State v. Covington

472 P.3d 966

STATE of Utah, Appellee,

v.Travis A. COVINGTON, Appellant.

No. 20180641-CA

Court of Appeals of Utah.

Filed July 30, 2020

Gary W. Pendleton and Trevor D. Terry, Attorneys for Appellant

Sean D. Reyes and Kris C. Leonard, Attorneys for Appellee

Judge Michele M. Christiansen Forster authored this Opinion, in which Judges Jill M. Pohlman and Diana Hagen concurred.

Opinion

CHRISTIANSEN FORSTER, Judge:

¶1 Travis A. Covington was found guilty of aggravated abuse of a disabled adult. Asserting that the State presented insufficient evidence at trial to support his conviction and that he was prejudiced by the joinder of his trial with that of his wife, Covington appealed. We affirm.

BACKGROUND

¶2 Covington and his then-wife had a son (Victim) in January 1992. Victim was diagnosed as autistic at an early age. His parents divorced, and Covington received full custody of Victim in 1996. Covington married another woman (Wife) in 1999.

¶3 Wife consulted the internet to develop a special diet suitable for Victim.¹ Covington, who worked as a certified nursing assistant and apparently agreed with Wife that Victim needed a special diet, followed that diet in feeding Victim for the next ten years. Victim's younger siblings were not placed on the special diet.

¶4 Covington's sister (Aunt) testified that on the occasions that she dined with Covington's family, Victim was not allowed to associate with his siblings and had to sit by himself. Victim's grandfather (Grandfather), who lived near the Covingtons, noticed that Victim was "ostracized" and "not allowed to do some things that the other kids were allowed to do." During one visit, Grandfather noticed a lock on the outside of Victim's bedroom door. Covington told Grandfather the lock was "to keep [Victim] from getting out in the night and getting into the fridge" to eat "lunch meat and stuff ... that he was craving." Grandfather noticed Victim began losing weight and told Covington that he "was concerned that ... [Victim] was getting too thin," eventually placing a strain on his relationship with Covington to the point that Grandfather no longer had contact with Victim. Aunt also told Covington and Wife that Victim needed to be fed more.

¶5 After working as a nursing assistant for twenty-four years, Covington lost his job at a hospital in Las Vegas, Nevada. The family—composed of Covington, Wife, Victim, and six children born of the marriage between Covington and Wife—then adopted a semi-nomadic lifestyle, living in a travel trailer and selling novelty items at various recreational venues. Wife assumed the duties of homeschooling all the children and the household chores, and Covington did all the cooking for the family.

¶6 In December 2013, Covington rented a vendor's booth for an upcoming event in Quartzite, Arizona, and the family traveled there because the show was a "big money maker" that Covington anticipated would "subsidize [the family's] income for the whole year." Around the same time, Covington began to worry that Victim's health was deteriorating, so much so that he began talking to his sisters about Victim's condition. Aunt, who lived in Hurricane, Utah, thought Victim, who was then twenty-two years old and stood five feet and one inch tall, should come and stay with her "because she already had some autistic kids" and felt she might be better equipped to "handle [Victim's] autism."

¶7 On the evening of January 7, 2014, while the family was still in Quartzite, Victim collapsed in the travel trailer and was transported to LaPaz Regional Medical Center (LaPaz) in Parker, Arizona. Records from LaPaz listed Victim's weight as eighty pounds. Victim was diagnosed with hypoglycemia, treated, and discharged about two hours later. On discharge, Covington was instructed in writing to "increase [Victim's] fluids and food intake," "follow up with family [doctor]," and "return as necessary." Covington signed the discharge papers and verbally expressed that he understood the care instructions pertaining to Victim. But after this incident, Covington never took Victim to a doctor again.

¶8 A few days after the visit to LaPaz, Covington called Aunt and told her that Victim "had a sugar drop, had to go to the ER." Covington asked if Victim could come to Aunt's house for a time so she could temporarily take "care of him and spend one on one time with him." Covington mentioned that Victim needed to gain weight but did not mention the discharge instructions or any other health concerns raised during Victim's prior medical visit. Aunt told Covington that she "didn't feel right about taking" care of Victim unless he was "doing ... better," but she told Covington that she was willing to take in Victim if his condition improved. Aunt subsequently received two texts from Covington indicating that Victim "was doing better."

