The Colorado Court of Appeals issued its opinion in People v. Lopez on Thursday, April 23, 2015.
Assault—Menacing—Obstructing a Peace Officer—Jury Instruction—Attempt—Ineffective Assistance of Counsel—Crim.P. 33.
Defendant assaulted his wife and broke her clavicle. A uniformed officer found defendant outside the hospital. When the officer attempted to speak to him about his wife’s injuries, defendant became aggressive and threatening toward the officer. A jury convicted defendant of second-degree assault causing serious bodily injury, menacing by the use of a deadly weapon, and obstructing a peace officer.
On appeal, defendant contended that the evidence was insufficient to establish that he committed the crime of menacing against the police officer. Evidence showed that defendant made a threat and that he placed or attempted to place the first officer in fear of imminent serious bodily injury by telling her he had a knife and approaching her in an aggressive manner. This was sufficient to support a conviction for misdemeanor and felony menacing.
Defendant contended that the record did not contain sufficient evidence to support the conviction for obstructing a peace officer because the officer had not arrested nor intended to arrest defendant at the time. The obstructing statute is not limited to officers making arrests, and there was sufficient evidence that defendant’s conduct violated the obstructing statute even though the first officer did not arrest him.
Defendant also argued that the trial court erred when it instructed the jury on criminal attempt, even though the prosecution had not charged defendant with attempt. Because defendant was charged with menacing, and menacing includes the element of attempt, the court did not err in instructing the jury on the definition of attempt.
Defendant argued that the trial court erred when it denied his motion for a new trial because his trial counsel had been ineffective. Because defendant raised this as a Crim.P. 33 motion instead of a Crim.P. 35(c) motion, the trial court’s decision to deny defendant’s Crim.P. 33 motion without a hearing was reviewed for an abuse of discretion. The Court of Appeals found that the trial court’s rulings were not manifestly arbitrary, unreasonable, or unfair because defendant failed to prove prejudice based on any alleged errors. The judgment was affirmed.