People v. Casey Simms

• Court: Colorado Court of Appeals
• Decided: June 18, 2026
• Docket: 24CA0166
• Status: Unpublished

Opinion

The summaries of the Colorado Court of Appeals published opinions constitute no part of the opinion of the division but have been prepared by the division for the convenience of the reader. The summaries may not be cited or relied upon as they are not the official language of the division. Any discrepancy between the language in the summary and in the opinion should be resolved in favor of the language in the opinion.

SUMMARY June 18, 2026

2026 COA 51

No. 24CA0166, People v. Casey Simms — Crimes — Menacing — By Use of Firearm, Knife, or Bludgeon — Fist; Criminal Law — Model Jury Instructions — Presumption of Innocence, Burden of Proof, and Reasonable Doubt

In this direct criminal appeal, a division of the court of appeals

considers the novel issue of whether a fist can be a “bludgeon” or

“simulated bludgeon” under section 18-3-206, C.R.S. 2025, the

felony menacing statute.

The majority on this issue (Moultrie and Taubman, JJ.)

concludes that, as a matter of law, a fist cannot be a “bludgeon” or

“simulated bludgeon” under the felony menacing statute because

that interpretation is inconsistent with the statutory scheme,

unsupported by the case law on which the People rely, and contrary

to the statute’s recent legislative history. The majority thus

concludes that the trial court erred when, in response to a jury deliberation question, the court declined to clarify that a fist cannot

be a bludgeon or simulated bludgeon and that, under the

circumstances, the court’s error was not harmless. Accordingly, the

majority reverses the defendant’s felony menacing conviction. The

dissent on this issue (Bernard, J.) concludes that while the plain

and ordinary meaning of the word “bludgeon” does not include a

fist, the trial court properly instructed the jury to give “bludgeon” its

“ordinary meaning.”

The division also considers whether the trial court erred by

using the 2022 model criminal jury instruction on reasonable

doubt. The majority on this issue (Moultrie and Bernard, JJ.)

concludes that, consistent with the reasoning articulated by other

divisions of this court in People v. Melara, 2025 COA 48, People v.

Schlehuber, 2025 COA 50, and People v. Berumen, 2025 COA 93,

the court did not err. The dissent on this issue (Taubman, J.)

would hold that the instruction’s “real possibility” language

impermissibly lowered the prosecution’s burden of proof.

Finally, the division considers the defendant’s challenge to the

court’s award of restitution. Because the division concludes that

the findings supporting the court’s restitution award are insufficient, the division vacates the award and remands for further

proceedings regarding the determination of restitution. COLORADO COURT OF APPEALS 2026 COA 51

Court of Appeals No. 24CA0166 Jefferson County District Court No. 23CR583 Honorable Norma A. Sierra, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Michael Casey Simms,

Defendant-Appellant.

JUDGMENT REVERSED, ORDER VACATED, AND CASE REMANDED WITH DIRECTIONS

Division III Opinion by JUDGE MOULTRIE Bernard*, J., concurs in part and dissents in part Taubman*, J., concurs in part and dissents in part

Announced June 18, 2026

Philip J. Weiser, Attorney General, Frank R. Lawson, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Mark Evans, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S. 2025. ¶1 Defendant, Michael Casey Simms,1 appeals the judgment of

conviction entered after a jury found him guilty of felony menacing.

¶2 Simms’s charges resulted from a multiple-day altercation with

his intimate partner. The case proceeded to a jury trial. Over

Simms’s counsel’s objection, the court instructed the jury using the

2022 model criminal jury instruction on reasonable doubt.

Additionally, during the deliberation phase, the jury submitted a

question to the court inquiring whether a fist could be a “bludgeon”

as that term is used in section 18-3-206, C.R.S. 2025, the felony

menacing statute. The court declined to clarify whether a fist can

be a bludgeon under the statute. Instead, it responded to the jury’s

question by instructing the jurors to give that term its “plain and

ordinary meaning.” Of the five offenses charged in the complaint

and information, the jury convicted Simms of three — felony

menacing and two misdemeanor assault charges. He was later

sentenced and ordered to pay nearly $9,500 in restitution to the

Crime Victim Compensation Board (CVCB) for money the

1 Some trial court orders and documents show Simms’s last name

as “Casey-Simms,” and the People also show his last name as “Casey-Simms.” However, the defense’s appellate briefing refers to him as “Mr. Simms,” so we similarly refer to him as “Simms.”

1 prosecution asserted the CVCB expended related to the victim’s

injuries.

¶3 Simms contends that the court erred by (1) instructing the

jury using the 2022 model criminal jury instruction defining

“reasonable doubt,” which he asserts lowered the prosecution’s

burden of proof; (2) not adequately instructing the jury when it

asked a question about an element of felony menacing; and

(3) entering an order requiring him to pay restitution to the CVCB

when the prosecution failed to substantiate the requested amount

by providing the information required by section 18-1.3-603(10),

C.R.S. 2025.

¶4 Our decision is split regarding Simms’s first two contentions of

error. Judge Bernard and I agree that the trial court didn’t err by

instructing the jury using the 2022 model jury instruction on

reasonable doubt; Judge Taubman diverges from our analysis and

conclusions on the limited issue of whether the inclusion of the

“real possibility” language in that instruction impermissibly lowered

the prosecution’s burden of proof. As detailed in his partial dissent,

he concludes that it did.

2 ¶5 Conversely, Judge Taubman agrees with me that the trial

court erred by not adequately responding to a jury deliberation

question about an element of felony menacing. In reaching our

conclusion with respect to Simms’s second contention, Judge

Taubman and I consider the novel issue of whether a fist can be a

“bludgeon” or “simulated bludgeon” under the felony menacing

statute. Because the two of us agree that, as a matter of law, a fist

can’t be considered a “bludgeon” or “simulated bludgeon” under

that statute, and that the court’s failure to provide the jury with an

additional instruction stating as much wasn’t harmless, we agree

with Simms that his felony menacing conviction must be reversed.

Judge Bernard explains his disagreement with our reasoning in his

partial dissent regarding this contention of error.

¶6 However, we all agree that the court’s award of restitution

must be vacated because its findings supporting the award are

insufficient. Specifically, it’s unclear whether the award was

predicated on Simms’s felony menacing conviction (which we are

reversing), Simms’s misdemeanor convictions (which he doesn’t

contest on appeal), or some combination thereof. And because the

issue may arise on remand, we briefly discuss the information that

3 the prosecution must provide to the court before the court can

afford the prosecution the benefit of the rebuttable presumption in

section 18-1.3-603(10).

I. Background

¶7 Simms and his girlfriend, K.B., were staying in a motel when

they began to argue. The argument culminated in Simms punching

K.B., causing a black eye.

¶8 The next day, when K.B. returned to the motel room after

work, the situation escalated again. Throughout the evening, K.B.

periodically left the motel room or locked herself in the motel room

bathroom to seek refuge from Simms. At one point, Simms

breached the bathroom door after K.B. had locked herself inside,

breaking the door in half.

¶9 Simms’s testimony at trial differed from K.B.’s regarding the

extent to which Simms physically assaulted K.B. on the second

evening. K.B. testified that Simms assaulted her multiple times,

including by slapping, punching, kicking, and choking her. K.B.

also recounted Simms repeatedly threatening her verbally and with

a pocketknife. Although Simms admitted punching K.B., resulting

in her black eye on the first night, and “getting physical” on the

4 second night,2 he denied choking K.B. or threatening her with a

pocketknife on the second night.

¶ 10 The following morning, K.B. called her grandmother, who lived

in Utah, and she picked up K.B. and took her back to Utah after

learning that K.B. and Simms had been fighting. After arriving in

Utah, K.B. sought medical treatment for her injuries, and hospital

staff reported the domestic dispute to law enforcement officers.

Local police interviewed K.B. at the hospital in Utah and referred

the case to police in Lakewood for further investigation.

