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 February 21, 2019

No. 16CA0737, People v. Denhartog — Crimes — Assault in the First Degree — Peace Officers, Firefighters, or Emergency Medical Services Providers

During a traffic stop, the defendant suddenly and without

warning backed his car into a police officer’s motorcycle, injuring

the officer. He was convicted of first degree assault of a peace

officer, which requires proof that the defendant “threatened” the

peace officer with a deadly weapon. On appeal, he argued the

evidence was insufficient to support his conviction because the

prosecution failed to prove he “threatened” the officer.

A division of the court of appeals agrees, concluding that,

consistent with prior case law construing the term, “threaten”

means to express a purpose or intent to cause harm or injury and

the act of suddenly hitting the officer’s motorcycle, without more, does not constitute a threat. Accordingly, the division vacates the

defendant’s conviction for first degree assault.

The division rejects the defendant’s remaining challenges to

his convictions and sentences, with the exception of his claim,

conceded by the People, that his multiple convictions for second

degree assault must merge. COLORADO COURT OF APPEALS

Court of Appeals No. 16CA0737 El Paso County District Court No. 15CR1196 Honorable David S. Prince, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Robert Leonard Denhartog,

Defendant-Appellant.

JUDGMENT AFFIRMED IN PART, VACATED IN PART, AND CASE REMANDED WITH DIRECTIONS

Division IV Opinion by JUDGE HARRIS Hawthorne and Fox, JJ., concur

Announced February 21, 2019

Philip J. Weiser, Attorney General, Jillian J. Price, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellant

Megan A. Ring, Colorado State Public Defender, Jon W. Grevillius, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant ¶1 Defendant, Robert Leonard Denhartog, was convicted of

various felony, misdemeanor, and traffic offenses after he suddenly

reversed his vehicle during a traffic stop, striking a patrol officer’s

motorcycle, then fled the scene and broke into an unoccupied

apartment.

¶2 On appeal, he contends that the evidence was insufficient to

support his conviction for first degree assault of a peace officer and

that the court erred by admitting prior bad act evidence and by

allowing prosecutorial misconduct in closing argument. He also

argues that various convictions must merge and that certain

sentences must run concurrently.

¶3 We agree that the evidence did not establish that Denhartog

threatened the patrol officer with a deadly weapon and we therefore

vacate his conviction and sentence for first degree assault. We also

agree, as do the People, that the second degree assault convictions

must be merged. But we otherwise reject Denhartog’s challenges to

his convictions and sentences.

¶4 Accordingly, we affirm the judgment in part, vacate it in part,

and remand for resentencing.

1 I. Background

¶5 A motorcycle officer on patrol in Colorado Springs observed

Denhartog speeding and pulled him over. The officer parked about

twelve feet behind Denhartog’s Jeep.

¶6 According to the officer’s testimony at trial, as he looked down

to adjust his kickstand and prepared to dismount from his bike,

Denhartog suddenly reversed the Jeep and drove “extremely fast”

into the motorcycle, pushing the bike backwards and rendering it

inoperable. The officer did not see the Jeep coming toward him; he

realized that the Jeep was reversing only “as it hit [him].” The

impact caused the officer to fall and, as a result, he sustained

minor injuries.

¶7 Denhartog left the scene and drove to a nearby apartment

complex where he broke into an unoccupied apartment. The

prosecution presented evidence that, once inside, Denhartog caused

damage to the apartment and the tenant’s belongings and set fire to

contraband he was carrying. After several hours, police entered the

apartment and arrested him.

¶8 Denhartog was charged with fifteen felony, misdemeanor, and

traffic offenses. As relevant here, the jury convicted him of first

2 degree assault of a peace officer, two counts of second degree

assault, vehicular eluding, first degree criminal trespass, and

second degree burglary.

