People v. Saleh

• Decision Date: 26 October 2000
• Docket Number: No. 98CA2186.,98CA2186.
• Citation: 25 P.3d 1248
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Christopher SALEH, Defendant-Appellant.
• Court: Colorado Court of Appeals

25 P.3d 1248

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Christopher SALEH, Defendant-Appellant.

No. 98CA2186.

Colorado Court of Appeals, Div. V.

October 26, 2000.

Rehearing Denied December 28, 2000.

Certiorari Granted July 2, 2001.

Ken Salazar, Attorney General, Catherine P. Adkisson, First Assistant Attorney General, Denver, CO, for Plaintiff-Appellee. Litvak Litvak Mehrtens and Epstein, P.C., Barbara Jensen, Denver, CO, for Defendant-Appellant.

Opinion by Judge CRISWELL.¹

Defendant, Christopher Saleh, appeals the judgment of conviction entered upon a jury verdict finding him guilty of second degree assault. We reverse the judgment and remand with directions to enter a judgment of conviction on the lesser-included offense of third degree assault and to resentence defendant on that conviction.

The evidence at trial established that, on the night in question, defendant and his fiancée (the victim) were arguing in their second-story residence. When the argument turned into a physical altercation, the victim announced that she was leaving. Defendant followed the victim to the head of the stairs and kicked her from behind. According to the prosecution's version of the evidence, defendant's foot struck the victim between the shoulder blades and propelled her down the stairs. The victim suffered a broken wrist and a fractured pelvis from the fall.

Defendant was charged with first degree assault in violation of § 18-3-202(1)(a), C.R.S.2000, which includes the elements of causing serious bodily injury by means of a deadly weapon with the intent to do so. The jurors were also instructed on two types of second degree assault as lesser-included offenses. They were not instructed on third degree assault.

Defendant was found guilty of second degree assault defined as "recklessly caus[ing] serious bodily injury to another person by means of a deadly weapon." Section 18-3-203(1)(d), C.R.S.2000. He was acquitted of all remaining charges.

I.

Defendant first argues that the People failed to present sufficient evidence to prove that the victim's injuries occurred by means of the use of defendant's foot as a deadly weapon. We agree.

Colorado law recognizes three degrees of assault.

Third degree assault, a class one misdemeanor, is committed by knowingly or recklessly causing bodily injury or by causing bodily injury through criminal negligence by means of a deadly weapon. Section 18-3-204, C.R.S.2000.

Second degree assault, a class four felony, may be committed in a number of ways. Relevant to the issue presented here, second degree assault may be committed by inflicting "serious bodily injury" while intending to cause only "bodily injury." Section 18-3-203(1)(g), C.R.S.2000. Likewise, it may be committed if the intent is to cause only "bodily injury," but, "serious bodily injury" results "by means of a deadly weapon." Section 18-3-203(1)(b), C.R.S.2000. Finally, recklessly causing serious bodily injury "by means of a deadly weapon" also constitutes second degree assault. Section 18-3-203(1)(d), C.R.S. 2000.

First degree assault, a class three felony, is described in § 18-3-202, C.R.S.2000, and may be committed, inter alia, by intending to cause serious bodily injury and doing so "by means of a deadly weapon," § 18-3-202(1)(a), or by knowingly engaging in conduct that creates a grave risk of death and which conduct results in the infliction of serious bodily injury. Section 18-3-202(1)(c), C.R.S.2000.

As can be seen, therefore, the seriousness of the offense depends upon the intent of the actor, the degree of injury caused, and whether the injury was caused by means of a deadly weapon. Specifically, intentionally inflicting serious bodily injury without use of a deadly weapon constitutes assault in the second degree, and if the injury is inflicted by means of a deadly weapon, the offense becomes first degree assault. Similarly, recklessly causing bodily injury constitutes third degree assault, but the offense becomes second degree assault if the injury is inflicted intentionally or if serious bodily injury is inflicted recklessly and the injury is inflicted by means of a deadly weapon.

A challenge to the sufficiency of the evidence requires a reviewing court to determine whether the relevant evidence, both direct and circumstantial, when viewed as a whole and in the light most favorable to the prosecution, is substantial and sufficient to support a conclusion by a reasonable person that the defendant is guilty of the crime charged beyond a reasonable doubt. The prosecution must be given the benefit of every reasonable inference that might fairly be drawn from the evidence. People v. Inman, 950 P.2d 640 (Colo.App.1997).