¶ 11 Simms was tried by a jury on five charges: second degree

kidnapping (seized and carried), felony menacing, felony second

degree assault (strangulation), and two counts of misdemeanor

third degree assault (one for the black eye on the first night and the

other for injuries caused on the second night). To elevate the

menacing charge to a felony, the prosecution had to prove that

Simms committed menacing “by the use of a firearm, knife, or

bludgeon or a simulated firearm, knife, or bludgeon.” § 18-3-206.

2 Based on these admissions, Simms conceded guilt on the two

misdemeanor assault charges.

5 The prosecution’s theory at trial, consistent with its charge, was

that Simms menaced K.B. with the pocketknife.

¶ 12 At the close of evidence, the trial court instructed the jury

using the 2022 model instruction on the beyond a reasonable doubt

standard. It also instructed the jury on the elements of menacing,

as follows:

The elements of the crime of Menacing are:

1. That the defendant,

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.

In the event the jury found Simms guilty of menacing, it was also

asked to answer whether the “prosecution prove[d] beyond a

reasonable doubt that the menacing was committed by the use of a

firearm, knife, or bludgeon, or by the use of a simulated firearm,

knife, or bludgeon.” (If so, the conviction would be elevated to a

felony.) The jury instructions provided a definition of “knife” but

not of “bludgeon.”

6 ¶ 13 During deliberations, the jury asked, “Can a fist be considered

a bludgeon?” Defense counsel advocated, based on “common

sense” and their understanding of legislative intent, that the jury be

instructed that a fist cannot be a bludgeon or simulated bludgeon

for purposes of felony menacing. Noting that “jurors are asked to

use their common sense in deliberations,” the trial court rejected

the defense’s proposal and declined to “intervene or intercede itself

into deliberations by providing a conclusive response to the jurors’

question[].” The jury received the following response: “You have

been provided all pertinent definitions. Words which are not

defined are to be given their plain and ordinary meaning.”

¶ 14 At the conclusion of the three-day trial, the jury returned

guilty verdicts on the felony menacing charge and both

misdemeanor assault charges and acquitted Simms of the felony

assault and kidnapping charges. Before the sentencing hearing,

the prosecution submitted a timely motion requesting restitution in

the amount of $9,475.72 to reimburse the CVCB for its payments of

K.B.’s medical expenses. Defense counsel filed a written objection

to the motion. Defense counsel didn’t contest Simms’s general

obligation to pay restitution but instead objected to the proposed

7 amount, asserting, “No supporting documentation was filed along

with the request.” The trial court sentenced Simms to two years in

the custody of the Department of Corrections for the felony

menacing conviction3 and ordered Simms to pay the full amount of

restitution requested by the prosecution.

II. Analysis

A. Jury Instruction on Reasonable Doubt

¶ 15 Because Simms’s challenge to the 2022 model criminal jury

instruction on reasonable doubt would, if sustained, require

reversal of his convictions, we address it first. We conclude that the

trial court didn’t err by using that instruction.

¶ 16 Before 2022, the Colorado model criminal jury instructions

provided the following definition of reasonable doubt:

Reasonable doubt means a doubt based upon reason and common sense which arises from a fair and rational consideration of all of the evidence, or the lack of evidence, in the case. It is a doubt which is not a vague, speculative or imaginary doubt, but such a doubt as would cause reasonable people to hesitate to act in matters of importance to themselves.

3 The trial court also sentenced Simms to concurrent 280-day

sentences for each misdemeanor assault conviction, which were deemed served through presentence confinement credit.

8 COLJI-Crim. E:03 (2021).

¶ 17 In 2022, the model instruction was substantially revised to

provide as follows:

Every person charged with a crime is presumed innocent. This presumption of innocence remains with the defendant throughout the trial and should be given effect by you unless, after considering all the evidence, you are convinced that the defendant is guilty beyond a reasonable doubt.

The burden of proof in this case is upon the prosecution. The prosecution must prove to the satisfaction of the jury beyond a reasonable doubt the existence of each and every element necessary to constitute the crime charged. This burden requires more than proof that something is highly probable, but it does not require proof with absolute certainty.

Proof beyond a reasonable doubt is proof that leaves you firmly convinced of the defendant’s guilt. If you are firmly convinced of the defendant’s guilt, then the prosecution has proven the crime charged beyond a reasonable doubt. But if you think there is a real possibility that the defendant is not guilty, then the prosecution has failed to prove the crime charged beyond a reasonable doubt.

After considering all the evidence, if you decide the prosecution has proven each of the elements of a crime charged beyond a reasonable doubt, you should find the defendant guilty of that crime.

9 After considering all the evidence, if you decide the prosecution has failed to prove any one or more of the elements of a crime charged beyond a reasonable doubt, you should find the defendant not guilty of that crime.

COLJI-Crim. E:03 (2022).

¶ 18 Over Simms’s counsel’s objection, the trial court used the

2022 version of the model criminal jury instruction — rather than

the prior version of the model instruction or counsel’s proposed

“hybrid” alternative instruction that fully incorporated the language

from the prior version — to instruct the jury on the reasonable

doubt standard. Simms contends that the 2022 instruction

undercuts the prosecution’s burden of proof. Two of us aren’t

persuaded.

1. Legal Principles and Standard of Review

¶ 19 The trial court must properly instruct the jury on the

reasonable doubt standard. Tibbels v. People, 2022 CO 1, ¶ 25.

Whether the court’s instruction lowered the prosecution’s burden of

proof is a question of law that we review de novo. Id. at ¶ 22. “An

instruction that lowers the prosecution’s burden of proof below

reasonable doubt constitutes structural error and requires

automatic reversal.” Johnson v. People, 2019 CO 17, ¶ 8.

10 2. Application

¶ 20 Simms contends that the court erred by using the 2022 model

instruction because that version

• didn’t instruct the jury that it could consider the lack of

evidence supporting the prosecution’s case;

• didn’t inform the jury that a doubt is reasonable if it

“would cause reasonable people to hesitate to act in

matters of importance to themselves”;

• framed reasonable doubt as requiring a “real possibility

that the defendant is not guilty” (thereby shifting the

burden of proof to the defense and undermining the

presumption of innocence); and

• instructed the jury that a reasonable doubt is one that

leaves the jury “firmly convinced of the defendant’s guilt.”

¶ 21 While Simms’s appeal was pending, three divisions of this

court considered similar challenges to the 2022 model reasonable

doubt instruction. See People v. Melara, 2025 COA 48, ¶¶ 22-23;

People v. Schlehuber, 2025 COA 50, ¶¶ 16-17; People v. Berumen,

2025 COA 93, ¶ 14. In all three cases, the majorities concluded

that the 2022 instruction doesn’t lower the prosecution’s burden of

11 proof. Melara, ¶¶ 24, 30; Schlehuber, ¶¶ 2, 19, 28-29; Berumen,

¶¶ 29-30, 33.4 We agree with the reasoning of those majority

opinions and adopt it to resolve Simms’s arguments, which we

address in turn.

¶ 22 First, the 2022 model instruction’s omission of specific

language directing the jury that it may consider “the lack of

evidence” doesn’t lower the prosecution’s burden of proof because

the instruction as a whole informs the jury that “if the prosecution

fails to present sufficient evidence of guilt, it will not have met its

burden.” Schlehuber, ¶ 22.

¶ 23 Noting Judge Welling’s concurrence in Melara, ¶ 122, Simms

argues that the 2022 model instruction didn’t emphasize the

importance of a “lack of evidence” as clearly as the previous

4 The Colorado Supreme Court has granted a petition for certiorari

in Teran-Sanchez v. People, No. 25SC148, 2025 WL 2506067 (Colo Sep. 2, 2025) (unpublished order), to address “[w]hether the trial court’s jury instruction on burden of proof and reasonable doubt, based on the 2023 Model Criminal Jury Instruction . . . violated [the defendant’s] federal and constitutional rights to due process and a fair trial.” The 2023 version of the model instruction includes the “lack of evidence” language but is otherwise identical to the 2022 model instruction. See COLJI-Crim. E:03 cmt. 8 (2023) (“In 2023, the Committee added the final sentence to the instruction’s first paragraph regarding evidence or lack of evidence.”).

