State v. Covington , 2020 UT App 110 ( 2020 )

2020 UT App 110THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
TRAVIS A. COVINGTON,
Appellant.
Opinion
No. 20180641-CA
Filed July 30, 2020
Fifth District Court, St. George Department
The Honorable G. Michael Westfall
No. 141500282
Gary W. Pendleton and Trevor D. Terry, Attorneys
for Appellant
Sean D. Reyes and Kris C. Leonard, Attorneys
for Appellee
JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion,
in which JUDGES JILL M. POHLMAN and DIANA HAGEN concurred.
CHRISTIANSEN FORSTER, Judge:
¶1 Travis A. Covington was found guilty of aggravated
abuse of a disabled adult. Asserting that the State presented
insufficient evidence at trial to support his conviction and that
he was prejudiced by the joinder of his trial with that of his wife,
Covington appealed. We affirm.
BACKGROUND
¶2 Covington and his then-wife had a son (Victim) in
January 1992. Victim was diagnosed as autistic at an early age.
His parents divorced, and Covington received full custody of
State v. Covington
Victim in 1996. Covington married another woman (Wife) in
1999.
¶3 Wife consulted the internet to develop a special diet
suitable for Victim. 1 Covington, who worked as a certified
nursing assistant and apparently agreed with Wife that Victim
needed a special diet, followed that diet in feeding Victim for the
next ten years. Victim’s younger siblings were not placed on the
special diet.
¶4 Covington’s sister (Aunt) testified that on the occasions
that she dined with Covington’s family, Victim was not allowed
to associate with his siblings and had to sit by himself. Victim’s
grandfather (Grandfather), who lived near the Covingtons,
noticed that Victim was “ostracized” and “not allowed to do
some things that the other kids were allowed to do.” During one
visit, Grandfather noticed a lock on the outside of Victim’s
bedroom door. Covington told Grandfather the lock was “to
keep [Victim] from getting out in the night and getting into the
fridge” to eat “lunch meat and stuff . . . that he was craving.”
Grandfather noticed Victim began losing weight and told
Covington that he “was concerned that . . . [Victim] was getting
too thin,” eventually placing a strain on his relationship with
Covington to the point that Grandfather no longer had contact
with Victim. Aunt also told Covington and Wife that Victim
needed to be fed more.
¶5 After working as a nursing assistant for twenty-four
years, Covington lost his job at a hospital in Las Vegas, Nevada.
1. The diet was intended to address Victim’s perceived allergic
reactions to dairy products and dyes used in processed foods. It
was free of wheat and dairy products and low in preservatives,
sugar, salt, MSG, and certain fruits. It also prohibited microwave
use and exposure to electromagnetic fields and recommended
using high-grade stainless steel and iron pans. It allowed Victim
to eat chicken, salmon, potatoes, brown rice, a variety of
vegetables, and certain fruits.
20180641-CA 2 2020 UT App 110State v. Covington
The family—composed of Covington, Wife, Victim, and six
children born of the marriage between Covington and Wife—
then adopted a semi-nomadic lifestyle, living in a travel trailer
and selling novelty items at various recreational venues. Wife
assumed the duties of homeschooling all the children and the
household chores, and Covington did all the cooking for the
family.
¶6 In December 2013, Covington rented a vendor’s booth for
an upcoming event in Quartzite, Arizona, and the family
traveled there because the show was a “big money maker” that
Covington anticipated would “subsidize [the family’s] income
for the whole year.” Around the same time, Covington began to
worry that Victim’s health was deteriorating, so much so that he
began talking to his sisters about Victim’s condition. Aunt, who
lived in Hurricane, Utah, thought Victim, who was then twenty-
two years old and stood five feet and one inch tall, should come
and stay with her “because she already had some autistic kids”
and felt she might be better equipped to “handle [Victim’s]
autism.”
¶7 On the evening of January 7, 2014, while the family was
still in Quartzite, Victim collapsed in the travel trailer and was
transported to LaPaz Regional Medical Center (LaPaz) in Parker,
Arizona. Records from LaPaz listed Victim’s weight as eighty
pounds. Victim was diagnosed with hypoglycemia, treated, and
discharged about two hours later. On discharge, Covington was
instructed in writing to “increase [Victim’s] fluids and food
intake,” “follow up with family [doctor],” and “return as
necessary.” Covington signed the discharge papers and verbally
expressed that he understood the care instructions pertaining to
Victim. But after this incident, Covington never took Victim to a
doctor again.
¶8 A few days after the visit to LaPaz, Covington called Aunt
and told her that Victim “had a sugar drop, had to go to the ER.”
