18-6-401. Child abuse - definition.
Statute text
(1) (a) 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.
(b) (I) Except as otherwise provided in subparagraph (III) of this paragraph (b), a person commits child abuse if such person excises or infibulates, in whole or in part, the labia majora, labia minora, vulva, or clitoris of a female child. A parent, guardian, or other person legally responsible for a female child or charged with the care or custody of a female child commits child abuse if he or she allows the excision or infibulation, in whole or in part, of such child's labia majora, labia minora, vulva, or clitoris.
(II) Belief that the conduct described in subparagraph (I) of this paragraph (b) is required as a matter of custom, ritual, or standard practice or consent to the conduct by the child on whom it is performed or by the child's parent or legal guardian shall not be an affirmative defense to a charge of child abuse under this paragraph (b).
(III) A surgical procedure as described in subsection (1)(b)(I) of this section is not a crime if the procedure:
(A) Is necessary to preserve the health of the child on whom it is performed and is performed by a person licensed to practice medicine under article 240 of title 12; or
(B) Is performed on a child who is in labor or who has just given birth and is performed for medical purposes connected with that labor or birth by a person licensed to practice medicine under article 240 of title 12.
(IV) If the district attorney having jurisdiction over a case arising under this paragraph (b) has a reasonable belief that any person arrested or charged pursuant to this paragraph (b) is not a citizen or national of the United States, the district attorney shall report such information to the immigration and naturalization service, or any successor agency, in an expeditious manner.
(c) (I) A person commits child abuse if, in the presence of a child, or on the premises where a child is found, or where a child resides, or in a vehicle containing a child, the person knowingly engages in the manufacture or attempted manufacture of a controlled substance, as defined by section 18-18-102 (5), or knowingly possesses ephedrine, pseudoephedrine, or phenylpropanolamine, or their salts, isomers, or salts of isomers, with the intent to use the product as an immediate precursor in the manufacture of a controlled substance. It shall be no defense to the crime of child abuse, as described in this subparagraph (I), that the defendant did not know a child was present, a child could be found, a child resided on the premises, or that a vehicle contained a child.
(II) A parent or lawful guardian of a child or a person having the care or custody of a child who knowingly allows the child to be present at or reside at a premises or to be in a vehicle where the parent, guardian, or person having care or custody of the child knows or reasonably should know another person is engaged in the manufacture or attempted manufacture of methamphetamine commits child abuse.
(III) A parent or lawful guardian of a child or a person having the care or custody of a child who knowingly allows the child to be present at or reside at a premises or to be in a vehicle where the parent, guardian, or person having care or custody of the child knows or reasonably should know another person possesses ephedrine, pseudoephedrine, or phenylpropanolamine, or their salts, isomers, or salts of isomers, with the intent to use the product as an immediate precursor in the manufacture of methamphetamine commits child abuse.
(2) In this section, "child" means a person under the age of sixteen years.
(3) The statutory privilege between patient and physician and between husband and wife shall not be available for excluding or refusing testimony in any prosecution for a violation of this section.
(4) No person, other than the perpetrator, complicitor, coconspirator, or accessory, who reports an instance of child abuse to law enforcement officials shall be subjected to criminal or civil liability for any consequence of making such report unless he knows at the time of making it that it is untrue.
(5) Deferred prosecution is authorized for a first offense under this section unless the provisions of subsection (7.5) of this section or section 18-6-401.2 apply.
(6) Repealed.
(7) (a) Where death or injury results, the following shall apply:
(I) When a person acts knowingly or recklessly and the child abuse results in death to the child, it is a class 2 felony except as provided in paragraph (c) of this subsection (7).
(II) When a person acts with criminal negligence and the child abuse results in death to the child, it is a class 3 felony.
(III) When a person acts knowingly or recklessly and the child abuse results in serious bodily injury to the child, it is a class 3 felony.
(IV) When a person acts with criminal negligence and the child abuse results in serious bodily injury to the child, it is a class 4 felony.
(V) When a person acts knowingly or recklessly and the child abuse results in any injury other than serious bodily injury, it is a class 1 misdemeanor; except that, if it is committed under the circumstances described in paragraph (e) of this subsection (7), then it is a class 5 felony.
