Peo v. Hampton

23CA1684 Peo v Hampton 01-09-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA1684
City and County of Denver District Court No. 22CR2442
Honorable Karen L. Brody, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Rashad A. Hampton,

Defendant-Appellant.

JUDGMENT AFFIRMED AND CASE
REMANDED WITH DIRECTIONS

Division VI
Opinion by JUDGE WELLING
Brown and Moultrie, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced January 9, 2025

Philip J. Weiser, Attorney General, Josiah Beamish, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Nicole M. Mooney, Alternate Defense Counsel, Golden, Colorado, for Defendant-
Appellant
¶1 Defendant, Rashad A. Hampton, appeals the judgment of

conviction entered upon jury verdicts finding him guilty of felony

second degree assault of a peace officer while lawfully confined or in

custody, in violation of section 18-3-203(1)(f), C.R.S. 2024, and

misdemeanor third degree assault. Hampton contends that

because he wasn’t lawfully confined or in custody at the time of the

alleged assault, the prosecution didn’t present sufficient evidence to

prove the felony assault conviction and that the misdemeanor

assault conviction should be merged into the felony assault

conviction. We disagree and, therefore, affirm the judgment.

I. Background

¶2 On the morning in question, Hampton was in a courtroom in

the Denver District courthouse regarding an unrelated case. While

waiting for his case to be called, sheriff’s deputies became aware

that warrants had been issued for Hampton’s arrest. After receiving

verbal confirmation from the National Crime Information Center

(NCIC) that Hampton had active warrants for his arrest, the

deputies informed Hampton’s attorney of the warrants and that he

1
would be taken into custody.1 Hampton’s attorney entered the

courtroom and pulled Hampton aside to inform him of this news.

Upon hearing this news, Hampton became agitated and wanted to

know the basis for the warrants, which wasn’t known by his

attorney or the sheriff’s deputies at the time.

¶3 Deputy Telisma was stationed inside the courtroom, and, after

confirming the warrants, Deputy Lukajic entered the courtroom and

stood near the doors. Hampton remained seated when his case was

called, and, at the conclusion of the case, the judge instructed the

deputies to take Hampton into custody. Deputy Telisma

approached Hampton from the front and told him to stand up and

give his personal belongings to his girlfriend, who was present in

the courtroom. Hampton complied with the order but remained

agitated and denied having any warrants. Deputy Telisma informed

Hampton that he was going to touch him and reached for

Hampton’s wrist. Hampton pulled away and told Deputy Telisma

not to touch him yet.

1 “The NCIC computer system provides police officers throughout

the country with information about outstanding warrants.” See
People v. Fields, 785 P.2d 611, 612 n.2 (Colo. 1990).

2
¶4 Deputy Lukajic, who had approached Hampton from behind,

again informed Hampton that he would be touched and reached for

Hampton’s wrist. Hampton pushed Deputy Lukajic. When Deputy

Lukajic again attempted to seize Hampton’s wrist, Hampton

grabbed the deputy and pushed him into the courtroom door.

Hampton and Deputy Lukajic then fell to the floor, and Deputy

Lukajic’s back struck a courtroom bench.

¶5 An altercation ensued, during which additional deputies,

including Deputy Goularte, responded to a call for assistance and

attempted to get Hampton to comply with their orders to put his

hands behind his back so that he could be handcuffed. The

deputies used a taser to obtain Hampton’s compliance and place

him in handcuffs.

¶6 The State charged Hampton with two counts of second degree

assault of a peace officer causing serious bodily injury (naming

Deputies Lukajic and Goularte as victims) and three counts of

second degree assault of a peace officer while lawfully confined or in

custody (naming Deputies Goularte, Lukajic, and Telisma as the

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victims).2 The jury found Hampton guilty of one count of the lesser

offense of misdemeanor third degree assault and of one count of

second degree assault of a peace officer while lawfully confined or in

custody. Deputy Lukajic was the victim for each count. The jury

acquitted Hampton of the other charges. The district court

sentenced Hampton to one year in prison on the felony assault

conviction and to a consecutive 365 days in jail on the

misdemeanor conviction.

II. Sufficiency of the Evidence

¶7 Hampton asserts that the evidence was insufficient to support

his second degree assault conviction because it didn’t adequately

establish that his allegedly criminal conduct occurred when he was

confined or in custody or that any such custody was lawful. We

address and reject these contentions.

