Peo v. Jordan

• Court: Colorado Court of Appeals
• Decided: July 25, 2024
• Docket: 22CA1781
• Status: Unknown

Opinion

22CA1781 Peo v Jordan 07-25-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 22CA1781

City and County of Denver District Court No. 20CR3807

Honorable Eric M. Johnson, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Chadwick Heath Jordan,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division VII

Opinion by JUDGE KUHN

Tow and Gomez, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)

Announced July 25, 2024

Philip J. Weiser, Attorney General, Carmen Moraleda, Senior Assistant

Attorney General, Denver, Colorado, for Plaintiff-Appellee

Robinson & Henry, P.C., Benjamin C. Whitney, Denver, Colorado, for

Defendant-Appellant

1

¶ 1 Defendant, Chadwick Heath Jordan, appeals the judgment of

conviction entered on a jury verdict finding him guilty of second

degree assault. He also appeals his habitual offender adjudication

and the constitutionality of his thirty-two-year prison sentence. We

affirm.

I. Background

¶ 2 This appeal arises out of a physical altercation between

Jordan and the victim. A surveillance video of the incident showed

• Jordan driving his truck into a downtown Denver alley and

stopping with the victim right next to the driver’s side door;

• the victim talking to Jordan, then raising a long stick in

Jordan’s direction;

• Jordan driving forward slightly before stopping again;

• Jordan getting out of his truck, and the victim almost

simultaneously swinging the stick and striking Jordan in

the left forearm;

• Jordan then hitting the victim several times in the head

with an object — later identified as an aluminum baseball

bat — and wrestling the victim to the ground;

2

• Jordan getting on top of the victim and repeatedly punching

the victim for the next fifteen seconds; and

• Jordan standing up and hitting the victim one more time

before getting his bat and driving off.

¶ 3 Both men testified at trial, and each gave a vastly different

account of the events leading up to their altercation. Jordan

testified that he entered the alley because he was looking for a

parking spot in the area. He noticed the victim, according to his

testimony, after he heard “somebody hitting [his] truck” and saw

“someone trying to poke [his] eyes with a stick.” Jordan further

testified that, before he got out of the truck, the victim poked him in

the eye through the open driver’s door window, and that he then

started hitting the victim because he felt “cornered” and feared for

his safety.

¶ 4 The victim, on the other hand, testified that his memory of the

incident was spotty, but that he remembered “most everything

leading up” to the physical altercation. He testified that he was

hanging out with his friends near the alley when he observed

Jordan’s truck and “occupants in the truck . . . hollering and yelling

at people derogatory comments about their race and such as that.”

3

The victim further testified that, after some of the friends left,

Jordan approached the victim in the alleyway and said that “he was

going to beat [the victim] to death” before getting out of the truck

with the bat. When asked whether he remembered having a stick

during his encounter with Jordan, the victim responded that he

couldn’t “recall specifically.”

¶ 5 The victim sustained serious bodily injuries during the fight,

including multiple facial fractures requiring reconstructive surgery

and bleeding in the brain.

¶ 6 In connection with this incident, the prosecution initially

charged Jordan with second degree assault, later adding a first

degree assault count and three habitual offender counts. The jury

acquitted Jordan of first degree assault but found him guilty of

second degree assault. The trial court then found that the

prosecution had proved the three habitual counts beyond a

reasonable doubt and adjudicated Jordan a habitual offender.

¶ 7 The court sentenced Jordan to thirty-two years in the custody

of the Department of Corrections (DOC), with three years of parole.

4

II. Analysis

¶ 8 On appeal, Jordan contends that the trial court erred by

(1) instructing the jury on the initial aggressor exception to

self-defense; (2) lowering the prosecution’s burden of proof in

response to a jury question; (3) adjudicating him a habitual offender

because the prosecution presented insufficient evidence that he had

three prior felony convictions; and (4) finding that his

thirty-two-year sentence didn’t raise an inference of gross

disproportionality that would require the court to conduct an

extended proportionality review. We disagree with each of these

contentions.

A. The Trial Court Didn’t Err by Instructing the Jury on the

Initial Aggressor Exception to Self-Defense

¶ 9 Jordan first contends that the trial court reversibly erred by

including the initial aggressor language in the self-defense jury

instruction. We disagree.

1. Additional Background

¶ 10 At the conclusion of its case-in-chief, the prosecution

requested an initial aggressor instruction, arguing that such an

instruction was appropriate “given the testimony from the witnesses

5

that there were arguments going on, that there was yelling coming

from Mr. Jordan and Mr. Jordan’s vehicle,” and that he drove up to

the victim. Defense counsel objected, arguing that the evidence

established that the victim, not Jordan, initiated the physical

conflict either by thrusting the stick at Jordan while he was still

inside his truck or by hitting him with it as he was getting out. In

response to these arguments, the trial court pointed out that “[t]he

video was far enough away” that it couldn’t determine whether the

thrust was a gesticulation or something else, and that Jordan

getting out of the truck with a bat and the victim then striking him

with the stick supported giving the instruction. The court, however,

deferred making a decision until hearing all the evidence.

