Colorado Revised (C.R.S.) (2016)
Title 18. Criminal Code
ARTICLE 1. PROVISIONS APPLICABLE TO OFFENSES GENERALLY
PART 5. PRINCIPLES OF CRIMINAL CULPABILITY
The following definitions are applicable to the determination of culpability requirements for offenses defined in this code:
(1) “Act” means a bodily movement, and includes words and possession of property.
(2) “Conduct” means an act or omission and its accompanying state of mind or, where relevant, a series of acts or omissions.
(3) “Criminal negligence”. A person acts with criminal negligence when, through a gross deviation from the standard of care that a reasonable person would exercise, he fails to perceive a substantial and unjustifiable risk that a result will occur or that a circumstance exists.
(4) “Culpable mental state” means intentionally, or with intent, or knowingly, or willfully, or recklessly, or with criminal negligence, as these terms are defined in this section.
(5) “Intentionally” or “with intent”. All offenses defined in this code in which the mental culpability requirement is expressed as “intentionally” or “with intent” are declared to be specific intent offenses. A person acts “intentionally” or “with intent” when his conscious objective is to cause the specific result proscribed by the statute defining the offense. It is immaterial to the issue of specific intent whether or not the result actually occurred.
(6) “Knowingly” or “willfully”. All offenses defined in this code in which the mental culpability requirement is expressed as “knowingly” or “willfully” are declared to be general intent crimes. A person acts “knowingly” or “willfully” with respect to conduct or to a circumstance described by a statute defining an offense when he is aware that his conduct is of such nature or that such circumstance exists. A person acts “knowingly” or “willfully”, with respect to a result of his conduct, when he is aware that his conduct is practically certain to cause the result.
(7) “Omission” means a failure to perform an act as to which a duty of performance is imposed by law.
(8) “Recklessly”. A person acts recklessly when he consciously disregards a substantial and unjustifiable risk that a result will occur or that a circumstance exists.
(9) “Voluntary act” means an act performed consciously as a result of effort or determination, and includes the possession of property if the actor was aware of his physical possession or control thereof for a sufficient period to have been able to terminate it.
HISTORY: Source: L. 71: R&RE, p. 403, § 1. C.R.S. 1963: § 40-1-601.L. 75: (3), (5), (6), and (8) R&RE, p. 616, § 1, effective July 21.L. 77: (4) amended and (5) and (6) R&RE, p. 959, § § 1, 2, effective July 1.
Editor’s note: This title was numbered as chapter 40, C.R.S. 1963. The substantive provisions of this title were repealed and reenacted in 1971, resulting in the addition, relocation, and elimination of sections as well as subject matter. For amendments to this title prior to 1971, consult the Colorado statutory research explanatory note beginning on page vii in the front of this volume. For a detailed comparison of this title, see the comparative tables located in the back of the index.
Law reviews: For article, “Criminal Law”, which discusses Tenth Circuit decisions relating to criminal law, see 61 Den. L.J. 255 (1984); for article, “Criminal Law”, which discusses Tenth Circuit decisions dealing with criminal law, see 62 Den. U. L. Rev. 125 (1985); for a discussion of Tenth Circuit decisions dealing with criminal law, see 66 Den. U. L. Rev. 711 (1989) and 67 Den. U. L. Rev. 691 (1990); for article, “Felony Sentencing in Colorado”, see 18 Colo. Law. 1689 (1989); for article, “1990 Criminal Law Legislative Update”, see 19 Colo. Law. 2049 (1990).
Law reviews: For article, “Pronouncements of the U.S. Supreme Court Relating to the Criminal Law Field: 1985-1986”, which discusses a case relating to erroneous malice presumption, see 15 Colo. Law. 1616 (1986).
Law reviews. For comment on Trujillo v. People (133 Colo. 186, 292 P.2d 980 (1956)), see 28 Rocky Mt. L. Rev. 409 (1956), For article, “Homicides Under the Colorado Criminal Code”, see 49 Den. L.J. 137 (1972). For article, “Mens Rea and the Colorado Criminal Code”, see 52 U. Colo. L. Rev. 167 (1981).
Annotator’s note. Since § 18-1-501 (1) is similar to former § 40-1-2, C.R.S. 1963, and laws antecedent thereto, relevant cases construing those provisions have been included in the annotations to this section.
