State v. Merrill

IN THE UTAH COURT OF APPEALS

‐‐‐‐ooOoo‐‐‐‐

State of Utah, ) OPINION
)
Plaintiff and Appellee, ) Case No. 20080908‐CA
)
v. ) FILED
) (January 6, 2012)
Trevor Merrill, )
) 2012 UT App 3
Defendant and Appellant. )

‐‐‐‐‐

Third District, West Jordan Department, 071400722
The Honorable Mark S. Kouris

Attorneys: Nathan N. Jardine and Stephen W. Howard, Salt Lake City, for
Appellant
Mark L. Shurtleff and Jeanne B. Inouye, Salt Lake City, for Appellee

‐‐‐‐‐

Before Judges McHugh, Orme, and Thorne.

THORNE, Judge:

¶1 Defendant Trevor Merrill was charged with criminal homicide, child abuse
homicide, a third degree felony, see Utah Code Ann. § 76‐5‐208 (2003), and reckless
endangerment, a class A misdemeanor, see id. § 76‐5‐112.1 Merrill seeks interlocutory

1
Echo Nielsen was also charged with criminal homicide, child abuse homicide,
and reckless endangerment in this case. Likewise, Nielsen appeals from the district
court’s bindover decision. Because she raises additional arguments in her appeal it is
handled in a separate decision.
review of the district court’s denial of his motion to quash the bindover on those
charges. We affirm.

BACKGROUND

¶2 On August 18, 2006, Merrill went to sleep in the same bed with his three and a
half month old son and the infant’s mother Echo Nielsen.2 The infant was allegedly
situated between Merrill and Nielsen.3 Sometime later, Merrill woke to discover that
the infant was not breathing. Merrill attempted to perform CPR on the infant and

2
The parties use the term co‐sleeping to describe this sleeping arrangement. We
acknowledge that there are other terms to describe this arrangement but for simplicity
elect to use the same term as the parties.
3
Regarding the infant’s sleeping position, the State proffered the testimony of
Detective Eric Anderson, Officer Michelle Chase, and Detective Alexis Van Wagoner.
The State asserts that Detective Anderson would testify that
[Merrill] said the baby was on his chest, but that [Nielsen]
told the detective that she took the child to bed with her, that
[Merrill] joined shortly after she took the child to the bed,
. . . . That [Nielsen] was on the right side and that [Merrill]
was on the left side and that [the child] was in between
them, on his back. And that they had laid a blanket on top
of [the child].
The State proffered testimony of Officer Chase that when she encountered Merrill in the
home, he had a bloody nose and blood on his shirt and had explained that his father
had given him the bloody nose, and that Officer Chase would testify that “Merrill told
Officer Chase that he had the baby, . . . on his chest and that when [Merrill] woke up,
that’s when he realized the child wasn’t breathing.” The State further proffered that
Detective Van Wagoner would testify that
[s]he observe[d]–[Detective Van Wagoner] observe[d] blood
on the baby’s face and [Merrill] said the baby was on his
chest. It’s unclear from the police report whether that means
that the baby was on the baby’s chest or whether the baby
was lying chest‐to‐chest or that the baby was lying with the
baby’s back to the father’s chest. That’s unclear.

20080908‐CA 2
emergency personnel were called. The infant died. Utah State Deputy Chief Medical
Examiner Edward A. Leis, M.D. performed an autopsy on the infant. Dr. Leis listed
several possible pathologic diagnoses in the examination report including positional
asphyxia, aseptic (chronic) meningitis, and premature birth at thirty‐three weeks
gestation. Ultimately, Dr. Leis certified the cause and manner of death as
undetermined.

¶3 In 2007, both Merrill and Nielsen were charged with criminal homicide, child
abuse homicide and reckless endangerment. The magistrate held a consolidated
preliminary hearing wherein the State’s witnesses Dr. Leis, Dr. Valerie Rahaniotis,4 and
Trevor Merrill’s father, Steven Merrill, testified. The State also proffered the testimony
of four other witnesses.

