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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
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
officers motorcycle, then fled the scene and broke into an
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.
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 Denhartogs challenges to his convictions and
Accordingly, we affirm the judgment in part, vacate it in
part, and remand for resentencing.
A motorcycle officer on patrol in Colorado Springs observed
Denhartog speeding and pulled him over. The officer parked
about twelve feet behind Denhartogs Jeep.
According to the officers 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
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 tenants belongings
and set fire to contraband he was carrying. After several
hours, police entered the apartment and arrested him.
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
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.
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
We review sufficiency of the evidence claims de novo.
People v. Perez, 2016 CO 12, ¶ 8, 367 P.3d 695. 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, 351 P.3d 553.
Denhartogs 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.
The People say that because Denhartogs 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
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, 444 P.3d 766 (declining to review for plain error),
with People v. Lacallo, 2014 COA 78, ¶¶ 6,
20, 338 P.3d 442 (applying plain error standard of review to
the defendants unpreserved claim). We are persuaded by the
majoritys reasoning in McCoy, ¶¶ 6-36, and the reasoning of
the special concurrences in Lacallo, ¶¶ 59-73 (Roman, J.,
concurring in part and dissenting in part), and People v.
Heywood, 2014 COA 99, ¶¶ 44-52, 357 P.3d 201 (Gabriel,
J., specially concurring), so we apply that reasoning here
and reject the Peoples proposed standard of review.
"Threatening" a Peace Officer Requires Proof That
Defendant Expressed a Purpose or Intent to Cause Harm
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
officers 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.
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
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, 411 P.3d 740
(defining "threat" in the context of the stalking
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
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 accordingly.").
Even if prior case law did not settle the question, we would
reject the Peoples 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, 347 P.3d 621, 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.
SeeRobinson 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