     The summaries of the Colorado Court of Appeals published opinions
  constitute no part of the opinion of the division but have been prepared by
  the division for the convenience of the reader. The summaries may not be
    cited or relied upon as they are not the official language of the division.
  Any discrepancy between the language in the summary and in the opinion
           should be resolved in favor of the language in the opinion.


                                                                   SUMMARY
                                                                April 19, 2018

                                2018COA52

No. 14CA1392, People v. Margerum — Constitutional Law —
Sixth Amendment — Confrontation Clause; Criminal Law —
Trials — Right of Accused to Confront Witnesses; Evidence —
Witnesses — Scope of Cross-Examination; Crimes — Assault —
Menacing

     A division of the court of appeals considers whether the fact

that a witness is on probation at the time of trial, without more,

implicates a defendant’s constitutional right to cross-examine the

witness on potential motive, bias, or prejudice. The division

concludes that a witness’s probationary status alone does not

implicate a defendant’s constitutional right to cross-examine

witnesses. Rather, the facts of the case must show that a logical

connection exists between the probationary status and the

witness’s motive to testify in favor of one party.
     The division further addresses a novel question in Colorado:

Can the physical conduct underlying an assault conviction be the

same single action that underlies a menacing conviction? The

division concludes that a single physical act supporting an assault

conviction, with no additional physical action or verbal threat, can

be sufficient to simultaneously support a menacing conviction.

     Accordingly, the division affirms the judgment of conviction.
COLORADO COURT OF APPEALS                                        2018COA52


Court of Appeals No. 14CA1392
Jefferson County District Court No. 13CR1726
Honorable Tamara S. Russell, Judge


The People of the State of Colorado,

Plaintiff-Appellee,

v.

Lance Webster Margerum,

Defendant-Appellant.


                            JUDGMENT AFFIRMED

                                 Division V
                         Opinion by JUDGE ROMÁN
                        Dunn and Welling, JJ., concur

                           Announced April 19, 2018


Cynthia H. Coffman, Attorney General, Gabriel P. Olivares, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Douglas K. Wilson, Colorado State Public Defender, Meredith K. Rose, Deputy
State Public Defender, Denver, Colorado, for Defendant-Appellant
¶1    Defendant, Lance Webster Margerum, was convicted of

 unlawful sexual contact without physical force, third degree

 assault, and menacing with a deadly weapon. On appeal, he

 challenges the unlawful sexual contact and menacing convictions.

¶2    Defendant’s arguments raise two issues of first impression in

 Colorado. First, he argues that the trial court violated his rights

 under the Confrontation Clause by not allowing him to cross-

 examine a witness concerning her probationary status. We

 conclude that a witness’s probationary status alone does not

 implicate a defendant’s constitutional right to cross-examine the

 witness on potential motive, bias, or prejudice. Rather, the facts of

 the case must show a logical connection between the probationary

 status and the witness’s motive to testify in favor of one party.

¶3    Second, he argues that there was insufficient evidence to

 support his menacing conviction because the physical conduct

 underlying his assault conviction is the same single act underlying

 his menacing conviction. Answering a novel question in Colorado,

 we conclude that a single physical act supporting an assault

 conviction, with no additional physical action or verbal threat, can

 be sufficient to also support a menacing conviction.


                                    1
¶4    Accordingly, we affirm the judgment.

                           I.    Background

¶5    One afternoon, defendant was alone in a friend’s apartment

 with the friend’s girlfriend (E.S.). Defendant followed E.S. into her

 bedroom and began telling her that she could do better than her

 boyfriend and that she should kiss him. E.S. rebuffed his

 advances.

¶6    Defendant became angry and forced E.S. onto the bed,

 climbing on top of her. He kissed her face, neck, and chest and

 groped her buttocks and breasts. Then he tried to remove her

 clothing. E.S. continued resisting defendant, promising him that if

 he stopped, she would not tell anyone. Eventually he stopped and

 let her leave the apartment.

¶7    Shortly after E.S. left, defendant texted his sister (T.M.) to

 come to the apartment. He told her that he had a bag of clothes he

 wanted to give her.

