v. Lee

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.

SUMMARY
August 22, 2019

2019COA130

No. 19CA0482, People v. Lee — Constitutional Law — Colorado
Constitution — Equal Protection; Crimes — Assault in the
Second Degree — Strangulation

In this People’s appeal, a division of the court of appeals holds

that a defendant may not be charged with second degree assault for

the same manual strangulation conduct under both subsections

(1)(b) and (1)(i) of section 18-3-203, C.R.S. 2018, for two

reasons. First, these subsections carry different maximum

penalties, so charging the same strangulation conduct under both

sections would violate equal protection. Second, the legislative

history reveals the General Assembly’s intent that all strangulations

be charged under section 18-3-203(1)(i), rather than under the

more general subsection. Accordingly, the division affirms the
district court’s order dismissing the second degree assault charged

under section 18-3-203(1)(b) and the crime of violence counts.
COLORADO COURT OF APPEALS 2019COA130

Court of Appeals No. 19CA0482
Arapahoe County District Court No. 18CR1431
Honorable Ben L. Leutwyler, Judge

The People of the State of Colorado,

Plaintiff-Appellant,

v.

Dearies Deshonne Austin Lee,

Defendant-Appellee.

ORDER AFFIRMED

Division VI
Opinion by JUDGE FREYRE
Fox and Welling, JJ., concur

Announced August 22, 2019

George H. Brauchler, District Attorney, Jacob Edson, Chief District Deputy
Attorney, Centennial, Colorado, for Plaintiff-Appellant

Megan A. Ring, Colorado State Public Defender, Alison E. Blackwell, Deputy
State Public Defender, Centennial, Colorado, for Defendant-Appellee
¶1 In this People’s appeal, brought under section 16-12-102(1),

C.R.S. 2018, and C.A.R. 4(b)(3), we are asked to decide an issue left

unresolved by another division in People v. Slaughter, 2019 COA 27.

The Slaughter division held that charging a defendant with second

degree assault by strangulation under section 18-3-203(1)(i), C.R.S.

2018, (strangulation subsection), and a crime of violence count

under section 18-1.3-406(2)(a)(I)(A), C.R.S. 2018, violated his right

to equal protection because the penalty was substantially more

severe than if the defendant were charged with second degree

assault under section 18-3-203(1)(b) (deadly weapon subsection), a

per se crime of violence, for the same conduct. Consequently, the

division affirmed the district court’s order dismissing the crime of

violence counts attached to the strangulation charges.

¶2 Here, we must decide whether a defendant may be charged

with strangulation under both the deadly weapon and strangulation

subsections of the second degree assault statute.1 We hold that a

1 Strangulation causing serious bodily injury constitutes first degree
assault under section 18-3-202(1)(g), C.R.S. 2018. We only
consider second degree assault strangulation here. Because the
circumstances here and the legislative amendment concern manual
strangulation, we offer no opinion on whether our analysis would
apply to strangulation with a ligature or other instrument.

1
 defendant may not be charged under both subsections for two

reasons. First, we conclude that charging the same conduct under

both subsections would violate a defendant’s right to equal

protection because the subsections carry different maximum

penalties. Second, we conclude, from the legislative history, that

when the General Assembly amended the second degree assault

statute to add the strangulation subsection, it intended all

strangulation conduct to be charged under this specific subsection,

rather than under the more general deadly weapon subsection.

Accordingly, we affirm the district court’s order dismissing the

second degree assault deadly weapon and crime of violence counts

filed against the defendant, Dearies Deshonne Austin Lee.

I. Procedural Background

¶3 The prosecution originally charged Mr. Lee with two counts of

second degree assault under section 18-3-203(1)(i) (strangulation

subsection), one count of child abuse under section 18-6-401(1),

(7)(b)(I), C.R.S. 2018, and a crime of violence sentence enhancer

under section 18-1.3-406(2)(a)(I)(A). The prosecution later added a

habitual child abuser sentence enhancer, under section 18-6-

401.2, C.R.S. 2018, and two second degree assault charges under

2
 section 18-3-203(1)(b) (deadly weapon subsection). It also amended

the crime of violence count to attach to all four second degree

assault counts.

¶4 Shortly after Slaughter was announced, Mr. Lee moved to

dismiss the second degree assault deadly weapon counts and the

crime of violence sentence enhancer. After a hearing, the court

granted Mr. Lee’s motion. It concluded that a conviction under the

deadly weapon subsection could produce a more severe penalty

than a conviction under the strangulation subsection for the same

conduct and thus, that a potential equal protection violation

existed. It dismissed the crime of violence counts based on

Slaughter.

