People v. Lybarger, 86CA0119

Citation790 P.2d 855
Decision Date19 October 1989
Docket NumberNo. 86CA0119,86CA0119
PartiesThe PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Jon C. LYBARGER, Defendant-Appellant. . A
CourtCourt of Appeals of Colorado

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

David F. Vela, Colorado State Public Defender, and Michael J. Heher, Deputy State Public Defender, Denver, for defendant-appellant.

Hamilton, Myer, Swanson, Faatz & Clark, Dwight A. Hamilton and Jan E. Montgomery, Denver, for amicus curiae The Church of Christ, Scientist.

Opinion by Judge KELLY.

The defendant, Jon Lybarger, appeals from the judgment entered on a jury verdict finding him guilty of child abuse resulting in death. We affirm.

On March 15, 1982, the defendant's five-week-old daughter died of severe pneumonia. She had been sick for some time, but the defendant, in accordance with his religious beliefs, had not sought medical care for her.

He was charged by information with violating Colo.Sess.Laws 1980, ch. 93, § 18-6-401(1)(b), at 544 (conduct that "may endanger" a child's life or health). Prior to trial, the defendant informed the prosecution and the court that he intended to assert the affirmative defense of treatment through spiritual means as provided in § 18-6-401(6), C.R.S. (1988 Cum.Supp.) and § 19-1-114, C.R.S. (1986 Repl.Vol. 8B) (now codified as § 19-3-103, C.R.S. (1988 Cum.Supp.)).

The trial court, sua sponte, held that the spiritual-treatment affirmative defense violated the establishment clauses of the First Amendment and Colo. Const. art. II, § 4. Consequently, it refused to admit any evidence of the defendant's religious practices as a defense to the charge. The defendant was ultimately found guilty by a jury.

The Supreme Court reversed the conviction because: "[t]he court's ruling, in addition to resolving a constitutional question not raised by any party to the litigation, deprived the defendant of any opportunity to present evidence at trial that might have entitled him to an appropriate jury instruction on the statutory defense created by section 18-6-401(6)...." People v. Lybarger, 700 P.2d 910 (Colo.1985). The case was remanded for a new trial.

At the close of the second trial, the defendant tendered an instruction that omitted part of the statutory language of the spiritual-treatment affirmative defense, which language he argued was unconstitutional. The instruction was refused because the trial court found that the language complained of was not severable from the remainder of the defense. The trial court also refused the defendant's tendered instructions defining the phrases "recognized church or religious denomination" and "duly accredited practitioner" because it considered them misleading.

The jury was instructed on the spiritual-treatment affirmative defense in the language of the statute. The defendant was found guilty of the offense set out in Colo.Sess.Laws 1980, ch. 93, § 18-6-401(1)(a), at 544 (conduct that "endangers" a child's life or health). He was sentenced to six years' probation, with eight hours per week of public service.

I.

The defendant contends that he was tried under an information that was missing an essential element of the charge because it failed to allege that he had a duty to act and to specify the source of such a duty. Thus, he argues, the trial court was without jurisdiction to try him.

We rejected this argument in People v. Arevalo, 725 P.2d 41 (Colo.App.1986) saying: "Section 18-6-401 ... depends on no source of duty." The defendant urges us to depart from the Arevalo ruling because it is inconsistent with People v. Mann, 646 P.2d 352 (Colo.1982). We disagree that there is an inconsistency.

In People v. Mann, supra, the Supreme Court approved an instruction outlining the parental duty to provide medical care for one's children because the instruction set out a standard of care against which the jury could judge whether defendant was criminally negligent under § 18-6-401, C.R.S. (1986 Repl.Vol. 8B). Contrary to the defendant's argument, this parental standard of care is not a statutorily-imposed duty upon which § 18-6-401 depends. Rather, the standard of care enlightens the jury concerning the question whether the defendant had the requisite culpable mental state.

Section 18-6-401 derives its force not from a statutory duty but from the obligation of every person to refrain from conduct which endangers a child's life or health. See People v. Arevalo, supra. Thus, an information pursuant to § 18-6-401 need not allege a duty to act on the part of the accused.

Ordinarily, an information framed in the words of the statute is sufficient. People v. Hoehl, 193 Colo. 557, 568 P.2d 484 (1977). An information is sufficient if it advises the accused of the charge against him so that he can prepare an adequate defense. People v. Chavez, 730 P.2d 321 (Colo.1986).

Here, the amended information alleged that the defendant "did unlawfully, feloniously, recklessly and through criminal negligence, and without justifiable excuse, cause and permit JESSICA ANN LYBARGER, a child age five weeks, to be placed in a situation that endangered the said child's life and health, and the death of JESSICA ANN LYBARGER resulted...."

This is in substantially the same words as § 18-6-401(1)(a). The defendant does not contend, nor would the record support a contention, that he was unable to prepare a defense against the charge of child abuse. Under these circumstances, the information was not jurisdictionally deficient.

II.

The defendant argues that the trial court made two errors in the jury selection process which deprived him of his right to a fair and impartial jury. We perceive no error.