¶8    T.M. arrived at the apartment with her one-year-old son. Once

 inside the apartment, T.M. discovered that defendant did not have

 any clothes for her. Defendant immediately began acting strangely




                                    2
  and grabbed his crotch while looking directly at T.M. T.M. turned

  to get her son and leave the apartment.

¶9     When T.M. turned her back on defendant, he — without

  warning — grabbed her around the neck and began choking her.

  T.M.’s vision became blurry and she had difficulty breathing. She

  later testified that at this point she felt like she “was going to die.”

  She and defendant fell onto the couch and then onto the floor.

  Defendant then pinned T.M. underneath him and began groping her

  body.

¶ 10   T.M. grabbed a glass candleholder and hit defendant on the

  back of the head, which allowed her to escape his grasp. She then

  grabbed her son and fled the apartment.

¶ 11   Based on these events, the People charged defendant with

  second degree burglary, two counts of unlawful sexual contact by

  physical force or physical violence, second degree assault, third

  degree assault, child abuse, and menacing with a deadly weapon.

¶ 12   At trial, defendant informed the court that he intended to

  impeach E.S. based on a prior event where she had used her

  cousin’s ID and a forged prescription in an attempt to obtain

  painkillers from a local pharmacy. E.S. pleaded guilty to


                                      3
  misdemeanor forgery in a different jurisdiction and was sentenced

  to a year of probation. She was on probation at the time of

  defendant’s trial.

¶ 13   The trial court ruled that the facts underlying E.S.’s conviction

  were admissible but that the conviction itself and her probationary

  status were inadmissible.

¶ 14   The jury acquitted defendant of four counts, but convicted him

  of unlawful sexual contact without physical force as to E.S., and

  third degree assault and menacing with a deadly weapon as to T.M.

                       II.    Confrontation Clause

¶ 15   Defendant argues the trial court violated his constitutional

  right to confront witnesses against him when it precluded him from

  cross-examining E.S. regarding her probationary status. Because

  the record contains no facts logically connecting the witness’s

  probationary status with her motive to testify in defendant’s trial,

  we disagree.

                             A.   Preservation

¶ 16   As a preliminary matter, the People argue that defendant did

  not preserve this claim for appellate review. We disagree.




                                     4
¶ 17   Where a defendant raises an issue sufficiently to give the trial

  court an opportunity to rule on the claim raised on appeal, we

  conclude the claim is sufficiently preserved. People v. Boulden,

  2016 COA 109, ¶ 5.

¶ 18   At trial, defense counsel informed the trial court that E.S. had

  a misdemeanor forgery conviction that “she is currently on

  probation for,” and that he intended to bring up this subject on

  cross-examination. The trial court reserved ruling on this issue.

¶ 19   The trial court revisited the issue before E.S. testified. The

  prosecutor argued that the conduct underlying the conviction was

  inadmissible, but conceded “[t]he fact that she is testifying, and she

  still is under probation; that can be the subject of some cross-

  examination.” The trial court questioned the prosecutor about this

  position, and the prosecutor responded “whether or not the fact

  that someone has a current case pending or if they are under

  supervision can be brought out in their testimony as it relates to

  [bias]. . . . I think that’s what the caselaw says.”

¶ 20   Defense counsel then argued why the underlying conduct was

  admissible for impeachment, without addressing the point about

  probation that the prosecutor had just conceded, concluding that “I


                                     5
  don’t think it’s prejudicial, especially if [the prosecutor] is saying we

  can ask about the probation.”

¶ 21   The prosecutor responded and slightly altered his position,

  citing People v. Melanson, 937 P.2d 826 (Colo. App. 1996), for the

  proposition that probationary status in another jurisdiction is not

  admissible for impeachment.

¶ 22   The trial court ruled on the issue as follows:

             I don’t know of any case law at all that you can
             cross-examine someone about being on
             probation for a misdemeanor if it’s not within
             their jurisdiction, if it doesn’t have anything to
             do with the case, if it’s not to, as you indicated,
             curry favor. So I’m not going to allow you to go
             into that.

¶ 23   Based on this record, it is clear that defendant raised the

  issue, the prosecutor responded, and the trial court issued a ruling.

  Accordingly, the claim is sufficiently preserved for appellate review.

