Lead Opinion
Opinion by
T1 Defendant, Jeff Anthony Casias, appeals the judgments 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 a position of trust) and knowing or reckless child abuse resulting in death. We affirm.
1 2 Defendant's girlfriend left defendant at home with their seven-week-old baby, J.C. When she left, defendant was holding an awake, responsive, and content J.C. Shortly afterwards, however, defendant telephoned to tell her that J.C. had choked and stopped breathing. Defendant hung up but called back moments later to tell her that he was taking J.C. to the hospital.
13 Upon arrival at the hospital, J.C. was unresponsive and limp and did not open her eyes or move any of her extremities. Defendant told the emergency room physician that he had been feeding her when she began choking and that, in an effort to help her, he put cold water on her and shook her "a little bit but not excessively."
1 4 J.C. died the next morning.
15 At trial, the People presented expert witnesses who opined that J.C. died as the result of nonaceidental traumatic brain injury caused by being violently shaken or "slamm{ed]" against a hard surface. The experts based their opinions on fractures to J.C.'s skull and rib, hemorrhages in both her retinas, severe swelling of her brain, and bruising on her forehead0.
T 6 Defendant asserted that J.C.'s injuries were the result of a fall off the bed onto a hardwood floor approximately a week before she died. Consistent with this theory, defendant's girlfriend testified that seven to ten days before she died, J.C. rolled off the bed, struck her head on the wooden floor, and thereafter was more lethargic, had trouble eating, was congested, and "cried a lot."
T7 Also consistent with this theory, defendant's expert witness testified that (1) skull fractures in children J.C.'s age could result from short falls onto a hard surface; (2) she did not see injuries to the upper neck, spinal cord, and brain stem that she would expect if J.C. had been injured as a result of being shaken; and (8) choking is reported in many cases where a child has the type of brain damage J.C. suffered. Defendant's expert also opined, contrary to the People's evidence, that J.C.'s rib injuries could have resulted from either a deformity or CPR performed on her, and that retinal hemorrhages are found in accidental deaths and are not characteristic of significant force to the head.
18 For the purposes of showing defendant's knowledge or absence of mistake, the prosecution was permitted to introduce evidence of two instances in which defendant allegedly abused his three-year-old daughter, A.C.
T9 The jury convicted defendant as charged, and the trial court sentenced him to concurrent terms of life imprisonment without the possibility of parole on the first degree murder count and twenty-four years imprisonment on the child abuse count.
II. Refusal to Allow Expert Testimony via Video-Conferencing Equipment
{10 Defendant contends that the trial court erred when it precluded a defense expert from testifying live via video-conferencing equipment. We disagree.
¶ 11 Twenty-two days before trial, defendant endorsed, as an expert witness, a radiologist who, after reviewing J.C.'s medical file, concluded that her head injuries could not be distinguished as accidental or nonaccidental and that her rib injuries were likely caused by a bone disorder. Defendant simultaneously filed a motion to permit the expert to testify via telephone because he was unable to travel to Colorado on the dates scheduled for trial. Over the prosecution's objection to the late endorsement of the witness,
{ 12 Defendant then filed a motion to permit the expert to testify via video-conferencing. In his motion, defendant asserted that video testimony "would alleviate the Court's concern regarding fairness to the prosecution in cross-examination [and] ... allow{[] for the jurors to judge [the expert's] demeanor on the stand." Defendant subsequently confirmed that the courtroom had the necessary equipment to conduct video-conferencing, and that the equipment had been tested and worked properly. The prosecutor renewed her objection to the late endorsement of the expert and objected to allowing him to testify by video because (1) she could not control what documents the expert had access to, and thus, she could not adequately or effectively cross-examine him, and (2) the technology had not yet been used in the courtroom, and thus, the quality of the audio and video was unknown.
13 The trial court denied defendant's motion because (1) it did not have confidence that the video-conferencing equipment would work and (2) as neither the prosecution nor the jury would be able "to see how the [expert] ... reacts," allowing video testimony would affect the prosecution's ability to cross-examine the witness and the jury's ability to assess the witness's credibility.
14 The day before trial, defendant filed a motion to reconsider the court's video-conferencing ruling or, in the alternative, to continue the trial until a date upon which the expert could appear in person to testify. In his motion, defendant asserted that the expert witness was essential to his defense. The court denied both proposed alternatives.
