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                                                       ADVANCE SHEET HEADNOTE
                                                                September 11, 2017

                                      2017 CO 87

No. 15SC596, People v. Naranjo—Criminal Law—Lesser Non-Included Offenses—
Jury Instructions.

      The supreme court reviews the court of appeals opinion reversing the

defendant’s convictions for felony menacing on grounds that the defendant was entitled

to a jury instruction on the lesser non-included offense of disorderly conduct with a

deadly weapon. Under the supreme court’s case law, a defendant is entitled to a jury

instruction on a lesser non-included offense where there exists a rational basis in the

evidence to simultaneously acquit the defendant of the greater charged offense and

convict the defendant of the lesser offense. Considering the evidence presented at trial,

the supreme court concludes that there was no rational basis for the jury to

simultaneously acquit the defendant of felony menacing and convict him of disorderly

conduct. The supreme court therefore reverses the judgment of the court of appeals.
                     The Supreme Court of the State of Colorado
                       2 East 14th Avenue • Denver, Colorado 80203

                                      2017 CO 87

                         Supreme Court Case No. 15SC596
                       Certiorari to the Colorado Court of Appeals
                        Court of Appeals Case No. 13CA1063

                                       Petitioner:
                          The People of the State of Colorado,
                                           v.
                                      Respondent:
                                Gilbert Arturo Naranjo.

                                 Judgment Reversed
                                        en banc
                                   September 11, 2017


Attorneys for Petitioner:
Cynthia H. Coffman, Attorney General
John T. Lee, Assistant Attorney General
 Denver, Colorado

Attorneys for Respondent:
Douglas K. Wilson, Public Defender
Joseph P. Hough, Deputy Public Defender
 Denver, Colorado




JUSTICE MÁRQUEZ delivered the Opinion of the Court.
¶1       The People charged Gilbert Naranjo with two counts of felony menacing for

pointing a handgun from his vehicle toward the two occupants of another vehicle

during a road-rage incident. Naranjo admitted at trial that he handled the gun during

the incident but testified that he merely moved the weapon from the front passenger

seat to the glove compartment to prevent it from sliding onto the floor and accidentally

discharging. At the close of evidence, Naranjo tendered a jury instruction for the lesser

non-included offense of disorderly conduct, which, in relevant part, prohibits the

intentional, knowing, or reckless display of a deadly weapon in a public place “in a

manner calculated to alarm.” The trial court refused this instruction, and the jury

convicted Naranjo of both counts of felony menacing. On appeal, the court of appeals

concluded that Naranjo was entitled to the instruction, and it therefore reversed the

judgment of conviction and remanded the case for a new trial.

¶2       We granted the People’s petition for a writ of certiorari to review the court of

appeals’ conclusion that Naranjo was entitled to an instruction on the lesser non-

included offense of disorderly conduct.1 Under this court’s case law, a defendant is

entitled to a jury instruction on a lesser non-included offense where there exists a

rational basis in the evidence to simultaneously acquit the defendant of the greater

charged offense and convict the defendant of the lesser offense. Montoya v. People,



1   We granted certiorari review of the following issue:
         Whether the court of appeals erred in reversing the defendant’s menacing
         convictions because he did not receive an instruction on the lesser non-
         included offense of disorderly conduct.


                                              2
2017 CO 40, ¶ 32, 394 P.3d 676, 688. Considering the evidence presented at trial in this

case—namely, the testimony of Naranjo and the two victims—we conclude that there

was no rational basis for the jury to simultaneously acquit Naranjo of felony menacing

and convict him of disorderly conduct. Accordingly, we reverse the judgment of the

court of appeals.

                          I. Facts and Procedural History

¶3    The People charged Gilbert Naranjo with two counts of felony menacing in

violation of section 18-3-206, C.R.S. (2017). These charges stemmed from a road-rage

incident in 2011 near Pueblo, Colorado, during which Naranjo and another driver, Jose

Herrera, got into an altercation while merging onto a highway. Herrera was driving

with his sixteen-year-old daughter in a pickup truck, and Naranjo was driving a smaller

car. The prosecution alleged that as the two vehicles were traveling down the highway,

Naranjo pointed a handgun from his open window up at Herrera and his daughter and

told the two, “You don’t want to fuck with me.”

¶4    At trial, Herrera, his daughter, and Naranjo testified about the incident. All three

acknowledged that there had been an altercation on the highway, but the victims’

account differed from Naranjo’s.