General assembly may establish statutory constituents of criminal culpability. The constitutional mandate requiring the prosecution to establish all essential elements of a crime beyond a reasonable doubt does not impair the general assembly’s competence to establish the statutory constituents of criminal culpability for various offenses and to formulate particular rules of justification or excuse for acts that otherwise might be criminally punishable. People v. Ledman, 622 P.2d 534 (Colo. 1981).
Section 18-1-803 does not require evidence of any psychiatric abnormality or independent testimony to analyze the effect of a blow on the defendant’s mental state. This effect may be inferred from the evidence present. People v. Delaney, 44 Colo. App. 366, 620 P.2d 44 (1980).
Instruction on mental condition required if any evidence tends to establish impairment. An instruction on impaired mental condition is required if there is any evidence tending to establish that a blow to the defendant’s head impaired his mental condition sufficiently to preclude formation of a conscious objective to cause the victim’s death. People v. Delaney, 44 Colo. App. 366, 620 P.2d 44 (1980).
The narcotics act is not governed by the definitions in the criminal code. People v. Quick, 190 Colo. 171, 544 P.2d 629 (1976).
“Criminal negligence”, as applied to homicide, means a failure to perceive, through a gross deviation from the standard of reasonable care, a substantial and unjustifiable risk that death will result from certain conduct. People v. Taggart, 621 P.2d 1375 (Colo. 1981).
Intent is an act or purpose of the mind rarely discoverable except by the acts of the person committing them; consequently, acts which tend to prove a specific intent are direct evidence of that intent. Wechter v. People, 53 Colo. 89, 124 P. 183 (1912).
Circumstances attending an act give character to it, inasmuch as they evince the intention of the actor at the time of the act. Usually, the proof of a homicide will disclose the circumstances attending it, and the character of the crime is demonstrated by the same evidence which establishes it. Hill v. People, 1 Colo. 436 (1872).
Intention to commit an offense is manifested by circumstances attendant upon the commission of the offense. Arridy v. People, 103 Colo. 29, 82 P.2d 757 (1938).
Intent may be shown by inference from all the surrounding circumstances, if they are sufficient to prove this element beyond a reasonable doubt. However, if the circumstances themselves are insufficient or if the defendant feels required to rebut facts or inferences from other evidence adduced at trial detrimental to his position, it is axiomatic that, this being material, his offer should be allowed in as evidence. Gallegos v. People, 159 Colo. 379, 411 P.2d 956 (1966).
The mind of an alleged offender may be read from his acts, his conduct, and the reasonable inferences which may be drawn from the circumstances of the case. Maraggos v. People, 175 Colo. 130, 486 P.2d 1 (1971).
Intent is a state of mind existing at the time a person commits an offense; however, that intent is not required to be proven by direct substantive evidence, for to do so would make it impossible to convict in any case where there was not a culmination of the intent. Maraggos v. People, 175 Colo. 130, 486 P.2d 1 (1971).
Intent is a question of fact, provable like any other fact in issue in a criminal case. Wechter v. People, 53 Colo. 89, 124 P. 183 (1912).
Instructions on specific intent phrased in language of this section are proper and will be upheld by the supreme court. Blincoe v. People, 178 Colo. 34, 494 P.2d 1285 (1972).
Instruction defining “intentionally” properly refused. Where defense requested instruction defining “intentionally” in terms of new statute which became effective July 1, 1972, but offense had occurred prior to that time, trial court did not err in refusing such request. People v. Crawford, 191 Colo. 504, 553 P.2d 827 (1976).
Defendant cannot avoid his conviction of criminally negligent homicide on the ground that he did not intend death to result from his act. People v. Palumbo, 192 Colo. 7, 555 P.2d 521 (1976).
“Knowingly.” The definition of “knowingly” in subsection (6) is an accurate expression of the common-law understanding of “knowingly”. City of Englewood v. Hammes, 671 P.2d 947 (Colo. 1983).
The definition of “knowingly” or “willfully” in subsection (6) applied in People v. Riley, 708 P.2d 1359 (Colo. 1985); People v. Eastepp, 884 P.2d 305 (Colo. 1994); People v. Parga, 964 P.2d 571 (Colo. App. 1998).
A person may be found to act “intentionally” even though the length of time for deliberation is not long. People v. Valenzuela, 825 P.2d 1015 (Colo. App. 1991), aff’d, 856 P.2d 805 (Colo. 1993).
A person acts intentionally if the person’s “conscious objective” is to cause the specific result prohibited by statute. People v. Moore, 877 P.2d 840 (Colo. 1994); People v. District Ct., 17th Jud. Dist., 926 P.2d 567 (Colo. 1996); People v. Madison, 176 P.3d 793 (Colo. App. 2007).
