Mom found guilty in boy's death, but retrial a possibility

[Guest guest]

http://www.azstarnet.com/metro/251294

Tucson Region

Mom found guilty in boy's death, but retrial a possibility

By Kim

Arizona Daily Star

Tucson, Arizona | Published: 08.05.2008

Confusion over verdict forms submitted by jurors could mean a retrial

for a Tucson woman convicted Monday of negligent homicide in the death

of her 5-year-old son.

died from a 3 1/2-inch skull fracture, but there was

evidence he had also been drugged, burned and tied up in the weeks

leading up to his death. His mother, Diane Marsh, 41, was charged with

first-degree murder and four counts of child abuse.

On Monday she was convicted of the less serious charge of negligent

homicide and four counts of child abuse. The jurors decided Marsh

" intentionally and knowingly " engaged in the child abuse, but said

none of the acts was likely to cause 's death. The jurors also

said that while Deputy Pima County Attorney Jensvold proved

Marsh drugged the boy, he failed to prove Marsh caused the head injury.

Jurors were given two forms to fill out when it came to the murder

charge. On one form, they were asked if Marsh was guilty of felony

murder. On the other, they could have convicted Marsh of second-degree

murder or the less serious charges of manslaughter or negligent homicide.

The jurors wrote " guilty " next to negligent homicide but left the

other blanks empty.

Jensvold believes the jury couldn't reach a unanimous decision on the

more serious charges and therefore, Marsh could be tried for murder

again because those entries were left blank. Defense attorney Steve

Sonenberg believes the jury believed Marsh was guilty only of

negligent homicide.

Pima County Superior Court Judge Campoy will allow the

attorneys to argue their viewpoints on Aug. 26.

If the verdict stands, Marsh could be placed on probation or sent to

prison. The maximum sentence on any one count is 3.75 years.

Marsh testified last week that she spent months living her life at the

direction of her roommates, Flower Tompson and Mark Moss.

She came to believe satanic cults were out to kill her and her son,

and that Tompson knew the best way to deal with , even when it

involved physical abuse, Marsh said.

Tompson called 911 on March 21, 2007, after stopped breathing.

Resuscitation efforts failed, and died at Northwest Medical

Center.

Paramedics who went to Marsh's North Side home called the Pima County

Sheriff's Department because they saw marks on 's wrists,

ankles and feet that indicated he had been tied up and burned.

However, an autopsy revealed the skull fracture, which extended upward

from the top of his spine.

Toxicology tests also showed the boy had a higher-than-therapeutic

level of diphenhydramine in his system. Diphenhydramine is the active

ingredient in the adult sleeping medicine Tylenol Simply Sleep.

Marsh testified Thursday that it was Tompson's idea to tie her son to

a bed frame and to dip his feet in scalding hot water to discipline

him. She also said it was Tompson's idea to drug the boy so he would

sleep through the night.

had autism and frequently threw temper tantrums that included

head-banging episodes, Marsh said.

Marsh, a former U.S. Air Force cook, met Tompson and Moss in August

2006, and the two quickly moved in with her, Marsh said.

Within a month, Tompson had convinced her that satanic cults wanted

her and dead, Marsh said.

Tompson often relayed various orders to Marsh that supposedly came

down from a juvenile probation officer named " , " Marsh said.

Those orders included looking for high priests, hiding out from family

and friends who had been corrupted by the cults and making drastic

changes in her day-to-day life.

For instance, Marsh said, she stopped giving his medication

because Tompson said was working on getting him better

medications. She also stopped taking him to his therapy sessions,

school and day care because Tompson told her didn't believe they

were safe.

She also stopped going to the VA hospital because Tompson said

said they were going to kill her, Marsh said.

Marsh insisted she didn't know who caused the boy's head injury.

On the night he died, Marsh said, was still at the kitchen

table eating dinner when she went to take a bath.

While she was in the bathroom, she heard Moss yell at the boy and saw

Tompson take into her bedroom.

She heard Tompson yell, " 'Get your hands off me' " and " 'Don't touch

me,' " but couldn't see what was happening.

The boy vomited later that night, and they decided to keep an eye on

him, Marsh said.

Eventually, the boy stopped breathing, and 911 was called.

Marsh said she knew the boy was in distress but did nothing to seek

help for him for hours.

" Flower wouldn't let me call. Flower had the phone that night, and

Flower wouldn't call, " Marsh said.

Marsh never told detectives about , the satanic cults or Tompson

yelling at the boy that night.

The jury, which was made up of nine women and three men, reached its

verdict after deliberating about 12 hours over two days. The jurors

asked more than 100 questions throughout the course of the trial.

Tompson, who was charged with first-degree murder and child abuse, has

pleaded guilty to one count of child abuse under circumstances likely

to cause death or serious physical injury.

She is facing a prison sentence of five to 15 years. Moss was never

charged in connection with the case.