II. Sufficiency of the Evidence of First Degree Assault

¶9 A person commits the crime of first degree assault of a peace

officer when, with the intent to cause serious bodily injury, he

“threatens [the officer] with a deadly weapon” while the officer is

engaged in the performance of his or her duties, and the person

knows or reasonably should know that the victim is a peace officer.

§ 18-3-202(1)(e), C.R.S. 2018.

¶ 10 Denhartog does not dispute that a car can be used as a deadly

weapon, see People v. Stewart,

(Colo. 2002), or

that, when viewed in the light most favorable to the prosecution, the

evidence is sufficient to support a conviction for second degree

assault, see § 18-3-203(1)(b), C.R.S. 2018 (a person commits

second degree assault when, with intent to cause bodily injury, he

causes such injury to another person by means of a deadly

weapon). But, he says, the evidence is insufficient to prove first

degree assault of a peace officer because there was no evidence that

he used the Jeep to “threaten” the officer. We agree.

3 A. Standard of Review

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

Perez,

. We must determine whether the evidence,

when viewed as a whole and in the light most favorable to the

prosecution, is substantial and sufficient to support a conclusion

by a reasonable jury that the defendant is guilty beyond a

reasonable doubt. People v. Campos,

.

¶ 12 Denhartog’s sufficiency of the evidence claim turns on the

meaning of a provision of the first degree assault statute. The

meaning of a statute is a question of law that we review de novo.

Id. at ¶ 10.

¶ 13 The People say that because Denhartog’s motion for judgment

of acquittal was too general and he failed to renew it at the close of

the evidence, he did not preserve his sufficiency of the evidence

claim, and we must review that claim for plain error.

¶ 14 Divisions of this court are split on whether to review an

unpreserved sufficiency of the evidence claim for plain error.

Compare People v. McCoy,

, ¶¶ 21, 36 (declining to

review for plain error), with People v. Lacallo,

(applying plain error standard of review to the defendant’s

4 unpreserved claim). We are persuaded by the majority’s reasoning

in McCoy, ¶¶ 6-36, and the reasoning of the special concurrences in

Lacallo, ¶¶ 59-73 (Roman, J., concurring in part and dissenting in

part), and People v. Heywood,

(Gabriel, J.,

specially concurring), so we apply that reasoning here and reject the

People’s proposed standard of review.

B. “Threatening” a Peace Officer Requires Proof That Defendant Expressed a Purpose or Intent to Cause Harm

¶ 15 The first degree assault of a peace officer statute criminalizes

the use of a deadly weapon to threaten a peace officer. § 18-3-

202(1)(e). Denhartog argues that to “threaten” requires some

communication of an intent to take hostile action, and the evidence

showed only that he suddenly, and without warning, backed his

Jeep into the officer’s motorcycle. The People, on the other hand,

argue that to “threaten” includes not just communication of an

intent to take action but also the commission of any act that places

an officer at risk of harm. So, they contend, Denhartog

“threatened” the officer by hitting him with the Jeep.

5 ¶ 16 True, as the parties note, the first degree assault statute does

not define the term “threaten” or “threat.” But we are hardly writing

on a blank slate.

¶ 17 In interpreting various statutes in the criminal code, the

supreme court and divisions of this court have consistently defined

“threat” to mean “a statement” or “declaration” of “purpose or intent

to cause injury or harm to the person, property, or rights of

another, by the commission of an unlawful act.” People v. Hickman,

(Colo. 1999) (quoting People v. Hines,

(Colo. 1989), and Schott v. People,

,

(1971) (defining “threat” as used in the retaliation

against a witness statute)); see also People v. Chase,

,

¶ 69 (defining “threat” in the context of the stalking statute).

¶ 18 Nearly thirty years ago, in Hines, the supreme court defined

“threat” in the context of the felony menacing statute.

. We find Hines particularly instructive because the felony

menacing statute proscribes, in part, the same conduct proscribed

by the first degree assault of a peace officer statute — using a

deadly weapon to threaten another person. See § 18-3-206(1)(a),

C.R.S. 2018 (a person commits felony menacing if, by any threat or

6 physical action, and with the use of a deadly weapon, he knowingly

places or attempts to place another person in fear of imminent

serious bodily injury). And in Hines, the supreme court held that

the act of threatening another person requires “a statement of

purpose or intent to cause injury or harm . . . .”