¶5 On appeal, the People contend that the district court

erroneously interpreted Slaughter. They rely on dicta in the case

stating, “the prosecution, at least in theory, could have charged [the

defendant] with second degree assault (not specifying acts

amounting to strangulation) under section 18-3-203(1)(b) [the

deadly weapon subsection].” Id. at ¶ 20. We agree with Slaughter’s

holding. But, to the extent the Slaughter division intended to

suggest that a defendant can be charged with strangulation under

3
 both the deadly weapon and strangulation subsections, we disagree

with it, because the legislative history, extensively discussed in

Slaughter, reveals a contrary intent. Moreover, charging a

defendant with the same strangulation conduct under both

subsections would violate a defendant’s right to equal protection, an

issue the Slaughter division did not consider.

II. Second Degree Assault Strangulation Conduct May Be
Charged Only Under Section 18-3-203(1)(i)

A. Standard of Review and Law

¶6 We review a court’s legal conclusions and its dismissal of

charges de novo. People v. Porter, 2015 CO 34, ¶ 8. We also

interpret statutes de novo. In re Estate of King, 2019 COA 82, ¶ 11.

When interpreting a statute, our primary goal is to ascertain and

give effect to the General Assembly’s intent. Cowen v. People, 2018

CO 96, ¶ 11. To do so, we examine the plain meaning of the

statutory language. Id. We give consistent effect to all its parts and

construe each provision in harmony with the overall statutory

design. Id.

4
¶7 Before 2016, the People could charge manual strangulation

resulting in bodily injury as a felony only under section 18-3-

203(1)(b), which provides:

(1) A person commits the crime of assault in
the second degree if:

…

(b) With intent to cause bodily injury to
another person, he or she causes such injury
to any person by means of a deadly weapon[.]

Consequently, to obtain a felony conviction in the case of a manual

strangulation, the prosecution was required to prove that the

defendant’s hands were a deadly weapon.

¶8 Second degree assault with a deadly weapon is a class four

felony and constitutes a per se crime of violence. See § 18-3-

203(2)(b); see also § 18-1.3-406(2)(a)(I)(A), (II)(C). A crime of

violence conviction requires a court to sentence a defendant to

prison for a term of at least the midpoint of the presumptive range

but no more than twice the maximum of the presumptive range. §

18-1.3-401(8)(a)(I), C.R.S. 2018. However, in 2016 the General

Assembly created an exception to this requirement for some second

degree assault convictions, including under the deadly weapon

5
 subsection. Ch. 181, sec. 1, § 18-3-203, 2016 Colo Sess. Laws 620.

This exception at section 18-3-203(2)(c)(II) provides:

If a defendant is convicted of assault in the
second degree pursuant to paragraph (b), (c),
(d), or (g) of subsection (1) of this section, the
court shall sentence the offender in
accordance with section 18-1.3-406; except
that, notwithstanding the provisions of section
18-1.3-406, the court is not required to
sentence the defendant to the department of
corrections for a mandatory term of
incarceration.

Consequently, a defendant convicted of second degree assault with

a deadly weapon may be sentenced to probation or community

corrections, but the length of any sentence, including one to prison,

must be in the range of five to sixteen years. See § 18-1.3-

401(8)(a)(I).

¶9 In the same 2016 legislative session, the General Assembly

added the strangulation subsection to the second degree assault

statute. Ch. 327, sec. 2, § 18-3-203, 2016 Colo. Sess. Laws 1328.

This subsection provides that a person commits second degree

assault when,

[w]ith the intent to cause bodily injury, he or
she applies sufficient pressure to impede or
restrict the breathing or circulation of the
blood of another person by applying such

6
 pressure to the neck or by blocking the nose or
mouth of the other person and thereby causes
bodily injury.

§ 18-3-203(1)(i). This subsection allowed the prosecution, for the

first time, to obtain a felony conviction for strangulation without the

burden of proving that hands were a deadly weapon. And because

this subsection does not include a deadly weapon element, it is not

a per se crime of violence and thus is not listed in section 18-3-

203(2)(c)(II)’s crime of violence exception. Rather, it is an

extraordinary risk crime under section 18-1.3-401(10)(b)(XVIII).

Therefore, a defendant convicted of strangulation can be sentenced

to probation, community corrections, or prison for a period of two to

eight years, see id.; § 18-1.3-401(1)(a)(V)(A), and cannot be charged

with the crime of violence sentence enhancer, Slaughter, ¶ 52.