12 instruction. And he urges us to conclude that the court’s failure to

include the “lack of evidence” language was reversible error. We

aren’t persuaded.

¶ 24 While inclusion of that language might have been better, see

Melara, ¶ 28, the court’s failure to include it here didn’t amount to

error. We agree with the Schlehuber division that “a court does not

err by omitting that language” because “the concept of reasonable

doubt inherently invites jurors to consider what evidence is

missing” and “if the prosecution fails to present sufficient evidence

of guilt, it will not have met its burden.” Schlehuber, ¶¶ 20-22;

accord Berumen, ¶ 33.

¶ 25 Second, we reject Simms’s argument that because the

“hesitate to act” language is “time-tested” in Colorado, without it,

“jurors lack essential guidance for understanding reasonable

doubt.” We instead agree with the Schlehuber division that

omission of the phrase clarifies the reasonable doubt standard by

discouraging courts from using analogies to explain it. See

Schlehuber, ¶ 27. And, in any event, “just because a proposed

instruction is a correct statement of the law does not mean the

instruction must be given or that it is the only correct way to

13 articulate the applicable law.” Id. at ¶ 28; see Victor v. Nebraska,

511 U.S. 1, 5 (1994) (“[S]o long as the court instructs the jury on

the necessity that the defendant’s guilt be proved beyond a

reasonable doubt, the Constitution does not require that any

particular form of words be used in advising the jury of the

government’s burden of proof.” (citation omitted)).

¶ 26 Third, we aren’t persuaded by Simms’s argument that the

“real possibility” language in the instruction holds a defendant to a

higher standard than the law requires and skirts the line of

directing a jury to determine whether a defendant is innocent,

rather than simply requiring it to determine whether the

prosecution has met its burden to demonstrate that a defendant is

guilty.

¶ 27 The court’s instruction said that “reasonable doubt” is a “real

possibility that the defendant is not guilty” and that it “requires

more than proof that something is highly probable.” See COLJI-

Crim. E:03 (2022). The “real possibility” language explains the

prosecution’s evidentiary threshold, and it instructs the jury not to

acquit the defendant based on any conceivable doubt, no matter

how improbable. See Schlehuber, ¶¶ 31, 34. This is an accurate

14 expression of the prosecution’s burden of proof under the

reasonable doubt standard. Id. at ¶¶ 30-31; see Victor, 511 U.S. at

24-27 (Ginsburg, J., concurring in part and concurring in the

judgment) (concluding that similar model instruction language

stated the reasonable doubt standard “succinctly and

comprehensibly”).

¶ 28 Moreover, “equating reasonable doubt with a ‘real possibility’

[doesn’t] shift the burden to the defendant to establish that real

possibility” because nothing about that phrase suggests that

evidence from the defendant must be “the source of the ‘real

possibility.’” Schlehuber, ¶ 34 (quoting United States v. Taylor, 997

F.2d 1551, 1557 (D.C. Cir. 1993)); accord Berumen, ¶ 29. To the

contrary, the court’s instruction said that if a juror thinks “there is

a real possibility that the defendant is not guilty, then the

prosecution has failed to prove the crime charged beyond a

reasonable doubt.” (Emphasis added.) And the court’s instruction

correctly informed the jury that the burden of proof was “upon the

prosecution” and that the “prosecution must prove to the

satisfaction of the jury beyond a reasonable doubt the existence of

15 each and every element necessary to constitute the crime charged.”

See Berumen, ¶ 28.

¶ 29 We acknowledge that Judge Berger’s partial dissent in

Berumen, with which Judge Taubman agrees here, raises legitimate

concerns about the use of the “real possibility” language. See id. at

¶¶ 60-79 (Berger, J., concurring in part and dissenting in part).

Nevertheless, we agree with the Berumen majority that the use of

that phrase, when considered in context and as a part of the

instructions as a whole, doesn’t shift the prosecution’s burden. Id.

at ¶¶ 26-30 (majority opinion); see also United States v. Petty, 856

F.3d 1306, 1310 (10th Cir. 2017) (concluding that a similar

definition of reasonable doubt that instructed the jury that it must

acquit the defendant if there existed a “real possibility” that the

defendant wasn’t guilty was “a correct and comprehensible

statement of the reasonable doubt standard” (quoting United States

v. Conway, 73 F.3d 975, 980 (10th Cir. 1995))).

¶ 30 Fourth, we disagree with Simms’s contention that the “firmly

convinced” phrase in the court’s instruction improperly asks jurors

to base their conclusions about a defendant’s guilt on their “gut

feelings” that a defendant “just seems very guilty,” rather than

16 basing their conclusions on evidence demonstrating that every

element of a particular charge has been proved.

¶ 31 As the Schlehuber division explained, “[t]he phrase ‘firmly

convinced’ correctly connotes a standard of ‘near certitude’” —

greater than “highly probable” but less than absolute certainty.

Schlehuber, ¶ 31 (quoting Jackson v. Virginia, 443 U.S. 307, 315

(1979)). And the court’s instruction, including the phrase “firmly

convinced,” has been “consistently approved by federal courts as an

accurate expression of the reasonable doubt standard.” Id. at ¶ 30;

see, e.g., Victor, 511 U.S. at 24-27 (Ginsburg, J., concurring in part

and concurring in the judgment) (endorsing a similarly worded

instruction as “surpass[ing] others . . . in stating the reasonable

doubt standard succinctly and comprehensibly”); Petty, 856 F.3d at

1310 (holding that a court’s use of the “firmly convinced” language

to describe the reasonable doubt standard “did not understate the

degree of certainty a jury must reach to find a criminal defendant

guilty”); United States v. Velasquez, 980 F.2d 1275, 1278 (9th Cir.

1992) (“Considering the instruction given as a whole, the use of the

‘firmly convinced’ language did not indicate to the jury that the

17 prosecutor had a lesser burden than that implied by the use of the

term ‘reasonable doubt’ standing alone.”).

¶ 32 Further, Simms’s argument regarding the “firmly convinced”

language ignores the court’s other instructions germane to the

prosecution’s burden of proof. Those instructions informed the jury

that it had to presume Simms’s innocence, consider all the

evidence, assess the credibility of witnesses and conflicts in the

evidence, and make its decision by applying rules of law provided by

the court to the evidence (and reasonable inferences therefrom).

Additionally, the court instructed the jury it was prohibited from

basing its decision on “sympathy, bias, or prejudice.” “Absent a

contrary showing, we presume that the jury followed th[ese]

instruction[s].” People v. Dominguez-Castor, 2020 COA 1, ¶ 91.

¶ 33 For these reasons, we discern no error in the court’s decision

to give the 2022 model instruction.

B. Jury Deliberation Question

¶ 34 Simms next contends that the trial court erred by responding

incorrectly to the jury’s question about an element of felony

menacing. Two of us agree.

18 1. Legal Principles and Standard of Review

¶ 35 Whether to provide the jury with additional written

instructions in response to a question is a determination within the

trial court’s sound discretion. People v. Bass, 155 P.3d 547, 552

(Colo. App. 2006).

¶ 36 If a jury asks a question during deliberations, then the court

should refer the jury to the original instructions “when it is

apparent that the jury has overlooked some portion of the

instructions or when the instructions clearly answer the jury’s

inquiry.” Leonardo v. People, 728 P.2d 1252, 1255 (Colo. 1986).

“When a term, word, or phrase in a jury instruction is one with

which reasonable persons of common intelligence would be familiar,

and its meaning is not so technical or mysterious as to create

confusion in jurors’ minds as to its meaning, an instruction

defining it is not required.” People v. Harris, 2016 COA 159, ¶ 98.

However, when the jury’s question demonstrates that the jury has

considered the relevant instruction and has a fundamental

misunderstanding, or when the instructions provide no clear

answer to the jury’s question, the trial court must clarify the matter

19 for the jury in a concrete and unambiguous manner. Leonardo, 728

P.2d at 1255-56.

¶ 37 We review preserved claims of instructional error for

nonconstitutional harmless error, reversing only if the error

substantially influenced the verdict or affected the fairness of the

trial proceedings. People v. Koper, 2018 COA 137, ¶ 9.

