People v. McPherson

• Decision Date: 25 August 1980
• Docket Number: No. 79SC275,79SC275
• Citation: 619 P.2d 38,200 Colo. 429
• Parties: The PEOPLE of the State of Colorado, Petitioner, v. Martin J. McPHERSON, Respondent.
• Court: Colorado Supreme Court

Page 38

619 P.2d 38

200 Colo. 429

The PEOPLE of the State of Colorado, Petitioner, v. Martin J. McPHERSON, Respondent.

No. 79SC275.

Supreme Court of Colorado.

Aug. 25, 1980.

Rehearing Denied Sept. 22, 1980.

J. D. MacFarlane, Atty. Gen., Richard F. Hennessey, Deputy Atty. Gen., Mary J. Mullarkey, Sol. Gen., William Morris, Asst. Atty. Gen., Denver, for petitioner.

J. Gregory Walta, Colorado State Public Defender, Denver, Richard D. Irvin, Deputy State Public Defender, Boulder, for respondent.

DUBOFSKY, Justice:

We granted certiorari in People v. McPherson, Colo.App., 601 P.2d 355 (1979), to consider the Court of Appeals' decision that the defendant, Martin J. McPherson, could not be convicted of felony menacing because he used an unloaded firearm. We reverse.

About 12:30 a. m. on April 19, 1977, the defendant entered the lobby of the University of Colorado dormitory, Stearns West, in the Williams Village Complex, and confronted the night clerk, an 18-year-old woman student, with a rifle. He first asked her how to get to the roof, and when she did not respond, he ordered her at gunpoint to the elevantor. Just then the elevator door opened, and the defendant ordered the two people in the elevator, along with the night clerk, to go outside with him. One of the people in the elevator started to run, and the defendant raised his rifle and yelled 'Stop.'

The night clerk testified that she was afraid the defendant would shoot her. The defendant, apparently realizing how frightened the people he was holding were, backed away from them, apologizing, 'I'm sorry I scared you. I was looking for someone else.' As he left he warned, 'I have a high-powered rifle here, and if anyone touches that phone, I'll blow a hole right through you.'

Another student arrived at the dormitory in time to identify the defendant's car. Within a short time, the police found the defendant as he left his car in a nearby apartment complex parking lot. He was carrying a rifle in a case and a full box of shells.

At trial, the defendant testified that he spent most of the evening drinking at a bar in a shopping center across the street from the dormitory. Near midnight, he bumped into a man on a narrow stairway, and they exchanged hostile words. The defendant claimed the man threatened to kill him. As the defendant left the bar, he saw his antagonist walk toward Stearns West. The defendant went home and took the rifle and a box of shells from his parents' bedroom. He returned to the dormitory area, intending to confront the man and tell him that he should not threaten people.

The defendant testified that the rifle was unloaded, but he did not tell the people he encountered in the lobby that it was unloaded. He denied verbally threatening anyone and left when he realized he had scared the people he was menacing. There was no evidence that the defendant attempted to use the rifle as a bludgeon or that anyone feared he would do so.

The trial court denied the defendant's motion for judgment of acquittal. The motion was based on the premise that an unloaded firearm cannot be a deadly weapon sufficient to sustain a conviction for felony menacing. In the alternative, the defendant requested the court to instruct the jury on misdemeanor menacing, a lesser included offense of felony menacing, or reckless endangerment. The court denied the requested instructions. During deliberations, the jury asked whether an unloaded weapon constitutes a 'deadly weapon.' The judge replied that the jury had already been instructed on the law. The jury convicted the defendant of felony menacing, and the court sentenced him to two years' probation.

The Court of Appeals reversed the defendant's conviction, holding that an unloaded rifle is not a deadly weapon, ¹ and remanded the case for the jury to determine if the rifle was loaded. If the evidence conflicted on whether the rifle was loaded, the trial court was directed to instruct the jury on the lesser included offense of misdemeanor menacing.

The question before us is whether the Court of Appeals erred in holding as a matter of law that an unloaded firearm is not a deadly weapon. We conclude as a matter of law that under the felony menacing statute an unloaded firearm is a deadly weapon. Therefore, we reverse the Court of Appeals' decision and uphold the defendant's conviction.

We base our decision on the statutory definition of a deadly weapon and the purpose of the felony menacing statute. The felony menacing statute provides:

'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.' Section 18-3-206, C.R.S.1973 (now in 1978 Repl. Vol. 8).

A 'deadly weapon' is defined in section 18-1-901(3)(e), C.R.S.1973 (1978 Repl. Vol. 8) as:

'. . . any firearm, ² knife, bludgeon, or other weapon, device, instrument, material, or substance, whether animate or inanimate, which in the manner it is used or intended to be used is capable of producing death or serious bodily injury.' ³

The Court of Appeals assumed that the clause 'which in the manner it is used or intended to be used is capable of producing death or serious bodily injury' in the definition of deadly weapon applies to each type of weapon listed. To the contrary, the phrase 'which in the manner it is used . . .' modifies only the last antecedent, 'other weapon, device, instrument, material, or substance, whether animate or inanimate.' 'Other weapon' is preceded by an 'or', and the general rule of statutory construction is that relative and qualifying words and phrases, where no contrary intention appears, are construed to refer solely to the last antecedent with which they are closely connected. Moschetti v. Liquor Licensing Authority of the City of Boulder, 176 Colo. 281, 490 P.2d 299 (1971); Wheeler v. Rudolph, 162 Colo. 410, 426 P.2d 762 (1967).

Our reading of the statute is consistent with its purpose. The specific intent of the defendant to cause fear is the gravamen of the offense of felony menacing. People v. Stout, 193 Colo. 466, 568 P.2d 52 (1977). The felony menacing statute enhances the punishment if the defendant uses a deadly weapon because a deadly weapon will cause a greater degree of fear in the person menaced. The victim does not know whether the firearm is unloaded, and the victim's apprehension and consequent reactions will be the same as if the firearm were loaded. The victim may attempt to escape, as did one of the persons menaced in the case before us, or to defend himself by the use of violence.

The Court of Appeals thought menacing a more serious crime when a deadly weapon is used because of the increased risk of death or serious bodily injury. The Court of Appeals concluded that the increased risk is not present when the firearm is unloaded, and therefore, the more severe penalty should not apply. The Court of Appeals relied on cases finding that except where used as a bludgeon an unloaded firearm is not a deadly weapon for felony menacing where present ability to commit violent injury is required before a weapon can be considered deadly. Hobbs v. State, 363 P.2d 357 (Alaska, 1961); People v. Wood, 10 App.Div.2d 231, 199 N.Y.S.2d 342 (1960). See also United States v. Garcia, 555 F.2d 708 (9th Cir. 1977); People v. Orr, 43 Cal.App.3d 666, 117 Cal.Rptr. 738 (1974); Else v. State, 555 P.2d 1210 (Alaska, 1976); Loretta v. Sheriff, 93 Nev. 344, 565 P.2d 1008 (1977).

The Colorado General Assembly changed the statutory definition of assault from present ability to inflict injury to apparent ability to inflict injury when assault and battery were merged into the present assault statutes. ⁴ Jurisdictions with statutes which require only apparent...