The Colorado Court of Appeals issued its opinion in People v. Childress on July 19, 2012.
Child Abuse—Serious Bodily Injury—Vehicular Assault (DUI)—Complicitor Liability—Bill of Particulars—Unanimity Instruction—Sentencing—Crim.P. 25.
Defendant appealed his judgment of conviction entered on a jury verdict finding him guilty of child abuse resulting in serious bodily injury, vehicular assault (driving under the influence (DUI)), driving while impaired by alcohol, reckless endangerment, reckless driving, and two counts of contributing to the delinquency of a minor. He also appealed the sentence imposed. The judgment was affirmed in part, vacated in part, and reversed in part, and the case was remanded.
After consuming alcohol at a party, defendant drove his 3-year-old son, K.C., his 17-year-old son, B.L., and B.L.’s 19-year-old girlfriend, H.T., to defendant’s house in Aurora. They then decided to return to the party. B.L. drove, defendant did not restrain K.C., and they were involved in an accident where K.C. sustained severe injuries.
Defendant contended on appeal that his vehicular assault conviction must be vacated because there cannot be complicitor liability for vehicular assault (DUI). The Court of Appeals held, as a matter of first impression in Colorado, that complicitor liability does not apply to the strict liability crime of vehicular assault (DUI) because the crime does not require a culpable mental state. Therefore, defendant’s conviction for vehicular assault (DUI) was vacated.
Defendant also contended that his conviction for child abuse must be reversed because the trial court failed to require a bill of particulars and failed to require the prosecution to elect which act of child abuse supported his conviction, or, in the alternative, failed to give a unanimity instruction. The prosecution presented evidence that defendant took K.C. to a party where underage drinking and drug use was occurring, forced K.C. to drink alcohol, placed K.C. in a dryer and closed the door, took K.C. out in the cold without proper clothing, drove a vehicle while impaired with K.C. as an unrestrained passenger, and allowed B.L. to drive a vehicle while impaired with K.C. as an unrestrained passenger. Because the prosecution presented several acts that could form the basis of child abuse under CRS § 18-6-401(1)(a), the jury instructions given here did not ensure that the jury’s verdict was unanimous. Therefore, defendant’s conviction for child abuse was reversed.
Defendant further argued that his sentences must be vacated because the judge who conducted his trial was not the same judge who sentenced him. Because the record does not indicate the reason for the substitution, the case was remanded for an explanation pursuant to Crim.P. 25.
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