1 15 On appeal, defendant asserts that the court's refusal to allow his expert to testify via video-conferencing equipment violated his constitutional rights to present a defense and to a fair trial. He characterizes the court's action as an exclusion of his expert's testimony for a discovery violation, which, he asserts, cannot be justified under the five-factor test of People v. Pronovost, TT3 P.2d 555, 558 (Colo.1989).
{ 16 Defendant's argument is built upon a false premise. The court did not exelude his expert from testifying. Indeed, the court expressly permitted his expert to testify, despite having been belatedly endorsed,. The court simply required that the expert testify in court. As such, the court's ruling calls into question only the exercise of its discretion in reasonably controlling the interrogation of witnesses and the presentation of evidence. See CRE 6l1(a).
117 A trial court abuses its discretion when its ruling is (1) manifestly arbitrary, unreasonable, or unfair or (2) based on an erroneous understanding or application of the law. People v. Muniz, 190 P.8d T74, T8l (Colo. App.2008).
118 "[There is nothing arbitrary about favoring [in-court] over remote testimony...." Djedovic v. Gonzales,
The rule is a function of the adversarial mode of Anglo-American adjudication that encourages litigants, in the elusive search for the truth, to subject opposing witnesses to rigorous cross-examination. The rule [also] promotes another core feature of our adjudicatory system: the factfinder's all-important function of observing the demeanor and evaluating the credibility of each witness that comes before the court.
State v. Santos,
119 To this effect, Crim. P. 26 provides that "(in all trials the testimony of witnesses shall be taken orally in open court, unless otherwise provided by law." The rule protects not only a defendant's confrontation rights but also the fundamental fairness of the trial itself. See United States v. Banki,
¶ 20 Courts have recognized certain disadvantages of video testimony. See, e.g., United States v. Lawrence,
€ 21 Defendant has not cited any authority, and we have found none, for the proposition that he was entitled to present the testimony of his expert through video-conferencing. Indeed, the concerns with video-conferencing mentioned in the cases cited above are particularly relevant in a case such as this, where the majority of the evidence presented was highly complicated medical testimony. Cf. Edwards,
1 22 We emphasize that our decision here is grounded in an application of the abuse of discretion standard of review, and not in a categorical bar on the receipt of live testimony via video-conferencing equipment. The receipt of live testimony through that mechanism is, after all, authorized, in limited circumstances, by statute.
III. Admission of Other Bad Acts Evidence
123 Defendant contends that the trial court erroneously admitted evidence that he
{24 The prosecution sought to introduce evidence of numerous other bad acts committed by defendant involving alleged abuse of A.C. and domestic violence against his girlfriend. - After conducting an evidentiary hearing, and considering the parties' written submissions, the court denied the prosecution's request with respect to all but two of the alleged acts.
« 25 Both of the alleged acts for which the prosecution was permitted to introduce evidence concerned defendant's treatment of A.C.: approximately four to five months before J.C.s death, defendant had slapped A.C. hard enough to leave a handprint (and later a bruise) on her face, and, on another occasion, he had taken her by the arm, shaken her "a little bit," thrown her into a car, and "smacked" her on the arm. On both occasions, the acts against A.C. occurred shortly after an argument between defendant and another adult (in the first instance, with his girlfriend's sister, and in the second instance, with the girlfriend).
126 In a written order, the trial court found that evidence concerning the two acts was admissible because it was relevant, apart from any inference of bad character, to show that defendant had acted knowingly and recklessly-rather than mistakenly-toward the victim in this case. During trial, the court instructed the jury that the evidence could "be used for the purpose of showing knowledge or absence of mistake and ... for no other purpose."
127 The admission of evidence of other bad acts may "unfairly expose[ ] a defendant to the risk of being found guilty based on bad character rather than on evidence relating to the charged offense." People v. Lopez,
128 Under CRE 401, 403, and 404(b), however, a trial court may admit evidence of a defendant's other bad acts if (1) the evidence is offered for a proper purpose; (2) the evidence is logically relevant to a material issue in the case; (3) its relevance is independent of the intermediate inference that the defendant has a bad character;
$29 Trial courts have considerable discretion to decide questions concerning the admissibility of evidence, id., and an abuse of discretion will only be found upon a showing that the court misconstrued or misapplied the law or otherwise reached a manifestly arbitrary, unreasonable, or unfair result. See generally People v. Garcia, 169 P.8d 223, 226 (Colo.App.2007).
