State v. Muro

• Decision Date: 02 November 2004
• Docket Number: No. A-03-1399.,A-03-1399.
• Citation: 688 N.W.2d 148,13 Neb. App. 38
• Parties: STATE of Nebraska, appellee, v. Susana MURO, also known as Susana Muro Andrade, appellant.
• Court: Nebraska Court of Appeals

688 N.W.2d 148

13 Neb. App. 38

STATE of Nebraska, appellee, v. Susana MURO, also known as Susana Muro Andrade, appellant.

No. A-03-1399.

Court of Appeals of Nebraska.

November 2, 2004.

Derek L. Mitchell, Gothenburg, for appellant.

Jon Bruning, Attorney General, James H. Spears, Lincoln, and Danielle C. Miller, Senior Certified Law Student, for appellee.

IRWIN, Chief Judge, and SIEVERS and CARLSON, Judges.

IRWIN, Chief Judge.

I. INTRODUCTION

Susana Muro, also known as Susana Muro Andrade, appeals the decision of the district court for Dawson County, Nebraska, convicting her of the crime of child abuse resulting in the death of a child, a Class IB felony, and sentencing her to 20 years' imprisonment. On appeal, Muro challenges the sufficiency of the evidence to sustain the conviction and asserts that the sentence imposed was excessive. We find that the evidence supports a finding that Muro's child suffered an injury which was not invariably fatal and which the child had a reasonable likelihood of surviving but for Muro's failure to seek timely medical treatment. The evidence supports the trial court's finding that Muro possessed the requisite state of mind, that Muro failed to provide necessary care to her child, and that Muro's failure to seek timely medical treatment was a proximate cause of the child's death. Consequently, we find the evidence sufficient to support the trial court's conviction. We also find that the sentence imposed was not excessive. We affirm.

II. BACKGROUND

The events which gave rise to this criminal proceeding occurred on the evening of October 27, 2002, in or around Lexington, Nebraska. On that date, Muro's 8-month-old daughter, Vivianna Muro, suffered a serious injury and ultimately died. The criminal prosecution in this case was based on assertions that Muro failed to timely seek medical care for Vivianna and that such failure to seek medical care was a proximate cause of Vivianna's death. Although the testimony at trial contained some discrepancies concerning the specific details of what occurred on October 27, we view and construe the properly admitted evidence in a light most favorable to the State. See State v. Freeman, 267 Neb. 737, 677 N.W.2d 164 (2004).

On October 27, 2002, Muro left her house at approximately 3:20 p.m., leaving Vivianna and Muro's 4-year-old son, Jose Muro, Jr. (Junior), with their father, Muro's husband, Jose Muro (Jose). When Muro left, Vivianna appeared normal. At trial, evidence was presented that Vivianna had been crying after Muro left and that Junior had asked Jose to get Vivianna to stop crying. Further evidence was presented that Vivianna did not stop crying and that Jose "hit Vivianna" and "threw" Vivianna. Prior to trial, Junior had demonstrated to a police investigator that Jose had hit Vivianna with his hand on the left side of her head and had held Vivianna by the leg and thrown her. Junior had also commented to the investigator "about [Vivianna's] hitting glass and [that] the glass exploded."

Muro returned home after 6 p.m. and observed that Jose was holding Vivianna. According to Muro, Vivianna would normally cry when Jose held her but was not crying when Muro arrived. Muro asked Jose how Vivianna was, and Jose replied that Vivianna was asleep. Muro then gave Junior some cereal and put groceries away, and Jose placed Vivianna in her crib.

Muro next gave Junior a haircut and a bath and took a shower. Between 7 and 7:30 p.m., Muro picked up Vivianna, "called her name, then ... ran towards [Jose]." Muro told Jose, "`[S]omething's wrong with the baby.'" At that time, Vivianna appeared "loose" and "dazed." Muro later described to a police investigator that Vivianna's eyes were "half open, half closed," and that Vivianna was unresponsive and "limp, kind of like a rag doll."

Jose took Vivianna from Muro and began using a nasal aspirator to clear Vivianna's nose and mouth. Jose called Tri-County Hospital in Lexington sometime after 8:30 p.m. The record does not indicate that Jose provided any identification when he called the hospital. At trial, Muro testified that the hospital advised Jose to keep Vivianna warm. Kathleen Goracke, a registered nurse who was on duty at Tri-County Hospital on that night, testified that she received a telephone call about a baby from an unidentified male between 8:10 and 8:30 p.m., that the caller did not advise her that the baby was limp or unresponsive, that the caller advised her that the baby was just waking up and seemed "`wobbly,'" and that the caller expressed concern that the baby had "ingested some poison." Goracke testified that she advised the caller to allow the baby to fully wake, to observe the baby, and to bring the baby in to the emergency room if he had any concerns.

