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People v. Weinreich9/12/2005
JUDGMENT AFFIRMED
EN BANC
JUSTICE COATS dissents, and JUSTICE KOURLIS and JUSTICE RICE join in the dissent.
We granted certiorari in this case to review the court of appeals' decision in People v. Weinreich, 98 P.3d 920 (Colo. App. 2004). This case involves a traffic accident that occurred when defendant Weinreich was driving with his twin daughters in his lap and attempted to pass a vehicle in front of him. One of the children, Jade, died in the accident; the other, Blake, suffered injuries.
The jury convicted Weinrich of multiple crimes, including reckless child abuse resulting in death under section 18-6-401(1)(a) and (7)(a), C.R.S. (2004). However, the trial court did not deliver to the jury an instruction that conformed to the statute in existence on the day of the accident. Instead, the trial court instructed the jury using an obsolete version of a jury instruction based on statutory language which we expressly disapproved in People v. Hoehl, 193 Colo. 557, 560, 568 P.2d 484, 486 (1977). We hold that the trial court committed plain and reversible error by failing to give an instruction that substantially conformed to the existing reckless child abuse resulting in death statute under which the prosecution charged Weinreich.
I.
Weinreich was driving his Subaru on a two-lane undivided road with his two six-year old twin daughters, Jade and Blake, in his lap unrestrained. An SUV hauling a trailer was driving slowly in front of him. Weinreich attempted to pass the SUV on the left, and at the same time, the SUV attempted to turn left. Weinreich's car made contact with the SUV and then rolled numerous times. Jade was killed; Blake and Weinreich suffered injuries.
A test of Weinreich's blood alcohol level approximately an hour and a half after the accident measured .086. Police found an empty beer can and an empty single-serving vodka bottle in the back seat of the car. Witnesses testified that Weinreich had been drinking earlier in the day.
The prosecution charged Weinreich with reckless child abuse resulting in death, vehicular homicide -- alcohol, vehicular homicide - reckless, manslaughter, child abuse resulting in injury, driving under the influence of alcohol, unlawfully overtaking on the left, and driving with excessive blood alcohol content.
The jury found Weinreich guilty of reckless child abuse resulting in death as proscribed by section 18-6-401(1)(a) and (7)(a)(I), C.R.S. (2004). The jury also found him guilty of child abuse resulting in injury and unlawfully overtaking on the left. The jury acquitted Weinreich of the remaining charges, but found him guilty of the lesser-included offenses of careless driving resulting in death, criminally negligent homicide, and driving while ability impaired.
At trial, Weinreich did not dispute that both children were riding unrestrained on his lap when the accident occurred and that he had been drinking that day. His defense was that his level of intoxication did not contribute to the accident and that the driver of the SUV caused the accident by failing to signal the left hand turn. The prosecution put on proof that the SUV's left hand turn signal was operable and visibly flashing before the collision. The parties also disputed the mechanics of the accident, specifically to what extent the impact, the speed of the car, or Weinreich's reactions caused the car to roll.
Another issue at trial was whether Jade's death would have been avoided had she been lawfully restrained in the back seat. Multiple witnesses testified that the back seat was significantly less damaged than the front seat and that a passenger restrained in
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