(VI) When a person acts with criminal negligence and the child abuse results in any injury other than serious bodily injury to the child, it is a class 2 misdemeanor; except that, if it is committed under the circumstances described in paragraph (e) of this subsection (7), then it is a class 5 felony.
(b) Where no death or injury results, the following shall apply:
(I) An act of child abuse when a person acts knowingly or recklessly is a class 2 misdemeanor; except that, if it is committed under the circumstances described in paragraph (e) of this subsection (7), then it is a class 5 felony.
(II) An act of child abuse when a person acts with criminal negligence is a class 2 misdemeanor; except that, if it is committed under the circumstances described in subsection (7)(e) of this section, then it is a class 5 felony.
(c) When a person knowingly causes the death of a child who has not yet attained twelve years of age and the person committing the offense is one in a position of trust with respect to the child, such person commits the crime of murder in the first degree as described in section 18-3-102 (1)(f).
(d) When a person commits child abuse as described in paragraph (c) of subsection (1) of this section, it is a class 3 felony.
(e) A person who has previously been convicted of a violation of this section or of an offense in any other state, the United States, or any territory subject to the jurisdiction of the United States that would constitute child abuse if committed in this state and who commits child abuse as provided in subparagraph (V) or (VI) of paragraph (a) of this subsection (7) or as provided in subparagraph (I) or (II) of paragraph (b) of this subsection (7) commits a class 5 felony if the trier of fact finds that the new offense involved any of the following acts:
(I) The defendant, who was in a position of trust, as described in section 18-3-401 (3.5), in relation to the child, participated in a continued pattern of conduct that resulted in the child's malnourishment or failed to ensure the child's access to proper medical care;
(II) The defendant participated in a continued pattern of cruel punishment or unreasonable isolation or confinement of the child;
(III) The defendant made repeated threats of harm or death to the child or to a significant person in the child's life, which threats were made in the presence of the child;
(IV) The defendant committed a continued pattern of acts of domestic violence, as that term is defined in section 18-6-800.3, in the presence of the child; or
(V) The defendant participated in a continued pattern of extreme deprivation of hygienic or sanitary conditions in the child's daily living environment.
(7.3) Felony child abuse is an extraordinary risk crime that is subject to the modified presumptive sentencing range specified in section 18-1.3-401 (10). Misdemeanor child abuse is an extraordinary risk crime that is subject to the modified sentencing range specified in section 18-1.3-501 (3).
(7.5) If a defendant is convicted of the class 2 or class 3 felony of child abuse under subparagraph (I) or (III) of paragraph (a) of subsection (7) of this section, the court shall sentence the defendant in accordance with section 18-1.3-401 (8)(d).
(8) Repealed.
(9) (a) If a parent is charged with permitting a child to be unreasonably placed in a situation that poses a threat of injury to the child's life or health, pursuant to subsection (1)(a) of this section, and the child was seventy-two hours old or younger at the time of the alleged offense, it is an affirmative defense to the charge that the parent safely, reasonably, and knowingly handed the child over to a firefighter, as defined in section 18-3-201 (1.5), or to a staff member who engages in the admission, care, or treatment of patients at a hospital or community clinic emergency center, as defined in subsection (9)(b) of this section, when the firefighter is at a fire station, or the staff member is at a hospital or community clinic emergency center, as defined in subsection (9)(b) of this section.
(b) "Community clinic emergency center" means a community clinic licensed by the department of public health and environment pursuant to section 25-3-101 (2)(a)(I)(B) that:
(I) Delivers emergency services; and
(II) Provides emergency care twenty-four hours per day and seven days a week throughout the year, except if located in a rural or frontier area that does not have the demand to support twenty-four-hour service or only operates each year during a specified time period due to seasonal population influx.
