Assaults — C.R.S. 18-3-201 et seq.

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Index

18-3-201. Definitions.

18-3-202. Assault in the first degree.

18-3-203. Assault in the second degree.

18-3-204. Assault in the third degree.

18-3-205. Vehicular assault.

18-3-206. Menacing.

18-3-207. Criminal extortion - aggravated extortion.

18-3-208. Reckless endangerment.

18-3-209. Assault on the elderly or persons with disabilities — legislative declaration. (Repealed)


 

Current law (May 2008)

18-3-201. Definitions.

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As used in sections 18-3-201 to 18-3-203, unless the context otherwise requires:

(1) "Firefighter" means an officer or member of a fire department or fire protection or fire-fighting agency of the state, or any municipal or quasi-municipal corporation in this state, whether that person is a volunteer or receives compensation for services rendered as such firefighter.

(2) "Peace officer or firefighter engaged in the performance of his or her duties" means a peace officer, as described in section 16-2.5-101, C.R.S., or firefighter who is engaged or acting in, or who is present for the purpose of engaging or acting in, the performance of any duty, service, or function imposed, authorized, required, or permitted by law to be performed by a peace officer or firefighter, whether or not the peace officer or firefighter is within the territorial limits of his or her jurisdiction, if the peace officer or firefighter is in uniform or the person committing an assault upon or offense against or otherwise acting toward such peace officer or firefighter knows or reasonably should know that the victim is a peace officer or firefighter. For the purposes of this subsection (2) and this part 2, the term "peace officer" shall include county enforcement personnel designated pursuant to section 29-7-101 (3), C.R.S.

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Source: L. 71: R&RE, p. 419, § 1. C.R.S. 1963: § 40-3-201. L. 96: (2) amended, p. 588, § 2, effective May 1. L. 97: Entire section amended, p. 1011, § 14, effective August 6. L. 2003: (2) amended, p. 1628, § 62, effective August 6.

Annotation:

Off-duty peace officer included. An off-duty peace officer may be a "peace officer or fireman engaged in the performance of his duties" as defined in this section. People v. Rael, 198 Colo. 225, 597 P.2d 584 (1979).

Paramedic employed by the fire department included. Definition of "peace officer or firefighter engaged in the performance of his or her duties" includes a paramedic employed by the fire department to respond to such emergencies as medical calls, fire calls, and car accidents. People v. Montoya, 104 P.3d 303 (Colo. App. 2004).

Applied in People v. Mason, 632 P.2d 616 (Colo. App. 1981).


 

18-3-202. Assault in the first degree.

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(1) A person commits the crime of assault in the first degree if:

(a) With intent to cause serious bodily injury to another person, he causes serious bodily injury to any person by means of a deadly weapon; or

(b) With intent to disfigure another person seriously and permanently, or to destroy, amputate, or disable permanently a member or organ of his body, he causes such an injury to any person; or

(c) Under circumstances manifesting extreme indifference to the value of human life, he knowingly engages in conduct which creates a grave risk of death to another person, and thereby causes serious bodily injury to any person; or

(d) Repealed.

(e) With intent to cause serious bodily injury upon the person of a peace officer or firefighter, he or she threatens with a deadly weapon a peace officer or firefighter engaged in the performance of his or her duties, and the offender knows or reasonably should know that the victim is a peace officer or firefighter acting in the performance of his or her duties; or

(e.5) With intent to cause serious bodily injury upon the person of a judge of a court of competent jurisdiction or an officer of said court, he threatens with a deadly weapon a judge of a court of competent jurisdiction or an officer of said court, and the offender knows or reasonably should know that the victim is a judge of a court of competent jurisdiction or an officer of said court; or

(f) While lawfully confined or in custody as a result of being charged with or convicted of a crime or as a result of being charged as a delinquent child or adjudicated as a delinquent child and with intent to cause serious bodily injury to a person employed by or under contract with a detention facility, as defined in section 18-8-203 (3), or to a person employed by the division in the department of human services responsible for youth services and who is a youth services counselor or is in the youth services worker classification series, he or she threatens with a deadly weapon such a person engaged in the performance of his or her duties and the offender knows or reasonably should know that the victim is such a person engaged in the performance of his or her duties while employed by or under contract with a detention facility or while employed by the division in the department of human services responsible for youth services. A sentence imposed pursuant to this paragraph (f) shall be served in the department of corrections and shall run consecutively with any sentences being served by the offender. A person who participates in a work release program, a furlough, or any other similar authorized supervised or unsupervised absence from a detention facility, as defined in section 18-8-203 (3), and who is required to report back to the detention facility at a specified time shall be deemed to be in custody.

(2) (a) If assault in the first degree is committed under circumstances where the act causing the injury is performed upon a sudden heat of passion, caused by a serious and highly provoking act of the intended victim, affecting the person causing the injury sufficiently to excite an irresistible passion in a reasonable person, and without an interval between the provocation and the injury sufficient for the voice of reason and humanity to be heard, it is a class 5 felony.

(b) If assault in the first degree is committed without the circumstances provided in paragraph (a) of this subsection (2), it is a class 3 felony.

(c) If a defendant is convicted of assault in the first degree pursuant to subsection (1) of this section, the court shall sentence the defendant in accordance with the provisions of section 18-1.3-406.

(d) Repealed.

 

Source: L. 71: R&RE, p. 420, § 1. C.R.S. 1963: § 40-3-202. L. 75: (1)(d) amended, p. 632, § 6, effective July 1; (1)(a) amended, p. 618, § 7, effective July 21. L. 76, Ex. Sess.: (1)(f) added, p. 8, § 1, effective September 18. L. 77: (1)(c) amended, p. 961, § 9, effective July 1. L. 79: (2) R&RE, p. 732, § 1, effective May 18. L. 81: (1)(d) R&RE, p. 973, § 6, effective July 1. L. 86: (1)(d) amended, p. 770, § 5, effective July 1; (1)(f) amended, p. 789, § 1, effective July 1; (2)(c) and (2)(d) added, p. 776, § 2, effective July 1. L. 90: (1)(f) amended, p. 991, § 1, effective April 5; (1)(e.5) added and (2)(c) amended, p. 986, §§ 7, 8, effective April 24. L. 94: (1)(f) amended, p. 2655, § 137, effective July 1. L. 95: (1)(d) and (2)(d) repealed, p. 1250, § 6, effective July 1. L. 97: (2)(a) amended, p. 1544, § 13, effective July 1; (1)(e) amended, p. 1011, § 15, effective August 6. L. 98: (2)(c) amended, p. 1441, § 25, effective July 1. L. 2002: (2)(c) amended, p. 1512, § 186, effective October 1. L. 2003: (1)(f) amended, p. 1430, § 16, effective April 29.

Cross references: For the legislative declaration contained in the 1994 act amending subsection (1)(f), see section 1 of chapter 345, Session Laws of Colorado 1994. For the legislative declaration contained in the 2002 act amending subsection (2)(c), see section 1 of chapter 318, Session Laws of Colorado 2002.

Annotation

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Analysis
I. General Consideration.
II. Elements of Offense.
III. Trial and Prosecution.

A. In General.

B. Indictment or Information.

C. Evidence.

D. Jury.

E. Instructions.

IV. Verdict and Sentence.

 

I. GENERAL CONSIDERATION.

Am. Jur.2d . See 6 Am. Jur.2d, Assault and Battery, §§ 34-38.

C.J.S. See 6A C.J.S., Assault & Battery, §§ 73, 74, 78-82, 91-94, 98; 40 C.J.S., Homicide, §§ 146-148.

Law reviews. For article, "Joinder of Criminal Charges, Election, Duplicity," see 30 Dicta 117 (1953). For article, "One Year Review of Criminal Law," see 34 Dicta 98 (1957). For article, "The Definition of "Deadly Weapon" Under the Colorado Criminal Code," see 15 Colo. Law. 1663 (1986).

Annotator's note. Since § 18-3-202 is similar to former § 40-2-34, C.R.S. 1963, and laws antecedent thereto, relevant cases construing those provisions have been included in the annotations to this section.

Subsection (1)(b) is unconstitutional as violative of a person's right to equal protection of the laws. People v. Dominguez, 193 Colo. 468, 568 P.2d 54 (1977).

Subsection (1)(b) is unconstitutional because it imposes a higher penalty for essentially the same conduct proscribed in § 18-3-203(1)(a). People v. Dominguez, 193 Colo. 468, 568 P.2d 54 (1977).

Subsection (1)(e) is not unconstitutionally vague. People v. Jackson, 194 Colo. 93, 570 P.2d 527 (1977).

There is a sufficient pragmatic difference between the first degree assault statute and the second degree assault statute so as not to violate the defendant's constitutional guarantee of equal protection. People v. Jackson, 194 Colo. 93, 570 P.2d 527 (1977).

Divergent penalties in former versions of criminally negligent homicide and first degree assault violated equal protection because both statutes proscribed similar conduct and intent. People v. Jackson, 198 Colo. 193, 601 P.2d 622 (1979).

Different mental states required for first degree assault and criminally negligent homicide justify different penalties, and thus harsher penalty for first degree assault does not violate equal protection. People v. Lucero, 714 P.2d 498 (Colo. App. 1985).

This section does not proscribe conduct identical to § 18-3-203 and therefore does not violate equal protection. People v. Brake, 196 Colo. 575, 588 P.2d 869 (1979); People v. Montoya, 709 P.2d 58 (Colo. App. 1985), rev'd on other grounds, 736 P.2d 1208 (Colo. 1987); People v. Johnson, 923 P.2d 342 (Colo. App. 1996).

Requirement for proof of "extreme indifference to human life" is a sufficient differentiation between first and second degree assault and the statutes do not violate the equal protection clause. People v. Johnson, 923 P.2d 342 (Colo. App. 1996).

Special protection of peace officers reasonable. The general assembly recognizes that peace officers are placed in a position of great risk and responsibility, so to invoke a special punishment for an assault upon a peace officer acting in the scope of his official duties is neither arbitrary, capricious, nor unreasonable. People v. Prante, 177 Colo. 243, 493 P.2d 1083 (1972).

Assault on off-duty peace officer who is attempting to perform a law enforcement function violates this section . People v. Rael, 198 Colo. 225, 597 P.2d 584 (1979).

Scope of police duties for purposes of assault statutes. A law enforcement officer is "engaged in the performance of his duties" while making in good faith an arrest or stop which may be later adjudged to be invalid, unless he is on a personal frolic or resorts to unreasonable or excessive force. People v. Johnson, 677 P.2d 424 (Colo. App. 1983).

Every attempt to do personal injury involves an assault. Every attempt at robbery, or to commit rape, or to do other like personal injury, involves within it the idea of an assault, either actual or constructive. McNamara v. People, 24 Colo. 61, 48 P. 541 (1897).

Section applies to murder in either of the degrees. In a prosecution under this section it is not required that in order to sustain a conviction an attempt to commit murder in the first degree should be shown. This section applies to murder in either of the degrees. Dillulo v. People, 56 Colo. 339, 138 P. 33 (1914).

A simple assault is necessarily included as a part of aggravated assault. Lane v. People, 102 Colo. 83, 77 P.2d 121 (1938).

Reason for distinction among degrees of assault. This statutory scheme distinguishes between the degrees of assault based upon whether the injury was inflicted by means of a deadly weapon and whether the victim's injuries were so severe as to constitute "serious bodily injury" under the statutory definition. Stroup v. People, 656 P.2d 680 (Colo. 1982); People v. Tyler, 728 P.2d 314 (Colo. 1986).

Under subsection (2), heat of passion is not an affirmative defense to first degree assault . If found by the jury, it merely results in a reduction of penalty. People v. Pennese, 830 P.2d 1085 (Colo. App. 1991).

Under subsection (1)(d), because defendant could not be convicted of first degree assault without proof that he committed a class 3 felony sexual assault, the latter offense was a lesser included offense of the first degree assault charge and he could not, therefore, be convicted of both offenses. People v. Moore, 860 P.2d 549 (Colo. App. 1993).

By enacting subsection (2)(a), the general assembly maintained the offense of first degree assault, while providing for a lesser sentence if the additional mitigating factor of heat of passion was present . Rowe v. People, 856 P.2d 486 (Colo. 1993).

If first degree assault is committed under heat of passion, it is still a crime of violence and defendant must be sentenced in accordance with § 16-11-309. People v. Farbes, 973 P.2d 704 (Colo. App. 1998); People v. Ferguson, 43 P.3d 705 (Colo. App. 2001).

The general assembly did not intend for heat of passion to be an affirmative defense to the offense of first degree assault. Rowe v. People, 856 P.2d 486 (Colo. 1993).

The predicate offenses for "felony" first degree assault under this section fit the statutory test for a lesser included offense. As such, the conviction of the predicate offense must merge into the conviction for "felony" first degree assault, even though the predicate offense is a more serious offense and carries a greater punishment. People v. Halstead, 881 P.2d 401 (Colo. App. 1994).

Second degree assault is a lesser included offense of first degree assault. People v. Martinez, 189 Colo. 408, 540 P.2d 1091 (1975).

Assault with intent to rob is lesser included offense of aggravated robbery. Therefore, since assault with intent to rob is a lesser included offense of aggravated robbery, it was error for the court to permit both verdicts to stand. Thus, the conviction on the lesser included offense must be set aside. People v. Stephens, 188 Colo. 8, 532 P.2d 728 (1975).

Doctrine of merger required convictions for attempted aggravated robbery to be vacated where separately charged crime of attempted aggravated robbery of each victim was lesser included offense of crime of first degree assault on each victim. People v. Griffin, 867 P.2d 27 (Colo. App. 1993); People v. Fisher, 904 P.2d 1326 (Colo. App. 1994) (decided under law as it existed prior to 1995 repeal of subsection (1)(d)).

There is no offense of attempt to commit an assault with a deadly weapon in Colorado. Allen v. People, 175 Colo. 113, 485 P.2d 886 (1971).

There is no crime of attempted assault in Colorado. People v. Gordon, 178 Colo. 406, 498 P.2d 341 (1972).

There is a crime of attempt to commit rape under § 18-2-101 despite the existence of the crime of assault with intent to commit rape under this section for these are separate and distinct offenses. Clark v. People, 176 Colo. 48, 488 P.2d 1097 (1971).

A deadly weapon is one which is likely to produce death or great bodily injury from the manner in which it is used. Armijo v. People, 134 Colo. 344, 304 P.2d 633 (1956).

The offense of assault and battery is a matter of mixed state and local concern. City of Aurora v. Martin, 181 Colo. 72, 507 P.2d 868 (1973).

"Unreasonable but good faith belief" defense not available. The general assembly excluded in this section the defense of "unreasonable but good faith belief," inasmuch as a conviction is required if the jury should find that the defendant should reasonably have known that the police officers were acting within their lawful duties. People v. Estrada, 198 Colo. 188, 601 P.2d 619 (1979).

Applied in Zeiler v. People, 157 Colo. 332, 403 P.2d 439 (1965); Segura v. People, 159 Colo. 371, 412 P.2d 227 (1966); Hammond v. People, 161 Colo. 532, 423 P.2d 331 (1967); People in Interest of D.G.P., 194 Colo. 238, 570 P.2d 1293 (1977); Jones v. District Court, 196 Colo. 261, 584 P.2d 81 (1978); People v. Watkins, 196 Colo. 377, 586 P.2d 43 (1978); People v. Dowdell, 197 Colo. 76, 589 P.2d 948 (1979); People v. Thompson, 197 Colo. 299, 592 P.2d 803 (1979); People v. Trout, 198 Colo. 98, 596 P.2d 762 (1979); Perea v. District Court, 199 Colo. 27, 604 P.2d 25 (1979); Kreiser v. People, 199 Colo. 20, 604 P.2d 27 (1979); People v. Hoehl, 629 P.2d 1083 (Colo. 1980); People v. Lichtenstein, 630 P.2d 70 (Colo. 1981); People v. Valencia, 630 P.2d 85 (Colo. 1981); People v. Jordan, 630 P.2d 613 (Colo. 1981); People v. Henry, 631 P.2d 1122 (Colo. 1981); People v. Jones, 631 P.2d 1132 (Colo. 1981); People v. Walker, 634 P.2d 1026 (Colo. App. 1981); People v. District Court, 652 P.2d 582 (Colo. 1982); People v. Ferguson, 653 P.2d 725 (Colo. 1982); People v. Cole, 654 P.2d 830 (Colo. 1982); People v. Thompson, 655 P.2d 416 (Colo. 1982); People v. Castro, 657 P.2d 932 (Colo. 1983); People v. Martinez, 660 P.2d 1292 (Colo. 1983); People v. Brandt, 664 P.2d 712 (Colo. 1983); People v. Reed, 695 P.2d 806 (Colo. App. 1984), cert. denied, 701 P.2d 603 (Colo. 1985).

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II. ELEMENTS OF OFFENSE.

