Colorado Court of Appeals People v. Childress 08CA2329

Decision here.

   Childress bought alcohol for a party where he and his 17 year old son got really drunk.  His three year old was there too.  After the party, he, his two kids, and his son's girlfriend drove from Lakewood to Aurora (Childress drove), and there was apparently some recklessness and minor accidents along the way.  When they got to Aurora, they found out that someone had pulled a gun at the party in Lakewood, so they decided to go back.  This time, Childress' older son drove, and there was more recklessness, and a much more serious accident (vehicle vs. building resulting in serious bodily injury).

   Childress was charged with DUI, vehicular assault, child abuse, and some other stuff.  He was convicted of most of it.  The DUI and vehicular assault charges were brought against him under a complicity theory. In defining complicity, 18-1-603 says:

A person is legally accountable as principal for the
behavior of another constituting a criminal offense if,
with the intent to promote or facilitate the commission of
the offense, he or she aids, abets, advises, or encourages
the other person in planning or committing the offense.

   Previously, the state supreme court has held that complicity requires a dual culpable mental state: it requires that the person charged under complicity have the same culpable mental state that is required in the statute for the crime being committed, and also that the person charged under complicity intend that is conduct promote or aid the person committing the crime.  Now, vehicular assault is a strict liability offense, meaning that there is no culpable mental state required.

   The Court of Appeals held that since vehicular assault (at least under the DUI section) is a strict liability offense, you can't charge someone with vehicular assault under complicity because there is no culpable mental state to prove.  (I don't really understand what the court is doing here.  I don't see anything in the statute that requires this, but their decision is based on a decision of the supreme court, so that's just the way it is).  Accordingly, Childress' vehicular assault conviction was vacated.

   There was apparently a problem with the jury instructions on child abuse, so the case was remanded for a new trial on those charges.  Childress' other convictions were affirmed.