A Comprehensive Guide to Understanding Colorado's Second Degree Assault - Strangulation Law 18-3-203

By H. Michael Steinberg Colorado Criminal Defense Lawyer

To understand a how a crime is proven in court, the first step is to break down that crime into each of its components, or "elements," which are the essential requirements that must be proven beyond a reasonable doubt in a Colorado court of law before one can be convicted of that crime.

Title 18-3-203(I) of the Colorado Criminal Code defines strangulation as one type of Assault in the Second Degree:

The elements of the Colorado Crime of Assault in the Second Degree are that the person charged..

1. with intent to cause bodily injury,
2. applies sufficient pressure to impede or restrict breathing or circulation of the blood of another person and,
3. by applying such pressure to the neck or by blocking the nose or mouth of the other person,
4. thereby causes bodily injury.

Second Degree Assault by "strangulation" is a relatively new law in Colorado. Colorado is one of the last states (now at 48) to create a separate law defining the "crime of strangulation." The creation of the new law reflects difficulties of proving a felony where the victim alleges that they have been "strangled."

In many cases where strangulation is alleged, there is very little forensic evidence, such as a visible injury, to corroborate what the alleged victim commonly calls a "choking" incident, but what criminal law will term "strangulation."

Proving the act of strangulation has been shown to be problematic for the District Attorney assigned the task because of the lack of physical evidence on the body of the alleged victim.

Some terms need clarification. While many alleged victims of strangulation may claim to have been strangled, in defending these cases one finds that after a thorough review of the actual science behind an act of attempted strangulation, the science does not often comport with the allegation.

I. Towards a Clinical Understanding of Strangulation - Choking vs. Strangulation

Choking: choking is not strangulation. Choking is an internal obstruction of the airway.

Strangulation: strangulation is a form of asphyxia which is characterized by closure of the blood vessels and air passages of the neck as a result of external pressure on the neck.

Strangulation is formally defined as "asphyxia" or a lack of oxygen caused by the closure of blood vessels and air passages in the neck, resulting from external pressure. While even law enforcement commonly refer to strangulation as "choking," the latter condition involves an internal blocking of the windpipe by an object, such as a piece of food. The difference is whether the blockage of the airway is coming from the inside of the trachea (choking) or from pressure being applied outside of the neck (strangulation).

II. Understanding the Four Basic Types of Strangulation

I. Manual strangulation - this is the most common form of strangulation typically seen in court cases and is normally accomplished with one or two hands. The different ways of manually strangling a person are commonly:

• A. The one handed frontal approach.
• B. The two handed frontal approach.
• C. The two handed approach from the rear.
• D. Compressing the larynx with two thumbs.
• E. Applying pressure to neck with one’s elbow or forearm, or other limb.

II. Forearms and kneeling on a person's neck - still a form of manual strangulation, but done with a different part of the body (consider the George Floyd case where this kind of strangulation ended in his death at the hands of the police).

III. Hanging - not addressed in this article. Typically seen only in suicide deaths.

IV. Strangulation by Ligature - strangulation accomplished through the use of a tool, such as a constricting band that is tightened by force other than that of the body weight. Ligatures can include belts, ropes, electrical cords, bedding and clothing. Softer ligatures are much less likely to leave a mark on the neck. The softer the ligature item the less likely it will leave marks on the neck.

There is no question that the act of true strangulation is extremely dangerous. Understanding a true attempt at strangulation acknowledges that death or permanent impairment can occur within minutes. When the brain is deprived of oxygenated blood and the body is deprived of de-oxygenated blood, it is not only painful, but will ultimately lead to unconsciousness and subsequent death. Death from strangulation injuries can also occur days later.

A victim of an act of strangulation will lose consciousness as a result of one or all of the following:

• I. Blocking of the carotid arteries.
• II. Depriving the brain of oxygen.
• III. Blocking of the jugular veins.

Closing off the airway causes the victim of strangulation to be unable to breathe.
The "airway" includes the hyoid bond, thyroid cartilage, and tracheal rings.

