Background
Michael Casey Simms was charged in Jefferson County following a multi-day domestic violence incident with his girlfriend, K.B., at a Lakewood motel. On the first night, Simms punched K.B. and gave her a black eye — a fact he admitted at trial. The following night, K.B. testified that Simms slapped, punched, kicked, and choked her, and repeatedly threatened her with a pocketknife, at one point breaking through the bathroom door where she had taken refuge. Simms denied using a pocketknife or choking K.B., though he acknowledged punching her and “getting physical.” After K.B.’s grandmother drove her to Utah, hospital staff reported the incident to police, and the case was referred to Lakewood investigators.
Simms was charged with five offenses: second-degree kidnapping, felony menacing, felony second-degree assault (strangulation), and two counts of misdemeanor third-degree assault. At trial, the prosecution’s theory for elevating menacing to a felony under § 18-3-206, C.R.S. 2025 was that Simms threatened K.B. with the pocketknife. The jury, however, sent a question to the court during deliberations asking whether a fist could be considered a “bludgeon” — another instrument listed in the felony menacing statute. The trial court declined to answer the question directly and instead told jurors to apply the term’s “plain and ordinary meaning.” The jury convicted Simms of felony menacing and both misdemeanor assault counts and acquitted him of kidnapping and felony assault. He was sentenced to two years in the Department of Corrections and ordered to pay $9,475.72 in restitution to the Crime Victim Compensation Board.
Simms appealed on three grounds: (1) that the 2022 model criminal jury instruction on reasonable doubt improperly lowered the prosecution’s burden of proof; (2) that the trial court erred by refusing to clarify that a fist cannot constitute a “bludgeon” under the felony menacing statute; and (3) that the restitution award was unsupported by the required documentation.
The Court’s Holding
The court reversed Simms’s felony menacing conviction on the ground that a fist cannot, as a matter of law, be a “bludgeon” or “simulated bludgeon” under § 18-3-206. Writing for the majority on this issue, Judges Moultrie and Taubman concluded that dictionary definitions of “bludgeon” are ambiguous enough to warrant resort to other tools of statutory construction, and those tools decisively cut against including a fist within the term’s scope. The majority identified three independent reasons: construing a fist as a bludgeon is inconsistent with the statutory scheme (fists are meaningfully different in kind from the firearms, knives, and bludgeons that elevate menacing to a felony); the People’s cited case law does not support the broader reading; and the statute’s recent legislative history is to the contrary. Because the jury’s question went to the heart of the felony element and the trial court failed to answer it clearly, the error was not harmless and required reversal.
On the reasonable doubt instruction, Judges Moultrie and Bernard upheld the 2022 model instruction, aligning with three prior divisions in People v. Melara, People v. Schlehuber, and People v. Berumen. The majority held that the instruction’s “real possibility” language accurately describes the prosecution’s evidentiary threshold without shifting the burden to the defense, that omission of the prior instruction’s “lack of evidence” language was not error, and that the “firmly convinced” phrase correctly conveys a standard of near-certitude. Judge Taubman dissented on this issue, concluding the “real possibility” language impermissibly lowered the prosecution’s burden.
All three judges agreed the restitution award of $9,475.72 must be vacated. Because the felony menacing conviction was reversed, it was unclear whether the award rested on that conviction, the surviving misdemeanor convictions, or a combination, rendering the findings insufficient. The court remanded for further proceedings, with instructions that the prosecution must supply the information required by § 18-1.3-603(10) before the court may apply the statute’s rebuttable presumption as to restitution amount.
Key Takeaways
- Under Colorado’s felony menacing statute (§ 18-3-206), a fist is not a “bludgeon” or “simulated bludgeon” as a matter of law — the term requires a weapon that is an external, inanimate object meaningfully similar in kind to a firearm or knife.
- When a jury asks a question during deliberations that the original instructions do not clearly answer, a trial court must respond with a concrete, unambiguous clarification — simply referring jurors back to undefined terms is reversible error where the question goes to a central element of guilt.
- Colorado’s 2022 model reasonable doubt instruction (COLJI-Crim. E:03) continues to withstand constitutional challenge; its “real possibility,” “firmly convinced,” and omission of “lack of evidence” language do not lower the prosecution’s burden of proof.
- A restitution award cannot stand where the underlying conviction that supported it has been reversed and the record does not permit the appellate court to determine which remaining convictions, if any, justified the amount.
Why It Matters
This decision resolves a novel question of Colorado criminal law with direct practical consequences for prosecutors charging felony menacing: a defendant who uses only his fists — no weapon, no object — cannot be elevated to a felony under the menacing statute on a “bludgeon” theory. Defense counsel now have clear authority to challenge any such charge at the jury-instruction stage, and trial courts are on notice that they must answer, not deflect, deliberation questions about the statutory meaning of charged elements.
The decision also adds to a growing body of Colorado Court of Appeals authority upholding the 2022 reasonable doubt instruction, even as the Colorado Supreme Court has granted certiorari in Teran-Sanchez v. People to resolve the broader constitutional question. Until the Supreme Court rules, Simms reinforces the prevailing approach in the intermediate courts — a landscape practitioners should monitor closely given the pending high-court review.