Lead Opinion
delivered the Opinion of the Court.
We granted certiorari to review certain questions regarding the court of appeals' de-cisión reversing the convictions of Gerald Deskins (Deskins) for three counts of vehicular homicide,
1. Whether the defendant, who faced both substantive charges and habitual criminal charges, was adequately advised of his right to testify.
2. Whether the court of appeals erred in holding that reckless child abuse does not require an awareness by the accused that his conduct could result in injury to a child rather than an adult.
Because we find dispositive our recent decision in People v. Gray,
On the second issue, we agree- with the court of appeals that the defendant was properly convicted of the child abuse charges; Thus, we affirm in part and reverse in part.
I
In August, 1992,. Deskins, while driving under the influence of alcohol, collided with another car occupied by a woman and four children. As a result of the collision, three of the children were killed and the woman and one child sustained serious injuries.
At trial, out of the presence of the jury, the trial court gave Deskins the following
Sir, you are advised that you have both the right to remain silent and the right to testify. That decision is your decision certainly to be made with the advice and assistance of your attorney and whoever else you may have conferred with, but the decision is yours.
If you decide not to testify before the jury and exercise your right to remain silent, you are entitled to an instruction to the jury that they are to draw no inference of guilt from the fact that you did not testify. If you decide to testify anything you do say to the jury can be used for you and against you, and you would be subject to cross-examination and impeachment.
And in this ease we are aware that there are prior felony convictions upon which you may be impeached, and the jury would have the opportunity to know and hear of the fact that you have prior felony convictions. And would be entitled to an instruction or the People would be entitled to an instruction on credibility with regard to prior criminal convictions.
In its opinion, the court of appeals noted that the trial court did not specifically advise Des-kins that his prior felony convictions were admissible only for the limited purpose of credibility. Deskins,
In its ruling, the court of appeals relied on its earlier decision in People v. Gray,
The trial court’s duty to make an on-the-record advisement of the defendant’s right to testify was established in People v. Curtis,
that he has a right to testify, that if he wants to testify then no one can prevent him from doing so, that if he testifies the prosecution will be allowed to cross-examine him, that if he has been convicted of a felony the prosecutor will be entitled to ask him about it and thereby disclose it to the jury, and that if the felony conviction is disclosed to the jury then the jury can be instructed to consider it only as it bears upon his credibility. In connection with the privilege against self-incrimination, the defendant should also be advised that he has a right not to testify and that if he does not testify then the jury can be instructed about that right.
Id. at 514 (emphasis added). The critical part of the Curtis advisement for both Gray and the case now-before us is the underscored language above. In Gray, we were divided on the question of whether an advisement must inform the defendant that prior felony convictions could be used only for the purpose of impeaching the defendant’s credibility or words to that effect. See Gray,
The advisement given in the present case cannot be distinguished from the advisement given in Gray. Both advisements informed the defendant that prior felony convictions could be used by the prosecution to impeach him on cross-examination. In Gray, the trial court advised, ‘“If you do testify you should note that the District Attorney will be able to cross-examine you about the facts of this particular case.’” Gray,
I understand from my review of the file that there is some issue as to whether or not you have been convicted of six prior felonies, at least that’s the allegation with respect to the other part of this case. As a result of that, I anticipate that if you testify the District Attorney will inquire of you as you are testifying about the existence of these six prior felonies. The six prior felonies would be admissible with respect to credibility. The District Attorney can in fact talk about them.
Gray,
And in this case we are aware that there are prior felony convictions upon which you may be impeached, and the jury would have the opportunity to know and hear of the fact that you have prior felony convictions. And would be entitled to an instruction or the People would be entitled to an instruction on credibility with regard to prior criminal convictions.7
(emphasis added). Therefore, in light of our decision in Gray, we hold that the advisement given in this case with respect to prior felonies was adequate to assure that Deskins knowingly, voluntarily, and intentionally waived his right to testify.