¶ 38 Because our analysis depends on the interpretation of the

word “bludgeon” as used in the felony menacing statute, we also

consider rules of statutory interpretation.

¶ 39 The trial court’s interpretation of a statute presents a question

of law that we review de novo. People v. Rieger, 2019 COA 14, ¶ 8.

Our primary goal is to effectuate the legislature’s intent, and, to do

so, we look first to the language of the statute itself, reading words

in context and construing them according to their plain and

ordinary meanings. See Garcia v. People, 2022 CO 6, ¶ 17. We

construe the statute as a whole to give “consistent, harmonious,

and sensible effect to all [its] parts,” and we avoid constructions

that would lead to illogical or absurd results or render words

superfluous. Id. (quoting McCoy v. People, 2019 CO 44, ¶ 38).

20 ¶ 40 If the statute is clear and unambiguous, then we enforce the

statute as written. Nowak v. Suthers, 2014 CO 14, ¶ 20. If,

however, a statute is susceptible of more than one reasonable

interpretation, then it’s ambiguous, and we may turn to other

interpretive aids. Hice v. Giron, 2024 CO 9, ¶ 10; see § 2-4-203,

2. Application

¶ 41 Simms argues that the trial court erred by referring the jury to

the original jury instructions in response to a jury deliberation

question about whether a fist could be considered a “bludgeon” and

that the error warrants reversal of his felony conviction. The People

contend that, because the original jury instructions were accurate

and sufficient, and because a fist may qualify as a bludgeon or

simulated bludgeon, the trial court acted within its discretion by

instructing the jury to apply the plain and ordinary meaning of

“bludgeon.” We agree with Simms that the jury’s question required

a clarifying response; specifically, that a fist is not a bludgeon or

simulated bludgeon under the felony menacing statute. We also

conclude that the trial court’s error in not further instructing the

jury accordingly wasn’t harmless.

21 a. Definition of “Bludgeon”

¶ 42 As noted, “[a] jury should be referred back to instructions only

when it is apparent that the jury has overlooked some portion of the

instructions or when the instructions clearly answer the jury’s

inquiry.” Leonardo, 728 P.2d at 1255. The original instructions

provided no definition of “bludgeon”; therefore, the jury didn’t

overlook some portion of the instructions that could answer its

question, nor did the instructions clearly answer the jury’s question

about whether a fist could be a bludgeon or simulated bludgeon.

Thus, “[r]eferring the jur[ors] back to the same instruction that

created the doubt in their minds could serve no useful purpose.”

Id. Moreover, “the jury’s question did not call for the judge to offer

an opinion upon factual matters.” Id. Instead, the jury sought

insight into whether — as a matter of law — a fist is a bludgeon or

simulated bludgeon under the felony menacing statute. The answer

is no, as discussed further below, and because that issue was

central to Simms’s guilt, the trial court had an obligation to clarify

that matter for the jury in a concrete and unambiguous manner.

See id. at 1256.

22 ¶ 43 Because the statute doesn’t define “bludgeon,” we may look to

dictionary definitions of that term to ascertain its plain and

ordinary meaning to determine how a reasonable juror might

construe it. See People v. Sims, 2020 COA 78, ¶ 19; cf. People v.

Rigsby, 2020 CO 74, ¶ 24 (“When the legislature includes particular

definitions for terms it uses in a statute, those definitions, not an

average person’s understanding of the terms, govern.”). But

dictionary definitions of “bludgeon” demonstrate ambiguity as to

whether a fist can be used as a bludgeon.

¶ 44 One definition of a bludgeon is “a short stick that usually has

one thick or loaded end and is used as a weapon.” Merriam-

Webster Dictionary, https://perma.cc/CSV4-7QZH; see also

Bowers v. People, 617 P.2d 560, 562 (Colo. 1980) (noting in an

aggravated robbery case that “[a] bludgeon is defined in Webster’s

Third New International Dictionary as a short stick used as a

weapon, usually having one thick or loaded end”), superseded by

statute on other grounds, Ch. 212, sec. 2, § 18-1-901, 1981 Colo.

Sess. Laws 972, as recognized in Montez v. People, 2012 CO 6;

People v. Braunhut, 421 N.Y.S.2d 763, 765-66 (Crim. Ct. 1979) (“[A]

bludgeon[,] within its traditional meaning, infers [a] rigid or

23 inflexible object,” and “the functional definition of a bludgeon

traditionally means the use of a heavy weighted and inflexible

instrument which is intended to cause extensive physical injury,

such as broken bones.”). This definition, which implies that a

bludgeon is an inanimate object rather than a body part, is in

tension with the People’s contention that a fist — or, perhaps more

accurately, an arm with a fist at the end5 — may be used as a

bludgeon. A different dictionary notes that the frequency of

“bludgeon” being used in this sense is about “0.1 occurrences per

million words in modern written English,” with its peak usage

occurring in the mid-1800s. Oxford English Dictionary,

https://perma.cc/64YQ-9EWH (see “How common is the noun

bludgeon?” graphic, lower left portion of the webpage).

¶ 45 But another, more contemporary, definition of a bludgeon is

broader: “something used to attack or bully.” Merriam-Webster

Dictionary, https://perma.cc/CSV4-7QZH. These differing

definitions, coupled with the jury’s question, demonstrate a lack of

5 Applying the first dictionary definition of bludgeon, we interpret

the People’s argument that a fist can simulate a bludgeon to suggest that an arm could be construed as the “short stick” and the fist could be construed as the “thick or loaded end.”

24 clarity as to the plain and ordinary meaning of “bludgeon” that

warranted further examination and required clarification by the

trial court when the jury demonstrated its confusion.

¶ 46 Thus, because we recognize some ambiguity as to the meaning

of the word “bludgeon,” we turn to other tools of statutory

construction. In doing so, we reject the People’s assertion that a fist

can be a bludgeon or a simulated bludgeon for three reasons.

¶ 47 First, construing “bludgeon” to include a fist is inconsistent

with the statutory scheme. Even if we accept the reasoning

advanced by the People — that the way in which an object is used is

relevant to determining whether it is a bludgeon — we still can’t

accept their argument that a fist can be construed as a bludgeon in

the context of the felony menacing statute. See Garcia, ¶ 17.

¶ 48 “The statute prohibits knowingly placing or attempting to

place another person in fear of imminent serious bodily injury, and

it provides that doing so with a [firearm, knife, or bludgeon or a

simulated firearm, knife, or bludgeon] is a felony.” People v.

Romero, 2025 COA 91, ¶ 18. While we don’t doubt that a person’s

fists can cause serious bodily injury, we conclude that fists are

meaningfully different from types of weapons listed in the statute.

25 See Beecham v. United States, 511 U.S. 368, 371 (1994) (“That

several items in a list share an attribute counsels in favor of

interpreting the other items as possessing that attribute as well.”);

see also People v. Vue, 818 N.E.2d 1252, 1257 (Ill. App. Ct. 2004)

(“[A]lthough a [pellet gun] might be capable of being used as a

bludgeon, it is not typically identified as such and . . . could not be

interpreted to be ‘of like character’ to the bludgeon-type weapons

included in [the statute].” (citation omitted)).

¶ 49 As has long been recognized, objects like firearms, knives, and

bludgeons pose a distinct and greater risk of severe injury

compared to fists. See, e.g., Norton v. State, 14 Tex. 387, 387 (1855)

(recognizing the use of “bludgeons, missiles[,] or instruments or

weapons of any kind capable of inflicting injury beyond what may

ordinarily be inflicted by a blow with the fist” as an aggravating

circumstance (emphasis added)). Accordingly, the felony menacing

statute’s listed items — “firearm, knife, or bludgeon” — share the

characteristic of being inanimate objects that inherently pose a

significant risk of severe injury, which makes them meaningfully

different from fists.

26 ¶ 50 Second, the People’s reliance on a line of cases holding that

fists and other objects may qualify as deadly weapons, depending

on the way those objects are used, is unavailing. See, e.g., People v.

