A recent Colorado Supreme Court opinion was of interest to the criminal defense lawyers at the O’Malley Law Office. The high court was asked to examine a lower court trial in Pueblo where a man was convicted of two counts of Menacing after the trial court refused to give a jury instruction for Disorderly Conduct with a Gun. The case was called People v. Naranjo, and on May 7, 2015, the Colorado Supreme Court reversed the trial court on the convictions. The facts as detailed by the witnesses were that the defendant displayed a firearm in highway traffic following an encounter with a man and his daughter. After being convicted of two counts of Felony Menacing, the man is now entitled to a new trial – with a lesser non-included jury instruction.
What is Felony Menacing in Arapahoe County?
Listed at C.R.S. 18-3-206, Menacing is defined as any threat to place someone in fear of imminent serious bodily injury. It is a class 3 misdemeanor normally, but a class 5 felony if a deadly weapon is displayed or said to be possessed.
What is Disorderly Conduct with a Deadly Weapon in Denver County?
Defined at C.R.S. 18-9-106, Disorderly Conduct with a deadly weapon results if a man recklessly displays a deadly weapon (like a gun or any firearm) in a public place in a manner calculated to alarm. Read three other ways to be charged with Disorderly Conduct.
The advantage of Disorderly Conduct over Felony Menacing is that this version of Disorderly Conduct is a class 2 misdemeanor with a maximum sentence of one year in the Adams County Jail, compared to a much longer sentence for Menacing. It should be obvious why someone would prefer to be convicted of a nonfelony misdemeanor rather than a class five felony, which as a maximum three year prison sentence in the Colorado Department of Corrections. The Supreme Court understood this as well.
The Lesser Non-Included Offense – How Did the Judge Go Wrong?
The Supreme Court stated that a person is entitled to a lesser nonincluded jury instruction for a non-charged crime when the facts of the case as developed at trial support the charge, the defendant requests the jury instruction and there is a rational basis that the jury might acquit the defendant of the original charge in favor of the lesser. For example, you could not ask for a harassment charge instruction in Jefferson or Douglas County Court if the elements of harassment could not be met based on the testimony of the witnesses. But, as here, since the facts alleged supported the Disorderly Conduct with a gun definition, the instruction should have been given. This would have given the jury a lesser charge option to convict the man of, instead of Menacing. It is important to remember that the jury could potentially convict the man of Menacing AND Disorderly Conduct. So, if the defendant wants the advantage of a possible conviction of a misdemeanor only, he also must be prepared that he could be convicted of all the charges – including the one he requested.
Confused? Criminal law can get complicated. Our lawyers would be glad to explain to you the advantages of both lesser included offense instructions and lesser non-included jury instructions. Each has their advantage and can be requested by a defendant when strategically appropriate. Call our lawyers right away at 303-830-0880, when contacted by police and never answer their questions. Together, we can protect your future.