VOLLACK, Justice.
Pursuant to section 16-12-102, 8 C.R.S. (1978), the People appeal the dismissal by the trial court of two counts of second degree assault on a peace officer under section 18-3-203(l)(f), 8 C.R.S. (1978 and 1985 Supp.). We reverse and remand with directions.
I.
On December 3, 1983, at approximately 10:10 P.M., Aspen police officers White and King responded to a fight in progress in an alley. The defendant, Michael Anthony Armstrong, was not involved in the fight, but when the two officers attempted to intervene, Armstrong demanded that the officers leave and “mind their own fucking business.” The officers continued to attempt to break up the fight, and the defendant continued to verbally assault the officers. Officer King warned Armstrong that he was interfering with the officers’ attempt to stop the fight and that if he continued, he could be arrested for “obstructing a peace officer.” The defendant continued to interfere. The officers backed Armstrong away from the fight approximately ten feet and again explained to him that his interference could result in his arrest. As the officers attempted to return to the original altercation, the defendant followed and attempted to physically place himself between the officers and the fight. Officer King then requested backup assistance. Upon the arrival of the backup assistance, officer King told Armstrong, “Otis, you’re under arrest for obstructing. Turn around, put your hands behind your back_” Armstrong refused to comply. Because officer King could not handcuff the defendant alone, he and another officer grabbed one of Armstrong’s arms in an attempt to secure and handcuff him. A scuffle ensued. Before the officers were able to subdue the defendant, Armstrong punched officer Hauswirth in the face and [167]*167kneed officer Brannan in the chest. Two sets of handcuffs were used.
The defendant was charged with obstructing a peace officer under section 18-8-104(1), 8 C.R.S. (1978); resisting arrest under section 18-8-103(l)(a), 8 C.R.S. (1978); and two counts of assault in the second degree under section 18-3-203(l)(f), 8 C.R.S. (1978 and 1985 Supp.). The defendant was also charged with counts not related to the subject matter of this appeal.
In a pretrial hearing, the district court dismissed the second degree assault charges. It ruled that the second degree assault statute and the resisting arrest statute, under the facts of this case, prescribed different sanctions for the same criminal conduct, in violation of equal protection guarantees. We believe the district court dismissed the charges prematurely. It should have allowed the People to present evidence at trial as to the charge of second degree assault. Accordingly, we reverse and remand with directions.
II.
We first determine, as a threshold question, whether section 18-3~203(l)(f), 8 C.R.S. (1978 and 1985 Supp.), applies to a field arrest situation. The applicable portion of the second degree assault statute states:
While lawfully confined or in custody, he violently applies physical force against the person of a peace officer or fireman engaged in the performance of his duties or while lawfully confined or in custody as a result of being charged with or convicted of a crime, he violently applies physical force against a person engaged in the performance of his duties while employed by or under contract with a detention facility, as defined in section 18-8-203(3), and the person committing the offense knows or reasonably should know that the victim is a peace officer or fireman engaged in the performance of his duties or a person engaged in the performance of his duties while employed by or under contract with a detention facility. A sentence imposed pursuant to this paragraph (f) shall be mandatory, and the court shall not grant probation or a suspended sentence, in whole or in part, and shall run consecutively with any sentences being served by the offender. A person who participates in a work release program, furlough, or any other similar authorized supervision or unsupervised absence from a detention facility, as defined in section 18-8-203(3), and who is required to report back to the detention facility at a specified time shall be deemed to be in custody.
Section 18-3-203(l)(f), 8 C.R.S. (1978 and 1985 Supp.) (emphasis added).
The applicable portion of the resisting arrest statute states:
(1) A person commits resisting arrest if he knowingly prevents or attempts to prevent a peace officer, acting under col- or of his official authority, from effecting an arrest of the actor or another, by: (a) Using or threatening to use physical force or violence against the peace officer or another.
Section 18-8-103, 8 C.R.S. (1978).
