22CA1781 Peo v Jordan 07-25-2024
COLORADO COURT OF APPEALS
Court of Appeals No. 22CA1781
City and County of Denver District Court No. 20CR3807
Honorable Eric M. Johnson, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Chadwick Heath Jordan,
Defendant-Appellant.
JUDGMENT AFFIRMED
Division VII
Opinion by JUDGE KUHN
Tow and Gomez, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced July 25, 2024
Philip J. Weiser, Attorney General, Carmen Moraleda, Senior Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee
Robinson & Henry, P.C., Benjamin C. Whitney, Denver, Colorado, for
Defendant-Appellant
1
¶ 1 Defendant, Chadwick Heath Jordan, appeals the judgment of
conviction entered on a jury verdict finding him guilty of second
degree assault. He also appeals his habitual offender adjudication
and the constitutionality of his thirty-two-year prison sentence. We
affirm.
I. Background
¶ 2 This appeal arises out of a physical altercation between
Jordan and the victim. A surveillance video of the incident showed
• Jordan driving his truck into a downtown Denver alley and
stopping with the victim right next to the driver’s side door;
• the victim talking to Jordan, then raising a long stick in
Jordan’s direction;
• Jordan driving forward slightly before stopping again;
• Jordan getting out of his truck, and the victim almost
simultaneously swinging the stick and striking Jordan in
the left forearm;
• Jordan then hitting the victim several times in the head
with an object — later identified as an aluminum baseball
bat — and wrestling the victim to the ground;
2
• Jordan getting on top of the victim and repeatedly punching
the victim for the next fifteen seconds; and
• Jordan standing up and hitting the victim one more time
before getting his bat and driving off.
¶ 3 Both men testified at trial, and each gave a vastly different
account of the events leading up to their altercation. Jordan
testified that he entered the alley because he was looking for a
parking spot in the area. He noticed the victim, according to his
testimony, after he heard “somebody hitting [his] truck” and saw
“someone trying to poke [his] eyes with a stick.” Jordan further
testified that, before he got out of the truck, the victim poked him in
the eye through the open driver’s door window, and that he then
started hitting the victim because he felt “cornered” and feared for
his safety.
¶ 4 The victim, on the other hand, testified that his memory of the
incident was spotty, but that he remembered “most everything
leading up” to the physical altercation. He testified that he was
hanging out with his friends near the alley when he observed
Jordan’s truck and “occupants in the truck . . . hollering and yelling
at people derogatory comments about their race and such as that.”
3
The victim further testified that, after some of the friends left,
Jordan approached the victim in the alleyway and said that “he was
going to beat [the victim] to death” before getting out of the truck
with the bat. When asked whether he remembered having a stick
during his encounter with Jordan, the victim responded that he
couldn’t “recall specifically.”
¶ 5 The victim sustained serious bodily injuries during the fight,
including multiple facial fractures requiring reconstructive surgery
and bleeding in the brain.
¶ 6 In connection with this incident, the prosecution initially
charged Jordan with second degree assault, later adding a first
degree assault count and three habitual offender counts. The jury
acquitted Jordan of first degree assault but found him guilty of
second degree assault. The trial court then found that the
prosecution had proved the three habitual counts beyond a
reasonable doubt and adjudicated Jordan a habitual offender.
¶ 7 The court sentenced Jordan to thirty-two years in the custody
of the Department of Corrections (DOC), with three years of parole.
4
II. Analysis
¶ 8 On appeal, Jordan contends that the trial court erred by
(1) instructing the jury on the initial aggressor exception to
self-defense; (2) lowering the prosecution’s burden of proof in
response to a jury question; (3) adjudicating him a habitual offender
because the prosecution presented insufficient evidence that he had
three prior felony convictions; and (4) finding that his
thirty-two-year sentence didn’t raise an inference of gross
disproportionality that would require the court to conduct an
extended proportionality review. We disagree with each of these
contentions.
A. The Trial Court Didn’t Err by Instructing the Jury on the
Initial Aggressor Exception to Self-Defense
¶ 9 Jordan first contends that the trial court reversibly erred by
including the initial aggressor language in the self-defense jury
instruction. We disagree.
1. Additional Background
¶ 10 At the conclusion of its case-in-chief, the prosecution
requested an initial aggressor instruction, arguing that such an
instruction was appropriate “given the testimony from the witnesses
5
that there were arguments going on, that there was yelling coming
from Mr. Jordan and Mr. Jordan’s vehicle,” and that he drove up to
the victim. Defense counsel objected, arguing that the evidence
established that the victim, not Jordan, initiated the physical
conflict either by thrusting the stick at Jordan while he was still
inside his truck or by hitting him with it as he was getting out. In
response to these arguments, the trial court pointed out that “[t]he
video was far enough away” that it couldn’t determine whether the
thrust was a gesticulation or something else, and that Jordan
getting out of the truck with a bat and the victim then striking him
with the stick supported giving the instruction. The court, however,
deferred making a decision until hearing all the evidence.
