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People v. Weeks

Court of Appeals of Colorado, Third Division

June 18, 2015

The People of the State of Colorado, Plaintiff-Appellee,
Mark Weeks, Defendant-Appellant

          Logan County District Court No. 10CR141. Honorable Michael K. Singer, Judge.

         Cynthia H. Coffman, Attorney General, Jay C. Fisher, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

         Walta, LLC, Mark G. Walta, Denver, Colorado, for Defendant-Appellant.

         Opinion by JUDGE DAILEY. Webb and Plank[*], JJ., concur.


         TDAILEY, JUDGE.

          [¶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.

         I. Background

          [¶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" [1] 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 accidental trauma."

          [¶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 G.W.);
o callously mistreated A.M. in the past; [2]
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; [3] and,
o not displayed any emotion at the hospital,[4] 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.

         II. 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. We disagree.

          [¶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.

         The trial court instructed the jury, on each occasion when the particular evidence was admitted and again at the end of trial, that

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 accident.[5]

          [¶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 " [1] it is logically relevant for some reason apart from an inference that the defendant acted in conformity with a character trait, and [2] 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).[6]

          [¶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. Id.

          [¶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 evidence). 10

          [¶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 of chances).

          [¶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 character."

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." (emphasis added)).

          [¶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[7]), 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, ...

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