State v. Killpack

This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
----oo0oo----
State of Utah, No. 20060040
Plaintiff and Appellee,
v.
Jennete Killpack,
F I L E D
Defendant and Appellant. July 22, 2008
---
Fourth District, Provo Dep’t
The Honorable Claudia Laycock
No. 021403668
Attorneys: Mark L. Shurtleff, Att’y Gen., Kris C. Leonard, Laura
B. Dupaix, Asst. Att’ys Gen., Salt Lake City, for
plaintiff
Michael D. Esplin, Provo, Margaret P. Lindsay, Orem,
for defendant
---
DURRANT, Associate Chief Justice:
INTRODUCTION
¶1 Following a jury trial, Jennete Killpack (“Killpack”)
was convicted of child abuse homicide, a second degree felony, in
violation of Utah Code section 76-5-208 (the “child abuse
homicide statute”). She raises five issues on appeal:
1. Whether the trial court properly instructed the jury
regarding the meaning of acting “recklessly” as the
term is used in the child abuse homicide statute;
2. Whether the trial court properly rejected Killpack’s
proposed jury instructions that child abuse homicide
cannot result from injuries inflicted by a parent if
those injuries are caused by the parent’s (a)
reasonable child care choices or (b) reasonable
treatment of the child’s medical condition;
2008 UT 49

No. 20060040 2
3. Whether the trial court properly admitted evidence of
Killpack’s prior bad acts under rule 404(b) of the Utah
Rules of Evidence;
4. Whether the trial court committed cumulative error
warranting the reversal of Killpack’s conviction; and
5. Whether the trial court abused its discretion during
sentencing by refusing to grant Killpack’s request for
probation.
¶2 For the reasons detailed below, we affirm Killpack’s
conviction and sentence. We will address each of the issues in
the order listed above.
BACKGROUND
¶3 Jennete Killpack appeals her conviction for child abuse
homicide. She was found guilty of causing the death of her
daughter, four-year-old Cassandra, by means of forced water
intoxication.
I. EVENTS SURROUNDING THE DEATH OF CASSANDRA KILLPACK
¶4 In July 1999, Killpack and her husband adopted 21-
month-old Cassandra. Some years after the adoption, Cassandra
began having behavioral problems, including refusing to eat at
mealtimes, hoarding and sneaking food, and urinating at
inappropriate times.
¶5 In an effort to curb these behaviors, the Killpacks
began taking Cassandra to therapy sessions with a psychologist,
Dr. Paul Jenkins, who diagnosed Cassandra with Reactive
Attachment Disorder (“RAD”). Dr. Jenkins based his diagnosis on
the Killpacks’ reports of Cassandra’s misbehavior, not on any
behavior he observed during his sessions with the family.1
¶6 In November 2001, Dr. Jenkins suggested that the
Killpacks take Cassandra to a psychiatrist who could prescribe
medication for her. Resisting this suggestion, the Killpacks
stopped seeing Dr. Jenkins and several months later began taking
Cassandra to Cascade Therapy for intensive, nonmedicinal therapy
aimed at treating her behavioral problems. According to
Killpack, the therapists at Cascade confirmed Dr. Jenkins’s RAD
1 Dr. Jenkins testified that Cassandra was quite pleasant
during his sessions with her but noted that such behavior was
typical in children with RAD.

3 No. 20060040
diagnosis and recommended that Killpack implement treatment ideas
from a book by Nancy Thomas.2 The book suggested that parents
could cure a child’s misbehavior by having the child repeat a
particular misbehavior “in excess.” The book did not, however,
specifically suggest forcing a child to drink water as a
treatment for the child’s drinking-related misbehavior.
¶7 According to Killpack, Cassandra’s misbehavior
strained their relationship. Killpack responded to the strain by
severely disciplining and sometimes injuring Cassandra during
several incidents between July 9, 1999, and June 9, 2002. These
incidents included Killpack hitting Cassandra on the head with a
metal spoon, which caused her head to bleed; pushing Cassandra
into the bathroom, where she slipped and hit her face on the
toilet, which caused a black eye; backhanding Cassandra; choking
Cassandra because she would not eat her food; force-feeding
Cassandra; biting Cassandra; forcing Cassandra to drink water to
the point that she spit up and urinated uncontrollably; and
forcing Cassandra to stand in a corner with her hands over her
head until her body shook.
¶8 A final confrontation between Killpack and Cassandra
occurred on June 9, 2002. Killpack testified that on that day,
she forced Cassandra to drink water as punishment for “sneaking”
a glass of Kool-Aid. During this punishment, Killpack forced
Cassandra to drink water until she refused to drink anymore, at
which point Killpack tied Cassandra’s hands behind her back,
leaned her head back, and forced her to drink through a lidded
“sippy” cup. Killpack then untied Cassandra’s arms, and when
Killpack’s husband arrived home, she enlisted him to hold
Cassandra’s arms while the two of them attempted to force
Cassandra to drink yet more water. Though Killpack claims she
forced Cassandra to drink no more than 24 ounces of water,
medical experts testified that, based on the amount of water in
her system at the time of death, Cassandra had been forced to
drink more than five times that amount--4 quarts or 128 ounces.
¶9 When it became clear that Cassandra could not be forced
to drink more water, Killpack and her husband made Cassandra do
exercises, including running, jumping, and doing sit-ups. While
running, Cassandra tripped several times and eventually fell to
the floor. After the exercises, Killpack and her husband made
Cassandra stand in the corner, where she vomited and told
Killpack that she could not keep her legs from shaking and that
2 Evidence relating to Cascade Therapy comes from the
testimony of Killpack and her husband. No one from Cascade
testified during the trial.