Phrase “reasonably should be aware” is not the equivalent of “knowingly”. People v. Etchells, 646 P.2d 950 (Colo. App. 1982); Espinoza v. People, 712 P.2d 476 (Colo. 1985).
Menacing is a general intent crime requiring only that the defendant be aware that the defendant’s conduct is practically certain to cause the result. People v. Zieg, 841 P.2d 342 (Colo. App. 1992).
Omission of conduct-and-circumstance factor from instruction on “knowingly” held not error. No substantial rights of the defendant are seriously affected by the omission of the conduct-and-circumstance factor of the mental culpability requirement of “knowingly” from the instructions, as provided in subsection (6), where the instruction given refers to both conduct and result. If one is aware that his conduct will achieve a certain result, then of necessity he must also be aware of that conduct. People v. Clark, 662 P.2d 1100 (Colo. App. 1982).
A mental culpability instruction defining “knowingly” as an awareness by the defendant that his conduct is “practically certain to cause the result” would necessarily require the jury to be satisfied beyond a reasonable doubt that he also was aware that “his conduct is of such nature” and that “the circumstance exists” before he could be found guilty of these offenses. Although such an instruction is technically incomplete, the trial court’s failure to instruct the jury on the conduct and circumstance components of “knowingly” is not plain error because the substantial rights of the defendant are not affected. People v. Derrerra, 667 P.2d 1363 (Colo. 1983).
“Knowingly” instruction which is equivalent to negligence is error. Where the court’s definition of “knowingly” permits a finding, not on the defendant’s guilty knowledge, but rather on a basis that amounts to a negligence standard, that instruction is fundamentally flawed. People v. Freeman, 668 P.2d 1371 (Colo. 1983).
Where an instruction permits the jury to find that the defendant acted intentionally on the basis of his actions alone, rather than on the precise “conscious objective” standard required by statute, the instruction is erroneous. People v. Freeman, 668 P.2d 1371 (Colo. 1983).
Evidence of mental slowness may be offered to negate the culpable mental state for the crime charged. People v. Vanrees, 125 P.3d 403 (Colo. 2005).
Offenses requiring knowledge as the culpable mental state are not specific intent crimes. People v. Ledman, 622 P.2d 534 (Colo. 1981).
No requirement that “knowing conduct” be directed against person killed. There is no requirement that the “knowing conduct” essential to extreme indifference murder and second-degree murder be directed against the person actually killed. On the contrary, both offenses are general intent crimes, and as long as the offender knowingly acts in the proscribed manner and causes the death of another, he is guilty of the crime, even though the person killed is not the person against whom the criminal conduct was directed. People v. Marcy, 628 P.2d 69 (Colo. 1981).
Willful and ordinary negligence distinguished. The demarcation between ordinary negligence and willful and wanton disregard is that in the latter the actor was fully aware of the danger and should have realized its probable consequences, yet deliberately avoided all precaution to prevent disaster. A failure to act in prevention of accident is but simple negligence; a mentally active restraint from such action is willful. Omitting to weigh consequences is simple negligence; refusing to weigh them is willful. Trujillo v. People, 133 Colo. 186, 292 P.2d 980 (1956).
Before defendant could be convicted of manslaughter under former provisions, there must have been evidence tending to prove he recklessly and wantonly failed to exercise the care and caution that a reasonably prudent person would have exercised under similar circumstances, and that his conduct was such as to indicate a reckless and wanton disregard for the safety of others. Ordinary or simple negligence was not sufficient to sustain the former charge of involuntary manslaughter. Bennett v. People, 155 Colo. 101, 392 P.2d 657 (1964).
“Recklessly” and “criminally negligent” distinguished. The difference between acting “recklessly” and being “criminally negligent” is the distinction between becoming aware of a risk yet consciously choosing to disregard it as opposed to negligently failing to become aware of the risk. People v. Bettis, 43 Colo. App. 104, 602 P.2d 877 (1979).
Instruction defining “recklessly” properly refused where it contained the term “accidentally”. People v. Bookman, 646 P.2d 924 (Colo. 1982).
Instruction defining “recklessly” pursuant to this section, rather than defining “reckless driving” under § 42-4-1401, was properly given as to an element of the offense of vehicular homicide involving reckless driving. The definition of “recklessly” in subsection (8) is contained in the criminal code and is plainly intended to be used in interpreting other statutory sections, such as vehicular homicide, within the criminal code. People v. Scarlett, 985 P.2d 36 (Colo. App. 1998).