When the plain meaning of a statute is clear, it is unnecessary to examine the legislative history with regard to that statute. People v. Deadmond, 683 P.2d 763 (Colo.1984); Engelbrecht v. Hartford Association Acc. and Indem. Co., 680 P.2d 231 (Colo.1984). The first clause in section 18-3-203(l)(f), “[w]hile lawfully confined or in custody, he violently applies physical force against the person of a peace officer or fireman engaged in the performance of his duties, ...” makes no reference to a detention facility employee, while the rest of the section clearly does. If the legislature intended that this first clause be applicable only in detention or correctional facility situations, it would have so stated. Moreover, the use of the disjunctive, “or,” makes it plain that 18-3-203(l)(f) applies to field arrest situations as well as to detention facilities. In both People v. Wieder, 693 P.2d 1006 (Colo.App.1984), and in People v. Olinger, 39 Colo.App. 491, 566 P.2d 1367 (1977), the court of appeals held that the General Assembly intended the word [168]*168“confined” to have a meaning different from and to be more restrictive than “custody,” and that the word “custody” was intended to correct a shortcoming or deficiency previously existing in the statute.
Moreover, we disagree with Armstrong’s claim that the definition of “in custody,” as contained in CJI-Crim. 10:20, 10(4), is controlling. The April 28, 1988, order of Paul V. Hodges, then Chief Justice of the Colorado Supreme Court, adopting CJI-Crim. stated:
These instructions are intended as guidelines and should be used in cases in which they are applicable. The Court does not specifically approve any one of these instructions since they have not been tested in an adversary proceeding. They are not intended to be a complete set of instructions for each case and additional or different instructions may be required depending on the issues of fact and law presented at trial. Until these instructions are tested in an adversary proceeding, they are approved in principle.
Thus, while CJI-Crim. carries weight and should be considered by a trial court, an opinion of an appellate court is clearly controlling. People v. Wieder, 693 P.2d 1006 (Colo.App.1984); People v. Olinger, 39 Colo.App.
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VOLLACK, Justice.
Pursuant to section 16-12-102, 8 C.R.S. (1978), the People appeal the dismissal by the trial court of two counts of second degree assault on a peace officer under section 18-3-203(l)(f), 8 C.R.S. (1978 and 1985 Supp.). We reverse and remand with directions.
I.
On December 3, 1983, at approximately 10:10 P.M., Aspen police officers White and King responded to a fight in progress in an alley. The defendant, Michael Anthony Armstrong, was not involved in the fight, but when the two officers attempted to intervene, Armstrong demanded that the officers leave and “mind their own fucking business.” The officers continued to attempt to break up the fight, and the defendant continued to verbally assault the officers. Officer King warned Armstrong that he was interfering with the officers’ attempt to stop the fight and that if he continued, he could be arrested for “obstructing a peace officer.” The defendant continued to interfere. The officers backed Armstrong away from the fight approximately ten feet and again explained to him that his interference could result in his arrest. As the officers attempted to return to the original altercation, the defendant followed and attempted to physically place himself between the officers and the fight. Officer King then requested backup assistance. Upon the arrival of the backup assistance, officer King told Armstrong, “Otis, you’re under arrest for obstructing. Turn around, put your hands behind your back_” Armstrong refused to comply. Because officer King could not handcuff the defendant alone, he and another officer grabbed one of Armstrong’s arms in an attempt to secure and handcuff him. A scuffle ensued. Before the officers were able to subdue the defendant, Armstrong punched officer Hauswirth in the face and [167]*167kneed officer Brannan in the chest. Two sets of handcuffs were used.
The defendant was charged with obstructing a peace officer under section 18-8-104(1), 8 C.R.S. (1978); resisting arrest under section 18-8-103(l)(a), 8 C.R.S. (1978); and two counts of assault in the second degree under section 18-3-203(l)(f), 8 C.R.S. (1978 and 1985 Supp.). The defendant was also charged with counts not related to the subject matter of this appeal.
