Peo v. Flynn

22CA1264 Peo v Flynn 12-05-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 22CA1264
Mesa County District Court No. 22CR530
Honorable Richard T. Gurley, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Paul W. Flynn,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division VI
Opinion by JUDGE BROWN
Welling and Moultrie, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced December 5, 2024

Philip J. Weiser, Attorney General, William G. Kozeliski, Senior Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Shann Jeffery, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 Defendant, Paul W. Flynn, appeals the judgment of conviction

entered upon a jury verdict finding him guilty of child abuse

resulting in serious bodily injury. Flynn contends that (1) the

district court’s characterization of the defense-offered Crim. P. 24

statement improperly lowered the prosecutor’s burden of proof;

(2) the district court abused its discretion by refusing to dismiss a

juror for alleged misconduct; and (3) the evidence presented at trial

was insufficient to sustain his conviction. We reject these

contentions and affirm.

I. Background

¶2 The following evidence was presented at trial. Flynn is the

father of K.F., who was born in May 2019. K.F. was healthy when

she was born, and Flynn and K.F.’s mother both took parenting

classes before her birth.

¶3 In the first ten months of K.F.’s life, she experienced three

incidents during which she stopped breathing. The first incident

occurred when she was six weeks old. Flynn had K.F. with him in a

men’s bathroom at a Walmart when he frantically emerged to

inform K.F.’s mother that K.F. had stopped breathing and turned

pale and blue. K.F. began breathing again after her mother rubbed

1
her chest. According to Flynn, K.F. stopped breathing while he was

preparing a bottle for her.

¶4 The second incident occurred when K.F. was five months old.

Flynn was home with K.F. in an upstairs bedroom while K.F.’s

mother was preparing dinner in the kitchen. Flynn screamed for

help, and K.F.’s mother ran upstairs to find K.F. lying on the floor.

K.F.’s mother immediately took K.F. outside to the front porch,

hoping that the cold outside would stimulate her breathing. After

approximately thirty seconds in the cold, K.F. began breathing

again. When asked later, Flynn could not explain what had led to

K.F.’s loss of breath.

¶5 The third incident occurred on March 29, 2020, when K.F.

was ten months old, and gave rise to the conviction in this case.

Other household members were in the living room of Flynn’s home

when they witnessed Flynn run downstairs and outside, carrying

K.F. and yelling for someone to call 911 because K.F. was not

breathing. A “couple minutes later,” K.F. was breathing again.

K.F.’s mother was not home at the time. Although K.F.’s mother

had not noticed any unusual bruises or marks on K.F. when

changing her earlier that day, doctors later discovered that K.F. had

2
suffered multiple injuries, including bruises and two broken ribs,

which were at different stages of healing.

¶6 On March 30, an investigator from the Mesa County Sheriff’s

Department interviewed Flynn. After Flynn stated “I know it’s my

fault[,]” the investigator sought clarification, asking, “I just wanna

make sure we’re givin’ you a fair shake here. You’re convinced

you’re the one that did it?” Flynn replied, “Cause everyone is sayin’

that I’m holdin’ her too tight, and . . . it’s always happened in my

possession. It . . . has to be me.” Flynn further conceded, “I get too

upset and too frustrated and don’t realize what I’m doing to the

point where I hurt her.”

¶7 Flynn was charged with five counts of child abuse resulting in

serious bodily injury, one count of child abuse (second or

subsequent offense), and a habitual child abuser sentence

enhancer. Following a five-day trial, the jury found Flynn guilty of

one count of child abuse resulting in serious bodily injury.1 The

1 The district court granted Flynn’s motion for judgment of acquittal

on two counts of child abuse resulting in serious bodily injury. The
prosecution moved to dismiss the child abuse (second or
subsequent offense) charge and the habitual child abuser sentence
enhancer. And the jury acquitted Flynn of two counts of child
abuse resulting in serious bodily injury.

3
court sentenced Flynn to fifteen years in the custody of the

Department of Corrections.

