May 7, 2015
The People of the State of Colorado, Plaintiff-Appellee,
LaShawn Lynn Harris, Defendant-Appellant
Arapahoe County District Court No. 05CR3691. Honorable John
L. Wheeler, Judge.
H. Coffman, Attorney General, Katherine A. Hansen, Senior
Assistant Attorney General, Denver, Colorado, for
K. Wilson, Colorado State Public Defender, Ellen K.
Eggleston, Deputy State Public Defender, Dayna Vise, Deputy
State Public Defender, Denver, Colorado, for
and Nieto[*], JJ., concur.
Defendant, LaShawn Lynn Harris, appeals the judgment of
conviction entered on jury verdicts finding her guilty of
child abuse -- resulting in death and reckless endangerment.
We conclude that the trial court erred by admitting other act
evidence, and that this error was not harmless. We therefore
reverse and remand for a new trial.
In 2005, Harris lived with her two children, L.L. (four years
old) and O.W. (six years old), and her husband and his son,
S.H. (four years old). On July 25, S.H. accidentally fell
down the stairs at home and hit his head. Harris called 911,
S.H. was taken to the hospital, and he was diagnosed with a
subdural hematoma on the right side of his brain. S.H. was
discharged from the hospital on July 28.
As a result of the fall and resulting subdural hematoma, S.H.
began to experience seizures. On August 4, S.H. suffered a
seizure at home, and was readmitted to the hospital. Doctors
placed S.H. on anti-seizure medication and discharged him the
following day, August 5. Within several days of his
discharge, S.H. began to suffer multiple seizures per day.
Harris and her husband understood that they were not to call
911 or take S.H. to the hospital unless he had a seizure that
lasted more than ten minutes.
On the morning of August 22, Harris's husband was at
school and Harris was at home with L.L., O.W., and S.H. While
Harris was getting the children ready to leave the house,
something happened to S.H. that rendered him unconscious and
made it appear that he was sleeping. When Harris brought S.H.
out of the house and put him in the car with the other
children, he did not appear to be awake and was having
difficulty breathing. Harris then drove the three children to
her mother's house.
After arriving at her mother's house, Harris and her
mother decided to take S.H. to the hospital. Instead of
calling an ambulance, they drove S.H. to the hospital in the
family car. Just before arriving at the hospital, it appeared
that S.H. had stopped breathing. Harris's mother took
S.H. into the emergency room and Harris left to take L.L. and
O.W. to school. Harris then went to her own doctor
appointment before returning to the hospital.
Upon arrival in the emergency room, S.H. was not breathing,
but doctors successfully resuscitated him. Doctors conducted
a CT scan of S.H.'s brain around ten o'clock that
morning, and again at around three o'clock that
afternoon. They diagnosed him with a subdural hematoma on the
left side of his brain. This left-sided hematoma never
resolved and S.H. died from it on September 2.
The prosecution charged Harris, and she was ultimately tried
for first degree murder, child abuse -- resulting in death,
and reckless endangerment. L.L. and O.W. testified at trial,
and the court admitted their respective forensic interviews,
as well as testimony from people to whom L.L. and O.W. made
statements about what happened to S.H. on the morning of
August 22. Statements from both L.L. and O.W. indicated that
Harris was upset with S.H. while they were getting ready to
leave the house that morning, and L.L. stated in one of her
forensic interviews and to several other people who testified
at trial that Harris threw S.H. down the stairs and was
" whooping" him that morning. Harris did not
Numerous medical experts opined about what could have caused
the injuries that S.H. presented with at the hospital on
August 22. Prosecution experts testified that injuries like
those suffered by S.H. are typically caused by high impact,
blunt force trauma. Several prosecution experts also
testified that, based on the lack of such an event in the
history that Harris provided to doctors at the hospital, the
injuries were likely caused by nonaccidental trauma.
In contrast, the defense's medical expert testified that
nothing in S.H.'s medical record indicated that his
injury was the result of non-accidental trauma. He further
opined that, based on the differences between the morning and
afternoon CT scans on August 22, the left-sided hematoma that
killed S.H. was caused by a small accidental fall that
occurred within forty-eight hours before the morning of
August 22 and was exacerbated by a seizure that morning.