Assault under this section is in part a specific-intent crime, requiring the prosecution to prove that the defendant had the conscious objective to cause serious bodily injury. People v. Gonzales, 926 P.2d 153 (Colo. App. 1996).

First degree murder statutes (§§ 18-2-101 and 18-3-102) contain rationally different elements than this first degree assault statute, and thus a defendant sentenced under the former and not the latter was not denied equal protection of law. People v. Brewer, 720 P.2d 596 (Colo. App. 1985).

Attempted first degree assault is not a lesser included offense of attempted first degree murder after deliberation. Attempted first degree assault requires that a defendant act with the intent to cause serious bodily injury to another person by means of a deadly weapon. Use of a deadly weapon is not an element of attempted first degree murder after deliberation. People v. Beatty, 80 P.3d 847 (Colo. App. 2003).

Proof of actual ability to inflict injury not necessarily essential. The crime of assault with intent to rob under this section may be committed by intimidation as well as by actual force, and the intimidation may be as effectually accomplished by apparent as by actual ability to inflict the injury, hence, proof of actual ability to inflict the injury in the manner threatened is not necessarily essential. McNamara v. People, 24 Colo. 61, 48 P. 541 (1897).

Assault to commit murder requires evidence of defendant's present ability to commit an assault on the victim and specific intent to murder. People v. Baca, 179 Colo. 166, 503 P.2d 348 (1972).

Conviction under this section is not inconsistent with conviction for attempted second degree murder. A defendant can engage in conduct with the intent to cause serious bodily injury while knowing but not caring that the conduct is practically certain to result in death. In such circumstances, the defendant may be found guilty of attempted second degree murder, even though lacking the specific intent to cause death. People v. Gonzales, 926 P.2d 153 (Colo. App. 1996).

However, attempted second degree murder is not a lesser-included offense of first degree assault. People v. Laurson, 15 P.3d 791 (Colo. App. 2000).

Intent to cause serious bodily injury is not necessarily an intent to cause only serious bodily injury . People v. Gonzales, 926 P.2d 153 (Colo. App. 1996).

Present ability must be construed in the light of the particular situation. In construing the criminal assault statute, therefore, factors such as the gravity of the potential harm and the uncertainty of the result are to be included in appraising the actor's present ability. Allen v. People, 175 Colo. 113, 485 P.2d 886 (1971); People v. Gordon, 178 Colo. 406, 498 P.2d 341 (1972).

Essential elements of assault are an unlawful attempt to commit a violent injury and the present ability to commit a violent injury, and these elements must be shown to have existed at the time in order to sustain a charge of assault. People v. Cardwell, 181 Colo. 421, 510 P.2d 317 (1973).

The absence of heat of passion provocation is neither an element nor a sentencing enhancer of first degree assault. People v. Villarreal, 131 P.3d 1119 (Colo. App. 2005).

Specific intent is element of offense. Where a crime consists of an act combined with a specific intent, the intent is just as much an element of the crime as is the act. Shreeves v. People, 126 Colo. 413, 249 P.2d 1020 (1952).

"Specific," as applied to intent to do great bodily harm is an adjective which distinguishes the intent to do great bodily harm from other intentions in the defendant's mind at the time of the commission of the crime, and to require that intention to be in actual existence in defendant's mind at the time of the commission of the alleged crime. Shreeves v. People, 126 Colo. 413, 249 P.2d 1020 (1952); Moyer v. People, 165 Colo. 583, 440 P.2d 783 (1968).

The elements of assault and specific intent on the part of the assaulter must coexist in order to constitute the crime. Crump v. People, 129 Colo. 58, 266 P.2d 1100 (1954); Barnhisel v. People, 141 Colo. 243, 347 P.2d 915 (1959).

The specific intent to commit bodily injury upon the person of another is a necessary and essential element of assault with a deadly weapon. Armijo v. People, 157 Colo. 217, 402 P.2d 79 (1965); Baker v. People, 176 Colo. 99, 489 P.2d 196 (1971).

Specific intent is an essential element of the crime of assault with a deadly weapon. Duran v. People, 156 Colo. 385, 399 P.2d 412 (1965).

Intent to rob requires knowing, deliberate action. Martinez v. People, 172 Colo. 82, 470 P.2d 26 (1970).

The specific intent to do bodily injury to another person is an essential element of the offense of assault with a deadly weapon. People v. Garcia, 186 Colo. 167, 526 P.2d 292 (1974).

Where a defendant engages in only one assaultive act, he or she cannot simultaneously have a specific intent to harm a particular person and universal malice that is not directed at a particular person. People v. Beatty, 80 P.3d 847 (Colo. App. 2003).

"Serious bodily injury" is an element of first degree assault, which the people must prove beyond a reasonable doubt. People v. Martinez, 189 Colo. 287, 540 P.2d 1091 (1975).

"Serious bodily injury" is defined as bodily injury which involves a substantial risk of death, serious permanent disfigurement, or protracted loss or impairment of the function of any part or organ of the body. People v. Martinez, 189 Colo. 287, 540 P.2d 1091 (1975).

"Serious bodily injury" and "bodily injury" constitutionally distinguishable. Sections 18-3-202 (1)(a) and 18-3-203 (1)(a), thus, do not proscribe identical conduct and therefore do not violate equal protection. People v. Elam, 198 Colo. 170, 597 P.2d 571 (1979).

The basic element in both first and second degree assault is injury to a person's body, the difference being one of the degree of the injury. People v. Martinez, 189 Colo. 287, 540 P.2d 1091 (1975).

By establishing all of the essential elements of first degree assault, all of the essential elements of second degree assault would necessarily be proven. People v. Martinez, 189 Colo. 287, 540 P.2d 1091 (1975).

First degree assault and burglary each require proving additional fact. First degree assault and first degree burglary each require proof of an additional fact not necessary in proof of the other. People v. Rael, 199 Colo. 201, 612 P.2d 1095 (1980).

In order to prove first degree assault and crime of violence instead of second degree assault and crime of violence, an additional element must be proven — that the use of the deadly weapon actually caused the serious bodily injury. People v. Mozee, 723 P.2d 117 (Colo. 1986).

The elements of assault with intent to commit rape are: (1) The assault; (2) the intent to commit rape; and (3) the purpose to effect such intent. Barnhisel v. People, 141 Colo. 243, 347 P.2d 915 (1959).

Unnecessary to show witness in fact resisted. If defendant made the assault with the specific intent to commit rape and to overcome resistance with force, it is unnecessary in a prosecution under this section to establish that the prosecuting witness in fact resisted, or that she failed to resist because of threats of bodily harm. Crump v. People, 129 Colo. 58, 266 P.2d 1100 (1954).

Conditional threat of death will suffice to establish assault against a jail guard even though no attempt was made to commit a battery on the guard. People v. Goff, 187 Colo. 57, 530 P.2d 512 (1974).

Wounds resulting in disfigurement of leg. Pictures of wounds as exhibited to the jury justified the reasonable inference that the wounds resulted in disfigurement of the leg, a necessary element of proof under this section. People v. Strohm, 185 Colo. 260, 523 P.2d 973 (1974).

Requirement of knowledge that victim of assault was peace officer is not constitutionally required and the general assembly could have made the commission of the act as such a crime without regard to the knowledge of the doer that the victim was a peace officer. People v. Prante, 177 Colo. 243, 493 P.2d 1083 (1972).

Defendant committed first degree extreme indifference assault when he fired into a closed door upon leaving house and admitted that he was not directing his fire at any particular individual, despite fact that he knew some of the victims inside the house. People v. Ellis, 30 P.3d 774 (Colo. App. 2001).

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III. TRIAL AND PROSECUTION.
A. In General.

Proof beyond reasonable doubt required. In order to find one guilty of a violation of this section, it is incumbent upon the people to prove beyond a reasonable doubt that the defendant violated the statute with a specific intent so to do. Shreeves v. People, 126 Colo. 413, 249 P.2d 1020 (1952); Baker v. People, 176 Colo. 99, 489 P.2d 196 (1971).

A showing of actual knowledge that the one assaulted was a peace officer engaged in his official duties or proof of the probability of such knowledge beyond a reasonable doubt must precede conviction of assault of a peace officer. People v. Prante, 177 Colo. 243, 493 P.2d 1083 (1972).

It is no defense to show that specific intent to do bodily harm was directed at someone else other than victim. Medina v. People, 133 Colo. 67, 291 P.2d 1061 (1956); People v. Tafoya, 179 Colo. 438, 501 P.2d 118 (1972).

Failure to advise pleading defendant of specific intent element not "fundamental defect." The sentencing court's failure explicitly to advise the defendant of the element of specific intent in the crime of aggravated assault was not such a "fundamental defect" that would result in a "complete miscarriage of justice" upon the defendant's plea of guilty. Martinez v. Ricketts, 498 F. Supp. 893 (D. Colo. 1980).

Elements of first degree assault are readily understandable to persons of ordinary intelligence and pleading defendant was properly advised of the critical elements through the reading of the information by the district court. People v. Cabral, 698 P.2d 234 (Colo. 1985).

Conviction for both first degree assault and first degree burglary does not violate constitutional guarantee against double jeopardy. People v. Rael, 199 Colo. 201, 612 P.2d 1095 (1980).

Under subsection (1)(d) when there are separate victims for each crime an underlying conviction of sexual assault on a child does not merge into a conviction of first degree assault while committing a crime. People v. Moore, 877 P.2d 840 (Colo. 1994).

Prosecution need not prove, and the jury need not be instructed about, the absence of heat of passion provocation as a sentence enhancer under Apprendi . People v. Villarreal, 131 P.3d 1119 (Colo. App. 2005).

B. Indictment or Information.

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Several counts may be united. It is proper to unite in one information counts charging an assault, an assault with a deadly weapon with intent to do bodily injury, and an assault with intent to commit murder, where all refer to the same transaction. Rice v. People, 55 Colo. 506, 136 P. 74 (1913).

Allegation that defendant "did make an assault" sufficient. An indictment for assault with intent to rob under this section, which alleges, as to the assault, that the defendant "did make an assault," without stating all of the particulars comprehended by the statutory definition of that term is sufficient. McNamara v. People, 24 Colo. 61, 48 P. 541 (1897).

Indictment for assault with intent to murder, where word "feloniously" is unnecessarily used, is good. Gile v. People, 1 Colo. 60 (1867).

Information held sufficient . Mayer v. People, 116 Colo. 284, 180 P.2d 1017 (1947).

C. Evidence.

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Specific intent not presumed from act. Proof of the commission of the act does not warrant the presumption that accused had the requisite specific intent. Shreeves v. People, 126 Colo. 413, 249 P.2d 1020 (1952); Armijo v. People, 157 Colo. 217, 402 P.2d 79 (1965).

Intent may be inferred from all circumstances. Intent is usually manifested by circumstances and proof thereof necessarily is by circumstantial evidence, and, of course, such intent is ordinarily inferable from the facts. Peterson v. People, 133 Colo. 516, 297 P.2d 529 (1956); Moyer v. People, 165 Colo. 583, 440 P.2d 783 (1968).

Proof of specific intent is necessarily circumstantial and inferable from all the facts and circumstances surrounding the doing of the act. Gonzales v. People, 168 Colo. 545, 452 P.2d 46 (1969).

On a charge of assault with a deadly weapon, while the mere commission of the act does not necessarily mean that the defendant had the requisite specific intent to harm, this intent may nonetheless be found from the defendant's actions and the reasonable inferences which may be drawn from the circumstances of the case. Baker v. People, 176 Colo. 99, 489 P.2d 196 (1971).

Specific intent to do great bodily harm may be supplied by inferences drawn from the circumstances of the case. People v. Focht, 180 Colo. 259, 504 P.2d 1096 (1972).

It is clear that specific intent may be inferred from the facts and circumstances surrounding the commission of an assault. People v. Edwards, 184 Colo. 440, 520 P.2d 1041 (1974).

While specific intent must be established beyond a reasonable doubt, it may be proven by circumstantial evidence. People v. Walker, 189 Colo. 545, 542 P.2d 1283 (1975).

Intent shown by direct or circumstantial evidence. Under this section general criminal intent is insufficient and there must be a showing of specific intent by direct or circumstantial evidence. Shreeves v. People, 126 Colo. 413, 249 P.2d 1020 (1952); Peterson v. People, 133 Colo. 516, 297 P.2d 529 (1956); Armijo v. People, 157 Colo. 217, 402 P.2d 79 (1965).

On a charge of assault with a deadly weapon, specific intent to do bodily harm need not be proved by direct substantive evidence. Baker v. People, 176 Colo. 99, 489 P.2d 196 (1971).

Intent to cause serious bodily injury may be proven by circumstantial evidence. People v. Olinger, 180 Colo. 58, 502 P.2d 79 (1972).

Evidence which tends to establish motive or intent is not rendered inadmissible merely because it may tend to show commission by the accused of a crime different from the one with which he is charged. Swift v. People, 171 Colo. 178, 465 P.2d 391 (1970).

Evidence of uncommunicated threats by deceased shortly before the killing, together with acts and conduct indicating an intention to put the threats into execution, may be admissible as part of the res gestae. This does not mean, however, that all uncommunicated threats are admissible, for they have to be offered for a proper purpose. Sowards v. People, 158 Colo. 557, 408 P.2d 441 (1965).

A defendant's character, temperament, and status, as well as his reason for acting as he did, are important to enable the jury to arrive at a proper verdict. Sowards v. People, 158 Colo. 557, 408 P.2d 441 (1965).

Section requires sufficient evidence of force. All that is necessary to sustain a verdict of assault with intent to commit rape is that there should be sufficient evidence of force from which the jury can justly find that the defendant intended to overcome the resistance of the woman by the necessary force. Crump v. People, 129 Colo. 58, 266 P.2d 1100 (1954).

Complaint of rape victim corroborates her testimony. In criminal trials for rape, where rape was attempted but not consummated, it may be shown by the testimony of the prosecuting witness or that of other witnesses that the alleged victim made complaint of the outrage soon after its commission for the purpose of corroborating her testimony. Padilla v. People, 156 Colo. 186, 397 P.2d 741 (1964).

Evidence of the failure of the person assaulted to make complaint soon after the commission of the outrage is a circumstance which tends to discredit her testimony. Padilla v. People, 156 Colo. 186, 397 P.2d 741 (1964).

It is not independent evidence of the offense charged. Padilla v. People, 156 Colo. 186, 397 P.2d 741 (1964).

Evidence sufficient to submit to jury issue of intent. People v. Olinger, 180 Colo. 58, 502 P.2d 79 (1972).

Evidence sufficient to show specific intent. Swift v. People, 171 Colo. 178, 465 P.2d 391 (1970); Baker v. People, 176 Colo. 99, 489 P.2d 196 (1971); People v. Tafoya, 179 Colo. 438, 501 P.2d 118 (1972); People v. Focht, 180 Colo. 259, 504 P.2d 1096 (1972).

Eyewitness testimony established use of weapon. Where three witnesses for the people testified only that they did not see the defendant with a knife, a fourth witness testified unequivocally to possession of a knife by the defendant, and no witness of the people stated that the defendant did not have a knife, there is no internal contradiction, and the evidence of one eyewitness, if believed by the jury, is sufficient to establish that defendant had in his possession a knife and used it to inflict the wounds on the victim of the assault. People v. Tafoya, 179 Colo. 438, 501 P.2d 118 (1972).

Impeachment of victim's reputation and credibility. When the reputation and credibility of the victim of an assault is sought to be impeached, the general rule is that evidence as to such reputation must be confined to the community in which the person, whose reputation is sought to be shown, lives, and limited to some reasonable time previous to the time of the present criminal act. However, the general rule does not apply if the defendant contends that he acted in self-defense, and at the time of the criminal act the defendant was aware of the victim's prior acts of violence upon a third person. People v. Burress, 183 Colo. 146, 515 P.2d 460 (1973).

Sufficiency of present ability and intent. When a defendant who threatens to kill a police officer places both hands on the officer's revolver in an attempt to remove it, the evidence of defendant's present ability to commit assault with a deadly weapon as well as possession and control of the weapon by defendant is sufficient to sustain a conviction. People v. Gordon, 178 Colo. 406, 498 P.2d 341 (1972).

When there is no evidence of any nature that a defendant possessed a gun or had the present ability to inflict the victim's injury, and there is no evidence whatsoever from which the jury could draw an inference that the defendant had the specific intent to murder the victim, defendant cannot be convicted of assault to commit murder. People v. Baca, 180 Colo. 166, 503 P.2d 348 (1972).

Evidence of act giving rise to self-defense. Before the defendant, whose defense to an assault is self-defense, can impeach the credibility of the victim by a prior specific violent act, the defendant must lay a proper foundation, and the trial court is justified in excluding the specific act evidence until such time as the defendant establishes that he was aware that the specific violent act took place, and that either the act occurred, or the defendant became aware of its occurrence within a reasonable time of his use of force in self-defense. People v. Burress, 183 Colo. 146, 515 P.2d 460 (1973).

