22CA1589 Peo v Rojas 05-22-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 22CA1589 Weld County District Court No. 21CR876 Honorable Marcello A. Kopcow, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Theodore Anthony Rojas II,
Defendant-Appellant.
JUDGMENT AFFIRMED
Division A Opinion by JUDGE BROWN Dunn and Schock, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced May 22, 2025
Philip J. Weiser, Attorney General, Katharine Gillespie, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Daniel J. Sequeira, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant ¶1 Defendant, Theodore Anthony Rojas II, appeals the judgment
of conviction entered on a jury verdict finding him guilty of two
counts of felony menacing. Rojas contends that (1) insufficient
evidence supports these convictions; (2) the district court
incorrectly instructed the jury on the definition of “threat”; (3) the
prosecutor committed misconduct; and (4) the court erred by
identifying the weapon used to menace as a “tomahawk.” We
affirm.
I. Background
¶2 The evidence presented at a three-day trial allowed the jury to
find the following facts.
¶3 Rojas and his cousins, Ernest and Felix Rojas,1 disputed
which of them owned certain real property located in Weld County.
In November 2020, Ernest evicted Rojas from the property and
obtained a protection order against him.
¶4 One day in April 2021, Felix arrived at the property and saw
Rojas attempting to pull a camper onto it. Rojas had also moved
his things into a building on the property. Felix called 911 to report
1 Because they share a last name with Rojas, we refer to Ernest and
Felix by their first names and mean no disrespect by doing so.
1 that Rojas was trespassing. While Felix was on the phone with the
911 operator, Rojas went inside the building and came back out
with a firearm on his hip.2
¶5 Deputies Christopher Dalzell and Alex Fischer responded to
the call, and their body cameras captured their interaction with
Rojas. At one point after the deputies told Rojas he had to leave the
property, Rojas picked up a hatchet3 and a machete. He walked
toward the deputies with the hatchet raised to his shoulder while
making statements like, “This is my house, this is where I live, this
is my shit, and if you shoot me, you shoot me.”
¶6 For Rojas’ conduct that day, the People charged him with
eleven crimes, including, as relevant here, two counts of felony
menacing — one count each for Deputies Dalzell and Fischer. The
jury found Rojas guilty of both counts of felony menacing, and the
2 Deputies later learned that the firearm was an unloaded BB gun. 3 Rojas argues that the axe-like weapon is a “hatchet,” which he
says has a smaller head and a shorter, thicker handle, rather than a “tomahawk,” which he says has a head with a protrusion and a longer, thinner handle. The prosecution referred to the weapon as a tomahawk throughout trial. We will refer to the weapon as a hatchet unless we are quoting the record.
2 court sentenced him to two concurrent six-year sentences in
community corrections.
II. Sufficiency of the Evidence
¶7 Rojas contends that the prosecution presented insufficient
evidence to sustain his felony menacing convictions. We are not
persuaded.
A. Standard of Review and Applicable Law
¶8 “We review the record de novo to determine whether the
evidence before the jury was sufficient both in quantity and quality
to sustain the defendant’s conviction.” Clark v. People, 232 P.3d
1287, 1291 (Colo. 2010). 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. (quoting People v. Bennett, 515 P.2d 466, 469 (1973)).
¶9 In doing so, we give the prosecution the benefit of every
reasonable inference that may be fairly drawn from the evidence.
See id. at 1292; People v. Gonzales, 666 P.2d 123, 128 (Colo. 1983).
We may not reweigh the evidence or reassess the credibility of the
3 witnesses. People v. Sharp, 104 P.3d 252, 256 (Colo. App. 2004).
Nor may we “act as a thirteenth juror” and set aside a verdict
because we might have drawn a different conclusion had we been
the trier of fact. People v. McIntier, 134 P.3d 467, 471 (Colo. App.
2005).
B. The Prosecution Presented Sufficient Evidence to Support the Felony Menacing Convictions
¶ 10 “A person commits the crime of menacing if, by any threat or
physical action, he or she knowingly places or attempts to place
another person in fear of imminent serious bodily injury.”
§ 18-3-206(1), C.R.S. 2021. At the time of Rojas’ offense, menacing
was a class 5 felony if committed “[b]y the use of a deadly weapon.”
