A Boulder district judge ruled Wednesday that both felony charges against former University of Colorado lineman Alexander Lewis in connection to an assault on University Hill will proceed to trial, and he also threw out a motion by Lewis' attorneys asking that statements he gave to police after the incident be suppressed because Lewis was drunk.
Prosecutors have filed two felony assault charges against Lewis -- one count of second-degree assault causing serious bodily injury, and one count of second-degree assault with a deadly weapon, in this case Lewis' hands.
Boulder police arrested Lewis and CU quarterback Jordan Webb in the early-morning hours of May 11 after witnesses said the men were involved in a fight on the Hill that left an Air Force cadet unconscious.
According to a police report, witnesses said Lewis bumped into Lee Bussey, 22, starting an argument between the two. The witnesses said then both Lewis and Webb pushed Bussey to the ground and began punching him.
Boulder police Officer Brad Kithcart testified that a witness said Lewis at one point put his hands on Bussey's head and repeatedly hit his head into a brick wall. The witness also told Kithcart that Lewis put his hand on Bussey's throat and shoved him into a parking kiosk, at which point he lost consciousness.
Boulder Detective Heather Frey testified that an Air Force physician said Bussey sustained a concussion.
In arguing against second-degree assault with a deadly weapon, Lewis' attorney Gary Lozow said Lewis should not be punished for having the upper hand in the brawl. Lewis is 6 feet, 5 inches and 250 pounds, while Bussey is 5 feet, 11 inches and 180 pounds, according to testimony.
"Here, I think you have a fight, not much more or much less than that except one guy is bigger than the other," Lozow said. "I don't think that makes his hands a deadly weapon."
But prosecutor Ken Kupfner said it was how Lewis used his hands that warranted the charge.
Judge Patrick Butler said that as a former defense attorney he never liked the charge, but for the purposes of a preliminary hearing -- in which a judge must rule based on testimony viewed in a light most favorable to the prosecution -- the charge would be upheld.
"It's the manner in which he used his hands, and ultimately that's going to be for a jury to determine," Butler said.
As for second-degree assault causing serious bodily injury, while Lozow began to present reports from a Boulder emergency room physician that Bussey's symptoms were due to intoxication and not a head injury, Butler said for the purpose of a preliminary hearing he was obligated to side with the police testimony.
At the hearing, Lewis' attorneys also tried to have his statements to Kithcart after his arrest suppressed, arguing that he was too drunk to knowingly and intelligently waive his Miranda rights.
Kithcart testified that Lewis told him he drank six glasses of wine, 10 beers and six shots, but said he was coherent and understood the severity of the situation.
"He seemed upset, but he was coherent," Kithcart said. "I told him Mr. Bussey was hurt pretty badly and that's why we were in the situation we were in."
Lewis is scheduled for a trial the week of Jan. 20 after pleading not guilty Oct. 4.
Lewis -- an offensive lineman who transferred to the University of Nebraska in May -- has been attending school between hearings and is now free on $10,000 bond.
Webb -- who originally was charged with second-degree assault -- took a plea deal in September. Webb pleaded guilty to third-degree assault, a misdemeanor, and was sentenced to two years of probation and 20 days on a work crew.