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 February 21, 2019
2019COA23
No. 16CA0737, People v. Denhartog — Crimes — Assault in the First Degree — Peace Officers, Firefighters, or Emergency Medical Services Providers
During a traffic stop, the defendant suddenly and without
warning backed his car into a police officer’s motorcycle, injuring
the officer. He was convicted of first degree assault of a peace
officer, which requires proof that the defendant “threatened” the
peace officer with a deadly weapon. On appeal, he argued the
evidence was insufficient to support his conviction because the
prosecution failed to prove he “threatened” the officer.
A division of the court of appeals agrees, concluding that,
consistent with prior case law construing the term, “threaten”
means to express a purpose or intent to cause harm or injury and
the act of suddenly hitting the officer’s motorcycle, without more, does not constitute a threat. Accordingly, the division vacates the
defendant’s conviction for first degree assault.
The division rejects the defendant’s remaining challenges to
his convictions and sentences, with the exception of his claim,
conceded by the People, that his multiple convictions for second
degree assault must merge. COLORADO COURT OF APPEALS 2019COA23
Court of Appeals No. 16CA0737 El Paso County District Court No. 15CR1196 Honorable David S. Prince, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Robert Leonard Denhartog,
Defendant-Appellant.
JUDGMENT AFFIRMED IN PART, VACATED IN PART, AND CASE REMANDED WITH DIRECTIONS
Division IV Opinion by JUDGE HARRIS Hawthorne and Fox, JJ., concur
Announced February 21, 2019
Philip J. Weiser, Attorney General, Jillian J. Price, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellant
Megan A. Ring, Colorado State Public Defender, Jon W. Grevillius, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant ¶1 Defendant, Robert Leonard Denhartog, was convicted of
various felony, misdemeanor, and traffic offenses after he suddenly
reversed his vehicle during a traffic stop, striking a patrol officer’s
motorcycle, then fled the scene and broke into an unoccupied
apartment.
¶2 On appeal, he contends that the evidence was insufficient to
support his conviction for first degree assault of a peace officer and
that the court erred by admitting prior bad act evidence and by
allowing prosecutorial misconduct in closing argument. He also
argues that various convictions must merge and that certain
sentences must run concurrently.
¶3 We agree that the evidence did not establish that Denhartog
threatened the patrol officer with a deadly weapon and we therefore
vacate his conviction and sentence for first degree assault. We also
agree, as do the People, that the second degree assault convictions
must be merged. But we otherwise reject Denhartog’s challenges to
his convictions and sentences.
¶4 Accordingly, we affirm the judgment in part, vacate it in part,
and remand for resentencing.
1 I. Background
¶5 A motorcycle officer on patrol in Colorado Springs observed
Denhartog speeding and pulled him over. The officer parked about
twelve feet behind Denhartog’s Jeep.
¶6 According to the officer’s testimony at trial, as he looked down
to adjust his kickstand and prepared to dismount from his bike,
Denhartog suddenly reversed the Jeep and drove “extremely fast”
into the motorcycle, pushing the bike backwards and rendering it
inoperable. The officer did not see the Jeep coming toward him; he
realized that the Jeep was reversing only “as it hit [him].” The
impact caused the officer to fall and, as a result, he sustained
minor injuries.
¶7 Denhartog left the scene and drove to a nearby apartment
complex where he broke into an unoccupied apartment. The
prosecution presented evidence that, once inside, Denhartog caused
damage to the apartment and the tenant’s belongings and set fire to
contraband he was carrying. After several hours, police entered the
apartment and arrested him.
¶8 Denhartog was charged with fifteen felony, misdemeanor, and
traffic offenses. As relevant here, the jury convicted him of first
2 degree assault of a peace officer, two counts of second degree
assault, vehicular eluding, first degree criminal trespass, and
second degree burglary.
II. Sufficiency of the Evidence of First Degree Assault
¶9 A person commits the crime of first degree assault of a peace
officer when, with the intent to cause serious bodily injury, he
“threatens [the officer] with a deadly weapon” while the officer is
engaged in the performance of his or her duties, and the person
knows or reasonably should know that the victim is a peace officer.
§ 18-3-202(1)(e), C.R.S. 2018.
