Metropolitan News-Enterprise


Monday, August 4, 2014


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Mother’s Failure to Summon Help for Injured Son Who Died Supports Second-Degree Murder Conviction—C.A.


By ANN ANOOSHIAN, Staff Writer


The Fourth District Court of Appeal has held that a mother’s failure to seek prompt medical treatment for her two-year-old son, who died, supports her conviction for second-degree murder.

Div. Three upheld the conviction and sentence of defendant Davia James, 22, who was found to have possessed the requisite malice for the crime of second-degree murder, in neglecting to care for her son’s injuries sustained two days prior to her calling paramedics.

James told paramedics that her son, Robert, had slipped and fallen in the bathroom two days earlier, on the morning of Nov. 7, while she was at doctor’s appointment. Her live-in boyfriend, Andrew Payne, was watching the child at that time.

James also told paramedics that Robert had not been acting normally since the fall. In fact, he had been asleep for two days, and he had not eaten or drank during that time period.

When paramedics asked James why she had not taken Robert to the doctor, she said she thought he would get better on his own.

The medical examiner concluded Robert died as the result of multiple blunt-force impacts to the head, which caused swelling, herniation and hypoxic-ischemic encephalopathy, a condition where there is no blood and therefore no oxygen going to the brain.

Awareness of Injuries

James admitted at trial she was aware of Robert’s injuries, and that he had not moved or made noise for nearly 24 hours, and noticed his body became stiff when she tried to bathe him.

The judge instructed the jury on second-degree murder under a theory of implied malice. The instruction given the jury was that “a conviction required proof beyond a reasonable doubt James intentionally committed an act, the natural and probable consequences of which were dangerous to human life, she knew of the danger when she acted, and she deliberately acted with conscious disregard for human life.”

James was convicted and sentenced to an indeterminate term of 15 years to life.

(Payne was convicted in a separate jury trial, and was sentenced to an indeterminate term of 25 years to life for child abuse resulting in death.)

James appealed, arguing there was an insufficiency of the evidence to prove the second degree murder conviction under an implied malice theory, and she claims the prosecution failed to prove she proximately caused Robert’s death.

Substantiality of Evidence

Justice David Thompson of Div. Three wrote for a unanimous court, in an unpublished opinion filed Thursday. He said:

“[T]he evidence supports the jury’s conclusion James knew and appreciated the severity of Robert’s injuries, but she consciously decided to do nothing to protect him. Even after Payne told her Robert had fallen and hit his head, she did nothing to ensure the fall caused no life-threatening injuries. In fact, James treated Robert’s condition as some type of normal childhood illness when it was apparent that was not the case, even to Payne. Moreover, she did nothing to ensure the accuracy of her belief in the face of substantial evidence to the contrary. This is the very definition of second degree implied malice murder.”

Rebuffing James’ contention that the evidence did not establish proximate cause, Thompson wrote:

“It is undisputed James had a legal duty to provide reasonable medical care for Robert. Based on the medical testimony, Robert’s injuries and behavior would have led a reasonable person to believe medical intervention was necessary. But James ignored the obvious signs of Robert’s distress. Under these circumstances, it is objectively reasonable to believe James was aware her inaction created a substantial likelihood of death or serious injury.”

Thompson said the jury “reasonably concluded James’s failure to perform her duty as a parent to obtain medical care for a sick or injured child was a substantial factor in Robert’s death.”

The case is People v. James, GO49901.


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