¶ 10 As noted in Slaughter and as the statutory language reveals,

the potential for disparate charges and sentencing arising from the

same strangulation conduct “renders ambiguous the statutory

scheme for the charging and sentence of second degree assault by

strangulation.” Id. at ¶ 23. Therefore, as the Slaughter division did,

we delve into the legislative history of the 2016 amendments to

determine the General Assembly’s intent in adding the

7
 strangulation provision to the second degree assault statute and

whether it contemplated strangulation charges arising under

multiple provisions of the statute. See § 2-4-203(1)(c), C.R.S. 2018

(courts may consider legislative history as an aid in construing

ambiguous statutes); see also Frazier v. People, 90 P.3d 807, 811

(Colo. 2004) (when a statute conflicts with other provisions, an

appellate court may look to legislative history).

B. Legislative History

¶ 11 The strangulation subsection originated as House Bill 16-

1080. Slaughter, ¶ 25. Before its introduction, prosecutors

routinely charged manual strangulation resulting in bodily injury

under the deadly weapon subsection, § 18-3-203(1)(b), which

required them to prove that hands were a deadly weapon. See

Slaughter, ¶ 26. Such proof often required expert testimony. In

rural jurisdictions, prosecutors found it difficult to retain such

experts and, consequently, frequently obtained verdicts for the

lesser offense of misdemeanor third degree assault (requiring proof

of bodily injury without a deadly weapon). See id.; Assault by

Strangulation: Hearing on H.B. 16-1080 before H. Judiciary Comm.,

70th Gen. Assemb., 2d Reg. Sess. (Feb. 9, 2016) (statements of Rep.

8
 Mike Foote, Member, H. Judiciary Comm., sponsor of H.B. 16-1080,

and Mark Hurlbert, Assistant Arapahoe County District Attorney).

Thus, a goal of House Bill 16-1080 was to create a specific

strangulation statute that dispensed with proof of the deadly

weapon element. See § 18-3-203(1)(i); Assault by Strangulation:

Hearing on H.B. 16-1080 before H. Judiciary Comm., 70th Gen.

Assemb., 2d Reg. Sess. (Feb. 9, 2016) (statement of Rep. Mike

Foote, sponsor of H.B. 16-1080) (“The elements [of subsection (1)(i)]

don’t require the finding of hands as a deadly weapon.”); see also

Slaughter, ¶ 30.

¶ 12 Testimony before the General Assembly revealed that another

goal of the bill was to make strangulation a stand-alone criminal

offense due to a disparity in charging decisions and verdicts for

strangulation conduct across the state. According to the bill’s

proponents, the legislation was intended to unify and elevate all

forms of strangulation resulting in bodily injury to a felony in order

to more consistently punish this type of behavior, which is

particularly prevalent in domestic violence situations. See Assault

by Strangulation: Hearing on H.B. 16-1080 before S. Judiciary

Comm., 70th Gen. Assemb., 2d Reg. Sess. (Apr. 27, 2016)

9
 (statement of Rep. John Cooke, Member, S. Judiciary Comm.,

sponsor of H.B. 16-1080) (“We want to increase this to a felony[.]”);

Assault by Strangulation: Hearing on H.B. 16-1080 before H.

Judiciary Comm., 70th Gen. Assemb., 2d Reg. Sess. (Feb. 9, 2016)

(statement of Rep. Mike Foote, sponsor of H.B. 16-1080) (“Our law

currently does not recognize strangulation as a specific offense. It’s

prosecuted right now under various levels of assault in our code,

but there is nothing in our code that actually recognizes

strangulation as a specific subset of assault, and this is what this

bill would address. And, we would be in the vast majority of states

to adopt language like this that recognizes strangulation as a

specific type of assault offense.”); see also Slaughter, ¶ 27.

¶ 13 The passage of House Bill 16-1080 created sections 18-3-

203(1)(i) and 18-3-202(1)(g) (first degree strangulation requiring

proof of “intent to cause serious bodily injury” and “serious bodily

injury”), and, for the first time, allowed prosecutors to obtain a

felony conviction for strangulation without proving that the

defendant’s hands were a deadly weapon. See § 18-3-203(1)(i).

10
 C. Equal Protection Problem

¶ 14 We now address the district court’s equal protection ruling.

