A Pasco mother's 2009 conviction for abusing her infant daughter has been overturned and her case will be tried again in Franklin County Superior Court.
A jury found Olga Shved, 29, guilty in November 2009 of abusing her 4-month-old daughter. She was sentenced to 10 years in prison.
She avoided prison, however, while she appealed the conviction on a number of issues, including claiming the jury was erroneously allowed to consider a theory in the assault case that was not charged.
The Washington State Court of Appeals issued a decision Thursday that found the jury received improper instructions and ordered Shved's case back to Franklin County for a new trial.
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Shved's daughter was born premature on Feb. 4, 2006, and four months later paramedics were called to the family home when the baby started choking while being fed, court documents said.
The infant was taken to Kadlec Medical Center in Richland, where a doctor found numerous scratches on her body and broken bones that were at least two weeks old in the girl's upper right arm, left thigh and involving four ribs.
Two skull fractures -- one that happened in the previous few hours -- also were found, and a doctor noticed bruising on the infant's face had been covered up with makeup, documents said.
At the hospital, Shved initially denied knowing anything about the injuries but later suggested to police the injuries could have happened when she dropped the baby twice while bathing.
During the two-week trial, jurors heard two doctors testify that there was no possibility the injuries were accidental, documents said.
The defense tried to convince jurors that Shved's brother, who recently had been released from Eastern State Hospital and suffered from mental health problems, was responsible for the injuries.
The jury deliberated for about one day before finding Shved guilty of first-degree assault of a child.
According to the charging document, prosecutors claim Shved caused substantial bodily harm to her daughter and "has previously engaged in a pattern or practice of assaulting the child which has resulted in bodily harm that is greater than transient physical pain or minor temporary marks."
The law also has a second prong that can be considered in a child assault case: that a person engaged in a pattern or practice of "causing the child physical pain or agony that is equivalent to that produced by torture."
The second alternative wasn't included on the charging document, but it was on the jury instructions that explained what had to be considered for a guilty verdict to first-degree child assault, documents said.
During deliberations, the jury also asked if it had to choose between the alternatives.
The appeals judges said they don't know if jurors relied on the torture prong to reach their verdict, but said "the jury's inquiry also showed it was actively considering the torture prong because it asked how to apply to two alternatives," documents said.
Shved's attorney also argued that there was insufficient evidence to convict her, and that her statements to police at the hospital shouldn't have been admitted at trial because she didn't understand the rights she waived when she talked to them.
She also claimed that the trial judge's limits to the defense's cross examination of her brother hindered her ability to cast him as the assailant and challenged the medical testimony that the baby's injuries were not accidental, documents said.
The Court of Appeals found no error or merit in Shved's other arguments, but sent the case back to Franklin County Superior Court for a new trial limited to the single theory of first-degree child assault as charged.