v. Dyer , 2019 COA 161 ( 2019 )

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.
SUMMARY
October 24, 2019
2019COA161
No. 17CA0558, People v. Dyer — Constitutional Law — Fourth
Amendment — Searches and Seizures — Warrantless Search;
Dependency and Neglect — Action Upon Report of Intrafamilial,
Institutional, or Third-party Abuse
A division of the court of appeals considers whether
Department of Human Services caseworkers are subject to the
Fourth Amendment. The division concludes that they are. The
division further concludes that the caseworkers’ warrantless entry
in this case was illegal and required suppression of all evidence
obtained as a direct result of that illegal entry, notwithstanding any
exceptions to the Fourth Amendment’s warrant requirement and
the exclusionary rule that were not raised and ruled upon by the
trial court. Because the trial court failed to suppress this evidence,
the division reverses and remands for a new trial.
COLORADO COURT OF APPEALS 2019COA161
Court of Appeals No. 17CA0558
Larimer County District Court No. 14CR1120
Honorable Gregory M. Lammons, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Leah Sue Dyer,
Defendant-Appellant.
JUDGMENT REVERSED AND CASE
REMANDED WITH DIRECTIONS
Division II
Opinion by JUDGE PAWAR
Dailey and Terry, JJ., concur
Announced October 24, 2019
Philip J. Weiser, Attorney General, Frank R. Lawson, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee
Matthew Fredrickson, Alternate Defense Counsel, Lakewood, Colorado, for
Defendant-Appellant
¶1 Department of Human Services (DHS) caseworkers entered the
home of defendant, Leah Sue Dyer, without a warrant. We hold, as
an issue of first impression in Colorado, that DHS caseworkers are
subject to the Fourth Amendment. We further hold that the
caseworkers’ warrantless entry in this case was illegal, and
therefore the trial court was required to suppress all evidence
obtained as a direct result. Because the trial court failed to
suppress this evidence, we reverse Dyer’s conviction of first degree
child abuse resulting in serious bodily injury and remand for a new
trial.
I. Background
¶2 Dyer’s mother called the DHS and alleged that Dyer was
neglecting her seven-year-old daughter, S.D., who suffered from a
seizure disorder. DHS caseworkers tried to contact Dyer and her
daughter at their home but were unsuccessful. The caseworkers
then sought and received an order to investigate under section 19-
3-308(3)(b), C.R.S. 2019. They did not obtain a search warrant
under section 19-1-112(1), C.R.S. 2019.
¶3 Over the next several days, the caseworkers, accompanied by
police officers, repeatedly tried to contact Dyer and her daughter at
1
their home, again without success. On the third day, police officers
went to Dyer’s home without the caseworkers. They knocked on the
door and Dyer answered. The officers informed Dyer of the order to
investigate. Though the order did not authorize their entry without
Dyer’s consent, they told her that they needed to come inside to
check on S.D. When her initial objections did not cause law
enforcement to leave, Dyer eventually stepped aside and the officers
entered the home.
¶4 Once inside, the officers inspected the home, spoke to both
Dyer and her husband, and contacted the caseworkers to let them
know that they had gained entry to the home. The officers also
observed S.D. experience what appeared to be a seizure and
requested an ambulance.
¶5 After the apparent seizure ended, the caseworkers and
paramedics arrived at and entered the home. The caseworkers
inspected the home and talked to Dyer and her husband while the
paramedics tended to S.D. Without Dyer’s or her husband’s
permission, the paramedics loaded S.D. into an ambulance and
took her to the hospital. Dyer requested but was not permitted to
ride in the ambulance with her daughter, so she and her husband
2
drove themselves. The caseworkers and police officers also drove to
the hospital.
¶6 At the hospital, S.D. was taken to the emergency department,
and Dyer was again denied access to her. Before she was allowed
to see her daughter, 1 a police officer asked Dyer if she would
participate in an interview. Dyer agreed to the interview, and it was
conducted by a police officer and a caseworker in a makeshift
private room at the hospital. Months later, Dyer gave another
statement to police about many of the same topics covered in the
hospital interview.