Photographs as evidence. In a child abuse prosecution, the trial court did not err in admitting into evidence photographs of the body of the deceased child. The photographs accurately depicted the burns and the bruises, contusions and abrasions on the child's body. They were relevant and had probative value concerning the nature and permanency of the injuries inflicted upon the child. People v. Strohm, 185 Colo. 260, 523 P.2d 973 (1974).

Testimony of emergency room physician related to substantial risk of permanent injury based upon points of bullet entry and exit, taking into account the structures and vessels in or near the path to the extent that such path could be determined, held proper. People v. Covington, 988 P.2d 657 (Colo. App. 1999), rev'd on other grounds, 19 P.3d 15 (Colo. 2001).

Granting motion for judgment of acquittal was error. Where evidence in prosecution for first degree assault was held sufficient to support jury verdict of guilty, the granting of motion for judgment of acquittal by the trial judge was error. People v. Martinez, 191 Colo. 428, 553 P.2d 774 (1976).

Evidence sufficient to support conviction. Where defendant said that he was going home to get a gun and would be back, and afterwards returned with a gun and stated to complaining witness, "I told you I would do it," the evidence was sufficient to support a verdict of guilty of assault with a deadly weapon. Peterson v. People, 133 Colo. 516, 297 P.2d 529 (1956).

Testimony of an eyewitness in which she spontaneously and unequivocally identified the defendant as the culprit, the testimony of the police officers as to apprehension of the defendant almost immediately after the commission of the offense in the vicinity of the victim's home, and the condition of the defendant's clothing, was sufficient evidence to support the verdict of the jury of guilty of assault with a deadly weapon. Harris v. People, 174 Colo. 483, 484 P.2d 1223 (1971).

D. Jury.

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Whether fight was by consent is jury question. A fight by consent is a fight had upon a mutual agreement to fight together. As a proof of such agreement may be direct or circumstantial, it is ordinarily a proper question to be submitted to the jury. Carpenter v. People, 31 Colo. 284, 72 P. 1072 (1903).

As is issue of specific intent. The question of whether there was sufficient evidence to sustain an allegation as to specific intent under this section is not a question of law but a question of fact which rests entirely within the competency of the trier of fact, whether it be a jury or a court, and was thus not reviewable by the supreme court. People v. Archer, 173 Colo. 299, 477 P.2d 791 (1970), overruled on other grounds, People v. Kirkland, 174 Colo. 362, 483 P.2d 1349 (1971).

Knowledge that victim was officer. The question of whether one knew or should have known another to be a peace officer is a purely factual issue and it is the jury's duty to resolve the conflict in evidence on this question. People v. Prante, 177 Colo. 243, 493 P.2d 1083 (1972).

Likewise, credibility and weight of testimony. Where a genuine issue as to facts exists, the jury as trier of the facts must be the judge of the credibility of the witnesses and the weight to be accorded their testimony. People v. Prante, 177 Colo. 243, 493 P.2d 1083 (1972).

Whether defendant established heat of passion claim was issue for jury to determine. Thompson v. Ricketts, 500 F. Supp. 688 (D. Colo. 1980).

Determination of issue by jury is not vague guide. The fact that a penal statute is framed in a way such as to require a jury to determine a question of reasonableness does not make it too vague to afford a practical guide to acceptable behavior. People v. Prante, 177 Colo. 243, 493 P.2d 1083 (1972).

Jury verdict not defective, where record reflects verdict form allowed jury, if it found the defendant guilty of first or second degree assault, to assign the mitigator of heat of passion. People v. Pennese, 830 P.2d 1085 (Colo. App. 1991).

Record supported jury's determination that defendant was guilty beyond a reasonable doubt of first degree assault where defendant was a complicitor in the robbery of the victim, and in the course of or in furtherance of that crime, the victim was seriously injured by one of the individuals involved in the robbery. People v. Fisher, 904 P.2d 1326 (Colo. App. 1994) (decided under law as it existed prior to 1995 repeal of subsection (1)(d)).

E. Instructions.

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Instruction which fails to define all necessary elements of crime is deficient. Barnhisel v. People, 141 Colo. 243, 347 P.2d 915 (1959).

The failure to give an instruction which informed the jury that an essential ingredient of the crime was the specific intent to commit bodily injury upon the person of another and that it was incumbent upon the people to prove, beyond a reasonable doubt, such specific intent was reversible error. Armijo v. People, 157 Colo. 217, 402 P.2d 79 (1965).

Inadequate instruction on specific intent. Instruction on specific intent in prosecution for assault with intent to commit murder which read, "Where a crime consists of an act combined with a specific intent, the intent is just as much an element of the crime as is the act. In such cases, mere general intent is insufficient, and the requisite specific intent must be shown as a matter of fact, either by direct or circumstantial evidence," was too general and failed to advise the jury as to what the requisite specific intent was. People v. Nace, 182 Colo. 127, 511 P.2d 501 (1973).

Instruction on possession of knife erroneous. It was error to instruct the jury that it was unlawful to possess or carry a pocket knife, the blade of which can be opened by mechanical contrivance, where the information charged the defendant with an alleged assault with a deadly weapon, and not with violating such statute. Watts v. People, 159 Colo. 347, 411 P.2d 335 (1966).

Where evidence justifies it, simple assault may be submitted as lesser included offense of an aggravated assault such as assault with a deadly weapon, and an instruction thereon is proper. However, in those cases where the defendant must either be guilty of the offense charged or not guilty of any offense, it is error to submit to the jury an instruction on simple assault as a lesser included offense. Sims v. People, 177 Colo. 279, 493 P.2d 365 (1972).

Where the elements of assault are common in both offenses, the jury should have been instructed on the crime of simple assault as a lesser included offense to the crime of assault with intent to rape and a verdict on simple assault should have been submitted. Barnhisel v. People, 141 Colo. 243, 347 P.2d 915 (1959).

Where defendant was charged with an alleged assault with a deadly weapon, it was not error to refuse to submit an instruction on the lesser included offense of simple assault where there was nothing in the evidence warranting the submission to the jury of that question. Watts v. People, 159 Colo. 347, 411 P.2d 335 (1966).

The court need not invariably submit lesser included assault to the jury. There remains the question whether the evidence justifies this action. Oftentimes the evidence precludes submission even when the offense is charged in a separate count, and in some cases the evidence is such that the jury must determine the case on the greater offense and that alone. Miera v. People, 164 Colo. 254, 434 P.2d 122 (1967).

Where the trial judge submitted to the jury not only the offense of assault with a deadly weapon, but also simple assault as a lesser included offense, this was not error. Plainly, an instruction on general intent was necessary for simple assault, and it was also necessary for the court to instruct on specific intent for the charge of assault with a deadly weapon. Arellano v. People, 174 Colo. 456, 484 P.2d 801 (1971).

Failure to give instruction without request not error. Failure of court to instruct on assault with intent to commit rape as a lesser included offense of forcible rape, where defendant does not request such an instruction or raise this point in motion for new trial, does not constitute reversible error and absent a showing of plain error it will not be considered on appeal. People v. Chavez, 179 Colo. 316, 500 P.2d 365 (1972).

Instruction based on information count proper. Where defendant who was charged duplicitously in one and the same count with assault with intent to murder and assault with a deadly weapon failed to object before trial, it was not error to instruct jury on crime of assault with a deadly weapon. Russell v. People, 155 Colo. 422, 395 P.2d 16 (1964).

Defendant charged with assault with a deadly weapon and conspiracy to assault with deadly weapon was not subjected to double jeopardy by conspiracy instruction in combination with accessory instruction. People v. Grass, 180 Colo. 346, 505 P.2d 1301 (1973).

Instructions taken as whole adequate. In a prosecution for assault with intent to murder, an instruction is not erroneous because omitting the element of defendant's ability to carry his intention into effect at the time, where such element was specifically called to the jury's attention by a subsequent instruction, as the instructions must be considered as a whole. Warford v. People, 43 Colo. 107, 96 P. 556 (1908).

In prosecution for assault on peace officer, trial court did not err in rejecting defendant's tendered instruction on lesser degree of assault, in refusing to limit instruction on general intent to lesser degree of assault, and in dealing with legal effect of intoxication on element of specific intent, where instructions considered as a whole adequately covered law and advised jury as to specific intent and where there was no evidence on lesser degree of assault. People v. Olinger, 180 Colo. 58, 502 P.2d 79 (1972).

Jury was properly instructed to consider whether defendant acted in the heat of passion only after deciding whether defendant committed first degree assault. Under subsection (2)(a), heat of passion is not an affirmative defense, but merely results in the decrease of penalty. People v. Pennese, 830 P.2d 1085 (Colo. App. 1991).

No error in instructions directing jury to consider whether the People had proven the elements of first degree assault before considering heat of passion and provocation, where the general assembly has not chosen to classify heat of passion as an affirmative defense that exonerates offenders from the offense of first degree assault, but rather, reduces the penalty if an assault occurs in the heat of passion. People v. Pennese, 830 P.2d 1085 (Colo. App. 1991).

No error in refusal of trial court to deliver an instruction stating that the definition of serious bodily injury focuses on the injury which the victim actually suffered and the damage actually caused rather than the risk to the victim and the damages that might have occurred. People v. Covington, 988 P.2d 657 (Colo. App. 1999), rev'd on other grounds, 19 P.3d 15 (Colo. 2001).

Heat of passion instruction. A defendant charged with assault is entitled to a special interrogatory on heat of passion if the evidence supports it. People v. Rowe, 837 P.2d 260 (Colo. App. 1992), rev'd on other grounds, 856 P.2d 486 (Colo. 1993).

Since defendant did not request an instruction or a special interrogatory on sudden heat of passion, no plain error occurred when the trial court did not sua sponte instruct the jury on that theory of the defense. People v. Lee, 18 P.3d 192 (Colo. App. 2000).

Since the general assembly did not intend to create a new offense of first degree assault committed under heat of passion when it enacted subsection (2)(a), there is no chargeable offense of first degree assault committed under heat of passion nor a separate offense to classify as a "lesser included offense" or a "lesser nonincluded offense" of first degree assault; rather, there is only one single crime of first degree assault, albeit one that may have different sentences depending on whether the mitigating factor of heat of passion has been established. Rowe v. People, 856 P.2d 486 (Colo. 1993).

The district court erroneously instructed the jury that first degree assault committed under heat of passion was a lesser included offense of first degree assault. Rowe v. People, 856 P.2d 486 (Colo. 1993).

IV. VERDICT AND SENTENCE.

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Consecutive sentences for burglary and assault upheld. Conviction and sentences for two distinct offenses did not put appellees twice in jeopardy as the Colorado statutes separately define the offenses of burglary and assault with intent to rob. The imposition of two consecutive sentences did not constitute a violation of any federally protected right. Trujillo v. Patterson, 266 F. Supp. 901 (D. Colo. 1966), aff'd per curiam, 389 F.2d 1003 (10th Cir. 1967); Trujillo v. People, 178 Colo. 136, 496 P.2d 1026 (1972).

The offense of assault with intent to murder requires proof of a specific intent to kill, a fact not necessary to sustain a charge of aggravated robbery. On the other hand, aggravated robbery requires proof of a robbery, a fact not necessary for assault. Therefore, punishment for both of these offenses committed during one course of conduct does not violate the constitutional prohibition against double jeopardy for the same offense. People v. Bugarin, 181 Colo. 62, 507 P.2d 875 (1973).

Evidence determines if acquittal of lesser offense necessary upon acquittal of greater. It is the character of the evidence which must control in determining whether the lesser included offense of assault with intent to commit rape can stand alone or fall on acquittal of rape. Miera v. People, 164 Colo. 254, 434 P.2d 122 (1967).

Where penalty for conviction limited. A person charged with first degree assault, who can establish that he acted in "heat of passion," is constitutionally protected against receiving a greater penalty than he could have received had he caused the death of his victim. People v. Montoya, 196 Colo. 111, 582 P.2d 673 (1978).

Maximum sentence where defendant claims self-defense. A defendant who raises the affirmative defense of self-defense and who was convicted of first degree assault should receive no greater sentence than he could have received if he had been convicted of the criminally negligent homicide statute in effect prior to July 1, 1977. People v. Estrada, 198 Colo. 188, 601 P.2d 619 (1979).

One can be guilty of first degree assault but not attempted second degree murder. A jury's verdict of guilty of first degree assault under this section is not irreconcilable and inconsistent with its verdict of not guilty on the charge of attempted second degree murder under § 18-3-103. These crimes require different elements of proof, and the jury can find from the very same evidence that an element of one crime is present while an element of another charged crime is absent. People v. Ward, 673 P.2d 47 (Colo. App. 1983).

If first degree assault is committed under heat of passion, it is still a crime of violence and defendant must be sentenced in accordance with § 16-11-309. People v. Farbes, 973 P.2d 704 (Colo. App. 1998); People v. Ferguson, 43 P.3d 705 (Colo. App. 2001).

Convictions for both first degree assault and first degree assault extreme indifference cannot be upheld if there is only one victim and one criminal act. People v. Baird, 66 P.3d 183 (Colo. App. 2002).

First degree assault with intent to cause serious bodily injury and first degree assault-extreme indifference are alternative means of committing the same offense; therefore, one of the first degree assault convictions must be vacated. People v. Tallwhiteman, 124 P.3d 827 (Colo. App. 2005).


 

18-3-203. Assault in the second degree.

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(1) A person commits the crime of assault in the second degree if:

(a) Repealed.

(b) With intent to cause bodily injury to another person, he or she causes such injury to any person by means of a deadly weapon; or

(c) With intent to prevent one whom he or she knows, or should know, to be a peace officer or firefighter from performing a lawful duty, he or she intentionally causes bodily injury to any person; or

(d) He recklessly causes serious bodily injury to another person by means of a deadly weapon; or

(e) For a purpose other than lawful medical or therapeutic treatment, he intentionally causes stupor, unconsciousness, or other physical or mental impairment or injury to another person by administering to him, without his consent, a drug, substance, or preparation capable of producing the intended harm; or

(f) While lawfully confined or in custody, he or she knowingly and violently applies physical force against the person of a peace officer or firefighter engaged in the performance of his or her duties, or a judge of a court of competent jurisdiction, or an officer of said court, or, while lawfully confined or in custody as a result of being charged with or convicted of a crime or as a result of being charged as a delinquent child or adjudicated as a delinquent child, he or she knowingly and violently applies physical force against a person engaged in the performance of his or her duties while employed by or under contract with a detention facility, as defined in section 18-8-203 (3), or while employed by the division in the department of human services responsible for youth services and who is a youth services counselor or is in the youth services worker classification series, and the person committing the offense knows or reasonably should know that the victim is a peace officer or firefighter engaged in the performance of his or her duties, or a judge of a court of competent jurisdiction, or an officer of said court, or a person engaged in the performance of his or her duties while employed by or under contract with a detention facility or while employed by the division in the department of human services responsible for youth services. A sentence imposed pursuant to this paragraph (f) shall be served in the department of corrections and shall run consecutively with any sentences being served by the offender; except that, if the offense is committed against a person employed by the division in the department of human services responsible for youth services, the court may grant probation or a suspended sentence in whole or in part, and such sentence may run concurrently or consecutively with any sentences being served. A person who participates in a work release program, a furlough, or any other similar authorized supervised or unsupervised absence from a detention facility, as defined in section 18-8-203 (3), and who is required to report back to the detention facility at a specified time shall be deemed to be in custody.

(f.5) (I) While lawfully confined in a detention facility within this state, a person with intent to infect, injure, harm, harass, annoy, threaten, or alarm a person in a detention facility whom the actor knows or reasonably should know to be an employee of a detention facility, causes such employee to come into contact with blood, seminal fluid, urine, feces, saliva, mucus, vomit, or any toxic, caustic, or hazardous material by any means, including but not limited to throwing, tossing, or expelling such fluid or material.

(II) (A) Any adult or juvenile who is bound over for trial for the offense described in subparagraph (I) of this paragraph (f.5) subsequent to a preliminary hearing or after having waived the right to a preliminary hearing, any person who is indicted for or is convicted of any such offense, or any person who is determined to have provided blood, seminal fluid, urine, feces, saliva, mucus, or vomit to a person bound over for trial for, indicted for, or convicted of such an offense shall be ordered by the court to submit to a medical test for communicable diseases and to supply blood, feces, urine, saliva, or other bodily fluid required for the test. The results of such test shall be reported to the court or the court's designee, who shall then disclose the results to any victim of the offense who requests such disclosure. Review and disclosure of medical test results by the court shall be closed and confidential, and any transaction records relating thereto shall also be closed and confidential. If a person subject to a medical test for communicable diseases pursuant this sub-subparagraph (A) voluntarily submits to a medical test for communicable diseases, the fact of such person's voluntary submission shall be admissible in mitigation of sentence if the person is convicted of the charged offense.

(B) In addition to any other penalty provided by law, the court may order any person who is convicted of the offense described in subparagraph (I) of this paragraph (f.5) to meet all or any portion of the financial obligations of medical tests performed on and treatment prescribed for the victim or victims of the offense.

