People v. Weeks

• Decision Date: 18 June 2015
• Docket Number: Court of Appeals No. 12CA0481
• Parties: The PEOPLE of the State of Colorado, Plaintiff–Appellee, v. Mark WEEKS, Defendant–Appellant.
• Court: Colorado Court of Appeals

369 P.3d 699

The PEOPLE of the State of Colorado, Plaintiff–Appellee,

v.Mark WEEKS, Defendant–Appellant.

Court of Appeals No. 12CA0481

Colorado Court of Appeals, Division III.

Announced June 18, 2015

Cynthia H. Coffman, Attorney General, Jay C. Fisher, Assistant Attorney General, Denver, Colorado, for Plaintiff–Appellee

Walta, LLC, Mark G. Walta, Denver, Colorado, for Defendant–Appellant

Opinion by JUDGE DAILEY

¶ 1 Defendant, Mark Weeks, appeals the judgment of conviction entered on jury verdicts finding him guilty of first degree murder (causing the death of a child under the age of twelve by one in position of trust) and child abuse (knowing or reckless conduct, resulting in death). We affirm.

I. Background

¶ 2 Defendant's convictions arose out of the death of his three-year-old daughter, A.M. Defendant lived in a trailer home with his wife, G.W., who was not A.M.'s mother but who had raised A.M. from birth.

¶ 3 One morning, defendant and G.W. discovered that A.M., who was potty-trained but had been regressing for a few weeks, had urinated in her bed. Defendant took A.M. outside naked to wash her off under a cold-water spigot. He sat her down on the floor of the trailer, told her to lie there, and went to a convenience store to buy some cigarettes.

¶ 4 G.W. spanked A.M. while defendant was gone. Varying accounts exist of what happened when he returned. Initially, both G.W. and defendant said that A.M., angry about being put in a time out, had "flopped" backwards and hit her head on the stove. Later, however, G.W. said that defendant had picked A.M. up by her biceps, yelled at her about where she was supposed to go to the bathroom, shook her, and "slammed"¹ her head into the plywood wall of the trailer. It was only after defendant put her down on the floor that A.M. fell backward and hit her head on the stove. (G.W. testified similarly to this latter account at trial, saying then, however, that she did not think defendant pushed A.M. against the wall very hard.)

¶ 5 At some point, A.M. became unresponsive, and defendant and G.W. dressed her and drove her to the hospital. Medical personnel determined that A.M. had suffered a skull fractureand a subdural hematoma. Additionally, her left eye had also been "blown out" of her skull, causing retinal hemorrhaging. Although she was airlifted to Denver for treatment, A.M. was declared brain dead the next day and taken off life support. The autopsy revealed that she also had bruised lungs, a healing rib fracture, and extensive bruising all over her body. The pathologist who conducted the autopsy concluded that A.M.'s injuries were "not consistent with accidental trauma."

¶ 6 A grand jury indicted defendant and G.W. on charges of first degree murder (causing the death of a child under the age of twelve by one in position of trust) and child abuse resulting in death (knowing or reckless conduct). In exchange for her testimony against defendant, however, G.W. was given immunity from prosecution for the allegedly false statements she made before the grand jury and allowed to plead guilty to a single, lesser charge of child abuse resulting in death (criminally negligent conduct), for which she was sentenced to a term of twelve years imprisonment in the custody of the Department of Corrections.

¶ 7 During opening statements, defense counsel said that the evidence would show that G.W. had caused A.M.'s head injuriesor that they were possibly the result of an accidental fall.

¶ 8 On the question of who was responsible for injuring A.M., the prosecution presented, in addition to G.W.'s testimony, evidence that defendant had

• strictly disciplined A.M. and G.W.'s two daughters from a prior relationship, N.B. and K.B., who were eleven and eight years old, respectively, at the time of trial (N.B. and K.B. lived with their father but would visit defendant and G.W.);

• callously mistreated A.M. in the past;²

• previously become verbally and sometimes physically abusive to N.B., K.B., the family cats, and a puppy, after they had urinated or vomited in defendant's home;

• exchanged text messages with G.W. about their frustration with A.M.'s potty training regression as well as about an injury to her eye. At one point, G.W. texted, "I told mom and dad that [A.M.] went to the bathroom and you got up to flush the toilet and we didn't see her and your knee got in her eye." Defendant responded, "Okay. I'm done with her though. She's on her own," which prompted G.W. to remind defendant that A.M. was only three years old;

• attempted to conceal his misconduct in connection with A.M.'s injuries;³ and,

• not displayed any emotion at the hospital,⁴ not wanted to kiss A.M. goodbye before she was airlifted to Denver, and only been concerned about getting his iPhone back from police while signing forms to donate A.M.'s organs.

