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People v. Margerum

Court of Appeals of Colorado, Fifth Division

April 19, 2018

The People of the State of Colorado, Plaintiff-Appellee,
v.
Lance Webster Margerum, Defendant-Appellant.

          Jefferson County District Court No. 13CR1726 Honorable Tamara S. Russell, Judge

          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

          OPINION

          ROMÁN JUDGE

         ¶ 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.

         ¶ 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 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 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.

         ¶ 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 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 ...


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