¶5    Herrera testified that he was accelerating through a green light onto a highway

on-ramp when Naranjo passed him and cut him off. Herrera braked to slow down and

threw his hands in the air. As the two vehicles entered the highway and continued

down the highway, Herrera tried to pass Naranjo, but Naranjo repeatedly sped up, cut

in front of Herrera, and slowed down to force Herrera to brake. After continuing down

                                           3
the highway some distance, the two vehicles eventually slowed to below highway

speed and Herrera pulled even with Naranjo’s car, with the passenger side of Herrera’s

truck next to the driver side of Naranjo’s car. Herrera rolled down the passenger-side

window of his truck, Naranjo rolled down his driver-side window, and Herrera heard

Naranjo say, “You don’t want to fuck with me.” At the same time, Naranjo raised a

black handgun with his right hand to about chest-height and pointed it at Herrera’s

daughter in the passenger seat.

¶6    When Naranjo exited the highway, Herrera followed him and called 911 to

report the incident and Naranjo’s location. Herrera continued to follow Naranjo until

police arrived and stopped Naranjo.

¶7    Herrera’s daughter similarly testified that Naranjo cut in front of the truck as

they were entering the highway on-ramp, and that Herrera threw his hands into the air.

On the highway, Naranjo cut in front of the truck and slowed down to prevent Herrera

from passing in either the left or right lane. Herrera’s truck ultimately pulled into the

left lane, alongside Naranjo’s car. Herrera rolled down the truck’s window, and the

daughter observed Naranjo raise a handgun to his open driver-side window, look up at

their truck, and say, “You don’t want to fuck with me.” Herrera then braked hard,

called 911, and continued to follow Naranjo until police arrived.

¶8    In contrast, Naranjo testified that shortly before he encountered Herrera’s truck,

he heard a clanking sound coming from under the passenger seat of his car.             He

realized that the clanking sound was his handgun sliding on the floorboard as he made

a turn. He had mistakenly left the gun in his car after going shooting at a reservoir with

                                            4
his wife and a friend the day before. Naranjo had not unloaded the gun and was

worried about it accidentally discharging, so he picked it up and put it on the passenger

seat.

¶9      Naranjo testified that he passed Herrera while accelerating onto the highway on-

ramp, but he did not think that he had cut Herrera off. According to Naranjo, Herrera

then began to tailgate him as he accelerated to the highway speed limit and continued

down the highway. Naranjo testified that he pressed the brakes to slow down, hoping

that Herrera would pass him. However, as he did so, the gun slid forward on the

passenger seat.     To keep the gun from falling onto the floor and accidentally

discharging, Naranjo reached over, picked up the gun, and put it in the glove

compartment. Naranjo expressly denied brandishing the gun, pointing it at anyone, or

making any threats; he instead testified that the gun was pointed away from him on the

seat and that he moved it to the glove compartment in that same position.

¶10     Naranjo further testified that as he put the gun in the glove box, Herrera pulled

alongside him and appeared to be trying to tell him something. Naranjo rolled down

his window and heard Herrera telling him to pull over. Naranjo did not want to pull

over on the highway, so he rolled his window up and exited the highway. Naranjo

testified he was shaken by the incident and felt threatened, so he decided to drive to his

brother-in-law’s tattoo shop to relax and “kind of vent” about what had happened.

While he was driving to the shop, Naranjo noticed that Herrera was following him, and

two police cars stopped Naranjo shortly thereafter.



                                            5
¶11   At trial, the jury was instructed on the charged offense of felony menacing under

section 18-3-206(1)(a). The menacing instruction provided that the jury should convict

Naranjo of felony menacing if it concluded:

      1. That [Naranjo,]
      2. in the State of Colorado, at or about the date and place charged,
      3. by any threat or physical action,
      4. knowingly placed or attempted to place another person in fear of
         imminent serious bodily injury[,]
      5. by the use of a deadly weapon or any article used or fashioned in a
         manner to cause a person to reasonably believe that the article was a
         deadly weapon.

Naranjo also tendered an instruction on the lesser non-included offense of disorderly

conduct with a deadly weapon under section 18-9-106(1)(f), C.R.S. (2017). The proposed

instruction directed the jury to convict Naranjo of disorderly conduct if it concluded:

      1. That [Naranjo,]
      2. in the State of Colorado, at or about the date and place charged,
      3. Intentionally, knowingly, or recklessly
              a. not being a peace officer
              b. displayed a deadly weapon
              c. or represented verbally or otherwise that he or she was armed
                 with a deadly weapon
              d. in a public place
              e. in a manner calculated to alarm[.]