¶7 The prosecution charged Dyer and her husband with child
abuse and, over Dyer’s objection, jointly tried them. The
prosecution alleged that Dyer and her husband had engaged in a
pattern of conduct that allowed S.D.’s condition to deteriorate to a
point where she was severely underweight, had stopped talking and
feeding herself, and was unable to go to the bathroom by herself.
1 The evidence was conflicting as to who restricted Dyer’s access to
S.D. at the hospital. The trial court was not, however, persuaded
that it was the police or caseworkers who were responsible for this.
3
¶8 Before trial, Dyer moved to suppress much of the evidence
obtained by police, caseworkers, and paramedics on the day they
came to her home and took S.D. to the hospital. Dyer argued that
the officers, caseworkers, and paramedics had entered her home
illegally. She sought to suppress all evidence obtained as a direct
result of that illegal entry. Alternatively, she argued that all of her
statements to officers, caseworkers, and doctors that day should be
suppressed because they were unwarned custodial statements
obtained in violation of Miranda v. Arizona, 384 U.S. 436 (1966),
and were also involuntary.
¶9 The trial court ruled that the officers’ initial entry into Dyer’s
home was illegal and therefore suppressed the officers’ observations
from inside the home. The court next found, however, that the
caseworkers’ and paramedics’ entries were legal and admitted their
observations from inside the home. The court also admitted Dyer’s
interview with the officer and caseworker at the hospital, as well as
her later police interview, holding that these statements were
noncustodial and voluntary.
4
¶ 10 The jury found Dyer guilty of child abuse. The trial court
entered a judgment of conviction and sentenced her to fifteen years
in the custody of the Department of Corrections.
¶ 11 Dyer appeals. She argues that the trial court erred by (1)
failing to suppress the caseworkers’ and paramedics’ observations
from inside her home, and her interview at the hospital; (2) denying
her motion to sever her case from her husband’s; (3) failing to give
several jury instructions; and (4) admitting other evidence.
¶ 12 We agree with Dyer’s first contention that the trial court erred
by failing to suppress the caseworkers’ and paramedics’
observations from inside her home and the statement she gave at
the hospital to the authorities. We also conclude that this error
requires reversal. We therefore address her additional alleged
errors only to the extent that they are likely to recur on retrial.
II. Officers’ and Caseworkers’ Illegal Entries Require Reversal
5
¶ 13 Dyer argues that the trial court erred by failing to suppress
the caseworkers’ and paramedics’ observations from inside her
home 2 and the statements she made at the hospital. We agree.
¶ 14 Reviewing a trial court’s suppression ruling presents a mixed
question of fact and law. See People v. Hyde, 2017 CO 24, ¶ 9. We
defer to the trial court’s factual findings if they are supported by the
record and review the court’s legal conclusions de novo. Id.A. Governing Law
¶ 15 The Fourth Amendment provides that individuals shall be free
from unreasonable searches and seizures. U.S. Const. amend. IV.
A warrantless search of a person’s home is presumptively
unreasonable and therefore illegal. See People v. Fuerst, 2013 CO
28, ¶ 11. The prosecution can overcome this presumption only by
establishing that the search falls within a recognized exception to
the warrant requirement. Id.¶ 16 Although the Fourth Amendment outlaws unreasonable
searches and seizures, nothing in the text of the Fourth
2 For purposes of our analysis, the caseworkers’ and paramedics’
“observations” from inside Dyer’s home means all the information
they gathered from inside. This includes not only what they saw,
but also all statements made to them.
6
Amendment requires suppression of illegally obtained evidence.
Instead, the exclusionary rule, a judicially created evidentiary rule,
gives effect to the Fourth Amendment by requiring suppression of
any evidence obtained as a direct result of an illegal search or
seizure. See People v. Kazmierski, 25 P.3d 1207, 1213 (Colo. 2001);
People v. Rodriguez, 945 P.2d 1351, 1363 (Colo. 1997). Whether
evidence was obtained as a direct result of an illegal search or
seizure depends on whether the evidence was obtained by exploiting
the illegality or instead by “means sufficiently distinguishable to be
purged of the primary taint” of the illegality. Rodriguez, 945 P.2d at
1363-64 (quoting Wong Sun v. United States, 371 U.S. 471, 488
(1963)).
