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State v. Muro4/28/2005
Susana Muro was convicted by the district court for Dawson County of child abuse resulting in the death of a child and sentenced to 20 years' imprisonment. The Nebraska Court of Appeals affirmed her conviction, finding there was sufficient evidence that she knowingly failed to secure necessary medical care for her daughter, Vivianna Muro, after becoming aware that the child had sustained a serious injury, and that such failure was a proximate cause of the child's death. State v. Muro, 13 Neb. App. 38, 688 N.W.2d 148 (2004). On further review, we conclude that while the evidence in the record is sufficient to support the finding that Muro knowingly and intentionally caused or permitted Vivianna to be deprived of medical care, it is insufficient as a matter of law to establish that such deprivation caused the child's death.
I. BACKGROUND
1. Facts
The facts are set forth in detail in the published opinion of the Court of Appeals. State v. Muro, supra. We summarize here the sequence of events which preceded the death of Vivianna on October 28, 2002. Additional facts and opinion evidence will be discussed in our analysis of the causation issue.
On October 27, 2002, Muro resided in Lexington, Nebraska, with her husband, Jose Muro (Jose), and their children, a 4-year-old son and 8-month-old Vivianna. At approximately 3:20 p.m. on that day, Muro left the children at home in the care of Jose while she ran errands. Vivianna appeared normal at that time. When Muro returned home sometime after 6 p.m., Jose was holding Vivianna but the child was not crying as she usually did when held by Jose. Muro inquired about Vivianna, and Jose replied that she was asleep. He placed her in her crib while Muro fed their son and performed various chores.
Between 7 and 7:30 p.m., Muro took Vivianna from her crib and noticed that something was wrong. Vivianna was unresponsive and appeared "dazed," and her eyes were "half open, half closed." Muro observed that Vivianna was "limp, kind of like a rag doll." Over the next several hours, both Muro and Jose called the Tri-County Hospital in Lexington for advice without identifying themselves or disclosing that Vivianna was limp and unresponsive. A nurse testified that she advised the unidentified callers to bring the baby to the emergency room if they had any concern or uncertainty regarding her condition. Muro then called her mother-in-law, who resided in another state, and asked for advice about a "'friend's'" baby who appeared "'dazed'" and "'loose,'" specifically denying that she was referring to Vivianna. Muro's mother-in-law told her to tell her friend to take the baby to the hospital as soon as possible. Muro and Jose then took Vivianna to Tri-County Hospital.
When she arrived at the hospital at approximately 11 p.m., Vivianna was not breathing, her pupils were fixed and dilated, and she was limp and cold. Although medical personnel performing resuscitation were able to establish a heartbeat, they were never able to stabilize Vivianna or establish spontaneous respiration. A physician diagnosed various injuries, including a hematoma on the left side of her head. The physician concluded that the severity of the child's condition necessitated transfer to Good Samaritan Hospital in Kearney, Nebraska, and made the necessary arrangements. An ambulance crew accompanied by Dr. Stephen Parys, a pediatrician, arrived in Lexington and transported Vivianna to Good Samaritan Hospital. During the transfer process, Parys noted various injuries, including the hematoma, bruising, and an old rib fracture depicted on x ray. He suspected that the injuries were traumatic in origin. Parys continued assisted breathing measures during the t
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