Peo v. Johnson

22CA1786 Peo v Johnson 12-18-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 22CA1786
Arapahoe County District Court No. 21CR671
Honorable Ben L. Leutwyler III, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

De Ovay Malik Johnson,

Defendant-Appellant.

JUDGMENT AFFIRMED AND CASE
REMANDED WITH DIRECTIONS

Division I
Opinion by JUDGE SCHUTZ
J. Jones and Grove, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced December 18, 2025

Philip J. Weiser, Attorney General, William G. Kozeliski, Senior Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Jason C. Middleton, Deputy
State Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 Defendant, De’oveya1 Malik Johnson, appeals his judgment of

conviction for first degree burglary, second degree assault, and

menacing. We affirm the judgment and remand with instructions to

correct the mittimus to reflect the merger of the second degree

assault and menacing convictions into the first degree burglary

conviction.

I. Background and Procedural History

A. Assault and Arrest

¶2 On an early June morning, Johnson and Italia King2 matched

on Tinder, a dating application. They arranged to meet at King’s

apartment. They watched television, talked, consumed a couple of

shots of alcohol, and smoked a small amount of marijuana. At one

point, while they sat on King’s couch, Johnson showed King his

handgun.

1 We note that the final order stylizes Mr. Johnson’s name as “De

Ovay” and that different parts of the record stylize his name as “De
Ovay,” “DeOvay,” and “Deoveya.” However, according to Johnson’s
counsel, the correct version of his name is “De’oveya” and the briefs
on appeal stylize his name in that manner. We adopt this same
nomenclature, but emphasize that no matter how stylized, the
documents entered in the trial court and on appeal refer to the
same person.
2 When this incident occurred Ms. King’s last name was Moore; she

has since married and changed her last name.

1
¶3 King testified that the date took a turn after Johnson became

“extremely upset” when she declined his request for oral sex. King

asked Johnson to leave her apartment, at which point he

threatened to steal her car, and she started recording him on her

phone.

¶4 Johnson slapped the phone out of King’s hand and pointed the

gun at her head. They tussled until Johnson repeatedly pistol-

whipped her in the head and violently dragged her through the

apartment. He also kicked her several times while she was on the

floor. King suffered significant eye injuries and a concussion during

the assault and lost consciousness more than once. Johnson

eventually left the apartment, and King went to a neighbor for help.

¶5 When the first responders arrived, King tried to show them

Johnson’s Tinder profile but could not find the page, so she showed

them Johnson’s Instagram account and identified him through two

pictures. The pictures were from an Instagram profile with the

name “deoveyajohnson.” The first picture depicted an individual

whom King identified as Johnson, posing from the side with a

firearm sticking out of the front pocket of his jeans (exhibit 20).

King also located a front-facing picture of the same individual

2
(exhibit 21) from the same profile and again identified him as the

man who attacked her.

¶6 The prosecution charged Johnson with eight counts including

first degree burglary, second degree assault, menacing, obstruction

of telephone or telegraph service, violation of a protection order,3

criminal mischief, and two crime of violence sentence enhancers.

B. Trial and Conviction

¶7 Johnson moved to sever the violation of a protection order

(VPO) count on the grounds that joinder was prejudicial under

Crim. P. 14. Specifically, Johnson argued that evidence of his prior

criminal activity would violate his right to a fair trial because the

jury, after learning of a protection order related to another woman,

may have inferred that he had a proclivity for violence towards

women.

¶8 After a pretrial hearing, the trial court denied the motion but

instructed the parties to redact the portions of the protection order

that were unduly prejudicial. During trial, the court dismissed the

VPO count as a discovery sanction against the prosecution. After

3 As discussed in more detail below, the violation of a protection

order count related to a different person.

3
doing so, the court instructed the jury that it would not consider

the VPO count.

¶9 The jury found Johnson guilty of all the remaining charges,

and the court sentenced him to a controlling term of twenty-five

years in the custody of the Department of Corrections. This appeal

followed.

