22CA0296 Peo v Bergeron 07-25-2024
COLORADO COURT OF APPEALS
Court of Appeals No. 22CA0296
El Paso County District Court No. 20CR1555
Honorable Marcus S. Henson, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Susan Trahan Bergeron,
Defendant-Appellant.
JUDGMENT AFFIRMED
Division V
Opinion by JUDGE BROWN
Freyre, J., concurs
Johnson, J., specially concurs
NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced July 25, 2024
Philip J. Weiser, Attorney General, Allison S. Block, Assistant Attorney General
Fellow, Denver, Colorado, for Plaintiff-Appellee
Victor T. Owens, Alternate Defense Counsel, Parker, Colorado, for Defendant-
Appellant
1
¶ 1 Defendant, Susan Trahan Bergeron, appeals the judgment of
conviction entered after a jury found her guilty of child abuse
resulting in serious bodily injury and child abuse resulting in
injury. We affirm.
I. Background
¶ 2 At trial, the prosecution presented evidence from which the
jury could find the following facts.
¶ 3 Bergeron provided daycare for N.P. from June or July 2019
until October 2019, often for more than forty hours per week.
During this timeframe, N.P. was between eight and thirteen months
old.
¶ 4 On October 9, Bergeron injured N.P.’s mouth. At trial,
Bergeron testified that she was feeding N.P. when N.P. turned her
head, and Bergeron saw blood.
¶ 5 The next day, N.P. became unresponsive while in Bergeron’s
care. According to Bergeron, after N.P.’s mother (mother) dropped
N.P. off, Bergeron took N.P. to the basement, placed her in a
portable playpen, and went upstairs for coffee and a restroom
break. Bergeron said that when she returned to the basement, she
picked N.P. up and bounced her to stimulate her. N.P. nodded off
2
and Bergeron texted mother asking whether N.P. slept hard. When
mother returned to the house, N.P. was lying limp in the playpen.
¶ 6 N.P. was transported to Children’s Hospital, where she
presented with seizures and an altered mental state. N.P. was
evaluated by Dr. Nicole Wallace, a pediatrician who specializes in
child abuse and neglect. During a physical examination of N.P., Dr.
Wallace noted a torn frenulum, the piece of tissue that connects the
lip to the gum. An initial CT scan and a later MRI showed a
subdural hemorrhage on both sides of N.P.’s brain. And a pediatric
ophthalmologist found significant retinal hemorrhages in N.P.’s left
eye.
¶ 7 Dr. Wallace testified that N.P.’s blood work did not show a
bleeding, metabolic, or genetic disorder that could have caused the
subdural hemorrhage. Mother told Dr. Wallace that N.P. had been
active and eating early that morning. Based on N.P.’s medical
history, scans, and blood work, Dr. Wallace formed the medical
opinion that N.P.’s injuries were consistent with abusive or
nonaccidental head trauma. Dr. Wallace explained that, although
she could not say “for certain” whether N.P. had a previous or older
injury, given the severity of the injuries, N.P. “would have developed
3
those symptoms pretty much immediately. There would not have
been a long delay of hours to days . . . .”
¶ 8 The prosecution charged Bergeron with child abuse resulting
in serious bodily injury, a class 3 felony, in relation to the subdural
hemorrhage, and child abuse resulting in injury, a class 1
misdemeanor, in relation to the torn frenulum. After a three-day
trial, a jury found Bergeron guilty as charged. The district court
sentenced Bergeron to ten years in the custody of the Department
of Corrections for the felony child abuse count and a concurrent six
months in jail for the misdemeanor child abuse count.
II. Expert Witness
¶ 9 Bergeron contends that the district court erred by admitting
Dr. Wallace’s expert testimony regarding abusive or nonaccidental
head trauma because it was unreliable and unfairly prejudicial. We
disagree.
A. Additional Background
¶ 10 Before trial, Bergeron moved to exclude any expert testimony
(1) using the terms “shaken baby syndrome,” “abusive head
trauma,” “acceleration-deceleration,” “whiplash,” or “triad”;
(2) implying that the trio of injuries defined as the “triad” — “retinal
4
hemorrhage, subdural hematoma, and hypoxic/ischemic injury or
encephalopathy” — was a diagnostic conclusion of abuse; and
(3) suggesting that shaking could be the possible cause of N.P.’s
injuries.
1
In response, the prosecution clarified that it was only
endorsing Dr. Wallace as an expert to testify about abusive or
nonaccidental head trauma and the injuries N.P. sustained.
¶ 11 The district court held a Shreck hearing at which Dr. Wallace
testified. She first detailed her training and experience qualifying
her to testify as an expert in child abuse and neglect. Bergeron
does not dispute Dr. Wallace’s qualifications.
¶ 12 Dr. Wallace then testified that “abusive head trauma” or
“nonaccidental head trauma” is a head injury primarily seen in
infants and young children that is not the result of an accident or
another medical condition. She explained that “shaken baby
1
Bergeron appears to challenge the admission of evidence of
“shaken baby syndrome,” “acceleration-deceleration,” “whiplash,” or
“triad,” but she does not identify where in the record such evidence
was admitted or otherwise develop the argument, instead focusing
on Dr. Wallace’s testimony about “abusive head trauma.” Notably,
Dr. Wallace testified at the Shreck hearing that she does not use the
terms “shaken baby syndrome,” “whiplash,” or “triad.” Because
this part of Bergeron’s argument is conclusory and underdeveloped,
we decline to address it. See Sanchez v. Indus. Claim Appeals Off.,
5
syndrome” is an outdated term that has “evolved to abusive head
trauma, which is a more inclusive terminology that includes
injuries that can be sustained by shaking as well as by impact or a
combination of both mechanisms.” She also made clear that a
medical determination of abusive or nonaccidental head trauma is
different from legal concepts such as intent or identifying who
caused a child’s injury.