No. 20060040 4
her head hurt. Killpack told Cassandra to get a towel to clean
up the vomit. Shortly after this, Cassandra collapsed and lost
consciousness. Killpack’s husband then called 911.
¶10 EMTs took Cassandra to the emergency room at Utah
Valley Medical Center. Her symptoms included a distended
stomach, low body temperature, slow and shallow breathing, low
oxygen saturation level, low sodium levels, an excessive amount
of fluid in her system, foaming at the mouth and nostrils, and
swelling in the brain. Emergency crews treated Cassandra’s
symptoms in part with an intravenous saline solution and oxygen.
Despite their efforts, doctors declared Cassandra brain dead
early the next morning as a result of brain swelling, low blood
sodium, and low brain oxygen, all of which resulted from being
forced to drink an excessive amount of water.
II. TRIAL COURT PROCEEDINGS
¶11 On September 17, 2002, Killpack and her husband were
charged with child abuse homicide and were bound over for trial.
Pursuant to rule 401(b) of the Utah Rules of Evidence, the State
filed a notice of intent to introduce evidence of Killpack’s
previous abuse of Cassandra. The State claimed this evidence was
necessary for two reasons: first, to show that Cassandra’s death
was the result of recklessness and not a mistake or accident, and
second, to establish a specific pattern of behavior by Killpack
toward Cassandra.
¶12 Killpack objected to the proposed evidence, but after a
hearing on September 1, 2005, the trial court granted the State’s
motion to present the evidence at trial. In granting the motion,
the trial court made the following findings of fact and
conclusions of law: (1) that the evidence of prior bad acts need
not fall directly “within one of the exceptions stated in” rule
404(b) because that list was illustrative and meant to be
“‘inclusive’ as opposed to ‘exclusive’”; (2) that Killpack’s
actions constituted “evidence of specific instances of the
defendant’s treatment of Cassandra” and were relevant “to
establish a specific pattern of behavior by the defendant toward
one particular child”; (3) that “[t]he bad acts [were] relevant
and their probative value [was] not substantially outweighed by
the danger of unfair prejudice”; and (4) that “[t]he mens rea of
recklessness[] under the child abuse homicide statute [did] not
preclude the State from introducing prior bad acts to prove
absence of mistake or accident.”
¶13 During the six-week jury trial, Killpack presented a
two-fold defense. First, she claimed that Cassandra died from

5 No. 20060040
accidental head trauma, not water intoxication. Second, she
claimed that her actions were excusable because (1) they were
used to discipline Cassandra as part of a reasonable treatment
program to cure Cassandra’s RAD, and (2) they were based on the
advice she received from the book by Nancy Thomas and the
therapists at Cascade.
¶14 Prior to jury deliberations, the trial court refused
two of Killpack’s proposed jury instructions. The first
instructed the jury that parents do not commit child abuse when
they injure a child as a result of their reasonable choices in
providing the care, custody, and management of the child. The
second similarly instructed the jury that parents do not commit
child abuse when they injure a child as a result of their
reasonable choices in treating the child’s medical condition.
Though rejecting the instructions proposed by Killpack, the trial
court allowed the State’s proposed jury instruction that acting
“recklessly,” as the term is used in the child abuse homicide
statute, refers to consciously disregarding a substantial and
unjustifiable risk of committing child abuse by inflicting
serious physical injury.
¶15 On October 11, 2005, after more than six hours of
deliberation, the jury found Killpack guilty of child abuse
homicide.3 Before sentencing, Killpack presented evidence that
the trial court should grant her probation in lieu of prison
because of several mitigating circumstances, including the
following: (1) she had no previous criminal history; (2) she was
amenable to probation under supervision; (3) she had
exceptionally good family relationships and did not pose a danger
to her other children; and (4) imprisonment would be an excessive
hardship on her children.
¶16 After hearing Killpack’s evidence as to mitigating
circumstances, the trial court denied her request for probation
and sentenced Killpack to one-to-fifteen years in prison. The
trial court noted that both the “catastrophic events of the last
week of Cassandra’s life” and Killpack’s refusal to “acknowledge
full responsibility for her actions” justified the sentence.
¶17 Killpack timely appealed her conviction and sentence to
this court. We have jurisdiction pursuant to Utah Code section
78A-3-102(3)(j) (2008).
3 The jury found her husband not guilty.