Although the tendered instruction referred to intentional, knowing, or reckless conduct,

defense counsel argued that Naranjo was entitled to the instruction because he acted

recklessly in handling a weapon while driving down the highway. Specifically, in

handling the weapon, he potentially exposed it to the view of passing motorists, and

thus consciously disregarded a risk that other passing motorists would be alarmed. The

prosecution responded that the instruction was unwarranted because there was no


                                              6
rational basis for acquitting Naranjo of felony menacing while simultaneously

convicting him of disorderly conduct given that Naranjo’s testimony suggested, at

most, only negligent conduct. The trial court ultimately refused the instruction. It

reasoned that even accepting Naranjo’s testimony as true, there was no basis to convict

Naranjo of disorderly conduct because his testimony that he simply reached over and

moved the gun from the front passenger seat into the glove compartment described

neither reckless conduct nor the display of a weapon in a public place.

¶12   Naranjo then tendered an instruction for the lesser non-included offense of

harassment under section 18-9-111(h), C.R.S. (2017), which the trial court accepted. The

jury found Naranjo guilty on both counts of felony menacing but acquitted him of

harassment.

¶13   On appeal, the court of appeals reversed Naranjo’s felony menacing convictions

and remanded for a new trial, concluding that Naranjo was entitled to the jury

instruction on the lesser non-included offense of disorderly conduct. People v. Naranjo,

2015 COA 56, ___ P.3d ___. The court of appeals disagreed with the trial court’s

conclusion that Naranjo’s testimony did not describe the display of a weapon in a

“public place,” reasoning that the Criminal Code definition of this term includes

“highways.” Id. at ¶¶ 14–18 (citing § 18-1-901(3)(n), C.R.S. (2017)). The court further

concluded that Naranjo’s admission that he handled a gun while driving on a public

highway established a rational evidentiary basis for the instruction because a jury could

conclude that in doing so, Naranjo consciously disregarded a substantial and

unjustifiable risk that the gun would be “displayed” to someone outside the car in a

                                            7
manner that would alarm a reasonable person. Id. at ¶ 26. Finally, the court of appeals

concluded that the error was not harmless. Id. at ¶¶ 28–32. The court observed that the

lesser non-included offense of harassment (which has no deadly weapon element) bore

little resemblance to the requested instruction on disorderly conduct with a deadly

weapon or to the charged offense of felony menacing. Id. at ¶ 30. Thus, the court

reasoned, the jury’s acquittal on the lesser offense of harassment did not alleviate the

concern that the jury convicted Naranjo of the greater charged offense because it had no

other option. Id. Accordingly, the court of appeals reversed Naranjo’s judgment of

conviction and remanded the case for a new trial. Id. at ¶ 33.

¶14   We granted the People’s petition for a writ of certiorari to review the court of

appeals’ ruling.

                                     II. Analysis

                         A. Lesser Non-Included Offenses

¶15   In Colorado, a criminal defendant is entitled to have the jury presented with the

option to convict him of a lesser non-included offense, so long as a rational evidentiary

basis exists to simultaneously acquit him of the charged offense and convict him of the

lesser offense. Montoya v. People, 2017 CO 40, ¶ 32, 394 P.3d 676, 688; People v.

Aragon, 653 P.2d 715, 720 n.5 (Colo. 1982). Unlike lesser included offenses, which are

now governed by statute, see § 18-1-408(5)–(6), C.R.S. (2017), Colorado’s approach to

lesser non-included offenses remains entirely judicially created, People v. Rubio, 222

P.3d 355, 360 (Colo. App. 2009). Although we have continued to permit a defendant to

request an instruction on a lesser non-included offense, we have acknowledged that the

                                            8
practice is not required by the federal constitution, and in fact has been criticized by the

U.S. Supreme Court. Montoya, ¶ 32, 394 P.3d at 688 (citing Hopkins v. Reeves, 524 U.S.

88, 99 (1998)); see also Reyna-Abarca v. People, 2017 CO 15, ¶ 93, 390 P.3d 816, 830

(Coats, J., dissenting) (observing that Colorado’s practice of permitting a defendant to

request an instruction on a lesser non-included offense “clearly represents a minority

position”).

