25CA0371 Wierimaa v Cheng 04-09-2026
COLORADO COURT OF APPEALS
Court of Appeals No. 25CA0371 City and County of Broomfield District Court No. 23CV30043 Honorable Mark Warner, Judge
Thomas Wierimaa,
Plaintiff-Appellant,
v.
Anna Cheng,
Defendant-Appellee.
JUDGMENT AFFIRMED IN PART AND REVERSED IN PART, AND CASE REMANDED WITH DIRECTIONS
Division I Opinion by JUDGE MEIRINK J. Jones and Lum, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced April 9, 2026
Artemis Law, LLC, Leigh Horton, Denver, Colorado, for Plaintiff-Appellant
The Burnham Law Firm, P.C., Brian D. Teed, Centennial, Colorado, for Defendant-Appellee ¶1 Plaintiff, Thomas Wierimaa, appeals the trial court’s judgment
entered on a jury verdict finding that he assaulted defendant, Anna
Cheng, his then-wife, and awarding her $468,750 in damages. We
affirm in part and reverse in part and remand the case to the trial
court with directions.
I. Background
¶2 Cheng has two children from a previous marriage, S.W. and
H.C. She and Wierimaa married in 2017 and had one daughter,
B.W., in 2019. During their relationship, Cheng was mostly
unemployed; Wierimaa worked full-time and attended law school.
Wierimaa filed for legal separation in September 2021, and the
couple finalized their divorce in January 2023. During the divorce
proceeding, Cheng told people that Wierimaa was abusive to her
and the children.
¶3 Wierimaa filed the underlying lawsuit on February 10, 2023.
He brought claims of (1) abuse of process; (2) defamation (child
abuse); (3) defamation (domestic violence); (4) intentional infliction
of emotional distress (public smear campaign); (5) intentional
infliction of emotional distress (kidnapping minor child); and
1 (6) tortious interference with parental relations (September 2022
kidnapping of minor child).1
¶4 Cheng denied the allegations and filed counterclaims for
(1) abuse of process; (2) defamation per se; (3) extreme and
outrageous conduct (emotional distress); (4) assault; and
(5) battery. Cheng supported her counterclaims by alleging the
following incidents:
• In February 2016, while on vacation in Cancun, Mexico,
Wierimaa grabbed Cheng by the wrist, threw her onto a bed,
and caused her to fall on a hand mirror, which left her with
bruises and a back injury (the Cancun incident).
• On February 4, 2018, Wierimaa disciplined H.C. while
watching the Super Bowl. When Cheng protested, Wierimaa
yelled at her and told her to leave the home. She and the
children left (the Super Bowl incident).
1 Wierimaa later amended his complaint and added claims of
(7) abuse of process (2023 statements to child protective services); (8) malicious prosecution (2023 statements to child protective services); (9) defamation (false allegations of child abuse after February 14, 2023); (10) defamation (false allegations of domestic abuse after February 14, 2023); and (11) exemplary damages.
2 • On September 8, 2019, Wierimaa yelled at Cheng. She tried to
leave the home with all her children, but Wierimaa would not
let her take B.W. She left with S.W. and H.C. (the September
8 incident).
• On March 10, 2021, Wierimaa became angry because Cheng
didn’t know he was leaving on a business trip (the March 10
incident).
• On September 16, 2021, Wierimaa told Cheng that he had
filed for legal separation and called her a “child,” “immature,”
and a “cunt” (the September 16 incident).
• On March 11, 2022, Wierimaa threatened that he would
litigate against Cheng until B.W. turned eighteen (the March
11 incident).
• On July 5, 2022, police came to Cheng’s home to perform a
welfare check. During the visit, Cheng contacted Wierimaa
and put him on speaker phone. The officers noted that
Wierimaa sounded controlling and threatening (the July 5
3 ¶5 Wierimaa and Cheng filed separate special motions to dismiss
under Colorado’s anti-SLAPP2 law, which the court denied.
Wierimaa filed a second motion to dismiss, which the trial court
partially granted with respect to Cheng’s assault claim concerning
the Cancun incident (because it was outside the statute of
limitations) and allowed her to amend her counterclaims, which she
did. She removed the Cancun incident and added more details
about the September 8 incident. Specifically, she indicated that
when she was getting the children ready that morning, Wierimaa
verbally berated her and the children. Cheng went to B.W.’s room
to pick her up from her crib and console her after she started
crying. B.W.’s crib was in the bedroom’s walk-in closet. Wierimaa
followed Cheng into the bedroom, continued to yell at her, used his
body to block Cheng in the closet, and “physically snatched” B.W.
out of Cheng’s arms. Cheng left the closet, grabbed S.W. and H.C.
along with their things for the day, and then left with the two older
children. During this time, Wierimaa continued to berate her,
2 “SLAPP” stands for “strategic lawsuit against public participation.”