¶ 11 The prosecution renewed its request for the initial aggressor

instruction at the close of all evidence, and the defense again

objected. The court initially concluded that such an instruction

wasn’t warranted under the circumstances, reasoning that

the video is clear that [the victim] does walk up

to [the truck] and he certainly thrusts, jabs,

does something with his stick in the direction

of that cab. And that would fit the definition of

initiating physical conflict by using or

threatening the imminent use of unlawful

physical force.

6

¶ 12 In response, the prosecutor pointed out that the victim’s

“testimony [was] that when Mr. Jordan was in the car, he had the

bat, and he told [the victim] that he was, quote, going to beat [the

victim] to death.” Then, “based on that piece of evidence,” the trial

court reversed its original decision and included language about the

initial aggressor exception in the jury instruction.

2. Applicable Law and Standard of Review

¶ 13 Colorado’s self-defense statute provides that

a person is justified in using physical force

upon another person in order to defend

himself . . . from what he reasonably believes

to be the use or imminent use of unlawful

physical force by that other person, and he

may use a degree of force which he reasonably

believes to be necessary for that purpose.

§ 18-1-704(1), C.R.S. 2023. But the right to self-defense is not

limitless. Thus, the prosecution may defeat a defendant’s claim of

self-defense by proving beyond a reasonable doubt that the

defendant was the initial aggressor. § 18-1-704(3)(b); People v.

Roberts-Bicking, 2021 COA 12, ¶ 30. The initial aggressor is the

person who initiated the physical conflict by using or threatening

the imminent use of unlawful physical force. Castillo v. People,

2018 CO 62, ¶¶ 41, 43.

7

¶ 14 A trial court may instruct the jury on the initial aggressor

exception to self-defense when some evidence in the record

supports the exception. Galvan v. People, 2020 CO 82, ¶ 25. And

“[w]hen a trial court is presented with some evidence that a

defendant used force in self-defense, and some evidence that the

defendant is the initial aggressor, the court should instruct the jury

on both self-defense and the initial aggressor exception.” People v.

Newell, 2017 COA 27, ¶ 25. “To qualify as ‘some evidence,’ the

evidence must be such as would support a reasonable inference

that the accused was the initial aggressor . . . .” Roberts-Bicking,

¶ 31; see also Galvan, ¶ 24 n.7 (noting that “some evidence” in

support of the instruction is synonymous with “some credible

evidence,” “any credible [even if highly improbable] evidence,” “a

scintilla of evidence,” “any evidence,” or a “small quantum of

evidence”).

¶ 15 We review de novo whether sufficient evidence supports an

instruction on the initial aggressor exception to a self-defense claim.

Castillo, ¶ 32; People v. Cline, 2022 COA 135, ¶ 31. In doing so, we

view the evidence in the light most favorable to giving the

challenged instruction. Galvan, ¶ 33.

8

3. Discussion

¶ 16 Jordan focuses on the victim’s conduct before Jordan got out

of the truck because, in his view, that was when the physical

altercation began. He contends that the video and his testimony

established that the victim initiated the physical conflict by

attacking him with the stick while he was still sitting inside his

truck. He argues that the only evidence of his aggression before

stepping out of the truck was his words, which, standing alone,

were insufficient to support the court’s initial aggressor instruction.

We’re not persuaded.

¶ 17 To begin, the record doesn’t conclusively establish Jordan’s

version of events. The video shows the victim raising the stick,

thrusting it in Jordan’s direction, and retracting it just before

Jordan starts opening the door. However, it doesn’t definitively

show whether the stick made contact with Jordan or his truck at

that time. Nor does the video — which has no audio — clearly

establish whether the victim was threatening Jordan while waving

the stick around. As the trial court noted during the initial jury

instruction conference, “[t]he video was far enough away” that the

court couldn’t determine what the victim was doing.

9

¶ 18 Moreover, there was other evidence supporting the

prosecution’s version of events. Recall that the victim testified that

Jordan had yelled that “he was going to beat [the victim] to death”

before he got out of the truck with the bat. The victim also testified

that he saw Jordan’s bat when Jordan opened the truck door.

¶ 19 Jordan argues the trial court was wrong to rely on this

testimony to give the instruction for two reasons. First, Jordan

posits that “a verbal confrontation alone is insufficient to make a

defendant the initial aggressor” and that “there must be some

physical action accompanying the words before a defendant can

legally be considered the initial aggressor.” Put differently, Jordan

argues that his fighting words (i.e., that “he was going to beat [the

victim] to death”) didn’t support giving the instruction because they

weren’t uttered in concert with a physical act.

¶ 20 But according to the testimony, there were acts in connection

with Jordan’s words. The victim testified that right after Jordan

uttered his threat, he jumped out of the truck brandishing the bat.

