Prosecutors plan to seek tougher sentencing for a Garden City woman and man if they are convicted of child abuse and aggravated endangerment of a child in a case involving the woman's then 2-year-old special needs son.
Defendants Kiala Pollman, 26, and Elias Allen, 32, appeared at separate times in Finney County District Court on Thursday before District Judge Ricklin Pierce. Public Defender Ron Evans is representing Pollman, and Cheryl Stewart is representing Allen. Assistant Finney County Attorney Tamara Hicks is representing the state.
Two motions were made during each conference by the prosecution: one for an upward durational departure on sentencing pending conviction of either defendant, and another for the court to endorse 10 additional witnesses who will testify at trial.
With the motion for an upward durational departure granted, both defendants would appear before a jury again if convicted, at which point the prosecution would argue to a jury for harsher sentencing. Pollman and Allen both face between 31 and 136 months in state custody if convicted of child abuse, a level-five person felony, and 5 and 17 months if convicted of aggravated endangerment of a child in the alternative. It has already been noted in court that Allen has a criminal history that could affect his sentencing.
Both Pollman and Allen previously were charged with attempted second-degree murder, but Judge Pierce dropped the charge at the conclusion of a preliminary hearing in September, when he ruled that neither defendant intended to harm the child, but rather indulged in “depraved indifference” that endangered the child’s life.
The investigation began in September 2016 after the 2-year-old, who has severe Down syndrome, was admitted to Children’s Mercy Hospital in Kansas City following an appointment at a Down syndrome clinic. Physicians deemed him to be in critical condition as a result of extreme malnourishment. A social worker with the Kansas Department of Children and Families conducted an investigation that found the child’s condition to be consistent with child abuse.
During Allen’s pretrial conference Thursday, his defense counsel noted that prosecutors had offered a plea agreement. In exchange for a guilty plea to child abuse, the state would have agreed to pursue a mitigated sentence and withdraw the motion for an upward departure that might result in a harsher sentence. Stewart said she reviewed the plea agreement with Allen, and he was not interested in accepting the terms or pleading guilty. Pollman and Allen have both pleaded not guilty to the charges against them.
Stewart objected to the motion for an upward departure. She said the prosecution failed to note in its motion that Allen is not married to Pollman — though they do have a young biological son together who is not the victim in the case and were living together at the time the abuse allegedly occurred — and there is no legal obligation incumbent upon Allen to take the child in question in for medical treatment. A news release issued from the Garden City Police Department at the time of Pollman and Allen's arrests in August identified Allen as the child's stepfather, and subsequent news reports have since reported the same.
The child did not receive medical attention for more than 10 months, according to prior testimony by medical professionals employed at Children’s Mercy Hospital.
A copy of the motion states that the basis of the upward durational departure as it pertains to Allen is that “the offense involved a fiduciary responsibility between the defendant and the victim." The state will rely on the fact that Allen “lived with the victim, the victim’s siblings (one of which is his biological son,) and the victim’s mother and had a position of trust over the victim, as the offender assisted the mother with the care of the victim during the time of the offense.”
As it pertains to both defendants, the motion notes that “the victim was around 2 years of age and had been diagnosed with Down syndrome and the offender did not provide the nutrients needed to support life in their child and did not take (the) child to a medical professional for help for over 10 months.”
Judge Pierce granted the motions because, he said, the jury will only hear additional evidence pertinent to an upward durational departure if Pollman or Allen are convicted at trial.
Previous testimony during September’s preliminary hearing indicated that the child weighed 11 pounds and 12 ounces at 2 years old in August 2016. Dr. Jeremy Roderick, a family medicine practitioner at Plaza Medical Center in Garden City, testified that Pollman and Allen brought the child into his office as part of an effort to change primary care providers on Aug. 26, 2016, and told him the child, who required a feeding tube to eat, was vomiting. Roderick said he prescribed Zantac to prevent the child from regurgitating his food.
Roderick said he was concerned by the child’s weight, which he said was “not a normal weight for a 2-year-old.” During cross-examination by Stewart, Roderick said he was unable to detect the child’s temperature and noted that the boy was lethargic. Despite the child’s physical condition, Roderick said he did not admit him to the hospital because the boy had an appointment at the Down syndrome clinic in Kansas City a week later.
Though Roderick testified that he was in “disbelief” at the child’s condition and Pollman seemed concerned, he also said he saw no immediate danger or possibility of death for the child.
Conversely, Dr. Liza Murray, a physician participating in a fellowship at Children’s Mercy with a specialization in child abuse, testified she was concerned for the boy’s life after he was admitted to the hospital on Aug. 31, 2016, following an appointment with the gastroenterologist at the Down syndrome clinic. She said he was suffering from what appeared to be severe malnourishment, low blood sugar and low heart rate and had become susceptible to seizures, coma and brain damage.
Allen’s trial is scheduled for Feb. 12 to 16. Pollman’s trial is scheduled for Feb. 27 to March 5.
A case management conference was set for Feb. 2.
Contact Mark Minton at email@example.com.