History
Source: L. 71: R&RE, p. 448, 1. C.R.S. 1963: 40-6-401. L. 73: p. 538, 4. L. 75: (7) amended and (8) added, p. 620, 15, effective July 21. L. 79: (7) amended, p. 729, 8, effective July 1. L. 80: (1) and (7) R&RE and (8) amended, pp. 544, 545, 1, 2, effective May 6. L. 85: (1), (4), and (5) amended, (7) R&RE, and (7.5) added, pp. 672, 673, 1, 2, effective June 7. L. 87: (6) amended, p. 817, 21, effective October 1. L. 89: (6) R&RE, p. 924, 2, effective June 7. L. 90: (8) repealed, p. 1037, 6, effective April 3. L. 91: (1) amended, p. 422, 1, effective May 24. L. 95: (7)(a)(I) amended and (7)(c) added, p. 1222, 4, effective July 1. L. 99: (1) amended, p. 803, 2, effective May 24. L. 2000: (9) added, p. 2004, 1, effective June 3. L. 2001: (6) repealed, p. 334, 1, effective July 1. L. 2002: (7.5) amended, p. 1515, 198, effective October 1. L. 2003: (1)(c) and (7)(d) added, p. 2383, 1, 2, effective July 1. L. 2004: (7.3) added, p. 636, 9, effective August 4. L. 2006: (1)(c) amended, p. 1705, 4, effective July 1; (7)(a)(V), (7)(a)(VI), (7)(b)(I), and (7)(b)(II) amended and (7)(e) added, p. 2047, 1, effective July 1. L. 2009: (7)(a)(V), (7)(a)(VI), (7)(b), and (7)(e) amended, (HB 09-1163), ch. 343, p. 1797, 2, effective July 1. L. 2011: (1)(b)(IV) amended, (HB 11-1303), ch. 264, p. 1157, 33, effective August 10. L. 2014: (9) amended, (HB 14-1214), ch. 336, p. 1499, 10, effective August 6. L. 2018: (9) amended, (SB 18-050), ch. 20, p. 269, 1, effective March 7. L. 2019: (1)(b)(III) amended, (HB 19-1172), ch. 136, p. 1676, 96, effective October 1. L. 2021: (7)(b)(II) amended, (SB 21-271), ch. 462, p. 3192, 260, effective March 1, 2022.
Annotations
Cross references: (1) For the "Child Protection Act of 1987", see part 3 of article 3 of title 19.
(2) For the statutory privilege between patient and physician and between husband and wife, see 13-90-107.
(3) For the legislative declaration contained in the 2002 act amending subsection (7.5), see section 1 of chapter 318, Session Laws of Colorado 2002. For the legislative declaration contained in the 2006 act amending subsection (1)(c), see section 1 of chapter 341, Session Laws of Colorado 2006.
Annotations
ANNOTATION
Annotations
Law reviews. For article, "Child Abuse -- The Legislative Response", see 44 Den. L.J. 3 (1967). For article, "Disposition of Pre-Embryos upon Dissolution of Marriage in Colorado", see 50 Colo. Law. 40 (Feb. 2021).
This section is not unconstitutionally vague. People v. Kailey, 662 P.2d 168 (Colo. 1983).
Subsection (1)(a) is not unconstitutionally vague as applied to defendant stepmother who lived in the same house as abused child, failed to intervene in husband's child abuse, and actively covered up the abuse. Defendant plainly permitted the child to be placed in a "situation that poses a threat of injury to the child's life or health" and had adequate notice of the proscribed conduct. People v. Pineda, 40 P.3d 60 (Colo. App. 2001).
Former subsection (1) constitutional and does not prescribe different degrees of punishment for same conduct. People v. Schwartz, 678 P.2d 1000 (Colo. 1984).
Subsection (1)(c) does not unconstitutionally infringe on parents' right to raise their children. The state has a parens patriae interest in protecting children from imminent physical harm. People v. Laurent, 194 P.3d 1053 (Colo. App. 2008) (decided under law in effect prior to 2006 amendment).
Subsection (1)(c) is not unconstitutionally overbroad because it proscribes as felony child abuse the manufacture or attempted manufacture of controlled substances in a home where a child resides without proscribing as child abuse the commission of other crimes in a home where a child resides. People v. Laurent, 194 P.3d 1053 (Colo. App. 2008) (decided under law in effect prior to 2006 amendment).
Defendant's claim that subsection (1)(c) violated equal protection fails because subsections (1)(c) and (7)(a)(I) to (7)(a)(VI) do not affect persons who are similarly situated. People v. Laurent, 194 P.3d 1053 (Colo. App. 2008) (decided under law in effect prior to 2006 amendment).
