23CA1684 Peo v Hampton 01-09-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 23CA1684 City and County of Denver District Court No. 22CR2442 Honorable Karen L. Brody, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Rashad A. Hampton,
Defendant-Appellant.
JUDGMENT AFFIRMED AND CASE REMANDED WITH DIRECTIONS
Division VI Opinion by JUDGE WELLING Brown and Moultrie, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced January 9, 2025
Philip J. Weiser, Attorney General, Josiah Beamish, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Nicole M. Mooney, Alternate Defense Counsel, Golden, Colorado, for Defendant- Appellant ¶1 Defendant, Rashad A. Hampton, appeals the judgment of
conviction entered upon jury verdicts finding him guilty of felony
second degree assault of a peace officer while lawfully confined or in
custody, in violation of section 18-3-203(1)(f), C.R.S. 2024, and
misdemeanor third degree assault. Hampton contends that
because he wasn’t lawfully confined or in custody at the time of the
alleged assault, the prosecution didn’t present sufficient evidence to
prove the felony assault conviction and that the misdemeanor
assault conviction should be merged into the felony assault
conviction. We disagree and, therefore, affirm the judgment.
I. Background
¶2 On the morning in question, Hampton was in a courtroom in
the Denver District courthouse regarding an unrelated case. While
waiting for his case to be called, sheriff’s deputies became aware
that warrants had been issued for Hampton’s arrest. After receiving
verbal confirmation from the National Crime Information Center
(NCIC) that Hampton had active warrants for his arrest, the
deputies informed Hampton’s attorney of the warrants and that he
1 would be taken into custody.1 Hampton’s attorney entered the
courtroom and pulled Hampton aside to inform him of this news.
Upon hearing this news, Hampton became agitated and wanted to
know the basis for the warrants, which wasn’t known by his
attorney or the sheriff’s deputies at the time.
¶3 Deputy Telisma was stationed inside the courtroom, and, after
confirming the warrants, Deputy Lukajic entered the courtroom and
stood near the doors. Hampton remained seated when his case was
called, and, at the conclusion of the case, the judge instructed the
deputies to take Hampton into custody. Deputy Telisma
approached Hampton from the front and told him to stand up and
give his personal belongings to his girlfriend, who was present in
the courtroom. Hampton complied with the order but remained
agitated and denied having any warrants. Deputy Telisma informed
Hampton that he was going to touch him and reached for
Hampton’s wrist. Hampton pulled away and told Deputy Telisma
not to touch him yet.
1 “The NCIC computer system provides police officers throughout
the country with information about outstanding warrants.” See People v. Fields, 785 P.2d 611, 612 n.2 (Colo. 1990).
2 ¶4 Deputy Lukajic, who had approached Hampton from behind,
again informed Hampton that he would be touched and reached for
Hampton’s wrist. Hampton pushed Deputy Lukajic. When Deputy
Lukajic again attempted to seize Hampton’s wrist, Hampton
grabbed the deputy and pushed him into the courtroom door.
Hampton and Deputy Lukajic then fell to the floor, and Deputy
Lukajic’s back struck a courtroom bench.
¶5 An altercation ensued, during which additional deputies,
including Deputy Goularte, responded to a call for assistance and
attempted to get Hampton to comply with their orders to put his
hands behind his back so that he could be handcuffed. The
deputies used a taser to obtain Hampton’s compliance and place
him in handcuffs.
¶6 The State charged Hampton with two counts of second degree
assault of a peace officer causing serious bodily injury (naming
Deputies Lukajic and Goularte as victims) and three counts of
second degree assault of a peace officer while lawfully confined or in
custody (naming Deputies Goularte, Lukajic, and Telisma as the
3 victims).2 The jury found Hampton guilty of one count of the lesser
offense of misdemeanor third degree assault and of one count of
second degree assault of a peace officer while lawfully confined or in
custody. Deputy Lukajic was the victim for each count. The jury
acquitted Hampton of the other charges. The district court
sentenced Hampton to one year in prison on the felony assault
conviction and to a consecutive 365 days in jail on the
misdemeanor conviction.
II. Sufficiency of the Evidence
¶7 Hampton asserts that the evidence was insufficient to support
his second degree assault conviction because it didn’t adequately
establish that his allegedly criminal conduct occurred when he was
confined or in custody or that any such custody was lawful. We
address and reject these contentions.
