People v. Saleh
| Decision Date | 29 April 2002 |
| Docket Number | No. 01SC74.,01SC74. |
| Citation | 45 P.3d 1272 |
| Parties | The PEOPLE of the State of Colorado, Petitioner, v. Christopher SALEH, Respondent. |
| Court | Colorado Supreme Court |
Rehearing Denied May 20, 2002.1
Ken Salazar, Attorney General, Catherine P. Adkisson, First Assistant Attorney General, Denver, Colorado, for Petitioner.
David S. Kaplan, Colorado State Public Defender, Elizabeth Griffin, Public Defender, Denver, Colorado, for Respondent.
A jury found respondent, Christopher Saleh, guilty of second degree reckless assault under section 18-3-203(1)(d), 6 C.R.S. (2001). Saleh kicked the victim down a flight of stairs causing serious bodily injury. We granted certiorari in People v. Saleh, 25 P.3d 1248 (Colo.App.2000), to determine whether Saleh's foot qualified as a deadly weapon under section 18-1-901(3)(e), 6 C.R.S. (2001).2 Because his foot did not actually and directly cause the serious bodily injury, the court of appeals held that Saleh could not be convicted of second degree reckless assault, which requires the use of a deadly weapon. See § 18-3-203(1)(d), 6 C.R.S. (2001); Saleh, 25 P.3d at 1252. We disagree. Any object, including a foot, may be a deadly weapon depending upon the manner in which it was used. People v. Ross, 831 P.2d 1310, 1313 (Colo.1992).
This case arises out of a domestic violence incident between Saleh and his then girlfriend, Janise Apodaca. On the afternoon of February 1, 1998, Saleh and Apodaca were arguing at a Denver bus stop. Following this argument, they went their separate ways. Apodaca decided later that day to end her relationship with Saleh. She arrived at their shared apartment around 9:30 p.m. to pick up some of her clothes, which she needed for a job interview the next morning. However, when Apodaca let herself into their apartment, Saleh was there.
Apodaca proceeded into the bedroom to gather her clothes when Saleh began to argue with her about the break up. Saleh shut the bedroom door and would not allow Apodaca to leave the room for about two and one-half hours. During this extended argument, Saleh shoved Apodaca and she slapped him. Ultimately, Apodaca threatened to jump out of the second-story bedroom window if Saleh would not allow her to leave. Close to midnight, Saleh finally agreed to release Apodaca from the bedroom and she headed out of the room towards the stairs. As Apodaca reached the top of the stairs, Saleh came up behind her, raised his foot, and kicked Apodaca in the back between her shoulder blades, propelling her down the flight of stairs. Despite Apodaca's attempts to stop the fall, she tumbled all the way down thirteen wooden steps. She came to rest on her back at the bottom of the staircase. Due to the fall, Apodaca suffered a severely broken wrist, a sprained ankle, and a fractured pelvis and was hospitalized for six weeks.
The prosecution charged Saleh with one count of first degree assault with a deadly weapon under section 18-3-202(1)(a), 6 C.R.S. (2001). The prosecution added three habitual criminal counts at a later date. The trial court instructed the jury on first degree assault with a deadly weapon and two types of second degree assault as lesser-included offenses. The defense requested a lesser-included offense instruction for third degree assault, but the trial court did not instruct the jurors on that charge. During jury deliberations, the jury deadlocked eleven to one, with eleven jurors favoring conviction on the first degree assault charge. One remaining juror was willing to convict only on second degree reckless assault by means of a deadly weapon. In response to the jury's request for further instructions, the trial court gave the jury a lesser included offense instruction:
If the jury deadlock centers solely on the degree of guilt rather than the issue of guilt or nonguilt, then the jury should return a guilty verdict on the lesser offense as long as every essential element of the lesser offense is necessarily included in the greater offense and all jurors unanimously agree on the defendant's guilt as to either the greater or lesser offense.
The jury then returned a verdict for second degree reckless assault pursuant to section 18-3-203(1)(d), 6 C.R.S. (2001). Saleh appealed his conviction to the court of appeals.
The court of appeals held that the evidence was insufficient as a matter of law to sustain Saleh's conviction of second degree assault under section 18-3-203(1)(d), and entered judgment on the lesser-included offense of third degree assault. The court of appeals reasoned that the foot itself must be the instrument that actually and directly caused the serious bodily injury in order to qualify as a deadly weapon for a second degree assault conviction. It found that the stairs, rather than Saleh's foot, were the direct cause of the injuries, because there was no evidence that Apodaca sustained any injury where Saleh's foot made contact with her body. Hence, it concluded that Saleh had not committed assault by means of a deadly weapon, and thus could be guilty only of third degree assault.