.

¶ 19 We discern no basis to apply a different definition of “threaten”

to the same conduct described in the first degree assault statute,

and the People do not suggest one. To the contrary, Hickman

makes clear that we should apply the definition of threat provided

by the felony menacing case law to other provisions of the criminal

code, as the supreme court did in that case.

; see

also § 2-4-101, C.R.S. 2018 (In interpreting a statute, “[w]ords or

phrases that have acquired a . . . particular meaning, whether by

legislative definition or otherwise, shall be construed accordingly.”).

¶ 20 Even if prior case law did not settle the question, we would

reject the People’s proposed definition of “threat,” which includes

any action that puts a peace officer at risk of harm, because it is

irreconcilable with the plain language of the statute. As a matter of

basic statutory interpretation, we construe statutes as written,

without adding words or phrases, People v. Diaz,

,

7 as we presume the legislature “meant what it clearly said,” State v.

Nieto,

(Colo. 2000). In our view, if the legislature

had intended section 18-3-202(1)(e) to prohibit any conduct that

places a peace officer at risk of harm, it would have said so. See

Diaz, ¶ 18. It surely knew how to convey that concept — section

18-3-202(1)(c), the preceding statutory provision, makes it unlawful

for a person to engage in conduct “which creates a grave risk of

death to another person” and results in serious bodily injury. We

must assume that, by using different language in subsection (1)(e),

the legislature intended to proscribe different conduct. See

Robinson v. Colo. State Lottery Div.,

(Colo. 2008)

(“[T]he use of different terms signals an intent on the part of the

General Assembly to afford those terms different meanings.”); see

also People v. Delgado-Elizarras,

(Colo. App.

2005) (distinguishing between the crime of reckless endangerment

— which requires proof that the defendant engaged in conduct that

created a substantial risk of serious bodily injury — and the crime

of first degree assault of a peace officer — which requires proof that

the defendant threatened a peace officer with a deadly weapon and

intended serious bodily injury).

8 ¶ 21 We find unpersuasive the People’s argument that only by

reading the statutory provision to reach any act that puts an officer

at risk of harm can we implement the legislature’s intent to

criminalize “all manner of threats” made against police officers. By

its terms, section 18-3-202(1)(e) criminalizes all threats involving a

deadly weapon made against a police officer.

¶ 22 Likewise, we do not share the People’s concern that adopting a

definition of “threat” endorsed by the supreme court since 1971, see

Schott,

,

, will lead to absurd results.

According to the People, requiring proof of an expression of intent to

do harm would allow a defendant to escape liability under section

18-3-202(1)(e) so long as the officer did not perceive the threat. But

the sufficiency of proof of “threatening” conduct has never turned

on “what the victim saw or heard during the course of [the criminal]

incident.” People v. Shawn,

(Colo. App. 2004)

(quoting People v. Saltray,

(Colo. App. 1998))

(interpreting the definition of “threat” in the felony menacing

statute). Instead, the “proper focus is on the intent and conduct of

the actor.”

9 ¶ 23 Finally, we note that the People have not cited any case in any

jurisdiction — and we have not found one — that defines “threat” to

mean any act that places a person at risk of harm.

¶ 24 Accordingly, we conclude that to obtain a conviction for first

degree assault of a peace officer, the prosecution had to prove that,

by use of a deadly weapon, Denhartog expressed a purpose or

intent to cause injury or harm to the officer or the officer’s property.