¶ 11 The prosecution renewed its request for the initial aggressor
instruction at the close of all evidence, and the defense again
objected. The court initially concluded that such an instruction
wasn’t warranted under the circumstances, reasoning that
the video is clear that [the victim] does walk up
to [the truck] and he certainly thrusts, jabs,
does something with his stick in the direction
of that cab. And that would fit the definition of
initiating physical conflict by using or
threatening the imminent use of unlawful
physical force.
6
¶ 12 In response, the prosecutor pointed out that the victim’s
“testimony [was] that when Mr. Jordan was in the car, he had the
bat, and he told [the victim] that he was, quote, going to beat [the
victim] to death.” Then, “based on that piece of evidence,” the trial
court reversed its original decision and included language about the
initial aggressor exception in the jury instruction.
2. Applicable Law and Standard of Review
¶ 13 Colorado’s self-defense statute provides that
a person is justified in using physical force
upon another person in order to defend
himself . . . from what he reasonably believes
to be the use or imminent use of unlawful
physical force by that other person, and he
may use a degree of force which he reasonably
believes to be necessary for that purpose.
§ 18-1-704(1), C.R.S. 2023. But the right to self-defense is not
limitless. Thus, the prosecution may defeat a defendant’s claim of
self-defense by proving beyond a reasonable doubt that the
defendant was the initial aggressor. § 18-1-704(3)(b); People v.
Roberts-Bicking, 2021 COA 12, ¶ 30. The initial aggressor is the
person who initiated the physical conflict by using or threatening
the imminent use of unlawful physical force. Castillo v. People,
2018 CO 62, ¶¶ 41, 43.
7
¶ 14 A trial court may instruct the jury on the initial aggressor
exception to self-defense when some evidence in the record
supports the exception. Galvan v. People, 2020 CO 82, ¶ 25. And
“[w]hen a trial court is presented with some evidence that a
defendant used force in self-defense, and some evidence that the
defendant is the initial aggressor, the court should instruct the jury
on both self-defense and the initial aggressor exception.” People v.
Newell, 2017 COA 27, ¶ 25. “To qualify as ‘some evidence,’ the
evidence must be such as would support a reasonable inference
that the accused was the initial aggressor . . . .” Roberts-Bicking,
¶ 31; see also Galvan, ¶ 24 n.7 (noting that “some evidence” in
support of the instruction is synonymous with “some credible
evidence,” “any credible [even if highly improbable] evidence,” “a
scintilla of evidence,” “any evidence,” or a “small quantum of
evidence”).
¶ 15 We review de novo whether sufficient evidence supports an
instruction on the initial aggressor exception to a self-defense claim.
Castillo, ¶ 32; People v. Cline, 2022 COA 135, ¶ 31. In doing so, we
view the evidence in the light most favorable to giving the
challenged instruction. Galvan, ¶ 33.
8
3. Discussion
¶ 16 Jordan focuses on the victim’s conduct before Jordan got out
of the truck because, in his view, that was when the physical
altercation began. He contends that the video and his testimony
established that the victim initiated the physical conflict by
attacking him with the stick while he was still sitting inside his
truck. He argues that the only evidence of his aggression before
stepping out of the truck was his words, which, standing alone,
were insufficient to support the court’s initial aggressor instruction.
We’re not persuaded.
¶ 17 To begin, the record doesn’t conclusively establish Jordan’s
version of events. The video shows the victim raising the stick,
thrusting it in Jordan’s direction, and retracting it just before
Jordan starts opening the door. However, it doesn’t definitively
show whether the stick made contact with Jordan or his truck at
that time. Nor does the video — which has no audio — clearly
establish whether the victim was threatening Jordan while waving
the stick around. As the trial court noted during the initial jury
instruction conference, “[t]he video was far enough away” that the
court couldn’t determine what the victim was doing.
9
¶ 18 Moreover, there was other evidence supporting the
prosecution’s version of events. Recall that the victim testified that
Jordan had yelled that “he was going to beat [the victim] to death”
before he got out of the truck with the bat. The victim also testified
that he saw Jordan’s bat when Jordan opened the truck door.
¶ 19 Jordan argues the trial court was wrong to rely on this
testimony to give the instruction for two reasons. First, Jordan
posits that “a verbal confrontation alone is insufficient to make a
defendant the initial aggressor” and that “there must be some
physical action accompanying the words before a defendant can
legally be considered the initial aggressor.” Put differently, Jordan
argues that his fighting words (i.e., that “he was going to beat [the
victim] to death”) didn’t support giving the instruction because they
weren’t uttered in concert with a physical act.
¶ 20 But according to the testimony, there were acts in connection
with Jordan’s words. The victim testified that right after Jordan
uttered his threat, he jumped out of the truck brandishing the bat.
