County District Court No. 10CR141. Honorable Michael K.
H. Coffman, Attorney General, Jay C. Fisher, Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee.
LLC, Mark G. Walta, Denver, Colorado, for
by JUDGE DAILEY. Webb and Plank[*], JJ., concur.
[¶1] Defendant, Mark Weeks, appeals the
judgment of conviction entered on jury verdicts finding him
guilty of first degree murder (causing the death of a child
under the age of twelve by one in position of trust) and
child abuse (knowing or reckless conduct, resulting in
death). We affirm.
[¶2] Defendant's convictions arose out
of the death of his three-year-old daughter, A.M. Defendant
lived in a trailer home with his wife, G.W., who was not
A.M.'s mother but who had raised A.M. from birth.
[¶3] One morning, defendant and G.W.
discovered that A.M., who was potty-trained but had been
regressing for a few weeks, had urinated in her bed.
Defendant took A.M. outside naked to wash her off under a
cold-water spigot. He sat her down on the floor of the
trailer, told her to lie there, and went to a convenience
store to buy some cigarettes.
[¶4] G.W. spanked A.M. while defendant was
gone. Varying accounts exist of what happened when he
returned. Initially, both G.W. and defendant said that A.M.,
angry about being put in a time out, had " flopped"
backwards and hit her head on the stove. Later, however, G.W.
said that defendant had picked A.M. up by her biceps, yelled
at her about where she was supposed to go to the bathroom,
shook her, and " slammed"  her head into the
plywood wall of the trailer. It was only after defendant put
her down on the floor that A.M. fell backward and hit her
head on the stove. (G.W. testified similarly to this latter
account at trial, saying then, however, that she did not
think defendant pushed A.M. against the wall very hard.)
[¶5] At some point, A.M. became
unresponsive, and defendant and G.W. dressed her and drove
her to the hospital. Medical personnel determined that A.M.
had suffered a skull fracture and a subdural hematoma.
Additionally, her left eye had also been " blown
out" of her skull, causing retinal hemorrhaging.
Although she was airlifted to Denver for treatment, A.M. was
declared brain dead the next day and taken off life support.
The autopsy revealed that she also had bruised lungs, a
healing rib fracture, and extensive bruising all over her
body. The pathologist who conducted the autopsy concluded
that A.M.'s injuries were " not consistent with
[¶6] A grand jury indicted defendant and
G.W. on charges of first degree murder (causing the death of
a child under the age of twelve by one in position of trust)
and child abuse resulting in death (knowing or reckless
conduct). In exchange for her testimony against defendant,
however, G.W. was given immunity from prosecution for the
allegedly false statements she made before the grand jury and
allowed to plead guilty to a single, lesser charge of child
abuse resulting in death (criminally negligent conduct), for
which she was sentenced to a term of twelve years
imprisonment in the custody of the Department of Corrections.
[¶7] During opening statements, defense
counsel said that the evidence would show that G.W. had
caused A.M.'s head injuries or that they were possibly
the result of an accidental fall.
[¶8] On the question of who was responsible
for injuring A.M., the prosecution presented, in addition to
G.W.'s testimony, evidence that defendant had
o strictly disciplined A.M. and G.W.'s two daughters from
a prior relationship, N.B. and K.B., who were eleven and
eight years old, respectively, at the time of trial (N.B. and
K.B. lived with their father but would visit defendant and
o callously mistreated A.M. in the past; 
o previously become verbally and sometimes physically abusive
to N.B., K.B., the family cats, and a puppy, after they had
urinated or vomited in defendant's home;
o exchanged text messages with G.W. about their frustration
with A.M.'s potty training regression as well as about an
injury to her eye. At one point, G.W. texted, " I told
mom and dad that [A.M.] went to the bathroom and you got up
to flush the toilet and we didn't see her and your knee
got in her eye." Defendant responded, " Okay.
I'm done with her though. She's on her own,"
which prompted G.W. to remind defendant that A.M. was only
three years old;
o attempted to conceal his misconduct in connection with
A.M.'s injuries;  and,
o not displayed any emotion at the hospital, not wanted to
kiss A.M. goodbye before she was airlifted to Denver, and
only been concerned about getting his iPhone back from police
while signing forms to donate A.M.'s organs.
