Wierimaa v. Cheng

25CA0371 Wierimaa v Cheng 04-09-2026

COLORADO COURT OF APPEALS

Court of Appeals No. 25CA0371
City and County of Broomfield District Court No. 23CV30043
Honorable Mark Warner, Judge

Thomas Wierimaa,

Plaintiff-Appellant,

v.

Anna Cheng,

Defendant-Appellee.

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

Division I
Opinion by JUDGE MEIRINK
J. Jones and Lum, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced April 9, 2026

Artemis Law, LLC, Leigh Horton, Denver, Colorado, for Plaintiff-Appellant

The Burnham Law Firm, P.C., Brian D. Teed, Centennial, Colorado, for
Defendant-Appellee
¶1 Plaintiff, Thomas Wierimaa, appeals the trial court’s judgment

entered on a jury verdict finding that he assaulted defendant, Anna

Cheng, his then-wife, and awarding her $468,750 in damages. We

affirm in part and reverse in part and remand the case to the trial

court with directions.

I. Background

¶2 Cheng has two children from a previous marriage, S.W. and

H.C. She and Wierimaa married in 2017 and had one daughter,

B.W., in 2019. During their relationship, Cheng was mostly

unemployed; Wierimaa worked full-time and attended law school.

Wierimaa filed for legal separation in September 2021, and the

couple finalized their divorce in January 2023. During the divorce

proceeding, Cheng told people that Wierimaa was abusive to her

and the children.

¶3 Wierimaa filed the underlying lawsuit on February 10, 2023.

He brought claims of (1) abuse of process; (2) defamation (child

abuse); (3) defamation (domestic violence); (4) intentional infliction

of emotional distress (public smear campaign); (5) intentional

infliction of emotional distress (kidnapping minor child); and

1
(6) tortious interference with parental relations (September 2022

kidnapping of minor child).1

¶4 Cheng denied the allegations and filed counterclaims for

(1) abuse of process; (2) defamation per se; (3) extreme and

outrageous conduct (emotional distress); (4) assault; and

(5) battery. Cheng supported her counterclaims by alleging the

following incidents:

• In February 2016, while on vacation in Cancun, Mexico,

Wierimaa grabbed Cheng by the wrist, threw her onto a bed,

and caused her to fall on a hand mirror, which left her with

bruises and a back injury (the Cancun incident).

• On February 4, 2018, Wierimaa disciplined H.C. while

watching the Super Bowl. When Cheng protested, Wierimaa

yelled at her and told her to leave the home. She and the

children left (the Super Bowl incident).

1 Wierimaa later amended his complaint and added claims of

(7) abuse of process (2023 statements to child protective services);
(8) malicious prosecution (2023 statements to child protective
services); (9) defamation (false allegations of child abuse after
February 14, 2023); (10) defamation (false allegations of domestic
abuse after February 14, 2023); and (11) exemplary damages.

2
• On September 8, 2019, Wierimaa yelled at Cheng. She tried to

leave the home with all her children, but Wierimaa would not

let her take B.W. She left with S.W. and H.C. (the September

8 incident).

• On March 10, 2021, Wierimaa became angry because Cheng

didn’t know he was leaving on a business trip (the March 10

incident).

• On September 16, 2021, Wierimaa told Cheng that he had

filed for legal separation and called her a “child,” “immature,”

and a “cunt” (the September 16 incident).

• On March 11, 2022, Wierimaa threatened that he would

litigate against Cheng until B.W. turned eighteen (the March

11 incident).

• On July 5, 2022, police came to Cheng’s home to perform a

welfare check. During the visit, Cheng contacted Wierimaa

and put him on speaker phone. The officers noted that

Wierimaa sounded controlling and threatening (the July 5

incident).

3
¶5 Wierimaa and Cheng filed separate special motions to dismiss

under Colorado’s anti-SLAPP2 law, which the court denied.

Wierimaa filed a second motion to dismiss, which the trial court

partially granted with respect to Cheng’s assault claim concerning

the Cancun incident (because it was outside the statute of

limitations) and allowed her to amend her counterclaims, which she

did. She removed the Cancun incident and added more details

about the September 8 incident. Specifically, she indicated that

when she was getting the children ready that morning, Wierimaa

verbally berated her and the children. Cheng went to B.W.’s room

to pick her up from her crib and console her after she started

crying. B.W.’s crib was in the bedroom’s walk-in closet. Wierimaa

followed Cheng into the bedroom, continued to yell at her, used his

body to block Cheng in the closet, and “physically snatched” B.W.

out of Cheng’s arms. Cheng left the closet, grabbed S.W. and H.C.

along with their things for the day, and then left with the two older

children. During this time, Wierimaa continued to berate her,

2 “SLAPP” stands for “strategic lawsuit against public participation.”