Relying on Slaughter, the People contend that an equal protection

violation occurs only when a defendant is charged with

strangulation under section 18-3-203(1)(i) and the crime of violence

sentence enhancer under section 18-1.3-406(2)(a)(I)(A). They

further argue that, in the dicta recited above, the Slaughter division

specifically sanctioned their ability to charge under both the deadly

weapon and strangulation subsections. We are not persuaded

because the statutory language and the legislative history belie their

contention. Moreover, when a statute is susceptible of both

constitutional and unconstitutional constructions, we must adopt

the constitutional construction where it is reasonably consistent

with legislative intent. People in re R.M.D., 829 P.2d 852, 853 (Colo.

1992); People v. Felgar, 58 P.3d 1122, 1124-25 (Colo. App. 2002).

1. Charging Strangulation Under Both Subsections Violates a
Defendant’s Right to Equal Protection

¶ 15 The Fourteenth Amendment to the United States Constitution

provides that no state shall “deny to any person within its

jurisdiction the equal protection of the laws.” U.S. Const. amend.

11
 XIV, § 1. For Colorado state law purposes, the right to equal

protection is provided in article II, section 25, of the Colorado

Constitution. People v. Stewart, 55 P.3d 107, 114 (Colo. 2002).

“[E]qual protection of the laws requires that statutory classifications

of crimes be based on differences that are real in fact and

reasonably related to the general purposes of criminal legislation.”

People v. Marcy, 628 P.2d 69, 74 (Colo. 1981). Unlike federal

jurisprudence, which finds no equal protection problem when

statutes proscribe identical conduct and authorize different

penalties, Colorado law takes a “stricter view” by consistently

holding that statutes proscribing identical conduct and carrying

disparate penalties violate equal protection unless there are

reasonable distinctions in the proscribed conduct. Stewart, 55 P.3d

at 114 (collecting cases).

¶ 16 “To determine whether two statutes proscribe identical

conduct, we analyze the elements of each.” Id. at 115. To avoid

equal protection problems, criminal statutes must (1) adequately

define the act and the mental state of each offense so that fair

warning is given to all persons concerning the nature of the

proscribed conduct and the resulting penalties; (2) reasonably

12
 differentiate between the more serious and the less serious conduct;

and (3) prescribe penalties that are proportionate to the seriousness

of the offenses. Marcy, 628 P.2d at 73. Equal protection requires

that differences in prohibited conduct be “real in fact and

reasonably related to the general purposes of criminal legislation.”

Id. at 74. And where, as here, the constitutional challenge is as-

applied, we must examine the case’s circumstances. People v. Ford,

232 P.3d 260, 263 (Colo. App. 2009); compare People v. Jefferson,

748 P.2d 1223 (Colo. 1988) (facial equal protection challenge), with

Slaughter, ¶ 15 (as applied equal protection challenge).

¶ 17 Here, as noted above, the maximum penalties for

strangulation under the deadly weapon and strangulation

subsections are different — a defendant convicted of strangulation

under the deadly weapon subsection faces a maximum prison

sentence of sixteen years while the same defendant convicted of the

same conduct under the strangulation subsection faces a maximum

prison sentence of only eight years. Yet, both subsections require

proof of an intent to cause bodily injury and both require proof that

bodily injury resulted from the conduct.

13
¶ 18 We agree with the People that a prosecutor is legally permitted

to charge separate offenses for the same conduct. Jefferson, 748

P.2d at 1226. But we disagree with their assertion that there is a

meaningful difference between manual strangulation under the

deadly weapon and strangulation subsections — the conduct is the

same; only the characterization of the instrument of the conduct is

different. See Marcy, 628 P.2d at 78 (Differences in proscribed

conduct “without a sufficiently pragmatic difference” violate a

defendant’s right to equal protection.).

¶ 19 Moreover, whether a defendant suffers the higher penalty

would depend entirely on the prosecutor’s charging discretion. See

Slaughter, ¶ 51. And while we agree with the People that the

subsections’ elements differ and that the deadly weapon subsection

applies to a wide “range of unspecified conduct,” Stewart, 55 P.3d

at 115, we perceive no scenario in which the manual strangulation

conduct described in subsection (1)(i) would not also satisfy

subsection (1)(b), nor have the People offered one. See Marcy, 628

P.2d at 80 (“[A]n evenhanded application of the laws turns on

reasonably intelligible standards of criminal culpability.”).

14
¶ 20 Recognizing that we must construe statutes to avoid

unconstitutional results, we conclude that manual strangulation

causing bodily injury may only be charged under section 18-3-

203(1)(i). Therefore, we affirm the district court’s order dismissing

the deadly weapon and crime of violence counts against Mr. Lee.