In a pretrial hearing, the district court dismissed the second degree assault charges. It ruled that the second degree assault statute and the resisting arrest statute, under the facts of this case, prescribed different sanctions for the same criminal conduct, in violation of equal protection guarantees. We believe the district court dismissed the charges prematurely. It should have allowed the People to present evidence at trial as to the charge of second degree assault. Accordingly, we reverse and remand with directions.
II.
We first determine, as a threshold question, whether section 18-3~203(l)(f), 8 C.R.S. (1978 and 1985 Supp.), applies to a field arrest situation. The applicable portion of the second degree assault statute states:
While lawfully confined or in custody, he violently applies physical force against the person of a peace officer or fireman engaged in the performance of his duties or while lawfully confined or in custody as a result of being charged with or convicted of a crime, he violently applies physical force against a person engaged in the performance of his duties while employed by or under contract with a detention facility, as defined in section 18-8-203(3), and the person committing the offense knows or reasonably should know that the victim is a peace officer or fireman engaged in the performance of his duties or a person engaged in the performance of his duties while employed by or under contract with a detention facility. A sentence imposed pursuant to this paragraph (f) shall be mandatory, and the court shall not grant probation or a suspended sentence, in whole or in part, and shall run consecutively with any sentences being served by the offender. A person who participates in a work release program, furlough, or any other similar authorized supervision or unsupervised absence from a detention facility, as defined in section 18-8-203(3), and who is required to report back to the detention facility at a specified time shall be deemed to be in custody.
Section 18-3-203(l)(f), 8 C.R.S. (1978 and 1985 Supp.) (emphasis added).
The applicable portion of the resisting arrest statute states:
(1) A person commits resisting arrest if he knowingly prevents or attempts to prevent a peace officer, acting under col- or of his official authority, from effecting an arrest of the actor or another, by: (a) Using or threatening to use physical force or violence against the peace officer or another.
Section 18-8-103, 8 C.R.S. (1978).
When the plain meaning of a statute is clear, it is unnecessary to examine the legislative history with regard to that statute. People v. Deadmond, 683 P.2d 763 (Colo.1984); Engelbrecht v. Hartford Association Acc. and Indem. Co., 680 P.2d 231 (Colo.1984). The first clause in section 18-3-203(l)(f), “[w]hile lawfully confined or in custody, he violently applies physical force against the person of a peace officer or fireman engaged in the performance of his duties, ...” makes no reference to a detention facility employee, while the rest of the section clearly does. If the legislature intended that this first clause be applicable only in detention or correctional facility situations, it would have so stated. Moreover, the use of the disjunctive, “or,” makes it plain that 18-3-203(l)(f) applies to field arrest situations as well as to detention facilities. In both People v. Wieder, 693 P.2d 1006 (Colo.App.1984), and in People v. Olinger, 39 Colo.App. 491, 566 P.2d 1367 (1977), the court of appeals held that the General Assembly intended the word [168]*168“confined” to have a meaning different from and to be more restrictive than “custody,” and that the word “custody” was intended to correct a shortcoming or deficiency previously existing in the statute.
Moreover, we disagree with Armstrong’s claim that the definition of “in custody,” as contained in CJI-Crim. 10:20, 10(4), is controlling. The April 28, 1988, order of Paul V. Hodges, then Chief Justice of the Colorado Supreme Court, adopting CJI-Crim. stated:
These instructions are intended as guidelines and should be used in cases in which they are applicable. The Court does not specifically approve any one of these instructions since they have not been tested in an adversary proceeding. They are not intended to be a complete set of instructions for each case and additional or different instructions may be required depending on the issues of fact and law presented at trial. Until these instructions are tested in an adversary proceeding, they are approved in principle.
Thus, while CJI-Crim. carries weight and should be considered by a trial court, an opinion of an appellate court is clearly controlling. People v. Wieder, 693 P.2d 1006 (Colo.App.1984); People v. Olinger, 39 Colo.App. 491, 566 P.2d 1367 (1977).
III.