Covington asked if Victim could come to Aunt’s house for a time
so she could temporarily take “care of him and spend one on one
time with him.” Covington mentioned that Victim needed to
20180641-CA 3 2020 UT App 110State v. Covington
gain weight but did not mention the discharge instructions or
any other health concerns raised during Victim’s prior medical
visit. Aunt told Covington that she “didn’t feel right about
taking” care of Victim unless he was “doing . . . better,” but she
told Covington that she was willing to take in Victim if his
condition improved. Aunt subsequently received two texts from
Covington indicating that Victim “was doing better.”
¶9 The family then made its way to St. George, Utah, to visit
Wife’s ailing father, arriving in the evening of January 16, 2014.
Wife’s father died a few days later, and the family attended the
funeral on January 25. The record does not indicate the precise
location of Victim at all times during this period, but Covington
testified that he traveled between Utah and Nevada several
times:
We had to go back and forth all over, because we
had to do . . . storage in Mesquite, Nevada. We had
to go take care of taxes, multiple things. So I wasn’t
stuck in one spot. I had to keep to going back—I
was going back and forth between Arizona and
Nevada, back to Utah to see [Wife’s] dad again,
and then back over to try to get the taxes
submitted, and then back over to see her dad, and
then back over to try to do storage . . . .
Additionally, the record is clear that Covington rented a space in
an RV park in Hurricane early in the day of February 2, 2014.
¶10 Around noon of that same day, Covington took Victim
to Aunt’s house in Hurricane. Aunt testified that Victim looked
very thin and seemed weak to the point that “he was having
a hard time walking.” Aunt testified that Covington carried
in Victim’s belongings, sat him at the table, and gave him
“an orange and . . . some sort of cereal or something.” Aunt’s
husband (Uncle), who had seen Victim a year earlier, testified
that Victim had “lost a lot of weight” and “was having a hard
time walking” to the point that he had to use both hands to
20180641-CA 4 2020 UT App 110State v. Covington
grasp the stair railing to ascend the stairs. Covington told
Aunt and Uncle that Victim had been “having accidents,” but
he did not mention any other health concerns. Covington
and Wife, along with the other children, returned to
Aunt’s house a few hours later; Wife gave Aunt a copy
of Victim’s diet, and Covington brought some groceries for
Victim.
¶11 Later that evening, Uncle served Victim a meal of
two baked potatoes covered with chili and green beans. Victim
cleaned the plate. On Monday, February 3, Aunt weighed
Victim on her bathroom scale; he weighed fifty-two
pounds. Victim ate everything he was given for breakfast, lunch,
and dinner without incident. Aunt testified that she “tried the
best that [she] could” to adhere to the diet given to her for
Victim.
¶12 Covington’s cousin (Cousin) visited Aunt, Uncle, and
Victim that evening, and he was taken aback by Victim’s
appearance: “He looked real tiny. Very, very thin. What was
really strange was his just—how close the skin fit the contours of
his skull and around his teeth and everything.” After leaving,
Cousin kept “mulling over” the situation: “I was worried,
because to me, he—he looked to me like he was really near
death. That’s what it seemed to me like, and I was afraid for
[Aunt] and [Uncle] for one thing. I was afraid that he was going
to pass away . . . .” The next morning, Cousin called his
ecclesiastical leader (Leader), and after some discussion, it was
agreed “that somebody needed to take [Victim] to” an urgent
care facility.
¶13 Grandfather met Leader, Cousin, Uncle, and Victim at the
urgent care facility. Grandfather, who had not seen Victim in
three years, described Victim: “He [was] just flesh covered bones
standing there. I’ve never seen anybody that skinny in my life,
and it scared me.” It was determined that Victim’s condition was
too serious for the urgent care facility, so Grandfather drove him
to the emergency room of a hospital (Hospital) in St. George,
Utah.
20180641-CA 5 2020 UT App 110State v. Covington
¶14 A police officer took photographs of Victim at the urgent
care facility. The officer was troubled by Victim’s appearance,
describing it as “alarming” and saying he was “very emaciated,
extremely thin.”
¶15 Covington attempted to visit Victim at Aunt’s house, but
he was met there instead by a police officer, who informed
Covington that there were “concerns” and that Victim had been
taken “over to a facility and they were checking him out.” When
Covington arrived to visit Victim at the Hospital, he was
arrested.
