People v. Simms.

2026 COA 51. No. 24CA0166. Menacing by Use of Firearm, Knife, or Bludgeon—Fist—Model Jury Instructions—Burden of Proof—Reasonable Doubt—Jury Question—Restitution Award.

June 18, 2026

Simms and his girlfriend, K.B., were staying in a motel when they had an argument that culminated with Simms punching K.B. and giving her a black eye. The next day, when K.B. returned to the motel room after work, the situation re-escalated, and throughout the evening, K.B. periodically left the motel room or locked herself in the room’s bathroom to escape from Simms. At one point, after K.B. had locked herself in the bathroom, Simms broke the door in half and barged in. The following morning, K.B.’s grandmother picked up K.B. and took her back to Utah, where K.B. sought medical treatment for her injuries. Hospital staff reported the domestic dispute to local law enforcement, who interviewed K.B. in Utah and referred the case to Lakewood police for further investigation. Simms was tried by a jury on (1) second degree kidnapping (seized and carried), (2) felony menacing, (3) felony second degree assault (strangulation), and (4) two counts of misdemeanor third degree assault (one for the black eye on the first night and the other for injuries caused on the second night). To elevate the menacing charge to a felony, the prosecution had to prove that Simms menaced “by the use of a firearm, knife, or bludgeon or a simulated firearm, knife, or bludgeon.” CRS § 18-3-206. The prosecution maintained that Simms menaced K.B. with a pocketknife. At the close of evidence, the trial court instructed the jury with the 2022 model instruction on the beyond a reasonable doubt standard and on the elements of menacing. The jury instructions included a definition of “knife” but not of “bludgeon,” and during deliberations, the jury asked whether a fist can be considered a bludgeon. The court didn’t clarify whether a fist can be a bludgeon under the statute and instructed the jurors to give that term its plain meaning. Simms was convicted of felony menacing and two misdemeanor assault charges. He was sentenced to two years in the custody of the Department of Corrections for the felony menacing conviction and ordered to pay nearly $9,500 in restitution to the Crime Victim Compensation Board (CVCB) for money the CVCB expended related to K.B.’s injuries.

On appeal, Simms contended that the trial court erred by instructing the jury using the 2022 model criminal jury instruction defining “reasonable doubt,” asserting this lowered the prosecution’s burden of proof. While Simms’s appeal was pending, three court of appeals divisions considered similar challenges to the 2022 model reasonable doubt instruction, and the majority of each concluded that the 2022 instruction doesn’t lower the prosecution’s burden of proof. See People v. Melara, 2025 COA 48, ¶¶ 22–23; People v. Schlehuber, 2025 COA 50, ¶¶ 16–17; People v. Berumen, 2025 COA 93, ¶ 14. The division here agreed with the reasoning of those majority opinions and adopted it to resolve Simms’s arguments. First, he argued that the 2022 model instruction didn’t emphasize the importance of a “lack of evidence” as clearly as the previous instruction. But while including that language might have been better, the court’s failure to include it here didn’t amount to error. Second, Simms argued that without the “hesitate to act” language, jurors don’t have essential guidance to understand reasonable doubt. However, omission of that phrase clarifies the reasonable doubt standard by discouraging courts from using analogies to explain it. Third, Simms asserted that the “real possibility” language in the instruction holds a defendant to a higher standard than the law requires. But the “real possibility” language explains the prosecution’s evidentiary threshold and instructs the jury not to acquit the defendant based on any conceivable doubt, no matter how improbable. This accurately expresses the prosecution’s burden of proof under the reasonable doubt standard. Fourth, Simms contended that the phrase “firmly convinced” in the court’s instruction improperly asked jurors to base their conclusions about a defendant’s guilt on their gut feelings rather than evidence showing that every element of a charge was proved. However, the phrase “firmly convinced,” which federal courts have consistently approved as an accurate expression of the reasonable doubt standard, correctly expresses a standard of “near certitude,” which is greater than highly probable but less than absolute certainty. Further, the court gave the jury additional proper instructions relevant to the prosecution’s burden of proof. Accordingly, the court did not err by giving the 2022 model instruction.

Simms also argued that the trial court erred by referring the jury to the original jury instructions in response to its question about whether a fist could be considered a bludgeon, and that this error warrants reversal of his felony conviction. The common meaning of “bludgeon” has a number of reasonable interpretations, and jurors expressed confusion as to the legal significance of that term given the case circumstances. The majority concluded that, as a matter of law, a fist cannot be a “bludgeon” or “simulated bludgeon” under the felony menacing statute because such interpretation is inconsistent with the statutory scheme and contrary to the statute’s recent legislative history. The trial court should have given a definite and unambiguous answer regarding the term’s meaning. It thus erred when it declined to clarify that a fist cannot be a bludgeon or simulated bludgeon. Further, the error was not harmless, because the jury’s question raises sufficient doubt about whether Simms was convicted based on his use of a pocketknife or on his use of his fists, which is not permitted under the statute.

Simms additionally asserted that the trial court erred by awarding $9,475.72 in restitution because the prosecution didn’t properly establish the amount of assistance CVCB provided. The majority agreed that the court’s restitution award must be vacated because the findings supporting the award are insufficient to determine whether the award was predicated on Simms’s felony menacing conviction, his misdemeanor convictions (which are uncontested), or some combination of each.

The felony menacing conviction was reversed, the restitution order was vacated, and the case was remanded for further proceedings.