II. VPO Claims

¶ 10 Johnson argues that the trial court abused its discretion by

failing to sever the VPO count and not excluding all evidence related

to the VPO count. We disagree.

A. Additional Facts

¶ 11 Johnson had a prior criminal conviction and resulting

protection order for the benefit of a victim in an unrelated case.

The protection order prohibited Johnson from possessing a gun.

Before trial, Johnson’s counsel moved to sever the VPO count from

the remaining counts.

¶ 12 At a motions hearing, the trial court asked the parties to

confer to determine whether there was “a way to redact [the

prejudicial] information such that [the protection order] simply

sa[id] that Mr. Johnson was under an order from the court to not do

4
something that he ha[d] been alleged to have done?” The

prosecution replied that it was possible, and the trial court ordered

the parties to confer with each other and work on redactions to the

protection order to see if they could reach an acceptable result. The

court told counsel they could readdress the issue at the pretrial

readiness conference if they could not reach a resolution.

¶ 13 Thereafter, the prosecution redacted from the protection order

the victim’s name, the criminal case number associated with the

offense, all references to stalking and harassment prohibitions, and

all references to the victim’s gender.

¶ 14 On the morning of trial, Johnson’s counsel renewed their

objection to admitting the protection order on the basis that it

would lead to an “impermissible inference that Johnson had

previously been in trouble.” They requested additional redactions

including removing the language that Johnson was ordered to

remain a certain distance from the victim in the other matter. The

prosecutor indicated that she would make the additional

redactions, and the court told defense counsel to “let [it] know” if

“there’s still a disagreement” after those changes were made.

Defense counsel said, “Perfect.”

5
¶ 15 Johnson’s counsel renewed their prior objections when the

redacted protection order was offered at trial, which the trial court

overruled. The investigator who identified the redacted protection

order testified that it restricted Johnson from possessing a firearm,

that Johnson was advised of the protection order in January 2020,

and that Johnson knew he was not allowed to possess a firearm.

¶ 16 The next day, the trial court dismissed the VPO count as a

sanction for the prosecution’s discovery violation. The court

allowed the protection order to remain part of the record but

withdrew it as an exhibit. The court also found that the

prosecution could still use the investigator’s testimony that

Johnson knew that he should not have a gun. Johnson’s counsel

did not object or ask for additional jury instructions about the

dismissed VPO count.

¶ 17 The trial court subsequently instructed the jury as follows:

“[L]adies and gentlemen, during one of my conferences with the

attorneys, it was determined that the parties will not be proceeding

on the charge of violation of a protection order, and so that is not a

charge that this jury will consider.” The trial court did not instruct

6
the jury to disregard the investigator’s testimony related to the

protection order.

B. Standard of Review and Applicable Law

¶ 18 We review a trial court’s decision not to sever charges for an

abuse of discretion. People v. Garcia, 2012 COA 79, ¶ 23. A

defendant challenging a court’s decision to sever must show that

joinder caused them ‘“actual prejudice’ and that the trier of fact was

unable to separate the facts and legal principles applicable to each

offense.” Bondsteel v. People, 2019 CO 26, ¶ 59 (quoting Garcia,

¶ 28).

¶ 19 We also review a court’s “decision to give, or not to give, a

particular jury instruction for an abuse of discretion.” People v.

Payne, 2019 COA 167, ¶ 16. Under this standard, we will not

disturb the court’s decision absent a showing that it was manifestly

arbitrary, unreasonable, or unfair or was based on a

misapprehension or misapplication of the law. People v. Elmarr,

2015 CO 53, ¶ 20. A trial court is not obligated to give a limiting

instruction unless it is required by a statute or requested by a party

and warranted by the evidence. Davis v. People, 2013 CO 57, ¶ 21.

