People v. Weinreich

• Decision Date: 12 September 2005
• Docket Number: No. 04SC436.,04SC436.
• Citation: 119 P.3d 1073
• Parties: Petitioner: The PEOPLE of the State of Colorado, v. Respondent: Peter Karl WEINREICH.
• Court: Colorado Supreme Court

119 P.3d 1073

Petitioner: The PEOPLE of the State of Colorado, v. Respondent: Peter Karl WEINREICH.

No. 04SC436.

Supreme Court of Colorado.

En Banc.

September 12, 2005.

John W. Suthers, Attorney General, Cheryl Hone, Assistant Attorney General, Appellate Division, Criminal Justice Section, Denver, for Petitioner.

Robert T. Fishman, Denver, for Respondent.

Justice COATS dissents, and Justice KOURLIS and Justice RICE join in the dissent.

HOBBS, Justice.

We granted certiorari in this case to review the court of appeals' decision in People v. Weinreich, 98 P.3d 920 (Colo.App.2004).¹ This case involves a traffic accident that occurred when defendant Weinreich was driving with his twin daughters in his lap and attempted to pass a vehicle in front of him. One of the children, Jade, died in the accident; the other, Blake, suffered injuries.

The jury convicted Weinreich of multiple crimes, including reckless child abuse resulting in death under section 18-6-401(1)(a) and (7)(a), C.R.S. (2004). However, the trial court did not deliver to the jury an instruction that conformed to the statute in existence on the day of the accident. Instead, the trial court instructed the jury using an obsolete version of a jury instruction based on statutory language which we expressly disapproved in People v. Hoehl, 193 Colo. 557, 560, 568 P.2d 484, 486 (1977). We hold that the trial court committed plain and reversible error by failing to give an instruction that substantially conformed to the existing reckless child abuse resulting in death statute under which the prosecution charged Weinreich.²

I.

Weinreich was driving his Subaru on a two-lane undivided road with his two six-year old twin daughters, Jade and Blake, in his lap unrestrained. An SUV hauling a trailer was driving slowly in front of him. Weinreich attempted to pass the SUV on the left, and at the same time, the SUV attempted to turn left. Weinreich's car made contact with the SUV and then rolled numerous times. Jade was killed; Blake and Weinreich suffered injuries.

A test of Weinreich's blood alcohol level approximately an hour and a half after the accident measured .086. Police found an empty beer can and an empty single-serving vodka bottle in the back seat of the car. Witnesses testified that Weinreich had been drinking earlier in the day.

The prosecution charged Weinreich with reckless child abuse resulting in death,³ vehicular homicide — alcohol,⁴ vehicular homicide — reckless,⁵ manslaughter,⁶ child abuse resulting in injury,⁷ driving under the influence of alcohol,⁸ unlawfully overtaking on the left,⁹ and driving with excessive blood alcohol content.¹⁰

The jury found Weinreich guilty of reckless child abuse resulting in death as proscribed by section 18-6-401(1)(a) and (7)(a)(I), C.R.S. (2004). The jury also found him guilty of child abuse resulting in injury and unlawfully overtaking on the left. The jury acquitted Weinreich of the remaining charges, but found him guilty of the lesser-included offenses of careless driving resulting in death,¹¹ criminally negligent homicide,¹² and driving while ability impaired.¹³

At trial, Weinreich did not dispute that both children were riding unrestrained on his lap when the accident occurred and that he had been drinking that day. His defense was that his level of intoxication did not contribute to the accident and that the driver of the SUV caused the accident by failing to signal the left hand turn. The prosecution put on proof that the SUV's left hand turn signal was operable and visibly flashing before the collision. The parties also disputed the mechanics of the accident, specifically to what extent the impact, the speed of the car, or Weinreich's reactions caused the car to roll.

Another issue at trial was whether Jade's death would have been avoided had she been lawfully restrained in the back seat. Multiple witnesses testified that the back seat was significantly less damaged than the front seat and that a passenger restrained in the backseat would have been more likely to survive the accident. Weinreich argued that he did not act unreasonably in allowing his children to ride on his lap unrestrained.