                           B.    Applicable Law

¶ 24   The right of a criminal defendant to confront witnesses against

  him or her is guaranteed by both the United States and Colorado

  Constitutions. U.S. Const. amends. VI, XIV; Colo. Const. art. II, §

  16. The primary interest secured by the right to confrontation is




                                      6
  the right of cross-examination. Davis v. Alaska, 415 U.S. 308, 315

  (1974).

¶ 25   The scope and duration of cross-examination are controlled by

  the trial court, and judges have wide latitude under the

  Confrontation Clauses to impose reasonable limits on cross-

  examination. Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986);

  Kinney v. People, 187 P.3d 548, 559 (Colo. 2008).

¶ 26   Nonetheless, the right of confrontation requires courts to allow

  broad cross-examination of a prosecution witness as to bias,

  prejudice, and motivation for testifying. People v. Bowman, 669

  P.2d 1369, 1375 (Colo. 1983). This is especially important when a

  witness faces pending criminal charges and there is a possibility

  that a promise of leniency, or even the mere hope of leniency, might

  influence the witness’s testimony in the defendant’s case. Id. (citing

  People v. King, 179 Colo. 94, 98, 498 P.2d 1142, 1144-45 (1972)).

¶ 27   Likewise, the need for wide latitude in cross-examination is

  present when a prosecution witness is on probation and her

  testimony could be prompted by fear or concern for possible

  jeopardy to her probationary status. Davis, 415 U.S. at 311, 317-

  18; Bowman, 669 P.2d at 1375.


                                    7
¶ 28    To be sure, the defendant must “merely show the possibility

  . . . that the witness’s testimony was being influenced.” Kinney,

  187 P.3d at 560. “Even when there has not been an explicit

  promise of leniency made by the prosecution, an offer of proof or

  testimony by the witness articulating an expectation for leniency

  has not been required.” Id. at 561.

¶ 29    The Colorado Supreme Court has clarified that the relevant

  test for whether a trial court must permit cross-examination on

  pending cases is “whether the particular facts of the case show that

  the witness’s testimony might have been influenced by a promise

  for, or simply a hope or expectation of, leniency in exchange for

  favorable testimony.” Id. (emphasis added).

¶ 30    On review, we will not disturb a trial court’s ruling on the

  scope and limits of cross-examination absent an abuse of

  discretion. See People v. Conyac, 2014 COA 8M, ¶ 91. While the

  court has discretion to limit cross-examination, it is constitutional

  error to limit excessively a defendant’s cross-examination. Id. at ¶

  92.




                                     8
                          C.    Davis v. Alaska

¶ 31   Defendant primarily relies on the seminal United States

  Supreme Court case of Davis v. Alaska. He argues that in cases,

  such as here, where the trial court prevents cross-examination on a

  witness’s probationary status, Davis compels reversal because a

  witness’s probationary status shows a potential bias or motive in

  testifying. Defendant reads Davis too broadly.

¶ 32   In Davis, the defendant was charged with a burglary in which

  a safe was stolen from a bar. 415 U.S. at 309. Police later

  discovered the empty safe near where Richard Green lived. Id. At

  the time, Green was on juvenile probation for committing two

  burglaries. Id. at 311. Green identified the defendant as one of two

  men he had seen and spoken to a day after the burglary, near

  where the safe was found. Id. at 310.

¶ 33   At trial, the defendant wanted to show that Green was on

  probation for burglary and thus had a strong motive to lie in order

  to shift any suspicion away from himself, particularly given that the

  safe in question was found abandoned near his home. Id. at 311.

  The trial court refused to allow this evidence. Id.




                                     9
¶ 34   On appeal, the Supreme Court held that, “[o]n these facts,” the

  trial court had violated the defendant’s constitutional right to cross-

  examine the witness against him for bias and motive. Id. at 318.

  The Court observed that this line of questioning was allowable

  because the defendant sought to develop a claim of bias based on

  “Green’s vulnerable status as a probationer, as well as [on] Green’s

  possible concern that he might be a suspect in the investigation.”

  Id. (citation omitted).

¶ 35   In reaching this holding, the Davis Court carefully explained

  the issue was not a general attack on a witness’s credibility through

  evidence of a prior crime, but a “more particular attack on the

  witness’ credibility . . . by means of cross-examination directed

  toward revealing possible biases, prejudices, or ulterior motives of

  the witness as they may relate directly to issues or personalities in

  the case at hand.” Id. at 316.