¶4 Dr. Leis testified that, in his opinion, the most likely cause of death was
“positional asphyxia based upon the age of the child and the fact that [the child] was
originally placed on [his] back and now [the child is] found in a face‐down position on a
bed.” Dr. Leis explained that the reason he certified the cause and manner of death as
undetermined was because he could not

say with certainty that one event most likely explains the
death as opposed to the other. I guess I phrased that wrong.
I can’t say with certainty that I would say a specific event
that took place caused the death of this individual, even
though earlier, I said most likely it was positional asphyxia,
the presence of aseptic meningitis as a risk factor for causing
the death of this child, even though slim, is still a possibility
and I can’t make a distinction between those two events, and
therefore, I certified it as undetermined causes.

Thereafter, the State requested time to prepare and submit its closing arguments to the
court, which the magistrate granted and scheduled a subsequent oral argument hearing.
After oral arguments, the magistrate found sufficient evidence to support the probable
cause statement and bound the two defendants over for trial on both charges.

4
Dr. Rahaniotis was the infant’s pediatrician, who last examined the infant on
August 18, 2006.

20080908‐CA 3
¶5 Both Merrill and Nielsen asked the district court to quash their bindovers
arguing insufficiency of the evidence and other constitutional issues. The court
conducted oral arguments on the parties’ motion to quash. The court determined that
the State had met the low burden of a preliminary hearing and denied the defendants’
motion to quash. Both Merrill and Nielsen appeal. We address Merrill’s appeal in this
decision.

ISSUES AND STANDARDS OF REVIEW

¶6 Merrill claims that the district court erred in denying his motion to quash the
bindover on the child abuse homicide charge, arguing first that the court improperly
permitted Dr. Leis’s testimony, second that there was no evidence to demonstrate that
Merrill actually caused the death, and third that there was no evidence that he had
abused the infant. Merrill also argues that the court should have quashed the bindover
on the reckless endangerment charge because first, the State did not establish that co‐
sleeping created a substantial and unjustifiable risk of death and second the State did
not show that Merrill’s actions constitute a gross deviation from a standard of care that
an ordinary person would exercise. Finally, Merrill argues that both charges should be
quashed because the court violated his rights under the equal protection and due
process clauses of the United States Constitution and the Utah Constitution by placing
him in a separate class from the general public by finding that the risk he created by co‐
sleeping with the infant was significantly higher than other parents who co‐sleep with
their infants.

¶7 “To support bindover the [s]tate must establish probable cause. In order to
establish probable cause, the [state] must produce evidence sufficient to support a
reasonable belief that the defendant committed the charged crime.” State v. Droesbeke,
2010 UT App 275, ¶ 13, 241 P.3d 772 (alterations in original) (internal quotation marks
omitted). “This matter presents a mixed question of law and fact because a decision to
bind a defendant over for trial includes the application of the appropriate bindover
standard to the facts presented in [this] case.” Id. ¶ 14 (alteration in original) (internal
quotation marks omitted). “[I]n reviewing a . . . bindover decision, [we] should afford
the [lower court’s] decision limited deference.” Id. (second and third alterations and
omission in original) (internal quotation marks omitted).

20080908‐CA 4
 ANALYSIS

¶8 Merrill asserts that the district court made numerous errors in denying his
motion to quash the bindover on the child abuse homicide and reckless endangerment
charges. The Utah Supreme Court has explained on several occasions what review of
the bindover should constitute. “To bind a defendant over for trial, the State must show
probable cause at a preliminary hearing by present[ing] sufficient evidence to establish
that the crime charged has been committed and the defendant committed it.” State v.
Graham, 2006 UT 43, ¶ 17, 143 P.3d 268 (alteration in original) (internal quotation marks
omitted). “[T]he prosecution has the burden to produce believable evidence of all the
elements of the crime charged, but this evidence does not need to be capable of
supporting a finding of guilt beyond a reasonable doubt.” State v. Virgin, 2006 UT 29,
¶ 20, 137 P.3d 787 (internal quotation marks omitted). The quantum of evidence
required to support a probable cause finding in a preliminary hearing is “relatively
low,” see State v. Clark, 2001 UT 9, ¶ 10, 20 P.3d 300. “[T]he quantum of evidence
necessary to support a bindover is less than that necessary to survive a directed verdict
motion.” Id. ¶ 16.