This constitutes some evidence that Jordan’s words were

accompanied by conduct that threatened the imminent use of

unlawful physical force against the victim. See Roberts-Bicking,

10

¶¶ 34-35 (concluding that the trial court didn’t err by giving an

initial aggressor instruction when there was some evidence in the

record that the defendant’s statements that the victims would die

were made in conjunction with the defendant brandishing his

pistol); see also People v. Whiteaker, 2022 COA 84, ¶ 37 (concluding

that an initial aggressor instruction was appropriate because the

defendant not only insulted the victim before attacking her, but also

approached the victim “in an aggressive manner” with her “fists

balled up”), rev’d on other grounds, 2024 CO 25.

¶ 21 The timing of Jordan’s verbal threat and his exit from the

truck support this conclusion. The evidence shows that the threat

and the act were closely related in time given that the entire

incident lasted less than a minute. See Castillo, ¶¶ 47-49

(considering whether a defendant was the initial aggressor as to the

entire incident when the incident lasted “much less than a minute”

and the defendant’s actions were part of a single criminal episode).

¶ 22 Second, Jordan argues that the trial court erred by relying on

the victim’s testimony because it was incredible as a matter of law.

“Testimony is ‘incredible as a matter of law’ only if it is about facts

that physically could not have been observed or events that could

11

not have happened under the laws of nature.” People v. Platteel,

2023 CO 18, ¶ 32 (quoting People v. Minjarez, 81 P.3d 348, 355

(Colo. 2003)).

¶ 23 The victim’s testimony doesn’t fall into either category because

his statements were about what he heard and saw during the

incident (i.e., that Jordan made a verbal threat and that he then

saw Jordan’s bat). The testimony was about events the victim

experienced, and it didn’t contradict the laws of nature. The

testimony also didn’t contradict the inaudible video of the fight;

rather, it added context to the video.

¶ 24 True, the victim also testified that he didn’t recall holding the

stick or any other object during the encounter, a fact refuted by the

video. But the victim added that he would defer to the video

because his recollection of the incident was spotty, and he

acknowledged what the video showed: “I understand that I’m on

video with a stick, so if that’s what’s on the video, then I probably

picked something up to protect myself.” While this record reveals

that part of the victim’s testimony was incomplete as compared with

parts of the video, it wasn’t incredible as a matter of law. See id.

12

(“[T]estimony that is merely biased, conflicting, or inconsistent is

not incredible as a matter of law.”) (citation omitted).

¶ 25 At bottom, the parties here presented evidence supporting

both Jordan’s claim that he acted in self-defense and the

prosecution’s claim that he was the initial aggressor. The evidence

created a factual dispute as to whether the victim had poked

Jordan in the eye while he was still inside his truck or whether

Jordan came out of the truck swinging the bat to start the physical

altercation. Which version of the incident to accept, and, therefore,

whether Jordan was legally justified in using physical force against

the victim, depended on whose story the jury believed. See Newell,

¶ 28 (“It is for the jury, not the judge, to decide which witnesses and

even which version of the witnesses’ testimony is to be believed.”).

¶ 26 Under these circumstances, however, there was evidence to

support both versions of events. Therefore, the trial court correctly

instructed the jury on both self-defense and the initial aggressor

13

exception to that affirmative defense.

1

See id. at ¶ 25. Jordan’s

instructional error challenge, therefore, must fail.

B. Jordan is Precluded from Challenging on Appeal the Trial

Court’s Response to a Jury Question

¶ 27 Jordan next contends that the trial court improperly lowered

the prosecution’s burden of proof in answering a question that the

jury asked during deliberations. The jury inquired about the

manner in which the mental state and voluntary act elements of

first degree and second degree assault were presented in the

elemental instructions (instructions 14 and 13, respectively). The

jury question read,

We are unclear as to why Element #4 [causing

a bodily injury to another person] on

instructions 13+14 is on its own line. Like,

what’s the difference between Element #3

[intent] and Element 3+4 together?

¶ 28 After discussing this question with the parties, the trial court

gave the following response:

1

Jordan argues that we should review his challenge under the

constitutional harmless error standard of reversal. The People, on

the other hand, assert that nonconstitutional harmless error

applies. Because we conclude that the trial court didn’t err by

providing the initial aggressor instruction, we need not resolve the

parties’ dispute regarding the applicable standard of reversal.

14

Instructions 13 and 14 list the elements of

each crime that must be proven. The various

voluntary acts and mental states (see

Instruction No. 16) that constitute a crime are

simply listed as independent elements. The

prosecution bears the burden of proving each

element of a crime beyond a reasonable doubt.

¶ 29 Jordan challenges the court’s response on appeal, arguing not

only that the court further confused the jury by stating that the two

elements were listed separately because they were independent

from one another, but also that the court lowered the prosecution’s

burden of proof by “incorrectly instruct[ing] the jury [that] it could

find Mr. Jordan guilty without the prosecution proving Mr. Jordan

had the intent to cause bodily injury.”

¶ 30 The People argue, among other things, that Jordan is

precluded from challenging the trial court’s response on appeal

because his trial counsel actively participated in — and ultimately

approved — that response. We agree with the People.

