Arapahoe County District Court No. 16CR2045 Honorable Andrew
C. Baum, Judge
H. Brauchler, District Attorney, Jacob Edson, Chief Deputy
District Attorney, Centennial, Colorado, for
A. Ring, Colorado State Public Defender, Jessica Sommer,
Deputy State Public Defender, Denver, Colorado, for
1 A prosecutor seeking to charge an accused with felony
strangulation has multiple charging options available under
Colorado criminal statutes.
2 The crime can be charged under the first degree assault
statute, section 18-3-202(1)(g), C.R.S. 2018. To obtain a
conviction under that statute, the prosecution would have to
prove that the accused caused serious bodily injury to the
3 If the prosecution wants to dispense with the requirement
to prove serious bodily injury, it can charge the accused
under the second degree assault statute, section 18-3-203,
C.R.S. 2018. Two charging options are available for a
strangulation crime under that statute, neither of which
would require proof of serious bodily injury: under
subsection (1)(b) or under subsection (1)(i).
4 A charge under subsection (1)(b) would require proof of use
of a deadly weapon. Unless charged with a crime of violence
sentence enhancer, a strangulation charge under subsection
(1)(i) would not require proof of use of a deadly weapon.
5 As we will discuss, the penalty available for a
strangulation charged under subsection (1)(i) if charged as a
crime of violence under section 18-1.3-406(2)(a)(I)(A),
C.R.S. 2018, is substantially more severe than if an accused
is charged merely under subsection (1)(b), even though
conviction for both crimes would require proof of use of a
6 The prosecution charged defendant, Darius Javonmarquise
Slaughter, with strangulation under the second degree assault
statute, section 18-3-203(1)(i). If it were allowed to charge
Slaughter under subsection (1)(i) and also charge a sentence
enhancer under the crime of violence sentencing statute, such
charging would subject him to harsher and disparate
sentencing, as compared with other persons accused of
engaging in the same conduct, based solely on the
prosecution's charging decision. Thus, his right to equal
protection under the Colorado Constitution would be violated.
For that reason, we conclude that the district court did not
err in denying the prosecution's motion to add a charge
under the crime of violence statute, and we affirm the
court's order dismissing the added crime of violence
7 The People filed this interlocutory appeal in accordance
with section 16-12-102(1), C.R.S. 2018, and C.A.R. 4(b)(3).
The prosecution charged Slaughter with second degree assault
by strangulation under section 18-3-203(1)(i) for allegedly
strangling the victim with his hands. The People later moved
to add a new count under the crime of violence sentencing
statute, section 18-1.3-406(2)(a)(I)(A), based on their
assertion that Slaughter used his hands as a deadly weapon.
8 Though the trial court initially granted the motion, it
later reconsidered that ruling on Slaughter's motion and
dismissed the charged sentence enhancer. The court reasoned
that, as applied to Slaughter, such a charge violated his
right to equal protection of the laws guaranteed by the
Constitutional and Statutory Background
9 Under the Fourteenth Amendment to the United States
Constitution, no state shall "deny to any person within
its jurisdiction the equal protection of the laws." U.S.
Const. amend. XIV, § 1.
10 In harmony with the Federal Constitution, our supreme
court has held that the right to equal protection of the laws
is included within due process of law as provided in article
II, section 25, of the Colorado Constitution. People v.
Marcy, 628 P.2d 69, 83 (Colo. 1981). Even so,
distinguishing United States v. Batchelder, 442 U.S.
114 (1979), which construed the Federal Constitution, the
court in Marcy emphasized that, under the Colorado
Constitution, "equal protection of the laws requires
that statutory classifications of crimes be based on
differences that are real in fact and reasonably related to
the general purposes of criminal legislation."
Marcy, 628 P.2d at 74. In this respect, equal
protection under the Colorado Constitution is more
far-reaching than it is under the Federal Constitution.
Slaughter argues an equal protection violation only under the
11 Equal protection of the law assures that those who are
similarly situated will be afforded like treatment.
People v. Mozee, 723 P.2d 117, 126 (Colo. 1986).
When two criminal statutes provide different penalties for
identical conduct, a defendant is denied equal protection
under the law if he is convicted under the harsher statute.
Id. And, "when separate statutes prescribe
different penalties for what ostensibly might be different
acts but offer no intelligent standard for distinguishing
between and among these acts, those statutes deny equal
protection under the law." People v. Griego,
2018 CO 5, ¶ 35 (citing Marcy, 628 P.2d at 75).
12 Under the Colorado Constitution, "if a criminal
statute [provides] different penalties for identical conduct,
a person convicted under the harsher penalty is denied equal
protection unless there are reasonable differences or
distinctions between the proscribed behavior[s]."
People v. Stewart, 55 P.3d 107, 114 (Colo. 2002).
13 In keeping with Colorado's equal protection guarantee,
we scrutinize the statute under which defendant was charged,
as well as the statute under which the prosecution seeks to
charge him and the broader statutory scheme, to determine
whether these standards are met.
Standards of Review and Principles of Statutory Construction
14 We review the constitutionality of statutes de novo.
Colo. Union of Taxpayers Found. v. City of Aspen,
2018 CO 36, ¶ 13. Statutes are presumed constitutional,
id., and a party challenging the constitutionality
of a statute must prove unconstitutionality beyond a
reasonable doubt, TABOR Found. v. Reg'l Transp.
Dist., 2018 CO 29, ¶ 15.
15 We construe defendant's arguments as raising a
challenge to the relevant statutes as applied to the
prosecution's charging decision. To prevail on an
as-applied constitutional challenge, the challenging party
must establish that the statute is unconstitutional under the
circumstances in which the plaintiff has acted or proposes to
act. Qwest Servs. v. Blood, 252 P.3d 1071, 1085
(Colo. 2011). ¶ 16 The interpretation of sections
18-3-203(1)(i) and 18-1.3-406(2)(a)(I)(A) is a question of
law which we review de novo. Cowen v. People, 2018
CO 96, ¶ 11. When interpreting a statute, our primary
purpose is to ascertain and give effect to the General
Assembly's intent. Id. We start by examining the
plain meaning of the statutory language. Id. We give
consistent effect to all parts of the statute and construe
each provision in harmony with the overall statutory design.
Id., ¶ 13.
Disparate Charging Options Available for the Same
Strangulation Conduct Render the Statutory Scheme Ambiguous
17 Before 2016, a prosecutor seeking to charge an accused for
strangulation of a victim could charge under the first degree
assault statute, section 18-3-202. Subsection (1)(a) of that
statute provided, and still provides:
(1) A person commits the crime of assault in the
first degree if: (a) With intent to cause serious bodily
injury to another person, he causes serious bodily injury to