7
¶ 20 The parties dispute whether Johnson properly preserved his

VPO arguments. The People concede that while Johnson preserved

his argument as it relates to Crim. P. 14, he did not preserve his

argument under Crim. P. 8(a)(2) and did not preserve his contention

that the trial court erred by failing to properly instruct the jury to

disregard the evidence related to the VPO count.

¶ 21 We review unpreserved contentions for plain error. People v.

Tallent, 2021 CO 68, ¶¶ 11-12. Plain error occurs “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.

¶ 22 Although he relies on Crim. P. 8(a)(2) on appeal, in the trial

court Johnson made no argument under Crim. P. 8. Thus, we

agree with the People that the Crim. P. 8 arguments were not

preserved, and we review them for plain error. See Tallent, ¶ 12.

1. Severance

¶ 23 Criminal offenses may be tried together under Crim. P. 8(a)(2)

if they are “of the same or similar character or are based on two or

more acts or transactions connected together.” If, however, it

appears that a criminal defendant will be prejudiced by the joinder

8
of offenses, “the court may order an election or separate trials of

counts . . . or provide whatever other relief justice requires.” Crim.

P. 14.

2. The Admissibility of Evidence

¶ 24 Relevant evidence — that which has “any tendency to make

the existence of any fact that is of consequence to the determination

of the action more probable or less probable than it would be

without the evidence,” CRE 401 — is admissible unless its probative

value is “substantially outweighed by the danger of unfair prejudice,

confusion of the issues, or misleading the jury, or by considerations

of undue delay, waste of time, or needless presentation of

cumulative evidence,” CRE 403.

¶ 25 Evidence of “any other crime, wrong, or act is not admissible

to prove a [defendant’s] character in order to show that on a

particular occasion the [defendant] acted in conformity with the

character.” CRE 404(b)(1). But such evidence may be used to

prove “another purpose, such as . . . motive, opportunity, intent,

preparation, plan, knowledge, identity, absence of mistake, or lack

of accident.” CRE 404(b)(2).

9
¶ 26 To determine whether evidence is admissible under CRE

404(b) we apply the four-part test announced in People v. Spoto,

795 P.2d 1314 (Colo. 1990). That test asks whether (1) the

evidence relates to a material fact; (2) the evidence is logically

relevant; (3) the logical relevance of the evidence is independent of

the inference that the defendant acted in conformity with a bad

character; and (4) the probative value of the evidence is

substantially outweighed by the danger of unfair prejudice. Id. at

1318.

C. Analysis

¶ 27 Johnson argues that the VPO count should have been severed

from the remaining counts under Crim. P. 14 because it improperly

suggested prior criminal activity and a propensity for violence

against women. He also argues that evidence pertaining to the VPO

count was not admissible under Crim. P. 8(a)(2) because the two

cases did not arise out of two or more acts connected together. The

People respond that joinder of the VPO charge was required under

Crim. P. 8(a)(1) because that charge and the burglary-related

charges were “actually known to the prosecuting attorney at the

time of commencing the prosecution,” and “they [were] based on the

10
same act or series of acts arising from the same criminal episode.”

Alternatively, the People argue that the trial court did not abuse its

discretion by permissively joining the counts under Crim. P. 8(a)(2)

because the VPO charge was based on Johnson’s possession of the

gun in King’s apartment, and the act of possessing the weapon

supported the burglary, assault, and menacing charges.

¶ 28 We reject Johnson’s argument that the VPO and the other

charges were not based on two acts connected together. Johnson

was aware of the protection order and that he was not allowed to

use or possess a firearm. And Johnson used the firearm during the

burglary and assault. Thus, the VPO, burglary, assault, and

menacing charges were arguably connected together, and we cannot

say the trial court erred, much less plainly erred, by not sua sponte

severing the charges based on Crim. P. 8. See Hagos v. People,

2012 CO 63, ¶ 14.

¶ 29 We are also unpersuaded by Johnson’s assertion that the

jury’s mere knowledge of the existence of the redacted protection

order prejudiced him within the meaning of Crim. P. 14. Johnson

reasons that “although not a prior conviction, the VPO charge and

11
related protection order clearly implicated Mr. Johnson’s character

and indicated prior criminality.” Johnson preserved this argument.