Saleh, 45 P.3d 1272, 1275 (Colo. 2002) (“Body parts can be deadly

weapons depending upon the manner in which they are used.”);

People v. Hayes, 923 P.2d 221, 227 (Colo. App. 1995) (“Any object,

including a fist, can be a deadly weapon if it is used or intended to

be used in a manner capable of producing death or serious bodily

injury.”).

¶ 51 This line of cases is inapposite because they interpret the

definition of a “deadly weapon,” which lists not only bludgeons, but

also “any other weapon, device, instrument, material, or substance,

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), C.R.S. 2025; see also Saleh, 45 P.3d at

1275 (“The phrase ‘any other weapon, device, instrument, material

or substance, whether animate or inanimate’ in section

18-1-901(3)(e) is a general provision applying to any and all objects

other than a firearm, knife, or bludgeon.” (emphasis added)). Thus,

it’s no surprise that when a statute contemplates “deadly weapons,”

27 fists are included — not as a form of bludgeon, but as “any other”

object capable of producing serious injury.

¶ 52 By contrast, the felony menacing statute contemplates only

the use of a “firearm, knife, or bludgeon or a simulated firearm,

knife, or bludgeon.” § 18-3-206. Because the felony menacing

statute applies to the use of a narrower, defined category of

weapons, we find unpersuasive the People’s argument that fists

may be considered bludgeons or simulated bludgeons because they

may qualify as deadly weapons.

¶ 53 The third, and most persuasive, reason is that the legislative

history belies the People’s construction of the statute. “Before

2022, the menacing statute provided that menacing was a felony if

committed ‘[b]y the use of a deadly weapon or any article used or

fashioned in a manner to cause a person to reasonably believe that

the article is a deadly weapon.’” Romero, ¶ 13 (quoting § 18-3-206,

C.R.S. 2021). As discussed above, the definition of a “deadly

weapon” is much broader than the enumerated list of “firearm,

knife, or bludgeon” because it includes a catchall provision. And

“[e]ffective March 1, 2022, the [General Assembly] amended the

menacing statute to provide that menacing [is] a felony ‘if

28 committed by the use of a firearm, knife, or bludgeon or a simulated

firearm, knife, or bludgeon.’” Id. at ¶ 15 (quoting § 18-3-206, C.R.S.

2025).

¶ 54 The Romero division recognized that “the amendment indicates

the legislature’s intent to narrow the scope of items that can trigger

a felony menacing charge.” Id. at ¶ 21. Because we “presume that

the legislature is aware of the previously expressed legal importance

of the words and phrases it uses,” People v. Rockwell, 125 P.3d 410,

417 (Colo. 2005), we agree with the Romero division that the

General Assembly intended to limit the broad language of the

previous version of the statute. See People v. O’Neal, 228 P.3d 211,

214 (Colo. App. 2009) (“[T]he most relevant time period for

determining a statute’s meaning is the time when the statute was

enacted . . . .”). Accordingly, we further conclude that the felony

menacing statute does not permit a fist to serve as a bludgeon or

simulated bludgeon.

¶ 55 In his partial dissent, Judge Bernard argues that the court

didn’t err because (1) the plain and ordinary meaning of the word

“bludgeon” — as evidenced primarily by case law from other

jurisdictions — is “straightforward” and doesn’t contemplate a fist,

29 infra ¶ 98; and (2) after jurors asked for clarification of that term,

the court directed them to apply that term’s plain and ordinary

meaning. He thus contends that the court’s additional instruction

to apply the “plain and ordinary” meaning of “bludgeon” was

sufficient to remediate the jurors’ confusion. We disagree.

¶ 56 A word’s meaning is “plain” if it “cannot be read in any other

way.” Marco Basile, Ordinary Meaning and Plain Meaning, 110 Va.

L. Rev. 135, 156 (2024) (quoting United States v. Ron Pair Enters.,

Inc., 489 U.S. 235, 242 (1989)). And the common or “ordinary”

meaning of a word in a legal context “is generally informed by

considerations of how readers of the text would actually understand

it,” Kevin P. Tobia, Testing Ordinary Meaning, 134 Harv. L. Rev. 726,

739 (2020), which, in turn, is often discerned through dictionary

definitions. See also Basile, 110 Va. L. Rev. at 151 (“[O]rdinary

meaning is what the statutory text would convey to a reasonable

English user in . . . ‘ordinary’ communication.”).

¶ 57 Indeed, the courts in each of the cases Judge Bernard

references turned to dictionaries to discern the “plain and ordinary”

meaning of the word “bludgeon,” just as we have done. Yet jurors,

who aren’t expected to know relevant law, People v. Clemens, 2017

30 CO 89, ¶ 17, are prohibited from doing the same, Sims, ¶ 19.

Rather, “jurors must obtain clarifications of any ambiguities in

terminology from the trial judge, not from extraneous sources.”

Niemand v. Dist. Ct., 684 P.2d 931, 934 (Colo. 1984).

¶ 58 As we’ve concluded, the common meaning of the word

“bludgeon” has multiple reasonable interpretations, and jurors

exhibited confusion as to the legal significance of that term under

the circumstances of this case. We therefore disagree with Judge

Bernard that it was sufficient for the trial court to instruct the

jurors that they should apply the plain and ordinary meaning of

“bludgeon.” Instead, the trial court was obligated to provide a

definite and unambiguous answer regarding the term’s meaning.

See Leonardo, 728 P.2d at 1256; Garcia, ¶¶ 16-17.

¶ 59 By not clarifying that a fist cannot be considered a bludgeon

under the felony menacing statute, the trial court left open the

possibility that the jury convicted Simms of felony menacing

because he used his fists, a meaning that the General Assembly

didn’t contemplate. This was error. However, the court’s error only

warrants reversing Simms’s felony menacing conviction if it

substantially influenced the verdict or affected the fairness of the

31 trial proceedings. See Hagos v. People, 2012 CO 63, ¶ 12.

Accordingly, we next consider whether the court’s error was

harmless.

b. Harmlessness

¶ 60 Whether a fist could be considered a bludgeon related to a

central element of the crime of felony menacing. See Leonardo, 728

P.2d at 1256. Indeed, the question related to the only element

required to elevate the conviction from a misdemeanor to a felony.

The People argue that the jury’s split verdict demonstrates that it

carefully parsed and fully credited K.B.’s testimony, and thus any

error concerning the jury deliberation question was harmless

because K.B.’s testimony supported Simms’s conviction for felony

menacing using a pocketknife.

¶ 61 But we agree with Simms that if the jurors believed K.B.’s

testimony about Simms’s use of a knife and were “inclined to

convict Mr. Simms of menacing with a knife . . . , they would not

have asked if a fist can be considered a bludgeon.” While Simms

was formally charged with felony menacing only by use of a knife,

the jury instructions tracked the broader statutory language,

allowing the jury to convict Simms if it found that he menaced K.B.

32 by the use of instruments other than a knife — namely, as relevant

here, a bludgeon or a simulated bludgeon.

¶ 62 Thus, regardless of whether K.B.’s testimony could have

supported a felony menacing conviction based on the theory that

Simms used a knife, the jury’s question casts sufficient doubt about

whether it convicted Simms based on his use of a pocketknife or

based on his use of his fists, which, as discussed above, is not

permitted under the statute. See Garcia, ¶¶ 26-27, 30, 37-38, 40

(explaining that the trial court’s instructional error, which the jury

could have understood to allow a conviction on an improper basis,

related to a “hotly contested” charge and warranted reversal).

¶ 63 In light of this uncertainty, we conclude that a reasonable

possibility exists that the trial court’s error in not adequately

responding to the jury’s question contributed to Simms’s felony

menacing conviction. See Leonardo, 728 P.2d at 1256 (concluding

that “the court committed prejudicial error when it failed to respond

adequately to the jury’s inquiry” that was “related to a central

element” of the charged offense). Therefore, we must reverse

Simms’s felony menacing conviction.