¶ 10 Denhartog does not dispute that a car can be used as a deadly
weapon, see People v. Stewart, 55 P.3d 107, 117 (Colo. 2002), or
that, when viewed in the light most favorable to the prosecution, the
evidence is sufficient to support a conviction for second degree
assault, see § 18-3-203(1)(b), C.R.S. 2018 (a person commits
second degree assault when, with intent to cause bodily injury, he
causes such injury to another person by means of a deadly
weapon). But, he says, the evidence is insufficient to prove first
degree assault of a peace officer because there was no evidence that
he used the Jeep to “threaten” the officer. We agree.
3 A. Standard of Review
¶ 11 We review sufficiency of the evidence claims de novo. People v.
Perez, 2016 CO 12, ¶ 8. We must determine whether the evidence,
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 jury that the defendant is guilty beyond a
reasonable doubt. People v. Campos, 2015 COA 47, ¶ 9.
¶ 12 Denhartog’s sufficiency of the evidence claim turns on the
meaning of a provision of the first degree assault statute. The
meaning of a statute is a question of law that we review de novo.
Id. at ¶ 10.
¶ 13 The People say that because Denhartog’s motion for judgment
of acquittal was too general and he failed to renew it at the close of
the evidence, he did not preserve his sufficiency of the evidence
claim, and we must review that claim for plain error.
¶ 14 Divisions of this court are split on whether to review an
unpreserved sufficiency of the evidence claim for plain error.
Compare People v. McCoy, 2015 COA 76M, ¶¶ 21, 36 (declining to
review for plain error), with People v. Lacallo, 2014 COA 78, ¶¶ 6, 20
(applying plain error standard of review to the defendant’s
4 unpreserved claim). We are persuaded by the majority’s reasoning
in McCoy, ¶¶ 6-36, and the reasoning of the special concurrences in
Lacallo, ¶¶ 59-73 (Roman, J., concurring in part and dissenting in
part), and People v. Heywood, 2014 COA 99, ¶¶ 44-52 (Gabriel, J.,
specially concurring), so we apply that reasoning here and reject the
People’s proposed standard of review.
B. “Threatening” a Peace Officer Requires Proof That Defendant Expressed a Purpose or Intent to Cause Harm
¶ 15 The first degree assault of a peace officer statute criminalizes
the use of a deadly weapon to threaten a peace officer. § 18-3-
202(1)(e). Denhartog argues that to “threaten” requires some
communication of an intent to take hostile action, and the evidence
showed only that he suddenly, and without warning, backed his
Jeep into the officer’s motorcycle. The People, on the other hand,
argue that to “threaten” includes not just communication of an
intent to take action but also the commission of any act that places
an officer at risk of harm. So, they contend, Denhartog
“threatened” the officer by hitting him with the Jeep.
5 ¶ 16 True, as the parties note, the first degree assault statute does
not define the term “threaten” or “threat.” But we are hardly writing
on a blank slate.
¶ 17 In interpreting various statutes in the criminal code, the
supreme court and divisions of this court have consistently defined
“threat” to mean “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.” People v. Hickman,
988 P.2d 628, 636 (Colo. 1999) (quoting People v. Hines, 780 P.2d
556, 559 (Colo. 1989), and Schott v. People, 174 Colo. 15, 18, 482
P.2d 101, 102 (1971) (defining “threat” as used in the retaliation
against a witness statute)); see also People v. Chase, 2013 COA 27,
¶ 69 (defining “threat” in the context of the stalking statute).
¶ 18 Nearly thirty years ago, in Hines, the supreme court defined
“threat” in the context of the felony menacing statute. 780 P.2d at
558-59. We find Hines particularly instructive because the felony
menacing statute proscribes, in part, the same conduct proscribed
by the first degree assault of a peace officer statute — using a
deadly weapon to threaten another person. See § 18-3-206(1)(a),
C.R.S. 2018 (a person commits felony menacing if, by any threat or
6 physical action, and with the use of a deadly weapon, he knowingly
places or attempts to place another person in fear of imminent
serious bodily injury). And in Hines, the supreme court held that
the act of threatening another person requires “a statement of
purpose or intent to cause injury or harm . . . .” 780 P.2d at 559.