¶ 36   Whether based on Green’s probationary status or his concern

  that he was a potential suspect, the defendant’s allegations of

  witness bias were directly related and connected “to issues or

  personalities in the case at hand.” Id. The Court explained that

  Green might have offered biased testimony, believing himself a


                                    10
  possible suspect, both because he had been involved in similar

  crimes and because the stolen safe was found near his home. See

  id. at 311. Further, the police might also have brought undue

  pressure on Green to make an identification of someone — anyone

  — because he was in a vulnerable relationship with the state and

  feared probation revocation. Id.

¶ 37   In his concurring opinion, Justice Stewart summarized the

  holding of Davis as follows:

               The Court holds that, in the circumstances of
               this case, the Sixth and Fourteenth
               Amendments conferred the right to cross-
               examine a particular prosecution witness
               about his delinquency adjudication for
               burglary and his status as a probationer.
               Such cross-examination was necessary in this
               case in order “to show the existence of possible
               bias and prejudice . . . .”

  Id. at 321 (Stewart, J., concurring) (emphasis added).

¶ 38   Thus, Davis is a fact-specific holding and does not establish a

  general rule that a defendant may always use the probationary

  status of a witness to impeach for bias or motive.

                            D.   Colorado Cases

¶ 39   No Colorado case has squarely analyzed the issue raised by

  this case.


                                      11
¶ 40   In Kinney, our supreme court addressed when a defendant

  has a right under the Confrontation Clauses to cross-examine a

  witness about a pending criminal case — not a witness’s

  probationary status. See 187 P.3d at 560. Further, Kinney

  involved facts beyond the mere existence of pending charges, as

  there was evidence that the prosecutor’s office had provided

  “ongoing, significant help” to the witness on an earlier charge. Id.

  at 551.

¶ 41   The closest case in Colorado is People v. Jones, 971 P.2d 243,

  244 (Colo. App. 1998), overruled on other grounds by People v.

  Segovia, 196 P.3d 1126 (Colo. 2008), in which a division of this

  court also concluded that excluding evidence of a witness’s

  probationary status did not violate the defendant’s rights under the

  Confrontation Clauses.

¶ 42   However, the division in Jones reached this conclusion

  without significant discussion and without the benefit of the test

  announced in Kinney. More importantly, the analysis in Jones left

  out a critical point. The opinion turned on the division’s

  observation that “the wife would not have been implicated in any

  wrongdoing that might have jeopardized her status as a


                                    12
  probationer.” 971 P.2d at 244. But the Supreme Court clearly

  identified that probationary status may be “admissible to afford a

  basis for an inference of undue pressure because of [the witness’s]

  vulnerable status as a probationer, as well as of [the witness’s]

  possible concern that he might be a suspect in the investigation.”

  Davis, 415 U.S. at 318 (footnote and citation omitted) (emphasis

  added).

¶ 43   Thus, the case law in Colorado does not sufficiently answer

  whether a witness’s probationary status alone implicates a

  defendant’s rights under the Confrontation Clauses.

                        E.   Other Jurisdictions

¶ 44   Courts in other jurisdictions have addressed this issue.

¶ 45   Some courts have held that probationary status is not

  automatically admissible to impeach a witness for bias or motive.

  This position is typified by the Texas Court of Criminal Appeals’

  opinion in Irby v. State, 327 S.W.3d 138 (Tex. Crim. App. 2010).

  There, the majority explained that

            a “vulnerable relationship” based on a
            witness’s pending charges or probationary
            status does not hover cloud-like in the air,
            ready to rain down as impeachment evidence
            upon any and all such witnesses. There must


                                    13
            be some logical connection between that
            “vulnerable relationship” and the witness’s
            potential motive for testifying as he does. . . .
            [T]his “causal connection” or logical
            relationship is a matter of simple relevance
            under Rule 401. Evidence that a witness is on
            probation, is facing pending charges, or has a
            prior juvenile record is not relevant for
            purposes of showing bias or a motive to testify
            absent some plausible connection between
            that fact and the witness’s testimony.

