     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


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  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


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  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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