Opinion
No. 78-562
Decided August 2, 1979. Rehearing denied August 16, 1979. Certiorari granted October 22, 1979.
Plaintiff appealed his jury conviction of felony menacing.
Reversed
1. CRIMINAL LAW — Unloaded Rifle — Not A Deadly Weapon. An unloaded rifle, no more than a "simulated pistol" is not a deadly weapon because, except for its use as a bludgeon, it cannot cause death or serious bodily injury.
Appeal from the District Court of Boulder County, Honorable Rex H. Scott, Judge.
J. D. MacFarlane, Attorney General, David W. Robbins, Deputy Attorney General, Edward G. Donovan, Special Assistant Attorney General, William Morris, Assistant Attorney General, for plaintiff-appellee.
J. Gregory Walta, Colorado State Public Defender, Richard D. Irvin, Deputy State Public Defender, for defendant-appellant.
Plaintiff Martin J. McPherson appeals his conviction by a jury of menacing, a class 5 felony, under § 18-3-206, C.R.S. 1973 (1978 Repl. Vol. 8). We reverse.
Defendant had an altercation with another man in a bar in Boulder, Colorado. From the entrance of the bar, he saw the other person walking towards a dormitory on the University of Colorado campus. Defendant then walked home, obtained a rifle and a box of shells, and drove to the dormitory.
One of the People's witnesses testified that she was a monitor in the lobby of the dormitory. Between 12:00 and 1:00 a.m. defendant entered the lobby carrying a rifle. He asked the monitor how to get to the roof or whether she had seen the person he had had a run in with at the bar. The witness testified that she did not answer, and that defendant then pointed the rifle at her.
Defendant then moved towards the elevator and motioned with the gun for the monitor to do the same. The elevator door opened and there were two persons standing inside. Defendant pointed the rifle at them and instructed them to step into the lobby. Defendant had all three people walk outside, and he followed. Defendant then left the dormitory, backed away from the trio with his rifle still pointed at them, and stated that he was sorry he frightened them and that he was looking for someone else. He was apprehended shortly thereafter and taken into custody.
Defendant was charged with felony menacing under § 18-3-206, C.R.S. 1973 (now in 1978 Repl. Vol. 8). The crime of menacing consists of knowingly placing or attempting to place another, by threat or physical action, in fear of imminent serious bodily injury. Menacing is a misdemeanor unless "committed by the use of a deadly weapon," in which case it is a felony.
At trial, the People put on no evidence to show that the rifle was loaded at the time of the offense. Defendant testified it was not loaded and that he had left the shells in his car. At the time of his arrest later that same night, he was holding the rifle in a gun case in one hand and the box of shells in the other.
After the evidence was presented, defendant tendered an instruction that to be a deadly weapon a firearm must be loaded with ammunition and capable of being fired. This was refused and, instead, the jury was instructed substantially in the words of § 18-1-901(3)(e), C.R.S. 1973 (now in 1978 Repl. Vol. 8), which defines a deadly weapon as:
"Any firearm, knife, bludgeon, or other weapon, device, instrument, material, or substance, whether animate or inanimate, which in the manner it is used or intended to be used is capable of producing death or serious bodily injury."
By 1979 amendment the statute now reads: "any firearm, whether loaded or unloaded. . . ." Colo. Sess. Laws 1979, ch. 169, at 731 (See House Bill 1080).
During its deliberations, the jury sent a question to the judge, asking whether an unloaded weapon constitutes a "deadly weapon." The judge answered that the jury had already been instructed on the law.
The principal question presented on this appeal is whether an unloaded firearm is a deadly weapon.
It is not contended that the rifle was deadly because it could have been used as a bludgeon. Cf. People v. Bowers, 42 Colo. App. 467, 600 P.2d 95 (1979).
The People contend that any firearm is a deadly weapon, regardless of whether it is loaded or unloaded, or capable of being fired. In support they cite this court's opinion in People v. Rice, 37 Colo. App. 346, 551 P.2d 1081 (1976), rev'd on other grounds, 193 Colo. 270, 565 P.2d 940 (1970). In Rice, however, this court held only that a pistol could be found to be a deadly weapon where there is evidence to show that it was loaded and capable of being fired, even though defendant presents some evidence to the contrary.
In Miller v. District Court, 193 Colo. 404, 566 P.2d 1063 (1977), our Supreme Court held that a firecracker in a beer bottle could be a deadly weapon within § 18-1-901(3)(e). In arriving at that conclusion, the court stated that a deadly weapon is an object "capable of producing death or serious injury." The court further indicated that "the real issue is whether, in the manner it was used, [the object] could have caused death or serious injury." In People v. Bowers, 42 Colo. App. 467, 600 P.2d 95 (1979), this court held that a whiskey bottle was a deadly weapon because of the manner of its use.
We conclude that an unloaded rifle, no more than a "simulated pistol," Hutton v. People, 156 Colo. 334, 398 P.2d 973 (1965), is not a deadly weapon because, except for its use as a bludgeon, it could not cause death or serious bodily injury. Accord, Hobbs v. State, 363 P.2d 357 (Alaska 1961); People v. Wood, 10 App. Div. 2d 231, 199 N.Y.S.2d 342 (1960).
Our resolution of this issue is supported by sound policy considerations. The General Assembly undoubtedly viewed menacing as a more serious crime when a deadly weapon was the menacing instrumentality because of the increased risk of actual harm to the person menaced. This increased risk, however, is not present when the firearm, which would be a deadly weapon if loaded and capable of being fired, is not loaded.
The jury instruction concerning the definition of a deadly weapon requested by the defendant should have been given, and the failure so to do constitutes reversible error. Since the jury could have chosen not to believe defendant's testimony that the gun was not loaded, and could instead have inferred, from the fact that defendant had ammunition, that the gun was loaded at the time of the offense, there must be a new trial.
If at the new trial the evidence is in conflict as to whether the gun was loaded, then the jury should be instructed on the lesser included offense of misdemeanor menacing.
Judgment reversed, and cause remanded for further proceedings.
JUDGE STERNBERG concurs.
JUDGE SMITH dissents.