People v. Brown, 82CA1169
| Decision Date | 22 September 1983 |
| Docket Number | No. 82CA1169,82CA1169 |
| Citation | 677 P.2d 406 |
| Parties | The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Glenn A. BROWN, Defendant-Appellant. . II |
| Court | Colorado Court of Appeals |
Duane Woodard, Atty. Gen., Charles B. Howe, Deputy Atty. Gen., Joel W. Cantrick, Sol. Gen., Maureen Phelan, Asst. Atty. Gen., Denver, for plaintiff-appellee.
Marlin W. Burke, Wheat Ridge, for defendant-appellant.
The defendant, Glenn Allan Brown, was convicted of second degree assault, a class four felony. He appeals and we affirm.
On the morning of December 7, 1981, Brown, in an admittedly agitated state, drove from his home in Greeley to Denver. He became lost and wound up on a residential street. Driving at high speed, he went up and down the street for about 15 minutes, intermittently slamming on the brakes, dropping his hands from the steering wheel, and allowing the car to spin and slide. A mailbox was knocked down and he drove across some lawns.
Darrold Hudley, an off-duty Denver police officer, who lived on the street, observed this erratic driving from his home. Hudley called the police department. When there was no immediate response, Hudley, dressed in civilian clothes, tucked a handgun in his pants, got into his unmarked pickup truck, and pursued Brown's car.
Eventually, Brown's car stalled almost directly in front of Hudley's home. Hudley stopped behind the car and both men left their vehicles. Hudley drew his gun and told Brown: Brown whirled and faced Hudley. He later testified that he saw an object in Hudley's hand which he thought was a blackjack or club. Two witnesses standing across the street later testified they could see Hudley had a gun in his hand.
Brown took off his ski vest, threw it at Hudley, advanced toward him, grabbed Hudley's gun hand, and "immobilized" it. The two struggled and the gun discharged. The bullet struck Hudley's left ring finger. After a momentary pause, the scuffle resumed and the gun discharged again, the bullet striking Brown in the right chest region and lodging in his right arm.
Brown's first contention on appeal is that the court erred in not requiring the People to prove that he had knowledge of the existence of the specific deadly weapon held by Hudley. There was no error.
Brown was convicted of second degree assault in violation of § 18-3-203(1)(d), C.R.S.1973 (1978 Repl.Vol. 8), which provides:
"(1) A person commits the crime of assault in the second degree if:
....
(d) He recklessly causes serious bodily injury to another person by means of a deadly weapon."
"Recklessly" is defined at § 18-1-501(8), C.R.S.1973 (1978 Repl.Vol. 8), as follows:
"A person acts recklessly when he consciously disregards a substantial and unjustifiable risk that a result will occur or that a circumstance exists."
Brown concedes he realized Hudley had a weapon. He claims, however, that he thought it was a blackjack or club and not a gun. Hence, the thrust of Brown's argument is that § 18-3-203(1)(d) requires that it must be established that he knew Hudley had a gun and was aware that Hudley could be shot in a physical confrontation in order to be found to have acted "recklessly." In short, he claims he could not have consciously disregarded a risk if he did not know the risk existed.
Section 18-3-203(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. There can be little question that Brown consciously disregarded a substantial and unjustifiable risk that some injury would occur if he engaged in physical combat with Hudley.
At the time of the incident here, "deadly weapon" was defined in § 18-1-901(3)(e), C.R.S.1973 (1978 Repl.Vol. 8) as:
"[A]ny firearm, knife, bludgeon or other weapon, device, instrument, material or substance, whether animate or inanimate, which in the manner it is used or intended to be used is capable of producing death or serious bodily injury."
Hence, Brown admits he realized Hudley was carrying a "deadly weapon" (blackjack or club), and thus, Brown's contention that he was not aware that a scuffle over such weapon might result in "serious bodily injury" to Hudley must fail.
Furthermore, there is evidence from which it could be inferred that Brown was aware Hudley had a gun in his hand prior to the shooting. Two eyewitnesses testified they saw the weapon in Hudley's hand prior to the scuffle and that it was a gun. One of the eyewitnesses asked Brown immediately after the shooting why he had attacked somebody with a gun and he replied, A police officer testified that, in the ambulance on the way to the hospital, Brown told him:
(emphasis added)
Brown's conduct thus satisfied the mental state of "recklessly" as required by § 18-1-501(8).
Brown next argues the gun was in the exclusive control of Hudley and that Hudley accidentally shot himself; thus he could not have recklessly "caused" Hudley's injury. Brown contends his proffered jury instruction on this point was erroneously refused. We disagree.
For a defendant to be found the legal cause of a result, it need be shown only that the result was the natural and probable...
To continue reading
Request your trial
-
People v. Suazo
...a harsher penalty for the former). "Bodily injury" is a less serious degree of injury than "serious bodily injury." People v. Brown, 677 P.2d 406 (Colo.App.1983); see also People v. Thompson, 187 Colo. 252, 529 P.2d 1314 (1975). And, the gravity of injury sustained, or even intended, can be......
-
People v. Baker
...injury" is a question of fact for the jury. See People v. Watkins, 196 Colo. 377, 380, 586 P.2d 43, 45-46 (1978); People v. Brown, 677 P.2d 406, 409 (Colo. App.1983). Here, the prosecution presented evidence that the victim was choked both manually and with a rope, lost consciousness at lea......
-
State v. Kupau
...States v. Vincent, 648 F.2d 1046, 1050 (5th Cir.1981); United States v. Carey, 475 F.2d 1019, 1022 (9th Cir.1973); People v. Brown, 677 P.2d 406, 409 (Colo.App.1983). Some of these courts, recognizing that defendants are often willing to waive an appropriate LIO instruction on the gamble th......
-
People v. Duncan
...a permanent loss or impairment of a bodily function. However, these cases merely confirm that a protracted loss can be permanent. Brown, 677 P.2d at 409; Thompson, 748 at 794. It does not follow that the loss must be permanent. B. Application ¶ 18 Having determined that "protracted" means "......
-
ARTICLE 3 OFFENSES AGAINST THE PERSON
...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 offen......
-
ARTICLE 3
...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 offen......
-
Colorado's Implementation of the Federal Adoption and Safe Families Act
...9. CRS § 18-1-901(V)(p). 10. People v. Thompson, 748 P.2d 793 (Colo. App. 1988); People v. Rodriguez, 888 P.2d 278 (Colo.App. 1984). 11. 677 P.2d 406 (Colo.App. 12. CRS § 19-3-604(2)(k). The grounds for unfitness also have been expanded to include: (1) murder, voluntary manslaughter, or cir......