Defend Menacing Charges

In the summer of 2021, a high-ranking Colorado judge allegedly waved an assault-style rifle in the air to threaten someone. Months later, Mark Thompson, who presided over Colorado’s Fifth Judicial District, was charged with felony menacing. A menacing charge can be a felony or a misdemeanor depending on the circumstances during the incident. And being convicted of menacing can result in time behind bars.

This article aims to explain the crime of menacing in Colorado, the penalties associated with it, and how you and your attorney might be able to defend a menacing charge.

Talk to a Colorado Menacing Criminal Defense Attorney

You are strongly encouraged to speak with a criminal defense attorney if you face a menacing charge. Our Criminal Defense Team is comprised of experienced attorneys who have successfully defended countless individuals charged with a crime. Call 303-688-0944 to set up a case assessment or click here to schedule the appointment online.

How Colorado Defines Felony Menacing

In Colorado, menacing is defined as knowingly placing or attempting to place someone in fear of imminent serious bodily injury using threats or physical action. Menacing is a class 3 misdemeanor.

The crime becomes a class 5 felony if:

• a deadly weapon is used during the incident
• someone wields an object that the victim reasonably believes is a deadly weapon
• someone verbally communicates that they’re armed with a deadly weapon
  C.R.S. 18-3-206

Editor’s Note: Colorado state legislators voted to change how menacing is defined and classified. Beginning March 1, 2022, menacing becomes a class 1 misdemeanor, which is the most serious misdemeanor. Felony menacing remains a class 5 felony, but how it is defined changes. Under the amended language, felony menacing is committed “by the use of a firearm, knife, bludgeon, simulated firearm, knife, or bludgeon.”

Common Menacing Scenarios

Disagreements and road rage are two frequent incidents that can easily escalate to menacing. You may have never thought that telling an obnoxious individual that you’re going to beat them to a pulp was a crime, but it could result in a menacing charge.

Misdemeanor Menacing Examples

• verbally threatening to hurt someone
• physically moving at someone like you’re going to punch them

Felony Menacing Examples

• being involved in a road rage incident during which a gun or other weapon is flashed or pointed at the other driver
• threatening someone with a knife, gun, or another object that could be used as a deadly weapon, like a baseball bat

What it Means to Knowingly Place Someone in Fear of Imminent Harm

It’s important to understand what knowingly and imminent mean in the context of a menacing charge.

Let’s begin with imminent. Colorado law does not specifically define imminent. But generally speaking, imminent means something that is about to happen – not something that will occur later.

Now, knowingly essentially means that you are aware of your actions and the possible outcome of them.

Here’s how state law defines knowingly:

“A person acts “knowingly” or “willfully” … when he is aware that his conduct is of such nature or that such circumstance exists. A person acts “knowingly” or “willfully”, with respect to a result of his conduct, when he is aware that his conduct is practically certain to cause the result.” C.R.S. 18-1-501(6)

Does it Matter if the Victim Was Actually Scared?

No, it does not matter if the victim was actually afraid you would harm them.

Menacing, whether charged as a misdemeanor or a felony, is a general crime of intent. That means the prosecutor only needs to prove that you meant to carry out the act – not that you intended the end result. It also means that you can be convicted of menacing even if the victim was never afraid.

So, again, the prosecutor’s focus will be on proving your intent – not on the victim’s emotions at the time of the incident.

What Colorado Courts Say About Proving Fear in Menacing Cases

Colorado courts have consistently stated that it is not essential to prove a victim was fearful to convict someone of felony menacing.

In 1998, a man appealed his felony menacing conviction to the Colorado Court of Appeals. In People v. Saltray, 969 P.2d 729, the defendant, Robert G. Saltray, claimed that there was insufficient evidence to support his conviction because state prosecutors failed to prove the victim was aware Saltray had threatened him.

Facts About the Saltray Incident:

Saltray, the victim’s neighbor, had pointed a gun at and made verbal threats toward the victim as he got in his car. The victim testified he never saw the gun or heard the threat. However, a bystander witnessed Saltray point a revolver at the victim and say, “If he comes any closer, I’m going to let him have one.”  The bystander also testified Saltray had his finger on the gun’s trigger during the incident.

Saltray argued that felony menacing requires the victim to be aware of the threat. The court disagreed.

The court of appeals noted that “[the victim] would have seen the weapon had he happened to turn around and face the defendant.”

The court stated if there is evidence that a jury could reasonably find that Saltray knew his actions would put the victim in imminent fear, then there is intent – regardless of the victim’s awareness of the threat.

The appeals court also pointed to a case heard by the Colorado Supreme Court in which the high court held “it [is] unnecessary for the prosecution to prove actual subjective fear on the part of the victim.”

As a result, the court of appeals affirmed Saltray’s felony menacing conviction. Saltray asked the Colorado Supreme Court to review his case, but it declined.

Other Facts About a Menacing Charge

If a firearm is used in the incident, it does NOT have to be a real gun, a loaded one, or ever be pointed at the victim for you to be charged with felony menacing.

A deadly weapon does not have to be an object like a gun or knife. If you bite someone and say you have a deadly disease, like AIDS, you could be charged with felony menacing.

In People v. Shawn, 107 P.3d 1033, The defendant, who had scratched and told the victim he was HIV positive, argued his statement was not a threat. The Colorado Court of Appeals upheld the felony menacing conviction.