Additionally, on the prosecution's motion, the court
admitted evidence of prior acts pursuant to CRE 404(b). This
evidence included an incident that occurred in 2003 (the
L.L.'s father (not Harris's husband) and his
fiancé e testified that in 2003, when they went with
their infant child to pick L.L. up from Harris's
mother's house, Harris got into an argument with the
fiancé e. While the fiancé e was in the
driver's seat of her car with the infant in the back
seat, Harris approached the driver's side door on foot
and began yelling at the fiancé e. When the
fiancé e tried to drive away with her infant and L.L.
in the car, Harris got into her own car and intentionally
rammed it into the back of the fiancé e's car.
L.L.'s father and L.L. hopped out of the car, the
fiancé e drove away, and Harris drove after her. After
a brief chase, the fiancé e stopped, and Harris
intentionally drove her car into the fiancé e's
car a second time while the fiancé e was standing
beside it and the infant was still inside. The fiancé
e testified that had she not jumped out of the way this
second time, she would have been crushed. The court admitted
this evidence for " the limited purpose of the absence
of mistake or accident and the state of mind of the
Ultimately, the jury found Harris not guilty of first degree
murder, but guilty of child abuse -- resulting in death and
reckless endangerment. The jury was required to indicate
whether it found Harris guilty of child abuse -- resulting in
death because she (1) caused an injury to S.H.'s life or
health that resulted in his death; (2) permitted S.H. to be
unreasonably placed in a situation that posed a threat of
injury that resulted in death; or (3) both. The jury
indicated that it found both. The court convicted and
sentenced her accordingly.
On appeal, Harris argues that the court made numerous errors
that entitle her to relief, including admitting the 2003
carchase incident. Because we conclude that admitting
evidence of that incident was reversible error, we comment on
only one of Harris's other arguments.
Other Act Evidence
Harris argues that the court erred by admitting evidence of
the car-chase incident, as well as several other incidents,
pursuant to CRE 404(b). We review for an abuse of discretion.
See People v. Cousins, 181 P.3d 365, 370
(Colo.App. 2007). Even if the court abused its discretion, we
will reverse only if the error was not harmless. See
Yusem v. People, 210 P.3d 458, 469 (Colo. 2009). We
conclude that admitting the evidence of the car-chase
incident was an abuse of discretion that was not harmless.
[¶15] Evidence of other acts is not
admissible to prove a defendant's character in order to
show that the defendant acted in conformity with that
character in committing the charged offense. CRE 404(b).
However, other act evidence may be admissible to prove, among
other things, the defendant's mental state or to show
absence of mistake or accident. Id.
Our supreme court has articulated a four-part test to
determine whether evidence is admissible pursuant to CRE
404(b): (1) the evidence must be related to a material fact;
(2) the evidence must be logically relevant to that material
fact; (3) the logical relevance must be independent of the
impermissible inference that the defendant has a bad
character and likely committed the charged offense because
the defendant acted in conformity with that bad character;
and (4) the probative value of the evidence must not be
substantially outweighed by the danger of unfair prejudice.
See People v. Spoto, 795 P.2d 1314, 1318
(Colo. 1990). A material fact is one that is " of
consequence" to the determination of the case.
See Yusem, 210 P.3d at 463. Evidence is
logically relevant to a material fact if it has any tendency
to make the existence of that fact more or less likely.
Id. at 464-65. A. Car-Chase Evidence Not Logically
Relevant to a Material Fact
Before trial, in a written motion and during a hearing on
that motion, the prosecution sought permission to admit
evidence of the car-chase incident, arguing that it was
logically relevant to the material facts of Harris's
identity and mental state, as well as to refute a potential
defense of mistake or accident. In a written order, the court
ruled that the evidence was admissible to show Harris's
" motive and intent."
At trial, immediately before admitting the car-chase evidence
through the testimony of L.L.'s father and his
fiancé e, the court instructed the jury to not
consider the evidence " for any purpose other than the
limited purpose of the absence of mistake or accident and the
state of mind of the defendant." Thus, the evidence was
admitted only to show Harris's state of mind and absence
of mistake or accident.
The offenses for which Harris was tried all require either
knowing or reckless conduct. See § §
18-3-102(1)(f), C.R.S. 2014 (first degree murder);
18-6-401(1)(a), (7)(a)(I), C.R.S. 2014 (child abuse);
18-3-208, C.R.S. 2014 (reckless endangerment). Acting
recklessly requires a person to act with awareness and
conscious disregard of a substantial risk. See
§ 18-1-501(8), C.R.S. 2014.
