People v. Thompson , 1985 Colo. App. LEXIS 1395 ( 1985 )

TURSI, Judge.

Stefan Charles Thompson was convicted of class 2 felony child abuse in the death of Sequetha Minick. He appeals the conviction on the ground that the definition of “knowingly” presented to the jury was erroneous as a matter of law. We reverse and remand for new trial.

On November 8, 1982, Sequetha Minick, age four months, died from a loss of blood due to internal bleeding precipitated by a sudden, sharp, and violent blow to her abdomen. Her injury occurred while she was in Thompson’s care. Thompson testified that he lost his balance when he reached to the back of a closet to retrieve some marijuana and accidentally stepped on Seque-tha, who was lying on the floor.

Thompson did not disclose the cause of the injury to anyone. He contends that his silence was motivated by a desire to inform Sequetha’s mother of the incident first. Sequetha’s mother took her to the hospital within two hours, but the doctors did not attempt surgery for another three hours. The jury found defendant guilty of class 2 felony child abuse but acquitted him of first degree murder and the lesser included offenses of second degree murder, manslaughter, and criminally negligent homicide.

I.

For a child abuse to constitute a class 2 felony, there exists the requirement that the actor knowingly expose a child to a danger which causes the child’s death. See § 18-6-401(7)(a)(I), C.R.S. (1984 Cum. Supp.). Thompson contends that the jury instruction on “knowingly” should have been: “A person acts knowingly ... with respect to a result of his conduct when he is aware that his conduct is practically certain to cause the result.” See § 18-1-501(6), C.R.S. We agree.

The trial court gave the following definition to the jury: “A person acts ‘knowingly’ when the defendant is generally aware of the abusive nature of his conduct with respect to the child.” This instruction was derived from language in People v. Noble, 635 P.2d 203 (Colo.1981), which was based on the Colorado child abuse statute prior to its amendment in 1980. At that time, the requisite mental states for child abuse were, in the alternative, “knowingly, intentionally, or negligently,” and the seriousness of the offense was not premised upon the defendant’s mental state. See § 18-6-401(1), C.R.S. (1973). Noble held that knowledge of the result of a defendant’s conduct was not a necessary element of felony child abuse. The court reasoned:

“[i]f the legislature [had] intended criminal responsibility to hinge on the actor’s awareness that his conduct is practically certain to cause the proscribed result, it hardly would have established as an alternative to the elements of ‘knowingly’ the culpable mental state of ‘negligently.’ A person acts ‘negligently’ when he fails to perceive a substantial and unjustifiable risk that a result will occur or that a circumstance exists.”

The legislative history of the 1980 amendment discloses that the State Public Defender, in an apparent reaction to the Noble trial, requested that the General Assembly reconsider § 18-6-401(7)(a).

At the time applicable to this case, the section read as follows:

“(I) When a person acts knowingly, except as to paragraph (b) of subsection (1) of this section, and the child abuse results in death to the child, it is a class 2 felony.

(II) When a person acts recklessly or with criminal negligence and the child abuse results in death to the child, it is a class 3 felony.

(III) When a person acts knowingly, except as to paragraph (b) of subsection (1) of this section, and the child abuse results in serious bodily injury to the child, it is a class 3 felony.

(IV) When a person acts recklessly or with criminal negligence and the child abuse results in serious bodily injury to the child, it is a class 4 felony.

(V) When a person acts knowingly or recklessly, except as to paragraph (b) of subsection (1) of this section, and the child abuse results in any injury other than serious bodily injury to the child, it is a class 1 misdemeanor.

(VI) When a person acts with criminal negligence and the child abuse results in any injury other than serious bodily injury to the child, it is a class 2 misdemean- or.” Section 18-6-401(7)(a), C.R.S. (1984 Cum.Supp.).

Hence, the seriousness of the offense has been delineated to provide for a range from a class 2 felony to a class 2 misdemeanor depending on the severity of the injury to the child and the particular mental state of the abuser. Also, the culpable mental states required by the amended child abuse statute are now “knowingly, recklessly, or through criminal negligence.” See § 18-6-401(1), C.R.S. (1984 Cum.Supp.).

Class 2 felony child abuse can only be committed with the mental state knowingly. Section 18-6-401(7)(a)(I). Accordingly, a definition of knowingly based on Noble is improper under the amended child abuse statute because the mental state of negligence is no longer an alternative to knowingly in the class 2 felony. Instead, when a person acts with recklessness or criminal negligence which results in the death of an abused child, the offense is class 3 felony child abuse. Section 18-6-401(7)(a)(II).

The essential elements of class 2 felony child abuse are that the abuser commit one of the acts of abuse listed in § 18-6-401(1) (except for paragraph (b)) and that the abuse causes the death of the child. The mental state of knowingly applies to each of these elements. See § 18-1-503(4), C.R.S. (1978 Repl.Yol. 8) (a specified mental state applies to every element of the offense). Thus, the abuser must be both aware of the nature of his abusive conduct and that his conduct is practically certain to cause the child’s death.

Therefore, the jury instruction as given is infirm because it does not require the jury to find that defendant acted knowingly with respect to the child’s death. Accordingly, the conviction for class 2 felony child abuse must be reversed.

II.

The People contend that even if the definition of “knowingly” was in error, a new trial is not required because, by finding Thompson guilty of class 2 child abuse, the jury impliedly found him guilty of the lesser included offense of class 3 child abuse which requires the lesser culpable mental state of criminal negligence. We disagree.

Class 3 felony child abuse committed with criminal negligence requires a finding that the accused, through a gross deviation from the standard of care that a reasonable person would exercise, failed to perceive a substantial and unjustifiable risk that the child’s death will occur. See § 18-1-501(3), C.R.S. (1978 Repl.Vol. 8) (definition of criminal negligence); § 18-6-401(7)(a)(II), C.R.S. (1984 Cum.Supp.). This definition of criminal negligence also applies to criminally negligent homicide. See People v. Taggart, 621 P.2d 1375 (Colo.1981). Although the trial court gave the jury the correct definition of criminal negligence for both offenses, we cannot assume that the jury believed that defendant had this mental state for child abuse when it specifically found defendant not guilty of criminally negligent homicide.

Accordingly, defendant’s conviction is reversed and the cause is remanded for new trial.

KELLY, J., concurs. METZGER, J., dissents.