This constitutes some evidence that Jordan’s words were
accompanied by conduct that threatened the imminent use of
unlawful physical force against the victim. See Roberts-Bicking,
10
¶¶ 34-35 (concluding that the trial court didn’t err by giving an
initial aggressor instruction when there was some evidence in the
record that the defendant’s statements that the victims would die
were made in conjunction with the defendant brandishing his
pistol); see also People v. Whiteaker, 2022 COA 84, ¶ 37 (concluding
that an initial aggressor instruction was appropriate because the
defendant not only insulted the victim before attacking her, but also
approached the victim “in an aggressive manner” with her “fists
balled up”), rev’d on other grounds, 2024 CO 25.
¶ 21 The timing of Jordan’s verbal threat and his exit from the
truck support this conclusion. The evidence shows that the threat
and the act were closely related in time given that the entire
incident lasted less than a minute. See Castillo, ¶¶ 47-49
(considering whether a defendant was the initial aggressor as to the
entire incident when the incident lasted “much less than a minute”
and the defendant’s actions were part of a single criminal episode).
¶ 22 Second, Jordan argues that the trial court erred by relying on
the victim’s testimony because it was incredible as a matter of law.
“Testimony is ‘incredible as a matter of law’ only if it is about facts
that physically could not have been observed or events that could
11
not have happened under the laws of nature.” People v. Platteel,
2023 CO 18, ¶ 32 (quoting People v. Minjarez, 81 P.3d 348, 355
(Colo. 2003)).
¶ 23 The victim’s testimony doesn’t fall into either category because
his statements were about what he heard and saw during the
incident (i.e., that Jordan made a verbal threat and that he then
saw Jordan’s bat). The testimony was about events the victim
experienced, and it didn’t contradict the laws of nature. The
testimony also didn’t contradict the inaudible video of the fight;
rather, it added context to the video.
¶ 24 True, the victim also testified that he didn’t recall holding the
stick or any other object during the encounter, a fact refuted by the
video. But the victim added that he would defer to the video
because his recollection of the incident was spotty, and he
acknowledged what the video showed: “I understand that I’m on
video with a stick, so if that’s what’s on the video, then I probably
picked something up to protect myself.” While this record reveals
that part of the victim’s testimony was incomplete as compared with
parts of the video, it wasn’t incredible as a matter of law. See id.
12
(“[T]estimony that is merely biased, conflicting, or inconsistent is
not incredible as a matter of law.”) (citation omitted).
¶ 25 At bottom, the parties here presented evidence supporting
both Jordan’s claim that he acted in self-defense and the
prosecution’s claim that he was the initial aggressor. The evidence
created a factual dispute as to whether the victim had poked
Jordan in the eye while he was still inside his truck or whether
Jordan came out of the truck swinging the bat to start the physical
altercation. Which version of the incident to accept, and, therefore,
whether Jordan was legally justified in using physical force against
the victim, depended on whose story the jury believed. See Newell,
¶ 28 (“It is for the jury, not the judge, to decide which witnesses and
even which version of the witnesses’ testimony is to be believed.”).
¶ 26 Under these circumstances, however, there was evidence to
support both versions of events. Therefore, the trial court correctly
instructed the jury on both self-defense and the initial aggressor
13
exception to that affirmative defense.
1
See id. at ¶ 25. Jordan’s
instructional error challenge, therefore, must fail.
B. Jordan is Precluded from Challenging on Appeal the Trial
Court’s Response to a Jury Question
¶ 27 Jordan next contends that the trial court improperly lowered
the prosecution’s burden of proof in answering a question that the
jury asked during deliberations. The jury inquired about the
manner in which the mental state and voluntary act elements of
first degree and second degree assault were presented in the
elemental instructions (instructions 14 and 13, respectively). The
jury question read,
We are unclear as to why Element #4 [causing
a bodily injury to another person] on
instructions 13+14 is on its own line. Like,
what’s the difference between Element #3
[intent] and Element 3+4 together?
¶ 28 After discussing this question with the parties, the trial court
gave the following response:
1
Jordan argues that we should review his challenge under the
constitutional harmless error standard of reversal. The People, on
the other hand, assert that nonconstitutional harmless error
applies. Because we conclude that the trial court didn’t err by
providing the initial aggressor instruction, we need not resolve the
parties’ dispute regarding the applicable standard of reversal.
14
Instructions 13 and 14 list the elements of
each crime that must be proven. The various
voluntary acts and mental states (see
Instruction No. 16) that constitute a crime are
simply listed as independent elements. The
prosecution bears the burden of proving each
element of a crime beyond a reasonable doubt.
¶ 29 Jordan challenges the court’s response on appeal, arguing not
only that the court further confused the jury by stating that the two
elements were listed separately because they were independent
from one another, but also that the court lowered the prosecution’s
burden of proof by “incorrectly instruct[ing] the jury [that] it could
find Mr. Jordan guilty without the prosecution proving Mr. Jordan
had the intent to cause bodily injury.”
¶ 30 The People argue, among other things, that Jordan is
precluded from challenging the trial court’s response on appeal
because his trial counsel actively participated in — and ultimately
approved — that response. We agree with the People.