¶16 On admission to the Hospital, Victim weighed fifty-five
pounds, and the emergency room doctor said it was “readily
apparent” that Victim was “severely cachectic,” meaning that he
was “[w]asting away” with a “lack of muscle mass, lack of
subcutaneous tissue, [and] protuberance of bony structures.” In
addition to being malnourished and underweight, the doctor
found that Victim was severely dehydrated and exhibited
alarming lactic acid levels, a condition the doctor said was
potentially life-threatening if left untreated. Victim was given the
maximum amount of saline solution to treat his dehydration. In
addition, the doctor was “concerned about” lab tests showing
Victim’s low hemoglobin, low potassium, low glucose, low
creatinine, and elevated liver enzymes. X-rays further revealed
that Victim had a pneumomediastinum, which the doctor
testified “can be [an] absolutely life threatening” condition in
which air leaks out of the esophagus, trachea, or lungs and into
the chest cavity. The doctor also testified that there was no
indication in the emergency room medical records or from his
observations that Victim was suffering from diarrhea when he
was admitted. The admitting doctor who took over Victim’s care
ordered additional testing of Victim’s electrolyte levels.
¶17 The primary care doctor (Treating Physician), who treated
Victim for the remainder of his stay (February 6–9, 2014) at the
Hospital, testified that Victim’s “overall . . . critical kind of
condition” worried her “very much.” Specifically, she identified
his emaciation, malnutrition, elevated enzymes indicating liver
20180641-CA 6 2020 UT App 110State v. Covington
inflammation, abnormal electrolyte levels, pneumomediastinum,
and failure to thrive as disconcerting.
¶18 Treating Physician testified that Victim met the definition
of malnourishment on several grounds. First, Victim experienced
extreme weight loss over a short period of time, losing twenty-
five pounds in four weeks or thirty-one percent of his body
weight. Second, Victim had a significant loss of muscle mass.
Third, Victim did not have any subcutaneous fat that Treating
Physician could detect.
¶19 Treating Physician testified that Victim showed
indications of having refeeding syndrome. 2 She noted that
refeeding syndrome refers to a “spectrum of metabolic
disturbances when an individual,” after a “lack of energy intake
or food intake for a prolonged period of time,” begins eating
again. Without controlled food intake, individuals with
refeeding syndrome might have severe imbalances in
electrolytes, possibly resulting in cardiac arrest and even sudden
death. Among the indications that Victim had refeeding
syndrome were his low electrolyte readings, specifically low
calcium, low magnesium, low potassium, and low phosphorus,
which Treating Physician testified is “the hallmark of refeeding
syndrome.” Victim was also anemic, had a low blood count, and
had elevated liver enzymes. Based on all these factors, Treating
Physician stated that in her professional opinion, Victim was
experiencing refeeding syndrome.
¶20 Treating Physician indicated that Victim faced two
scenarios if he had not been brought to the Hospital: (1) continue
to lose weight or (2) be provided with more food than his body
2. “Refeeding syndrome is a serious and potentially fatal
condition caused by sudden shifts in the electrolytes that help
the body metabolize food when food is re-introduced after
malnourishment or starvation.” Commonwealth v. Schlabig, No.
3815 EDA 2017, 2018 WL 3544880, at *4 n.5 (Pa. Super. Ct. July
24, 2018).
20180641-CA 7 2020 UT App 110State v. Covington
could handle. She explained that both scenarios were “very
dangerous” for Victim. If he continued to lose weight, his body
would start “to break down his internal organ[s]” and he would
experience organ failure “within a week or a month.” And if
Victim were to eat a sufficient amount of food in his
malnourished condition, then he would develop refeeding
syndrome, and the imbalance in his electrolytes would
“probably cause him a sudden death.” She concluded, “So
[under] both of the scenarios, it was very dangerous if he
was not treated in the [H]ospital. For that matter, I feel that
bringing him to the [H]ospital probably . . . saved his life.”
¶21 Treating Physician did not find any indication that Victim
was vomiting or had diarrhea. She also noted that Victim had no
trouble swallowing, did not exhibit respiratory problems, and
was not anorexic. While he was at the Hospital, Victim was
placed on a regular diet, and Treating Physician stated that
Victim “was very happy” and “constantly asked for food” when
he was under her care. After six days in the Hospital, Victim was
discharged and had gained nearly three pounds.
¶22 On discharge, Victim returned to Aunt’s house after
spending some time with Grandfather. After about fifteen
months on an unrestricted diet, Victim weighed 103 pounds
and had no problems with bowel movements, diarrhea,
vomiting, or allergic reactions to food. Aunt and Uncle
became Victim’s guardians and arranged for him to live at
a long-term care facility in Utah County. At the care facility,
Victim’s weight fluctuated between ninety and 100 pounds.
After medical testing ruled out physical causes for his weight
fluctuation, the care facility worked with psychiatrists and
licensed clinical social workers “to teach [Victim] that it was
okay to eat.” The care facility helped Victim to develop
socialization skills. At the time of trial, Victim weighed 123
pounds.
¶23 Covington was charged with aggravated abuse of
a disabled adult pursuant to Utah Code section 76-5-
111(2)(a). Wife was also bound over for trial for the same
20180641-CA 8 2020 UT App 110State v. Covington
charge, and the State moved to consolidate the cases.