¶ 19 We discern no basis to apply a different definition of “threaten”
to the same conduct described in the first degree assault statute,
and the People do not suggest one. To the contrary, Hickman
makes clear that we should apply the definition of threat provided
by the felony menacing case law to other provisions of the criminal
code, as the supreme court did in that case. 988 P.2d at 636; see
also § 2-4-101, C.R.S. 2018 (In interpreting a statute, “[w]ords or
phrases that have acquired a . . . particular meaning, whether by
legislative definition or otherwise, shall be construed accordingly.”).
¶ 20 Even if prior case law did not settle the question, we would
reject the People’s proposed definition of “threat,” which includes
any action that puts a peace officer at risk of harm, because it is
irreconcilable with the plain language of the statute. As a matter of
basic statutory interpretation, we construe statutes as written,
without adding words or phrases, People v. Diaz, 2015 CO 28, ¶ 12,
7 as we presume the legislature “meant what it clearly said,” State v.
Nieto, 993 P.2d 493, 500 (Colo. 2000). In our view, if the legislature
had intended section 18-3-202(1)(e) to prohibit any conduct that
places a peace officer at risk of harm, it would have said so. See
Diaz, ¶ 18. It surely knew how to convey that concept — section
18-3-202(1)(c), the preceding statutory provision, makes it unlawful
for a person to engage in conduct “which creates a grave risk of
death to another person” and results in serious bodily injury. We
must assume that, by using different language in subsection (1)(e),
the legislature intended to proscribe different conduct. See
Robinson v. Colo. State Lottery Div., 179 P.3d 998, 1009 (Colo. 2008)
(“[T]he use of different terms signals an intent on the part of the
General Assembly to afford those terms different meanings.”); see
also People v. Delgado-Elizarras, 131 P.3d 1110, 1113 (Colo. App.
2005) (distinguishing between the crime of reckless endangerment
— which requires proof that the defendant engaged in conduct that
created a substantial risk of serious bodily injury — and the crime
of first degree assault of a peace officer — which requires proof that
the defendant threatened a peace officer with a deadly weapon and
intended serious bodily injury).
8 ¶ 21 We find unpersuasive the People’s argument that only by
reading the statutory provision to reach any act that puts an officer
at risk of harm can we implement the legislature’s intent to
criminalize “all manner of threats” made against police officers. By
its terms, section 18-3-202(1)(e) criminalizes all threats involving a
deadly weapon made against a police officer.
¶ 22 Likewise, we do not share the People’s concern that adopting a
definition of “threat” endorsed by the supreme court since 1971, see
Schott, 174 Colo. at 18, 482 P.2d at 102, will lead to absurd results.
According to the People, requiring proof of an expression of intent to
do harm would allow a defendant to escape liability under section
18-3-202(1)(e) so long as the officer did not perceive the threat. But
the sufficiency of proof of “threatening” conduct has never turned
on “what the victim saw or heard during the course of [the criminal]
incident.” People v. Shawn, 107 P.3d 1033, 1035 (Colo. App. 2004)
(quoting People v. Saltray, 969 P.2d 729, 732 (Colo. App. 1998))
(interpreting the definition of “threat” in the felony menacing
statute). Instead, the “proper focus is on the intent and conduct of
the actor.” Id.
9 ¶ 23 Finally, we note that the People have not cited any case in any
jurisdiction — and we have not found one — that defines “threat” to
mean any act that places a person at risk of harm.
¶ 24 Accordingly, we conclude that to obtain a conviction for first
degree assault of a peace officer, the prosecution had to prove that,
by use of a deadly weapon, Denhartog expressed a purpose or
intent to cause injury or harm to the officer or the officer’s property.
C. The Evidence Does Not Show That Denhartog Threatened the Officer
¶ 25 The People contend that the evidence is sufficient to support a
conviction for first degree assault because the record shows that
“Denhartog put his Jeep in reverse and hit [the officer’s]
motorcycle,” which put the officer at risk of serious harm. The
People acknowledge, though, that Denhartog reversed the Jeep
without warning and that the officer did not see the Jeep coming
toward him before the impact. Thus, other than the act of hitting
the officer on his motorcycle, the People do not point to any conduct
by Denhartog that might constitute “threatening” the officer.