¶ 30 As Johnson notes, the trial court addressed this issue by

encouraging the parties to redact anything in the protection order

that was perceived to be prejudicial. Thus, the court did not

conduct a typical prejudice or CRE 404(b) analysis.

¶ 31 However, despite multiple instructions to advise the court if

the parties could not reach an acceptable resolution about

admitting the protection order, Johnson’s counsel did not identify

any problems with the redactions after they were completed.

Additionally, counsel repeatedly asked for — and obtained — all

their requested redactions to minimize the prejudice of the

protection order. With these redactions, the protection order simply

informed the jury that Johnson was prohibited from possessing a

gun and knew of that prohibition.

¶ 32 True, as Johnson argues on appeal, the trial court did not

conduct a CRE 404(b) analysis addressing whether evidence of the

VPO and burglary charges would have been cross-admissible if the

charges had been tried separately. See Bondsteel, ¶ 44 (A CRE

404(b) analysis “arguably informs the question of whether the

12
joinder . . . was prejudicial.”). Johnson concedes that evidence

supporting the burglary-related events would have been admissible

at a separate trial of the VPO count because Johnson allegedly

possessed a gun during those events. But he argues that the

protection order would not have been admitted at a separate trial of

the burglary-related offenses.

¶ 33 Even if we assume, for the sake of argument, that the

protection order would not have been admissible at a separate trial

of the burglary-related offenses, that simply returns us to the issue

of whether the admission of the redacted protection order and the

investigator’s limited testimony concerning its redacted content

prejudiced Johnson. We conclude that it did not. As previously

noted, after the court’s rulings, the jury learned only that a court

order prohibited Johnson from possessing a firearm and that he

knew of that order. Given the inflammatory nature of the facts

surrounding the burglary-related offenses, we do not believe the

jury’s knowledge of the existence of the protection order would have

further inflamed its understanding of the facts.

¶ 34 Moreover, the evidence supporting the burglary-related

charges was substantial. King directly identified Johnson as the

13
perpetrator. She was also able to access his Instagram photos and

confirmed her identification based on two photos from that profile.

Given this direct evidence of Johnson’s guilt on the burglary-related

offenses, we perceive no meaningful prejudice associated with the

redacted protection order and related testimony. See Bondsteel,

¶ 64 (assessing the strength of the evidence against the defendant

when evaluating a Crim. P. 14 prejudice analysis).

¶ 35 We also reject Johnson’s argument that the jury was not able

to differentiate the facts and legal principles applicable to each

offense. See id. at ¶ 59. Because it was dismissed, the jury was not

asked to make findings or apply legal principles to the VPO charge.

Thus, we perceive no reason why the redacted protection order

would have led to jury confusion in assessing the remaining

charges.

¶ 36 Johnson next claims that after the trial court dismissed the

VPO charge, it should have given the jury a limiting instruction to

mitigate any potential concerns that the jury may improperly

consider the evidence related to the charge. The People respond

that the trial court properly told the jury that it would not consider

14
the VPO charge, and if Johnson wanted additional limiting

instructions, his counsel should have asked the court.

¶ 37 Again, Johnson’s claim fails. The court properly instructed

the jury not to consider the VPO count. As it relates to the claim

that the jury should have been given an additional limiting

instruction, unless statutorily mandated and warranted by the

evidence, a trial court is not required to give a limiting instruction

absent a party’s request (and entitlement to the requested

instruction under the evidence). See Davis, ¶ 21.

