People v. Dunaway, No. 02SC675.

• Docket Nº: No. 02SC675.
• Citation: 88 P.3d 619
• Case Date: April 12, 2004
• Court: Supreme Court of Colorado

88 P.3d 619

The PEOPLE of the State of Colorado, Petitioner,
v.
Anthony L. DUNAWAY, Respondent

No. 02SC675.

Supreme Court of Colorado, En Banc.

April 12, 2004.

Rehearing Denied May 3, 2004.¹

88 P.3d 621

Ken Salazar, Attorney General, Laurie A. Booras, First Attorney General, Appellate Division, Criminal Justice Section, Denver, Colorado, Attorneys for Petitioner

David S. Kaplan, Colorado State Public Defender, Cynthia Camp, Deputy State Public Defender, Denver, Colorado, Attorneys for Respondent.

Justice KOURLIS delivered the Opinion of the Court.

I. Introduction

In this case, we review the conviction of Anthony Dunaway for Child Abuse Resulting

88 P.3d 622

in Serious Bodily Injury. The court of appeals reversed his conviction on the basis that the trial court instructed the jury on two alternative theories of culpability for the crime, and the evidence did not support both of those theories beyond a reasonable doubt. People v. Dunaway, No. 00CA1863, slip op. at 5 (Colo.App. June 13, 2002) (not selected for official publication). That court also concluded that, upon retrial, it would be error to admit expert opinion testimony on the amount of force typically required to cause a subdural hematoma such as the one the child victim here suffered. Dunaway, slip op. at 12

We granted certiorari, and now reverse the court of appeals. We conclude, consistent with the United States Supreme Court's holding in Griffin v. United States, 502 U.S. 46, 112 S.Ct. 466, 116 L.Ed.2d 371 (1991), that when a jury instruction includes two alternative factual theories of the same charged offense and the jury returns a general verdict of guilt, due process does not require reversal of that conviction merely because the evidence only supports one of the theories beyond a reasonable doubt. We also conclude that our holding in People v. Martinez, 74 P.3d 316 (Colo.2003), controls and that the trial court's admission of the expert testimony in this case was not error under Martinez. We therefore remand this case for reinstatement of the conviction.

II. Facts and Procedural History

On the morning of February 19, 1999, Anthony Dunaway awoke at the home of his girlfriend, Kasey Grantham, after spending the night with her. Grantham and Dunaway had been dating each other for about five months. At that time, Grantham and her two children lived with her mother in her mother's house. Grantham's older child was then aged three, and her younger child, an infant, was then aged six months.²

Around 10:00 a.m. that morning, Grantham and Dunaway took a shower together. They left the two children alone in the living room, with the infant in his "exersaucer"³ on the floor. Grantham's mother was not at home.

As Dunaway was getting out of the shower, both Grantham and Dunaway heard the baby crying. Wet and clothed only in his bath towel, Dunaway went to the living room to attend to the child. Grantham remained in the shower. As soon as he got to the living room, Dunaway hurriedly removed the baby from the exersaucer, and raised him up to eye-level. As he later demonstrated to police, Dunaway shook the baby "two to three times," paused, yelled "what's wrong?" and then slowly shook the baby one more time. Dunaway later explained to investigators that at this point, the baby "cried and arched his back [and] yawned ... like he went to sleep."

Dunaway then inserted a pacifier into the baby's mouth and placed him in his car seat on the living room floor. According to her testimony at trial, sometime during these moments, Grantham heard the exersaucer "pop" as though the baby's feet had been stuck in the seat as he was being removed from the device. Immediately after the "pop," the crying stopped and Grantham continued bathing.

When Grantham got out of the shower, she walked to her bedroom to get dressed, passing the baby in the car seat on the way. She believed at the time that the baby was taking a nap. While Grantham was getting dressed, Dunaway came into the bedroom and informed her that the baby was snoring "kind of funny."

Curious, Grantham immediately went to check on the baby and noticed that the snoring was unusual; the baby repeatedly took short, staccato breaths followed by grunts. Grantham listened to the baby's unusual breathing for about a minute before she

88 P.3d 623

picked him up. When she raised the baby out of the car seat, he went limp and his eyes remained half shut. The grunting continued. According to Grantham, the baby appeared as though "he wasn't there."