II
The second issue on which we granted certiorari concerns whether the defendant can be convicted of reckless child abuse when there was no evidence that he knew that his conduct could result in injury to a child rather than to an adult. The defendant contends that at the time of the accident he was not aware that there were children in the car that his vehicle struck. He argues that without such an awareness, he should not be held liable for child abuse.
The specific statute in question states that a person is guilty of child abuse if he or she “causes an 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_” § 18-6-401(1), 8B C.R.S. (1996 Supp.). A child is defined as a person under sixteen years of age. § 18-6-401(2), 8B C.R.S. (1986). The statute also states that where death or serious bodily 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.
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(Ill) 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.8
§§ 18-64t01(7)(a)(I) and (III), 8B C.R.S. (1986).
The culpable mental states applicable to a 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. Lybarger v. People,
Deskins contends that the court of appeals’ interpretation of section 18-6-401 is in direct conflict with other decisions of this court. Deskins cites People v. Christian,
We have long recognized that the General Assembly is entitled to provide for more severe penalties for different crimes, so long as the classification of crimes reflects substantial differences in the proscribed conduct which have a reasonable relationship to the public purpose sought to be achieved. Otherwise, the statute may violate the constitutional principle of equal protection. People v. Montoya,
In Taggart, the defendant was charged with and convicted of child abuse resulting in serious bodily injury. Taggart,
The other case cited by the defendant, People v. Christian,
Deskins argues that the equal protection discussions in Taggart and Christian actually require a previously unrecognized or unacknowledged “knowing” or “awareness” mens rea requirement for reckless child abuse. In our view, neither Taggart nor Christian requires that the actor be aware that the specific person injured was a child and not an adult. In these cases, the court was simply concerned with whether the requirements of the statutes satisfied equal protection. We concluded that equal protection was satisfied
As part of his argument, Deskins contends that the standard for a reckless act requires that the actor be conscious of the risk involved. According to Deskins, a conscious disregard of the risk involved in this case requires the actor’s awareness of the presence of children. We agree that the plain language of the statutory definition of recklessness requires that the actor consciously disregard a substantial and unjustifiable risk. § 18-1-501(8), 8B C.R.S. (1986). We also agree that conscious disregard necessitates an awareness of what the risks are. However, the awareness required for reckless child abuse is simply the risk that one’s conduct could result in an injury to a child’s life or health. § 18-6-401(1), 8B C.R.S. (1996 Supp.). Therefore, the risk in this ease was not that children might be in the actual ear that Deskins’ vehicle hit that night. On the contrary, what Deskins consciously disregarded when he drove while drunk was the risk that children would be passengers in any of the cars on the road that night. In our view, the record was sufficient for the jury to conclude that Deskins disregarded this risk and that the risk was substantial and unjustifiable.
The defendant essentially contends that he should be relieved of criminal liability because he was not “aware” of the age of his victims. A similar argument has been rejected in cases involving abuse of the elderly. In People v. Suazo,
We find the rationale of the Suazo decision equally applicable here. In this case, the language of the statute requires that Deskins disregard a substantial and unjustifiable risk that his conduct may cause death or injury to a child. The legislature has indicated that the victim’s age is part of the offense of child abuse by defining a child as a person under sixteen years old. § 18-6-401(2), 8B C.R.S. (1986). As in Suazo, the General Assembly had the prerogative to determine if a mistake of age defense was appropriate and did not do so. Therefore, we hold that the standard for reckless child abuse does not require the actor’s awareness that the victim was a child.
Ill
For these reasons, we affirm in part and we reverse in part the judgment of the court of appeals. We remand the case with directions to the court of appeals to address the appellate issues which it did not reach in its earlier opinion because of its disposition of the Curtis issue.
Notes
. § 18-3-106, 8B C.R.S. (1996 Supp.).
. § 18-6-40 l(7)(a)(I), 8B C.R.S. (1986).
. § 18-3-205, 8B C.R.S. (1996 Supp.).
. § 42-4-1202, 17 C.R.S. (1996 Supp.).
. § 18-6-401 (7)(a)(III), 8B C.R.S. (1986).