II. The Crim. P. 24 Statement

¶8 Flynn contends that the district court erred by

recharacterizing a Crim. P. 24 statement as a preview of the trial

evidence, which impermissibly lowered the prosecution’s burden of

proof. We conclude that the court’s comments did not lower the

burden of proof.

A. Additional Background

¶9 Before trial, defense counsel submitted a Crim. P. 24

statement to provide relevant context for the prospective jurors to

respond to questions asked of them during jury selection. See

Crim. P. 24(a)(2)(iv). After the district court forgot about the

statement, defense counsel reminded the court to read it to the

venire. The court introduced the statement as “a little summary of

what the allegations are on the case,” but warned the prospective

jurors that they were “to make [their] decision based upon the

evidence that’s presented or lack of evidence that’s presented,

whatever the case might be.”

4
¶ 10 The court then read the statement defense counsel had

drafted:

On March 29, 2020, 9-month-old [K.F.]
stopped breathing while her father, Paul
Flynn, was watching her and she was brought
to the hospital. At the emergency room,
doctors determined that she had two broken
ribs in different stages of healing; the injuries
were consistent with “non-accidental trauma.”
The doctors deemed the breathing incident to
be a Brief Resolved Unexplained Event (BRUE),
and police subsequently learned that [K.F.]
had stopped breathing on two prior occasions
while under Mr. Flynn’s care, including once
when she turned blue. While at the emergency
room on March 29, a doctor confronted Mr.
Flynn about their concerns of abuse and Mr.
Flynn became so angry that others had to
intervene. [K.F.] was then placed in DHS
custody and since then, she has not had any
more BRUEs. Mr. Flynn interviewed with
police and admitted that he has squeezed
[K.F.] too tightly on several occasions. He also
admitted that [K.F] had once fallen into some
plastic shelves at their home and bruised her
face.

The court finished by saying, “So, that’s a little synopsis of how —

or what I think eventually led to these charges.”

¶ 11 The court then asked the venire whether there was “[a]nything

about that synopsis that ma[de] anybody think they couldn’t fairly

assess the evidence in this case?” After a prospective juror

5
volunteered that they “would be biased just hearing that already,”

the court responded, “I had a little hesitancy reading that because

the evidence is going to be what it is here. And so you think that

you’d have trouble waiting to hear what [the] People have to say

about this in detail?” The juror highlighted the substance of the

statement — specifically, the “findings” of “the police and the ER

doctor” — and said it “seems hard to kind of see it any other way.”

Several other prospective jurors raised similar concerns.

B. Standard of Review and Applicable Law

¶ 12 The Due Process Clause of the United States Constitution

“protects the accused against conviction except upon proof beyond

a reasonable doubt of every fact necessary to constitute the crime

with which he is charged.” Tibbles v. People, 2022 CO 1, ¶ 23

(quoting In re Winship, 397 U.S. 358, 364 (1970)). “Intrinsically

related to this standard is the presumption of innocence afforded

criminal defendants.” Id. at ¶ 24; see Winship, 397 U.S. at 363

(“The [reasonable doubt] standard provides concrete substance for

the presumption of innocence.”). Accordingly, trial courts “must

properly instruct the jury on . . . the reasonable doubt standard.”

Tibbles, ¶ 25. Instructions that lower the prosecution’s burden of

6
proof constitute structural error and require automatic reversal. Id.

at ¶ 22.

¶ 13 We review de novo whether the trial court’s instructions

improperly lowered the prosecution’s burden of proof. Id.; Johnson

v. People, 2019 CO 17, ¶ 8. To determine whether a court’s

statements to a jury lowered the burden of proof, we “must ask

whether there is a reasonable likelihood that the jury understood

the court’s statements, in the context of the instructions as a whole

and the trial record, to allow a conviction based on a standard lower

than beyond a reasonable doubt.” Tibbles, ¶ 43. We look at “the

nature of the statements, the context in which they were made, any

other explanations or instructions that the court may have

provided, and, of course, the court’s final jury charge.” Id. at ¶ 41.

Importantly, we apply the same standard to the court’s informal

comments as we do formal instructions because “we do not expect

jurors to make fine distinctions between statements of applicable

law that the court makes in one context as opposed to another.” Id.

at ¶ 40.