Covington objected, arguing that he would be prejudiced by
evidence of Wife’s misconduct. The district court granted the
State’s motion.
¶24 At trial, the jury was presented with evidence recounting
the events described above. See supra ¶¶ 2–22. The State argued
that Covington had caused or permitted Victim’s health to be
injured by feeding him an inadequate diet. Alternatively, the
State argued that Covington had knowingly endangered
Victim’s health by leaving him with Aunt and Uncle and
advising Aunt to maintain the status quo with respect to the diet
under which Victim’s health had been deteriorating and without
sufficient explanation about Victim’s recent medical event that
required medical attention and possible medical intervention
and follow-up.
¶25 Covington defended against the charge by claiming that
he could not have known the seriousness of Victim’s condition
because Victim was shy about being seen without his clothes.
Covington also challenged the diagnosis of refeeding syndrome
by having his own expert opine that diarrhea or gastrointestinal
issues could account for Victim’s weight loss and low electrolyte
levels. The defense expert testified that he did not believe Victim
“had refeeding syndrome” and noted that the medical record
from the Hospital contained no indication that Victim suffered
from some of the common symptoms of severe malnourishment,
like cracks around the mouth, brittle nails, and poor wound
healing.
¶26 Covington and Wife were convicted as charged, and the
district court suspended Covington’s prison sentence,
suspended his fine, ordered him to serve sixty days in jail, and
placed him on probation for thirty-six months. Covington timely
appeals. 3
3. Wife also appealed, but her appeal was dismissed.
20180641-CA 9 2020 UT App 110State v. Covington
ISSUES AND STANDARDS OF REVIEW
¶27 The first issue Covington raises on appeal is whether
sufficient evidence was presented at trial to prove that he caused
Victim to be injured. The second issue he raises is whether the
State presented sufficient evidence to prove that Covington
caused or permitted Victim’s health to be endangered. “In
assessing a claim of insufficiency of the evidence, we review the
evidence and all inferences which may reasonably be drawn
from it in the light most favorable to the verdict of the jury.”
State v. Nielsen, 2014 UT 10, ¶ 30, 326 P.3d 645 (quotation
simplified). “And we will not reverse a jury verdict if we
conclude that some evidence exists from which a reasonable jury
could find that the elements of the crime had been proven
beyond a reasonable doubt.” State v. Maestas, 2012 UT 46, ¶ 177,
299 P.3d 892 (quotation simplified).
¶28 The third issue Covington raises is whether he was
prejudiced by the joinder of his trial with Wife’s. “We review for
an abuse of discretion a trial court’s decision to join or sever
charges against multiple defendants. The trial court’s decision as
to joinder or severance will be reversed only if a defendant’s
right to a fair trial has been impaired.” State v. Nay, 2017 UT App
3, ¶ 10, 391 P.3d 367 (quotation simplified). 4
4. Citing the Utah Code, Covington further claims that the “State
of Utah does not have subject matter jurisdiction” in this matter
because “the evidence does not establish that any conduct or any
result that is an element of the offense charged was undertaken,
occurred, or resulted within” Utah. See Utah Code Ann. § 76-1-
201(1) (LexisNexis 2017) (providing that a person may be
prosecuted for a crime in Utah if “the offense is committed either
wholly or partly within the state”). This assertion is based on
Covington’s argument that the State did not offer sufficient
evidence to establish that the manner in which Covington fed
Victim while the family was in Utah was potentially injurious to
Victim’s health or tied to conduct occurring in the State of Utah.
(continued…)
20180641-CA 10 2020 UT App 110State v. Covington
ANALYSIS
I. The Evidence is Sufficient.
¶29 Covington was charged with second-degree aggravated
abuse of a vulnerable adult. See Utah Code Ann. § 76-5-111(2),
(2)(a) (LexisNexis Supp. 2019) (stating that a caretaker who,
“[u]nder any circumstances likely to produce death or serious
physical injury,” “intentionally or knowingly” (1) “causes a
vulnerable adult to suffer serious physical injury” or (2) either
“causes or permits that adult’s person or health to be injured” or
“causes or permits a vulnerable adult to be placed in a situation
where the adult’s person or health is endangered[] is guilty of
the offense of aggravated abuse of a vulnerable adult” in the
second degree). Reflecting this statutory language, the jury
instructions stated that the jury could convict Covington if it
found, “unanimously and beyond a reasonable doubt” all the
following elements in either of these two sets of elements:
(a) 1. That on or about February 2014 in
Washington County, State of Utah, the
defendant, Travis A. Covington, as a
caretaker;
(…continued)
Because we conclude that there was sufficient evidence
presented at trial that the restrictive diet Covington and Wife
imposed on Victim injured him, and because the record indicates
that Covington imposed that diet on Victim while the family was
in Utah for the funeral, we conclude that sufficient evidence was
presented at trial to demonstrate by a preponderance of the
evidence that the charged conduct took place in Utah. See State v.