[¶9] On whether A.M.'s head injury was
caused by her " flopping" into the stove, the
prosecution presented the testimony of several medical
experts, all of whom agreed that A.M.'s head injury
required great force and was caused by nonaccidental trauma.
All but one of the experts agreed her injury could not have
been caused by A.M.'s " flopping" into the
stove. One expert also said she would diagnose A.M. with
physical child abuse and said that A.M.'s bruising was
" some of the worst . . . [she had] ever seen."
[¶10] Defendant did not testify. Defense
counsel called only one witness, a defense investigator who
testified that the trailer's plywood wall, which was only
one-eighth of an inch thick, did not have any signs of damage
or any of A.M.'s skin or hair on it.
[¶11] In closing argument, defense counsel
largely abandoned his theory that G.W. caused A.M.'s
injuries. He asserted, instead, that although the evidence
indicated that A.M.'s injuries were not the result of an
accident, it was unclear from that evidence who had inflicted
the injuries, but it was not defendant.
[¶12] The jury convicted defendant as
charged, and the trial court sentenced him on the first
degree murder count to a controlling term of life
imprisonment without the possibility of parole in the custody
of the Department of Corrections.
Evidence of Other Acts
[¶13] Defendant contends that reversal is
required because the trial court erroneously admitted
evidence of other acts involving N.B., K.B., and family pets.
[¶14] The trial court allowed the
prosecution to introduce evidence that defendant had
o forced N.B. to sit in the living room and angrily yelled
for ten minutes at her for vomiting in the middle of the
night and waking him up to assist her;
o on multiple occasions put K.B. in time out when she would
urinate in her pants, refused to help her change, and told
her father that he was " too easy on her" when she
had wet the bed or needed to urinate during the night;
o disciplined the family's pet cats when they had
urinated in the house by grabbing them by their throats and
holding them up against the wall; and
o slammed a puppy's head against a wall to punish it for
urinating on the floor, prompting his ex-wife to give the
puppy away out of fear for its safety.
trial court instructed the jury, on each occasion when the
particular evidence was admitted and again at the end of
o the evidence of the incidents with N.B., K.B., and the cats
was admitted only for the purposes of showing intent,
knowledge, and absence of mistake or accident; and,
o the evidence of the incident with the puppy was admitted
only for the purpose of showing an absence of mistake or
[¶15] CRE 404(b) governs the admission of
evidence of other acts. Under that rule, evidence of other
acts is inadmissible if its relevance depends only
on an inference that the person has a bad character and acted
in conformity therewith. People v. Pollard, 2013 COA
31M, ¶ 11. Other act evidence is admissible if "
 it is logically relevant for some reason apart from an
inference that the defendant acted in conformity with a
character trait, and  the probative value of the evidence
for that other reason is not substantially outweighed by the
other policy considerations of [CRE] 403." People v.
Rath, 44 P.3d 1033, 1038 (Colo. 2002).
[¶16] A trial court has considerable
discretion in determining whether evidence has logical
relevance in tending to prove a material fact and also in
balancing its probative value against its potential for
unfair prejudice. People v. Orozco, 210 P.3d 472,
477 (Colo.App. 2009). On appeal of a trial court's ruling
admitting other act evidence, we accord the evidence the
maximum probative value attributable to it by a reasonable
fact finder and the minimum unfair prejudice to be reasonably
expected; we will uphold the trial court's ruling unless
it was manifestly arbitrary, unreasonable, or unfair.
[¶17] Defendant argues, as he did before the
trial court, that this evidence was irrelevant to the case
other than to show his propensity for anger, and that its
unfair prejudice outweighed any probative value.
[¶18] Initially, we note that use of other
act evidence to show intent, knowledge, and absence of
mistake or accident qualifies as a " proper"
purpose independent of the inference that a defendant acted
in conformity with a character trait. See CRE 404(b)
(including these as permissible purposes of other act
[¶19] The issue, then, is whether the
evidence was logically relevant to show intent, knowledge, or
absence or mistake or accident, and, if so, whether the trial
court was nonetheless compelled to exclude the evidence under
CRE 403 as unfairly prejudicial.
[¶20] Evidence is logically relevant if it
has " any tendency to make the existence of any fact
that is of consequence to the determination of the action
more probable or less probable than it would be without the
evidence." CRE 401.
