State v. Tusing
| Citation | 875 S.E.2d 283 |
| Decision Date | 14 June 2022 |
| Docket Number | 21-0115 |
| Parties | STATE of West Virginia, Plaintiff Below, Respondent, v. Kelly Marie TUSING, Defendant Below, Petitioner. |
| Court | Supreme Court of West Virginia |
Jeremy B. Cooper, Esq., Blackwater Law PLLC, Aspinwall, Pennsylvania, Counsel for Petitioner
Patrick Morrisey, Esq., Attorney General, Katherine M. Smith, Esq., Assistant Attorney General, Charleston, West Virginia, Counsel for Respondent
In this case, the petitioner Kelly Marie Tusing ("the petitioner") appeals from her conviction in the Circuit Court of Preston County, West Virginia, on one count of death of a child by parent, custodian, or guardian by child abuse, W. Va. Code § 61-8D-2a(a) (2017).1 She raises five issues, two relating to the determinate sentence of one hundred years imposed by the circuit court, two relating to the court's evidentiary rulings, and one relating to the sufficiency of the State's evidence to prove malice and intent.
Following careful review of the parties’ written and oral arguments, the appendix record, and the applicable law, we affirm the petitioner's conviction, but reverse the sentence imposed and remand the matter for resentencing, all as set forth infra.
The facts of this case are tragic. In or about early 2018, the petitioner, who was a friend of David L.,2 baby B.L.’s father, began babysitting the child on a fairly frequent basis. On Thursday, November 8, 2018, at approximately 11:00 p.m., when B.L. was twelve months old,3 she was brought to the petitioner's home to spend the night; in this regard, evidence in the appendix record suggests that the baby's parents had a tumultuous relationship and the petitioner was often asked to babysit when they were involved in prolonged fighting. B.L. remained in the petitioner's care through Saturday, November 10, 2018. Critically, the petitioner subsequently admitted that from the period of time between 11:00 a.m. and 2:03 p.m. on November 10 – other than a fifteen-to-twenty-minute visit from unidentified "church people" – she was alone in her home with her two children and B.L. At 2:03 p.m. the petitioner called Robin P., B.L.’s paternal grandmother, and told her that B.L. had fallen off a bed and was not breathing. When Robin P. and her husband arrived minutes later, B.L. was on the floor; according to Robin P., the baby was not breathing, her skin was purple, and her eyes "were rolled in the back of her head." Robin P.’s husband called 9-1-1, and immediately after an Emergency Medical Technician ("EMT") arrived and visually assessed the baby, he "yelled out the door to call life-flight[.]"
At West Virginia University Children's Hospital in Morgantown, West Virginia, B.L. was admitted in a comatose state and was put on a ventilator to help her breathe. One of her treating physicians, Dr. Melvin Wright, testified that the baby's brain was swollen, subdural bleeding was present, and that she had "multiple hemorrhaging in both eyes in all layers of the retina." Despite heroic measures taken to relieve the pressure on B.L.’s brain,4 ultimately B.L.’s parents made the decision to remove her from life support due to her extensive brain injuries
and anticipated life-long vegetative state.5
During the period of B.L.’s hospitalization, a police investigation commenced led by Trooper Levi Hall with the West Virginia State Police, who interviewed the petitioner on November 11, 2018; November 19, 2018; and January 11, 2019. During these interviews the petitioner confirmed that she was "alone in the house with the kids" during the operative time frame, and that B.L. began "[g]asping, [had a] dazed look, [was] foaming at the mouth, [and] appeared to be having a seizure, twitching." The petitioner also admitted that she had deleted messages found on her phone from November 10, 2018, which, together with the fact that "[t]he doctors had already told [Trooper Hall] that [the baby's condition] wasn't from a fall," eventually led the officer to exclude everyone other than the petitioner from the criminal inquiry:
From the doctor[s’] opinions and their timeline. They all said that [B.L.] would have collapsed immediately upon receiving that injury. The fact that it wasn't from a fall, and from [the petitioner's] timeline, she puts herself at the house alone with [B.L.] for several hours. Everyone else in this case agrees with that, there's no dispute on the timeline. [The petitioner] was with that child for several hours alone.