A. Legal Authority and Standard of Review

¶8 To satisfy due process, the prosecution is required to prove all

elements of a crime beyond a reasonable doubt. Montez v. People,

2 Hampton was originally also charged with a resisting arrest count,

which was later dismissed. He was also originally charged with
second degree assault causing bodily injury, but the prosecution
later amended the count to allege serious bodily injury.

4
2012 CO 6, ¶ 21 (first citing U.S. Const. amend. XIV, § 1; and then

citing Colo. Const. art. II, § 25). As relevant here, a person commits

second degree assault if, “[w]hile lawfully confined or in custody,

[they] knowingly and violently appl[y] physical force against the

person of a peace officer . . . engaged in the performance of [their]

duties.” § 18-3-203(1)(f).

¶9 While “[s]ection 18-3-203(1)(f) may most often be applicable in

circumstances in which a peace officer is attempting to effect a

formal arrest,” see People v. Ortega, 899 P.2d 236, 238 (Colo. App.

1994), a formal arrest isn’t required before a person may be deemed

to be “in custody” for purposes of the statute. See People in Interest

of D.S.L., 134 P.3d 522, 525 (Colo. App. 2006); People v. Rawson, 97

P.3d 315, 323 (Colo. App. 2004); Ortega, 899 P.2d at 238. Instead,

when a person subject to an arrest resists that arrest, the person is

in custody after an arrest has been “effected.” Thomas v. People,

2021 CO 84, ¶ 15; People v. Armstrong, 720 P.2d 165, 169 (Colo.

1986). To effect an arrest for custodial purposes under section 18-

3-203(1)(f), all that is required is that “the peace officer . . . apply a

level of physical control over the person resisting the arrest so as to

reasonably ensure that the person does not leave.” Armstrong, 720

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P.2d at 169; see also Wieder v. People, 722 P.2d 396, 398 (Colo.

1986); D.S.L., 134 P.3d at 525; Rawson, 97 P.3d at 323; Ortega,

899 P.2d at 238.

¶ 10 The point at which a person is “in custody” is pivotal to the

determination of whether a defendant is guilty of second degree

assault as defined in section 18-3-203(1)(f). Wieder, 722 P.2d at

398; Armstrong, 720 P.2d at 168-69. This is so because, “up until

the point when the arrest is effected, a person may commit resisting

arrest but not second degree assault, and once the arrest is

effected, a person may commit second degree assault but not

resisting arrest.” Thomas, ¶ 15 (citing Armstrong, 720 P.2d at 169).

The determination of whether, based on the totality of the

circumstances, a person is in custody for purposes of section 18-3-

203(1)(f) is, however, within the province of the jury. See Wieder,

722 P.2d at 398; Armstrong, 720 P.2d at 169.

¶ 11 We review sufficiency of the evidence claims de novo to

determine whether the evidence presented was sufficient in both

quality and quantity to sustain a conviction. McBride v. People,

2022 CO 30, ¶ 38; People v. Roggow, 2013 CO 70, ¶ 13. “In so

doing, we must determine whether the relevant evidence, when

6
viewed as a whole in the light most favorable to the prosecution, is

sufficient to support a conclusion by a reasonable mind that the

defendant is guilty of the charges beyond a reasonable doubt.”

Roggow, ¶ 13. “A verdict cannot rest on guessing, speculation,

conjecture, or a mere modicum of relevant evidence.” McBride,

¶ 38.

¶ 12 “An appellate court may not serve as a thirteenth juror and

consider whether it might have reached a different conclusion than

the jury.” People v. Harrison, 2020 CO 57, ¶ 33. Instead, we afford

the prosecution the benefit of every reasonable inference that might

be fairly drawn from the evidence, and, where reasonable minds

could differ, deem the evidence sufficient to sustain a conviction.

Thomas, ¶ 10; People v. Alemayehu, 2021 COA 69, ¶ 18.

¶ 13 “It is the fact finder’s role to weigh the credibility of witnesses,

to determine the weight to give all parts of the evidence, and to

resolve conflicts, inconsistencies, and disputes in the evidence.”

