People v. Hart, No. 82SA72

• Docket Nº: No. 82SA72
• Citation: 658 P.2d 857
• Case Date: February 07, 1983
• Court: Supreme Court of Colorado

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658 P.2d 857 The PEOPLE of the State of Colorado, Plaintiff-Appellee,
v.
Paul HART, Defendant-Appellant. No. 82SA72. Supreme Court of Colorado,
En Banc. Feb. 7, 1983.
Rehearing Denied Feb. 28, 1983.

J.D. MacFarlane, Atty. Gen., Richard F. Hennessey, Deputy Atty. Gen., Mary J. Mullarkey, Sol. Gen., Jeffrey Weinman, Asst. Atty. Gen., Denver, for plaintiff-appellee.

J. Gregory Walta, Colo. State Public Defender, Deborah S. Waldbaum, Barbara Blackman, Deputy State Public Defenders, Denver, for defendant-appellant.

DUBOFSKY, Justice.

The defendant, Paul Hart, appeals his conviction in the Larimer County district court for assault on a police officer, contending that the lack of a culpable mental state in section 18-3-203(1)(f), C.R.S.1973 (1978 Repl.Vol. 8) (1982 Supp.) ¹ and the court's failure to instruct the jury on a culpable mental state deprived him of due

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process. ² Because the requisite mental state may be implied from the statute and because the instructions which were given meet the test in People v. Mattas, 645 P.2d 254 (Colo.1982), we affirm the defendant's conviction.

The defendant was charged with two counts of second-degree assault on a police officer under section 18-3-203(1)(f) and section 18-3-203(1)(c), C.R.S.1973 (1978 Repl.Vol. 8) ³ for events arising out of a traffic stop in a residential area of Fort Collins on May 20, 1979. The police had to awaken Hart, a passenger in the car, in order to get him to produce his identification. Once aroused, Hart, who had been drinking heavily, was uncooperative, loud, and verbally abusive. The police placed him under protective custody arrest and took him to a holding cell. Hart became increasingly violent, biting one officer in the arm and kicking another in the shin. At trial, the defendant testified that he was very angry at being taken into custody and that both the kick and the bite were aimed at the officers in response to the arrest.

The district court gave the jury separate instructions detailing the elements of each of the two counts with which the defendant was charged. The jury was instructed that the elements of second-degree assault relevant to the charge under section 18-3-203(1)(f) were:

(1) While lawfully confined

(2) Violently applying physical force against a peace officer engaged in the performance of his duties, and

(3) Knowing or reasonably should know the victim is a peace officer engaged in the performance of his duties.

The court also separately advised the jury that a "culpable mental state is just as much an element of the crime as the act." ⁴ This instruction defined both "knowingly" and "specific intent," and linked the definition of specific intent to the charge under section 18-3-203(1)(c). The jury convicted the defendant on both counts, and the court sentenced him to concurrent terms of three to five years.

The defendant did not object to the lack of a specific culpable mental state in the statute or to the jury instructions at trial, nor did he raise either issue in his motion for a new trial. Thus, the flaws, if any,

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must amount to plain error in order to be raised for the first time on appeal. Crim.P. 52(b).

I.

The defendant first contends that his right to due process was violated by the lack of a designated culpable mental state in section 18-3-203(1)(f). Of the various sub-sections of section 18-3-203(1), only sub-section (f) does not contain an explicit statement of the culpable mental state which is required for a conviction. We have held that because a crime ordinarily requires the conjunction of an act and a culpable mental state, legislative silence on the element of intent in a criminal statute is not to be construed as an indication that no culpable mental state is required. People v. Bridges, 620 P.2d 1 (Colo.1980) (Bridges II ). Rather, the requisite mental state may be implied from the statute. Bridges II, supra; People v. Bridges, 199 Colo. 520, 612 P.2d 1110 (1980) (Bridges I ); People v. Washburn, 197 Colo. 419, 593 P.2d 962 (1979). Section 18-1-503(2), C.R.S.1973 (1978 Repl.Vol....