[¶21] Contrary to the trial court's
determination, the evidence of the incidents involving N.B.,
K.B., and the cats was not relevant to show defendant's
mental state vis-a-vis his acts with A.M.
[¶22] " [W]here, as here, other act
evidence is offered to prove a mental state, 'the prior
conduct [must involve] the same intent that the
prosecution seeks to establish in the charged
offense.'" People v. Casias, 2012 COA 117,
¶ 42, 312 P.3d 208 (quoting People v. Spoto,
772 P.2d 631, 633 (Colo.App. 1988), aff'd, 795
P.2d 1314 (Colo. 1990)).
[¶23] In this case, as in Casias,
the prosecutor had to prove that defendant (1) engaged in
conduct which he was aware was practically certain to cause
A.M.'s death (the relevant standard for first degree
murder) and (2) was either aware (for knowing child abuse) or
consciously disregarded a substantial and unjustifiable risk
(for reckless child abuse) that his conduct could result in
serious bodily injury or death to A.M. See
Casias, ¶ ¶ 33-35. The division in
Casias concluded that, where the prosecution seeks
to introduce evidence of a defendant's prior abuse of one
child to show the defendant's knowledge or recklessness
in causing the death of another child, the acts of prior
abuse are not probative of a defendant's mental state
unless they resulted in serious bodily injury or death.
See id. at ¶ ¶ 43-50.
[¶24] Consistent with the decision in
Casias, we conclude that, because no evidence was
presented that K.B., N.B., or the cats suffered injury or
death as a result of defendant's prior acts, the evidence
involving them was not relevant to establishing his intent or
knowledge during the incident with A.M.
[¶25] However, the evidence of
defendant's other acts vis-a-vis K.B., the cats, and the
puppy was relevant, independent of any impermissible
inference of bad character, to show that A.M.'s death
resulted not from accidental contact with the stove, but from
an act committed by defendant.
[¶26] When a defendant asserts that a victim
was injured accidentally (as defendant did here, in his
statements to the police), prior similar acts may be relevant
to rebut this argument and show that the defendant caused the
injury. See People v. Fry, 74 P.3d 360,
370-71 (Colo.App. 2002); see also People v.
Christian, 632 P.2d 1031, 1036-37 (Colo. 1981).
[¶27] Indeed, " [t]here is broad
consensus that similar acts evidence may be introduced on a
doctrine of chances rationale to prove the defendant
committed an actus reus when the defendant asserts that he
did not cause the social harm . . . . This type of evidence
is admitted under several of the familiar category labels --
absence of mistake or accident, modus operandi, or plan or
scheme -- but probability based reasoning underlies its
relevance." Mark Cammack, Using the Doctrine of
Chances to Prove Actus Reus in Child Abuse and Acquaintance
Rape : People v. Ewoldt Reconsidered, 29 U.C.
Davis L.Rev. 355, 386 (1996); see also
Casias, ¶ 51 (evidence of prior similar acts is
admissible to disprove a claim of accident under the doctrine
[¶28] In People v. Spoto, 795 P.2d
1314 (Colo. 1990), the supreme court provided the following
illustration of how the doctrine of chances works:
" [S]uppose that the defendant is charged with murdering
his wife. The wife was found dead in her bath tub. The
defendant claims that she accidentally drowned while bathing.
In this situation, there is both English and American case
law admitting evidence of similar deaths of the
defendant's previous wives. The courts reason that the
credibility of the accident theory decreases as the number of
similar incidents increases. The intermediate inference . . .
is objective or statistical unlikelihood under the doctrine
of chances rather than the defendant's subjective
Id. at 1319 (quoting Edward J. Imwinkelried,
Uncharged Misconduct Evidence § 4:01 (1984));
see People v. Everett, 250 P.3d 649, 657
(Colo.App. 2010) ( " [T]he use of the doctrine of
chances creates reasoning that is independent of the
intermediate inference of the defendant's bad character:
the evidence of other acts leads to the intermediate
inference that it is objectively improbable that the accused
would be involved in multiple unusual events, which, in turn,
leads to the ultimate inference that the accused
committed the actus reus of the charged crime."