Grantham began to panic. She yelled out to Dunaway that she should call 911 or her mother. Dunaway responded: "No, no, he's fine. He's fine. He's going to wake up. He's fine. It's okay. He's fine. You don't need to call anybody he's fine." Grantham and Dunaway then placed the baby on the floor and undressed him. Dunaway began to yell in the baby's ears: "Wake up!" When the baby failed to respond, Grantham telephoned her mother, who dialed 911.

Both police and paramedics arrived about five minutes later, at 11:26 a.m. Upon their arrival, the baby was alternating between a state of motionlessness and fits of screaming; they immediately determined that the baby was suffering from frequent seizures. The baby was rushed to Lutheran Hospital. Emergency room doctors quickly determined the baby was critically ill and unconscious. A CAT scan revealed that the baby was bleeding in his brain.

Later that day, the baby was transferred to Children's Hospital. There, doctors diagnosed the baby as having a blood clot "inside the head on the outside surface of [his] brain," a condition also known as a "subdural hematoma."⁴ Doctors concluded that this injury was causing the baby's retinal bleeding and seizures.⁵

The police interviewed Dunaway at both hospitals, where he was awaiting news of the baby's condition with Grantham. At the second interview, Dunaway recounted most of the events above, and demonstrated how he shook the baby earlier that day. When police explained the baby's diagnosis to Dunaway, he recalled a fall off the couch the baby had taken within the previous month and he attributed the injury to that fall. Police arrested Dunaway the same day. On February 26, 1999, Dunaway was charged with one count of Child Abuse Resulting in Serious Bodily Injury⁶ and one count of Child Abuse.⁷

At trial, the prosecution presented evidence to the jury to prove that Dunaway shook the baby and that the shaking caused the baby's subdural hematoma. To this end, it presented an expert who testified that a subdural hematoma can only be caused by a violent blow to the head; she related several extreme accident scenarios in order to provide a foundation for such testimony. The prosecution also presented the testimony of several medical experts, some of whom testified that a subdural hematoma must always be treated immediately.

During its closing, the prosecution invited the jury to find that Dunaway was liable for Child Abuse Resulting in Serious Bodily injury both because he caused serious bodily injury to the child in this case and because he permitted the child to be placed in an injury-threatening situation when he attempted to prevent the child's mother from seeking medical treatment for the child. On July 12, 2000, a jury convicted Dunaway of Child Abuse Resulting in Serious Bodily Injury on a general verdict form. Dunaway was sentenced to fourteen years' imprisonment.

Dunaway appealed his conviction to the court of appeals arguing, among other things, that: (1) the trial court improperly instructed the jury on the charge of Child Abuse Resulting in Serious Bodily Injury because one of the alternative theories of liability in the jury instruction—that Dunaway permitted the child to be unreasonably placed in an

88 P.3d 624

injury-threatening situation—was not supported by sufficient evidence; and (2) the trial court improperly permitted the expert testimony concerning the violent accident scenarios on the grounds that such testimony was overly prejudicial to Dunaway. The court of appeals agreed with Dunaway concerning the jury instruction and reversed his conviction on that basis. Dunaway, slip op. at 5. The court of appeals also held that, on retrial, the trial court should not allow expert testimony suggesting that the force that caused the baby's subdural hematoma was comparable to the force present in other violent accidents. Dunaway, slip op. at 12

We accepted certiorari,⁸ and now hold that the law does not require that sufficient evidence support each alternative theory of liability present in the jury instruction on Child Abuse Resulting in Serious Bodily Injury. Rather, as long as the evidence supports one of the theories of liability beyond a reasonable doubt, Dunaway's trial was not fundamentally unfair. We also determine that the district court did not commit plain error in permitting the prosecution's experts to testify about matters related to the baby's subdural hematoma. Accordingly, we now reverse the court of appeals' decision, and remand the case for reinstatement of Dunaway's conviction.

III. Jury Instruction

Dunaway first argues that the instruction given to the jury on Child Abuse Resulting in Serious Bodily Injury was unconstitutional. He contends that even though the instruction accurately reflected the statute upon which it was based, it was infirm because it contained an alternative theory of liability that was not supported by evidence at trial of guilt beyond a reasonable doubt. Dunaway asserts that under this court's prior decision in James v. People, 727 P.2d 850 (Colo.1986), the erroneous instruction violated his right to due process, warranting a reversal of his conviction. The People, however, argue that both theories of liability presented to the jury were supported by sufficient evidence and thus, that James does not apply in this case. The People alternatively argue that even if one of the theories of liability was not supported by...