Hinds v. Foreman, 2026 CO 9, ¶ 1.

4
saying she was a “horrible mother,” a “mistake,” and a “horrible

person.”

¶6 Wierimaa moved for summary judgment at the conclusion of

discovery, arguing that (1) no battery occurred because there was

no physical contact during the alleged events; (2) no assault

occurred because Cheng was not placed in apprehension of any

immediate physical contact; (3) Cheng could not prove any abuse of

process; (4) Cheng’s defamation per se claims were barred by the

absolute litigation privilege and the doctrine of substantial truth;

and (5) Cheng could not prove or establish extreme and outrageous

conduct. The court granted the motion with respect to Cheng’s

counterclaims of (1) abuse of process; (2) defamation; and

(3) extreme and outrageous conduct, but it denied summary

judgment with respect to Cheng’s assault and battery claims arising

from the September 8 incident.

¶7 Wierimaa filed two motions in limine. The first was to exclude

evidence of Cheng’s dismissed counterclaims and to limit evidence

and testimony on Cheng’s assault and battery counterclaims to the

events that occurred on September 8, 2019. The second was to

exclude evidence of a phone call Wierimaa had with a health care

5
insurance agent in May 2024 to illustrate his “aggressive

character.” During the pretrial conference, the court granted

Wierimaa’s motions because the challenged testimony would be

unduly prejudicial. However, the court noted that the evidence

could be admitted at trial if it became relevant.

¶8 At trial, Cheng testified that she and Wierimaa had the

following acrimonious arguments during their relationship:

• During a family trip to India in 2016, Cheng asked Wierimaa

to get off his phone during breakfast. An argument ensued,

Wierimaa began yelling at Cheng, and Wierimaa went to pack

his bags to return home to Denver. Cheng and her children

didn’t have a flight home, so Cheng begged Wierimaa to return

to the hotel room, which he eventually did (the India incident).

• During a family trip to Peru in 2016, Cheng asked Wierimaa to

take a picture of her and the children at the base of Machu

Picchu, to which Wierimaa responded, “No, you have enough

F---ing photos.” Wierimaa left Cheng and S.W. and took H.C.

(who was then one year old) to the top of Machu Picchu.

Cheng and S.W. (who was then five years old) climbed Machu

Picchu but didn’t reconnect with Wierimaa until they

6
descended the mountain and found Wierimaa and H.C. at a

cafeteria at Machu Picchu’s base (the Peru incident).

• Returning from a visit to Toronto in 2017, the family was

stopped at the border near Detroit because of a minor issue

with Cheng’s passport. Cheng and the children sat in a

waiting room while Wierimaa paced back and forth, became

agitated, and said, “I’m American. I don’t need to do this.”

Wierimaa asked a border agent several times how long they

would need to wait. The last time he approached the agent,

two officers physically removed Wierimaa and detained him

while several people watched and the children started crying

(the Detroit incident).

• When the couple was in Krakow, a technician called the

couple to let them know that the results of their in vitro

fertilization treatment had been unsuccessful and that their

embryos weren’t viable. Wierimaa yelled at the technician over

the phone and told the technician that it was the clinic’s fault

that the treatment was unsuccessful. The facility

subsequently dismissed the couple as clients because of

Wierimaa’s behavior (the Krakow incident).

7
• Cheng described the Super Bowl incident and added the

following details: On February 4, 2018, Wierimaa was

watching the Super Bowl, and S.W. and H.C. were in the

basement playing. When the children came up from the

basement, they didn’t turn off the basement lights. Because

H.C. was the last to come up, Wierimaa picked H.C. up by the

shoulders, walked him to the basement, and made him turn

off the lights. H.C. was scared and crying. When H.C. came

upstairs again, Cheng testified that he had a new cut on his

back.

• Cheng also expounded on the September 8 incident: On

September 8, 2019, B.W. was being fussy, so Cheng stayed

with her until 3 a.m. Cheng put B.W. in her crib. At 7 a.m.,

when Cheng was readying the older children, B.W. started

fussing again. Cheng returned to B.W.’s bedroom and

grabbed B.W. Wierimaa stood in the doorway, blocked Cheng

from leaving, and grabbed B.W. out of her arms before yelling

at Cheng, H.C., and S.W. to leave the house.

• On September 26, 2021, Wierimaa yelled at Cheng in front of

the children because she was going to take S.W. and H.C. to

8
the zoo without B.W. When Cheng and the older children

returned, B.W. had a red mark on her cheek (the September

26 incident).

¶9 Sadie Skattum, a counselor at H.C. and S.W.’s school, testified

that she made a child protective services (CPS) report in May 2021

after Wierimaa yelled at the children during pickup. She testified

that she met with H.C. and S.W. after the incident and they told her

that Wierimaa yelled at them often but that he was never physical.

