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People v. Neckel

Court of Appeals of Colorado, Fifth Division

May 9, 2019

The People of the State of Colorado, Plaintiff-Appellee,
v.
Eric Alexus Neckel, Defendant-Appellant.

          Larimer County District Court No. 15CR1844 Honorable Daniel J. Kaup, Judge

          Philip J. Weiser, Attorney General, Gabriel P. Olivares, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

          Alan M. Lijewski, Alternate Defense Counsel, Longmont, Colorado, for Defendant-Appellant

          OPINION

          JUDGE GROVE

         ¶ 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.

         I. Background

         ¶ 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 yet."[1]

         ¶ 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 there?
Neckel: It matters not. . . .

         The 911 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.

         II. Analysis

         ¶ 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 turn.

         A. The 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 ...


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