Peo v. Rojas

22CA1589 Peo v Rojas 05-22-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 22CA1589
Weld County District Court No. 21CR876
Honorable Marcello A. Kopcow, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Theodore Anthony Rojas II,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division A
Opinion by JUDGE BROWN
Dunn and Schock, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced May 22, 2025

Philip J. Weiser, Attorney General, Katharine Gillespie, Senior Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Daniel J. Sequeira, Deputy
State Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 Defendant, Theodore Anthony Rojas II, appeals the judgment

of conviction entered on a jury verdict finding him guilty of two

counts of felony menacing. Rojas contends that (1) insufficient

evidence supports these convictions; (2) the district court

incorrectly instructed the jury on the definition of “threat”; (3) the

prosecutor committed misconduct; and (4) the court erred by

identifying the weapon used to menace as a “tomahawk.” We

affirm.

I. Background

¶2 The evidence presented at a three-day trial allowed the jury to

find the following facts.

¶3 Rojas and his cousins, Ernest and Felix Rojas,1 disputed

which of them owned certain real property located in Weld County.

In November 2020, Ernest evicted Rojas from the property and

obtained a protection order against him.

¶4 One day in April 2021, Felix arrived at the property and saw

Rojas attempting to pull a camper onto it. Rojas had also moved

his things into a building on the property. Felix called 911 to report

1 Because they share a last name with Rojas, we refer to Ernest and

Felix by their first names and mean no disrespect by doing so.

1
that Rojas was trespassing. While Felix was on the phone with the

911 operator, Rojas went inside the building and came back out

with a firearm on his hip.2

¶5 Deputies Christopher Dalzell and Alex Fischer responded to

the call, and their body cameras captured their interaction with

Rojas. At one point after the deputies told Rojas he had to leave the

property, Rojas picked up a hatchet3 and a machete. He walked

toward the deputies with the hatchet raised to his shoulder while

making statements like, “This is my house, this is where I live, this

is my shit, and if you shoot me, you shoot me.”

¶6 For Rojas’ conduct that day, the People charged him with

eleven crimes, including, as relevant here, two counts of felony

menacing — one count each for Deputies Dalzell and Fischer. The

jury found Rojas guilty of both counts of felony menacing, and the

2 Deputies later learned that the firearm was an unloaded BB gun.
3 Rojas argues that the axe-like weapon is a “hatchet,” which he

says has a smaller head and a shorter, thicker handle, rather than
a “tomahawk,” which he says has a head with a protrusion and a
longer, thinner handle. The prosecution referred to the weapon as a
tomahawk throughout trial. We will refer to the weapon as a
hatchet unless we are quoting the record.

2
court sentenced him to two concurrent six-year sentences in

community corrections.

II. Sufficiency of the Evidence

¶7 Rojas contends that the prosecution presented insufficient

evidence to sustain his felony menacing convictions. We are not

persuaded.

A. Standard of Review and Applicable Law

¶8 “We review the record de novo to determine whether the

evidence before the jury was sufficient both in quantity and quality

to sustain the defendant’s conviction.” Clark v. People, 232 P.3d

1287, 1291 (Colo. 2010). We consider “whether the relevant

evidence, both direct and circumstantial, 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 mind that

the defendant is guilty of the charge beyond a reasonable doubt.”

Id. (quoting People v. Bennett, 515 P.2d 466, 469 (1973)).

¶9 In doing so, we give the prosecution the benefit of every

reasonable inference that may be fairly drawn from the evidence.

See id. at 1292; People v. Gonzales, 666 P.2d 123, 128 (Colo. 1983).

We may not reweigh the evidence or reassess the credibility of the

3
witnesses. People v. Sharp, 104 P.3d 252, 256 (Colo. App. 2004).

Nor may we “act as a thirteenth juror” and set aside a verdict

because we might have drawn a different conclusion had we been

the trier of fact. People v. McIntier, 134 P.3d 467, 471 (Colo. App.

2005).

B. The Prosecution Presented Sufficient Evidence to Support the
Felony Menacing Convictions

¶ 10 “A person commits the crime of menacing 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.”