“Recklessly” in second degree assault requires that a defendant consciously disregard a substantial and unjustifiable risk that a result will occur (or that a circumstance exists), not that a defendant disregard the result that ultimately occurs. Therefore, the People did not have to prove that defendant had knowledge of the existence of the specific deadly weapon held by the victim of the assault. People v. Brown, 677 P.2d 406 (Colo. App. 1983).
Conspiracy to commit reckless manslaughter is not a crime in Colorado. Palmer v. People, 964 P.2d 524 (Colo. 1998).
Finding of knowing or willful conduct sufficient for recklessness. A finding of knowing or willful conduct is sufficient to establish the culpable mental state of recklessness. People v. Yanaga, 635 P.2d 925 (Colo. App. 1981); People v. Howard, 215 P.3d 1134 (Colo. App. 2008).
To determine whether a risk is substantial and unjustified, trier of fact must weigh the likelihood and potential magnitude of harm presented by the conduct and consider whether the conduct constitutes a gross deviation from the reasonable standard of care. People v. Hall, 999 P.2d 207 (Colo. 2000).
The phrase “starts or maintains a fire” in § 18-4-105 must be read in accordance with subsection (9) and § 18-1-502. People v. Garcia, 189 Colo. 347, 541 P.2d 687 (1975).
Intoxication provision applicable in analysis of “voluntary act”. Section 18-1-804 applies not only to the mental state of a defendant in general intent crimes but is also applicable in the analysis of a “voluntary act”, as that phrase is used in the definition of “criminal liability” in § 18-1-502. People v. Huskey, 624 P.2d 899 (Colo. App. 1980).
Different culpable mental states may exist simultaneously. People v. Noble, 635 P.2d 203 (Colo. 1981); People v. People v. Howard, 215 P.3d 1134 (Colo. App. 2008).
For discussion of culpable mental state required for conviction of criminal attempt, see People v. Krovarz, 697 P.2d 378 (Colo. 1985).
Applied in McPhee v. People, 105 Colo. 539, 100 P.2d 148 (1940); Gallegos v. Tinsley, 139 Colo. 157, 337 P.2d 386 (1959); Mora v. People, 172 Colo. 261, 472 P.2d 142 (1970); People v. District Court, 185 Colo. 78, 521 P.2d 1254 (1974); People v. White, 191 Colo. 353, 553 P.2d 68 (1976); People v. Sexton, 192 Colo. 181, 555 P.2d 1151 (1976); People v. Cornelison, 192 Colo. 337, 559 P.2d 1102 (1977); People v. Washburn, 197 Colo. 419, 593 P.2d 962 (1979); People v. Vigil, 43 Colo. App. 121, 602 P.2d 884 (1979); People v. Gallegos, 628 P.2d 999 (Colo. 1981); People v. Frysig, 628 P.2d 1004 (Colo. 1981); People v. Andrews, 632 P.2d 1012 (Colo. 1981); People v. Brown, 632 P.2d 1025 (Colo. 1981); People v. Christian, 632 P.2d 1031 (Colo. 1981); People v. Noble, 635 P.2d 203 (Colo. 1981); Bollier v. People, 635 P.2d 543 (Colo. 1981); People v. R.V., 635 P.2d 892 (Colo. 1981); People v. Morgan, 637 P.2d 338 (Colo. 1981); People v. Padilla, 638 P.2d 15 (Colo. 1981); People v. Madson, 638 P.2d 18 (Colo. 1981); People v. Mack, 638 P.2d 257 (Colo. 1981); People v. Thatcher, 638 P.2d 760 (Colo. 1981); People v. Founds, 631 P.2d 1166 (Colo. App. 1981); People v. Shaw, 646 P.2d 375 (Colo. 1982); 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); People v. Bartowsheski, 661 P.2d 235 (Colo. 1983); People v. Giles, 662 P.2d 1073 (Colo. 1983); People v. Heller, 698 P.2d 1357 (Colo. App. 1984), rev’d on other grounds, 712 P.2d 1023 (Colo. 1986); People v. Lybarger, 700 P.2d 910 (Colo. 1985); People v. Breland, 728 P.2d 763 (Colo. App. 1986); People v. Bowman, 738 P.2d 387 (Colo. App. 1987); People v. District Court, 779 P.2d 385 (Colo. 1989).