Indiana, PA - Indiana County

Judge dismisses homicide charge in bathtub death

by CHAUNCEY ROSS chauncey@indianagazette.net on May 14, 2013 11:00 AM

CENTER TOWNSHIP — A former Indiana-area woman has been cleared of a homicide charge, but faces trial on lesser charges connected with the Feb. 2 death of her 13-month-old son in a bathtub at her former home in White Township.

The Indiana County district attorney said late Monday he is considering whether to refile the homicide charge.

District Judge Susanne Steffee Monday afternoon dismissed counts of criminal homicide and aggravated assault following a preliminary hearing for Tonya Thomas in the Homer City district court.

Thomas, 25, and her husband, Wesley Thomas, were charged Feb. 19 by state police, who accused both of criminally neglecting their three children when they left the youngsters alone in a bathtub in their former residence along Roush Drive.

The youngest child, Ryden Wesley Thomas, was found face down and unresponsive in the water while two other siblings, a 2-year-old boy and a 3-year-old girl, played in the tub, according to investigators. The toddler died after being rushed to Indiana Regional Medical Center. The coroner’s office ruled the death an accidental drowning.

Tonya Thomas, now of Clarksburg, was held for prosecution in Indiana County Common Pleas court for three counts of endangering the welfare of children and one count of recklessly endangering another person following 35 minutes of testimony in Steffee’s court.

State police Trooper Josiah Murdock testified that he interviewed the parents at the hospital minutes after their son died. Wesley had little to say and Tonya did most of the talking, Murdock said.

She said it was routine for her to draw bath water for all three children, “about 3 to 4 inches, just enough to cover the children’s legs,” Murdock related. He said Tonya told him that she bathed the children, brushed their teeth and gave them toys to play with while she went downstairs to put towels in the dryer.

Wesley Thomas, meanwhile, was playing a video game in a bedroom near the bathroom, and Tonya told him to “keep an ear out for the kids,” according to Murdock. He said Tonya told him she checked a text message from her mother on a cellphone that was charging in the bedroom before she went downstairs.

She planned to make some snacks for the older children — Nevaeh, 3, and Aiden, 2 — and to prepare a breathing treatment for Wesley, who had asthma. But she told Murdock that while she loaded the dryer, “she got a bad feeling and went upstairs” and found Ryden face down in the water.

Tonya estimated she may have been away from the children for five minutes, Murdock said.

Murdock also testified that Tonya told him she often left the children to take care of domestic tasks and that the 3-year-old girl often alerted her to what was going on in the bathroom.

“She said, ‘Nevaeh is a little tattletale. She always tells me when something is wrong,’” Murdock testified.

The trooper also testified that he “served many court orders on the list of agencies providing services to the Thomas home” and interviewed medical agencies about their care in the weeks following Ryden’s death.

Murdock said it was a collective decision of state police investigators and the district attorney’s office to charge only Tonya Thomas with homicide.

Indiana County Chief Deputy Coroner Jerry Overman Jr. testified at the hearing that the cause of Ryden’s death was asphyxia due to freshwater drowning, and the manner was ruled accidental, although the Allegheny County medical examiner’s office has not yet sent a final autopsy report.

The ruling was based on circumstances leading to the death and the physical examination of the boy, he said.

“We got a verbal from the medical examiner’s office that day” but toxicology tests are incomplete, Overman said.

Tonya, who is due to have a baby in just a few weeks, was represented by attorney Bradley Ophaug of the Indiana County public defender’s office.

“This was a tragic accident and it has been made exponentially worse by these charges being filed,” Ophaug told Steffee, asking her to dismiss the case.

District Attorney Patrick Dougherty argued the incident fit the definition of the crimes charged.

“Clearly, the simple fact of leaving the children in the bathtub is a willful disregard … and an extremely high risk that her conduct could result in serious bodily injury or death,” Dougherty said.

Steffee held the misdemeanor endangerment charges for adjudication in the county court, but said she disagreed with the homicide and aggravated assault charges.

“I don’t find a prima facie case for that,” she said.

Ophaug said the ruling sent chills up his spine.

“There was no intent, it was a bad and horrible tragic accident … and she has been denied visitation with her other two children,” Ophaug told reporters. “She is emotionally distraught. … She hasn’t had time to grieve; she hasn’t had time to deal with the tragedy of losing her youngest son.”

Ophaug acknowledged the Thomases had been sent to parenting classes through local social service agencies.

“She is working on those skills and has acknowledged that she needs to work on it,” Ophaug said. “Any time anybody has offered her assistance she has been more than cooperative in trying to learn how to be the best parent she can be.”

Ophaug said he has been planning with Tonya to defend against the remaining charges.

“Based on her history, I’m confident that we’re going to beat the endangering the welfare of children,” Ophaug said. “We hope to reunite them all soon.”

“I was a little bit surprised” by Steffee’s ruling, Dougherty told reporters. “The way the statute is written, we believe it provides for the criminal homicide charge. In my closing, I stated directly from the jury instruction for third-degree murder, which is wanton and willful disregard — that’s what happened here.

“The judge disagreed. That is the system we work under, so we have to move on.”

Dougherty said that depending on a 3-year-old child to be a baby-sitter is extremely reckless and shows disregard for the children.

“I think basic parenting 101 says you don’t leave a 13-month-old in the tub,” Dougherty said. “I felt that from Day 1 and I feel that way now. So for the fact she is not going to be held accountable for those actions … it is what it is.”

But late Monday evening, Dougherty said he plans to meet with investigators to decide whether to refile a criminal homicide charge

“We can do that pursuant rules of criminal procedure at the magistrate level,” he said.

The rules allow the refiling of charges at the district court level because the dismissal of a case by a district judge is not the same as an acquittal by a trial judge or jury.

“Double jeopardy is not attached yet,” he said.

Tonya had been held in the Indiana County Jail with bond set at $250,000 but was allowed by Indiana County Judge William Martin to go free on unsecured bond on April 11.

Wesley Thomas, 24, who had been jailed on $50,000 bond since the time of his arrest, waived his right to a preliminary hearing and will face trial on three counts each of child welfare endangerment and reckless endangerment. Steffee approved his release on unsecured bond after he appeared for his scheduled hearing Monday.

He is represented by court-appointed attorney Robert Bell, of Indiana.

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