Peo v. Dijulio

• Court: Colorado Court of Appeals
• Decided: April 17, 2025
• Docket: 23CA2027
• Status: Unpublished

Opinion

23CA2027 Peo v Dijulio 04-17-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA2027 Mesa County District Court No. 22CR193 Honorable Matthew D. Barret, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

John Edward Dijulio,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division VI Opinion by JUDGE SCHUTZ Welling and Kuhn, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced April 17, 2025

Philip J. Weiser, Attorney General, Jenna Baker, Assistant Attorney General Fellow, Denver, Colorado, for Plaintiff-Appellee

Joseph Chase, Alternate Defense Counsel, Denver, Colorado, for Defendant- Appellant ¶1 This appeal arises from a jury trial and resulting verdict

finding John Edward Dijulio guilty of first degree assault on a peace

officer. Dijulio appeals the conviction, challenging the sufficiency of

the evidence. We affirm.

I. Background

¶2 Colorado State Patrol Trooper Samuel Goure pulled over a car

that was being driven without its headlights illuminated. Dijulio

was a passenger in that car. While identifying Dijulio, Goure

learned that he had two outstanding arrest warrants. Goure asked

Dijulio to step out of the car. Dijulio carried a knife clipped to his

front pants pocket, which Goure saw. Dijulio allowed him to

remove it.

¶3 Dijulio became uncooperative when Goure tried to arrest him

on the warrants, repeatedly stating that he was “not going to jail”

and was “not cooperating” with Goure. When Goure tried to grab

him, Dijulio produced a handgun from his jacket and pointed it at

Goure. After telling Dijulio to drop the gun twice — commands that

Dijulio did not abide — Goure fired his gun at Dijulio three times,

missing him. Dijulio did not return fire, but kept his gun pointed

toward Goure while yelling “just let me be” and “just let me go.”

1 Goure took cover behind the car and, after a brief standoff, Dijulio

fled the scene.

¶4 Shortly after fleeing, Dijulio entered a nearby house. Two

adults and a young child were there; the child’s mother was awake,

and the father was asleep. When the mother confronted Dijulio, he

told her not to be alarmed and that he had just been shot at by the

police. She noticed that he had a gun and woke father, who

grabbed Dijulio’s arm and held it behind his back as he walked him

out of the house. They called the police after Dijulio left.

¶5 Officers eventually found Dijulio sitting on a bench near the

house he’d entered, with the handgun placed on the bench next to

him. Roughly twenty officers surrounded Dijulio and gave him

several verbal commands to get on the ground. Dijulio verbally

responded to some of the commands but did not comply.

Eventually, officers released a service canine, which bit Dijulio’s leg,

and the officer then deployed a taser on him. Officers recovered

Dijulio’s gun, noting that the clip was full and a round was

chambered.

2 ¶6 Dijulio was charged with five counts, including first degree

assault of a peace officer. After a trial, the jury found him guilty of

the first degree assault charge and other charges.1

II. Analysis

¶7 Dijulio argues that the prosecution did not introduce sufficient

evidence to prove he had the specific intent that is necessary to

establish first degree assault. We disagree.

A. Standard of Review

¶8 Appellate courts review sufficiency claims de novo. McCoy v.

People, 2019 CO 44, ¶ 34. “We consider ‘whether the relevant

evidence, both direct and circumstantial, 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 mind that

the defendant is guilty of the charge beyond a reasonable doubt.’”

Id. at ¶ 63 (quoting Clark v. People, 232 P.3d 1287, 1291 (Colo.

2010)). Any inferences must be drawn only on established facts.

McBride v. People, 2022 CO 30, ¶ 38. Those inferences must be

supported by a “logical and convincing connection between the facts

1 Dijulio challenges only his conviction for first degree assault.

3 established and the conclusion inferred.” People v. Perez, 2016 CO

12, ¶ 25 (quoting People v. Gonzales, 666 P.2d 123, 128 (Colo.