Diagram of the neck:

The Analysis of Strangulation Cases Begins with the "Mechanism of Injury"- Pounds of Pressure

I. The Most Common Occlusion - The Carotid Arteries

Occlusion of the carotid artery is the most common form of strangulation and requires an amount of pressure equal to 11 lbs. of pressure for 10 seconds. If that pressure is immediately released, consciousness is regained in 10-12 seconds.

II. Jugular Vein Occlusion

The second most common form of strangulation is a jugular vein occlusion, which requires the least amount of pressure - 4.4 lbs. of pressure to occlusion.

III. Tracheal Occlusion

The third most common form of occlusion is tracheal occlusion, which requires the most amount of pressure - 33 lbs. of pressure to occlusion.

Note - If strangulation persists for approximately 2-3 minutes, brain death can occur.

To summarize, it takes 4 pounds of pressure to block the jugular vein, which results in preventing de-oxygenated blood from leaving the brain. It takes 11 pounds of pressure to block the carotid artery, preventing oxygenated blood from reaching the brain. It takes 33 pounds of pressure to block the trachea, which restricts breathing.

For comparison purposes:

• I. It takes 6 pounds of pressure to pull the trigger of a gun.
• II. It takes 20 pounds of pressure to open a can of soda.
• III. The average handshake applies about 80-100 pounds of pressure.

In defending a criminal felony charge of strangulation where the alleged victim is claiming he or she was "strangled," a close examination and understanding of the police and medical reports is necessary for an effective and thorough cross examination of the alleged victim at trial.

This kind of preparation requires thorough knowledge of the science of strangulation and what evidence, if any, was present or, sometimes more importantly, what evidence is missing from the state’s case.

Put differently, ANY analysis of the state’s cases begins with (sometimes with the assistance of an expert) understanding precisely whether the government has a case for strangulation versus a weakly supported claim, or even a totally fraudulent allegation of strangulation.

For example, if the police arrive to the scene of an alleged "strangulation," and the victim is simply standing there, speaking freely to the police without difficulty and has no visible injuries, serious questions are raised that should be immediately obvious to law enforcement and seized upon by the defense to attack the case.

To that end, the balance of this article addresses the critical need for a Colorado criminal defense lawyer have more than just a basic understanding of strangulation. The lawyer needs to have comprehensive knowledge of the expected internal and external signs and symptoms of a victim who has allegedly been strangled.

After allegedly being strangled, a putative victim should experience painful symptoms such as difficulty breathing or lightheadedness. He or she should have objective and subjective symptoms that are consistent with the allegation of having been strangled.

Defending Against a Charge of Strangulation - Understanding the Objective Symptoms of the Act of Strangulation

If the alleged victim fails to inform law enforcement officials of any of the expected objective and subjective symptoms (as described below) or declines medical attention, serious questions should arise in the minds of the law enforcement "team" that constructs the "case"- the 911 dispatchers, the emergency room and medical personnel, law enforcement (investigating officers), prosecutors, and even the assigned judge.

The alleged victim’s story should be consistent. If it is not, a thorough investigation should attempt to reveal a motive behind the false allegations.

Important information to consider: did the police, EMT’s, emergency room personnel,and all others involved obtain specific, detailed descriptions and document exactly

• (1) how the victim says she/he was strangled;
• (2) the mechanism for the assault (hands, cord, forearms, legs) and,
• (3) detail any physical evidence of strangulation such as the symptoms and signs of strangulation (below)?

Respiratory Changes: someone who has experienced strangulation will often have one or more of the following respiratory symptoms:

• I. Breathing Difficulties
• II. Lung damage
• III. Coughing up Blood (hemoptysis)
• IV. Voice Changes (Raspy Voice)

Visible Injuries: someone who has experienced strangulation will sometimes have visible, physical manifestations of the attack including marks on/to:

The Face: petechia (pronounced peh-tee-kee-ii) can be present throughout the face (petechia are the rupturing of capillaries, the smallest blood vessels in the body). These manifest as tiny red dots that occur above the area of constriction. Generally, the more petechiae present, the greater the struggle. The presence of petechia indicates repeated occlusions and releases of pressure.

Petechia is a common symptom resulting from strangulation, but the police may confuse petechia with pink eye or an indication of drug use.