Hinds v. Foreman, 2026 CO 9, ¶ 1.
4 saying she was a “horrible mother,” a “mistake,” and a “horrible
person.”
¶6 Wierimaa moved for summary judgment at the conclusion of
discovery, arguing that (1) no battery occurred because there was
no physical contact during the alleged events; (2) no assault
occurred because Cheng was not placed in apprehension of any
immediate physical contact; (3) Cheng could not prove any abuse of
process; (4) Cheng’s defamation per se claims were barred by the
absolute litigation privilege and the doctrine of substantial truth;
and (5) Cheng could not prove or establish extreme and outrageous
conduct. The court granted the motion with respect to Cheng’s
counterclaims of (1) abuse of process; (2) defamation; and
(3) extreme and outrageous conduct, but it denied summary
judgment with respect to Cheng’s assault and battery claims arising
from the September 8 incident.
¶7 Wierimaa filed two motions in limine. The first was to exclude
evidence of Cheng’s dismissed counterclaims and to limit evidence
and testimony on Cheng’s assault and battery counterclaims to the
events that occurred on September 8, 2019. The second was to
exclude evidence of a phone call Wierimaa had with a health care
5 insurance agent in May 2024 to illustrate his “aggressive
character.” During the pretrial conference, the court granted
Wierimaa’s motions because the challenged testimony would be
unduly prejudicial. However, the court noted that the evidence
could be admitted at trial if it became relevant.
¶8 At trial, Cheng testified that she and Wierimaa had the
following acrimonious arguments during their relationship:
• During a family trip to India in 2016, Cheng asked Wierimaa
to get off his phone during breakfast. An argument ensued,
Wierimaa began yelling at Cheng, and Wierimaa went to pack
his bags to return home to Denver. Cheng and her children
didn’t have a flight home, so Cheng begged Wierimaa to return
to the hotel room, which he eventually did (the India incident).
• During a family trip to Peru in 2016, Cheng asked Wierimaa to
take a picture of her and the children at the base of Machu
Picchu, to which Wierimaa responded, “No, you have enough
F---ing photos.” Wierimaa left Cheng and S.W. and took H.C.
(who was then one year old) to the top of Machu Picchu.
Cheng and S.W. (who was then five years old) climbed Machu
Picchu but didn’t reconnect with Wierimaa until they
6 descended the mountain and found Wierimaa and H.C. at a
cafeteria at Machu Picchu’s base (the Peru incident).
• Returning from a visit to Toronto in 2017, the family was
stopped at the border near Detroit because of a minor issue
with Cheng’s passport. Cheng and the children sat in a
waiting room while Wierimaa paced back and forth, became
agitated, and said, “I’m American. I don’t need to do this.”
Wierimaa asked a border agent several times how long they
would need to wait. The last time he approached the agent,
two officers physically removed Wierimaa and detained him
while several people watched and the children started crying
(the Detroit incident).
• When the couple was in Krakow, a technician called the
couple to let them know that the results of their in vitro
fertilization treatment had been unsuccessful and that their
embryos weren’t viable. Wierimaa yelled at the technician over
the phone and told the technician that it was the clinic’s fault
that the treatment was unsuccessful. The facility
subsequently dismissed the couple as clients because of
Wierimaa’s behavior (the Krakow incident).
7 • Cheng described the Super Bowl incident and added the
following details: On February 4, 2018, Wierimaa was
watching the Super Bowl, and S.W. and H.C. were in the
basement playing. When the children came up from the
basement, they didn’t turn off the basement lights. Because
H.C. was the last to come up, Wierimaa picked H.C. up by the
shoulders, walked him to the basement, and made him turn
off the lights. H.C. was scared and crying. When H.C. came
upstairs again, Cheng testified that he had a new cut on his
back.
• Cheng also expounded on the September 8 incident: On
September 8, 2019, B.W. was being fussy, so Cheng stayed
with her until 3 a.m. Cheng put B.W. in her crib. At 7 a.m.,
when Cheng was readying the older children, B.W. started
fussing again. Cheng returned to B.W.’s bedroom and
grabbed B.W. Wierimaa stood in the doorway, blocked Cheng
from leaving, and grabbed B.W. out of her arms before yelling
at Cheng, H.C., and S.W. to leave the house.
• On September 26, 2021, Wierimaa yelled at Cheng in front of
the children because she was going to take S.W. and H.C. to
8 the zoo without B.W. When Cheng and the older children
returned, B.W. had a red mark on her cheek (the September
26 incident).
¶9 Sadie Skattum, a counselor at H.C. and S.W.’s school, testified
that she made a child protective services (CPS) report in May 2021
after Wierimaa yelled at the children during pickup. She testified
that she met with H.C. and S.W. after the incident and they told her
that Wierimaa yelled at them often but that he was never physical.