1983)).

¶9 Determining a witness’s credibility and resolving conflicting

evidence are matters entrusted to the jury. See People v. McIntier,

134 P.3d 467, 471 (Colo. App. 2005) (“When the sufficiency of the

evidence is challenged on appeal, the reviewing court must

determine whether any rational trier of fact might accept the

evidence, taken as a whole and in the light most favorable to the

prosecution, as sufficient to support a finding of guilt beyond a

reasonable doubt.”). Thus, a reviewing court “should not attempt to

‘serve as a thirteenth juror or invade the province of the jury.’”

Perez, ¶ 25 (quoting People v. Bennett, 515 P.2d 466, 469 (Colo.

1973)).

¶ 10 Assault in the first degree of a peace officer requires proof

beyond a reasonable doubt that a defendant threatened a peace

officer with a deadly weapon “[w]ith intent to cause serious bodily

injury.” § 18-3-202(1)(e), C.R.S. 2024. To prove the requisite

intent, the prosecution must show a defendant’s “conscious

objective [was] to cause the specific result proscribed by the statute

4 defining the offense.” § 18-1-501(5), C.R.S. 2024. “It is immaterial

to the issue of specific intent whether or not the result actually

occurred.” Id. “[S]pecific intent must be established beyond a

reasonable doubt, [and] it may be proven by circumstantial

evidence.” People v. Walker, 542 P.2d 1283, 1285 (Colo. 1975).

B. Applicable Law

¶ 11 Numerous Colorado cases have upheld a first degree assault

conviction or similar charges based on the defendant’s specific

intent as revealed by his words and actions and the totality of the

circumstances. See, e.g., People v. Black, 523 P.2d 1402 (Colo.

1974); Walker, 542 P.2d 1283; People v. Prante, 493 P.2d 1083

(Colo. 1972).

¶ 12 In Black, two officers confronted the defendant in the

basement of a church he had just broken into. 523 P.2d at 1403.

One of the officers saw that he had a gun, attempted to reach for it,

and alerted the other officer that the defendant had a gun. Id. The

defendant then stated, “Yes, I’ve got a gun and I’m goin’ to kill me

a . . . cop.” Id. The gun discharged during the ensuing struggle —

striking the defendant’s leg — although it was unclear who fired it.

Id. The jury convicted the defendant of assault with intent to

5 commit murder. On appeal, the supreme court concluded these

facts provided sufficient evidence to establish the defendant’s

specific intent to commit assault against a peace officer. Id.

¶ 13 In Walker, the defendant was confronted by a rival, and during

the resulting confrontation he pulled a gun and fired it four times,

hitting the rival once in the leg. 542 P.2d at 1285. The rival fled

and fell to the ground at the entryway of a restaurant. Id. The

defendant approached the rival and frisked him for a gun. Id.

¶ 14 Three undercover officers were in the restaurant, heard the

gunfire, and saw the defendant standing over the rival. Id. As the

officers approached, the defendant pointed his gun at them. Id.

One of the officers shot the defendant, who was subsequently

charged with assault of a peace officer with a deadly weapon. Id.

The jury returned a guilty verdict. Id.

¶ 15 On appeal, the defendant challenged the sufficiency of the

evidence. Id. The supreme court reasoned that it did not matter

that the defendant had not made a specific threat to the officers.

Rather, the court held that the jury could reasonably infer his

specific intent because he pointed a gun at the officers, who were

standing about seven feet away, and one of the officers identified

6 himself as an officer and ordered the defendant to drop the gun,

which he did not do. Id.