Although the same conduct can fit sexual assault on a child, 18-3-405, and child abuse, the statutes also proscribe different conduct and have different legislative purposes, so there is no equal protection violation. The sexual assault statute requires sexual contact, and the child abuse statute requires serious bodily injury. Those differences show the legislature's intent to protect child from two different types of conduct even though they may overlap. People v. Lovato, 2014 COA 113, 357 P.3d 212.
Prohibition of cruel punishment in former subsection (1)(c) constitutional. The prohibition in the child abuse statute against cruel punishment was sufficiently precise to satisfy due process requirements. People v. Jennings, 641 P.2d 276 (Colo. 1982).
Classification of child abuse as more serious than negligent homicide constitutional. The legislative classification of child abuse as a crime more serious in penalty than the offense of criminally negligent homicide is neither arbitrary nor unreasonable and does not violate equal protection of the laws. People v. Taggart, 621 P.2d 1375 (Colo. 1981); People v. Mann, 646 P.2d 352 (Colo. 1982).
Criminally negligent homicide is a lesser included offense of criminally negligent child abuse resulting in death. People v. Clements, 732 P.2d 1245 (Colo. App. 1986).
Sections 18-6-401 and 18-3-405 do not proscribe identical conduct. The proscriptions of this section encompass conduct that is particularly abusive to children, that is directed specifically against a child, and that results in injury to that child. Criminally negligent homicide, on the other hand, proscribes in general terms a gross carelessness that causes death to anyone, adult or child. People v. Taggart, 621 P.2d 1375 (Colo. 1981).
More serious penalty than reckless manslaughter constitutional. The legislative classification of felony child abuse as a crime warranting a more serious penalty than reckless manslaughter, though proscribing identical conduct, does not violate equal protection of the laws. People v. Christian, 632 P.2d 1031 (Colo. 1981); People v. Noble, 635 P.2d 203 (Colo. 1981).
When the additional factors set forth in subsection (7)(a)(I) are met, a defendant commits child abuse murder, not child abuse resulting in death. Child abuse resulting in death is a lesser included offense of child abuse murder. Friend v. People, 2018 CO 90, 429 P.3d 1191.
This section does not authorize separate convictions for each instance of child abuse and for its respective pattern of abuse. It does not have a separate subsection for pattern of child abuse. Instead, pattern of child abuse is an alternative way of committing child abuse. Therefore, a defendant may not be convicted of both child abuse and child abuse-pattern of conduct. People v. Friend, 2014 COA 123M, 431 P.3d 614, aff'd, 2018 CO 90, 429 P.3d 1191.
Common-law limits of parental chastisement codified. The parental privilege set out in 18-1-703(1)(a) and the definition of criminal child abuse in 18-1-401 codify common-law principles concerning the limits of permissible parental chastisement. People v. Jennings, 641 P.2d 276 (Colo. 1982).
This section depends on no source of duty; therefore, defendant was sufficiently charged under the statute, despite the information's failure to allege the defendant's duty to act or the source of such duty. People v. Arevalo, 725 P.2d 41 (Colo. App. 1986); People v. Lybarger, 790 P.2d 855 (Colo. App. 1989), rev'd on other grounds, 807 P.2d 570 (Colo. 1991).
Under this section, any person owes a legal duty to refrain from either: (1) Permitting a child to be unreasonably placed in a situation that poses a threat; or (2) engaging in a continued pattern of child abuse. This duty attaches even if the person causes no injury to the child victim. People v. Pineda, 40 P.3d 60 (Colo. App. 2001).
Defendant sufficiently apprised of the charges against him because the information was framed in the words of the statute and the trial court had granted his request for a bill of particulars. People v. Arevalo, 725 P.2d 41 (Colo. App. 1986); People v. Lybarger, 790 P.2d 855 (Colo. App. 1989), rev'd on other grounds, 807 P.2d 570 (Colo. 1991).
Prosecution has burden of establishing guilt beyond reasonable doubt as to each material element of this offense. People v. Durbin, 187 Colo. 230, 529 P.2d 630 (1974).