(C) At the time of sentencing, the court may order that an offender described in sub-subparagraph (B) of this subparagraph (II) be put on a period of probation for the purpose of paying the testing and treatment costs of the victim or victims; except that the period of probation, when added to any time served, shall not exceed the maximum sentence that can be imposed for the offense.

(III) (A) As used in this paragraph (f.5), "detention facility" means any building, structure, enclosure, vehicle, institution, or place, whether permanent or temporary, fixed or mobile, where persons are or may be lawfully held in custody or confinement under the authority of the state of Colorado or any political subdivision of the state of Colorado.

(B) As used in this paragraph (f.5), "employee of a detention facility" includes employees of the department of corrections, employees of any agency or person operating a detention facility, law enforcement personnel, and any other persons who are present in or in the vicinity of a detention facility and are performing services for a detention facility. "Employee of a detention facility" does not include a person lawfully confined in a detention facility.

(g) With intent to cause bodily injury to another person, he causes serious bodily injury to that person or another.

(2) (a) If assault in the second degree is committed under circumstances where the act causing the injury is performed upon a sudden heat of passion, caused by a serious and highly provoking act of the intended victim, affecting the person causing the injury sufficiently to excite an irresistible passion in a reasonable person, and without an interval between the provocation and the injury sufficient for the voice of reason and humanity to be heard, it is a class 6 felony.

(b) If assault in the second degree is committed without the circumstances provided in paragraph (a) of this subsection (2), it is a class 4 felony.

(b.5) Assault in the second degree by any person under subsection (1) of this section without the circumstances provided in paragraph (a) of this subsection (2) is a class 3 felony if the person who is assaulted, other than a participant in the crime, suffered serious bodily injury during the commission or attempted commission of or flight from the commission or attempted commission of murder, robbery, arson, burglary, escape, kidnapping in the first degree, sexual assault, sexual assault in the first or second degree as such offenses existed prior to July 1, 2000, or class 3 felony sexual assault on a child.

(c) If a defendant is convicted of assault in the second degree pursuant to paragraph (b), (c), (d), or (g) of subsection (1) of this section or paragraph (b.5) of this subsection (2), except with respect to sexual assault or sexual assault in the first degree as it existed prior to July 1, 2000, the court shall sentence the defendant in accordance with the provisions of section 18-1.3-406. A defendant convicted of assault in the second degree pursuant to paragraph (b.5) of this subsection (2) with respect to sexual assault or sexual assault in the first degree as it existed prior to July 1, 2000, shall be sentenced in accordance with section 18-1.3-401 (8) (e) or (8) (e.5).

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Source: L. 71: R&RE, p. 420, § 1. C.R.S. 1963: § 40-3-203. L. 76, Ex. Sess.: (1)(f) amended, p. 8, § 2, effective September 18. L. 79: (2) R&RE, p. 732, § 2, effective May 18. L. 81: (1)(f) amended and (1)(g) added, p. 973, § 7, effective July 1. L. 86: (1)(f) amended, p. 789, § 2, effective July 1; (2)(c) added, p. 777, § 3, effective July 1. L. 88: (2)(c) amended, p. 717, § 4, effective July 1. L. 90: (1)(f) amended, p. 992, § 2, effective April 5; (1)(f) amended, p. 986, § 9, effective April 24. L. 91: (2)(a) and (2)(c) amended, p. 405, § 9, effective June 6. L. 94: (1)(a) repealed, p. 1717, § 8, effective July 1; (1)(f) amended, p. 2655, § 138, effective July 1. L. 95: (1)(b) and (2)(c) amended and (2)(b.5) added, p. 1250, § 7, effective July 1. L. 97: (1)(f.5) added, p. 1591, § 1, effective July 1; (2)(a) amended, p. 1544, § 14, effective July 1; (1)(c) and (1)(f) amended, p. 1011, § 16, effective August 6. L. 98: (2)(c) amended, p. 1441, § 26, effective July 1. L. 2000: (1)(f) amended, p. 693, § 3, effective July 1. L. 2002: (2)(b.5) and (2)(c) amended, p. 757, § 2, effective July 1; (2)(c) amended, p. 1512, § 187, effective October 1. L. 2003: (1)(f) amended, p. 1430, § 17, effective April 29.

Editor's note: Amendments to subsection (1)(f) in Senate Bill 90-58 and House Bill 90-1255 were harmonized. Amendments to subsection (2)(c) in House Bill 02-1046 and House Bill 02-1225 were harmonized.

Cross references: For the legislative declaration contained in the 1994 act amending subsection (1)(f), see section 1 of chapter 345, Session Laws of Colorado 1994. For the legislative declaration contained in the 2002 act amending subsection (2)(c), see section 1 of chapter 318, Session Laws of Colorado 2002.

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Annotation
Analysis
I. General Consideration.
II. Elements of Offense.
III. Trial and Prosecution.

A. Evidence.

B. Jury.

C. Instructions.

IV. Verdict and Sentence.

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I. GENERAL CONSIDERATION.

Am. Jur.2d. See 6 Am. Jur.2d, Assault and Battery, §§ 34-38.

C.J.S. See 6A C.J.S., Assault & Battery, §§ 73, 74, 78-82, 91-94, 98.

Law reviews. For comment, "Colorado's First Degree Assault Statute," see 65 U. Colo. L. Rev. 975 (1994).

Annotator's note. Since § 18-3-203 is similar to former § 40-2-34, C.R.S. 1963, and laws antecedent thereto, relevant cases construing those provisions have been included in the annotations to this section.

Second degree assault is a lesser included offense of first degree assault. People v. Martinez, 189 Colo. 408, 540 P.2d 1091 (1975).

But second degree assault is not a lesser included offense of second degree murder because the mens rea for the two crimes is different. People v. Fry, 74 P.3d 360 (Colo. App. 2002), aff'd on other grounds, 92 P.3d 970 (Colo. 2004).

By establishing all of the essential elements of first degree assault, all of the essential elements of second degree assault would necessarily be proven. People v. Martinez, 189 Colo. 408, 540 P.2d 1091 (1975).

When the pertinent provisions of the first and second degree assault statutes are placed parallel to one another, it is obvious that the establishment of the essential elements of the greater necessarily establishes all of the elements required to prove the lesser. People v. Martinez, 189 Colo. 408, 540 P.2d 1091 (1975).

The basic element in both first and second degree assault is injury to a person's body, the difference being one of the degree of the injury. People v. Martinez, 189 Colo. 408, 540 P.2d 1091 (1975).

The means of committing the injury under second degree assault subsection (1)(b) is identical to first degree assault. People v. Martinez, 189 Colo. 408, 540 P.2d 1091 (1975).

The only difference in first and second degree assault under subsection (1)(a) of each section is that in first degree assault the serious bodily injury must be "by means of a deadly weapon," whereas under second degree assault the cause of serious bodily injury may be by any means. People v. Martinez, 189 Colo. 408, 540 P.2d 1091 (1975).

The mental state "knowingly" is implied by the statute and is required for a conviction of second degree assault on a police officer under subsection (1)(f). People v. Hart, 658 P.2d 857 (Colo. 1983).

Application of physical force, rather than a mere attempt to apply force, is required. People v. Schoondermark, 699 P.2d 411 (Colo. 1985).

Subsection (1)(f) creates a separate and distinct offense which turns on substantial differences which have a reasonable relationship to the persons involved and the public purposes to be achieved. People v. Gibson, 623 P.2d 391 (Colo. 1981).

The term "serious bodily injury" is not facially unconstitutionally vague. Defendant's challenge that "serious bodily injury" included subjective undefined terms making it constitutionally infirm did not show the term was so vague that a person of ordinary intelligence must guess at its meaning and may differ as to its application. The term was also constitutional as applied to the defendant. People v. Summitt, 104 P.3d 232 (Colo. App. 2004), aff'd in part and rev'd in part on other grounds, 132 P.3d 320 (Colo. 2006).

The terms "serious bodily injury" and "bodily injury" do not suffer from an equal protection problem, because they only overlap if serious bodily injury is given an unreasonably broad interpretation. People v. Summitt, 104 P.3d 232 (Colo. App. 2004), aff'd in part and rev'd in part on other grounds, 132 P.3d 320 (Colo. 2006).

"Serious bodily injury" and "bodily injury" constitutionally distinguishable. Section 18-3-202 (1)(a) and subsection (1)(a) of this section, thus, do not proscribe identical conduct and therefore do not violate equal protection. People v. Elam, 198 Colo. 170, 597 P.2d 571 (1979).

"Violently applies physical force." The phrase "violently applies physical force," in subsection (1)(f), does not connote a specific intent to inflict serious bodily injury. People v. Walker, 634 P.2d 1026 (Colo. App. 1981).

In subsection (1)(f), the mental state of "knowingly" also applies to the element of violently applying physical force. People v. Saiz, 660 P.2d 2 (Colo. App. 1982).

There is a sufficient pragmatic difference between subsection (1)(e) of the first degree assault statute and the second degree assault statute so as not to violate the defendant's constitutional guarantee of equal protection. People v. Jackson, 194 Colo. 93, 570 P.2d 527 (1977).

Equal protection not violated by general criminal attempt statute. There was no violation of equal protection in defendant's conviction under the specific attempt provision of second degree assault statute, despite defendant's contention that the general criminal attempt statute, § 18-2-101, proscribes the same conduct. People v. Weller, 679 P.2d 1077 (Colo. 1984).

This section does not proscribe conduct identical to § 18-3-202 and therefore does not violate equal protection. People v. Brake, 196 Colo. 575, 588 P.2d 869 (1979).

Subsection (1)(b) and § 18-2-101 (1) do not proscribe the same conduct, and disparity in applicable punishment does not violate equal protection guarantees. People v. Marez, 916 P.2d 543 (Colo. App. 1995).

But the sentencing scheme established in subsection (2)(c) did not meet the requirements of equal protection as applied to defendant's sentences because it mandated the imposition of a greater punishment for an attempt to cause bodily injury than for an attempt to cause serious bodily injury. People v. Marez, 916 P.2d 543 (Colo. App. 1995).

Subsection (1)(c) does not violate equal protection by punishing a person who assaults a firefighter acting as a paramedic more severely than a person who assaults a non-firefighter paramedic. The more serious class of assault created by subsection (1)(c) is based on differences that are real and reasonably related to the purposes of the statute. People v. Montoya, 104 P.3d 303 (Colo. App. 2004).

Second degree assault on a peace officer is distinguishable from both third degree assault, as described in § 18-3-204, and resisting arrest, as described in § 18-8-103, and therefore these sections do not violate equal protection. This section requires that the defendant act intentionally, whereas both third degree assault and resisting arrest require only that the defendant act knowingly. Further, this section requires proof that the defendant intended to prevent a police officer from performing a lawful duty, which is not required for a conviction for third degree assault. And finally, this section requires the defendant to intend to cause bodily harm, while resisting arrest requires only that the defendant use or threaten to use physical force. People v. Whatley, 10 P.3d 668 (Colo. App. 2000).

Second degree assault described under subsection (1)(d) of this section is distinguishable from vehicular assault, described in § 18-3-205, and therefore these sections do not violate equal protection. The statutes differ in three primary ways. Second degree assault applies to a range of unspecified conduct, while vehicular assault applies narrowly to driving or operating a motor vehicle. Second degree assault can apply to acts of omission, while vehicular assault requires acts of commission. Second degree assault applies to any deadly weapon, which may include a motor vehicle, while vehicular assault requires the defendant's reckless driving or operation of a motor vehicle to have proximately caused the serious bodily injury. People v. Stewart, 55 P.3d 107 (Colo. 2002).

The general assembly is free to prescribe different punishments for conduct prescribed to result in varying degrees of social consequences, and the distinction between this section and § 18-8-103 is not arbitrary or inadvertent. Therefore this section is not unconstitutional. People v. Wieder, 693 P.2d 1006 (Colo. App. 1984), aff'd, 722 P.2d 396 (Colo. 1986).

Conviction not reversed when first degree assault statute declared unconstitutional. A conviction on second degree assault where defendant was charged with both first degree and second degree assault is not an inconsistent verdict requiring reversal when the first degree assault statute is later declared unconstitutional by reason of not being distinguishable from the second degree assault statute because the implicit acquittal of first degree assault is not a verdict with which the conviction can be inconsistent. People v. Trout, 198 Colo. 98, 596 P.2d 762 (1979).

Constitutionality of 1976 amendment. Because the call of the governor generally concerned protection of police officers and others while carrying out their duties, the 1976 amendment adding the words "or in custody" to the statute governing assaults upon police officers definitely fell within the subject matter of the call and was therefor constitutional. People v. Wieder, 693 P.2d 1006 (Colo. App. 1984), aff'd, 722 P.2d 396 (Colo. 1986).

Subsection (1)(b) violates equal protection guarantees, because a more severe sentence is imposed for an attempt to commit bodily injury than an attempt to commit serious bodily injury. People v. Duc Nguyen, 900 P.2d 37 (Colo. 1995); People v. Gallegos, 904 P.2d 486 (Colo. 1995); People v. Mitchell, 904 P.2d 486 (Colo. 1995); People v. Palmer, 944 P.2d 634 (Colo. App. 1997), aff'd in part and reversed in part on other grounds, 964 P.2d 524 (Colo. 1998).

The only distinction between conduct proscribed under subsection (1)(a) and under subsection (1)(g) is that subsection (1)(a) requires the intent to cause serious bodily injury whereas subsection (1)(g) requires the intent to cause only bodily injury. Subsection (2)(c), however, mandates the imposition of a more severe sentence for a crime under subsection (1)(g) than for one under subsection (1)(a). When an offender who acts with a less culpable intent may receive a greater penalty than the offender who acts with a greater culpable intent, such a statutory scheme is unreasonably structured and does not meet the requirements of equal protection, even though the two offenses result in the same harm. Smith v. People, 852 P.2d 420 (Colo. 1993); People v. Blizzard, 852 P.2d 418 (Colo. 1993) (decided under law in effect prior to 1991 amendment).

Fists may be a deadly weapon, for purposes of subsection (1)(b), if in the manner they are used or intended to be used they are capable of producing death or serious bodily injury. People v. Ross, 831 P.2d 1310 (Colo. 1992).

Under subsection (1)(d), any object, including a foot, may be a deadly weapon when used to start an unbroken, foreseeable chain of events that results in serious bodily injury. The object does not have to be the direct cause of the injury. Where defendant kicked the victim in the back, causing her to fall down a flight of stairs, it was irrelevant that her injuries were caused by the stairs rather than the defendant's foot. The defendant's foot qualified as a deadly weapon because he used it to set in motion a sequence of events causing a serious bodily injury. People v. Saleh, 45 P.3d 1272 (Colo. 2002).

Subsection (1)(f) applies to field arrest situation. The first clause of (1)(f) which makes no reference to a detention facility employee and uses the disjunctive "or," in addition to a court of appeal's case holding that "confined" has a meaning different from and more restrictive than "custody," makes it plain that (1)(f) applies to field arrest situations as well as to detention facilities. People v. Armstrong, 720 P.2d 165 (Colo. 1986); Wieder v. People, 722 P.2d 396 (Colo. 1986).

An arrest precedes "in custody" for purposes of subsection (1)(f). What constitutes an arrest and what constitutes in custody turn on the same standard, and it is for the trier of fact to determine whether, under the totality of the circumstances, the defendant was under arrest and thus may be guilty of second degree assault. People v. Armstrong, 720 P.2d 165 (Colo. 1986).

Where defendant was charged with both resisting arrest and second degree assault, one of the factors in determining whether the defendant is guilty of one or both of the charges 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 officers' efforts to arrest him and the actions which lead to the injury of the officers. People v. Armstrong, 720 P.2d 165 (Colo. 1986).

Once an arrest is made, a person in custody who uses violence against a peace officer commits second degree assault under subsection (1)(f). People v. Stanley, 56 P.3d 1241 (Colo. App. 2002).

The unlawfulness of a detention does not absolve a person of liability for criminal conduct committed during that detention. People ex rel. D.S.L., 134 P.3d 522 (Colo. App. 2006).

Subsection (1)(f) is not unconstitutionally vague, in violation of the due process clauses of the Colorado and United States Constitutions. People v. Schoondermark, 699 P.2d 411 (Colo. 1985).

Constitution proscribes retrial when conviction impliedly acquits defendant. The double jeopardy clause proscribes retrial when a felony menacing conviction impliedly acquits the defendant of a second degree assault charge. Ortiz v. District Court, 626 P.2d 642 (Colo. 1981).

The specific intent required for second degree assault is sufficiently distinguishable from the less culpable mental state required for third degree assault to justify a harsher penalty for the former. People v. Sparks, 914 P.2d 544 (Colo. App. 1996).

Third degree assault is lesser included offense of second degree assault. People v. Thompson, 187 Colo. 252, 529 P.2d 1314 (1975).