¶ 17 If a trial court erroneously admits evidence in violation of the
Fourth Amendment and the exclusionary rule, we must reverse
unless the error was harmless beyond a reasonable doubt. See
People v. Morehead, 2015 COA 131, ¶ 34, aff’d in part and rev’d in
part on other grounds, 2019 CO 48. This standard compels the
prosecution to prove that the error does not require reversal. Id. at
¶ 35.
B. The Caseworkers’ Entry into Dyer’s House Was Illegal
7
¶ 18 Neither party disputes that the officers’ entry was illegal
because it was warrantless and without consent. The caseworkers’
entry was also warrantless and without consent. Despite this fact,
the trial court ruled that the caseworkers’ entry was legal because
they were not acting as agents of the police. This ruling was error.
¶ 19 Whether the caseworkers were acting as agents of the police is
irrelevant for Fourth Amendment purposes. Even if they were not
acting as agents of the police, the caseworkers were governmental
officials and were therefore subject to the Fourth Amendment’s
restrictions.
¶ 20 Although the Fourth Amendment and the exclusionary rule
are most often applied to the actions of police officers, the United
States Supreme Court has made clear that “[t]he basic purpose of
[the Fourth] Amendment . . . is to safeguard the privacy and
security of individuals against arbitrary invasions by governmental
officials.” New Jersey v. T.L.O., 469 U.S. 325, 335 (1985) (emphasis
added) (quoting Camara v. Mun. Court, 387 U.S. 523, 528 (1967)).
The Fourth Amendment therefore applies to any governmental
official. Whether the governmental official is a police officer
conducting a criminal investigation or a caseworker conducting a
8
civil child welfare investigation does not matter. See Dubbs v. Head
Start, Inc., 336 F.3d 1194, 1205 (10th Cir. 2003) (“[T]he defendants’
contention that the Fourth Amendment does not apply in the
‘noncriminal’ and ‘noninvestigatory’ context is without
foundation.”).
¶ 21 As the Tenth Circuit has put it, “[t]he Fourth Amendment
protects the right of the people to be ‘secure in their persons’ from
government intrusion, whether the threat to privacy arises from a
policeman or a Head Start administrator. There is no ‘social
worker’ exception to the Fourth Amendment.” Id. Other courts
agree. See Gates v. Tex. Dep’t of Protective & Regulatory Servs., 537
F.3d 404, 420 (5th Cir. 2008) (“[I]t is well established in this circuit
that the Fourth Amendment regulates social workers’ civil
investigations.”); Doe v. Heck, 327 F.3d 492, 509 (7th Cir. 2003)
(“[T]he strictures of the Fourth Amendment apply to child welfare
workers, as well as all other governmental employees.”); State in
Interest of A.R., 937 P.2d 1037, 1040 (Utah Ct. App. 1997) (“[T]he
Fourth Amendment’s prohibition on unreasonable searches and
seizures applies whenever an investigator, be it a police officer, a
[Division of Child and Family Services] employee, or any other agent
9
of the state, responds to an alleged instance of child abuse, neglect,
or dependency.”), aff’d sub nom. State in Interest of A.R. v. C.R., 982
P.2d 73 (Utah 1999); Milewski v. Town of Dover, 899 N.W.2d 303,
318 (Wis. 2017) (Fourth Amendment applied to a tax assessor’s
entry into a home to view its interior because when “a government
agent occupies private property for the purpose of obtaining
information, he is conducting a search within the meaning of the
Fourth Amendment”).
¶ 22 The caseworkers here were governmental officials who entered
Dyer’s home without a warrant or consent. The record does not
indicate that their entry was justified by any recognized exception to
the warrant requirement. Their warrantless entry was therefore
illegal under the Fourth Amendment.
