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For the second time in less than six months, prosecutors argued that Gabriel De La Torre was guilty of killing his girlfriend's daughter.
And this time, they got the verdict they sought.
After deliberating for an hour and 15 minutes Wednesday, a jury convicted De La Torre of first-degree murder in the death of Joselyn Hernandez. The 11-month-old girl was the daughter of De La Torre's girlfriend, Lorena Hernandez.
This was the second trial for De La Torre, who was convicted in June of abusing Joselyn. But the first jury deadlocked 11-1 on the murder charge, setting the stage for a new trial.
Ford County Attorney Terry Malone said he thought there was one key difference between the first and second trials.
"I think we did a better job of explaining the felony murder rule to the jury," he said.
The prosecution contended that De La Torre had abused Joselyn in the days before her death, and she ultimately died of her injuries. Under this theory, De La Torre committed a felony that resulted in the child's death.
But the defense said that De La Torre tripped and fell on Joselyn, accidentally killing her.
De La Torre's attorney, Steve Cott, declined to comment on the verdict.
De La Torre's story
De La Torre said he and Joselyn were at home on Sept. 6, 2009, and he was fixing a chain-link fence. Joselyn was also outside, but she became sleepy, so De La Torre decided to give her a bath.
After the bath, De La Torre carried Joselyn into the bedroom, where he tripped on the bedspread and fell forward on top of the child.
As he explained his fall to the jury, De La Torre stepped into a mockup of the bedroom to demonstrate what happened. He showed the jury that he stepped on the bedspread with his right foot, and he was holding Joselyn near his chest.
"When I took the next step, my foot got caught on the bedspread and I fell," De La Torre said as an interpreter translated. "When I was falling, my thought was to hold onto Joselyn so she wouldn't feel the impact of the fall so hard."
He said Joselyn's head struck the floor and she stopped breathing, so he got up quickly and gave her mouth-to-mouth resuscitation. When she started breathing again, he dressed her and took her to Western Plains Medical Complex.
"Why didn't you call 911 after you tripped and fell?" defense attorney Cott asked.
De La Torre said, "By the time the ambulance got to the house, I would already be at the hospital."
He said Joselyn stopped breathing while they were heading to the hospital, so he pulled over and revived her again. And when they arrived at the hospital, he turned her over to the doctors.
Later that afternoon, De La Torre learned that Joselyn was dead.
And more than a year later, he was arrested and charged with killing her.
De La Torre said after his first interview with the police, he consulted an attorney who told him to leave the country. But he decided not to take the attorney's advice.
"Why not?" Cott asked. "Because I didn't do that. What they're accusing me of," De La Torre said.
Ford County Attorney Malone later showed De La Torre photos of Joselyn's body, which had about 44 bruises, and asked for an explanation.
"Do you have any idea how those bruises got on her skull?" Malone asked.
"No," De La Torre said.
"And you have no explanation for this jury how those bruises got on her head while she was in your custody?" Malone said.
De La Torre said he did not know about the bruises.
Then Malone said, "You know when you hit her on the scalp, which was covered with hair, those bruises would never show up."
But De La Torre said, "I never hit her."
For the second time in less than six months, prosecutors argued that Gabriel De La Torre was guilty of killing his girlfriend's daughter.
And this time, they got the verdict they sought.
After deliberating for an hour and 15 minutes Wednesday, a jury convicted De La Torre of first-degree murder in the death of Joselyn Hernandez. The 11-month-old girl was the daughter of De La Torre's girlfriend, Lorena Hernandez.
This was the second trial for De La Torre, who was convicted in June of abusing Joselyn. But the first jury deadlocked 11-1 on the murder charge, setting the stage for a new trial.
Ford County Attorney Terry Malone said he thought there was one key difference between the first and second trials.
"I think we did a better job of explaining the felony murder rule to the jury," he said.
The prosecution contended that De La Torre had abused Joselyn in the days before her death, and she ultimately died of her injuries. Under this theory, De La Torre committed a felony that resulted in the child's death.
But the defense said that De La Torre tripped and fell on Joselyn, accidentally killing her.
De La Torre's attorney, Steve Cott, declined to comment on the verdict.
De La Torre's story
De La Torre said he and Joselyn were at home on Sept. 6, 2009, and he was fixing a chain-link fence. Joselyn was also outside, but she became sleepy, so De La Torre decided to give her a bath.
After the bath, De La Torre carried Joselyn into the bedroom, where he tripped on the bedspread and fell forward on top of the child.
As he explained his fall to the jury, De La Torre stepped into a mockup of the bedroom to demonstrate what happened. He showed the jury that he stepped on the bedspread with his right foot, and he was holding Joselyn near his chest.
"When I took the next step, my foot got caught on the bedspread and I fell," De La Torre said as an interpreter translated. "When I was falling, my thought was to hold onto Joselyn so she wouldn't feel the impact of the fall so hard."
He said Joselyn's head struck the floor and she stopped breathing, so he got up quickly and gave her mouth-to-mouth resuscitation. When she started breathing again, he dressed her and took her to Western Plains Medical Complex.
"Why didn't you call 911 after you tripped and fell?" defense attorney Cott asked.
De La Torre said, "By the time the ambulance got to the house, I would already be at the hospital."
He said Joselyn stopped breathing while they were heading to the hospital, so he pulled over and revived her again. And when they arrived at the hospital, he turned her over to the doctors.
Later that afternoon, De La Torre learned that Joselyn was dead.
And more than a year later, he was arrested and charged with killing her.
De La Torre said after his first interview with the police, he consulted an attorney who told him to leave the country. But he decided not to take the attorney's advice.
"Why not?" Cott asked. "Because I didn't do that. What they're accusing me of," De La Torre said.
Ford County Attorney Malone later showed De La Torre photos of Joselyn's body, which had about 44 bruises, and asked for an explanation.
"Do you have any idea how those bruises got on her skull?" Malone asked.
"No," De La Torre said.
"And you have no explanation for this jury how those bruises got on her head while she was in your custody?" Malone said.
De La Torre said he did not know about the bruises.
Then Malone said, "You know when you hit her on the scalp, which was covered with hair, those bruises would never show up."
But De La Torre said, "I never hit her."
Expert testimony
An expert in biomechanics and injury reconstruction said Joselyn could not have been injured by De La Torre falling on her.
Dr. Wilson Hayes said people whose reflexes are intact do not fall in the way De La Torre described because their knees hit the ground first, followed by their hands. This action creates a "zone of protection" for the person. Hayes said people can rotate their bodies while falling, but they cannot change direction.
"You start to fall, you've got to go in the same direction, although you can twist to protect what you're holding," he said.
Hayes said a direct fall onto Joselyn was not consistent with the laws of physics and the biomechanics of tripping and falling. He added that the bruises on her body did not fit De La Torre's explanation.
"They simply were not caused by the single fall he (De La Torre) described, for all the reasons I have noted," Hayes said.
Reach Eric Swanson at (620) 408-9917 or email him at eric.swanson@dodgeglobe.com.