. § 16-13-101, 8A C.R.S. (1986).
. Deskins argues that the portion of the advisement quoted above is confusing and did not clearly inform him that he, Deskins, was entitled to an instruction on credibility. Fairly read, however, the underscored language shows that the trial court intended to refer to "you," i.e. the defendant. We also note that there was no objection or request for clarification when the advisement was given.
. According to the statutory definition,
[a] person acts "knowingly” ... with respect to conduct or to a circumstance described by a statute defining an offense when he is aware that his conduct is of such nature or that such circumstance exists. A person acts "knowingly," ... with respect to a result of his conduct, when he is aware that his conduct is practically certain to cause the result.
§ 18-1-501(6), 8B C.R.S. (1986).
The statutory definition of recklessly states that a person acts recklessly “when he consciously disregards a substantial and unjustifiable risk that a result will occur or that a circumstance exists.” § 18-1-501(8), 8B C.R.S. (1986).
Concurrence Opinion
concurring in part and dissenting in part:
While I would uphold the convictions and life sentences imposed against Gerald Des-kins for vehicular homicide and the habitual offender counts and thus concur in part I of the majority opinion, I do not join in part II of that opinion. I dissent from part II because I believe that under the facts present here, while Deskins could be found guilty of child abuse, § 18-6-401(1), 8B C.R.S. (1986 and 1992 Supp.), the enhanced sentence
I
A
Section- 18-6-401, 8B C.R.S. (1986 and 1992 Supp.), the controlling statute, provided at the time of the offense:
(1) 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 which poses a threat of injury to the child’s life or health....
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(7)(a)(I) When a person acts knowingly or recklessly and the child abuse results in death to the child, it is a class 2 felony.
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(7)(a)(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.
(Emphasis added.) While the majority places great reliance upon Lybarger v. People,
In Lybarger, Jon Lybarger was charged with felony child abuse resulting in death when his five-week-old daughter died from respiratory failure due to acute necrotizing bronchial pneumonia. Lybarger did not follow the advice of a licensed practical nurse and faded to take his daughter to a doctor or hospital when she suffered from congestion, coughing, inability to breathe, and other pneumonia or cold-like symptoms. Instead of medical care, Lybarger opted to rely solely on prayer as a means of treating his daughter’s illness. Lybarger was a recognized minister in the Word of Faith Evangelistic Association, a small fundamentalist Christian religious organization. In accordance with the tenets of his religious beliefs, Lybarger and his wife relied on spiritual treatment through prayer to improve their child’s health, denying the child much needed medical attention. While we reversed Ly-barger’s conviction because the trial court erroneously instructed the jury on the “treatment by spiritual means” defense, we discussed “the statutory scheme relating to the crime of child abuse resulting in death.” Id. at 575.
In Lybarger, there was a nexus between the defendant’s conduct and the circumstances or condition of the child. To the contrary, in this case, other than the event of the accident, there is no identifiable relationship or nexus between the defendant and the child victims. Although we are confronted with a most unfortunate accident and while I do not disagree that the defendant must be held accountable for the natural and probable consequences of his acts,
As we held in Lybarger, the “crime of child abuse [does not] relate[ ] 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.” Id. In my view, the defendant’s culpability requires a purposeful act or omission which the defendant should realize is dangerous to a child’s safety. It is the defendant’s conduct, under circumstances he is aware of, that is the nature of the prohibited conduct set forth in subsections 7(a)(1) and 7(a)(III) of section 18-6^01.
I would find culpability under similar facts if the defendant had placed his own or other children in his car under his diminished driving capacity and proceeded, as he did, to drive his car. Such willful and wanton conduct, which creates a potential of harm to children the defendant knows or should know are subject to his acts, is, in my view, the minimum mens rea necessary for liability under the statute. Thus, under these facts, the nexus between the defendant and the victim, based on defendant’s awareness of the presence of a child, is lacking and therefore, insufficient for a reckless or knowing state of mind.