¶9 To determine whether the evidence supports a reasonable belief that the
defendant committed each element of the crime, “[t]he magistrate must view all
evidence in the light most favorable to the prosecution and must draw all reasonable
inferences in favor of the prosecution.” Id. ¶ 10 (alteration in original) (internal
quotation marks omitted). The court should bind the defendant over for a trial “unless
the evidence is wholly lacking and incapable of reasonable inference to prove some
issue which supports the [prosecution’s] claim.” In re I.R.C., 2010 UT 41, ¶ 16, 232 P.3d
1040 (alteration in original) (internal quotation marks omitted). With these principles in
mind, we address Merrill’s bindover issues.

I. Bindover on the Child Abuse Homicide Charge

¶10 Merrill argues that the district court should have quashed the bindover on the
child abuse homicide charge because the court improperly allowed Dr. Leis’s testimony
and that there was no evidence that Merrill actually caused the death nor that he abused
the infant. Utah Code section 76‐5‐208(1) provides that a person commits child abuse
homicide if the individual causes the death of a person under eighteen and the death
results from child abuse as defined in section 76‐5‐109(1)(c). See Utah Code Ann. § 76‐5‐

20080908‐CA 5
208(1) (2003). Injurious conduct to a child done as a result of criminal negligence
constitutes child abuse under the statute. See id. § 76‐5‐208(1)(b).

A. Admissibility of Dr. Leis’s Medical Testimony

¶11 Merrill first argues that the district court improperly admitted Dr. Leis’s
testimony because Dr. Leis could not testify to a reasonable degree of medical certainty
with regard to either the cause or manner of the infant’s death. Merrill claims that
reasonable medical certainty is a threshold prerequisite for admissibility. In support of
this claim, Merrill asserts that Utah courts have not directly analyzed the relationship
between a reasonable degree of medical certainty and the probable cause requirement
of the preliminary hearing when making earlier decisions about admissibility. Merrill
argues that reasonable medical certainty is a necessary threshold prerequisite that many
other jurisdictions recognize.5 Merrill urges us to analyze the admissibility question,
arguing that a closer look will result in a different decision.

¶12 The Utah Supreme Court has, however, considered and allowed medical
examiner testimony in instances, similar to the case at hand, where the medical
examiner could not testify to a reasonable degree of medical certainty with regard to the
cause of death. See State v. Talbot, 972 P.2d 435 (Utah 1998). In State v. Talbot, 972 P.2d
435 (Utah 1998), the medical examiner testifying at a preliminary hearing could not
conclude to a medical certainty that the child’s injuries were the result of human causes
instead of a fall from her bunk bed. See id. at 438. The supreme court found that this
“fact [did] not call into question the examiner’s opinion that [the child’s] death was the
result of massive craniocerebral injuries inflicted upon her by an outside human force,

5
None of the cases Merrill cites apply the reasonable degree of medical certainty
as a threshold prerequisite for admissibility in the criminal preliminary hearing context
at issue in this case. See Fitzgerald v. Manning, 679 F.2d 341 (4th Cir. 1982) (civil medical
malpractice directed verdict case); Marron v. Stromstad, 123 P.3d 992 (Alaska 2005) (civil
negligence case); Palace Bar, Inc. v. Fearnot, 381 N.E.2d 858 (Ind. 1978) (civil wrongful
death case); Scott v. Blue Springs Ford Sales, Inc., 215 S.W.3d 145 (Mo. Ct. App. 2006)
(civil damages case); Klimple v. Bahl, 2007 ND 13, 727 N.W.2d 256 (civil damages case);
McMahon v. Young, 276 A.2d 534 (Pa. 1971) (civil causation case); Porter v. Green, 745
S.W.2d 874 (Tenn. Ct. App. 1987) (civil causation and damages case); Spruill v.
Commonwealth, 271 S.E.2d 419 (Va. 1980) (criminal case at trial stage).