  Id. at 147-49 (footnote omitted).1

¶ 46   Some jurisdictions have taken the opposite position. For

  example, the Oregon Court of Appeals has held that

            [e]vidence that a person is on probation and at
            risk of having that probation revoked is
            generally relevant to that person’s credibility
            when he or she testifies for the prosecution in
            a criminal case, except, perhaps, in
            extraordinary circumstances . . . (for example,
            if the term of probation was due to expire very
            shortly after the trial).


  1 Other courts have also held that when there is a logical
  connection between the witness’s probationary status and the
  factual basis for a potential bias, the defendant is entitled, under
  Davis, to impeach that witness with that status. See, e.g., People v.
  Brady, 236 P.3d 312, 325 (Cal. 2010) (The trial court did not err in
  limiting the defendant’s cross-examination of a witness where
  “[d]efendant made no showing that [the witness] actually had been
  offered leniency or threatened with retaliation by the prosecution.
  In fact, the trial prosecutor was not even aware [the witness] was on
  probation until his criminal record was checked during the course
  of defendant’s trial.”).

                                       14
  State v. Shelly, 157 P.3d 234, 236 (Or. Ct. App. 2007). These

  jurisdictions conclude that the necessary “logical relationship stems

  from the very fact that the witness is testifying for the same entity,

  the State, which also supervises his probation.” Irby, 327 S.W.3d

  at 161 (Holcomb, J., dissenting).2

¶ 47   We are persuaded by those authorities that hold that

  probationary status is not automatically admissible to impeach a

  witness for bias or motive; instead some logical connection between

  the probationary status and the witness’s potential motive for

  testifying is required. While we appreciate that in many cases it

  may take very little to connect a witness’s probationary status to a

  motive to testify, we are not convinced that probationary status is

  relevant in all cases.

¶ 48   We reach this conclusion in part because Colorado courts

  have weighed in on aspects of this issue. Indeed, a rule that the


  2 See Scott v. State, 730 So. 2d 732, 732-33 (Fla. Dist. Ct. App.
  1999) (“Such evidence has probative value to show that the witness
  has motive to testify so as to please authorities who have discretion
  over his status.”); State v. Bowen, 867 P.2d 1024, 1032 (Kan. 1994)
  (A witness’s “status of being on probation created a relationship
  with the State,” “a person on probation would be loath to do
  anything that could be displeasing to the authorities,” and such a
  witness “may have been eager to please the State.”).

                                    15
  mere fact of being on probation is always a basis for showing the

  potential bias or interest of a witness would contrary to the fact-

  specific test announced by our supreme court. Kinney, 187 P.3d at

  561 (“[R]eviewing courts have examined whether the particular facts

  of the case show that the witness’s testimony might have been

  influenced . . . .”) (emphasis added). And it would be inconsistent

  with similar cases in which our supreme court has held that

  evidence an arrest or pending charge against a witness, without

  more, is not admissible. Id. at 559 (citing King, 179 Colo. at 98,

  498 P.2d at 1144).

¶ 49   The contrary position is also at odds with decisions by other

  divisions of this court holding that trial courts did not err in limiting

  cross-examination regarding a witness’s probationary status. See

  Jones, 971 P.2d at 244 (There was no error because there was “no

  evidence even to suggest that defendant’s wife believed her

  probationary status was in jeopardy. Nor was there any basis for

  such a belief.”); Melanson, 937 P.2d at 839 (concluding there was

  no error “because the witness was on probation in the state of

  Washington, [and] Colorado prosecutors had no authority or ability

  to affect the witness’ probation status”).


                                     16
¶ 50   Thus, we reject defendant’s position that a witness’s

  probationary status is always admissible to show a witness’s

  possible bias and motive to testify as inconsistent with Colorado

  and United States Supreme Court precedent.

                            F.      Application

¶ 51   E.S. was serving a one-year probation for a forgery conviction

  at the time of defendant’s trial. Defendant points to no other facts

  that otherwise logically connect E.S.’s probationary status with her

  testimony at defendant’s trial.

