People v. Childress

Citations: 409 P.3d 365; 2012 COA 116; 2012 WL 2926636; 2012 Colo. App. LEXIS 1131Docket: No. 08CA2329

Court: Colorado Court of Appeals; July 19, 2012; Colorado; State Appellate Court

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Kenneth Leon Childress appeals his conviction on multiple charges, including child abuse resulting in serious bodily injury and vehicular assault (DUI). The court determines that complicitor liability does not apply to strict liability crimes like vehicular assault (DUI), as they do not require a culpable mental state. The trial court erred by not requiring the prosecution to specify which incident supported the child abuse conviction or by failing to provide a modified unanimity instruction to the jury. Additionally, further proceedings are required to assess the propriety of a sentencing judge's substitution. Consequently, the court vacates the vehicular assault conviction, reverses the child abuse conviction, affirms the remaining convictions, and remands the case for a new trial on the child abuse charge, further sentencing proceedings, and corrections to the mittimus. 

The incidents leading to the charges occurred during a weekend visitation with Childress's sons, B.L. and K.C. At a party attended by underage guests, Childress bought alcohol and consumed it heavily. After attempting to drive with K.C. while impaired, he allowed B.L. to drive, during which they were involved in a serious accident, resulting in K.C. sustaining severe injuries. The jury acquitted Childress of vehicular assault (reckless driving) and DUI but convicted him of related charges, leading to a sentence of twenty-eight years for child abuse and additional sentences for the other convictions, some of which are served concurrently and others consecutively.

Defendant appeals three primary issues: (1) the vacatur of his vehicular assault conviction based on complicitor liability; (2) the reversal of his child abuse conviction due to procedural issues concerning the bill of particulars and jury unanimity; and (3) the vacatur of his sentences since the trial judge did not impose them. 

Regarding complicitor liability for vehicular assault (DUI), the prosecution argued that the defendant could be held liable as a complicitor for both vehicular assault (DUI) and vehicular assault (recklessness). However, the jury acquitted him of the recklessness charge and convicted him of DUI. The defendant argues that his DUI conviction should be vacated because complicitor liability does not apply to strict liability crimes. The court agrees and cites that complicity is not an independent crime but a theory of liability where a defendant is accountable for another's criminal act if they intended to aid or encourage the principal’s offense. The court emphasizes that complicity does not recognize strict liability crimes, supported by Colorado statutes and supreme court precedent requiring a dual mental state for complicity: the complicitor must possess the culpable mental state of the principal crime and intend to promote or facilitate its commission. 

The legal definition of culpable mental state includes possible unintentional actions (e.g., recklessness or criminal negligence), which have been recognized by the court in previous cases involving complicity. Thus, the court indicates that the defendant's conviction for vehicular assault (DUI) must be vacated due to the nature of complicitor liability not applying to strict liability offenses.

Vehicular assault (DUI) is classified as a strict liability crime under Colorado law, meaning that to be found guilty, an individual must (1) operate a motor vehicle, (2) while under the influence of alcohol or drugs, and (3) cause serious bodily injury as a direct result of that conduct. The statute explicitly does not require any culpable mental state for the offense. The General Assembly has clarified that strict liability offenses are mutually exclusive from those requiring a culpable mental state, thus establishing that such a mental state is not an element of vehicular assault (DUI).

The prosecution argues that since the principal offense does not necessitate a culpable mental state, neither should a complicitor. However, this interpretation would alter the supreme court’s established language, which maintains that a complicitor must possess a culpable mental state aligned with the principal's actions. The prosecution's position would incorrectly impose strict liability on complicitors, contrary to supreme court precedent, which has only applied complicitor liability to crimes characterized by recklessness or negligence.

Previous court rulings, such as in Wheeler and Grissom, have confirmed that complicitor liability can extend to crimes lacking an intentional culpable mental state, specifically for criminal negligence or recklessness. However, the supreme court has limited the application of these rulings to crimes defined in terms of recklessness or negligence, as reiterated in the Bogdanov case, which disapproved of extending these principles to strict liability offenses. There are no known Colorado appellate decisions that have applied the Wheeler standard in cases involving strict liability crimes.

The supreme court's ruling in Grissom acknowledges that accomplice liability can encompass unintentional crimes committed by a principal if both parties are involved in a "common enterprise." However, the cases cited by the court all pertain to crimes necessitating negligent or reckless conduct. These include instances of criminally negligent homicide, aiding involuntary manslaughter, and various scenarios involving reckless actions during activities like drag racing. The court's emphasis suggests that "unintentional crimes" are limited to those involving recklessness or negligence, rather than strict liability offenses.

In contrast, the case of People v. Fisher is noted as distinguishable because it pertains to felony murder, which does not require intent to kill but does necessitate the commission of a predicate felony with a culpable mental state. The ruling in Fisher indicates that if a complicitor shares the mental state of the principal for the underlying felony, liability can be established.

However, vehicular assault (DUI) does not require a culpable mental state, setting it apart from the other crimes discussed. Thus, the decisions referenced, including Wheeler, Bogdanov, Grissom, and Fisher, do not support extending Colorado’s complicity statute to crimes lacking negligence or recklessness. The court's interpretation in Bogdanov and Grissom reinforces this limitation.

The court's decision allows for the prosecution of the defendant's conduct, which includes a not guilty verdict for vehicular assault (recklessness) and guilty verdicts for contributing to the delinquency of minors, driving while impaired, reckless endangerment, and reckless driving. The court notes that the defendant can be retried for child abuse resulting in serious bodily injury for permitting a minor to ride unrestrained while another minor drove recklessly. The conviction for vehicular assault (DUI) is vacated, as the court declines to apply Colorado's complicity statute to this charge, which does not involve a specific mental state.