Prosecution must establish guilt of defendant raising affirmative defense beyond reasonable doubt. Where, in a prosecution for child abuse, the evidence raises the affirmative defense of justified physical force for disciplinary purposes, the prosecution must establish the guilt of the defendant beyond a reasonable doubt as to that issue as well as all other elements of the offense. People v. Taggart, 621 P.2d 1375 (Colo. 1981).
"Child", as used in this section to describe a victim of abuse, includes a fetus that is injured while in the womb, is subsequently born and lived outside the womb, and then dies from the injuries sustained. While Colorado has no provisions criminalizing the injuring or killing of a fetus, the state common law "born alive" doctrine permits a criminal prosecution of the perpetrator when a child is born alive and then dies of the prenatal injuries and civil law in the state has held that such a victim is a person within Colorado's wrongful death statute. People v. Lage, 232 P.3d 138 (Colo. App. 2009), overruled in People v. Jones, 2020 CO 45, 464 P.3d 735.
Definition of "child" used in this section to describe a victim of abuse does not include a fetus who is injured while in the womb and is later born alive. Under the statute, a child is a person under the age of sixteen years. An unborn fetus is not a person for purposes of this definition. The court refused to apply the common law "born alive" doctrine to define a criminal element in the child abuse statute. People v. Jones, 2020 CO 45, 464 P.3d 735 (overruling People v. Lage, 232 P.3d 138 (Colo. App. 2009)).
The term "health" includes both physical and mental well-being. People v. Sherrod, 204 P.3d 472 (Colo. App. 2007), rev'd on other grounds, 204 P.3d 466 (Colo. 2009).
The phrase "without justifiable excuse" in former subsection (1) of this section referred to the specific statute on justification, particularly 18-1-703 (1)(a), which concerns the use of physical force in the special relationship of one who is entrusted with the care of a minor. People v. Hoehl, 193 Colo. 557, 568 P.2d 484 (1977).
Use of jury instruction containing phrase "without justifiable excuse" instead of word "unreasonably" from subsection (1)(a) was not plain error. People v. Johnson, 74 P.3d 349 (Colo. App. 2002).
The word "may" in former subsection (1)(a) of this section was construed to mean that there was a reasonable probability that the child's life or health will be endangered from the situation in which the child is placed. People v. Hoehl, 193 Colo. 557, 568 P.2d 484 (1977); People v. Jennings, 641 P.2d 276 (Colo. 1982); People v. Mann, 646 P.2d 352 (Colo. 1982).
Lack of jury instruction on meaning of word "may" did not constitute plain error where evidence established a reasonable probability that child's life and health might be endangered and lack of instruction could not be said to have reasonably contributed to defendant's conviction of child abuse. People v. Rubanowitz, 688 P.2d 231 (Colo. 1984).
The phrase "endanger the child's . . . health" in former subsection (1)(a) of this section contained no constitutional infirmities. People v. Hoehl, 193 Colo. 557, 568 P.2d 484 (1977).
There is no constitutional impediment to the general assembly punishing conduct creating less than imminent danger, and it is a particularly appropriate standard where the protection of children is the statutory purpose. People v. Hoehl, 193 Colo. 557, 568 P.2d 484 (1977).
"Endanger" in former subsection (1)(a) meant an imminent danger and "may endanger" in subsection (1)(b) meant a reasonable probability of harm. People v. Schwartz, 678 P.2d 1000 (Colo. 1984).
The phrase "that ultimately results in the death of a child or serious bodily injury" in subsection (1)(a) applies only to the last enumerated pattern of abuse -- "an accumulation of injuries" -- not the whole series. People v. Weeks, 2015 COA 77, 369 P.3d 699.
"Except" deleted. By statutory construction, the court deleted the "except" clauses in former subsections (7)(a)(I), (7)(a)(III), and (7)(a)(V). People v. Schwartz, 678 P.2d 1000 (Colo. 1984).
Child abuse definition sufficiently particular to furnish adequate notice to potential wrongdoers. The term "negligently" (amended to read "through criminal negligence" in 1980), as used in this section, is not irreconcilably at odds with "tortured" and "cruelly punished", and the statutory definition of child abuse is sufficiently particular to furnish adequate notice to potential wrongdoers of the proscribed conduct and to protect against discriminatory enforcement. People v. Taggart, 621 P.2d 1375 (Colo. 1981); People v. Mann, 646 P.2d 352 (Colo. 1982).