§ 18-3-206(1)(a), C.R.S. 2021.
¶ 11 Rojas contends that the prosecution failed to prove that he
(1) made a “threat” or took “physical action” rising to the level of a
threat; (2) “knowingly” placed or attempted to place the deputies in
fear of serious bodily injury; or (3) “used” a deadly weapon. Viewing
the evidence in the light most favorable to the prosecution, we reject
these contentions.
4 1. Additional Background
¶ 12 The prosecution’s theory of the case was that Rojas menaced
the deputies with the hatchet. At trial, the prosecution presented
the bodycam footage of Deputies Dalzell and Fischer, which showed
the following:
• When the deputies contacted him, Rojas was wearing a
“nylon-styled law enforcement duty belt” with a firearm on
his hip.
• Throughout the encounter, Rojas made statements to the
deputies such as, “If we want to get it on, we can get it on”;
“I’m not afraid of anyone or anything”; “I’m down to die for
the shit that I believe in”; “Nobody is losing their life”; and
“We can see who is the better shot.”
• Rojas picked up some plastic tubing off the ground, started
swinging it around, and refused the deputy’s initial request
to drop it. Rojas then walked over to a tree stump, picked
up the hatchet and machete, and said, “This is what you
don’t want me to pick up.”
• When the deputies told Rojas to put down the weapons,
Rojas threw the machete at the stump, swung the hatchet
5 at the stump, and told the deputies, “I am trying to save
your fucking life.” Rojas then told the deputies, “I could
pick up whatever I want to, I’m not going to hurt you, but
I’m not going to let you handcuff me either.”
• Several minutes later, when Deputy Fischer told Rojas he
needed to leave the property, Rojas responded, “I’m not
leaving.” Rojas returned to the tree stump, picked up the
hatchet again, raised it to his shoulder, and began walking
toward the deputies while saying, “This is my house, this is
where I live, this is my shit, and if you shoot me, you shoot
me.” Deputy Fischer pulled out his firearm, backed away
from Rojas, and said, “Don’t do anything crazy.” Rojas then
put the hatchet down on a table.
¶ 13 Deputy Dalzell testified as follows:
• He moved back and repositioned himself when Rojas picked
up the hatchet because Rojas could throw the hatchet at
that distance.
• Rojas’ repeated statements that he did not want to hurt the
deputies did not lower his concern, while Rojas’ other
statements and actions “put [him] onto a higher alert.”
6 • He felt threatened by “[t]he act of [Rojas] continuously
picking [the weapons] up after we had asked him to not and
then, just the statements he was making of, you know, you
shouldn’t be afraid of referencing the plastic tubes and
then, saying this is what you should be afraid of and
ultimately, picking up the tomahawk and the machete from
the stump.”
¶ 14 Deputy Fischer testified as follows:
• Rojas’ statements made him concerned that Rojas was
going to draw his gun or physically engage with the
deputies.
• After Rojas said he was not going to let the deputies
handcuff him, the deputy was concerned Rojas would
become combative.
• He drew his weapon because he was concerned Rojas would
use the hatchet against the deputies if they tried to remove
him from the property.
• Rojas held the hatchet “positioned in a way that he could
have easily hit us with it and was walking in our direction.”
He felt threatened by how Rojas held the hatchet, but the
7 machete in Rojas’ other hand did not concern him as much
because it was pointed down.
2. “Threat”
¶ 15 Rojas contends that the prosecution presented insufficient
evidence to establish he threatened the deputies. We are not
¶ 16 To prove that a person made a threat, the prosecution must
prove that the person “expressed a purpose or intent to cause injury
or harm” to another person or their property. People v. Denhartog,
2019 COA 23, ¶¶ 15-24; see also People v. Shawn, 107 P.3d 1033,
1035 (Colo. App. 2004) (“A threat is a statement of purpose or
intent to cause injury or harm to another person.”). A threat need
not be verbal; it may be made through nonverbal, expressive
conduct that is intended to communicate an intent to harm.
Denhartog, ¶ 28.
