18-3-204. Assault in the third degree.

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

(a) The person knowingly or recklessly causes bodily injury to another person or with criminal negligence the person causes bodily injury to another person by means of a deadly weapon; or

(b) The person, with intent to infect, injure, harm, harass, annoy, threaten, or alarm another person whom the actor knows or reasonably should know to be a peace officer, a firefighter, or an emergency medical technician, causes such other person to come into contact with blood, seminal fluid, urine, feces, saliva, mucus, vomit, or any toxic, caustic, or hazardous material by any means, including but not limited to throwing, tossing, or expelling such fluid or material.

(2) (a) An adult or juvenile who has had a court find that there is probable cause to believe that he or she has committed an offense pursuant to paragraph (b) of subsection (1) of this section or is convicted of an offense pursuant to paragraph (b) of subsection (1) of this section or any person who is determined to have provided blood, seminal fluid, urine, feces, saliva, mucus, or vomit to a person for whom probable cause has been found or been convicted of such an offense shall be ordered by the court to submit to a medical test for communicable diseases and to supply blood, feces, urine, saliva, or other bodily fluid required for the test. The results of such test shall be reported to the court or the court's designee, who shall then disclose the results to any victim of the offense who requests such disclosure. Review and disclosure of medical test results by the court shall be closed and confidential, and any transaction records relating thereto shall also be closed and confidential. If a person subject to a medical test for communicable diseases pursuant to this subsection (2) voluntarily submits to a medical test for communicable diseases, the fact of the person's voluntary submission shall be admissible in mitigation of sentence if the person is convicted of the charged offense.

(b) In addition to any other penalty provided by law, the court may order any person who is convicted of the offense described in paragraph (b) of subsection (1) of this section to meet all or any portion of the financial obligations of medical tests performed on and treatment prescribed for the victim or victims of the offense.

(3) Assault in the third degree is a class 1 misdemeanor and is an extraordinary risk crime that is subject to the modified sentencing range specified in section 18-1.3-501 (3).

Source: L. 71: R&RE, p. 421, § 1. C.R.S. 1963: § 40-3-204. L. 77: Entire section amended, p. 961, § 10, effective July 1. L. 2004: Entire section amended, p. 635, § 4, effective August 4. L. 2009: Entire section amended, (HB 09-1120), ch. 305, p. 1649, § 1, effective July 1.

Editor's note: Section 4 of chapter 305, Session Laws of Colorado 2009, provides that the act amending this section applies to offenses committed on or after July 1, 2009.

Am. Jur.2d. See 6 Am. Jur.2d, Assault and Battery, §§ 34-38.

C.J.S. See 6A C.J.S., Assault and Battery, §§ 73, 74, 78-82, 91-94.

Annotator's note. Since § 18-3-204 is similar to former § 40-2-35, C.R.S. 1963, relevant cases construing that provision have been included in the annotations to this section.

Essential elements of assault are an unlawful attempt to commit a violent injury and the present ability to commit a violent injury, and these elements must be shown to have existed at the time in order to sustain a charge of assault. People v. Cardwell, 181 Colo. 421, 510 P.2d 317 (1973).

Assault is an unlawful attempt coupled with a present ability to commit a violent injury on the person of another. Sims v. People, 177 Colo. 229, 493 P.2d 365 (1972).

Conduct which creates substantial risk of serious bodily injury not element of offense. The establishment of every element of third degree assault would not necessarily include proving conduct which creates a substantial risk of serious bodily injury, an element of reckless endangerment. Third degree assault requires proof of bodily injury but not proof of a substantial risk of serious bodily injury. Therefore reckless endangerment is not a lesser included offense of third degree assault. People v. Berner, 42 Colo. App. 520, 600 P.2d 112 (1979).

Separate blows in single criminal transaction are single offense. Where two blows were delivered to the same person within a short period of time as part of a continuous harangue to extract information, these two blows were not separate transactions but were part of a single criminal transaction arising from a single impulse. Therefore it was error to charge and convict defendant twice for the same transaction. People v. Berner, 42 Colo. App. 520, 600 P.2d 112 (1979).

Offense of assault and battery is a matter of mixed state and local concern. City of Aurora v. Martin, 181 Colo. 72, 507 P.2d 868 (1973).

It is no defense to show that the specific intent was directed at someone else other than the victim. People v. Tafoya, 179 Colo. 438, 501 P.2d 118 (1972).

Mental impairment evidence admissible to negate mens rea. Opinion evidence of a mental impairment due to a mental disease or defect may be admitted to negate the mens rea for a nonspecific intent crime such as assault in the third degree. Hendershott v. People, 653 P.2d 385 (Colo. 1982), cert. denied, 459 U.S. 1225, 103 S. Ct. 1232, 75 L. Ed.2d 466 (1983).

Evidence sufficient to show specific intent. People v. Tafoya, 179 Colo. 438, 501 P.2d 118 (1972).

Bodily injury need not be of a crippling or otherwise incapacitating nature to be within the statutory prohibition. People v. Lobato, 187 Colo. 285, 530 P.2d 493 (1975).