After Wierimaa’s counsel objected, Skattum’s testimony regarding

S.W. and H.C.’s comments was stricken from the record, but the

CPS report was admitted into evidence.

¶ 10 Dr. Thomas Pham, B.W.’s pediatrician, also testified at trial.

Pham testified that Cheng brought B.W. to his office after the

September 26 incident so that he could examine a red mark on

B.W.’s cheek. Pham also testified that Cheng was “very concerned.

She was scared . . . . [S]he, I think, did fear for her life and feared

for her children’s lives.”

¶ 11 Rebekah Mauldin, an intake caseworker with Broomfield

County Human Services, also testified. Mauldin’s testimony

focused on the CPS report that Skattum, S.W., and H.C. had

9
concerns about B.W. being with Wierimaa because of his yelling.

Wierimaa’s counsel objected, but the court overruled the objection

because Mauldin’s testimony concerned information contained in

the previously admitted CPS report.

¶ 12 At the close of Wierimaa’s case, Cheng’s counsel moved for a

directed verdict on all of Wierimaa’s claims. The court granted a

directed verdict on Wierimaa’s claims for abuse of process (claims

one and seven) and malicious prosecution (claim eight). But it

denied Cheng’s motion for a directed verdict on Wierimaa’s claims

for defamation (claims two, three, and nine), intentional infliction of

emotional distress (claims four and five), and tortious interference

with parental relations (claim six). At the close of Cheng’s case,

Wierimaa’s counsel also moved for a directed verdict on Cheng’s

assault and battery claims, but the court denied the motion after

finding that there was sufficient evidence for the jury to consider

them.

¶ 13 The jury found in Cheng’s favor on all of Wierimaa’s claims

and on her assault counterclaim, awarding her $468,750 in

damages on that claim. Wierimaa’s attorney moved for a new trial

under C.R.C.P. 59(d), which the court denied.

10
II. Analysis

¶ 14 Wierimaa contends that (1) the trial court erred by admitting

significant and prejudicial inadmissible evidence; (2) the jury’s

finding that he assaulted Cheng isn’t supported by sufficient

evidence; (3) the trial court improperly instructed the jury; and

(4) the jury’s award of $468,750 in damages isn’t supported by the

evidence. We disagree with the first three contentions but agree

with the fourth.

A. Preservation

¶ 15 As an initial matter, Cheng argues that Wierimaa failed to

preserve the evidentiary arguments he now raises on appeal

because he didn’t make contemporaneous objections during trial.

Cheng also asserts that Wierimaa failed to preserve any challenges

to the jury instructions. We agree that some of the issues Wierimaa

raises on appeal weren’t preserved.

¶ 16 Preservation is a threshold question, and in civil cases, we

don’t address insufficiently preserved contentions. Rinker v. Colina-

Lee, 2019 COA 45, ¶ 22. An issue is preserved for appeal when it is

brought to the trial court’s attention and the court has an

opportunity to rule on it. In re Marriage of Turilli, 2021 COA 151,

11
¶ 12. To help us determine whether an issue is preserved, an

appellant must state in his opening brief “whether the issue was

preserved, and if preserved, the precise location in the record where

the issue was raised and where the court ruled.” C.A.R. 28(a)(7)(A).

1. The Motions in Limine and Cheng’s Testimony

¶ 17 In general, a court’s definitive ruling on a motion in limine

preserves the issues raised therein for appeal. CRE 103(a); see also

Uptain v. Huntington Lab, Inc., 723 P.2d 1322, 1330-31 (Colo. 1986)

(pretrial ruling on a motion in limine sufficiently preserves an issue

for appeal). A party abiding by the court’s order need not renew an

objection at trial to preserve the issue for appeal. Bennett v. Greeley

Gas Co., 969 P.2d 754, 758 (Colo. App. 1998). But see People v.

Dinapoli, 2015 COA 9, ¶ 19 (When a party “violates the court’s

pretrial order [excluding evidence] at trial, the opposing party must

contemporaneously object to preserve the issue for appeal.”).