Initially, we reject the People's suggestion that defendant failed to preserve his claim because he did not raise the issue in the trial court. A sufficiency of the evidence claim may be raised for the first time on appeal. See Morse v. People, 168 Colo. 494, 452 P.2d 3 (1969)

.

Whether an article is a deadly weapon may present a factual issue because of the article's very character or because of the circumstances of its use. People v. Lucero, 985 P.2d 87 (Colo.App.1999).

The jury here was given the following instruction which accurately set forth the statutory definition of a deadly weapon contained in § 18-1-901(3)(e), C.R.S.2000:

Deadly Weapon means any of the following, which in the manner it is used or intended to be used is capable of producing death or serious bodily injury: (I) a firearm, whether loaded or unloaded, (II) a knife, (III) a bludgeon, or (IV) any other weapon, device, instrument, material or substance, whether animate or inanimate.

This statute enumerates three specific types of deadly weapons, i.e., firearms, knives, and bludgeons. All of these items are instruments that can be used in a manner consistent with their design to inflict serious bodily injury. J.D.C. v. District Court, 910 P.2d 684 (Colo.1996) (certain weapons by their very design and make are so lethal that, as a matter of law, they are deadly weapons). It can be presumed, therefore, that the General Assembly intended for the general definition in the final sub-section of § 18-1-901(3)(e), any other weapon, device, instrument, material or substance, likewise to apply to things that are them-selves the instruments that actually inflict serious bodily injury. See People v. One 1988 Mazda 323, 857 P.2d 569 (Colo.App. 1993)

(when General Assembly's intent is unclear, general words which follow specific words in a statutory enumeration are to be construed to embrace only objects similar to those specifically enumerated).

Certainly, the prior decisions with respect to the nature of a deadly weapon have emphasized that such a weapon must be one that, because of its size, weight, and characteristics, and the circumstances under which it is used, is itself capable of producing serious bodily injury. Grass v. People, 172 Colo. 223, 227, 471 P.2d 602, 604 (1970) (approved instruction to jury that foot clad in shoe could be a deadly weapon depending upon "the nature of the instrument or thing, the manner of its use, the location on the body of the injuries inflicted and the extent of such injuries."); Hutton v. People, 156 Colo. 334, 338, 398 P.2d 973, 975 (1965) (a simulated pistol may be a deadly weapon "because of its substance, size and weight as a bludgeon wielded within striking distance of the person to be robbed.").

Under this general definition, some cases have held that a foot or a fist may be considered to be a deadly weapon. However, in those cases, the fist or the foot was the instrument that actually and directly caused the serious bodily injury. See People v. Ross, 831 P.2d 1310 (Colo.1992)

(blows from fist caused eight major fractures around victim's eyes, nose, and mouth); People v. Hayes, 923 P.2d 221, 227 (Colo.App.1995) (although prosecution must prove "that the deadly weapon actually caused serious bodily injury," evidence was sufficient to prove that ring on finger of fist that struck victim caused tearing of victim's lip).

The statute under which defendant was convicted requires that the serious bodily injury be inflicted "by means of" a deadly weapon. In light of this requirement, the statutory definition of deadly weapon adopted by the General Assembly, and the prior cases, we conclude that, even if a foot may be considered to be a deadly weapon under some circumstances, 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.

This interpretation avoids rendering part of the definition superfluous. If a deadly weapon includes body parts not actually used to inflict the serious injury, the issue whether the defendant caused serious bodily injury "by means of a deadly weapon" would be irrelevant in any second degree assault prosecution under § 18-3-203(1)(d), so long as it was proven that the victim sustained a "serious bodily injury" resulting from the defendant's actions. Under such an interpretation, any object, however used, which use set in motion a series of events resulting in serious bodily injury, would, by reason of such use, constitute the infliction of serious bodily injury "by means of a deadly weapon." As thus interpreted, it would be the ultimate result of the use, and not the manner of the use, that would determine whether the instrument was a deadly weapon. And, under such an analysis, every serious bodily injury would, of necessity, result from the use of a deadly weapon.

The construction we adopt here also advances the General Assembly's intent, consistently reflected throughout the criminal code, to punish more severely those crimes in which an object capable of inflicting serious bodily injury is actually used for such a purpose.

This legislative intent was recognized in People v. Mozee, 723 P.2d 117 (Colo.1986). There, the defendant argued, on equal protection...