¶ 23 We are not persuaded otherwise by the fact that the
caseworkers had obtained an order to investigate under section 19-
3-308(3)(b). It is true that this order, supported by probable cause,
required Dyer and her husband to “cooperate in the investigation of
possible child neglect or abuse” by producing S.D. for an interview
or inspection and allowing an inspection of their home. But, unlike
a search warrant, the order to investigate did not authorize the
10
caseworkers to enter the home without consent. If the Dyers
refused to comply with the order, the caseworkers’ remedy was
initiating contempt proceedings, not entering the home without
consent. See § 19-3-308(3)(b).
¶ 24 Only by obtaining a search warrant under a separate provision
of the Children’s Code could the caseworkers have legally entered
Dyer’s home without consent. Section 19-1-112(1) allows the
juvenile court to issue a search warrant for the recovery of a child
believed to be neglected. Such a warrant must be supported by
probable cause to believe that the child is neglected and a
statement of “the reasons why it is necessary to proceed pursuant
to this section.” § 19-1-112(2)(e), (3).
¶ 25 But the caseworkers did not obtain a warrant under section
19-1-112. They obtained only an order to investigate under section
19-3-308(3)(b). And because this order to investigate did not
authorize them to enter Dyer’s home without consent, their entry
was illegal under the Fourth Amendment.
C. Illegal Entries Required Suppression of Caseworkers’
Observations, Paramedics’ Observations, and Hospital Interview
11
¶ 26 As discussed above, evidence obtained by exploiting a Fourth
Amendment violation must be suppressed. See Rodriguez, 945 P.2d
at 1363-64. On the other hand, “[i]f the connection between the
evidence and the illegality is ‘so attenuated as to dissipate the taint,
the evidence will not be suppressed.’” Id. at 1364 (quoting Wong
Sun, 371 U.S. at 487).
¶ 27 We conclude that the caseworkers’ observations, the
paramedics’ observations, and Dyer’s statements during the
hospital interview were all obtained by exploiting the caseworkers’
and police officers’ illegal entries into Dyer’s home. The
exclusionary rule therefore required suppression of all of this
evidence.
1. Caseworkers’ Observations were Inadmissible
¶ 28 There is no question that the caseworkers’ observations from
inside the home were a direct result of their illegal entry. See
Rodriguez, 945 P.2d at 1363-64. The prosecution argues that,
under People in Interest of A.E.L., 181 P.3d 1186, 1192 (Colo. App.
2008), these observations were nevertheless admissible because the
exclusionary rule does not apply given the circumstances of this
case. This follows, the prosecution asserts, because the
12
caseworkers were conducting a child welfare investigation pursuant
to a civil dependency and neglect case, not a criminal investigation.
We conclude that A.E.L. is inapposite and disagree.
¶ 29 In A.E.L., another division of this court held that the
exclusionary rule does not require suppression of evidence obtained
as a direct result of a Fourth Amendment violation in a civil
dependency and neglect proceeding. Id. The division explained
that the exclusionary rule is intended to deter illegal searches and
seizures by suppressing their evidentiary fruit. Id. at 1191. But the
division concluded the deterrent benefits of applying the
exclusionary rule in a dependency and neglect case were
outweighed by the danger of leaving a neglected child in an unsafe
environment. Id. at 1192.
¶ 30 A.E.L. does not apply here because this is a criminal case.
There is no danger that applying the exclusionary rule in this
criminal case will cause a neglected child to be left in an unsafe
environment. Instead, the only danger in applying the exclusionary
rule here is that Dyer might be acquitted of child abuse. The
prosecution cites no authority, and we are aware of none, for the
13
proposition that the exclusionary rule does not require suppression
under these circumstances.
2. Paramedics’ Observations were Inadmissible
¶ 31 The trial court ruled that the paramedics’ observations from
inside Dyer’s home were admissible because the paramedics were
not acting as agents of the police. But the trial court did not
address whether the paramedics’ observations should have been
suppressed regardless of whether they were acting as agents of the
police. Their observations were, in our view, a direct result of law
enforcement’s illegal entry into Dyer’s house. The paramedics were,
after all, summoned to the scene by the police, based on
observations made by the police during their illegal entry into the
home. The paramedics’ observations inside the home were
therefore a direct result of the officers’ illegal entry and should have
been suppressed.
