Paso County District Court No. 15CR1196 Honorable David S.
J. Weiser, Attorney General, Jillian J. Price, Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellant
A. Ring, Colorado State Public Defender, Jon W. Grevillius,
Deputy State Public Defender, Denver, Colorado, for
1 Defendant, Robert Leonard Denhartog, was convicted of
various felony, misdemeanor, and traffic offenses after he
suddenly reversed his vehicle during a traffic stop, striking
a patrol officer's motorcycle, then fled the scene and
broke into an unoccupied apartment.
2 On appeal, he contends that the evidence was insufficient
to support his conviction for first degree assault of a peace
officer and that the court erred by admitting prior bad act
evidence and by allowing prosecutorial misconduct in closing
argument. He also argues that various convictions must merge
and that certain sentences must run concurrently.
3 We agree that the evidence did not establish that Denhartog
threatened the patrol officer with a deadly weapon and we
therefore vacate his conviction and sentence for first degree
assault. We also agree, as do the People, that the second
degree assault convictions must be merged. But we otherwise
reject Denhartog's challenges to his convictions and
4 Accordingly, we affirm the judgment in part, vacate it in
part, and remand for resentencing.
5 A motorcycle officer on patrol in Colorado Springs observed
Denhartog speeding and pulled him over. The officer parked
about twelve feet behind Denhartog's Jeep.
6 According to the officer's testimony at trial, as he
looked down to adjust his kickstand and prepared to dismount
from his bike, Denhartog suddenly reversed the Jeep and drove
"extremely fast" into the motorcycle, pushing the
bike backwards and rendering it inoperable. The officer did
not see the Jeep coming toward him; he realized that the Jeep
was reversing only "as it hit [him]." The impact
caused the officer to fall and, as a result, he sustained
7 Denhartog left the scene and drove to a nearby apartment
complex where he broke into an unoccupied apartment. The
prosecution presented evidence that, once inside, Denhartog
caused damage to the apartment and the tenant's
belongings and set fire to contraband he was carrying. After
several hours, police entered the apartment and arrested him.
8 Denhartog was charged with fifteen felony, misdemeanor, and
traffic offenses. As relevant here, the jury convicted him of
first degree assault of a peace officer, two counts of second
degree assault, vehicular eluding, first degree criminal
trespass, and second degree burglary.
Sufficiency of the Evidence of First Degree Assault
9 A person commits the crime of first degree assault of a
peace officer when, with the intent to cause serious bodily
injury, he "threatens [the officer] with a deadly
weapon" while the officer is engaged in the performance
of his or her duties, and the person knows or reasonably
should know that the victim is a peace officer. §
18-3-202(1)(e), C.R.S. 2018.
10 Denhartog does not dispute that a car can be used as a
deadly weapon, see People v. Stewart, 55 P.3d 107,
117 (Colo. 2002), or that, when viewed in the light most
favorable to the prosecution, the evidence is sufficient to
support a conviction for second degree assault,
see § 18-3-203(1)(b), C.R.S. 2018 (a person
commits second degree assault when, with intent to cause
bodily injury, he causes such injury to another person by
means of a deadly weapon). But, he says, the evidence is
insufficient to prove first degree assault of a
peace officer because there was no evidence that he used the
Jeep to "threaten" the officer. We agree.
Standard of Review
11 We review sufficiency of the evidence claims de novo.
People v. Perez, 2016 CO 12, ¶ 8. We must
determine whether the evidence, when viewed as a whole and in
the light most favorable to the prosecution, is substantial
and sufficient to support a conclusion by a reasonable jury
that the defendant is guilty beyond a reasonable doubt.
People v. Campos, 2015 COA 47');">2015 COA 47, ¶ 9.
12 Denhartog's sufficiency of the evidence claim turns on
the meaning of a provision of the first degree assault
statute. The meaning of a statute is a question of law that
we review de novo. Id. at ¶ 10.
13 The People say that because Denhartog's motion for
judgment of acquittal was too general and he failed to renew
it at the close of the evidence, he did not preserve his
sufficiency of the evidence claim, and we must review that
claim for plain error.
14 Divisions of this court are split on whether to review an
unpreserved sufficiency of the evidence claim for plain
error. Compare People v. McCoy, 2015 COA 76M,
¶¶ 21, 36 (declining to review for plain error),
with People v. Lacallo, 2014 COA 78, ¶¶ 6,
20 (applying plain error standard of review to the
defendant's unpreserved claim). We are persuaded by the
majority's reasoning in McCoy, ¶¶ 6-36, and the
reasoning of the special concurrences in Lacallo,
¶¶ 59-73 (Roman, J, concur ring in part and
dissenting in part), and People v. Heywood, 2014 COA
99, ¶¶ 44-52 (Gabriel, J., specially concurring),
so we apply that reasoning here and reject the People's
proposed standard of review.