¶9 The family then made its way to St. George, Utah, to visit Wife's ailing father, arriving in the evening of January 16, 2014. Wife's father died a few days later, and the family attended the funeral on January 25. The record does not indicate the precise location of Victim at all times during this period, but Covington testified that he traveled between Utah and Nevada several times:

We had to go back and forth all over, because we had to do ... storage in Mesquite, Nevada. We had to go take care of taxes, multiple things. So I wasn't stuck in one spot. I had to keep to going back—I was going back and forth between Arizona and Nevada, back to Utah to see [Wife's] dad again, and then back over to try to get the taxes submitted, and then back over to see her dad, and then back over to try to do storage ....

Additionally, the record is clear that Covington rented a space in an RV park in Hurricane early in the day of February 2, 2014.

¶10 Around noon of that same day, Covington took Victim to Aunt's house in Hurricane. Aunt testified that Victim looked very thin and seemed weak to the point that "he was having a hard time walking." Aunt testified that Covington carried in Victim's belongings, sat him at the table, and gave him "an orange and ... some sort of cereal or something." Aunt's husband (Uncle), who had seen Victim a year earlier, testified that Victim had "lost a lot of weight" and "was having a hard time walking" to the point that he had to use both hands to grasp the stair railing to ascend the stairs. Covington told Aunt and Uncle that Victim had been "having accidents," but he did not mention any other health concerns. Covington and Wife, along with the other children, returned to Aunt's house a few hours later; Wife gave Aunt a copy of Victim's diet, and Covington brought some groceries for Victim.

¶11 Later that evening, Uncle served Victim a meal of two baked potatoes covered with chili and green beans. Victim cleaned the plate. On Monday, February 3, Aunt weighed Victim on her bathroom scale; he weighed fifty-two pounds. Victim ate everything he was given for breakfast, lunch, and dinner without incident. Aunt testified that she "tried the best that [she] could" to adhere to the diet given to her for Victim.

¶12 Covington's cousin (Cousin) visited Aunt, Uncle, and Victim that evening, and he was taken aback by Victim's appearance: "He looked real tiny. Very, very thin. What was really strange was his just—how close the skin fit the contours of his skull and around his teeth and everything." After leaving, Cousin kept "mulling over" the situation: "I was worried, because to me, he—he looked to me like he was really near death. That's what it seemed to me like, and I was afraid for [Aunt] and [Uncle] for one thing. I was afraid that he was going to pass away ...." The next morning, Cousin called his ecclesiastical leader (Leader), and after some discussion, it was agreed "that somebody needed to take [Victim] to" an urgent care facility.

¶13 Grandfather met Leader, Cousin, Uncle, and Victim at the urgent care facility. Grandfather, who had not seen Victim in three years, described Victim: "He [was] just flesh covered bones standing there. I've never seen anybody that skinny in my life, and it scared me." It was determined that Victim's condition was too serious for the urgent care facility, so Grandfather drove him to the emergency room of a hospital (Hospital) in St. George, Utah.

¶14 A police officer took photographs of Victim at the urgent care facility. The officer was troubled by Victim's appearance, describing it as "alarming" and saying he was "very emaciated, extremely thin."

¶15 Covington attempted to visit Victim at Aunt's house, but he was met there instead by a police officer, who informed Covington that there were "concerns" and that Victim had been taken "over to a facility and they were checking him out." When Covington arrived to visit Victim at the Hospital, he was arrested.

¶16 On admission to the Hospital, Victim weighed fifty-five pounds, and the emergency room doctor said it was "readily apparent" that Victim was "severely cachectic," meaning that he was "[w]asting away" with a "lack of muscle mass, lack of subcutaneous tissue, [and] protuberance of bony structures." In addition to being malnourished and underweight, the doctor found that Victim was severely dehydrated and exhibited alarming lactic acid levels, a condition the doctor said was potentially life-threatening if left untreated. Victim was given the maximum amount of saline solution to treat his dehydration. In addition, the doctor was "concerned about" lab tests showing Victim's low hemoglobin, low potassium, low glucose, low creatinine, and elevated liver enzymes. X-rays further revealed that Victim had a pneumomediastinum, which the doctor testified "can be [an] absolutely life threatening" condition in which air leaks out of the esophagus, trachea, or lungs and into the chest cavity. The doctor also testified that there was no indication in the emergency room medical records or from his observations that Victim was suffering from diarrhea when he was admitted. The admitting doctor...