"Knowingly". The requirement of "knowingly" in former subsection (1) did not refer to the actor's awareness that his conduct was practically certain to cause the proscribed result; instead, "knowingly" referred to the actor's general awareness of the abusive nature of his conduct in relation to the child or his awareness of the circumstances in which he committed an act against the well-being of the child. People v. Noble, 635 P.2d 203 (Colo. 1981); People v. Thompson, 756 P.2d 353 (Colo. 1988).
The mental state "knowingly" is implied in former subsection (1)(c) because the statute required the accused to engage in the manufacture of a controlled substance. Both the terms "engage" and "manufacture" imply that the accused must be aware of the type of conduct participated in, and must seek to accomplish a particular task. People v. Laurent, 194 P.3d 1053 (Colo. App. 2008) (decided under law in effect prior to 2006 amendment to subsection (1)(c)).
"Knowing" child abuse does not require that the defendant is aware that his conduct will cause serious bodily injury. Instead, to knowingly commit child abuse, a defendant need only be aware of the conduct he is engaging in with the child. People v. Archer, 2022 COA 71, 518 P.3d 1143.
Similarly, to recklessly commit child abuse, a defendant need only consciously disregard a substantial and unjustifiable risk that, given the child's circumstances, the child may be injured. People v. Archer, 2022 COA 71, 518 P.3d 1143.
Even if there is a logical inconsistency between acting knowingly or recklessly and acting with criminal negligence, no legal inconsistency exists based on 18-1-503 (3). By returning a guilty verdict on child abuse that required a finding of knowingly or recklessly, the jury, as a matter of law, necessarily found that the defendant had acted with criminal negligence and was guilty of child abuse that required criminal negligence. People v. Struckmeyer, 2020 CO 76, 474 P.3d 57.
The culpable mental states applicable to the crime of child abuse relate not to a particular result, but rather to the nature of the offender's conduct in relation to the child or to the circumstances under which the act or omission occurred. People v. Deskins, 927 P.2d 368 (Colo. 1996).
Evidence that abuse resulted in serious bodily injury, as defined in 18-1-901 (3)(p) sufficient to support charges of felony child abuse must relate to the extent of the injury at the time it occurred, not at the time of trial. People v. Thompson, 748 P.2d 793 (Colo. 1988).
Prior abusive conduct is not itself sufficient to be admissible as proof of defendant's knowledge or recklessness for a conviction for child abuse resulting in death under subsection (7)(c) when prior abusive conduct did not also result in serious bodily injury or death to a child and the prior abusive conduct bore no resemblance to the acts defendant allegedly committed in this case. The prior abusive conduct and the conduct resulting in death must be substantially similar in order to be admissible under C.R.E. 404(b). People v. Casias, 2012 COA 117, 312 P.3d 208.
Nor is it admissible to prove absence of mistake. People v. Casias, 2012 COA 117, 312 P.3d 208.
But defendant failed to demonstrate a reasonable probability that the error in admitting the evidence contributed to his conviction. People v. Casias, 2012 COA 117, 312 P.3d 208.
Inaction may be act of mistreatment. The child abuse statute proscribes acts of mistreatment which include inaction as well as action. People v. Jennings, 641 P.2d 276 (Colo. 1982).
"Tortured" and "cruelly punished", as used in former subsection (1), referred to actus reus, as measured by the consequences wrought on the child. People v. Taggart, 621 P.2d 1375 (Colo. 1981); People v. Jennings, 641 P.2d 276 (Colo. 1982).
Placing child in debilitating physical situation may be considered torture. A person may negligently cause or permit a child to be placed in a situation so debilitating to the child's physical well-being that a reasonable juror, looking at the effect of the offender's conduct on the child, would consider it torture or cruel punishment. People v. Taggart, 621 P.2d 1375 (Colo. 1981).
Conduct prohibited by former subsection (1)(b) was punished as provided in subsection (7)(b). People v. Schwartz, 678 P.2d 1000 (Colo. 1984).