§ 18-3-206(1), C.R.S. 2021. At the time of Rojas’ offense, menacing

was a class 5 felony if committed “[b]y the use of a deadly weapon.”

§ 18-3-206(1)(a), C.R.S. 2021.

¶ 11 Rojas contends that the prosecution failed to prove that he

(1) made a “threat” or took “physical action” rising to the level of a

threat; (2) “knowingly” placed or attempted to place the deputies in

fear of serious bodily injury; or (3) “used” a deadly weapon. Viewing

the evidence in the light most favorable to the prosecution, we reject

these contentions.

4
1. Additional Background

¶ 12 The prosecution’s theory of the case was that Rojas menaced

the deputies with the hatchet. At trial, the prosecution presented

the bodycam footage of Deputies Dalzell and Fischer, which showed

the following:

• When the deputies contacted him, Rojas was wearing a

“nylon-styled law enforcement duty belt” with a firearm on

his hip.

• Throughout the encounter, Rojas made statements to the

deputies such as, “If we want to get it on, we can get it on”;

“I’m not afraid of anyone or anything”; “I’m down to die for

the shit that I believe in”; “Nobody is losing their life”; and

“We can see who is the better shot.”

• Rojas picked up some plastic tubing off the ground, started

swinging it around, and refused the deputy’s initial request

to drop it. Rojas then walked over to a tree stump, picked

up the hatchet and machete, and said, “This is what you

don’t want me to pick up.”

• When the deputies told Rojas to put down the weapons,

Rojas threw the machete at the stump, swung the hatchet

5
at the stump, and told the deputies, “I am trying to save

your fucking life.” Rojas then told the deputies, “I could

pick up whatever I want to, I’m not going to hurt you, but

I’m not going to let you handcuff me either.”

• Several minutes later, when Deputy Fischer told Rojas he

needed to leave the property, Rojas responded, “I’m not

leaving.” Rojas returned to the tree stump, picked up the

hatchet again, raised it to his shoulder, and began walking

toward the deputies while saying, “This is my house, this is

where I live, this is my shit, and if you shoot me, you shoot

me.” Deputy Fischer pulled out his firearm, backed away

from Rojas, and said, “Don’t do anything crazy.” Rojas then

put the hatchet down on a table.

¶ 13 Deputy Dalzell testified as follows:

• He moved back and repositioned himself when Rojas picked

up the hatchet because Rojas could throw the hatchet at

that distance.

• Rojas’ repeated statements that he did not want to hurt the

deputies did not lower his concern, while Rojas’ other

statements and actions “put [him] onto a higher alert.”

6
• He felt threatened by “[t]he act of [Rojas] continuously

picking [the weapons] up after we had asked him to not and

then, just the statements he was making of, you know, you

shouldn’t be afraid of referencing the plastic tubes and

then, saying this is what you should be afraid of and

ultimately, picking up the tomahawk and the machete from

the stump.”

¶ 14 Deputy Fischer testified as follows:

• Rojas’ statements made him concerned that Rojas was

going to draw his gun or physically engage with the

deputies.

• After Rojas said he was not going to let the deputies

handcuff him, the deputy was concerned Rojas would

become combative.

• He drew his weapon because he was concerned Rojas would

use the hatchet against the deputies if they tried to remove

him from the property.

• Rojas held the hatchet “positioned in a way that he could

have easily hit us with it and was walking in our direction.”

He felt threatened by how Rojas held the hatchet, but the

7
machete in Rojas’ other hand did not concern him as much

because it was pointed down.

2. “Threat”

¶ 15 Rojas contends that the prosecution presented insufficient

evidence to establish he threatened the deputies. We are not

persuaded.

¶ 16 To prove that a person made a threat, the prosecution must

prove that the person “expressed a purpose or intent to cause injury

or harm” to another person or their property. People v. Denhartog,

2019 COA 23, ¶¶ 15-24; see also People v. Shawn, 107 P.3d 1033,

1035 (Colo. App. 2004) (“A threat is a statement of purpose or

intent to cause injury or harm to another person.”). A threat need

not be verbal; it may be made through nonverbal, expressive

conduct that is intended to communicate an intent to harm.

Denhartog, ¶ 28.