[¶29] To admit other act evidence pursuant
to the doctrine of chances to prove the actus reus (or
defendant's identity as the perpetrator of the
offense), three conditions must be satisfied:
(1) the evidence of other acts must be roughly similar to the
charged crime; (2) the number of unusual occurrences in which
the defendant has been involved must exceed the frequency
rate for the general population; and (3) there must be a real
dispute between the prosecution and the defense over whether
the actus reus occurred. See Everett, 250
P.3d at 658.
[¶30] Those conditions are satisfied with
respect to the evidence involving K.B., the cats, and the
puppy. In each instance, defendant lost his temper and became
verbally and sometimes physically abusive when the child or
pets urinated in the house. His acts in putting or slamming
the animals against the wall were, in particular, strikingly
similar to the alleged incident involving A.M. In our view,
the incidents were sufficiently similar and numerous to be
probative of an issue that was in dispute, that is, whether
A.M. was injured in a fall against the stove or as a result
of being slammed against the wall by defendant. Thus, the
other act evidence involving K.B., the cats, and the puppy
tended to prove that A.M.'s injuries were caused by
defendant's acts rather than by an accident. See
Fry, 74 P.3d at 370-71 (evidence of other violent
outbursts toward other women relevant to show that the
defendant hit the victim and that she did not sustain her
injuries from an accidental fall); cf.
Christian, 632 P.2d at 1036-37 (evidence of other,
similar child abuse incidents was admissible to prove that
the defendant injured his daughter and that her injuries were
not attributable to a " near automobile collision"
or " her falling or thrashing about in her crib" ).
[¶31] Defendant asserts, however, that the
evidence involving the cats and puppy were not probative of
any material fact because they involved animals rather than
children. We are not persuaded.
[¶32] Several commentators have noted a link
between animal abuse and child abuse. See Susan
Crowell, Note, Animal Cruelty As It Relates to Child
Abuse: Shedding Light on A 'Hidden' Problem, 20
J. Juv. L. 38, 50 (1999) (" The reasons people abuse
children are very similar to the reasons people abuse
animals. . . . It is important to realize that whether abuse
is targeted at an animal or a person, the issue is the same:
power and preying on the vulnerable. The choice of the victim
is opportunistic." (internal quotation marks omitted));
Naseem Stecker, Domestic Violence and the Animal Cruelty
Connection, 83 Mich. B.J. 36 (Sept. 2004) (noting that
there have been " three decades of studies on the
human-animal connection that show the clear link between
animal cruelty, domestic violence, child abuse, and other
criminal activity" ); Melissa Trollinger, The Link
Among Animal Abuse, Child Abuse, and Domestic Violence,
30 Colo. Law. 29 (Sept. 2001) (" Although the research
is fairly new, several studies have documented a link among
animal abuse, domestic violence, and child abuse." ).
[¶33] At least one commentator has suggested
that because of this link, evidence of animal abuse should
usually be admissible in child abuse cases. See
Angela Campbell, Note, The Admissibility of Evidence of
Animal Abuse in Criminal Trials for Child and Domestic
Abuse, 43 B.C. L.Rev. 463, 463-64 (2002) (noting that,
because animal abuse is " highly related to other types
of abuse in the same home," evidence of " prior
animal abuse should be admissible under Federal Rule of
Evidence 404(b) in criminal trials for child and domestic
abuse, subject only to the Federal Rule of Evidence 403
balancing test" ); cf. People v.
Farley, 33 Cal.App.3d Supp. 1, 109 Cal.Rptr. 59, 62
(Cal. App. Dep't Super. Ct. 1973) (" It is obvious
that the two cases cited . . . in respect to cruelty to
children are the most closely analogous to our present case
of cruelty to animals." ).
[¶34] We agree with this approach. In this
case, evidence of animal abuse was relevant because the
animals and K.B. were all prone to having urination accidents
in the home, and the defendant's frustration with and
violent reaction to those accidents was very similar.
[¶35] Even relevant evidence may, however,
be excluded under CRE 403 as unfairly prejudicial. Evidence
is " unfairly" prejudicial if it has " 'an
undue tendency to suggest a decision on an improper basis,
commonly but not necessarily an emotional one, such as
sympathy, hatred, contempt, retribution, or
horror.'" Masters v. People, 58 P.3d 979,
1001 (Colo. 2002) (quoting People v. Dist. Court,
785 P.2d 141, 147 (Colo. 1990)). For otherwise relevant
evidence to be excludable, ...