¶ 38 Finally, Johnson notes that during voir dire, the court read to

the prospective jurors the substance of the VPO charge, including

that it was intended to protect another woman from imminent

danger to life or health. But the court informed the prospective

jurors that these were simply allegations made by the People and

had no evidentiary value:

The charges are not evidence of anything; they
are merely the People’s claims that Mr.
Johnson has committed certain crimes. They
are not evidence that he has committed any
crime, and no juror should assume that a
defendant — and in this particular case Mr.
Johnson — has committed a crime just
because he’s charged with doing so.

15
The jury is presumed to have followed these instructions. See

Dupont v. Preston, 9 P.3d 1193, 1200 (Colo. App. 2000) (“[A] jury is

presumed to be capable of following instructions and presumed to

follow a trial court’s instructions.”), aff’d on other grounds, 35 P.3d

433 (Colo. 2001). Because the reading of charges had no

evidentiary value, we discern no abuse of discretion in the trial

court’s failure to provide the jury with any additional instructions.

III. Evidence Claims

¶ 39 Johnson contends that the trial court erred by admitting

exhibit 20 because it showed him with a gun and was therefore

unduly prejudicial under CRE 403. We disagree.

A. Standard of Review and Applicable Law

¶ 40 As previously noted, we review a trial court’s evidentiary

rulings for an abuse of discretion. Elmarr, ¶ 20. “An issue is

unpreserved for review when, among other things, . . an objection

or request was made in the trial court, but on grounds different

from those raised on appeal . . . .” People v. Ujaama, 2012 COA 36,

¶ 37.

¶ 41 As mentioned, evidence is relevant if it has “any tendency to

make the existence of any fact that is of consequence to the

16
determination of the action more probable or less probable than it

would be without the evidence.” CRE 401. Relevant evidence may

be excluded, however, “if its probative value is substantially

outweighed by the danger of unfair prejudice, confusion of the

issues, or misleading the jury, or by considerations of undue delay,

waste of time, or needless presentation of cumulative evidence.”

CRE 403. CRE 404 prohibits the admission of evidence of other

crimes, wrongs, or acts “to prove a person’s character in order to

show that on a particular occasion the person acted in conformity

with the character.” CRE 404(b)(1).

B. Analysis

¶ 42 Johnson argues that the trial court abused its discretion by

admitting exhibit 20 over his counsel’s objection because the image

depicts him with a handgun protruding from his jeans pocket. At

trial, Johnson’s counsel argued that King could not testify that the

gun shown in the photo was the gun used during the assault, she

had not indicated when the photo was taken, and King could not be

certain whether Johnson actually created the Instagram profile.

¶ 43 On appeal, Johnson argues for the first time that the trial

court erred by not conducting a CRE 404(b) analysis. Specifically,

17
he argues that even if the picture was relevant, depicting him with a

firearm was so prejudicial that the court should have either wholly

excluded the photo or cropped it so that the gun was not visible,

especially considering that another picture — exhibit 21 — was

available and contained no information that could lead to an

improper inference. Because this argument was not raised below,

we review it for plain error.

¶ 44 The People counter that the trial court did not abuse its

discretion by finding that the image was relevant because Johnson’s

theory of the case was that someone else attacked King, so the

photographs were relevant to King’s initial identification of Johnson.

¶ 45 We discern no error in the trial court’s admission of exhibit 20.

King’s credibility generally and her identification of Johnson based

on these pictures particularly — which she accessed shortly after

police arrived — were clearly relevant. Indeed, the credibility of

King’s identification of Johnson was essential to this case. Exhibit

20 was a full body picture, and King relied on it in confirming that

Johnson was the person who had attacked her. King testified

regarding how she accessed the photo on her phone and that the

picture showed it came from Johnson’s Instagram profile, and any

18
issues with respect to the date on which the picture was taken — or

the speculative assertion that the social media profile could have

been created without Johnson’s knowledge — go to the weight of

the evidence, not its admissibility.

