Larimer County District Court No. 15CR1844 Honorable Daniel
J. Kaup, Judge
J. Weiser, Attorney General, Gabriel P. Olivares, Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee
M. Lijewski, Alternate Defense Counsel, Longmont, Colorado,
1 Defendant, Eric Alexus Neckel, appeals his convictions for
felony menacing and second degree criminal tampering. He
contends the trial court erred by not sua sponte correcting
alleged misstatements by the victim and the prosecutor and by
rejecting defense-tendered jury instructions. We affirm.
2 The People charged Neckel with felony menacing and second
degree criminal tampering after he threatened a process
server with a lead pipe and then jacked up the process
server's car, preventing him from leaving.
3 Neckel lives in a rural area of Larimer County. His house
is set back approximately a quarter mile from a county road.
A long U-shaped driveway circles behind the house and meets
the road at two points. Neither driveway entrance is gated,
and there is no fencing along the road. There is, however, a
small "No Trespassing" sign nailed to a telephone
pole near one entrance. Another similar sign is on the side
of a barn behind the house.
4 A process server (the victim) drove to Neckel's house
one afternoon to serve Neckel with some papers. He parked in
the driveway and knocked on the door. Hearing no immediate
response, the victim left a note with his contact information
and turned away. As the victim was walking back toward his
car, Neckel opened the door and asked the victim if he had
"ever been killed." The victim answered
"no." Neckel then asked the victim if he had
"ever been shot." The victim said "not
5 The victim tried to tell Neckel why he was there and asked
Neckel to confirm his identity. Rather than responding
directly, Neckel began berating the victim, telling him that
he had no right to be there and was trespassing, and
demanding that the victim get off his land. When the victim
asked Neckel to identify himself so that he could confirm
service of the papers, Neckel picked up a large metal pipe
and raised it over his head. The victim said, "[I]f you
do that, it's murder." When Neckel said
"it's coming on three," the victim retreated
behind his car. He then told Neckel that he was serving him
by refusal, but Neckel began circling the car with the pipe.
The victim kept the car between himself and Neckel, but after
a few circuits Neckel placed a hydraulic jack under the front
wheels of the victim's car and lifted it off the ground.
6 Both men called 911 in the midst of this slow-motion chase.
The victim reported that Neckel had threatened him with
"a three foot piece of pipe" and had put a jack
under his car, thus preventing him from leaving the property.
Neckel called 911 four times. During the first call he and
the 911 operator had the following exchange:
Neckel: He's on private property and I'm going to
neutralize the threat right now.
911 Operator: No, you can't do that.
Neckel: Would you like me to ahh, render him incompetent?
Would you like me to shoot him?
911 Operator: No, I want you to go inside and shut and lock
the door and wait for a deputy.
Neckel: That I won't do. He's in front of my house -
911 Operator: OK -
Neckel: - and he has no business.
911 Operator: OK. Are you behind on any payments? Why is he
Neckel: It matters not. . . .
operator repeatedly told Neckel to go inside, although it is
not clear from the record whether he did so before the victim
left. Nonetheless, at some point during the 911 calls, the
victim's vehicle was released from the jack and he left
the area to meet the police.
7 Neckel was charged with one count of felony menacing for
threatening the victim with the metal pipe and one count of
second degree criminal tampering for using the jack to
prevent the victim from leaving in his car. A jury found
Neckel guilty of both counts.
8 Neckel raises three contentions on appeal. First, he argues
that the trial court committed plain error when it failed to
sua sponte correct four alleged misstatements by the victim
and the prosecutor regarding the law of trespass. Second, he
contends that the trial court erroneously rejected his
tendered jury instruction concerning the duty to retreat as
it applies to the affirmative defense of defense of premises.
And last, he asserts that the trial court erroneously refused
his supplemental instructions defining "unlawful
trespass" in the context of the affirmative defense of
defense of premises. We address and reject each argument in
Trial Court Did Not Err by Failing to Sua Sponte Correct
Alleged Misstatements of Law by the Victim and the Prosecutor
9 Neckel asserts that the trial court committed plain error
when it failed to correct what he contends were a total of
"four misstatements regarding the law of trespass"
made by the victim while testifying and the prosecutor during