See People In Interest of J.D., 2017 COA 156, ¶ 10 (“We are . . .

instructed to construe statutes and rules to avoid unconstitutional

results.”) (cert. granted on other grounds Sept. 17, 2018).

2. The General Assembly Intended That All Strangulations
Causing Bodily Injury Be Charged Under the Strangulation
Subsection

¶ 21 Our resolution of the equal protection issue is supported by

the legislative history that reveals the General Assembly’s intent to

specifically carve out the crime of strangulation resulting in bodily

injury and to make it a felony in all instances.

¶ 22 Well-settled law permits a prosecutor to charge separate

offenses for the same conduct. People v. James, 178 Colo. 401,

404, 497 P.2d 1256, 1257 (1972). Indeed, section 18-1-408(7),

C.R.S. 2018, says,

If the same conduct is defined as criminal in
different enactments or in different sections of
this code, the offender may be prosecuted

15
 under any one or all of the sections or
enactments subject to the limitations provided
by this section. It is immaterial to the
prosecution that one of the enactments or
sections characterizes the crime as of lesser
degree than another, or provides a lesser
penalty than another, or was enacted by the
general assembly at a later date than another
unless the later section or enactment
specifically repeals the earlier.

¶ 23 It is equally well settled that enactment of a specific criminal

statute does not preclude prosecution under a general criminal

statute “unless a legislative intent is shown to limit prosecution to

the special statute.” People v. Bagby, 734 P.2d 1059, 1061 (Colo.

1987). In most instances, we determine whether the General

Assembly intended to supplant a general statute for a more specific

statute by examining three factors:

(1) whether the [specific] statute invokes the
full extent of the state’s police powers; (2)
whether the specific statute is part of an act
creating a comprehensive and thorough
regulatory scheme to control all aspects of a
substantive area; and (3) whether the act
carefully defines different types of offenses in
detail.

People v. Smith, 938 P.2d 111, 116 (Colo. 1997); see also Bagby,

734 P.2d at 1062. But here, because the statute is ambiguous, we

16
 may discern legislative intent from the legislative history. See

Slaughter, ¶ 23.

¶ 24 As noted above, the legislative history shows that the General

Assembly intended to eliminate misdemeanor convictions for

strangulation resulting in bodily injury and to make all such

strangulations felony offenses, recognizing that this conduct

constitutes serious domestic violence behavior and that the

enhanced punishment is consistent with that of the vast majority of

other states. The General Assembly did this in two ways: (1) by

specifically defining what constitutes strangulation (applying

sufficient pressure to impede or restrict breathing or blood

circulation by applying pressure to the neck or by blocking the nose

or mouth); and (2) by removing the deadly weapon element, thereby

lowering the prosecution’s burden of proof. Indeed, removing the

deadly weapon element necessarily removed strangulation from the

list of crimes constituting per se crimes of violence. That the

General Assembly intended this trade-off — no per se crime of

violence in exchange for all strangulations resulting in bodily injury

constituting a felony — is evident from the testimony given during

the bill’s consideration.

17
¶ 25 As well, the General Assembly added the crime of violence

exception found in section 18-3-203(2)(c)(II) during the same

legislative session, and it specifically excluded strangulation from

the exception, further evidencing that this trade-off was deliberate.

See People v. Garcia, 2016 COA 124, ¶ 9 (“Courts presume that the

General Assembly intended the entire statute to be effective.”); see

also Pinnacol Assurance v. Hoff, 2016 CO 53, ¶ 48 (“We construe

the legislature’s failure to include particular language not as an

oversight, but as a deliberate omission reflecting legislative intent.”).

¶ 26 Accordingly, we conclude that the General Assembly has

demonstrated its intent to limit prosecution for manual

strangulation resulting in bodily injury to the strangulation

subsection in section 18-3-203(1)(i). See Bagby, 734 P.2d at 1062.

It may, and it did in the first degree assault statute, section 18-3-

202(1)(g), provide a harsher penalty for strangulation that results in

serious bodily injury. See Stewart, 55 P.3d at 114-15 (“The general

assembly may establish more severe penalties for acts that it

believes have graver consequences, even if the differences are only a

matter of degree.”).

18
¶ 27 Finally, because we affirm the district court’s order, we need

not address Mr. Lee’s other contentions. See Qwest Corp. v. City of

Northglenn, 2014 COA 55, ¶ 27 (appellate court need not reach all

issues if one issue is dispositive).

III. Conclusion

¶ 28 The order is affirmed.

JUDGE FOX and JUDGE WELLING concur.

19