Colorado’s second-highest court clarified last month that victims qualify as “at-risk” under state law if they required mechanical assistance to breathe on the date of the offense against them.

El Paso County prosecutors charged Jon Claude Crow with third-degree assault, which is ordinarily a misdemeanor. It becomes a felony if the assault is on an “at-risk” adult. Among other things, a person is at-risk if they are “unable to breathe without mechanical assistance.”

Crow contended that the law envisions a victim’s breathing disability is permanent, or at least present on the date of the offense, for a person to qualify as at-risk.

In the underlying case, the victim used supplemental oxygen through a nasal cannula due to her emphysema. When police responded to her home after receiving a report that Crow had hit her and damaged her ribs, an officer noticed the victim was wearing a “very long cord that ran all the way through the house.”

However, on the witness stand, the victim denied using supplemental oxygen on the date of the offense.

Appealing his conviction, Crow only contested whether the victim was at-risk under the parameters of state law. The victim’s denial that she used oxygen on the date of the assault, he argued, meant she was not “unable to breathe without mechanical assistance.”

“That language suggests that it applies to a person who cannot breathe at all without the assistance of a machine. For example, a person on a ventilator,” public defender Christina Van Wagenen told a three-judge Court of Appeals panel during oral arguments. “I don’t think the presence of the device is enough to show that it was there and being used during the assault.”

The prosecution countered that, even if the victim was not using supplemental oxygen at the time of the assault, she still had a permanent disability requiring mechanical breathing assistance.

“Is it your position, then, that it doesn’t make any difference whether (the victim) was actually using oxygen at the time she was apparently hit by Mr. Crow?” asked Judge Daniel M. Taubman.

“Correct,” said Assistant Attorney General Josiah Beamish. “If her medical needs were that I need oxygen Monday, Wednesday, and Friday but not on Tuesday or Thursday, and Mr. Crow decided to assault her on a Tuesday, that does not make her all of a sudden a person without a disability, just because he timed his assault properly.”

The appellate panel concluded that a victim’s breathing disability need not be permanent, but they must require mechanical assistance at the time of the offense against them.

Judge Pax L. Moultrie, in the panel’s June 25 opinion, wrote that there was sufficient evidence for jurors to find the victim was using supplemental oxygen. Specifically, the long cord ensured she could use oxygen throughout the home, and jurors saw her on oxygen while testifying.

That evidence “could have allowed the jury to reasonably infer that her oxygen use wasn’t limited to infrequent episodes of shortness of breath that weren’t present when the assault occurred,” Moultrie wrote.

She acknowledged that the victim denied using oxygen at the time of the assault, but the victim had also denied needing oxygen on the day she called police. Body-worn camera footage contradicted that statement.

The jury “was free to — and evidently did — find this portion of the victim’s testimony not credible,” Moultrie wrote.

By 2-1, the panel also agreed that the definition of “reasonable doubt” provided to jurors was proper, with Moultrie and Judge Steve Bernard upholding Crow’s conviction. Taubman, reiterating a view he has expressed in other opinions, believed a portion of the reasonable doubt instruction unconstitutionally lowered the prosecution’s burden of proof. He would have ordered a new trial for Crow.

The case is People v. Crow.