¶ 31 During the discussion about the jury question with the

parties, the court initially proposed telling the jury that “the mens

rea mental state of the crime is listed by itself to make clear that the

culpable mental state is an element of the offense that must be

15

proven.” Defense counsel agreed, but added, “And the actions must

be done with that mental state, maybe.”

¶ 32 In response to defense counsel’s suggested language, the court

noted that it “could make [the answer] a little bit longer” by

referring the jury to instruction 16, which contained definitions of

the culpable mental state and voluntary act. The court then

proposed a new answer, “The various voluntary acts and mental

states, see Instruction 16, that constitute a crime are simply listed

as independent elements. The prosecution bears the burden of

proving each element of a crime beyond a reasonable doubt.”

Defense counsel weighed in on this language:

[DEFENSE COUNSEL]: I -- my impression is

that it would be helpful to [the jury] if it were

somehow conveyed that [intent] is the mental

state defined in [instruction] 14. That must be

present in the elements of the crime describing

action or -- I’m trying to think of a concise way

to convey that, because sometimes when we

get elementals -- the reason the mental state is

separate is because there are multiple acts, all

of which need to be done with that mental

state. And if we put the mental state on the

same line as the first act in the chain, it might

be confusing, and the jury might think that

the second act in that chain doesn’t also

require the mental state.

16

I would just want to convey to the jury

something about the mental state applying to

each act -- each element that requires an act.

¶ 33 The court took another stab at crafting the answer:

All right. We’ll keep it simple. I’m just going to

say those are the elements. The prosecution

bears the burden of proving each of the

elements beyond a reasonable doubt.

After the prosecutor asked the court whether this answer was “in

lieu of the original proposed which was referring [the jury] to the

definition[s]” in instruction 16, the court asked defense counsel

which answer he liked better. Counsel responded, “I’d ask for that

then, the initial example the Court gave.” The court then finalized

the answer that Jordan now challenges on appeal:

THE COURT: All right. Here we go.

Instructions 13 and 14 list the elements of

each crime that must be proven. The various

voluntary acts and mental states, see

Instruction 16, that constitute a crime are

simply listed as independent elements. The

prosecution bears the burden of proving each

element of a crime beyond a reasonable doubt.

[DEFENSE COUNSEL]: That’s acceptable.

¶ 34 The People argue that Jordan is barred from challenging this

response under the invited error doctrine. That doctrine prevents a

party from complaining on appeal of an error that the party has

17

invited or injected into the case. People v. Rediger, 2018 CO 32,

¶ 34. “However, its application is limited to situations where an

error was caused by a party’s affirmative, strategic conduct and not

by a party’s inaction or inadvertence.” People v. Garcia, 2018 COA

180, ¶ 7.

¶ 35 In contrast to invited error, “[t]he doctrine of waiver is a

procedural bar to appellate review based on ‘the intentional

relinquishment of a known right or privilege.’” Phillips v. People,

2019 CO 72, ¶ 16 (quoting Rediger, ¶ 39). Although a waiver can be

implied, the conduct must be unequivocal and clearly manifest an

intent to relinquish the claim. Id. at ¶ 21. The mere failure of a

party to raise an issue doesn’t suffice. Id.

¶ 36 Here, the record reveals that Jordan not only approved the

trial court’s final answer to the jury question but also actively

participated in crafting it. True, defense counsel also told the court

that he wanted the response to convey the concept that intent

applied to the voluntary act element in the instructions. But

ultimately, he asked the court to provide an answer that would refer

the jury to instruction 16, like “the initial example the Court gave.”

The court then agreed to defense counsel’s request and crafted an

18

answer reflecting his input. Then, defense counsel confirmed that

the proposed answer was “acceptable.”

¶ 37 Defense counsel’s actions implicate elements of both invited

error and waiver. We need not decide whether the circumstances of

this case fit more closely to one doctrine over the other because

both preclude appellate review. See Rediger, ¶ 34; Phillips, ¶ 16;

see also People v. Jacobson, 2017 COA 92, ¶ 48 (concluding that

the invited error doctrine precluded a defendant from challenging a

jury instruction and the court’s answer to a jury question when the

defendant’s counsel actively participated in preparation of both

items); People v. Mendez, 897 P.2d 868, 871 (Colo. App. 1995)

(holding that a defendant was precluded from challenging the trial

court’s response to a jury question when the record revealed “that

not only did the defendant fail to object to the response, [his]

defense counsel actively participated in the preparation of the

response and approved it”); People v. Phillips, 91 P.3d 476, 484

(Colo. App. 2004) (stating that the defendant was precluded from

challenging the trial court’s response to a jury question when the

“defendant acceded to the court’s response”).

¶ 38 We therefore decline to address this issue any further.

19

C. The Prosecution Presented Sufficient Evidence in Support of

the Trial Court’s Habitual Offender Adjudication

¶ 39 Jordan next contends that the trial court erred by adjudicating

him as a habitual offender because the prosecution failed to present

sufficient evidence that he had three prior felony convictions. We

again disagree.