3. Dyer’s Interview at the Hospital was Inadmissible
¶ 32 Dyer also contends that the trial court erred by failing to
suppress her interview at the hospital with the police officer and
caseworker. Specifically, she argues that the court erred by ruling
14
that her statements were not the direct result of the officers’ and
caseworkers’ illegal entries into her home. We agree.3
¶ 33 The trial court found that Dyer’s hospital interview was not
obtained by exploiting any illegal entry into her home because (1)
the illegality “in this instance” was, in the court’s view, “minor”; (2)
no statements had been obtained in violation of Miranda; (3) the
Dyers were free to go to the hospital — or not — as they pleased;
and (4) “there [was] a break in time and a change of location
between the unlawful entry and [the] later statements made at the
hospital.”
¶ 34 We disagree with the court’s analysis in several regards. First,
the court concluded that the illegality was “minor” because “[i]f the
3 Dyer also contends that her hospital interview statements were
inadmissible because they were either (1) custodial and therefore
inadmissible under Miranda v. Arizona, 384 U.S. 436 (1966); or (2)
involuntary. We express no opinion about these contentions
because we conclude the statements were inadmissible as fruit of
the illegal entries. If the trial court has to rule on whether these
statements were custodial or voluntary on remand, it should do so
based on the totality of the circumstances, which include the
caseworkers’ and officers’ illegal entries into Dyer’s home. See
Marko v. People, 2018 CO 97, ¶ 36 (custody is evaluated based on
the totality of the circumstances); People v. Valdez, 969 P.2d 208,
211 (Colo. 1998) (voluntariness is evaluated based on the totality of
the circumstances).
15
Officers had waited for the DHS caseworkers prior to entry and
actually performed security for them, [the police] would have
rightfully been inside the home.” But, as discussed above, the
caseworkers had no authority to enter the home either.
Accordingly, the caseworkers’ presence would have done nothing to
cure the officers’ illegal entry. In our view, the illegality was
therefore not “minor.”
¶ 35 Second, the absence of a Miranda violation is of little
consequence when evaluating whether evidence was obtained as the
direct result of an illegal search. If an illegal search reveals
evidence and the defendant is then questioned about that evidence,
an intervening Miranda warning will not dissipate the taint of the
illegal search. See Perez v. People, 231 P.3d 957, 964 (Colo. 2010).
Regardless of whether government officials comply with Miranda,
where a defendant elects to make statements to law enforcement
following an illegal search, the defendant often does so “solely
because of the illegal search — a defendant sees that an officer has
obtained the incriminating evidence and then speaks.” Id.; see 6
Wayne R. LaFave, Search and Seizure § 11.4(c), Westlaw (5th ed.
database updated Oct. 2018) (“[W]here the defendant was present
16
when incriminating evidence was found in an illegal search . . . it is
apparent that there has been an ‘exploitation of that illegality’ when
the police subsequently question the defendant about that evidence
or the crime to which it relates. This is because ‘the realization that
the “cat is out of the bag” plays a significant role in encouraging the
suspect to speak.’”) (citations omitted). This result is especially
likely where the statements made after the illegal search relate
directly to the evidence discovered during the search.
¶ 36 The potential causal link between illegally obtained evidence
and later statements brings us to the third problem with the trial
court’s analysis: it failed to account for the fact that Dyer’s
interview statements were directly related to what the officers and
caseworkers illegally observed in her home. At the beginning of the
interview, the officer said she was assisting the officer who had
been at Dyer’s house earlier with the “investigation.” The
interviewing officer continued, “[T]he reason that we’re here is
because there was some concerns about [S.D.], when officers got to
the house and when [the caseworkers] came to the house to check
on her.” Dyer then asked for clarification about the concerns,
17
asking if they were concerned “because she seized in front of them?”
The officer replied, “[T]hat and a couple other things.”
