People v. Mann

• Decision Date: 01 June 1982
• Docket Number: No. 80SA466,80SA466
• Citation: 646 P.2d 352
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Cheryl MANN, a/k/a Cheryl Adems, Defendant-Appellant.
• Court: Colorado Supreme Court

Page 352

646 P.2d 352

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Cheryl MANN, a/k/a Cheryl Adems, Defendant-Appellant.

No. 80SA466.

Supreme Court of Colorado, En Banc.

June 1, 1982.

As Modified on Denial of Rehearing June 21, 1982.

J. D. MacFarlane, Atty. Gen., Richard F. Hennessey, Deputy Atty. Gen., Mary J. Mullarkey, Sol. Gen., David K. Rees, Asst. Atty. Gen., Denver, for plaintiff-appellee.

J. Gregory Walta, State Public Defender, Terri L. Brake, Deputy State Public Defender, Denver, for defendant-appellant.

DUBOFSKY, Justice.

The defendant Cheryl Mann appeals her conviction in Denver District Court based on jury verdicts on April 11, 1979, of guilty to child abuse and accessory to child abuse. We affirm the judgment of conviction.

On August 7, 1978, the defendant, her son Lawrence, age 4, her daughter Gaynell, age 2, and Melvin Eugene Goodro checked into a motel on West Colfax in Denver. The four of them had been travelling around the country since leaving Scottsbluff, Nebraska in late June, 1978. According to the defendant's tape-recorded statement, Goodro began beating Gaynell about two weeks before they arrived in Denver because efforts to toilet train the child were not entirely successful.

On the evening of August 7, the defendant had been away from the motel, and when she returned, Goodro refused to explain why her daughter's back was swollen. While Gaynell lay on the bed with an ice pack on her back, she wet the bed, and Goodro forced her, as punishment, to run for more than an hour between the bathroom and bedroom of the unit. When she slowed down, he pushed her, and several times she fell. The defendant was in the bedroom when she heard a thump in the bathroom. Gaynell had fallen, apparently hitting her head on the floor. She complained that her head hurt, but when the defendant picked her up, Goodro said that the child must continue to run. Eventually Gaynell collapsed and her heart stopped. Goodro revived her with mouth-to-mouth resuscitation.

The defendant thought they should take her daughter to the hospital, but Goodro said that if they did she would lose her son. ¹ The defendant stayed up all night with the unconscious Gaynell who suffered several seizures. When Goodro woke up the next morning about 9:00 a. m., the defendant insisted that Gaynell be taken to the hospital. Before Goodro would take her, he rehearsed with the defendant a story he made up to explain the little girl's injuries.

About 12:30 p. m. on August 8, 1978, Goodro took the defendant who was carrying a nearly lifeless Gaynell to the emergency entrance of St. Anthony's Hospital. The defendant gave her name as Cheryl Adems and explained to hospital authorities and the police that she had been travelling with a "Tom Hilton" and they were camping in the Colorado mountains. When the child wet the floor of "Hilton's" camper, he beat her and shoved her from the camper. As the defendant and the child ran from the camper, the child fell over a six-foot-embankment, and "Hilton" drove away. The defendant walked with the child until they met an unidentified fisherman who brought them to the hospital.

Hospital authorities told the defendant that her daughter was seriously injured and probably would not live. Late in the afternoon, while arrangements were being made for the defendant to stay at the hospital nurses' residence, she said that she needed fresh air and disappeared. She met Goodro and her son at a nearby store, they returned to the motel, checked out, and left the state. By the time they reached Idaho on August 10, 1978, the defendant wanted to return to Denver to see her daughter. Goodro dropped her off at the police station in Pocatello, Idaho. ² She told the police at Pocatello that she thought she was wanted in Denver, and gave them her real name and the false name she had given the hospital authorities.

Two Denver police officers returned the defendant to Denver on August 13, 1978. The next day, at the defendant's request, the police took her from jail to see Gaynell at the hospital. Gaynell had suffered severe brain injury, severe central nervous system injury, significant blood loss to bruises all over her body, and a fractured collarbone. The doctors who treated her thought she had been beaten all over her body with a blunt object at least twelve hours prior to the time she arrived at the hospital. Some of the bruises and some lesions on her back appeared to be older. Gaynell's breathing was supported by a respirator. She never regained consciousness and suffered brain death on August 18, 1978, after continual deterioration. The doctors who treated her testified that had she been brought to the hospital earlier, they could have prolonged her life but they were not certain that they could have saved it.