30 Here, the court found that the conditions for admitting evidence of the two instances of alleged abuse against A.C. were satisfied. As pertinent to our inquiry, the court found that the evidence was logically relevant to a material issue in the case, independent of any inference of bad character:
Evidence indicating that the Defendant had engaged in abusive behavior toward another small child in the near past has some tendency to make it more probable*215 as a logical matter that he knew that his conduct would have a particular result on [the day J.C. went into distress].
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[Here, the inference relied upon arises not from the criminal character of the accused, but from the demonstration of his pattern of engaging in a type of conduct to accomplish a particular end or result.
A. Use of Other Act Evidence to Prove Mental State
131 As we see it, the issue on appeal is whether the acts against A.C. were logically relevant, independent of any inference of bad character, to prove the culpable mental state for each of the crimes allegedly committed against J.C., that is, first degree murder and child abuse resulting in death.
1. The "Knowing" and "Reckless" © Culpable Mental States of the Crimes Charged
182 As pertinent here, section 18-3-102(1)(f), C.R.S.2011, provides that "[a] person commits the crime of murder in the first degree if ... [t] he 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 victim." A person acts knowingly "when he [or shel is aware that his [or her] conduct is practically certain to cause the result." § 18-1-501(6), C.R.S.2011.
T 33 Thus, with respect to the first degree murder charge here, the prosecution had to prove that defendant engaged in conduct which he was aware was practically certain to cause J.C.'s death. Cf. Mata-Medina v. People,
134 A person who commits child abuse under section 18-6-401(1)(a), C.R.S. 2011, is subject to punishment for a class 2 felony "when [he or she] acted] knowingly or recklessly and the child abuse results in death to the child." § 18-6-401(7)(a)(I), C.R.S.2011.
¶ 35 In connection with the child abuse charge, the prosecution had to prove, with respect to the "knowing" mental state, only that defendant was aware of the abusive nature of his conduct in relation to J.C. or of the circumstances in which he committed an act against her well-being; and with respect to the "reckless" element, only that defendant was aware of (and consciously chose to disregard) a substantial and unjustifiable risk that his conduct could result in injury to her life or health. See People v. Deskins,
2. Legitimate Use of Other Bad Acts Evidence to Prove Knowledge or Recklessness
~ T36 Other bad acts evidence is admissible to prove a defendant's knowledge or reckless mental state, see 1 Edward J. Imwinkelried, Uncharged Misconduct Evidence § 5:24, at 65-66 & § 5:39, at 115-16 (2009), when, during the course of the bad acts, (1) the defen
¶ 37 Here, we are unconcerned with the first three modes of proving knowledge or recklessness. In his actions involving A.C., defendant did not reveal any guilty knowledge concerning his alleged acts against J.C. or gain, either directly or inferentially, knowledge of a fact, cireumstance, or risk in relation to his treatment of J.C.
¶ 38 We are, then, concerned only with whether the evidence of defendant's acts involving A.C. would be admissible under the doctrine of chances to show his mental state with respect to his actions involving J.C.
¶ 39 "The reasoning underlying [the doe-trine of chances] is that it is unlikely that the defendant would be repeatedly innocently involved in similar suspicious situations." Id. § 5:28, at 78; see id. § 5:06, at 16 ("The doctrine teaches us that the more often the defendant performs the actus reus, the smaller is the likelihood that the defendant acted with an innocent state of mind. The recurrence or repetition of the act increases the likelihood of a mens rea or mind at fault.") (footnotes omitted); see also Douglas v. People,
¶ 40 While "even dissimilar acts can be logically relevant to show intent," proof of similarity is required when, as here, the theory of logical relevance depends on the doe trine of chances. 1 Imwinkelried, Uncharged Misconduct § 5:05, at 14 & § 5:06, at 18; see People v. Spoto,
41 "Perhaps the most important factor is whether the two acts required the same state of mind. After all, the ultimate question is whether the defendant had a particular state of mind-the mens rea-at the time of the actus reus alleged in the pleading." 1 Im-winkelried, Uncharged Misconduct § 5:09, at 31 (footnote omitted).
