People v. Saleh

Judge RULAND

dissenting.

Bécause I view the evidence as more than sufficient to sustain defendant's conviction for second degree assault, I respectfully dissent.

As noted by the majority, the definition of a "deadly weapon" contained in § 18-1-901(8)(e), C.R.S.2000, includes any "weapon, device, instrument ... whether animate or inanimate," if it is used in a manner capable of producing serious bodily injury. As a result, in People v. Ross, 831 P.2d 1310 (Colo.1992), our supreme court held that fists may be deadly weapons under the statute depending upon the manner in which they are used.

Relying upon Ross, in People v. Hayes, 923 P.2d 221 (Colo.App.1995), a division of this court held that feet were in effect a deadly weapon when used to kick a victim on the ground in a manner capable of producing serious bodily injury.

Here, however, the majority holds that defendant's foot must be the instrumentality that inflicted the serious bodily injury, that is, the injury must occur at or near the location on the victim's body where the foot struck her. I find no such limitation in the analysis in either Ross or Hayes.

In each opinion, the court refers to the fist or foot as causing the serious bodily injury. However, "cause" means to bring about or effect. Black's Low Dictionary 212 (7th ed.1999). As a result, in my view if the fist or foot strikes the victim with sufficient force to put in motion a sequence of events causing a serious bodily injury, then the evidence is sufficient to sustain the conviction.

Otherwise, an assailant who strikes a victim with a fist with sufficient foree to cause serious internal injuries may be guilty of first or second degree assault while an assailant who kicks a victim into the path of an oncoming car is not. Or, an assailant who uses his hands to choke a victim into unconsciousness *1254causing serious injury would be guilty of first or second degree assault while an assailant who uses his hands to push the victim off a building would not.

In addition, I find no justification for the majority's interpretation and application of the assault statutes. See § 18-0-202(1)(a) and § 18-3-203(1)(d), C.R.8.2000. Indeed, in People v. Hayes, supra, in discussing the evidence supporting a finding of serious bodily injury, the division noted the fact that one victim fell to the pavement as a result of being knocked unconscious. A most plausible inference there was that the injury could have resulted from striking the pavement.

Nor do I view People v. Mozee, 723 P.2d 117 (Colo.1986), as support for the majority's conclusion. In that case the victim was shot with a pistol, and thus, it was unnecessary to address specifically the necessary causal connection between the deadly weapon and the injury. In distinguishing between first degree assault/crime of violence and second degree assault/crime of violence for equal protection purposes, our supreme court analyzed how an injury caused by the pistol would be first degree assault/crime of violence while an injury caused by the assailant's fist while holding a pistol would be second degree assault/crime of violence. However, as I read Mozee, if the shot fired in that case had not struck the victim but had caused him to dive off a wall thus sustaining serious bodily injury, the court would have reached the same conclusion. This is because the deadly weapon would have been used in a manner calculated to cause serious bodily injury.

Here, defendant obviously knew that the victim was standing at the top of a stairway and that a kick between the shoulder blades would propel the victim downward in a fall calculated to ecause serious bodily injury. That injury occurred. Thus, I would affirm the judgment.