1. Applicable Law and Standard of Review

¶ 40 Under section 18-1.3-801(2)(a)(I), C.R.S. 2023, a defendant

may be adjudged a habitual offender if the defendant “has been

three times previously convicted [of a felony], upon charges

separately brought and tried, and arising out of separate and

distinct criminal episodes.” “Where the charges against the

defendant were separately brought and would have been tried

separately but for the defendant’s decisions to enter guilty pleas,

the convictions thereby obtained satisfy the definition of predicate

felonies in the habitual criminal statute.” People v. Price, 2023 COA

96, ¶ 69 (quoting Gimmy v. People, 645 P.2d 262, 267 (Colo. 1982))

(alterations omitted).

¶ 41 In habitual offender proceedings, the prosecution bears the

burden of proving beyond a reasonable doubt that the defendant is

20

the person who was convicted of the prior offenses.

§ 18-1.3-803(5)(b), C.R.S. 2023; see also People v. Cooper, 104 P.3d

307, 310 (Colo. App. 2004). “[A] duly authenticated copy of the

record of former convictions and judgments of any court of record

for any of said crimes,” as well as identification photographs and

fingerprints contained in those records or the DOC records

(penitentiary pack), constitute prima facie evidence of the

defendant’s identity. § 18-1.3-802, C.R.S. 2023.

¶ 42 A claim that the prosecution failed to present sufficient

identity evidence requires us to determine 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 was the person who was convicted of the prior

offenses. See People v. Moore, 226 P.3d 1076, 1088 (Colo. App.

2009). We review the record de novo in completing this task. See

Dempsey v. People, 117 P.3d 800, 807 (Colo. 2005); see also

Thomas v. People, 2021 CO 84, ¶¶ 57-58. Such a claim need not be

preserved in the trial court and may be raised for the first time on

21

appeal. See Thomas, ¶ 58; see also McCoy v. People, 2019 CO 44,

¶ 27.

2. Discussion

¶ 43 In connection with the habitual counts, the prosecution

asserted that Jordan had pleaded guilty to conspiracy to commit

menacing (Adams County Case No. 04CR29), attempted assault of a

peace officer (Adams County Case No. 06CR1675), and possession

with intent to manufacture or distribute a controlled substance

(Denver County Case No. 18CR1675). On appeal, Jordan argues

that the prosecution presented insufficient evidence during the

sentencing hearing that he was the person who pleaded guilty in

those three cases. We’re not persuaded.

¶ 44 There was overwhelming evidence that Jordan was the

defendant in each of the prior cases.

2

For starters, the prosecution

introduced the testimony of Bradley Murphy, an expert in

fingerprint examination. Murphy testified that Jordan’s fingerprints

matched the fingerprints that were taken in the prior three cases,

2

Indeed, considering the quality and quantity of evidence

supporting the court’s determination, Jordan’s sufficiency challenge

borders on frivolous.

22

saying “[t]hat they’re all the same” and confirming that they all

belonged to Jordan. See People v. Carrasco, 85 P.3d 580, 583 (Colo.

App. 2003) (“Offering evidence of fingerprint cards and expert

testimony linking those prints to the defendant is a valid method for

proving the identity element, but it is not the only way to show

identity.”).

¶ 45 The prosecution also introduced extensive documentary

evidence in support of the habitual counts. That evidence included

a triple-certified penitentiary pack, certified copies of the court

records for the current case and three prior convictions, and the

fingerprint cards, charging documents, mittimuses, and other

information linking Jordan to those convictions. See § 18-1.3-802.

The documents contained the name, date of birth, gender, race,

height, eye color, hair color, social security number (SSN), state

identification (SID), and FBI number of the defendant in each case,

as well as photos.

¶ 46 The following chart shows that this information was identical

in almost every case record:

23

Table 1: Comparison of Identifying Information (an “X” means that

the information matches between the case records)

Defendant’s

Information

Current

Case

04CR29

06CR1675

18CR1675

Name

Chadwick

H.

Jordan

Chadwick

Heath

Jordan

Chadwick

Heath

Jordan

Chadwick H.

Jordan

DOB

X

X

X

X

Gender

X

X

X

X

Race

X

X

X

X

Height

X

(an inch

shorter)

X

X

Eye Color

X

X

X

X

Hair Color

Black

Black

Black

Brown

SSN

X

X

X

(None)

SID No.

X

X

X

X

FBI No.

X

(None)

X

X

Photo

Identification

X

(7/26/2004

DOC Photo)

(4/19/2007

DOC Photo)

X

Indeed, the relevant case records differed only to the extent that the

records for Case No. 04CR29 listed Jordan an inch shorter and

didn’t include his FBI number and the records for Case No.

18CR1675 reflected a slightly different color of Jordan’s hair and

24

didn’t include his social security number. The penitentiary pack

contained DOC photos dated July 26, 2004, and April 19, 2007.

¶ 47 Jordan contends that the evidence of his prior convictions was

nonetheless insufficient because the expert witness “provided no

testimony beyond his standard practices, and provided no specific

testimony about what was done to compare fingerprints in this

particular case.” Under these circumstances, Jordan argues, the

trial court had to require more “than uncorroborated and

unchallengeable testimony from a single witness” before entering

the habitual offender adjudication.

