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State v. Muro11/2/2004
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, "' 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 J
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