¶ 18 Wierimaa filed a motion in limine to exclude evidence and

testimony of Cheng’s dismissed counterclaims and to limit evidence

and testimony on her assault and battery counterclaims to the

September 8 incident. He argued that any testimony and other

evidence about events that fell outside the September 8 incident

12
were too dissimilar and remote in time and would unduly prejudice

him. He also filed a separate motion in limine seeking to exclude

evidence and testimony of a call he had with a health care

insurance agent in May 2024 because it occurred after the

September 8 incident. The court made an oral ruling granting both

motions in limine, finding that the challenged incidents were remote

and dissimilar and that their probative value was substantively

outweighed by the danger of undue prejudice. See CRE 403. But

the court noted that it could reconsider its ruling at trial, which

placed both parties’ attorneys on notice that, if such evidence was

sought to be introduced, they needed to make contemporaneous

objections to preserve their evidentiary concerns on appeal. See,

e.g., Ohler v. United States, 529 U.S. 753, 758 n.3 (2000)

(recognizing that trial courts may reconsider evidentiary rulings as

the record develops); see also United States v. Morales-Quinones,

812 F.2d 604, 609-10 (10th Cir. 1987) (defense counsel had

“opened the door” to testimony). Despite that notice, at trial,

Wierimaa’s counsel didn’t object to Cheng’s testimony regarding the

India, Peru, Krakow, March 10, or March 11 incidents. Wierimaa’s

13
counsel did, however, object to Cheng’s testimony regarding the

Detroit incident.

¶ 19 During a break in Cheng’s testimony, the court indicated that

there had been “some intermittent objections and sometimes things

weren’t objected to.” It reminded counsel that “if nobody’s

objecting, I’ll just keep letting it in.” Following the court’s reminder,

Wierimaa’s counsel lodged contemporaneous objections to Cheng’s

testimony concerning the September 16, Super Bowl, and July 5

incidents.

¶ 20 Because Wierimaa’s counsel didn’t contemporaneously object

to Cheng’s testimony concerning the India, Peru, Krakow, March

10, and March 11 incidents, arguments as to the admissibility of

testimony about those incidents are unpreserved, and we won’t

address them. But because Wierimaa’s counsel objected to Cheng’s

testimony regarding the Detroit, September 16, Super Bowl, and

July 5 incidents, arguments as to the admissibility of testimony

about those incidents are sufficiently preserved, and we address

whether Cheng’s testimony about those incidents was properly

admitted infra Part II.B.

14
2. Pham’s Testimony

¶ 21 Wierimaa argues that the trial court erred by allowing Pham to

testify that Cheng “fear[ed] for her life and feared for her children’s

lives” because that testimony was speculative. Again, Wierimaa’s

counsel didn’t object to this testimony at trial. Because this

argument is unpreserved, we also decline to review it. See Gestner

v. Gestner, 2024 COA 55, ¶ 18 (“In civil cases, issues not raised in

or decided by the district court generally will not be addressed for

the first time on appeal.”).

3. Jury Instructions

¶ 22 Cheng contends — and we agree — that Wierimaa’s arguments

regarding the final jury instructions were not preserved.

¶ 23 The jury instructions were the subject of extensive discussion

throughout the trial. Both parties’ attorneys participated in

drafting the instructions and conferred with the trial court on

multiple occasions before the instructions were submitted to the

jury. The court expressly invited counsel to raise any objections or

concerns throughout the instruction drafting process. Wierimaa’s

counsel identified a wording issue with Jury Instruction No. 13 but

later withdrew any objection by affirmatively agreeing to the

15
instruction as written. Counsel for both parties then confirmed on

the record that they had no objections to the instructions, which

were later finalized and provided to the jury. Because Wierimaa’s

counsel didn’t object to the jury instructions, the court didn’t have

an opportunity to rule on any issues Wierimaa now raises on

appeal. Because the issue was not preserved, we decline to review

it. See C.R.C.P. 51 (only objections made to jury instructions before

they are given to the jury may be considered on appeal); Voller v.

Gertz, 107 P.3d 1129, 1131 (Colo. App. 2004) (same).

B. The Trial Court Did Not Err by Admitting Character Evidence

¶ 24 Wierimaa contends that the trial court erred by admitting

character evidence relating to the Detroit, September 16, Super

Bowl, and July 5 incidents. We disagree.

1. Standard of Review and Applicable Law

¶ 25 CRE 404(b)(1) prohibits the introduction of evidence to prove

that a person acted in conformity with a specific character trait on a

particular occasion. CRE 404(b)(2) does, however, allow the

introduction of such evidence for another purpose, such as “proving

motive, opportunity, intent, preparation, plan, knowledge, identity,

absence of mistake, or lack of accident.”

16
¶ 26 The supreme court articulated a four-part test in People v.

Spoto, 795 P.2d 1314, 1318 (Colo. 1990), to determine the

admissibility of “other acts” evidence in a criminal action. The

supreme court later held in Boettcher & Co. v. Munson, 854 P.2d

199, 210 (Colo. 1993), that the Spoto analysis applies when

evaluating whether CRE 404(b) excludes “other acts” evidence in a

civil action. Such evidence is admissible only if (1) the evidence

relates to a material fact; (2) the evidence has logical relevance in

that the evidence adds to the probability that the material fact is

true; (3) the logical relevance of the evidence doesn’t depend on an

intermediate inference that the litigant has a bad character, which

would be employed to support a further inference that the litigant

acted in conformity with his bad character; and (4) the probative

value of the evidence is not substantially outweighed by the

evidence’s prejudicial impact. Id. (citing Spoto, 795 P.2d at 1318).

