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
Douglas K. Wilson, Colorado State Public Defender, Meredith
K. Rose, Deputy State Public Defender, Denver, Colorado, for
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
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
4 Accordingly, we affirm the judgment.
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
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.
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
16 As a preliminary matter, the People argue that defendant
did not preserve this claim for appellate review. We
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
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
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 ...