People v. Mason, 79CA1030

• Decision Date: 02 April 1981
• Docket Number: No. 79CA1030,79CA1030
• Citation: 632 P.2d 616
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Charles Eugene MASON, Defendant-Appellant. . I
• Court: Colorado Court of Appeals

Page 616

632 P.2d 616

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Charles Eugene MASON, Defendant-Appellant.

No. 79CA1030.

Colorado Court of Appeals, Div. I.

April 2, 1981.

Rehearing Denied April 30, 1981.

Certiorari Denied Aug. 24, 1981.

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

Maley, Perry & Schiff, P. C., William O. Perry, Jr., Denver, for defendant-appellant.

COYTE, Judge.

Defendant, Charles Eugene Mason, appeals the judgment of the trial court upon his jury conviction of second degree assault on a peace officer and resisting arrest. We affirm.

Here, there was a summons and complaint written out by a duly authorized animal control officer for the City, identifying three charges against defendant. The summons was tendered to defendant, who refused to sign on the summons that he promised to appear before the municipal court at a specified time and place. Defendant's objections to the summons were met by attempts to change the summons to meet his objections. He was advised by a duly authorized uniformed police officer several times that if he failed to sign he would be placed under arrest. Defendant stated that he would not sign. He was then told that he was under arrest. When two officers attempted to place defendant's arms behind his back to handcuff him, defendant broke free, struck one of the officers, and an altercation began.

Defendant contends that one of the arresting officers testified that he was arresting defendant for failure to sign the summons and complaint. From this testimony, he concludes that since there was no evidence that this failure was an offense, the officers were not acting under color of authority or performing a legal duty, see § 18-8-103, C.R.S.1973 (1978 Repl. Vol. 8), and thus, the People failed to prove every element of the offenses charged. We disagree.

Section 18-8-103, C.R.S.1973 (1978 Repl. Vol. 8), provides that:

"(1) A person commits resisting arrest if he knowingly prevents or attempts to prevent a peace officer, acting under color of his official authority, from effecting an arrest of the actor or another, by:

(a) Using or threatening to use physical force or violence against the peace officer or another; or

(b) Using any other means which creates a substantial risk of causing physical injury to the peace officer or another.

(2) It is no defense to a prosecution under this section that the peace officer was attempting to make an arrest which in fact was unlawful, if he was acting under color of his official authority, and in attempting to make the arrest he was not resorting to unreasonable or excessive force giving rise to the right of self-defense. A peace officer acts 'under color of his official authority' when, in the regular course of assigned duties, he is called upon to make, and does make, a judgment in good faith based upon surrounding facts and circumstances that an arrest should be made by him.

(3) The term 'peace officer' as used in this section and section 18-8-104 means a peace officer in uniform or, if out of uniform, one who has identified himself by exhibiting his credentials as such peace officer to the person whose arrest is attempted."

Thus, under the...