¶ 17 Here, Rojas refused the deputies’ requests to leave the

property, repeatedly indicated he was ready to be physically

combative with the deputies or to die for his property, told the

deputies he was not leaving the property, and then picked up the

hatchet and machete and advanced toward the deputies with the

8
hatchet raised at his shoulder. We conclude that Rojas’ statements

and physical gestures were collectively sufficient for a reasonable

jury to find beyond a reasonable doubt that Rojas expressed a

purpose or intent to cause injury or harm to the deputies. See

§ 18-3-206, C.R.S. 2021; Denhartog, ¶¶ 24, 28.

¶ 18 We are not persuaded otherwise by Rojas’ argument that he

did not threaten the deputies because he repeatedly told them that

he did not wish to harm them. The bodycam footage shows that

Rojas’ statements purportedly expressing a lack of intent to harm —

“I’m not trying to hurt you” and “I don’t want anybody to get hurt”

— were contradicted by Rojas’ other statements and actions. The

jury viewed the bodycam footage and heard the witnesses’

testimony, and its verdict reflects that it discounted Rojas’

statements that he was not trying to hurt the deputies and credited

Rojas’ threatening statements and actions. It was well within the

jury’s province to do so. See People v. Pitts, 13 P.3d 1218, 1221

(Colo. 2000) (“It is the function of the [trier of fact], and not the

reviewing court, to weigh evidence and determine the credibility of

the witnesses.”); People v. Kessler, 2018 COA 60, ¶ 12 (“[A] fact

finder is not required to accept or reject a witness’s testimony in its

9
entirety; it may believe all, part, or none of a witness’s

testimony. . . .”).

¶ 19 Nor are we persuaded by Rojas’ argument that his actions with

the hatchet could not express an intent to injure or harm. He relies

on Denhartog, ¶ 28, to argue that physical action alone cannot

constitute a threat. But we do not read Denhartog so narrowly. In

that case, a division of this court held that evidence the defendant

had suddenly and without warning reversed his car into an officer’s

motorcycle during a traffic stop was insufficient to prove he had

threatened the officer. Id. at ¶ 29. It reasoned that “there was no

expression of any kind of an intent to harm the officer” beyond the

conduct that actually caused harm — hitting the officer with his

car. Id. at ¶¶ 25-28. It rejected the People’s assertion that any act

that placed a person at risk constituted a threat. Id. at ¶ 23. But

the Denhartog division did not hold that a threat must be conveyed

verbally; on the contrary, the division explained that its holding did

not “foreclose an interpretation of ‘threaten’ that includes nonverbal

communication of an intent to harm.” Id. at ¶ 28.

¶ 20 In any event, unlike the defendant in Denhartog, Rojas made

verbal statements while engaging in physical action that, taken

10
together, could reasonably be interpreted as threatening the

deputies. Viewing the evidence in the light most favorable to the

prosecution, we conclude the evidence was sufficient to establish

that Rojas menaced the deputies by “threat or physical action.”

§ 18-3-206, C.R.S. 2021; see Clark, 232 P.3d at 1291.

3. “Knowingly”

¶ 21 Rojas also contends that the prosecution failed to establish he

knowingly placed or attempted to place the deputies in fear of

imminent serious bodily injury. We are not persuaded.

¶ 22 Felony menacing is a general intent crime that requires the

defendant to act “knowingly” — that is, the defendant must be

“aware that his conduct is practically certain to cause the result.”

§ 18-1-501(6), C.R.S. 2024; see also People v. Crump, 769 P.2d 496,

498 (Colo. 1989). Direct evidence of the defendant’s awareness is

not necessary; instead, “the defendant’s subjective awareness may

be inferred from his conduct and the surrounding circumstances.”

People v. Manzanares, 942 P.2d 1235, 1239 (Colo. App. 1996),

abrogated on other grounds by Riley v. People, 266 P.3d 1089, 1094

(Colo. 2011). And “what the victim saw or heard, and how the

victim reacted, are relevant considerations in determining whether

11
[the] defendant had the requisite intent to place the victim in fear.”

Id.

¶ 23 Considering Rojas’ verbal threats, his physical actions, and

the deputies’ reactions, we conclude that there was sufficient

evidence for a reasonable jury to find that Rojas was “aware that his

conduct [wa]s practically certain to cause” the deputies to be afraid.

