People v. Childress
2012 WL 2926636
Colo. Ct. App.2012Background
- Defendant Kenneth Childress appeals after a jury found him guilty of child abuse resulting in serious bodily injury, vehicular assault (DUI), DUI, reckless endangerment, reckless driving, and two counts of contributing to the delinquency of a minor; sentence imposed includes multiple concurrent and consecutive terms.
- K.C. (three) and B.L. (seventeen) were the child-victim and the older son, with incidents occurring during a weekend visitation; K.C. sustained serious injuries from a crash caused by B.L. who was driving while intoxicated in a car driven by defendant’s social circle.
- Defendant was heavily intoxicated; he urged B.L. to speed and run red lights during trips involving K.C., and K.C. rode unrestrained either in a car seat or without restraints.
- The jury acquitted vehicular assault (reckless driving) and DUI, but convicted on driving while impaired by alcohol and other charges; defendant was sentenced to lengthy terms concurrently and consecutively for multiple offenses.
- The court vacated the vehicular assault (DUI) conviction and reversed the child abuse conviction for lack of proper unanimity and failure to elect the specific act; remand for new trial on child abuse and to address sentencing procedures under Crim. P. 25; mittimus correction was also ordered.
- The court held that complicity liability cannot attach to a strict liability crime (vehicular assault DUI) and remanded for proper proceedings on the child abuse charge and sentencing issues.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether complicitor liability extends to vehicular assault (DUI). | People argued complicity applies if principal acts, even in strict liability. | Childress contends complicitor liability cannot attach to a strict-liability crime. | Vehicular assault (DUI) cannot support complicity liability; conviction vacated. |
| Whether the trial court erred by not requiring election or a unanimity instruction for the child abuse count. | Prosecution relied on several acts; no election or unanimity instruction given. | Defense requested election or a modified unanimity instruction. | Conviction reversed; insufficient guarantee of jury unanimity; remand for new trial with proper unanimity procedures. |
| Whether the sentencing by a substitute judge complied with Crim. P. 25. | Rule requires reasons for substitution to be on record; proper presiding judge should sentence. | Substitution may be permissible with proper record; sentencing should reflect Crim. P. 25 standards. | Remand for Crim. P. 25 compliance; if permissible reason, some counts affirmed, otherwise resentencing by trial judge. |
| Whether mittimus inaccurately reflects verdict and must be corrected. | Mittimus must be corrected to reflect driving while impaired by alcohol (l(b)) instead of DUI (l(a)). |
Key Cases Cited
- Bogdanov v. People, 941 P.2d 247 (Colo. 1997) (complicity requires dual mental state for underlying negligence or recklessness; not for strict liability crimes like vehicular assault (DUI))
- Grissom v. People, 115 P.3d 1280 (Colo. 2005) (extends Wheeler to reckless/negligent underlying crimes; clarifies scope of complicity liability)
- Wheeler v. People, 772 P.2d 101 (Colo. 1989) (complicity may attach in negligent homicide when principal's conduct grossly deviates from standard of care)
- People v. Fisher, 9 P.3d 1189 (Colo. App. 2000) (felony-murder complicity cases rely on underlying culpable states; distinguish strict liability)
- Quintano, 105 P.3d 585 (Colo. 2005) (unanimity and election principles for multiple acts under a single count)