If you have been arrested for assault, you should contact your Denver assault attorney immediately to discus whether you had the sufficient mental state to commit the crime that you have been accused of. In some cases you might be charged with both second and third degree assault, provided that the it can be proved that you used a deadly weapon, either recklessly or with the specific intent of causing serious bodily injury to another, whereas the latter requires some injury to be caused knowingly or recklessly. Additionally, if the acts were carried out in a ‘heated passion’, a claim of provocation, as a defense, may exist that could lower your charges. Last, the general nature of the events may create a situation where assaults committed against separate people can be seen as a single episode thereby allowing the less serious charges to be considered as lesser-included charges of the main assault.
One of the cases in Colorado that helps guide attorneys on these issues is People v. Howard. In this case, a defendant was convicted of second and third degree assault for biting off the tip of the victim’s finger. He was also found guilty of a third degree assault for hitting a victim. The offences had taken place when the defendant had been taken to hospital by a neighbor, after he had been found unconscious. The defendant, who had overdosed on drugs and been intoxicated, had not wanted to be taken into the hospital for any treatment and put up a fight when he was taken into the hospital. While being restrained during examination, he hit a nurse who was trying to inject him and bit off the finger of a female security guard. On appeal, the defendant claimed that the evidence showing specific intent to cause bodily harm was not sufficient. He also claimed that since third degree assault was a lesser offence of second degree assault, they should both be merged. The court agreed with this second claim. The defendant’s claim with regard to provocation was rejected.
There are two important aspects of this case that a person should consider:
The actual knowledge that a person needs to have to commit a specific intent crime is slight. In other words, even if you are in a reduced mental state, it is highly likely that a court will find that you had sufficient control of your body to commit a specific intent crime.
Third Degree Assault charges can be considered a lesser-included offense even when there is a separate victim and separate actions that constitute the additional charge.
People v Howard then, has been followed in subsequent cases. Below we take a look at a few.
In People v Villarreal (2005) it was stated that, “Our case law recognizes “heat of passion provocation” as a circumstance that mitigates otherwise applicable penalties for the crimes of second degree murder, first degree assault, and second degree assault.”
In the same vein, with regard to provocation, the court said in People v Sanchez (2010):
“ We conclude that by enacting section 18-3-202 (2)(a) the General Assembly did not intend to create a new offense of first-degree assault committed under heat of passion, which contained the same elements as first-degree assault and an additional element of heat of passion.”
“The specific intent to commit a crime may, therefore, be inferred from the defendant’s conduct and the overall circumstances.”- People v Phillips (2009). In Howard, although the defendant was intoxicated and brought in expert evidence to show the effects of such, it was found that while he may have seemed intoxicated from the outside, he was able to form the intention required to harm the victims.
Do you believe that it is right for the two offences to be merged, where one offence is a less included offence of the other? This would seem logical as there is no point in meting out two sentences for crimes that are essentially a part of each other.
An offence of third degree assault, although not as serious as the other two types, must not be taken lightly, as it can get you jail time of 2 years. You would need to speak to a Denver assault lawyer to guide you on your options after on your arrest.
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.