A Richland man convicted of assaulting his baby girl saw the case thrown out by an appellate court recently because the charging document was “constitutionally defective.”
Evan Wayne Sullivan, 32, never served a day of his four-year, two-month sentence.
He was granted a $10,000 appeal bond at sentencing in February 2015, which allowed him to remain free while he fought the conviction for second-degree assault of a child.
But even though the charge was dismissed by a three-judge panel of the state Court of Appeals, Sullivan isn’t completely in the clear.
The Spokane court gave prosecutors the option of refiling the charge in Benton County Superior Court with the proper wording.
At issue was the failure to include the word “recklessly” on the amended information against Sullivan.
A subsection of the charge in Washington state is that a person “intentionally assaults another and thereby recklessly inflicts substantial bodily harm.”
Deputy Prosecutor Emily Sullivan said she and Deputy Prosecutor Terry Bloor have been talking with Prosecutor Andy Miller about asking the state Supreme Court to review the appellate opinion.
“Obviously we’re disappointed, and we’re disappointed for the family,” Sullivan told the Herald. “It’s devastating for them to have to go through this again.”
Sullivan and Bloor will make a decision in the coming week, since the deadline to submit a petition for review with the state’s highest court is Nov. 2.
If the prosecutors opt not to appeal the ruling, Emily Sullivan said they definitely will bring a new case against the father.
The deputy prosecutor and the defendant are not related.
In the meantime, Evan Sullivan’s appeal bond remains active until the dismissal is finalized by the court.
He also is to have no contact with his daughter, who turns 4 this week. The girl and her mother are living in another state, and the girl is “doing well,” said Deputy Prosecutor Sullivan.
Gabrielle Gingrich took her then-6-month-old girl to the father’s house in May 2013. The girl did not have any injuries when she was dropped off, according to court documents.
When Gingrich returned 3 1/2 hours later, she noted a little blood on the girl’s tongue and asked what happened. Evan Sullivan answered that the baby “cut her lip,” documents said.
Back at home in Benton City, Gingrich was checking out her upset baby when she found a bruise on the side of the girl’s head above the ear and another on the back of the head, court documents said.
A doctor at Kadlec Regional Medical Center in Richland discovered a skull fracture in the area of the bruising, and “determined the injuries were not caused accidentally and were likely malicious in nature,” documents said. The girl also had a fractured shinbone.
She was flown to Sacred Heart Children’s Hospital in Spokane for treatment.
Sullivan did not testify in his trial. His attorney, Todd Harms, told jurors that Sullivan didn’t cause the baby’s injuries.
Harms tried to get the case dismissed after prosecutors presented their case to the jury. He argued then that the charging document did not include the essential element of assault and that the jury, based on the evidence presented, could not conclude beyond a reasonable doubt that the injuries were caused recklessly.
Superior Court Judge Bruce Spanner initially denied that motion. Then, at the end of trial, said he agreed with the defense but found that Sullivan was not prejudiced by the missing element of recklessness.
The three divisions of the state Court of Appeals are in disagreement on what standard of review applies when a defendant challenges a charging document after prosecutors rest, but before jurors reach a verdict.
Prosecutors cannot amend information once done presenting their case in trial.
The Spokane judges sided with their colleagues in Tacoma and found that they must “liberally construe the information when the only remedy is dismissal.”