20080908‐CA 6
to a degree that the opinion would not support a jury verdict.” Id. The supreme court
noted that the state had presented evidence that the defendant was the only adult
present with the capacity to inflict the injuries the child sustained. See id. at 439.
Instead of requiring that the medical examiner’s opinion evidence be rendered to a
degree of medical certainty before it could be admitted, the supreme court permitted
the magistrate to consider the evidence. See id. at 438‐39. The supreme court observed
that the magistrate must resolve all inferences in favor of the prosecution and reiterated
that “uncertaint[ies] regarding the cause of death” “‘should [be] left for the fact‐finder
to resolve at trial.’” Id. at 439 (second alteration in original) (quoting State v. Jaeger, 896
P.2d 42, 45 (Utah Ct. App. 1995)).

¶13 Additionally, the supreme court has found that, in a criminal prosecution, a
defendant should be allowed to introduce expert medical opinion evidence that does
not rise to a reasonable medical certainty but is, instead, based on a probability,
possibility, or likelihood, where the witness expresses statements in language which
sufficiently represents his or her own best judgment to a reasonable certainty. See State
v. Jarrell, 608 P.2d 218, 231‐32 (Utah 1980). In State v. Jarrell, 608 P.2d 218 (Utah 1980),
the supreme court discussed the general rule regarding the certainty of an expert’s
opinion. See id. at 230. The supreme court reiterated that an expert medical opinion
may be admitted at trial when it is “based on a probability, possibility, or likelihood
. . . whe[n] the witness[] expresse[s] statements in language which sufficiently
represented [his or her] own best judgment to a reasonable certainty.” Id. (considering
the issue of whether the trial court erred in requiring defense counsel to phrase his
question to a medical expert in terms of a “reasonable medical certainty or
probability”).

¶14 Applying these principles to this case, we determine that the district court did
not err in concluding that the medical examiner’s testimony of the manner and cause of
the infant’s death need not, in this instance, reach a level of reasonable medical certainty
before it may be admitted. In this case, Dr. Leis expressed his diagnosis in terms of
probability and testified that, based on his best judgment, the most likely cause of death
was positional asphyxia. Dr. Leis explained how he arrived at this “most likely cause of
death” diagnosis and why he could not confirm such with a reasonable medical

20080908‐CA 7
certainty.6 Dr. Leis’s testimony was conveyed in language which sufficiently
represented his best judgment based on knowledge garnered from his training and
professional experience.7 Because Dr. Leis stated his opinion in terms of probability
based on his best judgment, such testimony is admissible. See id. Under Talbot, any
remaining uncertainties regarding the infant’s cause of death do not render Dr. Leis’s
testimony inadmissible. Instead, any such uncertainties should be left for the trier of
fact to resolve. As a result, we determine that the district court did not err by admitting
Dr. Leis’s testimony.

B. Sufficiency of the Causation Evidence

¶15 Merrill next argues that even if Dr. Leis’s testimony is admissible, it is
speculative at best and as such the State presented insufficient evidence to demonstrate
that Merrill actually caused the infant’s death. To begin, we first consider whether Dr.
Leis’s testimony that the most likely cause of the infant’s death was positional asphyxia
is speculative. “Whether [an expert opinion] may be [asserted] merely in terms of
possibility depends on how closely possibility resembles speculation; so that ordinarily
the opinion should at least be stated in terms of probability if not absolute certainty.”
Jarrell, 608 P.2d at 230 (internal quotation marks omitted). “When the correlation
between the predicate facts and conclusion is slight, then the inference is less
reasonable, and at some point, the link between the facts and the conclusion becomes so
tenuous that we call it speculation.” State v. Hester, 2000 UT App 159, ¶ 17, 3 P.3d 725
(internal quotation marks omitted), abrogated in other part by State v. Clark, 2001 UT 9,
¶ 14, 20 P.3d 300.

6
Dr. Leis testified that he
said most likely [the cause of death] was positional asphyxia,
the presence of aseptic meningitis as a risk factor for causing
the death of this child, even though slim, is still a possibility
and I can’t make a distinction between those two events, and
therefore, I certified it as undetermined causes.
7
In his testimony, Dr. Leis explained his report and examination of the infant, the
possible ways in which an infant may die from asphyxiation, his personal observations
of lividity patterns in infants, his knowledge of the developmental milestones and their
relevance to the case at hand, and each of the possible causes of the infant’s death.