¶ 27 When reviewing a trial court’s evidentiary ruling on the

evidence’s probative value and prejudicial impact, “a trial court is

afforded considerable discretion in passing on the admissibility of

evidence, and its determination will not be disturbed on review

17
absent a showing of an abuse of discretion.” Hock v. N.Y. Life Ins.

Co., 876 P.2d 1242, 1251 (Colo. 1994).

2. Analysis

¶ 28 Wierimaa argues that Cheng’s testimony relating to the

Detroit, September 16, Super Bowl, and July 5 incidents fails the

Spoto test. Addressing the incidents in turn, we disagree.

a. The Detroit Incident

¶ 29 Cheng’s testimony concerning the Detroit incident was

properly admitted under Spoto. First, the testimony was offered for

a proper, noncharacter purpose — to highlight the couple’s troubled

relationship, which led to Cheng’s fear of physical harm during the

September 8 incident — rather than to establish that Wierimaa

acted in conformity with a violent disposition. Second, the

testimony was logically relevant because the incident informed

Cheng’s state of mind on September 8 and made her fear of

physical harm more probable. Her description of Wierimaa’s

agitation at the border, which resulted in his physical restraint and

detention while her children cried and others watched,

demonstrated a pattern of volatility. That pattern, in turn, provided

context for Cheng’s fear on September 8.

18
¶ 30 Third, the logical relevance of the evidence was independent of

any impermissible character inference. The testimony concerned a

specific episode that scared Cheng and was not a generalized claim

that Wierimaa possessed a propensity for violence. Finally, the

probative value wasn’t substantially outweighed by the danger of

unfair prejudice. While the incident was dramatic, it informed why

Cheng may have feared Wierimaa during the September 8 incident.

Under these circumstances, we conclude that the trial court didn’t

err by admitting the evidence.

b. Other Incidents

¶ 31 Wierimaa’s challenge to Cheng’s testimony regarding the

Super Bowl, September 16, and July 5 incidents is unavailing.

Wierimaa doesn’t analyze each incident under the applicable

framework and instead asserts, in conclusory fashion, that, taken

together, they fail the Spoto requirements. Not only does Wierimaa

fail to include adequate citations to the record demonstrating where

the alleged errors took place, but each incident was offered for a

proper, noncharacter purpose — namely, to illuminate the nature of

the parties’ relationship and to provide context for the September 8

incident. In that respect, the evidence was logically relevant to a

19
material issue in the case. The testimony helped explain Cheng’s

perception of and reaction to Wierimaa’s conduct, including her

claimed fear, and tended to show a pattern of tense and volatile

interactions between the parties.

¶ 32 Further, the probative value of this testimony wasn’t

substantially outweighed by the danger of unfair prejudice. The

incidents demonstrated a pattern of tense or volatile behavior that

informed the jury’s understanding of the parties’ dynamics; they

didn’t invite a verdict based on an impermissible propensity

inference. Accordingly, the trial court didn’t abuse its discretion by

admitting Cheng’s testimony about these incidents.

C. The Trial Court Did Not Err by Admitting Child Hearsay

¶ 33 Wierimaa argues that the trial court erred by admitting

prejudicial child hearsay. We disagree.

1. Standard of Review and Applicable Law

¶ 34 Under the child hearsay statute, as relevant here, a child’s

out-of-court statements are admissible if, after a pretrial hearing,

(a) the court finds sufficient safeguards of reliability, and (b) the

child is unavailable as a witness and there is sufficient

corroborative evidence. § 13-25-129(5)(a)-(b), C.R.S. 2025. We

20
review the admission of child hearsay statements for an abuse of

discretion. People in Interest of G.E.S., 2016 COA 183, ¶ 47.

2. Analysis

¶ 35 Wierimaa contends that the trial court abused its discretion by

(1) admitting Skattum’s testimony that S.W. and H.C. told her that

Wierimaa yelled at them every day; (2) allowing Cheng’s testimony

that the children wanted to go home to check on B.W.; and

(3) admitting Mauldin’s testimony that S.W. and H.C. were

concerned about B.W. being with Wierimaa because of his yelling.

We disagree with each contention.

¶ 36 First, the portion of Skattum’s testimony that Wierimaa

challenges on appeal was stricken from the record after Wierimaa’s

counsel objected.3 Once stricken, the testimony was no longer

before the jury for deliberative purposes. The same is true for the

portion of Cheng’s testimony stating that the children wanted to go

home to check on B.W. Wierimaa’s counsel immediately objected,

and Cheng’s counsel withdrew the question that elicited the

response. See People v. Jamison, 2018 COA 121, ¶ 37.