Because two counts of second degree assault were premised on identical evidence, once the trial court concluded that the evidence was sufficient to submit an instruction regarding third degree assault as a lesser included offense to count one, it was obligated to make the same conclusion with respect to the defendant's request for a lesser nonincluded instruction as to count two. People v. Castro, 952 P.2d 762 (Colo. App. 1998).

Third degree assault held to be lesser included offense. The offense of assault in the third degree is a lesser included offense of assault in the second degree upon a peace officer. People v. Annan, 665 P.2d 629 (Colo. App. 1983).

Only difference between second and third degree assault is degree of injury. People v. Thompson, 187 Colo. 252, 529 P.2d 1314 (1975).

Assault is lesser included offense of robbery. Since simple assault contains no elements not contained within attempted aggravated robbery, while the latter contains more elements than the former, the former is included within the latter as a lesser offense. People v. Velasquez, 178 Colo. 264, 497 P.2d 12 (1972).

Assault with a deadly weapon is a lesser included offense of aggravated robbery and since the jury convicted the defendant of aggravated robbery, his conviction for the included offense of assault with a deadly weapon must be set aside. People v. Bugarin, 181 Colo. 62, 507 P.2d 875 (1973).

It is possible to commit an aggravated robbery without contemporaneously perpetrating a second degree assault. People v. Grant, 40 Colo. App. 46, 571 P.2d 1111 (1977); People v. Toomer, 43 Colo. App. 182, 604 P.2d 1180 (1979).

There is no offense of attempt to commit an assault with a deadly weapon in Colorado. Allen v. People, 175 Colo. 113, 485 P.2d 886 (1971).

Offense of assault and battery is a matter of mixed state and local concern. City of Aurora v. Martin, 181 Colo. 72, 507 P.2d 868 (1973).

In determining whether to accept a plea of nolo contendere, the court must inquire of the defendant as to whether he understands the nature of the charge and its elements, and this is of utmost importance in connection with a felony assault charge with a specific intent to prevent a police officer from performing his lawful duty and to cause bodily injury. People v. Kelly, 189 Colo. 31, 536 P.2d 39 (1975).

Statement of elements of the charge of second degree assault did not give pleading defendant notice of the true nature of the charge when, by way of further explanation, the court misstated the deadly weapon element as mere possession. People v. Cabral, 698 P.2d 234 (Colo. 1985).

Case remanded to district court for a new preliminary hearing because district court had interrupted prior hearing before a proper determination of probable cause for second degree assault charges could be made. People v. Nygren, 696 P.2d 270 (Colo. 1985).

The word "confined" in subsection (1)(f) connotes detention in an institution . People v. Olinger, 39 Colo. App. 491, 566 P.2d 1367 (1977).

Applied in People v. Trujillo, 190 Colo. 45, 543 P.2d 523 (1975); Miller v. District Court, 193 Colo. 404, 566 P.2d 1063 (1977); People v. Conner, 195 Colo. 525, 579 P.2d 1160 (1978); Brutcher v. District Court, 195 Colo. 579, 580 P.2d 396 (1978); People v. Kreiser, 41 Colo. App. 210, 585 P.2d 301 (1978); People v. Thompson, 197 Colo. 299, 592 P.2d 803 (1979); People v. Waggoner, 196 Colo. 578, 595 P.2d 217 (1979); Perea v. District Court, 199 Colo. 27, 604 P.2d 25 (1979); People v. Martinez, 43 Colo. App. 419, 608 P.2d 359 (1979); People v. Parsons, 199 Colo. 421, 610 P.2d 93 (1980); People v. Johnson, 644 P.2d 34 (Colo. App. 1980); People v. Tijerina, 632 P.2d 570 (Colo. 1981); Richardson v. District Court, 632 P.2d 595 (Colo. 1981); People in Interest of R.G., 630 P.2d 89 (Colo. App. 1981); People v. District Court, 652 P.2d 582 (Colo. 1982); People v. Dillon, 655 P.2d 841 (Colo. 1982); People v. Hamilton, 662 P.2d 177 (Colo. 1983); People v. Reedy, 705 P.2d 1032 (Colo. App. 1985).

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II. ELEMENTS OF OFFENSE.

Essential elements of assault are an unlawful attempt to commit a violent injury and the present ability to commit a violent injury, and these elements must be shown to have existed at the time in order to sustain a charge of assault. People v. Cardwell, 181 Colo. 421, 510 P.2d 317 (1973).

"Reasonable person" means an objectively reasonable individual and not a subjectively reasonable one possessing the individual defendant's personality traits or defects. Under the circumstances, the defendant did not act as a reasonable person would in the same situation. People v. Howard, 89 P.3d 441 (Colo. App. 2003).

Defendant was unreasonable in believing that police officer was not performing lawful duty and intended to commit crime of kidnapping when officer, in full police uniform, explained purpose of warrantless entry to check on safety of an infant at the mother's request. People v. Malczewski, 744 P.2d 62 (Colo. 1987).

A paramedic employed by the fire department is included as a "firefighter" for purposes of subsection (1)(c). The statute is not limited to firefighters performing fire suppression functions. People v. Montoya, 104 P.3d 303 (Colo. App. 2004).

An attempt only requires some overt act beyond mere preparation. People v. Marlott, 191 Colo. 304, 552 P.2d 491 (1976); People v. Weller, 679 P.2d 1077 (Colo. 1984).

And it need not be the last proximate act necessary to consummate a battery. People v. Marlott, 191 Colo. 304, 552 P.2d 491 (1976).

Certain weapons are by their very design and make lethal in nature and a trial court should rule as a matter of law that they are deadly weapons. Other instruments or things, including shoes, though perhaps not deadly weapons per se, are within the meaning of our assault with a deadly weapon statute, depending upon the nature of the instrument and the manner in which the instrument or thing is used in accomplishing the assault. Grass v. People, 172 Colo. 223, 471 P.2d 602 (1970).

In order to prove first degree assault and crime of violence instead of second degree assault and crime of violence, an additional element must be proven — that the use of the deadly weapon actually caused the serious bodily injury. People v. Mozee, 723 P.2d 117 (Colo. 1986).

Specific intent to do bodily injury can be inferred from the circumstances of the case where testimony showed that the defendant stabbed victim with a hunting knife. People v. Borrego, 187 Colo. 217, 529 P.2d 639 (1974).

Requisite intent to sustain a conviction under this section may be inferred from the circumstances of the case. People v. Borrego, 187 Colo. 217, 529 P.2d 639 (1974).

Specific intent to cause bodily injury may be found from the defendant's actions and the reasonable inferences which may be drawn from the circumstances of the case. People v. White, 191 Colo. 353, 553 P.2d 68 (1976).

Where the defendant was screaming and yelling at the victim and the victim's injuries showed he was struck with a powerful force directly in the face, the evidence was sufficient to establish specific intent to cause bodily injury. People v. Ross, 819 P.2d 507 (Colo. App. 1991).

Present ability must be construed in the light of the particular situation when a person is charged with an assault. In construing the criminal assault statute, factors such as the gravity of the potential harm and the uncertainty of the result are to be included in appraising the actor's present ability. Allen v. People, 175 Colo. 113, 485 P.2d 886 (1971).

Specific intent is an essential element of the proof of assault to be established beyond a reasonable doubt, but this requisite specific intent may be drawn from the circumstances of the case. People v. Prante, 177 Colo. 243, 493 P.2d 1083 (1972).

The mental state "intentionally" applies to each element of the offense. For jury instructions, the best practice is to offset the mental state requirement so that it applies to all elements. Failure to do so does not constitute plain error. People v. Rivas, 77 P.3d 882 (Colo. App. 2003).

"Attempted to cause" should not be included in the jury instruction for second degree assault. However, error was not plain error since the defendant did not contest that element at trial. People v. Rivas, 77 P.3d 882 (Colo. App. 2003).

Conviction for "second degree assault with intent to cause bodily injury" not legally sufficient. Where the jury finds the accused guilty of "second degree assault with intent to cause bodily injury" and the verdict omits the word "serious," it is not clear from the language of the verdict whether the jury concluded that the accused, in committing the assault, had the intent to cause serious bodily injury, and, thus, is guilty of second degree assault or whether he intended to cause only bodily injury and, thus, is guilty of third degree assault; therefore, the verdict is too uncertain to be legally sufficient. Kreiser v. People, 199 Colo. 20, 604 P.2d 27 (1979).

Subsection (1)(d) requires that a defendant consciously disregard a substantial and unjustifiable risk that a result will occur (or that a circumstance exists), not that a defendant disregard the result that ultimately does occur. Therefore, the people did not have to prove that defendant had knowledge of the existence of the specific deadly weapon held by the victim of the assault. People v. Brown, 677 P.2d 406 (Colo. App. 1983).

Elements of subsection (1)(f). One of the elements of assault in the second degree is that the person committing the offense knows or reasonably should know that the victim is a person engaged in the performance of duties while employed by or under contract with a detention facility. People v. Akers, 712 P.2d 1058 (Colo. App. 1985).

Because the statute includes the phrase "lawfully confined or in custody," it is not necessary that defendant be incarcerated at the time of the assault, but may merely be in the lawful custody of a peace officer. People v. Marquez-Lopez, 952 P.2d 788 (Colo. App. 1997).

Detention of a suspect for further investigation rather than arrest is sufficient to establish custody under subsection (1)(f). People v. Ortega, 899 P.2d 236 (Colo. App. 1994); People v. Marquez-Lopez, 952 P.2d 788 (Colo. App. 1997).

Formal arrest not required by subsection (1)(f); peace officer need only apply a level of physical control over the person being detained so as reasonably to ensure that the person does not leave. People v. Rawson, 97 P.3d 315 (Colo. App. 2004).

Subsection (1)(f.5) applies to an individual lawfully confined in a vehicle who is lawfully held in custody and whose victim is a law enforcement officer. Although the language "in custody" contained in subsection (1)(f) is not included in subsection (1)(f.5), the legislature intended that the statute would apply to individuals under arrest and confined to a patrol vehicle. People v. Miller, 97 P.3d 171 (Colo. App. 2003).

Felony menacing is not a lesser included offense of second-degree assault. The offense of second-degree assault does not establish every essential element of felony menacing and, therefore, the merger doctrine does not apply. People v. Truesdale, 804 P.2d 287 (Colo. App. 1990).

Obstruction of a peace officer under § 18-8-104 is a lesser included offense of second degree assault under subsection (1)(c) and (1)(f) since all of the elements contained in the definition of obstruction of a peace officer would be necessarily established by the proof of the elements of second degree assault. People v. Stafford, 890 P.2d 244 (Colo. App. 1994).

Trial court's failure to instruct the jury that obstruction of a peace officer under § 18-8-104 was a lesser included offense of second degree assault under subsection (1)(c) was error requiring a new trial where defendant acknowledged the officers sustained bodily injury but there was no admission that he intended to act in a manner that would cause the injury. People v. Stafford, 890 P.2d 244 (Colo. App. 1994).

Trial court's failure to instruct the jury that obstruction of a peace officer under § 18-8-104 was a lesser included offense of second degree assault under subsection (1)(f) was error requiring a new trial where defendant testified that the only action he volitionally took after the first officer entered the cell was to raise his arms. People v. Stafford, 890 P.2d 244 (Colo. App. 1994).

Crime of second-degree assault requires the intent to cause bodily injury to another person and causing such injury to any person by means of a deadly weapon. People v. Chavez, 730 P.2d 321 (Colo. 1986).

Trial court's instruction to jury that second-degree assault involved force or violence as a matter of law was proper for conviction under statute prohibiting possession of weapons by previous offenders notwithstanding fact that second degree assault could involve injury to another resulting from the administration of a drug or other substance. People v. Allaire, 843 P.2d 38 (Colo. App. 1992).

Equal protection principles are violated by § 18-3-209 (3), which provides that persons charged with third degree assault against the elderly commit a greater classification of crime and may not raise the issue of provocation, while provocation may be raised by a person charged with second degree assault, which is classified as a lower class crime than third degree assault. People v. Suazo, 867 P.2d 161 (Colo. App. 1993) (decided under law in effect prior to 1991 amendment).

Provocation as used in this section is neither a culpable mental state nor part of a culpable mental state. People v. Suazo, 867 P.2d 161 (Colo. App. 1993).

In addition, this section does not require that the actor know the age of the victim. People v. Suazo, 867 P.2d 161 (Colo. App. 1993).

The provocation language in subsection (2)(b) is a sentence mitigating factor that does not involve an element of the offense, give rise to an affirmative defense, or create a separate offense. People v. Howard, 89 P.3d 441 (Colo. App. 2003).

The provocation language in subsection (2)(b) is not a sentence enhancer requiring an Apprendi jury finding. An Apprendi jury finding is only necessary when the determination of a fact increases the punishment beyond the range the defendant is already subject to. In the case of second degree assault, before the jury can consider the issue of provocation, they have to find the defendant guilty of second degree assault — subjecting the defendant to a class 4 felony. At that point, the jury may consider provocation, and if they find provocation the defendant is subject to a class 6 felony. So, the factual issue of provocation decreases the punishment range making Apprendi inapplicable. People v. Howard, 89 P.3d 441 (Colo. App. 2003).

A fist is not a deadly weapon for the purposes of subsection (1)(b). People v. Ross, 819 P.2d 507 (Colo. App. 1991).

It is no defense to show that specific intent was directed at someone else other than the victim. People v. Tafoya, 179 Colo. 438, 501 P.2d 118 (1972).

The department of corrections cannot be the "intended victim," within the meaning of subsection (2)(a), and therefore a trial court's refusal to allow defendant to present a provocation defense was not error. People v. Akers, 712 P.2d 1058 (Colo. App. 1985).

Under subsection (2)(a), the class of the felony may be reduced even though the person committing the assault has still engaged in the same conduct with the same mental culpability required for conviction of second degree assault. People v. Duran, 991 P.2d 313 (Colo. App. 1999).

Extent of wound does not negate intent. The extent of the resulting wound from stabbing by defendant does not negate the defendant's intent necessary for conviction under this section. People v. Borrego, 187 Colo. 217, 529 P.2d 639 (1974).

Requirement of custody or confinement. When assaults on police officers occurred, the defendant's arrest was complete and he was not free to leave the presence of the officers, and thus he was in custody for purposes of the statute. People v. Weider, 693 P.2d 1006 (Colo. App. 1984), aff'd, 722 P.2d 396 (Colo. 1986).

A formal arrest is not always required before a person may be deemed to be in custody. What is required is that the peace officer have applied a level of physical control over the person being detained so as reasonably to ensure that the person does not leave. People v. Ortega, 899 P.2d 236 (Colo. App. 1994); People ex rel. D.S.L., 134 P.3d 522 (Colo. App. 2006).

Evidence sufficient to show specific intent. People v. Tafoya, 179 Colo. 438, 501 P.2d 118 (1972).

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III. TRIAL AND PROSECUTION.
A. Evidence.

Eyewitness testimony established use of weapon. Where three witnesses for the people testified only that they did not see the defendant with a knife, a fourth witness testified unequivocally to possession of a knife by the defendant, and no witness of the people stated that the defendant did not have a knife, there is no internal contradiction, and the evidence of one eyewitness, if believed by the jury, is sufficient to establish that defendant had in his possession a knife and used it to inflict the wounds on the victim of the assault. People v. Tafoya, 179 Colo. 438, 501 P.2d 118 (1972).

Evidence sufficient to sustain convictions. People v. White, 191 Colo. 353, 553 P.2d 68 (1976); People v. Mason, 632 P.2d 616 (Colo. App. 1981).

Sufficient evidence that defendant intended to cause bodily injury where officers present during altercation testified that during the struggle defendant was kicking at all of the officers and continued to kick during efforts to subdue him. People v. Stafford, 890 P.2d 244 (Colo. App. 1994).

Evidence sufficient to establish specific intent to cause injury. The evidence presented at trial, considered in the light most favorable to the people, showed the defendant was oriented and had control over his body and speech. People v. Howard, 89 P.3d 441 (Colo. App. 2003).

B. Jury.

Whether defendant established heat of passion claim is issue for jury to determine. Thompson v. Ricketts, 500 F. Supp. 688 (D. Colo. 1980).

When lesser offense submitted to jury. Where there is no evidence of the specific intent required to determine the defendant guilty of the precise offense charged in the information, or where the evidence might be insufficient to remove the reasonable doubt which might be in the minds of the jury as to the intent, under the same evidence the defendant might be found guilty of simple assault. Barnhisel v. People, 141 Colo. 243, 347 P.2d 915 (1959).

Trial by jury of less than twelve. A person who is charged with second degree assault, which is a class 4 felony, may elect to be tried by a jury of fewer than 12, but not less than six persons. People v. Byerley, 635 P.2d 542 (Colo. 1981).

