Child abuser is denied fast sentencing If baby dies, term could get longer

October 28, 1993|By Jay Apperson | Jay Apperson,Staff Writer

A Baltimore man convicted yesterday of physically abusing his 3-month-old son asked a judge to sentence him immediately in hopes of avoiding the additional five years in prison he could receive if the baby dies.

The man cannot be charged with murder even if the permanently brain-damaged baby dies, because of a law that says a person must die within a year and a day of sustaining fatal injuries for a murder charge to apply, a prosecutor said.

The injuries that have left young Guy Owens Jr. permanently blind and without brain activity save for involuntary functions controlled by the brain stem were inflicted in August and September of 1992.

In denying Guy Owens Sr.'s request to be sentenced yesterday, Baltimore Circuit Judge Elsbeth L. Bothe said she wanted to give the man as much prison time as possible.

The issues arose because the boy was hospitalized in the pediatric intensive care unit of University of Maryland Medical Center Tuesday night after a drain for his skull became clogged, threatening his life.

Owens' lawyer, M. Gordon Tayback, said the child's condition was deteriorating and noted that the maximum penalty for child abuse increases to 20 years from 15 years if a child dies as a result of the abuse.

Owens, 35, of the 2000 block of Hollins St., who also was convicted on other charges, could be given as much as 43 years in prison at his sentencing, scheduled for Dec. 8.

"My only regret is that's all I'll be able to give him whether the child lives or dies," Judge Bothe said.

Prosecutor Julie Drake said the man cannot be charged with murder if the baby dies because of Maryland's "year-and-a-day rule."

Byron L. Warnken, a professor at the University of Baltimore School of Law, said Maryland is one of two states with such a law still on the books. He said the rule, which descends from 13th century English common law and is designed to establish a firm time limit in which injuries could be considered to have caused a death, has become "antiquated" in an era of advanced medical technology.

Prosecutors said the baby suffered numerous broken bones, including fractures caused when his legs were twisted and a fractured skull that caused bleeding, which in turn caused the blindness.

According to testimony at the trial, Owens, who cared for the baby while the mother worked, often took the boy with him when he went to a female friend's home to use heroin.

The woman urged Owens to take the child for treatment when she noticed that the boy's eyes were fixed and crossed, but neither Owens nor the child's mother took the baby to the hospital for several days. Doctors said the baby was virtually "lifeless" when he finally arrived at the hospital in September 1992.

"This is the worst child abuse I've ever seen," Ms. Drake said. She said the baby, who lives in a specialized foster care home, can feel pain and is "living in a nightmare." Judge Bothe noted that most people connected with the case feel the child would be better off if allowed to die.

After four days of testimony, a jury of 11 women and one man found Owens guilty of child abuse, assault with intent to maim, two counts or reckless endangerment and a count of contributing to the status of a child in need of assistance.

Prosecutors argued that the baby's mother, 20-year-old Jornay A. Newman, should have taken action in response to the abuse inflicted by Owens. She was found guilty of child abuse, reckless endangerment and contributing to the status of a child in need of assistance.

Judge Bothe revoked the woman's $50,000 bail and ordered her jailed to await sentencing. She could receive up to 23 years in prison.

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