A. Legal Authority and Standard of Review
¶8 To satisfy due process, the prosecution is required to prove all
elements of a crime beyond a reasonable doubt. Montez v. People,
2 Hampton was originally also charged with a resisting arrest count,
which was later dismissed. He was also originally charged with second degree assault causing bodily injury, but the prosecution later amended the count to allege serious bodily injury.
4 2012 CO 6, ¶ 21 (first citing U.S. Const. amend. XIV, § 1; and then
citing Colo. Const. art. II, § 25). As relevant here, a person commits
second degree assault if, “[w]hile lawfully confined or in custody,
[they] knowingly and violently appl[y] physical force against the
person of a peace officer . . . engaged in the performance of [their]
duties.” § 18-3-203(1)(f).
¶9 While “[s]ection 18-3-203(1)(f) may most often be applicable in
circumstances in which a peace officer is attempting to effect a
formal arrest,” see People v. Ortega, 899 P.2d 236, 238 (Colo. App.
1994), a formal arrest isn’t required before a person may be deemed
to be “in custody” for purposes of the statute. See People in Interest
of D.S.L., 134 P.3d 522, 525 (Colo. App. 2006); People v. Rawson, 97
P.3d 315, 323 (Colo. App. 2004); Ortega, 899 P.2d at 238. Instead,
when a person subject to an arrest resists that arrest, the person is
in custody after an arrest has been “effected.” Thomas v. People,
2021 CO 84, ¶ 15; People v. Armstrong, 720 P.2d 165, 169 (Colo.
1986). To effect an arrest for custodial purposes under section 18-
3-203(1)(f), all that is required is that “the peace officer . . . apply a
level of physical control over the person resisting the arrest so as to
reasonably ensure that the person does not leave.” Armstrong, 720
5 P.2d at 169; see also Wieder v. People, 722 P.2d 396, 398 (Colo.
1986); D.S.L., 134 P.3d at 525; Rawson, 97 P.3d at 323; Ortega,
899 P.2d at 238.
¶ 10 The point at which a person is “in custody” is pivotal to the
determination of whether a defendant is guilty of second degree
assault as defined in section 18-3-203(1)(f). Wieder, 722 P.2d at
398; Armstrong, 720 P.2d at 168-69. This is so because, “up until
the point when the arrest is effected, a person may commit resisting
arrest but not second degree assault, and once the arrest is
effected, a person may commit second degree assault but not
resisting arrest.” Thomas, ¶ 15 (citing Armstrong, 720 P.2d at 169).
The determination of whether, based on the totality of the
circumstances, a person is in custody for purposes of section 18-3-
203(1)(f) is, however, within the province of the jury. See Wieder,
722 P.2d at 398; Armstrong, 720 P.2d at 169.
¶ 11 We review sufficiency of the evidence claims de novo to
determine whether the evidence presented was sufficient in both
quality and quantity to sustain a conviction. McBride v. People,
2022 CO 30, ¶ 38; People v. Roggow, 2013 CO 70, ¶ 13. “In so
doing, we must determine whether the relevant evidence, when
6 viewed as a whole in the light most favorable to the prosecution, is
sufficient to support a conclusion by a reasonable mind that the
defendant is guilty of the charges beyond a reasonable doubt.”
Roggow, ¶ 13. “A verdict cannot rest on guessing, speculation,
conjecture, or a mere modicum of relevant evidence.” McBride,
¶ 38.
¶ 12 “An appellate court may not serve as a thirteenth juror and
consider whether it might have reached a different conclusion than
the jury.” People v. Harrison, 2020 CO 57, ¶ 33. Instead, we afford
the prosecution the benefit of every reasonable inference that might
be fairly drawn from the evidence, and, where reasonable minds
could differ, deem the evidence sufficient to sustain a conviction.
Thomas, ¶ 10; People v. Alemayehu, 2021 COA 69, ¶ 18.
¶ 13 “It is the fact finder’s role to weigh the credibility of witnesses,
to determine the weight to give all parts of the evidence, and to
resolve conflicts, inconsistencies, and disputes in the evidence.”
