dissenting.
I respectfully dissent.
Given the circumstances of this case, the trial court’s instruction, which adopted the holding of our supreme court in People v. Noble, 635 P.2d 203 (Colo.1981), was proper. Although the General Assembly had changed the provisions of § 18-6-401(1), C.R.S. prior to the decision in People v. Noble, supra, that decision was based on the statute as it had existed prior to amendment. However, the court in Noble, supra, was fully aware that the statute had been changed, and its definition of “knowingly” applied to both versions of the statute. It held that the prosecution is required “to prove beyond a reasonable doubt the defendant’s awareness that his physical actions toward the child were such as to endanger the child’s life or health or to cruelly punish the child.”
In People v. Noble, supra, as here, the defendant was acquitted of both extreme indifference murder and second degree murder, but was convicted of felony child abuse based upon an instruction which defined the offense only in terms of conduct and circumstances and not in terms of result. In both cases, the result which occurred was the death of the child. Noble is not rendered inapplicable by the fact that the prosecution here proceeded under the revised version of § 18-6-401(7)(a)(I), C.R.S. (1984 Supp.), in which a knowing act of child abuse resulting in the death of the child constitutes a Class 2 felony.
*975The child abuse statute does not require that the mental state of “knowingly” apply to the result. Rather, it clearly states that the mental state of “knowingly” applies only to the conduct involved. The penalty is based on the mental state of the actor during his conduct and on the ultimate injury to the child.
Child abuse contemplates inaction as well as action; therefore, an actor may knowingly inflict cruel punishment on a child through inactivity. See People v. Jennings, 641 P.2d 276 (Colo.1982). Here, defendant’s inaction in failing to provide assistance or information regarding a child he knew had been seriously injured constituted an act of felony child abuse regardless of the defendant’s specific awareness of the certainty of death. See People v. Taggart, 621 P.2d 1375 (Colo.1981). And, since the child’s death was caused by defendant’s inaction, it was unnecessary to define “knowingly” in terms of result. See People v. Romero, 689 P.2d 692 (Colo.App.1984).
Alternatively, the evidence of defendant’s guilt is so overwhelming that, even under the majority’s analysis of the statute, any error in the instruction was harmless.
Defendant, six-feet five-inches tall and weighing 160 pounds, testified that he was caring for the three-month-old victim and her two-year-old brother while their mother, his girlfriend, was taking a shower. At approximately 10:00 a.m. two women came to the apartment to purchase marijuana. When defendant went into the bedroom to obtain his marijuana, he reached high into a closet, slipped, and fell backward. His foot landed on the victim, who was lying on the floor propped up on a pillow. Defendant testified that the victim appeared to be stunned, but he nevertheless left the room and completed the drug transaction.
Thereafter, two soldiers came to the door and indicated that they wanted to buy some marijuana as well. Defendant smoked some marijuana with them and then completed the sale. The victim had begun crying shortly after the arrival of these purchasers, but defendant did not check on her until after their departure.
He brought the baby into the living room, laid her down on the floor, and counted his money from the drug transactions. He noticed that the baby’s lips were purple and that her hands and face were very cold, even though the temperature in the apartment was very warm.
The victim’s mother came out of the shower and asked defendant what was wrong with the baby. Defendant told her he did not know, even though he testified that he knew then the child had suffered serious injury. When the victim’s mother attempted to nurse the baby, the baby refused, and appeared to be trying unsuccessfully to cry. The victim’s mother then stated that she was going to take the baby to the hospital, but defendant made no effort to attempt to obtain a ride for them or to secure emergency assistance. After two hours, the victim’s mother was able to obtain a ride to the hospital, and defendant and the victim’s two-year-old brother stayed at the apartment for a short time, then played video games at an arcade.
Defendant arrived at the hospital at approximately 5:30 p.m., and was told that the victim’s injuries were very serious and that hospital personnel believed that the child had been abused. He was aware that exploratory surgery was being performed because the physicians were unable to determine what had caused the child’s injuries. Even though he was repeatedly asked, he told no one what had happened to the victim. Indeed, defendant did not discuss his role in the incident until several months later.
The victim died later that night. The evidence established that, had she received medical attention within 10 to 15 minutes of her injury, she would have lived.
The defendant admitted that when the victim’s extremities became cold and her lips turned purple in the apartment, he was aware she had sustained serious injuries as a result of his fall. For six hours he refused to answer repeated questions from *976her mother about what had occurred. He made no attempt to telephone for help or to obtain a ride to the hospital. Instead he counted the money from his marijuana sales and played video games. This conduct establishes his culpability even under the majority’s view that the mental state of “knowingly” applies to the result.
Consequently, regardless of the analysis used, I would affirm the conviction.