The equal protection guarantees contained in Article II, Section 25, of the Colorado Constitution have been held to invalidate separate statutes proscribing the same criminal conduct with different penalties. People v. Wilhelm, 676 P.2d 702 (Colo.1984); People v. Westrum, 624 P.2d 1302 (Colo.1981). Statutes prescribing different sanctions for what ostensibly might be different acts, but offering no rational standard for distinguishing such different acts for purposes of disparate punishment, also contravene the equal protection guarantees of the Colorado Constitution. People v. Calvaresi, 188 Colo. 277, 534 P.2d 316 (1975). However, harsher penalties for crimes committed under different circumstances than those which accompany the commission of other crimes do not violate equal protection guarantees if the classification is rationally based upon differences in the acts or the conduct which is proscribed. People v. Gibson, 623 P.2d 391 (Colo.1981).
Whether section 18-3-203(l)(f), 8 C.R.S. (1978 and 1985 Supp.) (second degree assault), and section 18-8-103(l)(a), 8 C.R.S. (1978) (resisting arrest), proscribe substantially identical conduct requires an inquiry into the point at which one is arrested and the point at which one is “in custody.”
Whether a person has been arrested for constitutional purposes must be determined not on the basis of the officer’s subjective state of mind, but on an objective “reasonable person” standard. People v. Tottenhoff, 691 P.2d 340 (Colo.1984). Under this standard, a court must assess the totality of circumstances surrounding the officer’s encounter with the person and determine whether, in view of these circumstances, a reasonable person in that situation would have believed that he was being arrested, rather than merely temporarily detained for a brief investigation. Id.; People v. Pancoast, 659 P.2d 1348 (Colo.1982).
For purposes of custodial interrogation, we have considered several factors in determining whether a person is in custody, including:
The time, place and purpose of the encounter; the persons present during the interrogation; the words spoken by the officer to the defendant; the officer’s tone of voice and general demeanor; the length and mood of the interrogation; whether any limitation of movement or other form of restraint was placed on the defendant during the interrogation; the officer’s response and the questions asked by the defendant; whether directions were given to the defendant during the interrogation; and the defendant’s verbal and non-verbal responses to such directions.
[169]*169People v. Thiret, 685 P.2d 193, 203 (Colo.1984).
The totality of the circumstances surrounding the interrogation, when viewed by an objective standard of whether a reasonable person in the defendant’s circumstances would have believed that he was free to leave the officer’s presence, determines whether the defendant was in custody. Thiret, 685 P.2d at 203; People v. Johnson, 671 P.2d 958 (Colo.1983).
What constitutes an arrest and what constitutes in custody would appear to turn on similar if not the same objective reasonable person standard. However, the definition of custody necessarily differs from that of arrest for purposes of section 18 — 3—203(l)(f), 8. C.R.S. (1978 and 1985 Supp.), when the person subject to an arrest resists that arrest. In this situation, to effect an arrest, the peace officer must apply a level of physical control over the person resisting the arrest so as to reasonably ensure that the person does not leave. Once the arrest has been effected, then the person is in custody for purposes of section 18 — 3—203(l)(f). Accordingly, we hold that an arrest precedes “in custody” for purposes of section 18 — 3—203(l)(f), when the person subject to an arrest resists that arrest.
Here, the People assert that Armstrong was charged with resisting officer King’s efforts to arrest him. Further, they assert that Armstrong was charged with assaulting officers Brannan and Haus-wirth, after Armstrong was in custody. It is for the trier of fact to determine after the evidence has been presented at trial whether, under the totality of the circumstances, Armstrong may be guilty of both resisting arrest and second degree assault, or whether Armstrong may be guilty only of resisting arrest or only of second degree assault. One of the factors in making such a determination shall be whether the actions of Armstrong, which caused injury to the officers, were continuous, stemming from his efforts to resist arrest, or whether there was a break between his actions to thwart officer King’s efforts to arrest him and the actions which lead to the injury of officers Brannan and Hauswirth.
Accordingly, we reverse and reinstate the two second degree assault charges.
LOHR, J., specially concurs.
DUBOFSKY, J„ dissents.