¶ 16 In contrast, in People in Interest of D.G.P., 570 P.2d 1293

(Colo. 1977), a police officer woke a sleeping minor who had a gun

tucked in his waistband. As the juvenile awoke, both reached for

the gun, and the officer secured it. Id. at 1296. During the

struggle, the juvenile hit the back of the officer’s hand. The juvenile

made no statements threatening the officer and did not have

possession of the gun during the confrontation. Id. The juvenile

was adjudicated. Id. The supreme court vacated the conviction,

concluding that even viewed in the light most favorable to the

prosecution, the evidence was insufficient to support a conviction

for first degree assault. Id.

¶ 17 The People point to Prante. There, the defendant was hiding

from police in a closet. When the police opened the closet door,

Prante emerged with a loaded gun in his hand that “was leveled to

some degree.” Prante, 493 P.2d at 1084. Prante refused to comply

with the officer’s demand that he drop the gun, and the officer then

forcibly took it from him. Id. Based on these facts, the supreme

7 court rejected Prante’s challenge to the sufficiency of the evidence

and affirmed his conviction. Id. at 1084-85.

C. Discussion

¶ 18 Dijulio argues that his acts and omissions, viewed in the

context of the surrounding circumstances, demonstrate that he had

no intent to harm Goure, and therefore there was insufficient

evidence for the jury to convict him of first degree assault. We

disagree.

¶ 19 Dijulio points to Black, noting that the defendant there not

only pulled a gun, but also expressly stated that he was going “to

kill me a . . . cop.” 523 P.2d at 1403. In contrast, Dijulio notes that

he never threatened to kill Goure, and to the contrary, his express

statements suggested that killing Goure was neither his intent nor

his objective. Instead, he argues, his intent was simply to avoid

arrest.

¶ 20 Next Dijulio points to Walker, noting that the conviction there

was upheld, in part, because prior to confronting the officers, the

defendant had discharged his gun four times, shooting his rival in

the leg. Even though the defendant never verbally threatened the

officers or shot at them, Dijulio reasons that the defendant’s intent

8 to use the weapon to harm the officers could be inferred because he

had just shot his rival before pointing the gun at the officers. In

contrast, Dijulio notes that he never discharged his gun, whether at

Goure or anyone else.

¶ 21 Thus, Dijulio argues D.G.P. is controlling. Like the juvenile

there, Dijulio notes that he did not verbally threaten to shoot

Goure, and did not shoot at him. Beyond his direct interactions

with Goure, Dijulio also points to his interactions with the family

whose house he broke into. Instead of pulling his gun on any of the

occupants, Dijulio attempted to assure them that he did not intend

any harm. And after leaving their house, Dijulio notes that he

proceeded to sit on a bench, where, despite the gun being by his

side, he never pointed it at officers or the canine that bit him, and

he did not threaten to shoot them.

¶ 22 Based on the totality of these circumstances, Dijulio argues

there was a lack of sufficient evidence for the jury to conclude that

he had the specific intent to harm Goure.

¶ 23 Initially, we reject any suggestion that the circumstances

present in Black or Walker reflect conditions that are necessary to

sustain a first degree assault conviction. Rather, these

9 circumstances were sufficient conditions. In Black, the fact that the

defendant expressly stated that he was going to kill the officer and

his effort to pull his gun were sufficient conditions to support a

conclusion that he had the specific intent to harm the officer. So

too, in Walker, the defendant’s prior discharge of his gun and

subsequently pointing his gun at the officers were sufficient

conditions to support the conclusion that he had the specific intent

to harm the officers.

¶ 24 But it does not follow that a prior discharge of the firearm or

an express verbal threat to kill an officer are necessary conditions

to establish the specific intent required to support a conviction for

assault in the first degree. Rather, as Dijulio seems to concede, the

existence of such intent must be based on the totality of the

circumstances present in a given case. See People v. Thompson,

121 P.3d 273, 278-79 (Colo. App. 2005) (if there is evidence upon

which one may reasonably infer an element of the crime, the

evidence is sufficient to sustain that element, and where reasonable

minds could differ, the evidence is sufficient to sustain a

conviction).

