Certiorari to the Colorado Court of Appeals Court of Appeals
Case No. 14CA1392
Attorneys for Petitioner: Megan A. Ring, Public Defender
Meredith K. Rose, Deputy Public Defender Denver, Colorado
Attorneys for Respondent: Philip J. Weiser, Attorney General
Gabriel P. Olivares, Assistant Attorney General Denver,
While in a friend's apartment, Lance Margerum made sexual
advances towards E.S. When she rebuffed him, he pushed her
onto a bed and began kissing and groping her. E.S. fought
back and promised that she would not tell anyone, and
Margerum allowed her to leave. Margerum then invited his
sister, T.M., to the apartment to pick up some clothes. When
she arrived, Margerum grabbed her, choked her, and punched
her. E.S. testified at Margerum's trial while she was on
probation for an unrelated offense. The trial court refused
to allow Margerum to impeach E.S.'s credibility based on
her probationary status. The jury found Margerum guilty of
unlawful sexual contact with respect to E.S. and both
third-degree assault and felony menacing with respect to T.M.
The court of appeals affirmed Margerum's convictions.
People v. Margerum, 2018 COA 52, ¶ 47, __
Margerum now argues that the trial court's refusal to
allow defense counsel to impeach E.S.'s credibility based
on her probationary status requires reversal. He also argues
that he cannot be convicted of both assault and menacing
based on the same conduct. Therefore, we must answer two
questions here: (1) whether a witness's credibility may
be impeached based on her probationary status at the time she
testifies; and (2) whether Margerum may be convicted of both
assault and menacing based on the same conduct. Our answer to
both of those questions is yes. But because we conclude that
the trial court's error in not allowing defense counsel
to impeach E.S. based on her probationary status was
harmless, we conclude that reversal is not required.
Accordingly, we affirm the opinion of the court of appeals on
Facts and Procedural History
Margerum often slept on his friend's couch. One day,
Margerum arrived at his friend's apartment when his
friend's fiancée, E.S., was there alone. Margerum
propositioned E.S., and when she refused, he pushed her onto
a bed and began kissing her, groping her, and attempting to
remove her clothes. E.S. pushed and hit Margerum until he
stopped. Margerum allowed E.S. to leave after she convinced
him that she would not tell anyone about what had happened.
Margerum then contacted his sister, T.M., and told her to
come to the apartment so that he could give her some clothes.
Once T.M. arrived at the apartment, she discovered that
Margerum did not have any clothes for her, and she turned to
leave. Margerum then came up behind her, put her in a
chokehold, and began punching her. After a prolonged
struggle, T.M. hit Margerum and escaped. As a result of these
incidents, the People charged Margerum with several offenses:
unlawful sexual contact and third-degree assault of E.S.; and
unlawful sexual contact, second-degree assault, and felony
menacing of T.M.
E.S. testified at Margerum's trial. At that time, she was
on probation for misdemeanor forgery. Defense counsel sought
to impeach E.S.'s credibility with her forgery conviction
and the fact that she was currently on probation. The trial
court allowed defense counsel to cross-examine E.S. about the
facts underlying her forgery conviction, but it did not allow
cross-examination concerning the conviction itself or the
fact that E.S. was on probation when she testified.
Ultimately, with respect to E.S., the jury found Margerum
guilty of unlawful sexual contact but acquitted him of
third-degree assault. As to T.M., the jury found Margerum
guilty of third-degree assault and felony menacing but
acquitted him of second-degree assault and unlawful sexual
contact. Subsequently, Margerum was sentenced to jail for one
year for third-degree assault and for one year for unlawful
sexual contact and to the Department of Corrections for six
years for felony menacing,  all to run concurrently. He
appealed, arguing that: (1) the trial court erred in
prohibiting him from impeaching E.S. with respect to her
probationary status; and (2) the evidence was insufficient to
support his convictions for both assault and menacing because
those convictions stemmed from the same conduct.
Regarding impeachment, the court of appeals concluded that
probationary status is not always relevant as evidence of
bias. Margerum, ¶ 47. The court explained that
the admissibility of a witness's probationary status for
purposes of impeachment is predicated on some logical
connection between her probationary status and her motivation
for testifying. Id. And because the court of appeals
determined that such a logical connection was lacking in this
case, it concluded that the trial court did not err in
disallowing the impeachment inquiry. Id. at
As to the sufficiency of the evidence, the court of appeals
determined that the menacing statute does not require that
the victim experience fear prior to any injury.
Id. at ¶ 61. And because the court determined
that present injury can serve as the basis for fear of
imminent serious bodily injury, it concluded that the
evidence against Margerum was sufficient to support
convictions for both assault and menacing based on the same
conduct. Id. at ¶¶ 60, 69. Margerum then
petitioned this court, and we granted
certiorari. We now affirm, albeit on different grounds
regarding the impeachment issue.
Confrontation and Probationary Status
To answer the question of whether a witness's
probationary status is admissible for impeachment purposes,
we first examine U.S. Supreme Court precedent regarding a
criminal defendant's right to confront the witnesses
against him. Then, we look to how Colorado has resolved
issues regarding confrontation as it relates to a
witness's probationary status and the standard to impeach
a witness's credibility based on that status. After doing
so, we conclude that a witness's probationary status is
always relevant when the witness is on probation with the
State and testifies for the prosecution because the witness
is in a vulnerable position. Hence, the failure to allow the
impeachment inquiry here was error. But we conclude that, in
this instance, the error was harmless and thus, does not
Standard of Review
Trial courts have discretion to impose limits on
cross-examination of witnesses, and we will not disturb
rulings on those limits absent an abuse of that discretion.
People v. Raffaelli, 647 P.2d 230, 233-34 (Colo.
1982); People v. Conyac, 2014 COA 8M, ¶ 91, 361
P.3d 1005, 1023. "A trial court abuses its discretion
when it misapplies the law." People v.
Jefferson, 2017 CO 35, ¶ 25, 393 P.3d 493, 499.
At trial, criminal defendants are guaranteed the right to
confront the witnesses against them. U.S. Const. amend VI;
Colo. Const. art. II, § 16. This right is primarily
secured through cross-examination. See Davis v.
Alaska, 415 U.S. 308, 315-16 (1974). Cross-examination
allows a party to interrogate a witness's
"perceptions and memory" and is also "the
principal means by which the believability of a witness and
the truth of his testimony are tested." Id. at
316. In that vein, "the cross-examiner has traditionally
been allowed to impeach, i.e., discredit, the witness."
Id. Any witness's credibility can be attacked by
unearthing any potential source of impartiality, such as bias
or an ulterior motive. See id. Moreover, a
prosecution witness's partiality may be ...