¶ 14 The district court made the comments at issue during voir

dire. The purpose of voir dire is “to inform prospective jurors about

7
their duties . . . and to obtain information about prospective jurors

to facilitate an intelligent exercise of challenges for cause and

peremptory challenges.” Crim. P. 24(a). During voir dire, a trial

court must explain to prospective jurors the “[g]eneral legal

principles applicable to the case including the presumption of

innocence, burden of proof, definition of reasonable doubt, elements

of charged offenses and other matters that jurors will be required to

consider and apply in deciding the issues.” Crim. P. 24(a)(2)(v); see

People v. Clemens, 2017 CO 89, ¶ 17. As is relevant here, a trial

court should explain the “nature of the case using applicable

instructions if available, or alternatively a joint statement of factual

information intended to provide a relevant context for the

prospective jurors to respond to questions asked of them.” Crim. P.

24(a)(2)(iv).

C. The District Court’s Statements Did Not Lower the
Prosecution’s Burden of Proof

¶ 15 As an initial matter, to the extent Flynn contends that he was

prejudiced by the content of the statement, we conclude that he

invited any error. The invited error doctrine prevents a party from

complaining on appeal of an error they have invited or injected into

8
the case. People v. Rediger, 2018 CO 32, ¶ 34. “Invited error most

often arises in holding a defendant responsible for tendering or

agreeing to a jury instruction later challenged on appeal.” People v.

Foster, 2013 COA 85, ¶ 26, abrogated on other grounds by Wells-

Yates v. People, 2019 CO 90M, ¶ 66. If the claim of error “resulted

from the affirmative injection of error into the case, then the claim

of error is unreviewable.” People v. Garcia, 2018 COA 180, ¶ 6.

¶ 16 Defense counsel drafted and tendered the Crim. P. 24

statement and reminded the district court that it needed to read the

statement to the prospective jurors. And based on our review of the

record, most of the prospective jurors’ concerns stemmed from the

facts contained in the statement, not the court’s comments about it.

For example, one prospective juror told the court that the content of

the statement left him feeling as though he “wouldn’t be fair for Mr.

Flynn.” Another explained that, given K.F.’s bruising and Flynn’s

admission to squeezing her too tight, he would “presume [Flynn

was] guilty right from the get-go.” To the extent Flynn complains of

prejudice that flowed from the substance of the Crim. P. 24

statement, he invited any error, and we will not consider his claim.

9
¶ 17 Setting the substance of the statement aside, Flynn argues

that “the court’s re-characterization of the Crim. P. 24 statement as

a preview of the trial evidence lessened the prosecutor’s burden of

proof at trial and evaporated the presumption of innocence.” Flynn

focuses on three comments made by the court during voir dire, so

we do the same.

1. What “Led to these Charges”

¶ 18 First, immediately after reading the Crim. P. 24 statement

aloud to the venire, the district court framed it as “a little synopsis

of how — or what I think eventually led to these charges.” Flynn

contends that the court’s comment improperly instructed the venire

that “the defendant’s actions, as described in the Crim. P. 24

instruction, were what led to the charges in the case.”

¶ 19 Flynn cites People v. Estes, which held that courts should

avoid suggesting that a defendant “did something” to be charged

with a crime. 2012 COA 41, ¶ 10. But the Estes division also

explained that the risk that such comments “lessened the

prosecution’s burden of proof or refuted the presumption of

innocence” may be “mitigated by the court’s written jury

instructions and other statements correctly explaining the

10
applicable burdens and presumptions.” Id. at ¶ 12. Because the

district court repeatedly and correctly explained the appropriate

burdens and presumptions to the jurors, we conclude there is no

reasonable likelihood that the jury understood the comment as

lowering the burden of proof. See id.; Tibbles, ¶ 43.