20080908‐CA 8
¶16 Here, Dr. Leis, in compliance with the principles outlined in Jarrell, conveyed his
testimony regarding the possible cause of the infant’s death, stating that in his opinion
the most likely cause of death was “positional asphyxia based upon the age of the child
and the fact that [the child] was originally placed on [his] back and now [the child is]
found in a face‐down position on a bed.” Dr. Leis explained that the reason he certified
the cause and manner of death as undetermined was because he could not say with
medical certainty that the infant died from positional asphyxia because the presence of
aseptic meningitis, though a slim chance, was still a possibility. Dr. Leis’s testimony
sufficiently represented his best judgment based on knowledge acquired from his
training and professional experience. Additionally, the nexus between the evidence
that the infant died in a face‐down position despite being too young to roll over by
himself and the conclusion that some external force had to be applied that shifted the
infant into a face‐down position, when viewed in the light most favorable to the
prosecution, is not so tenuous that we consider it speculative.

¶17 Having determined that Dr. Leis’s testimony was not speculative, we next
consider whether the State presented sufficient evidence to demonstrate that Merrill
actually caused the infant’s death. At the preliminary hearing, the State presented
evidence that the infant was originally placed on his back in the bed between Merrill
and Nielsen. When Merrill woke, the infant was not breathing and was found in a face‐
down position. Dr. Leis testified that the lividity pattern he observed in the infant
demonstrates that the infant,8 originally placed on his back, died in a face‐down
position. Dr. Leis further testified that the infant was too young to turn himself over
from his back to his stomach, so some external force had to be applied that shifted the
infant into a face‐down position. The State proffered testimony of a family member that
Merrill and Nielsen were heavy sleepers, which sound sleeping necessitated the
assistance of another person to provide care for the infant during the night. This
evidence, when viewed in a light most favorable to the prosecution and drawing all
reasonable inferences in favor of the prosecution, supports a reasonable inference that

8
Lividity, as Dr. Leis explained, refers to the discoloration of the skin caused by
the settling of blood in the body, after death, which discoloration is used in determining
the position of a body at the time of death. Dr. Leis further explained that, in his
experience, lividity patterns develop and become fixed much faster in infants and that
such lividity patterns could develop and become fixed up to an hour after an infant’s
death.

20080908‐CA 9
Merrill actually caused the infant to stop breathing by co‐sleeping, and allowing
Nielsen to co‐sleep with the infant, wherein the infant was shifted from his back to his
stomach.

¶18 On this basis, we conclude that the evidence is not unduly speculative and
supports a reasonable inference that Merrill caused the infant’s death sufficient to bind
Merrill over on the child abuse homicide charge. Whether said evidence is sufficient to
prove causation beyond a reasonable doubt is a separate question, one that is left to the
trier of fact. See In re D.K., 2006 UT App 461, ¶ 11, 153 P.3d 736.

C. Sufficiency of the Child Abuse Evidence

¶19 Merrill additionally argues that there is no evidence to demonstrate that he
abused the infant, without which evidence he cannot be bound over on the child abuse
homicide charge. Child abuse “means any offense described in Subsection (2),” which
section provides that “[a]ny person who inflicts upon a child serious physical injury or,
having the care or custody of such a child, causes or permits another to inflict serious
physical injury upon a child is guilty of an offense as follows: . . . (c) if done with
criminal negligence[.]” Utah Code Ann. § 76‐5‐109(1)(c), (2)(c) (Supp. 2006) (emphasis
added). A person engages in conduct with

criminal negligence or is criminally negligent with respect to
circumstances surrounding his conduct or the result of his
conduct when he ought to be aware of a substantial and
unjustifiable risk that the circumstances exist or the result will
occur. The risk must be of a nature and degree that the
failure to perceive it constitutes a gross deviation from the
standard of care that an ordinary person would exercise in all the
circumstances as viewed from the actor’s standpoint.

Id. § 76‐2‐103(4) (2003) (emphases added).