¶ 46 We also are unpersuaded that the admission of exhibit 20

violated CRE 403 or 404(b) because depicting Johnson with a gun

was unduly prejudicial or evidence of his bad character. First, we

reject the notion that the possession of a handgun is automatically

indicative of bad character; after all, many people of good character

carry handguns. Moreover, exhibit 20 does not depict Johnson in a

way that is particularly menacing or threatening. Given these facts,

we cannot conclude that the court abused its discretion — much

less plainly erred — by admitting exhibit 20.

IV. Merger Claims

¶ 47 Johnson contends that his second degree assault and

menacing convictions must be merged into his first degree burglary

conviction. We agree.

19
A. Standard of Review and Applicable Law

¶ 48 We review a defendant’s claim that their conviction violates

their constitutional protection against double jeopardy de novo.

Garcia v. People, 2023 CO 41, ¶ 13.

1. Double Jeopardy

¶ 49 The United States and Colorado Constitutions prohibit placing

someone in jeopardy twice for the same offense. U.S. Const.

amends. V, XIV; Colo. Const. art. II, § 18. “As relevant here, these

‘[c]onstitutional double-jeopardy protections preclude the

imposition of multiple punishments when the General Assembly

has not “conferred specific authorization for multiple

punishments.”’” Whiteaker v. People, 2024 CO 25, ¶ 10 (quoting

Page v. People, 2017 CO 88, ¶ 8).

¶ 50 “[T]he General Assembly has not authorized multiple

punishments in the form of two convictions for the same conduct

when the lesser offense is included in the greater offense.” Id.

“Accordingly, multiplicitous convictions run afoul of double

jeopardy principles.” Id. Thus, a sentencing court must merge an

offense when “[i]t is established by proof of the same or less than all

20
the facts required to establish the commission of the offense

charged.” § 18-1-408(1)(a), (5)(a), C.R.S. 2025.

¶ 51 An offense is a lesser included offense if “at least one of the

ways to commit the greater offense necessarily establishes all the

elements of the lesser offense.” Whiteaker, ¶ 18. When the General

Assembly defines a statutory term, and the statute is unambiguous,

we must apply that definition as written. People v. Alaniz, 2016

COA 101, ¶¶ 22-23.

¶ 52 In addition to lesser included offenses, a second type of

multiplicity “involves a series of repeated acts that are charged as

separate crimes even though they are part of a continuous

transaction and therefore actually one crime.” Woellhaf v. People,

105 P.3d 209, 214 (Colo. 2005). Whether convictions must be

merged because they are multiplicitous is a question of law that we

review de novo. People v. Robinson, 2022 COA 124, ¶ 8.

¶ 53 When determining whether two or more charged offenses are

factually distinct and thus may support more than one conviction,

we may consider

[(1)] whether the acts charged have occurred at
different times, were separated by intervening
events, or occurred at the same place;

21
[(2)] whether there are separate instances of
volitional acts involving a new volitional
departure . . . leading to a fresh impulse; and
[(3)] whether the defendant had time to reflect
before embarking on a “new outrage.”

People v. Manzanares, 2020 COA 140M, ¶ 64 (quoting Quintano v.

People, 105 P.3d 585, 591-92 (Colo. 2005)). We may also consider

the defendant’s intent in committing the various acts. People v.

Wagner, 2018 COA 68, ¶ 13. “[N]o one factor is dispositive and the

inquiry ultimately focuses on ‘all the evidence introduced at trial to

determine whether the evidence on which the jury relied for

conviction was sufficient to support distinct and separate offenses.’”

Id. (quoting Quintano, 105 P.3d at 592).

2. First Degree Burglary, Second Degree Assault, and Menacing

¶ 54 The statute defining first degree burglary provides as follows:

A person commits first degree burglary if the
person knowingly enters unlawfully, or
remains unlawfully after a lawful . . . entry, in
a[n] . . . occupied structure with intent to
commit therein a crime . . . against another
person . . . and if in effecting entry or while in
the . . . occupied structure or in immediate
flight therefrom, the person . . . assaults or
menaces any person, . . . or the person . . .
uses a deadly weapon or possesses and
threatens the use of a deadly weapon.