Regarding the child abuse conviction, the defendant argues for reversal due to the trial court's failure to require a bill of particulars and to compel the prosecution to specify which act supported the child abuse charge, or to instruct the jury on the necessity of a unanimous agreement on the act constituting child abuse. The court agrees that a reversal is warranted, emphasizing the constitutional right to a jury trial and the requirement for a unanimous verdict in Colorado. The trial court should have either required the prosecution to select a specific act for conviction or instructed the jury that they must unanimously agree on the same act.

Evidence presented at trial included allegations that the defendant engaged in multiple abusive acts towards K.C., such as forcing alcohol consumption, placing K.C. in a dryer, and exposing K.C. to cold weather without proper clothing. Additionally, during two car trips, the defendant was described as driving recklessly while K.C. was unrestrained, providing extensive evidence for the child abuse charge under Colorado law, which outlines various prongs for committing child abuse.

B.L. drove to a party with K.C. in the back seat, failing to secure him with a seatbelt or car seat. B.L. lacked a driver’s license and engaged in reckless driving behaviors, including speeding, swerving, running red lights, and crashing into a building, all while having a blood alcohol level above the legal limit. K.C. sustained injuries in this incident. During the trial, the defendant contested the need for the prosecution to specify which act constituted the basis for the child abuse charge and sought a bill of particulars, which was denied. He requested instructions for a lesser included offense and causation, which would allow the jury to find him guilty of child abuse that did not result in serious injury if they determined his actions did not cause K.C.’s injuries. The trial court rejected these instructions, asserting that the charge stemmed from K.C. being placed in harm's way during the accident. The defendant also requested a unanimity instruction, arguing that multiple acts could support the child abuse charge, but this was also denied without explanation. The prosecution aimed for a conviction based on the theory that the defendant recklessly or knowingly endangered K.C. The jury was instructed on the elements of child abuse, emphasizing the need for a unanimous verdict. It was concluded that the prosecution presented multiple potential bases for the child abuse charge, and the instructions provided did not ensure a unanimous verdict, particularly as the prosecution did not clarify which act it relied upon, although the trial court believed it was the act of allowing K.C. to ride with the reckless driver.

The prosecution's closing argument for the child abuse charge did not mention B.L.'s driving but focused on the defendant's actions that recklessly endangered K.C. The prosecution outlined three key incidents: transporting K.C. from Aurora to a party in Lakewood with alcohol, drugs, and firearms; placing K.C. in a car without a child seat; and driving recklessly at high speeds back to Aurora, which contributed to K.C.'s serious bodily injury. Notably, the prosecution did not connect B.L.'s subsequent driving to the child abuse charge, which may have led some jurors to base their decision on that driving incident, potentially compromising the verdict's reliability. The prosecution admitted that jurors could have interpreted different actions as grounds for conviction without a modified unanimity instruction, allowing for the possibility of mixed reasoning among jurors. Conversely, the prosecution argued that the jury instructions were adequate to ensure a unanimous verdict, asserting that the requirement for the act to both pose a threat and result in serious injury meant the jury must have agreed on the act of K.C. riding in the car while B.L. drove as the basis for their decision.

The prosecution's closing argument, the evidence presented, and the jury instructions collectively undermine the contention regarding the requirement for a unanimous verdict on the specific act of child abuse leading to serious bodily injury. The jury was informed only that each charge must be unanimously decided, failing to clarify that they needed to unanimously agree on the particular act supporting each verdict. The trial court erred by not providing a modified unanimity instruction, necessitating a reversal of the defendant's conviction for child abuse, as it raises uncertainty about a unanimous jury decision.

Regarding sentencing, the defendant argues that his sentence should be vacated because the sentencing judge was not the one who presided over the trial. The court agrees that this issue requires further examination by the sentencing court. The senior judge who oversaw the trial was absent during sentencing without a sufficient explanation, and the substitute judge's review of the case files did not satisfy the requirements of Crim. P. 25. This rule emphasizes the preference for the original trial judge to also impose the sentence, and any substitution must be adequately documented. The sentencing judge's rationale for proceeding without the trial judge was deemed inadequate, leading to the conclusion that the sentence should be vacated unless the absence is justified according to Crim. P. 25 upon remand.

Remand is necessary due to insufficient reasoning for the judge substitution. If the sentencing judge determines the substitution was due to the senior judge's absence, illness, or disability, the sentences for contributing to the delinquency of a minor, driving while impaired, and reckless driving will be upheld, with the defendant retaining the right to appeal. If the substitution was for an impermissible reason under Crim. P. 25, the sentences will be vacated, and the senior judge will resentence the defendant. If the senior judge is unable to resentence for specified reasons, the original sentences will again be upheld, subject to appeal.

Additionally, the mittimus is incorrect, inaccurately stating the conviction as driving under the influence instead of driving while impaired by alcohol. The trial court must correct the mittimus on remand. 

The judgment is vacated regarding the vehicular assault conviction, reversed for the child abuse conviction, and affirmed for the remaining convictions. A new trial for the child abuse charge is ordered, along with the correction of the mittimus and further proceedings as outlined. The court declines to follow an Ohio case cited by the People, noting differences in statutory wording and a lack of supporting authority for its conclusions. The defendant does not contest that the injuries sustained by K.C. qualify as serious bodily injury.