¶ 42 Accordingly, where, 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. Spoto,
3. Application
148 In our view, evidence that, on other occasions, defendant, in anger, slapped, shook, and roughly handled a three-year-old, with no resulting serious bodily injury, has no tendency to make more or less probable the allegation that, in connection with the first degree murder charge, he knowingly caused J.C.'s death. This follows for the simple reason that defendant's past acts did not result in serious injury or death to A.C., and, thus, did not tend to demonstrate that he was aware his conduct was practically certain to cause A.C.'s (much less, J.C.'s) death. -
T44 Similarly, the evidence of defendant's other bad acts with respect to A.C. was not relevant to prove the eulpable mental state of child abuse resulting in death.
T45 In one sense, evidence of any past "knowing" or "reckless" abuse of a child could be said to tend to prove any "knowing" or "reckless" abuse of a child-even a different child-on a subsequent occasion. But this type of proof differs little, if at all, from impermissible proof of bad character or propensity-that because the person acted abusively in the past with some child, he is likely to have acted abusively on a subsequent occasion with any child. See Harvey v. State,
146 As noted above, CRE 404(b) does not always require similarity between a defendant's prior act and the charged offense. Yusem v. People,
¶ 47 Here, defendant was alleged to have injured his infant daughter by hitting her hand with a hairbrush, violently shaking her, and slamming her against a hard surface. In our view, these alleged acts bear no resemblance to the other acts admitted against him at trial.
¶ 49 Because of the dissimilarities between the prior acts against A.C. and the alleged acts against J.C., we conclude that the prior acts against A.C. were not relevant to prove the culpable mental state element of child abuse resulting in death. See, e.g., State v. Gibson,
T50 Consequently the trial court abused its discretion in admitting them for this purpose.
B. Use of Other Act Evidence to Prove Absence of Mistake
$51 The doctrine of chances also applies to the use of uncharged misconduct to disprove a claim of mistake or accident. See 1 Imwinkelried, Uncharged Misconduct § 5:11, at 40 & § 5:83, at 100. The differences mentioned above between the prior acts and the present case lead us to reject the court's conclusion that the evidence was properly admitted to prove that defendant did not mistakenly or accidentally cause J.C.'s death. Consequently, we conclude that the trial court abused its discretion in admitting the evidence for these purposes as well."
C. Harmless Error
152 Because defendant objected to the admission of the evidence in the trial court, we now consider whether the court's error was prejudicial or harmless to defendant. In his opening brief, defendant argued that the error was prejudicial because "no evidence is as likely to inflame the passions of a jury and produce a verdict based on prejudice as is evidence that the defendant has a history of violence and abuse towards his own daughters," and because "the case hinged, almost entirely, on a battle of experts":
Thus, in light of the highly controverted and less than overwhelming evidence of the defendant's guilt, the improper introduction of the prior, alleged incidents involving A.C. was extremely prejudicial.
1 53 In their answer brief, the People did not address this issue.
troublesome in two respects. First, it would place a heavy burden on the reviewing court, deprived as it would be of the guidance of the parties on the question whether particular errors were harmless. Second, it would invite salami tactics. In its main brief and at oral argument the government would argue that there was no error, hoping to get us to endorse its view of the law. If it failed in that endeavor it would file a petition for rehearing, arguing as it does in this case that it should win anyway because the error was harmless. Such tactics would be particularly questionable in a case such as this where the defendant goes out of his way to argue that the error of which he complains was prejudicial, and the government by not responding signals its acquiescence that if there was error, it indeed was prejudicial.
United States v. Giovannetti,
¶ 55 Nevertheless, an appellate court is authorized to disregard a harmless error even when a harmless error argument has not been made in the briefs. See, e.g., Giovannetti,
¶ 56 "The reversal of a conviction entails substantial social costs: it forces jurors, witnesses, courts, the prosecution, and the defendants to expend further time, energy, and other resources to repeat a trial that has already once taken place; [and] victims may be asked to relive their disturbing experiences." United States v. Mechanik,
¶ 57 Because of the nature of the case, and the significant societal costs attending a retrial, in the initial opinion issued in this case, we undertook a harmless error analysis despite the People's failure to argue that point. And we concluded that, as argued by defendant, the error was prejudicial, warranting a new trial.