¶ 20 During voir dire, the court

• explained that allegations brought by the prosecution “are

not proof of anything because certainly they can file a

complaint against anybody, but they have to prove the

allegations . . . by proof beyond a reasonable doubt”;

• explained that “any person who’s accused by a prosecutor

in the United States enjoys what is called the presumption

of innocence”;

• correctly instructed the venire on the definition of

reasonable doubt and explained that the prosecution’s

burden of proof “goes to every element of an offense, not

just some of them”;

• encouraged the jury to avoid thinking of the “allegations” as

things “this person did” but rather as “what this person’s

11
accused of” or “what this person’s presumed to be innocent

of”; and

• reminded the venire that the charges against Flynn “are not

proof of anything” and it should “not . . . infer anything”

from the charges, reiterating that “the prosecution bears the

burden of proving these [charges] by proof beyond a

reasonable doubt.”

¶ 21 The court also gave a complete set of standard instructions to

the jury at the close of evidence, which included the following:

• “The charges against Mr. Flynn are just accusations” and

“[t]he fact that Mr. Flynn has been accused is not evidence

that Mr. Flynn committed any crime.”

• “Every person charged with a crime is presumed innocent”

and the “presumption of innocence remains with Mr. Flynn

throughout the trial and should be given effect by you

unless, after considering all the evidence, you are then

convinced that Mr. Flynn is guilty beyond a reasonable

doubt.”

• “The burden of proof is upon the prosecution to prove to the

satisfaction of the jury beyond a reasonable doubt the

12
existence of all of the elements necessary to constitute the

crimes charged.”

• The legally correct definition of “reasonable doubt.”

• The theory of Flynn’s defense that “his statements in his

interview and the text messages to [Mother] show him

feeling responsible for his injured child, not confessing to

child abuse.”

¶ 22 On this record, even if we presume that the court’s single

inartful comment to the prospective jurors suggested Flynn “did

something” to bring about the charges, its repeated instructions

accurately explaining the burdens and presumptions eliminated

any risk that the jury believed it could convict based on a standard

lower than beyond a reasonable doubt. See Estes, ¶ 12; Tibbles,

¶ 43.

2. “[T]he Evidence Is Going To Be What It Is Here”

¶ 23 Second, when responding to a juror who expressed concerns

about the content of Flynn’s Crim. P. 24 statement, the district

court noted that it “had a little hesitancy reading [the statement]

because the evidence is going to be what it is here.” (Emphasis

added.) Flynn argues that the court recharacterized the statement

13
as a preview of the trial evidence and consequently “lessened the

prosecutor’s burden of proof . . . and evaporated the presumption of

innocence” as a result.

¶ 24 We do not read the court’s comment as Flynn does. The court

did not improperly suggest to the prospective jurors that the

content of the Crim. P. 24 statement was the evidence on which

they should base their verdict. Rather, the court’s comment that

“the evidence is going to be what it is here” is more reasonably

understood as distinguishing the Crim. P. 24 statement from the

evidence that would be presented “here” — that is, in the courtroom

during trial. For example, immediately after making the comment,

the court asked a prospective juror if they would “have trouble

waiting to hear what [the] People have to say about this in detail?”

And when another juror voiced concern, the court asked, “You

couldn’t wait to hear the evidence first?” The court repeatedly

reminded the venire that it “[had not] heard any evidence yet” and,

unless the prosecution proved the charges beyond a reasonable

doubt, the verdict must be not guilty.

¶ 25 Even so, we conclude that there is no reasonable likelihood

that the jury understood the comment to lower the prosecution’s

14
burden of proof. See Tibbels, ¶ 43. Before introducing the Crim.

P. 24 statement, the court correctly explained that the statement

was “a little summary of what the allegations are on the case” and

that the jury is “to make [its] decisions based on the evidence that’s

presented or lack of evidence that’s presented whatever the case

might be.” And as noted, the court correctly instructed the jury on

the applicable burdens and presumptions repeatedly during voir

dire and in its closing instructions.