¶ 48 Jordan doesn’t challenge the admissibility of the expert’s

testimony itself. Instead, he claims that the trial court shouldn’t

have found the testimony reliable or credible and that it shouldn’t

have given the expert’s opinion as much weight as it did. But our

sufficiency review doesn’t entail determining the credibility of the

witnesses, resolving conflicts in the evidence, or deciding what

weight to give each piece of evidence. See People v. Sprouse, 983

P.2d 771, 778 (Colo. 1999). These determinations were squarely

within the trial court’s province as the fact finder in this case.

25

¶ 49 Jordan also contends that the evidence was insufficient

because certain information was present in some but not all the

records. His argument implies that the records for each case had to

match exactly to constitute sufficient evidence of his identity. But

that’s not what the governing test requires. As noted, the evidence

— when viewed as a whole and in the light most favorable to the

prosecution — must be sufficient and substantial to support a

conclusion by a reasonable mind that the defendant was convicted

of the felonies underlying the habitual criminal charges. See Moore,

226 P.3d at 1088. It’s true that some data — such as Jordan’s FBI

number — wasn’t present in every record. But applying the test

described above, we agree with the trial court’s conclusion that “it is

very clear that all of these records refer to the same person, to the

same Chadwick Jordan.”

¶ 50 Accordingly, we conclude that the prosecution presented

sufficient evidence for a reasonable mind to conclude beyond a

reasonable doubt that Jordan had three prior felony convictions,

which, in turn, supported his habitual offender adjudication. See

§ 18-1.3-801(2)(a)(I).

26

D. Jordan Wasn’t Entitled to an Extended

Proportionality Review

¶ 51 Lastly, Jordan argues that the trial court erred by not

conducting an extended proportionality review before imposing a

thirty-two-year prison sentence. We perceive no error.

1. Additional Background

¶ 52 Because the trial court adjudicated Jordan a habitual

offender, it sentenced him in accordance with section 18-1.3-801.

This provision requires a court to sentence a habitual offender to “a

term of four times the maximum of the presumptive range” for the

triggering offense. § 18-1.3-801(2)(a)(I)(A). Jordan’s conviction for

second degree assault under these circumstances, a class 4 felony

as modified for an extraordinary risk crime, carried a maximum

sentence of eight years in prison. See § 18-3-203(1)(b), (2)(b), (c)(II),

C.R.S. 2023; § 18-1.3-401(1)(a)(V)(A.1), (10)(a)-(b), C.R.S. 2023;

§ 18-1.3-406(2)(a)(I)(A), (II)(C), C.R.S. 2023. Consequently, the trial

court had to sentence him to a thirty-two-year term in the custody

of the DOC.

27

2. Applicable Law and Standard of Review

¶ 53 The United States and Colorado Constitutions prohibit

“extreme sentences that are ‘grossly disproportionate’ to the crime.”

Wells-Yates v. People, 2019 CO 90M, ¶ 5 (quoting Harmelin v.

Michigan, 501 U.S. 957, 1001 (1991) (Kennedy, J., concurring)); see

also U.S. Const. amend. VIII; Colo. Const. art. II, § 20.

¶ 54 If a defendant believes that he has been subjected to an

unconstitutionally disproportionate sentence, he may request (as

Jordan did here) a proportionality review in which a court will

compare the gravity or seriousness of his current and past offenses

— the triggering and predicate offenses, respectively — to the

harshness of the sentence imposed for the triggering offense. Wells-

Yates, ¶¶ 8, 23.

¶ 55 A proportionality review of a habitual criminal sentence

proceeds in two steps. Id. at ¶ 10. In step one, the court first

considers the gravity or seriousness of the triggering offense and the

predicate offenses in combination. Id. at ¶¶ 10-14, 23-24. The

court must then compare that to the harshness of the penalty

imposed for the triggering offense. Id. “[T]he inquiry is whether the

corresponding triggering offense and the predicate offenses,

28

considered together, are so lacking in gravity or seriousness as to

suggest that the sentence is grossly disproportionate.” Id. at ¶ 24.

¶ 56 Certain crimes — such as aggravated robbery, burglary,

accessory to first degree murder, and the sale or distribution of

narcotics — have been declared per se grave or serious under

Colorado law. Id. at ¶¶ 13, 65. For all other crimes, the court

engages in a fact-specific inquiry of the harm caused or threatened

to the victim or society and the culpability of the defendant to

determine whether the offense is grave or serious. Id. at ¶ 12.

¶ 57 Only if step one — the abbreviated proportionality review —

gives rise to an inference of gross disproportionality does a court

proceed to step two, which is an extended proportionality review.

Id. at ¶ 8. “In the rare situation in which the analysis advances to

step two,” the court should compare the defendant’s sentence for

the triggering offense to sentences for other offenses in the same

jurisdiction and sentences for the same offense in other

jurisdictions. Id. at ¶¶ 7, 15, 17.