"Threatening" a Peace Officer Requires Proof That
Defendant Expressed a Purpose or Intent to Cause Harm
15 The first degree assault of a peace officer statute
criminalizes the use of a deadly weapon to threaten
a peace officer. § 18-3-202(1)(e). Denhartog argues that
to "threaten" requires some communication of an
intent to take hostile action, and the evidence showed only
that he suddenly, and without warning, backed his Jeep into
the officer's motorcycle. The People, on the other hand,
argue that to "threaten" includes not just
communication of an intent to take action but also the
commission of any act that places an officer at risk of harm.
So, they contend, Denhartog "threatened" the
officer by hitting him with the Jeep.
16 True, as the parties note, the first degree assault
statute does not define the term "threaten" or
"threat." But we are hardly writing on a blank
17 In interpreting various statutes in the criminal code, the
supreme court and divisions of this court have consistently
defined "threat" to mean "a statement" or
"declaration" of "purpose or intent to cause
injury or harm to the person, property, or rights of another,
by the commission of an unlawful act." People v.
Hickman, 988 P.2d 628, 636 (Colo. 1999) (quoting
People v. Hines, 780 P.2d 556, 559 (Colo. 1989), and
Schott v. People, 174 Colo. 15, 18, 482 P.2d 101,
102 (1971) (defining "threat" as used in the
retaliation against a witness statute)); see also People
v. Chase, 2013 COA 27, ¶ 69 (defining
"threat" in the context of the stalking statute).
18 Nearly thirty years ago, in Hines, the supreme
court defined "threat" in the context of the felony
menacing statute. 780 P.2d at 558-59. We find Hines
particularly instructive because the felony menacing statute
proscribes, in part, the same conduct proscribed by the first
degree assault of a peace officer statute - using a deadly
weapon to threaten another person. See §
18-3-206(1)(a), C.R.S. 2018 (a person commits felony menacing
if, by any threat or physical action, and with the use of a
deadly weapon, he knowingly places or attempts to place
another person in fear of imminent serious bodily injury).
And in Hines, the supreme court held that the act of
threatening another person requires "a statement of
purpose or intent to cause injury or harm . . . ." 780
P.2d at 559.
19 We discern no basis to apply a different definition of
"threaten" to the same conduct described in the
first degree assault statute, and the People do not suggest
one. To the contrary, Hickman makes clear that we
should apply the definition of threat provided by the felony
menacing case law to other provisions of the criminal code,
as the supreme court did in that case. 988 P.2d at 636;
see also § 2-4-101, C.R.S. 2018 (In
interpreting a statute, "[w]ords or phrases that have
acquired a . . . particular meaning, whether by legislative
definition or otherwise, shall be construed
20 Even if prior case law did not settle the question, we
would reject the People's proposed definition of
"threat," which includes any action that puts a
peace officer at risk of harm, because it is irreconcilable
with the plain language of the statute. As a matter of basic
statutory interpretation, we construe statutes as written,
without adding words or phrases, People v. Diaz,
2015 CO 28, ¶ 12, as we presume the legislature
"meant what it clearly said," State v.
Nieto, 993 P.2d 493, 500 (Colo. 2000). In our view, if
the legislature had intended section 18-3-202(1)(e) to
prohibit any conduct that places a peace officer at risk of
harm, it would have said so. See Diaz, ¶ 18. It
surely knew how to convey that concept - section
18-3-202(1)(c), the preceding statutory provision, makes it
unlawful for a person to engage in conduct "which
creates a grave risk of death to another person" and
results in serious bodily injury. We must assume that, by
using different language in subsection (1)(e), the
legislature intended to proscribe different conduct. See
Robinson v. Colo. State Lottery Div., 179 P.3d 998, 1009
(Colo. 2008) ("[T]he use of different terms signals an
intent on the part of the General Assembly to afford those
terms different meanings."); see also People v.
Delgado-Elizarras, 131 P.3d 1110, 1113 (Colo.App. 2005)
(distinguishing between the crime of reckless endangerment -
which requires proof that the defendant engaged in conduct
that created a substantial risk of serious bodily injury -
and the crime of first degree assault of a peace officer -
which requires proof that the defendant threatened a peace
officer with a deadly weapon and intended serious bodily
21 We find unpersuasive the People's argument that only
by reading the statutory provision to reach any act that puts
an officer at risk of harm can we implement the
legislature's intent to criminalize "all manner of
threats" made against police officers. By its terms,
section 18-3-202(1)(e) criminalizes all threats involving a
deadly weapon made against a police officer.
22 Likewise, we do not share the People's concern that
adopting a definition of "threat" endorsed by the
supreme court since 1971, see Schott, 174 Colo. at
18, 482 P.2d at 102, will lead to absurd results. According
to the People, requiring proof of an expression of intent to
do harm would allow a defendant to escape liability under
section 18-3-202(1)(e) so long as the officer did not
perceive the threat. But the sufficiency of proof of
"threatening" conduct has never turned on
"what the victim saw or heard during the course of [the
criminal] incident." People v. Shawn, 107 P.3d
1033, 1035 (Colo.App. 2004) (quoting People v.
Saltray, 969 P.2d 729, 732 (Colo.App. 1998))