"Good faith" under former subsection (6) means an objectively reasonable belief that a child is not suffering from a condition which, if medically untreated, will endanger a child's life or will pose a substantial risk of serious bodily harm to the child. A belief is objectively reasonable when based on a reasonable assessment of the facts and circumstances known or discernible to the parent. People v. Lybarger, 807 P.2d 570 (Colo. 1991) (decided under law in effect prior to 1989 repeal and reenactment of subsection (6)).
Thus, treatment by spiritual means defense is inapplicable where a parent believes that the child is not in danger of death or serious bodily harm but such belief is not based on a reasonable assessment of the facts and circumstances that are known to the parent. People v. Lybarger, 807 P.2d 570 (Colo. 1991) (decided under law in effect prior to 1989 repeal and reenactment of subsection (6)).
Treatment by spiritual means was an affirmative defense under former subsection (6) if there was credible evidence that the parent had an honest and reasonable belief that the child was not suffering from a condition which, if untreated, would endanger the child's life or pose a substantial risk of serious bodily harm to the child, that the parent was a duly accredited practitioner of a recognized church or religious denomination, and the parent elected to treat the child solely by spiritual means in accordance with tenets and practices of the parent's church. Record shows sufficient evidence raised by defendant to submit affirmative defense to the jury. People v. Lybarger, 807 P.2d 570 (Colo. 1991) (decided under law in effect prior to 1989 repeal and reenactment of subsection (6)).
Subsection (7)(a) applies only when death or injury occurs and subsection (7)(b) applies when no such result occurs. People v. Schwartz, 678 P.2d 1000 (Colo. 1984); People v. Lybarger, 790 P.2d 855 (Colo. App. 1989), rev'd on other grounds, 807 P.2d 570 (Colo. 1991).
A class 3 felony conviction under subsection (7)(a)(III) requires a causal connection between each listed form of child abuse and the alleged serious bodily injury, and, because the prosecution failed to make that connection between the situation that posed a threat of injury to the child and a resulting serious bodily injury, the prosecution lacked sufficient evidence on their second alternative theory of liability. People v. Dunaway, 88 P.3d 619 (Colo. 2004).
No reasonable interpretation of subsection (1)(a) would lead to the conclusion that proof of injury or serious bodily injury for purposes of meeting elements in subsection (7)(a) is made or inferred through proof of the conduct listed in subsection (1)(a). People v. Dunaway, 88 P.3d 619 (Colo. 2004).
A person commits child abuse if he or she causes injury to a child's life or health, or permits a child to be unreasonably placed in a situation which poses a threat of injury to the child's life or health, and such offense does not depend on the offense resulting in death. People v. Robinson, 874 P.2d 453 (Colo. App. 1993).
Fact that a child victim dies is a sentence enhancement factor and not an element of the crime of child abuse. People v. Robinson, 874 P.2d 453 (Colo. App. 1993).
The distinction of a position of trust in subsection (7)(c) is not nominal and it sufficiently justifies the harsher penalty imposed under that subsection. People v. Martinez, 51 P.3d 1046 (Colo. App. 2001), rev'd on other grounds, 74 P.3d 316 (Colo. 2003).
The age distinction for the victims mentioned in subsection (7)(c) is based on differences that are real in fact and that are reasonably related to the more severe penalty associated with subsection (7)(c). People v. Martinez, 51 P.3d 1046 (Colo. App. 2001), rev'd on other grounds, 74 P.3d 316 (Colo. 2003).
The prior child abuse conviction provision in subsection (7)(e) is a sentence enhancer, not an element of a child abuse crime. The trial court erred in allowing the people to introduce evidence of and make repeated references to defendant's prior child abuse conviction. People v. Becker, 2014 COA 36, 347 P.3d 1168.
Acts similar in character admissible to negate claim of justification. Where all the prior acts of child abuse the prosecution sought to introduce into evidence were committed against the same person, each act was occasioned by normal childhood behavior on the part of the victim, each act was similar in severity in that noticeable bruises and marks were left on the child's body, each act took place while the child's mother was absent, and, finally, each act was followed by the defendant's explanation that it was for disciplinary purposes, that acts were sufficiently similar in character to be admissible for purposes of establishing criminal culpability and of negating any claim of accident or justification. People v. Taggart, 621 P.2d 1375 (Colo. 1981).
