18-3-204. Assault in the third degree.
Statute text
(1) A person commits the crime of assault in the third degree if:
(a) The person knowingly or recklessly causes bodily injury to another person or with criminal negligence the person causes bodily injury to another person by means of a deadly weapon; or
(b) The person, with intent to harass, annoy, threaten, or alarm another person whom the actor knows or reasonably should know to be a peace officer, a firefighter, an emergency medical care provider, or an emergency medical service provider, causes the other person to come into contact with blood, seminal fluid, urine, feces, saliva, mucus, vomit, or toxic, caustic, or hazardous material by any means, including throwing, tossing, or expelling the fluid or material.
(2) Repealed.
(3) Assault in the third degree is a class 1 misdemeanor.
(4) Repealed.
History
Source: L. 71: R&RE, p. 421, 1. C.R.S. 1963: 40-3-204. L. 77: Entire section amended, p. 961, 10, effective July 1. L. 2004: Entire section amended, p. 635, 4, effective August 4. L. 2009: Entire section amended, (HB 09-1120), ch. 305, p. 1649, 1, effective July 1. L. 2011: (1)(b) amended and (4) added, (HB 11-1105), ch. 250, p. 1088, 2, effective August 10. L. 2012: (1)(b) amended, (HB 12-1059), ch. 271, p. 1435, 13, effective July 1. L. 2015: (2) R&RE and (4) repealed, (SB 15-126), ch. 109, p. 317, 2, effective July 1; (1)(b) amended and (4) repealed, (SB 15-067), ch. 337, p. 1367, 3, effective September 1. L. 2016: (2) repealed, (HB 16-1393), ch. 304, p. 1226, 5, effective July 1. L. 2022: (3) amended, (HB 22-1229), ch. 68, p. 344, 20, effective March 1.
Annotations
Editor's note: Section 47 of chapter 68 (HB 22-1229), Session Laws of Colorado 2022, provides that the act amending subsection (3) is effective March 1, 2022, but the governor did not approve the act until April 7, 2022.
Annotations
ANNOTATION
Annotations
Annotator's note. Since 18-3-204 is similar to former 40-2-35, C.R.S. 1963, relevant cases construing that provision have been included in the annotations to this section.
Essential elements of assault are an unlawful attempt to commit a violent injury and the present ability to commit a violent injury, and these elements must be shown to have existed at the time in order to sustain a charge of assault. People v. Cardwell, 181 Colo. 421, 510 P.2d 317 (1973).
Assault is an unlawful attempt coupled with a present ability to commit a violent injury on the person of another. Sims v. People, 177 Colo. 229, 493 P.2d 365 (1972).
Conduct which creates substantial risk of serious bodily injury not element of offense. The establishment of every element of third degree assault would not necessarily include proving conduct which creates a substantial risk of serious bodily injury, an element of reckless endangerment. Third degree assault requires proof of bodily injury but not proof of a substantial risk of serious bodily injury. Therefore reckless endangerment is not a lesser included offense of third degree assault. People v. Berner, 42 Colo. App. 520, 600 P.2d 112 (1979).
Separate blows in single criminal transaction are single offense. Where two blows were delivered to the same person within a short period of time as part of a continuous harangue to extract information, these two blows were not separate transactions but were part of a single criminal transaction arising from a single impulse. Therefore it was error to charge and convict defendant twice for the same transaction. People v. Berner, 42 Colo. App. 520, 600 P.2d 112 (1979).
Offense of assault and battery is a matter of mixed state and local concern. City of Aurora v. Martin, 181 Colo. 72, 507 P.2d 868 (1973).
It is no defense to show that the specific intent was directed at someone else other than the victim. People v. Tafoya, 179 Colo. 438, 501 P.2d 118 (1972).
Mental impairment evidence admissible to negate mens rea. Opinion evidence of a mental impairment due to a mental disease or defect may be admitted to negate the mens rea for a nonspecific intent crime such as assault in the third degree. Hendershott v. People, 653 P.2d 385 (Colo. 1982), cert. denied, 459 U.S. 1225, 103 S. Ct. 1232, 75 L. Ed. 2d 466 (1983).