3 Regardless, Skattum’s challenged statements were also admitted

through the CPS report.

21
¶ 37 Second, Mauldin’s testimony was limited to the information

contained in the prepared CPS report, which was previously

admitted as evidence. Because the testimony was cumulative of

evidence already properly before the jury, Mauldin’s testimony

didn’t introduce new or prejudicial information. Accordingly, the

trial court didn’t abuse its discretion by allowing testimony that

reiterated previously admitted evidence.

D. There Was Sufficient Evidence Supporting the Jury’s Finding
That Wierimaa Assaulted Cheng

¶ 38 Wierimaa also contends that there was insufficient evidence to

support the jury’s finding that he assaulted Cheng. We disagree.

1. Standard of Review and Applicable Law

¶ 39 “When sufficiency of the evidence is challenged on appeal, we

must determine whether the evidence, viewed as a whole and in the

light most favorable to the prevailing party, is sufficient to support

the verdict.” Parr v. Triple L & J Corp., 107 P.3d 1104, 1106 (Colo.

App. 2004). We review the entire record to determine if there is

competent evidence to support the jury’s verdict. Vititoe v. Rocky

Mountain Pavement Maint., Inc., 2015 COA 82, ¶ 34.

22
¶ 40 We “are bound by the jury’s findings where there is sufficient

competent evidence in the record to support the finding[] [and]

where the jury makes the finding on conflicting evidence.” Vigil v.

Pine, 490 P.2d 934, 936 (Colo. 1971); see Brewer v. Am. & Foreign

Ins. Co., 837 P.2d 236, 238 (Colo. App. 1992) (“Unless clearly

erroneous and unsupported by the record, the findings of the jury

must be accepted on review.”). “It is the jury’s sole province to

determine the weight of the evidence and the credibility of

witnesses, and to draw all reasonable inferences of fact therefrom.”

Morales v. Golston, 141 P.3d 901, 906 (Colo. App. 2005).

¶ 41 To prevail on her assault claim, Cheng had to prove by a

preponderance of the evidence that (1) Wierimaa acted either with

the intent of making physical contact with Cheng or putting her in

apprehension of such contact; (2) Cheng was placed in

apprehension of imminent contact by Wierimaa’s conduct; and

(3) such contact was or appeared to be harmful or offensive. Adams

v. Corr. Corp. of Am., 187 P.3d 1190, 1198 (Colo. App. 2008).

2. Analysis

¶ 42 With respect to intent, the jury heard evidence from which it

reasonably could have found that Wierimaa intended to put Cheng

23
in apprehension of immediate physical contact or to cause offensive

or harmful contact. Intent is rarely susceptible of direct proof and

may be inferred from words, conduct, and the surrounding

circumstances. See Se. Colo. Water Conservancy Dist. v. Twin Lakes

Assocs., Inc., 770 P.2d 1231, 1237 (Colo. 1989). Cheng described

patterns of Wierimaa’s hostility, intimidation tactics, and physical

domination that occurred in private, in public, and in the presence

of the parties’ children. Cheng also described how, during the

September 8 incident, Wierimaa stood over her, glared, said, “[F]uck

you. Fuck off” in front of the children, and physically blocked her

from leaving the closet with B.W. When Cheng asked Wierimaa to

move, he yelled, “Give me my daughter. I’m going to call the cops

on you,” and forcibly grabbed B.W. from Cheng’s arms. The older

children ran down a nearby hallway and hid under a bed.

¶ 43 From Cheng’s testimony, the jury reasonably could have

inferred that Wierimaa intended to place Cheng in apprehension of

immediate physical contact or to subject her to offensive or harmful

contact. We don’t reassess witness credibility, reweigh evidence, or

substitute our judgment for that of the jury. See People in Interest

of A.J.L., 243 P.3d 244, 256 (Colo. 2010); Ovation Plumbing, Inc. v.

24
Furton, 33 P.3d 1221, 1225 (Colo. App. 2001) (A “jury’s verdict will

not be disturbed if there is any support for it in the record.”

(citation omitted)).

¶ 44 Next, Wierimaa argues that Cheng “never directly testified

about her apprehension during the incident.” We disagree. On

direct examination, Cheng was asked, “On September 8th, 2019,

did Wierimaa put you in a situation where you felt an apprehension

of fear for physical harm?” Cheng responded, “Yes.” Although

Wierimaa contends that the jury should have discounted Cheng’s

testimony because he never expressly threatened physical harm or

the use of force, that argument is unpersuasive because neither

threatening language nor actual contact are required to establish

assault. See Adams, 187 P.3d at 1198. Rather, Cheng’s testimony,

if believed, was sufficient to establish that she was apprehensive of

physical harm, and the absence of an explicit verbal threat doesn’t

render the evidence legally insufficient. Moreover, as discussed, it

isn’t our role to reweigh the evidence or substitute our judgment for

that of the jury. See Morales, 141 P.3d at 906. Viewing the

evidence in the light most favorable to the verdict, the jury

reasonably could have found that Cheng experienced apprehension

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of physical harm under the circumstances presented. We therefore

decline to disturb that finding.

