People v. Denhartog

• Decision Date: 21 February 2019
• Docket Number: Court of Appeals No. 16CA0737
• Citation: 452 P.3d 148
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Robert Leonard DENHARTOG, Defendant-Appellant.
• Court: Colorado Court of Appeals

452 P.3d 148

The PEOPLE of the State of Colorado, Plaintiff-Appellee,

v.Robert Leonard DENHARTOG, Defendant-Appellant.

Court of Appeals No. 16CA0737

Colorado Court of Appeals, Division IV.

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

Opinion by JUDGE HARRIS

¶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.

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 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.

A. Standard of Review

¶11 We review sufficiency of the evidence claims de novo. People v. Perez , 2016 CO 12, ¶ 8, 367 P.3d 695. 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, 351 P.3d 553.

¶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, 444 P.3d 766 (declining to review for plain error), with People v. Lacallo , 2014 COA 78, ¶¶ 6, 20, 338 P.3d 442 (applying plain error standard of review to the defendant’s 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, 357 P.3d 201 (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.

¶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, 411 P.3d 740 (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 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, 347 P.3d 621, 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...