¶ 52   Not only that, but the record shows that E.S. was on probation

  in Broomfield County, while defendant was on trial in Jefferson

  County. These counties are in two different judicial districts, with

  different district attorneys and probation offices. So there is even

  less of a logical connection between being on probation and a

  motive to testify in this case because the jurisdictions and

  government actors are different. See Melanson, 937 P.2d at 839.

¶ 53   Accordingly, we conclude the trial court did not err because

  the particular facts of this case do not show that the witness’s

  testimony might have been influenced by a promise for, or simply a




                                     17
  hope or expectation of, leniency in exchange for favorable

  testimony. See Kinney, 187 P.3d at 561.

                    III.    Sufficiency of the Evidence

¶ 54   Defendant also contends that there was insufficient evidence

  to support his conviction for felony menacing. First, he argues the

  menacing statute requires that a defendant’s statement or action

  place the victim in fear before any actual injury. Second, he argues

  the conduct underlying his menacing conviction cannot be the

  same single act as the conduct underlying his assault conviction.

  Again, we disagree.

                           A.   Standard of Review

¶ 55   We review the sufficiency of the evidence de novo. People v.

  McCoy, 2015 COA 76M, ¶ 37 (cert. granted Oct. 3, 2016). When

  reviewing the evidence, we consider the evidence as a whole and in

  the light most favorable to the prosecution, giving the prosecution

  the benefit of every reasonable inference that can be drawn from the

  evidence. People v. Shawn, 107 P.3d 1033, 1034 (Colo. App. 2004).

  The evidence is sufficient if it supports “a rational conclusion that

  the defendant is guilty of the crime charged beyond a reasonable

  doubt.” McCoy, ¶ 37; Shawn, 107 P.3d at 1034.


                                     18
                      B.    Fear Before Any Injury

¶ 56   A defendant commits menacing if “by any threat or physical

  action, he or she knowingly places or attempts to place another

  person in fear of imminent serious bodily injury.” § 18-3-206(1),

  C.R.S. 2017; Shawn, 107 P.3d at 1034. In determining whether the

  defendant knowingly placed another person in fear of imminent

  serious bodily injury, the proper focus is on the defendant’s intent,

  not the victim’s perception or reaction. Shawn, 107 P.3d at 1035.

  “The prosecution need only prove the defendant was aware that his

  or her conduct was practically certain to cause fear.” Id.; People v.

  Manzanares, 942 P.2d 1235, 1239 (Colo. App. 1996). The

  defendant’s subjective awareness may be inferred from his conduct

  and the surrounding circumstances; direct evidence need not be

  presented. Manzanares, 942 P.2d at 1239.

¶ 57   Here, the prosecution argued that the jury could reasonably

  conclude that by strangling T.M., defendant intended to place her in

  fear of imminent bodily injury. In support of this position, the

  prosecution presented testimony from T.M. that while defendant

  strangled her she had trouble breathing, her vision became blurry,

  and she thought she was going to die.


                                    19
¶ 58   Defendant argues this was insufficient for a conviction

  because the menacing statute requires that “the defendant’s

  statement or gesture communicate a threat in a way that places the

  victim in fear before she is actually injured.” Thus, he argues that

  because the evidence showed he grabbed T.M. from behind without

  warning and proceeded to choke her, the evidence proved “not

  imminent serious bodily injury, but actual, present injury.”

¶ 59   This argument has at least two flaws. First, it has a faulty

  premise. The language of the statute does not require, either

  explicitly or implicitly, that the victim be placed in fear before he or

  she is injured. It requires only that the defendant “by any threat or

  physical action, . . . knowingly places or attempts to place another

  person in fear of imminent serious bodily injury.” § 18-3-206(1). It

  is therefore irrelevant whether the victim is injured before, during,

  or after he or she is placed in fear of imminent serious bodily injury,

  so long as the defendant’s actions place or attempt to place the

  victim in such fear.

¶ 60   Second, it presumes that actual, present injury cannot be the

  basis for fear of imminent serious bodily injury. The facts of this

  case perfectly illustrate why this is wrong. When defendant began


                                     20
  strangling T.M., he caused her actual injury. But it was this injury

  that also reasonably caused her to fear that additional serious

  injury was imminent — namely, that defendant would keep choking

  her until she died. Thus, considered in the light most favorable to

  the prosecution, the evidence supports “a rational conclusion that

  the defendant is guilty of the crime charged beyond a reasonable

  doubt.” McCoy, ¶ 37.