People v. Poe, 2012 COA 166, ¶ 14. Therefore, determinations on
issues of credibility and weight will not be disturbed on appeal
“unless the evidence is legally insufficient to support a finding of
guilt beyond a reasonable doubt.” People v. Padilla, 113 P.3d 1260,
7 1261 (Colo. App. 2005). “The jury, not the court, must perform the
fact-finding function when conflicting evidence — and conflicting
reasonable inferences — are presented” and, therefore, in a
sufficiency of the evidence inquiry, “[an appellate] court must not
invade the province of the jury by second-guessing its conclusion
when the record supports the jury’s findings.” People v. Perez, 2016
CO 12, ¶ 31.
B. “Confined or In Custody” Element
¶ 14 Hampton argues that the evidence didn’t sufficiently establish
that he was in custody “at the point that he put his hands on
[Deputy] Lukajic’s chest that resulted in [Deputy] Lukajic’s injuries
from falling into the door and bench.” He instead claims that the
evidence supports a finding that his conduct constituted, at most,
the crime of resisting arrest. We aren’t persuaded.
¶ 15 At trial, Deputy Telisma testified that, before the incident
became physical, Deputy Lukajic was standing near the courtroom
doors, which were the courtroom’s only public entrance and exit.
Deputies Telisma and Lukajic stated that, at that point, Hampton
wouldn’t have been permitted to leave. The deputies also agreed
that Hampton knew he would be taken into custody on the
8 warrants and that he wasn’t free to leave the courtroom. After his
unrelated case had concluded, the judge instructed the deputies to
take Hampton into custody, and Deputies Telisma and Lukajic
accordingly surrounded him and attempted to grab his wrist. The
prosecution introduced into evidence video recordings from the
courtroom surveillance system and the deputies’ body cameras,
which captured these events and the ensuing physical altercation.
¶ 16 Hampton’s girlfriend confirmed that, before his unrelated case
was called, Hampton had been notified that he had warrants for his
arrest and that he would be taken into custody at the end of the
proceeding. She said that, when told about the warrants, Hampton
looked to her and said, “She did it again.”
¶ 17 Hampton testified at trial and admitted that his attorney had
notified him about the warrants before the unrelated case was
called. And he acknowledged that his statement, “She did it again,”
reflected his belief that a person he knew had accused him of
something that caused the warrants to be issued. Hampton further
testified that, when Deputy Telisma told him to give his personal
belongings to his girlfriend, he knew that he would be placed into
custody and that he wasn’t attempting to leave the courthouse.
9 ¶ 18 A captain with the Denver County Sheriff’s Department, who
was qualified as an expert in use of force and investigations,
testified without objection that, in order to ensure an officer’s safety
when taking someone into custody, the officer would take control of
the person’s wrist and place it behind their back to apply the
handcuffs. The captain also opined that Deputy Telisma’s and
Deputy Lukajic’s attempts to grab Hampton’s wrist were
appropriate uses of force.
¶ 19 Viewing this evidence in the light most favorable to the
prosecution and affording the prosecution the benefit of every
reasonable inference that may be drawn therefrom, we conclude
that the evidence was sufficient for a reasonable jury to find beyond
a reasonable doubt that, at the time Hampton assaulted Deputy
Lukajic, he was in custody because the deputies had established a
level of physical control over Hampton so as to reasonably ensure
that he wouldn’t leave the courtroom. See People v. Caldwell, 43
P.3d 663, 672 (Colo. App. 2001) (“If the prosecution presents
evidence from which the trier of fact may properly infer the
elements of the crime, the evidence is sufficient to sustain the
conviction.”); Clark v. People, 232 P.3d 1287, 1293 (Colo. 2010)
10 (“Jurors must rely on the evidence presented at trial and their own
common sense to determine the question of guilt.”).
¶ 20 Specifically, we note that (1) the deputies had positioned
themselves in the courtroom to prevent Hampton from leaving;
(2) Hampton had been informed by the deputies, his attorney, and
the court that he would be taken into custody on the arrest
warrants; (3) Hampton assumed the warrants may have been
issued based on the accusations of someone known to him;
(4) Deputy Telisma had instructed Hampton to give his personal
items to his girlfriend before being taken into custody; (5) Hampton
complied with this instruction and acknowledged that, when
providing the items to his girlfriend, he knew he would be taken
into custody, and wasn’t attempting to leave the courthouse; and
(6) the deputies made multiple attempts to grab Hampton’s wrist to
apply handcuffs. See D.S.L., 134 P.3d at 524-25 (defendant was in
custody for purposes of section 18-3-203(1)(f) where officers told
defendant to step out of his car, told him he would be handcuffed
and started to handcuff him); Rawson, 97 P.3d at 323-24
(defendant was in custody for purposes of section 18-3-203(1)(f)
where police stopped defendant’s car with stop sticks, pointed a
11 gun at the defendant and grabbed the defendants arm several
times).