¶16    Colorado’s approach to lesser non-included instructions originated in People v.

Rivera, 525 P.2d 431 (Colo. 1974).       There, we held that the “statutory test” for

determining whether a lesser offense is necessarily included in the charged offense did

not bar a defendant from requesting an instruction on a lesser non-included offense

where such an instruction is supported by the evidence. Id. at 434. In reaching this

conclusion, we reasoned that a defendant is entitled to an instruction on the defense

theory of the case as revealed by the evidence, and thus, a theory-of-the-case instruction

that permits the jury to find a defendant innocent of the charged offense and guilty of a

lesser charge should be given when warranted by the evidence. Id. We posited that

such an approach promotes better trials and fairer verdicts, and helps ensure that a jury

does not convict a defendant of a greater offense than the one actually committed

merely because the greater offense is the only crime charged and the jury is persuaded




                                             9
that some crime was committed. See id.; see also Montoya, ¶ 32, 394 P.3d at 688; People

v. Trujillo, 83 P.3d 642, 645 (Colo. 2004).2

¶17    Although we have never formally defined what constitutes a lesser non-included

offense, logically it is a lesser offense that requires proof of at least one element not

contained in the charged offense. Accordingly, we have held that a defendant’s request

for an instruction on a lesser non-included offense is tantamount to adding a charge

against the defendant with his consent. Rivera, 525 P.2d at 434; accord People v. Rock,

2017 CO 84, ¶ 8, ___ P.3d ___; Montoya, ¶ 32, 394 P.3d at 688. Further, if a jury convicts

the defendant of both the charged offense and the lesser non-included offense, double

jeopardy principles may not prohibit the defendant from being punished for both

offenses. See Montoya, ¶ 42, 394 P.3d at 691; see also Arko v. People, 183 P.3d 555, 562

(Colo. 2008) (Coats, J., dissenting) (noting that a jury’s consideration of a lesser non-

included offense can subject the defendant to an additional conviction and ultimately

harsher punishment). For these reasons, we have stated that the submission of an

instruction on a lesser non-included offense “could be permissible only as a tactical and

strategic choice made by defense counsel.” Montoya, ¶ 32, 394 P.3d at 688.




2 In their merits briefing to this court, the People argued for the first time that we should
overrule our decision in Rivera to the extent that it allows a defendant to request an
instruction on a lesser non-included offense over the prosecution’s objection. The
People did not raise this issue in their petition seeking certiorari review of the court of
appeals’ decision in this case. Because we need not address issues not raised in the
petition for certiorari review, and because we can resolve this case on the narrower
question actually presented in the People’s petition, we decline to revisit Rivera here.


                                               10
¶18    Although an ordinary theory-of-the-case instruction must be given if the record

contains “any evidence” to support the theory, see People v. Nunez, 841 P.2d 261, 264

(Colo. 1992), we have made clear that a defendant seeking an instruction on a lesser

non-included offense faces a higher burden: just as with lesser included offenses, the

jury should be instructed on a lesser non-included offense only where there exists a

rational evidentiary basis for the jury to simultaneously acquit the defendant of the

greater charged offense and convict the defendant of the lesser offense. Brown v.

People, 239 P.3d 764, 769 (Colo. 2010) (lesser included offense); Montoya, ¶ 32, 394 P.3d

at 688 (citing Rivera, 525 P.2d at 434) (lesser non-included offense); see also § 18-1-408(6)

(“The court shall not be obligated to charge the jury with respect to an included offense

unless there is a rational basis for a verdict acquitting the defendant of the offense

charged and convicting him of the included offense.”). Thus, before a lesser non-

included offense may be submitted to the jury under a theory-of-the-case instruction,

“there must be some evidence in the record to rationally support a conviction on the

lesser offense.” Aragon, 653 P.2d at 720 n.5. Where such evidence is lacking, it is not

error to refuse to give the requested instruction. Cf. Nunez, 841 P.2d at 265 & n.8

(noting that it is not error to reject a proposed theory-of-the-case instruction that is not

grounded in the evidence).

¶19    In addition, we have held that a defendant is not entitled to an instruction on a

lesser non-included offense that contradicts the defendant’s sworn testimony at trial.