¶ 13 The doctor testified that the standards used to determine
whether an injury is abusive or nonaccidental are informed by
medical literature and studies published by other medical
professionals. She said there were “too many [studies] to count”
related to abusive or nonaccidental head trauma as a medical
diagnosis, many of which addressed how to better diagnose such
trauma based on the factors, signs, and symptoms. Dr. Wallace
explained that there was no way to ethically replicate the injuries in
an empirical study (for example, by shaking a group of infants to
see how they are injured) to confirm the diagnosis. In response to
questioning by the court, she explained that medical professionals
follow patients “longitudinally” — meaning they follow patients for a
few years — to see if a different medical condition was the actual
6
cause of the trauma, and she has “not yet seen a case where we
missed a diagnosis.”
¶ 14 Dr. Wallace explained the procedures she employs when
diagnosing patients. She first reviews the patient’s medical
history — from the child, a parent, or medical records — and then
conducts a “head-to-toe” physical examination. Based on what she
finds during these first two steps, she conducts additional testing
such as lab work or radiology studies.
¶ 15 The doctor testified that she considered the following before
diagnosing N.P.: the history given by mother that N.P. had been
acting normally that morning, including eating and drinking; N.P.’s
historically slow weight gain; the scans that showed bilateral
subdural hematomas; the significant retinal hemorrhages in N.P.’s
left eye; the bruising on N.P.’s forehead; N.P.’s torn frenulum; the
blood work that did not show anything abnormal; and the rapid
change in N.P.’s mental status and her seizures. Dr. Wallace came
to a medical diagnosis that N.P.’s injuries were most consistent with
abusive head trauma.
¶ 16 The district court orally ruled at the Shreck hearing that Dr.
Wallace’s testimony provided
7
a firm foundation for the scientific principles
regarding how doctors in the field of pediatric
medicine, and specifically in child abuse
pediatrics, go about trying to discern
symptoms that are presented in the course of
an examination, patient histories that are
provided, and then additional follow-up, as has
been pointed out by the prosecution, such as
resorting to a review possibly of different types
of scans, considering the content of blood
work, and various other issues along the lines
of a differential diagnosis to rule out possible
alternative mechanisms for what may be
causing the symptoms to present.
The court determined that the lack of replicable studies did not
detract from the underlying reliability of the methodology because
reliance on clinical data is both ethical and appropriate. The court
found that significant literature has been generated about the
diagnosis and that most of the disputes revolve around “how the
conclusions may be reached as opposed to whether or not the
conclusions can be reached.” The court noted “that the standard is
not that the scientific principles have to be perfect or wholly
infallible or not subject to challenge, but rather reasonably reliable.”
Based on that standard, the court ruled that Dr. Wallace’s
testimony was admissible.
8
B. Generally Applicable Law and Standard of Review
¶ 17 CRE 702 allows for the admission of qualified expert testimony
if it will assist the trier of fact to understand the evidence or to
determine a fact in issue. The focus of a CRE 702 inquiry is
whether the proffered evidence is both reliable and relevant. People
v. Shreck, 22 P.3d 68, 77 (Colo. 2001).
¶ 18 To determine the admissibility of expert testimony, a trial
court must analyze whether (1) the underlying scientific principles
are reasonably reliable; (2) the expert is qualified to offer the
testimony; (3) the testimony would be helpful to the jury; and
¶ 47. Under CRE 403, relevant evidence “may be excluded if its
probative value is substantially outweighed by the danger of unfair
prejudice, confusion of the issues, or misleading the jury.”
¶ 19 A trial court has broad discretion to determine whether expert
testimony is admissible, and we “will reverse only when [the court’s]
decision is manifestly erroneous.” Cooper, ¶ 44 (quoting People v.
Rector, 248 P.3d 1196, 1200 (Colo. 2011)); see People v. Martinez,
74 P.3d 316, 322 (Colo. 2003). In reviewing a trial court’s ruling
under CRE 403, “we assume the maximum probative value that a
9
reasonable fact finder might give the evidence and the minimum
unfair prejudice to be reasonably expected.” People v. Clark, 2015
COA 44, ¶ 18 (quoting People v. James, 117 P.3d 91, 94 (Colo. App.
2004)).
C. The District Court Did Not Err by Concluding the Expert
Testimony Was Reliable
¶ 20 Bergeron contends the district court erred by concluding that
Dr. Wallace’s expert testimony was reliable because (1) the record
lacks medical studies, publications, or witnesses to support that
the standards and practices Dr. Wallace uses are proper and
generally accepted within the scientific community; (2) the record
lacks any articles or publications to suggest the evidence was
subject to peer review; and (3) Dr. Wallace relied upon medical
history given by mother and the police in diagnosing N.P.’s injury as
abusive or nonaccidental. For four reasons, we are not persuaded.
¶ 21 First, Dr. Wallace testified that the standards and practices
used to reach the medical diagnosis of abusive or nonaccidental
trauma are generally accepted. Dr. Wallace’s testimony is not an
external authority, but it is evidence upon which the court can
properly rely. See People v. Ruibal, 2015 COA 55, ¶ 29 (“CRE 702
10
does not require experts to rely on ‘authoritative sources,’ but
rather any ‘knowledge, skill, experience, training, or education.’”),
aff’d, 2018 CO 93. Bergeron cites no authority requiring the
proponent of expert testimony to submit “studies, publications, or
supporting witnesses” to establish reliability. Cf. Shreck, 22 P.3d at
77-78 (explaining that a trial court’s determination of the reliability
of an expert’s testimony is a “flexible, fact-specific” inquiry with no
particular set of factors to consider).