E. The Jury’s Damages Award Was Not Supported
by the Evidence

¶ 45 Wierimaa argues that the jury’s damages award to Cheng was

not supported by the evidence. We agree.

1. Applicable Law and Standard of Review

¶ 46 Colorado allows recovery for noneconomic damages up to

$250,000, adjusted for inflation. § 13-21-102.5(3)(a)(I), C.R.S.

2025. In enacting limitations on damages for noneconomic loss or

injury, the legislature has defined a “[n]oneconomic loss or injury”

as a nonpecuniary harm where the person suffered direct or

primary loss or injury, including pain and suffering, inconvenience,

emotional stress, and impairment to their quality of life. § 13-21-

102.5(2)(b). This is a statute of general application, Scholz v. Metro.

Pathologists, P.C., 851 P.2d 901, 907 (Colo. 1993), which accounts

for damages for both real injuries and emotional distress, see

Averyt v. Wal-Mart Stores, Inc., 265 P.3d 456, 462-63 (Colo. 2011);

Goodson v. Am. Standard Ins. Co. of Wis., 89 P.3d 409, 417 (Colo.

2004). “Because damages for loss of enjoyment, annoyance,

26
discomfort, and inconvenience ‘by their very nature include a

mental or emotional component,’ limited testimony about a

plaintiff’s reactions or feelings may be used to describe these

noneconomic damages.” Hendricks v. Allied Waste Transp., Inc.,

2012 COA 88, ¶ 27 (quoting Webster v. Boone, 992 P.2d 1183, 1186

(Colo. App. 1999)).

¶ 47 One claiming damages, however, must submit “substantial

evidence, which together with reasonable inferences to be drawn

therefrom provides a reasonable basis for computation of the

damage.” Pomeranz v. McDonald’s Corp., 843 P.2d 1378, 1383

(Colo. 1993).

Substantial evidence is that which is
probative, credible, and competent. It is
evidence of a character that would warrant a
reasonable belief in the existence of facts
supporting a particular finding, without regard
to the existence of contradicting testimony or
contradictory inferences. Accordingly, if there
is no competent evidence to support a damage
award, it is clearly erroneous.

Palmer v. Diaz, 214 P.3d 546, 552 (Colo. App. 2009).

¶ 48 The amount of damages to award to the prevailing party in a

jury trial is within the sole province of the jury. Averyt, 265 P.3d at

462. On appeal, a jury’s damages award “will not be disturbed

27
unless it is completely unsupported by the record or if it is so

excessive as to indicate that the jury acted out of passion,

prejudice, or corruption.” Id. When a damages award is

challenged, the appellate court must view the record in the light

most favorable to the prevailing party and draw every inference in

favor of that party. Id. We will not disturb an award of damages

unless it is completely unsupported by the record. See Husband v.

Colo. Mountain Cellars, Inc., 867 P.2d 57, 60 (Colo. App. 1993) (“If

there is evidence to support a jury’s findings as to damages, those

findings may not be overturned . . . .”).

2. Analysis

¶ 49 Wierimaa asserts that the jury’s award of $468,750 was

excessive because (1) it was likely that the jury applied exemplary

damages to Cheng’s assault counterclaim because the order of the

jury instructions and lack of clarity confused the jury;4

(2) testimony relating to evidence outside the September 8 incident

4 Wierimaa sought exemplary damages; Cheng didn’t. But the
exemplary damages instruction didn’t clarify that it applied only to
Wierimaa’s claims. Because this instruction immediately preceded
the instruction on apprehension relating to Cheng’s claims,
Wierimaa claims the jury was likely confused.

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created unfair bias, prejudice, and passion against him; (3) Cheng

didn’t suffer a physical or emotional injury in connection with the

September 8 incident; and (4) the record doesn’t support the jury’s

award.

¶ 50 First, as we have noted supra Part II.A.3., Wierimaa’s counsel

didn’t object to the court’s jury instructions. Because any claim of

instructional error is unpreserved, we decline to review Wierimaa’s

argument on that basis. Second, to the extent Wierimaa claims

that evidence admitted outside the September 8 incident created

unfair juror bias, prejudice, or passion against him, either those

claims were unpreserved, as we have noted supra Part II.A.1., or the

evidence was properly admitted, as we discussed supra Part II.B.2.