The Neck: someone who has been strangled likely has internal injuries to the neck. Generally, a professional medical assessment will be required to detect internal injuries.

Internal Bleeding: May include, but are not limited to:

• - Laryngeal Fracture
• - Hyoid Bond Fracture.
• - Thyroid Fracture.
• - Also, swelling (due to internal bleeding).

The Eyes: Sub-Conjunctival Hemorrhages may occur (the appearance of a pink/red color in the eyes - occurs when the capillaries rupture in the white portion of a strangulation victim's eyes).
Petechia can and should also be present in the eyes - the most common evidence of strangulation.

Neurological Changes: May include, but are not limited to:

• - Loss of Consciousness
• - Seizures
• - Memory loss
• - Psychosis

Other Injuries: May include, but are not limited to:

• - Red marks, bruises, scratches, and ligature marks.
• - Head contusions.
• - Injuries on chin.
• - Injuries on the back.
• - Self-defensive injuries on the alleged perpetrator.

Defending Against a Charge of Strangulation - Understanding the Subjective Symptoms of the Act of Strangulation

Voice Changes: May include:

• - Difficulty swallowing.
• - Breathing difficulties.
• - Difficulty speaking audibly (quieter voice).
• - A "raspy" tone of voice.

Mental Status Changes: May include:

• - Memory loss (amnesia).
• - Psychosis.
• - Restlessness.

Suspect's Injuries: A majority of defendants accused of strangulation also exhibit injuries from the attack. Law enforcement and medical personnel should check the suspected abuser for defensive wounds. The absence of such evidence may confirm there was no attempt at strangulation. Defensive wounds on the defendant can include:

• - Scratches.
• - Bite marks.
• - Other injuries.

Evidence-Based Defenses to the Prosecution of Colorado Domestic Violence Strangulation Cases

Evidence-based prosecution in domestic violence strangulation cases is the process of using independent corroborative evidence to prove elements of a crime without relying on the alleged victim’s testimony.

Evidence-based investigation requires law enforcement officials and prosecutors to treat the case as if there was no victim.

Typically, there are five types of evidence collected at the scene of a domestic violence incident (and also supplemented through other means), which law enforcement officers will attempt to use to prove their case. These types of evidence can be used to effectively to prosecute an abuser who strangles his/her victim.

The five types of evidence are:

1. 911 phone call recording(s), and possible witnesses at the scene,
2. Photographs of the victim, the scene, and the suspect,
3. Any physical evidence collected at the scene,
4. Medical examination and evaluation reports, and
5. The use of expert testimony to try to pull together all of the other case evidence.

Basic "Defense-Based" Investigative Questions that Should be Pursued in Colorado Strangulation Cases by Defense Lawyers

In light of the information above, an experienced criminal defense lawyer should ask the following critical questions as they review a case of alleged strangulation:

1. Were there any injuries behind the ears, around the face, neck, scalp, chin, inside the mouth, jaw, on the eyelids, shoulders, or chest area?
2. Is there bruising around the neck, mouth, and chest or behind the ears, a swollen tongue or swelling on the face?
3. Is there redness, abrasions, bruises, scratch marks, scrapes, fingernail marks, thumb-print bruising, ligature marks, petechiae on the eyeball, eyelid, face, scalp, and ears, blood in the white of the eye, swelling, and/or lumps on the neck?
4. Are there sub-conjunctival hemorrhages (broken blood vessels in the eye)?
5. If the alleged victim is wearing makeup, after the makeup is removed, are there any visible injuries that were hidden by the makeup?
6. Is there swelling on the neck? Is there any difficulty swallowing, a loss of memory,
7. nausea, extremity weakness, or difficulty breathing, and loss of sensation? (Hoarseness, occurs in up to 50-percent of strangulation victims, is often attributed to screaming during an argument). If the victim is not hoarse - why not?
8. Are there any expected defensive scratches (from where the victim was trying to remove their batterer's hands from around their neck or face), and stroke-like facial or eyelid drooping?
9. Were there any preexisting injuries? Any recent surgeries?
10. Was there any other corroborating evidence recovered in the room where the alleged victim was strangled?
11. If only a few or none of these signs and symptoms occur, why are the others not present?
12. If none of the expected visible signs and symptoms are present - then the next question should be, "is this alleged strangulation an exaggerated claim by an unstable victim?"