¶20 Merrill asserts that he did not commit child abuse because co‐sleeping with an
infant does not create a substantial and unjustifiable risk of injury or death to an infant
nor does it constitute a gross deviation from the standard of care that an ordinary
person would exercise. Merrill claims that co‐sleeping with an infant presents no
greater risk than that of transporting an infant in a car. In support of this claim, Merrill

20080908‐CA 10
asserts that the percentage of the total population dying in motor vehicle accidents is
just over 0.013%, while the percentage of infants, in 2006, who died of suffocation in bed
was just under 0.0006%.9 Merrill argues that any risk from his decision to co‐sleep with
and permit Nielsen to co‐sleep with the infant was justified by the benefits of co‐
sleeping. Relying on Dr. Leis’s preliminary hearing testimony, Merrill also claims that
because approximately 25‐50% of parents are co‐sleeping with their infant or young
children, the practice of co‐sleeping cannot be a gross deviation from the standard of
care.

¶21 The State asserts that Merrill’s statistical comparisons are not entirely accurate,10
not supported, and not necessarily applicable because the State is not asserting that any
two sleepers whose infant dies of positional asphyxiation are negligent for sleeping
with the infant. Rather, what is claimed is that these two individuals co‐sleeping with
an infant under the circumstances in this case posed a substantial risk to the infant. The
State asserts that the circumstances in this case—that Merrill and Nielsen were heavy

9
Merrill obtained this comparison from statistics outlined in a Department of
Health publication, Vital Statistics Births and Deaths 2006. Merrill submitted this
publication into evidence as Defense Exhibit #1.
10
The State asserts that Merrill did not accurately calculate the percentage of
infants who die of suffocation each year, which percentage is more accurately 0.006%
and not 0.0006% based on the statistic of three deaths out of 53,475. The State also
asserts that this statistic does not accurately reflect the number of infant suffocation
deaths because, Dr. Leis testified, that number does not include sudden infant death
syndrome deaths.
The State further asserts that Merrill overstates the evidence presented regarding
the percentage of parents who co‐sleep with either an infant or child. The State clarifies
that defense counsel questioned Dr. Leis about the percentage of parents who co‐sleep
with their infant. Dr. Leis responded that he was not aware of the exact statistic.
Defense counsel, then asked, “But overall, the percentage of parents who practice co‐
sleeping is somewhere between 25 and 50 percent?” Dr. Leis responded, “That’s
probably reasonable.” Such percentage, the State asserts is not useful because it does
not reveal how many parents actually co‐sleep with an infant as opposed to an older
child.

20080908‐CA 11
sleepers11 who had previously accidentally caused the death of an infant after having
been put to bed lying on her back between Merrill and Nielsen—12 demonstrate that
Merrill’s co‐sleeping decision posed a substantial risk of death to the infant. Further,
that an ordinary person, viewing the circumstances from Merrill’s standpoint, would
not co‐sleep with another infant or allow another person to do so.

¶22 Although many parents may successfully co‐sleep with an infant, the risks
associated with co‐sleeping will likely vary based on the circumstances, i.e., the
presence or absence of asserted risk factors. The circumstances in this case demonstrate
that Merrill and Nielsen were heavy sleepers that had not awoken when one or the
other previously accidentally caused the death of their infant daughter who was co‐
sleeping between them. A magistrate could reasonably infer from this evidence that
Merrill, by establishing the same sleeping environment with his infant son that
accidentally caused the previous death of an infant daughter, created a substantial and
unjustifiable risk that the infant son would be seriously physically injured. We
recognize that there is no statistical evidence to demonstrate that a previous death by
co‐sleeping is, in fact, a risk factor associated with an increased risk of death by co‐
sleeping. However, the magistrate must view the evidence in the light most favorable
to the prosecution and must draw all reasonable inferences in favor of the prosecution.
See State v. Robinson, 2003 UT App 1, ¶ 5, 63 P.3d 105. With these principles in mind, it
is reasonable for the magistrate to infer that by creating the same sleeping environment
for the infant son, without making any effort to decrease the risk factors that
accidentally caused the death of an infant daughter, there was a substantial and
unjustifiable risk of serious physical injury to the infant.

