The Colorado Supreme Court announced on Monday that it will take up a case that hinges on whether prosecutors may file two different types of assault charges for the same conduct after the legislature created the distinction four years ago.

Prosecutors charged Dearies Deshonne Austin Lee with multiple assault and child abuse offenses, including two counts of second degree assault pursuant to the strangulation subsection of Colorado’s statutes and a sentence-enhancing charge for a crime of violence. Around this time, the Colorado Court of Appeals decided in a different case that because second-degree strangulation charges carried a lower maximum penalty than assault charged under the deadly weapon subsection, the prosecution’s attempt to enhance the strangulation sentence violated the defendant’s right to equal protection under the law. 

Lee, who was also facing second-degree assault charges under the deadly weapon subsection, moved to dismiss those as well as the sentence-enhancing charge in light of the appellate decision. The trial court agreed, noting that Lee would merit a higher maximum penalty in this instance than under the strangulation subsection.

The prosecution appealed, prompting another Court of Appeals panel to clarify that a defendant cannot be charged under both subsections for the same crime because it ran contrary to legislative intent and also violated his equal protection rights.

Appellate Judge Rebecca R. Freyre noted that prior to 2016, strangulation that caused bodily injury was a crime that required prosecutors to show that the defendant’s hands were a deadly weapon. Prosecutors ran into difficulty with that mandate, and tended to pursue verdicts for misdemeanor assault charges instead.

However, that year the General Assembly enacted two changes. First, anyone convicted of assault with a deadly weapon would receive a sentence of five to 16 years of prison, probation or community corrections. Second, legislators created a separate subsection for strangulation that did not require demonstration of hands as a deadly weapon. The sentence prescribed was two to eight years, and the offense was taken out of the category of crime of violence.

“According to the bill’s proponents, the legislation was intended to unify and elevate all forms of strangulation resulting in bodily injury to a felony in order to more consistently punish this type of behavior, which is particularly prevalent in domestic violence situations,” wrote Freyre. She concluded that by raising strangulation to a felony, lawmakers intended to solve the problem that the deadly weapon subsection presented, not to complement the subsection.

The court found that it is permissible for prosecutors to file multiple charges for the same conduct. However, the deadly weapon subsection encompassed a “range of unspecified conduct,” and the General Assembly clearly defined the parameters of a strangulation assault charge.

Colorado laws against “identical conduct and carrying disparate penalties violate equal protection,” Freyre wrote, “unless there are reasonable distinctions in the proscribed conduct.” Consequently, the Court of Appeals upheld the dismissal of charges in Lee’s case.

The case is The People of the State of Colorado v. Dearies Deshonne Austin Lee.