§ 18-1-501(6); see Manzanares, 942 P.2d at 1239.

¶ 24 But Rojas argues that he could not have “knowingly” menaced

the deputies because (1) he recanted any threats he may have

made, and (2) the tone of the encounter was not threatening.

Again, the jury viewed the bodycam footage, weighed the evidence,

and reached a different conclusion about Rojas’ conflicting

statements and the tone of the encounter. See Sharp, 104 P.3d at

256. Rojas effectively asks us to reweigh the evidence, which we

will not do. See id.

¶ 25 Viewing the evidence in the light most favorable to the

prosecution, we conclude that the prosecution presented sufficient

evidence to establish the “knowingly” element of menacing.

§ 18-3-206, C.R.S. 2021; see Clark, 232 P.3d at 1291.

12
4. “Use” of a “Deadly Weapon”

¶ 26 Rojas next contends the prosecution failed to present

sufficient evidence that he used a deadly weapon. He argues that

the hatchet was a tool and that simply holding it did not amount to

using a deadly weapon. We are not persuaded.

¶ 27 A deadly weapon includes “[a] knife, bludgeon, or any other

weapon, device, [or] instrument . . . whether animate or inanimate,

that, in the manner it is used or intended to be used, is capable of

producing death or serious bodily injury.” § 18-1-901(3)(e)(II),

C.R.S. 2021. At the time of Rojas’ offense, serious bodily injury was

defined as “bodily injury which, either at the time of the actual

injury or at a later time, involves a substantial risk of death, a

substantial risk of serious permanent disfigurement, a substantial

risk of protracted loss or impairment of the function of any part or

organ of the body, or breaks, fractures, or burns of the second or

third degree.” § 18-1-901(3)(p), C.R.S. 2021. In the context of

menacing, “use of a deadly weapon” “includes the act of holding a

weapon in the presence of another in a manner that is practically

certain to cause the other person to fear for [their] safety.” People v.

Segura, 923 P.2d 266, 269 (Colo. App. 1995).

13
¶ 28 Regardless of whether the hatchet was a tool or not, it could

be used to cause death or serious bodily injury. And case law

makes clear that merely holding a deadly weapon can constitute

“use” of that weapon depending on the circumstances. See id.; see

also People v. Dist. Ct., 926 P.2d 567, 571 (Colo. 1996) (“[T]he

phrase ‘use of a deadly weapon’ is broad enough to include the act

of holding a weapon in the presence of another in a manner that

causes the other person to fear for his safety, even if the weapon is

not pointed at the other person.”). Here, Rojas “simply holding” the

hatchet at his shoulder — a position from which he easily could

have thrown or swung it at the deputies — occurred in the context

of him walking toward the deputies and making threatening

statements. Rojas did not have to point the hatchet at the deputies

or gesture with it to “use” it to menace them. See Dist. Ct., 926

P.2d at 571; Segura, 923 P.2d at 269.

¶ 29 Viewing the evidence collectively and in the light most

favorable to the prosecution, we conclude that the prosecution

presented sufficient evidence to prove that Rojas menaced the

deputies “[b]y the use of a deadly weapon.” § 18-3-206(1)(a), C.R.S.

2021; see Clark, 232 P.3d at 1291.

14
III. Jury Instruction

¶ 30 Rojas contends that the district court erred by declining his

proposed jury instruction on the definition of “threatened” or

“threat.” We disagree.

A. Standard of Review

¶ 31 “We review a trial court’s decision whether to give a particular

jury instruction for an abuse of discretion.” People v. Cline, 2022

COA 135, ¶ 32. A court abuses its discretion when its ruling

results in a misstatement of the law or is manifestly arbitrary,

unreasonable, or unfair. People in Interest of J.G., 2016 CO 39,

¶ 33. We review de novo whether the jury instructions, considered

as a whole, correctly state the law. Id.; McDonald v. People, 2021

CO 64, ¶ 54. So long as the court correctly instructs the jury on

the applicable law, it “has broad discretion to determine the form

and style of jury instructions.” McDonald, ¶ 54 (quoting Day v.