¶23 In the alternative, Merrill argues that any risk he created by co‐sleeping with the
infant was not of a “nature and degree that the failure to perceive it constitutes a gross

11
In support of this assertion the State proffered evidence that Nielsen’s sister,
Jessie Campbell, would testify at trial that she was the primary caretaker of the infant
and that because both Merrill and Nielsen were heavy sleepers, Campbell would
usually get up with the infant when he woke up at night.
12
Merrill mentions in his brief that his defense counsel, in the preliminary
hearing, objected to admission of evidence relating to the previous co‐sleeping death of
his infant daughter. Other than this reference to a previous objection, Merrill does not
provide any argument that the district court erred in admitting said evidence.

20080908‐CA 12
deviation from the standard of care that an ordinary person would exercise in all the
circumstances as viewed from the actor’s standpoint.” See Utah Code Ann. § 76‐2‐
103(4). The State presented evidence of the previous co‐sleeping death and testimony
from Dr. Leis who stated that “if I knew that I had a previous infant that died while
sleeping in the same bed as me, . . . I wouldn’t take that risk [with] future children, and
[I] would place them some place safe . . . .” Based on the evidence presented in this
case, the magistrate could reasonably infer that an ordinary person, who like Merrill
was a heavy sleeper that did not wake when he accidentally caused the death of an
infant daughter, would not co‐sleep with another infant in the same sleeping
environment that accidentally caused a previous co‐sleeping death. As a result, we
determine that the magistrate correctly concluded that the State had demonstrated that
Merrill’s conduct constituted a gross deviation from the standard of care that an
ordinary person would exercise under the circumstances.

¶24 Thus, we affirm the district court’s decision to bind Merrill over on the child
abuse homicide charge.

II. Bindover on the Reckless Endangerment Charge

¶25 Merrill also challenges the bindover of the reckless endangerment charge. In
Utah, a person commits reckless endangerment if “under circumstances not amounting
to a felony offense, the person recklessly engages in conduct that creates a substantial
risk of death or bodily injury to another person.” Utah Code Ann. § 76‐5‐112(1) (2003).
A person engages in conduct recklessly

when he is aware of but consciously disregards a substantial and
unjustifiable risk that the circumstances exist or the result will
occur. The risk must be of such a nature and degree that its
disregard constitutes a gross deviation from the standard of
care that an ordinary person would exercise under all the
circumstances as viewed from the actor’s standpoint.

Id. § 76‐2‐103(3) (emphasis added).

¶26 Merrill’s first of two arguments essentially advances the same issues as the
criminal negligent conduct discussed above in the child abuse homicide section of this
opinion. The difference between “reckless and criminally negligent conduct is that
under the former, one perceives a risk and consciously disregards it, whereas under the

20080908‐CA 13
latter, one fails to even perceive the risk . . . . The distinction, then, is merely one of the
degree of perception of the risk.” State v. Robinson, 2003 UT App 1, ¶ 6 n.2, 63 P.3d 105
(internal quotation marks omitted). Merrill neither asserts that he was unaware of the
risk nor attempts to refute that the evidence presented demonstrates that he was aware
of the risk his actions posed.13 Instead, Merrill again asserts that the State failed to
present evidence sufficient to prove the magnitude of the risk itself and that his action
does not constitute a gross deviation from the standard of care that an ordinary person
would exercise. Because we have previously rejected those arguments as they pertain
to criminal negligence, a requirement similar to recklessness, we need not address the
same arguments in the context of reckless endangerment. As such, we affirm the
district court’s conclusion that the State presented sufficient evidence of both the actual
risk to this infant and the perception of risk.

¶27 Secondly, Merrill argues that the court violated his rights under the Equal
Protection Clause of the federal constitution and the Uniform Operation of Laws Clause
of the Utah Constitution and his parental decision‐making rights under the Due Process
Clause of the federal constitution, by placing Merrill in a separate class from the general
public by finding that the risk he created by co‐sleeping with the infant was
significantly higher than other parents who co‐sleep with their infants. To begin with,
Merrill does not explain how evaluating the evidence under the statutory definitions of
criminal negligence and recklessness—requiring that the individual’s disregard or
failure to perceive the risk “constitutes a gross deviation from the standard of care that
an ordinary person would exercise under all the circumstances as viewed from the
actor’s standpoint,” Utah Code Ann. § 76‐2‐103(3); see also id. § 76‐2‐103(4)—equates to
impermissibly placing him in a separate class. Nor does Merrill provide supporting
authority or analysis as required by rule 24(a)(9) of the Utah Rules of Appellate
Procedure to support this argument. See Utah R. App. P. 24(a)(9). Rather, Merrill
quotes the relevant constitutional provisions and a few cases regarding statutory
classifications. He does not, however, provide any meaningful analysis of the cases or
for his claim that the district court impermissibly placed him in a separate class when it
merely applied statutory provisions requiring the court to view the evidence under the