¶ 58 In response to our initial opinion, the People filed a petition for rehearing, extensively arguing that we should have held the trial court's erfor harmless. We acknowledge that, by not arguing this point until the petition for rehearing was filed, the People reduced the likelihood that defendant would have an opportunity to respond. See C.AR. 40(a) ("No answer to a petition for rehearing will be received unless requested by the court."). Indeed, it is for this reason that we will ordinarily not address arguments raised for the first time in a petition for rehearing. See, e.g., People v. Gallegos,
¶ 59 That said, in their petition for rehearing, the People addressed an issue that we had opted to address in our initial opinion. Given this circumstance, as well as the magnitude of the crimes alleged in this case, we elect to take the unusual step of addressing the People's belated harmless error argument. We do so, however, after having (1) directed defendant to respond to the People's harmless error argument; (2) considered defendant's response; and (8) closely examined the record, in light of governing (and more specific) legal standards for differentiating between prejudicial and harmless error.
¶ 60 Because the trial court's error is not one of constitutional dimension, Yusem,
¶ 61 An error of noneonstitutional dimension is prejudicial where there is a reasonable probability that it contributed to a defendant's conviction by substantially influencing the verdiet or impairing the fairness of the trial. People v. Jones, (Colo.App.2011) (cert. granted
¶ 62 To obtain reversal here, then, defendant "must establish a reasonable probability that the [other bad acts] evidence contributed to [his] conviction." See 2 Imwinkelried, Uncharged Misconduct § 9:86, at 9-278 to 279.
¶ 63 As used in this context, "a reasonable probability" does not mean that it is "more likely than not" that the error caused the defendant's conviction. See Krutsinger v. People,
If we assume a spectrum of probabilities with zero percent at one end representing no likelihood of a different result and one hundred percent at the other end representing absolute certainty of a different result, we can array verbalizations of probabilities across that spectrum. A "mere possibility" is at the low end of the spectrum, "near certainty" is at the high end, and "more probable than not" is a likelihood greater than fifty percent....
... [The United States Supreme Court has stated: "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland v. Washington,466 U.S. 668 , 694,104 S.Ct. 2052 , 2068, 80 LEd.2d 674 (1984). Although the United States Supreme Court's interpretation of "reasonable probability" is not binding on this Court when construing state criminal rules, we are persuaded that defining the substantively identical term "reasonable likelihood" by reference to a reviewing court's confidence in the outcome of trial makes good sense in determining whether reversible error has occurred. Rules that govern criminal proceedings are meant to ensure that a trial is a search for truth and that the verdict merits confidence. It is entirely consistent with this aim to require that when error has eroded a reviewing court's confidence in. the outcome of a particular trial, we should start over and conduct a new trial.
State v. Knight,
¶ 64 In assessing the effect of improperly admitted bad acts evidence, an ap-
165 "When the court improperly admitted uncharged misconduct evidence, 'the most relevant factors to be considered are the strength of the state's case and the impact of the improperly admitted evidence on the trier of fact'" Martin V.,
T 66 After carefully considering, in light of the above-mentioned principles, the People's petition for rehearing, defendant's response thereto, and the record, we now conclude that defendant has failed to demonstrate prejudicial error.
T67 In reaching this conclusion, we acknowledge the danger that is created whenever a trial court erroneously admits evidence of uncharged misconduct.
T68 Further, a close examination of the record reveals that defendant's alleged abuse of A.C. did not play a significant role in the case. Inclusive of opening statements and closing arguments, the trial here lasted four days, comprising 748 pages of transcript. Only. two of the prosecution's twelve witnesses mentioned the A.C. incidents; fewer than five pages of transcript were devoted to the prosecution's elicitation of that evidence and comment upon it in closing argument; and fewer than six pages were devoted to defendant's eliciting testimony about or commenting on the incidents. The description of the alleged acts against A.C. did not even appear on all of those pages: although the acts were specifically described by the two witnesses, neither party repeated those de-seriptions in opening statements or closing arguments (ie., the prosecution generically referenced the incidents as involving "anger issues," and defendant described them as his having been "rough" or having "interactions" with A.C.). Cf 2 Imwinkelried, Uncharged Misconduct § 9:87, at 9-288 ("If the amount of testimony focusing squarely on the charged offense dwarfs the uncharged misconduct evidence, there is a reduced probability that the uncharged misconduct caused the conviction.").