¶ 22 Second, the record shows that the prosecution submitted at
least one study that surveyed more than 600 clinicians, cited
several other studies and medical publications, and concluded that
abusive head trauma is “generally accepted as [a] valid medical
diagnos[i]s across a broad range of specialties.” At the Shreck
hearing, Dr. Wallace explained that there are no objective
measurements or empirical studies related to abusive head trauma
because that would require “taking healthy infants and shaking
them or abusing them, so obviously we’re not going to do that.” Dr.
Wallace also said that medical associations recognize abusive head
trauma as a medical diagnosis, including an estimated fifteen
organizations across the United States, the United Kingdom, and
11
Canada. Again, Bergeron cites no authority requiring the
proponent of expert testimony to offer a specific number of peer-
reviewed publications before the testimony may be admitted.
¶ 23 Third, Dr. Wallace did not rely solely on the medical history
conveyed by mother or the police. She also conducted a physical
examination, ordered scans and reviewed the results, and
completed blood work. See People v. Ramirez, 155 P.3d 371, 380
(Colo. 2007) (“There is no question that a medical examination is a
reliable ‘scientific principle.’”).
¶ 24 Fourth, Bergeron’s contentions go to the weight of the
evidence and not its admissibility. See People v. Shanks, 2019 COA
160, ¶ 12 (“Concerns about . . . whether a qualified expert
accurately applied a reliable methodology go to the weight of the
evidence, not its admissibility.”). The types of issues Bergeron
raises are adequately addressed by “vigorous cross-examination,
presentation of contrary evidence, and careful instruction on the
burden of proof.” Id. (quoting People v. Campbell, 2018 COA 5,
¶ 42); see Est. of Ford v. Eicher, 250 P.3d 262, 266 (Colo. 2011)
(concerns about the degree of certainty of an expert’s opinion
should be addressed similarly). Despite her claims that “[t]he
12
record and evidence establish that the evidence . . . is unreliable
because it lacks adequate foundation and evidentiary support,”
Bergeron does not point us to any evidence undermining the
reliability of the scientific principles underlying Dr. Wallace’s
testimony.
¶ 25 Accordingly, we conclude that the district court’s reliability
findings are supported by the record and that it did not abuse its
discretion by admitting Dr. Wallace’s testimony. See Cooper, ¶ 44;
Martinez, 74 P.3d at 322.
D. The District Court Did Not Err by Admitting the Evidence
Under CRE 403
¶ 26 Bergeron contends that the district court erred by admitting
Dr. Wallace’s expert testimony under CRE 403 because (1) the
underlying scientific principles are unreliable; (2) the testimony
improperly bolstered the prosecution’s case; and (3) the doctor’s use
of the terms “abusive head trauma” and “nonaccidental injury”
effectively directed the jury to find Bergeron guilty.
2
We are not
persuaded.
2
The parties dispute whether Bergeron preserved these arguments,
but because the majority concludes that the district court did not
err by admitting the evidence, we need not resolve the dispute.
13
1. Reliability
¶ 27 We reject Bergeron’s argument that Dr. Wallace’s testimony
was unduly prejudicial because the scientific principles underlying
it are unreliable because we have already concluded that the
evidence is reasonably reliable. See People v. Perkins, 2023 COA
38, ¶ 49 (expert testimony based on reasonable inferences drawn
from physical investigation, professional experience, and technical
knowledge was not unduly prejudicial where such testimony was
both relevant and reliable).
2. Bolstering
¶ 28 Bergeron argues that Dr. Wallace’s testimony improperly
bolstered the prosecution’s case because the doctor discussed the
heightened standards medical professionals apply when diagnosing
abusive or nonaccidental head trauma. Although such testimony
certainly bolstered the prosecution’s case and prejudiced the
defense, Bergeron fails to explain how those effects were “improper.”
¶ 29 On the contrary, “[a]ll relevant and admissible evidence ‘is
inherently prejudicial’” to at least one of the parties. People v.
Kembel, 2023 CO 5, ¶ 53 (quoting Masters v. People, 58 P.3d 979,
1001 (Colo. 2002)). And “any evidence that strengthens the
14
prosecution’s case carries with it some degree of disadvantage to an
accused.” People v. Garner, 806 P.2d 366, 375 (Colo. 1991). In
recognition of these fundamental evidentiary concepts, CRE 403
only excludes evidence that is unfairly prejudicial. Unfair prejudice
refers to “‘an undue tendency on the part of admissible evidence to
suggest a decision made on an improper basis’ and does not mean
prejudice that results from the legitimate probative force of the
evidence.” People v. Rath, 44 P.3d 1033, 1043 (Colo. 2002) (quoting
People v. Gibbens, 905 P.3d 604, 608 (Colo. 1995)).
¶ 30 The legitimate probative force of Dr. Wallace’s expert testimony
was to establish that N.P.’s injuries resulted from abusive or
nonaccidental head trauma — as those terms are used for purposes
of medical diagnosis. Her explanation that doctors are “very
careful” when making medical diagnoses did not encourage the jury
to decide the case on an improper basis “such as bias, sympathy,
hatred, contempt, retribution, or horror.” People v. Gonzales, 2019
prejudice resulting from Dr. Wallace’s testimony. See Rath, 44 P.3d
at 1043.
15
3. Directing a Guilty Verdict
¶ 31 Bergeron argues that Dr. Wallace’s testimony that “abusive
head trauma equates to a non-accidental injury” directed the jury
to find Bergeron guilty. While an expert may offer testimony that
embraces an ultimate issue to be decided by the trier of fact, see
CRE 704, an expert cannot usurp the factfinding function of the
jury, see Rector, 248 P.3d at 1203.