Mills, 2012 UT App 367, ¶ 32, 293 P.3d 1129 (providing that the
question of subject matter jurisdiction over an offense is one for
the court, not the jury, and must be established by a
preponderance of the evidence).
20180641-CA 11 2020 UT App 110State v. Covington
2. Under circumstances likely to produce
death or serious physical injury; did
3. Cause a disabled adult to suffer serious
physical injury; AND
4. That the defendant did so intentionally or
knowingly.
OR
(b) 1. That on or about February 2014 in
Washington County, State of Utah, the
defendant, Travis A. Covington, having the
care or custody of a disabled adult:
2. Under any circumstances likely to
produce death or serious physical injury;
did
3. Cause or permit that disabled adult’s
person or health to be injured; OR Cause or
permit that disabled adult to be placed in [a]
situation where the disabled adult’s person
or health was endangered; AND
4. That the defendant did so intentionally or
knowingly.
¶30 Thus, because part (a) of the instruction has one causation
scenario and part (b) of the instruction has two causation
scenarios, the jury could have found Covington guilty of second-
degree aggravated abuse of a vulnerable adult in any of three
circumstances: (1) for intentionally or knowingly causing Victim
to suffer serious physical injury under circumstances likely to
produce death or serious physical injury, (2) for intentionally or
knowingly causing or permitting Victim’s person or health to be
injured under any circumstances likely to produce death or
serious physical injury, or (3) for intentionally or knowingly
causing or permitting Victim to be placed in a situation where
his person or health was endangered under any circumstances
likely to produce death or serious physical injury. Our supreme
court “has stated that a jury must be unanimous on all elements
20180641-CA 12 2020 UT App 110State v. Covington
of a criminal charge for [a] conviction to stand.” State v. Hummel,
2017 UT 19, ¶ 32, 393 P.3d 314 (quotation simplified). And when
the State’s case is premised on more than one factual or legal
theory of the elements of the crime, we require sufficient
evidence be presented on each of the alternative elements. See
State v. Johnson, 821 P.2d 1150, 1159 (Utah 1991) (requiring
reversal “if the State’s case was premised on more than one
factual or legal theory of the elements of the crime and any one
of those theories is flawed or lacks the requisite evidentiary
foundation”). Thus, to sustain Covington’s conviction on appeal,
it is necessary for us to address each of the alternative sets of
elements identified in the statute and in the jury instruction to
determine whether sufficient evidence was presented at trial to
support “the essential elements of [the] charged crime.” See
Hummel, 2017 UT 19, ¶¶ 29–30.
¶31 When reviewing the sufficiency of the evidence, an
appellate court accords “high deference to the fact-finder at
trial.” State v. Hamilton, 2003 UT 22, ¶ 38, 70 P.3d 111; see also
State v. Nielsen, 2014 UT 10, ¶ 30, 326 P.3d 645 (stating that “[i]n
assessing a claim of insufficiency of the evidence,” the standard
of review is “highly deferential”). In considering sufficiency
claims, this court reviews “the evidence and all inferences which
may reasonably be drawn from it in the light most favorable to
the verdict of the jury.” State v. Maestas, 2012 UT 46, ¶ 302, 299
P.3d 892 (quotation simplified). “The jury, not the appellate
court, is the exclusive judge of . . . the weight to be given
particular evidence. Simply put, that [a] jury weighed the
evidence differently than [a defendant] believes it should have is
not enough to persuade us that the evidence . . . was
insufficient.” State v. Law, 2020 UT App 74, ¶ 26, 464 P.3d 1192(quotation simplified), petition for cert. filed, July 6, 2020 (No.
20200509). “And a jury is not obligated to believe the evidence
most favorable to the defendant, nor does the existence of
contradictory evidence or of conflicting inferences warrant
disturbing the jury’s verdict on appeal.” State v. Granados, 2019
UT App 158, ¶ 28, 451 P.3d 289 (quotation simplified). “Thus, we
will reverse a jury verdict only when the evidence,” viewed in
the light most favorable to the jury’s verdict, “is sufficiently
20180641-CA 13 2020 UT App 110State v. Covington
inconclusive or inherently improbable that reasonable minds
must have entertained a reasonable doubt that the defendant
committed the crime of which he or she was convicted.” Maestas,
2012 UT 46, ¶ 302 (quotation simplified).
¶32 Our sufficiency analysis follows the structure adopted by
the parties in this case. Thus, we first consider whether sufficient
evidence was presented at trial to prove Covington intentionally
or knowingly caused or permitted Victim to be injured (causing
Victim to suffer serious physical injury or causing or permitting
Victim’s person or health to be injured), and then we consider
whether sufficient evidence was presented at trial to prove
Covington intentionally or knowingly placed Victim in a
situation where his health was endangered (causing or
permitting Victim to be placed in a situation where his person or
health was endangered).
