June 18, 2015
The People of the State of Colorado, Plaintiff-Appellee,
Mark Weeks, Defendant-Appellant
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, however, the danger of unfair
prejudice must substantially outweigh the legitimate
probative value of the evidence. CRE 403.
[¶36] Affording, as we must on appeal, the
maximum probative value that a reasonable fact finder might
give the evidence and the minimum unfair prejudice to be
reasonably expected, People v. James, 117 P.3d 91,
94 (Colo.App. 2004), we cannot conclude that the trial court
was compelled to exclude the evidence because it was of such
a character that the jury would have overlooked its
legitimate probative force due to an overmastering hostility
toward defendant. Neither K.B. nor the animals were seriously
injured, if injured at all, by defendant.
[¶37] Thus, we perceive no abuse of the
court's discretion in admitting the other act evidence
involving K.B., the cats, and the puppy for the purpose of
disproving an accident defense.
[¶38] Our analysis so far has not addressed
the other act evidence involving N.B. (i.e., angrily yelling
at her once when she vomited in the house). In our view, the
admissibility of this evidence presents a much closer
question. We need not, however, decide it because, even if we
assume that the court erred in admitting the evidence, the
error would not warrant reversal.
[¶39] Where a court erroneously admits other
act evidence, the error will be disregarded as harmless
unless there is a reasonable probability that the error
contributed to the defendant's conviction.
Casias, ¶ 61. " [A] reasonable
probability" does not mean that it is " more likely
than not" that the error caused the defendant's
conviction; rather, it means only a probability sufficient to
undermine confidence in the outcome of the case. Id.
at ¶ 63.
[¶40] To determine the extent to which
erroneously admitted other act 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. People v. Harris,
2015 COA 53, ¶ 27. " However, the single most
important factor in determining whether an error was harmless
is whether the case was close. 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. (citation omitted).
[¶41] In our view, the evidence involving
N.B. had little or no prejudicial impact, given (1) its
similarity to the properly admitted evidence of
defendant's actions vis-a-vis K.B., the cats, and the
puppy; and (2) the strength of the prosecution's case
[¶42] In this latter regard, this was not a
close case as to whether AM.'s injuries were caused by an
accident or by defendant:
o the doctors uniformly opined that A.M.'s injuries were
not caused by an accident;
o although there was evidence that G.W. spanked A.M., there
was no evidence that the spanking injured A.M. (indeed,
defendant told his grandmother that A.M. was "
fine" when he returned from the convenience store);
o G.W. testified that defendant slammed A.M. into the wall;
o the properly admitted evidence of other acts involving
K.B., the cats, and the puppy tended to show that defendant
caused A.M.'s injuries;
o defendant appeared indifferent to A.M.'s fate at the
hospital, while A.M. was being flown away in a flight for
life helicopter, and while he signed a form to donate her
o defendant was overheard making statements about he and G.W.
getting their " stories straight" (i.e., that A.M.
fell off a roof or against the stove) to explain A.M.'s
[¶43] Because, in our view, the impact of
any error in admitting the other act evidence involving K.B.
would not undermine confidence in the outcome of the case,
the error, if any, was harmless and would not warrant
[¶44] Defendant contends that his conviction
and sentence for child abuse must be reversed or vacated
because (1) the court's elemental jury instruction on
child abuse effected a constructive amendment of the charge
contained in the indictment and (2) there was insufficient
evidence of a causal connection between defendant's
pattern of conduct and A.M.'s death. We are not
[¶45] The statutory provision under which
defendant was charged delineates three categories of child
abuse, i.e., causing injury to a child's life or health;
permitting a child to be unreasonably placed in a situation
that poses a threat of injury to the child's life or
health; or engaging in a continued pattern of conduct having
A person commits child abuse if such person causes an injury
to a child's life or health, or permits a child to be
unreasonably placed in a situation that poses a threat of
injury to the child's life or health, or engages in a
continued pattern of conduct that results in malnourishment,
lack of proper medical care, cruel punishment, mistreatment,
or an accumulation of injuries that ultimately results in the
death of a child or serious bodily injury to a child.
§ 18-6-401(1)(a), C.R.S. 2014.
[¶46] Defendant was charged in the
indictment with all three categories of abuse. Varying
slightly from the text of section 18-6-401(1)(a), however,
the indictment did not list malnourishment and lack
of proper medical care as the effects of defendant's
continued pattern of conduct against A.M.
[¶47] The elemental instruction given to the
jury did not reference the first two categories of abuse, but
only the last one (" engaging in a continued pattern of
conduct" ). And, as pertinent here, the instruction
included, among other things, the two statutory effects
(malnourishment and lack of proper care) that had been
omitted from the indictment.