Accordingly, in order to have been logically relevant to
Harris's mental state at the time of the alleged child
abuse crimes involving S.H., the car-chase incident had to
have some tendency to show that, as alleged, on the morning
of August 22, she was aware of and consciously disregarded a
substantial risk that hitting S.H., throwing him down the
stairs, pushing him into a wall, waiting too long to take him
to the hospital, or any combination thereof would result in
[¶21] In general, other act evidence can be
logically relevant to whether a defendant acted knowingly or
recklessly at the time of the charged conduct in four
different ways. First, the evidence may include the
defendant's own statement or behavior that demonstrates
the defendant's knowledge of the outcome of, or the risk
created by, the charged conduct. See People v.
Casias, 2012 COA 117, ¶ 36, 312 P.3d 208. Second,
other act evidence may include facts proving the defendant
had direct knowledge of what the outcome or risk of the
charged conduct would be. Id. Third, the other act
may include circumstantial evidence showing that the
defendant knew the risk or likely outcome of the charged
conduct. Id. Fourth, the other act evidence may be
logically relevant based on the doctrine of chances.
None of these first three theories establishes the logical
relevance of the car-chase incident to Harris's mental
state on August 22. In the car-chase incident, Harris, acting
out of anger towards the fiancé e, allegedly rammed
her car into the fiancé e's car with a
seven-week-old infant inside. She then rammed the
fiancé e's car a second time with the infant still
inside in an attempt to strike the fiancé e
herself. Although disturbing, nothing about
that incident makes it any more or less likely that Harris
knew the risks of " whooping" a child, pushing a
child against a wall, throwing a child down the stairs, or
waiting too long to take a child to the hospital, as she
allegedly did to S.H. No child was injured in the car-chase
incident and Harris's actions were aimed at an adult, not
Nor does the fourth theory, the doctrine of chances,
establish the car-chase incident's logical relevance to
Harris's mental state. Under this theory, the more often
a defendant repeatedly performs a specific act, the more
likely it is that the defendant knows the outcome or risks of
that specific act. Id. at ¶ 39. Accordingly,
the doctrine of chances requires that the other act and the
charged conduct be sufficiently similar. Id. at
¶ ¶ 40-42.
Because, as explained above, Harris's conduct in the
carchase incident was not similar to the charged conduct, it
was not logically relevant based on the doctrine of chances.
For the same reason, the car-chase incident was not logically
relevant to whether she hit, pushed, threw S.H. down the
stairs, or waited too long to seek medical treatment for S.H.
by accident or mistake. Id. at ¶ 51 ( logical
relevance based on lack of accident or mistake requires
Indeed, the only thing to which the car-chase incident was
logically relevant was Harris's propensity to get angry
and fail to consider how her actions could pose a safety risk
to children. Once admitted, the evidence invited the jury to
infer that she acted in conformity with that propensity when
S.H. was fatally injured -- precisely the inference that CRE
404(b) expressly prohibits. Therefore, the court abused its
discretion by admitting the car chase evidence.
The Error was Not Harmless
We must reverse if there is a reasonable probability that the
car chase evidence contributed to Harris's conviction.
See Casias, ¶ 62 ( non-constitutional
error is harmless unless there is a reasonable probability
that it contributed to the defendant's conviction by
substantially influencing the verdict or impairing the
fairness of the trial). " '[A] reasonable
probability' does not mean that it is 'more likely
than not' that the error caused the defendant's
conviction. Instead, it means only a probability sufficient
to undermine confidence in the outcome of the case."
Id. at ¶ 63 (citation omitted).
To determine to what extent erroneously admitted evidence
contributed to a defendant's conviction, we consider a
number of factors, including the impact of the evidence and
the overall strength of the prosecution's case.