No. 20060040 6
STANDARDS OF REVIEW
¶18 The following standards of review apply to the issues
raised by Killpack. First, “whether a jury instruction correctly
states the law presents a question of law which we review for
correctness.”4 Second, “we review a trial court’s decision to
admit evidence under rule 404(b) of the Utah Rules of Evidence
under an abuse of discretion standard.”5 Similarly, we review a
trial court’s decision to deny probation under an abuse of
discretion standard and will overturn a sentencing decision only
if it is “‘clear that the actions of the [trial] judge were so
inherently unfair as to constitute an abuse of discretion.’”6
ANALYSIS
¶19 Having recited the key facts and established the
standards of review applicable in this case, we will now examine
each issue raised by Killpack on appeal.
I. THE TRIAL COURT PROPERLY INSTRUCTED THE JURY REGARDING THE
MEANING OF ACTING “RECKLESSLY” AS THE TERM IS USED IN THE CHILD
ABUSE HOMICIDE STATUTE
¶20 Killpack first argues that the trial court improperly
instructed the jury on the meaning of acting recklessly as an
element of child abuse homicide. The Utah Code defines acting
recklessly as being “aware of but consciously disregard[ing] a
substantial and unjustifiable risk that . . . the result will
occur.”7 The question raised here is which risk must a defendant
be aware of and consciously disregard: the risk of inflicting
serious physical injury or the risk of inflicting death?
¶21 We hold that acting recklessly, as used in the child
abuse homicide statute, means that a defendant is aware of but
consciously disregards a substantial and unjustifiable risk that
her actions will result in child abuse by inflicting serious
physical injury on the child. It does not require the State to
prove that the defendant is aware of but consciously disregards
the risk that her actions will result in the child’s death.
4 State v. S.H., 2002 UT 118, ¶ 11, 62 P.3d 444.
5 State v. Nelson-Waggoner, 2000 UT 59, ¶ 16, 6 P.3d 1120.
6 State v. Rhodes, 818 P.2d 1048, 1051 (Utah Ct. App. 1991).
7 Utah Code Ann. § 76-2-103(3) (Supp. 2007).

7 No. 20060040
Therefore, the trial court properly included the jury instruction
at issue.
¶22 Determining the meaning of recklessness is an issue of
statutory interpretation. And we have long held that the primary
rule in interpreting a statute is “to give effect to the intent
of the legislature in light of the purpose the statute was meant
to achieve.”8 The best evidence of the legislature’s intent is
“the plain language of the statute itself. When examining the
statutory language, we assume the legislature used each term
advisedly and in accordance with its ordinary meaning.”9 If, in
reading the statute, the meaning of the language is clear, we
need look no further to discern the legislature’s intent. In
this case, the meaning of the child abuse homicide statute, when
read in harmony with the child abuse statute, which it
references, is clear.
¶23 The contested jury instruction stated that the jury
could convict Killpack of child abuse homicide only if, among
other things, it found that Cassandra’s “death was the result of
child abuse committed recklessly as provided in subsection 76-5-
109(2),” a subsection of the child abuse statute. Because the
child abuse homicide statute explicitly references the child
abuse statute, determining the meaning of recklessness as used in
the former statute requires an interpretation of the latter.10
Read together, the plain language of these two statutes leads us
to conclude that the contested jury instruction correctly stated
the law and was thus properly allowed.
¶24 Our analysis necessarily begins with the definition of
recklessness. In its part entitled “Culpability Generally,” the
Utah Criminal Code defines acting recklessly as being “aware of
but consciously disregard[ing] a substantial and unjustifiable
8 State v. Bluff, 2002 UT 66, ¶ 34, 52 P.3d 1210.
9 State ex rel. Z.C., 2007 UT 54, ¶ 6, 165 P.3d 1206
(citations and internal quotation marks omitted).
10 The child abuse homicide statute explicitly requires
that, in order to be guilty of child abuse homicide, a defendant
must inflict child abuse “as defined in” the child abuse homicide
statute. And the child abuse must be done recklessly “as
provided in” the child abuse statute. Any interpretation of the
mens rea required by the child abuse homicide statute thus relies
on the language of the child abuse statute. Utah Code Ann. §§
76-5-109, -208.

