In a very serious charge of Second Degree Assault – with what is called in Colorado – a Hate Crime Enhancer – A University of Colorado student who complained of the smell of the alleged victim for “eating all those Asian noodles.”
The Daily Camera of Boulder Colorado recently reported about a University of Colorado freshman who was arrested on suspicion of second-degree assault and bias-motivated crime after making derogatory remarks about Asian food, and then punching and choking a half-Asian student who objected.
Before getting into the case – here is the Colorado Hate Crimes Law: C.R.S. 18-9-121
18-9-121. Ethnic Intimidation.
(1) The general assembly hereby finds and declares that it is the right of every person, regardless of race, color, ancestry, religion, or national origin, to be secure and protected from fear, intimidation, harassment, and physical harm caused by the activities of individuals and groups.
The general assembly further finds that the advocacy of unlawful acts against persons and groups because of a person’s or group’s race, color, ancestry, religion, or national origin, for the purpose of inciting and provoking bodily injury or damage to property, poses a threat to public order and safety and should be the subject of criminal sanctions.
(2) A person commits ethnic intimidation if, with the intent to intimidate or harass another person because of that person’s race, color, religion, ancestry or national origin, he:
(a) Knowingly causes bodily injury to another person; or
(b) By words or conduct, knowingly places another person in fear of imminent lawless action directed at that person or that person’s property and such words or conduct are likely to produce bodily injury to that person or damage to that person’s property;
or (c) Knowingly causes damage to or destruction of the property of another person.
(3) Ethnic intimidation is a class 1 misdemeanor, except that a violation of paragraph (a) of subsection (2) of this section is a class 5 felony.
(4) The criminal penalty provided int his section for ethnic intimidation does not preclude the victim of such action from seeking any other remedies otherwise available under law.
Thomas Frank Ross, 19, stands accused of attacking Christopher Tetreault, 18, late Friday night. Tetreault suffered a broken nose. Both men are students and live in an on campus dormitory
According to reports, the two boys were in another student’s room with a larger group that was playing video games – Tetreault told police that Ross blamed him for a bad smell in the room because he “eats all those Asian noodles.” Tetreault also told police that Ross had made derogatory remarks to him about being part Chinese in the past, and that he was “fed up.”
Tetreault told police he swore at Ross, who then punched and choked him, the report said. Tetreault said he threw a Monster Energy drink at Ross in an attempt to stop the attack.
Ross told police Tetreault made derogatory remarks to him about being Jewish and that he didn’t even know Tetreault was part Asian, the report said. He said he only hit Tetreault after Tetreault threw his drink on him.
Other students in the room disagreed about some of the details but told police that Ross made the comment about Tetreault eating noodles and that Ross hit or choked Tetreault before Tetreault threw the drink.
According to the police report, Ross stopped punching Tetreault when he started bleeding from the face.
Ross also faces a student disciplinary procedure through the Office of Student Conduct, which is separate from the criminal process.
Speaking generally, students accused of violent crimes face summary suspension from campus and cannot come on campus except for meetings with the Office of Student Conduct.
H. Michael’s Take
Ironically – if this case proceeds to trial – the charge of Second Degree Assault – a Colorado Crime of Violence – mandates – if the Defendant is convicted – a minimum mandaory 5 year prison sentence.
However, it appears to me this case will most likely generate a self defense claim by the Defendant as regards his interaction with the alleged victim. What complicates matters is – in fact – the allegation of the commission of a Colorado Hate Crime. This allegation often confuses and misdirects the jury into focusing on the bias issue and not the assault issue.
It is clear to me that the Defendant’s lawyer will have to walk a careful and clear line at trial on this issue – to prevent the jury – especially in a liberal jurisdiction such as Boulder Colorado – from “skipping” over the self defense issues and focusing instead on the emotional and less factual hate crimes “circus” of evidence.