Johnson, 255 P.3d 1064, 1067 (Colo. 2011)).

B. Additional Background

¶ 32 During the jury instruction conference, defense counsel asked

the district court to instruct the jury that “threaten” meant that

“the Defendant expressed a purpose or an intent to cause serious

15
bodily injury to the Officer or the Officer’s property.” (Emphasis

added.) Counsel reasoned that the menacing charges required

proof that Rojas placed or attempted to place the deputies in fear of

imminent serious bodily injury, so the definition of “threaten”

should include reference to serious bodily injury.

¶ 33 The court declined to include “serious bodily injury” in the

definition of “threatened” or “threat” and instead instructed the jury

that those terms meant “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.” The court also

instructed the jury as to the elements of menacing:

1. That Theordore Anthony Rojas II,

2. in the State of Colorado, at or about the
date and place charged,

3. knowingly,

4. by any threat or physical action,

5. placed or attempted to place another person
in fear of imminent serious bodily injury.

¶ 34 And the court instructed the jury on the definition of “serious

bodily injury” consistent with the statute. See supra Part II.B.4 and

infra Part III.C.

16
C. The District Court Did Not Err by Denying Rojas’ Tendered
Instruction

¶ 35 Rojas contends that the district court erred by denying his

tendered instruction on the definition of “threatened” or “threat,”

arguing that the instruction the court gave lowered the

prosecution’s burden of proof.

¶ 36 To the extent Rojas argues that the court erred by instructing

the jury that a “threat” requires an expression of an intent or

purpose to cause “bodily injury,” we reject that argument because

the court gave no such instruction. We acknowledge that the court

said during the jury instruction conference that it would instruct

the jury that the definition of “threatened” or “threat” “means a

statement or declaration of purpose or intent to cause bodily injury

or harm of the person, property or rights of another by the

commission of an unlawful act.” (Emphasis added.) But the

instruction the court actually gave the jury did not use the term

“bodily injury.”

¶ 37 To the extent Rojas contends that the court nonetheless

should have instructed the jury that a “threat” requires an

17
expression of intent or purpose to cause “serious bodily injury,” we

perceive no error.

¶ 38 There is no statutory definition of “threat” for purposes of

felony menacing. Nor is there a pattern jury instruction defining

the term. But the Colorado Supreme Court has held, in this

context, that “[a] threat is a statement 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. Hines, 780 P.2d 556, 559

(Colo. 1989).

¶ 39 The district court used the supreme court’s definition of

“threat” in its jury instruction. It correctly instructed the jury on

the elements of felony menacing, including the requirement that

Rojas “placed or attempted to place another person in fear of

imminent serious bodily injury.” See COLJI-Crim. 3-2:30 (2022). It

instructed the jury on the definition of “serious bodily injury” as

defined in the statute. See § 18-1-901(3)(p), C.R.S. 2021. And it

instructed the jury that “[n]o single instruction describes all the law

which must be applied; the instructions must be considered

together as a whole.”

18
¶ 40 Collectively, these instructions accurately stated the law and

required the jury to find beyond a reasonable doubt that Rojas’

threats or physical actions knowingly placed or attempted to place

the deputies in fear of imminent serious bodily injury. See J.G.,

¶ 33; McDonald, ¶ 54. And we presume the jurors followed these

instructions. People v. Garcia, 2012 COA 79, ¶ 20 (“We presume

that the jury followed the court’s instructions, absent evidence to

the contrary.”). We fail to see how the instructions, when read

together as they must be, would have allowed the jury to convict

Rojas of menacing if it found that his threats and actions placed the

deputies in fear of only “bodily injury.” Thus, we conclude that the

instructions did not lower the prosecution’s burden of proof and

that the court did not abuse its discretion by denying Rojas’

proposed instruction. See McDonald, ¶ 54.

IV. Prosecutorial Misconduct

¶ 41 Rojas contends that the district court erred by allowing the

prosecutor to commit misconduct during closing argument. We are

not persuaded.

19
A. Standard of Review and Applicable Law

¶ 42 We engage in a two-step analysis when reviewing claims of

prosecutorial misconduct. Wend v. People, 235 P.3d 1089, 1096

(Colo. 2010). First, we determine whether the prosecutor’s conduct

was improper based on the totality of the circumstances. Id.