33 C. Restitution Award

¶ 64 Finally, we consider Simms’s argument that the trial court

erred by awarding $9,475.72 in restitution, payable to the CVCB,

because the prosecution didn’t properly establish the amount of

assistance provided by the CVCB, as section 18-1.3-603(10)

requires.

¶ 65 As an initial matter, the parties dispute whether Simms has

preserved the precise issue he raises on appeal. We need not

definitively resolve this issue because, as we discuss below, the

court’s findings are insufficient for us to determine the basis of its

restitution award. If the court’s award of restitution was based

solely on Simms’s now-reversed felony menacing conviction, it

cannot stand. Accordingly, we vacate the award and remand to the

trial court for determination of restitution, if any, consistent with

this opinion.

¶ 66 Individuals convicted of a crime must “make full restitution to

those harmed by their misconduct.” § 18-1.3-601(1)(b), C.R.S.

34 2025.6 The restitution statute therefore requires every order of

conviction for a felony or misdemeanor to include one of four types

of restitution orders, including, as relevant here, an order that a

defendant pay a specific amount of restitution. § 18-1.3-603(1)(a);

People v. Weeks, 2021 CO 75, ¶ 3. The court must base its order

for restitution on information presented by the prosecuting

attorney. § 18-1.3-603(2)(a). And “[i]n a restitution proceeding, the

prosecution bears the burden of proving by a preponderance of the

evidence not only the victim’s losses, but also that the victim’s

losses were proximately caused by the defendant’s criminal

conduct.” People v. Martinez-Chavez, 2020 COA 39, ¶ 14.

¶ 67 When a CVCB pays a victim’s claim for losses, it may recover

that amount from a defendant. See id. at ¶ 13;

§ 18-1.3-602(4)(a)(IV), C.R.S. 2025. Losses compensable by a CVCB

include “[r]easonable medical and hospital expenses.”

§ 24-4.1-109(1)(a), C.R.S. 2025.

¶ 68 The restitution statute requires the court to consider the

amount of assistance provided and requested by a CVCB in

6 We cite the 2025 version of the statute because the portions

relevant to our analysis haven’t changed since Simms’s conviction.

35 determining the restitution amount and creates a rebuttable

presumption that a CVCB claim is a direct result of the defendant’s

criminal conduct. § 18-1.3-603(10)(a); People v. Stone, 2020 COA

24, ¶ 24. To be entitled to the presumption that the amount paid

by a CVCB for a victim’s medical expenses is the “direct result of

the defendant’s criminal conduct,” section 18-1.3-603(10) requires

the prosecution to provide either “[a] list of the amount of money

paid to each provider” or, “[i]f the identity or location of a provider

would pose a threat to the safety or welfare of the victim, summary

data reflecting what total payments were made for.”

§ 18-1.3-603(10)(a), (b)(I)-(II)(A). Detailed findings help avoid the

risk of a remand due to inadequate explanation or insufficient

reasoning concerning a restitution order. People v. Le, 2022 COA

32, ¶ 37.

¶ 69 We review a trial court’s application of the restitution statute

for an abuse of discretion. People v. Gregory, 2019 COA 184, ¶ 21.

A trial court abuses its discretion when it misconstrues or

misapplies the law. Id.; accord People v. Fregosi, 2024 COA 6, ¶ 39.

36 2. Application

¶ 70 Despite the majority’s reversal of Simms’s felony menacing

conviction, he remains responsible for paying restitution because he

was convicted of two counts of misdemeanor assault. See

§ 18-1.3-603(1)(a). He doesn’t contest his conviction on the

misdemeanor counts.

¶ 71 Section 18-1.3-603(1)(a), (10)(a) obligated the court to enter an

award of restitution in which it considered the losses incurred by

the CVCB in determining the amount. The prosecution’s restitution

motion said only that the CVCB had paid $9,475.72. It didn’t

explain what those funds were expended for or include any

information regarding the convictions (i.e., the “misconduct” on

which its restitution request was based). § 18-1.3-601(1)(b).

¶ 72 The prosecution later submitted to the court a report from the

CVCB in support of the restitution motion. The report included a

statement that the requested funds had been expended for K.B.’s

verified “medical expenses.” However, the report contained neither

a list of providers and the amount of money paid to each nor

summary data reflecting the purpose of the total amount requested,

supported by evidence that a summary was appropriate in the

37 interest of K.B.’s safety or welfare. See Martinez-Chavez, ¶ 20 (“In

their motion for restitution, the People did not provide a list of

providers nor did they even argue that disclosure of such a list

would pose a threat to the safety or welfare of any victim.”).

¶ 73 Similarly, at Simms’s sentencing hearing, the prosecution

didn’t submit to the court, through evidence or argument, any

additional information about K.B.’s specific providers or summary

data in lieu of provider-specific information. And although the

prosecutor appears to have argued that the basis for the medical

expenses was the two misdemeanor assault charges, the court’s

findings are silent as to the specific misconduct by Simms that

supported the imposition of the restitution award. Instead, the

court merely stated that it had reviewed the restitution statute, that

the CVCB had received confidential records that “resulted in the

provision of $9,475.72 to [K.B.],” and that the “those restitution

amounts are imposed.”

¶ 74 These findings are insufficient for us to determine whether the

court gave the prosecution the benefit of section 18-1.3-603(10)’s

rebuttable presumption, and, if not, the basis on which the court

determined that Simms’s conduct proximately caused the entirety

38 of K.B.’s claimed losses. Accordingly, we vacate the restitution

award and remand for further proceedings regarding the

determination of restitution. See People v. D.F., 933 P.2d 9, 14

(Colo. 1997) (“When appellate review is hindered by the absence of

factual findings as to key contested issues, or when unresolved

evidentiary conflicts exist with regard to material facts, we have

remanded for further fact finding by the trial court.”).

¶ 75 Should the issue arise on remand, the trial court may not

apply the rebuttable presumption of causation unless the

prosecution satisfies section 18-1.3-603(10)(b)’s requirements and

must otherwise hold the prosecution to its burden of proving that

the amount of assistance the CVCB provided was attributable to

Simms’s conduct.

III. Disposition

¶ 76 The felony menacing conviction is reversed, the restitution

order is vacated, and the case is remanded for further proceedings

consistent with this opinion.7

JUDGE BERNARD concurs in part and dissents in part.

7 The two misdemeanor assault convictions, which Simms didn’t

challenge on appeal, remain undisturbed.

39 JUDGE TAUBMAN concurs in part and dissents in part.

40 JUDGE BERNARD, concurring in part and dissenting in part.

¶ 77 I concur with Part II.A of the majority opinion, which

concludes the reasonable doubt instruction used in this case was

not unconstitutional. I also concur with Part II.C concerning the

restitution award. But I disagree with Part II.B, which concludes

the trial court did not adequately respond to the jury’s question,

“Can a fist be considered a bludgeon?” I therefore respectfully

dissent from Part II.B, and I would affirm defendant’s conviction for

felony menacing.

I. Introduction

¶ 78 I begin by looking to the lay of the land in this appeal. I start

with defendant’s contention concerning the jury’s question, “Can a

fist be considered a bludgeon?” I next address how the prosecution

answers defendant’s contention. And I last consider the majority’s

analysis of the issue.

¶ 79 Defendant contends “the court erred by failing to properly

instruct the jury when they exhibited confusion about the elements

of felony menacing. When the jury asked whether a fist could be

considered a ‘bludgeon,’ the court merely referred them back to the

41 original instructions rather than providing the necessary

clarification.”

¶ 80 The prosecution responds “there are factual circumstances in

which a ‘fist’ would likely qualify” as a bludgeon. As a result, the

prosecution proposes, “it was appropriate for the court to avoid a

definitive response that would have encompassed a factual

determination and instead instruct the jury that any undefined

terms were to be given their plain and ordinary meaning.”

