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Under prevailing Colorado equal protection principles, a defendant may not be charged with second degree assault based on conduct involving strangulation under both the deadly weapon and strangulation subsections of the second degree assault statute but rather must be charged under the strangulation subsection.
Defendant Dearies Deshonne Austin Lee strangled his partner, T.M., resulting in the latter’s loss of consciousness. The People charged defendant with, among other things, two counts of second-degree assault under the strangulation subsection of the applicable statute, 18-3-203(1)(i). Eight months later, however, the People moved to add two additional counts of second-degree assault under the deadly weapon subsection, 18-3-203(1)(b), asserting that Lee had used his hands as a deadly weapon. The trial court granted this motion. Thereafter, defendant moved to dismiss the added counts, arguing, among others, that those counts, as charged, violated his right to equal protection under the Colorado Constitution. The trial court held a hearing on Lee's motion and ultimately granted that motion, dismissing the added counts on equal protection grounds. The appellate court affirmed, holding that charging the same conduct under both subsections would violate a defendant's right to equal protection because the subsections carry different maximum penalties. The People filed a petition for certiorari review.
Could a defendant be charged under both the strangulation subsection and the deadly weapon subsection of Colo. Rev. Stat. § 18-3-203(1), without violating his right to equal protection?
Because, in a strangulation, the instrument being used to strangle the victim (whether hands or otherwise) was always being used as a weapon and would always be at least capable of causing serious bodily injury or death, strangulation would always involve the use of a deadly weapon; thus, the second-degree assault-strangulation and the second-degree assault-bodily injury with a deadly weapon provisions in Colo. Rev. Stat. § 18-3-203(1)(b) and (1)(i) proscribe identical conduct. Accordingly, under prevailing Colorado equal protection principles, defendant could not be charged with second degree assault based on conduct involving strangulation under both the deadly weapon and strangulation subsections of the second-degree assault statute but rather had to be charged under the strangulation subsection.