¶ 61   Accordingly, we reject defendant’s argument that the evidence

  was insufficient because it did not establish that he threatened the

  victim before injuring her.

                   C.    Violation of Multiple Statutes

¶ 62   “[A] single transaction may give rise to the violation of more

  than one statute.” People v. James, 178 Colo. 401, 404, 497 P.2d

  1256, 1257 (1972). “When any conduct of a defendant establishes

  the commission of more than one offense, the defendant may be

  prosecuted for each such offense.” § 18-1-408(1), C.R.S. 2017.

  And “[i]f the same conduct is defined as criminal in different

  enactments or in different sections of this code, the offender may be

  prosecuted under any one or all of the sections or enactments,”

  subject to certain limitations not relevant here. § 18-1-408(7). It is


                                    21
  up to the prosecution to determine which crimes to charge when a

  person’s conduct arguably violates more than one statute. James,

  178 Colo. at 404, 497 P.2d at 1258; see also People v. Smith, 938

  P.2d 111, 115 (Colo. 1997) (“Ordinarily, a prosecutor has discretion

  to charge any applicable offense.”).

¶ 63   Defendant argues the conduct underlying his menacing

  conviction cannot be the same single act as the conduct underlying

  his assault conviction. But he presents no basis to depart from the

  law establishing that a person can commit two crimes with one act.

  He does not argue that menacing is a lesser included offense, and

  our case law makes clear that it is not. See, e.g., People v.

  Truesdale, 804 P.2d 287, 289 (Colo. App. 1990) (“[F]elony menacing

  is not a lesser included offense of second degree assault.”). Nor has

  defendant provided us with any case law establishing the

  proposition that a single act constituting assault cannot, in and of

  itself, also prove menacing.

¶ 64   Defendant is correct that in prior published cases in which

  Colorado courts have affirmed convictions for both menacing and

  assault convictions, the defendant committed two distinct acts: one

  that knowingly placed or attempted to place the victim in fear of


                                    22
  injury, and one that caused actual injury to the victim. See People

  v. Williams, 827 P.2d 612, 614-15 (Colo. App. 1992) (deciding there

  was sufficient evidence to sustain menacing and assault convictions

  where the defendant placed a knife at the throat of one victim

  stating, “If you move, I’ll kill you,” and also kicked and stabbed

  another victim); Truesdale, 804 P.2d at 288-89 (holding there was

  sufficient evidence to sustain menacing and assault convictions

  where the defendant confronted the witness with a gun, saying, “I’m

  gonna blow your fucking brains out,” and injured the victim’s hand

  when it was pushed against the cocked hammer of the gun).

¶ 65   But simply because these cases upheld convictions when the

  defendant committed two separate acts does not support the rule

  that defendant advocates for here. Indeed, nothing in these cases

  suggest such a rule. And such a rule would be contrary to the

  established law that the same conduct can subject a defendant to

  criminal liability under multiple statutes.

¶ 66   Nor are we convinced by defendant’s argument that if we hold

  that the single act constituting the assault, with no additional

  physical action or verbal threat, can be sufficient to show an intent




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  to cause fear, then every instance of assault would necessarily

  include menacing.

¶ 67   Indeed, the cases cited by defendant support the opposite

  conclusion: “the fact that a defendant intentionally caused or

  attempted to cause bodily injury to an intended victim does not

  necessarily compel the conclusion that the defendant also knowingly

  placed the victim in fear of serious bodily injury.” Truesdale, 804

  P.2d at 288-89 (emphasis added).

¶ 68   Further, contrary to defendant’s position, all defendants in

  assault cases will not necessarily face criminal liability for

  menacing simply because the victim is afraid during an assault,

  because the proper focus is on the defendant’s intent, not the

  victim’s perception or reaction. Shawn, 107 P.3d at 1035.

¶ 69   Accordingly, we reject defendant’s contention that there was

  insufficient evidence to convict him of felony menacing because the

  same physical act underlies his assault conviction.

                             IV.   Conclusion

¶ 70   The judgment is affirmed.

       JUDGE DUNN and JUDGE WELLING concur.




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