KINGWOOD – A Tunnelton woman convicted of killing a toddler will not get a new trial or have her sentence lowered, a judge ruled Friday.
In October, a Preston County jury found Kelly Marie Tusing, 24, guilty of causing the death of 13-month-old Braylen Dawn Louk in 2018.
Louk’s family removed life support Nov. 18, 2018, after eight days in the hospital. Tusing was indicted in March 2019 on the charge of death caused by a parent, guardian or custodian by abuse. The jury could have chosen the lesser charge of causing death by neglect, or not guilty.
In December, Preston Circuit Judge Steve Shaffer sentenced Tusing to 100 years in prison.
On Friday Tusing’s attorney, Bill Frame, argued she should have either a directed verdict of acquittal or a new trial, and that the judge overstepped the limits of the statute when sentencing her.
Frame said the prosecution failed to prove Tusing guilty of either malice or intent to cause harm, during the trial, and that was required for a conviction.
“It takes implied malice to beat a child over the head,” Preston Assistant Prosecutor Megan Fields said.
She pointed to testimony by witnesses that the only ways other than by shaking or striking the child that an injury as severe as Braylen’s could have been inflicted were by falling several stories from a building or being thrown from an automobile during an accident.
Tusing was an abused child and an abused adult who was “close to snapping,” Fields said.
“I don’t believe that the jury got this wrong,” she said.
Frame reminded the judge there was evidence Braylen had an earlier brain bleed. During the trial, doctors said the “catastrophic brain injury” that caused Braylen’s brain to swell and bleed, ultimately leading to her death, would have happened only minutes before it became critically apparent and could not be older.
Fields also argued that Frame waited too long to file the motion for acquittal. Judge Shaffer agreed, denying that motion and the motion for a new trial.
He also denied Frame’s motion for a reduced sentence. The judge and Frame disagreed on how the state code should be interpreted on sentencing for this offense.
“I take it seriously,” Shaffer said of levying sentence. “I believe the court is 100% right in reading that statute and the court is going to stand by the sentence.”
Shaffer granted the motion to appoint a new attorney for Tusing to prepare an appeal to the State Supreme Court. Frame said he would not be able to do it.
TWEET@DominionPostWV