3. Bench Conference with a Prospective Juror

¶ 26 Third, during a bench conference with an individual member

of the venire who expressed concerns about Flynn’s admissions in

the Crim. P. 24 statement, the district court asked, “I mean, he said

(indiscernible) squeezed the baby and (indiscernible). He didn’t say

he broke the baby’s bones, but he squeezed . . . does that make a

difference?” Flynn argues that the court’s comments “invited the

venire members to pre-deliberate with the court on this previewed

evidence.” But because the comment was made to a single

prospective juror who was subsequently dismissed and was not

heard by the remaining venire members, we conclude there is no

15
possibility that the jury understood the comment to invite pre-

deliberation or to lower the burden of proof.

III. Potential Jury Misconduct

¶ 27 Flynn contends that the district court abused its discretion by

refusing to dismiss a juror who was involved in a verbal altercation

with another juror. We are not persuaded.

A. Additional Background

¶ 28 On the final day of trial, the district court received a note from

Juror Be. detailing an argument that she had with Juror Bu.

According to the note, Juror Bu. “verbally attacked” Juror Be. after

she made a comment about the price of gas. According to the note,

Juror Be. attempted to continue the conversation but Juror Bu.

“became more verbally abusive” and told Juror Be. to “shut up.”

The note continued, “At that point, I quit talking and had to get up

and walk around to settle my inner stress/upset. So I was unable

to give my complete attention while the witnesses were testifying.”

As the parties requested, the court interviewed the two jurors to

determine what had happened.

¶ 29 During her interview, Juror Be. expressed concerns about

sharing her opinion in jury deliberations given her interaction with

16
Juror Bu. Following the interview, the court noted that it was

concerned by Juror Be.’s statement that “[she] was unable to give

[her] complete attention while the witnesses were testifying.” The

court explained, “It’s clear that she was startled by this other juror’s

interaction with her.” “[O]ut of an abundance of caution,” the court

excused Juror Be.

¶ 30 During his interview, Juror Bu. shared that the conflict had no

impact on his ability to listen to the evidence. When asked whether

the conversation left him with any concerns about the eventual

deliberations in the case, Juror Bu. responded that “[t]he

conversation had nothing to do with the case,” adding that “[Juror

Be.] would not let it go. . . . I put it aside. Apparently she did not

put it aside.”

¶ 31 Following the interview, defense counsel asked that Juror Bu.

be removed from the jury because “someone who has a history or

just very recently engaged in behavior that intimidated another

juror really concerns me in terms of the jury as a whole being able

to reach a verdict[.]” Defense counsel continued, “[B]ut also with

each juror . . . not being overborne or coerced into a position that

17
they don’t necessarily agree with because of someone’s strong or

forceful attitude or intimidating factors.”

¶ 32 The district court denied Flynn’s request:

I'm not going to excuse [Juror Bu.] I mean . . .
he says that he can deliberate. I think it’s a
concern that everybody has in jury selection is
that . . . there’s going to be a difference of
personalities in the jury rooms. . . . [S]ome
jurors might be more overbearing than others.
You’ve all seen, I’m sure as lawyers, the movie
“12 Angry Men,” and there are certainly very
overbearing personalities in that movie [and]
that jury worked through it. . . . I guess if I
was concerned that there would be some type
of harm coming to the jurors because of some
disagreement, that might be different. I don’t
see that as the case here. He viewed the
interaction differently than [Juror Be.] She
obviously was impacted by it, and it affected
her ability to listen carefully to the testimony
of the witnesses this morning, which is why I
excused her. But I don’t see any reason on the
record here to strike [Juror Bu.] and then
replace him with an alternate.

B. Standard of Review and Applicable Law

¶ 33 We review a trial court’s decision to excuse a juror for

misconduct for an abuse of discretion. People v. King, 121 P.3d

234, 241 (Colo. App. 2005). A court abuses its discretion when its

ruling is manifestly arbitrary, unreasonable, or unfair, or when it

misapplies the law. People v. Sims, 2019 COA 66, ¶ 44.

18
¶ 34 Jury misconduct that materially affects the substantial rights

of a party and prevents a fair and impartial trial may serve as

grounds for a new trial. People v. Evans, 710 P.2d 1167, 1168

(Colo. App. 1985). Such claims require the defendant to “establish

that he was prejudiced by the misconduct in order to overturn his

conviction, and the prejudicial impact of the misconduct is a

question of fact to be determined in light of all the circumstances of

the trial.” Id.