¶ 32 At trial, Dr. Wallace testified that a medical diagnosis of
“abusive head trauma” was interchangeable with the term
“nonaccidental head trauma.” She explained that “abusive head
trauma is a category or group of different injuries” generally seen in
younger children that occurs “when they sustain a brain injury or a
head injury that is not caused by an accident.” The doctor said
that such an injury is “traumatic in nature,” not “from falling off the
bed or falling off the slide at the playground,” but instead “caused
by the actions of another person. So in that sense nonaccidental.”
When asked again to define “nonaccidental head trauma,” Dr.
Wallace said it is “[e]ssentially another way to say abusive head
trauma.”
16
¶ 33 But Dr. Wallace also made clear that a medical diagnosis of
“abusive head trauma” was different from the legal standards that
apply in a criminal case. She explained,
[W]hen I diagnose a child with abusive head
trauma, that’s strictly from the medical
perspective. It’s also important to know that
it’s never my job to say who did it. . . . That’s
dealt with by law enforcement and [the
department of human services] and other
professionals who I work alongside, but
that’s . . . their domain.
¶ 34 Dr. Wallace neither directed the jury to reach a certain result
nor expressed an opinion of the applicable law or legal standards,
see Rector, 248 P.3d at 1203; instead, she distinguished her opinion
from the ultimate question the jury was tasked with answering.
She did not usurp the jury’s factfinding function, and her testimony
was not unduly prejudicial for that reason.
¶ 35 Even if Dr. Wallace’s testimony came close to the line, the
district court cured any potential prejudice with Instruction 8,
which stated:
You are not bound by the testimony of a
witness who has testified as an expert; the
credibility of an expert’s testimony is to be
considered as that of any other witness. You
may believe all of an expert witness’s
testimony, part of it, or none of it.
17
In this case, you heard evidence from a
physician describing injuries purportedly
associated with [a]busive [h]ead [t]rauma. The
physician’s testimony was admitted because it
involved the type of evidence upon which
experts in the field of child abuse may rely in
order to conclude whether a trauma was
[nonaccidental] in nature. This testimony was
not a binding legal conclusion of child abuse.
You are the sole judges of credibility in this
case. You must determine whether the
testimony offered by the physician is
consistent with or contradicts the other
evidence presented to you. The weight you
give the testimony is entirely your decision.
(Emphasis added.) See id. (a factor to consider in determining
whether an expert usurped the jury’s function is whether the jury
was properly instructed on the law and that it may accept or reject
the expert’s opinion).
¶ 36 Accordingly, we conclude that the district court did not abuse
its discretion by admitting Dr. Wallace’s testimony.
III. Sufficiency of the Evidence
¶ 37 With respect to both child abuse charges, Bergeron contends
that the prosecution presented insufficient evidence that she
caused N.P.’s injuries or that she acted knowingly or recklessly. We
are not persuaded.
18
A. Standard of Review and Generally Applicable Law
¶ 38 We review de novo whether the evidence before the jury was
sufficient both in quantity and quality to sustain a conviction.
McCoy v. People, 2019 CO 44, ¶ 63; People v. Garcia, 2022 COA 83,
¶ 16, rev’d on other grounds, 2024 CO 41M. We view the relevant
evidence, both direct and circumstantial, as a whole and in the light
most favorable to the prosecution to determine whether it is
substantial and sufficient to support a conclusion by a reasonable
mind that the defendant was guilty beyond a reasonable doubt.
McCoy, ¶ 63. In doing so, we give the prosecution the benefit of
every reasonable inference that might fairly be drawn from the
evidence. Garcia, ¶ 16. “We must leave the determination of the
credibility of witnesses to the jury,” and “[w]e may not serve as the
‘thirteenth juror’ to weigh various pieces of evidence or resolve
conflicts in the evidence.” Butler v. People, 2019 CO 87, ¶ 20 (citing
People v. Sprouse, 983 P.2d 771, 778 (Colo. 1999)).
B. The Evidence was Sufficient to Support Bergeron’s Convictions
¶ 39 Under section 18-6-401(1)(a), C.R.S. 2023,
[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
19
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.
¶ 40 As relevant here, the culpable mental state for causing injury
to a child is “knowingly or recklessly.” § 18-6-401(7)(a)(III), (V). To
act “knowingly,” “a defendant need only be aware of the conduct
that he is engaging in with the child.” People v. Archer, 2022 COA
71, ¶ 19. To act “recklessly,” a defendant must “consciously
disregard a substantial and unjustifiable risk that, given the child’s
circumstances, the child may be injured.” Id.
¶ 41 To support the child abuse resulting in serious bodily injury
charge, the prosecution presented at least the following evidence:
• Mother said that on October 10, N.P. woke up as usual, was
drinking milk, jumping, and playing with her toys.
• Bergeron testified that N.P. seemed “woozy” and “not stable”
when mother dropped her off, but a detective testified that
Bergeron had not described anything unusual about N.P.’s
behavior when mother dropped her off.
20
• Bergeron said that N.P. was “cooing and googling” in her
playpen, so Bergeron picked N.P. up and tried to play patty-
cake with her.
• Bergeron explained that N.P. kept dozing off, so Bergeron
tried to stimulate her by bouncing her up and down.
Bergeron said that at one point, N.P. was lying down while
Bergeron was bouncing her on the bed. Bergeron’s hands
were on both sides of N.P. on the bed.
• After Bergeron played with N.P., N.P. appeared to fall asleep
hard. Bergeron texted mother, “I have never seen her sleep
this hard. Does she sleep hard sometimes?”
• Mother returned to Bergeron’s house and found N.P. lying
on her back, unresponsive.
• Mother asked Bergeron to call 911, but Bergeron told
mother to take N.P. to the hospital in her own car. Mother
had to ask Bergeron a second time to call 911.