169 Moreover, "the single most important factor" in a nonconstitutional harm
[Alppellate assessment of the "closeness" of an issue as it probably appeared to a jury is of course a highly judgmental process, involving much more of feel than of science. While assessing closeness necessarily requires looking to the probative force of other evidence tending to prove the issue, that ... is not for the purpose of determining whether, if independently considered, that evidence would have sufficed to convict. The inquiry into "closeness" instead involves assessing whether the other evidence is not only sufficient to convict, but whether it is sufficiently powerful in relation to the tainted evidence to give "fair assurance" that the tainted evidence did not "substantially sway" the jury to its verdict.
Ince,
170 Here, there were no eyéwitnesses, other than defendant, to what happened to J.C.; defendant had proffered, in his out-of-court statements, an innocent explanation for her injuries and death; and there was conflicting expert testimony on the cause of J.C.s injuries. That said, however, the case against defendant was not "close."
T71 The central issue in the case was whether or not the injuries that caused J.C.'s death were attributable to an accident. The prosecution presented cireumstantial evidence tending to disprove defendant's explanation of accident (ie., defendant, upon his arrest, asked, "What do I have to do to get out of this?"; the girlfriend delayed reporting J.C.'s supposed fall off the bed until the preliminary hearing two and a half months after J.C.'s death, and gave an inconsistent statement regarding the fall at trial; and the girlfriend, after defendant's arrest, replaced the bed that J.C. allegedly fell off with another bed of a different height).
T72 In his defense, defendant presented only one witness-a pathology expert who testified about the possible causes of J.C.'s head and other injuries.
173 A "close case" can exist when experts on either side are in "sharp dispute" as to the central issue in the case. See Gompers v. Finnell,
174 Here, although the parties presented opposing expert testimony, the experts' opinions were not directly conflicting, or sharply in dispute, as to the central issue in the case.
T75 Based upon her constellation of injuries (generally), and her skull fracture and brain injuries (specifically), the experts opined that J.C. died as a result of "non-accidental trauma," "severe inflicted traumat
¶ 76 In contrast, defendant's theory was that J.C. rolled off a bed and struck her head a week before she died, and was awake and responsive on the morning that she was taken to the hospital. In support of this theory, defendant's pathologist opined that a short fall from a bed and normal childbirth could cause a skull fracture, that J.C. had blood in her brain that was at least a week old, and that J.C. did not have any neck or spinal cord injuries that normally accompany a shaking.
¶ 77 However, defendant's expert could (or would) not give an opinion on the manner of J.C.'s death. Although she stated that there were "factors that led her to believe that there may be other explanations [than non-accidental injury] for what happened to J.C.," she conceded that it "could be" non-accidental trauma. And, when asked her "opinion about the manner of [J.C.'s] death," she said, "I can't tell you ... because it should have been worked up a little more thoroughly to draw that conclusion."
¶ 78 In our view, because defendant's expert (and sole witness) was unable to opine that J.C.'s fatal injuries were accidentally inflicted, the central issue in this case was not sharply disputed, and, consequently, the case was not "close" because of "dueling experts."