A.

First, the defendant contends that the trial court erred by denying his challenge for cause to a potential juror. We do not agree.

Absent an abuse of discretion, a trial court's denial of a challenge for cause will not be reversed. People v. Abbott, 690 P.2d 1263 (Colo.1984). If the trial court is satisfied that the juror will render a fair and impartial verdict based on the evidence and the court's instructions, then the juror need not be excused. People v. Drake, 748 P.2d 1237 (Colo.1988).

The potential juror in question here said that she had read about this case at the time the child died and that she might have formed an opinion at that time that a religion which caused a child's death was "bad." However, in response to questioning by the court, she said that she would listen to the evidence presented and apply the court's instructions on the law in reaching a verdict.

In view of the latitude given the trial court in determining credibility, see People v. Drake, supra, its decision that this juror did not express an inability to be fair and impartial was not an abuse of discretion.

B.

The defendant next asserts that the trial court improperly restricted defense counsel's voir dire of the prospective jurors. Again, we disagree.

The propriety of questions during voir dire is within the discretion of the trial court, and its ruling will not be disturbed absent an abuse of that discretion. People v. Shipman, 747 P.2d 1 (Colo.App.1987). Voir dire may not be used to instruct the jury regarding the law or the defendant's theory of the case. People v. Shipman, supra.

The defendant contends that he was prohibited from questioning potential jurors about any religious beliefs which could have affected their attitudes towards his affirmative defense. The trial court disallowed one question because it went to the defendant's theory of the case. However, the record is replete with other questions by defense counsel in this area. We see no prejudicial error in the voir dire.

III.

The defendant argues that the trial court erroneously permitted the prosecution to cross-examine him regarding his religious beliefs. This argument is without merit.

The defendant relies on § 13-90-110, C.R.S. (1987 Repl.Vol. 6A), which prohibits questions regarding the religious opinions of a witness, and CRE 610, which disallows evidence of religious beliefs for the purpose of impairing or enhancing the credibility of a witness.

Both § 13-90-110 and CRE 610 evidence a policy that a witness' competency shall not depend on that person's religious beliefs. However, if testimony is probative of something other than the veracity of the witness, that evidence is not inadmissible simply because it involves religious beliefs. Conrad v. City & County of Denver, 656 P.2d 662 (Colo.1982).

The questions complained of by the defendant sought information relevant to the affirmative defense asserted by him. The trial court instructed the jury that the defendant's answers could not be considered to determine his credibility. Under these circumstances, the questions were not improper.

IV.

The defendant contends that he was denied due process because of errors in several jury instructions. We find nothing prejudicial in any of the instructions cited by the defendant.

A.

The defendant challenges the affirmative defense instruction arguing that it incorrectly set forth the affirmative defense of spiritual treatment. We do not agree.

The affirmative defense is provided for in § 18-6-401(6) which reads:

"No child who in good faith is under treatment described in section 19-3-103, C.R.S., 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."

Section 19-3-103 provides:

"[N]o 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...

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4 cases
  • People v. Wilson
    • United States
    • Court of Appeals of Colorado
    • May 23, 2013
    ...dire to prevent an attorney from “instruct[ing] the jury regarding the law or the defendant's theory of the case.” People v. Lybarger, 790 P.2d 855, 859 (Colo.App.1989)(citing People v. Shipman, 747 P.2d 1, 3 (Colo.App.1987)), rev'd on other grounds,807 P.2d 570 (Colo.1991); see alsoPeople ......
  • Lybarger v. People
    • United States
    • Supreme Court of Colorado
    • March 18, 1991
    ...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 reve......
  • People v. Tally
    • United States
    • Court of Appeals of Colorado
    • April 29, 1999
    ...would have been improper because it would have directed the jury to accept, as fact, part of a witness' testimony. See People v. Lybarger, 790 P.2d 855 (Colo.App.1989), rev'd on other grounds, 807 P.2d 570 Here, the jury had been presented with evidence relating to defendant's medication an......
  • People v. Salazar, 94CA0447
    • United States
    • Court of Appeals of Colorado
    • April 4, 1996
    ...statutes directed towards crimes against children both serve the General Assembly's intent of protecting children. See People v. Lybarger, 790 P.2d 855 (Colo.App.1989), rev'd on other grounds, 807 P.2d 570 (Colo.1991)(fact that criminal code provides for criminal sanctions does not negate l......
1 books & journal articles
  • Witness Competence and Credibility: the Relevance of Religious Beliefs
    • United States
    • Colorado Bar Association Colorado Lawyer No. 26-6, June 1997
    • Invalid date
    ...Estorga, 612 P.2d 520, 524 (Colo. 1980). 9. See also CRS § 13-90-110. 10. 656 P.2d 662 (Colo. 1982, as modified 1983). 11. Id. 12. Id. 13. 790 P.2d 855 (Colo.App. 1989), cert. granted 14. Id. at 859. 15. Id. (citing with approval the trial court's instruction to the jury "that the defendant......

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