¶ 17 Here, Rojas refused the deputies’ requests to leave the
property, repeatedly indicated he was ready to be physically
combative with the deputies or to die for his property, told the
deputies he was not leaving the property, and then picked up the
hatchet and machete and advanced toward the deputies with the
8 hatchet raised at his shoulder. We conclude that Rojas’ statements
and physical gestures were collectively sufficient for a reasonable
jury to find beyond a reasonable doubt that Rojas expressed a
purpose or intent to cause injury or harm to the deputies. See
§ 18-3-206, C.R.S. 2021; Denhartog, ¶¶ 24, 28.
¶ 18 We are not persuaded otherwise by Rojas’ argument that he
did not threaten the deputies because he repeatedly told them that
he did not wish to harm them. The bodycam footage shows that
Rojas’ statements purportedly expressing a lack of intent to harm —
“I’m not trying to hurt you” and “I don’t want anybody to get hurt”
— were contradicted by Rojas’ other statements and actions. The
jury viewed the bodycam footage and heard the witnesses’
testimony, and its verdict reflects that it discounted Rojas’
statements that he was not trying to hurt the deputies and credited
Rojas’ threatening statements and actions. It was well within the
jury’s province to do so. See People v. Pitts, 13 P.3d 1218, 1221
(Colo. 2000) (“It is the function of the [trier of fact], and not the
reviewing court, to weigh evidence and determine the credibility of
the witnesses.”); People v. Kessler, 2018 COA 60, ¶ 12 (“[A] fact
finder is not required to accept or reject a witness’s testimony in its
9 entirety; it may believe all, part, or none of a witness’s
testimony. . . .”).
¶ 19 Nor are we persuaded by Rojas’ argument that his actions with
the hatchet could not express an intent to injure or harm. He relies
on Denhartog, ¶ 28, to argue that physical action alone cannot
constitute a threat. But we do not read Denhartog so narrowly. In
that case, a division of this court held that evidence the defendant
had suddenly and without warning reversed his car into an officer’s
motorcycle during a traffic stop was insufficient to prove he had
threatened the officer. Id. at ¶ 29. It reasoned that “there was no
expression of any kind of an intent to harm the officer” beyond the
conduct that actually caused harm — hitting the officer with his
car. Id. at ¶¶ 25-28. It rejected the People’s assertion that any act
that placed a person at risk constituted a threat. Id. at ¶ 23. But
the Denhartog division did not hold that a threat must be conveyed
verbally; on the contrary, the division explained that its holding did
not “foreclose an interpretation of ‘threaten’ that includes nonverbal
communication of an intent to harm.” Id. at ¶ 28.
¶ 20 In any event, unlike the defendant in Denhartog, Rojas made
verbal statements while engaging in physical action that, taken
10 together, could reasonably be interpreted as threatening the
deputies. Viewing the evidence in the light most favorable to the
prosecution, we conclude the evidence was sufficient to establish
that Rojas menaced the deputies by “threat or physical action.”
§ 18-3-206, C.R.S. 2021; see Clark, 232 P.3d at 1291.
3. “Knowingly”
¶ 21 Rojas also contends that the prosecution failed to establish he
knowingly placed or attempted to place the deputies in fear of
imminent serious bodily injury. We are not persuaded.
¶ 22 Felony menacing is a general intent crime that requires the
defendant to act “knowingly” — that is, the defendant must be
“aware that his conduct is practically certain to cause the result.”
§ 18-1-501(6), C.R.S. 2024; see also People v. Crump, 769 P.2d 496,
498 (Colo. 1989). Direct evidence of the defendant’s awareness is
not necessary; instead, “the defendant’s subjective awareness may
be inferred from his conduct and the surrounding circumstances.”
People v. Manzanares, 942 P.2d 1235, 1239 (Colo. App. 1996),
abrogated on other grounds by Riley v. People, 266 P.3d 1089, 1094
(Colo. 2011). And “what the victim saw or heard, and how the
victim reacted, are relevant considerations in determining whether
11 [the] defendant had the requisite intent to place the victim in fear.”
Id.
¶ 23 Considering Rojas’ verbal threats, his physical actions, and
the deputies’ reactions, we conclude that there was sufficient
evidence for a reasonable jury to find that Rojas was “aware that his
conduct [wa]s practically certain to cause” the deputies to be afraid.