B
In their treatise, Substantive Criminal Law, professors LaFave and Scott discuss recklessness and negligence:
It came to be the general feeling of the judges when defining common law crimes (not always so strongly shared later by the legislatures when defining statutory crimes) that something more was required for criminal liability than the ordinary negligence which is sufficient for tort liability. The thought was this: When it comes to compensating an injured person for damages suffered, the one who has negligently injured an innocent victim ought to pay for it; but when the problem is one of whether to impose criminal punishment on the one who caused the injury, then something extra — beyond ordinary negligence — should be required. What is that “something extra” which the criminal law generally requires? It might logically be either one or both of two things: (1) Perhaps the defendant’s conduct must involve a greater risk of harm to others than tort negligence requires. In other words, perhaps a “high degree of negligence,” rather than “ordinary negligence,” is necessary. (2) Perhaps, without requiring any riskier conduct than is necessary for ordinary negligence, the criminal law might require that the defendant consciously realize, in his own mind, the risk he is creating — a realization which is not required in the case of ordinary negligence. In other words, perhaps the difference between ordinary negligence and criminal negligence is simply that objective fault will do for the former, while subjective fault is required for the latter. (3) Perhaps the criminal law might require both (a) conduct creating a higher degree of risk than is necessary for ordinary negligence and (b) a subjective awareness that the conduct creates such a risk. The term “recklessness” is sometimes used to designate conduct which involves these two extra factors, (a) and (b), in addition to the requirements of ordinary negligence. The other expression commonly used to indicate something more than ordinary negligence is “gross negligence,” but that expression does not give any clue as to whether it is greater riskiness or subjective realization of risk or both which goes into the word “gross.”
Wayne R. LaFave & Austin W. Scott, Jr., Substantive Criminal Law § 3.7, at 326 (1986) (footnote omitted). In reading, once again, our statutory scheme, I would hold that while subsection 18-6-401(1) contemplates “criminal negligence,” the aggravated sentences called for in subsections 18-6-401(7)(a)(I) and (a)(III) certainly require “subjective fault” or “a subjective awareness.”
We held in Lybarger that “the culpable mental states applicable to a 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.” Lybarger,
I believe a greater level of intent is necessary to meet our use of the language “in light of the child’s circumstances.” As I read Lybarger, our use of that phrase makes an actual awareness of the child’s circumstances integral to any culpability. It therefore requires us to consider the defendant’s acts in relation to the child and not allow culpability to rest on mere unreasonableness. In particular, the use of the terms “knowingly or recklessly,” I would hold, requires a determination that the defendant’s conduct must be purposeful and committed without regard to “injury to the child’s life or health.”
The statutory language was applied easily in Lybarger because the “child’s circumstances” were known to Lybarger. Lybar-ger clearly knew that his daughter was ill. In contrast, in this case, the defendant did not know of “the child’s circumstances” because, despite the unreasonableness of his acts, he did not act with a “subjective awareness” that his conduct would result in serious bodily injury or death to a child.
II
I agree with the majority that our recent decision in People v. Gray,
Ill
Accordingly, while I join part I, I respectfully dissent as to part II of the majority opinion.
. Section 18-6 — 401 was amended in 1995. However, those amendments did not alter the language of the particular provisions relevant here.
. As indicated in the majority opinion, the defendant, Gerald Deskins, has been convicted of three counts of vehicular homicide and habitual offender counts resulting in a sentence to five consecutive terms of life. Maj. op. at 369. However, even if we reverse the aggravated child abuse conviction, Deskins will serve more than one term of life under his current sentence. A conviction of child abuse resulting in death, an additional count, is of little consequence in this case. However, it is the future cases involving defendants in circumstances not so egregious and which result in "serious bodily injury to [a] child" that are of concern to me.