¶ 37 During the interview, the officer and caseworker asked about
S.D.’s condition, how she came to be in that condition, and what
living conditions were like in the Dyers’ house. The officer
repeatedly asked questions and made statements related to what
the officers and caseworkers had observed in Dyer’s home —
matters that they were aware of only because the officers and
caseworkers had illegally entered Dyer’s home. Under these
circumstances, we conclude that the officer and caseworker elicited
Dyer’s interview statements by exploiting the illegal entries into her
home. These statements were therefore the direct result of the
illegal entries and should have been suppressed.
4. Inevitable Discovery
¶ 38 The prosecution argues that the caseworkers’ and paramedics’
observations and Dyer’s statements at the hospital were
nevertheless admissible under the inevitable discovery exception to
the application of the exclusionary rule. This exception allows
admission of evidence obtained in violation of the Fourth
Amendment “if the prosecution can establish that the information
18
ultimately or inevitably would have been discovered by lawful
means.” People v. Diaz, 53 P.3d 1171, 1176 (Colo. 2002). The
prosecution must affirmatively show that the lawful means of
discovering this evidence was already initiated when the evidence
was obtained illegally. See People v. Syrie, 101 P.3d 219, 223 (Colo.
2004).
¶ 39 The prosecution did not raise the doctrine of inevitable
discovery in its written response to Dyer’s motions to suppress or
during the suppression hearing. Instead, the prosecution first
raised this issue in its answer brief on appeal. This does not bar
our review; an appellate court may affirm a lower court’s decision
on any ground supported by the record, whether relied upon or
even considered by the trial court. See People v. Aarness, 150 P.3d
1271, 1277 (Colo. 2006). But we are unable to resolve the
inevitable discovery issue here. The record does not clearly
establish that a lawful and inevitable means of discovering the
evidence was in progress at the time of the illegal entries. We
therefore cannot apply this doctrine without the benefit of
additional factual findings.
19
¶ 40 The parties do not dispute that the caseworkers were pursuing
an additional court order when they learned that the officers had
gained entry to Dyer’s home. Although the trial court made no
factual findings about this order, the record suggests that it was a
search warrant. But there is also evidence in the record suggesting
that the caseworkers were unlikely to obtain the search warrant.
One caseworker’s notes stated that the county attorney working on
the warrant application spoke to the magistrate, who “does not
think that we will be able to obtain the search warrant.” Based on
this record, we cannot say that, as a matter of law, the inevitable
discovery doctrine rendered admissible the caseworkers’ or
paramedics’ observations, or Dyer’s statements at the hospital.
¶ 41 Furthermore, on this record, we cannot simply remand the
case to the trial court for the limited purpose of resolving this
inevitable discovery issue. It is true that doing so could potentially
avoid the necessity of a new trial, saving the parties, the State, and
society great cost. See United States v. Mechanik, 475 U.S. 66, 72
(1986) (The reversal of a conviction “forces jurors, witnesses, courts,
the prosecution, and the defendants to expend further time, energy,
and other resources to repeat a trial that has already once taken
20
place[, and] victims may be asked to relive their disturbing
experiences.”). But we think it is inappropriate to order a limited
remand to resolve an issue that was raised for the first time on
appeal because it would undermine the purpose of the rules
requiring parties to preserve arguments for appellate review. See
Lawmaster v. Ward, 125 F.3d 1341, 1352 (10th Cir. 1997) (“[W]e
refuse to remand to the district court a question that should have
been raised in the first instance; doing so would subvert the policies
the general rule is in place to protect, including the doctrines of
finality and conservation of judicial resources.”).
¶ 42 We reach a similar conclusion about the prosecution’s
argument on appeal that some of this evidence was admissible
under the medical emergency exception to the warrant requirement.
Like inevitable discovery, this issue was not raised in the trial court
and the trial court’s factual findings are insufficient for us to resolve
it now.
D. The Court’s Error Requires Reversal
¶ 43 It is the prosecution’s burden to prove that the court’s failure
to suppress the caseworkers’ and paramedics’ observations from
inside the home and Dyer’s statements at the hospital was
21
harmless beyond a reasonable doubt. See Morehead, ¶ 34.