¶ 31 During the discussion about the jury question with the
parties, the court initially proposed telling the jury that “the mens
rea mental state of the crime is listed by itself to make clear that the
culpable mental state is an element of the offense that must be
15
proven.” Defense counsel agreed, but added, “And the actions must
be done with that mental state, maybe.”
¶ 32 In response to defense counsel’s suggested language, the court
noted that it “could make [the answer] a little bit longer” by
referring the jury to instruction 16, which contained definitions of
the culpable mental state and voluntary act. The court then
proposed a new answer, “The various voluntary acts and mental
states, see Instruction 16, that constitute a crime are simply listed
as independent elements. The prosecution bears the burden of
proving each element of a crime beyond a reasonable doubt.”
Defense counsel weighed in on this language:
[DEFENSE COUNSEL]: I -- my impression is
that it would be helpful to [the jury] if it were
somehow conveyed that [intent] is the mental
state defined in [instruction] 14. That must be
present in the elements of the crime describing
action or -- I’m trying to think of a concise way
to convey that, because sometimes when we
get elementals -- the reason the mental state is
separate is because there are multiple acts, all
of which need to be done with that mental
state. And if we put the mental state on the
same line as the first act in the chain, it might
be confusing, and the jury might think that
the second act in that chain doesn’t also
require the mental state.
16
I would just want to convey to the jury
something about the mental state applying to
each act -- each element that requires an act.
¶ 33 The court took another stab at crafting the answer:
All right. We’ll keep it simple. I’m just going to
say those are the elements. The prosecution
bears the burden of proving each of the
elements beyond a reasonable doubt.
After the prosecutor asked the court whether this answer was “in
lieu of the original proposed which was referring [the jury] to the
definition[s]” in instruction 16, the court asked defense counsel
which answer he liked better. Counsel responded, “I’d ask for that
then, the initial example the Court gave.” The court then finalized
the answer that Jordan now challenges on appeal:
THE COURT: All right. Here we go.
Instructions 13 and 14 list the elements of
each crime that must be proven. The various
voluntary acts and mental states, see
Instruction 16, that constitute a crime are
simply listed as independent elements. The
prosecution bears the burden of proving each
element of a crime beyond a reasonable doubt.
[DEFENSE COUNSEL]: That’s acceptable.
¶ 34 The People argue that Jordan is barred from challenging this
response under the invited error doctrine. That doctrine prevents a
party from complaining on appeal of an error that the party has
17
invited or injected into the case. People v. Rediger, 2018 CO 32,
¶ 34. “However, its application is limited to situations where an
error was caused by a party’s affirmative, strategic conduct and not
by a party’s inaction or inadvertence.” People v. Garcia, 2018 COA
180, ¶ 7.
¶ 35 In contrast to invited error, “[t]he doctrine of waiver is a
procedural bar to appellate review based on ‘the intentional
relinquishment of a known right or privilege.’” Phillips v. People,
implied, the conduct must be unequivocal and clearly manifest an
intent to relinquish the claim. Id. at ¶ 21. The mere failure of a
party to raise an issue doesn’t suffice. Id.
¶ 36 Here, the record reveals that Jordan not only approved the
trial court’s final answer to the jury question but also actively
participated in crafting it. True, defense counsel also told the court
that he wanted the response to convey the concept that intent
applied to the voluntary act element in the instructions. But
ultimately, he asked the court to provide an answer that would refer
the jury to instruction 16, like “the initial example the Court gave.”
The court then agreed to defense counsel’s request and crafted an
18
answer reflecting his input. Then, defense counsel confirmed that
the proposed answer was “acceptable.”
¶ 37 Defense counsel’s actions implicate elements of both invited
error and waiver. We need not decide whether the circumstances of
this case fit more closely to one doctrine over the other because
both preclude appellate review. See Rediger, ¶ 34; Phillips, ¶ 16;
see also People v. Jacobson, 2017 COA 92, ¶ 48 (concluding that
the invited error doctrine precluded a defendant from challenging a
jury instruction and the court’s answer to a jury question when the
defendant’s counsel actively participated in preparation of both
items); People v. Mendez, 897 P.2d 868, 871 (Colo. App. 1995)
(holding that a defendant was precluded from challenging the trial
court’s response to a jury question when the record revealed “that
not only did the defendant fail to object to the response, [his]
defense counsel actively participated in the preparation of the
response and approved it”); People v. Phillips, 91 P.3d 476, 484
(Colo. App. 2004) (stating that the defendant was precluded from
challenging the trial court’s response to a jury question when the
“defendant acceded to the court’s response”).
¶ 38 We therefore decline to address this issue any further.
19
C. The Prosecution Presented Sufficient Evidence in Support of
the Trial Court’s Habitual Offender Adjudication
¶ 39 Jordan next contends that the trial court erred by adjudicating
him as a habitual offender because the prosecution failed to present
sufficient evidence that he had three prior felony convictions. We
again disagree.
