District Court, Ogden Department The Honorable Scott M.
Hadley No. 141900806
Adams and Cherise M. Bacalski, Attorneys for Appellant
D. Reyes and Jeffrey S. Gray, Attorneys for Appellee
Kate Appleby authored this Opinion, in which Judges Michele
M. Christiansen Forster and Jill M. Pohlman concurred.
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
Injury and Death
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,
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.
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.
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.
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,
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."
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. 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.
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.
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 ...