[¶48] Defendant asserts that the inclusion
of " malnourishment" and " lack of proper
medical care" as possible statutory effects, or bases,
upon which the jury could find him guilty of child abuse
constituted a constructive amendment of the charges. We
[¶49] Ordinarily, a trial court may instruct
the jury consistently with the evidence presented at trial,
see People v. Silva, 987 P.2d 909, 917
(Colo.App. 1999) (" The trial court has a duty to
instruct the jury properly concerning all the issues
supported by the evidence." ), and a prosecutor may
comment on that evidence. See Domingo-Gomez v.
People, 125 P.3d 1043, 1048 (Colo. 2005) (prosecutor may
argue reasonable inferences from the evidence). A court's
instructions cannot, however, be permitted to "
constructively amend" the charges by changing an element
of the charged offense. See People v.
Rodriguez, 914 P.2d 230, 257 (Colo. 1996); People v.
Huynh, 98 P.3d 907, 911 (Colo.App. 2004).
[¶50] As noted above, the child abuse
statute delineates various ways in which a person can commit
child abuse, including:
o engaging in a continued pattern of conduct that results in
malnourishment ; and
o engaging in a continued pattern of conduct that results in
lack of proper medical care.
[¶51] Neither of these was alleged in
defendant's indictment. Instead, the prosecutor charged
him only with " [e]ngag[ing] in a continued pattern of
conduct that result[ed] in . . . cruel punishment,
mistreatment, or an accumulation of injuries that ultimately
result[ed] in the death of " A.M. -- three other
means of committing child abuse as a pattern of conduct.
§ 18-6-401(1)(a) (emphasis added).
[¶52] Because the instruction expanded the
bases upon which defendant could be convicted beyond those
for which he was charged, the instruction constructively
amended the indictment. See People v.
Weinreich, 98 P.3d 920, 923 (Colo.App. 2004)
(constructive amendment occurred where " [t]he
information charged one form of child abuse . . . and the
jury instruction stated another" ), aff'd,
119 P.3d 1073 (Colo. 2005); see also People v.
Petschow, 119 P.3d 495, 503-04 (Colo.App. 2004)
(constructive amendment occurred where the information
charged the defendant with one form of aggravated motor
vehicle theft, but the elemental instruction added an
alternative element that defined an uncharged crime).
[¶53] The remaining question, though, is
whether defendant is entitled to a new trial on this ground.
In many instances, the answer would be " yes."
See Huynh, 98 P.3d at 911 (" [A]
constructive amendment to the charges is reversible per
se." ). But because defendant did not object in the
trial court to the jury instruction, reversal is not
warranted, even on constructive amendment grounds, in the
absence of plain error. Weinreich, 119 P.3d at 1078.
[¶54] To qualify as plain error, an error
must be both " obvious and substantial." Hagos
v. People, 2012 CO 63, ¶ 14, 288 P.3d 116. This
means that an error must be so clear-cut that a trial judge
should have been able to avoid it without benefit of
objection, People v. Pollard, 2013 COA 31M, ¶
39, and that it must be " seriously prejudicial,"
that is, it must have so undermined the fundamental fairness
of the trial as to cast serious doubt on the reliability of
the defendant's conviction, Hagos, ¶ 14.
[¶55] Even if we assume the error was
obvious, it was not " seriously prejudicial." As
argued by the People, the constructive amendment would have
had little, if any, effect on the jury's verdict on the
child abuse count because there was no evidence in the record
suggesting that defendant engaged in a continued pattern of
conduct resulting in malnourishment or lack of proper medical
[¶56] There was evidence of only two types
of conduct that could even relate to the concepts of
malnourishment and lack of proper medical care:
o defendant (or G.W.) would punish A.M. if she snuck into the
refrigerator to get food or water without asking; and
o defendant and G.W. may have attempted to treat A.M.'s
head injury with an ice pack and tissues before taking her to
the hospital, although G.W. denied doing so.
[¶57] These facts could not support a
finding of a continued pattern of conduct involving
malnourishment or lack of proper medical care. To say that
A.M. had been punished for sneaking food is not the same as
saying she was malnourished; to the contrary, the autopsy
report -- which was admitted into evidence -- described A.M.
as " a well-developed, well-nourished female." And
the lack of proper medical care on one occasion would not
establish a " pattern," within the common and
ordinary meaning of that term. See State v.
Sanchez-Diaz, 683 N.W.2d 824, 832 (Minn. 2004) (
Although the domestic abuse statute does not " specify a
minimum number of incidents which must be proven in order to
find a 'pattern'[,] . . . a lone act . . . cannot
constitute a pattern." (internal quotation marks
omitted)); see also People v. Simon, 266
P.3d 1099, 1108 (Colo. 2011) (" A 'pattern'
simply describes a series of two or more discrete acts . . .