§ 18-1-501(6); see Manzanares, 942 P.2d at 1239.
¶ 24 But Rojas argues that he could not have “knowingly” menaced
the deputies because (1) he recanted any threats he may have
made, and (2) the tone of the encounter was not threatening.
Again, the jury viewed the bodycam footage, weighed the evidence,
and reached a different conclusion about Rojas’ conflicting
statements and the tone of the encounter. See Sharp, 104 P.3d at
256. Rojas effectively asks us to reweigh the evidence, which we
will not do. See id.
¶ 25 Viewing the evidence in the light most favorable to the
prosecution, we conclude that the prosecution presented sufficient
evidence to establish the “knowingly” element of menacing.
12 4. “Use” of a “Deadly Weapon”
¶ 26 Rojas next contends the prosecution failed to present
sufficient evidence that he used a deadly weapon. He argues that
the hatchet was a tool and that simply holding it did not amount to
using a deadly weapon. We are not persuaded.
¶ 27 A deadly weapon includes “[a] knife, bludgeon, or any other
weapon, device, [or] instrument . . . whether animate or inanimate,
that, in the manner it is used or intended to be used, is capable of
producing death or serious bodily injury.” § 18-1-901(3)(e)(II),
C.R.S. 2021. At the time of Rojas’ offense, serious bodily injury was
defined as “bodily injury which, either at the time of the actual
injury or at a later time, involves a substantial risk of death, a
substantial risk of serious permanent disfigurement, a substantial
risk of protracted loss or impairment of the function of any part or
organ of the body, or breaks, fractures, or burns of the second or
third degree.” § 18-1-901(3)(p), C.R.S. 2021. In the context of
menacing, “use of a deadly weapon” “includes the act of holding a
weapon in the presence of another in a manner that is practically
certain to cause the other person to fear for [their] safety.” People v.
Segura, 923 P.2d 266, 269 (Colo. App. 1995).
13 ¶ 28 Regardless of whether the hatchet was a tool or not, it could
be used to cause death or serious bodily injury. And case law
makes clear that merely holding a deadly weapon can constitute
“use” of that weapon depending on the circumstances. See id.; see
also People v. Dist. Ct., 926 P.2d 567, 571 (Colo. 1996) (“[T]he
phrase ‘use of a deadly weapon’ is broad enough to include the act
of holding a weapon in the presence of another in a manner that
causes the other person to fear for his safety, even if the weapon is
not pointed at the other person.”). Here, Rojas “simply holding” the
hatchet at his shoulder — a position from which he easily could
have thrown or swung it at the deputies — occurred in the context
of him walking toward the deputies and making threatening
statements. Rojas did not have to point the hatchet at the deputies
or gesture with it to “use” it to menace them. See Dist. Ct., 926
P.2d at 571; Segura, 923 P.2d at 269.
¶ 29 Viewing the evidence collectively and in the light most
favorable to the prosecution, we conclude that the prosecution
presented sufficient evidence to prove that Rojas menaced the
deputies “[b]y the use of a deadly weapon.” § 18-3-206(1)(a), C.R.S.
2021; see Clark, 232 P.3d at 1291.
14 III. Jury Instruction
¶ 30 Rojas contends that the district court erred by declining his
proposed jury instruction on the definition of “threatened” or
“threat.” We disagree.
A. Standard of Review
¶ 31 “We review a trial court’s decision whether to give a particular
jury instruction for an abuse of discretion.” People v. Cline, 2022
COA 135, ¶ 32. A court abuses its discretion when its ruling
results in a misstatement of the law or is manifestly arbitrary,
unreasonable, or unfair. People in Interest of J.G., 2016 CO 39,
¶ 33. We review de novo whether the jury instructions, considered
as a whole, correctly state the law. Id.; McDonald v. People, 2021
CO 64, ¶ 54. So long as the court correctly instructs the jury on
the applicable law, it “has broad discretion to determine the form
and style of jury instructions.” McDonald, ¶ 54 (quoting Day v.
Johnson, 255 P.3d 1064, 1067 (Colo. 2011)).
