People v. Olinger

Decision Date07 July 1977
Docket NumberNo. 76-264,76-264
PartiesThe PEOPLE of the State of Colorado, Plaintiff-Appellee, v. James Douglas OLINGER, Defendant-Appellant. . III
CourtColorado Court of Appeals

J. D. MacFarlane, Atty. Gen., Jean E. Dubofsky, Deputy Atty. Gen., Edward G. Donovan, Sol. Gen., Robert C. Lehnert, Asst. Atty. Gen., Denver, for plaintiff-appellee.

Rollie R. Rogers, Colorado State Public Defender, James F. Dumas, Jr., Chief Deputy State Public Defender, Nancy E. Rice, Deputy State Public Defender, Denver, for defendant-appellant.

VanCISE, Judge.

Defendant, James Douglas Olinger, appeals his jury conviction of second degree assault on a peace officer, a class 4 felony. We reverse.

In 1974, Olinger was arrested on a disturbance charge, was handcuffed, placed in the rear seat of a police car, and taken to the Lakewood police station for processing. Because Olinger was violent and uncooperative, he was moved to the Jefferson County jail. En route, Olinger made many threats to the officers. When he was taken out of the police car, still handcuffed, he struggled with one of the officers, knocked him back and kicked his left shin. The assault charge arose from this incident.

Had he been charged and convicted of a violation of 1971 Perm.Supp., C.R.S.1963, 40-3-203(1)(c), assault on a peace officer with intent to cause bodily harm, also a class 4 felony, or had he been convicted of third degree assault, 1971 Perm.Supp., C.R.S.1963, 40-3-204 (now § 18-3-204, C.R.S.1973), a class 1 misdemeanor, 1 the evidence would have sustained a conviction thereof. However, he was tried under 1971 Perm.Supp., C.R.S.1963, 40-3-203(1) (f) (now § 18-3-203(1)(f), C.R.S.1973), which provides that a person commits the crime of assault in the second degree if:

"While lawfully confined, he violently applies physical force against the person of a peace officer or fireman engaged in the performance of his duties, and the person committing the offense knows or reasonably should know that the victim is a peace officer or fireman engaged in the performance of his duties." (emphasis added)

Olinger contends that he was not "lawfully confined" at the time of the assault and that, therefore, the court should have granted his motion for acquittal. We agree.

Penal statutes must be construed strictly, and all doubts must be resolved in favor of those against whom such statutes are sought to be enforced. They "must be definite, certain, and sufficiently explicit in their meaning that the conduct proscribed may be readily understood by persons of ordinary intelligence," and they cannot be extended either by implication or construction. Cokley v. People, 168 Colo. 280, 450 P.2d 1013 (1969); People v. Mooney, 87 Colo. 567, 290 P. 271 (1930).

Looking at the Colorado Criminal Code, we find the word "custody" defined as "the restraint of a person's freedom in any significant way." Section 16-1-104(9), C.R.S.1973. "Confinement" or "confined" is not defined at all. Section 18-8-208, C.R.S.1973, refers to persons who "while being in custody or confinement", escape from said "custody or confinement." If both words meant the same thing, only one would have been needed. In § 16-8-121, C.R.S.1973, dealing with escapes and returns to institutions, subsection (1) refers to one "confined in an institution" and escaping therefrom, whereas subsection (2) refers to a person "committed to the custody of the executive director of the department of institutions".

Significantly, the legislature in 1976 amended subsection (f) of the second degree assault statute so that it now reads "(w)hile lawfully...

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8 cases
  • People v. Schoondermark, 84SA99
    • United States
    • Colorado Supreme Court
    • 6 Mayo 1985
    ...(Colo.App.1981); People v. Mason, 632 P.2d 616 (Colo.App.1981); People v. Gibson, 623 P.2d 391 (Colo.App.1981); People v. Olinger, 39 Colo.App. 491, 566 P.2d 1367 (1977). Defendant's argument is correct; the application of physical force is required. However, his argument that the evidence ......
  • People v. Payne, Court of Appeals No. 18CA0283
    • United States
    • Colorado Court of Appeals
    • 14 Noviembre 2019
    ...does not define "lawfully confined or in custody," the terms have distinct meanings under Colorado law. See People v. Olinger , 39 Colo. App. 491, 493, 566 P.2d 1367, 1368 (1977) ("It is apparent that the legislature intended the word ‘confined’ to have a meaning different from and to be mo......
  • People v. Armstrong
    • United States
    • Colorado Supreme Court
    • 9 Junio 1986
    ...situations as well as to detention facilities. In both People v. Wieder, 693 P.2d 1006 (Colo.App.1984), and in People v. Olinger, 39 Colo.App. 491, 566 P.2d 1367 (1977), the court of appeals held that the General Assembly intended the word "confined" to have a meaning different from and to ......
  • People v. Wieder, 82CA0049
    • United States
    • Colorado Court of Appeals
    • 29 Marzo 1984
    ...physical force against the person of a peace officer ... engaged in the performance of his duties ...." Relying on People v. Olinger, 39 Colo.App. 491, 566 P.2d 1367 (1977), defendant maintains that because he was neither confined in a penal institution nor "in custody" this statute is inap......
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