C. The District Court Did Not Abuse its Discretion by Retaining
Juror Bu.

¶ 35 When Juror Be. notified the district court of an alleged

instance of juror misconduct, the court paused the proceedings and

conducted individual interviews with the two jurors involved.

Because Juror Be. indicated that the conflict had impaired her

ability to consider the evidence, the court excused her. Conversely,

because Juror Bu. indicated that the conflict had not affected his

ability to consider the evidence, the court did not excuse him.

¶ 36 Flynn argues that the court erred by focusing its decision to

retain Juror Bu. on his ability to consider the evidence.

Specifically, he contends that the court (1) failed to consider

19
whether Juror Bu.’s alleged aggression was gender-based; (2) failed

to interview the remaining jurors to determine whether they

witnessed the argument or were impacted by it; and (3) applied an

erroneous “12 Angry Men” standard. We reject these contentions.

¶ 37 First, the record is devoid of any evidence that the conflict

between Jurors Be. and Bu. was influenced by gender. True, Juror

Bu. was male and Juror Be. was female. But Juror Be. did not

suggest to the court that Juror Bu. argued with her because of

gender. When asking for Juror Bu. to be removed from the jury,

defense counsel did not raise gender bias. And Flynn fails to point

to any record support for this claim. Flynn’s argument that gender

influenced the conflict between Jurors Be. and Bu. is speculative

and does not support a claim that the court abused its discretion by

not considering whether Juror Bu.’s alleged aggression was gender-

based.

¶ 38 Second, the record also fails to reveal that any other juror

observed the conflict between Jurors Be. and Bu., let alone was

affected by it. Defense counsel contemporaneously expressed a

concern with the potential for Juror Bu.’s “strong and forceful

attitude” to impact the jury’s ability to reach a verdict, but that

20
concern focused on the personality dynamics that might arise

during deliberations rather than on whether any other juror had

witnessed or been influenced by the argument between Jurors Be.

and Bu. Defense counsel did not suggest that another juror had

seen the argument and did not ask the court to question the other

jurors about the incident. In the absence of these prompts, we

cannot conclude that the court abused its discretion by not

interviewing the remaining jurors to determine whether they saw

the argument or were impacted by it.

¶ 39 Finally, the court did not apply a “12 Angry Men” standard to

its decision as Flynn suggests. Rather, the court merely pointed to

the film to illustrate that personality conflicts sometimes occur

during jury deliberations. In fact, the court’s reference suggests

that it considered the potential impact of Juror Bu.’s demeanor on

other jurors, despite Flynn’s argument otherwise. Because the

district court was better positioned to observe how the juror’s

demeanor and conduct may have impacted deliberations, we defer

to its conclusion that Juror Bu. was able to serve without having an

outsized influence on his fellow jurors. Cf. People v. Blassingame,

2021 COA 11, ¶ 23 (because trial courts can observe the dynamics

21
of voir dire and personally evaluate the juror’s tone and demeanor,

we defer to its judgment as to whether it believes a particular juror

can render a fair and impartial verdict).

¶ 40 In the end, we perceive no prejudice flowing from the district

court’s decision to retain Juror Bu. The record demonstrates that

the conflict was limited to the two jurors whom the court

questioned, the disputed topic had nothing to do with Flynn’s case,

and Juror Bu. did not make any threats or engage in abusive

conduct. The record does not reflect that Juror Bu. had a conflict

with any other juror or improperly influenced jury deliberations.

IV. Sufficiency of the Evidence

¶ 41 Flynn contends that the evidence presented at trial was

insufficient to prove beyond a reasonable doubt that his conduct

caused K.F. to stop breathing on March 29, 2020. We disagree.

A. Standard of Review and Applicable Law

¶ 42 When a defendant raises a challenge to the sufficiency of the

evidence, “[w]e review the record de novo to determine whether the

evidence before the jury was sufficient both in quantity and quality

to sustain the defendant’s conviction.” Johnson v. People, 2023 CO

7, ¶ 13 (citation omitted). “It does not matter whether we might

22
have reached a different conclusion were we the trier of fact.”

