Woman accused of breaking 2-year-old’s femur during diaper change set to go to trial

Composite image with background photo of 5th District Court in St. George, Utah, August 2019. Inset photo of Nancy Pena, 30, of St. George, booking photos taken in Washington County, Utah, July 30, 2019 | Background photo by Cody Blowers; booking photo courtesy of Washington County Sheriff's Office, St. George News

ST. GEORGE — A St. George woman facing charges of aggravated child abuse for allegedly severely injuring two small children has refused to plead guilty to the charges.

Nancy Pena, 30, of St. George, booking photo posted in Washington County, Utah, July 30, 2019 | File photo courtesy of the Washington County Sheriff’s Office, St. George News

Nancy Pena, 30, appeared in 5th District Court on Thursday for a change of plea hearing, but she refused to enter a guilty plea, meaning the case will now be decided by a jury. The trial is scheduled to begin Jan. 13. Pena is facing two counts of third-degree felony aggravated child abuse and inflicting serious physical injury.

Investigation into the case began July 18, involving two children, ages 2 and 4. Both children had recent visits to the emergency room at Dixie Regional Medical Center in St. George to be treated for injuries.

The 4-year-old was found to have a broken scapula in the shoulder area, a broken humerus in the upper arm and a broken bone in his pelvic region. Physicians determined that the 2-year-old suffered a fractured femur.

Pena was originally charged with four counts of aggravated child abuse, a point that was at issue during a preliminary hearing held Sept. 16.

During the hearing, the state called Amanda Joslin, a nurse practitioner with the Children’s Justice Center, to testify. She stated she examined both children and reviewed their medical records after the the 4-year old was referred to her when doctors determined the fractures were at different stages of healing, having occurred at different times.

Joslin explained that the injury to the upper arm is not typically found in children, as it is usually caused by a high-impact force from above the patient’s head, such as a “yanking or pulling injury.”

The injury to the scapula, a bone in the back of the shoulder, is uncommon as well, she said. “In fact, I’ve never seen that type of fracture in a child that young,” she said, explaining that the pelvic fracture is another that is not typically seen in children and requires high-impact force on the entire pubic region.

“All of these fractures are high-force impact fractures, which we see in rollover accidents, or when something falls on them — or hits them hard enough from behind and slams them into a hard surface in front of them,” Joslin said in her testimony.

The broken femur in the 2-year-old is consistent with an injury typically caused “by a twisting motion,” she said.

Pena’s attorney, Ken Combs, confirmed with the witness that the femur fracture could be consistent with an accidental injury, but when he asked if the three fractures found on the 4-year-old could have been accidental, Joslin said, “the high-impact fractures — it’s unlikely.”

Joslin said the children’s father and stepmother could not provide any explanation about how the injuries could have occurred accidentally.

St. George Police Detective Matthew Sherman testified that during an interview July 30, Pena, referring to the 2-year-old’s fractured femur, admitted to another detective that she “lost her temper when the child flipped over while she was changing his diaper and grabbed the child’s leg to flip him back over.”

Concerning the humerus fracture on the the 4-year-old, Sherman testified that Pena initially explained to detectives that she raised the child’s arms above his head, which was consistent with the force coming from above the child’s head as described during Joslin’s testimony.

“She said she picked the child up holding his arms over his head and held both hands like handcuffs,” Sherman said.

When asked about the fracture to the scapula and pelvis, Sherman said Pena told officers she had no idea how those injuries occurred. However, she “admitted to losing her temper during the two incidents, but denied causing the injuries intentionally,” Sherman testified.

The detective said Pena “admitted to being responsible for breaking two of the four broken bones found on the children.”

Pena told police that the family had just moved to Utah from Mexico within the last six months and that having two stepchildren and three of her own children to care for caused her a great deal of stress.

Combs asked the court to dismiss two of the four charges, since his client admitted to being responsible for two of the fractures but denied having anything to do with the others.

“Based on the evidence given, I ask the court to dismiss two counts associated with the injuries to the pelvic and scapula,” Combs said.

Prosecutor Ryan Shaum countered, saying there was no evidence indicating the fractures were caused accidentally, adding that the totality of evidence could allow the court to make a “reasonable inference” that all four injuries were caused by Pena.

Judge John J. Walters disagreed, referring to the expert witness’s testimony that the pelvic and scapula fractures could have been caused by an accident. Further, he said the court was provided “absolutely no testimony relating to how those two injuries occurred.”

“I don’t believe there is probable cause for counts three and four, so what we are left with is one count for each child,” Walters said.

Subsequently, two of the third-degree felony counts of aggravated child abuse were dismissed, and Pena will go to trial on the remaining two counts.

Copyright St. George News, SaintGeorgeUtah.com LLC, 2019, all rights reserved.

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