After Wierimaa’s counsel objected, Skattum’s testimony regarding
S.W. and H.C.’s comments was stricken from the record, but the
CPS report was admitted into evidence.
¶ 10 Dr. Thomas Pham, B.W.’s pediatrician, also testified at trial.
Pham testified that Cheng brought B.W. to his office after the
September 26 incident so that he could examine a red mark on
B.W.’s cheek. Pham also testified that Cheng was “very concerned.
She was scared . . . . [S]he, I think, did fear for her life and feared
for her children’s lives.”
¶ 11 Rebekah Mauldin, an intake caseworker with Broomfield
County Human Services, also testified. Mauldin’s testimony
focused on the CPS report that Skattum, S.W., and H.C. had
9 concerns about B.W. being with Wierimaa because of his yelling.
Wierimaa’s counsel objected, but the court overruled the objection
because Mauldin’s testimony concerned information contained in
the previously admitted CPS report.
¶ 12 At the close of Wierimaa’s case, Cheng’s counsel moved for a
directed verdict on all of Wierimaa’s claims. The court granted a
directed verdict on Wierimaa’s claims for abuse of process (claims
one and seven) and malicious prosecution (claim eight). But it
denied Cheng’s motion for a directed verdict on Wierimaa’s claims
for defamation (claims two, three, and nine), intentional infliction of
emotional distress (claims four and five), and tortious interference
with parental relations (claim six). At the close of Cheng’s case,
Wierimaa’s counsel also moved for a directed verdict on Cheng’s
assault and battery claims, but the court denied the motion after
finding that there was sufficient evidence for the jury to consider
them.
¶ 13 The jury found in Cheng’s favor on all of Wierimaa’s claims
and on her assault counterclaim, awarding her $468,750 in
damages on that claim. Wierimaa’s attorney moved for a new trial
under C.R.C.P. 59(d), which the court denied.
10 II. Analysis
¶ 14 Wierimaa contends that (1) the trial court erred by admitting
significant and prejudicial inadmissible evidence; (2) the jury’s
finding that he assaulted Cheng isn’t supported by sufficient
evidence; (3) the trial court improperly instructed the jury; and
(4) the jury’s award of $468,750 in damages isn’t supported by the
evidence. We disagree with the first three contentions but agree
with the fourth.
A. Preservation
¶ 15 As an initial matter, Cheng argues that Wierimaa failed to
preserve the evidentiary arguments he now raises on appeal
because he didn’t make contemporaneous objections during trial.
Cheng also asserts that Wierimaa failed to preserve any challenges
to the jury instructions. We agree that some of the issues Wierimaa
raises on appeal weren’t preserved.
¶ 16 Preservation is a threshold question, and in civil cases, we
don’t address insufficiently preserved contentions. Rinker v. Colina-
Lee, 2019 COA 45, ¶ 22. An issue is preserved for appeal when it is
brought to the trial court’s attention and the court has an
opportunity to rule on it. In re Marriage of Turilli, 2021 COA 151,
11 ¶ 12. To help us determine whether an issue is preserved, an
appellant must state in his opening brief “whether the issue was
preserved, and if preserved, the precise location in the record where
the issue was raised and where the court ruled.” C.A.R. 28(a)(7)(A).
1. The Motions in Limine and Cheng’s Testimony
¶ 17 In general, a court’s definitive ruling on a motion in limine
preserves the issues raised therein for appeal. CRE 103(a); see also
Uptain v. Huntington Lab, Inc., 723 P.2d 1322, 1330-31 (Colo. 1986)
(pretrial ruling on a motion in limine sufficiently preserves an issue
for appeal). A party abiding by the court’s order need not renew an
objection at trial to preserve the issue for appeal. Bennett v. Greeley
Gas Co., 969 P.2d 754, 758 (Colo. App. 1998). But see People v.
Dinapoli, 2015 COA 9, ¶ 19 (When a party “violates the court’s
pretrial order [excluding evidence] at trial, the opposing party must
contemporaneously object to preserve the issue for appeal.”).