Second, if the conduct was improper, we decide whether it warrants

reversal under the proper standard. Id.

¶ 43 We review the trial court’s ruling on prosecutorial misconduct

for a “gross abuse of discretion resulting in prejudice and a denial

of justice.” People v. Camarigg, 2017 COA 115M, ¶ 39 (quoting

People v. Garner, 2015 COA 175, ¶ 26). If the defendant objected at

trial, we review for harmless error. People v. Sauser, 2020 COA

174, ¶ 80. “‘Under this standard, reversal is required only if the

error affects the substantial rights of the parties’ by substantially

influencing the verdict or affecting the fairness of the trial.” Id.

(quoting Hagos v. People, 2012 CO 63, ¶ 12).

¶ 44 While prosecutors can use every legitimate means to bring

about a just conviction, they have a duty to avoid using improper

methods designed to obtain an unjust result. Domingo-Gomez v.

People, 125 P.3d 1043, 1048 (Colo. 2005). And prosecutors cannot

20
misstate or misinterpret the law. People v. McMinn, 2013 COA 94,

¶ 62. Still, prosecutors have “wide latitude in the language and

style” used to convey their arguments. Id. at ¶ 60. And “because

arguments delivered in the heat of trial are not always perfectly

scripted, reviewing courts accord prosecutors the benefit of the

doubt when their remarks are ambiguous or simply inartful.”

People v. Samson, 2012 COA 167, ¶ 30. We evaluate claims of

improper argument “in the context of the argument as a whole and

in light of the evidence before the jury.” McMinn, ¶ 60.

B. “Knowingly”

¶ 45 Rojas contends that the prosecutor committed misconduct

during closing argument by misstating the definition of “knowingly.”

We perceive no reversible error.

¶ 46 As discussed, a person acts “knowingly” when they are aware

their conduct is practically certain to cause the result.

§ 18-1-501(6). During closing argument, the prosecutor told the

jury that “knowingly” means

that [Rojas] is aware that his conduct is
practically certain to cause a result and really
what this means, ladies and gentlemen, is that
his behavior here was not an accident. He did
not accidently pick up that tomahawk and put

21
it on his shoulder, raise it to his shoulder, as
he walked towards deputies —

Defense counsel objected. The district court overruled the

objection, and the prosecutor continued, “[Rojas] did not accidently

pick that tomahawk up and raise it to his shoulder when he was

placing those deputies in fear of imminent serious bodily

injury . . . . He knew what he was doing and he knew that his

actions would cause the result of these charges.”

¶ 47 Rojas argues that by defining “knowingly” as “not an accident,”

the prosecutor misstated the law. Even if we assume that is true,

we conclude that any error by the court in not sustaining defense

counsel’s objection was harmless. See Sauser, ¶ 80. The

prosecutor’s inartful statements were fleeting and bookended by

accurate statements of the law. And the court instructed the jury

on the correct definition of “knowingly.” Accordingly, we conclude

that any error was harmless because the prosecutor’s statements

did not substantially influence the verdict or affect the fairness of

the trial. See id.

22
C. “Threat”

¶ 48 Rojas contends that the prosecutor committed misconduct

during closing argument by misstating the definition of “threat.”

We are not persuaded.

¶ 49 During rebuttal closing argument, the prosecutor said,

[Defense counsel], during her jury selection,
she asked you, can holding a weapon, just
holding the weapon, constitute a threat and
many of the jurors in this panel said yes.
Holding a weapon can constitute a threat,
because —

Defense counsel objected, arguing that the prosecutor misstated the

law and that there was a specific definition for “threat.” The court

overruled the objection and instructed the jurors that they “simply

are to use the instructions and definitions [the court] provided to

[them] in writing.” The prosecutor continued, “The answer to that

was holding a weapon constitutes a threat, because why else would

you arm yourself that way?”

¶ 50 Rojas argues that the prosecutor improperly characterized “the

mere act of holding a weapon as a threat, absent the additional

necessary context of an expression of an intent to harm.” But the

prosecutor also repeatedly told the jury that a “threat” could be

23
“verbal threats” or “physical action” or both. The prosecutor argued

that Rojas’ conduct satisfied the threat element based on “the fact

that [Rojas] verbally and physically [made] threats against officers

to place them in fear of that serious bodily injury.”