No. 20060040 8
risk that . . . the result will occur.”11 The question in this
case is which result: serious physical injury or death? The
child abuse homicide statute provides that a person commits child
abuse homicide if she “causes the death of” a child, and “the
death results from child abuse . . . if done recklessly as
provided in subsection 76-5-109(2)(b).”12 Subsection 76-5-
109(2)(b) of the child abuse statute provides that a person is
guilty of child abuse if she “inflicts upon a child serious
physical injury.”13 The only act the statute references is
committing child abuse by inflicting serious physical injury.
It does not mention causing the child’s death. Read together,
these two statutes clearly provide that a person is guilty of
child abuse if she inflicts serious physical injury on a child.
If she inflicts that serious physical injury recklessly and the
injury results in the child’s death, she has committed child
abuse homicide. Because there is no requirement under the
statute that the defendant act recklessly as to causing the
child’s death, the contested jury instruction correctly stated
the law and was appropriately proffered to the jury.
II. THE TRIAL COURT PROPERLY REJECTED KILLPACK’S PROPOSED JURY
INSTRUCTIONS
¶25 We next examine two jury instructions that Killpack
proposed but that the trial court rejected.
11 Id. § 76-2-103(3).
12 Id. § 76-5-208. Also instructive of this interpretation
is subsection 76-5-208(1)(c) of the child abuse homicide statute,
which provides that the mental culpability required to commit
child abuse homicide is the same mental culpability “as provided
in” subsections 76-5-109(3)(a), (b), or (c). These subsections
list the mental states for committing child abuse and include
acting “intentionally,” “recklessly,” or “negligently.” Again,
the only reference to acting recklessly is in relation to
committing child abuse through inflicting serious physical
injury. There is no reference to causing the child’s death.
13 Utah Code section 76-5-109(3) provides that “physical
injury” of a child also constitutes child abuse. However, the
child abuse homicide statute only references section 76-5-109(2),
the subsection that refers to committing child abuse by
inflicting serious physical injury. Thus our discussion centers
on subsection 76-5-109(2).

9 No. 20060040
A. The Trial Court Properly Rejected Killpack’s Proposed Jury
Instruction Regarding a Parent’s Reasonable Child Care Choices
¶26 Killpack’s first proposed jury instruction is based on
Utah Code section 62A-4a-201, a portion of the Utah Human
Services Code.14 This section provides that parents have a
“fundamental” right to make decisions about how to raise their
children. Based on the wording of the statute, Killpack proposed
the following instruction:
Parents have a fundamental liberty interest
in the care, custody and management of their
children, as protected by the 14th Amendment.
Child abuse does not include injury that
results from a parent’s reasonable choices
made in providing the care, custody and
management of their children as viewed from
the parent’s standpoint.
¶27 The trial court rejected this instruction, noting that
the section of the Utah Human Services Code that Killpack cited
is “clearly a statement of general policy that has to do with
situations where the State comes in and removes children from the
home of their parents. . . . That’s not the issue in this case.”
¶28 While we could decline to address this issue based on
Killpack’s failure to properly brief it,15 we nevertheless reach
the merits of the issue and conclude that the trial court
correctly refused this instruction because nothing in the Utah
Human Services Code can be construed as a defense against child
abuse.
14 Utah Code Ann. § 62A-4a-201 (2006).
15 We note that Killpack’s brief on this point wholly fails
to comply with our well-established briefing requirements. In
support of her argument, Killpack offers little more than a bare
citation to section 62A-4a-201 of the Utah Human Services Code.
There is no reasoned analysis of that authority, nor is there any
substantive examination of the issue. In fact, Killpack’s entire
argument consists of one paragraph, half of which simply reprints
the text of the rejected instruction. As such, we could properly
disregard or strike this portion of Killpack’s brief. Utah R.
App. P. 24(j); see, e.g., Valcarce v. Fitzgerald, 961 P.2d 305,
313 (Utah 1998); Carrier v. Pro-Tech Restoration, 944 P.2d 346,
354 (Utah 1997).

No. 20060040 10
¶29 Killpack attempts to justify this instruction by citing
to Utah Code section 62A-4a-201(1)(a), which requires adequate
procedures “be provided to parents if the state moves to
challenge or interfere with parental rights.” As Killpack
argues, this section recognizes that parents possess a
“fundamental liberty interest in the care, custody, and
management” of their children. But Killpack is incorrect in
suggesting that this section grants parents immunity from child
abuse charges based on their parenting choices.
¶30 In the child abuse statute, the legislature has
enumerated specific defenses to child abuse. Thus, a parent does
not commit child abuse by (1) treating a child’s medical
condition by spiritual means in lieu of medical treatment,
(2) treating a child’s medical condition reasonably and with the
best interest of the child in mind, and (3) imposing reasonable
discipline or physical restraint on a child for specifically
enumerated purposes such as self-defense.16 The child abuse
statute recognizes no defense against a charge of child abuse
for, as Killpack proposed, “injury that results from a parent’s
reasonable choices made in providing the care, custody and
management of their children.” And even if we were to recognize
this defense, Killpack would still have been required to prove
that her treatment of Cassandra was “reasonable.” In finding her
guilty of child abuse homicide, the jury found that Killpack had
behaved recklessly towards Cassandra and, therefore, necessarily
concluded that Killpack’s actions were not reasonable.
¶31 Because we find nothing to suggest that a fundamental
interest in the care, custody, and management of a child gives
parents the authority to commit acts that would otherwise be
child abuse, we find that the trial court properly rejected
Killpack’s first proposed jury instruction.
B. The Trial Court Properly Rejected Killpack’s Proposed Jury
Instruction Regarding a Parent’s Treatment Options for a Child’s
Medical Condition
¶32 Killpack’s second proposed jury instruction is based on
the medical treatment defenses provided for in the child abuse
statute. Specifically, Killpack relied on the defense that “[a]
parent or guardian of a child does not violate this section by
selecting a treatment option for the medical condition of the
16 Utah Code Ann. § 76-5-109(4)-(6) (Supp. 2007).