¶ 26 To the extent the People rely on the officer’s testimony that the
Jeep represented a “threat” to his safety, we disagree that the
10 testimony renders the evidence sufficient. For one thing, as we
have explained, the fact that the collision put the officer at risk is
not enough. And, as we have also explained, the victim’s perception
of the threat is not dispositive.
¶ 27 Thus, we conclude that the act of reversing into the officer, on
its own, is not sufficient to prove that Denhartog threatened a peace
officer.
¶ 28 We do not mean to suggest that there are no circumstances
under which a person could use a vehicle as a deadly weapon to
threaten a peace officer within the meaning of section 18-3-
202(1)(e). Nor is it necessary for us to make any pronouncements
about what kind of expressive conduct constitutes a statement or
declaration of intent to harm another person. In other words, we do
not foreclose an interpretation of “threaten” that includes nonverbal
communication of an intent to harm. We determine only that, in
this case, there was no expression of any kind of an intent to harm
the officer, but merely conduct that caused harm.
¶ 29 Accordingly, we determine that the evidence was insufficient to
sustain a conviction for first degree assault of a peace officer. We
therefore vacate the conviction and sentence and remand for the
11 court to enter a judgment of acquittal on the charge of first degree
assault. See People v. Cardenas, 2014 COA 35, ¶ 21 (noting that
judgment of acquittal must be entered when the evidence is
insufficient to support the jury’s guilty verdict).
III. Admission of CRE 404(b) Evidence
¶ 30 Next, Denhartog contends that the court erred in admitting
evidence under CRE 404(b) of his prior assault of a peace officer.
We disagree.
A. The Prior Bad Act Evidence
¶ 31 The primary dispute at trial was whether Denhartog intended
to hit the officer with his Jeep or whether he intended only to hit
the motorcycle and disable it.
¶ 32 In accordance with Rule 404(b), the prosecution filed a pretrial
notice of intent to introduce evidence that, fifteen years earlier,
Denhartog had assaulted a police officer under similar
circumstances. According to the officer involved in the prior
incident, police attempted to stop Denhartog for a traffic offense.
He initially eluded police, but eventually stopped when he reached
the dead end of a parking lot. When the officer pulled his patrol car
behind Denhartog’s car, Denhartog suddenly reversed into the
12 officer’s car and then tried to flee the scene. The officer tackled him
to the ground and a physical altercation ensued, during which
Denhartog tried to disarm the officer. Two civilians passing by
helped the officer subdue Denhartog so that he could be arrested.
He later pleaded guilty to second degree assault of a peace officer.
¶ 33 Over Denhartog’s objection, the district court admitted the
evidence to show intent and absence of mistake or accident.
B. Standard of Review
¶ 34 Trial courts are afforded substantial discretion in deciding
whether to admit evidence of other acts. Yusem v. People, 210 P.3d
458, 463 (Colo. 2009). We review the trial court’s decision for an
abuse of discretion and will disturb its ruling only if it was
manifestly arbitrary, unreasonable, or unfair. Id.
¶ 35 Because Denhartog preserved his claim, we review it under a
harmless error standard. Under this standard, even if we discern
an error, reversal is not required unless the error substantially
influenced the verdict or affected the fundamental fairness of the
trial. People v. Conyac, 2014 COA 8M, ¶ 94.
C. The District Court Did Not Abuse Its Discretion in Admitting the Prior Act Evidence
13 ¶ 36 Evidence is not admissible to prove the character of a person
in order to show that he acted in conformity with that character on
a particular occasion. CRE 404(b). However, evidence of other
crimes, wrongs, or acts is admissible if used for purposes
independent of an inference of bad character. Id.
¶ 37 In People v. Spoto, 795 P.2d 1314, 1318 (Colo. 1990), the
supreme court set forth a four-part test to determine the
admissibility of such evidence: (1) the evidence must relate to a
material fact; (2) the evidence must be logically relevant; (3) the
logical relevance of the evidence must be independent of the
prohibited inference that the defendant has a bad character; and (4)
the probative value of the evidence must not be substantially
outweighed by the danger of unfair prejudice.