[¶58] Although the prosecutor pointed out
both of these facts during opening and closing argument, she
never asserted that they supported malnourishment or lack of
proper medical care as a basis for finding the prescribed
pattern of conduct. Instead, she used this evidence only to
argue that defendant had mistreated A.M. and was reluctant to
seek medical care outside of the home, even after realizing
she was seriously injured.
[¶59] Because the jury was given no
evidentiary basis upon which to find defendant guilty of
" engag[ing] in a continued pattern of conduct that
resulte[d] in malnourishment, [or] lack of proper medical
care," § 18-6-401(1)(a), the jury likely
disregarded the challenged parts of the instruction rather
than forcing the evidence to fit those parts. See
People v. Manzanares, 942 P.2d 1235, 1241-42
(Colo.App. 1996) (where there was no evidence that the
defendant initiated the fight and the prosecutor did not
mention the instruction in closing argument, unwarranted
initial aggressor instruction was harmless). Certainly, no
plain error was occasioned by the erroneous inclusion of the
superfluous terms (i.e., " malnourishment" and
" lack of proper care" ) in the elemental
instruction on child abuse. Cf. People v.
Ujaama, 2012 COA 36, ¶ 50, 302 P.3d 296 (no plain
error in including superfluous limitations on the right to
exercise self-defense in self-defense instruction).
Sufficiency of the Evidence
[¶60] Defendant contends that the evidence
is insufficient to support his conviction because, although
the jury was instructed on the " engaging in a
continuing pattern" category of child abuse, there was
no proof that A.M.'s death was caused by the cumulative
effects of the pattern(s) of abuse in which he engaged, as
opposed to a discrete act -- allegedly slamming her head into
[¶61] The People concede that A.M. died from
her brain injury, which was the result of a single blow to
the head. But, they argue, outside of the accumulation of
injuries part (which is inapplicable here), section
18-6-401(1)(a) is not concerned with the " cumulative
effects" of a pattern of abuse; it requires only proof
of an enumerated pattern of abuse, other than that
involving an accumulation of injuries, and, once the pattern
is shown, proof that any one or more of the acts underlying
the pattern caused death (or injury) to a child will support
an enhanced sentence under section 18-6-401(7)(a).
Consequently, the People assert, section 18-6-401(1)(a) and
(7)(a) were satisfied by evidence that defendant engaged in
an enumerated pattern of abuse which culminated in a single
act (slamming A.M.'s head against the wall) that resulted
in A.M.'s death.
[¶62] The precise sufficiency of evidence
issue raised by defendant, and responded to by the People,
turns on an issue of statutory interpretation, which is a
question of law that we must independently determine.
See People v. Campos, 2015 COA 47, ¶
10, 351 P.3d 553.
[¶63] In interpreting a statute, our task is
to ascertain and give effect to the intent of the General
Assembly. Dubois v. People, 211 P.3d 41, 43 (Colo.
2009). To discern the legislative intent, we look first to
the language of the statute itself, People v.
Summers, 208 P.3d 251, 253-54 (Colo. 2009), reading
words and phrases in context and construing them according to
rules of grammar and common usage. People v. Diaz,
2015 CO 28, ¶ 12, 347 P.3d 621.
[¶64] " When the statutory language is
clear and unambiguous, we interpret the statute as written
without resort to interpretive rules and statutory
construction." People v. Apodaca-Zambori, 2013
COA 29, ¶ 16. But " [w]hen the language of a
statute is susceptible of more than one reasonable
understanding and is therefore considered ambiguous,"
People v. Jones, 2015 CO 20, ¶ 10, 346 P.3d 44,
" a court must look beyond the language [of the statute]
and consider other factors, such as the statute's
legislative history and the objective sought to be achieved
by the legislation," People v. Lovato, 2014 COA
113, ¶ 23, 357 P.3d 212.
[¶65] Section 18-6-401(1)(a) provides, as
pertinent here, that
[a] person commits child abuse if such person . . . engages
in a continued pattern of conduct that results in
malnourishment, lack of proper medical care, cruel
punishment, mistreatment, or an accumulation of injuries that
ultimately results in the death of a child or serious bodily
injury to a child.
[¶66] Defendant would have the last phrase
(" that ultimately results in the death of a child or
serious bodily injury to a child" ) apply to each of the
enumerated " patterns of conduct" (i.e., those
causing malnourishment, lack of proper medical care, cruel
punishment, mistreatment, or an accumulation of injuries).