Muro testified that after Jose called the hospital, she changed Vivianna's diaper and clothes. Muro testified that she then called the hospital herself but, like Jose, remained unidentified. Muro claims that she informed the person she spoke with at the hospital that Vivianna looked "dazed." Muro claims that the person she spoke with advised her to continue using the aspirator and to keep Vivianna warm. Muro also claims that the person she spoke with told her that "`[i]t's probably a flu or a virus that's going around.'" Goracke testified that the only telephone call received in the emergency room on the night in question besides the unidentified male's was from an unidentified female, but that her call came prior to the unidentified male's. Goracke testified that the female caller contacted the hospital at approximately 6:15 p.m. Goracke further testified that she did not advise anyone that there was a flu going around and that she had also advised the female caller to bring her baby in if she had any other questions or problems or was unsure.

Muro then called her mother-in-law, who resides in California. Muro told her mother-in-law that Muro's "`friend's ... baby'" was "`dazed'" and looked "`loose.'" When Muro's mother-in-law asked whether Muro was talking about Vivianna, Muro specifically told her, "`No.'" Muro's mother-in-law advised Muro to "`[t]ell [her] friend to take the baby to the hospital as soon [as] she can.'" Muro then took Vivianna to the hospital.

At approximately 11 p.m., Muro, Jose, Junior, and Vivianna arrived at Tri-County Hospital. Jose carried Vivianna into the emergency room, at which time she was unresponsive, "real limp and cold," and "kind of ... gray-bluish looking." Vivianna was not breathing when she arrived at the hospital. Additionally, there was no fontanel present in Vivianna's skull area; the soft spot on her head was "very much bulging." Goracke started "mouth-to-mouth breathing" and was joined in the emergency room by two other nurses who helped attempt to resuscitate Vivianna.

Goracke testified at trial that when Vivianna arrived at the hospital, her pupils were fixed and dilated and she had a "really bad rash" in her diaper area, an "open area" cut on her neck which was oozing, "scabs and scratches and marks all over," unkempt feet and toenails, new and old sores on her hands and feet, another "open area" on her right armpit, "scratches all over" her body, and "bruises" on her left side.

To resuscitate her, personnel at Tri-County Hospital "shocked [Vivianna] four times, and [she] went into a sinus breathing rate." Although Vivianna was revived to the point of having a heartbeat, she "was unresponsive the whole time, and there was no spontaneous respiration." Dr. Joseph Miller was the physician on call in the emergency room that night, and at trial, he testified that Vivianna was never stabilized. Dr. Miller testified that Vivianna had a hematoma, or a collection of blood, on the left side of her head; that her "`soft spot'" was bulging; and that her eyes were fixed and dilated. Dr. Miller further opined that "there had been some probable brain damage." Vivianna failed to react even to painful stimuli, such as the starting of an intravenous line and the insertion of stomach and nasogastric tubes. A chest x ray also revealed an "old, fractured, right sixth rib ... which is very unusual for a child."

Personnel at Tri-County Hospital then contacted Good Samaritan Hospital in Kearney, Nebraska, to arrange a transfer of Vivianna because they believed that Vivianna "needed more care than what [they] could, on-going, give at Tri-County Hospital." Dr. Stephen Parys was the treating physician from Good Samaritan Hospital who accompanied Vivianna during the transfer. Dr. Parys also noted the fractured rib that was apparent on Vivianna's chest x ray, the bruises on her leg and chest, the hematoma on the left side of her head, and that her fontanel area was bulging and tense.

Once Vivianna arrived at Good Samaritan Hospital, hospital personnel performed a CT scan to determine whether Vivianna had suffered any injuries to her brain. The CT scan revealed a "slightly displaced skull fracture in the left parietal area with a hematoma over it." At trial, Dr. Parys testified that "[i]t usually takes a significant force to cause a fracture to the skull" such as the one suffered by Vivianna. Dr. Parys recalled that when he spoke to Muro and Jose about Vivianna's condition, they told him that Vivianna had suffered "no traumas or accidents that day." According to Dr. Parys, Muro and Jose informed him that they first noticed that Vivianna was not well "mid-afternoon."

After performing other medical tests on the night in question, Dr. Parys determined that Vivianna was brain dead. Dr. Parys informed Muro and Jose that "the chance for survival was zero," and they discussed removing Vivianna's life support. Muro and Jose agreed to remove Vivianna from life support. Vivianna died a short time later. An investigator with the Lexington Police Department transported Vivianna's body from Good Samaritan Hospital to the Douglas County coroner's office in Omaha, Nebraska, on the evening of October 28, 2002....