Acquittal on assault charge not bar to prosecution for knowing child abuse. A verdict of acquittal on a charge of assault does not bar reprosecution for knowing child abuse, since a finding that the defendant did not have the specific intent to cause serious injury is not an ultimate fact essential to proof of knowing child abuse because a conviction on that charge may be sustained by conduct that is done knowingly or negligently. People v. Hoehl, 629 P.2d 1083 (Colo. App. 1980).
Failure to include the phrase "without justifiable excuse" in a jury instruction on a crime of child abuse was not error where the affirmative defense of reasonable and appropriate discipline was not raised by the defense. People v. Lybarger, 700 P.2d 910 (Colo. 1985), rev'd on other grounds, 807 P.2d 570 (Colo. 1991).
Jury instruction delivered by trial court constructively amended the count of reckless child abuse resulting in death. The information charged one form of child abuse, causing an injury to a child's life or health, and the jury instruction stated another, uncharged form of child abuse, permitting a child to be unreasonably placed in a situation that may have endangered the child's life or health. People v. Weinreich, 98 P.3d 920 (Colo. App. 2004), aff'd, 119 P.3d 1073 (Colo. 2005).
Because the amendment prejudiced defendant's substantial rights, the error rises to plain error. The amendment occurred after the close of evidence, and, therefore, defendant was deprived of the opportunity to present evidence on whether he had unreasonably placed his deceased daughter in a situation that may have endangered her life or health. People v. Weinreich, 98 P.3d 920 (Colo. App. 2004), aff'd, 119 P.3d 1073 (Colo. 2005).
Consistency of verdicts. There is no logical inconsistency between the guilty verdicts for the crimes of felony child abuse and reckless manslaughter. People v. Noble, 635 P.2d 203 (Colo. 1981).
A guilty verdict for felony child abuse is not inconsistent with an acquittal of extreme indifference murder nor second degree murder. People v. Noble, 635 P.2d 203 (Colo. 1981).
Prosecution presented several acts that could have constituted child abuse, so the prosecution needed to elect the specific act on which it relied for conviction or the court needed to give the jury a modified unanimity instruction. People v. Childress, 2012 COA 116, 409 P.3d 365, rev'd on other grounds, 2015 CO 65M, 363 P.3d 155.
Defendant not entitled to a modified unanimity instruction where the prosecution charged and presented the case on a theory that defendant committed child abuse by engaging in a single criminal transaction resulting in a child's death, and because there was no reasonable likelihood the jurors disagreed on which specific act caused the child's death. Archuleta v. People, 2020 CO 63, 467 P.3d 307.
Evidence sufficient to support a general verdict of guilty on charge brought under subsection (1)(a) where the evidence challenged on appeal consisted of alternative methods of establishing a single element. Therefore, the rule that requires sufficient evidence to support each alternative theory of prosecution's case does not apply. People v. Pineda, 40 P.3d 60 (Colo. App. 2001).
Defendant's active participation in the decision-making process that led to children's deaths sufficient to support his convictions. Defendant did not simply fail to intervene; to the contrary, he engaged in affirmative acts of mistreatment, thereby rendering irrelevant the question of his relationship with the victims. People v. Archer, 2022 COA 71, 518 P.3d 1143.
Manufacturing a controlled substance is a lesser included offense of child abuse based on manufacturing a controlled substance. People v. Laurent, 194 P.3d 1053 (Colo. App. 2008) (decided under law in effect prior to 2006 amendment to subsection (1)(c)).
Native and citizen of Mexico convicted under subsections (1)(a) and (7)(b)(I) of this section not entitled to cancellation of removal under the Immigration and Nationality Act, 8 U.S.C. 1229b(b). The conviction falls within the definition of "a crime of child abuse, child neglect, or child abandonment" in 8 U.S.C. 1227(a)(2)(E)(i) of the federal statute. Zarate-Alvarez v. Garland, 994 F.3d 1158 (10th Cir. 2021).
Applied in People v. Sheldon, 198 Colo. 519, 602 P.2d 869 (1979); People v. Beland, 631 P.2d 1130 (Colo. 1981); People v. Raffaelli, 647 P.2d 230 (Colo. 1982); People v. Gordon, 738 P.2d 404 (Colo. App. 1987).