A person who uses threats or physical actions to intentionally cause or attempt to cause fear of imminent serious bodily harm or injury in another person in Colorado is said to have committed a crime of menacing, or battery. In other words, menacing is a crime of making criminal threats.

Menacing is closely related to, but different from assault. The two crimes are nonetheless frequently charged together in Colorado. What’s the difference between these two charges?

Assault Vs. Menacing Charges

In Colorado, assault charges are generally levied against individuals who intentionally or recklessly inflict bodily injury to another individual. On the other hand, menacing can, in layman’s terms, be described placing a fear of being assaulted in another person.

Colorado law defines three distinct degrees of assault in addition to specific forms of assault that include assault on the elderly and disabled, as well as vehicular assault. Therefore, Colorado statutes define assault as follows:

• First-degree assault (Code § 18-3-202) is a felony with a possible penalty of up to $750,000 fines and 24 years imprisonment.
• Second-degree assault (Code § 18-3-203) is a felony with a possible penalty of up to $500,000 fines and 12 years imprisonment.
• Third-degree assault (Code § 18-3-204) is a misdemeanor with a possible penalty of up to 6 months imprisonment.

The first- and second-degree assault differ in terms of the level of harm caused.

For a first-degree assault charge to stand, the prosecution must prove that the accused had an intent to cause “serious bodily harm.”

For a second-degree assault charge, however, the prosecution only has to show that there was an intent to cause only “bodily harm” or that bodily injury resulted from recklessness.

Third-degree assault charges apply when the perpetrator had no intent to cause bodily injury but instead did so knowingly or recklessly, or if the bodily harm was caused negligently using a deadly weapon.

What about menacing?

Felony Menacing Vs. Misdemeanor Menacing in Colorado

However, depending on the specific nature of your actions, you can either be charged with felony menacing or misdemeanor menacing (Code § 18-3-206).

Let’s put this into perspective: in the year 2000, a man who was later named a violent sex offender forced his way into a home in Boulder and attempted to rape a woman, but the woman escaped. The following day, this man raped a newspaper vendor. On top of the charges of second-degree assault and first-degree sexual assault, he was also charged with misdemeanor menacing.

In April 2019, a 42-year old man was arrested in a southeastern neighborhood of Fort Collins following a domestic disturbance. The police found this man in his home armed with a gun. They took him into custody for unlawfully restraining another person and for knowingly instilling in another person the fear of imminent serious bodily harm. He was later charged with child abuse, domestic violence, false imprisonment and felony menacing.

Why was one instance charged as a misdemeanor while the other was a felony?

• Quite simply, menacing will be a class 3 misdemeanor if no deadly weapon was involved. Possible penalties include imprisonment for up to six months and/or a $50-$750 fine.
• Menacing will be a class 5 felony if a deadly weapon is used or if a person presents him or herself verbally or otherwise as though they are armed with a deadly weapon. Possible penalties include imprisonment for 1-3 year and/or a $1,000-$100,000 fine

About the Author:

 Kimberly Diego is a criminal defense attorney in Denver practicing at The Law Office of Kimberly Diego. She obtained her undergraduate degree from Georgetown University and her law degree at the University of Colorado. She was named one of Super Lawyers’ “Rising Stars of 2012” and “Top 100 Trial Lawyers in Colorado” for 2012 and 2013 by The National Trial Lawyers. Both honors are limited to a small percentage of practicing attorneys in each state.  She has also been recognized for her work in domestic violence cases.