A. Covington Caused or Permitted Injury to Victim.
¶33 Covington challenges the sufficiency of the evidence
supporting the jury’s finding that he intentionally or knowingly
caused or permitted injury to Victim’s health. Specifically,
Covington argues that there was insufficient evidence presented
by the State at trial to prove beyond a reasonable doubt (1) he
intentionally or knowingly denied Victim nourishment and
fluids or (2) he at least knew that the diet formulated by Wife did
not provide Victim adequate nutrition. Instead, Covington
advances the theory that “gastrointestinal problems had been a
factor that had substantially contributed to [Victim’s]
malnutrition and dehydration” and “was the only hypothesis
that was supported by the evidence.” We disagree.
¶34 Ample evidence supported the finding that Covington
knowingly caused or permitted Victim to be injured by
restricting his food intake and failing to seek medical care. See
Utah Code Ann. § 76-2-103(2) (LexisNexis 2017) (“A person acts
knowingly, or with knowledge, with respect to a result of his
conduct when he is aware that his conduct is reasonably certain
to cause the result.”). Covington had been feeding Victim the
20180641-CA 14 2020 UT App 110State v. Covington
restrictive diet for ten years. During that time, several family
members told Covington that Victim was too thin and needed to
be fed more, but Covington did not heed their advice and even
went so far as to put a lock on Victim’s door to keep him from
eating when he craved food. Victim then collapsed in Quartzite
and required emergency medical care at LaPaz, and at that
point, Covington was told to increase Victim’s fluid and food
intake. Yet even after LaPaz, Covington continued to keep
Victim on the same diet. At LaPaz, Victim weighed eighty
pounds, and by the time he reached the urgent care facility in
Hurricane—after having continued the restrictive diet—Victim
weighed fifty-five pounds, having lost thirty-one percent of his
body weight in four weeks. As the State points out, “This
evidence establishes an observable cause and effect between
Victim’s post-LaPaz rapid weight loss and the diet on which
Covington kept him.” This conclusion is further buttressed by
the fact that after Victim was freed of the dietary restrictions
Covington imposed on him, he began to rapidly gain weight and
suffered no apparent allergic reactions to consuming an
unrestricted diet of nutritional food. Indeed, once Victim learned
that it was “okay to eat,” his weight increased to 123 pounds.
¶35 The evidence also supports the conclusion that Covington
injured Victim in more serious ways besides causing him to lose
weight. Treating Physician testified at length that Victim was in
danger of death due to malnutrition, dehydration, refeeding
syndrome, imbalanced electrolytes, liver malfunction, and organ
failure.
¶36 With regard to perhaps the most serious immediate threat
to his health that Victim faced, Covington argues on appeal that
“[t]he State presented no evidence that [Victim] ever exhibited
any metabolic disturbance associated with refeeding and the
theory that he was at risk of developing such symptoms was
based upon assumptions rather than evidence.” This assertion
lacks merit because it runs contrary to the evidence presented at
trial. In fact, the State presented abundant evidence, through the
testimony of Treating Physician, that Victim had refeeding
syndrome as indicated by several markers for the phenomenon,
20180641-CA 15 2020 UT App 110State v. Covington
most notably imbalanced electrolyte levels. In response,
Covington argues that it is significant that Victim never
exhibited “the onset of any of the metabolic disturbances that are
associated with refeeding syndrome,” even though he had been
“eating voraciously” preceding his admission to the Hospital.
From this evidence, Covington asserts that “[t]he conclusion that
[Victim] was actually at risk of developing dangerous metabolic
disturbances [from refeeding] was based upon assumption, not
evidence.” But Treating Physician explained that difficulties
with refeeding do not usually manifest themselves until three or
four days after the reintroduction of food. And within two days
after Aunt began providing Victim with additional food, Victim
was taken to the Hospital and remained under direct medical
care as food was reintroduced. Thus, the fact that Victim did not
face serious difficulties with refeeding is as much attributable to
the successful treatment he received at the Hospital as it is a sign
that he did not have the syndrome.