• A detective estimated that the time between when N.P. was
dropped off with Bergeron until the 911 call was about
thirty-five minutes. Based on mother’s testimony, N.P. was
21
at Bergeron’s house for approximately an hour before
mother returned.
• At the hospital, N.P. presented with seizures and an altered
mental state. She suffered subdural hemorrhages on both
sides of her brain and retinal hemorrhages in her left eye.
Dr. Wallace diagnosed N.P. with abusive head trauma, a
nonaccidental injury.
• Dr. Wallace testified that the injury that caused N.P.’s
seizures and altered mental status did not happen over a
period of time. Rather, the symptoms would have developed
“pretty much immediately” after the injuries occurred, and
“[t]here would not have been a long delay of hours to days if
she was being described as acting normally.”
¶ 42 From this evidence, a reasonable jury could infer that N.P. was
functioning normally and was uninjured when mother left her in
Bergeron’s care. N.P. then suffered abusive head trauma. No one
disputes that N.P.’s injuries would constitute serious bodily injury.
N.P.’s injuries were not the type of injuries that would result from
an accident. And they were so severe they would have resulted in
almost immediate symptoms. Viewed in the light most favorable to
22
the prosecution, this evidence would allow a reasonable jury to find
beyond a reasonable doubt that Bergeron committed child abuse
resulting in serious bodily injury. See People v. Christian, 632 P.2d
1031, 1033 (Colo. 1981) (expert medical testimony that child’s fatal
injuries were nonaccidental, combined with circumstantial evidence
that injuries occurred during a time when defendant was alone with
the child, was sufficient to support conviction for felony child
abuse).
¶ 43 Against this evidentiary backdrop, the jury heard the following
facts regarding the child abuse resulting in injury charge:
• Bergeron admitted that she injured N.P.’s mouth while
feeding her and that the injury caused blood.
• Dr. Wallace noted the torn frenulum in N.P.’s mouth.
• A detective testified that a torn frenulum is a common
injury from force feeding.
¶ 44 From this evidence, a reasonable jury could infer that
Bergeron caused N.P.’s torn frenulum while feeding her forcefully.
Particularly given the other injuries Bergeron was accused of
inflicting on N.P., the jury could have found that Bergeron did so
knowingly or recklessly. Viewed in the light most favorable to the
23
prosecution, this evidence would allow a reasonable jury to find
beyond a reasonable doubt that Bergeron committed child abuse
resulting in injury.
¶ 45 We are not persuaded otherwise by Bergeron’s contention that
there was no evidence that she had a history or pattern of abusive
or neglectful conduct. Section 18-6-401(1)(a) is written in the
disjunctive, using the word “or” to establish three different ways to
commit child abuse. See Armintrout v. People, 864 P.2d 576, 581
(Colo. 1993) (“[W]hen the word ‘or’ is used in a statute, it is
presumed to be used in the disjunctive sense, unless legislative
intent is clearly to the contrary.”); see also McCoy, ¶ 37 (we
interpret a statute de novo). Here, the prosecution alleged that
Bergeron knowingly or recklessly caused an injury to N.P. or
permitted N.P. to be unreasonably placed in a situation that posed
a threat of injury to her. The prosecution was not required to prove
that Bergeron had a history or pattern of abusive conduct. See
§ 18-6-401(1)(a); Armintrout, 864 P.2d at 581.
¶ 46 Bergeron also argues that the evidence presented to prove her
guilt was insufficient because it was entirely circumstantial. We
acknowledge that the evidence presented to prove Bergeron’s guilt
24
was largely circumstantial, rather than direct, evidence. See
COLJI-Crim. D:01 (2023) (defining “[d]irect evidence” as “based on
first-hand observation of the fact in question” and “[c]ircumstantial
evidence” as “indirect,” and “based on observations of related
facts”). However, circumstantial evidence is afforded the same
weight as direct evidence, “and an exclusively circumstantial case
need not exclude every reasonable hypothesis other than guilt to
withstand a motion for a judgment of acquittal.” Christian, 632
P.2d at1038 (quoting People v. Elkhatib, 632 P.2d 275, 279 (Colo.
1981)); see also People v. Buckner, 2022 COA 14, ¶ 83 (“[I]n
determining the sufficiency of the evidence, the law makes no
distinction between direct and circumstantial evidence.”).
Moreover, evidence of a defendant’s culpable mental state “can
rarely be proven other than by circumstantial or indirect evidence.”
People v. Mandez, 997 P.2d 1254, 1264 (Colo. App. 1999).
¶ 47 We also note that Bergeron testified at trial, and the jury
obviously disbelieved her. See People v. Clark, 214 P.3d 531, 538
(Colo. App. 2009) (Once a jury disbelieves a defendant, it is “entitled
to consider whatever it concluded to be perjured testimony as
affirmative evidence of guilt.” (quoting Wright v. West, 505 U.S. 277,
25
296 (1992) (Thomas, J., joined by Rehnquist, C.J., and Scalia, J.))),
aff’d on other grounds, 232 P.3d 1287 (Colo. 2010). We cannot
substitute our assessment of credibility for that of the fact finder.
See id.
¶ 48 We conclude that the evidence was substantial and sufficient
to support a conclusion by a reasonable mind that Bergeron was
guilty beyond a reasonable doubt.
IV. Disposition
¶ 49 We affirm the judgment of conviction.
JUDGE FREYRE concurs.
JUDGE JOHNSON specially concurs.
26
JUDGE JOHNSON, specially concurring.
¶ 50 The overwhelming majority of states that have analyzed
whether an expert can testify using the terms “nonaccidental head
trauma” or “abusive head trauma” have concluded that such terms
are admissible. See State v. Hatfield, 484 P.3d 891, 901 (Kan. Ct.
App. 2021); State v. Stewart, 923 N.W.2d 668, 676 (Minn. Ct. App.