The Police Will Often Conduct Only a Cursory Investigation of Alleged Accusations of Strangulation - the Focus of the Defense Should be on the Evidentiary Lack of Corroboration of the Act of Strangulation

The precise words used by an alleged strangulation victim are critically important when compared to the physical evidence collected from the scene. Always ask what did the alleged victim tell the police?

Inconsistencies in an alleged victim’s account of the act when compared to the physical evidence seized at the scene can determine the outcome of the defendant’s case, especially when the alleged victim has recanted her initial statements.

A thorough defense investigation may reveal a motive behind false allegations. The words an alleged victim uses to describe what happened therefore are critically important to defending these cases.

Was the victim asked open-ended or leading questions? Were ANY of the following key questions asked within the context of the investigation?

Areas that must be closely covered in strangulation cases must should include the following questions:

Defending Against a Colorado Charge of Second Degree Assault- Strangulation

There are several defenses to the Second Degree Assault by Strangulation crime.
Among them are the following:

• I. Self-Defense as against an attack by the alleged victim.
• II. The injuries, if any, were an Unintentional Accident.
• III. The Allegations are False and based upon on ulterior motives to lie.
• IV. The case cannot be proven Beyond a Reasonable Doubt.
• V. Consent to the act may be asserted at trial as an Affirmative Defense - the victim consented to the defendant’s actions (auto-erotica, sex by way of bondage, or "choke holding" during sexual intimacy. If the alleged victim requests aggressive touching or striking by agreement, this is also a complete defense to the charge of strangulation.
• VI. Mutual Violence - a corollary to self defense is a circumstance where the parties are defending themselves from one another - both parties are both engaged in acts of violence.
• VII. No Intentional Touching - Recall the elements of Second Degree Assault include:
  1. with intent to cause bodily injury,
  2. applies sufficient pressure to impede or restrict breathing or circulation of the blood of another person and
  3. by applying such pressure to the neck or by blocking the nose or mouth of the other person,
  4. thereby causes bodily injury.

For a defendant to be convicted of Second Degree Assault - Strangulation, any touching of the alleged victim must specifically be the intended as an act of strangulation. The State must prove that the defendant had the specific intent to strangle the alleged victim. If the touch was not an act intended to actually strangle the victim, it cannot be the felony as described in the law.

The Possible Key Absence of an Expected Piece of Evidence - Petechia

As stated above, petechia is the rupturing of capillaries (small blood vessels near the surface of the skin). Petechia occurs in moments where the jugular vein, which is closest to the surface of the skin, is obstructed, blocked, and therefore the flow of blood is prevented.

The blockage of blood causes capillaries to burst. If there is pressure placed on the neck - petechiae will occur. Pressure placed on a certain part of the victim’s neck that occluded - the jugular or the carotid arteries - SHOULD PRODUCE petechia. The presence of petechia is important to the State in the prosecution of the case and therefore the absence of petechia is equally important to the defense of a case.

Since petechia may be easily missed, the defense should demand a thoroughly detailed examination of the victim. If there are no petechia present on the victim, that alone is strong evidence of innocence and a false allegation of strangulation.

The Need for an Expert to Prove Strangulation

It is not only common, but in most cases necessary, for the prosecution to call a medical expert to substantiate the allegation that an assault was an act of strangulation. This is usually the doctor who examined the victim, a strangulation expert, or other expert such as a Sexual Assault Nurse Examiner (SANE) who is qualified, based on their training and experience, to evaluate and document injuries.

The SANE nurse, or other medical professional, will perform certain forensic tasks for law enforcement to include:

• - Obtaining a medical history.
• - Obtaining an assault history.
• - Obtaining vitals and performing a complete medical assessment.
• - Performing a head-to-toe exam.
• - Documenting all signs and symptoms.
• - Photographing the physical injury.

The District Attorney may also try to call a so-called "domestic violence expert," or law enforcement trained in this area as experts to testify, for example, about strangulation as an act of domestic violence. The purpose of using an expert at a trial for strangulation is to try to "bridge the gap" of a jury’s natural inclination to doubt the alleged victim’s "story."