¶ 38 Denhartog argues that evidence of his prior assault of a police
officer was not logically relevant to prove his intent to assault the
officer in this case. According to Denhartog, the jury should have
determined his intent based on whether the officer was on the
motorcycle at the time of the collision. And, he says, evidence that
he previously rammed into a different officer’s patrol vehicle did not
14 make it more or less likely that the officer was on his motorcycle
when he was hit.
¶ 39 But at trial, Denhartog argued that whether or not the officer
was on his motorcycle at the time of impact, he did not intend to hit
him but only to disable the motorcycle. If he did hit the officer,
Denhartog told the jury, it “was an accident.”
¶ 40 Thus, the evidence was relevant to establish Denhartog’s
intent to commit an assault. See Yusem, 210 P.3d at 464 (prior act
evidence is admissible to prove elements of the charged offense). To
the extent Denhartog claimed that any contact with the officer was
purely accidental, the evidence was relevant to show that he had
previously intentionally injured a police officer under similar
circumstances. See People v. Rowe, 2012 COA 90, ¶¶ 42-43 (prior
act evidence is logically relevant when it rebuts defense of mistake).
¶ 41 For two reasons, we reject Denhartog’s argument that the
prior conduct was too dissimilar from the instant offense to be
probative of anything other than his propensity to assault police
officers.
¶ 42 First, the requirement that the evidence have relevance
independent of an inference of conformity with bad character does
15 not “demand the absence of the inference” entirely, but simply
means that the evidence cannot be relevant only to show a
propensity to commit crimes. People v. Snyder, 874 P.2d 1076,
1080 (Colo. 1994).
¶ 43 Second, the degree of similarity necessary to give the evidence
sufficient probative force for admission varies considerably
depending on the purpose for which it is offered. People v. Rath, 44
P.3d 1033, 1042 (Colo. 2002). For example, admission of evidence
of design or method, offered to prove the identity of the defendant
as the perpetrator, depends much more heavily on the similarity of
the crimes “than evidence offered merely to prove that the
defendant acted intentionally.” Id.
¶ 44 Here, in both the prior incident and the instant case, when
Denhartog was pulled over for a traffic offense, he rammed his
vehicle into the police vehicle in an attempt to flee the scene and
avoid arrest. In the prior incident, when he could not flee in his
car, Denhartog engaged in a physical fight with the officer in an
effort to escape and intentionally caused the officer bodily injury.
¶ 45 We conclude that the incidents were similar enough that the
prior act evidence was admissible for the nonpropensity purpose of
16 rebutting Denhartog’s defense that his conduct was accidental
rather than intentional. See People v. Harris, 2016 COA 159, ¶ 87
(prior act evidence was relevant for nonpropensity purpose of
negating the defendant’s theory that animals were malnourished
due to mistake or accident).
¶ 46 Finally, we conclude that the district court did not abuse its
discretion in balancing the CRE 403 factors of probative value and
prejudice. Because the balancing test favors admission of evidence,
a reviewing court must afford the evidence the maximum probative
value attributable by a reasonable jury and the minimum unfair
prejudice to be expected. Rath, 44 P.3d at 1043.
¶ 47 The central dispute here was whether Denhartog intended to
injure the officer when he reversed his Jeep into the officer’s
motorcycle. Thus, the prior act evidence, which was directly
relevant to the dispute, was highly probative. See People v.
McBride, 228 P.3d 216, 227 (Colo. App. 2009). And while prior act
evidence always carries a risk of unfair prejudice, it was within the
district court’s discretion to find this risk did not substantially
outweigh the probative value of the evidence. Id.
17 ¶ 48 In assessing whether the trial court’s admission of the prior
act evidence was an abuse of discretion, we ask not whether we
would have reached a different result but, rather, whether the
district court’s decision fell within a range of reasonable options.
See People v. Ramos, 2012 COA 191, ¶ 59, aff’d, 2017 CO 6. On
this record, we cannot say that the district court’s decision to admit
the evidence exceeded the bounds of rationally available choices
and was therefore manifestly arbitrary, unreasonable, or unfair.