¶ 18 Wierimaa filed a motion in limine to exclude evidence and
testimony of Cheng’s dismissed counterclaims and to limit evidence
and testimony on her assault and battery counterclaims to the
September 8 incident. He argued that any testimony and other
evidence about events that fell outside the September 8 incident
12 were too dissimilar and remote in time and would unduly prejudice
him. He also filed a separate motion in limine seeking to exclude
evidence and testimony of a call he had with a health care
insurance agent in May 2024 because it occurred after the
September 8 incident. The court made an oral ruling granting both
motions in limine, finding that the challenged incidents were remote
and dissimilar and that their probative value was substantively
outweighed by the danger of undue prejudice. See CRE 403. But
the court noted that it could reconsider its ruling at trial, which
placed both parties’ attorneys on notice that, if such evidence was
sought to be introduced, they needed to make contemporaneous
objections to preserve their evidentiary concerns on appeal. See,
e.g., Ohler v. United States, 529 U.S. 753, 758 n.3 (2000)
(recognizing that trial courts may reconsider evidentiary rulings as
the record develops); see also United States v. Morales-Quinones,
812 F.2d 604, 609-10 (10th Cir. 1987) (defense counsel had
“opened the door” to testimony). Despite that notice, at trial,
Wierimaa’s counsel didn’t object to Cheng’s testimony regarding the
India, Peru, Krakow, March 10, or March 11 incidents. Wierimaa’s
13 counsel did, however, object to Cheng’s testimony regarding the
Detroit incident.
¶ 19 During a break in Cheng’s testimony, the court indicated that
there had been “some intermittent objections and sometimes things
weren’t objected to.” It reminded counsel that “if nobody’s
objecting, I’ll just keep letting it in.” Following the court’s reminder,
Wierimaa’s counsel lodged contemporaneous objections to Cheng’s
testimony concerning the September 16, Super Bowl, and July 5
incidents.
¶ 20 Because Wierimaa’s counsel didn’t contemporaneously object
to Cheng’s testimony concerning the India, Peru, Krakow, March
10, and March 11 incidents, arguments as to the admissibility of
testimony about those incidents are unpreserved, and we won’t
address them. But because Wierimaa’s counsel objected to Cheng’s
testimony regarding the Detroit, September 16, Super Bowl, and
July 5 incidents, arguments as to the admissibility of testimony
about those incidents are sufficiently preserved, and we address
whether Cheng’s testimony about those incidents was properly
admitted infra Part II.B.
14 2. Pham’s Testimony
¶ 21 Wierimaa argues that the trial court erred by allowing Pham to
testify that Cheng “fear[ed] for her life and feared for her children’s
lives” because that testimony was speculative. Again, Wierimaa’s
counsel didn’t object to this testimony at trial. Because this
argument is unpreserved, we also decline to review it. See Gestner
v. Gestner, 2024 COA 55, ¶ 18 (“In civil cases, issues not raised in
or decided by the district court generally will not be addressed for
the first time on appeal.”).
3. Jury Instructions
¶ 22 Cheng contends — and we agree — that Wierimaa’s arguments
regarding the final jury instructions were not preserved.
¶ 23 The jury instructions were the subject of extensive discussion
throughout the trial. Both parties’ attorneys participated in
drafting the instructions and conferred with the trial court on
multiple occasions before the instructions were submitted to the
jury. The court expressly invited counsel to raise any objections or
concerns throughout the instruction drafting process. Wierimaa’s
counsel identified a wording issue with Jury Instruction No. 13 but
later withdrew any objection by affirmatively agreeing to the
15 instruction as written. Counsel for both parties then confirmed on
the record that they had no objections to the instructions, which
were later finalized and provided to the jury. Because Wierimaa’s
counsel didn’t object to the jury instructions, the court didn’t have
an opportunity to rule on any issues Wierimaa now raises on
appeal. Because the issue was not preserved, we decline to review
it. See C.R.C.P. 51 (only objections made to jury instructions before
they are given to the jury may be considered on appeal); Voller v.
Gertz, 107 P.3d 1129, 1131 (Colo. App. 2004) (same).
B. The Trial Court Did Not Err by Admitting Character Evidence
¶ 24 Wierimaa contends that the trial court erred by admitting
character evidence relating to the Detroit, September 16, Super
Bowl, and July 5 incidents. We disagree.
1. Standard of Review and Applicable Law
¶ 25 CRE 404(b)(1) prohibits the introduction of evidence to prove
that a person acted in conformity with a specific character trait on a
particular occasion. CRE 404(b)(2) does, however, allow the
introduction of such evidence for another purpose, such as “proving
motive, opportunity, intent, preparation, plan, knowledge, identity,
absence of mistake, or lack of accident.”
16 ¶ 26 The supreme court articulated a four-part test in People v.
Spoto, 795 P.2d 1314, 1318 (Colo. 1990), to determine the
admissibility of “other acts” evidence in a criminal action. The
supreme court later held in Boettcher & Co. v. Munson, 854 P.2d
199, 210 (Colo. 1993), that the Spoto analysis applies when
evaluating whether CRE 404(b) excludes “other acts” evidence in a
civil action. Such evidence is admissible only if (1) the evidence
relates to a material fact; (2) the evidence has logical relevance in
that the evidence adds to the probability that the material fact is
true; (3) the logical relevance of the evidence doesn’t depend on an
intermediate inference that the litigant has a bad character, which
would be employed to support a further inference that the litigant
acted in conformity with his bad character; and (4) the probative
value of the evidence is not substantially outweighed by the
evidence’s prejudicial impact. Id. (citing Spoto, 795 P.2d at 1318).