Id. at ¶ 64. However, the single most important
factor in determining whether an error was harmless is
whether the case was close. Id. at ¶ 69. If a
case was close, there is a greater chance that the
erroneously admitted evidence affected the jury's
verdict. On the other hand, if the properly admitted evidence
is sufficiently powerful, an appellate court can be fairly
assured that the erroneously admitted evidence did not
substantially sway the jury. Id. at ¶ 69
(citing United States v. Ince, 21 F.3d 576, 584 (4th
Cir. 1994)). " A 'close case' can exist when
experts on either side are in 'sharp dispute' as to
the central issue in the case." Id. at ¶
In Casias, the defendant (Casias) was charged with
killing a seven-week-old baby while he was babysitting her
alone. Id. at ¶ ¶ 1-2. The baby suffered
skull and rib fractures, retinal hemorrhages, severe brain
swelling, and bruising on her forehead. Id. at
¶ 5. The prosecution argued that these injuries were
caused by Casias shaking the baby and striking her head on
the day she was brought to the hospital. Casias claimed that
the baby had accidentally rolled off a bed and struck her
head on the hardwood floor a week before she was brought to
the hospital. Id. at ¶ 6.
Because Casias was the only eyewitness, the central issue in
the case was " whether or not the injuries that caused
[the baby's] death were attributable to an
accident." Id. at ¶ 71. On this issue, the
prosecution presented medical experts who testified that,
based on her injuries, the baby died from a non-accidental
traumatic brain injury. Id. at ¶ 75.
Casias's expert testified that there were plausible
accidental explanations for how the baby died, but refused to
state her ultimate opinion on what caused the baby's
injuries. Id. at ¶ 77. The majority concluded
that because Casias's expert " was unable to opine
that [the baby's] fatal injuries were accidentally
inflicted, the central issue . . . was not sharply
disputed, and, consequently, the case was not 'close'
because of 'dueling experts.'" Id. at
¶ 78 (emphasis in original).
Here, like Casias, the central issue in the case was
what caused S.H.'s injuries. However, unlike
Casias, this issue was sharply disputed by dueling
experts. Although several prosecution experts testified that
S.H.'s injuries were the result of nonaccidental impact
trauma, Harris's expert directly disputed these
assessments. He testified that S.H.'s injuries were
definitively not the result of non-accidental impact trauma
that occurred on the morning of August 22. Instead, he opined
that the hematoma that killed S.H. was caused by a small
accidental fall that occurred sometime during the forty-eight
hours before August 22 and was then exacerbated by a seizure
on the morning of August 22. He justified this opinion by
recounting his review of S.H.'s medical record and
explaining, in detail, how he came to that conclusion. We
recognize that several medical experts testified for the
prosecution while only one testified for Harris. However, we
may not weigh the evidence in this context. We may only
determine whether Harris introduced credible expert testimony
contradicting the prosecution's expert testimony and
placed the central issue in sharp dispute.
Not only was the central issue of what caused S.H.'s
injuries sharply disputed by directly conflicting expert
testimony, but the impact of the erroneously admitted
evidence was greater because it involved putting a
defenseless child in danger. Id. at ¶ 67 ( The
danger created by erroneously admitting evidence of prior bad
acts " is especially great when the evidence involves
bad acts against children." ). The car-chase incident
was not an act specifically directed against a child. But the
evidence that Harris attempted to hit an adult with her car
and put an infant at risk by doing so portrayed Harris as a
person who, when angry, loses control and disregards how her
actions may affect others, specifically children. Indeed,
although the prosecutors did not refer to the car-chase
incident in opening or closing arguments, they did use the
incident to specifically rebut Harris's sister's
trial testimony that Harris was a loving and good mother to
S.H. and her own two children. And the theme of Harris's
frustration and anger, and its impact on her behavior,
continued through the prosecution's initial and rebuttal
We recognize that, unlike Casias where Casias was at
home alone with the baby, the prosecution here introduced
noncircumstantial evidence about what caused S.H.'s
injuries on the morning of August 22. Through L.L.'s
testimony, the testimony of child hearsay witnesses to whom
L.L. made statements after S.H. died, and video of L.L.'s
forensic interview, the prosecution introduced L.L.'s
statements that on the morning of August 22 Harris was upset
with S.H., threw S.H. down the stairs, and was "
whooping" him. However, understandably based on
L.L.'s age, this testimony was often unclear, confusing,
and difficult to follow. Ultimately, it was nearly impossible
to discern whether L.L.'s statements about what happened
to S.H. were about what happened to him during the July 25
accidental fall or the August 22 incident which formed the
basis of the charges. In addition, both L.L. and O.W. gave
several differing accounts of what happened on the morning of
August 22 to different people at different times, making
their various accounts less credible.