C. The Evidence Does Not Show That Denhartog Threatened the Officer

¶ 25 The People contend that the evidence is sufficient to support a

conviction for first degree assault because the record shows that

“Denhartog put his Jeep in reverse and hit [the officer’s]

motorcycle,” which put the officer at risk of serious harm. The

People acknowledge, though, that Denhartog reversed the Jeep

without warning and that the officer did not see the Jeep coming

toward him before the impact. Thus, other than the act of hitting

the officer on his motorcycle, the People do not point to any conduct

by Denhartog that might constitute “threatening” the officer.

¶ 26 To the extent the People rely on the officer’s testimony that the

Jeep represented a “threat” to his safety, we disagree that the

10 testimony renders the evidence sufficient. For one thing, as we

have explained, the fact that the collision put the officer at risk is

not enough. And, as we have also explained, the victim’s perception

of the threat is not dispositive.

¶ 27 Thus, we conclude that the act of reversing into the officer, on

its own, is not sufficient to prove that Denhartog threatened a peace

officer.

¶ 28 We do not mean to suggest that there are no circumstances

under which a person could use a vehicle as a deadly weapon to

threaten a peace officer within the meaning of section 18-3-

202(1)(e). Nor is it necessary for us to make any pronouncements

about what kind of expressive conduct constitutes a statement or

declaration of intent to harm another person. In other words, we do

not foreclose an interpretation of “threaten” that includes nonverbal

communication of an intent to harm. We determine only that, in

this case, there was no expression of any kind of an intent to harm

the officer, but merely conduct that caused harm.

¶ 29 Accordingly, we determine that the evidence was insufficient to

sustain a conviction for first degree assault of a peace officer. We

therefore vacate the conviction and sentence and remand for the

11 court to enter a judgment of acquittal on the charge of first degree

assault. See People v. Cardenas,

(noting that

judgment of acquittal must be entered when the evidence is

insufficient to support the jury’s guilty verdict).

III. Admission of CRE 404(b) Evidence

¶ 30 Next, Denhartog contends that the court erred in admitting

evidence under CRE 404(b) of his prior assault of a peace officer.

We disagree.

A. The Prior Bad Act Evidence

¶ 31 The primary dispute at trial was whether Denhartog intended

to hit the officer with his Jeep or whether he intended only to hit

the motorcycle and disable it.

¶ 32 In accordance with Rule 404(b), the prosecution filed a pretrial

notice of intent to introduce evidence that, fifteen years earlier,

Denhartog had assaulted a police officer under similar

circumstances. According to the officer involved in the prior

incident, police attempted to stop Denhartog for a traffic offense.

He initially eluded police, but eventually stopped when he reached

the dead end of a parking lot. When the officer pulled his patrol car

behind Denhartog’s car, Denhartog suddenly reversed into the

12 officer’s car and then tried to flee the scene. The officer tackled him

to the ground and a physical altercation ensued, during which

Denhartog tried to disarm the officer. Two civilians passing by

helped the officer subdue Denhartog so that he could be arrested.

He later pleaded guilty to second degree assault of a peace officer.

¶ 33 Over Denhartog’s objection, the district court admitted the

evidence to show intent and absence of mistake or accident.

B. Standard of Review

¶ 34 Trial courts are afforded substantial discretion in deciding

whether to admit evidence of other acts. Yusem v. People,

(Colo. 2009). We review the trial court’s decision for an

abuse of discretion and will disturb its ruling only if it was

manifestly arbitrary, unreasonable, or unfair.

¶ 35 Because Denhartog preserved his claim, we review it under a

harmless error standard. Under this standard, even if we discern

an error, reversal is not required unless the error substantially

influenced the verdict or affected the fundamental fairness of the

trial. People v. Conyac,

.

C. The District Court Did Not Abuse Its Discretion in Admitting the Prior Act Evidence

13 ¶ 36 Evidence is not admissible to prove the character of a person

in order to show that he acted in conformity with that character on

a particular occasion. CRE 404(b). However, evidence of other

crimes, wrongs, or acts is admissible if used for purposes

independent of an inference of bad character.