C. Instructions.

Where it was possible for the jury to entertain a reasonable doubt as to defendant's guilt of attempted robbery, and at the same time to be convinced by reason of defendant's admissions that he was guilty of making an assault upon the complaining witness, the evidence justified the giving of an instruction on simple assault as requested in order to submit the lesser included offense to a jury. People v. Velasquez, 177 Colo. 264, 497 P.2d 12 (1972).

Where the jury is unable to unanimously find all the elements of a particular offense, the trial court should instruct the jury to return a guilty verdict on the lesser offense so long as the jurors agree that the defendant is guilty of each element of the lesser offense. People v. Brighi, 755 P.2d 1218 (Colo. 1988).

An optimal instruction would state that attempt requires some substantial step, or some overt act beyond mere preparation. People v. Weller, 679 P.2d 1077 (Colo. 1984).

But court is not required to give the definition of attempt found in the general criminal attempt statute, § 18-2-101. People v. Weller, 679 P.2d 1077 (Colo. 1984).

No plain error found when court failed to instruct on the mental state needed to commit second degree assault. People v. Wells, 734 P.2d 655 (Colo. App. 1986).

When there is no doubt on intent, court should deny third degree assault instruction. People v. Gibson, 623 P.2d 391 (Colo. 1981).

Where there was no evidence that the defendant's assault with a deadly weapon was made with anything less than a conscious disregard to the risk to the victim, the court did not err in refusing to instruct the jury on the lesser included offense of third degree assault. People v. Workman, 885 P.2d 298 (Colo. App. 1994).

Plain error found when court failed to instruct the jury on the mental state needed for the act of "violently apply[ing] physical force." People v. Stafford, 890 P.2d 244 (Colo. App. 1994).

Instruction on deadly weapons proper. The trial court did not err in generally instructing the jury that a shoe was not in and of itself a deadly or dangerous weapon and that in determining whether an instrument, not inherently deadly or dangerous, assumes the characteristics of a deadly weapon the jury should consider the nature of the instrument or thing, the manner of its use, the location on the body of the injuries inflicted and the extent of such injuries. Grass v. People, 172 Colo. 223, 471 P.2d 602 (1970).

A defendant's learning of an injury to a close relative may create a jury question as to provocation in assault cases. No requirement, however, exists under this section for the fact finder to determine whether a sufficient interval has passed for the "voice of reason and humanity to be heard." Although, as a matter of law, the court may find a sufficient "cooling off" period has occurred. People v. Suazo, 867 P.2d 161 (Colo. App. 1993).

Trial court had no duty to provide an instruction regarding the elements of lesser, non-included offense of obstructing a peace officer. The evidence was undisputed that defendant was in custody. There was no rational basis on which the jury could have acquitted defendant of second degree assault and convicted him of obstructing a police officer. People v. Ortega, 899 P.2d 236 (Colo. App. 1994).

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IV. VERDICT AND SENTENCE.

Subsection (2)(c) requires mandatory sentencing under the provisions of § 16-11-309. The intent of the legislature was to mandate sentencing under § 16-11-309 irrespective of any allegation of a violent crime and irrespective of a specific finding by the trial court that a violent crime has been committed. People v. Terry, 791 P.2d 374 (Colo. 1990).

Thus, trial court's enhanced sentence for second degree assault with a deadly weapon was not error even though jury did not specifically find that defendant had committed a crime of violence. An offense committed under subsection (1)(b) is a per se crime of violence under subsection (2)(c) and requires enhanced sentencing under § 16-11-309 without the necessity of pleading or proving a separate crime of violence. People v. Hayward, 55 P.3d 803 (Colo. App. 2002).

Subsection (1)(b), which includes attempted assault, combined with the sentencing requirements of subsection (2)(c) violates equal protection requirements because attempted second degree assault, when treated as a crime of violence, would carry a presumptive penalty of five to sixteen years imprisonment and attempted first degree assault would carry a presumptive penalty of two to eight years imprisonment. People v. Nguyen, 900 P.2d 37 (Colo. 1995) (decided under former subsection (1)(b) as it existed prior to amendment in 1995).

The appropriate cure for the constitutional infirmity of subsection (1)(b), consistent with legislative intent, is to strike the crime of violence sentencing as it applies to attempted second degree assault. People v. Nguyen, 900 P.2d 37 (Colo. 1995) (decided under former subsection (1)(b) as it existed prior to amendment in 1995).

A defendant who is convicted of second degree assault on a police officer is subject to the mandatory sentencing range specified for crimes of violence in § 16-11-309, due to the mandatory language of subsection (2)(c). However, the defendant is not subject to sentencing for an extraordinary risk crime under § 18-1-105 (9.7) unless the prosecution has alleged and proved the elements of a crime of violence, as described in § 16-11-309. In sentencing the defendant, the trial court stated that it was sentencing him to a minimum mandatory sentence of five years. Since this sentence presumes application of the sentence enhancing provisions for extraordinary risk crimes, the sentence was imposed in error and the case was remanded for resentencing. People v. Banks, 9 P.3d 1125 (Colo. 2000).

The specific aggravator in subsection (1)(f) applies as opposed to any general aggravator found in § 18-1.3-401. Subsection (1)(f) refers to the second degree assault on a correctional officer and contains its own aggravator. Therefore, the specific aggravator applies, not a general one. People v. Willcoxon, 80 P.3d 817 (Colo. App. 2002).

The consecutive sentencing provision in subsection (1)(f) does not apply to juveniles who are adjudicated delinquent and sentenced to the department of human services. People ex rel. D.S.L., 134 P.3d 522 (Colo. App. 2006).

Third degree assault is a lesser included offense of second degree assault. The third degree assault conviction merges into the conviction for second degree assault. People v. Howard, 89 P.3d 441 (Colo. App. 2003).


 

18-3-204. Assault in the third degree.

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A person commits the crime of assault in the third degree if the person knowingly or recklessly causes bodily injury to another person or with criminal negligence the person causes bodily injury to another person by means of a deadly weapon. Assault in the third degree is a class 1 misdemeanor and is an extraordinary risk crime that is subject to the modified sentencing range specified in section 18-1.3-501 (3).

 

Source: L. 71: R&RE, p. 421, § 1. C.R.S. 1963: § 40-3-204. L. 77: Entire section amended, p. 961, § 10, effective July 1. L. 2004: Entire section amended, p. 635, § 4, effective August 4.

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Annotation

Am. Jur.2d. See 6 Am. Jur.2d, Assault and Battery, §§ 34-38.

C.J.S . See 6A C.J.S., Assault and Battery, §§ 73, 74, 78-82, 91-94.

Annotator's note. Since § 18-3-204 is similar to former § 40-2-35, C.R.S. 1963, relevant cases construing that provision have been included in the annotations to this section.

Essential elements of assault are an unlawful attempt to commit a violent injury and the present ability to commit a violent injury, and these elements must be shown to have existed at the time in order to sustain a charge of assault. People v. Cardwell, 181 Colo. 421, 510 P.2d 317 (1973).

Assault is an unlawful attempt coupled with a present ability to commit a violent injury on the person of another. Sims v. People, 177 Colo. 229, 493 P.2d 365 (1972).

Conduct which creates substantial risk of serious bodily injury not element of offense. The establishment of every element of third degree assault would not necessarily include proving conduct which creates a substantial risk of serious bodily injury, an element of reckless endangerment. Third degree assault requires proof of bodily injury but not proof of a substantial risk of serious bodily injury. Therefore reckless endangerment is not a lesser included offense of third degree assault. People v. Berner, 42 Colo. App. 520, 600 P.2d 112 (1979).

Separate blows in single criminal transaction are single offense. Where two blows were delivered to the same person within a short period of time as part of a continuous harangue to extract information, these two blows were not separate transactions but were part of a single criminal transaction arising from a single impulse. Therefore it was error to charge and convict defendant twice for the same transaction. People v. Berner, 42 Colo. App. 520, 600 P.2d 112 (1979).

Offense of assault and battery is a matter of mixed state and local concern. City of Aurora v. Martin, 181 Colo. 72, 507 P.2d 868 (1973).

It is no defense to show that the specific intent was directed at someone else other than the victim. People v. Tafoya, 179 Colo. 438, 501 P.2d 118 (1972).

Mental impairment evidence admissible to negate mens rea. Opinion evidence of a mental impairment due to a mental disease or defect may be admitted to negate the mens rea for a nonspecific intent crime such as assault in the third degree. Hendershott v. People, 653 P.2d 385 (Colo. 1982), cert. denied, 459 U.S. 1225, 103 S. Ct. 1232, 75 L. Ed.2d 466 (1983).

Evidence sufficient to show specific intent. People v. Tafoya, 179 Colo. 438, 501 P.2d 118 (1972).

Bodily injury need not be of a crippling or otherwise incapacitating nature to be within the statutory prohibition. People v. Lobato, 187 Colo. 285, 530 P.2d 493 (1975).

BB gun can be a deadly weapon. Testimony that if a person hit with a BB in a vulnerable area of the body, such as the eyes, the BB could cause serious bodily injury was sufficient to prove that the BB gun was a deadly weapon. People in Interest of J.R., 867 P.2d 125 (Colo. App. 1993).

The issue in evaluating whether a device is a deadly weapon is whether, in the manner it was used, the device could have caused death or serious bodily injury. The fact that in this particular case death or serious bodily injury did not occur is irrelevant. People in Interest of J.R., 867 P.2d 125 (Colo. App. 1993).

Third degree assault is a lesser included offense of second degree assault. People v. Thompson, 187 Colo. 252, 529 P.2d 1314 (1975); People v. Annan, 665 P.2d 629 (Colo. App. 1983); People v. Brown, 677 P.2d 406 (Colo. App. 1983); People v. Smith, 682 P.2d 493 (Colo. App. 1983); People v. Howard, 89 P.3d 441 (Colo. App. 2003).

The third degree assault conviction merges into the conviction for second degree assault. People v. Howard, 89 P.3d 441 (Colo. App. 2003).

And only difference between second and third degree assault is degree of injury. People v. Thompson, 187 Colo. 252, 529 P.2d 1314 (1975); People v. Brown, 677 P.2d 406 (Colo. App. 1983).

Third degree assault is distinguishable from second degree assault on a peace officer, as described in § 18-3-203, and resisting arrest, as described in § 18-8-103, and therefore these sections do not violate equal protection. This section and § 18-8-103 require that the defendant act knowingly, whereas § 18-3-203 requires that the defendant act intentionally. Further, § 18-3-203 requires proof that the defendant intended to prevent a police officer from performing a lawful duty, which is not required for a conviction under this section. People v. Whatley, 10 P.3d 668 (Colo. App. 2000).

Proper to submit different degrees of assault to jury. Where the trial judge submitted to the jury not only the offense of assault with a deadly weapon, but also simple assault as a lesser included offense, this was not error. Plainly, an instruction on general intent was necessary for simple assault, and it was also necessary for the court to instruct on specific intent for the charge of assault with a deadly weapon. Arellano v. People, 174 Colo. 456, 484 P.2d 801 (1971).

Because two counts of second degree assault were premised on identical evidence, once the trial court concluded that the evidence was sufficient to submit an instruction regarding third degree assault as a lesser included offense to count one, it was obligated to make the same conclusion with respect to the defendant's request for a lesser nonincluded instruction as to count two. People v. Castro, 952 P.2d 762 (Colo. App. 1998).

Defendant's prior conviction of assault did not bar his subsequent conviction of sexual assault, as offenses had distinct elements that were not subsumed by each other. People v. Williams, 736 P.2d 1229 (Colo. App. 1986).

When there is no doubt on intent, court should deny third degree assault instruction. People v. Gibson, 623 P.2d 391 (Colo. 1981).

Where court instructed jury on third degree assault relating to intentional conduct on lesser-included offense of second degree assault, but refused to instruct on third degree assault relating to criminal negligence, see People v. White, 191 Colo. 353, 553 P.2d 68 (1976).

Third degree assault not included in robbery. Third degree assault requires proof of bodily injury, an element not necessary to culpability under robbery, and therefore, the former offense is not included within the latter. People v. Flores, 39 Colo. App. 556, 575 P.2d 11 (1977).

A misdemeanor conviction under this section for third degree assault involves a crime of violence for purposes of § 4B1.2(a)(2) of the United States Sentencing Guidelines. United States v. Krejcarek, 453 F.3d 1290 (10th Cir. 2006).

Applied in People v. Lobato, 192 Colo. 357, 559 P.2d 224 (1977); People v. Sepeda, 196 Colo. 13, 581 P.2d 723 (1978); People in Interest of C.B., 196 Colo. 362, 585 P.2d 281 (1978); People v. Kreiser, 41 Colo. App. 210, 585 P.2d 301 (1978); People v. Dowdell, 197 Colo. 76, 589 P.2d 948 (1979); People v. Trout, 198 Colo. 98, 596 P.2d 762 (1979); Kreiser v. People, 199 Colo. 20, 604 P.2d 27 (1979); People v. Johnson, 644 P.2d 34 (Colo. App. 1980); Godbold v. Wilson, 518 F. Supp. 1265 (D. Colo. 1981); People v. Francis, 630 P.2d 82 (Colo. 1981); People v. Henry, 631 P.2d 1122 (Colo. 1981); People v. Martinez, 634 P.2d 26 (Colo. 1981); People v. Noble, 635 P.2d 203 (Colo. 1981); People v. Sanchez, 644 P.2d 95 (Colo. App. 1982); People v. Dement, 661 P.2d 675 (Colo. 1983); People v. Gouker, 665 P.2d 113 (Colo. 1983); People v. Reedy, 705 P.2d 1032 (Colo. App. 1985).


 

18-3-205. Vehicular assault.

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(1) (a) If a person operates or drives a motor vehicle in a reckless manner, and this conduct is the proximate cause of serious bodily injury to another, such person commits vehicular assault.

(b) (I) If a person operates or drives a motor vehicle while under the influence of alcohol or one or more drugs, or a combination of both alcohol and one or more drugs, and this conduct is the proximate cause of a serious bodily injury to another, such person commits vehicular assault. This is a strict liability crime.

(II) For the purposes of this subsection (1), one or more drugs shall mean all substances defined as a drug in section 12-22-303 (13), C.R.S., and all controlled substances defined in section 12-22-303 (7), C.R.S., and glue-sniffing, aerosol inhalation, or the inhalation of any other toxic vapor or vapors as defined in section 18-18-412.

(III) The fact that any person charged with a violation of this subsection (1) is or has been entitled to use one or more drugs under the laws of this state shall not constitute a defense against any charge of violating this subsection (1).

(IV) "Driving under the influence" means driving a vehicle when a person has consumed alcohol or one or more drugs, or a combination of alcohol and one or more drugs, which alcohol alone, or one or more drugs alone, or alcohol combined with one or more drugs affect such person to a degree that such person is substantially incapable, either mentally or physically, or both mentally and physically, of exercising clear judgment, sufficient physical control, or due care in the safe operation of a vehicle.

(c) Vehicular assault, in violation of paragraph (a) of this subsection (1), is a class 5 felony. Vehicular assault, in violation of paragraph (b) of this subsection (1), is a class 4 felony.

(2) In any prosecution for a violation of subsection (1) of this section, the amount of alcohol in the defendant's blood or breath at the time of the commission of the alleged offense, or within a reasonable time thereafter, as shown by analysis of the defendant's blood or breath, shall give rise to the following presumptions:

(a) If there was at such time 0.05 or less grams of alcohol per one hundred milliliters of blood, or if there was at such time 0.05 or less grams of alcohol per two hundred ten liters of breath, it shall be presumed that the defendant was not under the influence of alcohol.

(b) If there was at such time in excess of 0.05 but less than 0.08 grams of alcohol per one hundred milliliters of blood, or if there was at such time in excess of 0.05 but less than 0.08 grams of alcohol per two hundred ten liters of breath, such fact may be considered with other competent evidence in determining whether or not the defendant was under the influence of alcohol.

(c) If there was at such time 0.08 or more grams of alcohol per one hundred milliliters of blood, or if there was at such time 0.08 or more grams of alcohol per two hundred ten liters of breath, it shall be presumed that the defendant was under the influence of alcohol.

(3) The limitations of subsection (2) of this section shall not be construed as limiting the introduction, reception, or consideration of any other competent evidence bearing upon the question of whether or not the defendant was under the influence of alcohol.

(4) (a) If a law enforcement officer has probable cause to believe that any person was driving a motor vehicle in violation of paragraph (b) of subsection (1) of this section, such person, upon the request of the law enforcement officer, shall take, and complete, and cooperate in the completing of any test or tests of such person's blood, breath, saliva, or urine for the purpose of determining the alcoholic or drug content within his or her system. The type of test or tests shall be determined by the law enforcement officer requiring the test or tests. If such person refuses to take, or to complete, or to cooperate in the completing of any such test or tests, such test or tests may be performed at the direction of a law enforcement officer having such probable cause, without such person's authorization or consent. If any person refuses to take, or to complete, or to cooperate in the taking or completing of any test or tests required by this paragraph (a), such person shall be subject to license revocation pursuant to the provisions of section 42-2-126 (2), C.R.S. When such test or tests show that the amount of alcohol in a person's blood was in violation of the limits provided for in section 42-2-126 (2) (a) (I), (2) (a) (I.5), (2) (a) (III), or (2) (a) (IV), C.R.S., such person shall be subject to license revocation pursuant to the provisions of section 42-2-126, C.R.S.

