowed
to below highway speed and Herrera pulled even with
Naranjo's car, with the passenger side of Herrera's
truck next to the driver side of Naranjo's car. Herrera
rolled down the passenger-side window of his truck, Naranjo
rolled down his driver-side window, and Herrera heard Naranjo
say, "You don't want to fuck with me." At the
same time, Naranjo raised a black handgun with his right hand
to about chest-height and pointed it at Herrera's
daughter in the passenger seat.
When Naranjo exited the highway, Herrera followed him and
called 911 to report the incident and Naranjo's location.
Herrera continued to follow Naranjo until police arrived and
Herrera's daughter similarly testified that Naranjo cut
in front of the truck as they were entering the highway
on-ramp, and that Herrera threw his hands into the air. On
the highway, Naranjo cut in front of the truck and slowed
down to prevent Herrera from passing in either the left or
right lane. Herrera's truck ultimately pulled into the
left lane, alongside Naranjo's car. Herrera rolled down
the truck's window, and the daughter observed Naranjo
raise a handgun to his open driver-side window, look up at
their truck, and say, "You don't want to fuck with
me." Herrera then braked hard, called 911, and continued
to follow Naranjo until police arrived.
In contrast, Naranjo testified that shortly before he
encountered Herrera's truck, he heard a clanking sound
coming from under the passenger seat of his car. He realized
that the clanking sound was his handgun sliding on the
floorboard as he made a turn. He had mistakenly left the gun
in his car after going shooting at a reservoir with his wife
and a friend the day before. Naranjo had not unloaded the gun
and was worried about it accidentally discharging, so he
picked it up and put it on the passenger seat.
Naranjo testified that he passed Herrera while accelerating
onto the highway on- ramp, but he did not think that he had
cut Herrera off. According to Naranjo, Herrera then began to
tailgate him as he accelerated to the highway speed limit and
continued down the highway. Naranjo testified that he pressed
the brakes to slow down, hoping that Herrera would pass him.
However, as he did so, the gun slid forward on the passenger
seat. To keep the gun from falling onto the floor and
accidentally discharging, Naranjo reached over, picked up the
gun, and put it in the glove compartment. Naranjo expressly
denied brandishing the gun, pointing it at anyone, or making
any threats; he instead testified that the gun was pointed
away from him on the seat and that he moved it to the glove
compartment in that same position.
Naranjo further testified that as he put the gun in the glove
box, Herrera pulled alongside him and appeared to be trying
to tell him something. Naranjo rolled down his window and
heard Herrera telling him to pull over. Naranjo did not want
to pull over on the highway, so he rolled his window up and
exited the highway. Naranjo testified he was shaken by the
incident and felt threatened, so he decided to drive to his
brother-in-law's tattoo shop to relax and "kind of
vent" about what had happened. While he was driving to
the shop, Naranjo noticed that Herrera was following him, and
two police cars stopped Naranjo shortly thereafter.
¶11 At trial, the jury was instructed on the charged
offense of felony menacing under section 18-3-206(1)(a). The
menacing instruction provided that the jury should convict
Naranjo of felony menacing if it concluded:
1. That [Naranjo, ]
2. in the State of Colorado, at or about the date and place