Eventually, on March 5, 2019, the petitioner was indicted on one count of death of a child by parent, custodian, or guardian by child abuse, W. Va. Code § 61-8D-2a(a). On October 5, 2020, the case proceeded to trial, with the State calling nine witnesses and the defense calling three witnesses. In light of the petitioner's admission to the police that she was alone in the house with the baby during the critical three-hour window of time, the key issue in the trial was whether B.L.’s catastrophic brain injuries
were sustained on November 10, 2018, when the child was in the petitioner's care, or two to fourteen days earlier, as the petitioner's expert opined. In this regard, the State called three medical experts: Dr. Melvin Wright and Dr. Claudiu Faraon, who treated B.L. at WVU Hospital's Pediatric Intensive Care Unit, and Dr. Allen Mock, the Chief Medical Examiner of West Virginia. Dr. Wright testified that B.L. was admitted to the Unit in a comatose state and was hooked up to a ventilator to help her breathe. The baby's brain was swollen and subdural bleeding was present; additionally, she had "hemorrhaging in both eyes in all layers of the retina." Dr. Wright testified unequivocally that in his opinion, B.L.’s injuries could not have been caused from a fall from a bed and indeed, could not have been sustained "from anything other than abusive head trauma." Dr. Faraon stated that B.L.’s injuries were "highly, highly indicative of nonaccidental injury to the brain, nonaccidental trauma or inflicted brain injury." He further testified that the injuries could not have been sustained accidentally, and that within minutes of sustaining the injuries, the baby would "become sleepy or lethargic, unable to wake up ... [a]nd then she would progress to become unresponsive and to become comatose." Dr. Mock testified that B.L.’s injuries, all of which were observed on autopsy, were the result of "multiple blunt force injuries of the head." He agreed with the testimony of Drs. Wright and Faraon that the injuries were not caused by a fall from a bed, classifying the cause of B.L.’s death as homicide.
In contrast, the petitioner's expert, Dr. David Myerberg, testified that the CT scans
taken soon after B.L.’s admission to the hospital showed the existence of a previous injury that would have occurred two to fourteen days prior to November 10: "if you look on the outside of that subdural hemorrhage, you see another line that is really fluid, and that doesn't happen in an acute subdural hemorrhage."6 Dr. Myerberg further opined that the baby's fall from the bed – reported by the petitioner as an accident that occurred when she was out of the room – would be sufficient to trigger the sequelae of that earlier injury. Finally, in contrast to the testimony of the treating physicians that B.L.’s retinal hemorrhaging was yet another indication of multiple blunt force trauma to her head, whether by blows or shaking, Dr. Myerberg concluded that B.L.’s retinal hemorrhaging was not indicative of the force of the trauma to her head but rather was most likely the result of the pressure from her brain injury ; "if you have pressure in the brain, it's going to move everything out of the way."
On October 9, 2020, the jury returned a verdict of guilty, and by order entered on January 7, 2021, the circuit court sentenced the petitioner to a determinate term of 100 years in prison.7 This appeal followed.
The petitioner raises five issues for this Court's review on appeal, although only four are addressed in this opinion.8 Because the assigned errors have different standards of review, the applicable standard is set forth in the discussion of each issue.
The first issue raised by the petitioner is the legality of her sentence; specifically, she challenges the circuit court's ruling that West Virginia Code § 61-8D-2a(c) permits the imposition of a determinate sentence within a range of fifteen years to life. Our standard of review here is well established: Syl. Pt. 1, State v. McCartney , 228 W. Va. 315, 719 S.E.2d 785 (2011).
As previously set forth, the petitioner was convicted of one count of death of a child by parent, custodian, or guardian by child abuse, W. Va. Code § 61-8D-2a(a),9 for which the penalty is set forth in West Virginia Code § 61-8D-2a(c) :
Any person convicted of a felony described in subsection (a) or (b) of this section shall be imprisoned in a state correctional facility for a period of fifteen years to life. A person imprisoned pursuant to the provisions of this section is not eligible for parole prior to having served a minimum of fifteen years of his or her sentence.
We begin with a brief overview of the statutory history. The current version of West Virginia Code § 61-8D-2(a)(c) was codified following passage of the Enrolled Committee Substitute for Senate Bill 288 on April 7, 2017:
AN ACT to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated § 61-8D-1a; and to amend and reenact § 61-8D-2a of said code, all relating to naming the law10 and increasing the penalty for death of a child by a parent, guardian, custodian or other person by child...
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