(b) Any person who is required to submit to testing shall cooperate with the person authorized to obtain specimens of his blood, breath, saliva, or urine, including the signing of any release or consent forms required by any person, hospital, clinic, or association authorized to obtain such specimens. If such person does not cooperate with the person, hospital, clinic, or association authorized to obtain such specimens, including the signing of any release or consent forms, such noncooperation shall be considered a refusal to submit to testing.

(c) The tests shall be administered at the direction of a law enforcement officer having probable cause to believe that the person committed a violation of subparagraph (I) of paragraph (b) of subsection (1) of this section and in accordance with rules and regulations prescribed by the state board of health concerning the health of the person being tested and the accuracy of such testing. Strict compliance with such rules and regulations shall not be a prerequisite to the admissibility of test results at trial unless the court finds that the extent of noncompliance with a board of health rule has so impaired the validity and reliability of the testing method and the test results as to render the evidence inadmissible. In all other circumstances, failure to strictly comply with such rules and regulations shall only be considered in the weight to be given to the test results and not to the admissibility of such test results. It shall not be a prerequisite to the admissibility of test results at trial that the prosecution present testimony concerning the composition of any kit used to obtain blood, urine, saliva, or breath specimens. A sufficient evidentiary foundation concerning the compliance of such kits with the rules and regulations of the department of public health and environment shall be established by the introduction of a copy of the manufacturer's or supplier's certificate of compliance with such rules and regulations if such certificate specifies the contents, sterility, chemical makeup, and amounts of chemicals contained in such kit.

(d) No person except a physician, a registered nurse, a paramedic as certified in part 2 of article 3.5 of title 25, C.R.S., an emergency medical technician as defined in part 1 of article 3.5 of title 25, C.R.S., or a person whose normal duties include withdrawing blood samples under the supervision of a physician or registered nurse shall be entitled to withdraw blood for the purpose of determining the alcoholic or drug content therein. In any trial for a violation of paragraph (b) of subsection (1) of this section, testimony of a law enforcement officer that he witnessed the taking of a blood specimen by a person who he reasonably believed was authorized to withdraw blood specimens shall be sufficient evidence that such person was so authorized, and testimony from the person who obtained the blood specimens concerning such person's authorization to obtain blood specimens shall not be a prerequisite to the admissibility of test results concerning the blood specimens obtained. No civil liability shall attach to any person authorized to obtain blood, breath, saliva, or urine specimens or to any hospital, clinic, or association in or for which such specimens are obtained pursuant to this subsection (4) as a result of the act of obtaining such specimens from any person if such specimens were obtained according to the rules and regulations prescribed by the state board of health; except that such provision shall not relieve any such person from liability for negligence in the obtaining of any specimen sample.

(e) Any person who is dead or unconscious shall be tested to determine the alcohol or drug content of his blood or any drug content of his system as provided in this subsection (4). If a test cannot be administered to a person who is unconscious, hospitalized, or undergoing medical treatment because the test would endanger the person's life or health, the law enforcement agency shall be allowed to test any blood, urine, or saliva which was obtained and not utilized by a health care provider and shall have access to that portion of the analysis and results of any tests administered by such provider which shows the alcohol or drug content of the person's blood or any drug content within his system. Such test results shall not be considered privileged communications, and the provisions of section 13-90-107, C.R.S., relating to the physician-patient privilege shall not apply. Any person who is dead, in addition to the tests prescribed, shall also have his blood checked for carbon monoxide content and for the presence of drugs, as prescribed by the department of public health and environment. Such information obtained shall be made a part of the accident report.

(f) If a person refuses to take, or to complete, or to cooperate in the completing of any test or tests as provided in this subsection (4) and such person subsequently stands trial for a violation of subsection (1) (b) of this section, the refusal to take, or to complete, or to cooperate with the completing of any test or tests shall be admissible into evidence at the trial, and a person may not claim the privilege against self-incrimination with regard to the admission of his refusal to take, or to complete, or to cooperate with the completing of any test or tests.

(g) Notwithstanding any provision in section 42-2-1301.1, C.R.S., concerning requirements which relate to the manner in which tests are administered, the test or tests taken pursuant to the provisions of this section may be used for the purposes of driver's license revocation proceedings under section 42-2-126, C.R.S., and for the purposes of prosecutions for violations of section 42-4-1301 (1) or (2), C.R.S.

(5) In all actions, suits, and judicial proceedings in any court of this state concerning alcohol-related or drug-related traffic offenses, the court shall take judicial notice of methods of testing a person's alcohol or drug level and of the design and operation of devices, as certified by the department of public health and environment, for testing a person's blood, breath, saliva, or urine to determine his alcohol or drug level. This subsection (5) shall not prevent the necessity of establishing during a trial that the testing devices used were working properly and that such testing devices were properly operated. Nothing in this subsection (5) shall preclude a defendant from offering evidence concerning the accuracy of testing devices.

 

Source: L. 71: R&RE, p. 421, § 1. C.R.S. 1963: § 40-3-205. L. 75: Entire section amended, p. 625, § 2, effective June 26. L. 77: (1) R&RE, p. 961, § 11, effective July 1. L. 81: (1)(b) amended, p. 1992, § 5, effective June 19. L. 83: (4) added, p. 1648, § 18, effective July 1. L. 88: IP(2) amended, p. 1365, § 6, effective July 1. L. 89: (1)(b), (2), and (3) amended, (4) R&RE, and (5) added, pp.896, 898, §§ 3, 4, effective July 1. L. 93: (1) and (1)(b)(II) amended, pp. 1987, 1731, §§ 15, 14, effective July 1. L. 94: (4)(c), (4)(e), and (5) amended, p. 2734, § 357, effective July 1; (4)(a) and (4)(g) amended, p. 2552, § 41, effective January 1, 1995. L. 97: (4)(a) amended, p. 1471, § 19, effective July 1. L. 2002: (4)(g) amended, p. 1915, § 5, effective July 1. L. 2004: (2)(b) and (2)(c) amended, p. 781, § 4, effective July 1.

Editor's note: Amendments to subsection (1) in House Bill 93-1302 and House Bill 93-1088 were harmonized.

Cross references: (1) For penalties for driving under the influence of alcohol, see § 42-4-1301.

(2) For the legislative declaration contained in the 1994 act amending subsections (4)(c) and (4)(e) and enacting subsection (5), see section 1 of chapter 345, Session Laws of Colorado 1994.

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Annotation

Am. Jur.2d . See 7A Am. Jur.2d, Automobiles and Highway Traffic, § 346.

Law reviews. For article, "Drinking and Driving: An Update on the 1989 Legislation," see 18 Colo. Law. 1943 (1989).

Annotator's note. Since § 18-3-205 is similar to former § 40-2-11, C.R.S. 1963, relevant cases construing that provision have been included in the annotations to this section.

Constitutionality. This section is not unconstitutional on the grounds that it denies the accused the opportunity to rebut the presumption raised by his or her blood alcohol content. People v. Rostad, 669 P.2d 126 (Colo. 1983); People v. Ray, 678 P.2d 1019 (Colo. 1984); People v. Sutherland, 683 P.2d 1192 (Colo. 1984).

Legislative concern is for result of reckless driving. This statute is not concerned with drunk driving or reckless driving, as such. Rather, this statute evidences a legislative concern for the result which flows from the reckless operation of a motor vehicle by one who is under the influence of intoxicating liquor, the result being the injury of a human being. People v. Smith, 182 Colo. 228, 512 P.2d 269 (1973).

Reckless driving is not a lesser included offense of vehicular homicide or vehicular assault. People v. Clary, 950 P.2d 654 (Colo. App. 1997).

Driving under the influence is a lesser included offense of vehicular assault. If a person is guilty of vehicular assault by virtue of driving under the influence, driving under the influence is a lesser included offense prohibited by the double jeopardy clause. People v. Cruthers, 124 P.3d 887 (Colo. App. 2005).

The gravamen of both vehicular homicide, § 18-3-106, and this section is the "reckless" operation or driving of a motor vehicle, which results in the death of or serious bodily injury to another. People v. Sexton, 192 Colo. 81, 555 P.2d 1151 (1976).

Vehicular assault is distinguishable from second degree assault described in § 18-3-203 (1)(d), and therefore these sections do not violate equal protection. The statutes differ in three primary ways. Second degree assault applies to a range of unspecified conduct, while vehicular assault applies narrowly to driving or operating a motor vehicle. Second degree assault can apply to acts of omission, while vehicular assault requires acts of commission. Second degree assault applies to any deadly weapon, which may include a motor vehicle, while vehicular assault requires the defendant's reckless driving or operation of a motor vehicle to have proximately caused the serious bodily injury. People v. Stewart, 55 P.3d 107 (Colo. 2002).

Elements of offense. This statute requires proof of two elements for conviction in addition to that of driving while under the influence: First, driving in a reckless manner; and second, the infliction of bodily injury while so doing. People v. Smith, 182 Colo. 228, 512 P.2d 269 (1973).

Finding of knowing or wilful conduct is sufficient to establish recklessness. People v. Yanaga, 635 P.2d 925 (Colo. 1981).

Offense requires injury. Neither offenses of driving under the influence of alcohol, nor reckless driving, nor causing an accident while under the influence of alcohol or by reckless driving, constitute felonious acts. Only when these events caused a death or injury to another person does the statute specifically provide that an offense has been committed. Penn Mut. Life Ins. Co. v. Gibson, 160 Colo. 462, 418 P.2d 50 (1966).

Vehicular assault while driving under the influence is a strict liability crime, and jury was properly instructed on obligation to prove proximate cause beyond a reasonable doubt. People v. Hall, 722 P.2d 447 (Colo. App. 1986).

Subsections (1)(a) and (1)(b) set forth two alternative ways of committing the singular crime of vehicular assault; they do not create two separate crimes. People v. Acosta, 860 P.2d 1376 (Colo. App. 1993); People v. Lucero, 985 P.2d 87 (Colo. App. 1999).

Defendant must be operating or driving the motor vehicle. Britto v. People, 178 Colo. 216, 497 P.2d 325 (1972).

There was substantial evidence that defendant's actions caused defendant's injuries, so there was no err in failing to instruct the jury that acts of omission cannot constitute vehicular assault. People v. Smith, 121 P.3d 243 (Colo. App. 2005).

Misdemeanor offenses under § 42-4-1202 are not the same as felony offenses under this section. People v. Smith, 182 Colo. 228, 512 P.2d 269 (1973).

Driving under the influence of intoxicating liquor and driving while ability is impaired are not lesser included offenses of the felony charge of inflicting bodily injury while under the influence of intoxicating liquor by driving an automobile in a reckless manner. People v. Smith, 182 Colo. 228, 512 P.2d 269 (1973); People v. Lucero, 985 P.2d 87 (Colo. App. 1999).

Prosecution not barred under this section. The court's dismissal of a misdemeanor count under § 42-4-1202, which placed the defendant in jeopardy as to that count, did not bar prosecution on felony count under this section. People v. Smith, 182 Colo. 228, 512 P.2d 269 (1973).

Right to refuse to submit to blood alcohol test does not apply. The right of refusal to submit to a blood alcohol test under the Colorado implied consent law applied only to the misdemeanor offense of driving under the influence of intoxicating liquor and not to the felony offense of causing an injury while driving under the influence of intoxicating liquor. People v. Blandon, 194 Colo. 102, 568 P.2d 1171 (1977).

The general assembly need not extend the legislative grace of a right to refuse a blood test, a test which is constitutionally permissible, to those charged with vehicular homicide or vehicular assault. People v. Myers, 198 Colo. 295, 599 P.2d 891 (1979).

Equal protection is not violated by the failure of § 18-3-106 and this section to afford an accused the right to refuse a blood test afforded by § 42-4-1202. People v. Myers, 198 Colo. 295, 599 P.2d 891 (1979).

The general assembly's decision to permit one charged with the less grievous offense of driving under the influence to refuse a blood test while not likewise permitting one charged with felonious vehicular homicide or felonious vehicular assault to refuse the test is not arbitrary or unreasonable. People v. Myers, 198 Colo. 295, 599 P.2d 891 (1979).

Regulations promulgated pursuant to implied consent statute apply to offenses charged under it and not to felonies charged under this section. People v. Acosta, 620 P.2d 55 (Colo. App. 1980).

Failure of police to obtain test from unconscious victim pursuant to subsection (4)(e) does not entitle defendant to a dismissal of the charges under this section when the defendant cannot show that the failure was in bad faith. People v. Kearns, 988 P.2d 189 (Colo. App. 1999).

Sentence of three years plus two years probation for class 4 felony conviction under subsection (1)(b) was not disproportionate. People v. Kearns, 988 P.2d 189 (Colo. App. 1999).

Performance and consent to breathalyzer test. People v. Sanchez, 173 Colo. 188, 476 P.2d 980 (1970).

Evidence sufficient to sustain conviction. People v. Rodriguez, 645 P.2d 857 (Colo. App. 1982).

As to former element of intent, see Britto v. People, 178 Colo. 216, 497 P.2d 325 (1972).

Violation of reckless vehicular assault statute is a predicate crime of violence for purposes of the United States sentencing guidelines. Subsection (1)(a) creates a categorical crime of violence because it reaches only conduct involving the use of force as required under the sentencing guidelines. United States v. Grajeda-Ramirez, 348 F.3d 1123 (9th Cir. 2003).

Applied in People v. Beltran, 634 P.2d 1003 (Colo. App. 1981); People v. Roybal, 655 P.2d 410 (Colo. 1982).


 

18-3-206. Menacing.

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(1) A person commits the crime of menacing if, by any threat or physical action, he or she knowingly places or attempts to place another person in fear of imminent serious bodily injury. Menacing is a class 3 misdemeanor, but, it is a class 5 felony if committed:

(a) By the use of a deadly weapon or any article used or fashioned in a manner to cause a person to reasonably believe that the article is a deadly weapon; or

(b) By the person representing verbally or otherwise that he or she is armed with a deadly weapon.

 

Source: L. 71: R&RE, p. 421, § 1. C.R.S. 1963: § 40-3-206. L. 77: Entire section amended, p. 961, § 12, effective July 1. L. 2000: Entire section amended, p. 694, § 5, effective July 1.

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Annotation

Am. Jur.2d. See 6 Am. Jur.2d, Assault and Battery, § 26.

Law reviews. For article, "The Definition of "Deadly Weapon" Under the Colorado Criminal Code," see 15 Colo. Law. 1663 (1986).

Statute did not unconstitutionally violate the defendant's equal protection rights, despite the defendant's claim that the conduct proscribed by this section, a class 5 felony, was indistinguishable from the conduct proscribed in § 18-9-106 (1)(f) (disorderly conduct with a deadly weapon), a class 2 misdemeanor, in which the actus reus is less specific than the actus reus in this section. People v. Ibarra, 849 P.2d 33 (Colo. 1993).

It is only when the same conduct is proscribed in two statutes and different criminal sanctions apply, that problems arise under equal protection. People v. Ibarra, 849 P.2d 33 (Colo. 1993).

Felony menacing is a specific intent crime. People v. Lundborg, 39 Colo. App. 498, 570 P.2d 1303 (1977).

Felony menacing is not a lesser included offense of second-degree assault. The offense of second-degree assault does not establish every essential element of felony menacing and, therefore, the merger doctrine does not apply. People v. Truesdale, 804 P.2d 287 (Colo. App. 1990).

The actus reus of felony menacing is "placing another person in fear of imminent serious bodily injury by the use of a deadly weapon," an act more specific than the actus reus of disorderly conduct with a deadly weapon, which is displaying a deadly weapon in an alarming manner in a public place. Therefore, it does not violate the equal protection clause of article II, section 25, of the Colorado constitution to subject defendants to potential criminal liability under both statutes. People v. Torres, 848 P.2d 911 (Colo. 1993).

Court did not err in denying motion for acquittal when defendant charged with felony menacing and evidence showed the victims believed themselves to be in danger of imminent serious bodily harm. People v. Manzanares, 942 P.2d 1235 (Colo. App. 1996).

Failure to instruct jury on "imminent" element was harmless error where prosecutor argued fear was imminent and defense did not challenge whether fear was imminent. Evidence clearly showed fear was imminent. People v. Geisendorfer, 991 P.2d 308 (Colo. App. 1999).

The phrase "use of a deadly weapon" is broad enough to include the act of holding a weapon in the presence of another in a manner that causes the other person to fear for his safety, even if the weapon is not pointed at the other person. People v. Hines, 780 P.2d 556 (Colo. 1989); People v. District Ct., 17th Jud. Dist., 926 P.2d 567 (Colo. 1996).

