v. Denhartog

     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