1. Applicable Law and Standard of Review
¶ 40 Under section 18-1.3-801(2)(a)(I), C.R.S. 2023, a defendant
may be adjudged a habitual offender if the defendant “has been
three times previously convicted [of a felony], upon charges
separately brought and tried, and arising out of separate and
distinct criminal episodes.” “Where the charges against the
defendant were separately brought and would have been tried
separately but for the defendant’s decisions to enter guilty pleas,
the convictions thereby obtained satisfy the definition of predicate
felonies in the habitual criminal statute.” People v. Price, 2023 COA
96, ¶ 69 (quoting Gimmy v. People, 645 P.2d 262, 267 (Colo. 1982))
(alterations omitted).
¶ 41 In habitual offender proceedings, the prosecution bears the
burden of proving beyond a reasonable doubt that the defendant is
20
the person who was convicted of the prior offenses.
§ 18-1.3-803(5)(b), C.R.S. 2023; see also People v. Cooper, 104 P.3d
307, 310 (Colo. App. 2004). “[A] duly authenticated copy of the
record of former convictions and judgments of any court of record
for any of said crimes,” as well as identification photographs and
fingerprints contained in those records or the DOC records
(penitentiary pack), constitute prima facie evidence of the
defendant’s identity. § 18-1.3-802, C.R.S. 2023.
¶ 42 A claim that the prosecution failed to present sufficient
identity evidence requires us to determine whether the relevant
evidence, both direct and circumstantial, when viewed as a whole
and in the light most favorable to the prosecution, is substantial
and sufficient to support a conclusion by a reasonable mind that
the defendant was the person who was convicted of the prior
offenses. See People v. Moore, 226 P.3d 1076, 1088 (Colo. App.
2009). We review the record de novo in completing this task. See
Dempsey v. People, 117 P.3d 800, 807 (Colo. 2005); see also
Thomas v. People, 2021 CO 84, ¶¶ 57-58. Such a claim need not be
preserved in the trial court and may be raised for the first time on
21
¶ 27.
2. Discussion
¶ 43 In connection with the habitual counts, the prosecution
asserted that Jordan had pleaded guilty to conspiracy to commit
menacing (Adams County Case No. 04CR29), attempted assault of a
peace officer (Adams County Case No. 06CR1675), and possession
with intent to manufacture or distribute a controlled substance
(Denver County Case No. 18CR1675). On appeal, Jordan argues
that the prosecution presented insufficient evidence during the
sentencing hearing that he was the person who pleaded guilty in
those three cases. We’re not persuaded.
¶ 44 There was overwhelming evidence that Jordan was the
defendant in each of the prior cases.
2
For starters, the prosecution
introduced the testimony of Bradley Murphy, an expert in
fingerprint examination. Murphy testified that Jordan’s fingerprints
matched the fingerprints that were taken in the prior three cases,
2
Indeed, considering the quality and quantity of evidence
supporting the court’s determination, Jordan’s sufficiency challenge
borders on frivolous.
22
saying “[t]hat they’re all the same” and confirming that they all
belonged to Jordan. See People v. Carrasco, 85 P.3d 580, 583 (Colo.
App. 2003) (“Offering evidence of fingerprint cards and expert
testimony linking those prints to the defendant is a valid method for
proving the identity element, but it is not the only way to show
identity.”).
¶ 45 The prosecution also introduced extensive documentary
evidence in support of the habitual counts. That evidence included
a triple-certified penitentiary pack, certified copies of the court
records for the current case and three prior convictions, and the
fingerprint cards, charging documents, mittimuses, and other
information linking Jordan to those convictions. See § 18-1.3-802.
The documents contained the name, date of birth, gender, race,
height, eye color, hair color, social security number (SSN), state
identification (SID), and FBI number of the defendant in each case,
as well as photos.
¶ 46 The following chart shows that this information was identical
in almost every case record:
23
Table 1: Comparison of Identifying Information (an “X” means that
the information matches between the case records)
Defendant’s
Information
Current
Case
04CR29
06CR1675
18CR1675
Name
Chadwick
H.
Jordan
Chadwick
Heath
Jordan
Chadwick
Heath
Jordan
Chadwick H.
Jordan
DOB
X
X
X
X
Gender
X
X
X
X
Race
X
X
X
X
Height
X
(an inch
shorter)
X
X
Eye Color
X
X
X
X
Hair Color
Black
Black
Black
Brown
SSN
X
X
X
(None)
SID No.
X
X
X
X
FBI No.
X
(None)
X
X
Photo
Identification
X
(7/26/2004
DOC Photo)
(4/19/2007
DOC Photo)
X
Indeed, the relevant case records differed only to the extent that the
records for Case No. 04CR29 listed Jordan an inch shorter and
didn’t include his FBI number and the records for Case No.
18CR1675 reflected a slightly different color of Jordan’s hair and
24
didn’t include his social security number. The penitentiary pack
contained DOC photos dated July 26, 2004, and April 19, 2007.
¶ 47 Jordan contends that the evidence of his prior convictions was
nonetheless insufficient because the expert witness “provided no
testimony beyond his standard practices, and provided no specific
testimony about what was done to compare fingerprints in this
particular case.” Under these circumstances, Jordan argues, the
trial court had to require more “than uncorroborated and
unchallengeable testimony from a single witness” before entering
the habitual offender adjudication.