We hold that Saleh's conviction for using a deadly weapon is proper under section 18-1-901(3)(e), 6 C.R.S. (2001), because he used his foot in a manner capable of producing serious bodily injury when he kicked the victim down the stairs. The court of appeals misapplied the definition of a "deadly weapon," when it held that "no violation of § 18-3-203(1)(d) occurs unless the foot is itself the instrument that actually and directly causes the serious bodily injury."3 People v. Saleh, 25 P.3d 1248, 1252 (Colo.App.2000).
Colorado has defined what constitutes a "deadly weapon" in section 18-1-901(3)(e), 6 C.R.S. (2001), which states:
This case presents the question of whether an object may be a deadly weapon when the object itself does not directly cause the victim's serious bodily injury.
We have consistently analyzed whether objects are deadly weapons by evaluating the manner in which the objects are used. People v. Ross, 831 P.2d 1310, 1312 (Colo.1992); see Bowers v. People, 617 P.2d 560, 562-63 (Colo.1980)( that a whiskey bottle may be a deadly weapon depending on the manner in which it is used); People v. Bramlett, 194 Colo. 205, 209, 573 P.2d 94, 96-96 (1977)( that any object used in a manner capable of producing death or bodily injury is a deadly weapon); Miller v. Dist. Court, 193 Colo. 404, 407, 566 P.2d 1063, 1066 (1977)("In evaluating whether a device is a deadly weapon, the real issue is whether, in the manner it was used, it could have caused death or serious injury."); Grass v. People, 172 Colo. 223, 229, 471 P.2d 602, 605 (1970)( that a shoe may be a deadly weapon depending on the manner of its use).
Any object can be a deadly weapon if it is used in a manner capable of producing death or serious bodily injury. Ross, 831 P.2d at 1313. Body parts can be deadly weapons depending upon the manner in which they are used.4 Id.; see also People v. Hayes, 923 P.2d 221, 227 (Colo.App. 1995)("Any object, including a fist, can be a deadly weapon if it is used or intended to be used in a manner capable of producing death or serious bodily injury."). Whether an object is a deadly weapon does not depend upon the ultimate result of an object's use. The statute does not require that the object actually cause serious bodily injury; rather, it must be "capable of producing" such injury. See People In Interest of J.R., 867 P.2d 125, 127 (Colo.App.1993)("In evaluating whether a device is a deadly weapon, the issue is whether, in the manner it was used, it could have caused death or serious bodily injury.").
In vacating Saleh's second degree assault conviction, the court of appeals reasoned that the object, here the foot, must "actually and directly" cause the serious bodily injury to qualify as a deadly weapon. Saleh, 25 P.3d at 1252. Because the stairs directly caused the victim's injuries, Saleh's foot could not be considered a deadly weapon. Id. Our case law does not support this statutory construction. See Ross, 831 P.2d at 1313; People v. Mozee, 723 P.2d 117, 128 (Colo.1986); Miller, 193 Colo. at 407, 566 P.2d at 1066 ().
The court of appeals reasoned that because parts (I), (II) and (III) of section 18-1-901(3)(e) referred to instruments that "can be used in a manner consistent with their design to inflict serious bodily injury," the General Assembly must also have intended part (IV) to apply only to those "things that are themselves the instruments that actually inflict serious bodily injury." Saleh, 25 P.3d at 1251. We disagree. The phrase "any other weapon, device, instrument, material or substance, whether animate or inanimate" in section 18-1-901(3)(e) is a general provision applying to any and all objects other than a firearm, knife, or bludgeon. Section 18-1-901(3)(e) limits the scope of "deadly weapon" by including only those objects which "in the manner [they are] used or intended to be used [are] capable of producing death or serious bodily injury." § 18-1-901(3)(e); Ross, 831 P.2d at 1313.
The court of appeals misconstrued our holding in Mozee, by requiring that the object be the "actual and direct" cause of the victim's injuries. Saleh, 25 P.3d at 1252. We have not identified such a limitation upon the definition of a deadly weapon; rather, we have interpreted the definition more broadly. Ross, 831 P.2d at 1313 (...
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