People v. Berner, 78-728
| Decision Date | 14 June 1979 |
| Docket Number | No. 78-728,78-728 |
| Citation | 42 Colo.App. 520,600 P.2d 112 |
| Parties | The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Robert BERNER, Defendant-Appellant. . II |
| Court | Colorado Court of Appeals |
J. D. MacFarlane, Atty. Gen., David W. Robbins, Deputy Atty. Gen., Edward G. Donovan, Sp. Asst. Atty. Gen., David Schwartz, Asst. Atty. Gen., Denver, for plaintiff-appellee.
J. Gregory Walta, Colorado State Public Defender, Denver, Daniel M. Winograd, Sp. Deputy State Public Defender, Colorado Springs, for defendant-appellant.
Defendant appeals his convictions of reckless endangerment, first-degree criminal trespass, second-degree criminal tampering, and two counts of third-degree assault. We affirm in part and reverse in part.
The thrust of defendant's main argument is that his convictions of reckless endangerment and two counts of third-degree assault constitute multiple convictions for the same offense in violation of the Colorado and United States Constitutions. First he asserts that his conviction of reckless endangerment was improper because reckless endangerment is a lesser included offense of third-degree assault. We disagree.
Section 18-3-204, C.R.S.1973, defines third-degree assault as follows:
And § 18-3-208, C.R.S.1973, defines reckless endangerment as follows:
"A person who recklessly engages in conduct which creates a substantial risk of serious bodily injury to another person commits reckless endangerment, which is a class three misdemeanor."
Under the statutory test enunciated in People v. Rivera, 186 Colo. 24, 525 P.2d 431 (1974), a lesser offense is included in a greater offense if establishing the elements of the greater offense necessarily establishes every element of the lesser offense. Here, 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. Rivera, supra.
Next defendant contends that his two convictions of third-degree assault must be viewed as arising out of a single criminal episode or transaction. We agree with this part of defendant's argument.
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State v. Rummer
...the same battery are not separate crimes. See, e.g., Weatherly v. State, 733 P.2d 1331 (Okla.Cr.App.1987). Cf. People v. Berner, 42 Colo.App. 520, 600 P.2d 112 (1979) (where the batteries are separated in time, two crimes are deemed to have It is clear from the foregoing cases that most jur......
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Woellhaf v. People
...this case is consistent with that employed to discern the unit of prosecution of other crimes. For example, in People v. Berner, 42 Colo.App. 520, 521-22, 600 P.2d 112, 113 (1979), the court of appeals held that two separate blows delivered to the same victim within a short period of time w......
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People v. Gillis
...because the court imposed identical and concurrent sentences for each of Gillis's convictions. See People v. Berner , 42 Colo. App. 520, 522, 600 P.2d 112, 114 (1979) ; see also People v. Fuentes , 258 P.3d 320, 326 (Colo. App. 2011) ("[A] court should enter as many convictions and impose a......
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People v. Tallwhiteman
...establishes an element of a crime, that element is also established if the defendant acts intentionally); People v. Berner, 42 Colo.App. 520, 600 P.2d 112 (1979)(reckless endangerment not a lesser included offense of third degree assault, because third degree assault only requires proof of ......
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ARTICLE 3
...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 w......
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ARTICLE 3 OFFENSES AGAINST THE PERSON
...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 w......