See People v. Garcia, 826 P.2d 1259, 1262–64 (Colo. 1992). In Garcia, the defendant was

charged with second degree murder for the stabbing death of his girlfriend. His theory

                                             11
of defense at trial was that an intruder stabbed the victim. Id. at 1262. He nevertheless

requested a jury instruction on heat-of-passion manslaughter, which is not a lesser

included offense of second degree murder. Id. We held that the defendant could not

claim that an intruder stabbed the victim and at the same time obtain an instruction

based on the theory that the defendant stabbed the victim in the heat of passion. Id. at

1263–64. We reasoned that the only evidence supporting a heat-of-passion instruction

was a videotaped statement that the defendant had made to the police; however, the

defendant testified at trial that the statement had been a lie, which constituted a binding

judicial admission. Id. at 1262–63. We further observed that “[m]anslaughter was not

even Garcia’s theory of defense.” Id. at 1263. In short, although there was some

evidence in the record supporting a heat-of-passion instruction, that evidence was

contradicted by the defendant’s sworn testimony at trial; moreover, the requested

instruction on the lesser non-included offense was inconsistent with the defendant’s

theory of defense.3

                                    B. Application

¶20   We hold that the trial court did not err in refusing to instruct the jury on the

lesser non-included offense of disorderly conduct because we conclude that there was


3 Contrary to the court of appeals opinion in this case, our subsequent decision in
Brown v. People, 239 P.3d 764 (Colo. 2010), did not refine our holding in Garcia. See
Naranjo, ¶¶ 23–24. Rather, Brown concerned an instruction on a lesser included offense
governed by section 18-1-408(6); in that opinion, we expressly distinguished Garcia as
concerning “an inconsistent jury instruction on a lesser non-included offense” and
characterized our rejection of such an instruction in Garcia as “an appropriate judicial
remedy.” Brown, 239 P.3d at 768.


                                            12
no rational basis in the evidence to acquit Naranjo of the felony menacing charges while

simultaneously convicting him of disorderly conduct.

¶21   An individual commits felony menacing if he or she knowingly places or

attempts to place another person in fear of imminent serious bodily injury by the use of

a deadly weapon. § 18-3-206. Knowingly pointing a gun at another individual at close

range in the threatening manner described by the victims in this case constitutes felony

menacing. See People v. Hines, 780 P.2d 556, 559 (Colo. 1989) (“The term ‘use’ in

section 18-3-206 is broad enough to include the act of holding the weapon in the

presence of another in a manner that causes the other person to fear for his safety.”)

(collecting cases). Thus, to rationally acquit Naranjo of the felony menacing charges,

the jury would have had to discredit the victims’ testimony that Naranjo pointed the

gun at them at close range and told them, “You don’t want to fuck with me.”

¶22   However, even assuming the jury discredited this aspect of the victims’

testimony—which it was entitled to do—the jury rationally could not have

simultaneously convicted Naranjo of the lesser offense of disorderly conduct with a

deadly weapon based on the remaining trial evidence regarding the altercation, which

consisted principally of Naranjo’s testimony.

¶23   An individual commits disorderly conduct with a deadly weapon if he or she is

not a peace officer and intentionally, knowingly, or recklessly displays a deadly weapon

in a public place “in a manner calculated to alarm.” § 18-9-106(1)(f). It is not required

that the individual be aware that others will be alarmed, or that others are actually

alarmed. Rather, an individual may be criminally liable under this statute “if the act of

                                           13
displaying the deadly weapon would alarm a reasonable person observing the

conduct.” People v. Torres, 848 P.2d 911, 915 n.5 (Colo. 1993); cf. People v. Opana, 2017

CO 56, ¶¶ 13–16, 395 P.3d 757, 760–62 (construing the statutory phrase “force . . .

intended . . . to produce death” to refer to conduct that normally or typically would be

intended to produce death, regardless of the actor’s subjective intent).

¶24       The People contend that Naranjo was not entitled to an instruction on disorderly

conduct because there was no rational basis in the evidence to conclude that Naranjo

acted recklessly, as the defense argued in support of the instruction. In other words, the

People contend, there was no evidence that, in moving the gun to the glove

compartment to prevent it from discharging, Naranjo consciously disregarded a

substantial and unjustifiable risk that someone would observe the gun and be alarmed.

We instead conclude that, even assuming there was a rational basis to acquit Naranjo of

felony menacing, Naranjo was not entitled to the instruction because there was no

rational basis in the remaining evidence to conclude that Naranjo displayed a deadly

weapon “in a manner calculated to alarm.”