¶ 37 In People v. Spoto,

(Colo. 1990), the

supreme court set forth a four-part test to determine the

admissibility of such evidence: (1) the evidence must relate to a

material fact; (2) the evidence must be logically relevant; (3) the

logical relevance of the evidence must be independent of the

prohibited inference that the defendant has a bad character; and (4)

the probative value of the evidence must not be substantially

outweighed by the danger of unfair prejudice.

¶ 38 Denhartog argues that evidence of his prior assault of a police

officer was not logically relevant to prove his intent to assault the

officer in this case. According to Denhartog, the jury should have

determined his intent based on whether the officer was on the

motorcycle at the time of the collision. And, he says, evidence that

he previously rammed into a different officer’s patrol vehicle did not

14 make it more or less likely that the officer was on his motorcycle

when he was hit.

¶ 39 But at trial, Denhartog argued that whether or not the officer

was on his motorcycle at the time of impact, he did not intend to hit

him but only to disable the motorcycle. If he did hit the officer,

Denhartog told the jury, it “was an accident.”

¶ 40 Thus, the evidence was relevant to establish Denhartog’s

intent to commit an assault. See Yusem,

(prior act

evidence is admissible to prove elements of the charged offense). To

the extent Denhartog claimed that any contact with the officer was

purely accidental, the evidence was relevant to show that he had

previously intentionally injured a police officer under similar

circumstances. See People v. Rowe,

(prior

act evidence is logically relevant when it rebuts defense of mistake).

¶ 41 For two reasons, we reject Denhartog’s argument that the

prior conduct was too dissimilar from the instant offense to be

probative of anything other than his propensity to assault police

officers.

¶ 42 First, the requirement that the evidence have relevance

independent of an inference of conformity with bad character does

15 not “demand the absence of the inference” entirely, but simply

means that the evidence cannot be relevant only to show a

propensity to commit crimes. People v. Snyder,

(Colo. 1994).

¶ 43 Second, the degree of similarity necessary to give the evidence

sufficient probative force for admission varies considerably

depending on the purpose for which it is offered. People v. Rath,

(Colo. 2002). For example, admission of evidence

of design or method, offered to prove the identity of the defendant

as the perpetrator, depends much more heavily on the similarity of

the crimes “than evidence offered merely to prove that the

defendant acted intentionally.”

¶ 44 Here, in both the prior incident and the instant case, when

Denhartog was pulled over for a traffic offense, he rammed his

vehicle into the police vehicle in an attempt to flee the scene and

avoid arrest. In the prior incident, when he could not flee in his

car, Denhartog engaged in a physical fight with the officer in an

effort to escape and intentionally caused the officer bodily injury.

¶ 45 We conclude that the incidents were similar enough that the

prior act evidence was admissible for the nonpropensity purpose of

16 rebutting Denhartog’s defense that his conduct was accidental

rather than intentional. See People v. Harris,

(prior act evidence was relevant for nonpropensity purpose of

negating the defendant’s theory that animals were malnourished

due to mistake or accident).

¶ 46 Finally, we conclude that the district court did not abuse its

discretion in balancing the CRE 403 factors of probative value and

prejudice. Because the balancing test favors admission of evidence,

a reviewing court must afford the evidence the maximum probative

value attributable by a reasonable jury and the minimum unfair

prejudice to be expected. Rath,

.

¶ 47 The central dispute here was whether Denhartog intended to

injure the officer when he reversed his Jeep into the officer’s

motorcycle. Thus, the prior act evidence, which was directly

relevant to the dispute, was highly probative. See People v.

McBride,

(Colo. App. 2009). And while prior act

evidence always carries a risk of unfair prejudice, it was within the

district court’s discretion to find this risk did not substantially

outweigh the probative value of the evidence.

17 ¶ 48 In assessing whether the trial court’s admission of the prior

act evidence was an abuse of discretion, we ask not whether we

would have reached a different result but, rather, whether the

district court’s decision fell within a range of reasonable options.