The People would have that phrase apply only to the last
pattern of conduct (i.e., that causing an accumulation of
[¶67] Under the rule of grammar known as the
last antecedent rule, " relative and qualifying words
and phrases, where no contrary intention appears, are
construed to refer solely to the last antecedent with which
they are closely connected." People v.
McPherson, 200 Colo. 429, 432, 619 P.2d 38, 40 (1980),
abrogated on other grounds by People v.
Crump, 769 P.2d 496, 499 (Colo. 1989); see
People in Interest of O.C., 2012 COA 161, ¶ 26,
312 P.3d 226 (last antecedent rule " provides that in
the absence of a contrary intention, referential and
qualifying words or phrases refer solely to the immediately
preceding clause" ). Under that rule, the last phrase
would, as the People argue, apply only to the last enumerated
pattern of abuse.
[¶68] However, that rule, though
well-established in Colorado law, was repudiated as a basis
for decision by the General Assembly in 1981. See
§ 2-4-214, C.R.S. 2014; People v. O'Neal,
228 P.3d 211, 214-15 (Colo.App. 2009) (reciting the history
of the rule in Colorado). Consequently, we cannot presume
that the legislature intended that the last phrase apply only
to the last enumerated pattern of abuse. See
People v. Stroud, 2014 COA 58, ¶ 21, 356 P.3d
903. Nor, however, can we presume that the last phrase
applies to all of the previously enumerated patterns of
abuse. See People v. Trujillo, 251 P.3d
477, 480 (Colo.App. 2010) (" [S]ection 2-4-214 does not
create a . . . presumption that qualifying words apply to all
preceding words or phrases." ).
[¶69] Because the last phrase could be read
as applying either to all of the enumerated patterns of abuse
or only to the last one, the statute is ambiguous.
Compare People v. Friend, 2014 COA 123M,
¶ 60 (concluding that, under section 18-6-401(1)(a),
each of the enumerated patterns of conduct must ultimately
result in death or serious bodily injury to a child),
with People v. Baca, 852 P.2d 1302, 1306
(Colo.App. 1992) (stating, in dicta, that only the pattern of
abuse resulting in an accumulation of injuries must
ultimately result in death or serious bodily injury). And,
because the statute is ambiguous, we can look to legislative
history to ascertain what the General Assembly intended to
achieve by its enactment.
[¶70] The statute's legislative history
reveals that the last phrase of section 18-6-401(1)(a)
(" ultimately results in the death of a child or serious
bodily injury to a child" ) applies only to the last
enumerated pattern of abuse (" an accumulation of
[¶71] The part of section 18-6-401(1)(a)
beginning with " engaging in a continued abuse
pattern" and continuing until the end of the sentence
was added by H.B. 91-1229. During a meeting of the House
Judiciary Committee, the bill's sponsor, Representative
Faye Fleming, stated the language originated in a division of
this court's opinion in People v. Barela, 689
P.2d 689, 690-91 (Colo.App. 1984). See Hearings on H.B.
91-1229 by the H. Judiciary Comm., 58th Gen. Assemb., 2d
Sess. (1991) (statement of Rep. Faye Fleming); see
also Idowu v. Nesbitt, 2014 COA 97, ¶ 36,
338 P.3d 1078 ( Courts give " 'substantial weight to
the sponsors' statements concerning a bill's
purpose.'" (quoting People v. Miller, 97
P.3d 171, 174 (Colo.App. 2003))).
[¶72] In Barela, the defendant was
convicted of manslaughter and felony child abuse. The
defendant's infant child had died from severe cerebral
edema (a progressive swelling of the brain caused by blunt
trauma). Also, he had (1) suffered six broken ribs and three
subdural hematomas that had occurred approximately a month
before he died and (2) been malnourished. See 689
P.2d at 690.
[¶73] On appeal, defendant challenged the
trial court's denial of a bill of particulars on the
manslaughter count -- that she " recklessly caused the
death of her son" during a six-week period prior to his
death -- and the child abuse count -- that, " during
that same time period, [she] cruelly punished and placed the
child in a situation that endangered his life and health
intentionally, negligently, and knowingly." Id.
[¶74] A division of this court held that the
trial court did not abuse its discretion in denying a bill of
[with regard to the manslaughter count,] the evidence in this
case showed that not one single act, but rather, several
successive acts of defendant, contributed to [the
child]'s death. Thus, there was evidence of continuing
conduct of defendant which resulted in an accumulation of
injuries and which eventually resulted in [the child]'s
Regarding the charge of felony child abuse, there was
evidence of a continued pattern of conduct which resulted in
malnourishment, lack of proper medical care, cruel punishment
Id. at 691.
