Assaults — C.R.S. 18-3
Assaults — C.R.S. 18-3| Home | Abstract | Contents | Site Map | Tables | Index | Bibliography |
| Comments? | Get Newsletter | Help the EJF |
| Chapter 16 — Colorado Laws |
| Back — Home detention programs |
18-3-202. Assault in the first degree.
18-3-203. Assault in the second degree.
18-3-204. Assault in the third degree.
18-3-207. Criminal extortion - aggravated extortion.
18-3-208. Reckless endangerment.
18-3-209. Assault on the elderly or persons with disabilities - legislative declaration. (Repealed)
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.
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.
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).
(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
(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.
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.
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).
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).
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).
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).
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).
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)).
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).
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).
(1) A person commits the crime of assault in the second degree if:
(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).
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.
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).
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).
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).
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).
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).