¶ 81 The majority asserts dictionary definitions of the word

“bludgeon” “demonstrate ambiguity as to whether a fist can be used

as a bludgeon.” Supra ¶ 43. The majority recognizes the primary

definition of the term indicates a bludgeon is an object, but it then

points to a secondary definition — “something used to attack or

bully” — that the majority states “demonstrate[s] a lack of clarity as

to the plain and ordinary meaning of ‘bludgeon.’” Supra ¶ 45. This

lack of clarity about the definition of the term, the majority

continues, “warranted further examination and required

clarification by the trial court when the jury demonstrated its

confusion.” Supra ¶ 45. Then, the majority goes on, it “recognize[s]

some ambiguity as to the meaning” of “bludgeon,” so it “turn[s] to

42 other tools of statutory construction.” Supra ¶ 46. Next, the

majority rejects the prosecution’s “assertion that a fist can be a

bludgeon or a simulated bludgeon.” Ultimately, the majority

concludes that “[b]y not clarifying that a fist cannot be considered a

bludgeon under the felony menacing statute, the trial court left

open the possibility that the jury convicted [defendant] of felony

menacing because he used his fists, a meaning that the General

Assembly didn’t contemplate.” Supra ¶ 59.

¶ 82 As I explain in more detail below, I think the trial court’s

response to the jury’s question (“You have been provided all

pertinent definitions. Words which are not defined are to be given

their plain and ordinary meaning.”) clearly told the jury a fist could

not be a bludgeon. I therefore submit the prosecution’s contention

that a fist can be a bludgeon in certain circumstances is beside the

point. And I disagree with the majority’s conclusion that

defendant’s conviction should be reversed because the trial court

did not specifically instruct the jury a fist was not a bludgeon.

II. General Legal Principles

¶ 83 When terms are not defined in a jury instruction, the general

rule is “the jury is presumed to employ the common meaning of the

43 words used.” People v. Walden, 224 P.3d 369, 379 (Colo. App.

2009). In other words, “[w]hen a term . . . in a jury instruction is

one with which reasonable persons of common intelligence would

be familiar, and its meaning is not so technical or mysterious as to

create confusion in jurors’ minds as to its meaning, an instruction

defining it is not required.” People v. Harris, 2016 COA 159, ¶ 98.

¶ 84 But what should a court do when a jury expresses some

confusion about the meaning of a term that is not defined elsewhere

in the instructions? In Leonardo v. People, 728 P.2d 1252, 1258

(Colo. 1986), the supreme court decided a question from a jury in a

criminal case “betrayed a serious misunderstanding regarding the

culpable mental state” of the crime with which the defendant had

been charged. The trial court responded to this question by

instructing the jury to reach a verdict by “applying the words as you

find them in the instructions.” Id. at 1254.

¶ 85 The supreme court concluded the trial court’s response was

inadequate. “[W]hen the jury indicates to the judge that it does not

understand . . . some . . . matter of law central to the guilt or

innocence of the accused, the judge has an obligation to clarify that

matter for the jury in a concrete and unambiguous manner.” Id. at

44 1256. In Leonardo, “[t]he jury’s confusion . . . could have been

removed by a simple and direct response.” Id. By not offering such

a response, the trial court committed “prejudicial error.” Id.

III. Analysis

¶ 86 To begin, in response to the jury’s question in this case, the

trial court did more than merely instruct the jury to “apply[] the

words as you find them in the instructions.” Id. at 1254. Rather,

the court told the jury it had “been provided all pertinent

definitions,” and “words which are not defined are to be given their

plain and ordinary meaning.” (Emphasis added.) To put it a

different way, the trial court told the jury to apply the general rule I

identified above, which had not been previously included in the

instructions. By applying the general rule, and by looking to the

“plain and ordinary meaning” of the term “bludgeon,” I conclude the

jury was adequately instructed a fist was not a bludgeon.

¶ 87 In Colorado, our supreme court considered the meaning of

“bludgeon” in Bowers v. People, 617 P.2d 560, 562 (Colo. 1980),

superseded by statute on other grounds, Ch. 212, sec. 2,

§ 18-1-901, 1981 Colo. Sess. Laws 972, as recognized in Montez v.

People, 2012 CO 6, ¶ 14: “A bludgeon is defined by Webster’s Third

45 New International Dictionary as a short stick used as a weapon,

usually having one thick or loaded end.”

¶ 88 Definitions of “bludgeon” used in other jurisdictions are much

the same as this one.

¶ 89 In United States v. Sicurella, 367 F.3d 82, 86 n.1 (2d Cir.

2004), the court, referring to a dictionary, defined a “bludgeon” as

“a short stick used as a weapon usually having one thick, heavy, or

loaded end.” (Citation omitted.)

¶ 90 In Harris v. State, 398 So. 2d 777, 779 (Ala. Crim. App. 1981),

the court looked to a dictionary to define a “bludgeon” as “a short

stick, with one end loaded, or thicker and heavier than the other,

used as an offensive weapon, hence any clublike weapon.” (Citation

omitted.)

¶ 91 In Jamison v. Commissioner of Correction, 143 A.3d 1136,

1143 (Conn. App. Ct. 2016), the court observed that “not all

dictionary definitions of bludgeon describe a bludgeon as being

heavy. It may be a short stick with one thick or loaded end. . . .

[S]ynonyms for bludgeon routinely include the words bat, club,

stick, and truncheon.”

46 ¶ 92 In People v. Fink, 437 N.E.2d 623, 624 (Ill. 1982), a trial court

consulted “various dictionaries,” which “generally define[d] a

‘bludgeon’ as a short, heavy stick or club with one end loaded or

thicker or heavier than the other.”

¶ 93 People v. Malik, 245 N.W.2d 434, 436 (Mich. Ct. App. 1976),

lists three definitions of “bludgeon” from three dictionaries: a “short

stout stick or club, with one end loaded or thicker and heavier than

the other, used as a weapon”; a “short, heavy club with one end

weighted, or thicker and heavier than the other”; and “1. a short

stick that usu. has one thick or loaded end and is used as a

weapon. 2: something used to attack or bully.” (Citations omitted.)

¶ 94 State v. Tims, 324 A.2d 45, 47 (N.J. Super. Ct. App. Div.

1974), looked to a dictionary to define “bludgeon” as “a short stick

used as a weapon, usually having one thick, heavy, or loaded end

[or] . . . any similar weapon.” (Citation omitted.)

¶ 95 People v. Jin Lu, 960 N.Y.S.2d 295, 296-97 (Crim. Ct. 2013),

lists three definitions used in other New York cases: a “short stick,

with one end loaded or thicker and heavier than the other, used as

an offensive weapon”; “a short club commonly loaded at one end or

bigger at one end than the other, used as a weapon”; and a “rigid or

47 inflexible object, weighted, thicker or heavier on one side, used as

an offensive weapon.” (Citations omitted.)

¶ 96 Malik, 245 N.W.2d at 436, indicates there is a secondary

definition of “bludgeon”: It can be “something used to attack or

bully.” (Citation omitted.) I could only find one other published

case referring to this secondary definition, and it quotes Malik:

People v. Tate, 386 N.E.2d 584, 585 (Ill. App. Ct. 1979). Neither of

these cases spends much time on the secondary definition, and

neither one hints “something used to attack or bully” would include

a fist.

¶ 97 Looking to What Constitutes a “Bludgeon,” “Blackjack,” or

“Billy” within Meaning of Criminal Possession Statute, 11 A.L.R.4th

1272 (1982), one will search in vain to find a bludgeon described as

a fist, or, for that matter, as a hand, a knee, a foot, an elbow, or any

other part of the human body.

¶ 98 Based on this authority, I conclude the plain and ordinary

meaning of the word “bludgeon” is straightforward. There are

commonalities among the various definitions listed above. A

bludgeon is a stick or a club; one end is usually thicker or heavier

48 than the other, or it is loaded; it is used as a weapon. It is an

object, a thing; it is not part of a human body, such as a fist.

¶ 99 The consistency and clarity of the definitions of “bludgeon” in

cases throughout the United States refute defendant’s contention

and the prosecution’s position. When, in response to the jury’s

question, the court instructed the jury to give “[w]ords which are

not defined . . . their plain and ordinary meaning,” the court

provided a sufficient answer: Employing the plain and ordinary

meaning of “bludgeon,” a fist cannot be one. And, during the trial,

the prosecution never argued a fist could be a bludgeon. The focus

of the prosecution’s case was, instead, that defendant had menaced

the victim with a knife.