IV. Prosecutorial Misconduct
¶ 49 Denhartog contends that prosecutorial misconduct during
closing argument requires reversal of his assault and eluding
convictions.
A. Preservation and Standard of Review
¶ 50 In reviewing a claim of prosecutorial misconduct, we use a
two-step analysis: first, we determine whether the prosecutor’s
questionable conduct was improper based on the totality of the
circumstances and, second, whether such actions warrant reversal
according to the proper standard of review. Wend v. People, 235
P.3d 1089, 1096 (Colo. 2010). If the defendant objected at trial, we
review for harmless error. Id. at 1097. Otherwise, we review for
18 plain error. Id. Prosecutorial misconduct constitutes plain error
only when there is a substantial likelihood that it affected the
verdict or that it deprived the defendant of a fair and impartial trial.
People v. Strock, 252 P.3d 1148, 1153 (Colo. App. 2010).
B. Alleged Prosecutorial Misconduct Does Not Warrant Reversal
¶ 51 First, Denhartog contends that the prosecutor “denigrated” the
defense by characterizing defense counsel’s arguments as a
“gigantic pot” in which he “threw in” “conspiracy theories” to
“immobilize” jurors.
¶ 52 A prosecutor may not “state or imply that defense counsel has
presented the defendant’s case in bad faith or otherwise make
remarks for the purpose of denigrating the defense.” People v.
Collins, 250 P.3d 668, 678 (Colo. App. 2010).
¶ 53 But here, the prosecutor’s comments “did nothing more than
suggest to the jury that the defendant’s theory as to why the jury
should find a reasonable doubt was so unlikely as to strain
credibility.” Id. (no error in prosecutor calling the defense’s theory
“absurd”).
¶ 54 In his closing argument, defense counsel argued that the
motorcycle officer “added in . . . [and] changed details to his story.”
19 Counsel implied that the police officers had lied about Denhartog
using a broken beer bottle to fend them off before his arrest. And
defense counsel also argued that police officers, rather than
Denhartog, might have caused damage to the apartment and its
belongings.
¶ 55 When viewed in context, then, the prosecutor’s comments
were a direct response to defense counsel’s argument that the
officers had conspired to lie and tamper with evidence. See People
v. Douglas, 2012 COA 57, ¶¶ 68, 70 (prosecutor’s comments that
directly responded to defense counsel’s arguments were not
prejudicial misconduct); see also People v. Liggett, 114 P.3d 85, 89
(Colo. App. 2005) (prosecutor may comment on the strength of the
defendant’s theory of the case), aff’d, 135 P.3d 725 (Colo. 2006).
Accordingly, we discern no error.
¶ 56 Second, Denhartog says that the prosecutor “unfairly
exploited” the district court’s ruling excluding his hearsay
statements to first responders that he did not intend to run over the
¶ 57 During closing argument, the prosecutor asked the jury:
20 What did we hear significant evidence of during this trial? This was not a love tap. This was not, I want to disable this motorcycle. I want to knock over this motorcycle so I can get away.
¶ 58 True, as Denhartog notes, a prosecutor may not refer to facts
not in evidence, see People v. Walters, 148 P.3d 331, 334 (Colo.
App. 2006), which, we assume, would include facts excluded from
evidence. But the prosecutor did not ask the jury to speculate
about facts not in evidence; instead, he argued that the facts in
evidence showed Denhartog’s intent to hit the officer with his Jeep.
As the prosecutor stated immediately after the disputed statement,
“This is not a tap. This is a significant impact. There was a
significant amount of force.”
¶ 59 Thus, the prosecutor properly argued that the facts in
evidence established Denhartog’s intent to commit the crimes
charged. See Domingo-Gomez v. People, 125 P.3d 1043, 1048 (Colo.
2005) (“Final argument may properly include the facts in evidence
and any reasonable inferences drawn therefrom.”). We therefore
perceive no error.
¶ 60 Third, Denhartog argues that the prosecutor improperly
appealed to the jurors’ sympathies by asking them to imagine a “19-
21 year-old girl” on the motorcycle, rather than the police officer, at the
time of the collision.