BB gun can be a deadly weapon. Testimony that if a person hit with a BB in a vulnerable area of the body, such as the eyes, the BB could cause serious bodily injury was sufficient to prove that the BB gun was a deadly weapon. People in Interest of J.R., 867 P.2d 125 (Colo. App. 1993).

The issue in evaluating whether a device is a deadly weapon is whether, in the manner it was used, the device could have caused death or serious bodily injury. The fact that in this particular case death or serious bodily injury did not occur is irrelevant. People in Interest of J.R., 867 P.2d 125 (Colo. App. 1993).

Third degree assault is a lesser included offense of second degree assault. People v. Thompson, 187 Colo. 252, 529 P.2d 1314 (1975); People v. Annan, 665 P.2d 629 (Colo. App. 1983); People v. Brown, 677 P.2d 406 (Colo. App. 1983); People v. Smith, 682 P.2d 493 (Colo. App. 1983); People v. Howard, 89 P.3d 441 (Colo. App. 2003).

The third degree assault conviction merges into the conviction for second degree assault. People v. Howard, 89 P.3d 441 (Colo. App. 2003).

And only difference between second and third degree assault is degree of injury. People v. Thompson, 187 Colo. 252, 529 P.2d 1314 (1975); People v. Brown, 677 P.2d 406 (Colo. App. 1983).

Third degree assault is distinguishable from second degree assault on a peace officer, as described in § 18-3-203, and resisting arrest, as described in § 18-8-103, and therefore these sections do not violate equal protection. This section and § 18-8-103 require that the defendant act knowingly, whereas § 18-3-203 requires that the defendant act intentionally. Further, § 18-3-203 requires proof that the defendant intended to prevent a police officer from performing a lawful duty, which is not required for a conviction under this section. People v. Whatley, 10 P.3d 668 (Colo. App. 2000).

Proper to submit different degrees of assault to jury. Where the trial judge submitted to the jury not only the offense of assault with a deadly weapon, but also simple assault as a lesser included offense, this was not error. Plainly, an instruction on general intent was necessary for simple assault, and it was also necessary for the court to instruct on specific intent for the charge of assault with a deadly weapon. Arellano v. People, 174 Colo. 456, 484 P.2d 801 (1971).

Because two counts of second degree assault were premised on identical evidence, once the trial court concluded that the evidence was sufficient to submit an instruction regarding third degree assault as a lesser included offense to count one, it was obligated to make the same conclusion with respect to the defendant's request for a lesser nonincluded instruction as to count two. People v. Castro, 952 P.2d 762 (Colo. App. 1998).

Defendant's prior conviction of assault did not bar his subsequent conviction of sexual assault, as offenses had distinct elements that were not subsumed by each other. People v. Williams, 736 P.2d 1229 (Colo. App. 1986).

When there is no doubt on intent, court should deny third degree assault instruction. People v. Gibson, 623 P.2d 391 (Colo. 1981).

Where court instructed jury on third degree assault relating to intentional conduct on lesser-included offense of second degree assault, but refused to instruct on third degree assault relating to criminal negligence, see People v. White, 191 Colo. 353, 553 P.2d 68 (1976).

Third degree assault not included in robbery. Third degree assault requires proof of bodily injury, an element not necessary to culpability under robbery, and therefore, the former offense is not included within the latter. People v. Flores, 39 Colo. App. 556, 575 P.2d 11 (1977).

A misdemeanor conviction under this section for third degree assault involves a crime of violence for purposes of § 4B1.2(a)(2) of the United States Sentencing Guidelines. United States v. Krejcarek, 453 F.3d 1290 (10th Cir. 2006).

Applied in People v. Lobato, 192 Colo. 357, 559 P.2d 224 (1977); People v. Sepeda, 196 Colo. 13, 581 P.2d 723 (1978); People in Interest of C.B., 196 Colo. 362, 585 P.2d 281 (1978); People v. Kreiser, 41 Colo. App. 210, 585 P.2d 301 (1978); People v. Dowdell, 197 Colo. 76, 589 P.2d 948 (1979); People v. Trout, 198 Colo. 98, 596 P.2d 762 (1979); Kreiser v. People, 199 Colo. 20, 604 P.2d 27 (1979); People v. Johnson, 644 P.2d 34 (Colo. App. 1980); Godbold v. Wilson, 518 F. Supp. 1265 (D. Colo. 1981); People v. Francis, 630 P.2d 82 (Colo. 1981); People v. Henry, 631 P.2d 1122 (Colo. 1981); People v. Martinez, 634 P.2d 26 (Colo. 1981); People v. Noble, 635 P.2d 203 (Colo. 1981); People v. Sanchez, 644 P.2d 95 (Colo. App. 1982); People v. Dement, 661 P.2d 675 (Colo. 1983); People v. Gouker, 665 P.2d 113 (Colo. 1983); People v. Reedy, 705 P.2d 1032 (Colo. App. 1985).