¶ 100 I therefore think the prosecution’s appellate contention —

“there are factual circumstances in which a ‘fist’ would likely

qualify” as a bludgeon — is a red herring. This contention is simply

inconsistent with the plain meaning of the term. But I agree with

the core of the next part of the prosecution’s contention, which I

would rephrase to read like this: It was appropriate for the court to

instruct the jury that any undefined terms were to be given their

plain and ordinary meanings because, when looking at the word

49 “bludgeon,” the plain and ordinary meaning of “bludgeon” does not

include a fist.

¶ 101 Last, I reject, for two reasons, the majority’s position that the

secondary definition of the term “bludgeon” renders it ambiguous.

¶ 102 First, remembering the issue in this appeal is whether the

court’s instruction sufficiently informed the jury a fist was not a

bludgeon, I have already concluded the court’s instruction did just

that.

¶ 103 Second, “[c]ondemned to the use of words, we can never

expect mathematical certainty from our language.” Grayned v. City

of Rockford, 408 U.S. 104, 110 (1972). Indeed, “any word in the

English language — except for words of specialized contexts, such

as mathematics or science — will ordinarily have multiple

meanings, depending on the context in which it has been used.”

Cmty. Renewal Team, Inc. v. U.S. Liab. Ins. Co., 17 A.3d 88, 92

(Conn. App. Ct. 2011).

¶ 104 “That is why we have dictionaries: not to determine the

meaning of a given word, or even the preferred meaning of a given

word, but simply to give us a lexicon of the various meanings that

the word has carried depending on the various contexts of its use.”

50 Id. “[S]imply because a given word . . . has carried different

meanings in different contexts in the English language” does not

mean it is necessarily ambiguous. Id. at 93. “If that were so, then

for all practical purposes all such words . . . would be ambiguous,

because we would always be able to point to some other meaning

that the word has carried in some other context.” Id. “There is little

doubt that imagination can conjure hypothetical cases in which the

meaning of . . . terms will be in nice question.” Am. Commc’ns

Ass’n, C.I.O. v. Douds, 339 U.S. 382, 412 (1950).

¶ 105 Keeping these principles about language and ambiguity in

mind, I quote a British philosopher who once wrote, in a different

context, “[a]ccepting that the world is full of uncertainty and

ambiguity does not and should not stop people from being pretty

sure about a lot of things.” Julian Baggini, What Is This Foolish

Lust for Uncertainty?, The Guardian (Oct. 28, 2011),

https://perma.cc/83RQ-FJN6. Following Mr. Baggini’s advice in

this case, I am more than “pretty sure” the word “bludgeon” is not

ambiguous; I am confident it is not.

51 JUDGE TAUBMAN, concurring in part and dissenting in part.

¶ 106 I concur with Parts II.B and II.C of the majority opinion

because I agree that the felony menacing conviction must be

reversed and that there are insufficient findings to support the

court’s award of restitution to the Crime Victim Compensation

Board. However, I dissent from Part II.A because I would also

reverse Simms’s felony menacing conviction and remand his case

for a new trial using a different reasonable doubt instruction.

Specifically, I believe that the use of the “real possibility” language

in the 2022 model criminal jury instructions impermissibly lowered

the prosecution’s burden of proof.

¶ 107 As the majority notes, the validity of the 2022 model criminal

jury instruction on reasonable doubt has been challenged in several

cases, including one in which the supreme court has granted

certiorari. See supra ¶ 21 & n.4 (citing Teran-Sanchez v. People,

(Colo. No. 25SC148, Sep. 2, 2025) (unpublished order)); cf. Chavez

v. Chavez, 2020 COA 70, ¶ 13, 465 P.3d 133, 138 (explaining that

“divisions are not bound by the decisions of other divisions”).

¶ 108 I dissent in part, consistent with my prior stance on this

issue — see People v. Green, slip op. at 26-28, 2026 WL 407549

52 (Colo. App. No. 23CA1305, Feb. 12, 2026) (not published pursuant

to C.A.R. 35(e)) (Taubman, J., concurring in part and dissenting in

part) — because I agree with Judge Berger’s persuasive partial

dissent in People v. Berumen, 2025 COA 93, ¶¶ 60-79, 583 P.3d

1264, 1275-78 (Berger, J., concurring in part and dissenting in

part), that the third paragraph of the 2022 model jury instruction

on reasonable doubt impermissibly lowers the prosecution’s burden

of proof. That paragraph, in pertinent part, states, “[I]f you think

there is a real possibility that the defendant is not guilty, then the

reasonable doubt.” COLJI-Crim. E:03 (2022).

¶ 109 I agree with Judge Berger that the “real possibility” language

creates ambiguity and confusion as to the meaning of reasonable

doubt. See Berumen, ¶¶ 66-68, 583 P.3d at 1276-77 (Berger, J.,

concurring in part and dissenting in part). The “real possibility”

language may lead a jury to believe that it may acquit a defendant

only if it believes there is a real possibility the defendant did not

commit the charged offense, and not if the prosecution simply failed

to meet its burden. Id. at ¶¶ 67-68, 583 P.3d at 1277; cf. United

States v. Williams, 20 F.3d 125, 131 (5th Cir. 1994) (“When read in

53 the context of the charge as a whole, the instruction’s ‘real

possibility’ formulation explains that the beyond a reasonable doubt

standard does not require ‘proof that overcomes every possible

doubt.’ In other words, the modifier ‘real’ merely indicates that the

jury is not to acquit a defendant if it can conceive of any possibility

that the defendant is not guilty.” (emphasis added)). Because there

are many permissible bases for a jury to acquit, the implication that

a jury may acquit only on the basis that there is a real possibility

that the defendant is not guilty impermissibly lowers the

prosecution’s burden of proof. Berumen, ¶ 69, 583 P.3d at 1277

(Berger, J., concurring in part and dissenting in part).

¶ 110 The problems posed by the “real possibility” language are well

illustrated by this case. As discussed in the majority opinion, the

trial court erred by not adequately responding to a jury deliberation

question concerning an element of felony menacing, in effect

allowing the jury to incorrectly believe that it could convict Simms

based on his use of his fists as a bludgeon or simulated bludgeon.

Coupled with this instructional error, the use of the “real

possibility” language may have prevented the jury from concluding

that there was a “real possibility” that Simms did not commit felony

54 menacing because there was no genuine dispute at trial about

whether Simms used his fists in at least one altercation with K.B.

Thus, the “real possibility” language not only lowered the

prosecution’s burden of proof in this case, it also effectively

precluded acquittal on Simms’s felony menacing charge when

considered alongside the evidence admitted at trial and the trial

court’s instructional error.

¶ 111 I also agree that, while “reading the challenged sentence in

context makes the question closer,” id. at ¶ 70, 583 P.3d at 1277,

the “real possibility” language muddles the reasonable doubt

standard to the point that “there is a reasonable likelihood the jury

applied the instructions in an unconstitutional manner.” People v.

Garcia, 2021 COA 80, ¶ 26, 495 P.3d 362, 369, aff’d, 2023 CO 30,

531 P.3d 1031.

¶ 112 Because, in my view, the use of the “real possibility” language

lowered the prosecution’s burden below proof beyond a reasonable

doubt, I would conclude that the error is structural and Simms’s

felony menacing conviction must be reversed on this ground, as

well. See Johnson v. People, 2019 CO 17, ¶ 8, 436 P.3d 529, 531.

In any event, I encourage the trial court to exercise its “discretion to

55 depart from th[is] problematic portion[] of the pattern instruction”

when Simms is retried for felony menacing. Berumen, ¶ 78 & n.5,

583 P.3d at 1278 & n.5 (Berger, J., concurring in part and

dissenting in part). Moreover, I urge the supreme court to

disapprove the “real possibility” language in the current model jury

instruction. See COLJI-Crim. E:03 (2025). Accordingly, I concur

with Parts II.B and II.C of the majority opinion, but I dissent from

Part II.A.