¶ 61 While a prosecutor may employ rhetorical devices and engage
in oratorical embellishment and metaphorical nuance, he may not
thereby induce the jury to determine guilt on the basis of passion or
prejudice, attempt to inject irrelevant issues into the case, or
accomplish some other improper purpose. People v. Allee, 77 P.3d
831, 837 (Colo. App. 2003). And even accepting that “arguments
delivered in the heat of trial are not always perfectly scripted,”
McBride, 228 P.3d at 221, and may be inartful or ambiguous, see
id., we discern no proper purpose for the prosecutor’s comments
and instead construe them as an appeal to the “emotionalism” of
the jurors, People v. Eckert, 919 P.2d 962, 967 (Colo. App. 1996).
¶ 62 But because defense counsel failed to object, we will not
reverse unless the misconduct amounts to plain error. To
constitute plain error, the misconduct must be flagrant or glaring or
tremendously improper, and so undermine the fundamental
fairness of the trial as to cast serious doubt on the reliability of the
judgment of conviction. People v. Rhea, 2014 COA 60, ¶ 43.
22 ¶ 63 We cannot conclude that the brief comments satisfied the high
standard for reversal. The focus of this portion of the prosecutor’s
argument was Denhartog’s conduct, and the weakness of his theory
of defense, not the attributes of the imaginary victim. Moreover, the
court instructed the jurors that they must not be influenced by
sympathy, bias, or prejudice in rendering their decision. We
presume that the jurors followed the court’s instructions, absent
evidence to the contrary. People v. Garcia, 2012 COA 79, ¶ 20.
Thus, we perceive no plain error.
¶ 64 Fourth, Denhartog contends that the prosecutor misstated the
evidence in recounting a witness’s testimony.
¶ 65 At trial, the witness testified that the officer was “straddling”
the motorcycle as the Jeep reversed, but “[b]y the time the Jeep hit
it, [the officer] was off the bike.” During closing argument, however,
the prosecutor claimed that the witness had “squarely put[] [the
officer] on that bike” at the time of the collision. Defense counsel
did not object to the comments.
¶ 66 A prosecutor may not misstate the evidence in closing
argument. People v. Nardine, 2016 COA 85, ¶ 35. Still, within the
context of the entire closing argument, the prosecutor’s single
23 inaccurate characterization of the witness’s somewhat ambiguous
testimony was a small part of the summation. It certainly did not
“predominate over those parts of the argument that appropriately
address[ed] the evidence and the prosecution theory of the case.”
Eckert, 919 P.2d at 967. The prosecutor’s single misstatement does
not cause us to question the reliability of the judgment of conviction
and we therefore discern no plain error.
¶ 67 Finally, we are not persuaded that, cumulatively, the two
instances of prosecutorial misconduct warrant reversal of
Denhartog’s assault and eluding convictions.
¶ 68 As an initial matter, the instances of misconduct related only
to Denhartog’s intent to commit assault; thus, we would not, under
any circumstances, reverse the eluding conviction. But more to the
point, neither instance of misconduct was egregious. And even
considered together, the brief improper comments do not
undermine the reliability of the verdict, particularly in light of the
extensive evidence of Denhartog’s intent to injure the officer. See
People v. Manyik, 2016 COA 42, ¶ 41 (no substantial likelihood that
prosecutorial misconduct affected the verdict when evidence of the
defendant’s guilt was strong). Regardless of whether the officer was
24 on the motorcycle or in the process of dismounting at the precise
moment that Denhartog rammed into the bike, a reasonable jury
could certainly have inferred from his conduct that he intended to
injure the officer.
V. Post-Trial Errors
¶ 69 Denhartog identifies three alleged errors committed at the
sentencing stage of the proceedings. First, he says that the court
was required to run his sentence for first degree assault and his
sentence for second degree assault concurrently. Next, he says his
two convictions for second degree assault merge and one conviction
must be vacated. And finally, he argues that, because first degree
criminal trespass is a lesser included offense of second degree
burglary, his trespass conviction must merge into the burglary
conviction.
A. First Degree Assault Sentence
¶ 70 We have determined that the evidence was insufficient to
support Denhartog’s conviction for first degree assault, and we have
directed the district court, on remand, to enter a judgment of
acquittal on this count. Accordingly, Denhartog’s challenge to the
25 sentence is moot, and we will not review it. Trinidad Sch. Dist. No. 1
v. Lopez, 963 P.2d 1095, 1102 (Colo. 1998).
