2020 COA 19
Colo. Ct. App.2020Background:
- Defendant Weston Thomas lived on victim’s property; the victim testified Thomas grabbed her by the neck, slammed her into a parked car, and said she "didn't belong in this world." A neighbor intervened and restrained Thomas until police arrived.
- When officers tried to handcuff Thomas he flailed; after being handcuffed, he went limp while officers carried him ~20 feet over debris to a patrol car.
- Jury convicted Thomas of third-degree assault (class 6 felony), resisting arrest (class 2 misdemeanor), and criminally negligent bodily injury to an at‑risk adult (class 6 felony).
- At sentencing the court found three prior felonies (a 1995 class 4 theft; Jan 2005 class 6 drug possession; June 2005 class 4 drug possession) and adjudicated Thomas an habitual criminal.
- On appeal Thomas challenged (inter alia) sufficiency of evidence for resisting arrest, whether surroundings could be used to show a substantial risk of injury, whether negligent injury to an at‑risk adult is a lesser‑included offense of third‑degree assault, the treatment of level 4 drug felonies under the habitual‑criminal statute, and alleged prosecutorial misconduct.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Resisting arrest — conduct after handcuffing (going limp) | Thomas resisted arrest by going limp and creating risk to officers | Conduct after handcuffing is irrelevant because arrest was already effected | Going limp while being moved to patrol car can constitute resisting arrest; conviction upheld |
| Use of physical surroundings to prove "substantial risk" | Surroundings (broken glass, debris) increased risk of officer injury and may be considered | Physical condition of area cannot be used to prove risk element | Court may consider surrounding conditions as part of the substantial‑risk analysis |
| Lesser included — negligent injury to an at‑risk adult vs. third‑degree assault | Criminally negligent injury to an at‑risk adult is a lesser included of assault | At‑risk status (age 70+) is an additional element not proved by mere proof of "another person" | Not a lesser included offense; convictions do not merge |
| Habitual criminal — role of level 4 drug felonies as triggering/predicate | Section 18‑1.3‑801(2)(b) precludes counting level 4 drug felonies, so Thomas’s 2005 drug convictions shouldn’t count toward habitual status | Subsection (2)(b) bars level 4 drug felonies as triggering offenses only; they may still serve as predicate felonies | (2)(b) prevents level 4 drug felonies from being triggering offenses but does not bar them as predicate convictions; Thomas had three prior felonies and habitual sentence affirmed |
Key Cases Cited
- People v. Tottenhoff, [citation="691 P.2d 340"] (Colo. 1984) (police must maintain physical control to effect arrest and proceed to booking)
- People v. Armstrong, [citation="720 P.2d 165"] (Colo. 1986) (physical control to prevent a person leaving an arrest scene)
- Wieder v. People, [citation="722 P.2d 396"] (Colo. 1986) (distinguishing field‑arrest resistance and custody‑context assault)
- People v. Thornton, [citation="929 P.2d 729"] (Colo. 1996) (physical control or submission establishes "custody" for statute purposes)
- People v. Huber, [citation="139 P.3d 628"] (Colo. 2006) (upholding judge‑found prior convictions in habitual sentencing)
- Domingo‑Gomez v. People, [citation="125 P.3d 1043"] (Colo. 2005) (standard for prosecutorial‑misconduct review)
- Davis v. Alaska, [citation="415 U.S. 308"] (U.S. 1974) (witness partiality and credibility are proper impeachment considerations)