11 No. 20060040
child, if the treatment option is one that a reasonable parent
. . . would believe to be in the best interest of the child.”17
¶33 Killpack maintains that she was entitled to an
instruction based on this defense for two reasons: (1) Reactive
Attachment Disorder is a medical condition within the definition
of the statute because it is listed in the DSM-IV (Diagnostic &
Statistical Manual of Mental Disorders, 4th ed.), and (2) her
actions (i.e., forcing Cassandra to drink an excessive amount of
water) were the result of a “course of treatment prescribed,
recommended, and/or approved by the mental health providers.”
¶34 In rejecting Killpack’s proposed instruction, the trial
court focused on the definition of “medical condition” in the
child abuse statute and held that “under these facts Reactive
Attachment Disorder is not a medical condition.”18 While we
affirm the trial court’s decision to reject the proposed
instruction, we wish to clarify that RAD is a medical condition
for purposes of the child abuse statute.
¶35 Over the past several decades, healthcare professionals
have made broad advances in the diagnosis and treatment of mental
disease. Such illnesses are now recognized by both the medical
community and the populace at large as conditions that may
require medication and often intensive treatment by doctors. We
find it unlikely that the legislature intended to exclude mental
illnesses from the definition of “medical condition.”19
17 Id.
18 The trial court further explained that the reason it did
not consider RAD to be a medical condition was that neither the
Killpacks nor their therapists considered it as such: “I don’t
see that anyone in that home treated this child’s sneaking of the
water or the drinking the sippy cup or sneaking of food as a
medical problem or a medical condition.”
19 While the Utah Code does not define the term “medical
condition,” other state courts addressing this issue have
concluded that the term “medical” encompasses both mental and
physical health. State v. Robinson, 735 P.2d 801, 809 n.9 (Ariz.
1987) (explaining that a psychologist treating a patient for
well-established psychological problems constitutes treating the
patient for “medical” purposes); cf. Madere v. State, 2000-KA-
00347-SCT ¶ 40 (Miss. 2001), 794 So.2d 200 (holding that the term
“medical,” as used in the hearsay exception regarding statements
made for the purpose of medical diagnosis or treatment, includes
(continued...)

No. 20060040 12
Consequently, we hold that mental illnesses are “medical
conditions” as that term is used in the child abuse statute.
¶36 Having determined that RAD fits within the definition
of “medical condition,” the next question is whether Killpack
presented evidence sufficient that a jury could find that a
reasonable parent would employ forced water ingestion in the
excessive amount employed by Killpack as a treatment method for
Cassandra’s RAD. Given the paucity of evidence presented by
Killpack at trial, the answer is clearly no. As such, the trial
court was correct in rejecting this instruction.
¶37 Killpack did present some evidence in support of her
“medical treatment” defense. Killpack’s husband testified that
prior to the events of June 9, 2002, he had discussed with
Cascade’s therapists an incident where the Killpacks had forced
Cassandra to drink water as punishment for misbehavior.
According to Killpack’s husband, the therapist told Killpack that
“two or three more times of that, and [Cassandra] should be
fine.”
¶38 Though minimal, this does constitute evidence on which
a jury could have relied for finding that a reasonable parent
would have used some measure of forced water ingestion as
treatment for RAD. There is no evidence, however, on which a
jury could have relied to find that a reasonable parent would
have used the extreme amount of water Killpack forced into
Cassandra on the night of June 9, 2002. Nor did Killpack present
evidence to support a finding that a reasonable parent would have
believed that such treatment was in the best interest of her
child.20
19 (...continued)
emotional and mental health as well as physical health).
20 Killpack’s husband testified that Killpack told him of an
occasion prior to Cassandra’s death when Killpack forced
Cassandra to ingest water as punishment. Killpack explained that
Cassandra spit up as a result, and her husband responded, “I’m
not comfortable with that. Don’t do that.” Given Mr. Killpack’s
own discomfort with using a relatively minor amount of water when
it resulted in adverse effects on Cassandra, it is unlikely the
jury would have found that Killpack’s use of the excessive amount
of water on the night of Cassandra’s death was a treatment option
a reasonable parent would employ or believe to be in the child’s
best interest.