¶37 Furthermore, the evidence supported the jury’s
conclusion that Covington was aware that his conduct was
reasonably certain to result in injury to Victim’s health. There is
no question that Victim was severely emaciated—which the jury
saw by means of photographic evidence. Indeed, Victim’s
condition was so apparently alarming when he arrived at Aunt
and Uncle’s house that all the adults involved agreed that Victim
needed immediate medical attention. Once Victim arrived at the
urgent care facility in Hurricane, it became apparent that he
needed a higher level of care available at a larger medical center,
so Victim was transferred to the Hospital in St. George. Based on
this evidence, the jury could reasonably find Covington’s claim
of ignorance lacked credibility and that he was aware that
Victim was seriously ill and that his conduct was reasonably
certain to result in injury to Victim’s health.
¶38 Even if Covington had been able to produce credible
evidence that Victim had gastrointestinal issues, it would not
have been dispositive. “The existence of one or more alternate
reasonable hypotheses does not necessarily prevent the jury
from concluding that [a] defendant is guilty beyond a reasonable
20180641-CA 16 2020 UT App 110State v. Covington
doubt.” State v. Blubaugh, 904 P.2d 688, 695 (Utah Ct. App. 1995).
“The fact that we can identify an equally plausible alternative
inference is not nearly enough to set a verdict aside. On appeal,
the question presented is not whether some other (innocent)
inference might have been reasonable, but simply whether the
inference adopted by the jury was sustainable.” State v. Wall,
2020 UT App 36, ¶ 54, 460 P.3d 1058 (quotation simplified);
accord State v. Ashcraft, 2015 UT 5, ¶ 25, 349 P.3d 664. Provided
“that there is sufficient competent evidence as to each element of
the charge to enable a jury to find, beyond a reasonable doubt,
that the defendant committed the crime,” it is “within the
province of the jury to judge the credibility of the testimony,
assign weight to the evidence, and reject these alternate
hypotheses.” State v. Lyman, 966 P.2d 278, 281–82 (Utah Ct. App.
1998) (quotation simplified). Thus, Covington’s presentation of
an alternative theory does not establish an insufficiency of
evidence supporting his conviction under the State’s theory that
Covington’s imposition of the restrictive diet and subsequent
failure to seek medical care harmed Victim’s health.
¶39 In conclusion, the State presented abundant evidence that
Covington determined what Victim was allowed to eat, limited
how much he was allowed to eat, and failed to seek medical care
for Victim when he was aware that Victim was gravely ill. From
this evidence, the jury could easily conclude beyond a
reasonable doubt that Covington intentionally or knowingly
caused Victim’s injuries.
B. Covington Placed Victim in an Injurious Situation.
¶40 Under the third causation alternative, the State presented
sufficient evidence that Covington intentionally or knowingly
placed Victim in a situation that endangered his health when he
left Victim with Aunt and Uncle without alerting them to his
fragile medical condition or explaining the details of Victim’s
recent need for medical intervention. The record shows that
Aunt and Uncle, unaware of the risk posed by refeeding
syndrome, began to feed Victim as much food as he wanted
right after Covington had left Victim with the family. As
20180641-CA 17 2020 UT App 110State v. Covington
Treating Physician testified, see supra ¶ 20, if Aunt and Uncle had
continued to restrict the amount and type of food fed to Victim
as Covington instructed, Victim would have likely continued to
suffer from extreme malnutrition and face the possibility of
organ failure in a short time. On the other hand, by feeding him
an unrestricted diet of normal amounts of food, Victim ran the
risk of “sudden death” through refeeding syndrome. In either
case, by entrusting Victim’s care to Aunt and Uncle—people
without medical training and without sufficient explanation of
Victim’s medical history—Covington intentionally or knowingly
endangered Victim’s health.
¶41 Covington argues on appeal that the State was required to
prove that he knew about the specific risks associated with
refeeding syndrome. But the vulnerable adult abuse statute does
not require Covington to have precise knowledge of the
physiological consequences of his actions. Rather, it states that
second-degree aggravated abuse of a vulnerable adult occurs
when a person intentionally or knowingly “causes or permits a
vulnerable adult to be placed in a situation where the adult’s
person or health is endangered.” Utah Code Ann. § 76-5-111(2),
(2)(a) (LexisNexis Supp. 2019). And “[a] person acts knowingly,
or with knowledge, with respect to a result of his conduct when
he is aware that his conduct is reasonably certain to cause the
result.” Id. § 76-2-103(2) (2017). Thus, Covington did not need to
know about the precise medical means by which Victim might
suffer harm—be it malnutrition, organ failure, or refeeding
syndrome—but only that by entrusting his medically fragile son
to the care of Aunt and Uncle without informing them of
Victim’s recent weight loss, hospitalization, and health issues, he
was aware that he was endangering Victim’s health.
¶42 Based on the evidence, the jury could reasonably
conclude that Covington knew that Victim was in a critically
fragile medical state. Victim’s condition was obvious to Aunt,
Uncle, Cousin, and Leader. And Covington was aware that
Victim had recently collapsed in Quartzite due to hypoglycemia.