The expert will not only address the mechanism of injury in the alleged act of strangulation, but will no doubt try to testify about abusive relationships and The Cycle of Violence."

Juries have a strong tendency to believe that the alleged victim, in the absence of clear evidence, is exaggerating the facts. The need for an expert to testify is due to the inherent weaknesses in these cases as outlined in this article.

The Impact of an Alleged Victim Who Refuses to Cooperate or Otherwise Participate in the Criminal Justice System - the Confrontation Clause Issue

Having tried many of these cases to verdict, both as a prosecutor and as a defense attorney, relying on victim testimony is extremely problematic. The vast majority of victims do not want their abuser to be arrested and prosecuted, and these victims often refuse to participate with the criminal justice system.

What happens next is instructive: with an antagonistic alleged victim, the prosecutor must employ other strategies and techniques to prosecute the case. Prosecutors will attempt to use hearsay or out-of-court statements made by alleged victims in the early stages of the investigation. Also, if they are available, other perceiving witnesses may be called to testify against the defendant (although there are rarely independent or "third party" witnesses in these kinds of cases).

Hearsay is often the only way for the prosecutor to try to admit any evidence that could meet the elements of the crime charged - strangulation.

The admission and the effectiveness of hearsay evidence has been severely limited by the United States Supreme Court. There are strong limits placed on the use of hearsay as the use of this type of evidence which, if admitted, may violate the Confrontation Clause and the defendant’s Sixth Amendment rights.

In Crawford v. Washington, the United States Supreme Court ruled that out-of-court statements made by witnesses, which are testimonial in nature, are "barred" under the Confrontation Clause, unless the "witnesses are unavailable and defendants had prior opportunity to cross-examine the witnesses."

Statements are interpreted as "non-testimonial" when they are made "in the course of police interrogations under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency."

A Colorado trial judge must evaluate the nature of questions asked by a 911 dispatcher or a law enforcement official who has responded to a crime scene to determine the "level of formality" and to "assess the primary purpose" of the questions.

If a court determines that the questions were asked to "preserve information for later prosecution," the statements will be considered testimonial and, in effect, inadmissible of the alleged victim is not available to testify.

The trial judge must distinguish between "testimonial" and "non-testimonial" statements, and by doing so, limit the type of hearsay which may be admitted into evidence during the trial.

Colorado Law Requires the Victim to be Available to Testify for the Attempted Admission Into Evidence of the Alleged Victim’s Prior Out of Court Hearsay Statements

The classic strangulation case involves the typical he-said/she-said complexities found in most alleged one-on-one assaults. Most of these cases contain allegations of domestic violence. In many of these cases the alleged victims do not want cooperate or otherwise participate in the criminal justice system.

These alleged victims routinely recant their statements and attempt to withdraw from the process and to make themselves "unavailable" to testify in the prosecution of their loved one. It is in this context that the prosecutor will attempt to substitute hearsay evidence for the alleged victim’s now "unavailable" testimony.

This kind of hearsay evidence usually includes verbal statements given by the alleged victim to the police upon their first arrival at the scene of a crime. It may take the form of body worn camera video (body cam) or may include written statements made by the victim.

For these efforts to succeed, i.e. the admission of this kind of evidence, the alleged victim must be available for confrontation - essentially cross examination by the defendant’s lawyer. It is important to note here that a witness is considered subject to cross-examination at trial even if the witness testifies to memory loss as to the events in question.

The out of court statements made by the alleged victim are offered to prove the elements of the crime charged. This is a complex area of the law. For a comprehensive analysis of this area - please follow this link.

A Comprehensive Guide to Understanding Colorado’s Second Degree Assault - Strangulation Law 18-3-203

ABOUT THE AUTHOR: H. Michael Steinberg

Email The Author at [email protected] - A Denver Colorado Criminal Defense Lawyer - call his office at 303-627-7777 during business hours - or call his cell if you cannot wait and need his immediate assistance - 720-220-2277. Attorney H. Michael Steinberg is passionate about criminal defense. His extensive knowledge and experience of Colorado Criminal Law gives him the edge you need to properly handle your case.