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State v. Morley

Court of Appeals of Utah

October 24, 2019

State of Utah, Appellee,
Tisha Lynn Morley, Appellant.

          Second District Court, Ogden Department The Honorable Scott M. Hadley No. 141900806

          Emily Adams and Cherise M. Bacalski, Attorneys for Appellant

          Sean D. Reyes and Jeffrey S. Gray, Attorneys for Appellee

          Judge Kate Appleby authored this Opinion, in which Judges Michele M. Christiansen Forster and Jill M. Pohlman concurred.

          APPLEBY, Judge:

         ¶1 A jury convicted Tisha Lynn Morley of child abuse homicide and she was sentenced to five years to life in prison. Morley contends she received ineffective assistance of counsel when her attorney failed to object to (1) the testimony of one of the State's expert witnesses and (2) the State's introduction of certain photographs and a video depicting a toddler attempting to pick up a cardiopulmonary resuscitation (CPR) doll. Morley urges us to either direct the district court to enter judgment for the lesser included offense of negligent homicide or remand the case for a new trial. We affirm.


         Victim's Injury and Death

         ¶2 The morning of February 19, 2014, began as any other for one mother (Mother). On her way to work, she dropped off her two sons, a three-year-old (Brother) and an eight-month-old (Victim), at Morley's in-home daycare. Mother recalled Victim "was his normal self, smiling, happy, playful."

         ¶3 Morley claimed that, later in the morning, she left Victim on a mat on the floor with several three- and four-year-old children, including Brother, while she disinfected toys in another area of the house. The children were left unsupervised, playing with blocks and other games for about twenty minutes. Upon Morley's return, Victim was still on the mat and was crying uncontrollably and seemed tired but would not take a nap. She said Victim remained tired and fussy throughout the day-at times inconsolable-and he had vomited. Despite this, after Mother sent Morley a text message at 3:09 p.m. asking how the boys were doing, Morley responded at 4:19 p.m. they were "ok" and Victim "ha[d] slept a lot." She reported Victim had eaten a little but "absolutely would not take a bottle" and was currently sleeping.

         ¶4 The boys' father (Father) arrived shortly after 5:00 p.m. to pick up Victim and Brother. Victim had vomited and was limp, unresponsive, and cold to the touch. Morley sprinkled water on his face in an attempt to awaken him, to no avail. Father took the boys home, where he met Mother, and the family rushed Victim to the emergency room.

         ¶5 At the hospital, a CAT scan revealed Victim had "a severe skull fracture." He was flown to a children's hospital where, three days later, Mother and Father were told he would never regain consciousness. Mother and Father removed life support and Victim died hours later.

         ¶6 An autopsy revealed significant bruising behind Victim's right ear, a skull fracture, brain swelling, and bleeding in both eyes. Both of his arms had fractures to the humerus, [2] an injury which the medical examiner testified was "an uncommon site for a fracture" and is "most commonly seen . . . in child abuse." The medical examiner concluded the cause of Victim's death was blunt force injury to the head and classified the death as a homicide. An ocular pathologist analyzed Victim's eyes and found significant retinal hemorrhaging in each of them, which indicated "non-accidental trauma . . . consistent with abusive head trauma."

         The Investigation

         ¶7 Based on Victim's injuries, the police were notified about "a child that had received a head injury," and an officer was directed to interview Morley because Victim was injured at her house. When the officer asked Morley where Victim could have hit his head, Morley theorized he could have banged it on the highchair because he had been "rocking his head back and forth" while sitting in it. The officer examined the highchair, which was made of pliable plastic with rounded corners. The officer told Morley he was looking for something harder or sharper that could have caused a skull fracture. Instead of responding to the officer, Morley addressed her husband, inquiring whether he knew about a large, crescent-shaped crack on the top of their changing table. Morley wondered if her three-year-old daughter caused the crack because she often climbed onto the table to get into the attached crib.[3] Morley said the crack had "just now" come to her attention and she could not remember whether she changed Victim on it the day he was injured. When the officer inspected the changing table, the crack was covered with a blanket and a support beam was visible through the crack.

         ¶8 In the following days, investigators interviewed some of the children who were at Morley's house for daycare when Victim was injured. A few weeks later, they were notified that another child (Child), who was not interviewed initially, claimed Brother was the one who hurt Victim. Child told investigators Brother picked up Victim with one hand, threw him down, kicked him, slammed his head in a door, and jumped on him when Morley went downstairs and left Victim unattended with the older children. Child also told investigators Brother drew on Victim's face and Victim was bleeding, but there was no evidence that either of these things occurred. Child also claimed Victim was already dead by the time Morley returned from disinfecting toys.

         ¶9 In an attempt to corroborate Child's claim, investigators obtained a CPR doll; it was several inches shorter than Victim. They stuffed its chest with weights to make it weigh slightly over 12.5 pounds to get closer to Victim's weight of about 17 pounds. Investigators then made a video recording of Brother attempting to pick up the doll; although it was shorter and lighter than Victim, Brother was able to lift only part of it a few inches off ...

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