¶ 27 When reviewing a trial court’s evidentiary ruling on the
evidence’s probative value and prejudicial impact, “a trial court is
afforded considerable discretion in passing on the admissibility of
evidence, and its determination will not be disturbed on review
17 absent a showing of an abuse of discretion.” Hock v. N.Y. Life Ins.
Co., 876 P.2d 1242, 1251 (Colo. 1994).
2. Analysis
¶ 28 Wierimaa argues that Cheng’s testimony relating to the
Detroit, September 16, Super Bowl, and July 5 incidents fails the
Spoto test. Addressing the incidents in turn, we disagree.
a. The Detroit Incident
¶ 29 Cheng’s testimony concerning the Detroit incident was
properly admitted under Spoto. First, the testimony was offered for
a proper, noncharacter purpose — to highlight the couple’s troubled
relationship, which led to Cheng’s fear of physical harm during the
September 8 incident — rather than to establish that Wierimaa
acted in conformity with a violent disposition. Second, the
testimony was logically relevant because the incident informed
Cheng’s state of mind on September 8 and made her fear of
physical harm more probable. Her description of Wierimaa’s
agitation at the border, which resulted in his physical restraint and
detention while her children cried and others watched,
demonstrated a pattern of volatility. That pattern, in turn, provided
context for Cheng’s fear on September 8.
18 ¶ 30 Third, the logical relevance of the evidence was independent of
any impermissible character inference. The testimony concerned a
specific episode that scared Cheng and was not a generalized claim
that Wierimaa possessed a propensity for violence. Finally, the
probative value wasn’t substantially outweighed by the danger of
unfair prejudice. While the incident was dramatic, it informed why
Cheng may have feared Wierimaa during the September 8 incident.
Under these circumstances, we conclude that the trial court didn’t
err by admitting the evidence.
b. Other Incidents
¶ 31 Wierimaa’s challenge to Cheng’s testimony regarding the
Super Bowl, September 16, and July 5 incidents is unavailing.
Wierimaa doesn’t analyze each incident under the applicable
framework and instead asserts, in conclusory fashion, that, taken
together, they fail the Spoto requirements. Not only does Wierimaa
fail to include adequate citations to the record demonstrating where
the alleged errors took place, but each incident was offered for a
proper, noncharacter purpose — namely, to illuminate the nature of
the parties’ relationship and to provide context for the September 8
incident. In that respect, the evidence was logically relevant to a
19 material issue in the case. The testimony helped explain Cheng’s
perception of and reaction to Wierimaa’s conduct, including her
claimed fear, and tended to show a pattern of tense and volatile
interactions between the parties.
¶ 32 Further, the probative value of this testimony wasn’t
substantially outweighed by the danger of unfair prejudice. The
incidents demonstrated a pattern of tense or volatile behavior that
informed the jury’s understanding of the parties’ dynamics; they
didn’t invite a verdict based on an impermissible propensity
inference. Accordingly, the trial court didn’t abuse its discretion by
admitting Cheng’s testimony about these incidents.
C. The Trial Court Did Not Err by Admitting Child Hearsay
¶ 33 Wierimaa argues that the trial court erred by admitting
prejudicial child hearsay. We disagree.
¶ 34 Under the child hearsay statute, as relevant here, a child’s
out-of-court statements are admissible if, after a pretrial hearing,
(a) the court finds sufficient safeguards of reliability, and (b) the
child is unavailable as a witness and there is sufficient
corroborative evidence. § 13-25-129(5)(a)-(b), C.R.S. 2025. We
20 review the admission of child hearsay statements for an abuse of
discretion. People in Interest of G.E.S., 2016 COA 183, ¶ 47.
¶ 35 Wierimaa contends that the trial court abused its discretion by
(1) admitting Skattum’s testimony that S.W. and H.C. told her that
Wierimaa yelled at them every day; (2) allowing Cheng’s testimony
that the children wanted to go home to check on B.W.; and
(3) admitting Mauldin’s testimony that S.W. and H.C. were
concerned about B.W. being with Wierimaa because of his yelling.
We disagree with each contention.
¶ 36 First, the portion of Skattum’s testimony that Wierimaa
challenges on appeal was stricken from the record after Wierimaa’s
counsel objected.3 Once stricken, the testimony was no longer
before the jury for deliberative purposes. The same is true for the
portion of Cheng’s testimony stating that the children wanted to go
home to check on B.W. Wierimaa’s counsel immediately objected,
and Cheng’s counsel withdrew the question that elicited the
response. See People v. Jamison, 2018 COA 121, ¶ 37.