[¶75] Thus, the division in Barela
made a clear distinction between " a continued pattern
of conduct which resulted in malnourishment, lack of proper
medical care, cruel punishment and mistreatment" for
child abuse and " continuing conduct of defendant which
resulted in an accumulation of injuries and which eventually
resulted in [the child]'s death" for manslaughter.
[¶76] The General Assembly's reliance on
Barela as the source for the added language in the
child abuse statute reflects, in our view, an intent, as in
Barela, to maintain the distinction between the one
type of pattern whose cumulative effect must cause death (or
serious bodily injury) and the other types of patterns which
need not have that result.
[¶77] Our conclusion is supported by the
testimony of Jill-Ellyn Straus, who addressed, on behalf of
the Colorado District Attorneys Council, the purpose of H.B.
91-1229. In a Senate Judiciary Committee meeting, Ms. Straus
stated that the new language was intended to allow
prosecutors to file a single charge of child abuse covering
multiple acts of a similar nature rather than filing a
separate charge for each act. See Hearings on H.B.
91-1229 by the S. Judiciary Comm., 58th Gen. Assemb., 2d
Sess. (1991) (statement of Jill-Ellyn Straus); see
also People v. Cito, 2012 COA 221, ¶
¶ 21-22, 310 P.3d 256 (giving weight to the legislative
testimony of two witnesses from the Colorado District
Attorneys Council). She distinguished between the types of
enumerated patterns of abuse, stating, for example, that a
" failure to thrive" type of charge could be based
on a pattern of conduct resulting in malnutrition. She did
not mention the need to show death or serious bodily injury
to the child in connection with that type of pattern.
[¶78] In contrast, she explained that "
where a child suffers a series of injuries over time,"
and each injury might not warrant a child abuse charge, the
amended statute would allow for the prosecution of that
series of acts when they ultimately result in a serious
bodily injury or death.
[¶79] From this legislative history, we
conclude that the last phrase " ultimately results in
the death of a child or serious bodily injury to a
child" in section 18-6-401(1)(a) applies to only the
last enumerated pattern of abuse (" an accumulation of
injuries" ). The other enumerated patterns of abuse do
not require a showing that they resulted in death or serious
[¶80] Thus, under section 18-6-401(1)(a),
the prosecution needed to prove only that defendant engaged
in a pattern of conduct resulting in, as alleged and proven
here, cruel punishment or mistreatment of A.M. To enhance the
sentence for the crime, though, the People had to separately
prove that one or more acts underlying that pattern resulted
in death or injury to the child. § 18-6-401(7)(a).
[¶81] In this case, the People presented
ample evidence that defendant engaged in a pattern of conduct
that resulted in mistreatment and cruel punishment of A.M.
Witnesses testified that A.M. was afraid of defendant; other
witnesses testified that they had seen defendant scream at
A.M., hold her, naked, under a cold water spigot, shake her,
shove her, and slam her against a wall. Still other witnesses
testified that A.M.'s body was covered in bruises, she
had bruised lungs and a healing rib fracture, and she had
suffered a subdural hematoma from defendant slamming her
against the wall. From this evidence, a reasonable juror
could infer that defendant engaged in patterns of
mistreatment and cruel punishment under section
18-6-401(1)(a). In other words, to establish the substantive
offense, the prosecution was not required, as defendant
argues, to prove that the pattern -- as opposed to a discrete
incident -- caused A.M.'s death.
[¶82] Moreover, the prosecution presented
ample evidence that an act which was part of these patterns
(slamming A.M. into the wall) caused her death. Because these
patterns of abuse both resulted in mistreatment and cruel
punishment and culminated in A.M.'s fatal head injury,
the evidence was sufficient to support a finding that
defendant's abuse of A.M. resulted in her death for
purposes of sentencing under section 18-6-401(7)(a).
[¶83] Consequently, we conclude that the
evidence was sufficient to support the conviction and
sentence for child abuse.
[¶84] Defendant contends that the trial
court erred in permitting expert medical testimony that (1)
usurped the jury's factfinding role by stating that
A.M.'s injuries were the result of " nonaccidental
trauma," thus implying that they were knowingly or
recklessly inflicted; and (2) compared A.M.'s injuries to
those resulting from irrelevant accident scenarios. We are
[¶85] At trial, four medical experts
testified that A.M.'s injuries were nonaccidental in
o The emergency room physician who first treated A.M.
testified that he believed her injuries were nonaccidental,
and that it was " highly, highly, unlikely" that
they were caused by an accident, " [b]ut possible."
o A pediatrician who specialized in child abuse diagnosed
A.M. as having suffered nonaccidental child abuse trauma.
o The chief of pediatric neurosurgery who treated A.M. and
performed her brain surgery stated that her injuries were
" unequivocally" caused by nonaccidental trauma.
o A forensic pathologist testified that A.M. was a battered
child whose injuries did not appear to be accidental and
could not have occurred from falling, and that her skull
fracture was likely caused by " a bat or a pipe" or
" something broader."
