Lybarger v. People

• Decision Date: 18 March 1991
• Docket Number: No. 90SC2,90SC2
• Parties: Jon C. LYBARGER, Petitioner, v. The PEOPLE of the State of Colorado, Respondent.
• Court: Colorado Supreme Court

Page 570

807 P.2d 570

Jon C. LYBARGER, Petitioner, v. The PEOPLE of the State of Colorado, Respondent.

No. 90SC2.

Supreme Court of Colorado,

En Banc.

March 18, 1991.

Rehearing Denied April 8, 1991.

David F. Vela, Colorado State Public Defender, Michael J. Heher, Deputy State Public Defender, Denver, for petitioner.

Gale A. Norton, Atty. Gen., Ray Slaughter, Chief Deputy Atty. Gen., Timothy M. Tymkovich, Sol. Gen., John Daniel Dailey, Deputy Atty. Gen., Denver, for respondent.

Hamilton, Myer, Swanson & Faatz, P.C., Dwight A. Hamilton, Valerie W. Kenney, Denver, for amicus curiae The Church of Christ.

Justice QUINN delivered the Opinion of the Court.

This case is before us a second time for review of the conviction of the defendant, Jon C. Lybarger, for felony child abuse resulting in death. In People v. Lybarger, 700 P.2d 910 (Colo.1985), we reversed the defendant's conviction due to the trial court's striking sua sponte the affirmative defense of "treatment by spiritual means" created by section 18-6-401(6), 8B C.R.S. (1986), and we remanded the case for a new trial. On remand, the defendant was again convicted of child abuse resulting in death. During the second trial, the trial court instructed the jury that it was its function to determine whether the "treatment by spiritual means" defense was available to the defendant and that the defense was not available if the prosecution established beyond a reasonable doubt the essential elements of the crime of child abuse resulting in death. The court of appeals, in affirming the defendant's conviction, held that the affirmative defense was not applicable to the defendant because there was evidence "that a reason other than spiritual treatment existed to consider the child endangered ..." and that the trial court's instructions on the affirmative defense did not constitute plain error. People v. Lybarger, 790 P.2d 855, 860 (Colo.App.1989). We granted the defendant's petition for certiorari to consider the court of appeals' resolution of this case. We now reverse the judgment of the court of appeals and remand the case for a new trial.

I.

The defendant was charged with child abuse resulting in the death of his five-week-old daughter, Jessica, in that between March 13 and 15, 1982, he recklessly or with criminal negligence caused or permitted the child to be placed in a situation that endangered the child's life and health and that resulted in the child's death. The evidence on retrial was not substantially different from the evidence presented at the first trial, and we set forth here only so much of it as is pertinent to our resolution of the questions before us.

The defendant lived with his wife and nine children in a small cabin in the Estes Park area. Since approximately 1980 the defendant had been on a "walk of faith," which he described as a total reliance on God for all needs and for healing in times of illness or injury. He was a recognized minister in the Word of Faith Evangelistic Association, a small fundamentalist Christian religious organization which had members in Colorado, Arkansas, and Kansas. For some time the defendant had attended the Faith Chapel Church in Estes Park, but later began a separate ministry of his own and conducted weekly religious services in his cabin.

The theological foundation of the Evangelistic Association was described by an elder in the association, Sammie Ferdinandsten, as follows: "We just believe in God's word, which is written in what is considered the Bible, as all of God's word [H]e intended for us to have; and that we believe it all, New Testament, Old Testament, and that it is all true ..." The tenets of the Word of Faith Evangelistic Association included healing of the sick by prayer, which the defendant and other members of the association considered to be scripturally based. Members of the Evangelistic Association were permitted but were not required to rely solely on prayer as a means of treating sickness. In accordance with his religious beliefs, the defendant and his wife relied on spiritual treatment through prayer when their children became ill.

During March 1982 the defendant's five-week-old daughter, Jessica, was fighting cold symptoms. Other members of the defendant's family had come down with similar symptoms earlier in the year and in the defendant's view had recovered because of prayer, so at this time he was not particularly concerned that his baby's condition might be more serious than a common cold. On Saturday, March 13, however, the defendant observed that the baby was coughing more frequently. He accordingly contacted a church elder and asked him to contact Sammie Ferdinandsten so that they could pray for the child. Ferdinandsten and another church member, Robert McGillicuddy, drove to the defendant's home. When they arrived there, they observed that the baby had some congestion but was not feverish and appeared to be breathing without too much difficulty. The defendant, Ferdinandsten, and McGillicuddy anointed the baby with oil, laid their hands on her head, and prayed for her healing.