3 Regardless, Skattum’s challenged statements were also admitted
through the CPS report.
21 ¶ 37 Second, Mauldin’s testimony was limited to the information
contained in the prepared CPS report, which was previously
admitted as evidence. Because the testimony was cumulative of
evidence already properly before the jury, Mauldin’s testimony
didn’t introduce new or prejudicial information. Accordingly, the
trial court didn’t abuse its discretion by allowing testimony that
reiterated previously admitted evidence.
D. There Was Sufficient Evidence Supporting the Jury’s Finding That Wierimaa Assaulted Cheng
¶ 38 Wierimaa also contends that there was insufficient evidence to
support the jury’s finding that he assaulted Cheng. We disagree.
¶ 39 “When sufficiency of the evidence is challenged on appeal, we
must determine whether the evidence, viewed as a whole and in the
light most favorable to the prevailing party, is sufficient to support
the verdict.” Parr v. Triple L & J Corp., 107 P.3d 1104, 1106 (Colo.
App. 2004). We review the entire record to determine if there is
competent evidence to support the jury’s verdict. Vititoe v. Rocky
Mountain Pavement Maint., Inc., 2015 COA 82, ¶ 34.
22 ¶ 40 We “are bound by the jury’s findings where there is sufficient
competent evidence in the record to support the finding[] [and]
where the jury makes the finding on conflicting evidence.” Vigil v.
Pine, 490 P.2d 934, 936 (Colo. 1971); see Brewer v. Am. & Foreign
Ins. Co., 837 P.2d 236, 238 (Colo. App. 1992) (“Unless clearly
erroneous and unsupported by the record, the findings of the jury
must be accepted on review.”). “It is the jury’s sole province to
determine the weight of the evidence and the credibility of
witnesses, and to draw all reasonable inferences of fact therefrom.”
Morales v. Golston, 141 P.3d 901, 906 (Colo. App. 2005).
¶ 41 To prevail on her assault claim, Cheng had to prove by a
preponderance of the evidence that (1) Wierimaa acted either with
the intent of making physical contact with Cheng or putting her in
apprehension of such contact; (2) Cheng was placed in
apprehension of imminent contact by Wierimaa’s conduct; and
(3) such contact was or appeared to be harmful or offensive. Adams
v. Corr. Corp. of Am., 187 P.3d 1190, 1198 (Colo. App. 2008).
¶ 42 With respect to intent, the jury heard evidence from which it
reasonably could have found that Wierimaa intended to put Cheng
23 in apprehension of immediate physical contact or to cause offensive
or harmful contact. Intent is rarely susceptible of direct proof and
may be inferred from words, conduct, and the surrounding
circumstances. See Se. Colo. Water Conservancy Dist. v. Twin Lakes
Assocs., Inc., 770 P.2d 1231, 1237 (Colo. 1989). Cheng described
patterns of Wierimaa’s hostility, intimidation tactics, and physical
domination that occurred in private, in public, and in the presence
of the parties’ children. Cheng also described how, during the
September 8 incident, Wierimaa stood over her, glared, said, “[F]uck
you. Fuck off” in front of the children, and physically blocked her
from leaving the closet with B.W. When Cheng asked Wierimaa to
move, he yelled, “Give me my daughter. I’m going to call the cops
on you,” and forcibly grabbed B.W. from Cheng’s arms. The older
children ran down a nearby hallway and hid under a bed.
¶ 43 From Cheng’s testimony, the jury reasonably could have
inferred that Wierimaa intended to place Cheng in apprehension of
immediate physical contact or to subject her to offensive or harmful
contact. We don’t reassess witness credibility, reweigh evidence, or
substitute our judgment for that of the jury. See People in Interest
of A.J.L., 243 P.3d 244, 256 (Colo. 2010); Ovation Plumbing, Inc. v.
24 Furton, 33 P.3d 1221, 1225 (Colo. App. 2001) (A “jury’s verdict will
not be disturbed if there is any support for it in the record.”
(citation omitted)).
¶ 44 Next, Wierimaa argues that Cheng “never directly testified
about her apprehension during the incident.” We disagree. On
direct examination, Cheng was asked, “On September 8th, 2019,
did Wierimaa put you in a situation where you felt an apprehension
of fear for physical harm?” Cheng responded, “Yes.” Although
Wierimaa contends that the jury should have discounted Cheng’s
testimony because he never expressly threatened physical harm or
the use of force, that argument is unpersuasive because neither
threatening language nor actual contact are required to establish
assault. See Adams, 187 P.3d at 1198. Rather, Cheng’s testimony,
if believed, was sufficient to establish that she was apprehensive of
physical harm, and the absence of an explicit verbal threat doesn’t
render the evidence legally insufficient. Moreover, as discussed, it
isn’t our role to reweigh the evidence or substitute our judgment for
that of the jury. See Morales, 141 P.3d at 906. Viewing the
evidence in the light most favorable to the verdict, the jury
reasonably could have found that Cheng experienced apprehension
25 of physical harm under the circumstances presented. We therefore
decline to disturb that finding.