¶ 48 Jordan doesn’t challenge the admissibility of the expert’s
testimony itself. Instead, he claims that the trial court shouldn’t
have found the testimony reliable or credible and that it shouldn’t
have given the expert’s opinion as much weight as it did. But our
sufficiency review doesn’t entail determining the credibility of the
witnesses, resolving conflicts in the evidence, or deciding what
weight to give each piece of evidence. See People v. Sprouse, 983
P.2d 771, 778 (Colo. 1999). These determinations were squarely
within the trial court’s province as the fact finder in this case.
25
¶ 49 Jordan also contends that the evidence was insufficient
because certain information was present in some but not all the
records. His argument implies that the records for each case had to
match exactly to constitute sufficient evidence of his identity. But
that’s not what the governing test requires. As noted, the evidence
— when viewed as a whole and in the light most favorable to the
prosecution — must be sufficient and substantial to support a
conclusion by a reasonable mind that the defendant was convicted
of the felonies underlying the habitual criminal charges. See Moore,
226 P.3d at 1088. It’s true that some data — such as Jordan’s FBI
number — wasn’t present in every record. But applying the test
described above, we agree with the trial court’s conclusion that “it is
very clear that all of these records refer to the same person, to the
same Chadwick Jordan.”
¶ 50 Accordingly, we conclude that the prosecution presented
sufficient evidence for a reasonable mind to conclude beyond a
reasonable doubt that Jordan had three prior felony convictions,
which, in turn, supported his habitual offender adjudication. See
§ 18-1.3-801(2)(a)(I).
26
D. Jordan Wasn’t Entitled to an Extended
Proportionality Review
¶ 51 Lastly, Jordan argues that the trial court erred by not
conducting an extended proportionality review before imposing a
thirty-two-year prison sentence. We perceive no error.
1. Additional Background
¶ 52 Because the trial court adjudicated Jordan a habitual
offender, it sentenced him in accordance with section 18-1.3-801.
This provision requires a court to sentence a habitual offender to “a
term of four times the maximum of the presumptive range” for the
triggering offense. § 18-1.3-801(2)(a)(I)(A). Jordan’s conviction for
second degree assault under these circumstances, a class 4 felony
as modified for an extraordinary risk crime, carried a maximum
sentence of eight years in prison. See § 18-3-203(1)(b), (2)(b), (c)(II),
C.R.S. 2023; § 18-1.3-401(1)(a)(V)(A.1), (10)(a)-(b), C.R.S. 2023;
§ 18-1.3-406(2)(a)(I)(A), (II)(C), C.R.S. 2023. Consequently, the trial
court had to sentence him to a thirty-two-year term in the custody
of the DOC.
27
2. Applicable Law and Standard of Review
¶ 53 The United States and Colorado Constitutions prohibit
“extreme sentences that are ‘grossly disproportionate’ to the crime.”
Wells-Yates v. People, 2019 CO 90M, ¶ 5 (quoting Harmelin v.
Michigan, 501 U.S. 957, 1001 (1991) (Kennedy, J., concurring)); see
also U.S. Const. amend. VIII; Colo. Const. art. II, § 20.
¶ 54 If a defendant believes that he has been subjected to an
unconstitutionally disproportionate sentence, he may request (as
Jordan did here) a proportionality review in which a court will
compare the gravity or seriousness of his current and past offenses
— the triggering and predicate offenses, respectively — to the
harshness of the sentence imposed for the triggering offense. Wells-
Yates, ¶¶ 8, 23.
¶ 55 A proportionality review of a habitual criminal sentence
proceeds in two steps. Id. at ¶ 10. In step one, the court first
considers the gravity or seriousness of the triggering offense and the
predicate offenses in combination. Id. at ¶¶ 10-14, 23-24. The
court must then compare that to the harshness of the penalty
imposed for the triggering offense. Id. “[T]he inquiry is whether the
corresponding triggering offense and the predicate offenses,
28
considered together, are so lacking in gravity or seriousness as to
suggest that the sentence is grossly disproportionate.” Id. at ¶ 24.
¶ 56 Certain crimes — such as aggravated robbery, burglary,
accessory to first degree murder, and the sale or distribution of
narcotics — have been declared per se grave or serious under
Colorado law. Id. at ¶¶ 13, 65. For all other crimes, the court
engages in a fact-specific inquiry of the harm caused or threatened
to the victim or society and the culpability of the defendant to
determine whether the offense is grave or serious. Id. at ¶ 12.
¶ 57 Only if step one — the abbreviated proportionality review —
gives rise to an inference of gross disproportionality does a court
proceed to step two, which is an extended proportionality review.
Id. at ¶ 8. “In the rare situation in which the analysis advances to
step two,” the court should compare the defendant’s sentence for
the triggering offense to sentences for other offenses in the same
jurisdiction and sentences for the same offense in other
jurisdictions. Id. at ¶¶ 7, 15, 17.