13 No. 20060040
¶39 Additionally, regardless of the jury instruction,
Killpack was never precluded from mounting a full medical
treatment defense based on the statute. Killpack had every
opportunity to present evidence regarding Cassandra’s medical
condition, the treatment options she employed, and her belief in
their efficacy and safety. In short, Killpack was permitted to
fully present her defense that she was treating Cassandra’s
medical condition reasonably and doing so with the child’s best
interest at heart.
¶40 By finding Killpack guilty of child abuse homicide, the
jury found that she recklessly disregarded a substantial risk of
seriously injuring her child. In this case, the jury’s finding
of recklessness is incompatible with a conclusion that Killpack’s
treatment of Cassandra was reasonable. Consequently, even if we
were to assume the trial court erred in rejecting Killpack’s
proposed instruction regarding reasonable treatment options for
Cassandra’s medical condition, Killpack was not harmed by the
exclusion.
III. THE TRIAL COURT PROPERLY ALLOWED EVIDENCE OF PRIOR BAD ACTS
UNDER RULE 404(b)
¶41 Killpack next argues that under rule 404(b) of the Utah
Rules of Evidence, the trial court erred by admitting evidence of
her prior abuse of Cassandra. Specifically, Killpack claims that
evidence of prior abusive episodes was not relevant to prove
“recklessness” or any other element of child abuse homicide.
Further, she claims that the evidence created prejudice against
her in the minds of the jury members that outweighed the
evidence’s probative value.
¶42 According to the trial court, it admitted evidence of
Killpack’s prior abuse of Cassandra for two reasons: (1) the
acts constituted “specific instances of the defendant’s treatment
of Cassandra and [we]re relevant . . . to establish a specific
pattern of behavior by the defendant toward one particular
child,” and (2) the evidence of prior bad acts could be used to
“prove absence of mistake or accident” on behalf of Killpack in
causing Cassandra’s death.21
21 In its ruling allowing the evidence, the trial court
held, “[t]here is nothing in the recklessness definition that
states that a defendant doesn’t have to mean to do what he or she
did--the reckless [element] goes to things other than just
whether or not they meant to actually commit the very act.”

No. 20060040 14
¶43 We agree with the trial court’s interpretation of the
Utah Rules of Evidence and hold that it properly admitted
evidence of Killpack’s prior abuse of Cassandra.
¶44 Rule 404(b) of the Utah Rules of Evidence provides that
[e]vidence of other crimes, wrongs or acts is
not admissible to prove the character of a
person in order to show action in conformity
therewith. It may, however, be admissible
for other purposes, such as proof of motive,
opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or
accident.22
¶45 We have established a three-part test for determining
the admissibility of evidence of prior crimes, uncharged
misconduct, or bad acts. Such evidence is admissible if it
(1) “is relevant to,” (2) “a proper, non-character purpose,” and
(3) does not pose a “danger for unfair prejudice” that
“substantially outweighs its probative value.”23 Consequently,
evidence of a defendant’s other crimes, wrongs, or bad acts may
be admitted if such evidence “has ‘a special relevance to a
controverted issue and is introduced for a purpose other than to
show the defendant’s predisposition to criminality.’”24
¶46 Our child abuse case law clearly indicates that
evidence of instances of uncharged abuse involving the same
victim and the same defendant is admissible for proper
noncharacter purposes. For instance, in State v. Reed, we held
that evidence of specific instances of uncharged child abuse may
be properly admitted as noncharacter evidence under rule 404(b)
when offered “‘to establish a specific pattern of behavior by the
defendant toward one particular child, the victim.’”25 Such
22 State v. S.H., 2002 UT 118, ¶ 28, 62 P.3d 444
(noting that the list of allowed noncharacter purposes in rule
404(b) is not exhaustive).
23 State v. Widdison, 2001 UT 60, ¶ 41, 28 P.3d 1278.
24 State v. Featherson, 781 P.2d 424, 426 (Utah 1989)
(quoting State v. Shickles, 760 P.2d 291, 295 (Utah 1988)); see
also State v. Fedorowicz, 2002 UT 67, ¶ 26, 52 P.3d 1194.
25 2000 UT 68, ¶ 26, 8 P.3d 1025 (quoting State v. Tanner,
675 P.2d 538, 546 (Utah 1983)); Tanner, 675 P.2d at 546 (holding
(continued...)

15 No. 20060040
evidence is often “indicative of the defendant’s state of mind”
and completes the story of the charged abuse.26 Furthermore,
evidence of prior child abuse is allowed “to show identity,
intent or mental state, and lack of accident or mistake.”27
¶47 At Killpack’s trial, the burden fell on the State to
prove each element of the crime of child abuse homicide as well
as to counter Killpack’s affirmative defense.28 Killpack
presented a two-fold defense. First, she argued that Cassandra
died not from water intoxication but from accidental head trauma
or, alternatively, that the intravenous solution given to
Cassandra by the EMTs contributed to her symptoms. Second, she
claimed that forcing Cassandra to drink excessive levels of water
25 (...continued)
that in cases of child abuse, evidence of specific instances of a
defendant’s treatment of a child are relevant to establish
specific patterns of behavior by the defendant toward one
particular child, not merely a general disposition for violence
or ill-will toward all children); see also State v. Teuscher, 883
P.2d 922, 927 (Utah Ct. App. 1994) (“Evidence regarding prior
instances of abuse perpetrated against the victim is clearly
admissible in Utah to show identity, intent or mental state, and
lack of accident or mistake.”).
26 Tanner, 675 P.2d at 545 (internal quotation marks
omitted). Killpack contends that Tanner is not controlling in
this case because the issue in Tanner was whether injuries
sustained by a child were the result of an accident or an
intentional act on the part of the defendant. Killpack’s
argument fails on two points: (1) Killpack claims that the death
of her child was the result of an accident and not of her
actions, and (2) prior bad acts can be used to show that a
defendant was aware of a substantial and unjustified risk of
injury just as they can be used to show intentional actions.
27 Teuscher, 883 P.2d at 927; see Fedorowicz, 2002 UT 67,
¶ 30 (“Evidence is admissible under rule 404(b) to rebut a
defense of accidental injury raised exclusively on cross-
examination of the State’s witnesses, irrespective of whether the
defendant testifies or otherwise presents affirmative evidence of
an accident.”).
28 Widdison, 2001 UT 60, ¶ 41 (admitting evidence of
defendant’s prior abuse of both victim and her other children to
prove her identity as the abuser and that the child’s injuries
were “non-accidental”).