. People v. Curtis,
Dissenting Opinion
dissenting:
We granted petitions for certiorari review filed by the People and by the defendant, Robert Deskins, to consider two issues addressed by the court of appeals in People v. Deskins,
I
In People v. Curtis,
A trial court exercising appropriate judicial concern for the constitutional right to testify should seek to assure that waiver is voluntary, knowing and intentional by advising the defendant outside the presence of the jury that he has a right to testify, that if he wants to testify then no one can prevent him from doing so, that if he testifies the prosecution will be allowed to cross-examine him, that if he has been convicted of a felony the prosecutor will be entitled to ask him about it and thereby disclose it to the jury, and that if the felony conviction is disclosed to the jury then the jury can be instructed to consider it only as it bears upon his credibility. In connection with the privilege against self-incrimination, the defendant should also be advised that he has a right not to testify and that if he does not testify then the jury can be instructed about that right.... The purposes of the advisement by the court on the record are to ensure that waiver of a fundamental constitutional right is intelligent and knowing, to preclude postconviction disputes between defendant and counsel over the issue, and to facilitate review.
Id. at 514-15 (footnote and citations omitted).
Of crucial importance in this advisement is the specific requirement that the defendant know and understand that if he or she elects to exercise the constitutional right to testify, the prosecution may disclose to the jury the fact, if such be the case, that the defendant has been convicted of a felony, but that the jury will also be instructed that such fact may be considered only for purposes of credibility. See People v. Chavez,
The record in the present ease establishes that the trial court’s advisement to the defendant did not contain this crucial information concerning the fact that the defendant had previously been convicted of numerous felonies. The advisement consisted in pertinent part of the following two sentences:
[I]n this case we are aware that there are prior felony convictions upon which you may be impeached, and the jury would have the opportunity to know and hear of the fact that you have prior felony convictions. And would be entitled to an instruction or the People would be entitled to an instruction on credibility with regard to prior criminal convictions.
Maj. op. at 370.
The second sentence of this instruction is both erroneous and ambiguous. It is erroneous in expressly indicating that only the People would be entitled to an instruction concerning the effect of the defendant’s prior
The majority concludes that the language of the instant advisement is indistinguishable from the language of the advisement a divided court found sufficient in Gray.
[A]nd the jury would have the opportunity to know and hear of the fact that you have prior felony convictions. And [the jury] would be entitled to an instruction or the People would be entitled to an instruction on credibility with regard to prior criminal convictions.
If the court’s actual advisement were understood by the defendant to refer to the jury’s right to an instruction, the defendant would know only that if he testified the jury would be able to learn of his prior convictions and only the prosecution would be entitled to request an instruction regarding those convictions.
As the People’s argument acknowledges, these post-hoc deconstructions of the trial court’s actual language take on a surrealistic quality. Such exercises also suggest that a defendant should be deemed to have made all appropriate interpolations of ambiguous trial court language to support a conclusion that the defendant has voluntarily, knowingly, and intentionally waived the right to testify — a principle we rejected in Curtis. The rule adopted in Curtis was designed not only to safeguard a defendant’s fundamental constitutional right to testify but also to avoid precisely the kind of post-trial semantic dueling the parties to this litigation must necessarily undertake in the face of the trial court’s ambiguous and erroneous advisement. Curtis,
In my view, the language actually used by the trial court is simply not sufficiently precise to permit this court to conclude that the
II
I must also respectfully dissent from the majority’s construction of sections 18-6-401(7)(a)(I) and 18-6-401(7)(a)(III), defining certain types of child abuse offenses, and in its application of those statutes to the facts of this ease.
The General Assembly has defined child abuse as “[causing] an injury to a child’s life or health.” § 18-6-401(1), 8B C.R.S. (1996 Supp.). TMs defimtion contains no mens rea element. However, the General Assembly has defined the mens rea elements applicable to the offense of child abuse in portions of the criminal code specifying potential penalties for said offenses, as follows:
(I) When a person acts knowingly or recklessly and the child abuse results in death to the child it is a class 2 felony.
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(Ill) 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.
§§ 18-6-401(7)(a)(I), -401(7)(a)(III), 8B C.R.S. (1986). When the General Assembly prescribes a culpable mental state as an element of an offense, that mental state is deemed to apply to every element of the offense unless an intent to limit its application clearly appears. § 18-1-503(4), 8B C.R.S. (1986). No such intent is discernible here.