¶ 51 Viewed in the context of the entire argument, the prosecutor

did not urge the jury to conclude that merely holding the hatchet

amounted to a threat. Even if she had, that conclusion is not

foreclosed by existing law. See Denhartog, ¶ 28. But instead, the

prosecutor asked the jury to find a threat based on the combination

of Rojas’ verbal statements and physical acts. The prosecutor’s

argument was reasonable based on the evidence. See People v.

Walters, 148 P.3d 331, 334 (Colo. App. 2006) (“During closing

argument, a prosecutor has wide latitude and may refer to the

strength and significance of the evidence, conflicting evidence, and

reasonable inferences that may be drawn from the evidence.”).

Accordingly, we conclude that the district court did not grossly

abuse its discretion by overruling defense counsel’s objection. See

Camarigg, ¶ 39.

24
V. The Court’s Statement to the Jury

¶ 52 Finally, Rojas contends that the district court erred by telling

the jury that the weapon Rojas used to menace the deputies was a

“tomahawk.” We are not persuaded.

A. Standard of Review

¶ 53 Because Rojas did not object to the district court’s

characterization of the weapon as a tomahawk, we review his

contention for plain error. See Garcia v. People, 2019 CO 64, ¶ 3.

“An error is plain if it is obvious and substantial and so undermines

the fundamental fairness of the trial itself as to cast serious doubt

on the reliability of the judgment of conviction.” People v. Rediger,

2018 CO 32, ¶ 48. For an error to be obvious, it must contravene a

statute, a well-settled legal principle, or established Colorado case

law. Campbell v. People, 2020 CO 49, ¶ 25.

B. Additional Background

¶ 54 After closing arguments, the district court read the verdict

forms to the jury. The verdict forms for the menacing charges

instructed the jury to answer the following interrogatory if it found

Rojas guilty of menacing: “Did the Defendant commit Menacing by

the use of a firearm, knife, or bludgeon?” After reading the

25
interrogatory, the court said, “Of course, we’re talking about the

tomahawk here . . . . ”

C. The District Court Did Not Err by Referring to the Menacing
Weapon as a “Tomahawk”

¶ 55 Rojas contends that the district court erred by “endors[ing] the

prosecution’s description” of the weapon used as a “tomahawk”

because “calling the tool a ‘tomahawk’ imbued it with” the negative

associated meanings of the word, including “a potentially deadly

weapon of war.” Even if we assume the court erred by calling the

weapon a tomahawk instead of a hatchet, we conclude that any

error was neither obvious nor substantial. See People v. Morales,

2014 COA 129, ¶ 38 (plain error must be “both obvious and

substantial”).

¶ 56 To begin, Rojas cites no statute, rule, or case law that would

support his contention that calling the hatchet a tomahawk was

error — let alone plain error. See Campbell, ¶ 25. Indeed, Rojas

does not cite a single legal authority in this section of his opening

brief, save for a citation to the plain error standard of review.

C.A.R. 28(a)(7)(B) (explaining that the appellant’s opening brief must

contain “citations to the authorities” on which the appellant relies).

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¶ 57 Moreover, the prosecution charged Rojas with felony menacing

and specified in the complaint and information that the weapon

used was a “tomahawk.” The court read the charges, as filed, to the

potential jurors before trial began. Throughout trial, the

prosecutors, the prosecution witnesses, and defense counsel at

times referred to the weapon as a tomahawk. And Rojas does not

direct us to any part of the record where he objected to such

references.

¶ 58 Under these circumstances, we see no reason why the court

would have hesitated to use the word tomahawk when helping the

jury associate the verdict forms with the charges. Nor do we see

how such a brief reference undermined the fundamental fairness of

the trial when the jury had heard the weapon consistently referred

to that way throughout trial. See Rediger, ¶ 48. Thus, we conclude

that any error was not plain.

VI. Disposition.

¶ 59 We affirm the judgment of conviction.

JUDGE DUNN and JUDGE SCHOCK concur.

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