People v. Lybarger, s. 83SA433

• Decision Date: 20 May 1985
• Docket Number: 84SA236,Nos. 83SA433,s. 83SA433
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Jon Courtland LYBARGER, Defendant-Appellant.
• Court: Colorado Supreme Court

Page 910

700 P.2d 910

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Jon Courtland LYBARGER, Defendant-Appellant.

Nos. 83SA433, 84SA236.

Supreme Court of Colorado,

En Banc.

May 20, 1985.

Rehearings Denied June 10, 1985

and June 24, 1985.

Duane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty. Gen., Richard H. Forman, Sol. Gen., John Daniel Dailey, First Asst. Atty. Gen., Denver, for plaintiff-appellee.

David F. Vela, Colo. State Public Defender, David Wymore, Chief Deputy Public Defender, Michael J. Heher, Deputy Public Defender, Denver, for defendant-appellant.

Dwight A. Hamilton, Jan E. Montgomery, Denver, for amicus curiae, First Church of Christ, Scientist, in Boston, Mass.

QUINN, Justice.

In this appeal the defendant, Jon Courtland Lybarger, challenges his conviction of felony child abuse resulting in death. ¹ Among his claims are the following, which we address in this opinion: that the trial court erred in declaring on its own motion that the affirmative defense of treatment through spiritual means, as provided in sections 18-6-401(6) and 19-1-114, 8 C.R.S. (1978), abridged the constitutional prohibition against legislation respecting the establishment of religion, U.S. Const. amend. I; Colo. Const. art. II, § 4; that the trial court erred in deleting the phrase "without justifiable excuse" from the elemental jury instruction on child abuse resulting in death; and that the evidence presented at trial was insufficient to support the conviction. Although we are satisfied that the elemental instruction on child abuse was not erroneous under the evidentiary record in this case and that the evidence was sufficient to withstand the defendant's motion for a judgment of acquittal, we nonetheless conclude that the trial court committed reversible error in striking on its own motion the statutory affirmative defense of treatment through spiritual means. We accordingly reverse the defendant's conviction and remand for a new trial.

I.

The defendant was charged in the District Court of Larimer County with child abuse resulting in death, ² § 18-6-401(1)(a) and 7(a)(II), 8 C.R.S. (1984 Supp.), in that between March 13 and 15, 1982, he recklessly or with criminal negligence, and without justifiable excuse, placed his child, Jessica Ann Lybarger, in a situation that endangered the child's life or health and the death of the child resulted. ³ The defendant, prior to trial, informed the prosecution and the court that he intended to rely on the statutory affirmative defense of treatment through spiritual means as recognized by sections 18-6-401(6) and 19-1-114, 8 C.R.S. (1978). The former statute, § 18-6-401(6), which is part of the statutory proscription of child abuse, states as follows:

No child who in good faith is under treatment described in section 19-1-114 C.R.S.1973, shall, for that reason alone, be considered to be abused or endangered as to his health within the purview of this section. This subsection (6) shall be an affirmative defense.

The latter section, § 19-1-114, is found in the Colorado Children's Code and provides as follows:

Notwithstanding any other provision of this title, no child who in good faith is under treatment solely by spiritual means through prayer in accordance with the tenets and practices of a recognized church or religious denomination by a duly accredited practitioner thereof shall, for that reason alone, be considered to have been neglected within the purview of this title.

Although relying on these statutes as a defense to the charge, the defendant nevertheless sought a pretrial ruling that the language of section 19-1-114 limiting the prayer defense to those forms of spiritual treatment that accorded with "the tenets and practices of a recognized church or religious denomination" and that were performed by "a duly accredited practitioner thereof," if applied so as to deprive the defendant of the right to rely on treatment through prayer, would violate his First Amendment right to freely practice his religion. ⁴ The prosecution, on the other hand, simply contended that the statutory affirmative defense was not applicable to the facts underlying the charge.