People v. Poe, 2012 COA 166, ¶ 14. Therefore, determinations on

issues of credibility and weight will not be disturbed on appeal

“unless the evidence is legally insufficient to support a finding of

guilt beyond a reasonable doubt.” People v. Padilla, 113 P.3d 1260,

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1261 (Colo. App. 2005). “The jury, not the court, must perform the

fact-finding function when conflicting evidence — and conflicting

reasonable inferences — are presented” and, therefore, in a

sufficiency of the evidence inquiry, “[an appellate] court must not

invade the province of the jury by second-guessing its conclusion

when the record supports the jury’s findings.” People v. Perez, 2016

CO 12, ¶ 31.

B. “Confined or In Custody” Element

¶ 14 Hampton argues that the evidence didn’t sufficiently establish

that he was in custody “at the point that he put his hands on

[Deputy] Lukajic’s chest that resulted in [Deputy] Lukajic’s injuries

from falling into the door and bench.” He instead claims that the

evidence supports a finding that his conduct constituted, at most,

the crime of resisting arrest. We aren’t persuaded.

¶ 15 At trial, Deputy Telisma testified that, before the incident

became physical, Deputy Lukajic was standing near the courtroom

doors, which were the courtroom’s only public entrance and exit.

Deputies Telisma and Lukajic stated that, at that point, Hampton

wouldn’t have been permitted to leave. The deputies also agreed

that Hampton knew he would be taken into custody on the

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warrants and that he wasn’t free to leave the courtroom. After his

unrelated case had concluded, the judge instructed the deputies to

take Hampton into custody, and Deputies Telisma and Lukajic

accordingly surrounded him and attempted to grab his wrist. The

prosecution introduced into evidence video recordings from the

courtroom surveillance system and the deputies’ body cameras,

which captured these events and the ensuing physical altercation.

¶ 16 Hampton’s girlfriend confirmed that, before his unrelated case

was called, Hampton had been notified that he had warrants for his

arrest and that he would be taken into custody at the end of the

proceeding. She said that, when told about the warrants, Hampton

looked to her and said, “She did it again.”

¶ 17 Hampton testified at trial and admitted that his attorney had

notified him about the warrants before the unrelated case was

called. And he acknowledged that his statement, “She did it again,”

reflected his belief that a person he knew had accused him of

something that caused the warrants to be issued. Hampton further

testified that, when Deputy Telisma told him to give his personal

belongings to his girlfriend, he knew that he would be placed into

custody and that he wasn’t attempting to leave the courthouse.

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¶ 18 A captain with the Denver County Sheriff’s Department, who

was qualified as an expert in use of force and investigations,

testified without objection that, in order to ensure an officer’s safety

when taking someone into custody, the officer would take control of

the person’s wrist and place it behind their back to apply the

handcuffs. The captain also opined that Deputy Telisma’s and

Deputy Lukajic’s attempts to grab Hampton’s wrist were

appropriate uses of force.

¶ 19 Viewing this evidence in the light most favorable to the

prosecution and affording the prosecution the benefit of every

reasonable inference that may be drawn therefrom, we conclude

that the evidence was sufficient for a reasonable jury to find beyond

a reasonable doubt that, at the time Hampton assaulted Deputy

Lukajic, he was in custody because the deputies had established a

level of physical control over Hampton so as to reasonably ensure

that he wouldn’t leave the courtroom. See People v. Caldwell, 43

P.3d 663, 672 (Colo. App. 2001) (“If the prosecution presents

evidence from which the trier of fact may properly infer the

elements of the crime, the evidence is sufficient to sustain the

conviction.”); Clark v. People, 232 P.3d 1287, 1293 (Colo. 2010)

10
(“Jurors must rely on the evidence presented at trial and their own

common sense to determine the question of guilt.”).

¶ 20 Specifically, we note that (1) the deputies had positioned

themselves in the courtroom to prevent Hampton from leaving;

(2) Hampton had been informed by the deputies, his attorney, and

the court that he would be taken into custody on the arrest

warrants; (3) Hampton assumed the warrants may have been

issued based on the accusations of someone known to him;

(4) Deputy Telisma had instructed Hampton to give his personal

items to his girlfriend before being taken into custody; (5) Hampton

complied with this instruction and acknowledged that, when

providing the items to his girlfriend, he knew he would be taken

into custody, and wasn’t attempting to leave the courthouse; and

(6) the deputies made multiple attempts to grab Hampton’s wrist to

apply handcuffs. See D.S.L., 134 P.3d at 524-25 (defendant was in

custody for purposes of section 18-3-203(1)(f) where officers told

defendant to step out of his car, told him he would be handcuffed

and started to handcuff him); Rawson, 97 P.3d at 323-24

(defendant was in custody for purposes of section 18-3-203(1)(f)

where police stopped defendant’s car with stop sticks, pointed a

11
gun at the defendant and grabbed the defendants arm several

times).