“… we conclude the evidence that defendant stated he was HIV positive, pinched and scratched the victim, and attempted to bite him was sufficient to show defendant ‘used’ his purported HIV status in a manner that could cause the victim to fear for his safety.”

Sentence for Menacing Convictions

Felony Menacing

Individuals convicted of felony menacing face one to three years in prison with two years of parole. The fines for this crime range from $1,000 to $100,000.

In October 2021 the chief judge that presided over Colorado’s Fifth Judicial District was charged with felony menacing. Mark Thompson was accused of threatening someone with an AR-15-style rifle during the summer. Thompson is set to appear in court on December 17, 2021. If he’s convicted, he faces prison time, fines, and being temporarily restricted from practicing law or serving as a judge until after any sentence or probation is completed.

“Every person convicted of a felony, whether defined as such within or outside this code, shall be disqualified from holding any office of honor, trust, or profit under the laws of this state or from practicing as an attorney in any of the courts of this state during the actual time of confinement or commitment to imprisonment or release from actual confinement on conditions of probation. Upon his or her discharge after completion of service of his or her sentence or after service under probation, the right to hold any office of honor, trust, or profit shall be restored, except as provided in section 4 of article XII of the state constitution.” C.R.S. 18-1.3-401

Misdemeanor Menacing

Currently, someone convicted of misdemeanor menacing can be sentenced up to six months in jail and be ordered to pay fines from $50 to $750.

When misdemeanor menacing increases to a class 1 misdemeanor in March 2022, the potential jail term is between six and 18 months. Fines for a class 1 misdemeanor are between $500 and $5,000.

Domestic Violence and Menacing

In Colorado, domestic violence is not a separate charge. Instead, it’s considered a sentencing enhancer. That means you face additional penalties if you are convicted of a crime that also involves an act of domestic violence.

Menacing is one of a handful of crimes that often includes a domestic violence enhancement.

So, what does this potentially mean for your case?

Well, if you’re charged with menacing that has a domestic violence enhancement, the court will file a protection order against you while your charges are pending, though protection orders can be extended. Also, Colorado law requires that people suspected of domestic violence be arrested.

If you’re convicted, you won’t be allowed to possess any firearms or ammunition. And you’ll be required to turn over any that you have. You’ll also be required to complete domestic violence classes. C.R.S. 18-6-801(8)(a)(I)

How Past Criminal Convictions Can Affect a Menacing Charge

Past convictions have the potential to increase a misdemeanor menacing charge to a felony charge.

If you have at least three prior convictions that all include domestic violence enhancers, any subsequent misdemeanor charges – like menacing – that involve domestic violence are increased to a class 5 felony. C.R.S. 18-6-801(7)(a)

What’s the Difference Between Menacing with a Deadly Weapon and Disorderly Conduct with a Deadly Weapon?

One of the key differences is one is a felony and the other is a misdemeanor. As you’ve read in this article, menacing with a deadly weapon results in a felony charge. On the other hand, disorderly conduct with a deadly weapon is a misdemeanor. C.R.S. 18-9-106

Disorderly conduct with a deadly weapon includes:

Discharging a firearm in public. This act is a class 3 misdemeanor. There are exceptions, however, including lawful target practice, for instance.

“Not being a peace officer, discharges a firearm in a public place except when engaged in lawful target practice or hunting or the ritual discharge of blank ammunition cartridges as an attendee at a funeral for a deceased person who was a veteran of the armed forces of the United States” C.R.S. 18-9-106(1)(e)

Brandishing a deadly weapon in public in an effort to cause alarm is a class 2 misdemeanor.

“Not being a peace officer, displays a deadly weapon, displays any article used or fashioned in a manner to cause a person to reasonably believe that the article is a deadly weapon, or represents verbally or otherwise that he or she is armed with a deadly weapon in a public place in a manner calculated to alarm.” C.R.S. 18-9-106(1)(f)

Editor’s Note:

Effective March 1, 2022, discharging a firearm in public becomes a class 1 misdemeanor. Brandishing a deadly weapon remains a class 2 misdemeanor, but the new language replaces “deadly weapon” with “real or simulated firearm.” It also changes “in a manner calculated to alarm” to “and does alarm another person.”

Defending a Felony Menacing Charge

A felony menacing charge can be difficult to defend, but like all other criminal charges, nothing is impossible.

Self Defense

One of the best defenses to a felony menacing charge is claiming self-defense. Depending on the circumstances at the time of the alleged incident, you may be able to claim self-defense. For instance, were you fearful for your life, and, therefore, you acted in a way to protect yourself or someone else?

Statute of Limitations

Another possible defense is whether the statute of limitations has lapsed. Prosecutors have a limited time to commence criminal proceedings for many crimes, including a menacing charge.

The statute of limitations for felony menacing is three years, and it’s eighteen months for misdemeanor menacing. C.R.S. 16-5-401

Talk to a Colorado Menacing Criminal Defense Attorney

You are strongly encouraged to speak with a criminal defense attorney if you’ve been charged with a felony or a misdemeanor menacing. Our Criminal Defense Team is comprised of experienced attorneys who have successfully defended countless individuals charged with a crime. Call 303-688-0944 to set up a case assessment or click here to schedule the appointment online.