§ 18-4-202(1), C.R.S. 2025 (emphasis added).

22
¶ 55 Under the statute’s plain language, a person may commit first

degree burglary by unlawfully entering or remaining in an occupied

structure with the intent to commit a crime against another person

and, while in the structure, either assaulting or menacing another

person or possessing a deadly weapon.

B. Analysis

¶ 56 Johnson contends that his separate convictions for second

degree assault and menacing must merge into the first degree

burglary conviction because both offenses are expressly designated

as means by which a person can commit first degree burglary. See

Whiteaker, ¶ 27 (“Here, the district court had no authority to

sentence [the defendant] for both burglary and trespass — a greater

offense and its lesser-included offense.”); People v. Ramirez, 18 P.3d

822, 830 (Colo. App. 2000) (“The elements of assault or menacing

must be proven in order to sustain a conviction for first degree

burglary as it was charged and instructed in this case.”).

¶ 57 The People concede that both menacing and second degree

assault are lesser included offenses of first degree burglary. But

they argue that these convictions should not merge because, as

part of the sentence enhancer count, the jury found that Johnson

23
possessed a gun, and that fact could have formed the predicate for

a first degree burglary conviction. We reject this argument for two

reasons.

¶ 58 First, the jury instruction defining first degree burglary in this

case referred only to second degree assault and menacing as the

predicates for the first degree burglary charge. In other words, the

elemental instruction for the first degree burglary count did not

refer to the possession or use of a deadly weapon.

¶ 59 These circumstances distinguish People v. Lucas, 232 P.3d

155, 167 (Colo. App. 2009), abrogated on other grounds by, People v.

Miller, 2024 COA 66, upon which the People rely, from this case. In

Lucas, the elemental instruction on the first degree burglary charge

allowed the jury to convict the defendant if “the defendant assaulted

or menaced [the victim], or the defendant was armed with a deadly

weapon.” Id. But in the present case, the elemental instruction for

first degree burglary allowed the jury to convict Johnson only if,

during the burglary, he “committed the crime of assault or the

crime of menacing against any person.” In other words, the

instruction did not permit the jury to convict Johnson of first degree

burglary based on his use or possession of a gun during the

24
burglary. Similarly, the charging document referred only to assault

and menacing, not the use or possession of a gun, when describing

the first degree burglary charge.

¶ 60 Therefore, the jury’s finding with respect to Johnson’s use or

possession of a gun on the sentence enhancer count cannot serve

as a predicate for the first degree burglary charge.

¶ 61 Nor are we persuaded by the People’s assertion that Callis v.

People, 692 P.2d 1045 (Colo. 1984), requires the merger of only the

menacing charge. In that case, the defendant was convicted of

felony murder and the predicate felonies of first degree burglary,

robbery, and first degree sexual assault. Id. at 1049. On appeal,

the supreme court held “that when a defendant is convicted of

multiple felonies, all of which are alleged as the legal predicates for

the commission of felony murder, that felony which most directly

contributes to the death of the victim should serve as the essential

element of the felony murder conviction.” Id. at 1054. The court

went on to determine that first degree sexual assault most directly

contributed to the victim’s death, and therefore, that count alone

merged into the felony murder count. Id. at 1055.

25
¶ 62 Applying the logic of Callis, the People urge us to merge only

the menacing charge, thereby maximizing the jury’s verdict on the

remaining counts. See Ramirez, 18 P.3d at 831 (“[I]n deciding

which convictions to retain, a court should enter as many

convictions and impose as many sentences as are legally possible so

as fully to effectuate the jury’s verdict.”).

¶ 63 Johnson, however, urges us to follow People v. Torrez, 2024

COA 11, ¶ 25, in which a division of this court concluded that

convictions for second degree assault and attempted assault

merged into the defendant’s conviction for first degree burglary.