¶ 21 Hampton relies on Armstrong and Thomas to support his

position that “only after [he] was tased and handcuffed was

sufficient physical control exercised over him for him to be

considered in custody.” Therefore, he argues, he at most committed

the offense of resisting arrest. We aren’t persuaded that these cases

compel a different result.

¶ 22 The relevant language from Armstrong that Hampton relies on

is that

[o]ne of the factors in making . . . a
determination [as to whether the defendant
was guilty of both resisting arrest and second
degree assault, or whether he was guilty only
of resisting arrest or only of second degree
assault] shall be whether the actions of [the
defendant], which caused injury to the officers,
were continuous, stemming from his efforts to
resist arrest, or whether there was a break
between his actions to thwart [the] officer[’s]
. . . efforts to arrest him and the actions which
lead to the injury of [the] officers . . . .

Armstrong, 720 P.2d at 169. Hampton argues that his actions were

continuous and stemming from an effort to resist the officers’

attempts to handcuff him.

12
¶ 23 In Thomas, the supreme court concluded that the defendant’s

conduct after he was in custody couldn’t be relied on to resolve a

sufficiency of the evidence challenge to his conviction for resisting

arrest. Id. at ¶¶ 1-2, 11-18. In reaching this conclusion, the court

held that the defendant’s arrest was effected, and he was thus in

custody, once the deputies had handcuffed him and that “[t]hat was

the line of demarcation at which the crime of resisting arrest ended

and the potential to commit the crime[] of second degree assault . . .

began.” Id. at ¶ 17. Hampton claims that, when he was

handcuffed, “[i]t is only at that point that the officers established

physical control over [him] as required in Thomas.”

¶ 24 But the instructiveness of these cases is limited with respect

to the sufficiency of the evidence issue before us. We agree that

Armstrong says that whether a defendant’s actions were continuous

or broken is a factor to be considered in determining the type of

offense committed. But, in that case, the supreme court made clear

that such determinations are for the trier of fact. Armstrong, 720

P.2d at 169. And, in Thomas, the court’s conclusion that the

defendant was definitively in custody once he was handcuffed was

based on the factual circumstances of that particular case. Id. at

13
¶¶ 2, 17. To the extent that the court in Thomas addressed the line

between resisting arrest and committing an in-custody assault, the

court didn’t reach the question of at what point before the

handcuffing a factfinder could have found the suspect was in

custody; it simply held that, under the facts and circumstances of

Thomas, the handcuffing was the latest point at which resisting

arrest could have been committed. After all, as noted above, formal

arrest and use of handcuffs aren’t required to satisfy the “in

custody” element of second degree assault as defined in section 18-

3-203(1)(f).

¶ 25 The jury’s guilty verdict on second degree assault against

Deputy Lukajic necessarily required a finding that Hampton was in

custody before Hampton applied physical force against him. See

People v. Mosely, 2021 CO 41, ¶ 21 (by finding the defendant guilty

of the charged offense, the jury necessarily found that the

prosecution had proven beyond a reasonable doubt the elements of

the offense). As concluded above, we deem the evidence sufficient

to support the jury’s finding that the deputies had effected an arrest

of Hampton before his initial attack on Deputy Lukajic.

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C. “Lawful” Custody Element

¶ 26 Hampton also asserts that, even if he was in custody at the

time of his assaultive conduct, the custody wasn’t lawful because

the arresting officers didn’t possess a copy of the warrant when they

arrested him, as required by 16-3-102, C.R.S. 2024. He also argues

that the constitutional right to due process requires officers to

provide the warrant to an arrestee upon request. We disagree.

¶ 27 Section 16-3-102(1)(a) provides that “[a] peace officer may

arrest a person when . . . [h]e has a warrant commanding that such

person be arrested. . . .” We reject Hampton’s interpretation of the

word “has” to require a peace officer to be in physical possession of

the warrant. Instead, an arrest is deemed to be lawful when an

officer relies on confirmation of the existence of a validly issued

arrest warrant. See People v. Gouker, 665 P.2d 113, 115-16 (Colo.