B. Additional Background
¶ 32 During the jury instruction conference, defense counsel asked
the district court to instruct the jury that “threaten” meant that
“the Defendant expressed a purpose or an intent to cause serious
15 bodily injury to the Officer or the Officer’s property.” (Emphasis
added.) Counsel reasoned that the menacing charges required
proof that Rojas placed or attempted to place the deputies in fear of
imminent serious bodily injury, so the definition of “threaten”
should include reference to serious bodily injury.
¶ 33 The court declined to include “serious bodily injury” in the
definition of “threatened” or “threat” and instead instructed the jury
that those terms meant “a statement or declaration of purpose or
intent to cause injury or harm to the person, property, or rights of
another, by the commission of an unlawful act.” The court also
instructed the jury as to the elements of menacing:
1. That Theordore Anthony Rojas II,
2. in the State of Colorado, at or about the date and place charged,
3. knowingly,
4. by any threat or physical action,
5. placed or attempted to place another person in fear of imminent serious bodily injury.
¶ 34 And the court instructed the jury on the definition of “serious
bodily injury” consistent with the statute. See supra Part II.B.4 and
infra Part III.C.
16 C. The District Court Did Not Err by Denying Rojas’ Tendered Instruction
¶ 35 Rojas contends that the district court erred by denying his
tendered instruction on the definition of “threatened” or “threat,”
arguing that the instruction the court gave lowered the
prosecution’s burden of proof.
¶ 36 To the extent Rojas argues that the court erred by instructing
the jury that a “threat” requires an expression of an intent or
purpose to cause “bodily injury,” we reject that argument because
the court gave no such instruction. We acknowledge that the court
said during the jury instruction conference that it would instruct
the jury that the definition of “threatened” or “threat” “means a
statement or declaration of purpose or intent to cause bodily injury
or harm of the person, property or rights of another by the
commission of an unlawful act.” (Emphasis added.) But the
instruction the court actually gave the jury did not use the term
“bodily injury.”
¶ 37 To the extent Rojas contends that the court nonetheless
should have instructed the jury that a “threat” requires an
17 expression of intent or purpose to cause “serious bodily injury,” we
perceive no error.
¶ 38 There is no statutory definition of “threat” for purposes of
felony menacing. Nor is there a pattern jury instruction defining
the term. But the Colorado Supreme Court has held, in this
context, that “[a] threat is a statement of purpose or intent to cause
injury or harm to the person, property, or rights of another, by the
commission of an unlawful act.” People v. Hines, 780 P.2d 556, 559
(Colo. 1989).
¶ 39 The district court used the supreme court’s definition of
“threat” in its jury instruction. It correctly instructed the jury on
the elements of felony menacing, including the requirement that
Rojas “placed or attempted to place another person in fear of
imminent serious bodily injury.” See COLJI-Crim. 3-2:30 (2022). It
instructed the jury on the definition of “serious bodily injury” as
defined in the statute. See § 18-1-901(3)(p), C.R.S. 2021. And it
instructed the jury that “[n]o single instruction describes all the law
which must be applied; the instructions must be considered
together as a whole.”
18 ¶ 40 Collectively, these instructions accurately stated the law and
required the jury to find beyond a reasonable doubt that Rojas’
threats or physical actions knowingly placed or attempted to place
the deputies in fear of imminent serious bodily injury. See J.G.,
¶ 33; McDonald, ¶ 54. And we presume the jurors followed these
instructions. People v. Garcia, 2012 COA 79, ¶ 20 (“We presume
that the jury followed the court’s instructions, absent evidence to
the contrary.”). We fail to see how the instructions, when read
together as they must be, would have allowed the jury to convict
Rojas of menacing if it found that his threats and actions placed the
deputies in fear of only “bodily injury.” Thus, we conclude that the
instructions did not lower the prosecution’s burden of proof and
that the court did not abuse its discretion by denying Rojas’
proposed instruction. See McDonald, ¶ 54.
IV. Prosecutorial Misconduct
¶ 41 Rojas contends that the district court erred by allowing the
prosecutor to commit misconduct during closing argument. We are
not persuaded.