10 ¶ 25 Dijulio argues that the totality of the circumstances

demonstrates that he had no intention to cause Goure serious

bodily injury. Nevertheless, he concedes that pointing the gun at

Goure and telling him that he was “not going to jail” could provide

sufficient evidence for the jury’s conclusion that he intended to

cause Goure serious bodily harm. But Dijulio argues that his

conduct after pulling the gun — not shooting at Goure, not

deploying his gun against the family whose house he broke into,

and not shooting at the police who surrounded him as he sat on the

bench — demonstrates that his only goal was to avoid arrest, not to

hurt Goure.

¶ 26 But Dijulio’s urged conclusion would require us to view the

evidence presented at trial through the wrong procedural lens. In

advancing his argument, Dijulio emphasizes the facts revealed at

trial that are most favorable to him, and which — viewed in

isolation — could support an acquittal on the first degree assault

charge. But on appeal, we are not permitted to consider the

appropriateness of the jury’s verdict by viewing the evidence in the

light most favorable to the defendant and drawing inferences in his

favor. To the contrary, in the procedural context of a sufficiency

11 challenge, we must view the evidence in the light most favorable to

the prosecution and draw all reasonable inferences in the

prosecution’s favor. McCoy, ¶ 34; McIntier, 134 P.3d at 471. When

viewed through this prism, the evidence presents a significantly

different picture than Dijulio portrays.

¶ 27 From the start, the evidence indicates that Dijulio refused to

cooperate when Goure attempted to arrest him. Dijulio then pulled

a fully loaded gun and pointed it directly at Goure, telling him that

he was “not going to jail.” Even when Goure pulled his service

revolver and ordered Dijulio to drop the gun, Dijulio refused and

continued to resist arrest, telling Goure to “just let [him] go” as he

continued to level his gun at him. Even after Goure shot at him,

Dijulio refused to drop the gun.

¶ 28 After fleeing, Dijulio broke into the home of strangers, armed

with a gun. While the fact that he did not use his gun could

support the conclusion that he meant the occupants no harm, the

fact the he broke into their house also reflects a significant measure

of desperation while attempting to avoid apprehension at all costs.

¶ 29 Similarly, the fact that Dijulio did not attempt to shoot the

officers or the canine that bit him could be viewed as an absence of

12 intent to harm anyone, including Goure. But it could also be

reasonably interpreted as a reflection of Dijulio’s desperate mental

state and his willingness to do anything to avoid arrest.

¶ 30 These facts, viewed in the light most favorable to the

prosecution, could lead a reasonable jury to conclude that Dijulio

had the specific intent to harm Goure when he pulled the gun on

him and said that he wasn’t going to jail. A reasonable juror could

conclude that the first degree assault was committed at this point

in time, regardless of what happened thereafter. See People v.

Trujillo, 543 P.2d 523, 524 (Colo. 1975) (“The totality of the facts

and circumstances surrounding the shooting clearly justify strong

inferences which could be drawn by the jury that the defendant had

the specific intent to injure [the victim] with his gun.”).

¶ 31 Like the defendant in Walker, Dijulio pulled a gun on an

officer who stood less than ten feet from him, aimed the gun at him,

and repeatedly failed to comply with demands that he drop the gun.

And like the defendant in Prante, he pointed a loaded gun at an

officer while resisting arrest. And these same facts distinguish

D.G.P., where the juvenile did not aim his gun at the officer or

verbally threaten to shoot him.

13 ¶ 32 Perhaps, viewing the evidence through the lens Dijulio urges, a

reasonable juror could have acquitted him of first degree assault.

But this jury heard the evidence and found Dijulio guilty. Viewing

that evidence in the light most favorable to the prosecution and

drawing all reasonable inferences in its favor, we cannot conclude

there was insufficient evidence to support the verdict.

III. Disposition

¶ 33 The judgment of conviction is affirmed.

JUDGE WELLING and JUDGE KUHN concur.