[¶86] Additionally, three experts equated
A.M.'s injuries to those occurring in a car accident or
another high-impact accident:
o The pediatrician stated that A.M.'s injuries could only
have been caused by " a very severe mechanism,"
such as " [a] really bad car accident," and that
her rib fracture was an " impact injury" resulting
from a " high impact," such as a car accident or
running into a tree while skiing.
o The chief of pediatric ophthalmology who treated A.M.
testified that A.M.'s eye injury was " a high
velocity injury" caused by something such as a car
accident, falling from a great height, or a serious crush
o The forensic pathologist testified that the bleeding in
A.M.'s brain was caused by a force similar to a car
[¶87] Defendant did not object to any of
this testimony. Accordingly, we review his contentions for
plain error. See Ujaama, ¶ 38.
Usurping the Jury's Role
[¶88] An expert may offer testimony that
embraces an ultimate issue to be decided by the trier of
fact. CRE 704. An expert may not, however, usurp the
factfinding function of the jury. People v. Rector,
248 P.3d 1196, 1203 (Colo. 2011).
[¶89] In determining whether an expert has
usurped the jury's function, courts " examine a
number of factors . . . including but not limited to,
whether" : (1) the testimony was clarified on
cross-examination; (2) the testimony expressed an opinion of
the applicable law or legal standards, thereby usurping the
function of the court; (3) the jury was properly instructed
on the law and that it may accept or reject the expert's
opinion; and (4) an expert opined that the defendant
committed the crime or that there was a particular likelihood
that the defendant committed the crime. Id.
[¶90] As pertinent here, a medical expert
may testify in a child abuse case regarding whether a
child's injuries constitute medical child abuse
so long as (1) he or she does not give an opinion on whether
or not the defendant inflicted the injuries or whether the
injuries fit the legal definition of child abuse and
(2) the jury is properly instructed that it may accept or
reject the opinion. See id. An expert may also give
an opinion as to how a victim received his or her injuries
and whether a defendant's explanation of those injuries
is plausible. See Friend, ¶ 33 (Expert
testimony " helped the jury determine whether [the child
victim]'s death was caused by accidental or nonaccidental
[¶91] Although the pediatrician testified
that she had diagnosed A.M. with physical child abuse,
neither she nor any of the other experts in this case gave an
opinion regarding whether defendant inflicted A.M.'s
injuries or whether those injuries fit the legal definition
of child abuse. Instead, they testified only that A.M.'s
injuries were caused by nonaccidental trauma, thus
discrediting defendant's assertion that A.M.'s injury
resulted from a fall against the stove. Further, the jury was
properly instructed that it could accept or reject the
[¶92] Consequently, we discern no error, let
alone plain error, in the admission of expert testimony that
A.M. had been subjected to child abuse and nonaccidental
trauma. See Rector, 248 P.3d at 1203
(holding that it was not plain error to admit the testimony
of a doctor regarding his medical diagnosis of child abuse,
without instructing the jury on the different definitions of
medical and legal child abuse).
[¶93] Expert testimony is generally
admissible if (1) the scientific principles underlying the
testimony are reasonably reliable; (2) the expert is
qualified to opine on such matters; (3) the expert testimony
will be helpful to the jury; and (4) the evidence satisfies
CRE 403. Id. at 1200; see also CRE 702.
[¶94] Defendant argues that the expert
testimony comparing the force required to cause A.M.'s
head injury to that involved in car accidents and other
high-impact accidents was inadmissible because it was not
helpful to the jury. See Rector, 248 P.3d
at 1200 ( expert testimony is generally admissible if, among
other things, it will be helpful to the jury).
[¶95] " Helpfulness to the jury hinges
on whether the proffered testimony is relevant to the
particular case: whether it 'fits.' Fit demands more
than simple relevance; it requires that there be a logical
relation between the proffered testimony and the factual
issues involved in the litigation." People v.
Martinez, 74 P.3d 316, 323 (Colo. 2003).
[¶96] Contrary to defendant's assertion,
the expert testimony comparing the force that caused
A.M.'s injury to that of various accidents was logically
related to factual issues in the case. In his statements to
the police, defendant had asserted that A.M.'s head
injury was the result of an accidental fall into a stove.