E. The Jury’s Damages Award Was Not Supported by the Evidence
¶ 45 Wierimaa argues that the jury’s damages award to Cheng was
not supported by the evidence. We agree.
1. Applicable Law and Standard of Review
¶ 46 Colorado allows recovery for noneconomic damages up to
$250,000, adjusted for inflation. § 13-21-102.5(3)(a)(I), C.R.S.
2025. In enacting limitations on damages for noneconomic loss or
injury, the legislature has defined a “[n]oneconomic loss or injury”
as a nonpecuniary harm where the person suffered direct or
primary loss or injury, including pain and suffering, inconvenience,
emotional stress, and impairment to their quality of life. § 13-21-
102.5(2)(b). This is a statute of general application, Scholz v. Metro.
Pathologists, P.C., 851 P.2d 901, 907 (Colo. 1993), which accounts
for damages for both real injuries and emotional distress, see
Averyt v. Wal-Mart Stores, Inc., 265 P.3d 456, 462-63 (Colo. 2011);
Goodson v. Am. Standard Ins. Co. of Wis., 89 P.3d 409, 417 (Colo.
2004). “Because damages for loss of enjoyment, annoyance,
26 discomfort, and inconvenience ‘by their very nature include a
mental or emotional component,’ limited testimony about a
plaintiff’s reactions or feelings may be used to describe these
noneconomic damages.” Hendricks v. Allied Waste Transp., Inc.,
2012 COA 88, ¶ 27 (quoting Webster v. Boone, 992 P.2d 1183, 1186
(Colo. App. 1999)).
¶ 47 One claiming damages, however, must submit “substantial
evidence, which together with reasonable inferences to be drawn
therefrom provides a reasonable basis for computation of the
damage.” Pomeranz v. McDonald’s Corp., 843 P.2d 1378, 1383
(Colo. 1993).
Substantial evidence is that which is probative, credible, and competent. It is evidence of a character that would warrant a reasonable belief in the existence of facts supporting a particular finding, without regard to the existence of contradicting testimony or contradictory inferences. Accordingly, if there is no competent evidence to support a damage award, it is clearly erroneous.
Palmer v. Diaz, 214 P.3d 546, 552 (Colo. App. 2009).
¶ 48 The amount of damages to award to the prevailing party in a
jury trial is within the sole province of the jury. Averyt, 265 P.3d at
462. On appeal, a jury’s damages award “will not be disturbed
27 unless it is completely unsupported by the record or if it is so
excessive as to indicate that the jury acted out of passion,
prejudice, or corruption.” Id. When a damages award is
challenged, the appellate court must view the record in the light
most favorable to the prevailing party and draw every inference in
favor of that party. Id. We will not disturb an award of damages
unless it is completely unsupported by the record. See Husband v.
Colo. Mountain Cellars, Inc., 867 P.2d 57, 60 (Colo. App. 1993) (“If
there is evidence to support a jury’s findings as to damages, those
findings may not be overturned . . . .”).
¶ 49 Wierimaa asserts that the jury’s award of $468,750 was
excessive because (1) it was likely that the jury applied exemplary
damages to Cheng’s assault counterclaim because the order of the
jury instructions and lack of clarity confused the jury;4
(2) testimony relating to evidence outside the September 8 incident
4 Wierimaa sought exemplary damages; Cheng didn’t. But the exemplary damages instruction didn’t clarify that it applied only to Wierimaa’s claims. Because this instruction immediately preceded the instruction on apprehension relating to Cheng’s claims, Wierimaa claims the jury was likely confused.
28 created unfair bias, prejudice, and passion against him; (3) Cheng
didn’t suffer a physical or emotional injury in connection with the
September 8 incident; and (4) the record doesn’t support the jury’s
award.
¶ 50 First, as we have noted supra Part II.A.3., Wierimaa’s counsel
didn’t object to the court’s jury instructions. Because any claim of
instructional error is unpreserved, we decline to review Wierimaa’s
argument on that basis. Second, to the extent Wierimaa claims
that evidence admitted outside the September 8 incident created
unfair juror bias, prejudice, or passion against him, either those
claims were unpreserved, as we have noted supra Part II.A.1., or the
evidence was properly admitted, as we discussed supra Part II.B.2.