No. 20060040 16
was part of a legitimate therapy to treat RAD and that Killpack
did not know forced water ingestion could be harmful.
¶48 To counter these defenses, the State was justified in
presenting evidence of Killpack’s prior abuse of Cassandra. This
evidence was used to rebut controverted issues and prove the
elements of child abuse homicide by showing (1) that Cassandra’s
death was not an accident, (2) that Killpack should have known
the danger caused by forced water ingestion because she had
previously seen Cassandra spit up and urinate uncontrollably as a
result of drinking an excessive amount of water, and (3) that
Killpack’s prior abusive acts were not consistent with any
reasonable medical treatment plan.
¶49 The evidence of prior abusive episodes was relevant in
each of these respects. First, it was relevant to establishing
that Cassandra’s death was not an accident. Killpack’s prior
treatment of Cassandra included episodes of choking, hitting, and
force-feeding, some of which resulted in serious injury to
Cassandra. These incidents all tend to establish that Killpack
had a specific pattern of disregarding substantial and
unjustifiable risks of harm to her child, and thus her final act
of forcing Cassandra to ingest an excessive amount of water was
not an accident.
¶50 Second, the prior abusive episodes were relevant to
establishing that Killpack knew of the danger of harm caused by
forced water ingestion. Killpack claimed she was unaware of any
risks associated with forcing Cassandra to drink an excessive
amount of water and that she would not have taken such a risk had
she been aware of it. Directly contradicting her claim, however,
was the evidence that Cassandra had spit up when Killpack forced
the child to ingest large quantities of water on previous
occasions.
¶51 Finally, the evidence of prior abusive episodes was
relevant to establishing that Killpack’s treatment of Cassandra
was not part of any reasonable medical treatment plan. As noted
above, Killpack was aware of the risks associated with forcing
Cassandra to drink an excessive amount of water because she had
seen the negative physical repercussions when she employed forced
water ingestion on prior occasions. Specifically, she witnessed
Cassandra spit up and urinate uncontrollably.
¶52 Because these prior incidents of abuse were
(1) relevant to (2) proper noncharacter purposes, the first two
elements of the three-part test for admissibility are satisfied.
We must now consider whether the evidence was more probative than

17 No. 20060040
prejudicial as required by rule 403. Rule 403 of the Utah Rules
of Evidence provides that “[a]lthough 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, or by considerations of undue delay, waste
of time, or needless presentation of cumulative evidence.”
¶53 In determining whether evidence poses a danger of
unfair prejudice that substantially outweighs its probative
value, trial courts are required to consider several factors.
Rule 403 does not require a trial court to dismiss all
prejudicial evidence because “‘[a]ll effective evidence is
prejudicial in the sense of being damaging to the party against
whom it is offered.’”29 Rather, the rule only requires that the
trial court measure the danger the evidence poses of causing
“unfair prejudice” to a defendant.30 Only when evidence poses a
danger of “rous[ing] the jury to overmastering hostility” does it
reach the level of unfair prejudice that rule 403 is designed to
prevent.31
¶54 Though evidence of Killpack’s prior abuse of Cassandra
is certainly prejudicial--as is all evidence of abuse--the highly
probative value of the evidence and its relevance to the issues
controverted at trial justified the trial court in admitting the
evidence under rule 402(b). Killpack has offered no convincing
reason to distinguish her case from other child abuse homicide
cases where trial courts properly admitted evidence of prior
child abuse. Killpack also has not shown that the admitted
evidence failed any prong of the three-part test. Therefore, we
find that the trial court correctly admitted evidence of
Killpack’s prior bad acts.
IV. THE REQUIREMENTS OF THE CUMULATIVE ERROR DOCTRINE ARE NOT
MET
¶55 Killpack contends that even if no harm was caused by
the trial court’s errors individually, the combined effect of
those errors is such that her conviction should be reversed under
the cumulative error doctrine.
29 Woods v. Zeluff, 2007 UT App 84, ¶ 7, 158 P.3d 552
(quoting State v. Maurer, 770 P.2d 981, 984 (Utah 1989)).
30 Id. (emphasis added).
31 State v. Reed, 2000 UT 68, ¶ 29, 8 P.3d 1025.