13
In his discussion regarding the risk elements of the reckless endangerment
charge, Merrill mentions only that evidence of the previous death of his infant daughter
“must be restricted in its purpose—to show the subjective element of perception of the
risk. Evidence of [his infant daughter’s] death does not constitute evidence of the
objective element of the magnitude of the risk.”

20080908‐CA 14
circumstances as viewed from the actor’s standpoint. ”Briefs must contain reasoned
analysis based upon relevant legal authority. An issue is inadequately briefed when the
overall analysis of the issue is so lacking as to shift the burden of research and argument
to the reviewing court.” Brussow v. Webster, 2011 UT App 193, ¶ 10, 258 P.3d 615
(internal quotation marks omitted), cert. denied, No. 20110715 (Utah Nov. 28, 2011); see
also Utah R. App. P. 24. This court has consistently declined to address federal and state
constitutional claims that have been inadequately briefed. See State v. Garner, 2002 UT
App 234, ¶¶ 7, 12, 52 P.3d 467. Because Merrill’s claims are devoid of any meaningful
analysis, we decline to address them.

CONCLUSION

¶28 Merrill asserts that the district court improperly admitted Dr. Leis’s testimony.
Utah courts have previously approved of experts relying on their training and
knowledge to provide opinions that do not amount to medical certainty, see State v.
Jarrell, 608 P.2d 218, 230 (Utah 1980). The supreme court has explained that
uncertainties regarding the manner and cause of death should be left for the fact‐finder
to resolve at trial. See State v. Talbot, 972 P.2d 435, 439 (Utah 1998). As such, we
conclude that the district court did not err by admitting Dr. Leis’s testimony,
notwithstanding Dr. Leis’s acknowledgment that he could not express an opinion as to
the manner and cause of death to a medical certainty.

¶29 Merrill next asserts that the State did not present sufficient credible evidence to
demonstrate that he caused the infant’s death. Dr. Leis’s testimony regarding the
circumstances of the infant’s death were based on his training and experience and
therefore not so tenuous that we call it speculation. We conclude that the State has
presented sufficient credible evidence to support a reasonable inference that Merrill
caused the infant to die.

¶30 Merrill then argues that the district court erred in binding him over on the child
abuse homicide and reckless endangerment charges. The State presented evidence that,
when viewed in the light most favorable to the prosecution, demonstrates that Merrill’s
action of co‐sleeping with his infant son created a substantial and unjustifiable risk of
serious physical injury or death. Based on this evidence, a magistrate could reasonably
conclude that an ordinary person, viewing the circumstances from Merrill’s standpoint
would not co‐sleep with an infant or allow another to do so. As a result, we conclude

20080908‐CA 15
that the district court did not err by finding that Merrill acted with criminal negligence
and binding Merrill over on the child abuse and reckless endangerment charges.

¶31 Merrill lastly argues that the district court violated his due process and equal
protection rights under the State and Federal constitutions by placing Merrill in a
separate class from the general public. Merrill does not explain how evaluating the
evidence under the statute impermissibly places him in a separate class, nor does he
provide supporting authority or analysis to support his constitutional arguments. We,
therefore, decline to address these arguments because of inadequate briefing.

¶32 We affirm the district court’s decision to deny Merrill’s motion to quash the
bindover on the child abuse homicide and reckless endangerment charges.

____________________________________
William A. Thorne Jr., Judge

‐‐‐‐‐

¶33 WE CONCUR:

____________________________________
Carolyn B. McHugh,
Presiding Judge

____________________________________
Gregory K. Orme, Judge

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