¶ 58 We review de novo whether a defendant’s sentence is

unconstitutionally disproportionate. Id. at ¶ 35.

29

3. Discussion

¶ 59 Before imposing the sentence, the trial court conducted an

abbreviated proportionality review. It considered the seriousness of

Jordan’s triggering and predicate offenses along with the harshness

of his sentence. In doing so, the court accepted the prosecutor’s

recitation of facts underlying the offenses and found that those

offenses, in combination, were grave or serious. Specifically, the

court found that,

[t]aking into consideration the violence of at

least the prior assault [of a peace officer], the

harm to society inherent in the menacing, and

the extreme violence in this particular case, I

cannot find that taken together, in

combination, that the triggering offense and

the predicate offenses are so lacking in gravity

or seriousness that there should be an

inference that this [sentence] is grossly

disproportionate.

¶ 60 The court also assessed the harshness of Jordan’s

thirty-two-year sentence, noting, “We’re not talking about life, we

are talking about a sentence that is determinate and one for which

Mr. Jordan would eventually qualify for parole.”

¶ 61 After conducting this abbreviated proportionality review, the

court concluded that Jordan’s sentence didn’t raise an inference of

30

gross disproportionality, and that he was therefore not entitled to

an extended proportionality review.

¶ 62 Jordan argues that the trial court erred by concluding that his

thirty-two-year sentence wasn’t grossly disproportionate after only

conducting the abbreviated proportionality review. Because

Jordan’s triggering offense and his predicate offenses were grave or

serious, and his sentence isn’t unconstitutionally harsh, we

perceive no error.

a. Triggering Offense

¶ 63 We begin our analysis by considering whether Jordan’s

triggering offense — second degree assault — was grave or serious

under the circumstances. We conclude that it was.

¶ 64 As the trial court noted, the facts underlying Jordan’s second

degree assault conviction “were of extreme violence.” He struck the

victim multiple times in the head using a baseball bat as a deadly

weapon. After taking the victim to the ground, Jordan repeatedly

punched the victim for the next fifteen seconds. One eyewitness

testified that Jordan was acting with a “pure blackout rage” and

that he was beating the victim like “a sack of potatoes.” See People

v. Loris, 2018 COA 101, ¶ 12 (noting that whether an offense

31

involved violence is a factor in determining the offense’s gravity or

seriousness). Jordan’s conduct also caused significant bodily

harm, leaving the victim with multiple facial fractures and bleeding

in the brain. See Close v. People, 48 P.3d 528, 541-42 (Colo. 2002)

(concluding that second degree assault was grave or serious under

the facts of the case because the defendant’s acts, among other

things, “caused actual harm to the victims, including the infliction

of a swollen nose, facial and head lacerations, and bruises”),

abrogated on other grounds by Wells-Yates, ¶¶ 16, 55-66.

b. Conspiracy to Commit Menacing

¶ 65 The facts underlying Jordan’s first predicate offense —

conspiracy to commit menacing, Adams County Case No. 04CR29

— are likewise very serious.

3

According to the probable cause

3

Both the supreme court and divisions of our court have previously

designated felony menacing as a per se grave or serious offense.

See Close v. People, 48 P.3d 528, 538 (Colo. 2002), abrogated on

other grounds by Wells-Yates v. People, 2019 CO 90M, ¶¶ 16, 55-66,

65 n.18 (declining to address whether felony menacing is per se

grave or serious offense); see also People v. Stellabotte, 2016 COA

106, ¶ 59, aff’d, 2018 CO 66. We need not decide whether this

designation remains good law or whether it extends to conspiracy to

commit menacing because we conclude that the facts of that offense

make it grave or serious here.

32

affidavit for his arrest, Jordan entered a convenience store holding a

two-foot-long chrome bar, ordered everyone in the store to go to the

back of it, and called the cashier “a fucking bitch.” In her

statements to the police, the cashier “stated that she was extremely

scared” during this incident. This record shows that Jordan’s

intentional conduct placed the cashier and those present in the

store in fear for their safety and well-being. See Wells-Yates, ¶ 12.

c. Attempted Second Degree Assault of a Peace Officer

¶ 66 We next consider the facts of Jordan’s attempted second

degree assault of a peace officer conviction — Adams County Case

No. 06CR1675. In that case, Jordan physically attacked a deputy

who was conducting a check of his jail cell. According to the

probable cause affidavit, Jordan disobeyed an order asking him to

uncover a cell window, telling the requesting officer, “Fuck you and

fucking get away from my door.” After another officer entered the

cell and asked Jordan what was wrong with him, Jordan

approached the officer “in an aggressive manner with his fists

cl[e]nched and his chest puffed.” He then refused the officer’s

orders to place his hands on the wall and, instead, punched the

officer in the jaw.