He was told on discharge from LaPaz to increase Victim’s food
and fluid intake. He had witnessed Victim’s weight drop
20180641-CA 18 2020 UT App 110State v. Covington
precipitously after the LaPaz incident. He testified that he had
noticed Victim had lost “quite a bit of weight,” a development he
described as “really alarming and concerning, and . . . one of the
reasons why [he] started calling [his] sisters” to discuss Victim’s
situation. Even if Covington was not aware of the intricacies of
refeeding syndrome, he knew that Victim was alarmingly and
disconcertingly emaciated. Instead of seeking medical care for
Victim, Covington chose to drop off Victim at Aunt and Uncle’s
house and recommend that they continue the restrictive diet that
had led to Victim’s deterioration. Covington remained silent in
relating details of Victim’s condition to Aunt and Uncle such
that they might be aware of an impending need to seek medical
intervention.
¶43 From this evidence, a jury could find beyond a reasonable
doubt that Covington knew that leaving Victim with Aunt and
Uncle in his fragile condition—recommending a continuation of
the status quo and without disclosing his recent decline—placed
Victim in a dangerous situation.
II. Covington Was Not Prejudiced by Joinder.
¶44 Lastly, Covington argues that he was prejudiced by the
joinder of his trial with that of Wife. 5 Specifically, Covington
5. Covington also raises a one-sentence constitutional argument
in this context: “Defendant contends that in a joint trial of
spouses the introduction [of] evidence of the alleged misconduct
of one spouse to the prejudice of the other creates an
impermissible conflict between one’s right to appear and defend
and his right to not facilitate the conviction of his own spouse.”
An issue is inadequately briefed if it provides “no meaningful
legal analysis” and instead relies on “only one or two sentences”
generally stating an argument and “broadly” concluding that an
appellant is “entitled to relief.” State v. Green, 2005 UT 9, ¶ 11,
108 P.3d 710 (quotation simplified). We determine that this issue
is inadequately briefed and decline to consider Covington’s
argument on this point.
20180641-CA 19 2020 UT App 110State v. Covington
argues that “the State launched an attack that was calculated to
make monsters of both [Covington and Wife] by introducing
testimony suggesting that [Victim] had been singled out and
treated differently than were the other Covington children . . .
[and] eliciting testimony concerning [Wife’s] alleged
callousness.”
¶45 “The trial court’s decision as to joinder or severance will
be reversed only if a defendant’s right to a fair trial has been
impaired.” State v. Nay, 2017 UT App 3, ¶ 10, 391 P.3d 367(quotation simplified). And “any error in denying severance will
be deemed harmless unless [the] defendant can establish a
reasonable likelihood of a more favorable outcome if the court
had granted a severance.” State v. Calliham, 2002 UT 86, ¶ 34, 55
P.3d 573 (quotation simplified). Prejudice may arise in a joinder
context when evidence admissible against one defendant—but
inadmissible against the other if the proceedings were
separate—is admitted. See State v. Velarde, 734 P.2d 440, 445
(Utah 1986) (conducting a prejudice analysis by considering
“evidence that might have been different or unavailable at a
separate trial”).
¶46 Covington’s claim fails because he cannot show prejudice
resulting from the joinder. He broadly asserts that evidence of
Wife’s treatment of Victim “was used to tar both defendants
with the same brush,” but he makes no effort to explain how
he was tarnished by evidence of Wife’s mistreatment of
Victim. The State presented evidence that Wife engaged in
verbally abusive behavior toward Victim, but it did not attempt
to blur the distinction between Covington and Wife in so doing.
Indeed, the record contains only one instance where the
State mentioned that “[Covington] and [Wife] would call
[Victim] names.”
¶47 Furthermore, the most harmful evidence presented
regarding Covington’s treatment of Victim did not relate to any
verbal abuse but to the physical harm of imposing an inadequate
diet on Victim and failing to seek appropriate medical care when
it was obvious that Victim’s health was rapidly deteriorating.
20180641-CA 20 2020 UT App 110State v. Covington
We fail to see how Covington was prejudiced by the joinder of
the trials given the abundant evidence that Covington directly
endangered Victim’s health and placed him in an injurious
situation.
CONCLUSION
¶48 We conclude that there was sufficient evidence for the
jury to find beyond a reasonable doubt that Covington
intentionally or knowingly caused or permitted Victim to be
harmed and that Covington intentionally or knowingly placed
Victim in a situation where his health would be endangered. We
further conclude that Covington was not prejudiced by the
joinder of his trial with that of Wife.
¶49 Affirmed.
20180641-CA 21 2020 UT App 110