Evidence sufficient to show specific intent. People v. Tafoya, 179 Colo. 438, 501 P.2d 118 (1972).
Bodily injury need not be of a crippling or otherwise incapacitating nature to be within the statutory prohibition. People v. Lobato, 187 Colo. 285, 530 P.2d 493 (1975).
To be a deadly weapon, an object must be used in connection with assaultive conduct directed toward an intended opponent or adversary. People v. Esparza-Treto, 282 P.3d 471 (Colo. App. 2011).
BB gun can be a deadly weapon. Testimony that if a person hit with a BB in a vulnerable area of the body, such as the eyes, the BB could cause serious bodily injury was sufficient to prove that the BB gun was a deadly weapon. People in Interest of J.R., 867 P.2d 125 (Colo. App. 1993).
The issue in evaluating whether a device is a deadly weapon is whether, in the manner it was used, the device could have caused death or serious bodily injury. The fact that in this particular case death or serious bodily injury did not occur is irrelevant. People in Interest of J.R., 867 P.2d 125 (Colo. App. 1993).
Third degree assault is a lesser included offense of second degree assault. People v. Thompson, 187 Colo. 252, 529 P.2d 1314 (1975); People v. Annan, 665 P.2d 629 (Colo. App. 1983); People v. Brown, 677 P.2d 406 (Colo. App. 1983); People v. Smith, 682 P.2d 493 (Colo. App. 1983); People v. Howard, 89 P.3d 441 (Colo. App. 2003).
The third degree assault conviction merges into the conviction for second degree assault. People v. Howard, 89 P.3d 441 (Colo. App. 2003).
And only difference between second and third degree assault is degree of injury. People v. Thompson, 187 Colo. 252, 529 P.2d 1314 (1975); People v. Brown, 677 P.2d 406 (Colo. App. 1983).
Defendant's convictions for two separate charges of second degree assault and one charge for third degree assault were not mutually exclusive. Convictions are mutually exclusive only when the existence of an element of one of the crimes negates the existence of an element of the other crime. Here, the three charges each required a different culpable mental state - intentionally, recklessly, and with criminal negligence. Since the jury found the defendant guilty of the charge requiring the intentional mental state, the prosecution then necessarily proved the lower mental states of recklessly and with criminal negligence. Even if there is a logical inconsistency between any of the culpable mental states, no legal inconsistency exists, and guilty verdicts that are legally consistent are not mutually exclusive. People v. Rigsby, 2020 CO 74, 471 P.3d 1068.
Defendant's convictions for second degree assault and third degree assault were multiplicitious because third degree assault is a lesser included offense of second degree assault and the offenses stemmed from the same conduct. The appropriate remedy is to merge all the convictions into a single conviction for second degree assault. People v. Rigsby, 2020 CO 74, 471 P.3d 1068.
Third degree assault is distinguishable from second degree assault on a peace officer, as described in 18-3-203, and resisting arrest, as described in 18-8-103, and therefore these sections do not violate equal protection. This section and 18-8-103 require that the defendant act knowingly, whereas 18-3-203 requires that the defendant act intentionally. Further, 18-3-203 requires proof that the defendant intended to prevent a police officer from performing a lawful duty, which is not required for a conviction under this section. People v. Whatley, 10 P.3d 668 (Colo. App. 2000).
Under the rule of lenity, defendant's felony convictions for bodily injury against an at-risk adult, under 18-6.5-103 (3)(c), and third degree assault against an at-risk person must nevertheless merge even if bodily injury against an at-risk adult is not a lesser included offense of third degree assault under 18-1-408 (5)(a). Thomas v. People, 2021 CO 84, 500 P.3d 1095.