33

¶ 67 Jordan contends that this offense wasn’t grave or serious

because there was no evidence that the officer suffered serious

bodily harm. In his words, “[a] punch to the face causing non

serious injury would be a misdemeanor, but for the fact the person

punched in the case was a jail officer.” That may be true, but it

doesn’t make Jordan’s conduct less grave or serious. Crimes

against peace officers are treated differently because “[t]he

legislature recognized that peace officers are placed in a position of

great risk and responsibility in enforcing laws, preventing crime and

the myriad of other tasks they are called upon to perform.” People

v. Montoya, 104 P.3d 303, 306 (Colo. App. 2004) (quoting People v.

Prante, 177 Colo. 243, 249, 493 P.2d 1083, 1086 (1972)).

¶ 68 Jordan’s conduct in the predicate assault case highlights

these concerns. In addition to physically assaulting one of the

officers, he also significantly escalated the encounter, resulting in a

dangerous situation. The altercation ended only after he was tased

and restrained by six officers. See Wells-Yates, ¶ 12 (in assessing

the harm and culpability factors to determine whether an offense is

grave or serious, we consider, among other things, the absolute

34

magnitude of the crime and whether the defendant acted with

intent or some other culpable mental state).

d. Possession with Intent

¶ 69 Finally, in Denver County Case No. 18CR1675, Jordan

pleaded guilty to possession with intent to manufacture or

distribute a controlled substance after cocaine was found in his car

during a traffic stop.

¶ 70 The probable cause affidavit for Jordan’s arrest stated that he

was in possession of two plastic bags and several glass vials that

contained a significant amount of cocaine. The affidavit further

stated that the manner in which the cocaine was packaged, coupled

with the amount, suggested that Jordan intended to sell or

distribute it, not merely use it himself. See id. at ¶ 69 (noting that a

drug offense may be grave or serious when a defendant possesses a

large quantity of drugs).

¶ 71 In addition to drugs, the police also found in Jordan’s car a

pair of brass knuckles, various parts and assembly instructions for

an AR-15 assault rifle, as well as a “Hannib[al] Lecter mask.”

Jordan contends that these additional facts shouldn’t be considered

in determining the gravity or seriousness of his drug offense

35

because they were part of the probable cause affidavit and had no

connection to his conviction.

¶ 72 Jordan, however, doesn’t provide any legal authority for his

sweeping proposition that a court may not rely on a probable cause

affidavit when considering the gravity or seriousness of a particular

offense. Cf. People v. Hargrove, 2013 COA 165, ¶¶ 16-17 (affirming

the trial court’s determination that a crime wasn’t grave or serious

after the trial court made that decision in reliance on the facts set

forth in the probable cause affidavit), abrogated on other grounds by

Wells-Yates, ¶¶ 16-17.

¶ 73 Moreover, while Jordan wasn’t convicted of any crime in

relation to the additional items that were found in his car — even

though he was charged, among other things, with four counts of

possession of a weapon by a previous offender — the discovery of

the brass knuckles and various AR-15 parts was still relevant

because it increased the gravity or seriousness of his conduct. See

Wells-Yates, ¶ 71 (“[W]e conclude that the gravity or seriousness of

possession with intent should be determined on a case-by-case

basis by considering the surrounding facts and circumstances of

the particular crime committed.”). This is especially true given that

36

the weapons were discovered after the police received information

that Jordan had allegedly “made comments to his [school] counselor

and campus staff about being in possession of an AR[-]15 and other

handguns and expressing ideations that he was in support of

military mass killings.”

¶ 74 Considering this record, then, we conclude that Jordan’s

triggering offense and his three predicate offenses are grave or

serious in combination.

e. Harshness of the Penalty

¶ 75 As we have already noted, the trial court imposed a sentence

that was established by the General Assembly. See People v.

Deroulet, 48 P.3d 520, 523 (Colo. 2002) (when considering the

harshness of the defendant’s sentence, “a great deal of deference is

due to legislative determinations regarding sentencing”), abrogated

on other grounds by Wells-Yates, ¶¶ 16-17. Further, as the trial

37

court noted, Jordan is eligible for parole.

4

See Wells-Yates, ¶ 14

(noting that we consider whether the defendant is parole eligible

when assessing the harshness of the sentence “because parole can

reduce the actual period of confinement and render the penalty less

harsh”).

¶ 76 When considered together and in concert with his parole

eligibility, then, the triggering and predicate offenses aren’t so

lacking in gravity or seriousness as to suggest that Jordan’s

sentence is unconstitutionally disproportionate to his crime and

criminal recidivism. See id. at ¶ 24. Accordingly, we perceive no

error in the trial court’s conclusion that an extended proportionality

review of Jordan’s sentence was unnecessary in this case.

III. Disposition

¶ 77 The judgment is affirmed.

JUDGE TOW and JUDGE GOMEZ concur.

4

In his opening brief, Jordan asserts that he will need to serve

seventy-five percent, or twenty-four years, of his sentence before

becoming parole eligible. The People argue, based on DOC records,

that he will be eligible for parole in 2037, after completing half of

his sentence. We need not decide which date is correct, because

the relevant inquiry focuses on if he is parole eligible, not what his

parole eligibility date will be. See Wells-Yates, ¶ 14.