Moreover, Wierimaa’s claims of juror bias, prejudice, and passion

are speculative and underdeveloped. See People v. Thompson, 2017

COA 56, ¶ 199 (declining to address a contention on appeal when

the premise is “entirely speculative”); Antolovich v. Brown Grp.

Retail, Inc., 183 P.3d 582, 604 (Colo. App. 2007) (“We will not

address . . . underdeveloped arguments.”).

¶ 51 Third, we aren’t persuaded by Wierimaa’s argument that

Cheng didn’t suffer an emotional injury. The jury was instructed

29
that, in determining actual damages, it could consider

“noneconomic losses or injuries . . . [Cheng] has had to the present

time or . . . will probably have in the future, including: physical and

mental pain and suffering, inconvenience, emotional stress, fear,

anxiety, embarrassment, humiliation, or impairment of the quality

of life.” The jury heard testimony from Cheng describing years of

emotional abuse and her turbulent relationship with Wierimaa,

which informed her state of mind on September 8. Cheng also

directly testified that she was fearful on September 8, and the jury

could have inferred that she felt anxious and stressed.

¶ 52 However, we do agree with Wierimaa’s assertion that the jury’s

damages award isn’t supported by the record. In cases where the

appellate court affirmed a jury’s award of noneconomic damages,

the plaintiff had presented testimony of pain, suffering, mental

anguish, or a reduced quality of life. See, e.g., Averyt, 265 P.3d at

462-63 (the plaintiff provided ample testimony she suffered from

chronic pain that induced personality changes, depression,

difficulty sleeping, and difficulty concentrating after her injury);

Schuessler v. Volter, 2012 COA 86, ¶ 56 (the plaintiff testified to his

emotional distress and anger at not receiving benefits, the impact of

30
working in pain when he needed time to recover, and the financial

pressure and anxiety from not having money to cover his costs);

Colwell v. Mentzer Invs., Inc., 973 P.2d 631, 639 (Colo. App. 1998)

(the plaintiff’s experts testified that while the plaintiff could

continue to work as a teacher, eventually, the quantity and quality

of her teaching would likely be reduced, and there was a high

likelihood that the plaintiff would end up in a wheelchair, given her

worsening symptoms).

¶ 53 Here, the sole reference in the record to noneconomic damages

appears in a single page of Cheng’s testimony, in which she alluded

generally to fear of physical harm. Although Cheng testified that

she felt fear during the September 8 incident, she never developed

that testimony or indicated that, at the time of the incident or

thereafter, she experienced physical or mental pain, emotional

distress (apart from the immediate fear), anguish, inconvenience, or

humiliation, or that the incident impaired her quality of life.

Likewise, neither Cheng nor her witnesses testified that the

September 8 incident left her unable to work, that she suffered

economic loss, or that she experienced other symptoms associated

with an award of noneconomic damages. Simply put, Cheng failed

31
to submit substantial evidence supporting the jury’s award of

almost half-a-million dollars. Further, Cheng’s counsel didn’t

articulate a measurable amount of harm or even request damages

during closing argument.

¶ 54 Thus, the jury’s award for damages was excessive and

unsupported by the record. Accordingly, we reverse that award.

When an appellate court determines that the verdict was only

excessive and not the result of bias or prejudice, “the court may

order a remittitur and alternatively authorize a new trial on

damages alone if the plaintiff refuses to accept the remittitur.”

Higgs v. Dist. Ct., 713 P.2d 840, 861 (Colo. 1985); see also Bassett

v. O’Dell, 498 P.2d 1134, 1135 (Colo. 1972) (“Numerous cases have

considered and approved the practice of granting partial retrials on

the issue of damages alone where liability was clearly established.”).

¶ 55 Accordingly, on remand, the trial court is directed to offer

Cheng the option of remittitur, and, if she doesn’t accept, to order a

new trial on the amount of noneconomic damages for the assault

claim. See Jagow v. E-470 Pub. Highway Auth., 49 P.3d 1151, 1161

(Colo. 2002) (affirming the court of appeals’ judgment directing the

trial court to offer the plaintiff the option of remittitur, and if

32
remittitur was not accepted, to hold a new trial on damages to the

remaining property).

F. Appellate Attorney Fees

¶ 56 We deny Wierimaa’s request for attorney fees on appeal and

his request to determine appellate fees through a contempt hearing

on remand because he has prevailed on appeal only as to the

damages award; Cheng has prevailed on all other issues. See

C.A.R. 39.1.

III. Disposition

¶ 57 We affirm the portion of the judgment that found in Cheng’s

favor on all of Wierimaa’s claims and on her assault counterclaim.

We reverse the jury’s award of damages on Cheng’s assault

counterclaim and remand the case to the trial court for remittitur,

or, if Cheng objects, a new trial on damages.

JUDGE J. JONES and JUDGE LUM concur.

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