People v. Liebler, 2022 COA 21, ¶ 14. Rather, “[t]he pertinent

question is whether, after viewing the evidence in the light most

favorable to the prosecution, a rational trier of fact could have

found the essential elements of the crime beyond a reasonable

doubt.” Id. (quoting Clark v. People, 232 P.3d 1287, 1291 (Colo.

2010)). The verdict must be supported by more than “guessing,

speculation, conjecture, or a mere modicum of relevant evidence.”

People v. Perez, 2016 CO 12, ¶ 25. But in determining the

sufficiency of evidence, the law makes no distinction between direct

and circumstantial evidence. People v. Buckner, 2022 COA 14,

¶ 83.

¶ 43 Flynn was convicted of one count of child abuse resulting in

serious bodily injury. Under section 18-6-401(1)(a), C.R.S. 2024,

A person commits child abuse if such person
causes an injury to a child’s life or health, or
permits a child to be unreasonably placed in a
situation that poses a threat of injury to the
child’s life or health, or engages in a continued
pattern of conduct that results in
malnourishment, lack of proper medical care,
cruel punishment, mistreatment, or an
accumulation of injuries that ultimately
results in the death of a child or serious bodily
injury to a child.

23
B. The Evidence Was Sufficient to Support Flynn’s Conviction

¶ 44 Flynn does not dispute that K.F. suffered serious bodily injury

when she stopped breathing on March 29, 2020. Instead, he

contends that the prosecution failed to prove beyond a reasonable

doubt that his conduct caused K.F. to stop breathing. Citing to the

testimony of the prosecution’s expert witness, Dr. Jenna Rosenthal,

Flynn argues that “even the most expert witness was unable to

determine what caused K.F. to temporarily lose her breath” that

day.

¶ 45 Although no single witness testified that K.F. stopped

breathing on March 29 because Flynn squeezed her too tightly, the

prosecution presented the following evidence at trial:

• Dr. Rosenthal determined after reviewing K.F.’s medical

records — including records from her family physician, the

radiologist, and the attending physician — that the bruising

and fractures K.F. suffered were “the result of child abuse.”

• Flynn was alone with K.F. when she stopped breathing on

March 29 and had been alone with her when she stopped

breathing on two prior occasions.

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• K.F.’s mother testified that she did not notice any unusual

bruises or marks on K.F. when changing her earlier in the

day on March 29.

• Flynn made incriminating statements to the investigator

including, “I get too upset and too frustrated and don’t

realize what I’m doing to the point where I hurt her”; “I

know it’s my fault. I know it is”; and “[I]t’s always happened

in my possession. It . . . has to be me.”

• K.F.’s mother testified that Flynn held K.F. “too tightly” on

multiple occasions, often when he was “too frustrated or he

was too upset.”

• Other household members testified that they witnessed

Flynn holding K.F. too tightly. One even described Flynn’s

treatment of K.F. as “cruel.” Another testified that Flynn

was dismissive of his concerns after she told Flynn he was

holding K.F. “a little bit too tight.”

• K.F.’s family physician testified that, while he initially

classified K.F.’s first two stop-breathing events as “BRUE,”

after learning of the third event on March 29, he wrote a

25
letter to "Child Protective Services expressing his concerns

regarding K.F.’s safety.

¶ 46 We recognize that the evidence presented was largely

circumstantial. But viewing this evidence collectively and in the

light most favorable to the prosecution, we conclude that it was

substantial and sufficient for a reasonable jury to find beyond a

reasonable doubt that Flynn caused K.F.’s serious bodily injury on

March 29, 2020. See People v. Christian, 632 P.2d 1031, 1038

(Colo. 1981) (expert medical testimony that child’s injuries were

nonaccidental, combined with circumstantial evidence that injuries

occurred during a time when defendant was alone with the child,

was sufficient to support conviction for felony child abuse).

V. Disposition

¶ 47 We affirm the judgment of conviction.

JUDGE WELLING and JUDGE MOULTRIE concur.

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