Thus, expert testimony regarding the amount of force
necessary to cause such an injury was logically related to
whether the accident alleged here could have produced such
force and served as the basis for the experts' opinions
that the injuries were not accidental. See
id. at 324 (Similar testimony regarding accident
scenarios was admissible as the basis for the expert's
opinion because it " assists the jury in better
understanding the nature of a subdural hematoma: that it
occurs only in a few known situations. Similarly, the jury
understands that a simple fall is unlikely to cause a
subdural hematoma." ).
[¶97] Consequently, the court did not abuse
its discretion in permitting this testimony.
Request for Substitution of Counsel
[¶98] Finally, defendant contends that the
court deprived him of his right to conflict-free counsel, to
present a defense, and to testify when it denied his midtrial
request for a substitution of counsel. We disagree.
[¶99] To obtain substitute counsel, a
defendant must have " 'some well[-]founded reason
for believing that the appointed attorney cannot or will not
competently represent him.'" People v.
Kelling, 151 P.3d 650, 653 (Colo.App. 2006) (quoting 3
Wayne R. LaFave, Jerold H. Israel & Nancy J. King,
Criminal Procedure § 11.4(b), at 555 (2d ed.
[¶100] In evaluating a request for
substitute counsel, we employ a four-factor inquiry into (1)
the timeliness of the motion; (2) the adequacy of the
court's inquiry into the defendant's complaint; (3)
whether the attorney-client conflict is so great that it
resulted in a total lack of communication or otherwise
prevented an adequate defense; and (4) the extent to which
the defendant substantially and unreasonably contributed to
the underlying conflict with his attorney. People v.
Bergerud, 223 P.3d 686, 695 (Colo. 2010).
[¶101] We review a trial court's
decision to deny substitute counsel for an abuse of
discretion. Id. at 696 n.4.
[¶102] Shortly before the close of the
prosecution's case-in-chief, the prosecutor indicated
that she intended to introduce recent " jail calls"
between defendant and his grandmother that appeared to
undermine his theory that G.W. had caused A.M.'s
injuries. In those calls, he had indicated that A.M. had been
" fine" when he came home from the convenience
store and that the flopping story was not true.
[¶103] Defense counsel requested and was
granted a hearing pursuant to Bergerud. During the
hearing, defense counsel explained that the " jail
calls" had created a conflict because defendant wanted
to change his theory of defense. Further, counsel explained:
o early in the case, defendant had informed the defense
investigator that he wanted to tell the jury his " side
of the story," which appears to have somehow implicated
G.W.'s stepfather in A.M.'s death, but defense
counsel did not view that as a viable strategy;
o defendant had agreed with the defense being asserted at
trial, and that his " side of the story" was
inconsistent with that defense;
o defendant could not present his story without defense
counsel being called as a witness to rebut the charge that he
had recently fabricated it;
o defendant could not testify without the prosecutor
soliciting evidence of his prior felony convictions; and
o given these developments, counsel was concerned about his
ability to discharge his obligations to defendant.
[¶104] The trial court determined, in an
extensive written order, that the alleged conflict of
interest did not implicate his constitutional rights to
effective counsel, to remain silent, and to call witnesses.
Specifically, the court addressed each Bergerud
factor and recognized:
o Defendant's attorneys could not be called as witnesses
at a future trial if a mistrial was granted because their
statements would be hearsay.
o Potentially more harmful statements from defendant could be
tendered into evidence if the court allowed his attorneys to
o Defendant caused the conflict with his attorneys by his
late assertion of problems with counsel's strategies.
o Defendant chose to express his disagreement with defense
counsel to a third party (thus making the telephone calls
admissible at trial).
o Defendant could still testify and corroborate his altered
defense theory by calling the former defense investigator to
[¶105] As a precaution, the trial court
appointed alternate defense counsel to advise defendant about
his right to testify and his right to call the former defense
investigator as a witness.
[¶106] On the last day of trial, defendant
was again advised of his right to testify, and said that he
had met with alternate defense counsel and was advised of his
right to remain silent. Despite some hesitation by defendant,
the trial court found that he had waived his right to
[¶107] On appeal, defendant argues that the
trial court " improperly elevated concerns about the
timing of the request and defendant's alleged role in
contributing to the conflict over the very real and
substantial concerns about whether defendant could exercise
his right to testify if his public defenders remained on the
case" and that they " effectively nullified [his]
right to testify" with their asserted theory of defense.
[¶108] Contrary to defendant's
assertion, this division recently concluded that there is a
lack of authority " holding that . . . an actual
conflict arises when trial counsel pursues a strategy that
would impede a defendant's right to testify, even over
the defendant's protest." People v. Thomas,
2015 COA 17, ¶ 18. Instead, " 'the defendant
must identify something that counsel chose to do or not do,
as to which he had conflicting duties, and must show that the
course taken was influenced by that conflict.'"