¶ 58 We review de novo whether a defendant’s sentence is
unconstitutionally disproportionate. Id. at ¶ 35.
29
3. Discussion
¶ 59 Before imposing the sentence, the trial court conducted an
abbreviated proportionality review. It considered the seriousness of
Jordan’s triggering and predicate offenses along with the harshness
of his sentence. In doing so, the court accepted the prosecutor’s
recitation of facts underlying the offenses and found that those
offenses, in combination, were grave or serious. Specifically, the
court found that,
[t]aking into consideration the violence of at
least the prior assault [of a peace officer], the
harm to society inherent in the menacing, and
the extreme violence in this particular case, I
cannot find that taken together, in
combination, that the triggering offense and
the predicate offenses are so lacking in gravity
or seriousness that there should be an
inference that this [sentence] is grossly
disproportionate.
¶ 60 The court also assessed the harshness of Jordan’s
thirty-two-year sentence, noting, “We’re not talking about life, we
are talking about a sentence that is determinate and one for which
Mr. Jordan would eventually qualify for parole.”
¶ 61 After conducting this abbreviated proportionality review, the
court concluded that Jordan’s sentence didn’t raise an inference of
30
gross disproportionality, and that he was therefore not entitled to
an extended proportionality review.
¶ 62 Jordan argues that the trial court erred by concluding that his
thirty-two-year sentence wasn’t grossly disproportionate after only
conducting the abbreviated proportionality review. Because
Jordan’s triggering offense and his predicate offenses were grave or
serious, and his sentence isn’t unconstitutionally harsh, we
perceive no error.
a. Triggering Offense
¶ 63 We begin our analysis by considering whether Jordan’s
triggering offense — second degree assault — was grave or serious
under the circumstances. We conclude that it was.
¶ 64 As the trial court noted, the facts underlying Jordan’s second
degree assault conviction “were of extreme violence.” He struck the
victim multiple times in the head using a baseball bat as a deadly
weapon. After taking the victim to the ground, Jordan repeatedly
punched the victim for the next fifteen seconds. One eyewitness
testified that Jordan was acting with a “pure blackout rage” and
that he was beating the victim like “a sack of potatoes.” See People
v. Loris, 2018 COA 101, ¶ 12 (noting that whether an offense
31
involved violence is a factor in determining the offense’s gravity or
seriousness). Jordan’s conduct also caused significant bodily
harm, leaving the victim with multiple facial fractures and bleeding
in the brain. See Close v. People, 48 P.3d 528, 541-42 (Colo. 2002)
(concluding that second degree assault was grave or serious under
the facts of the case because the defendant’s acts, among other
things, “caused actual harm to the victims, including the infliction
of a swollen nose, facial and head lacerations, and bruises”),
abrogated on other grounds by Wells-Yates, ¶¶ 16, 55-66.
b. Conspiracy to Commit Menacing
¶ 65 The facts underlying Jordan’s first predicate offense —
conspiracy to commit menacing, Adams County Case No. 04CR29
— are likewise very serious.
3
According to the probable cause
3
Both the supreme court and divisions of our court have previously
designated felony menacing as a per se grave or serious offense.
See Close v. People, 48 P.3d 528, 538 (Colo. 2002), abrogated on
other grounds by Wells-Yates v. People, 2019 CO 90M, ¶¶ 16, 55-66,
65 n.18 (declining to address whether felony menacing is per se
grave or serious offense); see also People v. Stellabotte, 2016 COA
106, ¶ 59, aff’d, 2018 CO 66. We need not decide whether this
designation remains good law or whether it extends to conspiracy to
commit menacing because we conclude that the facts of that offense
make it grave or serious here.
32
affidavit for his arrest, Jordan entered a convenience store holding a
two-foot-long chrome bar, ordered everyone in the store to go to the
back of it, and called the cashier “a fucking bitch.” In her
statements to the police, the cashier “stated that she was extremely
scared” during this incident. This record shows that Jordan’s
intentional conduct placed the cashier and those present in the
store in fear for their safety and well-being. See Wells-Yates, ¶ 12.
c. Attempted Second Degree Assault of a Peace Officer
¶ 66 We next consider the facts of Jordan’s attempted second
degree assault of a peace officer conviction — Adams County Case
No. 06CR1675. In that case, Jordan physically attacked a deputy
who was conducting a check of his jail cell. According to the
probable cause affidavit, Jordan disobeyed an order asking him to
uncover a cell window, telling the requesting officer, “Fuck you and
fucking get away from my door.” After another officer entered the
cell and asked Jordan what was wrong with him, Jordan
approached the officer “in an aggressive manner with his fists
cl[e]nched and his chest puffed.” He then refused the officer’s
orders to place his hands on the wall and, instead, punched the
officer in the jaw.