No. 20060040 18
¶56 A reviewing court will reverse a jury verdict under the
cumulative error doctrine only “‘if the cumulative effect of the
several errors undermines . . . confidence that a fair trial was
had.’”32 If, however, we determine that a defendant’s claims do
not constitute errors on the part of the trial court, then it
follows that the requirements of the cumulative error doctrine
are not met. As discussed, Killpack has failed to show that any
of the trial court’s actions amount to error. Thus, there was no
cumulative error in this case.
V. THE TRIAL COURT ACTED WITHIN ITS DISCRETION IN DENYING
KILLPACK’S REQUEST FOR PROBATION
¶57 We now turn to the fifth and final issue on appeal.
Killpack argues that her one-to-fifteen year prison sentence was
“inherently unfair and clearly excessive under a totality of the
facts.” Killpack maintains that in light of several mitigating
factors--including that she lacked any previous criminal history,
displayed “a cooperative attitude,” showed an ability for
rehabilitation, and that imprisonment would “entail excessive
hardship” on her husband and children--the trial court “abused
[its] discretion in choosing prison over probation.” For the
reasons outlined below, we affirm the trial court’s sentencing
decision.
¶58 We have traditionally afforded trial courts “wide
latitude and discretion in sentencing,”33 recognizing that they
are best situated to weigh the many “intangibles of character,
personality and attitude, of which the cold record gives little
inkling.”34 Consequently, the decision of whether to grant
probation “must of necessity rest within the discretion of the
judge who hears the case.”35
¶59 In general, a trial court’s sentencing decision will
not be overturned “unless it exceeds statutory or constitutional
limits, the judge failed to consider all the legally relevant
factors, or the actions of the judge were so inherently unfair as
32 State v. Widdison, 2001 UT 60, ¶ 73, 28 P.3d 1278
(omissions in original) (quoting State v. Dunn, 850 P.2d 1201,
1229 (Utah 1993)).
33 State v. Woodland, 945 P.2d 665, 671 (Utah 1997).
34 State v. Sibert, 310 P.2d 388, 393 (Utah 1957); see also
State v. Rhodes, 818 P.2d 1048, 1049 (Utah Ct. App. 1991).
35 Sibert, 310 P.2d at 393.

19 No. 20060040
to constitute abuse of discretion.”36 Although courts must
consider all legally relevant factors in making a sentencing
decision, not all aggravating and mitigating factors are equally
important, and “[o]ne factor in mitigation or aggravation may
weigh more than several factors on the opposite scale.”37 Thus,
several mitigating circumstances claimed by a defendant may be
outweighed by a few egregious aggravating factors.
¶60 The trial court in this case pointed to two aggravating
factors that, in its opinion, outweighed the mitigating factors
outlined by Killpack: (1) the “catastrophic events of the last
week of Cassandra’s life,” including the “last struggle” between
Killpack and Cassandra that resulted in the child’s death; and
(2) the fact that Killpack failed to “acknowledge full
responsibility for her actions.” The trial court placed
particular emphasis on the “power struggle” between Killpack and
Cassandra which “involved denial of food and other privileges, a
torturous week of therapy at a clinic . . . and a final
confrontation” where Killpack “somehow forced [Cassandra] to
ingest four quarts of water or more.” In opining on these
events, the trial court stated that it “greatly fear[ed] that
[Cassandra] suffered far more than we will ever understand.”
¶61 In light of the careful consideration by the sentencing
court of all mitigating and aggravating factors and its clear
articulation of the reasons for its decision, we cannot say that
the court abused its discretion in denying Killpack’s request for
probation.
CONCLUSION
¶62 In conclusion, we hold the following points of law.
First, to prove a defendant has acted recklessly under the child
abuse homicide statute, the State need only prove that the
defendant consciously disregarded the risk of committing child
abuse by inflicting serious physical injury, not that she
consciously disregarded the risk of causing the child’s death.
Second, because Killpack failed to present sufficient evidence to
satisfy the medical treatment defense, she was not entitled to a
medical treatment defense jury instruction. Third, the evidence
of Killpack’s prior abuse of Cassandra was properly allowed under
rule 404(b) of the Utah Rules of Evidence because it was relevant
to a proper, noncharacter purpose, and it did not pose a danger
36 State v. Sotolongo, 2003 UT App 214, ¶ 3, 73 P.3d 991
(citations and internal quotation marks omitted).
37 State v. Russell, 791 P.2d 188, 192 (Utah 1990).

No. 20060040 20
of unfair prejudice that substantially outweighed its probative
value. Fourth, because we have found no error in this case, the
requirements of the cumulative error doctrine are not met.
Finally, the trial court did not abuse its discretion by denying
Killpack probation. Consequently, we affirm Killpack’s
conviction and sentence.
---
¶63 Chief Justice Durham, Justice Wilkins, Justice Parrish,
and Justice Nehring concur in Associate Chief Justice Durrant’s
opinion.