¶ 79 Additionally, the People's experts undermined the plausibility of defendant's theory that J.C. had, a week earlier, rolled off a bed and struck her head:
• Two experts testified that children of J.C.'s age cannot roll over;
• Four experts opined that a short fall from a bed could not have caused the injuries J.C. sustained16 ;
• Two experts opined that a fall from a bed would be inconsistent with J.C.'s injuries because a fall would create a brain injury "localized ... where the skull fracture was" instead of the "mul-ti-focal [skull] injuries" in J.C.'s case. Indeed, the pathologist testified that J.C.'s head injuries were indicative of "at least four direct impacts ... the fracture ... being the worst one";
• Three experts testified regarding the type of force needed to inflict J.C.'s injuries: the first equated it to a "very severe car wreck" or hitting someone with a baseball bat; the second called it "violent" and "tremendous"; and the third stated that it was the "equivalent of grabbing ... a child around the torso ... and forcefully slamming [him or her) against the floor or. counter";
• Two experts opined that J.C.'s injuries resulted from "recent trauma," which occurred either the morning of or "minutes or an hour preceding" her arrival at the hospital";
• Four experts testified that there was no evidence of "old" blood in J.C.'s brain; and
• All five experts opined that J.C.'s "catastrophic" injuries. would have produced immediate symptoms, that is, she would not have had 'any period of lucidity, and would not have been able to make eye contact, smile, or drink a bottle.17
¶ 80 Under these circumstances, it must be recognized that, the prosecution presented a strong case against defendant, apart from
¶ 81 Given the few (including, sometimes only generic) references to the inadmissible evidence, and the legitimate strength of the prosecution's case against defendant, we conclude that defendant has not shown a reasonable probability that the error in admitting the evidence contributed to his: conviction: the likelihood of a different outcome, if the evidence had not been admitted, is not sufficiently high to undermine our confidence in the jury's verdict. Consequently, the error was harmless.
¶ 82 The judgments of conviction are affirmed.
Notes
. The jury also heard evidence that J.C. had a bruise on her right hand that one expert thought resulted from defendant's hitting her with a hairbrush that was found in the home. ’
. Defendant should have endorsed this witness no later than thirty days before trial. See Crim. P. 16(V)(b)(1).
. To the extent that defendant asserts that the trial court should have allowed his expert to testify via video deposition or continued the trial, we note that he presents these options, not as separate arguments, but as part of his contention that the court had alternatives available other than excluding his expert from testifying. However, as we noted, the court did not exclude his expert from testifying; it simply required the expert to present his testimony in court. In any event, denial of these requests was not an abuse of discretion, inasmuch as (1) defendant moved for a video deposition eleven days before trial, and the continuance, only the day before trial; (2) the case had been pending for over two and a half years; (3) the court had already granted defendant two continuances; (4) trial had been set for five months; and (5) the expert was known to the defense at least two (and perhaps seven) months prior to the scheduled trial date. See, e.g., Cherry Creek Sch. Dist. No. 5 v. Voelker,
. A closed-circuit television procedure may be used to obtain the live testimony of a child who "at the time of a trial is ... less than twelve years of age" when "[the judge determines that testimony by the witness in the courtroom and in the presence of the defendant would result in the witness suffering serious emotional distress or trauma such that the witness would not be able to reasonably communicate." § 16-10-402(1)(a), C.R.S.2011.
. "[Elvidence of other acts often suggests bad character and action in conformity therewith. However, 'this] third prong ... does not demand the absence of the inference but merely requires that the proffered evidence be logically relevant independent of that inference.' ""' Masters v. People,
. However, if the crime is committed under circumstances qualifying as first degree murder of a child under twelve, a defendant is to be convicted of first degree murder. § 18-6-401(7)(a)(I), (c), C.R.S.2011.
. For example, a defendant makes a statement during either (1) a prior act, about an upcoming event, or (2) in a subsequent act, about a past act. See 1 Imwinkelried, Uncharged Misconduct § 5:25, at 68.
. For example, in a public indecency case, the prosecution, to show that the defendant realized his neighbors could see him standing in the front room window, naked, could prove that, on prior occasions the police had warned him of complaints from his neighbors about such activity. See 1 Imwinkelried, Uncharged Misconduct § 5:26, at 69-70.
. For example, in a case involving allegations that the defendant knowingly received stolen goods from another, the prosecution could prove that the defendant had, on a prior occasion, received stolen goods, under suspicious circumstances, from the same individual. See 1 Im-winkelried, Uncharged Misconduct § 5:27, at 73-74.
. We recognize that the doctrine of chances can also be used to prove the actus reus of a crime. See Everett,
. "Studies ... indicate that the admission of a defendant's uncharged misconduct significantly increases the likelihood of a jury finding of liability or guilt" because it "stigmatizes the defendant[,] and predisposes the jury to find him liable or guilty." 1 Imwinkelried, Uncharged Misconduct § 1:2, at 6; see also Thompson v. State,
. See Montgomery v. State,
. The dissent posits that the jury could have confused defendant's observed conduct against A.C. with the circumstantial evidence of J.C. injuries because, immediately after the witness testified regarding defendant's throwing A.C. into a car, the prosecutor asked whether the witness visited J.C. in the hospital. However, because the prosecutor prefaced the visit to the hospital question by reminding the witness (and the jury) of the date on which J.C. was taken to the hospital, it is unlikely that the jury would have been confused about the two incidents.
