The Supreme Court has granted a Petition for Writ of Certiorari on Court of Appeals Case No. 14CA1392 with Petitioner Lance Webster Margerum versus the Respondent the People of the State of Colorado.
The issue is whether a single physical act of assault without any additional corroborating evidence such as additional physical actions or verbal threats can be enough to support a conviction for both assault and menacing.
When looking at the definition of “assault” in Colorado we see that a person commits the crime if “the person knowingly or recklessly causes bodily injury to another person or with criminal negligence the person causes bodily injury to another person by means of a deadly weapon.”
The definition of “menacing” in Colorado is defined as a person commits the crime 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.”
The distinction here is that one crime requires an actual bodily injury, while the other crime does not. Assault requires that you injure someone, menacing requires only that the person is fearful of a potential impending serious bodily injury. A factual scenario that describes the differences would be: if someone punches you, they commit assault, if someone acts as if they are going to punch you, swings at you, but was attempting to only scare you and doesn’t make contact, that would be menacing.
So, if you get punched, could that be assault because of the injury, but also menacing because you were fearful of the punch before it happened? Common sense seems to indicate you were assaulted, or you were menaced, but not both. That once the physical contact occurred, you were no longer menaced, but instead assaulted.
Thus, we end up with a situation where the same act could have potentially two different mental states at the exact same time. Did you know your actions were intended to cause fear of imminent serious bodily injury, or did you know that your actions were intended to cause serious bodily injury? Because you could have only intended on one end result, such as causing injury or causing fear of an injury, you would not be able to have a mental state associated with the other crime.