People v. Wieder, 82CA0049

Citation693 P.2d 1006
Decision Date29 March 1984
Docket NumberNo. 82CA0049,82CA0049
PartiesThe PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Edward A. WIEDER, Defendant-Appellant. . I
CourtColorado Court of Appeals

Duane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty. Gen., Richard H Forman, Sol. Gen., Virginia Byrnes, Asst. Atty. Gen., Denver, for plaintiff-appellee.

David F. Vela, Colorado State Public Defender, Thomas M. Van Cleave, III, Deputy State Public Defender, Denver, for defendant-appellant.

PIERCE, Judge.

Defendant, Edward A. Wieder, appeals his convictions on two counts of second degree assault, and sentencing for such convictions as an habitual offender. We affirm.

In December 1978, defendant was involved in an automobile accident. After investigating officers arrived at the scene, they called for paramedic assistance for defendant. Defendant attempted to assault a paramedic while being examined; two police officers then subdued, handcuffed, and took defendant to their patrol car with the intent of taking him to the police station. Defendant then assaulted both police officers as they unlocked the patrol car door. Once again, the officers subdued defendant. He was charged with the assaults on the two police officers.

On appeal, defendant asserts error in application of the assault statute to him, and challenges the statute's constitutionality. Inasmuch as our Supreme Court has declined to accept transfer of jurisdiction, we address all allegations of error made. See § 13-4-102(1)(b), C.R.S.

I.

Defendant's first allegation of error is that second degree assault, as defined in § 18-3-203(1)(f), C.R.S. (1978 Repl.Vol. 8) does not govern his conduct in this case. That subsection of the statute states that a person commits second degree assault if:

"While lawfully confined or in custody, he violently applies 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 inapplicable to his activities. We disagree.

We agree that defendant here was not "in confinement," as delineated by People v. Olinger, supra, but when the assaults occurred, the arrest was complete and defendant was not free to leave the presence of the officers. See People v. Roybal, 655 P.2d 410 (Colo.1982). Hence, defendant was "in custody," and the statute is applicable.

II.

Defendant further complains that it was improper to convict him under this subsection of the statute because its 1976 amendment, which added the words "or in custody," is unconstitutional. Defendant asserts the amendment was passed during an extraordinary session of the General Assembly pursuant to the Call of the Governor concerning the problem of assaults on police officers. Defendant interprets this Call to be restricted to those incidents which occur in penal institutions. Even if the Call could be so narrowly construed, this statute is not unconstitutional.

A statute is presumed to be constitutional. People v. Velasquez, 666 P.2d 567 (Colo.1983). That legislation might vary in specifics from the language of the Call will not defeat this presumption. While the Governor's proclamation may state the purpose for which the General Assembly is convened or may limit its consideration to a specific area of a general subject, the legislative body is free to determine the manner in which the purpose shall be accomplished and may enact legislation germane to and having a natural connection with the purpose for which it was convened. Smith v. Curran, 268 Mich. 366, 256 N.W. 453 (1934); Arrow Club, Inc. v. Nebraska Liquor Control Commission, 177 Neb. 686, 131 N.W.2d 134 (1964). Because the Call here generally concerned protection of police officers and others while carrying out their duties, the 1976 amendment definitely falls within the general subject matter and is, therefore, constitutional.

III.

Defendant also claims the statute is unconstitutional because a harsher punishment is prescribed for second degree assault than is prescribed for a violation of § 18-8-103, C.R.S. (1978 Repl.Vol. 8), the statute regarding resisting arrest, which proscribes substantially identical conduct. We disagree.

The General Assembly is free to prescribe different punishments for conduct perceived to result in varying degrees of social consequences. People v. Thatcher, 638 P.2d 760 (Colo.1981); People v. Johnson, 195 Colo. 350, 578 P.2d...

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5 cases
  • People v. Fields, 82CA0628
    • United States
    • Colorado Court of Appeals
    • August 9, 1984
    ...by the Court of Appeals." Accordingly, we have jurisdiction to address the issue of the statute's constitutionality. See People v. Wieder, 693 P.2d 1006 (Colo.App.1984); Fisher v. Jorgensen, 674 P.2d 1003 (Colo.App.1983). The first step in any equal protection analysis is to determine the s......
  • People v. Schoondermark, 84SA99
    • United States
    • Colorado Supreme Court
    • May 6, 1985
    ...the application of force rather than a mere attempt to apply force. See, e.g., People v. Hart, 658 P.2d 857 (Colo.1983); People v. Wieder, 693 P.2d 1006 (Colo.App.1984); People v. Saiz, 660 P.2d 2 (Colo.App.1982); People v. Walker, 634 P.2d 1026 (Colo.App.1981); People v. Mason, 632 P.2d 61......
  • People v. Salazar, 83CA1066
    • United States
    • Colorado Court of Appeals
    • September 12, 1985
    ...in that appeal. But see People v. Fields, 697 P.2d 749 (Colo.App.1984) (cert. granted, March 11, 1985, on other issues); People v. Wieder, 693 P.2d 1006 (Colo.App.1984) (cert. granted, January 14, 1985, on other issues); Fisher v. Jorgensen, 674 P.2d 1003 Defendant argues that violation of ......
  • People v. Armstrong
    • United States
    • Colorado Supreme Court
    • June 9, 1986
    ..."or," makes it plain that 18-3-203(1)(f) applies to field arrest 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 inte......
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