But Torrez is distinguishable because attempted assault is a lesser

included offense of second degree assault. Johnson’s predicate

convictions were for menacing and second degree assault, and

menacing is not necessarily a lesser included offense of second

degree assault. See People v. Truesdale, 804 P.2d 287, 289 (Colo.

App. 1991) (“[U]nder the allegations and evidence appearing in the

record here, we conclude that felony menacing is not a lesser

included offense of second degree assault.”).

¶ 64 Nonetheless, Johnson argues — and the People do not

contest — that the menacing, second degree assault, and first

26
degree burglary charges all arose out of the same conduct. Indeed,

as previously explained, the charging document describes the

menacing and second degree assault charges as predicate offenses

integral to first degree burglary charge. And that is the way the

case was presented and argued by the People. The following

excerpts from the People’s closing argument are illustrative:

And then, when Mr. Johnson wasn’t getting
what he wanted anymore, he started to use
that gun, and he used it to not only assault
her but placed her in fear of losing her life.

....

Ladies and gentlemen, when Ms. [King]
declined to perform oral sex on the defendant,
he pulled out his firearm and he pointed it at
her; that is threat of physical action . . . .
Pointing a firearm — a firearm she knew to be
loaded at her, being angry, screaming,
approaching her, physically assaulting her
with that weapon, struggling over that weapon,
making her believe that she was not going to
survive the early morning hours of June 4th of
2020. Ladies and gentlemen, there is no doubt
that Mr. Johnson committed the crime of
menacing.

....

[King] tells you in that 9-1-1 call that he
pointed that gun at her and then assaulted her
repeatedly with it.

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¶ 65 As charged, presented, and argued by the People, menacing

and second degree assault were part of a single continuous event

that was not separated by time or space. The victim was the same,

and Johnson’s apparent motives — whether to coerce King into

acquiescing in his demands for sexual favors or abuse her for

declining his advances — were the same. Thus, we agree with

Johnson that the menacing conviction was multiplicitous to the

assault charge.

¶ 66 Finally, Johnson and the People agree — as do we — that

menacing and second degree assault are both lesser included

offenses of first degree burglary. As the supreme court recently

held in Whiteaker,

After Reyna-Abarca [v. People, 2017 CO 15], it
no longer matters whether the greater offense
can be committed in a way that wouldn’t
encompass the lesser offense. An offense is a
lesser-included offense if at least one of the
ways to commit the greater offense necessarily
establishes all the elements of the lesser
offense.

Whiteaker, ¶ 18 (emphasis added). A conviction for first degree

burglary can be based on either the commission of second degree

assault or menacing while engaging in the other conduct needed to

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establish burglary. And the elements instruction on first degree

burglary included both assault and menacing as predicates, and

the jury returned guilty verdicts on all three of those offenses.

Thus, Johnson’s second degree assault and menacing convictions

are both lesser included offenses of burglary.

¶ 67 These circumstances also distinguish Callis. Recall that Callis

involved a conviction for felony murder, with predicate offenses of

first degree burglary, robbery, and first degree sexual assault. 692

P.2d at 1049. The court merged the first degree sexual assault

conviction because it was the most direct cause of the victim’s

death. But the court did not merge the first degree burglary and

robbery charges because those crimes were “not encompassed by

the greater offense of felony murder.” Id. at 1055. In this case,

however, under both the one continuous event and the clarified

strict element tests, second degree assault and menacing merge

into the first degree burglary conviction. See Whiteaker, ¶¶ 17-18;

Woellhaf, 105 P.3d at 214.

V. Disposition

¶ 68 Johnson’s first degree burglary conviction is affirmed. We

remand the case to the trial court to amend the mittimus to reflect

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the merger of Johnson’s second degree assault and menacing

convictions into the first degree burglary conviction.

JUDGE J. JONES and JUDGE GROVE concur.

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