The information charged that Weinreich did "cause an injury to the life and health of Jade A. Weinreich . . . resulting in the death of Jade A. Weinreich." This is one of the alternative ways of committing child abuse resulting in death, as set forth in section 18-6-401(1)(a) and (7)(a)(I), C.R.S. (2004). However, the trial court instructed the jury that Weinreich could be convicted of the section 18-6-401(1)(a) offense if he had "recklessly permitted a child under the age of sixteen to be unreasonably placed in a situation that may have endangered the child's life or health, which resulted in the death of the child." Weinreich, 98 P.3d at 922 (emphasis added). The trial court gave this instruction even though we had expressly disapproved of similar language in Hoehl. Following Hoehl, the General Assembly twice reformulated the offense, resulting in the current statute. See 1985 Colo. Sess. Laws, ch. 154, 672. Although a jury instruction conforming to the present statute was readily available at the time of Weinreich's trial, the trial court did not use it. See CJI Crim. 22:04 (Pocket Part 1993). Weinreich did not object at trial to the erroneous instruction.

The trial court sentenced Weinreich to twenty-six years in prison for the reckless child abuse resulting in death conviction and imposed concurrent sentences for the other convictions, the longest being three years.

Weinreich appealed his conviction for reckless child abuse resulting in death based on the erroneous instruction. We uphold the judgment of the court of appeals reversing this conviction.

II.

We hold that the trial court committed plain and reversible error by failing to give an instruction that substantially conformed to the existing reckless child abuse resulting in death statute under which the prosecution charged Weinreich.

A. Instructional Error

A trial court has a duty to instruct the jury correctly on the law applicable to the case. Jordan v. Bogner, 844 P.2d 664, 667 (Colo.1993). A jury instruction should substantially track the language of the statute describing the crime; a material deviation from the statute can result in reversible plain error, depending on the facts of the case. See Auman v. People, 109 P.3d 647, 661, 663-64, 671 (Colo.2005)(reversing conviction for felony murder on the basis that the instruction given omitted the mens rea element of theft for the felony-murder predicate offense of burglary).

The prosecution charged Weinreich under section 18-6-401(1)(a), C.R.S. (2004), which states that:

A person commits child abuse if such person causes an injury to a child's life or health, or permits a child to be unreasonably placed in a situation that poses a threat of injury to the child's life or health, or engages in a continued pattern of conduct that results in malnourishment, lack of proper medical care, cruel punishment, mistreatment, or an accumulation of injuries that ultimately results in the death of a child or serious bodily injury to a child.

When death or injury of the child results, section 18-6-401(7)(a)(I) provides that the offense is a class 2 felony.

This law sets forth a single offense of child abuse that can be committed in various ways. See People v. Abiodun, 111 P.3d 462, 471 (Colo.2005)(finding that section 18-18-405, C.R.S. (2004), dealing with controlled substance possession and distribution, defines a single offense that can be committed in various ways).

The information in this case charged Weinreich with the first statutorily identified way of committing reckless child abuse resulting in death:

On or about July 29, 2001, [defendant] did unlawfully, feloniously, knowingly, and recklessly cause an injury to the life and health of Jade A. Weinreich, a child less than sixteen years of age, resulting in the death of Jade A. Weinreich; in violation of 18-6-401(1) and (7)(a)(I).

Weinreich, 98 P.3d at 922 (emphasis added.) But, utilizing an obsolete jury instruction, the trial court informed the jury that it could convict Weinreich of reckless child abuse resulting in death if Weinreich had "unreasonably placed [his daughter] in a situation that may have endangered" her life or health:

The elements of the crime of Child Abuse Resulting in Death — Recklessly are:

1. That the defendant,

2. in the State of Colorado, at or about the date and place charged,

3. recklessly,

4. permitted a child under the age of sixteen to be unreasonably placed in a situation that may have endangered the child's life or health

5. which resulted in the death of the child.

Id. (emphasis added). The operative phrase of this instruction, "may have endangered," was contained in a number of no-longer-effective versions of the child abuse statute. From 1971 to 1980, the statute read:

(1) A person commits child abuse if he knowingly, intentionally, or negligently, and without justifiable excuse, causes or permits a child to be:

(a) Placed in a situation that may endanger its life or health; or

(b) Exposed to the inclemency of the weather; or

(c) Abandoned, tortured, cruelly confined or cruelly punished; or

(d) Deprived of necessary food, clothing, or shelter.

1971 Colo. Sess. Laws, ch. 121, 448 (emphasis added).

In Hoehl, to save the statute from being unconstitutionally vague, we construed the language "may endanger" to mean "there is a reasonable probability that the child's life or health will be endangered," and we required that the court give the jury an instruction using this phraseology. 193 Colo. at 560, 568 P.2d at 486 (emphasis added).

Apparently taking the problems identified by Hoehl into account, the General Assembly in 1980 repealed and reenacted the child abuse statute. It added an additional "endanger" provision alongside the "may endanger" provision, and added complex penalty...