19 A. Standard of Review and Applicable Law
¶ 42 We engage in a two-step analysis when reviewing claims of
prosecutorial misconduct. Wend v. People, 235 P.3d 1089, 1096
(Colo. 2010). First, we determine whether the prosecutor’s conduct
was improper based on the totality of the circumstances. Id.
Second, if the conduct was improper, we decide whether it warrants
reversal under the proper standard. Id.
¶ 43 We review the trial court’s ruling on prosecutorial misconduct
for a “gross abuse of discretion resulting in prejudice and a denial
of justice.” People v. Camarigg, 2017 COA 115M, ¶ 39 (quoting
People v. Garner, 2015 COA 175, ¶ 26). If the defendant objected at
trial, we review for harmless error. People v. Sauser, 2020 COA
174, ¶ 80. “‘Under this standard, reversal is required only if the
error affects the substantial rights of the parties’ by substantially
influencing the verdict or affecting the fairness of the trial.” Id.
(quoting Hagos v. People, 2012 CO 63, ¶ 12).
¶ 44 While prosecutors can use every legitimate means to bring
about a just conviction, they have a duty to avoid using improper
methods designed to obtain an unjust result. Domingo-Gomez v.
People, 125 P.3d 1043, 1048 (Colo. 2005). And prosecutors cannot
20 misstate or misinterpret the law. People v. McMinn, 2013 COA 94,
¶ 62. Still, prosecutors have “wide latitude in the language and
style” used to convey their arguments. Id. at ¶ 60. And “because
arguments delivered in the heat of trial are not always perfectly
scripted, reviewing courts accord prosecutors the benefit of the
doubt when their remarks are ambiguous or simply inartful.”
People v. Samson, 2012 COA 167, ¶ 30. We evaluate claims of
improper argument “in the context of the argument as a whole and
in light of the evidence before the jury.” McMinn, ¶ 60.
B. “Knowingly”
¶ 45 Rojas contends that the prosecutor committed misconduct
during closing argument by misstating the definition of “knowingly.”
We perceive no reversible error.
¶ 46 As discussed, a person acts “knowingly” when they are aware
their conduct is practically certain to cause the result.
§ 18-1-501(6). During closing argument, the prosecutor told the
jury that “knowingly” means
that [Rojas] is aware that his conduct is practically certain to cause a result and really what this means, ladies and gentlemen, is that his behavior here was not an accident. He did not accidently pick up that tomahawk and put
21 it on his shoulder, raise it to his shoulder, as he walked towards deputies —
Defense counsel objected. The district court overruled the
objection, and the prosecutor continued, “[Rojas] did not accidently
pick that tomahawk up and raise it to his shoulder when he was
placing those deputies in fear of imminent serious bodily
injury . . . . He knew what he was doing and he knew that his
actions would cause the result of these charges.”
¶ 47 Rojas argues that by defining “knowingly” as “not an accident,”
the prosecutor misstated the law. Even if we assume that is true,
we conclude that any error by the court in not sustaining defense
counsel’s objection was harmless. See Sauser, ¶ 80. The
prosecutor’s inartful statements were fleeting and bookended by
accurate statements of the law. And the court instructed the jury
on the correct definition of “knowingly.” Accordingly, we conclude
that any error was harmless because the prosecutor’s statements
did not substantially influence the verdict or affect the fairness of
the trial. See id.
22 C. “Threat”
¶ 48 Rojas contends that the prosecutor committed misconduct
during closing argument by misstating the definition of “threat.”
We are not persuaded.
¶ 49 During rebuttal closing argument, the prosecutor said,
[Defense counsel], during her jury selection, she asked you, can holding a weapon, just holding the weapon, constitute a threat and many of the jurors in this panel said yes. Holding a weapon can constitute a threat, because —
Defense counsel objected, arguing that the prosecutor misstated the
law and that there was a specific definition for “threat.” The court
overruled the objection and instructed the jurors that they “simply
are to use the instructions and definitions [the court] provided to
[them] in writing.” The prosecutor continued, “The answer to that
was holding a weapon constitutes a threat, because why else would
you arm yourself that way?”