2018); Wolfe v. State, 509 S.W.3d 325, 335 (Tex. Crim. App. 2017).
And our state is no different. See, e.g., People v. Rector, 248 P.3d
¶ 51 Consequently, the majority’s opinion is well reasoned when it
holds that the court did not err when Dr. Nicole Wallace (Dr.
Wallace) used those terms in her testimony. But as Euripides once
wrote in Heracleidae, “In case of dissension, never dare to judge till
you’ve heard the other side,” and I am doing my little part to put
forth that other side.
¶ 52 Bergeron challenged Dr. Wallace’s testimony on grounds that
it was unreliable and irrelevant. On appeal, Bergeron contends that
using the terms “nonaccidental” or “abusive” interchangeably to
describe a young child’s injury was unduly prejudicial because it
27
imparts to a jury that “medical experts have already determined
that essential elements of the charged offense have been satisfied.”
I interpret this argument to be that such testimony usurps the role
of the jury. But I agree with the Attorney General that this
argument was not made before or at trial. Therefore, while I depart
from my colleagues that the testimony was properly admitted, I
specially concur in the judgment because the error was not obvious
under the current case law, so I cannot say it is reversible error.
See People v. Crabtree, 2024 CO 40M, ¶¶ 4, 43 (reaffirming that the
elements of plain error are that the error must be “obvious” and it
must affect the “substantial rights of the accused” (quoting People v.
Stewart, 55 P.3d 107, 120 (Colo. 2002))); Hagos v. People, 2012 CO
63, ¶ 14 (we review unpreserved errors for plain error).
¶ 53 I do not quibble with the general principle that an expert may
“offer testimony that embraces an ultimate issue to be decided by
the trier of fact.” Rector, 248 P.3d at 1203; see CRE 704. But an
expert may not usurp the jury’s factfinding role. Weeks, ¶ 88. The
expert must also not “express[] an opinion of the applicable law or
legal standards.” People v. Destro, 215 P.3d 1147, 1152 (Colo. App.
28
2008) (quoting Quintana v. City of Westminster, 8 P.3d 527, 530
(Colo. App. 2000)).
¶ 54 It is generally well settled in Colorado that if an expert’s
testimony satisfies the four factors from Rector, the court does not
abuse its discretion by admitting the evidence. To determine
whether an expert usurped the role of the jury, courts consider
whether (1) through cross-examination or closing argument,
defense counsel clarified the expert’s testimony; (2) the expert did
not testify as to the applicable standard of law or legal standards;
(3) the jury was properly instructed on the law to apply and
specifically instructed that the jury can reject the expert’s
testimony; and (4) the expert did not opine that the defendant
committed the crime or that there is a particular likelihood the
defendant committed the crime. Weeks, ¶ 89.
¶ 55 We reason that a doctor’s testimony about a victim’s injuries is
probative under CRE 403 because the methodologies commonly
used by doctors include “(1) examining the patient’s physical
condition and injuries; (2) using a process of eliminating various
illnesses and diseases to diagnose a patient; and (3) reviewing the
patient’s history to determine a possible cause for the patient’s
29
injuries.” People v. Friend, 2014 COA 123M, ¶ 29, aff’d in part and
rev’d in part, 2018 CO 90. In other words, by using the victim’s
medical history, the prosecution uses the doctor’s testimony to
refute when a defendant claims that her actions were accidental.
And such evidence is not unduly prejudicial “because it would not
‘move the jury to any sort of irrational behavior, that they would
use [the doctor’s] testimony to bring in a verdict based on improper
motive or anything of the like.’” Id. at ¶ 33.
¶ 56 Consistent with this methodology, Dr. Wallace explained that
“abusive head trauma” is often found in children or infants, two
years or younger, who have sustained “a brain injury or head injury
that is not caused by an accident.” She further explained that the
injury is not caused by “falling off the bed or falling off the slide at
the playground or something like that.” Instead, “[i]t is an injury
caused by the actions of another person.”
¶ 57 She further explained that when a baby is shaken, the
acceleration and deceleration results in the brain “bouncing around
inside the skull.” In contrast, if a baby falls off the bed, the head
injury manifests differently because the infant “fall[s] straight down
on the floor.” Thus, according to Dr. Wallace, nonaccidental head
30
trauma and abusive head trauma are essentially the same thing,
meaning the trauma did not happen from a “typical childhood
accident.”
¶ 58 Dr. Wallace based her expert opinion, in part, on what was
known of N.P.’s medical history, the mother’s version of events the
morning of the incident, and the severity of the injuries N.P.
sustained. Taking all this together, Dr. Wallace opined that N.P.’s
injuries were inconsistent with Bergeron’s statements that Bergeron
had been bouncing the baby on the bed.
¶ 59 As the majority notes, Dr. Wallace testified that the terms
“nonaccidental” or “abusive” head trauma are medical diagnoses
that are unrelated to the legal standard. Supra ¶ 33. Dr. Wallace
also testified that she has never opined on whether a parent or
another caregiver might have caused the injury. Supra ¶ 33. And
the jury was instructed before Dr. Wallace’s testimony and with jury
instructions that it could reject her testimony. Therefore, we
presume the jury followed the instructions. See People v. Garcia,
whether Bergeron committed the abuse, Dr. Wallace’s testimony
that embraced an ultimate legal issue was allowed to be offered so
31
long as it did not usurp the jury’s role. See Rector, 248 P.3d at
1203.
¶ 60 But the Rector factors condone the use of these terms as a
matter of course. Going through them, though — especially in a
case like this where the mother had not been away from the child
for a significant period of time when Bergeron was alleged to have
committed the abuse — demonstrates how these terms
inappropriately usurp the role of the jury.