B. Multiplicity of Second Degree Assault Convictions
¶ 71 Denhartog contends, the People concede, and we agree that
his two convictions for second degree assault must merge for
multiplicity.
¶ 72 Denhartog was convicted of two counts of second degree
assault under section 18-3-203: one for causing bodily injury with a
deadly weapon (subsection (1)(b)) and one for causing bodily injury
to prevent a peace officer from performing a lawful duty (subsection
(1)(c)). And the parties agree that both convictions were based on
Denhartog’s sudden reversal of the Jeep into the motorcycle officer.
¶ 73 Whether convictions for different offenses merge is a question
of law that we review de novo. Page v. People, 2017 CO 88, ¶ 6.
¶ 74 Multiplicity may arise “where a defendant is charged with and
convicted of multiple counts under a single criminal statute, and
the statute does not create more than one offense but, rather,
provides for alternative ways of committing the same offense.”
People v. Barry, 2015 COA 4, ¶ 95. When a court enters multiple
convictions under such a scheme, it violates a defendant’s right
26 against double jeopardy. Woelhaf v. People, 105 P.3d 209, 215
(Colo. 2005); see also People v. Wood, 2019 CO 7, ¶ 23.
¶ 75 By entering convictions under subsections (1)(b) and (1)(c) of
the second degree assault statute, the district court violated
Denhartog’s right to be free from double jeopardy. See People v.
Anderson, 2016 COA 47, ¶¶ 61-62 (first degree assault statute
established “a single offense . . . with alternative means of
commission”) (cert. granted Nov. 21, 2016). Therefore, we remand
the case to the district court to merge the two convictions. To
maximize the effect of the jury’s verdict, see People v. Glover, 893
P.2d 1311, 1314 (Colo. 1995), the trial court should vacate the
conviction entered under section 18-3-203(1)(c) and retain the
conviction entered under section 18-3-203(1)(b), see People v. Delci,
109 P.3d 1035, 1038 (Colo. App. 2004) (vacating the multiplicitous
conviction that provides a less severe penalty).
C. Lesser Included Offense
¶ 76 Denhartog was convicted of first degree criminal trespass and
second degree burglary. He contends that first degree criminal
trespass is a lesser included offense of second degree burglary and
therefore these convictions must merge. We disagree.
27 ¶ 77 A defendant may not be convicted of two offenses based on the
same conduct if “[o]ne offense is included in the other . . . .” § 18-1-
408(1)(a), C.R.S. 2018; see also Reyna-Abarca v. People, 2017 CO
15, ¶ 51. But the supreme court has expressly held that first
degree criminal trespass is not a lesser included offense of second
degree burglary. People v. Garcia, 940 P.2d 357, 362 (Colo. 1997).
¶ 78 Denhartog points out that the supreme court’s more recent
case law, in which it clarified the standard for identifying a lesser
included offense, appears to call into question Garcia’s continued
viability. See People v. Rock, 2017 CO 84, ¶ 19 n.5. Still, the
supreme court “alone can overrule [its] prior precedents concerning
matters of state law.” People v. Novotny, 2014 CO 18, ¶ 26. Thus,
if a precedent of the supreme court “has direct application in a
case, yet appears to rest on reasons rejected in some other line of
decisions,” the court of appeals “should follow the case which
directly controls,” leaving to the supreme court “the prerogative of
overruling its own decisions.” Rodriguez de Quijas v. Shearson/Am.
Express, Inc., 490 U.S. 477, 484 (1989).
28 ¶ 79 We therefore must reject Denhartog’s claim that first degree
criminal trespass is a lesser included offense of second degree
burglary.
VI. Conclusion
¶ 80 We remand the case for the district court to (1) vacate
Denhartog’s conviction and sentence for first degree assault and
entry of a judgment of acquittal on that count; (2) merge
Denhartog’s convictions for second degree assault and vacate the
conviction entered under section 18-3-203(1)(c); and (3) resentence
Denhartog. We otherwise affirm the judgment.
JUDGE HAWTHORNE and JUDGE FOX concur.