Opinion
No. 76-746
Decided July 14, 1977. Opinion modified and as modified petition for rehearing denied August 25, 1977.
Convicted by a jury of felony menacing, defendant appealed on basis that jury should have been instructed that intoxication may be considered in determining whether defendant had requisite specific intent.
Reversed
1. CRIMINAL LAW — Felony Menacing — Specific Intent Crime. Felony menacing is a specific intent crime.
2. Felony Menacing — Trial — Absence of Instructions — Specific Intent — — Voluntary Intoxication May Negate — Reversible Error. In trial of charge of felony menacing, there being evidence in the record to support such instructions, the jury should have been advised not only that menacing is a specific intent crime, but also that voluntary intoxication may negate the element of specific intent, and the absence of instructions to such effect constitutes reversible error.
Appeal from the District Court of the County of Jefferson, Honorable Roscoe Pile, Judge.
J. D. MacFarlane, Attorney General, Jean E. Dubofsky, Deputy Attorney General, Edward G. Donovan, Assistant Attorney General, James S. Russell, Assistant Attorney General, for plaintiff-appellee.
Walter L. Gerash, P.C., Jeffrey A. Springer, for defendant-appellant.
The defendant was convicted in August 1976, of five counts of felony menacing as defined by § 18-3-206, C.R.S. 1973. He contends on appeal that the trial court erred in refusing his tendered instructions that, although intoxication is not a defense to a criminal charge, it may nevertheless be considered by the jury in determining whether the defendant had the requisite specific intent to commit the crime of felony menacing. We agree that the trial court should have so instructed the jury, and, therefore, reverse the convictions.
[1] The People concede, and we agree, that there is abundant evidence in the record of the defendant's intoxication at the time he committed the acts which form the basis for these charges. It is thus evident that the tendered instructions should have been given, See People v. Cornelison, 192 Colo. 337, 559 P.2d 1102 (1977); §§ 18-1-804(1), and 18-1-805, C.R.S. 1973, if the crime of felony menacing, as defined in § 18-3-206, C.R.S. 1973, is a specific intent crime. We hold that it is.
Section 118-3-206, C.R.S. 1973, defines menacing as follows:
"A person commits the crime of menacing if, by any threat or physical action, he intentionally places or attempts to place another person in fear of imminent serious bodily injury."
Section 18-1-501(5), C.R.S. 1973 (1976 Cum. Supp.) provides:
"A person acts intentionally with respect to a result or to conduct described by a statute defining an offense when his conscious objective is to cause such result or to engage in such conduct."
These statutory provisions compel the conclusion that felony menacing is a specific intent crime. See People v. Cornelison, supra.
[2] The trial court refused the defendant's tendered instructions on menacing and on the affirmative defense of intoxication, which were in the form recommended by Colo. J.I. — Crim. 10:15 and 7:13, respectively. Further, the trial court instructed the jury concerning culpable mental state in the language of Colo. J.I. — Crim. 6:1, rather than defining specific intent as suggested in Colo. J.I. — Crim. 6:2. These deficiencies in the instructions constitute reversible error. The jury should have been advised not only that menacing is a specific intent crime, but also that voluntary intoxication may negate the element of specific intent, there being evidence in the record to support such an instruction.
We have reviewed the record in light of the defendant's challenge to the sufficiency of the evidence, and find his contentions to be without merit. Inferences to be drawn from the evidence are for the jury and not this court. People v. Medina, 185 Colo. 183, 522 P.2d 1233 (1974). There is sufficient evidence in this record to allow the jury to conclude that Lundborg had the capacity to form the specific intent required by the statute and that he did so.
The judgment is reversed and the cause is remanded for a new trial.
CHIEF JUDGE SILVERSTEIN and JUDGE ENOCH concur.