¶ 61 First, Rector says that if defense counsel clarifies the
terminology on cross-examination, the phrasing is likely admissible.
Id. But why have we established a test that puts any burden on the
defense to clarify evidence the prosecution seeks to admit? Is it not
true that the prosecutor always retains the burden of proof and that
the defendant could simply sit at counsel table and not present a
defense at all? Indeed, this point was made in closing argument
when the prosecutor said that Bergeron was not willing to tell the
jury what had happened to N.P. The court sustained defense
counsel’s objection and specifically said,
Ladies and gentlemen, the silence of the
defendant is something that is sacred in a
court of law, and in a criminal case the
32
Defense is never required to put on evidence or
to provide particular testimony.
In this case, the defendant did testify. But I
don’t want you to mistake that for meaning
that the Defense took on some burden of
producing particular evidence in this case.
Therefore, I would change the first Rector factor to be that if the
prosecutor chooses to elicit expert testimony that the child’s injury
was “abusive” or “nonaccidental,” it is the prosecutor’s
responsibility to clarify the medical definition for the jury. See
People v. Keck, No. 346077, 2022 WL 128582, at *10 (Mich. Ct.
App. Jan. 13, 2022) (unpublished opinion) (“It was the prosecution’s
burden to prove that CK’s injuries were nonaccidental, but
defendant did not have a burden to prove an accidental injury.”).
¶ 62 Here, Dr. Wallace said that nonaccidental head trauma is “an
injury that is caused by the actions of another person.” If she had
left her testimony there, then my issue with these terms — while
still finding them problematic — would be diminished. But she
went on to say, “So in that sense [it is] nonaccidental.” At another
point in her testimony, Dr. Wallace said abusive head trauma is
“not the result of an accident.” And yet another colloquy between
33
Dr. Wallace and the prosecutor did nothing to amplify the medical
terminology’s distinction from its use as a legal term:
Q: Did you form an opinion as to whether or
not these injuries were accidental?
A: Yes.
Q: What was that opinion?
A: Again, abusive head trauma or
nonaccidental trauma.
¶ 63 There is a way to identify a child’s injury with less
inflammatory language. In 2009, the American Academy of
Pediatrics adopted the term “abusive head trauma” to mean the
“constellations of injuries that are caused by the directed
application of force to an infant or young child, resulting in physical
injury to the head and/or its contents.” People v. McFarlane, 926
N.W.2d 339, 349 (Mich. Ct. App. 2018) (quoting Sissoko, 182 A.3d
at 900). One court has described it as “a medical diagnosis, which
‘by definition . . . involves trauma caused by human agency.” State
v. Galvez, No. CAAP-18-0000417, 2019 WL 2296252, at *7 (Haw.
Ct. App. May 30, 2019) (unpublished opinion) (quoting McFarlane,
926 N.W.2d at 349). And another has said it is head “trauma that
is inflicted on a child.” In re MaKenna S., No. H14CP10010201A,
34
2011 WL 4447225, at *10 (Conn. Super. Ct. Aug. 31, 2011)
(unpublished opinion). All these descriptions adequately inform the
jury of the medical diagnosis that the child was injured by some
type of human involvement instead of circumstances where a child
fell off the slide or tripped down the stairs. But these descriptions
do so without imparting an intentional component to the human’s
conduct.
¶ 64 This leads me to the second Rector factor: the doctor did not
testify as to the applicable standard of law or legal standards. What
exactly does this mean? If a doctor says she does not know what
the legal standard is because, as Dr. Wallace said here, she leaves
that to law enforcement and the department of human services,
how does the jury know that the medical professional is not
equating a medical diagnosis with a legal standard or definition?
¶ 65 When a doctor opines that a child’s head trauma was
“abusive” or “nonaccidental,” this is akin to legal terms that go to
the actus reus and mens rea of a criminal offense. See Keith A.
Findley et al., Feigned Consensus: Usurping the Law in Shaken
Baby Syndrome/Abusive Head Trauma Prosecutions, 2019 Wis. L.
Rev. 1211, 1246 (2019). Such an opinion satisfies the actus reus
35
requirement by telling us that “someone applied violent force to
harm the child”; and it satisfies the mens rea requirement because
“if the injury is inflicted or the result of abuse, then the caregiver
acted not accidentally, but with a guilty mind.” Id. at 1246-47.
¶ 66 An expert’s conclusion that a child’s injuries were “abusive” is
a “quintessentially legal question[], not [a] medical question[].” Id.
at 1247. Indeed, legally, “if the injury is inflicted, the child might be
removed from the parents, or the caregivers might be prosecuted
criminally,” whereas medically, “there is no difference in treatment
for the brain injuries a child suffers depending on whether any
trauma the child suffered was applied intentionally (inflicted) or
accidentally.” Id.
¶ 67 My point is strengthened by reference to a specific statute that
uses similar terms. In the Colorado Children’s Code, “[e]vidence
that child abuse or nonaccidental injury has occurred shall
constitute prima facie evidence that such child is neglected or
dependent, and such evidence shall be sufficient to support an
adjudication under this section.” § 19-3-505(7)(a), C.R.S. 2023
(emphasis added). If a court were asked to interpret the meaning of
those italicized words, it would first look to the plain and ordinary
36
“Abuse” means “physical maltreatment.” Merriam-Webster
Dictionary, https://perma.cc/Z47L-56H6. The definition of
“nonaccidental” is “not accidental, intentional.” Collins Dictionary,
https://perma.cc/S5YV-XBY5. Based on these definitions, it is not
a huge leap for a court conducting statutory interpretation to
equate “nonaccidental” injury and abusive head trauma with
intentional conduct. And yet we are asking a jury not to make such
a distinction?