See People v. Ramos,

, aff’d,

. On

this record, we cannot say that the district court’s decision to admit

the evidence exceeded the bounds of rationally available choices

and was therefore manifestly arbitrary, unreasonable, or unfair.

IV. Prosecutorial Misconduct

¶ 49 Denhartog contends that prosecutorial misconduct during

closing argument requires reversal of his assault and eluding

convictions.

A. Preservation and Standard of Review

¶ 50 In reviewing a claim of prosecutorial misconduct, we use a

two-step analysis: first, we determine whether the prosecutor’s

questionable conduct was improper based on the totality of the

circumstances and, second, whether such actions warrant reversal

according to the proper standard of review. Wend v. People,

(Colo. 2010). If the defendant objected at trial, we

review for harmless error.

. Otherwise, we review for

18 plain error.

Prosecutorial misconduct constitutes plain error

only when there is a substantial likelihood that it affected the

verdict or that it deprived the defendant of a fair and impartial trial.

People v. Strock,

(Colo. App. 2010).

B. Alleged Prosecutorial Misconduct Does Not Warrant Reversal

¶ 51 First, Denhartog contends that the prosecutor “denigrated” the

defense by characterizing defense counsel’s arguments as a

“gigantic pot” in which he “threw in” “conspiracy theories” to

“immobilize” jurors.

¶ 52 A prosecutor may not “state or imply that defense counsel has

presented the defendant’s case in bad faith or otherwise make

remarks for the purpose of denigrating the defense.” People v.

Collins,

(Colo. App. 2010).

¶ 53 But here, the prosecutor’s comments “did nothing more than

suggest to the jury that the defendant’s theory as to why the jury

should find a reasonable doubt was so unlikely as to strain

credibility.”

(no error in prosecutor calling the defense’s theory

“absurd”).

¶ 54 In his closing argument, defense counsel argued that the

motorcycle officer “added in . . . [and] changed details to his story.”

19 Counsel implied that the police officers had lied about Denhartog

using a broken beer bottle to fend them off before his arrest. And

defense counsel also argued that police officers, rather than

Denhartog, might have caused damage to the apartment and its

belongings.

¶ 55 When viewed in context, then, the prosecutor’s comments

were a direct response to defense counsel’s argument that the

officers had conspired to lie and tamper with evidence. See People

v. Douglas,

(prosecutor’s comments that

directly responded to defense counsel’s arguments were not

prejudicial misconduct); see also People v. Liggett,

(Colo. App. 2005) (prosecutor may comment on the strength of the

defendant’s theory of the case), aff’d,

(Colo. 2006).

Accordingly, we discern no error.

¶ 56 Second, Denhartog says that the prosecutor “unfairly

exploited” the district court’s ruling excluding his hearsay

statements to first responders that he did not intend to run over the

officer.

¶ 57 During closing argument, the prosecutor asked the jury:

20 What did we hear significant evidence of during this trial? This was not a love tap. This was not, I want to disable this motorcycle. I want to knock over this motorcycle so I can get away.

¶ 58 True, as Denhartog notes, a prosecutor may not refer to facts

not in evidence, see People v. Walters,

(Colo.

App. 2006), which, we assume, would include facts excluded from

evidence. But the prosecutor did not ask the jury to speculate

about facts not in evidence; instead, he argued that the facts in

evidence showed Denhartog’s intent to hit the officer with his Jeep.

As the prosecutor stated immediately after the disputed statement,

“This is not a tap. This is a significant impact. There was a

significant amount of force.”

¶ 59 Thus, the prosecutor properly argued that the facts in

evidence established Denhartog’s intent to commit the crimes

charged. See Domingo-Gomez v. People,

(Colo.

2005) (“Final argument may properly include the facts in evidence

and any reasonable inferences drawn therefrom.”). We therefore

perceive no error.

¶ 60 Third, Denhartog argues that the prosecutor improperly

appealed to the jurors’ sympathies by asking them to imagine a “19-

21 year-old girl” on the motorcycle, rather than the police officer, at the

time of the collision.