Felony menacing requires use of deadly weapon. The elements of misdemeanor menacing and felony menacing are identical but for the added requirement of the use of a deadly weapon. People v. Lahr, 200 Colo. 425, 615 P.2d 707 (1980).

Under the felony provision of this section unloaded firearm is a deadly weapon. People v. McPherson, 200 Colo. 429, 619 P.2d 38 (1980).

An unloaded firearm is a deadly weapon. People v. Lahr, 200 Colo. 425, 615 P.2d 707 (1980).

Defendant "used" his or her purported HIV status in a manner that could cause the victim to fear for his or her safety where the evidence showed that the defendant stated he or she was HIV positive, pinched and scratched the victim, and attempted to bite him or her. People v. Shawn, 107 P.3d 1033 (Colo. App. 2004).

Felony menacing distinguished from first degree burglary. It is possible to commit a first degree burglary without also perpetrating felony menacing. The merger doctrine does not apply because there is no requirement in the first degree burglary statute that a victim be placed in fear of imminent serious bodily injury by a deadly weapon as there is in the felony menacing statute. People v. Sisneros, 44 Colo. App. 65, 606 P.2d 1317 (1980).

Voluntary intoxication is not a defense to felony menacing, which is a general intent crime. People v. Breland, 728 P.2d 763 (Colo. App. 1986); People v. Esparza, 757 P.2d 1164 (Colo. App. 1988).

And from aggravated robbery. The offense of aggravated robbery may be committed without also committing felony menacing. No merger occurs because the requirement in the felony menacing statute that the actor knowingly places a victim in fear of "serious bodily injury" is distinguishable from the requirement that the robber knowingly places a victim in fear of "bodily injury." People v. Sisneros, 44 Colo. App. 65, 606 P.2d 1317 (1980).

An essential element of the offense is a specific intent to cause fear. People v. Stout, 193 Colo. 466, 568 P.2d 52 (1977).

The specific intent of the defendant to cause fear is the gravamen of the offense of felony menacing. People v. McPherson, 200 Colo. 429, 619 P.2d 38 (1980).

No reversible error committed when court refused to instruct the jury that if it found the affirmative defense of self-defense applied to any one defendant it applied to them all. Court not persuaded of real possibility that jury could convict the defendant, finding that he acted reasonably toward one victim but not another. People v. Manzanares, 942 P.2d 1235 (Colo. App. 1996).

Court erroneously submitted instruction to jury which included "specific intent" element for "general intent" crime of felony menacing. People v. Crump, 769 P.2d 496 (Colo. 1989).

Menacing is a general intent crime requiring only that the defendant be aware that the defendant's conduct is practically certain to cause the result. People v. Zieg, 841 P.2d 342 (Colo. App. 1992); People v. Segura, 923 P.2d 266 (Colo. App. 1995); People v. District Ct., 17th Jud. Dist., 926 P.2d 567 (Colo. 1996); People v. Saltray, 969 P.2d 729 (Colo. App. 1998); People v. Shawn, 107 P.3d 1033 (Colo. App. 2004).

It is unnecessary for the victim actually to hear or to be cognizant of any threat from defendant; instead, if there is evidence from which the jury could reasonably find that the defendant knew his actions, if discovered, would place the victim in fear of imminent serious bodily injury by use of a deadly weapon, then the intent element of the offense may be established. People v. Saltray, 969 P.2d 729 (Colo. App. 1998).

The jury instruction which did not specify a particular victim, coupled with the comments of the prosecutor, invited the jury to convict without regard to the identity of the victim, making it impossible to determine whether the jury unanimously convicted defendant on the basis of menacing the same victim. People v. Simmons, 973 P.2d 627 (Colo. App. 1998).

Where the evidence of defendant's guilt was overwhelming and the issue of whether the defendant acted knowingly was not contested at trial, the trial court's error in instructing the jury on the meaning of "knowingly" is not plain error in defendant's conviction for menacing. Espinoza v. People, 712 P.2d 476 (Colo. 1985).

The trial court's omission of the definition of "serious bodily injury" from the jury instructions, although erroneous, did not rise to the level of plain error because the issue of the degree of bodily injury the victim feared from the defendant was not contested at trial. People v. Fichtner, 869 P.2d 539 (Colo. 1994).

Intent to inflict injury not gist of crime. Whether the defendant had the intent of ability to inflict injury is not the gist of felony menacing. People v. McPherson, 200 Colo. 429, 619 P.2d 38 (1980).

Conditional or contingent threat satisfies the "threat" element of felony menacing. People v. Hines, 780 P.2d 556 (Colo. 1989); People v. Segura, 923 P.2d 266 (Colo. App. 1995).

The term "use" is broad enough to include the act of holding a weapon in the presence of another in a manner that causes the other person to fear for his safety. People v. Hines, 780 P.2d 556 (Colo. 1989).

The term "use" necessarily includes the physical possession of a deadly weapon at the time of the crime. People v. Adams, 867 P.2d 54 (Colo. App. 1993).

The term "use" is broad enough to allow the jury to convict the defendant of felony menacing for defendant's act of returning to the victim at the location where the defendant previously sexually assaulted the victim while holding a gun to the victim's head, even though the victim did not see the gun upon the defendant's return. The jury and victim could reasonably believe the defendant still had the gun after the sexual assault and could use it to cause fear in the victim. People v. Frye, 872 P.2d 1316 (Colo. App. 1993).

Jury verdict convicting defendant of felony menacing is not inconsistent with the jury's verdict acquitting defendant of first degree sexual assault. People v. Frye, 872 P.2d 1316 (Colo. App. 1993).

Actual subjective fear on the part of the victim is not a necessary element of this crime. People v. Stout, 193 Colo. 466, 568 P.2d 52 (1977); People v. Williams, 827 P.2d 612 (Colo. App. 1992); People v. District Ct., 17th Jud. Dist., 926 P.2d 567 (Colo. 1996).

Nonetheless, what the victim saw or heard, and his reactions thereto, are relevant considerations in determining whether the defendant had the requisite intent to place him in fear. People v. Gagnon, 703 P.2d 661 (Colo. App. 1985).

Rather, it is only necessary that the defendant be aware that his conduct is practically certain to cause fear. People v. District Ct., 17th Jud. Dist., 926 P.2d 567 (Colo. 1996); United States v. Blackwell, 323 F.3d 1256 (10th Cir. 2003).

When there is one count of felony menacing it is not necessary to prove each of the named victims was placed in fear of imminent serious bodily injury. It is sufficient to prove that the defendant committed the offense against the same listed persons. People v. Manzanares, 942 P.2d 1235 (Colo. App. 1996).

The crime of menacing does not require proof of the intent to rob. People v. Marlott, 191 Colo. 304, 552 P.2d 491 (1976).

Intoxication as defense. If at the time of the incident in question, felony menacing was a specific intent crime, intoxication is available as a defense to negate the requisite specific intent. People v. Sandoval, 42 Colo. App. 503, 596 P.2d 1225 (1979).

Evidence held sufficient to bind police officer over for trial. Johns v. District Court, 192 Colo. 462, 561 P.2d 1 (1977).

Evidence sufficient to indicate that felony prosecution under this section was proper. Biddle v. District Court, 183 Colo. 281, 516 P.2d 645 (1973); People v. Stout, 193 Colo. 466, 568 P.2d 52 (1977); People v. Gonzales, 43 Colo. App. 312, 602 P.2d 6 (1978), rev'd on other grounds, 198 Colo. 450, 601 P.2d 1366 (1979).

Where evidence supports felony conviction, improper misdemeanor instruction does not affect misdemeanor conviction. Where the evidence supported a conviction for felony menacing, the fact that the trial court improperly submitted an instruction on misdemeanor menacing to the jury did not affect the defendant's conviction for the lesser included offense, misdemeanor menacing. People v. Lahr, 200 Colo. 425, 615 P.2d 707 (1980).

Constitution proscribes retrial when conviction impliedly acquits defendant. The double jeopardy clause proscribes retrial when a felony menacing conviction impliedly acquits the defendant of a second-degree assault charge. Ortiz v. District Court, 626 P.2d 642 (Colo. 1981).

Trial court abused discretion in refusing to grant a continuance to allow stabbing victim's prior felony drug convictions to become final so that defendant could cross-examine victim concerning the convictions for impeachment purposes. People v. Gagnon, 703 P.2d 661 (Colo. App. 1985).

No error where court excluded evidence of actions of victim after menacing occurred, since, in determining the issue of reasonable belief of imminent injury, it is the actions and demeanor of the believed assailant which first occurred that are relevant. People v. Beckett, 782 P.2d 812 (Colo. App. 1989), aff'd, 800 P.2d 74 (Colo. 1990).

Defendant's act of touching a knife to the officer's person was not sufficient to establish the elements of assault-during-escape. To hold, under the present criminal code, that a threat with a deadly weapon constitutes an assault with intent to commit bodily injury would eliminate any distinction between the crimes of menacing and assault with intent to commit bodily injury. People v. Wilson, 791 P.2d 1247 (Colo. App. 1990).

Viewed in the light most favorable to the prosecution, the evidence was sufficient to induce a person of ordinary prudence to entertain a reasonable belief that defendant committed the crime of felony menacing where evidence indicated that defendant, while holding the knife that mortally wounded victim, threatened to kill other person if that person did not leave his residence. People v. District Ct., 17th Jud. Dist., 926 P.2d 567 (Colo. 1996).

A violation of this section qualifies as a violent felony under the federal Armed Career Criminals Act, 18 U.S.C. § 924(e). United States v. Herron, 432 F.3d 1127 (10th Cir. 2005), cert. denied, U.S., 126 S. Ct. 1895, 164 L. Ed. 2d 579 (2006).

Applied in Miller v. District Court, 193l Colo. 404, 566 P.2d 1063 (1977); Jones v. District Court, 196 Colo. 1, 584 P.2d 81 (1978); People v. Chavez, 629 P.2d 1040 (Colo. 1981); People v. Lichtenstein, 630 P.2d 70 (Colo. 1981); People v. Francis, 630 P.2d 82 (Colo. 1981); People v. Trujillo, 631 P.2d 146 (Colo. 1981); People v. Jones, 631 P.2d 1132 (Colo. 1981); People v. Martinez, 634 P.2d 26 (Colo. 1981); People v. Stoppel, 637 P.2d 384 (Colo. 1981); People v. Mack, 638 P.2d 257 (Colo. 1981); People v. Sanchez, 649 P.2d 1049 (Colo. 1982); People v. Brassfield, 652 P.2d 588 (Colo. 1982); People v. Ferguson, 653 P.2d 725 (Colo. 1982); Watkins v. People, 655 P.2d 834 (Colo. 1982); People v. Dillon, 655 P.2d 841 (Colo. 1982); People v. Shearer, 650 P.2d 1293 (Colo. App. 1982); People v. Bridges, 662 P.2d 161 (Colo. 1983); People v. Jones, 140 P.3d 325 (Colo. App. 2006).


 

18-3-207. Criminal extortion - aggravated extortion.

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(1) A person commits criminal extortion if:

(a) The person, without legal authority and with the intent to induce another person against that other person's will to perform an act or to refrain from performing a lawful act, makes a substantial threat to confine or restrain, cause economic hardship or bodily injury to, or damage the property or reputation of, the threatened person or another person; and

(b) The person threatens to cause the results described in paragraph (a) of this subsection (1) by:

(I) Performing or causing an unlawful act to be performed; or

(II) Invoking action by a third party, including but not limited to, the state or any of its political subdivisions, whose interests are not substantially related to the interests pursued by the person making the threat.

(1.5) A person commits criminal extortion if the person, with the intent to induce another person against that other person's will to give the person money or another item of value, threatens to report to law enforcement officials the immigration status of the threatened person or another person.

(2) A person commits aggravated criminal extortion if, in addition to the acts described in subsection (1) of this section, the person threatens to cause the results described in paragraph (a) of subsection (1) of this section by means of chemical, biological, or harmful radioactive agents, weapons, or poison.

(3) For the purposes of this section, "substantial threat" means a threat that is reasonably likely to induce a belief that the threat will be carried out and is one that threatens that significant confinement, restraint, injury, or damage will occur.

(4) Criminal extortion, as described in subsections (1) and (1.5) of this section, is a class 4 felony. Aggravated criminal extortion, as described in subsection (2) of this section, is a class 3 felony.

 

Source: L. 71: R&RE, p. 421, § 1. C.R.S. 1963: § 40-3-207. L. 75: Entire section amended, p. 618, § 8, effective July 21. L. 81: Entire section amended, p. 981, § 4, effective May 13; entire section amended, p. 974, § 8, effective July 1. L. 82: (2) amended, p. 623, § 17, effective April 2. L. 94: Entire section R&RE, p. 1619, § 1, effective May 31. L. 2006, 1st Ex. Sess.: (1.5) added and (4) amended, p. 11, § 1, effective July 31.

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Annotation

Am. Jur.2d. See 6 Am. Jur.2d, Assault and Battery, § 26.

Law reviews. For article, "Criminal Law," which discusses a Tenth Circuit decision dealing with extortion, see 62 Den. U. L. Rev. 153 (1985). For article, "2006 Immigration Legislation in Colorado," see 35 Colo. Law. 79 (October 2006).

This section is applicable to efforts to collect a legally enforceable debt. People v. Rosenberg, 194 Colo. 423, 572 P.2d 1211 (1978).

This section and § 18-9-111, which classifies harassment as a misdemeanor, address separate and distinct crimes and the classification of such offenses have a rational basis in fact and are reasonably related to legitimate government interests. People v. Czemerynski, 786 P.2d 1100 (Colo. 1990).

Statute is facially overbroad because it sweeps within its reach both protected and unprotected speech. Whimbush v. People, 869 P.2d 1245 (Colo. 1994).

Statute is facially overbroad because it also covers constitutionally protected threats of collective action in support of group demands. Whimbush v. People, 869 P.2d 1245 (Colo. 1994).

A specific intent requirement does not eliminate overbreadth concerns when the effect associated with the intent provision, here, to induce another to act against his or her will, encompasses a substantial amount of protected activity. Whimbush v. People, 869 P.2d 1245 (Colo. 1994).

The trial court must vacate defendant's conviction and sentence for criminal extortion where the statute requires extensive revision to comply with constitutional requirements and rewriting the statute is more appropriately left to the general assembly rather than to the court. Whimbush v. People, 869 P.2d 1245 (Colo. 1994).

This section gives sufficient notice of the proscribed conduct and is not unconstitutionally vague. A person of reasonable intelligence could conclude that phone calls made with the intent to threaten the victim is prohibited. People v. Czemerynski, 786 P.2d 1100 (Colo. 1990).

Applied in People v. Hearty, 644 P.2d 302 (Colo. 1982).


 

18-3-208. Reckless endangerment.

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A person who recklessly engages in conduct which creates a substantial risk of serious bodily injury to another person commits reckless endangerment, which is a class 3 misdemeanor.

 

Source: L. 71: R&RE, p. 421, § 1. C.R.S. 1963: § 40-3-208.

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Annotation

Am. Jur.2d . See 6 Am. Jur.2d, Assault and Battery, § 8.

Law reviews. For article, "Mens Rea and the Colorado Criminal Code," see 52 U. Colo. L. Rev. 167 (1981). For article, "The Legal Risks of AIDS: Moving Beyond Discrimination," see 18 Colo. Law. 606 (1989).

Offense not lesser included offense of third degree assault. The establishment of every element of third degree assault would not necessarily include proving conduct which creates a substantial risk of serious bodily injury, an element of reckless endangerment. Third degree assault requires proof of bodily injury but not proof of a substantial risk of serious bodily injury. Therefore reckless endangerment is not a lesser included offense of third degree assault. People v. Berner, 42 Colo. App. 520, 600 P.2d 112 (1979).

Trial court did not err by refusing to instruct the jury on the lesser nonincluded offense of reckless endangerment, because there was no rational basis upon which the jury could have convicted defendant of that offense and acquitted him of child abuse resulting in death. People v. Cauley, 32 P.3d 602 (Colo. App. 2001).

There is no right to a jury instruction on a lesser included offense if the element that distinguishes the greater from the lesser is uncontested. Where it is undisputed that death occurred as a result of defendant's conduct, there is no right to an instruction on reckless endangerment in a reckless manslaughter case. People v. Hall, 59 P.3d 298 (Colo. App. 2002).

Applied in People v. Sepeda, 196 Colo. 13, 581 P.2d 723 (1978); Perea v. District Court, 199 Colo. 27, 604 P.2d 25 (1979); People v. McPherson, 200 Colo. 429, 619 P.2d 38 (1980).


 

18-3-209. Assault on the elderly or persons with disabilities - legislative declaration. (Repealed)

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Source: L. 84: Entire section added, p. 542, § 2, effective April 12. L. 86: (2) amended, p. 777, § 4, effective July 1. L. 93: Entire section amended, p. 1634, § 18, effective July 1. L. 95: Entire section repealed, p. 1251, § 8, effective July 1.

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