. These areas were emergency medicine, internal pediatric medicine and pediatric critical care, forensic pathology, pediatric neurosurgery, and pediatrics and diagnosing and treating child abuse.
. None of the experts wavered on, or retreated from, these opinions during cross-examination. In light of this evidence, we disagree with the dissent's suggestion that the evidence may have been weak on the cause of J.C.'s injuries.
. On cross-examination, the pathologist acknowledged that a "low level" fall could cause a subdural hematoma; however, on redirect, the doctor clarified that J.C. did not die of a subdural hematoma, as well as that, although there was a one in two million chance that a short fall could be fatal, she would not expect to see J.C.'s constellation 'of injuries from a short fall.
In addition, another expert testified that a fall from a third or fourth story floor onto concrete- and not a fall from a bed-could have produced J.C.'s injuries.
. The prosecution's experts also testified that (1) J.C.'s skull fracture did not result from the birthing process and (2) neck injuries are uncommon in shaken baby cases.
Dissenting Opinion
dissenting.
¶ 83 I agree with Parts I, II, ILA, and IIIB of the majority opinion. I respectfully dissent from Part III. C, the portion of the opinion affirming the judgment of conviction on the basis of harmless error. Instead, I would, as the original opinion concluded, reverse the conviction and remand for a new trial.
¶ 84 There is no dispute that defendant, through counsel, lodged appropriate objections to the introduction of the other acts evidence. Having concluded that the admission of the other acts evidence was error, this division is next asked to determine whether the introduction of that evidence prejudiced defendant. Error is deemed harmless where there is no reasonable probability that the error contributed to the defendant's convietion by substantially influencing the verdict or impairing the fairness of the trial. People v. Jones, (Colo.App.2011) (cert. granted
¶ 85 In a child abuse case like this, where emotions are especially heightened, the reasonable probability that the other acts evidence would sway a jury is unmistakable. See Montgomery v. State,
¶ 86 The danger that other misconduct, independent of the charged crime, can bias a jury forms the basis of fundamental principles of our legal system, including that
a person is tried only for those crimes with which he has been charged; the penalties of criminal law are appropriately imposed only for the unlawful activity charged, not for bad character or predisposition; [and] admissible evidence at trial is generally limited to proof of [those] events which form the bases of the charges.
Ali v. United States,
¶ 87 Because defendant was the only person with the child the day of her injuries, the case is necessarily based on circumstantial evidence. Thus, both sides relied on various experts, including forensic experts, to persuade the jury what happened to the child, how it happened, and who was responsible.
¶ 88 Most of the doctors' trial testimony focused on the injuries to the child. Con-cededly, there was overwhelming evidence
1 89 Without the benefit of the jury's deliberations, which are necessarily confidential, it is impossible to know how the trial would have ended based on the expert opinion alone, and without the "other acts" evidence. See generally, Yusem, 210 P.8d at 470 (analyzing whether the admission of other acts evidence was reversible error and concluding that prejudicial evidence that discredited defendant's testimony "may have unfairly tipped the seales in favor of the People"); see also People v. Salazar,
€T90 So damaging was the evidence that defendant's counsel opened the case by asking the jury not to judge the then twenty-one-year-old defendant by whether his eighteen-year-old girlfriend's family liked him or by whether that same family accused him of mistreating A.C., who was about three years older than J.C. and was injured in a different manner and under different cireumstances many months earlier.
191 As the majority agrees, the trial court's admission of these two separate incidents against A.C. was improper. See also Shepard v. United States,
T92 Despite defense counsel's efforts to show that other people had access to J.C. in the days before she was injured and that defendant's interactions with J.C. were play
T93 Because I cannot say that the other acts evidence did not impair the fairness of this trial or that there was a reasonable probability that the erroneously admitted evidence did not contribute to this conviction, I would reverse and remand for a new trial. Yusem,