Because the prosecution has failed to present any argument that
admission of the evidence that should have been suppressed was
harmless beyond a reasonable doubt, it has failed to meet its
burden, requiring us to reverse Dyer’s conviction and remand for
retrial.
¶ 44 On remand, the trial court is bound by our determinations
that the caseworkers were subject to the Fourth Amendment and
that their entry was illegal under the Fourth Amendment. The trial
court is also bound by our determination that, based on the
arguments and evidence presented at the prior suppression
hearing, the exclusionary rule required suppression of the
caseworkers’ and paramedics’ observations and Dyer’s hospital
interview.
¶ 45 That said, on remand the prosecution may present arguments
for the admission of otherwise suppressible evidence that it failed to
raise in the first proceeding. Id. at ¶ 19. Given that the
prosecution raised inevitable discovery on appeal, it is likely that
the prosecution will raise it on remand as well. Other issues, such
as the medical emergency exception, may also be raised. If the
22
prosecution raises these issues and the court, in its discretion,
considers them, the trial court should make factual findings and
conclusions of law with respect to the matters in the record as well
as any additional evidence it deems relevant.
III. Other Issues
¶ 46 Dyer raises other issues on appeal. Because of the manner in
which we have resolved this appeal, we address only those issues
that are likely to recur at a new trial, and only for the purpose of
giving the trial court guidance in conducting the new trial.
A. Alleged Seizure of S.D. from Dyer’s Home
¶ 47 Dyer argues that taking S.D. from her home to the hospital
without Dyer’s consent constituted an illegal seizure in violation of
the Fourth Amendment and requires suppression of all evidence
obtained as a direct result. Although Dyer raised this issue at the
suppression hearing, the trial court neither made factual findings
about it nor ruled on the ultimate issue. We therefore do not
address it. But nothing in this opinion precludes the parties from
raising this issue on remand.
B. Alleged Instructional Error
23
¶ 48 Dyer next argues that the trial court committed two
instructional errors. It is the trial court’s duty to accurately
instruct the jury on all matters of law relevant to the case. See
Riley v. People, 266 P.3d 1089, 1092 (Colo. 2011). We review the
instructions de novo to determine whether the trial court did so. Id.
1. A Medical Neglect Instruction was Unnecessary
¶ 49 Dyer first argues that she was entitled to an instruction
distinguishing medical neglect from child abuse. We disagree.
¶ 50 “[A] witness may not testify that a particular legal standard
has or has not been met.” People v. Beilke, 232 P.3d 146, 152
(Colo. App. 2009). As relevant here, this means that no witness
could testify that Dyer committed the offense of child abuse or that
her conduct satisfied a necessary element of that offense.
¶ 51 Several medical experts testified at trial that S.D. was
neglected or medically neglected. According to Dyer, this testimony
was akin to a legal opinion that she had committed child abuse,
and she was therefore entitled to an instruction differentiating
medical neglect and child abuse. We are not persuaded.
¶ 52 There is no danger that the jury would have understood
testimony that S.D. was medically neglected as a legal opinion that
24
Dyer committed child abuse. The instructions, in accordance with
the child abuse statute, section 18-6-401, C.R.S. 2019, identified
the elements of child abuse as knowingly or recklessly “engag[ing]
in a continued pattern of conduct that result[s] in malnourishment,
lack of proper medical care, cruel punishment, mistreatment, or an
accumulation of injuries that ultimately result[s] in serious bodily
injury to a child.” The terms “medical neglect” and “neglect” did not
appear in the instructions defining child abuse. Nor does the child
abuse statute include these terms. We therefore conclude that the
trial court properly refused to give the requested instruction.
2. A Modified Unanimity Instruction was Unnecessary
¶ 53 We also disagree with Dyer’s argument that the trial court
erred by failing to give a modified unanimity instruction that would
have required the jurors to agree on the specific acts or omissions
she committed.