¶ 68 As Bergeron points out, the word “nonaccidental” or a
variation thereof appears in the record over twenty times. And in
closing argument, the prosecutor said, “[W]ith regard to the abusive
head trauma, [Dr. Wallace] said this is traumatic in nature. It’s not
accidental.” Thus, the prosecutor used the medical terminology to
support that they had proved the mens rea element of the offense.
¶ 69 Lack of clarity on the medical term’s distinction from the legal
standard takes me to Rector’s third prong: whether the jury was
properly instructed on the law of the offense and that it may accept
or reject the expert’s opinion. This prong is toothless if the jury has
heard that “abusive” or “nonaccidental” head trauma is intentional
37
conduct, as diagnosed by a medical professional. At the very least,
a court’s limiting instruction should also include a statement that
the medical meaning of “abusive” or “nonaccidental” head trauma
does not at all define the cause of injury or signify whether the
child’s injuries were caused knowingly or recklessly (the levels of
intent at issue in this case).
¶ 70 Rector’s fourth factor can, like in this case, be problematic.
Even if the expert does not directly call out the defendant as the
perpetrator, the expert’s testimony can implicitly point to a specific
person. True, as the majority mentioned above, Dr. Wallace said
she never opines on who might have committed the abuse and that
such a function is not her job. But she also testified that much of
her diagnosis was based on the medical history provided to her
from the mother, who she credited, and that she had not talked
with or reached out to Bergeron. See People in Interest of J.R., 2021
COA 81, ¶ 32 (finding that although the doctor’s testimony was
impermissibly admitted because it indirectly pointed to the
defendant as the perpetrator of the sexual assault, admission of the
evidence did not constitute plain error).
38
¶ 71 I understand that it is not the medical professional’s
responsibility to investigate and track down who had access to the
child before the injury in order for them to come to a medical
diagnosis. But if we allow experts to use such terms as
“nonaccidental” or “abusive head trauma,” the jury should be aware
that those terms are limited to information that may lead doctors to
an erroneous medical diagnosis because they do not have all the
evidence. Defense counsel points out that the prosecutor bolstered
the doctor’s testimony by allowing Dr. Wallace to testify about how
“careful” medical professionals are before making a diagnosis of
“nonaccidental head trauma.” But in cases where the child was in
the care of a third party, the parent or family member who takes the
child to the hospital is likely to diminish any role played in the
child’s injuries. Thus, we should limit, not boundlessly allow,
experts’ use of diagnostic terms that impart intentional conduct
because this “purports to establish that the person with the child at
or very near the time of the collapse or onset of major symptoms
must have been the one who harmed the child.” Findley et al.,
2019 Wis. L. Rev. at 1248. This implied foregone conclusion of the
abuser is especially unfair in circumstances where a short time
39
elapsed between the child’s asymptomatic state and symptomatic
decline.
¶ 72 Bergeron testified that on the day in question, (1) N.P.’s
mother called her at 8:52 a.m. to drop N.P. off at Bergeron’s house;
(2) N.P.’s mother left Bergeron’s house between 8:58 and 9 a.m.
after dropping N.P. off; (3) N.P., although initially “cooing and
googling,” became unconscious shortly thereafter; (4) Bergeron
texted N.P.’s mother at 9:19 a.m. that N.P. was not waking up; (5)
N.P.’s mother returned to Bergeron’s house and starting shaking
N.P. to wake her up; (6) Bergeron called 911; and (7) the
paramedics arrived around 9:26-9:27 a.m.
¶ 73 Much of this timeline was corroborated by the mother’s
testimony. She testified that soon after waking up that morning
between 6 and 6:30 a.m., N.P. was “jumping, playing with her toys.”
Between 7 and 7:30 a.m., mother left to go drop N.P. off at
Bergeron’s house, arrived at 7:58 a.m., and was there for about five
minutes before leaving. In response to Bergeron later telling her
that N.P. was not waking up, mother called Bergeron at 8:52 a.m.
and returned to Bergeron’s house. Upon her return, mother tried
40
waking N.P. up by pinching her and patting her back, and she
asked Bergeron to call 911, which Bergeron did.
¶ 74 All this leads me to conclude that under the current Rector
formulation, Dr. Wallace’s use of the terms “nonaccidental” and
“abusive head trauma” should not have been admitted. The
prosecutor was given a leg up in allowing an expert to opine on not
just the type of injury, but the mens rea level of the offense under
the guise of a medical diagnosis.
¶ 75 But I also conclude that the impermissible testimony was not
plain error because it was not obvious. See Hagos, ¶ 14. Recently,
our supreme court reaffirmed that “the plainness prong demands
that the error be ‘so clear-cut, so obvious,’ a trial judge should be
able to avoid it without benefit of objection.” Crabtree, ¶ 42
(quoting Romero v. People, 2017 CO 37, ¶ 6). Thus an error is
obvious when it contravenes “(1) a clear statutory command; (2) a
well-settled legal principle; or ([3]) Colorado case law.” People v.
Sloan, 2024 COA 52M, ¶ 34 (quoting People v. Pollard, 2013 COA
31M, ¶ 40). The error here was not obvious given the current state
of the law. As discussed above, many courts, including in
Colorado, have held that a medical professional’s use of such terms
41
is admissible. The Colorado cases follow the test in Rector, a
supreme court decision, and this court is bound by that precedent.
See People v. Smith, 183 P.3d 726, 729 (Colo. App. 2008). Thus,
when “Colorado statutory law or case law would not have alerted
the trial judge to an unobjected-to error, the error cannot be
deemed plain.” Crabtree, ¶ 42. Given the supreme court’s
unambiguous directive that plain error must be both obvious and
substantial, Bergeron’s failure to satisfy the first prong forecloses a
finding of reversible error.
¶ 76 Accordingly, I disagree with Part II of the majority opinion but
concur in the judgment.
