Colorado’s second-highest court reversed a Jefferson County defendant’s felony menacing conviction on Thursday, concluding that the trial judge’s failure to define “bludgeon” for jurors may have affected the outcome.

A three-judge Court of Appeals panel divided in unusual ways in the case of Michael Casey Simms. Two judges believed the definition of “reasonable doubt” that jurors received was constitutional, while one judge would have ordered a new trial due to problematic wording in the definition. A different pairing of two judges agreed that the lack of definition for “bludgeon” was problematic, but the third judge believed jurors had all the information they needed about the word’s meaning.

Finally, all three judges agreed the order for Simms to pay crime victim restitution was flawed.

Prosecutors charged Simms with numerous domestic violence-related offenses for his attacks on the victim. Simms testified at trial and admitted to committing misdemeanor assault. Jurors convicted him on two counts of misdemeanor assault, one count of felony menacing, and acquitted him of the other charges. Simms received a two-year prison sentence and an order to pay nearly $9,500 in restitution.

Menacing rises from a misdemeanor to a felony if the person uses a “firearm, knife, or bludgeon.” The prosecution’s theory at trial was that Simms menaced the victim with a pocketknife, which he denied having. Although “knife” is defined in law, “bludgeon” is not.

During deliberations, jurors wrote a note asking: “Can a fist be considered a bludgeon?”

The defense argued in favor of telling the jury that hands cannot be considered a bludgeon. Instead, Norma Sierra, a retired judge assigned to the trial, told jurors they had received “all pertinent definitions.”

“Words which are not defined are to be given their plain and ordinary meaning,” she continued.

On appeal, Simms argued that Sierra should have informed jurors whether the law treats fists as a bludgeon — and answered the question in the negative.

By 2-1, the appellate panel agreed.

Judge Pax L. Moultrie, writing for herself and Judge Daniel M. Taubman in the June 18 opinion, noted that Sierra had an obligation to clarify the issue for the jury. Some definitions of “bludgeon” suggest that it is an inanimate object and not a body part, but other definitions could potentially encompass fists, Moultrie observed.

But “construing ‘bludgeon’ to include a fist is inconsistent with the statutory scheme,” she continued. “While we don’t doubt that a person’s fists can cause serious bodily injury, we conclude that fists are meaningfully different from types of weapons listed in the statute.”

Moultrie added that if jurors had believed the victim’s testimony that Simms menaced her with a knife, it likely would not have inquired about bludgeons.

Therefore, “the jury’s question casts sufficient doubt about whether it convicted Simms based on his use of a pocketknife or based on his use of his fists, which, as discussed above, is not permitted under the statute.”

Judge Steve Bernard dissented. He quoted numerous dictionary definitions of “bludgeon,” all of which made clear that fists are not included. Bernard believed that Sierra’s instruction that jurors consider the “plain and ordinary meaning” of the word had clearly signaled that fists would not be a bludgeon.

“It was appropriate for the court to instruct the jury that any undefined terms were to be given their plain and ordinary meanings because, when looking at the word ‘bludgeon,’ the plain and ordinary meaning of ‘bludgeon’ does not include a fist,” he wrote.

Moultrie countered in the majority opinion that jurors obtain instructions from judges, not from dictionaries.

Simms also argued that jurors received an unconstitutional definition of reasonable doubt. Numerous defendants have challenged the template language provided to jurors that a small group of judges revised in late 2022 to alter the longstanding explanation of reasonable doubt. Multiple Court of Appeals panels have upheld the new language as constitutional, and the Colorado Supreme Court is currently weighing the legality of the wording.

By 2-1, Moultrie and Bernard agreed with the decisions to date that have blessed the template language. Taubman dissented, reiterating concerns he raised in a February opinion about a key phrase in the instruction. He urged the Supreme Court to strike the disputed language.

Finally, all three panel members agreed that Simms’ obligation to pay crime victim restitution could not stand. The prosecution’s restitution request lacked detail about the medical expenses it was intended to cover, and Sierra did not make specific findings about how Simms’ conduct led to the requested amount.

The panel instructed that any future restitution order must “hold the prosecution to its burden of proving” a connection between Simms’ conduct and the covered expenses.

The case is People v. Simms.