We are aware of the many challenges inherent in child-witness
testimony. However, where, as here, that testimony is the
only noncircumstantial evidence presented regarding the cause
of S.H.'s injury, those inherent challenges cannot simply
be dismissed because they may be understandable or
anticipated. Instead, we must consider the shortcomings of
child-witness testimony when judging the strength of the
prosecution's evidence. Here, the nature of the
child-witness evidence combined with the sharply conflicting
expert testimony as to the cause of S.H.'s injuries leads
us to conclude that the prosecution's case was not so
strong that we are fairly assured that the improperly
admitted evidence did not substantially sway the jury to its
verdict. See id. at ¶ 69.
We also recognize that the jury found Harris guilty of child
abuse -- resulting in death based on two alternative theories
of liability: directly causing S.H.'s injuries or
permitting him to be placed in a situation that posed a
threat of injury. This does not alter our conclusion that
there was a reasonable probability the erroneously admitted
evidence contributed to her conviction.
For example, if the jurors had, as requested by the
prosecution, (1) found Harris guilty of child abuse --
resulting in death based only on the theory that she
permitted S.H. to be unreasonably placed in a situation that
posed a threat to his life and (2) so found based only on
evidence that she waited too long to take S.H. to the
hospital, admitting the car-chase evidence would have been
harmless error. In that situation, the central issue in the
case that the medical experts sharply disputed (what type of
impact caused the fatal hematoma) would have been irrelevant.
Instead, Harris's culpability would have been based only
on waiting too long to seek medical treatment for the initial
injury, regardless of how that injury occurred. Without a
sharp dispute about the central issue in the case, the case
would not have been close, and the admission of the car-chase
incident would have been harmless as a result.
But, the jury indicated that it found Harris guilty of child
abuse -- resulting in death because she both directly caused
S.H.'s injury and permitted him to be placed in
a situation that posed a threat of injury. And it is
impossible for us to know what evidence the jury relied on in
making those findings. Therefore, it is still reasonably
probable that the car-chase incident contributed to
Harris's conviction, and the erroneous admission of that
evidence was not harmless.
Harris asserts that several of the trial court's other
rulings were erroneous. Because we reverse and remand for a
new trial, and reviewing these alleged errors would require
us to analyze evidence and circumstances that may be
different at a new trial, we do not address these alleged
errors. However, to give the trial court guidance for the new
trial, we do comment on Harris's argument that she was
entitled to a unanimity instruction.
Harris argues that because the prosecution introduced
evidence of multiple discrete acts that could have each
supported a conviction for child abuse -- resulting in death
under either theory of criminal liability, she was entitled
to an instruction requiring the jury to agree on the specific
act that supported the conviction. According to Harris, such
an instruction was necessary to ensure that the jury's
verdict was unanimous.
[¶39] A jury verdict must be unanimous,
§ 16-10-108, C.R.S. 2014, and a trial court must
properly instruct the jury to ensure that a conviction is the
result of a unanimous verdict, see People v.
Childress, 2012 COA 116, ¶ 28, ( cert. granted
on other grounds June 24, 2013). On the one hand, in a
case where there is evidence of multiple discrete acts of
child abuse and any one of those acts could support a guilty
verdict on the single charged child abuse count, the court
should provide the jury with an instruction " requiring
it to agree on the act supporting the conviction or find that
[the] defendant had committed every alleged act of child
abuse." Childress, ¶ 43. On the other
hand, if all of the alleged criminal acts occur in a single
transaction, a unanimity instruction may not be necessary.
See Melina v. People, 161 P.3d 635, 639-40
(Colo. 2007); People v. Perez-Hernandez, 2013 COA
160, ¶ 56, 348 P.3d 451.
Because different evidence may be presented at a new trial,
we cannot decide whether the evidence of child abuse that is
presented at the new trial will comprise a single transaction
or several discrete acts of alleged child abuse. We note the
relevant law only to assist the trial court should the issue
arise at the new trial.
The judgment of conviction is reversed and the case is
remanded to the trial court for a new trial.
TERRY and JUDGE NIETO concur.
[*]Sitting by assignment of the Chief Justice
under provisions of Colo. Const. art. VI, § 5(3), and
§ 24-51-1105, C.R.S. 2014.
There was conflicting evidence as to where
L.L. was throughout the car-chase incident.
The prosecution argued that throwing S.H.
down the stairs or the delay in getting him to the
hospital could each support the child abuse -- resulting in