1983) (where the arresting officers learned of an outstanding, out-

of-state arrest warrant for the defendant, the valid warrant provided

the officers with sufficient probable cause to lawfully arrest the

defendant). And although Hampton questioned the reasons for the

warrants when he was arrested, he didn’t later challenge their

validity. See, e.g., People v. Mitchell, 678 P.2d 990, 993, 994-97

15
(Colo. 1984) (defendant’s arrest, which was “based solely on [the]

[o]fficer[’s] . . . reliance upon the dispatcher’s message that there

was an outstanding warrant for the defendant,” was unlawful

because the arrest warrant was erroneously issued), superseded by

statute on other grounds as stated in People v. Woods, 885 P.2d 287

(Colo. App. 1994); Fields, 785 P.2d at 613 (inaccurate warrant

report in the NCIC was insufficient only because no warrant had

actually been issued). Accordingly, we reject Hampton’s contention

that his arrest wasn’t lawful because the deputies effecting that

arrest didn’t possess a copy of the arrest warrant.

¶ 28 Hampton doesn’t provide any argument or authority to

support his constitutional due process argument that an arrestee is

entitled to receive the warrant upon request, so we decline to

address it. See People v. Houser, 2020 COA 128, ¶ 24 (we will not

consider a bald legal proposition presented without argument or

development).

III. Merger

¶ 29 Lastly, Hampton argues that the third degree assault

conviction should have been merged with the second degree assault

conviction. We disagree.

16
¶ 30 The Double Jeopardy Clauses of the United States and

Colorado Constitutions protect against the imposition of multiple

punishments for the same offense. Reyna-Abarca v. People, 2017

CO 15, ¶ 49. As relevant here, double jeopardy precludes a

defendant from being “convicted of two offenses for the same

conduct if the lesser offense is included in the greater.” Page v.

People, 2017 CO 88, ¶ 9 (citing § 18-1-408(1)(a), C.R.S. 2024).

¶ 31 “An offense is included in another offense when, as pertinent

here, ‘[i]t is established by proof of the same or less than all the

facts required to establish the commission of the [other] offense.’”

Thomas, ¶ 23 (quoting § 18-1-408(5)(a)). In other words, “an offense

is a lesser included offense of another offense if the elements of the

lesser offense are a subset of the elements of the greater offense,

such that the lesser offense contains only elements that are also

included in the elements of the greater offense.” Reyna-Abarca,

¶ 64. “A conviction for an offense that is a lesser included offense of

a greater offense must merge into the conviction for the greater

offense.” Page, ¶ 9.

17
¶ 32 Whether two or more convictions must merge is a question of

law that we review de novo. Id. at ¶ 6; People v. Barry, 2015 COA 4,

¶ 92.

¶ 33 Hampton’s third degree assault conviction doesn’t contain only

elements that are also included in the elements of his second degree

assault conviction. Specifically, third degree assault requires a

defendant to “cause bodily injury to another person.” § 18-3-

204(1)(a), C.R.S. 2024. In contrast, second degree assault as

defined in section 18-3-203(1)(f) doesn’t require proof of any injury

to anybody.

¶ 34 Thus, because proof of the elements of second degree assault,

as defined in section 18-3-203(1)(f), wouldn’t establish a third

degree assault conviction, the convictions don’t merge. See People

v. Rock, 2017 CO 84, ¶ 16 (“[A]ny set of elements sufficient for

commission of [a] lesser offense that is necessarily established by

establishing the statutory elements of a greater offense constitutes

an included offense.”).

IV. Mittimus

¶ 35 Although not raised by the parties, our review of the record

indicates that Hampton’s mittimus mistakenly reflects that he was

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convicted of second degree assault pursuant to section 18-3-

203(1)(c.5). On remand, the trial court must amend the mittimus

to reflect a conviction for the class 6 felony of second degree assault

pursuant to sections 18-3-203(1)(f) and (2)(a). See People v. Brown,

2014 COA 155M-2, ¶ 40 (noticing an error in the mittimus not

raised by any party and ordering the trial court to correct it on

remand).

V. Disposition

¶ 36 The judgment of conviction is affirmed, and the case is

remanded for correction of the mittimus.

JUDGE BROWN and JUDGE MOULTRIE concur.

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