People v. Hines
| Decision Date | 16 October 1989 |
| Docket Number | No. 88SA169,88SA169 |
| Citation | 780 P.2d 556 |
| Parties | The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Donald Edward HINES, Defendant-Appellee. |
| Court | Colorado Supreme Court |
James F. Smith, Dist. Atty., Michael J. Milne, Sr. Deputy Dist. Atty., and John R. Parsons, Deputy Dist. Atty., Brighton, for plaintiff-appellant.
No appearance for defendant-appellee.
The People appeal from a judgment of acquittal entered by the district court at the conclusion of the prosecution's case on the charge of felony menacing. 1 The district court concluded that the prosecution's evidence demonstrating that the defendant made a contingent or a conditional threat while holding a weapon at his side was insufficient to establish a prima facie case of felony menacing because the threat itself was conditional and the weapon was not pointed at the victim. We disagree with the ruling of the district court.
The defendant, Donald E. Hines, was charged with the crime of felony menacing by knowingly placing or attempting to place James O'Neill in fear of imminent serious bodily injury by threat or physical action and by the use of a deadly weapon, a handgun. The prosecution's evidence established that the incident giving rise to the charge occurred at approximately 10:30 a.m. on September 15, 1987, at the intersection of 65th Place and Federal Boulevard in Adams County, while O'Neill and his brother-in-law, Charles Grammer, were traveling in a pickup truck to return some plywood to a store.
Grammer was driving his pickup truck in a westerly direction on 65th Place, and O'Neill was riding as a passenger, when suddenly an automobile operated by the defendant backed out of a driveway on 65th Place in front of the pickup truck. Grammer swerved to avoid a collision and, sticking his head out of the window, called the defendant a "dumb son of a bitch." When Grammer stopped at a nearby intersection at 65th Place and Federal Boulevard, the defendant drove up to the intersection, stepped out of his automobile, and approached the pickup truck. Grammer got out of the pickup truck, and a shouting match ensued in which the defendant threatened to beat Grammer up. When O'Neill at that point exited the pickup truck, the defendant said, "Oh there [are] two of you," and ran to the side of his automobile.
O'Neill, who had a clear view of the inside of the defendant's automobile, saw the defendant reach in through the passenger window and pull out a short barrelled revolver from underneath the seat. The defendant, according to O'Neill, then placed the gun on the side of his right hip below his belt and held the gun in that position with his right hand while he was walking between his own automobile and the pickup truck. With his left hand, the defendant pointed at O'Neill and stated: "You make one move[,] you big ugly motherfucker[,] and I will put a hole in you." O'Neill, in fear that the defendant was going to shoot him, said, "Let's calm down," and shouted for anyone who might hear him to call the police. The defendant then went back to his automobile, and Grammer and O'Neill drove away in the pickup truck. The defendant followed them a short distance in his vehicle, and O'Neill was able to observe the defendant's license number. O'Neill reported the incident to the police, and the defendant was arrested shortly thereafter at his home. 2
At the conclusion of the prosecution's case, the defendant moved for a judgment of acquittal on the basis that the prosecution's evidence was insufficient to establish a prima facie case of felony menacing. The district court granted the motion for two reasons: (1) the defendant's verbal threat to O'Neill was conditional, in that it was contingent upon O'Neill making a move against the defendant, and such conditional threat was insufficient to place O'Neill in fear of imminent serious bodily injury; and (2) the crime of felony menacing requires the use, and not merely the possession, of a deadly weapon, and the prosecution's evidence failed to establish the defendant's actual use of the weapon against O'Neill. The people thereafter filed this appeal, contending that the district court misapprehended the appropriate legal standards in granting the defendant's motion for a judgment of acquittal. We agree with the People's contention.
Section 18-3-206, 8B C.R.S. (1986), provides as follows:
A person commits the crime of menacing if, by any threat or physical action, he knowingly places or attempts to place another person in fear of imminent serious bodily injury. Menacing is a class 3 misdemeanor, but, if committed by the use of a deadly weapon, it is a class 5 felony.
The essential elements of the crime of felony menacing, therefore, consist of making a threat or taking some physical action, and doing so by the use of a deadly weapon, and thereby knowingly placing or attempting to place another person in fear of imminent serious bodily injury. See People v. Crump, 769 P.2d 496 (Colo.1989); see C.J.I. Crim. 10:16 (1983). A deadly weapon includes a firearm, whether loaded or unloaded. § 18-1-901(3)(e)(I), 8B C.R.S. (1986). Serious bodily injury means bodily injury which involves a substantial risk of death, of serious permanent disfigurement or of loss or impairment of the function of any part or organ of the body. § 18-1-901(3)(p), 8B C.R.S. (1986).
In contrast to the district court's interpretation of section 18-3-206, we do not consider a conditional or contingent threat insufficient as a matter of law to satisfy the "threat" essential...
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Harris v. State
...331, 1 Cal.Rptr.2d 875, 877 (1991) (" '[U]se' means more than possession of a weapon or the bare potential for use...."); People v. Hines, 780 P.2d 556, 559 (Colo.1989) ("Use" is broad enough to include act of holding weapon in presence of another in manner that causes other person to fear ......
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Hadley v. State
...property, or rights of another, by commission of an unlawful act. See Schott v. People, 174 Colo. 15, 482 P.2d 101 (1971); People v. Hines, 780 P.2d 556 (1989); State v. Cushing, 17 Wash. 544, 50 P. 512 (1897). A threat can include almost any kind of an expression of intent by one person to......
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People v. Hickman
...purpose or intent to cause injury or harm to the person, property, or rights of another, by the commission of an unlawful act." 780 P.2d 556, 559 (Colo.1989). In Schott v. People, we defined "threat" in the context of a theft by threat statute as a "declaration of purpose or intention to wo......
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Whimbush v. People, 92SC604
...to highlight the fact that robbery required only force or intimidation whereas a threat required a declaration. Id. In People v. Hines, 780 P.2d 556, 559 (Colo.1989), we cited Schott to define "threat" in the context of the felony menacing statute. Again, the definition was phrased in terms......
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ARTICLE 3 OFFENSES AGAINST THE PERSON
...in a manner that causes the other person to fear for his safety, even if the weapon is not pointed at the other person. People v. Hines, 780 P.2d 556 (Colo. 1989); People v. District Ct., 17th Jud. Dist., 926 P.2d 567 (Colo. 1996). Felony menacing requires use of deadly weapon. The elements......
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ARTICLE 3
...in a manner that causes the other person to fear for his safety, even if the weapon is not pointed at the other person. People v. Hines, 780 P.2d 556 (Colo. 1989); People v. District Ct., 17th Jud. Dist., 926 P.2d 567 (Colo. 1996). Felony menacing requires use of deadly weapon. The elements......