¶ 50 Rojas argues that the prosecutor improperly characterized “the
mere act of holding a weapon as a threat, absent the additional
necessary context of an expression of an intent to harm.” But the
prosecutor also repeatedly told the jury that a “threat” could be
23 “verbal threats” or “physical action” or both. The prosecutor argued
that Rojas’ conduct satisfied the threat element based on “the fact
that [Rojas] verbally and physically [made] threats against officers
to place them in fear of that serious bodily injury.”
¶ 51 Viewed in the context of the entire argument, the prosecutor
did not urge the jury to conclude that merely holding the hatchet
amounted to a threat. Even if she had, that conclusion is not
foreclosed by existing law. See Denhartog, ¶ 28. But instead, the
prosecutor asked the jury to find a threat based on the combination
of Rojas’ verbal statements and physical acts. The prosecutor’s
argument was reasonable based on the evidence. See People v.
Walters, 148 P.3d 331, 334 (Colo. App. 2006) (“During closing
argument, a prosecutor has wide latitude and may refer to the
strength and significance of the evidence, conflicting evidence, and
reasonable inferences that may be drawn from the evidence.”).
Accordingly, we conclude that the district court did not grossly
abuse its discretion by overruling defense counsel’s objection. See
Camarigg, ¶ 39.
24 V. The Court’s Statement to the Jury
¶ 52 Finally, Rojas contends that the district court erred by telling
the jury that the weapon Rojas used to menace the deputies was a
“tomahawk.” We are not persuaded.
¶ 53 Because Rojas did not object to the district court’s
characterization of the weapon as a tomahawk, we review his
contention for plain error. See Garcia v. People, 2019 CO 64, ¶ 3.
“An error is plain if it is obvious and substantial and so undermines
the fundamental fairness of the trial itself as to cast serious doubt
on the reliability of the judgment of conviction.” People v. Rediger,
2018 CO 32, ¶ 48. For an error to be obvious, it must contravene a
statute, a well-settled legal principle, or established Colorado case
law. Campbell v. People, 2020 CO 49, ¶ 25.
¶ 54 After closing arguments, the district court read the verdict
forms to the jury. The verdict forms for the menacing charges
instructed the jury to answer the following interrogatory if it found
Rojas guilty of menacing: “Did the Defendant commit Menacing by
the use of a firearm, knife, or bludgeon?” After reading the
25 interrogatory, the court said, “Of course, we’re talking about the
tomahawk here . . . . ”
C. The District Court Did Not Err by Referring to the Menacing Weapon as a “Tomahawk”
¶ 55 Rojas contends that the district court erred by “endors[ing] the
prosecution’s description” of the weapon used as a “tomahawk”
because “calling the tool a ‘tomahawk’ imbued it with” the negative
associated meanings of the word, including “a potentially deadly
weapon of war.” Even if we assume the court erred by calling the
weapon a tomahawk instead of a hatchet, we conclude that any
error was neither obvious nor substantial. See People v. Morales,
2014 COA 129, ¶ 38 (plain error must be “both obvious and
substantial”).
¶ 56 To begin, Rojas cites no statute, rule, or case law that would
support his contention that calling the hatchet a tomahawk was
error — let alone plain error. See Campbell, ¶ 25. Indeed, Rojas
does not cite a single legal authority in this section of his opening
brief, save for a citation to the plain error standard of review.
C.A.R. 28(a)(7)(B) (explaining that the appellant’s opening brief must
contain “citations to the authorities” on which the appellant relies).
26 ¶ 57 Moreover, the prosecution charged Rojas with felony menacing
and specified in the complaint and information that the weapon
used was a “tomahawk.” The court read the charges, as filed, to the
potential jurors before trial began. Throughout trial, the
prosecutors, the prosecution witnesses, and defense counsel at
times referred to the weapon as a tomahawk. And Rojas does not
direct us to any part of the record where he objected to such
references.
¶ 58 Under these circumstances, we see no reason why the court
would have hesitated to use the word tomahawk when helping the
jury associate the verdict forms with the charges. Nor do we see
how such a brief reference undermined the fundamental fairness of
the trial when the jury had heard the weapon consistently referred
to that way throughout trial. See Rediger, ¶ 48. Thus, we conclude
that any error was not plain.
VI. Disposition.
¶ 59 We affirm the judgment of conviction.
JUDGE DUNN and JUDGE SCHOCK concur.