The defendant was charged with murder in the first degree (extreme indifference murder), section 18-3-102, C.R.S.1973 (1978 Repl.Vol. 8); child abuse, section 18-6-401, C.R.S.1973 (1978 Repl.Vol. 8); ³ and accessory to child abuse, section 18-8-105, C.R.S.1973 (1978 Repl.Vol. 8). ⁴ The defendant pleaded not guilty by reason of insanity, and her sanity trial to the court was held on February 21, 1979. On February 27, the court found the defendant legally sane. The next day, trial was set for April 2, 1979, and it began as scheduled. On April 11, the jury returned a verdict of not guilty to first degree murder and guilty to child abuse and accessory after the fact. The district court sentenced the defendant to a term of eleven to twelve years for child abuse and a concurrent indeterminate to five-year term for accessory after the fact.

On appeal, the defendant contends that the child abuse statute is unconstitutionally vague; that her punishment under the statute for negligently causing serious bodily injury to a child is more severe than it could have been had she been prosecuted for criminally negligent homicide and therefore, she was denied equal protection under the laws; that the trial court improperly denied her repeated requests for a continuance; that her tape-recorded confession was improperly admitted into evidence; that a police officer's reference to her refusal to take a polygraph examination should have resulted in a mistrial; and that the trial court improperly instructed the jury on the duties of a parent and on complicity. We disagree and affirm the defendant's conviction.

I.

The defendant challenges the constitutionality of the child abuse statute, section 18-6-401, C.R.S.1973 (1978 Repl.Vol. 8), claiming that it is vague and deprives her of equal protection of the laws, U.S.Const. Amend. XIV, Colo.Const. Art. II, § 25. She argues that the statute violates equal protection because it proscribes the same conduct forbidden by the criminally negligent homicide statute, section 18-3-105, C.R.S.1973 (1978 Repl.Vol. 8), but carries a disproportionately greater penalty. In People v. Taggart, Colo., 621 P.2d 1375 (1981), we determined that the legislature was within its discretion in classifying conduct that is abusive to children in terms that distinguish it from the general statutory prohibition against criminally negligent homicide, and that the classification of child abuse as a crime more serious in penalty than the offense of criminally negligent homicide is not arbitrary or unreasonable and does not violate equal protection of the laws. See also People v. Jennings, Colo., 641 P.2d 276 (1982).

The defendant also alleges that the words "negligently" and "may" in the statutory definition of child abuse violate due process because their inclusion renders the statute unconstitutionally vague. However, we held in People v. Taggart, supra, that the term "negligently" does not irreconcilably conflict with the words "tortured" and "cruelly punished" in the same statute, and the definition of child abuse is sufficiently particular to furnish adequate notice to potential wrongdoers of the proscribed conduct and to protect against discriminatory enforcement. See also People v. Jennings, supra. We defined "may" in People v. Hoehl, 193 Colo. 557, 560, 568 P.2d 484, 486 (1977) to mean "a reasonable probability that the child's life or health will be endangered from the situation in which the child is placed," and our judicial construction provides sufficient notice to potential wrongdoers and guarantees against discriminatory enforcement so as to defeat a challenge of unconstitutional vagueness. People v. Taggart, supra at 1383. We see no reason to depart from our holdings in People v. Taggart, supra and People v. Jennings, supra.

The defendant also contends that the child abuse statute is unconstitutionally vague as applied to her because there was no evidence that she took any affirmative action which could be labeled abusive. The defendant argues that she did not understand that her behavior might violate the criminal child abuse statute because Goodro committed the abusive acts. The prosecution's case, however, was that the defendant committed child abuse by inaction or complicity. The defendant's failure to understand that the child abuse law encompasses permitting another to abuse a child does not mean that the statute is unconstitutionally vague. A mistaken belief that conduct does not constitute an offense, as a matter of law, does not relieve one of criminal liability. Section 18-1-504(2)(a), C.R.S.1973 (1978 Repl.Vol. 8). The child abuse statute is constitutional, both on its face and as applied to this defendant.

II.

The defendant next asserts that the trial court's failure to grant her several requests for continuance denied her right to due process. The defendant was arraigned on November 15, 1978, and her plea of not guilty by reason of insanity was tried to the court on February 21, 1979. The trial court found her sane on February 27, and the next day set her trial for April 2, 1979. The prosecution hoped to call the defendant to testify in the separate case...