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
Judges: Opinion by JUDGE ROMAN, Dunn and
Welling, JJ., concur.
[¶ 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
[¶ 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
[¶ 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
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
[¶ 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
[¶ 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
[¶ 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
[¶ 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 disagree.
[¶ 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, 381 P.3d 454.
[¶ 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
[¶ 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 ...