¶ 61 While a prosecutor may employ rhetorical devices and engage

in oratorical embellishment and metaphorical nuance, he may not

thereby induce the jury to determine guilt on the basis of passion or

prejudice, attempt to inject irrelevant issues into the case, or

accomplish some other improper purpose. People v. Allee,

(Colo. App. 2003). And even accepting that “arguments

delivered in the heat of trial are not always perfectly scripted,”

McBride,

, and may be inartful or ambiguous, see

we discern no proper purpose for the prosecutor’s comments

and instead construe them as an appeal to the “emotionalism” of

the jurors, People v. Eckert,

(Colo. App. 1996).

¶ 62 But because defense counsel failed to object, we will not

reverse unless the misconduct amounts to plain error. To

constitute plain error, the misconduct must be flagrant or glaring or

tremendously improper, and so undermine the fundamental

fairness of the trial as to cast serious doubt on the reliability of the

judgment of conviction. People v. Rhea,

.

22 ¶ 63 We cannot conclude that the brief comments satisfied the high

standard for reversal. The focus of this portion of the prosecutor’s

argument was Denhartog’s conduct, and the weakness of his theory

of defense, not the attributes of the imaginary victim. Moreover, the

court instructed the jurors that they must not be influenced by

sympathy, bias, or prejudice in rendering their decision. We

presume that the jurors followed the court’s instructions, absent

evidence to the contrary. People v. Garcia,

.

Thus, we perceive no plain error.

¶ 64 Fourth, Denhartog contends that the prosecutor misstated the

evidence in recounting a witness’s testimony.

¶ 65 At trial, the witness testified that the officer was “straddling”

the motorcycle as the Jeep reversed, but “[b]y the time the Jeep hit

it, [the officer] was off the bike.” During closing argument, however,

the prosecutor claimed that the witness had “squarely put[] [the

officer] on that bike” at the time of the collision. Defense counsel

did not object to the comments.

¶ 66 A prosecutor may not misstate the evidence in closing

argument. People v. Nardine,

. Still, within the

context of the entire closing argument, the prosecutor’s single

23 inaccurate characterization of the witness’s somewhat ambiguous

testimony was a small part of the summation. It certainly did not

“predominate over those parts of the argument that appropriately

address[ed] the evidence and the prosecution theory of the case.”

Eckert,

. The prosecutor’s single misstatement does

not cause us to question the reliability of the judgment of conviction

and we therefore discern no plain error.

¶ 67 Finally, we are not persuaded that, cumulatively, the two

instances of prosecutorial misconduct warrant reversal of

Denhartog’s assault and eluding convictions.

¶ 68 As an initial matter, the instances of misconduct related only

to Denhartog’s intent to commit assault; thus, we would not, under

any circumstances, reverse the eluding conviction. But more to the

point, neither instance of misconduct was egregious. And even

considered together, the brief improper comments do not

undermine the reliability of the verdict, particularly in light of the

extensive evidence of Denhartog’s intent to injure the officer. See

People v. Manyik,

(no substantial likelihood that

prosecutorial misconduct affected the verdict when evidence of the

defendant’s guilt was strong). Regardless of whether the officer was

24 on the motorcycle or in the process of dismounting at the precise

moment that Denhartog rammed into the bike, a reasonable jury

could certainly have inferred from his conduct that he intended to

injure the officer.

V. Post-Trial Errors

¶ 69 Denhartog identifies three alleged errors committed at the

sentencing stage of the proceedings. First, he says that the court

was required to run his sentence for first degree assault and his

sentence for second degree assault concurrently. Next, he says his

two convictions for second degree assault merge and one conviction

must be vacated. And finally, he argues that, because first degree

criminal trespass is a lesser included offense of second degree

burglary, his trespass conviction must merge into the burglary

conviction.

