 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
People v. Tallwhiteman3/10/2005
commit the underlying offense of reckless manslaughter). Such a connection could only be demonstrated by viewing the evidence adduced at trial, an inquiry outside the purview of the strict elements test. Meads v. People, supra, 78 P.3d at 295. Stated another way, the fact that a defendant causes serious bodily injury to a person, which could be anything from a minor fracture to a substantial risk of death, does not necessarily mean that he or she recklessly took a step toward causing the death of a person, or in other words, that he or she acted with a conscious disregard of a substantial and unjustifiable risk that the acts or conduct will cause the death of another person. See People v. Thomas, supra.
Accordingly, we conclude that attempted reckless manslaughter is not a lesser included offense of first degree assault with intent to cause serious bodily injury, and thus, defendant's convictions of both offenses do not violate double jeopardy principles.
B. First Degree Assault and Reckless Endangerment
Defendant also contends that his conviction for reckless endangerment must be vacated because it is a lesser included offense of first degree assault with intent to cause serious bodily injury. We agree.
Applying the same analysis as above, we determine whether the offenses are sufficiently distinguishable to permit multiple punishments, and in so doing, we apply the strict elements test.
As already noted, under § 18-3-202(1)(a), first degree assault occurs when a person with intent to cause serious bodily injury to another person causes serious bodily injury by means of a deadly weapon.
In comparison, under § 18-3-208, reckless endangerment is committed when " person . . . recklessly engages in conduct which creates a substantial risk of serious bodily injury to another person."
The establishment of every element of first degree assault with intent to cause serious bodily injury would necessarily include proving conduct that creates a substantial risk of serious bodily injury. Meads v. People, supra, 78 P.3d at 295; cf. People v. Beatty, 80 P.3d 847, 853 (Colo. App. 2003)(where recklessness establishes an element of a crime, that element is also established if the defendant acts intentionally); People v. Berner, 42 Colo. App. 520, 600 P.2d 112 (1979)(reckless endangerment not a lesser included offense of third degree assault, because third degree assault only requires proof of bodily injury, not proof of a substantial risk of serious bodily injury).
Thus, because reckless endangerment is a lesser included offense of first degree assault with intent to cause serious bodily injury, we conclude that defendant's reckless endangerment conviction must be vacated.
Because we so conclude, we need not consider defendant's alternative argument that the trial court's instruction on that charge failed to identify a particular victim or require a unanimous verdict.
VIII. Sentencing
Finally, defendant contends that at sentencing the trial court violated his constitutional right to due process by considering an uncharged and unproven allegation of a prior assault. We disagree.
At sentencing, the prosecutor sought to present the testimony of the alleged victim in one of two prior assault cases involving defendant. Defendant objected, stating that the cases had been dismissed for insufficient evidence. The court overruled the objection and allowed the testimony.
A sentencing court is largely unconstrained as to the evidence it may consider during the sentencing phase of criminal proceedings. People v. Vensor, ___ P.3d ___ (Colo. App. 03CA1983, Jan. 27,
Page 1 2 3 4 5 6 7 8 9 10 Colorado DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|