¶ 21 Hampton relies on Armstrong and Thomas to support his
position that “only after [he] was tased and handcuffed was
sufficient physical control exercised over him for him to be
considered in custody.” Therefore, he argues, he at most committed
the offense of resisting arrest. We aren’t persuaded that these cases
compel a different result.
¶ 22 The relevant language from Armstrong that Hampton relies on
is that
[o]ne of the factors in making . . . a determination [as to whether the defendant was guilty of both resisting arrest and second degree assault, or whether he was guilty only of resisting arrest or only of second degree assault] shall be whether the actions of [the defendant], which caused injury to the officers, were continuous, stemming from his efforts to resist arrest, or whether there was a break between his actions to thwart [the] officer[’s] . . . efforts to arrest him and the actions which lead to the injury of [the] officers . . . .
Armstrong, 720 P.2d at 169. Hampton argues that his actions were
continuous and stemming from an effort to resist the officers’
attempts to handcuff him.
12 ¶ 23 In Thomas, the supreme court concluded that the defendant’s
conduct after he was in custody couldn’t be relied on to resolve a
sufficiency of the evidence challenge to his conviction for resisting
arrest. Id. at ¶¶ 1-2, 11-18. In reaching this conclusion, the court
held that the defendant’s arrest was effected, and he was thus in
custody, once the deputies had handcuffed him and that “[t]hat was
the line of demarcation at which the crime of resisting arrest ended
and the potential to commit the crime[] of second degree assault . . .
began.” Id. at ¶ 17. Hampton claims that, when he was
handcuffed, “[i]t is only at that point that the officers established
physical control over [him] as required in Thomas.”
¶ 24 But the instructiveness of these cases is limited with respect
to the sufficiency of the evidence issue before us. We agree that
Armstrong says that whether a defendant’s actions were continuous
or broken is a factor to be considered in determining the type of
offense committed. But, in that case, the supreme court made clear
that such determinations are for the trier of fact. Armstrong, 720
P.2d at 169. And, in Thomas, the court’s conclusion that the
defendant was definitively in custody once he was handcuffed was
based on the factual circumstances of that particular case. Id. at
13 ¶¶ 2, 17. To the extent that the court in Thomas addressed the line
between resisting arrest and committing an in-custody assault, the
court didn’t reach the question of at what point before the
handcuffing a factfinder could have found the suspect was in
custody; it simply held that, under the facts and circumstances of
Thomas, the handcuffing was the latest point at which resisting
arrest could have been committed. After all, as noted above, formal
arrest and use of handcuffs aren’t required to satisfy the “in
custody” element of second degree assault as defined in section 18-
3-203(1)(f).
¶ 25 The jury’s guilty verdict on second degree assault against
Deputy Lukajic necessarily required a finding that Hampton was in
custody before Hampton applied physical force against him. See
People v. Mosely, 2021 CO 41, ¶ 21 (by finding the defendant guilty
of the charged offense, the jury necessarily found that the
prosecution had proven beyond a reasonable doubt the elements of
the offense). As concluded above, we deem the evidence sufficient
to support the jury’s finding that the deputies had effected an arrest
of Hampton before his initial attack on Deputy Lukajic.
14 C. “Lawful” Custody Element
¶ 26 Hampton also asserts that, even if he was in custody at the
time of his assaultive conduct, the custody wasn’t lawful because
the arresting officers didn’t possess a copy of the warrant when they
arrested him, as required by 16-3-102, C.R.S. 2024. He also argues
that the constitutional right to due process requires officers to
provide the warrant to an arrestee upon request. We disagree.
¶ 27 Section 16-3-102(1)(a) provides that “[a] peace officer may
arrest a person when . . . [h]e has a warrant commanding that such
person be arrested. . . .” We reject Hampton’s interpretation of the
word “has” to require a peace officer to be in physical possession of
the warrant. Instead, an arrest is deemed to be lawful when an
officer relies on confirmation of the existence of a validly issued
arrest warrant. See People v. Gouker, 665 P.2d 113, 115-16 (Colo.