A. First Degree Assault Sentence

¶ 70 We have determined that the evidence was insufficient to

support Denhartog’s conviction for first degree assault, and we have

directed the district court, on remand, to enter a judgment of

acquittal on this count. Accordingly, Denhartog’s challenge to the

25 sentence is moot, and we will not review it. Trinidad Sch. Dist. No. 1

v. Lopez,

(Colo. 1998).

B. Multiplicity of Second Degree Assault Convictions

¶ 71 Denhartog contends, the People concede, and we agree that

his two convictions for second degree assault must merge for

multiplicity.

¶ 72 Denhartog was convicted of two counts of second degree

assault under section 18-3-203: one for causing bodily injury with a

deadly weapon (subsection (1)(b)) and one for causing bodily injury

to prevent a peace officer from performing a lawful duty (subsection

(1)(c)). And the parties agree that both convictions were based on

Denhartog’s sudden reversal of the Jeep into the motorcycle officer.

¶ 73 Whether convictions for different offenses merge is a question

of law that we review de novo. Page v. People,

.

¶ 74 Multiplicity may arise “where a defendant is charged with and

convicted of multiple counts under a single criminal statute, and

the statute does not create more than one offense but, rather,

provides for alternative ways of committing the same offense.”

People v. Barry,

. When a court enters multiple

convictions under such a scheme, it violates a defendant’s right

26 against double jeopardy. Woelhaf v. People,

(Colo. 2005); see also People v. Wood,

.

¶ 75 By entering convictions under subsections (1)(b) and (1)(c) of

the second degree assault statute, the district court violated

Denhartog’s right to be free from double jeopardy. See People v.

Anderson,

(first degree assault statute

established “a single offense . . . with alternative means of

commission”) (cert. granted Nov. 21, 2016). Therefore, we remand

the case to the district court to merge the two convictions. To

maximize the effect of the jury’s verdict, see People v. Glover,

(Colo. 1995), the trial court should vacate the

conviction entered under section 18-3-203(1)(c) and retain the

conviction entered under section 18-3-203(1)(b), see People v. Delci,

(Colo. App. 2004) (vacating the multiplicitous

conviction that provides a less severe penalty).

C. Lesser Included Offense

¶ 76 Denhartog was convicted of first degree criminal trespass and

second degree burglary. He contends that first degree criminal

trespass is a lesser included offense of second degree burglary and

therefore these convictions must merge. We disagree.

27 ¶ 77 A defendant may not be convicted of two offenses based on the

same conduct if “[o]ne offense is included in the other . . . .” § 18-1-

408(1)(a), C.R.S. 2018; see also Reyna-Abarca v. People,

. But the supreme court has expressly held that first

degree criminal trespass is not a lesser included offense of second

degree burglary. People v. Garcia,

(Colo. 1997).

¶ 78 Denhartog points out that the supreme court’s more recent

case law, in which it clarified the standard for identifying a lesser

included offense, appears to call into question Garcia’s continued

viability. See People v. Rock,

, ¶ 19 n.5. Still, the

supreme court “alone can overrule [its] prior precedents concerning

matters of state law.” People v. Novotny,

. Thus,

if a precedent of the supreme court “has direct application in a

case, yet appears to rest on reasons rejected in some other line of

decisions,” the court of appeals “should follow the case which

directly controls,” leaving to the supreme court “the prerogative of

overruling its own decisions.” Rodriguez de Quijas v. Shearson/Am.

Express, Inc.,

(1989).

28 ¶ 79 We therefore must reject Denhartog’s claim that first degree

criminal trespass is a lesser included offense of second degree

burglary.

VI. Conclusion

¶ 80 We remand the case for the district court to (1) vacate

Denhartog’s conviction and sentence for first degree assault and

entry of a judgment of acquittal on that count; (2) merge

Denhartog’s convictions for second degree assault and vacate the

conviction entered under section 18-3-203(1)(c); and (3) resentence

Denhartog. We otherwise affirm the judgment.

JUDGE HAWTHORNE and JUDGE FOX concur.

29