A third degree assault in Denver may not always be committed as a ‘single’ act so it is important for your Criminal Defense Attorney to determine whether he should argue for the charges to be considered as a single act or whether it is in your interest to have them charged separately. As to what it means for a charge to be committed as a ‘single act’, and how courts decide on what would amount to a ‘single act’ or not, depends on many factors that will be discussed below. In cases where multiple acts have been charged as a single act, it may be important to determine whether your attorney should seek to split the acts and seek separate trials for each of the acts or whether everything should be tried together. The primary reason for splitting charges is to avoid prejudice that is created between the charges. One of the main cases that courts rely on to determine whether charges should be viewed separated or together is People v. Berner.
In People v. Berner, the defendant had entered the victim’s house and demanded information regarding his wife who had left him. In his attempt to find out her whereabouts, he hit the defendant twice, while all the time abusing her verbally. The point of contention here was that the defendant’s striking of the victim took place consecutively. The defendant claimed that this should not amount to two convictions of the misdemeanor, but one, as it was part of the same act. The judges agreed with this opinion during Appeal, and reversed this part of the conviction.
Here, the defendant’s claim was based on the law of the State of Colorado, as well as the United States Constitution, stating that he could not be charged with multiple convictions for one offense. While the defendant in this case was convicted of reckless endangerment and two other offences, what would be of concern for us are the two-counts of third degree assault of which he had been convicted.
The legal definition of a third degree assault can be found in Section 18-3-204, C.R.S.1973, according to which a person would be found to be guilty of a third degree assault if he “… intentionally, knowingly or recklessly causes bodily injury to another person or with criminal negligence he causes bodily injury to another person by means of a deadly weapon’ . It also goes on to classify the offense as a class 1 misdemeanor. For there to be a third degree assault then, reckless endangerment would not suffice. What is required is proof of some bodily injury.
Many cases with similar facts followed in subsequent years, and most referred to People v Berner. Below are a few examples:
‘Consistent with the Brown analysis, it is generally held that when a person commits multiple acts against the same victim during a single criminal episode and each act could independently support a conviction for the same offense, for purposes of double jeopardy the “offense” is typically the episode, not each individual act.’ – State v Moffat (2013). It would seem logical then, that although the acts were carried out multiple times, the offence is taken as ‘one’ as there would be no point in meting out the same sentence twice.
This view was also followed in State v Rummer (1993). The interesting point in this case was that even though there was a 10-minute gap between the two blows, they were still deemed to amount to one ‘criminal transaction’. “—holding that two blows struck in a ten minute fight ” were not separate transactions but were part of a single criminal transaction arising from a single impulse.”
This applied too in the case of acts of rape; “Conversely, we have held that “where two acts of rape have occurred within a short period of time,[and involving one victim] it is part of a continuous process and constitutes only one crime” for purposes of election”. –Weatherly v State (1987).
Your assault lawyer in Denver would then be able to tell you that there are a few important points to keep in mind with regard to third degree assaults:
1) Regardless of the time lag between the two acts, unless it is interrupted in some way, courts will generally deem it as amounting to a ‘single transaction’.
2) If it is found to amount to a ‘single transaction’ then there will only be a single sentencing.
3) Multiple convictions for the same offence go against the United States and Colorado constitution.
What do you think about this type of reference to multiple acts as a ‘single transaction’? Do you think that each time the act is carried out; it must be treated as a single offence? Some may argue that the latter is the right approach.
When analyzing your case, it is always important to discuss your particular circumstances with your Denver Criminal Defense Attorney. In some instances, it is most appropriate for an attorney to attempt to merge two separate charges falling within a single act. In other circumstances, it may make sense for the attorney to try to sever the charges so that the two incidents do not bias each other. It is only after a detailed analysis of your particular case that a defense attorney can give you the advice that you need to know with regard to the best way to proceed when there are issues regarding whether the case should be considered a single transaction or multiple transactions.
The information in this post is for informational purposes only and should not be construed as legal advice or as the creation of an attorney-client relationship. For legal advice, please contact an Attorney.