¶ 54 Section 16-10-108, C.R.S. 2019, requires unanimous jury
verdicts. In general, this requirement means that each juror must
agree that each element of the crime charged has been proved
beyond a reasonable doubt. See People v. Wester-Gravelle, 2018
COA 89M, ¶ 21 (cert. granted Sept. 9, 2019). Even so, jurors need
25
not agree about the evidence or theory by which a particular
element is established. Id.¶ 55 Dyer’s argument rests on an exception to this general rule. If
a defendant is charged with a single offense, and the prosecution
presents evidence of multiple alternative, discrete acts that could
each constitute the offense, and there is a reasonable likelihood
that jurors may disagree about which alternative act the defendant
committed, the jury must agree that the defendant committed the
same act or acts. Id. at ¶ 22. This exception does not apply,
however, when the prosecution charges a continuing course of
conduct. Id. at ¶ 24. When the prosecution charges a continuing
course of conduct, the jurors need only agree that the defendant
engaged in a continuing course of conduct for which he or she is
criminally liable — they need not agree on the acts constituting that
course of conduct. Id.
¶ 56 Here, the prosecution alleged that Dyer committed child abuse
by engaging in a continuing course of conduct. Consequently, the
jurors did not need to agree on the acts or omissions constituting
the course of conduct, and the trial court properly declined to give
Dyer’s requested instruction.
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C. Additional Evidentiary Error
¶ 57 Dyer also challenges several of the trial court’s evidentiary
rulings. We review these arguments for an abuse of discretion. See
People v. Brown, 2014 COA 155M-2, ¶ 5.
¶ 58 First, Dyer argues that the court erred by admitting evidence
of the dependency and neglect proceeding in violation of section 19-
3-207(2), C.R.S. 2019. The statute provides that “[n]o professional
shall be examined in any criminal case without the consent of the
respondent as to statements made pursuant to compliance with
court treatment orders, including protective orders, entered under
[the dependency and neglect statutes].”
¶ 59 We question whether, as the prosecution argues in its answer
brief, any error in admitting evidence in violation of this statute was
invited by Dyer. Nevertheless, on remand the trial court should
ensure that it complies with this statute.
¶ 60 Second, Dyer argues that the trial court erred by admitting
evidence of S.D.’s improvement in foster care, after the alleged
abuse in this case ended. She argues that this evidence was
irrelevant and unfairly prejudicial. She also argues that some of it
was unqualified expert testimony. We disagree.
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¶ 61 Evidence that S.D. improved after being placed in foster care
was indirect and circumstantial evidence that her health and
developmental problems were caused by Dyer and her husband. It
was therefore relevant. See CRE 401 (Evidence is relevant if it has
“any tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or
less probable than it would be without the evidence.”).
¶ 62 We further conclude that it was not unduly prejudicial or
inflammatory. The evidence merely juxtaposed S.D.’s condition
while in Dyer’s care with her condition in foster care.
¶ 63 Dyer also argues that lay witnesses offered expert testimony
about “technical improvements” S.D. made after being placed in
foster care. According to Dyer, this testimony was unqualified
expert testimony and was therefore inadmissible. See CRE 701 (lay
witness testimony must not be based on “scientific, technical, or
other specialized knowledge within the scope of Rule 702); CRE 702
(witness must be qualified as an expert to offer technical or
specialized knowledge). But she does not identify these technical
improvements, nor does she further explain why testimony on them
was expert testimony rather than lay opinion testimony. We
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therefore reject this argument. See People v. Durapau, 280 P.3d 42,
49 (Colo. App. 2011) (declining to address bare and conclusory
assertions without supporting argument and authority).
D. Severance
¶ 64 Dyer also argues that the trial court erred by denying her
motion to sever her case from her husband’s and, instead, trying
the cases together. We do not address this issue because if it
recurs at all, it will likely recur under different circumstances.
IV. Conclusion
¶ 65 The judgment of conviction is reversed, and the case is
remanded for a new trial consistent with the views expressed in this
opinion.
JUDGE DAILEY and JUDGE TERRY concur.
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