¶ 9 On whether A.M.'s head injurywas caused by her "flopping" into the stove, the prosecution presented the testimony of several medical experts, all of whom agreed that A.M.'s head injuryrequired great force and was caused by nonaccidental trauma. All but one of the experts agreed her injury could not have been caused by A.M.'s "flopping" into the stove. One expert also said she would diagnose A.M. with physical child abuse and said that A.M.'s bruising was "some of the worst ... [she had] ever seen."

¶ 10 Defendant did not testify. Defense counsel called only one witness, a defense investigator who testified that the trailer's plywood wall, which was only one-eighth of an inch thick, did not have any signs of damage or any of A.M.'s skin or hair on it.

¶ 11 In closing argument, defense counsel largely abandoned his theory that G.W. caused A.M.'s injuries. He asserted, instead, that although the evidence indicated that A.M.'s injuries were not the result of an accident, it was unclear from that evidence who had inflicted the injuries, but it was not defendant.

¶ 12 The jury convicted defendant as charged, and the trial court sentenced him on the first degree murder count to a controlling term of life imprisonment without the possibility of parole in the custody of the Department of Corrections.

II. Evidence of Other Acts

¶ 13 Defendant contends that reversal is required because the trial court erroneously admitted evidence of other acts involving N.B., K.B., and family pets. We disagree.

¶ 14 The trial court allowed the prosecution to introduce evidence that defendant had

• forced N.B. to sit in the living room and angrily yelled for ten minutes at her for vomiting in the middle of the night and waking him up to assist her;

• on multiple occasions put K.B. in time out when she would urinate in her pants, refused to help her change, and told her father that he was "too easy on her" when she had wet the bed or needed to urinate during the night;

• disciplined the family's pet cats when they had urinated in the house by grabbing them by their throats and holding them up against the wall; and

• slammed a puppy's head against a wall to punish it for urinating on the floor, prompting his ex-wife to give the puppy away out of fear for its safety.

The trial court instructed the jury, on each occasion when the particular evidence was admitted and again at the end of trial, that

• the evidence of the incidents with N.B., K.B., and the cats was admitted only for the purposes of showing intent, knowledge, and absence of mistake or accident; and,

• the evidence of the incident with the puppy was admitted only for the purpose of showing an absence of mistake or accident.⁵

¶ 15 CRE 404(b)governs the admission of evidence of other acts. Under that rule, evidence of other acts is inadmissible if its relevance depends only on an inference that the person has a bad character and acted in conformity therewith. People v. Pollard, 2013 COA 31M, ¶ 11, 307 P.3d 1124. Other act evidence is admissible if "[1] it is logically relevant for some reason apart from an inference that the defendant acted in conformity with a character trait, and [2] the probative value of the evidence for that other reason is not substantially outweighed by the other policy considerations of [CRE] 403." People v. Rath, 44 P.3d 1033, 1038 (Colo.2002).⁶

¶ 16 A trial court has considerable discretion in determining whether evidence has logical relevance in tending to prove a material fact and also in balancing its probative value against its potential for unfair prejudice. People v. Orozco, 210 P.3d 472, 477 (Colo.App.2009). On appeal of a trial court's ruling admitting other act evidence, we accord the evidence the maximum probative value attributable to it by a reasonable fact finder and the minimum unfair prejudice to be reasonably expected; we will uphold the trial court's ruling unless it was manifestly arbitrary, unreasonable, or unfair. Id.

¶ 17 Defendant argues, as he did before the trial court, that this evidence was irrelevant to the case other than to show his propensity for anger, and that its unfair prejudice outweighed any probative value.

¶ 18 Initially, we note that use of other act evidence to show intent, knowledge, and absence of mistake or accident qualifies as a "proper" purpose independent of the inference that a defendant acted in conformity with a character trait. See CRE 404(b)(including these as permissible purposes of other act evidence).

¶ 19 The issue, then, is whether the evidence was logically relevant to show intent, knowledge, or absence or mistake or accident, and, if so, whether the trial court was nonetheless compelled to exclude the evidence under CRE 403as unfairly prejudicial.

¶ 20 Evidence is logically relevant if it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." CRE 401.

¶ 21 Contrary to the trial court's determination, the evidence of the incidents involving N.B., K.B., and the cats was not relevant to show defendant's mental state vis-a-vis his acts with A.M.

¶ 22 "[W]here, as here,...