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Court denies Shane appeal

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WORTHINGTON -- A decision was filed Tuesday on Lisa Shane's appeal of her conviction for second-degree murder while committing child neglect and the 180-month sentence resulting from the conviction. The court affirmed both the conviction and the sentence, which was an upward departure from sentencing guidelines due to the vulnerability of the child.

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Shane was declared guilty in April 2006 of the murder of her 3-month-old daughter, Ashante Chavarria, after a lengthy investigation, eight days of testimony and four hours of jury deliberation. Within months, she was sentenced to 15 years incarceration in a state facility.

Shane's appeal was based on four arguments: that the evidence was insufficient to support the conviction, that the district court abused its discretion by admitting evidence of the infant's prior injuries, that jury instructions were insufficient and that the district court erred by imposing an upward sentencing departure.

Shane was convicted of causing her daughter's death while committing felony level neglect, defined as willful deprivation of necessary health care or supervision appropriate to the child's age, when the parent is reasonably able to make necessary provisions. In the appeal, she argued that her delay in seeking medical attention for the child was not a substantial cause of death because after Ashante was injured, she had, at most, a 10 percent chance of survival, even with immediate medical attention.

Shane also argued that evidence did not prove she willfully deprived the child of health care, or that she deprived the child of care at all, only delayed it.

During the trial, evidence supported the fact that the child was injured before noon on Oct. 28, 2004, suffering a forceful blow to her skull that experts likened to the equivalent of a fall from a three-story building. Despite the fact that the child's injuries would have resulted in her gasping for air and other signs of distress, according to medical testimony, Shane brought the child to the emergency room only after her mother returned home after 11 p.m. and insisted the child be brought to the hospital.

The opinion filed by the Court of Appeals states, "The suggestion that Shane's decision not to seek immediate medical attention was not willful is preposterous. Shane's argument that the state did not deprive (Ashante) of necessary health care is equally absurd."

Regarding the argument about admitting evidence of the child's previous injuries, Shane said the state did not connect her to the injuries, which consisted of healing rib fractures and the possibility of a previous brain injury. Because Shane was the primary caregiver, responsible for the care, supervision and health care of the infant, the court believes her connection to the prior injuries was sufficient to permit admission of the evidence.

"Shane also asserts that the district court erred by not providing a limiting instruction to the jury about the use of this evidence," the opinion states. "But the pre-trial record demonstrates that Shane's counsel was hesitant to request a limiting instruction because such an instruction might have highlighted this evidence. Failure to request such an instruction was part of Shane's trial strategy ..."

The appellate judges disagreed with Shane's argument that the district court abused its discretion in sentencing, asserting that "unlike an older child who could communicate injury, pain and other distress, (Ashante) was entirely helpless and dependent on Shane to provide her with necessary care."

Under state rules, Shane can petition to have her case reviewed by the Minnesota Supreme Court within 30 days of the filing of the Court of Appeal's decision.

Shane, who is incarcerated at the Minnesota Correction Facility in Shakopee, has an anticipated release date of April 28, 2016, providing for good behavior in prison. She would then be put under supervised release until March 2021. Her parental rights over her other three children were terminated before she went to trial for Ashante's murder.

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