In People v. Taggart,
The proscriptions of section 18-6-401 encompass conduct that is particularly abusive to children, that is directed specifically against a child, [as opposed to conduct directed toward] anyone, adult or child.
Taggart,
Here, the defendant was charged with recklessly causing death to three children and recklessly causing serious bodily injury to another child. There is no question that in driving while intoxicated, the defendant acted recklessly — he consciously disregarded a substantial risk that he might kill or seriously injure persons on or in close proximity to the road that Mght. See § 18-1-501(8), 8B C.R.S. (1986) (defimng reckless conduct). The defendant was charged with and convicted of the offenses of vehicular homicide and assault.
We have not previously considered the application of the reckless mens rea element as defined in sections 18-6-401(7)(a)(I) and 18-6-401(7)(a)(III) to the child-oriented element of child abuse that distinguishes such offenses as assaults on children from assaults
The defendant asserts that in order to be convicted of child abuse he must have known that his conduct could result in injury to a child rather than to an adult. I do not agree with this argument. As the majority notes, section 18-6-401 does not require a defendant to actually know that his or her conduct would affect a child. Maj. op. at 376. However, the statute does require that the actor’s criminal conduct be oriented in some discern-able fashion toward children as opposed to the population at large. Taggart,
In this case, the evidence establishes only that the defendant’s reckless conduct was directed toward the general population. Such conduct is punishable by the general assault and vehicular homicide statutes.
The court of appeals’ holdings in People v. Suazo,
For the foregoing reasons, I respectfully dissent from the majority opinion. I conclude that the court of appeals correctly held that the defendant must be granted a new trial in view of the trial court’s inadequate Curtis advisement. I also conclude that the defendant’s convictions for offenses of reckless child abuse must be vacated.
I am authorized to say that Justice LOHR joins in this dissent.
. The advisement in Gray included the following pertinent language:
I anticipate that if you testify the District Attorney will inquire of you as you are testifying about the existence of these six prior felonies. The six prior felonies would be admissible with respect to credibility.
Gray,
As this court unanimously agreed, this language did not expressly inform Gray of the fact that if he testified his six prior felony offenses could be considered by the jury only for purposes of impeachment. Id. at 791; id. at 794 (Lohr, J. dissenting). The majority of the court found no reversible error in the advisement administered to Gray because the trial court advised the defendant that his testimony regarding prior convictions " 'would be admissible with respect to credibility,' ” id. at 791, and because in its view "the trial court did not mislead [the] defendant.” Id. at 792. Furthermore, the majority acknowledged that "a more clear and full advisement, stating that evidence of prior felonies could be considered by the jury only for purposes of impeachment” would constitute a "better” advisement, but suggested that the fact that the record revealed that the defendant’s attorney had counseled the defendant concerning the defendant’s right to testify was significant. Id. at 791.
In this case, the ambiguous instruction did mislead the defendant. Of more significance than the differing views respecting the adequacy of the advisement expressed by the majority and minority opinions in Gray is the unanimous reaffirmation by this court of the rule and principles, as articulated in Curtis, that courts should indulge every reasonable presumption against waiver. Id. at 790.
. §§ 18-3-106 and -205, 8B C.R.S. (1992 Supp.). Vehicular homicide and assault are both defined as strict liability crimes, so as to eliminate the seldom applicable defense that even if the drunk driver had been sober and non-negligent, the accident still would have occurred.
. §§ 18-3-104(l)(a) and -205(l)(d), 8B C.R.S. (1986).
. The contrary result reached by the majority, in my view, invites constitutional challenges to the statutory scheme, challenges which we should avoid if at all possible when construing legislation. See, e.g., Colorado State Bd. of Medical Examiners v. Jorgensen,
. § 18-6.5-103, 8B C.R.S. (1996 Supp.) (crimes against at-risk adults). An earlier assault on the elderly statute, § 18-3-209, 8B C.R.S. (1986), was recently repealed and replaced with the more general and better drafted crimes against at-risk adults statute.