Shortly thereafter, two officers of the Larimer County Sheriff's Department arrived at the defendant's home after receiving an anonymous call that the baby was ill. The officers initially contacted the defendant and then examined the baby. They saw no signs of illness other than a slight congestion and determined that the child's condition was not such as to warrant contact with the Department of Social Services. The officers called Ferdinandsten outside the cabin and asked him whether the defendant would refuse to provide medical care for the baby. Ferdinandsten stated, "I don't think so, but I will ask him." When Ferdinandsten questioned the defendant about this matter, the defendant stated: "No, I would refuse no help for my baby. I think that I have helped my baby and that God is the best help for my baby." The officers, Ferdinandsten, and McGillicuddy eventually left the defendant's home.

The following morning the baby's condition showed signs of worsening. When breast feeding the baby, Mrs. Lybarger noticed that the baby had coughing spells and seemed to be choking. Because Mrs. Lybarger was exhausted from caring for several sick children and because the woodburning stove in the cabin might be drying the cabin air and aggravating the baby's cough, the defendant and his wife decided to take the baby to the home of the McGillicuddys. Upon their arrival, Mrs. McGillicuddy, who was a licensed practical nurse, noticed that the baby looked very pale and weak and, thinking that the baby might be suffering from viral pneumonia, she told her husband that the baby should be taken to a hospital. When Mr. McGillicuddy relayed this information to the defendant, the defendant stated: "We can't.... This is our walk and this is our life." Later in the evening the McGillicuddys urged the defendant and his wife to get some rest while Mrs. McGillicuddy watched the baby. While the Lybargers were resting Mrs. McGillicuddy became extremely concerned over the baby's condition and again told her husband that the baby should be taken to the hospital.

The next morning, which was Monday, Mr. McGillicuddy talked to the defendant about taking the baby to the hospital. The defendant, however, declined the suggestion, pointing out that the baby "looked 100 percent better than five hours before." Mr. McGillicuddy examined the baby at this time and also was of the view that the baby's condition had been reversed and the child was "on the way to good health." The baby seemed to be clearing phlegm from its throat, appeared more active, and showed signs of improving. When Mrs. Lybarger later sat with the baby, she noticed that the baby seemed peaceful, was breathing adequately, and was able to take fluids. Later in the day, however, the baby began to have difficulty breathing. Mrs. McGillicuddy became concerned that the baby might be taking her last breaths and tried to pat the baby on its back to see if something might dislodge from the baby's throat. Shortly thereafter the baby died.

An autopsy disclosed that the cause of death was respiratory failure due to "acute necrotizing bronchial pneumonia." A pediatrician testified that the onset of such an illness is usually sudden, over a day or a week at most. The symptoms that differentiate pneumonia from the common cold, according to the pediatrician, are very rapid respiration, an ashen or blue color around the face and fingernails or fingertips, lethargy, and an inability to feed. While the presence of a high fever would also be consistent with pneumonia, the pediatrician testified that fever may not be present in very young babies or babies who are extremely ill and unable to generate sufficient body metabolism to cause a fever. Another physician testified that the baby would have survived if she had received treatment on March 13, that she would have had a slightly better than fifty percent chance of recovery if she had been treated on or before 5:00 p.m. on March 14, and that she would have had some chance of recovery if treated a few hours before her death.

At the conclusion of the evidence the trial court conducted a conference with counsel for the purpose of settling jury instructions. The court stated that if it were to rule on the applicability of the "treatment by spiritual means" defense to this case, its ruling would be that the defense was inapplicable because "the evidence does not establish that the Defendant, as such, was a duly accredited practitioner" of a recognized church or "that the child was being treated solely by spiritual means through prayer in accordance with the tenets and practices of a recognized church or religious denomination." The court went on to state, however, that in the interest of fairness it would modify the affirmative defense instruction and submit the defense to the jury in a modified form by adding a second paragraph to the...