33
¶ 67 Jordan contends that this offense wasn’t grave or serious
because there was no evidence that the officer suffered serious
bodily harm. In his words, “[a] punch to the face causing non
serious injury would be a misdemeanor, but for the fact the person
punched in the case was a jail officer.” That may be true, but it
doesn’t make Jordan’s conduct less grave or serious. Crimes
against peace officers are treated differently because “[t]he
legislature recognized that peace officers are placed in a position of
great risk and responsibility in enforcing laws, preventing crime and
the myriad of other tasks they are called upon to perform.” People
v. Montoya, 104 P.3d 303, 306 (Colo. App. 2004) (quoting People v.
Prante, 177 Colo. 243, 249, 493 P.2d 1083, 1086 (1972)).
¶ 68 Jordan’s conduct in the predicate assault case highlights
these concerns. In addition to physically assaulting one of the
officers, he also significantly escalated the encounter, resulting in a
dangerous situation. The altercation ended only after he was tased
and restrained by six officers. See Wells-Yates, ¶ 12 (in assessing
the harm and culpability factors to determine whether an offense is
grave or serious, we consider, among other things, the absolute
34
magnitude of the crime and whether the defendant acted with
intent or some other culpable mental state).
d. Possession with Intent
¶ 69 Finally, in Denver County Case No. 18CR1675, Jordan
pleaded guilty to possession with intent to manufacture or
distribute a controlled substance after cocaine was found in his car
during a traffic stop.
¶ 70 The probable cause affidavit for Jordan’s arrest stated that he
was in possession of two plastic bags and several glass vials that
contained a significant amount of cocaine. The affidavit further
stated that the manner in which the cocaine was packaged, coupled
with the amount, suggested that Jordan intended to sell or
distribute it, not merely use it himself. See id. at ¶ 69 (noting that a
drug offense may be grave or serious when a defendant possesses a
large quantity of drugs).
¶ 71 In addition to drugs, the police also found in Jordan’s car a
pair of brass knuckles, various parts and assembly instructions for
an AR-15 assault rifle, as well as a “Hannib[al] Lecter mask.”
Jordan contends that these additional facts shouldn’t be considered
in determining the gravity or seriousness of his drug offense
35
because they were part of the probable cause affidavit and had no
connection to his conviction.
¶ 72 Jordan, however, doesn’t provide any legal authority for his
sweeping proposition that a court may not rely on a probable cause
affidavit when considering the gravity or seriousness of a particular
offense. Cf. People v. Hargrove, 2013 COA 165, ¶¶ 16-17 (affirming
the trial court’s determination that a crime wasn’t grave or serious
after the trial court made that decision in reliance on the facts set
forth in the probable cause affidavit), abrogated on other grounds by
Wells-Yates, ¶¶ 16-17.
¶ 73 Moreover, while Jordan wasn’t convicted of any crime in
relation to the additional items that were found in his car — even
though he was charged, among other things, with four counts of
possession of a weapon by a previous offender — the discovery of
the brass knuckles and various AR-15 parts was still relevant
because it increased the gravity or seriousness of his conduct. See
Wells-Yates, ¶ 71 (“[W]e conclude that the gravity or seriousness of
possession with intent should be determined on a case-by-case
basis by considering the surrounding facts and circumstances of
the particular crime committed.”). This is especially true given that
36
the weapons were discovered after the police received information
that Jordan had allegedly “made comments to his [school] counselor
and campus staff about being in possession of an AR[-]15 and other
handguns and expressing ideations that he was in support of
military mass killings.”
¶ 74 Considering this record, then, we conclude that Jordan’s
triggering offense and his three predicate offenses are grave or
serious in combination.
e. Harshness of the Penalty
¶ 75 As we have already noted, the trial court imposed a sentence
that was established by the General Assembly. See People v.
Deroulet, 48 P.3d 520, 523 (Colo. 2002) (when considering the
harshness of the defendant’s sentence, “a great deal of deference is
due to legislative determinations regarding sentencing”), abrogated
on other grounds by Wells-Yates, ¶¶ 16-17. Further, as the trial
37
court noted, Jordan is eligible for parole.
4
See Wells-Yates, ¶ 14
(noting that we consider whether the defendant is parole eligible
when assessing the harshness of the sentence “because parole can
reduce the actual period of confinement and render the penalty less
harsh”).
¶ 76 When considered together and in concert with his parole
eligibility, then, the triggering and predicate offenses aren’t so
lacking in gravity or seriousness as to suggest that Jordan’s
sentence is unconstitutionally disproportionate to his crime and
criminal recidivism. See id. at ¶ 24. Accordingly, we perceive no
error in the trial court’s conclusion that an extended proportionality
review of Jordan’s sentence was unnecessary in this case.
III. Disposition
¶ 77 The judgment is affirmed.
JUDGE TOW and JUDGE GOMEZ concur.
4
In his opening brief, Jordan asserts that he will need to serve
seventy-five percent, or twenty-four years, of his sentence before
becoming parole eligible. The People argue, based on DOC records,
that he will be eligible for parole in 2037, after completing half of
his sentence. We need not decide which date is correct, because
the relevant inquiry focuses on if he is parole eligible, not what his
parole eligibility date will be. See Wells-Yates, ¶ 14.