Moreover, Wierimaa’s claims of juror bias, prejudice, and passion
are speculative and underdeveloped. See People v. Thompson, 2017
COA 56, ¶ 199 (declining to address a contention on appeal when
the premise is “entirely speculative”); Antolovich v. Brown Grp.
Retail, Inc., 183 P.3d 582, 604 (Colo. App. 2007) (“We will not
address . . . underdeveloped arguments.”).
¶ 51 Third, we aren’t persuaded by Wierimaa’s argument that
Cheng didn’t suffer an emotional injury. The jury was instructed
29 that, in determining actual damages, it could consider
“noneconomic losses or injuries . . . [Cheng] has had to the present
time or . . . will probably have in the future, including: physical and
mental pain and suffering, inconvenience, emotional stress, fear,
anxiety, embarrassment, humiliation, or impairment of the quality
of life.” The jury heard testimony from Cheng describing years of
emotional abuse and her turbulent relationship with Wierimaa,
which informed her state of mind on September 8. Cheng also
directly testified that she was fearful on September 8, and the jury
could have inferred that she felt anxious and stressed.
¶ 52 However, we do agree with Wierimaa’s assertion that the jury’s
damages award isn’t supported by the record. In cases where the
appellate court affirmed a jury’s award of noneconomic damages,
the plaintiff had presented testimony of pain, suffering, mental
anguish, or a reduced quality of life. See, e.g., Averyt, 265 P.3d at
462-63 (the plaintiff provided ample testimony she suffered from
chronic pain that induced personality changes, depression,
difficulty sleeping, and difficulty concentrating after her injury);
Schuessler v. Volter, 2012 COA 86, ¶ 56 (the plaintiff testified to his
emotional distress and anger at not receiving benefits, the impact of
30 working in pain when he needed time to recover, and the financial
pressure and anxiety from not having money to cover his costs);
Colwell v. Mentzer Invs., Inc., 973 P.2d 631, 639 (Colo. App. 1998)
(the plaintiff’s experts testified that while the plaintiff could
continue to work as a teacher, eventually, the quantity and quality
of her teaching would likely be reduced, and there was a high
likelihood that the plaintiff would end up in a wheelchair, given her
worsening symptoms).
¶ 53 Here, the sole reference in the record to noneconomic damages
appears in a single page of Cheng’s testimony, in which she alluded
generally to fear of physical harm. Although Cheng testified that
she felt fear during the September 8 incident, she never developed
that testimony or indicated that, at the time of the incident or
thereafter, she experienced physical or mental pain, emotional
distress (apart from the immediate fear), anguish, inconvenience, or
humiliation, or that the incident impaired her quality of life.
Likewise, neither Cheng nor her witnesses testified that the
September 8 incident left her unable to work, that she suffered
economic loss, or that she experienced other symptoms associated
with an award of noneconomic damages. Simply put, Cheng failed
31 to submit substantial evidence supporting the jury’s award of
almost half-a-million dollars. Further, Cheng’s counsel didn’t
articulate a measurable amount of harm or even request damages
during closing argument.
¶ 54 Thus, the jury’s award for damages was excessive and
unsupported by the record. Accordingly, we reverse that award.
When an appellate court determines that the verdict was only
excessive and not the result of bias or prejudice, “the court may
order a remittitur and alternatively authorize a new trial on
damages alone if the plaintiff refuses to accept the remittitur.”
Higgs v. Dist. Ct., 713 P.2d 840, 861 (Colo. 1985); see also Bassett
v. O’Dell, 498 P.2d 1134, 1135 (Colo. 1972) (“Numerous cases have
considered and approved the practice of granting partial retrials on
the issue of damages alone where liability was clearly established.”).
¶ 55 Accordingly, on remand, the trial court is directed to offer
Cheng the option of remittitur, and, if she doesn’t accept, to order a
new trial on the amount of noneconomic damages for the assault
claim. See Jagow v. E-470 Pub. Highway Auth., 49 P.3d 1151, 1161
(Colo. 2002) (affirming the court of appeals’ judgment directing the
trial court to offer the plaintiff the option of remittitur, and if
32 remittitur was not accepted, to hold a new trial on damages to the
remaining property).
F. Appellate Attorney Fees
¶ 56 We deny Wierimaa’s request for attorney fees on appeal and
his request to determine appellate fees through a contempt hearing
on remand because he has prevailed on appeal only as to the
damages award; Cheng has prevailed on all other issues. See
C.A.R. 39.1.
III. Disposition
¶ 57 We affirm the portion of the judgment that found in Cheng’s
favor on all of Wierimaa’s claims and on her assault counterclaim.
We reverse the jury’s award of damages on Cheng’s assault
counterclaim and remand the case to the trial court for remittitur,
or, if Cheng objects, a new trial on damages.
JUDGE J. JONES and JUDGE LUM concur.