1983) (where the arresting officers learned of an outstanding, out-
of-state arrest warrant for the defendant, the valid warrant provided
the officers with sufficient probable cause to lawfully arrest the
defendant). And although Hampton questioned the reasons for the
warrants when he was arrested, he didn’t later challenge their
validity. See, e.g., People v. Mitchell, 678 P.2d 990, 993, 994-97
15 (Colo. 1984) (defendant’s arrest, which was “based solely on [the]
[o]fficer[’s] . . . reliance upon the dispatcher’s message that there
was an outstanding warrant for the defendant,” was unlawful
because the arrest warrant was erroneously issued), superseded by
statute on other grounds as stated in People v. Woods, 885 P.2d 287
(Colo. App. 1994); Fields, 785 P.2d at 613 (inaccurate warrant
report in the NCIC was insufficient only because no warrant had
actually been issued). Accordingly, we reject Hampton’s contention
that his arrest wasn’t lawful because the deputies effecting that
arrest didn’t possess a copy of the arrest warrant.
¶ 28 Hampton doesn’t provide any argument or authority to
support his constitutional due process argument that an arrestee is
entitled to receive the warrant upon request, so we decline to
address it. See People v. Houser, 2020 COA 128, ¶ 24 (we will not
consider a bald legal proposition presented without argument or
development).
III. Merger
¶ 29 Lastly, Hampton argues that the third degree assault
conviction should have been merged with the second degree assault
conviction. We disagree.
16 ¶ 30 The Double Jeopardy Clauses of the United States and
Colorado Constitutions protect against the imposition of multiple
punishments for the same offense. Reyna-Abarca v. People, 2017
CO 15, ¶ 49. As relevant here, double jeopardy precludes a
defendant from being “convicted of two offenses for the same
conduct if the lesser offense is included in the greater.” Page v.
People, 2017 CO 88, ¶ 9 (citing § 18-1-408(1)(a), C.R.S. 2024).
¶ 31 “An offense is included in another offense when, as pertinent
here, ‘[i]t is established by proof of the same or less than all the
facts required to establish the commission of the [other] offense.’”
Thomas, ¶ 23 (quoting § 18-1-408(5)(a)). In other words, “an offense
is a lesser included offense of another offense if the elements of the
lesser offense are a subset of the elements of the greater offense,
such that the lesser offense contains only elements that are also
included in the elements of the greater offense.” Reyna-Abarca,
¶ 64. “A conviction for an offense that is a lesser included offense of
a greater offense must merge into the conviction for the greater
offense.” Page, ¶ 9.
17 ¶ 32 Whether two or more convictions must merge is a question of
law that we review de novo. Id. at ¶ 6; People v. Barry, 2015 COA 4,
¶ 92.
¶ 33 Hampton’s third degree assault conviction doesn’t contain only
elements that are also included in the elements of his second degree
assault conviction. Specifically, third degree assault requires a
defendant to “cause bodily injury to another person.” § 18-3-
204(1)(a), C.R.S. 2024. In contrast, second degree assault as
defined in section 18-3-203(1)(f) doesn’t require proof of any injury
to anybody.
¶ 34 Thus, because proof of the elements of second degree assault,
as defined in section 18-3-203(1)(f), wouldn’t establish a third
degree assault conviction, the convictions don’t merge. See People
v. Rock, 2017 CO 84, ¶ 16 (“[A]ny set of elements sufficient for
commission of [a] lesser offense that is necessarily established by
establishing the statutory elements of a greater offense constitutes
an included offense.”).
IV. Mittimus
¶ 35 Although not raised by the parties, our review of the record
indicates that Hampton’s mittimus mistakenly reflects that he was
18 convicted of second degree assault pursuant to section 18-3-
203(1)(c.5). On remand, the trial court must amend the mittimus
to reflect a conviction for the class 6 felony of second degree assault
pursuant to sections 18-3-203(1)(f) and (2)(a). See People v. Brown,
2014 COA 155M-2, ¶ 40 (noticing an error in the mittimus not
raised by any party and ordering the trial court to correct it on
remand).
V. Disposition
¶ 36 The judgment of conviction is affirmed, and the case is
remanded for correction of the mittimus.
JUDGE BROWN and JUDGE MOULTRIE concur.