¶25       During his testimony at trial, Naranjo described his act of moving the gun from

the passenger seat to the glove box several times. Each time, Naranjo testified that he

merely picked up the gun from the passenger seat and placed it into the glove box:

         “Um, as I pressed on the brake, I reacted to my gun starting to slide off of the
          seat, and it slid a little and just off reaction, I reached over to pick it up . . . and to
          put it into my glove box.”

         “I casually reached to my passenger seat, um, opened the glove box, put the gun
          in.”


                                                  14
         “[The gun] was never pointed in any direction, um, the general direction up as I
          was lifting it up to put it in the glove box.”

         “[The gun] was like basically, the way I had it sitting on the seat, I guess it was
          pointed away from me and I picked it up, and I put it in the glove box in that
          same position.”

¶26       Naranjo emphatically denied that he ever brandished the gun or pointed it at

anyone. Moreover, it was undisputed that the victims were in the left lane and Naranjo

was in the right lane of the highway when the victims saw the gun. Thus, given

Naranjo’s testimony, his body would have been between the gun and the victims, and

there was no evidence of other vehicles in the vicinity whose occupants could observe

the gun.

¶27       The actions that Naranjo described in his testimony do not constitute disorderly

conduct under Colorado law because these actions would not “alarm a reasonable

person observing the conduct.” See Torres, 848 P.2d at 915 n.5. For example, it is not

unlawful in Colorado to possess a firearm in a private automobile for hunting or for the

lawful        protection     of    a     person     or     property      while     traveling.

§§ 18-12-105(2)(b), -105.5(3)(c), -105.6, C.R.S. (2017).     Were we to characterize as

disorderly conduct Naranjo’s account of the events—under which “[t]here was never

any pointing, never any brandishing, never any type of threat whatsoever with the

gun”—then the disorderly conduct statute would criminalize essentially every instance

in which an individual merely handles a gun publicly in another’s presence. Because

the disorderly conduct statute does not reach so broadly, and instead requires that an

individual’s actions be conducted “in a manner calculated to alarm,” see


                                              15
§ 18-9-106(1)(f), we conclude that Naranjo’s own testimony did not provide a rational

basis to convict him of disorderly conduct.

¶28   The court of appeals concluded that there was a rational basis to convict Naranjo

of disorderly conduct based on testimony that Naranjo “raised the gun up in the air.”

Naranjo, ¶¶ 3, 26. However, Naranjo did not testify at trial that he “raised the gun up

in the air” during the highway altercation; instead, Naranjo and one of the arresting

officers acknowledged that Naranjo had made this statement at the time of his arrest.

But neither Naranjo nor the victims testified at trial that Naranjo raised the gun up into

the air. Further, Naranjo expressly denied brandishing or pointing the weapon during

his trial testimony, and he testified that he lifted the gun only to place it in the glove

box, thereby directly contradicting his prior statement. Naranjo’s theory-of-defense

instruction similarly asserted that “at no point did [Naranjo] knowingly point, wave, or

threaten [the victims] with the pistol.” Under these circumstances, Naranjo’s prior

statement did not provide a rational basis for the jury to convict him of disorderly

conduct. Cf. Garcia, 826 P.2d at 1263 (holding that a defendant “cannot rely on a

statement that he has, under oath, declared to be false in order to obtain a [lesser non-

included] instruction”).

¶29   Thus, the only evidence that could have provided a rational basis for the jury to

convict Naranjo of either disorderly conduct or felony menacing was the victims’

testimony that Naranjo pointed the gun at them during a highway altercation. But, if

the jury credited that testimony, then the jury could not have rationally acquitted

Naranjo of felony menacing because the conduct described in the victims’ testimony

                                              16
rose to the level of felony menacing, see Hines, 780 P.2d at 559, not mere disorderly

conduct. Accordingly, the trial court correctly concluded that the jury instruction on

disorderly conduct was unwarranted in light of the evidence presented at trial.

                                   III. Conclusion

¶30   Considering the evidence presented at trial, we conclude that there was no

rational basis for the jury to simultaneously acquit Naranjo of felony menacing and

convict Naranjo of disorderly conduct. The trial court therefore did not err in refusing

to instruct the jury on the lesser non-included offense of disorderly conduct with a

deadly weapon. Accordingly, we reverse the judgment of the court of appeals.




                                           17