Proper to submit different degrees of assault to jury. Where the trial judge submitted to the jury not only the offense of assault with a deadly weapon, but also simple assault as a lesser included offense, this was not error. Plainly, an instruction on general intent was necessary for simple assault, and it was also necessary for the court to instruct on specific intent for the charge of assault with a deadly weapon. Arellano v. People, 174 Colo. 456, 484 P.2d 801 (1971).
Because two counts of second degree assault were premised on identical evidence, once the trial court concluded that the evidence was sufficient to submit an instruction regarding third degree assault as a lesser included offense to count one, it was obligated to make the same conclusion with respect to the defendant's request for a lesser nonincluded instruction as to count two. People v. Castro, 952 P.2d 762 (Colo. App. 1998).
Defendant's prior conviction of assault did not bar his subsequent conviction of sexual assault, as offenses had distinct elements that were not subsumed by each other. People v. Williams, 736 P.2d 1229 (Colo. App. 1986).
When there is no doubt on intent, court should deny third degree assault instruction. People v. Gibson, 623 P.2d 391 (Colo. 1981).
When court instructed jury on third degree assault relating to intentional conduct on lesser-included offense of second degree assault, but refused to instruct on third degree assault relating to criminal negligence, see People v. White, 191 Colo. 353, 553 P.2d 68 (1976).
Jury instruction on third degree assault as a lesser included offense of second degree assault not required because jury could not have acquitted defendant of second degree assault but convicted him of third degree assault. Highly relevant to the determination of whether the knife defendant used was a deadly weapon was uncontroverted testimony that the knife was four to five inches long. Even if the knife blade was dull, because of its size, the jury could have reasonably concluded that it was capable of producing serious bodily injury. And because a reasonable jury could not have concluded that the knife was anything other than a deadly weapon, it could not have rationally acquitted defendant of second degree assault and convicted him of third degree assault. People v. Buell, 2017 COA 148, 442 P.3d 961, aff'd on other grounds, 2019 CO 27, 439 P.3d 857.
Third degree assault not included in robbery. Third degree assault requires proof of bodily injury, an element not necessary to culpability under robbery, and therefore, the former offense is not included within the latter. People v. Flores, 39 Colo. App. 556, 575 P.2d 11 (1977).
A misdemeanor conviction under this section for third degree assault involves a crime of violence for purposes of 4B1.2(a)(2) of the United States sentencing guidelines. United States v. Krejcarek, 453 F.3d 1290 (10th Cir. 2006).
Evidence insufficient to support conviction for second degree assault. There was no evidence that defendant used his car as a deadly weapon, specifically there was no evidence that defendant used his vehicle with assaultive conduct specifically directed toward the other driver. The evidence, in fact, was to the contrary that defendant attempted to avoid the other driver. People v. Esparza-Treto, 282 P.3d 471 (Colo. App. 2011).
Applied in People v. Lobato, 192 Colo. 357, 559 P.2d 224 (1977); People v. Sepeda, 196 Colo. 13, 581 P.2d 723 (1978); People in Interest of C.B., 196 Colo. 362, 585 P.2d 281 (1978); People v. Kreiser, 41 Colo. App. 210, 585 P.2d 301 (1978); People v. Dowdell, 197 Colo. 76, 589 P.2d 948 (1979); People v. Trout, 198 Colo. 98, 596 P.2d 762 (1979); Kreiser v. People, 199 Colo. 20, 604 P.2d 27 (1979); People v. Johnson, 644 P.2d 34 (Colo. App. 1980); Godbold v. Wilson, 518 F. Supp. 1265 (D. Colo. 1981); People v. Francis, 630 P.2d 82 (Colo. 1981); People v. Henry, 631 P.2d 1122 (Colo. 1981); People v. Martinez, 634 P.2d 26 (Colo. 1981); People v. Noble, 635 P.2d 203 (Colo. 1981); People v. Sanchez, 644 P.2d 95 (Colo. App. 1982); People v. Dement, 661 P.2d 675 (Colo. 1983); People v. Gouker, 665 P.2d 113 (Colo. 1983); People v. Reedy, 705 P.2d 1032 (Colo. App. 1985).