The court, immediately prior to the commencement of trial to a jury, issued a written ruling with respect to the statutory prayer defense. After initially noting that the statutory restriction of the affirmative defense to duly accredited practitioners of a recognized church or religious denomination was a violation of equal protection of the laws--a claim not specifically raised by the defendant--the court stated that it need not "delve into the evaluation of that particular issue" because, in its view, there was a more serious constitutional flaw in the statute. The court then proceeded on its own motion to address what it perceived as the critical issue before it. Formulating the question as whether the defendant may constitutionally raise his religious beliefs and practices as an affirmative defense to the charge of child abuse resulting in death, the court reasoned as follows:

The real and practical effect of [sections 18-6-401(6) and 19-1-114] is to recognize and give credence to a particular religion and its practice (i.e., that of healing by prayer alone ). The First Amendment ... extends not only to establishing laws that may prohibit the conduct of a person or group but as well as to granting of [a] privilege or exemption from the application of its laws to a group for religious reasons.

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It is the duty of a parent or guardian to seek all reasonable means of treatment, and one cannot, as such, exclude medical care or treatment when that need or choice is warranted by the circumstances.... One cannot hide behind religious practices as a defense to one's alleged "child abuse resulting in death" as defined in [section 18-6-401(1) ]. (emphasis in original).

The court held that the statutory affirmative defense created by sections 18-6-401(6) and 19-1-114 directly violated the constitutional prohibition against the enactment of any law respecting the establishment of religion. U.S. Const. amend. I; Colo. Const. art. II, § 4. ⁵ In keeping with its holding, the court ruled that any evidence relating to the defendant's religious practices would not be admissible as a defense to the charge but would be admissible if otherwise relevant to other issues in the case, such as the defendant's intent in not seeking medical treatment and the daughter's need for medical treatment.

The evidence presented at trial was conflicting in several particulars, but basically established the following circumstances surrounding the death of the defendant's five week old daughter, Jessica. The defendant had no formal theological training, but served as the minister of a small fundamentalist church which met in the Estes Park area. He lived with his wife and nine children in a one-room cabin near Estes Park. During the three weeks preceding Jessica's death, nearly every member of the defendant's family experienced cold symptoms. Shortly before the weekend of March 13 and 14, 1982, the defendant became aware that Jessica was somewhat congested and was experiencing periodic coughing spells.

On Saturday, March 13, the defendant, after observing that Jessica was coughing more frequently than previously, called Carl Waldeck, an elder in the church. He asked Waldeck to pray for his child and to contact Sammie Ferdinandtsen, another church elder. Waldeck complied with the defendant's request. Both Waldeck and Ferdinandtsen, thinking that perhaps the child had been hospitalized, called the Estes Park Hospital. After learning the child had not been hospitalized, Ferdinandtsen then went to the home of Robert and Jane McGillicuddy, who lived across the street from the Estes Park Hospital. After a brief visit there, Ferdinandtsen and Robert McGillicuddy went to the defendant's home to check on the baby. Ferdinandtsen noted that Jessica had some congestion and appeared to have a cold. In McGillicuddy's view, the child not only appeared congested but was also ashen in color.

The defendant, McGillicuddy, and Ferdinandtsen prayed for the health of the child on this occasion and annointed her with oil. On the evening of March 13, after receiving an anonymous call that the defendant's child was ill, two officers of the Larimer County Sheriff's Department went to the defendant's home to check on the baby. According to the officers, the baby appeared to have a cold but her condition was not such as to warrant her removal from the home in order to obtain medical treatment. One of the officers, speaking to Ferdinandtsen outside the defendant's home, asked whether the defendant would permit the baby to be medically treated. Ferdinandtsen went inside the home and put the question to the defendant. The defendant replied, "I want the best help for my baby and God is the best help for my baby."

The next day, Sunday, the baby's condition worsened. She experienced a serious coughing spell in the afternoon and, according to the defendant, her breathing became somewhat shallow and she raised some phlegm. Because the defendant and his wife were extremely tired from the family's bout with cold symptoms during the preceding weeks, they decided to bring Jessica to the home of the McGillicuddys. The defendant believed that the baby might have an easier time breathing in that home, since the McGillicuddys did not have a wood burning stove as did the Lybargers. According to Mrs. McGillicuddy, when she viewed the baby on Sunday afternoon, Jessica was pale, "looked sick," had blue fingernails, and was just "laying there." Mr. McGillicuddy described the baby on this occasion as "[v]ery sick" and "having trouble breathing." When Mrs. McGillicuddy suggested to her husband that the child should be brought to the hospital, her husband passed on the suggestion to the defendant. The defendant replied: "We can't do that. This has been our...