People v. Trujillo.
2025 COA 22. No. 22CA1067. Model Jury Instructions—Attempt to Commit Retaliation Against a Witness or Victim—Specific Intent as an Element of Liability—Sufficiency of Evidence—As-Applied Constitutional Challenge—Specific Intent.
February 27, 2025
Smith and his former partner, Baucom, had an altercation while Smith drove with Baucom in Baucom’s truck. After Baucom indicated that she no longer wanted to continue their relationship, Smith threw Baucom’s cell phone out the window, and Baucom threw Smith’s wallet out the window. Smith refused to stop the truck or let Baucom out, so she jumped out at a red light. Smith drove away in the truck, and Baucom contacted police. Deputy Lawson arrested Smith shortly thereafter, and Smith’s mother, Trujillo, arrived on the scene. Trujillo told the officers that Baucom should have been arrested instead of Smith, and threatened to sue the officers for arresting Smith. Trujillo also asked about Smith’s wallet, which she believed to contain $1,500. Officers contacted Baucom for the wallet’s possible location and relayed the information to Trujillo. Baucom retrieved her truck and met her mother, Johnston, at a nearby gas station, where they noticed Trujillo parked across the highway. Baucom then drove to the police station to retrieve her phone, with Johnston following in her own car. As they drove, they saw Trujillo following closely behind Johnston, but Trujillo didn’t drive erratically or make any gestures. Trujillo pulled in behind Baucom’s and Johnston’s parked vehicles at the police station, and from her car Baucom said, “Where is [Smith]’s wallet or I’m going to beat your ass.” Baucom’s back was to Trujillo, and she didn’t react to Trujillo’s comment. Trujillo then drove away and was arrested shortly thereafter. A jury later convicted Trujillo under CRS § 18-8-706 of attempt to commit retaliation against a witness or victim as a lesser included offense of retaliation against a witness or victim.
On appeal, Trujillo argued that CRS § 18-8-706 applies only when the target of the defendant’s threats or harassment has already testified or has been scheduled to testify in a criminal proceeding, and because her conduct occurred before Baucom had been scheduled to testify, the evidence was insufficient as a matter of law. However, as construed in People v. Hickman, 988 P.2d 628 (Colo. 1999), that statute does not require that the victim must be scheduled to testify for it to apply.
Trujillo also contended that the evidence was insufficient to support a jury conclusion beyond a reasonable doubt that she had the specific intent to retaliate or seek retribution against Baucom because of Baucom’s status as a crime victim. Here, the evidence supports jury inferences that Trujillo (1) knew Smith had been arrested due to an altercation with Smith; (2) thought Smith was innocent; (3) thought Baucom, not Smith, should have been arrested; (4) was angry about Smith’s arrest; (5) followed Baucom and Johnston to a police station; and (6) threatened violence against Baucom. Based on these facts, a jury could infer that Trujillo followed and threatened Baucom with the intent to retaliate against her because she was angry about Baucom’s status as a victim in Smith’s alleged crime. Further, while the jury also heard evidence that Trujillo followed and threatened Baucom because she wanted to retrieve Smith’s wallet, the jury wasn’t required to find that Baucom’s status as a victim was the sole or primary motivation for Trujillo’s retaliatory conduct.
Trujillo further asserted that the trial court erred by not giving her tendered instruction on the specific intent requirement for retaliation. Under Hickman, the crime of retaliation requires that the defendant intend to retaliate against the victim or witness because of that person’s status as a witness to or victim of a crime. Here, while the given instructions for retaliation, attempt, and intent mirrored the statutory language and the model instructions, the given instructions did not adequately inform the jury of the specific intent required to commit retaliation against a witness or victim. Therefore, the jury could convict even if Trujillo’s retaliatory conduct was motivated by something other than the witness’s or victim’s relationship to the criminal proceeding. Trujillo’s proposed instruction would have cured this defect. Accordingly, the trial court abused its discretion by not giving her tendered instruction. Further, because this error resulted in the jury receiving incomplete information about an element of the offense, the error is constitutional in nature, and it was not harmless beyond a reasonable doubt.
Trujillo additionally contended that CRS § 18-8-706 is unconstitutional as applied to her because it penalized her statement that she was “going to beat [Baucom’s] ass,” which she asserted is protected speech. She maintained that the district court erred by concluding that this speech was unprotected because it constituted fighting words and a true threat. Here, while some of Trujillo’s conduct before and during her statement was aggressive, Trujillo didn’t get out of her car, she made the statement only once, and she drove away shortly after. Further, when Trujillo made the statement, the parties were in a police station parking lot, Baucom was on the phone with police when Trujillo spoke, and there was no evidence that Trujillo’s statement caused any breach of the peace. Accordingly, the statement and surrounding circumstances were not likely to incite a reasonable person to immediate physical violence. Therefore, the trial court erred by ruling that Trujillo’s statement constituted fighting words. The court expressed no opinion about whether Trujillo’s statement was a true threat because there was no factual finding on the issue.
The judgment of conviction was reversed and the case was remanded for a new trial.