Colorado’s second-highest court reinstated an El Paso County defendant’s aggravated robbery charge on Thursday after concluding that a trial judge misunderstood the requirement for a person to be “then and there so armed.”

Allegedly, Mark Alan Ambrose walked out of a Circle K store with five cases of Red Bull that he did not pay for. When the manager confronted him, Ambrose allegedly said, “We got everything we need. There’s nothing you can do about it. I have a 9-mil in the car.”

The manager interpreted Ambrose as saying that he had a gun. He returned to the store and called police, saying he was “not going to get shot over Red Bull.”

In November, District Court Judge Robin Chittum held a hearing to determine if there was probable cause to bring Ambrose to trial for aggravated robbery and other offenses. Under Colorado law, a person commits aggravated robbery if they possess “any article used or fashioned in a manner to lead any person” to believe it is a deadly weapon, or if the person represents that they are “then and there so armed.”

Chittum did not find probable cause for aggravated robbery, reasoning that Ambrose was not “then and there so armed.”

“Armed, I think, in a practical, usual, common-sense definition is, ‘I have something on me that I can use right now in order to injure, hurt, kill you.’ That is ‘then and there so armed’,” she said. “Then and there so armed is not, ‘I have got something in the truck.’ I could not find a single case of this clause where they didn’t talk about it being on the individual, held by the individual, or in their pocket, in their bag, somehow on them, where it is immediately available to use against the victim of the robbery.”

Consequently, she downgraded the charge to simple robbery and allowed it to proceed to trial.

The district attorney’s office immediately appealed, arguing a jury could find Ambrose’s alleged statement conveyed that he had a gun that was easily accessible to him.

A three-judge Court of Appeals panel agreed with the prosecution.

“We hold for the first time,” wrote Judge Jerry N. Jones in the May 21 opinion, “that the ‘then and there so armed’ element may be proved by evidence that the defendant represented that he then had a deadly weapon easily accessible and readily available for use.”

Based on the evidence at the hearing, it was plausible that Ambrose represented he was armed because the alleged gun in the truck “was easily accessible and readily available for Ambrose’s use,” Jones added.

The panel reinstated the more severe aggravated robbery charge.

The case is People v. Ambrose.