## Facts

- Susana Muro lived with her husband, Jose, and their two children, including eight-month-old Vivianna.
- On October 27, 2002, Muro left the children with Jose around 3:20 p.m.; Vivianna appeared normal then.
- Muro returned after 6 p.m. and noticed Vivianna was unusually quiet while being held by Jose; he said the baby was asleep and placed her in a crib.
- Around 7 to 7:30 p.m., Muro found Vivianna unresponsive, “dazed,” with partially open eyes, and limp “like a rag doll.”
- Over several hours, Muro and Jose called a hospital for advice but did not identify themselves or describe the baby as limp and unresponsive; a nurse testified she would have advised bringing the baby to the emergency room if concerned.
- Muro called her mother-in-law for advice about a “friend’s” baby, denying she was describing her own child.
- Muro did not take Vivianna to the hospital until about four hours after noticing severe symptoms.
- Doctors determined Vivianna was effectively brain dead due to a skull fracture; she died on October 28, 2002 after life support was withdrawn.
- At trial, experts testified earlier treatment would have provided a “chance” of survival, but no expert testified survival was probable with earlier treatment.
- Muro was convicted of felony child abuse resulting in death and sentenced to 20 years; the intermediate appellate court affirmed.

## Issues

1. Whether the evidence was sufficient to prove Muro knowingly and intentionally caused or permitted her child to be deprived of necessary medical care.
2. Whether the evidence was sufficient to prove, beyond a reasonable doubt, that the deprivation of medical care was a proximate cause of the child’s death for the “resulting in death” grade of the offense.
3. If proof failed on the death-result element, whether the conviction could be reduced to child abuse resulting in serious bodily injury with remand for resentencing.

## Decision

- The court held the evidence was sufficient to prove Muro knowingly and intentionally permitted Vivianna to be deprived of necessary medical care.
- The court held the evidence was insufficient, as a matter of law, to prove the deprivation of medical care was a proximate cause of Vivianna’s death.
- The court vacated the conviction for child abuse resulting in death.
- The court directed entry of judgment for felony child abuse resulting in serious bodily injury and remanded for resentencing.

## Legal Principles

- A parent’s knowing and intentional failure to obtain necessary medical care for a child can satisfy the act and mental-state elements of felony child abuse.
- When an offense is graded by a “resulting in death” element, the State must prove beyond a reasonable doubt that the defendant’s conduct was a proximate cause of death.
- Proof that earlier medical care might have improved the victim’s chance of survival, without evidence that earlier care probably would have prevented death, is insufficient to establish proximate causation for the death-grade offense.
- When evidence supports a lesser-included graded offense (serious bodily injury) but not the higher grade (death), an appellate court may vacate the higher conviction and order entry of judgment and resentencing on the lesser offense.

## Conclusion

The court concluded that Muro’s several-hour delay in obtaining medical treatment supported felony child-abuse liability, but the medical evidence established only a possibility—not a probability—that earlier treatment would have prevented the child’s death; therefore, the death-grade conviction was vacated and reduced to child abuse resulting in serious bodily injury with remand for resentencing.


State v. Muro, 269 Neb. 703, 695 N.W.2d 425 (Neb. 2005)