Id. at ¶ 19 (quoting Stroud, ¶
40). Here, as in Thomas, defendant has not
identified any " conflicting duties or interests that
burdened his trial counsel" in deciding to advance the
theory that G.W. caused A.M.'s injuries. Id.
Thus, he did not establish an actual conflict of interest.
[¶109] In any event, the court explicitly
considered each of the Bergerud factors, and acted
within its discretion in giving weight to the fact that
defendant changed his mind about the appropriate theory of
defense only after agreeing to the one recommended by defense
counsel, allowing that theory to be presented to the jury,
hearing most of the evidence against him, and giving the
prosecution further ammunition to undermine the previously
agreed-upon defense strategy in the recorded telephone calls.
See Bergerud, 223 P.3d at 695-97 ( court
should " not only consider whether the defendant's
request was late in coming, and so would seriously
inconvenience witnesses or otherwise disrupt the orderly
administration of justice, but should also establish the
cause for any delay and whether responsibility for the delay
lies with the defendant or with his lawyers. . . . The months
invested in preparing for the trial, and the burdens already
placed on the lives of witnesses, should not be lightly
tossed aside once the trial has begun." ); cf.
People v. Rubanowitz, 688 P.2d 231, 243 (Colo. 1984)
(" [A] defendant may not by his own conduct force a
declaration of mistrial." ); People v. Burke,
937 P.2d 886, 889 (Colo.App. 1996) (same).
[¶110] And because defendant could have
testified as to his " side of the story" and called
the former defense investigator as a witness to rebut a claim
of recent fabrication, the alleged conflict did not deprive
defendant of the right to testify and call witnesses.
[¶111] Consequently, we discern no error in
the court's denial of defendant's request for new
[¶112] The judgment of conviction is
WEBB and JUDGE PLANK 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.
G.W. made this statement during a
videotaped interview she gave in response to an offered plea
bargain. She demonstrated defendant's action twice during
the interview, once by slamming both hands against the wall,
and once by slapping the prosecutor's notebook into the
wall with considerable force. She added that defendant's
" slamming" action made a loud noise.
The videotaped interview was admitted at
Others observed (1) defendant shake, push,
and angrily yell at A.M.; (2) bruises on A.M., including a
handprint-shaped bruise on her face for which a relative
confronted defendant; and (3) A.M.'s mood change, and her
not wanting to leave with defendant when he came to get her
from her stepgrandparents' house on more than one
occasion. In addition, in his videotaped interviews with
police, defendant admitted that he had used the cold-water
spigot to punish A.M. to make her " suffer" and get
" the shakes."
Defendant was overheard on the phone, while
in A.M.'s hospital room, saying, " We're going
to be okay. We've got our stories straight. She fell off
the roof . . . . She might have some handprints or marks on
her body; but I told them that it [sic] might have just
grabbed her too hard."
There was conflicting evidence in this
regard at trial.
The trial court had determined that the
evidence involving K.B., the cats, and the puppy was also
relevant to show defendant's motive for slamming A.M.
against the wall. The court did not, however, instruct the
jury that it could consider the evidence for that
This two-part test is a reformulation
of the traditional four-part test first articulated in
People v. Spoto, 795 P.2d 1314, 1318 (Colo. 1990).
The first part of the reformulated test encompasses the first
three parts of the Spoto test. See
People v. Rath, 44 P.3d 1033, 1038 (Colo.
 See Rath, 44 P.3d at
1040, n.5 ( For CRE 404(b) purposes, " identity"
references the question whether the accused committed the
guilty act, a question which, in turn, " contains the
subquestions of whether the act was committed by someone and
whether, if so, the accused was the person who committed it .
. . ." ).
Thus, the indictment alleged that
unlawfully, feloniously, knowingly, or recklessly
caused an injury to or permitted to be unreasonably placed
in a situation that posed a threat of injury to the life or
health of a child, namely, [A.M.], and engaged in a
continued pattern of conduct that resulted in cruel
punishment, mistreatment, or an accumulation of
injuries that resulted in the death of the child in
violation of 18-6-401(1)(a), (7)(a)(I), C.R.S.
The source of the instruction is unclear
from the record.
In the preceding section, we referenced
such a pattern as one having certain " statutory
To the extent that this interpretation
differs from that in People v. Friend, 2014 COA
123M, we decline to follow Friend. See People v.
Thomas, 195 P.3d 1162, 1164 (Colo.App. 2008) ( one
division of the court of appeals is not bound by a decision
of another division of the court).